the same year were by them foreclosed in separate actions, the decrees of foreclosure being entered on the same day, namely, August 9, 1895. An order of sale was issued on one of these decrees, and the land sold thereunder to the receivers on the 16th day of September, 1895. On the 18th of September the receivers entered into a contract with the mortgagors, in which it was agreed that the mortgagors should cut and sell from off the mortgaged lands sufficient logs to satisfy and discharge the mortgage indebtedness. The mortgagors entered at once upor the performance of the contract, and while engaged thereon the interests of the receivers in the property were transferred and conveyed to the appellant, Clarke. Clarke thereupon brought an action upon the contract, alleging nonperformance on the part of the Clydes. This action was prosecuted to judgment, in which the amount due from the Clydes to Clarke was determined, and certain moneys earned under the contract were directed to be collected, and certain undisposed-of property was ordered sold, and the several amounts were directed to be applied, when received, upon the amount so found to be due. Thereafter various sums of money were collected and applied on the judgment. leaving a balance, however, unprovided for. This balance the Clydes tendered to the sheriff upon an application to redeem the lands from the mortgage sale. The sheriff refused to issue a certificate of redemption, whereupon a suit to redeem was begun by the Clydes, which appears to have been pending at the time of the trial of this action. The logs in controversy were severed and removed from the lands by the Clydes after the attempted redemption was made. At that time the respondents were in the sole and undisturbed possession of the lands, claiming the same adversely to all the world. It appears further that neither the receivers of the Aberdeen Bank nor their successor in interest, the respondent herein, ever had possession, or ever undertook to take possession, of the lands from which the logs were taken. The jury returned a verdict for the respondents, upon which the judgment appealed from was entered.

In Churchill v. Ackerman, 22 Wash. 227, 60 Pac. 406, this court held that the owner of land out of possession could not recover in replevin or conversion for crops grown upon such land from one in possession holding adversely to the true owner; that he must first recover possession of the land, when he might maintain his action for mesne profits and for waste, but that crops and other products of the soil, when severed therefrom, became chattels, and the property of the person in possession. Quoting from the case of Brothers v. Hurdle, 32 N. C. 490, 51 Am. Dec. 400, it was said: "But when one who is in the adverse possession gathers a crop in the course of husbandry, or severs a tree or other thing from the land, the thing severed

becomes a chattel; but it does not become the property of the owner of the land, for his title is devested. He is out of possession, and has no right to the immediate possession, of the thing; nor could he bring any action until he regains possession.

us.

** **

*

The owner of the land cannot sue for the thing severed in trover or detinue as a chattel, for it is not his chattel. It did not become so at the time it was severed, and the title to it as a chattel cannot pass to him afterwards, when he regains the possession, by force of the jus postliminii." The principle of this case is decisive of the one before The appellant was out of possession of the land at the time the logs were severed and removed. The respondents were in possession, holding the lands adversely to him under a claim of right. The appellant cannot, therefore, maintain an action against them for the recovery of the logs removed, or for their value; and, as but one judgment could be entered upon the undisputed facts of the case, it is unnecessary to discuss the many errors the appellant has assigned for reversal. Affirmed.

(25 Wash. 590)

FURTH v. KRAFT et ux. (Supreme Court of Washington. July 27, 1301.) APPEAL AND ERROR-EVIDENCE-WEIGHT

FINDINGS-REVERSAL.

Where the weight of conflicting evidence is not clearly against the findings of the trial court, such findings will not be disturbed on appeal.

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Jacob Furth, as administrator of the estate of Henry L. Yesler, deceased, against Charles F. Kraft and wife. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Preston, Carr & Gilman, for appellant. W. D. Lambuth, for respondents.

The

MOUNT, J. This is an action of unlawful detainer for the possession of premises described, and for rent alleged to be due. complaint, after formal allegations, alleges, in substance, that on May 1, 1894, by an oral agreement, Henry L. Yesler leased to defendants certain described property, from month to month, for an indefinite period, at a monthly rental of $2.50; that the defendants thereupon entered into and have held possession thereof to the present time, and that no rent has been paid, except $10. Then follow the notice to quit or pay rent served upon defendants, and the allegations of service, and failure to pay or deliver possession. Defendants by their answer deny the allegations concerning the lease and the agreement to pay rent, admit possession and refusal to vacate and pay rent, and deny that possession was obtained from said Yesler. The

cause came on for trial before the judge of the superior court of King county, a jury being waived. After hearing the evidence, the court made findings against the plaintiff, and dismissed the action. From a judgment of dismissal, plaintiff appeals.

The only question presented in this record is one of fact. There were two witnesses who testified upon the merits in the case,one for the plaintiff, and the other for defendants. J. D. Lowman, the witness for plaintiff, testified, in substance, that on or about the 1st day of May, 1894, "Captain Kraft was owing us considerable rent for occupying a house in what is now Yesler's Third addition, at the end of Yesler avenue car line, or near the end of it, and also several lots out in the water used for swimming, and scows and frames and toboggan slides and different things that were arranged for swimming, and a considerable rent had accumulated, and, he being unable to pay it, he tendered us the scows in payment of the back rent, and we took them, and canceled between two and three hundred dollars' worth of back rent, he agreeing to give up the house, and move out to the scows; and the rent was then to be reduced to $2.50 per month, of which he paid four months,-paid for May and June, some time in June, $5, some time in August he paid another $5, and that $10 is all we have ever collected;" that he gave up the house, and moved down onto the scows, and has been in possession ever since. Mr. Kraft, for himself, testified, in substance, that he rented a two-story house from Henry L. Yesler, but did not rent any property on Lake Washington below highwater mark; never agreed to pay rent for any land on the shore of Lake Washington below high-water mark; that in May, 1894, be settled with Mr. Lowman for back rent of the house he had occupied by giving two floats; that at this time he was living in his own house, built on piles in Lake Washington, where he now lives; that after making this agreement he agreed with Mr. Lowman to rent the two scows at $2.50 per month; that he never agreed to pay rent for the water lots. A receipt for $5 was introduced, which tended to corroborate Kraft by reason of the recital that it was for "rent for June for use of floats." It is readily seen that the evidence is directly contradictory. The trial court, having seen and heard the witnesses, was better qualified than we are to determine the facts. This court has many times decided that the findings of the trial court will not be disturbed where the evidence is conflicting, unless the weight of the evidence is clearly against the findings. Improvement Co. v. Partridge, 19 Wash. 62, 52 Pac. 523; Riddell v. Brown (Wash.; decided July 13, 1901) 65 Pac. 758. The judgment will therefore be affirmed.

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

(25 Wash. 606)

BURKMAN et al. v. JAMIESON. (Supreme Court of Washington. July 31, 1901.) JUDGMENT-PERSONS CONCLUDED THEREBYPLEADING-SUFFICIENCY OF COMPLAINT.

Under 1 Ballinger's Ann. Codes & St. § 2945, making the owner or lessor of a building jointly and severally liable with the person selling liquor therein for injuries to the person or means of support caused by such sale, and section 2947, giving the lessor the right to recover of the lessee any damages paid out by him, a judgment against the owner and lessor of a building wherein intoxicating liquors are sold is not conclusive against the lessee selling the liquor, who was not a party to the action, nor served with notice to defend the same, and hence a complaint, in an action by the lessor against the lessee, which merely alleged the recovery of the judgment, and did not set out the facts constituting the injury, was insufficient.

Appeal from superior court, King county; E. D. Benson, Judge.

Action by J. Burkman and Paul Burkman, doing business under the firm name and style of J. Burkman & Bro., against Peter Jamieson. From a judgment in favor of plaintiff's, defendant appeals. Reversed. Preston & Embree, for appellant. Wm. Parmerlee, for respondents.

MOUNT, J. Under section 2945, 1 Bab linger's Ann. Codes & St., Bridget Fitzgerald and her minor child, by a guardian ad litem, instituted separate actions for damages in the superior court of King county against respondents and one J. D. Lowman, as lessors and owner, respectively, of certain premises where intoxicating liquors were kept for sale. Appellant, who was their tenant, and who was the proprietor of the saloon operated on said premises, was not made a party to either of said actions, had no notice of the pendency thereof, and did not appear therein. On April 20, 1900, said Bridget Fitzgerald and said minor, by its guardian ad litem, each recovered judgment in said action for the sum of $525. Thereafter respondents, Burkman Bros., paid these judgments, and brought this action against appeliant to recover the amount so paid. The complaint alleges substantially that the respondents leased to the appellant a certain building in the city of Seattle, and that the appellant occupied said building as a saloon, wherein intoxicating liquors were bought and sold, and that the appellant knowingly permitted therein the sale of intoxicating liquors in the month of September, 1899; that in said month, in said building, appellant sold and disposed of, and caused to be sold and disposed of, intoxicating liquors to one William Weir and to one Richard Fitzgerald; and that by reason of said sales and disposal of said intoxicating liquors to said Weir and Fitzgerald the said Weir made an assault upon the said Fitzgerald, and did beat and wound him, from the effects of which, and the intoxicating liquors sold as

