Lucian Everts, for appellant.

L. L. McArthur, for respondents.

WATSON, C. J. This is a suit for specific performance. The contract sought to be enforced is in writing, and in the following form:

"This agreement made between D. A. Richards and Wm. A. Snider, as a settlement of all matters of difference between them up to this date. Witnesseth, that said Richards is to pay to said Snider the sum of fifty dollars in gold coin, and said Snider is to execute and deliver to said Richards a good and sufficient deed or conveyance of lot 8, sec. 19, 4 N., 35 E., as soon as patent is received from the United States, and said sum of $50 to be then due and payable, or if patent is issued therefor to said Richards, he is to deduct from said $50 whatever is paid to the United States for entrance money, and said Richards to be entitled to immediate possession of said lot 8; and both parties to do and perform every act necessary to carry out this arrange. ment, and obtain title from the United States.

"Dated March 21, 1873."

"D. A. RICHARDS "W. A. SNIDER.

After setting out the agreement, the complaint alleges "that the meaning of the words and figures in said agreement, to-wit, lot 8, sec. 19, 4 N., 35 E., is as follows, to-wit, lot 8, in sec. 19, in township 4 north, of range 35 east, Willamette meridian," and that said land is situated in Umatilla county, state of Oregon. It further alleges that appellant received possession of the premises from Snider, under said agreement, and continued in possession thereof until the respondent Crews made a forcible and wrongful entry thereon, on or about August 20, 1882, and that during the time he held possession he made valuable improvements to the amount of $100; that patent issued March 1, 1877, to Snider; that in October, 1882, Snider and his wife made Crews a deed to said premises for the expressed consideration of $1,000; that Crews took said deed with full knowledge of appellant's rights under said agreement; that on October 14, 1882, appellant tendered Snider the amount due upon said contract and demanded a deed for the land, and on the twenty-first day of the same month made a like tender and demand to Crews, but met with a refusal in both instances; and that between the making of such agreement and issuance of the patent, Snider left said county and remained absent therefrom several years after the patent had issued, and had never tendered a deed for the property or requested payment of the money due him under said contract. The respondents demurred generally, and the circuit court sustained the demurrer and rendered a decree dismissing the suit. The appeal is from this de

cree.

The appellant does not claim there is any mistake in the written agreement. If it is not sufficient in itself, in the light of the surrounding circumstances, alleged in the complaint and admitted by the

demurrer, to enable the court to determine the precise tract of land. intended to be disposed of, then the appellant must fail, and the decree of the lower court must be affirmed. The only description of the premises in the agreement itself is "lot 8, sec. 19." We can only conjecture as to the signification of what follows. It is not, however, a case of potent ambiguity, even with the description thus limited. Lot 8, in section 9, is a definite and particular tract of land under the general system of surveys adopted by the United States, and of which the courts will take judicial notice. The intention of the parties to the agreement to contract with reference to this particular tract and no other is equally certain. There is no uncertainty as to this intention on the face of the written agreement. It is clearly a case admitting of the identification of the subject of the contract by proof of extrinsic facts. Dougherty v. Purdy, 18 Ill. 206; Wilson v. Smith, 50 Tex. 365; Clark v. Powers, 45 Ill. 283. And the facts admissible and effectual for this purpose, which are alleged in the complaint, and admitted by the demurrer, seem ample. The possession alone, taken under the circumstances alleged, and in view of the stipulation for possession in the written agreement itself, should be held a sufficient. identification. Purinton v. N. Ill. R. Co. 46 Ill. 297; Parkhurst v. Van Cortland, 14 Johns. 15; S. C. 7 Amer. Dec. 427.

There is no ground for imputing laches to the appellant upon the allegations of the complaint in respect to the payment provided for in the agreement. It is expressly stipulated in the agreement itself that the $50 is to be due and payable when Snider executes the deed; and the complaint alleges that he has never tendered one. Some other considerations were suggested in the argument for the respondents, but it does not seem to us that they arise in the case. We cannot infer that the contract in question relates to land which Snider was endeavoring to obtain title to as a pre-emption or homestead claim. There is nothing in the complaint or the written contract suggesting such a thing.

The inadequacy of price, which is also made a ground of objection, is not shown. The amount to be paid by the appellant seems to be the balance ascertained to be due upon a general settlement, including other matters besides the land.

We are satisfied it was error to sustain the demurrer, and the decree of the circuit court must therefore be reversed.

SUPREME COURT OF WASHINGTON TERRITORY.

(2 Wash. T. 25)

CITY OF SEATTLE v. BUSBY.

Filed July, 1880.

Where the time for settlement of a bill of exceptions is not fixed by the court it should be agreed to by stipulation, and, in such case, a failure to name the hour is imputable to both parties.

It is only necessary to set out in the bill of exceptions so much of the evidence as is necessary, under the circumstances of each case, to explain it.

Where injuries result to a private citizen by reason of the negligent grading of a street by the agents of the municipal corporation the city is liable therefor.

A contractor doing the grading under the direction of the city surveyor is not an independent contractor, and the surveyor is the servant of the city.

Where an instruction asked for is substantially given, but in different language, and no injury results therefrom, there is no error.

Error to the Third district court. The opinion states the facts.

Motion to strike out bill of exceptions.

Jacobs, Hall & Osborne, for plaintiff in error.

Larrabee & Hanford, for defendant in error.

GREENE, C. J. It is necessary, under chapter 19 of the civil practice act, that a time should be fixed for the settlement of a bill of exceptions not made up and settled on the instant, and that the opposite party to the one who presents it shall have at least three days. notice of the time of settlement, unless the time is fixed by the court or judges. Here, by consent of both parties and the court, a day of settlement was appointed, and the exceptions were settled on that day. Simple naming of a day, without designating a particular hour, might not be enough, where one party was seeking to compel, by notice, the attendance of the other. It seems to us sufficient, however, where the time is determined by stipulation, and the failure to name an hour is imputable to both. How far it is necessary to set out the evidence in order to explain the charge of the judge, under section 261 of chapter 19, will depend in each case upon what the charge is. So much "as is necessary to explain it, and no more," is the statutory measure. In a case like the present, it does not

seem to us essential or desirable that the evidence should be set forth in detail or at length. Here it is enough that it appears in the bili of exceptions that evidence was given that rendered the charge pertinent and intelligible.

So the motion to strike out the bill must be denied.

Wash. T.]

CITY OF SEATTLE V. BUSBY.

181

WINGARD and HOYT, JJ., concurrred.

Subsequently, the court rendered the following opinion on the

merits:

WINGARD, J. The complaint of Isaac W. Busby, the plaintiff below, is as follows:

"Isaac W. Busby, Plaintiff, v. The City of Seattle, Defendant. (No. 2,129. Civil Action. Damages.)

AMENDED COMPLAINT. And now comes the plaintiff, by his attorneys, with leave of the court, and amends his complaint herein, and alleges

"(1) That at all the times hereinafter mentioned, and now, the said defendant was and is a municipal corporation, duly organized and existing under and by virtue of the laws of Washington Territory.

"(2) That on the first day of May, A. D. 1876, and from thence continuously until the date of the commencement of this suit, this plaintiff was lawfully in possession, and entitled to have possession, of the following described premises, situated within the corporate limits of the city of Seattle, the defendant herein, and abutting upon the west side of a certain street in said city, called Front street,' to-wit, lots seven (7) and eight (8) of block D of A. A. Denny's addition to said city of Seattle, according to the plat of said addition of record, and was, until the injury herein complained of, carrying on his business of miller and dealer in grains, flour, ground feed, etc., upon said premises, having, previously to that time, erected thereon at great expense, to-wit, six thousand dollars, buildings suitable for a steam grist-mill, and furnished the same with suitable machinery, boilers, engines, and appliances for operating said mill and carrying on said business, and said mill was then and there, all the time, until the happening of the injury hereinafter complained of, propelled by steam, and operated and in use by plaintiff. "(3) That between the first day of March, A. D. 1876, and the tenth day of April, 1876, plaintiff, at great expense, to-wit, seven hundred dollars, erected upon said premises a certain other building, which he rented to other parties, with the privilege of utilizing the power furnished by the engines and machinery of said mill for the purpose of propelling a turninglathe and operating a sash and molding factory, at a monthly rental of thirty dollars.

"(4) That plaintiff did and continued to let said last-mentioned building, and to receive the said rental therefor, and in the use of his said mill, until the injury caused by the defendant's negligence and mismanagement and want of reasonable care and skill, hereinafter alleged and set forth.

"(5) That between the first day of July, A. D. 1876, and the first day of January, A. D. 1877, said Front street was graded, and, opposite to and in the immediate vicinity of plaintiff's said premises, filled in, and thereby raised considerably above the level of the natural surface in said vicinity, all of which was done by the said defendant and under its direction.

"(6) That east of said Front street, and in the immediate vicinity of said premises, several natural springs of water issue from the ground, and previous to the grading of said Front street the same flowed past plaintiff's premies into Elliott's bay.

"(7) That through negligence, and from want of reasonable care and skill in the performance of the work on the part of the said defendant, the work of grading and filling said Front street, opposite plaintiff's said premises, was improperly done in the following particulars, to-wit: First-The natural foundation under said Front street, opposite said premises, was and is too weak and insecure as a foundation to sustain the great weight of earth

and cribbing used in filling and raising said street in said vicinity, and said defendant negligently, and from the want of reasonable care and skill, failed to construct any proper or secure foundation for said earth-work and cribbing to rest upon; second, the said earth-work and cribbing constructed by said defendant, as aforesaid, wholly obstructs the natural flow of the water from the aforesaid springs, and said defendant negligently, and from the want of reasonable care and skill, failed to construct and provide any conduits or passage-ways for said water, but left the same to flow against and percolate through the aforesaid earth-work and cribbing.

"(8) That the negligence of the defendant in the particulars aforesaid caused the foundation under said earth-work and cribbing, and also the foundation under the plaintiff's buildings and mill hereinbefore mentioned, to slide and move westward towards Elliott's bay, thereby rendering it impracticable to operate or use the said engines and machinery in said mill, and rendering said buildings too unsafe for occupancy or use.

"(9) That in consequence of the disturbance to the foundations of the said mill and buildings, as aforesaid, plaintiff was obliged to, and did, on or about the first day of February, A. D. 1878, tear down and remove the buildings mentioned in the third paragraph of this complaint, and he has lost the use and rent thereof since said last-mentioned date, and is now wholly deprived of the same; and for the same cause plaintiff was, between the first day of January, A. D. 1878, and the tenth day of January, A. D. 1879, often hindered in the use of his said mill and in the conduct of his said business, and on the last-mentioned date he was compelled to and did, for the same cause, entirely suspend his said business and tear down and remove his said mill and machinery, boilers, engines, and appliances, and he has been ever since prevented from carrying on his said business, and from operating his said mill, as he was lawfully entitled to do, and should have done, all the time aforesaid, but for the disturbance of the foundation thereunder, caused by the defendant's negligence and want of reasonable care and skill in performing the work of grading Front street, as aforesaid, to his (the plaintiff's) damage in the sum of three thousand dollars. Wherefore plaintiff demands judgment against said defendant in the sum of three thousand dollars and costs of this suit, and for general proper relief.

"L. B. NASH and LARABEE & HANFORD,
'Attorneys for Plaintiff.”

66

The answer to this amended complaint is as follows:

"Isaac W. Busby, Plaintiff, v. The City of Seattle, Defendant. (No. 2,129, Civil Action. Damages.)

"ANSWER TO AMENDED COMPLAINT. Comes now the defendant, by its attorney, J. M. Hall, and in answer to paragraph 2 of plaintiff's amended complaint, says:

"(1) First, as to whether the plaintiff was in lawful possession and entitled to have the possession of lots 7 and 8 of block D of A. A. Denny's addition to the city of Seattle, situated on Front street, at the time as set forth in plaintiff's said amended complaint, this defendant denies any knowledge or information thereof, sufficient to form a belief, and therefore demands proof of the same.

"And the defendant, further answering as to the matter set forth in said second paragraph, says: As to whether the plaintiff expended the sum of six thousand dollars, or any other considerable sum, in the erection of buildings on said lots, suitable for a steam grist-mill, and in furnishing the same with suitable machinery, boilers, and engines, and appliances for carrying on the milling business, this defendant denies any knowledge or information thereof, sufficient to form a belief, and therefore demands proof of the same. The de