tirely immaterial, if the contract in question was unambiguous." Staver & Walker v. Rogers, 3 Wash. 603, 28 Pac. 906.

Nor do we find anything in the cases of Sultan R. & T. Co. v. Great Northern Ry. Co., 58 Wash. 610, 109 Pac. 320, 1020, Parks v. Elmore, supra, McCartney v. Glassford, 1 Wash. 579, 20 Pac. 423, and Graham v. McCoy, supra, that is contrary to our present holding. Holding, as we do, that there has been no breach, they have no application, unless it be the Sultan R. & T. Case, which

admits the rule to be as we have found it to be, and, if an authority at all, is probably in favor of respondent, in that it holds a contract somewhat similar not to be wanting in mutuality.

which is beyond all bounds. I cannot come to [ were, under the circumstances of this case, enthe conclusion that the defendants ever contemplated such a thing, or that the plaintiffs were entitled to suppose that they did so. When parties have put into writing the terms upon which they agree, more especially in the case of mercantile contracts, it is a dangerous thing lightly to imply what they have not expressed. Here it is clear that there is no breach of the contract as expressed upon the face of the written document. The written contract only amounts to an engagement by the defendants to sell to the plaintiffs all grains made by them in their business as brewers for ten years, not for a sum paid down, but at the current price, to be ascertained from time to time as provided by the agreement. * * In this case it seems to me very reasonable to conclude from the language used, and all the circumstances of the case, that all that either party intended was that, if the defendants should carry on business for ten years, they should sell their grains to the plaintiffs at the current prices to be ascertained as mentioned in the contract. It would have been a different thing if the contract had been to pay so much down for a supply of grains for ten years. Here, if we were to imply such a contract as is suggested, we should, as it seems to me, be incurring great danger of implying something that neither party ever intended. It is enough to say that I am not satisfied that either party intended that the defendants should be bound not to sell the business for ten years. On these grounds I think the case is not brought within the principle upon which such implications are made; and we should not be justified in adding the term suggested in the written contract."

Appellant did not agree to take only such logs as respondent might deliver. Respondent bound itself to deliver all the cedar logs cut in its logging operations, for which a fixed price was to be paid. The contract was mutual. This would not be doubted we apprehend, if appellant were suing for damages for failure or refusal to deliver logs that had been cut and sold to some third party.

[6] Finally, it is contended that the parties have put their own construction upon the contract by mutual performance for six We find in the contract before us no ambi- years and by the transfer of the contract guities calling for a resort to implied terms and its approval by respondent and the or conditions. Undoubtedly conditions are agreement by appellant to "continue to be implied in almost every contract, but they responsible for the faithful performance of are only indulged where necessity compels. said original contract, the same as if such They are employed to support consequences assignment had not been made." This conthat are natural, and not to supply matters tention is obviously not sound. The logs that are the proper subject of express con- supplied from year to year varied in amount. tract. As for instance, if no time for perform- The delivery, whether greater or less, was ance be stated, the law will usually imply a | accepted without question. To say that the reasonable time; if stock be sold for breed-parties have construed the contract to be as ing purposes, the law will imply that it is of appellant insists would lead to the inquiry proper age. We have no such case here. To whether they are to recover as for the greatinvoke the doctrine we would have to create est amount delivered in any one year, or the an omission and supply a condition where we least amount, or an average of the whole. are not sure the minds of the parties met We would not know how to estimate or upon it or that they had in mind anything measure the damage, and no way has been that does not fall within the letter of the pointed out to us.

contract.

It follows that the judgment of the lower court should be, and it is, affirmed.

CROW, C. J., and MAIN, GOSE, and PARKER, JJ., concur.

MUNSON v. JOHNSON et ux.
(Supreme Court of Washington.
1914.)

(80 Wash. 628) (No. 11891.) July 27,

"There is no allegation in defendants' answer that at the time they signed the contract in question they did not know what they were signing, or that they were not fully advised as to the terms and conditions of said contract. It is a well-settled principle of law that all prior negotiations are merged in a contract in writing when one is entered into covering the subject-matter of such negotiations, and we are not aware of any rule which will authorize oral proof, as to representations made before the execution of such contract, to be introduced in evidence for the purpose of contradicting or enlarging the scope of such 1. TRIAL (§ 133*)-CONDUCT OF COUNSEL-INcontract, without an allegation in the pleadings that such contract was, in fact, signed by the party making such allegations by mistake or fraud, or without full knowledge of the conditions thereof. As we have seen, such allegations were entirely wanting in the case at bar, and we think all representations or negotiations prior to the execution of said contract

STRUCTIONS.

Where the court charged the jury not to give any weight to statements of counsel in offering evidence that the court excludes and to try the case upon the evidence admitted and not upon offers or arguments, misconduct on the part of respondent's counsel in continuing to ask questions and make offers of proof as to

matters which the trial court had previously excluded from the evidence cannot be held reversible error, where the counsel's persistence was

not such as to warrant a holding that he acted in bad faith; any prejudice resulting therefrom being cured by the instruction.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.*]

2. TRIAL ($ 295*)-INSTRUCTIONS-CONSTRUCTION-REVIEW-HARMLESS ERROR.

In an action for damages for an alleged breach of contract, an introductory instruction, in which the court informed the jury that plaintiff was seeking to recover damages suffered by reason of the breach of contract, is harmless, if erroneous as a comment on the facts, where the instructions as a whole plainly showed that the court submitted to the jury the question of the breach of the contract.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 703-717; Dec. Dig. § 295.*]

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by Mark Munson against A. O. Johnson and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Saunders & Nelson and Robert F. Booth, all of Seattle, for appellants. James A. Dougan, Roney & Loveless, John P. Hartman, and Arthur E. Nafe, all of Seattle, for respondent.

PARKER, J. The plaintiff seeks recovery of damages which he claims resulted to him from the breach, on the part of the defendants, of a covenant to repair the elevator in the Knickerbocker Hotel in Seattle, which was leased to him by them. A trial before the court and a jury resulted in verdict and judgment in favor of the plaintiff, from which the defendants have appealed.

the court's ruling, he jury was told by the court:

have any weight with you any statement of "You are not to pay any attention or allow to counsel in offering evidence that the court excludes. You will try this case upon the evidence admitted in open court and not upon the offers or arguments.'

Similar observations were made by the court to the jury on other occasions, when ruling against counsel for respondent. The controversy has been apparently accompanied by considerable feeling between the parties. This also seems to have been reflected to some extent by counsel for the respective parties during the trial of the case. If counsel for respondent are subject to any criticism of the nature sought to be made by counsel for appellants, we think it may be said from the record as a whole that counsel for appellant are also, in a measure, subject to the same criticism. We think, however, that, whatever prejudice might have occurred of the nature complained of, it was capable of being, and was in fact, cured by the court's admonitions and instructions to

the jury made from time to time during the

trial.

tions given to the jury, the cause was re[2] In the beginning of the court's instrucferred to by the court as an action by the plaintiff "seeking to recover damages suffered by him by reason of a breach of covenant," etc. This is complained of by counsel for appellants as a comment upon the facts; it being argued that it amounts to a statement on the part of the court that damage claimed was in fact suffered by the plaintiff. This was a mere introductory remark by the court for the purpose of stating the nature of the action. Reading the instructions as a whole, we think it is quite plain that the court submitted to the jury the questions of the breach of the covenant by appellants, whether damage resulted therefrom to respondent, and the amount thereof, if any. Reading the instructions as a whole, we are quite unable to see how any one would infer therefrom that the court had any opinion as to whether or not damage had been suffered by respondent or as to the amount

thereof.

[1] The principal contentions of counsel for appellants have to do with alleged misconduct of counsel for respondent in continuing to ask witness questions and making offers of proof touching items of loss, claimed by respondent, resulting from appellants' breach of the covenant to repair, as to which the trial court had previously excluded evidence upon the objection of counsel for appellants. The record before us does evidence a considerable degree of persistence on the part of counsel for respondent in the direction complained of by counsel for appellants, but we cannot say that it was such as to warrant our holding that counsel acted in bad faith with an intention to ignore the court's prior rulings and place before the jury inadmissible evidence. The trial court seems to have taken special pains to avoid any possible prejudicial effect of counsel's questions and offers of proof upon the minds of the jury, instructing the jury to ignore all such excluded evidence. These instructions were given at different times during the progress of the trial, and also in the court's instructions at the conclusion of the trial. For instance, on one occasion, in connection with and MORRIS, JJ., concur.

Other rulings of the trial court are complained of as erroneous. These claims of error, we think, are without merit and do not call for discussion. The verdict finds ample support in the evidence as to the breach of the covenant, damage flowing therefrom, and the amount thereof found by the jury. Indeed, counsel for appellant do not seem to be seeking a new trial upon the ground of the insufficiency of evidence. think the cause does not call for further discussion.

