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his possession and acts were the possession and acts of his principal, Boulter. We must treat the matter, therefore, as if Boulter himself had done what Kinney did.

[3] He sold all the property in bulk and began to distribute the proceeds pro rata among his creditors. The sale in bulk was void as against creditors, because of C. L. c. 60, the Bulk Sales Law. The sale being void as against him, a creditor might attach the property in Flood's hands, but, when he garnishes the bank and Kinney and seeks to hold the proceeds of the property, he affirms the sale, and the money, which under a void sale would be Flood's, is Boulter's, and subject to the execution against him.

A. E. Bowe, of Cheyenne Wells, for plaintiff in error.

F. L. Grant, of Denver, for defendant in

error.

CAMPBELL, J. [1] Plaintiff, Denton, bought of defendant implement company a model tractor, and a plow to be used in connection with the tractor, and gave to the company therefor his three judgment notes, maturing at different times. When the first note became due it was not paid, and the holder reduced it to judgment. In the complaint here it is alleged that plaintiff contracted with the defendant to buy, and bought, of the latter a new, but the defend[4] It appears, however, that the company ant delivered to him an old, used, and sechas held Kinney's check ever since it was ondhand, tractor. The plaintiff had two remreceived. The defendant in error cannot edies; one in rescission, the other for damassume an equivocal position in attempting ages. He elected to rescind, and asked in to disaffirm the action of Kinney under the power. If it disaffirms the action, it must not retain any rights under that power. Holding the check, which might be sued on or cashed any day, was a retention of such a right. If the company had cashed the check, there could have been no question about this. We think that the retention of it when suing out execution amounted to the same thing, and that the defendant in error thus affirmed the action of the agent and cannot levy upon the money in his hands.

The judgment is reversed, and new trial granted.

the prayer of his complaint to have the judgment on the first note annulled and the last two of the series of three notes canceled, and incidentally a judgment for a freight bill which he paid on the shipment. The answer denied that the tractor was an old one or had been used, and alleged that it was a new one of the very kind which plaintiff bought. The answer also denies that the defendant practiced any fraud or deceit upon the plaintiff, as alleged in the complaint, either in the purchase of the implements or otherwise. There were two witnesses for the plaintiff, he being one. There were two witnesses for the defendant, its manager and a

TELLER, C. J., and WHITFORD, J., former employee who sold and delivered the

concur.

DENTON v. EMERSON-BRANTINGHAM
IMPLEMENT CO. (No. 10964.)

(Supreme Court of Colorado. Oct. 6, 1924.)
1. Sales

404-Buyer held to have option to rescind or sue for damages.

Buyer contracting for new and receiving old tractor may either rescind or sue for dam

ages.

tractor while he was in its service. The conflict in the testimony is irreconcilable; the two witnesses for the plaintiff testifying that the tractor was not new, and those for the defendant that it was new. On this evidence produced at the trial, which was to the court without a jury, the findings were for the de

fendant and the action was dismissed.

[2] We have read all the testimony in the transcript. If the plaintiff had any grievance, his remedy would seem to be for breach of an implied warranty, or on the express warranty given by the defendant at the time of the sale, and not for a rescission of the 2. Appeal and error ~1011(1)—Court's find-contract of sale on the ground that the tracing on conflicting evidence not disturbed. tor delivered was not the kind of a tractor Where evidence is conflicting, findings cannot be disturbed; court having seen and heard witnesses testify.

In Banc.

he bargained for and bought. It could serve no useful purpose to review the evidence. The record presents a not unusual case of a conflict. The judge of the trial court saw the witnesses in court and heard them testify

Error to District Court, Cheyenne County; and under the prevailing rule in this jurisArthur Cornforth, Judge.

diction the findings and judgment cannot be Suit by F. R. Denton against the Emerson- set aside. The application for supersedeas Brantingham Implement Company. Judg- is therefore denied, and the judgment is afment for defendant, and plaintiff brings er-firmed. ror. Affirmed, and supersedeas denied.

Supersedeas denied; judgment affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(230 P.)

STATE v. NILNCH. (No. 18723.) (Supreme Court of Washington. Nov. 19, 1924.)

