of plaintiff on its complaints and against de- because of the arbitration provision in the fendant on its counterclaims, and entered contract out of which arose, not only the judgment accordingly. On the former appeal plaintiff's complaint, but also the defendant's the judgment in favor of plaintiff was re- counterclaims, it would be monstrous to igversed, and the actions ordered dismissed nore the mutuality of the contract, set aside on the ground that, inasmuch as the contract the judgment, and dismiss the one on that out of which the whole controversy arose ground, and not the other. Suppose the destipulated that all differences between the fendant's counterclaims had been fully estabparties arising out of the contract should be lished, and the amount found due to plaintiff submitted to a board of arbitration, whose set off against them pro tanto, leaving a large decision should be final and conclusive, no judgment in favor of defendant; would counaction could be maintained on the contract sel for plaintiff think for a moment that deby either party until tender of arbitration to fendant could rightfully insist upon a canthe other party and a refusal thereof. Up- cellation of the finding of the amount due on rehearing en banc the majority of the plaintiff on the ground that the whole matcourt adhered to the former opinion, and ter should have been arbitrated and take we said: judgment for the full counterclaims without deduction? That idea would doubtless seem "monstrous" to plaintiff's counsel, as it does to us. Yet there is no distinction in principle between the case here and the case supposed. "For the reasons therein stated, the judgment is reversed, and the cause is remanded, with instructions to dismiss the action." between the parties that a specific direction as to what disposition should be made of the counterclaim seemed unnecessary. The trial court has correctly interpreted the decision. Pursuant to the remittitur the trial court entered a judgment dismissing plaintiff's actions, and also defendant's counterclaims Counsel is also much aggrieved that in without prejudice. Plaintiff now appeals, and the former opinions this court failed to make is much aggrieved that defendant's counter- specific answer to his argument on this claims were not dismissed with prejudice. question then as now presented. But the It is urged that the counterclaims are sep-ground upon which the original opinion was arate and independent suits which were tried based so obviously went to every controversy out and dismissed by the lower court; hence that dismissal was not affected by our decision dismissing the complaints. Plaintiff cites the following decisions which it is asserted sustain this view; Washington National Bldg., Loan & Investment Ass'n v. Saunders, 24 Wash. 321, 64 Pac. 546; McKee v. McKee, 32 Wash. 247, 73 Pac. 358; Gray v. Granger, 48 Wash. 442, 93 Pac. 912; Curry v. Wilson, 57 Wash. 509, 107 Pac. 367. In neither of those decisions, however, did this court go farther than to hold that a plaintiff has no right to dismiss his action when a counterclaim has been interposed by defendant demanding affirmative relief. Counsel also quotes as sustaining his position Pomeroy's Code Remedies (4th Ed.) p. 851, as follows: "The plaintiff must file a complaint averring facts which are said to constitute a cause of action in his favor. The defendant is expressly permitted to unite in his answer as many defenses and counterclaims as he may have. Suppose that be pleads some defense either by way of denial or of new matter, and also, a counterclaim. On the trial he establishes his defense, and thus defeats the plaintiff's recovery upon the alleged cause of action. Does this success cut off his power to go on and prove the facts constituting his counterclaim, and to obtain the judgment thereon? Such a conclusion would be a monstrous perversion of the statute, and would be a virtual repeal of its express provisions which permit the defendant to unite as many defenses and counterclaims as he may have." All this may be granted as a general rule, but, when the defense is one which, if sound, would also defeat an action on the matter set up in his counterclaim, the application of the general rule itself would be "a monstrous perversion of the statute." Where, as here, the plaintiff's cause of action failed Judgment affirmed. MORRIS, C. J., and CHADWICK, FULLERTON, and MOUNT, JJ. concur. (91 Wash. 629) TAYLOR et al. v. CITY OF SPOKANE. (No. 13027.) (Supreme Court of Washington. June 23, 1916.) 