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person at the end of each month the amount in their hands. Frederick & Velson theredue for boarding such other's horses, was within

upon filed a complaint in interpleader under section 126, and that the mere delivery of the same to such third person was not an assign

the statutes, and, upon paying into court the ment of the funds in the hands of the person amount they owed Madsen, were released · to whom addressed, and that he would not be from liability. The case was then contested liable thereon until it was accepted in writing. as to whether the trustee in bankruptcy or

[Ed. Yote.-.For cases in point, see Cent. Dig. vol. 4, Assignments, $ 121.]

the Spokane Grain Company was entitled to

the fund. The trial court held that the forAppeal from Superior Court, King County ; mer was entitled to the money. From a Jeremiah Neterer. Judge.

judgment to that effect, this appeal is proseComplaint in interpleader under the stat

cuted by the Spokane Grain Company. utes by Frederick & Nelson against the

The appellant contends that the order set Spokane Grain Company and E. B. JcGill, out above was not a draft or bill of extrustee in hankruptcy of the estate of James change the acceptance of which is required Madsen, a bankrupt. On payment into court to be in writing, but was an oriler drawn on of the amount in controversy, Frederick & a particular fund, covered the amount of the Nelson were released from liability, and fund drawn upon, and amounted to an equifrom a judgment that E. B. McGill, trustee, table assignment in praesenti of the fund, was entitled to the same, the Spokane Grain notwithstanding it had not been accepted by Company appeals. Affirmed.

the drawee: and some authorities are cited! James McNeny, for appellant. Samuel

which apparently sustain this position. But Morrison, for respondent.

our statute seems to place the question be

yond controversy, for it provides : "A bill MOUNT. J. Prior to August 10, 1905; one of exchange is an unconditional order in James Madsen was conducting a boarding writing addressed by one person to another, stable for liorses in the city of Seattle. He signed by the person giving it, requiring the had an agreement with Frederick & Nelson person to whom it is addressed to pay on to feed for them about 24 head of horses, demand or at a fixed or determinable future at the price of $18 per head per month. It time a sum certain in money to order or to was customary for Frederick & Nelson to pay bearer. A bill of itself does not operate as their bill for each month about the 5th of the an assignment of the 'funds in the hands of sucreeiling month. On or about August 10, the drawee available for the payment there1903, the Spokane Grain Company agreed to of, and the drawee is not liable on the bill furnish Jadsen with bay and grain for an unless and until he accepts the same." Laws indefinite time. Thereupon Madsen execut- i 1899. pp. 362, 363, c. 110, $$ 126, 127. These ed and delivered to the Spokane Grain Com sections are plain, and it follows therefrom pany the following order: “August 10, 1905. that the mere delivery of the order by MadFrederick & Nelson, City-Gentlemen: Please sen to the Spokane Grain Company did not pay to Spokane Grain Company at the end operate as an assignment of the funds in of each month the amount due me for board the hands of Frederick & Nelson, nor would ing your horses. Their receipt shall serve Frederick & Nelson be liable on the order unas a receipt from me. Pay them what will til it was accepted by them in writing. Nelbe due me for the month of August. Al son v. Velson Bennett Co., 31 Wash. 116, 17 so pay them all moneys that will be due me Pac. 719: Wadhams v. Portland, etc., R. R. each successive month until otherwise noti Co., 37 Wash. SO, 79 Pac. 597. fied by Spokane Grain Company. Yours very This being true, it follows that the aptruly. Club Stables, by James Madsen, Pro pellant had no title or claim upon the fund prietor.” Thereafter, up to August 29, 1905, after it was garnisheed or paid into court the Spokane Grain Company sold and de by Frederick & Selson. The judgment of livered to Madsen hay and grain to the the lower court must therefore be affirmed. value of $451.50. During the month of August, 1905, Freilerick & Nelson's bill with HADLEY.

J., and FULLERTOX, Madsen amounted to $110.90. The existence CROW, RUDKIX, and DUXBAR, JJ., conof the abore-mentioned order was not known cur. to Frederick & Nelson, and was not presented to them for acceptance and payment until

(17 Wash. 107) August 31, 1905, at which time payment was WRIGHT v. COMPUTING SCALE CO. et al. refused for the reason that the amount due

Supreme Court of Washington. Sept. 6, 1907.) Madsen from Frederick & Yelson had been

1. CONTRACTS – SALES - CONSTRUCTION previously garnisheed in an action on a prom CITY ORDIYASCE AS PART OF CONTRACT. issory note for $31.5.00, wherein E. B. McGill Where defendants sold a computing scale to was plaintiff and Madsen was defendant.

plaintiff under a warranty, a city ordinance at

the time making it unlawful for any person to Madsen was afterwards, on September 6,

11se any scale to weigh articles for sale, without 1990., declared a bankrupt, and E. B. McGill first having procured a certificate from the city was appointed trustee in bankruptcy. There inspector of weights and measures that the scale

had been inspected and found correct, constituie after the Spokane Grain Company notified

ed il part of the contract. Frederick & Velson not to pay to McGill as [Ed. Yote.-.For cases in point, sce Cent. Dis. trustee in bankruptcy the money garnisheed | vol. 11, Contracts, $ 750.]

2. EVIDENCE--PAROL-VARYING WRITTEN Cox- , bull, 103 S. Howard, $15, as cash payment TRACT.

on one 63-scale, balance of $70 to be paid at Defendant sold plaintiff a computing scale under a warranty that it would weigh correctly,

the rate of $7 per month, without interest, and plaintiff sued to recover damages for losses or a discount of ten per cent. of balance sustained by the underweight of the scales on will be allowed if balance is paid within sales made by him. An ordinance of the city

thirty days of date hereof. Guaranty: The prohibited the use of scales until inspected by the city inspector of weights and measures and Computing Scale Co., of Dayton, O., manufound correct. Held that, as such ordinance facturers of the Moneyweight Scale, together constituted a part of the contract of sale, it was

with the Moneyweight Scale Co., of Chicago, adinissible on the part of defendant to show a

do hereby guarantee said computing scale to non-compliance with the provisions thereof, and was not objectionable as an attempt to vary or weigh correctly any article capable of becontradict the terms of the written contract. ing weighed on it, and should the scale get

[Ed. Note.-For cases in point, see Cent. Dig. out of order at any time within two year's vol. 20, Evidence, § 1887.)

from the date of shipment, with ordinary use 3. SALES-RESCISSIOX.

(not dropped or broken), we will repair the Where plaintiff purchased a computing scale from defendants under a written warranty that

same gratis, the purchaser paying the freight it would weigh correctly, it was plaintiff's duty, or express charges to and from the factory. on receiving the scale, to have the same in

Money Weight Scale Company, by T. Delaspected by the city inspector of weights and measures as required by a city ordinance of the

field, Salesman.” “(3) That on the 2d day place where the contract was made, and, if of December, 1903, the said scale was defound defective, to rescind the contract and re livered to plaintiff by the defendants, and cover his money before any loss accrued to him

the plaintiff paid the defendants on the purthrough the sale of articles improperly weighed.

chase price thereof the sum of $13. (4) That [Ed. Note.-.For cases in point, see Cent. Dig. vol. 43, Sales, $ 1227.]

the plaintiff bought said scale for the special 4. SALES-BREACH OF WARRANTY-DAMAGES purpose of using it in his place of business, NONCONTEMPLATED LOSSES.

to wit, a meat market situated in the city Where plaintiff purchased a computing of Spokane, Wash., which purpose was scale from defendants under a warranty that it would weigh correctly, losses sustained by plain

known to the defendants, and plaintiff began tiff because of underweights of such scale while to use it immediately upon the delivery and being used by plaintiff for four months before continued to use it down to the 24th day of he discovered that it underweighed did not naturally arise from a breach of the warranty,

March, 1904, and during the time between and were not within the contemplation of the the said 2nd day of December, 1903, and the parties when making the contract, so as to cu 24th day of March, 1904, caused to be weighthorize a recovery thereof.

ed upon said scale, 2,768 sales of beef, 852 Appeal from Superior Court, Spokane sales of pork, 401 sales of mutton, 343 sales County; Mitchell Gilliam, Judge.

of veal, 342 sales of sausage, 75 sales of Action by E. F. Wright against the Com bacon, 153 sales of ham, 205 sales of poulputing Scale Company and another. From a try, 47 sales of weinnerwurst, 92 sales of livjudgment for plaintiff, defendants appeal. er, 45 sales of headcheese, 145 sales of fish, Reversed.

and 158 sales of lard, relying at all times J. W. Graves and A. G. Gray, for appel

during said period on the guaranty of the lants. Willis H. Merriam, for respondent.

defendants that said scales would weigh cor

rectly. (5) That said scale was, in fact, deMOUNT, J. The respondent brought this

fective at the time it was delivered to plainaction in the court below to recover dam

tiff on account of being improperly construct

ed and remained defective and did not at ages for an alleged breach of warranty of a set of scales for weighing meats. The cause

any time between the dates of December 2, was tried to the court without a jury, and

1903, and the 24th day of March, 1904, weigh findings and a judgment were entered for

correctly any article that was weighed upon the plaintiff as prayed for. Defendants ap

it, and, in fact, on account of such defect peal.

and improper construction, the said scale Upon the trial the court found the facts weighed each and every article weighed upsubstantially in accordance with the allega

on it one-half pound less than its true weight, tions of the complaint, the material findings resulting in a loss to the plaintiff on account being as follows: “(2) That on the 2d day of such defects on every article weighed the of December, 1903, the plaintiff purchased

value of a half a pound of the article weighfrom the defendants, through their author

ed. (6) That on the 24th day of March, ized agent at the city of Spokane, Wash., 1904, the aforesaid scale was inspected by the one computing scale at the agreed price of inspector of weights and measures of the $85; that at the time of said purchase the city of Spokane, Wash., and said inspector defendants, as a part of the contract of said found that the said scale was defective and purchase, guaranteed the plaintiff in writing weighed every article that had been weighthat said scale would weigh correctly any ed upon it one-half pound less than its true article capable of being weighed upon it, weight, and he, therefore, condemned the which contract of guaranty is shown in said scale, and the plaintiff was prohibited plaintiff's Exhibit No. E.” This exhibit is from using said scale by said officer. (7) as follows: "Received from Robert Turn That the plaintiff had no knowledge that said

scale was defective or was not weighing cor 32 Wash. 36, 72 Pac. 46. It is uni easonable rectly until the 21th day of March, 1901, to suppose that the contract of warranty when it was inspected, and that he imme above set out contemplated that the appellant diately thereafter notified said defendants should be liable for mistakes and underof said defects, and the defendants remor weights for a period of four months and for ed the said scale from plaintiff's place of busi more than five thousand sales. Such damness, but failed and refused to pay to plain ages did not arise naturally, nor were they tiff the $13 plaintiff had paid to them on in contemplation of the parties when the account of the purchase price of said scale, contract was made. But, conceding that or to pay plaintiff the amount of the losses there was a breach of the warranty and that he sustained on account of said defects in said respondent was entitled to some damages, scale.” The court then found the prices at “the buyer owes an active duty to exercise which the beef, etc., were sold, and con ordinary care in order to render the damages cluded that plaintiff should recover $13 paid | arising from the breach of warranty as light for the scales and $338 losses sustained by as possible. He cannot recover for expenses the underweight of the scales. In the an or losses unnecessarily incurred, nor for any swer the defendants pleaded as an affirma damages of which his own negligence was tire defense a city ordinance of the city of the proximate cause. If by the exercise of Spokane in force at the time the contract ordinary care the damages might have been was made, making it unlawful for any per- prevented, the measure of the buyer's recovson to use any weight or scale used in weigh ery is the reasonable cost and expense of ing articles for sale without first having pro exercising such care, whether he exercised cured a certificate from the city inspector of it or not." 30 Am. & Eng. Enc. of Law (20 weights and measures that such scales had Ed.) 223. Ordinary care would have disbeen inspected and found correct, that the covered the error in these scales before they contract of warranty was made with refer were used at all. A mere compliance with ence to said ordinance, and that plaintiff fail the city ordinance would have discovered the ed and neglected to have said scale inspected. error. In either view of the case, upon the This defense was stricken by the court up facts found, the plaintiff was entitled to reon motion of the plaintiff.

cover back only the money he had paid on It was error, without doubt, to strike this the purchase price. defense. The law of the place where a con

The judgment is therefore reversed, and tract is made is as much a part of the con

the cause remanded, with instructions to tract as though it were expressed therein. 9 enter a judgment in favor of the respondent Cyc. 582, and cases cited; Holbrook v. Ives, for $43. The appellants are allowed their 41 Ohio St. 516, 9 N. E. 228. There was

costs of this appeal. nothing in this defense which in any way tended to vary or contradict the terms of HADLEY, C. J., and Ckow, FULLERthe written contract. The warranty was: TON, and DUNBAR, JJ., concur. RUDDefendants "do hereby guarantee said com KIN, J., concurs on the second ground stat. puting scale to weigh correctly.” This cer

ed in the opinion. tainly did not imply that the scale had been tested and adjusted by the city inspector and his certificate issued to that effect. It was

(47 Wash, 88) the duty of the plaintiff, under the law, to PORTLAND & SEATTLE RY. CO. v. LADD have an inspection made by that officer be

et al. fore the plaintiff was authorized to use the

(Supreme Court of Washington. Sept. 6, 1907.) scale. If he had done so, the scale would 1. APPEAL-CONTINUANCE-DENIAL-REVIEW. have been condemned, and he could have

The denial of an application for a continu

ance will not be reviewed on appeal, except for rescinded the sale and recovered his money abuse of discretion. back before any loss had accrued to him. [Ed. Note.-For cases in point, see Cent. Dig. This was clearly his duty and his remedy.

vol. 3, Appeal and Error, $ 3837.) Furthermore, the rule in construing con

2. CONTINUANCE-ABSENCE OF PARTIES. tracts of this kind is: “Where two parties

Where, in condemnation proceedings, the

actual owners of an undivided two-thirds interhave made a contract which one of them has est in the property sought to be condemned were broken, the damages which the other party present, and there was no showing that defendought to receive in respect of such breach of

ant's counsel were dependent on L.. who, with

his wife, owned the other one-third, or that they contract should be such as may fairly and

had relied on him to furnish evidence or that he reasonably be considered either arising nat was a material witness, or that other witnesses urally ; i. e., according to the usual course of were not at hand, the court's refusal of a con

tinuance because of Li's absence was not an things, from such breach of contract itself, abuse of discretion. or such as may reasonably be supposed to [Ed. Note.-.For cases in point, see Cent. Dig. have been in contemplation of both parties vol. 10, Continuance, $ 41.] at the time they made the contract, as the 3. EVIDENCE – DOCUMENTARY EVIDENCE probable result of the breach of it." 30 MAPS. Am. & Eng. Enc. of Law ed Ed.) p. 209);

Where, in a proceeding to condemn land for Puget Sound Iron, etc., Works v. Clemmons, i the evidence as to the exact location of the

a railroad right of way, there was no dispute in

railroad line on the ground or of the amount of ; legal title of the land sought to be approand sought to be appropriated as staked, cer- | priated stood in the name of Charles E. Ladd tain maps, shown to be an accurate description of the location of the road as laid out on the

ani wife, but the equitable title was in land, were admissible as illustrative of the testi Ladd and wife and the Columbia Contract mony of the witnesses, though not made by the Company, a corporation, in the proportion of person who made the surveys on the ground.

one-third in Ladd and wife and two-thirds [Ed. Note.-.For cases in point, see Cent. Dig.

in the Columbia Contract Company. On vol. 20. Evidence, $$ 1300, 1501.]

June 8, 1906, a preliminary order was made 4. APPEAL-ADMISSION OF EVIDENCE-PREJU

in condemnation, adjudging the land sought DICE.

Where, in proceedings to condemn land for by the railroad company a necessary public a railroad right of way, there was no dispute use, and ordering a jury to assess the clamas to the location of the line cr the amount of land sought to be taken, defendants were not

ages in favor of the owners. On June 21, prejudiced by any error in the admission of

19906, notice was served on appellants' attorcertain maps of the location which did not co neys that a jury would be summoned for the incide in all particulars.

12th day of July, 1906, to determine the [Ed. Note.-For cases in noint, see Cent. Dig. question of damages, and the jury was acvol. 3, Appeal and Error, $ 11:31

cordingly summoned for that day. On July 5. LIS PENDENS - CONDENSATION PROCEED

12. 1.906, at the time fixed for the trial, a INGS.

Ballinger's Ann. Codes & St. $ 4887, au motion was filed by attorneys for Mr. Ladd, thorizing the filing of a lis pendens in actions asking for a continuance of the trial upon affecting the title to real property, applies to

the ground that Mr. Ladd was absent in proceedings to condemn land for a railroad right of way.

some eastern state and was not advised of the 6. SAJE-PIRCILASERS WITII XOTICE.

time when the trial was to take place and Ballinger's Ann. Codes & Sr. $.3637. pro counsel could not locate him. The atticlavit vides that any corporation authorized to ap

in support of the motion showed diligence propriate land may present a petition to the superior court of the county where the land is

of counsel in trying to locate Mr. Ladd: but located. describing the land and setting forth there was no showing that counsel were dethe claim of every person interested in the land, pendent upon Mr. Ladd, or had relied upon as ascertained from the public records, and sec

him, to furnish evidence or the facts in the tion 5638 requires that notice shall be served on every person named in the petition as inter case, or that Mr. Ladd was a material witested in the land. Jield, that no notice is re ness, or that other witnesses were not at quired to be served on subsequent purchasers

hand to fully establish all the facts upon and incumbrancers, but subsequent purchasers and incumbrancers are charged with notice

which the appellants relied. The granting or thereof.

refusing of a continuance of a trial rests 7. EMINEXT DOMAIN_COMPENSATION-MEAS- | largely in the discretion of the trial court, URE-USE OF PROPERTY.

Where, in a proceeding to condemn land for and will only he reviewed for abuse. Malona railroad right of way, defendants claimed in

er v. Stetson & Post Mill Co. (Wash.) 90 Pac. jury to a quarry, and it appeared that the rock 1016. We are satisfied the court did not could not be quarried without injury to lands abuse its discretion in this case, because of which defendants did not own, but which be

the failure to show the facts above stated, longed to the railroad company, the court properly charged that, if the rock could only be

and because the actual owners of an unprofitably quarried by injury to the land owned divided two-thirds interest in the property by the railroad company, the jury should dis- I were present. In fact, the pleadings show regard all evidence of the value of the rock as

that the whole property was purchased by a quarry.

the Ladds and the Columbia Contract ComRudkin, J., dissenting in part.

pany for use as a stone quarry, and that Appeal from Superior Court, Skamania the same was to be operated by the appelCounty; W. W. McCredie, Judge.

lant Columbia Contract Company, which Condemnation proceedings by the Portland company was present at the trial by its of& Seattle Railway Company against Charles

ficers. There was therefore no error in E. Ladd and others. From a judgment as

denying the motion for a continuance. sessing damages to which defendants were

Appellants next contend that the court entitled, they appeal. Affirmed.

erred in receiving in evidence certain maps,

marked Exhibits A, B, D, and F, and in Teal & Minor and W. A. Johnson, for ap

denying the motion to exclude these maps pellants. James B. Kerr and George T.

after they had been received in evidence. Reid, for respondent.

The points made are that the maps were

not prepared by the engineers who made the MOUNT, J. This appeal is prosecuted surveys upon the ground, and also that the from a judgment based upon an award for maps did not agree with themselves. There damages in condemnation. The errors as seems to have been no dispute in the evi. signed will be considered and decided in the dence as to the exact location of the railorder assigned in appellants' brief. The road line upon the ground, or of the amount facts necessary to an understaniling of the of land sought to be appropriated, which points made will be stated as each point is was fifty feet on each side of the center line considered.

of the railway as stakes upon the ground. It is first arzuert that the court erred in : Tlie maps were not offered or received ils denying a motiou for a continuance. The evidence in themselves of the location of the

line, but only as illustrative of the testi nate thereto." The trial court was evidentmony of the witnesses testifying in relation ly of the opinion that section 4857 of the thereto, and therefore were admissible, even practice act (Ballinger's Ann. Codes & St.), though they were not made by the persons relating to the manner of commencing acwho made the surveys upon the ground, tions, applies to cases of this character. It Where they were shown to be accurate. 17 is argued by appellants that proceedings in Cyc. 112. The witnesses who testified in condemnation are special proceedings, and regard to these maps all testified that the therefore that section 4887, which relates in:p's were accurate, and showed the location to the filing of a lis rendens in actious affectof the line as laid out upon the land. It is ing the title to real property, does not apply true these persons neither surveyed the

to this class of cases. We are of the opinground nor made the maps, but they testified ion that the section does apply to cases of that they sealed the maps and compared

this kind. While it is true that proceedings them with the government and other field in condemnation are special in this state and notes, and found them to be accurate. This are therefore governed by all the requirewas sufficient to entitle the maps to go in

ments stated in the statute, yet, where no evidence as a part of the testimony of the provision is made for the protection of parwitnesses. It is true one of the maps offered

ties to such proceedings, the rules of common did not coincide with the others in all par

practice must necessarily apply. The statticulars, but this variance was explained so

utes relating to the exercise of the right of as not to mislead any one. But, if all the eminent domain provide, at section 5637, maps were improperly in evidence, it is dit Ballinger's Ann. Codes & St., that any corficult to see any prejudicial error, because

poration authorized to appropriate land may there was no dispute as to the location of

present to the superior court of the county the railway line or the amount of land

where the land is located a petition desought to be taken. The questions for the ju

scribing the land sought and setting forth i'y were, what is the value of the land taken,

the name of each owner, incumbrancer, or and the damage to the land not taken? Nei

other person interested in the land, "so far ther question was affected by the maps when

as the same can be ascertained from the the line was actually staked upon the ground

public records." The record owners or inand had previously been adjudged necessary

cumbrancers are therefore the only parties for a public use. It is true the appellants

made necessary by this statute. The next claim their land extended further east than

section provides that a certain notice "shall was admitted by the respondent, and there

be served on each and every person named fore gave them 90 or 100 feet more land to

therein as owner, incumbrancer, tenant, or the east of the base of Castle Rock, which

otherwise interested" in the land. Vo proappellants sought to show is a rock quarry

vision is made in the act for the service of which is greatly damaged by the construc

notice upon incumbrancers or purchasers of tion of the railway line; but the evidence of

the land after the proceedings are begun. It appellants on this subject showed conclusive is, no doubt, required that tenants or persons ly that the stone could not be quarried from

in possession are required to be served with Castle Rock profitably unless the stone was

notice; but incumbrancers or purchasers with thrown by a blast a distance of from 200 to

notice after the proceedings are begun are, 400 feet beyond the appellants' line, even if

of course, bound by the record and take sulthe east line were located 100 feet further ject thereto. In Re Smith's Petition, 9 Wash. east than the line claimed by respondent.

S.), 37 Pac. 311, 491, this court said: "It The exact location of this line is therefore

has been frequently said by courts that the inmaterial, because, in any event, the quar

taking of land by eminent domain is a prory could not be profitably operated without (eeding in rem, and the service of a condestroying property which appellants did not structive notice has been justified by the own and coulil not acquire.

practice which prevails in that class of cases. Appellants next contend that the court err- ! But it is well known that proceedings in rem ed in giving the following instruction : "If presuppose that the complaining party has a the petitioner commenced a suit to appro

superior right to the subject of the suit, or priate a right of way across the Snooks do a right to liave it subjected to his claim and nation land waim and filed its lis pendens that the first requisite is a seizure of the thereof in the auditor's office in Skamania thing itself, after which follows notice. "The county, Wash., and subseyuent thereto claim theory of the law is that all property is in ants obtained an option or agreement to pur the possession of its owner, in person or by chase a part of said donation land claim, agent, and that its seizure will, therefore, through which said proposed road extends operate to impart notice to him.' Windsor and subsequent thereto said case came on to v. Veleigh, 93 ('. S. 274, 2:3 L. Ed. 914." be heard and the damages were assessed and It follows, of course, if these proceedings are paid and the right of way appropriated by in rem, subsequent purchasers are bound boy the petitioner, then the petitioner is the own- the proreedings pending, and are bound to er of said right of way and claimants' said take notice thereof where possession is takright to purchase is subsequent and subordi en prima facie by staking the line ulion tie

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