cumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age, so that his guilt may be far less in degree than that of his associate in the offense." And again, in section 238: "The doctrine, therefore, may be laid down as generally true that the acts and contracts of persons who are of weak understandings, and who are thereby liable to imposition, will be held void in courts of equity, if the nature of the act or contract justify the conclusion that the party has not exercised a deliberate judgment, but that he had been imposed upon, circumvented, or overcome by cunning or artifice or undue influence." Again, in 2 Pom. Eq. Jur. § 942, it is said: "When the contract is illegal, so that both parties are to some extent involved in the illegality, in some degree affected with the unlawful taint, but are not in pari delicto (that is, both have not, with the same knowledge, willingness, and wrongful intent, engaged in the transaction, or the undertakings of each are not equally blameworthy), a court of eq uity may, in furtherance of justice and of a sound public policy, aid the one who is comparatively the more innocent, and may grant him full affirmative relief by * ting aside an executed contract, conveyance, or transfer, * as the circumstances of the case shall require." And the courts appear to act unhesitatingly upon this principle. Williams v. Collins, 67 Iowa, 413, 25 N. W. 682; Bump, Fraud. Conv. § 448, and cases there cited.

set

It would, in our opinion, be a reproach upon the law if a person should be permitted to profit by a transaction effected in the manner that this one was. A confidence was reposed by respondent which was grossly abused by Vansyckle. Taking advantage of this confidence in him, and of the reliance that respondent had in his superior business sagacity; taking advantage, also, of the ignorance and weak intellect of the respondent, and of his excitement, apprehension, and alarm (whether unfounded or not does not matter), growing out of his relations with Conrad, and assuring him of his friendship and desire to assist in what he encouraged the respondent to believe was an entirely innocent transaction,-Vansyckle secured from respondent a conveyance of 80 acres of valuable land, without any consideration paid or promised, upon which he thereafter secured a loan of $1,000 for his sole use, and subsequently conveyed the premises to appellant Gardiner (his son-in-law), who took the conveyance with full knowledge of all the cir cumstances, assurances, and promises attending the transfer from respondent to Vansyckle. The rule of law that denies relief to suitors who are in pari delicto is not violated by restoring to this respondent the premises in question, and defendants upon the record here produced cannot be permitted to invoke that rule to shield them from the consequences of a fraud in the consummation of which v.39P.no.2-18

they were the principal actors and the sole gainers.

Upon the trial of the cause in the lower court, evidence was introduced for the purpose of showing that appellant George F. Gardiner took the conveyance from Vansyckle pursuant to an agreement with the respondent, by the terms of which Gardiner was to pay respondent $1,000, and to assume the mortgage that had been placed upon the land by Vansyckle; and that Vansyckle was to pay respondent $1,000, proceeds of the mortgage loan; and appellant Gardiner asks that such agreement be enforced in the event of this court deciding the questions above considered against him, and that he be permitted to retain the land in question, and the title thereto, and that respondent be awarded a lien upon it for $1,000, the balance of the purchase price under such asserted agreement. This evidence, we think, was wholly inadmissible under the pleadings; but, as no objection appears to have been made to it upon the trial below, we have considered it, and deem it sufficient to say that no definite or binding agreement is established by the evidence. No money was paid at the time by Gardiner, nor was any time fixed or mentioned when he should be required to pay, and it is altogether too indefinite and uncertain to enable a court, upon the record presented here, to entertain or enforce it. Moreover, we are constrained to believe, from a careful consideration of the entire record, that whatever arrangement of that sort was undertaken between them was merely a subterfuge or contrivance concocted by Gardiner and defendant Vansyckle, the better to enable them successfully to consummate a fraud upon the respondent, and conceal and obliterate the evidences of it. We think the judgment of the lower court should be, and it is, in all things affirmed.

HOYT, C. J., and SCOTT, ANDERS, and DUNBAR, JJ., concur.

(11 Wash. 24)

SUTTON v. CITY OF SNOHOMISH. (Supreme Court of Washington. Jan. 31, 1895.) ACTION AGAINST CITY-EXCAVATION NEAR STREET -NOTICE-CONTRIBUTORY NEGLIGENCEEXCESSIVE DAMAGES.

1. The question of the liability of a city for injuries sustained by reason of a defective street should be raised by demurrer, and not by a motion for a nonsuit.

2. The laying out, repair, and control of streets by a chartered municipal corporation are municipal and ministerial duties, for a breach of which the corporation is liable.

3. Where a city has exclusive control of its streets, with power to raise money to keep them in repair, it is bound to keep them in a reasonably safe condition for ordinary travel.

4. Gen. St. § 638, providing that all demands against a city shall be presented to and audited by the city council, applies only to demands against the city arising from its ordinary transactions, and not to those arising from violations of municipal duty.

5. In an action against a city for injuries sustained by plaintiff from falling into an excavation near a public street, evidence that the excavation had remained open for two months before the accident, and that the mayor and one of the council had frequently been near it, and that the city council originally gave permission to dig it, establishes notice to the city.

6. Evidence that an excavation near a public street was protected only by a loose plank, resting at one end on a barrel, and supported at the other by a board fastened to a post near the edge of the sidewalk, will support a finding that the protection was insufficient for the safety of the public.

7. The evidence showed that at the time of the accident there were boards extending from a building near the excavation diagonally across the sidewalk, and 2% feet above it, leaving about one-half the length of the excavation unprotected. Plaintiff testified that it was dark at the time, and that he did not see this "sheer guard" until very close to it, and that in endeavoring to pass around it he stepped into the excavation. He testified that he knew that an excavation had been dug for a basement, and that he had seen the building while in course of construction. Held, that the question of contributory negligence was for the jury.

8. The irregularity involved in the action of the court, jury, and counsel in taking plaintiff's evidence at his residence, because of his inability to attend court, is not ground for reversal, where no objection was made, and no injury to defendant by reason thereof is shown.

9. Where the extent of plaintiff's injuries was fully shown by other evidence, defendant cannot complain of the admission of the opinion of a witness on the same subject.

10. Evidence that plaintiff, prior to his injury, was a healthy man, and that he received a scalp wound and an injury to his back, with probably a resultant internal injury; that he is partially paralyzed, and can walk only by using crutches; that he suffers much pain, and is incapacitated from doing any kind of labor, and will probably die within a year,-will sustain a verdict for $13,625.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by Eugene S. Sutton against the city of Snohomish to recover for personal injuries. From an order denying a motion for a nonsuit, and judgment for plaintiff, defendant appeals. Affirmed.

L. H. Coon, City Atty., and Coleman & Hart, for appellant. Andrews & Morris, for respondent.

ANDERS, J. Avenue B is a street running north and south in the city of Snohomish (a municipal corporation of the third class), and is intersected at right angles by First street, which is the principal thoroughfare of the city. About 7 o'clock in the evening of December 10, 1892, the respondent, while walking north on the sidewalk on the east side of the avenue, fell into an excavation, whereby he sustained serious personal injuries. This excavation was on the west side of a brick building fronting on First street and extending north on the east line of Avenue B, and extended about 3 feet into the sidewalk for a distance of 35 feet north and south. The respondent, claiming that the city negligently left this excavation open and unguarded, and without light or signal

to indicate danger, brought this action to recover damages for the injuries so sustained. The city answered, and admitted that it was a municipal corporation, and that Avenue B was one of its streets. It denied all other allegations of the complaint, and as an affirmative defense averred that at the place where the excavation was made Wells & Davis, contractors, were erecting a two-story brick building for J. Otten, the owner of the abutting property, and if any excavation was made in said street it was made by said contractors, their servants or employés, without the consent or knowledge of the city; and that the defendant had no notice that any such excavation was made, or left unguarded; and that, if the plaintiff sustained any injury, it was caused solely by his own negligence, and not by the negligence of the defendant. A verdict for $13,625 was returned by the jury against the city, and a judgment was subsequently entered in accordance therewith. At the close of the plaintiff's evidence the defendant moved for a nonsuit on the ground that the plaintiff had not made a sufficient case for the jury. The motion was denied, and the defendant excepted, and this ruling of the court is assigned as error. It is urged on behalf of the appellant that the motion for nonsuit should have been granted for the following reasons: "(1) Nonliability of the defendant; (2) failure of the plaintiff to present his claim and demand payment thereof before beginning this action; (3) it does not appear that the defendant had notice of the defect in the highway complained of; (4) that it appears from plaintiff's case that he was guilty of contributory negligence."

As to the liability of the city of Snohomish for injuries sustained by individuals by reason of defective streets, it may not be improper here to observe that the question is not properly raised by the motion for a nonsuit. It is a pure question of law, and such questions are properly raised by demurrer. But, inasmuch as no objection is made to its consideration upon the motion, we will consider it as presented and discussed in the able briefs of counsel. It is urged by counsel for the appellant that the damages claimed in this action are for neglect of governmental duty, and for that reason, as well as for the further reason that there is no express statute in this state making cities of the third class liable for damages resulting from failure to keep their streets in repair, this action cannot be maintained. It must be conceded that there is no legislative enactment declaring these cities liable for such negligence as is alleged in the complaint in this action, and it may also be conceded that the appellant city cannot legally be made to respond in damages for negligence in the discharge of purely governmental duties. But it does not necessarily follow from these propositions that the city is exempt from liability in the present case. In the first

place, we are of the opinion that the laying out, repairing, and controlling of streets by a chartered municipal corporation does not call forth the exercise of strictly governmental functions. In the performance of such duties, however imposed, the municipality acts primarily for the benefit of the inhabitants of the particular locality. In preserving the peace, caring for the poor, preventing the destruction of property by fire, and preserv ing the public health it assumes duties which are said to be in their nature solely governmental (Jones, Neg. Mun. Corp. c. 4), and for the nonexercise or negligent exercise of which the corporation is not generally liable to individual citizens. But the duty to keep streets in repair is a municipal or ministerial duty, for a breach of which an action will lie in favor of a party injured thereby. City of Denver v. Dunsmore, 7 Colo. 328, 3 Pac. 705. In the second place, we think that where, as here, a city has exclusive control and management of its streets, with power to raise money for their construction and repair, a duty (when not expressly imposed by charter) arises to the public, from the character of the powers granted, to keep its streets in a reasonably safe condition for use in the ordinary modes of travel, and that it is liable to respond in damages to those injured by a neglect to perform such duty. There is undoubtedly a want of harmony among the decisions of the courts upon this question, but we believe the decided weight of authority, as well as sound reason, is in favor of the view above expressed. City of Denver v. Dunsmore, supra; Shear. & R. Neg. (4th Ed.) § 289; 2 Dill. Mun. Corp. (4th Ed.) § 1017; Elliott, Roads & S. p. 446; Jones, Neg. Mun. Corp. 88 et seq.; Cooley, Torts (2d Ed.) 746; Weightman v. City of Washington, 1 Black, 39; Barnes v. District of Columbia, 91 U. S. 540; District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990. But this question is not a new one in this state. It was before the territorial su preme court in Hutchinson v. City of Olympia, 2 Wash. T. 314, 5 Pac. 606, and was there decided adversely to the contention of the appellant; and was referred to approvingly in Morgan v. Morley, 1 Wash. St. 464, 25 Pac. 333.

The statute provides (Gen. St. § 638) that: "All demands against such city shall be presented to and audited by the city council in accordance with such regulations as they may by ordinance prescribe; and upon the allowance of any such demand the mayor shall draw a warrant upon the treasurer for the same, which warrant shall be countersigned by the clerk, and shall specify for what purpose the same is drawn, and out of what fund it is to be paid." A presentation of the claim sued upon to the city council was not alleged or proved in this instance, but we think it was not such a demand as was contemplated by the legislature in enacting the section of the statute above quoted.

The demands there spoken of are those aris ing out of the ordinary transactions of the city, and which may be examined and compared with the vouchers, and "audited," and, not those resulting from violations of municipal duties. This construction has virtually been given to statutes even more mandatory in terms than ours by the highest courts of several of the states. See Kelley v. Madison, 43 Wis. 638; Bradley v. City of Eau Claire, 56 Wis. 168, 14 N. W. 10; Jung v. City of Stevens Point, 74 Wis. 547, 43 N. W. 513; Lay v. City of Adrian, 75 Mich. 438, 42 N. W. 959; Warren v. Davis, 43 Ohio St. 447, 3 N. E. 301; Sheridan v. Salem, 14 Or. 328, 12 Pac. 925; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. E. 43.

We readily agree with the learned counsel for the appellant in the assertion that the city cannot be held guilty of negligence if it had no notice of the existence of the excavation in question. But we are unable to say that no notice had been shown by the plaintiff when he closed his case. It is not necessary, in such cases, that actual notice be shown. Constructive notice is sufficient. If this dangerous hole, which, according to the statement in appellant's brief, was but 11 feet and 5 inches from the north line of First street, was in existence for such a length of time that the city authorities, by the exercise of ordinary vigilance, would have discovered it in time to prevent the accident, the city cannot escape liability for want of notice. Under such circumstances the law imparts notice. Failure to discover and remedy a dangerous defect in a public street within a reasonable time is itself negligence. There was evidence tending to prove that this excavation was made some two months before the respondent fell into it, and that the mayor of the city, and at least one of the members of the council, were very frequently in close proximity to it before the accident occurred. Whether the street commissioner ever saw it or not is not disclosed by the evidence, but, if he did not, he was certainly remiss in the discharge of his official duty. We think the court committed no error in refusing to withdraw the question of notice from the consideration of the jury. Moreover, it conclusively appears from the evidence adduced by the defendant that the city council gave permission to Mr. Otten to remove the sidewalks on First street and Avenue B, and to make this excavation for a basement of a building which he was about to erect. This permit must have been given as early as July, 1892, for it appears that the contract for excavating the basement was let during that month. The fact that a permit was granted was notice to the authorities that the work was in progress, and they were then charged with the duty of seeing that it was properly conducted. District of Columbia v. Woodbury, supra; Cleveland v. City of St. Paul, 18 Minn. 279

(Gil. 255). See, also, Prentiss v. Boston, 112 Mass. 43: Deering, Neg. § 174.

And it was incumbent upon them to see that the excavation was so guarded as to protect travelers upon the street from being injured by it. That such was the duty of the city is not disputed, but it is earnestly insisted that the evidence fails to establish negligence in that regard, for the reason that it is shown that the excavation was always guarded against accidents, and that the barrier which was usually kept across the sidewalk in front of it was not removed by any of the city authorities, or with their knowledge or consent, and was in its usual place as late as 3 o'clock in the afternoon of the day on which the respondent was injured. The argument is that so short a time elapsed between the removal of the safeguard and the happening of the accident that constructive notice of the dangerous condition of the sidewalk at the time of the accident cannot be imputed to the city. But whether want of notice or knowledge of the removal would exempt the city from liability, under the circumstances of this case, depends entirely upon whether or not, in the first instance, a sufficient protection was provided to guard travelers upon the sidewalk against accident. It is not pretended that the city itself ever put up any railing or other safeguard around this excavation, and, for aught that appears in the record, it never even required the person at whose instance it was dug to do so. It appears, however, that the owner of the adjoining property, or those who erected the building thereon, did place a loose plank or joist across the sidewalk at or near the south end of the excavation. The end of this plank next to the building and excavation rested upon a lime barrel, and the other end was supported by a board, which was fastened to a post near the outer edge of the walk. If that was an adequate protection, under the then existing circumstances, the city is not liable for any injuries resulting from its removal by some unauthorized person, and occurring before it could, by the exercise of reasonable diligence, discover its displacement. But whether this board, which was without any permanent or substantial fastening whatever, and was liable to thrown down at any moment by the mere carelessness or thoughtlessness of persons passing along the sidewalk, was at any time a sufficient protection to the public, was a question for the jury to decide. And they decided that it was not, and we think their conclusion was amply justified by the facts before them. See Jackson v. Schmidt, 14 La. Ann. 806, and District of Columbia v. Woodbury, supra.

be

Neither do we think that the court erred in submitting the question of contributory negligence on the part of the plaintiff to the jury. The evidence discloses that at the time of the accident there were a couple of boards

extending from the side of the building, at a point near the middle of the excavation, diagonally across the sidewalk in a southwesterly direction, constituting what the witnesses denominated a "sheer guard." These boards were nailed to a post at their southwestern extremity, but it does not exactly appear how they were supported at the end next to the building. They were about 21⁄2 feet above the sidewalk. This "sheer" left about one-half of the length of the excavation entirely unprotected. The respondent, as he says, did not see it until he almost got against it, as it was then quite dark. When he discovered it, he stepped around to the right, and fell into the excavation, which he did not see, and of which he had no knowledge. He knew that a large excavation was dug for the purpose of a basement, and had several times seen the building while in course of construction; but that was the extent of his knowledge of the situation. Whether there was sufficient light upon the street to have enabled him to see where he was going was a controverted question, but it is conceded that the area way itself was not lighted at all. The appellant claims that the fact that the respondent did not retrace his steps, and leave the sidewalk, when he saw the fence before him, is conclusive evidence of negligence on his part; but we do not think so. Whether an ordinarily prudent and cautious man would, under similar circumstances, have turned to the right or to the left, was a question for the jury, and not the court, to determine.

The respondent was not able to go to the courthouse at the time of the trial, and his testimony was taken at his residence, in the presence of the judge, jury, and counsel for the respective parties; and the appellant now claims that the proceeding was contrary to law, and that the judgment ought to be reversed on account thereof. The proceeding was, no doubt, irregular, but it does not appear that it was objected to at the time, nor can we see that the appellant was in any wise injured or prejudiced thereby. Error without injury is not a sufficient ground of reversal.

It is objected that the court committed error in giving certain instructions to the jury, and also in refusing to give certain instructions requested by appellant. The instructions given are voluminous, and a careful examination of them satisfies us that the law governing the case was fairly presented to the jury. Taken together, they are as favorable to the appellant as the facts and the law would warrant.

The appellant also claims that the court erred in permitting a witness to give his opinion as to whether the respondent was badly hurt by his fall, but we think the objection is untenable; and, besides, the effect of the accident upon the respondent was fully shown by other evidence, to which no objection was interposed. In our opinion, appel

lant was not prejudiced by any ruling of the court in admitting or excluding testimony. Lastly, it is contended that the verdict is excessive, and for that reason should be set aside, and a new trial ordered. Code Civ. Proc. § 400, provides that a new trial may be granted for excessive damages appearing to have been given under the influence of passion or prejudice. But in this instance we perceive nothing indicating in the slightest degree that the jury were influenced by any improper motive whatever in assessing plaintiff's damages. Nor are we able to say that the damages awarded are more than a just compensation for the injuries sustained by the respondent. That those injuries were of a very serious character will appear from the following clear and concise statement contained in the brief of counsel for the appellant: "He received a scalp wound, and an injury to the small of the back, and probably a resultant injury to the kidney. The lower extremities are partially paralyzed, and it is only by the use of crutches he is able to walk about the house. He suffers much pain, sleeps but little, and will never be able to do work as a turner and millwright, or any other kind of labor, and will probably not live longer than a year. Prior to this injury he was a healthy man." In view of these facts, we are not disposed to disturb the verdict on the ground of excessive damages. We find no substantial error in the record, and the judgment is therefore affirmed.

DUNBAR and SCOTT, JJ., concur. HOYT, C. J., dissents.

(11 Wash. 1)

HARDY v. HOHL.

(Supreme Court of Washington. Jan. 17, 1895.) ATTORNEY'S FEE-STIPULATION IN NOTE-APPEAL.

1. Where, in an action on a note, a verdict is rendered for the amount of principal and interest, and the instructions are not preserved in the record on appeal, the supreme court will assume that the jury were properly instructed as to the only defense made,-a material alteration after the execution of the note,-and that the jury found against the defendant on this is

sue.

2. Where a note stipulates for an attorney's fee of $50 if collected by suit, and the jury renders a verdict for the principal and interest, the court may include the amount of the fee in the judgment.

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by Henry W. Hardy against Conrad Hohl on a promissory note. From a judgment for plaintiff, defendant appeals. Affirmed.

J. R. Boarman, for appellant. Blake & Post, for respondent.

SCOTT, J. This was an action upon a promissory note, and from the verdict and judgment thereon against him the defendant appeals. The defense was that the note had been materially altered after its execution

and delivery, by the insertion of the word "fifty" in a space left in the printed form used for the insertion of an attorney's fee. The insertion of this word made it appear as though an attorney's fee of $50 had been stipulated in case suit was brought to enforce collection of the note. The jury found for the plaintiff for the amount of the principal and interest only, and the court, in rendering judgment thereon, added the sum of $50 thereto as an attorney's fee. The instructions given to the jury are not in the record. The respondent contends that they were not instructed to include the attorney's fee in their verdict if they found for the plaintiff. Whatever the fact may be with regard to this, it appears from the standpoint of the appellant that the defense was that there could be no recovery upon the note if the same had been altered as claimed. The charge of the court not being in the record, it will be presumed that the question as to the alteration of the note was submitted to the jury according to this contention, and with proper instructions; and as it appears that this was the only defense relied upon, and as the amount of the verdict for the principal and interest depended upon mere computation, in finding for the plaintiff the jury must have found that the note had not been altered, as to which the evidence was conflicting. The jury not having been instructed to include the amount of the attorney's fee in their verdict, and we are bound to presume that they were not, under the circumstances, to support the judgment, and it being a stipulated sum, as to which there could be no controversy, if inserted before the execution of the note, there was no error upon the part of the court in rendering judgment therefor in addition to the amount of the verdict. Bank v. Knipe, 6 Wash. 348, 33 Pac. 834. Judgment affirmed.

HOYT, C. J., and DUNBAR, GORDON, and ANDERS, JJ., concur.

(11 Wash, 16)

MERRILL v. MUZZY et al. (Supreme Court of Washington. Jan. 26, 1895.) NEGOTIABLE INSTRUMENTS-AGREEMENT BETWEEN GUARANTORS-NOTICE TO PAYEE-ATTORNEY'S FEE.

1. The fact that the application for a loan stated that the note would be guarantied by certain persons is not notice to the lender of an agreement between such persons that all of them should become guarantors before any of them should be bound.

2. The attorney's fee provided for in a note in case of action "to collect the note or any portion thereof" is not recoverable in an action on the note before maturity for an installment of interest only.