erning such cases, the verdict should have been for the defendants in this case. This case would have to be reversed in any event, for the instructions complained of by appellants are palpably erroneous; and we think the exceptions taken by the appellants were as definite as the manner in which the instructions were given by the court would allow, and inasmuch as the facts testified to by the plaintiffs, in our judgment, preclude them from a recovery, the nonsuit should have been granted. The judgment is therefore reversed, and the cause remanded, with instructions to grant the nonsuit asked by the defendants. STILES, ANDERS, HOYT, and SCOTT, JJ., concur. WELLS et al. v. COLUMBIA NAT. BANK man cannot be both judge and party. No | properly instructed concerning the law govman can serve two masters. He that is intrusted with the interests of others cannot be allowed to make the business an object of interest to himself, because, from a frailty of nature, one who has the power will be too readily seized with inclination to use the opportunity for serving his own interest at the expense of those for whom he is intrusted. The danger of temptation from the facility and advantage for wrongdoing which a particular situation affords does, out of the mere necessity, work a disqualirication." It is unnecessary, however, to enlarge on this principle, or to quote authorities in support of it, as it is conceded by the respondents that such is the law governing the case, where a property owner employs a broker to sell real estate for him, and where the broker secretly takes employment from the person to whom he is going to sell real estate, and thereby serves two masters for the purpose of doubling his commission; but they insist that this case is easily distinguished from that kind of a case, and that this is simply the kind of a case where one is employed to introduce the buyer and seller, in which case it is undoubtedly the law that the middleman is entitled to receive a remuneration from both buyer and seller. Several cases are cited by respondents in support of this doctrine, but, as we understand the evidence in this case, neither the facts nor the reasoning of those authorities will apply to the case at bar. From the plaintiffs' own testimony, they did have something else to do than to introduce the buyer or seller, or bring them together. They plainly undertook with one party to buy, and with the other party to sell. Indeed, we should judge from the complaint itself that the action was brought on the theory that plaintiffs were land brokers, and were employed to sell the land in question. Certain it is that the testimony of the plaintiffs, not taking into account the testimony of the defendants, conclusively shows that they understood the fact thoroughly, that they did do something else than to introduce the buyer and seller. They submitted the land to Hawley, and submitted the price to him, and did everything they could to make a sale. They boldly testify that they did not intend to reveal the name of the purchaser until they knew whether he intended to purchase. There is nothing in the testimony to distinguish their actions from the actions of the ordinary land broker who is employed to sell, excepting that their direct employers did not own the land, which, as we have before said, does not change the principle governing this case. Defendants' motion for a nonsuit should have been granted, for there was sufficient uncontradicted testimony to show that plaintiffs were secretly in the employ of both buyer and seller, and, if the jury had been An attaching creditor may dismiss his action and release the attachment before sale without being liable to laborers who have served labor claim notices therein, under 1 Hill's Code, § 3124, allowing laborers, in all cases of attachment, execution, and similar writs, having claims against defendant, to give notice thereof at any time before actual sale of the property, declaring them preferred claims, and providing that the officer shall pay them out of the proceeds of the sale, and providing, further, in case the claims are disputed, for actions, in which case the officer is required to retain sufficient of the proceeds to await their determination. Appeal from superior court, Whatcom county; John R. Winn, Judge. Action by Edward Wells and others against the Columbia National Bank of New Whatcom. From a judgment for plaintiffs defendant appeals. Reversed. Black & Leaming, for appellant. I. N. Maxwell, for respondents. SCOTT, J. Appellant commenced a suit against one Foster, and caused a writ of attachment to be issued therein against his property, under which the sheriff seized certain of his chattels. The respondents here then served labor claim notices, under section 3124, vol. 1, of Hill's Code.' Subse 1 Hill's Code, § 3124, provides: "In cases of executions, attachments, and writs of similar nature, except for claims for labor done, any laborers who have claims against the defendant for labor done, may give notice of their claims, at any time before the actual sale of property levied on, and such officer must pay to such person, out of the proceeds of the sale, the amount each is entitled to receive for services rendered within 60 days next preceding the levy of the writ. The section further provides for an action in case a claim is disputed, and requires the officer to retain sufficient proceeds of the sale until the action is determined, the claims of laborers being declared preferred claims. quently, and before judgment, appellant dismissed said action, and the property attached was released by the sheriff, and delivered to Foster, whereupon Foster executed a chattel mortgage upon said property to appellant. The mortgage was subsequently foreclosed, and the proceeds arising from a sale of the property were applied upon the mortgage debt, but were insufficient to satisfy it. spondents brought this action against appellant to recover the amount of their several labor claims, and, obtaining judgment therefor, an appeal was taken. Re In our opinion, there was no foundation for such an action. The service of the notice provided for by the statute aforesaid does not create a lien upon the property, nor make the plaintiff in the action responsible for the amount of such labor claims. Said statute provides that such claims shall be first paid out of the proceeds of the property, when sold. No obligation rests upon the plaintiff in such action to prosecute the same to a judgment, and a sale of the property seized, even though the result of a failure to do so may be to prevent the claimants under the notices from collecting their claims therein. The statute seems to be inefficient and defective for the purpose of creating and preserving a lien, unless the property is actu ally sold. However, as to whether the court could, upon an application therefor, have taken any steps to preserve and enforce such claims in said original suit, we are not called upon to decide, for it was not asked to take any. This case is brought upon the theory that it was incumbent on the plaintiff to proceed with such suit after the service of the notices, which is not well founded. No fraud is charged against appellant, in any way, but a legal liability is urged as resting upon it to pay such labor claims, under the facts stated. Reversed. DUNBAR, C. J., and HOYT, ANDERS, and STILES, JJ., concur. WHITING MANUF'G CO. v. GEPHART. (Supreme Court of Washington. July 11, 1893.) SALE-WHAT CONSTITUTES RESCISSION-BILL OF SALE-RECORDING. 1. A sale of personal property without change of possession or record of a bill of sale, though no bill of sale is made, is void as to creditors, under Gen. St. § 1454, providing that no "bill of sale" for the transfer of property shall be valid against existing creditors where the property is left in the vendor's possession, unless "said bill of sale" be recorded; the words "bill of sale" first mentioned being equivalent to "sale." 2. Where one who has sold and delivered goods on credit takes them back in payment of the price, the transaction is not a rescission of the sale, as the sale has become complete, and the title has vested, but is a resale by the buyer to the seller, and therefore within Gen. St. § 1454 making a sale invalid as against creditors and innocent purchasers, where the vendor .etains possession, unless a bill of sale is recorded. v.34P.no.1-11 3. Even if this could be held a inere rescission, it could not be so held where part of the goods had been disposed of by the buyer, and the seller took back only the remainder, as the original sale could not be divided up into separate contracts of purchase of the different articles. Appeal from superior court, King county; Richard Osborn, Judge. Action by the Whiting Manufacturing Company against James M. Gephart, receiver, to recover possession of certain goods. A nonsuit was granted, and a judgment rendered for defendant, from which plaintiff appeals. Affirmed. The goods sought to be recovered in this case were originally sold, together with other goods, by plaintiff to one W. C. Reicheneker, a merchant, who never paid for the same. The other goods were disposed of by Reicheneker, and, on his be coming financially embarassed, he made an arrangement with plaintiff by which the goods in controversy were transferred to it in payment of its claim against him; plaintiff sending Reicheneker a credit bill, showing a full settlement of the claim, and Reicheneker charging back the amount of the claim on his books. The goods were not delivered to plaintiff, but it merely instructed Reicheneker to act as its agent, and sell the goods on its account, and remit the proceeds. Afterwards the goods were attached by other creditors of Reicheneker, and defendant was appointed receiver. It was claimed by defendant that the transaction was a sale by Reicheneker to plaintiff, and that it was void as against his other creditors, because no bill of sale was recorded, as required by Gen. St. § 1454. That section provides that "no bill of sale for the transfer of personal property shall be valid as against existing creditors or innocent purchasers where the property is left in the possession of the vendor, unless said bill of sale be recorded," etc. Wiley & Bostwick, for appellant. Frank A. Steele, for respondent. HOYT, J. The only reasonable construction of section 1454, Gen. St.,' is that thereunder no sale of personal property is valid as against existing creditors or innocent purchasers where the property is left in the possession of the vendor, unless such sale be evidenced by a memorandum in writing, and such memorandum be recorded in the auditor's office of the county in which the property is situated within 10 days after such sale shall have been made. The construction of said section contended for by the appellant would 'Gen. St. 1454, is as follows: "No bill of sale for the transfer of personal property shall be valid as against existing creditors or innocent purchasers where the property is left in the possession of the vendor, unless said bill of sale be recorded in the auditor's office of the county in which the property is situated within ten days after such sale shall be made." lead to such results as to make it the duty of courts to avoid such construction, if the language used will allow them so to do. If the construction contended for by it be adopted, a sale not evidenced by a memorandum in writing would be good without any condition whatever, while one thus evidenced would only be good upon condition that the memorandum so evidencing the sale should be recorded, as required by the statute. The language used, when taken in connection with the other provisions of the statute relating to the same subject, is not such as to lead us to believe that the legislature intended such a condition of things. The construction which we have above suggested does no violence to the language of the section, excepting that we construe the clause "no bill of sale" as though it read "no sale," which we think it is necessary that we should do in order that the evident intent of the legislature should have force. Thus construing our statute, it is evident that if the transaction between the appellant and the one to whom it originally sold the goods in controversy is to be treated as a sale, it cannot have force as against the respondent, as a representative of the creditors of such person. There was no bill of sale executed between the parties, nor was there any sufficient delivery by the seller to the purchaser. Appellant contends, however, that the transaction should not be treated as a sale, but rather as a rescission of the contract of sale originally made by the appellant. In our opinion this position is not tenable. The contract of purchase had been entirely completed by an absolute delivery of the goods, and the title thereto had vested in the purchaser. Such being the case, his title could only be divested as to creditors and bona fide purchasers by the same formalities as were necessary to constitute an original sale. Besides, it appears reasonably certain from the record that the entire contract under which the goods had been originally bought could not be rescinded, for the reason that some of such goods had been disposed of by the purchaser. There could, therefore, be no rescission unless the original transaction could be divided into as many separate contracts of purchase as there were articles purchased. This could not be done, as it is evident that a single contract of purchase covered all the goods embraced in an entire bill, and it could not be rescinded unless all of such goods were so situated that they could be returned to the seller in consideration of his release of the purchaser from the payment of the purchase price thereof. As we gather the facts from the record in this case, a certain portion of the goods billed by the appellant to the purchaser had been sold by him, and the attempt to rescind only went to those remaining on hand. When we consider these facts in connection with all the other circumstances surrounding the transaction, it seems clear to us that it was not a rescission of the former contract, but was in fact a resale of the goods to the original owner thereof. This resale might have been good as between the parties, but cannot have force so far as creditors are concerned. This was the view taken by the court below, and its judgment must be affirmed. DUNBAR, C. J., and SCOTT, ANDERS, and STILES, JJ., concur. NICHOLS et al. v. OPPERMANN et al. (Supreme Court of Washington. July 11, 1893.) PAROL EVIDENCE-EXCHANGE OF LANDS. In a suit for specific performance of an exchange of lands, it appeared that deeds had been prepared by the parties, and left with a third person, to be delivered in case defendants should approve of the land to be conveyed to them, but the control of the respective deeds did not pass from the grantors therein. Held, that the deeds so delivered were not escrows, and hence did not, in the absence of a valid written contract, justify the admission of testimony to show the conversations of the parties prior and leading up to the signing and deposit of the deeds. Hoyt, J., dissenting. Appeal from superior court, Pierce county; Frank Allyn, Judge. Specific performance by J. M. Nichols and L. E. Handley against Albert Oppermann and others. From a judgment for defendants, plaintiffs appeal. Affirmed. Taylor & McKay, for appellants. Doolittle & Fogg and John P. Cass, for respondents. SCOTT, J. Plaintiffs allege that they had entered into an agreement with certain of the defendants for an exchange of lands, and they brought this action to enforce a specific performance. Judgment was rendered for the defendants, and the plaintiffs appealed. Deeds had been prepared and signed by the respective parties, and deposited with John P. Cass, one of the defendants, who was the general legal adviser and attorney for the others. The complaint did not allege whether the contract was in writing or by parol. The