ters, and the signing and verifying of the complaint by appellant and sending it to respondents to commence the action. This $100 retainer and 30 per cent. proposition, however, manifestly was conditioned upon the appellant actually paying the $100 retainer in cash within a specified time, long before the trial of the action, which was never done. [1] It seems plain to us that the minds of the parties met upon the straight 50 per cent. basis. This, we think, is rendered plain by the correspondence prior to the signing and verifying of the complaint, and by appellant sending the complaint, signed and verified, to respondents. All that was said in the correspondence thereafter was, to our minds, only looking to a change of the original agreement of the parties, which change, we think, clearly was never brought about. [2] Counsel for appellant argue that his statement in the letter of October 13th that he preferred to give a note for $100 on the 30 per cent. proposition negatives the acceptance by him of the 50 per cent. proposition. It may be conceded that this does suggest that he preferred that proposition to the 50 per cent. proposition. But the trouble is that proposition was never accepted by respondents. And we think appellant's action, in thereafter signing and verifying the complaint and sending it to respondents, in effect authorized them to commence the action, and was an acceptance of the 50 per cent. proposition. As was said by Justice Holmes, speaking for the Supreme Court of Massachusetts, in Hobbs v. Massasoit Whip Co., 158 Mass. 194, 33 N. E. 495: The proposition stands on the general principle that conduct which imports acceptance or assent is acceptance or assent in the view of the law, whatever may have been the actual state of mind of the party-a principle sometimes lost sight of in the cases.' It seems quite clear to us that the order establishing the lien claimed by respondents must be affirmed. It is so ordered. MAIN, C. J., and FULLERTON, TOLMAN, and MITCHELL, JJ., concur. (103 Wash. 685) HENNEBERG v. COOK et al. (No. 14850.) (Supreme Court of Washington. Oct. 18, 1918.) 1. BROKERS 43(1)—AGREEMENT REQUIRED TO BE IN WRITING. An agreement that in case of sale to S., in accordance with contract of a certain date entered into between him and C., of 578 acres of land located in a certain county, there would be due, etc., was in effect a promise to pay for past services, not controlled by Rem. Code 1915, 5289, as to agreements authorizing brokers to sell realty being in writing. HOLCOMB, J. Respondent and appellants entered into a written contract as follows: "This agreement, made and entered into this 23d day of March, 1912, by and between the Cook-Reynolds Company and Lee-Wier Company, and F. C. Henneberg, to wit: It is agreed and understood that in case the sale of the 578 acres of land located in Fergus county, Mont., closed according to the contract entered into to John A. Schmidt of Spokane, Wash., is between the Cook-Reynolds Company, and said John A. Schmidt March 13, 1912, there will be berg the sum of ($1,445) fourteen hundred due the Lee-Wier Company and F. C. Henneand forty-five dollars, payable by the CookReynolds Company on or before July 16, 1913, as follows: Seven hundred and twenty-two 50/100 ($722.50) when the Cook-Reynolds Company has sold that certain mortgage of $5,000 to be received from the said John A. Schmidt according to contract, and ($722.50) seven hundred twenty-two 50/100 dollars, when the lot numbered in block 8, Sinto addition to Spokane, is sold by said Cook-Reynolds Company. It being understood and agreed that the CookReynolds Company shall pay one-half of each of the above-mentioned payments to the LeeWier Company and one-half of each of the above-mentioned payments to F. C. Henneberg. It being further agreed, however, that in case the said sale of said land above mentioned is not tract with John A. Schmidt then in that case consummated and closed according to said conthere will be no commission due either Lee-Wier Company or F. C. Henneberg and this agreement shall be null and void. "Signed this 23d day of March, 1912. by George W. Cook, its treasurer of the Cook-Reynolds Company and Lee-Wier Company and F. C. Henneberg. Lee-Wier Co., by E. T. Lee. F. C. Henneberg. The Cook-Reynolds Co., by G. W. Cook, Treasurer." This suit was brought on the contract to recover the last half of respondent's commission of $472.75, with interest. Respondent testified in his own behalf that the contract for the sale of the Montana land was fulfilled by sale to Schmidt, but no attempt was made to prove the description of the 578 acres of land in Fergus county, Mont., nor was evidence offered to show that the sale contract in appellants' possession contained a description of the land. It is alleged that appellants partly performed the commission contract by paying one-half of the commission and that they refuse to pay the last half thereof. Appellants alleged and contended (1) that 2. PLEADING 339-ABANDONMENT OF DE- the commission contract was void on account FENSE-FAILURE TO OFFER EVIDENCE. In suit to recover balance of commission for closing sale of realty, held, that defense that commission was not payable, because sale of certain lot had not been consummated, was a of the statute of frauds, and (2) that the lot taken in the trade had not been sold, and for that reason the last installment of commission was not due. At the close of re spondent's testimony appellants moved for judgment, which was denied. Appellants refused to introduce any evidence, and judgment was granted to respondent. Appellants assign that the court erred: (1) In refusing to sustain appellants' demurrer to the complaint; (2) in refusing to grant judgment in their favor upon motion made at the conclusion of respondent's testimony; (3) in refusing to find that the contract sued on is within the statute of frauds and that no sufficient description of the land, for the sale of which respondent is claiming a commission, is set forth in the contract; and (4) in refusing to find that under the terms of the contract there was nothing due respondent at the time suit was commenced, for the reason that the terms thereof as to the sale of the lot in Spokane had not yet been complied with. [1] The first three assignments may be considered together, the controlling question being whether the commission contract is controlled by the statute of frauds. Rem. Code, § 5289, is as follows: "In the following cases specified in this section, any agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof, be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized, that is to say: * * (5) An agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission." statute of frauds, as amended in 1905, section 5289, supra, was for the purpose of preventing frauds instead of promoting the same. The rule established in the Rogers and Nance Cases, supra, should not be extended to cases where the services of a broker have been completed, all the parties to the sale contract have fully performed, a written promise to pay the broker for his service has been signed by the party to be charged, and there existed no necessity for specific performance to complete the sale. [2] Appellants' fourth assignment of error relates to the time when the commission is payable. The second defense, that the lot taken in trade had not been sold and for that reason the last installment-that sued on-was not due, was not supported by any evidence, and must be considered abandoned when appellant refused to offer evidence in support thereof. On examining the contract it is plain that all the commission is due on or before July 16, 1913, and the subsequent provisions must be considered to have been effectuated as long as they are within this period. The sale of the lot was within the control of appellants. If it was not sold, such fact was a matter of affirmative defense, and proof on the part of the party within whose control it was, even if it can be conceded that, under the provision of the contract for payment within a certain time, the party charged therewith could indefinitely ing the sale of its lot. postpone its payment by indefinitely postpon There is no error. Affirmed. MITCHELL, the result. ROCHE et al. v. MADAR et al. (104 Wash. 21) (No. 14798.) Oct. 14, 1918.) 1. SPECIFIC PERFORMANCE 121(4) — EvIDENCE-EMPLOYMENT OF ATTORNEY-WITH DRAWAL. It will be seen that the contract herein for compensation or commission for the services rendered by the agent or broker to sell or purchase real estate was in writing. ReFULLERTON, MOUNT, spondent proved that he had completed the MACKINTOSH, and TOLMAN, JJ., concur. services and had received part of the com- MAIN, C. J., and CHADWICK, J., concur in mission. If the commission contract had contained a definite description of the property sold, respondent would have been under the same obligation to prove that he had performed the contract. Appellants cite us to Rogers v. Lippy, 99 Wash. 312, 169 Pac. 858, L. R. A. 1918C, 583, and Nance v. Valentine, 99 Wash. 323, 169 Pac. 862, but the case at bar can readily be distinguished from these cases, in that it refers to the sale contract entered into on March 13, 1912, between appellants and Schmidt, and provides that, upon closing the contract, there will be due respondent et al. $1,445, payable by appellants on or before July 16, 1913, upon specified contingencies. Thus it will be seen that a sale contract had been entered into, and that, when the same was fulfilled accordingly, certain amounts were due respondent to be paid within a time certain. This contract was entered into March 23, 1912, ten days subsequent to the making of the sale contract, and was in effect a promise to pay for past services. Muir y. Kane, 55 Wash. 131, 104 Pac. 153, 26 L. R. A. (N. S.) 519, 19 Ann. Cas. 1180. It was manifestly so construed by appellants when they paid the first installment due for the service. Furthermore, the pursuant to contract employing attorneys, evi- Where attorneys under contract of employ- 117-PLEADING tract of, and an entering upon, the duties of Where attorneys' complaint alleged a conemployment, and a continuance therein until wrongful discharge by defendants, and the proofs indicated withdrawal of one attorney and contract and a later wrongful discharge of both his subsequent re-employment under the same attorneys, there was neither a fatal variance nor proof of a contract different from the one 4. ATTORNEY AND CLIENT 133-CONTRACT 5. SPECIFIC PERFORMANCE OF REMEDIES. —6—MUTUALITY The doctrine of mutuality of remedies applies only to executory contracts and not to a fully performed contract of employment of attorneys, where nothing remains to be done except payment of the agreed compensation in corporate stock. 6. ATTORNEY AND CLIENT 143-AGREE MENT FOR COMPENSATION-VALIDITY. Under Rem. Code 1915, § 474, providing that the measure and mode of compensation of attorneys shall be left to the agreement of the parties, where clients fairly and equitably agreed to pay as a fee a certain amount of corporate stock, the attorneys having fulfilled the contract were entitled to enforce specific payment thereof. 7. SPECIFIC PERFORMANCE SUE-LIMITATION. 105(3)-TIME TO Where attorneys sued for specific performance of a contract for an agreed fee to be paid in corporate stock well within the statute of limitations, and the record fails to show some special reason why a shorter period should be enforced, plaintiffs were not guilty of laches. Department 1. Appeal from Superior Court, Spokane County. Action by John H. Roche and another against John Madar and wife and another. Judgment for plaintiffs, and defendants appeal. Affirmed. Allen, Winston & Allen and B. B. Adams, all of Spokane, for appellants. F. C. High smith, John H. Roche and F. W. Girard, all of Spokane, for respondents. and Roche continued to perform services until both counsel were finally discharged by John Madar, acting on behalf of himself and the other appellants. The causes referred to in the written contract were conducted by other counsel and brought to a final determination. The present action was brought by respondents to recover the stock and cause its transfer on the books of the corporation. The trial resulted in a judgment in favor of the respondents, and it is from this judgment that the present appeal is prosecuted. [1, 2] The appellants first assign error upthere was no re-employment or reinstateon the findings of fact. It is contended that ment of the contract after Roche had announced his intention to withdraw from the employment. But without entering upon an extended review of the evidence, we think it convincing upon the question. The fact was not only testified to by both of the reinterested witnesses who testify to services spondents, but they are corroborated by disperformed by them in the causes after the letter of withdrawal was written. On the other side the testimony is practically that of John Madar alone, and he is contradicted in certain particulars by certified copies of the records taken from the causes in the Idaho courts. Again, it is said in this connection that the services performed were inconsequential and trivial. But, to the contrary, we think the showing is that the services were consequential and valuable. Not only were pleadings prepared and filed and the causes extensively briefed, but when the employment was entered upon the appellants were in default in certain of the actions which the respondents were able to have set aside, the work of so doing requiring several trips from the attorneys' place of residence in this state to the courts in Idaho where the causes were pending. FULLERTON, J. On September 13, 1911, the appellants employed the respondents, who are attorneys at law, to represent them and prosecute to a final determination cer[3] The second contention is that there is tain actions then pending in the courts of the state of Idaho, in which the appellants a fatal variance between the pleadings and were actual parties or parties in interest. the proofs. In their complaint the respondThe contract of employment was in writing ents alleged the contract of hire, their enterand distinctly specified the services to be ing upon the duties of the employment, and performed. As a consideration for the serv- their continuance therein until their wrongices, it was agreed that the appellants ful discharge by the appellants. The proofs should turn over to the respondents, on the were, as has been indicated, a withdrawal final determination of the actions, 125,000 by one of counsel, his subsequent re-employshares of the capital stock of the corporation, ment under the same contract, and the suband cause the shares to be transferred to the sequent wrongful discharge of both counsel. respondents on the books of the corporation. This we are clear is not a fatal variance, The respondents immediately entered upon nor proof of a different contract from that the performance of the services and contin- alleged in the complaint. The terms of the ued therein for a considerable time, when a contract remained the same. If there was difficulty arose between the respondent at any time a severance of the original reRoche and the appellant John Madar, caus- lation, there was also a resumption of that ing