Volume 106 — Washington Reports

, entered November 7, 1917, upon sustaining a demurrer to the complaint, dismissing an action by a carrier to recover freight charges.

<p>Application for a writ of mandamus, filed in the supreme court, November 22, 1918, to compel the superior court for Pierce county, Clifford, J., to proceed with habeas corpus proceedings.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Truax, J., entered August 23, 1918, upon findings in favor of tlie plaintiffs, in consolidated actions to set aside a tax levy.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered January 14, 1919, dismissing an action to restrain a municipal purchase of a street railway system, upon sustaining demurrers to affirmative defenses.</p>

<p>Appeal from a judgment of the superior court for Pierce ■ county, Easterday, J., entered July 13, 1918, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

, entered November 27, 1917, upon findings in favor of the plaintiffs, in an action to enjoin the nse of a trade-name, after a trial on the merits to the court.

, entered February 11,1919, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to recover a tax paid under protest.

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered February 21, 1918, upon findings in favor of tbe plaintiff, in an action on implied contract for services, tried to tbe court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered March 30, 1918, upon findings in favor of the defendants, in an action to foreclose a mortgage, after a trial on the merits to the court.</p>

<p>Forcible Entry and Detainer (10)—Evidence—Oe Eviction—■ Sufficiency. Under Rem. Code, § 810, defining forcible entry, there was no eviction to sustain an action of forcible entry and detainer against a vendee from a landlord who went into possession at a time when the premises were vacant and unoccupied, without knowledge that the landlord had unlawfully evicted plaintiff under a void writ of restitution, the plaintiff never having demanded possession of such vendee.</p> <p>Same (2)—Notice and Demand—Necessity. Under Rem. Code, § 811, one who enters upon unoccupied lands is not guilty of forcible detainer in the absence of any demand for possession.</p> <p>Same (12)—Damages—Rental Value—Waiver by Laches. The rental value of premises, as damages in an action for forcible entry and detainer, is waived by a tenant who, after being ousted on a void writ, made no demand to be repossessed of the premises and began no proper legal proceeding to be restored to possession for a period of more than three years after being evicted.</p>

<p>Husband and Wife (56, 58)—Profits and Products of Separate Property. The presumption is that a husband, having possession of both separate and community property, pays an indebtedness out of the fund from which it should be met.</p> <p>Same (19, 52, 53)—Wife’s Separate Estate—Community Property—Purchase by Wife. Where property was purchased and partly paid for by the wife’s separate funds, it is to that extent her separate property, and where community funds paid for the balance, the balance is community property.</p> <p>Same (19, 20, 54, 58)—Community Property. Where property was purchased and partly paid for by a wife with separate funds, and the balance secured by a joint note and mortgage upon her separate property, its status as her separate property is fixed at that time, and the presumption that it was community property is overcome, although subsequently community funds were used in paying the obligation, where there was no intention as between husband and wife to change the original status of the property.</p>

<p>Receivers (58)—Sale op Property—Public Auction—Power to Cancel High Bid. A receiver, ordered to make a sale at public auction, who was unable to consummate the sale to the highest bidder, cannot by private arrangement sell to the low bidder, but must proceed against the highest bidder or take steps for a resale.</p> <p>Same (60)—Sales—Validity—Return. A receiver’s sale is defective where the return is not made within the time limited.</p>

<p>Attorney and Client (6)—Disbarment—-Jurisdiction to Suspend —State Board of Examiners-—-Statutes—Constitutionality. Laws 1917, p. 421, giving the state board of law examiners power to examine applicants for admission to the bar, and to investigate the conduct of attorneys, initiate complaints and hear disbarment proceedings, subject to review by the courts, though unconstitutional in so far as it authorizes them to enter judgment of disbarment, is sustainable as to the delegated legislative and administrative functions, and authorizes the board to pass upon the evidence received, and report the same to the supreme court; since the valid is separable from the invalid portions of the act.</p> <p>Same (7)-—Grounds for Suspension—Evidence—Sufficiency. An attorney who irregularly receives money as administrator before qualifying, and misappropriates it, but without intent to defraud the estate or bad motive, and repays the same with interest, will not be disbarred, but will be suspended for one year.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered November 5, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for rescission of a land contract, after a trial on the merits.</p>

<p>Physicians and Surgeons (10) —Action for Malpractice — Defenses — Gratuitous Treatment of Animals by Unlicensed Persons. The gratuitous administration of hog cholera serum hy one who is not a licensed veterinarian, and whose charge was merely for serum manufactured hy him, does not violate Rem. Code, § 8440, providing that nothing in the act shall be construed to apply to persons who gratuitously treat diseased animals; and does not render the manufacturer liable for the loss of hogs, there being no negligence in the manufacture or treatment.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered April 3, 1918, upon findings in favor of the defendant, in an action to foreclose a chattel mortgage.</p>

<p>Bills and Notes (82) —Payment oe Fobged Note — Pebsons to Whom Payment May Be Made. Under Rem. Code, § 3414, which provides that a forged signature is wholly inoperative, unless the party is precluded from setting up the forgery, payment of notes to a bank holding under an indorsement forged by the holder's agent, discharges the note, where the holder receives the proceeds, although through his agent’s dishonesty he applied the same to other accounts; since he lost nothing by the forgery.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered November 8, 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 Spokane county, Blake, J., entered January 19, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for services performed.</p>

Application filed in the supreme court March 12, 1919, for an alternative writ of mandamus to require the superior court for King county, Bonald, J., to fix the amount of a supersedeas bond, or admit to bail, pending appeal in habeas corpus proceedings.

<p>Appeal from a judgment of the superior court for Ferry county, Neal, J., entered November 9,1917, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Logs and Logging (55) —Sales oe Lumber—Contract-—-When Title Passes. A contract for the sale of a certain quantity of lumber, referred to as piled at the seller’s mill, although expressing the intention to pass the title, does not completely pass title as to a deficiency in the quantity which was not yet manufactured or set aside so that the buyer could assume control over it.</p> <p>Same. In such a case, the fact that the buyer took out insurance upon the whole amount contracted to be sold does not show that such amount was actually set aside or marked or completely manufactured so as to pass title.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered July 24, 1918, upon findings in favor of the plaintiff;, in an action to rescind a, contract to purchase an automobile, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Alston, J., entered August 26, 1918, upon findings in favor of the plaintiffs, in an action to set aside a tax deed, tried to the court.</p>

Cross-appeals from a judgment of the superior court for King county, Frater, J., entered November 27, 1918, granting plaintiffs partial relief, in an action for an injunction, tried on the merits to the court.

<p>Appeal from a judgment of the superior court for Whatcom county, Pemberton, J., entered February 9, 1918, dismissing a prosecution for grand larceny, upon sustaining a demurrer to the information.</p>

Cross-appeals from an order of the superior court for Lewis county, Eeynolds, J., entered October 26, 1917, awarding a dividend in receivership proceedings, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered July 18, 1917, dismissing an action for slander, upon granting a non-suit.</p>

, entered May 24, 1918, upon findings in favor of the plaintiff, in an action to vacate a decree of divorce, tried on the merits to the court.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered July 24, 1918, dismissing an action for an injunction, upon sustaining a demurrer to- the complaint.</p>

<p>Brokers (4) —Authority — Apparent Scope. A broker for the sale of a tract of platted land, who was furnished with a list of prices and authorized to conduct sales in the customary manner by delivering the contract and collecting payments, acts within the apparent scope of his authority in fixing a price less than the list price, and in delivering a forged contract and deed and collecting the payments.</p> <p>Estoppel (35-1, 62)—Acts Making Injury Possible as Between Actor and Another Equally Blameless—Persons Estopped. Under the rule that the one of two innocent persons who had placed it in the power of another to occasion a loss must stand the same, the owner of a large tract of platted land who placed the same in the hands of a broker, clothed with apparent authority to make sales and collect the money-, must stand the loss, where the agent sold lands at less than the list price and embezzled the payments.</p>

