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constructed and maintained for the purpose, 142 Pac. 15, wherein this court, per Chadof handling freight. It is very obvious that wick, J., observed: the growth of a very large city might have "The duty of courts, when construing quescompelled the location of a vast number of tioned contracts, to search out the intention of industries along this water front and along arises out of an ambiguity or omission that de

the parties, is well established, but that duty this Bay Side extension, to move the freight mands the reception of testimony to illustrate to and from which would require almost or their intent, or to harmonize apparent conflicts. entirely the continuous use of the track; There is a presumption of finality which attends that freight cars and engines might have to erately raise doubts or conjure ambiguities for

all written contracts, and courts will not delibmove upon it very frequently. Such being the mere pleasure of construing them. Fairthe case, it seems plain that the parties orig- banks Steam Shovel Co. v. Holt & Jeffery, 79 inally contemplated that such might be done. Nor will the fact that a party has made a hard

Wash. 361, 140 Pac. 394 (L. R. A. 1915B, 477). There is nothing in the original or the pres- or improvident bargain warrant the court in ent contract between the parties whereby the binding the other party to terms raised by conrespondent or its predecessor was bound not struction or implication. These propositions to extend the Bay Side extension to any it is said that the whole contract, when con

are admitted as elementary by appellant; but other point, should it find it necessary, and strued in the light of the facts and circumstancthere is nothing in either of the instruments es existing at the time the contract was made prohibiting respondent or its predecessor ties, demands a ruling that respondent was

and the general object and purpose of the parfrom running any more than a certain num- bound to keep appellant's mill in operation. ber or kind of trains upon that track. The

There is nothing, unless we go outside fact that the railroad track is designated of the written contract, to bring the parties

within the rule announced in Excelsior Wrapper and described in the agreement as the Bay Co. v. Messinger, 116 Wis. 549, 93 N. W. 459, Side extension does not operate to limit the where the court found the contract to be amnature of the use of the railroad in any way. biguous, and applied the rule as it relates to an The track was at that time known and desig- for a certain amount of stock, which must have

established business having a certain demand nated as the Bay Side extension. It appears been known to the opposite party who was held that there was a plan on foot, at the time to have contracted with reference thereto. the original negotiations were entered into

* We have discussed this phase of the

case enough to demonstrate that to receive testibetween appellant and the railroad company, mony or to imply

terms would but lead to conon the part of one Allen C. Mason, to con- fusion, whereas courts invite testimony to clear struct an independent railroad, to be called up, ambiguous contracts and to make that certhe Washington Short Line Railroad, from by counsel, we think the case of Hamlyn & Co.

tain which is uncertain. Although questioned the terminus of the Bay Side extension at y. Wood & Co., 2 Q. B. Div. (1891) 488, is or near appellant's property to the then in point. We agree with the observation by proposed site of the Tacoma smelter. It was Lord Esher, M. R., that authorities are of little

use in cases of this character; for, at best, desired by the railroad company to construct they merely show that, in a particular case, an and operate such railroad itself, and steps implication was or was not made.” were taken to acquire all the rights of Mr. In Hamlyn & Co. v. Wood & Co., 2 Q. B. Mason for the purpose of extending the Bay Div. (1891) 488, cited by Chadwick, J., it was Side extension to the proposed site of the observed by the opinion writer that: Tacoma smelter. This shows to a slight ex- “When parties have put into writing the terms tent at least that the railroad was not con- upon which they agree, more especially in the sidered merely a side track or industrial thing lightly to imply what they have not ex

case of mercantile contracts, it is a dangerous spur, but was in a certain sense a railroad, pressed. Here it is clear that there is no breach and, as such, was contemplated and design- of the contract as expressed upon the face of ed to be a part of the railroad company's the written document." system and an extension thereof, although all prior negotiations of the parties are merged

"It is a well-settled principle of law that it was not then contemplated to be a main into a contract in writing when one is entered line railroad or any part thereof. The ul- into covering the subject-matter of such negotimate public and industrial demands and tiations, and we are not aware of any rule which

will authorize oral proof as to representations increased traffic, no matter to how large ex- made before the execution of such contract to tent, must have been contemplated by the be introduced in evidence for the purpose of conparties as part of the maintenance and op- tradicting or enlarging the scope of such con

tract, without an allegation in the pleadings eration of the road. Appellant further urges, that 'such contract was, in fact, signed by the however, that it is our duty, in defining the party making such allegations by mistake or relative rights of the parties, to ascertain fraud, or without full knowledge of the conditheir intent, and, when found, to give effect were entirely wanting in the case at bar, and

tions thereof. As we have seen, such allegations to that intent, and that the language employ- we think all representations or negotiations pried is to be construed in the light of the facts or to the execution of said contract were, under and circumstances existing at the time of its the circumstances of this case, entirely immateexecution and the objects and purposes the

rial, if the contract in question was unambigu

Staver & Walker v. Rogers, 3 Wash, 603, parties had in view, citing a number of 28 Pac. 906. authorities.

So in the case at bar. Appellant did not The same contention was made in the case plead any mistake or fraud. There was no of Kanaskat Lumber & Shingle Company v. fiduciary relation between the parties. They

ous.

resented by extremely competent counsel. , result from the increased use of the defendThey proceeded with the utmost care and ant's railroad, it was held that the grant of deliberation.

a right of way to a railroad company "for all Without reviewing all the cases cited by uses and purposes or in any way connected appellant upon this phase of the case, it with the construction, preservation, occupawill be found that in nearly all of them ap- tion, and enjoyment of said railroad" is pears some fact or circumstance tending broad enough to embrace all uses for railroad to show fraud or mistake aside from the purposes, however much increased, and that mere reliance upon the representations of it will be conclusively presumed that all damthe other party to the contract as to its ages to the land outside of the right of way, contents.

past, present, and future, were included in “A deed which is upon its face an absolute the consideration paid for such grant. Chigrant is not subject to have reservations or limi- cago, R. I. & P. R. Co. v. Smith, 111 Ill. 363. tations engrafted thereon by parol or extrinsic This case was reaffirmed by the Supreme evidence of intentions, understandings, or agreements contradictory to or at variance with its Court of Illinois in Kotz v. Illinois Cent. R. clear language." 17 Cyc. 620.

Co., 188 Ill. 578, 59 N. E. 240. "In order to let in evidence of a collateral Certain property owners executed a deed agreement between the parties, such agreement must be consistent with the terms of the writ- to a railroad company, granting the right of ing; and the evidence must not tend to vary way for a branch road across their property. or contradict the terms of the written instru- The Supreme Court of Minnesota in that case ment or to defeat its operation." 17 Cyc. 714. (Liedel v. Northern Pacific R. Co., 89 Minn.

See, also, Hubenthal v. Spokane & Inland 284, 94 N. W. 877) held that the road conEmpire R. Co., 43 Wash, 677, 86 Pac. 955; structed pursuant to the contract was not a Hathaway v. Yakima Water Co., 14 Wash. private line for the benefit of the property 469, 44 Pac. 896, 53 Am. St. Rep. 874; Smith owners only, but was a public line, a part of Land & Gravel Co. v. Corbin, 81 Wash. 494, the company's railroad system, and subject 142 Pac. 1163.

to general state laws governing railroads. In The conveyance in question conveys by ab- that case it was said: solute grant the right of way for railroad "Considering the contract in all its bearings, and other similar purposes to the respond we are satisfied that it is not susceptible of the ent. There are no reservations or limitations grant is absolute of a strip of land through the

interpretation put upon it by respondent. The ingrafted upon it limiting or qualifying the property described to be used for a right of way grant for railroad and other similar purposes. for the railroad track. In consideration of this Had appellant desired to limit its use as a grant the railroad company agreed to construct

a track over the right of way and to transfer or right of way by providing that it should be switch cars from it and its main railroad to and used only for freight purposes, or only as an from any private tracks connecting therewith industrial spur, or that only a certain num- at no greater than the usual charges for such ber of trains, engines, or cars should be mov- make this branch road a part of the main sys

services. The effect of these provisions was to ed thereon during the day or during certain tem, and, in connection therewith, to subject it hours, or that, in case of being used for ad- to the regulations of the state Railroad and ditional purposes other than the uses and Warehouse Commission. This branch is in no purposes immediately contemplated, appel- cient part of appellant's railway system. It

sense a private track, but is a complete and effilant should be compensated by the payment may be used for the benefit of the public as well of further damages than the consideration as the private property referred to, and the comexpressed in the contract, all those things and condemn property for its uses in connection

pany may establish a station or freighthouses could easily have been included in the con- therewith to the same extent that it may for the tract, and, not having been included, it is benefit of any other part of the road. "This inreasonable to infer that they were not in- ference is not modified by the language pointed tended to be required. The legal effect of out by respondent, viz., that the track is for the

accommodation and use of the parties to the the grant to the railroad company of a right deed. That clause neither adds to nor takes of way to be used for railroad and other away from the effect of the contract. If it be similar purposes is that the land thus taken stricken out, it would follow that the track beand paid for for public use may be used for came a part of the main system, and for that

reason must be operated for the accommodation a public use by those corporations which act of the company; but it must be operated for as agents and trustees for the public, that the benefit of the grantors also, without regard such corporations have a right to make all to that clause, for the reason that it is required the use of the land which the necessities and and that cars be delivered at reasonable rates.

to be connected with their private side tracks, convenience of the public may require, and Neither does the other provision add to or take that the landowner receives in damages a away anything from the effect of the contract, compensation which in theory of law is all and determine at any time when the strip of

viz., that the rights of the company shall cease the indemnity for all such uses. Brainard v. land ceases to be occupied for such railroad Capp, 10 Cush. (Mass.) 6, 57 Am. Dec. 74, track. In the absence of such an agreement, it Western Union Tel. Co. v. Polhemus, 178 Fed. does not follow that the railway company, of its 904, 102 C. C. A. 105, 29 L. R. A. (N. S.) 465. track, and leave the grantors without railroad

own volition, might arbitrarily abandon the The purpose of the taking must fix the right. facilities. In this respect the company is also Newton v. Perry, 163 Mass. 319, 39 N. E. under the dominion of the laws of the state." 1032.

In Abraham v. Oregon & C. R. Co., decided In an action to recover damages claimed to by the Supreme Court of Oregon, 37 Or. 495,

* * Here

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60 Pac. 899, 64' L. R. A. 391, 82 Am. St. Rep. I thereafter reasonably produce.' 779, Bean, J., writing the opinion, said:

the strip of land is, by the terms of the con"We come, then, directly to a consideration of road' right of way and for the purpose of con:

tract, to be conveyed for the purpose of a railthe question as to whether parol evidence is ad: structing and operating thereon a double-track missible to show that the words ‘legitimate rail- electric railway.road purposes' were used in the deed in a particular sense. It is an elementary rule of law It is not contended by appellant in this that parol evidence cannot be admitted to con- case that the proposed additional use by retradict or vary a written instrument; and it is spondent of the right of way in question is equally well settled that parol evidence may not be given to show that common words, the mean- not a legitimate railroad purpose.

We can ing of which is plain, and which do not appear see nothing ambiguous in the contract that from the context to have been used in a peculiar subjects it to extrinsic construction. We are sense, were, in fact, so used. leaf, Evidence (15th Ed.) 8 295. And Lord Chief impelled to the conclusion that the judgment Justice Tindall says: The general rule I take of the lower court was right. to be that, where the words of any written in- Affirmed. strument are free from ambiguity in themselves, and where external circumstances do not create FULLERTON, ELLIS, MOUNT, MAIN, any doubt or difficulty as to the proper application of those words to claimants under the in- and PARKER, JJ., concur. strument, or the subject-matter to which the instrument relates, such instrument is always to MORRIS, C. J. I cannot concur in the mabe construed according to the strict, plain, com. jority opinion. Time and pressing engagemon meaning of the words themselves, and that in such case evidence dehors the instrument, for ments prevent my writing a formal dissent. the purpose of explaining it according to the sur- I wish, however, to express in a casual way mised or alleged intention of the parties to the the reasons for my views. instrument, is utterly inadmissible. If it were otherwise, no lawyer would be safe in advising

The majority opinion is based upon the upon the construction of a written instrument, fundamental error that the contract of Jannor any party in taking under it; for the ablest uary, 1906, is an unlimited grant of a right advice might be controlled, and the clearest title of way for general railroad purposes. The undermined, if at some future period parol evidence of the particular meaning which the party first rule of interpretation as applied to affixed to his words, or of his secret intention in grants is that the contract must be viewed making the instrument, or of the objects be with reference to its subject-matter, its oblimeant to take benefit under it, might be set up to contradict or vary the plain language of the gations, and the manifest purpose and inteninstrument itself.' * 'Ambiguous words tion of the parties. The majority opinion or phrases may be reasonably construed to effect concedes this rule, then departs from it, holdthe intention of the parties, but the province of ing that the granting words in the so-called construction, except when technical terms are employed, can never extend beyond the language deed of January, 1906, are broad enough to employed, the subject matter, and the surround- entitle the railway company to use the right ing circumstances. It is therefore not competent of way for general main line purposes, igfor either of the parties to a contract, where its language is plain and unambiguous, to prove by noring in so holding, not only the basic rule parol evidence how it was understood, or the of interpretation, but the manifest intention meaning of the words used. * Applying of the parties as expressed in the instrument this rule to the case in band, it is clear that the itself. It is as clear as language can make plaintiff cannot show by parol testimony that the deed from himself and Willis to the railroad it, when the agreements of January, 1906, and company was not intended to, and did not, con- May, 1888, are read together, as they should vey to such company the right to use the proper- be, that the parties were dealing with only ty for all legitimate railroad purposes.”

one contemplated use-a right of way for the In St. Louis & R. Elect. R. Co. v. Van so-called Bay Side extension, All parties Hoorebeke, 191 Ill. 633, 61 N. E. 326, the knew and contracted with knowledge of the court said:

fact that this extension was a freight serv"If the appellees desired to reserve the right ice track for the accommodation of industries to build crossings across the right of way, and across the road-bed of the appellant, they should along the water front. Now, after so using have embodied such a provision in the contract. this right of way all these years (a use con

* Where a railroad company obtains a firming the limited character of the granted right of way by purchase from the landowner, right as contemplated by the parties), the having power under the Constitution and law to de so, all the incidents attach to such right as are railway company constructs a new main line acquired by eminent domain when the right of intersecting this extension right of way at the way is obtained by condemnation, it being con-northwest boundary of appellant's property, fully exercise the power of eminent domain. In and has since such construction used this other words, a railroad company acquires the right of way, not only for the purposes of its same rights and privileges under a private grant Bay Side extension, but also for trackage for as to the construction and operation of its road, as under a right of way acquired by condemna. the freight and passenger service of the tion, where it has the power, under the law, to Northern Pacific Railway Company, the Ore. receive by grant and to acquire by condemnation. gon-Washington Railroad & Navigation ComHad this right of way been lawfully acquired by condemnation, appellees would have received pany, and the Great Northern Railway Comcompensation for the value of the strip of land, pany in connection with the new main line and also an assessment of all damages to the to the south, known as the Point Defiance residue of their tract to result from the con- line. It is frankly conceded by the railway struction and operation of the road. The rule company that such a use was never dreamed of condemnation embraces all past, present, and of at the time the right of way was granted,

concurs

the so-called deed of January, 1906, is an ab- 14. CRIMINAL LAW w 1028-APPEAL-SCOPE solute grant of a right of way for railroad

OF REVIEW-SUFFICIENCY OF EXCEPTIONS. purposes, and parol evidence is not admissi- the offense cannot be considered on appeal, not

The question of defendant's connection with ble to vary or contradict its terms.

having been presented to or decided by the trial I deny: First, that the agreements of Jan- court. uary, 1906, and May, 1888, show an absolute [Ed. Note.-For other cases, see Criminal grant for railroad purposes; and, second, 1028.]

Law, Cent. Dig. 88 2619, 2620; Dec. Dig. that there is an attempt here to vary or contradict the terms of a written agreement. Department 2. Appeal from Superior To contradict a written agreement is one Court, Whitman County; R. L. McCroskey, thing. To admit evidence to enable the court Judge. to ascertain the real intention and agreement Wallace Ketterman, alias Jack Long, was of the parties and enforce it accordingly is convicted of receiving stolen goods, and he another thing. The first may not be done; appeals. Affirmed. the second may, either by reforming the in- Charles R. Hill and 0. H. Horton, both strument itself or by treating it as reformed. of Colfax, for appellant. R. M. Burgunder

Those are, in the main, the reasons why I and Thomas Neill, both of Colfax, for the cannot concur. More time might enable me State. to make them plainer. I have, however, said enough to indicate the ground of my dissent

PARKER, J. The defendant, Wallace without attempting to show the extent to Ketterman, was charged by information filed which the facts and law sustain my views in the superior court for Whitman county CHADWICK, J.,

with Judge

with the crime of receiving stolen goods.

His trial before the court and a jury resulted MORRIS.

in verdict and judgment against him, from

which he has appealed to this court. STATE V. KETTERMAN. (No. 12900.)

Counsel for appellant first contend that the (Supreme Court of Washington. Jan. 11,

trial court erred in overruling their demurrer 1916.)

to the information, which reads, in part, as 1. RECEIVING STOLEN GOODS 7-INFORMA- follows: TION-SUFFICIENCY_"LARCENY."

