* 142 Pac. 15, wherein this court, per Chadwick, J., observed: * * constructed and maintained for the purpose of handling freight. It is very obvious that 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 dethe 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 all written contracts, and courts will not delibthat freight cars and engines might have to erately raise doubts or conjure ambiguities for move 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 conThese propositions respondent or its predecessor was bound not struction or implication. are admitted as elementary by appellant; but to extend the Bay Side extension to any it is said that the whole contract, when conother 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 and the general object and purpose of the parties, demands a ruling that respondent was from 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. * We have discussed this phase of the the original negotiations were entered into 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 certain which is uncertain. Although questioned the Washington Short Line Railroad, from by counsel, we think the case of Hamlyn & Co. the terminus of the Bay Side extension at v. 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 Lord Esher, M. R., that authorities are of little proposed site of the Tacoma smelter. It was 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. Mason for the purpose of extending the Bay Side extension to the proposed site of the Tacoma smelter. This shows to a slight extent at least that the railroad was not considered merely a side track or industrial spur, but was in a certain sense a railroad, and, as such, was contemplated and designed to be a part of the railroad company's system and an extension thereof, although it was not then contemplated to be a main line railroad or any part thereof. The ultimate public and industrial demands and increased traffic, no matter to how large extent, must have been contemplated by the parties as part of the maintenance and operation of the road. Appellant further urges, however, that it is our duty, in defining the relative rights of the parties, to ascertain their intent, and, when found, to give effect to that intent, and that the language employed is to be construed in the light of the facts and circumstances existing at the time of its execution and the objects and purposes the parties had in view, citing a number of authorities. The same contention was made in the case of Kanaskat Lumber & Shingle Company v. In Hamlyn & Co. v. Wood & Co., 2 Q. B. Div. (1891) 488, cited by Chadwick, J., it was observed by the opinion writer that: "When parties have put into writing the terms upon which they agree, more especially in the case of mercantile contracts, it is a dangerous thing lightly to imply what they have not expressed. Here it is clear that there is no breach of the contract as expressed upon the face of the written document." "It is a well-settled principle of law that all prior negotiations of the parties are merged into a contract in writing when one is entered into covering the subject-matter of such negowill authorize oral proof as to representations tiations, and we are not aware of any rule which made before the execution of such contract to be introduced in evidence for the purpose of contract, without an allegation in the pleadings tradicting or enlarging the scope of such conthat such contract was, in fact, signed by the party making such allegations by mistake or fraud, or without full knowledge of the conditions thereof. As we have seen, such allegations were entirely wanting in the case at bar, and we think all representations or negotiations prior to the execution of said contract were, under the circumstances of this case, entirely immaterial, if the contract in question was unambiguous.' Staver & Walker v. Rogers, 3 Wash. 603, 28 Pac. 906. So in the case at bar. Appellant did not plead any mistake or fraud. There was no fiduciary relation between the parties. They 154 PACIFIC REPORTER (Wash. 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. Without reviewing all the cases cited by appellant upon this phase of the case, it will be found that in nearly all of them appears some fact or circumstance tending to show fraud or mistake aside from the mere reliance upon the representations of the other party to the contract as to its contents. "A deed which is upon its face an absolute grant is not subject to have reservations or limitations engrafted thereon by parol or extrinsic evidence of intentions, understandings, or agreements contradictory to or at variance with its clear language." 17 Cyc. 620. "In order to let in evidence of a collateral agreement between the parties, such agreement must be consistent with the terms of the writing; and the evidence must not tend to vary or contradict the terms of the written instrument or to defeat its operation." 17 Cyc. 714. See, also, Hubenthal v. Spokane & Inland Empire R. Co., 43 Wash. 677, 86 Pac. 955; Hathaway v. Yakima Water Co., 14 Wash. 469, 44 Pac. 896, 53 Am. St. Rep. 874; Smith Land & Gravel Co. v. Corbin, 81 Wash. 494, 142 Pac. 1163. uses and purposes or in any way connected a right of way to a railroad company "for all with the construction, preservation, occupation, and enjoyment of said railroad" is broad enough to embrace all uses for railroad purposes, however much increased, and that it will be conclusively presumed that all damages to the land outside of the right of way, the consideration paid for such grant. Chipast, present, and future, were included in cago, R. I. & P. R. Co. v. Smith, 111 Ill. 363. This case was reaffirmed by the Supreme Court of Illinois in Kotz v. Illinois Cent. R. Co., 188 Ill. 578, 59 N. E. 240. to a railroad company, granting the right of Certain property owners executed a deed way for a branch road across their property. The Supreme Court of Minnesota in that case (Liedel v. Northern Pacific R. Co., 89 Minn. 284, 94 N. W. 877) held that the road constructed pursuant to the contract was not a private line for the benefit of the property owners only, but was a public line, a part of the company's railroad system, and subject that case it was said: to general state laws governing railroads. In It we are satisfied that it is not susceptible of the "Considering the contract in all its bearings, grant is absolute of a strip of land through the interpretation put upon it by respondent. The property described to be used for a right of way for the railroad track. In consideration of this grant the railroad company agreed to construct switch cars from it and its main railroad to and a track over the right of way and to transfer or from any private tracks connecting therewith at no greater than the usual charges for such make this branch road a part of the main sysservices. The effect of these provisions was to tem, and, in connection therewith, to subject it to the regulations of the state Railroad and Warehouse Commission. This branch is in no cient part of appellant's railway system. sense a private track, but is a complete and effimay be used for the benefit of the public as well as the private property referred to, and the company may establish a station or freighthouses therewith to the same extent that it may for the and condemn property for its uses in connection benefit of any other part of the road. This inference is not modified by the language pointed out by respondent, viz., that the track is for the deed. accommodation and use of the parties to the away from the effect of the contract. If it be That clause neither adds to nor takes stricken out, it would follow that the track became a part of the main system, and for that of the company; but it must be operated for reason must be operated for the accommodation the benefit of the grantors also, without regard to that clause, for the reason that it is required and that cars be delivered at reasonable rates. to be connected with their private side tracks, Neither does the other provision add to or take away anything from the effect of the contract, and determine at any time when the strip of viz., that the rights of the company shall cease land ceases to be occupied for such railroad track. In the absence of such an agreement, it does not follow that the railway company, of its track, and leave the grantors without railroad own volition, might arbitrarily abandon the facilities. In this respect the company is also under the dominion of the laws of the state." The conveyance in question conveys by absolute grant the right of way for railroad and other similar purposes to the respondent. There are no reservations or limitations ingrafted upon it limiting or qualifying the grant for railroad and other similar purposes. Had appellant desired to limit its use as a right of way by providing that it should be used only for freight purposes, or only as an industrial spur, or that only a certain number of trains, engines, or cars should be moved thereon during the day or during certain hours, or that, in case of being used for additional purposes other than the uses and purposes immediately contemplated, appellant should be compensated by the payment of further damages than the consideration expressed in the contract, all those things could easily have been included in the contract, and, not having been included, it is reasonable to infer that they were not intended to be required. The legal effect of the grant to the railroad company of a right of way to be used for railroad and other similar purposes is that the land thus taken and paid for for public use may be used for a public use by those corporations which act as agents and trustees for the public, that such corporations have a right to make all the use of the land which the necessities and convenience of the public may require, and that the landowner receives in damages a compensation which in theory of law is all the indemnity for all such uses. Brainard v. Clapp, 10 Cush. (Mass.) 6, 57 Am. Dec. 74, Western Union Tel. Co. v. Polhemus, 178 Fed. 904, 102 C. C. A. 105, 29 L. R. A. (N. S.) 465. The purpose of the taking must fix the right. Newton v. Perry, 163 Mass. 319, 39 N. E. 1032. In an action to recover damages claimed to by the Supreme Court of Oregon, 37 Or. 495, In Abraham v. Oregon & C. R. Co., decided 60 Pac. 899, 64 L. R. A. 391, 82 Am. St. Rep. 779, Bean, J., writing the opinion, said: "We come, then, directly to a consideration of the question as to whether parol evidence is admissible to show that the words 'legitimate railroad purposes' were used in the deed in a particular sense. It is an elementary rule of law that parol evidence cannot be admitted to contradict or vary a written instrument; and it is equally well settled that parol evidence may not be given to show that common words, the meaning of which is plain, and which do not appear from the context to have been used in a peculiar sense, were, in fact, so used. 1 Green 事 * * Here | thereafter reasonably produce.' * It is not contended by appellant in this FULLERTON, ELLIS, MOUNT, MAIN, and PARKER, JJ., concur. leaf. Evidence (15th Ed.) § 295. And Lord Chief Justice Tindall says: "The general rule I take to be that, where the words of any written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, 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, comjority 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 upon the construction of a written instrument, nor any party in taking under it; for the ablest advice might be controlled, and the clearest title undermined, if at some future period parol evidence of the particular meaning which the party affixed to his words, or of his secret intention in making the instrument, or of the objects he meant to take benefit under it, might be set up to contradict or vary the plain language of the instrument itself.' * # * 'Ambiguous words or phrases may be reasonably construed to effect the intention of the parties, but the province of construction, except when technical terms are employed, can never extend beyond the language employed, the subject-matter, and the surrounding circumstances. It is therefore not competent for either of the parties to a contract, where its language is plain and unambiguous, to prove by parol evidence how it was understood, or the meaning of the words used. 