On cross-examination he testified: "Q. Calling your attention to defendants' Exhibit No. 1, being the loose-leaf ledger, take any one of the items and find here the date; take the item right there, January 26th. Then you see a number out here, 5568; then you see the amount. Did you ask them what those And you found out that they were delivery numbers meant? A. Why, I found out. Q. stens job was concerned you could tell by lookslips? A. Yes, sir. Q. And so far as the Caring at those numbers where the lumber went, because the numbers gave you the exact knowledge? A. Correct. Q. So, when you told Mr. Flick the books did not show, the books did show, didn't they? If the books show 6551, and if 6551 was the Luzerne Apartments, then it A. I didn't state anything else. did show it?

"clerk of works" at their own expense. The owner, Mr. Carstens, employed Earl Baumgartner as clerk of works, informing the Central Realty Company that he "wanted him to check up everything that went into the building and take care of his interests." Baumgartner performed such services for Mr. Carstens, and thereafter for the executors. W. J. Bruggeman was president of the Central Realty Company, and through associations with Carstens, as directors of the same bank and otherwise, they were well acquainted, and Carstens knew that the Central Realty Company was engaged in constructing two buildings for other persons, at the same time the Luzerne was being built. Baumgartner also knew of the construction of the other two houses. The Central Real-Q. Well, the books did show, didn't they? A. Why, certainly. Q. And you examined, not ty Company purchased lumber and building only the loose-leaf ledger, but you examined material for the Luzerne, and some for oth- all the delivery slips? A. Yes." er buildings, from appellant, who was engaged in the lumber business in Seattle. With each load delivered at the several jobs, the driver took delivery slips in duplicate, each numbered separately and consecutively, which showed the character of lumber in the load, and where and to whom delivery was made. The originals of the slips were marked "Customer's Invoice," and were kept by the customer, while the duplicates were marked "Duplicate must be returned to office, signed by customer or his representa

tive. Received O. K.

On the 1st of each month appellant mailed to the Central Realty Company a statement showing the date and amount of each delivery, separately stated, giving date and amount for all the jobs during the previous month. In due course, and about the 10th of the month, the bill would be returned accompanied by a personal check signed by Ernest Carstens, or, later, by the executors of his estate, for the exact amount due; each check having the words "building account" The lumber furnished for the Luzerne written after the signature. The amount of building was all checked up by Baumgartner, the check was credited by appellant on its and the duplicate delivery slips "O. K.'d" books to the Central Realty Company, thus and signed by him, and also by Charles balancing the account, whereupon appellant Drake, secretary of the Central Realty Com- stamped the bill "Paid" and returned it to the Central Realty Company. One of the pany, and returned by the driver to appellant's office. The original slips were kept by which it had been assigned for collection, monthly accounts was paid to a bank to Baumgartner, who would first make entries of them in a tally journal belonging to the similar to the others. The last check, dated but this transaction was in all other respects Carstens, and then file them in the records June 10, 1916, and the only one issued by of their office at the building. Appellant kept but one account with the Central Real- the executors, paid the account in full up to ty Company, in which was entered charges notice of lien was filed and that is involved June 1, 1916. for all lumber delivered at all three build-in the action, viz. $961.44, is for lumber deings. The account, on a loose-leaf ledger, livered for and used in the Luzerne Apartwas kept so that one could easily segregatement building subsequent to June 1, 1916, as and determine the amount charged for ma

The amount for which the

terial delivered to each of the buildings by to which there is no dispute either as to the reason of the entry thereon of the date and amount or its value. However, the sum total number of the delivery slips. That this is of all the checks of Carstens or his executors so is shown by the testimony of the book-received by appellant from the Central Realkeeper of the Carstens estate, who, upon exceeds the value of all material furnished ty Company in the manner above explained, being called as a witness by the executors, by appellant that was used in the Luzerne building by the sum of $160.40. Judgment was awarded by the trial court against appellant and in favor of the executors in this sum of $160.40, on the theory that appellant should account to the executors, and not to the Central Realty Company, for all the Carstens checks.

said:

"I had no difficulty in obtaining a segregation between the Luzerne Apartments and the Seventy-Ninth street job. ** * Q. They were on the same account, but they were separated as far as entries were concerned? A. Yes, sir. Q. How did they distinguish for you between the Seventy-Ninth street job, and any other job that the Central Realty Company was doing, and the Luzerne Apartments? A. If I

The answer and cross-complaint of the executors stated a defense to appellant's cause

tors to the judgment appealed from, because therein, among other things, they alleged:

