the defendant, the running of the statute was not suspended by his absence. This claim cannot be sustained. The language

of the statute is too plain. See section 123, Code Proc. Besides, the remedy by attachment is an extraordinary one, requiring the giving of a bond and the making of an affidavit, from which it must follow that the power to commence such an action is not the equivalent of the opportunity to personally serve the defendant with process.

It is next objected that a certain finding, by way of a special verdict, upon the trial of the original action, avoids the judgment so far as the defendant is concerned. But such special finding was not shown to have been so connected with the general verdict as to warrant the contention. Besides, it is probable that the sureties would not lose any rights on account of such finding, even although the general verdict was inconsistent therewith. They were not responsible for the results of the action so long as they defended in good faith.

The other allegations of error grow out of the instructions given to the jury. Several exceptions were saved to these instructions, and errors founded thereon have been argued in the brief of appellant. Most of them go to the principles which are discussed in the brief under other heads, and have already been noticed, and for that reason no detailed consideration of the several exceptions to the instructions is necessary. We shall content ourselves with saying that, upon a careful consideration of the instructions as a whole, we think the law applicable to the questions to be decided by the jury was properly stated, and that the exceptions to the instructions given furnish no reason for the reversal of the judgment. And, for the reason that the jury were fully instructed as to the law of the case, defendant was not prejudiced by the action of the court in refusing to give the instructions requested by him.

The judgment will be affirmed.

PLEADINGS-AMENDMENT.

It is error to allow an amendment to the answer in an action on a note denying its execution at the trial, without any showing therefor by defendant, the answer having admitted "making the note sued on, as set out in plaintiff's complaint.'

Appeal from superior court, Clallam county; James G. McClinton, Judge.

Action by Thomas Gould against M. D. Gleason and S. Gleason. There was a verdict for defendants, and from an order denying a new trial, and judgment thereupon for defendants, plaintiff appeals. Reversed.

Lamoreux & Gay and Allen & Powell, for appellant. Trumbull & Trumbull and Louis Williams, for respondents.

SCOTT, J. Plaintiff brought suit against the defendants upon a certain promissory note. The first answer filed by the defendants contained the following allegation: "First. They admit making the note sued on, as set out in plaintiff's complaint." An affirmative defense was also pleaded. After the cause was called for trial, and while a jury was being impaneled, the defendants asked permission to amend their answer, which was granted, whereupon an amended answer was filed, which made some change in the form of the affirmative defense, and which also denied the execution of the note. The plaintiff was examined, and testified as follows: "I am the plaintiff in this causę. (Witness shown papers.) This is a promissory note for the sum of $284.35. It appears to be signed, 'M. D. Gleason and S. Gleason.' I am the owner and holder of the note." Whereupon, the note was offered in evidence, to which the defendants objected on the grounds that it was incompetent, and that the proper foundation had not been laid. The objections were overruled, and the note admitted in evidence. On cross-examination the plaintiff testified as follows: "I don't. know that the defendants excuted the note. I was not present at the time. I gave money to W. B. Gould, my cousin, to loan for He gave me this note, and told me he had loaned the money to the defendants. All I know about the transaction is what he told me." The original answer was not put in evidence, nor was the execution of the note proved, nor any further testimony given; but both parties rested, and the defendants immediately moved the court to instruct the jury to bring in a verdict for the defendants, which motion was granted, and a verdict rendered accordingly. A motion for a new trial was made within the statutory time, which was denied by the court, and this appeal was taken.

me.

It is contended by the appellant that he was misled on the trial of the cause as to the denial of the execution of the note in the amended answer; that he did not notice the same at the time, and supposed that said answer only amended the affirmative defense. The respondents contend that the affidavits of the appellant showing these facts cannot be considered, for the reason that they were not made a part of the statement of facts. However this may be, the substance of the facts relied upon by the appellant appears in the record otherwise. The original answer is in the files, and it was verified by one of the defendants in person. It appears that the amended answer was filed upon the same day that the case was tried, and that the amendment in question was granted without any showing therefor by the defendants. We think it

was an abuse of discretion upon the part of the court to permit the answer to be amended to deny the execution of the note, after the cause had been called for trial, without some good ground having been shown to warrant it. While the point of the want of proof of the execution of the note is included in the grounds stated in the objection which was made to its admission, yet the same was not clearly called to the attention of opposing counsel; the objection being upon the grounds that it was incompetent, and that the proper foundation had not been laid. The court, however, saw fit to overrule this at the time, but, after the testimony was concluded, directed the jury to bring in a verdict for the defendants, and this was the only defect in the proofs. Under the circumstances, we think the motion for a new trial should have been granted. The court having permitted the amended answer denying the execution of the note to be filed, we shall not direct such denial to be stricken, under the present aspect of the case; but we reverse the judgment, and remand the cause for a new trial.

DUNBAR, C. J., and STILES and HOYT, JJ., concur.

(10 Wash. 479)

THORBURN et al. v. SMITH et al. (Supreme Court of Washington. Jan. 4, 1895.) MASTER AND SERVANT-SHOOTING BY EMPLOYELIABILITY OF EMPLOYER.

In an action for damages, it appeared that defendant, a mining corporation, having had trouble with its employés, hired a number of negroes in their place, supplying them with guns to protect themselves till they reached the mines. When the mines were reached, the guns were placed in defendant's storehouse. Sometime afterwards the negroes, becoming frightened at shooting between some of their number and the ex employés, rushed in a body to defendant's store house, and seized the guns, and, in the shooting that followed, plaintiff was shot while in her own house. Held, that defendant was not liable.

Appeal from Superior court, King county; T. J. Humes, Judge.

Action by Robert Thorburn and Ellen Thorburn against C. J. Smith and others. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

Thompson, Edsen & Humphries, for appellants. Andrew F. Burleigh, for respondents.

SCOTT, J. This is an action for damages resulting from a gunshot wound inflicted upon the person of Ellen Thorburn. At the close of the testimony in chief, the court granted a motion for a nonsuit, whereupon this appeal was taken.

The Oregon Improvement Company is a corporation, and as a part of its business was operating certain coal mines in King county. C. J. Smith and T. B. Corey were officers of said company, and M. C. Sullivan was superintendent of Thiel's Detective Agency of

Portland, Or. It appears from the testimony that the employés of said company had for some months prior to May, 1891, greatly interfered with the operation of said mines, and had practically taken the management thereof from the company; that they had prevented the company from hiring or discharging its workmen, and had obstructed the business of operating the mines to such an extent that in the opinion of the company it became necessary to either close them or get a new supply of laborers. Under these circumstances the company procured in the East between four and five hundred colored miners, for the purpose of working the mines. It was evident from the situation that the former employés of the company would resist, or would most likely resist, any attempt to put the new miners in their places at the mines; and to guard against this a number of men from Thiel's Detective Agency were hired to protect the colored miners and the company's property. A number of guns and a few rounds of ammunition were also procured and distributed to the colored miners a short time before their arrival at Franklin, in King County, the place where the injury subsequently occurred, and where some of said mines were located. Under these circumstances the colored miners were taken upon the company's property on May 16, 1891, in the immediate vicinity of the mines, and a substantial wire fence was erected around the entrance thereto, and around the company's store and other property; the same being accomplished without any forcible resistance from the former employés, who were then living at Franklin, in the vicinity of the mines, and who continued to live there,—or, at least, the greater number of them,-until after the injury to Mrs. Thorburn was inflicted, which occurred on Sunday, the 28th day of June, 1891. During the time intervening between the arrival of the new miners and said June 28th said miners were continually subjected to annoyances, insults, and threats from the former miners, who were pretty generally armed, and were organized into companies, and were put through a military drill, including target firing, from day to day, near where the colored miners were at work, and in plain sight of them, presumably for the purpose of intimidating them, and driving them away from the mines. Upon the arrival of the colored miners at Franklin, the guns and ammunition which had been previ ously distributed among them were taken from them, and stored in the company's storehouse. The guards, however, who were known as the "Sullivan Guards," were maintained and kept there for the purpose of protecting the colored miners and the company's property, and to preserve the peace, and were under the control of a deputy sheriff of said county. About 1 or 2 o'clock on the morning of said June 28th the respondent company took a train load of the colored miners, with a number of the guards, from Franklin to

Newcastle, where it was operating other mines, and where there was a strike in progress, and on the evening of said day they were returned to Franklin. Previous to their return, during the day, a colored guard at Franklin had been shot, and was supposed to have been shot by some one of the former miners. Owing to this, the already strained situation had become greatly aggravated, and the colored miners were much excited, and more or less terrorized. It appears from the testimony that upon this Sunday in question most of the former miners were absent from their homes with their guns, and there was an attempt on the part of some of them, or members of their families, who were examined, to account for such absence on the ground that they had gone hunting on said day. As the train with the colored miners and guards aforesaid neared the depot at Franklin on the return trip, a number of shots were fired. It is uncertain from the testimony whether they were first fired from the train or at the train. However, this is not very material. At the commencement of the firing, the colored miners remaining at Franklin became intensely excited, and rushed in a body to the company's storehouse, seized a quantity of the guns and ammunition stored there, and joined in the firing. which then had become somewhat indiscriminate. During this time Mrs. Thorburn was shot while in her and her husband's residence. She claims the respondents should be held to answer in damages therefor on the following grounds: (1) That "they advised, counseled, aided, and abetted the guards in what was done, furnished the arms and ammunition, and are equally guilty with the principals;" (2) that "under the allegations of the complaint and the proof upon the trial the respondents are guilty, because they furnished arms and ammunition to dissipated, drunken, irresponsible parties, who caused the injury."

After a somewhat lengthy examination of the 200 pages of typewritten testimony contained in the record, we find no testimony therein supporting either of such grounds, nor have the appellants, in their brief, specified any particular page or place in the record where any such testimony, substantially or inferentially supporting the same, may be found. It is apparent that at the time the injury occurred the colored miners remaining at Franklin were not engaged in their duties as employés of the company, and it clearly appears that the arms were not furnished them upon said occasion, but that they forcibly took possession thereof. And it also appears that they had been repeatedly instructed to avoid all difficulties with the former miners in every way, and to act only in self-defense. Furthermore, the guards at said mines were under the control and direction of a deputy sheriff of said county during the times in question, and it appears that the officers of the company did everything which

they could well have done to prevent an outbreak, short of ceasing the operation of the mines and abandoning the company's property. There is no warrant in the principles of a free government or of justice to hold the respondents liable for an injury inflicted under the circumstances proven, and the motion for a nonsuit was rightly granted.

DUNBAR, C. J., and HOYT and STILES, JJ., concur.

(10 Wash. 486)

Jan. 8, 1895.)

LYNCH et al. v. RICHTER.1 (Supreme Court of Washington. RATIFICATION OF ACTS OF AGENT - ELECTION BETWEEN DEFENSES.

1. Plaintiffs gave their son a power of attorney to sell land, and allowed him to exercise complete control over the property, but later withdrew the power. The son subsequently conveyed the land under an ostensible power of attorney from plaintiffs, who, though informed of the act, took no steps to disavow it for three years, during which defendant made valuable improvements. Held, that plaintiffs ratified the act, and were estopped to assert title on the ground that the power of attorney was a forgery.

2. Where plaintiff failed to require defendant to elect between inconsistent defenses, he cannot raise the objection by a request for an instruction.

Appeal from superior court, King county; R. Osborn, Judge.

Action by James Lynch and Mary Lynch against Ottilie Richter to recover property conveyed by one acting under a forged power of attorney. From a judgment for defendant, plaintiffs appeal. Affirmed.

John W. Corson and James B. Howe, for appellants. Thompson, Edsen & Humphries, W. S. Relfe, and B. K. Knapp, for respondent.

HOYT, J. James T. Lynch and John F. Lynch were children of the plaintiffs, and resided in Seattle. Their parents resided in Oswego, N. Y. In 1883, John F. Lynch wrote plaintiffs, requesting them to send him some money to invest in real estate. In compliance with his request, they sent to him $750 for that purpose. At the same time they sent an equal amount to his brother. The reason given for sending the money to the brother was that they desired to treat both sons alike. There was no evidence tending to prove that the brother was not to use the money sent him as his own, but there was proof tending to show that the money sent John F. was to be invested in real estate for the plaintiffs. It was invested by him in his own name, in property the title to a part of which is in controversy in this action. After the lapse of a considerable time he made a deed thereof to his parents, and received from them a power of attorney authorizing him to sell the property. For some

1 Rehearing denied.

reason, not fully disclosed by the record, the power of attorney was afterwards returned to plaintiffs, and retained by them. In 1888 the said John F. Lynch exhibited what purported to be a power of attorney from plaintiffs, and, on the strength thereof, sold the property in question to one George Probst, under whom the defendant claims. At the time the property was so sold, it was unimproved, and so remained until purchased by the defendant. She made improvements thereon of the value of $1,500 before she had any notice of the claim of plaintiffs, or of any other fact which would lead her to suppose that there was any defect in the title, which, from the records in the auditor's office, appeared to be perfect. She relied upon such record, and supposed she had an absolute, indefeasible title in fee. Soon after the sale by said John F. Lynch, the fact that he had made it, and in so doing had acted under what purported to be a power of attorney from plaintiffs, was communicated to them. They took no steps to disavow the act of their son under such purported power of attorney until about the time this suit was brought, in 1891.

The ground upon which possession of the property was sought in this action was that the power of attorney under which John F. Lynch had acted was a forgery. The question is presented as to the right of the plaintiffs, under these circumstances, to now take advantage of the fact, if fact it was, of the forgery of said power of attorney. It is claimed that there was no such standing by and allowing improvements to be made upon the property to which they claimed title, by the appellants, as to estop them from asserting such title. It may be conceded that, if the title under which the property was held by the one who had improved it had not purported to have been derived from them, their acts and acquiescence would not have been sufficient to have estopped them from asserting title. But, under the circumstances of this case, the duty of the owners was different. In the chain of title was a deed purporting to have been made by their authority, and they had knowledge of that fact. such a case, equity and good conscience required prompt disavowance of the transaction. Especially was this so in view of the fact that the one who purported to act by their authority had at one time been fully invested with such authority. The fact that he was their son, and therefore likely to be charged with the trust, made it their duty to disavow his unauthorized act, done in their name, at the earliest practicable time. Besides, the circumstance of the sending to the other son, for his own use, of the same amount invested in this and the other property purchased by John F., in connection with other facts testified to by one of the plaintiffs, tends strongly to show that the purchase by John F. was upon his own account, and that he afterwards deeded it to

In

plaintiffs for his own convenience. It is true that plaintiffs testify that he was to invest the $750 for them, but this testimony was materially affected by the statement in reference to the transaction by which the $1,500 was sent to the two sons,-$750 to each. However this may be, the entire proofs show that, until after the conveyance of the property in the name of the plaintiffs, the son had been trusted to do any and all things required in regard to it. They had given him full power to sell it, and had done nothing to show the public, or one dealing with the property, that such power had been revoked. This being so, their duty was imperative to take steps which, to the fullest extent, would warn the one to whom the son had conveyed the property in their name, and those holding under him, so soon as the fact of the sale by him in their name became known to them. This they did not do. It is true that there was some testimony tending to show that they wrote a letter to Probst, but something more than this was required of them. They should not only have notified the purchaser, but should have seen that notice was conveyed to the one in possession of the property, making improvements thereon. Besides, the letter to Probst seems to have been written as much with a view to procuring immunity from criminal prosecution for the son as for the purpose of disavowing his authority to make the sale. Under all the circumstances disclosed by the record, we think that the plaintiffs should be held to have ratified the action of their son in forging the power of attorney, and should be bound by his acts thereunder. If their action was not such as to amount to a complete ratification of the execution of the power of attorney, it was, when taken in connection with the improvements upon the land, sufficient to estop them from asserting title thereto.

What we have said shows that the result of the trial was what equity and good conscience required; and, such being the case, we should be slow to reverse the judgment on account of alleged technical errors. However, we are not satisfied that there were any such errors. The only ones urged in the brief of appellants grew out of the instructions given the jury. Plaintiffs requested the court to instruct the jury that the burden of proof was upon the defendant to show want of title in the plaintiffs, and their first error is founded upon the refusal of the court to comply with such request. The ground of this request was that the affirmative defense was inconsistent with the denials in the answer. It is not necessary for us to determine at this time what are inconsistent defenses, nor as to whether or not such defenses are allowable under our statute, for the reason that in our opinion the plaintiffs did not take the proper steps to make available defects of that kind in the answer. If, in their opinion, inconsistent defenses had

been pleaded, they should have required an election on the part of the defendant as to which one of them he would rely upon. Not having done so, they cannot take advantage of such defects in the answer, by way of re quest for instructions. Another reason for the request was that the defendant had been allowed to open and close the proofs. No objection to this course was made, and no rights could be gained or lost thereby. The questions raised upon the other instructions have been substantially determined by what has been said. The objections on the part of the plaintiffs were founded upon their contention that there was no proof which authorized a finding of ratification or estoppel. In our view of the law, as applied to the proofs, above set forth, the instructions complained of were correct in substance, though perhaps not in all respects as carefully worded as they should have been. The judgment will be affirmed.

DUNBAR, C. J., and STILES and SCOTT, JJ., concur.

(10 Wash. 513)

WALSH et al. v. COOPER. (Supreme Court of Washington.

Jan. 8, 1895.) SALE-FAILURE TO DELIVER GOODS. Plaintiff executed a negotiable note to defendant, and took a receipt in the form: "Received from W. B., $350, one note for above, in payment for goods to be delivered, or note to be invalid." Plaintiff paid no money on the note or for the goods, and sued defendant for the value of the goods not delivered. Held, that it was not the intent of the parties that the note should be valid or operate as a payment until the goods were delivered, and, since defendant was not liable until such time, he cannot recover.

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by Frank Walsh, William Walsh, and Charles Walsh, partners as Walsh Bros., against George A. Cooper. From a judgment for plaintiffs, defendant appeals. Reversed.

Bruce & Brown, for appellant. Fairchild & Rawson, for respondents.

HOYT, J. Plaintiffs purchased of defendant a quantity of goods, and. in consideration of such purchase, made and delivered to him their promissory note, negotiable in form, for the sum of $350, due 90 days after date, and at the time received from the defendant a receipt in substance as follows: "Received from Walsh Bros. $350, one note for above, in payment for goods to be delivered, or note to be invalid." There was a failure to deliver all the goods purchased, and this action was prosecuted to recover the value of the goods which were not delivered. It appeared from the undisputed proofs that the plaintiffs had never done anything towards the payment for any of the goods, excepting to execute and deliver

the note above referred to. It also appeared that the defendant had never negotiated the note, and that it was in his possession at the time the action was tried. Under these circumstances, it is contended by the appellant that no action could be maintained to recover for want of delivery of the goods. Respondents contend that the note was made and delivered in payment for the goods, and that, being negotiable in form, the result was the same as though the payment had been made in cash.

As to whether or not the execution and delivery of a negotiable promissory note has the effect of discharging the obligation for which it is given always depends upon the intention of the parties at the time. If it is agreed that the note shall be taken in payment, then it will have the effect of satisfying the debt; and the rights of the parties will thereafter be determined upon the note, without any reference to the prior indebtedness, excepting for the purpose of showing the consideration for which the note was given. The respondents, appreciating this principle, endeavored to show that it was the intention of the parties at the time this note was executed that it should be in full payment. They testify that it was so given, and this testimony would have force, were it not for the fact that the receipt given by the defendant, and accepted by them, negatives the testimony, so far as it tended to show that the giving of the note had the same effect as would the payment of the money. That the note was, in a contingency, to be treated as payment. is in no way negatived by the receipt given; but that it was to become the property of the defendant, to negotiate at will, and thus in substance take the place of cash, was directly negatived by such receipt. Therefrom it clearly appears that it was the intention of the parties that the note should have no validity until the goods were delivered. And while it is true that the form in which the note was given made it possible for the defendant to put it in the hands of one who could enforce it in accordance with its terms, such fact could have no influence in determining the question as to the intention of the parties in the giving and receiving of the note. It will not be presumed that the defendant, after having signed a receipt in the above form, would act in opposition to the intention of the parties as therein made manifest. In our opinion, that part of the transaction evidenced in writing so clearly shows the intention of the parties that the note should only be valid upon the delivery of the goods that the bare statement in the testimony of the plaintiffs that it was given in payment therefor could not prevail against such written proofs, even if it was inconsistent therewith. But we are not satisfied that there was any absolute inconsistency. In a sense, such note was no doubt given in payment for the goods, and upon their delivery, and the