or the other of the parties, and determine the truth of the matter. It has always been held proper for the court to instruct the jury to consider the probabilities of the truth of the evidence. While this instruction calls attention to the particular features of the case, and to the particular phases to be determined as to the probability or improbability of their truth, we cannot say that it is an unfair comment upon the evidence such as is prohibited by our Constitution, or an argument in favor of either the one or the other of the parties, unless it be in favor of the appellant. come, and that before the contract could be executed by the parties it would be necessary to obtain the consent of the probate court of Massachusetts to the conversion of the stock of G. Henry Whitcomb into preferred stock, these were matters which the jury might consider in passing upon the probability of such a contract having been made by the defendants-the probability of their having agreed to pay plaintiff $10,000 after having obtained the consent of the Denny Company to enter into such contract and before the contract was actually closed between the parties by the overcoming of whatever difficulties may have been in the [7] 6. It is alleged that the court erred in way; and, in passing upon the probability giving the following instruction: of the truth of the claim of the plaintiff "Unless the minds of both parties actually that it was to receive $10,000 for the servmeet in a present agreement, there is no contract. ices in inducing the Denny Company to en-less you find from the evidence that the negotiaAnd I instruct you, therefore, that, unter into any such proposed contract, the jury tions between the parties in this case did reshould consider whether it was probable sult in an actual present agreement, as disthat appellant would render the services tinguished from a proposed proposition to be considered in the future, you must find a verwhich the jury might find appellant to have dict for the defendant." rendered, if it was only to be compensated in the event the parties to the proposed contract should actually consummate it. Appellant contends that this instruction singles out the circumstances claimed by respondent to tend strongly to prove his contention on the facts, and amounted to an argument on the part of the court in favor of respondent. It does not so seem to us. It would seem to us that this instruction also was much more favorable to appellant than to respondent. It drew the attention of the jury to the probability of the difficulties in the way of procuring the consent of the Denny Company to the particular terms demanded by respondent, if made, and of procuring the consent of the probate court of Massachusetts to the conversion of the stock of G. Henry Whitcomb into preferred stock, as bearing upon the probability of defendant agreeing to pay plaintiff a commission of $10,000. It is true it takes cognizance of the theories of both parties to the case, as is always proper where the theories of both parties find any justification in the law. The jury were further told in this instruction that they were to consider the probability of the truth of the claim of plaintiff that it should receive $10,000 for its services in inducing the Denny Company to enter into the proposed contract-whether or not it would have rendered such services as the jury might find it had rendered through Ewing, and going to "The contract which plaintiff claims was made the expense that it had gone, if it was only by the defendants, to pay the plaintiff a comto be compensated in event the parties to mission, was made, if at all, orally, in conversation between the parties, and was not reduced to the proposed contract should actually con- writing. The court instructs you in order for summate it and carry it out. In most cases there to be a contract the minds of the parties where the evidence is in sharp conflict and must meet; that is to say, they must reach an is close, it is advisable for the trial court actual present agreement to which they both in to direct the jury's attention to the proba-cient that they come to an understanding as to fact agreed to be then bound. It is not suffibilities of the case and to the circumstances the terms of a contract which either one or and inferences surrounding the parties in the case, in order that they may properly weigh the evidence of the parties, and in a way put themselves in the position of one It is insisted that this instruction was erroneous and misleading in that it confused the meeting of minds upon the broker's contract of employment with the meeting of minds upon the purchase and sale of the stock; that under the evidence the jury could not fail to be misled by this instruction. It is true that the agreement for the broker's employment was in a way separate from the proposed contract for the purchase and sale of the stock; but it was dependent upon it. The purchase and sale of the stock upon certain terms was a part of the broker's contract of employment. There was no dispute and could be no dispute as to what the terms of the proposed purchase and sale of the stock were. They were set forth in the written memorandum. But even that was not an executed agreement. It was unexecuted both in its form and in its performance. It was a proposed agreement. It was spoken of by Mr. Ewing in one of his letters as a tentative agreement. He was employed, as he alleges, to bring about the consummation of that agreement, and he says that it was agreed that, if he did bring it about, he was to receive $10,000. Again, however, the instruction excepted to is not the whole of the instruction upon that subject. That part of the instruction excepted to was preceded by the following instruction given by the court: both parties may be willing to enter into in the future after further consideration, nor is it even sufficient that one of them intends or understands that the arrangement is intended to be binding at that time." SCHWABACHER HARDWARE CO. v. A. W. (Supreme Court of Washington. March 7, It, therefore, seems clear that the instruc- ity of the witness Ernest M. Whitcomb a tion complained of, taken in its entire setting, question of law rather than one of fact for is an instruction referring to the identical the jury. In considering such credibility oral contract of employment alleged between and the weight to be given to the testimony of appellant and respondent. It certainly is the this witness, the jury had the right to conlaw that a party to a contract cannot recover sider any fact which in their judgment affectuntil his contract is performed, or, in other ed such credibility or weight. Being a queswords, until his right of action has accrued. tion for the jury, counsel was within his It certainly was correct for the court to in- rights in commenting as he did when stopped struct the jury that, "unless you find from by the court. the evidence that the negotiations between the parties in this case did result in an actual present agreement," the understanding of one party alone would not make a contract. Here, again, there is a controversy between the chief witnesses to the transaction, Mr. Ewing and Mr. Ernest Whitcomb, as to whether a present binding contract was then made. There is testimony on the part of Ernest Whitcomb and the lawyer in New York who drew the written memorandum, who were the only ones present beside Mr. Ewing, to the effect that Mr. Ewing insisted upon some kind of writing being given to him, as a basis of a future negotiation which Mr. Ewing desired to conduct with investors or financial people in order to finance the sale of the proposed preferred stock for the Denny Co. In other words, Mr. Ewing testified that certain things were said to constitute the agreement, while Mr. Whitcomb and the lawyer testified that the conversation was different. It was within the province of the jury to believe either version or to believe part of one and part of the other, and it was possible for them to arrive at the conclusion that the conversa tion that actually occurred did not make clear that the minds of the parties had then met in a present agreement. It was purely a question of fact to be submitted to the jury, and we think the instructions as a whole properly submitted it. We find no prejudicial error. We think the case was properly presented to the jury upon the issues between appellant and David Whitcomb. It may be reasonably inferred that the issues of fact were resolved by the jury in favor of respondent David Whitcomb upon the theory that he was not a partner of Ernest Whitcomb in the transaction involved, and did not authorize or ratify the agreement for the payment of the sum claimed for the brokerage services. We do not understand that the issues of fact as decided in this case are conclusive in any subsequent trial between the defendant Ernest Whitcomb and appellant. We express no opinion, however, as to the probability of the liability of Ernest Whitcomb for the payment of the commission under facts here shown. The judgment is affirmed. BILLS AND NOTES 82-ACCEPTANCE-CON- Where a bill of exchange was "accepted payable out of proceeds of Northwestern Fisheries Company contract when same become available," the application by the acceptor of a remittance constituting part of such proceeds to the amount due on the drawer's indebtedness to the acceptor, owing before the acceptance, was a violation of the acceptance; "available" meanof proof of a trade definition, while the holder ing merely "at one's disposal," in the absence of a conditional acceptance gets what the acceptance says he gets, even if exceeding the rights of the drawer. Notes, Cent. Dig. 88 143-148; Dec. Dig. For other definitions, see Words and Phrases, Department 2. Appeal from Superior Court, King County; R. B. Albertson, Judge. Action by the Schwabacher Hardware Company against the A. W. Miller Sawmill ComFrom a judgment for pany and another. plaintiff, the named defendant appeals. Af firmed. James Kiefer, of Seattle, for appellant. Trefethen, Grinstead & Laube, of Seattle, for respondent. BAUSMAN, J. Foss, indebted to the Hardware Company, drew it a bill of exchange on the Sawmill Company, which accepted thus: "Accepted payable out of proceeds of Northwestern Fisheries Company contract when same become available." The Fisheries contract was one in which, supplying Foss with material, the Sawmill Company had become his creditor in a large amount, whence it contends, notwithstanding this acceptance, it had a right to repay this previous debt first out of subsequent receipts. In a word, "proceeds" meant net proceeds, and "available" available to drawer upon a whole accounting. Foss was so embarrassed that the Sawmill Company was obliged to PARKER, MAIN, and FULLERTON, JJ., take over, through a new company, his entire business and complete the contract itself, and, after the acceptance, various sums being reMORRIS, C. J. I dissent. The court by ceived from the Fisheries Company, considerits ruling and instructions made the credibil-able was used in manufacture to make per concur. MORRIS, C. J., and MAIN, HOLCOMB, and PARKER, JJ., concur. formance, About this portion the Hardware | these views, and the judgment of the lower Company makes little contention. What it court is affirmed. particularly objects to is the Mill Company's applying a certain remittance to the amount due on the indebtedness to the Mill Company, owing before the acceptance. The lower court, finding no communications between the parties from which to determine what was actually intended, and that the Hardware Company was not apprised that prior indebtedness existed or would be first paid, held that this use of that remittance violated the acceptance. Judgment was accordingly rendered for plaintiff. In this the lower court was right. As for "available," that we can take only in its ordinary signification of "at one's disposal," since no trade definition is proved. Nor can we say that the holder of a conditional acceptance gets no more rights than the drawer, for he gets what the acceptance says he gets, even if more, and when the acceptance is ambiguous he gets what the court decides that the acceptance says. As to "proceeds," some authors go so far as to say that, when one uses a vague term like that in situations like these, he will be held to have meant gross receipts, from which even production expenses cannot be deducted; others, that the term means net proceeds above production cost or current advances on the under taking. Whichever of these two lines of decision is correct, there is no authority in either of them sufficient to justify us in extending the term so as to give, not only production expenses, but past indebtedness, a priority over the acceptance. As to this last situation, the best authority is against the acceptor. In United States v. Bank of Metropolis, 15 Pet. 377, 395, 10 L. Ed. 774, the Supreme Court of the United States held exactly against the acceptor's contention when the words of acceptance were, "Accepted on condition that his contract be complied with." Part of subsequent receipts was applied to extinguishment of prior balances created against the drawer upon the very contract referred to, and this the court found a violation of the acceptance, saying: "If one purpose making a conditional acceptance only, and commit that acceptance to writing, he should be careful to express the condition therein. He cannot use general terms, and then exempt himself from liability, by relying upon particular facts which have already happened, though they are connected with the condition expressed." The reasons for the rule there laid down are fully amplified in that decision, which has never been disapproved by that court and has been frequently followed by others. Coffman v. Campbell, 87 Ill. 98, 101; Seymour v. Lumber Co., 58 Fed. 958, 7 C. C. A. 593; Posey v. Denver Bank, 7 Colo. App. 108, 42 Pac. 684; Greene v. Duncan, 37 S. C. 239, 15 S. E. 956. We find nothing in Taylor v. Parish, 86 Wash. 141, 149 Pac. 635, inconsistent with DUVAL v. INLAND NAV. CO. et al (Supreme Court of Washington. March 7, 1916.) 1. CARRIERS 247(4)-CARRIAGE OF PASSENGERS TERMINATION OF RELATION. A steamboat passenger who, after the boat had reached his destination, remained on it in the smoking room about 30 minutes because his wife was elsewhere and "there was no use to go home," and also because he wished to talk to another passenger, thereby ceased to be a passenger, since the relation of passenger and carrier ceases when the passenger is made aware of the arrival at destination and has had reasonable time to get off the boat or train. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 991; Dec. Dig. 247(4).] 2. CARRIERS 361-EJECTING TRESPASSERCAUSE OF ACTION. The purser of a steamboat who willfully or wantonly assaulted a trespasser on the boat, who had become such by failing to leave within a reasonable time after landing, or who used more force in accomplishing the trespasser's ejectment than was reasonably necessary, was liable to such trespasser. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1409-1466, 1469, 1470, 1472-1476, 1478-1501; Dec. Dig. 361.] 3. CARRIERS 352-EJECTING TRESPASSERLIABILITY FOR EMPLOYÉ'S TORT. Where a purser of a steamboat, in ejecting a trespasser or passenger thereon, acted under the direct command of a police officer made under Rem, & Bal. Code, § 2365, and not as an officer of the boat, his conduct did not render the owner of the vessel liable. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1412-1414; Dec. Dig. 352.] 4. TRIAL 133(2)-REMARKS OF COUNSEL ACTION OF COURT. Error in bringing before the jury in an opening statement facts which are entirely irrelevant to the issues to be tried, and in deliberately interrogating witnesses concerning a matbe so highly prejudicial as not to be curable by ter which has no bearing upon the issues, may instructions to disregard. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. 133(2).] 5. FALSE IMPRISONMENT 29 MALICIOUS PROSECUTION 58(1)-ACTION-EVIDENCE In an action for malicious prosecution or false arrest it is competent to show the jury the fact that the arrest was published in a newspaper, though the article itself must be excluded, in the absence of showing that defendant was responsible in some degree for its publication, if it cannot be read without introducing matter that cannot be gleaned from the charge and proceeding thereon. [Ed. Note.-For other cases, see False Imprisonment, Cent. Dig. § 105; Dec. Dig. 29; Malicious Prosecution, Cent. Dig. § 119; Dec. Dig. 58(1).] Department 2. Appeal from Superior Court, Whatcom County; Wm. H. Pemberton, Judge. Action by Fred E. Duval against the In For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes land Navigation Company and another. | the station, where charges were filed against From a judgment for plaintiff, defendants each of them, and they were imprisoned for appeal. Reversed, and cause remanded, with direction. Bronson, Robinson & Jones, of Seattle, and Chas. A. Sather, of Bellingham, for appellants. W. P. Brown and C. A. Swartz, both of Bellingham, for respondent. MAIN, J. The purpose of this action was to recover damages for personal injuries and for false arrest and imprisonment. The defendants are Inland Navigation Company, owner of the steamship Kulshan, and G. W. Rimer, the purser upon that vessel. In the complaint there are two causes of action separately stated, one for personal injuries, and the other for wrongful arrest. After the issues were framed, the cause in due time was tried to the court and a jury. A verdict was returned in favor of the plaintiff in the sum of $750. Motion for a new trial being made and overruled, a judgment was entered upon the verdict. From this judgment, the defendants appeal. a few hours. Upon a hearing the respondent and Bauer were by the justice discharged. Thereafter the respondent caused the arrest of the purser, Rimer, upon the charge of assault in the third degree. The present action was brought for the purposes above indicated. [1, 2] It is claimed by the appellants that at the time of his ejectment from the boat the respondent had ceased to be a passenger, and that no duty was owing to him as such. The respondent claims that the relation of carrier and passenger continued until he had notice to leave the boat. The rule is that the relation of passenger and carrier ceases when the passenger is made aware of the arrival at the place of destination, and has had reasonable time to get off the boat or train. Imhoff v. Chicago & M. Ry. Co., 20 Wis. 344; Georgia & F. Ry. v. Thigpen, 141 Ga. 90, 80 S. E. 626; Chicago, K. & W. R. Co. v. Frazer, 55 Kan. 582, 40 Pac. 923. In 2 Hutchinson, Carriers, § 1016, the rule is stated thus: "As a general rule, it may be said that the relation of carrier and passenger does not cease with the arrival of the train at the passenger's has had a reasonable time and opportunity to destination, but continues until the passenger safely alight from the train at the place provided by the carrier for the discharge of passengers, and to leave the carrier's premises in the customary manner." "As a general rule, however, one who remains on the carrier an unreasonable length of time after reaching his destination, and being afforded a safe opportunity to alight, is no longer a passenger." In Chicago, K. & W. R. Co. v. Frazer, 55 Kan. 582, 40 Pac. 923, it is said: Inasmuch as there must be another trial of this cause, the facts will be only briefly stated, and without comment. On the evening of November 10, 1913, the respondent at Seattle, Wash., became a passenger on the steamship Kulshan, intending to go to the city of Bellingham, which was one of the termini of the steamship's route. After getting aboard the vessel he occupied a stateIf the passenger remains upon the train or room until about 6:30 the following morn-boat of the carrier an unreasonable time after ing, when he arose and went to the men's reaching his destination, and after being afsmoking room, which was in the bow of the forded a reasonable opportunity to alight, he In 4 R. C. L. p. boat below. When the boat called at Ana- is no longer a passenger. cortes that morning, one Charles P. Bauer 1043, § 497, it is said: came aboard for the purpose of going to Bellingham. The respondent and Bauer had not previously been acquainted, but engaged in conversation in the smoking room until the boat arrived at the dock in Bellingham, and for some 30 or 40 minutes thereafter. There were in the smoking room some eight or ten other passengers, two of whom were somewhat intoxicated. There was a bar in or adjacent to the smoking room, with one Kelly as bartender. When the boat arrived at the Bellingham dock, all the passengers upon the boat, including those in the smoking room, with the exception of the four mentioned, left the boat. The time which it took for the passengers to disembark consumed approximately 4 or 5 minutes. After the four which remained in the smoking room had been there for a period of 30 or 40 minutes, they were forcibly ejected therefrom; the respondent and Bauer in charge of the purser, and the other two in charge of a police officer who was in the employ of the Citizens' Dock Company. As to whether the four had been invited to leave and had a reasonable opportunity to do so prior to the ejectment the evidence is conflicting. After their ejectment they were taken by the police officer to "When he had been safely carried to his destination, and to a point which was then the end of the road, and had been afforded almost half an hour to leave the train, the company no longer owed him any duty as a passenger, nor was it under any obligation to him as such." In this case from the respondent's testimony it appears that he remained upon the boat, not because he did not know that it had landed, but because his wife was at Ferndale, and "there was no use to go home," and that he remained on the boat about 30 minutes for the reason stated, and for the further reason that he wanted to talk to Bauer. It is obvious that the respondent had ceased to be a passenger at the time he was ejected, and the jury should have been so instructed. The relation of passenger and carrier having ceased, the respondent became, in effect, a trespasser, and liability could only be predicated upon the manner of his removal. If he was willfully or wantonly assaulted, and more force was used in accomplishing his eject ment than was reasonably necessary, he had a cause of action. Houston & T. C. R. Co. v. Cohn, 22 Tex. Civ. App. 11, 53 S. W. 698; Fanning v. St. Louis Southwestern Ry. Co., 38 Tex. Civ. App. 513, 86 S. W. 354. It is true that in the cases cited the carrier was a railway company; but the principle must be the same when it is applied to a carrier by water. What may be the exact formula of the rule relative to the duty of a carrier to call out the stations so that a passenger may have an opportunity to know that the place of his destination has been arrived at it is not necessary here to inquire. The respondent knew that the boat had docked at Bellingham, and that the other passengers had departed from the boat. He remained aboard for a period of 30 or 40 minutes for purposes of his own. [3] Upon the question whether the purser, in ejecting the respondent and his companion from the boat, was acting in his capacity as an officer of the vessel, or was acting under the command of the police officer, Dodd, the evidence is conflicting. Under section 2365, Rem. & Bal. Code, it is the duty of every person, "after having been lawfully commanded so to do," to aid an officer in arresting any person, or in retaking any person who has escaped from lawful custody, or in executing any lawful process. Neglect or refusal to perform this duty in aid of the officer constitutes a misdemeanor. The court, in submitting this question to the jury, doubtless through inadvertence, left out of the instruction one clause which appears in the statute, thereby changing the meaning somewhat, and making the instruction hardly applicable to the facts in the case. If the purser was acting under the direct command of the police officer, and not as an officer of the boat, his conduct, whatever it may have been in the manner of the ejectment, would not render the owner of the vessel liable. During the opening statement to the jury counsel for the plaintiff stated over the ob jection of the appellants that the respondent had caused Rimer, the purser, to be arrested for the crime of assault in the third degree, and that he was tried before Judge Beach, a justice of the peace, and found to be guilty. During the course of the trial the respondent sought to show the arrest and conviction of Rimer. This was objected to, and the obJection was sustained. Subsequently, when Judge Beach was upon the stand, the matter was again inquired into, and the objection to the question sustained. Counsel for the respondent persisted in asking the questions upon the pretense that he desired to make a record, thus forcing the other side to object. When objection was made to the opening statement, the court stated to the jury that the statement was not evidence, and that it was only what counsel expected to prove. When the objectionable questions were asked, the jury were told not to consider the statements of counsel unless supported by the tes timony in the case. And in the formal charge to the jury they were told to consider the case solely upon the evidence which the court had admitted. [4] Rimer's arrest and conviction was totally irrelevant to any issue in the case. As we understand the respondent's brief, it is not claimed that it was relevant or material. But it is claimed that whatever error may have been committed in the opening statement and in the questions asked was cured by the court's instructions. Whether the error was cured it is not necessary here to determine, as upon a retrial the error will doubtless not occur. It may be said, however, that in bringing before the jury in an opening statement facts which are entirely irrelevant to the issues to be tried, and deliberately interrogating witnesses concerning a matter which has no bearing upon the issues, may easily be so highly prejudicial as not to be curable by instructions. [5] After the plaintiff was arrested there appeared in the Bellingham Herald, a newspaper published at Bellingham, in the issue of November 11th, an article relative to the arrest and the cause thereof. In an issue of the same paper of November 12th there appeared another article. These newspaper articles in their entirety were admitted upon the trial over the objection of the appellants. The articles contained more than could be ascertained from the complaint charging the offense and the proceedings had thereon. There is no evidence that the appellants were responsible for either of these publications, except in so far as they state facts which could be ascertained from the arrest and trial. In actions for malicious prosecution or false arrest, a newspaper article may be admitted for the purpose of showing the fact of publicity given to the charge. But if the article contains matters other than may be gleaned from the charge, and the proceeding thereon, it is not admissible, in the absence of a showing that the defendant in the action was responsible in some degree for its publica tion. In Baer v. Chambers, 67 Wash. 357, 121 Pac. 843, Ann. Cas. 1913D, 559, upon a similar question this court said: "Now in the case before us there is no evible for any of these publications, save in so far dence indicating that appellant was responsias they stated facts which could be ascertained from the complaint made before the justice charging the respondent with the crime, the In view of these facts, anything else contained warrant of arrest, and his arrest thereunder. in these publications, we think, would be irrelevant, though such additional matters might possibly be rendered relevant if shown to have been published at appellant's instance." If newspaper articles be so framed that they cannot be read without introducing objectionable matter, they must be excluded. But it is competent to have it appear before the jury that the fact of the arrest was published in the paper. In Fletcher v. Chicago |