Volume 113 — Washington Reports

<p>Appeal from -a judgment of the superior court for Adams county, Truax, J., entered June 21, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages to live stock injured through the negligence of a carrier.</p>

<p>Officers (26-1) — Recaix—Joint ' Petition — Statutes—Construction. Under the provisions of the Constitution, Amendment 8, Art; 1, § 33, and Rem. Code, § 4940-1, authorizing the recall of any public officer, upon the filing of charges against “him”, using the singular number, there can be no joint, recall of several officers of a board upon joint charges which do not permit the voter to express his wishes singly as to any one of the officers being recalled.</p>

, entered December 13, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action on an accident insurance policy.

<p>Appeal from a judgment of the superior court for Skagit county, Brawley, J., entered December 2, 1918, 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 Spokane county, Huneke, J., entered June 8,1920, upon findings-in favor of the plaintiff, in an action for equitable relief, tried to the court.</p>

<p>Certiorari to review a judgment of the superior court for Mason county, Wilson, J., entered September 24, 1920, cancelling a certificate of nomination issued to the relator, after a hearing before the court on the merits.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered October 8, 1920, directing the issuance of a writ of mandamus to compel the relator to register an applicant ¿s a voter, after a hearing to the court.</p>

<p>Appeal from orders of the superior court for Stevens county, Carey, J., entered January 10, 1920, in receivership proceeding’s, after a hearing before the court.</p>

<p>Specific Performance .(51) — Existence of Contract — Weight and Sufficiency of Evidence. A contract to furnish heat for an apartment house will not be specifically enforced where there is a conflict in the evidence as to whether the contract was entered into and its existence is not shown by clear and convincing evidence.</p> <p>Same (11) — Contracts Enfobcible — Duration of — Supervision of Court. A decree of specific performance of a contract to furnish heat for an apartment house will not be entered where it would involve a supervision of the matter for a term of years, only private interests are involved, and it appears that the plaintiff has an adequate remedy at law.</p> <p>Same (1) — Remedy in Damages. The difficulty in proving dam.ages for breach of a contract to furnish heat for an apartment house does not show that there is no adequate remedy at law, so as to authorize an action for specific performance.</p> <p>Damages (66) — Breach of Contract — Measure of Damages. The measure of damages for breach of a contract to furnish heat for an apartment house is the difference between the agreed price and the price plaintiff will be compelled to pay to procure a like service.</p>

<p>Corporations (195) —Actions Against — Venue — “Transacting Business” — Delivery of Goods — Acts of Officers or Agents. A corporation having a mill and principal place of business in one county, is not “transacting business” in another county, within the meaning of the act fixing the venue, from the fact that it ships lumber to such county subject to inspection upon its arrival, nor by visits of its officers for the purpose of cheeking up deliveries, nor by its agreement to pay the cost of credsoting certain of the lumber, which cost was merely deducted from the purchase price.</p>

<p>Taxation (70-1) — Levy and Assessment — Insurance Companies • — Premium Tax — Reserve—“Bonds oe State”. United States Liberty Loan bonds are not “bonds of this state” within the meaning of Rem. Code, § 6059-26, requiring of insurance companies a cash reserve fund in a certain amount in certain specified securities.</p> <p>Same (70-1). Where an insurance company has available cash, or its equivalent, in a larger amount that the cash reserve which it claims was necessary for the proper conduct of its business, it cannot claim that Liberty bonds bought and held by the company are necessarily a part of its required cash reserve governing the rate of taxation of its premium under Rem. Code, § 6059-26.</p> <p>■Same (70-1) — Cash Reserve — “Investment”. While a purchase of Liberty bonds by an insurance company as an asset “available for investment” depends to a certain extent upon the intent of the company, under the accepted definitions of “investment” the purchase must have been made with the idea of obtaining a profit, and if the • contrary appears, the same may have been used as a necessary portion of its cash reserve, under Rem. Code, § 6059-26.</p>

<p>Aliens (3) — Disability—Restrictions on Holding Land — Good ■Faith in Declaration. A declaration of intention to become a citizen of the United States, made in 1912, is shown not to have been in good faith, where no further effort to become a citizen was made for seven years, when, in 1919, the applicant withdrew the application and surrendered his right to become a citizen on claiming exemption from military service, under the selective service law, Barnes Federal Code, § 10,222.</p> <p>Escheat — Recovery of Escheated Property — Good Faith of Alien — Pleading—Sufficiency. In an action to escheat lands held by an alien, a complaint alleging that defendant is not a citizen and has not at any time in good faith declared his intention to become a citizen, sufficiently alleges fraud or bad faith in mating his declaration of intention, as against a general demurrer.</p>

Appeal by plaintiff from a judgment of the superior court, for King county, Jurey, J., entered September 15, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages to property through the breaking of a water main.

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered March 8, 1920, upon the verdict of a jury awarding damages in condemnation proceedings.</p>

<p>Corporations (263) — Foreign Corporations — Actions—Service of Process — Agents. A contract between a foreign corporation manufacturing tractors, and a local dealer does not create an agency within Rem. Code, § 226, subd. 9, authorizing service of process upon any “agent” of a corporation doing business in this state, where, by the contract, the dealer agreed to buy a certain number of tractors, to be resold in a certain territory only, to make deposits on shipments, to use its best efforts in canvassing for sales, to take orders on printed forms of the company, in whose name the tractors were to be shipped, with title vested therein until paid for; and an agency is not created by the fact that the dealer agreed to make -no warranty other than that appearing on the company’s order blank, and td employ an expert and give the company notice if its expert service was required to demonstrate the machines.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered November 4, 1918, dismissing a petition in intervention, in an action for rent and to recover on a promissory note, tried to the court.</p>

<p>Landlord and Tenant (35) - — Term fob Years — Termination— Sale by Lessor. A conditional sale by a lessor disposing of leased property upon receipt of a substantial part of the purchase price, is a “sale” notwithstanding title did not pass, within the clause in the lease authorizing its termination on sixty days’ notice in case of a sale, where the transaction was bona fide; and the lessee, after surrendering the premises, cannot recover damages in the absence of evidence of fraud.</p>

<p>Divorce (7, 36) — Cruelty—Evidence—Sufficiency. A divorce is properly granted upon the ground of cruelty where, during the absence of plaintiff in the East, his wife, who was much younger than he was, instituted actions subjecting his property to her own use, and needlessly sold and destroyed valuable personal property in his home, causing the plaintiff mental suffering.</p> <p>Same .(33) — Jurisdiction—Residence of'Plaintiff — Evidence— Sufficiency. Findings that plaintiff in a divorce action was a Iona fide resident of the state for more than one year just prior to the action are supported by proof that he had resided in the state and worked steadily at one place for seventeen years, that he was out of the state temporarily seven months for his health, and immediately resumed his former employment upon his return.</p> <p>Same (78)- — Disposition of Property — Jurisdiction—Pending Actions — Decree. The court has jurisdiction to grant a divorce, notwithstanding actions between the husband and wife relating to property rights pending on appeal to the supreme court, where defendant’s rights were preserved by reserving to her the right to apply for an equitable division of the property rights after disposal of the cases on appeal.</p>

<p>Master and Servant (95, 96) — Assumption of Risks — Methods of Work — Lifting Heavy Objects — Insufficient Force. In an action for personal injuries sustained by one of a crew of six men, instructed to carry a heavy channel iron weighing from 600 to 1,000 pounds, who wrenched his shoulder in carrying the weight, a nonsuit is properly granted, where it appears that they had previously carried the same iron, had used their own methods, and made no complaint or objection, no act of negligence being shown.</p>

, entered June 21, 1920, dismissing an action for compensation, on an appeal from a decision of the industrial insurance commission.

<p>Replevin (61-63) — Action on Re-Delivery Bond — Defenses. In an action upon a redelivery bond, given in a suit to replevin machinery, the defendant cannot set up a defense which he might have interposed in the replevin suit to the effect that the plaintiff was not the owner or in possession of the machinery, and did not own the note given for the purchase price.</p> <p>Pleading (101) — Amendment—Discretion. Where two answers have been served, it is within the discretion of the court to refuse to permit a second amended answer.</p> <p>Replevin (61-63) — Action on Bond — Defenses. Where interest was allowed as part of the judgment in replevin, the defendant in an action on the replevin bond cannot set up that no interest should be allowed.</p>

<p>Appeal from an order of the superior court for Pierce county, Card, J., entered June 17, 1920, denying a motion to vacate an order appointing a guardian, after a hearing before the court.</p>

<p>Appeal from an order of the superior court for King county, Frater, J., entered September 19, 1919, setting aside a decree of adoption, after a hearing before the court.</p>

, entered October 22, 1919, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, in an action on a fire insurance policy.

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered February 9, 1920, in favor of the plaintiff in probate proceedings, adjudging an estate to be exempt from the payment of an inheritance tax, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered May 1, 1920, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered January 17, 1920, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained by a minor struck by an automobile.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Fletcher, J., entered September 16,1919, in favor of the plaintiff, in an action for specific performance, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheets, J., entered December 27, 1919, in favor of the defendants, dismissing’ an action to quiet title, tried to the court.</p>

<p>Mandamus (1) — Natuke and Gkounds in Genekal. A proceeding in mandamus to question the validity of a tax must be sustained by reference to Const., art. 4, § 4, giving the supreme court original jurisdiction in actions involving the legality of taxes, etc., and not by reference to Rem. Code, § 1014, authorizing mandamus to an inferior tribunal or person to compel the performance of an act which the law especially enjoins as a duty resulting from an office, etc.</p> <p>Same (2) — Existence on Adequacy oe Other Remedy. Mandamus does not lie to compel a county treasurer to accept less than the full tax levied on property, since relator has a plain, speedy and adequate remedy at law in an action to recover the amount illegally imposed, or to enjoin the collection.</p> <p>Same (5, 13) — Acts oe Public Oeeiceks — Unlawful Acts, etc. Mandamus will not lie to compel a county treasurer to accept less than the full tax levied on the property, since the treasurer has no discretion in the collection of the taxes levied, and the writ will not be directed against a ministerial officer whose duty is defined, to compel him to do an act he could not lawfully do without mandate.</p>

<p>Appeals from judgments of tlie superior court for Lewis county, Dykeman, J., entered January 29, 1920, in favor of the plaintiffs, in actions for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered January 31, 1920, upon the verdict of a jury rendered in favor the plaintiff, in an action on contract.</p>

, entered March 12, 1920, in favor of the defendant, dismissing an action for an injunction, after a trial on the merits to the court.

<p>Evidence (172) — Contracts (130) — Rescission—Parol Evidence —Admissibility. Parol evidence is admissible to show that a written contract had been mutually rescinded or cancelled, although the contract provided that one of the parties should not do certain things “without having first obtained consent in writing” of the other party.</p>

<p>Application filed in tlie supreme court September 13,1920, for a writ of prohibition to the superior court for Klickitat county, Brooks, J., to restrain further proceedings in a cause, upon denial of a motion for change of venue.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered April 20, 1920, upon findings in favor of the plaintiff, granting a decree of divorce, tried to the court.</p>

Application filed in the supreme court September 1, 1920, for a writ of prohibition to the superior court for Snohomish county, Bell, J., to restrain further proceedings in a cause, upon the denial of a motion for a change of venue.

<p>Appeal from a judgment of the superior court for King county, Back, J., entered March 13, 1920, foreclosing a mortgage, tried to the court.</p>

<p>Evidence (143) — Parol—Contradicting Written Instruments— Deeds. In the absence of fraud or mistake, parol evidence is inadmissible to show that an unambiguous deed of community property from a husband to his wife did not, as it purports on its face, vest the property in the wife as her separate property.</p> <p>Husband and Wife (18, 64) — Separate Estate of Wife — Community Property — Transfers and Conveyances. Where the wife’s separate property was conveyed to a trustee as security for a debt, the trustee, on payment of the debt, could not, by any form of conveyance to the husband and wife, vest the husband with a community interest in the property.</p>

, entered April 29,1920, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J., entered March 14, 1919, in favor of the plaintiffs, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, McCroskey, J., entered April 5, 1920, dismissing a will contest, upon findings against the petitioner, after a trial on the merits.</p>

<p>Principal and Agent (35-1) — Rights as to Third Persons— Authority of Agent — Receipt of Money for Deposit — Evidence— Sufficiency. The manager of a branch Finnish store is shown to have had authority to receive money on deposit for safe-keeping, where the general manager testified that he was authorized to give a temporary receipt for it and send it to the main office, which issued a permanent receipt in the name of the company, whereupon the money went into its bank account and customers of the store understood that such deposits were part of its business.</p> <p>Bailment (4) — Conversion by Bailee — Commingling Funds— Liability. Where a bailee accepts money for safe-keeping and mixes it with its own money in one banking account and it is lost, the bailee is liable for a conversion, though the money was stolen or embezzled by an employee or agent.</p>

Cross-appeals from a judgment of tlie superior court for King county, Wright, J., entered January 13, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.

<p>Constitutional Law (114) — Equal Protection of Laws — Licenses — Revocation as Prohibition of Lawful Business. The equal protection clause of the Federal constitution and the prohibition of the granting of special privileges, are violated by the provisions in Tacoma ordinance No. 7301 giving the commissioner of public safety, and the city council upon appeal, the arbitrary power, uncontrolled by any prescribed rule of action, to decide who may and may not engage in the business of selling candy and soft drinks, With discretionary power to revoke licenses for disorderly or immoral- conduct or whenever the preservation of.-public morality, -health or good order, in the judgment of the commissioner, renders it necessary.</p>

<p>Application filed in the supreme court October 25, 1920, for a writ of mandate to compel the superior court of King county, Gilliam, J., to vacate a judgment rendered in a cause, and to enter judgment in conformity with a previous opinion of the supreme court.</p>

<p>Bills and Notes (130)- — -Mortgages (14, 23) — Payment—Absolute Deed as Mortgage — Evidence—Sufficiency. The burden of proving that the cancellation of a note was without authority, and of establishing by clear and convincing evidence that an absolute deed was intended as a mortgage to secure the note, and not as payment, is sustained where it appears that the payee’s testimony to that effect was corroborated, that the property conveyed was worthless, that the maker tore his name from the note under protest by the payee, and did not deny that he thereafter stated that his payment of the note would depend upon his mother’s will and must await settlement of her estate.</p> <p>Mortgages (85) — Action on Indebtedness Security — Condition Precedent — Waiver of Security. An action upon a note secured by an absolute deed as a mortgage waives the security, and an offer to reeonvey is not a condition precedent to recovery, where plaintiff took a judgment specifically cancelling the deed.</p>

<p>Appeal (337) — Briefs—Time foe Filing. Respondent’s brief wilt not be struck out for failure to file it within time, where it was served and filed prior to the making of the motion to strike.</p> <p>Same (147, 151%) — Exceptions—Striking Statement fob Failure to Except. Where written exceptions to findings of fact were not filed within five days after notice of the filing of the findings, and the only error assigned is that the evidence does not justify the findings, the statement of facts will be stricken.</p> <p>Divorce (80) — Alimony—Division of Property. In awarding alimony, the amount of monthly payments should not be fixed by reference to the installments of industrial insurance which the wife had been receiving and forfeited upon her marriage to defendant, but the property is to be disposed of in a just and equitable way, having regard to the respective merits and condition of the parties.</p>

<p>Husband and Wife (48, 58, 64) — Community Property — Acquired During Marriage — Presumption — Evidence — Sufficiency. Real estate acquired after marriage is sufficiently shown to have been community property, notwithstanding a quitclaim deed from the husband to the wife, where subsequent to such deed, in a divorce action, it was admitted to be community property, and quitclaims had been executed by each to the other to be used by the survivor on the death of either, and there was no evidence that the property was acquired by the separate funds of the wife.</p> <p>Witnesses (52) — Privileged Communications — -Attorney and Client — Acting fop. Both Parties. Statements to an attorney are not privileged in a subsequent suit between a husband and wife where he advised and was acting as attorney for both parties, as to their rights on making mutual deeds.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered November 22, 1919,. upon findings in favor of the plaintiff, in an action on a promissory note, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, j., entered May 28, 1920, dismissing an action on a fire insurance policy, upon objection to the venue.</p>

, entered January 23, 1920, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through an automobile collision.

<p>Constitutional Law (134, 137) — Due Process — Regulating Minimum Wage — Notice. Rem. Code, § 6571-1 et seq., authorizing the Industrial Welfare Commission to fix the minimum wage for women, without giving notice to employers with opportunity to be heard, is within the police power and is not unconstitutional as depriving a person of life, liberty or property without due process of law.</p> <p>Same (32) — Legislative Power — Delegation to Local Authorities. The legislature may delegate to the Industrial Welfare Commission the power to determine the facts upon which the minimum wage law for women will become effective.</p> <p>Master and Servant (13-1) — Service—Statutory Regulation— Minimum Wage. Under Rem. Code, § 6571-1 et seq., giving authority to the Industrial Welfare Commission to specify the minimum wage and standard conditions of labor for women, the commission may make a weekly wage rate at six days.</p> <p>Same (13-1). An order of the Industrial Welfare Commission fixing the minimum wage for women is not objectionable because it fixes the amount to be deducted for rooms and board, where it was left optional with the employer to furnish room and board at the prices stated.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered February 21,1920, dismissing an action in tort, upon granting a nonsuit.</p>

, entered May 13, 1920, upon findings in favor of the plaintiff, in an action for a writ of mandate to compel the issuance of a license, tried to the court.

<p>Husband and Wife (63, 64) — Community Property — Conveyances Between Husband and Wife — Effect. It is the policy of the community property law, Rem. Code, §§ 5916, 5925, 5927, to give effect to conveyances between husband and wife, and thereunder separate property of either may be changed to community property by a proper agreement.</p>

<p>Vendor and Purchaser (39, 40) — Contracts—Conditions—Provision as to Assignment. Specific performance of a contract for the sale of land will not be granted where the contract was assigned without the written consent of the vendor, contrary to its terms.</p> <p>Same (48) — Rescission by Vendor — Estoppel or Waiver. The right to rescind a contract for the sale of land, assigned without the written consent of the vendor, is not waived by failing to give any reason for refusing to deliver the deed.</p> <p>Husband and Wife (24) — Husband’s Authority to Wife’s Separate Estate. Evidence that a husband, who was a lawyer, prepared a deed and examined a title at his wife’s request, is insufficient to show that he had authority as to a sale of her separate estate that she made without consulting him.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered April 10, 1920, upon a trial and conviction of grand larceny by obtaining money under false pretenses.</p>

<p>Pleading (42) — Answer—Inconsistent Defenses — Election. In an action for a balance due on the purchase price of a ship, an affirmative defense of a defect rendering the ship unseaworthy by reason of which plaintiff agreed to take less, is not inconsistent with a defense that defendant was damaged to the extent of such amount by reason of false representations; and it is error to require an election between them.</p> <p>Appeal (406) — Review—New Trial on Specific Ground. Where a new trial was granted solely upon the ground of a specified error of law, the same may be reviewed on appeal.</p>

<p>Appeal from a judgment of the superior court for King county, Allen, J., entered April 21, 1920, upon the verdict of a jury in favor of the plaintiff, in an action for wrongful death.</p>

<p>Appeal from an order of the superior court for King county, Tallman, J., entered November 15,1919, granting a new trial in a cause, upon a verdict of a jury rendered in favor of the defendants, in an action for personal injuries..</p>

<p>Criminal Law (122) — Evidence—Compelling Accused to Criminate Himsele. Const., art. 1, § 9, providing that no person shall be compelled in a criminal case to give evidence against himself is not violated by permitting physicians to testify as to defendant’s mental condition, after having examined him as to his sanity, there being no objection to the examination.</p> <p>Criminal Law (384-386) — Appeal—Preservation of Grounds. Error cannot be assigned upon evidence as to the sanity of the accused at the time of the trial,- where no objection was made on that ground; nor where defendant pleaded insanity at the time of the trial.</p> <p>Same (326) — Trial—Misconduct of Other Affecting Jurors. Prejudicial error cannot be predicated upon allowing persons to enter the jury room to remove a rug while the jury was in consultation, where no word was said and the jury was assembled to one side.</p>

<p>Appeal from an order of the superior court for King county, Dykeman, J., entered May 11,1920, appointing a receiver, in an action to foreclose a mortgage, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered August 2, 1920, upon findings in favor of the intervener, upon the pleadings, in an action upon a benefit certificate of life insurance.</p>

<p>Navicable Waters (24) — Grants—Title to Meander Line. Under the disclaimer on the part of the state, in Const., art 17, § 2, to all tide, swamp and overflowed lands patented by the United States, a United States patent, prior to statehood, passes title to all the lands above the meander line, although covered by the navigable waters of a slough in a lake.</p> <p>Same (21, 24) — Grants and Rights of Patentees — Ownership and Control — Government Improvement of Navigation. A riparian owner’s title to lands underlying navigable waters within the meander line is a base or qualified fee, subject to the right of the government to improve the navigability of the waters; and it is immaterial that the improvement is undertaken, not directly by Congress, but by a county under permission of Congress, for the benefit of the general public.</p> <p>Eminent Domain (57, 61) — Compensation—Elements and Property Subject — Preventing Access to Navigation. The base or qualified fee of a riparian owner to lands underlying navigable waters within the meander line is taken or damaged, within the meaning of Const., art 1, § 16, entitling him to compensation, where the navigability of the waters is destroyed through the lowering of the waters by the construction of a ship canal, although the improvement created a new artificial navigable course elsewhere.</p>

Application filed in the supreme court July 28, 1920, for a writ of certiorari to review an order of the superior court for King county, Frater, J., entered July 15, 1920, denying to the defendant a motion for stay of proceedings in a cause, to bring in other parties, after a hearing before the court.

<p>Assignments (1) — Requisites—Acceptances. An order on the purchaser of logs to remit the proceeds of the sale to a bank, not payable to “order or bearer” within Rem. Code, § 3516, is not controlled by the negotiable instrument act, and hence need not be accepted in writing, as required of negotiable instruments, by Id., §§ 3517, 3522.</p> <p>Same (15) — Equitable Assignment — Consideration. Before a written order upon a purchaser to pay the proceeds of the sale can be upheld as an equitable assignment of the claim, it must be shown to have been for a valuable consideration.</p>

<p>Appeal from a judgment of the superior court for King county, Davidson, J., entered July 31, 1920, in favor of the plaintiffs, in an action for an injunction, tried to the court.</p>

, entered March 27, 1920, upon findings in favor of the plaintiff, in an action to foreclose a mechanics’ lien, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Holden, J., entered June 19, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

King county, Ronald, J., entered April 23, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.

, entered May 14, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained in a collision with a street car.

<p>Executors and Administrators (72) — Claims—Necessity for Presentation — Waiver. Laws of 1917, pp. 672-674, §§ 107, 109, 113, require that all claims against an estate must be filed with the clerk of the superior court within the six months’ period and cannot be waived by the executor or administrator.</p> <p>Same .(81-1, 84) — Failure to Present — Excuses. Failure to present a claim against an estate is not excused by deceit and misrepresentation, where the alleged misrepresentations were not made until after the time had passed for filing claims.</p>

<p>Witnesses (115-1) — Impeachment — Inconsistent Statements — ■ Interrogation oe Own Witnesses eor Explanation — Surprise. The state may interrogate its own witness in respect to previous statements inconsistent with his testimony in order to refresh his memory and give him an opportunity to explain the inconsistency, especially if misled or surprised.</p> <p>Intoxicating Liquors (30, 50) — Offenses—Illegal Possession and Sale — Evidence—Sufficiency. A conviction of bootlegging is sustained by evidence that the accused sold and delivered whiskey to a witness who first testified that accused directed him to where the liquor was hidden, and by evidence of another witness who purchased and paid accused for liquor which he found at a place to which accused directed him.</p>

Cross-appeals from an order of the superior court for Yakima county, Taylor, J., entered May 24, 1920, upon findings against the petitioner, denying an application to modify a former judgment awarding the custody of a minor child to defendants, and denying to defendants an application for the adoption of the child, after a hearing before the court.

, entered March 29, 1920, in favor of the plaintiffs, in an action to enforce materialmen’s liens against a ship, after a trial to the court on the merits.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered October 1, 1919, upon the verdict of a jury rendered in favor of the defendant, in an action for damages sustained through a collision with a street car.</p>

, entered January 10, 1920, in favor of the defendants, in an action to reduce the assessed valuation and taxes assessed upon lands belonging to plaintiffs, tried to the court on the merits.

, entered April 28, 1920, upon findings against the claimant, dismissing a third party claim to property levied on under execution, after trial on the merits to the court.

<p>Principal and Agent (59) — Contracts by Agent — Ratification— Knowledge of Facts. An agent’s sale of rugs is ratified where the manufacturer had prompt notice of the sale and did not reject the order but gave as an excuse for not shipping that it did not have the goods in stock, and did not refuse to ship them until five months after the sale.</p> <p>Sales (154) — Remedies of Buyer — Breach of Contract-Measure of Damages. The measure of damages for breach of a manufacturer’s contract to sell rugs to a retailer at S., is the difference between the contract price and the price they could have been retailed at S., less the cost of the resale.</p>

<p>Vendor and Purchaser (48, 53, 54) — Forfeiture—Estoppel or Waiver — Necessity of Demand and Notice. ' The vendor may not declare forfeiture of a contract for the sale of land for default in monthly payments, without demand and notice, where the vendee, according to agreement, had improved the property by building a house upon it, and all the monthly payments had been regularly accepted after they were some weeks overdue, especially when, upon insisting upon back payments due, there had been an understanding that immediate payment would not be required.</p>

<p>Contracts (49) — Validity—Public Policy — Perverting Justice. A contract by an attorney prosecuting a case upon a contingent fee', to pay part of his fee for collecting and procuring testimony to be used in the case, dependent upon the result of the suit, is void as against public policy and will not be enforced by the courts.</p>

<p>Appeal from a decree of the superior court for King county, Dvkeman, J., entered May 11, 1920, upon findings in favor of the plaintiff, in an action for divorce and for a division of the property, tried to the court.</p>

<p>Street Railroads (20, 30) — Collisions — Contributory Negligence — Drivers of Vehicles — Question for Jury. The driver of a truck was not guilty of contributory negligence, as a matter of law, in attempting to cross street car tracks at a street intersection, when he looked and saw a street car approaching six hundred feet away, and considered, as did a third person, that he had time to cross, which was error owing to the unlawful speed of the street car; and city ordinances giving the street car company the right of way and making it unlawful to obstruct the track, do not affect the matter.</p>

, entered February 10, 1919, upon findings in favor of the plaintiff, in an action for a divorce and division of the property.

