Volume 111 — Washington Reports

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered April 1, 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>

Cross-appeals from a judgment of the superior court for King county, Ronald, J., entered February 28, 1919, upon the verdict of a jury rendered in favor of the plaintiff, as against one defendant, and granting a motion for judgment non obstante as to the other defendant, in an action for personal injuries sustained by a stevedore in loading a vessel.

<p>Appeal from an order of the superior court for Spokane county, Blake, J., entered September 9, 1919, denying an application for a writ of assistance, after a hearing before the court.</p>

, entered March 17, 1919, upon findings in favor of the plaintiffs, in an action for damages for loss of property by fire, tried to the court.

, entered October 10, 1919, granting a writ of mandamus to compel a county treasurer to issue a redemption certificate upon the payment of delinquent taxes and interest.

<p>Corporations (180)—Majority Stockholders—Control of Company. A majority stockholder has a right to control the business policy of the company if he acts in a reasonably competent and efficient manner.</p> <p>Corporations (216, 218)—Receivers—Appointment—Grounds— Criminal Acts. A receiver will not be appointed of a solvent corporation because of dishonest or criminal acts committed by a majority stockholder in control of its business, unless the evil acts are systematic and habitual and a part of its general business, and injunctive relief would not afford a complete remedy.</p> <p>Same (216, 218). A minority stockholder, seeking the appointment of a receiver in such a case, must show that he has exhausted all other remedies and tried to stop the criminal acts.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered January 25, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a fire insurance policy.</p>

Application filed in the supreme court March 5, 1920, for a writ of prohibition to prevent the superior court for King county, Gilliam, J., from issuing a commission to take the depositions of certain witnesses.

Cross-appeals from a judgment of the superior court for King county, Hall, J., entered February 14, 1919, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.

<p>Husband and Wife (80, 84)—Community Property—Debts Contracted by Husband—Ordinary Business—Presumptions—Wrongful Acts. A client’s action against an Attorney and his wife to recover of the community a sum collected hy the attorney and wrongfully withheld, is not for a tort for which the attorney alone would be liable; the presumption being that the ordinary business of the husband was community business and the complaint need not negative the exceptions to the rule.</p> <p>Same (88)—Community Property — Actions — Parties. In a client’s action against an attorney and his wife, seeking a judgment against the community for moneys collected and wrongfully withheld, the wife is a proper party defendant.</p> <p>Set-off and Counterclaim (12)—Subject Matter—Causes of Action on Other and Distinct Transaction. In a client’s action against an attorney to recover money collected and wrongfully withheld, a counterclaim for libel in making complaint against the attorney to the grievance commitee of the bar association does not arise out of the transactions set forth in the complaint, within the requirement of Rem. Code, § 265.</p> <p>Trial (63)—Taking Case Prom Jury—Power of Court. A verdict cannot be directed because the evidence is overwhelming on one side, if there was a substantial dispute in the evidence on a material issue, the limit of power being to grant a new trial.</p> <p>Appeal (406)—Review—Discretion—New Trial. After two jury trials, in which a particular issue was emphasized and twice decided the .same way, it is not an abuse of discretion to refuse a new trial for insufficiency of the evidence, however strongly the verdict appears to be contrary to the evidence.</p> <p>Husband and Wife (94)—Actions—Judgment—Against Community. A judgment against S and against the community composed of S and his wife “and each of them” is not a personal judgment against the wife or a charge against her separate estate.</p>

, entered August 7, 1919, upon findings in favor of the defendants, in consolidated actions for equitable relief, tried to the court.

<p>Mandamus (3, 4)—To Courts—Remedy by Appeal. Mandamus does not lie to compel the superior court to set aside its order sustaining a demurrer to an application for a mandamus of which it had jurisdiction; since there is a remedy by appeal and the mere question of delay does not affect the question of adequacy of the remedy.</p>

, entered December 5, 1919, in favor of the defendant, dismissing an action to enjoin the issuance of bonds for a local improvement, tried to the court.

Application filed in the supreme court January 15, 1920, for a writ of mandamus to compel the commisioner of agriculture to pay certain funds into the state treasury.

<p>Damages (52)—Landlord and Tenant (54)—Mental Suffering —Physical Invasion. There can be no recovery against a landlord for acts causing mental suffering and distress on the part of the tenant who was sick in a hospital, where there was no physical invasion of the person or acts amounting to an assault.</p> <p>Landlord and Tenant (54) —Disturbance of Possession by Landlord—Damages. Where the landlord entered the apartment house, informed lodgers that they were in charge, raised the rent and caused lodgers to vacate, and the tenant was thereafter unable to rent the rooms, there was an invasion of the property for which the landlord would be liable in damages.</p>

<p>Fraud (7, 22)—Action—Damages—Reliance Upon Representations—Evidence—-Sufficiency. The evidence sustains a verdict for damages from misrepresentations in the trade of lands for a second mortgage, secured upon land of little value, where the character of the land and the responsibility of the makers and indorsers of the note was misrepresented and the plaintiff was persuaded not to inspect the land; and the mere fact that plaintiff made inquiry from other sources does not preclude relief, if the information gained failed to disclose the fraud.</p> <p>Same (23-26)—Action for Damares—Measure—Instructions. In an action for fraud in misrepresenting the value of lands traded, it is competent to show the value of the plaintiff’s land, in order to show damages and. to submit that issue, notwithstanding the measure of damages is the difference between the value of the property received by plaintiff and its value if it had been as represented.</p> <p>Trial (103)—Instructions—Requests. It is not error to refuse requested instructions in the language proposed, if the substance was given by the court in its own language.</p>

, entered November 8, 1918, in favor of defendant, in an action by the state bank examiner on behalf of an insolvent bank, after a trial on the merits to the court.

<p>Execution (60, 61)—Rights Passing to Pubchaser—Liens. An execution purchaser of mortgaged premises succeeds to all the rights of the mortgagors and is entitled to pay interest until the date of maturity to avoid a foreclosure of the mortgage.</p> <p>Mortgages (138)—Right to Foreclose—Maturity of Debt—Default Demanding Opportunity to Pay. An execution purchaser, succeeding to all the interests of the mortgagors, is entitled to pay interest until maturity; and a foreclosure prior to maturity is premature, where, upon diligent demand, the mortgagee refused to give the purchaser an opportunity to pay the interest due, since there was then no default.</p>

, entered October 17, 1919, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the issuance of bonds for county road purposes.

Cross-appeals from a judgment of the superior court for Spokane county, Blake, J., entered January 7, 1919, upon findings in favor of the plaintiff, in an action for rescission of a contract of exchange of lands, tried to the court.

<p>Cross-appeals from a judgment of the superior court for Lincoln county, Sessions, J., entered April 23, 1919, in favor of the plaintiff, in an action for an accounting, tried to the court.</p>

Application filed in the supreme court September 2, 1919, for a writ of prohibition to prevent the superior court for King county, Dykeman, J., from proceeding further with a cause.

<p>Certiorari to review an order of the superior court for Snohomish county, Alston, J., entered April 16, 1920, adjudging a public use and necessity in condemnation proceedings, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered May 31, 1919, upon a trial and conviction of forgery.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J., entered December 1, 1919, upon findings in favor of the plaintiffs, in an action to quiet title, tried to the court.</p>

<p>Frauds, Statute of (20, 35)—Broker’s Commission—Description of Lands—Sufficiency. A contract for a broker’s commission on a sale of “40 acres at Forest,” is not sufficiently certain under the statute requiring the same to he in writing, and the contract was not«completed so as to take the same out of the operation of the statute where it was cancelled and the property sold for a less price.</p>

<p>Mortgages (23)—Absolute Deed as Mortgage-—Evidence—Sufficiency. A deed of a half interest in a farm is not shown hy clear, satisfactory and cogent proof to have been intended as a mortgage, where the evidence of one party that the deed was to secure advances to finance the farm was directly contradicted, no evidence of indebtedness was taken, and no rate of interest agreed upon, and there was direct evidence of a sale of the half interest for an agreed price, which was to be put into the farm and was in fact advanced to clear up the grantor’s debts and run the place.</p>

, entered May 27, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for trespass to property.

Application filed in the supreme court December 30, 1919, for a writ of mandamus to compel the state auditor to issue certain salary warrants to the state labor commissioner.

Application filed in the supreme court December 30, 1919, for a writ of mandamus to compel the state auditor to issue certain salary warrants to the state mine inspector.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered February 21, 1920, upon findings in favor of the defendants, dismissing an action for conversion, tried to the court.</p>

<p>Insane Persons (4)—Guardianship—Incompetency—Evidence— Sufficiency. In proceedings to discharge a guardian, findings that the ward was competent to manage her own affairs are not sustained, where it was shown that she had made and still insisted upon an improvident bargain with a brother who was dealing unfairly with her, notwithstanding it appeared that she was not insane and required no supervision over her person.</p> <p>Holcomb, C. J., and Mount, J., dissent.</p>

Application filed in the supreme court May 11, 1920, for a writ of mandamus to compel the superior court for Lewis county, Back, J., to grant a change of judges.

, entered June 2, 1919, upon findings in favor of the defendant, in an action to establish a claim against the estate of a decedent, tried to the court.

<p>Appeal (418)—Review—Findings. Findings upon conflicting evidence will not be disturbed unless against the preponderance of the evidence.</p> <p>Damages (73)—Measure of Damages—Breach op Building Contract. The measure of damages for the owner’s breach in cancelling a building contract is the amount of profits which might reasonably be anticipated, being the difference between the contract price and the cost; and it is error to add anything for the contract- or’s loss of his time during which he sought other work.</p> <p>Principal and Agent (48)—Agent’s Liability'—Owner’s Breach op Contract. Upon the owner’s breach by the cancellation of a building contract, the general contractor who acted merely as agent of the owner in making the contract, is not liable.</p>

Application filed in the supreme court February 4, 1920, for a, writ of mandamus to compel the public service commission to exercise jurisdiction over a certain ferry for the purpose of regulating the service and rates thereof.

, entered January 31, 1919, upon findings of the court, in consolidated actions for cancellation of instruments and upon promissory notes.

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered June 16, 1919, adjudging the validity of certain municipal water bonds, in an action for an injunction.</p>

, entered June 16, 1919, removing an administratrix of an estate and vacating an order awarding property to the widow of the deceased, after a hearing before the court.

Cross-appeals from a judgment of the superior court for Lewis county, Reynolds, J., entered February 19, 1920, upon findings favorable to the defendants, dismissing an action for equitable relief, tried to the court.

, entered December 2, 1919, upon findings in favor of the defendant, affirming the decision of the county school superintendent denying a petition seeking the establishment of a school district, after trial to the court.

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered October 6, 1919, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered November 5, 1919, upon findings in favor of the plaintiff, in an action for a writ of mandamus, tried to the court.

<p>Motion to dismiss an appeal from a judgment of the superior court for Kittitas county, Davidson, J., entered January 29, 1920.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered October 18, 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 through the breaking of a porch railing.</p>

, entered September 17, 1919, distributing a fund paid into court in settlement of an action for wrongful death, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered October 20, 1919, upon findings in favor of the defendants, dismissing an action to contest a will.</p>

, entered May 28, 1919, upon findings in favor of the defendant, dismissing an action to cancel a tax, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered May 9, 1919, in favor of the plaintiff, in an action on a benefit certificate, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered September 19, 1919, upon granting a nonsuit, dismissing an action for malicious prosecution.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered December 13, 1919, upon sustaining a demurrer to the complaint, dismissing an action for money received.</p>

<p>Corporations (73)-—Stockholders—Services—Contract for Employment. A written agreement by a corporation to employ a stockholder while he held the stock, the “stock and position transferable,” fixing no time when the employment was to begin, does not show an intent to pay wages prior to the time fixed by an oral contract of the parties, where the primary purpose of the writing was to aid in the disposal of the stock.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Fletcher, J., entered November 21, 1919, upon granting a nonsuit, dismissing an action in tort.</p>

<p>Actions (31)'—Commencement—Service of Summons Without Filins Complaint—Statutes. Failure to serve a summons within 90 days after filing the complaint, as provided by Rem. Code, § 321, does not lose the cause of action; and service of a summons thereafter is the commencement of a new action dating from the day of service.</p> <p>Process (25)—Service by Publication—Affidavit. Jurisdiction of a non-resident is not acquired by service of a summons by publication, where the affidavit for publication failed to state the existence of any of the grounds specified, as required by Rem. Code, § 228.</p> <p>Judgments (156)—Process (41)—Collateral Attack—Presumptions—Recitals in Judgment. A recital in a default judgment of due service of summons, raises a presumption of jurisdiction notwithstanding a defective affidavit for publication shown by the record; but such presumption is overcome by an allegation and admission that the defendant was at all times a non-resident of the state and that the only service of process was by publication based upon the defective affidavit in the record.</p> <p>Appeal (375)—Review—Matters Not Before Trial Court. A jurisdictional objection to the validity of a judgment may be raised at any time, and will be decided by the supreme court although not pressed to the attention of the trial court.</p>

<p>Election of Remedies (1, 6)—Judgment (95)—Vacation—Con-cubbent Remedies. A motion in the original action to vacate a default judgment for want of jurisdiction, and an independent action in equity seeking the same relief, are concurrent remedies, and the election to exercise one forecloses the use of the other; and upon an adverse judgment, the only remedy is by appeal.</p>

<p>Partnership (6, 87)—Executory Contracts—Action for Accounting. An action for an accounting for partnership profits must fail where there was merely an agreement to form a partnership which was never consumated because of the fault of one party or the other.</p> <p>Specific Performance (11-25)—Contracts Enforceable—To Form Partnership. Specific performance of a contract to form a partnership will not be decreed, except under special circumstances.</p>

, entered December 17, 1919, in favor of the plaintiff, after a trial to the court upon an agreed statement of facts, in an action on contract.

<p>Judgment (142-1, 163)—Vacating—Proceedings—Direct or Collateral Attack. In an action brought against the former owner, to quiet title to property acquired by a commissioner’s deed under a default judgment in a former suit, a cross-complaint attacking the validity of the deed and default judgment on the ground of fraud in resorting to publication of the summons, is a direct and not a collateral attack on the judgment, and therefore sustainable, notwithstanding the cross-complaint was denominated an affirmative defense.</p> <p>Pleading (27)—Theory and Form—Title to Pleading. The title given to a pleading is immaterial, and if the facts set up in an affirmative defense entitled defendant to relief, it will be treated as a cross-complaint.</p> <p>Process (42, 43)—Evidence to Impeach Return—Fraud—Sufficiency of Evidence. There is sufficient evidence of fraud' in making an affidavit for publication of a summons under Rem. Code, § 228, stating that the defendant cannot be found (of which the sheriff’s return is prima facie evidence), where it appears that the defendant was a resident of the city, engaged in business as a painting contractor, with his name in the official city directory and in the city telephone directory for years, and that plaintiffs had made payments to his agent who was also still residing in the city; and in such ease the sheriff’s return of “not found” is insufficient to justify the service, since there must be an effort in good faith to find him.</p>

, entered March 23, 1920, upon findings in favor of the plaintiffs, in an action for damages to property in possession of a bailee, tried to the court.

<p>Appeal from a judgment of the superior court for Adams county, Truax, J., entered April 30, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Fletcher, J., entered January 17, 1920, dismissing an appeal from a conviction in a justice court, for a want of diligence.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered June 9, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for fraud.</p>

, entered July 11, 1919, upon findings in favor of the defendants, in an action on promissory notes, tried to the court.

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered June 16, 1919, upon a trial and conviction of grand larceny.</p>

<p>Appeal (386)—Review—Estoppel to Allege Error—Accepting Reduced Verdict. Plaintiff having accepted a remission in the amount of a verdict to avoid a new trial, cannot, on defendant’s appeal, urge that the judgment he in the amount of the original verdict.</p>

<p>Pleading (30)—Complaint—Duplicity. A complaint in an action on an account stated is not duplicitious from the statement of facts not inconsistent, constituting a cause of action without reference to the account, upon which plaintiff may recover, although the account stated was not proven.</p> <p>Appeal (389)'—Review—Amendments Regarded as Made. In an action tried de novo on appeal, the supreme court must regard a complaint upon an account stated to have been amended to conform to proofs showing plaintiff entitled to recover upon another ground without reference to the account.</p> <p>Corporations (214)—Assignment for Creditors—Authority of Officers After Assignment. After a corporation has become insolvent and made an assignment for the benefit of creditors, its secretary is without any authority to bind it by making a new contract with a creditor agreeing to pay an account and amounting to an account stated.</p> <p>Evidence (95)—Admissions—By Corporate Officer. After a corporation has become insolvent and made an assignment for the benefit of creditors, a letter written by the. secretary of the corporation agreeing to pay a claim is not admissible as independent evidence of a declaration or admission by the corporation that the claim was a just obligation.</p> <p>Account, Action on (3)—Evidence. The statement of an account by a government field officer who was keeping the account by agreement as agent for both parties is prima facie evidence, as between the parties, of the correctness of the account, although he was not sworn as to its correctness.</p> <p>Same. The statement of an account by an auditor acting for both parties, showing items of merchandise not paid for, is not impeached by the evidence of an officer of one of the companies that all items of merchandise taken from the commissary and applied to its private use had been paid for, where information as to the state of the account was derived wholly from the auditor, and it could not be known that the payments were in full.</p> <p>Contracts (11)—Requisites—Implied Contracts—Repudiation of Government Contract. Where the government had a direct interest in an agreement between a construction company and a commissary company for the messing of officers at a military post, and agreed to reimburse the construction company for its expenditures in giving the commissary company free use of facilities, there could be no implied contract on the part of the commissary company to pay for such use, should the government repudiate its promise and charge the cost to the construction company or refuse to allow the cost thereof in its settlement with the construction company.</p> <p>Contract (131, 151)—Operation and Effect—Performance or Breach—Acts Constituting Breach. A promise by a construction company to present in its own name, when its own claims had been adjusted, a claim of its subcontractor, a commissary company, against the government, does not relieve the subcontractor of its obligation to the construction company; nor is. the same breached until its own claims were adjusted.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered April 26, 1919, upon, findings in favor of the plaintiff, in an action for conversion, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Prater, J., entered September 22, 1919, dismissing an action for personal injuries for failure to prosecute.</p>

<p>Appeal by plaintiffs from a judgment of the superior court for King county, Allen, J., entered May 28, 1919, in favor of one of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for rescission.</p>

<p>Certiorari to review a judgment of the superior court for Pierce county, Fletcher, J., entered May 29, 1920, affirming a decision of the county school superintendent in changing the boundaries of a school district, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered November 26, 1919, upon sustaining a demurrer to the complaint, dismissing an action for equitable relief.</p>

<p>Sales (79)—Acceptance—Delay in Rejecting Goods. Where the sale of canvas by sample was made on thirty days credit, it was the buyer’s duty to inspect the same within such period, and asking an extension of time and delay in inspection from November 8 until January 23 implies an acceptance.</p>

<p>Wills (64)—Construction—Misnomer—Evidence to Explain Ambiguity. A will bequeathing $5,000 to each of the following named charitable institutions, naming with two other children’s charities, “Tuberculosis Sanitarium, all located in Seattle or King County,” there being none officially known by that name, presents such an ambiguity or misnomer as to admit of extrinsic evidence that the city of Seattle operated a free tuberculosis hospital north of the city, some miles from testator’s home, popularly known by several designations, one of which was “Tuberculosis Sanitarium,” which was the only strictly charitable institution of its kind in King county, and that, at the time the will was executed there was an extensive publicity campaign for the purpose of securing donations for a children’s building at such institution; and such evidence warrants the finding that the city institution was intended by the will.</p> <p>Charities (3)—“Charitable Institution.” A county tuberculosis sanitarium rendering free service's, is a “charitable” institution, within the meaning of a will, notwithstanding it is supported by funds raised by taxes.</p>

<p>Appeal (416)—Review—Findings. Findings upon conflicting evidence in an equity case will not be disturbed on appeal unless it can be said that the evidence preponderates against them.</p> <p>Navigable Waters (21)—Lands Under Waters — Abandoned Channel—Title to Beds—Avulsion—Before Admission of State. Where a navigable river changed its course by avulsion over public lands, before the admission of the state into the Union, the bed of the new channel remained in the government and was held in trust for the future state; and the trust title in the old channel thereupon ceased and the new state upon entering into the Union acquired no title thereto.</p> <p>Same (21)—Abandoned Channel—Possessory Rights. The possessory rights of persons upon an old river channel, abandoned before the admission of the state, the title to which was in the government, cannot be questioned by the state which never had any title to the land, and the state can pass none by virtue of river improvements enhancing its value.</p>

<p>Bills and Notes (132)—Evidence (168)-—Collatebal Agreement Limiting Liability—Parol Evidence. In the absence of fraud, or mistake, the principal maker of a promissory note cannot set up an independent collateral agreement limiting or exempting him from liability.</p> <p>Bills and Notes (7)-—Consideration—Sufficiency. There is sufficient consideration for a note to a bank, where it was given in settlement of the indebtedness of a corporation in which the maker was interested and the maker was to receive the balance due after collateral securities of the corporation had been sold by the bank.</p> <p>Same (7)—Consideration—Estoppel. After the insolvency of a bank, the makers of a promissory note given as “live paper” to deceive the bank examiner, is estopped to allege want of consideration. .</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered June 21, 1919, in favor of one defendant, adjudging the priority of a claim of title to property sold under a conditional sales contract, in an action to foreclose mechanics’ and materialmen’s liens.</p>

, entered September 23, 1919, upon sustaining a demurrer to the information, dismissing a prosecution for violating the game laws.

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered July 29, 1919, upon findings in favor of the plaintiff, in an action for damages to personal property, tried to the court.</p>

<p>Intoxicating Liquors (42)—Offenses—“Jointist”—Information-—Sufficiency. An information sufficiently charges the offense of being a “jointist,” defined by Laws of 1917, p. 60, § 17h, as opening up or conducting “either as principal or agent,” any place for the unlawful sale of intoxicating liquor, although it does not charge that he acted as principal or agent, since he must have acted in the one capacity or the other.</p>

<p>Intoxicating Liquors (36-40)-—Offenses—Jointist. Laws of 1917, p. 60, § 17h, defining a “jointist” and making it a felony to open up or conduct any place for the unlawful sale of intoxicating liquor, is not unconstitutional as making an “intent” criminal without any overt act, as it is directed against the overt acts of opening, conducting or maintaining, the intent of the accused being merely incidental.</p> <p>Same (52)—Offenses—Punishment—Statutes. The offense of being a “jointist” defined by Laws of 1917, p. 60, § 17h, as a felony, is not unenforcible because it fails to specify any place of imprisonment, in view of Rem. Code, § 2265, providing that any person convicted of a felony for which no punishment is specially prescribed, shall he punishment by imprisonment in the state penitentiary.</p> <p>Same (42)—Information—“Jointist”—Place of Offense. An information charging the offense of being a “jointist,” i.e. opening up or conducting a place for the unlawful sale of intoxicating liquors, under Laws of 1917, p. 60, § 17h, is sufficient without fixing the location other than charging that the offense was committed in the county.</p>

, entered May 14, 1920, in favor of the defendants, dismissing consolidated actions to condemn rights of way for a state road, tried to the court.

<p>Bills and Notes (97)—Defenses—Breach of Contemporaneous Promise. It is no defense to an action on a mortgage note that plaintiff breached its contemporaneous oral agreement to employ defendant as its attorney, where the exact amount of the note was delivered to defendant at the time of the execution of the note.</p> <p>Contracts (4)—Essentials—Mutuality. A promise to employ defendant as plaintiff’s attorney, without any obligation on the attorney’s part to do the worfc, is unenforcible.</p> <p>Pleading (101)—Amendment at Trial—Discretion. It is not an abuse of discretion to refuse to permit a trial amendment after the evidence was in, where the issues had been made up for eight months and several continuances had been granted at appellants’ request.</p> <p>Mortgages (213)—Foreclosure Sale—Confirmation. Confirmation of a sheriff’s mortgage foreclosure sale should not be denied because of the sheriff’s failure to sign the affidavit of publication of notice, where it was corrected by permission at the hearing.</p> <p>Same (213). Inadequacy of price is not ground for refusing to confirm a mortgage foreclosure sale, where a homestead declaration had been filed, it was sold to the highest bidder for less than the judgment, and the mortgagors had a year within which to redeem.</p> <p>Same (213). A mortgage foreclosure sale of four lots en masse, is not ground for refusing to confirm the sale, where the lots were considered as a single tract suitable for a homestead, and the sheriff’s return states a sale in one-parcel was deemed most advantageous.</p> <p>Appeal (232, 236)—Stipeksedeas oe Stay—Right to—Deficiency Judgment. Upon appeal from a deficiency judgment in foreclosure in a certain amount, appellant is not entitled to a stay of execution pending the appeal, in the absence of a stay bond under Rem. Code, § 1722, requiring a bond in double the amount of the judgment appealed from.</p>

, entered September 29, 1919, upon findings in favor of the plaintiff, in an action by a board of trustees to recover salaries paid to officers of a corporation, tried to the court.

, entered October 20, 1919, denying a preference right to payment of claims of materialmen from funds derived from a receiver’s sale, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered June 2, 1919, upon findings in favor of the plaintiffs, in an action for equitable relief, tried to the court.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Ronald, J., entered March 1, 1919, upon findings in favor of the plaintiff, against a garnishee defendant, after a trial to the court.</p>

<p>Guaranty (2)—Nature of Obligation—Enforcement—Waiver of Rights. Where a guarantor of the purchase price of property, in consideration of forbearance and to prevent the running of the statute, in writing “renewed” his original guaranty, it became an original obligation notwithstanding it was called a guaranty.</p> <p>Equity (46)—Laches and Stale Demands'—Following Statute. Laches does not bar a right of action upon the renewal of a written guaranty, which was given in consideration of forbearance to sue and to prevent the statute from running, where action was commenced within the statutory period after the second writing was entered into, and the action was between the original parties.</p> <p>Appeal (469)-—Review—Harmless Error—Judgment or Order;— Tender. In an action upon a guaranty of payment of the purchase price of land sold, defendant cannot complain that plaintiff did not tender a deed of the land conveyed to him, where the judgment recites that, upon its payment, the plaintiff shall convey the property to the defendant, as he is not prejudiced.</p> <p>Damages (66)—Guaranty (9)—Measure of Damages for Breach of Contract. The measure of damages for breach of a contract guaranteeing the payment of the purchase price of land, is the balance due upon the price, plus interest and taxes.</p>

<p>Pleading (119)-—Answer—Amendment—Discretion. It is not an abuse of discretion to allow an answer to be amended at the trial by withdrawing an admission where there was no showing that the plaintiff was misled.</p> <p>Mortgages (20)—Absolute Deed as Mortgage — Existence of Debt to Be Secured. The relation of mortgagor and mortgagee is not created upon the placing in escrow of a deed and notes for money advanced where both deed and notes were to be returned to the maker if paid, and if not paid, the notes were to be returned to him and the deed delivered to the grantee; since it is clear there was no intent to create an enforcible debt secured by mortgage.</p> <p>Frauds, Statute of (9)—Oral Agreement for Land-—Redemption From Mortgage. An oral agreement to permit the grantor in an escrow deed one year in which to redeem the property, relates to real property, within the statute of frauds, and is unenforcible.</p>

<p>Homicide (121)—Trial—Instructions as to Lesser Offense. In a prosecution for murder, an instruction should not be given as to manslaughter, where the evidence excludes the possibility that the killing occurred without design, except that it was done in an attempt to commit robbery which is murder in the first degree.</p> <p>Criminal Law (452)—Homicide (401.)—Appeal—Harmless Error—Instructions Invited. Error cannot be predicated upon submitting the question of murder in the second degree, where accused requested the submission of second degree murder and manslaughter.</p> <p>Criminal Law (135)—Evidence—Self-Serving Declarations. In a prosecution for homicide, defendant’s statements to his wife as to his movements are inadmissible as self-serving declarations, where he did not testify and there was no evidence to impeach him.</p> <p>Same (102)—Evidence—Res Gestae—Statements of Accused. In a prosecution for homicide, the defendant’s statements to his wife after returning home on the day the crime was committed, are too remote in time to be admissible as part of the res gestae.</p> <p>Witnesses (88)—Examination—Redirect Examination—Scope and Extent. Where, in a prosecution for homicide, defendant’s cross-examination of a witness developed that witness had written a name on a slip of paper, which was sealed up and to be opened only in case witness disappeared, accused cannot complain that redirect examination disclosed the name of defendant as the person accused by the witness.</p>

, entered November 24, 1919, upon findings in favor of the plaintiff, in an action for an injunction, tried to the court.

<p>Evidence (48)—Competency—Value of Property. The assessment rolls showing the assessed valuation of property are not competent evidence of the value, as between the owner and third persons.</p> <p>Fraudulent Conveyances (16)—Exempt Property. A conveyance of a homestead, exempt because of less value than $2,0.00, is not fraudulent as to creditors.</p>

<p>Certiorari to review an order of the superior court for Okanogan county, Neal, J., entered July 22, 1919, adjudging a public use and necessity in condemnation proceedings, after a trial to the court.</p>

<p>Banks and Banking (7, 26)—Insolvency—Assets—General or Special Deposits—Preferences. Where both drawer and payee of a check were customers of the bank and payment of mortgage bonds sold by the bank was made by the check, the check was not a trust fund and in any event did not entitle the payee to a preferred claim on insolvency of the bank prior to the presentation of the check, since the check did not augment the funds in the bank.</p> <p>Fraud (4)—Matters of Fact or Opinion. Representations by a bank acting as selling agent of mortgage bonds that they were A-l security, when the security in part was bad, are not admissible as fraudulent representations, being in effect mere expressions of opinion.</p>

<p>Mechanics’ Liens .(40-1)—Notice to Owner—Necessity. Notice to the owner of the delivery of material, as required by Rem. Code, § 1133, is not necessary where the material was furnished to a contractor on the owner’s order, and upon the contractor’s failure to pay, the owner ordered the delivery to continue.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered December 19, 1919, upon granting a nonsuit, dismissing an action for equitable relief, tried to the court.</p>

<p>Mortgages (67)—Absolute Deed as Mortgage—Recording—Record as Notice—Requisites—Statutes. Under the recording statutes, treating deeds and mortgages alike and requiring them to be indexed in the same general index, the record of a deed, absolute in form but intended as a mortgage, is notice to the world when recorded and indexed as its form suggests and the statute requires.</p> <p>Same (102)—-Transfer of Property—Assumption of Mortgage Debt. A mortgagee by deed absolute in form, who gave a warranty deed to a purchaser and assumed a liability for liens not imposed by law or contract, which he was obliged to pay by reason of the warranty, cannot pass the burden to those in possession under claim of title who are in a position to demand that their obligation be limited to the strict terms of the mortgage.</p>

Steele, judge pro tempore, entered September 19, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor struck by an automobile.

Murphy, judge pro tempore, entered August 8, 1919, in favor of the plaintiffs, in consolidated actions for rescission and to foreclose a chattel lien, tried to the court.

, entered August 7, 1919, upon findings in favor of the defendant, in an action on a promissory note, tried to the court.

, entered February 7, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by a motor truck.

<p>Sales (54)—Breach-—Rescission by Buyer—Failure to Deliver Possession. Under a contract for the sale of the personal property and leasehold of a hotel, the contract to be performed within ten days and providing that time was the essence thereof, and that the title to the property should be made good within such time or the agreement to be void, failure of the defendant to deliver possession of the property through failure to acquire title thereto entitles the purchaser to rescind the contract and recover earnest money paid thereon.</p> <p>Sabie (59)-—Rescission by Buyer-—Conditions Precedent—Tender of Purchase Price. Conceding that the delivery of possession and tender of payment were concurrent acts, under a contract for the purchase of a lease and hotel equipment the purchaser may rescind and recover earnest money paid, without first tendering payment and demanding possession, it being known that he had the money in his possession and was able and willing to perform, hut that defendant was unable to deliver because unable to acquire the right of possession within the time limited.</p>

, entered March 4, 1919, upon findings in favor of the defendant, dismissing an action to annul a marriage, tried to the court.

, entered October 18, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages sustained in a collision between a street car and an automobile.

, entered October 4, 1919, upon findings in favor of the defendants, in an action to establish a boundary line, tried to the court.

, entered December 12, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through a collision with an auto truck.

<p>Motion to dismiss an appeal from a judgment of the superior court for Kittitas county, Davidson, J., entered January 29, 1920.</p>

<p>Motion to dismiss an appeal from a judgment of the superior court for Benton county, Truax, J., entered February 7, 1920.</p>

<p>Appeal from an order of the superior court for Pierce county, Card, J., entered February 11, 1920, denying a motion to vacate a judgment, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered March 2, 1920, denying a motion to vacate a judgment.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered July 17, 1919, upon findings in favor of the plaintiff, in an action for divorce, tried to the court.</p>