Volume 114 — Washington Reports

<p>Municipal Corporations (158) — Public Improvements — -Contractor’s Bonds — Persons Secured — Employees of Materialman. One who contracts with a contractor to furnish all the sand and gravel to he used in the construction of a street is not a “subcontractor” but a materialman, though the contract provided that delivery of the sand and gravel should be “on the work as directed and required,” and that rejected material should be replaced; hence employees of the one furnishing the sand and gravel who failed to give the statutory notice under Rem. Code, 8 1159-1, cannot recover on the contractor’s bond.</p> <p>Same (158, 159-2) — Persons Secured — Contractor’s Bond — “Supplies” — -Notice—Necessity. Employees of one furnishing gravel to a contractor for a public improvement, who fail to give the statutory notice required under Rem. Code, 81159-1, of persons furnishing material or “supplies” cannot recover for their services on the contractor’s bond.</p>

, entered October 21, 1919, upon findings in favor of the plaintiff, in an action upon an open account, tried to the court.

<p>Witnesses (126-1) — Impeachment — Irrelevant or Collateral Matters. In a prosecution for arson in the burning of a building by accused for the purpose of collecting the insurance, in which witnesses testified to a conversation in which accused' proposed to burn the building, stating that he had had a fire at S. and'had collected the insurance, after some difficulty, it is not error, after allowing accused to deny the conversation, to refuse to allow accused to explain the circumstances concerning the other fire; since that involved an issue foreign to the case.</p> <p>Criminal Law (112) — Evidence—Other. Offenses — Proof and Effect. In a prosecution for arson, an objection to a paper on the ground that it tended to show a forgery by the accused, is not well taken where the evidence tended to show without dispute that the paper was signed by a third person and the only question in issue was whether such third person was authorized to sign another’s name to the paper.</p> <p>Criminal Law (358) — New Trial — Newly Discovered Evidence— Accumulative Evidence. A new trial will not be granted on the ground of newly discovered evidence which is merely cumulative, nor where the only purpose is to meet or discredit evidence produced at the trial.</p> <p>Same (356) — New Trial — Diligence. A new trial will not be granted for the purpose of introducing evidence which plaintiff had ample opportunity to produce at the trial.</p> <p>Same (355) — New Trial — Newly Discovered Evidence in' General — Arson. In a prosecution of the president of a company for arson, evidence with reference to the financial condition of the company at all times known to the accused, cannot be newly discovered evidence.</p>

, entered April 29,1920, upon findings in favor of defendant, in an action for money paid, tried on the merits to the court.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered March 20, 1920, upon, findings in favor of plaintiff, in an action in tort, tried to the court.</p>

, entered December 1, 1919, upon findings in favor of defendants, in an action for damages sustained in an automobile collision, tried to the court.

, entered'April 28, 1920, upon findings in favor of the plaintiff, in an action for specific performance and to quiet title, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered April 14,1920, reversing the judgment of a justice of the peace, upon review by writ of certiorari.</p>

<p>Executors and Administrators (3, 156) — Sales — Powers and Jurisdiction of Court Under Nonintervention Will. The prohate court has authority to order a sale of real estate upon public notice, upon application of the executor of a nonintervention will, in view of Laws of 1917, p. 684, § 146, providing that an executor of a nonintervention will 'may sell property without order of court if authority is given in the will, and p. 706, § 219, declaring the intention to authorize the courts in probate to settle estates, and § 220, providing that, in exercising the jurisdiction and powers granted, the court may give such notice as may be considered proper or necessary.</p> <p>Wills (75) — Construction—Estates in Trust — Power of Distribution — Limitation as to Time — Effect. Failure of executors to sell property within the five years fixed in a will will not terminate the trust, where the property ivas devised in trust for named devisees, and the necessity for making the sale continues.</p> <p>Executors and Administrators (120, 133) — Sales Under Order of Court — Notice—Sufficiency—Vacation.of Sale. An executor’s sale of real estate at prices below the present appraised value will be set aside at the instance of interested parties, where notices of sale contained imperfect descriptions of the property and no title of the cause, and some of the notices were unsigned and did not mention the date or place of sale and were not published more than ten days; in view of Laws of 1917, p. 678, §127, prescribing the requisites for the notice and publication for three successive weeks.</p>

, entered November 3, 1919, setting over the homestead allowance to the surviving spouse of the decedent, after a hearing before the court.

<p>Cross-appeals from a judgment of the superior court for King county, Smith, J., entered April 19, 1920, upon findings in favor of the plaintiff, in an action for unlawful detainer.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered May 21, 1920, upon the pleadings in favor of the defendants, in an action of interpleader.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered November 4, 1919, upon findings in favor of plaintiff, in an action on contract, tried to the court.</p>

<p>Husband and Wife (84) — Community Property- — -Debts Incurred by Husband — Torts—Official Delinquencies. The tort of a county cleric in obtaining an unlawful preference by withdrawing from an insolvent bank a deposit of public funds, is not a community debt, and the community cannot be held therefor.</p> <p>Interest (7) — Demands Not Liquidated. A. demand against a county clerk for wrongfully withdrawing a deposit from an insolvent bank, draws interest from the date of withdrawal, where the sum wrongfully obtained was a specific amount which may be lessened by facts then existing and capable of ascertainment.</p>

<p>Mines and Minebals (16, 17) — 'Conveyances—Lease. A talc mining lease will he forfeited in accordance with the stipulation of the parties, requiring continuous operation, where the lessee did not attempt to operate the mill in any commercial sense, hut only technically to comply with the requirements of the lease.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered March 10,1920, dismissing an action for fraud, after a trial on the merits to the court.</p>

, entered August 18, 1920, affirming the order of the public service commission as to rates to be charged by an electric company, after a hearing on the merits.

, entered January 21, 1920, after a trial on the merits to the court, dismissing the complaint and quieting defendants’ title in an action for partition.

<p>Criminal Law (347) — Motion foe New Trial — Misconduct Af-. iecting Jurors. Affidavits of a juror stating facts constituting misconduct, but not attempting to state what effect it had on the jury, do not come within the rule that a juror will not be heard to impeach his own verdict.</p> <p>Same. Misconduct of a juror will not be considered as ground for a new trial where the affidavit of the juror denies the alleged misconduct.</p> <p>Same. A new trial in a prosecution for stealing cattle must be granted, where one of the jurors admitted to the making of statements in the jury room as to his loss of cattle, traced to the vicinity of the defendant’s residence, which were entirely outside of the evidence and might be extremely prejudicial.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J., entered September 20. 1920, in favor of the plaintiff, in an action for an injunction, after a trial to the court on the merits.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered July 15, 1919, upon a trial and conviction of burglary.</p>

, entered January 28, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for fraud and breach of contract.

<p>Public Lands (96) — Disposal by State of Tide and Shore Lands Preferential Rights — Abutting Owner. The owner of a ferry is not entitled to any preference right to shore lands in a navigable stream by reason of improvements of his predecessors in the construction of a wharf thereon, where it had served no useful purpose for over twenty years and had disappeared more than ten years ago.</p> <p>Same (98) — Preferential Rights — Improver. The owner of a ferry is not entitled to any preference right to purchase shore lands in a navigable stream by, reason of having maintained since 1908 or 1909, by permission of the city, a temporary float within the limits of a street extended into the water.</p> <p>Public Lands (119) — Navigable Waters (32) — Shores and Banks — Right of Owners — Injunction. The abutting owner, entitled to a preference right to purchase shore lands on a navigable stream, is entitled to an injunction against a stranger to prevent threatened acts of trespass by way of permanent obstructions cutting off his access to the stream.</p>

, entered April 5, 1920, upon findings in favor of plaintiff, awarding damages for the condemnation of property, after trial on the merits to the court.

<p>Sales (12, 126, 129) — Validity—Contract by Correspondence— Delivery — Action por Damages — Conditions Precedent. Upon a sale of 100 tons of Ray, delivery to commence about August 15, without specifying time for completion, the buyer’s letter, after receiving the first shipment, to the effect that just at present it was not in need of further shipments, is not a repudiation of the order; and the seller must make a tender of the balance before bringing suit for breach of contract.</p>

<p>Appeal from, the judgment of the superior court for Snohomish county, Alston, J., entered March 30, 1920, upon a trial and conviction of the unlawful possession of intoxicating liquor.</p>

<p>Telegraphs and Telephones (14)- — Damages (19) — Mental Suffering. Compensatory damages for mental anguish cannot he recovered by a telephone subscriber who changed his residence and was required to take a new number, and was humiliated and annoyed by unintentional negligence on the part of operators in reporting his old number as “temporarily disconnected,” where there was no evidence of any physical or financial injury or loss.</p>

, entered May 22, 1920, upon findings in favor of plaintiff, in an action to recover money paid under protest for special assessments.

■ Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered January 28, 1920, upon findings in favor of plaintiff, in consolidated garnishment proceedings involving the title to promissory notes.

superior court for Pierce county, Chapman, J., entered February 5, 1920, dismissing an action to recover a special deposit, after a trial on the merits to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered May 10, 1920, upon the verdict of a jury rendered in favor of the defendant, in an action on contract.</p>

<p>Appeal from a judgment of tlie superior court for Snohomish, county, Alston, J., entered May 26, 1920, upon findings in favor of the defendants, in an action to recover the possession of leased premises, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered December 8, 1919, upon a trial and conviction of rape.</p>

Appeal by intervener from a judgment of the superior court for Spokane county, Blake, J., entered May 6, .1920, upon findings in favor of the plaintiff, after striking the complaint in intervention, in an action on a foreign judgment, tried to the court.

<p>Contracts (36-1) — Corporations (56) — Requisites and Validity —Validity of Assent — Duress—Rescission oe Sale oe Corporate Stock. A transfer of shares of stock in a corporation will not be cancelled for duress and coercion, upon plaintiff’s evidence that it. was made under threats of prosecution for making false entries and appropriating money and merchandise to his own use, where he was not restrained of his liberty, and came and went at his will for several days and of his own volition sought to settle the matter.</p>

<p>Liens (1) — Equitable Liens — Requisites. An equitable lien not created by express terms, must arise by necessary implication from the terms of the agreement construed with reference to the attendant circumstances: and none was intended, where mortgages had been foreclosed and in consideration of deeding the property hack to the mortgagor and accepting new mortgages, the mortgagor agreed to have deeded to himself certain described property then held in trust for him by relatives, which he agreed to hold while indebted on the mortgages, further agreeing to apply on his indebtedness any proceeds that he might realize on the sale of the property.</p>

<p>Agriculture (5) — Liens — Right to. A farm laborer cannot claim a lien for caring for a crop of alfalfa by the customary seasonable conveyance of water from irrigation flumes, under Rem. Code, § 1131, giving a lien to one who “clears, grades, fills or otherwise improves” property at the request of the owner.</p> <p>Master and Servant .(2) — The Relation — Evidence of Employment. The owner of land is not liable for the wages of a farm laborer employed by an independent contractor who was to. reduce wild land to a state of cultivation and grow one crop thereon.</p>

<p>Laeceny (28) —Evidence—Weight and Sueeiciency — Identity. In a prosecution for larceny, the identification of decomposed heads of young cattle raises a question for the jury, where the cattle were pets with peculiar shaped heads and horns with marks thereon familiar to two witnesses recognizing them.</p> <p>Criminal Law (356) — New Tbial — Newly Discovered Evidence —Diligence. A new trial on account of newly discovered evidence should not be granted where the accused knew of the evidence before the trial and simply failed to find the witness and did not have any subpoena issued for him, since there was lack of diligence.</p>

<p>Application filed in the supreme court September 29, 1920, for a permanent injunction to restrain a sheriff’s execution sale.</p>

, entered September 2, 1919, in favor of the plaintiff in garnishment proceedings, after a trial to the court on the merits.

<p>Cross-appeals from a judgment of tlie superior court for King county, Ralston, J., entered April 23, 1920, upon granting defendant’s motion for new trial after the verdict of a jury in favor of the plaintiff, in an action for damages sustained in a collision between a street car and an auto truck.</p>

<p>Cross-appeals from a judgment of the superior court for King county, French, J., entered March 8, 1920, upon findings in favor of the plaintiff, in an action for equitable relief, tried to .the court.</p>

Application filed in the supreme court December 1, 1920, for a writ of habeas corpus to obtain petitioner’s release from a commitment in contempt proceedings.

, entered December 24, 1919, upon the verdict rendered in favor of the plaintiff by direction of the court, in an action on a note, after trial on the merits.

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered April 7,1920, upon the verdict of a jury, rendered in favor of the plaintiff, in an action upon a contract.</p>

<p>Municipal Cobpobations (267-3) — Public Impeovements— Abbiteaby and Excessive Assessment. It is manifest that straightening out a jog in the street making it more valuable for general use and increasing public traffic over it, affects all property similarly situated, and consequently an assessment of property from which land was taken at seven times the amount assessed against similar tracts, not condemned, is void as arbitrary and made upon a fundamentally wrong basis.</p> <p>Same (267-3). Such an assessment against private owners could not he justified by the fact that a portion of the street in front of their lots was in private ownership, which, if asserted, would cut off their access to the street.</p>

, entered May 29,1920, upon an order in an action for divorce, granting defendant’s application for the modification of a notice of Us pendens.

<p>Appeal from a judgment of tbe superior court for Spokane county, Blake, J., entered December 2, 1919, upon the verdict of a jury, in an action to rescind a contract for fraud.</p>

<p>Indictment and Information (52) — Kidnaping—Elements of Offense — Designation of Parent or Custodian. An information under Rem. Code, § 2410, charging the kidnaping of a child of tender years, naming it, hy taking and detaining her with intent to conceal her from her parents or other persons having lawful care and control of her, is not defective in failing to name the persons from whom she was taken; since it is the identity of the child and not of the custodians that is material and has to do with the elements of the offense.</p>

, entered March 26, 1920, upon the verdict of a jury in favor of the plaintiff, in an action for breach of contract of sale.

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered May 17, 1920, upon findings in favor of the plaintiff, reversing upon certiorari an order of the public service commission.</p>

, entered November 7, 1919, dismissing an action for personal injuries, notwithstanding the verdict of a jury rendered in favor of the plaintiff.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered December 2, 1919, upon findings in favor' of defendants, dismissing an action on contract, tried to tbe court.</p>

<p>Appeal from a judgment of tlie superior court for King county, Tallman, J., entered April 24, 1920, upon findings in favor of plaintiffs, in an action for unlawful detainer, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered April 19, 1919, upon a trial to the court and jury, granting a nonsuit, in an action for personal injuries.</p>

Application filed in the supreme court November 18,1920, for a writ of mandate, to compel the superior court of Lewis comity, Reynolds, J., to grant a change of judges.

<p>Seamen (1) — Who Abe Seamen. The fishermen and crew of a fishing boat signing shipping articles come within the designation of seamen and their rights as to wages in case of salvage work are governed by those of seamen.</p> <p>Seamen — Right to Claim Salvage. Seamen may not claim compensation for salvage upon abandonment of the ship unless the abandonment was by order of the master.</p> <p>Seamen (2) — Shitting Abticles — Comtensation on Salvage. Under shipping articles providing that the seamen would do such work as was necessary to protect the ship if endangered, without extra compensation, and that no salvage should be earned or paid except after shipwreck or abandonment, seamen are not entitled to salvage for services, where the ship went aground and the seamen, after hazardous work in saving the vessel and cargo, were paid their wages and discharged and the vessel was finally floated and taken to port, never having been abandoned.</p>

<p>Indictment and Information (77) — Duplicity—Criminal Syndicalism — Offenses. Laws of 1919, p. 518, § 1, defines criminal syndicalism as a single offense of effecting or resisting any industrial, economic, social or political change in any of the different ways or means specified, which are not repugnant to one another, and does not define separate and distinct offenses arising out of disconnected transactions; hence an information substantially in the language of two subdivisions of the act charges but one offense and is not duplicitous.</p> <p>Indictment and Information (34, 60) — Insurrection—Certainty. An information charging criminal syndicalism substantially in. the language of the statute, is not indefinite and uncertain, where it alleges the time and place, the connection of the accused with the Industrial Workers of the World and the purpose of that organization.</p> <p>Constitutional Law (59) — Civil Rights — Freedom of Speech. The criminal syndicalism statute, Laws 1919, p. 518, § 1, intended to prevent the teaching of crime, sedition, violence or intimidation as a means of overcoming the present social order is not unconstitutional as abridging the freedom of speech.</p> <p>Treason — Offenses-—Powers op State. The syndicalism statute, Laws 1919, p. 518, § 1, against effecting or resisting any industrial, economic, social or political change in any of the ways specified, is not an attempt to punish constructive treason beyond the power of the state, or in violation of the Federal constitution, art. 3, § 3, providing that treason against the United States shall only consist of levying war against them, etc.; since the state may pass laws to aid or assist the national government and is one of its component parts.</p> <p>Constitutional Law .(102) — Privileges and Immunities — Class Legislation. There is nothing on the face of the criminal syndicalism statute, Laws 1919, p. 518, § 1, showing an intention to restrict the discussion of economic and industrial questions among labor organizations; but the regulations bear with equal weight upon all in a like situation, and the act is not objectionable as class legislation.</p> <p>Criminal Law (461) — Punishment—Cruel and Unusual. The criminal syndicalism act, Laws 1919, p. 518, § 1, making certain acts a felony without prescribing the penalty and leaving the same subject to the general law in such case, Rem. Code, § 2265, which prescribes a penalty of not to exceed ten years in the penitentiary, or a fine not exceeding $5,000, or both, is not unconstitutional as providing cruel or unusual punishment.</p> <p>Same (3-1) — Statutory Provisions — Creation and Definition of Offenses. The criminal syndicalism act, Laws 1919, p. 518, § 1, is not void for indefiniteness in that the phrase “or which will tend to encourage disrespect for the law” is uncertain.</p> <p>Statutes (22) — Titles and Subjects — Sufficiency. The title to the criminal syndicalism act, Laws 1919, p. 518, §1, sufficiently indicates the particular subject and is “not too general for any purpose,” as the title need not be an index to the act.</p> <p>Constitutional Law (53) — Personal Rights — Liberty and Security. The criminal syndicalism act, Laws 1919, p. 518, § 1, subd. 3, making it unlawful for any person to become a member of any group of persons formed to advocate the prohibited acts, is not unconstitutional as unduly infringing the personal liberties of the citizen.</p> <p>Insurrection — Elements of Offense — Intent. Knowledge or intent is not an element of the offense of criminal syndicalism, Laws 1919, p. 518, § 1, and one voluntarily becoming a member of a group of persons prohibited by statute and doing this act is guilty whether he intended to violate the law or not.</p> <p>Criminal La-w (27) — Jurisdiction'—Locality of Offense. The criminal syndicalism act, Laws 1919, p. 518, § 1, makes it an offense to “be a member” of a group of persons formed to advocate certain prohibited things, regardless of the county in which accused “joined” the organization; hence, although one joined in Y. county, he may be informed and proceeded against in the county in which he was found and committed the prohibited acts.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered February 24,1920, upon.a trial and conviction of violation of the game laws.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered December 4, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

<p>Sales (85) — Operation and Effect — Transfer of Title — Intent. Under the rule that the intent governs the passing of title, a definite quantity of wheat passed to the buyer January 20, at the time the contract was made and the price paid, although the contract provided that it was to be delivered f. o. b. cars at D. to be forwarded before April 1, where the wheat, part of a quantity of uniform quality sacked and stored in a warehouse, was inspected and insurance policies thereon immediately assigned to the buyer.</p>

<p>Robbery (7) — Evidence—Admissibility. It is a sufficient identification of a revolver, used in an attempted robbery, for tbe witness to testify that it closely resembles the one used by the accused and from its appearance witness believes it to be the same.</p> <p>Criminal Law (448) — Appeal—Harmless Error — Evidence. Error in admitting in evidence a revolver thought to be the one used by accused in an attempted robbery would not be prejudicial, where it was similar to the one used.</p> <p>Appeal (143) — Exceptions—To Instructions. A general exception to an instruction is not sufficient to raise the point that it should have been given in writing.</p> <p>Trial (80) — Instructions—In Writing — Necessity. Rem. Code, § 339, requiring instructions to be given in writing is not applicable to ordinary admonitions, such as a statement that the jury has nothing to do with the punishment if accused is found guilty.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Brawley, J., entered March 15,1920, dismissing an action for an injunction, 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 February 6, 1920, upon findings in favor of the plaintiff, in an action for rescission, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Miller, J., entered June 2, 1920, upon a trial and conviction of seduction.</p>

<p>Master and Servant (42, 154) — Negligence—Places for Work— Question for Jury. It is for the jury to determine whether it was negligent for an employer to place an 800-lb. roll of belting on edge, unsupported so that it might fall upon a servant, and covered with burlap and a pile of paper cartons, rendering it obscure.</p> <p>Same (98, 161) — Assumption of Risks — Knowledge — Question for Jury. In such a case, whether plaintiff knew or should have .known of the condition of the belting is for the jury, where he testified that he did not know it was unsupported.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered January 30, 1920, upon the verdict of a jury rendered in favor of plaintiffs, in an action for damages.</p>

<p>Railroads (61, 71) — Accident at Crossing — Negligence—Failure to Signal- — -Evidence—Question for Jury. Whether a train crew sounded warnings at a railroad crossing is a question for the jury, where two witnesses testified that they were in a position to hear and would have heard a whistle or bell when the train passed if sounded, and heard none, although employees on the train testified that the bell was rung and whistles blown.</p> <p>Same (64-66) — Contributory Negligence — Question for Jury. Whether deceased, driving a motor truck, and struck at a crossing by an electric train, was guilty of contributory negligence is a question for the jury, where the train approached without warning in a cut, on a down grade, the train men first saw the truck forty feet away when its front wheels were upon the track, and no one saw what the deceased did before he attempted to cross.</p>

Appeals by both parties from judgments of the superior court for Spokane county, Blake, J., entered June 7, 1920, in related actions quieting title, granting restitution and decreeing an account, after a trial to the court on the merits.

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered December 9, 1919, upon findings in favor of the plaintiff, in an action to determine ground rent, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Benton county, Truax, J., entered January 7, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Appeal by plaintiffs from a judgment of tbe superior court for King county, Ronald, J., entered December 24, 1919, in favor of one of tbe defendants, notwithstanding tbe verdict of a jury for plaintiffs, in an action in tort, after a trial on tbe merits.</p>

<p>Corporations (128, 129) — Officers and Agents — Dealings With and Fraud as Against Corporation or Shareholders. A banker’s demand in temporary control of a corporation, to be reimbursed for interest, and a note given therefor, is not fraudulent, where he was trustee for a new corporation organized to help another out of difficulties, and agreed to “take” bonds of the new corporation at par, and borrowed money thereon to secure a working capital, at a higher interest rate than borne by the bonds; his demand for reimbursement for the difference in interest being acceded to by the adverse interest.</p> <p>Same (189-1) — Corporate Bonds — Purchase of Bonds — Or Loan of Credit. There was not an actual purchase of bonds, but a mere loan of credit to a corporation which was bound to make reimbursement of the difference between the interest paid on the bonds and on money borrowed thereon, where a banker and associates agreed to “take” at par the bonds of a new corporation, which took over assets of another in difficulties, the banker to have temporary control of the corporation and to borrow money for a working capital, the matter being referred to as an “underwriting.”</p>

<p>Divorce (100, 104) — Custody and Support of Children — Grounds for Award of Custody — Modification. It is.error to dismiss an application to modify a decree of divorce with reference to the custody of minor children, without evidence, for the reason that a similar application made a few months before had been denied on the merits, and because of indefiniteness in the allegations, where it was alleged that conditions had changed and the welfare of the children was at stake.</p>

