(12 Wash. 326)

ROBERTSON v. WOOLLEY et al. (Supreme Court of Washington. July 17, 1895.) ASSUMPSIT-PLEADING-VENDOR AND PURCHASER -RECOVERY OF PRICE PAID.

1. The complaint, in an action to recover the balance due for work performed, need not allege a demand.

2. Where the vendor refuses to execute a bond for a conveyance, as required by the contract of sale, the vender does not, by failure to rescind the contract within a reasonable time, waive his right to recover the purchase price paid.

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

Action by W. D. Robertson against P. A. Woolley and others, partners as the Skagit River Lumber & Shingle Company. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Metcalfe & Jurey, for appellants. Sinclair & Smith, for respondent.

DUNBAR, J. The respondent, Robertson, brought his action below against the appellants on two counts. The first was for the sum of $315.25, with interest from the 6th day of March, 1892, at the rate of 10 per cent. per annum, for work performed for and at the special instance and request of the appellants. The second cause of action alleges that the respondent's wife, Sarah J. Robertson, entered into a contract with the appellants to buy certain lots in the town of Woolley, Skagit county, Wash. The contract was that the said Sarah J. Robertson was to pay to the appellants $500 for said lots, $100 to be paid down and the other $400 to be paid at the end of a year; that a deed was to be made for said lots; and that the appellants agreed, upon the payment of $100, to execute a bond for the making of said deed; that the appellants had refused to comply with their contract, and refused to execute the bond; and that the demand had been made for the return of the $100; and an assignment of said claim had been made to the respondent. The defendant P. L. Woolley separately answered, denying that he was a member of the partnership sued. The other defendants answered, denying that the labor performed by the plaintiff was performed as alleged in the complaint; and for an affirmative answer, in substance, claimed that, under the agreement which they made, the appellants were to furnish, sell, and deliver to respondent, on account of a reasonable value, certain goods, wares, and merchandise, provisions, and supplies, as should be requested by the respondent, necessary for the support of himself and family while in the employ of the appellants, and also to furnish him certain lumber and materials, such as should be requested, for the improvement of said real property; and, under and by which said agreement, the respondent agreed to perform

work and labor, at the usual and reasonable sum per day, in payment of the balance of the purchase price of the said real property, and also in payment of such goods, wares, and merchandise to be furnished under and by said agreement; that, on or about the 10th day of July, 1890, in pursuance of said agreement, and at the special instance and request of the respondent, they caused to be executed and delivered to the said Sarah J. Robertson, wife of the respondent, a good and sufficient bond for a deed to said real property; that the bond for a deed was executed and delivered to said Sarah J. Robertson, and taken by her in her name for the convenience of the respondent, and in trust for him, and for no other purpose. They alleged the furnishing of the goods and lumber to the amount of $761.89; admitted the reasonable value of the work to be $914.75; and alleged the nonpayment of the sum of $500, excepting the cash payment; and demanded a balance in the sum of $226 on the general account, with interest from the 5th day of March, 1892, at the legal rate; alleged that they caused a good and sufficient deed of conveyance to be duly executed on the 2d day of April, 1892, which they filed with their answer to the original complaint (the cause being tried under an amended complaint). Upon the issues made by the pleadings the case went to trial, and a verdict was rendered in favor of the respondent for $512.80.

The first contention of the appellants is that the statement of the first cause of action does not state facts sufficient to constitute a cause of action, for the reason that the allegations thereof show the first cause of ac-tion is to recover an alleged balance due upon their mutual current account, and it is not alleged that any demand for the payment of the balance was ever made. We do not think the complaint is properly subject to this criticism, as it does not show a mutual current account for which any demand was necessary. It alleges in terms an amount of money due.

The other contention, that the purchase money was waived by the failure to claim the rescission within a reasonable time, we do not think can be sustained. According to the testimony of the respondent, which the jury from their verdict evidently believed, the payment of $100 was made, and the appellants came into possession of that amount of money of the respondent, upon a contract to do certain things, which they refused to do. They refused to proceed any further or make the contract, according to the agreement; and there was nothing to rescind, and, upon such refusal, respondent was entitled to the money advanced.

Many questions which are raised by the appellants in this case are settled by the verdict of the jury. According to the testimony of the respondent, the appellants in

sisted upon changing the agreement. He testifies that, under the agreement, he was to have a year within which to pay the $400, and that, when the appellants proffered the bond, the condition incorporated was that it was to be paid within six months, and that the respondent thereupon refused to enter into such contract, and the appellants re fused to comply with the agreement. This testimony is contradicted by the appellants, and flatly contradicted. But it was the province of the jury to determine the truth of the matter in issue by the testimony of the witnesses, and they have determined that question in favor of the contention of the respondent.

The other proposition, viz. that P. L. Woolley was not a member of the corporation, has also been determined by the same tribunal. We do not agree with the appellants that there was no testimony tending to show that he was a partner. The fact that he was a bookkeeper for several years in the concern; that he admits that he was a partner in the store business; that the business of the store and the business of the partnership were intimately connected; that they had the same bookkeeper and secretary; that their business was transacted in the same office, and that the same books were used; the further fact that the billheads which were used, and upon which the respondent's account was made, had described P. L. Woolley as one of the members of the corporation, and the secretary of the same; that these billheads were used for about three years; the statements of members of the corporation, which were sworn to by the respondent, and other circumstances testified to,-were tangible testimony tending to show that P. L. Woolley was a member of this corporation; and, while the testimony may not be sufficient to convince this court that such was the case, there was sufficient testimony before the jury to sustain their verdict.

Several instructions are discussed in appellants' brief; but the record shows that there was no exception to any instruction except the instruction that there was no evidence that would entitle the defendants to recover any amount under the pleadings. The others were the general exceptions, which this court has so often held did not amount to an exception under the law. This instruction, we think, under the testimony, was correct.

The appellants insist that whether or not they should recover was a question of fact, which should have been submitted to the jury; but, under the pleadings in this case, there was no question of fact submitted to the jury, and no proof offered, upon which a Judgment for defendants could have been sustained. The answer alleged that the agree ment was that the plaintiff was to pay for the lots in work and labor, and no proof at all was introduced to show that the plaintiff refused to continue to perform work and V.41P.no.1-4

labor in payment of these lots. We think the jury were not misled by the instructions of the court, and the judgment will therefore be affirmed.

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

(12 Wash. 342)

FLINT et al. v. LONG et al. (Supreme Court of Washington. July 17, 1895.) ADVERSE POSSESSION-COLOR OF TITLE.

1. One who purchases land under a deed of certain lots as platted obtains color of title to lots staked off as such lots, though in fact they are not the lots called for by the plat.

2. A purchaser of a city lot built a fence around three sides of it, the lot being inaccessible from the fourth side, due to the roughness of the ground; cleared it of brush and timber, a considerable quantity of which was on it and the surrounding lots, and planted shrubbery thereon. Held, that his possession was sufficiently open to constitute adverse possession.

Appeal from superior court, King county; R. Osborn, Judge.

Action by Thomas Flint and another against Franklin P. Long and another. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

Preston & Albertson, for appellants. Greene & Turner, for respondents.

DUNBAR, J. The plaintiffs and defendants in this case derive their respective claims of title from a common source, namely, one D. T. Wheeler and his wife. The land in controversy is a part of the tract of "thirty acres off from the south side of the east 120 acres of what is known as the 'C. D. Boren Donation Claim'" in the city of Seattle, of which D. T. Wheeler and wife were on the 7th day of December, 1870, seised and possessed in fee simple. Wheeler and wife, on the 10th day of December, 1870, being still the owners of a certain 5 acres of said 30 acres, in which tract of 5 acres is included the parcel now in dispute, conveyed said 5 acres to one Benjamin Flint, which Flint afterwards duly conveyed to appellants. The record shows that said Wheeler and wife, on December 7, 1870, conveyed 10 acres out of the 30 acres above mentioned to one John Lawler and Margaret Kollock in undivided interests, and that this 10 acres was, on April 10, 1882, partitioned in severalty between these grantees. This 10 acres abuts on the west boundary of the 5 acres deeded to appellants, and does not overlap any part of the latter according to the description in the respective deeds. Lawler, however, in platting his part of the said 10 acres, staked it out on the ground, not according to the description of his deeds, but so as to include the west 102 feet of the 5 acres owned by appellants. The land in controversy is a part of this strip of 102 feet, and

corresponds with lots 5 and 6 of block 4 of Lawler's addition, as the same were actually staked out on the ground. The description in the paper plat, however, follows the description of the Lawler deeds, and does not purport to cover any part of said strip of 102 feet. The respondent Long became the purchaser of lots 5 and 6 of block 4 of Lawler's addition, so that the question is, who is entitled to the parcel in dispute by reason of these conveyances? At least that would be the question if there was not any question of the statute of limitations in the case. Mary Monasmith is the tenant of respondent Franklin P. Long herein, and was made a party to this action, which is an action in ejectment. The defense of adverse possession for 10 years prior to the commencement of the suit under said alleged color of title was set up by the respondents, and the view we take of this issue renders unnecessary the discussion of any other propositions. Conceding the necessity, under the provisions of our statute, to show color of title on the part of the respondent in this case,-a question upon which we do not now pass,-it seems to us that such color of title was fairly shown. All that is necessary to be shown is that there was a proof or colorable title under which the entry or claim has been made in good faith. The land in question was purchased by the respondents, and the platting on file merely represented the lots as staked out upon the ground; and a deed to certain lots purporting to convey land actually staked out upon the face of the earth to correspond with the deed would certainly be a purchase, and an entry thereunder, if such entry was made in good faith. It is but a prudent practice, and certainly a common one, when people are buying lots, to view the lots as actually staked out upon the face of the earth. Devlin, Deeds, § 1022, p. 336, says: "The words on the face of a map of a town 'as laid out' by a certain person, are equivalent to 'as surveyed' by him, and embrace a reference to the monuments placed on the land by the surveyor." So that the pertinent question in this case is: Has there been an open, notorious, undisputed, and adverse possession of the land in controversy by the respondent and his grantors for 10 years immediately preceding the commencement of this action? The court who tried the cause found as a fact that the defendant Franklin P. Long and his grantors have been in actual, open, notorious, and exclusive possession adverse to the plaintiffs, and each of them, of every part and parcel of the land in question from and ever since the 23d day of May, 1883, until the day of the hearing and trial, under color and claim of title adverse to the plaintiffs. This action was commenced August 10, 1893. A careful investigation of all the testimony in this case leads us to the conclusion that the court was warranted in such finding. The testimony is too long and too much diversified to specially refer to it, but we do not think that

we shall have to go to the extent that we did in Land Co. v. Dibble, 4 Wash. 767, 31 Pac. 30, to sustain this finding. It is true, there is some conflict in the testimony, and parties were introduced to testify that they had been upon these lands at the time testified to by the defendants' witnesses, and that such improvements as they testified to did not exist; but the parties who had procured these improvements made, and had paid for them, and witnesses who made some of the improvements, testified in regard to the making of them, and to the time of the making of them. It appears from the testimony that during the winter of 1882 and the early spring of 1883,-shortly after the purchase of these lots by Mrs. Malson,-that she employed a man to clear the same; that he went upon the lots, cut down the timber that yet remained standing upon them, cut down the brush,of which it seems there was an abundance on the lots, and cleared the lots off, planting in the month of February a considerable portion of it to shrubbery; and that he built a rude fence around three sides of the land in dispute (testimony showing that the other side was inaccessible to stock on account of its roughness); and from the character of work which was shown by these witnesses to have been done upon this land the face and appearance of the ground must have been completely changed, so that notice would have been given to any one who saw the land that possession had been taken of the same, and improvements made thereon, which improvements would be inconsistent with any other theory than the theory of possession and ownership. Shortly after this, and, according to the testimony, about the 1st of September, 1883, a house was built upon this land, which house has been occupied by the respondent and his grantor or their tenants practically ever since it was built. It is true that this house was not a very pretentious one, being a board house, with the boards running up and down, and a shingle roof, and, as the man testified who built it, from 20 to 24 feet long; but, unpretentious as it was, it has been occupied all this time by families consisting of women and children, and the testimony is undisputed that since the fall of 1886 it has been occupied continuously by Mrs. Monasmith and her family, and that she has paid the rent, which, from the testimony, appears to have been from two to four dollars per month, to the respondent, or his agent, Mrs. Ross. If the testimony of the witnesses for the defense be true, the possession in this case has not been of a doubtful character, but has been open and notorious, and the improvements made substantial; and while, as we before said, there is some conflict as to when the first improvements were made,-namely, the clearing and the setting out of the shrubbery,—yet, from a perusal of this testimony, we are not prepared to say that the judge, who saw the witnesses and heard them testify, was not

justified in reaching the conclusion which he did. The judgment will therefore be affirmed.

SCOTT, ANDERS, and GORDON, JJ., con

cur.

(12 Wash. 319)

STATE v. ROBINSON.1 (Supreme Court of Washington. July 17, 1895.) MURDER-ACCESSORY-CONVICTION OF MAN

SLAUGHTER.

One charged with murder as an accessory before the fact cannot be convicted of manslaughter, he not having been present at the time of the killing.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

William Robinson was convicted of manslaughter, and appeals. Reversed.

Geo. A. Allen and Alex. Akerman, for appellant. J. W. Heffner (A. W. Hawks, of counsel), for the State.

GORDON, J. Appellant was tried in the superior court of Snohomish county, upon an information charging him with the crime of murder in the first degree, for the killing of George Schultz on the 22d day of December, 1892. A verdict of manslaughter was returned by the jury, and, a motion for a new trial having been overruled, appellant was sentenced to imprisonment in the penitentiary for the term of 18 years. The case comes to this court upon his appeal from the judgment of conviction.

The record discloses that upon the trial below no attempt was made by the state to show that appellant was present at the time and place of the killing. On the contrary, it is conceded that at the time the homicide was committed appellant was serving as a juror in the superior court of the county, at the city of Snohomish, distant some 10 or 11 miles from the place where the homicide was committed. And the proof upon the part of the state was confined to an attempt to show that appellant had conspired with James Robinson, George Robinson, John White, and John Livingstone to commit the crime, and that the killing was done by George Robinson and John Livingstone in pursuance of such conspiracy; the theory of the state being that the appellant was an accessory before the fact. 2 Hill's Code, § 1189, provides: "No distinction shall exist between an accessory before the fact and a principal, or between principals in the first and second degree, and all persons concerned in the commission of an offense, whether they directly counsel the act constituting the offense, or counsel, aid, and abet in its commission, though not present, shall hereafter be indicted, tried and punished as principals." It is conceded by appellant's counsel that the evidence was insufficient to justify the conviction of manslaughter; and we

think this contention must be upheld. It was conceded by the learned counsel for the state, upon the argument of the cause in this court, that, if the information charged no higher offense than manslaughter, the evidence introduced would be incompetent to establish such crime. But he earnestly contends that inasmuch as the crime of murder in the first degree is charged in the information in which the lesser offense of manslaughter is necessarily included, and inasmuch as the evidence was competent in support of the charge of murder, it was within the province of the jury, under section 1319, 2 Hill's Code, to find the defendant not guilty of the degree charged in the information, and guilty of any degree inferior thereto. But with this contention we cannot agree. We think that section 1319, supra, contains but the usual provisions in force in all or nearly all of the states, and we have been cited to no case, nor have we found one, in which a conviction for manslaughter has been sustained under circumstances similar to those disclosed by the record here. "The offense of manslaughter, from its legal character, excludes the possibility of an accessory before the fact as an element in its composition." Jones v. State, 13 Tex. 168; Bowman v. State (Tex. Cr. App.) 20 S. W. 558; Boyd v. State, 17 Ga. 194. Conspiring with another to kill a human being necessarily involves malice, whereas manslaughter is the "unlawful killing without malice," and does not admit of preconcerted design. The only offense which the evidence in this case tended to establish was murder in either the first or second degree, and the verdict which found appellant guilty of manslaughter was farcical and “contrary to law and the evidence." It was the duty of the jury, if they entertained a reasonable doubt of the appellant's guilt of the only crime which the evidence tended to prove, tc acquit, and "not compromise with that doubt by finding him guilty of a lower grade of offense." State v. Mahly, 68 Mo. 315. The theory of manslaughter is unsupported by any evidence whatever; and, such being the case, it was improper to instruct the jury that they might find the appellant guilty of manslaughter. State v. Cole (Iowa) 17 N. W. 183; Dickerson v. State (Wis.) 4 N. W. 321; State v. Cantieny, 34 Minn. 1, 24 N. W. 458; Foster v. People, 50 N. Y. 598. In Boyd v. State, supra, the court say: "Here the pleadings, it is true, put in issue the crime of manslaughter; for the indictment, being for murder, put in issue, not only that offense, but every lower grade of homicide also, just as though there were a separate count for each. But, the evidence introduced going to the crime of murder only, all the minor grades of homicide, although contained in the true bill, were nevertheless withdrawn, or dropped for want of proof, in the issue finally submitted to the jury." Such we think is the present case. The evidence, while proy

er to be passed upon by a jury in connection with the charge of murder in the first degree, became legally incompetent when considered with reference to the charge of manslaughter, a charge which admits of no accessories before the fact. The case of State v. Grier, 39 Pac. 874, decided by this court on February 20, 1895, does not support the position of counsel for the state. The question presented here was not involved in the decision of that case, and there is a marked distinction between the cases. The indictment in the case of State v. Grier was for murder in the first degree, in administering poison to the deceased. The conviction was for a lesser degree. None of the evidence upon the trial was brought to this court by bill of exceptions or statement of facts, the contention being that under the indictment a conviction could only be had of murder in the first degree. In the absence of the evidence or any sufficient statement of the circumstances relied upon for a conviction in that case, this court was unable to say that circumstances might not exist which would justify a conviction under the indictment for homicide in one of the lesser degrees. For instance, if the poison had been administered under circumstances amounting to criminal negligence, a conviction might properly follow for manslaughter. Here, however, the facts and circumstances relied upon for a conviction are not in dispute, and we think that the distinction between the cases is apparent. The legal effect of the verdict in this case acquits the defendant of the higher degrees of homicide, and, having concluded that the evidence is insufficient to justify a conviction for manslaughter, the judgment will be reversed, and the cause re manded, with instructions to discharge the appellant.

ANDERS and DUNBAR, JJ., concur.

(12 Wash. 461)

STATE v. FEAMSTER. (Supreme Court of Washington. July 27, 1895.) ASSAULT WITH INTENT TO KILL-SUFFICIENCY OF INDICTMENT-MOTION IN ARREST OF JUDGMENT-TIME TO MAKE.

1. The objection that a motion in arrest of judgment was made too late cannot be raised for the first time on appeal.

2. A motion in arrest of judgment on the ground that the information does not charge a crime may be made after two trials, in one of which the jury disagreed.

3. An information for assault with intent to kill, which alleges that defendant attempted to kill one T. with a pistol, sufficiently shows that defendant committed an assault on T.

Appeal from superior court, Yakima county; Carroll B. Graves, Judge.

William Feamster was convicted of an assault with intent to murder. A motion in

arrest of judgment was granted, and the state appeals. Reversed.

Ira P. Englehart, Pros. Atty., J. A. Rochford, and Jones & Newman, for the State. H. J. Sniveley, Fred Miller, and W. F. Butcher, for respondent.

ANDERS, J. The respondent was twice tried for an assault with intent to commit murder, on an information the body of which is as follows: "Comes now J. A. Rochford, prosecuting attorney of Yakima county, state of Washington, and by this information accuses William Feamster of the crime of assault with intent to commit murder, committed as follows: He, the said William Feamster, on the 24th day of November, 1894, A. D., in the county of Yakima, state of Washington, then and there being, did then and there attempt in a rude, insolent, and angry manner, coupled with the presentability to carry into execution such attempt, unlawfully, feloniously, purposely, and of his deliberate and premeditated malice, to kill one H. L. Tucker with a deadly weapon, to wit, with a pistol (revolver), which he, the said William Feamster, then and there had and held in his hand, with intent then and there and thereby to unlawfully, feloniously, purposely, and of his deliberate and premeditated malice to kill and murder the said H. L. Tucker." On the first trial the jury failed to agree, but upon the second a verdict of guilty as charged was returned. A motion for a new trial having been overruled, the defendant moved in arrest of judgment on the ground that the information did not state facts sufficient to constitute a crime. This motion was sustained by the court, and, the prosecuting attorney having elected to stand upon the information, the defendant was discharged, whereupon the state, by its counsel, appealed. The first point made by appellant is that the motion in arrest of judgment was not seasonably made. It is insisted that after the defendant had gone into two trials on the merits without objection it was too late to object to the information on the ground of insufficiency. But there are two insuperable objections to this proposition. The first is that the question was not called to the attention of the court below, and cannot be presented for the first time here; and the second is that, as a matter of fact, the motion was timely made. No motion in arrest of judgment can properly be interposed until after a verdict, for the reason that the only judgment which can be arrested upon such motion is a judgment on the verdict of the jury. The motion could not have been made at an earlier stage of the proceedings, and it necessarily follows that it was made in time.

We now come to the consideration of the vital and decisive question in the case, which is, does the information state facts sufficient to constitute a crime? If it does not, the