Opinion of the Court― SCOTT, C. J.

[19 Wash. these amounts, he claimed an off-set for the services aforesaid, and it appears that he rendered a statement therefor against both banks jointly. This will be referred to later.

Thereafter the Seattle National Bank re-assigned said claims to the Commercial National Bank for the purpose of bringing suit. The proceeds in case of a recovery, however, were to go to the Seattle National Bank as a part of the assets aforesaid, and for the purposes of the transfer.

In said action Wheeler set up his claim for services as an off-set or counter-claim. The reply contained a denial of the rendition of any such services or of any indebtedness therefor, so that the fact as to whether he had any claim for such services, or had performed the same, was directly in issue in said trial. Thereafter, during the pendency of said action, Wheeler assigned his claim to the plaintiff here, but the same was not withdrawn from the action aforesaid, and in its findings, the cause having been tried without a jury, the court found,

"That the plaintiff was not the first day of November, or at any other time, indebted to the defendant for services as an attorney rendered within three years last past and for money paid to and for the use and benefit of the plaintiff in the sum of $2,400, or in any other sum or any sum at all, and that the defendant L. H. Wheeler is not entitled to recover anything from the plaintiff upon the cause of action set up in the first cross-complaint contained in his third amended answer herein;"

and rendered judgment thereon as follows:

"That the defendant L. H. Wheeler take nothing by either of the causes of action set up in the cross-complaint in his third amended answer, and that the same and all matters contained in said cross-complaint be and are hereby adjudged and determined, and that the plaintiff recover its costs and disbursements herein and be entitled to execution."

Mar. 1898.]

Opinion of the Court-SCOTT, C. J.

One of the contentions of the defendant in this case is that this claim was barred by said judgment, and we are of the opinion that it is well taken. No direct contract upon the part of the Seattle National Bank to pay said claim is shown, and its liability, if any, arises by virtue of its having received the assets of the Commercial National Bank. The fact that Wheeler continued to perform services in those actions for some time after said transfer, must be considered as though he were still performing them for the Commercial National Bank or in the prosecution of its business under the assignment, of which he had notice; and the plaintiff in this action, having purchased the claim while it was in litigation, is bound to the same extent that Wheeler would have been bound by the judgment if he had not assigned the claim. This is so well sustained by the authorities that a citation is needless, and in fact we do not understand the general rules aforesaid to be disputed by the plaintiff, except that he contends Wheeler was defeated in the first action on the ground that the Seattle National Bank owed him for the services. If that was the case, he should have had a finding there to that effect, not having withdrawn the claim. We can only be governed by the issues and the judgment. The plaintiff here is the privy of the defendant in that case and the defendant here is the privy of the plaintiff in that case, and the same matter there adjudicated is sought to be retried here, viz.: that the plaintiff performed the services, the value thereof and the balance unpaid. It is argued that unless the plaintiff can maintain this action it will result in the loss of the claim without a trial on the merits. The evidence introduced in the former action is not here, if we could look into it. Wheeler testified in this action that he had been paid various sums from time to time for his services. His claim here is for the balance. We do not know on what ground

Opinion of the Court-SCOTT, C. J.

[19 Wash. the court found against him in the former action, nor is that question before us. As a matter of law the record presents a bar, in the absence of an independent agreement on the part of the defendant here to pay the claim.

In this action the defendant sought to off-set the demands originally held by the Commercial National Bank against Wheeler upon the note and overdraft, and the court charged that by pleading this off-set the defendant admitted its liability to the plaintiff upon the claim for the services performed by Wheeler, and the respondent's counsel maintains that this was correct upon the theory that to dispute the aforesaid claim and at the same time plead an off-set would be setting up inconsistent defenses, and cites the cases of Seattle National Bank v. Carter, 13 Wash. 281 (43 Pac. 331) and Allen v. Olympia Light & Power Co., 13 Wash. 307 (43 Pac. 55), but these cases do not sustain his contention. We are of the opinion that a defendant may deny liability, and at the same time set up a counterclaim or off-set, or allege payment, in all cases where there is no direct contradiction in the special facts pleaded, and there is none such here. Corbitt v. Harrington, 14 Wash. 197 (44 Pac. 132).

