to prevent the escape of fire or sparks therefrom; to use reasonable care in keeping them in repair; to use reasonable care and skill in operating and managing such locomotives while running; to use reasonable care in preventing the accumulation of combustible materials along its right of way: to use reasonable care in arresting the spread of fires which have been communicated from its locomotives or which have been otherwise set by its. servants on its right of way, or by strangers; and to use reasonable efforts to extinguish fires set by its locomotives, by its employés, or spreading from its right of way, no matter by whom set, after such fires have reached the premises of others.

"The degree of care which it is required to exercise in all these cases is, as in other cases, proportioned to the danger accruing to third persons from the failure to exercise care. In other words, here, as in other cases, what the law regards as reasonable care is a care proportioned to the risk; and it may in some cases require a high degree of skill and the most exact and unremitting attention and diligence, while in other cases, where the danger is remote, it

will be satisfied with less skill and with a less exact and sustained degree of attention."

An insurance agent, by agreeing to obtain without commission a loan from his company to defendant if latter would take out life policies for which agent would obtain commissions, violated Rem. Code 1915, § 6059-180, prohibiting rebates, and upon defendant's refusal to accept policies and loan the agent could not recover on the contract, and it was immaterial that the statute did not declare such contract void in view of section 6059-191, providing that agent shall be fined and have his license revoked for violating any of the provisions of that article.

[Ed. Note. For other cases, see Contracts, Cent. Dig. § 479.]

Department 2. Appeal from Superior Court, King County; John S. Jurey, Judge.

Action by F. C. Moser against Alexander Pantages and wife. Demurrer to amended complaint sustained and action dismissed, and plaintiff appeals. Affirmed.

Kerr & McCord, of Seattle, for appellant. Ryan & Desmond, of Seattle, for respondents.

[4] The trial court in other portions of the charge to the jury properly defined the degree of care resting upon the defendant, but the vice in the instructions is that they are absolutely contradictory and inconsistent. In one place the jury is told that the defend- MOUNT, J. The plaintiff brought this acant must exercise the highest degree of care tion to recover damages because the defendconsistent with the practical conduct of its ants failed to pay the premiums upon two business, and in other places in the charge it life insurance policies. The trial court susis told that the defendant need only exercise tained a general demurrer to the amended ordinary and reasonable care in the light of complaint. The plaintiff refused to plead the attending circumstances and surround- | further, and an order was entered dismissing ings. The instructions are irreconcilable, the action. The plaintiff has appealed. and set up for the guidance of the jury contradictory rules pertinent to a material and vital issue in the case. Under such circumstances it is impossible for the court to say which instruction the jury followed. One of the instructions was erroneous, and it may be the jury followed that one. The instructions being thus inconsistent and contradictory upon a material and pivotal point in the case, the error must be regarded as prejudicial, requiring a reversal. Dunn v. Puget Sound T., L. & P. Co., S9 Wash. 36, 153 defendant Alexander Pantages made a written "(3) That thereupon on May 27, 1914, the said Pac. 1059; Johnson v. Heitman, 88 Wash.application through this plaintiff for a loan of 595, 153 Pac. 331; Paysse v. Paysse, 84 Wash. 351, 146 Pac. 840; Mosso v. Stanton, 75 Wash. 220, 134 Pac. 941, L. R. A. 1916A, 943; Gage v. Springston Lumber Co., 47 Wash. 141, 91 Pac. 558; Elderkin v. Peterson, 8 Wash. 674, 36 Pac. 1089; Miller v. Vermurie, 7 Wash. 386, 34 Pac. 1108, 35 Pac. 600.

The assignments of error not referred to or discussed in this opinion have been noticed and are considered to be without merit.

The judgment is reversed, and the cause remanded for a new trial not inconsistent with this opinion.

The amended complaint, after alleging that the defendants are the owners of two lots in the city of Seattle, is as follows: defendants orally employed the plaintiff to nego"(2) That on or about April 1, 1914, the said tiate for them a first mortgage loan upon the within described property. That thereupon this plaintiff entered into negotiations with the New York Life Insurance Company of New York, to procure the maximum loan for said defendants upon the within described property which the said New York Life Insurance Company might authorize.

$150,000 to be secured by a first mortgage upon said premises for a period of five years with interest at the rate of 6 per cent. per annum with repayments of $10,000 at the end of the second, third, and fourth years, $100,000 to be advanced upon satisfactory title being shown, the balance after the completion of a building to be erected on said lots to cost not less than $200,000. That the New York Life Insurance Company accepted the application of said defendants for said loan and agreed to make same in accordance with the terms of said application.

"(4) That at the time the plaintiff was employed by the defendants to procure said loan, and as compensation for his services in procur ing the said loan of $150,000 for the defendants, the defendants agreed to take out life insurance policies in the New York Life Insurance Company through the plaintiff, as agent for said New York Life Insurance Company; the said plain

ELLIS, C. J., and MORRIS, MAIN, and tiff being during all of said negotiations a soCHADWICK, JJ., concur.

licitor of life insurance for the New York Life

Insurance Company. That said plaintiff stated to said defendants that, if the defendants took out policies in the said New York Life Insurance Company at the solicitation of the plaintiff, he as a solicitor of the New York Life Insurance Company would be entitled to a commission for procuring such insurance, and that the commission he would receive from the New York Life Insurance Company for procuring said policies would be his compensation for the procuring of said loan for the defendants upon the above-described premises.

"(5) As there now existed a completed contract between the New York Life Insurance Company and the defendants, for a loan, said plaintiff therefore demanded of the said defendants for his services for procuring for them the said loan of $150,000 that they accept policies of life insurance in the said New York Life Insurance Company. That on the 28th day of May, 1914, said plaintiff delivered to the defendant Alexander Pantages policy of life insurance No. 4,577,322 issued by the New York Life Insurance Company for $100,000 upon the life of the said Alexander Pantages, and at the same time delivered to Alexander Pantages policy of life insurance No. 4,577,325 issued by the New York Life Insurance Company for $100,000 upon the life of the defendant Lois A. Pantages. That said policies of insurance were received and accepted by the said defendants, and that the said defendants promised and agreed to pay the premiums thereon and to maintain said life insurance policies in force. That the premiums upon said policies for the first year aggregated the sum of $10,359, which sum the defendants promised and agreed to pay. That, under plaintiff's contract of employment with the New York Life Insurance Company, he was entitled to receive out of said premium, for the year 1914, when paid, 35 per cent. thereof, or the sum of $3,625.65, upon said policies of insurance so delivered by plaintiff to the defendants and accepted by them.

(6) That after the plaintiff had negotiated said loan of $150,000 with the New York Life Insurance Company, and after said insurance company had agreed to make said loan, and was able, ready, and willing to complete the same, and after said policies had been issued and delivered to the defendants and accepted by them, the said defendants returned said policies to the New York Life Insurance Company and refused to pay the premiums thereon and refused to accept said loan. That the plaintiff completely performed the service of procuring said loan for the defendants and in procuring said policies of insurance, and did and performed all the things required of him under the terms of his employment with the defendants. That the defendants, by refusing to complete said loan with the New York Life Insurance Company and refusing to retain said policies of insurance after their acceptance by them, and by refusing to pay said premiums upon said policies in accordance with their agreements with plaintiff, damaged the plaintiff in the sum of $3,625.65. That the plaintiff has demanded of the defendants the payment of said sum of $3,625.65, but that the defendants have not paid the sum nor any part thereof, and that the whole sum of $3,625.65 is now due and unpaid."

Then follows a prayer for judgment for that amount.

*

*

*

terms and conditions of the contracts it makes;
nor shall any company or agent
make
any contract of insurance or agreement as to
such contract, other than is plainly express-
ed in the policy issued thereon; nor shall any
such company or agent
pay or allow,
or offer to pay or allow, as inducement to in-
surance, any rebate of premium payable on the
policy, or any special favor or advantage in the
dividends or other benefits to accrue thereon,
or any other valuable consideration or induce-
ment whatsoever not specified in the policy con-
tract of insurance."

The complaint above quoted shows that the loan contract and the insurance contract were parts of the same transaction. It shows that the appellant was an agent of the New York Life Insurance Company; that as such agent he was employed by the respondents to obtain a loan of $150,000 from the New York Life Insurance Company; and then, in paragraph 4, states:

"That said plaintiff stated to said defendants that, if the defendants took out policies in the said New York Life Insurance Company at the solicitation of the plaintiff, he as a solicitor of the New York Life Insurance Company would be entitled to a commission for procuring such insurance, and that the commission he would receive from the New York Life Insurance Company for procuring said policies would be his compensation for the procuring of said loan for the defendants upon the above-described premises."

This is a direct allegation that the commission he would receive from the company for procuring the policies would be his compensation for procuring the loan. In other words, he would reduce the premium by the amount of his commission, as an inducement for the respondents to enter into the contract of insurance. In short, the appellant induced the insurance by a rebate of the premium to the extent of his commission which he made up by a charge for procuring the loan. This clearly is in face of the statute which provides that no insurance agent shall pay as an inducement to insurance any rebate of premium payable on the policy, or any special favor, or other valuable consideration, or inducement whatsoever, not specified in the policy contract of insurance.

The appellant relies upon the case of Calvin Phillips & Co. v. Fishback, 84 Wash. 124, 146 Pac. 181. That case is distinguishable from this by the fact that in that case there was no rebate of commissions, either on the loan or upon the policy of insurance. Here, there is a rebate upon the premium for the policy of insurance, or a rebate of commissions for procuring the loan, either of which was unlawful, because an unlawful inducement for the insurance. We are satisfied, for that reason, that the opinion in the Calvin Phillips Case 'does not control

The statute (Rem. Code, § 6059-180) pro- in this case.

vides:

The appellant further argues that, if the "No life insurance company doing business in this state shall make or permit any distinction complaint discloses an agreement in violation or discrimination in favor of individuals, between of the section of the Code above noted, even insurants of the same class and equal expecta- then he is not precluded from recovering, betion of life, in the amount of payment of premi- cause the law does not declare such contract ums or rates charged for policies of life or endowment insurance, or in the dividends or other void. The statute does not, in terms, declare benefits payable thereon, or in any other of the such contracts void, but section 6059-180

164 P.-49

no failure of proof so far as this branch of the case is concerned.

month of January, 1914. It is conceded by | into and that its terms were as we have indidefendant that peanuts of that total value cated. We are of the opinion that there was were so sold to it, and that the claim therefor was assigned to the plaintiffs by the Pacific Oil Mills, a corporation, before the commencement of this action. The defendant alleges that before such assignment was made it earned the sum of $7,940 as commissions in selling peanuts for Pacific Oil Mills in Chicago and New York in pursuance of a commission contract entered into between it and that corporation, which earned commissions the defendant alleges are unpaid and seeks to offset the same against the claim of the plaintiffs here sued upon. So the real controversy was, and here is, over the commission claim of the defendant. The trial in the superior court sitting with a jury resulted in a verdict in favor of the defendant to the effect that it is entitled to have its commission claim offset against the claim of the plaintiffs, and that such commission claim exceeds the claim of the plaintiffs. Judgment was accordingly entered that plaintiffs recover nothing and that the defendant recover from the plaintiffs its costs and disbursements incurred in this action. From this judgment the plaintiff's have appealed to this court.

Pacific Oil Mills was a corporation engaged in the importation and wholesale of nuts in the city of Seattle at all times here in question prior to the assignment of its claim against respondent to appellants, who thereafter did business as copartners under the same name. Respondent was at all times here involved engaged in the nut business in Seattle, but on a much smaller scale than that of appellants and their predecessor, Pacific Oil Mills. While respondent was much the smaller concern of the two, it apparently had superior selling facilities and advantages of which Pacific Oil Mills desired to avail itself.

The principal contentions here made by appellants have to do with the sufficiency of the evidence to sustain the verdict and judgment, which questions, were presented to the trial court by motions timely made therein. It is insisted in that behalf that there was not sufficient proof of the making of the commission contract between respondent and Pacific Oil Mills. The fact of the making and also the terms of that contract seem to us to be rendered quite certain by the testimony of the respondent's president, if he is to be believed, the furnishing of samples by Pacific Oil Mills to respondent, and certain correspondence introduced in evidence. The contract so appearing contemplated the sale of peanuts by respondent for the Pacific Oil Mills in Eastern cities and that respondent should have as its compensation for making such sales an amount equal to the excess over six cents per pound. It seems quite clear to us that the evidence fully warrants the conclusion as evidently reached by the jury that this contract was actually entered

[1, 2] It is contended that there was a failure of proof of the making of sales under the commission contract by respondent. This' contention seems to be rested largely upon the fact that the sales were made by respondent's representatives in its own name instead of the name of Pacific Oil Mills. The making of sales in this manner without disclosing the name of Pacific Oil Mills as principal was assented to by it upon being fully advised of the sales being so made. It actually made shipments in accordance with some of these sales and received the whole of the proceeds therefrom, the shipments being made by Pacific Oil Mills in the name of respondent, and remittances in payment thereof being immediately turned over to Pacific Oil Mills when received. There was evidence pointing to a special reason for the making of sales by respondent in this manner without disclosing to the purchasers the principal for whom it was acting and that this manner of making the sales would have worked to the benefit of Pacific Oil Mills in increasing the quantity of sales had it furnished the goods as agreed upon by it in the commission contract. Not only did that corporation know of the reason for the sales being so made, but evinced a ready willingness to profit thereby in so far as it saw fit, or was able, to furnish the goods in consummation of the sales. The conclusion that respondent was in fact at all times acting for Pacific Oil Mills and not for itself is amply supported by the evidence. cific Oil Mills, and also appellants, as its This, we think, renders it plain that the Pasuccessors in interest, can neither avail themselves of the fact that the sales were made in respondent's name. We have had occasion to notice the law relating to contracts made by agents of undisclosed principals as being in harmony with this conclusion in our recent decision in Pacific Power & Light Co. v. White et al., 164 Pac. 602. This is not a case involving ratification of a contract made by one who at the time of its making was not in fact acting for the one sought to be held upon the theory of ratification, as counsel for appellant seem to argue, citing 2 C. J. 474. In other words, we have here a case where there was an existing principal for whom the agent acted at the time of making the sales contracts, though such principal was not disclosed to the purchasers. We are of the opinion that there was no failure of proof of the fact that these sales contracts were the contracts of the Pacific Oil Mills, made by respondent as its agent.

[3] It is contended that the proof fails to show that the purchasers to whom respondent claims to have made the sales were willing and able to consummate the sales. That they were willing to consummate the sales