MAIN, J. The parties to this action are ¡tion notice would be invalid as to all of the rival claimants to a certain tract of mining ground included therein which was previ ground located in the Newport mining dis-ously included in the Fourth of July. trict, in Pend Oreille county. The cause [2] The respondent's relocation notice bewas tried to the court without a jury, and ing invalid, it can only prevail by reason of resulted in findings of fact, conclusions of the fact that it has held adverse possession law, and a judgment sustaining the plaintiff's of the property in dispute for more than the right to the disputed territory. From this statutory period of limitations and has perjudgment the defendant appeals. formed the required annual labor. The rule The assignments of error practically all supported by the authorities is that, where a relate to the findings of fact and conclusions person has held and worked a mining claim of law entered by the trial court, and its for a period equal to the time prescribed by refusal to make the findings of fact and con- the statute of limitations for mining claims clusions of law presented by the appellant. of the state where the same is situated, he The respondent is a corporation organized has a right equivalent to that of a valid lounder the laws of this state, and claims the cation. Lindley on Mines (3d Ed.) § 688; Alpossessory right to what is called the Snow-toona Quicksilver Min. Co. v. Integral Quickbird mining claim. The appellant is a cor- silver Min. Co., 114 Cal. 100, 45 Pac. 1047; poration organized under the laws of this Lavagnino v. Uhlig, 26 Utah, 1, 71 Pac. 1046, state, and claims the possessory right to a 99 Am. St. Rep. 808. The question then arismining claim called the Comstock Fraction es whether the facts bring the respondent lode mining claim. These respective claims within this rule. The trial court found that overlap to the extent of approximately 3 each year since the location, under which acres. The respondent claims the right to the respondent claims, the laws of the United the disputed territory under a relocation no- States and the state of Washington have been tice dating from April 25, 1907, and by reason complied with, by "performing all the assessof the fact that it had held adverse posses- ment work and labor on said mining claims sion and had done the annual assessment required by said laws." It is further found: work for a period of more than 11 years. The appellant claimed under a location notice of prior date than that of the respondent, and under an amended and relocation notice under date of October 24, 1914. "That the plaintiff and its grantors have had continuous, uninterrupted, and notorious adverse possession of and to all the ground embraced in the Snowbird lode mineral claim for 11 years last past and are now in possession of said lands and are entitled to the possession thereof." [3] If the facts are as found by the trial court, under the rule above stated the judgment should be affirmed. This is peculiarly a case where weight should be given to the findings made by the trial court. In the testimony there is frequent references to stakes, [1] Only a small portion of the ground in dispute was covered by the location notice under which the appellant first claims. Neither the respondent's relocation notice nor the appellant's amended relocation notice recites that any part of the "new location is located as abandoned property." The ground in dispute, with the exception of less than a third thereof, had previously been located as a claim known as the Fourth of July. Rem-points, lines, descriptions, etc. This testiington's Code, § 7365, requires that, when quartz or lode mining claims are located as forfeited or abandoned property, the "location certificate shall state, if the whole or any part of the new location is located as abandoned property." A location notice, which fails to recite that the property is located as abandoned property, does not comply with the statute, and is therefore invalid and insufficient. National Milling & Mining Co. v. Piccolo, 54 Wash. 617, 104 Pac. 128; Florence Rae Copper Co. v. Kimbel, 85 Wash. 162, 147 Pac. 881; Gold Creek Antimony Mines & Smelter Co. v. Perry, 94 Wash. 624, 162 Pac. 996. Under the rule of these cases the respondent's relocation notice would be invalid, and the appellant's amended reloca mony was doubtless clear enough to the trial court, but it is not always easy to follow in reading the record. After giving careful consideration to the evidence, we are of the opinion that the findings of the trial court should be sustained. Whether the 7-year statute of limitations (Remington's Code, § 786) or the 10-year statute of limitations (Remington's Code, § 156) should apply to a case of this kind it is not necessary here to determine, because, under the facts found by the trial court, the case is brought within either statute. The judgment will be affirmed. HOLCOMB, C. J., and MACKINTOSH, PARKER, and MITCHELL, JJ., concur. Seller of a truck on a conditional sale, providing that it could terminate the contract and retake the property, if it should at any time "deem" itself insecure, could not retake the property on merely deeming itself insecure, but only when it had good cause to believe that it was insecure. Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford, Judge. Action by Orville Hines against the Pacific Car Company. Judgment for plaintiff, and defendant appeals. Affirmed. rule in other states, this court, in the case of Skookum Lumber Co. v. Sacajawea Lumber & Shingle Co., 181 Pac. 914, has decided: "To entitle a mortgagee to foreclose under the insecurity clause of a mortgage when he 'deems' that proceeding necessary, he must act in a reasonable manner. To be allowed to avail himself of the privilege there must exist proper cause to apprehend some loss to his security; he cannot act in a purely arbitrary manner." This case, like that one, calls for the construction of words used in a contract, and no reason appears for giving words in this contract a meaning different from that which was given to similar words in that contract. This rule of good faith and reasonable cause is recognized in other cases, whether resting upon contracts or statutory pro:isions. Camp v. Neufelder, 49 Wash. 426, 95 Pac. 640, 22 L. R. A. (N. S.) 376; Hughes v. Gordon & Easterday, of Tacoma, for appel- Carr, 101 Wash. 109, 172 Pac. 224. lant. Wesley Lloyd, of Tacoma, for respondent. Judgment affirmed. HOLCOMB, C. J., and MACKINTOSH, PARKER, and MAIN, JJ., concur. (110 Wash. 103) HULTIN et ux. v. WAGNER et al. (No. 15624.) MITCHELL, J. Appellant sold and delivered to respondent a truck, in consideration of a cash payment and future payments to be made on the installment plan. The transaction was evidenced by a "memorandum of conditional sale" signed by both parties. Among other things, the contract provided that if the Pacific Car Company, their agents, etc., "shall at any time deem themselves in- (Supreme Court of Washington. March 1, secure," they shall have the right to terminate the contract, retake the property, and retain, as liquidated damages, all moneys APPEAL AND ERROR 706(3)—Order grantpaid on the purchase thereof. Prior to the maturity of the first deferred payment, appellant, without respondent's consent, retook possession of the truck, with some additional equipment respondent had placed thereon. Respondent brought suit and recovered judg ment. The evidence fully justifies the finding made by the trial court that appellant had no reasonable cause to deem itself insecure and no reasonable cause for taking the property. The question in the case is: Did the contract justify the vendor in taking possession of the property without the existence of proper cause to deem itself insecure? 1920.) ING NEW TRIAL NOT REVIEWABLE IN AB- cited that an affidavit was filed and considered Department 1. Appeal from Superior Court, Clarke County; R. H. Back, Judge. Action by Swan Hultin and wife against William Wagner and others. Verdict for plaintiffs, and from an order granting defendants' motion for a new trial the plaintiffs appeal. Affirmed. Geo. B. Simpson, of Vancouver, for appellants. Appellant contends it was immaterial whether the vendor had good cause to be lieve that it was insecure, if in fact it did deem itself to be so. It is argued that the language of the contract here, viz. "deem themselves insecure," is different from that] in section 1111, Rem. Code, providing for an action before the maturity of a mortgage W. W. Sparks and McMaster, Hall & Drowdebt, where the mortgagee "has reasonable ley, all of Vancouver, for respondents. cause to believe," etc., and that such difference must not be lost sight of in the determi- MAIN, J. The purpose of this action was nation of this cause. Whatever may be the to recover damages caused by fire. The com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 (109 Wash. 86) plaint alleges that the fire was negligently | we make haste, in justice to respondent's started by the defendants upon the farm oc- present counsel, to say that we find nothing cupied by them and was negligently permitted in the record reflecting upon them or either to spread and extend to the land of the plain- of them in the slightest degree. tiff, where it did the damage complained of. The allegations of the complaint were denied by the answer. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs in the sum of $150. The defendants made a motion for judgment NORTHERN PAC. RY. CO. v. JOHNSON & notwithstanding the verdict and also for a new trial. The former motion was overruled, and the latter granted. The plaintiffs appeal. One ground for new trial was that of newly discovered evidence. The order granting the new trial recites that an affidavit was filed and considered, and that the motion was granted upon the ground of newly discovered evidence which could not with reasonable diligence have been produced on the trial. The affidavit referred to in this order does not appear in the record brought here. Without the affidavit it could not be held that the trial court abused its discretion in granting a new trial. The judgment will be affirmed. HOLCOMB, C. J., and PARKER, MACKINTOSH, and MITCHELL, JJ., concur. (109 Wash. 591) (No. 15362.) HOWELL v. DUNNING. (Supreme Court of Washington. March 1, 1920.) HIGGINS. (No. 15384.) (Supreme Court of Washington. March 1, 1920.) 837(11)—SUPREME 1. APPEAL AND ERROR the facts were largely stipulated, the Supreme Where the cause was tried to the court, and 2. SHIPPING 145-THROUGH BILLS OF LAD- Under through bills of lading for overland points in America covering shipments of tea from the Orient by steamer to Seattle and thence by rail, stipulating the freight should be at rates as per margin, where the ocean and rail rates respectively appeared, held, that the ocean carrier on reception of the goods agreed with the shipper directly for itself and as agent for the other carriers by rail to transport the goods for the entire distance so that the freight was payable on delivery at destination, On rehearing. Former views adhered to. though the bills provided the occan carrier's liability should cease on delivery from the ship's Moye Wicks and Crandell, Williams & 3. SHIPPING 145 COMPLETE DELIVERY Crandell, all of Spokane, for appellant. Plummer & Lavin and W. H. Smiley, all of Spokane, for respondent. PER CURIAM. In the opinion heretofore filed in this case, 187 Pac. 365, it is said: "The record discloses a state of facts with reference to the entry of the decree of divorce by consent upon a complaint verified and served a year before, during all of which intervening time the parties had lived together as husband and wife, thus working a condonation of all matters charged, which amounted to a fraud upon the trial court and cannot be permitted to pass here without comment and condemnation of all concerned therein." While adhering strictly to the views thus expressed, it is but fair to say that none of the attorneys now appearing for respondent appeared for or in any sense represented him in the divorce action, a fact which should have been set forth in the original opinion. Our attention being called to the oversight, MUST BE MADE BEFORE RIGHT TO FREIGHT The carrier must make complete and final delivery to the consignee before it is entitled to its freight. 4. SHIPPING 145, 146-ACCEPTANCE AT Where tea shipped from the Orient to interior points in America, by steamer to Seattle, and, as it was intended, by rail from that point, was damaged on the dock at Seattle, and thereafter, under appointment from the owners of the dock, certain marine and fire insurance adjusters took possession of the tea and sold such of it as could be identified, with the consent of all the parties interested, such consent was in effect a voluntary acceptance of delivery at an intermediate port entitling the ocean carrier to its freight, though it could not recover for the freight on unidentified and lost goods. (188 P.) 5. CUSTOMS AND USAGES 14-CUSTOM OF AMERICAN PORT DOES NOT MODIFY CONTRACT MADE IN ORIENT CONSTRUABLE ACCORDING TO ENGLISH LAW. A custom of the port of Seattle cannot be held to modify a contract for ocean and rail shipment made in the Orient which by its terms was to be construed according to English law. Department 1. loaded from ships of the steamship company were received by the inland carriers for further transportation. Upon certain of the bills of lading a rail carrier is designated, but on the remainder such carrier is not designated. The shipper or consignee had a right in the first instance to select the rail carrier over whose line the goods would move from Seattle to destination, and, if neither Appeal from Superior Court, King County; the shipper nor consignee designated any Mitchell Gilliam, Judge. particular carrier, then the water carrier would determine via whose lines the goods would be moved to destination. The steamship company had not established a through route or joint rate with any of the railway Action by the Northern Pacific Railway Company, a corporation, against Johnson & Higgins, a corporation. From judgment for plaintiff, defendant appeals. Cause remand-lines serving Seattle, and had no special ined, with directions to modify judgment. Bogle, Merritt & Bogle, of Seattle, for ap pellant. terest in any particular line getting the business. In consequence of the fire many of the packages which contained the tea were