nished by us, when a further 5 per cent. for cash will be allowed. Yours very truly, [Signed] W. D. Newerf Rubber Co., per J. E. Newerf.' He testified: "On the 9th of July they gave me this letter of credit. I returned to Sacramento, then came here and went into the Auto Equipment. Mr. Lindquist and Mr. Metzler told me there was a shipment down there for Auto Equipment. It was about the 17th or 18th of July that the goods were delivered to us. Newerf had told me it was on the road and would be delivered to us on the letter of credit which I had at the time. They told me that when I was in San Francisco, and said the Story deal was off." He also testified that before returning to Tacoma he went to Akron, Ohio, to arrange an agency for the Miller tires, and there met W. D. Newerf, who told him the same thing. Sahland, who was present at that interview, denied this, but admitted that De Land was then told that "the deal with Story was entirely canceled" and the Newerf and Miller Companies were at liberty to give the Washington agency to the Auto Equipment Company. There and different contract was sent to him. He rival of the goods, having repudiated the When the goods arrived in Tacoma the railroad company, for some reason not explained, notified Story of that fact, but he refused to accept them and refused to authorize their delivery to the Auto Equipment Company, stating in effect that he would have nothing to do with the matter. The contract upon the faith of which they were chief clerk of the freight agent of the rail-ordered, the appellant was under no obligaroad company at Tacoma testified that on Story's refusal to accept the goods he sent a telegram to the agent of the B. & O. Railroad at Akron, Ohio, but was not permitted to state the contents of that telegram or what reply he received. At any rate the goods were delivered to the Auto Equipment Com- forwarded to the appellant for execution was pany on July 17th. That company, as it a "consignment contract" and not a selling now appears, was then in failing circum-contract, the inference being that it was not stances and went into the hands of a receiv- intended to take the place of the original er soon afterwards. The court found, in substance, that the goods were sold and delivered to the defendant under the terms of the written contract, and that there was a balance of $1,399.02 due thereon, for which amount, with interest at 6 per cent. from August 30, 1913, judgment was entered. The defendant ap peals. [1] The appellant contends that no express contract was ever consummated, and hence the action being on an express contract cannot be maintained. Under the evidence we are clear that the execution of the written contract sued upon was never consummated. The tentative agreement was signed with the understanding that it would have to be submitted to the Newerf Company for approval. It was never approved, but was expressly repudiated by Newerf. A new tion to accept them. He was under no obligation to thus lay himself open to the claim now advanced as to the old contract, that he had ratified the new one by continuing to receive goods. The respondent asserts that the contract agreement. This seems to be based upon a misconception of the record. It is true there had been some negotiations looking to a contract for taking goods on consignment, but the contract sent was by its terms a selling contract and bore a memorandum that it was "intended to take the place of the 28th.". That such was its purpose Sahland one signed and handed to Sahland May himself testified. A letter in evidence from Newerf to Story so indicates. The respondent did not sue on a quantum valebat, nor was there any evidence directed to that issue. He sued upon an express contract, which he failed to prove. The judgment is reversed and the cause is remanded, with direction to dismiss. MORRIS, C. J., and CHADWICK, FULLERTON, and MOUNT, JJ., concur. spondent. O. C. Moore, of Spokane, for appellant. AlSMITH SAND & GRAVEL CO. v. CORBIN. len, Winston & Allen, of Spokane, for re(No. 12773.) (Supreme Court of Washington. Jan. 4, 1916.) 1. APPEAL AND ERROR 1097-DETERMINATION-LAW OF CASE. A decision by the court on a former appeal constitutes the law of the case. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4427; Dec. Dig. 1097.] 2. APPEAL AND ERROR 840 QUESTIONS PRESENTED FOR REVIEW - DETERMINATION. Rem. & Bal. Code, § 399, subd. 8, declares that a new trial may be granted for error in law occurring at the trial and excepted to. At a former trial defendant excepted to evidence addressed to a count of the complaint which did not state a cause of action. Held that, on appeal from an order granting defendant a new trial, the appellate court was bound to determine whether the complaint stated a cause of action in order to correctly decide the question of the admissibility of the evidence; hence that its determination on that matter became the law of the case. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3301, 3303, 3314; Dec. Dig. ~~840.] 3. APPEAL AND ERROR TION CHANGE. 171-THEORY OF AC Counsel cannot assert on appeal inconsistent theories concerning a cause of action set out in his complaint. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1063, 1066, 1067, 1161-1165; Dec. Dig. 171.] 4. EVIDENCE 445 PAROL EVIDENCE WRITTEN CONTRACT-TIME OF PERFORMANCE. Where a written contract for the excavation of rock fixed no time for the completion of the work, and therefore impliedly required completion within a reasonable time, the contract could not be varied by a contemporaneous or subsequent parol agreement that plaintiff should only be required to excavate the rock as it could crush and sell it at a profit. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. 445.] 5. APPEAL AND ERROR 768-DETERMINA TION. The Supreme Court is not bound to consider only the questions presented in the briefs of the parties, but may make an independent investigation. 768.] [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3103; Dec. Dig. 6. PLEADING 248-AMENDMENT-SCOPE. In an action for breach of a contract for the excavation of rock, where the original complaint averred that plaintiff was not bound to remove the rock faster than it could crush and sell the same with profit, an amendment setting up defendant's breach of the contract requiring payment of 90 per cent. of the monthly estimates of rocks removed states an entirely new cause of action, and, after the first complaint was held insufficient, should not be allowed. [Ed. Note.-For other cases, see Pleading, Cent. Dig. $$ 686, 687, 689-706, 7082, 709; Dec. Dig. 248.] Department 1. Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge. Action by the Smith Sand & Gravel Company against D. C. Corbin. From a judgment for defendant, plaintiff appeals. Af firmed. MOUNT, J. This case has been before this court on two former occasions. The first appeal was by the plaintiff from an order granting a new trial. The appeal was first heard by department 1 of this court, and the order affirmed. 75 Wash. C35, 135 Pac. 472. A rehearing was granted and the cause was. presented to the court en banc. The order granting a new trial was again affirmed, the entire court concurring. 81 Wash. 494, 142 Pac. 1163. In the en banc opinion, speaking of the trial court's ruling on the motion for a new trial, we said: "The court, in ruling orally upon the motion, gave three reasons for granting a new trial: That he had committed error in his instructions to the jury touching the burden of proof; (2) that he had erred in permitting any testimony to be introduced on the second cause of ac tion; (3) that, in any event, the verdict was against the evidence. The formal order, however, did not state the grounds. Even under our decision antedating this appeal, which was taken prior to the adoption of the rule to that effect, in Rochester v. Seattle, Renton & Southern R. Co., 75 Wash. 559, 135 Pac. 209, we are at liberty to examine the whole record, and, if it discloses any ground warranting the granting of a new trial, the order appealed from must be affirmed. Such an examination convinces us that the so-called second cause of action failed to state a cause of action. It pleaded an oral agreement, and sought to put upon this oral agreement contemporaneous with the written agreement a construction which would vary the terms and legal effect of the writing. It is a rule of universal application that a written contract complete in itself, or in so far as it is complete in itself, cannot be contradicted, explained, enlarged, varied, or controlled by extrinsic evidence of a different contemporaneous parol agreement." Smith Sand & Gravel Co. v. Corbin, 81 Wash. 494, 142 Pac. 1163. We then held that, because the court at the first trial had committed error in admitting any evidence under the second cause of action, a new trial was properly granted. For a synopsis of the pleadings and of the facts we refer to the two former opinions. On the transmission of the remittitur the defendant moved the trial court to strike from the amended complaint upon which the first trial was had the second and third causes of action. The motion was granted, and a judgment was entered dismissing the second and third causes of action. The plaintiff again appeals. There is grave doubt as to whether the order appealed from is appealable, but, inasmuch as it must be affirmed on the merits, we prefer so to dispose of it. [1, 2] The first claim of error is directed to the striking by the trial court of the second and third causes of action. The third cause of action was abandoned at the former trial. There was obviously no error in striking it. Counsel makes the surprising claim that the sufficiency of the second cause of action was not before the court on the hear-. ing en banc, and that therefore everything For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes said in the opinion save the final sentence affirming the order granting a new trial is obiter dictum. Several pages of his brief are devoted to the elementary rule that dictum is not decision. It is then argued that the sufficiency of the complaint was not before us because insufficiency of a complaint to state a cause of action is not made by statute a specific ground for the granting of a new trial. The statute (Rem. & Bal. Code, § 399, subd. 8) however, does provide that a new trial may be granted for "error in law occurring at the trial and excepted to at the time by the party making the application." It is self-evident that the admission of evidence addressed to a pleading which does not state a cause of action, over objection and exception taken, is error in law. We were therefore compelled to pass upon the sufficiency of the second count of the complaint in order to determine whether the trial court had committed error in law by admitting evidence under it. Demonstrably the determination of the insufficiency of the second cause of action was necessary to the conclusion that the new trial was properly granted. Our de cision that it did not state a cause of action, therefore, became thenceforth the law of the case and a sufficient warrant to the trial court to strike it from the complaint. [3, 4] Appellant now urges us to reconsider the question of the sufficiency of the second cause of action, insisting that all that was said in the opinion en banc was an inadvertence, and in conflict with the holding of this court in Interstate Engineering Co. v. Archer, 64 Wash. 629, 117 Pac. 470. We find no such conflict. In that case there was no formal written contract. The writing consisted of an order for structural iron and the letter acknowledging receipt of the order, stating the price, kind of material, manner of shipment, and terms of payment, but failing to state the quantity of material or the time when it was to be delivered. The defendant pleaded and was permitted to prove that the plaintiff agreed to ship the iron within a reasonable time, and not to exceed 30 days after the date of the contract. We said: "The letter upon its face does not purport to state the whole agreement. Where it appears that only a part of the contract is in writing, the part not in writing may be proved by parol, in so far as it is not inconsistent with the written portion. 17 Cyc. 746; Wigmore, Evidence, § 2430. It was proper, therefore, for the court to receive oral evidence as to the time when the materials were agreed to be delivered." The phrase which we have italicized in the above quotation states an essential qualification in every such case. It marks a plain and elementary distinction between the Interstate Engineering Case and the case before us. In the case here there was neither allegation nor offer of proof that any definite time was agreed upon as a reasonable time for the removal of the rock. The written be done, and at what price, but did not provide when it was to be completed. There being no allegation that any definite time was agreed upon, either orally or otherwise, it became an implied term of the contract that it must be done within a reasonable time. It follows that the only competent evidence as to time was evidence of what was a reasonable time to do the work of removing the rock, which was the only work contemplated in the written contract. Such evidence was admitted, and, we held, properly so. But the appellant, as its so-called second cause of action, pleaded an alleged oral agreement which would extend the time of performance beyond the legally implied reasonable time for the removal of all the rock to such time as it might find necessary to crush the rock, and sell it at a profit. As we said on the rehearing en banc: "Such an agreement would change the whole tenor of the written contract. It would extend the time of performance beyond the legally implied reasonable time for the removal of all the rock to such time as the appellant might find necessary to crush the rock and sell it at a profit. This would contradict and change the whole scope and meaning of the written contract touching a stipulation upon which the writing is clear and unambiguous. The written contract was not for a sale of rock, but for the removal of rock; hence no damages could be recovered for a loss of profits upon the rock without first showing that the respondent terminated the contract and re-entered before the expiration of a reasonable time for the removal of all the rock, not crushing and selling of all the rock at a profit. before the expiration of a reasonable time for These two things are so widely different that a contract for the one is wholly inconsistent with an agreement for the other." If in the Interstate Engineering Case the plaintiff had pleaded an oral agreement that it should have such time to furnish the iron as might be required to purchase it at such price as to make a profit on the written contract to furnish the iron to the defendant, proof of such a collateral agreement would have been plainly inadmissible. It would have changed the whole tenor of the written agreement to furnish the iron at a given price for a given purpose. It would have had no tendency to prove what was a reasonable time to furnish the iron. Furnishing the iron was the definite purpose covered by the writing. The distinction is just this: The rule that the failure to fix a definite time in the writing to do the definite thing provided in the writing to be done will admit parol proof of what is a reasonable time to do that definite thing does not authorize parol proof of what would be a reasonable time to do that thing and something else not mentioned nor implied in the writing. Counsel quotes with emphasis the following from the en banc opinion: * * "In the case before us the appellant, by its so-called second cause of action, did not merely seek to plead facts showing what was a reasonable time for the removal of all rock,* but sought to set up and substitute for such reasonable time an oral agreement that the ap quired to crush and dispose of the rock by the sale at a profit as the agreed time for the removal of the rock." complains that the arguments in support of it "were the exclusive products of the industry of the court." The point was raised He then says that this construction of the in respondent's opening brief on the first apsecond cause of action is not borne out by an peal, and was thereafter discussed in the inspection of the complaint, because "no- appellant's reply brief, and again in appelwhere in the complaint is it alleged that the lant's brief on rehearing en banc. Moreover, time for performance was to be extended for the trial court discussed the point in his the purpose of enabling appellant to find oral ruling on the motion for a new trial. It purchasers or for any other purpose." He is simply idle to intimate that the question then immediately states that, under the al- was not presented in the record. The statelegations of the second cause of action, he ment that the arguments in support of our was at the first trial permitted to introduce opinion en banc were the product of the evidence "respecting the difficulty of finding court's industry is largely true, but furnishes a market for the crushed rock and of delays no just ground for criticism. The responsiin the work consequent thereon." Further bilities of this court as a court of review are along in the same connection he argues: not limited to what the briefs may offer. Many appeals are presented in which the respondent fails to appear and file any brief, but we never treat the appellant's case as In such a case confessed on that account. we always make an independent investigation to the extent that our limited time will permit, and endeavor to reach a correct result. For an example see Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092, 48 L. R. A. (N. S.) 917. [6] Finally, the appellant, though insisting that the second trial should have been had on the pleadings as they stood when the new trial was granted, somewhat inconsistently now claims that the trial court erred in refusing to permit an amendment of the second cause of action. The trial court com "Now, since the oral portion provided that the rock, when removed, should become the property of the appellant as an additional consideration, then it was proper to inquire and introduce evidence to prove under what circumstances and conditions the rock so contracted to be removed could be rendered available and valuable as an additional consideration, and the question of what constituted a 'reasonable time' for performance was to be determined in the light of those conditions as they might be disclosed by the evidence. This line of inquiry was permitted to some extent by the court at the former trial, and it was thereby disclosed, as commented upon by this court, that the value of the rock when crushed, likewise the demand therefor, was dependent upon a variable market, which was controlled in turn to a large extent by the business conditions of the city of Spokane and the amount of public work in progress wherein crushed rock might be used as a building material. These things, we repeat, were undoubted-mitted no error in this respect. The purpose ly in the minds of the contracting parties at the time of the execution of the contract, and neces- of the proposed amendment was to claim a sarily constituted the surrounding circumstances breach of the contract on respondent's part in and conditions which must be considered in or- failing to pay 90 per cent. of the monthly esder to arrive at a just conclusion as to the time timates of rocks removed as provided in the within which performance was to be completed." written contract. This was not claimed as a If in this counsel does not construe his own breach in the original amended complaint. pleading precisely as we construed it in the To have permitted the amendment would quotation from our en banc opinion, which have introduced an entirely new cause of ache criticizes, then his language has no mean- tion. Moreover, to now assert this as a reaing at all. Nothing which we could say son for the appellant's delay in removing the could make it plainer than this language of rock would be a plain departure from the counsel does that the purpose of the second position taken by appellant in its reply, cause of action was to plead, in order to wherein it is alleged, in substance, that its prove as an additional consideration to that delay in removing the rock was contemplated named in the writing, a contemporaneous by a collateral oral agreement that appellant parol agreement contradicting the terms, en- should have such time to remove it as might larging the scope, and varying the purpose of be necessary to dispose of it to third persons the contract as written, and thus, under the for commercial purposes. To permit such a guise of proving an additional consideration, departure by amendment would be to encouringraft on the written agreement new terms age successive trials on wholly different theand covenants by parol so as to enlarge theories and to entertain appeals in piecemeal. time of performance. Counsel cannot in one Such a course would lead to a never-ending breath disclaim that purpose for his second litigation of the same transaction. Perrault cause of action as pleaded, and in the next v. Emporium Department Store Co., 83 Wash. breath claim that purpose for the only evi-578, 145 Pac. 438, and cases there cited. dence offered under that pleading. [5] Counsel intimates that the question of the sufficiency of the complaint was not raised in the briefs on the former appeal, and Affirmed. MORRIS, C. J., and FULLERTON, CHAD WICK, and ELLIS, JJ., concur. MUMFORD v. SMITH et al. (Supreme Court of Washington. 1. EXCHANGE OF PROPERTY RESCISSION EVIDENCE. 8 (No. 12665.) Jan. 6, 1916.) LAND in an addition to the town of Des Moines, in King county. Together they visited the hotel mentioned in the advertisement, and the appellant expressed her satisfaction therewith, but no serious, if any, negotiations were had with the owner looking to an exchange of Smith had in the meantime acproperty. quired the legal title to an apartment house and the lots on which the same was situate [Ed. Note.-For other cases, see Exchange of in the city of Everett, and he immediately Property, Cent. Dig. §§ 14-18; Dec. Dig. 8.] directed the appellant's attention to this 2. EXCHANGE OF PROPERTY 5-EXCHANGE property, offering it in exchange for her propOF LAND-FALSE REPRESENTATIONS. In an action to rescind a contract for the exchange of real estate, evidence held sufficient to show that plaintiff was induced to make the exchange through defendant's false representations. Des Moines addition. Where defendant, with intent to deceive erty. After some negotiation an exchange and defraud plaintiff, induced her to exchange was effected, the appellant taking the aparther farm and vacant lots for his apartment ment property, and the respondent taking the house by making false representations regarding 40-acre tract and some 71 of the lots in the the present and prospective value of the house, the rents obtainable, nearby prospective improvements, the desirability of the neighborhood, and his ability to close a pending sale to her large profit, and the house was grossly inadequate as a consideration for plaintiff's property, plaintiff was entitled to the rescission of the contract, since the transaction was a fraud upon her. The deeds were exchanged on June 13, 1913. Later on the appellant conceived that she had been overreached in the transaction, and brought the present action to rescind the contract. In her complaint she set forth at length the negotiations between herself and the respondent Smith leading up to the exchange, and charged him with falsely misrepresenting the [Ed. Note.-For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. 5.] 3. EXCHANGE OF PROPERTY —3—FALSE REP-income derived from the property, and with RESENTATIONS-MATERIAL FACTS. Such misrepresentations being not merely opinions excusable as seller's praise, but misrepresentations of material facts whose falsity was not readily ascertainable, plaintiff might rely upon them in making the exchange. [Ed. Note.-For other cases, see Exchange of Property, Cent. Dig. §§ 3, 7; Dec. Dig. 3.] 4. EXCHANGE OF PROPERTY FRAUD DECREE. 8 - Where defendant, directly after the exchange, sold part and mortgaged part of the property so obtained from plaintiff to innocent third persons, precluding a complete restoration in an action to rescind such contract of exchange, plaintiff is entitled in her decree to a money judgment over for the amount of her loss through such sale and mortgage. making false representations concerning its condition, its desirability as an apartment house, and its proximity to certain improvements about to be instituted by a public corporation which would greatly enhance its value. Issue was taken on the complaint, and a trial had, which resulted in a judgment for the respondent. The trial judge made no findings of fact, nor does the record otherwise disclose the grounds upon which he rested his decision. The evidence makes it clear, however, that he could not have found that the appellant was not defrauded. On this question there is no room for even a reasonable doubt. [Ed. Note.-For other cases, see Exchange of gave up property in the exchange which the Property, Cent. Dig. §§ 14-18; Dec. Dig. 8.] respondent admits had a substantial value, Department 2. Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge. Action by Harriet Mumford against Carmichael J. Smith and others to rescind a contract for the exchange of land. Judgment for defendants, and plaintiff appeals. Reversed. Aust & Terhune, of Seattle, and J. Y. Kennedy, of Everett, for appellant. E. C. Dailey, of Everett, for respondents. She and which conservative witnesses estimated to be worth from $4,000 to $5,000 over and above its incumbrances. She received noth ing in the exchange other than the apartment house property and certain furniture contained therein. No disinterested witness valued the apartment property in excess of $3,500, or the furniture in excess of $300, and some of them placed the values at even a less sum. The apartment property was taken subject to two mortgages, the one for $1,300, on which the interest was in arrears for more than a year, and the other for $1,500, on which the interest was in arrears for more than a year and a half; in fact, on the latter mortgage no interest had been paid since est valuation, she did not receive for the very considerable property she deeded to the respondent values in excess of $400 or $500. FULLERTON, J. [1] In the early part of the year 1913 the respondent Carmichael J. Smith, a real estate broker doing business in the city of Everett, inserted an advertisement its execution. Giving the property its highin a local paper offering to exchange a hotel in that city for farm lands. The appellant, Mumford, noticing the advertisement, called upon Smith with a view of making such an exchange. Mrs. Mumford at that time owned a 40-acre tract of land situated near Marysville, in Snohomish county, and some 100 lots There is but little question also that she was actually deceived and overreached by the respondent. While many of the representations she charges him with are denied by |