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estoppel, or raise that issue in the court be, log scale by 35 per cent, or better to pay an
low, and, moreover, the evidence shows that additional sum of 50 cents per thousand feet.
William Young parted with nothing on the Omand, with the consent of Lee, subsequent-
faith of the credit memorandums. On the ly assigned his interest in the contract to
contrary, it appears by appellant's own testi- the appellants, Willman and Kellogg.
mony that they were assigned to him to se Lee entered upon the performance of the
cure a pre-existing debt. Hence there was contract, and delivered thereunder 388,480
no estoppel.

feet of logs, when the contract was rescinded The judgment appealed from is affirmed by the parties, as the court found by mu

tual consent. Payments were made on the MAIN, C. J., and BRIDGES, PARKER, contract from time to time as the work proand HOLCOMB, JJ.,

gressed, but whether sufficient to satisfy the
sum earned by Lee under the terms of the
contract was a matter of dispute between the

parties. Lee, contending that there was a LEE V. WILLMAN et al. (No. 18552.) balance due him of $752.63, filed a lien on the

unsawed logs delivered and on the lumber (Supreme Court of Washington. Nov. 18, 1924.)

sawed from other logs delivered for that

sum, and began the present action to fore1. Appeal and error email 052(7)-Ruling on ev- close the lien; seeking also the recovery of idence immaterial in view of justified finding. $200 as an attorney fee. Correctness of court's ruling, if rejecting

The appellants answered the complaint evidence of damages as too indefinite, is imma- denying that there was anything due Lee on terial, it having, on ample evidence, held there the contract, and pleading affirmatively that had been a mutual rescission of the contract; Lee had breached the contract to their damso that there was no actionable breach.

age in the sum of $1,000. 2. Logs and logging 8'(1)-No deduction un

The action was tried by the court on all of der logging contract for lumber scale under the issues, and resulted in decree in favor running log scale.

of Lee for $90.41 found to be due on the conUnder contract for cutting and delivering logs, providing, merely, for payment of $5 per tract, for $50 as an attorney fee, and a fore 1,000 feet, log measure, for all logs delivered, closure of the lien for these sums. with an additional 50 cents per 1,000 feet if the [1] The trial court, after hearing the proflumber sawed exceeded the log scale 35 per fered evidence on the question whether or cent., there is no right to deduction from price not the respondent had breached the confor lumber scale underrunning log scale,

tract, refused to admit testimony offered to 3. Evidence on 18Court may from its own show the damages the appellants had suffered knowledge fix reasonable attorney's fee. thereby. The evidence was rejected at the

Without evidence being introduced, court time it was offered for the reason apparently may from its own knowledge of the value of that it was too indefinite on which to base a the services fix and allow a reasonable attor, recovery. The appellants assign error upon ney's fee for foreclosing lien for cutting and the ruling, but we think that in view of the delivering logs.

court's ultimate conclusion the question beDepartment 2.

comes immaterial. As we have before stated, Appeal from Superior Court, Spokane the court held there had been a mutual reCounty; Webster, Judge.

scission of the contract, and the evidence

amply supports the holding. This being so, Action by C. P. Lee against Chris Willman there could be no actionable breach of the and another, doing business as the Liberty contract, and consequently no recovery in Lake Lumber Company. Decree for plain- damages as for a breach. tiff, and defendants appeal. Affirmed.

[2] The next complaint is, if we correctly Carl W. Swanson, of Spokane, for appel- understand it, that the log scale overran lants.

the lumber scale, and that the latter scale F. W. Girand, of Spokane, for respondent. fixes the basis of the respondent's right of

recovery. But we find no support for this FULLERTON, J. On November 21, 1922, contention in the contract. That instrument the respondent, C. P. Lee, entered into a plainly fixes the log scale as the measure of contract with one Omand, by the terms of the contract price, except in the instance that which Lee agreed to log for Omand a certain the lumber scale should exceed the log scale described tract of land, estimated to contain by 35 per cent. It provided for no deduction 3,000,000 feet of logs. The logs were to be on the contract price in the case that the lumdelivered at a sawmill operated by Omand in ber scale underran the log scale. suflicient quantities to keep the mill in full [3] Lastly, the appellants contend that the operation. Omand agreed to pay to Lee $3 court erred in the allowance of an attorney's per thousand feet, log measure, for all logs fee for foreclosing the lien. This contention delivered, and further agreed that if the has its foundation in the fact that no evilumber sawed from the logs exceeded the dence was tendered as to what constituted a

