Department 1. Appeal from Suit by Stephen E. Chaffee, trustee for C. A. Jones and others, against Luther Hawkins and others, wherein John H. Lynch intervenes. From decree for defendants, plaintiff appeals. Reversed and remanded, with directions. Superior fore had by them with him, did not read over the said notes, and did not observe that there was with the same any document purporting to be a mortgage, or any document other than a note, and appended their signature to the various pa pers as they were presented to them for that purpose; that after so doing they immediately left the office without either acknowledging, or intending to acknowledge, the execution of any mortgage, and never knew that they had signed a mortgage until the commencement of this action;" "that the defendants are illiterate colored people and, although able to write and read to some extent, yet they are slow of intellect, thought, and speech, and it is difficult for them to comprehend business affairs of the nature involved in this suit." Stephen E. Chaffee, of Sunnyside, for appellant. Lynch & Chesterley and John H. Lynch, all of North Yakima, for respondents. CHADWICK, J. Prior to October 22, 1913, defendants Luther Hawkins and Jennie Hawkins, his wife, were indebted to several persous upon certain promissory notes in the sum of $80.10 each, and to another in the sum of $274 upon a judgment theretofore rendered, in all aggregating the sum of $755.60. Appellant is an attorney at law and had, prior to that time, begun a suit against the defendants Hawkins to recover the sums due upon the promissory notes. In consideration of a dismissal of the suit and the satisfaction of the judgment that had theretofore been entered against them, the defendants Hawkins made a new note, and a mortgage upon a 40-acre tract of land, the legal title to which was then in them. On February 1, 1913, the defendants Hawkins had employed the intervener Lynch to defend an action involving their land, and had given a mortgage-in form a quitclaim deed-in the sum of $2,000 to secure his attorney's fees and the expenses of the suit. In January, 1914, defendants Hawkins made, executed, and delivered their deed of warranty conveying the mortgaged premises to defendants Chesterly The court further found that defendants Chesterly took their deed without actual knowledge of the existence of the appellant's mortgage; that they were not bound thereby, and had taken title to the land subject only to the lien of intervener's mortgage. The court accordingly held that appellant have judgment against defendant Hawkins for the full amount claimed and $125 attor ney's fees; that the mortgage given to se. cure him as trustee was null and void; that the Lynch mortgage was a prior lien for $2,000, less the sum of $294, which had been paid thereon; and that title to the land was in the defendants Chesterley. Appellant's mortgage is in proper form, and was seasonably recorded. It purports to be acknowledged before H. L. Miller who was the cashier of the bank at Sunnyside, and is attested with his seal. The instrument and its acknowledgment is sustained by the testimony of the appellant and by the notary. The testimony of the defendants Hawkins is to the effect that they did not agree to and did not intend to sign a mortgage; that if they did so, the mortgage was given in ignorance of the fact that it was a mortgage. We have not overlooked the answer of the "subject, however, to all liens, incumbrances and taxes which are a valid and subsisting charge upon said premises, and subject to a quitclaim husband defendant that the signature was deed intended as a mortgage executed by Luther not his signature, but the whole of his testiHawkins in favor of John H. Lynch recorded mony makes it plain-and it is not seriously in volume 133 of deeds at page 634, deed records contended that it is not so-that he intended in the office of the auditor of Yakima county, to say no more than that it was not a binding Washington, which said grantee hereby assumes and agrees to pay as a part of the purchase signature. price above mentioned." Thereafter appellant, acting as trustee for his clients, began this action to foreclose the lien of his mortgage. Mr. Lynch intervened, and from the complaint, the petition and answer in intervention, and the answer of the defendants, the issue whether appellant's mortgage was in fact executed is drawn. The court below found that the claims represented by appellant were valid claims at the time they were executed; that at no time, either before or at the time the mortgage purports to be executed did the defendants Hawkins, or either of them, promise or agree to execute any mortgage or expect or intend to do so, and that: [1] A collateral issue was developed on the trial. It became uncertain whether the instrument was acknowledged in the office of the appellant or at the bank. Much is made of this uncertainty by counsel, but in the light of the whole record and the established principle that a deed fair upon its face, signed by the grantors and duly acknowledged, imports verity which courts will not lightly disregard constrains us to hold that the place the deed was acknowledged is not very material. [2] Appellant