Volume 112 — Washington Reports

<p>Appeal from orders of the superior court for King county, Gilliam and Tallman, JJ., and John Arthur, judge pro tempore, entered September 23, 1919, November 28, 1919, and August 14, 1919, in divorce proceedings.</p>

, entered September 15, 1919, upon findings in favor of tbe defendants, in an action on promissory notes and to foreclose a chattel mortgage, tried to the court.

Appeal by plaintiff from a judgment of tbe superior court for Yakima county, Holden, J., entered May 21, 1919, quieting plaintiff’s title, but adjudging defendants a lien for the value of improvements placed upon the property, tried to the court.

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered July 26, 1919, in favor of the intervener, adjudging the priority of a chattel mortgage lien, tried to the court upon stipulated facts.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Carey, J., entered July 10, 1919, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered February 7, 1920, in favor of the plaintiff, in an action to cancel a mortgage, tried to the court.</p>

, entered January 22, 1918, in favor of the plaintiff, in an action for an injunction and for damages, tried to the court.

of the superior court for Grant county, Sessions, J., entered June 1, 1920, adjudging a public use • and necessity in condemnation proceedings, after a hearing before the court.

<p>Easements (12)-—-Implied Easements—Cbeation. The essentials of an easement by implication are (1) a separation of title; (2) a permanent use before separation impressed upon one- part of the estate in favor of the other; which (3) shall be necessary to the beneficial enjoyment of such part.</p> <p>Same. The necessity for an easement by implication is such reasonable necessity as renders the easement essential to the convenient or comfortable enjoyment of the property as it existed before severance of title.</p> <p>Easements (12, 13)—Implied Easements—Evidence—Sufficiency. An implied easement in the right to the use of an alley-way by the owner,of a building engaged in the feed business is sufficiently shown by evidence that the common grantor of the adjoining lots erected buildings upon the lots with a view of using the alley-way provided in the rear, that such use was intended to be of permanent character and was notorious and plainly visible, that the alley-way was so used for fourteen years and was necessary to the beneficial enjoyment of the property.</p>

<p>Intoxicating Liquors (30)-—Offenses—Illegal Possession—Intent to Sell—Overt Act. Laws of 1917, § 17b, defining a “bootlegger” as any person who carries about intoxicating liquor with the purpose of unlawful sale of the same, and declaring such crime to be a felony, is not unconstitutional in that it attempts to punish an intent to do an act not coupled with an overt criminal act, since it is not the intent which is punished, but the act of peddling liquor with intent to sell it.</p> <p>Criminal Law (461)—Cruel or Unusual Punishment—Severity of Sentence for Bootlegging. The fact that Laws of 1917, § 17h, declares the offense of bootlegging to be a felony, while other sections of the act merely make it a misdemeanor to sell liquor unlawfully, is no reason for declaring such section unconstitutional on the ground that it provides for cruel and unusual punishment, the legislature apparently deeming such offense more subversive of the morals of the community than that of possession or isolated sales.</p> <p>Same (110-112)—Evidence of Other Offenses—Intent—Admissibility. Upon a prosecution for bootlegging, under Laws of 1917, § 17h, it is proper to admit evidence of separate and distinct unlawful sales in order to prove guilty intent.</p> <p>Intoxicating Liquors (51)-—Bootlegging—Instructions Eliminating Other Offenses. Upon a prosecution for bootlegging, under Laws of 1917, § 17h, it is error to refuse requested instructions that defendant was not being prosecuted for other offenses and could only be convicted of carrying liquor about for the purpose of unlawful sale, where the jury might be misled by evidence of sales which was admitted to show intent, or evidence which might induce the belief that defendant had solicited orders or kept a place for the unlawful sale of liquor.</p> <p>Same (51)-—Bootlegging—Instructions as to Other Offenses. In a prosecution for bootlegging, under Laws of 1917, § 17h, it is error for the court to instruct that it is not necessary for the state to prove matters and things contained in the balance of the section, which the court had just quoted, as it tended to confuse the issue by calling attention to matters upon which there was no evidence, and to a crime with which defendant was not charged.</p> <p>Criminal Law (329)—Trial—Instructions After Submission of Case. Tlie giving of instructions by tbe court on its own motion, after tbe jury bad-retired, and without request from jury .or counsel, is not to be commended, tbougb tbe error may not bave been prejudicial.</p> <p>Intoxicating Liquors (50)—Bootlegging—Evidence—Suffici-ency. Tbe evidence is sufficient to sustain a conviction of bootlegging, under Laws of 1917, § 17b, where it shows a sale of bottled whiskey to tbe prosecuting witness in a hotel room, and tbougb tbe evidence was stronger in tending to show unlawful possession or an unlawful sale, yet there was sufficient from which tbe jury might bave found that defendant was guilty of tbe crime charged, and not of unlawful possession or sale.</p>

<p>Appeal (145)—Peesebvation of Grounds—Exceptions to Findings. Findings made in an equity case, while not necessary, are as conclusive on appeal, when made, as in law actions, unless duly ex^ cepted to.</p> <p>Same (150)—Exceptions to Findings—Sufficiency of General Exception. A general exception to the refusal of the court to make findings requested hy appellant, evidenced in the record hy the words “plaintiff duly excepted thereto”, is insufficient to secure a review of the evidence on appeal.</p> <p>Pleading (6)—Conclusions From Facts Alleged. In an action to recover a balance due upon a construction contract, an allegation in the affirmative answer that plaintiff “forfeited any right to compensation” is hut a conclusion that, in the light of preceding allegations, defendants’ damages caused hy plaintiff’s neglect of the work exceeded the amount of plaintiff’s claim, and was not the pleading of a technical forfeiture.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered November 4, 1919, dismissing an action for personal injuries, in sustaining demurrers to the complaint.</p>

, entered August 12, 1919, upon findings in favor of the plaintiff, in an action for personal injuries sustained- by a pedestrian struck by an automobile, tried to the court.

, entered October 4, 1919, upon findings in favor of the defendants, dismissing an action on contract, tried to the court.

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered October 18,1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Damages (75)—Measure of Damages—Breach of Contract— Loss of Compensation for Services. Where the compensation agreed to be paid an attorney is contingent on the successful result of the suit, the measure of damages for a wrongful discharge from employment is the reasonable value of the services rendered, and not the contingent fee agreed upon.</p> <p>Attorney and Client (44)—Compensation—Breach of Contract —Reasonable Value of Services—Evidence. No recovery can be had by an attorney for a wrongful discharge from employment under a contingent fee contract where no evidence was offered or received to prove the reasonable value of the services rendered up to the time of the discharge; nor is a recovery sustained by proof of expenditures by the attorney during the time of his employment, the evidence only being offered to show what was done under the contract, and not as special damages.</p>

Motion to dismiss an appeal from a judgment of the superior court for Skagit county, Hardin, J., entered September 17, 1919, in an action to contest a will.

, entered April 11, 1919, upon granting a nonsuit, dismissing an action for injuries sustained through defects in a county road.

<p>Moktgages (32)—Validity—Mental Capacity—Evidence—Sufficiency. In an action to foreclose a mortgage, a finding of mental capacity to execute the note and mortgage is sustained where it appears that the maker was competent to manage his affairs, although there may have been some impairment of mentality as compared to times when the maker was at his best.</p> <p>Same (144)—Fobeclosure—Defenses—Want of or Failure of Consideration—Evidence—Sufficiency. In an action to foreclose a mortgage given as security for stock purchased in a trust company, want or failure of consideration are not shown from the fact that the concern was in an unprosperous condition, where no representations were made as to the value of the stock, and the purchaser, who was vice president of the concern, had knowledge of the conditions and believed that care and skill would restore its prosperity, and that the stock would prove a profitable investment.</p>

<p>Taxation (154-1)—Foreclosure Sale—Publication of Notice-Description oe Property. A published notice of tax sale of the east half of a quarter section of land, describing the property as a quarter section and the number of acres to be sold, and referring to the tax number used in the assessor’s tract book as provided by Rem. Code, § 9113, is sufficient, since the description, though incomplete, was supplied by the use of the tax number, which directed attention to the particular property of which he owned one-half the area described.</p> <p>Same (187)—Tax Deed—Execution. A tax deed is not prematurely executed although dated as of the last day for redemption, where it was not acknowledged or delivered until the next day.</p> <p>Same (141)—Vacation oe Sale—Inadequacy oe Price. Mere inadequacy of price is not ground for setting aside a tax sale.</p>

<p>Mortgages (223)—Foreclosure—Rents and Profits—Parties Entitled. A senior mortgagee, bidding in tbe property at its own foreclosure sale for the full amount due, is not entitled to rents and profits prior to the time its right of possession accrued, and has no' interest in rents collected by a receiver appointed in a prior foreclosure suit by a junior mortgagee who was entitled to collect rents and apply the same to taxes, interest and a deficiency .judgment to which the senior mortgagee was not party; and hence cannot have the receiver’s appointment vacated on the ground that it was without notice.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered December 1,1919, upon the verdict of. a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a pedestrian struck by an automobile.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered April 24, 1920, in favor of the defendants, in an action to construe a will, tried to the court.</p>

, entered October 28, 1919, in favor of the defendant, modifying a decree of divorce respecting the custody of a child, after a hearing before the court.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered March 13, 1920, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered January 10, 1920, upon findings in favor of the defendant, in an action for rent, tried to the court.</p>

<p>Bills and Notes (140)—Checks—Indorsement and Delivery—■ Evidence—Sufficiency. In an action on checks issued to and' indorsed by defendant, in which defendant denied the indorsement and alleged that he lost the cheeks and immediately stopped payment, plaintiff’s evidence is sufficient to make a prima facie case, and it is error to grant a nonsuit, where witnesses testified that defendant indorsed the checks, or similar ones, and delivered them to a third person, who gave them to plaintiff in Montana as part payment for liquor purchased, and that such third person upon his return had a dispute with defendant, who then threatened to stop payment on the checks unless he received more money.</p> <p>Sales (127)—Action for Price—Defenses—Goods Sold for Illegal Purpose. The fact that the vendor of liquor knew, or should have known, that it was purchased for the purpose of illegal sale in another state, does not bar an action on checks given for the purchase price, unless it was a part of the contract of sale that it should be so used or sold, or the vendor participated in the transaction otherwise than in the mere making of the sale.</p>

, entered March 16, 1920, upon sustaining a demurrer to the complaint, dismissing proceedings in review of an order of the industrial insurance commission.

<p>Divorce (104)—Custody and Support of Child—Modification of Decree. Where, on appeal by the father from a judgment on petition to modify a divorce decree, which affirmed the original decree awarding custody of a minor daughter to the mother, the supreme court concludes that the mother is not a suitable person to have the custody and control of the daughter, but is unable, under the record, to advise the trial court what disposition should be made of the daughter owing to her hostile attitude toward the father at the time of trial, the judgment will be reversed and remanded for a further hearing to enable the trial court to award the custody to some person other than the mother, preferably to the father, if there has' been a reconciliation between them.</p>

<p>Street Railroads (30)—Collision With Automobile—-Contributory Negligence—Question tor Jury. The contributory negligence of the driver of an auto truck struck by a street car is a question for the jury, where there was evidence that he attempted to cross the tracks at a street intersection after giving the proper signal and noticing an approaching car on .the other track some 125 feet distant from the intersection, that the truck skidded and in attempting to stop the skidding he killed his engine and was struck by the approaching car, and that he had ample time to cross had his truck not skidded and the engine killed, and that the street car was a “one man car” and that the motorman was busy making change with a passenger at or shortly before the collision occurred.</p> <p>Same (33)—Collision at Crossing—Duty oe Motorman and Driver—Instructions. In such a case, it was proper to instruct the jury that the driver, in approaching the crossing, had a right to presume that the motorman was keeping his car under such reasonable control as was commensurate with the situation at such point.</p> <p>Damages (80)—Personal Injuries—Excessive Verdict. A verdict for $2,000 for injuries sustained by the driver of a truck in collision with a street car is not excessive, where he sustained cuts over the ear and eye and the right temple region which tore away part of the temple muscle and required several stitches, and that he had not regained use of the muscles at that point at the time of the trial and still suffered pain and headaches.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered September 12, 1919, upon granting a nonsuit, dismissing an action on an indemnity bond, tried to tbe court and a jury.</p>

<p>Partnership (92)—Receivers—Grounds for Appointment. The court will appoint a receiver for partnership property where an action for dissolution has been commenced, and the evidence shows a lack of harmQny between the parties and that plaintiff, who had possession of the property, had converted portions thereof to his own use and was disposed to dissipate the property, and had advised creditors to bring actions to enforce collection of their claims.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Truax, J., entered November 21, 1919, in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.</p>