<p>Loss and Lagging (55-58) — Sales (10, 22) — Delivery and Acceptance — Evidence—Sufficiency. Findings that a sale of logs had been made between the parties will be sustained, where the matter depended largely on the credibility of the two parties whose testimony was conflicting, the buyer’s conduct being explainable only by accepting the truth of his version that the sale was effected and that he was to send a tug for the logs as soon as they were scaled.</p> <p>Frauds, Statute of (25, 26) — Sale of Goods — Acceptance—-Delivery. Rem. Code, § 5290, requiring a written memorandum of a sale of goods for $50 or over, unless the purchaser shall accept and receive part of the goods, or make a payment, does not require that the acceptance and delivery be contemporaneous with the making of the contract; but the statute is satisfied where the seller of logs authorizes the buyer to take possession after they are sealed, which was done.</p> <p>Logs and Logging (55) — Sale (86, 87) — Delivery. A seller’s authorization to a buyer of logs to take possession as soon as they are scaled, is a continuing authorization, which shows an intent to deliver the logs to him.</p> <p>Frauds, Statute op (25, 26) — Sale oe Goods — Acceptance. There is a sufficient acceptance of logs sold to answer the statute of frauds where the seller had inspected them, agreed to pay for them as soon as scaled at a given price per thousand, and when scaled sent a tug for them and took possession as authorized to do.</p> <p>Sales (119) — Vendor’s Lien — Waiver. A seller’s authority to a buyer of logs to take possession, which was done, is a waiver of a vendor’s lien for the price.</p> <p>New Trial (40) — Newly Discovered Evidence — Probable Eppect. A new trial for newly discovered evidence should not be granted where it merely corroborated a party upon a disputed point, and would not require a different result.</p>

<p>Appeal from a judgment of the superior court for Benton county, Truax, J., entered January 7, 1920, upon findings in favor of defendant, in an action to quiet title.</p>

, entered October 27, 1919, upon findings in favor of the defendant, denying a writ of habeas corpus to obtain custody and possession of a minor child, after a trial to the court.

, entered April 5, 1920, upon finding's in favor of the plaintiff, in an action to recover for labor performed in constructing* a logging railroad, tried to the court.

Application filed in the supreme court January 25, 1921, for a writ of mandamus to secure the issuance of a state warrant.

<p>Master and Servant (20-1) — Workmen’s Compensation Act — Permanent Partial Disability — Award—Limit—Statutes—Construction. Under Laws 1919, p. 355, § 4, which provides a specific schedule of awards to workmen in extra hazardous employments for certain permanent partial disabilities, followed by a general provision for compensation for any other permanent partial disability in the proportion that the same bears to the scheduled disability which it most closely resembles, “but not in any case to exceed $2,000,”' the $2,000 limitation does not apply to the scheduled disabilities but only to the “other” unscheduled disabilities provided for in that paragraph.</p> <p>Same (20-1) — Permanent Partial Disabilities — Award por Further Accident — Statutes — Construction. To the extent of the scheduled awards to workmen in extra hazardous employments for certain permanent partial disabilities, Laws 1919, p. 355, § 4, the law is mandatory; and the provision in subd. g (p. 363) to the effect that, in case of a further accident to a recipient of a lump sum, his final compensation shall be adjudged with regard to the combined effect of his injuries, cannot be applied to contract or limit the award in case of another disability within the schedule.</p> <p>Mount and Mackintosh, JJ., dissent.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered July 7, 1920, dismissing an action upon sustaining a demurrer to a complaint for an injunction.</p>

<p>Forcible Entry and Detainer (5) — Process—Time for Service. The service of summons in forcible entry and detainer prior to the filing of the complaint is sufficient.</p> <p>Same (5). Rem. Code, §§221 and 222 prescribing the requirements of a summons for the commencement of general actions does not apply to actions of forcible entry and detainer.</p> <p>Landlord and Tenant (127) — Recovery of Possession — Unlawful Detainer — Right to Maintain. The lessor is entitled to recover possession in an unlawful detainer action, under Rem. Code, § 812, subd. 4, and the express provisions of § 827, upon the lessee’s violation of a covenant not to assign or sublet, without regard to the form of the assignment.</p> <p>Same (24, 28, 39-2) — Term for Years — Assignment and Subletting — Covenants and Conditions — Breach. A lease for a term of years containing a covenant 'not to assign or sublet without the consent of lessor entitles the lessor to a forfeiture regardless of whether the lease expressly provided for a forfeiture on breach of such covenant, where the evidence shows that the lessees had assigned the lease.</p> <p>Same (144) — Term for Years — Unlawful Detainer — Assignment —Evidence—Admissibility. In an action of unlawful detainer, on breach of a condition not to assign the lease, the testimony of a witness that she accounted to the assignee for receipts of the operation of the premises is admissible to show the assignment.</p> <p>Same (145) — Unlawful Detainee — Evidence—Sufficiency. There is sufficient evidence of the assignment of a lease in violation of a covenant not to do so without the written consent of the lessor, where it is shown that a witness had accounted to the person to whom it was alleged the lessees had assigned the lease for the receipts from the operation of the apartment building.</p> <p>Same (148) — Trial — Instructions. Under the statute, Rem. Code, § 827, intending unlawful detainer as a remedy for breach of a condition against assignment and subletting without the landlord’s consent, it is proper to give instructions permitting the jury to find such assignment and subletting without direct evidence on the matters.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered March 27, 1920, upon the verdict of a jury, rendered in favor of plaintiff, in an action in tort.</p>

<p>Appeal from a judgment of tlie superior court for King county, Allen, J., entered March 2, 1920, denying a petition for administration of partnership property, after a hearing on the merits.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered December 8, 1919, upon the verdict of a jury, rendered in favor of the plaintiffs, in an action for damages from flooding land.</p>

<p>Partition (17) — Incidental Relief. In an action for partition, in passing upon a claim to the land, the court may determine a claim for legal and professional services rendered to the claimant, and give full and complete relief to all parties to the controversy.</p> <p>Attorney and Client (41) — Contracts for Compensation — Contingent Fees — Validity. An agreement for contingent attorney’s fees, which was solicited, contrary to our code of ethics, Rem. Code, § 2370, entered into without fraud or misrepresentations, is not therefore void as against public policy, in view of Id., § 474, leaving the measure or amount of attorney's fees to the agreement of the parties.</p> <p>Estoppel (52, 53) — Equitable Estoppel — Acceptance of Benefits —Contracts. A client who permits an attorney to spend time and money under a contract for a contingent fee and accepts the benefits of the contract is estopped to assert its invalidity on the ground that it was solicited and against public policy.</p> <p>Attorney and Client (40) — Contracts for Compensation — Construction and Operation. An attorney’s contract for twenty per cent of the share of an estate that might be recovered through litigation or otherwise, covers both real and personal property.</p> <p>Same (43-44-1) — Compensation—Actions—Judgment. When, in an action for partition, a client repudiated her contract with an attorney to pay him twenty per cent of the share of the estate recovered, the attorney is entitled to personal judgment for the contract amount, and to have the same impressed upon her interest in the real estate.</p>

<p>Criminal Law (191) — Continuance—Grounds—Discretion. It is discretionary to deny a continuance in a criminal case for want of necessary witnesses, and not error where the affidavits did not sufficiently comply with Rem. Code, § 2135.</p> <p>Criminal Law (444) — Appeal—Review—Harmless Error. Error in setting a case for trial without strict compliance with statutory requirements is cured by resetting the case for a later date.</p>

<p>Vendor and Purchaser (30, 107) — Construction of Contract— Provision for Payment of Taxes. A contract for the sale of land providing that the “taxes, rents, insurance . . . shall be apportioned from date of deed,” refers to taxes for the year in which the contract was made; and Rem. Code, § 9235, providing for a lien for unpaid taxes, as between grantor and grantee, in the absence of an agreement as to who shall pay the same, has no application.</p>

, entered March 11,1920, upon findings in favor of proponent, admitting a will to probate, after a hearing on the merits.

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered October 25,1919, upon trial and conviction of sodomy.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 14, 1920, upon a trial and conviction of being an habitual criminal.</p>

, entered December 13, 1919, dismissing an action to collect unpaid stock subscriptions, after a trial to the court on the merits.

’ Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered January 10, 1920, upon findings in favor of the plaintiff, in an action of replevin, tried on the merits to the court.

, entered November 2, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for an injunction and damages.

, entered April 24, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action on implied contract.

<p>Contbacts (181) — Evidence of Agreement— Question for Juey. Tbe positive testimony of a party that he bad entered into an oral contract with defendant is sufficient to take tbe case to tbe jury.</p> <p>Corporations (155, 162, 169) —Representation — Contracts — Apparent Authority — Evidence—Sufficiency. Where tbe by-laws of a corporation do not authorize tbe secretary-treasurer to make a contract for tbe company, tbe company is not liable unless it was within the apparent authority which be assumed with tbe knowledge of tbe company; and tbe question is one for tbe jury where be was tbe officer in chief control of tbe company and to a large extent managed and directed extensive operations running into many millions of dollars, that be employed and placed on tbe pay roll two men as general and assistant superintendent for tbe construction of a plant at $300 per month, and further entered into an agreement with them for additional compensation of seven and one-half per cent of the construction cost, if tbe company should be successful.</p> <p>Contracts (12) — Evidence of Agreement — Reasonableness. Upon an issue as to tbe terms of an oral contract for employment, it is admissible to prove tbe reasonable value of tbe services as tending to show tbe probability of tbe making of tbe contract.</p> <p>Witnesses (72, 79, 85) — Cross-Examination — Discretion — Limitation — Hypothetical Questions. Where an expert has testified on direct examination that seven and one-half per cent of tbe cost was reasonable compensation for engineering services, it is error to exclude, on cross-examination, an answer to a hypothetical question which went into tbe details of the services performed under tbe contract; it not being discretionary to so limit tbe cross-examination.</p> <p>Appeal (395) —Review — Presumptions — Admissibility of Evidence. Tbe rule that error cannot be predicated on sustaining an objection to evidence, in tbe absence of an offer of proof as to what tbe answer would be, has no application to objections to proper cross-examination.</p> <p>Evidence (153) — Parol Evidence — Receipts. Where a check was issued and accepted, reciting that it was “full settlement” of all expenses and services, it is competent to show that it was accepted on account only, under an oral agreement to make a complete settlement later.</p> <p>Accokd and Satisfaction (2) — Fobm of Agbeement — Receipt in Full. Where there was an agreement to pay a certain sum on account, an accord and satisfaction is not shown by the sending and acceptance of a check for a less sum reciting that it was in full settlement.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wilson, J., entered November 8,1920, sustaining upon appeal the decision of the public service commission fixing gas rates.</p>

<p>Vendor and Purchaser (3) — Contract—Construction. A note at the foot of a contract for the trade of lands requiring delivery of possession and marketable title does not impose any burden other than the law would require.</p> <p>Same (10) — Contract—Validity—Form—Parties. Informalities in referring to the parties to a trade as “you” and “our,” do not invalidate a contract for a trade, where the names of the parties clearly appear in their signatures, making and accepting the proposition.</p> <p>Frauds, Statute of (58) — Oral Evidence — Identifying Contract Referred to. A written contract is not within the statute of frauds because of the necessity to resort to oral testimony for the purpose of identifying contracts had on the land and referred to, and not to establish any of its essential terms.</p> <p>Specific Performance (13-2) — Contracts Enforceable — Completeness. Specific performance of a contract for the trade of lands will not be denied for lack of completeness, in that interest was to be computed, where the amount was ascertainable by the computation.</p> <p>Same (28) — Sufficiency of Performance or Tender. Specific performance of a trade of lands should not fail on account of an insufficient tender of performance, where the defendants based their claim in the first instance on the ground of fraud; since the court may permit a sufficient tender to be made.</p> <p>Same (17) — Contracts Enforceable — Possession. Specific performance of a trade of lands does not necessarily fail because the parties were not put in possession of the properties.</p>

<p>Criminal Law (36)- — Venue—Change—Local Prejudice. Prejudicial error cannot be predicated on denying a motion for change of venue on account of local prejudice, where both sides were permitted to excuse any juror living in localities where there was a possibility of prejudice.</p> <p>Jury (62) — Selection — Objections and Exceptions. Error in denying a challenge to a juror cannot be assigned where it does not appear that he was not subsequently removed by a peremptory challenge, or that accused exhausted all his challenges.</p> <p>Criminal Law (224) —Trial — Compelling Calling of Witness. The state is not required to. call all the witnesses indorsed on the information, and error cannot be assigned thereon.</p> <p>Criminal Law (388) — Appeal—Necessity of Objections — Arguments of Counsel. Error cannot be assigned upon improper conduct of counsel for the state in his address to the jury where no objection was made or any request to instruct the jury to disregard it.</p>

<p>Application filed in the supreme court November 4, 1920, for a writ of certiorari to review the order of the superior court for Kittitas county, Davidson, J., entered November 4, 1920, adjudging a public use and necessity in condemnation proceedings, after a trial to the court.</p>

, entered July 27, 1920, upon findings in favor of the defendant, in an action of unlawful detainer, tried to the court.

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered July 20,1920, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Master and Servant (20-2) — Injuries to Servant — Federal Liability Act — Interstate Commerce. A section hand, injured on the derailment of a hand car, was not engaged at the time in interstate commerce or the business of the company, where he and others had quit work for the afternoon and, contrary to the rules of the company, had left their section to obtain supplies for their boarding club, without the knowledge of the company, which furnished free transportation for all supplies needed by the men.</p> <p>Same (77) — Injuries to Servants — Vice Principals — Foremen— Authority. A section foreman’s order to his men to leave their section, contrary to the rules of the company, and obtain supplies for their boarding club, was not an order concerning the company’s business and created no liability on the part of the company.</p>

<p>Taxation (229) — Inheritance Tax — Exemptions. The rule that exemptions from the inheritance tax are to be strictly construed and the beneficiary clearly within the statutory provisions, is qualified as to charitable bequests, which should be upheld and given effect whenever possible.</p> <p>Evidence (2) — Judicial Notice — Matters oe Common Knowledge. The courts will take judicial notice that most religious corporations are charitable.</p> <p>Taxation (229) — Inheritance Tax — Exemptions. Extrinsic evidence is admissible to show the charitable purpose of a certain “Home for Boys”, and that a bequest for its use was, therefore, not subject to the inheritance tax, under Laws of 1917, p. 597, § 7, exempting certain charitable bequests.</p> <p>Same. Where at the time of a bequest to a home for boys, it was exclusively maintained for the support and education of orphaned or indigent children, it is expressly exempted from the inheritance tax by Laws of 1917, p. 597, § 6.</p>

, entered June 23,1920, upon findings in favor of the defendant, awarding property in divorce proceedings, after a trial to the court on the merits.

<p>Appeal from a judgment of the superior court for Spokane ■ county, Webster, J., entered July 12, 1920, upon finding defendant guilty of contempt of court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Frater, J., entered May 17,1920, upon a trial and conviction of forgery.</p>

<p>Appeal from a judgment of the superior court for Benton county, Truax, J., entered January 7, 1920, upon a trial and conviction of criminal syndicalism.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered April 9, 1919, upon a trial and conviction of an attempt to rape.</p>

, entered July 19, 1920, directing the issuance of a writ of mandamus to compel defendant to register relator as a voter, after a hearing to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered June 12,1919, dismissing á prosecution for criminal syndicalism upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered March 20, 1920, upon a verdict rendered in favor of plaintiff, in an action for breach of promise, after a trial on the merits.</p>