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Action by Mary E. IIoeschler and others against Frank H. Bascom and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Belden & Losey, for appellants. Merritt, Oswald & Merritt, for respondents.

PER CURIAM. This is an action for the reformation of a deed, for the eviction of the defendants from certain lots, for the restitution of said lots to the plaintiffs, and for the quieting of title of said lots in plaintiffs. The cause was tried by the court, and facts were found and conclusions of law made in favor of defendants, and judgment was rendered against the plaintiffs for costs. Motion is made to strike the statement of facts, and to affirm the judgment, for the reason that no exceptions were taken to any of the findings of fact or conclusions of law made by the trial court. It is not contended that all the findings of the court were erroneous; some of them were admitted by the pleadings, and some were stipulated to be correct. The record shows that no exceptions were taken, and it is the settled law of this state that, where no exceptions are taken to findings of fact, said findings are not subject to review by the appellate court, but they will be considered admitted facts. There was some contention made by the appellants in oral argument that some of the conclusions of law were not justified by the facts found. But an investigation of the record convinces us that the conclusions of law and the judgment entered were amply justified by the facts found.

The motion will be sustained, and the Judgment affirmed.

(44 Wash. 688)

STATE ex rel. LIPPINCOTT v. CITY OF SPOKANE et al.

(Supreme Court of Washington. Dec. 13, 1906.) ATTORNEY AND CLIENT-AUTHORITY OF ATTORNEY SETTLEMENT BY STIPULATION RATIFICATION.

A city having brought action to enforce the lien of certain special assessments, it was agreed by stipulation between the attorneys representing the respective parties that, on payment of a certain sum, the action should be dismissed, and the sum received in full for all liens and assessments against the property. Held, that the city, having received the money paid under an order of court based on such stipulation, could not afterwards deny the authority of the officer making the stipulation, or of the validity of the judgment under which the money was paid.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attorney and Client, §§ 154, 209.]

Appeal from Superior Court, Spokane County.

Mandamus on the relation of J. B. Lippincott against the city of Spokane and M. H. Eggleston, city treasurer. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

J. M. Geraghty and Alex. M. Winston, for appellants. P. F. Quinn, for respondent.

RUDKIN, J. This was an application for a writ of mandamus against the city of Spokane and its treasurer. The facts upon which the application was based are as follows: For some time prior to the 23d day of January, 1903, the relator was the owner of lot 1 of block 32 of Railroad addition to the city of Spokane. The city claimed liens against the property for delinquent taxes for the year 1892, for the Howard street sewer improvement, and for the Second street sewer and grade improvement, the validity of which was denied by the relator. On the above date an action was commenced in the superior court of Spokane county by the city of Spokane against the relator and others to foreclose the lien of the Second street sewer and grade assessment. On the 18th day of June, 1904, a compromise was arranged through the attorneys representing the city and the relator, whereby it was agreed that, upon the payment of the sum of $173.79 into court by the relator, the pending action should be dismissed, and that said sum should be received by the city in full payment and satisfaction of all liens and assessments against the property, and a written stipulation was prepared in conformity with this agreement. On the same date an order was entered by the court, reciting the stipulation and the payment of the $173.79 pursuant to its terms, and directing the city to cancel upon its records all taxes and assessments against the property. The city of Spokane and its treasurer have refused to cancel the taxes and assessments as directed by the court. The answer admits all the allegations of the petition, except the averment that the taxes and assessments were invalid, and alleges affirmatively that the corporation counsel of the city had no authority to enter into the stipulation or to confess the judgment as rendered. The court sustained a demurrer to this affirmative defense, and the defendants declining to plead further, a peremptory writ of mandate was directed to issue as prayed. From this order the defendants have appealed.

The appellants contend, first, that the court was without jurisdiction to cancel taxes or assessments not involved in the action in which the foregoing stipulation was filed; and, second, that the corporation counsel had no authority to enter into the stipulation, or to confess the judgment, in so far as taxes and assessments not involved in the pending action were concerned. We do not think that these defenses are available to the appellants at this time. The appellants cannot claim under the judgment, and in opposition to the judgment. They cannot accept the fruits of the stipulation, and, at the same time, deny the authority of the officer who entered into the stipulation. As soon as the city discover. ed that its corporation counsel had

promised the taxes, entered into the stipula tion, and confessed a judgment partly in its favor and partly against its interest, two courses were open to it. It might refund the money paid and move against the judgment, or it might ratify and confirm what had been done. It could not ratify in part and reject in part; and, having received the money paid under the stipulation and judgment, it is bound by its election, and will not now be heard to question either the authority of its officer or the validity of the judgment under which the money was paid and received.

There is no error in the record, and the Judgment is affirmed.

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

(44 Wash. 691)

STONE et ux. v. CREWDSON.
(Supreme Court of Washington. Dec. 13, 1906.)
APPEAL AND ERROR-REVIEW-DISCRETION OF
COURT-DIRECTION OF VERDICT.

Where, on an issue as to whether defendant's acts were the cause of plaintiff's injuries, the evidence showed that any one of many intervening acts might have caused the injury, and that the jury could not have determined the proximate cause without entering into speculation and conjecture, the action of the court in directing a verdict for defendant would not be disturbed on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4024.]

verely frightened plaintiff Irene Stone, who was then in a delicate condition, and caused her to faint away and become unconscious, and her nervous system to be greatly shocked and injured, to such an extent as to cause her to have a miscarriage shortly after. The injuries flowing from such miscarriage are set forth in the complaint. Judgment was asked for $20,000 damages. At the close of the plaintiffs' testimony, the defendant challenged the sufficiency of the evidence, on the ground that it was not sufficient to justify their recovery. This motion was sus tained, and judgment entered in favor of the defendant for costs.

We have examined the testimony in this case, and, from such testimony, including the medical expert testimony, we think the judg ment of the court must be sustained; that there is no proof that the negligent acts of the respondent were the proximate cause of the miscarriage from which the alleged injuries flowed. Without undertaking to reproduce the testimony of the doctors, who were called by the appellants, and upon whose testimony this case must be determined, it shows that any one of many intervening acts and happenings might have caused the same result. The time between the alleged cause and the actual miscarriage-33 days -was, according to the expert testimony, greatly in excess of the ordinary time in such cases; and the answers of the physicians to questions propounded to them, which were

Appeal from Superior Court, Spokane based upon the testimony, convince us that County; W. A. Haneke, Judge.

Action by John Stone and another against James Crewdson. From a judgment directed in favor of defendant, plaintiffs appeal.

Affirmed.

Richardson, Roche & Onstine, for appellants. Hamblen, Lund & Gilbert, for respondent.

the jury could not have determined the prox-
imate cause of the miscarriage without enter-
ing into the realms of speculation, conjecture,
and guesswork, and this they are not em-
powered to do, under the rule announced by
this court in Armstrong v. Town of Cosmop-
olis, 32 Wash. 110, 72 Pac. 1038, Reidhead
v. Skagit County, 33 Wash. 174, 73 Pac. 1118,
and Stratton v. Nichols Lumber Co., 39
Wash. 323, 81 Pac. 831, 109 Am. St. Rep. 881.
We are unable to discover that the court
committed any prejudicial errors in the ad-
mission or rejection of testimony.
The judgment is affirmed.

DUNBAR, J. This action was brought by the appellants, husband and wife, to recover damages on account of personal injuries alleged to have been suffered by one of the appellants, Irene Stone. The complaint alleged, in substance, the following facts: That on or about the 2d day of July, 1904, the defendant came to the home of the plaintiff Irene Stone's father and mother in the town of Medical Lake, where she was visiting, and, without any reason or cause, wrongfully, wickedly, maliciously, and brutally assaulted the plaintiff Irene Stone, and conducted himself in a boisterous, threatening, and noisy manner, violently shaking and swing-(Supreme Court of Washington. Dec. 13, 1906.)

ing his hands and his fists in and around and about the person and face of the plaintiff Irene Stone and her mother Mrs. Margaret E. Olds, and swearing and cursing at them in a very loud and boisterous manner, heaping »pprobrious epithets upon them, and calling them vile names, which are specified in the complaint; and that by such action he se

87 P.-60

MOUNT, C. J., and FULLERTON and HADLEY, J.J., concur. RUDKIN and CROW, JJ., not sitting.

(44 Wash. 693)

SCHURRA v. BUFFALO-PITTS CO.

PRINCIPAL AND AGENT-COMPENSATION OF
AGENT-EVIDENCE-SUFFICIENCY.

In an action by an agent for commissions under a contract, whereby a machine company agreed to furnish the agent as many machines as he could sell prior to a certain date, the company reserving the right to restrict the agent to such number of machines as it might be able to supply, evidence held sufficient to authorize the jury to find that the contract was

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extended beyond the date named, so as to entitle him to commissions under the contract for sales after that date.

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by C. Schurra against the BuffaloPitts Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Danson & Williams, for appellant. William E. Richardson and Lawrence Jack, for respondent.

DUNBAR, J. This action is brought to recover commissions alleged to be due respondent on sales made by the respondent while acting as the agent of the appellant. Three causes of action are set forth in the complaint, all based on a contract of agency. The contract has at its top the following words: "For Season of 1901." The first obligation of the appellant in the contract is as follows: "(1) To furnish to said party of the second part such number of engines, threshers, swinging stackers, horse powers and their appurtenances [manufactured by it, the Buffalo-Pitts Company] as the said party of the second part may be able to sell as its special agents, and in accordance with the terms stipulated herein, prior to November 1, 1901, the said party of the first part reserving to itself the right, in case it shall not be able to fill the orders of the said party of the second part, to restrict the said party of the second part to such number of machines as it may be able to supply." The complaint shows that the second and third causes of action were for commissions on sales of agricultural implements for the benefit of defendant, after the 1st of November, 1901, viz., on the 17th day of January, 1902, and it is these causes of action that are contested by the appellant here. Appellant demurred to the complaint, which demurrer was overruled, objected to the introduction of any evidence as to the sales made in 1902, and. upon respondent resting, entered a challenge to the sufficiency of the evidence, which was also overruled. The same objection was made after all the evidence had been introduced, which was overruled. In its instructions the court left the construction of the contract of agency and the matter of its duration to the jury, and the jury returned a verdict for respondent in the sum of $635. Judgment was entered thereon, and appeal is taken from such judgment.

The pertinent contention in this case is that the respondent was not entitled to recover on the contract for merchandise sold after the alleged expiration of the contract in November, 1901. This action, it may be conceded, is brought upon the contract, and it may also be conceded that, where an action is brought on an express contract, recovery cannot be had on a quantum meruit. Νο proof was attempted to be made of the reaBonable value of the services upon the trial,

but the respondent relied entirely on the stipulated compensation mentioned in the contract. If the contract had ceased to be in force by reason of the expiration of the time, then the respondent could not recover upon the second and third causes of action; if it was still in force, he could recover upon such causes of action, and the judgment is right. It will not be denied that the rule contended for by the appellant, that a contract of agency terminates with the expiration of the time set in the contract, is elementary, if no other circumstances are taken into consideration or brought to bear upon it. But a contract may be extended by the actions and agreements of parties to the contract, not incorporated in the contract itself. The appellant assigns error of the court in submitting the construction of the contract in question to the jury. Ordinarily the question of the meaning of a written contract is one of law for the court, and not for the jury. But this contract is not altogether unambiguous, and the time might be construed to be a limitation on the part of the appellant as to the machinery furnished. In any event, certain acts of the appellant were introduced in testimony, and the jury had the right to construe the contract, or to determine whether the contract was in force when the goods were sold with reference to said acts. We think the jury was justified in determining, from the testimony in this case, the letters introduced in testimony, the acceptance of the sales made by the respondent, and the appropriation by appellant of the benefit of said sales, that the contract was extended, that both parties treated the contract as extended until after these sales were made, and that the appellant ought to be bound by such extension. While, as we have indicated, the general rule is that a contract of agency ceases at the time prescribed in the agreement, yet it is equally well established that, if an agent employed at an agreed price for a certain time continues in the same employment after the expiration of the term, without any new agreement, the presumption of law is that he continues at the original rate of compensation, and that there can be no recovery upon a quantum meruit. 1 Am. & Eng. Enc. Law, p. 1161, and cases cited. It was also decided in Sines v. Superintendent of Poor, 58 Mich. 503, 25 N. W. 485, that where, under a contract for a year's services, the employé has gone on from year to year, and at the end of the year is allowed to go on without objection, a presumption arises which will warrant a jury in finding that the parties to the contract have assented to its continuing in force for another year. To the same effect are Tallon v. Grand Portage, etc., Co. (Mich.) 20 N. W. 878, and Tatterson v. Suffolk Mnfg. Co., 106 Mass. 56. This rule, we think, is a proper one, as its tendency is to insure justice.

We discover no reversible error on the part of the court in the instructions given or in the admission or rejection of testimony. The judgment is therefore affirmed.

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

RUDKIN and CROW, JJ., not sitting.

(44 Wash. 668)

ANDREWS v. UNCLE JOE DIAMOND BROKER.

(Supreme Court of Washington. Dec. 12, 1906.) 1. APPEAL-DISMISSAL-APPEAL BOND.

Where the notice of appeal and appeal bond are each dated and marked as filed July 16th, while the service date on each is July 9th, the appeal will not be dismissed on the ground that the bond was not filed within five days after service of the notice.

2. SAME.

Where an action was brought against a corporation and an individual, and no appearance was made nor issue joined by the individual, but judgment was rendered against the corporation, its appeal therefrom will not be dismissed on the ground that the action is still pending in the lower court on issues joined by the individual defendant.

3. FRAUDS, STATUTE OF-MEMORANDUM-SUF

FICIENCY.

A receipt given by a pawnbroker showing that he had received a diamond ring as security for a loan of $50 and that, if the loan were repaid within a year, $15 should be paid for the use of the money, and, if not within a year, $25 should be paid, was a sufficient memorandum within the statute of frauds.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, §§ 239-241.] 4. CONTRACTS-VALIDITY-UNILATERAL AGREE

MENT.

An agreement whereby a pawnbroker accepted a diamond ring as security for a loan of $50 and providing that the pledgor should repay $65 if the loan were paid within a year, or $75 if it were not paid within a year, was not invalid as being unilateral on account of its failure to fix the time within which the pledgor might redeem where the tender of $75 was made within a reasonable time after the expiration of a year and kept good. 5. TENDER-KEEPING TENDER GOOD.

In an action to recover a diamond ring pledged as security for a loan, it was necessary, to entitle the plaintiff to recover, to show, not only that he had tendered the amount necessary to redeem and brought it into court, but also that he had kept the tender good at all times.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Tender, §§ 55-58.]

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Jacob Andrews against the Uncle Joe Diamond Broker, a corporation, and another. From a judgment in favor of plaintiff, the defendant corporation appeals. Reversed

and remanded.

John E. Humphries and Geo. B. Cole, for appellant. E. J. Grover and Allen, Allen & Stratton, for respondent.

HADLEY, J. This is action in replevin to recover the possession of a diamond ring, or

the value thereof, and its value is alleged to be $250. Joseph Hoeslich and Uncle Joe Diamond Broker, a corporation, were made defendants. The complaint alleges that in August, 1904, the defendant Joseph Hoeslich was conducting a loan and pawnshop business in Seattle, under the name of "Uncle Joe," and otherwise known as "Uncle Joe Loan Office"; that in said month the plaintiff pawned with said Joseph Hoeslich the ring in question, of which plaintiff was the owner, and that he received thereon the sum of $50, with the understanding and agreement that the ring should be kept by said Hoeslich until said sum was repaid, it being further agreed that, if the sum was repaid within one year, then in that case plaintiff should pay $15 for the use of the money, or $65 in all, but, if redemption was not made within a year, then plaintiff was to pay $25 for the use of the money, or $75 in all. It is also alleged that said Hoeslich then delivered to plaintiff a receipt in writing, setting forth said agreement, which was numbered 9,041, and that entry thereof was made in the books of said loan office; that thereafter, on the 2d day of November, 1905, plaintiff tendered the sum of $75 to defendant Joseph Hoeslich at said loan office and demanded the return of the ring, which was refused. Further allegations are to the effect that, after the making of said pledge agreement, the said Hoeslich incorporated said loan office and business, under the name of "Uncle Joe Diamond Broker," such incorporation being simply for convenience and for the purpose of taking over and conducting the business theretofore conducted by Hoeslich; that the business was so taken over, and that, in consideration for the transfer, the corporation assumed and agreed to pay all indebtedness incurred by said Hoeslich in conducting said business, and agreed to carry out and perform all contracts as to pledged property made by him. It is alleged that plaintiff also tendered to said corporation defendant the sum of $75, and demanded the return of the ring, which was refused, and that he now tenders and pays the same into court. Issue was joined by the corporation defendant, and a trial was had before the court without a jury, resulting in a judgment against the corporation for the return of the ring to plaintiff, or, in case return thereof cannot be had, judgment is awarded to plaintiff for $250, the value of the property. This appeal is from the judgment.

A motion has been made to dismiss the appeal on the ground that no bond on appeal was filed within five days after service of the notice of appeal. The notice of appeal bears date July 16, 1906, and the file marks show that it was filed the same day. The bond was also dated and filed July 16. The service clause appended at the foot of both the notice and bond, and signed by respondent's attorney, bears date July 9th, which was seven days before the actual date of the notice and

bond. The argument is made that the service date of the notice shows that the appeal was taken on the 9th, and that, as the bond was not filed until the 16th, it was not within five days after the appeal was taken. The service date of the notice is manifestly an error, since it antedates the instrument itself. The same error appears upon the bond, and the record satisfies us that the appeal was not taken until the 16th, and the bond was both served and filed on that day, which was within time to perfect the appeal.

The motion to dismiss the appeal is urged upon the further ground that the appeal is from a judgment against one of the defendants only, and that the action is still pending in the lower court upon issues joined by the defendant Joseph Hoeslich. The record, however, shows that no appearance had been made and no issue had been joined by the defendant Hoeslich when the judgment appealed from was rendered and when the appeal was taken. Under such circumstances appellant is entitled to prosecute the appeal from the judgment. It was a final judgment and the other defendant was not a party to it. The motion to dismiss the appeal is therefore denied.

Appellant assigns errors upon the court's findings as to the facts. No verbatim report of the evidence was made at the trial, but a narrative statement of the testimony has been embodied in the statement of facts and certified by the court. The findings made by the court substantially conform to the allegations of the complaint hereinbefore set out, and we think they are sufficiently supported by the evidence. We shall, therefore, not disturb such findings as were made by the court, but we shall hereinafter refer to a material fact upon which the court made no finding.

It is assigned that the court erred in its conclusion of law. It is argued that the conclusion was erroneous for the reason that respondent cannot recover because of the statute of frauds. It is asserted that there was no agreement in writing, and that the agreement shown in evidence was not to be performed within one year. The complaint alleges that there was a written receipt given to respondent which stated the terms of the agreement. The court found that there was such, and we have said we think the evidence supported it. The objection raised on the ground of the statute of frauds is, therefore, not well taken.

It is further claimed that the contract was unilateral, and could not have been enforced by appellant, for the reason that no definite time was fixed for its performance, and that respondent was given the right to redeem at any time after one year upon payment of $75. Whatever may be said as to the time within which appellant might have enforced its lien, it at least cannot be said that the contract gave it the right to withhold possession forever if tender were made within a reasonable time.

The ring was the property of respondent. The appellant had only a possessory lien thereon, and the tender of the amount of the lien was made soon after the expiration of a year. The contract was definite that redemption could be made within a year upon payment of $65, and after that time for $75. The tender of the latter sum was made within a reasonable time, and respondent thereupon became entitled to the possession. We think the contention that the contract was unilateral is not available to relieve appellant of liability if the tender was kept good.

Appellant argues that there was no evidence of the tender having been kept good. The complaint alleges a tender to appellant and a refusal to accept it before suit, and also that it was brought into court. The court expressly found that there was a tender made on November 2, 1905, which was before suit was brought, but did not expressly find that the tender either was or was not kept good. There was evidence of the tender before suit, but we find no testimony that it was brought into court and kept good. The statement of facts, however, contains the following recital: "The defendant admitted in open court that a tender as alleged in plaintiff's complaint had been made, and that it would be unnecessary to offer proof of that subject." The above admission relieved respondent of the necessity of making proof upon the subject of tender "as alleged in plaintiff's complaint," which covered both the original tender and the bringing of the same into court. It did not, however, extend to an admission that the tender had been kept good until the time of the trial. Respondent's right to maintain the suit and obtain the judgment depended upon whether he had tendered the $75, and had at all times kept the tender good. Appellant argues with apparent seriousness that the judgment is against it for the return of the ring or its value, and that respondent retains the $75. Such a result would be manifestly wrong, and the condition of the record is such that we cannot tell whether the tender has been kept good so that it has at all times been available to appellant or not. If If it was kept good so that appellant could have drawn it from the registry of the court at any time, respondent should have seen that the record so disclosed. In the absence of such a showing the cause will have to be remanded for further proceedings.

The judgment upon the record before us is therefore reversed, and the cause remanded, with instructions to the trial court to vacate the judgment, and then proceed to ascertain if the tender in court was at all times kept good, and to enter an additional finding upon that subject. If it shall be found that the tender was kept good, then judgment shall be entered to the same effect as the former judgment. Otherwise judgment shall be entered dismissing the cause. Appellant is entitled to recover its costs upon this appeal.

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