Volume 11 — Washington Reports

<p>APPEAL—SUFFICIENCY OF EVIDENCE—ACTION ON PROMISSORY NOTE — COURT MAY ADD STIPULATED ATTORNEY FEES TO VERDICT.</p> <p>A verdict for plaintiff in an action on a promissory note will not be disturbed, although the defense was that it had been materially altered after delivery, when the evidence is conflicting on that point, and the charge of the court is not in the record, as it will be presumed that the jury were properly charged as to the alteration, and that in giving a verdict for the principal and interest of the note they must have found that the note had not been altered.</p> <p>Where the verdict of the jury in an action on a promissory note is merely for the principal and interest thereof, it is not error for the court in rendering judgment to add in the amount of attorney’s fee provided for in the note.</p>

<p>RELEASE OF SURETY—SURRENDER OF SECURITY — REQUEST TO DEBTOR TO SUE — IMMATERIAL ALTERATION OF NOTE.</p> <p>A surety upon a promissory note cannot claim discharge from liability because of the fact that the payee has released a chattel mortgage by the principal debtor securing the same debt, when the proceeds from the sale of the mortgaged goods were all credited upon the note.</p> <p>A mere oral request upon the part of the surety to sue, and a promise upon the part of the creditor to comply, will not constitute a waiver of the notice in writing required by Code Proc., § 756, when it appears that the demand for suit had been made some ten months before suit was actually brought by the creditor.</p> <p>If, after a surety has notified the creditor to bring suit, he subsequently consents to the dismissal of the suit brought pursuant to such notice, he will remain bound without any new promise.</p> <p>An indorsement on the back of a promissory note in the following words: “ With privilege of three months’ extension, if security remains satisfactory,” although made by the payee after delivery and without the knowledge of the surety, will not have the effect of discharging the surety; as it is an immaterial alteration, in no way changing the rights or obligations of the parties.</p>

<p> Appeal from Superior Court, Spokane County. </p>

<p> Appeal from Superior Court, Spokane County. </p>

<p>NEGOTIABLE INSTRUMENTS—AGREEMENT EOR GUARANTY — NOTICE TO PAYEE — ACTION POR INTEREST DUE — ATTORNEY’S PEE.</p> <p>Guarantors on a promissory note cannot escape liability on the ground that they signed with the understanding that others should also sign, of which fact the payee had knowledge, when the only showing made by the evidence is, that the application for the loan for which the note was given stated that the note would be indorsed by certain persons named, and the acceptance stated that the note was “ to be indorsed by the several gentlemen named, or as many of them as may be at hand,” while the note as executed did not contain the name of one of the persons named in the application.</p> <p>The fact that in an application for a loan it is stated that the note will be guaranteed by certain persons could not convey notice that there was any agreement among such persons that all should become guarantors before any should be bound, when there is nothing on the face of the application to show that the proposed guarantors were parties thereto.</p> <p>When it appears upon the face of a promissory note that others than those named in the application for the loan had joined in the guaranty, the payee is authorized to assume that so far as the guaranty provided for in the application was confined to certain persons, its terms had been changed before the execution of the note.</p> <p>A provision in a promissory note that in case of suit to collect the note, or any portion thereof, a certain sum should be payable as attorney fees, makes such fee collectible only in case of dishonor of the note, and not upon suit to collect an installment of interest due.</p>

<p> Appeal from Superior Court, Snohomish County. </p>

<p>APPEAL — SUFFICIENCY OF PLEADING — OBJECTION NOT RAISED IN BRIEF.</p> <p>Where there is no question before the court on appeal except the sufficiency of the complaint and that point is not raised in appellant’s brief, the appeal will be dismissed.</p>

<p>MECHANICS’ LIENS — SUFFICIENCY OF NOTICE.</p> <p>The fact that a notice of mechanic’slien, in stating the terms of the contract, refers to certain plans and specifications to he furnished hy the claimant, without setting them out, does not necessarily render the notice defective, but the notice is sufficient, in the absence of proof to the contrary, when the statement of the terms and conditions of the contract, though given in brief, raises the presumption that the substance of such plans and specifications are as stated therein.</p>

<p> Appeal from Superior Court, Whitman County. </p>

<p>MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS —ACTION UPON WARRANTS — PLEADING.</p> <p>A municipal corporation is not limited to special assessments for the purpose of paying the expense of street improvements, when, under its charter, it has power to assess, levy and collect taxes for general municipal purposes, and is also given general power to improve and repair its highways, although by another section of the charter it is granted power to levy a special tax for such improvements. (Soule v. Seattle, 6 Wash. 315, followed.)</p> <p>Where a contract for a street improvement has been duly made by a municipal corporation, and the work done thereunder accepted by it, the city is liable for the cost thereof when no steps have been taken for five years to collect the necessary funds for its payment by assessment upon the abutting property.</p> <p>Although a city charter requires all contracts of the city for the payment of sums in excess of $50 to be in writing, failure to allege in a complaint for the recovery of a sum in excess of $50, that it was based on a contract in writing, does not render the complaint demurrable, as a written contract is always admissible in evidence under a general allegation that a contract had been entered into, without indicating whether it was in writing or not. (Arnott v. SpoTcane, 6 Wash. 442, distinguished.)</p> <p>Although a city charter may require that warrants for the payment of money be signed by the mayor and clerk of the city, a complaint upon a city warrant signed by an acting mayor is not demurrable for the reason that it fails to allege the proceedings of the city council by virtue of which the acting mayor came to occupy such position, as such facts are matters of evidence and not of pleading.</p>

<p> Appeal from Superior Court, Spokane County. </p>

<p>WRIT OP PROHIBITION — ACTION BY RECEIVER TO ENJOIN EXECUTION-ATTACHMENT BY EXECUTION CREDITOR — PRIORITIES.</p> <p>Prohibition will not lie to prevent the carrying into effect of an order of the superior court restraining the sale of the property of an insolvent corporation upon the execution levy of a judgment creditor and ordering the transfer of the property to the hands of the receiver, when such judgment creditor has been made a party to the injunction suit, and the order therein fully preserves and protects its rights. (Hoyt, O. J., dissents.)</p> <p>The fact that, subsequent to. the commencement of suit by a receiver to restrain an execution sale of the trust property, the judgment creditor acquires an attachment lien, does not suffice to give such creditor priority over the. receiver. (State v. Superior Court, 7 Wash. 77, and State v. Superior Court, 8 Wash. 210, distinguished.)</p>

<p>APPEAL — CERTIFICATION OF STATEMENT WITHOUT NOTICE — FILING NEW BOND — AMENDMENT OF PLEADINGS — ACTION FOR SERVICES RENDERED— EVIDENCE—WANT OF REQUEST — RATIFICATION — PAYMENT.</p> <p>Under Laws 1893, p. 115, § 9, where no amendments or objections to a statement of facts have been served by the respondent on the appellant, the statement may be properly certified by the judge in the absence of, and without notice to, the respondent.</p> <p>Under Laws 1893, p. 125, when it appears that the sureties upon an appeal bond are not qualified, the voluntary filing of a bond with new sureties within five days from the time fixed for the sureties on the original bond to justify is sufficient, although no examination of the sureties therein had been made by the judge.</p> <p>In an action to recover for labor performed and material furnished to defendant in the driving of a certain number of piles, it is not error to permit plaintiff, at the time of going to trial, to amend his complaint, over the objection of defendant, by striking therefrom the claim for materials furnished, as modification of the complaint imposes no additional burden on defendant in conducting his defense, nor does it materially change the issues so as to require further preparation for trial.</p> <p>Denial of defendant’s application to file an amended answer, at the trial, setting up a counterclaim, is not an abuse of discretion on the part of the trial court, when the defendant had once waived the filing of it. (Hoyt, C. J., dissents.)</p> <p>In an action to recover for labor performed in driving piles for defendant, testimony showing what prices had been charged by plaintiff for driving piles for other persons in the vicinity is immaterial.</p> <p>In an action to recover for services performed, a verdict for plaintiff is warranted, although there is no proof that the services were performed at the request of defendant or of an authorized agent, when it appears that defendant ratified the performance of such services by availing himself of the fruits thereof.</p> <p>When payment is not pleaded it cannot be proved under a plea of general denial of the allegations of the complaint.</p>

The appeal bond filed in this case was conditioned that “ the said Z. Erickson does by these presents, covenant and agree to hold and save the plaintiff and respondent harmless on account of the costs of said appeal, and said defendant and appellant does agree to pay all costs and damages that may be awarded against him on said appeal or on the dismissal thereof, not to exceed two hundred dollars, if said judgments and orders are by the said supreme court affirmed, and said…

<p>TRUSTS — ORAL AGREEMENT TO CONVEY—STATUTE OF FRAUDS — CANCELLATION OF CONTRACT — PARTIES IN PARI DELICTO — SPECIFIC PERFORMANCE.</p> <p>Where the legal title to land has been transferred upon the parol promise of the grantee, made in bad faith and with the intent to deceive, that he would hold same in trust for the grantor, the transaction does not come within the statute of frauds, as trusts arising from fraud are excepted from its operation.</p> <p>Where one, taking advantage of the ignorance and weak intellect of another, and of the confidence reposed by the latter in bis superior business sagacity, induces such person to convey to him a tract of land for the purpose of putting it beyond the reach of an imagined claim of a third person, the parties do not stand in pari delicto, and the grantor is entitled to recover the land from such fraudulent grantee, and from others taking title from such grantee with full knowledge of the fraud.</p> <p>An indefinite and uncertain agreement for the sale of land will not he enforced by the courts.</p>

<p>Appeal from Superior Court, King County.'</p>

<p> Appeal from, Superior Court, Lewis County. </p>

<p>NATIONAL BANKS—INTEREST ALLOWED ON LOANS.</p> <p>A national bank may, under §§5197, 5198, Rev. St. IJ. S., charge any rate of interest allowed by the statutes of the state in which it is located to be charged by private banks or individuals..</p>

<p> Appeal from Superior Court. Lincoln County. </p>

<p> Appeal from Superior Court, Spokane County. </p>

<p> Original Application for Prohibition. </p>

<p>LARCENY — DESCRIPTION OP MONEY STOLEN —OBJECTION TO INFORMATION AFTER PLEA — HOW RAISED.</p> <p>An information for larceny of a sum of money need not contain a special allegation of the value, under Code Proc., § 1253.</p> <p>Semble, that an objection to the sufficiency of an information, if permissible to be raised by a motion for the exclusion of testimony instead of by demurrer, cannot properly be raised while a plea of not guilty is pending.</p>

<p>MECHANICS’ LIENS—BUILDING ON LEASED LAND—LIABILITY OF LESSOR.</p> <p>Where a building has been erected and paid for by a lessee under an agreement that the lessor would repay the cost thereof by allowing the retention of the rents by the lessee, the interest of the owner as well as that of the lessee, is subject to liens for work and materials furnished for the building. ( Scott, J., dissents.)</p>

<p> Appeal from Superior Court, Ghehalis County. </p>

<p>HABEAS CORPUS—DIVORCE OP PARENTS — CUSTODY OF CHILDREN.</p> <p>Where, after the rendition of a decree of divorce in which the custody of the minor children has been awarded to the mother, a stipulation for the modification of the decree so as to award custody to the father has been entered into by the father and mother, and possession of the children given to the father under such stipulation, the father is rightfully entitled to the children, although in fact the modification of the decree has never been secured.</p>

<p>ILLEGAL TAXATION — REMEDY BY INJUNCTION.</p> <p>The fact that a taxpayer is by statute given the right to defeat the collection of an illegal tax whenever suit for its collection is instituted by the county, will not prejudice his right to maintain an action in the meantime to enjoin its collection and remove the apparent lien which constitutes a cloud upon his title.</p>

<p> Appeal from, Superior Court, Lewis County. </p>

<p> Appeal from Superior Court, King County. </p> <p>On motion to dismiss appeal.</p>

<p> Appeal from Superior Court, Spokane County. </p>

<p> Original Application for Mandamus. </p>

<p>BONDS—ACCEPTANCE WITHOUT PRINCIPAL’S SIGNATURE—LIABILITY OP SURETIES — ACTION ON BOND—JOINDER OP PARTIES.</p> <p>Sureties upon the bond given by a contractor under the terms of §2415, Gen. Stat., for the protection of those furnishing labor or material to the contractor in the construction of public improvements, cannot escape liability from the fact that the bond was not signed by the contractor, when it has been delivered by him to, and accepted by, the other contracting party with the knowledge and consent of the sureties. (Hoyt, O. J., dissents.)</p> <p>The presumption arises from the delivery of a bond by the principal, as the agent of the sureties, that they must have known its conditions, and ratification by them of the bond while ignorant that it was unsigned by the principal, will not affect their liability.</p> <p>A complaint against principal and sureties upon a contractor’s bond, given in compliance with § 2415, Gen. Stat., hut which had not been signed by the principal, is not demurrable on the ground of misjoinder of parties defendant, for the reason that the obligations of the parties and the rights of plaintiff are identical, although founded in the case of the principal upon the contract, and in the case of the sureties upon the bond.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>ACTION ON POLICY OP INSURANCE—WAIVER OP CONDITIONS.</p> <p>The condition in a fire insurance policy limiting suit thereon to a period of six months after the fire, is waived by the action of the insurance company in making no positive denial of liability for the loss until after the expiration of the six months, the company having in the meantime led the insured to believe that the matter was held open for adjustment. (Anders, J., dissents.)</p> <p>In such case the insured is entitled to a reasonable time after the final rejection of his claim in which to commence an action on the policy.</p>

<p>ATTACHMENT BOND — ACTION ON — DAMAGES—EVIDENCE OF MALICE.</p> <p>In an action upon an attacbment bond, the costs of the principal action, to which the attachment was auxiliary, cannot be recovered as damages, under Code Proc., § 293.</p> <p>In an action on an attachment bond, damages for the detention of the property cannot be recovered when there is no proof of actual injury to plaintiff in consequence thereof.</p> <p>Where no actual damage is proven, exemplary damages cannot be recovered upon an attachment maliciously sued out.</p> <p>The mere fact that a plaintiff is unsuccessful in establishing the indebtedness of defendant to him, upon a trial of that issue, is not proof of malice in the issuance of an attachment as auxiliary to the action.</p>

<p> Appeal from Superior Court, Thurston County. </p>

<p>STREET ASSESSMENTS — VALIDITY—COLLATERAL ATTACK.</p> <p>Where a municipal charter requires that a street improvement be ordered by resolution of the city council, a resolution declaring the intention of the council to improve the street is not sufficient.</p> <p>Where the action of a municipal corporation in levying a special assessment for a street improvement is absolutely void, the proceedings are subject to collateral attack.</p> <p>Hoyt, O. J., dissents.</p>

<p>MECHANICS’ LIENS — CLAIM — INCLUDING IMPROPER CHARGE—IDENTITY OP STRUCTURE.</p> <p>The inclusion in a claim of lien of a charge for a door which was not furnished by the claimant will not vitiate his lien, when it appears that under his contract he was to furnish the door for which the overcharge was made, but by agreement with the contractor it was afterward procured elsewhere, and had been included in the claim under a mistake of judgment, without any intent to perpetrate a fraud.</p> <p>In an action to enforce a lien for materials used in the construction of a refrigerating machine building and boiler house, there is no variance on the ground that the proofs show two buildings instead of one, when it appears that, in addition to the refrigerating machine building, an old boiler house on the grounds was overhauled, almost rebuilt, and so connected with the other building as to make substantially one.</p>

<p>MUNICIPAL CORPORATIONS—PROMISSORY NOTES ISSUED BY TOWN — LIABILITY ON ORIGINAL INDEBTEDNESS — ALLOWANCE OP CLAIM.</p> <p>Although a municipal corporation may have no authority to execute a promissory note, it may be liable to an action by the payee upon the original contract for which the note was given.</p> <p>The issuance by a municipal corporation of a promissory note, whether valid as a note or not, is a sufficient allowance of the claim for which the note is given, when the entire claim had been before the town council and part of it had been ordered paid and the note has been executed for the balance.</p>

<p>LOGGING LIENS—MANUFACTURE OF. SHINGLES — WHO ENTITLED TO LIENS.</p> <p>Persons engaged in cutting shingle bolts to be used in the manufacture of shingles are entitled, under Laws 1893, p. 428, § 2 to a lien upon the shingles-as long as they are under the control of the manufacturer.</p> <p>Under Laws 1893, p. 428, giving a lien to every person performing labor upon, or who shall assist in obtaining, saw logs and other timber to be manufactured into lumber and shingles, does not apply to one who employs other men to work thereon, and who does not directly perform the labor himself.</p>

<p>ATTORNEYS’ LIEN — PAYMENT OF JUDGMENT — WHEN FREE OF LIEN.</p> <p>Although a judgment debtor may have notice of a lien claimed by the attorney for the adverse party, such judgment debtor has a right to pay the amount of the judgment into court to be thereafter disbursed to the proper parties entitled thereto, and such payment would discharge all his obligations under the judgment and lien.</p> <p>The fact that an attorney had perfected his lien against a judgment in the superior court, from which an appeal had been taken, would not, when notice of lien had not been filed with the clerk of the supreme court, preclude that officer from disbursing the amount paid on the judgment entered in the supreme court, free of all claim of lien.</p>

<p>APPEAL — NOTICE —EECOED.</p> <p>Under Laws 1893, p. 122, § 5, failure to serve notice of appeal upon all parties appearing in the action is ground for dismissal of the appeal, although all the parties not served were represented by the same attorneys as the appellant.</p> <p>A supplementary record, not certified as required by law, and filed long after the original record on appeal has been sent up, will not be considered as a part of the record.</p>

<p>FRAUD — RESCISSION OF CONTRACT FOR SALE OF LAND.</p> <p>False representation by a vendor of land that he would cause to be erected forthwith on other and adjacent lands a substantial brick hotel, for the construction of which a contract had already been made, although relied upon by a purchaser, does not constitute such deceit as to afford a defense to an action for the purchase price of the land, when the means of information was open to the purchaser as well as to the vendor.</p>

<p>JUROR—CHALLENGE FOR CAUSE — BIAS.</p> <p>Where, upon the examination of a juror in a criminal prosecution, it appears that the juror has formed an opinion as to the guilt or innocence of the accused from newspaper accounts and the conversation of a friend who was a witness in the case, which opinion it would take evidence to remove, such juror, although subsequently stating that he thought he could lay aside his formed opinion and try the case upon the evidence, is subject to challenge for cause. (Hoyt, O. J., dissents.</p>

<p>TIDE LANDS—AREA SUBJECT TO SALE — CONSTRUCTION OF ACT.</p> <p>Under the constitution and legislation of this state, and in the light of its settled harbor policy, the term tide lands, as used in the act of March 26, 1890, when applied to tide lands of the first class, must he construed as including lands lying between such inner harbor areas as may be established and the line of ordinary high tide (or the patent line, where the same is below such high tide line).</p>

<p>GARNISHMENT—LIABILITY OF FRAUDULENT GRANTEE—PROOF OF FRAUD.</p> <p>In garnishment proceedings the plaintiff is entitled to show that the garnishee defendant, by reason of some understanding, either secret or expressed, is the trustee or holder of the property of the principal debtor in order to keep it out of the reach of creditors; and in such case the garnishee may be held by the creditor for the amount of the property, although the principal debtor may have no right to enforce a claim therefor against such garnishee.</p> <p>In garnishment proceedings, the fraudulent character of the transfer of property from the principal debtor to the garnishee defendant may be shown under the statutory issue provided for in Laws 1893, p. 101, §§20, 22.</p>

<p>HOMICIDE—KILLING BY POISON — OBJECTION TO VERDICT — ARREST OP JUDGMENT—REVIEW ON APPEAL—MISCONDUCT OP PROSECUTING ATTORNEY.</p> <p>When the record upon appeal in a criminal case contains no statement of facts or bill of exceptions, every reasonable presumption must be invoked to aid the doings of court and jury, before 'the judgment and sentence will be reversed on account of errors shown by the" transcript.</p> <p>Under an information charging the defendant with the crime of murder in the first degree by the administration of poison, as defined in § 1 of the Penal Oode, the defendant may be convicted of murder in the second degree, or of manslaughter, pursuant to the provisions of §1319, Code Proc., permitting conviction for an inferior degree when the offense consists of different degrees.</p> <p>Where at the time a verdict in a criminal case is received the defendant is in court, and makes no objection to the form of the verdict and takes no exception to its reception by the court, it must be presumed, in aid of the judgment, that the defendant consents to the verdict, and error cannot be subsequently assigned on account thereof. (Gordon, J., dissents).</p> <p>The hearing and denying of motions for a new trial and in arrest . of judgment, may be had in the absence of defendant.</p> <p>The misconduct of the prosecuting attorney or his deputy cannot he urged as error on appeal, unless the facts in relation thereto have been found by the lower court and made a part of the record by a statement of facts or bill of exceptions.</p>

<p>CORPORATIONS—SUBSCRIPTION TO STOCK-ESTOPPEL.</p> <p>Subscribers to the stock of a corporation are not liable thereon, when the corporation has begun business before its capital stock is all subscribed, unless the acts and conduct of the subscribers are such as to establish a waiver on their part of the conditions precedent to liability.</p> <p>Partial payments upon stock subscriptions will not establish such waiver, when made without knowledge that the entire capital stock has not been subscribed. ></p>

<p>ACTION ON REPLEVIN BOND—SIGNATURE BY AGENT — LIABILITIES OP PARTIES—RETURN OP GOODS—ESTOPPEL.</p> <p>Although the names of the principals upon a redelivery bond given in an action of replevin were signed by their attorney -without authority, yet the principals are bound by its conditions, when by means of the bond they have obtained possession of the property.</p> <p>Under such circumstances, the sureties upon the redelivery bond are. also bound, as against the obligee named therein, by signing under what appeared to be the signatures of the principals, thereby estopping themselves from questioning their genuineness.</p> <p>The fact that, upon a special execution for the return of the property held under a redelivery bond, the sheriff visited the mill where the property was in the custody of a third person, who did not allow him to do anything further toward taking possession than to check up the different articles to see that all the property described in the execution was there, does not constitute such a taking of possession by the sheriff as to excuse a return of the property in compliance with the conditions of the bond.</p> <p>The parties to such a bond are not relieved from liability for non-return of the property, as required by the judgment, by the institution of injunction proceedings by a stranger to the action after an opportunity had been given for the return of the property, if the judgment defendant had been in a position to make return.</p>

<p>PLEADING—ACTION BY EXECUTOR — ALLEGATION AS TO POWERS—AUTHORITY TO MORTGAGE.</p> <p>In a suit for the foreclosure of a mortgage, executed by the executor of a decedent’s estate, an allegation in the complaint that the will authorized and directed said executor to administer upon said estate without the intervention, order or advice of any court, and to fully execute all its terms and provisions, sufficiently shows that no letters testamentary were required in the settlement of the estate.</p> <p>A complaint for the foreclosure of a mortgage, executed by the executor and trustee of a decedent’s estate, sufficiently alleges the power of the executor under the will to make the note and mortgage in controversy, when it appears from the complaint that it was the intention o£ the testator that the estate should be administered without the aid of any court, that the executor and trustee had performed all the terms and conditions of said will, that he had executed the note and mortgage, and that his action therein had been fully confirmed by the court; the necessary inference from such allegations being that the execution of the note and mortgage was within the powers conferred by the will.</p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, King County. </p>

<p>MORTGAGES—POSSESSION OE MORTGAGEE — APPOINTMENT OE RECEIVER — AFFIDAVITS — EJECTMENT — ESTOPPEL.</p> <p>Where a mortgagee has secured possession of the mortgaged premises without fraud, and there is any indebtedness due under the terms of the mortgage, the mortgagee cannot be deprived of its possession by the appointment of a receiver.</p> <p>The fact that the mortgagee goes into possession of mortgaged premises under an agreement with the mortgagor which the mortgagee failed to sign, but which it recognized and acted under and placed upon record, makes it a binding and valid agreement on both parties.</p> <p>In order to secure the appointment of a receiver, the plaintiff must clearly establish by the proofs that a receiver is necessary to prevent fraud, protect the property from injury or preserve it from destruction, mere allegations of such facts being insufficient.</p> <p>A mortgagee in possession cannot be dispossessed by an action in ejectment, so long as there is any question whether the mortgage debt has been paid in full.</p> <p>The fact that a mortgagee in possession of premises is committing waste will not authorize the appointment of a receiver in the absence of proof of the mortgagee’s insolvency.</p> <p>Where a party to a contract has acted under it and received benefits from it, he is estopped from denying its existence and force.</p> <p>Upon an application for the appointment of a receiver, the moving party has no right to read affidavits upon the hearing, which have not been first served upon the adverse party.</p>

<p> Appeal from Superior Court, Spokane County. </p>

<p>CONTRACT OF SALE — OFFER AND ACCEPTANCE BY CORRESPONDENCE.</p> <p>A contract for one hundred cars of shingles is not established when the only evidence thereof is correspondence of the parties showing that the purchaser agreed to take a certain kind of shingles at a specified price from the seller, to be shipped as ordered, which terms were accepted by the seller, and that subsequently the purchaser ordered five cars by wire, and, by letter of tbe same date, proposed to take a hundred cars at the agreed price, which letter was in the seller’s hands at the time he filled the order for five cars, there being no other act or agreement on the part of the seller showing an acceptance of the proposition..</p>

<p> Appeal from Superior Court, King County. </p>

<p>JUDGMENT LIEN — HOW CREATED—TRANSCRIPT PILED WITH AUDITOR— REQUISITES—APPEAL — SERVICE OF NOTICE ON PARTY—RIGHT TO COSTS.</p> <p>Under §449, Code Proc., the filing in the county auditor’s office of a transcript of a judgment, instead of the abstract thereof required to be entered by the clerk in the execution docket, is all that is necessary to create a lien upon the judgment debtor’s land in the county.</p> <p>The provision of § 449, Code Proc., requiring that the abstract of judgment filed in the auditor’s office shall set forth the names, at length, of all the parties, is merely a requirement that the names shall be stated as shown by the judgment entry, and has no other reference to the names of the parties.</p> <p>The fact that the amount of costs to which a judgment creditor is entitled is not shown in the transcript filed in the county auditor’s office will not defeat the lien of the principal judgment itself, to which the adjudication as to costs is merely an incident.</p> <p>The fact that one of the parties to an action, against whom judgment has been rendered, has been served with notice of appeal, does not require, his appearance in the appellate court, unless he desires to join in the appeal; and when he appears and asks for a dismissal of the appeal as to him, he is not entitled to costs.</p>

The lien notice of Paul Hopkins alleged that he “claims and holds a lien upon said premises and property herein above described for labor performed and material furnished as blacksmith and ironworker upon the erection and construction of said shingle mill, dry house plant, machinery and buildings upon said premises belonging to Jamison-Dixon Mill Co. That he furnished iron work to the reasonable value of $114.01, and furnished and performed labor to the reasonable value of…

<p> Appeal from Superior Court, Yakima County. </p>

<p> Appeal from Superior Court, Chehalis County. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court. King County. </p>

<p> Appeal from Superior Court, King County. </p>

<p>SUPERSEDEAS BOND ON APPEAL — AMOUNT OP PENALTY—FAILURE OF COURT TO FIX PROPER SUM — CERTIORARI.</p> <p>Under Laws 1893, p. 122, § 7, providing that a supersedeas bond, “ where the appeal is from, a final judgement for the recovery of money, shall be in a penalty double the amount of the damages and costs recovered in such judgment,” one appealing from a judgment of foreclosure of a mechanic’s lien is required to give such bond in double the amount of the judgment and costs.</p> <p>The writ of certiorari is the proper remedy for the review of the action of the court in fixing the amount of the supersedeas bond in a sum other than is required by statute.</p>

<p>MECHANICS’ LIENS — SUFFICIENCY OF NOTICE—DESCRIPTION OiF PROPERTY— NAME OF OWNER — ALLEGATION OF EMPLOYMENT.</p> <p>A claim of lien which describes the property as “ that certain two-story brick building, situated on lots numbered 14, 15,16 and 17, in block 670 of the Everett Land Company’s addition to the city of Everett, Snohomish county, Washington, which building is known as the Slack building, and fronts on Hewitt avenue in said city, and is about 120 feet front and extending back from said avenue 80 feet in depth,” is sufficient for purposes of identification, although not located in such addition to the city, when there is but one such numbered block and but one such named street in Everett, neither of which appear upon the plat of the land company’s addition, and there is but one such building and that is located upon Hewitt avenue in block 670 of the original plat of Everett.</p> <p>A claim of lien which states that the real owner has but an equitable interest in the premises, and mistakenly attributes the legal ownership to another, does not thereby invalidate the lien.</p> <p>A claim of lien which states that the claimant was employed by two persons, as contractors on the building, when in fact one was but a sub-contractor, will not invalidate the lien, especially in view of the fact that the claimant had been told by both that they were contractors for the erection of the building.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>JUDGMENT LIENS — EFFECT OF MODIFICATION OF JUDGMENT.</p> <p>Code Proc., § 1397, providing that “ when a judgment is modified all liens and securities obtained under it shall be preserved to the modified judgment,” applies as well to judgment liens upon personalty as upon realty.</p> <p>The fact that a judgment has, in form, been set aside and vacated and a new one entered, will not destroy the lien of the former judgment, as provided by Code Proc., § 1397, when the new judgment is of the same tenor and effect,, with but a proportionately slight reduction in the amount, and is, in truth, a modification of the original judgment.</p>

<p> Appeal from, Superior Court, King County. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, Jefferson County. </p>

<p> Appeal from Superior Court, Chehalis County. </p>

<p>JUDGMENT — PREMATURE ENTRY—MOTION TO VACATE.</p> <p>The premature entry of a judgment upon the verdict of a jury before notice of a new trial could be interposed, is not groúnd for vacating the. judgment, when the motion for a new trial has, nevertheless, been given a full hearing and decided on its merits.</p>

<p>CORPORATIONS—LEGALITY OF CONTRACTS—ESTOPPEL. -</p> <p>Where the president and secretary of a corporation, without authorization of the board of directors, have purchased the shares of a stockholder for the benefit of the corporation, giving in part payment therefor funds of the corporation and executing its notes for the balance, and such action has been acquiesced in for more, than two years, and in effect ratified by a sale of all the corporate property, including the stock in question, to another corporation, which took with full knowledge of the transaction, the objection cannot be raised that the officers of the former corporation acted beyond the scope of their authority in the issuance of the notes.</p>

<p>SELLING LIQUOB WITHOUT LICENSE—SUFFICIENCY OF INFOBMATIONDISMISSAL-DISCHAEGE OF DEFENDANT.</p> <p>In an information charging defendant with the sale of intoxicating liquors without having obtained a license therefor, in violation of § 133, Penal Code. An allegation that the name of the person to whom the sale was made is unknown, is sufficient, without specifying the name of the individual to whom sale was made.</p> <p>Where an information is found insufficient upon demurrer, it is error for the court to discharge defendant from custody, unless the demurrer is sustained because the information contains matter which is a legal defense to the action.</p> <p>The sufficiency of an information should be challenged by motion to set aside or by demurrer, or both, prior to the entry of plea of not guilty, and it is irregular and improper to permit its sufficiency to be challenged for the first time by objections to the introduction of testimony.</p>

<p> Appeal from Superior - Court, King County. </p>

<p>DISTURBING RELIGIOUS SOCIETY — SUFFICIENCY OF INFORMATION— STATUTE —VALIDITY OF — CONSTRUCTION.</p> <p>The failure to charge the disturbance of a religious society as having been done wilfully will not render the information insufficient, if other words of the same import are used.</p> <p>Sec. 95, Penal Code, providing for the punishment of those guilty of disturbing a religious society is not void for uncertainty, the word “disturb,” having a well known legal significance.</p> <p>The words “religious society,” as used in §95, Penal Code, include all religious societies or congregations which meet for public worship, without regard to their being incorporated.</p>

<p>SALE — IDENTITY OF PROPERTY — WAREHOUSEMAN'S RECEIPT.</p> <p>A sale of a given quantity of shingles is not valid, as between the alleged purchaser and a stranger to the contract, when there is no change of possession from the seller to the purchaser, and there is no description of the shingles sufficient to enable the exact property intended to be conveyed to be identified and selected from that with which it is surrounded.</p> <p>The fact that a receipt given by a mill owner is signed by the manager of his mill as “warehouseman,” does not make it a warehouseman’s receipt.</p>

<p> Appeal from Superior Court, Snohomish County. </p>

<p> Original Application for Mandamus. </p>

<p> Appeal from Superior Court, Clallam County. </p>

<p>ASSAULT WITH INTENT TO RAPE—INSTRUCTIONS.</p> <p>Although upon an information as framed, charging the crime of assault with intent to commit rape, the defendant might properly be convicted of assault and battery, the failure of the court to so instruct the jury is harmless error when the instructions, given at the request of the defendant, required the jury, in order to render the verdict returned by them, to find from the evidence beyond any reasonable doubt not only that the defendant committed an assault, but also that he intended to carry the force, if necessary, to the extent of a consummated rape.</p> <p>Although an instruction to the jury in a prosecution for an assault with intent to commit rape may improperly charge them, “the law presumes that a person intends all the natural, probable and usual consequences of his acts,” still such charge is harmless error when coupled with an admonition to acquit “unless the assault was made under such circumstances as show beyond any reasonable doubt that he intended to accomplish his purpose, at all events against any resistance which she might oiler.”</p>

<p> Appeal from Superior Court, Snohomish County. </p>

Action of unlawful detainer, for the recovery of rents and taxes and the forfeiture of a lease instituted by Mary A. Gaffney against John Megrath and others. Trial by the court, who made findings of fact and conclusions of law.

<p>REDEMPTION OF MORTGAGE FORECLOSURE — ACCOUNTING BY PURCHASER.</p> <p>Under §519, Code Proc., a purchaser upon a foreclosure sale, who takes possession of the premises and leases them to another, cannot be required to account, at the suit of the mortgagor to redeem, for the rents and profits arising from the use and occupation of such premises for the period between sale and redemption.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>CAPITOL'COMMISSIONERS—CONTRACT POR STATE CAPITOL — RIGHT TO REJECT BIDS.</p> <p>A discretionary power is conferred upon the hoard of state capitol commissioners, under Laws 1893, p. 466, § 7, to reject all bids called for by .them for the..construction of a state capitol building; and although the courts may be entitled to some control over the exercise of such discretion, they are not warranted in interfering upon the rejection of all bids and the issuance of a new call prescribing different conditions.</p>

<p> Appeal from Superior Court, Pierce County. </p> <p>On motion to vacate judgment against appellants for costs on appeal.</p>

<p>HOMICIDE — SETTING SPRING GUN — QUESTION OF FACT FOR JURY — SUFFICIENCY OF INFORMATION—EVIDENCE OF CHARACTER.</p> <p>The reasonable necessity of employing spring guns and other defensive machinery for the protection of property, which has resulted in the death of a trespasser, is a question of fact which should be left to the jury.</p> <p>Upon a prosecution for murder, death having resulted from the discharge of a heavily loaded spring gun, caused by pushing open the door of a dwelling house, the defendant is not entitled to an instruction that he had an absolute right to set the gun as he did, when there was no one in the dwelling whose life could have been endangered by any burglary committed thereon.</p> <p>A verdict of murder in the second degree is warranted when the evidence shows that defendant, on absenting himself from his cabin for several months, loaded a spring gun with a double charge of powder and shot, together with a rifle cartridge and set the gun with the muzzle close to the door so that any one pushing the door open would discharge the gun and cause his death.</p> <p>An information charging defendant with having purposely killed the deceased is sufficient when the proofs show a general intent to kill without any intention of killing a particular person.</p> <p>Evidence tending to show the good reputation of defendant should be confined to a time not too remote from the date of the commission of the crime.</p>

<p>APPEAL—SERVICE OF NOTICE — NEGOTIABLE INSTRUMENTS — PAROL EVIDENCE—LIABILITY AS MAKER OR INDORSER.</p> <p>Service of notice of appeal and notice to settle a statement of facts upon the attorney, of record for the adverse parties is sufficient, when there is no showing that there was any substitution of attorneys.</p> <p>Parol testimony is not admissible for the purpose of showing that the signer of a promissory note was not intended by the parties to be liable thereon in any capacity.</p> <p>One who, prior to delivery, signs the face of a promissory note as maker cannot show by parol testimony that be is in fact an indorser thereon and not a maker; nor is bis liability in such case changed to that of an indorser by the fact that at the time he transmitted the note to the payee he inclosed a letter with the note stating that he had indorsed it.</p>

<p> Appeal from Superior Court, Thurston County. </p>

<p>LIBEL—WHAT CONSTITUTES — JUSTIFICATION — PLEADING — EVIDENCE-FINDING OF JUEY — EEVIEW.</p> <p>The publication by a newspaper as an item of news of certain actions and conduct of an individual, at the time of the supposed discovery of a crime, from which damaging inferences might be drawn as to his having committed the crime, is not libelous, there being no direct charge of crime, if what is stated concerning his actions and conduct is true.</p> <p>Under Code Proc., § 212, the truth of the statement of acts and facts may be shown to defeat recovery in an action for libel, although it is pleaded merely in mitigation of damages and not by way of justification.</p> <p>A publication which appears libelous upon its face may not be so in fact, by reason of something which is not apparent from the words themselves, and which may be shown by pleading and proving extrinsic facts in mitigation or in justification.</p> <p>The finding of a jury upon the question whether a publication is within the definition of libel correctly given them by the court, will not be disturbed.</p>

<p>OBTAINING MONEY BY FALSE PRETENSES — INSUFFICIENCY OF INFORMATION EVIDENCE — VARIANCE.</p> <p>In an information for obtaining money under false pretenses it is unnecessary, under the code of criminal procedure of this state, to set out the kind, character or denomination of the money obtained.</p> <p>An information for obtaining money under false pretenses need not aver the ownership of the money with directness and certainty, if it is made to appear from the information, considered as a whole, that the money was the property of the prosecutor.</p> <p>In such an information, an allegation that the prosecutor, being induced by certain pretenses and representations, “ did buy ” certain bars of metal from defendant “ and did then and there pay ” defendant five thousand dollars, is equivalent to an allegation that the defendant then and there “ obtained ” said sum of money.</p> <p>In a prosecution for obtaining money under false pretenses, the question for the jury from the facts and circumstances of a given case, is not whether a person exercising ordinary prudence and caution would have been misled, but what was the effect of the false representation upon the mind of the person defrauded, and what was the result.</p> <p>The fact that other considerations mingle with the false pretense, having an influence upon the mind and conduct of the prosecutor, is immaterial, if the false pretense is the operative, moving cause of his parting with his property.</p> <p>Although an information for obtaining $5,000 in money for certain bars of metal, upon the false representation that they were of pure gold of the value of at least $20 per ounce, alleges that the bars of metal were of no value, the variance is immaterial when the proof shows that they in fact contained copper worth about $120, but no merchantable gold.</p>

<p>NEGOTIABLE INSTRUMENTS — EXTENSION OF PAYMENT — DISCHARGE OF SURETIES — EVIDENCE.</p> <p>The fact that one who signed a note as maker was in reality a surety, would not entitle him to discharge from liability by an extension of the time of payment, unless the holder of the note had actual notice of the suretyship at the time of extending payment.</p> <p>Parol evidence is admissible for the purpose of showing that one who appears upon the face of a note as a maker is in fact a surety, and also for the purpose of showing knowledge of the holder that such signer was merely a surety.</p> <p>In an action upon a promissory note executed by three persons apparently as makers, but of whom two were sureties for the other, notice to the holder of such suretyship is not established by the introduction in evidence of letters from him to the principal, in answer to letters from the latter asking for further time, in which the note was designated as ‘ your note, ” and by proof that one of the sureties, subsequent to a payment on the note and an agreement for its extension, had told the holder’s agent that he was only a surety.</p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from, Superior Court, Skagit County. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from, Superior Court, Spokane County. </p>

<p> Appeal from Superior Court, Lincoln County. </p>

<p>Appeal from Superior Court; King County.</p>

<p>COUNTIES-APPEAL EBOM ALLOWANCE OE CLAIMS.</p> <p>An appeal from the order of the board of county commissioners can be prosecuted only by one who was a party to the proceedings before the board.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>TAXATION — COUNTY EXPENSES — CONSTRUCTION OP ACT.</p> <p>Art. 7, § 8, of the constitution, providing that, whenever the expenses of any fiscal year shall exceed the income, the legislature may provide for the levying of a tax for the payment of the deficiency, has application to matters of state revenue and expenses, and not to those of counties.</p> <p>There is no limitation, under the constitution, upon the legislature’s making provision for the levy of taxes by the hoard of county commissioners for the payment of obligations theretofore incurred by the county, as well as those to be incurred during the ensuing fiscal year.</p> <p>In view of the constitutional provision that counties are authorized to incur and carry indebtedness, and in view of their universal custom, recognized by every department of the government, of carrying such indebtedness in the shape of warrants and providing for their payment in the order of issuance, § 63 of the revenue act of 1893, declaring that county taxes shall be based upon the estimated county expenses for the ensuing year, cannot be construed as restricting the funds arising from the annual tax levy in any given year to the payment of such obligations only as may be incurred during the fiscal year following such levy.</p>

<p>APPEAL—STATEMENT OF FACTS—MECHANICS’ LIENS—ENFORCEMENT AGAINST COMMUNITY PROPERTY — FORECLOSURE JUDGMENT — WHEN WIFE BOUND.</p> <p>Under Laws 1893, p. 115, § 10, exhibits and written evidence introduced upon the trial of a cause need not be attached to the statement of facts on appeal until it is certified, if appropriate reference to the exhibits has been made in the copy of the statement served upon respondents.</p> <p>A lien notice which describes the husband as the “reputed owner ” of the premises is not invalid, where it appears upon the trial in a foreclosure suit in which bojfch husband and wife are joined, that the property was in fact owned by the community, but that such fact was not known to the claimant at the time of the filing of his lien notice.</p> <p>Where several actions for the foreclosure of mechanics’ liens were consolidated for trial, a decree rendered in the consolidated cause upon a finding that the ownership of the property was in the husband, when in fact it belonged to the community, is binding on the wife, when she had been made a party to some of the actions, knew of the pendency of the others, had appeared in the trial of the consolidated cause, and, having knowledge of the decree rendered therein, had failed to exercise her right of appeal.</p> <p>A person may be bound by a decree, though not a technical party to the action, if he be interested in the subject matter of the action and exercise the right of participating in the defense thereto.</p>

<p> Appeal from Superior Court, Whatcom County. </p>

<p>INSURANCE — ACTION ON POLICY — LIMITATIONS — EFFECT ON MORTGAGEE — JUDGMENT-CONFINED TO ISSUES PRESENTED.</p> <p>A condition in a policy of fire insurance limiting the right of action thereon to a period of twelve months after the date of the fire causing a loss, is applicable to the mortgagee as well as to the assured, when the mortgage clause endorsed on the policy as a contract between the insurer and the mortgagee does not expressly abrogate the stipulation of the policy concerning the time in which an action shall be brought.</p> <p>A judgment which goes beyond the issues and attempts to settle questions not submitted for a judicial determination, is unwarranted.</p>

<p> Appeal from Superior Court, Yakima County. </p>

<p> Appeal from Superior Court, Thurston County. </p>

<p> Appeal from Superior Court, King County. </p>

<p>DISCOVERY—PILING OP INTERROGATORIES—REVIEW ON APPEAL — EFFECT OF PARTIAL APPEAL.</p> <p>While a technical bill of discovery is not proper under the civil procedure of this state, yet the defendant may, under Code Proc., §1660 et seq., in an action instituted for legal and equitable relief, be compelled to make a discovery of facts.</p> <p>Where an appeal has been taken from a portion only of a judgment, the appellant cannot challenge the sufficiency of the complaint.</p>

<p>INSURANCE — CONCEALMENT OF FACTS—RELEASE — FRAUD.</p> <p>The failure of the assured at the time of making application for insurance to volunteer his fears upon the subject of incendiarism will not render the policy void, when no questions were asked him upon that subject and his fears were based upon the immaterial circumstances that his clerk had shot at a supposed burglar and that an insolvent merchant in the same block whose stock had run down, had removed his family from town and stored his household goods in a building at a distance from his storeroom.</p> <p>In an action upon a policy of fire insurance to which a plea of release has been interposed by the defendant, the plaintiff may, under the code system, set up in his reply that the release was procured by fraud, and is not required to first obtain a decree in equity canceling the release before instituting an action upon the policy.</p> <p>In such an action, it is not necessary to restore the consideration received for the release before attacking it on the ground of fraud, if such restoration be provided for in the judgment sought.</p> <p>Fraud in procuring the release by the assured of an insurance policy is established, by proof that, after an adjustment of the loss, the agent of the insurance company induced the assured to believe that it was the law, by reading from various law books, that apprehension of incendiarism undisclosed by the assured at the time of application for a policy would avoid it, and that relying upon such belief and the representation of the adjuster, in whom he had confidence, that it would do no good to consult a lawyer, he had executed the release and surrendered the policy.</p> <p>Where the relation of debtor and creditor exists between an insurance company and the assured, by reason of the fact that the amount of loss under a policy of insurance had been adjusted and determined and there is no bona fide ground of dispute concerning the company’s liability, the release by the assured of the whole claim in consideration of payment' of part is not based upon sufficient consideration, and the assured may maintain an action for the whole amount due.</p> <p>The failure of the court, in an action upon an insurance policy by an assignee, to charge the jury that the assignee had no greater rights than his assignors would have had, if suit had been brought by them, is not prejudicial.</p> <p>An instruction, referring to the “ facts and circumstances disclosed on the stand by the witnesses,” is not misleading when there is also written evidence, when such statement was followed by and connected with the further charge to the jury that “ you are the sole judges of the facts. These facts have been given you on the stand through witnesses and exhibits that have been placed in evidence here to enable you to find the facts.”</p>

<p> Appeal from Superior Court, King County. </p>

<p>USUBY—WHAT CONSTITUTES — PLEADING.</p> <p>Under the laws of this state (Gen. Stat. §§2795, 2796), fixing the legal rate of interest at ten per cent, per annum, but allowing any rate of interest agreed on by the parties in writing to be valid and legal, an oral contract for the payment of five per cent, per month, although not enforcible, is not usurious.</p> <p>Voluntary payments of excessive interest cannot be recovered back, or applied to the payment of the principal debt, in the absence of a statute imposing a penalty or forfeiture of that nature.</p> <p>Usury must be pleaded when relied on as a defense.</p>

<p> Appeal from Superior Court, Spokane County. </p>

<p>MENS — CONVERSION OF TIMBER INTO SHINGLES.</p> <p>A lien upon shingle bolts is authorized by Laws 1893, p. 428, §2, which confers a right of lien upon all persons performing work in manufacturing sawlogs or other timber into lumber and shingles, defining lumber to be “all logs or other timber sawed or split for use,” and “ every article of whatsoever nature or description manufactured from sawlogs or other timber.”</p>

<p>RECEIVERS — LIABILITIES — PAYMENT OP MONEYS UNDER DIRECTION OP COURT.</p> <p>A receiver who, without securing a modification of a decree which is inconsistent with the findings and conclusions of the court, has followed the court’s conclusions and made payment of funds accordingly, can he compelled to pay a claimant a sum of money in excess of what is remaining in his hands, where this sum is due according to the decree as actually rendered.</p>

<p>TAXATION-MANNER OP LISTING BEAL ESTATE.</p> <p>A statutory provision requiring a separate valuation of distinct parcels of land for purposes of taxation, is for the benefit, and involves a substantial right, of the owner, and an omission to comply therewith will render the assessment illegal and void.</p> <p>Where the law requires that the assessor shall view and determine the value of each tract or lot of real estate listed for taxation</p> <p>and shall enter the value thereof opposite each description of property, the assessment is invalid when separate lots have been grouped together and valued in gross; and the fact that the treasurer after-wards carried out in detail the valuations given would not give efficacy to the assessment.</p>

<p>' DISMISSAL OF ’APPEAL — VOID TAX JUDGMENT.</p> <p>Laws 1893, p. 372, § 106, providing for the deposit of sufficient money to pay the judgment and costs upon appeal from a judgment for the sale of lands for taxes, does not apply where the assessment was absolutely void.</p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, Snohomish County. </p>

<p> Appeal from Superior Court, Spokane County. </p>

<p> Original Application for Prohibition. </p>