ples of equity. We think the true rule is as stated in Western Loan & Savings Co. v. Waisman, 32 Wash. 644, 73 Pac. 703, where the court said: "That the evidence required to overcome a certificate of acknowledgment must be clear and convincing is generally held, and it may well be said that where fraud or duress is not shown as a circumstance attending an acknowledgment, the unsupported testimony of parties directly interested in the impeachment is not of that clear and convincing character that is necessary to overcome a record and an official act." The doctrine is sustained in Drew v. Bouffleur, 69 Wash. 610, 125 Pac. 947, and State v. Hatfield, 65 Wash. 550, 118 Pac. 735, Ann. Cas. 1913B, 895. See, also, 1 R. C. L. p. 294, as follows: [4, 5] The only question now necessary for us to decide is whether appellant is entitled to a deficiency judgment against defendants Chesterley. The law is that a deed taken subject to prior liens does not bind the grantee to pay, unless it is stated in the instrument or is shown by independent evidence that it was taken in fact subject to the payment of the existing incumbrance, or that the existing incumbrance was a part of the purchase price. A It seems clear to us that the assumption clause in the Chesterley deed did not bind the vendees to pay or make them personally liable for any lien or incumbrance other than the mortgage owned by the intervener. The deed was made subject to liens generally, and subject to a particular lien "Impeachability for Fraud, Accident, or Mis- which is described and which the grantee astake. It is a maxim of the law that fraud viti-sumed to pay. Or if the language be doubtates all things, and certificates of acknowledg- ful, appellant is in no better position. ment are no exception to the rule. The other grounds upon which written instruments generally are open to attack may also be made the basis for the impeachment of certificates by the introduction of parol evidence. Many courts, reasoning that the officer taking an acknowledgment acts judicially, have asserted that if a certificate is regular on its face, parol evidence may not be received to contradict it in the absence of an allegation of fraud, mistake, collusion, imposition, or the like. According to this view, certificates are not entitled to the precise degree of credit that is given to judg: ments of courts of record; but they are held to be entitled to much of the weight and authority of records, and to be subject with some modifications to the same general principles of construction and intendment which apply to other matters of the same class." All the books agree, however, that the evidence offered to impeach an acknowledgment regular in form must be clear, cogent, and convincing. 1 Cyc. at page 623, lays down the rule: "Where a certificate of acknowledgment is regular on its face, a strong presumption exists in favor of its truth. The proof to overthrow a certificate regular on its face must be so clear, strong, and convincing as to exclude every reasonable doubt as to the falsity of the certificate." [3] In the case at bar, while it is true that the defendants Hawkins deny the mortgage, their testimony is not supported by any other witness, nor do there seem to be any equities which can be said to sustain their contention. On the other hand, their testimony is denied by all who were present, and is challenged by all the concomitant facts and circumstances. A pending action was dismissed; a judgment was satisfied which operated to release the property from the judgment lien. The mortgage was recorded and became a matter of constructive notice to the purported makers, and it may be fairly inferred from the record, a matter of notice to their attorney, the present intervener, and the defendants Chesterley. We conclude that the defendants and the intervener have not sustained the issue tendered by them by evidence that is strong, convincing, and cogent. vendee is bound under such covenants only when it is clear that it was his intention to assume and pay a lien or incumbrance. Jones on Mortgages, § 748, and citations. 27 Cyc. p. 1343. From this it follows that if it be doubtful, the doubt will be resolved in favor of the vendee, and a recovery against him will be denied. The court below held jurisdiction of the case until the case of Union Central Life Insurance Co. v. Hawkins, 84 Wash. 605, 147 Pac. 199, should be finally decided in this court in order to determine whether the intervener was entitled to the full amount of his mortgage, less the sum paid. That case being disposed of favorably to the intervener's clients, he is entitled to a foreclosure of his lien. The case is reversed and remanded, with directions to enter a decree that will protect the lien of appellant and the lien of the intervener in the order of their priority. MORRIS, C. J., and MOUNT, ELLIS, and FULLERTON, JJ., concur. (89 Wash. 254) WELCH et ux. v. PETLEY et al. (No. 12889.) (Supreme Court of Washington. Jan. 11, 1916.) 1. MUNICIPAL CORPORATIONS 821-STREET IMPROVEMENT - PERSONAL INJURY - NEGLIGENCE-SUBMISSION TO JURY. and a city for personal injuries from a defective Where, in an action against a contractor sidewalk, it appeared that the contractor was grading the street under a contract therefor with the city and occupied a portion of the street for that purpose near the point of injury with machinery and a coal pile; that he had barricaded the street but not the sidewalk, which was left open for the public, and on the night of the accident he had hung red lanterns no lights or warning signals at a point where on the machinery and coal pile, but had placed he had that day torn up the sidewalk, which was part of his work, and plaintiff, knowing that the grading was being done, but not knowing that the sidewalk was torn up at that point, was caused to fall by such condition of the sidewalk, the place being dimly lighted by distant street For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-10 [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1757; Dec. Dig. 821.] lights. The case was properly submitted to the | but left lying flat on the ground at the time jury on the question of the sufficiency of the mentioned, from the donkey engine south for barriers and warnings with regard to persons using the sidewalk and on the question of plain- some distance. The contractor removed one tiff's negligence. of the planks from the narrow sidewalk on the easterly side of Thirty-Seventh avenue south, at the point about 90 feet south from Hudson street where it was about 20 inches from the ground, and left no barrier or light or other warning to guard that place, and at that place, after night or on the night in question, it was very dark. 2. APPEAL AND ERROR 977-MOTION FOR NEW TRIAL-OVERRULING-DISCRETION. Where, in an action for personal injuries, the court below overruled defendant's motion for new trial for developments in plaintiff's condition subsequent to the rendition of a judgment in her favor, such ruling will not be interfered with on appeal, in the absence of a clear abuse of discretion. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. 977.] Department 2. Appeal from Superior Court, King County; King Dykeman, Judge. Action by Albert Welch and Ruby Welch, his wife, against B. H. Petley and others, to recover for personal injuries. Judgment for plaintiffs, and defendants appeal. Affirmed. E. P. Whiting, Jas. E. Bradford, and F. M. Egan, all of Seattle, for appellants. Green & Chester, of Seattle, for respondents. At about 10:30 in the night of June 20th, Mrs. Welch left the southwest corner of the intersection of Hudson street and ThirtySeventh avenue south, walking very rapidly, or almost running, diagonally across Thirty-Seventh avenue south, to the easterly side of the street, reaching the line of the sidewalk on that side a little distance north of the place where the plank had been removed, walked to that place, and not knowing previously and not being able to see at the time that the plank had been removed, stepped down, fell, and sustained severe injuries. A part of the contractor's work was to remove the plank sidewalk and grade and improve the street its entire width. Mrs. Welch had been familiar with the street and HOLCOMB, J. Eighteen errors are assigned by the appellants, but they are argued the sidewalk in this locality about three under three general propositions: (1) Wheth-years, but had not been along there that day, er or not appellants were guilty of negli- and was unaware of the removal of a part gence; (2) whether or not respondent Ruby of the walk. There was an arc light at the Welch was guilty of contributory negligence; and (3) whether the court erred in giving and in refusing certain instructions. southeast corner of the street intersection mentioned, extending on an arm from a wire from Hudson street on Thirty-Seventh avenue, no board nailed up, nor any sign, signal, or warning to indicate that the walk was not to be used by the public. There was no barrier or sign of any kind at the south end of the block to indicate that the street was closed to travel. [1] On and prior to June 20, 1914, ThirtySeventh avenue south in Seattle was a public street, with a plank sidewalk along the easterly side thereof for some distance south of Hudson street, consisting of two rows of wide planks laid parallel side by side, and which had been used by respondents and pedestrians generally for a long time. At a point about 90 feet south of the south line of Hudson street the plank sidewalk was ele-light at the entrance to the walk going south vated about 20 inches from the ground. The city had let a contract to Petley for the grading of Thirty-Seventh avenue south, and on June 17, 1914, the contractor had taken possession of the street under his contract and, at the intersection of the street with IIudson street just south of the south line thereof, he had placed a platform on skids, 9 feet 9 inches wide and 35 or 40 feet long, on which was mounted a donkey engine and boilers. Just north of the south line of Hudson street and its intersection with Thirty-Seventh avenue south, a car of coal was placed on a track, and a large pile of coal was unloaded therefrom on the ground close to the platform and extending across the center of the street, leaving space sufficient at each end of the pile for the sidewalk and for teams to pass between the sidewalks and the coal pile up and down Thirty-Seventh avenue south. There were cables extended, 1. Appellants rely upon the decisions in Hunter v. Montesano, 60 Wash. 489, 111 Pac. 571, Ann. Cas. 1912B, 955, Jones v. Collins, 177 Mass. 444, 59 N. E. 64, and Compton v. Town of Revere, 179 Mass. 413, 60 N. E. 931, to the points that obstructions so placed, and of such nature as to be calculated to give ample notice to the public that the street was in process of construction and not open for travel, thereby suspended the legal liability for not keeping the street in a safe condition for travel; and that a person so traveling such street assumes the hazard incident thereto. These contentions are sound, but do the facts here come within them? In the Hunter Case the street had been in process of construction for two or three months, of which plaintiff was well aware, being employed in the daytime in a livery stable situate thereon; the accident occurred upon a dark, windy, rainy night; he knew that the street was all torn up at the place where he attempted to travel; he knew that there was a barrier extending from curbing to curbing at each end of the block on Main street which was being paved; he saw the barriers and knew the condition of the street. Assuredly, as was said by the court, per Gose, J., "he was guilty of the grossest negligence." In the case it was further pointed out that "Main street outside the sidewalk area was properly barricaded." Plaintiff in that case was not traveling upon the sidewalk area, but in the main portion of the street. In Jones v. Collins, supra, it was stated by the court there were barriers across each end of the street that was being improved, and across the ends of each street leading into it, and had been up for many days previous to the accident, and "were so placed, and so numerous, and of such a nature as to be well calculated to give ample notice to the public that the street was in process of construction, and was not open for travel." In the Compton Case it was pointed out that: "This is not the case of a person entering upon a street in the nighttime, which he has no reason to suppose defective, but of a person entering a street in the daytime, the grade of which he knows is being changed, and which he also knows is not graded or fit for public travel." Again: "It is obvious that the plaintiff knew all that there was to know about the condition of things, and, in attempting to use the street, did it at his peril." These cases, therefore, all differ from the facts in the case now under consideration. From them and many others in this and other states, as was said in the Hunter Case: "The principle which may be deduced is that a city is not required to so barricade a street as to preclude injury. It discharges the full measure of its duty when it gives a plain warning that there is danger in traveling a street." * lant fell, with the knowledge and approval of the city. * Was the appellant exercising reasonable care in view of all the attending circumstances? The jury, upon competent testimony, resolved this question in her favor. Where the public use a street upon the invitation of the city, either express or clearly implied, the duty devolves upon the city to use reasonable care to keep it in a reasonably safe condition for travel. |* * A traveler is not required to avoid a particular street because there is another and safer one that he may take. He has a right to travel upon any street which the city leaves open for travel. * * * Where a city undertakes to improve a street, it is required to use reasonable precautions to guard the public from injury, and in doing so may, if necessary, temporarily close the street to public travel. It was incumbent upon the city to provide signals or warnings if the walk was in common use and dangerous, and it knew, or in the its condition." exercise of reasonable care ought to have known, dict was ordered. The case does not depart Judgment in favor of plaintiff on the verfrom the Hunter Case, but is clearly distinguishable therefrom and from the other cases cited and relied upon. In the present case the evidence showed that a man and his wife traversed the same that other persons were using the street, and sidewalk area immediately after Mrs. Welch, and in fact discovered her in the depression into which she fell. It was a proper case to go to the jury upon the questions of the sufficiency of the barriers and other warnings to notify the public of the suspension of travel upon the sidewalk area, and also upon the question of the negligence of Mrs. Welch. 2. It was upon the foregoing theory that the court instructed the jury, and of which There was no error, appellants complain. therefore, in the giving and refusing of instructions by the court. [2] 3. As to alleged subsequent developments as to the condition of Mrs. Welch, shown on motion for new trial, the court passed upon them as matters of fact, exercised his judicial discretion, and denied the this state that in such case, unless there is a motion. It has so frequently been held in clear and manifest abuse of discretion by the trial court, this court cannot and will not interfere, that no citation of cases is necessary. Judgment affirmed. MORRIS, C. J., and MAIN, PARKER, and BAUSMAN, JJ., concur. (89 Wash. 109) COOK V. STORY. (No. 12849.) (Supreme Court of Washington. Jan. 7, 1916.) 1. SALES 23-EXPRESS CONTRACT-RIGHT But a street is often closed to travel as to its main body, or to teams and vehicles, and not as to its sidewalks or to pedestrians. The case of Lautenschlager v. Seattle, 77 Wash. 12, 137 Pac. 323 (also written by Judge Gose), is more controlling here. Plaintiff recovered against both the city and the contractor. On motion of the city, judgment n. o. v. was granted in its favor. It was said: "We think the court erred in entering a judg- OF ACTION. ment non obstante in favor of the city. Whether the appellant was guilty of contributory neg-sories and act as the seller's agent in a certain ligence is a question of mixed law and fact. There is abundant evidence in the record which justified the jury in finding that the public were traveling the two-plank way, where the appel Where a tentative contract to buy accesterritory was rejected by the seller and a new contract sent to the buyer, which he rejected, the seller could not sue on the original tentative contract, as an express contract, for the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ELLIS, J. Action for the purchase price of certain automobile tires and tubes, which it is alleged were sold and delivered to the defendant by plaintiff's assignor under a written contract. The plaintiff's assignor, W. D. Newerf, doing business as W. D. Newerf Rubber Company, in San Francisco and Los Angeles, was the Pacific coast agent for the Miller Rubber Company, a corporation operating a tire factory at Akron, Ohio. One C. W. Sahland, a traveling salesman for the Newerf Company, met the defendant, Story, in Seattle on May 28, 1913, and with him arranged the details of a contract appointing Story as general agent and distributor for the Newerf Company in the sale of Miller tires, tubes, and accessories, the agency to cover the states of Washington, Idaho, and Montana. Shortly after this conference the parties went to Tacoma and at the office of Hugo Metzler, an attorney and secretary of the Auto Equipment Company, through which the defendant expected to supply the demand for Miller tires in that city, the defendant for himself, and Sahland for the Newerf Company, signed a tentative contract covering the three states for one year, subject to termination by either party on 90 days' notice. By this tentative contract the defendant was to maintain at his own expense an office and showroom in Seattle, carry a stock sufficient to meet the requirements of customers, and advertise the goods. The Newerf Company was to extend certain credit, furnish goods to the defendant at certain scheduled prices, allow certain trade and cash discounts, and make replacements of guaranteed tires on given terms. This agreement was signed in duplicate with the understanding that it was to be submitted to the Newerf Company for approval. Sahland throughout represented that he had no authority to finally approve the contract. This was testified to by the On defendant and was admitted by Sahland himself. A blank for such approval appears at the foot of the contract. Sahland retained both copies of the contract for the purpose of submission to the Newerf Company for approval, stating that if approved one copy would be returned by the company to the defendant. He testified that he did in fact turn both copies over to the company for approval. It is admitted that the contract. was never formally approved by the Newerf Company, and neither copy was ever returned to the defendant. On the contrary a new conmitted, and omitting from its operation the tract, materially differing from the one substate of Montana, was prepared in duplicate by the Newerf Company and sent to the defendant with a request that he sign and return it for execution by the company. July 2, 1913, the defendant wrote the Newerf Company, declining to sign the new contract on the ground that it was not in ac cordance with his agreement with Sahland, and declining to proceed further in the matter. He testified that he then canceled all orders, amounting to $4,000 or $5,000, which he had given, and the fact is not contradicted. Apparently all orders on which goods had not been delivered save one were treated as canceled. That order, which is the one here involved, arose as follows: On June 1, 1913, the Auto Equipment Company, through its president, Lindquist, had ordered through Sahland tires and tubes to the amount of $1,500 in anticipation of the races which were to take place at Tacoma in the first week of July. No word having been received from the order, the defendant on June 10th telegraphed the Newerf Company, among other things: "Wire Akron to ship me at Tacoma order prepared by Lindquist." The goods reached Tacoma about July 17th, billed to Miller Tire Company and Auto Equipment Company. Meanwhile, the Auto Equipment Company having been advised that Story had closed his place of business in Seattle and severed his relations with the Newerf Company sent one De Land to San Francisco to make some arrangement with the Newerf Company. On July 9, 1913, he received from that company the following, which is termed in the record a letter of credit: "San Francisco, Cal., July 9, 1913. "Auto Equipment Co., Tacoma, Wash.