<p>Counties (46)—Contractor's Bonds-—-Notice of Claim —-Sufficiency. One general notice of claim against two bonds of a contractor on county road work substantially complies with the statute, Rem. Code, § 1161-1, and is sufficient although it covers two contracts and bonds for distinct portions of the improvement, where the items charged against each project were segregated, all the parties were the same in each case, and the work was sublet to the claimant to be performed as a whole.</p> <p>Same (46)—Payment (14)—Application. Such a claim is not rendered uncertain by' acknowledgment of a cash payment without specifying its application; since the law would make the application pro rata.</p> <p>Counties (46)—Contractor’s Bonds—Labor—Notice of Furnishing—Statutes. A subcontractor to haul all the sand, gravel and cement used on county road work agrees to furnish labor, and is not within Rem. Code, § 1159-1, requiring notice within ten days to the principal contractor of the furnishing of “materials, supplies or provisions.”</p> <p>Same (46)—Contractor’s Bonds—Liability—Reasonable Value of Service. In an action on a contractor’s bond, by one furnishing labor on county road work, the increased cost for hauling, provided for in the contract in case of breach, is recoverable only so far as it is reasonable and not as liquidated damages, since the action is to recover a just charge for the services performed.</p> <p>Appeal and Error (117, 389)—Objections to Complaint—Amendments Regarded as Made. Upon raising the question of the sufficiency of a complaint for the first time on appeal, only defects incapable of amendment showing plaintiff had no cause of action are material, as the complaint will be considered amended to conform to the proof.</p> <p>Pleading (208)—Waiver of Objections — Ruling on Motions. Proceeding to trial on the merits, after overruling a motion to require the plaintiff to separately state his causes of action, waives the objection.</p> <p>Contracts (154)—Breach—Acts Constituting. Refusal to make a monthly payment due for hauling on county road work, or to determine the amount due, constitutes a breach of the contract, warranting a cancellation.</p> <p>Contracts (125)—Rescission—Time for — Laches. Failure to immediately cancel a contract for hauling on county road work, upon nonpayment of a sum due, was not a waiver of the right to thereafter cancel at any time prior to compliance or offer of payment.</p> <p>Contracts (120)—Rescission—Waiver. Continuing work for a few days for the convenience of the employer does not waive the employee’s cancellation of a road hauling contract for breach in failing to make payments.</p> <p>Contracts (154)—Breach—Acts Constituting. After notice of cancellation of contract for nonpayment of installments due, payment is too late to keep the contract in effect.</p> <p>Counties (46)—Contractor’s Bonds — Liability — Reasonable Value. Where the first hauling under a contract for county road work was over the extreme distances, it is not unreasonable in an action on the contractor’s statutory bond, to allow recovery for early work at a higher price, as fixed in the contract for liquidated damages in case of a breach terminating the contract before complete performance.</p> <p>Same (46). The liability of the principal contractor and bondsmen on county road work, upon the statutory bond given to secure laborers and materialmen, being statutory for the reasonable value of the service, is irrespective of the form of the contract between the claimant and his immediate employer.</p> <p>Same (46). Such liability permits recovery for services performed after the claimant had elected to quit work and cancel the contract, where the subcontractor employing him permitted the work and received the benefit of it, a promise to pay the reasonable value being implied.</p> <p>Customs and Usages (4, 6)—Evidence (159)—Admissibility. Where a contract for hauling on road work was ambiguous as to whether fractions of a mile haul were to be treated as a full mile, it is proper to admit evidence to show the custom-.</p>

<p>Appeal from a judgment of the superior court for Klickitat county, Dykeman, J., entered February 13, 1918, upon findings in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

<p>Bailment (3)—Care and Use of Property—Servants of Lessee or Lessor. Where the lease of a logging engine required the lessor to furnish an engineer satisfactory to the lessee, and who was to be under the control of the lessee’s superintendent, he was the servant of the lessee, in the absence of express provision to the contrary; making the lessee liable for loss of the engine through the engineer’s negligence (Chadwick, C. J., dissenting).</p> <p>Interest (7)—Accrual—’Unliquidated Claims. Interest on an unliquidated claim for damages runs only from the date of judgment.</p> <p>Costs (62)—On Appeal—More Favorable Judgment. Appellants, having obtained a substantial modification of the judgment of the lower court, are entitled to their costs on appeal.</p>

<p>Appeal from a judgment of tlie superior court for Grays Harbor county, Abel, J., entered May 18, 1918, upon the verdict of a jury rendered in favor of the defendant, in an action in tort.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered September 3,1918, upon findings establishing the priority of liens, in an action to foreclose a mortgage, tried on the merits to the court.</p>

, entered June IB, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort, after a trial on the merits.

