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the defendant, the running of the statute Lamoreux & Gay and Allen & Powell, for was not suspended by bis absence. This appellant. Trumbull & Trumbull and claim cannot be sustained. The language Louis Williams, for respondents. of tbe statute is too plain. See section 123, Code Proc. Besides, the remedy by attach- SCOTT, J. Plaintiff brought suit against ment is an extraordinary one, requiring the the defendants upon a certain promissory giving of a bond and the making of an affi- note. The first answer filed by the defenddavit, from which it must follow that the ants contained the following allegation: power to commence such an action is not "First. They admit making the note sued on, the equivalent of the opportunity to person- as set out in plaintiff's complaint.” An afally serve the defendant with process. firmative defense was also pleaded. After

It is next objected that a certain finding, the cause was called for trial, and while a by way of a special verdict, upon the trial jury was being impaneled, the defendants of the original action, avoids the judgment asked permission to amend their answer, so far as the defendant is concerned. But which was granted, whereupon an amended such special finding was not shown to have answer was filed, which made some change been so connected with the general verdict in the form of the affirmative defense, and as to warrant the contention. Besides, it is which also denied the execution of the note. probable that the sureties would not lose any The plaintiff was examined, and testified as rights on account of such finding, even al- follows: “I am the plaintiff in this cause. though the general verdict was inconsistent (Witness shown papers.) This is a promissory therewith. They were not responsible for note for the sum of $284.35. It appears to the results of the action so long as they de- be signed, ‘M. D. Gleason and S. Gleason.' fended in good faith.

I am the owner and holder of the note.” The other allegations of error grow out of Whereupon, the note was offered in evithe instructions given to the jury. Several dence, to which the defendants objected on exceptions were saved to these instructions, the grounds that it was incompetent, and and errors founded thereon have been ar- that the proper foundation had not been laid. gued in the brief of appellant. Most of them The objections were overruled, and the note go to the principles which are discussed in admitted in evidence. On cross-examination the brief under other heads, and have al- the plaintiff testified as follows: "I don't. ready been noticed, and for that reason no know that the defendants excuted the note, detailed consideration of the several excep- I was not present at the time. I gave mon. tions to the instructions is necessary. We ey to W. B. Gould, my cousin, to loan for shall content ourselves with saying that, up- me. He gave me this note, and told me he on a careful consideration of the instructions had loaned the money to the defendants. All as a whole, we think the law applicable to I know about the transaction is what he told the questions to be decided by the jury was

me."

The original answer was not put in properly stated, and that the exceptions to evidence, nor was the execution of the note the instructions given furnish no reason for proved, nor any further testimony given; the reversal of the judgment. And, for the but both parties rested, and the defendants reason that the jury were fully instructed as immediately moved the court to instruct the to the law of the case, defendant was not jury to bring in a verdict for the defendants, prejudiced by the action of the court in re- which motion was granted, and a verdict fusing to give the instructions requested by rendered accordingly. A motion for a new him.

trial was made within the statutory time, The judgment will be affirmed.

which was denied by the court, and this ap

peal was taken. DUNBAR, C. J., and SCOTT and STILES, It is contended by the appellant that he JJ., concur.

was misled on the trial of the cause as to

the denial of the execution of the note in the (10 Wasb. 476)

amended answer; that he did not notice the

same at the time, and supposed that said GOULD v. GLEASON et al.

answer only amended the atfirmative de(Supreme Court of Washington. Jan. 4, 1895.)

fense. The respondents contend that the PLEADINGS--AMENDMENT.

affidavits of the appellant showing these It is error to allow an amendment to the facts cannot be considered, for the reason answer in an action on a note denying its execution at the trial, without any showing therefor

that they were not made a part of the stateby defendant, the answer having admitted ment of facts. However this may be, the "making the uote sued on, as set out in plain- substance of the facts relied upon by the tiff's complaint."

appellant appears in the record otherwise. Appeal from superior court, Clallam coun- The original answer is in the files, and it ty; James G. McClinton, Judge.

