Volume 100 — Washington Reports

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered September 2, 1916, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered January 6, 1917, upon a trial and conviction of grand larceny.</p>

, entered February 17, 1917, upon findings in favor of the defendant, dismissing an action for damages sustained through an automobile collision, tried to the court.

, entered March 27, 1917, in favor of the garnishee defendants, after a trial before the court upon an agreed statement of facts.

<p>Appeal from a judgment of the superior court for Kittitas county, Davidson, J., entered June 16, 1917, upon sustaining demurrers to the complaint, dismissing an action for an injunction, tried to the court.</p>

<p>Insurance—Fraternal Insurance — By-Laws — Waiver. A fraternal insurance by-law automatically suspending a member for nonpayment of dues is waived by long continued custom of the society allowing a member to retain his good standing notwithstanding delinquency, except upon notice, which custom was relied upon by the assured.</p> <p>Same — Fraternal Insurance — Payment op Dues — Powers op Agent—Waiver. The secretary of a local lodge charged with the collection and remittance of dues is such a general agent of the national body that his mistake in waiving collections is regarded as the act of that body.</p> <p>Same — Fraternal Insurance — Suspension — Notice—Question for Jury. Whether a member of a fraternal society received notice V>f his suspension for nonpayment of dues is a question for the jury, 'where there was evidence that his reported suspension was unintentional and contrary to the custom of the lodge, and that he had no notice of suspension as required by the by-law, which it was the eustom\of members to rely upon.</p> <p>Tsjal—Instructions—Requests. It is not error to refuse requested instructions which were not within the issues or which ignored\a matter within the issues.</p> <p>Appeal—Harmless Error—Instructions. Error cannot be predicated upon sending to the jury room a requested instruction modified but leaving the stricken portion legible, where it was merely modified to conform to instructions given.</p>

<p>Master and Servant — Employment — Contracts. Whether an employer orally agreed to protect a strike breaker from violence is a question for the jury, where two witnesses testified to that effect, and it was admitted that there was danger of such violence.</p> <p>Same. An employer’s contract with a strike breaker to furnish ample or “absolute” protection from violence and a safe place from any assault, is not of itself impossible of performance, and therefore is not invalid on that account.</p> <p>Same. Such contract is not illegal as against public policy, where it does not expressly require the employment of a private- armed force.</p> <p>Same. Such contract is not void as an insurance contract made without requisite formality.</p> <p>Same—Employment—Evidence. The fact that a dock owner farmed out its servants to other employers does not show that they were not in its employ, where it paid the men and received its remuneration from such other employers.</p> <p>Release—Injury to Servant—Evidence. A receipt in full payment for wages for the time stated cannot be set up as a release and discharge from liability upon a contract to protect the employee from violence by strikers, there being nothing on its face and no extrinsic evidence to show that it was so intended.</p> <p>Appeal—Harmless Error—Invited Error. Error cannot be predicated upon a portion of an instruction made up from several requests which was included in one of the requests.</p> <p>Same. Error cannot be predicated upon the giving of an instruction that was in favor of the appellant.</p> <p>Damages—Pain and Suffering—Instructions. Where, from the detailed allegations and proof of an assault by strikers, anguish of mind and pain of body must follow, though not expressly alleged, it is proper to instruct that the plaintiff could recover therefor.</p> <p>Appeal—Review—Theory of Case. Insufficiency of the complaint to allege anguish of mind and pain of body cannot be assigned as error, where the case was tried out on the theory that the complaint sufficiently alleged damages therefrom.</p>

<p>Appeal from a judgment of tlie superior court for Spokane county, Kennan, J., entered January 3, 1917, upon tke verdict of a jury rendered in favor of the defendant, in an action on a promissory note.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered January 5, 1917, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to recover a tax paid.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered April 16, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a defective sidewalk.</p>

<p>Sales—Modification — Consideration — Executed Contract. In the absence of an independent consideration therefor, the contract for a sale of lath to be inspected by a bureau, whose certificate was final, cannot be modified by an agreement for a reinspection after it had become executed on the one side by the inspection and delivery called for in the contract.</p> <p>Same — Construction of Contract — Inspection. A contract for the sale of lath to be subject to inspection at the seller’s expense, followed by provision for delivery, calls for but one inspection, reasonably inferred to be before delivery.</p> <p>Evidence—Declarations—Admissions of Agent. Where a seller of lath requested another inspection, with a view of confirming the previous inspection, which the contract states to be final, the last inspector is constituted the agent of the seller, and his report is admissible against the seller as a declaration against interest.</p> <p>Evidence—Expert Evidence—Sales—Inspection—Impeachment— Fraud. Although a contract for the sale of lath provided that it should be inspected by a bureau and up to a certain standard and that the certificate of inspection should be final and conclusive, expert opinion that it was in fact not up to standard is admissible upon the issue as to whether the first inspector was so grossly mistaken as to be chargeable with fraud or bad faith.</p> <p>Same. In such case, the mistake which would justify an impeachment of the inspection must be more than a mere error of judgment and must amount to fraud.</p> <p>Same. In such case, the expert may not state whether the lath were fairly and properly inspected with reasonable care, since it would be the conclusion as to the motive of the inspector and not an opinion on the question of fact in issue.</p> <p>Discovery—Striking Interrogatories. Where error is committed in failing to grant a motion to strike interrogatories made prior to trial, the court may correct the error by excluding them at the trial.</p> <p>Evidence—-Declarations—Admissions by Agent. It is inadmissible to show declarations against interest by an agent or person in the ofiice of the principal, where such person was not identified and the scope of his agency or authority did not appear.</p>

Appeal by plaintiff from a judgment of the superior court for Chelan county, Gfrimshaw, J., entered March 29, 1917, upon findings in favor of the plaintiff as against certain defendants, in an action to foreclose a mortgage, tried to the court.

