the effect that any use of a highway will was rendered in favor of the plaintiffs. The eventually wear it out and thus permanently injure it, and that if permanent injury is the thing aimed at by the statute all use of a highway must be prohibited by it. But the parallel is hardly exact. It is not ordinary use that is prohibited; it is that use which of itself causes an immediate and sudden permanent injury to the highway that is aimed at, and no user of the way can fail to recognize the distinction. The judgment of the trial court is reversed and the cause remanded for further proceedings. plaintiffs moved for a new trial on various grounds, and also for an order vacating and setting aside the special finding against the plaintiffs for $500 on account of the purchase of the 40 acres of land. The court required the defendants to consent to the setting aside of the special verdict and the entry of a judgment for $515; otherwise a new trial would be granted. This was on the ground that there was no evidence to sustain the special finding. The defendant made the election required, and judgment was entered in favor of the plaintiffs in the sum of $515. From this judgment the plaintiffs appeal. The appellants were the owners of a tract HOLCOMB, C. J., and PARKER, MOUNT, of land in Walla Walla county consisting and BRIDGES, JJ., concur. (108 Wash. 180) BONO et ux. v. WARNER. (No. 15309.) (Supreme Court of Washington. Aug. 8, 1919.) LANDLORD AND TENANT 33-MODIFICATION OF LEASE-QUESTION FOR JURY. Defendant tenant's testimony that plaintiff landlords, or their authorized agent, had agreed to modification of a lease provision regarding disking the leased land, held to make question whether the lease had been modified one for the jury. Department 1. of approximately 700 acres, about 600 of which were or could be cultivated. Under the lease by which the respondent was occupying the land it was to be devoted to wheat raising. The lease provided that approximately half of the tillable land should be summer-fallowed during the year 1915 and a crop produced thereon in the following year, and that the other half should be summer-fallowed in 1916 for a crop in 1917, and so on thereafter during the term of the lease. By summer-fallowing was meant so treating the land that it would be in proper condition for seeding and the production of a crop the following year. The respondent went into possession in the year 1915 and produced a crop on what is referred to as the east half of the land during the year 1916. During Appeal from Superior Court, Walla Walla the latter year he did not summer-fallow the County; Edward C. Mills, Judge. Action by Charles Bono and Ambrosina Bono, his wife, against George Warner. Judgment for defendant, and plaintiffs appeal. Affirmed. John C. Hurspool, of Walla Walla, for appellants. Rader & Barker, of Walla Walla, for respondent. other, or what is referred to as the west half. Neither did he do any summer-fallowing the succeeding year. The action was brought to recover damages for the failure to summer-fallow as required awarded damages in a substantial amount by the lease. The jury, in a special finding, for the year 1918, and this was embodied in the judgment. The controversy here is over the failure of the jury to award damages for MAIN, J. By this action the plaintiffs, the the year 1917. During that year, as already owners of certain farm land, sought to re- pointed out, the west half, not being in crop, cover damages from the defendant, the ten- should have been summer-fallowed, but this ant, for failure to till the land in accordance was not done. The defendant in his answer with the terms of the lease contract. In the pleaded that by agreement of the parties the defendant's answer there were a number of portion of the land which had been cropped affirmative defenses pleaded in the nature in 1916 was prepared for a crop the succeedof counterclaims. One of these affirmative ing year; in other words, that by agreement defenses claims $500 for money advanced for of the parties the east half was to be cropped the purchase of 40 acres of land, not covered two years in succession. The appellants by the lease, for and on behalf of the plain- claim that no such agreement was made. tiffs. The cause was tried to the court and This question, if there was substantial evia jury. The jury answered three special in- dence to support the respective contentions, terrogatories submitted to them. The answer was one for the jury, under proper instructo one of the interrogatories was to the effect tions by the court. One of the errors claimthat the defendant had purchased the 40 ed is that the court refused to give the ap-. acres of land referred to and paid the sum of pellants' requested instructions upon this $500 therefor, for and on behalf of the plain-matter. In the instructions given, however, tiffs. A general verdict in the sum of $15 the question is covered, and we think suffi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) In an action for breach of marriage promise against one admitting that he was worth $90,000, a verdict for $30,000 cannot be said to be excessive. ciently. The question whether the east half | 4. BREACH OF MARRIAGE PROMISE 31was farmed two years in succession by agree- DAMAGES AMOUNT. ment of the parties was by the instructions given submitted to the jury. Whether there was evidence that was undisputed, if there had been no such agreement, which would sustain a substantial verdict and judgment, 5. NEW TRIAL it does not seem necessary here to inquire. There was much evidence by the respective parties upon the character of the land referred to as the west half, which was not summer-fallowed, and the probabilities of the kind of a crop that might have been produc ed thereon, had the same been summer-fal- HOLCOMB, C. J., and TOLMAN, MACK- Where plaintiff in a prior suit had given defendant a release directing dismissal, and defendant had filed no answer, and both parties treated prior action as dismissed, defendant could not contend in a subsequent action that another action was pending, although he withheld the release of dismissal from the files. 2. RELEASE 45-NECESSITY OF PLEADING-BREACH OF MARRIAGE PROMISE. Where a release is relied on in an action for breach of marriage promise, it must be pleaded as an affirmative defense. 3. APPEAL AND ERROR 1053(3)-HARMLESS ERROR-EVIDENCE-CURE OF ERROR BY IN STRUCTION. | 77(2)-PASSION AND PREJUDICE-AMOUNT OF DAMAGES. In an action for breach of marriage promise, where defendant admitted that he was worth $90,000, it cannot be said that an award of $30,000 damages indicated passion and prejudice on the part of the jurors against the de fendant. 6. NEW TRIAL 102(1)-NEWLY DISCOVERED Where counsel knew prior to trial that a proposed witness might have knowledge of material facts, that she was then at a place in Montana not more than 500 miles from the place of trial, and no effort was made to procure the attendance of the witness, or a deposition, then or during the trial, and no continuance was asked on account of such witness, matter as to which said witness could testify cannot justly be considered newly discovered evidence. 7. APPEAL AND ERROR 1015(5)-REVIEWDENIAL OF NEW TRIAL-BIAS Of JurorCONFLICTING AFFIDAVITS. Where a juror was sought to be impeached as to bias by affidavits as to statements tending to show prejudice, refusal of the trial court to grant a new trial will not be disturbed on appeal, where there were controverting affidavits denying such statements, and other counter affidavits as to the credibility of certain of the affiants making affidavits of bias. 8. NEW TRIAL 96-ABSENCE OF WITNESS. Where a witness, subpoenaed by defendant in a breach of marriage promise case, departed before testifying, and defendant did not use proper diligence in securing his apprehension, he cannot complain of being deprived of his evidence. Department 1. Appeal from Superior Court, Columbia County; Chester F. Miller, Judge. Action by Dora C. Bundy against B. L. Dickinson. Judgment for plaintiff, and defendant appeals. Affirmed. J. L. Wallace, of Dayton, and J. W. Brooks, of Walla Walla, for appellant. Geo. H. Rummens, of Seattle, and Leon B. Kenworthy, of Dayton, for respondent. HOLCOMB, C. J. This is an action for damages for an alleged breach of promise of marriage. Defendant's demurrer being overError, in an action for breach of marriage ruled, he answered, denying all material alpromise in permitting plaintiff to testify as to legations, whereupon the cause was tried to a promise of marriage made by defendant while the court and a jury, resulting in verdict of she was still married to another man, was cured by the instruction that, for plaintiff to $30,000 in favor of plaintiff. Defendant unrecover, she must show that the promise relied successfully moved for a new trial, and from on in the suit was made subsequent to plain-judgment entered on the verdict he appeals. tiff's divorce from her husband. It appears from the evidence that respond For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to promises of marriage claimed to have been made while she was still a married woman, while her action is founded on an alleged promise subsequent to the time she obtained a divorce. "The fact that appellant was under a legal disability to make a valid promise of marriage before her divorce did not disqualify her from making an effective contract after the disability was removed. * With mere ethical views as to the former agreement we have nothing to do. We are to determine the controversy here strictly upon the legal rights of the time of that first agreement." Leaman v. the parties as they are made to appear since Thompson, 43 Wash. 579, 86 Pac. 926. ent, who obtained a divorce from Fred Bundy on September 30, 1916, was employed as a cook on the farm of appellant's son during the summer of 1915. The relations between appellant and respondent at once became very intimate, appellant frequently calling on respondent and automobiling with her. This intimacy was marred by respondent commencing an action in July, 1917, against appellant for breach of promise of marriage. An amicable settlement was effected between the parties, respondent on September 6, 1917, delivering to appellant a release directing dismissal of her case. At the same time appellant voluntarily gave respondent in his own handwriting and over his own signature a testimonial as to her good character and his own high respect and regard for her. No order of dismissal was entered, appellant, having it in his keeping and control, never having filed the release; but neither did he answer or file any pleading. Thereupon, to all outward appearances, the "entente cordiale" was restored. Another "era of good feeling" was ushered in, and the parties again enjoyed each other's society. Appellant asserts that the holy influence of mutu-to September 6, 1917. The verdict of the al affection was never present during the alleged courtship. Respondent began to complain of neglect, but her complaints of inattention and failure to visit her were met with excuses of other engagements which precluded appellant's presence. The relations culminated in commencement December 29, 1917, of the present action, based upon a promise of marriage made on or about and frequently renewed after September 6, 1917, and resulted as heretofore stated. [1, 2] Appellant makes numerous assignments of error. His demurrer was properly overruled. The court had jurisdiction of the subject-matter and parties, there being no irregularity in the filing of the complaint, and the appearance of appellant being general. Respondent, by reason of the fact as alleged by her, that she was unmarried at all times mentioned in her complaint, had legal capacity to sue. As to the other subdivision of the demurrer that another action was pending for the same cause, it is sufficient to say that there is nothing in the record to indicate such fact. The parties treated the prior action as dismissed, appellant obtaining a release directing dismissal of the action commenced in July, 1917, but he withheld it from the files, and the present action was instituted December 29, 1917, based upon a promise made in September, 1917. If he relied on this release, same should have been pleaded as an affirmative defense. 4 R. C. L. 165. Appellant will not now be heard to complain. He chiefly endeavored to justify his conduct by showing immorality of respondent dating from the time she was employed by his son, and the error, if any, was cured by the court instructing the jury that, in order for respondent to recover, she must show that the promise relied upon in this suit was made subsequent to the commencement of the prior action, and on or about or subsequent jury is conclusive as to the contention of the respondent that on or about September 6, 1917, she and appellant made a mutual promise of marriage, and that appellant breached same. Both parties were in the presence of the jury, and it was their privilege to observe the demeanor of the parties and give such credit to their testimony as they deemed it deserved. Appellant testified concerning his relations with respondent from the summer of 1915 until immediately preceding commencement of this action. His explanation of constant association with respondent was a recital of a course of illicit conduct. He denied that love impelled them to seek the society of each other, and, instead of being gentlemanly mendacious or discreetly silent when a woman's reputation was at stake, he, with surprising effrontery, testified that they were incited solely by concupiscence, and mutually agreed that marriage was not to be considered by them. Admitting frequent compunctive visits because of his misbehavior, nevertheless, he asserted, he continued his libidinous course of conduct with her. His assertions as to such conduct, at least prior to September 6, 1917, are belied by his written testimonial heretofore noticed. [4, 5] Appellant also insists that the evidence in the case does not justify a verdict in favor of the respondent in the sum of | $30,000, and that it evidences on its face that the jury was influenced by passion and prejudice. Appellant next complains that the trial judge erred in admitting certain evidence "The text-writers and authorities agree with and rejecting other evidence; in giving im- a unanimity of opinion rarely found in the proper instructions to the jury, and in re-books that, in cases of breach of promise, sefusing to give requested instructions. duction, criminal conversation, and the like, [3] Respondent was permitted to testify as evidence of wealth is admissible as tending to (182 P.) show the value of that which the plaintiff would | State v. Moretti, 66 Wash. 537, 120 Pac. 102. have secured by a consummation or performance of defendant's promise." Larson v. MeMillan, 99 Wash. 627, 170 Pac. 324. [8] A witness named Tingley, subpoenaed by appellant, departed before testifying. It affirmatively appears that appellant did not use proper diligence to secure his apprehension, and cannot now complain of being deprived of his evidence. Finding no error, we are compelled to affirm the judgment. It is so ordered. TOLMAN, MACKINTOSH, MITCHELL.. and MAIN, JJ., concur. See, also, 4 R. C. L. 155-157. This being so, appellant admitting that he was worth $90,000, and the jury being properly instructed as to this phase of the case, under all the circumstances and conditions shown in this action, including the nature of appellant's accusations and imputations against the chastity and good character of respondent, we cannot conclude that the verdict, although very substantial and probably larger than any of us would award as jurors, indicates passion and prejudice against appellant or aught else than consideration of HARRIS v. SAUNDERS et al. compensation such as the law sustains. Kel-(Supreme Court of Washington. Aug. 9, 1919.) ly v. Navy Yard Route, 77 Wash. 148, 137 Pac. 444. (108 Wash. 195) (No. 15344.) 1. TRIAL 178 -DIRECTED VERDICT -CONTRADICTORY EVIDENCE. We have read the entire record with much care, and not only have we been unable to find any erroneous prejudicial rulings on the admissibility of evidence, but it is our conclusion that the evidence admitted amply sus-jury, and not the court. tains the verdict of the jury. The requested 2. EVIDENCE 591-WEIGHT. instructions were properly rejected. Neither do we find any merit in the assignment that the court erred in giving other instructions. We are convinced that the trial judge carefully submitted to the jury all the issues raised by the pleadings of both parties, in In passing on a motion for a directed verdict, disputes in the evidence and disputed inferences arising from the evidence are for the accordance with the law. A litigant is not bound by the unfavorable testimony of his own witness. 3. FRAUD 64(3)—JURY QUESTION. misrepresentations, although defendant testified, as a witness for plaintiff, that his knowledge was confined to a certain branch of corporation's business which had always been success ful. 4. FRAUD 58(1) —DamAGES -SUFFICIENCY OF EVIDENCE. Evidence that defendant told plaintiff that vice president and trustee was successful, had a motorcar company of which defendant was declared dividends, and that its growing busi[6] A question is raised as to newly dis-ness demanded expansion, etc., held to make a covered evidence upon the motion for new jury question whether defendant made false trial of a witness named Millie Prater. In view of the nature of the evidence discovered and its controversion by respondent and a showing as to the age and infirmity of the proposed witness, it cannot be presumed that the newly discovered evidence would affect the verdict. Moreover, the fact was known to one of counsel for appellant that the proposed witness might have knowledge of facts material to the defense prior to the commencement of the trial, and that she was then at a place in Montana not more than 500 miles from the place of trial, and no effort was made to procure the attendance or deposition then or during the trial, or a showing for continuance on account of such witness; hence this cannot justly be considered newly discovered evidence. The trial court did not abuse its discretion in denying a new trial on that account. [7] A juror is sought to be impeached as to bias by affidavits as to statements tending to show prejudice on his part against appellant. Controverting affidavits denying such Evidence that a corporation had mortgaged its property shortly before plaintiff invested in its stock, that it never paid such debt, and soon became insolvent, with prospects of paying only 20 cents on $1, held sufficient to sustain a jury finding that stock had no actual value when plaintiff invested. 5. DEPOSITIONS 95 INTRODUCTION OF PART. -- A party desiring to read a portion of a deposition taken by the adverse party may do so, if he reads all that portion relating to a transaction which is separate and independent from other transactions related in deposition. Department 2. Appeal from Superior Court, King County; A. W. Frater, Judge. statements and other counter affidavits as to the credibility of certain of affiants mak- Action by G. W. Harris against E. E. Ger ing affidavits for appellant were filed and linger and R. L. Saunders. From that porpassed upon by the court. This matter is tion of a judgment directing a verdict for degoverned by our decision in State v. Under- fendant Saunders, the plaintiff appeals. wood, 35 Wash. 558, 573, 77 Pac. 863, and Reversed and remanded. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes S. H. Kelleran and E. E. Hess, both of [for the return of the money invested; that Seattle, for appellant. $300 thereof, and no more, had been returned Earle & Steinert and C. H. Winders, all of to him; that the corporation had been adSeattle, for respondent. judged insolvent, and at the time of the filing of the complaint was in the hands of a receiver. On the issues framed a trial was entered upon by the court, sitting with a jury. At the conclusion of the appellant's evidence a challenge to its sufficiency was interposed by the respondent and sustained by the court. The court thereupon charged the jury to return a verdict in favor of the respondent Saunders and against the defendant Gerlinger. This was done and a judgment entered accordingly. This appeal is from that part of the judgment in favor of the respondent Saunders. FULLERTON, J. In this action the appellant, Harris, seeks to recover from the re- The defendant Saunders answered sepaspondent Saunders and the defendant Ger-rately. He denied generally all of the allinger the sum of $3,200, paid by him for legations of the complaint, save the allegashares of the capital stock of a corporation tions that the appellant purchased certain known as the Gerlinger Motorcar Company. of the capital stock of the corporation In his complaint the appellant charges named; that the corporation had given its that the persons named conspired together obligation to repurchase the stock at the to induce him to purchase the stock by false- end of 90 days; that the corporation was ly representing the business condition and the then in the hands of a receiver; and that financial condition of the corporation named. but $300 of the appellant's investment had He charges that they represented to him that been returned to him. The defendant Gerthe corporation was engaged in the manufac- linger also appeared and answered, but ture of a truck called by the trade name of prior to the trial withdrew his appearance "Gersix"; that the truck had been thoroughly and default was entered against him. tested; that it had an established reputation; had proven satisfactory to the trade; and that the output of the factory was meeting with a ready sale. He further charged that the defendants represented that they were officers and stockholders of the corporation, and had paid to the corporation the par value of their stockholdings in cash, that they were familiar with the financial condition of the corporation, that it was absolutely and completely solvent and in a flourishing condition, and that during the two years immediately preceding it had paid annual dividends to its stockholders of 12 per cent.; and promised that if he bought capital stock of the corporation and within 90 days became dissatisfied they would refund to him the money invested, and that to give their promise the semblance of good faith they caused a similar promise in writing to be made by the corporation, although they well knew that such a promise could not be enforced in law. He further charges that, relying on the good faith of the representations, he invested $3,500 in the capital stock of the corporation and received the written promise of the corporation to refund the money invested within 90 days in case he should become dissatisfied with his investment. He then charges the falsity of the representations, averring specifically that the truck the corporation was engaged in manufacturing was not a product of established reputation and had not proven satisfactory to the trade; that the corporation was not then in a flourishing condition nor solvent, but was in fact insolvent; that it had not paid 12 per cent. dividends on its capital stock annually during the preceding two years, nor any dividends thereon; and that the respondent Saunders, instead of paying cash at the par value for his stock, did not pay anything for such stock. He further alleged that he discovered the falsity of the representations within the 90-day period and made demand [1, 2] The appellant's assignments of error question the correctness of the order of the trial judge sustaining the challenge to the sufficiency of the evidence. In determining the question it must be kept in mind that the judge was not the trier of the facts. The complaint stated a cause of action, and the appellant was entitled to recover if his evidence proved the substance of his cause of action. The action was one of legal cognizance, being tried by the jury as such. The trial judge therefore was warranted in sustaining a challenge to the sufficiency of the evidence only if there was no substantial evidence on the part of the appellant tending to support the material issues. Disputes in the evidence and disputed inferences arising from the evidence were for the jury to determine, not the trial judge. It must be remembered also that in passing upon this question the appellant was entitled to have considered, where the evidence is contradictory, or where favorable or unfavorable inferences can be drawn from the evidence, that part of the evidence most favorable to his contention. It is not the rule that a litigant is bound by the unfavorable testimony of a witness, even though that witness may be one he himself produces; that is to say, if a plaintiff produces evidence tending to support his allegations and then introduces a witness who contradicts his former evidence, he may still go to the jury on the question, as the contrary rule |