ment of the law applicable to the condition here shown to exist. Whatever the rule may be as to the duty of the city after having laid out and improved its streets, to use ordinary care in keeping the entire street from prop the iron posts which supported the wires being driven at the point where the west line of the cement sidewalk intersected the edge of the walkway leading to the house at No. 779 Lakeview avenue. This obstruction thus erected was more than 8 feet from the property line to property line in reasonably safe erty line and within the portions of the street which the city had laid out and improved for public use and travel. On October 20, 1915, the owner of the premises leased the front room of the house to the appellant for the purposes of a municipal election to be held on March 7, 1916, a primary election on February 21, 1916, and for the convenient registration of electors on January 7 and 8, 1916. From the record it is not clear whether the obstruction had been erected when the city selected the premises at the time the lease was executed. However, it is certain that it existed as early as the month of November, 1915, and was allowed by the city to be and remain in such condition until the respondent sustained the injury on the evening of March 7, 1916; notwithstanding the fact that at least three other persons stumbled over the wire netting prior to the happening of the respondent's injury-one of which accidents occurred during the primary election on February 21, 1916. No lights or warnings of any character were ever placed or maintained with reference to the obstruction, and there was nothing to indicate or disclose its presence when the injury occurred. Between 7 and 8 o'clock on the evening of March 7, 1916, respondent and his wife walk ed north along the sidewalk on the west side of Lakeview avenue intending to vote at the polling place maintained by the city on the premises as above described. The respondent was on the inside, or west side, of the sidewalk. As they reached the intersection of the walkway leading to the house, the respondent's left foot became entangled in the wire netting and he fell forward upon the cement walk, resulting in the injury for which this action was brought. The night was dark and stormy and there was no light in the vicinity sufficient to reveal the obstruction beside the sidewalk. [1] It is first urged by appellant that the holding of an election, including the selection of a voting place, is a governmental function, and the city is not responsible for injuries occasioned to the voters on the premises where the election is being held. A sufficient answer to this contention is that the facts in this case show the injury occurred in the street, not on the premises where the election was held. [2] It is next urged that the city is not liable for injuries received by pedestrians while outside that part of the street improved by the city. This proposition assumed by the appellant is not supported by the facts dis condition for public use and travel, there can be no doubt of its duty to remove obstructions erected in close proximity to the sidewalk which endanger the use thereof by pedestrians; and that for a breach of such duty an action will lie in favor of one injured while using the sidewalk in the usual and ordinary manner. [3] The wire netting was placed in the west side parking flush with the cement sidewalk. Its existence so close to the pathway was a menacing danger to traveling pedestrians— particularly so on dark and stormy nights. Moreover, it had remained in this position for a period of time that rendered its presence a nuisance. The record shows the plaintiff was using the sidewalk in the ordinary manner: "Q. Did you, or did you not, attempt, to use counsel's expression, to cut across lots and go in from the sidewalk to the polling place? A. No, sir; I followed the sidewalk right up to where it turned into the house, right on the corner of the sidewalk and the cross-road, and my foot caught in the netting. Q. Were you off of the cement sidewalk at all? A. No, sir." Under such circumstances, the cause was (Mo.) 187 S. W. 45; [4] There was no error in refusing to give the instructions requested by appellant. Nor is there any merit in the contention that a new trial should have been granted because the instructions given were so conflicting as to confuse and mislead the jury. The conflict, if any, arose because of the giving of plat which showed on its face the extent of the acreage to be conveyed. That appellants visited the property on two occasions prior to the consummation of the sale; the true boundaries of the premises being accurately pointed out by the respondents. That no fiduciary relation existed between the parties, and no artifice or fraud was practiced to prevent a thorough and complete examination. defining the duty of the city with respect to | stract furnished by respondents contained a the portions of the street not used for public travel. Since the injury occurred where, under all the authorities, it was the city's duty to keep the place reasonably safe for ordinary travel-upon which subject the court properly instructed the jury-the error, if any, was harmless. Tham v. Steeb Shipping Co., 39 Wash. 271, 81 Pac. 711; City of Denver v. Stein, 25 Colo. 125, 53 Pac. 283. For the foregoing reasons, the judgment is And that the land together with certain peraffirmed. ELLIS, C. J., and FULLERTON, MAIN, and PARKER, JJ., concur. HEGBERG et al. v. TRIPP et ux. (Supreme Court of Washington. Jan. 7, 1918.) Where deed correctly described property by metes and bounds, stated that it contained 20 acres, more or less, that it lay in a triangular shape, and the boundaries were definitely marked on the surface, and the acreage was capable of ready measurement, and the abstract contained a plat showing on its face the extent of the acreage, and the vendees visited the property before the sale at which time the true boundaries were accurately pointed out, and there was no fiduciary relation, and no artifice or fraud was practiced, and the land was sold in gross, the vendees could not rescind because the tract contained 8 square rods less than 16 acres. Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge. sonal property thereon, was sold in gross; the consideration being in a lump sum for the entire property conveyed. No new questions are presented. The facts bring the case within the .rule of caveat emptor as announced in Conta v. Corgiat, 74 Wash. 28, 132 Pac. 746, where the authorities are collected and classified, upon the authority of which the judgment is affirmed. ELLIS, C. J., and FULLERTON, MAIN, and PARKER, JJ., concur. (No. 14541.) In re GEISSLER'S ESTATE. Relative to what occurred as to taking exceptions at the time the judge signed the findings of fact, conclusions of law, and decree. treating the question as one to be determined on the weight of evidence on application to the Supreme Court for writ prohibiting the insertion of certain matter in the statement of facts for appeal, the witnesses, being equally divided. and nothing to show that any are not as reputable as the others, the judge's statement should To JUDGE Action by William Hegberg and another against George Tripp and wife. Judgment be all-controlling. for defendants, and plaintiffs appeal. firmed. Af-2. PROHIBITION Morris B. Sachs and W. R. Crawford, both of Seattle, for appellants. Edward Brady and Ryan & Desmond, all of Seattle, for respondents. WEBSTER, J. This action was brought by appellants to rescind a sale of real estate conveyed to them by respondents, upon the ground of certain alleged false representations made by the vendors concerning the amount of land involved in the transaction, in that respondents represented the premises to contain 20 acres, more or less, when in fact the tract conveyed contained 8 square rods less than 16 acres. The trial court rendered judgment in respondents' favor, dismissing the action. The plaintiffs have appealed. GROUNDS. 5(2) That the trial judge is going to insert in the statement of facts for appeal a certificate made and filed with the records by him that an apparently regular entry on the record was inadvertently made, the effect of which can best be considered at the hearing on the merits. furnishes no occasion for resort to writ of prohibition. 3. COURTS MODE. 116(5)-RECORDS-CORRECTION— The proper method of correcting or supplying omission in the record, after it has gone out of the trial judge's possession and become a part of the files in the clerk's possession, is by formal order on a formal motion with notice, and not by indorsement on the findings and conclusions on application of one of the parties without notice to the other. Department 1. In the matter of the estate On original of Agnes Geissler, deceased. application for prohibition to the trial judge. Peremptory writ denied. W. M. Nevins, of Odessa, and Merritt, Lantry & Merritt, of Spokane, for contestant. Zent & Powell, of Spokane, and C. W. Rathbun, of Ritzville, for contestee. It is not essential to enter upon a detailed discussion of the evidence. The record discloses: That the deed correctly described the property by metes and bounds; the tract containing 20 acres, more or less. That it lies in a triangular shape; the boundaries being definitely marked on the surface, the acreage FULLERTON, J. Agnes Geissler died capable of ready measurement. That the ab- leaving a considerable estate and a purported On will devising the same. The will was admit- "Contestees excepted to findings of fact 1, 2, 3, and 4, and to conclusions of law 1 and 2, and the same are allowed. John Truax, Judge." of fact 1, 2, 3, and 4, and to conclusions of law 1 and 2, and the same are allowed. John Truax, Judge.' "I further certify that said exceptions, as noted by me, as stated, were taken at the time the said findings of fact, conclusions of law and decree were signed; but were taken in the manner stated for the first time on October 11, 