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into a contract with the State Highway Com-1 complainant filed at that time. That said commission for the construction of a state aid plainant stood ready and willing at all times to road in King county; that in accordance with the provisions of section 1159, Rem. & Bal. Code, W. F. Guernsey & Co. executed and filed a bond on which the defendant in this action is surety; that thereafter tween August 8 and September 27, 1910, the plaintiff furnished culvert pipe of the value of $1,478.27, which culvert pipe was used in the work; that a claim was filed against the bond on June 9, 1911; that the work was accepted by the Highway Commission on September 3, 1911. The complaint also sets out a copy of the bond, which is a joint and several bond. This action was brought against the bonding company alone. The complaint was filed and served on June 16, 1914.

It is conceded by the appellant that the action is barred by the three-year statute of limitation, unless the further facts pleaded in the complaint have suspended the tion of the statute. The allegations of the complaint upon that question are as follows:

pay any and all claims, and fully perform the covenants of its bond as soon as and whenever said claims were properly established as true claims against said bond. That the defendants in said action, the State Highway Commissioner be-urer of the State of Washington, the State Audiof the State of Washington, the State Treastor of the State of Washington, the county treasurer and county auditor of King county, had in their possession certain funds which they were threatening to turn over to the Scandinavian-American Bank of Tacoma, and claimed said funds by virtue of a purported assignment thereof from said W. F. Guernsey & Co. therein, which is the defendant in this action, "That in said action the said complainant prayed the court for an injunction restraining and enjoining said state and county officials from transferring any funds in their possession, which said injunction was entered in said action on October 9, 1914, and in said action said complainant prayed for an injunction against all the defendants therein, including the plaintiff in this action, restraining them from instituting or prosecuting any other suit upon said bond. opera-That the undersigned attorney for plaintiff in this action was advised of the filing of said complaint, and was threatening to file suit in the superior court against said bonding company, but at the request of James B. Murphy, counsel and attorney in fact for said Title Guaranty & Surety Company, filed in said action an appearance in order to eliminate the necessity of having a restraining order served upon this plaintiff. That said appearance was entered relying upon the allegations contained in said complaint and relying particularly upon the allegation therein to the effect that said bonding company, defendant herein, would pay any and all claims as soon as said claims should be properly established as true claims against said bond. That a large number of the other defendants in said action who had furnished materials and labor for use in the construction of the work under said contract also filed appearances and cross-complaints in said action. That this plaintiff endeavored at numerous times to have said case set down for trial, but that it was delayed and did not come on for trial until the 14th of May, 1914. That the said defendants who furnished material and labor aforesaid introduced evidence in support of their respective claims, and that this plaintiff proved that the material alleged in this complaint to have been furnished was actually used in the construction of said road, and was a valid claim against said bond. That, after all the evidence in said case was introduced, the court in that action, upon motion of the alleged assignee of said W. F. Guernsey & Co., dismissed.said action as to all cross-complainants whose claims were less in amount than $2,000. That, although said motion was filed in the name of said assignee, it was in truth and in fact made at the request and for the benefit of the defendant in this action.

"That heretofore, and in the month of September, 1911, the defendant herein instituted suit in the United States District Court for the Western District of Washington, Northern Division, entitled Title Guaranty & Surety Company, a Corporation, Complainant, v. W. F. Guernsey et al., Defendants, No. 2022, and in April, 1912, filed an amended complaint alleging inter alia as follows: That said W. F. Guernsey & Co. had entered into a contract with the state of Washington as alleged in this complaint, and that pursuant to said contract, said W. F. Guernsey & Co. had entered upon the work of performing the same, and had in fact completed the work, and that said work had been accepted by the state. That the said complainant had executed a bond in behalf of said W. F. Guernsey & Co. to secure the faithful performance of said work. That said bond was duly accepted and filed; that said W. F. Guernsey & Co. had not at the time of the completion of said work under said contract sufficient property or assets from which any claim of the complainant might have against it could satisfy, and had not sufficient property subject to execution in said district or in the state of Washington, or elsewhere, and that said company was wholly unable to respond in damages sufficient to reimburse complainant for any sums for which it might be liable under said bond. That many claims had been filed with the State Highway Commissioner against said bond, and many of said claims were for less than the sum of $2,000, and not appealable to the Supreme Court of the state of Washington. That a uniform holding might not be obtained in each case, and that, since the "That plaintiff alleges that said action was commencement of said action in the federal instituted, and the delay of the trial thereof, court, certain of the claimants brought suit up-caused by defendant herein, for the sole purpose on said bond, some in a court of one county, and some in the court of another. That many of them were threatening to bring suit in the justice court and the superior court, upon claims not appealable to the Supreme Court. That some of said suits were prosecuted against the surety alone, and the court refused to require the principals upon said bond to be joined. That said complainant believed that, if the said claimants were not restrained therefrom, a multiplicity of suits would be instituted in different courts entertaining different opinions as to the construction of said statute regarding suits upon bonds of this character, and that the only way in which uniform rulings could be had upon all of said claims was a suit in equity such as

of defeating the claim of this plaintiff and others similarly situated, and that the defendant herein is threatening to plead the statute of limitations as against the claim of this plaintiff on the ground that more than three years have expired since the materials used in the construction of said road were delivered. That the plaintiff herein has at all times acted in good faith and would not have appeared in said action in the federal court except for the fact that an injunction had been prayed for in said suit, and that its appearance therein would tend to avoid a multiplicity of suits, and except for the further fact that plaintiff in that action asserted its willingness and promised therein to pay all claims as soon as they should be proper

Wash.) MARSHALL-WELLS HARDWARE CO. v. TITLE GUARANTY & S. CO. 803

ly established as true claims against said bond. I court, the claim of the plaintiff would be "That defendant in this action has by its acts, paid "as soon as said claims should be propwords, and conduct aforesaid estopped itself from pleading the statute of limitations in this erly established as true claims against said action, and that said defense is not available to bond." This was clearly a conditional promthe said defendant at this time. That said de- ise to pay, and meant, of course, that if the fendant is preparing to plead the statute of lim- plaintiff in this case would make an appearitations as a defense and should be enjoined from so doing." ance in that case, and properly establish his claim against the bond, the claim would be paid. The only way the claim could be established in that case was by a judgment of the court. It is true it is alleged in the complaint that the plaintiff in this case "proved that the material alleged in this complaint "When the commencement of an action is stayed by injunction or a statutory prohibition, the to have been furnished was actually used in time of the continuance of the injunction or the construction of said road and was a valid prohibition shall not be a part of the time lim-claim against said bond." It is then alleged ited for the commencement of the action."

The question presented upon this appeal is whether these allegations are sufficient to estop the defendant from raising the question

of the statute of limitations. The statute at section 172, Rem. & Bal. Code, provides:

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that:

"After all the evidence in said case was introduced, the court in that action, upon motion of the alleged assignee of said W. F. Guernsey & Co., dismissed said action as to all cross-complainants whose claims were less in amount than $2,000."

So it is clear there is no allegation that the claims of the appellant were allowed in that case; but the fact is, as stated in the complaint, that the claims were not allowed, and as to the appellant, the action was dismissed.

[3] The complaint above quoted also alleges that in the case in the federal court an injunction was sought, and that this plaintiff, in order to avoid the issuance of an injunction, entered an appearance in that case. It is apparent that the appellant was not compelled to enter an appearance in that case. It could do so or not, as it saw fit. No injunction was issued against the appellant. If an injunction had been issued, then clearly, under the terms of the statute above referred to, the statute of limitations would not run pending that injunction. The plaintiff therefore voluntarily entered its appearance relying, as it says, upon establishing his claim as a true claim against said bond in that court. In other words, the appellant elected its remedy in the federal court instead of maintaining an action in the state court. In electing that remedy, the statute ran against the claim in the state court. Hinchman v. Anderson, 32 Wash. 198, 72 Pac. 1018; Hanna v. Kasson, 26 Wash. 568, 67 Pac. 271.

