Volume 103 — Washington Reports

<p>Appeal from a judgment of the superior court for Thurston county, D. F. Wright, J., entered April 6, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Public Lands — Patents—Boundaries—Shore Lines. The government meander of a lake is not a boundary .line, and the patent conveys to the actual shore line so as to include a peninsula that was cut off and left outside the meander.</p> <p>Adverse Possession — Presumptions. In the absence of proof, it will be presumed that possession was permissive and not adverse to the owners.</p> <p>Same — Color op Title — Description op Property. An instrument conveying “all interest and title” that the grantors “may have in the piece known as the point” in Lake S-, cannot operate as color of title since it does not sufficiently describe any property without the aid of parol evidence.</p> <p>Same — Hostile Possession. An entry is not shown to be hostile and the possession thereunder will therefore be presumed to be permissive, where there was no open assertion of hostile title and it appears that prior to taking possession, upon consultation with the owner, her son-in-law, the occupant was advised that she could live on the land as long as she wished and during the winters she spent a large part of her time with her daughter and son-in-law on the adjoining tract.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered June 9, 1917, 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 King county, Mackintosh, J., entered June 1, 1917, upon findings in favor of the plaintiff, in an action for divorce, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Pemberton, J., entered December 14, 1917, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Fraud — Means oe Knowledge — Evidence —• Sufficiency. The evidence does not sustain an action for deceit in a sale of an acre and a half of land, in regard to the location of a highway and ravine, where the vendee had purchased and spent two summers upon adjoining land, knew the location of the two tracts and was perfectly familiar with the surroundings, and the highway was slashed and plainly visible, and there was no evidence of misrepresentations as'to the ravine.</p> <p>Covenants — Warranty—Highway as “Incumbrance.” A public highway is not an incumbrance sustaining an action for breach of covenant of warranty.</p>

Appeal by plaintiff from a judgment of the superior court for King county, Konald, J., entered January 7, 1918, upon findings in favor of the plaintiff, in an action for services performed by a physician, tried to the court.

<p>Infants — Delinquency — Custody — Jurisdiction of Courts— Habeas Corpus. A superior court has power to commit a delinquent child to the custody of an institution without the county and still retain exclusive jurisdiction over the child; in view of Rem. Code, §§ 1987-1, 1987-2, and 1987-5, which makes a delinquent the ward of the superior court, and Id., §§ 1987-8 to 1987-10, conferring continuing jurisdiction upon a superior court to make any order for the custody and control of a delinquent minor necessary for its welfare; hence habeas corpus may issue from such court to inquire into the legality of such custody.</p>

, entered September 13, 1917, in favor of the plaintiff, upon sustaining a demurrer to the answer, in an action to recover franchise rentals due a city from a street railway company.

<p>Appeal from a judgment of the superior court for King county, Grilliam, J., entered May 25, 1917, upon a trial and conviction of murder in the first degree.</p>

<p>Criminal Law — Evidence—Confessions—Duress. An accused’s voluntary confession, deliberately signed, is not tainted with duress or coercion from the fact that when arrested he was taken before the mayor, who was a justice of the peace and attorney, and the deputy sheriff, the prosecuting attorney and others.</p> <p>Intoxicating Liquors — Offenses — Unlawful Possession — Evidence — Sufficiency. A conviction of the unlawful possession of whiskey is sustained, though accused testified it was found to be only colored water, where he obtained it from a drug store at the agreed price for whiskey, approximately the same amount of whiskey disappeared from the store, and the accused signed a confession that he got the whiskey.</p> <p>Criminal Law — Trial—Remarks by Court. In a prosecution for the illegal possession of whiskey, it is not prejudicial error for the judge to say that the court never ordered a witness not to tell the truth, when the prosecutor asked whether another implicated with the accused “came up on the stand, under the order of the court, and refused to tell the truth.”</p> <p>Same. Upon sustaining objection to improper evidence it is not error for the court to indicate or mark the boundary between testimony that is competent and that which is not.</p> <p>Same — Appeal—Harmless Error. In a prosecution for illegal possession of whiskey, it is harmless to instruct to convict if the liquors were by the accused purchased, “stole” or secured in any way, where it was admitted that what he had was stolen.</p> <p>Same — Trial—Instructions. In a prosecution for illegal possession .of whiskey, an instruction to consider statements of a witness not made on the witness stand only for the purpose of affecting his credibility is not error as calling attention to such witness, who had been tried and convicted for the same offense.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered June 9, 1917, upon a trial and conviction of violating the prohibition law.</p>

, entered September 15, 1917, upon the verdict of a jury-rendered in favor of the plaintiff, in an action on a fire insurance • policy.

<p>Indictment and Information — Sufficiency—Practicing Dentistry Without License. An information for practicing dentistry without a license, in the language of the statute, is sufficient without alleging the nature of the disease or lesion or the treatment.</p> <p>Physicians and Surgeons — Practicing Without License — Sufficiency. A conviction of practicing dentistry without a license is sustained where the accused had no license and admitted putting medicine on a patient’s gums because they were sore.</p> <p>Witnesses — Cross-Examination—Credibility. Where defendant, accused of practicing dentistry without a license, testified on cross-examination that he had never dope any dental work himself, it is proper as testing his credibility to ask if he had not done dental work for certain named persons.</p>

<p>Contracts — Building Contracts — Construction—“Roughing-in” Plumbing — Extras—Proof of Custom. Where the contractor furnished a list of the materials required for “roughing-in” the plumbing “the same being represented to include all the material necessary to be used in the plumbing” in accordance with the plans and specifications, further guaranteeing that no extras will be required to complete the building, it was not competent for the contractor to show a custom in the plumbing trade to make contracts with reference to “roughing-in” and the supplying of fixtures, so as to leave a hiatus between the “roughing-in” process and the setting of the fixtures, and make the owner liable for extra material for “finishing”; no such custom having been brought to the notice of the owner.</p> <p>Set-off and Counterclaim — Building Contracts — Payment for Material Agreed to be Furnished. Under a contract to do the plumbing and furnish all the materials required, at not to exceed a certain sum, an owner who paid for the materials which the contractor listed as necessary may counterclaim therefor against the balance due upon the contract.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered June 23, 1917, dismissing a prosecution for the violation of an ordinance, upon sustaining a demurrer to the complaint.</p>

, entered November 16, 1917, affirming an order of the public service commission authorizing the discontinuance of the sale of commutation tickets as provided for in a street railroad franchise ordinance.

, entered September 15, 1917, upon granting a nonsuit, dismissing an action for personal injuries sustained by an employee in loading a ship.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered November 26, 1917, upon sustaining a demurrer to the complaint, dismissing an action to foreclose delinquency certificates.</p>

<p>Appeal from an order of the superior court for King county, Albertson, J., entered January 31, 1917, granting a new trial, after the verdict of a jury rendered in favor of the plaintiff, in an action for damages.</p>

<p>Sales — Conditional Sales — Conteacts — Constbuction. A contract to take over a stock o£ merchandise constitutes a conditional sales contract, where the buyers agreed to purchase the stock at a future date and meanwhile in disposing of the stock and carrying on the business, to act as agents of the sellers, who were guaranteed against loss and were entitled to hold the buyers to payment of the full purchase price, whereupon the contract “shall then become a full, complete and executed bill of sale.”</p> <p>Sales — Conditional Sales- — Remedies —- Election. A provision in a conditional sales contract giving the vendors the right to take over the stock and apply the proceeds on the purchase price and maintain suit for the balance, is contrary to law and to Civ.- Code, S. D. § 1814, there being only a choice of remedies; and having elected to take the property, the vendors cannot recover the unpaid balance of the purchase price.</p>

<p>Street Railways — Accidents at Crossings — Automobiles—Contributory Negligence — Evidence — Sufficiency. The driver of an automobile, struck by a street car at a street intersection, was guilty of contributory negligence, notwithstanding he testified that he looked and did not see the street car, which was in full view, where he deliberately drove onto the tracks and had time to avoid the collision by stopping if he had taken notice of the street car.</p>

, entered September 14,1917, upon sustaining a demurrer to the petition, dismissing proceedings for the construction of a will.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered January 12,1918, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Tallman, J., entered March 21, 1917, upon findings in part favorable to the plaintiff, in an action to recover partnership funds, tried to the court. Reversed on plaintiff’s appeal.</p>

<p>Compromise and Settlement — Evidence—Sufficiency. The evidence sustains findings that a compromise and settlement was not binding where the written memorandum shows a misunderstanding and it appears that material misrepresentations were made and relied upon when the compromise was under discussion.</p> <p>Damages — Measure of Damages — Breach of Contract. The measure of damages for breach of a contract to install heating appliances in houses is the actual outlay of the owners made necessary by the failure of the heating system, which was inadequate for the purpose designed, rather than the depreciation in the value of the real property on account of the misrepresentations.</p>

, entered November 5, 1917, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action in tort.

<p>Sales — Conditional Sales — After-Acquired Property — Title— Subsequent Creditors. . A clause in a duly recorded conditional sales contract providing that after-acquired property of the vendee shall be added and become the property of the vendor subject to the sales contract, does not, as against subsequent creditors of the vendee, pass the title to property subsequently acquired by the vendee under another conditional sales contract, notwithstanding the last vendor lost the property by failing to record its bill of sale; since the title thereto never passed to the vendee, as against the last vendor or subsequent creditors, and the first vendor was neither- a subsequent purchaser, incumbrancer or creditor, within Rem. Code, § 3670.</p>

<p>Appeal — Statement oe Facts — Striking. A statement of facts, filed out of time without proper notice of application for extension of time, is properly struck out.</p> <p>Pleading — Bill oe Particulars — Copies in Possession oe Defendant. Defendant’s demand for- bill of particulars furnishing a copy Of by-laws and proof of death in possession of the defendant is properly refused.</p> <p>Insurance — Mutual Benefit Insurance — Pleading—Complaint. In an action upon a benefit certificate, the complaint is sufficient where it alleges its issuance, that it remained in full force until the death of the insured, that plaintiff was the beneficiary and had made due proofs and demanded payment, although it did not allege full compliance with all conditions.</p> <p>Appeal — Review—Pleadings—Amendments. After trial on the merits under a defective complaint, capable of amendment, all amendments will, on appeal, be considered as made, as required by Rem. Code, § 1752, which is a later statute and controls Id., § 263, providing that objection that the complaint fails to state a cause of action may be made at any time.</p> <p>,. 'Appeal — Presumptions—Pleadings—Discretion. The denial of á inoti,on to make a reply more definite and certain must be presumed to be without prejudice, in the absence of any showing of 'abuse of discretion, surprise, or anything preventing the presentation of a defense.</p>

<p>Appeal — Review—Findings. Findings upon conflicting evidence will be reversed where the evidence preponderates against them.</p> <p>Sales — -Evidence—Stjeeiciency. Upon conflicting evidence as to a conversation resulting in a sale of merchandise, the testimony of a witness that the sale was made to the defendant is sufiieiently corroborated by testimony that, on objecting to sell to another for want of credit, it was agreed to charge-the goods to defendant as an accommodation and to secure prompt shipment, and that they were shipped accordingly.</p>

<p>Corporations — Stockholders — Inspection op Books. A trade competitor of a corporation cannot, by acquiring a small amount of dormant stock, demand an inspection of the corporate books, minutes, and trade secrets, in the absence of any by-law on the subject of inspecting records; and it appearing that the demand was not in good faith and not in the best interests of the corporation, the inspection allowed will be confined to the book containing the names of the stockholders, according to Rem. Code, § 3701.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered March 10, 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 King county, Brawley, J., entered May 11, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered April 17, 1917, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.</p>

<p>Statutes — Repeal by Implication — Counties — Liabilities — Torts. Under the rule that repeals hy implication are not favored, the general statute, Rem. Code, § 951, giving a right of action against a county to a person injured hy some act or omission of the county, is not impliedly repealed hy Id., § 3987, defining the duties of the sheriff, and providing that the county is not responsible for the acts of the sheriff while engaged in his official duties as defined therein.</p> <p>Counties — Liabilities — Torts —Acts of Deputy Sheriff. A deputy sheriff, in charge of automobiles used by the sheriff’s office, is not, while testing an automobile, engaged in the performance of any official acts of the sheriff for which the county is not liable, under Rem. Code, § 3987; hence the county is liable for personal injuries caused through the negligent driving by such deputy.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered December 12,1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Application filed in the supreme court June 14,1918, for a writ of prohibition to prevent the superior court for King county, Sheets, J., from entering an order modifying a decree respecting the custody of a minor.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Hewen, J., entered July 9, 1917, upon the verdict of a jury awarding damages in condemnation proceedings.</p>

<p>Criminal Law — Evidence—Motive. Where there was abundant evidence to identify the accused as one of the parties committing an assault by firing a revolver at the prosecuting witness, it is not necessary to show a motive for the assault.</p>

<p>Appeal — Review-—Findings. Upon reviewing questions of fact, findings must fie sustained if supported 'by a preponderance of tfie evidence.</p>

<p>Appeal from a judgment of tbe superior court for King county, Gilliam, J., entered October 20, 1917, upon a trial and conviction of obtaining money by false pretenses.</p>

<p>Landlord and Tenant — Lease — Abrogation — Eviction — Damages. An agreement by a tenant, occupying part of a building, that a contractor might commence tearing down the building, and to vacate on a certain date, does not render the landlord or contract- or liable for damages as for an eviction, when an unanticipated rain damaged the tenant’s goods during the work.</p> <p>Same — Lease — Abrogation — Consideration. Under such an agreement where the landlord was preparing for the immediate erection of a new structure for lease to the occupants, and the contractor refused to proceed until all tenants agreed to vacate, the reciprocal surrender of rights constituted a sufficient consideration.</p> <p>Estoppel — Contracts. A tenant who agreed to abrogate a lease so that the building may be torn down, is estopped to assert want of consideration, after the contractor acted on his promise and had proceeded to take down the building.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered November 2, 1917, upon findings in favor of the defendant, in an action of replevin, tried to the court.</p>

