Volume 2 — Washington Appellate Reports

<bold>[1] Contracts — Construction — Intent of Parties — Language of</bold> <bold>Instrument.</bold> The intention of the contracting parties is the primary consideration in determining the meaning of a written contract, and where the terms of a contract taken as a whole are plain and unambiguous, its meaning is to be deduced from its language alone. <bold>[2] Contracts — Parol Evidence — Admissibility — In General.</bold> Parol evidence is admissible to explain ambiguities, determine the intention of the parties where not clear from the language used, supply omissions, or establish whether prior oral agreements were merged in a written contract. [See Ann. 57 A.L.R.2d 1076; 30 Am.Jur.2d, Evidence §§ 1069-1073.] <bold>[3] Contracts — Parol Evidence — Several Instruments in Single</bold> <bold>Transaction.</bold> Parol evidence is admissible to show the circumstances under which the parties executed the several instruments making up a particular transaction. <bold>[4] Contracts — Construction — Several Instruments in Single</bold> <bold>Transaction.</bold> Where the agreement of the parties to a transaction is embodied in several instruments, those instruments should be construed together insofar as not inconsistent. <bold>[5] Sales — Conditional Sales — Nature and Elements — Formation</bold> <bold>of Contract.</bold> A conditional sale is a sale in which the vendee receives possession and right of use of the goods sold, with the transfer of title to the vendee dependent upon the performance of some condition, usually full payment of the purchase price. Such an agreement need not be in any particular language or form, written or oral. <bold>[6] Reformation of Instruments — Grounds — Mistake of Fact —</bold> <bold>Requirements.</bold> Reformation of a written instrument to conform with the intentions of the parties, on the grounds of mistake of fact, requires either a mutual mistake of the parties, or a unilateral mistake by one party and inequitable conduct by the other party. <bold>[7] Appeal and Error — Findings of Fact — Review.</bold> Findings of fact based upon substantial evidence will be sustained on appeal. <bold>[8] Trover and Conversion — Damages — Consequential Damages —</bold> <bold>Loss of Use.</bold> In an action for conversion of income-producing personal property, consequential damages representing loss of profits or the reasonable rental value of the equipment for a reasonable time may be allowed in addition to damages measured by the fair market value of the property at the time of conversion, where the plaintiff is unable to obtain a replacement due to his financial<page_number>Page 116</page_number> circumstances, and the defendant is made aware that consequential damages would commence at the time of conversion.

<bold>[1] Easements — By Prescription — Extent of Right.</bold> The extent of a right acquired by prescriptive use is fixed and determined by the user in which it originated, and a prescriptive right once acquired cannot be terminated or abridged at the will of the owner of the servient estate, or his successors. [See Ann. 5 A.L.R.3d 439; 25 Am.Jur.2d, Easements and Licenses §§ 84, 101.] <bold>[2] Appeal and Error — Findings of Fact — Review.</bold> A trial court's findings of fact supported by substantial evidence will not be disturbed on appeal. <bold>[3] Property — Encroachments — Balancing of Equities — When</bold> <bold>Available.</bold> The doctrine of balancing the equities, or relative hardship, is not available to prevent the enforcement of a legal right to have an encroaching structure removed where the encroacher knew, or had<page_number>Page 561</page_number> warning, of the encroachment at the time he built the structure, and he took a calculated risk or acted with indifference to the consequences.

<bold>[1] Criminal Law — Trial — Opening Statement — Expected</bold> <bold>Evidence.</bold> Either party may refer in the opening statement to admissible evidence expected to be presented at trial. [See 53 Am. Jur., Trial (1st ed. §§ 455-457).] <bold>[2] Rape — Consent — Resistance — Prevention by Fear — Question</bold> <bold>of Fact.</bold> In a prosecution for rape, whether the prosecuting witness' failure to resist or make an outcry was caused by fear of immediate and great bodily harm is a question of fact to be considered by the jury in determining the credibility of her testimony. <bold>[3] Trial — Comment on Evidence — Purpose of Prohibition.</bold> The purpose of the prohibition of Const. art. 4, § 16 against judges commenting on the evidence is to prevent a jury from being influenced by knowledge conveyed to it by the judge as to his opinion of the evidence submitted.

<bold>[1] Judgment — Res Judicata — Collateral Estoppel — Elements.</bold> The doctrine of collateral estoppel by judgment can be applied to bar the relitigation of a particular issue adjudicated in a prior action only if the issue decided in that prior adjudication was identical with the one presented in the later action; the prior action resulted in a final judgment on the merits; the party against whom the plea is asserted was a party, or in privity with a party, to that prior action; and application of the doctrine will not work an injustice on the party against whom the plea is asserted. Privity and mutuality as to the party seeking the benefit of the doctrine defensively is not necessary where no injustice results from application of the doctrine. [See Ann. 88 A.L.R. 574; 46 Am.Jur.2d, Judgments §§ 397, 518 <italic>et seq.</italic>] <bold>[2] Trusts — Termination — Revocation by Settlor.</bold> In the absence of a reservation of a power of revocation, a trustor cannot unilaterally revoke the trust, unless he is also its sole beneficiary. <bold>[3] Trial — Instructions — Other Instructions Given.</bold> It is not error to refuse a requested instruction when the requesting party's theory of the case was covered by the instructions given and could be adequately argued under them. <bold>[4] Appeal and Error — Assignments of Error — Citation of</bold> <bold>Authority — Necessity.</bold> Assignments of error for which no supporting authority is cited will not be considered unless it is apparent without further research that they are well taken.