Volume 115 — Washington Reports

Cross-appeals from a judgment of the superior court for King county, Jurey, J., entered January 5, 1920, upon findings in favor of the defendants, in an action of replevin, tried to the court.

<p>Criminal Law (-175)—Evidence—Sufficiency to Support Conviction. Upon a charge of criminal syndicalism, the evidence that, shortly before the accused’s arrest, he destroyed his membership card in the I. W. W. does not require the jury to find him not guilty.</p> <p>Same (182)—Evidence—Sufficiency—Place of Offense. Upon a charge of criminal syndicalism, the place of the commission of the ofíense is sufficiently shown to have been within the county, where his residence therein was shown, and he was only temporarily at the logging camp outside the county when he was arrested.</p> <p>Same (140)—Evidence—Furtherance of Common Purpose. Literature of the I. W. W. is admissible in a prosecution of a member for criminal syndicalism without otherwise connecting defendant therewith.</p>

<p>Criminal Law (324)—Trial — Conduct of Jury — Separation. Where, without the consent of the accused, the jury separated after being sworn, it is error to proceed with the trial over the objection of the accused.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered June 21,1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wilson, J., entered July 11, 1919, upon findings in favor of the plaintiffs, after a trial to the court on the merits, in an action to quiet title.</p>

<p>Municipal Cokpobations (379, 389)—Use of Highway—Mutual Rights—Negligence—Evidence—Sufficiency. The driver oí an automobile in a city, which crashed into a car ahead when it turned out .to avoid a car parked at the curb, is guilty of contributory negligence, where he was following within four or five feet of the car ahead; since that car had the right of way.</p>

, entered May 22, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a soldier serving in the spruce production corps in a logging camp.

, entered October 15,1920, upon findings in favor of the defendant, in an action on contract, tried to the court on the merits.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered March 27,. 1920, upon a verdict in favor of the plaintiff, in an action to recover for loss of goods in storage.</p>

<p>Appeal (385)—Review—Error Invited by Appellant. Defendant in an action of replevin cannot allege error in changing the form of the action to an equitable one and foreclosing the lien of a chattel mortgage, where defendant invited the error by setting up the chattel mortgage in his answer and prayed an .adjudication of the amount due.</p> <p>Replevin .(13)—Conditions Precedent—Demand. Proof of a demand in replevin is not necessary where defendant denies plaintiff’s title and claims ownership himself.</p> <p>Usury (7, 17)-—Discounts—Evidence—Sufficiency. A party purchasing a conditional bill of sale, intended as a mortgage, at a discount, and taking out a new bill of sale in its own name to more fully protect itself, is not thereby guilty of a fraud in exacting usurious interest on the sum it paid on discounting the original mortgage.</p>

, entered July 6, 1920, upon findings in favor of the plaintiff, in an action to foreclose a deed intended as a-mortgage, tried to the court.

<p>Appeal from an order of the superior court for Thurston county, Wright, J., entered May 26, 1920, vacating a default judgment prematurely entered.</p>

<p>Appeal from an order of the superior court for King-county, Frater, J., entered June 26, 1920, directing an administratrix of an estate to include additional property in the inventory, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered November 3, 1920, granting a nonsuit, in 'an action to quiet title to certain real estate.</p>

, entered June 12, 1920, upon findings in favor of plaintiff, after a trial before the court without a jury, in an action in tort.

, entered February 6, 1920, upon findings in favor of plaintiff, after a trial before the court without a jury, in an action in tort.

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered December 10, 1919, upon the verdict of a jury in favor of the plaintiff, in an action on contract.</p>

, entered June 28, 1920, dismissing an action to enforce a claim against an estate, upon sustaining a demurrer to the complaint.

, entered April 23, 1919, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action for loss of goods by a carrier.

<p>Principal and Aoent (36%)—Powers of Agent—Implied Authority—Negotiable Instruments. Where an employee, representing himself as purchaser of his employer’s. business, borrows money in the trade name of the employer and indorses and deposits the check for the loan in the same manner, the remedy of the lender, in the absence of proof that the employee had borrowing powers or that the money went to the credit or account of the firm, would be against the employee alone.</p> <p>Sales (176)—Conditional—Filing—Constructive Notice to Creditors. A conditional sale contract of a business, duly recorded in the proper office, is constructive notice of the state of the title to the business.</p> <p>Fraudulent Conveyances (14)—Sales in Bulk—Statement to Creditors—-Omitting Disputed Claim. The purchaser of a garage business, who demands and receives a statement of the actual creditors of the concern, cannot be held liable under the bulk-sales law for the omission therefrom of a disputed claim, consisting of a loan to an employee who had falsely represented himself as owner of the business.</p>

, entered April 12, 1920, upon the verdict of a jury rendered in favor of defendant on cross-complaints, in an action on open account.

, entered October 1, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a policy of fire insurance.

