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log scale by 35 per cent, or better to pay an additional sum of 50 cents per thousand feet. Omand, with the consent of Lee, subsequently assigned his interest in the contract to the appellants, Willman and Kellogg.

estoppel, or raise that issue in the court be low, and, moreover, the evidence shows that William Young parted with nothing on the faith of the credit memorandums. On the contrary, it appears by appellant's own testimony 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 feet of logs, when the contract was rescinded The judgment appealed from is affirmed.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 mutual consent. Payments were made on the

MAIN, C. J., and BRIDGES, PARKER, contract from time to time as the work proand HOLCOMB, JJ., concur.

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1. Appeal and error 1052 (7)-Ruling on ev-
idence immaterial in view of justified finding.
Correctness of court's ruling, in rejecting
evidence of damages as too indefinite, is imma-
terial, it having, on ample evidence, held there
had been a mutual rescission of the contract;
so that there was no actionable breach.
2. Logs and logging

8(1)-No deduction under logging contract for lumber scale under running log scale.

Under contract for cutting and delivering logs, providing, merely, for payment of $5 per 1,000 feet, log measure, for all logs delivered, with an additional 50 cents per 1,000 feet if the lumber sawed exceeded the log scale 35 per cent.. there is no right to deduction from price for lumber scale underrunning log scale. 3. Evidence 18-Court may from its own knowledge fix reasonable attorney's fee.

Without evidence being introduced, court may from its own knowledge of the value of the services fix and allow a reasonable attor: ney's fee for foreclosing lien for cutting and delivering logs.

Department 2.

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 balance due him of $752.63, filed a lien on the unsawed logs delivered and on the lumber sawed from other logs delivered for that sum, and began the present action to foreclose the lien; seeking also the recovery of $200 as an attorney fee.

The appellants answered the complaint denying that there was anything due Lee on Lee had breached the contract to their damthe contract, and pleading affirmatively that age in the sum of $1,000.

The action was tried by the court on all of the issues, and resulted in decree in favor of Lee for $90.41 found to be due on the contract, for $50 as an attorney fee, and a fore closure of the lien for these sums.

[1] The trial court, after hearing the proffered evidence on the question whether or not the respondent had breached the contract, refused to admit testimony offered to show the damages the appellants had suffered thereby. The evidence was rejected at the time it was offered for the reason apparently that it was too indefinite on which to base a recovery. The appellants assign error upon the ruling, but we think that in view of the court's ultimate conclusion the question becomes immaterial. As we have before stated,

Appeal from Superior Court, Spokane the court held there had been a mutual reCounty; Webster, Judge.

Action by C. P. Lee against Chris Willman and another, doing business as the Liberty Lake Lumber Company. Decree for plaintiff, and defendants appeal. Affirmed.

Carl W. Swanson, of Spokane, for appellants.

scission of the contract, and the evidence amply supports the holding. This being so, there could be no actionable breach of the contract, and consequently no recovery in damages as for a breach.

[2] The next complaint is, if we correctly understand it, that the log scale overran the lumber scale, and that the latter scale

F. W. Girand, of Spokane, for respondent. fixes the basis of the respondent's right of

FULLERTON, J. On November 21, 1922, the respondent, C. P. Lee, entered into a contract with one Omand, by the terms of which Lee agreed to log for Omand a certain described tract of land, estimated to contain 3,000,000 feet of logs. The logs were to be delivered at a sawmill operated by Omand in sufficient quantities to keep the mill in full operation. Omand agreed to pay to Lee $5 per thousand feet, log measure, for all logs delivered, and further agreed that if the lumber sawed from the logs exceeded the

recovery. But we find no support for this contention in the contract. That instrument plainly fixes the log scale as the measure of the contract price, except in the instance that the lumber scale should exceed the log scale by 35 per cent. It provided for no deduction on the contract price in the case that the lumber scale underran the log scale.

[3] Lastly, the appellants contend that the court erred in the allowance of an attorney's fee for foreclosing the lien. This contention has its foundation in the fact that no evidence was tendered as to what constituted a

(230 P.)

reasonable fee. But evidence was not neces- | peals from an adverse verdict and a judgsary. It was competent for the trial court ment thereon. from its own knowledge of the value of such services to fix the amount of the fee. Warnock v. Itawis, 38 Wash. 144, 80 P. 297; Littell v. Saulsberry, 40 Wash. 550, 82 P. 909; Carr v. Bonthius, 79 Wash. 282, 140 P. 339; Allen v. Allen, 96 Wash, 689, 165 P. 889. The decree is affirmed.

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

WOODRUFF v. EWALD. (No. 18756.) (Supreme Court of Washington. Nov. 18, 1924.)

4. Municipal corporations 706 (6)-Defendant's negligence in automobile collision held for jury.

In action by guest in automobile for injury in collision with defendant's automobile, evidence of defendant's negligence held sufficient to go to jury.

[1] The first group of errors assigned are based upon the assumption that respondent failed to make a case sufficient to go to the jury on the question of appellant's negligence, and are argued together. We have carefully read and considered respondent's evidence relating to this matter, and find it sufficient. Indeed the testimony, in part by apparently disinterested witnesses, to the effect that appellant at the time admitted that he was at fault, under the peculiar circumstances of this case, is alone sufficient to carry the question of his negligence to the jury, hence nothing more need be said upon this subject.

The second branch of the case has to do with the supposed contributory negligence of the respondent, and of the driver of the car in which she was a passenger, upon the theory that they were engaged in a joint venture, and that therefore the driver's negligence is to be imputed to the respondent. There was evidence introduced from which the jury might find substantially as follows: On Sunday morning, October 8, 1922, re

2. Municipal corporations 706(7)—Not neg. ligence as matter of law for driver of auto-spondent, who was then the house guest of mobile not to look beyond street intersection to left.

It cannot be said as matter of law that it is negligence for automobile driver approaching intersection with car under control not to look beyond street intersection to his left for approaching traffic, and same is true as to guest. 3. Damages 130(2)-Verdict for $2,250 for injury to one good leg of woman 55 years of age held not excessive.

Verdict for $2,250 held not excessive for injuries to good leg of woman 55 years of age, capable of earning $100 per month; other leg already being lame.

4. Damages 208 (2)-Whether crippled condition due to injuries sustained or due to previous trouble held for jury.

Whether crippled condition of one leg was due to injuries sustained in automobile accident or development and extension of previous trouble, causing lameness in other leg, held for jury.

Department 1.

her sister, Mrs. Burr, started from the Burr home for church in a Ford sedan automobile, belonging to and driven by Mrs. Burr; respondent occupying the rear seat in the car. Entering the city of Olympia on the Pacific Highway from the east, the car traversed Fourth avenue to its intersection with Franklin street, where it turned south and proceeded along the westerly or right-hand sidé of Franklin street to its intersection with Fifth avenue, which is near the business center of the city of Olympia, and in what may be termed the "congested district." The Burr car was proceeding probably at a speed of 8 or 10 miles an hour. As the intersection was approached Mrs. Burr, the driver of the car, looked so far to the left as to see the entire intersection, testified that it was clear, and thereafter gave the most of her attention to the right, for the purpose of observing any traffic which might be approaching 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.

Action by Frances Woodruff against Mark Ewald. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 127 Wash. 61, 219 P. 851.

Frank C. Owings and Thos. L. O'Leary, both of Olympia, for appellant.

she proceeded into the intersection, was clear, and she could if she had looked, have seen any automobile approaching from the east on Fifth avenue, within a block of the intersection. Apparently she did not look beyond the intersection to her left, nor did the respondent, whose view was also unobstructed, look beyond the intersection to the left for ap

Vance & Christensen, of Olympia, for re-proaching traffic. This failure to so look is spondent.

TOLMAN, J. This is an action to recover for personal injuries alleged to have been sustained in an automobile collision. The case was tried to a jury, and the defendant ap

the basis for the contention that respondent and the driver were guilty of contributory negligence.

[2] As we view it this was a question for the jury to determine under proper instructions. We cannot say as a matter of law

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

that in a busy little city such as Olympia is, in the downtown district, where every driver is supposed to approach an intersection with his vehicle under control, it is negligence for a driver so approaching with his car under control not to look beyond the street intersection to his left for approaching traffic. Much less can we say that the passenger was at fault in not so looking. So, therefore, we cannot say as a matter of law that the driver of the car occupied by respondent at the time of the accident was guilty of contributory negligence, and that being so, there is no occasion to consider the question of whether or not the facts were such that the negligence of the driver, if there had been any, would be imputed to the respondent.

which was intended to state only amount of unsecured advances.

Department 2.

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

Action by D. S. Cowgill against the Citizens' State Bank of Tekoa. Judgment for defendant, and plaintiff appeals. Affirmed.

Lawrence H. Brown and William C. Meyer, both of Spokane, for appellant.

Post, Russell & Higgins, of Spokane, and J. D. McMannis, of Tekoa, for respondent.

FULLERTON, J. On August 17, 1913, Charles Libby and his wife, Sadie Pride Libby, being the owners of certain lands situated in the state of Idaho, mortgaged the

same to O. D. McKeehen to secure a note of

$1,175. On August 8, 1919, they mortgaged the same land to the respondent, Citizens' State Bank of Tekoa, to secure a note of $768.66. Some time after the execution of

this latter mortgage the respondent bank purchased the mortgage and note given to McKeehen, which then had been reduced to $934.48. On April 27, 1920, Libby and wife again mortgaged the land to the respondent bank to secure a note of $2,500. This latter mortgage was an endeavor to get all the indebtedness of the Libbys to the bank into one obligation, and was made up of the amounts due on the two mortgages above

[3, 4] The only remaining question to be considered is the alleged excessive verdict. The verdict in this case was in the sum of $2,250. The respondent, 55 years of age, had been gainfully employed for many years, for a long time receiving a compensation of $100 per month. She had left her employment some six months before the accident for the purpose of taking a rest, with the expectation of returning to it, or a similar occupation, in the near future. For several years she had been lame in one leg, but not so as to interfere with her being gainfully employed, or prevent her from getting about in a reasonable way. The injuries complained of were to the other leg, not previously affected. The question whether her present serious and deplorable condition was due to the injury sustained in this accident, or to a development and extension of her previous trouble, was for the jury, and, the jury having to cancel the first two mortgages on the ing determined that question adversely to the appellant, and the verdict being modest in the light of that determination, we cannot interfere.

mentioned and certain advancements which the bank had made to Libby and which were

then unsecured, the intention of the bank be

recording of the third. Before the mortgage was recorded, however, the bank discovered that the Libbys had mortgaged the property to one Murray to secure a note of $810. This mortgage, while subsequent to the first two 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., concur.

The judgment appealed from is affirmed.

due it subsequent to the Murray mortgage. It therefore recorded the mortgage and held it as security for the unsecured advance

COWGILL v. CITIZENS' STATE BANK OF ments it had made to the Libbys.

TEKOA. (No. 18674.)

(Supreme Court of Washington.

1924.) Mortgages265 Mistake in statement of amount due in assignment of mortgage held shown.

Murray assigned his note and mortgage to the appellant, Cowgill, for collection, and Nov. 19, Cowgill brought an action in the Idaho court to foreclose the mortgage, making the respondent bank a party defendant to the suit. The bank appeared in the suit, and set up its 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 placeidence 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, warwas 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

(230 P.)

willing to make to the other. These finally terminated in an agreement by which the respondent bank, whose mortgages at that time aggregated some $3,200, consented to sell them to Murray for $2,250. A written assignment was prepared and executed by the respondent bank purporting to express the agreement. It contained the following provision:

“(8) First party [the respondent bank] warrants that there is due and unpaid on said mortgage for twenty-five hundred ($2,500) dollars, recorded in book 1 of Mortgages, page 55, and on the notes the same secures, the full dollars, and in any action brought by second party or his assigns to foreclose the same will

sum of fifteen hundred fourteen and 69/100

furnish evidence to that effect."

Nor does the evidence disclose that the amount due on this particular mortgage was a circumstance inducing Murray to purchase the mortgages. The negotiations leading up to the agreement to purchase were concluded some 10 days before the assignment was executed. In this agreement the price to be paid for the mortgages was definitely fixed, although the evidence is clear that Murray did not then know for what sum this mortgage stood as security. The evidence also makes it clear why he would agree to make the purchase without knowledge of the facts. His representative, who took a part in all of the negotiations, and who finally concluded them, testified that the principal value of the mortgage was to perfect the title to the property; the prior mortgages possibly beMurray, through his assignee, thereupon ing 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 the notes and mortgages then in process of foreclosure. He contended, however, that there was not due on the third of the mortgages assigned by the respondent bank the amount recited in the clause of the assignment above quoted, or any greater sum than $746.03. When the respondent bank was called on with reference to the matter, it conceded that the correct amount due on the mortgage was the amount stated by the intending purchaser. Murray thereupon authorized a settlement upon this basis, and after the termination of the foreclosure proceedings caused 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 on the ground of mutual mistake. The trial was had before the court sitting without a jury, and resulted in a denial of recovery. The present appeal is from the judgment so entered.

While the briefs of counsel are somewhat full, we have not found that the question at issue requires extended discussion. That there was an actual mistake in the amount stated in the assignment to be due on the mortgage mentioned therein the evidence is not in doubt. As we have said, the purpose of the bank in taking the mortgage was to put into one instrument all of the indebtedness owing by the Libbys to the bank. This indebtedness was then represented by three distinct items; the other mortgages named in the assignment, and an open indebtedness of the Libbys to the bank. This latter item was shown to be $746.03. Since the bank did not cancel these other mortgages, as was the intention at the time of the execution of the latter mortgage, it at best stood as security only for the last of the items mentioned.

I will say that if they had written in any oth"The amount was not particularly material. er sum I couldn't have had anything to say about it."

Plainly, we think, since there was an actual mistake in the statement of the amount due on the mortgage, and since it was the intent of the parties to state only the actual amount due, it is a mistake against which equity will afford relief.