Roche to write a letter declining to con- relation, and the rights and liabilities of the tinue longer in the employment. This difficul- parties remained after the resumption as ty, according to the contention of the respond- they were originally. It was competent thereents and their witnesses although disputed fore for the respondents to declare upon the by the other side, was afterwards adjusted,' original contract, and they are not to be nonsuited, conceding that their proofs show an intermediate break and renewal of the contract. [4] The case of Baxter v. Billings, 83 Fed. 790, 28 C. C. A. 85, cited and relied upon by the appellants, presents in our opinion an entirely different question. In that case a contract was made with two attorneys for a stipulated compensation to conduct certain litigation. Before the contract was completed, one of the attorneys died, and it was held that the other could not recover upon the contract. While we think the case sound, it does not present the question presented here. There the death of one of the attorneys put an end to the contract, and there was and could be no revival of the original contract. Of necessity there must be a new contract either express or implied, and the court could well hold that any action to recover fees by the surviving attorney must be based upon the new contract. But here no such condition exists. It was competent for the parties to reinstate the contract, and, having done so, it was obligatory upon all the parties. shares of stock. It was a specific fee agreed [7] The fifth contention is that the respondents were guilty of laches in instituting their action. But we cannot think this contention requires an extended discussion. That it was brought well within the period of the statute of limitations is not questioned, and this period will mark the limit of the right to maintain an action unless some special reason is shown why a shorter period should be enforced. A diligent reading of this record fails to disclose any such special reason. Lastly, it is contended that the shares of stock contracted to be delivered to the respondents were the separate property of the appellant Mary Madar, and thus not a subject of contract by John Madar for a com found that the shares of stock were community property of the contractors, not the separate property of Mrs. Madar. With this finding we agree. Being community property, the shares were a proper subject of contract by John Madar when contracting on behalf of the community. [5] The third contention is that there is no mutuality of remedies. If we have correctly gathered the appellants' meaning, it is that, since in an action for specific performance they could not have compelled the respondents to perform the services agreed on their part to be performed, the respondents cannot, notwithstanding an actual per-munity obligation. The trial court, however, formance on their part, enforce a specific delivery of the shares of stock. But as we understand the doctrine of mutuality of remedies, it applies only where the contract is executory, not to a contract which has been fully performed on one side and nothing remains to be done on the other but turn over the agreed compensation for the performance. This last is the situation here. The respondents have fully performed or, what is the same thing, performed all that was required or contemplated by their contract until it was breached by the other side. In other words, the compensation agreed upon has been earned, and the question is not, was there originally a lack of mutuality of remedy, but rather, can the appellants urge this original lack of mutuality as a defense to performance on their part, after the contract has been performed by the other party? We are clear they cannot. [6] The fourth contention is that the remedy of the respondents is one for money damages and not a specific performance of the agreement to deliver the shares of stock. It is a general rule, it is true, that contracts for the sale of personal property will not ordinarily be enforced specifically, and that the general rule is as applicable to the sale of shares of stock as it is to other forms of personal property. But it cannot be said that this is an ordinary contract for the sale of The judgment is affirmed. MAIN, C. J., and PARKER, MITCHELL, and HOLCOMB, JJ., concur. (103 Wash. 598) HOUCHEN v. OREGON-WASHINGTON R & NAV. CO. (No. 14596.) (Supreme Court of Washington. Sept. 27, 1918.) 1. DAMAGES TY TO RAISE. 62(3)-SUNKEN VESSEL-DU A vessel injured and sunk in collision, which may be raised and repaired, cannot be abandoned by the owner and treated as a loss; he must minimize damages. 2. DAMAGES 146-PLEADING. Complaint against steamship company for sinking pile driver, though it might have been more specific in alleging different elements of damages, not having been moved against because of generality, damages must be considered such as were necessary result of sinking. 3. COLLISION 133-Loss oF PILE DRIVER. time, cost of replacing it in condition, with deA pile driver not being procurable at any preciation in value and loss of use, is measure of damages for its sinking by steamship com pany's negligence, the total not to exceed value | fish trap and headed for shore, continuing of the pile driver and its appliances when injured. 4. COLLISION 149-SINKING OF PILE DRIVER-INSTRUCTION-RIGHT OF NAVIGATION. In action against steamship company for sinking plaintiff's pile driver, instruction as to right of vessel to navigate river being paramount, with condition navigation should not be carried on wantonly or negligently, etc., held proper, and company's requested instruction properly refused. 5. TRIAL 139(1)-QUESTIONS FOR JURY. Facts as to which reasonable minds might differ are questions for the jury under proper instructions. 6. COLLISION 149 - INSTRUCTIONS - FAILURE TO MAINTAIN LIGHT. In action against steamship company for sinking pile driver at anchor, court should have instructed that if plaintiff failed to maintain proper warning light (in compliance with Act Cong. Aug. 19, 1890, § 1, art. 11 [U. S. Comp. St. 1916, § 78491), it was contributory negli gence barring recovery. 7. COLLISION 73-PRESUMPTION OF NEGLIGENCE-REBUTTAL. Where collision between pile driver at anchor and steamship occurred, an accident not happening in ordinary course, presumption of negligence attaches to steamship company, whose vessel was moving, but it may be rebutted by evidence pile driver was in improper place and not maintaining warning light. on that course until it ran into the pile driver, cutting the scow in two and sinking it and the pile driver with the appliances and equipment. Appellant in its answer denied that the pile driver displayed a light, and that it was lawfully anchored in a proper part of the stream and outside the channel, but alleged that the pile driver was unlawfully anchored in a part of the river suitable for navigation and in the usual course or channel of river steamers and of the steamer Potter; that the pile driver was within the shadow of the mountains on the south shore, and not visible until immediate ly before the collision, when the accident was unavoidable; that as a result of the collision the steamer Potter was considerably damaged, and that appellant was compelled to expend $399 for repairs, which is claimed as damages and as a counterclaim. Respondent's evidence of the location of the pile driver varied from 150 to 500 feet below the outer end of the upper Burke trap, and from 150 to 300 feet inside the outer end of it, according to the estimates of different witnesses. Respondent offered evidence as to the usual course taken by the Potter after the upper fish trap was constructed. One of respondent's witnesses testified that, before the Main, C. J., and Chadwick, J., dissenting. Department 2. Appeal from Superior Court, Wahkiakum County; H. W. B. Hew-upper fish trap was put in, the Potter usualen, Judge. Action by W. A. Houchen against the Oregon-Washington Railroad & Navigation Company. From judgment for plaintiff, defendant appeals. Reversed and remanded. A. C. Spencer and John F. Reilly, both of Portland, Or., for appellant. Wm. Stuart, of Cathlamet, and J. Bruce Polwarth, of Portland, Or., for respondent. HOLCOMB, J. Respondent instituted a common-law action against appellant to recover damages for $2,500 for injuries caused at 2:50 a. m. on September 1, 1916, by appel lant's side-wheel steamer T. J. Potter in col ly ran pretty close to the shore and ran about in line where the pile driver was located. Respondent offered evidence of a light burning on the pile driver. The last time any witness claimed to have seen a light was at 2 a. m., 50 minutes before the accident, at which time he claims he saw some unknown person go aboard the pile driver from a boat. No one was aboard the pile driver at the time of the collision. The pilot and lookout of the Potter testified that there was no light on the pile driver. At the trial before a jury the court, over the cost of raising the driver, the cost of appellant's objection, allowed evidence of repairing it, and of profits which respondent claimed to have lost through the sinking of the pile driver, and instructed the jury that it might allow damages for all of such items. the close of the testimony appellant made a motion as follows: liding with respondent's pile driver, which "The defendant now moves the court for a the plaintiff, and that the jury be instructed judgment in favor of the defendant and against to return their verdict in favor of the defendant on the issue of damages claimed by plaintiff, and that this cause be submitted to the jury upon the issue only of defendant's counterclaim against plaintiff for damages to its steamer Potter. This motion is based upon the following grounds: (1) The evidence offered in this cause does not make out a sufficient case to entitle the plaintiff to have the same submitted to the jury on the issue of plaintiff's claim for damages against the defendant. There is no evidence of any negligence on the part of defendant. (3) The evidence affirmatively shows that the plaintiff was guilty of negligence which contributed to the accident. (4) (2) |