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(230 P.)

to the judgment creditor, the bank, to which a sheriff's certificate of sale was issued.

[2] We think the deed given by the bank was in effect one of bargain and sale, under section 10553, Rem. Comp. Stat., which gives a form of deed as follows:

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The same section provides that every deed

in substance as above indicated shall con

vey an estate of inheritance in fee simple, and shall be adjudged an express covenant to the grantee that any grantor was seized of an indefeasible estate in fee simple free from incumbrances done or suffered by the grantor. There is a very serious dispute as to whether the bank originally represented that it was the owner of the property, it claiming that it had merely represented that it had a sheriff's certificate of sale, while Hege & Watkins claim that it represented that it was the owner. On this question the trial court found with Hege & Watkins. But even if it should be conceded that the latter knew that the bank had sold this property under a judgment, and that it had received a sheriff's certificate of sale, but that it had not received a sheriff's deed, still, under the facts, they were unquestionably led to believe that the sale had been made under a judgment against both Dobson and wife, and that by such sale their interest had been divested. Such being the fact, the bank did not deliver what it agreed to, or what its deed indicated it owned. In other words, even if the bank had procured the sheriff's deed, it still had a very defective title, if any. Under those circumstances, it would not be fair or right that Hege & Watkins should be required to accept the property and sue for damages. Whether one who has received a deed to real estate may rescind as a matter of right, or must rely upon the covenants of his deed and sue for damages, it is not necessary for us here to determine. If it be conceded that the rule is that, where a contract has been executed by the delivery of instruments of conveyance, the purchaser may not rescind, but must rely upon the covenants of his deed, yet there is at least one very general exception to this rule, which was stated by us in French et al. v. C. D. & E. Inv. Co., 114 Wash. 416, 195 P. 521, as follows:

"There is, however, one well-defined exception to this rule, and that is that an executed contract may be rescinded, and the amount of the purchase price recovered by a suit in equity, where it is alleged and proven that fraud entered into the making of the contract."

While there may not have been any actual fraud in this case, there was, in our judgment, fraud in law. It was the duty of the bank to inform Hege & Watkins of the con

dition of their title, and this, according to the finding of the lower court, they failed to do. Under the authorities, such a situation would justify the purchasers in seeking to have a rescission of the contract. It seems to us that it is but fair that under the circumstances these parties should be put in statu quo, and this is what the trial court did.

Hege & Watkins have cross-appealed as against the judgment entered in favor of the administratrix. Their argument on this branch of the case is very brief, and we think without merit. They unquestionably became indebted to the administratrix, and she is entitled to recover against them. She had nothing whatever to do with the controversy between the bank and them. The judgment is affirmed.

MAIN, C. J., and FULLERTON, MITCHELL, and PEMBERTON, JJ., concur.

CLARK v. DEPARTMENT OF LABOR AND INDUSTRIES. (No. 18559.)

(Supreme Court of Washington. Nov. 14, 1924.)

1. Master and servant ~417(7)—Decision of Department of Labor and Industries entitled to great weight.

On appeal under Workmen's Compensation Act, decision of Department of Labor and Inis on injured person to overcome it. dustries is entitled to great weight, and burden

2. Master and servant 405 (4)-Testimony held to sustain finding blow on abdomen caused appendicitis compensable as “injury;" "trauma."

Where employee, while sorting blocks, was struck on abdomen by one of them and appendicitis followed, evidence held to sustain finding that blow caused appendicitis, within Rem. Comp. St. § 7675 defining "injury" and "injured," entitling her to compensation under section 7679; word "trauma," testified to be capable of superinducing appendicitis, meaning any injury to body caused by violence, also the violence that causes it.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Injury.]

Department 2.

Appeal from Superior Court, Spokane County; Webster, Judge.

Proceeding under the Workmen's Compensation Act by Ruth Clark for personal injury, opposed by the Diamond Match ComDecision of the Departpany, employer. ment of Labor and Industries, rejecting claim, was reversed by the superior court, and the Department appeals. Affirmed.

John H. Dunbar and M. H. Weght, both of Olympia, for appellant.

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Roy A. Redfield, of Spokane, for respond-, the findings of the Department of Labor ent.

HOLCOMB, J. Respondent, an employee of the Diamond Match Company, while engaged in extra hazardous work in its factory, was injured. Her work consisted of sorting blocks conveyed from saws. The blocks measured 2 inches by 2% inches, and from 6 to 20 inches in length. While so engaged, at about 10 o'clock in the morning, on June 7, 1923, one of the blocks was thrown from a saw and struck respondent on the right side of the abdomen. Almost immediately she complained of severe pain, and suffered from nausea. The following morning her doctor determined that she was suffering from acute appendicitis, which condition continued for 11 days, at which time an operation for the removal of the appendix was performed. The appendix was found to be three times normal size, and had reddened veins, showing it to be in

a condition of inflammation. Her claim was presented to the Department of Labor and Industries, under the Workmen's Compensation Act, and was by it rejected, on the ground that "claimant's condition was not the result of the accident, within the meaning of the Compensation Act." An appeal was taken from that decision to the superior court, which, after a trial without a jury, found and concluded, in favor of respondent, that her injury was the cause of the appendicitis, and that she was entitled to recovery. From a judgment thereupon this appeal comes.

Appellant contends that two conditions must exist in order to allow compensation: (1) An accident must have occurred; (2) the disability must have resulted from such accident. Section 7675, Rem. Comp. Stat.,

and Industries are prima facie correct, and the conclusion reached by it must be sustained, unless the evidence clearly preponderates against such conclusion-citing Marney v. Industrial Insurance Department, 98 Wash. 483, 167 P. 1085, and Tomovich v. Department of Labor and Industries, 126 Wash. 287, 218 P. 197.

Appellant also contends that the question involved is purely a medical one, and the only testimony respondent has as to whether appendicitis was caused by, or the result of, the blow was that of two physicians. Four physicians, including the chief medical officer of the department, were called by appellant.

There is a direct conflict between the testimony of the doctors. Those for respondent, including the physician who treated respondent immediately after the injury, and continued the treatment until after the operation, testified that appendicitis can be superinduced by trauma. Trauma means any injury to the body caused by violence; also the violence that causes it. New Standard Dictionary.

The chief medical officer of the department seemed to be very positive in his views that appendicitis does not result from accident; that nothing could change his mind on that subject.

[1] The trial court, while properly holding that the department's decisions are entitled to great weight, and that the burden is upon the injured person to overcome the weight of the department's decisions, held, with the physicians testifying for respondent, that the blow caused the appendi

citis.

[2] The view of the trial court and the physicians testifying for respondent is for

defines the words "injury" and "injured" tified by an article in the American Medical

as follows:

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Appellant asserts that the simple fact that the accident occurred, followed by a disability, is not compensable, where the disability was the result of disease, and the disease was not the result of, or caused by, the accident.

Association Journal, of May 19, 1923, by Dr. Luddington, of New Haven, Conn., in which medical writers of world-wide fame were quoted, to the effect that appendicitis may be, and often is, caused by a blow on the abdomen, or severe muscular strain. Dr. Osler, the famous English medical authority, was quoted to the effect that, “Trauma plays a very definite rôle, and in a number of cases the symptoms have followed very closely a fall or a blow." This article in itself is very logical and convincing.

On the whole, therefore, we are satisfied that the finding of the trial court reversing the Department of Labor and Industries, and in favor of respondent, is well sustained

In Shadbolt v. Department of Labor and Industries, 121 Wash. 409, 209 P. 6S3, we held that:

It is conceded that the direct cause of by a preponderance of the satisfying evithe disability was appendicitis. Respond-dence. ent contends that the blow received was the cause of appendicitis, while appellant contends that the blow did not, and could not, produce appendicitis, or be its contribut

"Even though the appendix was diseased, and

(230 P.)

any external pressure, if its rupture was accelerated by such pressure, this would constitute an injury"

-within the meaning of the statute defining injury, supra-citing cases and authorities. This case is very much like that, and we are convinced that respondent is entitled to recover.

The judgment of the trial court is affirmed.

MITCHELL, MACKINTOSH, FULLERTON, and PEMBERTON, JJ., concur.

KOLATCH v. I. ROME & SONS et al. (No. 18754.)

port the third and fourth conclusions of law and judgment. The findings and conclusions, omitting formal parts, are as follows:

"III. That on July 13, 1922, plaintiff entered into a contract with the defendant, Rochester Wholesale House, by the terms of which the Rochester Wholesale House agreed to sell and deliver to plaintiff 3,780 pairs of woolen drawers, new, packed in original mill cases, consisting of a good assortment of sizes from 30 to 42 at 35 cents each. Said contract further provided that plaintiff deposit 20 per cent. with the Rochester Wholesale House upon said order. And plaintiff accordingly forwarded to, and the defendant has received, the sum of $252 deposit upon said contract. That said contract was in writing, and is evidenced by a series of telegrams.

"IV. That the defendant, Rochester Whole

(Supreme Court of Washington. Nov. 18, sale House, has failed, neglected, and refused

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to deliver the drawers stipulated in said contract, and has retained said deposit, but has offered to deliver as an alleged performance thereunder drawers of inferior quality and of cheaper market price, wholly in defiance with their contract with the plaintiff; that said drawers so offered were renovated and not new; were not packed in original mill cases, but in bales, were not of assorted sizes, but 95 per cent. size 32; that 'good assortment of sizes' means, to the trade, approximately the following proportions in every dozen:

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Appeal from Superior Court, King Coun- breached. ty; Brinker, Judge.

"VI. That due demand for performance of said contract has been made, which demand has been refused.

"VII. That said goods of the defendant offered in purported compliance with the contract herein, have been impounded by the serv

Action by Sander Kolatch, sole trader, doing business as the Seattle Jobbing House, against I. Rome & Sons, a corporation, and others. From judgment discharging bond for release of property held under garnish-ice of writs of garnishment, issued out of this ment, plaintiff appeals. Reversed.

Bausman, Oldham & Eggerman and Edw. L. Rosling, all of Seattle, for appellant. McClure & McClure and Walter S. Osborn all of Seattle, for respondents.

HOLCOMB, J. This appeal is from a judgment discharging and canceling a dissolution or discharge bond given to obtain the release of property held under garnishment. The appeal comes here on the transcript of the record; no statement of facts being brought up, and the only question involved is whether or not the findings sup

court on November 13, 1922, directed against Federal Reserve Bank, a corporation, and Northern Pacific Railway Company, a corporation, and that said writs have been dissolved by the giving of a redelivery bond, in which, I. Rome & Sons is principal, and the National Surety Company is surety, which bond is conditioned to pay such judgment as the court may enter in this action.

"Done in open court this 25th day of February, 1924. Otis W. Brinker, Judge.

"From the foregoing findings of fact, the court makes the following conclusions of law: "I. That plaintiff is entitled to a judgment against the Rochester Wholesale House in the sum of $976.50 with interest on $352 from

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July 24, 1922, to November 1, 1922, and on said aggregate sum from November 1, 1922, and for costs and disbursements herein, such judgment to be payable only out of the interest of the Rochester Wholesale House in the goods impounded by the writs of garnishment issued out of this court on November 13, 1922, directed against the Federal Reserve Bank, a corporation, and the Northern Pacific Railway Company, a corporation.

"II. That the bond to discharge the writs of garnishment given by defendant, I. Rome & Sons, as principal, and National Surety Company, as surety, which bond is dated November

30, 1923, operated to discharge said writs and became substituted security for such judgment as plaintiff might obtain in this action.

"III. That by the entry of the voluntary nonsuit herein with prejudice and with costs, as against the defendant I. Rome & Sons, the principal and surety on said discharge bond were released and discharged from all liability on said bond.

"IV. Judgment should be entered canceling and discharging said bond and holding the same for naught."

judgment of the court in the above-entitled case, then this obligation shall be void, otherwise to remain in full force and virtue."

The bond to discharge the garnishment was executed and filed on November 30, 1923. An order discharging the garnishment provided by statute, supra, was made on the same day. On December 18, 1923, two days prior to the trial of the action, on December 20, 1923, appellant (plaintiff below) procured an order voluntarily dismissing with prejudice the defendant, I. Rome & Sons, a corporation, from the principal action.

It will be remembered that the trial court found that "the defendant Rochester Wholesale House has failed, neglected, and refused to deliver the drawers stipulated in said contract, and has retained said deposit, but has offered to deliver as an alleged performance thereunder drawers of an inferior quality," etc., and, further, "that said goods of the defendant offered in purported compliance with the contract herein have been impounded by service of writs of garnishment issued out of this court on," etc.

Defendant Rochester Wholesale House, a nonresident corporation, was served by published summons, and a writ of garnishment was obtained to support the process, in which the Federal Reserve Bank, a corporation, and the Northern Pacific Railway Company, a corporation, were named as garnishee-defendants. The Rochester Wholesale House made no appearance, and its default was duly entered after the comple-which were discharged to the defendant, I. tion of the publication of summons.

The discharge bond was given by the defendant I. Rome & Sons, a corporation, under the provisions of section 689, Rem. Comp. Stat., providing that:

"If the defendant in the principal action, shali at any time before the entry of final judgment in said principal action, cause a bond to be executed to the plaintiff with sufficient sureties, to be approved by the officer having the writ of garnishment, or after the return of said writ, by the clerk of the court out of which said writ was issued, to the effect that he will perform the judgment of the court; the writ of garnishment shall, upon the filing of said bond with the clerk, be immediately discharged, and all proceedings had thereunder shall be vacated.

So that the court found that the defendant Rochester Wholesale House's goods, which it offered to deliver in purported compliance with its contract, were the same goods which were impounded by garnishment proceedings, and, of course, the same goods

Rome & Sons, under their discharge bond.

[1] We are compelled to conclude that, under this bond, which provided that, “if Rome & Sons, a corporation, defendants, shall perform the judgment of the court in the above-entitled action," given pursuant to the statute for a discharge bond so conditioned, Rome & Sons, as principal and its surety, rendered themselves liable for any judgment which might be rendered by the court upon appellant's cause of action.

[2] Respondent contends that the dismissal of Rome & Sons as the principal defendant varied the obligation of the surety on the discharge bond, and released it from liability thereon. We cannot assent thereIn Petri v. Manny, 99 Wash. 601, 170 Accordingly the bond was conditioned as P. 127, 1 A. L. R. 1595, wherein a dissolufollows:

"The condition of this obligation is such that, whereas, in the above-entitled case a writ of garnishment was issued by said court on the 13th day of November, 1922, directed against the Federal Reserve Bank, a corporation, and the Northern Pacific Railway Company, a corporation, and served by the sheriff of King county upon the said garnishee defendants on said day, as more fully appears by the sheriff's return on file in said cause; and

"Whereas, the defendant, I. Rome & Sons, a corporation, desires to obtain the discharge of such writ of garnishment;

"Now, therefore, if the said Rome & Sons,

to.

tion bond and attachment was dissolved, we held that sureties were not liable where several causes of action were added to the complaint after the dissolution bond was given, as to that portion of the judgment based on the added causes of action, but were liable on the original cause of action. That the material change was held not to be a variation of the surety's risk, so as to discharge him. It was there said as to such a bond and attachment:

"The intent of the statute clearly is that the bond given to perform the judgment of the

(230 P.)

shall follow from the cause of action pleaded pal from liability, in which case the surety at the time of its execution." would also have been released."

We held in Kleeb v. Bard, 12 Wash. 140, 40 P. 733, in an action upon an injunction bond, that:

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"The sureties upon a bond given to secure the satisfaction of any judgment * * * dered in a certain action, cannot, in an action upon the bond, set up the defense that their liability had been increased through the dismissal of the original action as to one of the defendants, when such defendant is one of the principals in the bond." Syllabus.

See, also, note to 51 L. R. A. (N. S.) 655, containing a large collection of cases on that subject, showing that the overwhelming weight of authority is to the effect that such dismissal of one defendant does not impair the obligation of the surety or the principal on the dissolution bond.

[3] It is true, as respondent points out, that this is not an action on a bond, but the liability of the principal and surety is

nevertheless to be determined. We feel

In McCutcheon v. Weston, 65 Cal. 37, 2 bound to conclude that the dismissal of P. 727, the court said:

"The point that judgment was recovered against one of the defendants only, in the attachment suit, is not well taken. The action was against two, and the undertaking was to pay if the plaintiff shall recover judgment in said action." "

In Campbell v. Brown, 121 Mass. 516, quoting from the syllabus:

Rome & Sons as a defendant did not release it as a principal nor as surety upon the discharge bond. The third and fourth conclusions of law, and the judgment are consequently not sustained by the findings. The judgment is therefore reversed.

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

"A. & B. were sued as joint owners of a vessel, and the vessel attached as their property. B. gave a bond to dissolve the attachment under the General Statutes [cited], in which A. did not join, and the vessel was delivered to B., who obtained judgment in his favor. Judgment (Supreme Court of Washington. was obtained against A. on default. Held, that an action would lie on the bond against B."

MORRISON v. AHRENS & AHRENS, Inc. (No. 18590.)

In that case two cases cited and relied upon by respondent, which, however, are in the minority upon the question here involved (Eveleth v. Burnham, 108 Mass. 374, and Walker v. Dresser, 110 Mass. 350) were distinguished as follows:

"No circumstances were shown, indicating that it was intended to be binding only in case of a judgment against the principal giving it (such as have been found in some other cases), which could modify the effect of the language used [citing the above cited cases]. If Brown had desired to release only his own property from attachment, and to escape liability upon any judgment against his codefendant alone, he should have given a bond to secure only such judgment as might be recovered against himself. Leonard v. Speidel, 104 Mass. 356."

In King v. Malone, 91 Conn. 342, 99 A. 691, the Supreme Court of Connecticut held that, dropping one of the defendants from the case where three defendants were sued, and property attached, in no way increased the liability of either on the bond, and did not drop such defendant from the bond, where he had joined in the bond with sureties, and recourse could still be had against the bond and sureties. The court there observed:

"As dropping Mullaley did not release him from his liability on the bond, the fact that the plaintiff was active in causing him to be dropped is of no importance. It would only be of importance had his act released the princi

1924.)

Nov. 18,

1. Money received 6(6)-Automobile dealers held not entitled to retain proceeds of old car to apply on purchase price of new car.

Automobile dealers, to whom old car was delivered without agreement as to terms of anticipated purchase of new car, except that credit should be given for sale price of old car, after sale of which parties were unable to agree on manner of payment for new car, held not entitled to hold proceeds to apply on purchase price of new car nor to deduct profit they would have made had owner made such purchase; there being no binding agreement to purchase new car if old one were sold. 2. Money received 19(4)-Dealers selling

car for owner held entitled to deduction of amount of repair bill from judgment for proceeds.

One suing for entire sale price of automobile, turned over to dealers by him for sale, thereby ratified dealers' action in making repairs essential to making sale, which was for larger sum because of them, and dealers were entitled to deduction of such amount from judgment against them for proceeds of sale.

Department 2.

Appeal from Superior Court, Spokane County; Blake, Judge.

Action by C. W. Morrison against Ahrens & Ahrens, Inc. Judgment for plaintiff, and defendant appeals. Modified.

Allen, Winston & Allen, of Spokane, for appellant.

Merritt & Curtiss, of Spokane, for respondent.

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