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the case had been fully heard, and submit lows: “The rights of the several parties ted for final determination of the question plainties as well as defendants may be put of title, before the order to transfer was in issue, tried and determined in such suit.” made upon the court's own motion, and all This law exists in California, and tho court, benefit of the hearing was threatened to be in Martin v. Walker, alludes to it as an adlost, which threat was so far realized that ditional reason for its ruling, confirming upon the jury trial the most important wit many preceding cases on the same subject. ness had gone home to another state, whence 3. It was not necessary to allege that there he refused to return. Holding these views, was necessity for a sale in lieu of partition, we shall sustain the motion to strike the or that partition could not be made withstatement of the Jury trial, and retain the out great prejudice to the owners. Code other as the statement in the case.

Proc. $ 584, provides that if such a state of 2. The complaint shows, on the face of it, facts appears from the evidence, without althat the respondents had been since 1883 | legations in the complaint, a sale may be in possession of the land sought to be par ordered. titioned, under a conveyance of the whole 4. There had been no administration of the tract from the father of the appellant, who estate of Mrs. Hill, deceased. We hold, howclaimed a half interest, as sole heir of his ever, that where the wife died in 1883, leav. mother, deceased in 1883, before the convey. ing an only child and her husband surviv

These facts, respondents claim, pre ing, and there had been no administration cluded any suit for partition until there had upon her estate, or upon the community been an action at law to try title. Our stat. property, there was a clear presumption in ute (Code Proc. $ 577) provides: "When 1891 that, as to the community real properseveral persons hold and are in possession of ty, there was no necessity for administrareal property as tenants in common," there tion, and that the right of the child to the may be a partition; and the common-law | possession of his share in the community rule is well settled that, where the party real estate, as heir of his mother, was comseeking partition has been ousted of pos plete. The husband alone has the power to session by his alleged tenant in common manage and control community real properunder a claim of adverse title to the whole ty, and he alone can incur indebtedness which estate, equity will not determine the legal would become a charge upon such property, rights of the parties. Freem. Coten. 8 447. except for family necessities. These are his Where the pleadings of the defendant dis debts, and to him they are presented for closed the adverse claim, the practice was payment. Statutes of limitation will run to stay the partition proceeding until the against them while he lives and remains in plaintiff got his judgment for possession at the state; and after so long a time, and no law, (Brown v. Cranberry Co., 40 Fed. Rep. petition for administration having ever been 819;) but where the complaint itself failed filed, it ought to be presumed, in favor of to allege possession, or, as in this case, al the child, either that there were no comleged adverse possession in the defendant, munity debts, or that they have been paid naturally, a dismissal followed. Such has or barred. We so rule in full view of Balch been the construction under statutes hav. V. Smith, 4 Wash. 497, 30 Pac. Rep. 648. ing the same language as that above quot 5. The land in controversy was acquired ed. Florence v. Hopkins, 46 N. Y. 182. in 1871, being conveyed to the husband by Freem. Coten. $ 450, however, shows that deed of purchase. The act of 1869, "defining the rule has been to the contrary in Massa the rights of husband and wife," declared chusetts and Maine, and closes thus: “In that property acquired by either husband truth, the limitations attending proceedings or wife, except that acquired by gift, be in partition are constantly weakening, and quest, devise, or descent should be "common" the tendency to do full and complete jus property. Section 2. It also provided tice to the parties in one action is becoming

that the husband should have the same irresistible. Wherever the question has re absolute power of disposal of the common ceptly arisen as a new question, the answer property as he had of his separate estate. to which the courts were free to give with Section 9. Respondents maintain that this out consulting decisions made at an early power to dispose was a vested right in the day, when the common-law rules were more husband, which could not be taken away by potent than at present, it has been resolved any subsequent statute. But it is not necesin favor of taking Jurisdiction whenever the sary to decide this point. The act of 1869, complainant shows himself seised of the having declared certain property "common" requisite title, whether the lands sought to property, did not make provision for the disbe partitioned are held adversely to him or posal of such property upon the death of not.” This new practice has long been in either spouse, as was done by later laws vogue in California, where Bollo v. Navar on the same subject; but we think that, ro, 33 Cal. 459, and Martin V. Walker, 58 without anything further than was contained Cal. 590, were decided; and it would seem in that act, the courts of the territory would to be the only rational practice under a have been bound to administer upon such Code, especially when our Code Proc. $ 583, property, after the death of husband or wife, is considered, that section providing as fol according to the established rules of those

states and countries where common or com. Under every consideration of the law, such a munity property laws had existed. The first state of facts left it entirely uncertain whethand cardinal of such rules was that the er the property which Capt. Hill owned before community was dissolved by the decease marriage had anything to do with earning him of either spouse; next the right of disposal anything in 1871, and the presumption of the in either spouse was ended; and, third, the deed was undisturbed. property became vested by moieties in the Upon the whole case, therefore, we are survivor and the children. Therefore, upon of opinion that the court erred in dismissing the death of Mrs. Hill, in 1883, even if the the action, and that the cause should be re act of 1869 was the only law applicable to manded for an interlocutory judgment esthis land, the right of the husband to dispose tablishing appellant's title to an undivided of the whole estate terminated. And it may one-half of the tract in question, and his be further stated that the purchaser, in this right of possession as tenant in common instance, knew of the marriage relation with the respondents, and for further pro which existed between his grantor and Mrs. ceedings in the matter of the partition. So Hill, and knew, also, that the appellant was ordered. their only child.

6. Whatever objections may have been HOYT, SCOTT, and ANDERS, JJ., concur. well founded as against the sufficiency of the reply are obviated by the fact that DUNBAR, C. J., concurs in the result. this was an equity cause, and that upon the trial the respondents wholly failed to substantiate the allegations of their answer, which they claim were not met by the re

WILLSON V. NORTHERN PAC. R. CO. ply. 7. Appellant produced the deed to his

(Supreme Court of Washington.. May 20, 1893.) father, which showed on its face a convey

CARRIERS-EJECTION OF PASSENGER-DAMAGES. ance of land for a valuable consideration,

In an action for wrongful ejection from and, prima facie, the land conveyed was

a train, it appeared that plaintiff had purchased common property. Yesler V. Hochstettler,

of a connecting carrier a ticket to S., on de

fendant's road, and that defendant's ticket ex4 Wash. 349, 30 Pac. Rep. 398. The bur changer, by mistake, gave plaintiff, in exchange den, then, was upon respondents to show for her ticket, one only to M. When the train that the money paid for the land was the

reached M, the conductor offered to carry plain

tiff, without a ticket, to the end of his division, separate property of John S. Hill. The Hills

and that in the mean time he would try to were married in 1859, at which time the correct the error by telegraphing, but advised husband owned one-third of a small steam. plaintiff that it would be less trouble for her boat, worth about $2,000. In 1860 the inter

to buy a ticket to S., and that she would after

wards get her money back when the facts could est in the steamer was exchanged for 50,000

be ascertained. Plaintiff not having sufficient feet of lumber, worth about $1,250. The money to buy the ticket, a fellow passenger oflumber was sold, and $800 of the money de

fered to loan her the amount. She refused to

accept such offer, or to ride to the end of the rived therefrom was used to buy a farm

division without a ticket, but asked the con. in King county. In 1866 the farm was sold

ductor to put her off the train. The conductor for a cash payment of $900, and a credit said, “Come on, then," and walked out, folwhich was never collected. This $900 was

lowed by plaintiff. Held, that plaintiff was en

titled to no more than nominal damages, aside perhaps used to pay part of the cost of a

from the cost of her ticket from M. to s. Per steamboat called the “Gem," the whole cost Stiles and Hoyt, JJ., dissenting. of which was between three and four thousand dollars. The testimony of Hill, as to

Dissenting opinion. For majority opinion, where he got the balance of the money paid

see 32 Pac. Rep. 468. for the boat, was that "he didn't know; he expected he made it somewhere." He owned STILES, J. I dissent. With the law of the Gem until 1872, and from the time he this case, as laid down by the majority of bought her, about 1866, until 1872, he operat the court, I have no controversy. The weight ed her on Puget sound, himself acting as cap of authority in such cases is that where a tain. Over and above the operating ex common carrier, by mistake, gives a passenpenses, he received about $100 a month for ger a ticket short of the destination for his labor and the earnings of the boat; and which he has paid for transportation, the ac he testified that the money he paid for this land must have been money acquired from failure to perform what was its duty as a his use and operation of the Gem, as he carrier; and it is also well established that, was then in no other business. But, again, where there are circumstances such as would he said that in the years in which he was cause inconvenience, distress, or mortification not steamboating-1860 to 1866-he made to the passenger, the measure of damages in. money right along in other business; that he cludes compensation therefor. But I deny never kept any account of any moneys made that this case furnishes any facts sufficient in any transaction; and that he could not to justify the verdict rendered, or even the tell whether his money came from his steam judgment entered, upon any theory of comer, or whether it was money made before. pensation. The evidence shows that the mis

