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(47 Wash. 178)

agreed that the father should pay the sum BENEKE et al. v. BENEKE et al. of $1,000 to each of the four children, and (Supreme Court of Washington. Sept. 18, 1907.) that upon the distribution of the estate cer1. HUSBAND AND WIFE-PROPERTY PURCHASED tain described property should be awarded IN PART WITII COMMUNITY FUNDS.

and decreed to each child. A decree of disProperty purchased in part with community tribution was entered in pursuance of this funds is community property to the extent and in the proportion that the consideration is fur- agreement or stipulation, and the property nished by the community.

now in controversy, subject to a mortgage of (Ed. Note.-For cases in point, see Cent. Dig. $1,300, together with certain other property, vol. 26, Husband and Wife, $ 901.]

was awarded to Henry Beneke. Upon the 2. Same.

entry of the decree of distribution Henry That the community advanced money to Beneke and the plaintiff herein executed compromise or procure the release of a disputed claim against the separate property of one of

their promissory note in the sum of $5,300 the spouses does not convert the same or any to pay each of the four children the sum of definite portion thereof into community property. $1,000 as agreed, and to take up the $1,300

mortgage already on the property; and the Appeal from Superior Court, Spokane County; Miles Poindexter. Judge.

land in controversy was mortgaged to secure

the payment of the note. The note was aftAction by Anna W. Beneke, personally and as administratrix of the community proper

erwards paid, in part out of the separate

funds of the plaintiff and in part out of the ty of Henry Beneke, deceased, and Anna W.

community funds of IIenry Beneke and the Beneke, his wife, against Henry J. Beneke,

plaintiff, according to the allegations of the ils alleged executor of the estate of Henry

complaint. Henry Beneke died testate in Beneke, deceased, and others. Judgment for

Spokane county on the 29th day of July, defendants, and plaintiffs appeal. Affirmed. See 89 Pac. 150.

1905, having by will disposed of the property

in controversy to certain of his children. W. D. Scott and H. M. Stephens, for ap- This action was thereupon prosecuted in the pellants. Danson & Williams and Fred H. name of the surviving wife, as administraMoore, for respondents.

trix of the community property of herself

and her deceased husband, against the exRUDKIN, J. In the month of August,

ecutor of the will and the devisees named *!), Mary Zander Beneke died intestate in therein, to recover possession of the property Spokane county. At the time of her death as a part of the community estate. If comse and her husband, Henry Beneke, were

munity property, her right to recover should ssessed of the real property now in contro- probably prevail; but, if not, it is manifest iersy, together with other property in Spo- that her complaint should be dismissed. kane county, all of which was either the The court below gave judgment in favor of separate property of the husband or the the defendants, and the plaintiffs appeal. community property of the husband and If we concede that the property in dispute wife. Soon after the death of the wife a was the community property of Henry Bendispute arose between the surviving husband eke and his first wife, we do not understand and the four children of the marriage over by what process it was converted into the the distribution of the estate; the surviving community property of Beneke and his sechusband claiming the whole as his sole and ond wife. In any view of the case, Henry separate property, and the children claiming Beneke had an undivided one-half interest in an undivided one-half interest therein as the property as surviving husband, and, if community property and as heirs at law of it be conceded that he and the appellant purtheir deceased mother. An action was there- chased the undivided one-half interest beupon commenced by the surviving husband longing to the children, this would not conin the superior court of Spokane county

vert the whole into community property. against the heirs of the deceased wife to es- The utmost that can be said in favor of the tablish title in himself. During the penden- appellant is that the community would have cy of this action, and on the 19th day of an interest in the property, in the proportion May, 1897, said Henry Beneke and the plain- that the funds advanced by the community tiff Anna W. Beneke intermarried and main- bore to the entire purchase price, under the tained the relation of husband and wife decision of this court in Heinz v. Brown, 90 thereafter until the death of the husband on Pac. 211. But what would that interest be? July 29, 1.903. Soon after this marriage Hen- The children were paid in part for their inry Beneke and his children entered into an terest by the conveyance or distribution of agreement or stipulation, reciting that Henry property in which Henry Beneke confessedBeneke claimed all the real estate in process ly had a one-half interest, and in which the of adıninistration as his sole and separate appellant had none. One thousand three property, that the children claimed a one- hundred dollars of the money went to satisfy half interest therein as community property, an existing mortgage, and the remainder ind that they deemed it for their best inter- went to satisfy the claims of the heirs in posts to settle their conflicting claims and to part. What proportion this sum bore to the have the estate distributed without further entire amount received by the heirs is uncerlelay or expense; and it was thereupon 1 tain and incapable of ascertainment; and

91 P.-11

when we consider that the money was paid , chased the same for medical purposes. At for the release of a disputed claim, which the time of the sale the appellant kept in his was very doubtful at best, the uncertainty is place of business a registry book, in which still further increased. If the community he entered the name of the purchaser, the advances money to compromise or procure quantity purchased, the date, and for what the release of a disputed claim against the purpose used, as required by section 13 of the separate property of one of the spouses, in pharmacy act of 18!!! (Law's 1899), l. 9.2., the nature of things this cannot convert the c. 121); but such sale was not made on the whole or any definite portion into community written prescription of a reputable physician, property. If the appellant has any claim, it as provided by section 6 of the act of Febis in the nature of a claim against the sep- ruary 2, 1888 (Laws 1887–88, p. 123, c. 72; arate estate of Henry Beneke for moneys ad- Ballinger's Ann. Codes & St. $ 2937), and by vanced by the community, such as she is the ordinance of the city of Seattle, nor did prosecuting in the action instituted after the the appellant have a license from the city for dismissal of the present action in the court the sale and disposal of malt liquors. below. In view of the conclusion we have

these facts the appellant contends that the reached on the merits, we express no opin- provisions of the act of February, 1888, and ion on the motion to dismiss the appeal. of the ordinance of the city of Seattle, which

There is no error in the record, and the only authorize druggists and pharmacists to judgment is affirmed.

dispense spirituous, fermented, and malt and

other intoxicating liquors without a license, ILADLEY, C. J., and CROW, FULLER

when done in good faith upon the written TON, and MOUNT, JJ., concur.

prescription of a reputable physician. Wire superseded by the pharmacy act of 1899, su

pra, and that since the passage of the latter (47 Wash. 172)

act druggists and pharmacists may sell inCITY OF SEATTLE v. FOSTER.

toxicating liquors without a license, by mere(Supreme Court of Washington. Sept. 17, 1907.)

ly keeping and making the proper entries in STATUTES-REPEAL-IMPLIED REPEAL.

the registry book above referred to. Under the rule that repeals by implication

With such a contention we are unable to are not favored, Laws 1899, p. 222, c. 121, $ 15, requiring a pharmacist to enter in a book agree. While the pharmacy act of 1899 prosales of intoxicating liquors, and providing that vides that sale of wines and spirituous and no liquors shall be sold except for medical, etc.,

male liquors may be made by pharmacists purposes, which is a part of the statute relat

and druggists for medical, scientific, mechaniing to the practice of pharmacy, does not impliedly repeal Laws 1887–88, p. 125, c. 72, $.6 cal, and sacramental purposes without a liBallinger's Ann. Codes & St. 8 2937), authoriz

cense, it does not in terms or by implication ing a pharmacist to sell intoxicating liquors

dispense with the necessity for a physician's without a license only on the prescription of a physician, which is a part of the chapter re

prescription or certificate when the liquors lating to intoxicating liquors.

are sold to be used for medical purposes. [Ed. Note.-For cases in point, see Cent. Dig. The well-established rule that repeals by imvol. 44, Statutes, $ 229.

plication are not favored in law has a peAppeal from Superior Court, King County;

culiar application here, for the two acts unA. W. Frater, Judge.

der consideration relate to widely different

subjects-the former, to the sale and disposal C. Foster was convicted of selling intoxi

of intoxicating liquors; the latter, to the concating liquors without a license, in violation

duct of the drug business. We are firmly of an ordinance of the city of Seattle, and

convinced that the Legislature did not intend he appeals. Affirmed.

to permit a drug store to become a grogshop Morris, Southard & Shipley, for appellant.

by merely keeping a formal record of its Ellis De Bruler, for respondent.

sales, and such would be the ultimate effect

of upholding the contention of the appellant. RUDKIN, J. The appellant, Foster, was There is no error in the record, and the convicted of the crime of selling intoxicating judgment is affirmed. liquors without a license, in violation of an ordinance of the city of Seattle; and from

HADLEY, C. J., and CROW, MOUNT, and the judgment of conviction the present ap

FULLERTON, JJ., concur. peal is prosecuted. The case was submitted to the court below

(47 Wash. 174) upon an agreed statement of facts, the ma

BALLARD et al. V. SLYFIELD et al. terial parts of which are as follows: The appeilant conducted a pharmacy in the city of (Supreme Court of Washington. Sept. 18, 1907.) Seattle for the compounding, dispensing, and

HUSBAND AND WIFE-COMMUNITY PROPERTY

PRESCMPTIOX. sale of drugs, medicines, poisons, wines, and

Property acquired by purchase during mar. malt and spirituous liquors, under the phar- ringe is presumed to be community property, and many laws of the state. On the 20th day of the burden rests on the spouse asserting its September, 1906, he sold to Mrs. John Kelly

separate character to establish his or her claim

by clear and satisfactory proof. two bottles of malt liquor; tlie purchaser

¡Ed. Vote.-For cases in point, see Cent. Dig. stating at the time of purchase that she pur-10. 20, Husband and Wife, $8 913, 914.]

2. SAME EVIDENCE-SUFFICIENCY.

estate, and the title to said property remainEvidence held to show that certain property | ed thereafter unchanged until the conveywas the separate property of the wife, and not community property.

ance thereafter to the defendant Sarah Sly[Ed. Yote. For cases in point, see Cent. Dig.

field, hereinafter referred to; and thereafter, vol. 26, IIusband and Wife, $ 916.]

during his lifetime, the said Irving Ballard

regarded, considered, and declared said propAppeal from Superior Court, King Coun- erty to be the separate property of his said ty: George E. Morris, Judge.

wife, and at the time of the death of the said Action by Irving M. Ballard and others Irving Ballard he had no right, title, or inagainst Sarah Slyfield and others to quiet terest in or to, or made any claim to, said title and recorer rents and profits. Judg. | property, or any part thereof, so that, upon ment for defendants, and plaintiffs appeal. his death, no interest therein passed to the Affirmed.

plaintiffs, or either of them, nor have the F. A. Gilman, for appellants. IIarold Pres

plaintiffs, or either of them, ever had any inton, for respondents.

terest therein.” This finding, of course, supports the judgment of dismissal; but the ap

pellants earnestly insist that it is not supRUDKIN, J. Irving Ballard and Lucinda

ported by the testimony. M. Ballard intermarried on the 20th day of December, 1870, and continued to reside to

The law governing this class of cases is

well settled in all the community property gether as husband and wife until the death

states. Property acquired by purchase durof the husband in the city of Seattle on December 30, 1880. On the 15th day of April,

ing the marriage is presumed to be communi1875, Edward A. Thorndyke and wife con: ty property, and the burden rests upon the

spouse asserting its separate character to esveyed the property now in controversy to

tablish his or her claim by clear and satisLucinda M. Ballard, the wife of Irving Bal

factory proof. The difficulties of obtaining lard. The present action was instituted on

proof under the circumstances disclosed by the 30th day of January, 1906, by the heirs

this record are apparent. The property was at law of Irving Ballard, deceased, against acquired 30 years before the adverse claim the grantees of Lucinda M. Ballard, to quiet

was asserted. One of the parties to the title to an undivided one-half interest in the

transaction is dead, and the other is an adproperty and to recover the rents and profits

verse witness. The testimony of the survivfor the six years next preceding the com

ing wife is of little importance, consisting mencement of the action. The defendants

largely, as it does, of a disclaimer of knowlhad judgment below, and the plaintiffs ap

edge or recollection of either law or facts. peal.

But, in so far as it may tend to support the The court found, among other things :

claim of the appellants, it is utterly incon“That the consideration of said conveyance

sistent with the acts and conduct of the witwas the sum of $900 then and there paid to

ness covering the period of 25 years since the grantors therein by the said Irving and

her husband's death. Soon after his decease Lucinda M. Ballard. That said sum of $900

she filed a petition for letters of administrawas made up, either wholly or in large part,

tion on his estate, purporting to contain a of money which was then and there the sen

list or statement of all his property; but no arate property of the said Lucinda M. Bal

mention was made of the property in dislard, and which she had previously received

pute. The same is true of the verified invenas an inheritance from the estate of her ma

She twice mortgaged the propternal grandfather; and the remainder. if

erty for her own benefit, and finally conany, of said sum, was paid out of the com

veyed it by warranty deed, receiving the munity funds of the said Irving and Lucinda

full consideration therefor. The conduct of M. Ballard. That at the time of said con

the appellants was equally inconsistent. No veyance it was the intention of both the said

claim against the property was asserted by Irving Ballard and the said Lucinda M. Bal

any or either of them until 6 years after the lard. then expressed, that the conveyance

property had passed into the hands of stranshould operate to vest the title to said prop

ger's. At the time of the assertion of this erty in the said Lucinda M. Ballard as her

claim the eldest child was 32 years of age, sole and separate estate, and, if any part of

or 11 years beyond his majority, and the the purchase price therefor was paid out of

youngest, a daughter, 2+ years of age, or 6 community funds, it was then and there the

years beyond her majority. intention of the said Irving Ballard to make

When we take into consideration the a gift thereof to his said wife, and to make

acts and conduct of the widow and children a gift to her of said property so far as any

during all these years, the declarations made part of the consideration therefor may have

by the husband in his lifetime, and all the been contributed out of the community funds,

facts and circumstances in the case, and the deed was made to run to the said

think the court was fully warranted in makLucinda M. Ballard by the express direction,

ing the above finding, and its judgment is at the time, of the said Irving Ballard, and

accordingly affirmed. said conveyance then and there operated to vest the title to said property in the said HADLEY, C. J., and CROW, FULLERLuciuda M. Ballard as her sole and separate | TOX, and MOUNT, JJ., concur.

tory filed.

(47 Wash. 158)

STONE et al. v. MOODY et ux. (Supreme Court of Washington. Sept. 11,

1907.) VENDOR AND PURCHASER-CONTRACT_VALID

ITY – MISTARE – CANCELLATION – UNJUST · PROVISION.

Where plaintiffs made a contract to sell land to defendants not knowing it contained a provision requiring them to accept as cash any contracts of sale which defendant might make of portions of the land to other persons, and plaintiff's afterwards gave receipts for contracts so made by defendant, relying on his interpretation of the provision of their contract with him that it did not prevent their receiving payment otherwise, if payments were not made on the contracts made by him with others, and subsequently he insists on the opposite construction, they may have their contract with him canceled unless he agrees to elimination of the provision.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, $$ 35-37.)

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Iredell S. Stone and others against H, L. Moody and wife. Judgment for defendants. Plaintiffs appeal. Reversed and remanded, with instructions.

M. F. Gose, T. P. Gose, and C. C. Gose, for appellants. W. H. Winfree, for respondents.

ROOT, J. This case was here once before, and may be found reported in 41 Wash, 680, 84 Pac. 617, 5 L. R. A. (N. S.) 799, to which reference is made for a more complete statement of the facts involved. Upon the first trial a motion for nonsuit was made at the close of plaintiffs' case, and no evidence was introduced by defendants. The court, having sustained the latters' motion, dismissed the action. This court reversed the judgnient and remanded the case for a new trial. Upon the second trial both plaintiffs and defendants introduced evidence. The trial court made findings and conclusions in favor of defendants, and entered judgment and decree thereupon. From this the present appeal is prosecuted.

Appellants maintain that they did not know that the contract contained the provision requiring them to accept as cash any contracts of sale which respondent Moody might make of portions of the land to other persons. Taking into consideration the extraordinary character of this provision, the opportunity which it would afford for fraud, and considering the matter in the light of all the evidence adduced, we are satisfied that they did not know that said provision was in the contract. Subsequently, when they signed the receipt for $22,500, on Februry 27, 1904, they learned that the provision above referred to was in the contract which they had signed. Moody, having sold or pretended to sell a portion of the land to one Heller for $22,500 upon terms, requested appellants to sign a receipt for such sum as if the same were a cash payment. At first they declined to do so and asked time to

take legal counsel concerning the same. They testified that Moody refused to give them any time, but threatened to bring action against them at once for heavy damages in case they did not immediately sign the contracts to lleller and the receipt in question; that he thereupon proceeded to explain to them that they did not understand the mat. ter aright; that it was merely a matter of form, and did not deprive them of the right to receive full payment in cash before parting with title to the land; that he had made a sale to IIeller, and it was necessary to have the contracts and this receipt signed in order that Heller, upon making full payment, would be entitled to get a deed froin them; that he intended to deal rightly and honestly by them, and that this was not a receipt for cash, but merely for the contracts which had been entered into by Heller; and that it was not intended to prevent them from getting full payment in cash before deeding the property. They also testified that they did not understand, in signing the receipt, that it was as a receipt for cash, but were told by Moody, and supposed and believed, that it was merely a receipt for the contracts with Heller; that they signed the receipt with the express understanding that it was merely a receipt for the contracts and a matter of form, that was necessary to be gone through in connection with respondent's deal with Heller, and not intended as evidence of a cash payment to them, and that they did not receive the Heller contracts as equivalent to a cash payment, nor intend to give credit upon their contract with Moody for the sum of $22,500, or any sum whatsoever, by reason of said Heller contracts; that they relied upon the explanation and interpretation of the contract as thus given by Moody, and received the Heller contracts and signed the receipt only upon the understanding that their contract bore the interpretation which he had thus assured them of. We are satisfied that the contention of the appellants is substantially correct. It is almost inconceivable that appellants would have signed the contract, had they known it contained the clause requiring them to accept, as cash, contracts that respondent might make for the sale of certain portions of the land. That appellants, after discovering that the contract had this clause, would sign a receipt such as they did on February 27, 1904, with the purpose and intention of thereby giving respondent Moody a credit of $22,500 upon the purchase price for the lands sold by them, when they received no cash, but only the contracts for the purchase of a portion of the land, would be a most remarkable circumstance. It would be unreasonable and inexplicable, unless done under some such understanding as that testified to by appellants. It appears from the evidence that IIeller has paid nothing to appellants ou the contracts made to him. Ap

pellants have received only $1,500 on account mortgage security, and before exhausting the of the sale to Moody.

same, and it being impossible for plaintiff, prior

to a deficiency judgment, to state in his affiThe judgment of the honorable superior

davit the amount of indebtedness-that is, the court is reversed, and this cause remanded, deficiency. with the following instructions: Within 90 [Ed. Note.For cases in point, see Cent. Dig. days from the filing of the remittitur with vol. 5, Attachment. $ 37.) the clerk of the superior court, the respond- Appeal from Superior Court, Lincoln Counents may file with the clerk of that court a

ty; W T. Warren, Judge. written statement that they accept the con- Action by the Advance Thresher Company tract with appellants, with the elimination of

against John M. Schimke and another. An

. the clause requiring appellants to accept as attachment was dissolved, and plaintiff apcash, or give them credit for as cash, the

peals. Affirmed. IIeller contracts, or any other contracts made, or to be made, for the sale of any portion of

Martin & Wilson and W. M. Nevins, for apthe land involved, and that they will accept

pellant. Neal, Sessions & Myers, for re

spondent. such contract with appellants with the interpretation that the payments therein provided for shall be made by or for them at

CROW, J. On August 27, 1906, the plain

tiff, Advance Thresher Company, a corporathe times therein provided in cash. If respondents file this statement in the manner

tion, sold to the defendants, John M. Schimindicated, and shail, within said 90 days, pay

ke and Fred Knoblich, certain farm machinin to the clerk of the court for the benefit

ery. To secure the purchase price the de

fendants executed and delivered to the plainof these appellants the amount of all pay

tiff two notes for $855 and $775, falling due ments, with interest thereon, due under said

October 1, 1906, and October 1, 1907, together contract up to said time, then said contract

with a chattel mortgage on the machinery shall remain in force and effect, with the interpretation as herein given. If respondents

and other personal property. On October 30, do not file such statement, or do not within

1906, the plaintiff commenced this action to said 90 days pay into said court for appel

foreclose its mortgage, and forthwith caused lants the amount of payments and interest

a writ of attachment to be issued and levied due up to said date, then the trial court shall

upon property of the defendant Schimke othenter an order and decree annulling and

er than that described in the mortgage. The canceling tue contract entered into between

trial court, upon motion of defendant Schimappellants and respondents concerning said

ke, entered an order dissolving the attachland, and appellants shall pay in to the

ment, and the plaintiff has appealed. clerk of that court for respondents all mon

The controlling question before us is wheth

er, in an action to foreclose a mortgage, a ey, with interest, paid by respondents to appellants on account of such contract, less the

writ of attachment may be issued before amount of taxable costs allowed in this ac

judgment. Section 5893, Ballinger's Ann. tion to appellants against respondents. Ap

Codes & St. (made applicable to chattel mortpellants shall make said payment to the clerk

gage foreclosures by section 5879, Ballinger's of the court within 10 days from the expira

Ann. Codes & St.), reads as follows: "The

plaintiff shall not proceed to foreclose his tion of the 90-day period hereinbefore mentioned.

mortgage while he is prosecuting any other action for the same debt or matter which

is secured by the mortgage, or while he is HADLEY, C. J., and FULLERTON,

seeking to obtain execution of any judgment MOUNT, CROW, DUNBAR, and RUDKIN,

in such other action; nor shall he prosecute JJ., concur.

any other action for the same matter while he is foreclosing his mortgage or prosecuting

a judgment of foreclosure." Appellants con(47 Wash. 162) ADVANCE TIRESHER CO. v. SCHIMKE

tend (1) that an attachment may issue in an

equitable action, citing Bingbam v. Keylor, et al.

19 Wash. JJ.), 53 Pac. 729; and (2) that the (Supreme Court of Washington. Sept. 12, 1907.)

attachment, being a provisional remedy anATTACHMENT - ON DEMAND OTHERWISE SE

cillary to the main action, is not another acCURED.

tion for the same debt, in contemplation of Under Ballinger's Ann. Codes & St. $ section 5893. While in Bingham v. Keylor, 5893, made applicable to chattel mortgage fore

supra, which was an action for the dissoluclosures by section 5879, and providing that plaintiff sha il not prosecute any other action for

tion of a partnership, an accounting, and the the same matter while he is foreclosing his mort- | appointment of a receiver, it was held that gage, and section 5.351, requiring the affidavit an attachinent might issue in an equitable for attachment to specify the amount of indebtedness, plaintiff in an action to foreclose a

action, in so holding we said: “* * * chattel mortgage may not have a writ of at

Where the object of the action is to dissolve tachment issued before judgment, though an at- a partnership and for an accounting, and it is tachment is an ancillary proceeding; the intent of section 58.3 being to prevent a mortgagee

shown that upon such accounting a balance securing an additiona! reniedy in anticipation will be due the plaintiff, we perceive no realof a deficiency judgment, while looking to the son why the plaintiff may not have an at

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