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agent of Mr. Abel in purchasing certain real estate. Mr. Blattner cashed these notes and obtained the money therefor. He did not purchase the real estate, but held the money in his possession. Thereafter Mr. Blattner lost his life. The money which he had received from Mr. Abel had been mingled with his own private funds, and came into the hands of the administratrix as assets of the estate. After the death of Mr. Blattner, his widow was appointed as administratrix of his estate. In March, 1913, Mr. Abel presented his claim to the administratrix, the same was allowed by her, and in January, 1914, the claim was approved by the court and became a claim against the estate. Thereafter payments were made upon the claim amounting to $493.77.

applies to all debts created after the statute took effect. Flood v. Libby, 38 Wash, 366, 80 Pac. 533, 107 Am. St. Rep. 851; In re Heilbron's Estate, 14 Wash. 536, 45 Pac. 153, 35 L. R. A. 602; Northwestern Mutual Life Ins. Co. v. Chehalis County Bank, 65 Wash. 374, 118 Pac. 326; Reiff v. Armour & Co., 79 Wash. 48, 139 Pac. 633, L. R. A. 1915A, 1201; German-American State Bank. v. Godman, 83 Wash. 231, 145 Pac. 221.

Section 6158, Rem. & Bal. Code, provides as follows:

"If a policy of insurance is effected by any person on his own life, or on another life in favor of a person other than himself having an insurable interest therein, the lawful beneficiary thereof, other than himself or his legal representatives, shall unless contrary to the terms of the policy, be entitled to its proceeds against the creditors and representatives of the person effecting the same; and the person to whom a policy of life insurance is made payable may an action maintain thereon in his

name.

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In the case of Northwestern Mutual Life Ins. Co. v. Chehalis County Bank, supra, it was contended that this latter statute repealed section 569, Rem. & Bal. Code, above quoted; but we denied that contention, saying, that if it was repealed at all it was repealed by implication, and:

At the time of his death Mr. Blattner had two insurance policies upon his life payable to his estate. These policies amounted to $14,258.83. They were collected by the administratrix. Thereafter, upon an ex parte application of the administratrix, without notice to Mr. Abel, the court made an order directing one half of the insurance money to be paid to Mrs. Blattner, and the other half to Dorothy M. Blattner, the daughter of the deceased. Upon the final report of the administratrix being filed, Mr. Abel objected to "That repeals by implication are not favored the payment of the insurance money to the is the established doctrine in this state, and that they will not be allowed, unless the will of widow and the daughter of the deceased. Up- the Legislature is so manifest that the statutes on the hearing of these objections the court cannot be read in pari materia without violence entered the order herein appealed from. to the earlier statutes is a fundamental rule of The principal question presented is wheth-construction from which courts are not at liberty to depart." er the proceeds of a life insurance policy payable to the estate of the deceased is exempt from the debts of the deceased where, in his lifetime, the property of the deceased would not be exempt from the payment of this claim. Many pages of the briefs of the appellant and the respondent are taken up with a discussion whether section 564, Rem. & Bal. Code, is applicable to this case. This section provides that no property shall be exempt from execution issued upon a judgment against an attorney or agent on account of any liability incurred by such attorney or agent to his client or principal on account of any moneys or other property coming into his hands from or belonging to his client or principal. But in view of our conclusion upon another question which seems to us to control, we shall not pass upon the applicability of that statute to this particular case.

The appellant relies upon the provision of section 569, Rem. & Bal. Code, which provides:

"The proceeds or avails of all life and accident insurance shall be exempt from all liability for any debt."

It is strenuously argued that because the money in question was derived from an insurance upon the life of Mr. Blattner, that under this section it is exempt from the payment of Mr. Abel's claim. This statute is a sweeping statute, and this court has many times held that, when considered alone, it

Neither the opinion nor the record in that' case shows the beneficiary of the insurance policy. The question presented in the case at bar was neither decided nor discussed in that case, except in so far as we held that section 569 was not repealed by implication by section 6158. It is apparent from our decision in that case that we regarded these two statutes as being in pari materia, and that they should be construed accordingly. We think it is plain from the provision of section 6158 quoted, that the Legislature intended that the proceeds of a life insurance policy should be exempt from creditors of the estate only when the beneficiary in the policy is some person other than the insured himself or his legal representatives, for it says: "If a policy of insurance is effected by any person on his own life, * the lawful beneficiary thereof, other than himself or his legal representatives, shall, unless contrary to the terms of the policy, be entitled to its proceeds against the creditors and representatives of the person effecting the same.

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Otherwise, the phrase "other than himself or his legal representatives," is entirely meaningless, for the statute at section 569 above quoted provides that the proceeds and avails of all life and accident insurance shall be exempt from all liability for any debt. We think it was intended by the later statute to modify that sweeping provision of the former statute to the extent of providing

that if a policy of insurance is effected by any [ v. Godman, 83 Wash. 231, 145 Pac. 221. It is person on his own life in favor of himself true the parties to that appeal did not cite or payable to his estate, that in such a case or rely upon the statute now found to be the proceeds are not exempt against the cred-controlling, but the court itself did not overítors and representatives of the person effect-look the statute. On the contrary, the stating the insurance. When these two statutes ute was cited in the opinion and held to have are construed together in pari materia, we no application. I did not have the privilege think that is clearly the meaning, because of sitting at the hearing in the earlier case, the words "other than himself or his legal representatives" were used for a purpose, and that purpose was to limit the exemption, as stated.

In the case of German-American State Bank v. Godman, supra, we held that the proceeds of certain insurance policies payable to the estate of the insured and to the legal representatives of the insured were not subject to certain debts. In that case the point now being considered was not raised or discussed, for in that case we said:

but I thought then and I think now that a wrong conclusion was reached therein. This opinion therefore should do in terms what it does in fact, namely, overrule that case, to the end that no uncertainty should exist as to the rule properly to be applied to like cases.

ELLIS, J. I concur with Judge FULLERTON.

(89 Wash. 463)

STATE v. LYNN. (No. 12981.) (Supreme Court of Washington. Feb. 2, 1916.) FALSE PRETENSES 7-ELEMENTS-FALSE

"Although not relied upon by the appellants, it is equally plain that Laws of 1909, p. 556, § 36 (Rem. & Bal. Code, § 6158), have no applica-1.

tion to the facts in the case at bar."

The decision in that case was rested principally upon the provisions of section 569, and the court did not attempt to construe the provisions of section 6158, supra, as affecting that section, because the point was not relied upon. It was held in that case that the words "legal representatives" mean ordinarily executors or administrators. We there said:

"The law does not differentiate between policies payable to the 'executors, administrators, or assigns,' and policies payable to the estate' of the insured."

This is plainly so, and where a policy is made payable to one's estate it is payable to his legal representatives. We are therefore satisfied that under the provisions of section 6158 above quoted that it was the intention of the Legislature that the proceeds of insurance policies payable to an estate should be liable to the creditors of the estate. In order that the proceeds may not be liable to the creditors of the estate, the insurance

must be effected in favor of a beneficiary
other than the insured or his legal representa-
tives, for example, the wife, a child or chil-
Where
dren, or some other specified person.
the policy is made payable to the insured or
to his estate, or "his legal representatives,"
the proceeds thereof are not exempt, but are
available to the creditors of his estate. This
being so, it is plain that the trial court was
right in holding that the proceeds of this
policy were liable for the debt in question.
The judgment is therefore affirmed.

MORRIS, C. J., and CHADWICK, J., con

cur.

FULLERTON, J. While I concur with the majority in the conclusion reached in this cause, I do not think it can be differentiated from the case of German-American State Bank

REPRESENTATIONS OF FACT.

A false and fraudulent representation, to constitute the crime of larceny by color or aid of false representation, must be of an existing or past fact.

[Ed. Note.-For other cases, see False Pretenses, Cent. Dig. §§ 5-12, 25; Dec. Dig. 7.] 2. FALSE PRETENSES 39 ELEMENTS FALSE REPRESENTATIONS OF FACT-Burden OF PROOF. Where it was charged that the accused procured the prosecuting witness to invest certain moneys in a store by the representation that the accused had $4,000 which he was going to invest, it was incumbent on the state to prove that he did not in fact have $4,000 at the time he so represented.

[Ed. Note.-For other cases, see False Pretenses, Cent. Dig. § 54; Dec. Dig. 39.] 3. FALSE PRETENSES 49 ELEMENTS FALSE REPRESENTATIONS OF FACT DENCE.

-

EVI

the statement that the accused had $4,000 was Where the only evidence as to the falsity of that not more than $225 worth of goods were put into the store, that was insufficient to show beyond a reasonable doubt that the representation as to the amount of money he had was

false.

[Ed. Note.-For other cases, see False Pretenses, Cent. Dig. § 62; Dec. Dig. 49.]

Department 2. Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

E. H. Lynn was convicted of grand larceny, and he appeals. Reversed and remanded,

with directions to dismiss.

Shepard, Burkheimer & Burkheimer, of Seattle, for appellant. O. T. Webb, Percy Gardiner, and E. C. Dailey, all of Everett, for the State.

MAIN, J. The defendant in this case is charged with the crime of grand larceny. Whether by the information it is intended under Rem. & Bal. Code, § 2601, to charge larceny by "color or aid of any fraudulent or false representation," or larceny by embez

after, and on July 17th, the appellant and wife turned over to the corporation, in payment for stock subscribed for by them, real and personal property listed at the value of $4,352.31. On July 20, 1914, Waggett, in Seattle, King county, paid to the corporation $300 in cash, and turned over a note of the face value of $500. Thereupon 16 shares of the capital stock of the corporation of the par value of $50 per share were issued and delivered to him.

zlement, or both, does not clearly appear. | ration being issued on July 14, 1914. ThereFrom a reading of the state's testimony, and the remarks of the trial judge, it would appear that up to the time when the state rested its case, there was an attempt to prove larceny by embezzlement. When the evidence in chief for the state was in, the defendant moved for a directed verdict, claiming that the evidence was insufficient to establish any crime, and that the venue was improperly laid in Snohomish county. In denying this motion the trial court required the state to elect whether it would have the cause go to the jury under the claim that the crime was committed by false and fraudulent representations, or by embezzlement. The state concluded to interpret the information as charging the crime of larceny by false and fraudulent representations. Thereupon the evidence upon behalf of the defendant was introduced, and the cause was submitted to the jury. A verdict of guilty was returned. Motion for a new trial being made and overruled, the defendant appeals from the sentence and judgment.

The facts briefly stated are: On June 18, 1914, and for some time prior thereto, the prosecuting witness, one J. B. Waggett, was operating an automobile truck between Seattle, in King county, and Cathcart, in Snohomish county, Wash., with his residence in Seattle. On that day the appellant called upon Waggett for the purpose of engaging him to haul certain store fixtures from Seattle to Cathcart. Prior to this date the parties had no acquaintance. In the course of

the conversation relative to the hauling of the store fixtures, Lynn told Waggett that he was going to organize a corporation to conduct a grocery business at Cathcart in a certain store building there situated, which he had previously leased, and that the store fixtures which he was desiring to move were to be used in such business. Waggett then told the appellant that he, Waggett, also contemplated starting a store at the same place. The question of Waggett taking stock and becoming interested in the corporation to be organized by the appellant was discussed at that time by the parties. Waggett claims, and he so testified, that the appellant told him that he had sold two stores in Seattle for $4,000, and that if Waggett would invest $800 or $1,000, the appellant would invest $4,000 in cash in the business enterprise. Waggett gave a somewhat different version, which it is unnecessary here to detail.

On June 20th Waggett hauled the fixtures from Seattle and Cathcart. About a week later Waggett went to Cathcart and began constructing partitions in the rear end of the store building which was to be occupied by the business preparatory to moving his family therein, which he did on July 8th following.

Articles of incorporation for the Cathcart Grocery & Mercantile Company were duly prepared and filed; a certificate of incorpo

After the store was opened, both Waggett and the appellant worked therein. The business was conducted some months, when it became insolvent and a receiver was appointed. After the appointment of the receiver, Waggett filed a verified claim with the receiver in which he stated that the $300 was a loan to the corporation. Upon the trial Waggett testified that there was not placed in the store more than $225 worth of merchandise.

The controlling question in this case is whether the evidence shows that the appellant was guilty of grand larceny committed by color or aid of any fraudulent or false representation. It is claimed that the false representation consisted in the appellant's statement that he had $4,000 in cash as the result of the sale of two stores, when in fact he did not have that amount, or any sum in excess of $100.

under the statute, in order to constitute a [1] A false and fraudulent representation, crime, must be of an existing or past fact. 2 Bishop, New Criminal Law, § 415; 1 McClain, Criminal Law, § 678.

[2] The falsity of a fact past or present being one of the elements of the crime, it was incumbent on the state to prove that the appellant did not in fact have $4,000 in cash at the time it is claimed he so represented. State v. Hurley, 58 Kan. 668, 50 Pac. 887.

[3] The articles of incorporation of the Cathcart Grocery & Mercantile Company state its objects, among other things, to be, to conduct a general mercantile business for the purpose of purchasing and selling of all kinds of groceries and merchandise, and to acquire by purchase or otherwise real and personal property of every kind and description. A number of other purposes are also set out, such as usually appear in articles of incorporation.

The evidence relied upon to show the falsity of the statement as to the $4,000 is that of the complaining witness that not more than $225 worth of groceries were put into the business. This obviously does not disprove the statement attributed to the appellant that he had sold two stores in Seattle, and had received therefrom $4,000 in cash, which he expected to put into the business. For aught that appears in the evidence, he may have had the $4,000 as it is claimed he said he had. The evidence is doubtless sufficient to cast suspicion upon the truthfulness

of his alleged claim that he had $4,000 in cash. But if he is guilty of a crime, all the elements of the crime must be established by competent evidence, and the conviction cannot be sustained, unless the evidence was such that the jury had a right to find that all the elements of the crime were proven beyond a reasonable doubt.

It may well be doubted whether the venue was properly laid in Snohomish county, construing the information as charging the crime as being committed by color or aid of false and fraudulent representations. But it is not necessary to decide this question, since the other question discussed is decisive of

the action.

The judgment will be reversed, and the cause remanded, with directions to dismiss. MORRIS, C. J., and BAUSMAN, HOLCOMB, and PARKER, JJ., concur.

(89 Wash. 423)

HUSCHKE v. ARCADIA ORCHARDS CO. (No. 12833.)

(Supreme Court of Washington. Jan. 28, 1916.) 1. WATERS AND WATER COURSES 254-IRRIGATION WATERS-CONTRACT TO FURNISHTIME OF PERFORMANCE.

Where an irrigation company's deed to lands clearly agreed to supply them with water, but fixed no time within which it was to be furnished, the company was under duty to furnish water within a reasonable time, considering the facts contemplated by the parties when the contract was made.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. 254.]

2. DAMAGES -SUFFICIENCY.

141-PLEADING

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COMPLAINT

Where the complaint of plaintiff, suing for breach of contract, sufficiently stated a contract, its breach and proximate injury, the complaint was good, although it set out an improper measure of damages.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 406-408, 412, 414, 415; Dec. Dig. 141.]

ment of dismissal, plaintiff appeals. Reversed and remanded for new trial.

Munter & Flood, of Spokane, for appellant. Cullen, Lee & Matthews, of Spokane, for respondent.

MORRIS, C. J. Appeal from a judgment of dismissal based upon the insufficiency of the complaint. The complaint recited that in March, 1909, respondent sold to one Grant 200 acres of land, together with a perpetual water right to the use of certain water for

irrigation purposes during the period from May 15th to September 1st of each year, from canals, ditches, flumes, or pipe lines to be constructed by respondent, which would deliver the water at the highest point of the granted land; that the grantee subsequently sold 20 acres of this land to appellant, together with a proportionate share of the perpetual water right as specified in the deed to Grant; that appellant went into possession of his land in 1910, purchased and planted a large number of fruit trees, but that respondent failed and neglected to furnish water as specified in the Grant deed, and had so failed up to May 1, 1913; that appellant was unable to procure water elsewhere; and that by reason of respondent's failure to comply with the terms of its contract in the furnishing of water he lost many of his fruit trees, and others were greatly damaged. It is then alleged that with water the land was worth $400 per acre; without water not to exceed $85, and appellant's damage was consequently fixed at $6,300, for which judg ment was demanded. Issues were joined, and a jury impaneled to try the same, when respondent objected to the admission of evidence upon the ground that the complaint was insufficient. This objection was sustained, and appellant refusing to further plead, the cause was dismissed.

[1] No time seems to have been fixed within which the water was to be furnished, but inasmuch as the deed clearly calls for a sup 263-IR-ply of water, the law fixes the time as a BIGATION WATERS-ACTION FOR BREACH- reasonable time considering the facts within MEASURE OF DAMAGES.

3. WATERS AND WATER COURSES

In an action for failure to furnish water by the grantee of one whose lands defendant had contracted to supply, where the proximate injury was the destruction of a number of fruit trees and damage to others, the measure of damages was the difference between the value of the growing trees, had water been furnished according to the contract, and the value of the trees without water, limiting the damages to such injuries only as were occasioned by its lack, since the proper measure of damages for breach of contract is the injury proximately resulting.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 324; Dec. Dig. 263.]

Department 1. Appeal from Superior Court, Spokane County; E. K. Pendergast, Judge.

Action by Ernst Huschke against the Arcadia Orchards Company. From a judg

the contemplation of the parties at the time the contract was entered into, and what would be a reasonable time would be one of the ultimate facts to be determined.

[2] It is apparent that appellant has misconceived the measure of his damages in seeking to recover the difference between the value of the land with and without water; but this does not call for a dismissal of the action. It is not essential to the statement of a good cause of action that the complaint should set out a proper measure of damages, since that is a question of law to be determined by the court in instructing the jury or in the conclusions of law if tried without a jury. If the appellant sufficiently stated a contract, its breach and proximate injury, he stated a cause of action irrespective of what

Wash.) MARSHALL-WELLS HARDWARE CO. v. TITLE GUARANTY & S. Co. 801

the pleader conceived to be the proper measare of damages. Wetmore v. Porter, 92 N. Y. 76; St. Louis S. W. Ry. Co. v. Jenkins Tex. Civ. App.) 89 S. W. 1106; Norton v. Kull, 74 Misc. Rep. 476, 132 N. Y. Supp. 387; Weller v. Missouri Lumber & Mining Co., 176 Mo. App. 243, 161 S. W. 853; Ara v. Rutland (Tex. Civ. App.) 172 S. W. 993.

the plaintiff within a year of the reversal of a judgment for him in an action commenced withissued nor had there been reversal of the acin the time prescribed, since no injunction was tion of the federal court.

--

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 56-58; Dec. Dig. 13.] 2. LIMITATION OF ACTIONS 13 SUIT BY CONTRACTOR'S SURETY TO RESTRAIN PROSECUTION OF CLAIMS-CLAIMANT'S APPEARANCE-CONDITIONAL PROMISE TO PAY-EQUITABLE ESTOPPEL.

The fact that in requesting plaintiff's ap

promised to pay its claim as soon as it should be properly established against the bond did not create an equitable estoppel of defendant from asserting the statute of limitations in plaintiff's subsequent action, since the promise to pay, beorder to toll the running of the statute of limiing conditional, was not within the rule that in tations such promise must be certain, definite, and unconditional.

[3] The proper measure of damages in the breach of a contract is the proximate injury. In this case the pleader alleged that proximate injury to be the destruction of a num-pearance in such federal court suit defendant ber of his fruit trees and damage to others. The measure of damages then would be the difference between the value of his growing trees had water been furnished within a reasonable time according to the terms of the contract and the value of the trees without water; bearing in mind, of course, all the elements which enter into the growth of fruit trees, and limiting the damages to such injuries only as were occasioned by lack of water. Hanes v. Idaho Irrigation Co., 21 Idaho, 512, 122 Pac. 859; 3 Kinney on Irrigation and Water Rights, p. 3139.

Reversed and remanded for new trial.

FULLERTON,

MOUNT,

CHADWICK, JJ., concur.

(89 Wash. 404)

ELLIS, and

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. 88 56-58; Dec. Dig. 13.]

3. ELECTION OF REMEDIES 7-SUIT BY CONTRACTOR'S SURETY TO RESTRAIN PROSECUTION OF CLAIMS-CLAIMANT'S APPEARANCE. The fact that plaintiff appeared in such federal court suit in order to avoid the issuance of an injunction against it created no ground for defendant's equitable estoppel in such subsequent state court action, since, plaintiff not being compelled to enter it, such appearance was voluntary and in connection with plaintiff's reliance upon establishing the claim in the federal court suit, was an election of remedies whereunder the statute of limitations ran against

MARSHALL-WELLS HARDWARE CO. v. plaintiff's right to proceed in the state court. TITLE GUARANTY & SURETY CO.

(No. 12746.)

[Ed. Note.-For other cases, see Election of Remedies, Cent. Dig. § 12; Dec. Dig. 7.]

ING SUIT-PROMISE TO PAY-TOLLING STAT-
UTE.

(Supreme Court of Washington. Jan. 28, 1916.) 4. LIMITATION OF ACTIONS 15-Forbear1. LIMITATION OF ACTIONS 13 SUIT BY CONTRACTOR'S SURETY TO RESTRAIN PROSECUTION OF CLAIMS CLAIMANT'S APPEARANCE-STATUTORY ESTOPPEL.

The mere promise by the debtor to pay if not sued affords no ground for estopping him from urging the defense of the statute of limitations, since in order to toll the statute, there must be a distinct agreement by the defendant not to interpose such defense in consideration of the forbearance of the suit.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 62-65; Dec. Dig. 15.]

Department 1. Appeal from Superior Court, King County; John E. Humphries, Judge.

Action by Marshall-Wells Hardware Company against the Title Guaranty & Surety Company. From a judgment sustaining a demurrer to its complaint, plaintiff appeals. Affirmed.

Defendant, as surety on a contractor's bond guarantying the construction of a state aid road, brought a suit in the federal court to restrain the prosecution of numerous claims under the bond in the state courts, to avoid a multiplicity of suits, praying an injunction against the institution or prosecution of any other action under the bond, and asserting its readiness at all times to pay all claims properly established as true claims against the bond. Plaintiff, who had a claim for materials furnished the contractor and who was about to bring an action in a state court, entered its appearance in the federal court suit relying upon the promise to pay properly established claims, and a further promise to the same effect by counsel for defendant in such suit in respect of plaintiff's claim individually. Plaintiff proved its claim in the federal court, as did numerous other claimants, but after all the evidence was in the court on motion dismissed all claims less in amount than $2,000, which included plaintiff's claim; no injunction, however, was isued against bringing or prosecuting state court actions. In the meantime the statute of limitations had run against the institution of a new action on such claim, but plaintiff brought an action in the state court, asserting the foregoing facts as an estoppel of the assertion by the defendant of the statute of limitations. Held, that there was not an estoppel under Rem. & Bal. Code, § 172, providing for the tolling of the statute of limitations by an injunction staying the commencement of an action, or under section 173, provid[1] The complaint alleges in substance that ing for the commencement of a new action by in July, 1910, W. F. Guernsey & Co. entered For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-51

Cassius E. Gates, of Seattle, for appellant. James B. Murphy, of Seattle, and Williamson, Williamson & Freeman, of Tacoma, for respondent.

MOUNT, J. The trial court sustained a demurrer to the plaintiff's complaint. The plaintiff elected to stand upon the allega. tions thereof, and the action was dismissed. This appeal followed.

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