Department 1. or 24th of June, taking care of the irrigaAppeal from Superior Court, Benton tion of the crops, keeping part of his house: County; Truax, Judge. hold goods, his milch cow, and a number of Action by C. Wynn against Mary E. Ves- fowls on the place. All the possession, as sey. From a judgment nonsuiting the plain- shown by the evidence, that was ever taken tiff, he appeals. Affirmed. by appellant, was attempted possession of Wm. L. Waters, of Grandview, for appel-possession, for the lessee was still working the crops, and even that was not undivided lant. Henry H. Wende, of Yakima, for respond ent. HOLCOMB, J. This appeal is from a nonsuit in a forcible detainer case. The action was brought under Rem. Comp. Stat. § 811, which provides: "Every person is guilty of a forcible detainer who either, never had complete possession of the place, upon the crops until June 23d. Appellant but remained at his own home in Grandview, some miles distant, and went out to the place each day to see after the irrigatself, as he said, on the 23d or 24th of June. ing. That work he commenced to do him On June 27th, when he went out to the place to begin cutting hay, respondent already had * in the nighttime, or dur- a man cutting the hay who had been at work ing the absence of the occupant of any real a day or so, and respondent ordered appelproperty (unlawfully) enters thereon, and who, after demand made for the surrender thereof, lant off the place. He, thereafter, on July refuses for the period of three days to sur- 1st, gave respondent written notice to surrender the same to such former occupant. The render possession of the place to him within occupant of real property within the meaning three days, which she refused to do. On of this subdivision is one who, for the five days the 23d of June, according to appellant's next preceding such unlawful entry, was in the own testimony, both he and respondent were peaceable and undisturbed possession of such attempting to persuade Sherwood "to stay real property." on the place and harvest the crop." It is manifest that such limited and dividThe action was brought upon the theory that, even though appellant was not the leed possession as was shown by appellant is gal tenant, if he had peaceable and undis- not sufficient possession of real estate to enturbed possession of the real property of re- title him to dispossess the landlord, who had spondent for five days next preceding the taken possession after the abandonment of unlawful entry by respondent, he was en-tenancy by her lessee. The mere intention titled to dispossess her in this form of ac- of the tenant to abandon the premises on tion, and that furthermore he was accepted June 20th, and up to June 23d, followed by acts in effectuation thereof, does not put an as a tenant by respondent. end to possession until actual occupancy was terminated. 11 R. C. L. 1153. Appellant insists that the title or the right of tenancy was not in litigation in this case, but only the right of possession at the time of the dispossession, and relies upon the cases of Gore v. Altice, 33 Wash. 335, 74 Pac. 556, and Ridpath v. Denee, 85 Wash. 322, 148 Pac. 15. "In a general sense it may be said that a party is in possession of property when he exercises dominion or control over it not shared as owners of like property usually exercise over with any other person, and of such a character it." 11 R. C. L. 1146. We have decided that where a tenant had conceived the purpose to surrender the premises to his landlord and put an end to the lease, and had begun to remove his effects, but the house was still occupied by him, and part of his movables, there was sufficient to make him an actual occupant until he yielded up possession by removing himself, family, and his property from the premises. Chezum v. Campbell, 42 Wash. 560, 85 Pac. 18, 7 Ann. Cas. 921. [1] The facts presented by appellant as plaintiff in the court below to the court and jury were in substance as follows: One Sherwood had been in possession of the premises from February 21, 1920, under an assignment of a lease by one Keylon from respondent. Sherwood farmed the premises under the provisions of the lease until the latter part of June, 1922, when he desired to abandon the premises. The lease provided that it should not be assigned or sublet without the written consent of respondent, the lessor. Appellant had a mortgage upon [2] Holding a chattel mortgage on crops, the undivided one-half interest in all crops and a grant of possession thereof by the of every nature, and the pasture grown dur-mortgagor, would give no right to possess ing the year 1922, upon the leased premises. the land. The lease also provided that the title to the It is manifest, therefore, that appellant crops should remain in the lessor (respond- was not in such exclusive, peaceable, and unent) until delivered to the nearest shipping disturbed possession of respondent's premispoint. There was evidence that Sherwood attempted to deliver possession of the crops to appellant on June 20, 1922, but that he continued to work on the place until the 23d es for five days as to give him the right of action under the statute relied upon. Regardless of the precise reason given by the trial court for taking the case from the (221 P.) jury and granting a nonsuit, the nonsuit, an appeal, if taken therefrom, the court, on was proper. Judgment affirmed. MAIN, C. J., and TOLMAN, PARKER, and MACKINTOSH, JJ., concur. SMYTHE v. SMYTHE. (No. 18045.) (Supreme Court of Washington. Dec. 20, 1923.) 1. Divorce 182-Appeal from interlocutory decree precludes entry of final decree. motion of either party, shall confirm such order and enter a final judgment granting an absolute divorce, from which no appeal shall lie." The lower court was without juIrisdiction to enter the final decree. By the appeal this court had obtained and the lower court had lost jurisdiction. For the purposes of this motion we must therefore treat the final decree made by the trial court as a nullity. Its action was in direct violation of section 988-1. We must therefore dispose of the case upon its merits. [2] The appellant does not seriously question the correctness of the interlocutory orA final decree of divorce entered while an der, in so far as it adjudged that the respondappeal from an interlocutory decree was pend-ent was entitled to a divorce, but contends ing is, under Rem. Comp. Stat. § 988-1, with- that there was an unjust division of the propout the jurisdiction of the court, and though entered at the instance of appellant is a nul-erty. The court awarded to the respondent such real and personal property as belonged lity, and not ground for dismissing the apto the parties, of the value of $1,200 to $1,500. peal. He also required the respondent to pay $50 a month for six months to the appellant. There is no issue of the marriage. 2. Divorce 252-Property division held not unjust. A division of property, by which all real and personal property belonging to the parties, and valued at $1.200 to $1,500, was awarded to plaintiff husband, who was required to pay defendant $50 per month for six months, held not unjust, there being no issue of the marriage. Department 2. Appeal from Superior Court, King County; Card, Judge. Action for divorce by Harry J. Smythe against Sophia M. Smythe. From an interlocutory judgment for plaintiff, defendant appeals. Affirmed. John F. Dore and H. A. P. Myers, both of Seattle, for appellant. Albert D. Martin, of Seattle, for respond ent. BRIDGES, J. The trial court entered an interlocutory order to the effect that the plaintiff was entitled to a divorce from the defendant, and making a division of the property of the parties. From this judgment the defendant appealed. After the case was argued here upon its merits, the trial court, upon the motion of the appellant, entered a final decree of divorce. At that time six months from the entry of the interlocutory order had expired. Based upon this fact, the respondent now moves that the appeal be dismissed, taking the position that the appellant, by procuring the trial court to enter the final decree, has abandoned her appeal. The trial court had the parties before it; knew better than we can their physical and mental condition, and was in a better position to judge as to what would be a just division of the property than we. From the record we cannot say that he abused the discre tion given him by the statute. The judgment is affirmed. MAIN, C. J., and FULLERTON, MITCHELL, and PEMBERTON, JJ., concur. MOORMAN et al. v. BYRON. (No. 18124.) (Supreme Court of Washington. Dec. 18, 1923.) 1. Municipal corporations 706(7)-Contributory negligence of pedestrian struck by vehicle held for jury. In an action for injuries to a pedestrian, when struck by defendant's stage, in which there was evidence that from plaintiff's position on the crossing, she would not naturally see defendant's stage before it struck her, and that defendant stated that he did not see her, held that she was not guilty of contributory negligence as a matter of law. 2. Municipal corporations 706 (6)-Negligence as to pedestrian, held for jury. In an action for injuries by a stage, operated in a city street, question of defendant's negligence held for the jury. Department 2. Appeal from Superior Court, Snohomish County; Alston, Judge. [1] The motion to dismiss must be denied. Section 988, Rem, Comp. Stat., provides for the interlocutory order, and section 988-1 provides that "at any time after six months have expired, after the entry of such interlocutory order, and upon the conclusion of Judgment affirmed. Action by Emma Moorman and R. J. Moorman against Thomas Byron. Judgment for plaintiffs, and defendant appeals. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 298 221 PACIFIC REPORTER Sherwood & Mansfield, of Everett, for ap- were facts for the jury. Tooker v. Perkins, 86 Wash. 567, 150 Pac. 1138; Adair v. Mcpellant. Wm. Sheller and Louis A. Merrick, both of Neil, 95 Wash. 160, 163 Pac. 393. The judgment is affirmed. Everett, for respondents. PEMBERTON, J. This is an action for the recovery of damages for injuries received by respondent Emma Moorman. [1, 2] On the 6th day of January, 1922, re spondents were walking north on the east side of Colby avenue in the city of Everett. There is a street car track near the center of Colby avenue. Upon reaching Everett avenue respondents turned to the left, and at the street crossing proceeded as far as the street car track. At this point they hesitated, looking both to the right and to the left, and, seeing that the way was clear, respondent Emma Moorman stepped forward to cross to the curb on the west side of Colby At or about this time a stage driven by appellant was on the north side of Everett avenue, proceeding westerly at the street intersection. Appellant seeing a car coming from the west stopped his stage, and, noticing that the right of way had been giyen him, proceeded forward and to the left, making the turn to go south on Colby avenue, and the stage ran against respondent Emma Moorman, causing the injuries complained of. avenue. To the complaint of respondent, appellant alleged as an affirmative defense that the respondents were guilty of contributory negligence. The case was submitted to a jury. At the conclusion of the testimony of respondent the appellant moved for a dismissal of the action on the ground that the testimony was not legally sufficient to establish negligence on the part of appellant, and upon the further ground that respondents were guilty of contributory negligence as a matter of law. The motion was denied. At the conclusion of all the testimony the motion was renewed and denied. A verdict was returned in favor of respondents in the amount of $685. Appellant moved for judgment notwithstanding the verdict. This mo tion was denied, and judgment was entered in favor of respondents, from which this appeal is taken. At the time respondent was injured she was on the westerly side of Colby avenue, on the crosswalk south of the street intersection, and before passing from the street car track westerly would naturally not see appellant's car going westerly on the north side of Everett avenue. There is some testimony to the effect that appellant stated after the accident that he did not see respondents. MAIN, C. J., and MITCHELL, FULLER- OLIPHANT v. GILHAM. (No. 18259.) Appeal and error Dec. 28, 907(3)-Record held inreview of court's exclusion Without bills of exception or statements of fact certified by the trial judge, or a ruling on the sufficiency of the pleadings in the record, the exclusion of evidence offered in support of the pleadings cannot be reviewed; the disposition of the cause being controlled by the presumption of no error. Department 1. Appeal from Superior Court, King County; Davidson, Judge. Action by J. C. Oliphant against T. H. Gilham and others. Judgment for plaintiff, and defendant named appeals. Affirmed. Lot Davis, of Renton, and Tom Alderson, of Seattle, for appellant. Wingate & Benz, of Seattle, for respondent. PARKER, J. The plaintiff, Oliphant, seeks recovery from the defendant, Gilham, for an alleged agreed compensation for services rendered. The cause proceeded to trial in the superior court for King county upon Olianswer and phant's complaint, Gilham's cross-complaint, and Oliphant's answer to Gilham's cross-complaint, resulting in findings and judgment awarding to Oliphant judgment as prayed for, from which Gilham has appealed to this court. In The findings support the judgment. deed, we are unable to see in the brief of It is, however, contended counsel for Gilham any serious contention to the contrary. by counsel for Gilham that the trial court erred to his prejudice in rejecting evidence claimed to have been tendered upon the trial in his behalf in support of his cross-complaint. We do not have in the record be fore us any bill of exceptions or statement of facts certified by the trial judge, hence are wholly unadvised as to what occurred upon the trial of the case or as to what this Nor was After reviewing the testimony in this case, claimed tender of evidence was. there any demurrer to Gilham's cross-comwe are satisfied that the respondents were not guilty of contributory negligence as a plaint furnishing the trial court opportunity matter of law, and this being true, both the to rule upon its sufficiency and to evidence negligence of the appellant and the contrib- such ruling by proper order entered of recutory negligence, if any, of respondents ord apart from a bill of exceptions or stateFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (221 P.) ment of facts. The record before us being in this condition, manifestly we are wholly unable to determine whether or not the trial court erred in the rejection of the evidence claimed by Gilham's counsel to have been tendered in his behalf upon the trial. Our disposition of the cause must therefore be controlled by the presumption that there was no error committed in the trial of the cause, or in its final disposition by the trial court. The judgment is affirmed. There were other parties defendant against whom the judgment was also rendered, who are of course equally bound by it. We have referred to Gilham as though he were the only defendant and appellant merely for convenience of expression. ue of at least two thousand dollars ($2,000) during the life of this mortgage, and that all goods, wares and merchandise in the possession of and the property of the mortgagor shall be subject to and governed by this mortgage until the full amount of the said mortgage has been paid." The appellant commenced suit for the foreclosure of this mortgage, making Waters a party defendant. Thereafter the defendant became insolvent and made an assignment to the intervener and respondent, Seattle Merchants' Association. The latter attacked the legality of the mortgage, contending that it was void as against creditors of Waters. After trial, the lower court held the mortgage to be void as to all of the mortgaged property except the fixtures therein describ MAIN, C. J., and HOLCOMB, TOLMAN, ed, of the value of $217. The sole question and MACKINTOSH, JJ., concur. GENERAL MERCANTILE CO. v. WATERS (SEATTLE MERCHANTS' ASS'N, Intervener). (No. 18209.) raised on this appeal is the validity of the mortgage as to the goods, wares, and merchandise. In the case of Miller v. Scarbrough, 108 Wash. 646, 185 Pac. 625, decided in 1919, we said: "As has been indicated, there is in this case no such collateral verbal understanding as this (Supreme Court of Washington. Dec. 14, court has in several cases decided would vali 1923.) Chattel mortgages 190 (2)-On shifting stock, must provide for application of proceeds on debt. A chattel mortgage on a shifting stock of goods must provide, if the goods are to be sold in the usual course of business, that the proceeds, after expense of operation and upkeep, shall be applied on the mortgage debt, and not doing so, but merely providing that mortgagor shall at all times keep on hand goods of the value of at least a certain amount, is invalid, as against mortgagor's creditors. Department 2. date a mortgage on a shifting stock of goods, and therefore those cases are not directly before us to be affirmed or reversed; but, in fairness to those interested in ** such mortgages, and for their future guidance, it should be stated here that the court is of the opinion that the line of cases sanctioning collateral oral agreements [concerning the sale in due course of the mortgaged property and applying a portion of the proceeds to the payment of the indebtedness] should not be longer followed, being convinced that the rule such cases announce is illogical in reasoning and vicious in result. The proper rule to be applied to mortgages hereafter executed should be that, for a chattel mortgage on a shifting stock' of goods, which is to remain in the possession of Appeal from Superior Court, King County; the mortgagor to be disposed of in the usual Truax, Judge. Suit by the General Mercantile Company against W. E. Waters; the Seattle Merchants' Association intervening. From an adverse judgment, plaintiff appeals. Affirmed. 'Paul & Barker, of Seattle, for appellant. Grinstead, Laube & Laughlin, Harry A. Rhodes, and S. G. Climenson, all of Seattle, for respondent. BRIDGES, J. In the year 1921 the defendant Waters gave to the appellant, General Mercantile Company, a chattel mortgage covering the goods, wares, merchandise, and fixtures located in a certain building, to secure the sum of $2,000. The mortgage contained the following clause: "It is expressly understood and agreed that the mortgagor has the right to dispose of the above-described goods, wares, chattels and merchandise but shall always keep goods and merchandise on hand of the reasonable market val course of trade, to be valid the mortgage itself should provide the manner of maintaining and handling the stock, with provisions for an accounting and payments on the mortgage debt from the proceeds of the sale, after allowing for the expenses of the business and of the keeping up or building up thereof, to the end that creditors can, by an examination of the record, discover the real terms and obligations of the mortgage." Appellant has presented to us a carefully prepared brief, seeking to either distinguish the case at bar from that from which we have quoted or to have us recede from the position taken in that case. It argues that while there is no provision in this mortgage and no collateral oral or written 'agreement for a reduction of the mortgage indebtedness out of sales of the mortgaged property made in due course of business, yet the mortgage does provide that the mortgagor shall at all times keep on hand goods, wares, and mer. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes L. B. Donley and H. H. McCulloch, both of Colville, for respondent. chandise of the value of at least $2,000, and that this provision makes the mortgage valid. It is questionable whether such a mortgage would have been valid as against creditors, PEMBERTON, J. This is an action upon even under our decisions made prior to that a written contract for the sale of certain in the case of Miller v. Scarbrough, supra. cedar poles. On February 5, 1921, appelAs to any value of the goods in excess of $2,-lant as party of the first part and respond000, the mortgagor would have a right, under ent as party of the second part entered into the terms of this mortgage, to dispose of the a written contract, whereby appellant agreed proceds as he saw fit, without applying any to purchase "all poles that party of the secthereof to the reduction of the debt. But it ond part may deliver to the railroad loading seems certain that it is invalid under the spur at Colville, Wash., during the year 1921, doctrine of the Scarbrough Case. We there but not to exceed 5,000 poles in all, unless expressly held that all the terms of the agree- a greater number is mutually agreed upon." ment must be set out in the mortgage itself, Certain poles were delivered by respondent and that, among other things, it must pro- during the year. Upon the refusal of apvide (if the property is to be sold in the usu- pellant to accept the same, respondent sold al course of business) that the proceeds, aft- the poles in the open market, and recovered er the expense of operation and upkeep, judgment for the difference between the should be applied upon the indebtedness. price received and the contract price, from This mortgage does not make any such pro- which judgment this appeal is taken. vision. It is said in appellant's brief that the portion which we have quoted from the Scarbrough Case was not necessary to the decision of that case and is therefore dictum. Be it said that what we there wrote was after mature deliberation of the entire court, and if it be dictum in that case, we make it the law of this case. The judgment is affirmed. MAIN, C. J., and FULLERTON, MITCHELL, and PEMBERTON, JJ., concur. (No. 18074.) LASSWELL v. ANDERSON, 1. Sales 23(5)-Execution by second party An agreement to buy all poles that the party of the second part may deliver to a certain railroad loading spur during 1921, not exceeding 5,000, being in the nature of a continuing offer, plaintiff's execution by delivering certain poles during that year made it an enforceable contract. 2. Contracts 10(1)-Unilateral contracts become enforceable, in so far as executed. Contracts unenforceable for lack of mutuality become enforceable, in so far as they become executed contracts. Department 2. [1] It is the contention of appellant "that, where one party makes a promise, while the performance by the other party is left wholly at his will and under his control, there is no contract, for there is no binding promise which may act as a consideration." In support of this contention, appellant relies upon the statement of this court that "There is little or no disagreement among the cases that to sustain a contract on the principle of mutual promises the promises sufficient to support such a contract must be mutual and concurrent, and obligatory upon each of the promisors; that a promise by one party to another to do a certain thing in case that other does some other thing, leaving it optional with the other whether he does the thing or not, is not an obligatory contract.' Mowbray-Pearson Co. v. Stanton Co., 109 Wash. 601, 187 Pac. 370, 190 Pac. 330; Spokane Canal Co. v. Coffman, 61 Wash. 357, 112 Pac. 383; Brown v. Brew, 99 Wash. 560, 169 Pac. 992, [2] These cases relied upon by appellant were to enforce unexecuted unilateral contracts. We have held that such a contract is "no more than a continuing offer, and subject to revocation at any time." Herrin v. Scandinavian-American Bank, 65 Wash. 569, 118 Pac. 648. Under the court's findings there was no revocation on the part of appellant. The contract being in the nature of a continuing offer, and having been accepted and executed on the part of respondent, it becomes an enforceable contract, and "it is elementary that Appeal from Superior Court, Pend Oreille contracts which are unenforceable County; Carey, Judge. Action by I. J. Lasswell against U. S. Anderson. Judgment for plaintiff and defendant appeals. Affirmed. Danson, Williams & Danson, of Spokane (R. E. Lowe, of Spokane, of counsel), for appellant. become enforceable, in so far as they become executed contracts." Hamilton v. Best Gas Traction Co., 123 Wash. 488, 212 Pac. 1077; Taylor v. Ewing, 74 Wash, 214, 132 Pac. 1009; 6 R. C. L. 690; 13 C. J. 334. "Accordingly, where one makes a promise conditioned upon the doing of an act by another, and the latter does the act, the contract For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |