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conveyance of other lands described in the contract,

[Ed. Note.For cases in point, see Cent. Dig. vol. 30, Judgment, g 1108.] 2. Same.

Where, in a suit' to specifically enforce a contract for the conveyance of real estate, plaintiff in his supplemental reply alleged the rendition of a judgment granting the relief prayed for in a prior suit to specifically enforce the contract, defendant, though failing to plead the former judgment not rendered until after the filing of his answer, was entitled to avail himself of the former judgment as a bar to the action.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, g 1787.) 3. SAME.

A party seeking to specifically enforce a contract for the conveyance of real estate discovered, before the entry of judgment granting the relief prayed for, a failure to convey other lands as required by the contract, but he failed to ask the additional relief in an amended complaint. Held, that the former judgment was a bar to a suit for the specific performance of the contract so far as the same related to such other lands.

remark was a comment on the evidence, and as such prohibited by section 16, art. 4, of the Constitution. Was the remark prejudicial? We think it was. As we have said, there was a sharp conflict between the respondent and the conductor as to what occurred when the respondent was made to leave the train, and clearly it would aid the jury in determining which of them told the truth to know their respective conditions as to sobriety. It is no justification to say that the comment occurred when the court was ruling on the admission of evidence and not in the charge to the jury, as it is just as harmful to the party offering the evidence to have it discredited by the trial judge in advance of its admission as it is to have it discredited afterwards. For cases from this court when the general question is discussed, see State v. Walters, 7 Wasb. 246, 34 Pac. 938, 1098; State v. Wroth, 15 Wash. 621, 47 Pac. 106; State v. Ilyde, 20 Wash. 234, 55 Pac. 49; State v. Surry, 23 Wash. 655, 63 Pac. 557; Miller v. Dumon, 24 Wash. 648, 64 Pac. 804; French v. Seattle Traction Co., 26 Wash. 264, 66 l'ac. 404; State v. Bliss, 27 Wash. 463, 68 Pac. 87; State v. Eubank, 33 Wash. 293, 74 Pac. 378; State y. Manderville, 37 Wash. 365, 79 Pac. 977; Patten v. Auburn, 41 Wash. 644, 84 Pac. 594.

The respondent testified that on the afternoon of the day of the injury he visited Priest River, going and coming on the appellant's trains. On cross-examination the appellant sought to ascertain the purpose of this visit, but objections to its questions directed to that end were sustained. It would seem that this might properly have been gone into. The respondent was complaining of physical injuries which his own testimony indicated were somewhat severe. As he paid this visit before he consulted with a physician concerning his injuries, and on the afternoon of the day he received them, it would have thrown some light on the question whether or not he was exaggerating his condition to know whether this visit was one of necessity or one of mere convenience. The cross-examination should have been permitted at least to that extent.

Since there must be a new trial, it is not necessary to inquire whether or not the verdict is excessive.

The judgment is reversed, and a new trial granted

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by John Collins, prosecuted after his death by Angie B. Collins and others, executors and trustees under his will, against James P. Gleason and another. From a judgment for defendants, plaintiffs appeal. Alfirmed.

William Martin and Jas. F. McElroy, for appellants. John B. Hart and Maurice D. Leebey, for respondents.

CROW, J. This action was commenced on June 22, 1901, by John Collins, now deceased, against James P. Gleason, H. S. Connor, and the Fidelity Trust Company of Seattle, a corporation, to compel the conveyance of certain lands in sections 25 and 30, townsbip 21 N., of range 5 E., W. M., in King county, Wash. The plaintiff in his amended complaint, dated October 2, 1902, alleged: That Connor and Gleason were the president and secretary of the defendant corporation; that on or about January 22, 1901, an action, Xo. 31, 138, had been commenced by John Collins, as plaintiff, against the same defendants, to compel the defendants to transfer to him certain stock in the Fidelity Trust Company, or to reconvey certain property theretofore conveyed by him to such company. That the cause was afterwards settled, a written memorandum or agreement being made as follows: "Seattle, Washington, May 3rd, 1901. Collins surrender 0240 shares, stock and trust certificate on Island County land. Fidelity Trust Company make special warranty to Collins for all real estate conveyed by him to company, mortgage on tide land assumed by Collins & take property in mortgage. Company also to convey to Collins one half interest in Anacortes judgment. All monies now on hand belonging to corporation, except Colman money now in court to go to plaintif. Collins vs. Fidelity Trust

HADLEY, C. J., and CROW and RUDKIN, JJ., concur.

(47 Wash. 62)

COLLINS et al. v. GLEASON et al.

(Supreme Court of Washington. Sept. 6, 1907.) 1. JUDGMENT-RES JUDICATA.

A judgment granting the relief prayed for in a suit to specifically enforce a contract for the conveyance of real estate by compelling a conveyance is a bar to a subsequent suit for the

Company to be dismissed, each party to pay own costs. Defendants to have Colman money now in court, and to have no other money from plaintiff. Defendants to pay no cost of receivership. Martin vs. Fidelity Trust Company to Je dismissed without cost to either party. Connor vs. Collins to be dismissed without cost to either party. Fidelity Trust Company vs. Colman to be dismissed without cost and release of all claims against each other, growing out of any of said suits. Roberts & Leehey, Attorneys for Defendant. William Martin, Attorney for Plaintiff." That the plaintiff fully performed the agreement on his part. That the plaintiff had theretofore conveyed to the defendant company the land above mentioned, but that the defendant neglected and refused to reconvey it to him in pursuance of the terms of the written agreement. The defendants in their answer, after making certain denials, in substance, alleged that the defendant company never authorized the written agreement; that it had never ratified the same; that the plaintiff was not entitled to any conveyance, and that the defendant company, by its answer, offered, by placing all parties in statu quo, to rescind any action its officers had taken towards part performance of the written agreement. To this answer the plaintiff originally replied by denials only. On July 11, 1903, it having been suggested to the trial court that the plaintiff John Collins had died testate, an order was entered substituting Angie B. Collins, John Francis Collins, and R. L. Hodgdon, his executors and trustees, as parties plaintiff. On March 30, 1904, the substituted plaintiffs, with leare of court, served and afterwards filed a supplemental reply, in which they affirmatively alleged that theretofore, to wit, on May 7, 1.901, John Collins, es plaintiff. instituted

is . action No. 32,4.32 against the Fidelity Trust Company of Seattle, one of the defendants herein, to compel specific performance on the part of the Fidelity Trust Company, of the above contract, by requiring it to assign to Collins a certain lease from the state of Washington to the Fidelity Trust Company of il certain harbor area in King county, Wash., in said lease and in the pleadings of said action particularly described, being lease No. 61, the said contract upon wbich said action was brought being the same contract and agreement set forth in the amended complaint and the answer in this action; that thereafter such proceedings were had in said cause No. 32, 152, that on August 20, 1902. a final decree was entered in favor of the plaintiff Collins, requiring the defendant Fidelity Trust Company to specifically perform the contract by assigning the lease; that the Fidelity Trust Company appealed to the Supreme Court of the state of Washington; that on Octobor 3, 1903, subsequent to the filing of the origiral reply herein, the Supreme Court

affirmed said decree, and that all issues raised by the affirmative defense herein were raised in said cause No. 32,4.52, and determined in favor of the plaintiff Collins. Upon these issues trial was had and, after the plaintiffs had introduced their evidence and rested, the defendants declined to offer any evidence, but moved for judgment. The trial court thereupon, without making any findings of fact, entered a final judgment dismissing the action. The plaintiff's have appealed.

The appellants contend that the trial court erred in dismissing the action. The respondents contend (1) that the act of the attorneys in making the memorandum of settlement was unauthorized ; (2) that the sanie was nerer ratified by the Fidelity Trust Company ; and (3) that, even if it was executed with full authority and subsequently ratified, this action cannot be maintained, as the appellants' testator during his lifetime maintained one action to enforce the same agreement in which he obtained judgment, and that if the testator ever had any cause of action against the respondent company, as alleged in the complaint herein, the same was split by the former action, and the present one cannot be maintained.

The last point being conclusive of this case, the others will not be considered. It appears from the evidence, as well as the allegations of the supplemental reply, that action No. 32,1.52 in the superior court of King county was instituted for the purpose of securing the specific performance of the identical agreement upon which the present ans tion is based, and that the decree entered therein, in favor of appellants' testator, was afterwards affirmed by this court. Collins v. Fidelity Trust Company, 33 Wash. 136, 73. Pac. 1121. This is a subsequent and independent action, brought on the same contract. Although appellants' testator heretofore compelled the respondent, the Fidelity Trust Company, to specifically perform the contract by assigning to him the tide land lease, they are now seeking to compel it to further specifically perform by conveying to them the land in dispute. Appellants' testator never had more than one cause of action on the contract. The failure of respondent to convey all the lanels contemplated thereby was but one breach which authorized one action only. For one breach of an indivisible contract there can arise but one cause of action, and, if in such action the plaintiff does not demand the entire relief to which he is entitled, he cannot afterwariis complain. If this action can now be maintained. the appellants (an hereafter maintain any number of additional actions upon the same contract. The recent case of Kline v. Stein (Wash.) 50 Pac, 1041, is controlling here.

Appellants contend that the respondents cannot claim they are estoped by the former

judgment, for the reason that the respondents rejected the offer and tender of the responddid not plead such former judginent. The ents to place the parties in statu quo. appellants themselves pleaded it in their The judgment is affirmed. supplemental reply, and, when they did so, the respondents demanded judgment upon HADLEY, C. J., and FULLERTON, RUDthe pleadings. The former judgment had KIN, MOUNT, and DUXBAR, JJ., concur. not been entered when the original answer was made herein. The facts were all be

(47 Wash. 69) fore the court in this action, and we fail to

COLLINS et al. v. GLEASON et al. see why it should not apply the law to the

(Supreme Court of Washington. Sept. 6, 1907.) facts pleaded and admitted, whether plead

JUDGMENT - RES JUDICATA - SPECIFIC PERed by the respondents or the appellants. The FORMANCE. appellants further contend that, at the time A judgment granting the relief prayed for of the bringing of the former action, they

in a suit to specifically enforce a contract for

the conveyance of real estate is a bar to a had not discovered the failure of the respond

suit to reform a deed executed in part performents to convey the land now in dispute; that ance of the contract, since actions to reform the they learned of such omission later but prior

deed and specifically enforce the contract may be to the commencement of this action. The

joined. amended complaint, however, contains no al- Appeal from Superior Court, King County : legation that such want of knowledge was R. B. Albertson, Judge. due to the fraud or deceit of the respond- Action by John Collins, prosecuted after ents. Appellants' testator did discover such his death, by Angie B. Collins and others, failure to convey, not only before the former executors and trustees under his will, against judgment was entered, but also before he James P. Gleason and others. From a judgfiled his amended complaint in this action. ment for defendants, plaintiffs appeal. AfHe had ample opportunity to ask the addi.

firmed. tional relief, by specific performance, in such William Martin and Jas. F. McElroy, for amended complaint, but failed to do so. It is appellants. John B. Hart and Morris D. a general rule in both law and equity that, Leehey, for respondents. where a party inadvertently or by reason of his own negligence or mistake, and with- PER CURIAM. This action, which was out fault or fraud of the adverse party, takes

commenced on June 22, 1901, arises upon the judgment or decree for less than he is entitl

same memorandum of agreement upon which ed to recover, he is estopped from bringing

cause No. 6,561, Collins v. Gleason et al. (dea second action for the residue. When the

cided by this court on this date), 91 Pac. 566, appellants' testator discovered the omission

is based. The plaintiffs here sue to reform a or failure of the respondents to make an

deed executed by the defendant, the Fidelity assignment of the tide land lease, it was his

Trust Company, in part performance of that duty to immediately ascertain whether other agreement; it being alleged that certain land omissions or breaches of the contract existed,

was by mutual mistake incorrectly described and to bring his action for all remedies to

therein. From a judgment in favor of the which he was then entitled. Having failed

defendants, the plaiutifüs bave appealed.

The appellants have heretofore recovered to do this, he certainly could in his amended complaint have demanded the further specific

a judgment for specific performance in a sep

arate action on the same contract; hence on performance now sought, as the record dis

the authority of Collins v. Gleason et al., No. closes that he did' actually learn all the

6,561, supra, the judgment herein must be affacts in ample time to do so. In Kline v. Stein, supra, we said: “But the appellants

firmed. Although the appellants here seek to assert that the allegation to the effect that

reform the original contract, there has never

theless been a splitting of actions, as actions this tract was left out of their original complaint through accident and mistake was

to reform and specifically enforce the same

contract may be joinel. We will, however, made advisedly, and, inasmuch as the re

state that we do not find the evidence suffispondents' motion for judgment on the plead

cient to sustain the appellants' allegation of ings concedes it to be true, this fact alone

mutual mistake. is sufficient to show the inconclusiveness of

The judgment is affirmed. the original judgment. This contention, also, mistakes the rule. If the appellants have

(47 Wash. 35) by accident or mistake on their part failed

STATE ex rel. CLIFFORD V. SUPERIOR to recover all of the land that they were

COURT OF PIERCE COUNTY et al. entitled to recover, their remedy is not to sue for the omitted portion, but is rather

(Supreme Court of Washington. Sept. 5, 1907.)

CERTIORARI — DISMISSAL- TERMINATION to seek relief in the original action by open


CONTROVERSY. ing up the judgment amending their plead

Where, pending a writ of review for the ings, and trying anew their rights to the revision of an order dismissing an application property." The appellants in this action to show cause why a witness should not be com:

pelled to give testimony by deposition in response have not only elected to retain the original

to a subpana duces tecum in a pending actioli, judgment and its fruits, but they have also the action was disinissed without prejudice, the

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controversy was thereby terminated, and the writ would be dismissed.

Application by the state, on relation of M. L Clifford, for the revision of an order of the superior court of Pierce county and others dismissing a petition to compel a witness to give testimony by deposition under a subpena duces tecum. Petition dismissed.

R. F. Laf'oon, for plaintiff. G. C. Israel, for respondents.

2. SAME.

A private citizen, having no special interest in land deeded by the state to another, but merely claiming that he was prevented by fraud from bidding for it at the public sale, and not being able to require it to be resold if the deed be set aside, and as a taxpayer not having suffered an injury different from that suffered by the public at large, cannot maintain a suit to set aside the deed.

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by W. W. Powers against Edwara E. Webster and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Million & Houser, for appellant. John D. Atkinson, Atty. Gen., for respondent land commissioner.

PER CURIAN. A commission, with interrogatories annexed, to take the deposition of a witness, was issued by the district court of the district of Alaska, Division No. 1, at Juneau, Alaska. The cause wherein the commission issued was then pending in said court, and the witness whose testimony was sought was the plaintiff in the action and resided in Pierce county, Wash. The commission was directed to J. L. Clifford, a notary public residing in Pierce county. Upon receipt of the commission the commissioner attempted to take the testimony of the witness, and it is claimed that the witness refused to honor a subpæna duces tecum to produce certain letters and documents, and refused to answer certain interrogatories propounded to him.

The commissioner thereupon applied to the superior court of Pierce county for an order requiring the witness to show cause why he should not be compelled by order of said court to produce the documents and answer the interrogatories aforesaid. An order to show cause was issued, and, upon return thereto, the court held that it was without jurisdiction to make any order in the premises, and dismissed the petition. Application was then made by the commissioner to this court for a writ of review to review the action of the superior court. During the pendency of the proceeding before this court, a certificate from the said district court for the district of Alaska has been filed here, showing that the original cause in which the commission to take the deposition was issued was by that court dismissed without prejudice on the Sth day of January, 1907. The relator, in an affidavit filed, does not controvert the fact of dismissal, but asserts that the testimony should still be taken to preserve it for future use in any action that may be brought concerning the same subject-matter. Inasmuch as the action in which the commission to take testimony was issued has been discontinued, we think it should be held here that the controversy presented by the relator's application here has ceased.

The relator's petition is therefore dismissed.

MOUNT, J. The appellant brought this action to set aside a sale of school lands, to cancel a deed therefor executed by the state to respondent Croft, and to compel the respondent Ross, the state land commissioner, to reoffer the land for sale. The lower court sustained a demurrer to the amended complaint, upon the grounds that the court had no jurisdiction, that plaintiff had no legal capacity to sue, that there is a defect of parties, and that the complaint fails to state facts sufficient to constitute a cause of action. The plaintiff refused to plead further, and the action was dismissed.

The complaint alleges, in substance, that the state has been, and now is, the owner of the school land in question, being 10 acres situate in King county; that prior to June, 1906, Joseph I. Croft was in possession of the land under a lease, and had a sawmill thereon of the value of $1,000 and no more; that on June 1, 1906, said Croft applied to the state board of land commissioners for appraisement and sale of the lands, and thereafter the land was appraised at $350 per acre, and ordered sold; that thereafter certain of the defendants and E. W. Ross, land commissioner, entered into a conspiracy to obtain said land at less than its real value; that, in pursuance of that conspiracy said Ross caused the appraisement to be reduced to $100 per acre, and fraudulently caused the sawmill thereon to be appraised at $5,453.34; that said land at said time was worth $1,000 per acre, exclusive of the improvements; that on June 30, 1906, at the time and place where the sale was fixed, the plaintiff and certain of the defendants appeared anıl the land was offered for sale by the deputy auditor of King county, where the land was located, whereupon Joseph I. Croft bid the sum of $6,453.34, the amount of the appraised value as reduced as aforesaid; that thereupon the respondent Raymond made a bid of $14,153.34, and there being no other bids, the land was struck off to said Raymond ; that said Raymond fraudulently refused to make payments upon his bid, and thereafter the said Ross fraudulently and unlawfully reported the sale of

(47 Wash. 99)

POWERS v. WEBSTER et al. (Supreme Court of Washington. Sept. 6, 1907.) 1. PUBLIC LANDS- SUIT TO CANCEL DEED FROM STATE-PARTIES.

The state is a necessary party to a suit to cancel a deeil from it, the property reverting to it if the deed is canceled.

said land to said Joseph I. Croft for the satisfied, it can, on its own account, authorize sum of $1,000, and induced the Governor and proceedings to vacate the patent or limit its Secretary of State to issue a patent for said operation." If the patent may be avoided land to said Croft; that said bid of said for fraud, the appellant has no interest in Raymond was a fraudulent bid, for the pur- the land except as a citizen of the state. pose of preventing the plaintiff from bidding When the deed of the state is set aside, the at said sale; that said Ross knew that the land reverts to the state. The appellant caninterests of the state had been injuriously not even require the land to be resoldi, beaffected by fraud and collusion, and that cause the power of resale rests in the discresaid Croft was not the highest bidder at tion of the board of state land commissionsaid sale; that the defendants knew that er's. State ex rel. Bussell v. Bridges. 30 plaintiff was desirous of bidding on said Wash, 268, 70 Pac. 506; State ex rel. l'elton property at said sale, and sale, and was present

V. Ross, 39 Wash. 399, 81 Pac. 80. Vor with $10,000 to bid for said land, but was can appellant maintain the action as a citiprevented from bidding by the conduct of zen and taxpayer. Jones v. Reed, 3 Wash. said Raymond, who was in collusion with St. 57, 27 Pac. 1067; Birmingham v. (heetthe other respondents; that appellant had ham, 19 Wash. 057, 51 Pac. 37; Tacoma v. no knowledge of the conspiracy or fraudu- Bridges, 25 Wash. 221, 6) l'ac. 186; State lent acts of respondents, and therefore filed ex rel. White v. Fish Company, +? Washi. no affidavit with the commissioner of lands

409, 85 Pac. 22; State ex rel. Shores v. Ross setting forth fraud or asking for a resale; (Wash.) 87 Pac. 262. In the case of Tacoma that, if said land is offered for resale, plain- 5. Bridges, supra, this court said: “Whattiff will bid $10,000 therefor; that plaintiff

erer may be the rule elsewhere, it is the has demanded of the Attorney General that

rule in this state that a taxpayer and citihe bring an action to set aside said sale, but

zen suing in a private capacity cannot mainthe Attorney General reluses to do so; that

tain a suit to enjoin a state officer from plaintiff is a resident and taxpayer of King

committing a breach of his public duty, county, and will suffer irreparable injury if

without showing that he would suffer an indefendants are permitted to retain said land,

jury thereby differing in kind from that sufand brings this action as a taxpayer and as

fered by the public at large." And in State an intending buyer and on behalf of others

ex rel. Shores v. Ross, supra, we said: “If

the deed to these tide lands had been delivsimilarly situated. The trial court properly sustained the de

ered after the respondent was reliably in

formed that the application and bidding inurrers. The first object of the action is to set aside the deed from the state to re

were fraudulent, to the detriment of the

state, it would be the duty of the respondent spondent Croft. If the deed of the state is

[commissioner of public lands] or of some set aside, the property reverts to the state. Therefore the state is a necessary party to

official of the state to immediately cause an such an action. The action cannot be main

action to be brought to cancel said deed, and tained at the suit of a private person who

to recover the property, title to which was

thus fraudulently acquired." 26 Am. & Eng. has no interest in the property. St. Louis

Enc. of Law (2d Ed.) pp. 39-397. Smelting Co. v. Kemp. 104 L'. S. 036, 26 L.

The complaint, having shown that the apEd. 875; Welsh v. Callvert, 34 Washı, 250,

pellant has no special interest in the lands 75 Pac. 871; Horsky v. Moran, 21 Mont.

and not being authorized to maintain the 345, 53 Pac. 1064; Tacoma T. Bridges, 25

action as a taxpayer, fails to state a cause Wash. 221, 65 Pac. 186; State es rel. Shores

of action. v. Ross (Wash.) 87 Pac. 262. In the case of

The judgment is therefore affirmed. St. Louis Smelting Co. v. Kemp, supra, the court said: “If in issuing a patent its offi

HADLEY, C. J., and CROW, ROOT, RUDcers took mistaken views of the law, or

KIX, and DUNBAR, JJ., concur. drew erroneous conclusions from the evidence, or acted from imperfect views of their duty, or even from corrupt motives, a

(47 Wash. 85) court of law can afford no remedly to a par- FREDERICK & NELSOX V. SPOKANE ty alleging that he was thereby aggrieved.

GRAIN ('0. et al. lle must resort to a court of equity for re- (Supreme Court of Washington. Sept. 6, 1907.) lief, and even then his complaint cannot be

ASSIGXMEXTS – EQUITABLE ASSIGNMEXTS – heard unless be (onnerts himself with the BILL OP EXCIIANGE. original source of title, so as to be able to

Laws 1899, p. 302, c. 149, $ 126, defines a

bill of exchange as an unconditional order in aver that his rights are injuriously affecteil writing, addressed by one person to another, by the existence of the patent; and he must signed by the person giving it, requiring the pergrossess such equities as will control the le

son to whom addressed to pay on demand or at a

fixed or determinable time a sum certain to order gal title in the patentee's hands. Boggs r.

or to bia rer. Section 127, p. 363, provides that Merrel Mining Co., 1+ Cal. 279, :;63. It does a bill of itself does not operate as an assignnot lie in the mouth of a stranger tu the title

ment of the funds in the hands of the drawre, and to complain of the art of the government

that the drawer is not liable unless he accepts

the same. Held, that a writing addressed by with respect to it. If the government is dis- ¡ one to another, requesting him to pay a third

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