Volume 117 — Washington Reports

<p>Application filed in the supreme court May 18, 1921, for a writ of mandamus to compel the state auditor to issue to relator a warrant for compensation under the soldiers’ bonus act.</p>

Application filed in the supreme court June 17, 1921, for a writ of mandamus to compel the superior court for San Juan county, Hardin, J., to allow a cost bill in proceedings had before the state board of law examiners.

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered November 3, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action on an indemnity policy.</p>

, entered April 6,1920, upon the verdict of a jury rendered in favor of the defendants, in an action on a promissory note.

<p>Contracts (4) — Mutuality. A contract whereby one party agrees to haul and warehouse fruit grown by the other party is void for lack of mutuality, where the grower is not by its terms bound to deliver any given quantity of fruit.</p> <p>Evidence (168) — Parol to Vary Writing — Prior or Contemporaneous Agreements. Where a written contract for the hauling and storage of fruit is void for want of mutuality, oral evidence is inadmissible to show that an agreement was made, at or before the time of the writing, that the grower bound himself to deliver all the fruit of the crop for a given year.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered October 28, 1920, upon findings in favor of the plaintiff, in an action on a promissory note, tried to the court.</p>

<p>Appeal from a. judgment of the superior court for Whitman county, McCroskey, J., entered January 21, 1921, upon sustaining a demurrer to the complaint, dismissing proceedings in prohate to ascertain and fix the amount of fees of attorneys employed by the heirs of an estate.</p>

order of the superior court for King county, Allen, J., entered May 22,1920, granting a new trial, after the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.

, entered May 13, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for breach of promise.

, entered November 30,1920, in favor of the defendants, dismissing certiorari proceedings to review a decision of the civil service commission of Seattle confirming the action of the chief of police in discharging a member of the police force.

<p>Assignments (23) — Set-off and Counterclaim (16) — Assigned Claims — Liabilities of Assignor to Third Persons. Under Rem. Code, § 191, providing that any debtor may plead a set-off against an assignee, if held by him against the original owner, a corporation to whom a debtor had loaned money less than the amount of his debt may credit the amount of the loan and offset the debt against a garnishment notwithstanding the bank’s claim had been assigned to a third person for collection.</p> <p>Garnishment (32-1) —Extent of Liability of Garnishee. A garnishor can acquire by the garnishment no greater rights in property than the debtor had at the time of garnishment.</p> <p>Assignments (24) —Equities and Defenses Between Parties — Estoppel. The rule that, after assignment of a non-negotiable chose in action, the assignor has no right to collect the chose, and if he does so, the money will be held as a trust fund belonging to the assignee, has no application except as between assignor and assignee.</p> <p>Garnishment (15-1) — Property Assigned for Collection. A fund collected by an assignor after assignment thereof to a third person for the purposes of collection, cannot be garnished as the property of the assignor, where the assignor was entitled to offset the amount and was not in fact indebted to the judgment debtor.</p> <p>Abatement and Revival (2) —Garnishment (38) —Another Action Pending — Nature of Action. The defense of another action pending, under Rem. & Bal. Code, §§ 259, 261, providing that an item of account already the basis of a pending suit cannot be interposed as a set-off or counterclaim in another action is not available in the case of a garnishee defendant brought into court to show its indebtedness to defendant; hence such garnishee, though it has an action pending against the principal defendant on the claim for which it is garnished, may set up the payment of such claim as a defense.</p>

<p>Trial (25) — Reception of Evidence — Number of Witnesses — Discretion of Court. It is not an abuse of discretion to limit the number of defendant’s witnesses to four or five in an action for divorce on the ground of cruelty, where the testimony of the witnesses excluded would not have been addressed to a direct refutation of plaintiff’s charges, but would have been confined to the fact that they had seen nothing wrong in the conduct of defendant.</p> <p>New Trial (8) — Prejudice of Judge — Trial De Novo. A divorce action being triable de novo on appeal, the fact that the trial judge may have been prejudiced against appellant affords no ground for awarding a new trial.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered June 24,1920, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.</p>

, entered June 10, 1921, in favor of the defendant, dismissing mandamus proceedings to compel the state auditor to pay a claim against the veterans’ compensation fund, after a hearing on the merits.

, entered June 26, 1920, in favor of an objecting property owner, reversing the action of the county board in levying an assessment of benefits for a road improvement, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Douglas county, Hill, J., entered October 23, 1920, upon findings in favor of the defendants, in an action of ejectment, tried to the court.</p>

<p>Municipal Corporations (356, 370) — Use of Streets — Obstructions— Rights op Abutting Owners — Injunction — Decree. An owner of residence property is not entitled to an injunction against tbe use of any part of the pavement in front of and abutting on his property, by a small electric truck, with rubber tires, where the pavement was not intended as a sidewalk, and the truck only made infrequent trips and did not interfere with use by pedestrians.</p> <p>Same. Where a railway company has constructed a common-user spur-track in an alley with the consent of the city under the power granted by Rem. Code, § 7507, subd. 9, a decree enjoining defendant from using that part of the track opposite plaintiff’s premises for the storage of cars, and restraining defendant from allowing cars being loaded from its warehouse to project in the rear of plaintiff’s premises longer than forty-eight hours, sufficiently protects the personal and property rights of plaintiff.</p>

<p>Partnership (28) — Liability Between Partners — Acquiring Adverse Interest — Fraud. • The fact that one partner in a firm operating a billiard-room had a secret agreement with the lessor of the premises to enter into partnership with him to go into the same business on termination of the lease, does not render him liable to his copartners in damages, where it is not shown that the acts were wrongful or fraudulent or to prevent a renewal of the lease, notwithstanding the assets of the partnership were sold to the lessor without knowledge of the facts.</p>

<p>Taxation (140) — Foreclosure Sale — Notice to Owner — Diligence. The statute (Rem. Code, § 9260) requiring the county treasurer to notify the record owner of real estate before its sale for delinquent taxes,, while not requiring him at all hazards and in all instances to search out and notify the record owner, is imperative that he make at least a reasonable effort to find and notify such owner.</p> <p>Same. The owner of real estate is entitled to have a tax deed thereon set aside, where the treasurer has made a sale for delinquent taxes without notifying such owner whose post office address was of record in the treasurer’s office, and was also capable of ascertainment from a tenant in possession of the premises; the fact that the owner himself may have been at fault not excusing the fault of the officer making the gale.</p>

<p>Trusts (38%) — Actions—Evidence—Burden of Proof. The burden of proving immaculate faith in transactions between a trustee and a cestui que trust rests upon the trustee, especially where the cestui que trust is of immature age, judgment and experience.</p> <p>Trusts (46, 47) — Enforcement of Trust — Right to Trust Funds —Fraud of Trustee. Undue influence and constructive fraud is shown supporting ani action by the widow of the cestui que trust to recover a trust estate, where it appears that a mother, who had been made trustee of an estate under the will of her deceased husband, whereby two-thirds was devised to the children, induced a child of no business experience or judgment, and who was under her influence, to convey his entire interest, amounting to practically $100,000, to her without other consideration than that of support and the prospect of sharing in the mother’s estate on her death.</p> <p>Same (49) — Actions to Enforce Trust — Limitation and Laches. A delay of four years in bringing action to set aside a conveyance procured by parent from child by means of constructive fraud and undue influence does not amount to laches when no injury has been caused by not beginning the action earlier.</p> <p>Wills (79-85) — Rights of Devisees — Deed to Effect Testator’s Intention — Consideration. Where a brother, without consideration, conveyed all his interest in a certain piece of property to his sister, in order to carry out an expressed intention of the deceased father to give that property to his daughter, such deed could not be after-wards set aside at suit of the administratrix of such brother.</p>

Application filed in the supreme court July 16, 1921, to require the superior court for King county, Dyke-man, J., to reduce the amount of supersedeas bonds.

<p>Highways (53, 58) — Collision—Contributory Negligence — Question for Jury. Whether the driver of an automobile is guilty of contributory negligence in failing to slacken speed when an automobile behind is attempting to pass at the same time another car is approaching from the opposite direction, is a question for the jury, where it appears that he was going at a slow rate of speed, and expected the other car to pass.</p> <p>Evidence (64) — Remoteness. In a personal injury action, testimony as to an injury to plaintiff’s back, though indefinite, is not subject to be stricken on the ground of remoteness.</p> <p>Appeal (454) — Review — Harmless Error — Facts Otherwise Established. In an action for damage's for injury to an automobile as the result of a collision, testimony .as to the cost of making the repairs, while incompetent, was not prejudicial where there was evidence as to the value of the car before and after the accident and this corresponded substantially to the amount of damage shown by the incompetent evidence.</p> <p>Evidence (86) — Admission—Offer of Compromise — Implied Recognition. An offer to pay the cost of repairs for injuries to an automobile, though not admissible in evidence as an offer of compromise, is admissible as impliedly recognizing the liability of the one making the offer.</p> <p>Highways (52, 59) — Collision—Contributory Negligence — Instructions. In an action for damages for collision between automobiles, it is proper to instruct that, though defendant may have been guilty of negligence, if plaintiff was aware of it in time so that by ordinary care he could have avoided the effect of such negligence and did not do so, plaintiff could not recover; and that in determining whether plaintiff was negligent the jury should take into consideration the circumstances surrounding him at the time and whether he acted as an ordinarily careful person would under the circumstances.</p> <p>Trial (118) —Misconduct of Jury — Separation. Separation of the jury allowed by the court after argument of counsel and instruction by the court, but before they had retired for deliberation was not error, in view of Rem. Code, § 349.</p>

<p>Appeal from an order of the superior court for Clarke county, Back, J., entered October 6,1920, granting a new trial, after the verdict of a jury rendered in favor of' the plaintiff, in an action for fraud.</p>

<p>Replevin (35) — Title and Right to Possession — Identity op Property — Evidence—Sufficiency. An action of replevin to recover a stolen automobile which had been sold to an innocent purchaser is sustained by proof that the factory and motor numbers on the car were the same as on the car which had been stolen; and by the further testimony of the thief that he had sold the car to the defendant.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered January 19,1921, in favor of the defendant, dismissing an action for damages, upon sustaining an objection to the introduction of testimony.</p>

<p>Appeal (389) — Review—Amendments Regabded as Made. Under Rem. Code, § 1752, requiring the appellate court to dispose of all causes upon the merits, disregarding tecbnicalities, and considering all amendments which could have been made as made, it will be presumed, in the absence of a statement of facts or bill of exceptions, that the evidence supports the findings and decree,- and that the complaint was amended to comply with the evidence.</p> <p>Same (145) — Review — Exceptions to Findings — Necessity. Where no exceptions were taken to findings of fact or conclusions of law, their insufficiency'cannot be raised on appeal.</p>

<p>Appeal from a judgment of tbe superior court for Thurston county, Wilson, J., entered June 26, 1920, upon granting a nonsuit, dismissing an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hurn, J., entered September 13,1920. upon findings in favor of the plaintiff, in garnishment proceedings, tried to the court.</p>

<p>Appeal from a judgment of tbe superior court for Thurston county, Wright, J., entered August 27, 1920, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for damages to an automobile struck by a train.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald J., entered September 21, 1920, upon findings in favor of an administratrix, in an action to vacate the appointment, tried to tbe court.</p>

<p>Appeal (418) — Review—Findings. While the' supreme court will hesitate to disturb findings on the facts, it is its duty to do so if convinced that the trial court was wrong.</p> <p>Brokers (19) — Compensation — Negotiations Direct With Principal. A broker cannot recover commissions upon procuring a customer who is not willing to pay the price fixed, where a sale is made to such customer at a lower price after the expiration, of the broker’s employment, if the principal in good faith dealt with the purchaser in ignorance of the fact that he was the customer whom the broker had produced.</p>

<p>Trial (150) — Findings—Duty to Make — Equitable Action. Where an action is of equitable cognizance, instead of one at law, no findings of fact and conclusions of law are necessary on the part of the trial court.</p> <p>Judgment (108) —Vacation—Grounds—View of Premises by-Judge. An inspection of mining premises by the trial judge in an equitable action to determine whether alleged annual assessment work had been done by a claimant is not ground for vacation of a judgment, when it was done upon notice to the opposing counsel.</p> <p>Same (121) — Vacation—Time fob Application. Under Rem. Code, § 465, providing that petition for vacation of a judgment must be filed “not later than after the discovery” of the ground therefor, a petition filed practically a year after knowledge of the alleged ground is not timely filed.</p>

<p>Bnxs and Notes (22) — Construction—Attorney’s Pees. A promissory note agreeing to payment of “- dollars” for attorney’s fees in case of suit for collection is an express stipulation for a reasonable amount as an attorney’s fee.</p> <p>Abatement and Revival (18, 19) — Garnishment (57) — Death of Party — Causes Surviving — Effect on Garnishment — Dissolution. The death of a defendant to an action after garnishment proceedings instituted against a debtor, who answers admitting liability to the principal defendant, does not dissolve the garnishment proceedings.</p>

, entered- September 13, 1920, in favor of the defendants, in a will contest, tried to the court. Affirmed in part and reversed in part.

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered June 1, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for fraud.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered October 11, 1920, upon granting a nonsuit, dismissing an action to establish a trust, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered December 20, 1920, upon findings in favor of the defendants, dismissing an action to compel county commissioners to repair a road.</p>

<p>Mortgages (45, 53) — Estates or Interests or Parties — Title From Purchaser at Tax Sale — Right to Foreclose. Where the title to mortgaged premises had passed from the mortgagor to the holder of a tax deed, who sold a portion of the premises to a third party and, in order to effect the conveyance, quit-claimed all the land back to the mortgagor for the purpose of having him convey to the third party, the mortgagee could not enforce his mortgage against the entire tract, inasmuch as the third party was the equitable owner of the portion bought and paid for by him, the mortgagor being merely a medium through which the transfer was made without title vesting in him as to such tract.</p>

<p>Brokers (3, 28) — Contract for Commissions — Termination of Employment — Cancellation of Earnest Money Contract. An agreement to pay a broker’s commission on a sale of real estate if completed under the terms and conditions of an earnest money contract, would not be defeated by the cancellation of the latter contract, where its terms are made part of the commission contract by reference and the canceled contract is still in existence and in evidence.</p> <p>Frauds, Statute of (20) — Sale of Real Property — Contract for Broker’s Commissions. Where a purchaser was put in possession of property with an understanding that he was to complete the contract, which was canceled by the death of a party, as soon as title could be perfected through the courts, the completion of an oral agreement in substantial compliance with the canceled written contract was sufficient under the statute of frauds.</p> <p>Husband and Wife (12) — Disabilities of Coverture — Contracts of Wife. Where a wife makes a contract to pay a broker’s commission on the sale of community property, she is liable therefor, in view of Rem. Code, §§ 5926, 5927, abolishing the civil disabilities of the wife.</p> <p>Brokers (13) — Compensation—Performance of Contract of Employment. A broker’s commission on the sale of real property cannot be defeated on the ground of nonperformance of the contract exactly as made, where the change consisted in the purchaser paying a larger proportion of cash than originally agreed and making a corresponding diminution in the amount of security given for the balance of the purchase price.</p>

<p>Husband and Wife (12) — Disabilities of Coverture — Debts Contracted by Wife. Under Rem. Code, § 5927, imposing liability upon a wife for her contracts to the same extent as if she were unmarried, she is liable upon her promise to pay a community debt.</p> <p>Frauds, Statute of (4) — Promise to Pay Debt — Collateral or Original Promise. In an action for services performed for defendant and her deceased husband, an allegation of the complaint that defendant “would pay and cause to be paid” the reasonable value of the services to be rendered does not set up a collateral promise but alleges a positive promise to pay, not the debt of another, but her own debt.</p> <p>Appeal (454) — Review—Harmless Error — Facts Otherwise Established. Refusal to strike the testimony of plaintiff as to the reasonable value of her own services is not prejudicial, where the same value is elicited by the testimony of two competent witnesses.</p>

<p>Bank? and Banking (14) — Validity of Loan — Authority of Office® — Notice of Fbaud. Where the president and executive officer of one bank pursued a policy of discounting commercial paper and opening a credit account thereon with another bank, on the representation that they were bona fide loans to solvent borrowers which his bank could not handle, the transaction was not on its face so out of the ordinary course of business as to put the discounting bank on inquiry as to any fraudulent intent of such officer to appropriate the money to his personal use; and hence the discounting bank cannot be held liable to the other bank for the defalcation of the money by the latter’s president.</p>

<p>Divorce (8) — Grounds—Inability to Live Together. Extravagance on the part of the wife and incompatibility in the temperament of the spouses are insufficient grounds for decreeing a divorce to a husband.</p> <p>Husband and Wife (105) — Separate Maintenance — Right to. Where a husband leaves a wife without sufficient cause, she is entitled to an allowance for separate maintenance if she is without adequate means of support.</p>

<p>Municipal Corporations (300) — Parties—Special Assessments —Foreclosure of Lien. The holder of local improvement bonds made payable to bearer may properly maintain an action to foreclose the lien of delinquent assessments out of which such bonds are made payable, where such bonds, properly executed, are produced in court and admitted in evidence, notwithstanding others may have some financial interest in them.</p> <p>Same (295) — Actions for Sale of Land — Defenses. The foreclosure of a lien represented by a certificate of delinquency for general taxes would not bar foreclosure proceedings for special assessments, in view of Rem. Code, § 7892-40, providing that one foreclosing for general taxes shall either pay in full all local assessments or may proceed to acquire title to the property subject to certain or all of the local assessments that are a lien thereon.</p> <p>Taxation (147, 161) — Foreclosure of Certificates — Conditions Precedent — Scope and Extent of Relief. Where a holder of a certificate of delinquency does not pay local assessments before foreclosing, he elects to take subject to the local assessments; and the court has power to grant only the statutory relief, which will be read into the decree, its terms going beyond it and barring all such claims being of no force.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered March 26, 1920, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for fraud.</p>

, entered December 28, 1920, upon findings in favor of the plaintiff, in an action to annul a marriage and for a division of property, tried to the court.

, entered January 14, 1921, upon the verdict of a jury rendered in favor of the defendants, in an action for damages to property through the bursting of a water meter.

<p>Eminent Domain (62) — Construction in Highway — Additional Servitude — Damages—Rights of Abutting Owners. The construction of an open ditch ten feet in width along a public highway for the purpose of draining private property is an additional servitude for which the abutting owners are entitled to compensation, under art. 1, § 16, of the constitution prohibiting the taking or damaging of private property without first making just compensation.</p> <p>On Rehearing.</p> <p>Drains (9) — Proceedings—Defenses—Effect of Injunction. A judgment enjoining a county from proceeding with the construction of a longitudinal drainage ditch along a highway on the ground that it would be an additional servitude necessitating condemnation does not preclude the county from proceeding to condemn a right of way for such ditch under the authority conferred by Laws 1921, ch. 160, § 3.</p>

Application filed in the supreme court August 16, 1921, for a writ of mandate to compel the state auditor to issue warrants in payment for bonds issued under the veterans’ compensation act.

, entered July 14, 1920, denying petitioner’s application for letters of administration, and appointing another as administrator of an estate, after a hearing before the court.

, entered August 12, 1920, in favor of the defendants, denying an application for a writ to review proceedings for the incorporation of a town, upon sustaining a motion to quash the writ.

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered October 8, 1920, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through a defective sidewalk.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered November 10, 1920, in favor of the plaintiff, in an action to recover a money judgment and to foreclose a chattel lien, tried to the court.</p>

<p>Criminal Law (183) — Evidence—Identity oe Accused. In a prosecution of foreign born persons for criminal syndicalism, confusion as to how their last names are spelled is immaterial, where their first names are sufficiently clear, and they were identified before the jury as the parties charged.</p> <p>Criminal Law (137) — Evidence — Hearsay — Declarations by Third Persons. Where testimony concerning the purposes, objects, principles, and teachings of the I. W. W. organization is limited to the acts and sayings of organizers or delegates at recognized meetings or places of assemblage of the organization, upon occasions sanctioned or directed by it, the evidence is not open to the objection of being hearsay.</p> <p>Same (182) — Evidence—Sueeiciency—Place oe Commission oe Oeeense and Venue. Prosecution for criminal syndicalism may properly be maintained in the county of defendant’s residence, though he was arrested while temporarily at work in another county.</p>

<p>New Trial (22) — Grounds—Sufficiency of Evidence. In an action on promissory notes where the only defense is want of consideration, it is error for the court to grant a new trial after verdict for plaintiff, where the evidence shows plaintiff is a holder in due course.</p> <p>Bills and Notes (97, 98) — Sales (127) — Actions—Defenses —Want of Consideration. Loss of goods after delivery by seller to carrier will not sustain a defense of want of consideration for notes given for the purchase price.</p> <p>Evidence (158) — To Vary Writing — Existence of Condition. In an action on notes given for the purchase price of goods, evidence that the seller orally agreed as a part of the order to make shipment in time for the Christmas trade was inadmissible as tending to vary the written agreement, and also because not accompanied by an offer to show that a loss was suffered thereby.</p>

<p>Telegraphs and Telephones (7) — Excessive Charges — Right to Recover — Voluntary Payment. Excess charges for telephone service, paid without protest, cannot be recovered by a subscriber where they were not made under a mistake of fact, nor induced by fraud, nor made under the exigencies of business which would sustain loss if the payments were not made.</p>

<p>Municipal Corporations (236) — Improvements—Assessments— Amount op Assessments — Limitations — Statutes — Construction. Laws 1915, ch. 168, § 1, providing that the cost of a local improvement shall “not exceed fifty per cent of the valuation of the real estate, exclusive of improvements thereon, within such district, according to the valuation last placed upon it for the purpose of general taxation,” is not a limitation to the assessed value of the property where that differs from the actual value; in view of Laws 1913, p. 438, § 1, which provides that “all property shall be assessed at not to exceed fifty per cent of its true and fair value in money.”</p> <p>Statutes (67) — Executive Construction. The construction of a statute by executive officers in a way other than its language plainly imports is not controlling on courts when called upon to determine its meaning.</p>

<p>Boundaries (10-1) —Parties (42) — Establishment oe Boundary — Bringing in New Parties — Interest in Controversy. In an action to determine tbe boundary line between two owners of quarter sections of land under the government survey, adjoining landowners who may or may not be affected by a relocation of the section corners are neither necessary nor proper parties.</p>

<p>Appeal from a judgment of the superior court for King county, Pemberton, J., entered November 17, 1920, upon findings in favor of the plaintiff, in an action for alienation of affections, tried to the court.</p>

, entered October 5, 1920, upon tbe verdict of a jury rendered in favor of tbe plaintiff, in an action for personal injuries sustained by an employee in a railway repair shop.

, entered December 23, 1920, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered November 20, 1920, upon granting a nonsuit, dismissing an action for equitable relief, tried to the court.</p>

<p>Taxation (107) — Personal Property — Lien—Transfer op Property — Statutes—Construction. Rem. Code, § 9235, providing that taxes assessed upon real and personal property cannot be affected in any way by sale or transfer of the property, must be construed as inapplicable with respect to personal property, in view of Rem. Code, § 9223a, which provides for the collection of delinquent personal property taxes by distraint of “sufficient goods and chattels belonging to the person charged with such taxes to pay the same.”</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered December 20, 1920, upon findings in favor of the plaintiff, in an action on trade acceptances, tried to the court.</p>

Appeals from a judgment of the superior court for King county, Allen, J., entered December 10, 1920, in favor of the defendants, in an action to enjoin the collection of a tax, tried to the court.

<p>Eminent Domain (156) — Appeal (406) — Review—Discretion— New Trial for Excessive Damages. The trial of condemnation proceedings by a city, including motions for a new trial, being governed, under Const., art. 1, § 16, and Rem. Code, § 7779, by the same rule as in other civil actions, the appellate court is confined to a determination whether the trial court abused its discretion in passing on the motion for a new trial.</p> <p>Appeal (72) — Affecting Substantial Right — Partial Judgment. Where a motion for a new trial is based upon three grounds, the action of the trial court in passing on but one of the grounds in favor of the movant does not preclude such movant from the right of appeal as to the other grounds.</p> <p>Same (373) — Review—Theory—Grounds of Motion for New Trial. On affirmance of an order granting a new trial, the appellate court will not discuss additional grounds urged on the motion which were not passed upon by the trial court, in order to avoid making such grounds the law of the case on the new trial.</p>

, entered December 6, 1920, revolking letters of administration issued to a surviving husband and appointing another as executor of the estate, after a hearing before the court.

Application filed in the supreme court August 1, 1921, for writs of piandamus and prohibition to compel the superior court for King county, Gilliam, J., to appoint relator as administrator of an estate and to prohibit further proceedings under a pretended accounting and settlement by the acting administrators.

<p>Witnesses (44) — Competency—Transaction With Person Since Deceased — Corporation as Party. Under Rem. Code, § 1211, excluding evidence by a party in interest of transactions had with a deceased person, where the personal representative of the latter sues or defends, an officer and stockholder of a corporation holding as lessee of the deceased cannot testify to an agreement whereby the deceased agreed to accept a lesser sum than that provided in the written lease as rental.</p> <p>Landlord and Tenant (12-1, 115) — Lease—Modification—Evidence — Sufficiency. A modification of the rental charge under a written lease is sufficiently shown by evidence that the lessee would have ceased to do business as a going concern and been forced into insolvency if the rent had not been reduced, resulting in the loss of defendant as a tenant, of which facts the landlord had knowledge; and that payments were made for a smaller rental by cheeks indorsed “rent paid in full' to date,” which werel accepted by the landlord without question until a disagreement arose between the parties over the terms, of a renewal of the lease.</p> <p>Accord and Satisfaction (4) — Landlord and Tenant (102)— Release of Liabilities — Reduction in Rental — Consideration — Mutual Promises. An agreement to reduce the rent is supported by a valid consideration where a written contract of lease is modified by the substitution of an oral agreement for a lesser rental, and there were mutual promises made by one to pay, and by the other to accept, a lesser sum for the purpose of continuing the relation, which would otherwise be abrogated by reason of the inability of the lessee to pay the rental as originally agreed.</p> <p>Frauds, Statute of (51) — Operation—Contracts Performed. An oral contract modifying the terms of a written lease, whose term extends longer than one year, cannot be repudiated by either party after it has become an executed contract by performance.</p>

<p>Mines, and Minerals — Lease—Royalties—Actions—Burden op Proof. In a suit for minimum royalties under a coal mining lease, for a term of years unless the coal should be sooner exhausted or it should be ascertained that merchantable coal sufficient in quantity to be profitably mined did not exist, the burden of proof is upon the lessees to show that reasonable search and exploration of the lands had been made for the purpose of determining the essential conditions.</p> <p>Appeal (456) — Harmless Error — Cure by Instructions — Taking Papers to Jury Room. The fact that the jury took to the jury room a complaint containing two causes of action, between which the plaintiffs had been compelled to elect, would not constitute prejudicial error, where the court instructed the jury to disregard the cause of action which had gone out of the case by reason of the election.</p> <p>Trial (88) — Instructions—Confused or Misleading Instructions. An instruction that a mining lease is so voluminous that it is only necessary to direct the jury’s attention to a few of its provisions which are directly involved was not misleading, where many of its features were not germane to the issues, and the lease was in evidence and the jury was charged to decide the issues on all the evidence in the ease.</p> <p>Mines and Minerals — Lease—Royalties—Action for Breach— Instructions. In an action for royalties under a mining lease, where there was evidence that one of the plaintiffs had ordered employees of the lessee off the lands after the suit was commenced, an instruction that the refusal to permit the defendant to prospect or occupy the lands would defeat the right of plaintiffs to recover royalties after that date, was not prejudicial, the instruction being made in the interest of defendant’s rights.</p> <p>Election of Remedies (3) — Acts Constituting — Pleading— Causes of Action — Damages for Breach of Mining Lease. In an action for mining royalties, a requested instruction that plaintiffs could not recover therefor subsequent to the date of commencement of the action since they had elected to treat the contract as breached on that date, was properly refused where an amended complaint was filed nearly two years later claiming royalties up to the time of its filing.</p> <p>Appeal (464) — Harmless Error — Instructions—Refusal of Requests. Refusal of requested instructions is not prejudicial when they are substantially' covered by those given, or are inappropriate under the rule as to the burden of proof.</p> <p>Judgment (54) — Notwithstanding Verdict. A motion for judgment non obstante veredicto, and in the alternative for a new trial was properly refused where the evidence within the issues was such that the jury could readily have decided in favor of either plaintiffs or defendant.</p>

, entered September 6, 1921, adjudging a public use and necessity in condemnation proceedings, after a bearing before tbe court.

, entered December 31, 1920, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through a defective sidewalk.

<p>Waters and Water Courses (78) — Water Companies — Franchise —Location and Security op Mains — Powers of Public Service Commission — Evidence—Sufficiency. Assuming that the state department of public works has jurisdiction to interfere with water mains laid in city streets in accordance with a franchise, no occasion therefor is shown by evidence that a city desiring to lay a hard surface pavement in one of its streets, demanded that the water company replace its wooden by iron mains or shift the mains to a parking strip, it appearing that the principal leakages had been from a main whose use had been discontinued, or from service pipes whose system of connections had been so altered as to diminish leakage to a negligible quantity, and that in the event of leakage the company could take care of it without serious interference with the hard surface pavement.</p>

<p>Divorce (49) — Decree—Action to Vacate — Fraud—Proceedings. A petition to set aside a judgment on the ground it was procured by fraud is properly filed in the original cause, under the provisions of Rem. Code, §§ 466-469.</p> <p>Divorce (47, 47-1) — Vacation—Jurisdiction—Fraud—Petition— Proof of Allegations — Waiver. On a petition by a wife to set aside a divorce decree in favor of the husband on the ground it was procured by fraud, to which the husband demurred on the ground it did not state facts sufficient, such demurrer constituted a waiver of the constructive denial afforded by Rem. Code, § 468, and an admission on his part of the truth of the allegations of the petition, warranting the action of the court in setting aside the decree on his refusal to plead further.</p>

<p>Prohibition (15, 20, 37) — To Officers — Want or Excess of Jurisdiction — Return or Answer — Effect of Demurrer. Prohibition lies against the director of public works where he is threatening, without or in excess of his jurisdiction, to accept insurance policies issued by an automobile insurance exchange which has no articles of incorporation and is not licensed to do business in the state, in violation of Laws 1921, p. 341, § 5, which requires for hire owners or operators to furnish security by an insurance company licensed to write liability insurance in the state of Washington, or a surety bond of a company licensed to write surety bonds in the state.</p>

<p>Vendor and Purchaser (15, 18) — Fraud—Misrepresentations. Where a party upon a sale or exchange of property undertakes to show his land to a prospective purchaser, he is bound to show the land he owns and its boundaries, if required, under penalty of responding in damages or to an action in rescission; and the vendor cannot evade responsibility on the score of being ignorant of the exact location of his own land.</p> <p>Husband and Wife (42) — Actions—Parties. An action by the husband for rescission of an exchange of property is not demurrable for defect of parties plaintiff because the wife was.not joined, where the complaint alleged ownership of the property by the husband in his own right, such allegation being sufficient in the absence o£ a motion to make more definite and certain.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered July 15, 1920, upon findings in favor of tbe defendant, in an action on contract, tried to tbe court.</p>

, entered May 2, 1921, affirming on- certiorari an order of the public service commission declaring the relator to be a common carrier, etc., after a hearing before the court.

<p>Bailment (3) — Loss of Goods — Liability of Bailee. One accepting the control of premises in which household goods and other personal property is temporarily stored becomes a gratuitous bailee of the contents of the house, and as such chargeable with the use of reasonable care.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered September 14, 1920, upon findings in favor of the petitioner, granting an allowance to a surviving wife pending administration of an estate, after a hearing to the court.</p>

<p>Appeal (288) — Record—Statement of Pacts' — Extension of Time. Where a statement of facts is not served and filed with the clerk of the proper court within the ninety-day period fixed by statute, no excuse will suffice to extend the time for such filing and service beyond the statutory period.</p> <p>Same (287) — Time fob. Piling — Objections to Failure to File— Estoppel. The duty of preparing, serving and filing a proposed statement of facts resting solely on appellant without any duty incumbent on respondent, the latter would not be estopped to object at a later period that the statement was not filed in time, by reason of the fact that he had accepted service by appellant and had appeared without objection and proposed amendments to the statement at the time of its settlement before the court.</p>

<p>Application filed in the supreme court October 19, 1921, for a writ of mandamus to compel the state auditor to issue a salary warrant to relator.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 30, 1920, in favor of the plaintiff, in an action for equitable relief, tried to the court.</p>

Application filed in the supreme court October 4, 1921, for a writ of mandamus to compel the superior court for Spokane county, Blake, J., to proceed with the trial of a cause.

<p>Arbitration and Award (16) — Conclusiveness—Evidence—Admissibility. Where an award has been made by arbitrators, the testimony of an arbitrator, in a subsequent action between the parties, is inadmissible for the purpose of varying the award with respect to an item which was a proper subject of the arbitration. ■</p>

, entered September 12, 1921, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages through the removal of lateral support.

<p>Street Railroads (9-1) — Regulation—Extension of Car Line— Order of Public Service Commission — Arbitrariness. An order of the public service commission directing a street railway company to extend its line a distance of 900 feet is arbitrary and unreasonable, where its only purpose is to serve a lumber mill in the carriage of lumber cars, there being no other property to serve than the one mill, and that the cost of extension and operation for the mill service would cause an annual loss to the railway company.</p>

<p>Carriers (3-2) — Courts (35) — Previous Decisions as Controlling — Overcharges. Where, on a prior appeal, the law of the case has been decided as involving the measure of recovery for a violation by a carrier of the long and short haul provisions of the statute, the carrier cannot interpose an objection, in an action to recover upon an award made by the public service commission, that the shipper’s case is one based. upon discriminatory charges, thereby requiring a different measure of recovery.</p> <p>Appeal (473, 475) — Review—Former Decision as Law of Case — * Questions Concluded. Where a decision on appeal, determining the proper measure of recovery by a shipper against a carrier, by necessary implication found with the public service commission in awarding refund for certain shipments, and the evidence before the court on a subsequent appeal is the same as on the prior appeal, there is nothing in the record to overcome the priina facie case as found by the commission.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered September 11, 1920, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

Corrigan, Judge pro tempore, entered November 7, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.

<p>Appeal (418) — Review—Findings. In an action for commissions on the sale of trucks, where anestions of fact are alone involved, the findings of the trial court on conflicting evidence will not be disturbed on appeal, where the evidence does not clearly preponderate against the findings.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered July 15, 1920, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

Appeals from a judgment of the superior court for King county, Hall, J., entered February 25,1921, upon the verdict of a jury rendered in favor of the plaintiff for $7,500 for personal injuries sustained by a passenger through a collision between a street car and an auto truck.

Application filed in the supreme court June 18,1921, for a writ of certiorari to review an order of the superior court for Lewis county, Wilson, J., entered June 10, 1921,. allowing defendant to bring in an additional party.

, entered April 28,1921, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained in a collision.

, entered April 20, 1921, upon findings in favor of the plaintiffs, in an action for personal injuries sustained through collision with an automobile.

<p>Municipal Corporations (379, 392) — Streets—Collision at Crossing — Mutual Rights in Meeting and Crossing — Ordinances—Instructions. Under a city ordinance providing that drivers approaching street intersections shall look out for and give right of way to vehicles on their right simultaneously approaching a given point, where two vehicles simultaneously approach the intersection of three streets the car coming from the right has a right of way over the other.</p> <p>Appeal (464) — Harmless Error — Refusal of Requested Instructions. The refusal of proper requested instructions is not error when their substance is adequately expressed in the instructions given.</p> <p>Witnesses (88-90) — Redirect Examination — Scope and Extent— Explanation of Testimony on Cross-Examination. Where defendant’s witness on cross-examination had denied making a certain statement to plaintiff’s counsel, and the denial had been accepted, it was not error to refuse defendant the privilege of calling out the entire conversation by redirect examination of his witness.</p> <p>Damages (124, 126) — Assessment—Injury to Person — Instructions. Where there is some evidence of future pain and suffering or impairment of the faculties of plaintiff in a personal injury action, an instruction on the rule for assessing damages which states the jury might allow compensation for pain and suffering which is reasonably certain to endure in the future was proper.</p>

<p>Electricity (1) — Regulation of Rates — Reasonableness—Evidence to Sustain Increase — Sufficiency. Where complaint is not made against a new tariff of rates by a public service corporation until after it had become effective, the burden of proof rests upon the complainant to show that the rates are unreasonable.</p> <p>Same (1) — Rates—Reasonableness—Evidence. A tariff rate for electric power showing a net earning of 4.12 per cent on the capital invested in the service of providing power is not unreasonable, where the evidence shows the value of the service is worth its cost to the consumer.</p> <p>Same. The rule that a public service corporation may be compelled to furnish certain users service at a loss where its total business produces a fair return on the investment does not apply where there is no evidence of any adequate net earning on the entire business.</p> <p>Same. The fact that diking districts budgets for expenses of the ensuing year had been made without anticipating a raise in electric power rates would not constitute a showing of imposition of rates beyond the consumer’s ability to pay, since such ability rests on their actual financial resources and not upon an appropriation of funds to meet expenses.</p> <p>Same. The question of whether rates for electric power charged by a corporation are just, fair, reasonable and- sufficient is not dependent upon the facts that the consumers made contributions toward the construction of the power plant, and that the corporation solicited the business of the consumers.</p>

Appeal by plaintiff from a judgment of the superior court for King county, Ronald, J., entered June 11, 1921, upon findings favorable to the plaintiff, in an action on contract, tried to the court.

• Appeal from a judgment of the superior court for Pierce county, Card, J., entered March 30, 1921, in favor of the plaintiffs, in an action of unlawful detainer, tried to the court.

, entered February 21, 1921, upon findings in favor of the defendants, dismissing an action to recover a broker’s commissions, tried to the court.

<p>Divorce (104) — Custody of Child — Modification of Decree — Evidence — Fitness of Parent. On an application for a modification of a divorce decree awarding the custody of a minor child, evidence on the subject of the competency of the mother, as custodian, relating to a period preceding the decree of divorce, is inadmissible.</p> <p>Same (104) — Custody op Child — Modification of Decree — Changed Conditions — Discretion of Court. An order awarding the custody of a minor child to each of divorced parents for alternate periods of six months, subsequently changed on the child’s becoming of school age by awarding the entire custody to the mother, should he modified, where each parent is fit and able to care for the child, to permit the father to have the custody during any substantial period when he is not in school, not exceeding six months in any one year.</p>

, entered December 23, 1920, upon findings in favor of. the plaintiff, in an action to recover an amount paid under protest on redemption from a sheriff’s sale of real property, tried to the court.

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J., entered April 9, 1921, reversing on certiorari an order of the public service commission.</p>

<p>Appeal from a judgment of the superior court for Lems county, Eeynolds, J., entered January 24, 1921, upon findings in favor of the plaintiffs, in an action to foreclose an agister’s lien, tried to the court.</p>

, entered May 6, 1920, upon findings in favor of tbe plaintiff, in an action to enforce a materialman’s lien, tried to tbe court.

, entered January 27, 1921, affirming an order of the public service commission directing the payment of overcharges to a shipper of logs.

, entered February 5, 1921, upon findings in favor of the defendant, dismissing an action on contract, tried to the court.

<p>Fraudulent Conveyances (95, 97) — Deeds—Intent of Grantor— Want of Consideration — Evidence—Sufficiency. A deed by a husband of all his separate property to his brother at a time when his marital relations were strained will, on granting a decree of divorce to the wife, be set aside for the purpose of awarding the wife a portion thereof, though no actual fraud on the part of the grantee is shown, where it appears the property was greatly in excess of any sum that might be due the brother; that any claim of the brother for loans was in fact outlawed; that it does not clearly appear that there was ever more than a constructive delivery of the deed; and that it was not recorded by the grantee until the expiration of a year following its execution, and but one week prior to the commencement of the divorce action (Fullerton, Holcomb, and Mackintosh, JJ., dissent).</p>

<p>Vendos and Purchaser (60) — Rescission by Purchaser — Fraud —Evidence—Sufficiency. Rescission of an exchange of properties! is properly decreed where the evidence shows that by collusion between one of the parties and the broker representing both parties the value of one of the properties which was situated in another county was grossly misrepresented by its owner and the broker.</p> <p>Same (74) — Fraud—Action for Rescission — Judgment—Extent of Relief. In rescinding an exchange of properties on the ground of misrepresentation by one of the grantors and a broker acting jointly for both grantors, the refusal of the court to allow credit to the defendants for sums retained by the broker as commission and expense money was proper.</p>

, entered May 20, 1921, reversing on certiorari an order of the directors of a school district discharging a teacher from employ- . ment.

<p>New Trial (22) — Grounds—Verdict Contrary to Evidence. A new trial was properly denied in an action for personal injuries, where there was evidence supporting plaintiff’s theory of the case, although the eye-witnesses to the accident were few and the physical facts preponderate strongly in defendant’s favor.</p> <p>Evidence (197) — Opinion Evidence — Bodily Appearance or Condition. In an action to recover damages for being run into by a motor truck, it is error to allow a doctor, who had examined plaintiff after the accident, to testify she had been first struck at a discolored place on her back, where the evidence shows there were a number of other discolorations and bruises upon the body.</p> <p>Trial (93) — Instructions—Application to Case — Pleading and Proof. Where the acts of negligence charged in the complaint in an action for damages by a pedestrian struck by a motor truck were that the vehicle was operated at excessive speed and without giving warning, it was error for the trial court in its instruction to inject the issue of insufficient brakes, where it was nowhere raised in the pleadings or proof.</p> <p>Municipal Corporations (380, 392) — Streets—Collision With Auto Truck — Violation of Ordinance — Instructions. Where an action for damages was based on the negligence of defendant in striking with a motor truck a pedestrian in the street who had alighted from a street car, it was not error for the court to refuse an instruction based on a city ordinance prohibiting pedestrians from stepping into a street at a point between street intersections.</p> <p>Same (381, 390) — Collision—Violation of Ordinance — Rate of Speed — Question for Jury. The refusal of the court to take the issue of speed of a motor vehicle from the jury in a damage case was not error, where there was evidence that the rate of speed violated both a city ordinance limiting speed at street crossings and also a state statute (Laws 1915, p. 394, § 23) prohibiting the driving of a motor car at a greater rate than is reasonable and proper, having a regard for the traffic on the highway.</p>

<p>Corporations (49) — Stock—Issuance of Certificate — Persons Entitled and Remedies — Conversion. Where a receipt for payment of a subscription to capital stock recited the stock was “to be issued as soon as stock book has been opened,” it was, in legal effect, a promise given and accepted that, as soon as the stock book was opened, a certificate would be issued, and in the absence of a demand and refusal of a certificate at any subsequent date, no action against the corporation for conversion of the stock will lie.</p>

<p>Application filed in thé supreme court November 3, 1921, for a writ of mandamus to compel the superior court for King county, Ronald, J., to supply relator a transcript on appeal.</p>

, entered February 24,-1920, upon findings in favor of the plaintiffs, in an action to establish a boundary line, tried to the court.

<p>Subscriptions (3) — Contract — Liability — Right to Rescind Agreement. Subscribers to a Chautauqua course of entertainment to be given in their town as part of a circuit have no right to revoke the contract, since the contract in suit, with like contracts, forms the consideration for the overhead cost of the undertaking and the expense of employing lecturers and entertainers for the course.</p>

<p>Vendor and Purchaser (53) — Rescission by Vendor — Election to Rescind and Notice. Under a contract for the sale of land, which provided that there should be no forfeiture unless ten days’ notice were given the purchaser, a failure to give such notice and the giving instead one abrogating the contract, entitled the purchaser to rescind and sue for damages.</p> <p>Same (86) — Contract—Performance—Title of Vendor — Waiver of Defects and Objections. A vendor may contract to sell land he does not own, it being incumbent on him to have title at the contractual date of delivery, and knowledge by purchaser of the vendor’s want of title does not constitute either waiver or acquiescence.</p> <p>Same (94) — Performance of Contract — Payment of Pubchasb Money — Tender. Failure of a purchaser under a contract for the conveyance of land to tender the price or offer to perform on the date stipulated for performance would not place him in default, where he has knowledge the vendor is not in a position to convey the lands.</p> <p>Same (161) — Remedies of Purchaser — Recovery of Purchase Money — Partial Failure of Title — Rescission. Where a contract for the conveyance of land has been rescinded by the vendor, the purchaser is entitled to abandon the contract and recover the portion of the purchase price paid thereon.</p> <p>Same (171) — Remedies op Purchaser — Recovery of Purchase Money — Defenses—Tender of Performance. Where a vendor, under a contract to convey, has declared a forfeiture or renunciation of the contract, and the purchaser has relied thereon and begun an action for damages, the vendor cannot reinstate the contract by an offer to perform.</p> <p>Same (64) — Rescission by Purchaser — Estoppel or Waiver. An allegation in a complaint by a purchaser for damages for failure of a vendor to perform a contract to convey that he “would now be willing to perform his contract but for the fact the defendants have placed it out of their power to perform,” would not constitute a waiver of his right to rescind.</p> <p>Same (182) — Remedies of Purchaser — Breach of Contract— Damages. In an action for damages for failure to convey a quantity of land, recovery is limited to a return of the money paid, with legal interest, in the absence of evidence sufficient to show damages by way of loss of sales and contemplated profits.</p> <p>Tolman, Mackintosh, and Bridges, JJ., dissent.</p>

<p>Homestead (12) — Property Constituting — Title to Property— Leasehold Interest. A portable bungalow on leased land, in which one resides, may be claimed as a homestead under the statute defining a homestead as the “dwelling house in which the claimant resides and the land upon which the same is situated.”</p> <p>Exemptions (10-18) —Property Exempt — Necessaries. Rem. ■Code, § 564, providing that no property shall be exempt from execution for actual necessaries, not exceeding fifty dollars in value, furnished to the defendant or his family within sixty days preceding the beginning of an action to recover therefor, even if conceded as applicable to a homestead exemption, would not apply where the evidence shows the necessaries were not furnished within the sixty-day period.</p>

, entered January 6, 1921, upon the verdict of a jury rendered in favor of the defendant, in an action on a promissory note.

, entered October 22, 1920, upon findings in favor of the plaintiffs, in an action for an injunction, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Griffiths, J., entered March 26, 1921, in favor of the plaintiffs, in an action to foreclose a mortgage, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Griffiths, J., entered April 14,1921, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a pedestrian struck by an automobile.</p>

<p>Appeal from a judgment of the superior court for King county, Griffiths, J., entered April 9, 1921, adjudging the defendant guilty of contempt, after a hearing on affidavits.</p>

, entered April 24, 1920, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for fraud.

<p>Appeal from a judgment of the superior court for King county, French, J., entered April 8,1921, in favor of the plaintiff, in an action on account, tried to the court.</p>

<p>Liens (2) — Statutory Liens — Right to Lien — Consent oe Owner — Statutes. One repairing an automobile at the request of a gratuitous bailee of the car is not entitled to a lien for services as against the owner, under Laws 1917, p. 229, § 1, which authorizes a lien for labor performed or materials furnished in the repair of a chattel “at the request of the owner.”</p>

<p>Executors and Administrators (159-1) — Accounting—Disbursements — Last Sickness — Provisions of Will. A will providing that a named beneficiary should take nothing thereunder, until he should execute a release and acquittance of all demands which he may have against the testator or his estate, did not contemplate a claim based on the fact that such beneficiary had become responsible for the expenses of the testator’s last sickness.</p> <p>Same (45) — Management of Estate — Personal Profit — Possession of Property. Where, under the terms of a will and by agreement of the beneficiaries, an administrator, who had been given a life estate in a tract of land, had gone into possession and personally profited thereby, such fact could not be urged as an objection against his final account.</p> <p>Same (163). — Settlement and Accounting — Compensation — Waiver of Right. The heirs of an executor who had died pending administration cannot complain there was no allowance for services of such deceased executor in the final account, where no account had been filed on behalf of the deceased executor and the report made no provision for compensation to either executor or administrators.</p> <p>Wills (85) — Rights of Devisee — Claims—Construction of Will —Duty to Cancel. An objection that an administrator with the will annexed had not cancelled every claim which he had against the estate as required by a bequest in his favor is without merit, where the record shows he never presented any claim against the estate, and that he had filed a proper acquittance with the deceased executor of the estate.</p> <p>Executors and Administrators (158) — Settlement and Accounting — Use and Occupation of Premises. An objection to the final account of an administrator on the ground that the expenses of administration were not a pro rata charge against the devisees, legatees and beneficiaries is not well taken, where the will expressly-provided the charges should be prorated, and such charges were necessarily incurred and paid by the administrator, and were less in amount than if the fees due the administrators, but not charged, had been included.</p>

, entered January 4, 1921, upon findings in favor of the defendants, in an action for services rendered, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered July 28, 1920, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J-, entered November 2, 1919, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for an injunction and damages.</p>

<p>Petition filed, in the supreme court August 3, 1921, for leave to intervene in an action.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered January 29, 1920, upon findings in favor of the plaintiff, in an action for equitable relief, tried to the court.</p>