Smith v. Schlink (Colo.). 566 Smithers, O'Connor v. (Colo.). Southern Pac. Co., Barbee v. (Cal. App.).. 541 Spatz, John Deere Plow Co. v. (Kan.).. 46 674 State Bank of Commerce of Marion v. 181 482 Steinbach, Lillis v. (Wash.). 22 86 Steltz v. Armory Co. (Idaho). Stephanus, State v. (Or.).. Sternberger v. Moffat (Colo.). 98 428 560 .1130 221 Stevens v. Superior Court of Placer County (Cal.).. 512 306 Stevenson, City of Topeka v. (Kan.). 589 Speed, First Nat. Bank v. (N. M.)... 696 Stewart, Strand v. (Wash.). .1027 Spongberg v. First Nat. Bank (Idaho). 712 Steyner, Risdon v. (Cal. App.). 377 Sprague Roller Mills, Lynch v. (Wash.).. Spreckels Bros. Commercial Co., Shedoudy 578 Stoddard v. Fox (Idaho).. 122 Storey, State v. (Wash.). 878 v. (Cal. App.)... 535 Storm v. Territory (Ariz.).. 275 Spring River Power Co., Shomou v. (Kan.) 235 Stahl, Hines v. (Kan.). Stoutt, Burnham v. (Utah). .1070 273 Strand v. Stewart (Wash.). .1027 Stahl, Lake v. (Kan.). Stanard v. Sampson (Okl.). 275 796 Stanislaus County, San Joaquin & Kings River Canal & Irrigation Co. v. (Cal.).. 365 Stansbury v. Poindexter (Cal.).. 182 Star Pub. Co., Times Printing Co. v. (Wash.) ..1040 State v. Bay (Or.).. 939 State v. Beeman (Wash.). 756 Streeton, Valentine v. (Cal. App.). .1107 831 752 v. Heiderer 39 355 740 3 State v. Carrithers (Kan.). 614 State, Chicago, R. I. & P. R. Co. v. (Okl.) 901 State v. Clausen (Wash.). 743 Superior Court of Sacramento County, Western Meat Co .v. (Cal. App.).. 976 Supreme Lodge of the Fraternal Brotherhood, Schack v. (Cal. App.).. 989 State, Curran v. (Or.). 420 Swensson, Metschan v. (Or.).. 277 State v. De Hart (Mont.). State v. District Court of Ninth Judicial Swinney, Boaz v. (Kan.).. 621 Tait, Grimes v. (Okl.).. 810 State v. Donaldson (Utah). 447 Tanner v. Embree (Cal. App.). 547 State v. Dunn (Or.). 278 Tanner, Wood v. (Idaho). 123 State v. Edwards (Mont.). 940 Tanner, Wood v. (Idaho). .1053 State v. Eisen (Or.).. 282 Tappendorf, McCormick v. (Wash.)... 2 State v. Ferry (Or.). 1044 Tarr v. Western Loan & Savings Co. State, Frank v. (Cal.).. State v. Gardner (Or.).. 189 (Idaho) 1049 940 Tate v. Rose (Utah). .1003 State v. Hay (Wash.).. 748 Tate v. Shaw (Utah). .1007 State v. Hayes (Mont.). 434 Tawney, State v. (Kan.). 268 State, Hiteshew v. (Okl. Cr. App.). 892 Taylor v. Adams (Kan.). 597 State, Hulbert v. (Or.).. 422 Taylor, Grand Lodge, A. O. U. W. v. State v. International Harvester Co. of (Colo.) 570 Taylor v. Johnson (Okl.). 645 State v. Justesen (Utah). 456 Taylor v. McCowen (Cal.). 351 State v. Lamora (Or.). 417 Taylor v. Manson (Cal. App.). 410 Taylor v. Territory (Okl. Cr. App.).. Territory, Arispi v. (Okl. Cr. App.). .1099 Waite, Fisk v. (Or.). 283 622 163 Walker, Missouri, K. & T. R. Co. v. (Kan.) 239 697 Wallin, Sherwood v. (Cal.). 191 476 Walter, Anderson v. (Kan.). 270 .1134 Walton, Hart v. (Cal. App.).. 719 .1098 Walton, State v. (Or.).. 431 .1096 ..1135 Watkins, Falls City Lumber Co. v. (Or.).. 884 911 Watson, Ex parte (Okl. Cr. App.). Watts v. Murphy (Cal. App.)... 161 .1104 338 Webb, Harder v. (Kan.). 1134 Weinberg v. Naher (Wash.).. 736 760 Weingarten v. Shurtleff (Wash.). 739 911 Welch, State Commission in Lunacy v. (Cal.) 181 Territory, Palma v. (Ariz.).. Territory, Price v. (Okl. Cr. App.). Territory, Reeves v. (Okl. Cr. App.). Territory, Storm v. (Ariz.). .1134 Weltner v. Thurmond, two cases (Wyo.)...1128 157 Werdin, Pedley v. (Cal.).. 975 594 Territory, Taylor v. (Okl. Cr. App.). Thomas v. Kansas City Elevated R. Co. (Kan.) 476 Westenhaver, Pioneer Telephone & Telegraph Co. v. (Okl.) .1021 Wertheimer, Hutchins v. (Wash.). 577 709 674 343 West, Territory v. (N. M.). 343 .1019 Thompson v. Burns (Idaho). Thorp v. Ramsey (Wash.). 111 584 Western Inv. Co. v. Mayberry (Okl.). Western Loan & Savings Co., Tarr v. (Idaho) .1049 652 .... Thurmond, Weltner v., two cases (Wyo.)..1128 Times Printing Co. v. Star Pub. Co. Western Meat Co. v. Superior Court of Sacramento County (Cal. App.). 976 (Wash.) .1040 Tip Top Copper Co. v. Buckalew (Ariz.)...1134 Torlina, Chaves v. (N. M.). 690 Tower, Evert v. (Wash.). 580 Trager, Booth v. (Colo.). 60 Weston Basket & Barrel Co., Multnomah .1046 .1132 Truesdale v. Board of Com'rs of Montrose Wheeler v. Lawrence (Kan.). 228 ... Whitehead v. Callahan (Colo.). 57 880 Whitney v. Woodmansee (Idaho). 520 Wilhite v. Mansfield (Okl.). 968 .1087 Wilkinson v. Oregon Short Line R. Co. (Utah) 466 Union Nat. Bank of Columbus, Ohio, Ferguson v. (Okl.).. 641 Williams v. Board of Education of City of Parsons (Kan.).. 216 Union Pac. R. Co. v. Beardwell (Kan.).. Union Pac. R. Co.,. Houtz v. (Utah). Union Trust Co. of San Francisco v. State (Cal.) 214 Williams v. Territory (Ariz.). 476 997 Willis, Phipps v. (Or.). 935 183 336 United States, Green v. (Okl. Cr. App.). 892 Urrutia, Lillis v. (Cal. App.)... Valentine v. Streeton (Cal. App.). 681 Yamhill County v. Foster (Or.).. Yeager, Green v. (Okl.). .1107 Young v. Columbia Land & Investment Co. .1009 Wilson v. Dahler (Cal. App.). 723 335 581 123 .1053 968 611 286 906 (Or.) 982 Young v. Patterson (Cal. App.). 936 552 552 THE PACIFIC REPORTER. VOLUME 99. (51 Wash. 467) BAKER v. ROBBINS et al. (Supreme Court of Washington. Jan. 16, 1909.) 1. SALES (8 38*) - VALIDITY FRAUDULENT WARRANTY. The making of a fraudulent warranty affords ground for rescinding the sale. [Ed. Note. For other cases, see Sales, Cent. Dig. 65; Dec. Dig. § 38.*1 2. APPEAL AND ERROR (8 173*)-QUESTIONS FIRST RAISED ON APPEAL. The right to rescind a contract of sale for a mere breach of warranty will not be reviewed, when not raised in the trial court. [Ed. Not. For other cases, see Appeal and Error, Cent. Dig. § 1079; Dec. Dig. § 173.*] 3. APPEAL AND ERROR (§ 263*)-EXCEPTIONS IN TRIAL COURT-INSTRUCTIONS. The error of an instruction that a sale could be rescinded for a mere breach of warranty is not available on review, in the absence of exception thereto in the trial court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1532; Dec. Dig. § 263.*] 4. SALES (§ 398*)-RESCISSION-SUFFICIENCY OF TENDER-QUESTION FOR JURY. In an action by the buyer for the price on a rescission of sale, the sufficiency of tender of return of the property, or the waiver thereof, are questions for the jury. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1137; Dec. Dig. § 398.*] 5. SALES (§ 398*)-RESCISSION BY BUYER WAIVER OF RIGHT. Where the buyer of a horse sought to rescind the contract of sale and offered to return the animal, its subsequent use merely to give it necessary exercise does not, as a matter of law, constitute a waiver of the right to rescind. [Ed. Note.-For other cases, see Sales, Dec. Dig. § 398.*] Appeal. from Superior Court, Snohomish County; W. W. Black, Judge. Action by Lizzie C. Baker against Herbert E. Robbins and William L. Robbins, doing business under the name and style of the Robbins Transfer Company. From a judgment for plaintiff, defendants appeal. firmed. a rescission of the contract of sale for breach of warranty. From a judgment in favor of the plaintiff, the defendants have appealed. But two errors are assigned, viz., error in overruling a motion for nonsuit, and error in overruling a motion for new trial. Under these assignments the appellants contend: (1) That an executed contract of sale cannot be rescinded, in the absence of fraud, for a mere breach of warranty; (2) that no suf ficient tender was made to effect a rescission; and (3) that the right of rescission was waived by the conduct of the respondent and her husband. The weight of authority seems to sustain the first contention made by the appellants, but we do not think the rule should obtain in this case for two reasons: First, because the complaint alleged that the warranty was fraudulently and deceitfully made; and, second, because the question of the right to rescind for a mere breach of warranty was not raised in the court below. Where the representation or warranty is fraudulently made, the authorities all agree that the contract of sale may be rescinded, and a fraudulent warranty was alleged in this case. If the jury were justified in finding that a warranty was given, we think they were equally justified in finding that it was made with full knowledge of its falsity. Again, the only objections urged in support of the nonsuit were insufficiency of the tender and the question of waiver. The court instructed the jury that the contract of sale might be rescinded for a mere breach of warranty, and this instruction was not excepted to. We are therefore of opinion that the first contention is untenable. also agree with the trial court that the question of the sufficiency of the tender and the question of waiver were for the jury. While the tender testified to by the respondent was somewhat informal, yet we think the jury might well conclude that a further or more formal tender would be vain and useless in view of the acts and conduct of the appel We Cooley & Horan, for appellants. Hulbert lants. The claim of waiver was based up& Husted, for respondent. RUDKIN, J. This action was instituted to recover the purchase price of a horse, after on the fact that the respondent and his wife had used the horse after the attempted rescission of the contract of sale. There was testimony tending to show that such use was *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 99 P.-1 not as owner, but merely to give the horse HADLEY, C. J. This is an action to renecessary exercise and keep him in proper cover damages for an alleged breach of concondition, and such use would not as a mat-tract to deliver a quantity of railroad ties. ter of law constitute a waiver of the right to rescind. All questions of fact in the case were submitted to the jury under proper instructions, which were not excepted to, and their verdict is conclusive upon this court. The judgment is therefore affirmed. The terms of the contract are set forth in the following copy of a part of the correspondence between the parties: "Portland, Oregon, January 23, 1906. Vancouver Lumber Company, Vancouver, Wash.-Gentlemen: We hereby confirm our order for 50,000 pieces of 7x8-8' merchantable Oregon pine ties. FULLERTON, CROW, and MOUNT, JJ., These ties not to run over 20 per cent. No. concur. (51 Wash. 312) MCCORMICK et al. v. TAPPENDORF et al. (Supreme Court of Washington. Jan. 4, 1909.) 1. CONTRACTS (§ 278*) - PERFORMANCE-WAI 2 merchantable. Any excess No. 2 to be $2.00 per thousand feet less. Inspection and tally at loading point by inspector from Pacific Lumber Manufacturers' Association, or an inspector to be mutually agreed upon. Price $9.00 per thousand feet, less two per cent. Delivered to ship's tackle along the Columbia A party to a contract need not perform a river where vessel drawing 20 feet can safecondition precedent, where the other party can-ly lie afloat. Terms cash on presentation of not or will not perform; nor need one party tender performance when the other party has indicated that he will not or cannot accept it, or will not or cannot perform his part of the con VER. tract. Where a party to a contract indicates that he cannot or will not perform, the other party will not be bound by the contract. [Ed. Note. For other cases, see Contracts, Dec. Dig. & 318.*] 3. SALES (8 420*)-CONTRACTS-PERFORMANCE -QUESTION FOR JURY. Whether a buyer of goods, under a contract calling for cash on presentation of bill of lading, inspection certificate, and invoice at a designated bank, failed to make preparations to comply with his contract as to payment, and for that reason could not perform, thereby excusing the seller for his refusal to actually de liver possession of the goods, held, under the evidence, for the jury. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1202; Dec. Dig. § 420.*] 4. APPEAL AND ERROR (§ 1053*)-HARMLESS ERROR ERRONEOUS ADMISSION OF EVI - DENCE-INSTRUCTIONS. Where, in an action for breach of contract to sell, the court restricted the damages to the difference between the market price and contract price of the goods, and the money expended by the buyer in the towage of vessels which were to receive the goods, the error in permitting the buyer to testify as to the expenses of a trip for the purpose of trying to effect a delivery of the goods was not prejudicial. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 4180-4182; Dec. Dig. § 1053;* Trial, Cent. Dig. § 977.] Mount, J., dissenting. Appeal from Superior Court, Clarke County; W. W. McCredie, Judge. Action by Charles R. McCormick and another, partners as Charles R. McCormick & Co., against Paul F. Tappendorf and another, partners as the Vancouver Lumber Company. From a judgment for plaintiffs, defendants appeal. Reversed and remanded. A. L. Miller, for appellants. Platt & Platt, for respondents. bill of lading, inspection certificate and invoice at the Bank of California, Portland. Delivery of the entire lot to be not later than days before wanting vessel. Vessel to receive June 1, 1906. You agree to notify us thirty the ties not less than 60,000 feet per day. Yours truly, Charles R. McCormick & Co., Accepted: Vancouver Lumber Co., By W. Tenney, Manager." The complaint alleged that the defendants refused to deliver the ties, and recovery for resulting damages was demanded. The defendants answered that they were prepared to carry out their contract, and for that purpose had the ties sawed and delivered at the Columbia river, that they were ready and willing to deliver the ties according to the contract, but the plaintiffs refused to pay for the same or to make provision for payment as provided by the contract. The cause came on for trial before a jury and resulted in a verdict for the plaintiffs in the sum of $2,325.83. Judgment for that sum was entered against the defendants, and they have appealed. The court in its instructions did not submit to the jury any questions of fact except the amount of damages to be recovered. The appellants excepted to the action of the court in taking from the jury all questions relative to the contract and the breach thereof. It is contended that failure on the respondents' part to make preparations to pay cash for the ties on delivery to the ship for loading would be such a breach of their contract as would excuse appellants from actually turning the ties over to them. It is also urged that there was such evidence tendpreparations to pay cash as required the subing to prove that the respondents made no mission to the jury of the question of breach of the contract on the part of appellants. It will be noted that the terms of the contract called for delivery of the ties "to ship's tackle along the Columbia river," and the terms of payment are "cash on presentation of bill of lading, inspection certificate and in |