(44 Wash. 264)

BIRD v. WINYER et al. (Supreme Court of Washington. Nov. 1, 1906.)

1. JUDGMENT-RES JUDICATA — IDENTITY OF SUBJECT-MATTER.

A judgment in an action to quiet title to that portion of the land described in a patent which was located in P. county at the time the action was commenced is not res judicata in a subsequent action to quiet title to that portion of the land described in the same patent which was in K. county at the time the former action was commenced, but was in P. county at the time the subsequent action was commenced by reason of a change in county lines, the subject-matter of the two actions not being the

A judgment in a former action was not pleaded by the successful party, but the defeated party directed the court's attention to it and asked the court to overrule it. The successful party was justified in relying on the former judgment in preparing his case. Held that, if the court should reverse the judgment in the subsequent action and remand, it would only be necessary for the successful party in the trial court to plead the former judgment to defeat any conclusion which the court might reach, and therefore the judgment would not be disturbed.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by George Bird against Henry Winyer and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Chas. Bedford, for appellants. Geo. T. T. Reid and Jas. J. Anderson, for respondent.

PER CURIAM. The complaint in this action alleges that the plaintiff was formerly a member of the Puyallup tribe or band of Indians residing on the Puyallup Indian reservation in this state; that on the 30th day of January, 1886, there was allotted and patented to him, as the head of a family consisting of himself and wife, certain lands particularly described in the complaint; that such allotment was made and patent issued pursuant to the sixth article of the treaty between the United States and the Puyallup and other Indians concluded on the 26th day of December, 1854; that said land is timber land, wholly unfit for cultivation, and is unoccupied; that the plaintiff and Mary Bird, his wife, resided on other lands embraced in said patent until the death of the latter on the 15th day of August, 1887; that said Mary Bird left surviving her two sons by a former marriage, both of whom were adults at the time of the issuance of the aforesaid patent, and lived with

their families on allotments of their own; that the defendants herein are the heirs at law of the said Mary Bird, deceased, and as such claim an interest in the lands and premises described in the complaint; that such claim is without warrant or authority of law; and that the restrictions upon the alienation of the lands described in said patent were removed on the 3d day of March, 1903. A copy of the patent is attached to the complaint, and the prayer is for judgment removing a cloud and quieting title. The answer denies that the claim of the defendants is without right, and alleges affirmative, ly that the Interior Department of the United States in dealing with the Puyallup Indians under the above treaty has always construed said treaty and the patents issued thereunder as conveying the legal title to the lands described in each patent to the individuals therein mentioned as a family, in equal portions, the husband and wife taking their portion as community property; that pursuant to said treaty and the act of March 3, 1893, the President of the United States appointed a commission of three persons, whose duties and instructions under the law were to ascertain and determine the ownership of the above lands and other lands on said reservation; that said commission did proceed to ascertain and determine the ownership of said lands, and found and determined that the defendant Henry Winyer was the owner of a one-fourth interest therein; that Frank Winyer, for whose estate the defendant McDonald is administrator, was the owner of a one-eighth interest therein, that one Lilly Winyer, since deceased, was the owner of a one-eighth interest therein, and that the plaintiff herein was the owner of a onehalf interest therein; that such finding and determination was reported to the Secretary of the Interior and by him approved; and that a large portion of the lands on said reservation have been sold, and more than $100,000 in money paid out and distributed under said treaty and patents construed as aforesaid. The court sustained a demurrer to the affirmative defense in the answer, found the facts as alleged in the complaint and the affirmative defense, and entered judgment according to the prayer of the complaint. From this judgment, the defendants appeal.

The case of Bird v. Winyer, 24 Wash. 269, 64 Pac. 178, is decisive of this case, but the appellants maintain that the case cited was overruled in part by Guyatt v. Kautz (Wash.) 83 Pac. 9, and should now be overruled in its entirety. They further maintain that the judgment in the former action is not res adjudicata in this. The only difference in the two cases lies in the fact that the former action was brought to quiet title to that portion of the land described in the patent, which was in Pierce county at the time that action was commenced, whereas the present action is brought to quiet title to that por

tion of the land described in the same patent which was in King county at the time the former action was commenced, but is now in Pierce county by reason of a change in county lines. The subject-matter of the two actions was therefore not the same, and the former judgment is not res adjudicata here. However, the parties were the same, the issues were the same, and the evidence that would sustain or defeat the former action would also sustain or defeat the present. It was adjudged in the former action that Mary Bird, the deceased wife of the respondent, had no interest in the lands described in said patent at the time of her death, and that the defendants in said action as her heirs at law took nothing and could claim no interest therein, and, under all the authorities, such former judgment operates as an estoppel against the claim of title asserted by the defendants in this action, they being the same or in privity with the defendants in the former action. Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Freeman on Judgments (4th Ed.) § 253 et seq.

We recognize the fact that the judgment in the former action is not technically before us as it was not pleaded, but the appellants have directed our attention to it and ask us to overrule it. Should we overrule that case, reverse the judgment in this, and remand the cause for further proceedings, it would only be necessary for the respondent to bring the former judgment properly to the attention of the trial court in order to defeat any conclusion we might reach. It may be claimed that we should direct a final judgment in favor of the appellants on reversal, but, inasmuch as the respondent was justified in relying upon the former opinion of this court in preparing and submitting his case, we would not be justified in adopting such a course. If the case should be reversed at all, it should be remanded for further proceedings in the court below. The only effect of a reversal would be to establish a rule affecting the rights of parties not now before the court, and this we decline to do.

The judgment in this case is therefore affirmed on the authority of Bird v. Winyer, supra, without expressing any opinion on the questions presented and discussed in the appellants' brief.

(44 Wash. 261)

NORTHWESTERN LUMBER CO. v. CITY OF ABERDEEN.

(Supreme Court of Washington. Nov. 1, 1906.) 1. LIMITATION OF ACTIONS-MUNICIPAL CORPORATIONS WARRANTS-SPECIAL FUNDSPAYMENT.

An action on warrants drawn on a special street improvement fund, brought within three years after actual notice to plaintiff that the city had diverted the fund by paying subsequent warrants drawn thereon, is not barred by limitations plaintiff not being required to take notice of the records or misappropriation of such funds, especially within the time the city might collect the funds.

2. SAME-NOTICE--EVIDENCE.

Where the only city record showing a misappropriation of a street improvement fund was the warrant register, a letter written by plaintiff to the city, reciting that plaintiff by examination of the records had learned that there was some money in the special funds subject to plaintiff's warrants and that the treasurer declined to make partial payments on any warrant, did not show that plaintiff, at the time the letter was written, had examined the warrant register and had knowledge of the misappropriation.

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by the Northwestern Lumber Company against the city of Aberdeen. From a judgment for plaintiff, defendant appeals. Affirmed.

R. E. Taggart, for appellant. Austin E. Griffiths, for respondent.

MOUNT, C. J. Respondent recovered a judgment for damages against the city of Aberdeen on account of certain special assessment warrants, because certain other warrants issued subsequently on the same fund had been paid out of order, leaving insufficient funds to pay the warrants held by respondent. The city appeals, alleging that the court erred in refusing to find that each of the causes of action set out in the complaint was barred by the statute of limitations and that there were prior warrants outstanding on one fund greater than the amount misappropriated from such fund.

There is no dispute in the testimony, and the trial court found that the respondent had no knowledge or information until the 25th day of November, 1902, that the city had misappropriated any of the money collected into the special assessment fund, but also found "that, at the time of the payment of warrants out of order as set forth in the complaint, such payments were recorded in the warrant register of said city, and that the warrant register was a public record of said city and at all times open to the inspection of said plaintiff, and that the defendant at no time concealed or misrepresented any of its transactions in relation to the payment of said warrants." The funds were collected and misapplied in 1891. This action was not begun until October 5, 1905, which was within three years after actual notice to the respondent that funds had been misappropriated. Appellant contends that, under the finding copied above, the court should have dismissed the action, because the respondent was bound to take notice of the public records; but we held in Hemen v. Ballard, 40 Wash. 81, 82 Pac. 77, where this same question was presented, that, if the action was begun within three years after actual notice, it was in time. This rule, of course, is based upon the fact that the city treasurer is required to give notice to warrant holders when funds are in his hands to be paid out upon warrants issued against such funds, and that warrant holders are therefore not required to take

notice of the records or the misappropriation of such funds, especially within the time the city may under the law collect such funds into its possession. Potter v. Whatcom, 20 Wash. 589, 56 Pac. 394, 72 Am. St. Rep. 135; Gove v. Tacoma, 26 Wash. 474, 67 Pac. 261; New York Security & Trust Co. v. Tacoma, 30 Wash. 661, 71 Pac. 194; Gove v. Tacoma, 34 Wash. 434, 76 Pac. 73.

Appellant also contends that the respondent had actual notice in 1894, by reason of a letter dated April 19th of that year, which letter was written by the respondent to the city and contained this statement: "We learn, on examination of your city records, that there is money in some of your special funds on which we hold warrants, and that the warrants which we hold are next in order of payment, but that the money in these funds is not sufficient to take up any one warrant that we hold against such funds, and your treasurer declines to indorse a partial payment on any warrant; the reason given being that he would be without the necessary voucher to turn over to his successor in office on demand," etc. While this letter states that respondent had examined the city records, it does not say that respondent had examined the warrant register, which appears to have been the only record which showed the wrongful payment. Upon the positive statement of respondent's manager that this register was not examined, and that no notice of the payment of warrants out of order was had until 1902, we think the court was justified in finding as a fact that no notice was received by respondent until that time. We find no evidence in the record sufficient to justify the contention that there are prior warrants outstanding on the B. street fund, greater in amount than the money misapplied from said fund.

the first 75 feet of work, and that he, after he had quit work, finished the same on lines furnished by the superintendent, with the understanding that, if he did so, the work would be satisfactory. Held, to warrant a finding that the work done was satisfactory to the superintendent, authorizing the contractor to recover. 2. SAME-COMPLAINT-ALLEGATION OF PER

FORMANCE.

A complaint in an action for the balance due on a contract for the construction of a slope in a coal mine, which alleges that the owner accepted the work, sufficiently alleges that the work was performed to the satisfaction of the mine superintendent, as required by the contract.

[Ed. Note. For cases in point, see vol. 11, Cent. Dig. Contracts, § 1664-1670.]

3. APPEAL-PLEADING-AMENDMENT.

Where, in an action for the balance due on a contract for the construction of a slope in a mine, the evidence showed that the work was done to the satisfaction of the superintendent, as required by the contract, the Supreme Court on appeal will treat the complaint as amended to correspond with the facts, so that a defect in the complaint arising from its failure to allege that the work was performed to the satisfaction of the superintendent will not cause a reversal.

[Ed. Note. For cases in point, see vol. 3. Cent. Dig. Appeal and Error, §§ 3621, 3622.] Appeal from Superior Court, Lewis County; W. W. McCredie, Judge.

Action by Joseph Lang against the Crescent Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Ira A. Town and Maurice A. Langhorne, for appellant.

MOUNT, C. J. The respondent brought this action to recover a balance alleged to be due upon a contract for the construction of a slope in appellant's coal mine. The complaint sets out the contract, and alleges "that the plaintiff entered upon the performance of said work under said contract on the

ROOT, DUNBAR, CROW, and HADLEY, JJ., concur.

(44 Wash. 267)

LANG v. CRESCENT COAL CO. (Supreme Court of Washington. Nov. 1, 1906.) 1. CONTRACTS - ACTION EVIDENCE-SUFFICIENCY.

A contractor agreed to construct a slope in a coal mine to the satisfaction of the mine superintendent. When the slope had been constructed a distance of about 75 feet, the superintendent claimed that the same was not properly constructed. After some dispute the contractor stopped work. Thereafter it was agreed between the contractor, the owner, and the superintendent that the contractor should continue the work and finish the same on lines furnished by the superintendent, which was done, and the slope was completed on November 7th. No objections were made to the work until December 31st, when the owner notified the contractor that the work was not satisfactory to the superintendent. The work done after the first 75 feet was satisfactory. The contractor showed that the owner and superintendent agreed to accept

until the 7th day of November, 1904, when the same was completed, and that the said work was by the defendant and its agents accepted, and the same ever since has been and now is in the possession of the defendant, who, through its agents and employés. has worked and occupied the same; * * that said slope was sunk the distance of 350 feet, as provided in said contract." The complaint then alleges the amount due, after deducting certain payments. The contract contained the following clause: "It is understood and agreed that said work shall be performed under the direction and to the satisfaction of the mine superintendent of said second party, S. O. Ewing; provided, however, if any disagreement arises as to the character or completion of the work, it shall be referred to a competent mining engineer, to be agreed upon by the parties hereto." A demurrer was filed to this complaint, and overruled, and answer was then filed, admitting the contract, but alleging that the work was not performed to the satisfaction of the defendant's superintendent,

and as an affirmative defense alleging that the respondent failed and refused to construct said slope as required by said superintendent, but so constructed the same that it contained a crook or curve, to defendant's damage in the sum of $1,500. The answer also alleged that the defendant had overpaid the plaintiff in the sum of $524.27, and prayed for judgment against the plaintiff for the amount of damages and excess payment above stated. The reply denied the allegations of the answer. The cause was tried to the court without a jury. Findings were made in favor of the plaintiff, and a judgment entered for the amount of $1,434.53.

The appellant assigns error of the trial court in overruling the demurrer to the complaint, and in admitting certain evidence tending to show a waiver of the terms of the contract, and in making certain findings, and in refusing to make findings proposed by the appellant. The respondent has not appeared in this court, and has not filed a brief in the case. Upon a careful examination of the record we find that the principal issue tried was whether the superintendent was satisfied with the work as it progressed. The undisputed evidence is that the superintendent was present from the beginning of the work; that, when the slope had been constructed a distance of about 75 feet, the said superintendent called the attention of respondent to the fact that the slope was not being constructed on a straight line, but was making a bend to the right. After some dispute between the respondent and the superintendent as to the proper way to construct the slope to a straight line, the respondent stopped the work and removed his tools from the slope. The superintendent thereupon notified the respondent that they should employ a mining engineer under the terms of the contract to adjust the dispute. Respondent refused to do this. Thereupon the president of the appellant intervened, and it was finally agreed between respondent, the president, and superintendent of appellant company that respondent should continue the work and finish the same upon lines furnished by the superintendent, which was done, and the slope was completed on November 7, 1904. No objections were made to the work or the manner in which it was done until December 31, 1904, when the appellant notified respondent that the work was not satisfactory to the superintendent, because the slope was not constructed on a straight line, and respondent was directed to repair the slope. There seems to be no contention that the work done after the first 75 feet was not satisfactory, but the appellant contends that the superintendent was not satisfied with the first 75 feet of work, and that the appellant did not agree to accept that part of the work, and therefore the respondent should not recover. Respondent, on the other hand, showed in substance that the president and superin

tendent of appellant company did agree to accept the first 75 feet of work, and that respondent, after he had quit work, went back and finished the same upon lines furnished by the superintendent, with the express understanding that, if he did so, the work done would be satisfactory. It will thus be seen that there was a direct issue of fact upon this question whether the work was satisfactory to the superintendent. We think the trial court correctly found with the respondent upon the evidence.

Appellant contends that the complaint is not sufficient because it does not directly allege that the work was performed "to the satisfaction of the mine superintendent." Several authorities are cited to the point that, where suit is brought upon a contract requiring work to be done to the satisfaction of another, it is necessary to allege that fact. We think the allegation that the defendant accepted the work is sufficient to bring the complaint within the rule. But, assuming that the complaint was deficient in this respect and that the court should have sustained the demurrer upon this ground, still under our liberal practice this is not sufficient for a reversal of the case, because, had the demurrer been sustained, the respondent should have been allowed to amend. Evidence was introduced tending to show that the work was done to the satisfaction of the superintendent, and, as above stated, this was the principal issue tried in the case. Upon this appeal it is our duty to treat the complaint as amended, if necessary, to correspond with the facts proved. We conclude, therefore, that, if the trial court erred in overruling the demurrer, such error is not reversible.

The other assignments of error are disposed of by the ones decided above.

The judgment appears to be right, and is therefore affirmed. No costs will be allowed to respondent on this appeal.

ROOT, DUNBAR, CROW, RUDKIN, FULLERTON, and HADLEY, JJ., concur.

(44 Wash. 246) STATE ex rel. SHORES et ux. v. ROSS, Public Lands Com'r.

(Supreme Court of Washington. Oct. 30, 1906.)

1. PUBLIC LANDS-LAND OF STATES-SALEREVIEW OF PROCEEDINGS-FRAUD.

1 Ballinger's Ann. Codes & St. § 2198, provides that the Board of Appraisers or Commissioner of Public Lands may review and reconsider any of its official acts relating to lands of the state until such time as the lease or contract for any of such lands shall have been made, executed, and signed by the Commissioner of Public Lands, or by the board itself and Pierce's Code 1905, § 8178a (Laws 1903, p. 113, c. 79), declares that any sale or lease of state lands made by mistake, or not in accordance with law or made by misrepresentation, shall be void. Held that, where affidavits alleging fraud in the sale of certain tide lands were presented to the Board of Pub

lic Land Commissioners, after the execution of a deed, but before its delivery, the board had power to suspend the delivery of the deed, and investigate the charges.

2. MANDAMUS-ISSUE OF FACT-TRIAL.

Where, on an application to the Supreme Court for mandamus to compel the delivery of a deed to certain state land which delivery had been suspended because of charges of fraud in the sale, relator denied the facts alleged to constitute fraud, the case would be sent to a superior court for trial of such issue.

[Ed. Note. For cases in point, see vol. 33, Cent. Dig. Mandamus, § 386.]

Rudkin, J., dissenting.

Application by the state, on relation of E. A. Shores and wife, against E. W. Ross, as Commissioner of Public Lands of the state. Case remanded to the superior court of Pierce county for trial of an issue of fact.

Wm. H. Pratt, for plaintiffs. A. J. Falknor, for respondent.

ROOT, J. This is an application for an original mandamus on the part of the relators to require respondent to deliver to relators a deed to certain tide lands near the city of Tacoma. The relator, E. A. Shores, made an application for the purchase of these tide lands on the 9th day of January, 1906, making the necessary legal deposit. Said application stated that said lands were not occupied, and that there were no improvements thereon. Thereafter, a certificate of appraisal of the land was made out and filed, and the land ordered sold. The usual notice of sale was given, as required by law, and the land sold to the relator, E. A. Shores, at public auction, on the 30th day of June, 1906, for a little more than the appraised valuation. The auditor of Pierce county made his report on the sale, and said relator paid the purchase price, and the Board of State Land Commissioners confirmed the sale. On the 29th day of August, 1906, a deed was regularly made out and signed by the Governor, and attested by the Secretary of State, with the seal of the state attached thereto. Before said deed was delivered to relators, affidavits were filed in the office of the Commissioner of Public Lands, alleging that there were valuable improvements upon said tide lands, and it was charged that said relator had entered into a collusion with other parties to stifle bidding at the time said lands were sold at public auction. Thereupon the said Land Commissioner, this respondent, referred said affidavit and the application, and all the records and matters thereto appertaining, to the Board of State Land Commissioners, which board on the 17th day of September, 1906, entered an order disapproving of said sale, and directing the Commissioner of Public Lands to cause a reinspection of said lands to be made.

In answer to the application for the writ, respondent sets up all of these transactions, and maintains that it is his duty, in order to

protect the state from fraud and imposition, to decline to deliver said deed, and that, under the circumstances, he or the state board should withhold said deed until an investigation can be made as to the charges of fraud and misrepresentation preferred against the relator who made the application. Relators insist that neither the respondent, nor the Board of State Land Commissioners, has any jurisdiction to make such an investigation, that their power over the subject-matter ceased when the deed was signed and attested by the Governor and Secretary of State. They insist that the power of these officials is thus limited by section 2198 of 1 Ballinger's Ann. Codes & St., which reads as follows: "The Board of Appraisers or Commissioners, or Commissioner of Public Lands, shall have the right to review and to reconsider any of its official acts relating to lands of the state until such time as a lease or contract for purchase of any of said lands shall have been made, executed and signed by the Commissioner of Public Lands or by the board itself."

Respondent contends that the expression "made, executed, and signed," is equivalent to the words "made, executed, and delivered," which are commonly found in deeds of conveyance, and urges that the deed is not "made and executed" until it is drafted, signed, acknowledged, and delivered," and that it was not the intention of the Legislature to deprive the officers of the state of the power to deal with the subject as long as the deed was not actually delivered. Whether this contention of respondent can be upheld in its entirety, we are not now called upon to decide; but we think that his position is tenable, to the extent that the Land Commissioner or the Board of State Land Commissioners may at any time refuse to deliver a deed when matters are brought to his or their attention which give reason to believe that said deed is being obtained by means of fraud. Fraud vitiates whatever it touches, and relators can insist upon no action by state officials when the grounds of their demand are based upon fraudulent transactions. It is the duty of these state officers to protect the state against imposition. Laws 1903, p. 113, c. 79 (Pierce's Code 1905, § 8178a) provides: * ** Any sale or lease of state lands made by mistake, or not in accordance with law, or obtained by fraud or misrepresentation shall be void and the contract of purchase or lease issued thereon shall be of no effect, but the holder of such contract or lease shall be required to surrender the same to the Commissioner of Public Lands, who shall, except in the case of fraud on the part of the purchaser, cause the money to be refunded to the holder thereof. ***" If the deed to these tide lands had been delivered after the respondent was reliably informed that the application and bidding were fraudulent, to the detriment of the state, it would be the duty of the