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the case upon a theory not covered by the trict, pursuant to the act of March 20, 1895 pleadings, and which was not an issue in the (Laws 1895, c. 117) and the acts amendacase. It will be observed that this last-men- tory thereof (Laws 1905, C. 87; Laws 1907, C. tioned case was tried out in this court upon | 95). Rem. & Bal. Code, 84091 et seq. the question as to whether the canal, over Thereafter the dike commissioners began which there was a bridge in a dangerous and proceedings looking to the construction of a unsafe condition, thereby became a public system of dikes. To that end they filed a nuisance to the extent that the company was petition in the superior court of Sterens legally bound to rebuild the bridge. As stat-county, praying for the condemnation and ed above, this question was not raised by the appropriation of a right of way for a dike, pleadings, and for these reasons the said case and for an assessment upon the lands benecannot be considered an authority in the fited by the construction of the dike to pay cause now before us. However, we think for the right of way and the costs of such that the said case, in so far as the same may construction. All of the property holders of conflict with the views herein expressed, the district were made parties to the proshould be and the same is hereby overruled. ceedings and duly served with summons, and
It follows that the judgment of the district such proceedings were thereafter had as to court must be reversed, with costs to the ap- result in a judgment of condemnation of a pellant. The case is remanded, with direc-right of way for the construction of a dike, tion to take such further action as may be and an assessment upon the property withnecessary, and in harmony with the views in the district benefited by the improvement herein expressed.
to pay the value thereof and the costs of
constructing the dike. From these orders AILSHIE, P. J., and SULLIVAN, J., con- and judgments, F. H. McLeish and Charcur.
lotte McLeish, Henry Bauer, and Frank
Winchester, freeholders residing within the (63 Wash. 331)
diking district, and having property affected CALISPEL DIKING DIST. NO. 1 OF STE- by the construction of the dike, gave notice
VENS COUNTY v. McLEISII et al. of appeal, the body of which was as follows: (Supreme Court of Washington. May 10, 1911.) “You, and each of you, are hereby notified DBAINS (8 82*) - ESTABLISHMENT – PROCEED. I that the above-named defendants, F. H. MCINGS-APPEÁL-QUESTIONS REVIEWABLE.
Leish, Charlotte McLeish, Frank Winchester, Under Rem. & Bal. Code, $ 4107, authoriz- and Henry Bauer, appeal to the Supreme ing an appeal from any judgment for damages Court of the state of Washington from that or assessment of benefits in drainage proceedings, and providing that such appeal shall bring certain order of the court made and enterup the justness of the damages and assessment, ed in the above-entitled cause on the 7th the court on appeal from the condemnation of day of March, 1910, and from the whole land for right of way for a dyke, and a judg- thereof, and also appeal from that certain ment confirming the assessment, cannot, in the absence of any objection to the amount of dam- judgment made and entered in the aboveages or assessment, review the regularity of the entitled cause on the 12th day of March, organization of the district and of the proceed- 1910, and from the whole thereof." ings leading up to the judgments appealed from.
The appellants do not claim, either in their [Ed. Note.-For other cases, see Drains, Cent. Dig. 88 84-87; Dec. Dig. $ 82.*]
assignments of error or in the arguments
made in support of their appeal, to be agDepartment 1. Appeal from Superior grieved by the judgment for damages made Court, Stevens County; D. H. Carey, Judge in their favor, or by the assessments made
Proceedings by the Calispel Diking Dis- upon their property, but confine their astrict No. 1, of Stevens County, Wash., by signments of error and arguments to quesand through D. R. Atherton and others, com- tions going to the validity of the organizamissioners of the district, to condemn land tion of the district, and to the regularity of for a right of way for a dyke, and for assess the proceedings which led up to the judg. ment on the lands benefited by the construc-ment of condemnation and the assessment of tion of the dyke. From judgments of con- benefits. The respondent contends that these demnation, and confirming the assessment of questions cannot be brought to this court by benefits, F. H. McLeish and others, freehold- an appeal from the judgment of condemnaers residing within the diking district, ap- tion and the judgment confirming the assesspeal. Affirmed.
ment of benefits, but insist that they must Skuse & Morrill, for appellants. R, L. be brought before this court by a writ of Edmiston, for respondent.
review, if the questions are reviewable at
all, arguing that an appeal only brings beFULLERTON, J. In the latter part of the fore the court the "justness of the amount year 1908, certain freeholders residing in a of damage or the assessment of benefits in portion of Stevens county requiring diking respect to the parties to the appeal." organized a diking district composed of such It is our opinion that this objection is territory, and elected three "dike commis- well taken. The provision of the diking sioners” to manage the affairs of the dis- statutes relating to appeals reads as fol
lows: "Every person or corporation feeling | 3. TRIAL (8 404*)—FINDINGS-CONSTRUCTION. himself or itself aggrieved by any judgment
In a suit for a partnership accounting in for damages or any assessment of benefits for a boat belonging to the firm, the trial judge,
a mining claim, alleged to have been received provided in this chapter, may appeal to the in his informal oral opinion 'in reciting the Supreme Court of the state within thirty transaction by which the claim was acquired, days after the entry of the judgment, and stated, “And then came the following really rosuch appeal shall bring before the Supreme have happened for the last century in the minCourt the propriety and justness of the ing camps of every western country, the trade amount of damages or assessment of benefit for boat-the boat that was lying there worthin respect to the parties to the appeal. Up- thought of whether plaintiff had any interest in
less;" that he did not think that the defendant on such appeal no bonds shall be required it or cared; that the owner of the mining claim and no stay shall be allowed.” Section 4107, said "the mine is no good," and defendant said Rem. & Bal. Code.
in reply, "the boat is no good, so we are even In Western American Co. v. St. Ann Co., trade was made;
that the court presumed that
as far as that is concerned," whereupon the 22 Wash. 158, 60 Pac. 158, we held that a defendant was glad to get rid of the boat, and similar provision in the general statute re that plaintiff had abandoned any idea of clạimlating to condemnation proceedings allowed remarks were not a finding that title to the
ing any interest therein. Held, that the court's an appeal only from the “propriety and just-boat passed from defendant. ness of the amount of damages in respect to [Ed. Note.--For other cases, see Trial, Cent. the parties to the appeal,” holding that the Dig. 88 957-962; Dec. Dig. $ 404.*] general statute of appeals had no applica- 4. APPEAL AND ERROR ($ 265*)— EXCEPTIONStion, for the reason that the condemnation
FINDINGS. statute was a special statute, and since the to statements made in an informal opinion in
It was not necessary for a party to except Legislature bad allowed only a limited ap- an equitable case in order to raise on appeal peal therefrom it was equivalent to a denial questions covered by such opinion. of the applicability of the broader provisions
[Ed. Note.-For other cases, see Appeal and of the general statute. Had the appeal been Error; Cent. Dig. $$ 1536–1551; Dec. Dig. 8 taken from the award of damages or the amount of the assessment, or had some ques En Banc. Appeal from Superior Court, tion been made concerning them, the court King County; R. H. Lindsay, Judge pro perhaps would have reviewed, under the au- tem. thority of the cases of State ex rel. McCor Action by Josh R. McIntyre against E. W. mick v. Superior Court, 43 Wash. 91, 86 Pac. Johnston and wife. From a decree for de205, and State ex rel. Port Townsend S. R. fendants, plaintiff appeals. Affirmed. Co. v. Superior Ct., 44 Wash. 554, 87 Pac.
Jay C. Allen and Blaine, Tucker & Hy814, the question involved in the immediate land, for appellant. Hughes, McMicken, procedure by wbich the damages were as- Dovell & Ramsey, for respondents. certained; but, since the only question sought to be raised goes to the validity of the pro PER CURIAM. This is a suit for a partceedings affecting the organization of the nership accounting. It is prosecuted by the diking district, and the judgment of con- plaintiff upon the theory that there was a demnation, they are not reviewable on ap- partnership formed between him and the depeal.
fendant E. W. Johnston in the year 1901 for The Judgments and orders sought to be ap- the purpose of conducting a towing business pealed from will therefore stand affirmed.
at Nome, Alaska, and that one of the small DUNBAR, C. J., and MOUNT, PARKER, boats constituting a part of the partnership and GOSE, JJ., concur.
property was traded by Johnston for a certain placer mining claim situated near Nome
in the summer of 1904, resulting in the (63 Wash. 323)
claim becoming the property of the partnerMCINTYRE V. JOHNSTON et ux. ship. While the suit was for a general part(Supreme Court of Washington. May 8, 1911.) nership accounting, there is, as we under
911.) 1. PARTNERSHIP ($ 336*)ACCOUNTING-PRO- stand the controversy, nothing here involvCEEDINGS-SUFFICIENCY OF EVIDENCE.
In a suit for a partnership accounting in-ed but the right of the plaintiff to an acvolving one-half interest in a mining claim counting from the defendant for a one-halt claimed to have been traded by defendant for a interest in the claim, or rather the proceeds boat belonging to the firm, evidence held to thereof. From a decree denying the relief show that the boat was not traded for the prayed for, the plaintiff has appealed. claim, but was sold upon trial, and afterwards returned by the buyer.
In the spring of 1901, appellant owned the [Ed. Note.--For other cases. see Partnership, hull of a small boat at Tacoma, in which he Cept. Dig. $ 797; Dec. Dig. $ 336.*]
proposed placing power, fitting it for use as 2. SALES ($ 204*)-SALES ON TRIAL.
a towboat at Nome. At that time he entered Where property is sold on trial or approv- into an arrangement with Johnston, by which al, title remains in the seller until the expira- Johnston was to furnish the means for intion of the time limited for trial.
[Ed. Note.--For other cases, see Sales, Cent. stalling the power in the boat, consisting of Dig. $8 557, 558; Dec. Dig. 204.*]
two gasoline engines, and also means for the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
transportation of the boat to Nome. By this amount of the investment Johnston had in arrangement Johnston was also to furnish the boats. Later one of these boats was means for the transportation of appellant burned on the beach some distance from and his family to Nome. Johnston was not Nome, and thereafter her engine was recorto be actively engaged in the operation of ered by Johnston. It seems clear that there the boat, but its operation was to be carried was no pretense of carrying on the business on by appellant, who was to be paid a sal. contemplated by the partnership agreement ary therefor from the earnings of the boat after the summer of 1901, or, in any event, before the division of any profits. When the not after the summer of 1902. Johnston boat arrived at Nome ready for its proposed seems to have exercised entire control and use in the summer of 1901, Johnston had ad-ownership over the two Pup boats after that, vanced means towards the enterprise a great and appellant seems to have exercised own. deal more in amount than appellant had; ership over the hull of the first boat, at least and it was understood that Johnston should it was stored close to his place of business he repaid the excess he had put into the en- at Nome, and was later sold by his repreterprise over what appellant had put in. sentative there, and no account made there This excess was first to be repaid to John- for to Johnston. Neither has Johnston ever ston from the net earnings of the boat, and accounted to appellant for the Pup boats. thereafter the net earnings were to be di- There does not seem to have been any formal vided equally between appellant and John- accounting of the partnership affairs nor ston, and each was to be considered as own- any formal agreement for division of the ing equal shares in the boat. This under-partnership property. It seems highly probstanding was not reduced to writing, and able from the record that Johnston has at was loosely entered into. Some contention all times had considerably more invested in is made that the arrangement then entered the enterprise than appellant. In the fall of into did not in law amount to a partnership 1901 appellant appears to have been conagreement. We will not attempt to solve ducting a storage business at Nome, and he that problem, nor have we attempted to state then received for storage from Johnston one what the understanding of the parties was dynamo, and one box of tools, part of the with any great degree of accuracy; but will apparel of one or the other of these Pup assume that they did then enter into part- boats. He gave Johnston a receipt for these, nership relations substantially upon the indicating that he regarded them as Johnterms we have indicated. Upon appellant ston's property. In the summer of 1902, apattempting to operate the boat at Nome, it pellant, with a partner, was conducting a proved to be practically worthless for the machinery and storage business at Nome unpurpose intended, and it was unable to earn der the name of Josh R. McIntyre & Co. anything of any consequence. Indeed, it is They then performed mechanical work upon very doubtful as to whether or not it ever one or possibly both of these Pup boats for earned sufficient to pay the expense of oper- which appellant collected from Johnston the ation, In July, 1901, the boat ceased to entire amount charged therefor, amounting be used in the partnership business; both to $141.38, appellant receipting payment appellant and Johnston assenting thereto. therefor in his own name. These are among Thereafter there was acquired at the ex- the circumstances indicating the termination pense of Johnston two other small boats, in of partnership relations between appellant each of which was placed one of the engines and Johnston, and that appellant regarded taken from the first boat. The installing of Johnston as the owner of the Pup boats. In these engines was also done at Johnston's the summer of 1904 Johnston was offered expense. The boats were given the names the mining claim in question for $150. There of "Pup No. 1,” and “Pup No. 2." The is some controversy as to who offered the earning power of these boats proved no bet-claim to Johnston, and as to who negotiated ter than that of the first boat. In the fall the deal with him by which he acquired title of 1901 one of these boats was tied to a to the claim in the name of his wife. Howschooner anchored at Nome, and during a ever this may be, it is plain that whoever storm the schooner was obliged to put to Johnston made this deal with had the ausea, carrying the small boat with her. This thority to do so either as the owner or repsmall boat eventually fell into the bands of resentative of the owners of the claim. a United States marshal at Dutch Harbor, Johnston testified to the bargain then made and was sold. The following spring, 1902, relative to the consideration for the claim Johnston recovered this boat at Dutch Har- and the return of the boat as follows: "Q. bor while on his way north from Seattle to At the time you made the trade of the Pup Nome, put it on board ship, and carried it for the mining claim, or the interest in the back to Nome. It might well be argued that mining claim, explain to the court the condithe circumstances under which he recovered tions under which the trade was made and this boat resulted in its becoming his prop. what guaranty you had to give, if any, pererty, regardless of any partnership relations taining to the boat? A. They wanted $150 between him and appellant. In any event, for the claim, and then we got talking about the recovery of the boat was accomplished at the boat, and I said, 'I will trade you the
they were not sure if they could make it run, more than a sale of the boat upon trial or and I said, 'If you want to make the deal, approval; and, it having been returned in you can, and, if you cannot make the boat compliance with the original agreement, its run, bring it back, and I will give you $150 title never passed from Johnston. for it.' And a short time after they came  The rule governing such a transaction back and asked if I would stand by my bar- is stated at 35 Cyc. p. 289, as follows: "A gain, and I said: 'I have to. Cannot you sale on trial or approval is in the nature of make it run?' And they wanted to know if an option to purchase the goods if they I would stand by my word, and Maynard prove to be satisfactory, or a sale upon contried it. That was some time in the fall of dition precedent, and its operation as re1904, and when I came in, in the spring of gards the transfer of title is to be distin1905, Maynard came to me, and said, 'I have guished from what is commonly known as a that boat here,' and I paid him $150 and took sale or return. Where goods are sold on the boat. Q. Did you fulfill your guaranty trial or approval or if satisfactory to the to take the boat back if they could not make buyer, the contract is executory, and the it operate? Did you give them $150? A. I property in the goods does not pass until the did. Q. When did you give him the $150 for buyer has expressly or impliedly manifested the boat back? A. Some time in 1905. I his approval or acceptance, unless a differthink in July or August. Q. Before or aft- ent intention appears; but acceptance and er gold was struck on this claim? A. Long approval to pass title in the goods may be before."
express, or may be implied from the conduct At the time of acquiring the claim, it was of the buyer, as by his failure to reject and plain that neither it nor the boat was re- return the goods.” In Benjamin on Sales garded as of any more than nominal value. (Bennett's 7th Ed.), at page 606, the rule is No gold had been taken from the claim, nor stated as follows: "In sales on trial, or a dewas there any prospect that there would be. livery with a right to buy if one likes, the The boat had been little else than a failure, party has a reasonable time for trial, if none and was valued by Johnston and his wife is expressly mentioned, and until that time, accordingly. When the boat was taken back or the expiration of the limited time, the by Johnston, neither it nor the claim had title and risk is in the vendor.” This docany apparent different value than at the trine is supported by abundant authority, time the deal was originally made. This  Some contention is made that we ought boat has remained in Johnston's possession not to conclude that the title of the boat did ever since he took it back and paid the $150. not pass from Johnston because the trial There was some effort to make it appear court found otherwise, and no proper excepthat Johnston bought the boat back for use tion was taken to such finding. When the in his business, without reference to any cause was submitted to the court after arguagreement he had made to take it back at ment, the trial judge rendered an oral opinthe time of acquiring the claim. We think, ion of considerable length, in which he rehowever, that the testimony of Johnston viewed the history of the relations of these above quoted stands practically uncontra- parties in an informal manner. There were dicted. At the time he took the boat and no specific findings of fact or conclusions of paid the $150, there was no apparent reason law stated separately. At that time counsel for his seeking to prevent the boat becom- asked for findings to be made. This the ing the consideration for the claim. Gold judge declined to do, and at the conclusion was not discovered upon the claim so as to of his oral opinion stated that his remarks render it of apparently any greater value could be written out by the stenographer and than when Johnston first acquired it, until filed in the case and considered as the findlong after the return of the boat. We think ings. This was done later, and thereafter the record furnishes no reason for doubting some exceptions were taken thereto by rethat the boat was conditionally traded for spondents' counsel, which it is claimed were the claim as testified to by Johnston. We not taken within the statutory time. The have given no attention to the question of nearest to a finding upon this question was the claim being Mrs. Johnston's separate an informal statement by the judge which property. This suit was commenced in was in keeping with the balance of his oral March, 1909, about seven years after the opinion, as follows: "And then came the partnership had ceased to do business, dur- following really romantic, somewhat strange, ing all of which time no accounting was circumstances that have happened for the made by either appellant or Johnston.
last century in the mining camps of every  It seems clear to us that, so far as western country—the trade for boat-the any accounting by Johnston to appellant for boat that was lying there worthless, a piece the claim or the proceeds thereof is concern- of junk, and Capt. Johnston traded the boat ed, the decree of the trial court must be sus for the mine. I do not think that Capt. tained upon the ground that the boat never Johnston gave a single moment's thought to became the consideration for the claim, even whether McIntyre had any interest in the assuming that the boat was partnership prop- boat or not. I don't think he cared. The erty at the time of acquiring the claim. The man who had the mine said "The mine is no trade of the boat for the claim was nothing good,' and Johnston said in reply, "The boat
is no good, so we are even so far as that is
(63 Wash. 334) concerned.' But the trade was made. I pre STRAND et ux. v. GRIFFITH et al. sume Capt. Johnston looked at the boat as (Supreme Court of Washington. May 10, 1911.) a sort of hoodoo, and was more than pleased 1. CONSTITUTIONAL LAW (8 170*)-IMPAIRING to get rid of it. In the meantime McIntyre OBLIGATION OF CONTRACTS. had left there and came down to Seattle. I A statute, providing that the sheriff, on think that McIntyre, when he came down foreclosure, shall indorse thereon a description
receiving the writ of execution in a mortgage here, gave up all thought of and absolutely of the property to be sold, and that one year abandoned—I do not know any better word after the filing of a copy of the writ he shall to use in connection with it-absolutely give notice that the property levied on will be
sold to satisfy the judgment, cannot apply to abandoned any idea of claiming any inter- a mortgage executed prior thereto and governed est whatever in any of that property." We by a statute declaring that a decree of foredo not regard this as a specific finding of the closure shall be enforced by execution directed nature of the contract entered into, which sell the premises, for the statute, if applicable
to the sheriff, who shall forthwith proceed to resulted in the acquiring of the claim. It to such a mortgage, impairs the obligation of no way negatives the fact that this trade of the mortgage contract. the boat was conditional.
[Ed. Note.--For other cases, see Constitution Aside from this, we do not think that 170.*]
al Law, Cent. Dig. $8503-510; Dec. Dig. $ an informal opinion rendered as this was in 2. CONSTITUTIONAL LAW (8 173*)—IMPAIRING a case of purely equitable cognizance calls OBLIGATION OF CONTRACT. for exceptions to statements made therein. Under the rule that the Legislature may Had there been formal findings of fact and make changes in the remedy without affecting
the obligation of contracts, a statute prescribing conclusions of law covering the controversy, the notices on a foreclosure sale and changing there might be some reason for contending the existing law on the subject is applicable to that we ought not to look beyond the find- a mortgage executed prior to its adoption. ings not excepted to. We therefore think it al Law, Cent. Dig. $ 515; Dec. Dig. § 173.*]
[Ed. Note.-For other cases, see Constitutionwas immateriál as to whether or not excep
3. MORTGAGES (8 526*)-FORECLOSURE-IRREGtions were taken by counsel for respondent
ULARITIES. to the statements made in the court's opin The failure to post on the land a notice of ion.
its sale under mortgage foreclosure and to pubThe trial court apparently denied the re- lish a copy of the notice in the county official
paper as required by statute is a mere irregulief prayed for upon the ground that the larity warranting the court to refuse to conpartnership was abandoned about 1902, and firm the sale, but does not make the sale void, that while there had been no formal settle- and an order of confirmation cures the irregu
larity. ment of the partnership business, nor any
[Ed. Note.-For other cases, see Mortgages, specific agreement as to a division of the Cent. Dig. $S 1530-1534; Dec. Dig. $ 526." partnership property, the lapse of time since 4. MORTGAGES (8 529*)-FORECLOSURE SALEthe abandonment of the partnership business SUIT TO SET ASIDE-LACHES. and the assumption of ownership by John An unexplained delay of nine years before ston of the Pup boats precluded a recovery justifies a denial of relief because of laches on
suing to set aside a mortgage foreclosure sale by appellant. Since the decree denying the any ground other than the actual invalidity of relief prayed for seems to us so clearly sus- the sale. tainable upon the ground that the boat never [Ed. Note.-For other cases, see Mortgages, became the consideration for the claim, we Cent. Dig. $$ 1537–1548; Dec. Dig. $ 529.*j deem it unnecessary to discuss other ques
Department 1. Appeal from Superior tions, though we think the ground upon Court, Whatcom County; John A. Kellogg, which the trial court based its decision is
Judge. also sufficient to prevent appellant's recov
Action by H. B. Strand and wife against ery.
J. M. Griffith and others. From a judgment The decree is affirmed.
of dismissal, plaintiffs appeal. Affirmed.
Blaine, Tucker & Hyland, for appellants.
Hadley, Hadley & Abbott and Dorr & Had(63 Wash. 696)
ley, for respondents. BURR v. DYER et al. (Supreme Court of Washington. May 10, 1911.)
FULLERTON, J. On February 15, 1897,
the appellants, who are husband and wife, En banc. On reargument. Former judg. executed and delivered to the respondent J. ment adhered to.
M. Griffith a mortgage upon certain real For former opinion, see 111 Pac. 866.
property situated in Whatcom county, to
secure the payment of the sum of $4,800, PER CURIAM. A rehearing was granted with interest, six months from date. The in this case. Upon reargument of the case debt evidenced by the mortgage was not paid to all the members of the court, a majority at maturity, and proceedings were institutare satisfied with the result reached.
ed' to foreclose the same on November 3, The judgment is therefore affirmed. 1897. Summons on the complaint was duly