DENNIS v. GARY. (Supreme Court of Washington. Nov. 30, 1909.) 1. HIGHWAYS (§ 16*)-PLEADING EXISTENCE GENERAL DENIAL SCOPE. In an action to enjoin the obstruction of a logging road on the theory that it had become a public highway by prescription under a general denial, defendant could introduce certain leases to show that the use of the road by certain persons had been permissive, and not adverse. [Ed. Note.-For other cases, see Highways, Dec. Dig. § 16.*] 2. APPEAL AND ERROR (§ 1051*)-HARMLESS ERROR ADMISSION OF EVIDENCE-FACTS OTHERWISE SHOWN. Any error in admitting evidence was not reversible, where the fact sought to be established thereby was shown by competent evidence not excepted to. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4161-4170; Dec. Dig. 1051.*] Department 1. Appeal from Superior Court, Cowlitz County; W. W. McCredie, Judge. Action by L. M. Dennis against Nelson Gary. From a decree for defendant; plaintiff appeals. Affirmed. Imus & Stone and Jeffery & Lemon, for appellant. O'Neill & Leonard, for respondent. GOSE, J. This action was instituted for the purpose of having a certain roadway or logging road declared to be a public highway, and to enjoin the respondent from obstructing it. There was a decree for the respondent denying the relief sought, from which the appeal is prosecuted. was that the road had become a public highway by prescription. Upon a general denial it was therefore competent to show that the use had been permissive, and not adverse. Penter v. Straight, 1 Wash. St. 365, 25 Pac. 469; Scheller v. Pierce County, 104 Pac. 277. Moreover, a permissive use was abundantly established by competent parol testimony, to which no exception was reserved. Finding no error in the record, the decree will be affirmed. RUDKIN, C. J., and FULLERTON, CHADWICK, and MORRIS, JJ., concur. NEILSEN v. HOVANDER et al. (Supreme Court of Washington. Nov. 26, 1909.) 1. ASSAULT AND BATTERY (§ 9*)-CIVIL LIABILITY-DEFENSES. That defendants in making a violent assault on a woman did so because she was preventing them from going over a public highway over her land, which she had previously taken possession of and closed, would be no excuse for their acts. [Ed. Note.-For other cases, see Assault and Battery, Dec. Dig. § 9.*] 2. ASSAULT AND BATTERY (§ 24*)-CIVIL LIABILITY ISSUES AND PROOF GENERAL DENIAL JUSTIFICATION. Defendants in an action for assault and battery cannot show under a general denial that they were justified in making the assault because plaintiff was preventing them from going over a public highway. [Ed. Note.-For other cases, see Assault and Battery, Dec. Dig. § 24.*] 3. PLEADING (§ 239*) - AMENDMENT-TERMS-DISCRETION. Where defendants, in an action for assault and battery, are unable to plead justification under a general denial and they ask to amend, the action of the court in granting the amendment only on condition of payment of all costs because of surprise to plaintiff was a proper exercise of discretion. [Ed. Note.-For other cases, see Pleading, ly injured, the assault being unprovoked, violent, Where a woman was assaulted and serious The evidence shows conclusively: That the construction of the roadway commenced in 1896; that it was completed in 1897; that it was built as a logging road by placing poles parallel five or six feet apart so that cars could be hauled over them, first by horse power and later by means of an engine; that the parties who constructed and used the road for the conveyance of logs, and their successors in interest in the logging business other than the appellant, used it by permission under written leases until 1907; that it has been used almost exclusively as a logging road in the manner stated; that no public money has been expended upon it; and that it has never been treated or used as a public highway. The evidence does not show any use of the road of any magnitude other than by the parties who constructed it, their successors in interest and employés. The complaint alleged that the road was used by the public for 13 years. This was denied by the answer. The court permitted the respondent to introduce certain leases in evidence, showing a permissive use of the road. It is contended that the leases were not admissible as evidence under a general denial. The theory of the appellant against H. O. Court, Whatcom County; John A. Kellogg, Judge. Hovander and another for assault and batAction by Mary F. Neilsen against H. O. Hovander and another for assault and battery. From a judgment for plaintiff, defendants appeal. Affirmed. Liddy & Lewis and Hardin & Hurlburt, for appellants. Fairchild & Bruce and T. D. J. Healy, for respondent. CROW, J. Action by Mary F. Neilsen to recover damages for assault and battery. | amend their answer, by alleging "that at From a judgment in her favor, the defendants have appealed. Respondent alleged the assault and battery, insulting, profane, and defamatory language used by appellants, and her damages. The answer was a general denial. There was evidence that H. O. Hovander, father of Otis Hovander, owns two farms in Whatcom county, one located immediately west, and the other east, of land belonging to the respondent; that on the day of the assault the appellats attempted to drive a twohorse team and wagon through respondent's gate and across her land; that she held the gate and forbade them entering; that one of them, with violence and force, opened the gate; and that the difficulty then occurred. The respondent testified that the appellants kicked and beat her; that they struck her with a leather strap; that they used insulting, profane, and defamatory language to her, which she repeated on the witness stand; that she was physically injured; that she was humiliated and chagrined; and that the appellants, with violence and force, did trespass upon and cross her land. In these statements, some of which are denied by appellants, the respondent is corroborated. The appellants contend that the trial court erred (1) in excluding competent and material evidence; (2) in failing to give requested instructions; (3) in refusing a new trial; and (4) in entering judgment for the respondent. the point of the alleged difficulty there was an old public road or highway long in use and established by adverse user and prescription along and through the land of plaintiff as defendants verily believe, and so state the facts to be." The respondent objected to the proposed amendment, claiming surprise, and that she was unprepared to meet the same for want of witnesses. Thereupon the trial judge said: "The plaintiff in this case would be entitled, if this amendment should be allowed, on their statement (her attorneys) that they would be unprepared to meet the issues as framed, to an allowance of this amendment only on terms. The terms would be, and could not be other than, the payment by the defendants of the entire costs of this proceeding up until this time, including witness fees and jury fees that have been paid, on the statement of plaintiff's counsel that they could not proceed further to trial at this time." To this ruling the appellants excepted. They declined to accept or comply with the terms imposed. The ruling of the trial judge was without error, being a proper exercise of his discretion. The appellants, having failed to accept or comply with the terms offered, are in no position to now contend that evidence offered to show the existence of a highway was erroneously excluded. Other assignments of error are predicated upon the refusal of the trial court to admit evidence of advice of the county attorney given appellants concerning the highway, and To show the existence of an alleged public also upon the refusal of the trial judge to road established by prescription over the give certain requested instructions. These respondent's land at the point where the contentions are without merit, as in their difficulty occurred, the appellants offered evi- final analysis they involve the same question dence which was excluded by the trial court. that was presented by the exclusion of eviThey now contend that error was thereby dence to show the existence of a county road. committed, and that the existence or nonex- The respondent had inclosed the land. It istence of the road was a material and im- had been fenced for some time. portant fact for the consideration of the peaceable and exclusive possession. There jury. Assuming that appellant could have was evidence tending to show a violent and shown the alleged highway in fact existed, inexcusable assault upon her by the appelit was nevertheless undisputed that the re- lants. The pleadings presented no issue as spondent had fenced and inclosed it as her to the existence of a highway, none being private property; that she was then, and alleged, mentioned, or suggested therein, nor had been for some time, in exclusive posses- did the appellants affirmatively plead any sion; that she had forbidden appellants tres-fact in justification. "Under a mere general passing thereon; and that they did so with force and violence. If the respondent did, in fact, close or obstruct a legal highway and deprive the appellants of its use, her wrongful act, even though it created a public nuisance, did not excuse their acts in taking the law into their own hands, in making a violent assault, and in committing a breach of the peace, to open the road and abate the nuisance. Appellants, in effect, contend that, in presenting their defense, they were entitled to show the existence of the highway as justification. Their answer contained denials only. No facts or circumstances tending to show justification were pleaded by them. denial, the defendant cannot introduce evi- The appellants further contend that the court erred in refusing a new trial on account of excessive damages awarded under the influence of passion and prejudice. The verdict was for $1,000. The motion for a of this amount be remitted, which was done. [ The appellants, however, contend that $750, for which final judgment was entered, is still excessive. There was sufficient evidence to show that respondent was seriously injured; that the assault was unprovoked, violent, and vicious; and that it was accompanied by language of a scandalous and profane character used by appellants, which tended to defame and villify her. In view of all the circumstances and the action of the trial judge, we cannot conclude that we should hold the damages awarded are still excessive. The judgment is affirmed. Million & Houser, for appellant. H. R. Clise, for respondent. Wm. Martin, Julius L. Baldwin, and John F. Dillon, for interveners. MOUNT, J. The appellant brought this action against the Washington Alaska Bank of Fairbanks, Alaska, to recover $1,900. This money was alleged to have been deposited in the bank, to be paid to the appellant upon delivery of two reels of 800 feet each of suspension bridge cable, 12 Crosby wire rope clips, and four 4-inch turn-buckles, at the town of Fairbanks, Alaska; that the goods were delivered, but the bank refused to pay over the money. The bank answered, RUDKIN, C. J., and MOUNT, PARKER, in substance, that it had received the monand DUNBAR, JJ., concur. JOHN A. ROEBLING'S SONS CO. v. WASHINGTON ALASKA BANK (SMITH et al., Interveners). (Supreme Court of Washington. Nov. 26, 1909.) 1. SALES (§ 92*)-RESCISSION OF CONTRACTNEW CONTRACT. A town committee in Alaska desiring 12inch cables for a bridge, but wishing to have them before navigation closed, ordered of the seller's agent 24-inch cables on his statement that such cables were in stock, and would be shipped from Seattle before close of navigation. An escrow agreement was then drawn up by which it was agreed that the price would be deposited in a bank to be paid to the seller on fulfillment of the contract; no mention being made of size of cables and time of delivery. The goods were not shipped and the committee in the spring wrote the seller that they had agreed to accept 2-inch cables because he had them in stock, and they wanted them in the fall, but they now wanted 12-inch cables as originally ordered, such cables to be shipped by first steamer, to which the seller answered that the order placed by the committee would leave Seattle on first boat. Held, that the contract for 24-inch cables was rescinded by the correspondence in the spring, and hence the committee had the right to refuse a shipment of 24-inch cables. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 257, 259; Dec. Dig. § 92.*] 2. EVIDENCE (§ 410*) PAROL EVIDENCE TERMS NOT COVERED BY CONTRACT. An original contract of sale resting in parol, and an escrow agreement not being inconsistent with the parol agreement, but merely fixing the payment of the price and the duties of the depositary in reference thereto, evidence tending to prove the parol contract and its terms was not objectionable as varying the terms of a written contract. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1846; Dec. Dig. § 410.*] Department 2. Appeal from Superior Court, King County; R. B. Albertson, Judge. Action by the John A. Roebling's Sons Company against the Washington Alaska Bank and J. H. Smith and others, interveners, to recover money deposited to be paid on the completion of a contract. From a judgment for the interveners, plaintiff appeals. Affirmed. ey as alleged in the complaint, but that the goods had not been delivered, and that the persons who deposited the money had demanded the return thereof; that it holds the money for the persons entitled thereto, and is ready and willing to pay the same to the party legally authorized to receive it. Thereafter J. H. Smith, W. H. McPhee, E. R. Peoples, and J. E. Doherty intervened in the action, and alleged that they, as a committee of citizens of the town of Fairbanks, had been authorized to collect money to purchase materials for the construction of a bridge across the Chena river in said town; that on August 15, 1906, they entered into a contract with the plaintiff, whereby the plaintiff agreed to deliver at the town of Fairbanks, before the close of navigation of that year, two reels each of 800 feet galvanized suspension bridge cables, 11⁄2 inches in diameter, and the other articles named in the complaint, for the price of $1,900, plus the freight from Seattle to Fairbanks, payable on delivery of the goods at Fairbanks; that on the same day an escrow agreement was entered into, and $1,900 was paid by them into the bank, to be paid to the plaintiff upon the arrival of the goods at Fairbanks; that the plaintiff failed to deliver the goods as agreed upon, or at all, and subsequently the interveners demanded a return of the money deposited with the bank. The plaintiff for reply to the answer in intervention, after denying certain allegations of the answer, alleged that the contract of sale was in writing as contained in the escrow agreement; that the goods were delivered as agreed upon; and that the interveners had neglected and refused to pay the freight and storage charges, amounting to $1,250, upon the goods after they left Seattle. Plaintiff prayed for a judgment against the interveners in the sum of $1,250. Upon these issues the case was tried to the court without a jury. The court made findings of facts substantially in accordance with the allegations of the answer in intervention, and entered a judgment in favor of the interveners for the $1,900 held by the bank, and dismissed the plaintiff's complaint. The plaintiff has ap- by authorize the Washington-Alaska Bank pealed. We think there is no substantial dispute upon the facts. It appears that in August, 1906, the citizens of Fairbanks, Alaska, desired to construct a bridge across the Chena river in that town; that for such purpose the citizens selected the interveners as a committee to purchase materials for the bridge. This committee desired two reels of suspension bridge cable, each cable 800 feet in length and 11⁄2 inches in diameter. They also desired the other articles named in the complaint. The plaintiff's agent, George H. Abbott, was upon the ground, and desired to furnish the articles named. He represented that he could not furnish the 11⁄2-inch cable at once, because it was not held in stock by the plaintiff, but that the plaintiff had on hand the required amount of 24-inch cable, which could be shipped at once and would be sold at the price of the 11⁄2-inch cable. The plaintiff's factory was located at Trenton, N. J., but it maintained a branch office at Seattle in this state. The committee desired the goods before the close of navigation in the fall of 1906, and, in order to obtain the same at that time, agreed to accept the 24-inch cable, and, in addition to the purchase price of $1,900, agreed to pay the freight from Seattle to Fairbanks. It was then also agreed that the purchase price, $1,900, should be collected from the citizens and placed in the Washington Alaska Bank at Fairbanks. The money was collected, and was deposited in the bank with the following escrow agreement: "The sum of nineteen hundred ($1,900) dollars herewith deposited in deposited in escrow with the Washington-Alaska Bank of Fairbanks, Alaska, is for the payment of two (2) reels of eight hundred (800) feet each of galvanized suspension bridge cables; twelve (12) Crosby wire rope clips and four (4) inch (4") turnbuckles. Said nineteen hundred ($1,900) dollars to be forwarded immediately upon arrival of above mentioned equipment to John A. Roebling's Sons Company, Seattle, by the Washington-Alaska Bank. mutually understood and agreed by and between George H. Abbott, representing John A. Roebling's Sons Company, and the committee whose names are signed hereto as representing the Citizens' Committee who act as purchasers of aforesaid material, that the sum of nineteen hundred ($1,900) dollars is in payment for said material delivered in Seattle, Washington, and that all freight charges between Seattle, Washington, and Fairbanks, Alaska, are to be defrayed and paid by said committee upon arrival of material in Fairbanks. Above specified material is consigned to the Washington-Alaska Bank, and will be turned over to said committee on its arrival in Fairbanks upon payment of freight charges as set forth in the foregoing: And I, George H. Abbott repre It is of Fairbanks, to act as custodian of said nineteen hundred dollars, and to forward the same to John A. Roebling's Sons Co. on arrival of material in Fairbanks. Signed this 15th day of August, 1906. For the buyers: Citizens' Committee of Fairbanks, Alaska. J. E. Doherty, W. H. McPhee, E. R. Peoples, and J. H. Smith. For the seller: John A. Roebling's Sons Co., by George H. Abbott." bott." The goods arrived at the Seattle office too late to be shipped in the fall of 1906. 1906. On March 17, 1907, the committee, through its secretary, wrote the following letter to the plaintiff's Seattle office: "John A. Roebling's Sons Co.-Gentlemen: Your Mr. George H. Abbott entered into an agreement with our Citizens' Committee, Aug. 15, 1906, to deliver at once two reels of eight hundred feet each of bridge cable, twelve Crosby wire rope clips and four turnbuckles. Nineteen hundred dollars was placed in escrow with the Washington-Alaska Bank to be turned over to your firm upon the arrival of said cable. Your Mr. Abbott informed us he wired you and that you had for immediate shipment the cable in two inch in diameter, but was out of one and one-half inch-the kind desired with steel core. We agreed to accept the two inch cable as it was all you had on hand at that time, but it was to be shipped at once so as to arrive here before the close of navigation. Now we have never heard a word from you or your agent Mr. Abbott; nor have we seen sight of the cable; this does not look good to us from a business standpoint, and now want that you should ship us the two cables one and one-half inch in diameter as we originally wanted, and want it shipped by May 25th, via Dawson, so as to arrive here on first steamer. Hoping you will see to this matter at once, we remain, Truly yours, Joseph H. Smith, Sec. Lacey Street Bridge Fund." This letter was received at Seattle on March 8, 1907, and was answered as follows: "Jos. H. Smith, Esq., Lacy Street Bridge Fund, Fairbanks, Alaska-Dear Sir: We beg to advise you that the order placed by you will leave Seattle on the first boat sailing for Dawson. We advised Mr. Abbott by cable his order had been received too late to ship last fall. We have had the material in stock all winter. and should have liked very much to have shipped in time for your requirements. The conditions are such however it was absolutely impossible for us to do other than we have done. Thanking for the order and trusting you will receive the same in good order, we beg to remain, Yours very truly, John A. Roebling's Sons Co., W. F. Richardson, Mgr." Instead of shipping the 12inch cables as ordered, the plaintiff shipped the 24-inch cables, which arrived at Chena, Alaska, about July 1, 1907. Chena is about 10 miles distant from Fairbanks. The com at that time, and refused to pay the freight | of sale. It is apparent upon the face of thereon, which was about $400 in excess of this writing that it was only for the purpose what the freight on the smaller cables would of defining the nature of the deposit and have been. The committee thereupon de- the duties of the bank where the money was manded of the bank the return of the mon- deposited, and that such agreement contained ey deposited therein. The cables were nev- only such part of the contract of sale which er delivered at Fairbanks, but remained in had theretofore been entered into between storage at Chena, Alaska. the appellant and the committee as was necessary to show the purpose of the deposit and the duties of the bank with reference thereto, and was not intended to contain all the terms of the contract of sale. The evidence clearly shows that the contract of sale between the appellant and the committee as originally made rested in parol. It was therefore susceptible of proof by parol. The only written evidence of the terms of the contract of sale is what appears in the escrow agreement and the letters above copied, which were all written after the contract was made. These writings do not vary the terms of the contract as relied upon by the respondents, and there was no attempt to vary or contradict these writings by parol. We are satisfied from the evidence that the appellant failed to deliver the goods within the time or of the size agreed upon, and that the trial court found correctly upon these points. It is clear that the plaintiff did not deliv. er the 24-inch cables at Fairbanks in the fall of 1906. These cables were not shipped from Seattle until after May 1, 1907. Hence, if the contract was that the large cables should be delivered during the fall of 1906, plaintiff did not comply with the terms of its contract. The letter of March 17, 1907, from the defendant to the plaintiff, was a clear rescission of the order for the 24-inch cable. This letter stated: "We now want that you ship us the two cables one and one-half inches in diameter as we originally wanted and want it shipped by May 25, via Dawson, so as to arrive here on the first steamer." In answer to this letter no mention is made of the fact that larger cables would be shipped, but it was stated: "We beg to advise you that the order placed by you will leave Seattle on the 1st boat sailing for Dawson." Upon the receipt of this letter the defendant had a right to assume that the smaller cables which they desired would be shipped. If the contract was for delivery of the larger cables at Fairbanks during the year 1906, the committee certainly had a right to countermand that order when such cables were not delivered as agreed, and when the plaintiff had not parted with possession. They did so counter-order. mand the order on March 17, 1907. When the larger cables were shipped in 1907 and arrived at Chena within 10 miles of Fairbanks, the interveners were also within their legal rights when they refused to accept the larger cables after having ordered the small er ones. It is argued by the appellant that the terms of the contract between the appellant and the committee were stated in the escrow agreement, and that oral evidence was not admissible to vary or contradict this agreement. Under the terms of this escrow agreement the $1,900 was to be paid to the appellant "on arrival of material at Fairbanks." The material never reached Fairbanks. It is still at Chena, 10 miles distant therefrom, so far as the record in this case shows. This escrow agreement is silent upon the size of the cables and upon the time of delivery. It could not reasonably be contended that, if the appellant had shipped the cables so small or so large as to be utterly useless to respondent, appellant could still recover the price agreed upon. It is apparent that the size of these cables had much to do with fixing the price and the freight charges, and that this was a material part of the contract It is argued that the court erred in allowing $40 as costs of taking certain depositions. It appears by affidavit to the cost bill that $100 was actually expended therefor. We find nothing in the record to indicate that the sum allowed by the court was not the necessary expense of taking the depositions, and must therefore decline to disturb this No error appearing in the record, the judgment is affirmed, with costs to the respondent interveners and also to the respondent bank. RUDKIN, C. J., and DUNBAR, PARKER, and CROW, JJ., concur. MCMILLAN et al. v. WRIGHT. (Supreme Court of Washington. Nov. 30, 1909.) 1. PUBLIC LANDS (§ 135*) - ASSIGNMENT OF RIGHTS EVIDENCE. Evidence held to show that, under an agreement, a person filing on public land was to assign a part of the land to the other after the required improvements had been made, and he patent, and not that he was to transfer his had obtained a clear title by final proof and rights as entryman. [Ed. Note.-For other cases, see Public Lands, Cent. Dig. § 360; Dec. Dig. § 135.*] 2. PUBLIC LANDS (8_139*)-ARID LANDSCONTRACTS AGAINST PUBLIC POLICY. § 4. 28 Stat. 422 [U. S. Comp. St. 1901, p. The Carey act (Act Aug. 18, 1894, c. 301, 1554]) authorizes the Secretary of the Interior to grant to public land states arid land for settlement by actual settlers, and that as fast lands are irrigated and occupied by actual setas any state furnishes proof that any of the tlers patents shall be issued to the state or its |