July, 1891.] Opinion of the Court-STILES, J. vided by law, nor unless the proposition for creating such indebtedness shall have been previously submitted to the electors of the city at a regular general or special election, of which thirty days' notice shall have been published in the city official newspapers, and such proposition shall have then received the assent of three-fifths of the voters voting at such election. The mode and manner of submitting such proposition to the voters shall be prescribed by ordinance. And, in case such three-fifths of the voters are in favor of such loan, the city council may, after such election, by ordinance confirm the loan; but no bonds shall be issued therefor until after such confirmation, nor until the city council shall have made specific provision for payment annually of interest on such bonds, and for a fund to pay the interest on such bonds, and a sinking fund to be raised by annual tax at least five years before the bonds are due, sufficient to pay and discharge such bonds at maturity; and the faith and property of the city shall be and is hereby pledged for the final payment of any and all such loans." Inasmuch as a part of the bonds proposed in this instance were to fund indebtedness in excess of one and one-half per cent., § 30 made it necessary to submit the entire proposition in substantially the form in which it was submitted, and there was no error. Third: The amount of bonds proposed to be issued and voted was $460,000. The face of the warrants to be funded is $370,979.44, and the interest accrued thereon was estimated in ordinance 1707 to be $48.200.56, making a total of $419,180. Objection is made that the proposition to fund was indefinite as to amount, and for that reason cannot stand. There is no perceptible reason why the sum needed could not have been reached without leaying so wide a margin as the difference between $460,000 and $419.180. But the only authority given the city officers is to issue bonds to an amount sufficient to take up the warrants, the face value of which is $370,979.44, and the legal interest thereon; and until it shall appear that they are about to exceed that authority there would be no 88-2 WASH. just cause of complaint. It is presumed that all officers concerned in the issuance of these bonds will strictly follow their authority in the premises, as any departure therefrom would subject them and their bondsmen to personal liability. Fourth: Some question was made as to whether the ordinance should not have provided for bonds of the kind prescribed by the act of March 26, 1890, p. 520, but we do not consider any of the provisions of that act as applying to any bonds other than those specially provided for therein, viz., for those issued to raise money for water, sewer, or light plants. The judgment of the court below is therefore affirmed. ANDERS, C. J., and HOYT, SCOTT, and DUNBAR, JJ., concur. [No. 149. Decided July 20, 1891.] AMERICAN BUILDING AND LOAN ASSOCIATION V. ALBERT D. HART AND FRANK C. FAXON. PRINCIPAL AND AGENT-VIOLATION OF CONTRACT-DAMAGES EVIDENCE-REFRESHING MEMORY-ADMISSIONS. In an action for breach of a contract whereby plaintiffs were appointed general agents of the defendant building association with sole authority to solicit members and collect admission fees in certain territory, plaintiffs will be entitled merely to nominal damages, where the only material showing at the trial was that sales had been made by other parties in plaintiffs' territory without their knowledge or consent, and there was no proof of the number of shares sold nor of the actual damage resulting therefrom to plaintifis. A party testifying as a witness cannot refresh his memory of the number of shares of stock sold by referring to a written list copied by him froin an extract of the record made by an under clerk of the building association; nor is the admission of the president of the association, to whom the original had been shown, that “it was cor July, 1891.] Opinion of the Court-STILES, J. rect in the total," competent evidence, when the paper shows no total. Appeal from Superior Court, King County. The facts are sufficiently stated in the opinion. Preston, Carr & Preston, and W. S. Bush, for appellants. John H. Elder, Sidney M. Logan, and J. K. Brown, for appellees. The opinion of the court was delivered by STILES, J.-Appellees sued for damages for the violation of a contract dated October 1, 1888, and containing the following provisions: "First. The party of the first part agrees to appoint, and does hereby appoint, said parties of the second part general agents for the said first party for the following territory, to wit: The territory of Washington, with exclusive control of the same: Provided, That Messrs. Hurd, Beck, & Baker shall be allowed to organize local boards in Ellensburgh and North Yakima, and to work in Seattle until October 13, 1888. Said parties of the second part are given authority to solicit members and collect admission fees, organize local boards, and appoint sub-agents in such territory, such agency to terminate upon the termination of this contract." "Third. That said first party agrees to allow said second party, as compensation for such services, one hundred per cent. of the admission fee collected by them on all applications secured by them; also a renewal interest of two cents per share per month on all business done in Washington Territory by themselves or others, except that done by Messrs. Hurd, Beck & Baker in the towns excepted above; also admission fees remitted to the home office of sub-agents of second parties: Provided, That on paid-up stock second parties shall be allowed two dollars per share at the time of sale, and fifteen cents per year thereafter." The breach alleged was that the appellant association, after the making of the agreement, and after October 13, Opinion of the Court-STILES, J. [2 Wash 1888, permitted Messrs. Hurd, Beck & Baker, as its agents, to organize local boards of the association, and appoint local agents thereof, in the State of Washington, and that against the protest of the appellees, and with the knowledge and consent of the association; and that as its agents they "did wrongfully solicit members of said association to the number of about 194, and did solicit, take and receive from said members, for the sale of stock of the defendant association, and for admission fees therein, the sum of $3,035." The complaint also contained a claim for damages for injured credit, which was abandoned; and a further claim for "renewals" amounting to $485.60, which seems to have been also lost sight of, if not altogether abandoned. The answer admitted the contract, but claimed the actual date of its execution to have been October 13th instead of October 1st. It denied the breach alleged, but set up affirmatively that Hurd, Beck & Baker, under an agreement between them and the appellees, had subsequently to October 13th sold 3,000 shares of stock in Washington. At the trial a multitude of issues were assumed to be in the case, but we can find but two that were left open by the pleadings, viz.: (1) Were the sales of 3,000 shares of stock by Hurd, Beck & Baker made under any agreement. with Hart & Co. (2) If not, then there having been a breach of the contract, what was the damage to the appellees by reason of the breach? It must be borne in mind that the complaint alleged that stock was sold, without mentioning any number of shares, but also stated that the association had received from the sale of stock and for admission fees $3,035; while the answer admitted the sale of 3,000 shares but denied the receipt of any sum for stock or admission fees. The fact was that Hurd, Beck & Baker had had the same kind of a contract with the association as that given to Hart & Co., and they retained whatever they collected for their own account, claiming to act under a July, 1891.] Opinion of the Court-STILES, J. special arrangement with Hart & Co., which extended or continued the right to represent the association on the old terms. This state of the pleadings left it incumbent upon the appellees to prove to the satisfaction of the jury that shares were sold, whether 3,000 or any other number, in violation of their contract, and, within some reasonable degree of certainty, the actual damage to them resulting therefrom. Definite mathematical certainty would be nearly impossible in such a case, but, to recover more than nominal damages, there must be something like a basis for the jury to estimate from. They cannot be left to a mere guess. At the trial, however, the plaintiffs' case produced nothing material beyond a showing that the stock sales complained of were made without their knowledge or consent. It might have been expected, from the indefiniteness of the complaint and the contract, that some testimony would have been adduced showing what kind of a business this was that the association was conducting, and generally the method of disposing of its stock, for which the appellees engaged their time and labor; also what an "admission fee" was, of which they were to receive one hundred per cent.; and what was meant by a "renewal interest." But nothing of the kind was attempted even. One of the plaintiffs, while a witness, presumably for the purpose of showing that more than 3,000 shares had been sold, produced a paper which he claimed to have obtained from records in the association's office, containing what may be called a "description list" of certificates of shares issued to divers persons, and was asked this question: "What is the total of that-the number of shares of stock they sold?" To which he answered, in no way responsively: "Well, the total amount of admission fees was $3,035. Sold in lots under ten shares, the admission fee was more |