accident and a demand upon the part of re-, Ives did not sign the letter himself, but his spondent for compensation: "Stimson Mill Company. In "Ballard Station, Seattle, Wash., "July 7, 1915. "Mr. F. G. Merrick, Marysville, Wash.-Dear Sir: Your favor of the 6th inst. at hand. reply wish to state that we find it necessary to refuse your claim for repairs on auto. We find on investigation, not only from our train crew but other people in the vicinity, that this accident was caused entirely by carelessness on the part of the operator of the machine. The engine always whistles at the crossing, and at the time the accident occurred, whistled and also rang the bell. Yours very truly, Stimson Mill Company, by J. F. Ives. W." name was signed thereto by this clerk, it merely being dictated by Ives, and apparently the mill company's stationary was inadvertently used, and its name thus signed to this letter. Ives did not see the letter after it was written, he having merely dictated it to this clerk as a stenographer. The only negligence alleged against those in charge of the train was that the whistle was not sounded and the bell was not rung, giving warning of the approach of the train to the crossing. Respondent himself testified that he did not hear any whistle or bell, yet some of his own witnesses testified that they did hear the whistle blown at about the usual distance from the crossing at which whistles are blown. A number of appellant's blown and the bell rung upon approaching the crossing. Looking alone to this issue, we would be inclined to hold as a matter of [1] This letter was introduced over the objection of counsel for appellant as proof of an admission of ownership and operation of the railway by appellant mill company. No proof was introduced as to by what authori-Witnesses testified that the whistle was ty the letter was written, nor as to what relation J. F. Ives bore to appellant mill company. We may assume that Ives was an agent or officer of the mill company, and that the language of the letter could be construed as an admission of ownership or operation of the railway, if authoritatively written as such an admission, yet it would not be competent proof of ownership of the railway, or that the appellant mill company was the operator of the railway. "The declarations of an agent, made after the transaction, cannot bind the principal, unless they are so related to it as to constitute a part of the res gestæ. Weideman v. Ta coma Ry. & Motor Co., 7 Wash. 517, 519, 35 Pac. 414; Cook v. Stimson Mill Co., 36 Wash. 36, 78 Pac. 39; Harris v. Carstens Packing Co., 43 Wash. 647, 86 Pac. 1125, 6 L. R. A. (N. S.) 1164; Randall v. N. W. Telegraph Co., 54 Wis. 140, 11 N. W. 419, 41 Am. Rep. 17. law that there was a failure of proof of negligence on the part of those in charge of the train. We need not, however, pursue this inquiry further in view of our holding on the question of the sufficiency of the proof as to appellant being the owner of the railway. We have not had the benefit of argument or briefs in behalf of respondent. A somewhat painstaking review of the record, however, convinces us that appellant's claims of error cannot be successfully answered, and that its motions for judgment in its favor as a matter of law should have been granted. The judgment is reversed, and the cause dismissed. MORRIS, MOUNT, and HOLCOMB, JJ., concur. FULLERTON, J., concurs in the result. (No. 13576.) (94 Wash. 680) (Supreme Court of Washington. Feb. 16, 1917.) APPEAL AND ERROR 51-RIGHT TO APPEAL -AMOUNT IN CONTROVERSY. [2] In the case last cited there was a situation presented much like that here involved, where the decision was in harmony with the conclusion we here reach. A number of authorities are therein cited which are to the 'BERTLES v. HAWKINS MOTOR CAR CO. same effect. It seems clear to us that the court erred in admitting this letter in evidence over the objection of counsel for appellant. This left the case without any proof whatever as to who owned or operated the railway. It manifestly, therefore, resulted in complete failure of proof in respondent's behalf upon that question. It probably is of no consequence here how this letter came to be written upon the letter head of appellant mill company, its named signed to it, or as to what relation J. F. Ives bore to appellant, but the explanation of it is made plain by the evidence and is of some interest in this connection. It appeared from the evidence all but conclusive that the railway was owned and operated by a corporation known as the Marysville & Northern Railway Company and that J. F. Ives was its vice president. Judge. The letter "W" following the signature of Action by J. F. Bertles against the HawJ. F. Ives is the initial letter of a clerk who,kins Motor Car Company. Judgment for it seems, does clerical work for both the mill plaintiff, and defendant appeals. Appeal discompany and the railway company. J. F. missed. In action in justice court for less than $100, defendant counterclaimed for $99.99, but on appeal in district court, amended counterclaim to state amount in excess of $200. Held, the orig inal amount in controversy was $99.99, and the Supreme Court was without jurisdiction of the appeal under Const. art. 4, § 4, providing that appellate jurisdiction shall not extend to civil actions at law for recovery of money where original amount in controversy does not exceed $200. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 237, 267.] Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Cullen, Lee & Matthews, of Spokane, for appellant. Samuel R. Stern, of Spokane, for respondent. kane. diction is involved, he will be treated as if he were commencing an independent suit." It is claimed that each of the automobiles was damaged by the collision more than $100. MOUNT, J. On October 24, 1913, two The respondent brought suit in the justice automobiles collided upon the streets of Spo- court, alleging that his automobile had been One of the automobiles belonged to damaged in the sum of $99.99, evidently for the respondent. The other was driven by an the purpose of giving the justice court juagent of the appellant. Both automobiles risdiction of the case. The appellant here were damaged. The appellant now claims counterclaimed and alleged that its automothat its automobile was damaged to the ex- bile was damaged in the sum of $99.99, and tent of $293. The respondent brought an sought a judgment therefor. The statutes of action in the justice.court to recover from this state limit the jurisdiction of a justice the appellant for damages which were al- of the peace to cases involving less than $100. leged in the complaint to be $99.99, to re- Rem. Code 1915, § 44. Each of the parties spondent's automobile. The appellant ap- here, when the case was originally brought, peared in the justice court, filed an answer, voluntarily waived the damages in excess of and counterclaimed for damages to its ma- $100, in order to give the justice court origichine in the sum of $99.99. The case was nal jurisdiction. After the case was appealtried to the justice of the peace, who founded to the superior court, and tried upon the in favor of the plaintiff in that action for the full amount claimed. The defendant there appealed from the justice to the superior court, where trial was had to a jury. Up original complaint, answer, and counterclaim, and, after a verdict of a jury had been set aside, the appellant filed an amended answer, alleging damages in the sum of $293. Assum on that trial, a verdict was returned in faing, without deciding, that this was a proper vor of the defendant for $1. Thereafter a amendment to be allowed by the court, we new trial was granted, and, by leave of the think it did not change the "original amount superior court, an amended answer was filed in controversy," which was $99.99. When the by the defendant, claiming the full amount action was originally brought in the justice of its damage at $293. Thereafter a new trial was had to a jury, and a verdict was court, the parties voluntarily stated the returned in favor of the plaintiff for $50. amount of their claims, each against the othThereafter motions were made for judgment er, at $99.99. They thereby waived any claim notwithstanding the verdict, and for a new for a larger amount. The appellant argues trial. The motions for judgment notwith- in substance that, if it be held that $99.99 standing the verdict were denied, but a new is the original amount in controversy, then, trial was granted. The case was again tried in a case like this, where each has injured in the superior court to a jury, and resulted another's property, one may bring an action in a verdict of no damages for either party, in the justice court for less than $100, and and with the request from the jury that the prevent the other party from counterclaimcosts be divided. Thereafter motion for ing for more than $100, and thus defeat the judgment in favor of plaintiff notwithstand-greater claim. But we think it is plain that ing the verdict was made. The court granted it was not necessary for the appellant to set this motion, and entered a judgment in favor of the plaintiff for $99.99. The defendant has appealed from that judgment. Respondent moves to dismiss the appeal for the reason that the original amount involved is less than $200. The Constitution, at section 4, art. 4, provides that the appellate jurisdic-ed to do so, but sought recourse in the justice tion of this court shall not extend to civil actions at law for the recovery of money when the "original amount in controversy or the value of the property does not exceed the sum of two hundred dollars." In Northern Pacific Railway Company v. Shoemake, 69 Wash. 140, 124 Pac. 385, Ann. Cas. 1914A, 1040, in discussing the meaning of this provision of the Constitution, we said: "We think that, when the framers of the Constitution used the words 'original amount in controversy,' they had reference to the amount severally claimed by the respective parties in their pleadings. They did not mean that, if the sum of the