Volume 109 — Washington Reports

, entered December 13, 1918, denying the right to payment of a claim against the estate of a decedent, after a hearing upon objections to the final account of the administratrix.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered March 10, 1919, upon trial and conviction of manslaughter.</p>

<p>Intoxicating Liquors (48)—Illegal Possession — Burden of Proof. In a prosecution for illegal possession of intoxicating liquors, the burden is upon the defendant to show that he was not a clergyman, priest or rabbi, excepted by Laws 1917, p. 61, § 12.</p> <p>Same (50)—Evidence—Sufficiency. A conviction of the illegal possession of intoxicating liquor is sustained by proof that, during a search of the premises, accused threw a broken demijohn from the window, and intoxicating liquor was found dripping from it and on the floor and wall of the room.</p>

<p>Criminal Law (107)—Evidence oe Other Oeeenses. In a prosecution of two persons for opening and carrying on a gambling game as owners or managers, on a certain date, evidence of like offenses in the same place on other days in which both participated is admissible not only for the purpose of showing that defendants were operating the game in question, but to show their interest as owners or managers; as the offense may be committed by a series of acts.</p> <p>Gaming (17)—Evidence—■Sufficiency. A conviction of conducting a gambling game as owner or manager is sustained by evidence that accused was one of the owners of the premises and furniture, and was present and participated in the game.</p>

<p>False Pretenses (16)—Evidence—Sufficiency. In a prosecution for attempted larceny by false pretenses in a telephone order for goods, accused’s connection with the person telephoning is sufficiently shown by her attempt to receive the goods at the appointed place, together with her subsequent explanations' and behavior.</p> <p>Same (4)—Defenses — Attempt Unsuccessful. A prosecution for attempted larceny by false pretenses in a telephone order for goods does not fail because the attempt was unsuccessful.</p> <p>Same (13)—-Evidence—Admissibility. In a prosecution for attempted larceny by false pretenses in a telephone order for goods, evidence of the telephone conversation is admissible as part of the transaction, regardless of the fact that its probative effect depended upon the evidence to connect the accused therewith.</p> <p>Indictment and Information (104)—Conviction of Attempt. Under Rem. Code, § 2263, one informed against for larceny by false pretenses may be convicted of an attempt to commit the offense.</p>

<p>Appeal from a judgment of the superior court -for King county, Smith, J., entered February 3,1919, upon sustaining a demurrer to the answer and cross-complaint, in an action to quiet title.</p>

<p>Schools and School Districts (34)—Bonds—Power to Issue— Conditions—Statutes. After the taking effect on June 12 of Laws of 1919, p. 216, § 12, amending Rem. Code, § 4607, and providing that school district bonds for erecting permanent buildings shall be made payable in semi-annual installments, the school district has no power to issue or sell bonds payable in ten years, in conformity to the former law, notwithstanding the issue was authorized by an election and adjudged by a court to be valid before the amendment of 1919 took effect.</p> <p>Constitutional Law (72)—Obligation op Contracts—Contracts op State and School Districts. Laws of 1919, p. 216, § 12, amending Rem. Code, § 4607, and changing the requirements as to school district bonds, did not impair the obligation of any contract as to contemplated bonds that had been previously authorized under the former law, where such bonds had not been issued or the state’s bid therefor accepted prior to June 12, 1919, when the amendment took effect.</p> <p>Judgment (227, 229)—Conclusiveness — Bar — Matters Not in Issue or Which Could Not Have Been Adjudicated. A judgment on the merits to the effect that a school district was legally authorized by vote of the electors to issue bonds conditioned in compliance with the law then in effect, entered prior to the taking effect of Laws of 1919, p. 216, § 12, amending Rem. Code, § 4607, is not an adjudication as to the right of the school district to issue and sell said bonds after the taking effect of the amendatory act which changed the requirements as to the conditions of the bond.</p>

, entered May 27,1919, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the collection of a tax.

Cross-appeals from a judgment of the superior court for King county, Jurey, J., entered April 10, 1918, upon findings favorable to the defendant, in an action by a carrier to recover freight charges, tried to the court.

<p>Criminal Law (440)—Appeal—Discretion—Sentence and Punishment. Abuse of discretion in imposing the maximum sentence allowed by law cannot be asserted in the absence of any record other than the information, plea of guilty, and judgment.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered May 12, 1919, upon findings in favor of the plaintiff, in an action on con- 1 tract, tried to the court.</p>

<p>Street Railroads (20)—Collision at Crossing — Contributory Negligence of Automobile Driver. The driver of an automobile struck by a street ear at a street intersection, was guilty of contributory negligence, as a matter of law, when it can be demonstrated that, had he looked with due care after his view was unobstructed as he testified he did without seeing any car, he would have seen the approaching car in time to have easily avoided the collision.</p> <p>Same (23)—Collision at Crossing—-Proximate Cause — Last Clear Chance. The doctrine of last clear chance does not apply where a collision between a street car and an automobile at a street intersection was caused by the contributory negligence of the driver of the automobile, and there was nothing to reasonably indicate to the motorman any purpose or lack of ability to handle the automobile with due care until after it was too late to avoid the collision.</p> <p>Death (9)—Right of Action—Defenses—Contributory Negligence. In an action for wrongful death, the contributory negligence of the husband, resulting in the death of the wife, is the contributory negligence of the community and hence precludes recovery for wrongful death of the wife.</p>

<p>Appeal (151%)—Exceptions—Time and Manner oe Taking. Under Rem. Code, § 339, providing that exceptions to instructions may be taken any time before the hearing of the motion for a new trial, oral exceptions taken immediately on the jury’s retiring and embodied in the record by the stenographer will be considered on appeal.</p> <p>Municipal Corporations (379, 392)—Use oe Streets—Negligence —Crossings—-Violation oe Ordinance—Instructions. It is error to refuse a requested instruction to the effect that a violation of an ordinance giving the right of way at intersections to the automobile on the right would be negligence as a matter of law; nor is the error cured by a negative instruction on the subject stating that such right of way was not absolute and tending to lead the jury to disregard its terms.</p> <p>Same (388) —Negligent Driving—-Evidence — Admissibility. Upon an issue as to the negligence of the driver of an automobile upon the occasion of its collision with another, it is not competent to show that he was habitually careless or accustomed to drive at excessive speed.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered May 27, 1919, in favor of the defendants, dismissing an action to foreclose a mortgage, tried to the court.</p>

<p>Infants (1)—Emancipation—Marriage. A minor son is emancipated by marriage with the consent of his parents, although it does not remove civil disabilities.</p> <p>Homestead (4)—Head op Family-—-Minor Son—“Maintained.” A widow is not entitled to claim a homestead, as having residing with her a minor son under her care and “maintenance,” within Rem. Code, § 553, where the son had been emancipated by his marriage and was himself the head of a family and was contributing to the support of the combined family rather than being maintained by his mother.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered April 22, 1919, in ; favor of the defendant, dismissing an action for 1 divorce.</p>

, entered February 3, 1919, upon findings in favor of the defendant, awarding the custody of a child, upon a hearing upon application for habeas corpus.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered March 11, 1919, upon the verdict of a jury awarding damages in condemnation proceedings.</p>

<p>Pleading (151)—Reply—Striking Affirmative Matter. Affirmative matter in a reply not constituting a defense to the plea of the statute of limitations is properly struck out.</p> <p>Limitation of Actions (37)—Continuing Contracts — Attor-. ney’s Claim for Services — Dropping Case Prom Calendar. The statute of limitations does not run against ah attorney’s claim for services performed in a' case until the termination of the action, and the action is not terminated by merely dropping the cause from the trial calendar upon entering into an agreement for a settlement, where all the matters in controversy were not fully settled.</p>

<p>Executors and Administrators (169)—Decree—Conclusiveness —Widow’s Ignorance oe Rights. Under Laws of 1917, p. 689, § 163, providing that a decree of final distribution shall be final and conclusive as to all the world, a widow is not entitled to have a decree set aside to enable her to make a claim for a homestead, on the ground that she was ignorant of English and of her rights, in the absence of a showing of fraud or grounds for the • vacation of a judgment as required by Rem. Code, §§ 464-473.</p>

, entered June 3, 1919, upon findings in favor of the plaintiffs, in an action for damages sustained in an automobile collision.

<p>Damages (98)—Pleading—Variance—General ok Special—Personal Injury. In an action for personal injuries, where the effects of the accident upon the plaintiff’s eyes resulting in a diminution of vision were fully set forth in the complaint, it is competent for an expert to give his opinion that the diminution of vision was the result of a fracture of the skull, although such fracture was not specially pleaded, there being no suggestion of surprise, defendant’s witnesses having examined plaintiff and being of the opinion that there was no fracture.</p> <p>Municipal Corporations (392)—Trial (101)—Use of Streets— Contributory Negligence—Instructions. In view of defendant’s requested instructions as to plaintiff’s duty to look for approaching vehicles while on a cross-walk, and of evidence tending to show that he was struck by defendant’s 'car while on the sidewalk, failure to give further instructions as to his contributory negligence, if he failed to look for a car while on the cross-walk, is not prejudicial error.</p>

<p>Appeal from a judgment of the superior court for Wahkiakum county, Hewen, J., entered April 4, 1918, upon overruling a demurrer to the answer, upon the hearing of an order directing a recéiver to show cause why property in his possession should not be delivered to the petitioner.</p>

<p>Principal and Surety (59)—Remedies of Surety—Against Principal After Payment of.Debt. Where one of two makers of a joint and several note signed as an accommodation maker and surety only, the other receiving all the consideration, he may, upon paying the note, recover the amount paid from his comaker.</p> <p>Evidence (150, 160)—Parol Evidence to Vary Writing—Liability of Surety on Note—Extent. As between the makers of a joint and several note, oral evidence is admissible to show that one of the parties was in fact a surety, and the other primarily liable and bound to reimburse the surety paying the note.</p> <p>Limitation of Actions (41)—Computation of Time—Reimbursement From Person Ultimately Liable. An action against the principal maker of a promissory note upon the implied obligation which arose when the surety paid it does not accrue until the note was paid, and the statute begins to run from that time.</p> <p>Same (67, 74)—Tolling Statute—Acknowledgment—Persons by Whom Made and to Whom Available. Principal and surety upon a promissory note are not within the rule that acknowledgment by one partner of a partnership debt after dissolution of the partnership does not deprive the other of the benefit of the statute of limitations.</p> <p>Same (87)—Pleading Statute as Defense—Necessity. Where a statute of limitation is pleaded in the complaint, it may be invoked by the defendant although not pleaded in his answer.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered April 19, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered March 15, 1919, upon granting a nonsuit, dismissing an action for equitable relief, tried to the court.</p>

<p>Criminal Daw (216, 217)—Trial—Unlawful Comment on Evidence. Where, during examination of a witness, counsel emphatically insinuated that the witness is testifying falsely, he is properly rebuked by reminding him that he was not a witness.</p> <p>Same (217). It is not unlawful comment, in rejecting certain exhibits the materiality of which did not then appear, to give reasons for excluding them; nor, when subsequently admitted, would the evidence be discredited because once rejected.</p> <p>Same (217). Upon a direct issue as to the credibility of one of the witnesses testifying on a material point, it is unlawful comment, within the prohibition of Const., art. 4, § 16, for the trial judge to state to the witness that his record is as good as anyone’s and that he is a perfectly credible witness and has not been impeached.</p> <p>Same (391-1)—Appeal (444)—Comment on Evidence—Cure by Instructions. Unlawful comment on the evidence of a prejudicial nature in violation of Const., art. 4, § 16, cannot be cured by instructions to the jury to disregard it.</p> <p>Criminai. Daw (292)—Instructions—Reasonable Doubt. It is error to refuse to instruct that reasonable doubt may arise from lack of evidence as well as from the evidence given, where the instructions elsewhere given did not cover the point.</p>

<p>Criminal Law (68)—Withdrawal of Plea—Vacation of Judgment. An application to withdraw a plea of guilty is addressed to the sound discretion of the court; but, in view of Rem. Code, §§ 2111, 2181, requiring such motion and motions in arrest to be made before judgment, it can only be entertained after judgment as an application to vacate the judgment; and if for irregularity or fraud, the judgment is entitled to every reasonable intendment in its support, and will be set aside only upon' a clear showing and adjudication of a prima facie defense on the merits.</p>

<p>Sat.es (144)—Remedies of Buyer—Recovery of Price. Upon a sale of hay to he measured by the buyer, which measurement was fairly made, the buyer is entitled to recover an advance made on the purchase price, where the sellers were at fault in refusing to deliver unless payment was made upon their measurements and claimed a modification of the contract which was not shown to have been made by a person having authority to make any modification.</p>

<p>Tbial (64)—Direction op Verdict—Operation and Effect of , Motion. There is no waiver of a jury trial, or conclusive submis- i sion of the merits of the case to the judge, where both parties ; moved for a directed verdict, and both motions were overruled and the.case, which was purely a law case, was submitted to the jury; ¡ and the jury’s verdict is as binding upon the court and parties as in any other ease.</p> <p>Municipal Corporations (390, 391)—Use of Streets—Automobiles—Negligence—Contributory Negligence — Question for -Jury. [ In an action for personal injuries, sustained by a pedestrian when struck by defendant’s automobile at a city street intersection, neither the negligence of the defendant nor plaintiff’s contributory negligence can be determined as a matter of law, where it appears that plaintiff, after leaving a' street car, hurried back across the street to pay the conductor his fare and while in plain view of the defendant, started back to re-cross the street in front of the de- ¡ féndant’s automobile which he had last seen about one block away, and defendant drove across the city street intersection without ; reducing his speed below fifteen miles per hour; as the questions were for the jury. ¡</p>

, entered September 24, 1919, upon findings in favor of the plaintiff, in man-damns proceedings to compel a county engineer to proceed with, highway improvements.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered December 14, 1918, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Damages (98)—Pleading—General or Special Damages. In an action for personal injuries, plaintiff cannot be required to set out or specially plead the amount of damages claimed for pain and suffering already endured, and tbe amount that will be sustained in the future, but can recover therefor under the general allegation of damages. ■</p> <p>Municipal Corporations (442)—Defective Sidewalk—Contributory Negligence. The contributory negligence of one who was tripped by the sinking of a plank in a sidewalk is a question for the jury, although plaintiff knew the walk was dangerous, where it was much used by the public and she had no knowledge of the particular defect that caused the fall; the law only requiring due care under the circumstances.</p> <p>Same (435)-—-Defective Sidewalk-—City’s Notice of Defect. Whether a city had notice that a plank in a sidewalk would sink and trip a pedestrian is a question for the jury, where the walk had been down for eleven years, the boards were decayed and loose and the condition had existed for a considerable period of time.</p> <p>Damages (108)—Evidence—Expectancy of Life. Mortuary tables are admissible in an action for personal injuries where plaintiff had not fully recovered thirteen months after the accident and it would seem that her injuries would be permanent.</p> <p>Appeal (449) — Review — Harmless Error — Admission of Evidence. Admission of mortuary tables in an action for personal injuries is harmless error, even if the injuries were not permanent.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered June 14, 1919, upon sustaining a demurrer to the complaint, dismissing an action for a writ of mandamus.</p>

<p>Appeal (406)—Review—Discretion—Grant oe New Trial. The granting of a new trial on all the statutory grounds rests in the discretion of the trial court, and will not be disturbed except for abuse of discretion.</p> <p>New Trial (55)—Order—Scope. In the granting of a new trial in an action on a contract to pay a fixed price per'foot for the digging of a well, defended on the ground that plaintiff had guaranteed to bring in water and had breached his contract by ceasing work, it is proper to permit the plaintiff to make a further test of the well, sincé he would be entitled to produce new evidence; but it is error to order that plaintiff be permitted to dig the well deeper to bring in water, since he cannot change the theory of or revive the contract after the breach.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered April 10, 1919, upon sustaining a demurrer to the complaint, dismissing an action to recover a community interest in property.</p>

<p>Certiorari (30)—Scope and Extent op Review—Merits. Under Rem. Code, § 1010, limiting the questions involving the merits upon certiorari to whether there was any competent proof of the facts necessary to be found, and, if so, whether there was such a preponderance of evidence against the finding as to warrant setting aside of a verdict by a jury, the superior court cannot weigh the evidence and split the difference between two expert witnesses, upon certiorari to review findings of a board of appeals as to unsafe buildings condemned by the city building. superintendent.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered April 9, 1919, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, in an action of unlawful detainer.</p>

<p>Appeal from a judgment of the superior court for ■ King county, Ronald, J., entered April 26, 1919, deny- , ing a petition to vacate a judgment, after a hearing 1 before the court.</p>

<p>Trial (55)—Taking Case From Jury—Sufficiency of Evidence. On defendant’s motion for nonsuit, the evidence must be viewed in the light most favorable to the plaintiff, who is not bound by unfavorable testimony of one of his own witnesses.</p> <p>Master and Servant (101) —Assumption of Risk — Promise to Repair—Liability. In order to recover for personal injuries sustained by a servant while working upon a dangerous floor covered with oil, the servant must prove (1) his complaint to the foreman; (2) assurances that the conditions would be remedied; (3) reliance on the assurances; (4) injury before a reasonable time for making the repairs; and (5) that the risks were not so imminent as to require him to stop work' notwithstanding the promise; this rule applying to the place of work as well as to the machinery.</p> <p>Same (101, 161)—Assumption of Risks—Promise to Repair—Reliance Upon—Evidence—Sufficiency. The evidence supports a finding that plaintiff, injured upon a floor covered with oil, relied upon the foreman’s promise to obtain sawdust, when it appears that for two hours repeated complaints were made, the foreman made several attempts to get the sawdust and gave assurances that he would do so, which assurances were at no time withdrawn.</p> <p>Damages (84, 88)—Excessive Damages—Injury to Leg. A verdict for $5,000 for injuries to a stevedore are not excessive, where he was seriously bruised, his knee was broken and his kidneys injured and he suffered much pain .in a hospital for seven weeks, it would probably be a year before lie could perform his usual work, he might not be able to do heavy work, and his doctor’s bills came to several hundred dollars.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Back, J., entered December 13, 1918, upon findings in favor of a certain claimant to a fund in court, in an action in interpleader.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered April 5, 1919, upon findings in favor of the plaintiff, in an action to establish a trust, tried to the court.</p>

<p>Appeal (232)—Stay—Right to and Necessity of Supersedeas. A judgment directing the payment of a fund in court which might be enforced by execution can be stayed only by the taking of an appeal and the giving of a supersedeas bond, in the absence of which it is entitled to the same respect as if all right of appeal had expired or been abandoned.</p> <p>Trusts—Execution of Trust—Payment of Judgment. A trustee distributing a fund under a decree of court is indemnified by the order and needs no release.</p> <p>Appeal (232, 244)—Supersedeas—Restitution. Pending an appeal taken after payment of a judgment distributing a fund in court to solvent parties, the supreme court will not require the trustee to make restitution to an appellant who was amply protected by Rem. Code, § 1742, authorizing restitution after final decision on the appeal.</p>

<p>Proceedings filed in the supreme court February 25, 1919, for tbe disbarment of an attorney, upon tbe findings of the state board of law examiners against tbe accused.</p>

, entered February 10, 1919, upon findings in favor of the defendant, in an action for personal injuries, tried to the court.

<p>Municipal Corporations (566, 567)-—Claims—Sufficiency—Vari-ance. Under a claim against a city for overflowing certain described tracts of land, damages to other lands cannot be recovered, in view of the city charter requiring all claims to contain the items of damages and to accurately describe the injury, as a prerequisite to action.</p> <p>Same. Under a claim against a city for overflowing all of plaintiffs’ lands, recovery may be had for damages to only part.</p> <p>Waters and Water Courses (72)—Action for Flowage—Act of God—Evidence—Sufficiency. Where floods are not unprecedented, and higher floods had occurred in prior years, they are not within the rule of nonliability as acts of God.</p>

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered March 21, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by the driver of a horse frightened by defendant’s automobile.</p>

<p>Appeal from a judgment of tlie superior court for King county, Hall, J., entered July 2, 1919, upon the verdict of a jnry rendered in favor of the plaintiff, in an action on contract.</p>

<p>Prohibition (38)—Application—Evidence and Presumptions— Burden op Proof. On prohibition to restrain a judge from admitting to bail persons charged with murder in the first degree, the presumption is in favor of a return alleging a proper exercise of his discretion, although it does not negative in terms the exception in Const., art. 1, § 20, by reciting that the proof was not evident or the presumption great; the burden being upon the prosecuting attorney seeking the writ to directly aver and prove the contrary.</p>

<p>Appeal from a judgment of the superior court for Wahkiakum county, Hewen, J., entered January 15, 1919, upon granting a nonsuit, dismissing an action for specific performance.</p>

<p>Sales (153)—Breach of Contract—Evidence—Sufficiency. A contract made in November for the sale of soya bean oil for immediate shipment from the Orient was finally breached February 19th following, where upon offer and negotiations for extending the time for delivery, the buyer fixed that time as the limit within which time for delivery could he arranged; failure to reply thereto constituting refusal to deliver as of that date.</p> <p>Sales (155)-—Remedies of Buyer—-Damages—Purchase of Goods Elsewhere. Upon refusal of the vendor to deliver soya bean oil “c. i. f. Seattle,” the buyer is entitled to recover the difference between the contract price and the market price at Seattle at the time of the breach.</p> <p>Sales (152)-—Remedies of Buyer—Action for Breach—Evidence -—Admissibility. In a buyer’s action for damages for failure to deliver soya bean oil to be shipped from the Orient, the market value on the day of the breach may he shown by a trade journal of repute and general circulation throughout the United States, generally relied upon by the trade everywhere, in which quotations were given and sales reported at the place of delivery, which was the principal Pacific Coast point for the importation and distribution of soya bean oil.</p> <p>Costs (62)—On Appeal-—More Favorable Judgment. Appellant, -obtaining a substantial reduction in the judgment, is entitled to costs on appeal.</p>

, entered February 11, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.

<p>Banks and Banking (25)—Payment of Fobged Checks—Rights as Between Banks—Acceptance—Effect. Where checks to fictitious payees with forged indorsements passed through the clearing house and were paid by the drawee bank, the payment admits the existence of the payees and their capacity to indorse, under Rem. Code, § 3453, providing that acceptance of a check admits the existence of the drawer and drawee and their capacity to draw and indorse; since payment includes acceptance.</p> <p>Same (25). In such case, the drawee bank paying the checks cannot recover the sums from the bank passing them through the clearing house, on the ground of the nonexistence of the payees and negligence in paying forged checks, upon showing that the person depositing and indorsing the checks and forging the names of the payees was acting under an assumed name as a customer of the passing bank, where such party was at all times insolvent and deposited to a checking account in usual course and there was nothing to put the passing bank upon inquiry; since the vice of the transaction rested in the fact of the fictitious payees, whose existence, under the statute, was admitted by the drawee when it paid them.</p> <p>Same (25). A national depositary bank chargeable with notice of the regulations of the Treasury Department requiring checks of a public disbursing officer to state the object or purpose for which any check was drawn cannot claim negligence ,on the part of other banks not aware of the regulations in causing a loss by passing checks drawn upon the depositary bank to fictitious payees by a public disbursing officer, where for years such depositary bank cashed and passed a stream of such checks by such officer which contained no notation as to their object or purpose, and gave no caution or notice that they were irregular on their face.</p> <p>Bills and Notes (90)—Payment of Check—Rights of Pabties— “Holdek.” Rem. & Bal. Code, § 3457, of the negotiable instrument law providing that all indorsers warrant to subsequent holders in due course the matters mentioned in the preceding section and engage, in case of dishonor and due notice, to pay the amount thereof to the holder, was not intended to define any obligation or liability to the drawee, who by acceptance, under the terms of Id., § 3453, admits the existence of the payee and his capacity to indorse; since the drawee paying a check is not a “holder” and acceptance and payment strips the instrument of all negotiability.</p> <p>Judgment (209)—Conclusiveness—Persons Concluded—Notice to Defend—Nonliable. Judgment for the United States against a 1 drawee bank for the amount of government funds embezzled by a public disbursing officer, by means of checks to fictitious payees and forged indorsements, wrongfully paid by the bank, does not foreclose the defense of another bank which passed the checks through the clearing house, on their deposit to a checking account, although the defense of the action was tendered to it, where the defense was declined by the passing bank and it was under no legal obligation in the premises to make good the loss of the drawee bank.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered March 24, 1919, upon findings in favor of the plaintiff, in an action for conversion, tried to the court.</p>

, entered December 27, 1918, upon findings in favor of the plaintiff, in an action for equitable relief, tried to the court.

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered March 29, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action to rescind a contract for fraud.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered March 7, 1919, upon findings in favor of the plaintiff, in an action on coil-tract, tried to the court.</p>

<p>Certiorari (6)—When Lies—Adequacy op Remedy by Appeal. Certiorari does not lie to review a judgment enjoining a city from the prosecution of public work, on the ground that the remedy by appeal is inadequate, where it merely appears that the time for performance of the contract will expire before the appeal can be heard and the delay would cause inconvenience to the contractor and city; since the appeal will afford a complete remedy.</p>

<p>Insurance (105-116)—Waiver and Estoppel—Conditions—Engaging in Military Service—Permission—Evidence—-Sufeiciency. A clause in a life insurance policy providing that the company would not be liable if death ensued while insured was engaged in the military service of the United States unless the company’s permission had been obtained, is not waived by a letter directing the insured or the beneficiary to take up the matter with the local agent, where the local agent merely stated that he would send the policy and letter back to the company and get its consent and made no endorsement on the policy and no attempt to modify it, and death ensued before permission was granted and before insured had agreed to pay extra premium, as required by the company before granting the permission.</p>

<p>Municipal Corporations (379-383, 391)—Use op Streets —Collision at Crossing—Contributory Negligence—Evidence—Sufficiency. The driver of an automobile in collision with a truck at a street intersection, is guilty of contributory negligence precluding any recovery, where he was violating the speed limit and also the ordinance giving the right of way to vehicles on the right when approaching street intersections, and the driver of the truck, having the right of way, had a right to rely on the other’s observance of the ordinance.</p>

<p>Appeal from, a judgment of the superior court for Spokane county, Hurn, J., entered January 30, 1919, upon findings in favor of the plaintiff, in an action for conversion, tried to the court.</p>

<p>Sales (68, 75) —Performance or Breach—Tender—Inspection. An offer to buy for plaintiff certain second-hand wire rope to be selected and inspected by defendant at Duluth, accepted by plaintiff, was breached when the cars tendered at Seattle were refused because not inspected and unsatisfactory, where defendant inspected and accepted some of the rope without notifying plaintiff and such inspection was a matter solely between the defendant and the Duluth dealer furnishing the rope.</p>

, entered March 7, 1919, upon findings in favor of the plaintiff, in an action for damages sustained in an automobile collision, tried to the court.

, entered September 9, 1919, dismissing- an application for a writ of mandamus” to compel the issuance to relator of a license to operate a jitney bus.

<p>Appeal from a judgment of the superior court for King county, French, J., entered January 9, 1919, upon findings in favor of the defendants, dismissing an action on contract, tried to the court.</p>

<p>Deeds (21-1, 63)—Validity—Mental Capacity—Evidence—Sufficiency. A finding of mental capacity on the part of a woman aged eighty to execute a deed to her daughter, with whom she had made her home for years, is sustained, although relatives testified she was childish, where disinterested witnesses testified to facts showing more than ordinary mental capacity for one of her age.</p> <p>Sajie (21-1, 63)—Validity—Undue Influence—-Evidence—Sufficiency. A finding that a woman eighty years of age was not unduly influenced by her daughter with whom she had resided for years, to execute a deed to her, is sustained by evidence of her sense of obligation to her daughter and repeated expressions of her intent to compensate her; it not being undue influence for a daughter to persuade or solicit her mother to make a conveyance, so long as she was not overborne or rendered incapable of acting upon her own motives.</p>

, entered May 17, 1917, upon findings in favor of the plaintiff, in an action for damages for trespass, tried to the court.

<p>Appeal (145)—Preservation of Grounds—Exceptions to Findings—Necessity. Where the findings in a decree of foreclosure are not commingled with the decree proper and are separately stated and numbered, there can be no review of the evidence on appeal, when not excepted to, where no part of the error relied upon is the rejection of evidence; since Rem. & Bal. Code § 382, providing that exceptions are not necessary to rulings embodied in a written judgment, also provides that this section shall not apply to findings of fact in a decision of a court or judge tried without a jury, and Id., § 1736, precludes any review of the evidence in the absence of exceptions to the findings.</p> <p>Same. Where findings are made in an equity ease, although unessential, it is necessary that exceptions he taken in order tc obtain a review of the evidence.</p> <p>Same (147)-—Exceptions to Findings—Exclusion of Evidence. Error in the exclusion of evidence may he reviewed on appeal regardless of exceptions to the findings.</p>

<p>Deeds (25-1-31)—Construction—General Rules. In ascertaining the intent of a deed, some meaning should be given to every expression, if it can reasonably be done, not inconsistent with the general intent, and if ambiguous, the construction given by the parties may be considered.</p> <p>Same (34)—Property Conveyed. A water deed of “the right of way and pipe line or gravity system” of the grantor within the corporate-limits of a city does not include service pipes outside the city limits, used by the grantor in connection with its mill; “or gravity system” being merely synonymous with right of way and pipe line within the city, especially where the parties had so construed the deed.</p> <p>Same (45)—Exceptions-—-Operation and Effect. In a water deed, conveying a right of way across a school section, an exception of the school section from the warranty clause does not operate to exclude things not contained within the description actually sold.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Davidson, J., entered June 6, 1919, upon a trial and conviction of violating the prohibition law.</p>

, entered April 10, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover a broker’s commission.

<p>Bills and Notes (127)—Reformation of Instruments (6, 19)— Mistake—Evidence—Admissibility. In an action upon a mortgage note and to reform and foreclose the mortgage, alleged in the complaint to have fixed the due date by mistake, parol evidence of the mistake is admissible.</p> <p>Evidence (104)—Hearsay—Admissibility. In an action to reform and foreclose a mortgage, alleged to have fixed the due date by mistake, the positive evidence of the persons present as to what occurred is not inadmissible as hearsay.</p> <p>Bills and Notes (64, 138)—Bona Fide Purchasers—Notice of Mistake—Evidence—Sufficiency. In an assignee’s action on a mortgage note and to reform and foreclose the mortgage, findings that by mistake the mortgage fixed the due date one year in advance of the maturity of the note, and that plaintiff had notice of the mistake when he purchased at a large discount, are sustained where the discrepancy appeared on the face of the papers, and he was told of the two dates, and he. admitted having had some intimation of it; the presumption of good faith attaching hy virtue of Rem. Code, § 3447, being in such case overcome by clear and' satisfactory evidence.</p>

, entered February 1, 1919, upon findings in favor of the plaintiff, in an action for personal injuries sustained in a collision with a motor truck, tried to the court.

, entered March 10,1919, granting a new trial, after the verdict of a jury rendered in favor of the defendants, in an action in tort.

<p>Appeal from a judgment of the superior court for Clallam county, Ralston, J., entered December 17,1918, upon findings in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

, entered April 10, 1919, upon findings in favor of the plaintiff, in an action to recover a broker’s commission, tried to the court.

, entered March 18, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action on an accident insurance policy.

<p>Sales (33)—Construction—Transportation—Procuring Cars. The purchaser of junk to be delivered f. o. b. Seattle is under no obligation to furnish the cars, even if he later offered to assist in obtaining them.</p> <p>Same (67)—Delivery—Demand. Upon a sale of junk f. o. b. Seattle, the seller is bound to load the cars within a reasonable time, without any demand by the buyer.</p> <p>Same (36)—Time op Payment—Tender. Upon a sale of junk f. o. b. cars, delivery and payment are simultaneous acts, and the buyer need not tender or pay the price before the cars are loaded.</p> <p>Same (151)—Actions (29)—Defenses — Premature Action. An action for breach of a contract to sell and deliver junk f. o. b. cars, commenced ten days after tender of the price, is not premature, where the seller, after long delays, still refused to fix any time for delivery.</p> <p>Sales (9, 28)—Option. An option to purchase, once accepted, becomes a binding contract.</p> <p>Sales (151)-—Actions—Defenses—Tender. A buyer of junk, . having waited a year for delivery, is not obligated to accept a tender after bringing suit for damages.</p>

<p>Bills and Notes (6) —Drafts — Acceptance—'Statutes — Conditional Acceptance. Under Rem. Code, §.3524, providing that an acceptance on a paper other than the hill itself does not bind the acceptor except in favor of the person to whom it is shown and who receives it for value on the faith thereof, a draft accompanying a bill of lading for a car load of shoots was not conditionally accepted or binding on the drawee, where the bank consigning the car received the draft several days prior to presentation and on presentation the drawee refused to accept it but requested that the bill of lading and shipment be forwarded to the purchaser for inspection until which no payment would be made; since the bank did not receive the draft for value on the faith of the acceptance, although it may have relied thereon in forwarding the bill.</p> <p>Warehousemen (3)—Receipts—Negotiability. A company having no warehouse of its own and doing no business for the public, organized as a device by which a bank could furnish negotiable warehouse receipts as collateral security for loans to a manufacturing company, is not a ‘“warehouseman” authorized to issue negotiable warehouse receipts, within Rem. Code, § 3369-58', defining a warehouseman as “a person lawfully engaged in the business of storing goods for profit”; hence the bank did not acquire title by virtue of its warehouse receipt denominated on its face as negotiable; since the carrier was justified, under Rem. Code, §3385-12, in delivering the goods to the consignee named in a nonnegotiable bill of lading.</p> <p>Sales (150) — Action for Breach — Conditions Precedent — Ability and Readiness to Perform. A party claiming damages for breach of contract to deliver box shook^, need not allege or prove ability and willingness to perform on his part, where before the time for performance the other party gave notice that it would not perform.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered February 4, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through contact with electric wires.</p>

<p>Appeal from a judgment of tlie superior court for Spokane county, Carey, J., entered'April 17, 1918, upon granting a nonsuit, dismissing an action for damages to property destroyed by fire.</p>

<p>Carriers (8-1)—Of Goods—Refusal to Accept—-Liability. It is primarily a carrier’s duty to accept a shipment and furnish suitable equipment under a requested optional service, published in its tariff, but it is not liable if its failure was due to an unprecedented shortage of cars and conditions which it could not reasonably anticipate or avoid.</p> <p>Carriers (7)—Contracts—Tariffs. An interstate carrier can enter into no contract of transportation not expressly authorized in its published tariffs.</p> <p>Same (8-1)-—Refusal to Accept Goods—Pleading—Defenses. In a shipper’s action for damages to apples frozen in transit, the carrier’s answer states a good defense, where it appears that its published tariffs provided an optional service, one at shipper’s risk and the other at a higher rate at the risk of the company, which latter required refrigerator ears, that, upon plaintiff’s demand for such service, the company used due diligence to obtain refrigerator cars, but from unprecedented conditions was unable to do so, whereupon plaintiff elected to accept the other service, which called for box cars, stoves, and a shipper’s attendant, and signed a contract for such service in which he assumed all risks, and that the shipper’s loss was due to failure to properly prepare the car and to the negligence of his agent attending the shipment.</p>

<p>Appeal from a judgment of the superior court for King county, Back, J., entered March 30, 1918, upon a trial and conviction of grand larceny.</p>

<p>Partnership (38)—Authority—Execution oe Note and Mortgage. One member of» a nontrading partnership for the growing of potatoes has no power to borrow money and mortgage the crop belonging to the firm, where he had no duties making it necessary and there was no custom of dealing authorizing it.</p> <p>Same (41)—Estoppel to Deny Partnership. The lender of money to the active member of a nontrading partnership for the growing of potatoes cannot claim want of notice of the partnership where he prepared the rent receipt evidencing the lease, which named the dormant partner as a member of the firm.</p> <p>Same (20)—Firm Name—Recording. A nontrading partnership for ,the growing of potatoes is not within the recording act, Rem. Code, § 8359, relating to limited partnerships for the transaction of mercantile, mechanical or manufacturing business.</p>

<p>Boundaries (13) — Establishment — Location of Lines — Evidence—Sufficiency. The reconstruction of a division line fence is sufficiently shown to have heen on the original boundary line, where the preponderance of the evidence was that both lines were four feet south of the north wall of a concrete basement of a house still in existence.</p> <p>Appeal (411)—Review—Force of Evidence—View of Premises. Undue weight to a view of the premises will not be found where the court was not unduly influenced, and the findings were supported by the preponderance of the evidence.</p> <p>Boundaries (18) — Establishment — Resurvey. Rem. Code, §§ 947-949, relating to the restoration of lost boundaries by a resurvey does not control actions, to quiet title rested upon adverse possession to a line fence the location of which was established by direct evidence.</p> <p>Same — E stablishment — Adjudication—Decree—Certainty. A judgment in an action between adjoining owners to establish the boundary line is sufficiently definite where the decree calls for an east and west line four feet north of the basement wall of defendant’s house, in view of the permanency of the monument referred to.</p>

<p>Drains (13-1)—Establishment—Costs and Expenses. Under Rem. Code, § 4226-10, authorizing a change of boundaries of a proposed drainage district and a revision of estimated costs, the county commissioners cannot charge the costs of engineer’s expense which was not incurred in connection with the plans substantially as recommended or which were incurred in a plan which was a substantial abandonment of that originally planned and petitioned for; but the district finally formed may be charged with such part of the costs as was necessarily incurred in the preparation of the district finally adopted.</p> <p>Same (13-1)—Costs'—Attorneys. In the establishment of a drainage district it is proper to allow a reasonable attorney’s fee for special attorneys employed whose services were beneficial to the district as finally created.</p> <p>Same (13-1)—Costs—Modification of Plan. Where in the establishment of a drainage district, two ditches were more feasible than one, as originally planned, it is proper to allow the cost of ditch number two.</p> <p>Mandamus (90)—Scope of Relief. An application for a writ of mandate does not require the court to either grant or reject it in toto.</p>

<p>Fraud (4)—Misrepresentations—Matters oe Fact or Opinion. In an action for the fraud of a real estate agent in pointing out the wrong land to a prospective purchaser, the agent’s statements that he was satisfied that1 it was the land in question were not, as a matter' of law, mere expressions of opinion, where the agent claimed to have such a description and knowledge of the land as to enable him to identify it, although he had never before seen it.</p> <p>Principal and Agent (9)—Evidence of Agency—Sufficiency. In an action against the owner of land for fraud of the agent in pointing out the wrong land, the evidence is insufficient to show that he was agent for the purpose of pointing out the land where it merely appears that he was the broker authorized to make the trade, and that the owner suggested that plaintiff go and see the land, and that the two had had considerable other business between themselves, and the owner was to pay part of the commission.</p> <p>Same (41)—Authority of Agent—Declarations of Agent. The authority of a real estate broker to show land belonging to his principal cannot be shown by declarations of the agent.</p>

<p>Master and Servant (20-1)—Workmen’s Compensation Act— Persons Protected—Unlawful Employment of Minors—Statutes. A girl under sixteen years of age employed in a factory without any permit in violation of Rem. Code, § 2447, is nevertheless a “workman” within the provisions of the industrial insurance act, withdrawing all civil remedies for personal injuries to workmen in extra-hazardous employments; especially in view of Rem. Code, § 6604-7, recognizing that a child less than the maximum age is a workman within the meaning of the act.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered February 18, 1919, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

<p>Evidence (169)—Parol Evidence to Vary Writing—Completeness of Writing. A written offer to manufacture for defendant’s shop special design lighting fixtures as per plans submitted, which plaintiff’s complaint showed were unusual and for defendant’s special use, is so incomplete as to admit proof of a special warranty of fitness and efficiency.</p> <p>Sales (103)—Warranties—Inspection, Examination or Test. Upon an issue as to whether there was a collateral oral warranty that articles manufactured for defendant’s special purpose would meet the requirements, the fact that plaintiff installed one of the articles to ascertain if it would meet the requirements must be taken as an admission of an outstanding warranty as to its efficiency.</p> <p>Sales (108)—Implied Warranties—-Fitness for Purpose Intended. Upon an executory sale by a manufacturer of articles to be made for a special purpose, there is an implied warranty of fitness for the purpose intended.</p> <p>Sales (127)—Actions for Price—Defenses—Fraudulent Representations. It is a good defense to an action for the price of special electric light fixtures manufactured for a special usé in the defendant’s shop, that defendant was induced to enter into the contract by false representations as to the efficiency of the articles, being without knowledge of the subject-matter, even if the seller did not know the statements were false.</p>

, entered February 3, 1919, upon findings in favor of the defendant, in an action for breach of warranty in the sale of corporate stock, tried to the court.

<p>Homestead (7)—Selection — Necessity. Under Rem. Code, §§ 528-561, no right of homestead existed in any specific property until it was selected and the selection recorded; and prior residence upon the land lends no support to the claim of homestead rights.</p> <p>Homestead (7, 22)—Selection—Survivors—Statutes—Repeal. Rem. Code, §§ 1465 and 1468, contemplating the vesting of title to the homestead in the widow and minor children on the death of the husband was in that respect repealed by §§ 528-561, requiring the selection of specific property.</p> <p>Homestead (4, 21, 22)-—Head of Family—Rights of Surviving Spouse. Neither the surviving husband nor'wife who was not the “head of a family” within the meaning of Rem. Code, § 553, could acquire a homestead in community property when homestead rights had not been perfected prior to the death of the other spouse.</p> <p>Homestead (22, 23)—Rights of Surviving Wife and Heirs—• Statutes—Retroactive Effect—Vested Rights. The probate code, Laws 1917, p. 670, § 103, enlarging the homestead rights of each spouse upon the death of the other, does not entitle a surviving wife to a homestead in the undivided half of community property that had not been selected as a homestead in the husband’s lifetime, and had become vested in his heirs by descent prior to the talcing effect of the act of 1917; since it would impair vested rights.</p>

<p>.Records (3)—Recording Written Instruments—Notice. The recording of an agent’s contract for a share in the profits of lands purchased is notice to subsequent purchasers of his rights.</p> <p>Equity (38)—Maxims—Clean Hands. A conveyance of land with notice of defendant’s rights therein so that his interests were not affected is not a fraud that would defeat plaintiff’s right to equitable relief.</p> <p>Joint Adventures—Profit Sharing in Purchase of Lands. A joint adventure, and not a partnership, is constituted by an agreement whereby defendant employed plaintiff as agent in purchasing timber land, the plaintiff to receive a certain per cent of the net profits and to share the same proportion of the losses, where there was no mutual agency and the control of the lands purchased was entirely in the defendant.</p> <p>Same—Rights of Parties—Termination. In such a case, where, owing to the war, it was impossible to dispose of the lands at a profit, it would be unconscionable to.hold the property indefinitely; and the purchases having been made and the capital invested, plaintiff should be given one year to dispose of the property and account for the proceeds in accordance with the contract, at the end of which time it will be deemed performed and the undertaking terminated. s</p>

<p>Appeal from a judgment of the superior court for King eonnty, Ronald, J., entered March 15, 1919, upon sustaining a demurrer to the complaint, dismissing an action on a guaranty agreement.</p>

, entered October 18, 1918, dismissing an action to set aside a property settlement and to modify a decree of divorce, tried to the court.

<p>Marriage (8, 11)—Cohabitation and Reputation—Presumptions —Continuance oe Illegality. Residence and cohabitation in a state where common law marriages are recognized, after.a former wife had obtained a divorce, does not legalize the prior void marriage of the husband or rebut the presumption of a continuance of the illicit relation, where neither of the parties knew of the divorce and their residence in such state was not permanent.</p>

<p>Contraots (4, 25)—Mutuality—Consideration—Mutual Promises. An agreement promising to sell ice at a certain price for one year to a certain' dealer and to no other in consideration of such dealer’s soliciting and delivering ice in a certain district, is entirely unilateral and unenforceable for lack of mutuality or consideration; since the dealer made no promise to solicit, deliver or buy the ice, and assumed no obligation.</p> <p>Contracts (6)—Offer and Acceptance—Construction., In such a case, indorsing the word “accepted” upon the contract does not constitute a promise on the part of the dealer to solicit, deliver or buy the ice.</p> <p>Contracts (24)—Consideration—Mutual Promises—Independent Consideration. The carrying out of a unilateral contract to sell ice for one year to a certain dealer and no other, is not an independent consideration for an agreement extending the contract for the next year; since it could be withdrawn at any time.</p>

<p>Cross-appeals from a judgment of the superior court for Spokane county, Hum, J., entered March 5, 1919, upon finding nominal and special damages, in an action on contract, tried to the court.</p>

<p>Bills and Notes (138, 146)—Actions—Weight oe Evidence— Fraud—Duress. In an action to cancel a note, executed under threat of arrest for theft of defendant’s money, the evidence is insufficient to sustain a counterclaim for the amount of the note, where upon the issue as to its appropriation, plaintiff positively declared her ignorance and there was nothing hut a flimsy showing, consisting mostly of pure suspicion, to indicate that she had taken it.</p>

<p>Criminal Law (327)—Trial—Taking Exhibits to Jury Room. In a prosecution for the unlawful possession of whiskey, it is not error to allow the jury to take to the jury room bottles of whiskey introduced in the evidence as exhibits and to smell and sample the contents during the deliberation; the matter ordinarily being within the discretion of the trial court.</p> <p>Same (347, 348)—New Trial—Misconduct of Jurors—Sampling Whiskey Exhibits. The denial of a motion for a new trial for misconduct of the jury in sampling and drinking whiskey which, as an exhibit in the case, was taken to the jury room, is not prejudicial error where it does not appear that any of the jurors were under the influence of liquor.</p> <p>Same (212)—Trial—Tests—Sampling Whiskey. In a prosecution for the unlawful possession of whiskey, any sampling and testing by the jury should be in the presence of the court at the trial, and not in the jury room on deliberating upon the verdict; but the same is usually unwise and unnecessary.</p>

, entered June 2,1919, upon findings in favor of the defendants, in an action to compel the reinstatement of a discharged civil service employee, tried to the court.

Application filed in the supreme court December 2, 1919, for a writ of mandamus to compel the superior court for Spokane county, Blake, J., to fix the amount of a supersedeas bond on appeal.

, entered December 28, 1918, in favor of the plaintiff, upon sustaining a demurrer to the answer and the refusal of the defendant to plead further, in an action on contract.

<p>Statutes (25)—Subjects and Titles—Schools and School Districts. Laws 1917, p. 332, providing that no action shall be maintained against school districts relating to specified matters, bears a direct relation to the title, “An act relating to actions against school districts”; and the generality of the title is not a valid objection to it.</p> <p>Same (9)—Effect of Partial Invalidity. The provision of laws 1917, p. 332, forbidding certain actions against school district officers is severable from that part of the act forbidding actions against school districts; so that failure of the title of the act to include officers does not affect the constitutionality of the balance of the act relating to school districts.</p> <p>Constitutional Law (102)—Class Legislation—Remedies—Liability of School Districts. Laws 1917, p. 332, providing that no action shall be maintained against school districts relating to specified matters is not open to the objection of being class legislation; since it covers all school districts in the state.</p> <p>Statutes (34)—Enactment—Amendment oe Independent Act. Laws 1917, p. 332, changing the law relating to certain actions against school districts, being a complete and independent act without reference to prior laws on the subject, does not offend against Const., art. 2, § 37, providing that no act shall be revised or amended by reference to its title but the revised act shall be set forth in full.</p> <p>Statutes (41)—Implied Repeals. While repeals by implication are not favored, the later of two irreconcilable acts must prevail.</p> <p>Constitutional Law (39)—Judicial Powers—Severity oe Law. The courts cannot declare a law unconstitutional because of its severity, if it meets constitutional requirements in other respects.</p>

<p>Sales (29) — Construction — Subject-Matter — Quantity and Ascertainment Thereof. A contract for the sale of three tons of cascara bark and also all bark that defendant “shall peel or have for sale during the season” does not include bark in excess of three' tons in the possession of the defendant which he did not peel and was not offering for sale that season.</p> <p>Injunction (6, 7)—Inadequacy of Remedy at Law—Recovery of Damages. The inadequacy of the remedy at law for breach of a contract to sell cascara bark which could have been purchased elsewhere at a small advance, is not sufficiently shown where the only evidence of defendant’s insolvency was the. inference to be drawn from the fact that he was the head of a family, and that he owned a home worth $300, an automobile worth $400, and one ton of cascara bark.</p>

, entered December 17, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through''a defective sidewalk.

<p>Libel and Slander (3)—Words Imputing Crime. The intent to charge plaintiff with a crime, in stating that he “or his kids” stole certain articles, is shown by the further statement that defendant saw the articles in plaintiff’s barn and intended to have him arrested; and pleading and proof to that effect sufficiently shows a slander.</p>

<p>Appeal from a judgment of the superior court for King county, Honorable Ivan L. Hyland, Judge pro tempore, entered August 7, 1919, upon findings in favor of the defendants, in an action of unlawful detainer, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Back, J., entered November 30, 1918, upon granting a nonsuit, dismissing an action on contract, tried to the court.</p>

<p>Statutes (14)—Subjects and Titles. The title to Laws 1919, p. 248, et seg., referring to the “adulteration” of concentrated commercial feeding stuffs sufficiently expresses, the subject-matter of § 3 (as required by Const., art. 2, § 19), which limits to ten per cent the amount of crude fiber in the feeds enumerated; since “adulteration” in the title applies to the addition of weaker or less nutritious substances and not merely to foreign substances.</p> <p>Constitutional Law (48, 116, 134)—Regulation oe Trade or Business—Police Powers—Equal Protection oe the Laws—Due Process. The state and Federal constitutional guarantees of due process and equal protection of the laws do not apply to laws enacted by the state legislature in the exercise of its police powers; hence Laws 1919, p. 248 et seg., relating to the adulteration of concentrated feeding stuffs, enacted for the protection of dairymen and stockmen; does not violate Const., art. 1, §§ 3 and 12, or the 14th amendment to the Federal constitution; notwithstanding that some innocuous feed stuffs are incidentally included within the prohibition of the law.</p>

<p>Proceedings filed in the supreme court September 30, 1919, for . the disbarment of an attorney, upon the findings of the state board of law examiners against the accused.</p>

<p>Proceeding's filed in the supreme court May 17, 1919, for the suspension of an attorney, upon the findings of the state board of law examiners against the accused.</p>