ard thereof must have been considered with reference to the location and environment of the community, as well as with reference to other sales of similar property. The testimony of persons acquainted with conditions in that community and having knowledge of sales made and prices paid for similar property was therefore competent, and its weight was for the jury to determine. The fact that the knowledge of the witness as to specific sales may have pertained to sales made a few months remote from the time of the seizure of this piano was a circumstance for the jury to consider in estimating the value of the testimony, but such fact did not render it incompetent. The witness said he knew the value, and gave his reasons for believing that he knew it. The weight of his testimony was therefore determinable by the amount of knowledge upon the subject he showed himself to possess. Birkel v. Chandler, 26 Wash. 241, 66 Pac. 406. "There is no rule of law, and there can be none, defining how much witness shall know of property before he can be permitted to give an opinion of its value. He must have some acquaintance with it, sufficient to enable him to form some estimate of its value, and then it is for the jury to determine how much weight to attach to such estimate." Bedell v. Railroad Co., 44 N. Y. 367, 370, 4 Am. Rep. 688.

It is next assigned that the court erred in denying appellant's motion that the jury be instructed to return a verdict for respondent for nominal damages only. This assignment is urged on the theory that there was no evidence as to the value of this piano, and that respondent could therefore recover no more than nominal damages. The witness Jaffe was asked the following question: "You may answer what in your judgment was an upright piano, stool and cover, standard make, and in first-class condition and in good tonewhat it would be worth in July last year in Nome, Alaska." His answer was, "I should judge about $750 in Nome." There can be no doubt that the witness intended the above valuation for this particular piano. He knew it was the subject of inquiry, and his further examination showed his familiarity with it. In any event. no objection was made to the question on the ground that it did not properly describe the property in question, and no motion was made to strike the answer for that reason. It was therefore properly before the jury, and under it respondent was entitled to recover more than nominal damages. The motion was properly denied.

The last assignment of error is that the motion for new trial was denied. The only suggestion made in the brief under this head involves the same questions which have already been discussed under the last assignment above.

The judgment is affirmed.

REAVIS, C. J., and FULLERTON, ANDERS, and MOUNT, JJ., concur.

(29 Wash. 124)

SCHWEDE et al. v. HEMRICH. (Supreme Court of Washington. July 15, 1902.) CONTRACT-BREACH-COMPULSORY NONSUIT

STAY OF PROCEEDINGS-APPEAL-EVI-
DENCE HARMLESS ERROR.

1. Where a compulsory nonsuit had been granted, it was not error to order a stay of proceedings in a new action between the same parties, involving the same subject-matter, until the judgment and costs in the former case had been paid.

2. An objection that an affirmative defense contradicts the denials theretofore introduced cannot be raised for the first time on appeal.

3. An offer of a deed showing title in plaintiff was properly rejected as immaterial where the answer admitted such ownership.

4. Where a witness was shown a plat, and asked if a certain lot came up to the meander line, an objection thereto was properly sustained, as the plat showed for itself.

5. An objection to a question asked of plaintiff as to what was said to defendant about holding him to his contract was properly sustained as leading and suggestive.

6. Where plaintiff had purchased a lot with reference to a certain plat, a copy thereof was admissible to show the location of the lot in connection with the shore line, although objected to on the ground that the parties who made it undertook to plat lands outside the meander line, to which they had no title.

7. Where the only objection to evidence was that it was immaterial or cumulative, as being in corroboration of a record already in evidence, its admission did not constitute reversible error. 8. A failure to prosecute an appeal from an adverse decision of the board of land commis sioners was not a breach of a contract to make an application to the proper state authorities to establish the preference right of another to purchase certain tide lands, in the absence of a specific provision in the contract that an appeal should be taken.

Appeal from superior court, King county; W. R. Bell, Judge.

Action by Ferdinand Schwede and another against Andrew Hemrich. From a judgment for defendant, plaintiffs appeal. Affirmed. H. E. Foster, for appellants. Sachs & Hale, for respondent.