bro Geo. T. Reid, J. W. Quick, and L. B. da ken open and the contents scattered over the Ponte, all of Tacoma, for respondent. MAIN, J. The plaintiff, as assignee, brought this action for the purpose of establishing a lien for ocean freight upon funds in the possession of the defendant as trustee. The cause was tried to the court largely upon stipulated facts and resulted in a judgment in favor of the plaintiff. From this judgment the defendant appeals. The facts essential to be here stated are these: On or about the 1st day of October, 1915, there was shipped from certain points in Japan and China by the British steamship Ixiom a quantity of tea and rice. By the bills of lading issued to the respective shippers the tea and rice were consigned to certain points in the Middle West and Eastern states. The shipment was by way of the port of Seattle. Under the usual and ordinary course of business the shipments would have been handled and the freight paid and collected as follows: Upon arrival at the port of Seattle, the goods would be delivered to a rail carrier for transportation to final destination. The freight charges for the water carrier would be paid or advanced to it by the rail line receiving the goods for further transportation, and billed as "advance charges" upon the rail carrier's expense bill against the goods, and upon final destination the rail line would collect from the several consignees the amount advanced the water carrier for its freight, together with the freight due the rail carrier for its transportation. On or about October 28, 1915, the Ixiom arrived at the port of Seattle and discharged the goods described in the bills of lading on the dock known as Pier 14. While the goods were in possession of the owner of the dock, and during the same day that they were discharged from the steamship, a part of them was damaged or destroyed by fire. Pier 14 was the place or station at which goods un dock, some thereof being totally destroyed and some damaged by fire and water. Many of the consignments lost their identity so that it could not be ascertained who was the consignor or consignee. Immediately after the fire occurred the owners of the dock appointed the defendants, Johnson & Higgins, who are marine and fire insurance adjusters, to take charge of the cargo for all interests concerned, recondition and forward to destination such parts thereof as were and could be put in satisfactory condition for forwarding, and to sell or otherwise dispose of the balance and hold the proceeds for the benefit of whomsoever in law was entitled thereto, and "this appointment was assented to by all the parties in interest." Pursuant to this appointment, Johnson & Higgins, took possession of the cargo, reconditioned and forwarded to destination, in accordance with the several bills of lading, such part thereof as was fit for forwarding, and all freight thereon, including the ocean freight, has been paid. That part of the cargo that could not be forwarded to destination without a total loss on account of damage sustained in the fire was sold by Johnson & Higgins at Seattle at the best price obtainable, and the proceeds of such sale are now in their possession. With respect to that part of the cargo sold that could be identified, such sales were made with the "assent and approval of such consignees or their underwriters. The commingled and unidentified cargo was sold by the defendants without the specific assent or approval of the consignees, as the defendants did not know who were the consignees." All of the sales made were assented to by the dock owners and by the representatives of the ocean carrier. As above stated, all the freight on the goods shipped to final destination has been paid, and there is here no controversy over that. Upon that part of the cargo which could not be forwarded to final destination the freight charges for the ocean For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes carrier amounted to $4,995.55, and this is the sum here in controversy, the charges on the identified goods sold by the defendants being $2,012.43, on the unidentified goods, $1,229.07, on the lost and destroyed goods, $1,714.05. The respondent claims the right to recover the freight upon each of these three classes of goods, to wit, the identified, unidentified, and lost goods. The appellants dispute the right of the respondent to recover any of these sums. The bills of lading issued by the ocean carrier will be subsequently mentioned more in detail. [1] The appellant makes a number of assignments of error relative to the ruling of the trial court upon its motion directed to the reply to its answer. The case being tried to the court, and the facts being largely stipulated, it does not seem necessary to review the ruling of the trial court upon this question. This court will disregard any facts not properly pleaded and any evidence not properly in the record. Upon the merits the first question is whether the ocean carrier had earned and was entitled to the payment of its freight when the goods were delivered at the port of Seattle. The appellant contends that the freight was not earned and was not payable until the goods had reached their final destination. The respondent makes the opposite contention, to wit, that the ocean contract was performed when the goods were delivered at the port of Seattle, and that the freight was then due and payable. To determine this question recourse must be had to the terms found in the bills of lading. There were a dozen or more of such bills prepared upon printed blanks, alike in form, the consignees and consignors being different as well as the point of origin and the point of destination. One of the bills will be taken as a type, and only those provisions thereof will be here set out which seem to be necessary for the determination of the question presented. Across the top of the bill of lading, in prominent type, underscored, appear these words: "Through Bill of Lading for Overland Points in America." Under this appears: tea * "Shipped or delivered for shipment in apparent good order and condition by Irwin, Harrisons & Crosfield, Incorporated, on board the steamship Ixiom, lying in or off the port of Shimidza, ten hundred and ninety (1,090) pkgs. for delivery from the ship's deck (where the carrier's responsibility shall cease) subject to exceptions and conditions both general and special hereinafter mentioned and to ship's engagements not hereby disclosed, and though altering the voyage of involving a deviation therefrom, at the port of Seattle or other port in Puget Sound, or so near thereto as she may safely get, for conveyance by connecting railways or steamships, always subject to the terms and conditions of the oncarrying conveyance, to Minnesota Transfer in transit, or so near thereto as the carrier may safely get, (notify the Central Warehouse Company), or to his or their assigns, he or they paying freight for the said goods, in American gold coin or its equivalent, without deduction (carrying interest where payment is delayed, at the rate of 5 per cent. per annum), at rates as per margin. * shall cease. "Transshipment of cargo for ports where the ship does not call, or for shipowners purposes, to be at shipowners' expense, but at the risk of the owners of the goods from the time goods leave the ship's deck, where ships responsibility liverable at any railway station within or Goods forwarded by rail are denearest to the port named, and must be taken away by the consignees immediately after arrival. Goods forwarded by steamship or otherwise for shipment or after transshipment to be subject to the conditions and exceptions of the forwarding conveyance, and at the risk of the owners of the goods; goods to be forwarded as the shipowner for detention, and cost of wareas practicable, but without liability of housing to be borne by the owners of the goods. soon * "Shipowners to have a lien on the goods for unpaid freight, and all charges becoming due hereunder, whether in the carrying ships or any hulk, lighter, craft or stores. in exchange for delivery order, if required, and "This bill of lading duly indorsed to be given freight if not already prepaid to be paid in cash before delivery. "This bill of lading shall constitute the contract between the owners of the goods and the shipowners; it shall be construed and governed by English law, and shall apply throughout the transit, but always subject to the conditions and exceptions of the carrying conveyance." In the bill of lading as above quoted it is provided that the freight should be "at rates as per margin." On the margin appears the following: at $.50 per 100 lbs. at 1.00 per 100 lbs. Gold $512 30 1,024 60 $1,536 90" Freight payable on delivery Across this margin was stamped the word "Collect." The question then is whether the ocean carrier under the bill of lading had performed everything that it was required to perform and was entitled to its freight when the goods were delivered at the port of Seattle. It will be noted that the goods were to be delivered from the ship's deck for conveyance by connecting railways to the Minnesota Transfer in transit. Then there is a provision for delivery to the order of Brown Bros. & Co. with a specification to notify the Central Warehouse Company. There is no provision for notice to any one when the goods arrive at the port of Seattle; the freight to be paid as stated in the margin, which, as above set out, segregates the ocean and the rail freight and then totals the two opposite the words, "Freight payable on delivery." If the freight was to be payable by the consignee on delivery at Seattle, there |