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through any negligence to a collision with another car, which had been approaching on the wrong side of the road, but which, simultaneously with plaintiff, swerved toward the other side when the collision occurred, the court maintaining that plaintiff was justified in taking the course which he did, which, at the most, was but a few seconds before what apparently would have been a head-on collision had he not changed his course.

And in Noyes v. Katsuno (1920) 111 Wash. 529, 191 Pac. 419, it was held that defendant could not be heard to say that plaintiff was guilty of negligence in turning to the left side of the street to avoid a head-on collision with defendant's car, where the wrongful act of defendant created the condition of apparent sudden peril under which plaintiff made the turn.

In Lee v. Donnelly (1921) Vt. 113 Atl. 542, where plaintiff, in attempting to avoid colliding with defendant's automobile, which, without warning, was suddenly backed into the street, turned too far to the left and went over an embankment, it was held that the question whether his act in so turning to the left instead of attempting to pass to the right constituted negligence precluding recovery was one for the jury, since the prudence of his act, in view of the sudden emergency with which he was confronted, should not be measured by the rule which would be applied in case there was time for deliberation. The court said: "Beset as Peets was, the plaintiff's evidence tends to show, with a sudden and unexpected danger engaging and concentrating his whole attention at the time upon

the manner of avoiding it, his conduct, in determining whether he acted as careful and prudent man, should not be measured by the rule applied to a man under no excitement, with time to deliberate. In such circumstances as Peets was placed, he had no time to deliberate. He had to act instantly, and if he acted, in the light of all the surrounding circumstances, as a careful and prudent man would reasonably act under like circumstances,

he did all the law required of him. Whether he did this was a question for the jury.”

In Hatch v. Daniels (1922) 117 Atl. 105, where defendant had wrongfully stopped his car in the dark and on the wrong side of the road, in holding that the plaintiff's action in attempting to stop instead of turning sharply to the left and passing on that side, was a question of fact for the jury, he having had but one and one-quarter seconds in which to decide what to do, and the course which he took having been one of safety had not the grass under his right wheels been frosty and slippery, the court said: "When one is confronted with a sudden peril, as the plaintiff was, he is not held to the exercise of the same degree of care as when he had time for reflection. . The law recognizes the fact that a prudent man, so brought face to face with an unexpected danger, may fail to use the best judgment; may omit some precaution he could have taken; may not choose the best available method of meeting the dangers of the situation.

When one, without his own fault, but through the negligence of another, is so situated, he is not ordinarily, if ever, chargeable as matter of law with contributory negligence if, in attempting to escape the danger, he makes a mistake in the method adopted. The question is, What would or might a prudent man, in the same circumstances, do?"

In Henderson v. Dimond (1920) 43 R. I. 60, 110 Atl. 388, where plaintiff was forced off the road by defendant's reckless conduct, it was held that he could not be held guilty of contributory negligence as a matter of law because he did not stop before he struck a pole, the court having declared that, under the stress of the sudden emergency created by defendant's wrongful conduct, it did not necessarily constitute negligence on the plaintiff's part to attempt to get his automobile back into the road, rather than to attempt to stop suddenly in a wet ditch.

In Lebsack v. Moore (1918) 65 Colo. 315, 177 Pac. 137, in holding that the rider of a motorcycle, who, at the apex


of a hill, was forced instantly to de- In McGinitie v. Goudreau (1921) 17 cide whether he would attempt to Alberta L. R. 100, 3 West. Week. Rep. drive between two approaching cars, 250, 59 D. L. R. 552, in holding that one of which was traveling at a very where an interval of time sufficient high and unlawful speed, or to pass to have enabled the plaintiff to return to the side of the rapidly moving to the road, after defendant had car, could not be held guilty of contrib- forced him therefrom, followed his utory negligence because he made leaving the same, had he not lost his a possible error of judgment, the trial head, it was held that the emergency court correctly instructed the jury as rule did not excuse the accident. The follows: "A party, suddenly realiz

court said that “the excitement of the ing that he is in danger from the neg- plaintiff” was not sufficient to excuse ligence of another, is not to be

him, "for it surely must be assumed charged with contributory negligence

that in driving a dangerous engine for every error of judgment, when

such as a motor car one must expect practically instantaneous action is re

emergencies, and a few surprises, and quired; so, in this case, if you believe from the evidence that the emergency

excitement, and be prepared for them, was not created by or contributed to

and losing one's head must be reby plaintiff's own negligence, and that

garded as a weakness in plaintiff, and the plaintiff, just before he was

not chargeable to defendant," and that, struck by the defendant's automobile,

since the plaintiff by the exercise of might have acted differently and es

ordinary care and skill might have caped the injury, if you also believe avoided the accident, the only concluthat the plaintiff was using ordinary sion in law is that the defendant is care in seeking to avoid a collision, not liable, and while so doing he was struck by And see McPhee v. Lavin (1920) defendant's automobile, then it is 183 Cal. 264, 191 Pac. 23, and Kearney your duty to find for the plaintiff in v. Castellotti (1921) 55 Cal. App. 541, such amount as may be justified by 203 Pac. 1029, as set out supra, IV. the evidence."

G. J. C.



COUNTY OF KING et al., Appts.

Washington Supreme Court (Dept. No. 2) - November 9, 1922.

(122 Wash. 225, 210 Pac. 378.)

Estoppel — to question payment of tax.

1. A county whose officer, upon receipt of a check in payment of a tax upon certain property, marks the tax paid, and issues a proper receipt, is estopped from asserting the nonpayment of the tax when the check is dishonored, as against one who purchases and pays for the property in reliance on the receipt.

[See note on this question beginning on page 1213.) Tax payment by check effect. County — collecting taxes — capacity

2. A check given in payment of of action. taxes does not operate to discharge 3. A county acting through its the tax unless the check is in fact treasurer in collecting taxes acts in paid.

a governmental, and not in a proprie[See 26 R. C. L. 376; 4 R. C. L. Supp. tary, capacity. 1663.]


(122 Wash. 225, 210 Pac. 378.) APPEAL by the County et al., from an order of the Superior Court for King County (Steele, J.) overruling their demurrer to the amended and cross complaints filed to restrain them from asserting nonpayment of certain taxes and to quiet complainant Seward's title to the property as though the tax had been paid. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Malcolm Douglas, Howard Owens, 53 Wash. 483, 132 Am. St. Rep. A. Hanson, and Arthur Schramm, Jr., 1087, 102 Pac. 425, 17 Ann. Cas. 819; for appellants:

Blinn v. Grindle, 58 Wash. 679, 109 The county treasurer has no right Pac. 122; Puget Sound Nat. Bank vi or authority to accept in payment of Biswanger, 59 Wash. 134, 109 Pac. taxes anything other than money, and 327; Loving v. Maltbie, 64 Wash. 336, when he does so he cannot bind the 116 Pac. 1086. public thereby

Main, J., delivered the opinion of 26 R. C. L. 376; 37 Cyc. 1164; Cool

the court: ey, Taxn. 3d ed. p. 804; Barnard v. Mercer, 54 Kan. 630, 39 Pac. 182;

This action, as originally instiHoughton v. Boston, 159 Mass. 138,

tuted, was one to recover a money 34 N. E. 93; Moore v. Auditor Gen. judgment against Archibald J. Fis122 Mich. 599, 81 N. W. 561; Koones ken, who was the only defendant v. District of Columbia, 4 Mackey, 339, named in the complaint. When 54 Am. Rep. 278; Kahl v. Love, 37 N. Fisken answered, he filed a cross J. L. 5; Kuhl v. Jersey City, 23 N. J.

complaint and caused the county of Eq. 84; Philadelphia Mortg. & T. Co.

King and its treasurer to be made v. Omaha, 63 Neb. 280, 57 L.R.A. 150, 93 Am. St. Rep. 442, 88 N. W. 523; Mc

parties. By the cross complaint it Lanahan v. Syracuse, 18 Hun, 259;

was sought to restrain the county People v. Brown, 67 ill. 435; Rossire and the treasurer from asserting v. Boston, 4 Allen, 57.

that the taxes upon specified real To permit the plea of estoppel to property for a certain year had not prevail would wholly deprive the pub- been paid. After the cross comlic of the safeguards which the law plaint was filed, the original comintended for their protection.

plaint, by stipulation, was amended State ex rel. Spring Water Co. v.

