Stanton Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Merritt, Oswald & Merritt, for appellant. Samuel R. Stern, for respondent.

CROW, J. Action by H. A. Roberts against E. H. Stanton Company, a corporation, to recover two months' salary. The plaintif alleged that in January, 1906, he was elected secretary and treasurer of the defendant corporation for one year at a salary of $175 per month; that he discharged his duties until July 24, 1906, when the defendant, through its manager, E. H. Stanton, prevented him from further performing such duties; that the manager threatened him with bodily injury if he continued; and that the defendant refused to pay his salary for July and August, 1906. The defendant denied the alleged wrongful acts of the manager, and affirmatively pleaded that during the months of April, May, June, and the early part of July, 1906, the plaintiff organized and promoted a company known as the "Sand Point Meat Company," to do business as a competitor of the defendant; that about July 14, 1906, E. H. Stanton, manager of the defendant, informed plaintiff that he was devoting too much time to the Sand Point Meat Company; that, unless he withdrew therefrom and ceased competing with the defendant, his resignation would be asked; that a meeting of the trustees would be called to ask his resignation; that immediately thereafter plaintiff left defendant's place of business; and that he has ever since failed to perform his duties. Upon findings made, the trial court entered judgment in favor of the plaintiff. The defendant has appealed.

Respondent has moved to strike appellant's brief, and affirm the judgment. The motion, being without merit, is denied.

Several assignments of error have been urged, but we will only consider the appellant's contention that the evidence does not sustain the findings and judgment. The undisputed evidence shows that the respondent was secretary and treasurer; that E. H. Stanton was president and manager of the appellant corporation; that they were elected to their respective offices in January, 1906; that they were trustees and stockholders; that there were three other trustees; that respondent performed his duties without interference until July 14, 1906; that about June, 1906, respondent sold all his stock in the appellant corporation with the exception of one share; that about the same time he acquired a one-third interest in the Sand Point Meat Company, paying $750 therefor; that the new company was doing business at Sand Point, Idaho, about 70 miles from Spokane, in a territory where it would come into direct competition with appellant's business; that on the 18th of July,

1906, some controversy arose between respondent and E. H. Stanton, the manager, in which Stanton told respondent he should either dispose of his interest in the new company or quit as secretary and treasurer of the appellant company; that thereafter respondent was at appellant's place of business one evening to help two of its trustees prepare a financial statement, and once to collect a note which he held against appellant; that neither respondent nor any other person called a meeting of the trustees to pass upon the differences between him and the manager; that no such meeting was held; that respondent was not discharged by any order of the board; and that the trustees never interfered with him in the discharge of his duties. On other points the evidence was conflicting. Respondent testified that Stanton had threatened him with serious bodily injury if he returned to work after July 14th. This was denied by Stanton, whose evidence was that he told respondent to dispose of his interest in the Sand Point Meat Company or resign his office as secretary and treasurer of the appellant, and stated that he would call a meeting of the board of trustees to demand his resignation. Respondent said he went to appellant's place of business to tender his services at one time other than the two occasions above mentioned. This was also denied by Stanton. The trial court concluded that respondent's evidence of threats made by Stanton was corroborated by the fact that he thereafter remained away, and that the further fact of the trustees' failure to hold a' meeeting and pass upon respondent's rights was a ratification of the manager's wrongful acts in driving him away. We regard this as a mistaken view of the evidence and facts. Respondent did not contend that the manager had authority to discharge him, nor was there any evidence that he did have such authority. This being true, Stanton's acts, if they occurred as respondent testified, were wrongful and tortious. Respondent was also an officer and trustee of the corporation. He knew his own authority, as well as that of Stanton. He remained away after July 14th without insisting on any meeeting or action of the trustees. If the trustees knew of the disputes and differences between respondent and Stanton, they also knew of respondent's interest in the Sand Point Company. His conduct indicated that he had elected to retain that interest and comply with Stanton's demand by quitting appellant's employ. In any event, appellant did not become liable for Stanton's wrongful and tortious acts committed without its authority, unless it afterwards ratified and approved them: It has not been shown that it did so; and, in the absence of such showing, respondent cannot recover. Respondent, however, cites Nickelson v. Cameron Lumber Company, 39 Wash. 569, 81 Pac. 1059, to sustain his contention

that the appellant became liable for the wrongful acts and torts of its manager. In that case, however, the official of the corporation who committed the tortious acts was its general manager and statutory agent, having full charge of all its business in the state of Idaho. The corporation knew of his wrongful acts and approved the same. That action was prosecuted against the corporation by a stranger, not by an officer and stockholder for the torts of another officer and stockholder as in this case.

The judgment is reversed, and the cause remanded, with instructions to enter judg-. ment in favor of the appellant.

1. CARRIERS-PASSENGERS PERSONAL INJURIES-CONTRIBUTORY NEGLIGENCE. Where a passenger on a street car asked the conductor to stop at a certain street, and he said "All right," and, upon approaching the street, the conductor closed the gates on the platform side of the car, and left the gates open on the opposite side, and then gave the signal to stop, and plaintiff, with a grip in his hand stood at the open gate and when the car slowed down as though to stop alighted, but was thrown and injured by the car starting up at full speed, the passenger was not guilty of negligence as a matter of law.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, § 1402.]

2. SAME-NEGLIGENCE OF OPERATIVES.

Such facts were sufficient to show that the motorman and conductor were negligent in starting the car again before plaintiff was safely off.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1226-12282.]

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by J. L. Marbourg against the Seattle, Renton & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Sachs & Hale, for appellant. James M. Epler, for respondent.

MOUNT, J. Action for personal injuries. Plaintiff recovered a judgment for $250. Defendant appeals.

The facts are as follows: The respondent on April 26, 1906, was a passenger on one of the appellant's cars within the city limits of Seattle. When respondent boarded the car, he asked the conductor in charge if the car would stop at Hill street, and was informed that it would. When the car approached within about a block of Hill street, the respondent again asked the conductor to let him off at Hill street, and the conductor responded, "All right." The conductor then closed the gate of the car on the side toward

the station or a platform which was used for that purpose, and left the gate of the car open on the opposite side of the car, where there was no platform. He gave the motorman the signal to stop. Respondent thereupon, with a grip in his hand, went to the rear of the car, through the open gate, and took a position on the step, intending to alight at the station when the car should stop. The car slowed down, and respondent waited until he thought it was about to stop, and then stepped off the car. Just at that moment the car started up at full speed, and respondent was thrown to the ground, and injured.

It is argued by the appellant that these facts show that there was no negligence of the appellant, and that the respondent was himself negligent by reason of attempting to alight from a moving car. 6 Cyc. 646, and Blakney v. Seattle Electric Company, 28 Wash. 607, 68 Pac. 1037, are cited to support this argument. In that case we said: "It need not, of course, be argued that a woman of mature years and discretion cannot recover from a street car company for injuries received by her while attempting of her own volition to alight from one of its cars while the same is in motion, nor need it be argued that it is negligence per se to increase the speed of a car, nor that it is not negligence to do so when a passenger is in the act of alighting therefrom unless the car company knows, or could by the exercise of reasonable diligence have known, that circumstance; and this latter was neither within the issues nor the proofs of this case." This case does not support the position of the appellant here, because here the company did know, or at least should have known, that the respondent was in the act of alighting from the car; and, instead of permitting the car to come to a stop as the respondent undoubtedly had a right to suppose would be done, the car was suddenly started forward while he was in the act of alighting. The act of the conductor in closing one gate, giving the signal to stop, and leaving the other gate open was an implied invitation to the respondent to alight on that side of the car, even if the platform or station was on the opposite side. The respondent certainly had a right to suppose under the circumstances that the car would stop at a particular point, and to act upon that assumption. If the car had not slowed down to the point of stopping, or if respondent had not been led to believe that the car would stop, of course he would have been negligent in attempting to alight therefrom while it was in motion. But here the car was at the point of stopping and at the place where respondent had been told that it would stop. We think, under these conditions, he cannot be said to have been negligent as a matter of law. The motorman and conductor were certainly negligent in starting the car again before the respondent was safely off. Appellant also argues that the complaint

1. SALES-CONTRACTS-CONSTRUCTION.

A contract for the sale of a road engine to haul lumber, containing a special warranty, and stipulating that on the failure of the engine to comply with the warranty it should be returned within 90 days, and the seller should receive from the buyer a specified sum for the lumber hauled during the test, "less the actual engine expense paid, and less the freight money paid by" the buyer, authorizes the buyer, on the failure of the engine to comply with the warranty, to offset freight money and actual engine expenses only to the extent of the amount which may be found due at the end of the 90 days for hauling lumber.