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered January 27, 1917, upon findings in favor of the defendants, in an action to quiet title, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered March 20, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover from a carrier for the loss of goods.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered December 7, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered February 28,1917, upon findings in favor of the defendant, in an action to quiet title, tried to the court.</p>

, entered July 3, 1916, in favor of the defendant, after a trial before the court upon an agreed statement of facts, in an action to recover sums paid for certificates of delinquency, and to recover taxes paid.

, entered November 22,1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by an automobile.

<p>Action—Joinder—Causes Arising Out of Same Transaction. A cause of action for damages from failure of a lessor to erect buildings stipulated for in a lease, and a cause for money expended by a tenant in caring for the lessor’s share of the crops, may be joined under Rem. Code, § 296, as arising out of the same transaction.</p> <p>Same—-Joinder—Actions on Contract. Under Rem. Code, § 296, causes of action on contract may be joined, they arising out of different transactions.</p> <p>Appeal—Review—Harmless Error. Where causes of action improperly joined were expressly withdrawn from the jury, any ruling as to improper joinder is immaterial.</p> <p>Action — Joinder-—Contract or Tort. An action for damages through failure of a lessor to erect buildings stipulated for in the contract of lease is an action on contract and not in tort, within Rem. Code, § 296, relating to the joinder of causes of action.</p> <p>Evidence—Damages. It is admissible to testify as to damages by stating specific losses in money value, where the complaint and bill of particulars specifically set -out items of loss, and the witness testified to facts on which the money valué was based.</p> <p>Landlord and Tenant—Damages—Evidence—Materiality. Damages to a tenant by reason of having no buildings, as agreed upon, to store seed wheat, cannot be defeated by showing that he had no seed wheat at the time in question.</p> <p>Witnesses—Impeachment—Materiality. In an action for the landlord’s failure to perform the contract of lease, evidence of any acts interfering with tenant’s full enjoyment of the lease is proper matter for impeachment; and it is not a collateral matter that defendant told a miller not to sell plaintiff any feed or grain.</p> <p>Appeal — Review — Instructions. In the absence of requests therefor, error cannot be assigned upon the failure to instruct that a counterclaim was still before the jury, after withdrawal of a cause of action to which it was addressed as a defense.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered January 9,1917, upon findings in favor of certain defendants, in an action of interpleader, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered November 18, 1916, upon findings in favor of the defendants, in an action to quiet title, tried to the court.</p>

, entered March 14, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract, after a trial on the merits.

<p>Municipal Corporations—Publio Improvements—Contracts—Extra Work—Evidence—-Sueeiciency. A contractor for a sea wall at a specified price per cubic yard cannot recover extra compensation for excavating 3,228 cubic feet of excess yardage, because the plans and profile showed an existing ground line indicating but 580 cubic yards, where the plans and profiles did not show the physical condition at the time and the contractor did not rely thereon, but examined the ground and undertook the work with reference to the existing physical conditions, which were not so concealed that the profile would operate as a representation to be relied upon.</p> <p>Trial—Findinqs. Where there was evidence to sustain a finding, it will not be assumed from a remark of the judge as to doubt on the point that he based his conclusions upon his individual opinions.</p> <p>Municipal Corporations — Public Improvements — Contracts ■— Engineer’s Decisions. Where no change or radical departure was made in the work contracted for, the city engineer’s decision that the contractor was not entitled to extra compensation on account, of more excavation than called for, is final and conclusive, the contract providing that his decision as to the amount of work done should be final.</p>

Appeals from a judgment of the superior court for King county, Mackintosh, J., entered June 26, 1917, upon findings in favor of the plaintiff, in an action to foreclose mechanics’ liens, after a trial to the court.

<p>Corporations—Transfer of Shares. Under Rem. Code, § 3693, making transfer of stock ineffectual until entered upon the books of the company, a corporation domiciled in this state cannot object to entering a transfer from foreign executors and trustees under a will admitted to probate in a foreign country, although .there was no administration or proof of no debts in this state, in the absence of any claim to the shares of stock timely made by an administrator or trustee.</p>

, entered August 22,1916, upon findings in favor of the plaintiffs, in an action to foreclose a mortgage, tried to the court.

<p>Pleading—Election Between Causes. Under a complaint alleging two causes of action, one for breach of warranty of a deed, and the other for false representation as to the location of a building upon the lot conveyed, it is not error, after issue joined, to refuse to require an election; since but one recovery was sought for separate acts culminating in one result, notwithstanding an attempt to divide it into tw.o causes of action.</p> <p>Fraud—Misrepresentations—Intent and Knowledge. It is actionable misrepresentation to state that a building was upon a lot conveyed, although not wilfully false or made with intent to deceive, where the building extending into the street was the major part of the consideration and had to be removed, and but for the belief that it was on the lot, the purchase would not have been made.</p> <p>Municipal Corporations-—Streets—Encroachment — Evidence— Sueeiciency. Findings that a building encroached upon a street are sustained where it appears by the preponderance of the evidence that several complete surveys from monuments found on the ground so indicated.</p> <p>Same—Streets—Encroachments — Estoppel of City — Forbearance. The act of a city in allowing sidewalks to be constructed in front of a building pursuant to ordinance calling for a sidewalk flush with the street line does not estop the city from afterwards asserting that the building protruded into the street; as mere forbearance does not work an estoppel.</p> <p>New Trial—Newly Discovered Evidence—Records. The discovery of a public record material to a defense or cause of action is not within the rule of newly discovered evidence which warrants the granting of a new trial.</p> <p>Highways—Width—Preexisting Street. Laying out a county road sixty feet wide, along the center of a platted street eighty feet wide in public use as such at the time, does not affect the width of the existing way.</p>

<p>Judgment—Vacation—Valid Defense. A judgment cannot be vacated on the ground of excusable neglect where the answer does not state a defense to the action.</p> <p>Trover and Conversion—Defenses — Judgment for Destruction of Property. In an action for the' conversion of a donkey engine, an answer that the engine was destroyed by fire by the neglect of the defendant and that plaintiff recovered judgment from the' defendant for its value, states a good defense, since whatever was left of the engine belonged to the defendant.</p> <p>Taxation—Tax Title—Person Not Owner. After obtaining judgment for the full value of an engine converted by the defendant and destroyed by fire, the plaintiff has no further interest in the junk or whatever was left, and cannot, by payment of a tax wrongfully assessed against plaintiff and tax sale, acquire any title to the junk.</p>

<p>Chattel Mortgages—Foreclosure-—Insecure Debt—Reasonable Grounds of Belief. .A chattel mortgagee of a threshing outfit had reasonable ground, to believe the debt insecure and that he was in danger of losing the security, under Rem. Code, § 1112, where the mortgagor had no property subject to execution, had judgments against him and all his property covered by mortgage, had assigned part of the gross earnings, and in order to defeat creditors had proposed operating in the name of another, and that he was careless and incompetent and had damaged the separator.</p>

, entered November 18, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by a jitney bus.

, entered June 13,191.6, upon the verdict of a jury rendered in favor of the defendant, in an action on promissory notes.

<p>Waters and Water Courses—Diversion—Injunction—Estoppel —Remedy at Law. Where a public service corporation supplying a city with water completed its works and diverted the water before trial of an action to enjoin the same, in which no temporary injunction was issued, the action must fail and the riparian owners, although they brought suit about the time work started, will be relegated to their remedy by action for damages.</p>

<p>Appeal—-Preservation op Grounds—Exceptions—Findings. One general exception to the various findings of an action at law tried to the court, is insufficient to raise any question on appeal other than that of the sufficiency of the findings to support the judgment.</p> <p>Municipal Corporations—Streets—Use—Liability-—Estoppel. A permit, vague in its scope, permitting improvement and use of part of a street as a parking strip, and covenanting to save the city harmless from injury resulting from its exercise, does not estop the city, after acquiescence in such use for years, to say that the whole use was not under the permit, but merely from asserting that a wire stretched across it was a nuisance or unlawful obstruction.</p> <p>Same. Where a passerby slipped and fell upon a steep and icy sidewalk, becoming entangled in a wire stretched near the sidewalk to guard the parking strip, a covenant to- indemnify the city for damages resulting from use of the strip did not render the owners liable over to the city, regardless of their own negligence or wrongful act.</p> <p>Same—Streets — Liability oe City and Abutter — Joint Tort Feasors—Contribution—Concurring Causes. Where, in an action for damages for injuries sustained through a fall upon a slippery sidewalk, brought against the abutting owner and the city, the court found that the city was negligent in allowing snow and ice to accumulate, in failing to enforce the city ordinances against abutters in such case, in maintaining a steep walk without cleats, and in failing to properly light the street, a further finding that the maintenance by the abutter of a wire near the sidewalk, upon which plaintiff fell, was the proximate cause of the accident, cannot be construed as a finding that it was the sole proximate cause; but, on the contrary, all the negligent acts must be construed as concurring causes, making the city and abutter in vari delicto and joint tort feasors, as between whom no action for - contribution would lie.</p> <p>Same—Abutters-—Liability Over—Findings. Where, in an action by a passerby who slipped on a steep slippery sidewalk and fell upon a wire that the abutter had placed near the walk, a finding that the wire was the sole proximate cause of the accident and that the city was liable therefor, would not be conclusive, in an action by the city to recover over from the abutter, that the abutter had placed the wire on the sidewalk or was chargeable with notice thereof.</p> <p>Same—Streets-—Use—Injuries on Sidewalk—Liability of Abutting Owner. A statute making it the duty of abutting owners to keep the sidewalks clear of snow and ice and declaring such condition a nuisance, does not render them liable in damages for injuries caused thereby; hence the city, held liable for allowing the condition to exist, cannot recover over from the abutter on account of a judgment for personal injuries sustained by a passerby who slipped and fell upon the walk.</p>

<p>Contracts—Construction—Personal Liability. Under a contract providing that the plaintiff, as selling agent, should be “reimbursed” out of the proceeds of the sales of lots for improvement charges, and if not so paid, that the amount expended should be chargeable against the defendants’ lots, the plaintiff is not entitled to a personal judgment in the amount of the expenses, when the proceeds of the sales failed to pay the same.</p> <p>Liens—Redemption—Contract Right. In such a case, the clause in the contract giving the defendants the option to take unsold lots upon paying the plaintiff the improvement charges,- extended to the defendants the mere privilege to be exercised under the contract, and upon foreclosing the equitable lien for the charges, it is error to decree to the defendants the right of redemption, there being no statute authorizing the same.</p> <p>Costs—Allowance—Discretion. It is discretionary to deny costs to either party where the decree fixes the rights of the parties according to equity and not according to the contentions of either party.</p>

, entered February 7,1917, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for malicious prosecution.

<p>Appeal from an order of the superior court for Spokane county, Kennan, J., entered January 3, 1917, granting a new trial, after a judgment entered upon findings in favor of the defendants, in an action upon an official bond.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered March 5, 1917, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.</p>

<p>Executors and Administrators—Claims—Capacity of Claimant —Nonintervention Executrix. A claim against an estate, made by an executrix as sole legatee under a nonintervention will, is sufficient in form, although, made by the claimant individually and not as executrix, where it was made before the will was admitted to probate; and the same entitles the claimant to sue thereon as executrix.</p>

, entered January 2, 1917, upon findings in favor of the plaintiff, in an action for personal injuries sustained through a defective highway, tried to the court.

<p>Fraudulent Conveyances—Pursuant to Antenuptial Contract —Intent to Defraud—Presumption. An antenuptial agreement to convey all the husband’s property decreed to him in a divorce from his former wife, is fraudulent as to the latter, where the second wife knew of his continuing obligation to pay monthly alimony, and that the transfer would prevent the collection thereof; the intent to defraud being presumed where the parties knew such would be the effect of the transfer.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered February 19, 1917, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from an order of the superior court for Lewis county, Reynolds, J., entered August 28, 1917, directing the issuance of a writ of mandamus to compel a police judge to certify a transcript to the superior court.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheets, J., entered January 9, 1917, upon findings in favor of certain of the plaintiffs, in consolidated actions to recover upon a contractor’s bonds, and for equitable relief, tried to the court.</p>

<p>Ah?eal— Preservation oe Grounds — Exceptions to Findings. Failure to except to the findings precludes any review of the evidence on appeal, leaving only the question of the sufficiency of the findings to support the judgment.</p> <p>Saíes—Action for Breach—Judgment. A judgment for $200 damages for the seller’s breach of contract of sale of five automobiles is supported by findings that the parties entered into five different contracts upon each of which plaintiff paid fifty dollars, the balance to be paid upon delivery, that defendants fully performed their part of the contract, but that plaintiff failed to perform his part except as to one of the contracts.</p>

<p>Vendor and Purchaser—Contracts—Construction. A contract for the sale of land to one who agreed to irrigate and subdivide it, and resell tracts at not less than $150 per acre, the purchase money to be paid in installments from the receipts from resales, upon monthly accounts, is not a contract of agency, but is one of purchase and sale, which may be forfeited for the vendee’s default; and in the absence of .collusion, the vendor is not responsible for such default to purchasers from the vendee, although it received its share of the money paid' in by them upon their contracts with the vendee.</p>

, entered January 29,1917, granting a new trial, after the verdict of a jury rendered in favor of the plaintiffs, in an action for money received.

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered January 27, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered October 24, 1916, sustaining an order of the public service commission regulating a service schedule on appellant’s railway lines, after a hearing before the court.

<p>Costs—Prevailing Party. In an action upon a promissory note, in which there was an affirmative defense, judgment for the plaintiff for less than the amount of the note makes him the prevailing party and entitled to costs of the action.</p> <p>Costs—Cost Bill—Amendment. Upon objection to a cost bill for want of verification, an amended bill in due form filed within the time limited by Rem. Code, § 482, for the filing of a cost bill, will be treated as an original cost bill.</p> <p>Costs—Lien on Property'—Chattel Mortgages. In an action upon a promissory note and to foreclose a chattel mortgage securing the same, plaintiff’s costs and disbursements were properly made a lien upon the mortgaged property.</p>

<p>Appeal—Review—New Trial—Discretion. Tbe discretion of tbe trial court in granting a new trial for insufficiency of tbe evidence will not be disturbed on appeal except for abuse of discretion.</p>

<p>Appeal from a judgment of the superior court for Whatcom county, Hardin, J., entered November 30, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for alienation of affections.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered January 4, 1917, upon findings in favor of the defendant, in an action for an accounting, tried to the court.</p>

<p>Vendor and Purchaser — Contracts — Default — Remedies of Vendor. Upon default in payment upon an ordinary contract for the sale of land wherein the vendor retains legal title as security for the payment of the purchase price, the vendor may affirm the contract and seek enforcement by either suing at law or foreclosing in equity, as in the case of a mortgage, in which case the judgment may make the amount due a lien upon the property.</p> <p>Election of Remedies — Amendment of Complaint. Where a vendor’s remedy hy forfeiture of a contract was unavailable because of the failure to tender a deed before suit brought, his complaint for a forfeiture cannot be set up as an effectual election of remedies to bar an amended complaint affirming the contract and seeking foreclosure and recovery of the purchase price; since a mistake in a remedy is not an election.</p> <p>Vendor and Purchaser — Modification of Contract — Validity. An oral modification of a contract for the sale of land, fully executed and performed, will be recognized as valid.</p>

<p>Appeal from a judgment of the superior court for King county,.French, J., entered March 23, 1917, upon granting a nonsuit, dismissing an action for damages.</p>

<p>Appeal from a judgment of the superior court for Whatcom county, Brawley, J., entered December 29, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal — Review — New Trial — Discretion. Where there was conflict, the granting of a new trial for insufficiency of the evidence will not be disturbed ,on appeal except for abuse of discretion. ■</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered May 19, 1917, upon sustaining a demurrer to the complaint, dismissing an action on a contractor’s bond.</p>

, entered April 4,1917, upon the verdict of a jury, rendered in favor of the plaintiff, in an action for wrongful death.

<p>Mastek and Servant—Injury to Third Person-—Scope of Employment—Evidence—Sufficiency. A school district is not liable for injuries inflicted by an employee engaged to deliver parcels on a motorcycle, where he was using the machine after working hours, without permission and contrary to orders, for his own convenience to go to his home; and undisputed evidence to that effect overcomes the presumption of liability from proof of ownership of the machine.</p>

<p>Municipal Corporations—Streets — Automobiles — Injuries to Pedestrian—Negligence—Last Clear Chance. In an action for the wrongful death of a boy playing in the street, run down by defendants’ automobile, it is proper to give instructions applying the “last clear chance” rule, where the liability depended on whether the defendant actually saw the boy and should have appreciated the danger in time to have avoided the accident, or whether the boy stepped in front of the car so that there was no time to avoid the accident.</p> <p>Same—Streets—Right to Use. In an action for the wrongful death of a pedestrian, run down by an automobile, it is proper to instruct that a pedestrian has the same right to use the street as the defendant had.</p> <p>Same — Streets—Use—Contributory Negligence—Instructions. In an action for the wrongful death of a pedestrian, run down by an automobile, contributory negligence is sufficiently defined by instructions that tell the jury, in substance, that, if there was failure on the part of the deceased to look for the approach of automobiles or failure to use ordinary care and thereby have avoided the accident, there could be no recovery.</p> <p>Same—Streets—Negligence-—-Question for Jury. In an action for the wrongful death of a pedestrian, run down by an automobile, a nonsuit is properly refused, where there was evidence that defendant was driving his automobile at an unreasonable rate of speed past a street car, upon boys playing in the street unconscious of his approach.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered January 3, 1917, dismissing an action to quiet title, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered March 1,1917, upon the verdict of a jury rendered in favor of the defendant, dismissing an action for personal injuries sustained through a fall upon a sidewalk.</p>

<p>Execution—Levy—Claims by Third Person—Title—'Evidence. Upon claim and delivery for property levied upon, a bill of sale from a third person makes only a prima facie case, and does not conclude the execution creditor from showing that the title was in fact in the execution debtor.</p> <p>Sales—Delivery—-Title. Where a trade of automobiles was consummated by plaintiff and S. and the car then delivered to S. continued in his possession until the price or allowance of the oíd car had been agreed upon, and was never thereafter in plaintiff’s possession, the title passed at the time of delivery, and the automobile was accordingly thereafter subject to execution against S.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered September 8, 1917, upon a trial and conviction of violating the state-wide prohibition law.</p>

<p>Appeal from a judgment of the superior court for • King county, Mackintosh, J., entered May 3,1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon the official bond of a sheriff.</p>

Application .filed in the supreme court January 15, 1918, for a writ of mandamus to compel the superior court for Lincoln county, Sessions, J., to make and enter a judgment and order requested by relators; and motion filed in the supreme court December 18,1917, to recall the remittitur, in an action of unlawful detainer.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered February 13, 1917, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by passengers on a street car struck by a freight train.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Smith, J., entered December 14, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in a collision with a street car.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered December 23,1916, upon the verdict of a jury rendered in favor of the defendant, in an action for damages.</p>

<p>Pleading—Amendment—Departure. Under a complaint alleging that plaintiff performed work and labor for defendant, under an unfulfilled contract of partnership, for which he was entitled to compensation, it is not a departure that a trial amendment set up work done at the special instance and request of the defendant, as the allegation as to an unfulfilled partnership was only matter of inducement or anticipatory of a defense.</p> <p>New Trial — Grounds — Misconduct. Misconduct warranting a new trial is not shown by the fact that two women jurors, referring to appellant’s attorney, confided to each other that they “just hated that lawyer with a mustache,” where no. prejudice was shown.</p>

<p>Municipal Corporations—Criminal Liability — Employees. A metropolitan park district cannot be guilty of violating Rem. Code, § 6580a, prohibiting the employment of females more than eight hours a day, where the act has no element of a violation of a public duty imposed upon it by law; especially in view of Id., § 6568a providing that any employer, superintendent or other agent of any such employer shall, upon conviction of any violation of the act, be punished, etc.</p> <p>Same—Park Districts—Powers. The operation of a public restaurant by a metropolitan park district is not among the powers conferred upon it by Rem. Code, § 5835 et seq., and must be considered as ultra vires.</p> <p>Same—Parks—“Governmental Functions.” The regulation and maintenance of public parks is not a proprietary act, but rests purely within the governmental functions of a municipal corporation.</p>

<p>Appeal from a judgment of the superior court for Clallam county, Ralston, J., entered March 10,1917, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a lineman through the falling of a telephone pole.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered February 24,1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for money received.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered May 14,1917, upon a trial and conviction of rape.</p>

<p>Bailment—Mandataby—Liability—Measube—Gboss Negligence. A mandatary under a gratuitous bailment intrusted with money to buy logs who honestly misconceived his instructions, is not held to a strict accountability, but is liable only for such damage as actually occurred and only for his own gross negligence.</p> <p>Same—Evidence—Sufficiency. In such a case, liability is not sustained where the evidence showed he profited nothing and the money was not converted, but was at once devoted to the purchase of logs and the payment of claims necessary to keep the company in operation, and any negligence in the matter must be attributed to the president of the shingle company who had complete control of its affairs.</p>

<p>Appeal from judgments of -the superior court for Grays Harbor county, French, J., entered March 16, 1917, in favor of the defendant, in consolidated actions to foreclose liens upon logs, tried to the court.</p>

Application filed in the supreme court November 21, 1917, for a writ of certiorari to review an order of the superior court for Spokane county, Blake, J., dismissing condemnation proceedings.

Application filed in the supreme court August 24, 1917, for a writ of certiorari to review an order of the superior court for Grays Harbor county, Reynolds, J., entered July 14, 1917, in condemnation proceedings, and for a stay of proceedings.

<p>Appeal from a judgment of the superior court for Grays Harbor county, Reynolds, J., entered July 17, 1917, upon the verdict of a jury awarding damages in a condemnation proceeding.</p>

<p>Indictment and Information—Duplicity—Grafting. Rem. Code, § 2333, denouncing three methods of committing the offense of “grafting” does not define three crimes, and an information charging the offense in the specific language of the first clause by causing a judge- to “refuse, neglect or defer the performance of any official duty” is not objectionable as covering also the third clause relating to influencing an officer “in respect to any act ... or other proceeding.”</p> <p>Criminal Law—Trial—Election—Alternative Charges—Grafting. In a prosecution charging grafting in agreeing to either influence a judge to dismiss a criminal action or to influence a delay in the proceedings, it is not error to refuse to require an election between the two, as the charge is not in the alternative, but is positive that he agreed to do either one of two things, both denounced by the statutes.</p> <p>Obstructing Justice—Evidence—Admissibility. Upon a charge of grafting, evidence of a conversation had the day after the money was paid is admissible as showing that the accused’s attitude was the same then as that testified to on the evening before when the money was paid.</p> <p>Same—Evidence — Sufficiency. A charge of grafting is sufficiently sustained where it appears that the accused induced the payment to him of $210 upon his representation that he could get a criminal prosecution dismissed through access which he had to the trial judge.</p> <p>Criminal Law-—Appeal—Harmless Error-—Favorable to Appellant. Upon a charge of grafting under the first clause of Rem. Code, § 2333, error in instructions which defined grafting by adding; an exception not applicable to the first clause would be error favorable to the accused and not ground for reversal.</p> <p>Obstructing Justice—Elements of Offense. Under Rem. Code, § 2333, denouncing grafting by tailing money under a promise to exert influence upon a public officer, the intent to corrupt the officer; is not the gravamen of the offense.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered December 10, 1917, dismissing an action for an injunction, after a trial before the court upon an agreed statement of facts.</p>

<p>Limitation of Actions—Taking Property for Public Use—Actions for Compensation. The right of action by an owner to recover land or its value, when taken by a municipality for a public use, without making compensation, is not governed by the three-year statute of limitations, Rem. Code, § 159, subd. 1, relating to trespass upon real property; since the city acts in its sovereign capacity and not as a wrongdoer.</p> <p>Same. Nor is such right of action one for the recovery of consequential damages td property not appropriated, covered by the limitation of Rem. Code, § 165, relating to actions not otherwise provided for; since the land is not damaged, but taken; and the owner may maintain an action in the nature of ejectment to obtain substituted relief until his title to the land is lost by adverse possession.</p>

<p>Limitation oe Actions—Damaging Property eor Public • Use— Action eor Compensation—Implied Contract. An action to recover compensation for damages resulting from the operation of an incinerator by a city, in the exercise of its power of eminent domain, is an action on an implied contract or liability, within Rem. Code, § 159, subd. 3, limiting the same to three years from the time when the right of action accrued.</p> <p>Same—Action eor Compensation—Accrual. The court cannot determine as a matter of judicial knowledge, that the mere construction of a city incinerator would damage plaintiff’s property, where the evidence conclusively shows that consequential damqge from its operation did not result until some later time; hence the time when right of action therefor accrued was properly left to the jury.</p> <p>Costs—On Appeal—Two Trials—Prevailing Party. Respondents, on being completely successful after a decision on a second appeal sustaining their right of action, are entitled to their costs on the first trial on which the action was erroneously dismissed, although that trial proved abortive.</p>

