Jan. 1893.] Dissenting Opinion - DUNBAR, C. J. Company, consigned to a particular point, viz., Olympia. The law obliges that company to become responsible for their carriage to that place, because it had received the pay for the through transportation. Consequently, according to the text, the Union, the Northern and the Port Townsend Southern were the agents of the Burlington Company. "When goods are sent, not according to the contract. with the owner, but by some other route, there is no lien for freight money;" and if the goods are withheld under a claim of lien, an action of trover will lie for the value. Marsh v. Union Pacific R. R. Co., 9 Fed. Rep. 873. The connecting carrier by receiving the goods from the contracting carrier, becomes its agent for the purpose of completing the contract with its shipper." Halliday v. St. L., etc., Ry. Co., 74 Mo. 159. To the same effect: Fitch v. Newberry, 1 Doug. (Mich.) 1; Buskirk v. Purington, 2 Hall, 561; Robinson v. Baker, 5 Cush. 137. If a bill of lading or way bill accompanying the goods shows that the freight has been paid wholly or in part for the through route, the succeeding carriers would be affected with knowledge of such payment, for if they consult the bill of lading they will have actual knowledge, and if they do not consult it they may be regarded as guilty of negligence and constructively affected with knowledge of what the bill of lading actually shows. 1 Jones on Liens, § 297. This was the view the court took of the law in this case, both in sustaining objections to the testimony offered and in its instructions to the jury. Most of the cases cited by the majority base their arguments upon the theory that transportation companies are compelled to receive and forward freight. If that were so, then there would be some equity and justice in holding that they would have a lien for their services in any event. But such is not the law. If a connecting company is not satisfied with the responsibility of the company which has Opinion of the Court-SCOTT, J. [5 Wash. the goods in charge, in the first instance, it can demand its pay in advance, and if it is not paid it need not carry the goods. The law on that subject is well settled. In my judgment there was no error committed in the trial of this cause, and the judgment should be affirmed. [No. 470. Decided January 31, 1893.] W. D. LYTS, Appellant, v. MONROE KEEVEY, Re Proof of an illegal consideration for a promissory note cannot be made under an allegation of no consideration, but the facts showing illegality must be pleaded. An error in the admission of testimony will be cured by an instruction withdrawing it from the consideration of the jury. Although the ground upon which the trial court has excluded testimony may have been an improper one, yet if any good reason exists for its exclusion, the action of the court will be sustained. An instruction to the jury that, "if you should be satisfied that any witness has knowingly testified falsely in any material matter in this cause, you have a right to reject the whole of the testimony of such witness, unless on any point such testimony was corroborated by other unimpeached testimony," is not erroneous, although not aptly expressed on the subject of corroboration. Appeal from Superior Court, King County. Stratton, Lewis & Gilman, for appellant. The opinion of the court was delivered by SCOTT, J.-The appellant brought an action against the respondent to recover the balance due upon an account Jan. 1893.] Opinion of the Court-SCOTT, J. amounting to $289. The respondent denied the account, and pleaded several causes of action by way of a counter claim, one being for the amount due on a certain alleged promissory note for $500 executed by the appellant to respondent. A trial was had which resulted in a verdict for the defendant in the sum of $605.82. Certain testi Appellant alleges three grounds of error. mony was admitted upon the trial against the objections of the plaintiff, and this testimony was subsequently excluded from the consideration of the jury in an instruction which the court gave at the plaintiff's request. Notwithstanding this instruction, appellant claims that this evidence prejudiced the jury, and that by reason thereof he did not get a fair trial, and that the verdict should have been set aside. The testimony complained of was in reference to rents for certain lands which the defendant had conveyed to the plaintiff some time previously. The defendant claimed that he had conveyed these lands to the plaintiff in order to prevent their being seized by his creditors. That he did this upon the advice and at the request of the plaintiff, and he sought to recover of him for the use and occupation of this land after it had been so conveyed. When the cause was submitted to the jury, the court properly instructed them that the defendant was not entitled to recover from the plaintiff anything for the use and occupation of this land while the plaintiff held the same under and by virtue of the deed which the defendant had given him. We are not disposed to adopt the rule that evidence improperly admitted cannot be counteracted in the subsequent course of the trial, and that the same should entitle the objecting party to a new trial in all cases. Evidently the plaintiff thought an instruction directing the jury to disregard this testimony would prevent its having any prejudicial effect, or he would not have asked it, but would have relied upon his objection and exception. But he saw Opinion of the Court-Scott, J. [5 Wash. fit to ask for the instruction, and the court, being then satisfied that the testimony had been wrongfully admitted, gave it, and we think the plaintiff should be bound by the course he adopted, there being nothing to indicate that it did influence the jury in finding a verdict against him on the other causes. It was in relation to a cause of action distinct in itself, which was entirely withdrawn from the consideration of the jury by the instruction. If, during the trial, the defendant who introduced the testimony had asked to have it excluded, a different case would have been presented, and the plaintiff would have been in a position to ask a suspension and setting aside of the trial and the calling of another jury for a re-trial, if he thought the present jury was disqualified to try the case in consequence of such testimony, or possibly it would have been ground for setting aside a verdict against him had he continued. But gener ally a party should ask for relief at the first opportunity. Many authorities hold that an error in the admission of testimony will be cured by an instruction withdrawing it from the case. 2 Thompson on Trials, § 2415; Smith v. Whitman, 6 Allen, 562; Anthony v. Travis, 148 Mass. 53 (19 N. E. Rep. 8); Shepard v. Chicago, etc., Ry. Co., 77 Iowa, 54 (41 N. W. Rep. 564); United States v. Kuntze (Idaho), 21 Pac. Rep. 407; Durant v. Lexington Coal Min. Co., 97 Mo. 62 (10 S. W. Rep. 484). The next ground of error claimed is with reference to the note upon which the defendant sought to recover from the plaintiff. The plaintiff in his reply admitted the execution of the note, but alleged that for the making and delivery of the same there was no consideration. At the trial he testified in substance that long prior to the making of the note his wife had deserted him without cause, and continued to live apart from him. That the defendant sometimes visited her at improper hours and under circumstances justifying a belief upon his part of improper relations be Jan. 1893.] Opinion of the Court-SCOTT, J. tween them while she was living apart from him. That the defendant had told him that he knew why his wife had left him, and that it was on his, the defendant's, account, and that he could persuade her to return to the plaintiff, and that nobody else could do so, and that if plaintiff would give him money to get out of the country with he would go away and induce plaintiff's wife to return; and that in consideration of said promise on the part of defendant, and for no other consideration, he executed and delivered to him said note. Whereupon he was asked by his attorney whether he supposed the relations of Mrs. Lyts and Mr. Keevey were criminal, and whether he had reason so to suppose. This was objected to by the defendant as immaterial; the objection was sustained, and the plaintiff excepted. Appellant contends that the question was proper and material, on the ground that if such relations did exist, and the note was given to induce the defendant to forego the same, that it would have been given for a consideration which the law would not recognize, and that the defendant could not recover thereon. The respondent contends that the testimony sought was inadmissible under the pleadings; that the plaintiff had alleged a want of consideration, while he undertook by this testimony to show an illegal consideration, which is not permissible. In support of the proposition that an illegal consideration cannot be shown under an allegation of no consideration, and that it is necessary to allege the facts, see Bliss on Code Pleading, § 330; Gushee v. Leavitt, 5 Cal. 160; Finley v. Quirk, 9 Miun. 194. This position seems to be well taken, and while this objection was not properly raised at the trial- the objection there being that it was immaterial only, yet, under the rule that the action of the court will generally be sustained where any good reason therefor exists, although it may 39-5 WASH. |