We think the error, if any, was harmless [4. EVIDENCE ~474(11)—OPINION EVIDENCEin view of the action of counsel in withdrawOPERATION OF FERRY. ing his statement and asking the jury not to consider it. It was an admission that counsel was possibly overstepping the limits of proper argument as potent and emphatic as

would have been an admonition of the court that it be disregarded.

In action for damages resulting from maintenance of a county ferry, the opinion of persons using the ferry and of the builder as to result of driving thereon in particular ways was competent, being the results of their experience with the particular boat.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2206.]

5. TRIAL 295(1) INSTRUCTIONS
STRUCTION-CONTEXT.

CON

It is immaterial that words and sentences

an instruction, taken separately, do not state the law, where, construed with the context, they

are correct.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 703, 704, 713, 714, 717.]

Court, Lewis County; A. E. Rice, Judge.
Department 2. Appeal from Superior

[4] The last contention of appellants is that the court erred in giving certain instructions, six in number, and in refusing to give ten instructions requested by them. Conced-in ing that there may have been error in the giving or refusing of any of these instructions, the error was without prejudice, inasmuch as they related to the liability of the respondents Northern Pacific Railway Company and Jacob Heether and the verdict was against these defendants. None of them bore upon the amount of the recovery. In the case of Peterson v. Wadley & Mt. V. R. Co., 117 Ga. 390, 43 S. E. 713, it was held: "Where, in a suit against a railway company for damages, the jury returns a verdict in favor of the plaintiff, he cannot justly complain of an erroneous charge touching his right to recover, nor of any other error which did not operate to his prejudice."

See, also, Sears' Adm'r v. Louisville & N.

R. Co. (Ky.) 56 S. W. 725; Aris v. Mutual

Life Ins. Co., 54 Wash. 269, 103 Pac. 50.

Finding no errors in the rulings of the trial court of which appellants can justly complain, the judgment herein is affirmed.

(95 Wash. 499)

(No. 13917.)

BERGEN v. LEWIS COUNTY.
(Supreme Court of Washington. April 3, 1917.)
1. COUNTIES_210-ACTION AGAINST-DAM-
AGE FROM MAINTAINING FERRY.

The fact that Rem. Code 1915, § 951, allowing actions against counties "for an injury to the rights of the plaintiff arising from some act or omission," does not expressly mention damages from operation of a ferry, does not exclude such action, since section 5013, later enacted, authorizes counties to operate ferries; the former section being a general statute and applying to all acts or omissions of counties.

Action by B. J. Bergen against Lewis County, Washington. Judgment for plaintiff, and defendant appeals. Affirmed.

C. A. Studebaker, of Chehalis, for appel-
Forney & Ponder, of Chehalis, for re-

lant.

spondent.

MOUNT, J. The respondent, in May, 1915, lost a horse, some harness, and some seats from a wagon, which were precipitated into the Cowlitz river, while the respondent was endeavoring to cross that river upon a ferry. This ferry was operated as a free ferry by tion against the county to recover the value Lewis county. Respondent brought this acof the property, and, upon issues joined and trial of the case to a jury, recovered judgment against the county for $225.

[1] The county has appealed from that judgment. The appellant argues that a de

murrer should have been sustained to the complaint, for the reason that the county is not liable for damages resulting from the operation of a ferryboat by the county. The appellant contends that counties are not liable for wrongs committed in the exercise of their corporate powers, except by express legislative enactment, and that such legislative enactments must be construed strictly; that there is no statute in this state, which, strictly construed, authorizes an action for damages against a county in 2. APPEAL AND ERROR ~1050(2)—HARMLESS cases of this kind. The statute upon this ERROR-IRRELEVANT EVIDENCE. subject (section 951, lows:

[Ed. Note. For other cases, see Counties, Cent. Dig. §§ 339, 340.]

The admission of irrelevant or immaterial evidence, which was entirely harmless and of no consequence in the case, was not reversible error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4154.] 3. APPEAL AND ERROR 1053(3)-HARMLESS ERROR-EVIDENCE-CHANGE OF CONDITIONS AFTER ACCIDENT.

Admission of evidence that, after accident in driving upon a county ferry, chains were furnished to fasten boat to the bank was harmless; condition of fastenings not being claimed as negligence, but failure to use them, and the jury being instructed that the change was immaterial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4180-4182; Trial, Cent. Dig. § 977.]

Rem. Code) is as fol

"An action may be maintained against a couned or described in the preceding section, either ty, or other of the public corporations mentionupon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation."

This statute was originally passed in 1869. At that time there was no statute in this state authorizing counties to operate ferries; but subsequently, in the year 1895, counties were authorized to operate and maintain ferries. Section 5013, Rem. Code.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

jury.

[2] Upon the trial, a witness was asked: "Was there any skiff or any attending boat attached to the ferryboat, or any in close proximity to it?"

He answered:

The appellant reasons that, because, at the into the stream, and caused his own intime the statute above quoted was enacted, counties were not authorized to operate ferries, the subsequent passage of the act authorizing ferries did not render counties liable for the mismanagement of ferries, because the general act does not specifically mention ferries. We think there is no merit in this contention. Section 951, Rem. Code, above quoted, is a general section, and applies to all acts or omissions of the county. It is not limited to any particular subject.

them if they had been there?
"No, not that I saw. Q. Would you have seen
A. I probably
would. Q. Was there any skiff or anything of
that kind there available for use in time of
emergency?"

This last question was objected to, but When the county was without authority to the objection was overruled, and the witness answered:

operate a ferry, of course, this section did not then apply; but, when the Legislature afterwards authorized counties to operate ferries, the act applied to ferries, as well as to every other endeavor operated or conducted by a county. It was not necessary for the Legislature to again say that, in the operation of ferries, counties should be liable for injuries to the rights of persons using such ferries, because that liability was already provided by a general statute. This court has held that counties are liable in damages for injury to the rights of persons, arising from acts or omissions of counties, where bridges were being operated, and where school districts were involved. See Redfield v. School District No. 3, 48 Wash. 85, 92 Pac. 770; Howard v. Tacoma School Dist. No. 10, 88 Wash. 167, 152 Pac. 1004, and cases therein cited. We are satis; fied, therefore, that the court properly overruled the demurrer to the complaint.

river from where we were; yes, sir."
"There was a skiff on the other side of the

It is contended by the appellant that this evidence was erroneous. We do not see the relevancy of the evidence; but, even though it was irrelevant or immaterial, we think it was entirely harmless, and of no consequence in the case.

[3] It is next urged that the trial court erred in admitting evidence to the effect that, after the accident, the county furnished chains with which to fasten the boat to the bank. When the ferryman was upon the stand, he was asked this question:

"Did you, when you were running that boat, have chains furnished by the county to you to use?"

An objection was made to this question, and sustained. Then the following occurred:

"Q. Did you request the county commissioners to furnish you with any fastenings for the boat?"

There was an objection to this, and the court said:

"I don't think you can go into that while he was there. Q. Do you know when the county did furnish chains for the mooring of this boat?" An objection was made to this, and overruled.

"A. Well, it was after I turned the boat over to Mr. Rose, after this accident happened. Q. Before that time, what means did they have for mooring the boat to the shore?"

An objection was overruled, and the witness answered:

"Well I had a piece of rope right there. Q. the county." Furnished by whom? A. It was furnished by

Upon the trial of the case, it was conceded that the ferryboat was being operated by the county as a free ferry; that the respondent reached the ferry when the ferryman was on the opposite side of the river; that he signaled the ferryman to come and take him across. The ferryman came across, and respondent contends that the ferryman, when he arrived across the river, signaled the respondent to drive upon the ferryboat; that the respondent, at that time, was some 40 or 50 feet away, and the approach to the ferryboat was a steep down grade; that, when the respondent received the signal, he drove down the grade, and, as his horses stepped upon the ferryboat, it was pushed out into It is contended by the appellant that this the stream, and the horses and wagon were evidence was erroneous, because it shows precipitated into the river. It was denied by a change of condition after the accident. the appellant, upon the trial, that the ferry-We think this evidence was not prejudicial, man had signaled the respondent to drive up for two reasons: First. The character of on the boat; but it was claimed, on behalf the fastening was not claimed as negligence. of the county, that the respondent drove up- Negligence was based upon the nonuse of on the boat before he had received any sigthe fastening provided. The rope furnished nal, in a careless and reckless manner, and before the ferryboat was fastened to the was not used. That fact was the negligence claimed. Whether the fastening provided shore; that the respondent did not obey was a chain or a rope would make no difthe direction of the ferryman, but, when his ference. Second. The court instructed the team was wholly upon the boat, and the jury specifically to the effect that: wagon about half upon the boat, the respondent proceeded to back his horses, and

"Whatever acts have been done or means provided, if any, since such accident, by the defend

secure, is no evidence of neglect at that time or prior thereto, and you are instructed not to consider the fact that other or different means have been adopted since such accident."

It follows that, if there was any error at all in the evidence offered, it was plainly cured by this instruction.

[4] The appellant argues that the court erred in admitting evidence of certain persons, who had crossed the ferry, as to the way the ferry was operated, and as to their judgment of safe operation. It is argued by the appellant that these witnesses were not experts, and that it was error, therefore, to receive their judgment. These witnesses testified that they had used this ferry upon different occasions. One of these witnesses had built the ferry himself. He testified as to the manner of its operation, and as to the result of driving upon the ferry in particular ways. We are satisfied that these witnesses were competent to give their opinions upon the results of their experience with this particular boat.

It

The appellant devotes several pages of its brief to a criticism of the instructions. is not necessary, in this opinion, to set out these instructions. We have read them carefully, and find there is no merit in any of the assignments thereon.

[5] The appellant selects sentences and words from the different instructions, and argues that these sentences and words do not declare the law, but, taken in their setting, as used in the instructions, we are satisfied that they sufficiently stated the law to the jury.

We find no error in the record, and the judgment must therefore be affirmed.

ing for an undisclosed principal purchased the
certificate from the receiver, acting through an-
other, who had also some interest in the cer-
tificate, for $20,000, taking assignment in blank.
Out of the agreed purchase price of the certifi-
cate the agent who purchased retained $1,000.
and made an agreement with the receiver of the
bank and the party acting for him that the $1,-
000 might be held in escrow by the agent, and
that so much of it as might be necessary might
be used toward securing an extension of the
mortgage on the land and a renewal of the mort-
gage in payment of any bonus or commission
that the agent might be required to pay, but
that any excess remaining between the amount
necessary to negotiate a renewal or the exten-
sion of the loan should be paid to the receiver
of the bank and the party acting for him. Held,
that the language of the contract, construed in
the light of all the existing circumstances and
conditions of the parties, while not apt, did not
require the re-establishment of the existing mort-
gage to the then mortgagee, or its extension of
time of payment to the holder of the title.
[Ed. Note.-For other cases, see Mortgages,
Cent. Dig. § 1580.]

ELLIS, C. J., and HOLCOMB, PARKER, 12th day of February, 1915, between Ovid A. and FULLERTON, JJ., concur.

(95 Wash. 492)

GUIE v. BYERS et al. (No. 13870.) (Supreme Court of Washington. April 3, 1917.)

1. CONTRACTS 159-"RENEWAL."

In general, a "renewal," as applied to promissory instruments, means a change of something old for something new.

HOLCOMB, J. On the date therein stated the parties contracted in writing as follows: "This agreement, made and entered into this Byers, party of the first part, and E. H. Guie and E. O. Patterson, parties of the second part, witnesseth: That one thousand dollars ($1,000.00) of the purchase price of the certificate of purchase of lot one (1), block sixty-six (66), plat of A. A. Denny's addition to the city of Seatshall be held in escrow, may be and is so held tle, which the purchase money receipt provides by the said first party, and said one thousand dollars ($1,000.00), or so much thereof as may be necessary, may be used towards securing an extension of said mortgage and a renewal of said forty thousand dollar ($40,000.00) mortgage in payment of such bonus or commission that first

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Renewal.] 2. CONTRACTS 159 "RENEwal” and “Ex-party may be required to pay, but any excess reTENSION"-APPLICATION OF WORds. In general, the words "renewal" and "extension" apply to the particular debt and instruments between the same parties or their succes

sors.

[Ed. Note.-For other definitions, see Words and Phrases, Extend; Extension.] 3. CONTRACTS

TION OF PARTIES.

159-CONSTRUCTION-INTEN

maining between the amount necessary to negotiate a renewal or extension of said loan shall be paid to the parties of the second part, which shall be accomplished on or before August 16, 1915.

"In witness whereof, the parties hereto have set their hands and seals, the day and year first above written. Ovid A. Byers, [Seal.] [Signed] by Alpheus Byers. E. P. Patterson, [Seal.] [Signed] by E. II. Guie. E. H. Guie. [Seal.]", The agreement is loosely drawn. It appears from the evidence, however, that on and prior to that date one E. O. Patterson, as receiver of the Nye & Ormsby County A receiver of a bank owned a sheriff's sale Bank of Carson City, Nev., was the owner of certificate of mortgaged realty. An agent act- a sheriff's sale certificate, as purchaser at

The words "renewal" and "extension," are not words of art, having no legal nor technical significance, and may mean whatever the parties intended when contracting.

4. MORTGAGES 552-CERTIFICATES OF SALE

-TRANSFER-CONSTRUCTION.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

On

sheriff's sale of the real estate described in agreement with appellant to July 20th when the agreement; that on about the date of he purchased the former mortgage, $211.11; the agreement, the respondent Byers, acting aggregating $1,048.56. The agreement inavowedly for an undisclosed principal, pur- volved here makes no mention of the extra chased the certificate of sale from Patterson, interest at 1 per cent. which appellant had acting through appellant, who had also some agreed to pay to the mortgagee, and that interest in the certificate, for the agreed sum mortgage on its face provided for interest of $20,000, taking an assignment thereof in only at 6 per cent. instead of 7 per cent. blank (to an unnamed assignee); that out of The $211.11 was therefore a bonus charge for the agreed purchase price of the certificate the forbearance of the mortgagee for that of sale, Byers retained the $1,000, and at the period of time, and one which appellant had same time entered into the agreement set initiated and knew would be exacted. forth; that afterwards the identity of the August 18, 1915, after the expiration of the undisclosed principal for whom Byers was time limit specified in the written agreement, acting was disclosed to be respondent God- appellant demanded of both respondents the win. The time for the redemption from sale payment of the $1,000 left in escrow with by the execution debtors under the assigned Byers, on the ground that the loan referred certificate of sale expired on August 15, to in the agreement "was never extended or 1915. At the time of the sheriff's sale and renewed, but that Mr. Godwin has paid off at the time of the transactions between these the mortgage by taking an assignment of parties, there was a prior existing mortgage the same." The foregoing quotation fully exon the real estate securing a note of $40,000, presses appellant's contention here. After held by the German Savings & Loan Society refusal by respondents to pay the $1,000, apof San Francisco, Cal. This note was past pellant procured an assignment to him from due and the mortgage foreclosable. None of Receiver Patterson, and began his action to the parties to the agreement had the means recover the money. The trial judge thought to pay and satisfy it. Originally and until that it was "manifest on the face of the conmaturity this note bore interest at the rate tract that the parties contemplated and unof 6 per centum per annum, but after Patter-derstood that the purchaser of appellant's son and appellant had obtained the certifi- certificate of sale (which was subject to the cate of sale some arrangement was made, $40,000 mortgage) had to have a renewal of whereby the mortgagee was paid interest the loan, that he could not pay it," and that at 7 per cent., but no definite extension of "the spirit and intent was that the purchastime was granted by the mortgagee, and the er had to have it stayed off." The court almortgage was merely continuing by forbear- so considered that one could renew a loan ance on its part. It seems that the annual which he owed one creditor with another interest charge was apportioned and payable creditor; that one could get an extension of and was paid in monthly payments. After an existing mortgage, or, if not, could repurchasing the certificate of sale and making new the loan with some other lender. Upon the written agreement with appellant, God- these views the trial court refused the rewin attempted to secure an extension or re- covery to appellant. newal of the note and mortgage from the [1] We admit some difficulty in correctly mortgagee, but was unsuccessful, the mortga-interpreting the agreement. Strictly speakgee refusing to grant such extension or re-ing, the trial judge's statement of the meannewal. He then borrowed the money from a bank by a personal loan, purchased the $10,000 mortgage, and procured the assignment of it and the note from the German Savings & Loan Society, payment of which seems to have been exacted to be made in San Francisco, as the company required interest to be paid to the date of its receipt of the money in San Francisco, some three or four days after the transmission of the money from Seattle. Godwin then negotiated a real estate loan from the Burlington Trust Company of New York upon the real estate mentioned herein, together with some other real estate of his own, and thereby obtained the money with which to satisfy his personal loan from the bank which had been used to satisfy or purchase the former mortgage. In procuring the new loan he expended, for commissions $787.45, for examination of abstract of title to the new mortgagee's attorneys $50, and he had previously paid out to the former mortgagee, by way of the extra 1 per cent. interest from the date of the

ing of a renewal or an extension may not be correct. In general a renewal, as applied to promissory instruments, means "a change of something old for something new; as the renewal of a note." Bouvier's Law Dictionary. It has been defined as meaning the reestablishment of a particular contract for a longer period of time; to restore to its former condition an obligation on which the time of payment has been extended. Kedey v. Petty, 153 Ind. 179, 54 N. E. 798. And it has been said that:

"To renew, in its popular sense, is to refresh, revive, or rehabilitate an expiring or declining subject, but is not appropriate to describe the making of a new contract or the creation of a new existence." Carter v. Brooklyn Life Ins. Co., 110 N. Y. 15, 17 N. E. 396.

"Extension" has been defined as the granting of further time in which to do something which has been set down for a particular day; a postponement by agreement of the parties of the time set for acting; the allowance on the part of the creditor to a debt

or of further time to pay a debt. Century | gage by respondent Godwin constituted an exDictionary. tinguishment thereof. That, however, was [2] In general these words apply to the par- merely a temporary expedient for the preventicular debt and instruments between the tion of foreclosure and consequent loss of tisame parties or their successors. But it hastle. He merely proceeded with due business also been said that "renewal" means "the substitution of a new right or obligation for another of the same nature," and that "it is not a word of art; it has no legal or technical significance." Anderson's Law Dictionary. Sponhaur v. Malloy, 21 Ind. App. 287, 52 N. E. 245. In Lowry Nat. Bank v. Fickett, 122 Ga. 489, 50 S. E. 396, it was held that: "There may be a change of parties. There may be an increase of security, but there is no renewal unless the obligation is the same. What makes the renewal is an extension of time in which to discharge the obligation. If the obligation changes, there can be no renewal, because there can be no such thing as the re-establishment of an old obligation by the creation of a new obligation different in character."

In an action on a policy of burglary insur[5] It is technically true as asserted by apance, evidence held insufficient to show that inpellant that the purchase of the former mort-sured's accounts were either faked or inaccurate,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes