Volume 108 — Washington Reports

<p>Vendor and Purchaser (44, 166)—Agreements for Rescission— Recovery of Purchase Money—Judgment—Findings—Sufficiency. Where purchasers were in arrears and could not pay and settled with the vendor by surrendering their rights and the premises and cancelled and destroyed the contract of purchase, they cannot recover sums they had paid on the purchase price.</p> <p>Same (172)—Pleading (157)—Striking Out Irrelevant Matter. In an action to recover moneys paid on a land contract, pursuant to an alleged mutual cancellation when the purchasers were in arrears and unable to pay, allegations of fraud by the vendors inducing the sale are properly struck out as immaterial.</p> <p>Pleading (163) —Election—Inconsistent Defenses. In an action to recover money paid on a land contract, pursuant to an alleged mutual cancellation, defenses of a surrender in consideration of a release, and that the sums paid and improvements made by the purchasers were not equal to the rental value and damages committed, are not inconsistent in the sense of requiring an election.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered March 27, 1919, upon findings in favor of the intervener, in garnishment proceedings, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Thurston county, "Wright, J., entered September 16, 1918, upon findings in favor of the defendant, sustaining an award for personal injuries, on appeal from the decision of the industrial insurance commission.</p>

Appeal by plaintiff from a judgment of the superior court for Pacific county, Hewen, J., entered June 7, 1917, upon findings in favor of the plaintiff, in an action for divorce; also from an order entered June 16,1917, denying modification of the decree respecting the custody of children.

<p>Appeal (229)—Effect of Transfer of Cause — Jurisdiction Acquired—Custody of Minor Children. After appeal taken in a divorce case affecting the custody of children, the supreme court possesses sole power to make orders with reference to their custody; and the superior court will he prohibited from changing the custody through habeas corpus proceedings pending the appeal, where the supreme court, upon considering the merits, finds that the welfare of the children does not demand a change.</p>

<p>Criminal Law (385)—Appeal—Necessity of Objections—Information. Objections that an information is duplicitous and too uncertain cannot be first made in the supreme court.</p> <p>Homicide (69)—Evidence—Dying Declarations—Admissibility. In a prosecution for homicide by performing an abortion, a dying declaration of the deceased on the evening of her death is admissible where it states that she consulted and was treated by the defendant, for that purpose, that defendant used a catheter and made deceased feel pretty sick, and knew what she was doing.</p> <p>Same (69). Where such declaration contains statements relating to the acts of another in no way connected with the res gestae, they should be stricken.</p> <p>Same (69). The statement that deceased heard defendant tell another over the phone what she had done is admissible not as part of the res gestae, but as an admission of the accused.</p> <p>Same (70). A dying declaration made nine days subsequent to entering a hospital and in a sense recitals of a past event is admissible. when it but describes links in the chain of criminal conduct that was not complete until death was accomplished by the illegal operation.</p> <p>Criminal Law (158)—Evidence—Experts—Hypothetical Questions. In a prosecution for homicide by performing an abortion, it is proper to allow physicians to testify, in answer to questions fairly summarizing the facts which the state’s evidence tended to prove, that the proximate cause of death was the act of the defendant in introducing a catheter into the uterus of a pregnant woman.</p> <p>Homicide (89)—Trial—Reception of Evidence—Dying Declarations. In a prosecution for homicide, the accused is entitled to display to the jury the proven signature of the deceased to a dying declaration, where it was on a sheet separate and apart from the declaration itself and could not confuse the jury.</p> <p>Criminal Law (358-1) —Homicide (127) •—New Trial — Newly Discovered Evidence—Impeachment of Witness. In a prosecution for homicide in performing an abortion, it is an abuse of discretion to refuse a new trial for newly discovered evidence tending to show that the deceased’s dying declaration as to defendant’s use of a catheter was false and that the mother of the deceased had given false testimony upon a material point, and had she testified to the truth, the jury might have reached a different conclusion.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered September 23, 1918, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered January 22, 1919, upon sustaining a demurrer to the complaint, dismissing an action for an injunction and for damages.</p>

<p>Application filed in the supreme court May 6, 1919, for a writ of mandamus to compel the superior court for King county, Jurey, J., to sign proposed findings, conclusions and judgment in an action of replevin.</p>

<p>Appeal from a judgment of the superior court for Ferry county, Neal, J., entered September 19, 1918, upon finding's in favor of the plaintiffs, in an action to compel the mayor of a city to countersign a municipal warrant, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered June 1,1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for a breach of promise.</p>

<p>Highways (13)—Establishment—Petition—Sufficiency. Rem. Code, § 5623-4, providing for a petition for a county road by ten ox-more householders does not require that the petition state that they are householders, and where it was signed by ten or more residents and taxpayers and evidence was taken and acted upon, it will be presumed that the county commissioners were satisfied that they were householders.</p> <p>Eminent Domain (120)—Proceedings—Necessity of Answer, In condemnation proceedings for a county road, no answer is necessary, and it is therefore not error to sustain a demurrer to an answer or in refusing to allow a second answer.</p> <p>Eminent Domain (158)—Review on Certiorari—.Record. On certiorari to review proceedings to condemn a county road, the absence of evidence in the record does not show that no evidence was received, where the clerk’s certificate merely stated that the record contains a true copy of the files, and the judgment recited that the order of necessity was made upon testimony received.</p> <p>Same (158). On certiorari to review an order of necessity for the condemnation of land' for a county road, sufficiency of the facts cannot be reviewed where the evidence was not brought up.</p>

<p>Principal and Agent (34)—Authority of Agent—Sales—Evidence—Sufficiency. Where the lease of a box factory required the lessee to finish and market certain stock on hand belonging to the lessor, receiving therefor actual cost and ten per cent added together with reasonable commissions, the lessee was clothed with apparent authority to sell the stock and receive payment for the same.</p> <p>Same (35, 42)-—Collection of Debts-—Powers of Agent—Revocation—Evidence—-Sufficiency. In such case, the fact that one of the lessors was referred to for an inventory and assisted in negotiating and consummating the sale did not revoke the lessee’s authority to make the sale and collection, especially where the buyer had reason to suppose that such lessor was acting only as agent for the owner and not as owner.</p> <p>Same (38)—Apparent Authority. As between one of two innocent parties, the loss must always fall upon the principal who has clothed an age'nt with apparent authority and enabled him to obtain an advantage over an innocent purchaser.</p> <p>Appeal (135)-—Objections—Judgment. The failure to include interest in a judgment cannot be raised for the first time in. the supreme court.</p>

<p>Evidence (27)—Presumptions—Laws of Other, States. In the absence of pleading and proof, it will be 'presumed that the laws of a sister state are the same as the laws of this state.</p> <p>Master and Servant (121-2)—Workmen’s Compensation Act— Remedies. An action cannot be maintained by an employee for injuries sustained in another state while working in an extra hazardous employment (mining) in the absence of allegation or proof as to the laws of such state, which presumptively are the same as our own, withdrawing relief for such injuries from private controversy.</p>

<p>Frauds, Statute of (37) —Sale of Goods — Memorandum—Sufficiency. A written contract satisfying the statute of frauds is shown by correspondence where the seller of wheat wrote confirming a sale of 10,000 bushels of blue stem wheat at $2.44 f. o. b. Eureka Flat points, the buyer to send check of $1,000 as margin, and the buyer, while at first failing to directly acknowledge the contract, wrote about sixty days later that he would take the wheat “bought from you last August if you will give me time,” and fixing date for first shipment subject to sight draft.</p> <p>Sales (129)—Actions for Price—Complaint—Performance of Contract. A performance of a contract for the sale of wheat and the buyer’s refusal to accept are sufficiently shown by a complaint alleging that the seller bought the grain for the purpose of supplying the buyer and held it subject to his order until he repudiated and disavowed the contract and refused to receive it.</p> <p>Sales (35)—Time for Delivery. Where a contract for the sale of wheat does not state the time for delivery, delivery may be made within a reasonable time.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered December 30, 1918, upon findings in favor of the plaintiff, in an action in unlawful detainer, tried to the court.</p>

, entered January 11, 1918, upon findings in favor of the defendant, in an action by a- trustee in bankruptcy to recover a balance due upon a building contract, tried to the court.

<p>Municipal Corporations (380, 390)—Use of Streets—Collision at Crossings—Negligence—Question for Jury. It is negligence for the driver of an automobile to “cut the corner” in turning at a street intersection, in violation of law, especially where the streets were congested with traffic.</p> <p>Same (383, 391)-—Contributory Negligence—Question for Jury. The driver of an automobile, struck by another which illegally “cut the corner,” is not guilty of contributory negligence in not anticipating that the other car would violate the law, but assumed that it would continue legally, and gave all his attention to a crowd of people congregated on the corner he was approaching.</p> <p>Damages (62)—Measure of Damages — Injuries to Personal Property. Plaintiff, whose car was damaged in a collision, is entitled to recover the cost of repairs and for time lost while the repairs were in progress.</p>

<p>Appeal from a judgment of the superior court for Grant county, Hill, J., entered February 21,1918, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Carey, J., entered January 16, 1919, upon granting a nonsuit, dismissing’ an action for personal injuries sustained by a machinist’s helper in shaping a forging.</p>

<p>Indemnity (7)—Principal and Surety (52)—Building Contracts— Bond — Limitations. A limitation in a contractor’s bond requiring suit to be commenced within six months after the time fixed for the completion of the work is not controlling where there was a valid excuse for delay; and the surety company is foreclosed from raising the point where it induced delay until lien claims could be adjudicated in pending litigation.</p> <p>Indemnity (10-1)—Principal and Surety (47)—Defenses. It is no defense to an action upon a contractor’s bond that the principal was not made a party, as required by the bond, where an order was made and complied with making him a party and an unsuccessful effort made to serve him, and no further insistence on the point was made, although the surety produced him as a witness.</p> <p>Same. A change in the plans and specifications increasing the cost more than twenty per cent, in violation of the terms of the contractor’s bond, is not a defense to the action, where the extra liability was incurred through the unauthorized act of the architect without the owner’s knowledge, and beyond the powers conferred in the contract.</p> <p>Same. Such a change in the plans and specifications will not defeat an action on the bond where the same was known and explained to surety’s agent, when application for the bond was made, the plans and specifications being already abandoned before the bond was signed.</p> <p>Principal and Agent (50)—Undisclosed Principal—Right of Action. The fact that the general manager and agent of the owner was named as the obligee in a contractor’s bond as the owner does not preclude the actual owner from bringing an action on the bond in its own name.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered December 21, 1918, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained in a collision between a motorcycle and an automobile.</p>

Application filed in the supreme court June 13, 1919, for a writ of mandamus to compel the state auditor to issue warrants to the relators.

<p>States (26, 27)—Appropriations — Requisites — Operation and Effect. The courts cannot inquire into the motives or impeach the judgment of the legislature in appropriating in the general appropriation hill the sum of $5,000 for the relief of Governor Lister, notwithstanding the nature of the service or value given to the state is not stated in the bill.</p>

<p>Drains (7)—Districts—Powers—Statutes. A diking district organized under Rem. Code, § 4091 et seq., becomes a legal entity as a public corporation, and its commissioners, under §§ 4104, 4122, have discretionary powers which will not be reviewed by the courts in the absence of fraud.</p> <p>Same (7)—Districts—Powers—Control by Courts. There is no sufficient evidence of fraud or arbitrary action by commissioners of a diking district to warrant interference by the courts, where it merely appears that there was a difference of opinion as to the necessity for the more elaborate improvements decided upon by the commissioners and increasing the cost, and a conflict in the evidence as to whether the attorney employed by them expected to profit in some improper way in the letting of the contract and the sale of bonds.</p> <p>Same (13-1)—Districts—'Liabilities—Contracts—Validity. It cannot be said that the commissioners abused their discretion in employing an attorney for $3,000 to do all the legal work in connection with the construction of an improvement costing $168,000, including the assessment of benefits and damages in eminent domain proceedings.</p>

<p>Appeal from an order of the superior court for King county, Jurey, J., entered September 17, 1918, requiring the plaintiff to cancel and satisfy a judgment against the defendant.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered October 23, 1918, upon sustaining a demurrer to the complaint.</p>

, entered December 7,1918, upon findings in favor of the plaintiff, for a money judgment, in an action to foreclose a chattel mortgage.

<p>Appeal (289)—Record—Statement of Facts—Service of Copy— Necessity. Under Rem. Code, §§ 389, 393, the failure to serve a statement of facts until after the expiration of the time limited is fatal to its consideration.</p> <p>Same (289). Under Rem. Code, § 1730-8, an appellant failing to serve a statement of facts within the time limited, must apply to the supreme court for leave to supply the same, upon a showing that such failure was excusable.</p> <p>Landlord and Tenant (147)—Unlawful Detainer—Double Damages. In an action of unlawful detainer of leased premises, judgment upon verdict for the plaintiff should be for double damages, regardless of whether or not the verdict was founded upon nonpayment of rent.</p>

<p>Brokers (13)—Compensation — Performance of Contract — “Sales Price”—Failure to Complete Sale. A broker negotiating a sale of chattels for a commission of five per, cent of the “sale price” is entitled to his commission, although the sale was not consummated, where the seller refused to carry out the sale on the terms agreed to.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered September 7, 1918, upon findings in favor of the plaintiffs, in an action of unlawful detainer.</p>

Appeal by plaintiffs from a judgment of the superior court for Walla Walla county, Mills, J., entered April 5, 1918, in favor of the plaintiffs for the sum of $515, upon setting aside a special finding of a jury in favor of the defendant.

<p>Application filed in the supreme court June 2, 1919, for a writ of mandamus to compel the superior court for King county, Frater, J., to fix the amount of a supersedeas bond on appeal.</p>

<p>Guardian and Ward—-Authority — Investments—Liability. A guardian for an insane person is liable for money lost through the failure of a bank where, by a specific order, he was directed to invest the money upon real estate security to be approved by the court, and without such approval he invested it in certificates of deposit of such bank, where it remained until the bank failed; and it was immaterial that the trial judge was orally informed of such investment.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Beynolds, J., entered October 18, 1918, in probate, setting aside the final account of a guardian.</p>

, entered September 28, 1918, upon the verdict of a jury rendered in favor of the defendant, by direction of the court, in an action for fraud.

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered October 1, 1918, dismissing a prosecution for violating the road traffic law, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered January 6, 1919, dismissing an appeal from a city council’s confirmation of a local' assessment.</p>

, entered February 6, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a stevedore.

<p>Appeal from a judgment of the superior court for Clallam county, Ealston, J., entered September 5,1918, reversing on appeal the rejection of a claim by the industrial insurance commission.</p>

<p>Master and Servant (121-2)—Injuries to Servant—Remedies Under Workmen’s Compensation Act —Partial Disability — Recovery por Dieeerence in Earning Power—Statutes—Construction. In view of Rem. Code, § 6604-5 (d), providing that, in case of recovery and partial restoration of earning power by an injured workman, payments shall continue in the proportion which the new earning power shall bear to the old, a remittitur on appeal and judgment therein, under a decision quoting the statute and directing the insurance department to make such an order for compensation as will reasonably cover the difference in the wage-earning power, means no more than that the award shall be in the proportion which the new earning power shall bear to the old.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Hill, J., entered September 25, 1918, upon findings in favor of the defendant, dismissing an action to recover taxes paid.</p>

<p>Appeal by landowners from a judgment of the superior court for Whitman county, McCroskey, J., entered November 25, 1918, upon the verdict of a jury awarding damages in eminent domain proceedings.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered April 12, 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 Spokane county, Huneke, J., entered December 8,1917, upon a trial and conviction of arson.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered February 8, 1919, upon granting a nonsuit, dismissing an action on contract.</p>

<p>Appeal (389)—Pleading (189, 211)—-Variance—Prejudicial Effect. In an action for the value of fruit shipped by defendant, a variance between an allegation that plaintiff turned over exclusive control of the fruit to defendant and proof that the plaintiff retained control and power of disposition, is not fatal, where defendant was apprised thereof at the beginning of the trial and did not claim surprise or ask a continuance.</p> <p>Corporations (17)—-Evidence of Existence. The existence of a corporation may he shown by parol evidence.</p> <p>Appeal (449)—Harmless Error—Exclusion of Evidence. The exclusion of oral evidence as to the existence of a corporation, while erroneous, is not prejudicial where it was wholly immaterial.</p>

<p>Principal and Agent (6)—Evidence of Agency—Admissibility. Where there was no proof that an agent had made a contract to buy certain junk, or had authority to do so, it is not error to exclude evidence of agency generally.</p> <p>Same (39)—Evidence as to Authority'—Admissibility. Upon an issue as to an agent’s authority to buy junk for defendant, a special agency to make contracts with another particular person is immaterial.</p> <p>Same (37)-—Powers—Collecting Agent—Power to Modify. A collecting agent presumptively has no authority to rescind a contract, and where he was advised by wire not to do so, the jury is properly instructed that, as a matter of law, he had no power to modify the contract.</p>

<p>Larceny (2)—Property Subject—Outlawed Whiskey. Whiskey, although outlawed and unlawfully held by one whose possession the law did not protect, may be the subject of larceny.</p> <p>Same (6)-—Information—Sufficiency. An information for the larceny of whiskey which alleged that it was taken by the “trick and device” of defendant’s appearing as a police officer, does not show on its face that it was taken into the custody of the law.</p> <p>Same (34)—Trial—Instruction. In a prosecution for larceny, an instruction as to the value necessary to constitute grand larceny is not prejudicial in failing to state all the elements of the offense, where such elements were stated in other instructions.</p> <p>Same (3, 10) —-Fraud or Appropriation — Information—-Sufficiency. An information for the larceny of whiskey charging that defendant obtained it by the “trick and device” of appearing as a police officer, and so having obtained it, did feloniously take and appropriate it to his own use, sufficiently charges the act of taking and appropriation as one continuous transaction, and is therefore not confined to larceny by embezzlement by a public officer as defined in Rem. Code, § 2601, subd. 3.</p> <p>Same (34)—Trial—Instructions. Under such an information, instructions submitting the question of guilt in the original taking, and in appropriating it to his own use following the original taking, are proper, since these two theories of guilt are not inconsistent.</p>

<p>Appeal from an order of the superior court for Spokane county, Webster, J., entered January 28, 1919, forfeiting the hail of a defendant charged with larceny.</p>

<p>Applications filed in the supreme court April 19, 3919, for writs of mandamus to compel the state land commissioner to issue leases for certain state grazing lands.</p>

, entered March 27, 1919, upon findings in favor of the intervener, in an action to recover dividends upon mining stock, tried to the court.

<p>Appeal from a judgment of the superior court for Grant county, Grimshaw, J., entered November 20, 1918, upon findings in favor of the plaintiffs, in an action for a writ of mandamus, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered June 4, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from an order of the superior court for Walla Walla county, Mills, J., entered November 15, 1918, distributing the estate of a decedent and allowing a claim against the estate, after a hearing before the court upon the final account of the administratrix.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Truax, J., entered August 3,1918, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Negligence (3)—Fires—Liability—Care to Prevent Spreading. Liability for starting a fire on one’s own land, wbicb spread to adjoining property, must be based on negligence, i. e., failure to act as a reasonably prudent person would under like circumstances.</p> <p>Same (3, 38)—Fires — Failure to Control — Evidence—Sufficiency. There is no evidence to justify a finding of negligence by a logging company in burning a camp-site under direction of a Federal forest ranger, where, for two or three days there had been no fire except a smouldering root near the center of the camp which could not be extinguished, and an experienced watchman was left and visited the property hourly prior to the fire and discovered it soon after it broke out, and it could not be checked because of an unusual wind.</p> <p>Same (3, 15)—Fires—-Proximate and Intervening Cause. A strong wind but for which no loss would have occurred, and which arose some days after a logging company had burned a camp-site and extinguished all fire except a smouldering root, is an intervening cause which relieves from responsibility for the original fire, even if defendant had been guilty of negligence.</p>

, entered February 13, 1919, denying the vacation of an order setting aside property of an estate to a widow as a homestead, after a hearing before the court.

<p>Sales (182) —Conditional Sales — Default in Payment — Evidence—Sufficiency. The weight of the evidence sustains findings that the purchaser of a sawmill under a conditional sales contract was in default, entitling the vendors to forfeit the contract, notwithstanding conflicting evidence as to a verbal extension of time, there being evidence that the extension was for but two weeks, and that the purchaser defaulted on demand made thereafter.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered December 23, 1918, in favor of the defendants, in an action to set aside deeds for fraud, tried to the court.</p>

Application filed in the supreme court July 2, 1919, for a writ of mandamus to compel the secretary of state to return referendum petitions to the several registration officers for certification of signatures.

<p>Corporations (115)—Officers and Agents — Employment — Removal. Under Rem. Code, § 3683, authorizing corporations to appoint “officers, agents and servants,” to require security of them, and to “remove them at will,” the term “servants” includes one employed by a railroad company as a switchman, and ‘is not restricted to employees in a fiduciary capacity.</p> <p>Evidence (27)—Presumptions—Laws of Other States. In the absence of pleading or proof, the law of the contract made in a sister state is presumed to be the same as our own.</p> <p>Contracts (174)—Actions for Breach — Pleading — Illegality. In an action upon a contract which is, upon its face, void and unenforcible, as a matter of law, the defendant may invoke Its invalidity as a defense without specially pleading it.</p> <p>Holcomb, C. J., dissents.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered April 27, 1918, dismissing an action for breach, of covenant, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered January 10, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for the wrongful death of a window washer, after a trial on the merits.</p>

, entered July 5,1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee of a mining company.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered March 19, 1919, upon findings in favor of the defendant, in an action of forcible entry and detainer, tried to the court.</p>

<p>New Trial (23)-—Grounds—Conflicting Evidence. Error cannot be predicated upon the refusal to grant a new trial for insufficiency of conflicting evidence which made a case for the jury.</p> <p>Tbial (89)—Inconsistent or Contradictory Instructions. In an action by a tenant for loss of crops through the landlord’s breach of covenants to install a pump, in which defendant put in issue the plaintiff’s allegation as to due care in attending an orchard, and set up a counterclaim for loss of defendant’s share of the crop, instructions withdrawing the counterclaim on defendant’s failure to show the amount of the damage are not misleading or inconsistent with instructions requiring the plaintiff to show that he substantially performed the contract.</p> <p>Appeal (433)—Harmless Error—Favorable to Appellant. In an action to recover substantial damages, error in instructing that nominal damages can be recovered if there was a breach of the contract and no substantial damages proven, is error favorable to the plaintiff of which he cannot complain.</p> <p>Pleading (112, 113)—Amendment—Change in Cause oe Actions. In a tenant’s action for damages for breach, of the landlord’s contract to install a pump, it is not error, at the conclusion of the evidence, to refuse an amendment of the complaint to show fraud and false representations inducing plaintiff to enter into the lease, as it would change the form of action and require a retrial.</p>

<p>Cross-appeals from a judgment of the- superior court for Whatcom county, Hardin, J., entered February 8, 1919, upon findings favorable to the plaintiff, in an action for a writ of mandate to- compel the issuance of a salary warrant.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster,-J., entered September 13, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered November 30, 1918, in favor of the plaintiff, in an action to cancel the assessment for a local improvement, tried to the court.</p>

Appeals from a judgment of the superior court for Yakima county, Taylor, J., entered March 2,1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a defective sidewalk.

<p>Nuisance (2)—What Constitutes Private Nuisance — Undertaking Establishment—Injunction. Under Rem. Code, §§ 943, 8309, defining nuisance, and adding to the common law definition a new element—“the comfortable enjoyment of one’s property”—an undertaking establishment and morgue, conducted in an old dwelling out of repair in the residential section of the city in such a manner as to affect the peace of mind and destroy the property values of the neighborhood will be enjoined as a nuisance.</p>

<p>Joint Adventures—Partnership (1, 2)—Community of Interest —Sharing Profits as Rent. -A partnership or joint adventure is not constituted by an agreement called a farm lease, with the usual provisions as to subletting, reentry, control and farming, which gave the lessor one-third of the crop for rent and one-third for use of equipment and its upkeep to be furnished by the lessor, the lessee to pay the cost of operation, and the balance of the crops, with increase of the stock, to be divided equally, where it contained no agreement that the lessor should share in the losses; but the same will be construed to be a lease creating the simple relation of landlord and tenant only.</p> <p>Landlord and Tenant (17)—Transfer of Reversion—Rights and Liabilities of Grantees and Tenants — Construction of Lease. Under a farm lease of two farms, whereby, for a share of the crops and increase in the stock, the tenants were to operate the farms with equipment furnished by the landlord, upon a sale of the upper farm subject to the lease, the vendee thereof and the tenants could cancel the lease as to such farm and surrender possession to such vendee; and subsequent purchasers of the other farm and all the equipment, subject to the lease, had no right to oust the other vendee in virtue of any right they might have to compel the tenants to perform the contract by using the equipment on the farm first sold; their remedy, if any, being against the tenants for breach of contract.</p>

<p>Evidence (185)—Opinion Evidence—Special Knowledge—Values. In a subcontractor’s action for an accounting upon a county building contract, the superintendent for the county is a competent witness as to the amount and reasonable value of extras claimed, even though his allowance thereof as superintendent may not have been conclusive under the contract.</p> <p>Contracts (101)—-Construction — Extras. In an action on a subcontract, requiring performance “in strict accordance” with the general contract, which plainly provided for bronze window casings, plaintiff cannot claim that his contract provided for galvanized iron, and that the bronze constituted an extra.</p> <p>Costs (4, 17)—Apportionment—Equity—Discretion. The apportionment of costs in an equitable suit rests in the discretion of the court.</p> <p>Same (4). A subcontractor’s action on a contract for a county building is an equitable one, in which costs may be apportioned, where it seeks a restraining order against the county and involved a long accounting between the parties, and the complaint on its face was in the nature of a lien foreclosure.</p> <p>Same (8)—Prevailing Party—Excessive Claim. Where plaintiff, in an equitable case, filed an outrageously excessive and fraudulent claim for extras and falsely testified that it was correct, and the amount allowed him was never disputed, costs are properly awarded in favor of the defendants.</p>

<p>Chattel Mortgages (49, 50) —Rights and Liabilities — Use by Mortgagor—Conversion or Injury to Property. Notwithstanding a chattel mortgage creates a lien only and conveys no title, a mortgagor of abstract books has no right to impair the security by taking and selling photographic reproductions of the books, in view of Rem. Code, § 1111, giving the mortgagee the right to maintain an immediate action for foreclosure, if there is reasonable cause to believe that the property will be destroyed, lost, or removed, and § 3669, making injury to the same a misdemeanor; since making the secret information public must be considered an unlawful destruction of the security.</p> <p>Same (78)—Foreclosure-—Sale — Property Included — Photographic Copies of Abstract Books Wrongfully Taken. Without deciding whether a chattel mortgage of abstract books covers photographic reproductions unlawfully taken by the mortgagor and sold to a third person, a decree of foreclosure and sheriff’s sale particularly describing the books only, does not pass title to the copies, or authorize a possessory action to recover the copies.</p>

Cross-appeals from a judgment of the superior court for King county, Dykeman, J., entered January 22, 1919, upon findings in favor of the plaintiff, except as to an offset, in an action for damages for breach, of warranty, tried to the court.

<p>Evidence (100)—Deolabations—Self-Serving — Admissibility of Evidence of Nondelivery of Deed. Where a deed was made to a minor and delivered to the grantor’s attorney and came into the possession of the grantor’s administrator, it is admissible to show the statements of the grantor, after she had conveyed the land to another, that the deed was made at the suggestion of her attorney in anticipation of suits, and was to be returned to her when called for, and that she had requested its return; since, she then had no self interest to subserve.</p> <p>Same (42)—Competency—Motive or Intent. If the intention 'of the grantor in delivering a deed is doubtful, evidence of subsequent acts of the grantor is competent as to the intention at the time of delivering it to a third person.</p>

<p>Master and Servant (20-1)—Workmen’s Compensation Act — “Workshop”—-Statutes. A gas company’s» general office for clerical work in which a clerk operated a power-driven machine to make zinc plates or stencils for printing gas bills is a “factory” or workshop, within the meaning of the workmen’s compensation act, Rem. Code, §§ 6604-3, 6604-4, precluding actions for personal injuries by employees.</p> <p>Same (20-1)—Extra Hazardous Employment—Operating Stencil Imprintor. The operation of a power-driven machine to make zinc plates or stencils for printing gas bills, by a woman clerk employed in the general office at clerical work for the larger part of the time, is “extra hazardous,” within the workmen’s compensation act, Rem. Code, §§ 6604-3, 6604-4, precluding actions for personal injuries by employees: and it is immaterial that, when the machine was in perfect order, injury was practically impossible.</p> <p>Same (121-2)—Workmen’s Compensation Act—Remedies—Statutes—Amendment. Laws 1917, p. 487, amending Rem. Code, § 6604-8, relating to employers who are in default in contributing to the accident fund, does not preserve to the injured workman a right of action against such an employer.</p>

, entered October 1, • 1918, setting aside an order of the county school superintendent. changing the boundaries of a school district, on review of the decision of the board of county commissioners affirming the order.

<p>Chattel Mortgages (1)—Adsolute Transfer as Mortgage. A bill of sale to a bank cashier of a donkey engine, purchased for the use of loggers, was not intended as a chattel mortgage to secure the loggers’ note for $300 advanced by the bank, where the agreement gave the makers of the note an option to pay it and take title to the engine, or to pay a sum agreed upon as rental for the engine and take back the note; since there was no obligation to pay the note and there could be no security for a debt when there was no debt.</p> <p>Evidence (147, 149) —Parol — To Vary Writing — Contract for Sale of Chattel. A written agreement for the absolute transfer of a donkey engine, showing that it was not security for a debt, cannot be varied by parol evidence drawing conclusions from the transaction that it was intended as a chattel mortgage.</p> <p>Sales (89)—Tender (10-1)—Transfer of Title—Effect of Tender. Under an agreement to transfer a donkey engine upon payment of an agreed price within a certain time, timely tender does not operate to transfer the title.</p> <p>Reflevin (6) —Tender (10-1) —Title of Plaintiff — Effect of Tender. Replevin presupposes title in the plaintiff, and does not lie on timely tender of the price of a donkey engine; but the remedy is for breach of contract or specific performance.</p>

<p>Pleading (104, 114)—Amendment to Conform to Proof—Effect. After allowance of a trial amendment to the complaint to conform to proof, plaintiff is entitled to the benefits of the proofs which supported the complaint as amended.</p> <p>Brokers (7)—Trover and Conversion (4)—Question for Jury— Sale of Mining Stock. A prima facie case of conversion and a question for the jury is made where there was evidence that defendants, as brokers, sold eleven thousand shares of plaintiff’s mining stock, falsely representing that they had sold but one thousand shares, and delivered the shares to make good another sale made on the account of another.</p> <p>Same. In such a case, the acceptance by plaintiffs of a return of the shares withheld does not waive the conversion, where the acceptance was conditional and at an agreed price less than its value at the time of the conversion.</p> <p>Evidence (48)—Competency—Market Value—Sales. The price at which mining stock was sold on the exchange on a certain day is competent evidence of its market value at that time.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered May 18, 1919, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>New Trial (40)—Grounds—Newly Discovered Evidence. It is not an abuse of discretion to refuse a new trial for newly discovered evidence as to the falsity of testimony given, where it came to the party’s knowledge before the close of the trial and was not disclosed or made known until long afterwards; especially where it would only have been cumulative and at best of little weight.</p> <p>Evidence (102, 105)—Declarations as to Boundaries—Hearsay —Oral Statements. Upon an issue as to a disputed boundary line, evidence of declarations of a former owner are inadmissible, where such owner was living and could have been produced to testify, his statements having been made only a few days before.</p> <p>Adverse Possession (25) —Extension to Pences. Although a fence was erected under a mistake of fact as to the true location of the boundary, exclusive possession under claim of right to such fence for seventeen years ripens into title by adverse possession.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered May 2, 1918, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from an order of the superior court for Klickitat county, Darch, J., .entered July 8, 1918, adjudging the plaintiff to be in contempt of court and sentencing her to imprisonment.</p>

<p>Deeds (15)—Delivery—Deed to Property Devised—Effect. To be valid, a deed by a testator to a devisee must have been delivered in his lifetime; and passes title to the estate at the date of delivery, leaving nothing for the will to operate upon.</p> <p>Wills (70-1)—Construction—Conditions — Forfeiture Through Contest. Where title to land devised had passed under a deed to the devisee, delivered during the testator’s lifetime, it would not be forfeited by the grantee’s contest of the will, under the forfeiture clause in the will in case of contests by beneficiaries.</p> <p>Estoppel (33)—Grounds—Inconsistent Claim in Prior Litigation. Where, on a contested claim, the executor asserted that the claim was satisfied by a deed to the claimant, who was also the devisee, and that title passed by the deed rather than by the will, the executor is estopped, in a subsequent will contest by the devisee, from asserting that title passed by the will rather than the deed and that the devise was forfeited by the will contest, under the forfeiture clause in the will.</p> <p>Judgment (222)—Conclusiveness—Bar—Matters Actually Litigated. A judgment on a contested claim against an estate that the claim had been satisfied by a deed of property also devised to claimant, is res judicata in a subsequent will contest, and conclusive that the deed was delivered and that the title passed to the devisee at the time of the delivery of the deed, rather than by the will at the date of testator’s death.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered March 11, 1919, upon remittitur from the supreme court, in an action to enforce a claim against an estate.</p>

<p>Sales (177, 178)—Conditional Sales — Operation as to Third Persons—Transfer of Title. The reserved title of the vendor of machinery under a conditional sales contract is not affected by the fact that it was knowingly purchased by a contractor to be installed in a municipal power plant; especially where the contract did not authorize the vendee to dispose of the property to the city, but expressly reserved title until fully paid for “whatever may be the mode of its attachment to realty or otherwise.”</p> <p>Same (176, 178)—Conditional Sales — Recording — Actual Notice. Constructive notice by recording a conditional sales contract is not essential to protect the vendor’s title, where the city had actual notice, prior to installation, that the machinery for a power plant was sold to the contractor under a conditional sales contract reserving title in the vendor, and that the purchase price was not paid.</p> <p>Sales (180, 183)—Conditional Sales—Election of Remedies by Seller—Against Third Persons. Where machinery was conditionally sold by plaintiff to a contractor to be installed in a municipal power plant, a complaint primarily seeking recovery of the machinery after it was installed, but alleging that the city agreed and assumed to pay the balance due, and in the prayer presenting an alternative for the recovery of the balance due upon the purchase price, does not show an election on the part of plaintiff to waive title to the machinery and sue for the price.</p> <p>Municipal Corporations (565)—Claims — Presentation. The filing of a claim against a city is not a condition precedent to action the gist of which was to recover machinery conditionally sold to a contractor and installed in a city power plant, notwithstanding an alternative prayer in the complaint offering to take judgment against the city for the balance due on the purchase price, which it is alleged the city assumed and agreed to pay.</p> <p>Sales (177)—Conditional Sales—Title of Vendor—Attaching Property to Real Estate. The title to machinery conditionally sold to be installed in a municipal power plant does not pass to the city on attaching the machinery so as to become part of the real estate, contrary to the express terms of the conditional sales contract.</p> <p>Municipal Corporations (181)—Sales (183)—Remedies on Contractor’s Bonds—Materialmen Under Conditional Sales Contract. The vendor in a conditional sales contract of machinery sold to a contractor for a municipal power plant may pursue the property under the contract, and is not restricted to a remedy by action upon the contractor’s bond, under Rem. Code, § 1159, relating to security for laborers and materialmen furnishing supplies for public improvements.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered March 4, 1918, upon findings in favor of the plaintiff, in an action for damages, tried to the court.</p>

<p>Bills and Notes (7) —Consideration — Postponement of Debt. The postponement of an obligation to a future date by the giving of a new note is a new and present consideration for the giving of the note.</p> <p>Same (9)—Consideration—Accommodation Paper. The signing of a note as accommodation party, although without receiving consideration, obligates the party on the note.</p> <p>Husband and Wife (29, 74)—-Separate Debts—Contracts With Husband Jointly. A note by a husband and wife for an obligation which, before their marriage, was the separate debt of the husband upon which his future wife was an accommodation party, is the separate debt of each and not their community debt; nor was its character changed by the new promise.</p> <p>Same (94)—Community Property — Judgment. In an action against husband and wife upon their joint note, which was not a community debt, the judgment should be joint and several against the defendants, but not against the community.</p>

<p>States (23-1)—Fiscal Management—Collection and Custody of Funds. Neither Rem. Code, § 5029, requiring state officers authorized to collect or receive state moneys to make daily deposits of the money collected, nor other statutes defining the duties of the state auditor and treasurer, has any application to moneys received by the Veterans’ Welfare Commission, created by Laws 1919, p. 33, for the purpose of aiding veterans of the late war and which appropriated $500,000 for such aid, but the act authorizes the commission to make loans and use the funds and repayments in their discretion for the benefit of soldiers and sailors.</p>

<p>Appeal (88)—Right to Appeal—Persons Aggrieved—Guardians. The guardian of an insane person has such a representative interest as to be an “aggrieved” party, entitled, by Rem. Code, § 1716, to appeal from an order discharging him from his trust as guardian.</p>

, entered April 26, 1919, upon findings in favor of the plaintiff, in an action on promissory notes, tried to the court.

, entered October 4, 1919, upon sustaining a demurrer to the complaint, dismissing an action for an injunction, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered April 14, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through' a defective sidewalk.</p>

' Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered January 13, 1919, upon findings in favor of the plaintiff, in an action in tort, tried to the court.

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered February 25, 1919, upon granting a nonsuit, dismissing an action on an indemnity bond.</p>

Application filed in the supreme court September 16, 1919, for a writ of mandamus to compel the superior court for Lewis county, Reynolds, J., to direct the filing of a criminal information and to proceed with the trial thereof.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered March 26, 1919, upon a trial and conviction of violating the prohibition law.</p>

<p>Schools and School Districts (29-1)—Touts—'Actions — Right to Maintain—Statutes. Laws 1917, p. 332, providing that no action shall be brought or maintained against a school district for non-contractual acts or omissions of officers or employees relating to playgrounds, applies to pending actions that had accrued prior to the enactment of the law.</p> <p>Constitutional Law (68)—Vested Rights—Right of Action in Tort. As the right to sue a school district in tort rests in statute, it is not a vested right of property; hence Laws 1917, p. 332, repealing the law, is not unconstitutional in depriving a child of his former right of action for injuries sustained on playgrounds prior to the enactment of the law.</p>

<p>Trial (54) —Questions of Law or Fact — Uncontroverted Evidence. Where there is no substantial .conflict in the testimony, whether a promise was a collateral one to answer for the debt of another, or an original undertaking, is one of law.</p> <p>Frauds, Statute of (4)—Debt of Another—Collateral or Original Promise. An oral statement by a general contractor, to induce one employed by a subcontractor to continue on the work, to go ahead and he would see him paid, is a collateral promise to answer for the debt or default of another, and void under the statute of frauds, where the work continued as in the past with the subcontractor in charge.</p>

<p>Evidence (149, 168)—Parol to Vary Writing—Warranty in Sale of Chattels—Completeness of Writing. Upon the sale of a secondhand engine, under a written warranty expressly limited to a guarantee that it was in good working order and as described in the contract, a further warranty could not be proved by oral evidence, in the absence of fraud.</p> <p>Pleading (118)—Answer—Amendment. I.t is not error to refuse to allow an answer to be amended at the trial, where it is not plain in what respect the answer would have been amended to state a valid defense.</p> <p>Replevin (22)—Pleading—Venue. Where the sheriff’s return shows that property replevied was found in the county, error in failing to lay the venue in the complaint is cured.</p>

, entered January 14, 1919, denying a petition for the appointment of an administrator and confirming a previous appointment, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered April 25, 1919, dismissing an action to set aside a deed, tried to the court.</p>

<p>Taxation (59, 210)—Valuation of Property—Excessive Assessment—Evidence—Sufficiency. An assessment for taxation is so excessive as to be constructively fraudulent, where like property on four sides was assessed only one-fourth to one-seventh as much, and the assessor employed a minimum rate without considering the fair market value, which other evidence showed was only one-fifth as much as the assessment.</p>

<p>Application filed in the supreme court September 30, 1919, for a writ of prohibition to prevent the superior court for Yakima county, Taylor, J., from hearing a cause, and to compel the transfer to another department of the court.</p>

<p>Appeal (445, 456)—Harmless Error — Argument of Counsel. Error cannot be predicated upon impropriety in argument of counsel that was corrected by prompt and adequate instructions.</p>

<p>Husband and Wife (87) —-Community Property — Personal Injuries to Wife—Actions—Parties. A wife, living with her husband, cannot, in the absence of any reason for not joining him, maintain an action alone for personal injuries, since the same is community property in the sole management and control of the husband, under Rem. Code, § 5917.</p>

, entered January 15, 1919, upon findings in favor of the plaintiff, in an action to reinstate a chattel mortgage and for a foreclosure, tried to the court.

<p>Appeal from an order of the superior court for King county, Reynolds, J., entered February 10, 1919, approving the final account of an administrator, after a hearing before the court.</p>

<p>Vendor and Purchaser (60) — Rescission by Vendee — Fraud-Reliance on Representations. Purchasers of lots in a townsite in the far north of Canada, may rely on representations of the vendor as to the value and situation of the property; and recover purchase price paid on sales induced by false representations.</p>

<p>Sales (176)—Conditional Sales — Recording — Signature or Vendor. Under Rem. Code, § 3670, requiring all conditional sales contracts to be signed by the vendor and vendee, a contract is not sufficiently signed by the vendor by appending at the foot in typewriting as follows: “Times Square Garage, By........................Vendor”</p> <p>(Holcomb, C. J., dissenting).</p>

, entered February 1,1919, upon granting a nonsuit, dismissing an action for a partnership accounting, tried to the court.

<p>Application filed in the supreme court October 16, 1919, for a writ of prohibition to prohibit the superior court for Pierce county, Card, J., from further proceeding with a cause.</p>

Application filed in the supreme court June 27,1919, for a writ of mandamus to compel the commissioner of public lands to issue a lease for state lands for prospecting purposes.

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered January 13, 1919, upon finding's in favor of the plaintiffs, after a trial to the court and a jury, in an action for equitable relief.</p>

<p>Appeal from a judgment of the superior court for' King county, Jurey, J., entered February 3,1919, upon findings in favor of the defendants, in an action in tort, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Prater, J., entered November 27, 1918, upon findings in favor of the plaintiff, in an action in ejectment, tried to the court.</p>

<p>Appeal (198)—Bond—Sureties—Competency. Upon appeal from a judgment entered against a nonresident plaintiff and the sureties upon bis cost bond, an appeal bond with the same sureties is insufficient.</p> <p>Same (207)—Bond—Amendment. An appeal bond with part of the appellants as sureties, is not amendable.</p>

<p>Insurance (196)—Mutual Benefit Association — By-Laws — Presumptions. The by-laws of a mutual benefit association are binding on all its members, who are conclusively presumed to know them, although adopted subsequent to the contract.</p> <p>Same (196). A member of a mutual benefit association who fails to report and pay extra premiums for a more hazardous employment engaged in, thereby changes the amount of his life benefit, where the by-law provides for an increased rate and that, unless the change is reported and extra rate paid, the benefit paid for accidental death shall be $300 on the basis of a $1,000 certificate.</p>

<p>Appeal (51)—Decisions Reviewable—Obdee Vacating Default. An order vacating a default judgment is not appealable.</p> <p>Judgment (34)—Default—Proof. The taking of proof ex parte after default does not make the judgment other than one by default.</p>

, entered March 30, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee on a vessel.

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered April 22, 1918, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action by a partner to recover money advanced to the partnership.</p>