(44 Wash. 282)

BAIN v. TIOMS et ux. (Supreme Court of Washington. Nov. 14, 1906.) 1. APPEARANCE-SPECIAL APPEARANCE.

Where defendants, by motion reciting that they were "appearing specially herein for the purposes of questioning the jurisdiction of this court, and for no other purpose," moved that "such judgment in the above-entitled action be set aside, that said action be dismissed, and that defendants have judgment against the plaintiff for their costs and disbursements, and for such other relief as to the court might seem just," and some of the affidavits in support of the motion set forth facts going to the merits of the controversy, their appearance must be construed to be general.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appearance, § 52.] 2. APPEAL AND ERROR

CAUSE-REMAND.

-

DETERMINATION OF

Where, on appeal from an order denying a motion to set aside a default judgment, the appellate court holds the service in the case to be insufficient, it necessitates the remanding of the case, with instructions to the trial court to treat appellants as having waived service, their motion having been equivalent to a general appearance.

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Thomas II. Bain against J. C. Thoms and another. From an order denying defendant's motion to set aside a default judgment, he appeals. Remanded on offer of plaintiff.

George E. Knapp and John B. Shorett, for appellants. Everett Smith and Thos. H. Bain, for respondent.

ROOT, J. Respondent began this action to recover certain moneys alleged to be withheld by appellant J. C. Thoms. Service upon defendants was made, or attempted to be made, by leaving copies of the summons and complaint at the residence of one Mrs. Treisch, in Seattle, where defendants were alleged to have had their usual place of abode. Neither of defendants appeared, and nearly 90 days thereafter default was entered as to each, and judgment thereupon. Subsequently defendants, by a motion reciting that they were "appearing specially herein for the purposes of questioning the jurisdiction of this court, and for no other purpose," moved that "said judgment in the above-entitled action be set aside, that said action be dismissed, and that defendants have judgment against plaintiff for their costs and disbursements herein, and for such other and further relief as to the court may seem just." This motion was based upon the record and files, and upon affidavits of the defendants and others, the affidavits setting forth that they did not reside at the home of Mrs. Treisch, and that it was not their usual place of abode; that they had never been served; that plaintiff had no valid claim against them or either of them; that they had a good and sufficient defense to such action;. and that plaintiff was indebted to them; and J. C. Thoms alleging that he had no notice

of the commencement of said action until he ascertained the same from a clipping from a paper. These affidavits were met by affidavits filed on behalf of respondent. The motion to set aside the judgment was denied. From the order of denial, this appeal is taken.

Appellants urge that the service attempted to be made was insufficient to give the court jurisdiction over them. For reasons hereinafter stated, we deem it unnecessary to pass upon this question.

In the motion wherein appellants assumed to appear specially, they did not ask to have the service of summons and complaint quashed, nor did they confine themselves to a prayer for the setting aside of the default and judgment, but they prayed that the judgment be set aside and that the action be dismissed, and that they have judgment for costs and disbursements and such other relief as to the court might seem just, and they based their motion upon the records, files, and certain affidavits, some of the latter setting forth facts going to the merits of the controversy. We think their appearance must be construed to be general. In the case

of Teater v. King, 35 Wash. 142, 76 Pac. 688, this court said: "The appearance of appellant was in form special, for the purpose of objecting to the court's jurisdiction over his person, but in the body of his motion he invoked the jurisdiction of the court below on the merits, when he asked for a dismissal." In the case of Burdette v. Corgan, 26 Kan. 102, the Supreme Court of Kansas, speaking through Justice Brewer, said this: 66* * We remark that this appearance by the motion, though called special, was in fact a general appearance, and by it this defendant appeared so far as she could appear. The motion challenged the judgment, not merely on jurisdictional, but also on nonjurisdictional grounds, and, whenever such a motion is made, the appearance is general, no matter what the parties may call it in their motion." If we should hold the service in this case to be insufficient it would necessitate the remanding of the case with instructions to the tr trial court to treat the appellants as having waived service and as being before the court. French v. Ajax Oil & Development Co. (decided Nov. 9, 1906) 87 Pac. 359. They would then be required to interpose whatever defense they desired. But the respondent states in this court that he has been willing at all times that appellants should come into the case and make their defense upon the merits, and that he is at this time willing that they should be permitted so to do. In view of this offer on his part, we remand the case to the superior court with directions to set aside the judgment if the appellants interpose a meritorious answer within 20 days from the date of the filing of the remittitur, and for such further proceedings as may be had in the ordinary course. If no such au

swer is filed within said time, the judgment shall stand as affirmed. Costs to abide the final result.

DUNBAR, CROW, and HADLEY, JJ., concur. MOUNT, C. J., and RUDKIN, J.; not sitting.

(14 Wash. 698)

THORP et al. v. THOMS et ux. (Supreme Court of Washington. Nov. 14, 1906.)

Appeal from Superior Court, King County: Geo. E. Morris, Judge.

Action by F. S. Thorp and Everett Smith, for themselves and associates, as the WashIngton Antisaloon League, against J. C. Thoms and another. From a judgment denying a motion to set aside default, defendants appeal. Remanded.

George E. Knapp and John B. Shorett, for appellants. F. S. Thorp and Everett Smith, pro se.

In an action against a carrier for conversion of household goods in refusing to deliver them until payment of certain charges claimed to be due for their carriage, recovery cannot be had for the outraging of feelings.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 100.]

2. CARRIERS-REFUSAL TO DELIVER GOODSACTION FOR CONVERSION-TENDER.

Where, on a dispute between a carrier and the owner of certain goods as to the amount due for their carriage, the carrier withheld them until the amount claimed by him to be due should be paid, a tender was not necessary before bringing suit for their conversion, where there was no refusal by the owner to pay what he deemed a proper amount.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 367-369.]

3. TRIAL-INSTRUCTIONS APPLICABILITY TO

EVIDENCE.

In an action against a carrier for conversion of goods, an instruction authorizing the recovery of damages for injuries concerning which there was no evidence, is erroneous.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 596-599.]

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by B. E. Gates against Daniel Bekins, doing business as the Bekins Moving & Storage Company. From a judgment for plaintiff, defendant appeals Reversed and remanded.

Craven & Totten, for appellant. Sweeney & Steiner, for respondent.

DUNBAR, J. This was an action for the conversion of household goods of the alleged value of $121 brought by respondent against appellant; the appellant defending upon the ground that the alleged conversion was simply the rightful detention of the goods under a lien belonging to him by virtue of an express contract, and also by virtue of the fact that he was a common carrier, to secure the payment of $20.75 due for carriage charges on the goods and other goods carried at the same time. Appellant was engaged in the business of moving and storing goods in the city of Seattle. The complaint, among other things, alleges that plaintiff has demanded of defendant that he deliver the remainder of said household goods as per agreement, which defendant has refused and still refuses to do; that the plaintiff is ready, and at all times has been ready to pay any and all bills presented to him for such services as per his contract with the defendant, and has so informed the defendant; that, in addition to the value of the household goods appropriated by the defendant to his own use and benefit, plaintiff has been damaged in his business in the sum of $1,000; and that his feelings have been outraged. We may say here that this is a straight business transaction in which the outraging of feelings necessarily cannot be involved. The case was tried by a jury, and the verdict was rendered in fafor of the plaintiff, the respondent here, for $621. $621. Appellant's motion for a new trial was denied upon condition that the respondent remit $270.75 from the judgment which said reduction was accepted by respondent. Judgment was then rendered for $330.25, from which judgment this appeal is taken.

The first contention in this case is that the court erred in instructing the jury as follows: "If, on the contrary, you find that the agreement was that he should hold a portion of the goods until the charges for the carriage on them should have been paid, then the plaintiff would not be entitled to recover unless you find that the defendant demanded excessive charges-more than he was entitled to under the contract. I instruct you in that respect that if a common carrier of goods demands a sum in excess of the amount due him for freight charges, the assignee or owner of the goods may maintain an action of this kind against him without making a tender of any part of the amount" -the contention of the appellant being that it was necessary as a prerequisite to the commencing of this action, that the respondent should have tendered the amount due for the carriage of the goods. Upon this subject of tender there is a conflict of authority; some courts holding that it is necessary for the consignee to tender the amount which he considers right for the carriage of the goods before he can legally commence an action for

recovery, others, that a tender is not necessary, especially where there is a controversy as to the amount of freight which is due the carrier, and where the carrier has declined to take less than the charges which he has presented, or where by his actions and claims it is ma ifest that it, would be useless for the consignee to tender any amount less than that which was claimed by the carrier. This court held, in Moran Bros. Co. v. Northern Pacific R. R. Co., 19 Wash. 266, 53 Pac. 49, 1101, that: "Where the carrier demands a sum in excess of the sum due for freight charges, the consignee need not tender any sum before bringing suit." This decision is criticised by the appellant, for the reason that the statement of law announced in that case was not necessary to the decision on the issues involved, and there is some merit in this criticism. To sustain that doctrine we cited Adams v. Clark, 9 Cush. (Mass.) 215, 57 Am. Dec. 41; Isham v. Greenham, 1 Handy (Ohio) 357. It is also contended by the appellant that Adams v. Clark does not sustain the law as announced by the court. But an examination of that case convinces us that while there were some other features in the case which were incidentally passed upon by the court, the law on this question was announced to the effect that tender is not necessary. The court, in passing upon the question at issue said: "If the defendants illegally withheld the goods from the plaintiff, he might have brought an action of assumpsit against them, as well as this action of trover. And, in that action, all that it would have been necessary for him to aver and prove would have been his readiness to pay the freight, upon delivery of the goods. * * * And we are of opinion that all which it was necessary for the plaintiff to prove, in order to maintain this action, was his readiness to pay freight on the goods, upon their being delivered to him, and the defendants' refusal to deliver them unless something more should be first paid." In Isham v. Greenham, 1 Handy (Ohio) 358, it was held that the duties of the carrier and consignee are correlative; the one to deliver, and the other to pay the freight being mutual acts. In that case the court said: "On general principles, whenever the act of one party to whom another is bound to tender money, services, or goods, indicates clearly that the tender, if made, would not be accepted, the other party is excused from the technical performance of his agreement. The law never requires a vain thing to be done. * It would

have been useless, then, for the plaintiff to have tendered the amount due as freight when he had already been told that it would not be accepted. The claim asserted by the defendant was illegal, and having refused to deliver the cargo, unless that claim was paid, the plaintiff had nothing to do but to regard the carrier's acts as unlawful, and hold him responsible for the value of the property in

tort." The case at bar presents this identical state of facts. A controversy arose between the appellant and the respondent as to the amount which was due the appellant under the contract for the carriage of the goods. There was no refusal on the part of the respondent to pay what he deemed was the proper amount for the service rendered. A greater amount was claimed by the appellant, and the goods were withheld from the possession of the respondent until that greater amount was paid, and it would have been useless, as shown by the undisputed testimony in this case, for the respondent to have tendered any less amount than that which was claimed by the appellant, so that the respondent had a right to bring this action and submit this question, together with the other disputed questions in the case to the court. In Long v. Mobile & Montgomery Railroad Co., 51 Ala. 512, a case cited by the appellant, it seems to us the proper rule is laid down, namely, that the payment of the freight and the delivery of the goods are concomitant or concurrent acts; and, if the consignee is ready and willing to pay the freight due, on having the goods delivered to him, and the carrier refuses to deliver them unless he will pay more than is due, the consignee may maintain detinue for the goods, or trover for their conversion, without making a formal tender, or paying the money into court. The amount of freight actually due to be adjusted by the court. The court in this case however instructed the jury as follows: "If you find in addition that the defendant has been otherwise damaged by reason of the taking and detention of these goods directly, then you should award him that amount. Your verdict for the goods alleged to have been taken must not exceed $121 and for the remainder must not exceed $1,000; in arriving at a verdict you are to find a verdict in one lump sum."

The giving of this instruction was error, for the reason that there was not a scintilla of testimony offered showing any damage whatever to the business of the respondent, nor was there any attempt on the part of the respondent to make any other proof whatever than the value of the goods detained by the appellant. And that it was prejudicial is plainly shown by the verdict of the jury in returning a larger verdict than the alleged value of the goods detained. On account of this error, it becomes necessary to reverse this cause for the reason that this court cannot determine what conclusion the jury came to concerning the value of the goods detained, as the proof as to their value was conflicting, and it is not ascertainable whether the jury, if it had been proper to exclude all damages excepting the value of the goods detained would have found that the goods were worth the sum of $121.

For this reason, the judgment will have to be reversed, and the cause remanded, with instructions to grant a new trial.

MOUNT, C. J., and CROW, RUDKIN, FULLERTON, HADLEY, and ROOT, JJ.,

concur.

(44 Wash. 464)

STATE v. ROURKE. (Supreme Court of Washington. Nov. 21, 1906.) CRIMINAL LAW APPEAL RECORD- QUESTION REVIEWABLE.

On appeal from a conviction, questions concerning the instructions given will not be considered where it does not appear from the transcript that the instructions contained therein were the only ones given, or that any exceptions were taken to any of them.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2940-2943.]

Appeal from Superior Court, King County; John B. Yakey, Judge.

Action by W. Moeller against Matt H. Gormley as treasurer of the county of King. From a judgment for plaintiff, defendant appeals. Affirmed.

Kenneth Mackintosh and R. W. Prigmore, for appellant. E. H. Guie, for respondent.

ROOT, J. In 1899 plaintiff leased from the state of Washington for a period of 30 years certain Seattle tide lands. Thereafter the assessor of King county caused the leasehold interest of respondent in said tide lands to be assessed as personal property, and the tax was accordingly levied against such lease

James Rourke was convicted of cattle stealing, and he appeals. Dismissed.

Sayre & Brinker, for appellant. C. D. Sutton and Thomas Stevenson, for respondent.

PER CURIAM. This appeal is taken from a judgment of conviction for the crime of cattle stealing. Judgment was entered on the 17th day of February, 1906. Notice of appeal was served and filed on March 20, 1906. No statement of facts has ever been served or filed, but long after the time had expired for filing a statement of facts, an effort was made to obtain an order extending the time for filing such statement, but the order was denied.

The only errors assigned are directed to the instructions which were given by the court to the jury upon the trial. The transcript contains what purports to be instructions given upon the trial. But it does not appear that these were the only instructions given by the court, or that any exceptions were taken to any of them. Under such circumstances, we cannot consider the questions pre

sented.

The appeal must, therefore, be dismissed.

(41 Wash. 465)

MOELLER v. GORMLEY, Treasurer. (Supreme Court of Washington. Nov. 21, 1906.)

1. TAXATION-EXEMPTIONS-STATE PROPERTY -LESSEE OF STATE.

When a lease is given by the state to an individual or private corporation, the lessee's rights and privileges are subject to taxation, and are not exempt under Const. art. 7, § 2, which exempts from taxation all property of the state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 304, 351, 353.]

2. SAME-NATURE OF PROPERTY-REAL OR PER

SONAL.

Under Ballinger's Ann. Codes & St. § 1656 (Pierce's Code, § 8592) providing that real property for the purpose of taxation shall be construed to include the land itself "and all rights and privileges thereto belonging," a leasehold should be assessed as real estate and not as personal property.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 146.]

tax rolls of the county for the year 1904. This action was instituted for the purpose of enjoining and restraining appellant from collecting said taxes. A demurrer to the complaint was overruled by the court. Appellant electing to stand upon his demurrer, and refusing to plead further, judgment was entered dismissing the action. From this judgment the present appeal is taken.

Two questions are presented. (1) Is such leasehold interest taxable? (2) If taxable, should it be assessed as realty or personal property? Under a Constitution such as ours it is the general rule that all property other than public is assessable, and before any exemption can be allowed there must be found unequivocal authority therefor. But the converse of this rule is applicable to public property. Before any property, belonging to the state, can be subjected to taxation, clear and unmistakable authority therefor must be made to appear. It is contended by respondent herein that to impose a tax upon this leasehold, while nominally asserting taxation against the property of an individual, would practically and actually amount to the levying and enforcement of a tax against the state; that as tide lands of this character are leased for a term of years to the highest bidder, it must be presumed that the state obtains the full rental value for the use of these lands; that this being true, it naturally follows that the amount of rental obtainable from any person willing to pay the full rental value of said lands would be increased or decreased to the extent of the tax imposed accordingly as he should be, or not be, required to make payment thereof; that the assessment falls upon the right to use the property; that is a right which is vested in the state, but which the state during a given period permits the individual to exercise; that in its last analysis such taxation is upon the property of the state and consequently not permissible under section 2 of art. 7 of the state Constitution, which reads as follows: "That the property of the United States and of the state, counties and school districts and other municipal corporations, shall be exempt from taxation." This argument is plausible, and

the proposition advanced appears sound as a theory. But we think it cannot, under the general scheme and purpose of taxation, successfully bear the test of practical application. Doubtless a prospective lessee would bid more for a lease if he knew that his leasehold interest would not be taxed. But the same may be said of a prospective purchaser of state lands. He would pay more for the fee if he knew it would remain exempt from taxation. The difference between the two is in degree only, and not in character. But it is the policy of our commonwealth that the fee in any real estate sold by the state shall thenceforth be assessable. As soon as title passes from the state. the land becomes private, and no longer public, property. When a lease is given by the state to an individual or private corporation, the lessee thereby obtains for his or its private use certain rights and privileges in, to and upon such real estate. These rights and privileges constitute private property over which the lessee has, and may exercise, absolute dominion and ownership within the limitations of his or its lease. Why as such property it should not be subject to the general rule of taxation we conceive of no reason.

It is urged, however, that such a leasehold interest, if taxable at all, should be assessed as real estate instead of personal property. This was evidently the view entertained by the trial court, and we think it correct. The revenue statute, defining real estate for the purpose of taxation, is as follows: "Real property for the purposes of taxation shall be construed to include the land itself, whether laid out in town lots or otherwise, and all buildings, structures, and improvements, or other fixtures of whatsoever kind, thereon, and all rights and privileges thereto belonging, or in anywise appertaining." Section 1656, Ballinger's Ann. Codes & St., section 8592, Pierce's Code. This court, in line with others, has held that a leasehold for a term of years was an "interest in lands." Reilley v. Anderson, 33 Wash. 58. 73 Pac. 799; Chicago Attachment Co. v. Davis, etc., Co., 142 Ill. 171, 31 N. E. 438, 15 L. R. A. 754: Sanford v. Johnson, 24 Minn. 172: McKee v. Howe, 17 Colo. 538, 31 Pac. 115. It would seem that the expression in the statute "all rights and privileges thereto belonging" would clearly cover a leasehold interest such as we have here. Appellant points out that the present revenue law is inadequate to enforce the collection of the taxes levied. especially those assessed during the last three or five years of the lease, if the leasehold be taxed as real estate. We are impressed with the force of this suggestion, and doubt not that the Legislature will give the matter appropriate attention if it be called to its attention. This court, however, must pass upon the statute as it is found, without importing, by way of construction, elements now wanting.

The judgment of the trial court is affirmed.

In an action against two persons as partners on a note executed by one of them in the firm name, wherein the other claimed that the partner executing the note had no authority to do so, there was no error in refusing to admit in evidence books of account kept by the partnership at the time of the giving of the note, for the purpose of showing that the note did not appear thereon as a liability of the firm. [Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, § 423.]

3. SAME--ACTION BETWEEN PARTNERS-CONTRIBUTION.

Where. in an action against two partners on a firm note, only one was served with process and judgment was entered against him, after payment of the note by him, he had a right of action against the other to compel contribution.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, §§ 155, 171.] Fullerton, J., dissenting.

Appeal from Superior Court, King County; John B. Yakey, Judge.

Action by the Moran the Moran Bros. Company against Charles Watson. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Jerold Landon Finch, for appellant. James Kiefer, for respondent.

CROW, J. The plaintiff, the Moran Bros. Company, a corporation, instituted this action on December 7, 1904, against the defendants Charles Watson and Frank IIanford, copartners as Watson, IIanford & Co., upon a promissory note in words and figures as follows: "$250.00. Seattle, Washingtc. January 16th, 1901. If Moran Bros. Company, a corporation, shall bid for and obtain from the United States government a contract for the construction of one of the battleships, construction of which is now under consideration of the government, I promise, for value received, to pay to the order of said corporation, at the bauking house of Puget Sound National Bank, in the city of Seattle, on the day upon which said battleship shall be launched into the waters of Puget Sound, the sum of two hundred and fifty dollars in gold coin of the United States, of the present standard of weight and fineness, with in