the general verdict, it will be so construed. | ence, is inexplicable except as the result of Mercier v. Travelers' Ins. Co., 24 Wash. 147, negligence, then negligence will be presum64 Pac. 158; McCorkle v. Mallory, 30 Wash. ed. The accidents in Firebaugh v. Seattle 632, 71 Pac. 186. Electric Company, 40 Wash. 658, 82 Pac. 995, Finding no error, the judgment is affirmed. 2 L. R. A. (N. S.) 836, 111 Am. St. Rep. 990, RUDKIN, C. J., and GOSE, J., concur. CHADWICK and FULLERTON, JJ. (concurring in result). We believe the special verdict was warranted by the evidence, and, if this case rested upon that consideration, would vote for a reversal; but, aside from all prior negotiations, the evidence shows that the money now sought to be recovered was paid out by respondents at the special instance and request of appellant subsequently made, and to cover which he drew and delivered the check sued upon. It was a part payment on the vessel, and the question of prior option became immaterial. The advancement was a sufficient consideration, and warrants a recovery. We concur in the result. (53 Wash. 588) DE YOE v. SEATTLE ELECTRIC CO. (Supreme Court of Washington. Oct. 30, 1909.) NEGLIGENCE (§ 121*)—“RES IPSA LOQUITUR." The phrase "res ipsa loquitur," as applied to negligence cases, expresses the idea that, when an accident is shown to be of such a char acter, as in the light of ordinary experience, is inexplicable except as the result of negligence, then negligence is presumed. [Ed. Note. For other cases, see Negligence, En Banc. On Rehearing. Affirmed. Williams v. Spokane Falls & Northern Ry. Co., 39 Wash. 77, 80 Pac. 1100, and Anderson v. McCarthy Dry Goods Company, 49 Wash. 398, 95 Pac. 325, 16 L. R. A. (N. S.) 931, 126 Am. St. Rep. 870, were of such a character as, in the light of ordinary experience, were explainable from the standpoint of the plaintiff by the presumption of negligence only. Each and all of them were unusual, not to be ordinarily anticipated, and inconsistent with the idea of careful operation. No such showing is made in this case, the undisputed evidence being that jerks of a cable car are of ordinary occurrence, consistent with careful operation, and that they frequently happen without any act of negligence upon the part of the carrier. ces. In Railroad Company v. Humphrey, 83 Miss. 721, 741, 36 South. 154, 159, the court, discussing the doctrine of res ipsa loquitur, said: "There is a large and well-defined class of cases in which for injuries to passengers the negligence of the carrier is implied from the mere happening of the accident. In such cases proof of injury to the passenger, joined to proof of the accident, makes out against the carrier a prima facie case of failure to observe that high degree of rebutted, entitles the plaintiff to recover. care required of it under the law, and, if not This rule applies when a passenger train strikes an animal on the track and a passenger is thereby injured, or when the injury results from a collision between two trains on the same track, and other similar instan* But this rule does not apply CROW, J. Upon appellant's petition for to all cases of injuries to passengers, but ona rehearing this cause has been again pre-ly to such as are caused by happenings not sented to this court, sitting en banc; but, ordinarily incident to the prosecution of the after further consideration, we have con- carrier's business in the customary manner, cluded to adhere to our former opinion. or by such accidents as do not usually ocAppellant's controlling contention, again cur without negligence on the part of the urged on the rehearing, is that she is entitled carrier." Hoffman v. Third Avenue R. R. to successfully invoke the rule of res ipsa Co., 45 App. Div. 586, 61 N. Y. Supp. 590. loquitur, by reason of the single established In Merrill v. Metropolitan Street R. Co., 73 fact that, without fault of her own, she was App. Div. 401, 77 N. Y. Supp. 122, an injury injured while traveling on respondent's car. was sustained by the plaintiff while a pasIn other words, she insists that the mere senger on the defendant's street car, in conhappening of an accident causing injury to sequence of the fact that another passenger, a passenger, without fault on his part, nec- in the act of entering the car from the platessarily gives rise to such a presumption of form, was thrown against her by a violent negligence of the carrier as to make a prima jerk or jolt of the car. Yet the court held facie case, and entitle the passenger to a re- that, in the absence of any further evidence covery of damages for the injuries sustained. of negligence of the defendant, the plaintiff We regard this as being too broad a state- would not be entitled to recover. If a pasment of the doctrine. The phrase "res ipsa senger on a railway train or street car should loquitur" as applied to negligence cases is be injured as the result of a derailment, a used to give expression to the idea that, head-on collision, or some similar accident, when an accident is shown to be of such a a different state of facts would be presented, character as, in the light of ordinary experi-and the doctrine of res ipsa loquitur would For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes undoubtedly apply, the occurrence being such an unusual one, and of such a character, as to be explained only on the theory of some act of negligence on the part of the carrier or its servants, unknown to the passenger. The undisputed evidence in this case being that jerks upon a cable car are of ordinary occurrence, unavoidable, and consistent with careful operation, and no additional evidence to show negligence being presented, the judgment must be affirmed. It is so ordered. MOUNT, PARKER, MORRIS, and GOSE, JJ., concur. RUDKIN, C. J., dissents. See 104 Pac. 1133. (55 Wash. 352) PALMER et ux. v. ABRAHAMS. (Supreme Court of Washington. Oct. 27, 1909.) 1. MORTGAGES (§ 38*)-MORTGAGE OR DEEDSUFFICIENCY OF EVIDENCE. In an action to quiet title, evidence held to show that the property was conveyed by plaintiffs' remote grantor absolutely, and not in trust to secure a debt to a third party. [Ed. Note.-For other cases, see Mortgages, Dec. Dig. 38.*] 2. HUSBAND AND WIFE (8 262*)—COMMUNITY PROPERTY-PRESUMPTIONS. It is presumed that property conveyed to the husband during marriage became community property. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. § 262.*] 3. GUARDIAN AND WARD (§ 42*)-SALE OF LAND-ORDEr of Court-NECESSITY. A guardian's deed made without any order of court is a nullity. [Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 173-185; Dec. Dig. § 42.*] 4. EVIDENCE (§ 594*)-SUFFICIENCY TO SUPPORT FINDING-VALUE. Where the only evidence as to the value of the improvements on lands was that of two witnesses, one of whom testified that they were worth $700 and the other $1,300, a finding of their value at only $400 was not supported by the evidence. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2431; Dec. Dig. § 594.*] 3. QUIETING TITLE (§ 50*)-ACTIONS-JUDGMENT-FORM-ENFORCEMENT OF LIEN FOR IMPROVEMENTS. In an action to quiet title to realty, wherein title was adjudged in defendant, subject to a lien for improvements, the judgment was erroneous for leaving plaintiff in possession with no remedy for the enforcement of his lien except to retain possession or bring another suit, as it should have established the rights of the parties in accordance with Act March 16, 1903 (Laws 1903, p. 262, c. 137). [Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 100; Dec. Dig. § 50.*] Department 2. Appeal from Superior Court, King County; George E. Morris, Judge. Action by W. H. Palmer and wife against Alice Graham Abrahams, by her guardian ad litem, W. G. Woods. From a judgment for defendant, plaintiffs appeal. Reversed, with directions to enter judgment as directed. F. E. Knowles, for appellants. RUDKIN, C. J. The present controversy arose over the title to lots 4 and 5 of block 1 of Dodge's division of Green Lake addition to the city of Seattle. The respective parties deraign their title as follows: September 12, 1890, Z. U. Dodge and wife conveyed to Minnie J. Wood. August 8, 1895, Phil Abrahams and Minnie J. Abrahams (formerly Minnie J. Wood) conveyed to Robert M. Eames. December 27, 1895, Eames and wife conveyed to Patrick C. Portley. August 29, 1896, Portley and wife reconveyed to Phil Abrahams. May 12, 1897, Phil Abrahams conveyed to the defendant Alice Graham Abrahams. December 17, 1903, Minnie J. Abrahams, signing herself as guardian for Alice G. Abrahams, conveyed to Charles C. Spencer. December 10, 1904, Spencer and wife conveyed to the plaintiff W. H. Palmer. June 29, 1907, Minnie J. Abrahams and Phil Abrahams, by Minnie J. Abrahams his attorney in fact, conveyed to the plaintiff W. H. Palmer. Phil Abrahams and Minnie J. Abrahams intermarried July 31, 1892, were divorced March 8, 1897, and the defendant is their daughter. The court below found that the title was in the defendant, subject to a lien of $100.64 in favor of the plaintiffs, quieted title in the defendant subject to the plaintiffs' lien, and adjudged “that the plaintiffs surrender possession of said real property to the said Alice Graham Abrahams, upon the payment of their said lien, and that said plaintiffs remain in possession until their lien for the permanent improvements placed upon said realty, and for the taxes paid on said realty for the year 1904, to wit, the sum of $400.64, is paid." From this judgment the plaintiffs have appealed. The theory of the appellants, as advanced in their complaint, was: That the property was originally the separate property of Minnie J. Abrahams; that she and her husband conveyed the property to Eames in trust to secure an indebtedness of $200 to Portley; that Eames and wife conveyed to Portley, Portley and wife to Phil Abrahams, and Phil Abrahams to the respondent; and that the property is still impressed with a trust in favor of Minnie J. Abrahams and her grantees. The only testimony offered in support of this claim is that of Minnie J. Abrahams taken by deposition, in which she says: "I know the transaction about that deed to Robert M. Eames. Said deed was made to Robert M. Eames to hold the same in trust for me to keep creditors from selling same, as said Abrahams owed doctor bills and claims in Seattle. I ordered said R. M. Eames to deed said property to Patrick C. Portley in trust for me, which he did, and said Portley held said property in trust for me, and I received no consideration whatever for said deeds." Opposed to this is the testimony of Phil Abrahams taken by depo sition, in which he says: "I remember the deeding of these lots to Robert M. Eames, in 1895. The deed was an absolute deed for the conveyance of title to these two lots and other property of my own described in that deed. Neither Mrs. Abrahams nor I ever borrowed any money from Eames or Portley, and it was not intended or understood by Robert M. Eames, Mrs. Abrahams, and myself to be anything else than an absolute deed for all the real property described in the deed. Mr. Portley had nothing to do with this transaction. I know what the intentions of the parties to the transaction were from the fact that I had discussed with Mrs. Abrahams the advisability of sell ing some of my property in South Park, and other places, and she expressed her desire to sell her two lots at Green Lake, also. I negotiated the sale, and was a party to the transaction, and know that it was negotiated and consummated as an absolute sale of all the property described in that deed, and that there was never a word in regard to any one intending it to be anything but an absolute deed. Patrick C. Portley had no connection with nor interest whatever in this transaction between Eames, Mrs. Abrahams, and myself. It was simply a sale of this property to Eames, and no third person was in terested or involved in this transaction in any way whatever. This deed to Eames was signed by Mrs. Abrahams, as my attorney in fact. I gave Mrs. Abrahams a power of attorney as a matter of convenience for making transfers of property. My principal reasons were reasons of a domestic nature, rather than of a business nature. As she wanted the money, I told her myself to sell after I had negotiated the sale with Eames, and I do not remember of ever receiving a cent of the consideration money. Minnie J. Abrahams received the money for all the property sold to Eames which includes lots 4 and 5, block 1, of Dodge's division of Green Lake addition. I never received nor wanted any money from her property. Neither of us had any interest whatever in the transaction between Eames and Portley. We had sold the property to Eames, and our interests in the property ended there." There is little in the record to corroborate or contradict either witness, and we agree with the court below that the testimony on the part of the appellants is not sufficient to defeat the operation of the deed or impress the land with a trust in favor of the grantors or their successors. The appellants further contend that, even though the original conveyance was absolute, the property was reconveyed to Phil Abrahams during the existence of the marriage relation between him and Minnie J. Abrahams, and therefore becane community property. In this contention the appellants are supported by the legal presumption alone. Phil Abrahams testified that he paid for the property from separate funds owned by him long before his marriage, and Minnie J. Abrahams offered no explanation as to the source of the purchase money, if, indeed, she did not claim that the conveyance was without consideration, in which case it would perhaps be deemed a gift. Allegations made by Phil Abrahams in a complaint for divorce filed some years before tend to impeach his testimony; but, on the whole, we feel constrained to accept the finding of the court below that upon the reconveyance the property became the separate property of the husband, and the legal title is now vested in the respondent. The alleged guardian's deed was made without any order or authority from any court, and is of course a nullity. The only remaining question in the case is the value of the permanent improvements which the court below found the appellants had made while holding in good faith, under color or claim of title, adversely to the claim of the respondent. All the testimony relating to this question is found in an ex parte affidavit of W. H. Palmer submitted by the appellants, and a similar affidavit of one Green submitted by the respondent, which the parties stipulated might be read and considered as evidence at the trial. The former affidavit placed the value of the lots without the improvements at $250 each, and the value of the improvements at $1,300. The latter placed the value of the lots at $250 each, and the value of the improvements at $700. Under this testimony-and there is none other-the finding of the court that the improvements were of the value of $400 is manifestly contrary to the evidence. There is nothing in the record to guide us in fixing the value of the improvements, except the naked statements of these two witnesses; but in this respect we are no more in the dark than was the court below. On the one band, the affidavit offered by the appellants was made by a party in interest who no doubt had in mind the original cost of the improvements, rather than their present value, while, on the other hand, he made the improvements and doubtless had a more accurate knowledge of their extent and value than would a mere stranger. Under all the circumstances we think $1,000 is a fair value to place upon the improvements, and we therefore fix the value in that sum. The judgment of the court below was also erroneous in form. It left the appellants in possession of the property with a lien of $400, with no remedy for its enforcement except to retain possession or wage another lawsuit. The judgment of the court below is reversed, with directions to enter judgment establishing the rights of the parties in accordance with the provisions of the act of March 16, 1903 (Laws 1903, p. 262, c. 137). In entering judgment the court will accept the values fixed by this court, namely, $250 each for the lots without the improvements, | a contract, whereby the former agreed to and $1,000 for the improvements. perform the work and furnish material for the printing of 3,500 copies of a catalogue DUNBAR, PARKER, CROW, and MOUNT, for the latter at the agreed price of $800. JJ., concur. (55 Wash. 461) GENERAL LITHOGRAPHING & PRINT- (Supreme Court of Washington. Nov. 2, 1909.) 1. CONTRACTS (§ 23*)-CONDITIONAL ACCEPTANCE SUBSEQUENT RECOGNITION OF CON TRACT. Though plaintiff's acceptance of an offer to pay a certain amount for the printing of a catalogue by it was conditional in requiring extra compensation if certain changes were made, the contract was complete if both parties subsequently treated it as existing in accordance with the acceptance. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 96; Dec. Dig. § 23.*] 2. GUARANTY ( 4*) – CONTRACT - ORIGINAL OBLIGATION. Where plaintiff contracted with another to print a catalogue in which defendant was in terested because the catalogue was to be used for advertising by it and such other, defendant, by agreeing to assume payment of the price of the catalogue on condition that there would be no additional charges beyond the original contract price, and in consideration of the release of the original party, assumed an original obligation, and did not merely guarantee payment of the price when the catalogue was delivered. [Ed. Note. For other cases, see Guaranty, Cent. Dig. § 3; Dec. Dig. § 4.*] In pursuance of the terms of the contract, the plaintiff proceeded with the work, when the Mix Fire Apparatus Company requested plaintiff not to complete same until further orders, and thereupon plaintiff held the printed forms for the work for a period of two months, for which it was entitled to $50 as a reasonable charge for the holding of the forms. On the 15th day of November, 1907, in consideration of the release and discharge by the plaintiff of said claim of $50 for holding the forms, and a continuation and completion of the contract as originally made, the defendant entered into a contract in writing whereby plaintiff was to complete the catalogue, and the defendant was to acIn pursuance of cept and pay for the same. this last contract, the plaintiff proceeded to perform the same and submitted proofs for correction to defendant preparatory to final printing, but defendant wholly failed and refused to correct and return said proof, and refused to allow the work to proceed or to fulfill the terms of the contract on its part. The reasonable value of the work and labor in and about the composition performed by plaintiff is $200. The reasonable value of labor incident to the furnishing of proof to defendant is $25. The depreciation in the value of paper purchased by plaintiff for the work, and left on hand is $100, and the profit plaintiff would have made upon the con 3. DAMAGES ( 124*)-BREACH OF CONTRACT-tract had it been allowed to complete the MEASURE. Where plaintiff contracted to print a catalogue for defendant, and to submit proof for correction and make final delivery, the measure of damages for defendant's breach in refusing to return the proof, and thus preventing completion of the work, was the reasonable value of the work done in printing, the reasonable value of that incident to furnishing proof to defendant, the depreciation in value of the paper purchased by plaintiff for the work and left on hand, and plaintiff's prospective profits on the contract. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 326-338; Dec. Dig. § 124.*] Department 2. Appeal from Superior Court, King County; Mitchell Gilliam, Judge. Action by the General Lithographing & Printing Company against the Washington Rubber Company, Incorporated, for breach of contract. From a judgment for plaintiff, defendant appeals. Affirmed. Ira Bronson and D. B. Trefethen, for appellant. Shank & Smith, for respondent. PARKER, J. The facts in this cause as found by the court, the trial being by the court without a jury, are in substance as follows: About June 24, 1907, the plaintiff and Mix Fire Apparatus Company entered into same is $200 From these facts the court concluded as a matter of law that plaintiff was entitled to recover from defendant $525, and rendered judgment accordingly, from which defendant has appealed. Appellant, having filed its exceptions to the court's findings, contends that there was no contract shown by the evidence to have been entered into between the parties, the breach of which would warrant a recovery. The contract referred to in the court's findings as being entered into between the appellant and respondent is evidenced by two letters as follows: "Seattle, Wash., 11-6-07. General Lithographing & Printing Co., CityGentlemen: Referring to the writer's conversation with your Mr. Graff about six weeks ago, at which time he proposed to him that The Washington Rubber Co. would be willing to assume the payment of $800.00 for the catalogue ordered from his Company by the Mix Fire Apparatus Co. on delivery of said catalogue in accordance with the contract, as placed, we herewith confirm said offer on condition that there will be no additional charges beyond the original contract price of Eight Hundred Dollars ($800.00). Kindly advise us what decision you have come to on this offer and oblige, Yours re spectfully, The Washington Rubber Co. By in the completion of the catalogue, in that it Franz F. Richter, Pr." "Nov. 15, 1907. Washington Rubber Co., 216 Jackson St., City-Gentlemen: In answer to your letter dated November 6th, 1907, we beg to accept your proposition with the understanding that we are to have $800.00 for the catalogue printed as originally | agreed, and no changes to be made in your copy or corrections except at your expense. The job has been set and waiting for you at some time, ready to run. We believe there will be no changes necessary but in case there are, we will expect $1.25 per hour for composition changes. Yours truly, General Lithographing & Printing Co." Counsel for appellant argue that the language of the second letter does not constitute an unconditional acceptance of the proposition contained in the first letter because of the words therein: "And no changes to be made in your copy or corrections except at your expense." There may be room for argument as to whether or not these words so qualify the acceptance as to make it conditional, and thereby prevent the meeting of the minds of the parties. We are not inclined to so regard it; but rather as a statement indicating that there would be extra charge for any extra work beyond the strict terms of the contract. The latter part of the letter lends support to this view. However, this involves only a question of construction, which we are relieved from solving if as a matter of fact the parties subsequently treated the contract as existing. Mr. Graff, the president of respondent company, referring to a time immediately following the exchange of the letters, testified: "We immediately took new proofs as requested. Mr. Richter told me to go ahead with the work and to furnish new proofs for Mr. Mix to correct, which we did." If this be true, and we think the trial court was warranted in so believing from the evidence, it at once becomes apparent that both parties regarded the contract as complete. It is contended that, even if the contract was to be an advertising medium for the appellant and its goods as well as for the Mix Fire Apparatus Company. This was the apparent purpose of all parties from the time of making the first contract, though ap pellant was not a formal party to that contract. What understanding it had with the Mix Fire Apparatus Company before the new contract, if any, as to assisting in paying for the publication, does not appear, nor is it material. The fact of its direct interest is no less apparent; hence the making of the contract created an original obligation on the part of appellant. See 20 Cyc. 1397-98, and authorities cited. It was in effect a new contract for the printing of the catalogue, and appellant, having failed to perform on its part, became liable in damages to respondent, which we think the trial court has correctly measured. Other contentions of learned counsel for appellant we do not think require discussion. The judgment is affirmed. RUDKIN, C. J., and DUNBAR, MOUNT, and CROW, JJ., concur. (55 Wash. 357) SMITH v. HEWITT-LEA LUMBER CO. (Supreme Court of Washington. Oct. 27, 1909.) 1. MASTER AND SERVANT (§ 281*) — ACTIONS FOR INJURIES-SUFFICIENCY OF EVIDENCE. In a servant's action for injuries, evidence held to support a finding that plaintiff was not guilty of contributory negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 987; Dec. Dig. § 281.*] 2. MASTER AND SERVANT (§ 280*) — AssumpTION OF RISK-EVIDENCE. In a servant's action for injuries, evidence held to support a finding that plaintiff did not assume the risk. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 981; Dec. Dig. § 280.*] 3. MASTER AND SERVANT (§ 276*)-SCOPE OF EMPLOYMENT EVIDENCE. In a servant's action for injuries, evidence held to support a finding that when injured ployment. plaintiff was acting within the scope of his em [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 952; Dec. Dig. § 276.*] 4. MASTER AND SERVANT (§ 238*)-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCEKNOWLEDGE OF MASTER. was entered into between appellant and respondent, the catalogue was never furnished as agreed, and that the finding of the court to the effect that the defendant failed and refused to return the proof and refused to allow the work to proceed was not warranted dangerous, the employer who used the passageWhere the passageways through a mill were by the evidence. While there was some con-ways himself was chargeable with notice of the flict in the evidence, we think it sufficient danger, and employés will not be charged with to support the court's finding on that ques-contributory negligence in using the ways. tion. It is further contended that the letter of November 6, 1907, was no more than a guarantee of payment for the catalogue when delivered, and therefore there could be no liability until it was actually completed and delivered. We think this contract was something more than a mere guaranty. The evidence shows appellant had a direct interest [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 681, 743-748; Dec. Dig. § 238.*] 5. MASTER AND SERVANT (§ 213*)-INJURIES TO SERVANT-ASSUMPTION OF RISK-KNOWLEDGE OF MASTER. Nor were such employés chargeable with assumption of risk in using such passageways. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 559-564; Dec. Dig. § 213.*] or other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |