(185 P.) Manatt & Stephenson and D. A. Richard-board of supervisors. Appellant states in his son, all of Douglas, and Geo. J. Stoneman, of complaint that these 2,500 ballots should not Phoenix, for appellant. have been counted. R. N. French, Co. Atty., and W. G. Gilmore, both of Tombstone, for appellees. [1, 2] It is apparent from this statement that the action is one to contest the election. Election contests are purely statutory. They are unknown to the common law. They are neither actions at law nor suits in equity. They are special proceedings. Devous v. Gallatin County, 244 Ill. 40, 91 N. E. 102, 18 Ann. Cas. 422. Chapter 5, supra, does not provide for a contest of a county seat election. It contains the whole law on the subject, except that in section 16 thereof it is provided that ROSS, J. This is a county seat removal case. At the general election held November 5, 1918, the voters of Cochise county voted upon the questions: "Shall the county seat be removed from Tombstone? If the county seat be removed, to what place?" Bisbee or Douglas? At the time and place fixed by law, the board of supervisors of the county met and canvassed the election returns on said question and declared the result to be that 3,806 electors voted for removal, 3,881 against removal; 2,662 for Bisbee and 3,452 the same manner as general elections, and all "Every special election shall be conducted in for Douglas. The board thereupon entered laws of a general nature governing elections of its order that the county seat be not remov-county officers shall govern such elections as ed. The appellant as a resident taxpayer of far as applicable." Douglas, and a qualified elector of Cochise county, instituted this suit as "plaintiff and contestant," challenging the correctness and legality of the count of the ballots and asking that they be produced by "defendants and contestees" in court for the purpose of a recount, claiming that such recount, if made, would show that the voters at said election had chosen Douglas as the county seat. The defendants, by demurrers to complaint, raised the following questions: (1) The jurisdiction of the court to review the determination or canvass of the board of supervisors. (2) The lack of interest in the subject-matter entitling appellant to maintain the suit. (3) Insufficiency of facts stated to constitute a cause of action. From a judgment sustaining demurrers and dismissing complaint, this appeal is prosecuted. The law providing for the change of county seats is found in chapter 5, p. 5, Regular Session 1915. Thereunder, it is made the duty of the board of supervisors to order an election for a change of the seat of government when 33% per cent. of the qualified electors of the county, estimated on the vote for Governor at the last preceding election, presents a petition therefor. The form of ballot is prescribed, according to which a voter may vote for or against removal and also vote for his choice of rival candidates for the county seat. By section 10 it is provided that "Each elector shall indicate by a cross in the proper square whether he votes for or against the removal of the county seat, and shall also indicate his choice of the location for such county seat in the proper square opposite the name of the place." According to the complaint, 2,500 electors voted against removal and also expressed their choice of location, either for Bisbee or Douglas, and they were so counted by the different precinct election boards and by the * [3, 4] It is contended that this general provision makes applicable to county seat elections the law providing for contest of elections as found in chapter 14, tit. 12, Civil Code, because paragraph 3060 thereof authorizes contests of elections "to a state office or constitutional amendment or other question submitted to vote of the people." It is said county seat removals, under the law, are submitted to a vote of the people, and therefore they are covered by the expression "other question." These words, however, are found under the caption "State Elections," and the language of paragraphs 3060-3061 and 3064, Civil Code, all indicate that the "other question" refers to a statewide proposition requiring the same electorate and the same canvassing board as a state office or a constitutional amendment before it would be subject to a contest thereunder. It does not cover questions upon which only the voters of a county have voted. Paragraphs 3065 and 3066 of said chapter 14, relating to the contests of county and city offices, are silent as to any proposition or question that might be submitted to a popular vote. There is nothing, therefore, within the terms or provisions of our contest statutes that would make them applicable to a county seat election, because that law is limited to state elections and elections of county and city officers. The fact that, under the general election law, provision is made for contesting the election of state and county offices, constitutional amendments and other state-wide propositions, and the election to county and municipal offices, will not imply a grant of ju risdiction to the courts to hear and determine contested county seat elections, simply because the act providing for county seat removals refers to the general election law for the manner of conducting such elections. Wilson v. Whitley, 159 Ky. 69, 166 S. W. 775; Nixon v. Allen Parish, 132 La. 53, 60 South. I presume an obligation to return the purchase 717; Cadle v. Baker, 51 Mont. 176, 149 Pac. 960; 15 C. J. 427, § 63. price paid, since a mutual rescission implies a contract between the parties, and there may be, as a part of such contract, a waiver of return from the other obligations of such executory of price paid as a consideration of being relieved land contract. 3. PLEADING 349-ADMISSIONS IN REPLY TO ANSWER ALLEGING RESCISSION OF CON- [5] There is nothing in the proposition that the question presented is one of equitable cognizance. No question of fraud, collusion, or bad faith is suggested. The election, and all steps leading up to it, are conceded to be regular and legal. Equity will sometimes act when invoked by proper form of action to enforce or to prevent the removal of a county seat, upon a showing that the legal and necessary steps have or have not been taken, when it is made to appear that not to do so would defeat the expressed will of the electing that contract "was rescinded and forfeittorate or be in entire disregard of that will, but it will not take jurisdiction of contests simple and pure, as is this one. Wilson v. Whitley, supra; Cadle v. Baker, supra; Poe v. Sheridan County, 52 Mont. 279, 157 Pac. 185. [6] It is suggested that the superior court has jurisdiction in virtue of the expression "and for any such special cases and proceedings as are not otherwise provided for," contained in section 6, art. 6, of the Constitution, wherein the jurisdiction of that court is defined. We think there is no question of the power of the superior court to try and determine contests in county seat removal cases, providing the Legislature had made provision therefor. The trouble is that no law is in existence creating such right of action, or providing for such special proceedings.. Since the ruling of the court in sustaining the demurrer for want of jurisdiction to try county seat removal contest must be upheld, the other questions of lack of interest or insufficiency of facts are not properly before us and will not be considered. The judgment of the lower court is affirmed. as an affirmative defense that an executory land ed" and that payments had not been returned, TREAT PLEADINGS AS AMENDED TO CORRE- Where defendants entered upon trial without objecting to sufficiency of reply and offered evidence as if particular issue was raised by pleadings and made objection to sufficiency of reply first, orally while trial was proceeding, and formally in writing after it had been conrelieve from defaults and grant trial amendcluded, the court, in the exercise of its power to ments, had the right to treat the pleadings as amended to correspond with the issues suggested by the facts. Department 2. Appeal from Superior Court, Spokane County; Bruce Blake, Judge. Action by James Strang against Emil Person and another. From order denying defendants' motion for judgment on the plead CUNNINGHAM, C. J., and BAKER, J., ings, and from final judgment for plaintiff, concur. (108 Wash. 503) STRANG v. PERSON et al. (No. 15322.) (Supreme Court of Washington. Oct. 22, 1919.) 1. PLEADING 343-CONSTRUCTION OF STATUTE RELATING TO JUDGMENT ON PLEADINGS. Rem. Code 1915, § 278, providing that if answer contains a statement of new matter constituting a defense or counterclaim, and plaintiff fails to reply or demur thereto within prescribed time, defendant may move for judgment on pleadings, must be read with other statutes relating to practice. 2. VENDOR AND PURCHASER 87-RETURN OF PURCHASE PRICE PAID UPON MUTUAL RESCIS SION. The mutual rescission of an executory contract to purchase lands does not conclusively defendants appeal. Judgment affirmed. Lucius G. Nash, F. E. Langford, and P. C. Shine, all of Spokane, for appellants. John Salisbury, of Spokane, for respond ent. FULLERTON, J. The respondent brought this action against the appellants to recover upon certain promissory notes and to foreclose a chattel mortgage given to secure the same. The complaint was in form that is usual in such cases. The appellants, in their answer did not question the allegations concerning the execution of the notes and mortgage, nor the allegation of nonpayment of the obligation represented thereby, but defended by way of counterclaim. These defenses were two in number, pleaded separately. In the paragraph numbered 1 of the first of these, it was alleged that coincident with the (185 P.) "Wherefore, having fully replied to defendants' purported counterclaims and cross-complaint, plaintiff prays judgment as prayed for in his said complaint." execution of the notes and mortgages sued [ "Replying to defendants' purported second afupon, and as a part of the same transaction, firmative defense and counterclaim, plaintiff the respondent and the appellants entered in- admits the allegation in paragraph 1, of said to a conditional sale contract, wherein the re- purported affirmative defense, but denies the spondent agreed to sell and the appellants 4, 5, and 6, of said purported third affirmative allegations set forth in paragraphs Nos. 2, 3, agreed to buy certain real property for a defense and counterclaim. consideration of $4,000; $800 of which was paid on the execution of the contract, and the balance agreed to be paid in yearly installments of $800 each, with interest at 7 per cent. per annum on the deferred payments. In paragraph 2 it was alleged that, on a date prior to the commencement of the foreclosure action, the respondent and appellants "mutually rescinded and annulled the said contract of purchase," and that the appellants, at the instance and request of the respondent, "surrendered possession of said lands and said written contract for the purchase of such lands" to the respondent, who has since had possession and control of the same. It was further alleged that the respondent then and there refused and still refuses to repay to the appellants the amount paid by them on the purchase of the land, although often requested so to do, to their damage in the sum of $800, with interest from the date of the recission. On the issues thus framed, a trial was entered upon in which, according to the recitals made in the findings of fact of the court, testimony in support of their respective allegations was introduced by each of the parties. While the trial was in progress, the appellants moved orally and at the conclusion of the evidence obtained leave of court and filed a written motion for judgment on the pleadings; the motion as filed reciting that it was based upon the respondent's complaint, the appellants' first defense, and the respondent's reply thereto, "and the records and pleadings on file in this action." On the same day an order was filed denying the motion. The court thereupon made findings of fact in which it found the facts concerning the mortgage in accordance with the allegations of the complaint. On the appellants' first affirmative defense it found that the contract therein set forth had been forfeited and not mutually rescinded, and did not form the basis for a counterclaim, and, on the second, that it did no constitute a legal defense to the complaint. Conclusions of law were made corresponding with the findings, and, based on these, a decree was entered dismissing the affirmative defenses, the first with prejudice and the second without prejudice, and allowing the respondent to recover in accordance with the allegations of his complaint. In the second affirmative defense the ap-making of the notes and the execution of the pellants, in the first paragraph thereof, repeated paragraph 1 of their first defense. In the subsequent paragraphs they alleged that they were induced to enter into the contract because of false and fraudulent representations made by the respondent, concerning the condition of the land and the water supply available for irrigating the same; that, relying upon such false and fraudulent representations, they had planted the land to crops, which failed to mature for want of water, whereby they had been damaged in loss of labor and in loss of the crops in the sum of $500. In their prayer they asked to recover the sum of $500 suffered as damages, and the sum of $800 paid on the purchase price of the land, with lawful interest thereon, less the amount due on the promissory notes sued upon by the plaintiff. In their notice of appeal the appellants recite that they appeal from the order of the court denying their motion for judgment on the pleadings, and from the final judgment en To the answer the respondent replied in tered in the cause. The appeal is before us the following language: "Comes now the above-named plaintiff and replying to defendants' purported first affirmative defense and cross-complaint and the allegations therein set forth as contained in their answer, allege and deny as follows, to wit, plaintiff admits the execution of the contract as alleged in paragraph one of said first purported affirmative defense, but deny that the said contract was any part of the mortgage sued upon in plaintiff's complaint, as alleged in said par agraph. Plaintiff admits that the said contract was rescinded and forfeited, and forfeited as alleged, in paragraph 2, of said first affirmative defense and counterclaim, and admits that plaintiff refused to refund the said $800, but deny that such refusal was to the damage of defendant in any sum whatever. 185 P.-60 on the clerk's transcript of the record, the evidence not having been preserved or brought here for review. The sole assignment of error is on the ruling of the court denying their motion for judgment on the pleadings. The appellants contend that the reply of the respondent to the affirmative matter in their first affirmative answer admitted a mutual rescission of the contract of sale set forth therein and contend further that because of such mutual rescission they are entitled to a repayment of the money paid by them upon the contract. From these premises the conclusion is drawn that they were entitled to offset the sum paid against the amounts due on the notes sued upon by the respondent, and, since this sum is larger than the amount so due, are entitled | pleadings of a mutual rescission of the conto a judgment for the difference. tract without more, it was within the power of the court to relieve from such admission. [3] Since therefore the rules for which the appellants contend are not imperatively applicable in all instances, the query remains: Are they applicable to the record in the present case? We think they are not. The re The statute (Rem. Code, § 278) provides that if the answer contain a statement of new matter constituting a defense or counterclaim, and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move the court for such judgment as he is entitled to on the plead-spondent was not in default for want of a reings, and we have held that, where an executory contract for the sale of land is mutually rescinded and nothing further appears, there is an implied obligation on the part of the one receiving money under such a contract to repay it to the person from whom it was received. Ankeny v. Clark, 1 Wash. 549, 20 Pac. 583; Jones v. Grove, 76 Wash. 19, 135 Pac. 488; Jackson v. White, 104 Wash. 643, 177 Pac. 667; Connelly v. Malloy, 180 Pac. 469. [1, 2] But the statute is not so far imperative as to admit of no exceptions or no relief from the situation defined, nor does a mutual rescission of a contract, such as the one in contemplation, always imperatively imply an obligation to repay. The language of the statute is limited in terms to a case where there is a default on the part of the plaintiff, although it is probable that a formal admission of new matter constituting a defense would, under our practice, permit of the remedy of a motion for judgment on the pleadings. But, however this may be, the statute must be read in connection with other statutes relating to the practice. We have statutes allowing amendments to pleadings and statutes permitting the trial court to relieve from defaults; statutes intended to secure a trial on the merits when justice demands it, notwithstanding a party may have placed himself in a position where under the strict rules of practice the other party can move for the summary remedy. Nor does the mutual rescission of an executory contract to purchase lands conclusively presume an obligation to return the purchase price paid. A mutual rescission implies a contract between the parties, and it can be a part of such a contract that the party making the payments waives its return in consideration of being relieved from the other obligations of the contract. In case of a waiver no one would contend that there could be a recovery. The rule therefore applies only in those cases where there is a mutual rescission and nothing more, not where the parties have agreed, or where the circumstances of the rescission imply an agreement, that there shall be no return. So, in the case before us, if it be conceded that there was such a default as the statute contemplates, it was within the power of the court to relieve from that default, and, if there was an admission in the ply, nor does the reply interposed unqualifiedly admit the allegations of the answer. Seemingly, the pleader did not clearly ap preciate the distinction between a rescission and a forfeiture of a contract, and the admission is that the contract was "rescinded and forfeited, and forfeited as alleged” in the answer, treating the terms rescission and forfeiture as if they were synonymous. While this is followed by an admission that the sum paid on the contract price of the land had not been returned, this is followed in turn by a denial of the allegations in the answer to the effect that the failure to make such return resulted in damage to the appellants. It seems plain to us therefore that the reply was not such an unqualified admission of the facts as must be made to sustain the appellants' contention, and that we could not so hold did nothing more appear in the record. [4] But the record shows much more than this. It shows that the appellants entered upon the trial of the cause without objecting to the sufficiency of the reply, and offered evidence at the trial as if the particular question was a question at issue between the parties, making their objection to the sufficiency of the reply first, orally, while the trial was proceeding, and formally, in writing, after it had been concluded. Since the trial court has power to relieve from defaults and power to grant trial amendments, it had the right at that time to exercise these powers, and to treat the pleadings as amended to correspond with the issues suggested by the facts. This it in effect did when it overruled the motion and determined the cause as the merits appeared to it from the evidence of the parties. The question whether the facts shown justified the court's conclusions is not before us. This could only be determined by a review of the evidence, which as we have before stated, is not in the record. The evidence is necessary also to a review of the question whether there was an abuse of discretion in treating the pleadings as amended; the record, aside from the evidence, showing no such abuse. The judgment is affirmed. HOLCOMB, C. J., and PARKER, MOUNT, and BRIDGES, JJ., concur. (185 P.) (108 Wash. 543) RASHER-KINGMAN-HERRIN CO. v. POSTAL TELEGRAPH-CABLE (Supreme Court of Washington. Nov. 12, 1919.) Interstate Commerce Law, § 1, as amended by Act Cong. June 18, 1910, § 7 (U. S. Comp. St. 8563), has occupied the entire field as to liability of telegraph companies for mistakes in unrepeated telegrams, and state laws, whatever they may be, defining the rule of liability for negligence, cannot be applied. Holcomb, C. J., and Tolmar, J., dissenting. En Banc. stated in the telegram delivered to him, and the lemons, together with other articles, were shipped. When they arrived at Calgary Taylor refused to take the lemons at a price other than $4. The action is to recover the difference between the $7 quoted on the lemons in the message delivered at the Spokane office and the $4 specified in the message when delivered to Taylor at Calgary. In transmitting the message it was first sent to Seattle, and from that office relayed to Vancouver, British Columbia, where it was again relayed to the point of destination. There is some controversy as to whether the error in the transmission was that of the operator at Seattle in placing it on the line, or that of the operator at Vancouver, who received it for retransmission. It will be assumed that the error was that of the operator in Seattle in relaying the message from there. The message at Spokane was written upon one of the appellant's blanks, which it supplied for that purpose. On the face of this blank appeared the following: "Send the following night lettergram, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to." One of the conditions written on the back Appeal from Superior Court, Spokane thereof was: County; Wm. A. Huneke, Judge. Action by the Rasher-Kingman-Herrin Company against the Postal Telegraph-Cable Company. Judgment for plaintiff, and defendant appeals. Reversed. Horace Kimball, W. C. Donovan, and George H. Armitage, all of Spokane, for appellant. Burcham & Blair, of Spokane, for respond ent. MAIN, J. The purpose of this action was to recover damages which resulted from a mistake in the transmission of an unrepeated night lettergram. The cause was tried to the court without a jury, and resulted in findings of fact, conclusions of law, and a judgment sustaining the plaintiff's right to recover in the sum of $600. From this judgment the defendant appeals. "The company [the appellant] shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated night lettergram, beyond the amount received for sending the same. It is not claimed that the sender of the message did not know of the terms and conditions referred to. The controlling question is whether Congress by legislation has occupied the field covering the transmission of interstate meshas by such legislation so occupied the field. sages and messages to foreign countries. If it the judgment of the trial court cannot be sustained. The decisive question, therefore, is whether, under the interstate commerce law (Act Feb. 4, 1887, c. 104, 24 Stat. 379), as amended by act of Congress of June 18, 1910 (36 U. S. Statutes at Large, c. 309, p. As the case is controlled by a question of539), state laws regulating the contract oblaw the facts will only be briefly stated. The in interstate telegrams, or telegrams to forligations and liabilities of common carriers respondent Rasher-Kingman-Herrin Company, a corporation, was engaged in business eign countries, have been superseded and annulled by the provisions of the federal law. in the city of Spokane, this state. One A. W. Taylor was engaged in business at Cal-Section 1 of the amended act contains the following: gary, Canada. The appellant, the Postal Telegraph-Cable Company, is a corporation engaged in the transmission of telegraphic messages for hire. The respondent, answering an inquiry from Taylor, delivered to the appellant a message, which quoted "lemons seven dollars." When this message was delivered to Taylor at Calgary it read "lemons four dollars." Taylor accepted the offer as "The provisions of this act shall apply to telegraph, telephone, and cable companies (whether wire or wireless) engaged in sending messages from one state, territory, or district of the United States, to any other state, territory, or district of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning and purpose of this act. All charg * * For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |