There was a judgment for the plaintiff for $1,046.50. The defendants have appealed.

The case was tried to the court, and the recovery was had on the basis of seventy cents per day without abatement for Sundays or inclement weather. The trial of the case developed that the respondent delivered the mare to his brother, A. T. Van de Vanter, in his lifetime, on the promise of the latter "that he would do what was right." The promise was communicated to the respondent by a third party who was acting for A. T. Van de Vanter. The mare was delivered on May 20, 1904, kept by the deceased until his death in September, 1907, and thereafter retained by his estate until June 24, 1908. She was three years old at the time of the delivery, and only partially broken, according to the testimony of the respondent, and wholly unbroken if we accept the testimony of the executrix.

There is no evidence as to the value of the mare, other than the assumption of counsel upon the one side that she is worth $150 or $200, and the assumption of opposing counsel that she is worth $500. The respondent, however, states that she is a "registered standard-bred, thoroughbred mare," a breeding wholly unknown to the writer. The testimony as to the value of the use of a horse broken, fed, and cared for by the user where the use is continued for so long a period of time throws little light on the case. One of the respondent's witnesses, a liveryman, said that he rented horses for five months at the rate of sixty to seventy-five cents per day, but that the value depends a great deal upon the conditions and circumstances of the case; that sixty or seventy cents a day would not be reasonable unless "the horse earned it; worked right along," and that he did not know of a case like this. Another of the respondent's witnesses said that he would not take a horse at all under the conditions present in this case. A witness for the appellants stated that he would want something for his services for breaking and caring for a horse under similar conditions. No claim is made that the

Opinion Per GoSE, J.

[58 Wash. mare was used for other than ordinary purposes, and the record leaves the character and extent of the use of the mare largely to conjecture.

It may be gathered, however, from all the testimony, that the circumstances are so unusual, so aside from the ordinary experience and observation, that any estimate of compensation must be based largely upon conjecture or mere arbitrary assumption. It would, however, be doing violence to reason and common sense to suppose that the respondent expected to receive, or that the deceased expected to pay, any such sum as the learned trial court allowed. If the deceased or his estate had converted the mare, or if she had been killed or lost through their negligence, the maximum recovery would be the value of the mare at the time and place of conversion or loss, with legal interest. The relation of the parties was such as to make it certain that the respondent did not intend to charge, and the brother did not intend to pay, livery rates. Neither party was engaged in the livery business. It would be absurd to presume that the deceased would have received, broken, and retained the mare had he supposed that livery rates would be exacted. However, the estate is liable for the reasonable value of the use of the mare for ordinary purposes. With such aid as we can gather from the testimony, our conclusion is that $400 is ample and adequate compensation. However distinguished the lineage of the animal may be, we do not think for ordinary use she could reasonably have earned a larger sum during the period involved in the suit.

The appellants urge that the promise of A. T. Van de Vanter "that he would do what was right" did not import an agreement to pay in money. We think the rule is that payment must be made in money unless a different medium of value or exchange is expressed. However, if the agreement be construed as an engagement to pay in something other than money, the law will award a money compensation for a breach of the agreement. There is no claim made of a will

ingness on the part of the appellants to render any compensa

tion.

The judgment will be reversed, with directions to enter a new judgment for $400. The appellants will recover costs. RUDKIN, C. J., FULLERTON, and CHADWICK, JJ., concur.

[No. 8456. Department Two. March 26, 1910.] THE STATE OF WASHINGTON, Respondent, v. FRED PEACOCK, Appellant.1

HOMICIDE-EVIDENCE-DYING DECLARATION. A dying declaration made December 10th does not identify with sufficient certainty a prior written statement signed and sworn to December 3d, at a time when deceased was seriously ill but not under a sense of impending death, where, a few hours before death, the deceased, in answer to questions, stated that the "statements made to Mr. S. (the notary) a week ago today" were true; and the same is inadmissible although the statement of December 10th was made under a sense of impending death, in view of the rule that dying declarations must be received with great caution.

EVIDENCE-HYPOTHETICAL QUESTIONS-DISCRETION. It may not be an abuse of discretion to permit physicians to answer hypothetical questions although some of the facts assumed are based upon meager evidence.

Error cannot be

APPEAL REVIEW INSTRUCTIONS-REQUESTS. based upon the refusal to give certain instructions where no request therefor was made.

Appeal from a judgment of the superior court for Wahkiakum county, Rice, J., entered April 10, 1909, upon a trial and conviction of manslaughter. Reversed.

J. Bruce Polwarth, John Manning, McAllister & Upton, and B. E. Leonard, for appellant.

Frank Oleson and William Stuart, for respondent. 'Reported in 107 Pac. 1022.

Opinion Per PARKER, J.

[58 Wash.

PARKER, J.-The defendant, a practicing physician, is accused of the crime of manslaughter. The facts charged against him are, in substance, that on the 27th day of November, 1908, he unlawfully employed an instrument on the person of Madeline Longtain, she being then pregnant, with intent to thereby produce a miscarriage, the same not being necessary to preserve her life, and did then and there produce a miscarriage upon the person of Madeline Longtain, and by said operation and miscarriage he inflicted upon her person mortal injuries from which she died on the 10th day of December, 1908. Upon a plea of not guilty a trial was had, resulting in a verdict of guilty against the defendant. His motion for a new trial being overruled, judgment and sentence was entered accordingly, and an appeal taken therefrom to this court.

The principal question necessary for us to notice upon this appeal is the alleged error of the trial court in admitting in evidence the dying declarations of Madeline Longtain. The facts upon which this question must be determined are as follows: On December 3, 1908, the deceased made certain statements relating to the treatment of and operations performed upon her by the defendant at and prior to the time charged. These statements were made in answer to questions asked her by E. S. Snelling, and were at the time written down in shorthand by a stenographer, reduced to typewriting, covering some six pages of ordinary typewritten matter, signed by deceased, and sworn to before a notary public.

While these statements were made at a time when the deceased was seriously ill, the evidence in the record falls far short of showing that they were made under a sense of impending death. Learned counsel for the state do not seriously contend that they were so made, or that they would be admissible as dying declarations, standing alone; but it is contended that they were later reaffirmed under such circumstances as to give them all the force of dying declarations and render them admissible in evidence as such. The alleged re

Mar. 1910]

Opinion Per PARKER, J.

affirmance of these statements occurred as follows: On the night of December 9th the deceased said to her nurse, in reply to a question, “I don't feel very good. I think I am going to die." The next day, December 10th, at about 11:00 o'clock a. m., Mr. Oleson, the prosecuting attorney, went to the room of the deceased with a stenographer, evidently for the purpose of procuring a dying declaration. At that time the deceased was "dozing," as a witness expressed it, and it was concluded they would return to procure her statement at 1:30 in the afternoon. At that time Mr. Oleson and the stenographer returned, when he asked, and was answered by the deceased, as follows:

A.

"Q. How do you feel Madeline? A. Pretty bad. I think I am going to die. Q. Do you think you are going to die, Madeline, don't you think you are going to get well? No, I don't think I am going to get well. Q. Madeline, are the statements you made to Mr. Snelling a week ago today true? A. Yes, they are true."

There was no reference to any prior statements made by the deceased other than that indicated in this last question and answer. The written statements she had signed and sworn to on December 3 were not produced or shown to her, nor were they referred to as statements which had been signed and sworn to by her, nor was the subject-matter of the statements mentioned in the question or answer. She died on December 10th, a few hours after making this last state

ment.

It may be conceded that the statement made on December 10th was made under a sense of impending death, and so far as the showing in that regard is concerned it would be admissible as a dying declaration, but it will be noticed that this last statement is meaningless except as a reaffirmance of prior statements. Upon the theory that the statements of December 3d were sufficiently identified and reaffirmed by that of December 10th to make them a part of her declaration of December 10th, the learned trial court admitted a part of