寧 Applying this rule to the case in hand, it is clear that the plaintiff cannot show by parol testimony that the deed from himself and Willis to the railroad company was not intended to, and did not, convey to such company the right to use the property for all legitimate railroad purposes." The majority opinion is based upon the fundamental error that the contract of January, 1906, is an unlimited grant of a right of way for general railroad purposes. The first rule of interpretation as applied to grants is that the contract must be viewed with reference to its subject-matter, its obligations, and the manifest purpose and intention of the parties. The majority opinion concedes this rule, then departs from it, holding that the granting words in the so-called deed of January, 1906, are broad enough to entitle the railway company to use the right of way for general main line purposes, ignoring in so holding, not only the basic rule of interpretation, but the manifest intention of the parties as expressed in the instrument itself. It is as clear as language can make it, when the agreements of January, 1906, and May, 1888, are read together, as they should be, that the parties were dealing with only one contemplated use-a right of way for the so-called Bay Side extension. All parties knew and contracted with knowledge of the 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, ceded or established that such company can lawfully 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 Orereceive by grant and to acquire by condemnation. gon-Washington Railroad & Navigation ComHad this right of way been lawfully acquired pany, and the Great Northern Railway Comby condemnation, appellees would have received compensation 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 is that the appraisement of damages in a case 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, In St. Louis & R. Elect. R. Co. v. Van Hoorebeke, 191 Ill. 633, 61 N. E. 326, the court said: the so-called deed of January, 1906, is an ab- 14. CRIMINAL LAW 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, Law, Cent. Dig. 88 2619, 2620; Dec. Dig. 1028.] that there is an attempt here to vary or contradict the terms of a written agreement. To contradict a written agreement is one thing. To admit evidence to enable the court to ascertain the real intention and agreement of the parties and enforce it accordingly is another thing. The first may not be done; the second may, either by reforming the instrument itself or by treating it as reformed. Those are, in the main, the reasons why I cannot concur. More time might enable me to make them plainer. I have, however, said enough to indicate the ground of my dissent without attempting to show the extent to which the facts and law sustain my views. concurs with Judge CHADWICK, J., MORRIS. (No. 12900.) STATE v. KETTERMAN. 1916.) 7-INForma 1. RECEIVING STOLEN GOODS [Ed. Note.-For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 9-14; Dec. Dig. Om 7. For other definitions, see Words and Phrases, In charging the offense of receiving stolen goods it is not necessary to allege the facts of the original unlawful taking. [Ed. Note.-For other cases, see Stolen Goods, Cent. Dig. 88 9-14; ~~7.] - Receiving - 3. CRIMINAL LAW 695 TRIAL CHALLENGE TO SUFFICIENCY OF EVIDENCE-DEF INITENESS. In a prosecution for receiving stolen goods, a challenge to the sufficiency of the evidence, consisting only of a motion to withdraw the case from the jury and to instruct the jury to return a verdict of not guilty on the evidence presented by the state, was insufficient to raise the question of defendant's connection with the crime charged. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. 695.] Department 2. Appeal from Superior Court, Whitman County; R. L. McCroskey, Judge. Wallace Ketterman, alias Jack Long, was convicted of receiving stolen goods, and he appeals. Affirmed. Charles R. Hill and O. H. Horton, both of Colfax, for appellant. R. M. Burgunder and Thomas Neill, both of Colfax, for the State. PARKER, J. The defendant, Wallace Ketterman, was charged by information filed in the superior court for Whitman county with the crime of receiving stolen goods. His trial before the court and a jury resulted in verdict and judgment against him, from which he has appealed to this court. Counsel for appellant first contend that the trial court erred in overruling their demurrer to the information, which reads, in part, as follows: "Wallace Ketterman, alias Jack Long, * did then and there willfully, unlawfully, and feloniously, with the intent to deprive the owner thereof, and knowing the same to have been stolen, receive at substantially the same time, from some person whose name is unknown to the prosecuting attorney, and withhold, one saddle and bridle, the personal property of Ivan Marsh, of the value of $30, one saddle, the personal property of J. H. McCroskey, of the value of $25, and one saddle, the personal property of William Horton, of the value of $25." This was intended to charge the crime as defined by section 2601, Rem. & Bal. Code, which reads: "Every person who, with intent to deprive or defraud the owner thereof (1) Shall take, lead or drive away the property of another; or (2) Shall obtain from the owner or another the possession of or title to any property by color or aid of any order for the payment or delivery of property or money or any check or draft, knowing that the maker or drawer of such order. check or draft was not authorized or entitled to make or draw the same, or by color or aid of any fraudulent or false representation, personation or pretense or by any false token or writing or by any trick, device, bunco game or his possession, custody or control, as bailee, facfortune telling; or (3) Having any property in tor, pledgee, servant, attorney, agent, employé, trustee, executor, administrator, guardian or officer of any person, estate, association or corporation, or as a public officer, or a person authorized by agreement or by competent authority to take or hold such possession, custody or control, or as a finder thereof, shall secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; or (4) Having received any property by reason of a mistake, shall with knowledge of such mistake secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; and (5) Every For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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 any property wrongfully appropriated, whether within or outside of this state, in such manner as to constitute larceny under the provisions of this act-steals such property and shall be guilty of larceny." [1] The theory of counsel's contention touching the sufficiency of the information is not made very clear to us, but it seems 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 immediately preceding; and (2) that the information is defective, in that the manner of the original larceny is not charged as being that defined in the fourth subdivision. As to the first, we are of the opinion that the words "so appropriated," in the fifth subdivision, refer to the manner of the original larceny of property specified in each and all of the preceding four subdivisions. [2] As to the second, it is the law that: "It is not necessary to allege the facts going to constitute the original unlawful taking or embezzlement, as would be required in case of prosecution therefor." 34 Cyc. 520. [4] To now rule upon these motions contrary to the ruling of the trial court would, in effect, be ruling upon a question not fairly presented to that court. The judgment is affirmed. MORRIS, C. J., and BAUSMAN, MAIN, and HOLCOMB, JJ., concur. UNION MACHINERY & SUPPLY CO. v. DARNELL. (No. 12721.) (Supreme Court of Washington. Jan. 11, 1916.) 1. FRAUDS, STATUTE OF 33 PROMISE TO PAY DEBT OF ANOTHER-ORIGINAL PROMISE. A promise for a valuable consideration made by one person to another to pay such other's debt to a third person is an original undertaking of the promisor, and not a promise to pay the debt of another within the statute, though resting in parol. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-53, 56; Dec. Dig. 33.] 2. CONTRACTS 187-PROMISE FOR BENEFIT OF THIRD PERSON-RIGHT OF ACTION. Where one promises to pay another's debt to a third person, such third person may sue directly upon the promise. - PAROL EVIDENCE Our own decisions in State v. Druxinman, 34 Wash. 275, 75 Pac. 814, and State v. Ray, 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. §§ 798-807; Dec. Dig. 187.] conclude that the information is sufficient. 3. EVIDENCE 441 [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 their motions for directed verdict of acquittal. These motions were made at the close of the state's evidence and at the close of all the evidence. The first was simply: "If the court please, at this time I move that the case be withdrawn from the jury and the jury instructed to return a verdict of not guilty on the evidence presented by the state." The second was no more specific. Neither was argued by counsel. It is plain from the record that this is not a case of no evidence. The evidence was ample to show the commission of the crime, though not very certain as to appellant's connection therewith. This is the particular defect now for the first time urged by counsel for appellant. Answering a similar contention in State v. Hyde, 22 Wash. 551, at page 564, 61 Pac. 719, at page 723, Judge White, speaking for the court, said: "This motion is a general one, and only challenges the general sufficiency of the evidence; that is, says, in effect, there is a total failure of evidence. Upon a motion of this kind, the only question raised is whether there is any evidence tending to prove the crime charged, not whether the evidence fails in some particular matters. The record fails to disclose that the objection to the evidence in the particular matter, as to the kind, amount, and value of money, was called to the attention of the court, and in a case of this kind the motion should direct the attention of the court and opposite counsel to the precise point made and the grounds there any additional promise for the benefit of a third large the terms and purpose of the written conperson which would tend to contradict or entract. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 20302047; Dec. Dig. 441; Contracts, Cent. Dig. § 1616.] 4. EVIDENCE 419-PAROL EVIDENCE-ADDITIONAL CONSIDERATION. consistent with that expressed in a written conThough an additional consideration not intract may usually be shown by parol evidence, it is not competent to ingraft parol conditions upon a contract complete and unambiguous on its face under the guise of proving an additional consideration. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. 419.] 5. EVIDENCE 419-PAROL EVIDENCE-DEED -CONSIDERATION. The primary purpose of a deed being to convey title, explanation of variation of the consideration expressed, short of proving that the deed was without consideration, does not tend to defeat its purpose and is admissible. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. 419.j 6. MORTGAGES 137-NATURE AND EFFECT.. In Washington a "mortgage" is not a conveyance with a defeasance as it was at common law, but is the mere written evidence of a contract of security, the prima facie purpose of which is to secure a debt. [Ed. Note. For other cases, see Mortgages, |