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(230 P.) reasonable fee. But evidence was not neces- / peals from an adverse verdict and a judg. sary. It was competent for the trial court ment thereon. from its own knowledge of the value of such (1) The first group of errors assigned are services to fix the amount of the fee. War- based upon the assumption that respondent nock v. Itawis, 38 Wash. 144, 80 P. 297; Lit failed to make a case sufficient to go to the tell v. Saulsberry, 40 Wash. 550, 82 P. 909; jury on the question of appellant's negligence, Carr v. Bonthius, 79 Wash. 282, 140 P. 339; and are argued together. We have carefully Allen v. Allen, 96 Wash, 689, 165 P. 889. read and considered respondent's evidence ren The decree is affirmed.

lating to this matter, and find it sufficient

Indeed the testimony, in part by apparently PEMBERTON, MITCHELL, HOLCOMB, disinterested witnesses, to the effect that apand MACKINTOSH, JJ., concur.

pellant at the time admitted that he was at fault, under the peculiar circumstances of

this case, is alone sufficient to carry the quesWOODRUFF v. EWALD. (No. 18756.)

tion of his negligence to the jury, hence noth

ing more need be said upon this subject. (Supreme Court of Washington. Nov. 18, The second branch of the case has to do 1924.)

with the supposed contributory negligence of 1. Municipal corporations. Em706(6)-Defend the respondent, and of the driver of the car ant's negligence in automobile collision held in which she was a passenger, upon the for jury.

theory that they were engaged in a joint ven. In action by guest in automobile for injury ture, and that therefore the driver's negliin collision with defendant's automobile, evi- gence is to be imputed to the respondent. dence of defendant's negligence held sufficient There was evidence introduced from which to go to jury.

the jury might find substantially as follows: 2. Municipal corporations ou 706 (7)--Not neg.

On Sunday morning, October 8, 1922, religence as matter of law for driver of auto- spondent, who was then the house guest of mobile not to look beyond street intersection her sister, Mrs. Burr, started from the Burr to left.

home for church in a Ford sedan automobile, It cannot be said as matter of law that belonging to and driven by Mrs. Burr; re it is negligence for automobile driver approaching intersection with car under control not to spondent occupying the rear seat in the car. look beyond street intersection to his left for Entering the city of Olympia on the Pacific approaching traffic, and same is true as to guest. Highway from the east, the car traversed 3. Damages

Fourth avenue to its intersection with Frank130(2)-Verdict for $2,250 for injury to one good leg of woman 55 years of lin street, where it turned south and proage held not excessive.

ceeded along the westerly or right-hand side Verdict for $2,250 held not excessive for of Franklin street to its intersection with injuries to good leg of woman 55 years of age, Fifth avenue, which is near the business cencapable of earning $100 per month; other leg ter of the city of Olympia, and in what may already being lame,

be termed the "congested district." The Burr 4. Damages On 208 (2)-Whether crippled con car was proceeding probably at a speed of

dition due to injuries sustained or due to pre- 8 or 10 miles an hour. As the intersection vious trouble held for jury.

was approached Mrs. Burr, the driver of the Whether crippled condition of one leg was car, looked so far to the left as to see the endue to injuries sustained in automobile acci- tire intersection, testified that it was clear, dent or development and extension of previous trouble, causing lameness in other leg, held for and thereafter gave the most of her atten. jury.

tion to the right, for the purpose of observ.

ing any traffic which might be approaching Department 1.

from her right, and would have the right of Appeal from Superior Court, Thurston way over her. Her view to the left, after County; Wilson, Judge.

she proceeded into the intersection, was clear,

and she could if she had looked, have seen Action by Frances Woodruff against Mark

any automobile approaching from the east on Ewald. Judgment for plaintiff, and defend- Fifth avenue, within a block of the intersecant appeals. Affirmed.

tion. Apparently she did not look beyond the See, also, 127 Wash. 61, 219 P. 851.

intersection to her left, nor did the respond. Frank C. Owings and Thos. L. O'Leary, ent, whose view was also unobstructed, look both of Olympia, for appellant.

beyond the intersection to the left for ap Vance & Christensen, of Olympia, for re proaching traffic. This failure to so look is spondent.

the basis for the contention that respondent

and the driver were guilty of contributory TOLMAN, J. This is an action to recover negligence. for personal injuries alleged to have been sus [2] As we view it this was a question for tained in an automobile collision. The case the jury to determine under proper instrucwas tried to a jury, and the defendant ap- ' tions. We cannot say as a matter of law

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that in a busy little city such as Olympia is, , which was intended to state only amount of in the downtown district, where every driver unsecured advances. is supposed to approach an intersection with his vehicle under control, it is negligence for

Department 2. a driver so approaching with his car under

Appeal from Superior Court, Spokane control not to look beyond the street intersec- County; Lindsley, Judge. tion to his left for approaching traffic. Much Action by D. S. Cowgill against the Citiless can we say that the passenger was at zens' State Bank of Tekoa. Judgment for fault in not so looking. So, therefore, we defendant, and plaintiff appeals. Affirmed. cannot say as a matter of law that the driver

Lawrence H. Brown and William C. Meyer, of the car occupied by respondent at the time both of Spokane, for appellant. of the accident was guilty of contributory

Post, Russell & Higgins, of Spokane, and J. negligence, and that being so, there is no oC. D. McMannis, of Tekoa, for respondent. casion to consider the question of whether or not the facts were such that the negligence

FULLERTON, J. On August 17, 1913, of the driver, if there had been any, would Charles Libby and his wife, Sadie Pride Libbe imputed to the respondent.

by, being the owners of certain lands situ[3, 4] The only remaining question to be ated in the state of Idaho, mortgaged the considered is the alleged excessive verdict. The verdict in this case was in the sum of same to 0. D. McKeeben to secure a note of

$1,175. On August 8, 1919, they mortgaged $2,250. The respondent, 55 years of age, had the same land to the respondent, Citizens' been gainfully employed for many years, for

State Bank of Tekoa, to secure a note of a long time receiving a compensation of $100

$768.66. Some time after the execution of per month. She had left her employment this latter mortgage the respondent bank some six months before the accident for the purchased the mortgage and note given to purpose of taking a rest, with the expecta- McKeehen, which then had been reduced to tion of returning to it, or a similar occupa- $934.48. On April 27, 1920, Libby and wife tion, in the near future. For several years again mortgaged the land to the respondent she had been lame in one leg, but not so as bank to secure a note of $2,500. This latter to interfere with her being gainfully employ- mortgage was an endeavor to get all the ined, or prevent her from getting about in a debtedness of the Libbys to the bank into reasonable way. The injuries complained of

one obligation, and was made up of the were to the other leg, not previously affected.

amounts due on the two mortgages above The question whether her present serious mentioned and certain advancements which and deplorable condition was due to the in the bank had made to Libby and which were jury sustained in this accident, or to a de then unsecured, the intention of the bank bevelopment and extension of her previous ing to cancel the first two mortgages on the trouble, was for the jury, and, the jury having determined that question adversely to the recording of the third. Before the mortgage

was recorded, however, the bank discovered appellant, and the verdict being modest in that the Libbys had mortgaged the property the light of that determination, we cannot

to one Murray to secure a note of $810. This interfere.

mortgage, while subsequent to the first two The judgment appealed from is affirmed.

of the mortgages, was prior to the third, and

the bank could not carry out its intention MAIN, C. J., and FULLERTON, PARKER, without making the lien for the entire sums and BRIDGES, JJ.,

due it subsequent to the Murray mortgage. It therefore recorded the mortgage and held

it as security for the unsecured advanceCOWGILL V. CITIZENS' STATE BANK OF ments it had made to the Libbys. TEKOA. (No. 18674.)

Murray assigned his note and mortgage

to the appellant, Cowgill, for collection, and (Supreme Court of Washington. Nov. 19, Cowgill brought an action in the Idaho court 1924.)

to foreclose the mortgage, making the reMortgages On 265 Mistake in statement of spondent bank a party defendant to the suit.

amount due in assignment of mortgage held The bank appeared in the suit, and set up its shown.

several mortgages, asking, among other Bank's failure to cancel two mortgages, as things, the affirmative relief of foreclosure. intended at time of execution of third one, While the matters stood in this situation, made up of amounts due on first two and cer- negotiations were begun between the respondtain unsecured advancements by bank, and ev- ent bank and Murray looking to the place idence that amount due on third mortgage was ment of the claims against the Libbys in one not circumstance inducing purchase of all three by holder of another mortgage, prior to ownership. It was thought that the property third one, held to show actual mistake, war was insufficient to pay the liens in full, and ranting equitable relief in statement of amount the negotiations were over the question of due on latter in instrument of assignment, how much of a sacrifice the one party was

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concur.

t

(230 P.) willing to make to the other. These finally Nor does the evidence disclose that the terminated in an agreement by which the re- amount due on this particular mortgage was spondent bank, whose mortgages at that time a circumstance inducing Murray to purchase aggregated some $3,200, consented to sell the mortgages. The negotiations leading up them to Murray for $2,250. A written assign- to the agreement to purchase were concluded ment was prepared and executed by the re- some 10 days before the assignment was exspondent bank purporting to express the ecuted. In this agreement the price to be agreement. It contained the following pro- paid for the mortgages was definitely fixed, vision :

although the evidence is clear that Murray “(8) First party [the respondent bank] did not then know for what sum this mortwarrants that there is due and unpaid on said gage stood as security. The evidence also mortgage for twenty-five hundred ($2,500) dol- makes it clear why, he would agree to make lars, recorded in book 1 of Mortgages, page 55, the purchase without knowledge of the facts. and on the notes the same secures, the full His representative, who took a part in all suin of fifteen hundred fourteen and 69/100 of the negotiations, and who finally concluddollars, and in any action brought by second party or bis assigns to foreclose the same will ed them, testified that the principal value of furnish evidence to that effect."

the mortgage was to perfect the title to the

property; the prior mortgages possibly beMurray, through his assignee, thereuponing defective in description. The witness took steps to complete the foreclosure pro- prepared the assignment, and was the only ceedings. At this time an individual, whose person present representing Murray at the name is variously spelled in the record, of- time of its execution. Concerning the amount fered on behalf of the Libbys to purchase the due on the mortgage he gave this testimony: property at a foreclosure sale for a sum sufficient to pay in full the obligations due upon I will say that if they had written in any oth

“The amount was not particularly material. the notes and mortgages then in process of

er sum I couldn't have had anything to say foreclosure. He contended, however, that there about it.” was not due on the third of the mortgages assigned by the respondent bank the amount Plainly, we think, since there was an acrecited in the clause of the assignment above tual mistake in the statement of the amount quoted, or any greater sum than $746.03. due on the mortgage, and since it was the When the respondent bank was called on intent of the parties to state only the actual with reference to the matter, it conceded amount due, it is mistake against which that the correct amount due on the mortgage equity will afford relief. was the amount stated by the intending pur The judgment is affirmed. chaser. Murray thereupon authorized a settlement upon this basis, and after the ter MAIN, C. J., and MITCHELL, BRIDGES, mination of the foreclosure proceedings caus- and PEMBERTON, JJ., concur. ed his assignee to institute the present action to recover as for a breach of the warranty clause contained in the instrument of assignment. The respondent bank defended J. 1. CASE THRESHING MACH. CO. V. on the ground of mutual mistake. The trial

SCOTT et al. (No. 17973.) was had before the court sitting without a

(Supreme Court of Washington. Nov. 19, jury, and resulted in a denial of recovery.

1924.) The present appeal is from the judgment so entered.

1. Judgment Om731-Judgment awarding seller While the briefs of counsel are somewhat

agreed purchase price of plow held adjudica

tion that buyer did not have right to rescind. full, we have not found that the question at issue requires extended discussion.

A judgment awarding to seller recovery of

That there was an actual mistake in the amount cation that buyer did not have right to rescind

agreed purchase price of plow held an adjudistated in the assignment to be due on the sale of the plow. mortgage mentioned therein the evidence is not in doubt. As we have said, the purpose 2. Sales Cw 129 — Buyers' demand and offer of the bank in taking the mortgage was to

looking to rescission of sale of plow and of

engine held not to effectuate rescission of sale put into one instrument all of the indebted

of engine alone. ness owing by the Libbys to the bank. This

Buyers' demand and offer looking to a reindebtedness was then represented by three scission of the sale of a plow and of an engine distinct items; the other mortgages named held not to effectuate a rescission of the sale in the assignment, and an open indebtedness of the engine alone. of the Libbys to the bank. This latter item 3. Judgment 6731-Judgment as modified on was shown to be $746.03. Since the bank did

appeal held not adjudication of rescission of not cancel these other mortgages, as was the sale of engine. intention at the time of the execution of the Where judgment of superior court awarded latter mortgage, it at best stood as security seller amount of notes evidencing purchase only for the last of the items mentioned. price of sale of engine and plow, judgment of