HADLEY, J. Appellants brought this suit against respondent to recover damages alleged to be due by reason of breach of contract. On the 16th day of March, 1895, appellants were the owners of lot 5 in block 6 of Judkin's addition to the city of Seattle. The complaint alleges that said lot had a water frontage of 60 feet, and that it adjoined a certain tract of tide lands of the first class; that, by reason of the ownership and location of said lot, appellants had a preference right to purchase the tide lands immediately in front thereof; that such preference right extended over and included an area of 7.6 acres of tide lands; that said lands were susceptible of division into 30 lots, of the dimension of 60 feet by 120 feet each, exclusive of streets; that on the date above named, for a valuable consideration, appellants entered into a written contract with respondent whereby it was provided that respondent should make a proper application to the state of

1. See Costs, vol. 13, Cent. Dig. §§ 1048, 1049.

Washington for the purpose of establishing appellants' preference right to purchase said tide lands, and of having an award made in their favor, and deeds executed by said state conveying the same to appellants; that, by the terms of said contract, respondent was to prepare and do all things necessary to be done for the purpose of securing title to appellants for said lands; that, pursuant to the contract, and in behalf of appellants, respondent duly filed in the office of the commissioner of public lands an application to purchase the lands; that, in violation of his contract, respondent negligently and wrongfully failed to prosecute said application in a proper way, or give it proper attention; that, by reason of his default and neglect, respondent permitted the commissioner of public lands to make and enter an order on or about the 13th day of March, 1896, which recited that appellants were not the owners of the uplands abutting upon the tide lands described in said application; that, by reason of such negligent conduct on the part of respondent, said application was rejected, and a finding made against appellants; that respondent negligently refused to prosecute said matter to a final termination, as by his contract he was bound to do; that said tide lands were then of the reasonable value of $6,000, and judgment is demanded for that sum. The answer of respondent admits appellants' ownership of the upland lot hereinbefore described, and also that respondent filed in the office of the commissioner of public lands in behalf of appellants an application to pur chase certain tide lands therein described. Other allegations of the complaint are denied, except as admitted by the affirmative answer and defense. It is affirmatively averred that respondent, acting in pursuance of said contract, did, at the proper time and at his own expense, make application to the board of state land commissioners of the state of Washington to purchase all the tide lands in front of the city of Seattle, which appellants claimed the preference right to purchase by virtue of their ownership of the lot above described; that at his own expense he employed an attorney to appear before said board and represent appellants as such applicants, and to do and perform each and every act and thing necessary and legal to procure title to said lands; that said attorney did so appear, and did perform each and every thing proper and legal in attempting to procure an award to appellants of the preference right to purchase said lands; that said application was rejected by said board from no fault or negligence of respondent or his said attorney; that respondent did and performed all that was required of him by said contract. The affirmative answer is denied by the reply. The case was tried before a jury, and, at the conclusion of all the testimony, respondent's counsel challenged the sufficiency of the evidence introduced on the part of appellants, and moved the court to

take the case from the jury and render judgment in favor of respondent. The motion was granted, and judgment rendered accordingly, from which this appeal was taken.

The first assignment of error is that the court granted a motion made by respondent to stay proceedings in this cause until the judgment in another cause should be first paid and satisfied. It appears that a previous action had been brought by appellants against respondent in the same court, involving the same subject-matter. In that action a motion was made for an order of compulsory nonsuit, which was by the court granted; and judgment was entered against the plaintiffs in that action, who are the appellants here, for $23 costs. Before pleading in this case, respondent moved for a stay of proceedings until the judgment in the former case should be paid, which motion was granted. Thereupon appellants paid the former judg ment, after which this case proceeded. The action of the court in staying proceedings is now urged as error. It is contended that there is no statutory authority for such a stay of proceedings, and that in the absence of such authority the court is without power to enforce such an order. No such statute has been pointed out to us, and we are not aware that any such exists in this state. In the jurisdictions where this question has been considered, it does not appear to have been treated as a rule resting upon statutory authority, but rather as one which has been evolved with the growth of English and American jurisprudence as an orderly and wholesome rule of procedure to prevent the multiplicity of vexatious suits. In 23 Am. & Eng. Enc. Law (1st Ed.) p. 527, note 4, numerous English and American authorities are cited in support of the rule. We have examined and cite below cases from different jurisdictions, none of which appear to base their reasons for the rule upon statutory authority. The rule was early adopted in New York in Cuyler v. Vanderwerk, 1 Johns. Cas. 247, in a very brief opinion, and has been followed by numerous subsequent New York cases. For a collection of many New York cases, see note 4 on the page of the Encyclopædia cited above. See, also, Flemming v. Insurance Co., 4 Pa. 475; Gerrish v. Pratt, 6 Minn. 53 (Gil. 14); McIntosh v. Hoben, 11 Wis. 418; State v. Howe, 64 Ind. 18; Sooy v. McKean, 9 N. J. Law, 186; Robinson v. Transportation Co., 16 R. I. 217, 14 Atl. 860; Henderson v. Griffin, 5 Pet. 151, 8 L. Ed. 79. In Flemming v. Insurance Co., supra, the court, at page 477, says: "The practice of the courts in this respect is wholesome and beneficial, and often operates as a penalty by which individuals are protected from being harassed by a multiplicity of suits for the same cause of action." We believe the rule is both wholesome and just. It appears to have been the practice at common law. and, in the absence of a statute to the contrary, is a proper rule of procedure in this

state. We hold that the court did not err in granting the motion to stay proceedings. It is true, appellants paid these costs without seeking other relief than by way of exception to the order of the court; but, whatever may be said of procedure that might have been invoked, we have deemed it advisable to determine the matter upon its merits, since it is seriously urged here as error.

The second assignment of error is that respondent's answer is inconsistent, and it is alleged that the affirmative defense contradicts the denials theretofore introduced. Appellants did not, however, move for judgment upon the pleadings, and no objection appears to have been made to the answer by way of motion or demurrer in the court below. The affirmative answer undoubtedly states a defense to the cause of action set forth in the complaint, and objection to it cannot now be urged for the first time in this court.

It is assigned as error that the court rejected the following evidence offered by appellants: An offer of the deed showing title to the aforesaid lot 5 in appellants was rejected for the reason that the answer admitted them to be the owners. It was properly rejected as immaterial. A witness was asked whether, by the showing of an exhibit then handed him, said lot 5 comes up to the meander line. An objection was sustained for the reason that the plat showed for itself. This was not error. Questions were asked of one of the appellants as to what was said to respondent about holding him to his contract upon the action of the board of state land commissioners. An objection was sustained on the ground that the questions were leading and suggestive. They were clearly so, and the objections were properly sustained.

It is next assigned as error that the court admitted the following evidence: A copy of the original plat of the addition, including said lot 5, was offered in evidence by respondent. It was objected to on the ground that the parties who executed the plat undertook to plat lands outside of the meander line, and to which they had no title. The offer was made for the purpose of showing the location of lot 5 in connection with the shore line. It was properly admitted. Appellants had purchased the lot with reference to this plat. It was at least admissible in evidence for what it was worth, and for the purpose of showing what was in fact the original plat. If there were errors in the plat, they were explainable by other testimony. Respondent also offered evidence as to what proof of ownership in appellants as to said lot 5 was made before the board of state land commissioners. It was objected to on the ground that the record only is competent evidence upon the subject. Undoubtedly the record is the only competent evidence as to the application and as to the findings and judgment of the board, but it does not follow that the evidence upon which

the findings and judgment were based was necessarily a part of the record. A certified copy of the record introduced does not disclose the evidence. It is doubtful if this evidence became material here, since the ultimate action of the board was the essential thing. It must be presumed here that the findings and judgment were based upon competent and satisfactory evidence. The offered evidence was therefore no more than immaterial or cumulative, as being in corroboration of the record already in evidence, and its admission did not constitute reversible error.

It is last assigned that the court erred in granting respondent's challenge to the sufficiency of the evidence, and in withdrawing the case from the jury and entering judg ment for respondent. We think the action of the court was correct. The evidence showed, beyond question, that respondent had ful ly complied with the terms of the aforesaid contract, in causing application to be made to the proper state authorities to establish appellants' preference right to purchase the said tide lands, and that said application was prosecuted to a final determination before said board. The evidence also disclosed that the application was rejected on the ground that appellants were not the owners of the upland abutting upon the tide lands sought to be purchased. They were the owners of said lot 5, it is true; but it appears that the board found that said lot does not abut upon the meander line, and that other upland in fact lies between said lot and the inner line of the tide lands. It is urged as a breach of the contract that respondent did not cause an appeal from the decision of the board to be prosecuted. There is considerable evidence in the record upon that subject. Under the evidence, it is very probable that the failure to appeal was due to appellants' neglect to deliver to respondent's attorney the mailed notice from the board showing the date of the entry of the findings and judgment, and also the time within which an appeal could be taken, until it was too late to perfect an appeal. However, if that were material, it probably should have been submitted to the jury. But we do not think it became material under the contract. The contract did not provide for an appeal. We do not think it can be held that respondent was bound to incur the expense of an appeal to the superior court, and then to this court, in the absence of some provision in the contract clearly indicating that such was the intention of the parties. It contains no such provision. It simply provides that application shall be made at the office of the commissioner of public lands, and that respondent "will perform all conditions necessary and requisite in completing the title to said property at his own individual cost and expense, including the cost of appraisement and purchase of said land, attorney's fees," etc. Nothing whatever is said of any further

obligation upon respondent than to prosecute an application before the proper state authorities, with whom rested the primary duty of hearing it, and the power of determining appellants' rights thereunder. While there may be a sort of unwritten rule in this new state to prosecute controversies to tribunals of the last resort, yet there is no law imposing upon litigants a duty to do so, and we think a contract of the nature here under consideration cannot be held to impose such duty unless it specifically and clearly states that such was intended. The evidence clearly showed a compliance with the contract, and there was no breach upon which to found a verdict and judgment for damages.