aforesaid, the said Fitzgerald died in said saloon, and that said death would not have been caused but for and on account of the intoxicating liquors sold to him and said Weir by the appellant. It is further alleged that Bridget Fitzgerald, widow of said Richard Fitzgerald, and Georgiana Fitzgerald, minor child of said Richard Fitzgerald, instituted in the superior court of King county their separate actions against these respondents and one J. D. Lowman, and that upon the trial of said actions judgments were rendered in each of them in favor of plaintiffs therein and against these respondents and said Lowman for the sum of $525 on account thereof, and that respondents had paid the same. Respondents pray for judgment against appellant for the amount so alleged to have been paid by them and on account of said judgments. To this complaint a demurrer was interposed by appellant upon the grounds: (1) That there was a misjoinder of parties; and (2) that the complaint did not state facts sufficient to constitute a cause of action. This demurrer was overruled, and exception taken and allowed. An answer amounting to a general denial was thereupon filed. The cause was tried to the court and a jury. In the course of the trial the judgment in Fitzgerald against Lowman and others was offered and admitted in evidence, over the objection of appellant. No injury to Mrs. Fitzgerald or her minor child was alleged or shown at the trial, other than was shown by the judgments above named. At the close of the evidence for plaintiffs, appellant moved for nonsuit, which was denied. Appellant then introduced evidence tending to prove that no liquors had been sold or given to Weir or Fitzgerald, and rested. Respondents then moved the court to discharge the jury, and make findings for plaintiffs. This motion was granted, and judgment entered thereon. Appeal is taken from this judgment.

This appeal turns upon the question whether appellant is bound by the judgment in Fitzgerald against Lowman and others, to which action he was not a party, which he had not been notified to defend, and in which he had not appeared. If he was bound, under the law, by that judgment, then the complaint stated a cause of action, the judgment being conclusive upon him as to all the facts necessary to sustain it. If the said judgment was not conclusive upon him, then it became necessary for respondents to allege and prove, in addition to the allegations of the complaint, that Mrs. Fitzgerald and her minor had been injured in means of support, and the amount thereof, not exceeding the judgment. It is the common-law rule that all who are not parties to a judgment, nor privies to such parties, are wholly free from the estoppel of the judgment. 2 Black, Judgm. 600; 1 Freem. Judgm. 154. This rule prevails, unless abrogated by statute. Section 2945. 1 Ballinger's Ann. Codes & St., 66 P.-4

makes the owner or lessor of premises wherein intoxicating liquors are kept for sale severally and jointly liable with the person selling, where injury in person or property or means of support is caused to another by reason thereof. Section 2947, 1 Ballinger's Ann. Codes & St., provides as follows: "Any owner or lessor of real estate, who shall pay any money on account of his liability incurred under this chapter, for any act of his tenant, may, in a civil action, recover from such tenant the money so paid." The object of these sections evidently was to make the tenant liable for the damages he causes. He is liable to the persons injured, and liable also to the landlord or lessor who has paid money for liability incurred by the act of the tenant, either in a joint or several action. The liability of the owner or lessor depends upon the liability of the tenant. If there is no liability of the tenant, there can, of necessity. be no liability of the lessor or owner. Before there can be any recovery against the lessor or owner, the liability must be established against the tenant; and a judgment against the landlord must depend upon the liability of the tenant. If the landlord does not require the tenant to defend, or give him an opportunity to do so, he must assume the burden of maintaining the liability against the tenant. This statute does not give a right of action for money paid without liability, but on account thereof. Where a person is made liable in damages for any act, he ought, in justice, to have a right to defend against a claim therefor. It is but common right that he should have his day in court, and an opportunity to plead and prove a defense if he have one. Under the rule contended for by respondents, viz. that the judgment in this case is conclusive against the appellant, this principle, which is as old as the law itself, might, in many instances, be set aside. For example, it would be possible for an owner or lessor of premises, who had been severally sued on account of an act of his tenant, to compromise such action without notice to the tenant either of the suit or compromise, and thereupon in good faith have a jury called, and proof taken, and a verdict and judgment for an amount agreed upon, which judgment would be conclusive against the tenant, who might have a perfect defense. And again, the tenant may have settled a claim in full without suit, and an action for the same injury be brought against the owner without knowledge of the tenant, and judgment recovered which would be binding upon the tenant. Or again, the owner might be sued severally, and a recovery had, without notice to the tenant, for an injury which had once been defeated by the tenant in an action against him, and against which he had a perfect defense. If the judgment against the owner is binding upon the tenant, he could not be heard to defend against it in a suit by the owner to recover from him

These conditions and others would be possible under the construction urged by respondents. It was evidently not the intention of the legislature to deprive a tenant of his right or opportunity to make a defense to a claim for liability, and no fair construction of the language of the section quoted can make it do so. We think the owner or lessor under our statute stands in the nature and relation of an indemnitor or surety for the tenant | severally liable with him, and that, when an action is brought against him, he may make his tenant a party by giving him a "full, fair, and previous opportunity to meet the controversy," and thus avoid the peril and inconvenience of being required in a subsequent controversy to show the liability of the tenant in order to recover back the amount paid out. A question similar to the one here under consideration was decided by the supreme court of Ohio in the case of Goodman v. Hailes, reported in 59 Ohio St. 342, also reported in 52 N. E. 829, and the court held in that case that the judgment was conclusive. The supreme court of Iowa, in the case of Buckham v. Grape, reported in 17 N. W. 755, and on rehearing in 22 N. W. 664, arrived at the opposite conclusion. These cases, while involving much the same question, turned principally upon statutes of the respective states, and are of little value in the determination of the question here. Under the view we have taken of the case, it follows that the complaint did not state a cause of action, and that the demurrer should have been sustained. Other errors are complained of, but we think the rulings of the trial court were correct, and a review of them here would avail nothing. The judgment will be reversed, and the cause remanded, with instructions to the lower court to sustain the demurrer to the complaint, with leave to respondents to amend.

EXPRESS CONTRACT-QUANTUM VALEBAT. Plaintiff alleged a sale of goods to defendant at an agreed amount, the defendant answering that he had no contract with plaintiff as to the purchase of the goods, and that ou their receipt he rejected them, and thereafter, under an arrangement with plaintiff, sold them, to save them from decay; the proceeds of which were deposited with the clerk of the court for plaintiff's benefit. No counterclaim was set up, defendant merely asking to be dismissed, with costs and disbursements. that, since recovery must be had on the express contract alleged, and not on a quantum valebat, a verdict for a sum less than the full amount claimed was error.

Held

Action by Heber N. Tilden, doing business as H. N. Tilden & Co., against Gordon & Co., a corporation. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Byers & Byers, for appellant.

HADLEY, J. Heber N. Tilden, doing business under the firm name and style of H. N. Tilden & Co., in San Francisco, brought this suit against Gordon & Co., a corporation located and doing business in the city of Seattle. The plaintiff, respondent here, claims in the complaint that on the 8th day of July, 1899, he sold and delivered to the defendant, at the city of San Francisco, 200 sacks of potatoes, weighing 22,905 pounds, and that defendant agreed to pay plaintiff therefor the sum of $1.70 per 100 pounds, or the total sum of $389.39; that, at the request of the defendant, the potatoes were delivered to the Pacific Coast Steamship Company at the wharf in San Francisco, consigned to the defendant at Seattle. It is alleged that the potatoes were sold upon the verbal order of one Fishel, who was the agent of defendant, that the whole sum is due and unpaid, and judgment is demanded for said sum. Under a second cause of action it is alleged that, prior to the time above mentioned, the plaintiff sold certain other goods to defendant at the agreed price of $365.42, upon which defendant has paid the sum of $323.17, leaving a balance of $42.25 due plaintiff on account thereof, and judgment is also demanded for the lastnamed sum. The answer denies the material allegations of the complaint, and alleges affirmatively that the defendant ordered from one Caldwell, in Seattle, who purported to represent one Fishel, in San Francisco, 200 sacks of fancy Burbank potatoes, upon condition that said potatoes should be strictly first-class fancy stock; that, upon the arrival of said potatoes in Seattle, they were found upon examination to be inferior and unsaleable stock, the top and bottom of each sack being filled with a fair quality of goods, but the middle of each sack was filled with little, inferior, and unmerchantable potatoes; that, upon examination and discovery of the defect in the goods, the defendant immediately notified said Caldwell that the potatoes were rejected, and were held subject to his order; that upon the day following the defendant received a telegram from plaintiff, stating that Fishel had acted as the broker of defendant, and that they refused to allow the rejection. It is further alleged that, by reason of the fact that the potatoes were decaying rapidly, it was agreed between plaintiff and defendant that they should be sold at the best price obtainable in the market. The potatoes were accordingly sold by defendant, and the proceeds of the sale amounted to $144.55. It is

this action, the defendant tendered said sum

to plaintiff, which was refused, and that defendant has at all times since been, and is now, willing and ready to pay plaintiff said sum of $144.55, and now pays the same into the registry of the court for the use of plaintiff. The reply admits that plaintiff was notified that the potatoes were decaying, but denies every other material allegation of the affirmative answer. A trial was had before a jury, and a verdict was returned in favor of plaintiff for the sum of $208. Thereafter the plaintiff moved the court for judgment upon the verdict of the jury for the sum of $131.64, being the full amount demanded by plaintiff under both causes of action stated in his complaint. The defendant moved the court to set aside the verdict rendered, and to grant a new trial. Among the grounds set forth in the motion for new trial are (1) error in the assessment of the amount of recovery, in that the same is too large; (2) insufficiency of the evidence to justify the verdict rendered, and that it is against the law. The motions of both plaintiff and defendant were by the court denied, and judgment was thereupon entered in favor of plaintiff for the sum of $208, the amount returned by the verdict of the jury. From said judgment, the defendant has appealed.

Both appellant and respondent seem to agree in this case that the verdict and judgment were erroneous. The respondent has not appealed from the judgment, but he has filed no brief, and has made no appearance in this court. From respondent's motion for judgment in the record we infer that it is evidently his theory that, if he is entitled to judgment at all, he is entitled, under the pleadings, to the full amount claimed in the complaint. This, we think, must be true, at least with reference to the amount claimed in the first cause of action. The complaint alleges a sale at an agreed price of $389.39, and that the whole amount is due and unpaid. Under the complaint there is no question of value involved, and, if respondent recovers, he must recover upon the express contract alleged, and not for reasonable worth and value. Appellant denies that there was any contract with respondent, and alleges that the potatoes were bought through Caldwell, as the representative of Fishel, in San Francisco. Under the issue tendered by the answer, respondent was a stranger to the sale, and in no way connected therewith. The answer discloses that appellant subsequently learned that Fishel had bought the potatoes of respondent, and that respondent claimed that Fishel acted as appellant's broker or agent, and, as such, made the contract set out in the complaint. It also avers that by agreement with respondent the potatoes were sold by appellant, in order to save them from decay, and that appellant holds the proceeds for respondent, which he refuses to accept; but there is no counterclaim set up in the answer, and ap

We

pellant simply asks to be dismissed, with its costs and disbursements. The contract alleged being an express one as to price for the potatoes, and it being shown by the evidence that they were promptly delivered to appellant, since there is no plea of payment, counterclaim, or set-off, and no claim or pretense that any payment has been made, it follows that, if respondent is entitled to recover at all, he is entitled to the full amount claimed under the first cause of action. are not able to account for the amount of the verdict under any theory presented by the pleadings or proofs. If the jury intended to treat the amount for which the potatoes were sold as a payment to be applied upon the purchase price, they were not authorized to do so under the pleadings. In any event, even if the jury so calculated in reaching their verdict, after deducting the sum of $144.55, the amount for which the potatoes were sold, from the alleged contract price, $389.39, there remains $245.84, whereas the verdict was for $208. If the amount claimed under the second cause of action be also considered under that theory, we are still unable to account for the amount of the verdict. We think, therefore, that, under any view, the verdict was erroneous. In view of the verdict that was returned, and after an examination of the evidence, we believe the court did right in denying respondent's motion for judgment for the full amount claimed, but we think it was error to deny appellant's motion to set aside the verdict and grant a new trial.

Since the judgment must be reversed for reasons already stated, it is not necessary to discuss other errors assigned on the introduction of evidence and the instructions of the court. The judgment is reversed, and the cause remanded, with instructions to the court below to set aside the verdict and grant the motion for a new trial.

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

(25 Wash. 585)

MURPHY v. CLARKSON et ux. (Supreme Court of Washington. July 25, 1991.) PRINCIPAL AND AGENT-AGREEMENT TO SELL

LAND-MISTAKE-MUTUALITY.

Where the owners of land appointed a member of a firm as their agent to sell the land, and thereafter the latter's partner agreed to sell the same to plaintiff, the agreement being made in the firm name by mistake, in the absence of a showing that the mistake was mutual, and that plaintiff was fraudulently misled, or could not, by the exercise of reasonable diligence, have discovered the facts, the owners will not be liable on their refusal to convey.

Appeal from superior court, King county; George E. Morris, Judge pro tem.

Action by D. A. Murphy against J. D. Clarkson and wife. From a judgment in favor of plaintiff, defendants appeal. Reversed.