validity of the note, under the terms of the agreement, having been thus fully established, it was no doubt the intent that the entire transaction should be thereafter evidenced by the note, and the rights and obligations of the parties dependent thereon. The note having been given under these circumstances, if there had been no delivery of the goods there could have been no recovery by the defendant on the note, and the plaintiffs, on account of its invalidity, would not have been in any way injured by having given it, and for that reason could maintain no action for the value of the goods not delivered. And, since these circumstances would prevent a recovery for failure to deliver all of the goods, they would also prevent a recovery for failure to deliver a part. Judgment will be reversed, and the cause remanded for a new trial.

1. A charge that contributory negligence, to avail defendant as a defense, must be established by a preponderance of the evidence, is cured by a subsequent charge that, "if you find from a preponderance of the whole evidence that the plaintiff was guilty of contributory negligence, you must find for defendant."

2. In an action for personal injuries caused by an electric street car, which was suddenly backed up on a track on which plaintiff was walking, while making a transfer to the car, it was not error to charge that it was defendant's duty to have an employé on the lookout at the rear end of the car while it was moving backwards.

3. While plaintiff was walking up the track to overtake an electric car waiting for passengers (including plaintiff) transferred from a cable line, the car was suddenly backed up, and, there being no one on the rear end on the lookout, plaintiff was run down. It was the custom of the electric car to wait for such transferred passengers at any place within a block from the junction with the cable line, but not to back up to the junction for such passengers. Held, that in walking up the track plaintiff was not, as a matter of law, guilty of contributory negligence, although she neither looked nor listened, and though she heard the signal to back the car.

4. A charge permitting a recovery for such pain as plaintiff "will be likely to endure" is cured by a charge limiting the recovery to such impairment of health as has resulted, and will naturally result, from the injuries sustained.

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

Action by June R. Cameron against the Union Trunk Line to recover for personal injury. From a judgment for plaintiff, defendant appeals. Affirmed.

Thompson, Edsen & Humphries, for appellant. Stratton, Lewis & Gilman and A. D. Warner, for respondent.

STILES, J. The appellant is a corporation which operates lines of street railway in the city of Seattle. One of its lines is operated by cable, along James street to Broadway, where passengers are transferred, without additional fare, to a line of electric cars running to the Walla Walla addition. The two lines are not run so as to make close connection, but when a cable car is coming up to the Broadway junction, and an electric car is leaving for Walla Walla, the custom is for the cable conductor, if he has passengers for the Walla Walla line, to signal by the ringing of a bell, and if the electric car has not gone beyond Bailey street, which is one block from the junction, it stops and waits for the cable passengers to catch up with it. The respondent, a woman of 21 years, lived on the line to Walla Walla, had ridden over both lines a great many times, and was accustomed to the method of transfer stated above, when on the 5th day of February, 1893, she, with her father, took a cable car "down town" for her home. As the car she was riding in neared Broadway, an electric car was seen leaving the junction for Walla Walla, and the usual signal was given to stop it. The signal was heard, and the car stopped at a point 150 or 200 feet away from the junction. At this time snow had been falling to a considerable depth, so that, to operate its cars, the appellant had been compelled to bank up the snow on either side of its track, from time to time, until the track represented a channel cut through banks of snow four or five feet in height. These banks were just far enough apart to permit of the passage of the cars, and of course any one attempting to reach a car at the point where the one in question was stopped must pass between the snow walls. As soon as they alighted, the passengers from the cable car started to overtake the electric car, and some of them reached it before it moved, and climbed aboard. Respondent, followed closely by her father, had almost reached the car, when it was started backward towards her, which frightened her, and she turned to escape. But, encountering her father, she either fell, or he threw her, to one side, so that, the car coming upon her at that moment, she was caught between it and the snow bank, and held there until the car had nearly passed her. She suffered no outward physical injury beyond a slight bruise, but she complains that the shock consequent upon her fright has shattered her nervous system, and rendered her unfit for her employment, which was that of a teacher of music. The electric car was one having two compartments for passengers,-the forward one closed, and the rear one open. The motorman's station was in front of the closed end of the car; that of the conductor, when not otherwise employed, at the rear of the open end. It was towards the open end that the passengers from the cable car approached. It seems that there was some understanding

