Volume 105 — Washington Reports

<p>Appeal from a judgment of the superior court for Spokane county, Carey, J., entered February 27, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for fraud.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered February 8, 1918, upon a trial and conviction of rape.</p>

<p>Corporations (141)—Powers-—Legality oe Business—Practice oe Law. A “Merchants Protective Corporation” ostensibly organized to “collect accounts” due its members, hut whose sole operation is to solicit legal business for attorneys through the issuance of membership cards which directly challenge its articles and engage, in consideration of a fee, to attend to certain legal business of its members free of charge, is engaged in the practice of law, which is not open to a commercial corporation, and has no right to do business in this state or legal excuse for existence.</p>

<p>Taxation (2)—Power of State — Indians (10-1)—Personal Property. Sheep and their increase, purchased with the proceeds of stock and its increase issued by the United States Government 'to an Indian upon a reservation as a ward of the government, are not subject to taxation; as the Indian is a ward of the government, which does not part with title by the issuance of property to him.</p> <p>Same. The fact that' money was borrowed to care for the sheep, or that the owner had prospered and was an officer in a bank, does not discredit his direct evidence that no stock was ever purchased except with proceeds of issued property and its increase, or make him any the less a ward of the government.</p>

<p>Master and Servant (55, 155)—Injuries—Operation of Railroads—Imputed Negligence—Contributory Negligence. Negligence cannot be imputed in the sending of a brakeman hack to protect the rear of a train from the fact that trains were expected from both directions; and the statement to him that the west-bound train might be the first to arrive did not warrant him in failing to protect himself against trains coming from the other direction.</p> <p>Same (192)—Injuries—Evidence—Cause of Death—Conjecture. No recovery can be had for the death of a brakeman, sent back to protect the rear of a train, trains being expected from both directions, where there was no eyewitness to the accident and the cause of the death was left entirely to speculation and conjecture.</p>

<p>Cancellation of Instruments (2)—Failure of Consideration. A conveyance by an aged couple to a daughter in consideration of life support, fully performed on the part of the daughter, should not be cancelled for dissatisfaction on the part of one of the grantors because the daughter, through a mistake, instituted insanity charges against her mother; especially where such act was not wilfully and purposely wrong, and extensive improvements had been made on the property for the convenience of the grantors.</p>

<p>Taxation (153, 209)—Fobeclosube—Summons by Publication— Evidence to Set Aside. In an action to set aside tax deeds, the evidence shows that plaintiff in a tax foreclosure used due diligence and was unable to locate the owner for personal service before resorting to service by publication, where it appears.that diligent inquiry was prosecuted without success and that the owner had left the city without leaving any address.</p> <p>Same (163)—Tax Title—Conclusiveness—Burden of Proof. The burden is upon the owner who asserts the invalidity of a tax title to overcome the deed by competent and controlling evidence.</p> <p>Same (151-154)-—Foreclosure—Notice to Owner. The owner of property is chargeable with knowledge of the delinquency of taxes and of every step in the tax foreclosure.</p>

, entered May 22, 1917, upon findings in favor of the defendant, dismissing an action for equitable relief, tried to the court.

Motion to recall a remittitur, filed in the supreme court July 11, 1918, or for leave to apply below for relief from a judgment.

<p>Application filed in the supreme court July 17, 1918, for a writ of mandate to compel the superior court for Spokane county, Webster, J., to vacate an order restraining the issuance of an execution on a judgment of the supreme court.</p>

<p>Appeal from an order of the superior court for Franklin county, Truax, J., entered March 5, 1918, denying a motion for an order to amend a sheriff’s return of sale on execution, after a hearing before the court.</p>

<p>Municipal Corporations (158) —Schools and School Districts (28)—Contractor’s Bonds — Persons Secured — Supplies. A bond given by a contractor in compliance with Rem. Code, § 1159, to secure all persons furnishing provisions and supplies for carrying on the work of constructing a heating plant in a schoolhouse, covers sums due for sheet metal furnished in good faith to a subcontractor to be used in the building, although, due to the fault of the subcontractor, all of it was not used in the construction of the plant.</p> <p>Same—Liability. Liability attaches in such case, although the sheet metal was not delivered at or near the school building, where the delivery was made at the shop of the subcontractor, it being necessary to there prepare it for use on the job, and the work of preparing it was being actually done there.</p>

<p>Vendob and Purchaser (125)—Bona Fide Purchaser—Notice— Records—Index. An index of tbe record of a deed giving tbe description as parts of lots 5 and 6, is a sufficient compliance with Rem. Code, § 8787, to put a purchaser upon inquiry as to a building restriction in the deed against adjoining property in lot six, granting an easement in eight feet along the common boundary.</p> <p>Same (124)—Notice—Records in Chain oe Title. A deed conveying part of a lot and granting an easement in the remainder, is within the chain of title to the remainder, so as to import notice to subsequent purchasers of the remainder, even though executed by only one of two tenants in common.</p> <p>Easements (10)—Express Grants—Construction. A deed covenanting that the grantor will not build upon adjoining property closer than eight feet to the south line of the property conveyed, so that there shall be sixteen feet between the buildings, grants an easement in the north eight feet of the adjoining land.</p> <p>Tenants in Common (1-1)—Severance—Grants by One Tenant. A conveyance by one of two tenants in common of part of the common property is valid as a transfer of the grantor’s interest, entitling the grantee to equities therein against the nongranting tenant in case of a partition.</p> <p>■Same (1-1)—Coneikmation. Where one of two tenants in common conveys part of the common property, together with an easement in the remainder, pursuant to an oral agreement with his cotenant, a subsequent quitclaim deed by both cotenants of the remainder is a confirmation of the previous oral agreement and a recognition of the easement, avoiding the necessity of a formal partition between the cotenants.</p> <p>Vendor and Purchaser (126)—Bona Fide Purchaser—Notice by Record. Where one of two cotenants conveyed part of the common property with building restrictions and subsequently both eotenants conveyed the remainder by quitclaim, their acts and acquiescence amounting to a partition, one claiming by warranty deed through the quitclaim grantee, with notice by record of the previous conveyance, takes with notice of, and is bound by, the building restrictions.</p> <p>Same (126). In such casé, the fact that the quitclaim of the remainder may have been in satisfaction of the mortgage upon the remainder, prior in time to the conveyance, does not give the quitclaim grantee the right to question the validity of the building restrictions; since the mortgage title was not perfected.</p>

<p>Attachment (33)—Dissolution—Gbounds—Motion. A motion to discharge an attachment on the ground that it was “improperly or irregularly issued,” as authorized hy Rem. Code, § 674, is sufficient where it was supported by affidavits traversing the plaintiff’s allegations of attachment.</p> <p>Same (39-1)-—Dissolution-—Effect of Affidavits. It is not error to discharge an attachment where the affidavit therefor traversed every material allegation of the plaintiff tending to support the attachment, without equivocation or evasion.</p>

<p>Mandamus (33-36)-—To Officers—Controlling Discretion. A plain case is required before the prosecuting attorney will be required to file an information in quo warranto to test the validity of the incorporation of a town.</p> <p>Municipal Corporations (8)—Incorporation—Determination of Inhabitants—Conclusiveness. Under Rem. Code, § 7435, giving the county commissioners the power to ascertain and determine the number of inhabitants within the boundaries of a proposed town, their decision is conclusive, unless reviewed under the appeal statute, Id., § 3909.</p> <p>Same (4)—Territory Included—Unplatted Lands. Under Rem. Code, § 7481, providing that no more than 20 acres of unplatted land belonging to one person may be included within the corporate limits of a town of the fourth class, the inclusion of 20 acres and the exclusion of 22.15 acres of one owner is proper.</p> <p>Same (4). Although platted for agricultural or garden purposes, lands may be included within the corporate limits of a town as platted land, where they were surveyed and subdivided into small tracts, designated by lot numbers, with streets named.</p> <p>Taxation (6)—Uniformity — Exclusion From Incorporated Town. The exclusion from the corporate limits of a town of a portion of the owner’s agricultural lands is not a violation of the constitutional provision of uniformity of taxation; since the same cannot be taxed for municipal purposes.</p> <p>Municipal Corporations (8)—Incorporation—Validity. Where the county commissioners had jurisdiction of the incorporation of a town, and did not act in excess thereof, the questions decided by them are reviewable only on appeal.</p>

, entered December 18, 1917, upon findings in favor of the defendant, quashing service of process upon a foreign corporation, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Chelan county, Hill, J., entered January 10, 1918, in favor of the defendants, dismissing an action for equitable relief, tried to the court.</p>

<p>Deeds (17)—Delivery — Escrow — Control. Sufficient delivery of a deed is not shown by placing it in escrow with a third party, if it was still in the control of the grantor and there was no present intention to part with title.</p> <p>Same (17-1)—Deposit tor Delivery on Death—Mutual Deeds. Since simultaneous deeds of community property by husband and wife to each other, placed in escrow to be delivered to the survivor on the death of either, take effect presently, if at all, and since they negative one another, there can be no effective delivery.</p> <p>Husband and Wipe (63)-—Community Property—Conveyances Between—Mutual Deeds—-Statutes. Simultaneous deeds of community property by husband and wife, placed in escrow, the one to be delivered to the survivor and the other to be null and void or recalled upon the death of the other spouse, do not, under a liberal construction of the code, constitute an agreement concerning the disposition of the community property, within Rem. Code, § 5919, which authorizes the making of such a contract jointly, and provides for the manner of its execution and defines its effect; the statute being exclusive in the absence of any common law right to make such a contract.</p>

<p>Appeal from a judgment of the superior court for King county, Abel, J., entered April 24, 1918, upon a trial and conviction of failing to report and pay a tax on fish frozen by the accused.</p>

<p>Master and Servant (17)—Action for Wages—Evidence—Sufficiency. A verdict allowing $45 per month for services is not excessive, the question being for the jury, where plaintiff worked as a cook and farm hand, the going wages for which were from $25 to $45 per month, and also worked long hours and performed other duties requiring more skill.</p> <p>Work and Labor (4, 14)—Services Between Persons in Family Relation—Evidence—Sufficiency. A finding of an express contract of employment of a son and brother-in-law to work on a farm as cook and farm hand is sustained by evidence that he performed the labor under the understanding that defendants intended to pay him satisfactory wages.</p> <p>Same (11)—Pleading—Issues, Proof and Variance. In an action for wages for services performed on a farm by a son and brother-in-law, evidence of talk of payment by deeding an interest in the farm is unavailing where it was not affirmatively pleaded in the answer.</p> <p>Trial (83, 100)—Instructions—Request. The designation of instructions as requested by either party, while not commendable, is not error, although commented on by counsel, where the jury was instructed to consider the instructions as a whole, and were not unduly influenced.</p> <p>Trial (17)—Reception of Evidence—Matters Not Controverted. It is not error to exclude evidence upon an issue which was admitted in open court and not denied by answer.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered May 21, 1918, 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 Lewis county, Beynolds, J., entered April 27, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Davidson, J., entered July 30, 1918, upon sustaining a demurrer to the complaint, dismissing an action to cancel a tax.</p>

, entered April 22, 1918, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for conversion.

<p>Appeal from a judgment of the superior court for Ferry county, Neal, J., entered February 21, 1918, upon a trial and conviction of grand larceny.</p>

<p>Religious Societies' (5)—Control—Actions—Injunction. A temporary injunction, pending determination of the merits of an action between rival church factions, is properly granted where plaintiff trustees were in possession and conducting the business of the church much as had been done, and restraint was necessary to prevent loss of corporate functions and property.</p>

<p>Appeal from a judgment of the superior court for Jefferson county, Pemberton, J., entered September 13, 1917, upon a trial and conviction of violating the state prohibition law.</p>

<p>Appeal from a judgment of the superior court for Pend Oreille county, Carey, J., entered January 19, 1918, upon a trial and conviction of murder.</p>

<p>Appeal (48)—Decisions Reviewable—Finality—Election Between Causes. An order requiring plaintiff to elect between two causes of action, separately stated, is not appealable, since it does not determine the action or prevent final judgment, and may be reviewed after final judgment, either upon a dismissal of the cause not tried embodied in the final judgment; or under Rem. Code, •§ 1716, subd. 2, authorizing the review of any order made in the ■same action on appeal from a final judgment.</p>

Application filed in the supreme court December 2, 1918, for a writ of mandate to compel the superior court for Clarke county, Back, J., to dismiss an action.

<p>Criminal Law (434)—Appeal—Review—Discretion—Change of Venue. The denial of a motion for change of venue on the ground of local prejudice will not be disturbed in the absence of an abuse of discretion, notwithstanding the accused was compelled to go to trial with two jurors who had made affidavits in resistance of the motion for change of venue.</p> <p>Perjury (4)—Information-—-Materiality of Evidence. An information for perjury sufficiently charges the materiality of the testimony, within Rem. Code, § 2351, defining perjury, even if insufficient at common law, where it alleges that accused wilfully testified falsely “to the following material facts in the case,” setting forth the testimony; in view of Rem. Code, §§2065, 2066, providing for charging a crime in ordinary language, and that no information shall be deemed insufficient when it clearly indicates the offense and the person charged.</p> <p>Criminal Law (385)—Appeal—Objections to Information. Matters going to the definiteness or certainty of a charge which might have been cured by amendment cannot be raised for the first time on appeal.</p> <p>Same (316)—Trial—Instructions Already Given. It is not error to refuse requested instructions that are covered in the general charge.</p> <p>Perjury (7)—Instructions—Materiality of Evidence. In a prosecution for perjury the determination of the materiality of the evidence is not left to the jury by the giving of an instruction that the jury must find that all material allegations of the information have been proven beyond a reasonable doubt, where the jury were told that the matters charged in the information were all material matters in the case in question.</p> <p>Same (7)—Instructions—Corroboration. In a prosecution for perjury, an instruction upon the subject of corroboration of the defendant is not called for, where the testimony was admitted and the claim made that it was given under an honest mistake.</p> <p>Same (6)—Evidence—Sufficiency. In a prosecution for perjury, where the only issue was as to whether defendant was honestly mistaken, a conviction is sustained, where the authenticity of corroborating evidence as to dates offered by the defendant was successfully challenged by the state.</p>

<p>Railroads (66)—Accidents at Crossings—Contributory Negligence—Duty to Look and Listen. Plaintiff was not guilty of contributory negligence, as a matter of law, in driving an automobile upon a country railroad crossing, upon a dark nigbt, when he was struck by a locomotive running rapidly backwards without the usual headlight or any warning signals, where he looked before driving on the crossing for an approaching train, and saw none; the negligence of the company being largely responsible for his conduct.</p>

<p>Criminal Law (193)—Continuance—Absence of Witness. It is not error to refuse a continuance because of the absence of a witness wanted for the purpose of impeaching a prospective witness for the state who was not called to testify.</p> <p>Same (236-2)—Opening Statement—Irrelevant Testimony. It is not error to exclude the opening statement of counsel and evidence offered as to the impeachment of a prospective witness for the state who was not called to testify, as the evidence became irrelevant.</p> <p>Rape (17)—Evidence—Credibility of Prosecutrix. In a prosecution for statutory rape of one under the age of consent, it is improper to ask the prosecuting witness whether any one had ever hugged or kissed her before, as it did not imply unchastity, even if that could be shown to affect her credibility.</p> <p>Criminal Law (313)—Trial—Instructions. Error in an instruction will not be considered on appeal, where appellant fails to indicate wherein it is faulty and did not propose a better one.</p>

<p>Parties (43, 44)—Method of Bringing in New Parties—Citation. In receivership proceedings, upon petition for an accounting and to discharge the receiver, parties other than the receiver cannot be cited to show cause on ten days’ notice why they should not be brought in as parties defendants, as such substitute for summons would ignore the statute, Rem. Code, § 229.</p> <p>Receivers (75, 8ft)-—-Actions—Remedies Against Receiver in Receivership. Upon charges of fraud and collusion in the appointment of a receiver, challenging the validity of the receivership and all the orders made therein, involving others not parties, it is discretionary with the trial court to refuse to entertain a petition in the receivership and to relegate the petitioner to an independent action.</p> <p>Parties (37)-—New Parties—Time for Intervention. A petition charging fraud and collusion in a receivership and seeking to bring in new parties is too late as a petition for intervention, when it was not filed until three years after appointment of the receiver and final judgment on plaintiff’s claim.</p>

<p>Wills-—Construction—Payment of Debts. A testator charges the payment of all debts, separate and community, upon his half of the community property, notwithstanding Rem. Code, § 1342, making each share liable therefor, and the wife takes her half freed therefrom as against other legatees, where, by the first paragraph', he directed his executors, as soon as they have sufficient funds, “belonging to my estate,” to pay the funeral and administration expenses and all debts properly chargeable against his estate, and by the next paragraph willed to his wife her half of the community property, which, by Rem. Code, § 5917, he had no authority to will.</p>

, entered December 24, 1917, upon findings in favor of the defendant, in an action on promissory notes, tried to the court.

<p>Appeal from a judgment of the superior court fo'r Thurston county, Wright, J., entered October 1, 1917, in favor of the defendants, dismissing an action to recover taxes paid and for an injunction, tried to the court.</p>

<p>Theaters and Shows (2)—Baseball Exhibition—Negligence— Evidence—Sueeiciency. Evidence by defendant to the effect that a grand stand at a baseball park was screened from foul balls for sixty feet on each side of the center, in accordance with plans for the structure, raises an implication or admission of negligence in failing to protect spectators by screens for more than thirty feet on each side of the center.</p> <p>Same (2) — Contributory Negligence — Question eob Jury. Whether a spectator at a ball game, struck by a foul ball, was guilty of contributory negligence or assumed the risk, in taking a seat in the grand stand unprotected by screens when there were vacant seats so protected, involves the question whether he acted as a reasonably prudent person in relying on the implied representation that his seat was reasonably safe, and is for the jury (Overruled on rehearing).</p> <p>Evidence (199-1)—Opinion Evidence—Due Care—Conclusions. In an action for injuries sustained by a spectator struck by a foul ball at a baseball game, a witness who was an authority on the game and familiar with the situation may not be asked whether there was sufficient screening of the grand stand for the protection of the spectators, as it calls for a conclusion to be drawn only by the jury.</p> <p>• On Rehearing En Banc.</p> <p>Theaters and Shows (2)—Contributory Negligence—Assumption oe Risks. A spectator, at a ball game, struck by a foul ball, who voluntarily took and retained a seat in the unscreened section of the grand stand when there were a great number of vacant seats protected by screens'that he might have chosen, assumes the risks or is guilty of contributory negligence precluding any recovery (Mitchell, Tolman, and Main, JJ., dissenting).</p>

<p>Appeal from a judgment of the superior court for Adams county, Holden, J., entered December 8, 1917, approving an executor’s final account and distributing property of an estate, after a hearing upon objections before the court.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered October 23, 1917, upon a trial and conviction of violating the prohibition law.</p>

, entered February 6, 1918, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained in a collision between an automobile and a street car.

, entered April 21, 1917, upon the verdict of a jury rendered in favor of the defendant, in an action for wrongful death.

, entered February 7, 1918, upon granting a nonsuit, dismissing an action for personal injuries sustained while using a telephone.

<p>Elections (56)—Contests — Jurisdiction—“Precincts”—Diking District. A diking district is not a “precinct,” within Rem. Code, § 4941, authorizing contests of elections for all county and precinct officers, in view of the diking law, Id., §§ 4091 to 4136, making a diking district an organized public entity, distinct from and free from all control by the county; and in the absence of express statutory authority the courts have no jurisdiction of a contest of an election for commissioners of a diking district.</p>

<p>Appeal from a judgment of the superior court for Mason county, Mitchell, J., entered March 4, 1918, in favor of the defendants, in an action of ejectment and for damages, tried to the court.</p>

- Appeal from a judgment of the superior court for King county, Hall, J., entered January 9, 1918, upon findings in favor of the plaintiff, in an action on a fire insurance policy, tried to the court.

<p>Appeal from a judgment of the superior court for Whatcom county, Hardin, J., entered April 3, 1918, upon findings in favor of the defendants, in an action to determine the validity of claims against a contractor’s bond, tried to the court.</p>

<p>Banks and Banking (3)—Stockholder’s Liability—Assessment of Stock—Power of Examinee. Under Rem. Code, § 3327, of the hanking act, which provides that the state bank examiner may if necessary to pay debts, enforce the individual liability of stockholders, the bank examiner has authority to determine the necessity and amount of an assessment upon stockholders of an insolvent bank without resorting to a judicial inquiry.</p> <p>Same. The same would be true of the act of 1917, p. 290, § 35, which gives the state bank examiner power to enforce the stockholder’s liability as soon after taking possession as in his judgment may be necessary and making the failure of the stockholders to make good any impairment of the assets conclusive evidence that the double liability is necessary.</p> <p>Same. Laws of 1917, p. 290, § 35, relating to the authority to enforce the statutory liability of bank stockholders bears upon the remedy only, and is accordingly applicable to an assessment upon a bank in liquidation under the act of 1915.</p> <p>Same (3)—Constitutional Law (42)—Executive Powers—Encroachment on Judiciary—Bank Examiner. Conferring authority upon the state bank examiner to make and enforce an assessment upon the stockholders of an insolvent bank is not objectionable as conferring judicial power upon a ministerial officer.</p>

<p>Mortgages (109, 110)—Merger of Tithes—Intention—Express Agreement. A second mortgage, assigned to an investment company, is not merged by a quitclaim deed to the assignee with an agreement to reconvey, the deed being given to secure advances for taxes, where that was not the intention, there being an express agreement that the mortgage remain in force and payments made thereon.</p> <p>Same (57)—Bona Fide Holder—Preexisting Debt. Where a subsequent mortgage was taken for a pre-existing debt, the mortgagee is not a holder for value as against a prior mortgage supposed by him to be released.</p>

<p>Wills (7) —Testamentary Capacity — Evidence — Sueeiciency. Want of testamentary capacity to execute a will is not shown, as against the positive testimony of the subscribing witnesses, by the evidence of one witness tending to show incompetency prior to the day on which the will was executed, such witness testifying that he was rational on that day.</p>

<p>Cross-appeals from a judgment of the superior court for Thurston county, Wright, J., entered June 7, 1918, favorable to the plaintiff, in an action to enjoin the collection of premiums under the workmen’s compensation act, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered March 30, 1918, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Master and Servant (54, 57)—Injuries—Methods of Work— Signals—Loading Cars—Negligence of Fellow Servants. Under the Federal Employers’ Liability act, it is actionable negligence upon the part of fellow servants, engaged in loading rails by pushing them up skids, for part of the crew at one end to disregard signals and fail to wait for the final signal calling for concerted action, whereby, through their hasty action, the other end slipped back and injured a member of the crew.</p> <p>Same (20-2)—Injury—Federal Liability Act—Fellow Sert vants—Statutes. The effect of section 1 of the Federal Employers’ Liability act (U. S. Comp. St., § 8657) is to abolish the doctrine of nonliability for the negligence of fellow servants engaged in interstate commerce and to put negligence on the part of fellow servants on a par with negligence of the master; and this, regardless of the other sections of the act relating to contributory negligence and assumption of risks; since a servant does not assume the risks of negligence of a fellow servant where the act was not habitual or usual.</p>

<p>Vendo» and Purchase» (60, 61, 73)-—Rescission by Vendo»— Fraud. Defendants may rescind the entire sale as a single transaction, where they were induced to sell by means of artifice and misrepresentation, and then, while dealings were in progress for the purpose of correcting misdescriptions, cancelled a mortgage and accepted another on worthless security; and it is immaterial that they were guilty of stupidity and dealt at arm’s length, where they were imposed upon and lulled into a state of undue carelessness by artifice and the transaction was violative of good conscience.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered January 22, 1918, upon findings in favor of the plaintiffs, in consolidated actions for damages for fraud, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered May 31, 1918, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Divorce (12)—Condonation—Acts Constituting. The fact of living with her husband until she brought suit for divorce does not operate as a condonation of conduct amounting to cruelty which consisted of a series of acts and continued course of conduct.</p> <p>Same (80)—Division op Property. An allowance to the wife of $1,000, and the household furniture valued at $750, and a home valued at $5,500, in trust for the benefit of a minor child, is not an unfair division, where the balance of the property, worth at least $6,000, was awarded to the husband, even though it was largely separate property.</p>

<p>Appeal (173)—Time for Taking — Motion fob New Trial. A motion for new trial suspends the effect of the judgment and time for taking an appeal cannot be curtailed by entry of a nunc pro tunc order denying the new trial.</p> <p>Physicians and Surgeons (10-1, 11)—Negligence—Evidence— Sufficiency. A recovery for negligence in doing dental work is sustained by evidence that the work was to be done to plaintiff’s satisfaction, there was some evidence of negligent work, and he refused to correct it upon complaints made.</p> <p>Same (12)—Negligence—Instructions. In an action for malpractice by a dentist, in which the patient later contracted blood poisoning not attributable to the teeth, an instruction is favorable to the defendant where it charges that, if the plaintiff was suffering from a diseased condition which the injury aggravated, he was entitled to recover all damages actually flowing from the injury, except such as must have followed in case the defendant’s negligence had not intervened.</p> <p>Same (130—Negligence—Measpre of Damages. In an action for malpractice by a dentist, the measure of damages is actual compensation for loss and suffering caused by the negligent performance of the work, and not recovery of the expense of replacing it.</p>

<p>Certiorari (5)—When Lies—Appeai. Certiorari does not lie to review an order dissolving a temporary injunction, in the absence of a finding of insolvency, since in such case the order is not appeal-able.</p>

<p>Motion filed in the supreme court October 19, 1918, to quash a citation to show cause why defendants should not be punished for contempt for violation of an order of the supreme court.</p>

<p>Appeal from a judgment of the superior court for Asotin county, Miller, J., entered November 14, 1917, upon a trial and conviction of grand larceny.</p>

, entered January 22, 1918, in favor of tbe defendants, dismissing an action to enjoin tbe diversion of waters used for irrigation purposes, tried to tbe court.

<p>Principal and Surety (13-1)—Liability oe Surety—Supplies. A bond conditioned for tbe performance of a logging contract and tbe repayment of all sums advanced by tbe obligee to tbe principal for labor and lien claims, does not permit recovery for “supplies” furnished by tbe obligee to tbe principal, since that was beyond tbe contemplation of tbe bond.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered January 28, 1918, upon findings in favor of the plaintiff, in an action in tort,, tried to the court.</p>

<p>Appeal (465)—Review—Harmless Error—Instructions—Cuke by Verdict. In an action brought for wrongful death under the Federal liability act, an instruction that contributory negligence would be a defense is harmless error, where there was no evidence of negligence to sustain any verdict for the plaintiff and the jury found for the defendant.</p> <p>Master and Servant (55)—Negligence—Operation of Railroads—Lookout—Evidence—Sufficiency. In an action under the Federal liability act for the wrongful death of an employee, struck by a train pulling into a station, there was no evidence of negligence in the failure of the train crew to keep a lookout for the deceased, where the undisputed testimony shows that the engineer on the train kept a lookout except for two or three times when he pulled his head into the cab because of snow flurries, and the fireman had his head out of the cab all of the time and kept a constant lookout; especially where there was nothing to indicate that failure to keep a lookout was the proximate cause of the death.</p>

, entered December 27, 1917, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a benefit certificate.

<p>Specific Performance (20)—Defenses — Fratjix Specific performance of a contract for the sale of a stock of goods to an undisclosed principal will not be decreed where it was induced by false representations that one C. was not the undisclosed principal, and the contract was executory to the extent that the purchaser was to participate in making an invoice, and C. was a competitor to whom the vendor would not sell.</p>

<p>Trial (29)-—Reception of Evidence—Rebuttal. Where the plaintiff’s evidence in chief showed good workmanship in the manufacture of tanks for the defendant, and defendant’s evidence showed they were leaky, it is proper rebuttal for the plaintiffs to show an admission by the defendant’s plumber that he had caused the leakage.</p> <p>Evidence (52, 93)—Statements of Agent—-Res Gestae. Upon an issue as to the cause for the leakage of gasoline tanks manufactured by the plaintiffs for' the defendant, evidence that defendant’s plumber, while engaged in connecting up the tanks, stated that he had broken a lug and obtained materials for stopping the leak is admissible as a declaration by an agent within the scope of his employment, and also as* part of the res gestae.</p> <p>Sales (127, 128)—Action for, Price—Defenses—Set-off—Defects. Where gasoline tanks manufactured for defendant had a substantial value, and are retained by the defendant without giving plaintiffs an opportunity to repair or remove them, he cannot defend an action for the price on the ground of defective workmanship, but must pay the price with the understanding that plaintiffs would be liable for damages for breach of warranty if they were not fit for the use for which they were made.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 31,1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for eviction.</p>

<p>Frauds, Statute of (37)—Sale of Goods—Memorándum—Sufficiency. A memorandum showing the date, name and address of the purchaser and the statement of goods sold with the agreed price, is a sufficient compliance with the statute of frauds, although all the details are not stated and the complaint alleges an agreement partly oral and partly written.</p> <p>Appeal (389)—Review—Amendments. Under Rem. Code, §1752, requiring disregard of technicalities and amendments considered as made, defects in a complaint capable of amendment are not material when the cause was tried as if upon a sufficient complaint.</p> <p>Frauds, Statute of (38)—Sale of Goods—Memorandum—Signature. Rem. Code, § 5290, requiring a note or memorandum of a sale of goods exceeding fifty dollars to be “signed by the party to be charged thereby” is satisfied where it is signed by and may be enforced against the seller, although not signed by the purchaser.</p> <p>Same (38)—Sale of Goods. The use, by the seller of flour, of a blank form, with its name printed at the top, .filled out by its authorized agent showing the terms of the contract of sale, is a sufficient “signing” of the contract by the seller to satisfy the statute of frauds.</p> <p>Same (37)—Hale of Goods — Memorandum — Sufficiency. A memorandum of a sale of flour setting forth the purchaser and seller, the quantity and character of the goods, the price therefor and the date of sale, shows a complete contract and satisfies the statute of frauds, although time and place of delivery were not given.</p> <p>Sales (34, 35)—Delivery—Time and Place. Where the time and place of delivery of goods sold are not specified there is a presumption of a reasonable time; and both parties doing business in the same city, a like presumption fixes that point as the place of delivery.</p> <p>Evidence (175)'—Parol Evidence to Vary Writing—Ambiguity. Parol evidence explaining what was meant by “1 car” of flour, and showing amount contained in a car shipped at the time and the manner of shipment, does not alter or add to the written memorandum of sale answering the requirements of the statute of frauds.</p> <p>Sales (154-156) —Action eor Breach — Damages. In an action for failure to deliver flour sold, where there was no dispute as to the market value of the brand sold, the question of market value should have been withdrawn, and the jury instructed to assess damages in a sum equal to the difference between the contract price and the market value.</p> <p>Principal and Agent (34)—Sales Agent — Authority. The authority of an agent to make a sale of flour is sufficiently shown by evidence that he had been a salesman for the principal for six years, actively engaged in soliciting orders and making such sales, his authority never having been questioned before.</p> <p>Same (51)—Agent’s Right to. Sue. An agent acting individually in buying flour and making the contract, may sue thereon in his own name as the real party in interest.</p> <p>Mackintosh, Holcomb, Main, and Tolman, JJ., dissent.</p>

Appeal by plaintiff from a judgment of the superior court for Kitsap county, French, J., entered September 18, 1917, upon findings favorable to the plaintiff, in an action for divorce, tried to the court.

<p>Appeal from a judgment of the superior court for Clarke county, Back, J., entered November 12, 1917, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for damages.</p>

, entered November 7, 1917, upon findings in favor of the plaintiff, in an action for an injunction and for damages, tried to the court.

, entered December 14, 1917, in favor of the defendants, in an action to recover a promissory note on the ground of duress and failure of consideration, tried to the court and a jury.

<p>Appeal from a judgment of the superior court for Asotin county, Miller, J., entered November 5, 1917, in favor of the defendants, in an action to foreclose a mortgage, tried to the court.</p>

<p>Criminal Law—Continuance—Conviction of Perjury—Effect. The continuance of a criminal case against one convicted of perjury until he had obtained a reversal thereof is properly denied; since Rem. Code, § 1212, providing that any person convicted of perjury shall not be a competent witness unless the judgment is reversed, does not deny the right under Const., art. 1, § 22, to testify in one’s own behalf.</p> <p>Larceny (6)—Information—Sufficiency. An information sufficiently charges the offense of horse stealing by one assisting therein, where the offense is charged in the language of the applicable portion of Rem. Code, § 2601, defining larceny, and of §§ 2007, 2260, providing that no distinction shall exist between principal and accessories, who may be proceeded against as principals, and where it enables a person of common understanding to know what is intended.</p> <p>Criminal Law (161)—Evidence—Testimony of Accomplices. In a prosecution for larceny, evidence is competent against an accessory that the principal, who admitted his guilt, drove the team to H. and there sold them, when such evidence would have been competent against the principal.</p> <p>Same (27)—Jurisdiction — Locality of Offense — Accessory in Another State. Under Rem. Code, § 2254, subdiv. 3, providing for the punishment of one .who, being out of the state, counsels, procures or abets another to commit a crime in this state, evidence is admissible of a conversation had with accused in another state, after full agreement and plans for the theft had been made in this state.</p> <p>Criminal Law (101)—Evidence—Res Gestae—Subsequent Conduct. Upon a prosecution for larceny by an accessory, evidence that defendant had aided the principal in his defense of alibi on prosecution for the same larceny is admissible as part of the res gestae.</p> <p>Larceny (12)—Variance. A fatal variance in charging the theft of horses belonging to C. Brothers is not shown by evidence of one of the firm who answered “I was,” to the-question whether he was the owner, where he afterwards used the plural “we,” and ownership of the firm was testified to by another witness.</p> <p>Criminal Law (301)—Instructions—Form and Language. Under an information charging the fact of aiding, assisting, etc., in a larceny, employing the words in the conjunctive, it is not error for the instructions to mention them in the disjunctive.</p> <p>Same (17, 19)—Accomplices. As an accessory is tried as a principal, he cannot object to instructions concerning accomplices because he did not do the actual stealing.</p> <p>Same (316)—Instructions. It is not error to refuse requested instructions that are covered in the general charge.</p>

Motion filed in the supreme court December 2, 1918, to strike appellant’s abstract and affirm tbe judgment, or to strike tbe abstract and require tbe filing of an abstract conforming to tbe rules of court.

<p>Fbaudulent Conveyances (84, 92)—Preferences — To Relatives—Evidence—Sufficiency. No fraudulent intent is shown hy a sale hy a father to a son of ten mules and other property in satisfaction of a debt for $1,000, where the only evidence as to the consideration was that of father and son which showed it to he adequate, and if the father was insolvent at the time he did not know it.</p> <p>Same (41, 95)—Preferences—Retaining Possession—Intent— Evidence—Sufficiency. Fraudulent intent in the sale hy a father to a son of ten mules and other property in satisfaction of a debt for $1,000, is not shown hy the fact that there was no apparent change of possession, where it appears that they were living together, the son ran the farm, paid the hills, and exercised exclusive control over the property and listed it for assessment as the owner.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered May 13,1918, upon a trial and conviction of violating the prohibition law.</p>

, entered February 19, 1918, upon granting a nonsuit, dismissing an action for personal injuries sustained through a collision with an automobile.

<p>Appeal (117)—Preservation op Grounds—Objections to Complaint. In an action to recover goods conditionally sold, objection that the complaint did not tender, for surrender and cancellation, the notes given for the purchase price cannot be first made on appeal, where the notes were introduced in evidence and cancelled by the judgment.</p> <p>Tender (7)-—Conditions—Conditional Sales Contract. A tender of the sum due on a conditional sales contract, conditioned on receiving an absolute conveyance of the property, is insufficient, where payment was a condition precedent to passing title, and the contract provided that title should be absolute on full payment and did not contemplate any additional conveyance.</p> <p>Same (4)—Mode and Sufficiency—Payment Into Court. After suit brought, it is not a sufficient tender to leave money with a third person to be handed to’plaintiff’s attorney, and in the case of a legal action, to fail to bring the money into court.</p>

, entered September 17,1917, upon findings in favor of the plaintiff, in an action for specific performance, tried to the court.

, entered May 7, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee engaged in railroad construction work.

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered November 23, 1917, upon a trial and conviction of a gross misdemeanor.</p>

, entered April 25, 1918, in favor of the plaintiffs, in an action to determine the validity of claims against a fund due a contractor on public work, tried to the court.

<p>Appeal from an order, of the superior court for Stevens county, Heal, J., entered September 4, 1918, allowing alimony and suit money, in an action for divorce; also motion to vacate the order appealed from on the ground of a voluntary settlement of the action.</p>

<p>Appeal from a judgment of the superior court for Douglas county, Hill, J., entered February 7, 1918, in favor of one defendant, in an action for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered November 7, 1917, upon findings in favor of the defendant, in an action for equitable relief, tried to the court.</p>

<p>Sales (77)—Failure to Deliver—Excuse—Breach. Where a contract for the sale of bulk wheat required delivery within a certain time at a specified warehouse, inability of the warehouse to receive it within the time specified does not absolve the seller from making delivery as one of the concurrent acts which he assumed, and he is liable in damages, where he declares the contract at an end and makes no effort to make delivery at any place (Chadwick, C. X, and Tolman, X, dissenting; overruled on rehearing).</p> <p>On Rehearing En Banc.</p> <p>Same (77). Where a contract for the sale of bulk wheat, required delivery within a certain time at a specified warehouse, inability of the warehouse to receive it within the time specified absolves the seller from making delivery and puts an end to the contract, where the buyer, upon notice of the conditions, failed to provide any place where delivery could be made without additional labor or expense on the part of the seller.</p>

<p>Malicious Prosecution (14-1)—Evidence—Admissibility—Rea-son for Dismissal. In an action for malicious prosecution, the plaintiff, in making a prima facie case by proof of dismissal of the criminal charge, is not entitled to show the reason for the dismissal by the examining magistrate.</p> <p>Trial (24)—Reception of Evidence—Cumulative Evidence. It is not error to exclude a certified copy of a judgment of dismissal which would only have been cumulative evidence of an admitted fact.</p> <p>Malicious ’Prosecution (14)—-Probable Cause—Admissibility. In an action for malicious prosecution, under a general denial the defendant may show probable cause by proof of a full and true disclosure to the prosecuting attorney who directed the filing of the complaint.</p> <p>Same (3, 15)—Probable Cause—Advice of Prosecutor—Evidence —Sufficiency. Probable cause for a criminal prosecution is established as a matter of law, by a full and true disclosure of the facts to the prosecuting attorney who directed institution of the proceedings; and it is immaterial that the evidence was largely hearsay, and insufficient to secure conviction.</p>

<p>Husband and Wipe (21)—Wife’s Separate Estate—Earnings. A married woman may receive tbe wages for her personal service, earned under a contract made and performed during coverture, when such earnings were her separate property.</p> <p>Parties (51)—Real Party in Interest—Objections — Waiver. An objection that a married woman is not the real party in interest, in her action to recover for wages upon her contract made during coverture is waived if not made when the defendant first appears in the action.</p> <p>Husband and Wife (21, 23-1, 60)—Wife’s Separate Estate— Earnings—Evidence—Sufficiency. Where a married man, employed in a pumping plant by a city, made an arrangement whereby the city was to employ and pay his wife wages for assisting, and thereafter receipted for his own wages and made no claim for hers, there was sufficient evidence to support a finding that her wages were her separate property.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered March 18, 1918, in favor of the plaintiff, in garnishment proceedings, tried to the court.</p>

<p>Appeal from an order of the superior court for Benton county, Truax, J,, entered November 2, 1917, setting aside a sale made by executors under order of court, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered March 27, 1917, upon findings in favor of the plaintiffs, in consolidated actions to foreclose mortgages, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Neal, J., entered April 22, 1918, approving the final account of an executor, after a hearing upon objection before the court.</p>

<p>Fraud (8, 22)—Purchaser of Land—Deficiency in Acreage-Evidence—Sufficiency. Findings that purchasers were not misled to their prejudice by false representations that a tract of land contained twenty acres, are sustained, where the tract' was in compact form, its boundaries all in view and pointed out, and the purchasers twice inspected the boundaries and expressed doubt as to the area, but finally accepted deed referring to the land as twenty acres more or less, in view of a dispute in the evidence as to the representations made and the rule that the burden was upon them to show the fraud by clear and convincing evidence.</p>

<p>Principal and Agent (58)—Ratification in General. There was sufficient evidence that an agent’s contract was made in behalf of a partnership where the partners ratified what he had done.</p>

Appeal by plaintiff from a judgment of the superior court for Pierce county, Card, J., entered March 30, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages and for the rental of a donkey engine.

<p>Landlord and Tenant (36)—Purchase by Tenant—Merger of Estates. Where a contract for the purchase of mining claims expressly provided that it was subject to a lease which required payment of royalties for a two-year term, consummation of the contract by the lessee to whom it had been assigned does not merge the lease, or dispense with the payment of royalties during the term.</p>

, entered January 8, 1918, upon findings in favor of the plaintiffs, 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 January 4, 1918, upon sustaining a demurrer to the complaint, dismissing an action on contract.</p>

<p>Appeal from an order of the superior court for Pierce county, Card, J., entered October 3, 1917, upon sustaining a demurrer to the petition, dismissing proceedings for equitable relief.</p>

, entered March 2, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger boarding a street car.

<p>• Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered December 10, 1918, upon granting a nonsuit, dismissing an action in tort.</p>

<p>Corporations (263) — Foreign Corporations — Process — Doing Business in State—Evidence—Sueeiciency. A foreign manufacturing company is doing business in this state, within Rem. Code, § 226, subd. 9, relating to tbe service of process, where it had on hand in a warehouse a large list of extras and repair parts of machines sold, to be sold and accounted for as its property by the warehouse company.</p> <p>Same (263) — Foreign Corporations — Process — Service on “Agent.” An employee of a foreign manufacturing company is an “agent” for the service of process, where he was employed to do whatever was directed by the general manager and was sent to A. county in this state to check up and take possession of the company’s stock of goods.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Neal, J., entered June 18,1917, upon findings in favor of the plaintiff, in an action for personal injuries, sustained through a defect in a county road, tried to the court.</p>

<p>Appeal from a judgment of tlie superior court for King county, Ronald, J., entered June 24, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract, after a trial on the merits.</p>

, entered March 29, 1918, upon findings in favor of the defendant, in an action of unlawful detainer, tried to the court.

<p>Appeal and Error (282)—Statement of Facts—Necessity—Dis-allowance of Amendment. Error cannot be predicated upon the disallowance of an amendment to an answer, in the absence of a statement of facts containing the showing made before the trial court.</p> <p>Discovery (15)—Inspection of Writing—Materiality. It is not error to refuse to allow plaintiff an inspection of writings, where defendants struck out all reference thereto, and plaintiffs set out the agreement verbatim in their reply.</p> <p>Judgment (200)—Conclusiveness—Persons Concluded—Privity. In an action to quiet title, an answer pleading a former adjudication as to the title against the K. lumber company and that plaintiff was identified in interest with such company states facts constituting a defense.</p> <p>Trusts (20)—Constructive Trust—Fraud. Property obtained through the fraudulent practices of a third person will be held under a constructive trust for the person defrauded although the person receiving the benefit was innocent of collusion, since he adopted the means by which it was procured.</p> <p>Discovery (10)—Failure to Answer Interrogatories. Default is properly taken against plaintiffs who refuse to answer interrogatories submitted by defendants calling for facts material to the defense.</p>

<p>Criminal Law (255, 259)—Trial — Instructions — Unlawful Comment—Assumption of Facts. In a prosecution for assault, an admission by the defendant, that when attacked and struck he threw up his arm to ward off a blow, and thought it struck the arm of the assailant, is not an admission that he used force, and does not, even with the testimony of other witnesses, warrant instructions to the jury assuming that he used force, and the same is unlawful comment on the evidence.</p> <p>Same (391-1)—Appeal—Exceptions—Necessity—Rulings on Evidence. Where instructions invade a constitutional right by unlawful comment on the evidence, it is not necessary that an exception be taken and called to the attention of the trial court.</p>

<p>Master and Servant (174)—Injury to Third Person—Liability . of Master—Evidence—Sufficiency. Where the explosion of a gasoline tank on a boat was caused by the carelessness of a member of the crew in spraying distillate over the deck and over a lighted lantern negligently placed near the opening in the tank, in attempting to transfer the distillate to the boat after being ordered not to do so, defendants, the owner of the vessel and the contracting company furnishing the distillate, having no knowledge of the matter, are not liable for the death of another member of the crew, killed by the explosion.</p> <p>Trial (33)—Reception of Evidence—Reopening Case. It is not error to refuse to reopen a case for further testimony after granting a nonsuit, where the proposed testimony would not have changed the result.</p>

<p>Railroads (66)—Operation—Accidents at Crossing-—Contributory Negligence—Duty to Stop, Look and Listen. The driver of an auto truck is guilty of contributory negligence, precluding recovery for his death, where he drove upon his farm crossing in front of a rapidly approaching passenger train, in the daytime, having a clear view of the train upon a straight track, and did not at any time stop, look or listen.</p> <p>Same (62)—Operation — Accidents at Crossing — Proximate Cause—Last Clear Chance. Where the driver of an auto truck drove upon a farm crossing in front of a rapidly approaching passenger train, in the daytime, having a clear view of the train, upon a straight track, and did not at any time stop, look or listen, the doctrine of last clear chance to avoid the accident does not apply, on the theory that his truck had to wait upon a parallel track upon which a freight train half a mile away was approaching, where such train was so far away as not to be a factor, and the trainmen had no reason to believe that the truck, which was moving slowly, would not come to a stop and wait.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered July 19, 1918, upon the verdict of a jury rendered in favor of the defendant, in an action for wrongful death, • after a trial on the merits.</p>

<p>Appeal by plaintiff from a judgment of the superior court for Snohomish county, Alston, J., entered May 6, 1918, upon findings in favor of the plaintiff, awarding damages for trespass in the amount tendered by defendants, after.a trial to the court.</p>

<p>Husband and Wife (75, 77)—Community Property—What Law Governs. A debt contracted in Illinois and there the separate debt of the husband cannot be satisfied out of community personalty subsequently acquired by the husband and wife after removal to this state.</p>

<p>Contracts (8-7)—Construction — Subject-Matter—Plans for Building—Guaranty of Sufficiency. In an action to recover damages from tbe collapse of a building constructed for plaintiff by defendant, it is error to permit the defendant to introduce evidence of the inadequacy of the plans, where the defendant had contracted to furnish the plans and thereby vouched for their adequacy.</p> <p>Evidence (175)—Parol to Vary Writing—Ambiguity. Defendant’s contract to “furnish” the plans for a building to be constructed for plaintiff, is not so indefinite or ambiguous as to permit oral evidence to show that plaintiff was familiar with the plans and as a matter of fact furnished them and so would be responsible for their inadequacy.</p> <p>Contracts (164, 176)—Defenses—Issues and Variance. In an action to recover damages for the collapse of a building constructed for plaintiff by defendant, the defenses of inadequacy of the plans and that the building collapsed by reason of additional weight imposed by plaintiff’s change of the plans, are of the same nature, and if only one of them was raised by affirmative defense, the defendant should not be heard to say that the other was raised and could be presented under the general denial, where the case had been at issue for months while plaintiff’s evidence was being taken by deposition, and nothing in the pleadings or at the trial specially suggested any such defense until the opportunity to guard against it had virtually passed.</p> <p>Interest (7)—Demands Not Liquidated. In an action for damages from the collapse of a building interest is recoverable only from the date of the judgment.</p>

<p>Appeal and Error (175)—-Time for Taking—Effect of Motions. Where a verdict was rendered April 24th and judgment withheld pending motions for judgment non obstante and for a new trial, until June 24th when the first judgment was entered, an appeal notice served September 19 and filed September 21, is within the ninety days limited by law.</p> <p>Insurance (51)—Construction of Contract—Term—Voyage in Marine Policy. A marginal clause in a policy of marine insurance limiting the policy to the waters of southeastern Alaska, delivered after the sailing of the vessel, will prevail, although unknown to the owners, unless there are facts that estop the company from reliance on the provision.</p> <p>Same (10, 109)—Agents or Broker—Relation to Parties—Statutes—Knowledge Imputed. Under the insurance code, Rem. Code, § 6059-1 et seq., defining an “agent” as the person appointed and authorized to solicit applications and effect insurance, and a “broker” as a person not appointed who acts or aids in any manner in negotiating contracts of insurance for a party other than himself, and requiring larger license fees for brokers than for agents, an insurance concern that makes application to the agents of the company for a policy of marine insurance is a broker and acts as agent of the owners of the boat, so that its knowledge would not be imputed to the company.</p> <p>Same (108)—Agents—Notice—Reliance on Application. Where a broker’s application for marine insurance expressly specified that the boat was not to be employed in the waters of southwestern Alaska, and the surveyor’s report gave the employment of the boat as both the waters of southeastern and southwestern Alaska, the agents of the company writing the insurance were not bound to make inquiry as to whether the insurance desired was that applied for, but were entitled to rely on the application, the rate of insurance being different.</p>

<p>Application for a writ of prohibition, filed in the supreme court January 14, 1919, to prohibit further proceedings in garnishment in the superior court for King county, Jurey, J.</p>

<p>Infants (16)—Juvenile Offenders — Punishment — Statutes. Under the juvenile court law, Rem. Code, § 1987-1 et seq., defining dependent and delinquent children, which provides, in § 1987-11, that no court shall commit a child under sixteen to a jail, common lockup, or police station, and that when sentenced to any institution to which adult convicts are sentenced, it shall be unlawful to confine such child in a building with such adults, and Id., § 1987-12, authorizing a court to turn a child over to the proper authorities for trial when charged with crime, the word “commit” refers only to detentions pending hearing, and a child may be prosecuted for crime and sentenced to the penitentiary, although not confined in a building with adult convicts; and the fact that the state has not made proper provisions, does not prevent such sentence.</p> <p>Prohibition (4)—Adequacy of Remedy by Appeal—Inability to Give Bail. The fact that one convicted of crime cannot give bail is no reason for reviewing errors of the trial court by the extraordinary writ of prohibition.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered March 13, 1918, upon a trial and conviction of grand larceny.</p>

<p>Appeal and Error (428)—Review — Harmless Error — Prejudicial Effect. It is not prejudicial error for the court to permit the jury to determine an issue, where the court should have made the same findings as a matter of law.</p> <p>Evidence (31)—Burden of Proof—Party Asserting Fact. In a parents’ action for damages on account of medical attendance and expenses in caring for a child, the defendant, having asserted that such items had already been litigated, has the burden of proving the fact.</p> <p>Damages (115)—Excessiveness—Loss of Services. A verdict for ?900, for loss of services of a child during minority is not excessive.</p>

, entered March 23, 1917, upon findings in favor of the defendants, in an action to enforce a claim against an estate, tried to the court.

<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.</p>

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

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.