Our

of such term, must have had in mind the plan with which they were familiar; that is, the auction plan." In a similar case the Supreme Court of Illinois said: "It has been well said by the Supreme Court of Maryland that 'every device and shift which the wit of man could suggest have been invoked to exempt contracts for illegal interest from the operation of the law, but courts should look under the mask to discover the true nature of the transaction.'" Rhodes v. Missouri Savings & Loan Co., 173 Ill. 621, 50 N. E. 998, 42 L. R. A. 93. We think a different rule should obtain in this class of cases. Legislature no doubt had in mind the schemes and devices that might be resorted to by associations from other states and from foreign countries to evade our laws, and doubtless intended that the general and comprehensive definition given should apply to and exclude all such associations from our borders. is the duty of the court to look at the substance rather than the mere form, and we are convinced that public policy and our statute fairly construed demand that the appellant should comply with our laws or cease operations here.

It

There is no error in the record, and the judgment is affirmed.

HADLEY, C. J., and FULLERTON, CROW, DUNBAR, and ROOT, JJ., concur.

(17 Wash. 260)

CURTIN v. CLEAR LAKE LUMBER CO. (Supreme Court of Washington. Oct. 8, 1907.) 1. TRIAL-WAIVER OF ERROR-RULING AS TO SUFFICIENCY OF EVIDENCE-NONSUIT.

Error. if any, in denying a nonsuit is waived where defendant thereafter introduces evidence in his own behalf.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 982.]

2. SAME QUESTIONS FOR JURY-CREDIBILITY OF WITNESSES.

The weight to be attached to the testimony of witnesses is for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial. § 334.]

3. MASTER AND SERVANT-INJURIES TO SERVANT-ACTS CONSTITUTING NEGLIGENCE.

Where the superintendent in charge of cutting trees having directed plaintiff and another employé to cut certain trees, himself cut a tree. a short distance from them, and failed to warn them of its fall, and plaintiff was struck by a flying limb broken by the falling tree from another, such failure to give warning was negligence proximately resulting in plaintiff's injury, and rendered the employer liable. 4. APPEAL-REVIEW-HARMLESS RONEOUS INSTRUCTION.

ERROR-ER

Where, in an action for personal injuries, it did not appear that absent witnesses were under the control of one party more than the other, or that their whereabouts were any better known to one than to the other, and, fc: aught that appeared, it was as much in the power of plaintiff as of defendant to produce them. an instruction that the jury were not to draw any inferences from the absence of witnesses, unless they should find that their whereabouts were known to the parties, and their presence

could have been obtained, did not constitute prejudicial error as to defendant.

Rudkin and Crow, JJ.. dissenting in part.

Appeal from Superior Court, Skagit County; George A. Joiner, Judge.

Action by Frank B. Curtin against the Clear Lake Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed. Kerr & McCord, for appellant. Smith & Cole and Robert H. Lindsay, for respondent.

HADLEY, C. J. This is an action to reThe cover damages for personal injuries. plaintiff was at the time of the accident in the employ of the defendant, and the latter. in the prosecution of its business, was then clearing a right of way, and had its employés engaged at the place of the accident in cutting trees. The plaintiff was severely injured through being struck by a flying limb from a falling tree. He charges that the defendant was negligent in not giving him warning of the falling of the tree, so that he might have sought a place of safety, and thus have protected himself. Negligence was denied by the defendant, and it alleged contributory negligence on the part of the plaintiff. The answer also alleged that the dangers were open and apparent, and that plaintiff assumed the risk of the danger. It was further averred that the injuries were due to the negligence of a fellow servant. The cause was tried before a jury, and a verdict was returned in the plaintiff's favor for the sum of $1,500. Judgment was entered upon the verdict, a new trial having been denied, and the defendant has appealed.

It is first assigned that the court erred in denying appellant's motion for nonsuit; but, as we have repeatedly held, any error in the denial of this motion was waived by appellant when it proceeded to introduce testimony upon its own behalf, and thereby elected not to stand upon its said motion. Thereafter the sufficiency of all the evidence to sustain a verdict for respondent must be considered, and not that offered by the respond

ent alone.

The next assigned error, however, raises the sufficiency of all the evidence; it being contended that the court should have granted a new trial for lack of evidence sufficient to sustain the verdict. The evidence showed that appellant's representative, who was especially delegated by it to superintend its work at that time and place, directed the respondent and another to proceed to cut down certain of the larger trees with a saw. While they were thus engaged, this foreman went to a place a short distance from them, and began cutting a smaller tree with an ax. While respondent and his companion were still sawing upon their tree, the foreman's tree fell, and, in its descent, it struck another tree, thereby causing a limb to be thrown, which injured the respondent. The evidence is all in practical accord as to the foregoing, and

it is therefore evident that. if the foreman was negligent in such a manner as to proximately cause the injury, his neglect became that of his principal, the appellant. It was also practically conceded by all the witnesses that it is a general custom among woodsmen to shout "Falling tree!" or other equivalent words, when a tree is to fall, as a warning to others in the vicinity to look out for their safety, and that woodsmen in general expect to be protected by such warning. The respondent testified that no warning whatever was given, and that he had no notice of the falling of the tree until it struck the other tree, when it was too late for him to reach a place of safety. Two witnesses, one the superintendent of appellant and the other an employé, testified that respondent stated in their presence just after the surgeon had dressed his wounds that the foreman did shout a warning. The respondent flatly denied that he made any such statement. There was thus a sharp conflict in the testimony upon this material point, and neither the trial court nor this court should undertake to say under the evidence in the record what testimony the jury should have credited. The weight to be attached to the testimony of the several witnesses was for the jury to determine. Under the instructions of the court, the jury by the verdict must have found that respondent's testimony was true, and that no warning was given. Such being an established fact in the case, it follows that appellant's negligence is also established, and that the verdict is thereby sustained.

A number of errors are assigned upon the court's refusal to give instructions in the form requested by appellant. We believe the instructions which the court gave covered fully and fairly every proper legal phase of the case, and that no prejudicial error was committed in the refusal to instruct in the language requested. It is urged that the court erred in giving the following instruction: "I instruct you, gentlemen of the jury, that you are not to draw any inferences from the absence of witnesses in this case, unless you should further find that the whereabouts of such witnesses were known to the parties in the case, and that their presence could have been obtained or their evidence could have been obtained." The appellant requested an instruction that no inferences could be drawn against appellant itself by reason of the absence of witnesses, but the instruction was mcdified by the court so as to apply to either party, and, in addition thereto, such words were used as may have left the jury to imply that, if they found as a fact that the whereabouts of witnesses were known to the parties and that their presence or evidence could have been obtained, then they might draw inferences from the absence of such witnesses. The statement of the court was made to apply as fully to one party as to the other. Nothing in the evidence showed that the absent witnesses were under the

control of one party more than the other, or that their whereabouts were any better known to one than to the other. For aught that appeared, it was as much within the power of respondent as of appellant to produce the witnesses or their testimony. We think, under any view of the law in this matter, that the instruction did not become prejudicial in its effect, as there was no evidence upon which the jury could predicate a finding that one party was more neglectful in this regard than the other, and the jury could not, therefore, draw inferences more strongly against one than the other.

thorities are cited by either party upon this point; but we are satisfied that, if there was any technical error in the instruction when considered as a whole, it was harmless for the reasons above stated. The judgment is affirmed.

MOUNT and FULLERTON, JJ., concur.

ROOT and DUNBAR, JJ. We think the instruction complained of erroneous, but not prejudicial under the evidence and facts of this case. We concur in the result.

RUDKIN, J. I dissent. I dissent. As stated in the majority opinion. "nothing in the evidence showed that the absent witnesses were under the control of one party more than the other, or that their whereabouts were any better known to one than to the other," and in such case there is no inference or presumption one way or the other. In Scovill v. Baldwin, 27 Conn. 316, the court said: "The circumstance that a particular person, who is equally within the control of both parties, is not called as a witness, is too often made the subject of comment before the jury. Such a fact lays no ground for any presumption against either party. If the witness could aid either party, such party would probably produce him. As he was not produced, the jury have no right to presume anything in respect to his knowledge of any facts in the case, because they are to try the case upon the facts shown in evidence, and upon them alone, without attempting to guess at what might be shown if particular persons were produced by the parties." To the same effect, see Haynes v. McRae, 101 Ala. 318. 13 South. 270; Crawford v. State, 112 Ala. 1, 21 South. 214; Nelms v. Steiner, 113 Ala. 562, 22 South. 435 Farmers' Bank v. Worthington, 145 Mo. 91, 46 S. W. 745; Diel v. Mo. Pac. R. Co., 37 Mo. App. 455; Wood v. Agostines, 72 Vt. 51. 47 Atl. 108; Daggett v. Champlain Mfg. Co., 72 Vt. 332, 47 Atl. 1081; 22 Amer. & Eng. Ency. of Law (2d Ed.) 1262. It surely cannot be said as a matter of law that a litigant must produce every witness who may know anything about his cause, or incur the risk of having the court charge the jury that they may indulge in presumption against him for his failure in that regard. If the instruc tion complained of is erroneous, it calls for a reversal, unless this court can say beyond

peradventure that no prejudice resulted therefrom; and the mere fact that the instruction was made applicable to both parties is not decisive on that question. The court below evidently concluded that one or other of the parties failed to produce witnesses, else the instruction would not have been given; and, if the court so concluded, why not the jury? Can it be said to a moral certainty that the jury did not conclude that the obligation to produce these witnesses rested upon the appellant, in whose employ they were at the time of the accident complained of? I am far from satisfied that such was not the case, and I therefore dissent.

CROW, J., concurs in the foregoing dissent.

(47 Wash. 266)

STEELE et al. v. LAWYER et al. (Supreme Court of Washington. Oct. 8, 1907.) 1. BROKERS INTEREST OF BROKER IN PURCHASE-EFFECT.

COMMISSIONS

One procuring a corporation in which he is a stockholder to purchase real estate of another is not entitled to commission from the latter because of his interest in the purchase.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, § 49.]

2. SAME-EMPLOYMENT.

A company sought employment as agent for a commission to procure a purchaser. It was not recognized as such, and was informed that a part of the premises had been sold, and that an option contract had been given for the balance. Subsequently it wrote the owner that it had a party in view whom it might interest in the property, "provided we could get an option." The owner refused to give an option, fixed the price per acre and the terms, and added: "If you can do anything for me on these terms, I shall be glad to hear from you." The company wrote: "Our people will pay $25,000 net." The owner agreed to sell, and the company in transmitting the opinion of its attorney on the abstract referred to unpaid taxes, the cost of the abstract, and a claim on account of the deficiency in acreage, without making any reference to a commission. Held, that the company was not the owner's agent to procure a purchaser, though it accepted a commission to which it was not entitled.

3. PRINCIPAL AND AGENT-NATURE OF RELA

TION.

Agency is a relation founded on contract, express or implied, or created by law, by virtue of which one is authorized to represent and act for another in business dealings with third per

sons.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 1.]

4. CANCELLATION OF INSTRUMENTS-GROUNDS -SUFFICIENCY.

An owner conveyed to a purchaser, a corporation, procured by a third person. The owner, though not knowing that the third person was interested in the purchase as a stockholder, had his suspicions aroused, but he made no inquiry. The owner and the third person dealt with each other at arms' length, and the latter represented the purchaser, if anybody. Held, that the owner was not entitled to a cancellation of the conveyance on the ground that the third person was his agent in procuring a purchaser, and was interested in the purchase.

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

Action by Isabelle R. Steele and another against Jay Lawyer and another, partners as the Western Trust & Investment Company, and others. From a judgment for certain defendants, plaintiffs appeal. Affirmed.

Danson & Williams and Fred H. Moore, for appellants. Graves, Kizer & Graves, for respondents.

RUDKIN, J. Some years ago the plaintiffs, who are residents of the state of Maryland, acquired by mortgage foreclosure a large tract of wild unplatted land in the northern part of the city of Spokane. The land thus acquired was rough and gravelly, covered with a growth of scrub pine, and fit only for townsite purposes. In the month of February, 1905, this land was sold to the defendant Lawyer Land Company. At the time of the sale the streets in the vicinity of the land were ungraded, and the land itself was without water, light, or street car serv ice. Immediately after the sale the land was platted into lots and blocks, the streets graded, a water supply secured, and light and street car facilities obtained at a considerable cost to the purchaser. The lots were extensively advertised, and at the time of the commencement of this action, some 18 months after the sale, the greater part of the property had been sold, and the purchaser was in a fair way to make a good profit on its investment. The present action was brought to rescind the sale above referred to, to recover the property unsold, and for an accounting of all sums received on account of sales made. This relief was sought upon the sole ground that the defendants Lawyer and Dalke, partners as the Western Trust & Investment Company, were the agents of the plaintiffs in negotiating the sale to the defendant Lawyer Land Company, and were also interested in the purchase as stockholders in the purchasing company, which latter fact was unknown to the plaintiffs at the time of the sale, or until a few days prior to the commencement of the action. The court below denied the relief prayed for, and the plaintiffs have appealed.

If the relation of principal and agent did not exist between the appellants and the respondents Western Trust & Investment Company at or prior to the time of the sale which the appellants are now attempting to rescind, the judgment must of necessity be affirmed; and we will first address ourselves to a consideration of that question. If such relationship existed, it was created by or resulted from the written correspondence between the parties, as they never met or had other or further dealings. The negotiations leading up to the sale were conducted by the appellant Margaret A. Steele on the part of the appellants, and largely by the respondent Lawyer on the part of the Western Trust & Investment Company; but, for convenience, we will hereafter refer to the parties to the

correspondence as the appellants and the Western Trust & Investment Company.

The first communication between the parties was the following letter from the Western Trust & Investment Company under date of September 30, 1903: "We note that you are paying taxes on N. E. 14 of S. E. 14 of Sec. 6 T 25 R 43. * We have a party that desires to purchase 5 or 10 acres in that vicinity, and hence we write you to ascertain your best cash price.

*

*

P. S.

Make price including a 5 per cent. com." The answer of appellants, under date of October 6th, was as follows: "In reply to your letter of inquiry of the 30th ultimo, I will say that it is not our desire to sell off the best part of our land *** in such small parcels, but we are offering the whole of the east forty in one lot. Messrs. H. Bolster & Co. of your city have the matter in charge at present, and will be glad to answer inquiries." Under date of May 12, 1904, the appellants wrote: "Last October I received a letter of inquiry from your firm in regard to some land my sister and I own north of Spokane. At that time a client of yours wished to buy 5 or 10 acres. *** I write to say that the land is now for sale, but not in quite such small portions as you asked for last year. * * If at present you have a client wanting such land, I shall be glad to hear from you." This letter was answered under date of September 26th as follows: "On May 12th, you wrote us regarding the N. % of the S. 1⁄2 of Sec. 6. *** We have been doing some work on this proposition, and now have a party interested in the proposition. and think we can make a sale. Before going more fully into the matter with our client, we would like to have a letter from you giving us the exclusive sale for, say sixty days, and stating that a commission of 5 per cent. will be allowed us for making the sale. If you will give this matter your prompt attention. we have every reason to believe that we can make the deal for you in a very short time." On October 1st the appellant replied as follows: "Your letter of the 26th ultimo is at hand, and, in reply, say that I have already sold the east 40 acres of the tract to which you refer, * and have given an option on the remainder. If the present option should fail of results, and if another party who seems anxious to buy in case the remainder of the land is again on the market should fail to purchase. I will let you know." On November 23d the Western Trust & Investment Company again wrote: "You wrote us on Oct. 1st that you would soon know whether or not you would be in a position to place vacant property north of the city in Sec. 6-25-43. We have a party whom we think we could interest providing we could get an option." The above was answered by the appellants under date of November 30th, as follows: "In reply to your letter of the 23d inst.. I will say that 110 acres of our land in section 6 remain on the mar

ket.

**

I

The price is $245 per acre. am not in a position to give an option to any one now, and do not expect to give one at all unless it be for a very short time to close a deal that has been previously arranged. If you can do anything for me on these terms, I shall be glad to hear from you. The price I now quoted ($245 per acre) is for all cash or half cash, and the rest first mortgage on the land." On December 5th the Western Trust & Investment Company again wrote: "In reply to yours of the third [should be thirtieth] ult.. will say that we have parties who will buy your 110 acres in Sec. 6. provided you will make some small concessions from terms as stated in your letter. You offered us the entire 150 acres in May last at $200 per acre since then you have sold the best 40 acres, and now ask $245 for the remainder. This is more of an advance than conditions will warrant, but to cut it short our people will pay you $25,000 net for the property, but will require a little time to get the money together. *** We can assure you that this is a very liberal offer for the property, and feel sure that you cannot do better. *" To which the appellants replied under date of December 12th: The figures I have given you are the best we can do on the land. In regard to the sixty days for payment. we could not give so much unless a considerable sum was paid down as an evidence of good faith. Otherwise your proposition would amount to option of sixty days, which we are not prepared to give. I shall be glad to hear further from you if your clients can agree to our terms." On December 28th the Western Trust & Investment Company wired: "Will you give us to Jany twentieth to close land deal at your price. Wire answer." On December 30th the appellants answered by wire: "I will give until Jany twentieth to close deal." The following day the appellants wrote: "If you have prospect of completing your deal by the time set, January 20th, the deed should be placed in escrow without delay. If you will send me a blank form for deed immediately on receipt of this and will tell in whose name to draw it, *** presume that you intend to pay the whole in cash." This letter was answered by the Western Trust & Investment Company under date of January 6, 1905. as follows: "In reply to yours of Dec. 31st., will say that we will have the money in the bank to close deal on or before the 20th, but cannot yet advise you how to make the deed for the reason that our clients have not yet decided whether they will hold title to the property as a corporation or have it deeded to some one per** There is no doubt about our people taking the property. ** On January the 13th the appellants wrote: "Yours of the 6th inst. at hand. I have just written Messrs. Crow & Williams, giving them directions about drawing of the mortgage in case you make half payment in

son.