was verified by one of the defendants in Action by Thomas Gould against M. D. person. It appears that the amended anGleason and S. Gleason. There was a ver- swer was filed upon the same day that the dict for defendants, and from an order deny

was tried, and that the amendment ing a new trial, and judgment thereupon for in question was granted without any showdefendants, plaintiff appeals. Reversed. ing therefor by the defendants. We think it

case

was an abuse of discretion upon the part of Portland, Or. It appears from the testimony the court to permit the answer to be amend- that the employés of said company had for ed to deny the execution of the note, after some months prior to May, 1891, greatly inthe cause had been called for trial, without terfered with the operation of said mines, some good ground having been shown to and had practically taken the management warrant it. While the point of the want of thereof from the company; that they had proof of the execution of the note is includ- prevented the company from hiring or dised in the grounds stated in the objection charging its workmen, and had obstructed which was made to its admission, yet the the business of operating the mines to such same was not clearly called to the attention an extent that in the opinion of the company of opposing counsel; the objection being up- it became necessary to either close them or on the grounds that it was incompetent, and get a new supply of laborers. Under these that the proper foundation had not been laid. circumstances the company procured in the The court, however, saw fit to overrule this East between four and five hundred colored at the time, but, after the testimony was miners, for the purpose of working the mines. concluded, directed the jury to bring in a It was evident from the situation that the forverdict for the defendants, and this was the mer employés of the company would resist, only defect in the proofs. Under the circum- or would most likely resist, any attempt to stances, we think the motion for a new trial put the new miners in their places at the should have been gianted. The court having mines; and to guard against this a number of permitted the amended answer denying the men from Thiel's Detective Agency were execution of the note to be filed, we shall not hired to protect the colored miners and the direct such denial to be stricken, under the company's property. A number of guns and present aspect of the case; but we reverse a few rounds of ammunition were also prothe judgment, and remand the cause for a cured and distributed to the colored miners new trial.

a short time before their arrival at Franklin,

in King County, the place where the injury DUNBAR, C. J., and STILES and HOYT,

subsequently occurred, and where some of JJ., concur.

said mines were located. Under these cir

cumstances the colored miners were taken (10 Wash. 479)

upon the company's property on May 16, THORBURN et al. v, SMITH et al.

1891, in the immediate vicinity or the mines,

and a substantial wire fence was erected (Supreme Court of Washington. Jan. 4, 1895.)

around the entrance thereto, and around the MASTER AND SERVANT -- SHOOTING BY EMPLOYELIABILITY OF EMPLOYER.

company's store and other property; the same In an action for damages, it appeared

being accomplished without any forcible rethat defendant, a mining corporation, having sistance from the former employés, who were had trouble with its employés, hired a number then living at Franklin, in the vicinity of the of negroes in their place, supplying them with

mines, and who continued to live there,-or, guns to protect themselves till they reached the mines. When the mines were reached, the

at least, the greater number of them, -until guns were placed in defendant's storehouse. after the injury to Mrs. Thorburn was inflictSometime afterwards the negroes, becoming ed, which occurred on Sunday, the 28th day frightened at shooting between some of their number and the ex employés, rushed in a body

of June, 1891. During the time intervening to defendant's store house, and seized the guns, between the arrival of the new miners and and, in the shooting that followed, plaintiff was said June 28th said miners were continually shot while in her own house. Held, that defendant was not liable.

subjected to annoyances, insults, and threats

from the former miners, who were pretty genAppeal from Superior court, King county; erally armed, and were organized into compaT. J. Humes, Judge.

nies, and were put through a military drill, Action by Robert Thorburn and Ellen Thor including target firing, from day to day, near burn against C. J. Smith and others. From

where the colored miners were at work, and a judgment of nonsuit, plaintiffs appeal. Af

in plain sight of them, presumably for the firmed.

purpose of intimidating them, and driving Thompson, Edsen & Humphries, for appel- them away from the mines. Upon the arlants. Andrew F. Burleigh, for respondents. rival of the colored miners at Franklin, the

guns and ammunition which had been previ. SCOTT, J. This is an action for dam- ously distributed among them were taken ages resulting from a gunshot wound inflict- from them, and stored in the company's storeed upon the person of Ellen Thorburn. At house. The guards, however, who were known the close of the testimony in chief, the court as the “Sullivan Guards," were maintained granted a motion for a nonsuit, whereupon and kept there for the purpose of protecting this appeal was taken.

the colored miners and the company's propThe Oregon Improvement Company is a erty, and to preserve the peace, and were corporation, and as a part of its business was under the control of a deputy sheriff of said operating certain coal mines in King county. county. About 1 or 2 o'clock on the morning C. J. Smith and T. B. Corey were officers of of said June 28th the respondent company said company, and M. C. Sullivan was su- took a train load of the colored miners, with perintendent of Thiel's Detective Agency of a number of the guards, from Franklin to Newcastle, where it was operating other they could well have done to prevent an outmines, and where there was a strike in prog- break, short of ceasing the operation of the ress, and on the evening of said day they mines and abandoning the company's properwere returned to Franklin. Previous to their ty. There is no warrant in the principles of return, during the day, a colored guard at a free government or of justice to hold the reFranklin had been shot, and was supposed to spondents liable for an injury inflicted under have been shot by some one of the former the circumstances proven, and the motion for miners. Owing to this, the already strained a nonsuit was rightly granted. situation had become greatly aggravated, and the colored miners were much excited, and DUNBAR, C. J., and HOYT and STILES, more or less terrorized. It appears from the JJ., concur. testimony that upon this Sunday in question most of the former miners were absent from their homes with their guns, and there was

(10 Wash. 486) an attempt on the part of some of them, or

LYNCH et al. v. RICHTER.1 members of their families, who were exam- (Supreme Court of Washington. Jan. 8, 1895.) ined, to account for such absence on the RATIFICATION OF ACTS OF AGENT - ELECTION BEground that they had gone hunting on said

TWEEN DEFENSES. day. As the train with the colored miners

1. Plaintiffs gave their son a power of at

torney to sell land, and allowed him to exercise and guards aforesaid neared the depot at

complete control over the property, but later Franklin on the return trip, a number of withdrew the power. The son subsequently conshots were fired. It is uncertain from the veyed the land under an ostensible power of attestimony whether they were first fired from torney from plaintiffs, who, though informed of

the act, took no steps to disavow it for three the train or at the train. However, this is

years, during which defendant made valuable not very material. At the commencement of improvements. Held, that plaintiffs ratified the the firing, the colored miners remaining at

act, and were estopped to assert title on the Franklin became intensely excited, and rush

ground that the power of attorney was a for

gery. ed in a body to the company's storehouse, 2. Where plaintiff failed to reguire defendseized a quantity of the guns and ammuni- ant to elect between inconsistent defenses, he tion stored there, and joined in the firing.

cannot raise the objection by a request for an

instruction. which then had become somewhat indiscriminate. During this time Mrs. Thorburn was

Appeal from superior court, King county; shot while in her and her husband's resi

R. Osborn, Judge. dence. She claims the respondents should be

Action by James Lynch and Mary Lynch held to answer in damages therefor on the

against Ottilie Richter to recover property following grounds: (1) That "they advised,

conveyed by one acting under a forged powcounseled, aided, and abetted the guards in

er of attorney. From a judgment for dewhat was done, furnished the arms and am- fendant, plaintiffs appeal. Affirmed. munition, and are equally guilty with the John W. Corson and James B. Howe, for principals;" (2) that “under the allegations of appellants. Thompson, Edsen & Humphries, the complaint and the proof upon the trial W. S. Relfe, and B. K. Knapp, for respondthe respondents are guilty, because they fur- ent. nished arms and ammunition to dissipated, drunken, irresponsible parties, who caused

HOYT, J. James T. Lynch and John F. the injury.”

Lynch were children of the plaintiffs, and After a somewhat lengthy examination of

resided in Seattle. Their parents resided the 200 pages of typewritten testimony con

in Oswego, N. Y. In 1883, John F. Lynch tained in the record, we find no testimony wrote plaintiffs, requesting them to send him therein supporting either of such grounds,

some money to invest in real estate. In nor have the appellants, in their brief, speci-compliance with his request, they sent to him fied any particular page or place in the rec- $750 for that purpose. At the same time ord where any such testimony, substantially

they sent an equal amount to his brother. or inferentially supporting the same, may be

The reason given for sending the money to found. It is apparent that at the time the

the brother was that they desired to treat injury occurred the colored miners remain

both sons alike. There was no evidence ing at Franklin were not engaged in their

tending to prove that the brother was not to duties as employés of the company, and it

use the money sent him as his own, but there clearly appears that the arms were not fur

was proof tending to show that the money sent nished them upon said occasion, but that they

John F. was to be invested in real estate for forcibly took possession thereof. And it also

the plaintiffs. It was invested by him in his appears that they had been repeatedly in

own name, in property the title to a part structed to avoid all difficulties with the for

of which is in controversy in this action. mer miners in every way, and to act only in

After the lapse of a considerable time he self-defense. Furthermore, the guards at said

made a deed thereof to his parents, and remines were under the control and direction

ceived from them a power of attorney auof a deputy sheriff of said county during the

thorizing him to sell the property. For some times in question, and it appears that the officers of the company did everything which 1 Rehearing denied.

reason, not fully disclosed by the record, the plaintiffs for his own convenience. It is true power of attorney was afterwards returned that plaintiffs testify that he was to invest to plaintiffs, and retained by them. In 1888 the $750 for them, but this testimony was the said John F. Lynch exhibited what pur- materially affected by the statement in refported to be a power of attorney from plain- erence to the transaction by which the $1,tiffs, and, on the strength thereof, sold the 500 was sent to the two sons,-$750 to each. property in question to one George Probst, However this may be, the entire proofs show under whom the defendant claims. At the that, until after the conveyance of the proptime the property was so sold, it was unim- erty in the name of the plaintiffs, the son proved, and so remained until purchased by had been trusted to do any and all things the defendant. She made improvements required in regard to it. They had given thereon of the value of $1,500 before she him full power to sell it, and had done nothhad any notice of the claim of plaintiffs, or ing to show the public, or one dealing with of any other fact which would lead her to the property, that such power had been resuppose that there was any defect in the ti- voked. This being so, their duty was imtle, which, from the records in the auditor's perative to take steps which, to the fullest office, appeared to be perfect. She relied up- extent, would warn the one to whom the son on such re ord, and supposed she had an had conveyed the property in their name, and absolute, indefeasible title in fee. Soon those holding under him, so soon as the fact after the sale by said John F. Lynch, the of the sale by him in their name became fact that he had made it, and in so doing known to them. This they did not do. It is had acted under what purported to be a pow- true that there was some testimony tending er of attorney from plaintiffs, was commu- to show that they wrote a letter to Probst, nicated to them. They took no steps to dis- but something more than this was required avow the act of their son under such pur- of them. They should not only have notified ported power of attorney until about the the purchaser, but should have seen that notime this suit was brought, in 1891.

tice was conveyed to the one in possession of The ground upon which possession of the the property, making improvements thereon. property was sought in this action was that Besides, the letter to Probst seems to have the power of attorney under which John F. been written as much with a view to procurLynch had acted was a forgery. The ques- ing immunity from criminal prosecution for tion is presented as to the right of the plain. the son as for the purpose of disavowing tiffs, under these circumstances, to now take his authority to make the sale. Under all advantage of the fact, if fact it was, of the the circumstances disclosed by the record, forgery of said power of attorney. It is we think that the plaintiffs should be held claimed that there was no such standing by

to have ratified the action of their son in and allowing improvements to be made upon forging the power of attorney, and should be the property to which they claimed title, by bound by his acts thereunder. If their acthe appellants, as to estop them from assert- tion was not such as to amount to a complete ing such title. It may be conceded that, if

ratification of the execution of the power of the title under which the property was held attorney, it was, when taken in connection by the one who had improved it had not pur- with the improvements upon the land, suffiported to have been derived from them, their cient to estop them from asserting title thereacts and acquiescence would not have been

to. sufficient to have estopped them from assert- What we have said shows that the result of ing title. But, under the circumstances of the trial was what equity and good conthis case, the duty of the owners was differ- science required; and, such being the case, ent. In the chain of title was a deed pur- we should be slow to reverse the judgment porting to have been made by their authori- on account of alleged technical errors. Howty, and they had knowledge of that fact. In ever, we are not satisfied that there were any such a case, equity and good conscience re- suc errors. The only ones urged in the quired prompt disavowance of the transac- brief of appellants grew out of the instruction. Especially was this so in view of the tions given the jury. Plaintiffs requested the fact that the one who purported to act by court to instruct the jury that the burden of their authority had at one time been fully proof was upon the defendant to show want invested with such authority. The fact that of title in the plaintiffs, and their first error he was their son, and therefore likely to be is founded upon the refusal of the court to charged with the trust, made it their duty to comply with such request. The ground of disavow his unauthorized act, done in their this request was that the affirmative defense name, at the earliest practicable time. Be- was inconsistent with the denials in the ansides, the circumstance of the sending to the swer. It is not necessary for us to deterother son, for his own use, of the same mine at this time what are inconsistent de. amount invested in this and the other prop- fenses, nor as to whether or not such deerty purchased by John F., in connection fenses are allowable under our statute, for with other facts testified to by one of the the reason that in our opinion the plaintiffs plaintiff's, tends strongly to show that the did not take the proper steps to make availpurchase by John F. was upon his own ac- able defects of that kind in the answer. If, count, and that he afterwards deeded it to in their opinion, inconsistent defenses bad been pleaded, they should have required an the note above referred to. It also appeared election on the part of the defendant as to that the defendant had never negotiated the which one of them he would rely upon. Not note, and that it was in his possession at the having done so, they cannot take advantage time the action was tried. Under these cirof such defects in the answer, by way of re cumstances, it is contended by the appellant quest for instructions. Another reason for that no action could be maintained to recovthe request was that the defendant had been er for want of delivery of the goods. Reallowed to open and close the proofs. No ob- spondents contend that the note was made jection to this course was made, and no rights and delivered in payment for the goods, could be gained or lost thereby. The ques- and that, being negotiable in form, the result tions raised upon the other instructions have was the same as though the payment had been substantially determined by what has been made in cash. been said. The objections on the part of the As to whether or not the execution and plaintiffs were founded upon their contention delivery of a negotiable promissory note has that there was no proof which authorized a the effect of discharging the obligation for finding of ratification or estoppel. In our which it is given always depends upou the view of the law, as applied to the proofs, | intention of the parties at the time. If it above set forth, the instructions complain. is agreed that the note shall be taken in payed of were correct in substance, though per- ment, then it will have the effect of satisfyhaps not in all respects as carefully worded ing the debt; and the rights of the parties as they should have been. The judgment will thereafter be determined upon the note, will be affirmed.

without any reference to the prior indebted

ness, excepting for the purpose of showing DUNBAR, C. J., and STILES and SCOTT,

the consideration for which the note was JJ., concur.

given. The respondents, appreciating this

principle, endeavored to show that it was the (10 Wash. 513)

intention of the parties at the time this note WALSH et al. v. COOPER.

was executed that it should be in full pay

ment. They testify that it was so given, (Supreme Court of Washington. Jan. 8, 1895.)

and this testimony would have force, were SALE-FAILURE TO DELIVER Goops.

it not for the fact that the receipt given by Plaintiff executed a negotiable note to defendant, and took a receipt in the form: “Re

the defendant, and accepted by them, negaceived from W. B., $350, one note for above,

tives the testimony, so far as it tended to in payment for goods to be delivered, or noté show that the giving of the note had the to be invalid.” Plaintiff paid no money on the same effect as would the payment of the note or for the goods, and sued defendant for the value of the goods not delivered. Held, that

money. That the note was, in a contingenit was not the intent of the parties that the cy, to be treated as payment, is in no way note should be valid or operate as a payment negatived by the receipt given; but that it until the goods were delivered, and, since defendant was not liable until such time, he can

was to become the property of the defendnot recover.

ant, to negotiate at will, and thus in subAppeal from superior court, Whatcom

stance take the place of cash. was directly county; John R. Winn, Judge.

negatived by such receipt. Therefrom it

clearly appears that it was the intention of Action by Frank Walsh, William Walsh,

the parties that the note should have no vaand Charles Walsh, partners as Walsh Bros.,

lidity until the goods were delivered. And against George A. Cooper. From a judg

while it is true that the form in which the ment for plaintiffs, defendant appeals. Reversed.

note was given made it possible for the de

fendant to put it in the hands of one who could Bruce & Brown, for appellant. Fairchild enforce it in accordance with its terms, such & Rawson, for respondents.

fact could have no influence in determining

the question as to the intention of the parties HOYT, J. Plaintiffs purchased of defend

in the giving and receiving of the note. It ant a quantity of goods, and, in considera- will not be presumed that the defendant, tion of such purchase, made and delivered to after having signed a receipt in the above him their promissory note, negotiable in form, would act in opposition to the intenform, for the sum of $350, due 90 days after tion of the parties as therein made manifest. date, and at the time received from the de- In our opinion, that part of the transaction fendant a receipt in substance as follows: evidenced in writing so clearly shows the “Received from Walsh Bros. $350, one note intention of the parties that the note should for above, in payment for goods to be deliv. only be valid upon the delivery of the goods ered, or note to be invalid." There was a that the bare statement in the testimony of failure to deliver all the goods purchased, the plaintiffs that it was given in payment and this action was prosecuted to recover therefor could not prevail against such writthe value of the goods which were not de- ten proofs, even if it was inconsistent therelivered. It appeared from the undisputed

with.

But we are not satisfied that there proofs that the plaintiffs bad never done was any absolute inconsistency. In a sense, anything towards the payment for any of such note was no doubt given in payment for the goods, excepting to execute and deliver the goods, and upon their delivery, and the

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