a legal action are adapted to the exigencies of the particular case, and that the transaction is capable of adjustment by that procedure, without prejudice to the interests of third persons. No privity of contract between the parties is required, except that which results from the circumstances. The right on the one side and the correlative duty on the other create the necessary privity, and justify the implication of a promise by the defendant to do that which justice and equity require." See, also, Hathaway v. Town of Cincinnatus, 62 N. Y. 434, and In re Le Blanc, 14 Hun, 8. In Moore v. Shields, 121 Ind. 267, 23 N. E. 89, it was held that, in an action for money had and received, there need be proved no privity of contract other than such as arises out of the fact that the defendant has received the plaintiff's money under circumstances which make it against conscience that he should retain it. In Allen v. Stenger, 74 Ill. 119, it was said: "Assumpsit always lies to recover money due on simple contract; and this kind of equitable action to recover back money which ought not in justice to be kept is very beneficial, and therefore much encouraged. It lies only for money which, ex æquo et bono, the defendant ought to refund. When, therefore, according to this rule, one person obtains the money. of another, which it is inequitable or unjust for him to retain, the person entitled to it may maintain an action for money had and received for its recovery; and it is not necessary that there should be an express promise, as the law implies a promise. The scope of the action has been enlarged until it embraces a great variety of cases, the usual test being, does the money, in justice, belong to the plaintiff, and has the defendant received the money, and should he, in justice and right, return it to plaintiff? These facts create a privity, and the law implies the promise to pay." This doctrine is sustained by Wilson v. Turner (Ill. Sup.) 45 N. E. 820; Belden v. Perkins, 78 Ill. 449; Bank v. Robinson (Kan. Sup.) 53 Pac. 762; and a multitude of other cases. Outside of other authority, however, the question has been decided by this court in Soderberg v. King Co., 15 Wash. 194, 45 Pac. 785, 33 L. R. A. 670, where it was held that assumpsit would lie against the county for the recovery of sums charged by the sheriff as commissions upon foreclosure sales, and by him mistakenly paid into the treasury, when such sums constitute a surplus in his hands to which the judgment debtor is entitled. In that case we cited Pimental v. City of San Francisco, 21 Cal. 352; Bank of the Metropolis v. First Nat. Bank of Jersey City (C. C.) 19 Fed. 301; Bayne v. U. S., 93 U. S. 642, 23 L. Ed. 997; State v. Village of St. Johnsbury, 59 Vt. 332, 10 Atl. 531; Attorney General v. Perry, 2 Comyn, 481; Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963, 15 L. R. A. 588; U. S. v. State Bank, 96 U. S. 30, 24 L. Ed. 647; Cris63 P.-71 well v. Whitney, 13 Ind. App. 67, 41 N. E. 78; Board v. Robinson (N. M.) 34 Pac. 295; Brand v. Williams, 29 Minn. 238, 13 N. W. 42; Knapp v. Hobbs, 50 N. H. 476. We think there can be no question but that the assignment in this case is supported by almost universal authority. See Manufacturing Co. v. Marsh, 91 Pa. St. 96; Hawley v. Bristol, 39 Conn. 26. Again, it must not be forgotten that the respondents were sureties of Rundle, the defaulting contractor. It will not be claimed that Rundle would have had a defense to this action if he had succeeded in obtaining the money from the United States after having made an assignment of the funds to the bank. We think the sureties stand in no better position than the principal. It was doubtless upon the strength of the bond furnished that the bank advanced the money to Rundle for the purpose of carrying out his contract, and when the sureties took up the work that Rundle had abandoned, and carried it forward to completion, they simply placed themselves in the position which Rundle had occupied, aided in this endeavor by the money which Rundle had obtained from the bank, and which had been expended in performing the contract. We think the court erred in overruling the demurrer to the respondents' defense, and the judgment will therefore be reversed, and the cause remanded, with instruction to sustain said demurrer. REAVIS, C. J., and ANDERS and FULLERTON, JJ., concur. (24 Wash. 19) JOHNSTON v. MCCART et ux. (Supreme Court of Washington. Feb. 7, 1901.) REPLEVIN-EVIDENCE-BURDEN OF PROOF WRITTEN CONTRACTS-CONTEMPORANE- 1. Where a question of fact was properly submitted to the jury, the appellate court will not set aside the finding, there being evidence to support it. 2. In replevin for a piano for failure to make payment thereon, the defendants' plea of payment did not throw the burden of proof on the defendants, as the plaintiff must establish his ownership of the property, and hence it was not error for the court to instruct that the burden of proof was on the plaintiff. Con 3. Plaintiff sold defendants a piano on a written contract that, in case defendants did not make the required payments, the plaintiff might retake the same wherever found. temporaneous with the sale, an oral agreement was entered into whereby payment might be made, not in money, as provided in the contract, but in commissions for the sale of other instruments. Held, in replevin for the piano, that evidence of the contemporaneous oral