, entered June 26, 1917, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained through a defective sidewalk.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered March 5,1917, in favor of the plaintiffs and defendants Bock, in consolidated actions to quiet title and recover payments made on a contract for the sale of land, tried to the court and a jury.</p>

<p>Application filed in tlie supreme court January 9, 1918, for a writ of mandamus to compel the superior court for King county, French, J., to proceed to final judgment in a cause.</p>

<p>Covenants—Restrictions—Construction— “Porch” — Entrance Gate. Under the rule of strict construction against restrictive covenants, a building restriction against the erection of a “porch” closer than twenty-five feet to the sidewalk, is not violated by a covered entrance gate to church grounds; since a “porch” is always a part of the building.</p> <p>Same. In such a case, even if the .object of the covenant was to establish an open space affording a more extended view, the structure would not violate the covenant where the church was 53 feet back and the view remained unobstructed in all material respects.</p>

<p>Appeal from a judgment of tbe superior court for King county, Smith, J., entered April 3, 1917, upon a trial and conviction of accepting the earnings of a prostitute.</p>

<p>Husband and Wife—Community Debts—Loan. Notes signed by the husband alone for money borrowed for the benefit of the community, are obligations of the community.</p> <p>Same—Community Debts—Joint Judgment. A joint judgment against a divorced husband and wife for a community debt incurred by the husband is erroneous, in that it affects the separate estate of the wife.</p>

<p>Cross-appeals from a judgment of tbe superior court for King county, Jurey, J., entered January 18, 1917, in favor of tbe plaintiffs, in an action for an injunction, tried to tbe court.</p>

<p>Trespass—Persons Liable—Contractor. A contractor for clearing and grading is primarily liable for trespass committed in cutting timber in the performance of the contract, where the contract provided that it could not be assigned without consent and there was no evidence that it had been assigned.</p> <p>Same—-“Willeul Trespass” — Cutting Timber. There was no willful trespass by a contractor in the cutting of timber by employees, without the knowledge and contrary to the directions of the contractor’s foreman; but the same was “casual or involuntary,” within Rem. Code, §§ 939, 940, relating to treble damages for willful trespass.</p> <p>Same—Actions—Treble Damages—Pleading. In an action for treble damages for willful trespass in cutting timber, under Rem. Code, §§ 939, 940, it is not-necessary that the answer set up that the trespass was “casual or involuntary,” where under a general denial, such fact was shown.</p>

<p>Rape—Consent—-Fear — Evidence — Sueeiciency. Under Rem. Code, § 2435, subd. 3, denouncing rape where resistance is prevented by fear of immediate and great bodily harm with reasonable cause to believe that the same will be inflicted, a conviction of rape is sustained, where the prosecutrix was taken to a lonely spot by a number of men for the purpose under a prearranged plan of which she had no notice, and submitted without forcible resistance through fear and because she felt it useless to resist.</p>

<p>Work; and Labor—Construction Work—Radical Change—Question for Jury. Whether a change in profiles for railroad construction work was so radically material as to entitle the contractor to extra pay is a question for the jury, where the change required the wastage of 40,000 yards of material over the tracks of another road at an expense of 51 cents per cubic yard.</p> <p>Same—Radical Change—Quantum Meruit. Although a contract is let on a unit basis, with the right to make changes, if the engineer makes changes so radical as to materially increase the cost of the work and require the doing of an act not within the reasonable scope of the contract, a recovery therefor may be had upon quantum meruit.</p> <p>Same. In such case, where the jury has decided that the parties contracted upon the profile staked out upon the ground, the court will not say, as a matter of law, that changes which made it impossible to do the work in the manner contemplated were not so radical but what recovery could be had on quantum meruit for the work done.</p> <p>Trial —■ Verdict — Separate Items — General Verdict — Effect. Where there is but one cause of action upon quantum meruit for work done in addition to that called for in a railroad construction contract, a general verdict is not void for uncertainty in that it does not fix the amount allowed for the separate items pleaded, there having been no- motion or demurrer on the ground of pleading distinct causes of action and no request for a special verdict; since a general verdict upon the general issue finds all essential facts in favor of the respondent.</p> <p>Appeal — Review — Presumptions — Verdict. Where the court properly instructed the jury upon each item claimed, it will be presumed that a general verdict was based upon the testimony that would sustain it.</p> <p>Trial—Verdict-—Certainty. Where a verdict rests in mixed facts and opinion, or even estimates of engineers, absolute certainty is not essential.</p> <p>Work and Labor—Performance—Decision of Umpire — Radical Changes. An umpire clause in a contract for railroad construction work making final the decision of the engineer is limited to matters growing out of the contract, and does not include a claim on quantum meruit for work done under a radical departure from the contract.</p>

<p>Appeal from a judgment of tbe superior court for Pierce county, Easterday, J., entered February 3,1917, in favor of tbe plaintiff, in an action to cancel a deed, tried to tbe court.</p>

<p>Appeal from a'judgment of the superior court for King county, Albertson, J., entered October 16, 1916, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

, entered July 23, 1917, upon findings in favor of the plaintiff, in an action for personal injuries sustained through a defective sidewalk, tried to the court.

, entered December 14,1916, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.

, entered February 3,1917, adjudging the defendants to be in contempt of court, after a hearing upon a show cause order.

, entered May 12,1917, reducing an assessment for a public improvement, after a hearing before the court upon objections to the assessment roll.

<p>Fraudulent Conveyances — Between Husband and Wife—Community Property—Rights op Creditors—“Existing Equity.” Tlie husband’s contingent liability upon a lease, upon which, no rent was due at the time, is an “existing equity” in favor of creditors, within Rem. Code, § 8766, providing that gifts or conveyances of community property from a husband to his wife are valid, except as to “any existing equity in favor of creditors,” at the time of such gift or conveyance.</p>

<p>Appeal from an order of the superior court for Lewis county, Card, J., entered January 10, 1917, upon findings in favor of the garnishee defendant, dismissing garnishment proceedings.</p>

<p>Libel and Slander—Words Libelous Pee Se—Exposing Candidates to Obloquy. A newspaper article published of a candidate for office charging him with waging a campaign of slander and lies and vicious methods and with being on that account, unworthy of the office, is libelous per se, within Rem. Code, § 2424, relating to publications tending to expose any one to hatred or obloquy or to deprive him of public confidence or injure him in his business or occupation.</p> <p>Same—Words Libelous Per Se—Charging Crime. Such publication is libelous per se as charging the commission of a crime under Rem. Code, § 4964, denouncing the knowingly and wilfully making of any false assertion at any election concerning any candidate tending to prevent his election.</p> <p>Same—Privileged Communication—Falsehoods Concerning Candidates. The publication of charges against a candidate for office, libelous per se, knowing them to be false, is not privileged, under Rem. Code, § 2430, relating to communications addressed by and to persons concerned therein under reasonable grounds for an innocent motive, merely because addressed to and signed by electors; since the privilege is not, on its face, extended to falsehoods, but presents a mixed question of law and fact.</p> <p>Same—Privileged Communications—Pato Advertisements—Statutes. Rem. Code, § 4833, permitting the publication of “paid advertisements” of candidates for office, is restrictive, and does not extend the law of privilege or exempt the publisher from responsibility for libel.</p>

<p>Judgment—Default—Notice of Motion. Where hearing of a motion for a default was continued one day through efforts of defendants, they cannot claim want of notice of the hearing.</p> <p>Appeal — Review — Affidavits — Recobd. Affidavits not made a part of the statement of facts cannot he considered on appeal where it does not appear that they were the only affidavits or evidence used on the hearing.</p> <p>Bankruptcy—Husband’s Discharge—Community Pboperty. A discharge of a husband in bankruptcy, operates to discharge the wife and is a good defense as to the community.</p> <p>Judgment—Default—Interrogatories. In an action against husband and wife, the failure of the husband to answer interrogatories nropounded to him alone, does not put the wife in default.</p>

<p>Divorce—Decree—Award of Property in Common. It is error in granting a divorce, to make an award in common instead of a physical division, where the property both real and personal was extensive and diversified, and it would he oppressive to the defendant and ineffectual to plaintiff without resorting to an independent, proceeding.</p>

<p>Appeal—Review—Findings—Absence of Evidence. Where the evidence is not brought up, the findings are conclusive, and. an appeal presents only the question whether they support the judgment.</p> <p>Master and Servant—Workmen’s Compensation Act—Employment in “Warehouse”—Findings—Construction. From findings that defendant was doing a general public warehouse, dock and wharf business, it will be inferred that the dock, wharf and warehouse was a single plant or structure, within the industrial insurance act relating to extra hazardous employments in docks and wharves, and when coupled with a finding that the work in the warehouse was extra hazardous, it will be assumed that the warehouse was the superstructure of a “dock” or “wharf,” and that the work was not exempted as work in a “private warehouse;” especially since “warehouses” may or may not be within the act, depending on the nature of the work (Fullerton and Main, JJ., dissenting).</p> <p>Same—Fund. In such case, it will be assumed that a fund is or will be collected to pay the claim.</p> <p>S amSe — Compensation — Appeal ■—■ Attorney’s Fees — Statute. Rem. Code, § 6604-20, allowing the recovery .of attorney’s fees on appeal from orders of the industrial insurance commission to the superior court, does not authorize a conditional attorney’s fee on appeal to the supreme court, and none can be allowed, in the absence of statute.</p>

<p>Appeal from a judgment of the superior court for King county, Bell, J., entered April 28, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee while driving an auto truck.</p>

<p>Appeal from a judgment of the superior court for Island county, Ralston, J., entered January 9, 1917, upon findings in favor of the plaintiff, in garnishment proceedings, tried to the court.</p>

<p>Appeal from a judgment of tbe superior court for Pierce county, Albertson, J., entered September 18, 1916, upon findings in favor of tbe defendant, in consolidated actions to recover money paid and to secure tbe reduction of taxes, tried to tbe court.</p>

<p>Appeal from a judgment of tbe superior court for Spokane county, Blake, J., entered July 11, 1916, upon findings in favor of tbe defendants, in an action on contract, tried to tbe court.</p>

<p>Appeal from judgments of the superior court for Pierce county, Chapman, J., entered August 2, 1916, upon verdicts rendered in favor of the plaintiffs, in consolidated actions for personal injuries sustained in a train wreck.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered March 9, 1917, upon findings in favor of the plaintiff, in an action in tort, tried to the court.</p>

, entered March 19, 1917, upon findings in favor of the defendant, in an action to secure a reduction of taxes, tried to the court.