Volume 118 — Washington Reports

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered February 21, 1921, denying an application for a writ of habeas corpus to secure the custody of a child.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered May 14, 1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

Cross-appeals from a judgment of the superior court for King county, Ralston, J., entered April 29, 1921, upon findings in favor of the plaintiff, in an action in ejectment, tried to the court.

<p>Principal and Agent (9, 36%, 42) — Relation—Authority of Agent — Rights and Liabilities as to Third Persons — Evidence-Sufficiency. One not bound on the face of a written obligation cannot be chargeable with liability thereon in the absence of a showing that it was executed for and on his behalf by some person authorized by him to so execute it.</p>

<p>Mines and Minerals (20) — Mechanics’ Liens (24) — Right to Lien — Ownership and Consent by Owner — Statutes. One employed to construct a tunnel in a mining claim cannot enforce a lien for his labor, as authorized by Rem. Code, § 1129, where the tunnel is driven upon the property, of another than his employer.</p> <p>Mechanics’ Liens (26) — Consent op Owner — Lessee as Agent op Owner. Conceding, without deciding, that the lessee of a mining claim is the statutory agent of the owner, the lessee would have no authority under the mechanics’ lien law to procure one to furnish, labor or material on the land of a stranger.</p> <p>Same (24, 28) — Consent op Owner — Contract With Lessee— Estoppel. The owner of a mining claim is not estopped to deny the right of one employed by the lessee to drive a tunnel to assert a mechanics’ lien on the property, though having knowledge the work was in progress, where the owner did not know at what angle or in what direction it would be constructed, nor that it would be driven on the land of another.</p>

<p>Covenants (11) — Running With Land — Water Contract — Construction. Where owners of land on which springs were located, who had collected and stored the water for domestic use, entered into an agreement with the owner of lands over which the waters of the springs had been accustomed to flow, stipulating that the latter should be permitted to tap their pipe and take one-third of the water in consideration of his grant to such appropriators of all his right, title and interest in the waters of such springs, the agreement did not constitute a covenant running with the land.</p> <p>Waters and Water Courses (67, 68) — Conveyances—Water Contract — Rights and Liabilities oe Parties. The owner, of lands who has a water contract providing for service of water to himself is under no obligation to provide water service to purchasers of subdivisions of his land, where the contracts do not so provide; nor is a purchaser of a tract entitled to the use of the pipe line without the owner’s consent, where the pipe was laid after sale to such purchaser in such a manner as to clearly indicate the owner’s dominion and control over it.</p>

<p>Officers (18) — Extent of Term — Statutes — Construction. Rem. 1915 Code, § 4910-10, and Laws 1919, p. 475, § 23, providing for the appointment of voting machine custodians temporarily for election purposes, and for the appointment of a “permanent” employee as custodian in case any county or city shall own two hundred or more machines, does not contemplate the appointment of a custodian to hold for life or during good behavior, such term being used solely to distinguish between the two classes of custodians, and hence such “permanent” custodian is removable at the pleasure of the appointing power.</p>

<p>Death (5, 35) — Injuries Causing Death — Right of Action— Measure oe Recovery — Statutes—Construction. Where a minor child received personal injuries from which she later died, leaving parents dependent upon her for support, a right of action survives to her personal representative, under Rem. Code, § 194, to prosecute an action in behalf of such parents, the measure of recovery being the amount which the minor would have recovered for the injury had she lived, to be computed from the time of injury to the date of death.</p> <p>Same (14) — Right of Action — Concurrent Actions — Fob Whose Benefit. An action by an administrator for the wrongful death of a minor may be prosecuted for the benefit of the parent or parents, under Rem. Code, § 194, independently of, and concurrently with, actions for support, under Id., § 183, as amended by Laws 1917, ch. 123, and for loss of services under Id., § 184.</p>

<p>Divorce (94) — Alimony and Suit Money Pending Appeal— Jurisdiction. Pending appeal in a divorce action, tbe superior court retains jurisdiction to order the husband to pay money to the wife to apply on the cost of her appeal, and also for clothing, medical attendance and a weekly allowance.</p>

<p>Municipal Corporations (319) — Health Regulations — Ordinance — Powers op City. An ordinance of a city of the third class for the disposal of garbage is a valid exercise of municipal power under Const., art. 11, § 11, giving any city power to make such local sanitary regulations as are not in conflict with general laws, and Rem. Code, § 7671-14, subd. (r) especially authorizing cities of the third class to enact and enforce local, police, sanitary and other regulations.</p> <p>Same (44) — Ordinances—Validity—Franchise. An ordinance providing for entering into a contract with the most satisfactory bidder for the disposal of garbage is not one granting a franchise, since no right or privilege is thereby granted.</p> <p>Same (99) — Health Regulations — Ordinance — Validity — Award op Contract to Bidder. Where an ordinance authorizing the letting of a contract for the disposal of garbage to the highest bidder means to such person as the city council shall deem best qualified and equipped for the performance of the contract who would perform it for the lowest charge to the people served, and where there is ho showing of its being productive of revenue, it cannot be held invalid.</p> <p>■ Same (45) — Ordinance—Validity—Subject and Title. The title of an ordinance reciting that it is one for the letting of an exclusive contract for the disposal of garbage and rubbish and providing certain penalties, is broad enough to cover a section requiring any person disposing of his own garbage at any designated dump to first pay to the city clerk a fee of one dollar and a half for each load.</p> <p>Same (45). The objection that the penalty of an ordinance is not covered by its title cannot be raised by one who is not charged with a violation of the ordinance.</p>

, entered December 29,1920, upon findings in favor of the plaintiffs, in consolidated actions for equitable relief, tried to tbe court.

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

<p>New Trial (34) — Grounds—Newly Discovered Evidence — Discretion. The denial of a motion for a new trial cannot be said to be an abuse of the court’s discretion in such matters where the affidavits for and against are flatly contradictory, and when one of the affidavits for a new trial was that of a person who was admittedly a wrongdoer in the subject-matter of the action.</p>

, entered December 11,1920, upon verdicts of a jury rendered in favor of tbe plaintiffs, in consolidated actions for personal injuries sustained by pedestrians struck by an automobile.

<p>Appeal from a judgment of the superior court for Franklin county, Truax, J., entered March 29, 1921, in favor of the.plaintiff, upon overruling a demurrer to the petition, in an action in the nature of quo warranto.</p>

<p>Divorce (36) — Grounds—Evidence—Sufficiency. A decree of divorce awarded a wife, is supported by evidence that the husband maintained a room in an apartment house owned by him and a former wife, using a kitchen in common with her, and that he had treated plaintiff with some physical violence and called her vile names.</p> <p>Same (80) — Division of Property — Excessive Award. Where the court had made a fair division of the real property of spouses on decreeing a divorce, an order directing the cancellation of a $750 note given by plaintiff to defendant prior to their marriage for money borrowed by her to make a property settlement with her former husband from whom she was divorced was excessive, and should be modified by striking the money judgment in favor of plaintiff.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Back, J., entered December 22, 1920, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Corporations (178) — Contracts—Notice of Authority of Officer to Person Dealing With Corporation. Where a debtor gives a check executed in the name of a corporation, by himself as manager, to his individual creditor in payment of a debt, such creditor, having parted with nothing of value in reliance upon any act of the corporation, is chargeable with notice that the manager had no authority to pay his private debt, and cannot defeat action for recovery of the amount on the theory of being an innocent third party.</p> <p>Assignments (15) — Equitable Assignments — Loss or Injury to Debtor. Although a corporation is indebted to its general manager, the execution of a check of the corporation by himself as manager in payment of his private debt does not constitute an equitable assignment, where such check is only part of an entire transaction whereby the corporation is deprived of an amount in excess of its indebtedness to him.</p> <p>Corporations (165) — Representation—Ratification. Where a corporation repudiates the act of its general manager in executing a corporate note in payment of a private debt as soon as it has knowledge of the act, it cannot be said to have ratified the act.</p> <p>Same (165). The right of action of a corporation against a person to whom its agent had wrongfully paid corporate money is not waived by any election of remedies against such agent in an effort to recover the money.</p> <p>Husband and Wife (84) — Community Property — Liability of Wife — Implied Contract. Where money of a corporation is applied by an agent to the wrongful payment of his private debt to a married woman, her liability for the repayment of the money to the corporation arises on an implied contract for money had and received, and not for a tort, and the community of husband and wife is liable therefor.</p>

<p>Appeal (418) — Review—Findings. Where the evidence does not clearly preponderate against a finding of the trial court, the finding will be acquiesced in by the supreme court on appeal.</p> <p>Master and Servant (17) — Work and Labor (15) — Action for Wages — Contract—-Duration of Term — Amount of Recovery. Under a contract of employment for an indefinite period, to be compensated by a stated salary per month and in addition by a certain percentage of the profits, where the employee is compelled to abandon the employment by reason of sickness, he is entitled to a pro rata share of the profits of the business during the period he actually served.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Davidson, J., entered June 6, 1921, upon a trial and conviction of the unlawful possession of intoxicating liquor.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Davidson, J., entered December 20, 1920, upon a trial and conviction of assault in the first degree.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Truax, J., entered April 4,1921, upon sustaining a demurrer to the complaint, dismissing an action to compel the acceptance of a tax.</p>

<p>Appeal from a judgment of the superior court for King' county, Hall, J., entered June 24, 1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

<p>Appeal from an order of the superior court for Clarke county, Simpson, J., entered April 26, 1921, allowing a claim against a decedent’s estate.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered March 12, 1921, upon findings in favor of the defendants, in an action in ejectment, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ralston, J., entered July 15, 1920, in favor of the plaintiffs, in an action on assigned accounts, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Truax, J., entered March 4, 1921, in favor of the plaintiffs, in an action to quiet title, tried to the court.</p>

<p>Appeal (464) — Harmless Error — Instructions — Refusal of Request. The refusal of the court to give a requested instruction, although it may be correct as an abstract principle of law, is not prejudicial, where the subject-matter is included in general instructions, covering the different features of the law applicable to all the facts.</p> <p>Same (460) — Harmless Error — Instructions. . An isolated portion of an instruction in a negligence action telling the jury that plaintiff is required to use that degree of care and prudence which a “person of ordinary intelligence” would use, though technically incorrect, is not prejudicial, where in another part of the same instruction the jury are expressly charged that the question for their consideration is, “Did plaintiff exercise reasonable care and prudence for' her own safety under the facts and circumstances in the case?”</p> <p>Trial (105) — Instructions—Refusal of Requests. In an action for personal injuries received by plaintiff from opening the wrong door and falling down a flight of steps, the refusal of a requested instruction that “if was the plain duty of plaintiff to use her sense of sight and look where she was stepping” was not error, where the jury were charged as to the duty of plaintiff to exercise reasonable care and prudence for her safety, and to determine whether the proximate cause of the accident was due to her failure to exercise such care and prudence.</p> <p>New Trial (49-1) — Misconduct of Jury. The affidavit of a third person, based upon the unsworn statement of a juror to him after the trial, respecting misconduct of a juror in the jury room, is not sufficient to support a motion for a new trial.</p> <p>Same (39) — Newly Discovered Evidence — Credibility of Witness. An affidavit of newly discovered evidence supporting a motion for new trial on that ground is insufficient where it discloses matter going only to the credibility of plaintiff as a witness, rather than to her right of recovery.</p> <p>Appeal (126) — Preservation of Grounds — Objections—Conduct of Counsel. Misconduct of counsel for the prevailing party cannot be urged as ground for new trial where no objection or exception was taken at the time.</p>

, entered March 11, 1921, upon findings in favor of the defendants, upon the hearing of objections to the final account of an administrator.

<p>Appeal from a judgment of the superior court for Benton county, Truax, J., entered December 8, 1920, upon sustaining a demurrer to the complaint, dismissing an action by stockholders against a corporation.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered April 11,1921, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Municipal Corporations (22, 23) — Port Districts — Governmental Powers — Arandonment oe Service. The port of Seattle, being a public corporation created by law to exercise governmental purposes, may abandon the operation of a ferry which it finds unprofitable, since it is not subject to the limitations of a private corporation which holds a ferry franchise.</p>

Cross-appeals from a judgment of the superior court for King county, Ronald, J., entered March 17, 1921, in favor of the plaintiffs as against one defendant, in an action for equitable relief, tried to the court.

<p>Intoxicating Liquobs (6) — Pbohibition—Unlawful Possession Statutes — Eighteenth Amendment. Initiative measure No. 3, as amended by Laws 1917, p. 60, § 11, providing that it shall be unlawful for any person to have in his possession any intoxicating liquor is not nugatory as in conflict with the Federal statute (41 Stat. L., p. 317, § 33) declaring “it shall not be unlawful to possess liquors in one’s private dwelling”; inasmuch as the state statute covers the offense of possession away from one’s dwelling, and is not superseded by the national law except in so far as it is in conflict therewith.</p> <p>Statutes (33-36) — Amendment—Time fob — “Enactment” of Statute — Construction. The initiative and referendum provision of the constitution (Const., Amendt. 7) prohibiting the amendment of a law approved by a majority of the electors voting thereon “within a period of two years following such enactment,” contemplates the time of its complete enactment in a legal sense; accordingly, a provision of the act itself postponing the time of its taking effect to a later date would not defeat the power of the legislature to amend the act at any time after the expiration of two years from its proclamation by the governor.</p> <p>Criminal Law (57) — Complaint—Abandonment — New Complaint Charging Higher Offense — Rights of Accused — Jurisdiction. The abandonment of a prosecution instituted by a prosecuting attorney in a justice court does not militate against his power to file a new complaint charging a higher offense to be tried by the justice as a committing magistrate and thereafter proceed upon proper information filed in the superior court to a trial of the accused for a higher offense of which the latter court alone has jurisdiction.</p> <p>Intoxicating Liquors (30, 49) — Unlawful Possession — Prior Convictions — Evidence—Admissibility. Laws 1917, p. 61, § 15, amending initiative measure No. 3, increasing the punishment for a second violation of the liquor prohibition law, and declaring that a certified record of conviction “shall be sufficient evidence and proof of such previous conviction,” is not unconstitutional as an attempt to make such certified record conclusive proof, where it is merely introduced as an evidentiary fact, which the jury are free to weigh as such.</p> <p>Arrest (6) — On Criminal Charge — Authority to Arrest Without Warrant. The sheriff has no authority to arrest without warrant one who was not disturbing the peace, and was not suspected of committing a felony, where the sheriff had no actual knowledge that the party arrested was committing the misdemeanor of unlawfully having possession of intoxicating liquor.</p> <p>Intoxicating Liquors (53) — Seizures—Validity—Authority in Absence of Search Warrant. The seizure without any search warrant of intoxicating liquor in the possession of a person, being in violation of the Federal (amendments 4; 5) and state (art. 1, §§ 7, 9) constitutions, such liquor cannot be produced in evidence against one prosecuted on a charge of having intoxicating liquor in his possession, where the defendant was unlawfully arrested and his automobile seized without any warrant and possession of the liquor was not actually disclosed until examination of defendant’s vehicle under a search warrant issued subsequent to his arrest.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Back, J., entered November 1, 1920, in favor of the plaintiff, in an action to set aside a deed, tried to the court.</p>

<p>Application filed in the supreme court October 31, 1921, for a writ of mandamus to compel the superior court for King county, Smith, J., to grant plaintiffs’ motion for the appointment of a commissioner to cancel certain mortgages.</p>

<p>Homicide (110-112) — Trial—Instructions—Justification. In a prosecution for homicide, where the defense was that the act was justifiable, the omission by the court of the element of justification in its charge to the jury defining the degrees of murder was error, notwithstanding an attempt in later instructions to define justifiable homicide.</p> <p>Same (110, 111-1) — Justifiable Homicide — Instructions—Misleading Instructions. In a prosecution for homicide where there was no evidence that the deceased had endeavored to withdraw from the fight, nor that the killing was done through motives of anger or fear after a change of circumstances had freed the defendant from danger, an instruction that under such circumstances the killing was not justifiable was misleading and erroneous, as assuming facts not in the case.</p> <p>Same (14-18) — Justifiable Homicide — Self-Defense—Duty of Defendant. A person on his own premises may defend himself from an unprovoked assault with any means within his command even to taking the life of his assailant, if the assault is of such a nature as to cause him reasonably to believe that he is in danger of his life or of great bodily harm.</p> <p>Same (121) — Trial—Instructions—Grade or Degree of Offense —Necessity. In a prosecution for murder in the first degree, it is error to refuse a requested instruction in the language of Rem. Code, § 2308, that where an offense has been proved against a person and there exists a reasonable doubt as to which of two or more degrees he is guilty, he shall be convicted only of the lowest; and the same is not cured by a verdict of second degree murder, since manslaughter is a degree within the crime of murder.</p> <p>Criminal Law (306) — Trial—Abstract Instructions. An instruction in a criminal case upon confessions and admissions is erroneous, though correct as a proposition of law, where there is no evidence justifying such instruction.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered February 28, 1921, upon findings in favor of the plaintiff, in an action on a contractor’s bond, tried to the court.</p>

<p>Fraud (13) — Actions — Pleading — Complaint. An action for damages based upon false and fraudulent representations inducing the sale of a motor truck, is not based upon a warranty, express or implied, and may be maintained regardless of the vesting of title, or knowledge of the falsity of the representations.</p> <p>Fraud (9) — Sales (107) — Implied Warranty — Second-Hand Machinery. Though there may be no implied warranty on the sale of a second-hand article, one who makes false and fraudulent representations inducing its sale cannot escape liability for the fraud.</p> <p>Appeal (396) — Review—Presumptions—Instructions. On appeal from a judgment based on a verdict, it will be assumed, in the absence of the instructions, that questions of fact upon which reasonable minds might differ were properly submitted under correct instructions.</p> <p>Election of Remedies (3) — Acts Constituting Election — Mistake in Remedy. The resort to the mistaken remedy of action for breach of warranty on the conditional sale of an article does not constitute an election of remedies precluding the buyer from pursuing a proper remedy for damages for fraud.</p>

<p>Eminent Domain (116) — Proceedings—Notice—Proof of Service —Affidavits—Sufficiency. Rem. Code, § 5633, providing notice of proceedings to condemn land to be posted, in case of absentee owners, “at a conspicuous place on the lands,” is shown to be strictly complied with by an affidavit of posting “at a conspicuous place on the lands to be affected by said road.”</p> <p>Evidence (142) — Parol Evidence to Vary Writings — Public Records. In condemnation proceedings to establish a public highway, where there are in evidence two purported orders of the county commissioners for the establishment of the road, oral evidence is admissible to show that one of them had not been adopted by the board nor recorded in their minutes, and that the other order had been approved and signed by the commissioners and set out in the journal of their proceedings.</p>

<p>Appeal from a judgment of the superior court for King county, Brinker, J., entered March 7, 1921, upon findings in favor of the plaintiff, in an action for equitable relief, tried to the court.</p>

<p>Statutes (63) — Construction—Title and Headings. While the title to an act is always a subject for consideration in ascertaining the legislative intent, a headnote, even though enacted by the legislature as a part of the act, should not be made an excuse for construing an act which is' clear, plain, and concise, leaving nothing open to construction.</p> <p>Same (63) — Construction—Title and Headings — Scope and Subject-Matter of Act — Intent of Legislature. Rem. Code, § 2527, as amended by Laws 1915, p. 492, § 2, providing that “every person, who . . . being the driver of any animal or vehicle upon any public highway, street, or other public place, shall be intoxicated while engaged in the discharge of any such duties, shall be guilty of a gross misdemeanor,” includes the driver of an automobile, whether he be owner or employee, the enactment of the headnote “Intoxication of employees,” as an index of the section not being a limitation on the plain provisions of the statute showing a legislative intent to cover other classes as well as employees.</p>

<p>Attorney and Client (44) — Action eoe Compensation — Evidence. In an action by an attorney to recover the reasonable value of legal services, which defendant claimed were to be rendered for a contingent fee, but tne attorney testified otherwise, the questions of the rendition of the services and the reasonableness of the fee were for the jury. ,</p> <p>Witnesses (52) — Privileged Communications — Attorney and Client. The rule against the admissibility in evidence of privileged communications between attorney and client does not extend to conversations between an attorney and his client respecting the compensation for services of an associate counsel.</p> <p>Appeal (460) — Harmless Error — Instructions. An ambiguous statement in the course of oral instructions given by the court cannot be deemed prejudicial where in another part of the instructions the subject-matter to which exception is taken was clearly explained to the jury.</p>

Appeal by plaintiffs from a judgment of the superior court for Klickitat county, Darch, J., entered June 15, 1920, upon findings favorable to the plaintiffs, in an action to recover property belonging to an estate, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered April 15, 1921, in favor of the plaintiffs, denying a motion to vacate a default judgment in garnishment proceedings.</p>

<p>Guardian and Ward (20) — Accounting—Obdeb oe Court — Necessity. A settlement between a guardian and ward after the latter attains his majority, made without an order of court, amounts to a legal discharge of the guardian, when made without fraud or abuse of the guardian’s position of influence over the ward.</p> <p>Same (24) — Accounting—Fraud—Evidence—Sueeiciency. The burden of showing perfect good faith incumbent on a guardian in dealing with a ward is sustained by evidence showing a full, fair and complete understanding of the ward at the time of a settlement between them after the ward had attained his majority.</p> <p>Same (24). Where a ward, at the time of an accounting and settlement between him and his guardian, has knowledge of facts sufficient to put him on inquiry as to his rights, his delay of eight years in commencing suit to set aside the settlement constitutes such laches as to give him no standing in a court of equity.</p>

<p>Husband and Wife (58) — Community Property — Property Acquired During Marriage — Presumptions. Property acquired by spouses during the marital relation is presumptively community property, but this presumption is a rebuttable one.</p> <p>Same (19, 58, 60) — Wife’s Separate Estate — Purchase by Wife —Community Property — Evidence — Sufficiency. Where land is purchased by a wife with her separate funds, its status as her separate property remains as fixed until changed by deed, due process of law, or some form of estoppel.</p>

, entered January 3, 1921, in favor of the defendant, in an action to impress a trust on real property, tried to the court.

<p>Appeal from a judgment of the superior court for King county, French, J., entered June 4,1921, in favor of the plaintiffs, in an action for an injunction, tried to the court.</p>

<p>Cross-appeals from a judgment of the superior court for Walla Walla county, Mills, J., entered April 2,1921, upon findings in favor of the plaintiff, in an action for divorce, tried to the court.</p>

<p>Municipal Corporations (165) — Public Improvements — Contract —Abandonment by Contractor — Evidence — Sufficiency. Where contractors on public work abandon their contract, they thereby create an anticipatory breach which furnishes an excuse for nonperformance on the part of the other party.</p> <p>Same (166) — Contract—Performance—Approval or Certificate of Officers — Necessity. Where it is a prerequisite to the right of a public contractor to recover an installment payment due on a street improvement contract that he shall procure a certificate by the street committee stating the amount earned, a report by one member of the street committee to the town council of what is due the contractor will not excuse the nonproduction of the certificate.</p> <p>Same (157, 158) — Contractor’s Bond — Validity—Common Law Bond. Where a bond taken to secure the faithful performance of a public contract does not comply with the statutory requirements that it have more than one surety and be for the full amount of the contract price, it is nevertheless valid as a common law bond.</p> <p>Principal and Surety (3) — Execution of Bond — By Cosurety. A surety on a contractor’s bond on public work who signs on the understanding that another surety is to be procured, cannot escape liability where the bond is accepted by the obligee with no notice of such condition.</p>

<p>Waters and Water Courses (68) — Contracts—Grant oe Easement— Deeds — Rights oe Subsequent Grantees — Construction. Where the owner of lands grants to a water company the sole right to take, carry away and use all the water from certain streams flowing over or across his lands, in consideration of an annual rental, an easement in the land is created, and the right to such annual rental passes to any subsequent grantee who acquires the land by warranty deed, subject to the water company’s easement.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered May 21, 1921, in favor of the plaintiffs, in an action to foreclose logger’s liens, tried to the court.</p>

, entered April 6, 1921, upon findings in favor of the defendants, in an action on promissory notes and to foreclose a pledge, tried to the court.

Application filed in the supreme court November 2, 1921, for a writ of mandamus to compel the superior court for Franklin county, Truax, J., to assume jurisdiction of a cause.

, entered April 20, 1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages sustained in an automobile collision.

<p>Highways (52, 57) — Automobiles—Negligent Use — Evidence— Sufficiency. In an action for injuries to plaintiff’s automobile as the result of a rear-end collision on a public highway, the findings of the trial court are sustained by proof that plaintiff’s car was bumped into while all its lights were burning, and while traveling on a straight road, in view of the circumstance that defendant, if traveling at the moderate rate of speed testified to, could have seen plaintiff’s car in time to have stopped.</p>

<p>Corporations — Contracts—Liability of Stockholder of Corporation. The presence of individual stockholders of a fruit growing corporation at a meeting between the corporation and a fruit buyer, in which such stockholders voted that the corporation sell the fruit of the members to the fruit buyer, would not create a contract liability against the individual stockholders.</p> <p>Frauds, Statute of (1) — Promise to Pay Debt of Another. An oral promise by a stockholder of a corporation to become personally liable for its debts beyond the extent to which he stands liable under the law, being a promise to answer for the debt, default or miscarriage of another, is unenforceable within the statute of frauds.</p> <p>Principal and Agent (52-1) — Undisclosed Agency — Liability of Agent. Where, at the time of entering into a contract, it is fully known by the parties thereto that it is made for the benefit of other parties, no question of undisclosed principal is involved, and the contract is enforceable only against the party named, without any right of recourse against the third parties who are beneficially interested.</p> <p>Evidence (156) — Parol Evidence to Vary Writing — Parties to Instrument. Where a corporation entered into a written contract to sell the fruit of its stockholders, the contract cannot be varied by oral evidence that it was intended to bind the stockholders individually.</p>

<p>Principal and Agent (52, 63) — Undisclosed Agency — Liability to Therd Persons — Ratification of Acts of Agent — Contracts of Sale. Where a fruit grower’s company makes a contract for the sale of the fruit raised by its individual stockholders, a stockholder, by taking advantage of the terms of the contract to dispose of his early and soft fruits to the buyer at a price higher than thei market value, thereby ratifies and adopts the contract of the company calling for the delivery to the buyer of his crop of winter apples, and is liable in damages for a breach on his part.</p>

<p>Telegraphs and Telephones (5) — Inadequate Service — Actions —Powers op Public Service Commission. An action for damages grounded on the poor service rendered by a telephone company to a subscriber is not within the jurisdiction of the courts in the first instance, since under Rem. Code, § 8626, the remedy for unjust and unreasonable practices on the part of a public service corporation must be sought by application to the public service commission.</p>

, entered upon findings in favor of the plaintiff, in an action to subject real property to the lien of a judgment, tried to the court.

, entered Jnly 6, 1921, in favor of the plaintiffs, in an action to determine the prior rights of lien claimants, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered January 7, 1921, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for injuries sustained in a collision between an automobile and a street car.</p>

<p>Insurrection — Criminal Syndicalism — Evidence—Membership in I. W. W. The act of a member of the Industrial Workers of the World in inciting others to join the organization is in the nature of giving aid to such organization, within the prohibition of Laws 1919, p. 518, against criminal syndicalism.</p> <p>Same — Instructions — Sedition — Definition. In a prosecution for criminal syndicalism based on the act of defendant in inciting others to join the Industrial Workers of the World, it was prejudicial error for the court to charge the jury that “the term ‘sedition’ means to speak or to write against the character and constitution of the government or to seek to change it by any means except those prescribed by law;” in .view of the fact that the offense of sedition under the syndicalism statute does not include theoretical discussion.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered May 7, 1921, allowing a claim against a receiver, after a hearing before the court.</p>

, entered May 17,1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover damages to property from flooding.

<p>Counties (43) — Contracts—Proposals ob Bids — Notice—Sufficiency. Under Rem. Code, § 5755, requiring that notice of a call for bids for highway improvement “shall be published for at least two consecutive weeks previous to the date of letting” the contract, means that there shall be two full weeks’ notice between first publication and time of letting the contract.</p> <p>Judsments (171) — Operation and Effect — Recitals as to Services. The recital of the record of the board of county commissioners upon the letting of a public contract that “due notice of same has been given,” is prima facie, but not conclusive, evidence of sufficiency of statutory publication, and is rebuttable by evidence.</p> <p>Counties (43) — Contracts—Proposals fob Beds — Notice. Rem. Code, § 5755, providing that notice of the letting of a highway improvement contract shall be published for at least two consecutive weeks previous to the date of letting, cannot be construed as directory with respect to such two weeks’ publication, because of the fact the statute further adds, “and in such other manner as the board may see fit to direct.”</p>

<p>Appeal (47) — Decisions Appealable — Pinal Orders — Rulings on Demurrer. An appeal does not lie from an order overruling a demurrer, in the absence of a final judgment against the demurrant.</p> <p>Vendor and Purchaser (97) — Performance of Contract — Assumption of Mortgage. An agreement to assume and pay a mortgage on land cannot be enforced by the promisee, when the mortgage debt has not been paid by him or by some one on his behalf.</p>

Cross-appeals from a judgment of the superior court for Chelan county, Grimshaw, J., entered February 3, 1921, upon findings in favor of the plaintiffs, in an action for damages for breach of contract, tried to the court.

<p>Assignments (20) — Operation and Effect — Rights Transferred —Recovery of Full Amount. Where a manufacturer on shipping goods to a purchaser assigns the invoice therefor to a bank for borrowed money less in amount than the face of the invoice, the hank thereby acquires a right of action against the purchaser for the full amount of the invoice price, under Rem. Code, § 191, notwithstanding the assignor may have an interest in the thing assigned.</p> <p>Sales (72) — Performance of Contract — Quantity—Excess Delivery. Where a fruit company, after contracting in writing with a mill company for a quantity of pear boxes, orally arranges that a portion of the boxes should he shipped to another fruit company, the former company would not be liable for any excess of boxes over the contract quantity delivered without its knowledge to the latter company.</p> <p>Interpleader (5) — Judgment. One who is not an original defendant cannot complain that judgment is rendered against him, where he voluntarily intervenes in the action, makes a defense, and seeks affirmative relief against the plaintiff.</p> <p>Sales (72) —Performance of Contract — Quantity—Effect of Excess Delivery. Where, under a written contract between a mill company and a fruit company, 15,000 pear boxes were to be delivered at a stated price, and by subsequent oral agreement a car load of the boxes was to be shipped to another fruit company without any stipulation as to price, the latter company would be liable for the prevailing market price at time of delivery on such quantity of boxes as were in excess of the 15,000 called for by the written contract between the original parties.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered March 19, 1920, upon findings in favor of the plaintiff, in an action for injury to goods while in transit, after a trial on tbe merits to tbe court.</p>

, entered January 15, 1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in a fall upon a sidewalk.

, entered July 5, 1921, upon findings in favor of the defendants, in an action by an heir to recover an interest in an estate, after a trial on the merits to the court.

<p>Vendor and Purchaser (131, 133) — Bona Fide Purchaser — Title —Consideration and Good Faith — Evidence—Sufficiency. Where mother and daughter, as sole heirs of an estate, joined in a deed to a tract of land belonging to the estate, for which the daughter never received any portion of her share of the consideration, the daughter has no right of action against the purchaser to recover her undivided one-half interest on the theory that he dealt in bad faith, since the purchaser was justified in assuming, when tendered a deed duly executed by mother and daughter, that the mother was authorized to receive that part of the consideration belonging to the daughter.</p>

<p>Appeal from a judgment of tbe superior court for Columbia county, McCroskey, J., entered July 5, 1921, upon findings in favor of tbe defendants, in an action to contest tbe validity of a will, tried to tbe court.</p>

<p>Contracts (12) — Teems and Conditions — Evidence of Agreement. Under a contract between an architect and a church building committee whereby he was to be compensated by a commission of one per cent on the estimated cost of a proposed building for his services in helping to select a plan, in case such plan was accepted, the architect is not entitled to compensation for his services where no plan was accepted and the failure to accept a plan is not shown to be arbitrary.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J., entered September 13, 1921, upon a trial and conviction of selling intoxicating liquor.</p>

<p>Pleading (53) — General Denial — Scope. In an action hy a landlord against a tenant for damages at the close of the term, based on the tenant’s failure to leave the same quantity of land in summer fallow as existed at the time of entry, the complaint alleging ownership in plaintiffs of such summer fallow, is sufficiently traversed by a general denial as to permit the introduction of evidence showing that neither by the understanding of the parties nor by custom was it incumbent on defendant to leave the same amount of summer fallow on vacating the land.</p> <p>Same (196) — Waiver op Demurrer — Pleading Over. Error in sustaining a demurrer to a complaint is waived where the plaintiff files an amended complaint.</p>

<p>Electricity (1, 3) — Statutory Control — Contracts foe Power and Light — Validity—Discriminations. A contract by a public service corporation to furnish power for driving mill machinery, electric light for the mill plant, steam heat for its dry kilns, and make repairs to its machinery, in consideration for the -transfer by the mill company of its steam plant which was to be used for generating electricity, does not constitute a public service contract, the contract being one for private service, before the dedication of any service to the public.</p> <p>Contracts (4) — Mutuality of Obligations. A contract whereby a mill company transfers its steam plant to an electric company, for which it is to supply fuel in return for electric power and light, cannot be said to be void for want of mutuality because of the possibility of the mill company’s ceasing to operate its plant at pleasure, where the contract also provides that, in case of a “shut down” of the mill, the electric company shall have the use of its saws and conveyors for the purpose of supplying necessary fuel.</p> <p>Electricity (1, 3) — Statutory Control — Contracts for Power— Validity. In a contract calling for the furnishing of fuel to operate a steam plant for the generation of electricity in exchange for electric light and power so generated, a provision that the parties shall render monthly bills to one another for such services, charging an equal amount therefor, is not an admission by the parties that the furnishing of the electricity is a public service, but shows rather the intent of the parties that the contract should not fall within the regulatory provisions of the public service statutes.</p> <p>Damages (72, 74) — Breach of Contract — Measure — Expense Incurred — Loss of Profits. Under a contract to furnish electricity and steam for a term of thirty-five years, which was breached a few years after it was entered into, the proper measure of damages is the expense of replacing the lost service, the injured party not being entitled to recover damages on the basis of yearly loss of profits for the balance of the term.</p> <p>Same (72). A valuation fixed by the parties on a steam plant in a transfer by a mill company to an electric company in consideration for a service of electric light and power for which the plant was to be utilized, is not the proper measure of damages on a breach of the contract by the electric company, but the mill company would be entitled to recover for loss of time and expense in changing back to a steam plant and replacing the electrical machinery which had depreciated in value.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Back, J., entered January 6, 1921, in favor of the defendant, in an action to set aside a deed, tried to the court.</p>

<p>Schools and School Districts (21, 25) — Powers of District Board — Text Books — Vote of Electors — Statutes — Construction. Under Rem. Code, § 4509, subd. 10, it is mandatory upon school boards in districts of the first class to furnish free text books to the pupils, when so ordered by vote of the electors of the district.</p> <p>Same (25, 30) — Text Books — Power to Incur Indebtedness— Statutes — Construction. A construction of a statute requiring free text books and supplies to be furnished pupils, on vote of the electors, as mandatory would not authorize the incurrence of debt beyond the constitutional limit, since the electoral authorization must be construed as in effect only so long as it may lawfully be carried out.</p> <p>Same (25, 30). Injunction will lie to prevent a school board from selling such school books as it has on hand which are suitable for use in the schools, where free school books have been authorized by popular vote.</p> <p>Costs (3) — Discretion of Court. The matter of costs being entirely within the discretion of the trial court where the judgment was not wholly in favor of one party, a denial of costs to either party cannot be assigned as error.</p>

<p>Fraudulent Conveyances (14) — Sai.es in Bulk — What Constitutes. Under Rem. Code, § 5299, a sale of a one-half interest in a business and stock of goods constitutes a sale in bulk.</p> <p>Same (14) — Affidavit as to Creditors — Liability of Purchaser. A purchaser of a one-half interest in a business and stock of goods, by exacting the affidavit as to creditors required by Rem. Code, § 5296, is not thereby excused from compliance with the mandate of Id., § 5297, requiring the vendee to see that his purchase money for the half-interest is applied, share and share alike, to the payment of bona fide claims against his vendor as shown by the verified statement of creditors.</p> <p>Same (14). A purchaser of an interest in a business is liable under the hulk sales law, for debts listed in his vendor’s affidavit, but only to the extent of a pro rata part to each creditor of the amount received by the purchaser from the sale.</p>

<p>Bills and Notes (119, 136) — Consideration—Burden of Proof —Evidence—Sufficiency. In an action on a promissory note to which the defense is interposed that it was given as an accommodation note without consideration, the burden of proof is upon the maker, and a finding by the trial court on conflicting evidence will not be disturbed on appeal, where the evidence does not preponderate against the finding.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J., entered October 25, 1920, in favor of the defendants, in an action to foreclose a mortgage, tried to the court.</p>

<p>Waters and Water Courses (92) — Irrigation—Assessments— Redemption — Persons Entitled to Redeem. A landowner’s association, formed to look after the individual interests of a large number of owners of property within an irrigation district extending through three counties, may properly redeem the lands of a member from sale for delinquent irrigation assessments where such action is either authorized or ratified by the landowner, since the act of the association is not the intermeddling of a stranger.</p> <p>Same (92) — Sale oe Land — Return and Record — Statutes. Where a county treasurer as ex-officio treasurer of an irrigation district sells lands within the district to satisfy delinquent assessments, his failure to file a duplicate certificate of sale in the office of the county auditor of the county in which the land is situated, as required by Rem. Code, § 6442, invalidates the sale, since the filing of such certificate in the proper county is an essential element of the sale.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Davis, J., entered February 21, 1921, upon findings in favor of the plaintiffs, in an action to annul an assessment roll, tried to the court.</p>

<p>Criminal Law (101) — Evidence—Res Gestae. In a prosecution for the larceny of a quantity of wheat, the testimony of the owner that the defendant voluntarily came to him and offered to pay for the wheat, to which he replied he was not selling wheat, he had been robbed three times and that he wanted this one run down, was admissible as part of the conversation in answer to defendant’s offer.</p> <p>Appeal (445) — Review—Harmless Error — Misconduct of Counsel. Improper cross-examination by the prosecuting attorney to which objection is promptly sustained by the court, is harmless error.</p> <p>Criminal Law (345)' — Motions for New Trial — Misconduct of Counsel. The denial of a new trial on the ground of improper and prejudicial language of the prosecuting attorney was not an abuse of the court’s discretion, where objection to the language was sustained, the counsel admonished, and the jury instructed to disregard it.</p> <p>Larceny (39) — Trial—Instructions — Possession. An instruction that defendant’s possession of stolen property, if the jury so find, is not of itself sufficient to justify a conviction of larceny, but defendant’s possession thereof is a circumstance which may be taken in connection with all the other circumstances and facts in the case, is not erroneous in that it did not further state that the possession was personal, not simply constructive.</p> <p>Criminal Law (250) — Trial—Province of Court and Jury— Weight of Evidence. A requested instruction that if the jury should be satisfied from the evidence that defendant’s offer to pay for the stolen wheat, without admitting its larceny, was for the purpose of avoiding publicity, that circumstance should not be regarded as evidence of guilt was properly refused, since the value of such testimony was for the jury.</p> <p>Criminal Law (277) — Trial—Instructions—Character. The refusal of á requested instruction in a prosecution for larceny to the effect that evidence of good character may of itself be sufficient to raise a reasonable doubt as to the guilt of accused was proper, where such evidence has been admitted and the jury charged generally to consider it with other evidence in arriving at their verdict.</p> <p>Criminal Law (358) — New Trial — Newly Discovered Evidence —Cumulative Evidence. The refusal of a new trial on the ground of newly discovered evidence of an alibi was within the sound discretion of the court, where it was cumulative with that given upon the subject at the trial.</p>

<p>Divorce (8-2, 37) — Grounds—Failure to Support — Evidence— Sufficiency. The refusal of a divorce on the ground of failure to properly support a wife and child is proper, where the evidence shows there was no wilful disregard of such duty on the part of the husband, but only inability to make ample provision for their support, and, in some instances, the exercise of bad judgment in the expenditure of what limited resources he had.</p>

<p>Appeal from a judgment of tbe superior court for Spokane county, Oswald, J., entered December 2, 1920, upon tbe verdict of a jury rendered in favor of tbe plaintiff, in an action in tort.</p>

Application filed in the supreme court September 30, 1921, for admission to practice law without preliminary examination by the board of law examiners.

<p>Criminal Law (111) — Evidence—Other Oeeenses. In a prosecu-„ tion for uttering a forged check upon a hank, evidence that defendant had previously drawn a number of checks upon a • bank in which he once carried an account, but in which he had no funds at the time, is inadmissible for the purpose of showing criminal intent on the charge of forgery.</p>

<p>Larceny (18) — Evidence—Ownership of Property — Statutes as to Recorded Brands. In a prosecution for tbe larceny of logs, the owner’s mark tbereon is admissible for tbe purpose of proving ownership, though it had never been recorded in compliance with the provisions of Rem. Code, § 7092, since that statute does not restrict evidence of ownership to recorded brands or marks.</p> <p>Same (25-2) — Value of Property — Evidence—Sufficiency. In a prosecution for the larceny of logs, their value is sufficiently proven by evidence of the price obtained on a sale by the one who purloined them.</p> <p>Same (28) — Taking of Property — Felonious Intent — Evidence —Sufficiency. The felonious intent of the finder of logs adrift in taking possession and selling them is sufficiently shown by evidence that the logs had a private brand and that there weré no other logs with the same marks, and that the finder had reasonable means of knowing ownership.</p> <p>Criminal Law (458, 459) — Punishment—Gross Misdemeanors— Statutes. Under Rem. Code, § 2267, providing that one convicted of a gross misdemeanor may be punished both by imprisonment in the county jail and by a fine not exceeding $1,000, and under Id., §§ 2200, 2209, authorizing the commitment to custody of a defendant adjudged to pay a fine, which, on failure to pay, he shall work out at the rate of two dollars per day, the court has power, upon sentencing a defendant to a term of imprisonment and to pay a fine, to further provide that he should be committed to jail until the fine is satisfied according to law.</p>

<p>Appeal (418) — Review—Findings. A finding by the trial court on conflicting evidence will not be disturbed on appeal, where it is supported by the weight of the evidence.</p> <p>Evidence (86) — Admissions — Oeeer oe Compromise. Evidence tending to support an actual compromise and settlement is not within the rule which does not permit evidence of an offer of compromise.</p> <p>Appeal (437) — Review—Harmless Error — Rulings on Pleadings. The denial of a motion to make a complaint more definite and certain cannot be urged as error on appeal, where the record shows that no prejudice resulted to appellant on account of the denial.</p>

, entered September 21, 1920, upon findings in favor of the plaintiff and intervener, but dissolving a writ of attachment upon certain property, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered January 13, 1921, upon a trial and conviction of being a jointist.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Lindsley, J., entered March 29, 1921, upon sustaining a demurrer to the complaint, dismissing an action on a fire insurance policy.</p>

<p>Eminent Domain (21, 39) — Public Use — Conflicting Claims— Priorities — Public Necessity — Evidence — Sufficiency. The court may determine that the use of the waters of a river by an irrigation company for irrigating a large quantity of arid land, and for the development of power necessary to its irrigation scheme, is superior to the use of such waters by a city fpr merely power purposes in the distribution of water to its inhabitants apart from domestic and city purposes, there being no showing by the city of a necessity for the use of the river waters for domestic purposes, in view of the rule prescribed by Laws 1917, p. 448, § 4, that “in condemnation proceedings the court shall determine what use will be for the greatest public benefit, and that use shall be deemed a superior one;” especially where the irrigation use was prior in time.</p> <p>Same (111) — Proceedings — Parties — Rights of Interveners. Where condemnation proceedings are instituted by an irrigation district against a power company for the purpose of establishing a superior use in the waters of a certain river, a city has no right to intervene therein for the purpose of securing an adjudication upon the city’s right to condemn, as against the power company, property other than that involved in the proceeding by the irrigation company.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wright, J., entered May 2, 1921, in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Railroads (64) — Accidents at Crossing — Contributory Negligence. Where it is customary at a railroad crossing over a city street to signal the movement of trains about to cross, an automobile driver who continues his course along the street in reliance upon the customary signal being given, and in the absence of any apparent danger, would not be chargeable with contributory negligence as a matter of law in case of a collision between his automobile and the train.</p>

, entered April 7, 1921, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in a collision between an automobile and a train.

<p>Appeal from a judgment of the superior court for Pierce county, Askren, J., entered February 5, 1921, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.</p>

, entered March 1, 1920, upon findings in favor of the plaintiff, in an action to recover water charges, tried to the court.

<p>Appeal (268) — Record—Evidence—Special Proceedings. Where the statement of facts in a will contest on the ground of undue influence and incompetency has been stricken on appeal, the decree of the lower court will be affirmed when it is supported by findings that the deceased in making the will was not acting under any duress, fraud or undue influence, that he was fully competent to execute the will, and that it was in all respects executed and proved according to law.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered January 21, 1920, upon findings in favor of the defendants, in an action to cancel corporate stock, tried to the court.</p>

<p>Municipal Corporations (379) — Streets—Negligent Use — Collision at Crossing — Law op Road — Violation oe Ordinance. Where a collision occurs between an automobile and a bicycle, both of which were proceeding on the wrong side of the street, the bicycle rider is not chargeable with contributory negligence, if he had been forced into that position in an effort to avoid the negligence of the driver of the automobile.</p> <p>Pleading (181) — Variance—Materiality to Issue. A complaint alleging that a collision between vehicles occurred “about three feet from the curb, at the northwest corner” of two streets, while the proof showed the accident was some twenty feet north of that point, does not constitute a fatal variance, when there is no showing the defendant was misled by the pleading.</p>

<p>Appeal from a judgment of the superior court for King county, Reynolds, J., entered April 29, 1921, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered April 14, 1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered March 29, 1920, upon findings in favor of the defendant, dismissing an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered May 27, 1921, upon granting a nonsuit, dismissing an action on a check.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Brawley, J., entered May 18,1921, upon findings in favor of the defendants, in an action to enjoin the collection of a tax, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered May 12, 1921, upon sustaining demurrers to the complaint, dismissing an action on contract.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Abel, J., entered May 25, 1921, in favor of the defendant, dismissing an action of replevin.</p>

<p>Corporations (193) — Actions — Capacity to Sub — Conditions Precedent — Issues—Failure of Proof. Where an issue has been raised by the pleadings as to the capacity of a corporation to sue, a finding by the court of such capacity is unwarranted in the absence of proof addressed to that issue.</p>

Application filed in the supreme court December 10, 1921, for a writ of prohibition to prohibit the superior court for King county, Hall, J., from further proceeding- in a cause.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered May 9, 1921, upon a trial and conviction of the unlawful possession of intoxicating liquor.</p>

, entered January 15, 1921, upon findings in favor of the defendants, adjudging the title to property seized under a writ of attachment, tried to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered October 16, 1920, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

, entered July 8, 1921, reversing an order of the public service commission fixing rates for hauling logs, after a hearing before the court.

<p>Costs (11) — Mortgages (242) — Foreclosure—Attorney’s Fees— Tender Before Suit. A mortgagee is not entitled to recover costs and attorney’s fees in a suit to foreclose a mortgage, where foreclosure was denied on the ground that the money to satisfy the mortgage had been duly tendered at or prior to maturity and the tender had been kept good.</p> <p>Tender (4) — Mode and Sufficiency. Facts in case examined and held to constitute proper tender.</p>

<p>Appeal from a judgment, of the superior court for Pierce county, Chapman, J., entered April 26, 1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered April 30, 1921, in favor of the plaintiff in probate proceedings, adjudging a bequest to be exempt from the payment of an inheritance tax, after a hearing before the court.</p>

, entered May 17, 1921, in favor of the defendant, dismissing an action for an injunction and for damages, tried to the court.

<p>Application filed in the supreme court January 16, 1922, for a writ of mandamus to compel the state auditor to accept certain drainage district bonds and issue a warrant in payment therefor.</p>

, entered February 11, 1922, granting a writ of mandamus to compel the relator to give and publish notice of a general school election.

Application filed in the supreme court January 4, 1922, for a writ of prohibition to prohibit the superior court for King county, Frater, J., from further proceeding with a cause and to compel the granting of a change of venue.

<p>Brokers (16) — Compensation—Procuring Cause op Sale — Evidence— Sufficiency. A broker employed to procure a purchaser for the lease and furniture of an apartment house at a listed price, the owner retaining the right to make a sale direct and pay no commission if the broker was not the procuring cause, is not entitled to a commission where the owner enters into an agreement for a sale at a reduced price on condition that the sum is to be net to her, and in ignorance of the broker’s having brought the sale to the attention of the customer, and the sale is never consummated.</p>

<p>Principal and Agent (18) — Conversion by Agent — Liability to Principal — Effect of Conditional Bill of Sale. Where an automobile is placed in the hands of an agent to sell for cash, and the agent sells to a third person on terms by which he secures the full amount in cash, though the transaction embraces a conditional sale contract which is made out in the name of a finance company engaged in advancing money to the agent on such sales, the owner has no recourse against the finance company, his remedy being against his agent.</p>

, entered July 11,1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover a broker’s commission.

<p>Vendor and Purchaser (48) — Contract—Forfeiture—Default by Vendee — Waiver. A purchaser of real property under an executory contract making time of its essence, who defaults in payments without the acquiescence of the vendor, cannot recover the amount paid on the contract, though the vendor, subsequent to the default, has sold the property to another.</p>

, entered February 2, 1921, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages sustained in an automobile collision.

, 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.

, entered December 17, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for alienation of affections.

<p>Appeal from judgments of the superior court for Benton county, Truax, J., entered January 26, 1921, in favor of the plaintiffs, in actions to quiet title, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Lindsley, J., entered February 2, 1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>