1. Criminal law 1166(3)-Failure to arraign defendant before empaneling jury and opening statement held mere irregularity not affecting substantial rights.

Where, after empaneling of jury and opening statement of counsel, court's attention was called to fact defendant had not been arraigned, and defendant was then arraigned, and, standing mute,, court ordered plea of not guilty, and trial proceeded; no request being made for additional time to plead nor for continuance, action of court was mere irregularity not affecting defendant's substantial rights.

2. Criminal law 576(5)—Failure to bring case to trial within 60 days waived where motion to dismiss not filed until day case was set for trial.

Failure to bring case to trial within 60 days after date of filing of information was waived, where motion to dismiss was not filed until day case was set for trial, and was not called to attention of court until case was actually reached for trial.

3. Intoxicating liquors 249-Search warrant unnecessary to seize liquor in plain view in

automobile.

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ing mute, the court ordered a plea of not guilty to be entered in his behalf. No request for additional time to plead, or for a continuance, was made. This action of the trial court is assigned as error. But we think it is a mere irregularity not affecting any of appellant's substantial rights. What has already been said by this court in State v. Straub, 16 Wash. 111, 47 P. 227; State v. Sexton, 37 Wash. 110, 79 P. 634; State v. Kinghorn, 56 Wash. 131, 105 P. 234, 27 L. R. A. (N. S.) 136, and State v. Garland, 65 Wash. 666, 118 P. 907, is sufficient answer to appellant's argument, and further comment is unnecessary.

[2] 2. It is urged that the trial court erred in denying appellant's motion to dismiss for failure to bring the case to trial within 60 days after the date of the filing of the information. Passing the question of an agreement of his counsel that the case should be continued, and like matters, it appears that the motion to dismiss was not filed until the day the case was set for trial, and was not called to the attention of the court until the case was actually reached for trial. The question thus presented has been decided adversely to appellant's contention. State v. Seright, 48 Wash. 307, 93 P. 521; State v. Alexander, 65 Wash. 488, 118 P. 645; State v. Miller, 72 Wash. 154, 129 P. 1100. In the Alexander Case, supra, this court said:

"After the trial has begun, or when it is about to take place, it is too late for the defendant to move for a dismissal. The statute provides a remedy for the defendant when the prosecutor without cause does not bring the case to trial. It was not intended as a means to escape or a method of delay when the trial is at hand. If the motion had been made prior to the time of trial, the court, for good cause shown, would refuse a dismissal. When the trial is at hand, the defendant will be held to have waived his right under the statute. There was therefor no error in the refusal of

Appeal from Superior Court, Grays Harbor the court to dismiss the action when it was on County; Abel, Judge.

Mike Nilnch was convicted of unlawful possession of intoxicating liquor, and appeals. Affirmed.

trial."

[3, 4] 3. The third assignment of error is that the liquor seized by the officers without a search warrant was improperly received

Martin F. Smith, of Hoquiam, for appel-in evidence. We think it sufficiently aplant.

pears from the record that the liquor was in W. J. Murphy, of Aberdeen, for the State. plain view in the appellant's automobile, and

TOLMAN, J. Appellant was charged with unlawful possession of intoxicating liquor for the purpose of sale, etc., and by the verdict of a jury was found guilty of unlawful possession. Appealing he presents three distinct questions:

that the offense was committed in the presence of the officers, to obviate the necessity for a search warrant under the authority of State v. Llewellyn, 119 Wash. 306, 205 P. 394; State v. Miller, 72 Wash. 154, 129 P. 1100; State v. Hughlett, 124 Wash, 366, 214 P. 841; State v. Duncan, 124 Wash. 372, 214 [1] 1. After the impaneling of the jury and P. 838, and State v. Basil, 126 Wash. 155, 217 the opening statement of counsel, the court's P. 720. But, however that may be, the fact attention was called to the fact that the de- of the seizure of the liquor by the officers fendant had not theretofore been arraigned. was known to the appellant at the time, and Thereupon, over the objection of his counsel, he did not, by timely application, or otherthe defendant was arraigned and, he stand-wise, move to suppress the evidence, under For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 230 P.-9

the rule laid down in State v. Dersiy, 121 Wash. 455, 209 P. 837, 215 P. 34, State v. Smathers, 121 Wash. 472, 209 P. 839, 215 P. 35, State v. Ennis, 126 Wash. 116, 217 P. 513, and State v. McCormick, 127 Wash. 288, 220 P. 808.

We find no merit in the other errors assigned, and a discussion of them seems un

necessary.

The judgment appealed from is affirmed.

der and by which she was to and did receive the sum of $50,000 in cash, an additional sum of $10,000 when certain real property in Seattle was sold, and $30,000 additional when certain mining property in California was sold, which, it was represented, and she was induced to believe, was more than her share of the community property, and was a fair, just, and liberal settlement of the property rights of the parties.

Appellant prayed for a complete and final

MAIN; C. J., and HOLCOMB, PARKER, accounting to be had with the respondents and BRIDGES, JJ., concur.

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after they had been compelled to expose and set forth a full and complete account of all property, real and personal of every nature and description; that the agreements referred to in the complaint be set aside and held for naught; and that appellant have judgment against the defendants and each of them for an equal and undivided half of the value of all property real and personal owned by the parties at the time of the agreement mentioned, executed in July, 1921,

less the amount appellant had already received, and for such other and further relief as may be equitable.

Respondent Kelleher answered, denying all of the allegations of fraud, overreaching, deceit, and concealment, but admitted that

Appeal from Superior Court, King County; appellant and her husband reached an agree Ronald, Judge.

Action by Lavina Bullock against J. W. Bullock and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Walter S. Fulton and J. L. Corrigan, both of Seattle, for appellant.

Bausman, Oldham & Eggerman and Walter L. Nossaman, all of Seattle, for respond

ents.

ment in settlement of their property rights, and, at their request, Kelleher drew up the written agreements, etc.

Respondent Bullock answered, denying the allegations of fraud, deceit, and concealment, and admitted the making of the contract and settlement of the property rights, and that at their request respondent Kelleher drew up the agreement.

As an affirmative defense respondent Bullock set up the divorce proceedings instituted by appellant against respondent Bullock, and a supplementary contract in reference to the division and settlement of the property rights of the parties, made at the request of appellant and her attorney, whereby additional sums were paid for indebtedness of appellant in sums approximating $1,000; that the original agreement and the supplemental agreement have been fully performed by respondent Bullock; that appellant was represented in the divorce proceedings instituted by her by her attorney; and that, among other things, in her pleadings she alleged that the parties to the action had divided amicably and justly their property between them

HOLCOMB, J. Appellant complains in her action of alleged fraud of respondents in inducing her to enter into a settlement of property rights between herself and respondent Bullock. She complains that she did not receive half of the community property in a property settlement preceding a divorce. It is alleged that respondents were intimately and closely associated together in business transactions, and that respondent Kelleher had a large amount of personal property owned by the community, the Bullocks, standing in his name, and in his possession; that the character and extent of such property was unknown to appellant, but that there was in fact a large number of shares of stock of the Seattle National Bank belong-selves by written agreement signed by them, ing to the community. It is also alleged that through the concealment and deceit of respondents, and on account of her nervous and highstrung condition, caused by the acts and conduct of the respondent Bullock, she was induced to, and did, in July 1921, enter into an agreement settling and dividing the property and interests of the community un

dated July 27, 1921, and by supplemental agreement signed by them January 12, 1922, alleging that the agreements were just and equitable, and prayed that they be confirmed. The agreements were set up in full as a part of respondent Bullock's defense. It was also alleged by respondents, and shown, that in the divorce action, upon the prayer of ap

(230 P.)

pellant's complaint, the contracts dividing The decisions in those cases are not appoand settling the property rights of the par- site. In the first decision there was no questies were approved and confirmed. Among tion involved of a decree approving the setother things, the trial court in that case tlement. A property settlement was set found "that the parties to this case have di- aside at the suit of the wife for fraudulent vided amicably and justly their property be- concealment by the husband. In the second tween themselves by written agreement, decision it appears from the opinion that on signed by each of them, dated July 27, 1921, the same day the contract of settlement was and by supplemental agreement signed by entered into the wife began her action for each of the parties dated January 12, 1922"; divorce, alleging that the parties had made and the court thereupon concluded that "the a complete adjustment of their property inproperty settlement and agreements above terests. This was admitted by answer. The described should be approved and confirmed decree in the divorce action confirmed the diby the court as just and equitable." It was al- vision between the parties only as to real so alleged and shown by respondents at the property. The suit brought by the wife did trial that in the divorce proceedings the su- not relate to real property at all, but only to perior court made and filed an interlocutory personal property, which was not referred to order or judgment granting a divorce to ap in the decree, and the division of which was pellant, in which it was ordered, adjudged, not confirmed by the court. In the opinion and decreed that the parties to the action it was said: had divided amicably and justly their property between themselves by the above-mentioned written agreements, and that the agreements were approved by the court as just and equitable. Thereafter, on August 17, 1922, the superior court made and filed in the divorce action of appellant its final decree by which the interlocutory decree of February 16, 1922, was in all respects confirmed, and appellant was granted an absolute decree of divorce from respondent Bullock.

Respondent in every respect carried out the agreements of July 27, 1921, and January 12, 1922, and appellant received and retained all the moneys so paid to her by respond

ent.

The interlocutory decree of February 16, 1922, and the final decree of August 17, 1922, have never been modified, and at all times have been in full force and effect, and no appeal was taken therefrom by either of the parties. The lower court held that the prior judgment, unappealed from, unmodified, and unassailed in any direct proceeding, could not be attacked collaterally as he held is the case here.

It must be noted by the synopsis of the pleadings and the evidence given here that what appellant seeks to do is to set aside contracts which had been adjudicated in her favor as just and equitable. She has not attacked the decree, or the interlocutory decree of divorce. Therefore this is purely a collateral attack. Peyton v. Peyton, 28 Wash. 278, 68 P. 757; Schultz v. Christopher, 65 Wash. 496, 118 P. 629, 38 L. R. A. (N. S.) 780; Hicks v. Hicks, 69 Wash. 627, 125 P. 945; Loeper v. Loeper, 81 Wash. 454, 142 P. 1138; Fullington v. Fullington, 106 Wash. 239, 179 P. 843; and Hilleware v. Hilleware, 104 Wash. 361, 176 P. 330.

Appellant relies largely upon our decisions in Normile v. Denison, 109 Wash. 205, 186 P. 305, and upon second appeal, 116 Wash. 452, 199 P. 995.

"The divorce court did not dispose of the personal property of the parties in any way, but did confirm the division of the real estate.'

It was also said in the second Normile Case:

"The divorce proceedings could not have confirmed that contract unless the contract had been alleged and one or the other of the parties asked that it be annulled or confirmed, and the divorce court had acted thereon."

In the case at bar appellant had alleged the contracts involved, and had asked that they be confirmed as just and equitable, which was done. The adjudication thereon is therefore binding, unless attacked and set aside in a direct attack in the divorce case. Such is not this case.

The judgment must be and is affirmed.

MAIN, C. J., and FULLERTON, PARKER, and BRIDGES, JJ., concur.

DEHNHOFF v. HEGE et al. (No. 18514.) (Supreme Court of Washington. Nov. 18, 1924.)

Vendor and purchaser 37 (3)-Bank holding only sheriff's certificate of sale of land held liable to purchaser relying on representations of ownership.

Bank which represented itself as owner of land when it held only a sheriff's certificate of sale, which was predicated on a defective judgment, held liable to purchaser who relied upon such representations of ownership.

2. Deeds 22-Deed held one of bargain and sale under statute.

Deed, whereby bank granted, bargained, sold, conveyed, and forever quitclaimed certain realty, held one of bargain and sale, under Rem. Comp. Stat. § 10553.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Department 2.
Appeal from Superior Court, Spokane
County; Lindsley, Judge.

