DOWNS et ux. v. SEATTLE & M. RY. CO. (Supreme Court of Washington. May 20, 1893.)

EMINENT DOMAIN-ACTION BY LANDOWNER.

When, pending trespass by the landowner, the company institutes condemnation proceedings, and pays the damages assessed, it is error to refuse to dismiss the trespass case on the ground that the condemnation did not include the same damages, since the condemnation damages must have been considered as accruing at the time of entry, and interest allowed since then. Per Stiles and Hoyt, JJ., dissenting.

For majority opinion, see 32 Pac. Rep. 745.

STILES, J., (dissenting.) There is no possible gainsaying the fact that the result of the court's decision is to require the appellant to pay twice for the same thing. The allegation of the complaint is that the railroad company's agents entered upon respondent's land, and constructed ditches and grades for a distance of half a mile, and cut down and destroyed timber, and tore away 100 rods of fence. The proof showed that all of the alleged damage was done within the limits of the right of way which was lawfully appropriated and paid for long before the judgment in this case was entered, and the charge of the court to the jury carefully and explicitly limited the recovery to the actual damage done. The opinion of the court says that the record in the condemnation proceeding which was instituted and completed between the time of the verdict and the entry of judgment in this case is not here, and therefore we cannot know whether the same items of damage were covered in both cases; but we have the showing made by affidavit, on a motion to dismiss, heard months before this judg ment, that the condemnation had been had, and that $630 had been paid, as the result of it, for the taking of the land in the right of way, and for injuriously affecting the remainder of the tract; and that such a proceeding was had is not denied. It is true that the opposing affidavits of the respondent say that the condemnation proceeding did not "include any present damages by reason of any unlawful or tortious acts of the defendant," whatever that may mean; but we are bound to know, as a matter of law, at least, in the absence of some clear showing to the contrary, that the court, in the second case, mus. have considered the taking as having occurred when the entry was made, and the damages as having accrued then; so that the verdict would include interest from that time. This paid for the land at the time of the actual appropriation, before any act of interference or spoliation was committed, with all the trees and fences, and the right to destroy them, and dig up the soil, as the building of the road required. Having paid for the right to do these things, to be required to

pay again for having done them is to have to pay twice for the same thing,-an injustice which a court ought not to permit on so technical a ground. The proper proceeding in such cases, viz. where there is a question between the parties as to whether the right of way has not been granted or the trespass waived, was followed in Biles v. Railroad Co., (Wash.; decided Jan. 13, 1893,) 32 Pac. Rep. 211, where, in an action of ejectment against the railroad company, the court found for the plaintiff, and assessed his damages, and then stayed proceedings for a time sufficient to enable condemnation proceedings to be taken and concluded. Ir this case the judgment ought to be reversed and the cause dismissed, upon payment of the costs in the superior court; and, that not having been the disposition of the matter, I dissent.

HOYT, J. I concur in the above.

CITY OF SPOKANE v. WILLIAMS. (Supreme Court of Washington. May 23, 1893.)

VAGRANCY-ORDINANCE OF CITY OF SPOKANEAMENDMENT OF CHARTER-EFFECT.

The ordinance of the city of Spokane relating to vagrancy, enacted under the original charter of such city, did not cease to exist on the taking effect (February 1, 1886) of Sess. Laws 1885-86, p. 300, amending such charter, since, by section 93 of such amendatory act, all valid ordinances of such city are continued in force until they are repealed.

Appeal from superior court, Spokane county; R. B. Blake, Judge.

Frank Williams was convicted of violating an ordinance of the city of Spokane relating to vagrancy, and he appeals. Affirmed.

James L. Crotty and Hyde, Glass & Rea gan, for appellant. P. Q. Rothrock, City Atty., for respondent.

DUNBAR, C. J. The appellant was convicted of violating an ordinance of the city of Spokane concerning vagrancy, and urges here that the city ordinance is unauthorized and void, because the city was only authorized by the legislature to punish vagrants, and not to define the crime of "vagrancy." The discussion of this question is not in point here, for in this case the complaint, which was brought under the provisions of the ordinance, states facts sufficient to constitute a crime under the general law defining "va. grancy." The contention that the ordinance in question ceased to exist upon the 1st day of February, 1886, because the act' by which the charter was amended went into effect on that day, is fully answered by section 93 of the amendatory act, which provides that "all valid ordinances of the city of Spokane Falls when this act takes effect, and until the same are repealed, and all rights vested and lia1Sess. Laws Wash. T. 1885-86, p. 300.

bilities incurred when this act takes effect, shall not thereby be lost, impaired, or discharged." The testimony objected to, we think, was admissible. Finding no error, the judgment is affirmed.

ANDERS, HOYT, STILES, and SCOTT, JJ., concur.

STATE ex rel. STEARNS v. SMITH. (Supreme Court of Washington. June 14, 1893.)

MANDAMUS-JURISDICTION OF SUPREME COURT.

An ex-treasurer of the board of regents of the agricultural college is not a "state officer," within the meaning of Const. art. 4. § 4, giving the supreme court original jurisdiction in mandamus as to all state officers, the term as used in the constitution only applying to the superior officers of the state. Dunbar, C. J., dissenting.

Petition by the state on the relation of John W. Stearns, for a writ of mandamus to Andrew H. Smith, as ex-treasurer of the board of regents of the Agricultural College. An alternative writ was granted, and respondent demurred thereto. Demurrer sustained, and writ discharged.

Jas. A. Haight, Asst. Atty. Gen., for relator. Calkins & Shackleford, for respond

ent.

STILES, J. Under a showing of an emergency, the relator in this proceeding obtained from this court an alternative writ of mandamus, requiring respondent, as extreasurer of the board of regents of the Agricultural College, to turn over certain moneys alleged to be in his possession to his successor in office, the relator. The respondent has demurred to the alternative writ, on the ground that this court has no jurisdiction of the proceeding, and we find, upon a more careful examination of the constitution of the state, that he is right. Section 4, art. 4, of the constitution confers upon this court original jurisdiction in mandamus as to all "state" officers, and the only question to be determined upon the demurrer is as to whether the respondent is a "state officer," within the meaning of the section mentioned. As a general rule, the term "state officer" is only applied to those superior executive officers who constitute the heads of the executive departments of a state. The constitution does not in terms say who the state officers shall be, but it is noticeable that the third or executive article, which is devoted entirely to these superior officers of the state, closes with section 25, wherein it is first provided that no person, excepting a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office, and also that the compensation for state officers shall not be increased or diminished during the term for which they have

been elected. As used in this connection, the framers of the constitution evidently had in mind only the officers for which article 3 provided. Again, in article 5, "Of Impeachment," the second section provides that the governor and other "state" and judicial officers, except judges and justices of courts not of record, shall be liable to impeachment; and the third section provides that all officers not liable to impeachment shall be subject to removal for malfeasance in office in such manner as may be provided by law. If "state officers" should be taken to include all officers who have to do with the state's business, officers of all grades would be subject to removal by impeachment only. and there would be no use of section 3. But it is a matter of general, as well as legal, knowledge, that impeachments do not lie against any but the superior officers of a state, and that it is usually limited to the executive and to the judiciary, and this was the intention in this article. There has been much conflict of opinion among courts as to whether mandamus would lie in any case against the superior executive officers of a state, but there never has been any question but that the writ runs against the greater number of officials who, while they are doubtless officers, and may be said to be in a sense state officers, in that they transact business of a state, are always subject to control by the courts through the writ of mandamus. With these obvious meanings of the term "state officer" in every other place where it is used in the constitution, why should we give it a different meaning when our own jurisdiction is concerned? The purpose of the constitution in setting up a supreme court was to provide a court for appeals but it was deemed that cases might arise where the judicial power should be exercised against one of the chief governmental officers of the state in matters of such pub lic importance that the cases should be a once passed upon by the supreme court, and therefore this power of mandamus and que warranto was conferred. But it was never intended that this court should be a general resort in proceedings to set in motion the hundreds of minor officers with whom citzens or other officers may have business. In this case the matter can be better prose cuted in one of the superior courts than here and it should have been commenced there. The demurrer is sustained, and the writ discharged.

HOYT, SCOTT, and ANDERS, JJ., concur.

DUNBAR, C. J., (dissenting.) I am unable to agree with the majority opinion in this case. If I read the opinion correctly, the court decides that this class of officers are state officers, but not state officers in the sense in which the term is used in section 4, art. 4, of the state constitution. I do not

think the language of the constitution justifies the construction of the majority. There is no limitation expressed in the language, or any which in my judgment can be implied. The language is sweeping and comprehensive. It is that "the supreme court shall have original jurisdiction in habeas corpus and quo warranto and mandamus as to all state officers." There is no distinction made between the superior and inferior state officers, and, when it is conceded that the officer in question is a state officer, it seems to me that the argument is at an end, and that the language of the constitution is not susceptible of construction. The demurrer should be overruled.

WOLFF v. MADDEN et al. (Supreme Court of Washington. June 16, 1893.)

PARTNERSHIP-INCOMING PARTNER-LIABILITY FOR DEBTS OF OLD FIRM.

An incoming partner is not liable for the debts of the old firm where there is nothing said or done by him that can reasonably be construed into a promise to become liable therefor.

Appeal from superior court, Pierce county; Frank Allyn, Judge.

Action by Samuel Wolff against M. J. Madden and Joshua Green on an acceptance of the Midland Lumber Company, a partnership composed of M. J. Madden and Wiley J. Brown, of which firm defendant Green became a member after the date of such acceptance. Defendant Madden was not served with summons, and did not appear. From a judgment in favor of plaintiff, against defendant Green, the latter appealed. versed.

Strudivick & Peters, for appellant.

Re

DUNBAR, C, J. It is not necessary for us to notice appellant's objections to respondent's contention that the relation assumed by appellant towards the Midland Lumber Company was that of an incoming partner; for, assuming, for the purposes of this decision, that the jury correctly found upon that proposition, we are unable to find anything in the record which would bind him as an incoming partner to pay debts of the partnership which were contracted prior to his connection with the partnership. It would be a useless task for this court to discuss the question of liability by "holding out," when the undisputed testimony, as well as the conceded fact, is that, at the time the order was given the Midland Lumber Company and accepted by it, appellant had no connection whatever with said company, and

there is no proof whatever tending to show, and none offered for the purpose of showing, that the credit given was given on the strength of appellant's relation to the company, for the order was given on the company on the 4th day of December, and the appellant had no relation with the company until the 26th day of January following; and none of the witnesses who testified in relation to conversations had with appellant concerning his connection with the company fixed the time for such conversation prior to that time. Considered, then, as an incoming partner, is he responsible for pre-existing debts of the company? It is a universally cenceded doctrine that, when a new member is admitted to a firm, he becomes one of the firm for the future, and not for the past. There is not only no presumption that the incoming partner assumes pre-existing debts. but the presumption is that he does not. Without citing authorities, which are uniform on this subject, the rule seems to be briefly and concisely stated by Lindley on Partnership, (volume 1, § 208,) as follows: "In order to render an incoming partner liable to the creditors of the old firm, there must be some agreement, express or tacit, to that effect entered into between him and the creditors, and founded on some sufficient consideration. If there be any such agreement, the incoming partner will be bound by it, but his liabilities in respect of the old debts will attach by virtue of the new agreement, and not by reason of his having become a partner." In this case there is no showing of anything that was said or done by appellant that could reasonably be construed into a promise to become liable for the debt sued upon. The testimony of himself and the creditors proves no more than that appellant, as manager for the company, recognized the company's indebtedness. He could do no less than this, as it was a fact of which he was no doubt cognizant, but this is a different proposition entirely from acknowledging his personal liability; and, even if there could be any such construction placed upon his acts or words, there is no showing of, or attempt to show, any consideration for the promise. In our judgment, the testimony offered by plaintiff was utterly insufficient to sustain the judgment, and defendant's motion for a nonsuit should have been granted. With this view of the case, it is not necessary to discuss the errors alleged in the admission of testimony, and in giving and refusing instructions. The judgment is reversed, and the cause remanded to the lower court, with instructions to grant defendant's motion for a nonsuit, as prayed for.

STILES, HOYT, SCOTT, and ANDERS, JJ., concur.

PATCHEN et al. v. PARKE & LACY MACHINERY CO.

(Supreme Court of Washington. June 7, 1893.) REMARKS OF COURT-EVIDENCE-CROSS-EXAMINA

TION-APPEAL.

1. In an action for balance due on machinery delivered to defendant to sell, a remark by the judge, on motion for nonsuit, that defendant seems by his answer to admit that the machinery was of a certain value, and he does not seem to have accounted for that amount, is not in violation of Const. art. 4, § 16, prohibiting a judge from commenting on the facts in the case.

2. Defendant was properly refused permission to ask plaintiff how much he owed a person when he gave him an order on defendant for all due plaintiff on account of the machinery, as that would be immaterial on the question of how much was due plaintiff from defendant.

3. The question of whether an order given by plaintiff on defendant was an assignment of whatever sum was owing plaintiff from defendant cannot be considered on appeal, where, at the time a motion for nonsuit was made, it had not been introduced in evidence, and where defendant introduced it in connection with a receipt from the person to whom the order was given for the purpose of showing a settlement with plaintiff, and that payment in full had been made by defendant to such person of all moneys due plaintiff.

4. Though defendant's bookkeeper was merely asked to identify the signature to a receipt, still, it being offered for the purpose of showing payment in full of plaintiff's demands against defendant, plaintiff was properly allowed to cross-examine him as to the moneys he had received and paid out for and on account of plaintiff.

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by L. H. Patchen and George Patchen against the Parke & Lacy Machinery Company for balance on machinery delivered to defendant to sell. Judgment for plaintiffs. Defendant appeals. Affirmed.

Fenton, Henley & Fenton, for appellant. W. M. Ridpath and Feighan, Wells & Herman, for respondents.

SCOTT, J. The plaintiffs placed in the hands of the defendant certain machinery to be sold for them by the defendant. The proceeds over and above a sum owing by plaintiffs to defendant were to be paid to the plaintiffs. Sales of said machinery were made from time to time by the defendant, and orders were given by plaintiffs to other persons upon the defendant for various sums of money received therefrom. The last order given purports to be as follows: "Spokane, Sept. 4, 1891. The Parke & Lacy Machinery Co., Spokane-Gentlemen: Please pay O. C. Ross whatever may be due us on account in your book, in settlement of machinery account in full. Patchen Bros." Sixty-seven dollars and sixty-nine cents were paid by the defendant to said Ross upon this order, whereupon Ross delivered the order to defendant, together with a receipt for the specific sum, with the following words added: "Being the amount in full due Patchen Bros. on account of machinery as by their

order." Subsequently thereto, the plaintiffs, claiming that the defendant had not accounted for all of the moneys due them by reason of the sale of such machinery, instituted this suit, and, obtaining a judgment for $295 therein, the defendant appealed.

The first ground of error alleged is with reference to a remark made by the court in ruling upon the motion for a nonsuit made by the defendant. In denying said motion, the court said: "The defendant seems to admit in his answer that the machinery was of the value of $800, and he does not seem to have accounted for that amount." This is the language complained of. It is contended that it is a violation of the constitutional provision (section 16, art. 4) prohibiting a judge from commenting upon the facts in the case. This point is not well taken. An incidental allusion to the facts, called to the court's attention in determining a motion for nonsuit, is not error. Blue v. McCabe, (Wash.) 31 Pac. Rep. 431.

on

The second ground of error is founded upon a question asked one of the plaintiffs upcross-examination, which was: "How much were you owing Mr. Ross at the time you gave him this order you have spoken of?" This was objected to as immaterial, and the objection was sustained, and we think properly so, as we are unable to see how any question as to the indebtedness of the plaintiffs to Ross could be material in this action. It was of no consequence how much or whether or not the plaintiffs owed Ross anything at the time they gave him the order.

The third ground of error alleged is the denying of appellant's motion for a nonsuit. Appellant contends that said order given by plaintiffs to Ross was, in effect, an assignment of whatever sum was owing by the de fendant to the plaintiffs, and that it, together with Ross' receipt, showed a full payment of all liabilities from the defendant to the plaintiffs. When the motion for the nonsuit was made, said order had not been introduced in evidence. The testimony of the plaintiffs showed that $800 had been re ceived by defendant for the machinery sold, and only a portion of this amount had been accounted for. At the time the order was given to Ross, one of the plaintiffs asked the defendant's bookkeeper how much was due them, and was told that the amount was $67.69, whereupon said order was given. The testimony, as it stood at the time the motion for the nonsuit was made, was to the effect that the order had been given for this specific sum. There was no proof at that time before the court that an order had been given for all moneys due and owing the plaintiffs from the defendant, although there is some testimony to show that, at the time this order was given, it was supposed that the amount of such indebtedness was but $67.69; but the evidence, as

it then stood, showing that there was a further balance due the plaintiffs from the defendant, the motion was properly denied. The question as to the order aforesaid being an assignment was never at any time before the lower court, as appears by the record.

Said order and the receipt given by Ross were introduced for the purpose of showing a settlement with the plaintiffs, and that payment in full had been made by defendant to Ross of all moneys due the plaintiffs. The order and receipt were put in evidence by the defendant in making its case, but the court was not asked to instruct the jury that said order operated as an assignment of all moneys due the plaintiffs from the defendant, and that, consequently, the plaintiffs could not maintain their action. It was contended by the plaintiffs that the order had been altered, and was not as it was originally given. It is claimed that the words "in settlement of machinery account in full" were not contained in the order when given by the plaintiffs, and had been added without their knowledge or authority. This, of course, would have some bearing upon the question as to whether there was a settlement between the plaintiffs and defendant at the time the order was given, which was a matter for the jury to dispose of; but we agree with the appellant that those words did not materially alter the order in relation to the other question as to its being an assignment of the entire claim of the plaintiffs against the defendant; but, as that question was not raised in the lower court, it is not available here.

The next ground of error complained of is in relation to the cross-examination of one W. C. Hendrie, the defendant's managing agent, and the person with whom the agreement had been made by the plaintiffs. He was put upon the stand by defendant to prove the signature of O. C. Ross to the receipt aforesaid, purporting to be in full of all moneys due the plaintiffs, which he identified, and said receipt was offered in evidence, whereupon the court, over the objections of the defendant, permitted the plaintiffs to cross-examine said witness as to the moneys he had received from the sales of such machinery, and as to the amounts he had paid out for and on account of the plaintiffs. We think this was proper crossexamination. It is true said witness had only been asked to identify the signature of Ross to the receipt in question, but this receipt was offered for the purpose of showing payment in full of the plaintiff's demands against the defendant, and the court rightly permitted the plaintiffs to cross-examine this witness as to the moneys he had received and paid out for and on their account.

It is further contended that the court erred in permitting the plaintiffs, upon rebuttal, to introduce evidence to contradict the statements made by the witness Hendrie upon v.33P.no.19-62

his said cross-examination, on the ground that such cross-examination was improper; but, as we have held the objection not well taken, it follows that the evidence in rebuttal was permissible.

Error is claimed as to two of the instructions given by the court to the jury which were pertinent to, and founded upon, the issues as to settlement and payment. The only exception taken thereto was as follows: "The defendant, by its counsel, in open court, excepted to the giving of instructions numbered 11 and 12." No ground whatever was specified. It is now urged that said instructions were erroneous, because the point that said order operated as an assignment was ignored in them. But what we have said as to this point heretofore disposes of the question. It was not claimed or even suggested by the defendant in the exception taken, or elsewhere during the trial, that the order operated as an assignment, and the exception taken was insufficient to raise the question, under the circumstances of this case. Finding no error in the case, the judg. ment is affirmed.

ANDERS and STILES, JJ., concur.

DUNBAR, C. J., concurs in the result.

CALQUHOUN v. WELLS, FARGO & CO. (No. 1,387.)

(Supreme Court of Nevada. Sept. 16, 1893.) APPEAL-REVIEW OF EVIDENCE-INSTRUCTIONS -BAILMENT-FULFILLMENT OF CONTRACT.

1. Where there is no motion for new trial, the appellate court cannot review the evidence in the case to ascertain whether it supports the verdict. 2. An unintelligible instruction is properly refused.

3. Where the plaintiff had placed an indorsed certificate of deposit with the defendant for safe-keeping, which the defendant agreed to safely keep and deliver to him, or pay him the money due thereon, the fact of the indorsement, and the subsequent payment of the certificate to one who had wrongfully and without plaintiff's authority possessed himself of it, does not constitute a compliance with this agreement.

(Syllabus by Bigelow, J.)

Appeal from district court, Storey county; Richard Rising, Judge.

Action by E. Calquhoun against Wells, Fargo & Co. Judgment for plaintiff. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by BIGELOW, J.:

Action to recover $1,011.90, alleged to be due on a certificate of deposit issued by defendant, and for $150 subsequently deposited with it. Verdict and judgment for the plaintiff.

The following are the instructions refused by the court: (1) "The party dealing with an agent is bound to know at his peril whether the power of an agent is, and to