* * pany; that the city was charged with knowl- of as shall not be assessed upon property edge of that fact; that property abutting up-benefited shall be paid from the general fund on Cleveland avenue was included in the dis- of such city or town. While the trict; that there was a street car line upon view we have suggested is negatively stated that avenue; that the cost of appropriating in the language quoted, we think its meaning the portion of lot 1 extending into Howard is reasonably clear. In speaking of the constreet was $1,000; that at least one-half of clusiveness of such a determination by a the balance of the cost of the improvement, municipality, in Powell v. City of Walla Walviz., $2,338, was of direct benefit to the la, 117 Pac. 389, we said: "Whether or not Washington Water Power Company; and that the cost of the improvement shall be borne all the property in the assessment district wholly by the property benefited, wholly by lying north of the alley between Buckeye the public at large, or in part by the property avenue and Cleveland avenue, being contig benefited and in part by the public at large, uous to another street car line, is not bene-are questions solely within the jurisdiction fited by the improvement. The judgment directed the board to recast the roll so as to exclude all property lying north of the alley between Buckeye avenue and Cleveland ave-announced in Northern Pacific Ry. Co. v. Senue, and to assess $2,338 to the city. The appeal presents two questions only: (1) Did the court err in directing the board to assess the city; and (2) did it err in directing it to exclude the property mentioned? [1] Upon the first proposition the court was clearly in error. The board found, as we have seen, that no part of the cost of the improvement should be borne by the city. Two of the commissioners testified upon the hearing that the city was not benefited, and there is no testimony to the contrary. The court took the view that, because the city knew that the improvement would benefit the Washington Water Power Company, and that its franchise could not be assessed, the city should bear a part of the burden, because it failed to require that company to agree in advance of the appropriation to pay a part of the cost of the improvement. In other words, it in effect held that the city should be penalized for its negligence. This is not the law. The city, like a private owner, can only be assessed for an improvement where it is especially benefited. Rem. & Bal. Code, § 7790; In re City of Seattle, 119 Pac. 852. In that case the court said: "It will be obvious to any one who reads the special assessment statutes that it was the intent of the Legislature to permit the assessment of only such property as was specially benefited (section 7790), and that general benefits could not be made the basis of a levy." [2, 3] Moreover, neither the commissioners nor the court had the power to direct that any part of the cost of the improvement should be borne by the city. The city itself had determined that question. As we have seen, the ordinance provided that the cost and expense of the improvement should be paid "wholly by special assessment upon the property benefited." A reference to Rem. & Bal. Code, § 7785, discloses that the language just quoted means private property. The language there is: "When the ordinance under which said improvement is ordered to be made shall not provide that such improvement shall be made wholly by special assessment upon property benefited, the whole amount of such damage and costs, or such part there of the municipal officers to determine, and the courts have no power to control their discretion in that regard." The same rule is attle, 46 Wash. 674, 91 Pac. 244, 12 L. R. A. (N. S.) 126, 123 Am. St. Rep. 955, and is suggested in Re City of Seattle, 119 Pac. 852. The correctness of this view is made certain by the language used in the first proviso to Rem. & Bal. Code, § 7790 (Laws 1909, p. 724). It is as follows: "Provided, that the legislative body of the city may in the ordinance initiating any such improvement establish an assessment district and said district when so established shall be deemed to include all the lands or other property especially benefited by the proposed improvement, and the limits of said district when so fixed shall be binding and conclusive on the said commissioners." The clear inference from the language used in the two sections (7785 and 7790) is that the commissioners may establish the district and assess the property especially benefited, including the city, to the extent only that the city itself has not exercised the powers conferred upon it. We are not here concerned with the power of the court to direct that a portion of the cost of the improvement be made a charge against the city, when that question has been left open to the commissioners and they have or have not put a part of the burden on the city. This question was before the court in the following cases: In re Pike Street, 42 Wash. 551, 85 Pac. 45; Spokane v. Gilbert, 61 Wash. 361, 112 Pac. 380; In re Westlake Avenue, 40 Wash. 144, 82 Pac. 279 [4] We deem it proper, however, to say that the court cannot, upon the filing of the report of the commissioners, direct that the district be made either greater or less, or take any action therein other than to confirm the report, unless and until its correctness has been challenged by a party in interest owning property within the district, and then it must, as in other cases, keep within the issues raised by the objections. Rem. & Bal. Code, $$ 7795, 7796. [5] The franchise of the Washington Water Power Company is not assessable. In re Third Avenue, 54 Wash. 460, 193 Pac. S07. The duty of the commissioners, therefore, was to establish an assessment district, and Refusal to allow plaintiff to introduce copies of letters written by it to defendant is proper, in the absence of attempt to procure production of the originals. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 605-637; Dec. Dig. § 183.*] PAYMENT (§ 7*)-TIME FOR PAYMENT-CON DITION. assess property especially benefited and le- 13. EVIDENCE (§ 183*)-COPIES OF LETTERSATTEMPT TO PROCURE ORIGINALS. gally assessable. The fact that the improvement is a benefit to the Washington Water Power Company, in that it enabled it to make its double track continuous along Howard street, and in that it reduced the curve of the track at the intersection of Howard street and Maxwell avenue, does not show that the prop-4. erty accessible to the Howard street car line is not benefited. Indeed, it may be said that whatever contributes to the efficiency of the company's service or makes the operation of its cars safer is an especial benefit to the property in the district. Speaking to a like question in Re Harvard Avenue North, 47 Wash. 535, 92 Pac. 410, we said: “The improvement, it is true, may afford the railway company more convenient facilities for the extension and construction of its line; but such fact does not establish that benefit does not accrue to the property in the district. The mere fact that a street is so improved that a street railway seeks to extend its line thereon may well be considered as an element of special benefit to the neighboring property." The discussion of the first question practically disposes of the second. The commissioners testified that the property within the assessment district was benefited by the improvement, in that the double track within the two blocks, by making the service more efficient, benefited the property. The fact that the property excluded by the court fronts upon a street having a car line goes to the amount and not to the fact of the benefit. The Howard street car line is accessible from this property. There is nothing in the record to indicate that the board acted arbitrarily. In re City of Everett, 61 Wash. 493, 112 Pac. 658. The judgment is reversed, with directions to confirm the report of the board of eminent domain commissioners. Plaintiff, the owner of a claim against defendant, having induced defendant to allow it to exchange an automobile owned by him for land, which was conveyed to defendant, by an agreement that said claim should not be paid "until and unless" defendant was able to and did sell the land for "at least $2,000," and that, unless it could be sold for "at least" that sum, "the said exchange should be in full settlement, satisfaction and discharge of the claim." payment of the claim is conditioned wholly and finally on such alternative; so that defendant having been unable to so sell the land, and still having it, recovery cannot be had of him, plaintiff's agreement having sufficient consideration, whether or not he got anything out of the trade. [Ed. Note. For other cases, see Payment, Dec. Dig. & 7.*] Department 1. Appeal from Superior Court, King County; R. W. Prigmore, Judge. Action by the Seattle Automobile Company against F. S. Stimson. Judgment for defendant. Plaintiff appeals. Affirmed. J. L. Waller, for appellant. Chas. F. Munday, for respondent. balance due upon an account for goods sold GOSE, J. This is a suit to recover the and delivered by the plaintiff to defendant. The alleged balance due is $1,013.95. A judgment was entered in favor of the plaintiff for $33.50, and it has appealed. It is admitted that between the 9th day of January, 1907, and the 19th day of August, 1908, the appellant sold and delivered bile supplies of the value of $16,574.15, and to the respondent automobiles and automo that the respondent paid thereon $15,500.20. The contention of the respondent is that his DUNBAR, C. J.. and FULLERTON, PAR- obligation to pay the balance of the account KER, and MOUNT, JJ., concur. SEATTLE AUTOMOBILE CO. v. STIMSON. (Supreme Court of Washington. Jan. 10, 1912.) 1. APPEAL AND ERROR ($ 273*)-EXCEPTIONS TO FINDINGS SUFFICIENCY-REVIEW. A general exception to the findings of fact as contrary to the evidence is insufficient, where there are several separate findings, and some of them are admittedly correct. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1620-1630; Dec. Dig. § 273;* Trial, Court. Dig. § 965.] in excess of the judgment was postponed in the manner and form stated in the findings of the court hereafter set forth. [1] The respondent has moved to strike the statement of facts because of the insufficiency of the exceptions. The court made four findings of fact, separately numbered and stated. The exception to the findings is in the following language: "The plaintiff herein excepts to the findings of fact entered in the cause for the reason that the same are contrary to the evidence in the case." The appellant submitted seven findings, which were also separately numbered, and which were refused by the court. It reserved a 2. WITNESSES (§ 240*)—EXAMINATION-LEAD-like general exception to the refusal of the ING QUESTIONS. Allowing a leading question is in the sound discretion of the trial court. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 795; Dec. Dig. § 240.*] court to make these findings. Such an ex ception has been held insufficient in a uniform line of decisions of this court. Boom Company v. Railway Company, 57 Wash. 693, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 107 Pac. 848; Yakima Grocery Co. v. Benoit, 56 Wash. 208, 105 Pac. 476; Fender v. McDonald, 54 Wash. 130, 102 Pac. 1026; Horrell v. California, etc., Ass'n, 40 Wash. 531, 82 Pac. 889; Smith v. Glenn, 40 Wash. 262, 82 Pac. 605; Bringgold v. Bringgold, 40 Wash. 121, 82 Pac. 179; Lilly v. Eklund, 37 Wash. 532, 79 Pac. 1107; Peters v. Lewis, 33 Wash. 617, 74 Pac. 815; Payette v. Willis, 23 Wash. 299, 63 Pac. 254. There being no specific exceptions to the findings and some of them being admittedly correct, the exceptions were insufficient. The motion to strike the statement will be denied, but the objection to its consideration will be sustained excepting as to the rulings of the court in admitting and excluding evidence. Lilly v. Eklund, supra. [2] It is first suggested that the court erred in permitting the respondent's counsel to ask a leading question. If the question was leading, which may well be doubted, the matter was within the sound discretion of the court. [3] The court refused to admit in evidence copies of certain letters written by the appellant to the respondent. This is assigned as error. The ruling was correct, as there had been no attempt to procure the production of the original letters, [4] The appellant's counsel propounded the following question to one of his witnesses: "Now, what did the company [meaning the appellant] get out of that Stimson deal?" An objection to the materiality of the question was sustained. The ruling is assigned as error. The point is without merit. As we shall see later, an answer would not have changed the result. The court found that the appellant, a corporation, was engaged in the business of buying, selling, dealing in, and storing new and secondhand automobiles and automobile supplies, and dealing in and doing all things pertaining to and usually done in and about the business of a garage and automobile agency; that between the dates heretofore stated it sold its goods to the respondent, and received payments in the sums respectively stated. It further found: "That on, to wit, the 10th day of August, 1908, prior to the commencement of this action, the defendant, being then the owner of a secondhand automobile, made and entered into an oral agreement with the plaintiff, who had said automobile for sale, under and by the terms of which agreement the said plaintiff made an exchange of said automobile for a tract of land, which said tract of land was conveyed to this defendant and accepted by him in exchange for said automobile upon and subject to the express condition and agreement between the defendant and the plaintiff that the bill which the said plaintiff had against the defendant at that time amounting to $980.45 should not be presented for payment nor paid until and unless this defendant was able to and did sell said land for the sum of at least $2,000; that since receiving a deed to said land said defendant has used his best endeavors to sell said land, and has used his best endeavors in various ways to dispose of the same for said sum of $2,000, but has not been able to sell said land or to dispose of the same for said sum, or any other sum; that said land is not worth as much as $2,000, and cannot be sold or disposed of for that sum; that it was understood and agreed at the time of the said transaction and the making of said exchange between the plaintiff and this defendant, and it was a part of said agreement that unless said land could be sold or disposed of for at least $2,000, the said exchange should be in full settlement, satisfaction, and discharge of the claim set up in the amended complaint herein," except the sum of $33.50, for which the appellant was entitled to a judgment under the admissions in the pleadings. The writer has italicized the words in the finding quoted. The appellant further contends that the findings of the court did not warrant the judgment. The precise point made is that where there is a debt due, and it is agreed that it shall be paid upon the happening of a future event and the event does not happen, the law implies a promise to pay within a reasonable time. The following authorities are relied upon as upholding this view: Williston v. Perkins, 51 Cal. 554; Chadwick v. Hopkins, 4 Wyo. 379, 34 Pac. 899, 62 Am. St. Rep. 38; Randall v. Johnson, 59 Miss. 317, 42 Am. Rep. 365; Sears v. Wright, 24 Me. 278; Nunez v. Dautel, 19 Wall. 560, 22 L. Ed. 161; Busby v. Century Gold Min. Co., 27 Utah, 231, 75 Pac. 725; Crooker V. Holmes, 65 Me. 195, 20 Am. Rep. 687; Noland v. Bull, 24 Or. 479, 33 Pac. 983; Page v. Cook, 164 Mass. 116, 41 N. E. 115, 28 L. R. A. 759, 49 Am. St. Rep. 449; Works v. Hershey, 35 Iowa, 340; Capron v. Capron, 44 Vt. 410. In the Williston Case certificates were given by the defendant which recited that the holders were entitled to receive a stated sum of money when a certain schooner in course of construction should be sold. Suit was brought upon the certificates before the vessel was sold. The court said that the defendants were entitled only to a reasonable time in which to finish and sell the schooner. In the Chadwick Case the defense interposed was that payment of the plaintiff's demand was to be made "as soon and fast as they [the defendants] were able financially to do so without sacrificing their interest in or the property of said North Crow Land & Cattle Company," and that the event named had not arrived. The court held that the agreement allowed only a reasonable time in which to make payment, and that it was not a sacrifice of property to sell it at the market price. In the Randall Case the contract was for the payment of the rigging of the vessel 90 days after its first management in one year to have more time to pay in the manufacture of the plaster bed on Stears' land." This was construed to give the maker a reasonable time in which to pay after the expiration of the year in case he failed to realize enough from the plaster bed to enable him to pay within a year. return trip. The schooner was lost at sea | year from date with the added condition that on its first voyage. The court held that the "if there is not enough realized by good money promised became due 90 days after the expiration of the period of time usually required for the return trip of the schooner. In the Sears Case the note sued upon was made payable "from the avails of the logs bought of Martin Mower, when there is a sale made," and it was held that the contract contemplated a sale of the logs within a reasonable time. In the Nunez Case the instrument sued upon was payable "as soon as the crop can be sold or the money raised from any other source." This was held to create an obligation to pay within a reasonable time. In the course of the opinion it was said: "Payment was not conditional to the extent of depending wholly and finally upon the alternatives mentioned." In the Busby Case the defendant agreed to repay the sum of money advanced "from the first Irofits of the mine." The court said that, when the money was loaned, the debt was created and became absolute, and that the event agreed upon "merely fixes the happening of such an event as a convenient time for making the payment, and in case no prof-been able to effect a sale for $2,000, or any it should be realized the law implies a promise to pay within a reasonable time." In the Crooker Case the promise was to pay the amount stated in the instrument "when I sell my place where I now live in Oxford, the instrument the court said: "The defend- It is obvious that none of these cases are applicable to the facts found by the court. There were no negative words in any of these contracts. As we have seen, the absence of such words was pointed out in the Nunez and Noland Cases. The contract here involved was that the item in controversy was not to be paid "until and unless" the property was sold for "at least $2,000," and that, unless the land could be sold for "at least" that sum, "the said exchange should be in full settlement, satisfaction, and discharge of the claim." In other words, the payment was conditional "wholly and finally" upon the alternative mentioned. spondent had used due diligence, he had not court expressly found that, although the re The other sum. It is obvious from a reading of * From what has been said, it follows that the inquiry as to what the appellant got out of the trade was immaterial. It induced the respondent to make the exchange upon certain express conditions which have not been fulfilled. The contract was based upon a sufficient consideration, the parties were competent to contract, and the contract is not immoral or illegal. It should therefore be enforced. The judgment is affirmed. 6. PROSTITUTION (8 4*)-PLACING FEMALE IN HOUSE OF PROSTITUTION EVIDENCE-ADMISSIBILITY. On a trial for placing a female in a house of prostitution, the previous chaste character of prosecutrix is not in issue, and evidence of specific instances of unchastity is inadmissible, but evidence of prior general reputation of the PARKER, MOUNT, and FULLERTON, prosecutrix for unchastity is admissible, as JJ., concur. (66 Wash. 625) STATE v. STONE. (Supreme Court of Washington. Jan. 16, 1912.) bearing on her credibility as a witness. [Ed. Note.-For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.*] 7. CRIMINAL LAW (§ 1170*)-HARMLESS ERBOR-ERRONEOUS EXCLUSION OF EVIDENCE. The error, if any, in excluding evidence, is cured by the subsequent admission of the evidence. 1. INDICTMENT AND INFORMATION ( 196*)- Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § [Ed. Note.-For other cases, see Criminal VERIFICATION-WAIVER. A verified information was amended after demurrer thereto was sustained, but was not reverified. Accused, after the jury was impaneled, interposed a second demurrer, which raised the question of the legal sufficiency of the information to charge the crime, but did not raise any objection that it was not reverified, and such objection was not raised in any other manner. Accused was arraigned and waived a reading of the information and without further objection pleaded not guilty. Held, that he waived the failure to reverify the information as required by Rem. & Bal. Code, § 2051. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 628-635; Dec. Dig. § 196.*] 1170.*] 8. PROSTITUTION (§ 1*)-PLACING FEMALE IN HOUSE OF PROSTITUTION-ELEMENTS OF OFFENSE. Actual physical restraint is not essential to the crime of placing a female in a house of prostitution, but moral restraint or persuasion is sufficient. [Ed. Note.-For other cases, see Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*] 9. PROSTITUTION (§ 4*)-PLACING FEMALE IN HOUSE OF PROSTITUTION - EVIDENCE-ADMISSIBILITY. On a trial for placing a female in a house of prostitution alleged to have been kept by accused and his wife, the testimony of the prose2. PROSTITUTION (§ 4*)-INDUCING FEMALE cutrix that accused's wife, in the absence of acTO BECOME INMATE OF HOUSE OF PROSTITU-cused, told her that, in case a policeman called TION EVIDENCE. Evidence of prosecutrix held to support a conviction of accused for placing her in a house of prostitution, provided her testimony is sufficiently corroborated, as required by Rem. & Bal. Code, § 2443. and asked what she was doing there, she should say that she was an agent for toilet articles, was competent to show the character of the house. [Ed. Note. For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.*] [Ed. Note.-For other cases, see Prostitution, 10. WITNESSES (§ 350*) - IMPEACHMENT Cent. Dig. § 4; Dec. Dig. § 4.*] 3. PROSTITUTION (§ 4*)-PLACING FEMALE IN HOUSE OF PROSTITUTION - EVIDENCE ADMISSIBILITY. Where prosecutrix testified that accused placed her in a house of prostitution conducted by accused and his wife, evidence that the house had the reputation of being a house of prostitution was admissible to corroborate the prosecutrix. PROOF OF CONVICTION OF CRIME. Under Rem. & Bal. Code, § 2290, providing that a person convicted of crime shall be a competent witness, but his conviction may be proved by his cross-examination to affect his credi bility, a witness may be compelled to admit on cross-examination that he has been convicted of disorderly conduct. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.*] [Ed. Note.-For other cases, see Prostitution, 11. PROSTITUTION (§ 4*)-PLACING FEMALE Cent. Dig. § 4; Dec. Dig. § 4.*] IN HOUSE OF PROSTITUTION-EVIDENCE-AD- 4. PROSTITUTION (§ 4*)-PLACING FEMALE IN On a trial for placing a woman in a house HOUSE OF PROSTITUTION - EVIDENCE-AD- of prostitution alleged to have been kept by acMISSIBILITY. cused and his wife, evidence that the woman The testimony of a conversation between and another inmate of the house sold beer on the prosecutrix and another inmate of the commission for accused's wife was admissible house, overheard by a witness, showing that the to show the character of the person in whose house was a house of prostitution, was admissi-custody accused placed the woman, and also ble as corroborative evidence of the testimony the character of the house. of prosecutrix. [Ed. Note. For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.*] 5. CRIMINAL LAW (§ 1137*)-EVIDENCE-OBJECTIONS-WAIVER. Where accused withdrew objections to testimony of the prosecuting witness, in the belief that the answers of the witness would be adverse to the state, he could not predicate error on the fact that the answers were adverse to him. [Ed. Note.-For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.*] 12. WITNESSES ($ 405*)-PLACING FEMALE IN HOUSE OF PROSTITUTION EVIDENCE-ADMISSIBILITY. Where the wife of one accused of placing a woman in a house of prostitution conducted by accused and his wife testified on cross-examination that the woman, while at the house, did not sell beer for her on commission, it was proper for the state to show in rebuttal that [Ed. Note.-For other cases, see Criminal the woman and another inmate sold beer on Law, Cent. Dig. §§ 3007-3010; Dec. Dig. commission for the wife, notwithstanding the 1137.*] rule that the cross-examining party is conclud For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |