ute. Section 7840, Rem. & Bal. Code, and We are clearly of the opinion that it is in- ments being still comparatively new and of value. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 878.*] Department 1. Appeal from Superior Sherwood and Earl W. Husted, for respond- ents. PARKER, J. The plaintiff, a taxpayer of the city of Everett, seeks to have the city and its officers enjoined from paying certain warrants alleged to have been issued for indebtedness of the city which was incurred at a time when its indebtedness was in excess of 5 per cent. of the assessed value of the taxable property within the city. A trial upon the merits resulted in a denial of the relief sought and a dismissal of the action. From this disposition of the cause the plaintiff has appealed. After issues were made by the pleadings, an agreed statement of facts was signed and filed by the attorneys for the respective parties, upon which the trial court evidently disposed of the cause without any other facts being before it. The warrants here involved were issued between April 8, 1909, and October 8, 1910, presumably for indebtedness incurred about the time of their issuance. FULLERTON, MORRIS, MOUNT, and This indebtedness was incurred at a time ELLIS, JJ., concur. DEBTEDNESS DEBTS AFFECTED. Warrants or other evidence of indebtedness issued to pay the salary of city employés or for materials and supplies furnished the city which were necessary for the conduct of its ordinary affairs are valid, though the indebtedness be in excess of 5 per cent. of the value of the taxable property in the city, the limit fixed by Const. art. 8, § 6. when the city was in debt to an amount exceeding 5 per cent. of the assessed value of the taxable property therein. The corporate authorities, deeming it advisable that this PILLING v. CITY OF EVERETT et al. indebtedness be vadidated by the voters of (Supreme Court of Washington. Feb. 2, 1912.) the city, on May 8, 1911, passed an ordi1. MUNICIPAL CORPORATIONS (§ 864*) — IN-nance submitting that question to the votLIMITATION OF AMOUNT ers at a special election to be held June 13, 1911. An election was held on that day accordingly, when all of this indebtedness was ratified by the affirmative vote of more than three-fifths of the voters of the city voting at that election. At that time the total indebtedness of the city did not exceed five per cent. of the assessed value of the taxable property therein. This ratification election was held under the provisions of chapter 120, p. 614, of the Laws of 1911. It is not contended that there was any failure to comply with the provisions of this law in submitting the question of the ratification of the indebtedness to the voters of the city. No formal findings of fact were made by the trial court, but recitals were made in its judgment as follows: [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1828-1835; Dec. Dig. § 864.*] 2. MUNICIPAL CORPORATIONS (8 878*)-PUBLIO DEBT-CONSTITUTIONAL INHIBITIONS. Where indebtedness incurred by a city for municipal improvements was void under Const. art. 8, § 6, providing that no city may become indebted in an amount exceeding 12 per cent. of its taxable property without the assent of three-fifths of the voters, and that, in no case requiring such assent shall the total at any time That the exceed five per cent., it could not be ratified by warrants set forth in plaintiff's complaint a vote, but such indebtedness might be ratified were each for mandatory expenses of said at a subsequent election, and at a time when the constitutional inhibition would not be vio- city, and that the election was duly held lated by incurrence of the debt; the improve-validating said warrants at a time when the city of Everett was within its five per cen- that time this indebtedness was not a mantum limit of indebtedness, and that said datory expense of the city government and warrants are legal and valid warrants and was invalid because it exceeded, not only obligations against said city of Everett." Ex- the 1% per cent. debt limit, but also exceedception was duly taken by counsel for appel-ed the 5 per cent. debt limit; and that it lant to the recitals in the judgment which in effect find that the warrants were issued for mandatory expenses of said city, and are valid obligations against the city. [1] The principal contention of counsel for appellant is that the court erred in holding that the indebtedness evidenced by these warrants was for "mandatory expenses of said city." It is conceded that by the use of these words the learned trial court meant that the indebtedness was of that nature which the city might lawfully incur, notwithstanding the city had passed the debt limit prescribed by section 6, art. 8, of the Constitution, under the following decisions of this court: Rauch v. Chapman, 16 Wash. 568, 48 Pac. 253, 36 L. R. A. 407, 58 Am. St. Rep. 52; Farquharson v. Yeargin, 24 Wash. 549, 64 Pac. 717; Hull v. Ames, 26 Wash. 272, 66 Pac. 391, 90 Am. St. Rep. 743. The only