contends that one who has signed a deed will not be heard to question it or to challenge the certificate of the notary who has taken and certified to his acknowl"As soon as the notes and said mortgage were edgment. There is abundant authority to prepared, they were placed before the defend- sustain this premise but we think the better ants Hawkins for signature and the said Haw- doctrine is that a grantor may impeach such kins and wife, relying upon Mr. Chaffee to prepare notes for their signature in accordance certificate for fraud or other reasons, finding with the understanding and agreement thereto- sustenance in any of the recognized princi ples of equity. We think the true rule is as stated in Western Loan & Savings Co. v. Waisman, 32 Wash. 644, 73 Pac. 703, where the court said: "That the evidence required to overcome a certificate of acknowledgment must be clear and convincing is generally held, and it may well be said that where fraud or duress is not shown as a circumstance attending an acknowledgment, the unsupported testimony of parties directly interested in the impeachment is not of that clear and convincing character that is necessary to overcome a record and an official act." The doctrine is sustained in Drew v. Bouffleur, 69 Wash. 610, 125 Pac. 947, and State v. Hatfield, 65 Wash. 550, 118 Pac. 735, Ann. Cas. 1913B, 895. See, also, 1 R. C. L. p. 294, as follows: "Impeachability for Fraud, Accident, or Mistake. It is a maxim of the law that fraud vitiates all things, and certificates of acknowledgment are no exception to the rule. The other grounds upon which written instruments generally are open to attack may also be made the basis for the impeachment of certificates by the introduction of parol_evidence. Many courts, reasoning that the officer taking an acknowledgment acts judicially, have asserted that if a certificate is regular on its face, parol evidence may not be received to contradict it in the absence of an allegation of fraud, mistake, collusion, imposition, or the like. According to this view, certificates are not entitled to the precise degree of credit that is given to judgments of courts of record; but they are held to be entitled to much of the weight and authority of records, and to be subject with some modifications to the same general principles of construction and intendment which apply to other matters of the same class." All the books agree, however, that the evidence offered to impeach an acknowledgment regular in form must be clear, cogent, and convincing. 1 Cyc. at page 623, lays down the rule: "Where a certificate of acknowledgment is regular on its face, a strong presumption exists in favor of its truth. * * The proof to overthrow a certificate regular on its face must be so clear, strong, and convincing as to exclude every reasonable doubt as to the falsity of the certificate." [3] In the case at bar, while it is true that the defendants Hawkins deny the mortgage, their testimony is not supported by any other witness, nor do there seem to be any equities which can be said to sustain their contention. On the other hand, their testimony is denied by all who were present, and is challenged by all the concomitant facts and circumstances. A pending action was dismissed; a juugment was satisfied which operated to release the property from the judgment lien. The mortgage was recorded and became a matter of constructive notice to the purported makers, and it may be fairly inferred from the record, a matter of notice to their attorney, the present intervener, and the defendants Chesterley. [4, 5] The only question now necessary for us to decide is whether appellant is entitled to a deficiency judgment against defendants Chesterley. The law is that a deed taken subject to prior liens does not bind the grantee to pay, unless it is stated in the instrument or is shown by independent evidence that it was taken in fact subject to the payment of the existing incumbrance, or that the existing incumbrance was a part of the purchase price. It seems clear to us that the assumption clause in the Chesterley deed did not bind the vendees to pay or make them personally liable for any lien or incumbrance other than the mortgage owned by the intervener. The deed was made subject to liens generally, and subject to a particular lien which is described and which the grantee assumed to pay. Or if the language be doubtful, appellant is in no better position. A vendee is bound under such covenants only when it is clear that it was his intention to assume and pay a lien or incumbrance. Jones on Mortgages, § 748, and citations. 27 Cyc. p. 1343. From this it follows that if it be doubtful, the doubt will be resolved in favor of the vendee, and a recovery against him will be denied. The court below held jurisdiction of the case until the case of Union Central Life Insurance Co. v. Hawkins, 84 Wash. 605, 147 Pac. 199, should be finally decided in this court in order to determine whether the intervener was entitled to the full amount of his mortgage, less the sum paid. That case being disposed of favorably to the intervener's clients, he is entitled to a foreclosure of his lien. The case is reversed and remanded, with directions to enter a decree that will protect the lien of appellant and the lien of the intervener in the order of their priority. MORRIS, C. J., and MOUNT, ELLIS, and FULLERTON, JJ., concur. WELCH et ux. v. PETLEY et al. (No. 12889.) (Supreme Court of Washington. Jan. 11, 1916.) 1. MUNICIPAL CORPORATIONS 821-STREET IMPROVEMENT- PERSONAL INJURY - NEGLIGENCE SUBMISSION TO JURY. Where, in an action against a contractor and a city for personal injuries from a defective sidewalk, it appeared that the contractor was grading the street under a contract therefor with the city and occupied a portion of the street for that purpose near the point of injury barricaded the street but not the sidewalk, with machinery and a coal pile; that he had which was left open for the public, and on the night of the accident he had hung red lanterns no lights or warning signals at a point where on the machinery and coal pile, but had placed he had that day torn up the sidewalk, which was We conclude that the defendants and the part of his work, and plaintiff, knowing that the intervener have not sustained the issue ten-grading was being done, but not knowing that the sidewalk was torn up at that point, was dered by them by evidence that is strong, caused to fall by such condition of the sidewalk, convincing. and cogent. the place being dimly lighted by distant street For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lights. The case was properly submitted to the jury on the question of the sufficiency of the barriers and warnings with regard to persons using the sidewalk and on the question of plaintiff's negligence. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1757; Dec. Dig. 821.] 2. APPEAL AND ERROR 977-MOTION FOR NEW TRIAL-OVERRULING-DISCRETION. Where, in an action for personal injuries, the court below overruled defendant's motion for new trial for developments in plaintiff's condition subsequent to the rendition of a judgment in her favor, such ruling will not be interfered with on appeal, in the absence of a clear abuse of discretion. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. 977.] but left lying flat on the ground at the time mentioned, from the donkey engine south for some distance. The contractor removed one of the planks from the narrow sidewalk on the easterly side of Thirty-Seventh avenue south, at the point about 90 feet south from Hudson street where it was about 20 inches from the ground, and left no barrier or light or other warning to guard that place, and at that place, after night or on the night in question, it was very dark. At about 10:30 in the night of June 20th, Mrs. Welch left the southwest corner of the intersection of Hudson street and ThirtySeventh avenue south, walking very rapidly, or almost running, diagonally across Thirty-Seventh avenue south, to the easterly Department 2. Appeal from Superior side of the street, reaching the line of the Court, King County; King Dykeman, Judge. sidewalk on that side a little distance north Action by Albert Welch and Ruby Welch, of the place where the plank had been rehis wife, against B. H. Petley and others, to moved, walked to that place, and not knowrecover for personal injuries. Judgment for ing previously and not being able to see at plaintiffs, and defendants appeal. Affirmed. the time that the plank had been removed, E. P. Whiting, Jas. E. Bradford, and F.stepped down, fell, and sustained severe inM. Egan, all of Seattle, for appellants. juries. A part of the contractor's work was Green & Chester, of Seattle, for respondents. to remove the plank sidewalk and grade and improve the street its entire width. Mrs. Welch had been familiar with the street and HOLCOMB, J. Eighteen errors are assigned by the appellants, but they are argued the sidewalk in this locality about three under three general propositions: (1) Wheth-years, but had not been along there that day, er or not appellants were guilty of negli- and was unaware of the removal of a part gence; (2) whether or not respondent Ruby Welch was guilty of contributory negligence; and (3) whether the court erred in giving and in refusing certain instructions. [1] On and prior to June 20, 1914, ThirtySeventh avenue south in Seattle was a public street, with a plank sidewalk along the easterly side thereof for some distance south of Hudson street, consisting of two rows of wide planks laid parallel side by side, and which had been used by respondents and pedestrians generally for a long time. At a point about 90 feet south of the south line of Hudson street the plank sidewalk was elevated about 20 inches from the ground. The city had let a contract to Petley for the grading of Thirty-Seventh avenue south, and on June 17, 1914, the contractor had taken possession of the street under his contract and, at the intersection of the street with Hudson street just south of the south line thereof, he had placed a platform on skids, 9 feet 9 inches wide and 35 or 40 feet long, on which was mounted a donkey engine and boilers. Just north of the south line of Hudson street and its intersection with Thirty-Seventh avenue south, a car of coal was placed on a track, and a large pile of coal was unloaded therefrom on the ground close to the platform and extending across the center of the street, leaving space sufficient at each end of the pile for the sidewalk and for teams to pass between the sidewalks and the coal pile up and down Thirty-Seventh avenue south. There were cables extended, of the walk. There was an arc light at the southeast corner of the street intersection mentioned, extending on an arm from a wire pole. There were incandescent lights further south on Thirty-Seventh avenue, but none very near the place where the accident occurred. There was a conflict in the testimony as to what red lights were put up at It seems well esthe street intersection. tablished that there was one red light on the coal pile and one on the donkey engine. Respondents and other witnesses in their behalf testified that there was no warning red light at the entrance to the walk going south from Hudson street on Thirty-Seventh avenue, no board nailed up, nor any sign, signal, or warning to indicate that the walk was not to be used by the public. There was no barrier or sign of any kind at the south end of the block to indicate that the street was closed to travel. 1. Appellants rely upon the decisions in Hunter v. Montesano, 60 Wash. 489, 111 Pac. 571, Ann. Cas. 1912B, 955, Jones v. Collins, 177 Mass. 444, 59 N. E. 64, and Compton v. Town of Revere, 179 Mass. 413, 60 N. E. 931, to the points that obstructions so placed, and of such nature as to be calculated to give ample notice to the public that the street was in process of construction and not open for travel, thereby suspended the legal liability for not keeping the street in a safe condition for travel; and that a person so traveling such street assumes the hazard incident thereto. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes These contentions are sound, but do the facts here come within them? In the Hunter Case the street had been in process of construction for two or three months, of which plaintiff was well aware, being employed in the daytime in a livery stable situate thereon; the accident occurred upon a dark, windy, rainy night; he knew that the street was all torn up at the place where he attempted to travel; he knew that there was a barrier extending from curbing to curbing at each end of the block on Main street which was being paved; he saw the barriers and knew the condition of the street. Assuredly, as was said by the court, per Gose, J., "he was guilty of the grossest negligence." In the case it was further pointed out that "Main street outside the sidewalk area was properly barricaded." Plaintiff in that case was not traveling upon the sidewalk area, but in the main portion of the street. In Jones v. Collins, supra, it was stated by the court there were barriers across each end of the street that was being improved, and across the ends of each street leading into it, and had been up for many days previous to the accident, and "were so placed, and so numerous, and of such a nature as to be well calculated to give ample notice to the public that the street was in process of construction, and was not open for travel." In the Compton Case it was pointed out that: "This is not the case of a person entering upon a street in the nighttime, which he has no reason to suppose defective, but of a person entering a street in the daytime, the grade of which he knows is being changed, and which he also knows is not graded or fit for public travel." Again: "It is obvious that the plaintiff knew all that there was to know about the condition of things, and, in attempting to use the street, did it at his peril." These cases, therefore, all differ from the facts in the case now under consideration. From them and many others in this and other states, as was said in the Hunter Case: "The principle which may be deduced is that a city is not required to so barricade a street as to preclude injury. It discharges the full measure of its duty when it gives a plain warning that there is danger in traveling a street." * * * ** * lant fell, with the knowledge and approval of the city. Was the appellant exercising reastances? The jury, upon competent testimony, sonable care in view of all the attending circumresolved this question in her favor. Where the public use a street upon the invitation of the city, either express or clearly implied, the duty devolves upon the city to use reasonable care to keep it in a reasonably safe condition for travel. * A traveler is not required to avoid a particular street because there is another and safer one that he may take. He has a right to travel upon any street which the city leaves open for travel. * * Where a city undertakes to improve a street, it is required to use reasonable precautions to guard the public from injury, and in doing so may, if necessary, temporarily close the street to public travel. * * It was incumbent upon the city to provide signals or warnings if the walk was in common use and dangerous, and it knew, or in the exercise of reasonable care ought to have known, its condition." Judgment in favor of plaintiff on the verdict was ordered. The case does not depart from the Hunter Case, but is clearly distinguishable therefrom and from the other cases cited and relied upon. that other persons were using the street, and In the present case the evidence showed that a man and his wife traversed the same sidewalk area immediately after Mrs. Welch, and in fact discovered her in the depression into which she fell. It was a proper case to go to the jury upon the questions of the sufficiency of the barriers and other warnings to notify the public of the suspension of travel upon the sidewalk area, and also upon the question of the negligence of Mrs. Welch. 