Volume 102 — Washington Reports

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered July 2, 1917, upon findings in favor of the plaintiff, in an action of replevin, tried to the court.</p>

, entered April 7, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee working on a separator.

<p>Appeal from an order of the superior court for King county, Jurey, J., entered January 23, 1917, setting aside a judgment and granting a new trial, in an action for wrongful death.</p>

Cross-appeals from a judgment of the superior court for King county, Smith, J., entered February 7, 1917, upon findings favorable to the plaintiff, in an action on a supersedeas bond, tried to the court.

, entered May 26,1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a life insurance policy.

, entered May 14,1917, upon findings in favor of the defendant, in an action for an injunction and for damages, tried to the court.

<p>Insane Persons—Actions Against—Defenses—Pleading. Purchasers at a tax sale and sale under execution of property of an incompetent person, suing to quiet title, must recover on the strength of their own title; hence defendant’s guardian ad litem, may rely on general denials without pleading affirmative defenses.</p> <p>Appeal—Review—Harmless Error—Technicalities. Where a case was fully tried on denials, error cannot be predicated upon defendant’s failure to plead his affirmative defenses, as the objection is technical, and under Rem. Code, § 307, must be disregarded.</p> <p>Taxation—Tax Sales—Bona Fide Purchaser—Insane Person. Where property of an insane person was bid in at tax and execution sales, pursuant to negotiations between the insane person and persons who were bound to pay the taxes, who procured friends to bid in the property at much less than it was worth, and caused the same to be transferred to another friend who knew the entire situation, the latter was not a purchaser in good faith, and could acquire no rights by virtue of the negotiations had with the insane person.</p> <p>Taxation—Tax Sales—Property of Insane Person — Redemption—Reimbursement of Purchaser. Persons bidding in the property of an insane person at tax sale, under unwarranted negotiations with the insane owner, while unable to hold the land, are entitled, in an equitable suit, to be reimbursed for the amount of the taxes paid; especially in view of Rem. Code, §9259, relating to the redemption of the lands of insane persons sold for the nonpayment of taxes by the reimbursement of the purchaser.</p>

<p>Schools and School Districts—Actions Against—“Maintain an Action”-—Statutes. Laws 1917, p. 332, providing that no action shall he commenced or maintained against a school district for non-contractual acts or omissions of officers or employees relating to playgrounds, prohibits the plaintiff from prosecuting an appeal from an adverse judgment, after the taking effect of the law; since to prosecute an appeal is to maintain an action.</p>

<p>Liens—Foreclosure—Sale—Title—Parties Concluded. Where the sheriff took a taxicab from the possession of a city by virtue of notice and proceedings in foreclosure of a chattel lien thereon, under Rem. Code, §§ 1104-1109, and the city failed to contest the matter by removing the foreclosure to the superior court as it might have done under the statute, it cannot claim that the foreclosure sale is irregular or replevy -the property from the sheriff on account of irregularity or minor defects which should have been determined by the superior court if the city claimed any interest in the property.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Carey, J., entered July 7, 1917, upon findings in favor of the plaintiff, upon appeal from an order of the industrial insurance commission, after a trial on the merits to the court.</p>

, entered September 8, 1917, upon findings in favor of the plaintiff and.certain defendants, in an action on a contractor’s bond, tried to the court.

, entered June 2,1917, upon findings in favor of the defendants, in an action on a contractor’s bond, tried to the court.

<p>Appeal—Obdebs Appealable—Denial op New Teial. No appeal lies from an order denying a motion for a new trial.</p> <p>Appeal — Notice — Sufficiency. A notice of appeal from an “order denying a motion for a new trial and all proceedings had in said cause,” is insufficient as a notice of appeal from the two final judgments entered, one on dismissing certain defendants and the other entered upon the verdict; in view of Rem. Code, § 1719, requiring the appellant to designate with reasonable certainty from what judgment or orders the appeal is taken.</p> <p>Appeal—Notice—Amendment. A notice of appeal from an order granting a new trial is not amendable to make it an appeal from the final judgment, within Rem. Code, § 1734, allowing amendment in matters of form, since the defect was not in form but in substance.</p>

, entered April 10, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee worldng on an electrical generator.

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered January 25, 1917, in favor of the defendant, dismissing an action for equitable relief, upon stipulation.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered July 7, 1917, in favor of the defendant, dismissing an action to reform a contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Skamania county, Darch, J., entered March 15, 1917, upon findings in favor of the plaintiff, in an action for an injunction, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered January 6, 1917, upon findings favorable to the plaintiffs, as against one defendant, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered June 28, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of tbe superior court for Pierce county, Clifford, J., entered December 30,1916, upon the verdict of a jury rendered in favor of the defendants, in an action of replevin.</p>

, entered April 18, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in loading logs on a car.

<p>Trial—Order of Proof. It is not error to refuse to reopen a case in rebuttal to establish a fact, which, if material, the plaintiff should have presented in his case in chief.</p> <p>Appeal—Harmless Error—Instbuctions. Upon an issue as to fraud, vitiating a written contract, it is not prejudicial error to instruct that the proof of fraud must be clear, positive and convincing, where the jury could not have been misled by the use of the word “positive.”</p> <p>Fraud—Settlement—Concealment—Issues. Where a settlement was made of an option contract prior to defendant’s sale of the subject-matter, plaintiff, suing to set aside and entirely evade the settlement, is not entitled to an instruction that it was defendant’s duty to notify plaintiff of the sale.</p>

<p>Appeal from a judgment of tbe superior court for King county, Frater, J., entered July 24, 1917, upon findings in favor of tbe defendant, dismissing an action on contract, tried to tbe court.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered May 16, 1917, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered August 21, 1917, directing the sale or mortgaging of property of an estate to pay fees of the executor, after a hearing upon a show cause order.

<p>Compbomise and Settlement—Items Included. Where an item included in a suit had been dismissed as a subject of controversy therein, without prejudice to an independent action, and the suit went to final judgment on other items and appeals were taken, a compromise of the appeals and judgment did not include the item dismissed from the suit.</p> <p>Judgment—Bab—Mattebs Included. A judgment on consent, vacating the judgments appealed from and all appeals taken, pursuant to a settlement, and not mentioning an item dismissed without prejudice, is not a bar to a subsequent action thereon; nor would the holder be barred by failure to appeal, since it could accept the ruling allowing independent action.</p> <p>Same — Bab — Pasties Concluded. Such consent judgment on settlement of the suit is not binding upon the defendant as to the item dismissed out of the ease without prejudice, where such item was dismissed because it was the personal obligation of the manager of the company, who was not a party to the suit and had no interest in the judgment compromised.</p> <p>Bills and Notes—Action on Due Bill—Defenses. In an action on a due bill given as the personal obligation of the manager of a company, the fact that the company had been given credit on its books for the amount is no defense to the action against the manager.</p>

Applications filed in the supreme court February 4, 1918, for orders to substitute representatives of deceased parties on appeal. Granted as to respondent James M. Davis; denied as to respondent Edith M. Bigg.

<p>Limitation of Actions — Statutes — Application to Equity. Under Rem. Code, § 153, abolishing all distinctions between actions at law and equity by providing a single form of action, and Id., § 155, providing that actions can only be commenced within the periods prescribed after the cause accrues, and Id., §§ 156, 157, 159, and 165, providing limitations for actions for the recovery of real estate, on contract, in writing and not in writing, and for fraud, and for relief not thereinbefore provided for, the statute of limitations will be applied by courts of equity as it would be applied at law, except as between the trustee and cestui que trust of a direct, express, continuing trust in the exclusive jurisdiction of a court of equity, in which case the statute does not run as long as the trust subsists.</p> <p>Trusts—Express Trusts—Actions—Lien—Limitations. Where the trustees of an express continuing trust asserted adverse claims for more than two years and made the same known to the cestui que trust who then elected her remedy and litigated her claims to final judgment without asserting the proper equitable remedy to enforce the trust, an action therefor is barred by the statute of limitations.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered October 20,1916, in favor of the plaintiff, in an action for rescission, tried to the court.</p>

<p>Taxation—Valuation—Excessive Assessment. An assessment of tide lands, upon a zone system having reference to the value of the central unit, at $10,855, is excessive and not equal or uniform with other like property, where it appears that the tract consisted of 2.73 acres and had no practical value apart.from the uplands, which were worth not to exceed, and could he bought for, $40 to $50 per acre, and other water front property was assessed at from $10 to $250 per acre.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered January 5, 1917, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered July 6, 1917, upon granting a nonsuit, dismissing an action on a life insurance policy, tried to the court and a jury.

<p>Highways—Establishment—Prescription—Trails. The adverse use of a trail hy travelers on foot and horseback and hy pack trains and “go-devils,” consisting of two poles dragged hy horses, for the transportation of goods, for over thirty years, constitutes the samé a highway hy prescription, although the same was not used hy wheeled vehicles.</p> <p>Same—-Establishment by Prescription—Width. A highway hy prescriptive use of a trail hy travelers on foot and horseback is not limited to the actual path traveled, twenty-four inches or less, hut may be fixed at twelve feet, where such width is reasonably necessary for the public easement, required for passing as well as traveling in one direction.</p>

<p>Corporations—Dissolution-—Powers op Trustees. A corporation with defined powers limited to the manufacture and sale of beer and the operation of a brewery, is not dissolved by the state-wide prohibition law; and its stockholders are not thereby made tenants in common of its property, but as between stockholders, it may engage in any lawful business, and the trustees have power to assemble its assets and liquidate its indebtedness and, pending a formal dissolution, conduct its affairs.</p> <p>Same—Rights of Stockholders. A stockholder of such a corporation dispossessed by stockholders in control of the stock, has no right to assert possession over other stockholders, by reason of his former control of the majority of the stock.</p> <p>Trover and Conversion-—What Constitutes—Claim of Title— Trustees op Corporation. Corporation trustees are not guilty of a conversion in taking possession of the property of a stockholder, where, by resolution, they disclaimed any intention of claiming the same as owners, admitted the adverse title, and demanded its removal from the plant.</p> <p>Same—Trustees of Corporation—Liability. One refusing to remove his property on demand of trustees of a corporation, cannot hold-the trustees liable for the value of the property used, as for a conversion by them, his remedy being against the corporation for an accounting for the property used by it.</p> <p>. Corporations—Rights of Stockholder. Where a stockholder’s operation of a corporation plant was by sufferance only, without any right of possession, upon dispossession he cannot recover for lost profits anticipated in continuing the business.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered June 19, 1917, upon findings in favor of the plaintiff, in an action for a writ of mandate, tried to the court.</p>

F. Wright, J., entered July 18, 1917, granting a new trial, after granting motion for nonsuit, in an action for wrongful death.