<p>Appeal from a judgment of the superior court for Clarke county, Mackintosh, J., entered March 28, 1918, upon findings in favor of the defendant, in an action for divorce, tried to the court.</p>

<p>Accord and Satisfaction (4)—Insurance (145)—Part Payment of Loss—Consideration. There was a complete accord, and satisfaction where insured, entitled under Rem. Code, § 6059-105%, to the policy value of a building destroyed by fire, agreed with the adjuster to a lump sum as the total loss, including partially destroyed items and a less value on the building, which was in dispute, and made proofs of loss for such sum and accepted the same in full payment; and it is immaterial that he claimed that consent was given in ignorance of the statute.</p>

<p>Husband and Wife (48 )—Community Property—'Time of Acquisition. The status of marital property is determined as of the time of its acquisition.</p> <p>Divorce (80)-—Distribution of Property—Statutes. The ’exact status and amounts of community and separate property of the spouses is not controlling, under Rem. Code, § 989, providing for an equitable disposition of the property on granting a divorce, since the law does not require an equal division of the community property, nor an award of alimony out of separate property.</p> <p>Same (80). An allowance of $100 per month out of a salary of $300 for the first three years, and certain portions of the property of the parties, held to he an equitable allowance and division, in view of the origin and amount of the other property.</p>

<p>Applications filed in the supreme court February 5, 1919, for writs of certiorari and mandamus to the superior court for Skagit county, Brawley, J., upon the denial of a change of venue.</p>

<p>Pleading (112, 113)—Amendment — New Theory or Form of Action. It is not error to allow an amendment changing the theory of the action and stating somewhat different facts, where the cause was fully tried thereon and no surprise was claimed.</p> <p>Frauds, Statute of (8) — Agreement Not to Be Performed Within One Year. An agreement to pay a commission on a sale of goods, in consideration of the agent’s release of an option, permitting a sale to another, is not within the statute of frauds as not to be performed within one year, because no time was fixed; especially where it was fully executed on the part of the promisee.</p> <p>Appeal and Error (451)—Harmless Error—-Admission of Evidence. In an action tried to the court, error cannot be predicated on the admission of improper evidence.</p> <p>Brokers (16)—Compensation — Procuring Cause. A broker’s commission cannot be defeated on the ground that he was not the procuring cause of a sale to another, when the consideration for the promise was the broker’s release of an option which he held, that the resale could be made.</p> <p>Appeal and Error (4lá)—Review—Findings. The court will not disturb findings upon conflicting evidence, unless on careful consideration it is of the opinion that they are not sustained by the weight of the evidence.</p>

, entered October 10, 1917, in favor of the defendant, notwithstanding the verdict of a 'jury in favor of plaintiff, dismissing an action for the rescission of a sale of land.

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered May 15, 1918, dismissing a prosecution for adultery, on motion of the complaining spouse. Reversed.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered December 18, 1917, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Taxation (147)—Constitutional Law (65, 77)—Statutes (85)— Foreclosure of Lien — Conditions Precedent — Retroactive Effect op Law. Since the power to tax is referable to the sovereign power of the state without reference to any contractual relation, Rem. Code, § 7892-40, adding to the prerequisites to foreclosure of certificates of delinquency the payment of local assessments, operates on certificates purchased from the county prior to the taking effect of the act, and no vested rights are affected thereby or the obligation of a contract impaired.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered February 26, 1918, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, dismissing an action for malicious prosecution.</p>

Application filed in’the supreme court October 11, 1918, for a writ of prohibition to restrain the superior court for Spokane county, Hurn, J., from assuming jurisdiction over actions to recover overcharges for telephone service.

<p>Appeal from a judgment of the superior court for Spokane county, Hura, J., entered July 29, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort, after a trial on the merits.</p>

<p>Action (24)—-Joinder—Parties and Interests Involved. Under Rem. Code, § 296, providing that causes of action united in one complaint must affect all the parties to the action, there is a misjoinder of two causes of action relating to five lots, where two of the lots are owned by one of the plaintiffs and three by the other, each of whom has its own grievance and is not interested in that of the other and different relief is sought.</p> <p>Costs (9)—Prevailing Party—Separate Issues and Appearances. Where the interests of defendants are not identical and they made separate appearances, they are entitled to separate costs of suit.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered September 25, 1918, upon findings in favor of the plaintiff, in an action in tort, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wilson, J., entered July 1,1918, upon findings in favor of the plaintiff, in an action to set aside a deed and recover possession of real property, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Alston, J., entered April 25, 1918, upon, findings in favor of the defendants, in an' action to foreclose a materialman’s lien, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered May 4, 1918, upon findings in favor of the plaintiff, in an action to foreclose a mortgage.</p>

<p>Cabbiees (77-3)—Degree of Cabe—As to Elevators. The operator of elevators is a common carrier of passengers and must exercise the highest degree of care compatible with their practical operation.</p> <p>Same (84, 89)—Negligence — Presumptions — Instructions. In an action for personal injuries sustained in the fall of a passenger elevator through the breaking of the cable, an instruction to the effect that the law presumes a defect in the cable or operation, devolving upon the defendant to show that the break did not result from lack of the highest degree of care, is a correct statement sufficiently covering the law of the case in that particular.</p> <p>Same (89)—Degree of Care—Instructions. In such an action, an instruction that defendant owed the highest degree of care reasonably practicable under the circumstances is a sufficient statement of the rule as to the highest degree of care compatible with practical operation.</p> <p>Trial (101)-—Instructions-—Already Given. It is not error to refuse requested instructions that are sufficiently covered in the general charge.</p> <p>Carriers (89)—Negligence—Instructions. In an action for personal injuries sustained in the fall of a passenger elevator through the breaking of the cable, an instruction that the defendants fulfilled their duty if they used the highest degree of care in the employment of experts for inspection of the elevator and that the same was inspected as frequently as reasonably necessary, is not misleading in - failing to. make them liable if the inspectors failed to perform their duty, when taken in connection with an instruction immediately following to the effect that they would be liable for any lack of care of such inspectors.</p> <p>Same (84, 86, 87)—Evidence—Sufficiency. In an action for personal injuries sustained in the fall of a passenger elevator through the breaking of the cable, it cannot be said, as a matter of law, that the presumption of negligence is nQt overcome by evidence tending to show that the elevator had been properly installed, was in good repair, and that it had been properly inspected and no defect discovered.</p>

<p>Divorce (54)—Jurisdiction and Relief — Divorce to Either Party. Where both parties sustained their case, it is immaterial to which party the court granted the divorce as the less blameworthy of the two.</p> <p>Same (71, 80)—Permanent Alimony—Amount. Upon granting a divorce from a mercenary marriage to a wife who brought nothing to the marriage estate, both parties being blameworthy, an allowance of $5,000, including $250 attorney’s fees, out of the husband’s separate property valued at $25,000, held sufficient.</p>

<p>Petition filed in the supreme court February 11, 1919, for a writ of mandamus, requiring tbe superior court for King county, Ronald, J., to grant a voluntary dismissal.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered May 6, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a promissory note.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered March 22, 1918, upon findings in favor of the defendants, in an action to recover brokers’ commissions, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Mills, J., entered December 15, 1917, upon a trial and conviction of petit larceny.</p>

<p>Trusts (20)—Constructive Trusts—Fraud. A constructive trust, or trust ex maleficio arises and may be specifically enforced, where deeds were made by a debtor to a creditor, under an agreement that an agreement of trust was to be executed at the time of delivery of the deeds, and the creditor obtained possession of the deeds for inspection only and recorded the same and refused to execute the trust agreement.</p> <p>Same (46)—Enforcement of Trust—Performance of Agreement as Prerequisite. Where such a trust arises, under an agreement that the debtor might redeem the property within one year, it was the duty of the debtor to either enforce specific performance of the trust, or comply with the agreement to redeem or offer to redeem within one year, before claiming damages for loss of the property; since the creditor’s'failure to deliver the written agreement of trust did not place the creditor in a better position than if it had been executed, and the resulting trust can still be enforced.</p>

