(188 P.) ure to pay the principal and interest installments on the contract between the settler and the construction company is illegal and void (Adams v. Twin Falls-Oakley L. & W. Co., 29 Idaho, 357, 161 Pac. 322); also the provision relative to nondelivery of water for nonpayment of tolls or assessments levied in preceding years. Shelby v. Farmers' Co-op. Ditch Co., 10 Idaho, 723, 80 Pac. 222. A different question, however, is presented as to the right to refuse to deliver water to respondent for the year 1913 until he had paid or given security for the maintenance assessment for that year. Article 15, § 4, of the Constitution, among other things, provides that whenever water has been dedicated to the use of a tract of the assessment was paid or reasonable se- "That at the beginning of the irrigation season of the year 1913, the plaintiff applied to the defendants for water to be delivered through said irrigation system for his use on the land described in his complaint, and that defendants refused such request and application for the reason which was then stated to the plaintiff that he had not paid his canal charges against his said land which were then due and in default, and had not made payment of principal and interest on his water contracts and the plaintiff was by the defendants informed that water would not be delivered until said charges and payments were paid." land, the person entitled to receive the same Such refusal was based upon excessive deshall not be deprived thereof upon his pay-mands. It may have excused an actual tendment therefor and compliance with such equitable terms and conditions as to the quantity used and times of use as may be prescribed by law. In the case of Bardsly v. Boise Irrigation & Land Co., 8 Idaho, 155, 67 Pac. 428, it was held that one cannot compel delivery of water from a canal until a reasonable compensation for the use thereof has been tendered or reasonable security given for the payment thereof. The mere allegation that the party offered to secure payment of the same is not sufficient. It is clear from the foregoing that the operating company had the power to levy the assessment for the year 1913, and that the delivery of water might be withheld until er on the part of respondent of the amount of the 1913 assessment. It did not dispense with the necessity of a showing of ability and willingness on his part to pay or give security for the payment of the maintenance charges for that year. Not only did respondent fail to make any such showing, but his position was that he declined to make any such payment or give security therefor, and that he was not obliged to do so as a condition precedent to his right to receive water. It is contended by respondent that, even if appellants might have required the payment of the assessment, they had waived their right to such payment by reason of the fact that they proceeded to deliver him water during all of 1913. But it was shown that such delivery was made in compliance with a temporary injunction in the nature of a mandatory injurction issued by the court at the instance of respondent. Obedience to an order of the court cannot be held to constitute a waiver. By stipulation of counsel, appellants waived all questions as to whether the respondent was in fact damaged or as to the amount of his damages. The instructions of the court relative to the elements and measure of damages therefore will not be reviewed. The judgment is reversed, and the cause remanded for further proceedings. Costs awarded to appellants. MORGAN, C. J., concurs. BUDGE, J., sat at the hearing, but took no part in the decision. In a suit to rescind an exchange for fraud, evidence of defects which could have been repaired held not to show falsity of defendant's representations as to the patented article, for certain territorial rights to which plaintiff had conveyed his land. 2. EXCHANGE OF PROPERTY 3(1)-NO RELIANCE ON REPRESENTATIONS WHERE SUBJECTMATTER OF REPRESENTATIONS FULLY EXAMINED. Where plaintiff examined for several weeks the patented article, the rights to which were the consideration for his conveyance of land, and was fully acquainted with its construction and operation, he cannot thereafter rescind his conveyance on the ground that he relied on defendant's representations as to the patented article. nocent purchaser from Beers and wife, but that he had paid $500 on the purchase price and paid some taxes, and was therefore given a lien for the purchase price and taxes after déducting certain rent. The defendant Beers and wife have appealed from the judgment finding fraud. Bagley has appealed from that part of the decree finding that he was not an innocent purchaser, and the plaintiffs Hudson have appealed from that part of the judgment giving Bagley a lien upon the property for the purchase money paid by him. In view of the conclusion which we have reached upon the appeal of Beers and wife, it will not be necessary to consider the other two appeals. The facts as shown by the record are, in substance, as follows: Beers and wife were the owners of letters patent for a device known as the "Simplex Water Gas Burner." Mr. Beers, in the early part of the year 1917, was demonstrating this burner in the city of Spokane for the purpose of selling territorial rights. Mr. Hudson became in terested in this burner. He watched and assisted in its demonstration for two or three 3. EXCHANGE OF PROPERTY 3(2)-RIGHT TO weeks, and finally concluded to purchase cer RESCIND HELD WAIVED BY DELAY AFTER Where plaintiff conveyed property in exchange for the territorial rights in a patented article, and thereafter demonstrated the article for nearly a year and sold territorial rights thereto after discovering defects in the article, he waived his right to rescind for misrepresentations as to the quality of the article. Department 2. tain territorial rights by trading to Mr. Beers therefor the two lots in question upon which there was a dwelling house, including also with the lots and dwelling house certain household goods. This sale was consummated on February 14, 1917. After the sale was completed and Mr. Hudson and his wife had executed a deed for their lots and dwelling house and a bill of sale of the household goods, and after Mr. Beers had assigned the Appeal from Superior Court, Spokane territorial rights for certain states to Mr. County; D. W. Hurn, Judge. Action by John D. Hudson and wife against Bradford E. Beers and others. From the judgment, both parties appeal. Reversed and remanded, with instructions to dismiss the action. R. L. Campbell and W. B. Mitchell, both of Spokane, for plaintiffs. Hudson, Mr. Hudson then upon his own account proceeded to demonstrate the burner and to offer for sale on his own account certain territorial rights. He sold the rights of Spokane county; he then went to Seattle and demonstrated his burner there for a short time; then he went to Tacoma and demonstrated the burner in Tacoma and sold the county of Pierce; he then went to Butte, Mont., and demonstrated the burner there; and then he went to Watonga, in Oklahoma. Stephens & Jack, of Spokane, for defendant Bagley. King & Kerr, of Spokane, for defendant During the time he was exhibiting this burnBeers and wife. er and demonstrating it to prospective customers in these different places, the burner MOUNT, J. This action was brought by would frequently not operate properly. The the plaintiffs to rescind a sale of certain lofs result was that he returned to Spokane, and in the city of Spokane upon the ground of in February of 1918 brought this action to fraudulent representations made by the de- rescind the sale upon the ground of fraudufendant Beers to the plaintiffs, and that, rely-lent representations made by Beers and reing upon these fraudulent representations, lied upon by him. On the trial of the case they transferred their property to the defendant Beers. The defendant Bagley was made a party because he purchased the prop erty from Beers after the transfer by the plaintiffs to Beers. It is alleged that Bagley was not an innocent purchaser for value in good faith. On a trial of the case the court concluded that the sale was fraudulent as to the plaintiffs; that Bagley was not an in he offered in evidence some printed circulars and blueprints, which he testified were used by Mr. Beers in making the sale to him. One of these circulars stated that: tifically and specially constructed burner, made "The Simplex Water Gas Burner is a scienpurposely for burning ordinary water and cheapest grade of kerosene (or coal oil) as a fuel-by combining the gases generated from the two (188 P.) liquids to produce an ideal fire for heating and, had anticipated, and for that reason paid cooking. "The flame is one of the hottest known outside of the oxy-acetylene flame, and is absolutely free from soot or smoke. Can be lighted in one minute, and extinguished instantly. It is perfectly safe (we offer $100 to any one who can explode it without using powder or dynamite). Fits any stove without any alterations whatever. Can be installed in five minutes or taken out in one minute. "The fuel container can be placed any distance away, or high or low, without making any difference in its operation. "It generates its own oxygen from the water, and therefore requires no draft or outside air; it therefore burns steadily and the combustion is perfect. Draft burners must fluctuate because drafts are bound to fluctuate, and the Simplex succeeds where draft burners have failed. We get as much oxygen from one gallon of water as a draft burner or ordinary coal or wood fire can get from 3,300 gallons of air, and besides, we get the benefit of the hydrogen to add fuel to and intensify the heat of our flame." [1] Mr. Hudson in his testimony did not show that there were any other representations than those contained in the circulars and blueprints, which were about the place during the demonstration before the time of his purchase of the territorial rights. He testified that the burner was not practical; but we are convinced from the record before us that whatever of failure there was of the burner was caused by reparable defects in the burner which Mr. Hudson was using in his demonstrations. He admitted that upon the witness stand. It is plain from all the evidence that with a burner in repair it would do the things claimed for it by Mr. Beers. In fact the evidence shows without dispute that there were other burners of this same kind in Spokane that had been used a year or more at the time of the trial, and that these burners were perfectly satisfactory and did the work claimed for them. So we are satisfied from the evidence in the case that there was no showing that these burners were not practical when in proper repair, and that there were no fraudulent representations relied upon by Mr. Hudson. more for his territorial rights than they were really worth, that was a chance which he himself took when he purchased the territorial rights from Mr. Beers. We think it is plain from all the facts in the case that at the time of the purchase he was cognizant of the construction of the burner and the method of operation, and knew as much about the details of it as Mr. Beers. In fact there is evidence in the record that he himself had attempted to perfect a burner of some character, and that when he saw this burner he concluded that this was the burner he wanted. It follows, we think, from his own evidence, that he did not rely upon the representations made by Mr. Beers before the sale, but that he investigated the machine thoroughly before the sale, was satisfied therewith, and cannot now be heard to say that he relied upon the representations of Mr. Beers. In the case of Meyer v. Maxey, 92 Wash. 73, 158 Pac. 995, in discussing this point we said: "Even assuming that every representation charged by respondents had been made by appellant, it is manifest that the case falls within the rule announced by Pomeroy and reiterated in many of our decisions to the effect that, stitutes inquiry for himself, has recourse to the where the party charging misrepresentation inproper means of obtaining information, and actually learns the real facts, or could have done so by availing himself of the means of information at hand, he cannot claim that he did not learn the truth and was misled by the representations. While we have gone as far as any court in relieving against inducing fraud and artifice, we have never gone so far for a failure to observe facts and conditions as as to relieve a purchaser of all responsibility much within his reach as that of the seller, especially where he has professedly undertaken an examination for himself, with every opportunity to make it as complete as he pleased." * * [3] Mr. Hudson, under the facts in the case, falls squarely within that rule. He not only was in a position to know all the facts before he made the purchase, but, after he made the purchase, for nearly a year he demon[2] Furthermore, according to his own evi- strated the machine in other parts of the dence, he watched for a period of two or country, and sold territory. He cannot now three weeks the operation of the burner be heard to say that he relied upon the repwhich was being used by Mr. Beers for dem-resentations made by Mr. Beers to him. It onstrating purposes in Spokane. He assisted is true that, two or three months prior to the in the demonstrations. After he purchased time the action was brought, Mr. Hudson bethe territorial rights he demonstrated the came sick while he was in Oklahoma, and burner himself in different places in this state for that period of time was probably unable and in Montana and Oklahoma. While he at to demand a rescission; but he had ample opdifferent times made some complaint of the portunity prior to the time he became sick to fact that the burner did not operate properly, learn all about the machine which he had he attributed it to the fact that some parts purchased and the territorial rights under of the burner were not properly adjusted or the patents; and it was his duty upon diswere out of repair. He did not then offer to covering fraud, if there was any, to immetrade back or to rescind his sale until nearly diately rescind his contract. This he did a year after it was made; and, if we may not do, concededly for a period of nearly one concede, for the purposes of this case, that year. We are of the opinion that there were he was not able to make sales as fast as he no fraudulent representations made by Mr. Beers; but, if we may concede that there were fraudulent representations, they were discovered by Mr. Hudson long prior to the time when he brought this action, and were waived because he made no demand for rescission on that account. We are of the opinion, therefore, that the trial court erred in finding that the sale was induced by fraud, and in entering a decree setting aside the sale. The judgment is reversed, and the cause remanded, with instructions to dismiss the action. Clark, upon the ground of cruelty on the part of appellant. The trial court made no findings, in awarding the decree of divorce, indicating that either party was unfit morally to have the care and custody of their son; the court simply awarding the custody to appellant as follows: "That defendant be awarded the custody of the minor child, to wit, Wayne Durward Clark, and that plaintiff, Ida Clark, be permitted to have said child in her possession at her home or other place in the city of Seattle, Wash., 48 hours at a time each week, and that defendant deliver said minor child to plaintiff at ber minor child at all reasonable hours; that defendant at no time take said minor child out of the corporate limits of the city of Seattle, Wash." HOLCOMB, C. J., and BRIDGES and home; that plaintiff be permitted to see said PARKER, JJ., concur. (110 Wash. 293) CLARK v. CLARK. (No. 15675.) The court seems to have been prompted to so dispose of the question of the custody of the son at that time because of respond (Supreme Court of Washington. March 18, ent's then inability, she being in very poor 1920.) DIVORCE 303(2)—MODIFICATION OF DECREE DISTURBED. Where court in giving wife divorce awarded custody of infant son to husband, but in so doing made no finding reflecting upon wife's character such as to in the least impair her moral qualification to properly care for and rear her son, and gave wife right to have son with her for 48 hours during the week, so that husband's control was not absolute, order made by same judge modifying decree by awarding custody to wife upon her remarriage and establishment of permanent home, enabling her to properly care for her son, will not be disturbed on appeal. Department 1. health, to care for him, and appellant's abil. Appeal from Superior Court, King County; resulted in an order being entered on SepEverett Smith, Judge. tember 26, 1919, modifying the decree as follows: Action by Ida Clark (now Ida Dooley) against William G. Clark. From order modifying divorce decree by awarding infant child to plaintiff, defendant appeals. Affirmed. See, also, 182 Pac. 566. Walter G. Kienstra, of Seattle, for appel lant. Revelle & Revelle, of Seattle, for respond ent. PARKER, J. This controversy is over the custody of the ten year old son of the parties to this proceeding; William G. Clark having appealed to this court from an order of the superior court for King county, modifying, in so far as the custody of the sou is concerned, the decree of divorce dissolving the bonds of matrimony existing between them. control of Wayne Durward Clark until further "That the plaintiff have the custody, care, and order of this court, subject, however, to the following." This is followed by somewhat liberal priv This ileges reserved in appellant relative to his The only argument here made in appellant's behalf is that there has not arisen any such new conditions, since the awarding of the decree of divorce and the subsequent orders slightly modifying that decree, as to now warrant the further modification thereof by the order here appealed from. A careful review of the entire record quite convinces us that we would not be warranted in disturbing the order of modification so made by the trial court. We note that the decree The decree of divorce was rendered by the of divorce, the previous orders modifying the superior court for King county on March same, and the order from which this appeal 23, 1914, in favor of the respondent, Mrs. is taken, were all rendered and made by the (188 P.) same trial judge; that there has never been made any finding, and we assume therefore any showing, reflecting upon the character of respondent, such as to in the least impair her moral qualifications to properly care for and rear her son; that the decree of divorce and subsequent orders reserved in respondent some considerable privileges in the custody of her son, so that the control of appellant was by no means absolute; that it is highly probable that had she been physically able to care for her son at the time of the divorce she would then have been awarded his custody, subject to such privileges as this order gives appellant; and that she is now physically able and so situated that she can properly care for and rear her son. These considerations lead us to conclude that the disposition of the matter by the trial judge should not be disturbed by us. The order appealed from is affirmed. HOLCOMB, C. J., and MAIN, MACKINTOSH, and MITCHELL, JJ., concur. arrest. This warrant was given to the appellant for execution. The specific charge was the larceny of an automobile, and on inquiry the appellant was informed by a police officer of the city of Spokane that the accused had been seen on that day on the downtown streets of the city driving an automobile bearing the license number of the stolen automobile. Upon further inquiry the officer found a young man who knew the accused and who stated to the officer that he had seen the accused only a few moments before that time driving an automobile "at a good rate of speed" toward the city of Hillyard on the main highway leading from the city of Spokane to that city. The officer immediately took up the pursuit of the accused on a motorcycle, and in passing through the city of Hillyard rode the motorcycle at a greater rate of speed than its ordinances permitted. In this court the appellant makes two principal contentions: First, that the ordinances which the appellant is accused of violating are invalid because in conflict with the statutes of the state; and, second, that a sheriff is exempt from the operation of city ordinances regulating the speed at which a motor vehicle may be driven when he is in the pursuit of a person accused of felony for whose arrest he has a warrant. The conclusion we have reached on the second contention makes it unnecessary to discuss the first. The sheriff is made by statute the chief executive officer and conservator of the peace his duty to keep the public peace, and to arof the county. By statute also it is made rest and confine all persons who commit violations of the law, and especially is it made his duty to execute all process issued to him by a court of justice. His duties in these respects are public duties necessary to the Appeal from Superior Court, Spokane safety of the state and its people, and necesCounty; Hugo E. Oswald, Judge. C. Gorham was convicted of violation of the speed ordinances of the city of Hillyard, and he appeals. Reversed, and cause remanded, with instruction to discharge de fendant. Joseph B. Lindsley and Fred J. Cunningham, both of Spokane, for appellant. C. C. Upton, of Hillyard, for the State. FULLERTON, J. The appellant was convicted of a violation of the speed ordinances of the city of Hillyard. The facts are stipulated and are in substance these: The city named lies within and forms a part of the county of Spokane. The appellant is a duly appointed, qualified, and acting deputy sheriff of such county. On June 3, 1919, a charge of grand larceny was preferred against one William Agnew, and a warrant issued for his sary for the preservation of public and priduties the sheriff has many privileges not vate property. In the performance of these accorded to a private individual, and statdividual do not generally apply to him when utes and ordinances directed against the inso performing them, expecially where their enforcement would hamper and hinder performance. That the enforcement of statutory or ordinance provision limiting the speed at which a motor-propelled vehicle shall be driven over a public highway against a peace officer would have a tendency to hamper him in the performance of his official duties can hardly be doubted. The case in hand affords an illustration. Here the felon was fleeing with a stolen automobile. Naturally he would pay but little regard to the minor offense of exceeding the speed limit. And, if the sheriff must confine himself to that limit, pursuit For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |