held, that appellants could not, under their answer, deny that the services were rendered by respondent, and that appellants should be confined to the question of the value of the services so rendered; and we think the ruling was correct. It was the right of appellants to have demanded a bill of particulars, or to have required a more definite statement, if the character and extent of the services were indefinitely set forth in the complaint; but under a mere denial of the value of the services they were not entitled to show that the services were not rendered. Van Dyke v. Maguire, 57 N. Y. 429. The court committed no error in allowing respondent to testify as to the amount expended by him for hotel and traveling expenses, nor in limiting the cross-examination of the witnesses Scott and Coleman, nor in the instruction given the jury concerning the effect to be given the testimony upon the subject of the value of professional services. We do not think that the language of the instruction was calculated to mislead the jury, and it is manifest from the verdict that such could not have been its effect.

Coming now to the question of former adjudication of the matters involved in this controversy, it appears from the record that respondent had instituted a prior suit to recover the sum of $500 as attorney's fees. That action was founded upon an express contract to pay said sum for said services. No other question was litigated therein. The question of the reasonable value of respondent's services, or of respondent's right to recover such reasonable value, was withheld from the consideration of the jury in the trial of that case. Referring to this prior suit, which was relied upon as a bar to respondent's right to recover in this action, the learned counsel for appellants upon the trial of this cause below admitted that no evidence was offered in the former trial to prove what the services were worth, but that the only question submitted for determination was upon respondent's theory of an express contract. We think the law is well settled that a judgment in a former suit on an express contract is not a bar to the second suit on a quantum meruit for the same services, and to determine whether a former judgment is a bar to a subsequent action it is necessary to inquire whether the same evidence would have maintained both of such actions. 1 Freem. Judgm. § 259; Kirkpatrick v. McElroy (N. J. Err. & App.) 7 Atl. 647. In Taylor v. Castle, 42 Cal. 372, the court say: "The cause of action is said to be the same where the same evidence will support both actions; or, rather, the judgment in the former action will be a bar, provided the evidence necessary to sustain a judgment for the plaintiff in the present action would have authorized a judgment for the plaintiff in the former." In 2 Black, Judgm. § 726, the learned author says: "For the purpose of ascertaining the identity of

the causes of action, the authorities generally agree in accepting the following test as sufficient: Would the same evidence support and establish both the present and the former cause of action? If so, the former recovery is a bar; if otherwise, it does not stand in the way of the second action." We have examined the error assigned by appellants in permitting respondent to explain the record of the former trial, but think that no error was committed. If, however, we were constrained to the opposite view, the same result would follow, in view of the admissions made by appellants' counsel upon the trial of this case in the court below as to the proceedings occurring upon the trial of the former action, which resulted in a judgment for defendants. No substantial error appearing in the record, the judgment will be affirmed.

ANDERS and DUNBAR, JJ., concur. HOYT, C. J., dissents.

(12 Wash. 313)

OWEN et al. v. ST. PAUL, M. & M. RY. CO. (Supreme Court of Washington. July 16, 1895.) CONDEMNATION PROCEEDINGS-NECESSITY OF NOTICE TO LANDOWNER-ESTOPPEL TO CLAIM

LAND AMENDMENT OF COMPLAINT.

1. Ejectment will lie against a railroad company for land, obtained by it under condemnation proceedings, at the suit of one not a party to the proceedings, who claims title under an unrecorded deed executed before the filing of lis pendens in such proceedings, when it appears that such person had possession of the land under a contract of sale, and the railroad company offered to buy the land before commencing the proceedings.

2. Where, in condemnation proceedings by a railroad company, counsel for defendant states that defendant does not claim the land sought to be condemned, the fact that the real owner, not a party to the proceedings, testifies to the value of the land, will not estop him from subsequently maintaining ejectment against the railroad company for the land.

3. An amendment of a complaint in an action of ejectment so as to show that the proper ty sued for is community property is properly allowed.

Appeal from superior court, Snohomish county; Henry McBride, Judge.

Action by Maria Owen and Nels Owen, her husband, against the St. Paul, Minneapolis & Manitoba Railway Company for possession of land. From a judgment for plaintiffs, defendant appeals. Affirmed.

Burke, Shepard & Woods, for appellant. A. W. Frater, for respondents.

DUNBAR, J. This is an action in ejectment brought by Maria Owen and her husband, Nels Owen, against the St. Paul, Minneapolis & Manitoba Railway Company. It is alleged that the plaintiffs had the right to immediate possession of the land, and that the defendant was in possession, and wrong. fully withheld the same from plaintiffs. The prayer of the complaint was that the plain

tiffs recover from the defendant the possession of said land, and all thereof, with the appurtenances, and their costs and disbursements. The answer of the defendant denied the material allegations of the complaint, except that the defendant was in possession of the land in dispute, which was lot 11 in block 3 of Highland Park Addition to Sultan City; and for an affirmative defense pleaded that on or about April 23, 1892, proceedings were begun in the superior court of Snohomish county by the defendant against one Almarion W. Graves and the American Mortgage Company to condemn and appropriate to the use of the company a strip of land across Highland Park Addition which included said lot 11 in question in this suit, and alleged that a notice of the pendency of this condemnation proceeding was duly filed in the office of the county auditor of Snohomish county on the 23d day of April, 1892, by which due notice was given to the said Almarion W. Graves and the American Mortgage Company, and to all other persons whatsoever, that said suit had been begun; set up the paragraphs and determination of said condemnation proceedings at length; that a jury was summoned, a trial had, and that the jury returned a verdict for the sum of $1,342, awarding the same to the said Graves, for the taking of the said strip of land described in the petition, including said lot 11 in question in this suit; alleging that a decree of appropriation followed, and that by said decree of appropriation the defendant acquired title to said lot; and also alleged fraud and collusion between the plaintiffs and Graves by which they sought to compel the defendant to pay a greater price for the right of way than it was fairly worth, and that the plaintiffs never had acquired any title or interest whatsoever in said lot, and that whatever interest they did have was subordinate to the title acquired by the railroad company in said condemnation proceedings; and prayed that the action might be dismissed at the cost of the complainants. The reply of the plaintiffs denied each and every allegation contained in the separate and affirmative answer of the defendant. A jury was waived and the case was tried before the presiding judge, and judgment rendered in favor of respondents in accordance with the prayer of the complaint.

Many points are discussed by appellant in this case which it seems to us are not pertinent to the case; but there are one or two main propositions upon which the cause must depend. First, were the respondents in any way bound by the decree of the court in the condemnation proceedings pleaded by appellant? If the court in that case had jurisdiction of the subject-matter and jurisdiction of these respondents, it cannot be denied that they are estopped from bringing this action. If it did not, then the respondents had a legal right to bring this action in ejectment, and under the testimony in this case they should

prevail. It is conceded that no notice was directly given to respondents in the condemnation proceedings, and that they are not made parties to the action. The lis pendens in the proceedings was filed April 23, 1892, and the condemnation suit was tried May 26, 1892. The testimony in this case shows that the respondents made a verbal agreement with Graves to purchase this lot in question in the month of April, 1891; that they at that time paid $5 in money,-the agreed price of the lot being $100,-entered upon possession of the lot, and made valuable improvements thereon, to wit, a livery stable, the possession of which they maintained until they were ousted by the railroad as a result of the order of the court in the condemnation proceedings above referred to. February 19, 1892, another payment of $20 was made, and on April 22d following a payment of $80, which completed the payment for the lot; and on that day a deed was executed in due form of law from Graves to the respondents for said lot, which deed was recorded on May 2, 1892. The contention of appellant is that by reason of the filing of its notice of pendency of action in the condemnation proceedings it acquired a right in lot 11 prior to the claim of respondents upon an unrecorded deed, and that the decree of appropriation subsequently obtained on June 4, 1892, related back to the time of the filing of the notice of the pendency of the action on April 23, 1892, so as to complete its title and give it priority over the unrecorded deed of respondents. We do not think this contention can be sustained under the facts in this case, for, whatever may have been their rights under the statute in the case where no actual notice of the respondents' interests existed, the record in this case overwhelmingly shows that appellant, the railroad company, through its authorized agents, had actual notice of the title and claim of these respondents; and, that being the case, appellant cannot rely upon the lack of constructive notice provided for by the statute, for, where actual occupancy and visible possession are proven, notice is presumed, and the parties in a case of this kind would require to be brought into court by a due process of law. This outside of all questions of the constitutional power of the legislature to authorize property to be taken by eminent domain without notice and an opportunity to be heard. Not only were circumstances proven in this case such as would put a prudent man on his guard, and from which actual notice might be inferred, but the testimony shows that actual notice was given, and that the right of way agents of the railroad company sought these respondents out and made propositions to them, looking towards buying the right of way through this lot, prior to the time the condemnation proceedings were instituted. Respondent Owen testified that Col. Crook, the main right of way agent of the company, agreed to settle with him for this lot. It seems that at the time

he had some conversation with him with ret erence to purchasing another house and lot on the east side of the river, but the witness positively states that he also said that he would settle for the lot which the barn was on (the lot in dispute). And Mr. Sherwood, a disinterested witness, testifies that George James, a right of way agent of appellant, asked him to make Mr. Owen an offer of another lot in place of the one in dispute; and on cross-examination, in answer to the question of appellant's counsel whether or not the lot he talked about was the lot where respondents' house was, on the east side of the river, he replied: "No. The lot across the river, where the barn is;" and again, in answer to a question of the same import, namely, "Was not that what you had your conversation with Mr. James about?" he replied: "No. The conversation was with regard to the barn property." And the witness testified that this conversation and this offer occurred prior to the commencement of the condemnation proceedings. Mrs. Owen also testified substantially to the same effect as to the offer made by the right of way agent. There is a feeble attempt on the part of the witness Crook to contradict these proofs on the part of the respondents, though he says that he thinks that the respondents made claim to this lot about the time the proceedings were commenced. In answer to the question, "The first you heard, then, that they claimed any title to the land, was in the condemnation proceedings?" he said: "Yes, sir. When we talked of commencing the proceedings, and I think about the time when they were first commenced, as near as I can recollect." In answer to another question, he says: "The first talk that I remember having with him was about the time the condemnation proceedings were commenced. He told me that he owned a barn, and, I think, that he owned a lot at that time; and I asked him what he considered them worth, and made a proposition to buy the barn." So that it seems, even from the appellant's own witnesses, that, really before the commencement of proceedings,-namely, at the time they talked of commencing them,-they were notified of respondents' ownership, and really made a proposition to respondent Owen to buy the property from him. Conceding that the testimony of witness Crook is absolutely true, it was the duty, then, of appellant, by supplemental proceedings, to have made these respondents parties to the action; but under the testimony in this case the court had a right to conclude that appellant had notice of the ownership of respondents prior to the commencement of the condemnation proceedings. It is urged by appellant that respondents ought to be now estopped from the fact that respondent Nels Owen was in attendance at court at the trial of the railroad company with Graves, and

that he gave testimony with regard to the value of the strip of land sought to be condemned. It appears from the evidence, however, and is conceded by the statement made to the court below by the counsel for appellant, that Graves' attorney in that case announced that Graves was not the owner of this particular lot, and that he made no demands for damages for its condemnation. Under such an announcement, we do not think that the respondent Nels Owen was under any obligation to intervene in the case, but he was justified in resting upon his constitutional right to be notified and have his day in court before his property should be taken from him. It is also claimed that respondents should be estopped from the fact that they knew of the location of this right of way, and permitted the railroad company to take possession. We do not think the evidence justifies this conclusion. It was no doubt known in the fall of 1891 that the railroad company would build its road through the city of Sultan, but there is nothing to show that the definite location of the line of the road was located or known to the citizens of that city.

We do not think that the court abused its discretion in allowing respondents to modify their complaint so as to show that the property was community property. This, under the circumstances of the case, was in furtherance of justice, and appellant was in no way injured by the change allowed. There was no attempt on the trial of the cause to prove the allegations of fraud and collusion made in the complaint, so that it appears to us, upon an examination of the whole record, that respondents entered into this agreement to purchase this lot in good faith; that they entered into possession of the same, and made valuable improvements upon it, and received title to the same, before the commencement of the condemnation proceedings; that they had no notice of such proceedings, were not in any way made parties thereto, had no opportunities to litigate their rights, and that appellant had actual notice of the title and ownership of respondents, and that therefore the respondents were in no way bound by the judgment rendered in the condemnation proceedings; that, as to them, such proceedings were actually void, and without effect, and that such judgment, therefore, was no defense to their action in ejectment. The judgment will therefore be affirmed, and the appellant will be allowed 30 days from the entering of this judgment to carry into effect the condemnation proceedings provided for in the judgment below; or, in other words, the conditions of said judgment will commence to run from the date of this judg ment.

HOYT, C. J., and SCOTT, ANDERS, and GORDON, JJ., concur.

(12 Wash. 331) BLUMENTHAL et al. v. PACIFIC MEAT CO.

(Supreme Court of Washington. July 17, 1895.) COMPLAINT AIDER BY ANSWER-APPEAL-ASSIGNMENT OF ERROR-JUDICIAL NOTICE.

1. A complaint which shows a breach of contract, and damage to plaintiff by the breach, is sufficient when attacked for the first time after

answer.

2. Witnesses will be held competent in the absence of an assignment of error raising the question of their competency.

3. Where, on suit for breach of contract of sale of cattle, the evidence shows the market price of cattle at another place than that named in the contract for delivery, judicial notice will be taken of the nearness of the two places to each other, so as to render evidence of the market price in the former evidence of what it was in the latter.

been a violation of a contract made by the appellant with the respondents, and that on account of such violation the respondents had been damaged.

As to the other question, after the introduction of proofs by the respective parties, the court instructed the jury as to the rules which should govern in its determination of the questions submitted to them. To these instructions no exceptions were taken, and it must follow that if the evidence was sufficient upon any theory which might be suggested, such verdict must stand. If exceptions had been taken to the instructions of the court, it might have been our duty to have gone into the evidence somewhat in detail to determine whether or not the theory upon which the cause was submitted to the

Action by I. Blumenthal and another against the Pacific Meat Company for breach of a contract of sale. From a judgment for Affirmed. plaintiffs, defendant appeals.

F. Campbell, for appellant. Burt J. Humphrey, Ellis De Bruler, and W. H. Jackson, for respondents.

HOYT, C. J. Respondents brought this action to recover damages for the alleged breach of a contract for the sale of neat cattle.

The answer of appellant contained certain denials, and set up certain facts by way of affirmative defense, which were denied by the reply. The trial resulted in a judgment for the plaintiffs, to reverse which this appeal has been prosecuted.

The appellant objected to the introduction of any evidence, for the alleged reason that the complaint did not state facts sufficient to constitute a cause of action. This objection was overruled, and such ruling furnishes the first ground upon which a reversal of the judgment is sought. A reversal is also sought upon the ground that the evidence was not sufficient to support the verdict. If the sufficiency of the complaint is to be determined by the same rules under the circumstances of this case as it would have been had it been seasonably attacked by a motion or demurrer, there would be some grounds for the contention that it was insufficient. But this is not the rule. A complaint seasonably attacked by motion or demurrer will be held to be insufficient if the facts are not so stated as to clearly show the right of the plaintiff to recover, and upon what particular theory or reason such right is founded. But, if tested after answer, it will be held to be sufficient if the facts stated will justify a recovery upon any theory upon which a right can be founded. Tested by the latter rule, the complaint was sufficient. Such facts were set out as to show that there had

having been found with the theory under which the cause was submitted to the jury, the only thing which we have to do is to see whether there was evidence which warranted the jury, upon the theory on which the cause was submitted, in finding for the plaintiffs. That the evidence was sufficient to warrant a verdict for the plaintiffs under the instructions given, upon the theory that the market price of the cattle had been shown, is conceded by the appellant, except that it is claimed by it that the witnesses who testified to such market price were not competent to so testify, and that the proof in relation thereto was as to the market value in Seattle, instead of in Puyallup, where the cattle were to be delivered. The witnesses must be held to have been competent, for the reason that the errors assigned do not raise the question of their competency. The court will take judicial notice of the distance between Seattle and Puyallup, and their relation to each other, from which it will be apparent that the market price for neat cattle would not be so different in the two places that evidence as to what it was in one would not be sufficient to show substantially what it was in the other,

Several other questions have been suggested in the brief of the appellant, but under the two alleged errors above stated, which are all that are contained in its brief, we are not called upon to say anything in reference thereto. That the cause was submitted to the jury upon proper issues and upon a theory warranted by the proofs must be conclusively presumed. for the reason that no exceptions were taken to the instructions; and we are of the opinion that the pleadings and proofs were sufficient to sustain the verdict rendered upon the issues and theory presented to the jury by such instructions. The judgment must be affirmed.

SCOTT. J., concurs. ANDERS, DUNBAR, and GORDON, JJ., concur in the result.