opposing claims exceeded $200, the court would have appellate jurisdiction. When an action is commenced, the amount sued for is the test of jurisdiction. If the adverse party asserts a counterclaim, he to that extent becomes up its counterclaim in the justice court for an amount less than the actual damage. It could have defended there without setting up the counterclaim, and at the same time have maintained an action for a greater amount in the superior court. When it fail court by waiving its claim for any larger MORRIS, HOLCOMB, FULLERTON, and (95 Wash. 49) in favor of the plaintiffs. From this judg BURLEIGH et ux. v. CONSUMERS' PUB. ment the defendant and intervener appeal. CO. (GODDARD, Intervener). (No. 13542.) [1] No statement of facts or bill of exceptions has been brought to this court. Conse(Supreme Court of Washington. Feb. 17, 1917.) quently the only question for determination is whether the findings support the judgment. 1. APPEAL AND ERROR ~544(2)—REVIEWQUESTIONS PRESENTED. [2, 3] The facts found by the trial court are Where no statement of facts, or bill of ex-substantially these: The Consumers' Publishceptions was brought to the appellate court, the ing Company is a corporation, organized unonly question for determination was whether der the laws of the state of Washington. On the findings supported the judgment. [Ed. Note. For other cases, see Appeal and or about December 3, 1914, by resolution of Error, Cent. Dig. §§ 2424, 2428, 2478.] its board of trustees, the corporation em2. APPEAL AND ERROR ployed Clara R. Burleigh as editor of a paper published by it, known as The Consumers Review, at an agreed salary of $100 editor continuously from the 1st day of Deper month. Mrs. Burleigh served as such cember, 1914, to the end of March, 1915. On or about the 1st day of April, the intervener, 80(15)-ACTION as the findings state, acquired "certain interests in said paper, and at which time there was a verbal agreement that there should be 931(8)-FINDINGS OF FACT CONSTRUCTION IN SUPPORT OF JUDGMENT-REVIEW. When the language of the findings of fact is susceptible of two constructions, that meaning will be given which supports the judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3769.] 3. MASTER AND SERVANT FOR COMPENSATION-FINDING. The trial court found that defendant was a corporation; that its board of trustees employed plaintiff as editor of a paper published by de-no salaries paid until the paper had earned fendant at a fixed salary; that plaintiff served the same." The paper did not earn over and as editor from December, 1914, to March, 1915; above its ordinary expenses sufficient to pay that about the 1st of April intervener acquired any salaries from the 1st day of April, 1915, interests in the paper, at which time it was verbally agreed that there should be no salaries paid to the 31st day of August, 1915, when Mrs. until the paper earned the same; and that the Burleigh ceased to act as editor. From these paper did not earn sufficient to pay salaries up facts it appears that, prior to the time the to the time that plaintiff ceased to act as edi-verbal agreement mentioned in the findings tor. The court further found that plaintiff did not receive full compensation for the period dur- was entered into, Mrs. Burleigh had served ing which she acted as editor before intervener as editor of the paper four months, and had acquired an interest in the corporation. Held, earned as salary the sum of $400. Of this that where judgment was rendered for unpaid salary for such time, the findings will be con- amount, $127.30 had been paid. strued as showing that the agreement that salaries should not be paid until the same were earned by the paper did not apply to salaries already accruing. The controlling question in the case is whether the finding with reference to "no salaries" referred to salary earned prior to April 4. APPEAL AND ERROR 1176(5)-REVIEW-time. When the language of the findings of 1, 1915, or salary earned subsequent to that REVERSAL. Where the findings showed that the judgment was erroneous by reason of an obvious mathematical error, judgment will be remanded, with directions to correct the error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4595, 4596.] fact entered by the court is susceptible of two constructions, that meaning will be given which supports the judgment, rather than one 45 Wash, 536, 88 Pac. 1023; Dobrentai v. which would defeat it. Cantwell v. Nunn, Piehl, 92 Wash. 433, 159 Pac. 371. Department 1. Appeal from Superior What the oral agreement was, we are not Court, King County; A. W. Frater, Judge. advised, further than the recital in the findAction by Walter A. Burleigh and Clara ings. The trial court, in making the finding, R. Burleigh, husband and wife, against the undoubtedly intended to hold that the verbal Consumers' Publishing Company, a corpora- agreement did not cover salaries earned prior tion, in which Albert J. Goddard intervened. to April 1, 1915, when the intervener became From a judgment for plaintiffs, defendant interested in the paper, because if the findand intervener both appeal. Remanded, with directions. Philip Tindall, of Seattle, for appellants. Wilson R. Gay, of Seattle, for respondents. ing covers the balance due on such four months' prior salary, then the judgment is inconsistent with the finding. If the finding "no salaries" referred to the salary earned prior to that time, no judgment could have MAIN, J. The purpose of this action was been entered for the respondents. From the to recover the balance alleged to be due on findings it does not clearly appear that the account of salary earned. The defendant "no salaries" referred to included that earned Consumers' Publishing Company is a corpora- prior to April 1st. The language of the findtion. After the action was begun, A. J. God-ing being susceptible of two constructions, dard, being then a stockholder in the cor- in accordance with the rule above stated, poration, filed a complaint of intervention. it should be given that meaning which will The cause was tried to the court without support the judgment rather than defeat it. a jury, and resulted in findings and judginent [4] From the facts found, it appears that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the amount of salary earned was $400, upon cisco. Thomas Randles was engaged in sellwhich there had been paid $127.30. This ing engines in Seattle, which engines were would leave a balance due of $272.70. After purchased from the Gorham Engineering making the findings, the trial court conclud- Company. Mr. Randles had an agreement ed that the respondents were entitled to a with the Gorham Engineering Company to judgment of $222.30, and entered judgment the effect that he was to sell the engines for this amount. This obviously was a mathematical error, as $127.30, deducted from $400, leaves a balance of $272.70. The cause will be remanded to the superior court, with direction to enter a judgment in favor of the respondents in the sum of $272.70. the agent. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 442, 4422, 447-450.] 2. PRINCIPAL AND AGENT 148(4)-RIGHTS AND LIABILITIES AS TO THIRD PERSONSAUTHORITY OF AGENT. The rule that where one of two innocent parties, must suffer that one must bear the burden who placed an agent in position to do the wrong does not apply to the unauthorized indorsement of a note by an agent, where the agent's authority was in writing, and the party with whom he dealt had full information thereof. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 537-545.] Department 1. Appeal from Superior Court, King County; Everett King, Judge. Action by the National City Bank of Seattle against the Gorham Engineering Company and others. From a judgment against the defendant company, it appeals. Reversed, and case dismissed as to the appellant. Daniel B. Trefethen, of Seattle, for appellant. Herr, Bayley & Wilson and Carl E. Croson, all of Seattle, for respondent. MOUNT, J. This action was brought to recover upon a promissory note. The Gorham Engineering Company defended upon the ground that it was not liable as an indorser upon the note. Upon a trial of the case, the court entered a judgment in favor of the plaintiff against the defendant Gorham Engineering Company. That company has appealed. sent to him from San Francisco for cash, or "I hereby authorize Thos. Randles, whose signature appears on this letter, to indorse the name of the Gorham Engineering Company on notes, checks and drafts payable to said company, and to receive the money thereof." At the same time, Mr. Gorham and Mr. Randles signed a signature card, by which either Mr. Gorham or Mr. Randles was to sign for the Gorham Engineering Company. After this arrangement had been made, an engine was sent to the Gorham Gas Engine Agency, at Seattle, from San Francisco. The price of this engine was $3,180.84. A note was signed by Thomas Randles and Hannah Randles, his wife, payable to the Gorham Engineering Company, for that amount, and this note was deposited with the respondent The facts are substantially as follows: bank. Thereafter this note was taken up by In July, 1913, William J. Gorham was the Mr. Randles, and a new note substituted owner of the stock of a corporation known as therefor for $3,100. The balance was paid the Gorham Engineering Company, of which in cash by Thomas Randles to the bank. he was the president. The principal place This last-named note is the one sued on, and of business of this company was in San Fran- is as follows: "17346 11/27/14 of the written authority. There was no "$3100.00 Seattle, Wash., May 27th, 1914. course of dealing between the parties that "Six months after date, without grace we would authorize the bank to accept an inpromise to pay to the order of Thomas Randles dorsement of Mr. Randles upon a note paythirty-one hundred ($3100.00) dollars in gold coin of the United States of America, of the able to himself, or to any other person than present standard value, with interest thereon, in the Gorham Engineering Company. So far like gold coin, at the rate of 8 per cent. per anas the record shows, this was the only transnum from date until paid, for value received, interest to be paid at maturity and if not so action of the kind. We think it too plain for paid, the whole sum of both principal and in- argument that, under the express written auterest to become immediately due and collecti-thority quoted above, the bank was not auble, at the option of the holder of this note. And in case suit or action is instituted to collect this note, or any portion thereof we promise and agree to pay in addition to the costs and disbursements provided by statute, three hundred dollars ($300.00) in like gold coin for attorney's fees in said suit or action. "Due November 27th, 1914. "At Seattle, Washington." "J. C. Brown. thorized to take this note, as a liability against the Gorham Engineering Company, upon the indorsement by Mr. Randles, because the note was not a note payable to the Gorham Engineering Company. [2] Argument is made to the effect that the Gorham Engineering Company placed Mr. Randles in a position as agent, and that This note was indorsed on the back as fol- where one of two innocent parties must suf lows: "Gorham Engineering Co., by Thos. Randles. "For value received, I hereby sell, assign, transfer and set over unto the National City Bank, all my right title and interest in and to the within note together with the interest accrued and to accrue thereon. Thos. Randles." It is apparent from the face of this note that it is payable to the order of Thomas Randles, and not to the Gorham Engineering Company. Upon its face it is the private It cumstances. The judgment of the trial court must therefore be reversed, and the case dismissed as to the Gorham Engineering Company. fer, that one must bear the burden who placed the agent in position to do the wrong, but that rule has no application to this case, because here the bank was fully advised of Mr. Randles' authority. The letter of authority above quoted was dictated in the presence of the president of the bank, at his sugMr. Randles, which is simple, direct, and exgestion. It contains the whole authority of plicit. The bank was not led to believe that Mr. Randles had other authority than that property of Thomas Randles. [1] The controlling question upon this ap-expressly stated in the letter. In short, when peal is whether Thomas Randles was author- the bank took this note, with the indorse ized to indorse this note in the name of the ment of Mr. Randles upon it, it was fully inGorham Engineering Company, so as to make formed of his authority, and cannot be said that company liable. We think it is plain to be an innocent purchaser under such cirthat he was not so authorized. The authority of Mr. Randles was reduced to writing. authorized Mr. Randles "to indorse the name of the Gorham Engineering Company on notes * payable to said company, and to receive the money thereof." This note was not payable to said company. Upon its face it was payable to Mr. Randles personally. The authority here granted was plain and specific. It was not a general authority to indorse notes, but was a limited authority to indorse notes payable to the Gorham Engineering Company only, and the authority of Mr. Randles to indorse other notes cannot be inferred from that authority. It is argued by the respondent that the power of Mr. Randles should be construed in the light of all the surrounding circumstances, in order to give effect to the evident intention of the principal. It is not claimed, as we understand the record, that there was any other transaction like this. It is true that a number of notes were negotiated at the bank by Mr. Randles, but those notes were all payable to the Gorham Engineering Company, and, under the express written authority given by Mr. Gorham to Mr. Randles, he was authoriz ELLIS, MAIN, CHADWICK, and MORRIS, JJ., concur. (95 Wash. 1) STATE V. MASSEY. (No. 13628.) (Supreme Court of Washington. Feb. 16, 1917.) 1. FRAUD 68-OFFENSES - FALSE ADVER TISING. An advertisement that a piano was $400, but now $200, does not amount to a statement that the market value of the instrument was $400, but was now $200, so as to render the advertiser guilty of violating Rem. Code 1915, § 2622-1, declaring that any person who with intent to sell merchandise publishes an advertisement which is untrue, deceptive, or misleading shall be guilty of a misdemeanor, notwithstanding the market value of the piano was never $400; the obvious meaning of the advertisement being that its selling price, which had been $100, was reduced to $200. [Ed. Note.--For other cases, see Fraud, Cent. Dig. § 76.] 2. FRAUD TISING. 68-OFFENSES - FALSE ADVER ed to indorse such notes and receive the pro- former value of the piano be treated as a stateIn such case, should the statement of the ceeds thereof. The evidence shows clearly ment of its market value, the advertisement that there was no authority given outside i cannot be deemed false and misleading, show For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |