Opinion Per PARKER, J.

[58 Wash.

quoted. But there was evidence tending to show that, in addition to the written acceptance, the appellant orally accepted the proposal of respondent, and in addition, both parties have treated and acted upon the contract as consummated; the respondent by manufacturing and tendering the machinery, and the appellant by accepting a part of it and paying a substantial part of the contract price. The appellant has, also, by its cross-complaint, sought to recover damages for an alleged breach of the contract on the part of the respondent. We think it clear that the contract must be regarded as having been entered into even though there may originally have been some uncertainty as to the place of delivery.

Several contentions are made in behalf of appellant based upon the theory that the balance due respondent, if any, is dependent upon the reasonable value of the washer; the trial court having excluded evidence of, and refused to consider, its reasonable value. It is argued that, since the original contract was for a lump sum as the price for both the washer and bunker, upon settlement of a part of the controversy appellant became liable in any event only for the reasonable value of the remainder, to wit, the washer. There is nothing in the record indicating that by this understanding between the parties, eliminating from the controversy all matters except the washer and the unpaid balance of the contract price, they thereby intended that these matters should be determined other than by the terms of the contract. If respondent has performed its part of the contract in the manufacture and tender of the washer, it is entitled to the whole of the balance of the contract price. The fact that the parties agreed that the contract, in so far as the delivery of the bunker and the payment of the $1,999 is concerned, should be regarded as a settlement of that portion of the contract, does not show that the balance due, if any, is to be determined by the reasonable value of the washer. We think that the reasonable value of the washer was in no way involved,

May 1910]

Opinion Per PARKER, J.

and that the court properly excluded such question from consideration in determining the rights of the parties. The question was still one of contract price, and not of reasonable value.

During the trial counsel for appellant offered to prove by the testimony of Mr. Spike, the appellant's manager, that in a conversation with him some time after the completion and tender of the washer and after this controversy arose, Mr. Mather, the respondent's manager, had stated:

"That the coal washer which had been built was not in accordance with the contract or the specifications which had been entered into between plaintiff and defendant, and for that reason the defendant took and paid for the other articles which are mentioned in this contract, and that Caldwell Bros. Co. would not require defendant to receive or take the washer."

Objection by counsel for respondent to this offer was sustained, and the ruling thereon is here claimed as error. It is plain from the record that the defense was not made upon the theory that the parties had agreed to a full settlement of the controversy by the delivery of the bunker and payment of $1,999 upon the contract price. So this evidence is only material, if at all, as an admission tending to show that the respondent had not complied with the contract in the manufacture of the washer. This is the theory upon which counsel for appellant contends that the evidence was admissible. He argues that it was an admission against the interest of respondent made by its agent, and hence, binding upon it. It seems to us that this is nothing more than an attempt to prove statements of an agent amounting only to an expression of an opinion as to the rights and obligations of his principal after the transaction out of which such rights and obligations arose, and also after such rights and obligations had become a subject of controversy.

In 16 Cyc. 1008 it is stated:

"It is to be observed that in the law of agency it is no part

30-58 WASH.

Opinion Per PARKER, J.

[58 Wash.

of an agent's duty to prejudice his principal by narrative statement's construing or otherwise affecting his principal's rights or liabilities, or to discuss the propriety of his conduct even in relation to the subject-matter of the agency. On these grounds, rather than that of irrelevancy, rests the broad general rule that an agent's narrative of a past transaction does not affect the principal."

See, also, Weideman v. Tacoma R. & Motor Co., 7 Wash. 517, 35 Pac. 414. We are of the opinion that the statements of Mather, sought to be proven, were not admissible as admissions against respondent.

It is contended by appellant that the proof shows that the washer was not a 400-ton washer, and therefore not according to the contract. This contention is based upon the assumption that the contract amounted to a guaranty that the washer was capable of washing 400 tons of coal per day, that the evidence shows that it would not wash that amount per day, and that the court should have so found; while respondent contends that the evidence would in no event warrant such a finding, and also that the contract did not amount to a guaranty as to the capacity of the washer. It will be noticed that there are no specific words of guaranty in the contract, and the contention that there was a guaranty of the nature claimed rests wholly upon the language of the contract designating or naming the washer. In the first letter of proposal it was designated as, "One 400-ton coal bunker and washer." In the second letter of proposal it was designated as, "A locally built washer of the Howe type." In the order it was designated as, "One 400-ton Howe type coal washer." In the letter of acceptance it is designated as, "One 400-ton Howe coal washer." In the specifications it is designated as, "One standard vertical type Howe coal washer, capacity 400-tons per day." According to the terms of the contract the washer was to be constructed according to specifications and blue print furnished. These, it appears from the record, provide in detail the manner of its con

May 1910]

Opinion Per PARKER, J.

struction and its size. The specifications and blue print were prepared and agreed upon by the parties before, and at the time of, entering into the contract, and no contention is made by appellant that the washer was not constructed in strict compliance therewith. Under such circumstances we think the court was fully justified in declining to hold that there was a warranty or a breach thereof as to the capacity of the washer.

When the parties to a contract designate the article to be manufactured in the manner here involved, and then proceed to agree upon detailed specifications and drawings as to the size and manner of construction of such article, we think the contract itself shows that the manner of so designating the article was nothing more than the use of a trade name or term for it, and the question of whether or not it is constructed in compliance with the terms of the contract is to be determined by the detailed specifications and drawings, and not by the mere name they may choose to call it, or the manner by which they may designate it, and that such designation does not amount to a warranty as to its capabilities. 30 Am. & Eng. Ency. Law (2d ed.), 148; Kleeb v. Bard, 7 Wash. 41, 34 Pac. 138; Diebold Safe & Lock Co. v. Huston, 55 Kan. 104, 39 Pac. 1035, 28 L. R. A. 53; Seitz v. Brewers' Refrigerating Mach. Co., 141 U. S. 510; 17 Am. & Eng. Ency. Law (2d ed.), 12.

We are of the opinion that the learned trial court correctly determined the rights of the parties, and its judgment is affirmed.

RUDKIN, C. J., DUNBAR, MOUNT, and CROW, JJ., concur.

[No. 8870. Department Two. May 26, 1910.]

WALLACE A. BUSSELL, Petitioner, v. HIRAM C. GILL, as Mayor of Seattle, Respondent.1

MUNICIPAL CORPORATIONS-SPECIAL CHARTERS-LOCAL SELF-GOVERNMENT-PUBLIC PLANS COMMISSION-VALIDITY-MEMBERSHIP. The amendment to the city charter of Seattle creating a municipal plans commission, does not violate Const., art. 11, § 10, guaranteeing local self-government, in that part of the members of the commission are to be appointed by associations, clubs, and public service corporations some of which are nonresidents of the state and of the United States; since the commissioners are all required to be citizens of the city, and are appointive, not elective, officers, with only advisory powers, whose plans are to be submitted to a vote of the people, and no legislative authority is delegated to it.

SAME-APPROVAL OF VOUCHERS-TAX. Such amendment is not objectionable by reason of conferring authority upon the commission to approve vouchers for all expenditures incurred, and requiring the comptroller to issue warrants to be paid out of the municipal plans commission fund, raised by a tax levy therefor.

SAME SPECIAL PRIVILEGES-CONSTITUTIONAL LAW. Such amendment does not violate Const., art. 1, § 12, providing that no law shall grant special privileges to any citizen or class of citizens, in that certain designated associations and corporations are granted the privilege of participating in the selection of the commission; since the right simply of recommendation is not such a right or privilege as comes within the prohibition of the constitution.

Certiorari to review a judgment of the superior court for King county, Frater, J., entered May 3, 1910, dismissing an action for an injunction, after sustaining a demurrer to the complaint. Affirmed.

Milo A. Root, for petitioner, contended, inter alia, that a taxpayer may maintain this action. Times Pub. Co. v. Everett, 9 Wash. 518, 37 Pac. 695, 43 Am. St. 865; Mazet v. Pittsburg, 137 Pa. St. 548, 20 Atl. 693; Jones v. Reed, 3 Wash. 57, 27 Pac. 1067; Crampton v. Zabriskie, 101 U. S. 601; Krieschel v. Board of Com'rs, 12 Wash. 428, 41 Pac. 'Reported in 108 Pac. 1080.