2. SAME.

A contract for the sale of an engine to haul lumber stipulated that it was sold under a regular warranty and a special warranty, and provided that continued possession for six days should be evidence that the regular warranty was fulfilled. The special warranty stipulated that the buyer should have 90 days within which to test the engine and to return it on its failure to comply with the special warranty, and that on the return of the engine the seller should receive a specified sum for the lumber hauled, less engine expense and freight money paid by the buyer. Held, that the allowance to the buyer on the engine failing to comply with the special warranty was controlled by the special warranty.

3. SAME.

A seller of an engine cannot, on the buyer returning the engine for its failure to comply with the special warranty, recover for goods placed on the engine and surrendered with it by the buyer.

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by the Spirit Valley Lumber Company against the A. H. Averill Machinery Company. From a judgment for plaintiff, defendant appeals. Reversed, with direc

tions.

Danson & Williams, for appellant. O. C. Moore, for respondent.

ROOT, J. This action was brought by respondent to cancel certain promissory notes given by it in payment of a road locomotive, and to recover certain damages alleged to be due it from appellant under the terms of the contract of sale of said locomotive. From a judgment and decree in favor of plaintiff, the defendant appeals.

On March 12, 1906, respondent, the Spirit Valley Lumber Company, gave an order to appellant, the A. H. Averill Machinery Company, for the furnishing of one 8x14x12.50 horse power Russell road locomotive for

the agreed price of $4,800. This order was delivered to appellant's local manager at Spokane, Mr. A. Mitchell, who forwarded same to appellant's principal office at Portland, Or., with the recommendation that it be accepted. Thereafter appellant did accept the order with certain changes, and furnished the machinery pursuant thereto. This order was in part on the ordinary printed blank used by appellant in taking such orders, but the remainder, and the portion out of which this litigation arises, was prepared in Spokane under the supervision of the attorney for respondent, the Spirit Valley Lumber Company. This addition to the printed form of contract, and which was prepared by respondent, and out of which the questions involved in this action arise, is as follows: "The engine mentioned in the attached contract is guaranteed to haul 25,000 feet of dry pine or fir lumber each trip from the mill to Newport, Wash., a distance of about seven miles, over ordinarily good roads, with medium grades, made especially for engine work. Weather conditions permitting, two round trips are to be made each day of 24 hours from the mill to Newport. It is agreed that the purchasers shall furnish a capable crew to load lumber at the mill and to unload the same at Newport, and that the work shall be done with dispatch so that the engine may be enabled to make the trip in the required time. The purchasers further agree that delays on account of trouble with wagon train, or any other cause outside of the engine itself, shall not be chargeable to the engine under this special warranty. It is agreed that the average cost of repairs for keeping the engine in good working order shall not exceed $100 per month. The purchasers agree to furnish a train crew, and further agree to furnish at their expense all fuel and water as it may be required. This special warranty is to extend over a period of 90 days from date of the delivery of the engine at Newport, Wash., after which period the regular printed warranty only is to apply. If the engine fails to fulfill the special warranty, it is to be returned to the A. H. Averill Machinery Company at Newport, Wash., as soon as failure is discovered, and within 90 days from the date of delivery of the engine. In the event of the engine being returned under the special warranty, it is agreed that the A. H. Averill Machinery Company is to receive from the purchasers the sum of $1.20 per 1,000 feet, for all lumber hauled from the mill to Newport during the test, less the actual engine expense paid, and less the freight money paid by the purchasers, and all notes and mortgages given in settlement for engine shall be returned to the purchasers, who agree to make no further claim of any kind against the A. H. Averill Machinery Company under the warranty given. The purchaser is hereby given the privilege of hauling logs with said engine, and using same in its general sawmill

business, and said use shall not vitiate any of the terms of this agreement." The machinery was delivered to respondent and used by it for the 90 days provided by the contract, and was then returned. After the return of this machinery respondent commenced this action to recover the sum of $705.25 freight money paid, and $2,389.41 which it was alleged "plaintiff expended for material used in repairs, labor, fuel, and water, all constituting actual and necessary operating expenses." Demand was further made for the return of certain notes which were given by respondent as evidence of the purchase price. Judgment was demanded in the sum of $3,094.66, with interest, and for the return of said notes. Appellant in its answer admitted the contract, which was attached as an exhibit to the complaint, admitted that respondent had paid the sum of $705.25 freight money, admitted the possession of the notes given as part of the purchase price of the engine, and alleged a willingness to return such notes to respondent. The remainder of the material allegations of the complaint were denied. An affirmative defense and counterclaim was also alleged, by which appellant claimed a recovery of $322.02 and interest for goods, wares, and merchandise furnished. A judgment was entered in favor of respondent, in the sum of $1,583.91 and interest and costs, and a decree directing the surrender and cancellation of the appellant's promissory notes.

The principal controversy arises over the construction of the portion of the contract hereinbefore set forth. Appellant contends that the respondent was entitled to offset freight money and actual engine expenses only to the extent of the amount which should be found due at the end of the 90 days for hauling the lumber, whereas respondent contends, and the lower court held, that respondent was entitled to collect all of the amount it might pay as freight money and actual engine expense, less the amount earned by the appellant in hauling lumber. It seems to us that the terms of the contract clearly sustain the contention of appellant. There is no agreement to pay respondent anything. There is a positive agreement to pay the appellant $1.20 per 1,000 feet for all lumber hauled, "less the actual engine expense paid, and less the freight money paid by the purchasers." These terms were to apply in the event of the engine being returned within the 90 days, which was done. The amount due for hauling the lumber was $1,188.27. Against this respondent was entitled to charge $705.25 freight money paid, and such actual engine expenses as it was required to pay. After deducting the freight money there would be a balance of $483.02 of the amount due for hauling lumber. There is considerable conflict as to the items which the respondent claims to have paid as engine

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expenses; but we think it satisfactorily appears that the amount which it rightfully paid as such expenses was sufficient, togethIer with the freight money, to equal the total sum due appellant for hauling lumber. These accounts must therefore be treated as balanced. Respondent contends that it was entitled to recover on a breach of warranty, implied as a matter of law, in addition to any allowance to it by reason of the portion of the contract quoted. We think other provisions of the contract defeat this contention. Some of them are as follows: "The above-mentioned engine sold under regular warranty as printed on contract blank and in addition thereto under the special warranty hereto attached and made a part of this contract except as modified by the hereto attached typewritten provision. If said machinery, or any part thereof, shall fail to fill this warranty, written notice shall be given to the A. H. Averill Machinery Company, Portland, Or., and to the party through whom the machinery was purchased, stating wherein it fails to fill the warranty, and time, opportunity, and friendly assistance given to reach the machinery and remedy any defects. If the defective machinery cannot then be made to fill the warranty, it shall be returned by the purchaser to the place where received, and another furnished on the same terms of warranty, or money and notes to the amount represented by purchase price of the defective machinery shall be returned, and no further claim be made on the Russel & Co., or the A. H. Averill Machinery Company. Continued possession or use of the machinery for 6 days shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of the purchaser, who agrees thereafter to make no further claim on the Russel & Co., or the A. H. Averill Machinery Company, under warranty. Last provision not in force during period covered by special warranty." It seems to us that under the pleadings, as we find them, any allowance to respondent must be by virtue of the special provision which the parties attached to the ordinary contract form.

Appellant claims $322.02 as due for goods, wares, and merchandise sold respondent in addition to the engine. It appears, however, that all of these goods were placed upon the engine, and surrendered with it to the appellant at the end of the 90 days, and under the circumstances of the case are not chargeable against respondent.

The judgment of the honorable superior court is reversed, with directions to enter a decree directing the surrender and cancellation of the promissory notes, but allowing no money recovery to either of the parties; the costs in this court to appellant.

HADLEY, C. J., and FULLERTON, CROW, and MOUNT, JJ., concur.

(48 Wash. 685)

CANADY v. KNOX et ux.

(Supreme Court of Washington. March 17, 1908.)

1. CONTRACTS RESTRAINT OF TRADE-CONSTRUCTION-BREACH.

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or

An agreement of a seller of a butcher business in a town "not to enter into the butcher business, nor kill any animals for the purpose of peddling or sale of any nature, only for his own private use in the town adjacent territory, * *" binds the seller not to compete with the buyer, either personally or in any other manner, directly or indirectly, and the agreement is violated by the seller killing animals for sale in the town, by his engaging in any meat market either as employé or in another capacity, and by peddling meat in and near the town.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 920.]

2. SAME-ACTIONS-RECOVERY.

The buyer of a business under an agreement that the seller will not enter into a similar business may sue the seller for a breach of the agreement, though he has in turn sold the business since such violation, at least in the absence of evidence showing how much of the purchase price was paid for the good will of the business. 3. APPEAL-FORMER DECISION AS LAW OF THE CASE.

The decision of the Supreme Court on appeal is the law of the case on a subsequent trial. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4358-4368.]

Appeal from Superior Court, Lincoln County; W. T. Warren, Judge.

Action by J. F. Canady against A. H. Knox and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Merritt, Oswald & Merritt, for appellants. Dye & Reiter and Neal, Sessions & Myers, for respondent.

CROW, J. This action, which was commenced by J. F. Canady against A. H. Knox and Mrs. A. H. Knox, his wife, to recover liquidated damages for the breach of a contract, has heretofore been before this court, being reported in 43 Wash. 567, 86 Pac. 930, where a full statement of the pleadings and a copy of the written contract may be found. After the remittitur had been filed in the superior court the cause came on for trial before the court and a jury. The plaintiff called various witnesses, who gave testimony tending to show that shortly after the defendant Knox had sold his meat market, fixtures, business, and good will to the plaintiff he commenced work in some capacity in a new meat market established in Almira; that he engaged in cutting meat therein; that he had killed stock for purposes other than his own private use; that he drove a butcher's delivery wagon to various points in and around Almira and peddled meat; that the market was conducted under the name of "Farmers' Meat Market"; that it was advertised in a newspaper in the name of one Flynn; that defendant in substance told various witnesses he was going into the meat market business; that when he did so plain

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tiff's business would amount to nothing; that Flynn had agreed to permit him to do business in his name; and that he was entitled to conduct a meat market in Almira if he wished to do so, without violating any of the terms of his contract. No evidence of the actual amount of damages sustained was offered, defendants' counsel stating that he understood there was no issue on that question, as this court had decided the same. The defendant himself was called by the plaintiff, and testified as follows: "Q. Did you participate in the butchering or killing of animals during that time, cattle or beef, hogs, sheep, or anything of that nature that was sold through that shop-the new market? * A. I helped kill a few. Q. Did you, during the time that shop was in operation, participate in or drive any wagons in selling meat in the country or otherwise? A. Yes; I drove a wagon in the country most of the time myself. Q. Did you sell meat from that wagon? A. Yes." The plaintiff thereupon moved for judgment for $2,000 liquidated damages, upon the ground that the defendant had admitted upon the witness stand facts constituting a violation of the contract upon his part. Before this motion was decided by the trial judge defendants' attorney offered to prove by the defendant upon crossexamination the length of time the new business had been conducted, that the defendant drove a wagon for one Mr. Flynn, and that the plaintiff had sold his business previously purchased from the defendant. These offers were upon the plaintiff's objection refused. No further evidence being offered, the trial judge discharged the jury, and entered judgment in favor of the plaintiff for $2,000 liquidated damages. The defendants have appealed.

It is contended that the trial judge erred in sustaining respondent's objection to the offers of evidence on cross-examination of appellant above mentioned. Apparently it was appellant's contention that he was working for Flynn, and not for himself. The evidence offered by the cross-examination was immaterial and properly rejected. The written contract contains the following stipulation: "That the party of the first part [appellant] agrees with the party of the second part [respondent] that he will not enter into the butcher business, nor kill any animals for the purpose of peddling or sale of any nature, only for his own private use in the town of Almira or adjacent territory." His own evidence shows that he violated this agreement. He killed and butchered animals for sale in Almira, being for purposes other than his own private use. He had been engaged in the new market either as an employé or in some other capacity, and had also peddled meat in and near Almira from a delivery wagon. The evident intention of the written contract was that the appellant should in no way compete with the respondent's