Volume 10 — Washington Reports

<p> Appeal from Superior Court, Spokane County. </p>

<p>MUNICIPAL CORPORATIONS — POWER OE COUNCIL TO REMOVE MEMBERS — CONTRACTS OE OEEICER WITH CITY — SUFFICIENCY OE CHARGE OE VIOLATION OF STATUTE.</p> <p>Tbe common council of a municipal corporation is restricted in tbe right of expelling members to the express power given by statute.</p> <p>Under § 659, Gen. Stat. authorizing the removal of any city officer who wilfully violates the restrictions thereof against such officers’ being interested in any contract for furnishing supplies to the city, a charge against a councilman is too indefinite as ground for removal, when it alleges that he has violated § 659 of the code, “in having furnished lumber to the city of Ballard and in having presented a bill to the city for payment of same.”</p>

Motion by respondent to dismiss tbe appeal for the reason that the supreme court has no jurisdiction of the matter, and for the further reason that there is no statute or law of this state allowing appeals to the supreme court from such orders of the superior court as the one appealed from in this case.

<p>contracts — construction — whether conditional sale or CONTRACT FOR CHATTEL MORTGAGE.</p> <p>A contract providing that title to a certain electric light plant shall not pass from the seller to the purchaser until it is fully paid for as per contract is one of conditional sale, although a typewritten addition to the printed form of sale may provide that the promissory notes to be given for deferred payments must be secured by mortgage upon such plant and upon all the other property owned by the purchaser at the time the plant is placed in working order, and although the contract may further provide that the purchaser shall keep the plant fully insured as long as there is any amount due the seller, since it is apparent from the construction of the contract as a whole that it was not the intention of the parties that the title should pass until the provision with reference to the mortgage had been complied with.</p>

<p> Appeal from Superior Court, Spokane County. </p>

<p> Appeal from Superior Court, Spokane County. </p>

<p> Appeal from Superior Court, Spokane County. </p>

<p> Appeal from Superior Court, Spokane County. </p>

<p>SPECIFIC PERFORMANCE — CONTRACT FOR CONVEYANCE OF LAND-PLEADING — DEMURRER — RESCISSION—ESTOPPEL.</p> <p>A complaint in an action to enforce the specific performance of a contract was to convey land is not demurrable on the ground that the contract was signed by an agent, when the question of agency does not appear on the face of the complaint itself.</p> <p>Where a contract for the conveyance of land has been executed by the husband alone, a complaint in an action to enforce its specific performance is not demurrable from the fact that it alleges the tender of a deed in which both spouses join, as such tender does not raise a presumption that the land is community property.</p> <p>One who has contracted with a married man for the purchase of community property cannot refuse to complete the contract where both husband and wife jointly execute and tender the deed thereto.</p> <p>The neglect of the vendor, for nearly four months after the maturity of the deferred payments under a contract for the sale of land, to make tender of a deed, will not estop him from enforcing the contract where the parties thereto have not treated it as rescinded, and no hardship has resulted to the purchaser by reason of the delay.</p> <p>One who makes a contract for the sale of land cannot escape liabilities thereunder by assigning his interest in the contract to a third party.</p> <p>The conveyance by mistake to a third person of land contracted to be sold to another, will not operate as a rescission of the contract for the sale of the same, when the mistake is rectified by a conveyance to the vendor in time to permit of his tendering a good and sufficient deed to the purchaser under the contract for the sale of the land.</p>

<p>Appeal from Superior Court, Mason County.</p>

<p> Appeal from Superior Court, Kittitas County. </p>

<p>PRINCIPAL AND AGENT — LIABILITY FOR TORTS OF AGENT — MALICIOUS PROSECUTION — EVIDENCE.</p> <p>Where an agent employed to search for certain property which his principal had lost, and to take all legal steps necessary for its recovery, wrongfully caused the arrest of a person by charging him with the larceny of the property, the principal is not liable for such malicious prosecution, as the character of the employment did not authorize the commission of illegal acts on the part of the agent.</p> <p>In an action for malicious prosecution, under such circumstances, evidence that defendant stated that his agent had gotten himself into trouble by instituting criminal proceedings, and that he was going to stand by him and see him through, is insufficient to warrant a verdict against defendant.</p>

<p>AMENDMENT OE PLEADINGS — EVIDENCE — PAROL PROOE TO ESTABLISH mistake in written instrument.</p> <p>The fact that the court allows defendants to amend their answer at the trial, after three answers had already been filed in the case, does not constitute an abuse of discretion on the part of the court.</p> <p>Where it is sought to vary the terms of a written agreement on the ground that through mutual mistake it fails to express the agreement actually made, a mere preponderance of proof will not be sufficient, but the evidence establishing the mutuality of the mistake must be clear, unequivocal and convincing.</p>

<p> Appeal from Superior Court, Thurston County. </p>

<p>CORPORATIONS-INSOLVENCY--FRAUDULENT CONVEYANCES — ACTION BY RECEIVER TO RECOVER ASSETS — EVIDENCE — JUDGMENT —COLLATERAL ATTACK.</p> <p>The action of the court in placing an insolvent insurance company in the hands of a receiver, even if erroneous, cannot be attacked in an action by the receiver to recover certain property of the company, to the possession of which he, as receiver, is entitled.</p> <p>The transfer by an insurance company, which was insolvent and practically out of business, of a portion of its assets to certain creditors, who were either officers of the corporation or intimately connected therewith, was such a preference by an insolvent corporation as to constitute a fraudulent conveyance and warrant the recovery by the receiver of such corporation of the property so transferred.</p> <p>In a suit by the receiver of an insolvent insurance company to recover possession of stock notes fraudulently transferred by the company to the makers, the makers cannot set up the defense that the notes were executed upon the condition that they should not be binding unless approved by the state insurance commissioner, as such notes, having been delivered to the company to be used as assets, -would retain that character until their legal surrender to their makers.</p> <p>But slight testimony is required to establish a prima facie case, where it is sought to prove the small value of the assets of an insolvent corporation for which the appointment of a receiver is asked.</p>

<p>LOGS AND LOGGING — CLAIM OF LIEN — VERIFICATION BEFORE FOREIGN NOTARY — WHAT SERVICES LIENABLE — CONFUSION OF lienable with non-lienable items.</p> <p>The verification of a lien claim before a foreign notary, whose certificate is attested by his notarial seal, is sufficient to authorize the-record of the instrument in the proper county in this state.</p> <p>Where a person engaged in cutting, driving, and booming saw logs, has been employed for the work by one corporation, his right of lien cannot be defeated on the ground that he had been working for three different corporations engaged respectively in logging, driving logs and booming logs, when he has no knowledge of any of the corporations other than the one first employing him, and the three corporations had in fact the same officers, same manager, and same place of business.</p> <p>The labor of blasting rocks along a river bed in order to make a passage for logs in getting them from the woods to the place of booming is lienable, under Gen. Stat. § 1679.</p> <p>Laborers are not entitled to a logger’s lien for work performed in opening a public road, although employed in such labor by the logging company in order to make the road practicable for teams in hauling supplies for the logging camp.</p> <p>Although a loggers’ lien may be claimed for both lienable and non lienable items the lien will not fail, in the absence of an apparent intention to perpetrate a fraud, if there is no confusion of claims on the face of the lien notice, and the evidence segregates the two classes of claims.</p>

<p> Appeal from Superior Court, Douglas County. </p>

<p>assault with intent to commit rape — conviction oe assault and battery.</p> <p>Actual violence alleged as a fact in tlie transaction of an assault with intent to commit rape will justify a conviction of assault and battery.</p>

<p> Appeal from Superior Court, Walla Walla County. </p>

<p> Appeal from Superior Court, Spokane County. </p>

<p> Appeal from Superior Court, Walla Walla County. </p>

<p> Appeal from Superior Court, Walla Walla County. </p>

<p>Appeal from Superior Court, Yakima County.</p>

<p> Appeal from Superior Court, Chehalis County. </p>

<p>ADVERSE POSSESSION — EVIDENCE — STATUTE OF LIMITATIONS— EFFECT OF SUBSEQUENT DISABILITY,</p> <p>Adverse possession may be established by proof that the premises in controversy were generally reputed, in the community where situated, to belong to the party setting up such claim of title.</p> <p>Possession by the grantee in a deed to land placed in escrow, but never delivered, and that of the grantees’ agents, is the possession of the grantor for the purposes of adverse possession.</p> <p>When the statute of limitation has commenced to run against a party, its operation is not arrested by his subsequent death, before the end of the statutory period.</p> <p>Adverse possession for ten years subsequent to the passage of the Code of 1881, is sufficient to bar a recovery, although at the time the right of action accrued the limitation was twenty years.</p>

