Dissenting Opinion - HOYT, J. [2 Wash. and whenever this court is satisfied that, by the action of the lower court, a party has been deprived of the opportunity to fairly present his cause, it should order a new trial. I think the facts proven upon such motion for continuance show that without it the cause could not be fairly tried, and that therefore there should be a new trial. Second: As to the rule of damages authorized by the contract as applied to the facts proven upon the trial. The conditions of the contract which bear upon this question are vague and indefinite, and it might well be held thereunder that no breach could be assigned thereon. There was an absolute want of the usual conditions of exactness and certainty. The agreement simply provided on the one part that supplies should be furnished, and on the other part that they should be accepted and paid for, but as to the amount of such supplies, or the time when or place where they should be thus furnished and accepted, the contract was entirely silent. If these conditions could be enforced at all they must be mutual. Now, suppose the plaintiff had made up his mind not to take the supplies of the defendant, and the defendant had decided to bring an action to compel such taking or to recover damages, could it maintain such action? If it could not, then it must follow that the plaintiff could not successfully allege a breach of such conditions. It is not necessary for the purpose of this discussion that I should come to a conclusion as to the above inquiry, as from my interpretation of the contract the measure of damages adopted by the lower court was wrong, even if the contract was held to be sufficiently certain to support an action for the breach thereof. There was nothing in the contract or in the proof at the trial to show that any of the supplies contemplated by the contract could not be obtained in the open market, and therefore the general rule as to damages would be the difference between the contract price and the price in the open mar Feb. 1891.] Dissenting Opinion - HOYT, J. ket; and, there being in this case no contract price other than the market price, there could be no damage. It is claimed, however, that the contract, when viewed in the light of the circumstances surrounding the parties at the time it was entered into, as disclosed by the proof, shows that the parties clearly contemplated other than the usual responsibility in regard to such furnishing of supplies by the defendant. I am unable to see that this claim has any foundation, as the plain conditions of the contract show that the agreement to furnish and take the supplies in question was mutual, and that the defendant was as much moved to enter into the contract by the agreement of the plaintiff to get his supplies of it as the plaintiff was by its agreement to furnish the same. But if it is conceded that said contract was all that the plaintiff claimed, and that thereunder the defendant became an absolute warrantor that such supplies would be furnished as stated therein, yet the measure of damages adopted seems to me to be wrong. The defendant had no control over the magnitude of the operations of the plaintiff, and had not contracted to supply any particular grade or kind of camp; and the simple fact that the plaintiff had established his enterprise upon a particular scale would no more compel the defendant to supply that particular scale than any other; and if the rule of damages laid down in this case is sustained, the plaintiff could have doubled the amount of his recovery by having instituted his enterprise on a scale as large again as he did. If the defendant was liable for the loss of prospective profits growing out of the reduction of his force from forty to twenty men, he would have been likewise liable if the force had been reduced from eighty to ten men. It seems to me impossible that the parties could have contemplated such a construction of the contract that the damages for a breach thereof could thus be increased or decreased at the will of one party without the act or consent of the other. Dissenting Opinion - HoYT, J. [2 Wash. I shall not attempt to review the cases cited by the majority of the court more than to say that I have carefully examined them all, and I do not think any of them sustain the doctrine approved in this case. If the contract as to supplies was enforceable at all, the highest measure of damages that could be sustained, upon any theory of the case, would be the actual loss suffered by reason of a breach thereof; and of this actual loss prospective profits could form no part. Such actual loss would, in ordinary cases, be the difference between what the supplies were to be furnished at and what it cost to procure them elsewhere. But if it appeared that it was known to the parties that it would be impossible for the plaintiff to get the supplies elsewhere by reason of want of money or credit, and in the light of such knowledge the defendant supplied plaintiff and allowed him to incur large expense by way of making roads, etc., in anticipation of getting in logs under the contract, and then, knowing these facts, refused to supply him longer, defendant should, for such refusal, be held liable to plaintiff for the money thus expended by him in the prosecution of the enterprise, less any sums he had received on account thereof. Even if the rule of damages approved by the majority of the court is correct upon the facts found, it could not avail plaintiff, for the reason that the complaint is insufficient to authorize the introduction of proof as to the knowledge of defendant of the condition of plaintiff. In my opinion the judgment should be reversed, and a new trial ordered. [No. 64. Decided February 11, 1891.] EBEN PIERCE V. JAMES A. FRACE. PUBLIC LANDS-PRE-EMPTION-CANCELLATION OF ENTRY-EJECT MENT. Under the laws of this state the holder of a final receipt for entry upon public lands, which is in force and uncanceled, may maintain an action of ejectment to protect his possession thereunder. Until the issuance of patent for an entry under the pre-emption laws of the United States, the commissioner of the general land office may suspend the entry, and order a re-examination as to the pre-emption claimant's residence upon and improvement of the land for which he holds the final receipt of the register and receiver, and if, on said re-examination, it is shown that the claimant has not complied with the law, the commissioner of the general land office has power to cancel the entry. (DUNBAR, J., dissents.) Error to Superior Court, Pierce County. The facts are fully stated in the opinion. Doolittle, Pritchard & Stevens, for plaintiff in error. It seems plain, upon a fair construction of the United States Statutes-(1) That the register and receiver have been constituted by law the tribunal to hear and determine all questions relating to the settlement and improvement of pre-emption claims, and there is no reservation of power upon these questions to any of the higher officers of the land department, and the only restriction upon the power and authority of the register and receiver is, that they shall hear and determine these questions agreeably to such rules as may be prescribed by the secretary of the interior. Rev. St. U. S., § 2263. (2) That there is no appeal from this decision of the register and receiver upon these questions except in cases where questions arise between different settlers upon the same land, which questions are to be determined by the 6-2 WASH. Argument of Counsel. [2 Wash. register and receiver, and then the appeal lies from such decision to the commissioner of the general land office, and from him to the secretary of the interior. Rev. St. U. S., § 2273; Wilcox v. Jackson, 13 Pet. 498-511; Lytle v. Arkansas, 9 How. 314–328. In the matter of sales of public land, the courts have viewed the transaction precisely like that of a sale between two private individuals. The government is regarded as a vendor and the pre-emptor as a purchaser, and when the contract has been completely executed by the payment of the full amount of the purchase price, it has been universally held that a vested right existed in favor of the pre-emptor, and that the contract had assumed such a character that it could not be rescinded arbitrarily by the government. Carroll v. Safford, 3 How. 441–460. In some of the earlier cases, the supreme court seems to have attached paramount importance to the fact that the legal title remains in the United States until the execution and delivery of the patent, but the later and better doctrine is that although the naked legal title may be held to technically remain vested in the United States until the execution and delivery of the patent, yet upon the consummation of the sale, and its complete execution by the payment of the purchase price on the one hand and the delivery of the final receipt or patent certificate on the other, a complete equitable title vests in the purchaser, which is substantially equivalent to the patent, and which is sufficient to overcome a patent which may have been subsequently issued to another claimant. Witherspoon v. Duncan, 4 Wall. 210; Simmons v. Wagner, 101 U. S. 260; Cornelius v. Kessel, 128 U. S. 457; Smith v. Ewing, 11 Sawy. 56 (23 Fed. Rep. 741); Wilson v. Fine, 40 Fed. Rep. 52. The courts are bound, of course, and it is their province to set aside any judgment or decision or any contract. founded upon fraud, and we think the decision of Judge |