[6] The giving of the following instruction is assigned as error: "You are further instructed that the defendant as executrix of the estate of Arthur S. Burr, with the plaintiff for the payment of the note if you find from the evidence was negotiating signed by said Arthur S. Burr above mentioned within a year after giving notice to creditors, viz. on the 16th day of May, 1914, it was the direct the plaintiff to file a sworn claim against defendant's duty and obligation to notify and said estate, she being the executrix of the estate, and if you find from the evidence that the said defendant did so negotiate for the payment of said claim, but failed to so notify and direct the plaintiff to file such claim, then such failure is evidence which you may consider in connection with other evidence in the case that defendant intended to defraud plaintiff out of her said note and claim." [1, 2] The case went to the jury on conflicting testimony. The verdict is conclusive of all the facts, but defendant assigns as error the ruling of the court admitting in evidence the appraisement, the report of the executrix to the state tax commission, and the order of solvency made by the court when the will was admitted to probate. This order is not in the files, but it was introduced at the trial. Counsel seem to rest their charge of error upon the belief that the Counsel lays emphasis upon that part of issue was whether the estate was in fact worth a sum approximating the amount of the instruction which for convenience of arthe inventory, whereas the issue was wheth-gument we have italicized. It may be granter defendant had falsely misrepresented the ed that the instruction is inapt in form, but fact of solvency. The appraisement which when considered with the first condition "if was accepted and returned by her to the you find from the evidence (defendant) was state tax commission was competent as a negotiating with the plaintiff for the paydeclaration against interest and a rebuttal ment of the note," the italicized words mean of her statement that the estate was bank-no more than that a promise to pay, coupled with a concealment of the fact that the claim rupt. should be presented as a claim against the estate, was a circumstance which might be considered with other testimony as evidence of deceit. In the light of the issue and an actual payment upon the note, the instruction does not mean that the executor is under any duty, independent of the facts of the case, to advise the filing of a claim, but rather that he may be held as for deceit if it is shown that his negotiations for payment had gone to the extent of holding out his own promise, although it may not be binding in law. [3] But, if it were not so, defendant is not prejudiced, for the order of solvency, being in itself a judgment of a court of general jurisdiction, was competent to prove at least prima facie the issue to which it was directed, that is, the solvency of the estate. [4] It developed on the cross-examination of the plaintiff that a memorandum had been pinned to the note by Burr in his lifetime to the effect that: "This note is secured by an assignment of mortgage for $500, with accrued interest, by Charles T. McDonald, said mortgage is due October 30, 1914, and is secured by lot 5, block 5, central Seattle." The court rejected this offer because the defendant had not pleaded the fact. This is assigned as error, but no prejudice resulted. It was not competent as proof of an assignment, in the absence of a showing that the assignment could not be produced. We can hardly hold that defendant has been prejudiced by a rejection of the memorandum, when we would hold as a matter of law that the memorandum was incompetent if it had been admitted over objection. [5] It is complained that the court erred in instructing the jury that they might find defendant liable if they found that the statements made by her were false and fraudulent, and they further found that plaintiff relying on them did not file a claim against the estate. This instruction goes to the gravamen of the case. It directs the mind of the jury to the controlling issue, that is, whether the representations were false and fraudulent, and whether by reason thereof plaintiff was misled to her damage. The action being for deceit, and not upon con [7, 8] It is said that the verdict is excessive. The court instructed the measure of recovery as the amount of the note with interest. Counsel contends that a recovery could not in any event exceed the amount that the estate would have been able to pay, and inasmuch as it is not shown that the assets will exceed the liabilities on final settlement no recovery can be had. Here again counsel fails to hold fast to the real issue. The contention is based on the assumption that the suit is against the executrix and is to be paid out of the estate. Solvency has a well-defined meaning in law; it means an excess of assets over liabilities; the power to pay debts in due course. It is true that the defendant undertook to show that the estate was incumbered, but this did not overcome the prima facie case. The burden was on defendant to show, not incumbrances merely, but an actual state of insolvency to defeat plaintiff's case. This she not only did not do, but, as we read the record, adroitly avoided doing. ELLIS, C. J., and HOLCOMB and MOUNT, (101 Wash. 51) E. F. BROAD, Limited, v. ERICKSON (Supreme Court of Washington. April 4, 1918.) If defendant buyer was to pay for the timber in Australia and not in the United States and in American money and stand the expenses of making such payments, the loss of exchange and discount on payments made must be borne by it; fixing the price as a certain number of dollars per thousand, plus cost, freight, and insurance, being merely a convenient way of stating the price in American money. judgment against it, and assigns its errors thereon. All of these assignments involve questions of fact except as to the conclusions which followed the findings. We have carefully examined the entire record, and are of the opinion that the evidence supports the findings of the trial court. The argument of appellant upon these assignments of error is considerably involved and complicated, but we think the issues were very simple. In finding No. 3, for instance, the court found that the agreed price of the timbers amounted to $31,242.49. This Department 2. Appeal from Superior was arrived at by computing the price of Court, King County; R. B. Albertson, Judge. the short timbers at $65 per thousand and Action by E. F. Broad, Limited, against of the longer timbers at that price plus the Erickson Construction Company. Judg- three shillings per hundred feet extra, with ment for plaintiff, and defendant appeals. a still greater price on a few extra long Affirmed. Corwin S. Shank and H. C. Belt, both of Seattle, for appellant. Donworth & Todd, of Seattle, for respondent. (3) HOLCOMB, J. This action is one to recover a balance alleged to be due upon the purchase price of a lot of Australian hard wood, sold and delivered by respondent to appellant for use in the construction of a dry dock for the United States government at Bremerton. Upon the trial of the issues the court found, in substance: (1) That respondent sold and delivered to appellant hardwood timbers at an agreed price of $31,242.49, and that the timbers were shipped from Sidney, Australia, to Bremerton. (2) That in connection with such shipments respondent incurred expenses in consular invoices and cablegrams in the amount of $25.10, which expenses according to the general custom of the trade were to be paid by the purchaser or consignee; that appellant was indebted to respondent in that amount. That appellant had paid $30,063.36 to respondent, and that there was a balance owing to the respondent from appellant in the sum of $1,204.23. (4) That according to the agreement between appellant and respondent the timbers ordered were to be of certain dimensions as modified by the parties; that all of the timbers so ordered except 20,000 feet were up to the dimensions specified. (5) That the 20,000 feet which were not according to the dimensions specified could have been purchased at the sum of $78 per thousand; that appellant sold the 20,000 feet for $65 per thousand. (6) That appellant was damaged in the sum of $260 by reason of the fact that 20,000 feet of the timbers were not up to the dimensions ordered, leaving a balance all told due to respondent of the sum of $1,124.55. For the last-mentioned sum the trial court gave respondent judgment against appellant. Appellant excepted to the findings numbered 3, 4, 5, and 6, and the conclusions of law in conformity therewith and supporting the timbers. The price of three shillings extra Objection is made to the allowance of the cost of consular invoices and cablegrams. It is conceded that the duty was to be paid by appellant upon the arrival of the shipments in this country. The consular invoices issued by the United States consular officer were necessary in order that the shipments could be received in this country and for the payment of duty. While there was a dispute as to whether the timbers were to be shipped f. o. b. Bremerton, or c. i. f., that is, cost, insurance, and freight, there was testimony justifying the court in finding that the shipments were to be made cost, insurance, and freight, and the insurance and freight were invariably paid by prepaying upon shipment and adding it to the cost of the timbers. The other items, consular invoices and cablegrams, were included in cost, and there was testimony that that was the invariable custom in shipments from overseas. These terms would include consular invoices and cablegrams incidental to shipments as well as insurance and freight. The contract was made by appellant with the Ehrlich-Harrison Company, a timber brokerage concern of Seattle, acting through a Mr. Abbott. The contract was for the materials to be ordered from respondent in Sidney, Australia. The price to be paid was stated in American money, but was to be paid to the respondent in Australia, and appellant agreed to and did furnish a letter For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes timbers which it procured as necessary to complete its order, there was evidence which would have justified the trial court in finding that it could have procured the timbers for $76, while the trial court allowed $78 per thousand for the 20,000 feet short. Judgment affirmed. of credit to cover the $60 per thousand that appellant paid $84 per thousand for the which was to be paid to respondent in Australia. It was not therefore a contract made between two parties in this state, but was a contract made between a party in this state and a party in Australia. A letter of credit which appellant authorized its bank to deposit in a bank in Australia, followed by a cablegram and a letter from appellant's bank, apparently interpreted the understanding of the agreement between the parties on the part of appellant, that respondent should receive the $60 per thousand feet upon shipping documents and policy of insurance, including consular invoice with costs, insur-McKILLIP v. GRAYS HARBOR PUB. CO. ance, and freight added to the cost of the timbers. This was later confirmed by letter from appellant to the bank in Sidney. ELLIS, C. J., and MOUNT and CHADWICK, JJ., concur. et al. (No. 14393.) (100 Wash. 657) (Supreme Court of Washington. April 3, 1918.) 1. LIBEL AND SLANDER 7(1)-CRITICISING CANDIDATE FOR OFFICE-WORDS LIBELOUS PER SE. Under Rem. Code 1915, §§ 2424, 2425, decandidate for county superintendent of schools fining libel, paid advertisement stating that had waged campaign of abuse and slander, was disqualified for office, and had lied about an ed him as unworthy of the office he sought, and honorable opponent, and that his conduct brandthat his vicious methods should be disapproved of, was libelous per se, especially in view of section 4964, making false assertions in elec tions criminal, since such advertisement charged a crime. ED COMMUNICATION"-CRITICISM OF CANDI DATE. The third assignment of error assails the fifth finding of fact, to the effect that appellant had paid no part of the sum agreed upon except the sum of $30,063.36, leaving a balance due and owing of $1,204, based upon the contention that the court credited appeltant only with the proceeds of the drafts negotiated for the advance payment at $60 per thousand converted into American money at the current rate of $4.8665. It is apparent that all that the court did was to convert the total credit of money paid by appellant 2. LIBEL And Slander ~~48(3)—“PRIVILEGin Australia in English money into American money at the then current rate, which amounted to the sum found in American tion 2430, Rem. Code 1915, providing that every Such article was not privileged under secmoney. It is claimed that by this move ap-communication made to a person entitled to or pellant lost approximately $293.39 by reason of exchange and discounts on the payments made. But if appellant was to pay for the timber in Australia and was to stand the expense of making such payments, that is, charges and discounts, this loss of exchange and discounts must be borne by it. That was one of the costs and charges contemplated in the contract entered into. It is a contract whereby the payments were to be made not in the United States and in American money, but in Australia, and the fixing of the price at $60 per thousand, plus cost, freight, and insurance, was only a convenient way of stating the price in American money. As to the claim of error in the finding of the court that but 20,000 feet of the timbers delivered, instead of 46,626 feet, were too small, and in finding that the cost to the appellant of buying the additional lumber was $1,560 instead of $3,925.20, the amount which appellant paid to replace the shortage in timbers, the evidence, while in conflict, justified the finding. concerned therein by one also concerned in or entitled to make it shall be privileged, since dethat the article was false, and no person could murrers to the complaint admitted its allegation be interested in the false defamation of a candidate. and Phrases, First and Second Series, Privileg- 3. LIBEL AND SLANDER ~48(3)—WOR LI Such advertisement, if privileged at all, must be justified under Rem. Code 1915, § 2425, as motives and for justifiable ends, when honestly a true and fair statement published with good made in belief of its truth and fairness and upon reasonable grounds for such belief, and consisting of fair comments upon the conduct of any person in respect to public affairs made after a fair and impartial investigation. 4. LIBEL AND SLANDER 48(3)-WORDS LIBELOUS PER SE-PRIVILEGE. Rem. Code 1915, § 4833, permitting newspapers to publish paid advertisements concerning candidacies at elections, does not make privileged a paid advertisement falsely charging that a candidate has waged a campaign of slander and lies. Department 2. Appeal from Superior Court, Grays Harbor County; Geo. D. Abel, Judge. It would serve no useful purpose to enter into an analysis of the intricate and volum- Action by N. D. McKillip against the Grays inous evidence pro and con upon these points. Harbor Publishing Company and others. Suffice it to say that, while the court might | Judgment dismissing the action on plainhave found in favor of appellant upon these tiff's refusal to plead over after demurrer to questions, the evidence does not preponder the complaint was sustained, and plaintiff ate against the findings; and, while it is true appeals. Reversed. O. M. Nelson, of Montesano, for appellant, I further alleged that the charges in the artiBridges & Bruener, of Aberdeen, for respond- cle quoted are false and untrue, and were ents. known to be such by the respondents at the time they were published; that the publication of the article was malicious and was intended to, and did, expose the appellant to CHADWICK, J. This is a civil action for damages arising out of the publication of an alleged libelous article. A demurrer was in-hatred, contempt, ridicule, and obloquy, and terposed to the complaint and sustained. The plaintiff elected to stand upon his complaint and judgment was entered dismissing the action. This appeal followed. was intended to, and did, deprive the appellant of the benefit of public confidence, social intercourse, and the respect of his friends and the electors of the county; that T. W. Bibb, the person named in said article, was an opposing candidate at the general election of 1916; that the appellant did not at any time make any false assertion or propagate any false report concerning Bibb or his candidacy for office which had a tendency to prevent his election or with a view thereto; that because of the publication of said article the plaintiff has suffered mental an and reputation; that he has been deprived of public confidence, the respect of his fellow men; that his mental and physical vigor were thereby impaired; and that he was "thereby defeated for election as county superintendent of schools." The complaint alleges in substance that the respondent Grays Harbor Publishing Company is a corporation organized and existing under the laws of this state, and as such is engaged in the publication of the Aberdeen Daily World, a daily newspaper of general circulation throughout the state; that the respondent W. A. Rupp claims to be the publisher and is the editor of such paper, and the manager of the respondent corpora-guish, injury to his feelings, his character, tion; that as such he has charge of the advertisements and other printed matter; that the appellant has for many years past been a teacher in the public schools of the state; that since the 1st day of July, 1902, he has held a life diploma issued to him by the state of Washington; that during many years past he has been acting as county superintendent of schools for Grays Harbor county; that during such time he possessed the confidence of his friends and fellow men; that during the year 1916 he was "again" a candidate for county superintendent of schools for Grays Harbor county, both in the primaries and general election; that on the 6th day of November, 1916, the respondents knowingly, willfully, and maliciously published, or caused to be printed and published, of and concerning the respondent personally and as a teacher and candidate for office, the following article in the Aberdeen Daily World: "(Paid Advertisement). The appeal presents two principal questions: (1) Is the article set forth libelous per se? (2) Is it upon its face privileged? These questions will receive consideration in the order stated. The demurrer was based upon two grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; and (2) that the article set forth is not libelous, and that the publication of the same was privileged. * * The Code (Rem. § 2424) provides that: "Every malicious publication by writing which shall tend: (1) To expose any living person to hatred, contempt, ridicule, or obloquy, or to deprive him of the benefit of public confidence or social intercourse; or (3) to injure any person * * in his * business or occupation, shall be a libel." "Such publication is justified whenever the matter charged as libelous charges the commission of a crime, is a true and fair statement, and was published with good motives and for justifiable ends. "Paid for by friends of T. W. Bibb, Republican Nominee for County Superintendent of Section 2425 provides that every publicaSchools. "We, the undersigned voters of Grays Harbortion having the tendency or effect mentioned County, hereby publicly express our complete in the preceding section shall be deemed maconfidence in T. W. Bibb, Republican candidate licious, unless justified or excused. It furfor Superintendent of Schools, and commend ther provides that: him to the voters of this county as worthy of their support. We wish also to publicly denounce the campaign of abuse and slander being waged against him by N. D. McKillip, his opponent, and we warn all loyal friends of the public schools of this county not to be misled thereby. Over and above many other disqualifications which, in our judgment, render McKillip unfit for this important office, his conduct in thus waging a campaign of slander and lies against an honorable opponent, brands him as unworthy of the office he seeks. Let all true men and women who like to see fair play, place the seal of disapproval on McKillip's vicious methods by rallying to the support of that clean and deserving young man, T. W. Bibb. We vouch for his honesty and for his honor." (Italics ours.) The article purports to have been signed by more than 60 names and concludes with the words "and hundreds of others." It is It is excused when honestly made in belief of its truth and fairness and upon reasonable grounds for such belief, and consists of fair comments upon the conduct of any person in respect of public affairs, made after a fair and impartial investigation." Section 2427 provides that: newspaper, "Every editor or proprietor of a * and every manager of a copartnership or corporation by which any is issued, is chargeable with the publication of any matter contained in any such * newspaper * newspaper. [1] I. The article is libelous per se. Byrne v. Funk, 38 Wash. 506, 80 Pac. 772, 3 Ann. Cas. 647; Lathrop v. Sundberg, 55 Wash. ed? [2] II. Is the article on its face privilegThe respondent asserts that it is "at lease qualifiedly privileged" under the provisions of Rem. Code, § 2430, which provides: 144, 104 Pac. 176, 25 L. R. A. (N. S.) 381; | instinctively shun a liar. This court has Chambers v. Leiser, 43 Wash. 285, 86 Pac. uniformly held that, forasmuch as damages 627, 10 Ann. Cas. 270; Wilson v. Sun Pub-in this class of cases are only compensatolishing Co., 85 Wash. 503, 148 Pac. 774, Ann.ry, malice is not a necessary element of the Cas. 1917B, 442; Wells v. Times Printing Co., cause of action. Byrne v. Funk, supra; 77 Wash. 171, 137 Pac. 457; Quinn v. Review Wilson v. Sun Publishing Co., supra. Pub. Co., 55 Wash. 69, 104 Pac. 181, 133 Am. St. Rep. 1016, 19 Ann. Cas. 1077; Lindley v. Horton, 27 Conn. 58; State v. Keenan, 111 Iowa, 286, 82 N. W. 792; Upton v. Hume, 24 Or. 420, 33 Pac. 810, 21 L. R. A. 493, 41 Am. St. Rep. 863; Riley v. Lee, 88 Ky. 603, 11 S. W. 713, 21 Am. St. Rep. 358; Belknap v. Ball, 83 Mich. 583, 47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622; Danville Democrat Pub. Co. v. McClure, 86 Ill. App. 432; Colby v. Reynolds, 6 Vt. 489, 27 Am. Dec. 574; 25 Cyc. 336; 18 Am. & Eng. Encyc. of Law (2d Ed.) 920. "Every communication made to a person entitled to or concerned in such communication, by one also concerned in or entitled to make it, or who stood in such relation to the former as to offer a reasonable ground for supposing his motive to be innocent, shall be presumed not to be malicious, and shall be termed a privileged communication." The argument is that it is privileged beIn Byrne v. Funk, supra, it was held that cause it is addressed to the electors and a published article charging one with being has reference to the candidacy of the appelThe complaint (a) a “liar and a poltroon" was libelous per lant for an elective office. se, and that a charge imputing a criminal charges that the article is false and was offense or moral delinquency to a public of-known to be false by the respondents at the ficer was libelous. In the Lathrop Case, a time that it was published. This is admitIt would pass the publication which insinuated that the appel- ted by the demurrer. lant was not a reputable physician and limit of common sense to hold that the elecclassing him with criminal practitioners, tors are "entitled to or concerned in" the patent medicine fakirs, quacks, etc., was willful defamation of the character of a held libelous. In the Quinn Case it was held candidate for public office, or that any perthat charging the respondent, an officer hold- son is "concerned in or entitled to make it." Nor can it with reason be said that ing by appointment, "with being a part of the respondents "stood in such relation to the system of jobbery and graft in the management of city contracts" was libelous per the former," that is, to the electors as to se. In the Lindley Case it was held that a reasonable ground for supposing In interpretpublication charging the plaintiff with being their motives to be innocent. a "liar" was libelous. In State v. Keenan ing this section we must keep in mind the the court said that any charge which is with- facts pleaded, that is, that the charge was in the definition of the statute is libelous. made knowing it to be false. The appellant contends that the article charges him with the commission of a crime under the provisions of Rem. Code, § 4964, which provides: offer a In State v. Sefrit, 82 Wash. 520, 144 Pac. 725, in commenting upon this section of the Code, the court said that it is but a statutory declaration of the general doctrine of * Nor shall any person at any such qualified privilege "which exists independelection, knowingly and willfully, make any ent of any statute." Referring to Rem. false assertion or propagate any false report con- Code, § 2425, the court said that the genercerning any person who shall be a candidate al rule of privilege had not been enlarged thereat, which shall have a tendency to prevent his election, or with a view thereto, and if any person shall be guilty of any act forbidden or declared to be unlawful by this section, he shall be deemed and taken to be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine and imprisonment, or both. by the statute, "which merely adds the defense of excuse to that of justification which existed at common law." The court further said, speaking of section 2430, that it "affords no immunity to a publisher of a newspaper for the publication of matter libelous We think this view is sound. The charge per se different from that which it affords that appellant waged a campaign of "slan- to any other person," and that "the general der and lies" against his opponent, and that rule of privilege is, we believe, correctly inhis method of campaign was "vicious," is terpreted by this court in Byrne v. Funk, equivalent to the charge that he knowingly | supra," where, quoting from 18 Am. & Eng. and willfully made false assertions against Encyc. of Law (2d Ed.) 1041, the rule is thus his opponent with a view to prevent his election. The article clearly charges the appellant with moral delinquency. The charge in effect is that he unlawfully lied about an honorable opponent. To a man of normal sensibilities this is a most grievous charge. That it tended to deprive the appellant "of the benefit of public confidence" stated: "The official acts of public officers may lawfully be made the subject of fair comment and criticism, not only by the press, but by members of the public. But the prevailing rule is that charges imputing a criminal offense or moral delinquency to a public officer cannot, faith, and this though the charge relates to an if false, be privileged, though made in good act of the officer in the discharge of his official |