The judgment is affirmed.

We

CROW, C. J., and FULLERTON, MOUNT

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

(80 Wash. 678)
HOBBS ▼. GREAT NORTHERN RY. CO.
(No. 11947.)

(Supreme Court of Washington. July 30, 1914.)
1. MASTER AND SERVANT (8 281*)-ACTIONS-
EVIDENCE-SUFFICIENCY.

In an action against a railroad company for the death of a servant crushed while on the pilot of an engine which struck one in front of it, where it was not within the scope of the servant's duties to ride on the pilot, a verdict for plaintiff cannot be supported if the evidence only raised a conjecture as to the reason for the servant's presence on the pilot.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. § 281.*]

TÆ.

ity Act, to recover for the death of her minor son, who was a hostler's helper in appellant's employ in its Interbay yards, Seattle. The accident, resulting in the death of the minor, Charles Hargraves, happened about 7 a. m., November 16, 1912. The deceased was a member of the night crew, and had been assisting in preparing the engines to go out upon the road, by providing them with fuel, oil, sand, and water. His work was ended at 7 o'clock, when the day crew came on duty. The last work he was engaged in concerning which there was no dispute was putting sand in an engine which then stood at the sandhouse. There is some dispute as to whether the sand was being placed in the dome of the engine or behind the fire box door, but this is immaterial, as it is apparent that, whether the sand was being placed in the dome or in the rear of the cab, it would not call for deceased's presence at the place where he was when he received his injury. At this time engine 960 was standing on the roundhouse track and a switch engine was standing on a storehouse track, connecting with the roundhouse track, so close to the frog that it was not in the clear. Engine 960 was being prepared for passenger service, and at the proper time was supposed to back down to the depot, when the switch en

ply of sand and water.

Where a servant was killed while on the pilot of an engine, evidence of his statements after the injury as to the reason for his pres-gine was to take its place and obtain its supence on the engine's pilot is not admissible as part of the res gesta; the main fact being the collision, and not the reason for his presence on the pilot contrary to the master's rule.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 372-376; Dec. Dig. § 126.*] 5. MASTER AND SERVANT (§ 265*)-INJURIES TO SERVANT-FEDERAL EMPLOYERS' LIABILITY ACT.

Recovery cannot be had under the federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), for the death of a servant without showing negligence on the part of the master; hence, as the duty of the master to furnish his servants with a reasonably safe place in which to work extends only to places in which the servant is required to work, one suing for the death of a servant while on the pilot of an engine, where servants were forbidden to ride, is bound to show that the servant was there in the performance of his duties.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]

For some reason, upon which the evidence is in conflict, engine 960 moved forward a short distance until its pilot collided with the footboard at the rear of the switching engine. At the time of the collision, Hargraves was standing on the pilot of engine 960, and received inJuries resulting in his death. It seems to be admitted that, because of the amount of steam from the engines, Hargraves' position upon the pilot of 960 could not be seen by the crew of either engine, and there is no contention that the engineer or the fireman of either engine knew he was on the pilot. As above stated, the last work of the deceased, prior to his getting upon the pilot, was assisting in filling up the sand box. The only positive testimony is that, after completing this work, Hargraves pulled a plank, which connected the sandhouse platform with the running board of the engine upon which they were at work, back to the platform, and was standing on the platform, while another hostler's helper who had been assisting him went to the water tank near by to perform other duties. The next ap

Department 2. Appeal from Superior Court, King County; King Dykeman, Judge. Action by Mary A. Hobbs, as administratrix of the estate of Charles T. Hargraves, deceased, against the Great Northern Railway Company. From a judgment for plain-pearance of Hargraves was on the ground tiff, defendant appeals. Reversed and remanded, with directions to enter judgment in favor of defendant.

F. V. Brown and F. G. Dorety, both of Seattle, for appellant. Arthur E. Griffin, of Seattle, for respondent.

near to the pilot of engine 960. How he got there or what he was doing there no one seems to know. He was then seen to step upon the pilot of engine 960 as it moved forward, facing the rear and then turning around towards the roundhouse. No one knows why he stepped upon the pilot, nor do any of MORRIS, J. [1] Respondent brought her those who saw him testify that he was doing action under the federal Employers' Liabil-' anything when the engine moved forward.

that they should theorize as to how he reached his position on the pilot, when there is no conflict on that point. Long v. McCabe & Hamilton, 52 Wash. 422, 100 Pac. 1016; Scarpelli v. Wash. Water Power Co., 63 Wash. 18, 114 Pac. 870.

Some of those standing saw the probability | points clearly to what he was doing; nor of a collision with the switch engine and shouted a warning, to which he paid no attention, either not bearing or not heeding it. So far as we can discover from this record, Hargraves had no duties to perform which would take him upon the pilot of the engine at this time, and the reason for his presence there is a matter of conjecture. It is shown that there was a rule posted in the round house forbidding employés to ride on engine pilots, and that in addition to this rule Hargraves, who had been in the employ of the company for only about a month, had on two occasions been told by the hostler not to ride on the pilot. If the deceased was at work, at the time he received his injury, in the performance of some required duty, this verdict must be sustained. With that view we have carefully examined the record, to ascertain, if possible, what the deceased was doing upon the pilot, or what he purposed to do when he went there; and we can find nothing which refutes the positive testimony that he had no duties to perform which would take him there, or of those eyewitnesses to his position on the pilot that he was not performing any at the time. One of the witnesses for the plaintiff gives it as his opinion, or, as he puts it, "my idea," that after the plank used in filling the sand box was taken down, Hargraves walked along the running board to the front of the engine and then stepped down to the pilot, supporting his theory by saying he did not have the time to get down to the ground and walk around to the front end of the engine. But this is only speculation, and is refuted by the testimony of a number of witnesses who saw him step from the ground to the pilot as the engine moved forward. Another theory offered by respondent is that deceased was on the pilot for the purpose of oiling a relief valve. Neither of these theories is supported by any testimony. They are nothing more than conjectures as to what he might have been doing. On the other hand, the testimony of all those who saw Hargraves just before he received his injury is, not only that he was standing on the ground when engine 960 started to move, and that he stepped upon the pilot from the ground, but that he had no oil can or other appliance in his hand. This is supported by testimony that it was no part of his duty, or of the hostler's crew, to oil the relief valve, and that he had no access to the lubricating oil. If there was any conflicting testimony upon this point, the jury might have disregarded this testimony as we have referred to it, and found otherwise. But respondent offers no conflicting testimony; she contents herself with testimony that is purely speculative, and points out only what he might have been doing. We guess. do not think the jury, without supporting testimony, should be permitted to speculate as to what Hargraves might have been doing, when the testimony of all the eyewitnesses

[2] Appellant also offers testimony to the effect that it would be impossible to oil a relief valve of the type on engine 960 from the place where deceased stood, or with the engine standing still. The deceased was 5 feet 8 inches tall. The relief valve upon the engine was 8 feet from where he stood. Appellant's testimony is all to the effect that the relief valve could not be reached by Hargraves from the position in which he stood. This is not only the evidence of appellant, but a locomotive engineer, introduced by respondent for the purpose of giving expert testimony, admits that the relief valve on this engine could not be reached by a person standing in the position of Hargraves. The only testimony we can find as to oiling relief valves from the pilot is that of one witness, who says it could be done by standing on the pilot beam and leaning over and holding onto a brace. But the evidence shows that Hargraves was standing on the footboard and not on the pilot beam. Had he been on the pilot beam, he would not have been injured, as the impact of the collision was very slight, resulting in no appreciable damage to either engine. Another witness testified that this type of valve could be oiled with the engine standing still, by taking a wrench and turning the valve up, putting a stick under the cap of the steam chest, pushing the plunger down, and pouring in oil. This testimony is all speculative so far as it furnishes any guide to what Hargraves was doing, and is in direct conflict with the testimony of all those who were present at the time and testified to what he was actually doing at the time. It might have been done in the manner described by this witness, but there is no evidence that Hargraves was making any such attempt. He had neither oil can, wrench, nor stick, and in addition had changed his position so that his back was toward the relief valve. Counsel for respondent in his argument asks, “If he was not oiling the engine, why was he there?" As we view the law, it is incumbent upon respondent to show what Hargraves was doing, and that at the time of his injury he was in the performance of some duty owing to the appellant, and not for appellant to make some affirmative showing to relieve it from liability. From the record, the only possible answer to the question is that he was not oiling the relief valve, and his purpose in stepping upon the pilot is a pure

[3, 4] After the injury to Hargraves he was taken to the hospital, where his mother arrived about 10:30, shortly before his death. She was interrogated as to his condition

while she was there, and the record of her have related them may not testify to with testimony is in part as follows: