Volume 110 — Washington Reports

, entered April 4, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a life insurance policy.

<p>Master and Servant (93, 98)—Assumption op Risks—Mining— Servant’s Duty to Inspect. Miners, injured by tbe fall of overhead rock while at work in a chamber, assumed the risks, where it was their duty to make an inspection of the walls before starting work, and to make them safe or réport any unsafe condition which they could not remedy, and where they went to work without inspecting or reporting upon a portion of the walls which they could not inspect because out of reach.</p> <p>Same (93, 98, 100)—Assumption op Risks—Mining—Notice— Changing Conditions. Miners working in a chamber where conditions were constantly changing assumed the risks where they elected to continue working in a dangerous place requiring temporary timbers without complaint or request for timbers.</p> <p>Same (157, 161)—Assumption op Risks—Questions por Jury— Inperence From Inspection. Where miners were injured by the fall of overhead rock and there was no testimony tending to indicate that it fell from walls that had not been inspected, and they did not know where it fell from, the fact that part of the walls had been carefully inspected does not warrant the inference or presumption that it fell from some other part of the wall.</p>

<p>Appeal (219)—Notice—Service on Attorneys—Effect. Upon an appeal in a will contest, attorneys who were allowed a fee by the court below cannot claim want of notice of the appeal affecting the judgment for their fees, where they were served as attorneys for the contestant and appeared and resisted the appeal.</p> <p>Appeal (477, 483)—Decision—Scope—Effect on Attorney’s Fees. The reversal of a judgment in a will contest setting aside the probate of a will, in which attorneys for the successful contestant were allowed a fee of $1,000, has the effect of setting aside the allowance, although it was not expressly mentioned in the opinion.</p> <p>Wills (51)—Contests—Attorney’s Fees. The allowance of an attorney’s fee to the unsuccessful contestant in a will contest rests in the discretion of the trial court.</p>

<p>Mandamus (39)—Subjects and Pubposes—Title to Office. Mandamus does not lie to compel a city clerk to issue a certificate of election to one of two contending candidates, upon allegations of an illegal canvass of the votes, after having issued a certificate to the other candidate, since the same cannot be collaterally attacked by mandamus; quo warranto being the sole remedy to try title to office.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered October 31, 1918, upon findings in favor of the plaintiff, in consolidated actions for personal injuries sustained in an automobile collision, tried to the court.</p>

, entered June 23, 1919, dismissing on the merits an action in tort on challenge to the sufficiency of the evidence, and denying plaintiff’s motion for a voluntary nonsuit.

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered October 25, 1918, setting aside adoption proceedings, after a hearing on the merits.</p>

<p>Venue (6)—Nature of Action—Ancillary Proceedings—Attachment of Real Estate in Transitory Action. An action upon a promissory note in which real estate was attached is not an action for the recovery of, quieting title to, or for the enforcement of liens upon real estate, within Rem. Code, § 32, laying the venue of such actions in the county in which the real estate is situated; since the attachment is but an ancillary proceeding not affecting the same.</p> <p>Same (12, 16)—Change—Right to Change—Residence of Defendant. Under Rem. Code, § 208, where the action is not a local one, the defendant is entitled, as a matter of right, to a change of venue to the county of his residence, and the court, on timely application, has no discretion in the matter.</p> <p>Same (16)—Motion Based on Other Grounds—Effect. Defendant’s motion for a change of venue to the county of. his residence, as a matter of right under Rem. Code, § 208, is not affected by a further motion for the change on the ground of convenience of witnesses, under Id., § 209, and there being no dispute as to his residence, the change should be granted without passing on the controverted facts as to convenience of witnesses.</p> <p>Same (20)-—Demand 'for Change—Time for Demand—Answer or Demurrer—Necessity. Rem. Code, § 208, providing that a defendant, at the time of answering or demurrer, may file an affidavit of merits and move for a change of venue to the county of his residence, is sufficiently complied with hy making the application at the time of filing written notice of appearance, accompanied hy a demand and affidavit of merits.</p> <p>Prohibition (7)—Existence of Other Remedy — To Compel Change of Venue. Prohibition lies to compel a change of venue to the county of defendant’s residence, since the remedy hy appeal is inadequate.</p>

<p>Appeal (140)—Preservation oe Grounds—Exceptions—Evidence. Error cannot be assigned on tbe denial of further cross-examination of a witness, where no exceptions were taken to the ruling.</p> <p>Appeal (457)—Review—Harmless Error—-Evidence. In an action for a broker’s commission, in which it appears that defendants refused to consummate a sale at any price, error cannot be assigned upon the refusal to allow cross-examination of the purchaser as to his ability to pay.</p> <p>Brokers (12-17) — Commissions — Performance of Contract. Brokers, finding a purchaser able and willing to buy at the price fixed, are entitled to their commissions, where the owners refused to sell at any price.</p>

, entered February 14, 1919, upon findings in favor of the plaintiff, in an action to recover the proceeds of a sale of shingles, tried to the court.

, entered May 8, 1919, upon findings in favor of the plaintiffs, in an action to recover the value of shingles delivered by a carrier to the consignee after demand by the consignor.

. Appeal from judgments of the superior court for Grays Harbor county, Abel, J., entered December 13, 1918, upon findings in favor of claimant to intoxicating liquors, seized under search warrants, after a trial on the merits to the cohrt.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered May 3, 1919, upon findings in favor of the plaintiff, in an action for conversion, tried to the court.</p>

, entered October 30, 1918, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried on the merits to the court.

<p>Application for a writ of mandamus filed in the supreme court November 5, 1919, to require the commissioner of public lands to execute a lease.</p>

<p>Statutes (77)—Constbuction—Penal Statutes. In the construction of a penal statute, there can be no recourse to the intention of the act to establish its interpretation—or to make criminal that which is not so denominated.</p> <p>Fish (18)—Offenses—Repobt of Fish Caught. Under Laws 1917, pp. 786, 793, §§ 51, 52, which require gill net fishermen to be licensed and to make reports of the number of fish caught, the statutory exemption from additional fees does not absolve gill net fishermen from the necessity of making the report.</p> <p>Same (18). Laws 1917, p. 793, § 52, requiring gill net fishermen to report the number of “fish caught during the preceding four months period,” does not require any report where no fish were caught during such period.</p>

<p>Appeal (452)—Review—Harmless Error—Trial de Novo. Upon a trial de novo on stipulated facts, the supreme court will disregard facts not properly pleaded and evidence not properly in the record.</p> <p>Carriers (12, 22)—Bills oe Lading—Construction—Place of Delivery. An ocean carrier of tea under a through hill of lading to interior points cannot recover its charges on arrival of the goods at Seattle, although the ocean charges were segregated and the goods were to he delivered from the ship’s deck for convenience of connecting railways, where the hill of lading totaled the ocean and freight charges as “freight payable on delivery”; since a carrier must complete delivery to the consignee before it is entitled to freight.</p> <p>Same (19-26) —Delivery — Acceptance at Intermediate Port. Where an ocean carrier of tea, consigned to interior points under through bills of lading, delivered the goods at a dock for the convenience of connecting railways, where they were damaged, commingled and partly destroyed, and insurance adjusters took possession to recondition and forward identified portions of the consignments or sell the damaged part, “with the assent of all parties in interest,” there was in effect a voluntary acceptance at an intermediate port by the consignees of the identified goods, rendering them liable for the ocean freight charges; but the carrier could not recover ocean charges on unidentified and lost goods, since the owners being unknown did not voluntarily accept delivery at the dock.</p> <p>Carriers (20)—Custom (5)—Modifying Contract. A custom of the port of Seattle for rail carriers to advance ocean charges cannot be shown to modify a through bill of lading made in the Orient which provided that it was to be construed according to English law.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered March 5,1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered May 26, 1919, granting a new trial, in an action for damages from fire, after a verdict in favor of the plaintiff.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered September 22, 1919, confirming a local improvement assessment, upon appeal from the city council.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered July 17, 1919, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

Application filed in the supreme court January 20, 1920, for a writ of mandamus to compel the state auditor to accept bonds and draw a warrant therefor.

, entered December 7, 1918, upon findings in favor of tbe plaintiff, in an action to try title to overlapping mining claims, tried to the court.

<p>Carriers (77-3)-—Negligence—Elevators. The highest degree of care compatible with the practical operation of a passenger elevator in an office building does not require the installation of a safety device preventing the moving of the elevator while the doors are open, where there was no evidence that such devices were commonly used in that class of "buildings and the only testimony on the subject negatives its practicability; and in such a ease it is error to submit the question to the jury.</p> <p>Witnesses (11)—Competency—Age and Maturity op Mind—Discretion. Whether a child six years of age was competent as a witness rests in the discretion of the court, and it is therefore not error to so instruct, and withdraw the subject from the consideration of the jury.</p> <p>Appeal (443)—Review—Harmless Error—Favorable to Appellant. Error in not permitting a child to testify for the respondent is error favorable to the appellant.</p>

<p>Telegraphs and Telephones (5)—War—Regulation—Powers oe State Commission in War Time. During the period of the possession, control and supervision of the telephone and telegraph systems by the postmaster general in the exercise of war powers, the state public service commission had no jurisdiction to make any order regulating the tolls that may be charged.</p> <p>Appeal (11, 102)—Jurisdiction—Moot Question—Cessation oe Controversy. An appeal by interested cities from a judgment regulating the tolls that may be charged for telephone service of systems operated by the postmaster general in the exercise of war powers will not be dismissed on the ground of cessation of the controversy by a return of the system to the owners, where the judgment fixed the tolls that may be charged and might work to the prejudice of the cities in the future.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wilson, J., entered July 9, 1919, dismissing on the merits, an action for a divorce, tried to the court.</p>

, entered October 11, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for the death of a minor child, after a trial on the merits.

, entered June 19, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained upon a sidewalk.

<p>Wills (7)—Testamentary Capacity — Evidence—Sufficiency. Want of testamentary capacity will not be found where it appears that the testator knew and comprehended the transaction and the nature and extent of his property, and recollects the object of his bounty.</p>

<p>Husband and Wife (94)—Community Property — Judgment — Form. In an action against guarantors and their wives, a verdict and judgment against H. G. N. and O. M. N., his wife, is in effect a judgment against the community and not objectionable as a separate judgment against the wife.</p> <p>Guaranty (9)—Construction — Extent of Liability — Future Sales. A guaranty agreement to save from loss an account of merchandise sold or to be sold to a corporation, covers for future as well as past sales.</p> <p>Assignments for Benefit of Creditors (35)—Rights of Assignor —Release of Debts. A voluntary assignment for the benefit of creditors is not a final payment and settlement of the .indebtedness where there was nothing to that effect'in the assignment and no agreement on the part of creditors to release the assignor.</p>

<p>Sales (176)—Conditional Sales—Recobding—Time Fob. Where a substantial part of machinery sold under a conditional bill of sale, and constituting when put together a complete sawmill, was not furnished until after the bill of sale was filed for record, the filing was within time.</p> <p>Receivers (40-1)—Title and Possession — Adverse Claim; to Property Conditionally Sold. Where an insolvent held property under a conditional bill of sale, the vendor may make demand on the receiver and file a petition in the receivership proceedings for return of the property.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered March 27, 1919, upon the verdict of a jury rendered in favor of the plaintiff, for the sum of $2,000, in an action upon a sheriff’s official bond, after a trial on the merits.</p>

<p>Cross-appeals from a judgment of the superior court for Benton county, Holcomb, J., entered October 21, 1914, in favor of the defendant upon one cause of action, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Criminal Law (460)—Intoxicating Liquors (29, 51)—Transpor-tation—Second and Subsequent Offenses—Instructions. The aggravated offense (Rem. Code, § 6262-32), of illegally transporting liquor after having been convicted is different from and more serious than the simple offense (Id., § 6262-18); and it is an invasion of the province of the jury to instruct that the fact of the former convictions has nothing to do with the guilt or innocence of the accused, assuming that the fact was conclusively proved (Holcomb, C. J., dissenting).</p> <p>Criminal Law. (460)—Second and Subsequent Offenses—Verdict. In a prosecution for the illegal transportation of liquor after having been previously convicted under Rem. Code, § 6262-32, a general verdict of guilty as charged constitutes a finding of the prior convictions without any special finding thereof.</p> <p>Criminal Law (297)—Instructions—Grade or Degree of Offense. In a prosecution for the aggravated offense of illegally transporting liquor after prior convictions, under Rem. Code, §6262-32, defendant is entitled on request to an instruction as to the lesser or simple offense of simple transportation included in the charge.</p> <p>Criminal Law (255)—Instructions—Province of Court—Comment on Facts. In a prosecution for the illegal transportation of liquor, it is a comment on the facts to instruct that the defendant may be found guilty if he hired a taxicab in which the “suit cases containing the intoxicating liquors were carried,” in that it assumes that the suit cases contained liquor.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J., entered June 23, 1919, dismissing an action for injunctive relief.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Carey, J., entered May 28, 1919, dismissing an action for wrongful death, upon granting a nonsuit, after trial on the merits before a jury.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered June 10, 1919, upon findings in favor of the plaintiff, in an action of claim and delivery, tried to the court.</p>

<p>Master and Servant (1)—Contracts (2)—For Bonus—Certainty. An agreement to pay a salesman and clerk an annual bonus of from four hundred to five hundred dollars at the end of each year’s service is not so uncertain and indefinite as to be unenforcible.</p> <p>Limitation of Actions (37)—Computation—Entire Contracts— Installments. Until the termination of the employment, the statute of limitations does not begin to run against recovery of an annual bonus to be paid a salesman at the end of each year’s service, where the contract of hiring was for an entire period of three or four years.</p> <p>Same (91)—Evidence—Question for Jury. The question as to when the- statute of limitations commenced to run against the recovery of installments is properly left to the jury, where there was a question of fact as to whether the contract was entire or not, and whether there was a promised consideration for delay in making the payment.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered June 27, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in a parent’s action'for the wrongful death of a minor child.</p>

<p>Usury' (6)—Installments Constituting Usury. A note to secure $4,000 payable in eighty-one monthly payments of $72 each is usurious, as the recital of twelve per cent interest per annum is dominated by the amount required to be paid; and the interest must be computed by applying each monthly installment first on earned interest and the balance on the principal.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 29, 1919, dismissing an action in equity, tried to the court.</p>

<p>Cross-appeals from a judgment of the superior court for Spokane county, Hum, J., entered November 2, 1918, upon findings in favor of the plaintiff, subject to certain deductions, in an action to cancel a deed.</p>

<p>Bills and Notes (1, 18, 135)—Signature—Parties—Maker or Indorser—Evidence—Sufficiency. Defendant’s signing of a note on the left side of the bottom opposite the maker’s signature, does not give rise to any presumption that he signed as indorser instead of maker, under Rem. Code, § 3408, providing that when a signature is so placed that it is not clear in what capacity the person intended 'to sign, he is deemed an indorser.</p> <p>Same (132-134)—Admissibility of Parol Evidence to Show That Maker Signed as Surety. A contemporaneous parol agreement limiting the liability of an accommodation maker of a note by fixing a collateral source of payment is no defense, though the payee knew he was an accommodation party; in view of Rem. Code, §§ 3420, 3551 and 3582, making accommodation parties to a note primarily liable thereon.</p> <p>Banks and Banking (22)—Deposits—Application to Debts Due Bank. A banker holding a depositor’s promissory note due on demand may offset the note against deposits, but is not obligated to do so under penalty of having the note considered paid.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Davidson, J., entered February 18, 1919, dismissing an action to declare a trust, after a trial on the merits to the court.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered April 11, 1919, dismissing an action in ejectment, tried to the court and jury.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Oswald, J., entered May 6,1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

Application filed in the supreme court January 9, 1920, for a writ of prohibition to prevent the superior court for Chelan county, Grimshaw, J., from proceed- ing with an action on contract.

<p>Frauds, Statute of (37)—Requisites of Writing—Statement of Terms. To satisfy the statute of frauds, the memorandum must in itself ‘contain all the terms of the contract; and a contract partly in writing and partly in parol is an oral contract under the statute.</p> <p>Same (22)—Sale of Goods—Corporate Stock. Corporate stock is goods, wares and merchandise, within the meaning of the statute of frauds.</p> <p>Contracts (7)—Offer and Acceptance—New Proposals. An acceptance to constitute a binding contract must be as broad as the offer, and any conditions attached are in the nature of new proposals.</p> <p>Pleading (28-1)—Complaint—Distinct Counts. Upon general demurrer to a complaint stating a single cause of action in different counts, the two statements must be considered together as one.</p> <p>Frauds, Statute of (27)—Sale of Goods—Part Payment—Expenses. The payment of expenses in exploring property is not the giving of something in earnest, within the meaning of the statute of frauds, since it was not anything of value given to the other party.</p> <p>-Contracts (6, 8)—Offer and Acceptance—-Preliminary Letters. Letters indicated a purpose to open negotiations which might lead to a contract, or settle the terms of a proposed agreement, and do not constitute an offer that could be turned into a binding obligation, where they refer to prior oral negotiations and matters unintelligible, and to liens to be dealt with before consummation of a sale, and to an option the terms of which were not fixed, and to a final agreement to be arranged later.</p> <p>Frauds, Statute of (37)—Requisites of Writing—Statement of Terms—Oral Modification. A written offer to sell mining stock was not accepted so as to bring it within the statute of frauds, where, upon a conference, it appeared that there were liens against the stock, and that the seller orally agreed to modify the agreement so as to permit the amount of the liens to be withheld; since the contract would be partly in writing and partly in parol, and a modification by parol would nullify the rule of the statute.</p> <p>Beokees (30)—Actions foe Compensation—Defenses. Plaintiff, a broker, cannot claim a breach of a contract to sell mining stock to a purchaser that he might procure, nor recover damages, without showing a binding obligatory promise by defendant to sell the stock, <-where the contract did not provide that defendant should pay plaintiff for his services.</p>

<p>Appeal from a judgment of tbe superior court for Spokane county, Oswald, J., entered March 27, 1919, upon findings in favor of the plaintiff, in an action to declare a trust, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Fletcher, J., entered April 11, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

<p>Frauds, Statute op (43)-—Contracts in Part Within Statute— Trade op Real and Personal Property. An entire contract for a trade of real estate for a stock of goods is governed hy Rem. Code, § 8745, requiring all conveyances to be by deed, and not hy § 5290, relating to the sale of goods, wares and merchandise; and the part relating to the sale of land being in parol, the whole contract is void.</p> <p>Same (42)—Part Performance—Possession and Expenditures. There was no such part performance of an oral contract for the exchange of lands for a stock of goods as to materially change the situation of the parties and take it out of the operation of the statute of frauds, though the owner of the store took possession and contracted for goods, depositing the proceeds pending consummation of the deal, where there was no showing that the obligations incurred could not be satisfied from the funds deposited, or collected from the owner of the goods on his refusal to carry out the contract.</p>

<p>Appeal from an order of the superior court for King county, Smith, J., entered September 26,1919, modifying a decree of divorce as to the custody of a child, after a hearing before the court. •</p>

Proceeding- filed in the supreme court June 5, 1919, for the disbarment of an attorney, upon the findings of the state board of law examiners against the accused.

, entered January 27, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in a fall through an open trap-door, after a trial on the merits.

, entered November 14, 1918, upon findings in favor of the plaintiff, in civil contempt proceedings to enforce a decree for alimony.

<p>Appeal from a judgment of the superior court for Spokane county, Blake J., entered February 7, 1919, upon the verdict of a jury rendered in favor of tbe plaintiff, in an action for personal injuries sustained through defects in a street.</p>

<p>Landlord and Tenant (31)—Lease—Option for Renewal — Notice—Continuing Possession. Where a lease gave the right to a renewal or an extension without providing for the giving of any notice to the lefesor, the lessee is entitled to the benefit of an extension or renewal by continuing in possession at the end of the original term, without giving formal notice of intention to exercise the option, provided such possession is indicative of an exercise of the option and nothing is done to forfeit his rights.</p> <p>Pleading (73)—Reply — Departure From Complaint. Where plaintiffs, lessors, sued to recover possession of leased premises, alleging that the lease had expired,' and defendants answered that they had elected to and were holding under their option to renew the lease for a further term, a reply alleging defendants’ breach of conditions of the lease forfeiting their right to a renewal does not constitute a departure in pleadings.</p> <p>Landlord and Tenant (36-1)—Tenant’s Right to Renewal— Forfeiture—Breach of Covenants. A lessee’s right to a renewal of lease may be forfeited by breach of covenant, and the lessor should be allowed to show violation of provisions respecting the manner in which the land was to be cropped, and default in payment of rent.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered September 6,1919, upon a trial and conviction of violating municipal speed ordinances.</p>

, entered March 25, 1919, dismissing an action for injuries sustained in a collision, upon granting a nonsuit, after trial to a jury.

<p>Appeal from a judgment of the superior court for Thurston county, Wilson, J., entered July 14, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death and damages resulting from the collision of an automobile and a railway train.</p>

<p>Municipal Corporations (399, 407)—Torts—Acts or Omissions of Officers—Permit for Explosives in Harbor—Ordinances—Construction. Ordinances against the creation of a nuisance are not violated hy a city’s issuance of a permit for a scow-load of nitroglycerine to he moored to a buoy in Seattle harbor and permitting it to remain there, ordinances for the issuance of permits for landing explosives providing that they shall not he unloaded within six hours; and an ordinance designating a certain dock for such unloading does not make such permit to anchor illegal.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J., entered October 22, 1919, in favor of the plaintiff, restraining the insurance commissioner from cancelling an insurance company’s license, upon overruling a demurrer to the complaint.</p>

, entered April 28, 1919, upon findings in favor of the plaintiff, in an action for injunctive relief, and to quiet title to water rights, tried to the court.

, entered February 3, 1919, upon findings in favor of beirs, upon objections to tbe annual account of executors, after a hearing before the court.

, entered January 9, 1919, dismissing an action on contract, upon setting aside a verdict and judgment for plaintiff, after a trial on the merits before a jury.

, entered June 12, 1919, dismissing garnishment proceedings, after a trial of the issues raised by the garnishee’s answer.

<p>Indemnity (5)—Construction of Contract—Extent of Liability —“Strike” or “Labor Difficulties” in Building Bond. The fact that a plumbing contractor was suspended from a plumbers’ association and his two union plumbers quit and he was unable to get anyone to work for him, does not relieve his surety from liability for nonperformance of the contract, under the exception clause in the bond excluding liability in the case of “strikes” or “labor difficulties”; as there was no “strike” and the phrase “labor difficulties” is definitive rather than expansive.</p>

<p>Application filed in the supreme court September IT, 1919, for a writ of prohibition to prevent further proceedings by the superior court for Spokane county, Hum, J., in an action to recover excess telephone charges, upon the overruling of objections to the jurisdiction.</p>

, entered February 13, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for the recovery of stock or its value, tried to the court.

, .entered May 7, 1919, upon findings in favor of the plaintiffs, in an action to quiet title, after a trial to the court.

<p>Appeal (406)—Review—Discretion—Grant op New Trial. The granting of a new trial on discretionary grounds will not be disturbed on appeal unless it appears that there was manifest abuse of discretion.</p>

<p>Appeal from a judgment of the superior court for Grant county, Hill, J., entered January 30, 1919, upon a trial and conviction of the larceny of cattle from the range.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered June 30, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract, after a trial on the merits.</p>

<p>Master and Servant (2, 176)—Relation—Injury to Third Persons—Employees of Independent Contractor—Evidence—Question for Jury. Whether the driver of a truck belonging to defendant, a transfer company, was in the exclusive control and direction of a dealer in potatoes, so as to be his servant rather than the servant of the defendant, is a question for the jury, where the dealer had engaged the truck and driver for certain deliveries in which he accompanied the loads and was riding at the time of an accident to a third person, but giving no directions as to the operation or driving of the truck.</p> <p>Witnesses (11)—Competency—Age and Maturity of Mind. It is error to receive the testimony of a child six years of age, where it is apparent that lapse of time and many months of severe suffering had entirely erased from his mind the impressions of the facts at the time of the accident, and except as to matters frequently discussed with him, his answers showed complete lack of understanding.</p> <p>Master and Servant (173, 182-1)—Injury to Third Persons— Negligence—Driver’s Failure to Stop Truck—Question eor Jury. Where the driver of a truck, on discovering a child of tender years riding on the tool box, elected to bring the truck to a gradual stop, admonishing the child not to jump, it cannot be said that he acted wantonly or wilfully or was negligent in not bringing it to a sudden stop.</p>

<p>Appeal from a-judgment of the superior court for Lincoln county, Blake, J., entered May 28, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for services, after a trial on the merits.</p>

<p>Witnesses (11)—Competency—Age and Maturity—Discretion. The competency of a child seven years of age to testify rests in the discretion of the trial court, to be disturbed only for manifest abuse.</p> <p>Divorce (104)—Custody oe Ciiidd—Modification of Decree—Evidence—Sufficiency. Upon application for the modification of a decree as to the custody of children, their welfare is the controlling question.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered June 14,1919, upon the verdict of a jury rendered in favor of the defendants, in an action on contract, after trial on the merits.</p>

