Action by the Winton Motor Carriage Com7. APPEAL AND ERROR 419-NOTICE OF AP-pany against Frank S. Blomberg. From Under Rem. & Bal. Code, § 1719, requiring judgment for plaintiff, defendant appeals. that the notice of appeal designate with reason- Affirmed.

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Peacock & Ludden, of Spokane, and W. W. Barton, of Sumatra, Mont., for appellant. Richard B. Harris and Alex. M. Winston, both of Spokane, for respondent.

"Mr. Winston: Yes, sir; and I simply say that because we have not prepared the judgment executed, it can be approved later by your honat this time. As soon as this bond has been or, and they can have possession, and I will present the judgment to Mr. Barton for his approval."

ELLIS, J. This is an action in replevin, commenced July 24, 1913, to recover possesOn the afternoon of August 4, 1913, counsion of one 16-passenger automobile, through- sel for plaintiff prepared a judgment followout the record called the large car, alleged ing the above-quoted understanding and preto be of the value of $2,733.94, and one 7-sented it to Mr. Barton for his approval. Mr. passenger automobile, called the small car, and alleged to be of the value of $1,063.77. The small car was purchased by the defendant from the plaintiff on June 18, 1912, under a conditional contract of sale, the purchase price being $3,285. At the time of the commencement of the action, the amount due on this car equaled the value alleged in the complaint. The contract was in writing, contained no warranty, and the last sentence reads: "This contract contains all the agreements between the parties." At the time this action was commenced the payments stipulated in the contract were four months past due. The large car was purchased under a similar contract on April 18, 1913, and the payment stipulated in the contract to be made on June 18, 1913, was past due at the

time of the commencement of this action. On July 24, 1913, the cars were seized under the replevin writ, and on August 4, 1913, the defendant, desiring a redelivery of the small car, executed a bond for that purpose. The matter of the justification of the sureties on the bond on that day came before the court, Judge J. Stanley Webster presiding. Judge Webster, considering himself disqualified, had formerly declined to try the case, but with the acquiescence of both sides consented to hear this matter. The time allowed for redelivery on bond had then expired. The defendant being present in person and represented by his counsel, Mr. Barton, and the plaintiff being represented by its counsel, Mr. Winston, the matter was disposed of by agreement as follows:

Barton refused to agree to this, although he admitted that it followed the agreement previously entered into. On August 6, 1913, sel of the time and presented the judgment plaintiff's counsel notified defendant's counto the court for entry. Judge Webster waited for a couple of hours for Mr. Barton to arrive, and then talked with him over the phone, and, finding Mr. Barton had no particular objections to the judgment, but simply did not care to approve it until it had been submitted to his associate, Judge Webster finally signed the judgment. As to the

small car the cause was continued. There

after the plaintiff filed an amended complaint, reciting the seizure of the two cars, the entry of judgment as to the large car, the redelivery of the small car on the redelivery bond, and also alleged that plaintiff was the owner of and entitled to possession of the small car, and prayed for judgment awarding it possession thereof, or for $1,063.77 and interest, which was alleged to be The defendant the value of the small car. in his answer alleged that at the time of the sale of each car the plaintiff agreed to replace without cost to defendant all broken parts on each car within one year from the date of its purchase. As to the large car he alleged there were many defects in the workmanship and material, and that it did not meet the specifications, and set up counterclaims aggregating $4,250. As to the small car he alleged there were many similar defects, and for these set up counterclaims ag"Mr. Winston: If your honor please, in the gregating $1,638.65. Defendant also alleged case of the Winton Motor Car Company, a that plaintiff had waived prompt payment corporation, against Blomberg, there is a legal of the amounts stipulated in the contract for question up which your honor declined to hear; I will say that matters have been adjusted be- the small car. On September 26, 1913, upon tween us so that it is merely a matter of form motion of plaintiff all allegations in the anof taking some testimony as to the sufficiency swer relative to the large car were stricken of a surety, whom I have already interrogated and I am satisfied is sufficient; we have agreed by the court, Judge Joseph Sessions presidthat in this case there were two machines, ing. On October 7, 1913, defendant moved motor cars, sold upon conditional sale. The the court, Judge Bruce Blake presiding, to plaintiff, claiming that the defendant was in vacate the judgment theretofore entered. On default in his payments, instituted this action No in replevin praying for delivery, under our stat- November 7th, the motion was denied. ute. The defendant desires to give a redeliv- appeal has been taken either from this judgery bond as to one of the cars, and that is ment or from the order denying the motion agreeable to us, the understanding being that he to vacate it. In January, 1914, the cause shall give this redelivery bond even though the time has passed for it, and as to the other car, came on for trial to a jury, Judge Henry L. the other car not being now in controversy, that Kennan presiding. The plaintiff proved the we may have judgment entered which will be purchase under contract of the small car by prepared, adjudicating us to be entitled to possession. That is correct, is it not, Mr. Barton? the defendant, proved the delinquency in "Mr. Barton: We don't question either the payments and demand for payment or forownership or possession of the one car, the feiture of the contract, the demand for paylarge car; the only dispute is about the small car: that is the one for which we have given the ment or forfeiture being by a letter from

1913 (nine days before the commencement of | grouped as follows: (1) That the court erred this action), in part as follows: in refusing to vacate the first judgment disposing of the large car and in striking the allegations of the answer touching the large car and in refusing to admit evidence in sup. port of the counterclaim founded thereon; (2) that the court erred in taking the case from the jury in that there was evidence tending to show that at the time of sale of the large car the respondent waived prompt payments on the contract for the small car if payments on the large car were promptly made; (3) that the court erred in not submitting the questions of warranty and breach of warranty to the jury; (4) that there was a failure of proof in that there was no evidence of the value of the small car.

the stipulation. The first judgment disposed | the right to declare a forfeiture on the con of the controversy and correctly determined ditional sale contract for that car without the rights of the parties touching the large demand and notice does not help the appelcar according to their stipulation. Under the stipulation that is exactly what would have been done had the same adjudication been included in a single judgment also disposing of the small car. Under these conditions it was not error to enter the first judgment and continue the case as to the distinct and separable subject-matter still in controversy. Plummer v. Park, 62 Neb. 665, 87 N. W. 534; Collins v. Hines (Tex. Civ. App.) 100 S. W. 359.

lant. The evidence was uncontradicted that none of these indulgences occurred after the default on the large car. Even on the appellant's theory these indulgences must be referred to the supplemental oral agreement which he himself had violated by his failure to make prompt payments on the large car. Moreover, as the evidence shows, demand and notice of forfeiture were actually made and given some nine days prior to suit. We find no error in taking this defense from the jury.

[6, 7] Taking the view most favorable to the appellant's contention, the entry of two [10] 3. The appellant's testimony touching judgments disposing separately of the two the alleged verbal warranty of the small car distinct matters in controversy was no more was to the effect that the respondent agreed than an irregularity. There was no lack of to replace parts defective in material or Jurisdiction either of parties or subject-mat- workmanship for one year upon delivery of ter. Neither the first judgment nor the order the old parts, transportation charges prepaid, refusing to vacate was an interlocutory or- at the respondent's branch house in Seattle. der. The first judgment was final and ap- The only evidence of any defect attributed to pealable. So also was Judge Blake's order workmanship or material was the breaking refusing to vacate it. No separate appeal of the frame or chassis, which it was claimed was taken from either of these, nor was ei- was too light. This was repaired without ther included in or mentioned in the notice cost to the appellant, and no further comof appeal from the last judgment. While plaint was made with regard to it until after two or more appealable orders may be em- the commencement of this action. The apbraced in one appeal, the statute expressly pellant's evidence did not establish a breach, provides that the notice of appeal shall des- even had the warranty been admitted by the ignate with reasonable certainty from what respondent. It was denied, however, and the judgment or orders, whether one or more, evidence touching the warranty was admitthe appeal is taken. Rem. & Bal. Code, §ted over the respondent's objection that it 1719. We cannot review either the judgment was an attempt to vary the terms of the or the order. Dyer v. Dyer, 65 Wash. 535, written contract by parol evidence. We 118 Pac. 634; Smith v. Stiles, 68 Wash. 345, think that this objection should have been 123 Pac. 448; State ex rel. Dutch Miller sustained. The conditional sale contract Mining & Smelting Co. v. Superior Court, 30 not only contained no warranty, but containWash. 43, 70 Pac. 102. ed a stipulation that "this contract contains all of the agreements between the parties." Clearly the effort to ingraft upon this contract the warranty now claimed was an attempt to vary and contradict the express terms of a written agreement, complete on its face, by a parol contemporaneous agreement. Buffalo Pitts Co. v. Shriner, 41 Wash. 146, 82 Pac. 1016; Smith Sand & Gravel Co. v. Corbin, 75 Wash. 635, 135 Pac. 472; Hooven & Allison Co. v. Wirtz, 15 N. D. 477, 107 N. W. 1078; Electric Storage Battery Co. v. Waterloo, etc., Co., 138 Iowa, 369, 116 N. W. 144, 19 L. R. A. (N. S.) 1183, and note.

[8] No appeal of any kind having been taken from the first judgment or from the order refusing to vacate it, that judgment is res judicata as to the whole controversy touching the large car. Chezum v. Claypool, 22 Wash. 498, 61 Pac. 157, 79 Am. St. Rep. 955. We find no error in striking the first counterclaim and refusing to submit evidence thereof to the jury.

"Whether the written contract fully expressed the terms of the agreement was a question for the court, and since it was in this instance complete and perfect on its face, without ambiguity, and embracing the whole subject-mat

[9] 2. Our disposition of the first contention disposes also of the second. The alleged waiver of prompt payments on the small car was asserted to be in consideration of prompt payments on the large car. The appellant himself testified that at the time suit was brought one installment of $300 was overdue on the large car. The first judgment precluded the assertion of any counter-ter, it obviously could not be determined to be claim as an offset against this installment. The appellant, therefore, failed to meet the consideration for the alleged waiver. There was absolutely no evidence upon which this phase of the case could have been properly submitted to the jury except on instruction to find against the appellant.

The kindred claim that the respondent, by accepting partial payments on some of the

less comprehensive than it was. And this conclusion is unaffected by the fact that it did not allude to the capacity of the particular machine. To hold that mere silence opened the door to parol evidence in that regard would be to beg the whole question." Seitz v. Brewer's Refrigerating Co., 141 U. S. 510, 517, 12 Sup. Ct. 46, 48 (35 L. Ed. 837).

In view of the written contract complete on its face, the court committed no error in

jury.

contemporaneous verbal warranty to the not an arbitrary classification violative of the constitutional provisions designed to secure equal protection of the laws and prevent class legislation.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 649-677; Dec. Dig. 208, 213; Courts, Cent. Dig. §§ 163-170, 131183; Dec. Dig. 42.]

Department 2. Original application for peremptory writ of mandamus by the State, on the relation of William Vance, against A. W. Frater and others. Application denied.

Vanderveer & Cummings, of Seattle, for relator. John F. Murphy and Robt. H. Evans, both of Seattle, for respondents.

[11, 12] 4. The claim that there was no proof to support a money judgment in that the value of the small car was not proven merits scant notice. The appellant concedes the rule that in actions to recover machinery, or its value, sold under a conditional bill of sale, the proper measure of its value to the plaintiff is the balance due on the contract price. Hallidie Mach. Co. v. Whidbey Island Sand & Gravel Co., 62 Wash. 604, 114 Pac. 457. The amount due on the sale of the small car with interest on the unpaid installments to the time of suit was clearly established by the evidence to be $1,063.77, the value alleged in the complaint. This, with interest at the legal rate to the date of trial, amounted to $1,090.37, the amount of the judgment. This was sufficient proof under the rule announced in the Hallidie Case. Moreover, in case of replevin of converted property, it is the established law of this state that the value stated in the affidavit will be taken as the true value at the time of the taking, unless the defense gives some evidence showing a different value. Peterson v. Woolery, 9 Wash. 390, 37 Pac. 416; Armour v. Seixas, 80 Wash. 181, 141 Pac. 308. No good reason can be assigned for applying a different rule to the allegation contained in a complaint for the recovery of property sold on conditional sale, or its value, in the absence of evidence that the actual value was different from the amount due on the contract. The appellant offered no evidence of a different value from that alleged and proven by the respondent. The evidence offers no question of value for sub-provides that the "act shall not apply to mission to the jury.

(84 Wash. 466)

STATE ex rel. VANCE v. FRATER et al. (No. 12220.)

FULLERTON, J. This is an application made upon notice for a peremptory writ of mandamus directed to the defendants, as judges of the superior court of King county, commanding them to appoint an official court reporter. The defendants, through their counsel, have demurred to the application, and the cause is before us upon the question whether the facts stated therein justify the issuance of the writ. We find it unnecessary to set forth the facts recited in the petition as they suggest, but a single question, namely, the applicability of the provisions of the act of March 19, 1913 (Laws 1913, p. 386), to the county of King.

[1] The act in question by its first section makes it the duty of "each superior court judge in counties or judicial districts in the state of Washington having a population of over thirty thousand inhabitants to appoint a stenographer to be attached to the court holden by him." The last section of the act

any county having a population of two hundred thousand, or over." It is conceded by the relator, and the court knows judicially, that the county of King has a population in excess of 200,000, and that the act as written does not apply to that county.

[2] It is the relator's contention that the classification made of the counties by the Legislature is not founded upon any just distinction between the separated classes, and is, in consequence, arbitrary and in violation of those clauses of the Constitution designed 1. EVIDENCE 12-JUDICIAL NOTICE-POPU-to secure the equal protection of the laws LATION OF COUNTIES.

(Supreme Court of Washington.

1915.)

March 20,

The court will take judicial notice that the county of King has a population in excess of 200.000, and that therefore Laws 1913, p. 386, authorizing the appointment of court stenographers in counties having a population of over 30,000, except in counties having a population of 200,000 or over, is inapplicable thereto.

and to prevent class legislation. The inquiry suggested by the contention is narrowed, however, by our decision in State ex rel. Lindsey v. Derbyshire, 79 Wash. 227, 140 Pac. 540, where we held the act operative as to the counties to which it ostensibly applied. Discussing the nature of the section now in question, it was there suggested that it was a limitation upon the general classification made in the first section of the act, rather than an additional classification; and it was The provision of Laws 1913, p. 386, au- held, when so considered, not to affect the thorizing the appointment of court stenograph-constitutionality of the act in so far as it ers in counties having a population of over 30,000, that such "act shall not apply to any coun- was made operative, even though the limitaty having a population of 200,000 or over," is tion might be considered in violation of the

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 17; Dec. Dig. 12.] 2. CONSTITUTIONAL LAW 208, 213-COURTS 42-COURT STENOGRAPHER-STATUTE AUTHORIZING APPOINTMENT - EQUAL PROTECTION-CLASS LEGISLATION.

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