<p>COMMENCEMENT OF ACTIONS — TIME FOR ANSWER — ACTION AGAINST CORPORATION — VENUE — STATUTES—TITLE—REPEAL BY IMPLICATION.</p> <p>The act of 1893 (Taws, p. 407) providing for the manner of commencing civil actions in the superior courts, repeals and supersedes all former laws upon the subject, and fixes the time for answer in response to summons as twenty days in all cases.</p> <p>Laws 1893, p. 407, being “ an act to provide for the manner of commencing civil actions in the superior courts, and bringing the same to trial,’’ does not violate the constitutional inhibition against more than one subject being embraced in any bill.</p> <p>Where an action is brought against a corporation in the wrong county, the court has no jurisdiction to render judgment, as sections 161 and 162, Code Proc., providing that trial may be had in the county where the action is commenced, although not the proper county, “unless the defendant files an affidavit of merits, and demands that the trial be had in the proper county,” has no application to actions against corporations, such actions being governed by the provisions of § 160, Code- Proc., prescribing in what counties actions against corporations may be commenced.</p>

<p>APPEAL — SERVICE OF NOTICE — PARTIES — STATEMENT OF FACTS —EQUITY CAUSES — ASSIGNMENT OF MORTGAGES — REGISTRATION.</p> <p>Service of a notice of appeal upon one member of a law firm, who appeared for a party to the action, is a good service when the other member of the firm is dead.</p> <p>Where a lawyer appears for himself and as attorney for his wife, service of a notice of appeal upon him, directed to both, is a good service.</p> <p>Under laws 1893, p. 120, §4, proof of service of the notice of appeal upon the prevailing party must be filed within five days after service, but proof of service upon co-parties with the appealing party may be filed subsequently.</p> <p>Xhe service of a proposed statement of facts upon the only parties adverse to the appellant is sufficient, under Daws 1893, p. 114, § 9, although there are other parties to the action who do not join the appellant in the appeal.</p> <p>Under Daws 1893, p. 118, § 17, and p. 130, § 21, an equity case is reviewable upon the law without the production of a complete record.</p> <p>Where the guarantor of a promissory note has been made a party defendant to an action, the judgment in which involves his contingent liability, the plaintiff is estopped from raising any question as to the guarantor’s appealable interest.</p> <p>Assignments of mortgages are not within the operation of the recording acts of this state.</p> <p>A mortgage was executed by S. in February, 1889, upon certain land, and the mortgagee, D. when filing the same for record, also filed an assignment of the mortgage to his wife, which was recorded along with the record of the mortgage. In May, 1889, D. and his wife assigned the note and mortgage to a third person, H. In January, 1890, the mortgagor S. conveyed the mortgaged land to D.’s wife, she being the assignee of record of the mortgage. Dater in the same year, E.’s wife wrote a satisfaction of the mortgage upon the margin of the record, which was attested by the auditor, and thereafter, in September, 1890, L. and wife negotiated a loan upon a portion of the land. H. did not place the assignment to him upon record until August, 1892. Held, that the mortgage held by H. was entitled to. priority.</p>

<p>WATER RIGHTS — PRIOR APPROPRIATION — SUFFICIENCY OF EVIDENCE.</p> <p>In an action to enjoin the defendant from interfering with plaintiffs’ use of the water of a certain stream, where the issue is as to which of the parties was the prior appropriator thereof, the issue should be resolved in favor of the plaintiffs where positive proof establishes their appropriation from the stream in May, 1881, while the evidence on the part of the defendant shows that his grantor had turned water into the ditch some time between the first of May and the last of November, 1881, being unable to more definitely fix the time, and that he had made no use of the water, except for drinking purposes, up to the time of the sale of his premises to defendant.</p> <p>The conveyance of an irrigating ditch does not convey any water rights, where the ditch is not at the time of conveyance connected with the creek from which the water is obtained, or is not constructed with sufficient fall to carry the water on the land.</p>

<p>GARNISHMENT — JUDGMENT AGAINST GARNISHEE — AMOUNT IN CONTROVERSY-JURISDICTION OE SUPREME COURT.</p> <p>When the only issue in a garnishment proceeding is as to whether or not the garnishee has in his possession personal property belonging to the principal debtor, it is error, upon a finding against the garnishee, to enter a money judgment against him.</p> <p>When the object of a garnishment proceeding is to ascertain the title and right of possession of personal property, instead of the recovery of money, the action is within the appellate jurisdiction of the supreme court although the principal debt may be less than two hundred dollars.</p>

<p> Appeal from Superior Court, Mason County. </p>

<p>APPEAL — TIME OF FILING STATEMENT OF FACTS.</p> <p>Under Laws 1893, p. 116, § 13, providing that a proposed statement of facts shall he filed within thirty days after final judgment, which time may be enlarged by the court, but not for more than sixty days additional, upon good cause shown, a statement of facts filed 91 days after final judgment will be stricken from the files upon motion therefor.</p> <p>The objection that the statement of facts was not filed within the time prescribed by the statute, being a jurisdictional question, may be raised for the first time in the appellate court.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>PROHIBITION, WRIT OP — WHEN LIES TO SUPERIOR COURT — PROCEEDINGS PENDING APPEAL.</p> <p>A writ of prohibition will lie to prevent a superior court from setting aside a sale of real estate in the administration of a decedent’s estate, when the proceedings therein have been set up in an action of ejectment by the purchaser, as the basis of his title, and an appeal from the judgment in the action of ejectment is pending in the supreme court, the action being between the same parties in interest, and the proceedings in the administration of the estate relating to the sale having been made a part of the action pending in the supreme court, and necessary to its proper determination.</p>

Action by six farm laborers to foreclose liens upon certain wheat which had been harvested and threshed by them. The appellants, having levied attachments upon the same wheat, were made party defendants with the person who had employed plaintiffs.

<p>Fraudulent conveyances — rights of bona fide purchaser.</p> <p>A creditor cannot recover the possession of property sold by the debtor to another person, on the ground that it is a fraudulent conveyance, when the purchaser has in good faith paid a portion of the purchase price, except on repayment by the creditor of that part of the purchase price paid.</p>

<p>CONTRACT FOR SAI/E OF BAND — FORFEITURE BY VENDOR — WAIVER — ACTION TO RECOVER POSSESSION — TENDER OF DEED — RESCISSION.</p> <p>Where a contract for the sale of land provides for payment of the purchase price in installments, the vendor is not required to make a tender of a conveyance before declaring a forfeiture for non-payment of installments due.</p> <p>A provision in a contract for the sale of land giving the vendor power to declare the contract forfeited upon failure of the purchaser to pay promptly the installments of purchase price therein provided for, carries with it not merely the forfeiture of the contract, but the forfeiture of all payments made thereunder.</p> <p>Failure of a vendor to declare a contract for the sale of land forfeited until three installments have become due, the contract providing that forfeiture may be declared for default in payment of any installment due, does not constitute laches or a waiver of the vendor's rights.</p> <p>In an action by a vendor to recover possession of land which a purchaser and his wife had entered into possession of under a contract of sale, which the vendor had since declared forfeited, the wife of the purchaser is a proper party defendant to the action.</p> <p>A purchaser under a contract of sale of land, who is in default in making payments upon installments due, cannot invoke the equity power of the court for the purpose of rescinding the contract.</p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, Kittitas County. </p>

<p> Appeal from Superior Court, Walla Walla County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>Appeal from Superior Court, Pierce County.</p>

<p>municipal corporations — liability for change of street GRADE — LIMITATIONS.</p> <p>The establishment of street grades within the meaning of Gen. Stat. § 759, prohibiting changes of grades without prepayment of damages, where injury accrues, contemplates a grade established by the actual improvement of a street to a grade, or the formal adoption of one by ordinance or resolution.</p> <p>Under Laws 1883, p. 63 (Gen. Stat. § 759), prohibiting a change in the established grade of any street without first compensating the owner of any building constructed upon said street for the accriiing damage, an action will not lie for damages on the part of a property owner who has constructed a building on a street prior to the establishment of the grade thereof by ordinance, although he may have done the work pursuant to grade stakes set him by a deputy showing a grade proposed by the city surveyor, and in accordance with which bids for the improvement of the street had been called for, but no other action had been taken by the city council and mayor confirming or establishing the proposed grade, which they afterwards by ordinance fixed several feet lower.</p> <p>The plaintiff in an action for the recovery of damages resulting from a change of street grade cannot file an amended complaint setting up as a second cause of action the injury to his land caused by raising the grade of the street above the natural surface, when the work has been done more than three years prior to the filing of the amended complaint.</p>

<p>APPEAL — FAILURE TO FILE TRANSCRIPT — DISMISSAL.</p> <p>An appeal will be dismissed where the only excuse for faitee to file the transcript within the time required by law is the certificate of the clerk “that owing to the press of other business in my office I have been unable to sooner make up this transcript.”</p>

<p> Appeal from Superior Court, King County. </p> <p>Opinion on motion to dismiss the appeal.</p>

<p>Appeal from Superior Court, Walla Walla County.</p>

<p>REPLEVIN — JUDGMENT AGAINST SURETIES ON BOND — LEVY— GOODS IN CUSTODIA LEGIS — APPEAL — AMOUNT IN CONTROVERSY.</p> <p>Where personal property seized under attachment as the property of the attachment debtor is claimed by third persons, and upon a trial of title to the property it is found to have a value exceeding $200, an appeal to the supreme court will lie from the judgment in such proceeding, although the amount of the claim of the attaching creditor may be for a less sum.</p> <p>Where an action is brought under Code Proc., § 255 et seq., to recover the possession of personal property, the judgment therein can only be for the return of the property, or, in case return cannot be had, for its value, and there is no authority in such action when the verdict is in favor of defendant for entering judgment of any kind against the sureties in the bond given by plaintiff to secure possession of the property.</p> <p>Where a sheriff has levied upon goods under an attachment, and possession thereof has been obtained by another under the terms of a delivery bond which requires a return to the officer, if return thereof shall be adjudged, the goods are in custodia legis, and cannot be levied upon by another officer pending the litigation of the case in which the original attachment was issued.</p>

<p>Appeal from Superior Court, Pierce County.</p>

<p> Appeal from Superior Court, Whitman County. </p>

<p>PROMISSORY NOTE EXECUTED BY HUSBAND — COMMUNITY DEBTS— liability oe community property — proper parties to ACTION.</p> <p>Any liability incurred by the husband in the prosecution of any business is prima facie a charge against the community ; and the presumption to that effect will continue in force until it is overthrown by proof that such liability was not incurred in any business of which the community would have had the benefit, if profit had been realized therefrom.</p> <p>The community character of a debt is not changed by the fact that it is evidenced by the negotiable note of the husband alone; and a judgment rendered upon such note is prima facie enforceable against the property of the community.</p> <p>In an action upon a negotiable promissory note executed by the husband alone for what is alleged to be a community debt, the wife is a proper party defendant; and, upon a verdict or finding in favor of the plaintiff upon such issue, he is entitled to have the debt adjudged as that of the community. (Commercial Bank v. Scott, 6 Wash. 499, qualified).</p>

<p> Appeal from Superior Court, Clarke County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>CRIMINAD DAW — BURDEN OE EROOE — INSTRUCTIONS — HARMDESS ERROR — MAYHEM.</p> <p>The burden can never be cast upon the defendant in a criminal prosecution of showing the non-existence of the facts constituting the crime with which he is charged.</p> <p>In a proseculion for mayhem for biting off a man’s ear, in which the defendant’s own testimony showed that he was engaged in a fight with the injured party, that the fight was being waged by such party without the use of weapons and without any attempt on his part to inflict great bodily injury, an instruction that the burden of proof was upon defendant to show that he could not defend himself from bodily harm without resorting to such act, while clearly erroneous, cannot be said to be prejudicial.</p>

<p>VACATION OP JUDGMENT — DILIGENCE OP MOVING PARTY — DISCRETION OP COURT — RIGHT TO OPEN AND CLOSE — APPEAL — OBJECTIONS NOT RAISED BELOW.</p> <p>While the party seeking to have a judgment set aside must proceed with diligence, within the year allowed by § 1395, Code Proc., the question of diligence, as well as the sufficiency of the showing, is addressed to the discretion of the lower court, and its action in granting a petition therefor will only be set aside when it appears that there is an abuse of such discretion.</p> <p>Where a judgment by default has been set aside on petition therefor and a new trial granted, error of the court in ruling that the burden of proof is on the defendant to show a valid defense, thus depriving plaintiff of the right to open and close, cannot be urged on appeal, in the absence of an exception at the trial.</p>

<p>Appeal from Superior Court, Pierce County.</p>

<p>ATTEMPT TO COMMIT RAPE — EVIDENCE — PENAI/CY—EXCESSIVE PUNISHMENT.</p> <p>The fact that a defendant convicted of an attempt to commit a rape had theretofore borne a good character, and that the alleged crime had been committed under circumstances which rendered it certain that others not concerned in the transaction were sure to lcnow of it, does not raise such a doubt as to justify the appellate court in disturbing the verdict on the ground of the insufficiency of the evidence, when there is enough direct evidence, if believed, to warrant a conviction.</p> <p>Under §§ 28 and 303, Penal Code, an attempt to commit sexual intercourse with a female under the age of consent is punishable, although the act is not accompanied with violence.</p> <p>Under § 303, Penal Code, providing that the attempt to commit any crime shall be punished by imprisonment for a term not exceeding one-half of the longest term prescribed for the completed crime, and under § 28, Penal Code, punishing carnal intercouse with a female under the age of consent by imprisonment for life or any term of years, a sentence of imprisonment for ten years is warranted upon a conviction of an attempt to commit such crime.</p> <p>A sentence of imprisonment for ten years for an attempt to have carnal intercourse with a.female under the age of consent is not excessive, although the actual injury done was slight.</p>

<p>TRUST — ACTION EOR CONVERSION — PLEADING.</p> <p>In an action to recover from a bank the value of a note and mortgage assigned to it as collateral security, the complaint is proof against a general demurrer when it sets out the execution of the note and mortgage to plaintiff, with a description of the property mortgaged, and alleges that the note and mortgage were assigned to defendant in trust, according to the terms of a contract accepted by the defendant, whereby defendant should collect said note and out of the proceeds pay certain indebtedness of the plaintiff to itself and others, and deliver the balance of the moneys collected thereunder to plaintiff; that on a certain day, in violation of said contract, and without plaintiff’s consent,the defendant sold and assigned said note and mortgage and converted the same to its own use, refusing upon demand either to return the note and mortgage or to pay over to plaintiff the amount as due thereunder.</p> <p>A complaint is not demurrable because the prayer for judgment is for a larger amount than is warranted by the facts.</p>

<p>fixtures — rights of subsequent mortgagee — when mortgage tares effect.</p> <p>Where a building has been built for brewery purposes, and to. further such object there has been built into it, as an essential part, a direct expansion refrigerating plant, such machinery becomes a part of the realty as to mortgagees of the premises, although the contract of sale between vendor and purchaser of the machinery treats it as personal property.</p> <p>The fact that bonds were executed as of a certain date, and a mortgage to secure their payment given to a trustee for the bondholders, will not give a legal existence to the mortgage until the date of the sale and delivery of the bonds.</p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, Chehalis County, </p>

<p>DEEDS — WITNESSES — REGISTRATION—DETECTIVE ACKNOWLEDGMENT — ETEECT OT CURATIVE ACTS.</p> <p>Under a statute requiring two witnesses to a deed to land, there must be two witnesses to the signature of each of the parties executing the deed.</p> <p>A deed to real property sufficiently executed by a wife, acknowledged before a proper officer and witnessed by two witnesses, which is defective in having but one witness to the husband’s signature, is, nevertheless, entitled to record, although in fact a deed to community property instead of the wife’s separate realty, and, being of record, is constructive notice to subsequent purchasers of the grantee’s equities therein.</p> <p>Although at the time of the execution and record of a deed the acknowledgment was invalid for want of authority in the officer before whom it was taken, yet, where under a subsequent curative act such acknowledgments are validated in all cases where the rights of third parties have not intervened, the record of the instrument, which was improper at the time, becomes thereby cured, and is full constructive notice to all subsequent purchasers.</p> <p>Prom a consideration of the curative acts passed from time to time in this state relating to defective acknowledgments, it appears that it is the settled policy of the law not to render conveyances in good faith signed by the grantors ineffectual in consequence of an informality or defect as to proof of their execution either in the matter of acknowledgment or of attesting witnesses.</p>

<p>APPEAL — ADMISSION OE IMCOMPETENT EVIDENCE — HARMLESS ERROR.</p> <p>A judgment will not be reversed because of the erroneous admission of certain evidence, if it appears from the whole evidence that the court was justified in his conclusion, outside of any influence which the admission of the incompetent evidence may have had upon his mind.</p> <p>In an action to recover the price of goods sold, the admission of an order therefor, signed in defendant’s name by another, directing the shipment of the goods, no agency having been shown, is not reversible error, where it subsequently appears that the person who brought the order to plaintiff had previously obtained goods for defendant, and had been in plaintiff’s store with him, and the latter does not deny the receipt of the goods sued for, nor of those previously obtained.</p>

<p>ACTION ON NOTE — ANSWER — EXTENSION OE PAYMENT — CONSIDERATION — EVIDENCE — CUSTOM—-JUDICIAL NOTICE — JUDGMENT.</p> <p>In an action upon a promissory note executed in bank, which, by its terms is past due, an answer states a good defense when it alleges that on the day of the execution of the note and after its delivery .the plaintiff and defendants entered into an oral agreement, in consideration of the deposit of certain collateral with the plaintiff, whereby it was agreed that the time of payment of the note should be extended for an additional three months beyond the time expressed upon the face of the note ; and that the plaintiff retains said security and refuses to extend the payment or permit a renewal of the note ; and that, by reason of such facts, said note is not due and will not be until the time of the extension agreed upon. (Hoyt, J., dissents).</p> <p>Where an extension of the time of payment of a promissory note is pleaded in defense of an action thereon, without setting out the rate of interest to prevail during the extended time, the presumption is that, if the payment has been extended, all the other conditions of the note would remain just as they were, and that the note would draw the same rate of interest until the expiration of the extension.</p> <p>Although it is the custom of banks to extend the time of payment of notes only by renewal, such custom is not a matter for judicial notice in the face of a pleading setting up a special contract by a bank in violation of the established custom.</p> <p>Although a pleading may fail to allege any value to certain collateral pledged as security for the extension of payment of a note, yet some value will be presumed from the fact that, as further alleged, such collateral was accepted and retained upon the agreement that the note should be extended.</p> <p>The fact that a promissory note falls due during the pendency of an action prematurely brought thereon, will not entitle plaintiff to judgment.</p>

<p>VACATING JUDGMENT — PROCEDURE — SUFFICIENCY OF PETITION.</p> <p>In a proceeding fcr vacating a judgment under the provisions of Code Proc., § 1393 et seq., no affidavit of merits is necessary, the petition for vacating judgment being required to state facts upon oath ; nor is it necessary to tender an answer until after it is determined that the grounds alleged for the vacation are sustained.</p> <p>Where it is sought to procure the vacation of a judgment on the ground that it was rendered without proper service having been had upon defendant, and was based upon a promissory note which defendant had never executed, the proceeding is governed by the provisions of Code Proc., § 1393 et seq., and not by those of § 221.</p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p> Appeal from Superior Court, King County. </p>

<p>MUNICIPAL CORPORATIONS — LIABILITY FOR DEFECT IN BRIDGE— PROXIMATE CAUSE.</p> <p>The fact that a runaway team of horses while under full headway, dashes over the side of a bridge at a point where the city has provided no guard rail, does not render the city liable for the injury, if the bridge was in a reasonably safe condition, and the fright of the horses had not been caused by any negligence chargeable to the city.</p> <p>A city is not the insurer of the safety of its streets, but is only required to keep them in a safe condition for ordinary travel.</p>

<p> Appeal from Superior Court, Jefferson County. </p>

<p>PLEADING — DEPARTURE — ACTION ON QUANTUM MERUIT — ALLEGATION OE SPECIAL CONTRACT IN REPLY — WAIVER OE ERROR.</p> <p>A party cannot set np one cause of action in his complaint and after answer is made abandon that and make an entirely new cause of action on a reply.</p> <p>Where the complaint in an action is founded on a quantum meruit for labor performed and materials furnished for defendant, and the answer sets up that the work was done under a written contract, the terms of which are set forth, a reply admitting the terms of the contract and that the work was to be done for a stipulated price, but alleging that plaintiff was prevented from fulfilling his contract by the failure of defendant to perform conditions thereof on his part, constitutes such a departure in pleading as to warrant a non-suit.</p> <p>Where defendant has objected to the introduction of evidence on account of a departure in plaintiff’s pleadings and has afterwards moved for a non-suit, he has thereby saved his right to urge the error on appeal, although he has failed to move for judgment on the pleadings.</p>

<p>BUILDING CONTRACTS — CONSTRUCTION — EVIDENCE—ACCORD AND SATISFACTION — ACCEPTANCE OF CHECK.</p> <p>Plaintiff brought an action upon a building contract, claiming that the terms of his agreement consisted only of his bid therefor according to certain plans and specifications and its oral acceptance by defendants. The answer set up a written agreement signed by one of the defendants, as the only contract entered into between the parties, alleging that the signing by such defendant was done by him and accepted by plaintiff as a sufficient execution of the contract, for both defendants, that such defendant was duly authorized in that behalf by his co-defendant, who adopted the instrument, that all parties acted upon it as the contract of the defendants, and that there had been a final settlement in accordance with the terms of such written contract. The reply was a general denial. The written contract provided for demurrage, that plaintiff should pay for a builder’s insurance policy, and that extra work should be settled for as determined by the architect, and that payments should be made upon the architect’s certificate. The plaintiff claimed $6,653 for extras and refused to allow anything for demurrage, and insurance paid by defendants. The architect allowed, and it was conceded by defendants, that the extras were worth $5,000, and the defendants also claimed on account of demurrage and insurance, $6,479.07. The evidence showed that the terms of the written contract had been followed by the parties till the completion of the building, and that when the question of settlement was up plaintiff did not deny the existence of such contract as a binding agreement, but complained that he was being unfairly treated under the contract. Held, that the verdict of the jury, which, from its amount, was plainly based upon the assumption that the terms of the agreement consisted of nothing but the plaintiff’s bid and the oral acceptance of it, should be set aside as against the weight of evidence.</p> <p>Where one claims that he had a contract for a certain purpose, some of whose terms were left to be stated in a writing, a paper afterward signed by him with a view to setting forth such contract, but which was not consummated as a valid agreement, must be considered as the highest evidence of what the terms of his contract were.</p> <p>Whether the receiving of a check for the amount of a disputed claim is an acceptance of it as a full settlement, although the check recites that it is, is a question proper to be submitted to the jury, when there is a controversy as to the facts.</p>

<p>COUNTY COMMISSIONERS — MISCONDUCT IN OFFICE — REMOVAL— SUFFICIENCY OF INFORMATION.</p> <p>The refusal of county commissioners to grant more than two liquor licenses in certain unincorporated towns will not subject them to removal on the ground of collusion with others to monopolize the liquor business in said town for the purpose of defrauding the county, when the statute gives the commissioners the sole and exclusive authority to regulate, restrain, license and prohibit the sale of intoxicating liquors outside the corporate limits of cities and towns.</p> <p>The appointment by county commissioners of a purchasing agent for the county, while not a power expressly granted them, is one necessary to the proper exercise of the powers granted, and is therefore legal.</p> <p>In an information in the nature of quo warranto to remove certain county commissioners from office, it was alleged that “defendants, in their official capacity, colluded and conspired together, during the year 1893, at the beginning of their term of office, to cheat and defraud said county, by auditing and allowing themselves compensation in the way of per diem and mileage, and in pursuance of said collusion and conspiracy, willfully and corruptly continued the sessions of said board .of county commissioners at divers times during said year from time to time and day to day, and were wrongfully and illegally in session for the purposes aforesaid the total number of eighty-two days, for which time, so wrongfully in session, the defendants willfully and corruptly audited and allowed themselves per diem.” Held, too general and indefinite in its allegations to show any illegality in the acts of the commissioners.</p> <p>The allowance of per diem and mileage to county commissioners of which there is no record in the minutes of their proceedings cannot be urged against them as a malfeasance in office, as the law makes it the business of the auditor as clerk of the board to record such bills, and there can be no presumption that the county commissioners are responsible for the failure of the auditor to perform a clerical duty.</p> <p>The county commissioners having the power under the law to contract for the building of bridges, a mistake of judgment in entering into a contract therefor would not subject them to an information seeking to deprive them of their office.</p> <p>An information for the purpose of ousting an officer from office for alleged malfeasance in the performance of official duties must state the facts upon which the action is based as definitely as they are required to be alleged in an information in a criminal action.</p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>INSURANCE — CONDITIONS OE POLICY — COPIES OE INVOICES AND ACCOUNTS.</p> <p>Where one of the conditions of a policy of fire insurance is that the assured “shall produce all books of account, bills, invoices and other vouchers, or certified copies thereof if the originals be lost, ’' for the examination of the insurer, the assured cannot recover on the policy unless he complies substantially with such condition, and the fact that it may not be in his power to produce all the lost originals, will not excuse his failure to produce such as may be obtainable.</p>

Consolidated actions for the foreclosure of mechanics’ liens against the premises of F. C. Lawrence and wife.

<p> Appeal from Superior Court, Whatcom County. </p>

<p>PARTIES ON APPEAR — NOTICE — FARM LABORER’S LIEN — ENFORCEMENT — EVIDENCE — LIEN POR TEAM WORK.</p> <p>Failure to serve notice of appeal upon a defendant who does not appear in the action is not ground for dismissal of the appeal.</p> <p>In an action to enforce a laborer’s lien upon certain farm products, evidence is competent which tends to show that plaintiff was in fact interested in the contract made by the owners of the products with another for the raising of the crops, and that the cost of production of such crops had been fully paid under the contract.</p> <p>Semble, that Laws 1891, ch. 75, giving farm laborers liens upon crops is constitutional.</p> <p>Semble, that under the statute providing a lien for farm laborers no lien can be obtained for work performed by a team, but might be maintained for the labor of a person and a team, where there is no separate specification of contract price for person and team.</p>

<p> Appeal from Superior Court, Whatcom County. </p>

<p>APPEAL — PILING BOND — TIME ALLOWED — STATEMENT OB PACTS— EXECUTION SALE OF HOMESTEAD — EFFECT OF ABANDONMENT ON SALE — VENDOR’S LIEN — SUBROGATION.</p> <p>Under Daws 1893, p. 120, requiring an appeal to be taken within six months after the entry of judgment and an appeal bond to be filed within five days after notice, it is sufficient to file the appeal bond within five days after the expiration of the six months, when the notice of appeal has been given 'on the last day of that period.</p> <p>Where a case is heard upon an agreed statement of facts, stipulated to be all the facts in the case, and the decree is based thereon, no other statement of facts is necessary on appeal.</p> <p>A sheriff’s deed, based upon an execution sale of a lot of lan, dis void, under the homestead law, when it appears that the lot was the only real property of the execution defendants in the state, that they occupied it as the family residence, and that it was worth less than one thousand dollars; that they claimed it as exempt, and took every means to prevent the sale by notifying the sheriff, warning purchasers, and protesting against confirmation.</p> <p>One who merely lends money to pay the purchase price of land is not subrogated to the vendor’s lien.</p> <p>The fact that a judgment debtor, after a void execution sale of his homestead and the execution of a sheriff’s deed thereto, sells the land to a third party and removes therefrom, will not cure the invalidity of the sheriff’s deed.</p>

<p> Appeal from Superior Court, King County. </p>

<p>APPEAL — DECISION INVOLVING VALIDITY OE STATUTE.</p> <p>In an action to recover for legal services in procuring the re-incorporation of a city which had been illegally incorporated, no question can be raised as to the validity of a statute, although one of the defenses relied upon is the invalidity of the prior incorporation and want of authority to employ plaintiff, when the court in submitting the case to the jury expressly instructs them that unless they find that plaintiff was employed on behalf of the people of the city to perform the services alleged, and that such services were performed and were necessary to such re-incorporation, and that the defendant accepted the benefits thereof and ratified the employment and agreed to pay for the same, they must find for defendant; and in such case, the amount involved being less than two hundred dollars, the supreme court has no jurisdiction of the case on appeal.</p>

<p>Appeal from Superior Court, Snohomish County.</p>

<p> Appeal from Superior Court, Skagit County. </p>

<p>ASSIGNMENT FOR BENEFIT OF CREDITORS — EFFECT UPON ATTACHMENT IN FOREIGN STATE — FILING CLAIM WITH ASSIGNEE.</p> <p>Although by the law of this state an assignment for the benefit of •creditors would operate to dissolve a prior attachment, yet, in case of the levy of attachment in a foreign state upon the property of a citizen of this state, the levy, if valid where made, would not be affected by the subsequent assignment of the debtor here.</p> <p>The filing by a creditor of his claim with the assignee of an insolvent estate is not an abandonment of any rights he may have under a prior attachment levied in a foreign state; but such creditor becomes thereby a party to the insolvency proceedings and will be bound by them.</p> <p>Where an attaching creditor in a foreign jurisdiction also files his •claim with the assignee of his debtor, the amount received by means of the attachment ought to be deducted from the claim as filed with the assignee, and the balance treated as the true amount of indebtedness.</p>

On the trial of appellant the state introduced in evidence a letter, written to,the postmaster, Cowgill, and signed with the name of the deceased, alleging that the Wilson family-owed the deceased money. There was evidence to show that appellant had inquired of Cowgill whether he had gotten such a letter, and if he did to pay no attention to it, as the person had written similar letters to other persons.

The judgment under which appellant claimed a lien on the property of M. F- Baer, was rendered in an action brought in the superior court of Whatcom county, Washington, by appellants as plaintiffs against eight defendants, in-eluding Baer, as partners doing business under the firm name of the Blaine Improvement Company.

<p> Appeal from Superior Court, King County. </p>

<p>PRINCIPAL AND SURETY — STATUTE FOR PROTECTION OF SURETIES— RES JUDICATA — JUDGMENT AGAINST SURETY WITHOUT SERVICE ON PRINCIPAL — ACTION BY SURETY — VARIANCE — SUIT BY EXECUTOR AFTER FINAL ACCOUNTING — LIMITATIONS!</p> <p>The statute permitting sureties, in an action against them and their principals, to have the question of suretyship adjudicated, is not a limitation of their rights as existing before its enactment, but is intended as an additional and more complete remedy than existed under the common law.</p> <p>The doctrine of res judicata does not apply to an action brought by a surety to recover from his principal such portion as has been paid upon a judgment obtained against them in a former action, in which the principal was a defendant, but in which no judgment had been taken against him for the reason that he was a non-resident of the state and did not appear in the action.</p> <p>Answers to interrogatories propounded to a defendant, under Code Proc., §§ 1660-1665, may be put in evidence, and, as evidence, are subject to contradiction.</p> <p>Where one has transferred all his sawmill business and timber lands to another, becoming the agent of the latter in conducting the mill business, it being within the scope of his authority to secure logs for its use, a contract entered into by the agent, whose primary object is to secure a large quantity of logs at a cost not in excess of the market price, is binding on the principal, although one of the incidental provisions of the contract is, that a certain portion of the purchase price shall be applied upon a judgment obtained against the agent, while he was conducting the business prior to its transfer to his principal.</p> <p>Where a judgment has been rendered against sureties without fault on their part and after a defense made in good faith bv them, such judgment will be conclusive in an action by them to recover money which they have paid on account thereof, if the principal had knowledge of the action, even though he was not served with process therein.</p> <p>The fact that a judgment against two sureties was against them as partners and not as individuals, while one of the sureties brings an action against the principal and sets up an individual judgment which he has been compelled to pay, does not constitute such a variance as to justify reversal, when it does not appear that the defendant is injured thereby.</p> <p>Although a final account in the administration of an estate has been rendered and an order of distribution made and carried into effect, such facts will not be prejudicial to an action by the executor in the interests of the estate, if he has not received his final discharge nor his bondsmen have been released.</p> <p>The fact that a non-resident owns property in the state liable to attachment will not set the statute of limitations running from the time the right of action against him accrues, but the running of the statute remains suspended during his absence from the state.</p>

<p>SPECIFIC PERFORMANCE — REMEDY AT LAW — LEASE OF COMMUNITY PROPERTY.</p> <p>Where a tenant has gone into possession of community land under an agreement of husband and wife to execute to him a valid lease for a period of five years, but the lease has been executed by the husband alone, the tenant is entitled to specific performance of the contract, on showing performance of all the conditions on his part.</p> <p>The fact that a tenant, if ejected, would suffer but little damage, for which he would have a remedy at law, is not sufficient to except the case from the rule that where a tenant has entered into possession under an agreement for a lease he is entitled to specific performance.</p>

<p>MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — ENFORCEMENT OF ASSESSMENTS — ACCEPTANCE OF WORK — ESTOPPEL OF PROPERTY OWNER.</p> <p>A municipal corporation cannot enforce the assessment for a street improvement, when the contract as entered into for the work makes an assessment district which is not in conformity with the ordinance passed by the city council authorizing the improvement.</p> <p>In an action to enforce the collection of assessments for a street improvement, the defendants may show that the improvement has not been made in accordance with the contract and is a damage instead of a benefit to the adjoining property owners, when they have not been concluded by a legal acceptance of the work by the proper city authorities.</p> <p>In such an action, defendants are not estopped to deny the validity of the assessment, even though the work had been accepted by the proper authorities, when it is shown that the property adjoining the improvement has been damaged instead of benefited, that the work has not been done in accordance with the contract, that defendants have remonstrated against the manner in which the work was being done, and that the defects in the work were so open and notorious that the city must be presumed to have taken notice of the non-fulfillment of the contract on the part of the contractor.'</p>

<p> Appeal from Superior Court, King County. </p> <p>The facts are stated in the opinion and in Moore v. Brownfield, 7 Wash. 23.</p>

<p> Appeal from Superior Court, Snohomish County. </p> <p>Action by the Washington Rock Plaster Company against August Johnson and wife for foreclosure of a lien for material furnished and labor performed in plastering a building for defendants.</p> <p>Action by Wheeler, Osgood & Company, a corporation, against August Johnson for foreclosure of a lien for lumber and other materials furnished by them in the construction of said, building. The lien notice of plaintiffs set up the following claim, to-wit: “That the builder’s materials as set out in Exhibit B hereto attached and made a part hereof, were furnished, sold and delivered, from time to time, as appears from Exhibit B, on the orders of the said Duff, between the 21st day of December, 1891, and the 25th day of January, 1892, inclusive, and as ordered and needed in the construction of said house by the said Duff. That no price was agreed on for said materials set out in Exhibit B at the time they were ordered and furnished, but the fair and reasonable value thereof at the time furnished was as shown in Exhibit B, and amounted in all to the sum of one hundred and. eighty-two and ninety-five one hundreths dollars.”</p> <p>In this action the Bank of Everett, and its assignee, intervened by way of cross-complaint, seeking to foreclose a mortgage on the same premises executed by the defendants, Johnson and wife. The Mitchell Eand and Improvement Company also filed a cross-complaint in the action, seeking to foreclose a contract made between it and Johnson and wife for the purchase of the real estate upon which the building in controversy was erected, on the ground of a nonpayment of installments due under said contract. Other defendants also answered by cross-complaints setting up liens for labor and material.</p> <p>The two cases were consolidated for the purposes of trial, and from the decree rendered by the court defendants Johnson and wife appeal.</p>

<p> Appeal from Superior Court, Snohomish County. </p>

<p>LANDLORD AND TENANT — ACTION FOR RENT — EVIDENCE — ASSIGNMENT OF LEASE — PAROL PROOF OF CONTENTS — REGISTRATION —EFFECT OF ASSIGNEE’S ASSIGNMENT — CONSENT OF WIFE.</p> <p>In an action for tbe recovery of rent brought by the lessor against an assignee of the lease, who sets up the defense that he has re-assigned the lease to another, evidence is admissible on the part of defendant showing what he did with the lease and the premises therein described, as a preliminary to proof of the assignment.</p> <p>Where a foundation has been laid for the introduction of secondary evidence as to the contents of a written assignment of a lease, and testimony has been given by a witness in regard thereto, it is not error to permit him to show what lease the assignment purported to assign.</p> <p>In an action for rent under a lease which the complaint admits has been assigned to defendant, an interrogatory on cross examination of the defendant as to what his object was in getting the lease is immaterial.</p> <p>In such an action, after an attorney and witness for defendant has testified as to the preparation of the assignment of the lease from defendant to another person, it is error, but not prejudicial, for the court to sustain an objection to the plaintiff’s question as to whether the assignment was not a scheme on the witness’s part to get defendant rid of the lease.</p> <p>Secondary evidence of the contents of a written assignment of a lease is admissible when the defendant has shown that he delivered it and the premises to the assignee, who shortly afterward left the city, and that the defendant did not know the whereabouts of the assignee, but had addressed letters to places where he had reason to-think he might be found, asking him for the assignment.</p> <p>The statutes of this state do not require the recording of assignments of leases.</p> <p>The assignee of a lease may re-assign the -lease to any other person for the purpose of ridding himself of liability thereunder, without the giving of notice to the lessor.</p> <p>Testimony offered to show diligence in producing a written instrument, as foundation for the introduction of secondary evidence of its-contents, is directed to the court and not to the jury.</p> <p>A married man can make a valid assignment of a lease without, the consent of his wife..</p>

<p> Appeal from Superior Court, Whatcom County. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, King County. </p>

<p>LOGGERS’ LIENS — CONFUSION OF LOGS — FORECLOSURE — TAXATION OF COSTS.</p> <p>The owner of logs cannot defeat loggers’ liens thereon by intermingling the logs with others of the same brand.</p> <p>In taxing costs upon foreclosure of loggers’ liens, liabilities incurred by the claimants for having lien notices prepared should be considered as moneys paid.</p> <p>It is error to tax as costs fees paid a private citizen for preparing copies of the complaint and summons, and for the service thereof upon the defendants.</p> <p>Semble, a rule of the superior court allowing such costs to be taxed is invalid.</p>

<p>CHATTEL MORTGAGE — SUFFICIENCY OF DESCRIPTION — AFTER ACQUIRED PROPERTY — VALIDITY.</p> <p>A chattel mortgage upon lumber, which does not definitely locate the lumber described, nor purport to cover all the lumber at the localities specified, nor all that might be placed there, nor all that the mill produced of a certain kind, and allows the disposal of the mortgaged property, with no other condition than that other lumber of equal value should be substituted in its place, is void for indefiniteness as against creditors and lien claimants.</p>

<p>pleadings; — amendment — abuse oe discretion oe trial COURT.</p> <p>The action of the trial court in permitting the amendment of an answer to a complaint on a promissory note, on the day of trial, so as to change an admission of its execution to a denial thereof, without a showing of good grounds therefor, and its refusal to grant a new trial to plaintiff, who was misled by the original answer into the assumption that no proof of execution was necessary, is an abuse of discretion on the part of the court warranting a reversal.</p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, King County. </p> <p>The mortgage in controversy was upon an undivided one-half interest in certain growing crops of wheat, etc. The notice of foreclosure incorporated the mortgage by a reference to the volume and page of the record, where it was recorded, and stated that “ the property described in said mortgage and to be sold is as follows, to-wit: 208 sacks of wheat, in all about-bushels.”</p>

<p> Appeal from Superior Court, King County. </p>

<p>PARTNERSHIP — DEED OE RAND BY SURVIVING PARTNER — VARIDITY — CONSTRUCTION OE statutes.</p> <p>Where an agreed statement of facts upon which a cause is tried sets up that certain real estate was conveyed to defendants by the grantor as a surviving partner, the objection cannot be urged that the deed upon its face purports to convey only the individual interest of the grantor.</p> <p>The statute of 1862 for the settlement of partnership estates was in aid of the common law method of closing up such estates, instead of exclusive thereof; and where no steps were taken to procure administration of the affairs of the partnership under the statute, the surviving partner had full power to settle its affairs.</p> <p>Where, upon the death of a partner, while the law of 1862 for the settlement of partnership estates was in force, ho administration was had upon his estate, but the surviving partner settled the affairs of the firm, paying off its indebtedness, which amounted to more than the partnership assets, and, in order to reimburse himself, took possession of the partnership realty as his own, he acquired the same right thereto which he could have conveyed to another.</p>

<p> Appeal from Superior Court, Pacific County. </p>

<p>judgment by confession — what constitutes — sufficiency of statement — verification — receiver—rights of attaching creditors.</p> <p>Where a debtor employs his own attorney to bring suit against him in behalf of a certain creditor, and consents to an entry of judgment therein, so as to work a preference in favor of such creditor, the judgment is one by confession, and must be regulated by the requirements of Code Proc., § 419, providing that a statement for judgment by confession must be verified and must contain a concise statement of the facts out of which the indebtedness arose.</p> <p>In order to warrant a judgment by confession upon a promissory note, the confession must contain a statement of the facts constituting the consideration for a promissory note.</p> <p>The fact that the indebtedness upon which judgment is confessed may be bona fide, will not excuse strict compliance with the statutory provisions governing such proceeding.</p> <p>Error in the appointment of a receiver at the instance of attaching creditors cannot beurged on appeal by a party who is not a judgment creditor.</p> <p>The act of a debtor in preferring one creditor over another does not amount in this state to a general assignment, and in a suit by certain creditors to set aside such judgment, it is erroneous for the court to order a receiver appointed in the cause to hold the property for the benefit of all the creditors of such debtor, as only the creditors participating in the action are entitled to its fruits.</p>

<p> Appeal from Superior Court, King County. </p>

<p>sale — PAYMENT BY NOTE — BAILORS TO DELIVER GOODS.</p> <p>Whether or not the execution and delivery of a negotiable promissory note is effective as a payment of the obligation for which it is given, depends upon the intention of the parties at the time.</p> <p>Where a promissory note has been given with the understanding that it was “in payment for goods to be delivered,” otherwise the note was to be invalid, and the note has not been negotiated nor paid, but remains in the hands of the payee, who has failed to deliver all the goods contracted for, no action can be maintained by the maker against the payee to recover the difference between the amount of the note and the value of the goods actually delivered.</p>

<p>EJECTMENT — TITEE OE PEAINTIEE — TITEE BY QUITCEAIM DEED— DEED TO DECEDENT’S ESTATE — ADVERSE POSSESSION — EVIDENCE — RIGHT OE DEFENDANT TO RECOVER TAXES PAID.</p> <p>Proof by plaintiff in an action of ejectment showing a perfect claim of title from the government to her husband, that he was dead, that plaintiff was his wife, that her husband had no other heirs living, and that there were no unpaid debts owing by his estate, is sufficient to establish a title in herself.</p> <p>If the grantor has title to land, a quitclaim deed is as effectual as a warranty deed in conveying the title.</p> <p>A tax deed executed to a decedent’s estate is void for want of a grantee.</p> <p>Adverse possession cannot be established by proof of a general understanding in the community that the property was reputed to belong to the claimant or his grantors, in the absence of testimony showing that the claimant had ever exercised any acts of ownership over it.</p> <p>One in possession of land unde'r color of title, who has resided thereon in good faith, is entitled on ejectment therefrom to recover taxes and street improvement assessments paid by him, when the owner has stood by and allowed the property to be so benefited without asserting title as against the occupant, and, under Code Proc., §• 534, may set off the value of improvements against the rental value*</p>

<p> Appeal from Superior Court, Skagit County. </p>

<p>appealable order — judgment oe dismissal — construction oe contract — provision eor arbitration — pleading — demurrer.</p> <p>A judgment dismissing an action, when plaintiff elects to stand upon his complaint after the sustaining of a general demurrer thereto, is not a judgment of dismissal for want of prosecution, and consequently the judgment is an appealable order.</p> <p>Whenever the terms of a contract leave it doubtful whether the settlement of a disputed question is intended to he left to the final decision of arbitrators, the construction is in favor of the right to resort to the courts for redress.</p> <p>In an action upon a contract which recognizes the right of the parties to make assignments, a complaint setting up the contract is not demurrable for the reason that the action is by and against different parties than those named in the contract, when the complaint shows their interest through assignment.</p>

<p>MECHANICS’ LIENS — IMPROVEMENTS FOR LESSEE — LIABILITY OF' FEE — MERGER OF LEASEHOLD.</p> <p>A lien for materials furnished for a building cannot be maintained against the owner of the fee, when the materials were furnished to-one falsely representing himself as a lessee of the premises, and credit was given to the alleged leasehold interest, no reliance being-placed by the lien claimant upon the fee simple title, or upon the-alleged lessee as agent of the owner.</p> <p>The fact that the owner of the fee, in such a case, stated to the party furnishing materials, after nearly all had been furnished, that, he would see that the alleged lessee paid therefor, will not render the owner’s interest in the property subject to a lien.</p> <p>The purchase by the owner of premises of improvements made by a lessee after the forfeiture of the lease and the taking possession of the premises by the owner, is not such a merger of the leasehold interest into the fee simple title as to make the lien against the leasehold a valid one against the fee.</p>

<p> Appeal from Superior Court, King County. </p>

<p>WIELS — DEVISE TO WIFE — DEATH OB WIFE BEFORE HUSBAND— EAPSED DEVISE — ADOPTION OF HEIRS — CONTEST OB WILE— PEEADINGS.</p> <p>A wife is not a “relative” of her husband within the term as used in § 1467, Gen. Stat., providing that ‘ ‘ when any estate shall be devised to any child, grand child, or other relative of the testator, and such, devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate as such devisee would have done in case he had survived the testator.”</p> <p>Code Troc., §207, in regard torequiringpleadingstobemademore specific upon motion, is applicable to petitions necessary in probate practice.</p> <p>The adoption of an heir is a matter purely statutory which can be accomplished only by strict compliance with the statute, and can never be sustained by mere presumptions of compliance.</p> <p>Where a wife, named as beneficiary in her husband’s will, dies before the testator, her children by a former marriage, when they have not been legally adopted by the testator, cannot contest the legality of a will revoking the one in favor of their mother.</p> <p>In an action to contest a will by persons claiming to be children of the testator, to whose complaint a motion is interposed requiring it to be made more specific in stating whether they are natural or adopted children, and, if adopted, how, when and where it was done, an allegation setting up that the contestants believed they had been legally adopted at some time and place not remembered or discovered, but evidence of which they expected to produce at the trial, does not show such interest in the will as entitles them to contest under the provisions of § 872, Code Proc.</p>

<p>MECHANICS’ EIEN UPON PARTNERSHIP LAND — FORECLOSURE— PARTIES.</p> <p>In an action for the foreclosure of a mechanics’ lien upon partnership real estate, the wives of the partners are not necessary parties, such, property being in equity a fund for tbe payment of tbe indebtedness of tbe partnership, unaffected by any contingent rights the wives may have therein after the settlement of the partnership affairs.</p>

<p>HOMICIDE--INFORMATION-VARIANCE--EVIDENCE--REQUIRING prosecution to produce witness — discretion of court— PRESUMPTION FROM KIDDING.</p> <p>In a prosecution upon an information charging certain defendants v> ith having killed the deceased by the use of a knife held by them, there is not a material variance when the proof shows that the knife was held and the blow struck by another person than is charged in the information, it further appearing that defendants aided and abetted such person, and that the blow was in pursuance of a conspiracy on their part to terrorize the community.</p> <p>In a prosecution for murder, wherein it is sought to show that the crime was the result of a concert of action among four persons to terrorize the community, the acts and statements of the defendant on trial and those of the others in his presence, prior to the commencement of the assault, are admissible in evidence for the purpose of placing the jury in possession of the circumstances leading up to the-assault.</p> <p>A motion requiring the. prosecution in a criminal case to call certain specified persons, who are alleged to have equal or superior knowledge of the facts with the witnesses already called by the prosecution, is a matter addressed to the discretion of the trial court, and its jailing thereon will not be disturbed unless a clear abuse of discretion is shown.</p> <p>The prosecution is not required to produce for the consideration of the jury all the evidence within its knowledge which would have a tendency to throw light upon the matter in issue, irrespective of its tendency to convict or acquit the defendant, but may confine its efforts to bringing out the facts favorable to its side.</p> <p>Where a homicide has been proven, the presumption is that it was murder in the second degree, and such presumption must be given force unless there is something in the case to rebut it.</p>

<p>WILLS — PROBATE OF LOST WILL — PLEADING — EVIDENCE.</p> <p>An allegation in a petition to establish and prove a lost will stating that “said deceased, at the time of his death, left a will which your petitioner alleges to be the last will and testament of said deceased,” is equivalent to alleging that the will was in existence at the time of the death of the testator, as required by Code Proc., § 879, in such cases.</p> <p>In a proceeding to establish a lost will, its execution is sufficiently proved in the absence of any contradictory testimony, when one of the attesting witnesses testifies that he saw the testator and the other attesting witness, who had since died, sign an instrument which the former declared to be his will.</p> <p>The presumption of revocation of a will arising from its loss or disappearance prior to the testator’s death, is overcome, when there is no direct proof of revocation, by testimony showing that he had left it with a certain custodian and never thereafter had had it in his own possession; and that, a short time prior to his death in California, he had stated that he had a will, that it was recorded up north (in Washington), and that he left his property up north to his nephew.</p> <p>Under Code Proc., § 879, the provisions of a lost will must be proved by not less than two credible witnesses, and the declarations of the testator are inadmissible for that purpose.</p>

<p> Appeal from Superior Court, Chehalis County. </p>

<p>tide lands — competency of purchaser — appeal to superior COURT — DISQUALIFICATION OF CONTESTANT — EIGHTS UNDER judicial sale.</p> <p>Under Gen. Stat., § 2170, giving the superior court jurisdiction of appeals from the decision of the state board of equalization and appeal in tide land contests, and under Code Proc., § 49, providing that when jurisdiction is conferred on a court, any suitable process or mode of proceeding conformable to the spirit of the code may be adopted, if the course of proceeding be not specifically pointed out by statute, the superior court can take cognizance of such appeals, although the law may fail to prescribe a method of procedure in such cases, and for this purpose, the most suitable procedure would seem to be in the nature of certiorari.</p> <p>The action of the secretary of the state board of equalization and appeal in transmitting the record of a contest, attested by himself as secretary, to the superior court, although irregular and unwarranted by statute, will not be treated as ground of reversal of the decision of the superior court, when there is no showing that the record is incorrect, in view of the fact that the same course had been followed in other cases, and not to uphold such action would result in overturning many tide land titles.</p> <p>The holder of a sheriff’s certificate of sale of land under execution is not such an owner of the land as to be entitled to any rights under Gen. Stat., § 2172, giving to owners of the lands abutting on tide lands the preference right to purchase.</p> <p>The holder of a sheriff’s certificate of sale of lands abutting on tide lands is not entitled to purchase or contest an application for the purchase of such tide lands, when he does not acquire the legal title to the upland under the execution sale until after the time permitted for the filing of contests; and the fact that he holds the legal title at the time of the hearing of the contest does not strengthen his position.</p> <p>The fact that an applicant for the purchase of tide lands is not qualified to take and hold the lands, cannot be urged by one who is incompetent as a contestant.</p>

<p>ACTION AGAINST CORPORATION — REFUSAL TO TRANSFER STOCK— RES JUDICATA.</p> <p>An action for damages for. the value of stock in a corporation based on a refusal to transfer, cannot be maintained by a stockholder or his assignee against another corporation, which has succeeded to all the property, rights and interests of the corporation which issued the stock.</p> <p>The fact that judgment has been rendered against a stockholder in a certain corporation foreclosing a pledge of his stock, to which action another corporation of the same name, which had succeeded to the property of the corporation which issued the stock in controversy, was made a party defendant, but answered disclaiming any interest in the stock, will not estop the second corporation from setting up, in an action for damages against it for the value of the stock based on a refusal to transfer, that it had not issued the same, there being no finding in the prior action that the stock represented shares of such second corporation and the judgment therein being against the stockholder of the original corporation only.</p>

<p>VENDOR AND PURCHASER — DEATH OE VENDOR — POWER OE EXECUTOR TO MAKE DEED — ACTION TO RESCIND — VENDEE’S LIEN— TENDER — EVIDENCE.</p> <p>On the rescission by a purchaser of a contract for the sale of land on the ground that the interest of heirs therein cannot be reached and disposed of, the purchaser is not entitled to a vendee’s lien against the land to secure the refunding of money paid on the contract.</p> <p>Under the statutes of this state the legal title to land of a decedent vests in his executor or administrator for the purpose of passing title to purchasers under a contract for its sale made by the decedent, and the rights of devisees or heirs in the land is confined to an interest in the purchase money due under the contract.</p> <p>A finding by the court that purchasers of certain land had not entered into possession is unwarranted, when there is little testimony upon the subject and the contract of sale itself provides' that the-vendor shall have the right to re-enter and take possession in case of forfeiture, the plain intent appearing therefrom that the possession should be given by the execution and delivery of the contract of sale.</p> <p>A tender of the balance of the purchase price due upon a contract for the sale of land made by a purchaser to his vendor’s executor, does not constitute a valid tender when the purchaser is doubtful of the ability of the executor to convey a valid title, and has no intention of paying over the money until he can get an opinion from his-attorney upon the validity of the conveyance.</p> <p>A vendor is not bound to execute a deed to a purchaser under a contract for the sale of land upon the tender of the full purchase price, when the purchaser has failed to pay taxes upon the land in accordance with one of the conditions of the contract.</p> <p>The fact that a tender of the purchase price of land is made to an executor before he has qualified as a representative of the vendor’s-estate, does not impose the duty upon the executor of executing a deed after his qualification, when the tender is not kept good by the purchaser, especially where the time of the execution of the deed is not made of the essence of the contract.</p> <p>Where a complaint for the rescission of a contract for the sale of land alleges that the complainants are willing to complete the contract, if the court finds a good, marketable title could be made to them, an answer by the defendants offering to make a deed either by the executor or by a commissioner, as the court shall decree, constitutes a sufficient tender of a deed, under the issue as made by the complaint.</p>

<p> Appeal from Superior Court, Snohomish County. </p>

<p> Appeal from Superior Court, Snohomish County. </p>

<p>PLEADING — JOINDER OF CAUSES OF ACTION — ERRONEOUS ADMISSION OF EVIDENCE — HOW CURED — MASTER AND SERVANT-INJURY TO EMPLOYE — MALPRACTICE OF PHYSICIAN.</p> <p>Where a complaint sets forth two causes of action without separately stating them, it is not error to refuse to strike out portions of the complaint, when the two causes could be properly joined, but the proper remedy is a motion to require plaintiff to separately state his several causes of action.</p> <p>Where one of two causes of action, which had been joined in one complaint, has been held insufficient on appeal, it is error, upon a retrial of the cause upon the same complaint, after reversal, to permit the introduction of evidence supporting the cause of action which has been ruled upon adversely by the appellate court.</p> <p>Under such circumstances, a charge to the jury to disregard entirely such cause of action not properly in the case, is not sufficient to withdraw the objectionable evidence from their consideration, when the jury is not instructed to disregard all, or any particular portion, of the evidence introduced to support that part of the case.</p> <p>In an action for damages on account of negligent and unskillful surgical treatment, there is sufficient evidence to show negligence of the surgeon, when it appears that the patient’s hip was dislocated and his femur hone fractured about eight inches below the hip ; that the head of the femur had been torn from its socket and pushed upwards and backwards, producing a lump on the hip which was easily discernible; that the surgeon’s attention was called to the painful condition of the hip, but that he never examined it, claiming that the pain was caused by the broken bone ; and that the surgical treatment was directed solely to the fracture of the femur, which, under the appliances used, properly healed.</p> <p>Where a hospital is maintained and a physician employed by a corporation for the purpose of caring for sick and injured employes, the expenses being provided for out of certain moneys retained from the monthly wages of the employes, and the corporation makes no profit out of the undertaking, but conducts it as a charitable institution, it is not liable for malpractice or negligence on the part of the physician, but is responsible only for want of ordinary care in selecting him.</p>

<p> Appeal from Superior Court, Thurston County. </p>

<p> Appeal from Superior Court, King County. </p>

<p>insolvent corporation — preferences — default judgments.</p> <p>The stock and property of an insolvent corporation, or one which is practically in that condition, is a trust fund for the payment of its debts, and such a corporation has no right to prefer a portion of its creditors to the exclusion of others.</p> <p>The fact that the assets of a corporation are made to exceed its liabilities by computing its book accounts and bills receivable at their face value, when their actual value is really less, is not sufficient to negative a charge that the corporation is insolvent.</p> <p>Judgment secured against an insolvent corporation by certain creditors, as the result of information given them by its officers of the insolvency of the concern, the pendency of the suits being kept quiet until the entry of judgment, one of the creditors holding back the filing of its complaint for that purpose by agreement with the other creditor until his service had ripened, shows such collusion between the corporation and these creditors as to constitute their judgments as preferences over other creditors.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p> Appeal from Superior Court, Chehalis County. </p>