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take was not discovered until the train had passed west of Helena, between which place and Missoula the distance is about 100 miles. As soon as the conductor learned of respoudent's claim, he, of his own motion, telegraphed to St. Paul, with a view of having the error corrected. While awaiting the reply, the respondent rode comfortably along in the sleeping car, and was in the dining car when the train reached Missoula, and the conductor received his answer from St. Paul, and read it to her. This answer said, "She will have to purchase another ticket to Seattle, and take receipt, and take matter up with selling agent;" and it left the conductor no alternative in the line of his duty, which he proceeded to perform in a gentlemanly and entire friendly manner. He, upon his own responsibility, offered to carry her to Hope, Idabo, 173 miles beyond Missoula, and where his division ended, without a ticket, because, in the mean time, he expected, by telegraph. ing again to St. Paul, to be able to straighten the matter out; but he advised her that Hope would be reached about 3 o'clock in the morning, and that it would be less trouble to her if she bought a ticket from Missoula, and afterwards got her money back. The talk about the matter took some 15 minutes, during which the train was held to await her decision. But other passengers’ advice prevailed, by holding out the idea of damages, and she determined to stand upon her legal rights, and be "put off.” Now, it is perfectly idle to say that this young lady was ever put off the train. She had been told she could continue her journey at least as far as Hope, and the train was standing at Missoula. But she determined not to go on, and, in order to make out the necessary case of ejection from the car, was compelled to ask the conductor to put her off, which he obligingly did, by saying, “Come on, then," and himself walking out. She followed, without wraps or baggage, which she left in her seat; and when she had reached the platform the gentleman who afterwards bought her ticket said, “Well, have you put her off?” to which the conductor pleasantly answered, “Yes." That is absolutely all there was of it, and constitutes the sole basis for this extraordinary recovery. As to the elements of damage, it is said that she suffered from the apprehension that she might have to leave the train, that she was under the imputation of having told an untruth about her ticket, that she had to step out of the car, and that she was humiliated by having to accept a loan from a stranger. As to the first matter, her disturbance of mind could not have been very severe, and it certainly continued less than half an hour. Concerning her veracity, there is no evidence whatever that anybody doubted it. The conductor believed her, and said so, and proved it by offering to carry

her nearly 200 miles west of Missoula, at the risk of having to pay her fare himself; and she says herself that all the other passengers believed her, and sympathized with her, and one of them, a perfect stranger, voluntarily paid upwards of $30 for her account. She need not have stepped out of the car at all, for, as was held in Railroad Co. v. Griffin, 68 ni. 499, cited above, her cause of action was completed by the requirement to pay fare a second time. She left the car solely for the purpose of perfecting her right to substantial damages, fearing that the technical wrong that had been done to her in taking away her ticket, and returning the short check, would not sustain a suit, unless she actually left the car. Doubtless, her mind and those of her advisers would have been made easier if the conductor could have been Induced to put his hand upon her, however formally, during the process of ejection. The last item, the acceptance of the loan from Mr. Adams, is unworthy of consideration. She was not compelled to do so, and no such thing was ever contemplated in the contract. She could have ridden on to Hope, and probably, in the time it took to go there, the conductor could have had his order to carry her through to Seattle. The loan was simply another means of making up a case. Technically, nominal damages over the cost of the ticket from Missoula to Seattle, $30.30, should have been allowed, perhaps; but the jury, under a general instruction that they could find damages for “injury to her feelings for the indignity suffered, and for humiliation, for disgrace, and for wounded pride," without any fact upon which to base a finding of even a sentimental injury, and disregarding the law as laid down by the court,-that compensation only could be recovered, -assessed the damages at an outrageously punitive sum, a very substantial part of which is still permitted to stand. I see no reason why railroad companies should be subjected to such penalties for unintentional mistakes, and in my judgment it is idle to say that the submission of the case to a jury makes such an excessive judgment any the less a rank injustice. If the jury had brought in a verdict for $100, and the trial court had not interfered, I should have been willing to accept it, although not by any means admitting that injury to any such extent was suffered by re spondent. For a recent case where there was an actual injury occurring through neg. ligence of the railroad company to perform a duty, the passenger being actually put off and left, and where the supreme court of Minnesota divided a judgment of $500 in half, with evident doubt whether so much should be allowed, see Finch v. Railroad Co. 49 N. W. Rep. 329.

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HOYT, J. I concur in the abova

its business, will be held responsible for his MEEKER et al. v. JOHNSON.

acts in its name, unless it affirmatively shows

that such acts were unauthorized. (Supreme Court of Washington. May 22, 1893.)

Appeal from superior court, Clallam coun. SALE-DELIVERY AND ACCEPTANCE.

ty; James G. McClinton, Judge. A contract for the sale of hops provided for their delivery between September 20th and

Action by M. J. Carrigan against the Port October 20th, payment to be made on delivery Crescent Improvement Company on a con"and" acceptance. Held, that where the hops tract. From a judgment for plaintif, de were delivered on Saturday, October 17th, and payment was tendered on Monday following,

fendant appeals. Affirmed. before the hops were removed by the seller, the Geo. C. Hatch and Harry E. Lutz, for appeltitle passed to the purchaser, and the seller

lant. Benton Embree, for respondent. could not then rescind; since, under the contract, the purchaser could defer acceptance until October 20th. Per Stiles and Hoyt, JJ., HOYT, J. All of the errors assigned by dissenting.

appellant, excepting those relating to the evi. Dissenting opinion. For report of major-dence offered in opposition to its own claiin ity opinion, see 32 Pac. Rep. 772.

of offset, were founded upon the rulings of

the court upon objections by the appellant STILES, J., (dissenting.) I cannot but to the introduction of evidence to show that think that the court, in its opinion, has the contract sued upon, which purported to begged the whole question at issue. It cites be executed by John E. Lutz, its manager, all the cases which hold that a contract to was so executed by him by express authority pay “immediately upon demand" means rea of the board of directors, or that it had been sonable notice and time to procure money fully ratified by the action of the company. after the notice, and then proceeds to bar Before the introduction of any such testimony, the appellants of their rights under that the plaintiff had shown that the contract rule upon two grounds: First, they knew in question had been in fact signed in the the hops were coming; second, they signi name of the company by said Lutz as its fied that they accepted them. I said all I manager, and that said Lutz was in fact care to say upon the first point when this the acting manager of the company, har. case was here before. 28 Pac. Rep. 542. ing control of all or nearly all of its trans

As to the second point. The letter of the actions. Under these circumstances, it will contract is that payment is to be made be presumed that it was the contract of the "upon delivery and acceptance of the same corporation until the contrary is made to ap by said parties of the second part." Thus, pear. When a corporation Dames some person the acceptance by appellants was just as as its manager, and, as such, allows him in a important to the completion of the transac large measure to control all its business tion as delivery by the respondent; and transactions, it must be held responsible there can be no question, and the majority for the acts of such manager in the name do not deny, that Meeker & Co. could have of the company until it has been affirma. postponed their acceptance at will until Oc tively shown by it that, as a matter of fact, tober 20th. Under the contract they con such acts were unauthorized. This is, per trolled the situation that far, and the owner haps, an extension of the general rule, but, of the hops could do nothing but wait if in our opinion, such extension is necessary to they had chosen to say that they would not prevent great hardships being cast upon accept until that day. Now, is it not a re those who deal with corporations. The very finement of technicality to hold that because use of the word “manager," as applied to the they did not take advantage of their full officer, conveys the idea to the ordinary mind rights under the express terms of the con that to one thus named has been committed tract, and keep Johnson dancing attend the management of the affairs of the compa. ance until the last day, they lost all rights ny; and to hold that one dealing with a of every kind because they did not produce person so held out must, before the company their money "immediately upon demand ?" can be held liable for his acts, show affirma. I cannot look upon business transactions be tively that it had authorized them, would tween men in any such light, and I do not often result in great hardship. The books think the law contemplates the bestowment of many of the smaller corporations are of any such unfair advantage upon one very imperfectly kept, and from them it is party to a contract over another, and there sometimes impossible to determine as to just fore I dissent.

what authority is vested in the manager

and to require of one who deals with the HOYT, J. I concur in the above.

corporation to show affirmatively the authority thus given would often require of him something that it was next to impossible

for him to ascertain. But if we hold that CARRIGAN v. PORT CRESCENT IMP. CO. the acts of the person thus held out as man(Supreme Court of Washington. June 30, 1893.) ager are prima facie those of the company, CORPORATIONS-LIABILITY FOR ACTS OF OFFICERS.

but that such presumption can be rebutted A corporation which names one as man

by affirmative proof on its part that in fact ager, and allows him as such to largely control they were unauthorized, it will greatly sub

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serve the public interests and convenience, an assignee in place of the one named by and at the same time impose no hardship the assignor in his deed of assignment, and upon the corporation. The corporation can asked the court to fix the amount of the much better be charged with knowledge of supersedeas bond on such appeal. This the what its books show than can one deal. court refused to do, and this proceeding ing with it; and if, in fact, the act of the has been instituted to compel such action on manager has never been authorized by the the part of the court by mandamus. The company, it will be easy for it to show such general rule which requires superior courts fact, and thus overthrow the prima facie to recognize attempted appeals, and do all presumption of liability arising from his things necessary to give full effect thereto, having acted in the name of the company. is well established by the authorities, and This has been held to be the rule in many has been recognized and enforced by this of the courts when the act of the officer court. There is, however, in proceedings is authenticated by the seal of the corpora by mandamus, another rule of equally gention, but we see no reason whatever, in the eral application, fully established by the aumanner in which corporations now so large-thorities, and that is that the courts will ly transact their business, to draw any dis not compel, by their order in such proceedtinction between a contract executed by an ings, the lower court to do a vain and use officer, and authenticated by the seal of the less thing. Applying this rule to the facts corporation, and one not so authenticated. shown by the petition in this case, and it It follows that the plaintiff had made a will be seen that if, as a matter of fact, prima facie case before the offer of any of the in the opinion of this court, no appeal would evidence to which objection was made, and, lie from the order made by the superior the defendant having put in no proof tend- court, we would not compel the court below ing to rebut it, all such evidence was ab to take any steps in furtherance of the atsolutely harmless, as it could not affect ad-tempted appeal therefrom. Such steps on versely any right of the defendant.

the part of the lower court would be abso As to the exceptions growing out of the lutely useless, if in fact there could be no claim of offset set up in appellant's answer, | appeal from the order which was sought we have carefully examined all the proofs to be reversed thereby. It will therefore offered in regard thereto, and we think the become necessary for us to determine in finding of the court was abundantly war this proceeding whether or not the order in ranted by competent testimony contained in question is one from which an appeal will the record, aud, such being the case, his find. lie. If it is not, then, under the rule above ings thereon are conclusive upon us. We announced, it will follow that the applicafind no error of record which could have tion for mandamus to compel the court to affected adversely any right of the defendant, take action in pursuance of the attempted and the judgment against it must be af- appeal must be denied. Our constitution firmed.

provides that an appeal will lie to this court

from the superior court in all actions and DUNBAR, O. J., and STILES and SCOTT, proceedings. This provision has been interJJ., concur.

preted, both by the legislature and the courts, to provide for appeals only from final judgments and orders in such actions

and proceedings. It follows that if the STATE ex rel. VOTAW et al. Y. PARKER,

order in question is a final one in any acJudge.

tion or proceeding, an appeal therefrom will (Supreme Court of Washington. May 24, 1893.)

lie. What was the action or proceeding MANDAMUS TO COURT-RIGHT TO APPEAL - - FINAL

pending in the superior court? SubstanJUDGMENT

tially it was the surrender by the assignor 1. The superior court will not be required by mandamus to recognize an attempted appeal

of his property to his creditors, and everyfrom an order which is not appealable.

thing required by the statute to be done by 2. An order of the superior court appoint the superior court was incidental to the ing an assignee in insolvency in place of one

main object of the statute and of the asnamed by the assignor in his deed of assignment is not a final judgment, from which an

signor, to

the application of such appeal will lie.

property to the payment of his obligations

to all of his creditors equally. Incidental Original petition in the name of the state, at the relation of H. L. Votaw, assignee, and

to such main object, the statute has pro

vided for the choice of an assignee, first, others, for mandamus to Emmet N. Parker, judge of the superior court of Pierce coun

by the assignor himself, and, second, by the

creditors and the court; and such choice of ty. Denied.

assignee, whether made by the assignor himCarroll & Carroll and H. M. Hagerman, self, or in any other manner, is simply an for petitioners. Stevens, Seymour & Sharp- | incident to the main object of the proceed. stein, for respondent.

ing, and cannot, in our opinion, be held to

be a separate proceeding, within the meanHOYT, J. Relators sought to appeal from ing of our constitution, or the statute enan order of the superior court appointing | acted in pursuance thereof, giving this court

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