between the conductors on the two cars that, because of the snow, the electric car would be backed up to the junction from the place where it stopped, and the conductor of the cable car says that he called to his passengers not to hurry, and that the electric car would back up to the junction for them. But the evidence on the other side is that his announcement was not heard. On the electric car some confusion occurred. The conductor

rang one bell for the car to stop, and it stopped. Then he rang three bells, which was the signal to back from a standstill, but the motorman understood it to mean "Go ahead," and he started the car ahead a few feet. Then came another signal to stop, which was obeyed. The conductor then went to the front end of the car, and spoke to the motorman, directing him to back up, which he did at once, probably getting the car under good speed before the conductor had time to reach his place at the rear of the car. There is the usual confusion in the evidence about these bells. Some witnesses heard them,some in one way, and some in another. The respondent did not hear them at all, and even the appellant's employés disagree as to how they rang, and what bells were used, there being a gong bell and a set of electric bells. Bells or no bells, however, we think it clear that the accident would not have happened if the car had not been started backward before the conductor could reach a place on the car where he could see whether there was danger of running into the respondent. The whole transaction undoubtedly occurred in a very short space of time, for, at the most, it could have taken respondent scarcely a minute to walk from one car to the other.

The court gave 28 instructions to the jury, covering 16 typewritten pages, about half of them at the request of the plaintiff, and half at the request of defendant. There was not a very close application of those given for the plaintiff to the issues as presented by the evidence, but the objectionable features were all covered by the requests of the defendant, which were given last and at greater length. For example, the seventh charge was that contributory negligence was a defense, and, to avail the defendant as such, it must be established by a preponderance of the evidence. Appellant says that the language used left the jury to suppose that it must furnish the evidence of contribution, and that, unless it was found to have done so, this defense was not to be considered. Of course, it is the rule that if the case, whether as presented by one side or the other, shows contribution, the defense is established, and is available. But the twelfth charge was: "If you find from a preponderance of the whole evidence that the plaintiff was guilty of negligence which contributed to her injury, then your verdict must be for the defendant;" and no less than four or five of the succeeding charges given at request of the appellant were devoted to an elaboration of this proposition as apv.39p.no.1-9

plied to the evidence in the case. The vice of the charge, if any, was rather in giving the same thing over and over again, in varied forms, at the request of both parties, to the almost certain danger of confusing the jury. It is next to impossible, in the case of a charge of this kind, to pick out a paragraph and pronounce it reversible error, since in so many other paragraphs the error may be said to have been cured. On the whole, we cannot say that a jury of fairly intelligent men would be likely to mistake the real issues to be submitted to them in this case.

When the court told the jury that it was the duty of the appellant to have an employé at the end of its car, it committed no error, under the circumstances. The regu

lar progress of this car was forward, not backward; and in the streets of a city there is even greater danger of accident from a car moving backward than forward, since the public are accustomed to avoid cars moving ahead in the ordinary way, but do not expect them to be reversed. Undoubtedly, the negligence of the appellant lay in the fact that the motorman, without waiting for the conductor to return to the rear of the car, which was suddenly converted into the front, started the car back, at its ordinary speed; and, no one being there to give warning or stop the car, the respondent was taken by surprise, and run down, before she had time to consider any means of escape. Considering the fact that the jury had before it competent evidence of the almost universal method of transferring passengers at this point, we think it no error to hold it to be the duty of the carrier to maintain a lookout when, upon an exceptional occasion, it proposed to back up its car, with knowledge that there were passengers to be transferred, and who were likely to proceed towards the electric car in the usual way. For substantially the same reasons, we cannot say that respondent's act in walking towards the car, even without looking or listening, was negligence on her part, which should deprive her of a recovery. The question of the superior rights of street cars in the streets has no place here, because the method of transfer in vogue was a license to the respondent to rely upon the belief that the car would remain where it stopped until she could catch up with it; and, even if she had heard the bells which signaled for a backward movement of the car, she still would have had the right to expect that the change in direction would be accomplished with due care, some one being on the lookout that nobody was run over. Under the circumstances, it was no more negligence on respondent's part for her to walk along the track towards the car than it is for an intending passenger upon any railroad car to cross an intervening track, that being the usual method of approach.

We find no legal reason for interfering with the verdict on account of the character of the injury or the amount of the verdict. Com

plaint is made that the court permitted a recovery for such pain and suffering of body, if any, as the jury might believe she had endured, "and will be likely to endure." Damages for future suffering must be confined to such as the evidence renders it reasonably certain will result from the injury. Curtis v. Railroad Co., 18 N. Y. 534; Fry v. Railroad Co., 45 Iowa, 416. Immediately following the objectionable clause, and as an enlargement of it, the jury was told that it might allow "such sum as would compensate her for the impairment of her health for such time as you may believe, from the evidence, it has been and will be impaired by reason of her injuries, and in such sum as will compensate the plaintiff for such physical injury received by the plaintiff, and the ordinary and natural result as a consequence of the same." We think the jury could not be misled under the qualification given. The seventh and eleventh charges requested by appellant were given in substance in other charges requested by it, so far as they were applicable to the evidence.

Finding no uncured error, the judgment is affirmed.

1. A quitclaim deed conveys whatever title the grantor had in the land.

2. A deed to "Abner Dunn Deceased Estate" is void for want of a grantee.

3. Evidence that there was a general understanding in the community that land was the property of a certain person is not sufficient to support a title by adverse possession.

4. Where, in ejectment, judgment is rendered for plaintiff, and it is shown that the improvements placed by defendant on the land are equal to its rental value while defendant was in possession, defendant is entitled to recover from plaintiff all taxes paid by him, and to have the amount thereof charged on the land.

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

Action by Elizabeth McInerney against Jacob Beck and Mary Beck. From a verdict for defendant, and judgment thereon, plaintiff appeals. Reversed.

Bruce, Brown & Cleveland, for appellant. J. J. Weisenberger and J. R. Crites, for respondents.

DUNBAR, C. J. This was an action in ejectment, brought by the appellant, Elizabeth McInerney, against the respondents, Jacob Beck and Mary Beck, claiming that the appellant is the owner of and entitled to a certain lot or parcel of ground situated in the

1 Rehearing pending.

city of Whatcom. Her claim is based on the fact that her husband purchased this property and received a deed to it during their coverture; that her husband is dead, and that she is the only heir; that he left no issue, that is, at the time he died he had no children living, and also at the time of his death he had no parents living; and in the amended complaint alleges that there are no debts due from the deceased or his estate, and asks for the possession of the property. The answer of the defendants is a denial that Mrs. McInerney is the owner of the land, or that she is the only heir of John McInerney; and sets up title in the name of Mary Beck, claiming that the said Mary Beck has been in open, adverse, and notorious possession of said property, she and her grantors, for more than 20 years prior to the commencement of the action. The answer admits that John McInerney was the owner at one time of this property; that he held the same under a deed; but claims that any right or interest that he might have had in this property has been barred by the statute of limitations. Outside of the adverse possession, defendants claim through a tax deed to one Abner Dunn, from the administrator of the estate of Dunn to one Pierson, from Pierson to Whatcom county, and from Whatcom county to the respondents. On these issues the case went to trial, and the jury found that the appellant at no time had been, and was not, entitled to the possession of the land in dispute. Judgment was rendered in accordance with the verdict, and the case was brought here on appeal.

We do not comprehend how this verdict could have been reached under the testimony in this case. The plaintiff proved a straight title from the United States to Russell V. Peabody, from Russell V. Peabody to John E. Peabody, and a power of attorney from John E. Peabody to Russell V. Peabody, a deed from John E. Peabody to A. M. Poe, and a deed from A. M. Poe to John McInerney. Some objection was made by the respondents to the introduction of the deed from Poe because it was a quitclaim deed. This objection is not at all tenable. A quitclaim deed is as good as any other deed if the grantor had the title to convey, and, if he did not have the title to convey, as between other claimants, the warranty would not amount to anything. There is no question but that proof was absolutely convincing that the appellant was the wife of McInerney, and that McInerney was dead, and that there were no other heirs of McInerney living. Nor do we see anything inconsistent in the statements made by Mrs. McInerney in the proof of her title. It is true that it is only the testimony of one witness, but it is straightforward, consistent, and absolutely undisputed, and a jury would have no right to disregard it. The only questions left, then, for the determination of the jury were two, the first of which is whether the tax deed

under which respondents claim was sufficient to convey title. We think that, under the ruling of this court in Hurd v. Brisner, 3 Wash. 1, 28 Pac. 371, the deed was absolutely void. But, in addition to this objection, there was no grantee to this deed. The deed ran to "Abner Dunn Deceased Estate." The deed should have been made to the executor or administrator, as the case might be, of the estate of Abner Dunn, deceased. The execu tor or administrator is the legal representative of the deceased, and the estate is something that cannot be recognized at all as a party to a contract. We think it is hardly worth while to pursue this question further. The only remaining question, under the issues in this case, is, had the respondents or their grantors been in possession of the land in dispute for 20 years prior to the commencement of this action? If they had, and their possession had been open, notorious, and adverse to the interests of the appellant, then she would be barred from prosecuting this claim. But there is no evidence in this case to sustain the verdict upon this hypothesis. It is not a case of conflict of testimony, but upon the affirmative testimony of the defendants the possession was not proven. All that was proven was a general understanding in the community that the property in dispute was the property of Pierson. There was no testimony that he had ever exercised any acts of ownership over it whatever. It is true that in the early days in the history of this country, and especially in that locality, it would not have taken a great deal to have established possession. But there must be something more than the mere fact that a person went and looked at a particular piece of land. This is about all that we can find in this record, and it is absolutely insufficient to sustain the claim of adverse possession. For this reason the judgment must be reversed, and the cause remanded, with instructions to grant the prayer of the complaint; with this modification, however: It appears from this record that these respondents bought this land in good faith, went on it, made a bona fide residence, and in good faith made valuable improvements to the extent of several thousand dollars; that the property has been thereby benefited; that they have paid quite a large sum in taxes and for the improvement of streets. And we do not think it would be equitable to allow the appellant to stand back, and not assert her claim, while all these improvements were being made for her benefit, and now demand possession of the land, with its value thus enhanced, without recompensing the respondents in this particular. And, in the absence of a statute, we should be inclined to allow the defendants the value of the improvements over and above the rental value during the time of the detention of the land as a counterclaim, but section 534 of the Code of Procedure seems to indicate that the value of the improvements shall only be allowed

as a set-off against damages for detention, and that such damages can only be recovered for withholding the property for the term of six years next preceding the commencement of the action. This restriction, however, does not apply to taxes or streetgrade assessments. We are fully convinced from the record that the improvements placed upon the land are at least equal to the rental value of the same, but, as the case was decided on the theory that the respondents were entitled to the possession of the land, there is no finding on the amount of taxes or street grade assessments paid by the respondents since they have been in possession of the same. So that, upon the return of this case, the court will proceed to investigate and determine that question, and the amount so found to have been paid by the respondents, with legal interest from the date of such payments, shall be declared to be a lien on the land for its payment; and, if the same is not paid within 90 days from the judgment so declaring it to be a lien, in the court below, the respondents will be entitled to sell the land for the payment of the same.

1. Where a contractor's bid for the construction of a building is accepted, and the terms of the building contract are left to be stated in a writing subsequently entered into by the parties, that writing is the highest evidence of the terms of the building contract.

2. In answer to a complaint for a balance due for constructing a building under an express contract, defendants set up a written instrument, which they alleged constituted the contract. Plaintiff denied such instrument, as not being signed by all the parties, and testified that the contract consisted of his bid for the job and defendants' acceptance of it. The evidence was that plaintiff submitted to the control of the architect named in the writing, and received from him several certificates of sums due for work done, as the writing provided; that the writing was referred to in those certificates, and that they called for 90 per cent. of the contract price of the job,-that being the percentage mentioned in the writing to be paid as the work progressed; that every payment made to plaintiff was by check payable jointly to him and his surety named in the writing; that he accepted the appraisement of the architect made thereunder for extra work; that he objected to paying certain charges upon the sole ground that he was not liable therefor under the writing; and that when a dispute arose in the final settlement he did not deny that the writing constituted the contract, but proposed arbitration as therein provided. Held, that a verdict based on the assumption that the terms of the building contract consisted of nothing but plaintiff's bid and defendants' acceptance was against the weight of the evidence.

3. The defendants in an action on a building contract alleged that they gave plaintiff a check in full payment of all claim under the

contract, and a statement to that effect appeared on the face of the check. Plaintiff denied that he so accepted the check, and testified that the defendant who gave it to him told him that he would receive a further payment; that the supervising architect advised plaintiff to accept the check, saying that defendant would pay him in full afterwards; and the architect corroborated the latter testimony. Held, that the question whether the check was given and accepted as full satisfaction of all claim under the contract was for the jury.

4. Where the building contract declared on provided that claim for extra work should be submitted to the supervising architect for decision, and the evidence clearly showed that such claim was submitted to the architect, and his award accepted by both parties, it was error to submit the question of the value of said extra work to the jury.

5. In an action on a building contract, which provided that the contractor should keep the building insured, it was error to submit to the jury the question whether the contractor was liable for the insurance premiums.

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

Action by John Megrath against David Gilmore and others. From a judgment for plaintiff, defendants appeal. Reversed.

Burke, Shepard & Woods, for appellants. Stratton, Lewis & Gilman and Carr & Preston, for respondent.

STILES, J. David Gilmore and William H. Kirkman, in 1889, caused plans and specifications to be prepared for a building to be erected on their joint property in the city of Seattle, and thereupon invited bids from contractors for the erection of the building. Two bids were received,-one, that of respondent, for $98,000, and another, that of a third party, for $96,840. Gilmore and Kirkman desired to favor respondent, and proposed that they would accept his bid, but that, as they did not wish to appear to reflect on the lower bidder in any way, they would make their principal contract for the building, which was to be in writing, at $96,000, and give respondent a separate obligation for $2,000. Thus far the transaction occurred between Gilmore and respondent only, Kirkman residing in Walla Walla, and not being present. Gilmore had full authority from Kirkman to make any contract he saw fit. Within a day or two after the agreement as to the bid, the architect who had prepared the plans and specifications filled up one of his blank contracts, in duplicate, with the names of respondent and John Collins, as parties of the first part, and Gilmore and Kirkman, parties of the second part, and otherwise prepared it for signing. Respondent and Gilmore met at the architect's office to sign the contract, which was dated March 8, 1891, on that day, whereupon respondent stated that one Redward was to join him in the contract, and his name was inserted as a party of the first part. Respondent, Collins, and Gilmore signed both copies of the instrument, but Redward refused to sign, and nothing further was said about him. Some question was made as to

whether Kirkman's name should be appended, but for some reason it was omitted. One side of this case maintains that his signature was never waived; while the other asserts that it was then and there agreed, upon the suggestion of the architect, that it was not necessary that Kirkman should sign, because Gilmore had full authority from him to act for them both in all matters pertaining to the proposed building. Respondent took one of the copies, and the architect retained the other for Gilmore. Collins was merely a surety for respondent, as it is now made to appear. This writing contained the usual articles found in such agreements, 12 in number, each set rth with much detail. The date for the completion of the building was fixed at October 10, 1889, for the lower portion, and at November 10th for the upper portion, with a provision for demurrage at the rate of $25 per day for each uncompleted portion beyond the dates named. Provisions were made that the architect should be the sole arbiter of certain described matters should they come into dispute, and, in case of any other dispute, it should be settled by another method of arbitration, provided for. Extra work was to be settled for as determined by the architect, if satisfactory to both parties, but otherwise by the second method of arbitration. The contractor was required to procure a builder's insurance policy for the benefit of Gilmore and Kirkman, as security for such money as they might advance. Payments were to be made every two weeks after the commencement of work, to the extent of 90 per cent. of the work performed, upon architect's certificates; final payment within 90 days after completion. The time of completion was not to be extended by reason of extra work ordered. The contract price was stated to be $96,000. Work on the building was at once menced, and proceeded with to completion, but not within the times mentioned above, so that there arose a question as to demurrage. Extra work to the amount of several thousand dollars was done, and a small amount of work was omitted. Gilmore and Kirkman themselves procured and paid for the insurance. Upon an attempt at a settlement a serious dispute arose. Ninety-eight thousand dollars was conceded to have been the real contract price, and of this sum $86,400 had been paid, leaving a balance of $11,600. The respondent claimed $6,653 for extras, and demanded this sum in addition to the balance of the contract price, but refused to allow anything for demurrage, insurance, or uncompleted work. The architect estimated the extras at only $4,497.21; and the owners claimed for demurrage $6,050, insurance $429.07, uncompleted work $257.50. At Gilmore's suggestion, the extras were raised to $5,000; but he refused to settle except upon the terms of the contract, which he claimed justified the other de mands made by him. Out of this contention

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