Department 1. Appeal from Superior Court, Stevens County; John Truax, Judge. Separate actions by R. P. Woodworth against School District No. 2 of Stevens County and against Union High School District No. 3 of Stevens County. From judg-. ments for defendants, plaintiff appeals. Af

this is the cost of repairing. Recovery is not
to be limited by a sum not exceeding the
value of the pile driver at the time and place
of the injury, but by the cost of repairing, not
exceeding the amount demanded in plaintiff's
complaint. In this the trial court also erred,
for the jury was instructed that the plain-
tiff might recover the cost of raising and re-firmed.
pairing, not to "exceed the sum of $2,500,
asked in the complaint, and provided the cost
of repairing did not exceed the value of the
pile driver and equipment before the colli-

sion."

After plaintiff had outlined his case as contrary in fact and in law to the case made in the pleadings, the court should have excluded or stricken all testimony going to the value or first cost of the pile driver. It was prejudicial and misleading, and, when considered in the light of the instruction, was an invitation to the jury to consider the first cost as a factor in the equation of damages. Its tendency must have been to enhance the damages over a normal or just recovery.

MAIN, C. J., concurs.

(103 Wash. 677)

WOODWORTH v. SCHOOL DIST. NO. 2 OF

STEVENS COUNTY.

O. C. Moore, of Spokane, for appellant. L. B. Donley, J. A. Rochford, and F. Leo Grinstead, all of Colville, for respondents.

PARKER, J. These cases were before this court upon appeal from prior judgments rendered against the plaintiff, Woodworth, as assignee of the Self-Winding Clock Company, which judgments were reversed and new trials awarded to the plaintiff by our decision reported in 92 Wash. 456, 159 Pac. 757, to which we now refer for a statement of the facts of the controversy. The cases were again, by agreement of the parties, tried together in the superior court for Stevens county, resulting in verdicts and judgments against the plaintiff, denying him recovery, from which he has again appealed to this court.

[1] There is here presented, as upon the former trial and appeal, the question of the

SAME v. UNION HIGH SCHOOL DIST. NO. authority of Jansson, as agent for the Self3 OF STEVENS COUNTY.

Where school district warrants given in payment to agent of seller of school apparatus were not countersigned and registered, as prescribed by Rem. Code 1915, §§ 4554, 4557-2, until after delivery, issuance and delivery were not illegal and beyond cure by subsequent countersigning and registration, so far as rights of assignee of seller were concerned.

3. SCHOOLS AND SCHOOL DISTRICTS 95(5)SCHOOL DISTRICT WARRANTS-PAYMENT.

Winding Clock Company, to collect for it the amounts owing by the school districts for the installing of clocks and appliances, by the contention made in appellant's behalf that the trial court erred in refusing to sustain his counsel's motion, timely made, for judgments notwithstanding the verdicts, upon the ground that the evidence was such as to entitle him to judgments against respondents for the amounts claimed, as a matter of law. A review of this record convinces us that the facts upon which these verdicts and judgments rest are substantially the same as those upon which the former verdicts and judgments rested, except certain evidence excluded upon the second trial in harmony with our decision rendered in reversing those judgments and awarding a new trial, and except certain evidence touching the manner of

Where school districts, for apparatus pur-issuing the warrants to Jansson in payment of chased, lawfully issued warrants to seller's agent because of his apparent authority, he having transferred warrants to an innocent holder, seller's assignee cannot contend warrants did not pay indebtedness to agent as effectually as money, so that payment of warrants after notice of assignee's claim was not improper. 4. SCHOOLS AND SCHOOL DISTRICTS 95(3) WARRANTS NEGOTIABILITY— “NEGOTIABLE INSTRUMENTS."

School district warrants are not "negotiable instruments" within the law merchant, but do possess the qualities of negotiable instruments so far as the manner of transfer of their title is concerned.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Negotiable Instruments.]

the clocks and appliances. Assuming for the present that the latter does not call for the reversal of these judgments, and that we have here for consideration only the question of Jansson's authority, as agent of the clock company, to collect from respondents the amount owing by them for the clocks and appliances, at the time he received the warrants, we feel constrained to hold, as upon the former appeal, that the jury was warranted in finding, as it did in effect, that Jansson then had such apparent authority, and therefore such real authority, in so far as the rights of the appellant here involved

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

are concerned. We deem it unnecessary to appliances. Appellant, we think, is in no again review that question.

position to complain of the order in which the issuance, countersigning, and registration of the warrants occurred. Plainly neither the clock company nor appellant was in the least prejudiced by the order in which these acts occurred.

[2] It is claimed by counsel for appellant, and we assume for argument's sake, that the issuance and delivery of the warrants to Jansson was attended by certain irregularities, from which they argue that respondents did not, in effect, pay Jansson, as agent of the clock company, until after they had notice that the clock company claimed he was not its agent for the purpose of collecting the amounts owing by them for the clocks and appliances, although at the time of the issuance of the warrants respondents may have acted in good faith in issuing and delivering the warrants to Jansson, upon the theory that he was then authorized to collect the amounts owing by them for the clocks and appliances. The warrants were issued and delivered to Jansson on December 9, 1911. They were not, prior to their delivery to him, presented to the county auditor for counter-tended in appellant's behalf, in substance, signing and registration, as provided by sections 4554, 4557-2, Rem. Code, which read:

"He [county auditor] shall countersign and register warrants for the payment of all teachers' salaries, supplies, apparatus, and accounts against the districts upon the written order of the majority of the members of the school board

of each district."

[3, 4] These warrants were finally paid in due course to the bank by the county treasurer from funds of respondents on April 26, 1914, which was about two months after the commencement of this action. Respondents had notice of appellant's claim that Jansson was not its agent for the purpose of collecting the amounts owing by them at the time of the commencement of this action, and for some time prior thereto, but not until long after the issuance of the warrants to Jansson, their countersigning and registration by the county auditor, and their transfer by Jansson to the bank. It is con

that, this knowledge coming to respondents before the warrants were actually paid by the county treasurer, respondents were bound to take steps looking to the prevention of the payment of the warrants, and, not doing so, they, in effect, paid Jansson by the payment of the warrants to the bank, after having notice of appellant's claim that he was not its agent for the purpose of col

"He shall register in his own office, and present to the treasurer for registration in the office of the county treasurer, all warrants of the first and second class districts received from secretaries or clerks thereof before deliv-lecting the amounts owing by them for the ery of the same to claimants."

clocks and appliances for which the war-
rants were issued. This contention was in
effect disposed of by our former decision,
favorably to respondents, since these facts
that appeal,
appear in the record upon
though it seems to have received but brief no-
tice therein. We are convinced, however, that
The war-

Respondents appear to be school districts of the second class. A short time after receiving the warrants Jansson transferred them by blank indorsement and delivery to the Bank of Colville. They were about the same time presented either by Jansson or the bank to the county auditor, when they it was rightly so disposed of. were countersigned and registered by him rants having been lawfully issued to Jansin the manner prescribed by the law above son upon the theory that respondents could quoted. The argument seems to be that, then pay the indebtedness to him because of his apparent authority to collect the indebtsince this was done after delivery of the warrants to Jansson, their issuance and deliv-edness, and he having transferred them to ery to him were illegal and beyond cure. We the bank, an innocent holder, we think it think this is not so, in so far as appellant's would be inequitable to now hold that the rights here involved are concerned. Appel- warrants did not in effect pay the indebtedlant is in the same position as if Jansson ness to Jansson as effectually as if respondhad caused these warrants to be surrender- ents had then paid him in money. It is true ed to respondents, and they had issued new we have held that such warrants are not neones and had them countersigned and regis- gotiable instruments within the meaning of tered by the county auditor, and then deliv- the law merchant, but we have also held ered them to him, and he in turn had as- that such warrants do possess the qualities signed them by indorsement and delivery to of negotiable instruments in so far as the the bank before respondents had any notice manner of transfer of their title is concernof appellant's claim that he was not its ed. In Fidelity Trust Co. v. Palmer, 22 agent for the purpose of collection. In oth- Wash. 473, 61 Pac. 158, 79 Am. St. Rep. 953, er words, these warrants were issued by re Chief Justice Gordon, speaking for the court, spondents, countersigned and registered by said: the county auditor, and delivered to Jansson, and by him assigned to the bank, long before respondents had any knowledge of appellant's claim that Jansson was not its agent for the purpose of collecting the

"The great weight of authority is that a county or city warrant possesses all of the qualities of negotiable paper but one, viz., that it is open to any defense which might have been made to the claim upon which it is founded. For all purposes involving its title, it must be

MAIN, C. J., and MITCHELL, TOLMAN, tendent of streets, without legal authority, and FULLERTON, JJ., concur.

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such city or town"; but the statute is silent upon the question of how the city shall fix the price for the materials sold for use in the construction of municipal improvements of such city or town. It is manifest, if the plant is constructed and operated for the purpose of equalizing prices and preventing exorbitant charges, that the price at which the city proposes to sell should be known to all persons interested at all times, so that all prospective bidders upon public work may know at what price they may procure such product in the event of securing a contract.

We are not greatly impressed by the argument that the superintendent of streets could offer to sell to one bidder at one price, and demand a different and higher price, or refuse to sell at all, to another bidder, because we cannot conceive of a public official who would so lose sight of his duty. Such a possibility, however, would seem to exist, if the contentions of the appellants are to obtain.

[1] The Legislature having authorized the city to fix the price and having left the manner of doing so to the city, we must turn to the city charter to ascertain if it provides a method therefor. Section 18 of article 4 of the city charter of Seattle reads:

"Sec. 18. Powers of Council.-The city council shall have power by ordinance and not other

wise- ** *

"Twelfth. (a) To provide by ordinance for acquiring, opening and operating stone quarries, either within or without the city limits, and for the erection of asphalt plants and the prep aration, manufacture and sale of all such stone or asphalt products or compositions or other materials which may be used in street construc tion or maintenance, and to fix the price at which such materials shall be sold."

The argument that the price must necessarily change from time to time, because of a change in the cost of production, cannot, in our judgment, prevail against the plain language of the charter. No doubt the city may use its asphalt, under the authority of the statute heretofore quoted, to improve and repair streets, and when it carries on the work of local improvements by day's labor. But our attention has not been called to any provision of law, statutory or charter, which authorizes the city to enter into contracts, or subcontracts, for the laying of asphalt; and we know of no authority for a municipality to hazard public funds gathered by taxation, by entering into competition with private enterprises in the taking of contracts or subcontracts for the laying of asphalt, even upon its own streets.

[2] Some contention is made here as to the right of the respondent to maintain this action. But under Dirks v. Collin, 37 Wash. 620, 79 Pac. 1112, and Miller v. Sullivan, 32 Wash. 115, 72 Pac. 1022, we think the action was properly brought by the respondent.

Counsel for the respondent invites our attention to paragraph 9 of the complaint, which alleges that the city charter provides that all local improvement work must be done under the direction and supervision of the city engineer; that, notwithstanding these provisions, the superintendent of streets has assumed to do, and has done, work in the nature of street paving, and private contracts for paving of streets, without the supervision of the city engineer. In the decree entered by the trial court, the city and its superintendent of streets is enjoined from selling asphalt until the price shall have been fixed This provision appears to cover the ques-form private contracts in the nature of subby ordinance, and from undertaking to pertion in dispute fully and in language too clear to require construction. By the provision "by ordinance and not otherwise" the city is required and directed to fix the price at whch asphalt shall be sold, by ordinance, and forbidden to fix it in any other manner.

contracts for contractors who have been awarded contracts for publie improvements, and from doing and performing any paving is done in accordance with the city charter or local improvement work without the same If this provision be permissive only, and not and the ordinances of the city of Seattle. If mandatory, as appellants contend, then it is be done under the supervision of the city engithis last provision means that the work must difhcult to understand why an ordinance should be required for any of the purposes neer, as provided by the charter, then it has mentioned in the forty-odd subdivisions of perintendent of streets may continue to perour approval; but, if it means that the suthe section of the charter referred to; and form work without the supervision and apthe mayor, or some other city official might proval of the city engineer, we are powerless, assume to provide for the appointment and in the absence of an appeal by the respondelection of officers, the assessment and levy-ent, to pass upon the question he thus raises. ing of taxes, the acquisition of property, the borrowing of money and issuance of bonds, and the performance of other like functions, which section 18 provides shall be done by ordinance only.

court will be affirmed.
Finding no error, the judgment of the trial

MAIN, C. J., and FULLERTON, PARKER, and MITCHELL, JJ., concur.

MORRISON v. CHICAGO, M. & ST. P. RY. ing. The crew were accustomed to ride on it

arrived at Mowry, where the gang were employed, about noon and took charge of his crew. The gang were engaged in unloading concrete tiling to be used in replacing wooden culverts. The tiling had been shipped from Spokane on five cars and had landed at Mowry, which is a blind siding west of At Plummer Junction, three days before. about 5:30 p. m. Morrison went to a telephone 2. COMMERCE 27(8) — FEDERAL EMPLOYERS' booth, which is maintained for the convenLIABILITY ACT-ACTION-"INTERSTATE COм-ience of appellant's employés, and called the MERCE." agent at Plummer. The agent details the conversation: