just after the respondent had returned from a private sanitarium. The ostensible purpose of procuring the meeting was to effect a reconciliation between the appellant and respondent and induce her to live with him again as his wife, and at the meeting this proposition was made to respondent by the thereafter removed to Pierce county, taking the appellant for that purpose, and was held up their residence at Orting. At the lastnamed place they lived together until the summer of 1912, when the respondent left the appellant. On September 12, 1912, shortly after the separation, the appellant procured from the respondent a deed to the Tacoma property, purporting to convey to him the community interest of the respond- appellant. On her refusal to again live with ent therein, executing to her an agreement wherein he promised to pay her $15 per month so long as she conducted herself with propriety and remained his wife. After procuring the deed and executing the agreement, he commenced an action of divorce against her, obtaining a decree therein on February 4, 1912. Subsequent to the separation, and prior to the divorce, the appellant gave the respondent small sums of money and paid small bills for her, and subsequent to the execution of the deeds and the agreement paid the sums stipulated to be paid in the agreement until the entry of the divorce decree; the whole aggregating, as the court found, about $65. The decree of divorce made no mention of the property rights of the parties, and the appellant has contributed nothing to the support of the respondent since its entry. On July 12, 1913, the respondent began the present action against the appellant to set aside the conveyances made by her purporting to convey to the appellant her community interest in the Tacoma property, basing her cause of action upon want of consideration, and fraud and deceit on the part of the appellant. Issue was taken on the complaint, and a trial had which resulted in a decree canceling the conveyances. From the decree this appeal is prosecuted. The appellant's assignments of error question the sufficiency of the evidence to sustain the decree. This evidence we shall not review in detail, but, in our opinion, it fully justifies the conclusion of the trial court. [1] In the first place, the property was conveyed for a wholly inadequate consideration. It is true the appellant testified that the greater part of the property given in exchange for it was his separate property, but it was not denied that his wife's homestead went with his in the exchange, and the cash differences were paid out of moneys earned during the marriage relation. His homestead may have been of greater value than hers, but her interest in the property, if less than an entire community interest, was certainly much greater than the inconsiderable sum she received for it. Again, we think the evidence justifies the conclusion that the respondent did not fully understand the effect of the instruments executed. They were executed at a meeting of the parties held in the office of the appellant's attorney, at which the respondent had no representative or legal adviser. The meeting was brought about by a person employed by the appellant, a settlement was proposed, and the deeds and contract were then executed. But we cannot believe that the effort at reconciliation was made in good faith. If the appellant's witnesses are to be believed, he then knew that the respondent had not conducted herself with propriety since their separation; that she had been "consorting" with Greek men, and that "Greeks were running to her room." Again he testifies that he figured he could not get ahead by being married; that he wanted deeds so he could handle the property, so he could do something, and not "set there like a bump on a log." With this knowledge and this idea in mind, it is hardly possible that he desired a reconciliation, and we can but believe that his object in broaching it was to distract his wife's mind, which, perhaps, is not of the strongest, from his real purpose. This thought is supported by the haste in which he began an action for divorce against her after the instruments were executed. [2] But we shall not pursue the inquiry. The law is well settled that the burden is upon the husband to show that a transfer made to him by his wife for an inadequate consideration was made freely, and that the. transaction was fair and just. There is no such showing in the present case, and the judgment will stand affirmed. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Department 2. Appeal from Superior | pany had assigned its claim to the plaintiff Court, Pierce County; W. O. Chapman, Berne. Judge. Action by Frederick Berne against Charles W. Maxham and others. Judgment for the plaintiff, and defendants appeal. Affirmed. Marx & Conger, of Tacoma, for appellants. L. B. da Ponte and J. W. Quick, both of Tacoma, for respondent. MOUNT, J. This action was brought to recover damages upon an injunction bond. The case was tried to the court without a jury, and resulted in a judgment in favor of the plaintiff for $650. The defendants have appealed. It appears from the record in the case that on July 29, 1913, the defendant Maxham brought an action in the superior court for Pierce county against Frederick Berne, the city of Tacoma, and the Bankers' Trust Company, praying for an injunction restraining Berne from collecting about $13,000 from the city of Tacoma, also restraining the Bankers' Trust Company from collecting any part of that sum. Upon an ex parte application in that action, the court granted a temporary injunction, as prayed for in the complaint. A bond was fixed in the sum of $3,000, which was executed by the United States Fidelity & Guaranty Company. This bond recites that: "In consideration of the premises and for the issuing of the said injunction do hereby jointly and severally undertake in the sum of $3,000 and promise to 'the effect that, in case said injunction shall issue, the said plaintiff will pay to the said defendants enjoined such damages, not exceeding the sum of $3,000, as such parties may sustain by reason of the said injunction, if the said superior court finally decide that the said plaintiff was not entitled thereto." Upon the service of a show-cause order, the plaintiff Berne and the Bankers' Trust Company employed counsel to resist the injunction and to have the temporary order dissolved. Proceedings were thereafter had in the case, and on August 29th the temporary order was modified, so that the defendants were restrained from collecting any part of $2,250. Thereafter, on September 2, 1913, on motion of the defendants, the injunction was dissolved. The order entered recites: The appellant here makes three assignments of error: First, that there is no liability upon the bond as a matter of law; second, that the findings of the court to the effect that the plaintiff had incurred an expense of $500 as attorneys' fees, that said sum was reasonable, and that the Bankers' Trust Company had incurred $150, and that the same was reasonable and incurred solely in procuring the dissolution of the injunction, are not supported by the evidence; and, third, in any event, the damages allowed were excessive and not warranted by the evidence. [1] In support of the first assignment, counsel for the appellants argue in effect that no attorneys' fees are recoverable, because the attorneys were employed to defend the whole case rather than to obtain a dissolution of the restraining order. Donahue v. Johnson, 9 Wash. 187, 37 Pac. 322, Collins v. Huffman, 48 Wash. 184, 93 Pac, 220, and White Pine Lbr. Co. v. Etna Indemnity Co., 42 Wash. 569, 85 Pac. 52, are cited in support of this contention. As was stated in Donahue v. Johnson, supra: "The commonly accepted rule is that reasonable compensation paid as counsel fees, paid in procuring the dissolution of an injunction, may be recovered in an action on a bond. 2 High, Injunctions (3d Ed.) § 1685. But counsel fees thus allowable must be those connected with the motion, or other similar proceeding for the dissolution of the injunction, and do not cover the general expenses of defending the merits of the action." It is plain, from these decisions, that, if counsel fees are incurred solely in the dissolution of the injunction, they are recover|able against the bond. It is also plain from the evidence in the case that counsel were employed by the two defendants named in the injunction suit to dissolve the injunction; that the only services they performed in the case were in procuring the dissolution of the injunction; and that these services were successful. The court found upon their motion that the injunction was wrongfully sued out as to both defendants. They were clearly entitled, therefore, under these cases, to recover counsel fees therefor. [2] On the next assignment of error it is argued that the evidence fails to show that either Mr. Berne or the Bankers' Trust Com fees. "That the injunction heretofore issued herein was wrongfully sued out as to both defendants, F. Berne and Bankers' Trust Company, * and that the same should be dissolved pany incurred any liability for attorneys' and set aside; and it is so ordered, adjudged, It is true that the Bankers' Trust and decreed." Company agreed upon no specific fee with Thereupon the plaintiff in that action upon their counsel. But the evidence clearly shows motion caused the case to be dismissed. This that they employed the same counsel that action was thereupon brought against Max- Mr. Berne had employed, and it was clearly ham and the United States Fidelity & Guar-liable for a reasonable fee which it was anty Company, surety upon the bond. The obligated to pay. The evidence also shows plaintiff alleged that he had been damaged that the agreed fee between Berne and the in the sum of $500 for attorneys' fees in se- same counsel was $500 for representing his curing the dissolution of the injunction, and separate interests. that the Bankers' Trust Company had been damaged in the sum of $150 for the same It is finally argued that the damages allowed are excessive and unwarranted by the the testimony upon the question of what the respondent's claim to the commissions would be a reasonable fee in the case. But agreed upon, and the respondent brought the we are satisfied that the trial court found present action to recover the same. The in accordance with the weight of the evi- cause was tried, after issue joined, by the dence. The amount allowed is not unrea- court sitting with a jury, and a verdict resonable, in our opinion. turned in the respondent's favor for $500. The judgment of the trial court is there- From the judgment entered upon the verdict, fore affirmed. this appeal is prosecuted. [1] In their first assignment of error the CROW, C. J., and MAIN, FULLERTON, appellants question the sufficiency of the eviand ELLIS, JJ., concur. (82 Wash. 222) BAGLEY v. FOLEY et al. (No. 11863.) (Supreme Court of Washington. Nov. 14, 1914.) dence to justify a recovery on the part of the respondent. Our examination of the record, however, convinces us that the evidence was sufficient in this respect. Without entering upon an extended review of the testimony, it tended to show that the purchaser was in 1. BROKERS (§ 88*)-COMPENSATION-EVI-troduced to the appellants by the respondent, DENCE. Bagley; that he took the purchaser out to In an action by a broker for compensation, examine the land at two different times, at evidence held sufficient to go to the jury. [Ed. Note. For other cases, see Brokers, Cent. Dig. 88 121, 123-130; Dec. Dig. § 88.1 2. BROKERS (§ 83*) - COMPENSATION-RIGHT ΤΟ "PROCURING CAUSE." CAUSE" EFFICIENT Though there may be a shade of difference between the expressions "procuring cause" and "efficient cause," the expressions are substantially the same, and an instruction authorizing a verdict for a broker in case he was the procuring cause of the sale is correct; for in such case he is entitled to his commission. [Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.* For other definitions, see Words and Phrases, First and Second Series, Procuring Cause, Efficient Cause.] 3. TRIAL (§ 260*)-INSTRUCTIONS-REFUSAL. Where the instructions given fully covered the case, the refusal of other requests is not error. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] Department 2. Appeal from Superior Court, Yakima County; Thos. E Grady, Judge. Action by H. N. Bagley against Francis Foley and others. From a judgment for plaintiff, defendants appeal. Affirmed. Stephen E. Chaffee, of Sunnyside, for appellants. O. L. Boose, of Sunnyside, for respondent. FULLERTON, J. In June, 1912, the appellants listed with the Sunnyside Land & Investment Company, a real estate broker, certain lands owned by them, situated in Yakima county, for sale on terms expressed in a written memorandum, agreeing to pay, in case a purchaser should be found for the property, a stated commission. On September 6th of the same year the appellants listed the same property with the respondent, Bagley, likewise a real estate broker, to be sold on substantially similar terms. The property was subsequently sold to one G. F. Randel, on terms satisfactory to the owners; each of the brokers contributing towards the result, although acting separately, and not jointly. The appellants refused to recognize the latter of which the terms on which the purchase could be made were discussed with the owners, and a tentative agreement in Writing entered into for a sale of the property; that a part of the purchase was to be paid by the exchange of certain property situated in another state, and that the appellants wished to inquire further as to its value before closing the deal; that a telegram was prepared by one of the appellants and forwarded by the respondent making the inquiry, to which an answer was returned which proved satisfactory to the owners; that at this stage of the trade the other agent took up the negotiations and closed the deal substantially upon the terms agreed upon. The question was, therefore, which of the agents was the procuring cause of the sale, and we think the jury could rightfully find in favor of the respondent. It is true there was a conflict in the testimony as to some of the facts mentioned, and it may be that the testimony would have justified a finding for the other side. But to determine on which side the truth lay was within the peculiar province of the jury, and this court, at least, must accept their findings on conflicting evidence as conclusive. [2] The court, among others, gave to the jury the following instructions: "In order for the plaintiff to recover in this case, he must prove to your satisfaction by a fair preponderance of the evidence that he was employed to procure a purchaser for the property in question, and that, pursuant thereto, he did find a purchaser ready, able, and willing to purchase, and brought such purchaser and defendants together. And in this connection you are instructed that, if you believe from the evipurchaser for the property of the defendants, dence that the plaintiff was employed to find a and, pursuant thereto, did find a purchaser who, through the efforts of the plaintiff, purchased defendants' property upon the terms specified in the listing contract, or as subsequently modified, or upon different terms agreed to between the defendants and such purchaser, and that the plaintiff was the procuring cause of the sale, then your verdict will be for the plaintiff." "A seller is not obliged to pay two commissions where two brokers are engaged in selling his property, unless, after one has procured a For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes purchaser ready, able and willing to purchase | therefore error to fail to include them, conupon terms acceptable to him, he deals through ceding them to be correct statements of the another, or in some way colludes with him to deprive the other broker of the fruits of his law and applicable to the issues. labor, and in this case, if you find that the plain- The judgment is affirmed. tiff produced a purchaser ready, able, and willing to purchase upon terms satisfactory to the defendants, and that a sale was made which you believe the plaintiff was the procuring cause thereof, the fact that the defendants may have dealt through another broker and paid him a commission does not take away the right of the plaintiff to recover in this case." Arguing against the correctness of these instructions, the appellants' counsel says: "These instructions might have been given had the controversy arisen between the owner and the broker with the property listed with only said broker. In other words, the rule of law which the court laid down to the jury is not the rule of law where property is listed with more than one broker. The rule laid down in the case of Frink v. Gilbert, 53 Wash. 392, 101 Pac. 1088, and Dore v. Jones, 70 Wash. 157, 126 Pac. 413, is that 'the one who is the efficient cause of the sale is entitled to the commission.' 'Efficient' means one who secures result's. The court used the word 'procuring' instead of the word 'efficient,' and based the entire instruction on whether or not the respondent was the procuring cause of the sale, and uses the word 'procuring' in a very loose man "The property was listed with two agencies, and the only question open is which one was the efficient procuring cause of the sale." In the second case the court quoted certain of the language used in the earlier case with approval. But an examination of the cases themselves will show that neither of the judgments was rested upon any supposed differences between the meanings of the phrases "procuring cause" and "efficient cause." As applied to the efforts of a broker in the sale of property of his customer, the phrases have substantially, if not quite, the same meaning. But, admitting a shade of difference, it would be too much of a refinement to hold that a broker cannot recover commissions where he is only the "procuring cause" of the sale, but can so recover where he is the "efficient cause." We cannot think, therefore, that the instructions complained of are objectionable for the reasons suggested. [3] Error is also assigned on the refusal of the court to give certain requested instructions. But the court's charge, as a whole, was a correct statement of the law of the case, commendable for its conciseness and brevity. It would not have been improved upon by including the requests. It was not CROW, C. J., and PARKER, MORRIS, and MOUNT, JJ., concur. (82 Wash. 343) AUSTIN v. PETROVITSKY. (No. 12112.) (Supreme Court of Washington. Nov. 21, 1914.) 1. APPEAL And Error (§ 564*) STATEMENT OF FACTS-TIME FOR FILING. Where judgment was entered on November 6, 1913, and a motion for a new trial filed on November 15th, and denied on November 22d, a proposed statement of facts filed on January 23, 1914, and certified by the trial judge on February 14th, will be stricken on motion; there having been no valid extension of time for filing the statement of facts. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. § 564.*] 2. APPEAL ANd Error (§ 564*)—STATEMENT OF FACTS-TIME FOR FILING. An ex parte order extending the time for filing a proposed statement of facts is void, and a statement filed within the time as so extended will be stricken on motion. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2501-2506, 2555-2559; Dec. Dig. § 564.*] MORRIS, J. [1, 2] The respondent moves to strike the statement of facts and to affirm the judgment of the lower court. The record shows the entry of judgment on November 6, 1913, the filing of a motion for new trial on November 15th, and the denial of the same on November 22d. On January 23, 1914, appellant filed his proposed statement of facts, and on the 14th day of February, 1914, the same was certified by the trial judge. It needs but a glance at these dates to show that respondent's motion is well taken. The record does not show any extension of time for filing this proposed statement of facts, although respondent, in his brief in support of the motion, states that on the 7th day of January, 1914, appellant obtained an ex parte order extending the time for filing the proposed statement. The obtaining of this ex parte order places appellant in no better position than if he had filed his proposed statement of facts without such an order, since, under our statute, an order extending the time for filing the statement of facts ob tained ex parte is clearly void. Michaelson, plaintiff is the owner of land aggregating v. Overmeyer, 77 Wash. 110, 137 Pac. 332. about 170 acres in the Snohomish river valUpon the authority of the above case ley, Snohomish county, Wash., a part of and those therein cited, respondent's motion which is improved for agricultural purposes; must be and the same is granted; and, and the remainder is in its wild state. The since without the statement of facts the defendant is a railroad corporation organized appeal presents no questions which can be and existing under the laws of the state of passed upon by the court, it follows that the Washington. In the year 1910 the plaintiff's judgment of the lower court must be, and premises included a meadow of about 60 the same is, affirmed. acres which had been made fit for cultivation by clearing and drainage, the same being CROW, C. J., and CHADWICK, PARKER, a part of an extensive district of low bottom and GOSE, JJ., concur. (82 Wash. 204) BOYCE v. CHICAGO, M. & P. S. RY. CO. (No. 11747.) (Supreme Court, of Washington. Nov. 14, 1914.) land unfit for cultivation until properly drained. The Great Northern Railway Company had constructed its railroad upon an embankment across this meadow, its line running northwesterly from Monroe towards Everett. In the year 1910 the defendant purchased from the plaintiff a right of way 1. APPEAL AND ERROR (§ 1175*)—REVERSAL-across one of the subdivisions of the land JOINDER OF SEPARATE CAUSES OF ACTION. Error in joining two or more causes of action without separately stating them results only in a reversal of the judgment, and not a dismissal of the cause. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4573-4587; Dec. Dig. 1175.*] 2. JUDGMENT (§ 199*)-MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT-TIME. Where judgment was entered upon a ver dict immediately upon its return, a motion for judgment non obstante veredicto, not made until the day following, was too late. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. § 199.*] 3. JUDGMENT (§ 256*)-CONFORMITY TO FIND ING. mentioned. This right of way strip was 125 feet wide and was located on the northeasterly side of the Great Northern's right of way, and was contiguous and parallel thereto. The defendant paid the agreed price for this strip of land, and accepted a deed which contained recitals of agreements on the part of the defendant to take care of certain surface waters, and to provide underground and overhead crossings, ditches, and fences. During the years 1910 and 1911, the defendant constructed a railroad on its right of way across the plaintiff's land. In his second amended complaint the plaintiff claims damages resulting from a breach of certain provisions of the right of way deed which were made for his benefit. The facts upon which the right of action is predicated are found in paragraphs 4 to 9, inclusive. A copy of the In an action for damages to real estate, live stock, etc., from defendant railroad's breach of a written right of way agreement in certain particulars, where the evidence was as to damages in a lump sum, which might have been sustained by reason of plaintiff's failure to prop-right of way deed is attached to the comerly care for the ditches, etc., a finding that plaint, and by reference thereto as "Schedplaintiff had not exercised ordinary care to keep ule A" is made a part thereof. The parathe ditches open would not require a judgment graphs of this complaint referred to set out for only nominal damages. with some detail the particulars in which the plaintiff has been damaged, and the source of such damage. To this second amended complaint the defendant demurred on the [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.*] Department 1. Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge. Action by Peter E. Boyce against the Chicago, Milwaukee & Puget Sound Railway Company. Judgment for plaintiff, and from the denial of his motion for a new trial he appeals, and from a denial of its motion to enter judgment for plaintiff for only nominal damages, notwithstanding the verdict, defendant appeals. Affirmed. ground that several causes of action were ruled, and an answer was filed containing improperly united. The demurrer was overadmissions, denials, and an affirmative defense. To the affirmative matter in the answer a reply was presented. Upon the issues thus framed the cause was tried to a jury, and resulted in a verdict for the plaintiff in the sum of $3,000. The verdict was returned on the 8th day of May, 1913. Thereupon the court directed that judgment be entered by the clerk upon such verdict. On the day following, May 9th, the defendant moved that the general verdict of the jury be set aside, and that a judgment notwithstanding MAIN, J. This is an action to recover the verdict be entered for the plaintiff for damages for alleged injuries to real estate nominal damages only, but did not move for and live stock, and for losses consequential to a new trial. The plaintiff moved for a new an alleged interference with the plaintiff's trial. These motions being overruled by the business as a farmer and dairyman. The superior court, both parties appealed. F. M. Dudley, G. W. Korte, and C. H. Hanford, all of Seattle, for appellant. Vince H. Faben, of Seattle, and C. H. Graves, of Everett, for respondent. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |