was the duty of the former to cause the cases to be brought to trial or to be dismissed so that he could prosecute his own case. His only excuse for failing to proceed with the trials is that he needed the respondent as a witness in the case. He testified that the respondent "had to corroborate a good many of my accounts and that I had to corroborate a good many of Mr. Toklas's accounts," and that he "was relying on the testimony of Mr. Toklas and on my own testimony in the case." It is obvious that, if he can establish his claim against Kemp and Schuler in this action with the respondent as a hostile party, he could have proven his case in the other suits, or, upon their dismissal, in suits which he himself could have prosecuted without the aid of the respondent as a witness. Of course, there can be no liability upon respondent in any event, unless the appellant has a valid claim against Kemp or Schuler, one or both. Those claims are the basis of this action. It is admitted that Kemp and Schuler are men of large means, and have at all times been financially able to respond to any judgment that might be obtained against them. We think that the failure of the appellant to pursue the course indicated pre cludes a recovery in this action. He assigned his claims for the purpose of the suits, and could have at any time resumed control over them. In other words, he could have terminated the agency or could have directed his attorney to proceed to trial. What recourse he would have had against the respondent if the cases had gone against him in whole or in part we need not determine. Moreover, the allegation that the actions were barred when this suit was commenced is not supported by the evidence. The record shows that the services were rendered and the money expended between April, 1898, and July, 1905, under a written contract, and that the cases were dismissed in March, 1909. The judgment is affirmed. DUNBAR, C. J., and PARKER and MOUNT, JJ., concur. (64 Wash. 285) V. ADAMS COUNTY MERCANTILE CO. WALLA WALLA LIVE STOCK CO. (Supreme Court of Washington. July 24, 1911.) 1. PRINCIPAL AND AGENT (§ 123*)-AUTHORITY OF AGENT-EVIDENCE-SUFFICIENCY. Evidence held sufficient to show that a ranch foreman was authorized to buy a baling machine. [Ed. Note. For other cases. see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. § 123.*] 2. FRAUDS, STATUTE OF (§ 89*)-SALES OF PERSONALTY. To satisfy Rem. & Bal. Code. 8 5290, invalidating oral contracts to sell goods for more than $50 unless the buyer receives a part of the goods, etc., there must be not only delivery by the seller. but an actual acceptance by the buyer with intent to take possession as owner. [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 165-173; Dec. Dig. § 89.*] 3. FRAUDS, STATUTE OF (§ 158*)-SALES OF PERSONALTY-ACCEPTANCE OF DELIVERYEVIDENCE-SUFFICIENCY. Evidence held to show that a buyer of out of the statute of frauds (Rem. & Bal. Code, machinery accepted delivery, taking a contract § 5290). [Ed. Note. For other cases, see Frauds, Statute of, Dec. Dig. § 158.*] CROW, J. This action was commenced by Adams County Mercantile Company, a corporation, to recover the purchase price of machinery sold to Walla Walla Live Stock Company, a corporation. From a judgment in plaintiff's favor, the defendant has appealed. The machinery consisted of an engine and hay baler. An oral contract of sale, for a consideration of $851, is claimed to have been made some time in May, 1909, by respondent through J. E. Carman, its president, to appellant through E. Crowley, its agent. Appellant owns a large ranch in Adams county, some distance from Ritzville, which was then in charge of Crowley, its foreman. Respondent claims Crowley, as appellant's authorized agent, purchased the engine and baler for use on the ranch. The case turns upon two contentions made by appellant: (1) That Crowley was not authorized to purchase the machinery as its agent; and (2) that the oral contract of sale was void under the statute of frauds. [1] On the first proposition we conclude the evidence is sufficient to sustain a finding of Crowley's authority to make the purchase as agent of appellant. Appellant's office and all of its principal officers were in the city of Walla Walla. Its Adams county ranch was in charge of its conceded agent Crowley, who as foreman managed the same, employed and discharged laborers, purchased supplies, and approved bills which appellant paid. While it is true no evidence appears to the effect that Crowley had theretofore purchased machinery of any considerable value, it does appear that, when negotiations were pending on the sale in question, the respondent's president, at Crowley's request, telephoned the appellant at Walla Walla to discuss the terms of the sale, manifestly in relation to the time of payment which was extended to October 1, 1909, and *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes that during the telephone conversation re, ent was to start and test the baler, there spondent was informed and advised that, if was further evidence that it was to do so the deal was satisfactory to Crowley, it when requested by appellant, that respondwould be satisfactory to appellant. The ent upon demand was to procure an expert deal thereafter consummated was closed for that purpose, who was to be paid by some time in May, 1909, by oral agreement appellant, but that appellant never requestwith Crowley, and respondent ordered the ed the expert or demanded a test of the engine and baler for delivery to appellant baler. It is not disputed that appellant's at the city of Ritzville. This evidence was employé hauled the machinery from Ritzsufficient to indicate that appellant directed ville to the ranch where it has since rerespondent to make a satisfactory deal with mained. Appellant knew the machinery was Crowley, and we think no further showing in its possession long prior to the commenceof his authority is necessary. Appellant ment of this action, and that respondent being a corporation was compelled to act claimed an absolute sale, delivery, and through agents and Crowley, its conceded acceptance. The trial judge who heard the agent in charge of the ranch where the ma- evidence undoubtedly concluded appellant chinery was needed and was to be used, not had retained possession a sufficient length only assumed to have, but did have, appar- of time to show an absolute acceptance ent authority to make the purchase. and claim of title as vendee. The controlling issues in this cause are issues of fact, and from a careful consideration of all the evidence we conclude the respondent has sustained the burden of proof imposed upon it. The judgment is affirmed. DUNBAR, C. J., and CHADWICK and MORRIS, JJ., concur. (64 Wash. 214) WINGARD v. COPELAND et al. [2] Section 5290, Rem. & Bal. Code, provides: "No contract for the sale of any goods, wares or merchandise, for the price of fifty dollars or more, shall be good and valid, unless the purchaser shall accept and receive part of the goods so sold, or shall give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing of the bargain be made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized." It is conceded the contract of sale was oral; that no earnest was given; that no part payment was made; and that no memoran (Supreme Court of Washington. July 17, 1911.) dum in writing of the bargain was signed. 1. VENDOR AND PURCHASER ($ 133*) - CONSTRUCTION OF CONTRACT-FEE-SIMPLE TITLE. The respondent contends, and the trial court Where land was subject by a deed to an necessarily found, the machinery was ac- easement giving another right to enter thereon cepted and received by appellant. It is well at any point by ditch or other waterway, consettled by the authorities that to satisfy duct water from a certain creek for any industhe statute there must be not only a delivery lish any suitable ditch, flume, or waterway not trial purpose and for irrigation, and to estabof the goods by the vendor, but also an actu- exceeding certain dimensions, and the further al acceptance by the vendee with an in- right to enter on the lands, and by suitable tention of taking possession as owner, and pipes placed in the ground conduct water from that this intent must be evidenced by un-ed to another, the owner was unable to convey any springs thereon, subject to like rights grantequivocal acts. Such intention if it exists "a full fee-simple title" as provided by the must appear from the attending facts and terms of a contract of sale. circumstances. [3] Without discussing the evidence in detail, we conclude it is sufficient to show that respondents were to deliver the machinery in Ritzville; that early in June, 1909, Crowley, appellant's agent, received the engine from respondent at Ritzville, and hauled it to the ranch; that a few days later, when the baler arrived, he also received and hauled it to the ranch; that some dispute arose between him and respondent as to a belt needed for the baler but not provided; that respondent informed him no belt went with the baler, whereupon he purchased a belt for which appellant made payment; that the engine and baler remained in appellant's possession at its ranch, and were never returned to respondent; and that for several weeks appellant made no offer to return them. While there was evidence to the effect that the respond [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 234-237; Dec. Dig. § 133.*] 2. VENDOR AND PURCHASER (§ 134*) — CONSTRUCTION OF CONTRACT-TITLE OF THE VENDOR "FREE AND CLEAR." Where a vendor engaged to convey full feesimple title, the further terms, "free and clear character," did not by enumeration of incumfrom any taxes, mortgages or other liens of any brances of a particular class exclude the idea that the title was to be free from all other incumbrances such as an easement to maintain water ditches or pipes thereon. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 250-254; Dec. Dig. 134.* For other definitions, see Words and Phrases, vol. 3, p. 2963.] 3. VENDOR AND PURCHASER (§ 130*)—“MABKETABLE TITLE." easement to another to enter on the land and A vendor whose lands were subject to an construct water ditches or water pipes from or across the land, under which a water pipe was maintained across the land, did not possess a marketable title; "marketable title " being defined as a term which, when applied to real estate, is used to designate a title free from rea sonable doubt. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 245, 246; Dec. Dig. § 130.* For other definitions, see Words and Phrases, vol. 5, pp. 4388-4390; vol. 8, p. 7717.] 4. VENDOR AND PURCHASER ( 130*)-CONSTRUCTION OF CONTRACT-MARKETABLE TI TLE. Where a vendor agreed to convey "full feesimple title to the land," which he could not do because of the existence of an easement, the question of "marketable title" was not involved. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 245, 246; Dec. Dig. § 130.*] Department 1. Appeal from Superior Court, Walla Walla County; Thos. H. Brents, Judge. Action by Charles L. Wingard against Grant Copeland and others. From a judgment for defendants, plaintiff appeals. Affirmed. Herbert C. Bryson and John H. Woodward, for appellant. Sharpstein & Sharpstein, for respondents. PARKER, J. This action was commenced by the plaintiff in the superior court under section 195, Rem. & Bal. Code, to recover from the defendants the purchase price of land in Walla Walla county and to compel specific performance of a written contract entered into by them for the sale of the land to the defendants. The defendants resisted the plaintiff's claim upon the ground that his title to the land is imperfect, and not such as he agreed to convey, and they asked for affirmative judgment against him in the sum of $100, being the amount paid by them as earnest money upon the contract price. A trial before the court resulted in a judgment in the defendants' favor annulling the contract, and awarded them judgment against the plaintiff for the amount of earnest money paid upon the contract. From this disposition of the case the plaintiff has appealed. The following facts are clearly established by the record, and we think are all that need be noticed in determining the rights of the parties. A written contract for the sale of land from appellant to respondents was entered into by the parties in March, 1909. The contract was in the form of a written offer made by appellant and accepted by respondents. The agreement as to the title to be conveyed was contained in the written offer of appellant as follows: "I hereby submit to you proposition of sale of my ten-acre tract southeast of Walla Walla about which we have been dealing. My price is $8,750.00 net cash free and clear of any commissions, this price to include all crops now seeded or to be seeded on said lands and a full fee simple title free and clear from any taxes, mortgages or other liens of any character." Upon accepting the offer, respondent paid to appellant $100 as earnest money upon the purchase price. The contract contemplated the furnishing of an abstract of title and the completion of the sale thereafter. The following among other things appear from the abstract, touching the condition of appellant's title: The land here involved lies in the E. 1⁄2 of the S. E. 4 of section 28, township 7 N., range 36 E. An owner of land in the W. 2 of this quarter section has an easement right in connection therewith under a deed thereto from a prior owner of the quarter section, in which deed such easement rights are described as follows: "Also, the right to enter upon the east half of said southeast quarter of said section twentyeight in said township and range and at any point by ditch, flume or other waterway conduct any or all the water from that certain creek called Yellow Hawk flowing through the same down, through and over said premises into and upon the herein before granted land and other neighboring anu adjoining land for milling, manufacturing or any other kind of industrial purpose and also, for irrigation and to that end to dig, construct, establish and maintain (but on condition that the same be kept in good order and repair) any suitable and convenient ditch, flume or waterway not exceeding ten (10) feet in width and also, at any point in said Yellow Hawk creek on said premises to build and maintain any good and sufficient dam, although the same should cause water to back up in said stream on other lands of the party of the first part; and also, the further right to enter upon any of the lands of said party of the first part in said section twenty-eight and also in section twentyseven, in said township and range and by suitable pipes placed in the ground to take and conduct water from any stream and springs thereon, subject to prior like rights heretofore granted to John B. Allen, his heirs and assigns to the hereby granted land for domestic and irrigating purposes thereon." Under this grant there is maintained a water pipe line across the land here involved, and it is clear that appellant's title is subject to this easement. Let us now inquire as to the effect of this easement right upon appellant's title, and as to what extent it impairs his ability to convey to respondents "a full fee-simple title" as provided by the terms of the contract of sale. The contention of counsel for appellant seems to be that, since his title is subject only to this easement, it is none the less a fee-simple title, and his ownership and dominion over the land is nevertheless all that the words "fee-simple title" imply The Supreme Court of Indiana in the case of Indiana, B. & W. Ry. Co. v. Allen, 113 Ind. 581, 590, 15 N. E. 446, 450, discussing the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes nature of a fee-simple title where it was claimed that such a title did not exclude an easement, said: "The case before us is quite as strong as one could well be, for here the complaint averred that the appellee was the owner in fee simple, and that the claim of the appellant was unjust and unfounded, and so the court expressly finds and decrees. This decree, therefore, adjudges that the whole interest is absolutely in the appellee, and that the claim of the appellant is utterly groundless. A decree adjudging the whole title to be in the plaintiff, and that the defendant's claim is unjust and unfounded, necessarily settles the whole controversy, and covers the title and its incidents. This would, indeed, be the effect of the decree if it did no more than adjudge the fee to be in the plaintiff, for he who owns the absolute fee has an unclouded and unburdened estate. As said in Dumont v. Dufore, 27 Ind. 263: 'A title in fee simple means a title to the whole of the thing absolutely.' This state ment of the law has been quoted with approval, Stockton v. Lockwood, 82 Ind. 158; Arnold v. Smith, 80 Ind. 417. It is no doubt true that a defendant may have his interest, whatever it may be, protected in a decree; but if the decree contains no limiting clause, and adjudges his claim to be unjust and unfounded, and that of the plaintiff to be in fee simple, it conclusively affirms that he has no claim to the property. Stumph v. Reger, 92 Ind. 286. It cuts off every claim, whatever be its form or character. But the claim which the appellant here seeks to enforce is a claim to an estate or interest in the land itself. An easement is an interest in land. Burk v. Hill, 48 Ind. 52 [17 Am. Rep. 731]; Douglass v. Thomas, 103 Ind. 187 [2 N. E. 562]. It is so completely an estate or interest in land that an action will lie to quiet title to it. Davidson v. Nicholson, 59 Ind. 411. We think it very clear that, where title has been quieted in the owner of the fee, a claim to an easement is conclusively adjudicated, and cannot again be asserted. But if it were simply a claim, clouding the owner's right, it would be adjudicated." Justice Harlan speaking for the Supreme Court of the United States in Adams v. Henderson, 168 U. S. 573, 580, 18 Sup. Ct. 179, 182, 42 L. Ed. 584, said: "A good and indefeasible title in fee imports such ownership of the land as enables the owner to exercise absolute and exclusive control of it as against all others." Van Rensselaer v. Poucher, 5 Denio (N. Y.) 35, 40; Miller v. Calvin Phillips Co., 44 Wash. 226, S7 Pac. 264. [1] It seems plain to us that appellant was unable to convey "a full fee-simple title" to respondents; his land being subject to this easement. He was not enabled "to exercise absolute and exclusive control of it as against all others," using the language of Justice Harlan above quoted. [2] Counsel for appellant rely upon the literal words of the contract, that the title was to be "free and clear from taxes, mortgages, and other liens"; from which it is argued that the enumeration of incumbrances of this particular class excludes the idea that appellant's title is to be free from all other incumbrances. This enumeration, however, we do not think lessens the force of the words "full fee-simple title." It will be noticed that the enumerated incumbrances are only liens upon the land, such as could be satisfied by the payment of money, while the easement with which the land is burdened is something more in its effect than a mere lien. It actually lessens appellant's present dominion and control over the land. In other words, it renders his title less than a "full fee-simple title." Those words we think constitute the agreement to furnish a title free from the burden of such easement. [3] Some contention is made that notwithstanding the existence of this easement appellant in any event has marketable title to the land. We are not able to adopt this view. In 26 Cyc. 818, "marketable title" is defined as "a term which when applied to real estate is used to designate a title free from reasonable doubt." 19 Am. & Eng. Ency, of Law, 1138; 1 Warvelle on Vendors (2d Ed.) §§ 46, 299. [4] We do not think that the question of marketable title is involved here at all. It is clear that appellant has not a "full fee-simple title to the land." There is no doubtful question as to this. If it could be made to appear with reasonable certainty that this easement did not in fact exist, though there was a bare possibility that it might exist, we would have a case involving this contention; but we know that it does exist and that appellant's title is impaired to that extent. It may be that this easement is comparatively only a slight hindrance to full enjoyment of the land by appellant, but the certainty of its existence renders it such that respondents were not obliged to accept the title offered by appellant, in view of the expressed terms of the contract. Other alleged imperfections in appellant's title are pointed out by counsel for respondents, but, since we conclude that the one we have discussed is sufficient to sustain the trial court's disposition of the case, the others do not require discussion here. We are of the opinion that the rights of the parties have been correctly determined by the trial court. Its judgment is therefore affirmed. DUNBAR, C. J., and MOUNT, FULLERTON, and GOSE, JJ., concur. PER CURIAM. In this case a decree was entered at the suit of the respondent, the plaintiff below, dissolving the marriage relation existing between the plaintiff and the defendant. The decree further provides that, until the plaintiff remarries or until the further order of the court, the defendant shall pay her the sum of $25 per month, commencing December 1, 1909, and that he shall pay her the sum of $150 as attorney's fees. The defendant has appealed from that part of the decree awarding alimony and attorney's fees to the plaintiff. Where a contract to remodel and repair a building was to be completed by a certain date with a provision for a forfeiture for each day's delay and for an extension of time should the contractor be delayed in the work, and the building was found in worse condition than anticipated, and this with other matters called for changes in the plans, and the parties, instead of following the contract provisions as to such changes, agreed upon them orally, an instruction on the question of forfeiture may properly assume that the parties had waived a technical compliance with the contract provision as to such changes. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 420-431; Dec. Dig. § 191.*] 3. CONTRACTS (§ 323*) - PERFORMANCE BREACH QUESTION FOR JURY-BUILDING CONTRACT. OF Whether delays caused by the changes necessary in work under a building contract and the extra work caused thereby warranted an extension of time for the completion of the work, as provided by the contract, held for the jury. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1543-1544; Dec. Dig. § 323.*] Department 1. Appeal from Superior Court, Pierce County; John A. Shackleford, Judge. Action by A. Gehri & Co. and others against William M. Dawson and others. Judgment for defendants, and plaintiffs appeal. Affirmed. Boyle, Warburton & Brockway, for appellants. Stevenson & Sorley, for respondents. The record shows, and the court found, that the appellant is 36 years of age, in good health, and engaged in the insurance business, and capable of earning considerable FULLERTON, J. On December 14, 1908, money. A discussion of the evidence would the appellants, being then the owners of a serve no useful purpose. It suffices to say certain brick building situated in the city of that the allowance of the alimony and at-Tacoma, known as Parker's Hall, entered intorney's fees is not unreasonable. to a contract with the defendants Dawson, The decree is affirmed, and the clerk of Poindexter & Co., by the terms of which the the court is directed to enter a judgment latter named company agreed to remodel the against the appellant and his sureties on building and erect an addition thereto acthe supersedeas bond for the amount of the cording to certain plans and specifications at alimony from December 1, 1909, at $25 per the agreed price of $6,910. The contract promonth, with legal interest on each of the vided that the work should be completed on payments, and for an attorney's fee of $150 or before March 2, 1909, and provided a forand costs of the appeal. The judgment feiture of $5 per day for every day the comshall provide for its remission to the supe-pletion of the building should be delayed berior court for further proceedings in accord-yond that date. The contract also containance with this opinion. (64 Wash. 240) A. GEHRI & CO. et al. v. DAWSON et al. (Supreme Court of Washington. July 22, 1911.) OF 1. CONTRACTS (§ 323*) - PERFORMANCE BREACH- QUESTION FOR JURY-BUILDING CONTRACT-EXTRA WORK. ed the following provisions: "(3) No alterations shall be made in the work shown or described by the drawings and specifications, except upon a written order of the architect, and, when so made, the value of the work added or omitted shall be computed by the architect, and the amount so ascertained shall be added to or deducted Where a contract to remodel and repair a from the contract price. In the case of disbuilding provided that no extra work should sent from such award by either party hereto, be done without a written order from the architect, and the contractor claimed sums for the valuation of the work added or omitted extra work, and there was evidence as to acts shall be referred to three disinterested arbiFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 116 P.-43 |