"That during the course of said deliveries said plaintiff and the said contractor, Central Realty Company, through its officers, entered into a secret and unlawful agreement, whereby said Schwager-Nettleton Mills, through its officers, agreed to rebate to said Central Realty Company $1 a thousand for all No. 2 common lumber that it might be possible to work into the job, in lieu of the No. 1 lumber first agreed upon. That as a consideration for said acts, and in furtherance of the unlawful scheme entered into between these parties, said plaintiff and said Central Realty Company, through their respective officers, agreed that the checks issued by Ernest Carstens should be used and deflected in part to the payment of the personal bills of the Central Realty Company, which course of procedure was adopted with checks numbered 146, 306, 496, 77, and 274, issued respectively February 9, 1916, March 10, 1916, April 10, 1916, May 10, 1916, and June 16, 1916, in form as detailed in Schedule B, hereto attached and made part thereof."

If the proof showed that appellant by its officers entered into and carried out any such unlawful scheme with the Central Realty Company through its officers, by which there was procured the issuance and delivery to the Central Realty Company, and thence to the appellant, of the checks in question, that conduct would in the law place appellant in direct relations with the makers of the checks, and impose upon it the responsibility to account therefor. But an examination of the evidence fails to show any occasion for such charges. On the contrary, it is clear to us from the rec

"We did not know but what Ernest Carstens was advancing some money to the Central Realty Company over and above the amount of the lumber that went to that job. We could have ascertained whether the check was overpaying what had gone to the Luzerne Apartments, but we did not. We never notified him he was overpaying. There wasn't any occasion for it, as far as we could see in the ordinary course of business. There was never a question raised in our mind. We never received any letter from Ernest Carstens, authorizing us to so apply these amounts, nor did we receive any from Mrs. Carstens, nor Julius Carstens, nor from Mr. Bruggeman or Mr. Riley."

It is important here to determine, as we do, only, if the Carstens estate by some one's carelessness or misunderstanding has suffered a loss, whether appellant is in any way responsible for it. We are of the opinion it is not. In opening, appellant proved its case.

The judgment is reversed, and the cause remanded, with directions to the lower court to enter judgment foreclosing the lien.

CHADWICK, C. J., and MACKINTOSH, MAIN, and TOLMAN, JJ., concur.

CITY OF SPOKANE v. FISHER.
(No. 15196.)

(Supreme Court of Washington. April 4, 1919.)
INDEMNITY 13(1)-LANDLORD'S LIABILITY
FOR DEFECTIVE PREMISES - TRAPDOOR IN
SIDEWALK.

Department 1.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

ord that appellant furnished for the Lu-ing, but has not relinquished entire control of A landlord who has rented part of a buildzerne building only the material ordered by the premises, is liable over to the city for damthe Central Realty Company, sold it at the ages the city has been compelled to pay on neusual prices, allowed the usual discount for count of personal injuries sustained by a pedescash, which was stated in the bills furnish- trian because of the sudden raising of a traped to the Central Realty Company 10 days be- door in the sidewalk controlled by the tenant, fore payments by it, all within the knowledge the landlord having secured from the city the of Mr. Baumgartner, the private, confiden- privilege of installing such trapdoor for the tial employé of the Carstens. The proof in purpose of access to his heating plant. the case is silent as to any conversation or Mackintosh, J., dissenting. communication, direct or indirect, between the appellant's officers or employés and Mr. Carstens or his executors concerning the material furnished or the payments received. Appellant sold and charged the material for this and the two other jobs to the Central Realty Company, from whom it received its pay, and, while that pay was by means of the Carstens checks, they were delivered to appellant or its assignee by the Central Realty Company. Appellant never received notice from any one to apply the checks otherwise than as they were applied and as they had the right to apply them. TOLMAN, J. The city of Spokane was Concerning the transaction, Alvin Schwager, made defendant in a suit for personal insecretary-treasurer of appellant, testified: juries, brought by one Nicolini, who alleged

Action by City of Spokane against Fred v. Fisher and another. Judgment for plaintiff, and the named defendant appeals. Judgment affirmed.

Samuel R. Stern, of Spokane, for appellant. J. M. Geraghty and Alex M. Winston, both of Spokane, for respondent.

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

that he fell, and sustained the injuries com- [ her expense by a janitor employed and paid plained of, by reason of the raising of a by her. The pipes which conveyed the heat

trapdoor in the sidewalk on First avenue in that city, at the instant he was about to step upon it. Following the service of summons and complaint upon it in that case, the city gave notice to appellant, who was then the owner of the premises abutting upon the sidewalk where the accident occurred, calling upon him to assume the burden of defending that action, and advising him that, as he was responsible for the installation and maintenance of the trapdoor, the city would hold him for any recovery against it in that case, together with the costs and expenses it might incur in defending. Appellant did not appear in that action; and, while his attorney rendered some assistance to the city it was stipulated that appellant should waive no right thereby. Nicolini recovered a judgment against the city, which, being small, it paid without appealing from the judgment, and then brought this action to recover from appellant the amount so paid, together with the amounts expended by it in defending the Nicolini case. The trial court made findings and conclusions in accordance with respondent's theory of the case, and entered judgment against appellant for $473.08, which included $357.70 paid in satisfaction of the judgment and costs in favor of Nicolini, and $79.60 expended by the city in defending that action, from which judgment this appeal is taken.

to the upper floors passed through and ex. tended across both storerooms on the main floor, and as to the one then occupied, the evidence clearly shows that these pipes furnished ample heat at all times for the purposes of the tenant, and although there was a small radiator in the rear of that store room, it was never turned on or used. The tenant testified that his contract with the landlord was silent as to the furnishing of heat, and that he paid nothing directly for the heat which he obtained by the means above set forth. The court found upon this subject as follows:

"That at the said time, to wit, the 17th day of September, 1916, and for a long time prior thereto, the purpose for which the said trapdoors and cellarways were used was to connect with a furnace in the basement of said building, and that the objects and purposes of said furnace were to heat the entire building aforesaid, both that part occupied by the defendant Graf, and either in person by reason of its being vacant, or that part occupied by the defendant Fisher, through his other tenants. That when the defendant Graf heated the upper stories of said building, of necessity she also heated the lower story, in that the pipes conveying the heat from the furnace to the upper stories passed through both storerooms on the ground floor of said building, and were extended across said storerooms longitudinally, and that, in the east store room thereof there was a radiator so connected as to furnish heat, and so installed with the said pipes as to furnish heat therefor. the present tenant of the east storeroom, who has occupied the same for some years, does not use the said radiator because, from the nature of its business, which is a seed business, it has no occasion for more heat than is furnished by the said pipes, and that the only manner in which under the conditions which existed the said heat could be furnished, and was furnished, for all the floors in said building, was by the bringing in of coal through said trapdoor in front of No. 921 First avenue, and the going into and opening of said trapdoors to place coal in the said cellarway and to put coal from the said cellarway into the furnace of said building, there being no entrance of said cellarway except by means of said trapdoors as aforesaid, and that as a matter of fact, the heat of said fur

That

Appellant by his assignments of error raises three questions: First, that the trapdoor was under the sole charge of his tenant (also joined as a defendant in this action), and was used solely for her purpose, and therefore he, as the landlord, cannot be held liable for the overt act of the tenant, of which he had no knowledge, and in which he in no wise participated; and in any event the judgment should be collected from the tenant; second, that the Nicolini judgment was not appealed to the court of last resort; and third, that there was improperly included in the judgment amounts paid by the city as fees to expert witnesses which are not recoverable. It is admitted, or appears without sub-nace has furnished, and does furnish, sufficient stantial dispute, that appellant was the own-stories of said building, and there has not been, heat for the tenant or tenants of the lower er of the premises abutting upon the sidewalk where the accident occurred, which consisted of a three story and basement building. The two upper stories were leased to the defendant Elizabeth Graf, who conducted a lodging house business therein. The first or street floor was divided into two storerooms, one of which was occupied by the Oriental Tea Company, the other being vacant at the time of the accident. In the basement was located the only heating plant in the building, which was used primarily to heat the lodging house, and was in sole

nor is there, any other method provided for heating the same, and that without heat the same would not be tenantable."

It must be borne in mind that the negligence of which Nicolini complained was the raising of the trapdoor referred to, by the janitor in the employ of the tenant of the upper floors without sufficient warning at the instant that he was about to step thereon. Authorities are numerous to the effect that had the injury occurred by reason of some defect in the trap door itself, or the manner

being primarily for the benefit of the land- [ the city was liable because it gave the proplord, he would, unless he had parted with the entire possession, be liable over to the city. Trustees, etc., v. Foster, 156 N. Y. 354, 50 N. E. 971, 41 L. R. A. 554, 66 Am. St. Rep. 575; Wabasha v. Southworth, 54 Minn. 79, 55 N. W. 818; New York v. Corn, 133 App. Div. 1, 117 N. Y. Supp. 514. But here we are concerned, not with any defect inherent in the trapdoor but with its negligent operation by a tenant and the question is, May the landlord, by anything less than a term lease, which wholly divests him of any and all control over the premises, escape liability for such negligent operation?

We conclude then that, as the finding quoted is amply sustained by the admissions in the answer, the evidence, and the reasonable inferences to be drawn therefrom, the holdFrom this the conclusion was drawn ing of the trial court was right upon this in that case that the city was liable, and if the main question in the case; and whatever

right the landlord might have as against the tenant, or an independent contractor, such right if any cannot be urged as a defense in an action brought by the city against him. Upon the second point raised, it need only be said that the judgment of the superior court was a valid one, and final unless appealed from. The city had given notice to appellant to defend, of which privilege he had not availed himself. We know of no rule of law which requires the city to appeal; and certainly appellant cannot be heard to complain after having declined to assume the burden of defense, which the city had ten

dered.

The third point raises the question as to whether fees in excess of the statutory witness fees, paid to expert witnesses, may be recovered. There being no law which places an expert witness on any different footing as to fees than that of any other witness, and no showing that such evidence could not be procured by subpoena without the paying of extra compensation, there is no authority to tax such fees as costs, and, if paid unnecessarily or voluntarily, they should not be recovered. Under the authority of Nelson v. Industrial Insurance Department, 176 Pac. 15, 4, the judgment must be modified by reducing it in the sum of $60, being the amount so paid.

Except as modified, the judgment is affirmed but neither party will recover costs in this court.

R

writing agreeing to hold the property in trust
for one year during which time plaintiffs could
redeem, plaintiffs delivered to defendants deeds
for examination only, and defendants had the
agreement, it was plaintiff's duty either to spe-
deeds recorded, but refused to execute trust
cifically enforce the constructive trust or redeem
the property within the year.

4. TRUSTS 371(1)-BREACH OF AGREEMENT
-ACTION TO ENFORCE-PLEADING.

In action for damages for breach of agree-
to execute a
ment, whereby plaintiffs were
writing agreeing to hold the property in trust
redeem, defendants having recorded deeds deliv-
for one year, during which time plaintiffs could
ered to them, but refused to execute trust agree-
ment, complaint held demurrable, in that it
failed to show that plaintiffs had been damaged,
or that they had offered to redeem within the
year.

MOUNT, J. The lower court sustained a demurrer to the plaintiffs' amended comMAIN and MITCHELL, JJ., concur. plaint. Plaintiffs elected to stand upon the CHADWICK, C. J., concurs in the result. allegations thereof, and the action was disMACKINTOSH, J., dissents.

HARDMAN et al. v. RYAN et al. (No. 15083.)

(Supreme Court of Washington. April 8, 1919.)

-

1. TRUSTS 96 CONSTRUCTIVE TRUST BREACH OF AGREEMENT.

missed. The plaintiffs appeal.

The action was commenced in January, 1917. The facts alleged in the complaint may be briefly summarized as follows: In the year 1915 the appellants were the owners of a certain farm valued at $50,000. This farm was incumbered by a mortgage of $10,000. A payment of $1,000, together with interest, was due in July of 1915. The respondents held a judgment for $7,500 against the appellants. An execution had been levied upon the property of the appellants, and the property was about to be sold to satisfy respondents' judgment. It is alleged that on July 28, 1915, the appellants and the respondents entered into an oral agreement to the effect that the appellants would deed the said farm and other property to the respondents by deeds absolute; that thereupon respond359(2)-CONSTRUCTIVE TRUST-ents would execute a writing agreeing to

Where, pursuant to oral agreement whereby plaintiffs were to deed property to defendants, judgment creditors, who were to execute a writing agreeing to hold the property in trust for one year, during which time plaintiffs could redeem, plaintiffs delivered to defendants deeds for examination only, and defendants had the deeds recorded, but refused to execute trust agreement, a constructive trust was created. 2. TRUSTS

ENFORCEMENT.

A constructive trust, based on breach of an oral agreement, may be specifically enforced. 3. TRUSTS 365(5)-CONSTRUCTIVE TRUSTSENFORCEMENT-TIME TO PROCEED.

Where, pursuant to oral agreement whereby plaintiffs were to deed property to defendants, judgment creditors, who were to execute a

hold the property in trust for one year, and
to either pay the interest and make the pay-
ment due on the mortgage, together with the
taxes, or obtain postponement thereof for the
period of one year; that within the year ap-
pellants might redeem certain portions of the
property upon the payment of stipulated pro-
portionate sums, if such payments were made