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were sawed and trimmed. It seems there | proximately 12 feet apart, lugs four inches were in use in this part of the mill two dif- high, a fact the respondent was not aware ferent machines for sawing the blocks, the of. As he stood in the conveyor, one of one a circular cut-off saw some 48 inches these lugs caught his feet, dragged them in diameter, and a drag saw, operated after from under him, and caused him to fall the manner of a crosscut saw. The cut-off backwards towards the revolving cut-off saw. saw was used to cut blocks from the timber In tie fall his arm came into contact with which came into the mill in the form of the saw, causing the injury for which he bolts, while the drag saw was used to cut sues. . them from timber which came into the mill [1] The appellants' first and principal conin the form of logs. Directly back of the tention is that the facts do not justify a cut-off saw was the knee-bolter saw, used to recovery. They argue that the respondent trim the shingle, blocks, and put them into acted without instructions when he got into shape for the shingle saws. Running from the conveyor with his feet to remove the acunderneath the knee-bolter saw towards and çumulated débris, and, further, that the act past the cut-off saw, and on out to a bur- was one so hazardous in its nature that it ner some distance from the mill, was an was not to be supposed that an ordinarily open chain conveyor, used to carry off the prudent person would undertake it. But waste and refuse left from the operation of these were questions for the jury. While sawing and trimming the shingle blocks. the respondent was not directed in words to The conveyor was 18 inches wide at the bot- keep the conveyor clean, the inference that tom, 30 inches wide at the top, and of a he was expected to do so seems to us to depth of 16 inches. Lying between the saws scarcely admit of a doubt about the matter. was a place called the deck, on which the At any rate, the inference is sufficiently blocks cut from logs were split into suitable strong to make the question one for the sizes for handling by the knee-bolter. jury, and we are bound by the verdict. So

When the respondent entered the mill aft- with the contention that the act itself was er the meeting with his employer, the mill so reckless as to forbid a recovery. While crew had just finished cutting blocks with it looks foolhardy in the light of what hapthe cut-off saw, and a log had been drawn pened, it cannot be said that no ordinarily into the chute where the drag saw was oper- prudent person would have undertaken it, ated. The respondent was told to assist in having only such knowledge of the danger of getting the log into a position where the the act as the respondent possessed. He did saw could be used upon it. This he did, not know there were lugs on the conveyor when he was told to take the blocks as they chain to drag him down, and his instructor were cut from the log, split them into con- had performed the same act with safety but venient sizes for the knee-bolter to handle, a few hours before. and place the split pieces within the knee- Certain special interrogatories were subbolter's reach. After working at this for mitted to and answered by the jury, among a while, he discovered that refuse from the which were the following: "Was the act of logs had accumulated on the deck in such a the plaintiff in stepping into the conveyor quantity that it materially interfered with near to the cut-off saw and attempting to his work. To get it out of the way, he loosen refuse with his feet a very dangerous started to scuff it off into the conveyor with act? Answer: Yes; from the fact that the his feet, when Wilder, the knee-bolter, point- cut-off saw was not properly guarded. Ined to a scoop shovel standing in a corner of terrogatory No. 12: Was the method emthe mill, and by motions indicated that he ployed in getting into the conveyor and atcould use it for the purpose of cleaning the tempting to loosen refuse with his feet a deck. The respondent thereupon got the safe method? Answer: Yes; provided cutshovel and shoveled the waste into the con- off saw had been properly guarded.” veyor.

This caused the conveyor to clog, [2] It is argued that the answers to these whereupon Wilder left the knee-bolter pit, interrogatories are contrary to the general came over and removed the clog by getting verdict, because the jury found the act of the into the conveyor and stamping and scuffing respondent in stepping into the conveyor “a the waste with his feet. As the work pro- very dangerous act”; in other words, it gressed, the respondent found it necessary is contended that the jury by these findings from time to time to again clear the deck by found the respondent guilty of contributory shoveling the waste into the conveyor. As negligence, which is contrary to the general he did so, he discovered that the conveyor verdict, which found the appellants. liable had again clogged at a place a short distance to answer for the injury. But we think from the cut-off saw. This saw bad been the appellants place a wrong construction left in motion during the time the respond- on the special verdict. The fact that the ent had been in the mill, although apparently act performed by the respondent may have without necessity. To remove the clog he been dangerous does not of itself convict went over and got into the conveyor with him of contributory negligence. Before he his feet, as he had seen his instructor do can be so convicted, he must have known on the previous occasion. The conveyor of the danger, or the danger must have been dinary prudence would not have attempted the tender came too late, he was estopped from the act. The special findings made by the claiming that the amount was insufficient. jury do not cover these questions.

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

Purchaser, Cent. Dig. & 348; Dec. Dig. $ 170.*] The court gave to the jury the following

2. VENDOR AND PURCHASER (8 93*)-PAYMENT instruction: "You are instructed that the

-DEFAULT-AMOUNT DUE. law of this state in force at the time of the Where a vendee in default in his payments, injury to the plaintiff alleged in this case, before the vendor had declared a forfeiture and and known as the 'Factory Act,' provides tender of the full amount due on the contract,

before the final payment was due, made a that any person, firm, or corporation, operat. providing for payments "on or before,”. the ing a mill where machinery is used, shall whole amount became due ipso facto. provide and maintain in use reasonable safe- [Ed. Note.-For other cases, see Vendor and guards for all saws which it is practicable to Purchaser, Cent. Dig. & 154; Dec. Dig. $ 93.*] guard, and which can be effectively guarded On Rehearing. Denied. with due regard to the ordinary use of such For former opinion, see 113 Pac. 765. machinery and the danger to employés there.

PER CURIAM. A petition for rehearing from, and with which employés of any such has been filed herein, in which it is contendmill are liable to come in contact while in ed that the court has wrongfully applied the the performance of their duties. You are in- former decisions of this court, in that in this structed that, if you find that the cut-off

case all of the payments were not due on saw complained of in this case, and upon the contract at the time the first notice of which it is alleged the plaintiff was injured, forfeiture was given, and hence there was was unguarded and unprotected, and that no duty incumbent on Meisenheimer to tenit was practicable to guard the same effect- der a deed. ively, having due regard for the use of the

We cannot agree with this contention. same, then under the law it would be your Before taking up that feature of the case, duty to find the defendants negligent in that we held that because of the personal coveregard; but if you find from the evidence nants of Meisenheimer the notice of forthat the cut-off saw on which plaintiff was feiture given by Maud Motley Meisenheimer injured was as well and as pr ticably was ineffectual to work a forfeiture of the guarded as was consistent with its ordinary contract. Our decision might have been use, and that any further or additional made to rest upon this ground alone; but, guards would have impaired its use, or ren- because we found the whole of the purchase dered its use more dangerous, the defend- price to be due, we went further, and put ants would not be guilty of negligence under our decision upon the additional ground that, the law."

where the covenants of an executory con[3] It is contended that the court erred in tract were mutual and dependent, a forgiving this instruction, since it assumed feiture could not be declared without a tentherein, as a matter of law, that failure onder of the deed. It is said: “It is unquesthe part of the appellants to guard the saw tionably the law that, if all the payments on which the respondent was injured, if it are due, the vendor must tender performance was practicable to guard the same, was before he can put the vendee in default. If negligence, contending that the question all the payments had been due, we certainly whether or not it was negligence to fail to would have tendered a deed with the decguard the saw was for the jury, and not laration of forfeiture. The two last paythe court. But we think the court correct- ments being not yet due, that rule does not ly defined the purpose of the factory act. apply here. Until November 1, 1909, total We think it was intended by the act to payment could not be required, nor was conmake it negligence, as a matter of law, for veyance required. The making of intermedioperators of machinery, around which their ate payments was not concurrent with makemployés are compelled to work, to fail | ing the deed.” to guard such machinery hen it is practi- [1] The record in this case shows that one cable so to do. This being the purpose of Lambert, acting for Gottschalk, and after the act, it was not error for the court to the ineffectual declaration of forfeiture had so charge the jury.

been made, tendered the sum of $4,344.83, We find no error in the record, and the and demanded a deed. He further testifies judgment will stand affirmed.

that no objection was made to the amount of the tender; that it was refused solely be

cause it came too late. This, under a well(62 Wash. 299)

settled rule of law, would estop Meisenheimer GOTTSCHALK V. MEISENHEIMER. from claiming that the amount was insuffi(Supreme Court of Washington. April 24, cient. At the time the contract was executed 1911.)

there was a balance due of $2,985. Tender 1. VENDOR AND PURCHASER ($ 170*)—TENDER was made 5 years, 8 months, and 10 days

OF PAYMENT — REFUSAL — EQUITABLE Es-after the execution of the contract. The inTOPPEL.

Where a vendor of land refused to accept terest for that time at 8 per cent. amounts payment tendered him solely on the ground that to $1,359.83, or a total of $4,341.83. *For other cases see same topic apd section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes [2] Our remark in the former opinion, , any other reason, when he has not funds, the “His declaration of forfeiture is based upon payment cannot be recovered. the default of the last payment, as well as Banking, Cent. Dig. 88 455-46442; Dec. Dig. 8

[Ed. Note.--For other cases, see Banks and the first, the whole sum was due, and a

150.*] deed forthcoming,” may be misleading; but, 2. BANKS AND BANKING ($ 150*)—DEALINGS when considered in connection with our hold

-CHECKS-PAYMENT. ing that Maud Motley Meisenheimer could Where a bank, after hours, paid certain not forfeit the contract, or relieve Meisen- checks under the mistaken belief that the heimer of his covenants, it seems clear to drawers had funds in the bank, when in fact us Gottschalk had the right to tender all cannot recover from the drawee.

their funds had been withdrawn that day, it payments “on or before" the due date, and, [Ed. Note.-For other cases, see Banks and when he did make tender, the full amount Banking, Cent. Dig. 88 455-46442 ; Dec. Dig. became due ipso facto. He put the burden 8 150.*] on Meisenheimer, who could not escape lia- Department 1. Appeal from Superior bility by reference to the act of Maud Mot-Court, Spokane County; Wm. A. Huneke, ley Meisenheimer, who admittedly was in no Judge. position to carry out the contract. Meisen

Action by the Spokane & Eastern Trust heimer relies upon the first declaration; but Company against Andrew M. I. Huff. From it is evident that, when making up his case, a judgment sustaining a demurrer and dishe did not rely upon the first notice of for- missing the complaint, plaintiff appeals. Affeiture. It was in the alternative. It declar-firmed. ed that, if payment was not made as demanded, "said contract will be forfeited and

Warren W. Tolman, for appellant. Dandeclared at an end." All notes were retain- son & Williams, for respondent. ed, and no attempt was made to assert a forfeiture by positive declaration, or return of

FULLERTON, J. The appellant is a the notes given to evidence the deferred pay

banking corporation, and receives money on ments, until October 12, 1908, two days after deposit subject to check by its depositors. On Gottschalk had tendered the full amount due the morning of October 6, 1909, one Edwin J. and was entitled to his deed.

