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cumstances of oppression, imposition, hard- ! they were the principal actors and the sole ship, undue influence, or great inequality of gainers. condition or age, so that his guilt may be far Upon the trial of the cause in the lower less in degree than that of his associate in court, evidence was introduced for the purthe offense." And again, in section 238: 'pose of showing that appellant George F. "The doctrine, therefore, may be laid down | Gardiner took the conveyance from Vanas generally true that the acts and contracts syckle pursuant to an agreement with the of persons who are of weak understandings, respondent, by the terms of which Gardiner and who are thereby liable to imposition, was to pay respondent $1,000, and to assume will be held void in courts of equity, if the the mortgage that had been placed upon the nature of the act or contract justify the con- land by Vansyckle; and that Vansyckle was clusion that the party has not exercised a de- to pay respondent $1,000, proceeds of the liberate judgment, but that he had been im- mortgage loan; and appellant Gardiner asks posed upon, circumvented, or overcome by cun- that such agreement be enforced in the event ning or artifice or undue influence." Again, in of this court deciding the questions above 2 Pom. Eq. Jur. $ 942, it is said: "When the considered against him, and that he be percontract is illegal, so that both parties are mitted to retain the land in question, and to some extent involved in the illegality,- the title thereto, and that respondent be in some degree affected with the unlawful awarded a lien upon it for $1,000, the baltaint,-but are not in pari delicto (that is, ance of the purchase price under such asboth have not, with the same knowledge, serted agreement. This evidence, we think, willingness, and wrongful intent, engaged in was wholly inadmissible under the pleadings; the transaction, or the undertakings of each but, as no objection appears to have been are not equally blameworthy), a court of eq. made to it upon the trial below, we have uity may, in furtherance of justice and of a considered it, and deem it sufficient to say sound public policy, aid the one who is com- that no definite or binding agreement is esparatively the more innocent, and may grant tablished by the evidence. No money was him full affirmative relief by. *

set

paid at the time by Gardiner, nor was any ting aside an executed contract, conveyance, time fixed or mentioned when he should be or transfer, * as the circumstances required to pay, and it is altogether too inof the case shall require." And the courts definite and uncertain to enable a court, upappear to act unhesitatingly upon this prin- on the record presented here, to entertain or ciple. Williams v. Collins, 67 Iowa, 413, 25

enforce it. Moreover, we are constrained to X. W. 682; Bump, Fraud. Conv. $ 448, and believe, from a careful consideration of the cases there cited.

entire record, that whatever arrangement of It would, in our opinion, be a reproach up

that sort was undertaken between them was on the law if a person should be permitted to merely a subterfuge or contrivance concocted profit by a transaction effected in the man- by Gardiner and defendant Vansyckle, the ner that this one was. A confidence was re

better to enable them successfully to consumposed by respondent which was grossly abus

mate a fraud upon the respondent, and coned by Vansyckle. Taking advantage of this

ceal and obliterate the evidences of it. We confidence in him, and of the reliance that think the judgment of the lower court should respondent had in his superior business sa- be, and it is, in all things affirmed. gacity; taking advantage, also, of the ignorance and weak intellect of the respondent, HOYT, C. J., and SCOTT, ANDERS, and and of his excitement, apprehension, and

DUNBAR, JJ., concur. alarm (whether unfounded or not does not matter), growing out of his relations with Conrad, and assuring him of his friendship

(11 Wash. 24) and desire to assist in what he encouraged SUTTON V. CITY OF SNOHOMISH. the respondent to believe was an entirely in

(Supreme Court of Washington. Jan. 31, 1895.) nocent transaction,-Vansyckle secured from

ACTION AGAINST City-EXCAVATION NEAR STREET respondent a conveyance of 80 acres of valu- -Notice-CONTRIBUTORY NEGLIGENCE able land, without any consideration paid or

EXCESSIVE DAMAGES. promised, upon which he thereafter secured 1. The question of the liability of a city for

injuries sustained by reason of a defective street a loan of $1,000 for his sole use, and subse

should be raised by demurrer, and not by a moquently conveyed the premises to appellant tion for a nonsuit. Gardiner (his son-in-law), who took the con- 2. The laying out, repair, and control of veyance with full knowledge of all the cir

streets by a chartered municipal corporation

are municipal and ministerial duties, for a cumstances, assurances, and promises attend- breach of which the corporation is liable. ing the transfer from respondent to Van- 3. Where a city has exclusive control of syckle. The rule of law that denies relief to its streets, with power to raise money to keep

them in repair, it is bound to keep them in a suitors who are in pari delicto is not violated

reasonably safe condition for ordinary travel. by restoring to this respondent the premises 4. Gen. St. $ 638, providing that all dein question, and defendants upon the record mands against a city shall be presented to and here produced cannot be permitted to invoke

audited by the city council, applies only to de

mands against the city arising from its ordinary that rue to shield them from the consequen- transactions, and not to those arising from vioees of a fraud in the consummation of which lations of municipal duty.

v.39P.no.2-18

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 sidewaik, and 2142 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. Hdd, that the question of contributory negligence was for the jury.

8. The irregularity involved 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.

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 iinproper 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 gorernmental 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 froin liability in the present case. In the first

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

mole

place, we are of the opinion that the laying The demands there spoken of are those arisout, repairing, and controlling of streets by a ing out of the ordinary transactions of the chartered municipal corporation does not call city, and which may be examined and comforth the exercise of strictly governmental pared with the vouchers, and "audited," and functions. In the performance of such du- not those resulting from violations of muties, however imposed, the municipality acts nicipal duties. This construction has virprimarily for the benefit of the inhabitants tually been given to statutes even of the particular locality. In preserving the mandatory in terms than ours by the highpeace, caring for the poor, preventing the est courts of several of the states. See destruction of property by fire, and preservo Kelley v. Madison, 43 Wis. 638; Bradley v. ing the public health it assumes duties which City of Eau Claire, 56 Wis. 168, 14 N. W. are said to be in their nature solely govern- 10; Jung v. City of Stevens Point, 74 Wis. mental (Jones, Neg. Mun. Corp. c. 4), and for 547, 43 N. W. 513; Lay v. City of Adrian, 75 the nonexercise or negligent exercise of Mich. 438, 42 N. W. 959; Warren v. Davis, which the corporation is not generally liable 43 Ohio St. 447, 3 N. E. 301; Sheridan v. to individual citizens. But the duty to keep Salem, 14 Or. 328, 12 Pac. 925; Pomfrey v. streets in repair is a municipal or ministerial Village of Saratoga Springs, 104 N. Y. 459, 11 duty, for a breach of which an action will N. E. 43. lie in favor of a party injured thereby. City We readily agree with the learned counsel of Denver v. Dunsmore, 7 Colo. 328, 3 Pac. for the appellant in the assertion that the 705. In the second place, we think that city cannot be held guilty of negligence if where, as here, a city has exclusive control it had no notice of the existence of the excaand management of its streets, with power vation in question. But we are unable to to raise money for their construction and re- say that no notice had been shown by the pair, a duty (when not expressly imposed by plaintiff when he closed his case. It is not charter) arises to the public, from the char- necessary, in such cases, that actual notice acter of the powers granted, to keep its be shown. Constructive notice is sufficient. streets in a reasonably safe condition for If this dangerous hole, which, according to use in the ordinary modes of travel, and that the statement in appellant's brief, was but it is liable to respond in damages to those in- 11 feet and 5 inches from the north line of jured by a neglect to perform such duty. First street, was in existenee for such a There is undoubtedly a want of harmony length of time that the city authorities, by among the decisions of the courts upon this the exercise of ordinary vigilance, would question, but we believe the decided weight have discovered it in time to prevent the acof authority, as well as sound reason, is in cident, the city cannot escape liability for want favor of the view above expressed. City of notice. Under such circumstances the law of Denver v. Dunsmore, supra; Shear. & R. imparts notice. Failure to discover and remedy Neg. (4th Ed.) § 289; 2 Dill. Mun. Corp. (4th a dangerous defect in a public street within Ed.) & 1017; Elliott, Roads & S. p. 446; Jones,

a reasonable time is itself negligence. There Neg. Mun. Corp. 88 et seq.; Cooley, Torts was evidence tending to prove that this ex(20 Ed.) 746; Weightman v. City of Wash

cavation was made some two months before ington, 1 Black, 39; Barnes v. District of

the respondent fell into it, and that the may. Columbia, 91 U. S. 540; District of Colum- or of the city, and at least one of the membia v. Woodbury, 136 U. S. 450, 10 Sup. Ct.

bers of the council, were very frequently in 990. But this question is not a new one in

close proximity to it before the accident octhis state. It was before the territorial su.

curred. Whether the street commissioner preme court in Hutchinson v. City of Olym

ever saw it or not is not disclosed by the pia, 2 Wash. T. 314, 5 Pac. 606, and was

evidence, but, if he did not, he was certhere decided adversely to the contention of

tainly remiss in the discharge of his official the appellant; and was referred to approv- duty. We think the court committed no ingly in Morgan v. Morley, 1 Wash. St. 461,

error in refusing to withdraw the question 25 Pac. 333.

of notice from the consideration of the jury. The statute provides (Gen. St. § 638) that: Moreover, it conclusively appears from the "All demands against such city shall be pre- evidence adduced by the defendant that the sented to and audited by the city council

city council gave permission to Mr. Otten in accordance with such regulations as they to remove the sidewalks on First street and may by ordinance prescribe; and upon the Avenue B, and to make this excavation for allowance of any such demand the mayor a basement of a building which he was shall draw a warrant upon the treasurer for about to erect. This permit must have been the same, which warrant shall be counter- given as early as July, 1892, for it appears signed by the clerk, and shall specify for that the contract for excavating the basewhat purpose the same is drawn, and out of ment was let during that month. The fact what fund it is to be paid." A presentation of that a permit was granted was notice to the the claim sued upon to the city council was authorities that the work was in progress, not alleged or proved in this instance, but and they were then charged with the duty we think it was not such a demand as was of seeing that it was properly conducted. contemplated by the legislature in enacting District of Columbia v. Woodbury, supra; the section of the statute above quoted. Cleveland v. City of St. Paul, 18 Minn. 279 (Gil. 255). See, also, Prentiss v. Boston, 112 extending from the side of the building, at Mass. 43; Deering, Neg. $ 171.

a point near the middle of the excavation, And it was incumbent upon them to see diagonally across the sidewalk in a souththat the excavation was so guarded as to pro- westerly direction, constituting what the wittect travelers upon the street from being nesses denominated a "sheer guard." These injured by it. That such was the duty of boards were nailed to a pust at their souththe city is not disputed, but it is earnestly western extremity, but it does not exactly insisted that the evidence fails to establish appear how they were supported at the end negligence in that regard, for the reason next to the building. They were about 214 that it is shown that the excavation was feet above the sidewalk. This "sheer" left always guarded against accidents, and that about one-half of the length of the excavathe barrier which was usually kept across tion entirely unprotected. The respondent, the sidewalk in front of it was not removed as he says, did not see it until he almost got by any of the city authorities, or with their against it, as it was then quite dark. When knowledge or consent, and was in its usual he discovered it, he stepped around to the place as late as 3 o'clock in the afternoon right, and fell into the excavation, which he of the day on which the respondent was in- did not see, and of which he had no knowl. jured. The argument is that so short a edge. He knew that a large excavation was time elapsed between the removal of the dug for the purpose of a basement, and had safeguard and the happening of the acci- several times seen the building while in course dent that constructive notice of the danger- of construction; but that was the extent of ous condition of the sidewalk at the time of his knowledge of the situation. Whether the accident cannot be imputed to the city. there was sufficient light upon the street to But whether want of notice or knowledge of

have enabled him to see where he was going the removal would exempt the city from was a controverted question, but it is concedliability, under the circumstances of this ed that the area way itself was not lighted case, depends entirely upon whether or not, at all. The appellant claims that the fact in the first instance, a sufficient protection that the respondent did not retrace his steps, was provided to guard travelers upon the and leave the sidewalk, when he saw the sidewalk against accident. It is not pre

fence before him, is conclusive evidence of tended that the city itself ever put up any

negligence on his part; but we do not think railing or other safeguard around this exca- so. Whether an ordinarily prudent and cauvation, and, for aught that appears in the

tious man would, under similar circumstanrecord, it never even required the person at ces, have turned to the right or to the left, whose instance it was dug to do so.

was a question for the jury, and not the pears, however, that the owner of the adjoin- court, to determine. ing property, or those who erected the build- The respondent was not able to go to the ing thereon, did place a loose plank or joist courthouse at the time of the trial, and his across the sidewalk at or near the south end testimony was taken at his residence, in the of the excavation. The end of this plank presence of the judge, jury, and counsel for next to the building and excavation rested the respective parties; and the appellant now upon a lime barrel, and the other end was claims that the proceeding was contrary to supported by a board, which was fastened law, and that the judgment ought to be to a post near the outer edge of the walk. reversed on account thereof. The proceeding If that was an adequate protection, under was, no doubt, irregular, but it does not apthe then existing circumstances, the city is pear that it was objected to at the time, nor not liable for any injuries resulting from its can we see that the appellant was in any removal by some unauthorized person, and wise injured or prejudiced thereby. Eitor occurring before it could, by the exercise of without injury is not a sufficient ground of reasonable diligence, discover its displace- reversal. ment. But whether this board, which was It is objected that the court committed erwithout any permanent or substantial fas- ror in giving certain instructions to the jury, tening whatever, and was liable to be and also in refusing to give certain instructhrown down at any moment by the mere tions requested by appellant. The instruccarelessness or thoughtlessness of persons tions given are voluminous, and a careful passing along the sidewalk, was at any time examination of them satisfies us that the law a sufficient protection to the public, was a governing the case was fairly presented to question for the jury to decide. And they the jury. Taken together, they are as favordecided that was not, and we think their able to the appellant as the facts and the conclusion was amply justified by the facts la w would warrant. before them. See Jackson v. Schmidt, 14 The appellant also claims that the court La. Ann. 806, and District of Columbia v. erred in permitting a witness to give his Woodbury, supra.

opinion as to whether the respondent was Neither do we think that the court erred badly hurt by his fall, but we think the obin submitting the question of contributory jection is untenable; and, besides, the effect negligence on the part of the plaintiff to the of the accident upon the respondent was fully jury. The evidence discloses that at the time shown by other evidence, to which no objecof the accident there were a couple of boards tion was interposed. In our opinion, appel

It ap

lant was not prejudiced by any ruling of the and delivery, by the insertion of the word court in admitting or excluding testimony. “fifty" in a space left in the printed form

Lastly, it is contended that the verdict is used for the insertion of an attorney's fee. excessive, and for that reason should be set The insertion of this word made it appear aside, and a new trial ordered. Code Civ. as though an attorney's fee of $50 had been Proc. $ 400, provides that a new trial may be stipulated in case suit was brought to engranted for excessive damages appearing to force collection of the note. The jury found have been given under the influence of pas- for the plaintiff for the amount of the prinsion or prejudice. But in this instance we cipal and interest only, and the court, in perceive nothing indicating in the slightest | rendering judgment thereon, added the sum degree that the jury were influenced by any of $50 thereto as an attorney's fee. The inimproper motive whatever in assessing plain-structions given to the jury are not in the tiff's damages. Nor are we able to say that record. The respondent contends that they the damages awarded are more than a just were not instructed to include the attorney's compensation for the injuries sustained by fee in their verdict if they found for the the respondent. That those injuries were of plaintiff. Whatever the fact may be with a very serious character will appear from the regard to this, it appears from the standfollowing clear and concise statement con- point of the appellant that the defense was tained in the brief of coinsel for the appel- that there could be no recovery upon the lant: "He received a scalp wound, and an note if the same had been altered as injury to the small of the back, and probably claimed. The charge of the court not being a resultant injury to the kidney. The lower in the record, it will be presumed thąt the extremities are partially paralyzed, and it question as to the alteration of the note was is only by the use of crutches he is able to submitted to the jury according to this conwalk about the house. He suffers much pain,tention, and with proper instructions; and sleeps but little, and will never be able to do as it appears that this was the only defense work as a turner and millwright, or any oth- relied upon, and as the amount of the verer kind of labor, and will probably not live dict for the principal and interest depended longer than a year. Prior to this injury he upon mere computation, in finding for the was a healthy man." In view of these facts, | plaintiff the jury must have found that the we are not disposed to disturb the verdict note had not been altered, as to which the on the ground of excessive damages. We evidence was conflicting. The jury not havfind no substantial error in the record, and ing been instructed to include the amount of the judgment is therefore affirmed.

the attorney's fee in their verdict, and we are

bound to presume that they were not, under DUNBAR and SCOTT, JJ., concur. HOYT,

the circumstances, to support the judgment, C. J., dissents.

and it being a stipulated sui, as to which

there could be no controversy, if inserted be(11 Wagh. 1)

fore the execution of the note, there was HARDY V. HOHL.

no error upon the part of the court in ren(Supreme Court of Washington. Jan. 17, 1895.)

dering judgment therefor in addition to the ATTORNEY's Fee-STIPULATION IN Note-APPEAL.

amount of the verdict. Bank V. Knipe, 6 1. Where, in an action on a note, a verdict

Wash. 348, 33 Pac. 834. Judgment affirmed. is rendered for the amount of principal and interest, and the instructions are not preserved HOYT, C. J., and DUNBAR, GORDON, in the record on appeal, the supreme court will assume that the jury were properly instructed

and ANDERS, JJ., concur. 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

(11 Wash, 16) 2. Where a note stipulates for an attorney's

MERRILL V. MUZZY et al. fee of $50 if collected by suit, and the jury ren

(Supreme Court of Washington. Jan. 26, 1895.) ders a verdict for the principal and interest, the court may include the amount of the fee in the

NEGOTIABLE INSTRUMENTS- AGREEMENT BETWEEN judgment.

GUARANTORS-NOTICE TO PAYEE-AT

TORNEr's FEE. Appeal from superior court, Spokane

1. The fact that the application for a loan county; James Z. Moore, Judge.

stated that the note would be guarantied by Action by Henry W. Hardy against Con- certain persons is not notice to the lender of an rad Hohl on a promissory note. From a

agreement between such persons that all of

them should become guarantors before any of judgment for plaintiff, defendant appeals. them should be bound. Affirmed.

2. The attorney's fee provided for in a note

in case of action "to collect the note or any J. R. Boarman, for appellant. Blake & portion thereof" is not recoverable in an action Post, for respondent.

on the note before maturity for an installment

of interest only. SCOTT, J. This was an action upon a Appeal from superior court, Spokane counpromissory note, and from the verdict and ty; James z. Moore, Judge. judgment thereon against him the defendant Action by Sylvanus B. Merrill against H. appeals. The defense was that the note had | N. Muzzy and others, as guarantors upon a been materially altered after its execution promissory note, to recover an installment of

sue.

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