evidence we have touching the nature of the various items of indebtedness for which these warrants were issued is that contained in a list of the warrants set forth in the agreed statement of facts, and the very general statement contained in the ordinance providing for the election. The list of warrants contains evidence of a very brief and limited character touching the nature of the several items of indebtedness. After the number of each warrant, its date, its amount, and the name of the payee, there follows a very brief statement of the nature of the service rendered or property furnished the city for which the particular warrant was issued. There is, however, enough there stated to warrant the conclusion, in the absence of other evidence, that the warrants were all issued in payment of the salaries of the officers of the city, the salaries and wages of other employés of the city for services rendered by them in the necessary conduct of the city's ordinary affairs, or for material and supplies furnished the city which were necessary for its use in the conduct of its ordinary affairs, with the exception of some items, which we will notice later. This being true, it seems unnecessary to discuss the effect of the validating election upon the validity of these items of indebtedness as under the decisions above cited they would be valid in any event. [2] The other items of indebtedness here involved we think were rendered valid by the vote of the people at the time the city was within its 5 per cent. debt limit, even though that limit was unlawfully exceeded when such debts were originally attempted to be incurred. It appears that the city constructed a bridge over the Snohomish river, and, attempting to incur an indebtedness therefor of some $48,000, we will assume that at was an obligation which could not be then incurred or validated even by a vote of the people. Constitution, § 6, art. 8. This is one of the items attempted to be ratified by the election. This record, though not directly so showing, warrants the conclusion that at the time of the holding of this election the bridge was in the possession of the city and used by it as its property. The date of its construction renders it clear that it was at the time of the election comparatively new. We see no reason why the people by their vote at that election validating that indebtedness may not be held to have by their votes then accepted the bridge and in effect created that indebtedness. Surely the bridge and its future use was a sufficient present consideration to support such a promise as the people by their votes then made to the holders of the warrants issued in payment therefor. This would seem to be the logical result, since it is clear that there was then ample power to acquire the bridge and incur such debt therefor without exceeding the 5 per cent. debt limit. All of the other items of indebtedness involved, which required validation by vote of the people, were rendered valid by the election because the record warrants the conclusion that they were incurred for property then comparatively new, and in the possession and use of the city, as the bridge then was. We are of the opinion that the debts evidenced by the warrants involved in this case are rendered valid, either by the fact that they were for such necessary expenses as fall within the previous holdings of this court above cited, and were valid even though they exceed the constitutional debt limit, or fall within that class to which the bridge belongs, which were validated, or we might better say, recreated by the validating election, at a time when their creation did not result in the total debt of the city exceeding the 5 per cent. debt limit. We express no opinion upon the power of the people to validate a debt attempted to be incurred in excess of the 5 per cent. limit by an election held at a time when the city's debt exceeds that limit, and for something that the city could not receive any benefit from after such election. In such a case it might be argued that the city would receive no lawful consideration for its promise to pay such a debt. This is quite a different question from the validation of this bridge debt and others of the same class. We conclude that the judgment must be affirmed. It is so ordered. DUNBAR, C. J., and CROW, CHADWICK, and GOSE, JJ., concur. MOORE ▼. BLACKBURN et al. (Supreme Court of Washington. Feb. 2, 1912.) |suffer for Kellogg's neglect, or whether both mortgages shall be treated as existing liens against the property. 1. PRINCIPAL AND AGENT (§ 24*)-EXISTENCE [1] The answer to this question is to be OF AGENCY-QUESTION OF FACT. determined by our conclusion as to whose Agency is a question of fact to be deter-agent Kellogg was in retaining the money mined by the peculiar circumstances of each case. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 722; Dec. Dig. § 24.*] OF RELATION-EVIDENCE-SUFFICIENCY. Evidence held to show that a broker who secured a loan and received the proceeds of the mortgage to pay prior incumbrances was the agent of the mortgagor, and not of the mort gagee. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.*] Department 2. Appeal from Superior Court, King County; Boyd J. Tallman, Judge. Action by George W. Moore against W. J. Blackburn and others. From a judgment for plaintiff, defendant Blackburn appeals. Affirmed. Allen & Allen, for appellant. S. W. Farquhar and Warren H. Lewis, for respond ent. | to pay off the first mortgage and other liens. Agency is a fact to be determined by the peculiar circumstances of each case, so that there are many cases holding that the broker who acts as intermediary between the parties is, under some conditions, the agent of one party, and, under other conditions, the agent of the other party. [2] It seems to us, however, that the problem must be solved by determining under whose direction the broker was acting. It is plain from the record that Kellogg was acting under the direction of Blackburn in undertaking to pay off the first mortgage. There is no evidence before us that respondent had any knowledge of these prior liens. In fact, the only evidence is that he at no time knew of them prior to November, 1910. What became of the money is unknown. If Blackburn took it, respondent cannot be charged with his failure to pay off the mortgage. If Blackburn left it with Kellogg for MORRIS, J. Appellant Blackburn was the that purpose, which we are inclined to beowner of property in the city of Seattle, lieve from the fact that Blackburn had conupon which there was a mortgage of $1,000, sented that he should do so, instead of his and other liens, approximating $700. He de- attorney, J. H. Allen, and that Kellogg subsesired to unite these liens in one loan, and quently paid interest on it, then, for this applied to J. R. Kellogg, a loan broker, for purpose, he was the agent of Blackburn, and a loan of $1,750. Kellogg found respondent Blackburn and his grantees must suffer for willing and able to make the loan, and, after his failure to fulfill his duty. There can be some negotiations, including the examination no dispute from this record that Moore, at of an abstract by Kellogg, the parties met the time of the loan, had no knowledge of in Kellogg's office on December 23, 1908, to this first mortgage. How, then, could he complete the transaction. Respondent, at make Kellogg his agent to do something, the the request of Blackburn and Kellogg, made necessity for which had at no time and in no out a check for $1,750, payable to Kellogg, manner been called to his attention? Under partly to enable Kellogg to get his commis- these circumstances, the following cases are sion, and partly because Blackburn was un-in point in holding that the broker is the known at the bank; and Kellogg and Black- agent of the borrower: Englemann v. Reuse, burn went to the bank to obtain the money. 61 Mich. 395, 28 N. W. 149; Lipman v. NobIt had been previously agreed between Black-lit, 194 Pa. 416, 45 Atl. 377; Pepper v. Cairns, burn and Kellogg that Kellogg would take 133 Pa. 114, 19 Atl. 336, 7 L. R. A. 750, the proceeds of the Moore loan and pay off 19 Am. St. Rep. 625. the $1,000 mortgage and the other liens, so that the $1,750 mortgage would be the only lien against the property. It cannot be determined from the record what became of the money after the cashing of the check, as Blackburn had left the country, after conveying the property to his codefendant, Walter B. Allen, on July 21, 1909, and Kellogg is dead. However, whoever, as between Blackburn and Kellogg, undertook to pay off the first mortgage neglected to do so, and it is still an existing lien against the property; and the question to be determined on this appeal is whether the amount now due upon it is chargeable to respondent, upon the theory that Kellogg was his agent, and he must It is undisputed that Kellogg was employed by Blackburn to obtain this loan, and was to be paid a commission for his services. This fact alone, under the ruling of many cases, would make him the agent of Blackburn. Thomas v. Desney, 57 Iowa, 58, 10 N. W. 315; Johnson v. Shattuck, 67 Ark. 159, 53 S. W. 888; Knox County v. Goggin, 105 Mo. 182, 16 S. W. 684; Cooper v. Headley, 12 N. J. Eq. 48; Lantry v. Sutton (Com. Pl.) 5 N. Y. Supp. 14. If Blackburn was relying upon appellant's agent to pay off the first mortgage, it seems strange that, from December 23, 1908, until his deed to Allen, July 21, 1909, he made no effort to ascertain if such payment had been CHADWICK, J. Plaintiff is an attorney at law, duly admitted and in good standing at the bar of the state. He brings this action to recover damages for libel. made. His silence is not so strange if he under the name and style of Empire Produndertook to do so himself, or made Kellogg uce Company. From a judgment of dishis agent for that purpose. It is clear that missal rendered on sustaining a demurrer to respondent believed he held a first mortgage, the complaint, plaintiff appeals. Affirmed. and that, as soon as he was informed that E. B. Velikanje and Lee C. Delle, for aphe did not, he went to Kellogg's office to pellant. W. G. Beard, for respondents. ascertain the truth of the fact; and while he was making an investigation Kellogg committed suicide. All these facts convince us it was represented to respondent that he was to hold a first mortgage, and that he at all times believed he so held. The testimony of counsel for appellants establishes the fact that Blackburn agreed that Kellogg should hold the money and pay off the liens for him. Upon all the facts, we are clear that Kellogg was Blackburn's agent for the purpose of making these payments, and that the judgment of the lower court is right. [1] The material parts of his complaint follow: "(4) That on or about the 19th day of October, 1910, the said defendants, and each of them, wrote and published of, or caused to be written and published of, and concerning this plaintiff, and of and concerning him in his said capacity and profession of an attorney at law, in a certain letter written to one John Schmidt, of North Yakima, Yakima county, state of Washington, under said date aforesaid, and which said letter was addressed to the said John Schmidt, at North Yakima, Washington, postage prepaid, and deposited in the United States mail, in the city of Seattle, state DUNBAR, C. J., and MOUNT and ELLIS, of Washington, on October 19, 1910, at 2:30 JJ., concur. Appellants suggest in their brief that the court erred in not allowing a continuance to obtain the testimony of Blackburn. Upon reviewing the record on this matter, we find no error in the court's ruling. The judgment is affirmed. VELIKANJE v. MILLICHAMP et al. (Supreme Court of Washington. Feb. 6, 1912.) 1. LIBEL AND SLANDER (8 7*)-Words LIBELOUS PER SE-FORGERY-UTTERING FORGED INSTRUMENT. A charge in a letter by the writer remitting a balance due on a transaction to another, that the delay in making the remittance was caused by an attorney presenting the writer with forged receipts purporting to be from the writer's agent and trying to collect money on them, is not libelous per se of the attorney because it does not charge him with forgery or of uttering a forged instrument, since the charge does not impute a criminal intent or charge the attorney with guilty knowledge and unless there is guilty knowledge there can be no uttering of a forged instrument. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. § 7.*] 2. LIBEL AND SLANDER (§ 89*)-SPECIAL DAMAGES-ALLEGATION-NECESSITY. Words which are not libelous per se are not actionable unless special damage is alleged to have resulted therefrom. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 213; Dec. Dig. § 89.*] 3. LIBEL AND SLANDER (§ 123*)—WRITING LIBELOUS PER SE QUESTION FOR COURT. The question whether a writing is libelous per se is for the court, unless the writing is ambiguous, in which case the truth of the innuendo is for the jury. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. § 123.*] Department 1. Appeal from Superior Court, King County; Wilson R. Gay, Judge. Action by Milan Velikanje against F. Stanley Millichamp and another, doing business o'clock p. m., a certain false and malicious libel, in words and figures as follows, to wit: "F. Stanley Millichamp. J. B. Wandesforde. Empire Produce Company, Commission Merchants. Wholesale Fruits and Produce. Main 8930-Independent 5695. 914 Western Avenue, Seattle, Wash., Oct. 19, 1910. Mr. John Schmidt, North Yakima, Wash.-Dear Sir: Enclosed find check for $39.34, being net proceeds for balance of peaches not heretofore remitted. You will kindly excuse delay, caused by one Velikanje presenting us with forged receipts purporting to be from our agent at your city, and trying to collect your money on them. As our record did not quite tally with the receipts, we necessarily had to check up with our Yakima agent, which caused the delay. Under no circumstances would we have paid this party your money, as our rule is to remit direct to the grower, paying no attention to any representatives, unless accompanied by written order from said shippers. We have straightened out this matter with our agent, and find the number of peaches unaccounted for to be as shown by the enclosed account sales. Hoping our results prove satisfactory, and thanking you for your favors, we are, Very truly yours, Empire Produce Co. By J. B. Wandesforde.' "(5) That the plaintiff is the person referred to in said letter by the name of 'one Velikanje'; that the aforesaid letter was received by the said John Schmidt, in said Yakima county, and read by him and other persons; and that said defendants, and each of them, knew at the time they wrote said letter, or caused the same to be written, that they were charging the said plaintiff with For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the crime of forgery, and the same was so understood by the said John Schmidt and others. a writing is libelous per se is one of law for the court, unless the writing is ambiguous, in which event the truth of the innuendo will be submitted to the jury. In the Jeffrey Case, although the question was submitted to the jury, the court in so doing practically held the words to be libelous per "(6) That by reason of the said defendants writing, publishing, and using the said false and defamatory language aforesaid, the plaintiff has suffered greatly in reputation, his honesty and integrity, and has been greatly injur-se, having been spoken publicly and imputing ed and prejudiced in his reputation aforesaid, and has been greatly damaged in his profession and business, and has been greatly humiliated, and has suffered both in mind and in body, to his damage in the sum of five thousand ($5,000) dollars." A demurrer was sustained to the complaint, and from a judgment of dismissal plaintiff has appealed. The demurrer was properly sustained. Respondents did not charge appellant with the crime of forgery, or of uttering a forged instrument. They neither impute a criminal intent nor charge appellant with a guilty knowledge. Unless there be a guilty knowledge, there can be no uttering of a forged instrument within the definition of that crime. State v. Hatfield, 118 Pac. 735; State v. Peeples, 118 Pac. 906. [2] The words charged, not being libelous per se, are not actionable unless a special damage is alleged to have resulted to appellant. Denney v. Northwestern Credit Ass'n, 55 Wash. 331, 104 Pac. 769, 25 L. R. A. (N. S.) 1021. * as they did unchastity (25 Cyc. 319), and the issue having been submitted to the jury and being decided right, appellant could not, after verdict, complain of the error. A verdict is vulnerable to attack only when it is contrary to law. The language used by respondents, being plain and unambiguous, and imputing no crime to appellant, or otherwise assailing him in reputation, is not actionable. The judgment of the lower court is therefore affirmed. DUNBAR, C. J., and GOSE, PARKER, and CROW, JJ., concur. BUDMAN v. SEATTLE ELECTRIC CO. (Supreme Court of Washington. Feb. 6, 1912.) 1. APPEAL AND ERROR (§ 1195*)-LAW OF THE CASE. that the questions of negligence and contributory A decision of the Supreme Court on appeal negligence are, under the evidence, for the jury is the law of the case in a subsequent trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § 1195.*] 2. APPEAL AND Error (§ 1195*)-LAW OF THE CASE. Appellant contends that the complaint is good within the rule of Lathrop v. Sundberg, 55 Wash. 144, 104 Pac. 176, 25 L. R. A. (N. S.) 381, Quinn v. Review Pub. Co., 55 Wash. 69, 104 Pac. 181, 133 Am. St. Rep. 1016, Dunlap v. Sundberg, 55 Wash. 609, 104 Pac. $30, 133 Am. St. Rep. 1050, and Jeffrey v. Gill, 56 Wash. 586, 106 Pac. 129. The Lathrop Case goes no further than to state the general rule: It is not necessary that the words published should involve an imputation of crime. It is enough that they be of such a nature that the court can presume, as a matter of law, that they will tend to disgrace the party of whom they are published, or hold him up to public ridicule, or contempt, or cause him to be shunned or avoided." We held that to class a reputable physician among quacks, criminal practitioners, and charlatans was a libel per se. Clearly the words there employed would tend to cause him to be shunned and avoided. | pellant. Jay C. Allen, for respondent. In the Quinn Case there was a direct and open charge of jobbery and graft in the exercise of a public employment. The Dunlap Case we conceive to be an authority sustaining the ruling of the lower court. Taken without qualification, the Jeffrey Case might warrant appellant in his assertion that the case should have gone to a jury. Where the Supreme Court on appeal decided that the questions of negligence and contributory negligence were for the jury, the trial motion to set aside a verdict for plaintiff becourt on a subsequent trial, in passing on the cause against the weight of the evidence, should consider the decision of the Supreme Court, though, under the statute, it has discretion to verdict is against the weight of the evidence. grant a new trial, when, in its opinion, the [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § 1195.*] Department 2. Appeal from Superior Court, King County; R. B. Albertson, Judge. Action by Michael Budman against the Seattle Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed. James B. Howe and H. S. Elliott, for ap MORRIS, J. This is an action to recover damages for personal injuries, and is now before us for the second time. The trial first resulted in a verdict for respondent; whereupon appellant made a motion for judgment non obstante veredicto, coupled with a motion for a new trial. The motion [3] But when properly understood it is in for judgment was sustained, the motion for line with our cases, and the universal hold- a new trial not being passed upon, and plaining of the courts, that the question whether | tiff appealed. Upon the appeal being heard, |