"Wallace Ketterman, alias Jack Long, Under Rem. & Bal. Code, § 2601, making did then and there willfully, unlawfully, and feguilty of “larceny" every person who with in- loniously, with the intent to deprive the owner tent to deprive or defraud the owner thereof: thereof, and knowing the same to have been (1) Takes the property of another;, (2) obtains stolen, receive at substantially the same time, from the owner his property by aid of any or- from some person whose name is unknown to the der for payment, knowing it to be false; or (3) prosecuting attorney, and withhold, one saddle having property in his possession and secreting and bridle, the personal property of Ivan Marsh, it or appropriating it to his own use; or (4) of the value of $30, one saddle, the personal having received property by mistake with knowl- property of J. H. McCroskey, of the value of edge thereof, withholds or appropriates it to $25, and one saddle, the personal property of his own use, and (5) every person who, know. Williar Horton, of the value of $25.' ing the same to have been "so appropriated," shall receive or aid in selling or withholding any

This was intended to charge the crime as property wrongfully appropriated—the words defined by section 2601, Rem. & Bal. Code, *so appropriated” refer to the manner of the which reads: original larceny in each of the preceding four

“Every person who, with intent to deprive or subdivisions. (Ed. Note. For other cases,

defraud the owner thereof (1) Shall take, lead

see Receiving Stolen Goods, Cent. Dig. 88 9–14; Dec. Dig. Shall obtain from the owner or another the pos

or drive away the property of another; or (2) 7. .

session of or title to any property by color or For other definitions, see Words and Phrases, aid of any order for the payment or delivery of First and Second Series, Larceny.]

property or money or any check or draft, know2. RECEIVING STOLEN Goods en 7-INFORMA- ing that the maker or drawer of such order, TION-SUFFICIENCY.

check or draft was not authorized or entitled In charging the offense of receiving stolen to make or draw the same, or by color or aid goods it is not necessary to allege the facts of of any fraudulent or false representation, perthe original unlawful taking.

sonation or pretense or by any false token or Stolen Goods, Cent. Dig. $8 9–14; Dec. Dig. his possession, 'custody or control, as bailee, fac[Ed. Note.-For other cases, see Receiving writing or by any trick, device, bunco game or

fortune telling; or (3) Having any property in Cm7.]

tor, pledgee, servant, attorney, agent, employé, 3. CRIMINAL LAW 695 TRIAL CHAL- trustee, executor, administrator, guardian or of LENGE TO SUFFICIENCY OF EVIDENCE-DEF- ficer of any person, estate, association or corpo

ration, or as a public officer, or a person author. In a prosecution for receiving stolen goods, ized by agreement or by competent authority to a challenge to the sufficiency of the evidence, take or hold such possession, custody or conconsisting only of a motion to withdraw the case trol, or as a finder thereof, shall secrete, with. from the jury and to instruct the jury to re- hold or appropriate the same to his own use or turn a verdict of not guilty on the evidence pre- to the use of any person other than the true sented by the state, was insufficient to raise owner or person entitled thereto; or (4) Having the question of defendant's connection with the received any property by reason of a mistake, crime charged.

shall with knowledge of such mistake secrete, [Ed. Note.-For other cases, see Criminal withhold or appropriate the same to his own use Law, Cent. Dig. 88 1633–1638; Dec. Dig. or to the use of any person other than the true 695.]

owner or person entitled thereto; and (5) Every For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

INITENESS.

person who, knowing the same to have been so for." State v. Tamler, 19 Or. 528, 25 Pac. 71, appropriated, shall bring into this state, or buy, 9 L. R. A. 853; 12 Cyc. 596. sell, receive or aid in concealing or withholding

[4] To now rule upon these motions conany property wrongfully appropriated, whether within or outside of this state, in such manner trary to the ruling of the trial court would, as to constitute larceny under the provisions of in effect, be ruling upon a question not fairly this act-steals such property and shall be guilty presented to that court. of larceny."

The judgment is affirmed. [1] The theory of counsel's contention touching the sufficiency of the information

MORRIS, C. J., and BAUSMAN, MAIN, is not made very clear to us, but it seems

and HOLCOMB, JJ., concur. to be: (1) That the words "so appropriated," in the fifth subdivision above quoted, refer only to property appropriated in the manner specified in the fourth subdivision im- UNION MACHINERY & SUPPLY CO. V. mediately preceding; and (2) that the in

DARNELL (No. 12721.) formation is defective, in that the manner (Supreme Court of Washington. Jan. 11, 1916.) of the original larceny is not charged as be

PROMISE TO ing that defined in the fourth subdivision. 1. FRAUDS, STATUTE OF 33

PAY DEBT OF ANOTHER-ORIGINAL PROMISE. As to the first, we are of the opinion that

A promise for a valuable consideration the words “so appropriated," in the fifth sub- made by one person to another to pay such othdivision, refer to the manner of the original er's debt to a third person is an original unlarceny of property specified in each and all dertaking of the promisor, and not a promise to

pay the debt of another within the statute, of the preceding four subdivisions.

though resting in parol. [2] As to the second, it is the law that: [Ed. Note.-For other cases, see Frauds, Stat"It is not necessary to allege the facts going ute of, Cent. Dig. $8 50-53, 56; Dec. Dig. to constitute the original unlawful taking or 33.) embezzlement, as would be required in case of 2. CONTRACTS 187–PROMISE FOR BENEFIT prosecution therefor.” 34 Cyc. 520.

OF THIRD PERSON-RIGHT OF ACTION. Our own decisions in State v. Druxinman, Where one promises to pay another's debt 34 Wash. 275, 75 Pac. 814, and State v. Ray, to a third person, such third person may sue

directly upon the promise. 62 Wash. 582, 114 Pac. 439, lend support to

(Ed. Note-For other cases, see Contracts, this view, though not directly in point. We Cent. Dig. $8 798-807; Dec. Dig. Eww187.] conclude that the information is sufficient.

3. EVIDENCE O 441 PAROL EVIDENCE [3] It is further contended that the trial

TERMS OF CONTRACT. court erred in overruling the challenge to the As between the parties to a formal written sufficiency of the evidence to support con contract parol evidence is inadmissible to prove viction, made by counsel for appellant in any additional promise for the benefit of a third their motions for directed verdict of acquit- large the terms and purpose of the written con

person which would tend to contradict or ental. These motions were made at the close tract. of the state's evidence and at the close of all [Ed. Note.-For other cases, see Evidence, the evidence. The first was simply:

Cent. Dig. 88 1719, 1723-1763, 1765–1845, 2030 “If the court please, at this time I move that 2047;. Dec. Dig. 441; Contracts, Cent. Dig. the case be withdrawn from the jury and the

8 1616.) jury instructed to return a verdict of not guilty 4. EVIDENCE 419_PAROL EVIDENCE-ADon the evidence presented by the state."

DITIONAL CONSIDERATION. The second was no more specific. Neither consistent with that expressed in a written con

Though an additional consideration not inwas argued by counsel. It is plain from the tract may usually be shown by parol evidence, record that this is not a case of no evidence. it is not competent to ingraft parol conditions The evidence was ample to show the com- upon a contract complete and unambiguous on mission of the crime, though not very cer- consideration.

its face under the guise of proving an additional tain as to appellant's connection therewith. (Ed. Note. For other cases, see Evidence, This is the particular defect now for the Cent. Dig. $$ 1912–1928; Dec. Dig. 419.) first time urged by counsel for appellant. 5. EVIDENCE 419–PAROL EVIDENCE-DEED Answering a similar contention in State v. -CONSIDERATION. Hyde, 22 Wash. 551, at page 564, 61 Pac.

The primary purpose of a deed being to 719, at page 723, Judge White, speaking for sideration expressed, short of proving that the

convey title, explanation of variation of the conthe court, said:

deed was without consideration, does not tend “This motion is a general one, and only chal- to defeat its purpose and is admissible. lenges the general sufficiency of the evidence; [Ed. Note.-For other cases, see Evidence, that is, says, in effect, there is a total failure Cent. Dig. 88 1912–1928; Dec. Dig. 419.) of evidence. Upon a motion of this kind, the 6. MORTGAGES Cw137–NATURE AND EFFECT.. only question raised is whether there is any evidence tending to prove the crime charged, not

In Washington a “mortgage" is not a conwhether the evidence fails in some particular veyance with a defeasance as it was at common matters. The record fails to disclose that the law, but is the mere written evidence of a conobjection to the evidence in the particular mat- tract of security, the prima facie purpose of ter, as to the kind,

amount, and value of money, which is to secure a debt. was called to the attention of the court, and in

[Ed. Note.-For other cases, see Mortgages, a case of this kind the motion should direct the Cent. Dig. 88 270-276; Dec. Dig. 137. attention of the court and opposite counsel to For other definitions, see Words and Phrases, the precise point made and the grounds there- / First and Second Series, Mortgage.]

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