A further question remains to be considered, and that is the contention of the plaintiff that he had a right to recover upon an account stated on the ground that he had delivered a statement of his account to the defendant in this action, and that the same had been retained a long time without objection. The facts as to this are disputed, but, adopting the most favorable construction for the plaintiff, it is well settled that such an account only determines the amount of a debt where a liability exists, and there was no direct obligation here against the defendant. Bradley Fertilizer Co. v. South Pub. Co., 17 N. Y. Supp. 587; Austin v. Wilson, 11 N. Y. Supp. 565. A great many questions

were submitted to and answered by the jury, but none of them can have a controlling effect on the above questions. As the defense of former adjudication of the plaintiff's claim is sustained, it is unnecessary to consider the defendant's contention as to the right to off-set the note and overdraft or the judgment thereon.

Reversed and remanded accordingly.

ANDERS, DUNBAR, GORDON and REAVIS, JJ., concur.

[No. 2651. Decided March 3, 1898.]

C. E. NYE et al., Respondents, v. MILO KELLY et al.,
Appellants.

PUBLIC OFFICERS -ACTION ON BOND-LEAVE OF COURT-PARTIES—

INSTRUCTIONS.

In an action upon an official bond by the agents of the state solely for the benefit of the state, leave of court to prosecute the action is not necessary, under Code Proc., § 696, requiring leave of court to be first obtained before the commencement of an action by a plaintiff other than the state, since an action by state agents solely for its benefit is virtually an action by the state.

The objection that plaintiff has commenced his action without leave of court first obtained, in cases where such leave is necessary, is waived, if not raised until after the joinder of issue.

Under Laws 1891, p. 355, § 7, providing that all suits necessary to protect the rights of the state in matters or property connected with the penitentiary and its management shall be prosecuted in the name of the board of state penitentiary directors," such directors, acting in their official capacity, may bring an action in their own names for the benefit of the state upon the official bond of the warden to recover on account of his defalcation of public funds.

Where evidence admitted in the trial of a cause has been subsequently stricken by the court on the ground that its relevancy nad not been shown, it is error for the court to subsequently base an instruction upon the evidence as if it were still in the case.

Appeal from Superior Court, Walla Walla County.Hon. W. H. UPTON, Judge. Reversed.

Remington & Reynolds, for appellants:

At common law no action could be maintained upon a bond by any party other than the obligee named therein; and the exceptions to this rule must depend upon statutory enactment. Our statutes recognized the fact that official bonds are sometimes given to protect private interests, and have prescribed the conditions upon which parties not named in the bond may maintain actions thereon. The state of Washington, in this case, was the proper party plaintiff and the only party interested in the bond, and the complaint states no cause of action in favor of the respondents. Crook County v. Bushnell, 15 Ore. 169; Northampton v. Elwell, 4 Gray, 81; Carmichael v. Moore, 88 N. C. 29; People v. Stacy, 74 Cal. 373.

It is reversible error to give instructions liable to mislead the jury that are not based upon legitimate evidence in the case. Edison, etc., Co. v. Canadian Pacific Nav. Co., 8 Wash. 370 (24 L. R. A. 315); Texas Land & Loan Co. v. Watson, 22 S. W. 873; Coughlin v. People, 18 Ill. 266 (68 Am. Dec. 541); Andreas v. Ketcham, 77 Ill. 377; Goldsmith v. McCafferty, 15 South. 244; Caw v. People, 3 Neb. 357; Newton Wagon Co. v. Diers, 10 Neb. 284; State v. Bailey, 57 Mo. 131. Where contradictory instructions are given, there is no way of telling which governs the action of the jury, and the erroneous instruction will not be cured by the proper one, even where the proper one is last impressed upon them (which was not the case in this instance). Parker v. Hull, 71 Wis. 368 (5 Am. Rep. 224); Clein v. State, 31 Ind. 480; Krouse, 30 Ohio St. 222.

Pittsburg, etc., Ry. Co. v.