agreement was properly received, as the same did not contradict or vary the written contract, except as to the manner of payment, which could be shown by parol. Appeal from superior court, Spokane county; Leander H. Prather, Judge. Replevin by D. S. Johnston against Thomas McCart and another. From a judgment in favor of the defendants, the plaintiff appeals. Affirmed. Mendenhall & Strong, Jerry E. Bronough, and Pritchard & Harvey, for appellant. Graves & Graves, for respondents. MOUNT, J. This action was brought to recover possession of a piano and for damages for its unlawful detention. The complaint alleges, in substance, that the appellant had agreed to sell and had delivered to respondents the piano in question, under a written contract in the nature of a conditional sale, which contract provided that, in case the respondents failed to make any of the payments at the time agreed upon, or should remove or attempt to remove or sell said instrument, then the appellant might retake the same wherever found; and, further, that respondents had failed to make the payments agreed upon, and had, without the consent of the appellant, removed said instrument from Wallace, Idaho, where the contract was made, to Spokane, Wash.; that appellant, before bringing the action, demanded possession of the respondents. which demand was refused. The respondents, after admitting the contract and removal and payments alleged, denied generally the other allegations of the complaint, and alleged affirmatively that, by a contemporaneous oral contract, payments were to be made, not in money, as provided in the contract, but in commissions for the sale of other instruments, and that by the terms of this oral contract all payments to be made upon the written contract had been made; and also alleged, by way of counterclaim, that, subsequent to the written contract, respondents had, at the request of appellant, rendered services to the appellant, the reasonable value of which more than off set the purchase price of the piano sued for. When the action was brought, appellant took possession of said piano under the statute, and had the same at the time of the trial. On the trial the jury found for the respondents. From the judgment, rendered upon the verdict, plaintiff appeals. Numerous errors are assigned in appellant's brief, which for convenience here are grouped under three classes: (1) That the verdict is not supported by, and is contrary to, the evidence; (2) that the court erred in permitting appellant's counsel, upon crossexamination of witnesses, to ask certain questions; (3) that the court erred in its instructions to the jury. Upon the first class of errors we find ample evidence in the record to support the verdict of the jury. It is a settled rule that this court will not disturb verdicts where the question of fact is properly submitted to the jury, even although this court may believe the facts to be otherwise than as found by the jury. Swadling v. Barneson, 21 Wash. 699, 59 Pac. 506. Second. While some of the questions asked upon cross-examination by respondents' counsel were undoubtedly open to criticism, we are of the opinion that the court below did not abuse its discretion in this regard, and that no reversible error was committed Third. The principal contention in this case arises upon the instruction of the court to the jury, wherein the court instructed the jury as follows: "The real issue is, was there any money due on the piano at the time it was taken? You are judges of the credibility of the witnesses. If you find that any witness has willfully testified falsely in regard to any material fact, you are at liberty to disregard his testimony entirely, except when corroborated. The burden of proof is on the plaintiff to show at the time it was taken that anything was due on the piano, and should show that fact by a preponderance of the testimony. Preponderance of the testimony is the convincing proof. If the evidence is clearly balanced on all the facts as to the payments claimed by defendants, you should find for the defendants." It is urged by appellant that this instruction is erroneous, because the action is founded upon a failure to pay money which the respondents have promised and agreed to pay, and when the respondents claimed to have made payment this is new matter, and must be set up as an affirmative defense; that is to say, the burden of proof is on the respondents to show such payment. This rule urged by appellant for application here is certainly correct in actions upon promissory notes, and where the action is founded upon a failure to pay money and the like, but is not applicable in an action for replevin or claim and delivery, as in the case at bar. In cases of this character, it devolves upon the plaintiff to prove ownership, which in this case depended upon the fact whether the defendants had failed to pay for the piano or not. Under a general denial, the defendants would have been permitted to have shown that they had fully paid for the instrument in question, and the plea of payment here neither abridged nor enlarged their right of proof in that regard, nor placed the plaintiff in any different position from that in which a general denial would have placed him. The onus is upon the plaintiff to prove title in himself, and this was the real issue in the case. The plea of payment was, in effect, a plea of property in the defendants. Under such a plea, the burden is upon the plaintiff to show his title. Cobbey, Repl. §§ 1003, 1005, 1006, 1036, 1040. It is also urged that the contemporaneous oral agreement above referred to is one upon which no evidence could have been received, because it contradicted the terms of the written contract. This oral agreement was not a contradiction of the terms of the written contract, and did not vary that contract except in the manner of payment, and this can be shown. It is also competent to show that the parties, either at the same time or subsequently, upon a new consideration, agreed how the payments provided for in the original contract might be made, either in money or money's worth, and this is not such a variance as is contemplated by the general rule here announced. 1 Greenl. Ev. 303; Weeks v. Medler, 20 Kan. 57. The other instructions complained of substantially state the law as applied to this case. We find no reversible error, and the judgment will therefore be affirmed. REAVIS, C. J., and DUNBAR, FULLERTON, and ANDERS, JJ., concur. (24 Wash. 135) CHEHALIS BOOM CO. v. CHEHALIS (Supreme Court of Washington. Feb. 28, 1901.) TAXATION-CORPORATION-FRANCHISE- 1. Where a boom company is organized under a statute giving it a right to establish and maintain a boom on a navigable stream, and to collect tolls for logs and lumber, the right, being valuable and conferred by public authority, is a franchise, and subject to taxation as such. 2. The license fee of $10 imposed annually on corporations doing business in the state is not in lieu of other franchise taxation. 3. Where a taxpayer made no application to the board of equalization for the reduction of the valuation placed on his personal property, he cannot be heard to complain afterwards that an arbitrary valuation was placed thereon. Appeal from superior court, Chehalis county; Charles W. Hodgdon, Judge. Suit by the Chehalis Boom Company, a corporation, against Chehalis county and another. From a decree in favor of defendants, plaintiff appeals. Affirmed. Sidney Moor Heath, for appellant. W. H. Abel, for respondents. REAVIS, C. J. Suit to enjoin the collection of a tax upon the franchise of a boom company. The appellant is a domestic corporation, organized in 1888 under the provisions of the statute relating to boom companies, found in section 1596 and following sections, 1 Hill's Code. The principal office and place of business of the appellant is in Chehalis county. In the year 1898 an officer of the company returned a detail list to the county assessor on certain real estate and personal property, consisting of fixtures, etc. Upon the detail list the assessor fixed the value of the real property, and thereupon entered the value of the personal property, and added the franchise of the company, fixing the value of the personal property, including the franchise, at $20,000. The errors deemed material for consideration here, as presented by the appellant, are two: (1) That there was no franchise to tax, or, if the company has a franchise, that it is not such a one as is subject to taxation; and (2) that the assessment was arbitrarily, fraudulently, and maliciously made. The first contention, that the franchise of a boom company is not subject to taxation, may be considered. The objects of the corporation, as stated in its articles, are to build, maintain, and operate booms on the Chehalis and other rivers, and obtain franchises for the same; to assort, drive, store, and deliver to owners or mills such logs as shall come into such booms; to own or condemn land for the purposes mentioned; to dig canals, build railroads, own and operate steamers, and transact any and all business pertaining to the booming and handling of logs. The statute under which the incorporation was made prescribes the privileges and liabilities of boom companies. They are authorized, generally, to improve floatable streams, and meandered rivers and sloughs, and navigable waters are declared to be public highways, and such corporations are declared to be public corporations. The improvement of the streams and sloughs and waters is deemed a public use. Such companies are authorized to charge tolls for all logs boomed by them, and they are given the right of eminent domain. It appears from the record that appellant has for many years had established a boom in the Chehalis river, and been engaged, pursuant to the purposes of its incorporation, in carrying on its business. The right of appellant to establish and maintain its boom upon the stream which is declared a public highway, and to collect tolls for logs and timber, is a privilege and franchise. An examination of the provisions of the statute under which it is incorporated clearly indicates that such rights are conferred by public authority. The contention of counsel for appellant is that the privileges received by appellant under the statute are open and common to every person or corporation, and not exclusively in appellant, and therefore not the subject of taxation, and the constitutional provision against the granting of exclusive privileges is invoked. But this question was determined adversely to this argument in Power Co. v. Judson, 21 Wash. 49, 56 Pac. 829, which was followed in Edison Electric Illuminating Co. v. Spokane County (Wash.) 60 Pac. 132. In neither of these cases was the right possessed by the company an exclusive one, in the sense that another company or person might not, under the same authority, engage in the same business, or enjoy the same privileges. The real question is, are such privileges valuable, and do they exist by warrant of public authority? The right to occupy such streams, and to charge tolls for booming logs and timber, seems to follow, without any uncertainty, the recognized designation of a franchise. Sellers v. Lumber Co., 39 Wis. 527; 4 Am. & Eng. Enc. Law, art. "Boom Companies," p. 707. It was observed in Ridpath v. Spokane County (Wash.) 63 Pac. 261: "There can be no question but that the prop erty of a domestic corporation of every nature in this state, such as this, is assessable to the corporation. This includes both tangible and intangible property. The tangible property may be valued in connection with its use with the intangible." But counsel for appellant urges that the license of $10 imposed by the legislature annually upon corporations doing business in the state is in lieu of other franchise taxation. It may be said with regard to this license fee, whatever it may be, that it goes no further than an excise upon the right of the corporation to be; that it is entirely distinct from the right to do. The privileges enjoyed by appellant in the operation of its boom seem to fall directly within the rule announced in Power Co. v. Judson, supra, and the other cases mentioned determined by this court. The assessment seems to have been upon the value of the use of the franchise in connection with the tangible property of appellant. It appears that appellant made no application to the board of equalization for the reduction of the valuation placed upon its personal property. It would seem that, under the ruling of this court in Olympia Waterworks v. Thurston County, 14 Wash. 268, 44 Pac. 267, Same v. Gelbach, 16 Wash. 482, 48 Pac. 251, and Edison Electric Illuminating Co. v. Spokane County, supra, specially applied to franchises, appellant cannot now well complain of the arbitrary valuation placed upon its personal property by the assessor. However, an examination of the testimony at the trial does not incline us to disturb the finding of the superior court upon this issue. Judgment affirmed. DUNBAR, FULLERTON, and ANDERS, JJ., concur. (24 Wash. 75) STATE v. JOHNSON. (Supreme Court of Washington. Feb. 20, 1901.) CRIMINAL LAW-ORDER GRANTING NEW TRIAL -RIGHT OF STATE TO APPEAL. 2 Ballinger's Ann. Codes & St. § 6500, subsec. 6, gives the state the right to appeal from an order granting a new trial in civil cases, and subsection 7 declares that an appeal shall not be allowed to the state in any criminal action, except when the error complained of is in setting aside the indictment or information, or in arresting the judgment, on the ground that the facts stated do not constitute a crime, or in some other material error in law not affecting the acquittal of a prisoner on the merits. Held, that the state cannot appeal from an order granting the defendant a new trial in a criminal action. Appeal from superior court, Spokane county; E. D. Benson, Judge. Alfred Johnson was convicted of perjury. The state appealed from an order granting defendant a new trial, and defendant filed a motion to dismiss the appeal. Motion granted. James Z. Moore, Miles Poindexter, and Horace Kimball, for appellant. Robertson & Miller, for respondent. DUNBAR, J. The respondent was indicted for perjury, was tried and convicted, but, upon the motion of his attorneys, the court granted him a new trial. From such order of the court the state appeals, and the respondent interposes a motion to dismiss on the ground that the order was not appealable. We think this motion must be sustained. At the common law an appeal would not lie from the ruling of a lower court in a criminal case on behalf of the state. It follows, then, that, if any right to appeal exists, it must be by constitution or by statute. While the constitution provides that the supreme court shall have appellate jurisdiction in all actions and proceedings, it does not undertake to confer the right of appeal in a particular case, but leaves such provisions to the discretion of the legislature, and the statute defines the determinations from which an appeal may be had. Section 6500, 2 Ballinger's Ann. Codes & St., recites the orders or judgments from which appeals may lie. The first six subsections of the act have reference specially to civil actions, and the fact that an appeal is provided for in civil actions from an order granting a new trial, and is not provided in subsection 7, which deals with appeals in criminal cases, would seem to exclude the idea that the statute was intended to grant the right of appeal from an order granting a new trial in a criminal action under the rule announced by the maxim that the expression of one excludes the other. If there is any provision for an appeal at all, it must be found in the last part of subsection 7, which provides that an appeal shall not be allowed to the state in any criminal action, except when the error complained of is in setting aside the indictment or information, or in arresting the judgment on the ground that the facts stated in the indictment or information do not constitute a crime, or in some other material error in law not affecting the acquittal of a prisoner on the merits. Plainly, this appeal does not fall within the first two propositions, nor do we think it is comprehended in the last. The granting of a new trial is not exclusively an error of law; for, at the most, it is a ruling of the court upon law and facts. The statute, then, not having provided, by express words or fair deduction, for an appeal from this order, the motion to dismiss will be sustained. REAVIS, C. J., and FULLERTON and ANDERS, JJ., concur. (26 Nev. 85) STATE ex rel. COHN ▼. MACK, Judge. (No. 1,583.) (Supreme Court of Nevada. March 13, 1901.) MANDAMUS-NECESSITY OF COURT RECORD. Where the record on appeal does not show that the transcribed testimony was read or referred to on the hearing of a motion for a new trial, mandamus will not be granted, on conflicting testimony, to compel the trial court to certify that it was so read or referred to, under Comp. Laws, § 3292, requiring the court to certify to the papers presented on the hearing of such motions. Original mandamus by the state, on the relation of E. Cohn, against C. E. Mack, district judge of the First judicial district in and for the county of Douglas. Writ denied. Trenmor Coffin, D. W. Virgin, and Samuel Platt, for relator. W. D. Jones and Alfred Chartz, for respondent. MASSEY, C. J. The relator brings this action to compel the respondent, the district judge, to certify, under the provisions of section 197 of the civil practice act (Comp. Laws, § 3292), that the testimony taken and written out by the reporter in the case of Yori against Cohn was read or referred to on the hearing of the motion for a new trial in the lastnamed action. The determination of the relator's right to the peremptory writ rests upon one issue, as we view it, made by that part of the respondent's answer, in which he denies that the paper sought to be certified was read or referred to on the argument of the motion for a new trial. The minutes containing the record of the proceedings of the court do not show that this testimony, as taken and written out by the shorthand reporter, was used on the hearing of said motion. It may well be doubted whether secondary evidence of the regular anu authorized proceedings of the district court may be offered except upon the showing of the loss or destruction of the record. It is a general rule, not requiring citation of authorities, that the action of the court in matters authorized or directed must be proven by its records. In the absence of such proof, and without a showing as to the loss or destruction of the record containing the evidence of the fact sought to be established, we are asked to grant the peremptory writ to compel the respondent to act, upon conflicting testimony of witnesses based upon their memories of a transaction in court which should and could have been shown by the records of the court made at the proper time. This court has held that the writ should be awarded only in a case when the party applying shows a clear right to have the respondent do the thing which he is sought to be compelled to do. State v. La Grave, 22 Nev. 417, 41 Pac. 115. Such showing not having been made, the peremptory writ will be denied. BELKNAP and FITZGERALD, JJ., con cur. MEMORANDUM DECISIONS. CITY OF OAKLAND v. CENTRAL PAC R. CO. (S. F. 1,665.) (Supreme Court of California. Dec. 29, 1900.) Department 2. Appeal from superior court, Alameda county; W. E. Greene, Judge. Action by the city of Oakland against the Central Pacific Railroad Company. From an order denying a new trial, and from a judgment in favor of defendant, plaintiff appeals. Affirmed. W. A. Dow, for appellant. H. S. Brown, for respondent. PER CURIAM. This case involves the same questions as in City of Oakland v. Southern Pac. Co. (No. 1,664; this day decided) 63 Pac. 371. Upon the authority of that case, for the reasons therein given, the judgment and order are affirmed. CROSBY v. AHART. SAME V. KIER. (Sac. 593, 598.) (Supreme Court of California. Feb. 25, 1901.) In bank. Appeal from superior court, Placer county; J. E. Prewett, Judge. Separate actions by F. C. Crosby against Peter Ahart and against C. T. Kier. From a judgment in favor of defendants, plaintiff appeals. Affirmed. A. M. Seymour, A. L. Hart, and Pullen & Wallace, for appellant. W. H. Carlin and L. L. Chamberlain, for respondents. FAY v. REED. SAME v. RICH et al. FAY et al. v. REED. (S. F. 1,509-1,511.) (Supreme Court of California. Feb. 25, 1901.) Department 2. Appeals from superior court, Santa Clara county; M. H. Hyland, Judge. Actions by Charles W. Fay against E. P. Reed and against Jacob Rich and others, and by Charles W. Fay and another against E. P. Reed, to foreclose assessments for street improvement. From judgments for plaintiffs, defendants appeal. Reversed. Jackson Hatch, for appellants. C. T. Bird, for respondents. TEMPLE, J. These are companion cases to Fay v. Reed (No. 1,264) 128 Cal. 357, 60 Pac. 927. The resolutions of intention are precisely like the resolution in that case; in fact, it is the same resolution. A petition for a rehearing was filed in that case, and was denied; and we are convinced the conclusion there reached was necessitated by previous rulings of this court. As the judgment here under consideration has the same infirmity found fatal there, and the assessment is made invalid thereby, it would serve no useful purpose to consider other points urged. For the reasons stated in the opinion in the case referred to, the judgments and orders are reversed. We concur: MCFARLAND, J.; HENSHAW, J. Rehearing denied January 29, 1901, |