We think the court did not err in withdrawing the case from the jury and entering judgment for respondent. The judgment is affirmed.

REAVIS, C. J., and ANDERS, MOUNT, and FULLERTON, JJ., concur.

(29 Wash. 78)

CARR v. JONES.

(Supreme Court of Washington. July 9, 1902.) RECOVERING PAID NOTE-PAROL EVIDENCEAMBIGUITY IN NOTE-WITNESS-PARTY IN INTEREST LEGAL REDUCTION OF TAXBURDEN OF PROOF-HARMLESS ERROR.

1. The maker of a note which has been paid may maintain an action to recover its possession.

2. A note by which a promise is made to pay $240 in case taxes on personal property are not rebated before a certain time, "or such part of the above sum as may not be rebated," is ambiguous, so as to admit of evidence in explanation that the taxes amounted to $842, and that no part of the note was to be paid if as much as $240 was rebated.

3. Stockholders in a bank, in no way liable on or on account of a note given by another stockholder to deceased on the sale to him by the bank of personal property, payable if taxes on the property be not rebated, are not, in an action to recover the note of the executor, parties in interest, within 2 Ballinger's Ann. Codes & St. § 5991, precluding a party in interest from testifying to a transaction by him with, or statement to him by, deceased, as against his representative.

4. Plaintiff in an action to recover a note payable if certain taxes be not rebated, having shown that the treasurer had accepted from defendant a reduced sum for the taxes, and receipted in full therefor, which settlement was accepted and acted on by defendant, the latter has the burden of showing that the treasurer was not legally authorized to accept the reduced sum in cancellation of the whole tax.

5. Any error in allowing plaintiff to introduce evidence to show that a reduction in taxes was legally authorized, when the burden of proof was on defendant to show that it was unauthorized, and he gave no evidence, is harmless.

Appeal from superior court, Chehalis county; O. V. Linn, Judge.

Action by F. L. Carr against Owen Jones, executor of G. W. Hertges, deceased. Judgment for plaintiff. Defendant appeals. Affirmed.

1. See Bills and Notes, vol. 7, Cent. Dig. § 1260.

J. A. Hutcheson and Greene & Griffiths, for appellant. Geo. D. Schofield and J. B. Bridges, for respondent.

HADLEY, J. Appellant is the executor of the estate of G. W. Hertges, deceased. Respondent is maintaining this suit against appellant to recover possession of a certain promissory note or written obligation, of which the following is a copy: "Bank of Montesano. Montesano, Wash., Feb'y 15, 1897. On or before May 15, 1897, I promise to pay to G. W. Hertges or order two hundred and forty dollars for the a/c Bank of Montesano, Montesano, Wash. Value received. Payable in case taxes on Bank of Montesano personal property are not rebated on or before that time, or such part of the above sum as may not be rebated on or before that date. F. L. Carr." The amended complaint alleges that on or about the 15th day of February, 1897, respondent was a stockholder and a member of the board of directors of the Bank of Montesano, a corporation doing business in Montesano, Chehalis county, Wash., and that on or about that date the said bank made a sale of a portion of its assets to said Hertges in consideration of his assuming certain liabilities due from said bank to its creditors; that among the liabilities of said bank was an item of personal property taxes for the year 1895, then due, in the aggregate sum of $842.78; that the said item made the liabilities assumed by Hertges exceed the amount of assets purchased by him in the sum of $240, and that said note in question was made by respondent to said Hertges as a guaranty that said item of taxes would be rebated by the board of county commissioners, on account of excessive taxation, in at least the sum of $240, and so that the assets received by him in said sale would equal the liabilities assumed by him; that, in case no rebate of said taxes was secured, then respondent was to be liable upon said note in the amount of the face thereof, but that it was then and there agreed between respondent and said Hertges that, should said personal property taxes for said year be rebated in the sum of $240, then said note was to be returned to respondent, and the same was given and received as a guaranty only that said taxes would be rebated in at least said amount; that after the making of the note, and prior to its maturity, the taxes were duly rebated by the board of county commissioners of said county and by the city council of Montesano in such manner and form as to reduce the said sum of $842.78 by more than $240, and that said reduction constituted the happening of the event whereby respondent was entitled to a surrender of said note; that said taxes were reduced in such an amount and were liquidated for such a sum, less than the original amount, as to save said Hertges harmless upon said purchase of assets, and so as to bring the liabilities assumed by him as afore

said within the aggregate amount of assets received by him in said sale; that respondent is now the owner of the note, and is lawfully entitled to its possession, but that the same is wrongfully detained from him by appellant; that the note has no actual val, save and except that upon its face it purports to be an item of indebtedness against respondent; that respondent has demanded the surrender of the note, which has at all times been refused. Judgment is prayed for the face amount thereof in case a delivery cannot be had. The answer admits the execution of the note as above set out, but denies generally other material allegations of the complaint. It also contains an affirmative defense, which is denominated a "counterclaim," in which it is alleged that said note was given to save said Hertges harmless from the whole of the unpaid taxes against the bank; that when the note matured there was due and unpaid of taxes against the bank more than the sum of $240, which has never been paid by respondent, or by any one in his behalf; and judgment is demanded against respondent for said sum, with interest on the note. The cause was tried by the court without a jury, and judgment rendered in favor of respondent, from which this appeal was taken.

It is assigned as error that the court overruled the demurrer to the amended complaint. The only point suggested under this assignment is that according to the complaint the note was paid, and was therefore valueless. Appellant submits that there is no affirmative remedy to recover such valueless paper. We think the point is not well taken. When an outstanding note has been paid, it is not only the right of the maker to have possession thereof, but it is a duty he owes to himself and others to secure control of it, and thus prevent any possibility that it may, by mistake or otherwise, pass into the hands of a purchaser. Timely care in the exercise of such right may prevent subsequent troublesome litigation. The demurrer was properly overruled.

It is next assigned that the court erred in admitting evidence to vary and contradict the terms of the note. The evidence referred to related to what was intended by the language of the note and by the parties, as alleged in the complaint. The court expressly stated that the evidence was not admitted to vary the terms of the instrument, but for the purpose of explaining what was intended by the writing. It was the view of the court that the language used in the note was ambiguous, by reason of the use of the words "or such part of the above sum as may not be rebated," without stating to what the words "above sum" related. The court held that parol evidence was necessary to explain whether said words related to the sum mentioned as the amount of the obligation of the note, or to the amount of taxes referred to therein. Standing alone and unexplained, the

note, in the respect mentioned, it seems to us, is indefinite and uncertain, and is easily susceptible of two constructions. It was therefore proper to admit oral testimony to explain the terms of the note in the light of the intention of the parties when it was made. Appellant urges the well-known rule that parol evidence is inadmissible to contradiet or vary the terms of a valid written instrument, and the authorities cited are to that point. The rule is probably one of universal application. The writing cannot be contradicted or varied by parol evidence, and when its meaning is unmistakable no parol testimony is needed or proper. But when the language is such as renders its meaning doubtful, resort must be had to other testimony in order to ascertain the meaning and intent of the parties by the language used. Such evidence is restricted to the interpretation of the language used, and its only purpose is to enable the court or jury to determine what the language really means. Whart. Ev. § 937, and cases cited. We think the court did not err in admitting the testimony for the purpose for which it was received and considered in this case.

It is next assigned that the court erred in admitting the testimony of respondent and other witnesses on the ground that the payee of the note is dead, that appellant is his executor, and that the witnesses are interested in the controversy. It is urged that the testimony was admitted in violation of the provisions of section 5991, 2 Ballinger's Ann. Codes & St., which precludes a party in interest or to the record from testifying as to any transaction had by him with, or any statement made to him by, a deceased person, when the adverse party sues or defends as executor, administrator, or legal representative of such deceased person. The testimony of respondent himself as to such transactions and statements was all stricken by the court, and was not considered, which cured any error as to any of respondent's own testimony. Other witnesses testified as to the transaction and as to statements made by the deceased. These witnesses were stockholders or directors of said bank at the time the aforesaid sale of assets was made. They were interested, no doubt, to see that the sale was made; but they were in no way parties to the note given by respondent, and assumed no liability thereon. That was respondent's individual obligation only, and was a transaction between him and the deceased alone. The evidence shows that any consideration which may have existed between respondent and the witnesses in relation to the note had already passed, and that respondent assumed the obligation absolutely as his own. The witnesses have no financial interest in the result of this litigation one way or the other. The mere fact that respondent assumed the obligation of this note, whatever may be the meaning of its terms, was mutually treated by respondent and the witnesses as a cancellation of