(44 Wash. 339)

LAZIER v. CADY et al. Supreme Court of Washington. Nov. 9, 1906.) 1. APPEAL-PARTY ENTITLED TO ALLEGE ERROR--DISCLAIMER OF INTEREST.

Where a defendant against whom a judgment is asked disclaims any interest in certain funds held by others, and the decree of the court deals entirely with the payment into court and disposition of such funds, an appeal by such defendant need not be considered by the Supreme Court.

[Ed. Note.--For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 934-938.]

2. EVIDENCE-ORAL EVIDENCE-WRITTEN RE

CEIPT.

A receipt reading "Received of C. $50 option money in part payment on $1,000 for L.'s interest in an option (describing it) taken by C.," and signed by L., does not contain the terms of a contract so as to preclude oral evidence that a sale of the option by L. was not intended. [Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 1829-1833.]

3. VENDOR AND PURCHASER-REQUISITES OF CONTRACT-FRAUD OF PURCHASER-INTENT OF VENDOR.

C. having taken an option on land sold a share to L. and having received and refused an offer which would have netted a profit of $12,000, told L., who was ignorant of the value of the land, that they could not net more than $1,000 profit, and advised a ratification of an option which he had given at such figures. L. assented, and received $50, his one-half of the money which C. said he had received for giving such option. L's receipt for such money read: "Received of C. $50 option money in part payment on $1,000 for L.'s interest in an option taken by C." Held, not to show a sale by L. to one claiming to have purchased his interest through such transaction.

4. SAME RIGHTS OF JOINT PURCHASERS.

A receipt alleged to be a contract for a sale of a share in a real estate option was obtained by fraud from L., the owner of such share, by C., the owner of the balance of the option. H. paid to C. $50 which he had paid L. on the transaction, and claimed to be the purchaser of the share under the alleged sale. L. brought action to recover his share of the proceeds of a subsequent sale of the option by C., and C. disclaimed any interest in the funds in controversy. Held, that II. could not object that the action was one to set aside a sale, to maintain which L. must repay to C. the $50 received by L. from C.

5. TENDER-PAYMENT INTO COURT BY INTERVENER-RECOVERY AGAINST ORIGINAL DEFENDANT JOINT PURCHASERS.

The owner of a share in a real estate option having brought action to recover his portion of the proceeds of a sale thereof, an intervener claimed to have purchased plaintiff's share in the option prior to the sale alleged by plaintiff, and paid into court what he claimed was the balance due on his purchase. Held, that plaintiff, having recovered on his claim, could not also receive the sum paid into court by the intervener.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Tender, §§ 88-91.]

Appeal from Superior Court, Pierce County; Thad Huston, Judge.

Action by F. B. Lazier against R. W. Cady and others; L. H. Higgins, intervening. From a judgment in favor of plaintiff, Cady and Higgins appeal. Affirmed in part; reversed and remanded in part.

See 86 Pac. 209.

Ellis & Fletcher, for appellant Cady. William L. Waters and Harry H. Johnston, for respondent.

RUDKIN, J. On the 20th day of January, 1906, the defendant Cady, acting for himself and the plaintiff Lazier, purchased an option on eight acres of tide land in Pierce county for the sum of $100. The option contract provided that the holder of the option might purchase the land within thirty days at $2,500 per acre or $20,000 in all, the terms of payment to be $4,900 cash at the expiration of the option, and the balance in three equal installments of $5,000 each, payable in six months, one year and two years respectively. On January 22, 1906, the plaintiff paid to the defendant Cady his one-half of the option money and took a receipt acknowledging that the plaintiff held an undivided one-half interest in the option. The plaintiff resided in the city of Seattle and the defendant. Cady in the city of Tacoma. On the morning of February 7, 1906, the defendant Cady refused a bona fide offer of $1,000 per acre for the land, and refused to sell for less than $5,000 per acre. On the afternoon of that day Cady went to Seattle and called upon the plaintiff. He informed the plaintiff that a considerable portion of the time allowed under their option had elapsed and that the prospects for the sale of the land were not good; that he had heard nothing that would lead him to believe that the land had materially increased in value; that he had just given an option on the land which would net each of them $1,000, and had received $100 on account of the option; that this option would expire at 10 o'clock on the following morning, and that he had come to Seattle to secure the plaintiff's ratification of the option, believing that this was the best they could do under the circumstances. The plaintiff had no knowledge of the offers which had already been made for the land and knew nothing of its value, and, relying upon the representations of the defendant Cady, he assented to the option which Cady claimed to have given and received $50 as his share share of the option money, taking the following receipt therefor:

"Seattle, Wash., Feb. 7, 1906. "Received of R. W. Cady Fifty dollars ($50.00) option money in part payment on One thousand ($1,000.00) dollars for F. B. Lazier's interest in an option taken by R. W. Cady on the following described land, to-wit: Eight acres in Lot One in the Northeast of the northeast of the northeast quarter of Section ten, Town. 20, North of Range 3 East.

"F. B. Lazier."

Thereafter and before the first mentioned option had expired the defendant Cady sold the land to the defendant Alexander for the sum of $35,000, or at a profit of $14,000 over and above the original purchase price and

commissions on the resale. He thereafter refused to pay to the plaintiff any portion of the profits thus received. The defendant Alexander paid the defendant Cady $13,000 of the purchase price, assumed the $15.000 in deferred payments and still retained in his hands $7,000 of the purchase price at the time this action was tried. The original complaint in the action set forth the foregoing facts in substance. The prayer of the complaint was for a judgment of $7,000 against the defendant Cady, and for an order restraining the defendant Alexander from making further payments to the defendant Cady, and requiring him to pay the residue of the money into court. The record shows no answer or other pleading on the part of the defendant Alexander. The defendant Cady answered, but inasmuch as he disclaimed any interest in the fund in court his answer need not be further considered. L. H. Higgins by leave of court intervened in the action, and in his complaint in intervention alleged that he had purchased the interest of the plaintiff in the option in controversy through the defendant Cady under the receipt above set forth for the sum of $1.000, and that he had repaid the defendant Cady the sum of $50 theretofore paid to the plaintiff on account of such sale. He tendered into court the sum of $950 as the balance due on such sale, and prayed judgment that the fund might be awarded to him. The court found the facts as set forth in the complaint, directed the defendant, Alexander, to pay the balance of $7,000 into court and directed the clerk of the court to pay to the plaintiff. not only the $7,000 paid in by Alexander, but the $950 paid in by the intervener as well. From this judgment the defendant Cady and the intervener Higgins have each appealed.

As stated above, the appellant Cady has disclaimed any interest in the fund in controversy, and his appeal will therefore not be considered. The findings of fact are fully sustained by the testimony, and we see no reason why the decree awarding the $7,000 remaining due on the tide land sale to the repondent should be disturbed. The court found that the appellant Cady misinformed the respondent as to the contents of the receipt of February 7, 1906. We do not deem it necessary to consider or decide whether the respondent should be permitted to contradict or vary the terms of the receipt under the circumstances stated, as we are clearly of opinion that the receipt itself does not preclude parol evidence of the actual agreement between the parties. Indeed, the testimony of the respondent and his witnesses as to the circumstances surrounding the giving of the receipt and the actual agreement of the parties is fully as consistent with the terms of the receipt as is the claim of the appellants. The receipt does not contain the terms of any contract nor preclude oral evidence as to the actual agreement of the

parties, and the court was fully warranted in finding that there was in fact no sale from the respondent to the intervener. The intervener further contends that this was an action to set aside a sale, and that the respondent should have tendered back the $50 received from Cady on account of the sale. Cady has disclaimed and is not here complaining. Furthermore he received his $50 back from the intervener, and if the intervener paid Cady the sum of $50 in furtherance of their common design to defraud the respondent a court of equity will not lend its aid to recover it. As between the respondent and the intervener the judgment awarding the $7.000 to the former is clearly right. The court, however, went further and awarded to the respondent the $950 which the intervener paid into court in support of his claim that he had purchased the interest of the respondent. The respondent himself never accepted the tender, and could not do so without waiving his claim to the other fund in court. The $950 fund was at all times the property of the intervener and still remains so. The respondent cites authorities holding that where money is paid in pursu ance of an illegal contract a court of equity will not aid the party who makes the payment to recover it. These cases are perhaps good law, but they have not the slightest application here. The intervener is not asking the aid of a court of equity to recover money which he has paid to another. He is simply protesting against the action of the court in awarding his money to one who has no conceivable claim thereto.

For the foregoing reasons the judgment is affirmed as to the appellant Cady, and the respondent will recover from him one-half his costs on this appeal. As to the appellant Higgins the judgment is affirmed as to the award of the $7.000, but as to the award of the $950 the judgment is reversed and the intervener will recover his costs on appeal from the respondent. The case will be remanded to the court below with directions to modify its decree as above indicated.

trial is based upon the claim that the verdict is still excessive. The testimony shows that the rspondent was seriously if not permanently injured, and the verdict, as reduced by the trial court, is not as a matter of law excessive.

Finding no reversible error in the record the judgment is affirmed.

MOUNT, C. J., and DUNBAR, FULLERTON, and HADLEY, JJ., concur.

(44 Wash. 315)

SMITH v. MUTUAL RESERVE LIFE INS.

CO.

that weighed 5 tons, you would know it would be dangerous to drive on to a bridge having already from 10 to 15 tons dead weight on it in one spot?" The appellants had the benefit of the opinion of the witness on one theory of the case, and they are in no position to complain if the respondent was accorded the benefit of a similar opinion on a different theory. Furthermore, the answer given to the question as propounded was so manifestly proper that no prejudice could result from the ruling. The appellants assign as error the refusal of the court to grant a nonsuit, the refusal to sustain a challenge to the sufficiency of the evidence, and a refusal to instruct the jury to return a verdict for the appellants. These assignments present but a single question, and may be considered together. The appellants contend that it appeared from the testimony of the respondent himself that he assumed the risk, or was guilty of contributory negligence, and several pages of his testimony are quoted to sustain this view. The respondent was not in the employ of the appellants, and, perhaps, the doctrine of assumption of risk as that term is understood in the law of master and servant has no application. But whether we consider the defense as based on the doctrine of assumption of risk, or upon the maxim, "Volenti non fit injuria" or upon contributory negligence, we do not think that the contention of the appellants can be sustained. They were using the bridge in question for a private purpose, and it was incumbent on them to see that it was, or was made reasonably safe for that purpose, and to exercise ordinary care in that regard. The respondent, on the other hand, had a right to assume that the appellants had taken proper precautions for his safety, and that the bridge was reasonably safe as a dumping place for the gravel. He did not assume the risk arising from the negligence of the appellants in failing to furnish a safe place, unless he was aware of such negligence; and for the same reason he cannot be said to have consented to the injury, unless he had knowledge of the dangerous condition of the bridge and the failure of the appellants to discharge their duty toward him. While the respondent was a bridge carpenter, and had more or less experience in the construction of bridges and more or less knowledge as to their strength and carrying capacity, yet, this was the second load he hauled on to the bridge, and it cannot be said as a matter of law that he knew or should have known with the opportunities present that the bridge was unsafe, or that the appellants were leading him into a veritable death trap. For these reasons there was no error in the rulings complained of. Error is assigned in the refusal of three requests for instructions, but an examination of the general charge of the court shows that the requests were given in substance, and this is all the law requires. The error in denying the motion for a new

INSURANCE LIFE POLICY -- PREMIUMS - NoTICE OF TIME FOR PAYMENT SUFFICIENCY.

A life policy provided that notice of the time when premiums would be due should be sent to the insured at his last post office address appearing on the books of the company. The last notice before insured's death was mailed to his address appearing on the company's books, to which all prior notices had been sent, but the notice was not received by him on account of his absence. About five months before the mailing of the notice in question, insured wrote the company from another state than that of such address, remitting an assessment, and stating that he had forgotten the number of his policy, and that he had left home. in such a hurry that he forgot to take a certain notice with him. Held, that the last notice was sufficient, as the letter did not authorize a change of his address on the company's books. and it was not incumbent on the company to send the beneficiary, the wife of insured, a notice though it knew that she was not residing at insured's address as it appeared on the company's books.

[Ed. Note.-For cases in point, see vol. 28. Cent. Dig. Insurance, §§ 908-910, 1899, 1900.] Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Mary J. Smith against the Mutual Reserve Life Insurance Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Frank C. Park, for appellant. Parsons & Parsons, for respondent.

DUNBAR, J. This is an appeal from an order of the superior court granting a new trial. At the close of the testimony, the court directed the jury to find a verdict in favor of plaintiff for the full amount sued for. Defendant moved for a new trial upon the statutory grounds. The motion was granted by a general order. The particular ground of the order is immaterial on this appeal. All the evidence is before this court and the lower court on this same evidence took the cause from the jury and ordered judgment for plaintiff, and on this same evidence granted a new trial. The discussion in the briefs and oral argument of respective counsel is upon the merits of the case. We have examined the case upon the merits, and will so decide the question at issue.

The action was upon a policy of life insurance, and was brought by the appellant, the

beneficiary in such insurance policy, who was the wife of the insured at the time the insurance was issued. The policy was issued on the 23d day of May, 1895. The insured died on July 7, 1904. The policy provided that notice should be sent, the by-laws of the company provided that notice should be sent, the laws of the state of New York provided that notice should be sent, when payments were due. There was a provision in the policy that the notice, addressed to a member or other person designated by said member, at the last post office address appearing upon the books of the association, should be deemed a sufficient notice; also provided that, in the event of the nonreceipt of a notice, it should nevertheless be a condition precedent to the continuance of the policy that a sum equal at least to the last preceding mortuary premium and dues should be paid to the association within 30 days from the first week of the month when due; also provided that notice that a mortuary premium and dues were payable to said association at the dates written on the first page of the policy, in every year, was thereby given and accepted for all purposes, and that any further or other notice was expressly waived. The post office address of the insured appearing upon the books of the company was 115 Main street, Butte, Mont., and all the prior notices had been sent to that address. The last notice was not received by the insured or the beneficiary. On April 1, 1904, the regular semiannual premium call became due upon the policy, and notice thereof was duly and regularly mailed to the insured at his Butte address, March 31, 1904. This notice was not received by the insured by reason of his having been in Florida at the time, and the payment was never made, the insured having died shortly after that time.

It is not necessary to determine many of the questions discussed in the briefs of respective counsel, notably the applicability and effect of the New York statutes, or whether the applicant was bound by the provisions in the contract in relation to the waiver of the notice, or whether the appellant had a right to rely upon, and the respondent was bound by, the respondent's custom of giving notice when payments were due. For, under the undisputed facts in this case, the respondent honestly and intelligently attempted to comply with its usual custom in that respect, by sending the usual notice to the post office address which theretofore, during the life of the policy, had been the address of the insured, the address to which all the prior notices had been sent, and the address which was incorporated in the policy itself. It does not appear that the respondent had ever been notified to change the address, and the contract provides that all notices addressed to a member at the last post office address appearing upon the books of the association shall be deemed a sufficient notice. The following correspondence is, however, relied

upon by the appellant as sufficient notice to the respondent of the insured's change of residence. In November, 1903, the mortuary call of $3.42 was made upon said policy, notice of which was mailed to insured at Butte, at his proper address. On November 28th the insured remitted $3.35 to pay said call, with a letter as follows: "Interlachen, Florida, Nov. 28, 1903. New York Mutual Reserve Fund Life Association.-Gentlemen: Please find enclosed the sum of three dollars and thirtyfive cents as extra assessment for my policy. I have forgotten the number of policy, and left home in such a hurry that I forgot to bring the notice with me. Kindly send me receipt at Interlachen, Florida. Wm. H. Fenton, D. D. S. Interlachen, Florida." On December 2d the company acknowledged said remittance by a letter as follows: "Dr. W. H. Fenton, Interlachen, Florida.-Dear Sir: I beg to acknowledge receipt of your favor of the 28th ult., enclosing a remittance of $3.35 on account of the November call, on your policy No. 189449. I write to remind you that the amount of the call, as stated in the notice, was $3.42, and your remittance was therefore short seven cents. Kindly remit the same amount in postage stamps, to complete the payment. Yours very truly, G. W. Page, Superintendent." In response to that letter the company received a letter from the insured as follows: "Interlachen, Florida, December 7, 1903. Mutual Reserve Life Insurance Company.-Gentlemen: Please find herein the seven cents that was deficient in the $3.42, a mistake by myself in remittance one week since. Respectfully, W. H. Fenton, D. D. S., Interlachen, Fla."

There was certainly no authorization in this correspondence to change the permanent address of the applicant. On the other hand, it rather conveyed the idea that the applicant had left home temporarily; and while there was considerable correspondence, the whole time from the commencement to the end of the correspondence included only nine days. We think the company would not have been justified in concluding from this correspondence that the permanent residence of the insured had changed, and was justified in addressing him in subsequent communications and notices at Butte, Mont. It would have been an exercise of only common prudence for the insured, if his permanent residence was changed, to have notified the company to that effect, and also to have left instructions at Butte, Mont., for his mail to be forwarded to him.

The appellant, the beneficiary under the terms of the policy, also insists that the company knew of her residence in Oklahoma Territory, by reason of certain correspondence between her and the company which is set forth in the record. In the first place, the company was not under obligations, in the absence of instructions, to notify any one but the insured, or to keep track of the changing residence of the beneficiary. She, being the