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Action by the Sound Construction & En- | exercised, as he did, his option to have the gineering Company against Joshua Green. building erected the four additional stories. Judgment for defendant, and plaintiff appeals. Affirmed.

Weter & Roberts, of Seattle, for appellant. Bronson, Robinson & Jones, of Seattle, for respondent.

MAIN, J. This action arises out of a building contract, and has for its basis a claim for an item in the sum of $4,078.40 as an extra. After the issues were framed the cause was tried to the court sitting without a jury, and resulted in a judgment dismissing the action. From this judgment, the plaintiff appeals.

The contract between the parties, except in particulars not here material, made the architect the arbiter or umpire for the purpose of deciding questions that might arise under the contract, and provided that the decision of the architect upon all such matters as between the owner and the architect should be final and binding. The architect construed the plans and specifications to call for the third elevator for the ten-story building. According to this construction the contractor would not be entitled to recover for the third elevator as an extra. According to the contention of the contractor the construction of the third elevator was not called for by the plans and specifications if the building should be erected to the height of ten stories.

On April 23, 1912, the respondent contracted with the appellant for the erection of a six-story building at the southwest corner of Fourth avenue and Pike street, in the city of It is not claimed in this case that the parSeattle, for the sum of $188,000. This build- ties did not have the right by contract to ing was to be constructed according to plans constitute the architect an umpire for the and specifications then agreed upon. There- purpose of settling disputes, and making his after, and before the construction of the decision final in the absence of fraud, arbibuilding was entered upon, it was decided to trary conduct, or palpable mistake; but it alter the original plans from what was known is claimed that the architect, in construing as slow-burning construction to reinforced the plans and specifications as calling for a concrete construction, with foundation and third elevator when the four additional stowalls sufficiently heavy to carry four addi-ries were added, acted arbitrarily, and did not tional stories, provided the owner should exercise an honest and independent judgment. elect to have the building erected ten stories Upon the trial of the cause the contractor instead of six. For the purpose of evidenc-produced a number of expert witnesses who ing this modification of the original contract a supplemental contract was entered into on June 25, 1912. This supplemental contract provided that the contractor would build the four additional stories in accordance with the specifications for the sum of $86,496, provided the owner should declare his intention of having these stories added before the seventh floor slab should be completed. Plans or contract drawings were signed by the parties. Under the contract for the six-story structure two elevators were to be installed, and the building was so constructed that a third elevator could be added. If the building was erected only six stories, the space for the third elevator was to be used for other purposes.

testified that the plans and specifications could not reasonably be read to call for the construction of a third elevator when the four additional stories were added. The owner, the respondent, produced a number of expert witnesses who testified that the proper reading of the plans and specifications required the contractor to make the construction of the third elevator for the ten-story building. The trial court found that the contract, plans, and specifications reasonably meant that, if the additional stories were added the third elevator was to be installed, and that the decision of the architect was not fraudulent, arbitrary, or the result of palpable mistake on his part.

The question here is not whether the archiThe owner within the time specified in the tect can read into the plans and specifications supplemental contract notified the contractor what is not found there, and thus, in effect, that he desired the building erected to ten make a new contract for the parties, but is stories instead of six. The architect, acting whether the architect acted arbitrarily, and for the owner, then directed the contractor did not exercise an honest and independent to construct the building for the third eleva- judgment in construing the plans and specitor. The ten-story building was erected, fications as calling for the third elevator. and three elevators provided for. In the A careful study of the plans and specificaconstruction of the three elevators the con- tions lead us to the conclusion that the architractor was not required to remove any previ-tect's construction of them was not arbitrary, ous construction. His claim as an extra for this work is based upon constructive work ouly.

The controversy in this case is over the claim by the contractor that the third elevator was an extra. The question is whether the plans and specifications required the in

and that he is not guilty of having failed to exercise an honest and independent judgment. It is doubtless true that, taking the plans and specifications as they are, the minds of men may honestly and reasonably differ as to their construction; but this would not be sufficient to overturn the judgment of

both of Bellingham, for appellant. George Livesey, of Bellingham, for respondents.

ade the arbiter to settle questions that William J. Biggar and Thomas R. Waters, ight arise, and whose decision should be al and conclusive upon the parties. Had e plans and specifications been such that ey would bear reasonably only one conruction, and that was the opposite from hat given by the architect, a different ques-upon an oral agreement made by the defendon would be presented.

