Volume 119 — Washington Reports

<p>Appeal from a judgment of the superior court for Spokane county, Lindsley, J., entered August 30,1921, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to compel the issuance of a city warrant.</p>

, entered April 2, 1921, dismissing an appeal from an order of the board of county commissioners establishing a drainage district.

<p>Appeal (102) — Right to Appeal — Cessation op Controversy— Lapse op Time. Where a business license expires pending appeal from a judgment determining the rights of the parties in an action to restrain the city from revoking the license, the question becomes a moot one which the supreme court will not decide nor entertain for the purpose of determining costs.</p>

<p>Appeal from a .judgment of the superior court for King county, Griffiths, J., entered June 23, 1921, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through a defective highway.</p>

<p>Appeal from the judgment of the superior court for Pierce county, Clifford, J., entered August 2, 1921, upon sustaining a demurrer to the complaint, dismissing an action to obtain a reclassification of injuries under the workmen’s compensation act, and for an award of compensation.</p>

<p>Appeal from an order of the superior court for King county, Smith, J., entered October 2, 1920, granting a new trial.</p>

<p>Application filed in the supreme court December 21, 1921, for a writ of certiorari to review an order of pub-lie use and necessity in condemnation proceedings.</p>

<p>Street Railroads (22) — Collision at Crossing — Proximate Cause. The failure to sound a street car signal on approaching a street crossing cannot he ascribed as the proximate cause of collision between the car and an automobile, where both the driver and an occupant of the automobile were aware of the approach of the car in sufficient time to have avoided the collision.'</p> <p>Same (20) — Collision at Crossing — Contributory Negligence. One driving an automobile toward a street car line, at a rate of speed slow enough to permit of his stopping the automobile after seeing a street ear approaching the crossing, is guilty of contributory negligence in a collision resulting from his driving upon the track, irrespective of whether the street car may have been exceeding the speed limit, and his negligence is imputable to his employers who were occupants of the automobile.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered September 30, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from orders of the superior court for Klickitat couuty, Kirby, J., entered January 27, 1921, denying motions to dissolve an attachment and to strike interrogatories, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered December 24, 1920, upon findings in favor of the plaintiff, in, an action for damages sustained in an automobile collision, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ralston, J., entered November 8, 1921, in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

<p>Pleading (43) — Answer—Inconsistent Defenses — Joinder With General Denial. Assuming, in an action on a promissory note, that the defenses of non est factum, and the statute of limitations are inconsistent, the defendant would not thereby be cut off from all defense, under a general denial, of matters which he cannot be deemed to have admitted.</p> <p>Same (174) — Issues—General Denial. In an action on a promissory note alleged to have been given in payment of interest on a prior note, which allegation was specifically denied, it was admissible, under the general denial, to prove that the money for which the note was given was for a loan which the maker obtained to pay indebtedness to another party.</p>

<p>Appeal from a judgment of the superior court for King county, Griffiths, J., entered April 30, 1921, upon findings in favor of the plaintiff, in an action on promissory notes, tried to the court.</p>

<p>Assignment eor Creditors (14, 28) — Pending Actions — Rights and Remedies oe Creditors. Under an assignment for the benefit of creditors, the court assumes complete jurisdiction and the creditors should seek their remedy in that proceeding and not through independent supplementary proceedings in pending actions.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Reynolds, J., entered May 28, 1921, upon findings in favor of the plaintiff, in an action for rent, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered April 7, 1921, upon findings in favor of the plaintiff, in an action to construe a will, tried to the court.</p>

<p>Drains (4) — Establishment by Counties — Within Cities. The legislature had the power by Laws 1921, p. 646, § 1 [Rem. Comp. Stat., § 4405] to establish a drainage district “whether wholly or partly within the limits of any incorporated city.”</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered May 24, 1921, upon findings in favor of the plaintiff, in an action for divorce, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered April 28, 1921, upon the verdict of a jury rendered in favor of the defendant, in an action in tort.</p>

<p>Statutes (74) — Construction—Provisos. The ordinary purpose of a proviso being to except something from the operation of the act, it should not be given the effect of changing the entire purport of the act.</p> <p>Officers (19) — Term—Change. Under the rule that a statute should not unnecessarily be construed to shorten a term of office, Laws 1921, p. 179, § 2 and p. 180, § 4 [Rem. Comp. Stat., §§ 5144, 5146], changing the time for holding certain municipal elections, and providing for a different time for the beginning and ending of the terms, the incumbents at the time of the taking effect of the act hold to the end of the term for which they were elected, and until the time fixed for the commencement of the term of a successor; and the act was not intended to disturb the rotation of officers theretofore elected at different times.</p> <p>Same (19, 20) — Term—Change—Holding Over. Laws 1921, p. 179, § 2 and p. 180, § 4 [Rem. Comp. Stat., §§ 5144, 5146], changing the time for holding certain municipal elections and providing a later time for the beginning of the terms, whereby incumbents hold over, does not violate Const., art. XI, § 8, prohibiting the extension of the term of an officer beyond the term for which he was elected, where it appears that all such incumbents were elected for a named period of time “and until their successors are elected and qualified.”</p>

, entered December .23, 1920, upon tbe verdict of a jury rendered in favor of tbe plaintiff, in an action for personal injuries sustained by a riveter employed in tbe construction of a vessel.

<p>Vendor and Purchaser (64) — -Rescission by Purchaser — Estoppel. A contract for the purchase of a rooming house will not be rescinded because of the vendor’s failure to deliver a copy of the contract, where the purchaser remained in possession and made payments called for by the contract at a bank where the copy was kept.</p> <p>Same (63, 65) — Rescission by Purchaser — Defect in Title— Conditions Precedent. A contract for the purchase of a rooming house will not be rescinded without tender of performance by the purchaser, because of an alleged incumbrance or lien, contrary to the representations of the vendor, where the purchaser had not been disturbed in her possession.</p>

<p>Principal and Agent (35) — Powers of Agent — Authority to Collect. A loan agent Is shown to be the agent of the borrower, with authority to collect principal as well as interest, of a mortgage in which it was mortgagee, although it did not have possession of the mortgage note, where its practice was to make loans in its own name, indorse them to its customers, collect And remit interest, and the borrower was familiar with the practice, took a note without recording any assignment and had no dealings with the mortgagor, until after the agent had collected part of the principal and become insolvent.</p>

<p>Insurance (188) — Larceny (37) — Action on Theft Policy— Asportation — Question for Jury. In an action on an auto theft policy, the question of asportation is for the jury, where there was evidence from which the jury could find that the car was parked on a grade, with brakes set and the gears locked, preventing propulsion by the engine, and that a third person entered the car, released the brakes and ran it down hill, abandoning it; since theft is not dependent upon the length of time that property is converted or the extent of the use.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Reynolds, J., entered April 11, 1921, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.</p>

<p>Garnishment (23-26) — Proceedings to Procure — Bond. Rem. Code, § 680, authorizing writs of garnishment in an action where an original attachment has been issued (in which case the plaintiff must have executed an attachment bond), without requiring any garnishment bond, must be construed as in pari materia with the attachment law; and renders the surety on the attachment bond liable for the wrongful issuance of a writ of garnishment in aid of the attachment; otherwise the law would authorize a garnishment without the security of any bond.</p>

Appeals from orders of the superior court for Thurs-ton county, Wright, J., entered August 22, 1921, dismissing proceedings to review an order of the department of public works establishing gas rates.

<p>Carriers (5) — Regulation and Control — Demurrage Charges— Delivery of Cars. A railroad company did not make legal delivery of cars, and could not recover demurrage charges where, owing to unprecedented floods, cars of logs consigned to defendant, could not be placed at the usual unloading place or near the plant or unloading spur so that they could be unloaded.</p> <p>Same. There was no delivery of cars of logs, to start demur-rage charges, where owing to unprecedented floods, the railroad company was unable to move the cars to a position where they could be unloaded, according to the usual custom.</p>

<p>Banks and Banking (4-1) — Offenses—Unlawful Loans — Information. Under Rem. Comp. Stat., § 3259, making it a felony to loan bank funds to an officer of the bank without procuring authority by a resolution of the directors, an information charging a consummated loan is sufficient, notwithstanding it charges that the resolution was not first procured; since a subsequent approval would be no defense.</p> <p>Banks and Banking (4-1) — Criminal Law (110) — Evidence of Other Crimes. The offense of loaning the funds of a bank to an officer without procuring the necessary authority involves no element of intent or motive; hence it is error to admit evidence of other like offenses or of a custom to pursue that method.</p> <p>Criminal Law (229) — Trial—Scope of Evidence in Rebuttal. In a prosecution for unlawfully loaning the funds of a bank, evidence of other like offenses is not admissible in rebuttal, because of defendant’s statements on cross-examination as to defendant’s request to another officer to have the loan attended to in the regular way.</p> <p>Banks and Banking (4-1) — Criminal Law (458) — Sentence— Extent of Punishment. Under Rem. Comp. Stat, § 3259, making it a felony to loan bank funds to an officer of the bank without a resolution of the directors, the court can only sentence defendant to the penitentiary, and not for a misdemeanor.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered March 29, 1921, in favor of the defendant, in garnishment proceedings, tried to the court.</p>

<p>Cbiminal Law (104) — Evidence—Res Gestae — Statements of Person Injured. Upon a prosecution for murder by blowing up a dredge, statements of an injured workman made within 10 or 15 minutes after the explosion, when rescued from the -water, are admissible as part of the res gestae, where they were spontaneously made and presumptively impulsive and without design or premeditation.</p> <p>Same (104). In such a ease, statements made while the injured man was being rowed across the river, and which were mere repetitions of his first statements, are admissible as part of the res gestae.</p> <p>Same (131-1) — Evidence—Admissions of Accused — Acquiescence ob Silence. In a prosecution for murder by blowing up a dredge, statements of deceased shortly after the explosion charging defendant with the crime, made in defendant’s presence, and not replied to when the circumstances naturally called for a reply, are admissible.</p>

<p>Cross-appeals from a judgment of the superior court for King count y, Hall, J., entered April 6, 1921, upon findings in favor of certain lien claimants, in an action to foreclose a mechanics ’ lien, tried to the court.</p>

<p>Municipal Corporations (443, 469) — Streets—Obstructions— Contributory Negligence oe Person Injured. It cannot be said that an auto driver was guilty of contributory negligence, as a matter of law, in driving in the night-time between two red lights thirty feet apart, on the principal thoroughfare of a large city, and striking the end of a derrick pole extending from a truck parked at the curb for unloading where a building was under construction, it appearing that he did not see the pole, which was unlighted and extended to the center of the street four feet above the surface.</p>

<p>Fish (6) — Licenses—Rights Under. Rights acquired under a roving fishing license, although fixed by a definite location and survey, are not vested rights in real property.</p> <p>Limitation of Actions (19, 19-1) — Injury to or Taking of Property. An action against a public service corporation for destruction of or injury to a fishing location, occupied under annual state licenses, is subject to the three-year statute of limitations [Rem. Code, § 159] for injuries to personal property or other injury to the person or rights of another, whether considered as an action in tort, or one of implied contract for taking property without condemnation and prepayment of compensation.</p> <p>Same (65-1) — Tolling—New Action After Failure of Former Action. Rem. Code, § 173, tolling the statute of limitations in case a judgment for the plaintiff be reversed if an action be commenced within one yean thereafter, does not apply where no cause of action was stated or existed when the first cause of action was commenced; hence limitations upon an action for damages to a fishing location are not tolled by plaintiff’s prior injunction suit in which .judgment for plaintiff was reversed on the ground that injunction did not lie against the public service company.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered July 14,1921, upon findings in favor of the plaintiffs, in -an action for conversion, tried to the court.</p>

, entered May 14, 1921, upon findings in favor of the plaintiff, in consolidated actions in replevin and to foreclose a chattel mortgage, tried to the court.

, entered June 30, 1921, upon findings in favor of the plaintiff, in an action for separate maintenance, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Oswald, J., entered May 14, 1921, upon findings in favor of the defendant, in an action to recover property belonging to the estate of a decedent, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered July 21, 1921, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

, entered April 2, 1921, upon 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 street car.

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered March 24, 1921, upon findings in favor of the plaintiff, in an action on a judgment, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Sessions, J., entered June 14,1921, upon findings in favor of the plaintiff, in an action for money paid, tried to the court.</p>

, entered November 10, 1920, in favor of the defendants, dismissing an action to recover money belonging to the estate of a decedent.

Application filed in the supreme court February 8, 1922, for a writ of prohibition to prohibit the superior court for Grays Harbor county, Abel, J., from further proceeding with a cause.

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered August 27, 1921, in favor of the defendants, dismissing an action to cancel a tax and for injunctive relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 23, 1921, upon a trial and conviction of maintaining a nuisance.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered November 17, 1921, upon findings in favor of the defendants, dismissing an action for rent, tried to the court.</p>

Application filed in the supreme court January 20, 1922, for a writ of mandamus to compel the director of public works to receive and file policies of insurance relating to the operation of motor vehicles.

, entered July 29, 1921, in favor of tbe defendant bank, decreeing tbe priority of a mortgage over mechanics’ liens, in an action to foreclose a mechanics ’ lien, tried to tbe court.

<p>Appeal from a judgment of the superior court for Island county, Bell, J., entered May 6, 1921, upon findings in favor of the defendants, after a trial to the court upon stipulated facts, in an action for equitable relief.</p>

<p>Banks and Banking (4-1) — Officers—Criminal Responsibility— Unlawful Loans. The giving of a note by a bank officer for the purpose of taking up an overdraft which he owed the bank, is not the making of a loan to himself, within Laws 1917, p. 297, § 52 [Rem. Comp. Stat., § 3259], and does not support a charge of the making of a loan on the date the note was given.</p>

<p>Landlord and Tenant (129) — Unlawful Detainee — Defenses. An arbitration and award between a landlord and tenant, whereby the tenant was to retain possession of the leased premises until the landlord had made full repayment of a substantial sum in cash, goes solely to the right of possession and therefore is a good defense to an action of unlawful detainer.</p> <p>Arbitration and Award (1) — Contracts (39) — Validity—What Law Governs. A written agreement for an arbitration and award, not affecting the title to real property in this state, good as a common law award and valid in the state where made, will be enforced in this state, although it was not made a matter of record nor judgment'entered upon it, as required of awards in this state.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered June 4, 1921, upon findings in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

, entered January 8, 1921, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by passengers in an auto bus struck by a street car.

<p>Appeal from a judgment of the superior court for King county, Frater, J,, entered December 24, 1920, upon a trial and conviction of larceny.</p>

<p>Ceimotal Law (382) — Appeal—Right oe State to Appeal. Under Rem. Code, § 1716, authorizing appeals from a final judgment and providing that no appeal shall be allowed the state in any criminal action except for error in setting aside the indictment or information, or in arresting judgment on the ground that the facts do not state a crime, no appeal lies from an order sustaining a demurrer to the information, where no judgment of dismissal was entered; and the fact that the state refused to amend or further plead does not convert the order into a final judgment of dismissal.</p>

<p>Appeal from a judgment of the superior court for King county, Griffiths, J., entered November 12, 1921, upon findings in favor of the defendants, in an action on promissory notes and to subject property to the lien of a judgment, tried to the court.</p>

<p>Bail (6, 7) — Forfeiture—Discharge—Insufficient Complaint. A bail bond given in compliance with Rem. Code, § 1957, conditioned for the principal’s appearance in the superior court to answer to the “charge” of rape, is not discharged by reason of the fact that the information was held insufficient on demurrer, where the court permitted the filing of an amended information charging the same offense.</p> <p>Same (6) — Forfeiture—Notice to Appear. Under Rem. Code, § 2231, judgment of forfeiture of a bail bond may be entered where “due notice was given” the defendant to appear for arraignment on a certain day, and he failed to do so.</p>

<p>Sales (113, 117, 165) — Wabbanty of Fitness — Breach—Waiver— Acceptance — Damages. The purchaser of canned tomatoes from the manufacturer who accepts the goods on inspection may nevertheless recover for latent defects through improper canning for breach of implied warranty that the goods were fit for human consumption and capable of being kept the customary time.</p> <p>Same (117) — Warranty—Waiver of Breach. Under a manufacturer’s sale of canned tomatoes, providing that .claims for “swells” must be made within six months, and all other claims within ten days from the receipt of the goods, the ten-day provision relates only to patent defects, where all damaged cans would first swell, and the defects could not be discovered within the ten-day period; since an unreasonable limitation for the discovery of latent defects will not protect the seller.</p> <p>Trial (10) — Right to Open and Close. In an action on contract, where the complaint was admitted and the sole issue was on a counterclaim, the defendant had the burden of proof and was entitled to open and close.</p> <p>Evidence (59) — Relevancy—Similarity of Conditions. Upon an issue as to damages for breach of implied warranty in the sale of canned. tomatoes, which were apparently in good condition when delivered hut spoiled within six months, it is proper comparison to admit evidence that other tomatoes were kept in the same place during the same time and did not deteriorate; also to exclude testimony that other-goods packed by the seller at the same time but not having similar storage had not developed trouble.</p>

<p>Master and Servant (121-2) — Workmen’s Compensation Act-Remedies oe Workman — “Deliberate Intent” — Statutes, Under Rem. Code, § 6604-6 [Rem. Comp. Stat., 7798] allowing a servant, compensated under the workmen’s compensation act, to maintain an action against the master if the injury resulted from “deliberate intention” of the master to produce the injury, there must be a specific intent, not merely carelessness or negligent use of an agency after knowledge on the part of the master that it was dangerous and unsafe.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered February 11, 1921, upon a trial and conviction of murder.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Abel, J., entered July 23, 1921, upon a trial and conviction of the unlawful possession of intoxicating liquor.</p>

<p>Municipal Corporations (379, 383, 392) — Use of Streets — Mutual Rights at Crossings — Contributory Negligence — Instructions. Under an ordinance giving the right of way to vehicles on the right in the case of simultaneous approach to a street intersection, it is not error to instruct that a vehicle on the right, which admittedly was first to reach the intersection, would have the right of way; and it was not error to refuse an instruction that such driver would be guilty of contributory negligence precluding a recovery if on the wrong side of the street, where it omitted the element that such fact must have contributed to the accident.</p> <p>Appeal (445) — Harmless Error — Argument of Counsel. Error cannot be predicated upon an improper remark by counsel in addressing the jury, which was in answer to an equally improper remark of opposing counsel, where the court immediately instructed the jury to disregard it.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered January 7,1921, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Motion to dismiss an appeal from a judgment of the superior court for King county, Griffiths, J., entered October 17, 1921.</p>

, entered November 13, 1920, upon findings in favor of the plaintiff, in an action of unlawful detainer, tried to the court.

<p>Partnership (55) — Actions — Capacity to Sue — Conditions Precedent — Statutes. Rem. Code, §§ 8369-8373, requiring the filing of a partnership statement, as a condition precedent to maintaining an action, relates only to the capacity to sue, and may be complied with by the filing of a statement after the partnership had ceased to do business as a going concern.</p> <p>Judgment (183) — Res Judicata — Finality—Reversal on Appeal. On the reversal of a judgment, rendered below on the merits, it ceases to be res judicata thereon.</p> <p>Same (188, 189) — Res Judicata — Merits of Controversy. The dismissal of a cause of action brought by a partnership, for the reason that the plaintiffs then had no capacity to sue, by reason of failing to file the precedent statutory partnership statement, is not res judicata on the merits or a bar to a subsequent suit in which they had capacity to sue.</p> <p>Pleading (87) — Demurrer—Pleading Good in Part. Upon overruling plaintiff’s demurrer to a defense based on the ground that it did not state sufficient facts, it is error to dismiss the action, where the answer was not a complete, but only a partial, defense.</p>

, entered August 2, 1921, upon findings in favor of the plaintiff, in an action for damages sustained in an automobile collision, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 31, 1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Davidson, J., entered November 19, 1920, upon a trial and conviction of the unlawful possession of intoxicating liquor.</p>

<p>Appeal from a judgment of the superior court for King county, Mills, J., entered July 16, 1921, in favor of the plaintiffs, in an action for rescission, tried to the court.</p>

<p>Contracts (86) — Construction—Building Contract. Proposals by a sash and door factory to furnish all window frames for a building do not include the priming coat, which the specifications required should he given before placing, where the proposals did not refer to the specifications or mention the painting.</p> <p>Custom: and Usages (6) — Evidence as to Existence oe Custom. The evidence of one witness that it was the custom of the plant with which he was familiar to put a priming coat on window frames and sash does not establish a general custom among mill work manufacturers to do so.</p> <p>Contracts (86) — Construction—Building Contracts. A proposal by a sash and door factory to furnish all mill work for a building, specifying the list of materials, consisting of doors, window sash frames, and so forth, including “all glass,” refers to the glass in the frames and sashes listed, and does not include skylight glass to be set in metallic frames not included in the proposals, or made by the factory.</p> <p>Contracts (92) — Performance—Reasonable Time. Where no time is stipulated for the furnishing of mill work for a building, it must be furnished within a reasonable time.</p>

<p>Certiorari to review a judgment of the superior court for Okanogan county, Neal, J., entered July 19, 1921, adjudging a reasonable necessity in condemnation proceedings for a private way.</p>

<p>Appeal from a judgment of the superior court for King county, Prater, J., entered May 31, 1921, upon findings in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

, entered August 23, 1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in a taxicab.

, entered November 25, 1921, affirming an order of the department of public works granting a certificate of necessity and convenience for the conducting of an auto transportation service.

, entered October 1, 1920, upon findings in favor of the plaintiffs, in an action to recover real property and to quiet title, tried to the court.

<p>Appeal from a judgment of the superior court for Yakima county, Nichoson, J., entered June 4, 1921, upon the verdict of a jury rendered in favor of the defendants, in an action for a broker’s commissions.</p>

<p>. Principal and .Agent (19, 21) — Mutual Rights and Liabilities— Estoppel — Negligence of Agent — Ratification—Waiver of Claim Against Agent. There is an implied ratification by the principal of the acts of his agent in purchasing furs contrary to instructions when the principal himself takes control of the furs and disposes of them in a distant market; and any claim against the agent for loss sustained in the transaction is waived by the principal’s failure, until á suit is started against him for the recovery of unpaid salary, to advise his agent that the furs had been sold at a loss or that he had any intention of holding the agent responsible for such loss.</p> <p>Appeal (452) — Review—Harmless .Error — Errors Not Affecting Trial de Novo. Error in receiving evidence on an issue not pleaded is harmless where the same result is reached by considering the evidence not objected to.</p>

<p>Discovery (10) — Pleading (184-1) — Bill of Particulars — Discretion of Court — Excuse for Delay. A reasonable excuse for delay in furnishing a bill of particulars and: answering interrogatories, where no prejudice resulted and the failure was not willful, warrants the court in exercising its discretion and should not preclude the party from giving evidence as to the matters.</p> <p>Appeal (43S) — Harmless Error — Pleading—Demurrer. Error in refusing to sustain a demurrer to an affirmative defense is cured by excluding the evidence.</p> <p>Executors and Administrators (146) — Claims—Set-off. One sued by an executrix of the estate may plead as an offset a claim against the deceased, without having presented a claim against the estate, although it is limited to extinguishment of the debt.</p> <p>Evidence (99) — Witnesses (48) — Self-Serving Statements— Transaction with Deceased — Books. In an action by an executrix, involving a mercantile partnership account, defendant’s identification of the books, kept in the usual course of business, is not objectionable as evidence of transactions with the deceased, nor as self-serving.</p> <p>Partnership (23, 96) — Accounting—Charges and Credits — Interest on Advances — Result. It is not error to refuse to allow interest on advances made by the partners, upon striking the partnership account, where excess initial advancements by one partner would be offset by his excess withdrawals and it is not shown that the interest due one would materially exceed that due the other.</p> <p>Pleading (104) — Amendments—To Conform to Proof. Where the evidence on a third cause of action for money loaned to a partner showed that the money was loaned to the firm and used by it, the court may treat defendant’s answer admitting the loan to him as an inadvertence.</p> <p>Executors and Administrators (146) — Claims—Counterclaim. In an action by an executrix, it is error to give an affirmative judgment on a counterclaim in excess of plaintiff’s claim, where no claim was presented against the estate as required by the statute of non-claim.</p> <p>Partnership (23-32) — Mutual Rights — Liability on Note to Partner. A partner executing, as co-maker, a partnership note to his co-partner for the purpose of borrowing money for the use of the partnership (of three members) is liable as a co-maker for the whole sum, and it is error to confine his liability to one-third thereof.</p>

<p>Certiorari to review a judgment of the superior court for Lincoln county, Sessions, J., entered May 31, 1921, adjudging a public use and necessity in condemnation proceedings.</p>

<p>Pleading (74) — Reply—Depasture—New Matter — Consistency. In an action on a county bridge contract for damages, for refusal to allow the contractor to complete the work, in which the county alleged failure to complete the contract within the time limit, it is not a material variance for plaintiff to reply that he was delayed and unable to finish the work within the time limited because of inability to obtain cement and because of high waters.</p> <p>Contracts (148, 161) — Performance or Breach — Excuse for Delay — Evidence—Admissibility. Where a county answered to a contractor’s complaint that he had abandoned the contract after failing to complete the work on time, and there was evidence tending to show waiver of the time limit, evidence that the delay was caused by high water and inability to obtain cement is admissible as tending to disprove abandonment.</p> <p>Contracts (151, 162) — Performance or Breach — Waiver, of Objections — Evidence—Question for Jury. The liability of a county upon a bridge contract, after preventing the contractor from completing the work after the time limit had expired, is for the jury where there was evidence of waiver of the time limit and that the contractor was able and willing to perform, and had not abandoned the work.</p> <p>Damages (74, 128) — Measure of Damages — Breach of Contract — Instructions. Where a contract for the construction of a bridge is breached through no fault of the contractor before completion of the work, the measure of damages, where the contractor does not ask for profits lost, is such proportion of the whole contract price as the amount of work done bears to the whole amount of the work to be done; and it is error to instruct the jury that he would be entitled to reimbursement for his expenses in so far as he proceeded in the performance of the contract and' in addition all profits which he would have realized by performing the whole contract.</p>

<p>Sales (75) — Performance of Contract — Inspection and Approval — Fraud—Evidence—Sufficiency. A buyer having the privilege of calling for inspection at the point of delivery, its acceptance of and payment for cars of hay without such inspection affords no support for a charge of fraud in the certificate of inspection issued at point of shipment.</p> <p>Sales (42) —Contract—Modification — Evidence — Sufficiency. A written contract for the sale of hay, subject to the rules of an exchange permitting twenty per cent inferior grade to be tendered, is not modified by correspondence between the parties in which the seller, after several shipments had been rejected by the buyer, gave assurance that the balance of the hay would be satisfactory to the buyer and that the contract would be completed with No. 1 hay.</p>

<p>Appeal from an order of the superior court for King county, Brinker, J., entered March 24,1921, in favor of the defendant, in proceedings to_ determine the interest due on an inheritance tax due from the estate of a decedent.</p>

, entered March. 18, 1921, in favor of the defendant upon agreed facts, dismissing an action for an injunction, after a trial to the court.

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered January 10, 192.1, in favor of the defendants, in an action in ejectment, tried to the court.</p>

<p>New Trial (49) — Misconduct of Jurors — Impeachment—Matters Inhering in Verdict. The verdict of a jury cannot be impeached on motion for a new trial by affidavits of the jurors showing that they disagreed and were mistaken as to the testimony given by a certain witness in the case; since the fact inhered in the verdict.</p> <p>Municipal Corporations (379, 390) — Use of Streets — Mutual Rights at Crossings — Negligence — Contributory Negligence— Question for Jury. The negligence of the defendant and the contributory negligence of plaintiff in a collision of automobiles at a street intersection, are for the jury, where it appears that plaintiff’s stage had the right of way as the car first entering the intersection, and defendant’s car was traveling at excessive speed, while the stage driver was going slower, and looked to the left before entering the intersection.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Brawley, J., entered April 26, 1921, upon a trial and conviction of rape.</p>

Appeals from orders of the superior court for What-com county, Hardin, J., entered March 28,1921, quashing grand jury indictments on the ground of disqualification of the special prosecuting attorney.

<p>Appeal from a judgment of the superior court for "Whatcom county, Brown, J., entered June IB, 1921, in favor of the defendant, upon sustaining a demurrer to the copiplaint, dismissing an action for an injunction.</p>

<p>Municipal Corporations (381, 392) — Use of Streets — Rate of Speed — Instructions. Error cannot he predicated upon an Instruction as to negligence in case the maximum speed was exceeded, where there was evidence from which the jury could reasonably conclude that the limit was being exceeded.</p> <p>Same (380, 392) — Use of Streets — Ordinances—Crossings—Instructions. In an action by a pedestrian, struck by an automobile when about to hoard a street car stopping near a crossing, it is proper to instruct that a traffic ordinance as to the right of way “at any crossing,” does not mean the exact mathematical lines of the street, but means close proximity to the line where a prudent person would have a right to be when proceeding to step upon a street car at the crossing.</p>

<p>Waters and Water Courses (99) — Irrigation—Regulation oe Supply. Where a decree apportions the water of a stream to various tracts, one user not actually prejudiced cannot complain because another user of two tracts diverts the percentage apportioned to one of his tracts and uses it all upon the other.</p> <p>Same (99). Where a decree apportions water of a stream to various tracts on a percentage basis, the adoption of a rotation plan does not entitle a lower owner to have a pond on the land of an upper owner completely drained on the days he is allowed to use the water, when only the overflow joins the stream, where the pond is filled from the upper owner’s share of'the water.</p> <p>Same (99). Where the waters of a stream have been apportioned by a decree of court on a percentage basis, the hydraulic engineer can only enforce the decree and cannot order a rotation plan conflicting with the percentages.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Askren, J., entered April 29,1921, upon a trial and conviction of practicing medicine without a license.</p>

<p>Appeal from a judgment of the superior court for "Whatcom county, Hardin, J., entered January 27,1921, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

■ Appeal from a judgment of the superior court for King county, Brinker, J., entered June 24, 1921, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.

<p>Navigable Waters (1) — Lakes—What Constitutes. A small lake covering forty acres, from ten to fifty feet deep at any point fifty feet from the shore, is a navigable lake, although it has never been used for navigation.</p> <p>Waters and Water Courses (1) — Appropriation. The water between high and low water mark in a navigable lake is subject to appropriation for irrigation.</p> <p>Same (10-13) — Appropriation—-Priorities—Quantity. The measure of the rights of a prior appropriator who claimed all the waters of a navigable lake for irrigation is the amount of water actually taken and put to a beneficial use, and the same cannot be increased by subsequent needs, as against a subsequent appropriator.</p> <p>Same (10, 15) — Appropriation—Privity—Changes. A subsequent appropriator of surplus waters in a lake has the right to add and store waters in the lake for his use, subject to prior rights, and under supervision of the hydraulic engineer under Rem. Comp. Stat., § 7396.</p>

, entered April 20,1921, upon granting a nonsuit, dismissing an action for personal injuries sustained by a longshoreman while loading a ship.

<p>Bills and Notes (141) — Bona Fide Pukchaseb — Good Faith-Knowledge op Defects — Evidence—Sufficiency. Whether a trade acceptance in consideration, of the future delivery of goods was purchased in good faith for value, does not depend so much upon knowledge of circumstances which excite suspicion, as upon the good faith of the purchaser.</p>

<p>Physicians and Sueseons (2) — License to Practice — Dentists— Statutes. The dental practice act, Rem. Code, § 8412 et seq., is constitutional.</p> <p>Courts (38) — Rule oe Decision — Federal District Courts. The supreme court of this state is not bound by the decisions of any Federal court except the supreme court of the United States.</p>

, entered April 19, 1921, upon the verdict of a jury rendered in favor of the' plaintiff, in proceedings to determine the paternity of a child and for maintenance.

, entered January 8,1921, upon findings in favor of the plaintiffs, in consolidated actions for damages to property by fire, tried to the court.

<p>Appeal from a judgment of the superior court for Walla Walla county, McCroskey, J., entered December 17, 1920, in favor of the defendants, dismissing an action for fraud, tried to the court.</p>

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

<p>Appeal from a judgment of the superior court for Adams county, Truax, J., entered August 9,1921, upon a trial and conviction of grand larceny.</p>

<p>Appeal from a judgment of the superior court for King county, Card, J., entered April IB, 1921, upon conviction of attempted carnal knowledge of a child.</p>

Application filed in the supreme court September 26, 1921, for a writ of habeas corpus to release a person held in custody upon a charge of murder.

<p>Municipal Corporations (386) — Use of Streets — Pleading— Auto in Charge oe Drunken Driver. A complaint against the owner of an automobile for damages caused by a drunken driver of the car states a cause of action where it alleges that the owner permitted the driver to take out the car knowing that he had a quart of whiskey, was going on a spree, and in the habit of getting drunk and liable to injure others while driving in that condition.</p> <p>Same (392) — Use op Streets — Liability for Acts op Drunken Driver — Instructions. In such a case, it is proper to instruct that the owner would be liable for damages for which the driver would be liable, if he loaned him the car knowing that he was liable to become intoxicated, under such circumstances as would produce in the mind of a reasonable man reasonable grounds for belief that he might become intoxicated.</p> <p>Same (389) — Use op Streets — Insufficiency op Evidence— Drunken Driver. In such a ease, there is sufficient evidence to go to the jury on the question of the owner’s liability, where it appears that the owner admitted that the driver and his companion were in the habit of taking the car out for parties after work, and that they could not have been very intoxicated because they had only one quart of whiskey with them and were good drinking men.</p>

<p>Larceny (1) — Offenses Constituting — Statutes. Rem. Comp. Stat., § 2601, making it larceny to take, lead or drive away the property of another with intent to deprive the owner thereof, defines a distinct offense and is not superseded by Id., § 2601-1, providing that any one who intentionally takes or drives away any motor vehicle of another shall be deemed guilty of a felony; and the latter offense does not necessarily include the idea of theft.</p> <p>Homicide (268) — Question for Jury — Completion of Larceny Before Killing. In a prosecution for first degree murder, under Rem. Comp. Stat., § 2392, subdiv. 3, for the killing of a policeman while accused was engaged in the larceny of an automobile, whether the crime of larceny had been completed was properly left to the jury, where the accused had stolen the car at ten o’clock the night before, driven it six or seven miles, and left it and returned the next morning and were in the act of starting it, when the officer arrived and was shot and killed by one of their associates.</p> <p>Homicide (3%) — First Degree — Killing in Perpetration of Larceny — Continuing Offense. The offense of larceny is a continuing one, and possession of the stolen property after the crime constitutes a continuance of the offense, making the killing of an officer while accused was in the act of driving away a car, stolen the night before, murder in the first degree.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered June 27, 1921, denying a writ of habeas corpus and remanding petitioner to jail to serve a suspended sentence, upon sustaining a demurrer to the petition.</p>

<p>Physicians and Surgeons (10-1, 11) — Malpractice—Evidence— Sufficiency. It is error to grant a nonsuit in an action for malpractice in failing to properly reduce a simple fracture of the radius of the right arm, where it appeared there was no misuse of the arm during the treatment, and that at the time of the discharge the arm was crooked and shortened, there was a visible lump, constant pain and loss of flexion and a second operation was necessary to make the arm even passably usable.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Wilson, J., entered May 21, 1920, upon findings in favor of the plaintiff, in an action in ejectment, tried to the court.</p>

<p>Municipal Corporations (66)- — Employees—’Removal — Civil Service Rules — Review. Where a discharged city employee in civil service fails to demand an investigation hy the civil service commission within ten days, as required hy the city charter, the courts cannot inquire into the discharge or order his reinstatement.</p>

, entered April 23, 1921, upon findings in favor of the plaintiffs, in an action on a promissory note, tried to the court.

<p>Municipal Corporations (479) — Torts—Defects in Water Pipes —Actions—Contributory Negligence. In an action against a city for damages for flooding a basement through the breaking of a water main, the fact that plaintiffs occupied the basement without providing drains as required by an ordinance, would not constitute contributory negligence, precluding a recovery, unless it appears that the want of such drains contributed to the injury.</p> <p>Same (479) — Actions—Evidence—Admissibility. In an action for damages for flooding a basement, provided with a siphon in place of the drains required by ordinance, it is incompetent to show that an administrative officer issued a license to the plaintiff to use such siphon, in violation of the ordinance, as the defense of contributory negligence might thereby be taken out of the case.</p>

<p>Execution (91) — Sukplementary Proceedings — Claims by Third Persons. In proceedings supplemental to execution, under Rem. Code, § 620, authorizing an order for the delivery of property “the right to the possession whereof is not substantially disputed,” the court cannot reguire the delivery of money placed in the hands of and claimed by an attorney, advanced to him to cover the cost of and for the purpose of presenting an appeal for the judgment debtor.</p>

, entered July 8, 1921, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.

<p>Witnesses (104, 105) — Credibility—Former Conviction — Arrest. Cross-examination of the accused and rebuttal evidence as to a previous arrest of the accused for a distinct offense, not confined to the question of a previous conviction of a crime, is inadmissible under Rem. Code, §§ 1212, 2148, 2290, relating to evidence of a previous conviction and the cross-examination of the accused.</p> <p>Same (126-1) — Impeachment—Contradiction—Coi/lateral Matters. Where the state, on cross-examination, explores the subject of a previous arrest of the accused for a distinct offense, it is bound by the answers as upon a purely collateral matter, and it is reversible error to permit the state to introduce rebuttal evidence thereon.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Sessions, J., entered June 2,1921, upon findings in favor of the plaintiff, in an action on an account, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered February 28,-1921, upon a trial and conviction of grand larceny.</p>

, entered July 7, 1921, directing the payment to a receiver of property belonging to an insolvent corporation, after a hearing before the court.

, entered March 15,1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages to an automobile sustained in a collision.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered June 25, 1921, upon a trial and conviction of incest.</p>

<p>Landlord and Tenant (60) — Injury to Premises by Landlord— Negligence — Defenses. Tbe fact that blasting on leased premises was done by an independent contractor, employed by the landlord to do the blasting,, is no defense to the tenant’s action for damages to the demised premises, and disturbing the tenant’s quiet possession thereof; especially where the operations were supervised by the landlord, and were wilfully designed to disturb the tenant.</p> <p>Same (60) — Negligence—Evidence—Sufficiency. Where a landlord reserves the right to clear uncleared portions of the land leased, the fact that the usual and customary method was by blasting with stumping powder would not justify the negligent and wanton use of excessive charges of powder in such a manner as to unnecessarily injure, .damage and deprive a lawful tenant of peaceable possession of tbe premises not being cleared.</p> <p>New Trial (25) — Grounds—Excessive Damages. It is not an abuse of discretion for the trial court to deny a motion for new trial based on excessive damages due to passion and prejudice in an action for damages to buildings and business by blasting stumps, where the jury returned a verdict of $700 and the evidence would justify a larger verdict on the basis of loss of profits alone.</p>

<p>Certiorari to review an order of the superior court for Snohomish county, Alston, J., entered March 22, 1922, denying a temporary injunction.</p>

<p>Contracts (151) — Performance—Delay—Waiver. Findings upon the conflicting statements of the parties to a building contract that a delay was waived on account of a strike, are supported where .plaintiff’s evidence was corroborated by one of defendant’s witnesses and by the fact that defendant expressed sympathy with the strike.</p> <p>Same (159) — Rights on Partial Performance. Where the parties to a building contract agreed that another contractor should remedy defects in placing the windows, at the expense of the contractor, the amount paid therefor fixes the limits of the contractor’s liability for his failure of performance.</p> <p>Costs (80) — On Appeal — Unnecessary Matter — Ímproper Abstract. Where the transcript consisted of but 166 pages, costs will not be allowed for an abstract of over 100 pages made up almost exclusively of question and answer, as the same is not a substantial compliance with the rule.</p>

, entered July 7, 1921, upon findings in favor of the plaintiffs, in an action to secure the reduction of an assessment, tried to the court.

<p>Counties (100) — Actions—Pleading—Contracts. In an action against a county upon a written contract made by the sheriff and prosecuting attorney for services in the enforcement of the liquor law, under Rem. Comp. Stat., § 4940, setting aside for that purpose fifty per cent of all fines collected for liquor violations, the complaint states a cause of action against the county where it alleges that the contract was made with the consent and approval and by the authority of the county commissioners.</p> <p>Mandamus (52) — Issue of Warrants for Payment. Mandamus lies to compel the issuance of a county warrant upon a claim under a written contract, which was arbitrarily rejected by the county commissioners.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Hewen, J., entered June 27, 1921, in favor of the defendants, in an action to foreclose a mortgage, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered May 14, 1921, upon a trial and conviction of robbery.</p>

<p>Fraud (22) — Evidence—Sufficiency. Obscurity in the language of a written contract is not alone sufficient to establish fraud, in the absence of any evidence of overreaching.</p> <p>Executors and Administrators (154) — Actions — Judgment— Lien. In an action against an executor to recover money collected by the decedent under an agreement on the sale of mining claims, contemplating also an incorporation of a company and a further payment in stock, the plaintiff is not entitled to have the judgment recovered declared a specific lien on the money of the estate, in the absence of proof of fraud, and cannot ask more than the establishment of a lien against decedent’s interest in the mining claims, no company having been formed or stock delivered.</p>

<p>Master and Servant (121-2) — Workmen's Compensation — Orders oe Commission — Review. Tlie courts cannot review an order of tlie industrial insurance commission on tlie facts of the classification, determining the amount of the award, where it was not capricious or arbitrary or based upon a misconstruction of the statutes.</p>

<p>Criminal Law (137) — Evidence — Hearsay — Declarations of Third Persons. In a prosecution for criminal syndicalism, on an issue as to the unlawful purposes of membership in the I. W. W., testimony as to what supposed members of the organization stated and told the witnesses were the purposes of the organization is inadmissible as hearsay.</p>

Application filed in the supreme court March 27, 1922, for a writ of certiorari to review an order of the superior court for King county, Brinker, J., entered March 8,1922, suppressing certain testimony in a criminal prosecution.

, entered January 26, 1922, in favor of the defendants, in an action.to enjoin the use of general funds in the operation and maintenance of. a municipal railway system.

Gross-appeals from a judgment of the superior court for Thurston county, Wilson, J., entered January 3, 1922, setting aside an order and certificate issued to a carrier by the. director of public works.

, entered May 20,1921, upon sustaining a demurrer to the compláint, dismissing an action for a writ of mandate to compel the issuance of a warrant.

<p>Appeal from a judgment of the superior court for Columbia' county, Miller, J., entered January 10, 1921, denying a writ of mandamus.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered January 3, 1921, upon granting a nonsuit, dismissing an action for fraud, tried to the court and a jury.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Lindsley, J., entered May 9, 1921, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of thei superior court for Island county, Bell, J., entered June 27, 1921, upon a trial and conviction of rape.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Askren, J., entered April 22, 1921, upon findings in favor of the defendants, in an action to cancel an assignment of contracts, and for other relief, tried to the court.</p>

, entered April 22, 1921, upon findings in favor of the defendants, in an action to cancel an assignment of contracts, and for other relief, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Ralston, J., entered July 1, 1921, upon findings in favor of the plaintiff, in an action of ejectment, tried to the court.</p>