The judgment is affirmed.

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

.

J. I. CASE THRESHING MACH. Co. v.
SCOTT et al. (No. 17973.)
(Supreme Court of Washington. Nov. 19,
1924.)

1. Judgment 731-Judgment awarding seller
agreed purchase price of plow held adjudica-
tion that buyer did not have right to rescind.

A judgment awarding to seller recovery of cation that buyer did not have right to rescind agreed purchase price of plow held an adjudisale of the plow.

2. Sales 129 - Buyers' demand and offer looking to rescission of sale of plow and of engine held not to effectuate rescission of sale of engine alone.

Buyers' demand and offer looking to a rescission of the sale of a plow and of an engine held not to effectuate a rescission of the sale of the engine alone.

3. Judgment 731-Judgment as modified on appeal held not adjudication of rescission of sale of engine.

Where judgment of superior court awarded seller amount of notes evidencing purchase price of sale of engine and plow, judgment of

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

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 rescission of sale of the engine, so as to make erroneous a judgment for its value in seller's replevin action.

4. Replevin 75-Judgment for buyer for value of property held proper where property

could not be restored.

ent agreeing also to pay the freight thereon from the factory, amounting to over $550. While the total purchase price was so stated in the written contract between the parties evidencing the sale, certain stipulations therein warranting the engine and plow evidenced an intent to regard each as a sepa

Where buyer had superior title to prop-rate sale, with reference to which it was erty replevied and seller admitted he could not restore property, judgment for buyer for the then value of the property held proper.

agreed that $700 of the total purchase price should be regarded as the purchase price of the plow. The engine and plow were accordingly shipped by appellant to respondents and received at Wenatchee. Thereupon reAppeal from Superior Court, Douglas spondents paid the freight as agreed, and in County; Hill, Judge.

En Banc.

Replevin by the J. I. Case Threshing Machine Company against C. E. Scott and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Crollard & Steener, of Wenatchee, for appellant.

Barrows & Hanna, of Wenatchee, for respondents.

PARKER, J. This replevin action was commenced by the plaintiff threshing machine company in the superior court for Douglas county, seeking recovery of possession from the defendants Scotts of a farm tractor engine. The plaintiff obtained the possession of the engine from the defendants pending the action, by the usual proceedings in such cases. Trial was thereafter had before the court without a jury upon the issues of law and fact presented, and resulted in findings and judgment being made and rendered in favor of the defendants, adjudging them to have superior title to the engine and awarding to them a money judgment for $1,400 against the plaintiff; that being the admitted value of the engine. The judgment was rendered in this form because it was found that the possession of the engine could not be restored to the defendants. From this disposition of the cause in the superior court the plaintiff has appealed to this court.

Our problem is in substance as to whether or not there was legally effected by the acts of the parties such rescission of the contract of purchase of the engine by the respondents Scotts from appellant threshing machine company as to reinvest title to the engine in appellant; and, if there was no rescission of the sale contract so effected, then as to whether or not rescission was in legal effect adjudicated by a prior judgment of the superior court for Douglas county, as modified by the judgment of this court, so as to reinvest title to the engine in appellant.

As we view the controversy, the controlling facts are not in dispute and may be summa

payment of the total agreed purchase price gave to appellant their three promissory notes for the total sum of $3,325, and as security therefor gave to appellant a chattel mortgage upon the engine and plow. After a trial of the engine and plow, respondents, conceiving that they did not come up to the warranty as to performance, so notified appellant, and the warranty not being made good by appellant, as respondents claimed, they demanded that appellant return to them the notes given as the total purchase price, together with a sum equal to the amount of freight which they had paid upon receiving the engine and plow, and tendered to appellant the engine and plow upon condition that appellant surrender the notes and make reimbursement accordingly. Appellant refused to comply with this demand. Thereafter in January, 1914, appellant commenced an action in the superior court for Douglas county seeking recovery upon all the notes and foreclosure of the chattel mortgage. Such proceedings were had in that action that on February 27, 1915, judgment was rendered therein by the superior court awarding to appellant recovery for the full amount of the notes evidencing the total purchase price, and also foreclosing the chattel mortgage against both the engine and plow. Thereafter respondents appealed from that judgment to this court. Thereafter this court modified that judgment only to the extent of reducing the amount of appellant's recovery to $700 with interest thereon from the date of the sale contract, leaving the foreclosure provisions of the judgment in full force and effect as against both the engine and the plow. The opinion of this court, in pursuance of which its judgment modifying the judgment of the superior court was rendered, is found in 96 Wash. 566, 165 P 485. Both the opinion and the judgment of this court are wholly silent upon the question of rescission. Thereafter respondents paid the judgment of $700 and interest, retaining both the engine and the plow, thus preventing sale of them under the foreclosure proceed

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