The judgment will be affirmed.

MOUNT, J. This action was brought to recover a balance of $404.12 alleged to be due

ant with the plaintiffs, whereby the defendant agreed to purchase certain real estate, and all the parties agreed to sell the same,

MORRIS, C. J., and BAUSMAN, HOL and to divide the profits equally between COMB, and PARKER, JJ., concur.

89 Wash. 418)

SMITH et al. v. IMHOFF. (No. 12765.) Supreme Court of Washington. Jan. 28, 1916.) 1. TRUSTS 17, 18-EXPRESS TRUST IN REALTY-PROOF BY PAROL.

An express trust in real estate cannot be proven by parol.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 15-24; Dec. Dig. 17, 18.] 2. PARTNERSHIP 20-TRANSACTION IN REALTY-CONSTRUCTION OF AGREEMENT.

An oral agreement whereby plaintiffs, who had property listed with them for sale for $1,800, agreed to forego their commission of $90 if defendant would purchase it at $1,710, and that upon a resale, and after repaying defendant the money he had invested, the profits should be divided equally between them, constituted a special partnership purchase of the property.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 6, 7; Dec. Dig. 20.]

3. FRAUDS, STATUTE OF 56-PARTNERSHIP TRANSACTION IN REALTY-PROOF BY PAROL -"CONTRACT FOR SALE OF REALTY."

Such special partnership purchase was not a contract for the sale or transfer of realty, required to be in writing, but might be proven by parol.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 83-89, 136-138; Dec. Dig. 56.

For other definitions, see Words and Phrases, Second Series, Agreement for Sale of Real Es tate.]

4. PARTNERSHIP 86
LAND-PROFITS.

TRANSACTION IN

Under such agreement, executed by defendant's payment of the purchase price of the land, less the plaintiffs' usual commission on the understanding that the property should be held and sold at a profit, to be shared equally between the parties, plaintiffs, after a sale at a profit, were entitled to one-half of the same. [Ed. Note. For other cases, see Partnership, Cent. Dig. § 134; Dec. Dig. 86.] 5. PARTNERSHIP

122-RELATION

QUES

TION FOR JURY. Upon undisputed facts with reference to an agreement for the purchase and sale of land and a division of the profits, it was for the court to say whether a partnership existed with reference to such land.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 185, 186; Dec. Dig. 122.]

Department 1. Appeal from Superior Court, Whatcom County; William H. Pemberton, Judge.

Action by C. M. Smith and others against Charles Imhoff. Judgment for plaintiffs, and defendant appeals. Affirmed.

the plaintiffs and the defendant. Upon issues joined the case was tried to the court and a jury. At the conclusion of the plaintiffs' evidence, and again at the conclusion of all the evidence, the defendant moved for a directed verdict. These motions were denied. The case was submitted to the jury, and a verdict was returned in favor of the plaintiffs for the sum of $265.15. After a motion for a new trial was denied, a judgment was entered in favor of the plaintiffs. The defendant has appealed from that judgment.

The facts are as follows: In January, 1909, the plaintiffs, who were engaged in the real estate business, had listed with them for sale the real estate in question for the sum of $1,800. Their commission for the sale of the property was to be 5 per cent., he would purchase this property they would or $90. They advised the appellant that if deduct their commission, so that the purchase price would be $1,710 net to him; that if he would purchase it, and survey it into 20-acre tracts, the plaintiffs, together with the defendant, would find a purchaser, repay to the defendant the money he had paid as the purchase price, for surveying, and the expenses of keeping the property, and that then the plaintiffs and the defendant would divide the profits. The appellant thereupon purchased the property for $1,710, and took a deed in his own name. after the plaintiffs sold the timber upon the land separately, and afterwards the land itself was sold. The total amount received for the land and the timber was $4,684.96. The defendant, prior to the sale, had paid out for surveying, taxes, and other expenses, something over $300, so that the total amount paid by him upon the land was $2,176.21. There is some dispute in the evidence as to the amount that was paid out by the defendant.

There

The complaint, after alleging the copartnership of the plaintiffs, and that they had the real estate listed for sale upon commission, alleged as follows:

"That at said time plaintiffs and said W. I. above-described property should be purchased by Brisbin agreed orally with defendant that the all of said parties and the title thereto was to be taken in the name of defendant. That at

the time of said purchase it was understood and agreed by all of said parties that defendant was to advance the price to be paid for said property, to wit, $1,710. And it was further un

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

therefore, be enforced, while the appellant contends that a parol agreement of this kind can be enforced. It cannot be questioned that there is conflict of decision on this point."

derstood and agreed that all of said parties | visions of the statute of frauds, and cannot, should use their best efforts to make an advantageous sale of said property, and that when a sale was made the first moneys derived out of said property should be used by said parties to repay to defendant such moneys as he might have paid on said property, and that any surplus over and above the amount of money paid by defendant on said property should be divided equally between plaintiffs and said W. I. Brisbin on the one side and defend

ant on the other."

The principal point presented upon this appeal by the appellant is to the effect that this alleged contract, being an oral agreement for an interest in real estate, cannot be proved by parol; that it was the duty of the trial court for that reason to direct a verdict for the defendant at the close of the plaintiffs' case, and also at the close of all the evidence in the case.

Then the court referred to the case of Smith v. Burnham, 3 Sum. 435, and Dale v. Hamilton, 5 Hare, 369. In the latter case it was held that a partnership agreement, where the parties were interested in a speculation for buying and improving land for sale, may be proven without being evidenced by a writing signed by the parties to be charged. This court then said:

"We think the weight of authority, and especially modern authority, supports Dale v. Hamilton, and we are inclined to follow the doctrine there announced."

And in Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370, 11 L. R. A. 149, the Supreme Court of Oregon discusses at length the authorities upon this question, and concludes:

[1] A large number of authorities are cited in the appellant's brief to the effect that an express trust in real estate cannot be "From a careful examination of the authorproven by parol. It is argued that, if this ities, we are of the opinion that a valid concontract is anything, it is an express trust. tract of partnership for the purpose of speculatThere can be no doubt that an express trusting in real estate may be made by parol."

in real estate cannot be proven by parol. This court has many times so held. Malmo v. Washington Rendering, etc., Co., 79 Wash. 534, 140 Pac. 569.

case.

[2] But we think the question of a trust, either express or ex maleficio, is not in this The evidence for both the plaintiffs and the defendant upon the trial shows conclusively that the agreement between the parties was to the effect alleged in the complaint. It was an oral agreement that, if the defendant would purchase the property at the price of $1,710, the plaintiffs would forego their commission of $90, to which they would be entitled if the property were sold to other parties at the list price, and upon a resale of the property, after paying the defendant the money which he had invested therein, that the profits should be divided equally between them. There is apparently no dispute upon this question. The evidence is clear and conclusive to that effect. In other words, we think it is clear from these facts that these parties entered into a special partnership for the purchase and sale of the real estate. The defendant advanced $1,710. The plaintiffs reduced their commission by $90, so that the plaintiffs had an investment of $90, while the defendant had an investment of $1,710 in the purchase price. It was clearly, we think, a special partnership purchase of this particular piece of property. [3] It was not necessary that the partnership agreement should be in writing.

"It is generally held that agreements to share profits and losses arising from the purchase and sale of real estate are not contracts for the sale or transfer of interests in land and need not be in writing." 20 Cyc. p. 237.

This court in Case v. Seger, 4 Wash. 492,

30 Pac. 646, a case similar to this, said:

"It is contended by the respondents that an agreement to purchase and sell land, which is

We are satisfied from the reasoning in these cases that the agreement made here was a valid agreement which could be proved by parol, and did not come within the statute of frauds, and does not involve the question of a trust, either express or resulting. We are of the opinion, therefore, that the trial court properly submitted the case to the jury.

[4] Several assignments of error in the appellant's brief are based upon instructions which were given by the court, or requested by the defendant and refused to be given by

the court. The trial court instructed the

jury, in substance, that if they found from the evidence that the agreement alleged in the complaint was entered into between the plaintiffs and the defendant at the time of the purchase of the property, and that the defendant paid the purchase price thereof, less the usual commission, and agreed that the property should be held and sold at such profit as could be obtained therefor, and that the profits should be divided equally between the plaintiffs and the defendant, then they should find for the plaintiff. We are satisfied that this was a correct instruction upon the question, and if the jury found from the evidence as the court instructed them, then it was their duty to return a verdict in favor of the plaintiffs for one-half the profits.

[5] The court also instructed the jury with reference to the expenses which the defendant had incurred upon the property, and that, if they found the agreement had been complied with, then they should return a verdict in favor of the plaintiffs for the balance of one-half the profits. It seems plain that these instructions fully covered

the case, and it was not necessary to instruct the jury with reference to what constituted a partnership, as was requested by

was for the court to say whether a part-cross-examination to inquire the names of nership existed or not with reference to this particular land. We are satisfied that, if the court was required to instruct at all upon this question, it was to tell the jury that there was a partnership. It is needless, therefore, to review the requested instructions upon these points.

associates of the appellant, and statements made by him upon different occasions relating to castration, and questions of that character. We shall not set out these statements because of their disgusting character. It is sufficient to say that, when a defendant voluntarily goes upon the stand in his own behalf, he is subject to all the rules of law relating to cross-examination of other witnessState v. Morden, 151 Pac. 832. We are

The main point in the case is whether or not the agreement could be proven by parol. From our conclusion above upon that ques-es. tion, it follows that the judgment must be satisfied that the cross-examination in this affirmed; and it is so ordered.

case was within the rule there announced.
[2] Second. The principal contention of the

MORRIS, C. J., and ELLIS and FULLER- appellant is that the evidence is insufficient TON, JJ., concur.

(89 Wash. 427)

STATE v. BROOKS. (No. 12916.)

(Supreme Court of Washington. Jan. 28, 1916.)

1. WITNESSES 277-PRIVILEGE OF WITNESS -WEIGHT-CRIMINAL PROSECUTON-EFFECT. Where accused testifies in his own behalf, he is subject to all the rules of law relating to cross-examination of other witnesses.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. ~277.] 2. CRIMINAL LAW 1159-TRIAL-WITNESSES-CREDIBILITY-QUESTIONS FOR JURY.

The question of credibility of witnesses in a criminal prosecution is for the jury, whose finding is conclusive upon the court on appeal. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.]

to sustain a conviction, because the appellant was not sufficiently identified as one of three persons who assisted in the castration of the prosecuting witness. The prosecuting witness went upon the stand and positively identified the appellant as one of the men who held him, while another assisted in holding him, and another used a knife upon the prosecuting witness. The appellant argues that because the fact that the prosecuting witness was shown to be a moral pervert, and that he associated with disreputable characters, and because of his mentality, he was unworthy of belief. The question of the mentality of the prosecuting witness, the character of his associates, his disgusting habits, and all these things were fully gone into at the trial of the case; so that the credibil

3. CRIMINAL LAW 941-NEW TRIAL-NEW-ity of the witness was for the jury to deterLY DISCOVERED EVIDENCE.

Where the questions of mentality of the prosecuting witness and his credibility were fully gone into, and the showing on such questions on a motion for new trial does not go beyond the showing made on the trial, it is not error to refuse a new trial.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2328-2330; Dec. Dig. 941.]

Department 1. Appeal from Superior Court, Yakima County; Thomas E. Grady, Judge.

Isaac Brooks was convicted of castrating the prosecuting witness, and he appeals. Af

firmed.

William M. Thompson, of North Yakima, for appellant. Harold B. Gilbert, of North Yakima, for the State.

MOUNT, J. The appellant was convicted of the crime of castrating the prosecuting witness. He appeals from that judgment.

mine. After considering all the evidence in the case, and being properly instructed upon the question, the jury found a reasonable doubt that the accused was one of the men who assisted in the forcible castration of the prosecuting witness. We think under all the evidence that the question of the credibility of the witness was clearly for the jury. It is not for this court, after a jury and the trial court have passed upon questions of fact of this kind, to determine otherwise.

[3] It is finally argued that the court erred in denying the motion for a new trial upon the ground of newly discovered evidence. There is a showing upon that motion to the effect that after the trial the prosecuting witness had threatened to do counsel for the appellant bodily injury. There is also a showing by affidavits to the effect that certain persons believed the prosecuting witness to be unsound mentally, and an affidavit to the effect that after the trial the prosecuting witness was mistaken in the identity of an officer who had arrested him at one time. This is claimed to be newly discovered evidence upon which the trial court should have granted a new trial. The question of the mentality of the prosecuting witness and the question of his credibility were fully gone into at the trial. The showing made, we think, amounts [1] It is argued first that the court erred to the same thing as was gone into upon the in allowing the prosecuting attorney upon trial. It is simply cumulative; and we think

While a number of errors are assigned, the argument is based upon three contentions, as follows: First, that the appellant did not have a fair trial; second, that the evidence is not sufficient to sustain the conviction; and, third, that the court erred in denying the motion for a new trial. We shall notice these contentions briefly.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

it is insufficient to justify us in reversing the lower court.

We find no prejudicial error.

The judgment must therefore be affirmed.

Action by the Northern Pacific Railway Company against W. R. Tuttle. From a judgment for plaintiff, defendant appeals. Affirmed.

Harris Baldwin, of Spokane, for appellant. MORRIS, C. J., and FULLERTON, CHAD- Edward J. Cannon and Cannon, Ferris & WICK, and ELLIS, JJ., concur. Swan, all of Spokane, for respondent.

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APPEAL AND ERROR 1011- SCOPE OF RE-
VIEW-QUESTION OF FACT-CONCLUSIVENESS
OF FINDING.

Where the only question on appeal is of fact, the finding of the court below, where the evidence is conflicting, cannot be disturbed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. 1011.]

Department 2. Appeal from Superior Court, Okanogan County; E. K. Pendergast, Judge.

Action by Harry Folmsbee and another against William E. Daniell and wife. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Geo. S. Lee and Smith & Gresham, all of Okanogan, for appellants. Chas. A. Johnson, of Okanogan, for respondents.

BAUSMAN, J. Action in deceit for damages, tried without a jury. The real question here is whether an erased clause was stricken from a contract before it was signed. The appellants claim that it was not. Upon this, the sole point that we find it necessary to review, the lower court made an express finding against them.

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Rem. & Bal. Code, § 569, declares that the proceeds of all life insurance shall be exempt from all debts, while section 6158, subsequently is effected by any person on his own life or on enacted, provides that if a policy of insurance another life in favor of a person other than himself having an insurable interest, the lawful beneficiary other than himself or his legal representatives shall be entitled to the proceeds against the creditors and representatives of the person effecting the same. Held, that the lat ter statute, while it did not repeal the earlier one, changed the law, so that a policy of insur ance payable to the insured's estate is liable for his debts.

[Ed. Note.-For other cases, see Exemptions, Cent. Dig. § 75; Dec. Dig.

50.]

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford, Judge. In the matter of the estate of F. S. BlattThere being conflicting evidence and no ner. Claim by W. H. Abel. From an order preponderance against this finding, our deci-directing Dora D. Blattner, as administratrix, sion is controlled by our own numerous and to pay claimant out of the proceeds of life recent utterances. policies, the administratrix appeals. Af

We shall not review the finding, and the firmed. judgment is affirmed.

Chapman & Bailey and L. B. Da Ponte, all of Tacoma, for appellant. A. R. Titlow, of MORRIS, C. J., and MAIN, PARKER, and Centralia, and W. H. Abel, of Montesano, for HOLCOMB, JJ., concur.

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respondent.

MOUNT, J. This appeal is from an order of the lower court directing the administratrix of the estate of F. S. Blattner to pay to the respondent, out of the proceeds of certain insurance upon the life of Frank S. Blattner, the sum of $2,921.70, together with the costs of the action, less such sum as Mr. Abel hereafter receives as distributee of the general funds of the estate. There is no substantial dispute upon the facts which are briefly as follows:

On June 26, 1912, Mr. Abel delivered to Mr. Blattner two notes for the sum of $1,500 each, to be cashed for the purpose of raising $3,000, which was to be used by Mr. Blattner as the

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