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take was not discovered until the train had passed west of Helena, between which place and Missoula the distance is about 100 miles. As soon as the conductor learned of respondent's claim, he, of his own motion, telegraphed to St. Paul, with a view of having the error corrected. While awaiting the reply, the respondent rode comfortably along in the sleeping car, and was in the dining car when the train reached Missoula, and the conductor received his answer from St. Paul, and read it to her. This answer said, "She will have to purchase another ticket to Seattle, and take receipt, and take matter up with selling agent;" and it left the conductor no alternative in the line of his duty, which he proceeded to perform in a gentlemanly and entirely friendly manner. He, upon his own responsibility, offered to carry her to Hope, Idaho, 173 miles beyond Missoula, and where his division ended, without a ticket, because, in the mean time, he expected, by telegraphing again to St. Paul, to be able to straighten the matter out; but he advised her that Hope would be reached about 3 o'clock in the morning, and that it would be less trouble to her if she bought a ticket from Missoula, and afterwards got her money back. The talk about the matter took some 15 minutes, during which the train was held to await her decision. But other passengers' advice prevailed, by holding out the idea of damages, and she determined to stand upon her legal rights, and be "put off." Now, it is perfectly idle to say that this young lady was ever put off the train. She had been told she could continue her journey at least as far as Hope, and the train was standing at Missoula. But she determined not to go on, and, in order to make out the necessary case of ejection from the car, was compelled to ask the conductor to put her off, which he obligingly did, by saying, "Come on, then," and himself walking out. She followed, without wraps or baggage, which she left in her seat; and when she had reached the platform the gentleman who afterwards bought her ticket said, "Well, have you put her off?" to which the conductor pleasantly answered, "Yes." That is absolutely all there was of it, and constitutes the sole basis for this extraordinary recovery. As to the elements of damage, it is said that she suffered from the apprehension that she might have to leave the train, that she was under the imputation of having told an untruth about her ticket, that she had to step out of the car, and that she was humiliated by having to accept a loan from a stranger. As to the first matter, her disturbance of mind could not have been very severe, and it certainly continued less than half an hour. Concerning her veracity, there is no evidence whatever that anybody doubted it. The conductor believed her, and said so, and proved it by offering to carry

her nearly 200 miles west of Missoula, at the risk of having to pay her fare himself; and she says herself that all the other passengers believed her, and sympathized with her, and one of them, a perfect stranger, voluntarily paid upwards of $30 for her account. She need not have stepped out of the car at all, for, as was held in Railroad Co. v. Griffin, 68 Ill. 499, cited above, her cause of action was completed by the requirement to pay fare a second time. She left the car solely for the purpose of perfecting her right to substantial damages, fearing that the technical wrong that had been done to her in taking away her ticket, and returning the short check, would not sustain a suit, unless she actually left the car. Doubtless, her mind and those of her advisers would have been made easier if the conductor could have been induced to put his hand upon her, however formally, during the process of ejection. The last item, the acceptance of the loan from Mr. Adams, is unworthy of consideration. She was not compelled to do so, and no such thing was ever contemplated in the contract. She could have ridden on to Hope, and probably, in the time it took to go there, the conductor could have had his order to carry her through to Seattle. The loan was simply another means of making up a case. Technically, nominal damages over the cost of the ticket from Missoula to Seattle, $30.30, should have been allowed, perhaps; but the jury, under a general instruction that they could find damages for "injury to her feelings for the indignity suffered, and for humiliation, for disgrace. and for wounded pride," without any fact upon which to base a, finding of even a sentimental injury, and disregarding the law as laid down by the court,-that compensation only could be recovered,-assessed the damages at an outrageously punitive sum, a very substantial part of which is still permitted to stand. I see no reason why railroad companies should be subjected to such penalties for unintentional mistakes, and in my judgment it is idle to say that the submission of the case to a jury makes such an excessive judgment any the less a rank injustice. If the jury had brought in a verdict for $100, and the trial court had not interfered, I should have been willing to accept it, although not by any means admitting that injury to any such extent was suffered by respondent. For a recent case where there was an actual injury occurring through negligence of the railroad company to perform a duty, the passenger being actually put off and left, and where the supreme court of Minnesota divided a judgment of $500 in half, with evident doubt whether so much should be allowed, see Finch v. Railroad Co., 49 N. W. Rep. 329.

HOYT, J. I concur in the above.

(5 Wash. 718)

MEEKER et al. v. JOHNSON. (Supreme Court of Washington. May 22, 1893.)

SALE-DELIVERY AND ACCEPTANCE.

A contract for the sale of hops provided for their delivery between September 20th and October 20th, payment to be made on delivery "and" acceptance. Held, that where the hops were delivered on Saturday, October 17th, and payment was tendered on Monday following, before the hops were removed by the seller, the title passed to the purchaser, and the seller could not then rescind; since, under the contract, the purchaser could defer acceptance until October 20th. Per Stiles and Hoyt, JJ., dissenting.

Dissenting opinion. For report of majority opinion, see 32 Pac. Rep. 772.

STILES, J., (dissenting.) I cannot but think that the court, in its opinion, has begged the whole question at issue. It cites all the cases which hold that a contract to pay immediately upon demand" means reasonable notice and time to procure money after the notice, and then proceeds to bar the appellants of their rights under that rule upon two grounds: First, they knew the hops were coming; second, they signified that they accepted them. I said all I care to say upon the first point when this case was here before. 28 Pac. Rep. 542.

As to the second point. The letter of the contract is that payment is to be made "upon delivery and acceptance of the same by said parties of the second part." Thus, the acceptance by appellants was just as important to the completion of the transaction as delivery by the respondent; and there can be no question, and the majority do not deny, that Meeker & Co. could have postponed their acceptance at will until October 20th. Under the contract they controlled the situation that far, and the owner of the hops could do nothing but wait if they had chosen to say that they would not accept until that day. Now, is it not a refinement of technicality to hold that because they did not take advantage of their full rights under the express terms of the contract, and keep Johnson dancing attendance until the last day, they lost all rights of every kind because they did not produce their money "immediately upon demand?" I cannot look upon business transactions between men in any such light, and I do not think the law contemplates the bestowment of any such unfair advantage upon one party to a contract over another, and therefore I dissent.

HOYT, J. I concur in the above.

(6 Wash. 590)

CARRIGAN v. PORT CRESCENT IMP. CO. (Supreme Court of Washington. June 30, 1893.) CORPORATIONS-LIABILITY FOR ACTS OF OFFICERS. A corporation which names one as manager, and allows him as such to largely control

its business, will be held responsible for his acts in its name, unless it affirmatively shows that such acts were unauthorized.

Appeal from superior court, Clallam county; James G. McClinton, Judge.

Action by M. J. Carrigan against the Port Crescent Improvement Company on a contract. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. C. Hatch and Harry E. Lutz, for appellant. Benton Embree, for respondent.

HOYT, J. All of the errors assigned by appellant, excepting those relating to the evidence offered in opposition to its own clain of offset, were founded upon the rulings of the court upon objections by the appellant to the introduction of evidence to show that the contract sued upon, which purported to be executed by John E. Lutz, its manager, was so executed by him by, express authority of the board of directors, or that it had been fully ratified by the action of the company. Before the introduction of any such testimony, the plaintiff had shown that the contract in question had been in fact signed in the name of the company by said Lutz as its manager, and that said Lutz was in fact the acting manager of the company, having control of all or nearly all of its transactions. Under these circumstances, it will be presumed that it was the contract of the corporation until the contrary is made to appear. When a corporation names some person as its manager, and, as such, allows him in a large measure to control all its business transactions, it must be held responsible for the acts of such manager in the name of the company until it has been affirmatively shown by it that, as a matter of fact, such acts were unauthorized. This is, perhaps, an extension of the general rule, but, in our opinion, such extension is necessary to prevent great hardships being cast upon those who deal with corporations. The very use of the word "manager," as applied to the officer, conveys the idea to the ordinary mind that to one thus named has been committed the management of the affairs of the company; and to hold that one dealing with a person so held out must, before the company can be held liable for his acts, show affirmatively that it had authorized them, would often result in great hardship. The books of many of the smaller corporations are very imperfectly kept, and from them it is sometimes impossible to determine as to just what authority is vested in the manager, and to require of one who deals with the corporation to show affirmatively the author. ity thus given would often require of him something that it was next to impossible for him to ascertain. But if we hold that the acts of the person thus held out as manager are prima facie those of the company, but that such presumption can be rebutted by affirmative proof on its part that in fact they were unauthorized, it will greatly sub

serve the public interests and convenience, and at the same time impose no hardship upon the corporation. The corporation can much better be charged with knowledge of what its books show than can one dealing with it; and if, in fact, the act of the manager has never been authorized by the company, it will be easy for it to show such fact, and thus overthrow the prima facie presumption of liability arising from his having acted in the name of the company. This has been held to be the rule in many of the courts when the act of the officer is authenticated by the seal of the corporation, but we see no reason whatever, in the manner in which corporations now so largely transact their business, to draw any distinction between a contract executed by an officer, and authenticated by the seal of the corporation, and one not so authenticated. It follows that the plaintiff had made a prima facie case before the offer of any of the evidence to which objection was made, and, the defendant having put in no proof tending to rebut it, all such evidence was absolutely harmless, as it could not affect adversely any right of the defendant.

As to the exceptions growing out of the claim of offset set up in appellant's answer, we have carefully examined all the proofs offered in regard thereto, and we think the finding of the court was abundantly warranted by competent testimony contained in the record, and, such being the case, his findings thereon are conclusive upon us. We find no error of record which could have affected adversely any right of the defendant, and the judgment against it must be affirmed.

an assignee in place of the one named by the assignor in his deed of assignment, and asked the court to fix the amount of the supersedeas bond on such appeal. This the court refused to do, and this proceeding has been instituted to compel such action on the part of the court by mandamus. The general rule which requires superior courts to recognize attempted appeals, and do all things necessary to give full effect thereto, is well established by the authorities, and has been recognized and enforced by this court. There is, however, in proceedings by mandamus, another rule of equally general application, fully established by the authorities, and that is that the courts will not compel, by their order in such proceedings, the lower court to do a vain and useless thing. Applying this rule to the facts shown by the petition in this case, and it will be seen that if, as a matter of fact, in the opinion of this court, no appeal would lie from the order made by the superior court, we would not compel the court below to take any steps in furtherance of the attempted appeal therefrom. Such steps on the part of the lower court would be absolutely useless, if in fact there could be no appeal from the order which was sought to be reversed thereby. It will therefore become necessary for us to determine in this proceeding whether or not the order in question is one from which an appeal will lie. If it is not, then, under the rule above announced, it will follow that the application for mandamus to compel the court to take action in pursuance of the attempted appeal must be denied. Our constitution provides that an appeal will lie to this court from the superior court in all actions and

DUNBAR, C. J., and STILES and SCOTT, proceedings. This provision has been inter

JJ., concur.

(6 Wash. 411)

STATE ex rel. VOTAW et al. v. PARKER, Judge.

(Supreme Court of Washington. May 24, 1893.) MANDAMUS TO COURT-RIGHT TO APPEAL - FINAL JUDGMENT.

1. The superior court will not be required by mandamus to recognize an attempted appeal from an order which is not appealable.

2. An order of the superior court appointing an assignee in insolvency in place of one named by the assignor in his deed of assignment is not a final judgment, from which an appeal will lie.

Original petition in the name of the state, at the relation of H. L. Votaw, assignee, and others, for mandamus to Emmet N. Parker, judge of the superior court of Pierce county. Denied.

Carroll & Carroll and H. M. Hagerman, for petitioners. Stevens, Seymour & Sharpstein, for respondent.

HOYT, J. Relators sought to appeal from an order of the superior court appointing

preted, both by the legislature and the courts, to provide for appeals only from final judgments and orders in such actions and proceedings. It follows that if the order in question is a final one in any action or proceeding, an appeal therefrom will lie. What was the action or proceeding pending in the superior court? Substantially it was the surrender by the assignor of his property to his creditors, and everything required by the statute to be done by the superior court was incidental to the main object of the statute and of the assignor, to secure the application of such property to the payment of his obligations to all of his creditors equally. Incidental to such main object, the statute has provided for the choice of an assignee, first, by the assignor himself, and, second, by the creditors and the court; and such choice of assignee, whether made by the assignor himself, or in any other manner, is simply an incident to the main object of the proceeding, and cannot, in our opinion, be held to be a separate proceeding, within the meaning of our constitution, or the statute enacted in pursuance thereof, giving this court

jurisdiction by appeal from all final orders entered therein. It follows that, under our interpretation of such constitutional and statutory provisions, the order from which this appeal was sought to be taken was not one from which an appeal would lie. As we have before said, the appointment of the assignee is purely incidental to the proceeding, and it can make no material difference to the assignor nor to the creditors as to the person who should discharge the duties of such assignee, and therefore there is no reason whatever for holding that a question growing out of such appointment is so far a separate proceeding that final orders entered therein come within the statutory provision as to appeals. The assignor has surrendered his property to the jurisdiction of the court, and his interest therein is terminated, excepting that he or any creditor would doubtless have the right to ask the court to prevent any improper conduct in relation thereto on the part of the assignee. Whether such assignee Lad been named by the assignor, or in some other manner, the assignor has no such interest in the determination of the question of his continuance in the position as gives him any standing to appeal from any order which the court may make in regard thereto. Such assignee is simply a trustee for the creditors, and is subject to the orders of the court and to the provisions of the statute in discharging such trust, and has no direct personal interest in the subject thereof. It is conclusively presumed that for what he may do in connection therewith he will receive such payment as will justly compensate him for the services rendered, and no more. It follows that an appeal will not lie in his behalf.

Besides these reasons, founded directly upon the terms of the statute and the nature of the order, there are other reasons why such appeals should not be allowed. If so allowed, the orderly administration of such estates would be greatly interfered with. In this case, from the facts sown by the record, it appears that the creditors and the court have for some reason found that the assignee named in the deed of assignment is not the one who should administer the trust; and, if an appeal from the order designating some one to administer it in his stead is to be allowed, and upon such appeal the enforcement of such order be superseded, it will follow either that the administration of the estate must be suspended until the determination of the appeal, or that it must continue in the hands of the person whom the creditors and the court have for some reason decided not to be the one who should thus administer it. We have looked somewhat carefully into the authorities upon this subject, but have been unable to find a single case which would warrant us in holding that an appeal would lie from

orders of this kind. The only case at all in point is one in the supreme court of the United States, in which it was held that an appeal would lie from an order fixing the compensation of a receiver; but this case does not seem to be at all decisive of the question at bar.

There the receiver had a direct pecuniary interest in the subject-matter of the order, and it was held that, in view of the fact that such receiverships frequently continued for years, public policy and justice demanded that orders made from time to time as to the compensation of such receivers for services rendered Should be considered final orders. A further reason for holding that appeals in such cases should be allowed was that no inconvenience could result therefrom, as the administration of the trust would continue, and be unaffected thereby. On the other hand, we have examined numerous cases in which practically the question now under consideration was decided adversely to the contention of the relators. The cases of Brigel v. Starbuck, 34 Ohio St. 280, and In re Graff, (Appeal of Bailey, Pa. Sup.) 23 Atl. Rep. 397, are directly in point, and seem to us to be decisive of this case. See, also, cases of Lake v. King, 16 Nev. 215; State v. Judge, 6 La. Ann. 484; and Middleton v. McCullough, (Ark.) 9 S. W. Rep. 844. The petition for the writ of mandamus must be denied.

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1. Act Cong. March 3, 1875, granting rights of way to railroads over the public lands, provides in section 4 that a company desiring the benefits of the act shall file a profile of its road, which, after approval by the secretary, shall be noted on the plats, "and thereafter" all lands crossed by said right of way shall be disposed of subject thereto. Held, that the grant passes title to the company on the filing of the profile, not on the filing of the articles and proof of organization. Enoch v. Railway Co., (Wash.) 33 Pac. Rep. 966, followed.

2. A pre-emptor who has filed his declaratory statement, but has not paid for the land, has a possessory claim, within the meaning of Act Cong. March 3, 1875, § 3, which provided for the condemnation of such holdings in the public lands by railroads taking advantage of the act, and is entitled to compensation for a right of way taken through his land. Enoch v. Railway Co., (Wash.) 33 Pac. Rep. 966, followed.

Appeals from superior court, Spokane county; James Z. Moore, Judge.

Actions by Stephen Reidt and Jacob Flutsch against the Spokane Falls & Northern Railway Company for damages for a right of way taken by defendant through

plaintiffs' land. Judgments for plaintiffs. Defendant in each case appeals. Affirmed.

McBride & Allen, for appellant. Ridpath & Marshall, for respondents.

PER CURIAM. The facts in these two cases being nearly the same as those in the case of Enoch v. Railway Co., 33 Pac. Rep. 966, and the legal questions involved being identical, it was stipulated by counsel for the respective parties that the three causes should be heard together, and that the disposition of the cases should be governed by the decision in that case, in which alone briefs were filed. For the reasons given in the opinion filed in that case, the judgment of the lower court in each of these cases is affirmed.

(6 Wash. 623)

STATE v. GILE. (Supreme Court of Washington. May 25, 1893.) CRIMINAL LAW-APPEAL BOND-REDUCTION BY APPELLATE Court.

The supreme court has no authority to reduce as excessive the amount of the appeal bond fixed by the trial court in a prosecution for manslaughter.

Appeal from superior court, Lewis county; M. J. Gordon, Judge.

M. A. Gile was convicted of manslaughter, and appeals. On motion to reduce appeal bord. Motion denied.

O. V. Linn and Swasey & Lemly, for appellant. A. E. Rice, Pros. Atty., B. W. Coiner, and S. C. Herren, for the State.

DUNBAR, C. J. Defendant, M. A. Gile, was found guilty of manslaughter, and his appeal bond was fixed by the trial court in the sum of $6,000. This amount he claims is excessive and unjust, and moves this court to reduce the same. Counsel for defendant have not cited the court to any law empowering this court in a proceeding of this kind to exercise the power of reducing the amount fixed by the trial court; hence, without further investigation, we assume that no such authority exists under the law, and the motion is therefore denied.

STILES, SCOTT, HOYT, and ANDERS, JJ., concur.

(6 Wash, 297)

EICHOLTZ v. HOLMES. (Supreme Court of Washington. April 7, 1833.) Appeal from superior court, Cowlitz county. Andrew F. Burleigh and J. E. Lilly, for appellant. M. E. Billings and E. W. Ross, for respondent.

DUNBAR, C. J. The motion in this case must be denied, for, outside of the merits of the case, (and the facts are so conflicting that the court could not feel justified in presuming against the correctness of the statement

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STILES, J., (dissenting.) I cannot concur in the judgment of the court. The constitution guaranties to every litigant the right to have all material questions involved in his case reviewed by this court, and both the statute and the decisions affirm that an appeal will lie only from a final judgment. Now, in Windt v. Banniza, 2 Wash. St. 147, 26 Pac. 189, we held that an order refusing to dissolve an attachment was not a final order, so as to allow of its being appealed from separate from the main case; and this decision clinches the bonds of a wrongful attachment by refusing to entertain the error of the court in refusing to dissolve where there is no dispute that the debt was due. In nine cases out of ten where attachments are levied there is no dispute as to the debt, and therefore, in an equal proportion of cases, outrageous wrong may be perpetrated, as there was in this case, without any remedy except upon a suit for damages. In my opinion, so much of the judgment as continued the lien upon the attached property ought to have been vacated, and appellants should have had all costs upon the attachment and of this appeal.

(6 Wash. 417) STATE ex rel. PETERSON v. SUPERIOR COURT OF MASON COUNTY et al. (Supreme Court of Washington. May 26, 1893.) ATTACHMENT-CLAIMS BY THIRD PERSONS.

Code 1881, c. 33, directs that, when property attached on a writ issued in another county is claimed by a third person, he shall file his affidavit and bond with the sheriff, who shall return them to the clerk of the county where the property was seized, and said clerk shall docket the claim as a cause for trial. Held, that the sheriff's failure to return the affidavit could not deprive the proper court of jurisdiction, nor the attaching creditors of their right to an adjudication.

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