It is plain, we think, that these provisions of the statute are not applicable to this case for the reason that no injunction or statutory prohibition is alleged in the complaint. It is not alleged or claimed that the action in the federal court has been reversed. So that it is plain that these provisions of the statute are not applicable to the present action. [2] It is argued at some length by the appellant that the facts above pleaded constitute an equitable estoppel against the defendant from raising the statute of limitations. It is no doubt the rule that where a fraud, or circumstances amounting to a fraud, prevents a party from maintaining an action against another, the equitable rule of estoppel will apply. The authorities are abundant to that effect. This court has held, in Kreielsheimer v. Gill, 85 Wash. 175, 147 Pac. 871, that where a promise is made to pay as soon as a suit against a person secondarily liable is over, regardless of the outcome of that suit, and a creditor was thereby induced to delay the enforcement of his claim, an equitable estoppel would follow. But we think that case does not control here by reason of the fact that in that case there was an absolute promise to pay. And, furthermore, the account in that case was by the act and solicitation of the payor put beyond the control of the creditor for the time being, and the suit was still pending thereon. The rule is plain that where there is a promise to pay, before it will toll the running of the statute of limitations, the promise must be certain, definite, and unconditional. Liberman v. Gurensky, 27 Wash. 410, 67 Pac. 998; Bank of Montreal v. Guse, 51 Wash. 365, 98 Pac. 1127; Thisler v. Stephenson, 54 Wash. 605, 103 Pac. 987; Coe v. Rosene, 66 Wash. 73, 118 Pac. 881, 38 L. R. A. (N. S.) 577, Ann. Cas. 1913C, 741. The promise alleged in this case, as stated in the complaint above quoted, was that, if the plaintiff in this case tinguishes this case from the case of Kreiwould enter an appearance in the federal | elsheimer v. Gill, supra. Clearly there is no

It is stated in the complaint in this case that an injunction was entered in the federal court on October 9, 1914. That injunction, according to the allegations of the complaint, ran only against state officers mentioned in the complaint in the federal court, and was not effective against this appellant. It is not claimed, as we understand, that any injunction was issued against this appellant in the federal court. It entered that court vol. untarily. It was not required to remair there, but could at any time have been dis missed therefrom, and could have brought an action in the state court. This fact diş

7

IMPLIED

agreement to waive the statute of limita- [2. PRINCIPAL AND AGENT 14
tions alleged in the complaint in this action.
The only agreement attempted to be alleged
is that the plaintiff in the federal court prom-
ised this appellant that if it would make an
appearance in the federal court, and there
properly establish as true its claim against
the bond, then this appellant would be paid.
There was evidently no thought in this prom-
ise to waive the statute of limitations.

AUTHORITY-ESTOPPEL TO DENY AGENCY.

ing circumstances, or in other words a person Agency may be implied from all the attendmay so use his property with relation to others that he will be estopped to deny an agency.

[4] It has been held that the statute of limitations will run unless waived by an agreement expressly or clearly to be implied. McKay v. McCarthy, 146 Iowa, 546, 123 N. W. 755, 34 L. R. A. (N. S.) 911.

In Monroe v. Herrington, 110 Mo. App. 509, 85 S. W. 1002, it was said:

[Ed. Note.-For other cases, see Principal and

Agent, Cent. Dig. §§ 26-33; Dec. Dig. ✪14.]

Department 1 Appeal from Superior Court, Grays Harbor County; Ben Sheeks, Judge.

Action by Philip Bertrand against William Hunt, as administrator of Minnie B. Leitch, deceased, and another. From a judgment in favor of the administrator, plaintiff appeals. Affirmed.

Bridges & Bruener, of Aberdeen, for appellant. Hogan & Graham, of Aberdeen, for respondent Hunt. G. R. Snider, of Aberdeen, for respondent Poulson.

"In order to prevent the defense of the statute of limitations by estoppel or waiver, there must have been a distinct agreement by the party sued not to interpose the defense. Mere reliance on the debtor's promise to pay if not sued CHADWICK, J. [1] Plaintiff was the affords no ground for cutting him off from the defense when sued. Hill v. Hilliard, 103 N. C. owner of a Chalmers automobile. He learn34, 9 S. E. 639; Joyner v. Massey, 97 N. C. ed that Mrs. Minnie Leitch might buy a ma148, 1 S. E. 702; State Bank v. Hill, 10 chine. He sought her out and offered her his Humph. (Tenn.) 176, 51 Am. Dec. 698; An-machine for $1,200. Defendant Poulson operdreae v. Redfield, supra, 98 U. S. 225 [25 L. Ed. ated a garage at Aberdeen, and was the selling agent for the Chalmers Company. It coming to the knowledge of Poulson that plaintiff had spoken to Mrs. Leitch, and be lieving that he might be able to sell plaintiff a new car of the same make, he took it upon himself to discuss the matter with her, he being a boarder at her house.

158]."

We are satisfied therefore, from the allegations of the complaint above set out, that there was no agreement to waive the statute, and no fraud, and no ground for equitable estoppel. The trial court was right in sustaining the demurrer.

The judgment appealed from is therefore affirmed.

On the 22d day of May, 1914, Poulson was at the home of Mrs. Leitch for lunch, and he asked her to go with him and examine and

MORRIS, C. J., and ELLIS and FULLER- ride in the car of the plaintiff. They must TON, JJ., concur.

(89 Wash. 475)

BERTRAND v. HUNT et al (No. 12977.) (Supreme Court of Washington. Feb. 4, 1916.) 1. BAILMENT 14-PRINCIPAL AND AGENT 14-INJURIES TO PROPERTY BAILED-LIA

BILITY.

which Mrs. Leitch intended to use as a garage if she bought the car.

have discussed, in some way, the price and size of the car. Testimony shows that Poulson had obtained the offer of better terms than had been made by plaintiff; that is to say, that if Mrs. Leitch bought the car plaintiff would take $600 down and $600 in 60 or 90 days, without interest. At any rate, Mrs. Leitch went with Poulson, and they drove to the place where plaintiff had his car. PoulPlaintiff was attempting to sell his auto- son obtained a tapeline and measured the mobile to L., and P., a dealer in automobiles, in-car to see if it would go into a chicken house terested himself in the sale, believing that if plaintiff sold his car he might be able to sell plaintiff a new car. P. suggested to plaintiff that he and L. be allowed to take the car for a day or two. Plaintiff, knowing of P.'s interest in the transaction, allowed him to take the car for the purpose of demonstration in furtherance of their mutual designs. P. permitted L, who was inexperienced, to drive the car, teaching her to drive it, and at an angle in the road she drove into a gulch, killing herself and damaging the car. Held, that L.'s estate was not liable to plaintiff, as P. was plaintiff's agent for whose negligence plaintiff was responsible, and an inexperienced person learning to drive an automobile in the presence of and under the tuition of an experienced man cannot be held liable in damages, unless there is positive negligence.

[Ed. Note. For other cases, see Bailment, Cent. Dig. 88 45-55; Dec. Dig. 14; Principal and Agent, Cent. Dig. §§ 26-33; Dec. Dig. 14.]

Plaintiff testifies that he was about to

make some repairs on the car in the way of putting in a new pump, and that Mrs. Leitch suggested that they be allowed to take the car and return it in a day or two, when he might make the repairs. The other witnesses do not agree whether Mrs. Leitch or Poulson made such proposal. The weight of testimony would sustain the finding that if any such suggestion was made, it was made by Poulson. Poulson and Mrs. Leitch took the car. After driving for a few blocks Mrs. Leitch got into the driver's seat so that Poulson could teach her the working of the machine. He had had her, with some friends, out with him the night before for the purpose

of instructing her, and a few days before had directed her in driving a car from the golf grounds into the city.

While driving down a hill on Fourth street, Mrs. Leitch at the wheel, the car came to a bridge situated at an angle of about 45 degrees with the road. Mr. Poulson testifies that he directed Mrs. Leitch to turn to the left, and that instead of turning to the left she gave a quick turn to the right. The car went over a sidewalk, into the railing, and down into the gulch below. Mrs. Leitch was killed, and this action was brought on the theory that Poulson and Mrs. Leitch were gratuitous bailees and liable to answer for the damages to the machine.

The court below found that Poulson was not the agent of the plaintiff, and found him liable for the damages sustained. He fur ther found that Mrs. Leitch was in no way responsible for the accident, and entered judgment accordingly. Poulson has not appealed.

Appellant accepts the findings of fact and instances that inasmuch as Poulson was not the agent of respondent, it follows that he was a gratuitous bailee, and that Mrs. Leitch, having an interest in the purchase of the car, was equally liable with him. This might be so under some circumstances, but we cannot agree with the finding, which was excepted to, that Poulson was not the agent of the appellant.

Mrs. Leitch was no more than a prospective buyer. Plaintiff was desirous of selling his machine. Poulson believed if the machine were sold he would be able to replace it with a new machine. Appellant knew of his interest in the transaction and allowed him to take the car for the purpose of demonstration in furtherance of their mutual designs.

The car would not have been taken under the circumstances if it had not been for the suggestion of Poulson, and we may assume that appellant would not have permitted his car to be taken by any prospective buyer, unless he was satisfied that he was a competent and efficient driver, or in the company and under the direction of a skillful chauffeur.

The law will not put an inexperienced person, who is learning to drive an automobile in the presence of and under the tuition of an experienced man, to the hazard of answering in damages, unless there is proof of positive negligence. We find no such proof in the record.

[2] It may be suggested that there is no proof that Poulson was ever made the agent

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(89 Wash. 478) (No. 13083.)

STATE v. TOWESSNUTE. (Supreme Court of Washington. Feb. 4, 1916.) 1. INDIANS 3 INDIAN TREATY CONSTRUCTION-INCONVENIENCE TO STATE. While inconvenience or loss to the state, however great, is no ground for taking away any rights possessed by the Indians, it is a matter proper to consider in determining from an Indian treaty of doubtful meaning whether Congress intended to bestow rights claimed by the Indians.

Cent. Dig. §§ 5-7, 11; Dec. Dig. 3.] [Ed. Note.-For other cases, see Indians,

2. INDIANS 3-INDIAN TREATY-RIGHT TO FISH OUTSIDE RESERVATION-SUBJECT TO STATE LAW.

The Yakima Treaty of March 8, 1859 (12 of taking fish in all streams running through Stat. 951), providing that the exclusive right or bordering on the reservation is secured to the Indians, as also the right of taking fish at all usual and accustomed places "in common with tribal inhabitant of the Yakima Indian reservacitizens" of the territory, does not authorize a tion to fish in a river several miles outside the reservation without a license, contrary to a law of the state; the words quoted indicating an intent not to give the Indian an advantage, but to save him from a disadvantage, and to permit the state laws to operate on both races alike in respect to the right to fish outside the reserva

tion.

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[Ed. Note.-For other cases, see Indians, Cent. Dig. §§ 2, 3; Dec. Dig. 2.

For other definitions, see Words and Phrases, First and Second Series, Nation.]

of appellant, but agency may be implied 5. FISH 8-CONSERVATION-POLICE POWER. from all the attending circumstances. Το

The police power of the state is not confined state the rule in a negative way, a person to subjects of safety, but extends to those of may so use his property with relation to oth-servation of fish. convenience and prosperity, including the coners that he will be estopped to deny an [Ed. Note. For other cases, see Fish, Cent. Dig. 16; Dec. Dig. 8.]

agency.

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

6. CONSTITUTIONAL LAW 81-POLICE POWER-RIGHT TO SURRENDER.

The police power of the state cannot, by any act of the Legislature be surrendered to the national government.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 148; Dec. Dig. 81.] 7. CONSTITUTIONAL LAW 81-POLICE PowER OF STATE-FederaL DECISIONS.

In controversies involving the exercise of the police power of the state, the federal courts will resolve every doubt in favor of the state law, and, even in case of a state law on a subject within the control of the federal government, the state law will be upheld until the federal law has been extended to that subject. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 148; Dec. Dig. 81.] 8. CONSTITUTIONAL POLICE An owner cannot remove his property from the police power of the state by making a contract concerning it, nor can the state under the police power commit a confiscation.

POWER.

LAW 81

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[2] What Towessnute did contrary to the statute was to fish without a license, snag salmon with a gaff hook, and catch fish without hook or line within a mile of the dam. These acts constitute for the purpose of this discussion one offense, since all were com[Ed. Note.-For other cases, see Constitution-mitted at one place where Indian privileges al Law, Cent. Dig. § 148; Dec. Dig. 81.] 9. INDIANS 3-INDIAN TREATY - IMPLIED REVOCATION- ADMISSION TO STATEHOOD POLICE POWER.

The admission of a state to the union on equal terms with the other states, impliedly revokes provisions of an Indian treaty granting rights which impair the state's police power. [Ed. Note.-For other cases, see Indians, Cent. Dig. §§ 5-7, 11; Dec. Dig. 3.]

Holcomb, J., dissenting.

are asserted to justify them. Towessnute's defense is that his manner of fishing was ancient in his tribe, and the spot an immemorial resort where he required no license. The lower court justified him under the Yakima Treaty of March 8, 1859 (12 Stats. at Large, 951), which was passed after Washington had been made a territory with legislative power over "all rightful subjects of legislation," and which, after creating a reservation whither the Yakimas should retire, provided:

Department 1. Appeal from Superior Court, Benton County; Bert Linn, Judge. Alec Towessnute was charged with fishing "The exclusive right of taking fish in all the without a license in violation of statute. A streams, where running through or bordering demurrer to the information was sustained, said reservation, is further secured to said conand the State appeals. Reversed, with direc-federated tribes and bands of Indians, as also tions that case be reinstated, and demurrer overruled.

W. V. Tanner, Atty. Gen., C. W. Fristoe, of Prosser, and Lindsay L. Thompson, of Olympia, for the State. Francis A. Garrecht, of

Spokane, for respondent.

BAUSMAN, J. It is conceded by stipulation and in argument that the Indian Towessnute, tribal inhabitant of the Yakima Indian reservation, has committed violations of our fishing statutes on the Yakima river, not only several miles outside of the reservation, but at a spot in no way appurtenant to it by path or easement. It is also conceded that, if his tribe may continue to do these things, the salmon industry of this state must be grievously wounded in its very nurseries, because the Yakimas and other tribes, whose contentions in cases now pending are the same, claim many such spots on various waters to be exempt from these statutes, and because these people, once savage and wandering, now in some degree pursue fishing for a profit. The habits of salmon in seeking at certain seasons the highest fountains of our streams to spawn in are well known, and such is their persistence and thronging at the entrance to them and at either rapids

the right of taking fish at all usual and accustomed places, in common with citizens of the territory, and of erecting temporary buildings for curing them; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land."

The reasoning was that the words "in common with" would be unduly stretched if the Indians were to be subjected even at a fishing resort beyond the reservation to state regulation. All that he lost by that phrase, it was contended, was that the white man might fish there, too. Within the reservation only the Indian might fish; outside both; the former in his old way; the white man as the state should prescribe. To express the argument concisely, the Indian, as a sovereign, merely yielded a partnership.

The old locations were his before the treaties. By that convention he admitted the white man but the white man got only what the Indian clearly conceded. In terms, indeed, the treaty, mentioning nothing of the manner of fishing, secured to the Indian only the place. But it was not necessary to secure the manner also in express terms. Not surrendered, it was retained. In support of this argument counsel point to the priority of the Indian's possession, to the fact that the document is called a treaty,

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