-Gentlemen: In accordance with verbal understanding with Mr. John De Land, we herewith grant you the privilege of selling Miller quality tires and tubes, also other accessories carried by us, in the state of Washington until such time as we may close this territory with E. H. Story, yourselves, or other parties. We will furnish you, during this time, a stock of Miller tires and tubes not to exceed the amount of $2,500. Such stock to be delivered either from San Francisco, Los Angeles, or Akron, Ohio, in order to give the best service in supplying said stock. - Your prices on Miller tires, during this time, to be 72 and 5 per cent. from the two attached lists, you to pay us on the tenth of each month for all sales made from stock of Miller tires fur nished by us, when a further 5 per cent. for cash will be allowed Yours very truly, [Signed] W. D. Newerf Rubber Co., per J. E. Newerf." He testified: "On the 9th of July they gave me this letter of credit. I returned to Sacramento, then came here and went into the Auto Equipment. Mr. Lindquist and Mr. Metzler told me there was a shipment down there for Auto Equipment. It was about the 17th or 18th of July that the goods were delivered to us. Newerf had told me it was on the road and would be delivered to us on the letter of credit which I had at the time. They told me that when I was in San Francisco, and said the Story deal was off." He also testified that before returning to Tacoma he went to Akron, Ohio, to arrange an agency for the Miller tires, and there met W. D. Newerf, who told him the same thing. Sahland, who was present at that interview, denied this, but admitted that De Land was then told that "the deal with Story was entirely canceled" and the New erf and Miller Companies were at liberty to give the Washington agency to the Auto Equipment Company. He There and different contract was sent to him. tract. Having itself repudiated or, what [2] The Newerf Company, before the arrival of the goods, having repudiated the contract upon the faith of which they were When the goods arrived in Tacoma the railroad company, for some reason not explained, notified Story of that fact, but he refused to accept them and refused to authorize their delivery to the Auto Equipment Company, stating in effect that he would have nothing to do with the matter. The chief clerk of the freight agent of the rail-ordered, the appellant was under no obligaroad company at Tacoma testified that on Story's refusal to accept the goods he sent a telegram to the agent of the B. & O. Railroad at Akron, Ohio, but was not permitted to state the contents of that telegram or what The respondent asserts that the contract reply he received. At any rate the goods were delivered to the Auto Equipment Com-forwarded to the appellant for execution was pany on July 17th. That company, as it a "consignment contract" and not a selling now appears, was then in failing circum- contract, the inference being that it was not stances and went into the hands of a receiv er soon afterwards. The court found, in substance, that the goods were sold and delivered to the defendant under the terms of the written contract, and that there was a balance of $1,399.02 due thereon, for which amount, with interest at 6 per cent. from August 30, 1913, judgment was entered. The defendant appeals. [1] The appellant contends that no express contract was ever consummated, and hence the action being on an express contract cannot be maintained. Under the evidence we are clear that the execution of the written contract sued upon was never consummated. The tentative agreement was signed with the understanding that it would have to be submitted to the Newerf Company for approval. It was never approved, but was expressly repudiated by Newerf. A new tion to accept them. He was under no obligation to thus lay himself open to the claim he had ratified the new one by continuing to now advanced as to the old contract, that receive goods. intended to take the place of the original agreement. This seems to be based upon a misconception of the record. It is true there had been some negotiations looking to a contract for taking goods on consignment, but the contract sent was by its terms a selling contract and bore a memorandum that it was "intended to take the place of the one signed and handed to Sahland May 28th." That such was its purpose Sahland himself testified. A letter in evidence from Newerf to Story so indicates. The respondent did not sue on a quantum valebat, nor was there any evidence directed to that issue. He sued upon an express contract, which he failed to prove. The judgment is reversed and the cause is remanded, with direction to dismiss. MORRIS, C. J., and CHADWICK, FUL LERTON, and MOUNT, JJ., concur. |