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Supreme Court which modified judgment by re- , rized as follows: In April, 1913, appellant ducing amount of recovery, but leaving fore- sold to respondents the engine in question, closure provisions thereof in effect as against together with a ten-bottom plow, for a statboth the engine and plow, and not determined total purchase price of $3,325; responding question pertaining to buyer's right of rescission, held not an adjudication of buyer's ent agreeing also to pay the freight thererescission of sale of the engine, so as to make on from the factory, amounting to over $550. erroneous a judgment for its value in seller's While the total purchase price was so stated replevin action.

in the written contract between the parties 4. Replevin Om75—Judgment for buyer for val.

evidencing the sale, certain stipulations ue of property held proper where property therein warranting the engine and plow evicould not be restored.

denced an intent to regard each as a sepaWhere buyer had superior title to prop- | rate sale, with reference to which it was erty replevied and seller admitted he could not agreed that $700 of the total purchase price restore property, judgment for buyer for the should be regarded as the purchase price of then value of the property held proper.

the plow. The engine and plow were accord

ingly shipped by appellant to respondents En Banc.

and received at Wenatchee. Thereupon reAppeal from Superior Court, Douglas spondents paid the freight as agreed, and in County; Hill, Judge.

payment of the total agreed purchase price Replevin by the J. I. Case Threshing Ma- gave to appellant their three promissory chine Company against C. E. Scott and an- notes for the total sum of $3,325, and as seother. Judgment for defendants, and plain-curity therefor gave to appellant a chattel tiff appeals. Affirmed.

mortgage upon the engine and plow. After Crollard & Steener, of Wenatchee, for ap

a trial of the engine and plow, respondents, pellant.

conceiving that they did not come up to the Barrows & Hanna, of Wenatchee, for re- warranty as to performance, so notified apspondents,

pellant, and the warranty not being made

good by appellant, as respondents claimed, PARKER, J. This replevin action was

they demanded that appellant return to them commenced by the plaintiff threshing ma

the notes given as the total purchase price, chine company in the superior court for together with a sum equal to the amount of Douglas county, seeking recovery of posses- freight which they had paid upon receiving sion from the defendants Scotts of a farm the engine and plow, and tendered to appeltractor engine. The plaintiff obtained the lant the engine and plow upon condition that possession of the engine from the defendants appellant surrender the notes and make repending the action, by the usual proceedings imbursement accordingly. Appellant refused in such cases. Trial was thereafter had be. to comply with this demand. Thereafter in fore the court without a jury upon the is January, 1914, appellant commenced an acsues of law and fact presented, and resulted tion in the superior court for Douglas coun. in findings and judgment being made and ty seeking recovery upon all the notes and rendered in favor of the defendants, ad- foreclosure of the chattel mortgage. Such Judging them to have superior title to the proceedings were had in that action that on engine and awarding to them a money judg- February 27, 1915, judgment was rendered ment for $1,400 against the plaintiff ; that therein by the superior court awarding to being the admitted value of the engine. The appellant recovery for the full amount of the judgment was rendered in this form because notes evidencing the total purchase price, it was found that the possession of the en- and also foreclosing the chattel mortgage gine could not be restored to the defendants. against both the engine and plow. ThereFrom this disposition of the cause in the su- after respondents appealed from that judg. perior court the plaintiff has appealed to this ment to this court. Thereafter this court court.

modified that judgment only to the extent of Our problem is in substance as to whether reducing the amount of appellant's recovery or not there was legally effected by the acts to $700 with interest thereon from the date of the parties such rescission of the contract of the sale contract, leaving the foreclosure of purchase of the engine by the respondents provisions of the judgment in full force and Scotts from appellant threshing machine effect as against both the engine and the company as to reinvest title to the engine in plow. The opinion of this court, in pursuappellant; and, if there was no rescission of ance of which its judgment modifying the the sale contract so effected, then as to judgment of the superior court was rendered, whether or not rescission was in legal ef- is found in 96 Wash. 566, 165 P 485. Both fect adjudicated by a prior judgment of the the opinion and the judgment of this court superior court for Douglas county, as mod- are wholly silent upon the question of reified by the judgment of this court, so as to scission. Thereafter respondents paid the reinvest title to the engine in appellant. judgment of $700 and interest, retaining both

As we view the controversy, the controlling the engine and the plow, thus preventing facts are not in dispute and may be summa- sale of them under the foreclosure proceed

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