Action by Edna M. Dehnhoff, as administratrix of the estate of Edward Cockle, deceased, against S. E. Hege and wife and J. E. Watkins and wife and others, wherein the named defendants filed cross-complaint against plaintiff and the First National Bank of Harrington. From the judgment rendered for plaintiff against the named defendants, and for them against the First National Bank, the Bank appeals and Hege and Watkins cross-appeal. Affirmed.

kane county property. Hege & Watkins be-
ing unable to pay the administratrix within
the year, by agreement of all the parties,
they gave to her their three promissory
notes, aggregating $2,500, and at the same
time received possession of the deed executed
by the bank, and which had previously been
held in escrow. They paid one of their
notes, but refused to pay the other two, be-
cause, as they claimed, they learned at that
time that the bank did not have title to the
land which it purported to convey.
sult was that the administratrix sued Hege &
Watkins on their two notes. The bank hav-
ing been brought in as a defendant, Hege &
Watkins alleged as against it the facts out-
lined above, and also that it did not have
title to the land it had conveyed, and that

The re

Freece & Pettijohn, of Davenport, and Merritt, Lantry & Baske, of Spokane, for appellant. Tustin & Chandler, of Spokane, for re- it had represented it had such title, and that spondents.

they relied on such representations, and they sought a rescission of the transaction in so far as it affected them and the bank, depositing into court a quitclaim deed to the Spokane county property, and demanding judgment against the bank for $2,500, the amount which they had agreed to pay the administratrix.

There was a judgment for the plaintiff for the amount due on the notes, and also a judgment in favor of Hege & Watkins against the bank for the sum of $2,500 and certain interest, which judgment ordered that the deed to the Spokane county property which had been deposited in court should be delivered to the bank. The latter has appealed.

[1] The trial court found as a fact that the bank had represented to Hege & Watkins that it was the owner of the Spokane county land, whereas it was not such owner, and because thereof Hege & Watkins were entitled to a rescission and judgment for $2,500. As between the bank and Hege & Watkins, who are the principal parties to this appeal, the situation is as though the bank had deeded its Spokane county property to Hege & Watkins, and the latter had paid therefor $2,500, and they were by this action attempting to rescind the sale and recover what they had paid.

BRIDGES, J. The general facts are these: Mrs. Dehnhoff, as administratrix of the estate of Edward Cockle, was the owner of a large tract of land in Lincoln county, this state, and the First National Bank of Harrington held a sheriff's certificate of sale covering lands in Spokane county. Messrs. Hege & Watkins were real estate men, who had the sale of the Lincoln county land. They were informed by the bank that its Spokane county land was for sale. After considerable negotiations, Hege & Watkins procured the bank to make a proposition to the administratrix that it would purchase her land for a certain consideration, turning in as part of the consideration the Spokane county land, and paying the balance in cash. The administratrix refused to entertain this proposition, because she did not want the Spokane county land. After further negotiations, the following oral agreement was made: The administratrix, with the consent of the court, was to deed her property to the bank for a certain consideration, and it was to deed the Spokane coun.ty land to Hege & Watkins or their order, who agreed to pay the administratrix the sum of $4,000, being the difference between what she was to receive from the bank and But another peculiar circumstance arises. the price at which she held her land. Fif- It appears that, when Hege & Watkins teen hundred dollars of this amount was to learned that the bank did not have title, they be paid by Hege & Watkins by waiving a requested that it secure the same, and it did commission of $1,500 which they were to re- offer to obtain a sheriff's deed (the year for ceive from the administratrix for procuring redemption having expired), but Hege & Watthe sale of the land, and the balance of kins refused to accept that proposal, claim$2,500 they were to pay her within one year. ing that the sheriff's deed would not help The deed to be executed by the bank to its the title. This position on their part was property was to be held in escrow, and not based on the following facts: One Dobson delivered to Hege & Watkins until they had and wife had been the owners of the Spokane paid the administratrix. These arrange- county land, and the bank had sued them on ments were carried out by the administratrix an alleged community debt. Both defenddeeding her property to the bank and the ants were served with process, and neither latter upon the order of Hege & Watkins appeared in the action and for some unacgiving a deed to Dora A. Wyrick, who was a countable reason default and judgment were sister of Mrs. Watkins. That deed recited taken against only Mr. Dobson and not that the bank "does hereby grant, bargain, against Mrs. Dobson. Upon that judgment

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