to ask for the same relief as that Monroe, 40 Wash. 545, 82 Pac. 888; State v. Pullman, 23 Wash. 583, 83

sought in the cross complaint. The Am. St. Rep. 836, 63 Pac. 265; Smith

county and its treasurer demurred v. Seattle School Dist. 112 Wash. 64, to the cross complaint, which de191 Pac. 858.

murrer was overruled. They elected Messrs. Elias A. Wright and Sam A. to stand upon the demurrer, and Wright, for respondent Seward:

judgment was entered as prayed A municipal corporation may be es- for. From this judgment the countopped by an action of its proper of

ty and its treasurer appeal. The ficers having lawful power to act. Curnen v. New York, 79 N. Y. 511;

facts are not in dispute, and will be

here sufficiently set forth to present Chicago v. Sexton, 115 Ill. 230, 2 N. E. 263; Luse v. Rankin, 57 Neb. 632,

the controlling question. 78 N. W. 258; Reading v. Krause, 167 In June, 1919, the respondent Pa. 23, 31 Atl. 366; 2 Herman, Estop- Fisken, as agent for the Mortgage pel, $ 1222.

Bond Company of New York, proThe question of estoppel may be cured from this company for repleaded against a county.

spondent Mae Seward a loan of $3,Franklin County v. Carstens, 68 000 to be secured by mortgage upon Wash. 176, 122 Pac. 999. The mistake of a county treasurer

lots 10 and 11, block 1, of Dens

more's Summit addition to the city cannot be used against an innocent

of Seattle. When Mrs. Seward apparty or property owner attempting to pay taxes.

plied for this loan, she did not own Bullock v. Wallace, 47 Wash. 690, 92

this property, but was about to purPac. 675; Loving v. McPhail, 48 Wash.

chase it from Albert A. Rutledge 113, 92 Pac. 944; Taylor v. Debritz, and wife, to whom the Mortgage 48 Wash. 373, 93 Pac. 528; Gleason v. Bond Company of New York had previously made a loan of $2,500, this is not a controversy as to the secured by a mortgage upon the person paying the taxes to the counsame property. In addition to the ty, but is one as to an innocent third Rutledge mortgage, there were out- person, Mrs. Seward, who purchased standing at the time general taxes the property and paid over a portion for the last half of the year 1917 and of the purchase price sufficient to all of the year 1918. In consummat- pay the tax, in reliance upon a reing the transaction, a deed was ceipt exhibited to her agent, which taken by Mrs. Seward from the Rut- had been issued by the county treasledges and a mortgage given by her urer, showing that the taxes had to the Mortgage Bond Company of been paid. The act of the county New York for the sum of $3,000; treasurer in issuing the receipt was she instructing Fisken to apply the not one where power was entirely proceeds of the loan, $2,407.54, to lacking, but was the exercise of an the extinguishment of the Rutledge existing power in a defective or irmortgage, and the balance of $592.46 regular manner. Under this statupon the purchase price to the Rut- ute, Rem. Code, § 9221, the county ledges, the latter not to be paid until treasurer, upon the payment of any Fisken was satisfied that the taxes tax, is required to give a receipt had been paid. One Mark Munson therefor and enter the same upon acted for the Rutledges in the trans- the tax roll. The general rule action. Fisken paid the Rutledge that a check given in payment of mortgage as instructed, and when taxes does not opMunson exhibited to him a receipt erate to discharge by check-effect.

Taxfrom the county treasurer showing the tax unless the that the taxes had been paid, the check be in fact paid. The county, $592.46 was paid over to him. Mun- acting through its treasurer in colson had given his check to the coun- lecting taxes, acts in

a governmental, and ing taxes

County-collect.. ty treasurer in payment of the taxes at the time the receipt was issued. not in a proprietary, capacity of When the check was presented, pay- capacity. The quesment was refused for want of suffi- tion, then, is reduced to this: Will cient funds. At the time the check the county be estopped from assertwas accepted by the county treas- ing that a tax has been paid as urer, he made a notation upon the against a complaining party who has tax rolls that the taxes had been purchased the property covered by paid, and this notation remained the tax and paid over the purchase thereon for a period of approximate- money, or a portion of it, to the ly thirty days, when it was can- seller in reliance upon a receipt exceled. Thereafter, Mrs. Seward

Mrs. Seward hibited, signed by the county treasbrought this action against Fisken urer, showing that the taxes have to recover the amount of these taxes,

been paid? and, as above stated, when he an- Upon this question there is a swered and filed a cross complaint, dearth of authority. So far as we the cause was resolved in effect to are advised, it has been before the one by Mrs. Seward and Fisken courts upon only two or three ocagainst the county and its treas- casions, and is little discussed by the urer, seeking to restrain them from text-writers. In Curnen v. New asserting that the taxes had not been York, 79 N. Y. 511, the action was paid and quieting the title of Mrs. to compel the defendant to discharge Seward to the property above de- a lot in the city of New York belongscribed as though the taxes had in ing to the plaintiff from the lien of fact been paid.

certain assessments. It appeared A few preliminary statements that, before the plaintiff paid the will tend to simplify the discussion purchase price, she ascertained at upon the controlling question in the the proper office from the official case. It must be remembered that records that the assessments had

ment of tax.

(122 Wash. 22), 210 Pac. 378.) been paid. Plaintiff thereupon, aft- are enforced now, it will be to her er deducting certain assessments prejudice."

” which appeared as paid upon the It is sought to distinguish that records, paid the balance of the pur- case, because there the taxes were chase price for the property. The paid, not by check, but in money. assessments were in fact paid at the This is true, but the money was paid time stated by a person not owning over under a mistake of fact. A the property, through a mistake. third person who innocently deals This party, after discovering his with the property is in exactly the mistake, brought an action and re- same position whether the taxes or covered the amount of money thus assessments in question have been paid. The plaintiff, or the pur- paid by money or by the giving of a chaser of the property, who had re- check, when in one case the money lied upon the records, was not a is paid under a mistake of fact, and party to that action. After the per- in the other the check is returned son paying the taxes had prevailed not paid. The record in both cases in the action brought by him, the showing that the taxes had been entry of payment was canceled. paid, the effect is the same. But Thereafter, the plaintiff, who was even if there is the distinction bethe purchaser, brought action to re- tween that case and this which is strain the defendant from asserting sought to be made,

Estoppel-to as against her that the taxes had not the argument and question paybeen paid; and it was there held that discussion in that she was entitled to the relief sought, case and the holding sustain the since being a bona fide purchaser of position that the doctrine of estopthe property, and, in making the pel will apply. In the later case of purchase, relying upon the records O'Leary v. Board of Education, 93 showing that the assessments had N. Y. 1, 45 Am. Rep. 156, it was been paid, the defendant would be said: “A fact once admitted by a estopped from asserting that they corporation through its officer duly had not been paid. It was there and properly acting within the scope said: “The record is for the public; of his authority is evidence against with the book no one but its owner

it, and cannot be withdrawn to the has concern, and of itself, it avails prejudice of anyone who in reliance nothing; there is, therefore, no anal- upon it has changed his situation in ogy in the modes of treatment to respect to the matter affected therewhich they may be subjected. The

by. In such a case the doctrine of assessment roli is akin to a judg- estoppel applies to a corporation as ment; both records, and each creat

well as to an individual,"-citing

the Curnen Case. ing a lien to be enforced by subse

In the case of Kuhl v. Jersey City, quent proceedings, if the debt or

23 N. J. Eq. 84, the plaintiff had duty is not otherwise discharged. New York v. Colgate, 12 N. Y. 140: purchased certain land, and at the


time of the purchase had procured If the latter is erroneously dis

a certificate from the city tax colcharged, its lien cannot be restored

lector showing the amount of the so as to affect bona fide purchasers, taxes and assessments in arrear or others standing in a similar rela

against the property. On the day tion, whose transactions were en- when the deed was delivered and the tered into in ignorance of the error, consideration paid, the seller of the and in reliance upon the truth of property went to the office of the city the record. King v. Harris, 34 N. .

collector of taxes and paid the same Y. 330. The same rule applies here. by giving a check, which the collecThere can be no doubt that the tor received and thereupon receipted plaintiff was led by the entry upon the tax bills. The tax receipts were the roll to believe that the assess- presented to the plaintiff, the purments had been paid, and, if they chaser of the property, and in re

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