<p>Appeal from a judgment of the superior court for Plug county, Gilliam, J., entered April 20, 1918, dismissing on the merits, an action for fraud, upon sustaining a challenge to the evidence, after trial to a jury.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered May 22, 1918, upon a trial and conviction of forgery.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Ronald, J., entered August 1, 1918, dismissing a,n action in tort, notwithstanding the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits.</p>

<p>Parties (3)—Real Party in Interest—Effect and Proof of Assignment. In an action to recover for services in selling corporate stock, there is no defect of parties from the fact that two other persons were interested with plaintiff in the claims, where plaintiff offered in evidence an assignment to him of such claims, regular on its face, with signatures admittedly genuine.</p> <p>Appeal and Error (162)—Necessity of Findings of Fact. In an action tried by consent as one in equity for an accounting, it is wholly within the discretion of the trial court whether to make findings of fact or not.</p>

, entered July 3, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a policy of life insurance, after a trial on the merits.

Cross-appeals from a judgment of the superior court for Okanogan county, Neal, J., entered April 8, 1918, upon awarding damages on the rescission of a sale of lands.

<p>Appeal from a judgment of the superior court for Grant county, Hill, J., entered April 23, 1918, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Corporations (151, 152) —Powers — Ultra Vires — Estoppel to Deny Corporate Powers. The defense of ultra vires not being favored in law or allowed when it defeats the ends of justice, an industrial corporation not organized for the purpose of becoming a surety, is estopped to plead ultra vires in indemnifying a surety company against loss as surety for contractors, where it appears that its officers represented that it was interested in the contract indemnified, and the corporation had protected itself by securing indemnity from the contractors, and allowed the obligee to proceed and pay out shortages to its detriment.</p>

, entered October 26, 1917, upon findings in favor of the plaintiff, in an action to foreclose a mechanics’ lien, tried to the court.

<p>Appeal from a judgment of the superior court for King county, W. G-. McLaren, Esq., Judge pro tempore, entered April 10, 1918, upon agreed facts, in an action upon life insurance policies, consolidated for trial before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered September 14, 1918, dismissing an action upon a sheriff’s bond for damages for unlawful arrest, upon sustaining a demurrer to the complaint.</p>

Petition filed in the supreme court March 18, 1919, for a writ of mandamus, to the superior court for Lewis county, Reynolds, J., to enforce a change of judges.

<p>Appeal from a judgment of tlie superior court for Spokane county, Webster, J., entered March 9, 1918, upon findings in favor of the plaintiff, reversing on appeal an order of township supervisors legalizing a resurvey of a county road.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered July 2, 1918, dismissing on the merits, an action to set aside fraudulent transfers by a bankrupt, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered April 3, 1918, allowing claims against an estate, after a hearing, before the court on final settlement.</p>

<p>Master and Servant (163)—Injuries to Servant—Questions eor Jury as to Contributory Negligence. Whether a threshing machine operator was guilty of contributory negligence in failing to notice that a guard had been removed from a sprocket wheel, is a question for the jury, where he had repaired and replaced the guard, did not know it had been removed, and placed his hand on the spot while absorbed in an unusual duty in connection with assisting to start the engine.</p>

<p>Malicious Prosecution (15)—Actions—Wetoht and Sufficiency of Evidence. Where plaintiff had published articles reflecting upon the financial standing of defendants’ bank, and was prosecuted for criminal libel at the instance of the state bank examiner and prosecuting attorney, defendants’ institution of the malicious prosecution is not sufficiently shown by the fact that defendants complained to the state bank examiner and asked protection, in the absence of any evidence that they suggested to the bank examiner the remedy to be pursued or influenced the prosecuting attorney to file the information.</p>

<p>Statutes (14)—Subjects and Titles—Expression in Title. An emergency clause is not an independent subject that must be stated in the title of the act, under Const., art. 2, § 19.</p> <p>Same (35-1)—Amendment — Title of Amendment. An amendment of an act adding an emergency clause and merely changing the time when it takes effect is not an amendment changing the scope and object of the bill, within the inhibition of Const., art. 2, § 38.</p> <p>Same (2-3)—Initiative and Referendum—Emergent Acts. The declaration of an emergency contained in a bill is not binding upon the courts but is a judicial question, unless the act is doubtful and the doubt resolved in favor of the declaration treated as a legislative question.</p> <p>Same (2-3). Chapter 46, Laws of 1919, p. 90, providing a “Motor Vehicle Fund” for the support of the highways of the state, is an act for the support of a public institution, within the 7th amendment to the constitution, justifying the legislature in declaring an emergency which excepts the act from a referendum to the people; especially as the funds for the current year were needed prior to the time of the taking effect of general laws.</p>

, entered November 23, 1917, upon an order granting a motion for judgment notwithstanding verdict, in an action for personal injuries.

<p>Intoxicating Liquors (42)—Indictment and Information (600 — Charge in Language of Statute. An information charging, in the language of Rem. Code, § 6262-22, the unlawful possession of an excess quantity of whiskey is sufficient without alleging that it was held for unlawful sale or disposition, in view of Id., § 6262-23, making possession of more than two quarts prima facie evidence that it was kept for unlawful sale or disposition.</p> <p>Intoxicating Liquors (48, 500—Unlawful Possession—Evidence -—-Sufficiency. Under Rem. Code, § 6262-23-, making possession of more than two quarts of intoxicating liquors prima facie evidence that it was kept for unlawful sale or disposition, proof of the possession of twenty-five gallons raises a question for the jury, notwithstanding defendant testified to its lawful acquisition and that it was kept for his personal use.</p> <p>Criminal Law (442)—Review—Verdict. The supreme court will not disturb a verdict of guilty on the ground of insufficiency of the evidence, where there was evidence to support it.</p>

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered May 10, 1918, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for deceit in an exchange of properties, after a trial on the merits.</p>

<p>Landlord and Tenant (27, 124, 126)—Assignment or Sublease— Right to Maintain Unlawful Detainer. A sublease for a term beyond the original term, although containing independent and restrictive covenants not in the original lease, is not such a subletting as will bar the relation of landlord and tenant, but its legal effect is that of an assignment of the lease, establishing privity, and giving the landlord the right to maintain unlawful detainer against the one claiming as sublessee.</p> <p>•Same. The reservation in the sublease of right to re-enter for nonpayment of rent or condition broken is not of itself a reservation of any part of the estate granted, without which its legal effect is that of assignment of the term.</p> <p>Same (148)—Recovery of Possession—Form of Judgment. In an action of unlawful detainer, the objection that the judgment was in form a judgment of ejectment is not available for reversal; since the judgment will be affirmed with directions to enter formal judgment.</p>

Application filed in the supreme court March 18, 1919, for a writ of prohibition, restraining the superior court for King county, Allen, J., from proceeding with a cause, after having denied an application for a change of venue.

<p>Appeal from an order of the superior court for Walla Walla county, Mills, J., entered May 4, 1918, in favor of the defendant, granting a new trial, after verdict in favor of the plaintiff, in an action in tort.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered July 11, 1918, upon findings in favor of an executor and devisee, construing a will and decreeing distribution of the estate.</p>

<p>Highways (9)—Establishment by Pkesceiption—Evidence—Sufficiency of Adverse Use. Notwithstanding an enjoyment of a somewhat devious passageway for a long term of years over open unenclosed land, no prescriptive rights are acquired hy the public or those convenienced thereby until circumstances induced the owner to cultivate or use it, unless it is shown that the public use was adverse for the prescriptive period.</p>

<p>Mortgages (247)—Foreclosure—Satisfaction by Sate. Upon recovering judgment for money loaned and foreclosing a contract given as security, the bidding in of the property at execution sale for the full amount fully satisfies the judgment and debt for the loan.</p>

<p>Bottndaeies (13)—Establishment—Evidence—Weight and Sueficiencv. The evidence fails to show that a quarter section corner about 950 feet north of a right line between the known section corners was the official quarter corner established by the government surveyors, where it appears that a timber company had made a private survey which was erroneous, the corners of which were obliterated by the government surveyors, the claimed quarter corner was on a line with two such obliterated section corners, and the topography of the line thereto did not correspond with the government field notes.</p>

, entered July 16, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort, after a trial on the merits.

<p>Application filed in tlie supreme court Mareli _ 8, 1919, for a writ of certiorari, to review a judgment of tlie superior court for King county, Dykeman, J., entered February 17,1919, committing a dependent child to tbe state training school.</p>

<p>Appeal (236)—Supersedeas—Amount op Penalty-—Money Judgment—Parties Appected. Upon appeal by defendants from the entire judgment entered in consolidated actions, which included two money judgments and other relief, a cost and supersedeas bond by one of the defendants, of which a coappellant is seeking the benefit, must be in double the amount of the two money judgments, with costs; or, in the alternative, the notice of appeal of such defendants must be amended to specify with certainty the portions of the judgment from which their appeal is taken.</p>

<p>Prostitution (1)—Living With Prostitute—Statute. Rem. Code, § 2440 making it unlawful to live with a common prostitute is constitutional.</p> <p>Same (2)—Indictment and Information (60)—Sufficiency. An information for living with a common prostitute, framed in the language of the statute, is sufficient.</p> <p>Same (3)—Evidence—Admissibility. In a prosecution for living with a common prostitute, evidence of other witnesses to his acts of commerce with her and other prostitutes at the same place is admissible as tending to show the accused’s knowledge of her moral status, and to show a general design from which criminal intent may be inferred.</p>

<p>Cross-appeals from a judgment of the superior court for Spokane county, Blake, J., entered July 26, 1918, upon findings, upon trial of the title to mining tools and property, in receivership proceedings, pursuant to- stipulation of the parties.</p>

<p>Guaranty (5)—Consideration—Sufficiency. There is sufficient consideration for the guaranty of a promissory note, made five days after its execution, where the note, given in part payment of a debt, was not accepted and did not take effect until after the guaranty; since there was a detriment to the promisee and a benefit to the promisor in extending the time for payment and release of one of the debtors.</p> <p>Bills and Notes (142)-—-Payment—Evidence—Sufficiency. Findings that payments were not made upon a note are sustained where the evidence was conflicting, the payments were known at the time of a renewal, and were not deducted or credited when the renewal note was given.</p> <p>Appeal (253)—Record—Motions and Order. Error cannot be assigned on the discharge of a writ of garnishment after an appeal had been perfected, where the record on appeal showed nothing further than the journal entry that the motion to dismiss the garnishment had been submitted and denied.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered August 23, 1917, upon findings in favor of the plaintiffs.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered April 17, 1914, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struct by a street car.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Jurey, J., entered January 9, 1918, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Blake, J., entered January 25, 1918, upon findings in favor of the plaintiff, in an action to quiet title and for an accounting, tried to the court.

, entered April 12, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for alienation of affections.

<p>Work and Labor (5, 14)—Agreement—Evidence. An agreement for the operation of defendant’s chicken ranch of fifteen acres on the basis of an equal division of the profits was orally modified where defendant acquired large tracts adjoining and developed the same into a model farm at great expense under an understanding that plaintiff should be paid for superintending the work.</p> <p>Same (15)—Amount of Recovery. In such a case, the plaintiff’s concurrent salary as superintendent should be fixed in view of his want of experience as a farm superintendent and his interest in the chicken business from which he expected large profits.</p>

<p>Pleading (162)—Motions—Separating Causes. But one cause of action is stated in a complaint upon a.mutual open account consisting of reciprocal demands growing out of a general understanding and course of dealing by which, plaintiff furnished money to defendant.</p> <p>Same (158)—Motions — Making More Definite. A complaint upon a mutual open account, containing an itemized statement, need not be made more definite and certain where further information so far as permissible was obtainable by interrogatories to the adversary, under Rem. Code, § 1226.</p> <p>Interest (15-1)—Rate—Oral Agreement. Only six per cent can be recovered on an oral agreement to pay interest on items of an account, under Rem. Code, § 6250, providing that every loan or forbearance shall draw interest at the rate of six per cent unless a different rate is agreed upon in writing.</p> <p>Appeal (349)—Assignments of Error. Assignments of error on the rejection or admission of evidence do not comply with rule 8, snbdiv. 2, where they do not specify or identify the evidence.</p>

<p>Appeal from an order of the superior court for King county, Jurey, X, entered September 21, 1918, denying an application to modify a decree of divorce, after a hearing before the court.</p>