case, and thereafter the plaintiffs appealed | which had been left with him in escrow, but therefrom. On September 8, 1916, Malloy, as party of the first part, and the Connellys, as parties of the second part, entered into a written contract for the sale of the farm and personal property thereon, which, in so far as we need here notice its terms, reads as follows: "And the parties of the second part agree to purchase said real estate and personal property from the first party and to pay therefor the sum of $7,500.00, at the times and in the manner as follows: One thousand dollars cash contemporaneous with the execution of this instrument, the receipt whereof is hereby acknowledged; and three thousand dollars within sixty days after the date the first party has furnished the second party with an abstract showing said title to be clear and merchantable, except Hamisch mortgage, and to execute at the time the said abstract is furnished showing said title clear and merchantable two notes for $1,750.00 each, one payable on or before three years after date, and one note due on or before five years after date. "It is further agreed by and between the parties hereto, that the first party is to execute and deliver to E. A. Williams, a warranty deed and bill of sale of the above described real and personal property, to be held by him in escrow to be delivered by him to the second parties upon their compliance with this agreement. "It is further agreed by and between the parties hereto, that the second parties will execute and deliver said notes for $3,500.00 to E. A. Williams to be held in escrow by him, to be delivered to the first party as soon as the title to said land is found to be clear and merchantable, and at the same time the said deed and bill of sale are delivered to the second party. * * "This contract is to be left with the deed, bill of sale, notes, and mortgages in escrow in the hands of E. A. Williams." There was no forfeiture or other provision in the contract, referring to or controlling in any respect the rights of either of the parties as against the other, in case of failure of performance, or in case of rescission of the contract for any cause. On the day of the entering into the contract, the Connellys paid to Malloy $1,000 upon the purchase price of the farm, and executed the notes, which were left with Williams in escrow with the other papers, as agreed upon. Soon thereafter, the Connellys moved into the house upon the farm, where they resided with Malloy until the rescission of the contract occurred. November 1, 1916, or shortly prior thereto, the Connellys informed Malloy, in substance, that they desired to rescind the contract, bave him keep the farm and personal property, and return to them the $1,000 paid upon the purchase price. This was at a time when the Connellys were not in default as to the $3,000 installment to be paid upon the purchase price, since the 60 days for the payment thereof had not expired. Malloy then told the Connellys, in substance, that they On that he (Malloy) would not return the $1,000. Malloy then moved the Connellys off the farm to a neighbor's, with whom they had been stopping prior to the making of the contract, using his team and wagon for that purpose, and thereupon resumed exclusive possession of the farm and personal property, which he has retained ever since. There was thus left unsettled between them only the question of the right of the Connellys to have the $1,000 theretofore paid upon the purchase price, or some portion thereof, returned to them. These, in substance, are the facts found by the trial court; and we think such findings are well supported by the evidence. The Connellys being unable to induce Malloy to return the $1,000, or any portion thereof, in May, 1917, commenced this action, seeking its recovery. In their complaint they seek such recovery upon three grounds: (1) Upon the ground of false representations made by Malloy, inducing them to enter into the contract; (2) upon the ground of failure on the part of Malloy to furnish an abstract, showing good title in him, as agreed upon; and (3) upon the ground that the contract had been rescinded by mutual consent of all of the parties thereto. These grounds, as pleaded in the complaint, counsel for Malloy insists, constitute three causes of action, though they were all relied upon by the Connellys to effect a single recovery of the $1,000. The ground of false representations inducing the Connellys to enter into the contract, and the failure of Malloy to furnish an abstract, as agreed upon, apparently were not claimed by the Connellys as grounds for the rescission of the contract, in their talk with Malloy at and prior to November 1, 1916; but these grounds are claimed by them to have then existed, entitling them to rescind the contract. The trial court awarded judgment upon the theory that there was a mutual rescission of the contract on November 1, 1916, entitling the Connellys to have the $1,000 returned to them, less recoupment damages resulting to Malloy from the Connellys occupying the premises, and the terms of the contract, inducing him to refrain from doing the necessary fall work upon, and attending to the necessary affairs of the farm, which he would have done and attended to during their occupancy of the premises, but for his reliance upon the contract, as he had a right to do, before the time of its rescission. [1] It is contended in behalf of Malloy that the Connellys have no right to the return of any portion of the $1,000 paid upon the purchase price, because the contract was rescinded at their instance. The argument seems to be that the Connellys are in the same position as they would have been if they had abandoned the premises, and the contract, without good cause, and without acquiescence were three causes of action pleaded, in substance, in the complaint, as above noticed; and that they were inconsistent. We have noticed that there was only the single recovery of the $1,000 which had been paid upon the purchase price, sought by the Connellys. We are unable to see wherein the three grounds of recovery pleaded are inconsistent. Proof supporting any one of these grounds of recovery would not necessarily contradict proof supporting either of the other grounds of recovery. In Starwich v. Ernst, 100 Wash. 198, 170 Pac. 584, Judge Fullerton, speaking for the court, well stated the law, as follows: their rights would have been under such an [claim of recovery upon. The motion to this abandonment of the premises and the con- effect was rested upon the theory that there tract, we think from the fact that Malloy acquiesced in the Connellys' requested rescission of the contract, as we think he did by voluntarily taking them off the place, assuming exclusive possession thereof, and telling them to go to Williams and get the notes, that he thereby placed himself in a position where he cannot now rightfully claim that there was such an abandonment of the farm and the contract, by the Connellys, as to deprive them of the right to have the $1,000, or some portion thereof returned to them. We are to remember that there were no terms in the contract, either of forfeiture or of any other nature, defining the rights of the parties with reference to the $1,000 paid upon the contract, in case of failure of performance or rescission. We also note that the evidence tends strongly to show that Malloy, at the time of the rescission of the contract, intended to pay back to the Connellys some portion of the $1,000, after deducting the loss he had suffered by reason of his reliance upon the contract before its rescission. His admissions thereafter made, as testified to by apparently disinterested witnesses, point to this conclusion. In Jones v. Grove, 76 Wash. 19, 135 Pac. 488, Judge Main, speaking for the court, said: "Where a contract for the sale and purchase of real estate has been rescinded, the law restores each of the parties to his original status. The vendor is entitled to the possession of the property if it has not already been restored to him, the rent if any, and damages for the breach. The purchaser has a right to the refund of the money paid under the contract, together with interest. Maffet v. Oregon & C. R. Co., 46 Or. 443, 80 Pac. 489; Bernardo v. Soderman, 19 Cal. App. 161, 124 Pac. 866; Pedley v. Freeman, 132 Iowa, 356, 109 N. W. 890, 119 Am. St. Rep. 557; Lytle v. Scottish American Mortgage Co., 122 Ga. 458, 50 S. E. 402." This was said with reference to a sale contract which did not contain any forfeiture or other provision controlling the rights of the parties upon failure of performance or rescission. This view of the law was adhered to in Jackson v. White, 177 Pac. 667. We are of the opinion that the Connellys became entitled to the return of the $1,000 paid upon the purchase price, less such recoupment damages as Malloy might be able to show he suffered, growing out of the transaction because of the failure of the consummation of the contemplated sale of his farm; and that it simply became a question of restoring the parties as near as possible to the position they were in at the time of the making of the contract.' [2] Contention is made in behalf of Malloy that the trial court erred in refusing to require counsel for the Connellys to elect as to which of the three grounds pleaded in the complaint they would base their one result and giving rise to but one liability, "Separate and distinct acts, culminating in do not require statement in separate counts or make the doctrine of election applicable. All can be united in one complaint as one cause of action. Proofs may be admitted upon all of them, and a recovery may be had if any one or more are found to be proven. Any other rule would amount to a denial of justice. It would be to compel a plaintiff to elect between different grounds of liability and, at his peril, pursue that one to the exclusion of the others. Such is not the rule in this jurisdiction, as we have several times announced. Hutchinson v. Mt. Vernon Water & Power Co., 49 Wash. 469, 95 Pac. 1023; Bernot v. Morrison, 81 Wash. 538, 143 Pac. 104, Ann. Cas. 1916D, 290; O'Donnell v. McCool, 89 Wash. 537, 154 Pac. 1090." It seems quite plain to us that neither of these grounds, upon which recovery is sought, is inconsistent with either of the others. The trial court therefore did not err in refusing to require an election, as asked for by counsel for Malloy. [3] It is contended in behalf of the Connellys, upon their cross-appeal, that the trial court erred in awarding to Malloy $200 as recoupment damages. We do not find in the record any timely exceptions made in behalf of the Connellys to the court's finding that Malloy was damaged in the sum of $200, growing out of his reliance upon the contract after its making and prior to its rescission. However, we are convinced by the evidence, as the trial court was, that Malloy was so damaged at least in that sum, as a direct result of the existence of the contract, and his reliance thereon prior to its rescission, as he then had a right to rely upon it and act accordingly. The contention seems, however, to be directed more particularly against the several items of damage so claimed by him, as pleaded in the trial amendment to his answer, aggregating the sum of $1,560. It may be conceded that the larger portion of these items would, in no event, be recoverable by him. But we think that at least $200 of the amount so claimed was for items upon which he was entitled to damages by way of recoupment. For instance, by reason of his pellant's case. They had abandoned the place, and he was willing that they should receive their notes and that he should retain the $1,000 as liquidated damages. The fact that the Connellys moved off after this conversation is a circumstance tending to show that, if there was a mutual rescission, it was upon the terms proposed. reliance upon the contract, and the prospect | they might go to his attorneys and get their of consummation of the sale, he refrained notes. It sustains, rather than destroys, apfrom hauling and placing upon the ground a large amount of fertilizer until it was too late in the fall to do that work. He also refrained from doing fall plowing until it was too late. He also refrained from doing a considerable amount of contemplated repairing upon the place-all of which he would have done to his advantage during the time the contract was in full force, had he not been relying thereon. He also suffered some damage by the breaking of his wagon by the Connellys. They had the use of the house as a home for the period they were there, and also some use of the horses which were upon the place. These are among the items of damages claimed by Malloy which we think he had a right to an award upon. The evidence is not very satisfactory as to the actual damage suffered by him, but it shows that he did suffer loss to the extent of $200, which he was entitled to have deducted from the $1,000 paid upon the purchase price. [4] Some contention is made that the court erred in allowing the amendment during the trial, to Malloy's answer, setting up these items of damages, and claiming recoupment thereon. This was clearly a matter within the discretion of the trial court, which it seems quite plain to us it did not abuse in allowing the amendment to be made. The objection to the title was raised by counsel after the abandonment. It is no more than a pretense and a subterfuge, and, besides, appellant had in law a reasonable time to meet the objections. The case should have been reversed and remanded, with judgment for appellant in the sum of $1,000. BELL v. LILLIBRIDGE. (No. 15127.) MASTER AND SERVANT 289(28)—INJURY TO Whether the employé of a threshing machine operator was negligent in placing his hand where it was caught in a chain and sprocket wheel from which the guard had been reThe judgment is affirmed. Neither party moved, while the employé whose regular work will recover costs in this court. was about the separator and not about the engine was assisting in starting the engine, MOUNT, FULLERTON, and HOLCOMB, held for the jury under the evidence. JJ., concur. CHADWICK, C. J. (dissenting). To sustain the judgment rendered in this case, the court must hold that there was a mutual rescission of the contract. That there was no rescission seems to me to be too plain for argument. The holding of the majority is sustained by a finding that, when the Connellys told Malloy they were going to leave the place, he hauled them to a neighbor's in his own wagon and with his own team, and thereafter cared for the place and the stock that was on it. It is not made clear that he could have done other than he did. He could not restrain his vendees by force. If he had attempted to do so, he would have been guilty of an assault. If he had permitted them, especially the lady, to walk down the big road, he would have been rude. The farm and property, especially the live stock, had to be cared for. He did no more than prudence dictated and humanity demanded. In other words, he acted as a gentleman would, and must now pay a penalty for his politeness. This may be the law, but it does not consist with the rules of polite society. I do not attach importance to the testimony of the Connellys that Malloy agreed that MOUNT, J. On October 30, 1916, the plaintiff was injured by having his hand and wrist caught in a chain which ran over a sprocket wheel upon a tractor engine. He brought this action for damages. Upon issues joined the case was tried to the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for $4,000. The defendant has appealed from that judgment. At the close of the respondent's evidence, and again at the close of all the evidence, motions were made for a directed verdict. These motions were denied. After the verdict a motion was made for judgment notwithstanding the verdict. This motion was also denied. The appellant insists that the valve he reached under the engine with his left hand and at the same time placed his right hand against the sprocket wheel of the oil pump where the covering had been removed, and, there being a defective link in the chain, his hand was crushed in the sprocket wheel. Upon the left side of the engine there was a running board about 18 inches wide which extended from the front of the engine on the left side back to or near the flywheel. This running board, when a man was standing close by the side of the engine, came down to about his shoulders. In order to reach the valve underneath the engine it was necessary for him, therefore, to stoop slightly to see the valve. law in not seeing that the guard over the sprocket wheel had been removed. This is his sole contention. He bases this contention upon a number of cases from this court, where we have said, in effect, as in Beltz v. American Mill Co., 37 Wash. 399, 79 Pac. 981, Olson v. McMurray Cedar Lumber Co., 9 Wash. 500, 37 Pac. 679, and other cases of that same character, that "men, when they are working around dangerous machinery, must notice. Their faculties and senses are given them for the purpose of self-preservation, and they must exercise them to a reasonable extent." court erred in denying these motions. No other errors are presented. This necessarily involves a consideration of the facts in the case. They may be briefly stated as follows: In the year 1916 the appellant was operating a threshing machine for threshing wheat in Alberta, Canada. During the fall of that year the respondent was employed to attend the separator. Another man was employed to attend the tractor which furnished the motor power for the separator. Before commencing threshing the respondent assisted the engineer in repairing the tractor. The respondent had some experience as a mechanic. This tractor was what is known in the record as a 30-60 oil-pull kerosene Rumely tractor. Upon the left side of this tractor The appellant contends that the respondwas a flywheel. Upon the shaft of the fly-ent assumed the risk, and that he was guilty wheel was a small sprocket which operated of contributory negligence as a matter of a sprocket chain to an oil pump below the flywheel and a little forward thereof. This sprocket chain and sprocket wheel which ran the oil pump were protected by a metallic covering, or guard. When the respondent and the engineer repaired the tractor before the threshing season began, this metallic covering over the sprocket chain was taken off, repaired, and replaced in its proper position. At the trial the respondent testified that he did not know that this guard, or metallic covering, over the sprocket wheel, had been taken off, but as a matter of fact it had been off for several days prior to the accident. The tractor engine was run by kerosene. In order to start the engine in operation, it was necessary to put some gasoline in the carburetor, take hold of the flywheel, and give it a turn, when the engine would start by the use of the gasoline. It was then necessary to turn on the kerosene which kept the engine going. It was sometimes difficult to start the engine. After the respondent had been employed by the appellant for about a month, and on the 30th day of October, 1916, when it is conceded that the season was getting late, snow was beginning to fall, and the appellant was urging his men to make haste with the threshing of the grain, after the machine had been in operation for two or three hours, the supply of kerosene became exhausted, the engine was stopped, a new supply of kerosene was obtained, and it was necessary to start the engine. The respondent testified that he had been told that it was a part of his duty to help start the engine. Upon this occasion, when the engine was ready to be started, the respondent gave the flywheel a turn, at the request of the engineer, and the engine apparently started; but it began to sputter, which indicated that it was not getting kerosene. He had been told when that condition arose it was necessary to open a little valve underneath the engine so that the kerosene might flow into the carburetor. In attempting to open this So the question here is whether, under the facts shown upon this record, the respondent was guilty of contributory negligence as a matter of law and he assumed the risk. The evidence, we think, conclusively shows that a guard over this sprocket wheel and chain was the regular factory equipment of the machine. The evidence on the part of the respondent shows that he had helped to repair this guard and place it in position after it was repaired, and that at the time of the accident he did not know that it had been removed, and did not notice that the chain was exposed at the time of the accident. The primary duty of the respondent was to attend to the separator, which was usually about 80 feet away from the tractor. It is conceded that prior to the time of the accident the appellant had urged his men to make haste to finish the work and keep the machinery in operation. It was a part of the respondent's duty to help start the tractor when it was required to be started. So that the principal question in the case necessarily is: Should the respondent, at the time he undertook to open the valve under the tractor after the engine had been started in operation, have seen that the guard over the sprocket wheel had been removed? It is argued by the appellant that this sprocket wheel was in plain view of the respondent, and that if he did not see it it was his duty to have done so. We think there are circum stances in this case which make that a ques- | submitted the question to the jury, and that tion for the jury. The respondent did not the question was not one of law. The judgment must therefore be affirmed. CHADWICK, C. J., and PARKER, FULLERTON, and HOLCOMB, JJ., concur. GENTRY v. KRAUSE. (No. 15163.) (Supreme Court of Washington. April 14, 1919.) 1. LANDLORD AND TENANT 331(2) FARM know that the guard had been removed. He had, in the early part of the season, helped to repair the guard and place it in position. When he started the engine by turning the flywheel he was necessarily standing close to the flywheel, which was a little above his head. In order to start the flywheel it was necessary for him to use much force to turn the wheel. Immediately when the engine started it began to sputter, which indicated that he must open the valve underneath the engine in order that kerosene might be permitted to flow into the carburetor. It was necessary, of course, to do this quickly. His attention must have been riveted upon the position of the valve, and he apparently reached quickly for the valve with his left hand, intently looking to locate that valve. His mind was not upon other parts of the machinery, and we think he had a right to suppose that the other parts of the machinery were in their ordinary condition, unless the condition was so obvious that he must have seen it by casual observation. When standing erect, close to the tractor, he could agreement to give him one-half of the crop, and Where owner leased farm upon lessee's not see the sprocket wheel or chain because lessee thereafter delivered his own hay in perof the running board. Whether the condi- formance of owner's agreement to sell hay to tion was so open and apparent that a casual third party, the price received for such hay by observer would have noticed it was a ques-owner was properly offset against items claimed tion for the jury. As stated in Labatt's Master & Servant, vol. 4, § 1322: "If it was not a recognized fact of the functions of the servant to look out for dangerous conditions of the same kind as those which caused the injury (see section 1338 et seq., post), and his chances of observation were merely such as were casually afforded by occasional proximity to the defective instrumentality, it is for the jury to determine whether he ought to have discovered the conditions." While the evidence shows that the respondent had assisted in starting the engine upon different occasions, his testimony was to the effect that he had never before been required to open the valve underneath the engine, and that he did not know the guard had been removed from the sprocket wheel, and did not notice, when reaching for the valve underneath the engine, that the condition of the sprocket wheel had been changed since he saw it last. We are satisfied, therefore, that whether he did see that the guard over the sprocket wheel was removed, or whether he should have seen it, under the circumstances, was a question of fact to be submitted to the jury. No complaint is made that the question was not properly submitted to the jury, 'but it is contended by the appellant that the court should have directed a verdict as a matter of law. Where farm lease required lessor to furnish lessee a comfortable home, lessee, upon breach of such agrement, was entitled to difference be tween rental value of a comfortable home and the rental value of the uncomfortable house in which he was compelled to live by reason of lessor's breach. 2. SET-OFF AND COUNTERCLAIM 28(1)— FARM LEASE-BREACH-DAMAGES. by owner in his action against lessee for breach PEAR. 238(1)—APPEAL-FAILURE TO AP MOUNT, J. This action was brought to recover from the defendant $310.50 alleged to be due upon several causes of action. For answer to the complaint the defendant denied any indebtedness to the plaintiff, and alleged by cross-complaint that the plaintiff was indebted to the defendant upon several causes of action. Upon issues joined the case was tried to the court without a jury, and resulted in a judgment in favor of the defendant for $70.71. The plaintiff has ap We are satisfied that the court properly pealed from that judgment. |