I

that way. Your clients will soon have to make up their minds on the points you mentioned if they want the deed in bank by the 20th instant." On January the 20th the Western Trust & Investment Company applied for an extension of time in the following letter: "We regret very much to have to inform you that we have not been able to close deal on your land. We have put in a lot of hard work on this proposition, and have $13,000 on hand to put into the deal, but other parties interested have been slow in reaching a decision and in getting their money. However, we feel certain that, if we have a little more time, we can close the deal for cash. Our Mr. Lawyer has just had a full discussion of the matter with Messrs. Crow & Williams, and they are writing to you to-day. We trust that you will understand our position, and give us an extension of two or three weeks. *** Upon receipt of this letter, please wire at our expense the best you are willing to do for us, and, unless there is some good reason for your not doing so, we trust you will grant us the full three weeks. We will, in turn, guarantee to do our best to close the sale in that time, and hope to do it before." This was accompanied by a letter from the appellants' attorneys recommending the extension, if it did not interfere with other plans. On January 26th the appellants granted the extension by the following telegram: "Extend option three weeks from January twentieth. Afterward higher price." On February 6th a deed was forwarded to the appellants for execution by their attorneys, with the name of the grantee in blank; the attorneys informing them in the letter of transmittal that the grantee was a corporation to be formed for the purpose of handling the property. A postscript was later added to the letter, saying that the name of the grantee corporation was Lawyer Land Company, and that the name had been inserted in the deed. On February 7th the Western Trust & Investment Company wired: "Have closed deal. Williams sending deed to you to-day." And the next day wrote as follows: "We are pleased to inform you that we have at last concluded arrangements for the purchase of your property, and deed was forwarded to you yesterday by Mr. Williams of Crow & Williams. We hand you herewith the opinion of our attorney on the title, which shows the taxes for 1904 unpaid: also some old city taxes, both of which you can arrange to have paid out of the purchase price. Also in your instructions to the bank please mention that the cost of the abstract. $18.00. is to be allowed. ***" The remainder of the letter relates to a deficiency in the acreage, and is not material. This letter and telegram the appellants answered under date of February 14th, as follows: "Your letter of the 8th inst. inclosing the opinion of your attorneys reached me this morning. Last night I received a Jetter from Mr. Williams inclosing the deed

for our signatures. You doubtless remember that, when I offered you the land at $245 per acre, the year was still 1904, and so the taxes were not due. They will not become delinquent, as you are aware, until the 31st of May next. ** In offering the land to you, I figured 110 acres at $245, or $26,950 as you have stated in the deed, allowing you 5 per cent, commission, and no deductions except the amount of the abstract. If you are willing to give this amount, the deed will be forwarded to the Traders' National Bank. If you do not wish to pay so much, there is no compulsion upon you to take it. I am willing to risk holding it for a higher price. The instructions to the appellants' bankers relating to the delivery of the deed were as follows: "* **The inclosed deed is to be delivered to Mr. Jay Lawyer of the Western Trust & Investment Co., Jamison Blk., Spokane, on the following conditions: He is to pay $26,950 (as mentioned in deed) less 5 per cent. commission and less also $18 for abstract. That is he is to pay a net sum of $25.584.50. Besides, he is to show you tax receipts for 1904 taxes. * Mr. Lawyer

understood that this is the condition, we having refused to reduce our purchase price by these amounts. ***" Other brief communications between the parties have no bearing on the question under consideration.

Did the foregoing correspondence create an agency between the appellants and the Western Trust & Investment Company? It may be that the application to extend the time for consummating the sale was made in bad faith, to permit the lien for 1904 taxes to attach. The Western Trust & Investment Company may have accepted and retained a commission they were not entitled to either as a matter of contract or as a matter of law, and the subsequent attempt to recover back a part of the purchase price on account of a deficiency on the acreage may have been unwarranted; but the question here is one of agency, not of honesty or fair dealing. In the first letters that passed between the parties the Western Trust & Investment Company undoubtedly sought employment as agents for the appellants, and expressly referred to their commission of 5 per cent., but they never were appointed or recognized as agents, and on October 1, 1904, were informed that 40 acres of the land had already been sold, and that an option had been given for the remainder. The negotiations which culminated in the sale to the Lawyer Land Company commenced with the letter of November 23, 1904, wherein the Western Trust & Investment Company wrote that they had a party in view whom they thought they could interest in the property, "providing we could get an option." Whether the option was to run to the Western Trust & Investment Company or to the intending purchaser is a matter open to conjecture. The appellants replied to this, fixing their price at $245 per acre, refusing the option, and add