1. MUNICIPAL CORPORATIONS 741(1)-DEFECTS IN STREETS-CHARTER-CONSTRUCTION. Under City Charter of Spokane, art. 12, § 115, providing that claims for personal injuries sustained by reason of the alleged negligence of the city must be presented within 30 days, and for injuries alleged to have been caused by the existence of snow or ice upon any street or other public place, the claim must be filed within 10 days, in an action for personal injuries received upon a sidewalk, caused by ice and cinders thrown on the sidewalk by firemen when washing the fire wagon at the station, the city being charged with negligence sufficient to sustain an action independent of the mere presence of ice and snow through which it may be liable, the 30-day limitation for the presentation of claims is the controlling clause. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1562; Dec. Dig. 741(1).] 2. MUNICIPAL CORPORATIONS 755(1)—DEFECTS IN STREETS-GOVERNMENTAL AGENCY -NOTICE. The rule exempting municipalities from liability for negligence in the matter of govern mental functions does not apply to injuries sustained upon sidewalks, streets, and public places. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1587, 1589, 1590; Dec. Dig. 755(1).] 3. MUNICIPAL CORPORATIONS 791(1)-DEFECTS IN STREETS GOVERNMENTAL AGENCY -NOTICE. Where a negligent condition in a sidewalk or other public place of a municipality exists for a period of time which will hold the municipality to constructive notice, the negligence of a private individual or governmental agent becomes that of the municipality. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1647; Dec. Dig. 791(1).] Department 1. Appeal from Court, Spokane County; E. H. Judge. Superior Action by Ruth K. Taylor and another against the City of Spokane. Judgment for the defendant, and plaintiffs appeal. Reversed and remanded, with instructions. or by reason of any such place being out of repair, unsafe, dangerous or obstructed from any cause or in any manner, the claim for any such alleged damage or injury must be filed with the clerk within 10 days after the date of said inlocation of the place where said alleged accident jury or damage, and must state the nature and occurred. able to present such claim within the time afore"If the claimant is physically or mentally unsaid, it may be presented and filed by some one on his behalf. verified in the form, manner and time afore"Failure to present such claim in writing, duly said, shall bar any action against the city for such alleged damage or injury." If the accident occurred in consequence of the existence of ice and snow, the claim was not filed in time. If not, it was filed within the 30 days, and is therefore in time. Without discussing the many cases cited and relied on by the parties, and coming at once to the real issue, we are not inclined to hold that the 10-day limit applies under the facts of this case. The reason for that clause or proviso in the charter is so obviously apparent, and the consequence of its ap Danson, Williams & Danson, and Geo. D. Lantz, all of Spokane, for appellants. H. M. Stephens, Dale D. Drain, and Ernest E. Sar-plication-that is to deprive a party of a geant, all of Spokane, for respondent. CHADWICK, J. This is an action to recover for personal injuries. Appellant alleges in her complaint that while passing along the north side of Gordon avenue in the city of Spokane she was thrown violently to the sidewalk, sustaining most painful injuries; that the sidewalk was alongside of a fire station; that it was the custom of the firemen to wash the fire apparatus on the sidewalk, and in freezing weather, so that ice was formed, upon which the firemen were accustomed to throw ashes and cinders of all sizes; that she was injured on the 3d day of February, 1914, but that she was unable to transact or direct or arrange any of her business affairs until March 2, 1914, when she gave the notice required by the city ordi nance. [1] The court below sustained a challenge to the sufficiency of the evidence because notice of plaintiffs' claim had not been filed within 10 days after the accident. The city charter (Article 12, § 115) pro vides: right of action-is so severe that it should not be held to apply where the reason of the rule fails. It was so provided that the city might be informed of and take account of temporary and transient conditions. "The manifest purpose of the charter was to afford the city an early opportunity to examine the locality where the accident occurred, to ascertain the nature of the alleged defect in the street or sidewalk, and learn, as far as known, the character and extent of the injuries sustained by the claimant, so that it may avoid litigation and costs by settling the claim, if merition, the claim appeared to be without merit, torious; or, on the other hand, if on investigathen to afford the city an opportunity for preparing its defense, and procuring evidence while the same may be obtained." Pierce v. Spokane, 59 Wash. 615-619, 110 Pac. 537. Its purpose in fixing a 10-day limit for filing claims was to cover cases of passive negligence. The negligence alleged in the instant case was active and of long duration as to the unnatural formation of the ice and the cinders which were placed thereon. The proofs show that it had been the custom of the city's agents to wash the fire wagon at the point in question, and to throw large cinIt was testified that the ders upon the ice. wagons were washed after each fire; that there had been ice at the point in question off and on all winter; that it had been the practice to throw cinders on the sidewalk; that the cinders were not sifted, and large chunks were used which were broken up somewhat with a shovel; that the sidewalk was so covered with ice and cinders on the day of the accident. The accumulation of ice as the result of the acts of the firemen and the obstructing cinders, if the jury should find that they were obstructions as is alleged, bring the case within the authority of Muncie v. Hey, 164 Ind. 570, 74 N. E. 250. Admitting that the city was not liable for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "All persons having claims for damages for personal injuries or for injuries to property sustained by reason of alleged negligence or any act of the city, or any officer, agent, servant or employé of the city, must present such claims to the council within 30 days after such injury or damage. They must be in writing and verified, and must state the time when, and the place where such injury was received or happened, the cause, nature and extent thereof, the amount of damage sustained, the amount for which the claimant will settle, a statement of the actual residence of the claimant by street and number at the date of presenting and filing the claim, and the actual residence of such claimant for six months immediately prior to the time such claim for damages accrued. "If an injury is alleged to have been caused by the existence of snow or ice on a street, highcross-walk or other public place, way, the mere accumulation of ice and snow up-citing Cunningham v. Seattle, 42 Wash. 134, on the sidewalk, the court there held that an 84 Pac. 641, 4 L. R. A. (N. S.) 629, 7 Ann. inquiry into the collateral circumstances was Cas. 805. We may refer to the decision cited still open. The city had negligently permit- for an answer to the argument advanced: ted a waterspout to discharge upon a muchused sidewalk on one of the principal streets of the city. An accumulation of ice had formed, making a dangerous obstruction, which had continued for about 5 days. The court said: "The accumulation of water and ice in the manner shown in this case, so as to obstruct the free and safe use of the side walk, constituted a nuisance which it was the duty of the city to prevent or abate, and if it negligently failed to perform this duty, as charged, it ought to be, and will be, held liable for the natural consequences." The doctrine of concurring cause is recognized in Smith v. Tacoma, 51 Wash. 101, 98 Pac. 91, 21 L. R. A. (N. S.) 1018. The court there granted that a city might not be liable for an accident occurring from the mere presence of ice and snow, but found, "if other elements of actionable negligence exist, liability may arise." The facts of that case are available and will not be repeated here. See, also, Snickles v. St. Joseph, 139 Mo. App. 187, 122 S. W. 1122; Smith v. Yankton, 23 S. D. 352, 121 N. W. 848; Lehmann v. Brooklyn, 30 App. Div. 305, 51 N. Y. Supp. 524; McQuillin, Mun. Corp. § 2845. The city being charged with negligence sufficient to sustain a cause of action independent of the mere presence of ice and snow, and for which it may be liable, it follows that the 30-day limit for the presentation of claims is the controlling clause of the charter provision. Although broad in its terms, we feel that the proper construction was placed upon the charter in Connolly v. Spokane, 70 Wash. 160-162, 126 Pac. 407, where, although the facts were different, the underlying principle was the same. The court said: "The rule exempting municipalities from liability for negligence in the matter of governmental functions has one well-recognized exception-that in regard to injuries sustained upon sidewalks, streets, and public places." [3] The difficulty seems to be in not keeping in mind the rule that when the negligent condition exists for a period of time which will hold the municipality to constructive notice, the negligence of the private individual or governmental agent, as in the case at bar, becomes that of the municipality. Reversed and remanded, with instructions to proceed with the trial. 179-SIGNATURE-Descrip. The rule of descriptio personæ is not applicable where the instrument on its face shows that the descriptive words were not used to describe the person, but to characterize the capacity in which he made the contract. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 777, 778; Dec. Dig. CONTRACTS 179.] 179-CONSTRUCTION-LAN GUAGE OF INSTRUMENT. Where a simple contract is ambiguous as to the identity of the real parties thereto, the ambiguity will first be attempted to be solved from what appears upon the instrument itself, taking into consideration not only the words and figures in the body thereof, and the signatures and additions thereto, but any printed or written headings, memoranda in the margin, or other indicia which will serve to throw light on the intention of the parties. "If we assume, for the purpose of this case, that a 10-day limitation is reasonable as ap-3. plied to the conditions stated in the charter, it is plain that such provision should not be construed to apply to cases which do not clearly fall within the terms expressed, or be applied to cases where a doubt of the application exists; for to apply the provision to cases not clearly within the 10-day provision would make it a snare and a trap, and therefore unfair and unreasonable. The first part of this section of the charter provides that claims for personal injuries sustained by reason of the alleged negligence of the city may be presented within 30 days. The latter part of the section provides that, if any injury is alleged to have been caused by the existence of snow or ice on any street, etc., or by reason of such place being out of repair, the claim must be filed within 10 days. This latter provision refers to the temporary and quickly changing conditions of the places named, while the former provision refers to a continuous negligence, which might have been foreseen." [2] Respondent contends that, granting there was a negligent condition, it was due to the acts of the employés of the fire department, and, under the doctrine of governmental agency, the city would be relieved, [Ed. Note.-For_other_cases, see Contracts, Cent. Dig. §§ 777, 778; Dec. Dig. 4. EVIDENCE 459(1)-PAROL 179.] EVIDENCE AFFECTING WRITINGS-ADMISSIBILITY. Where upon the face of a simple contract doubt is rendered as to who is bound thereby, parol evidence may be employed to determine whose contract it is. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 1722, 1906, 2109; Dec. Dig. 459(1).] 5. PRINCIPAL AND AGENT 136(1)—LIA BILITY TO THIRD PERSONS-PERSONAL LIABILITY OF AGENT. An agent, acting within the scope of the au thority conferred upon him by the principal, is 170(1)-PRACTICAL CON not to be held personally liable on the contract be recalled, the first and second loans to be in simply because the contract between the princi- the sum of $2,500 each, secured in one inpal and the third party is invalid on account of lack of power in the principal to make such stance by bank stock, and in the other by a contract where the extent of power possess- stock of a corporation doing a mercantile ed by the principal is a matter of public law. business, and the third loan in the sum of [Ed. Note.-For other cases, see Principal and $5,000 to be secured by a mortgage on cerAgent, Cent. Dig. §§ 447, 476, 477, 484; Dec. tain hotel property. Shriver, not being acDig. 136(1).] quainted with the persons for whom the 6. CONTRACTS loans were sought, nor with values in New Mexico, wrote to Stone and declined to make any of the three loans except the Morrison one, saying, however, in effect that, if Stone was of the opinion that the security for the Humble note was satisfactory, a loan would be made to Humble. On September 3, 1908, Stone, in response to the last-mentioned communication, wrote the following letter: STRUCTION BY PARTIES. The rule that the construction placed upon a contract by the parties thereto by their acts will be generally adopted by the court is not applicable to this case, because no harmonious construction thereof was adopted by the parties. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 753; Dec. Dig. 170(1).] 7. COURTS 99(2)-RULES LAW OF THE CASE. OF DECISION Where the trial court determined the issues of the case upon the pleadings and proof, it is no cause for complaint that the court followed the ruling of another judge on a demurrer filed therein. [Ed. Note. For other cases, see Courts, Cent. Dig. 8 340; Dec. Dig. 99(2).] Appeal from District Court, Roosevelt County; John T. McClure, Judge. Action by John Ellis and another, administrators of the estate of George Ellis, deceased, against Lula Stone. From a judgment for defendant, plaintiffs appeal. Affirmed. G. L. Reese, of Portales, for appellants. T. E. Mears, of Portales, Reid & Hervey, of Roswell, and Geo. S. Downer, of Albuquerque, for appellee. HANNA, J. This is an action brought by John Ellis and William I. Shriver, administrators of the estate of George Ellis, deceased, against Lula Stone, executrix of the estate of James P. Stone, deceased. The action is based upon a letter written by James P. Stone which plaintiffs, appellants here, assert constitutes a guaranty on the part of James P. Stone to discharge and satisfy an indebtedness owing the Ellis estate by W. W. Humble, represented by a promissory note executed by said Humble in favor of George Ellis, deceased. "8346 "The Citizens' National Bank of Portales. "J. P. Stone, President. "B. Blakenship, Vice Pres. "S. A. Morrison, Cashier. "J. A. Fairley, Asst. Cashier. "Capital $50,000 "Portales, New Mexico, September 3, 1908. "Mr. William Shriver, El Dorado, Kansas.Dear Sir: I to-day send you two loans for $2,500 each as per our agreement. I also send receipt that you may sign for the protection of our customers in case of death. In regard to the hotel loan, I consider it a very liberal loan as the property is well worth $10,000 and party carries $6.000 insurance on same, but I think I can get the other $5,000 on different security. Of course, we will be responsible to you for any loan that I might send you. When I make the other loans I will forward same to you, and make draft through your bank for the amount. just let me know and I will make it right. I And if there is anything that is not satisfactory would be glad for you to make a trip down in this part of the country this fall, and see me, if you can let me know about what time you can come, so I will be sure to be here. "I make draft on you through your bank in order that we may run same in our books as With kindest reremittances for collection. gards to yourself and Mr. Green, I am "Very truly yours, J. P. Stone, President." On the day this letter was received Shriver accepted a draft in favor of the Citizens' National Bank of Portales, and thereupon reThe evidence in behalf of appellants is ob- ceived the notes executed by A. S. Morrison scure in many respects. On account of cer- and W. W. Humble, respectively, together tain contentions made by appellants it be with the collateral attached thereto. While comes necessary to review the evidence in the evidence on this point is vague and ungreater detail than we would otherwise feel certain, it inferentially appears that the justified in doing. On the part of the appel-notes and collateral were transmitted either lants the evidence tended to show the fol- to the First National Bank of Kansas City, lowing: William I. Shriver and James P. Stone first met in the latter part of 1907 at El Dorado, Kan. Shriver made a loan to Stone personally, and at that time represented that he (Shriver) was then loaning money belonging to his brother-in-law, George Ellis. Subsequently Stone returned to New Mexico, and some time in 1908 wrote to Shriver requesting the latter to make three separate loans, one to A. S. Morrison, one to W. W. Humble, and one to another individual whose name could not Mo., the drawee, or to the Farmers' & Mer- It was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 158 P.-31 was unable to discharge that indebtedness. case that all letters written by Stone to Stone and Humble had a conversation in him were upon stationery bearing the letwhich Stone advised Humble that the bank ter head of the Citizens' National Bank of was "hard up," and needed the money which Portales or a bank of Elida, N. M., of which Humble owed it, and that he thought he Stone was an officer. The evidence on becould procure a loan for Humble, providing half of the defendant tended to show that in the latter furnished good and ample securi- the early part of 1914 Shriver and an attorty therefor, saying that "he (Stone) would ney then in his employ had a conversation in have to stand for it," meaning that Stone Portales in which the terms of the letter of would have to be responsible for the loan. September 3, 1908, were discussed, and that At that time Humble was not indebted to Shriver then said he regarded that letter Stone, but owed the New Mexico bank, of as constituting a guaranty on the part of which Stone was the managing head, a con- the Citizens' National Bank of Portales, not siderable amount of money. an obligation of Stone personally, but that that question had not received his consideration before that time, and that he had not consulted an attorney concerning it. It should be remarked that for many years Shriver had been engaged in the business of banking, and claimed to have had knowledge for that length of time that a national bank had no power to guarantee paper for others in which it had no interest. Some time shortly prior to September 3, 1909, Humble wrote to Shriver advising him that he would be unable to pay the promissory note which he had previously executed in favor of Shriver or Ellis, and apparently asked for an extension of time. This letter was sent by Shriver to Stone, together with a renewal note, with instructions to effect a renewal of the first note upon the payment of the interest then due. This Stone did, accepting from Humble $250 as interest on said note, which money was transmitted to Shriver or Ellis either by the Citizens' National Bank of Portales or Stone. No further communication passed between Stone and Shriver until August 16, 1910, some 13 days before the renewal note became due, when Stone wrote Shriver advising that the Humble note be sent to him "so that we may proceed to collect same by law in the event he does not pay same when due, which I think he will not do now. I think we had better look after it promptly and make it out of his property if he does not pay and would prefer to lose no time on same.' The Humble note and security were then sent to Stone, but apparently the note was not paid when due, and was subsequently placed in the hands of an attorney for collection and suit, which was authorized by Shriver. On October 11, 1910, Shriver wrote to Stone, saying in part: "I hold a letter signed by you as president of the bank saying you would be responsible for the loans you make for us. And for that reason gave the matter no attention, as I looked for the pay to come through you." Subsequently suit was brought on the note, confession of judgment obtained from Humble and his wife, judgment entered thereon, and execution issued which was returned nulla bona. Subsequent to this time a second suit was brought, in attachment, in Texas, against Humble, for the purpose of subjecting certain lands alleged to be owned by him to the payment of the judgment indebtedness. Shriver refused to authorize the execution of an attachment bond which in any manner would make him liable in damages, but apparently one was executed, at the solicitation of the attorney having the matter in charge, by some person other than Shriver. The costs of these suits were paid by the attor [1] 1. The case turns upon the single question of the identity of the guarantor of the contract of September 3, 1908. Whose contract is it? Is J. P. Stone the guarantor? An answer to this question will fully dispose of the case. On the part of the appellants it is contended that the guarantor is J. P. Stone, which is denied by the appellee. Appellants base their contention upon three distinct grounds: First, the obligation is prima facie that of Stone, the word "president" simply being descriptive of the person of Stone, which does not relieve him of personal liability thereon; second, if the contract be held to be ambiguous, it must nevertheless be held to be the personal obligation of Stone, for the reason that, where such ambiguity exists, a construction most favorable to appellants must be made; and, third, Stone having no authority to bind the Citizens' National Bank of Portales, of which institution he was president, because the principal had no power to enter into such a contract, he must be held personally bound thereby. plaint seeks to obtain relief against Stone personally, on the theory that the contract of September 3, 1908, was the personal obligation of Stone, while the answer endeavors to avoid that liability by pleading that Stone was the president of the Citizens' National Bank of Portales, and that the obligation was executed by him for the bank in a representative capacity. The com In the first place, unquestionably the contract of September 3, 1908, whoever may be held to be the parties thereto, is one of guaranty. It provides, in effect, for the payment of certain notes executed and to be executed by others in favor of Ellis or Shriver, in the event that the makers default in the payment thereof according to the terms of said instruments. In that respect the promise is collateral to a principal obligation of another, and is not a direct promise, without condi |