<p>Corporations (217, 218)—Insolvency—Appointment oe Receiver —Diversion oe Assets. A receiver may be appointed of an insolvent corporation that had disposed of all its assets to its president, notwithstanding creditors had a remedy to proceed directly to have the transfer set aside.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered November 7,1919, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Eminent Domain (153) — Appeal — Requisites — Bond ■— Sufficiency. Appeals in condemnation -are taken under the special act, and where the appropriating corporation appeals from a condemnation award and gives bond conditioned to pay whatever amount may be required by the judgment, as provided by Rem. Code, §§ 931, 932, a bond in the sum of $5,000 is ample, though the award was $180,000, where the appellant elects not to take possession; since it is privileged to elect whether to abandon the proceedings or pay the award and take the property, and the only judgment affecting the bond would be one for costs, which could not exceed $5,000.</p> <p>Same (153). Since a bond on appeal in condemnation cases is not jurisdictional, an appeal will not be dismissed for insufficiency of the bond without opportunity to amend it or supply a new one.</p> <p>Same (80)—Compensation—Elements—Value for Special Use— Dam Site for Reservoir. In condemnation of a dam site for the purpose of impounding the waters of a lake, it is error to receive evidence and base the value on the storage capacity of the reservoir created, or the necessities of the owner of the storage rights; but its value as a dam site depends on the relative cost of a dam on such site and its adaptability and advantages for such purposes.</p> <p>Evidence (211)—Opinion Evidence — Competency of Experts. The qualification of expert witnesses as to the value of land condemned for a dam site to create a storage reservoir is peculiarly within the discretion of the trial court.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered August 25, 1919, dismissing a writ of certiorari to review proceedings of county commissioners establishing a permanent highway, after a hearing before the court.</p>

, entered September 21, 1919, dismissing, on the pleadings, actions to prohibit the commissioner of public lands from making lieu land selections.

<p>Eminent Domain (107)—Jurisdiction. The court has no jurisdiction to entertain condemnation proceedings to establish a county road if the board of county commissioners had no jurisdiction to direct the proceedings to be instituted.</p> <p>Highways (14)—Establishment—Notice to Landowner—Necessity—Jurisdiction. Under Rem. Code, § 5634, providing that upon due proof “made by affidavit” of the service of notice of proceedings for the establishment of a county road) the board of county commissioners shall proceed to a hearing, the board proceeds without jurisdiction where the only proof of service was the unverified return of the sheriff.</p> <p>Highways (14)—Eminent Domain (116)—Notice to Owner— Proof of Service—Jurisdiction. The board of county commissioners being a tribunal of special and limited jurisdiction, a recital in an order establishing a county road of due service and posting of notices of the hearing, “as appears from the return of the sheriff . . . on file herein,” is not sufficient to establish jurisdiction, especially where the return referred to is admittedly the only proof of service and is not "by affidavit” as required by Rem. Code, § 5634.</p> <p>Same. Statutes of eminent domain being strictly construed as in derogation of private rights, landowners served with notice of a bearing for the establishment of a county road, may insist that the board is without jurisdiction where proof of service was not made “by affidavit” as required by statute.</p>

<p>Adoption—Judgment—Recital oe Facts—Statutes. Under Rem. Code, §§ 1696 and 1698, providing for the adoption of a minor by “any inhabitant of this state,” and for an order of adoption “setting forth the facts,” the failure of the order to set forth the jurisdictional facts does not render the order void, the requirement being merely directory and the superior court being a court of general jurisdiction.</p> <p>Same (4)—Consent oe Pabents—Sufficiency. The written consent of a father to the filing of a petition for the adoption of his infant child is in effect consent to the adoption, where it further recites that he surrenders and gives the child to the adopting parents and relinquishes all right to it and to its services.</p>

Application filed in the supreme court November 4, 1919, for a writ of mandamus to compel the state auditor to issue a warrant to relator in payment for land purchased by the state reclamation board under the land settlement act.

<p>Appeal from a judgment, of the superior court for Cowlitz county, Darch, J., entered June 17, 1919, upon the verdict of a jury rendered in favor, of the plaintiff, in an action on contract.</p>

Application filed in the supreme court January 30, 1920, for a writ of certiorari to review an order of the superior court for Stevens county, Carey, J., entered January 26,1920.

, entered June 21, 1919, denying a motion for leave to withdraw exhibits filed in an action for breach of marriage promise.

<p>Usury (7)—Bills and Notes—Computation—Payment eor Extension. Where a mortgage note bearing eight per cent interest, ■which was in default, was extended for two years in consideration of payment of the interest then due and the addition of two hundred dollars to the principal, such sum should he treated as interest to he paid at the new maturity date, and the note is not usurious when the total payments made and called for did not exceed the original principal and twelve per cent thereon at the new maturity date.</p> <p>Mortgages — Lien — Increase oe Debt — Extension by Husband Without Wipe’s Consent. Where a default in an eight per cent mortgage loan entitled the mortgagee to recover interest at the rate of twelve per cent, an extension of time for two years in consideration of the addition of $200, did not increase the mortgage lien without the consent of the wife of the mortgagor, when the addition of $200 did not exceed the twelve per cent collectible.</p>

, entered April 18, 1919, and June 11, 1919, granting, on the pleadings, an injunction to abate a nuisance; and adjudging defendants in contempt for violating tbe decree of injunction.

<p>Appeal from a judgment of- the superior court for Spokane county, Hurn, J., entered April 12,1919, upon granting a nonsuit, dismissing an action for personal injuries sustained by an employee struck by a piece of steel while driving a wedge.</p>

Cross-appeals from a judgment of the superior court for Franklin county, Truax, J., entered April 19, 1919, upon findings favorable to tbe plaintiff, in an action for conversion, tried to tbe court.

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered June 14, 1919, upon findings in favor of the plaintiff, in an action for rescission, tried to the court.</p>

<p>Assault and Battery-—Civil Liability—Justification—Ejection of Customer—Withdrawal of Invitation. A market keeper’s warning to a customer, who made complaint of fish sold, that her trade was no longer desired and that she could return the fish and receive back her money and not come any more, is withdrawal of the general invitation to enter, except to return the fish, and her removal, using no more force than necessary, when she refused to depart on repeated request, is not actionable as an assault and battery.</p>

Application filed in the supreme court November 5, 1919, for a writ of mandamus to compel the commissioner of public lands to execute to relator a lease for mining purposes.

, entered April 5, 1919, upon findings in favor of the defendants, dismissing certiorari proceedings to review a decision of the civil service commission of Spokane dismissing an employee of the fire department.

<p>Insane Persons (9)—Guardianship — Community Property — Rights of Wife. Upon the mental incompetency of the husband, the wife should be appointed guardian of the community property owned by them; and it is an abuse of discretion to refuse her petition and appoint a stranger, where the property consisted of a ranch yielding a rental income, she had for several years largely borne the burden of its management and was of fair business ability.</p> <p>Same (17)—Sale of Property—Application for Order—Time for Hearing. It is not error to refuse to entertain an application for the sale of an incompetent’s ranch at the time of hearing applicant’s petition for the appointment of a guardian, in view of the statutory requirement (Laws of 1917, p. 703, § 212) of a petition filed by the guardian asking for authority to make such sale.</p>

, entered June 9, 1919, approving the final report of an administrator and distributing an estate, after a hearing before the court.

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

<p>Appeal from a judgment of the superior court for King county, Bonald, J., entered April 19, 19191, upon findings in favor of the plaintiff, in an action of replevin, tried to the court.</p>

, entered April 26, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries received in an automobile collision.

, entered June 7, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages from flooding.

, entered October 6, 1919, in favor of the plaintiffs, upon overruling a demurrer to the complaint and the refusal of defendants to plead further, in an action on contract.

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered June 19,1919, upon a trial and conviction of violating the prohibition law.</p>

, entered October 4,1919, in favor of the defendant, notwithstanding the'verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor in a fall from a building.

<p>Appeal from a judgment of the superior court for Yakima, county, Holden, J., entered April 26, 1919, upon findings in favor of the plaintiffs in an action to quiet title, tried to the court.</p>

, entered September 10, 1919, upon findings in favor of the plaintiff, in an action ' upon contract, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered December 21, 1918, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered February 17, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for conspiracy to defraud.

, entered March 25, 1919, upon findings in favor of the plaintiff, in an action for damages to property sustained through an automobile collision.

<p>Appeal from a judgment of the superior court for King county, Allen, J., entered June 7, 1919, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered February 17, 1919, upon the verdict of a jury, rendered in favor of one defendant, in an action in tort.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered July 25, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>