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered March 8, 1920, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Appeal and Ebbob (418)—Review—Findings. A finding hy the trial court that appellant had directed the return of law hooks conditionally sold to respondent, held to he sustained hy a preponderance of the evidence.</p> <p>Sales (182)—Conditional Sales—Remedies op Selles—Election. On a conditional sale of law hooks retaining title in seller until paid for in full and giving the purchaser the option to cancel the contract after payment of $100, the purchaser’s right to elect to return the books after making payments in excess of that sum, would not he defeated where the further payments had been made with the understanding between the parties that he reserved the option to return the books.</p>

<p>Appeal from a judgment of the superior court for Yaldma county, Taylor, J., entered June 9, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for unlawful detainer.</p>

<p>Municipal Cokpobations (26, 325)—Licenses — Delegation of Authobity. Delegation of power to fix a license fee cannot he vested in a ministerial officer, where by city charter (Tacoma, art. 1, suhd. 32), and under statute (Rem. Code, § 7507, suhd. 33), the city council is vested with power to fix the amounts of licenses granted hy the city.</p>

, entered September 7, 1920, upon findings in favor of the plaintiff, in an action on a promissory note, tried to the court.

<p>Set-off and Counterclaim (3)—Contract. In an action to recover for extras due upon a building contract, where the defense was that the owner of the building should be allowed an offset for failure of full performance of skylight specifications, but without making any counterclaim therefor, and the evidence showed the cost of installing the additional skylight was in excess of the amount due for extras, the defendant was entitled to a dismissal of the action.</p>

<p>Contracts (63)—Construction—Particular Phrases. A contract for the sale of mining claims providing for partial deferred payments, with interest thereon “from the time of becoming due until paid,” later modified, draws interest only on such of the instalment payments as were not liquidated when they matured under the modified agreement, where by the modification the dates of the deferred payments were changed and the balance of $45,000 “and the interest thereon” was to be paid at the substituted dates, “until the full balance shall be paid, it being understood that interest is to be computed as per the agreement” originally made, which “shall remain in full force and effect except as modified by this supplemental agreement.”</p> <p>Same (104)—Modification—Consideration. Where there is no default upon a contract, the consideration for such contract is sufficient to support a modification thereof contained in a supplemental agreement.</p> <p>Payment (32)—Recovery—Voluntary Payments. Where mining property, purchased by plaintiff on deferred payments under a contract providing for a forfeiture in the event of noncompliance with its terms, had been improved to the value of $200,000, the payment of excessive interest demanded by defendant on the deferred payments was not voluntary and could be recovered back.</p>

<p>Libel and Slandeb (10) —Pbivileged Communication — Judicial Pboceeding. Defamatory words addressed by the United States district attorney to one suspected of a criminal offense, made in the presence of a secret service officer charged with the investigation of such offenses, are absolutely privileged.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered June 7, 1920, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered May 10,1920, dismissing an appeal from a decision of the state hydraulic engineer, after a hearing on the merits.

Application filed in the supreme court February 16, 1921, for a writ of prohibition to the juvenile court of King county, Dykeman, J., to prohibit the court from proceeding with a cause.

<p>Appeal (150)—Review—Exceptions. Where findings of fact are made in an equity case, they are as controlling as in an action at law, and are not reviewable on appeal unless exceptions are taken.</p> <p>Same (146, 147)—Exceptions—Necessity—Striking Statement of Pacts. Where only a general exception was made at the conclusion of all the findings of fact made by the court, a motion in the appellate court to strike from the files the statement of facts and the abstract of the record must be granted.</p> <p>Highways (39)—Assessments—Benefits to Property Included. The cancellation by the superior court of an assessment for highway construction under the Donohue Road Law (Rem. Code, § 5731) of lands “within two miles of the center line of the improvement,” on the ground that the “lands have no direct lateral highway connection with the said improved highway and have only a terminal road connection outside the improvement district,” was erroneous, the only exception allowed being, as provided in Rem. Code, § 5739, subd. 4, and Laws 1917, p. 243, § 5, subd. 3, that “land within the improvement boundary whose natural outlet will not be in whole or in part over said road when improved shall not be separately assessed.”</p> <p>Same (39)—Assessments—Property Included—Natural Outlet —Statutes—Construction. “Natural Outlet” as used in Donohue Road Law (Rem. Code, § 5739, subd. 7; Laws 1917, p. 243, § 5, subd. 3) does not mean a natural highway or bridge across a river, but a means of egress or exit from lands within a proposed improvement district.</p>

<p>Witnesses (106)—Cross-Examination—Evidence oe Former Conviction. Under Rem. Code, § 2290, where a defendant in a criminal case admitted on cross-examination that he had been convicted of an offense, but denied that he had been convicted of two offenses of a like nature, it was not error to permit the introduction of certified copies of the record of two convictions for the purpose of impeaching his credibility.</p> <p>Criminal Law (297)—Trial — Instructions — Degree oe Oeeenses. In a prosecution for the unlawful sale of intoxicating liquor, where the only evidence was addressed to the fact of illegal sale, it was proper for the court to refuse to instruct the jury that they might find the defendant guilty of the lesser offense of unlawful possession of intoxicating liquor.</p> <p>Intoxicating Liquors (6) — Prohibition — Bootlegging — 18th Amendment. Prosecution under state laws for bootlegging and conducting illegal liquor joints is lawful as in aid of the enforcement of the 18th amendment to the constitution of the United States and the Volstead act passed pursuant thereto.</p> <p>Same (50)—Criminal Prosecutions—Evidence—Sueeicienct. In a prosecution for the illegal sale of intoxicating liquor, testimony of a witness that he purchased moonshine whiskey from the defendant, but could not recollect whether it had'any intoxicating properties, was sufficient to uphold conviction.</p> <p>Criminal Law (451)—Appeal—Harmless Errors—Argument oe Counsel. Misconduct of the prosecuting attorney in asking accused whether he had been convicted of living off the earnings of a fallen woman was harmless error, where the court restricted the answer to the fact of conviction of a previous offense and did not permit the prosecutor to parade the nature of the offense before the jury.</p>

<p>Brokers (30)—Action fob Commission—Defenses—Contract of Owner. Where a broker, authorized by written contract to secure a purchaser for a certain forty-acre tract, procures a purchaser ready, able and willing to purchase same, provided the owner sell him an additional forty-acre tract, and a sale of the two tracts is made to the broker’s purchaser, the broker is entitled to a commission upon the sale of the tract covered by his contract.</p> <p>Appeal (487)—Judgment — Matters Determined Without Remand. Where the trial court takes a case from the jury and renders judgment for defendant, the supreme court, on reversing same, has authority to enter final judgment in favor of plaintiff.</p>

<p>Appeal from a judgment of tbe superior court for Snohomish county, Alston, J., entered August 10,1920, upon findings in favor of the defendants, in an action to subject property to the jurisdiction of the bankruptcy court for the benefit of creditors, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Back, J., entered July 21, 1920, upon a trial and conviction of unlawful communication with a prisoner.</p>

<p>Appeal (418)—Review—Findings bt Court. The findings of the trial court made on conflicting evidence will not be disturbed on appeal where the preponderance of the evidence clearly supports the conclusions reached.</p>

<p>Appeal from a judgment of the superior court for Douglas county, Hill, J., entered January 20, 1920, upon findings in favor of the defendant, denying a writ of prohibition.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered July 28, 1920, in favor, of the defendant, in an action to quiet title.</p>

<p>Warehousemen—Actions Against—Instructions. Where one deposited á quantity of wheat in a warehouse for which he received receipts, and later sold the wheat and delivered the receipts to another, who surrendered the receipts and received a less number of sacks, but a larger quantity of wheat than the receipts called for, and then assigned any claim existing against the warehouseman to the original depositor, who sued for the value of the wheat as represented by the difference between the number of sacks as shown by delivery and by warehouse receipts, it was not error to instruct the jury that there was no claim that plaintiff delivered to the warehouse wheat for which he did not receive receipts; that plaintiff’s rights were those only of his assignor, and that the market value should be found as of the time when his assignor made demand for the wheat.</p>

<p>Appeal from a judgment of the superior court for King county, Beals, judge pro tempore, entered September 22,1920, upon findings in favor of the plaintiff, in an action to set aside a conveyance, after a trial to the court.</p>

<p>Appeal from- a judgment of the superior court for Grays Harbor county, Skeeks, J., entered April 12, 1920, upon a trial and conviction of criminal syndicalism.</p>

, entered June 1,1920, in favor of the-plaintiff, upon overruling a demurrer to the complaint, in an action to secure a reduction of taxes assessed against tide lands.

<p>Trial (63)—Province op Court and Jury—Judgment Non Obstante. A motion for judgment notwithstanding the verdict should he granted only when the court can say, as a matter of law, that there is neither evidence nor reasonable inference from evidence sufficient to sustain the verdict.</p> <p>Street Railroads (17)—Operation—Injuries to Children. In an action against a street railway company for personal injuries inflicted upon a child two years of age, the evidence presents a question for the jury when it shows she was lying between the rails in a residential district; that she was dressed in a white dress; that the motorman did not notice her until within twenty-five or thirty feet of her, though he kept a lookout for persons who might be on the track; and that he stopped the, car as quickly as he could at a distance of ninety-five or one hundred feet beyond where he hit the child.</p>

<p>Limitation of Actions (56)—Fraud—Discovery. Under Rem. Code, § 159, barring an action for fraud unless prosecuted witbin three years after its discovery, one who purchased an eleven-acre orchard tract on the misrepresentation that it was free from frost, and that the waste land amounted to one and one-half acres, when in fact it amounted to two and one-half acres, failed to establish a right to rescind where the evidence showed he had been in possession and cultivating the land for five years, during the first two of which his fruit trees were injured by frost.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered March 12,1920, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered January 5, 1920, upon findings in favor of the defendant, in an action for the custody of a minor child, tried to the court.

<p>Municipal Cobpobations (566)—Claims Against Cobpobation— Sufficiency of Notice of Claim. A claim for damages for wrongful death, filed with the city of Seattle by the administrators of the decedent, is sufficient, under the charter and statute, when it names such personal representatives as claimants and gives their address for the preceding year.</p>

<p>Contracts (175)—Actions for Breach — Nonperformance by Plaintiff—Sales—Remedies op Buyer—Right of Action to Recover Price Paid. Where plaintiff made a tentative contract with defendant for $2,000 worth of furniture for a house which he contemplated buying, selecting some of the furniture and paying down $250, and later selected and paid for additional furniture of the value of $67.25, and directed that the articles covered by his payments amounting to $317.25 be sent to his father’s home, as he could not get possession of the house contemplated, the defendant’s refusal to make delivery at a time when plaintiff had not yet closed the deal for the house was a breach of contract, entitling plaintiff to the recovery of the money paid.</p>

<p>Appeal from a judgment of the superior court for King county, Allen, J., entered March 6,1920, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries.</p>

<p>Mechanics’ Liens (41)—Proceedings to Perfect — Separate Buildings. Where one contract calls for construction work on various buildings on different lots under a designated and fixed price per building, a mechanics’ lien attaches on each lot separately and only to the extent of the cost of the improvement on it.</p>

<p>Appeal (418)—Review—Findings. While the findings of a trial court have no binding force on appeal, they will always he given great weight because of the fact that the lower court has a distinct advantage over the appellate court in determining the truth because of having the witnesses before it.</p> <p>Pkincipal and Agent (25)—Compensation—Duration. Where an agent, employed at an agreed price for a certain time, continues to discharge the same duties after the expiration of the term, without any new agreement hut with the knowledge of the principal, the legal presumption is that he continues at the original rate of compensation.</p>

<p>Damages (13, 15)—Prospective Consequences — Circumstances Within Contemplation oe Parties—Loss op Proeits. A party is entitled to compensation for any injury to him or his property in such an amount as will compensate him for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom and can reasonably be presumed to have been in the contemplation of the parties, but he cannot recover damages for the remote or conjectural consequences of another’s acts.</p> <p>Same (9)—Proximate Consequences. Special damages by way of anticipated profits arising from an act injurious in itself may he recovered if they can he ascertained with reasonable certainty and can reasonably he presumed to have been contemplated by the parties when the transaction occurred, and were the natural and proximate consequences of the transaction, provided the complaining party has done everything in his power to make the damages as little as possible.</p> <p>Same (22, 27)—Mitigation—Duty to Reduce. In an action for damages for the wrongful conversion of a tractor while plaintiff was engaged in plowing his potato land, the loss of profits on a prospective potato crop are not recoverable, where plaintiff did not exercise ordinary diligence to avoid the loss, in whole or in part, by straining his credit to procure another tractor, or by hiring or purchasing horses for the work, both tractors and horses being readily available in a near-by commercial center.</p>

, entered October 28, 1920, upon findings in favor of the plaintiff, in an action for personal injuries sustained in an automobile accident, tried to the court without a jury.

<p>Evidence (211) —Opinion Evidence — Competency op Expebts — Value. The omission of an element of value in giving expert testimony in a condemnation proceeding is a matter going to the weight of the testimony and not a ground for striking it.</p> <p>Same (211)—Opinion Evidence—Value. Expert testimony introducing improper elements of value is subject to motion to strike.</p> <p>Appeal (464)—Harmless Ebbok—Instructions Already Given. The refusal of proper requested instructions was not error, where they were covered by instructions actually given.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered June 30, 1920, dismissing an action to recover the value of beer destroyed by the sheriff, upon granting a nonsuit.</p>

Application filed in the supreme court March 17, 1921, for a writ of mandamus to compel the secretary of state to accept relators’ filing of articles of incorporation.

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered July 27,1920, upon findings in favor of the defendant, dismissing an action for damages, tried to the court.</p>

<p>Negligence (9, 12, 39)—Places Abutting on Highway—Excavations—Question fob Juey. In an action against a lot owner for damages sustained by a person nearly blind who fell into a building excavation adjoining a city sidewalk, a nonsuit was properly denied, where the evidence showed he traveled alone about the city for many years by the aid of a cane; that he was familiar with the street, but had not heard of the excavation nor of a pile of lumber on the sidewalk to be used in construction on the adjoining lot; that he struck the lumber pile with his cane, stepped aside to avoid it, and fell into the excavation, which was not guarded by railing or other protection; and that he sustained personal injuries as a result of his fall.</p> <p>Evidence (64)—Matebiality—Remoteness. In an action for damages for injuries caused by falling into an unguarded building excavation, it is proper to refuse to allow the officer charged with issuing building permits to testify whether defendant caused protection to be put around the property and as to whether witness observed .any barricade, where no time was fixed in the inquiry.</p> <p>Negligence (9, 44)—Places Abutting on Highway—Excavations —Contributory Negligence—Instructions. In an action for damages by a partially blind person for injuries received by falling into an unguarded building excavation, it was proper to instruct the jury that the mere fact of total or partial blindness does not debar one from recovery for the negligence of another which is the proximate cause of his injuries, if he himself is exercising ordinary care; but he would be bound to exercise that degree of care that an ordinarily careful and prudent person would have exercised under the circumstances and in a similar condition, and would require such use of his other senses as a reasonably careful and prudent person in his condition would have used.</p> <p>Appeal (464)—Review—Harmless Error—Requested Instructions. The refusal of several requested instructions was not error where the one given was a condensation of substantially all the matter proposed in the requested paragraphs.</p> <p>Damages (84)—Excessive Damages—Injuries to Foot, etc. Damages in the sum of $685 for injury to a foot was not excessive, where there was a dislocation of bones, the ligaments were torn, pain and suffering caused for months, considerable loss of time and a physician’s bill of $25.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 26,1920, upon granting a nonsuit, dismissing an action for personal injuries sustained in a collision with a street car.</p>

<p>Appeal from a judgment of the superior court for ■ Columbia county, Mills, J., entered May 19, 1920, dismissing a petition to contest a will.</p>

<p>Appeal (180)—Requisites—Final Judgments. An order of court modifying a judgment after its entry is a final order within Rem. Code, § 1716, subd. 7, and hence appealable within ninety days thereafter under Rem. Code, § 1718, prescribing such limitation on appeals from final orders and judgments.</p> <p>Appeal (80)—Right to Appeal — Election. The election of a party to appeal from an order modifying a judgment was not an improper procedure, though the question may have been reviewable by certiorari or other form of special proceeding.</p> <p>Judgment (121)—Opening—Time bob Application. Under Rem. Code, § 466, prescribing one year as limitation on proceedings to vacate or modify a judgment, an appeal from an order modifying a judgment must be taken within one year from the entry of the original judgment instead of from date of the modifying order or judgment.</p>

<p>Justices of the Peace (19-1)—Default — Opening ok Setting Aside. A judgment by default entered by a justice of the peace for failure to appear and plead should not he set aside hy the superior court where, through negligence of one of the attorneys of defendant who had knowledge of the default on the day of its entry, no written notice of application to set aside the judgment was filed with the justice within ten days after its entry, as required hy Rem. Code, § 1858.</p>

, entered March 10, 1920, in favor of the plaintiff, notwithstanding the verdict of a jury rendered in favor of the defendant, in an action on a promissory note.

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered July 6, 1920, upon findings in favor of the plaintiffs, determining the ownership of property in an action to foreclose a chattel mortgage, tried to the court.</p>

<p>Appeal from, a judgment of the superior court for Yakima county, Holden, J., entered March 20, 1920, upon the verdict of a jury in favor of plaintiff, in an action on contract.</p>

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

<p>Application filed in the supreme court March 4,1921, for a writ of prohibition to prevent the superior court for King county, Prater, J., from proceeding with a divorce action.</p>

<p>Application filed in the supreme court March 1,1921, for a writ of prohibition to restrain further proceedings by the superior court for King county, Gilliam, J., in an action for damages against a nonresident, after the overruling of objections to the jurisdiction of the person.</p>

<p>Appeal from a judgment of the superior court for Pend Oreille county, Carey, J., entered May 26, 1920,, dismissing an action for rescission, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for Benton county, Sessions, J., entered March 3, 1920, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered September 18, 1919, dismissing, on the merits, an action to vacate a sheriff’s sale and deed on execution, after a trial to the court.

, entered May 14,1920, upon an order sustaining a demurrer to the complaint and dismissing an action to restrain county commissioners from proceeding with a highway improvement.

<p>Husband and Wife (68)—Community Pkofebty—Sams by Wife. An agreement by the wife for the sale of community realty, made without the knowledge or consent of- the husband, is not enforceable where there was no element of estoppel binding the community.</p>

<p>Criminal Law (34)—Change of Venue—Discretion of Court. Under Rem. Code, § 2019, vesting the court with discretion with respect to granting a change of venue on the ground of alleged excitement or prejudice against defendant, the denial of a change by the court, after first expressing an opinion that a fair trial could not be had in the county and orally fixing a future date for determining to which county to send the case, at which time the whole question was reconsidered, would not constitute prejudicial error.</p> <p>Homicide (44)—Evidence—Admissibility—Circumstances Preceding Act. In a prosecution of certain members of the I. W. W. organization for the murder of the commander of the local company of the American Legion, evidence that another organization had made threats against the I. W. W., and a year and a half prior to the murder had assaulted their hall, was properly excluded where there was no evidence that deceased knew of the threats or made any overt act in carrying out any design of an assault upon the hall.</p> <p>Criminal Law (161)-—Evidence—Confession of Accomplice—Rebuttal—Admissibility. Where au accomplice testifies on the trial against his associates and is subject to cross-examination, proffered evidence that written statements made by him prior to the trial, substantially the same as his testimony, were procured under duress is inadmissible.</p> <p>Same (118)—Evidence—Competency—Remoteness. In a prosecution for murder by members of the I. W. W. organization, cross-examination of a witness for the state as to whether he had taken part in the deportation of a member of the organization about a year and one-half previously was properly excluded as immaterial.</p> <p>Same (118). In a prosecution of certain members of the I. W. W. organization for murder, the rejection of cross-examination of a witness for the state as to whether he was prejudiced against the organization was not prejudicial, the inquiry being remote, the organization itself not being on trial.</p> <p>Homicide (113)—Tbial—Instructions—Defense of Property. Under Rem. Code, § 2406, defining justifiable homicide, an instruction that a homicide committed by armed men placed at outside stations to defend persons, habitation, or property located in another place, constituted murder was proper, since the question whether persons stationed at places some distance from a hall were in the presence or company of those in the hall was one of law and not of fact.</p> <p>Same (132)—Appeal—Instructions as to Lesser Offense. Where an instruction on murder in the second degree was given as requested by defendants, they cannot assign it as error on the ground that the defendants were either guilty in the first degree or not at all.</p> <p>Same (119)—Trial—Instructions—Absence of Evidence Justifying Manslaughter. Under the presumption of law that homicide proven beyond a reasonable doubt is murder in the second degree, the burden rests upon the defendant to reduce it to manslaughter or to justify it.</p> <p>Criminal Law (437)—New Trial—Misconduct of Juror. An application for a new trial on the ground of alleged prejudice of a juror was properly denied upon conflicting affidavits, it further appearing that the juror joined in the lowest possible verdict against the defendants and joined in a written request to the court for leniency to all who were convicted; the weight of the evidence on affidavits for new trial on the ground of prejudice of a juror being more readily determinable by the trial court than by the appellate court acting on the affidavits alone.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J., entered October 18, 1920, upon findings in favor of the plaintiffs, in an action to cancel certain assessments levied for local improvements, tried to the court.</p>

<p>Witnesses (48-2)—Competency—Transactions With Deceased— . Effect of Examination by Adverse Pabty. The prohibition in Rem. Code, § 1211, against a party in interest or to the record testifying concerning a transaction with a decedent, where the other party sues or defends as the personal representative of such decedent, was not waived by the fact that, in a prior inquisitory proceeding, the party seeking to testify had been examined as a witness by the personal representative, under Laws 1917, p. 670, §§ 101, 102, to discover property of the decedent, where no part of the record of that examination had been introduced in evidence in the later proceeding.</p> <p>Executors and Administrators (152)-—Actions—Evidence—'Own-ership of Deceased. In an action by an administrator to recover property of the estate, it was admissible to prove possession and control of the property by decedent a short time prior to his death as evidence of his ownership. •</p> <p>Damages (30, 31)—Expense op Litigation—Attorney’s Fees. Laws 1917, p. 670, § 101, providing for the recovery of damages against any person embezzling or alienating the property of an estate, does not contemplate attorney’s fees as a part of such damages, the matter of attorney’s fees being regulated by another statute.</p>

<p>Appeal from a judgment of tlie superior court for Adams county, Carey, J.,. entered February 13, 1920, dismissing an action to restrain tbe sale of certain personal property.</p>

<p>Appeal from a judgment of the superior court for King county, Konald, J., entered May 4, 1920, upon findings in favor of the plaintiff, in an action for damages sustained in an automobile collision, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Prater, J., entered April 26, 1920, granting’ a nonsuit and dismissing two causes of action for damages for breach of warranty of title.</p>

, entered April 10, 1920, denying a mandatory injunction requiring defendant to remove the body of his wife to its original place of burial.

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered July 1, 1920, upon a trial and conviction of illegal transportation of liquor.</p>

<p>Appeal from an order of the superior court for King county, Abel, J., entered November 10, 1920, granting a temporary injunction, after a hearing before the court.</p>

, entered May 29,1920, upon the verdict of a jury rendered in favor the defendants, in an action in tort, after a trial on the merits.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered September 1, 1920, distributing an estate upon a final accounting.</p>

<p>Receivers (74)—Actions — Right op Action by Receivers — Claims on Behalp op Creditors. A receiver of an insolvent debtor was entitled to tbe possession of an automobile, stored by tbe debtor with a warehouse company upon which it had issued its receipt reciting that it would deliver same to the debtor “or order, at our warehouse, as and when directed upon the surrender of this receipt properly endorsed”, notwithstanding an attempted pledge of the car by delivery of the warehouse receipt without indorsement to the pledgee; since such transfer of the receipt was not sufficient in itself to constitute a delivery of possession as against the right of the receiver to administer the property of the insolvent.</p> <p>Pledges (3)—Validity—Delivery and Possession—Unindorsed Warehouse Receipt. Delivery of pledged property by the pledgor to the pledgee is absolutely necessary to the life of the contemplated pledge; and, while actual physical .movement of the property from the hands of one to the other may not be necessary, delivery of possession must be of such nature that the control and dominion over the property passes from the pledgor into the absolute control and dominion of the pledgee.</p> <p>Warehousemen (3)—Receipts—Negotiability and Transfer— Effect of Delivery Without Indorsement. Under the provisions of Rem. Code, § 3369, to the effect that a warehouse receipt can be transferred only by indorsement, mere delivery of an unindorsed warehouse receipt to a pledgee would not constitute delivery of possession of the goods, as against a receiver claiming right of possession for the benefit of creditors.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Carey, J., entered December 30, 1920, upon findings in favor of the defendants, in an action to quiet title, tried to the court.</p>

, entered August 3,1920, granting a final discharge to the administratrix of an estate, over the objection of certain heirs.

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered June 14,1920, upon conviction of criminal syndicalism.</p>

<p>Appeal (406)—Review—Discretion—Grant of New Trial. The granting or refusing a new trial is entirely discretionary with the trial court, except where pure questions of law are involved, and the action of the lower court will not he interfered with unless an abuse of discretion appears.</p> <p>New Trial (24-1)—Grounds—Inadequate Damages. The grant of a new trial on the ground of the inadequacy of a verdict of $500 for death, caused by the negligence of defendant, cannot be said to show abuse of the trial court’s discretion, where the evidence showed the deceased was an Indian woman, sixty-two years of age, but in splendid health and that her husband was greatly dependent on her and her services.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered June 7, 1920, upon conviction of criminal syndicalism.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Back, J., entered April 12, 1920, dismissing an action to rescind a contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered June 16, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

Consolidated appeals from judgments of the superior court for Benton county, Truax, J., entered February 18, 1920, upon convictions for the violation of Jaws relating to the tailing of fish.

, entered January 12, 1920, upon the verdict of a jury awarding damages in condemnation proceedings for a local improvement.

<p>Appeal from a judgment of the superior court for Pierce county, Fletcher, J., entered January 31, 1920, upon a trial and conviction of being a jointist.</p>

<p>Municipal Corporations (88)—Officers—Removal—Civil Service—Abolition of Office—Good Faith. A qualified incumbent of a position or office under the classified civil service of a city cannot be legislated out of office by a change in the name of the office, the duties of the position remaining substantially the same as before the change.</p> <p>Mandamus (89)—Jurisdiction—Scope of Inquiry. Mandamus is the proper remedy to restore to his former position an employee discharged in violation of the civil service laws, and to enforce payment of the salary attached to the office during the time he was separated therefrom.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered June 15, 1920, directing a verdict in favor of plaintiff, in an action on contract.</p>

<p>Elections (11)—Special Elections—Bond Issues—Notice—Publication and Posting. The character of notice to be given of a special election to authorize the issuance of road improvement bonds is governed by the special provisions of the law authorizing the issuance of such bonds (Rem. Code, § 5101) and not by the provisions of Id., § 4784, as amended by Laws 1919, p. 470, § 12, since the latter law applies only to the notice to be given of special elections for the purpose of filling vacancies in office.</p>

, entered July 15, 1920, dismissing an action in tort, upon setting aside a verdict and judgment for plaintiff, after a trial on the merits before a jury.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered October 28,1920, upon findings in favor of plaintiff, in an action to obtain a pension, tried to the court.</p>

<p>Damages (99)—Pleading—Impairment of Earning Capacity. In an action by husband and wife for personal injuries to the wife, in which there was evidence that the wife had been incapacitated for the performance of domestic duties, hut no claim therefor was made in the complaint, nor any proof of the pecuniary loss suffered by reason of inability to perform such services, it was error for the court to instruct the jury to take into consideration to what extent the wife’s capacity to perform domestic services had been impaired as a result of the injury.</p> <p>Trial (92)—Instructions—Abstract Instructions. An instruction to the jury upon a matter not in issue under the pleadings, but upon which there was evidence, cannot be regarded as harmless error on the theory of being in the nature of an abstract instruction.</p> <p>Trial (117)—Instructions—Cured by Withdrawal or Other Instructions. In an action for personal injuries to a wife, in which there was no evidence of the pecuniary value of the loss of the wife’s domestic services, an erroneous instruction by the court to allow for such loss was not rendered harmless by the court’s remission of $1,000 from the jury’s verdict for “permanent injuries” and allowing the verdict on “sustained injuries” in $3,000 to stand, where it was impossible to determine under which head the jury placed the loss of domestic services.</p>

<p>Jury (41)—Competency—Pecuniary Interest—Taxpayer. The pecuniary interest of taxpayers in an action against a county for damages is not such as to disqualify them from serving as jurors and necessitate the transfer of the cause to another county for trial.</p>

<p>Appeal from the judgment of the superior court for King county, Abel, J., entered July 12,1920, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Municipal Corporations (502)—Local Improvement Fund— Wrongful Diversion. Where a city collects any part of a special fund arising from the collection of improvement assessments and misappropriates it hy paying warrants issued on the fund insufficient to satisfy earlier warrants, it is liable to the holders of the earlier warrants from its general fund to the extent of such misappropriation.</p> <p>Limitation of Actions (45)—Local Improvement—Warrants—• Notice of Fund. Where an action against a city by a warrant holder, based on the misappropriation of a special fund, was barred by the statute of limitations, a transferee of the warrant could not maintain an action thereon under the rule that the statute begins to run against a party injured only from the time he acquires knowledge of the misappropriation; since a municipal warrant is not a negotiable instrument and a purchaser takes it subject to the defense that it was barred in the hands of the prior holder.</p> <p>Same (57)—Computation—Discovery of FLaud—Want of Diligence. In an action against a city to recover upon a warrant against a special fund which had been misappropriated by the city, a complaint alleging that a prior holder of the warrant had made repeated demands for its payment and was informed each time there were no funds available, was demurrable as showing on its face that such holder had sufficient knowledge to put him upon inquiry as to the specific cause therefor, and that his failure to discover that the absence of funds was' due to misappropriation by the city would not toll the statute of limitations either in his favor or in favor of his transferee.</p>

<p>Quieting Title (2)—Defenses—Adverse Claim of Title. An action by a diteb company to quiet title in itself to an irrigation canal, and to enjoin defendants from taking water therefrom, cannot be maintained where it appears that the defendants have a right to take water from the canal for irrigating and domestic purposes.</p> <p>Appeal (480)-—Determination of Cause—Scope of Relief to Defendant in Error. Where, in an action to quiet title, defendants sought affirmative relief, but the court dismissed plaintiffs action without undertaking to adjudicate the rights of defendants, they are not estopped on appeal to contend against plaintiffs right of recovery.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered May 29, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Insurance (109)—Estoppel or Waiver — Knowledge op Agent. Knowledge of an agent who issues an insurance policy, concerning the condition and title of the property insured, is the knowledge of the insurance company.</p> <p>Same (110)—Estoppel—False Answers by Agent. Where an insurance agent issues and delivers a fire policy containing forfeiture clauses contradictory to existing facts known to him at the time, the company* issuing the policy will be held to°have waived such inconsistent provisions.</p> <p>Same (91)—Forfeiture of Policy—Change in Title. The provision of a fire insurance policy voiding it “if, with knowledge of the insured, foreclosure proceedings be commenced or notice given for the sale of any property covered by this policy by virtue of any mortgage or trust deed,” would not apply to the insured’s notice of foreclosure proceedings in case of other classes of liens.</p> <p>Same (109)—Estoppel or Waiver—Notice to Agents. Where a fire insurance company was estopped to deny its liability because of its agent’s knowledge at the time of issuance of the policy that proceedings for the foreclosure of a lien had been commenced against the property, it would be estopped to defend on the ground that the insured had notice of the sheriff’s foreclosure sale, since the latter was but a natural consequence of foreclosure proceedings.</p> <p>Same (137)—Proof of Loss—Waiver by Officers or Agents. Formal written notice of loss required by a policy of fire insurance to be given by the insured to the company may be- waived by the adjuster for the company.</p> <p>Same (146)—Right to Proceeds—Policy for Benefit of Mortgagee. Where a contract for the sale of property provided that the purchaser should “keep the buildings on said premises in good repair and insured in such sum as they will reasonably bear loss if any payable to the first parties” (the vendors), insurance taken out by the purchaser in his own name inures to the benefit of the vendor, and in case of loss the vendor is entitled to priority in the insurance moneys as against the liens of other claimants against such fund.</p> <p>Same (150)—Right to Proceeds—Assignments—Priority. Where insured assigned one-half of the proceeds of a fire insurance policy to his attorney employed to collect the insurance, and later assigned more than one-half of the face of the policy to a creditor, the claim of the attorney in the insurance money is entitled to priority against the creditor because senior in time. .</p>

<p>Principal and Surety (1)—Creation of Relation—Evidence— Sufficiency. Where plaintiff, at the solicitation of the principal stockholder in a mining corporation, entered into a guaranty contract to protect a bonding company against liability for becoming surety on the mining company’s bond, there "being no personal promise of such stockholder to save the guarantor harmless, the obligation was that of the mining corporation and not that of the stockholder.</p> <p>Frauds, Statute of (1)—Debt of Another. The oral promise of a stockholder to reimburse a guarantor of a corporation for loss incurred by him by reason of such guaranty is void under the statute of frauds (Rem. Code, § 5289) as a promise to answer for the debt of another.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered July 2,1920, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered August 25, 1920, upon findings in favor of the defendant upon a counterclaim, in an action on an account, tried to the court.

, entered August 2,1920, upon the verdict of a jury rendered in favor of plaintiff, in an action for damages for misrepresentations in obtaining title to certain real property.

<p>Constitutional Law (49)—Police Power—Licensing of Dogs Reasonableness of Regulations. A statute providing for tbe licensing of dogs and payment of a fee therefor is a valid exercise of the police power, and does not violate Const., art. 7, §§ 1, 2, providing for equal and uniform taxation of property in proportion to its value.</p> <p>Same (100)—Class Legislation—Grant of Special Privileges. A statute relating to the licensing of dogs but expressly making its terms inapplicable to “cities of the first or second class regulating the licensing of dogs by ordinance”, does not contravene the provisions of Const., art. 1, § 12, prohibiting the granting by law to any citizen or class of citizens privileges and immunities which under the same circumstances shall not equally belong to all citizens.</p> <p>Same (126)—Due Process—Deprivation of Property. The due process of law clause of the Federal constitution (Amendment, Art. XIV., §1), and the special immunity and privilege clause of the state constitution (Art. 1, §§ 3, 12), are not contravened by a statute providing for the regulation and licensing of dogs.</p> <p>Same (129)—Due Process—Taxation of Property. Laws 1919, p. 27, providing for the regulating and licensing of dogs is not in contravention of the due process of law and special immunity clauses of the state and Federal constitutions, for the reason that it requires the money collected to be kept separate and applied to- the payment of damages caused by the depredations of dogs instead of applying the money collected to the general funds of the taxing power.</p> <p>Same (28)—Distribution of Governmental Powers—Jurisdiction of Courts—Justices of the Peace. Section 4 of the act relating to dogs (Laws 1919, p. 27), providing that claims for damages for domestic animals killed or injured by dogs shall be presented by the owner to the nearest justice of the peace for investigation of facts and determination of the value or the damages, and a certificate filed by such justice with the county treasurer stating the amount of damages sustained, requires of the officer a ministerial rather than a judicial act, and is not violative of art. 4, §§ 1, 6, 10, of the state constitution.</p> <p>Statutes (14)—Titles op Acts—Unrelated Subjects. Const., art. 2, § 19, providing that no act shall embrace more than one subject, which shall be expressed in the title, does not prohibit the enactment of a complete law on a given subject, even though the provisions of the law may be numerous and varied.</p>

, entered November 23, 1920, upon findings in favor of the defendant, in an action to recover a contribution to the accident fund provided for by the industrial insurance act, tried to the court.

<p>Appeal from a judgment of the.superior court for Spokane county, Oswald, J., entered January 20, 1920, upon granting a nonsuit, in an action in tort.</p>

<p>Appeal from a judgment' of the superior court for Klickitat county, Darch, J.,' entered April 5, 1920, sustaining defendants’ demurrer to the plaintiff’s complaint.</p>

, entered June 1, 1920, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to secure' a reduction of taxes against tide lands.

<p>Appeal from a judgment of the superior court of Thurston county, Wilson, X, entered November 22,' 1920, upon findings in favor of the defendant, in an action to recover a contribution to the accident fund provided for by the industrial insurance act, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Truax, X, entered May 11, 1920, upon conviction of criminal syndicalism.</p>