<p>Cross-appeals from a judgment of the superior court for King county, Smith, J., entered July 18,1919, upor findings in favor of the plaintiff, in an action on con-tract, tried to the court.</p>

Application filed in the supreme court November 30, 1920, for a writ of mandate to compel the state auditor to issue a warrant.

<p>Street Railways (13, 28) — Collisions With Vehicles — Negligence — Evidence—Sufficiency. The motorman on a street car is guilty of negligence in operating his car at excessive speed in a busy business district, and, with a clear vision ahead, striking, without warning, an automobile which of necessity was being driven on the tracks ahead at a point where part of the street was temporarily obstructed by building operations.</p> <p>Same — Action for Injuries — Defenses. The fact that the driver of an automobile was under age and had no license, does not preclude recovery for damages to the car he was driving, when negligently struck by a street car, when he was in fact qualified and exercising due care.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered April 29, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through an automobile collision.</p>

<p>Sales (77) — Delivery—Excuses foe Default — 'Wae Embargo— Diligence. The lumber embargo during the late war did not excuse defendant’s failure to comply with the contract for the sale of twenty car loads of clear fir lumber, where no diligence was exercised to secure a release of the lumber from the embargo, while other companies had no difficulty in securing such releases.</p> <p>Sales (29)- — Subject-Matter — Quantity and Ascertainment Thereof. In an action for breach of contract to furnish twenty car loads of lumber, error cannot be assigned ini not finding the capacity of the cars and in fixing upon the minimum capacity to determine the damages and crediting thereon a partial shipment, where the obligation was to load cars to the minimum capacity, and there is no way to determine from the order how many feet of each kind of material would have been contained in ears of minimum capacity to fix accurately the value thereof.</p>

<p>Taxation (225, 229) — Inheritance Tax — Computation — Appraised Value of Real Estate Sold-to Pat Debts at Less Than Appraisement — Statutes—Construction. Where the court has ordered, in the settlement of an estate, the sale of real property to pay debts at less than its appraised value, the inheritance tax, which is by Rem. Code, §§ 9182, 9192, made a lien on the property which will go to the devisees and legatees, is to be computed upon the appraised value of the property not disposed of, and upon the prices received for the lands sold, basing the tax on the amount actually received by the devisee and not on the appraised value.</p>

Cross-appeals from a judgment of the superior court for King county, Ronald, J., entered May 17,1920, dismissing an action for frandnlent representations, upon sustaining a demurrer to the complaint, and overruling defendant’s pleas in abatement and bar.

, entered October 18,1920, upon the verdict of a jury rendered in favor of the plaintiff for damages by reason of fraudulent representations.

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered December 5, 1919, upon findings in favor of the defendant, in an action to restrain a school district from maintaining medical services for pupils, after a trial on the merits to the court.</p>

, entered June 29,1920, dismissing an action for fraud hy a corporate officer, upon granting a nonsuit at a trial before a jury.

, entered March 10, 1920, in favor of the plaintiff, upon overruling á demurrer to the complaint, in an action to recover oil inspection fees paid under protest.

<p>Counties (4)- — Classification—Determination—Powers of Commissioners — Statutes—Construction. Const., art. 11, § 5, empowers the legislature to classify counties hy population for the purpose of regulating the compensation of officers, and the legislature haying provided hy Laws of 1905, p. 42, that counties of the first class, as determined hy the “last preceding Federal census,” shall receive certain salaries, the county commissioners have no power to determine the population and fix the status of a county as one of the first class.</p> <p>Same. Laws of 1919, p. 490, providing that the classification of all counties for the purpose of fixing the salaries of county officers, shall he according to the last preceding Federal census, cannot affect county officers prior to the general election of 1920.</p> <p>Same. County commissioners having determined, without power to do so, that a county has sufficient population to raise it to a county of the first class, the finding will he sustained as fixing its status as a county of the second class, that being the highest class within the authority of the commissioners to fix.</p>

<p>Conteacts (181-1) — Amount on Agbeed Commissions — Instructions. In an action to recover commissions on automobile sales, the jury was properly instructed that plaintiff was entitled to recover the commission fixed by the written contract upon all sales that were accepted, unless he agreed to take a less commission.</p> <p>Same. Where the evidence showed that plaintiff was entitled to $422.40 as commissions, unless he agreed to accept a less sum of one per cent, which was tendered, it is not an invasion of the province of the jury to so instruct, authorizing a verdict either for the one sum or the other as the jury might find.</p>

<p>Bankruptcy (6) — Fraudulent Preferences — Change in Evidence of Indebtedness. A bank is not liable for obtaining an unlawful preference from an insolvent depositor where it merely cancelled the depositor’s indebtedness to it by the cancellation of an equal amount of the deposits, or merely changed the form of the indebtedness from a note to an overdraft.</p> <p>Banks and Banking (22) — Deposits—Application to Debts or Set-Off by Bank. A bank may exercise its right of set-off by applying deposits to the payment of a debt due from the depositor, in the absence of express agreement to the contrary.</p>

<p>Appeal from an order of the superior court for King county, Frater, J., entered May 28, 1920, allowing executor’s fees, upon overruling objections to their final report.</p>

<p>Brokers (13) —Performance of Contract of Employment. Money paid to a broker may be recovered back where, under a written contract, he agrees to procure within three days, a three-year lease for a specified rental, with an option of two additional years, or the return of the sum paid, and the instrument which he procured was for three years only with no provision for the additional years, notwithstanding evidence that the lessors were willing to give the two-year extension but not to embody such provision in the written lease.</p> <p>Appeal (438) — Review—Harmless Error — Demurrer. Defendant cannot assign error in overruling a demurrer to a second cause of action where at the trial no recovery was allowed thereon.</p>

Gr. McLaren, Esq., judge pro tempore, entered November 7, 1919, upon findings in favor of the defendant, in an action for a divorce.

<p>Appeal from a judgment of the superior court for Adams county, Truax, J., entered August 6,1920, upon findings in favor of the plaintiff, in an action to restrain the foreclosure of a chattel mortgage, tried on the merits to the court.</p>

<p>Municipal Corporations (311, 360) — Street Railroads (1-1)— Franchises and Privileges — Abrogation—Public Service Commission. The Public Service Commission Act of 1911 does not abrogate a franchise ordinance passed prior to the Public Service Commission Act of 1911 granting the predecessors in interest of the appellant the right to operate street railway lines upon certain streets in the city in part consideration of which the street railway company was required to carry city policemen and firemen in uniform free while in the discharge of their official duties; the legislature having vested the city with the whole of the state’s police power touching the subject-matter which has not been interfered with by the public service commission law.</p>

<p>Intoxicating- Liquors (29, 50) — Offenses — Transportation— Weight and Sufficiency of Evidence. A conviction of unlawfully transporting intoxicating liquor with intent to sell the same is sustained where appellant’s automobile, with the liquor and appellant’s coat and gloves in it, was found at the time and place of the alleged commission of the offense, notwithstanding evidence to the effect that appellant was, at the time, at a place one hundred and forty miles distant, other witnesses having testified they saw appellant at the time and place of the alleged commission of the offense.</p> <p>New Trial (21-24) — Verdict Contrary to Evidence — Discretion. The trial court did not abuse its discretion in denying appellant’s motion for a new trial, upon the ground of insufficiency of the evidence to sustain a conviction of unlawfully transporting liquor, where witnesses testified they saw appellant at the time and place of the alleged commission of the offense, 'and it was conceded that appellant’s automobile, with the liquor and appellant’s coat and gloves in it, was found at the time and place of the alleged commission of the offense, although many witnesses testified to an alibi.</p>

<p>Indictment and Information (40-95) — Time of Offense — Necessity of Averment — Variance. The time of the act of carnally knowing and abusing a female child of the age of twelve years, under an information charging the crime as having been committed on the 8th day of September, 1918, in the absence of the auestion of an alibi raised by the defense, may be proven to have occurred at any time before the filing of the information and within the limitation period fixed by law.</p> <p>■ Criminal Law (217) — Trial—Remarks and Conduct of Judge. In a criminal action for carnally knowing a female child, it is not a comment on the evidence by the trial judge to advise the jury that evidence elicited from the complaining witness on cross-examination as to her previous relations'with another man should be considered solely for the purpose of determining the weight which should be given her testimony.</p>

<p>Appeal from an order of the superior court for Spokane county, Blake, J., entered June 7, 1920, appointing a receiver in a cause, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Hall J., entered March 7, 1919, upon findings in favor of the plaintiff, in an action for damages sustained in an automobile collision, tried to the court.’</p>

, entered February 2, 1920, allowing an exemption of ten thousand dollars to each of five children in computing an inheritance tax. after a hearing before the court.

<p>Appeal from an order of the superior court for King county, Frater, J.,' entered December 15, 1919, approving the final report of an executor and the decree of distribution, after a hearing before the court.</p>

, entered June 19, 1920, in favor of the defendants, in an action for the rescission of a contract for fraud, tried to the court.