answer of the defendants denied the allegations of the complaint, and, by way of affirmative defense, the answer of some of the defendants admitted that there had been negotiations between them and the plaintiffs looking to an exchange of lands, but denied that they had ever agreed upon the terms thereof. It was claimed that the deeds had been prepared as a matter of convenience, and to avoid unnecessary delay in case said defendants should agree to such exchange after an inspection of the lands to be conveyed to them by the plaintiffs. There were other conditions also connected with said negotiations, which it will be unnecessary to notice. Appellants complain of certain rulings of the court preventing them from offering testimony to show the various talks and conversations of the parties prior to, but leading up to, the signing and deposit of the deeds. The general proposition is admitted that an oral contract to convey real estate cannot be enforced, but it is claimed by appellants that in this instance the defendants waived the point that the contract was not in writing by virtue of their pleadings. We are unable to agree with appellants' contention in this regard. The contract alleged was squarely denied in the answers, and in the affirmative matter set up it was not admitted that any contract had been made. It is further contended by the appellants that the deeds were left with said John P. Cass, to be delivered to the appellants upon the satisfaction of a mortgage by them upon the land to be conveyed to defendants, and that, as the deeds were signed and deposited with a third person, parol proof might be made of the contract otherwise. The condition upon which a deed is delivered in escrow may rest in and be proved by parol. This is as far as the rule extends, and it presupposes a valid contract to convey. Our statute (volume 1, § 1422) reads: "All conveyances of real estate, or of any interest therein, and all contracts creating or evidencing any incumbrance upon real estate, shall be by deed." To constitute a deed, there must be a delivery to the grantee personally, or to some third person for him. A deposit of a deed with a third person, to be delivered to the grantee upon the happening of some future certain event, has been held sufficient to constitute the deed an escrow, and control of it in such a case has passed out of the grantor's hands. But where the happening of the event is uncertain, or where the grantor retains or reserves control over the instrument, it is not an escrow. Nor is such an undelivered deed evidence of a valid contract to convey, for it is essential that the writing required by the statute be delivered. Where there exists a previous valid contract to convey, the conditions upon which the deed is deposited may rest in and be proved by parol. In the case of Thayer v. Luce, 22 Ohio St. 62, where the deed was retained by the grantor, the terms upon which it was to be delivered were evidenced by a contract in writing, which was delivered, which, however, was not full and explicit, and the deed was resorted to for the purpose of aiding it. In the case at bar there was no written contract to convey the lands, nor had possession thereof been transferred, so as to constitute a part performance of a parol contract to render it valid. Even if a case could be found sustaining the plaintiffs' contention here,-which we very much doubt,-it is evident that the overwhelming weight of authority is against it, and the evidence offered of the various talks between the parties to prove the contract alleged was incompetent for such purpose, and was properly excluded. Bonham v. Craig, 1. Act Wash. T. Nov. 28, 1883, (Laws Wash. 1883, p. 64,) known as the "Gross Earnings Law," which provided (section 1) for the taxation of the gross earnings of railroad corporations, and exempted them from all other taxes, was not in conflict with Organic Act Wash. T., (Rev. St. U. S. § 1924,) which provided that "all taxes shall be equal and uniform, and no distinction shall be made in the assessments between different kinds of property, but the assessments shall be according to the value of the property," since such provision did not prohibit the legislature from exempting the property of any person or corporation from taxation. 2. The further provision for the taxation of the gross earnings "in lieu of any and all other taxes upon any railroad or upon the equipment, appurtenances, or appendages thereof, or upon any other property situated in this territory, belonging to the corporation owning or operating such railroad," did not limit the exemption from taxation to property actually used in the operation of railroads, but exempted all property of such corporations. 3. Under the charter of the city of Seattle, which gives the city the right to tax all property within its limits "which is by law taxable for territorial and county purposes," such city had no authority to impose taxes on the property of a railroad company which was exempted by general law from taxation for territorial and county purposes. Appeal from superior court, King county; I. J. Lichtenberg, Judge. Action by the Columbia & Puget Sound Railroad Company against A. Chilberg, treasurer and delinquent tax collector of the city of Seattle, to enjoin defendant from selling certain property belonging to plaintiff for delinquent taxes. From a judgment for plaintiff, defendant appeals. Affirmed. The taxes sought to be collected were levled on the property of plaintiff by the city of Seattle, for the year 1885, for municipal purposes. Plaintiff claimed that under Act Wash. T. November 28, 1883, (Laws Wash. 1883, p. 64,) being an act "to provide for the levy and collection of taxes upon the property of railroad companies," and known as the "Gross Earnings Law," its property was exempt from taxation for such year, and the Such, Under HOYT, J. It is contended on the part of the appellant that the act of November 28, 1883, commonly known as the "Gross Earnings Law," was void for the reason that it was in conflict with the organic law of the territory. The provision of the organic act1 which it is claimed was violated in its enactment was as follows: "All taxes shall be equal and uniform, and no distinction shall be made in the assessments between different kinds of property, but the assessments shall be according to the value of the property." If the legislation in question established a different rule of taxation as to any class of property from that by virtue of which taxes are imposed upon other classes, it was void by reason of such conflict. however, is not the necessary construction of the act in question. A more reasonable interpretation thereof is that it did not attempt to prescribe any rule of taxation. this provision in the organic act, there can be no doubt of the right of the legislative assembly to exempt the property of any person or corporation. Such has been the holding of nearly or quite all of the courts of the different states under constitutional provisions requiring assessments to be according to value as broad and full as the clause of the organic act above set out. It must therefore, under the authorities, be held that under said provision it was within the power of the legislative assembly to have entirely exempted the property of all railroad corpcrations from taxation; and, if this could be done without any consideration being received therefor, it certainly could be for what was deemed by the legislature a sufficient consideration. It must therefore be held that the act in question was not void by reason of its conflict with the provisions of the organic act. It is further claimed on the part of the appellant that, if the law is valid, it did not exempt other property of the corporation than that actually used in its operation. We think, however, that the language used is so broad that it must be held to cover all of the property of the corporations entitled to the benefits of the act. The cases cited by appellant upon this branch of the case would be decisive of the question, if the language used by the legislature had been 'Rev. St. U. S. § 1924. such as to leave room for any interpretation thereof by the courts, but the language of the act is so broad and certain that, the power of the legislature once being conceded, there is no rooin for holding otherwise than that the act exempted all of such property. The appellant further contends that even although the act is valid, and that for that reason the property was not liable to assessinent for territorial and county purposes, it should still be held that the exemption did not extend to taxes sought to be imposed by municipal corporations by virtue of the powers conferred upon them in their charters. If the charter of the city of Seattle had made use of the broad language cited in the brief of appellant, without any qualification thereof, there would be much force in this contention; but in the charter of said city the broad language by which it is given the right to impose taxes upon all property, both real and personal, within the city, is limited by this pertinent clause, “which is by law taxable for territorial and county purposes," and when so limited it affords no foundation whatever for this contention of appellant. The city derived all its power to impose taxes upon any property by virtue of the express provision of its charter, and when such express provision contained, as a part thereof, a clause which limited the property which might be so taxed to that which was by law taxable for territorial and county purposes, it follows that whenever any class of property was by law exempted from taxation for territorial and county purposes the city was, by the terms of its own charter, deprived of any power to impose taxes thereon. There is therefore no foundation for the application of the rule that a general statute will not ordinarily affect or repeal a special statute, upon which the appellant founded its argument upon this branch of the case. We feel compelled to hold that the law was valid; that it covered all the property of the corporation respondent; and that it exempted the same not only from territorial and county taxes, but that by virtue of such exemption the city of Seattle was deprived of the right to impose any taxes thereon, by the provisions of its own charter. The judgment must be affirmed. DUNBAR, 0. J., and ANDERS, SCOTT, and STILES, JJ., concur. HEILIG . CITY COUNCIL OF PUYAL 1. Two inconsistent acts were passed at the same session of the legislature, and were approved on the same day. One act contained an emergency clause, and went into effect immediately on its approval, while the other was |