1917, and at that time I added said statement to said findings and conclusions. "Done. John Truax, Judge." This certificate was made and filed in the absence of and without notice to the contestee or his counsel. In the meantime the contestee had given notice of appeal to this court and subsequently filed and served his proposed statement of facts. The proposed statement did not include this certificate of the judge, and the contestant presented it and asked to have it inserted as an amendment to the statement. The insertion of the proposed matter was opposed by the contestee. and, upon the announcement of the court that the matter would be inserted, the contestee applied to this court for a writ prohibiting him from so doing. An alternative writ was issued by this court and a time appointed for a hearing to determine whether or not the writ should be made peremptory. The case is now before us on the latter question. The contestee, in disregard of the rules of the court, has filed no brief in support of his application, nor did he appear at the time appointed for the hearing to present the application orally, and we are left to gather the reasons upon which the application rests from the statement of the petition for the writ and the affidavits and other papers filed in support thereof. These tend to show that the contestee did in fact through his counsel, at the time the findings of fact, conclusions of Later on counsel for the contestant, learn- law, and decree were signed by the judge, ing of the entry so made, appeared before the orally except to the particular findings and judge and claimed that counsel for the contes- conclusions afterwards noted by the judge, tee, while he had stated, at the time the and that the judge's after-notation of the findings, conclusions, and decree were signed, exceptions was but the correction of an inthat he desired an exception, did not then advertence occurring at that time. On the specify the particular parts of the record to other hand, the judge returns that, while he which he excepted. This claim was in ac- inquired of contestee's counsel at the time of cordance with the recollection of the judge, the signing of the several papers whether whereupon he made and filed with the rec-in the affirmative, he was not asked to note exceptions were desired and was answered ords in the cause the following certificate: them upon the findings, nor was he then informed as to the particular findings or conclusion to which exceptions were desired. In this he is supported by the affidavit of one of contestant's counsel and the affidavit of a listener who was present and overheard the entire proceedings. “I, John Truax, judge of the superior court of Adams county, Washington, and the judge who tried the above-entitled matter involving the validity of the alleged last will and testament of Agnes Geissler, deceased, do hereby certify that on September 24, 1917, when the findings of fact and conclusions of law therein were signed by me, J. W. Merritt, of counsel for the respondents, was present in court, and at that [1] Treating the question as one to be detime stated that respondents excepted, without termined upon the weight of the evidence bespecifying the order or parts of order or the findings of fact or the part thereof, as made by fore us, we cannot find that the judge's verthe court, to which he excepted; that thereafter sion of the facts is erroneous. The witnesses and on October 11, 1917, the said J. W. Merritt are equally divided, and there is nothing to appeared before me in the absence of counsel show that those upon the one side are not as for contestant and requested me to note contestee's exceptions to the findings of fact and reputable as those upon the other. In such conclusions of law made and signed by me on Ia case the judge's statement ought to be allSeptember 24, 1917, and filed September 25, controlling. He has no personal interest in 1917; and thereupon I wrote on the bottom of the matter, and no duty other than to report the findings of fact and conclusions of law, which had been signed and filed as aforesaid, the facts as he remembers them. This is not nesses. On the contrary, we have no doubt that the makers of the affidavits related the facts truly as they were remembered. But there are conflicting versions between which the court must decide, and it adopts that version which seems to it to be supported by the greater probability. [2] It may be further gathered from the contestee's petition that he regards the matter sought to be inserted in the statement of facts as not a part of the proceedings occurring at the trial of the cause, and hence without place in a statement of facts, and subject for that reason to be prohibited. But the purpose of the recital is plain-it was intended to show that an apparently regular entry on the record was inadvertently made. This being so, its effect can best be considered at the hearing upon the merits and no occasion is furnished for resorting to the extraordinary writ of prohibition. [3] In the interest of good practice it may be well to say that the methods adopted by the parties to correct and supply the record were hardly regular. In the first instance the contestee should not have sought to correct, and the judge should not have attempted to correct, a supposed inadvertence by indorsing matter on the findings and conclusions after they had been signed and filed, much less ought it to have been done without notice to and in absence of the opposing parties or their attorneys. The record was then out of the possession of the judge. It had become a part of the files in the cause in the possession of the clerk, and the proper method of correcting it or supplying omissions therein was by a formal motion heard upon notice and a formal order entered in accordance with the facts as they were made to appear. In the second instance the first irregular order should not have been amended by another equally irregular. There were possibly a number of methods consistent with good practice through which a correct result could plans and specifications for proposed highways Since under Rem. Code 1915, § 5879-7, all are subject to supervision of state highway commissioner, a county commissioner could not bind county as to material to be used in paving highway. 4. HIGHWAYS 113(3)-PAVING MATERIAL CONTRACTS-RATIFICATION. Where a county had power to condemn a right of way for a highway under Rem. Code 1915, 88 5879-8, 5879-18, 5879-19, acceptance and retention of right of way did not ratify a void agreement of a single county commissioner that brick would be used for paving. 5. HIGHWAYS 113(3) - CONTRACTS - INVALIDITY RATIFICATION. In order to constitute ratification, the act must be accompanied by a manifestation of intent to ratify or must be of such nature as to be utterly inconsistent with any other course of conduct. 6. HIGHWAYS DAMAGES. 115-PAVING CONTRACTS — Where a single county commissioner made a void agreement that a highway should be paved with brick, and the other parties sought injunetion to prevent paving with other material which was denied, they were not entitled to damages; there being no valid contractual duty. En Banc. Appeal from Superior Court, King County; King Dykeman, Judge. Injunction by the Town of Tukwila against King County and others, wherein Minnie M. Lutz intervenes. Judgment dismissing the suit, and plaintiff and intervener appeal. Affirmed. R. M. Jones, all of Seattle, for appellants. Geo. H. Rummens, John F. Murphy, and Alfred H. Lundin, Edwin C. Ewing, and Peters & Powell, all of Seattle, for respond ents. HOLCOMB, J. This action was brought have been reached, but neither of these con- by Tukwila, a municipal corporation of the templates a proceeding wholly ex parte. The alternative writ is quashed, and the application for a peremptory writ denied. fourth class, Minnie M. Lutz intervening, to restrain King county and the board of county commissioners thereof from paving ELLIS, C. J., and PARKER, MAIN, and limits of the town of Tukwila with any other a portion of a highway within the corporate WEBSTER, JJ., concur. TOWN OF TUKWILA et al. v. KING COUNTY et al. (No. 14297.) (Supreme Court of Washington. Jan. 12, 1918.) 1. HIGHWAYS 113(2) CONSTRUCTION POWERS OF OFFICERS. It was not within the apparent scope of authority of right of way agent or deputy prosecuting attorney authorized to secure right of way for highway to bind the county as to the character of the paving to be used. material than first-class paving brick. From a judgment of the trial court dismissing the action, both plaintiff and the intervener have appealed. About May 20, 1913, the board of county commissioners of King county by resolution decided to condemn a right of way for a portion of what is known as the Seattle-Tacoma (Pacific) highway. The part of the right of way desired was on the streets of the town of Tukwila and across the property of the intervener. The county right of way agent and M. L. Hamilton, one of the county comWhere a county was divided into three road missioners, together with the deputy prosedistricts with a commissioner from each dis- cuting attorney of King county, represented trict, any agreement by which the commissioners to the mayor and city council of Tukwila 2. HIGHWAYS 113(3) CONSTRUCTION POWERS OF OFFICERS. and to the intervener that the highway | appears that two of the commissioners stated would be paved with first-class brick. Re- in advance that the board would ratify whatlying, as they contend, upon these representa- ever was done by the third commissioner. tions and the promise that the highway We are not inclined to extend the doctrine would be so constructed, the town by ordi- of that case. In the Green Case the contract nance granted King county a right of way was held void, a recovery being allowed on on its streets, and the intervener deeded a a quantum meruit; while in the present case strip of land from her lots in Tukwila to appellants are seeking to establish a contract the county without compensation. There and to have it specifically enforced or violawas no stipulation in the ordinance granting tion thereof enjoined. See, also, Bier v. the right of way, or in the deed from the in- Clements, 167 Pac. 903. tervener, as to the character of the paving to be laid, nor was any formal action in that regard taken by the county cominissioners prior to the securing of this right of way. The county took possession of, and at the time of trial had graded, the right of way. When it developed that the board of county commissioners intended to pave this portion of the highway with concrete, and not with brick, the present action was instituted. [3] When we consider that, under section 5879-7, Rem. Code, all plans and specifications for proposed highways are subject to the supervision of the state highway commissioner, it is still more apparent that a single commissioner had no authority to bind the county on a matter in which the action of the board itself is subject to supervision. [4] Appellants further contend that, even if the agreement made by the right of way agent and one of the commissioners was not binding when originally made, it became binding when the board, with full knowledge of these representations and promises, accept session of the right of way granted thereby. This contention is made on the theory that by accepting and retaining the right of way with knowledge of the promises that induced appellants to grant it the board of county commissioners ratified the promises, and thereby bound the county to construct the highway with brick paving. [1] Clearly it was not within the apparent scope of the authority of the right of way agent or the deputy prosecuting attorney to bind the county as to the character of the paved the deed and franchise and retained posing to be used. The right of way agent's duties were limited to procuring deeds for the right of way and ascertaining what compensation would be accepted by the property owners without resort to condemnation proceedings, and the deputy prosecuting attorney's duties were limited to seeing that the deeds were in proper form, and attending to other legal formalities. Their acts were all subject to approval or disapproval by the board of commissioners. The right of way agent's only authority for making such representations and promises is found in the oral instructions of Mr. Hamilton, the comInissioner from the district in which the high-highway by the county cannot be construed way was to be constructed. [2] King county is divided into three districts, the north, central, and south, there being one commissioner from each district. The central district comprises the city of Seattle, in which no highways are constructed by the county. Appellants insist that it has been the custom for the commissioners from the north and south districts to have exclusive control over the construction of the roads and highways in their respective districts, and suggest that there was an understanding by which they agreed in advance to vote in support of each other's recommendations. We do not so read the testimony. But, even if it were so, the county is entitled to have each commissioner exercise his own independent judgment on each matter that is presented to the board. Any agreement by which a commissioner bartered away his discretion would be void as against public policy, and no one could acquire any rights thereunder. Counsel for appellants cite Robertson v. King County, 20 Wash. 259, 55 Pac. 52, and Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226, 114 Pac. 457, but neither of these Even conceding that the county commissioners have power to contract with the various property owners as to the type of pavement which shall be used on the highways across their lands, which we are not inclined to do, still we think that the retention of the as a ratification. While the general rule is well established that a principal cannot accept the benefits of a contract made by an agent without ratifying it, it is equally well established that this rule has no application where the principal has an independent legal right to retain the benefits. 31 Cyc. 1267. Tukwila. In the present case King county had the power to condemn a right of way for the purposes of this highway across the lands of the intervener and through a municipal corporation of the fourth class such as the town of Rem. Code, §§ 5879-8, 5879-18, 5879-19; State ex rel. Floyd v. Superior Court, 86 Wash. 410, 150 Pac. 618. Hence we find the county retaining possession of lands which it could have acquired by condemnation proceedings. We have repeatedly held that, where one such as the county in this case has the right to condemn property and has taken possession of it, the original owner's only remedy is to recover compensation for the land so taken, and that such owner cannot interfere with the possession by injunction or other proceeding. Kakeldy v. Columbia & P. S. R. Co., 37 Wash. 675, 80 Pac. |