2. It was upon the foregoing theory that the court instructed the jury, and of which There was no error, appellants complain. therefore, in the giving and refusing of instructions by the court. [2] 3. As to alleged subsequent developments as to the condition of Mrs. Welch, shown on motion for new trial, the court passed upon them as matters of fact, exercised his judicial discretion, and denied the motion. It has so frequently been held in this state that in such case, unless there is a clear and manifest abuse of discretion by the trial court, this court cannot and will not interfere, that no citation of cases is necessary. Judgment affirmed. MORRIS, C. J., and MAIN, PARKER, and BAUSMAN, JJ., concur. COOK v. STORY. (No. 12849.) (Supreme Court of Washington. Jan. 7, 1916.) 1. SALES 23-EXPRESS CONTRACT-RIGHT But a street is often closed to travel as to its main body, or to teams and vehicles, and not as to its sidewalks or to pedestrians. The case of Lautenschlager v. Seattle, 77 Wash. 12, 137 Pac. 323 (also written by Judge Gose), is more controlling here. Plaintiff recovered against both the city and the contractor. On motion of the city, judgment n. o. v. was granted in its favor. It was said: "We think the court erred in entering a judg- OF ACTION. ment non obstante in favor of the city. Whether the appellant was guilty of contributory neg-sories and act as the seller's agent in a certain ligence is a question of mixed law and fact. There is abundant evidence in the record which justified the jury in finding that the public were traveling the two-plank way, where the appel Where a tentative contract to buy accesterritory was rejected by the seller and a new contract sent to the buyer, which he rejected, the seller could not sue on the original tentative contract, as an express contract, for the price of accessories shipped to the buyer but | defendant and was admitted by Sahland himnot accepted by him. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 44-48; Dec. Dig. 23.] 2. SALES 23-Order on FAITH OF TENTATIVE CONTRACT-OBLIGATION OF BUYER. Where the buyer ordered accessories on faith of a tentative contract made by him with the seller's agent and repudiated by the seller, and a new contract sent, which the buyer rejected, he was under no obligation to accept the accessories ordered. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 44-48; Dec. Dig. 23.] Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford, Judge. Action by M. H. Cook against E. H. Story. From judgment for plaintiff, defendant appeals. Reversed and remanded, with direc tion to dismiss. G. C. Israel, of Seattle, and H. B. Noland, of Tacoma, for appellant. Hayden, Langhorne & Metzger, of Tacoma, and McClure & McClure, of Seattle, for respondent. ELLIS, J. Action for the purchase price of certain automobile tires and tubes, which it is alleged were sold and delivered to the defendant by plaintiff's assignor under a written contract. The plaintiff's assignor, W. D. Newerf, doing business as W. D. Newerf Rubber Company, in San Francisco and Los Angeles, was the Pacific coast agent for the Miller Rubber Company, a corporation operating a tire factory at Akron, Ohio. One C. W. Sahland, a traveling salesman for the Newerf Company, met the defendant, Story, in Seattle on May 28, 1913, and with him arranged the details of a contract appointing Story as general agent and distributor for the Newerf Company in the sale of Miller tires, tubes, and accessories, the agency to cover the states of Washington, Idaho, and Montana. Shortly after this conference the parties went to Tacoma and at the office of Hugo Metzler, an attorney and secretary of the Auto Equipment Company, through which the defendant expected to supply the demand for Miller tires in that city, the defendant for himself, and Sahland for the Newerf Company, signed a tentative contract covering the three states for one year, subject to termination by either party on 90 days' notice. By this tentative contract the defendant was to maintain at his own expense an office and showroom in Seattle, carry a stock sufficient to meet the requirements of customers, and advertise the goods. The Newerf Company was to extend certain credit, furnish goods to the defendant at certain scheduled prices, allow certain trade and cash discounts, and make replacements of guaranteed tires on given terms. This agreement was signed in duplicate with the understanding that it was to be submitted to the Newerf Company for approval. Sahland throughout represented that he had no authority to finally approve the contract. This was testified to by the On self. A blank for such approval appears at "San Francisco, Cal., July 9, 1913. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Your |