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remark was a comment on the evidence, and as Such prohibited by Section 16, art. 4, of the Constitution. Was the remark prejudicial? We think it was. As we have said, there was a sharp conflict between the reSpondent and the conductor as to what occurred when the respondent was made to leave the train, and clearly it would aid the jury in determining which of them told the truth to know their respective conditions as to sobriety. It is no justification to say that the comment occurred when the court was ruling on the admission of evidence and not in the charge to the jury, as it is just as harmful to the party offering the evidence to have it discredited by the trial judge in advance of its admission as it is to have it disCredited afterwards. For cases from this court when the general question is discussed, , see State v. Walters, 7 Wash. 246, 34 Pac. 938, 1008; State v. Wroth, 15 Wash. 621, 47 Pac. 106; State v. IIyde, 20 Wash. 234, 55 Pac. 49: State v. Surry, 23 Wash. 655, 63 Pac. 557; Miller v. Dumon, 24 Wash. 648, 64 Pac. 804; French v. Seattle Traction Co., 26 Wash. 264, 66 I’ac. 404; State v. Bliss, 27 Wash. 463, 68 Pac. 87 : State v. Eubank, 33 Wash. 293, 74 Pac. 378; State v. Manderville, 37 Wash. 365, 79 Pac. 977; Patten v. Auburn, 41 Wash. 644, 84 Pac. 594.

The respondent testified that on the afternoon of the day of the injury he visited Priest River, going and coming on the appellant's trains. On cross-examination the appellant sought to ascertain the purpose of this visit, but objections to its questions directed to that end Were Sustained. It would seem that this might properly have been gone into. The respondent was complaining of physical injuries which his own testimony indicated were somewhat severe. As he paid this visit before he consulted with a physician concerning his injuries, and on the afternoon of the day he received them, it would have thrown some light on the question whether or not he was exaggerating his condition to know whether this visit was one of necessity or one of mere convenience. The cross-examination should have been permitted at least to that extent.

Since there must be a new trial, it is not necessary to inquire whether or not the verdict is excessive.

The judgment is reversed, and a new trial granted.

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conveyance of other lands described in the con

tract. [Ed. Note.—For cases in point, see Cent. Dig.

vol. 30, Judgment, $ 1108.]

2. SAME. Where, in a suit" to specifically enforce a contract for the conveyance of real estate, plaintiff in his supplemental reply alleged the rendi; tion of a judgment granting the relief prayed for in a prior suit to specifically enforce the contract, defendant, though failing to plead the former judgment not rendered until after the filing of his answer. was entitled to avail himself of the former judgment as a bar to the action. [Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, $ 17S7.]

3. SAME.

A party seeking to specifically enforce. a contract for the conveyance of real estate discovered, before the entry of judgment granting the relief prayed for, a failure to convey other lands as required by the contract, but he failed to ask the additional relief in an amended comlaint. Held, that the former judgment was a §. to a suit for the specific performance of the contract so far as the same related to such other lands.

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by John Collins, prosecuted after his death by Angie B. Collins and others, executors and trustees under his will, against James P. Gleason and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

William Martin and Jas. F. McElroy, for appellants. John B. Hart and Maurice D. Leehey, for respondents.

CROW, J. This action was commenced on June 22, 1901, by John Collins, now deceased, against James P. Gleason, H. S. Connor, and the Fidelity Trust Company of Seattle, a corporation, to compel the conveyance of certain lands in sections 25 and 30, township 21 N., of range 5 E., W. M., in King county, Wash. The plaintiff in his annended complaint, dated October 2, 1902, alleged: That Connor and Gleason were the president and secretary of the defendant corporation; that on or about January 22, 1901, an action, No. 31,138, had been commenced by John Collins, as plaintiff, against the same defendants, to compel the defendants to transfer to him certain stock in the Fidelity Trust Company, or to reconvey certain property theretofore conveyed by him to such company. That the cause Was after Wards Settled, a written memorandum or agreement being made as follows: “Seattle, Washington, May 3rd, 1901. Collins surrender G240 slares, stock and trust certificate on Island County land. Fidelity Trust Company make special warranty to Collins for all real estate conveyed by him to company, mortgage on tide land assumed by Collins & take property in mortgage. Company also to convey to Collins one half interest in Anacortes judgment. All monies now on hand belonging to corporation, except Colman money now in court to go to plaintiff. Collins vs. Fidelity Trust Company to be dismissed, each party to pay own costs. Defendants to have Colman money now in court, and to have no other money from plaintiff. Defendants to pay no cost of receivership. Martin vs. Fidelity Trust Company to .je dismissed without Cost to either party. Connor vs. Collins to be dismissed without cost to either party. Fidelity Trust Company vs. Colman to be dismissed without cost and release of all claims against each other, growing out of any of said suits. Roberts & Leehey. Attorneys for Defendant. William Martin, Attorney for Plaintiff.” That the plaintiff fully performed the agreement on his part. That the plaintiff had theretofore conveyed to the defendant company the land above mentioned, but that the defendant neglected and refused to reConvey it to him in pursuance of the terms of the written agreement. The defendants in their answer, after making certain denials, in substance, alleged that the defendant company never authorized the written agreement; that it had never ratified the same; that the plaintiff was not entitled to any conveyance, and that the defendant company, by its answer, offered, by placing all parties in statu quo, to rescind any action its officers had taken towards part performance of the written agreement. To this answer the plaintiff originally replied by denials only. On July 11, 1903, it having been suggested to the trial court that the plaintiff John Collins had died testate, an Order Was entered Substituting Angie B. Collins. John Francis Collins, and R. L. Hodgilon, his executors and trustees, as parties plaintiff. On March 30, 1904, the substituted plaintiffs, with leave of court, served and afterwards filed a supplemental reply, in which they affirmatively alleged that theretofore, to wit, on May 7, 1901. John Collins, as plaintiff. instituted action No. 32,452 against the Fidelity Trust Company of Seattle, one of the defendants herein, to compel specific performance on the part of the Fidelity Trust Company, of the above Contract, by requiring it to assign to Collins a certain lease from the state of Washington to the Fidelity Trust Company of a certain harbor area in King county, Wash., in said lease and in the pleadings of said action particularly described. being lease No. 64, the said contract upon which said action was brought being the same contract and agreement set forth in the amended complaint and the answer in this action; that thereafter such proceedings were had in said cause No. 32,452. that on August 20, 1902. a final decree was entered in favor of the plaintiff Collins, requiring the defendant Fidelity Trust Company to specifically perform the contract by assigning the lease; that the Fidelity Trust Company appealed to the Sulyreme Court of the state of Washington; that on October 3, 1903. subsequent to the filing of the origi:;al relply herein, the Supreme Court

affirmed said decree, and that all issues raised by the affirmative defense herein were raised in said cause No. 32,452, and determined in favor of the plaintiff Collins. Upon these issueS trial was llad and, a ster the plaintiffs had introduced their evidence and rested, the defendants declined to offer any evidence, but moved for judgment. The trial court thereupon, without making any findings of fact, entered a final judgment dismissing the action. The plaintiffs have appealed. The appellants contend that the trial court erred in dismissing the action. The respondents contend (1) that the act of the attorneys in making the memorandum of Settlement was unauthorized ; (2) that the sanie was never ratified by the Fidelity Trust Company; and (3) that, even if it was executed with full authority and subsequently ratified, this action cannot be maintained, as the appellants’ testator during his lifetime maintained One action to enforce the Same agreement in which he obtained judgment, and that if the testator ever had any cause of action against the respondent Company, as alleged in the complaint herein. the same was split by the former action, and the present one cannot be maintained. The last point being conclusive of this case, the others will not be considered. It appears from the evidence, as well as the allegations of the supplemental reply, that action No. 32,452 in the superior court of King county was instituted for the purpose of securing the specific performance of the identical agreement upon which the present at'tion is based, and that the decree entered therein, in favor of appellants' testator, was afterwards affirmed by this court. Collins v. Fidelity Trust Company, 33 Wash. 136, 73. Pac. 1121. This is a subsequent and independent action, brought on the same contract. Although appellants' testator heretofore compelled the respondent, the Fidelity Trust Company, to specifically perform the contract by assigning to him the tide land lease, they are now seeking to compel it to further specifically perform by conveying to them the land in dispute. Appellants' testator never had more than Oile cause of action on the contract. The failure of respondent to convey all the lands contemplated thereby was but one breach which authorized one action only. For one breach of an in(livisible contract there (‘an arise but one cause of action. and, if in Such action the plaintiff does not demand the entire relief to which he is entitled, he cannot afterwards complain. If this action can now be maintained. the appellants ('an hereafter maintain any number of additional actions upon the same contract. The recent case of Kline v. Stein (Wash.) 90 Pac. 1041, is controlling lmere. Appellants contend that the resinondents cannot claim they are estopped by the former judgment, for the reason that the respondents did not plead Such former judgment. The appellants themselves pleaded it in their supplemental reply, and, when they did so, the respondents demanded judgment upon the pleadings. The former judgment had not been entered when the original answer was made herein. The facts were all before the court in this action, and we fail to see why it should not apply the law to the controversy was thereby terminated, and the writ would be dismissed. Application by the state, on relation of M. L. Clifford, for the revision of an order of the superior court of Pierce county and others dismissing a petition to compel a witness to give testimony by deposition under a subpoena duces tecum. Petition dismissed.

facts pleaded and admitted, whether plead- .

ed by the respondents or the appellants. The appellants further contend that, at the time of the bringing of the former action, they had not discovered the failure of the respondents to convey the land now in dispute; that they learned of such omission later but prior to the commencement of this action. The amended complaint, however, contains no allegation that such want of knowledge was due to the fraud or deceit of the respondents. Appellants’ testator did discover such failure to convey, not only before the former judgment was entered, but also before he filed his amended complaint in this action. He had ample opportunity to ask the additional relief, by specific performance, in such amended complaint, but failed to do so. It is a general rule in both law and equity that, where a party inadvertently or by reason of his own negligence or mistake, and Without fault or fraud of the adverse party, takes judgment or decree for less than he is entitled to recover, he is estopped from bringing a second action for the residue. When the appellants' testator discovered the omission or failure of the respondents to make an assignment of the tide land lease, it was his duty to immediately ascertain whether other Omissions Or breaches of the Contract existed, and to bring his action for all remedies to which he was then entitled. Having failed to do this, he certainly could in his amended complaint have demanded the further specific performance now sought, as the record discloses that he did actually learn all the facts in ample time to do SO. In Kline V. Stein, supra, we said: “But the appellants assert that the allegation to the effect that this tract was left out of their original complaint through accident and mistake was made advisedly, and, inasmuch as the respondents' motion for judgment on the pleadings concedes it to be true, this fact alone is sufficient to show the inconclusiveness of the original judgment. This contention, also, mistakes the rule. If the appellants have by accident or mistake on their part failed to recover all of the land that they were entitled to recover, their remedy is not to sue for the omitted portion, but is rather to seek relief in the original action by opening up the judgment amending their pleadings, and trying anew their rights to the property.” The appellants in this action have not only elected to retain the original judgment and its fruits, but they have also

rejected the offer and tender of the respondents to place the parties in Statu quo. The judgment is affirmed.


(47 Wash. 69) COLLINS et al. v. G.I.EASON et al.

(Supreme Court of Washington. Sept. 6, 1907.) JUDGMENT – REs JUDICATA – SPECIFIC PER

FORMANCE. - A judgment granting the relief prayed for in a suit to specifically enforce a contract for the conveyance of real estate, is a bar to a suit to reform a deed executed in part performance of the contract, since actions to reform the deed and specifically enforce the contract may be joined.

Appeal from Superior Court, IKing County: IR. B. Albertson, Judge.

Action by John Collins, prosecuted after his death, by Angie B. Collins and others, executors and trustees under his will, against James P. Gleason and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

William Martin and Jas. F. McElroy, for appellants. John B. Hart and Morris D. Leehey, for respondents.

PER CURIAM. This action, which was Commenced On June 22, 1901, arises upon the same memorandum of agreement upon which cause No. 6,561, Collins v. Gleason et al. (decided by this court on this date), 91 Pac. 56t, is based. The plaintiffs here sue to reform a deed executed by the defendant, the Fidelity Trust Company, in part performance of that agreement; it being alleged that certain land was by mutual mistake incorrectly described therein. From a judgment in favor of the defendants, the plaintifi's have appealed.

The appellants have heretofore recovered a judgment for specific performance in a separate action. On the Salme Contract; hence on the authority of Collins v. Gleason et al., No. 6,561, supra, the judgment herein must be affirmed. Although the appellants here seek to reform the original Contract, there has nevertheless been a splitting of actions, as actions to reform and specifically enforce the same contract may be joined. We will, however, state that we do not find the evidence sufficient to sustain the appellants' allegation of mutual mistake.

The judgment is affirmed.

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R. F. Laffoon, for plaintiff. G. C. Israel, for respondents.

PER CURLAM. A commission, with interrogatories annexed, to take the deposition of a witness, was issued by the district court of the district of Alaska, Division No. 1, at Juneau, Alaska. The cause wherein the commission issued was then pending in said court, and the witness whose testimony was sought was the plaintiff in the action and resided in Pierce county, Wash. The commission was directed to M. L. Clifford, a notary public residing in Pierce county. Upon receipt of the commission the commissioner attempted to take the testimony of the witness, and it is claimed that the witness refused to honor a subpoena duces tecum to produce certain letters and documents, and refused to answer certain interrogatories propounded to him. The commissioner thereupon applied to the superior court of Pierce county for an order requiring the witness to show cause why he should not be compelled by order of said court to produce the documents and answer the interrogatories aforesaid. An order to show cause was issued, and, upon return thereto, the court held that it was without jurisdiction to make any order in the premises, and dismissed the petition. Application was then made by the commissioner to this court for a writ of review to review the action of the superior court. During the pendency of the proceeding before this court, a certificate from the said district court for the district of Alaska has been filed here, showing that the Original cause in which the commission to take the deposition was issued was by that court dismissed without prejudice on the Sth day of January, 1907. The relator, in an affidavit filed, does not controvert the fact of dismissal, but asserts that the testimony should still be taken to preserve it for future use in any action that may be brought concerning the same subject-matter. Inasmuch as the action in which the commission to take testimony was issued has been discontinued, We think it should be held here that the controversy presented by the relator's application here has ceased.

The relator's petition is therefore dismissed.

(47 Wash. 99) IPOWERS v. WEESTER et al. (Supreme Court of Washington. Sept. 6, 1907.) 1. PUBLIC LANDs — SUIT To CANCEL, DEED FROM STATE-PARTIEs. The state is a necessary party to a suit to rangel, a deed from it., the property reverting to it if the deed is canceled.

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MOUNT, J. The appellant brought this action to Set aside a Sale of School lands, to cancel a deed therefor executed by the state to respondent Croft, and to compel the respondent IRoss, the state land commissioner, to Teoffer the land for Sale. The lower court sustained a demurrer to the amended complaint, upon the grounds that the court had no jurisdiction, that plaintiff had no legal capacity to sue, that there is a defect of parties, and that the complaint fails to state factS Sufficient to constitute a CauSe of a Ction. The plaintiff refused to plead further, and the action was dismissed.

The complaint alleges, in substance, that the State has been, and now is, the owner of the school land in question, being 10 acres situate in IXing county; that prior to June, 1906, Joseph I. Croft was in possession of the land under a lease, and had a sawmill thereon of the value of $1,000 and no more; that on June 1, 1906, said Croft applied to the state board of land commissioners for appraisement and sale of the lands, and thereafter the land was appraised at $350 per acre, and ordered sold : that thereafter certain of the defendants and E. W. Ross, land commissioner, entered into a conspiracy to obtain Said land at less than its real value; that, in pursuance of that conspiracy said Ross caused the appraisement to be reduced to $100 per acre, and fraudulently caused the sawmill thereon to be appraised at $5,453.34; that said land at said time was worth $1,000 per acre, exclusive of the improvements; that on June 30, 1906, at the time and place where the sale was fixed, the plaintiff and certain of the defendants appeared and the land was offered for sale by the deputy auditor of King county, where

the land was located, whereupon Joseph I.

Croft bid the sum of $6,453.34, the annount of the appraised value as reduced as aforesaid: that thereupon the respondent Raymond made a bid of $14,453.34, and there being no other bids, the land was struck off to said Raymond ; that said Raymond fraudullently refused to make payments upon his bid, and thereafter the said Ross fraudullently and unlawfully reported the sale of 570

said land to said Joseph I. Croft for the sum of $1,000, and induced the Governor and Secretary of State to issue a patent for said land to said Croft; that said bid of said Raymond was a fraudulent bid, for the purpose of preventing the plaintiff from bidding at said sale: that said Ross knew that the interests of the state had been injuriously affected by fraud and collusion, and that said Croft was not the highest bidder at said sale; that the defendants knew that plaintiff was desirous of bidding on said property at said sale, and was present with $10,000 to bid for said land, but was prevented from bidding by the conduct of Said Raymond, who was in collusion with the other respondents; that appellant had no knowledge of the conspiracy or fraudulent acts of respondents, and therefore filed no affidavit with the commissioner of lands setting forth fraud or asking for a resale; that, if said land is offered for resale, plaintiff will bid $10,000 therefor; that plaintiff has demanded of the Attorney General that he bring an action to Set aside said Sale, but the Attorney General reluses to do so; that plaintiff is a resident and taxpayer of King county, and will suffer irreparable injury if defendants are permitted to retain said land, and brings this action as a taxpayer and as an intending buyer and on behalf of others similarly situated. The trial court properly sustained the demurrers. The first object of the action is to set aside the deed from the State to respondent Croft. If the deed of the state is set aside, the property reverts to the state. Therefore the state is a necessary party to such an action. The action cannot be maintained at the suit of a private person who has no interest. in the property. St. Louis Smelting Co. v. Kemp. 104 U. S. 636. 26 L. Ed. 875; Welsh v. Callvert. 34 Wash. 250. 75 Pac. 871; Horsky v. Moran, 21 Mont. 345. 53 Pac. 1064; Tacoma v. Bridges. 25 Wash. 221, 65 Pac. 186; State ex rel. Shores v. Itoss (Wash.) 87 Pac. 262. In the case of St. Louis Smelting Co. v. Kemp, supra, the court said: “If in issuing a patent its officers took mistaken views of the law. Or drew erroneous conclusions from the evidence, or acted from imperfect views of their duty, or even from corrupt motives, a court of law can afford no remedy to a party alleging that he was thereby aggrieved. IIe must resort to a court of equity for relief, and even then his complaint cannot be leard unless he connects limself with the original source of title, so as to be able to aver that his rights are injuriously affected by the existence of the patent : and he must Jossess such equities as will control the legal title in the patentee's hands. Boggs v. Merced Milling Co., 1+ Cal. 279. :}(53. It does Inot lie in the Imouth of a stranger to the title to “oniPlain of the act of the goverilinent With respect to it. If the goverilineut is dis

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satisfied, it can, on its own account, authorize proceedings to vacate the patent or limit its ODeration.” If the patent may be avoided for fraud, the appellant has no interest in the land except as a citizen of the state. When the deed of the state is set aside, the land reverts to the state. The appellant cannot even require the land to be resold, because the power of resale rests in the discretion of the board of state land commissioners. State ex rel. IRussell v. Bridges. 30 Wash. 268, 7.0 IPac. 50(3 : State ex rel. I’elton v. Ross, 39 Wash. 390, 81 I’ac. S65. Nor can appellant maintain the action as a citizen and taxpayer. Jones v. Iteed, 3 Wash. St. 57. 27 Pac. 1067 ; Birmingham V. ("heetham. 19 Wash. 657. 54 Pac. 37; Tacoma v. Bridges. 25 Wash. 221, 65 I’ac. 1S6; State ex rel. White v. Fish Company, 42 Wash. 409, S5 Pac. 22; State ex rel. Shores v. Ross (Wash.) S7 Pac. 262. In the case of Tacoma W. Bridges, supra, this court said: “WhateVel' may be the rule elsewhere, it is the rule in this state that a taxpayer and citizen suing in a private capacity cannot maintain a suit to enjoin a state officer from committing a breach of his public duty, without showing that he would suffer an injury thereby differing in kind from that suffered by the public at large.” And in State ex rel. Shores v. Ross, supra, we said: “If the deed to these tide lands had been delivered after the respondent was reliably informed that the application and bidding were fraudulent, to the detriment of the State, it would be the duty of the respondent [Commissioner of public lands] or of some official of the state to immediately cause an action to be brought to cancel said deed, and to recover the property, title to which was thus fraudulently acquired.” 26 Am. & Eng. Enc. of Law (2d Ed.) pp. 395–397. The complaint, having shown that the appellant has no special interest in the lands and not being authorized to maintain the action as a taxpayer, fails to state a cause Of action. The judgment is therefore affirmed.

HADLEY. C. J.. and CROW, ROOT, RUDIXIN, and DUNBAR, J.J., concur.

(47 Wash. 85)


(Supreme Court of Washington.


Ilaws 1899, p. 302. c. 149. § 126, defines a bill of exchange as an unconditional order in writing, addressed by one person to another. signed by the person giving it, requiring the person to whom addressed to pay on demand or at a fixed or determinable time a sum certain to order or to bearer. Section 127, p. 363, provides that a bill of itself does not operate as an assignment of the funds in the hands of the drawee, and that the drawee is not liable unless he accepts the same. Held. that a writing addressed by

Sept. 6, 1907.) ASSIGNMENTS —

i oue to another, requesting him to pay a third

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