<p>Trial (20)—Reception op Evidencie—Opper op Proop. Defendant’s statement as to what he intended to do with a rented house after his tenant moved out is not inconsistent with the fact that the house was rented for a year, and hence an offer to prove the same to corroborate his denial of such statement is properly overruled.</p> <p>Appeal (457)—Review—Harmless Error—Exclusion op Evidence. In an action for breach of promise, in which plaintiff testified that the marriage was to take place after trial of a certain cause in September, it is harmless error to exclude, in denial, evidence that such cause was not then in issue, where it was not shown that plaintiff did not know the cause was not at issue.</p> <p>Appeal (123)—Preservation op Grounds—Admission op Evidence. Error cannot be predicated upon sustaining an objection to a question put to party’s own witness which did not indicate the evidence to be elicited, in the absence of an offer of what was expected to be proved.</p>

<p>Appeal from an order of the superior court for Spokane county, Huneke, J., entered March 13,1920, upon findings in favor of the defendant, after a hearing before the court upon conflicting petitions for the appointment of an administrator.</p>

, entered July 15, 1919, in favor of the defendant, dismissing an action hy property owners to determine rights in and to the use of certain water systems, tried to the court.

<p>Frauds, Statute of (44)—Operation of Statute—Modification of Contract. Upon a vendor’s refusal to deliver logs under a written contract, because of default in tbe payments, an oral agreement to continue deliveries if the purchaser would furnish security, which was done, is not objectionable as an oral agreement to modify the contract within the statute of frauds.</p> <p>Same (44, 60)—Modification of Contract—Instructions. Upon an issue as to an oral modification of a written contract, required by statute to be in writing, it is not error to fail to instruct the jury that the proof must show a written modification or be of the clearest and most satisfactory kind; since it is for the court to first determine whether there is positive, definite and unambiguous testimony of the modification sufficient to sustain the burden of proof, and if so, to submit it to the jury to determine whether it preponderates over evidence to the contrary.</p> <p>Same (44)—Modification of Written Contract. A contract required by statute to be in writing may be modified by an executed oral agreement.</p> <p>Appeal (449)—Review—Harmless Error. In an action for breach of contract to deliver logs, the admission of evidence to show how much the buyer had paid on the purchase price of a mill taken from him on his default under a conditional sale contract, is harmless error, since it was a merely incidental and collateral matter and must have been so regarded by the jury.</p> <p>Sales (77)—Failure to Deliver—Justification for Breach. A seller cannot justify his refusal to deliver any more logs after receiving payment on the contract, on the ground that the buyer lost the mill soon afterwards through default under a conditional sale contract, thus leaving him in no position to perform, since if the seller had resumed delivery of logs, the owners of the mill might not have elected to forfeit the conditional sale contract.</p> <p>Evidence (16, 18)—Judicial Notice. The court will take judicial notice of the prices fixed for timber by the war industry board during the time the Federal government had control of the logging industry in the state, and of the fact that there was a steady and increasing demand for all kinds of milling logs after the Federal government released control.</p> <p>Damages (77)—Measure of Damages—Breach of Contract to Deliver Logs. In an action for breach of contract to deliver logs in certain installments each month, covering a period of eight months after breach of the contract, an instruction fixing the measure of damages as the difference between the contract prices and the market prices at the date of breach of the contract, plus the reasonable cost of transporting other timber to the mill, is not prejudicial to the defendant, where the court could take judicial notice that the price of logs had increased during the period in question since the breach of the contract.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered February 2, 1920, upon findings in favor of the executors of an estate, in proceedings to determine the method of computing an inheritance tax, after a trial to the court upon stipulated facts.</p>

<p>Subrogation (1)—Sureties or Guarantors. Where a co-guarantor of the debts of an insolvent corporation for the year 1914, died and his estate was compelled to pay in full the judgment recovered on the guaranty, the estate or its successor in interest might enforce contribution from the surviving guarantor; and hence is entitled to be subrogated to the rights of the judgment creditor in and to dividends from the bankrupt estate which had by agreement with the surviving guarantor been all applied upon an additional guaranty of the insolvent debts for the subsequent year to which the estate was not a party or liable thereon.</p> <p>Judgment .(70, 109)—Entry—Time fob Entry—Vacation—Irrequlabjties. Where a motion for a new trial was granted unless plaintiff remitted $2,000 from the verdict, the clerk’s entry of judgment on the verdict after denial of motion for judgment notwithstanding the verdict, although not immediately, as required by Rem. Code, § 431, was proper, the remission of $2,000 being thereafter entered as a credit on the execution docket; and it was error to vacate it as being entered contrary to instruction.</p>

<p>New Tbial (5)—Successive Applications—Powers of Court. The court has no jurisdiction, after the denial of a motion for new trial and the proper entry of judgment in the case, to again consider a like motion, based upon the same grounds, and make another order in the case.</p> <p>Appeal (388)—Right to Allege Ebbor—Cross-Appeals. The supreme court is limited to matters complained of by appellant, in the absence of a cross-appeal by respondent.</p>

<p>Appeal from a judgment of the superior court for Grant county, Hill, J., entered October 28, 1919, in favor of the plaintiff, in an action of unlawful detainer, tried to the court.</p>

<p>Appeal from an order of the superior court for Chelan county, Grimshaw, J., entered October 30,1919, denying a petition for the adoption of a minor.</p>

<p>Jury (4) —Right to Jury Trial — Legal or Equitable Action. An action to recover a sum of money, in which the defense was lack of indebtedness because of non-compliance with the contract, is strictly a law action and triable by a jury.</p> <p>Evidence (S3)—Demonstrative Evidence — Models—Discretion of Court. In an action to recover the price of school desks manufactured for the defendant, it is discretionary to refuse to allow defendant to display other desks for comparison, it not being shown that the model desks were of the same quality or character as those delivered.</p> <p>Contracts (144)—Substantial Performance—Manufacture of Chattels for Special Use. The doctrine of substantial performance applies to contracts for the manufacture of chattels according to plans and specifications, for a special use.</p> <p>Same (144)—Substantial Performance—Instructions. In an action for the price of school desks manufactured according to plans and specifications in which the court instructed that plaintiff could recover if he had tried to follow the plans and specifications and the desks delivered were substantially as required by the contract, it is not error to refuse a requested instruction that the plans and specifications were a part of the contract and that plaintiff must show by a preponderance of the evidence that he complied strictly with the contract.</p>

<p>Contracts (141) —Building Contracts — Optional Use oe Fixtures—Withholding Approval by Architect—Extra Cost. The .extra cost of installing fixtures specified in a building contract maybe recovered, where the contract allowed the' contractors to install other fixtures of equal make and made the architects arbitrators, and officers in charge of the building refused to allow the change or permit the architects to approve thereof, which they would have done if allowed to exercise their independent judgment.</p> <p>Same (141). In such a case, the contractor’s right of recovery is not affected by a provision of the contract to the effect that no deviation from the drawings or specifications should be made without the written consent or approval of the officers in charge of the building, since there was no deviation attempted, but only the authorized substitution of one make of goods for another.</p>

, entered December 6, 1919, upon the verdict of a jury rendered in favor of the defendants, in an action for personal injuries.

<p>Taxation (206)—Tax Deed—Action to Set Aside—Limitations. The bar' of the statute of limitations, Rem. Code, § 162, relating to actions to set aside tax deeds or for the recovery of lands sold for delinquent taxes, is not removed by the fact that a tax deed issued on foreclosure by an individual holder of a certificate of delinquency, was in the form used in county foreclosure cases, the recitals as to the. order of the county board authorizing the sale and as to ownership by the county being surplusage only.</p>

<p>Landlord and Tenant (54)—Possession and Use—Disturbance by Landlord—Damages—Evidence—Sufficiency. The evidence is insufficient to show damages to the business of plaintiff, a lessee of a portion of a dock, caused by another lessee of a portion thereof by the maintenance of a guarded gate locked at night and on Sundays across the entrance to the dock, or by the laying of an oil pipe line along the edge of the dock so as to interfere with the loading of boats, or damage to merchandise from steam escaping from a pipe extending through its warehouse, where it appears that plaintiff acquiesced therein and was not inconvenienced and suffered no material damage.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered January 30, 1920, in favor of the defendant, notwithstanding 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 King county, Ronald, J., entered December 31, 1919, upon findings in favor of the defendants, dismissing an action to compel the issuance to plaintiff of certain shares of corporate stock, tried to the court.</p>

<p>Taxation (6)—Special Assessments — Benefits to Property. The levying of special assessments on lands for benefits conferred, as an exercise of the taxing power, does not violate the constitutional requirements as to uniformity of levy or equality of taxation; but they must correspond in theory at least with the benefits conferred.</p> <p>Constitutional Law (43)—Police Power—Destruction of Animal Pests. Laws of 1919, p. 425, § 1, providing for the creation of pest districts by the board of county commissioners on petition of taxpayers of the county, for the purpose of exterminating animals destroying crops, is constitutional as being within the police power of the state.</p> <p>Agriculture — Destruction of 'Animal Pests — Assessments — Classification of Land—Statutes—Construction. Laws of 1919, p. 425, § 7, providing tor the levying of an assessment against lands benefited by the creation of a pest district and that the board of county commissioners “may classify the lands into tillable, grazing, and waste lands and fix the assessment for each class in such amount as shall seem just,” etc., and that the finding by the board of special benefits shall be conclusive, will be construed as requiring classification of the lands as a prerequisite to the adoption of that method of raising the required revenue, instead of the levying of an annual tax as provided in the first paragraph of the section; the word “may,” as used in the section, having a mandatory meaning and equivalent to the word “shall.”</p> <p>Same. The fact that classification of the land would, in certain instances, be a physical impossibility is a question of no concern to the court, since it cannot be presumed that the legislature in providing therefor did a useless thing.</p> <p>Fullerton, J., dissents.</p>

<p>Appeal from a judgment of tbe superior court for Kittitas county, Davidson, J., entered July 18, 1919, upon a trial and conviction of a misdemeanor.</p>

Hum, J., entered December 26, 1919, upon tbe verdict of a jury rendered in favor of tbe plaintiff, in an action for personal injuries

, entered February 17, 1919, upon the verdict of a jury rendered in favor of the defendant, in an action for damages to property destroyed hy fire.

<p>Appeal from a judgment of the superior court for Benton county, Truax, J., entered September 3, 1919, upon findings in favor of the plaintiff, confirming the regularity and legality of certain irrigation district bonds, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered May 19, 1919, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Aliens (2)—Title to Real Estate—Citizenship—Declaration of Intention—Good Faith—Evidence—Sufficiency. An alien’s declaration of intention to become a citizen was not filed in'good faith, as required by Const., art. 2, § 33, so as to prevent the escheat of lands purchased by the alien, where the evidence shows that he claimed an alien’s right to military exemption, and later, on advice of his counsel, after the state had begun an action to escheat the lands held by him, he filed his declaration of intention to become a citizen.</p> <p>Same (3, 5)—Title to Real Estate—Constitutional Pkovisions —Effect of Teeaties. There is no conflict between Const., art. 2, § 33, prohibiting aliens from acquiring lands in this state by purchase, and the treaty of 1850 between the United States and Switzerland which provides that citizens shall be admitted and treated upon a footing of reciprocal equality in the two countries, where such admission and treatment shall not conflict with the constitutional or legal provisions of the contracting parties, and providing that citizens of each country shall have power to dispose of real property situated within the states of the Union or within the Cantons of the Swiss Confederation in which foreigners shall be entitled to hold real estate, or in case they acquire real property by inheritance which on account of being an alien they are not entitled to hold.</p>

<p>Appeal by plaintiff from a judgment of the superior court for King county, Dykman, J., entered November 29, 1919, upon findings favorable to the plaintiff in part, in an action for conversion, tried to the court.</p>

, entered October 11, 1919, upon findings in favor of the plaintiff, in an action for an injunction, tried to the court.

<p>Appeal from a judgment of the superior court for Clallam county, Hall, J., entered December 11, 1919, upon the verdict of a jury renderd in favor of the defendants, in an action on contract.</p>

, entered September 17,1919, upon findings in favor of the plaintiffs, as against one defendant, in a will contest, tried to the court.

<p>Municipal Corporations (380, 384, 390)—Use of Streets—Collision at Crossing—Failure to Sound Horn—Proximate Cause— Question for Jury. In an action by a passenger in an automobile in collision with defendant’s automobile at a street intersection, although the failure of defendant to sound his horn would not have prevented the collision in view of the knowledge of plaintiff’s driver of the approach of defendant’s car, yet it was for the jury to say whether or not such failure of .defendant to sound his horn was the proximate or contributing cause of plaintiff’s injury, where plaintiff did not see or know of the approach of defendant until the instant of the collision; since the court cannot say, as a matter of law, that a timely warning might not have enabled plaintiff to prevent, or at least lessened, her injury.</p> <p>Trial (121)—Misconduct of Jury—Quotient Verdict. A new trial will not be granted for misconduct of the jury in taking a quotient verdict, where the affidavits show that they did determine by that process what the average of the amounts each juror voted to award plaintiff would be, but that the ultimate amount awarded was not made in compliance with any previous agreement entered into between them upon their consideration of the case.</p> <p>Same (118)—Misconduct of Juror,—Communicating With Witness. The conduct of a juror in questioning a witness as to defendant’s nationality, and stating that another member of the jury thought she was German, during a recess of the court, while censurable, is not ground for a new trial in that it showed prejudice against the defendants, since it was probably prompted by no other motive than curiosity.</p> <p>Damages (80)-—Personal Injuries—Excessive Verdict. A verdict for $1,000 for injuries sustained in an automobile collision, though excessive if measured by plaintiff’s money loss incurred for medical attendance and for her loss of wages, will not be held excessive in view of severe injuries sustained, and pain and suffering for several weeks, precluding the court from saying, as a matter of law, that the award is excessive or prompted by prejudice or passion on the part of the jury.</p>

Appeals from a judgment of the superior court for King county, Ronald, J., entered December á, 1919, in an action to foreclose a mechanics’ lien, tried to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered August 1,. 1919, upon sustaining a demurrer to the complaint, dismissing an action on contract.</p>

<p>Municipal Corporations (267-1) —Improvements—Assessments— Benefits—Review. The report of eminent domain commissioners as to benefits to property from the establishment of a street, fortified by the findings and judgment of the trial court in confirmation thereof, will not be disturbed unless the evidence so clearly preponderates as to indicate arbitrariness and manifest oppression.</p> <p>Same (267-3)—Assessments—Review—Arbitrary Action. While ordinarily the question of benefits to property from a public improvement is one of fact, the finding of which by the eminent domain commissioners will not be disturbed except for arbitrariness or manifest abuse, yet when it is obvious from the physical'condition of the property, its locality, environment and character of the improvement, that an assessment should not be laid upon the property for the purpose, and that to do so would amount to an exaction from the property owner which he should not be obliged to make as a special assessment, the courts will interfere to prevent a consummation of the injustice.</p> <p>Same (241)—Assessments—Speculative or Intended Benefits. The eminent domain commissioners in fixing the amount of assessments or determining the question of benefits to property from a local improvement shouid take into consideration the present as well as the future use to which the property is reasonably adaptable. yet the benefit must be a present one and immediately accruing from the improvement in question, and landowners cannot be assessed for speculative or intended benefits which may never be realized.</p> <p>Same (241, 267-2)—Assessments—Benefits—Remote or Speculative Benefits—Evidence—Sufficiency. An assessment on property for benefits from a proposed street is invalid as resting upon a fundamentally wrong basis, where the property, located on an island, is separated from the proposed street by a navigable water-' way subject to the control of the Federal government and by privately owned property abutting thereon, and the street can only be reached by a bridge constructed over the waterway at large expense and then on through the privately owned property, the plans for which are not contemplated at the present time, nor any assurance of such in the reasonably near future.</p>

<p>Street Railroads (19)—Injury to Person on Tracks—Duty to Stop, Look and Listen. One entering upon the track of an interurban railway, the service of which was in the nature of a street car service, is not imperatively bound by the rule of “step, look and listen,” as when crossing or entering upon the tracks of a railway engaged in a through service where stops are made only at fixed stations.</p> <p>Same (30)—Collision With Vehicle—Contributory Negligence —Question por Jury. Whether the driver of a vehicle upon a city street, struck by an interurban railway train, was guilty of contributory negligence was a question for the jury, where it being necessary to turn to the left onto the tracks to pass around an automobile parked at the curb, he looked back when two hundred feet away and saw no train approaching, and later, upon starting to turn his horse, he looked again and saw a train running backwards and almost upon him, too late to avoid being struck, and the operators of the train had notice of his danger in time to have stopped, and no bell was rung or warning given of the ’ approach of the train.</p> <p>Appeal (413)—Review—Verdict. Where the verdict is supported by evidence in kind or quantity such as the nature of the case requires, so that the question is one of mere preponderance of the evidence, and the trial court has refused to set the verdict aside, the supreme court will not interfere, even though it may believe that the verdict is against the weight of the evidence.</p> <p>Appeal (406)—Review—Discretion—New Trial. Whether the trial court does or does not express his views on the weight of the evidence upon denying a motion for a new trial will not be a distinguishing factor on appeal, but the inquiry will be limited to the question whether the verdict is supported by substantial evidence.</p> <p>Street Railroads (30) —Contributory Negligence — Evidence— Question for Jury There was sufficient evidence to make a question for the jury upon an issue as to whether an interurban train could have been stopped in time to avoid striking a vehicle, notwithstanding plaintiff’s negligence, where it appears that the train was moving backwards Slowly and could have been and was stopped within a few feet; that the conductor saw plaintiff and noticed his inattention and he attempted to warn plaintiff by means of a mouth whistle, but had means within his reach for stopping the train almost instantly, and which he used after the accident.</p> <p>Trial (101)-—Instructions-—Requests. The refusal to give requested instructions which could have been properly given is not error, where their substance, so far as material, was embodied in the instructions given by the court.</p> <p>Trial (97)—Instructions—Matters Not Sustained by Evidence. In an action for personal injuries, it is not error for the court to recite, in a statement of the issues, the substance of the allegations of the complaint and the items of damage alleged to have been suffered by reason of the injury, though certain of the items were unsupported by evidence, where no request was made to enumerate the items which no evidence had been offered to sustain.</p> <p>Damages (82)—Personal Injuries—Excessive Verdict. In an action for personal injuries sustained by the driver of a vehicle struck by an interurban train, which plaintiff claimed caused a rupture and partially prevented him from performing his customary labor, a verdict for $1,000 will not be'held excessive, though'it, appears that the jury might well have found a lesser verdict. . .</p>

<p>Boundabies (13)—Location of Lines—Evidence—Sufficiency. Defendants’ acquiescence in a boundary line along the line of an old fence a few feet from a correct survey, is sufficiently shown where it appears that such line corresponds in alignment with the boundary line between adjoining tracts; that a hedge planted by defendants to mark the boundary is in direct line therewith; that a cistern constructed on that tract by defendants would be on their neighbor’s land if their present claims are correct; that a barn erected by them stands flush with such line and is without openings on that side, though it appears to be an appropriate place for openings, and there was no offer to explain why there should be a jog in the general division line in the neighboring tracts.</p>

<p>Sales (105)—Implied Warranty—Sale by Dealer—Liability. A dealer selling an automobile of a particular model, of which he was known not to be the manufacturer, is not liable to the purchaser upon an implied warranty against latent defects which he could not have discovered by ordinary inspection and tests; his duty being fulfilled when he delivered a car of the particular model contracted for.</p> <p>Same (105)—Implied Warranty—Question for Jury. As a general rule, an implied warranty is a presumption of fact and not of law, based upon the presumed intent of the parties, but where only one inference can be drawn from the undisputed facts, the question becomes one of law for the court.</p>

<p>Eminent Domain (8)—By Cities—Powers—Property in Other State—Water Supply—Statutes. Under Rem. Code, § 7612 and § 8005 granting cities power to acquire waterworks within or with-cut the corporate limits, the city of Walla Walla has power to acquire and own property situated in the state of Oregon, upon consent of that state, for the purpose of making extensions and betterments to its waterworks system; and the exercise of such power is not the assumption of extra-territorial jurisdiction over property situated in another state (Main, Mitchell, Mackintosh, and Bridges, JJ., dissent).</p> <p>Same (8, 11)—Powers of City—Property in Other State—Statutes—Validity. Laws of Oregon, ch. 182, p. 256, enacted February 23, 1909, granting to municipal corporations of any state adjoining the state of Oregon power to purchase or condemn lands within the state of Oregon for the purpose of obtaining a water supply, which was followed in all particulars by the enactment by this state on the following day of an act granting reciprocal powers to the cities of the state of Oregon, is not unconstitutional in that it permits the right to condemn property of that state for a public use for the benefit of the people of another state, but will be held a valid exercise of the state’s power of eminent domain to further the public interests of a sister state, in return for reciprocal privileges to the cities of Oregon (Main. Mitchell, Mackintosh, and Bridges, JJ., dissent).</p> <p>Municipal Corporations (525)—Public Utilities—Bonds—Sale at Discount—Statutes. In an action to enjoin the issuance and sale of municipal bonds for a public improvement, the mere allegation in the complaint that the city authorities are threatening to sell “a part only of said bonds at par, and a part thereof at 95 cents on the dollar,” in violation of a provision of the ordinance that “none of said bonds shall be sold or issued ... at less than par value and accrued interest,” does not warrant the court in interfering; since it will be presumed that the city authorities are not contemplating selling any of the bonds at such a discount below par that the total amount of such discount and interest will result in paying more than the maximum rate allowed by the stat-_ utes and ordinance.</p> <p>Same (523)—Bonds—Issuance—Submission to Voters—Ratification of Plan. An election submitting to the voters of a city a proposed improvement and the issuance of bonds therefor, concluding with the- words, “and shall the ordinance be ratified” is not invalid as amounting to the ratification of the ordinance rather than a ratification of the proposition submitted, since the manifest intent expressed by the ordinance and ballot was that the ordinance should he deemed in full force and effect, in so far as it provided for the submission of the proposition.</p> <p>Same (524)—Submission to Voters—Notice of Election—-Publication. Rem. Code, § 7670-22, providing that none hut emergent ordinances shall go into effect before thirty days from the time of final passage, and granting the right of referendum during such period, does not prevent the going into effect, upon its passage and publication, of an ordinance submitting to the voters a proposition of making betterments and extensions to the city’s water works system, thereby, in effect, providing within itself for a referendum; hence the publication ot the election notice less than thirty days following the passage of the ordinance was not premature.</p> <p>Same (124)—Submission to Voters—Plan or System Adopted. An ordinance sufficiently complies with Rem. Code, § 8006, in submitting to the voters the plan or system proposed for.a public improvement, where it specifies the same in such general terms as will fairly inform the voters of the general nature and extent of the proposed improvement.</p> <p>Same (523)—Bonds — Submission to Voters — Separate Purposes. An election submitting to the voters the proposition of making betterments and extensions to the city’s water works system which includes the construction of a large reservoir in addition to the extensions, additions, pipe lines, etc., is not invalid as submitting other than a single proposition to the voters, since the things proposed to he done all relate to the improvement of the system as a whole.</p> <p>Same (486, 519)—Bonds—Limitation of Indebtedness—Constitutional Provisions. The issuance pf bonds in the sum of $500,-000, for the making of extensions and betterments to a city’s water works system does not increase the city’s total indebtedness beyond the ten per cent of the taxable property in such city, as allowed by Const., art. S, § 6, for all city purposes, where the assessed valuation of the taxable property within the city is $9,982,955, and its present indebtedness amounts to only $390,457.</p> <p>Same. Such $500,000 indebtedness is not limited to the five per cent limitation of indebtedness allowed for supplying the city “with water, artificial light and sewers,” but is valid if the total indebtedness of tlie ctty is not increased thereby to more than ten per cent of the taxable propert3r, as provided by Const., art. 8, § 6, for all city purposes.</p> <p>Same. Under Const., art. 8, § 6, allowing a city to become indebted in an amount not exceeding five per cent of the taxable property in such city, for the purpose of supplying the city “with water, artificial light and sewers,” a city may exhaust such debt-incurring power in supplying the city with water alone; since the language enumerating the purposes will be regarded as reading in the disjunctive, as though it were “water, artificial light or sewers.”</p>

<p>Master and Servant (31,155)—Injury to Servant—Negligence— Furnishing Unsafe Appliances. The furnishing of gasoline in a kerosene can which was customarily used for kerosene to start a fire in the galley stove of a motor boat, is negligence rendering the owner liable for injuries sustained by a member of the crew through an explosion resulting from its attempted use under circumstances from which he might assume that the contents was kerosene.</p> <p>Master and Servant (147)—Injury to Servant—Cause of Accident—Evidence—Sufficiency. Upon an issue as to whether defendant negligently filled a kerosene can with gasoline, as part of the equipment of a motor boat, resulting in an explosion, injuring a servant who attempted to start a fire with it, a finding- for plaintiff is sustained where there was evidence that the can was filled from appellant’s stores on shore shortly before starting on the trip; that the explosion was of great violence and clearly showed that the use of a small quantity of gasoline would generate fumes sufficient to cause such an explosion, while a similar use of kerosene would not do so, there being no suggestion that the contents of the can was other than kerosene or gasoline.</p> <p>Seamen (3)—Injury to Seamen—Courts—Concurrent Jurisdiction. The rights of a seaman as to injuries resulting from unseaworthiness ofi the ship are the same under the rules of the common and the maritime law.</p> <p>Admiralty (3, 4)—Maritime Torts—Injury to Seaman—Jurisdiction of Courts—Common Law Remedy. A member of the crew of a motor boat injured by an explosion of gasoline negligently furnished in a kerosene can as part of the equipment of the boat, when attempting to use the contents of the can in the customary manner in starting a fire in the cook stove, may sue in the state courts for damages sustained from such injuries, and is not limited under the maritime law to a recovery of necessary expenses in his maintenance and cure, though his employment and service was maritime in its nature; since the recovery will be sustained on the theory that the injuries were received in consequence of the unseaworthiness of the ship.</p>

<p>Banks and Banking (1)—Insolvency-—-Stockholder’s Super-added Liability—Sale or Transfer of Stock. Under Const.', art. 12, § 4, making stockholders of banks liable for debts that “accrued while they remain such stockholders”, to the extent of the par value of the stock, a sale and transfer of stock in good faith prior to insolvency of the bank does not relieve the stockholder from obligations existing at the time of his ownership of the stock.</p> <p>Same (2)—Extent of Liability—Reissuance of Certificates of Deposit—Creation of New Debt. The superadded liability imposed upon stockholders by Const., art. 12, § 4, is not original but secondary, and in substance the liability of a surety, and a former owner of stock is not liable for an obligation incurred by a bank through the issuance of new certificates of deposit, after taking up and paying interest on the former certificates, long after he had ceased to be a stockholder, since the issuance of the new certificates was the creation of a new obligation.</p> <p>Same (1) — Extent of Liability — Assessment of Stock. A former owner of sixty of the five hundred shares constituting the capital stock of an insolvent bank is liable under the superadded liability imposed by Const., art. 12, § 4, equally and ratably, for 60/500 of the amount of obligations incurred while he was a stockholder of the bank.</p> <p>Interest (25)—Superadded Liability of Stockholder. Where demand was made upon a stockholder of an insolvent bank for payment of his superadded liability, he is liable for interest at the legal rate of six per cent from the time of such demand, upon the amount of his proportional liability found to be due.</p>

<p>Application filed in the supreme court July 26, 1920, for a writ of prohibition to prevent the superior court for King county, Hall, J., from further proceeding in a cause.</p>

<p>Criminax. Law (29-2)—Venue—Constitutional Provisions— Right to Trial by Jury of Vicinage. Under Const., art. 1, § 22, granting to accused persons the right to a speedy, public trial by an impartial jury of the county in which the offense is alleged to have been committed, one accused of crime has a right to be tried in the county in which the offense is alleged to have been committed.</p> <p>Same. Rem. & Bal. Code, § 2293, making the route traversed by a railway car, train or other public conveyance, and the water traversed by any boat, criminal districts, and providing that the jurisdiction of offenses committed on any such railway car, train or boat, or at any station or depot upon such route, shall be in any county through which such car, train or boat may pass during the trip or voyage, or in which the trip or voyage may begin or terminate, is void as in violation of Const., art. 1, § 22, guaranteeing to the accused the right to be tried in the county in which the offense is alleged to have been committed.</p>

'Appeal from an order of the superior court for Pierce county, Fletcher, J., entered March 9, 1920, in favor of the plaintiff, modifying a divorce decree respecting the custody of children, after a hearing before the court.

, entered August 14, 1918, affirming an order of the public service commission compelling the relator to extend to a shipper milling in transit privileges, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered March 24, 1919, upon a trial and conviction of violating an ordinance.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered August 13, 1919, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered February 28, 1919, upon the verdict of a jury rendered in favor of the defendant, in an action in replevin.</p>

<p>Appeal (165)—Notice—Parties—Service—Upon Whom to Be Made. Upon the disallowance of a claim of preference over other creditors of an insolvent corporation, creditors who appeared at the hearing and are adversely affected, are necessary parties to an appeal from the order of disallowance, necessitating the dismissal of the appeal where notice of appeal was served only upon the receiver.</p> <p>Same (218)—Parties Entitled to Notice—Service on Receiver— Sufficiency. Under Rem. Code, § 740, defining a. receiver, he is but an arm of the court, and he represents creditors of the insolvent estate only to the same degree that the court represents them, and service upon him of notice of appeal by one creditor is not service upon other creditors who appeared and were adversely affected by the appeal.</p> <p>Appeal (165, 218)—Necessary Parties—Notice. Where various creditors appeared and filed claims in the matter of the receivership of an insolvent corporation, an appeal cannot be taken from the order on the claims by serving notice on the receiver alone, since the purpose of the statute requiring all persons appearing to be served is to prevent separate appeals.</p>

, entered December 19, 1917, October 9, 1918, and July 10, and August 26, 1919, approving the final account of an administrator, etc., after hearings before the court.

<p>Jury (43)—Qualifications—Challenge fob Cause. Error cannot he predicated upon denying a challenge of a juror for cause ■where the record does not disclose any basis for the challenge and the accused did not exercise all his peremptory challenges.</p> <p>Criminal Law (103)—Evidence—Parts of Same Transaction— Res Gestae. In a prosecution for murder, the blood-stained garments of deceased’s daughter, shot by defendant at the same time, are admissible as part of the same transaction.</p> <p>Same (104)—Evidence—Res Gestae—Statements "of Persons Injured. In a prosecution for murder, exclamations of the deceased immediately after the shooting, as she sank down, are admissible as part of the res gestae.</p> <p>Same (158)—Opinion Evidence-—Examination of Experts— Hypothetical Questions. It is not error to exclude a hypothetical question which was argumentative and not confined to the facts which there was evidence to support.</p> <p>Homicide (111)—Trial — Instructions — Self-Defense. In a prosecution for murder, where there was no evidence on the subject, an instruction as to self-defense is properly refused.</p>

, entered July 1, 1919, in favor of the defendants, upon withdrawing the case from the jury, dismissing an action for fraud.

Application filed in the supreme court July 23, 1920, for a writ of mandamus to compel the superior court for Spokane county, Webster, J., to transfer a cause to another department of the court.

<p>Certiorari to review an order of the superior court for King county, Smith, J., entered February 20, 1920, denying a motion for a change of venue.</p>

Application filed in the supreme court July 22, 1920, to allow and fix the amount of a supersedeas and stay bond pending an appeal from a judgment of the superior court for Kittitas county, Holden, J., entered May 10, 1920.

Appeal by plaintiff from a judgment of the superior court for Whatcom county, Hardin, J., entered June 27, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.

<p>Appeal from a judgment of the superior court for Whatcom county, Pemberton, J., entered September 15, 1919, in favor of the plaintiff, in garnishment proceedings, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wilson, J., entered November 28, 1919, in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

<p>Taxation (91)—Assessment—Reduction of Tax—Equalization —Powers of Board—Statutes. An over-valuation of real estate through, an excessive estimate of standing timber by the county assessor can be corrected by the board of equalization in the first instance without applying to the assessor to correct “manifest error,” under Rem. Code, § 9200.</p> <p>Same (210) —Assessment — Excessiveness — Evidence — Sufficiency! A finding of over-valuation of timber lands is sufficiently sustained by evidence that the county cruise of saw timber thereon exceeded estimates made by several cruisers made for the owners to a much greater extent than the extreme percentage of permissible differences between cruises.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered September 26, 1919, upon granting a nonsuit, dismissing consolidated actions for damages for overflowing lands, tried to the court and a jury.</p>

<p>Habeas Corpus (22)—Commitment for Contempt—-Scope of Inquiry. Upon habeas corpus proceedings to release a prisoner, a commitment by a court of competent jurisdiction adjudging him guilty of contempt in violating an injunction and sentence to imprisonment for a definite term, shows legal cause for the imprisonment which cannot be inquired into.</p> <p>Contempt (28)—Criminal or Civil Proceeding. A commitment for violating an injunction negatives the idea that it was “to enforce a remedy of a party” within the meaning of Rem. Code, § 1075, subd. 2, and is a criminal, rather than a civil proceeding, where the injunction was issued at the instance of the prosecuting attorney for the preservation of order and the protection of the public in general.</p> <p>Habeas Corpus (5, 8-1)—Grounds for Relief—Jurisdiction—-Errors and Irregularities. The validity of a judgment of a court of competent jurisdiction cannot be tested in habeas corpus proceedings, no matter to what extent error may have been committed and even though the judgment was voidable because of want pf jurisdiction to render it, where the court had jurisdiction of the subject-matter and erroneously decided the question of its jurisdiction of the case.</p> <p>Injunction (73)-—Violation—Judgment of Contempt. The superior court has jurisdiction to adjudge one guilty of contempt of court for violating its injunction, and to sentence such person to jail for a specified period.</p>

<p>Appeal from' a judgment of the superior court for Thurston county, Wilson, J., entered October 16, 1919, affirming a decision of the public service commission ordering the refund of excessive freight charges for log shipments exacted by a carrier.</p>

<p>Partnership (36)—Liability—Sales—Delivery. In an action against a partnership for goods ordered by a member of the firm, there was not sufficient evidence of delivery to the partnership to sustain its liability, where the partnership was dissolved before delivery and the goods were delivered to a corporation which succeeded to the business and receipt was taken therefor from the corporation and later a claim was filed against the corporation on its becoming insolvent.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered September 24, 1919, upon findings in favor of the defendant, in an action in replevin, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hum, J., entered November 6, 1919, upon findings in favor of the plaintiffs, in proceedings to determine the amount of an inheritance tax due from the estate of a deceased, after a hearing on the merits before the court.</p>

<p>Fbaud (21, 23)—Measube of Damages—Evidence—-Admissibility. Upon an issue as to fraud in misrepresenting the value of an apartment house sold to defendant, defendant cannot assert error in refusing to allow evidence of the market value of the house at the , time of the sale, where the theory of her defense to an action for the price was an affirmance of the contract and a recoupment in damages for amounts she claimed to have expended in putting the house in as good condition as it was represented to be in.</p> <p>Same (22)—Misbepbesentation—Evidence-—-Sufficiency. A finding against the defense of fraud in misrepresenting the condition of an apartment house sold to the defendant, is sustained by evidence that defendant was experienced in running such houses, voluntarily sought and persisted in making the purchase after visiting the house five times and making all the inspection desired, and that a boiler, claimed by her to be defective, was inspected by her and her janitor, and she requested an inspection by city authorities, but concluded the deal without waiting therefor, and the evidence upon other points was conflicting, and she made no complaint relating to matters she learned of within a few days’ time, until weeks after maturity of the note for the purchase price.</p> <p>Costs (72)—On Appeal—-Appobtionment. Where personal judgment was inadvertently entered against a defendant husband who was not liable, and the matter was not called to the trial court’s attention, though defendant’s counsel were in possession of a copy of the judgment for five days and were present when it was signed and did not raise the point on the motion for a new trial, upon appeal from the entire judgment, costs will not be allowed on reversing the judgment as to such defendant.</p>

<p>Counties (88)—Claims—Presentation and Filing—Statutes— Retroactive Effect. Since limitation laws will not be given a retroactive effect unless that legislative intent is clearly expressed, Laws of 1919, p. 414, requiring claims against a county to be filed within sixty days after the injury, will not bar claims sustained prior to the taking effect of the act, if filed within sixty days thereafter.</p> <p>Same (95)-—Actions—Conditions Precedent—Premature Action —Rejection op Claims. The purpose of the provision in the statute that no action shall be brought upon a claim against a county until the same has been presented and sixty days have elapsed after such presentation is to allow time for an investigation by the county, and is satisfied by a rejection of the claim, after which an action begun within the sixty-day period is not premature.</p>

<p>Appeal from a judgment of tbe superior court for Adams county, Truax, J., entered October 10, 1919, in favor of tbe defendants, dismissing an action on promissory notes, tried to tbe court.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered September 10, 1919, upon sustaining a demurrer to the complaint, dismissing an action in tort.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Jurey, J., entered June 9,1919, upon a trial and conviction of seduction.</p>

<p>Certiorari to review an order of the superior court for Snohomish county, Alston, J., entered June 18, 1920, denying an order of public use and necessity in condemnation proceedings.</p>