Schloss had on deposit in the appellant's Whether an alternative declaration of for- bank subject to check the sum of $297, and feiture under a contract where notes collat- one Leon J. Schloss had on deposit therein eral thereto had been executed would for subject to check the sum of $48. During feit the rights of the vendee until the notes the banking hours of that day the Schlosses had been tendered back was not decided by severally withdrew their respective deposits. us, nor do we now pass upon that question. On the same day, and about one hour after There are cases holding that it cannot be the bank had closed its doors to the general done. Comstock v. Brosseau, 65 m. 39. It public, the respondent, Andrew M. I. Huff, is enough when it appears that no notice appeared at the bank with the check of Edsufficient to satisfy the law had been given win J. Schloss for the sum of $297, and the at the time the tender was made. By the

check of Leon J. Schloss for the sum of. $18, terms of the contract, a tender being made both dated upon that day, and presented the before any legal forfeiture occurred, the checks to the bank's assistant secretary for whole purchase price became due, and Gotts- payment. The assistant secretary thereupchalk was entitled to his deed.

on caused inquiry to be made of the bookOur decision is that there was no for- keeper and the paying teller of the bank to feiture, that a tender was made in time, ascertain whether the drawers of the checks that a deed was forthcoming, that Gotts- bad sufficient funds on hand to meet the chalk was not bound to pay one who could checks, and, on being informed that they not perform, that he might have had specific had, paid the checks to the respondent. performance, and, waiving that remedy, he When the books of the bank were balanced could recover his damages.

for the day, the overpa yment was discoverRehearing denied.

ed, and on the next day the checks were tendered the respondent and repayment of the sums demanded. Repayment was refus

ed, whereupon the present action was brought (63 Wash. 225)

to recover the amount so paid. In the comSPOKANE & EASTERN TRUST CO. V. plaint, in addition to the foregoing facts, it HUFF.

was alleged that at the time of the payment

the bank had ceased for that day the trans(Supreme Court of Washington. April 21, 1911.)

action of business with the public, a fact

that the respondent well knew; that it paid 1. BANKS AND BANKING ($ 150*)—DEALINGS the money after business hours as an ac-CHECKS-PAYMENT. If a bank in the ordinary course of busi

commodation to the holder of the checks; ness pay a check drawn upon it under the mis- that the reason it did not discover that the taken belief that the drawer has funds, or for depositors drawing the checks had withdrawn their funds was owing to the confusion should afterwards hold the moneys subject incidental to the closing of the business of the to such a showing as the drawee might be bank for the day; and that the respondent able to make as to the influences operating "did not by reason of said payment so change upon his mind to induce him to make payhis position that he would be prejudice i by ment. The beauty and value of the rules repayment of the money so paid to him.” governing commercial paper consist in their To the complaint a demurrer was interpos- perfect certainty and reliability; they would ed, which the court sustained. Later on a be worse than useless if the ultimate rejudgment of dismissal was entered, and the sponsibility for such paper, as between payee appeal followed.

and drawee, both acting in good faith, could [1] It is a general rule, sustained by al. be made to depend on the motives which inmost universal authority, that a payment, fluenced the latter to honor the paper." in the ordinary course of business, of a

So in Oddie v. Nat. City Bank of New York, check by a bank upon which it is drawn un- 45 N. Y. 733, 6 Am. Rep. 160, Church, C. der the mistaken belief that the drawer J., discussing the question, said: “When a has funds in the bank subject to check, is check is presented to a bank for deposit, not such a payment under mistake of fact drawn directly upon itself, it is the same as as will permit the bank to recover the mon- though payment in any other form was deey so paid.

manded. It is the right of the bank to reIn Hull v. Bank, Dudley (S. C.) 259, the ject it, or to refuse to pay it, or to receive court passing upon the question used this it conditionally, as in Pratt v. Foote, 9 N. language: “This question is to be decided Y. 463; but if it accepts such a check and rather by authority than general reasoning pays it, either by delivering the currency, on the subject. No part of a commercial or giving the party credit for it, the community is more interested in commercial transaction is closed between the bank and usages than banks, and they cannot com

such party, provided the paper is genuine. plain when they are required to strictly con- In the case of a deposit, the bank becomes form to them. They cannot always guard at once the debtor of the depositor, and the against fraud and imposition, but they may title of the deposit passes to the bank. The against mistakes, depending on an inspec- bank always has the means of knowing the tion of their own books and accounts. Mis- state of the account of the drawer, and, if takes may be prevented which cannot be rem-it elects to pay the paper, it voluntarily edied. They accepted and paid the check pre- takes upon itself the risk of securing it out sented by the defendant, for and on account of the drawer's account or otherwise." of Hopton, the drawer, whose money they had In Manufacturers' National Bank v. Swift, kept for his convenience and accommodation. 70 Md. 515, 17 Atl. 336, 14 Am. St. Rep. The privity of contract was between them and 381, it was said: “It is the duty of a bank their customer Hopton, and not between to know the state of its depositor's account, them and one who may have happened in and if it makes a mistake in this respect it the course of dealing to present check must abide the consequences. The presentadrawn by Hopton.

A bank check tion of a check is a demand for payment; has all the characteristics of bills of ex- if it is paid, all the rights of the payee have change, and cannot be distinguished from been satisfied, and he is not entitled to ask them. Indeed, they perform not only all any questions. It would forever destroy the the offices of bills, but are more generally character of a bank in all commercial cirused for the transfer and payment of moneys. cles, if, when it was ready and willing to They are mercantile agents which should pay a check, it permitted the holder to innot be crippled in their daily and hourly quire if the drawer had funds there to meet operations. Before one reaches the bank it. It is a matter with which he has no conafter it has been drawn, it may have paid cern. In the absence of fraud on the part and discharged many debts, nd, after of the holder, the payment of a check by a has been accepted and paid, all the inter- bank is regarded as a finality. And the vening holders in general are discharged fact that the drawer had no funds on defrom all liabilities to the bank. It becomes posit will not give the bank any remedy then a transaction between the bank and against the holder." the drawer; the bank not unfrequently pay- In National Bank of N. J. v. Berrall, 70 ing money on checks of the drawer, when N. J. Law, 757, 58 Atl. 189, 66 L. R. A. in fact he has no deposit.”

599, 103 Am. St. Rep. 821, it was said: In First National Bank v. Burkham, 32 | “As between the holder of a check and the Mich. 328, Judge Cooley, writing for the bank upon which it is drawn, the latter is court, used these words: “But we think it bound to know the state of the depositor's would be an exceedingly unsafe doctrine in account. Before paying the check it must commercial law that one who has discount. take into consideration whether it ed a bill in good faith, and received in its drawn against funds, and whether the order payment the strongest possible assurance for payment, evidenced by the check, has that it was drawn with proper authority, subsequently been revoked. Therefore, where

115 P.-6


a bank receives in the ordinary course of prove the officers themselves more culpable, business a check, drawn upon it and present- but it cannot change the effect of the mised by a bona fide holder, who is without take. notice of any infirmity therein, and the bank The judgment is affirmed. pays the amount of the check to such holder, it finally exercises its option to pay or not DUNBAR, C. J., and PARKER and to pay, and the transaction is closed as be- MOUNT, JJ., concur. tween the parties to the payment.”

See, also, Citizens' Bank v. Schwartzschild, 109 Va. 539, 64 S. E. 954, 23 L. R. A.

(63 Wash. 172) (N. S.) 1092; Boylston National Bank v.

STATE v. SMAILS. Richardson, 101 Mass. 287; Riverside Bank (Supreme Court of Washington. April 17, v. First National Bank, 74 Fed. 276, 20 C.

1911.) C. A. 181; National Bank v. Burkhardt, 100 1. PERJURY ($ 26*)-INFORMATION-SUFFICIENU. S. 686, 25 L. Ed. 766; City Nat. Bank v.

CY-FALSITY OF TESTIMONY. Burns, 68 Ala. 267, 44 Am. Rep. 138; Nation-atives the truth of the testimony given, where

An information for perjury sufficiently negal Gold Bank v. McDonald, 51 Cal. 61, 21 it sets out the testimony and charges its falsiAm. Rep. 697; Consolidated Nat. Bank v. ty not only by negation but by setting out the First National Bank, 129 App. Div. 538, 114 true facts by way of antithesis. N. Y. Supp. 308; Morse on Banking (4th Ed.) Cent. Dig. Så 90-94; Cent. Dig. & 26.*]

[Ed. Note.-For other cases, see Perjury, $ 455.

2. PERJURY (26*)-INFORMATION-SUFFICIENBut, while the courts are uniform in hold,

CY-KNOWLEDGE OF FALSITY OF TESTIMONY. ing that a bank cannot recover under the An information for perjury sufficiently alcircumstances cited, they are not agreed up- leges accused's knowledge of the falsity of his on the principle upon which the rule pro- ly and falsely testified to certain facts, and

testimony, where it charges that he knowing; hibiting a recovery rests. Some of them, it that he knew of each particular fact alleged will be observed, put it on the ground of to negative the truth of his testimony. want of privity between the holder of the

[Ed. Note.-For other cases, see Perjury,

Cent. Dig. $ 92; Dec. Dig. § 26.*] check and the bank; others upon the ground that the payment is not a payment by mis- 3. CRIMINAL LAW (8 478*)—EXPERT OPINION

-WRITINGS. take within the meaning of the rule that Persons shown to be bankers and accountpermits a recovery; others again on the ants with extended experience in dealing with ground that to permit the bank to repudiate notes and mortgages and in detecting irregularthe payment would destroy the certainty er figures raising the amount of a note and

ities were qualified to give their opinion wheththat must pertain to commercial transac- mortgage were written at a different time and tions of this sort if they are to remain use under different circumstances than the other ful to the business public. To our minds figures and words. the latter reason is the most satisfactory. Law, Cent. Dig. ss 1065, 1066; Dec. Dig. $

[Ed. Note.-For other cases, see Criminal If, for example, a merchant conducting a re- 478.*] tail business must hold the money he re- 4. CRIMINAL LAW (8 478*)— EXPERTS-QUALIceives from the bank in payment of checks FICATIONS. and drafts, taken in by him from his cus- One can give an expert opinion on a subtomers in payment for the purchase of goods, ject concerning which he is shown to have pe

culiar skill and knowledge, gained by observauntil such reasonable time as the bank hastion, personal experience, or study, not posto determine whether or not it will call upon sessed by men ordinarily. him for a return of the money, it is mani- [Ed. Note. For other cases, see Criminal fest that he must discard the use of checks Law, Cent. Dig. $8 1065, 1066; Dec. Dig. $

478.*] and drafts in the conduct of his business and require his customers to bring him 5. CRIMINAL LAW ($ 472*)—EXPERT TESTIMO

NY-SUBJECTS. cash. The uncertainty, delay, and annoy- Whether certain figures and words affectance such rule would cause him would for- ing the amount of a note and mortgage were bid their use in his business.

written at different times is a proper subject for

expert testimony. [2] Concluding, as we do, that the bank

[Ed. Note.-For other cases, see Criminal cannot recover if the checks in question Law, Cent. Dig. 8 1059; Dec. Dig. § 472.*] were recovered and paid by it in the ordi- 6. CRIMINAL LAW (8 469*)-EXPERT OPINIONS nary course of business, it remains to inquire -ADMISSIBILITY-JUDICIAL DISCRETION. whether the special circumstances set out

Admission of expert testimony on a given in the complaint relieve it from the rule. It. where it is doubtful whether the subject of tes

subject is discretionary with the trial judge, is our opinion that they do not. The mat- timony concerns the matter of peculiar knowlters which are thought to relieve the bank edge. of blame were of its own choosing. The [Ed. Note. For other cases, see Criminal Law, holder of the checks in no way contributed Cent. Dig. $ 1059; Dec. Dig. 469.*] to the mistake, and the fact that the bank 7. PERJURY ($ 34*)- EVIDENCE-SUFFICIENCY. officers were more liable to make a mistake though there was no direct testimony of two

A conviction of perjury is sustainable at this particular time than some other may I witnesses to the perjury, where there was di

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