<p>Appeal — Review—Findings. Findings upon conflicting evidence affected by tbe weight of tbe evidence and credibility of tbe witnesses will be sustained on appeal unless it can be said that tbe evidence preponderates tbe other way.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered December 15, 1917, upon a trial and conviction of violating the prohibition law.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered October 26, 1917, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered December 19,1917, in favor of the defendant, upon granting a nonsuit, in an action in tort, after a trial to a jury.

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered June 27, 1917, dismissing an action in equity, upon plaintiffs’ failure to prosecute.</p>

, entered December 29, 1917, upon findings in favor of intervening defendants, in proceedings to forfeit boats and other property used in unlawful fishing, after a trial to the court.

<p>Appeal — Record— Abstbacts — Dismissal. Under Rem. Code, § 1730-6, insufficiency of the abstract of the evidence is not ground for dismissing an appeal, hut only for motion to amend it.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 7, 1917, dismissing an action for personal injuries sustained by a servant, upon granting a nonsuit.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered September 11, 3917, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Insurance — Companies—-Stockholder’s Meetings — Proxy Voting —Limitations—Authority oe Trustees — Statutes. Under Rem. Code, § 6059-63, providing that the trustees of an insurance company may vote to- permit an officer of the corporation to vote proxies at the annual stockholders’ meeting, a resolution of the trustees permitting such voting, but limiting the authority to- special matters and attempting to designate the persons to be voted for as trustees, is a valid authority for proxy voting by an officer, but the attempted restrictions thereon are void as beyond the authority of the trustees, and contrary to public policy and the intent of the legislature.</p>

, entered December 7, 1917, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.

<p>Peincipal and Agent — Atjthobity of Agent — Evidence—Sufficiency. An assistant purser on a boat,' authorized to pay operating expenses from collections, had apparent authority to cash checks, having previously had such authority as purser, and the evidence warranting a finding that no sufficient notice of change of authority had been given.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered December 31, 1917, upon a trial and conviction of unlawfully selling morphine.</p>

<p>Appeal from a judgment of the superior court for Adams county, Truax, J., entered October 19, 1917, upon findings in favor of the plaintiffs, in an action to quiet title.</p>

<p>Appeal from an order of the superior court for Kit-sap county, French, J., entered October 2, 1917, appointing a receiver, after a hearing before the court.</p>

<p>Appeal from an order of the superior court for Chelan county, Grimshaw, J., entered July 2, 1917, granting a new trial, after verdict in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Truax, J., entered September 21, 1917, in favor of the defendants, on granting a nonsuit, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Benton county, Truax, J., entered September 17, 1917, upon findings in favor of the plaintiff, in an action for divorce, tried to the court.</p>

<p>Master and Servant — Relation — Personal Injuries — Automobiles — -Liability to Third Persons. The owners of an automobile are not liable for personal injuries to a pedestrian, struck when the car was driven by a son who had taken it for his own pleasure without permission and who was not a member of the family, and was not in any sense the agent or servant of his- parents; and it is immaterial that, in the course of his rounds, he had picked up and was conveying a minor brother who was a member of the family.</p>

Application filed in the supreme court June 24,1918, for a writ of mandate to the superior court for King county, Smith J., to compel a hearing.

, entered June 15, 1917, upon findings in favor of the defendants, in an action to recover over the amount of a judgment for personal injuries, after a trial on the merits to the court.

, entered December 13, 1917, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.

<p>Guaranty — Contractor’s Bond — Loan to Contractor — Consent of Surety — Liability. A letter from a contractor’s surety consenting to an assignment of bonds, to be held “as collateral security only for a loan” to the contractor, is not a guaranty of payment of the loan on failure of the security through default of the principal.</p> <p>Municipal Corporations — Public Improvements —i Contract. Where contractors for a street fill did not make part of the fill, which was done by a street railway company as required by its franchise, they are not entitled to pay therefor, under a contract which provided that the city engineer or board of public works shall have the right to eliminate any of the items called for in the contract, and such changes shall not constitute a claim for loss of anticipated profits.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Reynolds, J., entered October 17, 1917, dismissing an action on contract, on sustaining a demurrer to the complaint.</p>

, entered September 17, 3917, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained in a fall upon a defective street.

, entered August 4, 1917, upon findings in favor,of the defendants, in an action by a trustee to recover property belonging to the estate of a bankrupt.

<p>Application filed in the supreme court June 19, 1918, for a writ of mandate, to compel payment of funds into the state treasury.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered May 11, 1916, in favor of the plaintiff, upon sustaining a demurrer to the complaint, in an action for damages from change of grade.</p>

<p>Municipal Cobpobations — Okdinances—Liability to Violatoks— Nonenfoecement — Effect. The nonenforcement by the police of an ordinance against coasting on a street does not make the city liable for personal injuries sustained by one who was violating the ordinance; since administrative officers have no power to modify the legislative acts of the city council.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Davidson, J., entered July 17, 1917, in favor of the plaintiffs, in an action by creditors to set aside fraudulent conveyances.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered March 2, 1917, upon a trial and conviction of unlawful possession of intoxicating liquors.</p>

, entered June 11, 1917, upon findings in favor of the defendants, dismissing quo warranto proceedings against a drainage district, tried to the court.

, entered January 22, 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>Banks and Banking — Authority of Officers- — Deeds. A deed by a bank president and cashier who were principal stockholders, executed without special authority and acquiesced in by the directors, is within the apparent scope of their authority.</p> <p>Deeds — Validity—Fictitious Name. A deed taken in a fictitious name, with subsequent transfer in such name, passes title and the instruments are valid in the hands of an innocent holder.</p> <p>Mortgages- — -Failure to Record — -Loss. Where the failure to record a mortgage deed enables the title holders to convey under a fictitious name and mortgage to an innocent party, the loss must fall upon the negligent mortgagee.</p>

<p>Appeal from a judgment of the superior -court for Stevens county, Blake, J., entered August 29, 1917, decreeing rescission of contracts for the exchange of real and personal property, granting defendants a money judgment against plaintiffs, and refusing to award plaintiffs the return, or the value, of certain chattels disposed of hy defendants.</p>

H. Armitage, Judge pro tempore, entered September 26, 1917, upon findings in favor of defendants in an action to establish a trust in oil and gas leases, tried to the court.

<p>Landlord and Tenant — Lien on Cbop — Notice—Priority—Bona Fide Purchaser. A landlord’s lien upon crops for rent, under Rem. Code, § 1190a, applying the provisions of chapter 7 relating to liens upon logs, depends upon the filing of a lien notice prior to sale to a hona fide purchaser, notwithstanding the provision that the lien may he asserted within forty days after expiration of the term or each year of the lease; since the lien may he protected hy filing notice at any time.</p>

<p>Judgment — Res Judicata — Merger or Bar — Matters that Must be Determined. In an action for storage charges, defendants’ former suits for the recovery of goods stored and for damages for goods spoiled while in storage, in which there was no counterclaim or set-off for the storage charges, are not res judicata of the" subsequent action, since the issue for storage charges is not so closely related to the issues in the former actions as to require that it be determined therein.</p> <p>Same — Merger and Bar — Answer—Set-oee and Counterclaim Available in Former Action. Rem. Code, § 264, providing that the answer “must contain” (1) a general or specific denial; (2) any new matter constituting a defense or counterclaim, which counterclaim by Id., § 265, must he .one arising out of the contract or transaction set forth in the complaint or connected with the subject of the action, or, in actions on contract, any other cause arising on contract, is not mandatory in the sense of requiring the pleading of a counterclaim which is wholly unrelated to plaintiff’s claim; but the two subdivisions of § 264 present merely alternatives as to unrelated claims.</p>

<p>Appeal — Record—Affidavits. Affidavits on motion for a new trial cannot fie considered when not made a part of the statement of facts.</p> <p>Same — Record—Statement of Facts. • A statement of facts, certified to fie incomplete, and wfiicli is not indexed as required fiy Rule III, will fie struck out on motion.</p>

<p>Appeal — Decisions Appealable — Pinal Oedek of Couet. A judgment awarding attorney’s fees, upon an order of the court in the matter of the approval of a claim allowed hy county commissioners, after a hearing before the court on the merits, is appealable as a final order of the court.</p> <p>Attorney and Client — Compensation — Evidence — Sufficiency. Under a contract for reasonable compensation, attorneys are entitled to a fee of $3,000 for successfully representing a county in a suit to set aside invalid bonds in the sum of $125,000, requiring the exercise of legal skill and ability of a high order, three attorneys having testified that $2,500 to $3,500 would be a reasonable charge.</p>

<p>Appeal from a judgment of the superior court for ■King county, Ronald, J., entered November 23, 1917, ■upon an order granting a motion for judgment not'withstanding verdict, in an action for personal injuries.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered August 1,1917, in favor of defendants, in an action by an executrix .to fix the compensation of an attorney, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Mason county, Wright, J., entered January 9, 1918, in favor of the plaintiffs, in an action for a receiver of a partnership, tried to the court.</p>

<p>Trial — Motion for Judgment — New Ttial. Motions for judgment’ notwithstanding a verdict or for a new trial should not be granted: where reasonable minds might reach different conclusions upon the; evidence.</p> <p>Appeal — Review—Record. In the absence of the affidavits or other evidence used, the denial of a new trial for newly discovered' evidence cannot be reviewed on appeal.</p>

<p>Venue — Residence of Defendant — Right to Change — Codefendants. Where a change of venue to the county of the defendant’s residence, upon a showing that codefendants were joined merely for the purpose of retaining venue, was denied with leave to renew-the motion if at the trial no relief is claimed against the other defendants, defendant is entitled to the change of venue, after appeal and remand, where the codefendants had absconded or were insolvent and had been eliminated hy the judgment without the trial of any real issue, leaving the real controversy to he tried out against him as sole defendant.</p>

<p>Application filed in the supreme court July 23, 1918, to prohibit the superior court for King county from releasing on habeas corpus a person detained in quarantine by order of the boards of health of the city of Seattle and of the state of Washington.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered May 21, 1917, dismissing an action to enjoin the erection and maintenance of a mausoleum, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King’ county, Smith, J., entered November 16, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.</p>

<p>Appeal from a judgment of the superior court for Spokane county, McCroskey, J., entered November 23, 1917, upon findings in favor of the defendant, in an action by a guardian to recover property of an insane ward, tried to the court.</p>

<p>Principal and Surety — Alteration in Contract — Release oe Surety. A contractor’s surety is prejudiced, and therefore discharged from liability to the city, where the work was suspended for an indefinite time without notice to the surety, and the full contract price paid before the work was fully completed, contrary to the terms of the contract and bond.</p>

<p>Appeal — Statement of Pacts — Striking—Time foe Motion. A motion to strike a statement of facts and dismiss an appeal, not filed until the case was called for hearing, is too late.</p> <p>Conspiracy — Damages—Evidence—Sufficiency. An action for damages for conspiracy to injure plaintiff’s business is not sustained, where there was no evidence that plaintiff’s business was injured by the acts complained of, and it appears that the suit was not the result of any injury done, but plainly brought to annoy defendants.</p>

<p>Appeal from a judgment of tlie superior court for Pacific county, Hewen, J., entered November 7, 1917, upon findings in favor of tbe defendants, in an action to foreclose a mortgage, tried to tbe court.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered May 25, 1917, upon sustaining a demurrer to the complaint, dismissing an action on contract.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered July 3, 1917, upon findings in favor of the plaintiff, in an action on a promissory note, tried to the court.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Blake, J., entered December 13, 1917, upon findings in favor of the defendants, dismissing proceedings supplemental to execution, tried to the court.

<p>Appeals from a judgment of the superior court for Kitsap county, Frater, J., entered December 30, 1916, in favor of the defendants, in an action to quiet title, tried to the court.</p>

<p>Appeal from a judgment of tlie superior court for Kitsap county, French, J., entered January 24, 1917, upon the verdict of a jury rendered in favor of .the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hun eke, J., entered December 30, 1916, upon the verdict of a jury rendered in fayor of the defendants by direction of the court, in an action in replevin.</p>

<p>Constitutional Law — Due Process — Special Assessments — Review by Courts — Necessity. Tbe drainage district law, Rem. Code, §§ 4226-1 to 4226-41, does not violate the due process clauses of the state and Federal constitutions, in that it provides for special assessment without the medium of any review by the courts; due process being afforded when there is opportunity to be heard before the body which is to make the assessment.</p> <p>Drains — Assessment — Benefits. An assessment for a drain against railroad right of way cannot be sustained in a sum greater than that upon other property on the theory that, by drying up the country and protecting it from floods, it makes the roads in the vicinity more accessible and adds to the business of the railroad; since that is a general and not a special benefit; and a greater burden on one property than upon others requires some different or special benefit to such property.</p> <p>Same — Assessment—Benefits. An arbitrary drainage assessment of a railroad right of way in a disproportionate sum cannot be sustained because the property was benefited to the extent of the assessment, which was to be apportioned ratably and equitably.</p> <p>Fullerton, J., dissents.</p>

<p>Witnesses — Impeachment — Collateral Matter — Credibility— Corroboration. In a prosecution for murder, in which the whereabouts of a certain witness at a certain time was material and in direct conflict, the witness having denied upon cross-examination that she had then gone to her barber shop and had been spoken to by a policeman, her impeachment by the policeman in rebuttal is not upon a collateral matter and is proper upon the issuable circumstance and her credibility, and to sustain the credibility of witnesses contradicting her.</p> <p>Criminal Law — New Trial — Newly Discovered Evidence — Ma- ■ teriality. In a prosecution for murder, newly discovered evidence that an accessory had inquired the way to accused’s room at 3 o’clock on the morning of the murder, did not go to an issue of fact and is not ground for a new trial, where both the accessory and accused and another witness testified that he called at the room two hours earlier.</p> <p>Same — Appeal—Misconduct of Counsel. Error cannot be assigned upon improper argument of counsel where no objection w.as made at the time or opportunity given the court to correct the error.</p>

<p>Municipal Corporations- — Contracts for Street Lighting — Construction. A city cannot have the size of its lights reduced without consent of the company, under a contract for city lighting providing that the city shall establish the location and size of the lamps and that, when a lamp shall have been once established, it shall continue during the life of the contract, except that its position may be changed, and that new improved lamps shall be approximately the same wattage and cost as the one for which it is substituted; the intention being that the revenue of the company should not be reduced.</p>

, entered June 2, 1917, dismissing an action for personal injuries and denying a new trial, after a hearing before the court.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered December 18,1916, in favor of certain lien claimants, in an action in inter-pleader, tried to the court.</p>

<p>Appeal from an order of the superior court for Chelan county, Grimshaw, J., entered October 9, 1917, dismissing an appeal from a conviction in a police court, for want of diligence.</p>

<p>Appeal — Harmless Error — Not Affecting Result. Whether plaintiff split a single cause of action is immaterial, where on appeal it is decided that appellant was not liable on the second cause of action.</p> <p>Dead Bodies — Negligence—Damages—Mental Suffering. Since there can be no recovery for damages arising from mental anguish as a result of negligence when not accompanied by physical injury, there can be no recovery therefor against a cremation company for negligence in failing to keep and deliver the ashes of a child as provided in the parent’s contract for its cremation.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Crimshaw, J., entered October 5, Í.917, upon a trial and conviction of robbery.</p>

<p>Criminal Law — Rights of Accused — Meeting Witness — Trial. It is not error, in that accused did not meet tbe witnesses face to face, as required by Rem. Code, § 2306, that tbe stenographer read over the testimony of a witness for the benefit of a juror who fell asleep, and the accused was then given opportunity to ask the witness any questions whether previously covered or not.</p> <p>Larceny — Ownership of Property — Evidence—Incorporation of Company. In a prosecution for stealing a calf alleged to belong to the S. stock company, it is not material to prove that the company was incorporated, where it was shown to be dealing in stock; hence oral evidence of its incorporation is not prejudicial.</p> <p>Same — Evidence—Sufficiency. There is sufficient evidence to sustain a conviction of stealing a calf, where its head, hide, and feet were identified, and there was evidence that it was in the possession of the defendants, who sold it to a butcher.</p>

<p>Officers — Action on Bond — Leave to Sue — Pleading — Waiver. . Under Rem. Code, § 960, providing that, in an action on an official bond by a plaintiff other than the state, the defendant on motion shall be entitled to judgment of nonsuit if it does not appear from the complaint that leave to sue was first obtained, the objection is properly taken by demurrer, which answers the purpose of a motion, and is not waived by pleading over, after exceptions taken.</p>

, entered July 16, 1917, in favor of the defendants, dismissing an action to set aside deeds as in fraud of creditors, after a trial on the merits.

, entered December 18, 1917, upon granting a nonsuit, dismissing an action for personal injuries sustained by an employee in a mine.

, entered May 12, 1917, upon findings in favor of the defendants, in an action to enjoin the sale of property on execution, tried to the court.

Cross-appeals from a judgment of the superior court for Spokane county, C. C. Upton, judge pro tempore, entered July 9, 1917, upon findings in favor of the plaintiff, in an action of unlawful detainer, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered November 3, 1917, upon findings in favor of the defendant, dismissing an action for damages for fraud.</p>

<p>Corporations — Stock—Sale—Contract — Construction. Where plaintiff sold. 10,000 shares of capital stock to defendant, by contract providing that 3,000 shares were to belong to the buyer on payment of $2,500, and same was to be pledged to secure the performance of the buyer’s agreement to save the seller harmless from her indebtedness to the company on account of advancements of future dividends, and the balance, 7,000 shares, to be placed in escrow until paid for, and all except the 3,000 shares to be fully forfeited as liquidated damages in case of default in payments, it was not intended to require a payment of the advances made in any event, but only to save harmless therefrom if the contract be fully performed; and the contract having been forfeited by the seller as to the 7,000 shares for defaults, it carried its own measure of damages in the sums paid and forfeited, and the seller cannot recover anything in addition, the 7,000 shares being burdened for advances as if no contract had been made.</p>

<p>Appeal from an order of the superior court for Spo- N kane county, Oswald, J., entered October 18, 1917, adjudging tbe plaintiff to be in contempt of court and ordering tbe payment of alimony, after a bearing upon a show cause order.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Gilliam, J., entered November 12, 1917, upon findings in favor of the defendant, in an action for a broker’s commission, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered September 12,1917, in favor of the plaintiff, upon withdrawing the case from the jury, in an action for rent.</p>

, entered February 2, 1918, upon findings in favor of the defendant, in an action on an indemnity insurance policy, tried to the court.

<p>Carriers- — Of Goods — Refusal to Accept Goods — Liability. It was tbe duty of a carrier to accept the shipment and it is liable for refusal to do so, where, after a car of apples had been loaded, the carrier refused to accept the shipment pursuant to its tariff regulations, option No. 2, giving heater service and requiring the carrier to assume all liability for loss due to frost or heating, because a dispute arose as to whether the apples had been frost-bitten before loading, and the shipper then offered to indemnify the company against any claim for damages on that account, as it would in no event be liable therefor.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, Mitchell, J., entered June 16,1917, upon granting a nonsuit, dismissing an action to recover on local improvement warrants.</p>

<p>Appeal from a judgment of the superior court for Wahkiakum county, Hewen, J., entered June 23, 1917, 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 Grant county, Hill, J., entered October 23, 1917, upon the verdict of a jury rendered in favor of the defendants, in an action on a promissory note.</p>

, entered November 9, 1917, upon findings in favor of the defendant, dismissing an action on contract, tried to the court.

<p>Appeal from a judgment of the superior court for Franklin county, Truax, J., entered June 21,1917, upon sustaining’ demurrers to the complaint, dismissing an action to modify a judgment.</p>

, entered August 11,1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover dividends on corporate stock.

, entered December 17, 1917, in favor of the defendants, dismissing an.action for specific performance, tried to the court.

<p>Appeal from a judgment of the superior court for Grant county, Hill, J., entered September 25, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered June 20, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.

<p>Attoeney and Client ■ — ■ Compensation — Conteact — Evidence — ■ Sueeioiency. The signing and returning of a complaint to commence suit sufficiently shows acceptance of an offer to take the case on the contingent fee proposed by the attorneys.</p>

<p>Appeal from a judgment of the superior court for San Juan county, Brawley, J., entered October 4, 1916, upon findings in favor of the defendant, in an action for damages, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered November 17,1917, in favor of tbe plaintiff, upon overruling a demurrer to tbe complaint, in an action for an injunction.</p>

Appeals from judgments of the superior court for Stevens county, Truax, J., entered July 20, 1917, upon verdicts of a jury rendered in favor of the defendants, in consolidated actions on contract.

, entered November 21, 1916, in favor of the plaintiff, upon withdrawing the case from the consideration of the jury, in an action on promissory notes.

<p>Frauds, Statute oe— Broker’s Commissions — Contract to Pay eor Past Services. A written agreement that a certain sum was due for a broker’s commission in case of consummation of the, sale, entered into ten days after the sale, was, in effect, an agreement to pay for past services, and so is not within Rem. Code, § 5289, which requires a broker’s written contract for commissions to contain a description of the property to be sold.</p> <p>Pleading. A defense upon which the defendant refused to introduce any evidence must be considered as abandoned.</p> <p>Brokers — Contract—Construction—Time eor Payment. A contract for a broker’s commissions payable on or before a certain date, as follows: “one-half when a certain mortgage was sold,” which sale was within the control of the owner, requires payment by such date.</p>

<p>Appeal from a judgment of the superior court for Whatcom county, Pemberton, J., entered July 16,1917, upon findings in favor of the plaintiffs, in an action to enjoin the collection of an assessment for a permanent highway improvement, tried to the court.</p>

, entered October 11, 1917, upon the verdicts of a jury rendered in favor of the plaintiffs, in consolidated actions for rescission.

<p>Appeal from an order of the superior court for Snohomish county, Bell, J., entered October 24, 1917, modifying a divorce decree.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered June 29, 1917, 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 Walla Walla county, Mills, J., entered July 24, 1917, refusing probate of a will, after a hearing to the court.</p>

Hendron, Judge pro tempore, entered June 22, 1917, dismissing on the merits, an action for equitable relief, tried to the court.

'Application filed in the supreme court July 23, 1918, for a writ of certiorari to review the action of the superior court for King county, Jurey, J., in denying the petition of the relator for release on habeas corpus.

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered October 5, 1917, upon a trial and conviction of robbery.</p>

, entered January 18, 1917, upon findings in favor of the defendant, in an action to establish a claim against the estate of a decedent, tried to the court.