found that the trunk and contents came into appellant's possession by virtue of some contractual relation entered into between some agent of appellant and Mr. Ramsay, representing the respondent. Verdicts of juries as well as findings of courts, in determining questions of fact, must be based upon testimony. Reidhead v. Skagit County (Wash.) 73 Pac. 1118. Communications, when material to the issues, through the medium of the telephone, may be shown in the same manner and with like effect as conversations had between individuals face to face, but the identity of the party sought to be charged with a liability must be established by some It is not always necessary that the voice of testimony, either direct or circumstantial. the party answering, or of either party for that matter, be recognized by the other in such conversations, but the identity of the person or persons holding the conversation, in order to fix a liability upon them or their principals, must in some manner be shown. To hold parties responsible for answers made by unidentified persons in response to calls at the telephone from their offices or places of business concerning their affairs opens the door for fraud and imposition, and establishes a dangerous precedent, which is not sanctioned by any rule of law or principle in ethics of which we are aware. A party relying or acting upon a communication of that character takes the risk of establishing the identity of the person conversing with him at the other end of the line. The able counsel for respondent argue that the case at bar presents the question as to the weight of evidence; that, the jury having found in respondent's favor on these issues, the court will not interfere.

but I do know it was an expressman. I The appellant contends that the evidence don't know where the trunk was taken." produced at the trial failed to show that No check or receipt for the trunk was ever the trunk and contents in question ever asked for or received by Ramsay or Mrs. came into the possession of the Seattle Gagle from the appellant or expressman Transfer Company by virtue of any contract who removed the trunk. The respondent or arrangement made or had with respondat that time was in Alaska. In the springent or in any other manner. The onus proof the year 1900 Young wrote Ramsay from bandi was upon respondent at the trial as Alaska, requesting him to go to the trans- to the issues tendered by him, above noted. fer company and get his trunk, pay the The jury, having rendered a verdict in restorage charges, and send it to him. Ram-spondent's favor, must necessarily have say, pursuant to such request, went to the office of appellant, and after diligent search the company was unable to find any trace of the trunk or its contents, either by consulting its books or by searching through its warehouse. Respondent testified that he left Seattle for Alaska in February, 1898, corroborated Mr. Ramsay with regard to leaving the trunk and contents with him, and authorizing him to store same with appellant; and testified, further, that he never at any time saw the trunk in the possession of the transfer company; that he personally had had no agreement with the company concerning the trunk, but had left the matter in Ramsay's hands; that on his return from Alaska he went to the office of appellant, and had a conversation concerning the trunk with Mr. Shaubut, in charge of the baggage department of the transfer company. Respondent testified: "We went down into the storage room to see if witness could pick out the trunk, and were unable to find it. Mr. Shaubut claimed that the company did not have it." The date of this conversation and search was not definitely fixed by Mr. Young, but Mr. Shaubut, testifying on behalf of appellant, said it was about one year prior to the trial of the cause, thereby fixing the date about June 12, 1901. On behalf of appellant, the testimony tended to show that no record was ever made with reference to the trunk; that thorough search was had, and no trace of it or its contents could be found; that the company in the month of August, 1898, did an extensive storage and transfer business; that mistakes had sometimes occurred in handling merchandise; that the three witnesses examined on behalf of appellant, who were at that time agents and officers of the transfer company, had no knowledge or recollection of the communications over the telephone alleged to have been made by Ramsay, witness Shepard testifying that in the month of August, 1898, he was clerk in the office of appellant company, that it was his business to receive orders communicated over the telephone, and that while he happened to be out of the office attending to the company's affairs someone else might answer calls at the telephone.

On that branch of the case relating to communications over the telephone as evidence our attention is directed to volume 25, Am. & Eng. Enc. Law, p. 885, where the following language is used: "There may be cases, however, in which the fact that the voice is not recognizable, and that neither party can be absolutely sure of the identity of the person conversing with him, may necessitate the application of exceptional rules." Several cases are cited in the foot

note in support of this proposition. Wolfe | ment on Franklin avenue, in the city of St. v. Missouri P. R. Co. 97 Mo. 473, 3 L. R. A. Louis, and another at his livery stable, on 539, 10 Am. St. Rep. 331, 11 S. W. 49, was Olive street; that witness was not certain an action brought by plaintiffs (respond- which number he called, but that his best ents) against the company (appellant) to recollection was that it was the Olive street recover damages for breach of a contract for number; that there was an answer from the the carriage and delivery of merchandise. defendant's number to the telephone call; At page 477, 97 Mo., page 540, 3 L. R. A., that he (the witness) did not know whose page 333, 10 Am. St. Rep., and page 50, 11 voice it was, and does not now know; that S. W., Barclay, J., delivering the opinion of the witness did not know the defendant's the court, observes: "In the progress of voice, and did not know the defendant, but the trial the court admitted testimony of al- that he asked, through the telephone, if that leged conversations by telephone connected was Stahl (the defendant), and the answer with plaintiffs' office, though the witness did was, 'Yes.' The witness was then asked to not identify the voice he heard at their in- give the conversation then had through the strument." The opinion states subsequent- telephone with the party answering the call. ly that there was ample testimony to sup- In response to this question the witness tesport the finding of the trial court, and that tified, against the objection of the defendits instructions were correct. Then pro-ant, that he asked why defendant did not ceeds to remark: "A question arose inci- pay the bill for which this suit was brought, dentally at the trial upon the admission in and that the party answering said, 'All evidence of a conversation held through the right; I will attend to the matter about the telephone between someone at the instru- first of the month.' A previous witness had ment in plaintiffs' private office and the testified for the plaintiff to a conversation witness." It is significant that the subject- through the telephone in a similar manner matter of the conversation is not discussed with the defendant, whose voice the former by the court. The language, in connection witness identified." The court ruled that with facts of the case as shown by the de- the testimony was admissible. In that case cision, would imply that the alleged com- it appeared that the bookkeeper of respondmunication was not very material to the is-ent identified Stahl by first inquiring if it sues. As the court remarked further on: were he who answered the call at the tele"The ruling here announced is intended to phone. Receiving an affirmative response, determine merely the admissibility of such he talked with Stahl about the debt for conversations in such circumstances, but not which suit was brought, though Stahl's the effect of such evidence after its admis- voice was not recognized. Still it should be sion." In the controversy at bar appellant borne in mind that the alleged conversation does not question the admissibility of Ram-related to prior dealings had between the say's alleged conversations over the tele-parties to the litigation. It further appears phone with reference to the trunk, but contends that they fail to connect appellant with the transaction.

that a previous witness had testified to a conversation had with Stahl over the telephone, who recognized the voice. The court The case of Globe Printing Co. v. Stahl, very properly held that the testimony was 23 Mo. App. 451, bears more directly on the admissible. While it appears in the case at propositions discussed by the respective bar that neither respondent nor Mr. Ramsay counsel in the case at bar. The action was had any previous dealings with the appelbrought by the printing company (respond-lant concerning the trunk in question, Rament) against Stahl (appellant) for the purpose of collecting a debt. The facts appear in the opinion of the court at page 452, and are thus stated: "The sole question which arises upon the record is whether the court erred in adınitting evidence of a conversation had through a telephone between the plaintiff's bookkeeper and a person, who answered to the defendant's name. The book keeper testified that he called up by telephone to the general office of the Bell Telephone Company for defendant's number, and was, by the central office, connected therewith; that the list of the telephone company showed that the defendant had two telephones, one at his undertaking establish

say did not on either of the occasions named make any effort to identify the party or parties. The facts in the other cases cited by the author were so dissimilar to those presented in this controversy we deem it unnecessary to comment upon them. The respondent offered no evidence to supply "the missing link" in that regard. The jury was permitted to guess, and base its findings thereon, that some agent or employee of the appellant answered witness Ramsay's communications, or at least one of them; that in pursuance thereof an employee of the transfer company, who was unknown and unidentified by the testimony, called and removed the trunk from the Yesler residence.

This is not a question as to the weight of and for a new trial, that the verdict of the evidence, but one of failure of proof on ma-jury was not sustained by the evidence, that terial issues tendered by respondent and de- the judgment of the Superior Court should nied by appellant. A verdict based on such be reversed, and the case remanded, with diconsiderations cannot stand. We are there-rections to dismiss the action; and it is so fore of the opinion that the trial court erred ordered.

in denying appellant's motions for a nonsuit

63 L. R. A.

END OF CASES IN BOOK 63.

SHOWING the Changes, Progress, and Development of the Law during the Third Quar ter of the Judicial Year Beginning with October 1, 1903, Classified as Follows.

I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS.
II. CONTRACTUAL AND COMMERCIAL RELATIONS.

III. CORPORATIONS AND SOCIETIES.

IV. DOMESTIC RELATIONS.

V. TORTS; NEGLIGENCE; INJURIES.

VI. PROPERTY RIGHTS; WILLS; ANNUITIES.
VII. CIVIL REMEDIES; RULES AND PRinciples.
VIII. CRIMINAL LAW AND PRACTICE.

I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS.
As to Liability of Public Officers, see infra, V.

Eminent domain.

The condemnation of private property for the erection of public mills and machinery generally, without anything to show what is meant by a public mill, or anything to give the public any interest in a mill after it is erected, is held to be beyond the power of the legislature. (Ill.) 582.

That a particular use will be of benefit to the public is held not to be, alone, sufficient to make it a public use, within the meaning of a constitutional provision that private property shall be taken only for public use. (Wash.) 820.

A corporation organized to build a bridge is held to be entitled to exercise the powers possessed by such corporations in a foreign state in which it undertakes to do business by consent of such state, including that of acquiring land for approaches and terminal facilities by an exercise of the power of eminent domain, although no such power is expressly conferred upon it by its charter. (Mo.) 301.

Taxes.

The sprinkling of streets is held to be a public purpose, within the meaning of a constitutional provision that taxes shall be levied only for such purposes. (Ky.) 655.

The obligation of a contract is held not to be impaired by the taxation of a special franchise of a corporation. (N. Y.) 884. The constitutional requirements of equality and uniformity of taxation are held not to be infringed by a statute permitting mortgage indebtedness to the extent of $700 to be deducted from the assessed value of real estate. (Ind.) 116.

The exemption of honorably discharged soldiers of the Rebellion, citizens of the state, from the provisions of a statute requiring peddlers to pay a license tax, is held to be a denial of the equal protection of the laws. (Vt.) 179.

The right of a state to require the delivery of interstate freight by one carrier to another within its borders, in order that the freight may reach a particular depot within a certain municipality, is denied. (C. C. A. 6th C.) 213.

The mere fact that a train is run by a railroad company at the solicitation of a newspaper publisher, who agrees that the daily revenue shall amount to a certain sum in consideration that he have the exclusive right to use it for the transportation of papers, is held not to make it a chartered train, so as to enable the carrier to exclude other publishers from its use, where it is placed on the regular schedule of the road, and advertised to carry persons and property generally the same as other trains. (Tenn.) 150.

(PUBLIC, OFFICIAL, AND STATUTORY MATTERS.) Dedication of highway. art. 5, § 3, providing that for voting pur Acceptance of a highway dedicated to pub-poses no person, while kept at an almshouse lic use is held to be effected by long-con- or asylum at public expense, shall, by rea tinued user, without the necessity of formal son of his presence, be deemed to have acts of acceptance on the part of public gained a residence. (Kan.) 275. authorities, where the road dedicated is a benefit to the public. (Ky.) 642.

Railroads.

An electric railway to be operated be tween two cities in different states, and carry passengers and freight, is held to be a trunk railway, within the meaning of an exception of such railways from a constitutional provision prohibiting municipal corporations from granting franchises, except to the highest bidder. (Ky.) 637.

Telephone rates.

Liquor license.

A license to sell intoxicating liquors is held to confer no vested right upon the licensee, and to be revocable before the expiration of the time for which it has been granted, by act of the legislature, or by municipal officers acting under statutory authority, with or without notice to the licensee. (Nev.) 337.

Grant of tide lands.

The legislature is held to have the right to grant to the board of park commissionrs the title to the submerged land along the The right of a municipality having stat- shore of a navigable lake, so as to prevent utory authority to regulate the use of its the owner of the upland from constructing streets for telephone wires to impose, as a wharves out to the line of navigability withcondition to the use of such streets by a tel-out their consent. (Ill.) 264. ephone company, the duty to furnish service at specified rates, is sustained. (Md.) 727.

Medical attendance to minors.

The constitutional guaranty of religious freedom is held not to be violated by a statute requiring the furnishing of medical attendance to minors, where the Constitution provides that liberty of conscience shall not justify practices inconsistent with the safety of the state. (N. Y.) 187.

Free employment agency.

Municipal corporations.

See also infra, V.

The expense of erecting and operating plants for supplying water and electric light for municipal use and sale to persons residing in the municipality is held to be a necessary one within the meaning of a constitutional provision permitting a municipal corporation to incur such expenses without submitting the proposition to its voters. (N. C.) 870.

A statute establishing free employment A statute providing that, whenever peragencies to be maintained at public expense, sons desiring to remove any tract of land which forbids those in charge of them to fur-from the corporate limits of the city shall nish help to persons whose employees are on a strike, or to permit them to have access to the names of applicants for service, while expressly entitling other employers to their services, is held to be void. (Ill.) 73.

Schools.

petition for such removal, it shall be made, provided that after published notice the district court shall find that no public or private right will be injured or endangered, all considerations as to any right of the city or its creditors to look to the property for taxes being excluded, is held to be unconstitutional, in that it attempts to confer a legislative power upon such petitioners. (Kan.) 630.

Requiring air-brakes on street cars. A school law which classifies school disBefore a municipal ordinance requiring tricts without adhering, either to the com- the equipment of street cars with air-brakes mon-law classification of municipalities, or will be declared unconstitutional, it is held to any method of classification that is gerthat it should be made clearly to appear more efmane to the purposes of the enactment, is that there is no necessity for a held to be unconstitutional, as being a local fective brake than those in use, or that the and special law providing for the manage-air-brake will not be so. (Mich.) 746. ment and support of free public schools. (N. J. Err. & App.) 485.

Voters and elections.

Cutting weeds.

Requiring one to cut weeds on his property is held not to be a taking of the prop

A member of the National Home for Dis-erty within the meaning of a constitutional abled Volunteer Soldiers is held not to be provision that private property shall not be deprived of the right to acquire a residence taken for private use, or for public use there for voting purposes, by Kan. Const. I without compensation. (Mo.) 778.