and those operating for and with him, seem to have deliberately set about to make a paper case, but when this is measured in the light of equity, we are compelled to find that there was no consideration for the note sued on, or, if so, that it was discharged, and that the mortgage was a pretense, and that respondent holds nothing that is enforceable as a lien against the present owners of the legal title to the property. Reversed and remanded, with instructions to enter a decree upon the facts in favor of the appellant, SENGER-DAMAGES. Plaintiffs, husband and wife, started to board defendant's street car with transfers. The wife was ahead, and as the husband was about to follow her, the conductor refused to let him ride, at the same time calling him a “Dago." The wife followed her husband off the car, and as she was about to step from the last step, the conductor started the car, causing her to nearly fall down. There were several passengers in the car at the time. The husband suffered no physical injury, the wife left the car voluntarily, no mental anguish or suffering was shown, and there was no financial loss, except a portion of the small street car fare. Held that, there being nothing but a naked violation of a legal right, plaintiffs could recover only nominal damages, and a verdict for $300 was unwarranted. Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. 277.] Department 2. Appeal from Superior Court, Chehalis County; Ben Sheeks, Judge. Action by Joseph Bartolini and wife against the Grays Harbor Railway & Light Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with instructions. Bridges & Bruener, of Aberdeen, for appellant. A. Emerson Cross, of Aberdeen, for respondents. HOLCOMB, J. Respondents boarded a car operated by appellant, and paid their fares to go to their home between Hoquiam and Aberdeen, having with them their baby and baby carriage. They were obliged to make a transfer from the first car to another to complete the journey, and when they left the first car to board the second, the husband having secured transfers when he paid their fares, he carried the baby, the baby carriage was on the street, and the wife preceded the husband and entered the car. The husband testified that, as he was about to follow his wife, and had just stepped on top of the platform in the back of the car, the con ductor said to him, "I wont let you ride, you Dago;" that he said to the conductor, “I have got my transfers; I have got, my baby buggy, too;" that the conductor replied, "I don't care for your buggy; you get down pretty damn quick, you Dago." He further testified that he obeyed the order of the conductor and got off the car, first following the motion the conductor made with his arm to get off; that his wife followed him off the car, and, when she was about to step off the last step, the conductor started the car, and she came near falling down; that he took care of his wife from the shaking up and dizzy feeling she experienced as a result of starting the car before she got off; that there were five or six passengers in the car at the time the conductor ordered him off; that the conductor never asked him to hang. the baby carriage on the outside rear end of the car and never pointed to the hook to hang the baby carriage on; that the conductor never said anything about the baby buggy. The wife testified to their getting on and off the car; that she went first into the car; that she heard the conductor speaking to her husband crossly, but could understand nothing that was said, except the word "Dago" spoken by the conductor; that the conductor started the car when she was just stepping off the last step, and she came near falling; that at the time she was in a pregnant condition. The husband could understand a very little English; the wife none. The testimony as to what was said was in sharp conflict. The conductor, motorman, and a lady who was not an employé of appellant, but a passenger on the car, testified that the conductor did not call the man any names, but told him to hang the baby buggy on the hook at the rear, and pointed to it. The jury, however, resolved the facts in favor of respondents, and gave them a verdict for $300. A motion for new trial was made, one of the grounds of which was that the verdict was grossly excessive. The motion was denied. There was not the slightest physical injury to the husband. The wife was not, even assuming the truth of respondents' testimony, ordered off the car, but voluntarily got off. There was no testimony of any "mental anguish or suffering." There was no financial loss, except a portion of the small street car fare. There was, in fact, simply a naked violation of a legal right, which would entitle respondents to nothing more than nominal damages. A verdict for $300 is clearly the result of passion and prejudice, and is not warranted. This case is governed by the decision of this court in Wilson v. Sun Pub. Co., 85 Wash. 503, 148 Pac. 774. Respondents are entitled to nominal damages, and nothing more. The judgment is reversed, and the cause remanded, with instructions to enter judg ment for nominal damages in the sum of $1 | defendant Carney appeals, and plaintiff prosin favor of respondents. Appellant will re- ecutes a cross-appeal. Affirmed. cover costs of appeal. MORRIS, C. J., and MAIN, MOUNT, and PARKER, JJ., concur. (88 Wash. 327) Preston & Thorgrimson, of Seattle, for appellant. Walter A. Keene, of Seattle, for cross-appellant. BAUSMAN, J. This is an action at law tried without jury. Appellant Carney, who GRAND UNION LAUNDRY CO. v. CARNEY previously had been a contractor, entered in 1. APPEAL AND ERROR [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. ← 1009.j 2. DAMAGES 85 — Liquidated Damages PROOF OF DAMAGE. to a special partnership with defendant Heady (who has not joined in this appeal) to operate a Turkish bath. Heady had for some years been a barber next door, and Harry Okamura, in business as the Eagle Laundry, had long been doing Heady's laundry work. Carney had no interest in the barber shop. His sole partnership with Heady was in the bathhouse business. After the latter had existed two or three months, Heady informed Carney that they could get from Okamura a rate of 55 cents per hundred on the bath Though a stipulation in a contract for liq-house laundry if they would give him a 3uidated damages is construed as a stipulation year contract. Carney told Heady to do what for a penalty, the party claiming the damages is not allowed to prove damage in excess of the stipulated amount. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 179-181, 183–187; Dec. Dig. 85.] 3. DAMAGES 79-LIQUIDated DAMAGES OB PENALTY. was best in the matter. Okamura's lawyer then drew up a contract which is the subject of this lawsuit, and this was afterwards signed by Carney, apparently without his reading it. In this contract Carney and Heady, doing business as Heady's Turkish Baths, were A contract provided that the proprietors of named as first parties, and Okamura as the a Turkish bath thereby guaranteed to the laun- second. The contract, naming a price of 55 dry proprietor laundry work to the amount of cents per hundred on the bathhouse work, $1,800 a year for a term, and that on their fail-contained the following stipulation in which ure to do so, the difference between the amount actually furnished and such sum of $1,800 should be the measure of damages to the laun"The said parties of the first part hereby guardry proprietor as liquidated damages. Held, antee to the said parties of the second part suffithat on its face the contract was a proper one cient laundry work of the classes herein describfor liquidated damages, as the actual damages ed to the sum of eighteen hundred dollars per were not as claimed a mere matter of bookkeep-year for the term of this agreement, and in case ing, while the damages automatically regulated of their failure so to do, the difference between themselves according to the degree of the breach, the amount actually furnished each year and which is a feature favorable to the upholding of the said sum of eighteen hundred dollars, shall liquidated damages. be the measure of damages accruing to said party of the second part and is hereby agreed to as liquidated damages." [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 164-169; Dec. Dig. 79.] 4. DAMAGES 163 - LIQUIDATED DAMAGES OR l'ENALTY-BURDEN OF PROOF. The burden of proof was upon the proprietors of the Turkish bath to make such showing as to profits or damages as would enable the court to determine whether the parties intended the stipulation as more than a penalty clause. we have italicized features now pertinent: The contract had also a provision of 25 cents per hundred on Heady's separate barber shop work, which price was later raised 10 cents a hundred on oral and private agreement between Heady and Okamura; but upon the request of Heady that he do so and say nothing to Carney about it, the bills for this work were rendered separately to Heady. The plaintiff, successor in interest of Okamura, asked for judgment, not only for the The ease of ascertaining the damages from liquidated damages which we shall hereafter the breach of a contract is never of itself deter-refer to, but for $600 unpaid balance on this minative that a sum stipulated as liquidated damages amounts to a penalty, but is only to be last-mentioned work. This last was denied thrown in the scale of interpretation when there plaintiff by the lower court, though it found are other doubts. in his favor on the principal point. The [Ed. Note.-For other cases, see Damages, Cent. Dig. 88 454-459; Dec. Dig. 163.] 5. DAMAGES 79-LIQUIDATED DAMAGES OR PENALTY. [Ed. Note.-For other cases, see Damages, plaintiff in consequence has prosecuted a Cent. Dig. §§ 164-169; Dec. Dig. 79.] cross-appeal in this action. Department 2. Appeal from Superior [1] Before considering Carney's appeal, we Court, King County; R. B. Albertson, Judge. may at once eliminate the cross-appeal of the Action by the Grand Union Laundry Com-laundry company. That arising entirely uppany against J. E. Carney and another, part-on questions of fact found adversely to plainners, doing business as Heady's Turkish tiff, the action of the lower court in reformBaths. From a judgment for plaintiff, the ing the contract so as to exclude Carney from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes liability on the barber shop laundry bill appears to us correct, and judgment is affirmed on the cross-appeal. We resume now the appeal of Carney against whom the lower court rendered judgment for $738.98. This constitutes the difference between the stipulated $1,800 and $1,061.02, which latter was the laundry price for the total work furnished during the final year. That Carney and Heady furnished the laundry the required work during each of the first two years is conceded, but it is also conceded that they failed to do so in the third year beyond the sum mentioned. The degree of their failure is the judgment against them, for the lower court interpreted "liquidated damages" as liquidated damages, and not as a penalty. The case comes to us, then, upon that question of law. Now, neither the plaintiff nor the defendant put in any evidence to show what the status of the laundry company was in respect to either profits or loss through performance or breach of the contract by Carney and Heady in the third or any of the years, so we are invited to construe "liquidated damages" as a mere penalty on the face of the instrument itself, and the admitted sort of business involved. trary we are satisfied that this contract on its face is a proper one for liquidated damages. [4] The burden of proof accordingly was upon the defendants below. Upon them devolved a showing, if any such could be made, that would furnish the court the situation of the parties as to profit or damage, so that the court, putting itself in the position of the contracting parties at the time of the bargain, could adjudge whether it was probable that they meant more by this term than a penalty clause. One argument commonly invoked to convert liquidated damages into penalty is that in the given case the damages were quickly ascertainable. Supposing that rule, the reason for it does not exist in this record. Who can say that, when the laundryman made his bargain and added this work to his business, he did not have to make additional arrangements to carry out this added work? Presumably he would have to increase his force of men, to fetch the linen, to count it, and to clean it. For aught that appears he may have had to enlarge his shop and pay more rent, or he may have had to give up other work more profitable. Who shall say but that, on the falling off of work during the last year, the laundryman was in a position of uncertainty during a considerable period as to how rapidly he should diminish his force of workmen or his supplies? In fine, we do not agree with counsel for appellant in saying that his damages through the breach of this contract by Heady and Carney were a mere matter of bookkeeping to com Each case in liquidated damages must be determined upon its own facts. A case not greatly dissimilar is Yatsuyanagi v. Shimamura, 59 Wash. 24, 109 Pac. 282, which involved a contract of equal partnership between four workmen tailors who had impos [2] It must ever be the policy of the courts to hold to their expressed bargain minds competent to contract. Every excursion from intelligible language of parties is as liable to defeat as to promote justice. Particularly true is this in contracts prescribing “liquidated damages." Indulgence there must, in the the nature of things, give a certain advantage to one side, because the party claiming that it is a fixed amount is never, if it be constru-pute. ed as only a penalty, allowed to escape his limited sum and show damages beyond it. The bars, thrown down to the other party, are kept up as to him. To take the present instance, no matter what losses the laundry company or Okamura may have had beyond the liquidated sum, they are utterly lost.ed upon themselves a forfeiture of $1,000 Call the term a mere penalty, and the laundry company is held to its maximum, while the other side are set free from their minimum. It is a doubtful undertaking to call that not fixed which business men, in the exchange of promises, agreed was fixed. Nevertheless, courts having found it unavoidable at times to relieve parties from their own strict language pronouncing liquidated sums, it becomes necessary to discuss this provision. [3] Some contracts there are for liquidated damages that, upon their face, may be pronounced as imposing only a penalty. Certainly without further evidence some clauses of that sort appear so little in accord with the almost manifest intentions of the parties that a court may construe them as penalties, until the party claiming damage has offered evidence from the circumstances or discussions of the contracting parties that they meant just what they said when they said it. However that may be, we are satisfied that this contract is not one of these. On the con should any one withdraw from the partnership. Each partner was to receive wages for a day of prescribed length. They were apparently but little more than wage-earners, whose dropping out of the business would leave losses no harder to compute than those of Okamura here. Yet this court, declining to convert their liquidated sum into penalty, said: "The nature of the business was such that, upon a breach of the contract, the ascertainment of damages would be difficult and uncertain, and it would require exceedingly nice discernment and clear distinction on the part of either court or jury to keep away from the realm of specula* Neither is there tion and remoteness. anything to show that such sum is disproportionate to the actual loss, another feature much regarded by the courts in determining the question." [5] And it is a fallacious test, that of ease of ascertaining the damages, one never to be in itself determined against the expressed liquidated sum, but to be thrown into the scale of interpretation when there are other doubts. To take a class of cases in which, cision, distinguished it by referring to a this court held to the liquidated sum though comment of this court to the effect that the the ascertainment of damages may appear none too speculative, we may begin with Reichenbach v. Sage, 13 Wash. 364, 43 Pac. 354, 52 Am. St. Rep. 51. That case involved a clause that a liquidated sum be forfeited for any delay in the completion of a dwelling house. The language which we quoted and approved in that case from Dwinel v. Brown, 54 Me. 470, cannot be too constantly borne in mind under the temptations which so constantly arise to ignore the stipulation of parties concerning liquidated damages: "The parties themselves best know what their expectations are in regard to the advantages of their undertaking, and the damages attendant on its failure, and when they have mutually agreed upon the amount of such damages in good faith, and without illegality, it is as much the duty of the court to enforce that agreement as it is the other provisions of the contract. * No judges, however eminent, can place themselves in the place or position of the parties, when the contract was made, scan the motives and weigh the considerations which influenced them in the transaction, so as to determine what would have been best for them to do, who was least sagacious, or who drove the best bargain." This per diem liquidated damages we have frequently enforced in building contracts, though in many cases the damages were susceptible of reasonable ascertainment through rent appraisements, and though none of the damages consequent upon delay involved the calculations of expected business profits. Williams v. Rosenbaum, 57 Wash. 94, 106 Pac. 493; Dickerman v. Reeder, 59 Wash. 405, 109 Pac. 1060; Erickson v. Green, 47 Wash. 613, 92 Pac. 449. As we have already stated, we regard the damages here as difficult of ascertainment, so it is not necessary to speak further on this point. There is wanting also in this case another feature that some times infiuences courts to construe a provision for liquidated damages into a penalty, namely, the feature of fixing for any one of several different kinds and degrees of breach an equal forfeiture of money. On the other hand there is found in this case a feature which is very favorable to the upholding of liquidated damages when prescribed by the parties themselves; that is to say, that the damages automatically regulate themselves according to the degree of the breach itself. A limitation of this kind is found in Eilers Music House v. Oriental Co., 69 Wash. 618, 125 Pac. 1023, where this court had under consideration a conditional sale contract. There the vendor of a mandolin pianorchestra retained title, though he delivered possession, and was allowed to keep as liquidated damages all the payments that were made, even though he might seize the instrument and take it back into his possession. This he actually did in that instance after most substantial payments. Appellant in the present case, conceding the authority of that de deterioration of a delicate and highly complicated instrument like that could hardly be determined by evidence. This last is true, but, as all secondhand machines such as pianos and automobiles can have an approximate estimate of value, and in fact have a degree off market quotation, it would not do to place the decision of this court upon that language. Rather would we consider it as resting upon other language applicable here; that is to say, that the provision for liquidated damages made a really sliding scale. The longer the instrument was kept in use by the vendee, the more it was consumed and the more damages the vendor should have and should retain through the monthly payments. In the present case the liquidated damages diminished or increased proportionately to the supply or the shortage of work given, the parties themselves happily calling the clause the measure of damages, and adding, as we think by way of certainty to their engagement, the term "liquidated damages" with the intention that it should be a sum not subject to review. The judgment of the lower court is affirmed. MORRIS, C. J., and MAIN, HOLCOMB, and PARKER, JJ., concur. (88 Wash. 344) STATE ex rel. HOWARD v. SUPERIOR COURT OF PACIFIC COUNTY. (No. 13148.) (Supreme Court of Washington. Nov. 29, 1915.) 1. CRIMINAL LAW 108-VENUE-CONSTITUTIONAL AND STATUTORY PROVISIONS. Under Const. art. 1, § 22, providing that in criminal prosecutions accused shall have a right the county in which the offense is alleged to to a speedy public trial by an impartial jury of have been committed, an accused has a right to be tried in the county in which the offense is alleged to have been committed. Law, Cent. Dig. 88 220-226, 230, 231, 234; Dec. [Ed. Note. For other cases, see Criminal Dig. 108.] 2. CRIMINAL LAW 108-VENUE-CONSTITUTIONAL AND STATUTORY PROVISIONS. Under Laws 1911, p. 617, § 1, providing that no judge of a superior court shall hear or established that he is prejudiced against any partry any action or proceeding when it shall be ty, and that in such case he shall forthwith transfer the action to another department of the same court, call in a judge from some other court, apply to the Governor to send a judge, or, if the convenience of witnesses or the ends of justice will not be interfered with, and the action is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court, an accused does not by applying for a change of judge because of prejudice waive his constitutional right to be tried in the county where the offense is alleged to have been committed, and the presiding judge cannot send the case to the superior court of another county, unless ac For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cused expressly consents to be tried in such oth-cused may waive this right, and that he does er county. so when he asks a change of venue. This, [Ed. Note.-For other cases, see Criminal however, is not an application for a change Law, Cent. Dig. §§ 220-226, 230, 231, 234; of venue; but only an application of the Dec. Dig. 108.] Department 2. Original prohibition proceeding by the State, on relation of J. N. Howard, against the Superior Court of Pacific County. Writ issued. Geo. D. Abel, of Hoquiam, W. H. Abel, of Montesano, and John T. Welsh, of Raymond, for relator. W. V. Tanner and John M. Wilson, both of Olympia, for respondent. accused to be tried before another judge; which, under our system of interchange of trial fudges, can be readily accomplished without any change of venue. It is contended by the Attorney General, appearing in behalf of the superior court of Pacific county, that an application for a change of judge made under the act of 1911 above noticed is, in effect, an election to submit to a trial in another county, providing the resident presiding judge so decides. This contention is rested upon the following provision of that act: PARKER, J. The relator seeks by prohibition in this court to prevent the superior court of Pacific county from transferring to the superior court of Lewis county for trial In such case the presiding judge shall forthwith transfer the action to another dea case pending against him in the superior partment of the same court, or call in a judge court of Pacific county, wherein he is charg- from some other court, or apply to the governor ed, with others, by indictment, with the to send a judge, to try the case; or, if the concrime of burglary in the second degree, al-venience of witnesses or the ends of justice will leged to have been committed in Pacific action is of such a character that a change of not be interfered with by such course, and the county. venue thereof may be ordered, he may send the case for trial to the most convenient court." Chapter 121, p. 617, § 1, Laws of 1911. This seems to give to the resident presiding The relator filed in the case in the superior court of Pacific county his affidavit of prejudice against the resident presiding judge of the superior court of Pacific county, com-judge the power to dispose of the application plying in all respects with the provisions of chapter 121, p. 617, Laws 1911, stating that "he cannot have a fair and impartial trial before such judge," and praying "that the judge of some other superior court of Washington be called in to try every and all proceedings in the said cause." This affidavit and application being presented to the resident presiding judge, he announced his decision to transfer the case for trial to the superior court of Lewis county. Thereupon counsel for the relator protested against the transfer of the case for trial to another county, claiming the constitutional right in re lator's behalf to have the case tried in the superior court of Pacific county, that being the county in which the offense is alleged to have been committed. [1] Section 22, art. 1, of our Constitution provides: "In criminal prosecutions, the accused shall have the right to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed. That an accused has by this constitutional provision the right to be tried in the county in which the offense is alleged to have been committed seems too plain for argument. It was so held in State v. Carroll, 55 Wash. 588, 104 Pac. 814, 133 Am. St. Rep. 1047, 19 Ann. Cas. 1234. [2] It is not seriously contended to the contrary; but the real contention is that the relator has waived this right by having made an application for a change of judge because of the prejudice of the resident presiding judge of the superior court of Pacific county. for change of judge in either one of four ways, the latter of which is that "he may send the case for trial to the most convenient court." This, however, is not a case in which there can be ordered a change of venue, except by express consent of the accused. We do not think the accused is bound to waive his constitutional right of being tried in the county in which the offense is alleged to have been committed in order to avail himself of the right to challenge the resident presiding judge because of his prejudice. To hold otherwise would compel the accused to forego this constitutional right in order that he might secure trial before a judge free from prejudice. In view of this positive constitutional guaranty, we feel constrained to construe the language of the act of 1911 above quoted as meaning no more than that the resident presiding judge may "send the case for trial to the most convenient court" only when the accused expressly consents to be tried in a county other than the one "in which the offense is alleged to have been committed." We think the act is readily susceptible to this interpretation, and that any other would impute to the Legislature an intent to violate at least the spirit of the Constitution. This, of course, we will avoid when possible. Some contention is made rested upon sections 2018 and 2019, Rem & Bal. Code, relating to change of venue. We think, however, those sections have no application to the problem here for solution, since the relator has not asked for a change of venue, and has not thereby waived the constitutional right |