Appeal by plaintiff from a judgment of the superior court for Grays Harbor county, Abel, J., entered August 14, 1917, in favor of the plaintiff, upon default of the defendants, in an action to foreclose mortgages.

<p>Forcible Entry and Detainer — Relief — Amendment of Complaint. An action for unlawful detainer may not, by amendment of tbe complaint, be changed, over the defendant’s objection by demurrer thereto, to an action for equitable relief; and the court having jurisdiction only by a strict compliance with the statute, has no power to grant injunctive relief.</p> <p>Prohibition—When Lies—To Courts. Prohibition lies to prevent a superior court, having jurisdiction only for the purpose of determining issues in unlawful detainer, from granting injunctive relief, under an attempted amendment over defendant’s objection.</p>

, entered February 27,1917, upon findings in favor of the plaintiffs, in an action for equitable relief, tried to the court.

<p>Municipal Coepoeations — Tobts — Maintenance of Nuisance — Evidence—Sufficiency. Where a wading pool in city playgrounds was cleaned and drained each Friday, the fact that a broken bottle was found therein on Sunday is not sufficient to charge the city with’ maintaining a nuisance or render it liable for injuries sustained by a child, cut by the broken glass, there being no evidence of notice of the glass, either actual or constructive.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Bonald, J., entered dune 30, 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 through defects in a county road.</p>

, entered March 5,1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in alighting from a street car.

<p>Judgment—Vacation—Grounds—Mistake of Clerk. A judgment may be vacated for the mistake, neglect or omission of the clerk, in entering findings and judgment, contrary to the directions of the judge to hold them, after they were signed and given to the clerk.</p> <p>Same — Vacation — Notice — Waiver. A voluntary appearance without objection to trial of the merits of the motion waives notice of proceedings to vacate a judgment required by Rem. Code, § 468.</p> <p>Appeal—Review—Record. A recital in a bill of exceptions of an appearance is sufficient to show the appearance, although the judgment does not contain such a recital.</p> <p>Appeal—Review—Objections. Objection to want of formality in proceedings to vacate a judgment must be made below and preserved in the record, in order to be reviewed on appeal.</p> <p>Replevin — Ownership of Automobile — Evidence—Sufficiency. In an action of replevin of an automobile, purchased in the name of a father, the evidence sufficiently shows that it was in fact owned by his son, where it appears that he paid for it, and for the state license fee, insurance, and costs of maintenance, and that the title was taken in his father’s name for the sake of convenience only.</p> <p>Estoppel—Title to Property—Ostensible Ownership. A son purchasing an automobile in his father’s name is not estopped by that fact to assert title, as against a judgment creditor of his father, purchasing at execution sale; since such judgment creditor is not an innocent purchaser for value, and can assert only the title which the judgment debtor had.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Blake, J., entered September 19, 1917, upon findings ,in favor of the plaintiff, in an action for specific performance, tried to the court.

<p>Cross-appeals from a judgment of the superior court for Spokane county, Oswald, J., entered October 8, 1917, upon findings favorable to the defendant, in consolidated actions for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered December 16, 1916, upon a trial and conviction of accepting the earnings of a prostitute.</p>

Application filed in the supreme court March 9,1918, for a writ of prohibition to prevent the superior court for Clallam county, Ralston, J., from entering a judgment.

<p>Judges—Affidavit of Prejudice—Hearing. Under. Rem. Code, § 209-1, requiring a judge, on filing an affidavit of prejudice, to “forthwith” enter an order for a change of venue, the court may, where an investigation is necessary, continue the cause until such times as the investigation may be properly made.</p> <p>Same—Disqualification—Calling in Judge. Under Rem. Code, § 209-1, requiring a judge, upon the filing of an affidavit of prejudice, to change the venue or call in a new judge, his power is not exhausted hy a single attempted exercise thereof; hut having determined to call in another judge in the court of original jurisdiction he cannot subsequently change the venue to another court.</p> <p>Judgment—Orders—Ex Parte.' After appearance hy a party, it is error to enter an ex parte order, as the statute entitles the parties to notice of all proceedings.</p>

<p>Waters and Water Courses—Grant to City—Deed. Merely an easement is granted for the purposes stated, and no title to the water itself passes by a deed to a city granting the exclusive right and privilege to take and appropriate to its own use for all purposes any and all water flowing or which may hereafter flow into the stream over or across described lands of the grantor, together with the right to enter for the purpose of constructing flumes, pipe lines, etc., and also the privilege of flooding or backing water upon the premises; hence the owner of the servient estate may make such use of it as is not inconsistent with the easement granted (Overruling, on rehearing, Id., 98 Wash. 317; Fullerton, Mount and Main, JJ., dissenting).</p> <p>Same—Grant to City—Easement—Adverse Use. If a water deed conveyed merely an easement to take and appropriate water, lay pipe lines, and flood or back water upon the premises, there can be no adverse title by prescription, where there was no interference, either present or threatened, with the easement and rights granted.</p>

<p>Eminent Domain—-Damages-—-Instructions. In condemnation proceedings for an alley which divided appellant’s plant into two tracts, upon an issue as to the damage to the remainder, a requested instruction to the effect that the jury should not consider the fact that the city might grant a permit to connect the two tracts hy overhead or underground crossings is not covered by a general instruction that the abutting property owner has no greater rights to the alley than any other inhabitant of the city; and it is error to refuse the request where evidence of the damage was based upon the assumption that the owner had no right to make the connection.</p> <p>Same. Such requested instruction is not covered by an instruction that the jury might consider damages caused by compliance with any ordinance of the city governing the erection of such plants as the owners, where it referred to fire ordinances in evidence and not to any ordinance permitting connections over or under the alley.</p> <p>Appeal—Record—Instructions. Where all the instructions were not embodied in appellant’s abstract on appeal, they may be brought up in a supplemental abstract or in the record.</p>

<p>Certiorari to review a judgment of the superior court for Mason county, Mitchell, J., entered July 10, 1917, dismissing proceedings to condemn land for an electric power plant.</p>

, entered July 24,1917, upon the verdict of a jury rendered in favor of the defendants,in an action for personal injuries sustained by a pedestrian struck by an automobile.

<p>Appeal from an order of the superior court for Walla Walla county, Mills, J.,‘ entered March 31, 1917, dismissing proceedings in prohate, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered February 19,1917, in favor of the defendant, upon an agreed statement of facts, in an action to construe a will.</p>

<p>Appeal from a judgment of tile superior court for Spokane county, Huneke, J., entered May 25, 1917, upon tie verdict of a jury rendered in favor of tie defendant, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Asotin county, Miller, J., entered March 15,1917, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.</p>

<p>Executors and Administrators—Claims—Contract fob Services —Evidence—Sufficiency. A decedent’s promise to pay a foster son for past services is supported by a sufficient consideration, where she had promised her dying husband to make the payment, she had taken her husband’s separate and community estate burdened with the promise, and there was a moral obligation on her part to carry it out.</p> <p>Same—Claims—Waiver. The surrender of notes to a decedent in her lifetime does not constitute a waiver of a claim against the estate, where no equivalent was given and the payee was justified in assuming that decedent would subsequently provide for the indebtedness by will or otherwise.</p> <p>Wills—Construction—Payment of Debt by Legacy—Presumption. There is no presumption that a bequest is in payment of a debt due the legatee,. especially where it was less than the debt; and even though the creditor was named as a residuary legatee, where the residuum is uncertain in amount or time of payment.</p> <p>Executors and Administrators—Claims — Joinder — Necessity. The presentation of a claim for moneys expended does not bar the filing, within the time limited by law, of another claim for services rendered, where the two claims were upon separate accounts for different subject-matters; since they need not be joined.</p> <p>Assignments—Right to Sue—Real Party in Interest. Under Rem. Code, § 191, providing that an assignee may maintain an action notwithstanding the assignor may have an interest in the thing assigned, an assignee of a chose in action for the purpose of collection only may maintain an action in his own name as the real party in interest.</p>

<p>Time—Pee Diem Compensation-—Fbactions of a Day—Officebs. Under Rem. Code, § 42-3, providing that an official court reporter, who is made an officer of the court, shall he paid ten dollars per diem for every day that he is actually in attendance, he is entitled to the per diem for each day regardless of the 'period of time that such attendance covers, inasmuch as the law does not consider fractions of a day in fixing salaries and fees for public services at so much per day.</p>

<p>Application filed in the supreme court February 1, 1918, for a writ of certiorari to review an order of the superior court for King county, Ronald, J., adjudging a public use and necessity in condemnation proceedings.</p>

, entered December 6, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor through the breaking of a swing.

<p>Cross-appeals from a judgment of the superior court for Thurston county, D. F. Wright, J., entered December 16, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages to property through the construction of a state highway.</p>

<p>Contracts—Construction—Railroad Construction—Delivery of Materials. A contractor’s agreement to deliver to the subcontractor sand and gravel “as near as available railway trackage shall permit, to bunker, hopper or working sites” does not require delivery to the subcontractors to bunkers and working sites, where the principal contract, which was made part of the agreement, plainly indicated that the traffic should not be interfered with, and placed the entire contract of tracks and traffic in the hands of the railway superintendent, who refused permission to make deliveries west of a certain street; since the tracks were not then “available” for such deliveries.</p> <p>Principal and Surety — Contract — Subcontractor’s Bond—Notice of Breach—Sufficiency. A surety company is given sufficient notice of the principal’s breach of the ■ contract, where, having no agent in the city, a registered letter and telegram were sent to its home office giving notice of the breach, and that it would be necessary to take over the work and requesting what it proposed to do about it.</p> <p>Same—Release—Extras. A compensated surety on construction work is not released because the work included extras, where the extras were provided for in the contract.</p>

<p>Schools and School Districts—“Religious” Instruction. The giving of credits for Bible study done outside of school, furnishing an outline of study, conducting examinations, and the rating of papers, covering the “historical, biographical, narrative and literary features of the Bible,” violates Const., art. 1, § 11, providing that no public money shall be applied to any religious worship, exercise or instruction.</p>

<p>Cross-appeals from an order of the superior court for King county, Frater, J., entered July 24, 1917, fixing the compensation of receivers and approving their final accounts.</p>

<p>Highways—Establishment—Notice—To Minors—Jurisdiction— Eminent Domain. Under Rem. Code, § 5633, requiring notice to be given to property owners of proceedings by county commissioners to establish a county road, the court acquires no jurisdiction of eminent domain proceedings to condemn the land of a minor for whom no guardian act litem was appointed in the preliminary proceedings, since notice of the hearing as to the necessity and route and award of damages by the commissioners was jurisdictional as to such minor; and the objection is available on certiorari to Review the proceedings in eminent domain (Parker, Mount, and Main, JJ., dissenting).</p>

Application filed in the supreme court May 2, 1918, for a writ of mandate to compel the state fish commissioner to issue to the relator a purse seine fishing license.

<p>Petitions to recall remittiturs and for leave to vacate a judgment, filed in the supreme court April 26, 1918.</p>

<p>Estoppel—By Record—Judgment and Failure to Appeal. Judgment unappealed from in a contempt proceeding to enforce an injunction, in which the court had jurisdiction to assess plaintiff’s damages, dismissing the proceeding without prejudice to plaintiff’s right to maintain an action for damages, estops the defendant from asserting that plaintiff elected his remedy in bringing an action for an injunction and so could not sue for damages.</p> <p>Landlord and Tenant — Interruption of Quiet Enjoyment — Measure of Damages. The measure of damages for an interruption of quiet enjoyment by interference with light is the difference between the value of the property as furnished and the rent reserved, or the diminished value of the use of the property; loss of profits being usually regarded as too remote and speculative, unless proof of profits is so clear that they were, as a matter of law, within the contemplation of the parties.</p> <p>Same. The evidence of loss of property is not sufficient to bring a case within the exception to such rule, where the tenant’s business-was not interrupted, he complained only that facilities for carrying it on were not so good as before, and there was nothing to show how much of the lost profits was due to the use of artificial lights, how much to plaintiff’s partner being in a rival business, or how much to personal elements in the management of plaintiff’s business and the sale of his goods.</p>

<p>Telegraphs and Telephones — Mistake in Tbansmission—Damages—Proximate Cause. Where, through the mistake of a telegraph company, apples shipped from Oregon to California were delivered to the consignee by the consignor’s agent at $1.08 per box, instead of $1.80, in reliance upon an erroneous message, and the mistake of the telegraph company was the proximate cause of the consignor’s loss, it was not the duty of the consignor to mitigate his damages by the acceptance of a prompt tentative offer by the consignee to settle for the apples at $1.50 per box; since that would have made a new contract and waived his claim against the telegraph company; and the measure of his damages is the difference between the price received by him on the completed sale at $1.08, and the fair market value of the apples (overruling on rehearing, Id., 98 Wash. 431; Fullerton, Mount, and Chadwick, JJ„ dissenting).</p>

<p>Frauds, Statute of—Saue of Lands—Memorandum—Description —Sufficiency. The statute of frauds requiring a contract for a broker’s commission to be in writing is not satisfied by a writing describing the “Hillcrest ranch below Pullman,” of 907 acres “more fully described as parts of sections 17, 18, 19 and 20 in township 13, range 44.”</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered December 1, 1916, dismissing an action for an injunction, tried to the court.</p>

, entered January 12, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pupil through falling from a playground apparatus.

<p>Appeal from a judgment of the superior court for Grant county, Mitchell, J., entered September 24, 1917, dismissing consolidated actions for injunctive relief, tried to the court.</p>

<p>Eminent Domain—Necessity—Practicability;. Upon certiorari to review a finding of public necessity, that the plan invites engineering difficulties will not defeat the proceedings when it cannot be said to be impracticable, as relators lose nothing if the scheme fails.</p> <p>Same—Necessity—Finding—Sueeiciency. A finding of public necessity is sufficient without finding in terms that the public interest required it, where from the facts found it appeared that plaintiff had a franchise to furnish a city with water, that the city depended upon the company, whose supply was insufljeient to meet growing demands, and that the company was condemning in aid of its franchise, in view of Rem. Code, § 925, requiring that the enterprise be public, required in the public interest, and the property sought necessary therefor.</p> <p>Same—Property Devoted to Public Use—Navigable Stream— Public Necessity. A timber company having large tracts adjacent to a stream navigable for logging purposes, and making prior use of the stream as a highway, cannot resist condemnation thereof by a water company for the purpose of supplying a city with water, but is entitled to recover its damages pro tanto, to the extent of its injury; since property devoted to a public use may be condemned for a different public use where there is a public necessity therefor.</p> <p>Same—Property Devoted to Public Use—Anticipation of Future Needs—Public Necessity. A water company supplying a city with water cannot resist condemnation by another water company for the same purpose, of lands acquired and held by it as a riparian owner on the stream in anticipation of its future needs, where it is not shown that it has put or intends to put the lands to a public use within a reasonable time, or that the same will be necessary for the carrying out of its franchise obligations to the city, or that it has the right or means to divert the water; its right as riparian owner giving it no right to divert the stream (overruling on rehearing, Id., 94 Wash. 691).</p> <p>Same—Property Devoted to Public Use—Defenses. A company supplying water to a city cannot resist condemnation of its riparian rights on a stream by another water company on the ground that it had never been requested and had never refused to furnish a supply of water to the city for all purposes, where it was not using and did not have the right to use the waters if it had been requested to supply additional water.</p> <p>Same—Property Devoted to Public Use—Necessity. A water company having a franchise to supply a city with water may condemn the prior rights of a log-driving company in a stream, whether its rights be destroyed or merely impaired, where by an admeasurement of the public interests it appears that the same will contribute directly to the daily necessities of the public, while the prior use contributes only indirectly and as reflected through the maintenance of a purely commercial enterprise.</p> <p>Mount and Fullerton, JJ., dissent.</p>

<p>Petition filed in the supreme court December 24, 1917, to review tbe findings of tbe state board of law examiners in disbarment proceedings.</p>

<p>Injunction—Unlawful Occupations—-Paeties Specially Interested— Municipal Cobpobations — Jitneys — Regulation. A street ear company having a franchise to carry passengers for hire in a city may maintain an action to enjoin, as unlawful interference therewith, the carriage of passengers, cutting down its revenues, by motor vehicles in defiance of Rem. Code, § 5562-37 et seq., regulating the privilege and requiring as a condition precedent that such carriers give a bond to protect passengers against personal injuries; and it is immaterial that the company has no interest in the bond.</p> <p>Same—Restraining Nuisance—Unlawful Occupations—Jitneys. Such action is maintainable, since to engage in any form of business in defiance of laws regulating the same is a nuisance per se, to be enjoined by any one suffering a special injury thereby; even though there be legal remedy by arrest and punishment.</p> <p>Municipal Cobpobations —■ Stbeets — Jitneys — Regulation. A “for hire” license, under Rem. Code, § 5562-1, does not authorize the carriage of passengers for hire in cities of the first class, until the owner has complied with Id., § 5562-37 et seq., requiring, as a condition precedent, the giving of a bond to protect passengers from personal injuries.</p> <p>Same. Rem. Code, § 5562-37 et seq., requiring a bond for the protection of passengers in motor vehicles operated for hire in cities of the first class, applies whether the vehicles are operated over fixed routes or not.</p> <p>Same—Use of Stbeets—Motor Vehicles—Regulation—Bond's— .Constitutional Law—Due Process—Equal Protection op Laws, The jitney bus act, Rem. Code, § 5562-37 et seq., requiring city motor carriers of passengers for hire to give a security bond executed by a qualified surety company, is not invalid because of the fact that there are no qualified surety companies from which such bonds are obtainable; since the state in the ex'ercise of its police power can prohibit the use of the streets as a place of private business.</p> <p>Injunction—Unlawful Occupations—Parties Specially Interested. Where the sole business of a street railway company is derived from the fares collected from passengers carried, any deprivation of such fares is an interference with its property and special damages if in violation of law, entitling the company to injunctive relief.</p> <p>Injunction—Unlawful Occupation—Jitney Busses. In injunction to restrain the operation of jitney busses in violation of a city ordinance, an answer that defendant’s motor vehicles are not operated as jitney busses, states a good defense.</p>

<p>Intoxicating Liquors—License—Recovery oe Fees—Voluntary Payment. Where, in order to close out its business when the state wide prohibition law was to go into effect on January 1, 1916, a brewing company was compelled to take out a state license for the fiscal year commencing July 1, 1915, the payment for the full year was not a voluntary payment, and the fees exacted by the state for the last half of the term during which the license could not be used may be recovered from the state, regardless of whether they were paid under protest or not.</p>

<p>Appeal—Record—Exhibits. Where a statement of facts is struck out, the court cannot consider exhibits which are made a part of the statement.</p> <p>Wills—Contests—Abused Discretion—Statutes. Under Laws 1917, p. 648, § 19, substituting a discretionary power to award costs in will contests for the arbitrary rule of Rem. Code, § 1313, requiring costs to be awarded against an unsuccessful contestant, it is an abuse of discretion to award costs against a contestant who made out a prima facie showing of probable cause for contesting a will, it being made to appear that the testator had executed a prior will in favor of contestant and had probably been unduly influenced to execute a later will.</p>

<p>Assault and Battery—Self-Defense—Sufficiency of Evidence. In a prosecution for assault, where the accused, could not say whether she struck the prosecuting witness or was warding off a blow when he turned after being jabbed in the back, there was no evidence of self-defense to warrant an instruction thereon.</p> <p>Appeal—Review—Harmless Error—Presumption. Since error is not presumed, a remark of the court in excluding certain evidence, to the effect that the jury must “disregard all testimony,” will be considered as referring to the testimony under consideration.</p>

<p>Divorce—Suit Money—Temporary Alimony — Evidence — Sueeiciency. A wife is not entitled to suit money and temporary alimony out of community property of little consequence where it appears that it was all necessary to tlie maintenance of an established business, and it appears that she is possessed of a large amount of money and property and is living at home at the expense of the defendant.</p> <p>Appeal—Decisions Appealable—Final Order—Temporary Alimony. An order for the payment of attorney’s fees and monthly alimony pendente Ute is appealable as a final judgment, under Rem. Code, § 1716, subd. 1, authorizing an appeal from the final judgment entered in an action or proceeding.</p>

Motion to dismiss an appeal from an order of the superior court for King county, Ronald, J., entered September 18, 1917, allowing claims against an insolvent and fixing their priority.

, entered June 23, 1917, upon findings in favor of the defendants, in an action to compel the payment of warrants issued against a local improvement fund, tried to the court.

F. Wright, J., entered September 4, 1917, upon findings in favor of the intervener, in an fiction to recover a reward, tried to the court.

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered July 2, 1917, upon granting a nonsuit, dismissing an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered July 9, 1917, upon findings in favor of the defendants, in an action for rent, tried to the court.</p>

<p>Appeal—Review—Harmless Ebrob. In an action tried to the court, error in admitting evidence is harmless where it is apparent that the evidence was disregarded.</p> <p>Wore and Labor—Salary—Quantum Meruit. Where plaintiff’s employment was admitted, and the evidence showed that no specific salary was agreed upon, the plaintiff was entitled to recover upon quantum meruit.</p>

<p>Appeal from a judgment of tbe superior court for King county, Gilliam, J., entered June 23, 1917, upon findings in favor of tbe plaintiffs, in an action for equitable relief, tried to tbe court.</p>

<p>Banks and Banking—Payment of Forged Check—Evidence— Sufficiency. In a depositor’s action to recover from a bank the amount paid out on a forged check, there is sufficient evidence of the forgery, where plaintiff testified that he did not sign the check, which disappeared when, during his absence, it came into the hands of his bookkeeper who absconded, having also forged another check about the same time.</p> <p>Same—Payment of Forged Check—Liability—Defenses—Negligence of Depositor. A bank has no right to charge against the depositor the amount paid out on a forged check, unless the depositor is estopped by his course of conduct, negligence or laches; and negligence is not shown by the employment of a bookkeeper who was recommended by a reputable firm, without notice of a previous criminal charge against him under an assumed name.</p> <p>Same—Payment of Forged Check—Notice by Depositor—Limitations. In viéw of Rem. Code, § 3363, limiting a bank’s liability to depositors on forged checks, unless notice be given the bank within sixty days, a shorter limitation by contract will not be assumed from the fact of printed notice on the pass book requiring notice to be given within ten days, where the same was not specially called to the depositor’s attention.</p> <p>Same—Payment of Forged Check—Notice by Depositor—Diligence. Diligence in giving notice of the payment of a forged check is shown where it appears that the depositor was absent when his bookkeeper, who committed the forgery, receipted for the vouchers, that he employed another bookkeeper within five days, and discovered the forgery within eight days, after his return and immediately gave notice thereof to the bank.</p>

, entered September 14, 1917, upon granting a nonsuit, dismissing an action for personal injuries sustained by a street railway employee struck by an automobile.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered May 12,1917, upon a trial and conviction of forgery.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered October 19, 1917, upon sustaining a demurrer to the complaint, dismissing an action for breach of covenant.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered January 11, 1918, upon findings in favor of the plaintiff, in an action on a promissory note, tried to the court.</p>

<p>Appeal — Decisions Reviewable — Amount in Controversy. An order in a garnishment proceeding suspending remedies upon a judgment for costs in the sum of $160.65, recovered on appeal to the supreme court, being an independent proceeding to recover less than $200, is not reviewable in the supreme court.</p> <p>Certiorari—Jurisdiction—Amount in Controversy. The limitation of $200 upon the jurisdiction of the supreme court, is equally applicable to appeals and to writs of review.</p>

<p>Appeal—Preservation oe Grounds—Exceptions—Findings Embodied in Order. It is not necessary to except to findings of the court mingled with the recitals of the decree, in view of Rem. Code, § 382, which provides that if is not necessary to except to any ruling or decision which is embodied in a written judgment or order.</p>

, entered October 13, 1917, upon findings in favor of the plaintiff, in an action on a promissory note, tried to the court.

<p>Appeal from a judgment of tlie superior court for Lewis county, Reynolds, J., entered October 8, 1917, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through a defective sidewalk.</p>

<p>Appeal from an order of the superior court for Thurston county, Mitchell, J., entered April 25, 1918, quashing a writ of review to review an order of the public service commission directing the refund to a shipper of overcharges for transportation services.</p>

<p>Appeal from an order of the superior court for King county, Smith, J., entered April 6, 1917, dismissing an appeal from a conviction in a justice court, for want of diligence.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered April 3, 1917, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Application filed in the supreme court April 24,1918, for a writ of mandamus to compel the superior court for King county, Jurey, J., to render final judgment and sentence against a defendant upon a plea of guilty.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered August 10, 3917, in favor of the plaintiff, in an action for an injunction, tried to the court.</p>

<p>Municipal Cokpokations — Taxation — Levy eok Indebtedness — Limitations—Statutes. Rem. Code, § 7653, relating to tax levies by cities of tbe second class and providing a limit only for levies for general purposes, was not intended to impliedly repeal, but must be taken in pari materia with, Rem. Code, § 5131, as originally enacted, and as amended subsequent to the passage of § 7653, and which fixes a limit for levies to pay outstanding indebtedness, in accordance with the harmonious policy of the laws respecting limitation upon the powers of all cities in this respect.</p>

<p>Cross-appeals from a judgment of the superior court for Lewis county, Reynolds, J., entered November 12, 1917, upon findings in favor of the plaintiffs, in an action for equitable relief, tried to the court.</p>

<p>Appeal from a. judgment of tbe superior court for Pierce county, Clifford, J., entered July 31, 1917, in favor of the plaintiff, in an action for equitable relief, tried to the court.</p>

<p>Principal and Surety—Release of Surety-—Contractor’s Bond— Conditions. The surety upon a subcontractor’s bond, entitled to notice and opportunity to complete the work, is not released from liabilities as they existed at the time of the default by reason, of the principal contractor’s assuming control and completing the work after giving notice of the default, where no burden or liability was imposed upon the surety on account of such completion of the work.</p> <p>Same—Release of Surety—Contractor’s Bond — Overpayments. Under a subcontractor’s bond providing for retention of a percentage of the value of all work performed until complete performance, the surety is not released by payments during the progress of the work in excess of the amount due, where they were necessary to protect the property from lien claims and did not prejudice the surety, and more than the amount of the reserved fund had been used to pay creditors and diminish the liability of the surety.</p> <p>Same—Contbactob’s Bond—Liability oe Stjbety—Liens to be Discharged. A surety upon a subcontractor’s bond for the faithful performance of a state contract and full protection to the state against mechanics’ liens and other claims, under Rem. Code, § 4326, is liable for claims duly filed with the state board for materials furnished prior to default the fairness of which was not questioned, although they had not yet been paid.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered November 14, 1917, upon findings in favor of the defendant, in an action for rent, tried to the court.</p>

, entered October 1, 1917, upon findings in favor of the plaintiff, in an action on an account stated, tried to the court.

<p>Master and Servant—Injuries to Servant—Safe Place—Bridges —Clearance. In an action for the death of a brakeman, struck by a railroad bridge while leaning out to inspect a hot box, a railroad company is not negligent in maintaining the bridge with a clearance of only two feet, where that was the standard construction and employees were not required to be upon the side of the cars or engines when passing over the bridge.</p> <p>Same—Injuries to Servant—Defective Locomotives. In ah action for the death of a brakeman, struck by a railroad bridge while leaning out to inspect a hot box, evidence that the engine was leaking steam to such an extent as to obscure the deceased’s view of the bridge, and that it began to leak steam shortly after leaving the roundhouse and the condition became worse as the trip progressed, is sufficient to take the ease to the jury upon- the question of negli-. gence in the operation of an engine in a defective condition, and whether that was the proximate cause of the death.</p> <p>Same—Injuries to Servant—Duty to Warn. In such a case, the failure of the engineer to warn the deceased when the train was approaching the bridge, was not negligence, where there was no negligence in failing to sooner discover his position, and as soon as it was discovered the engineer called to him and attempted to stop the train.</p>

<p>Evidence—Parol Evidence to Vary Writing—Ambiguity. Where a contract for the sale of land fixed a time limit for the grantor to remove certain timber, without describing the timber or fixing the amount, it is ambiguous, and parol evidence is admissible as to the amount of timber reserved in the sale and subject to removal.</p> <p>Trial—Issues and Proof—Instructions. In an action for damages for the value of timber taken, and for damages to the land itself by the removal of the timber, in which much evidence on those issues was taken, they are properly submitted to the jury.</p> <p>Same. In such an action, it is not erroneous to submit an issue as to damages from “careless and negligent” logging operations, although the complaint did not use those words, when the complaint was clearly to that effect.</p> <p>Appeal—Review—Waiver of Error. Error cannot be predicated upon the submission of an issue because of want of sufficient evidence thereon, where appellant failed to move to withdraw such issue and requested an instruction thereon.</p> <p>Appeal—Review—Verdict — Evidence — Sufficiency. A meager verdict for damages upon five causes of action, will not be held unsupported by the evidence, where there was evidence of specific wrongs entitling respondent to at least nominal damages,. some ot the issues were well sustained and warranted the verdict, and the case went to the jury unchallenged and without request for specific findings or pointing out any specific issue claimed to be unsustained.</p>

<p>Carriers—Of Goods—Contracts—Illegality—Pleading—Affirmative Defense. In an action against a carrier for breach of its contract to expedite a shipment of merchandise, salable only at a limited season, the illegality of the contract as giving special privileges in violation of tariff rules and regulations cannot be raised where it was not specially pleaded as a defense.</p> <p>Same—Special Contract—Breach—Pleading — Complaint —• Objections. In an-action against a carrier for breach of a contract to deliver goods at a certain destination within a specified time, in which the complaint set out, and the trial proceeded on the theory of, a special oral contract, objection cannot be made to some confusion in the language of the complaint, where no motion was made to strike or require an election.</p> <p>Same—Special Contract—Breach—Time of Delivery—Defenses -—-Diligence. In such an action, it is no defense that the goods were transported with reasonable diligence.</p> <p>Same — Special Contract—-Bill of Lading — Changing Terms After Shipment—Acceptance—Effect. Where a carrier by special oral contract to expedite a shipment of goods, agreed to deliver the same at a certain destination within a specified time, and pursuant thereto took entire charge of the shipment, it cannot afterwards, without consent of the shipper, issue a bill of lading containing different terms as the terms of the agreement; and the shipper, accepting the bill of lading after the goods have been shipped and it is too late for him to recede, will not be bound by the terms of the bill of lading.</p> <p>Evidence—Declarations of Party—Letters. In an action against a carrier for breach of a special contract to deliver goods at a certain destination within a specified time, letters written by the plaintiff to defendant are not inadmissible as self-serving declarations where they contained no reference to the contract, merely expressing anxiety to get the goods in time, a payment of charges under protest, and a statement of damages for delayed delivery.</p>

<p>Appeal from an order of the superior court for Lewis county, Reynolds, J., entered November 6, 1917, refusing to appoint an administrator, after a hearing before the court.</p>