Volume 129 — Washington Reports

, entered January 11, 1923, in favor of the defendants, in an action to enjoin the collection of a tax, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered October 21,1922, upon a trial and conviction of the unlawful possession of intoxicating liquor.</p>

<p>Brokers (33) — Actions for Commissions — Evidence — Sufficiency. ■ Findings that a broker was entitled to commissions on the sale of stock in the sum of $5,824.80 are not sustained, where much of the evidence is unintelligible without a bill of particulars, which is not in the record, and the evidence in the record tends to support a judgment for but $735.60.</p>

<p>Garnishment (9, 32) — Judgments (260) — Assignment—Piling and Recording — Priorities. An assignment of “the amount recovered by me this day” in a designated case, made after the judge announced his decision, but before the formal judgment was signed and entered and filed in the clerk’s office, is an assignment of the judgment to be entered, which was done three days later, and takes precedence over a subsequent writ of garnishment against the judgment creditor, served after the entry of the judgment; in view of Rem. Comp. Stat., § 664, authorizing the garnishment of a judgment debtor of the defendant when the judgment has not been previously assigned on the record or by writing filed in the clerk’s office.</p>

, entered July 31, 1922, upon findings in favor of the plaintiff, in an action to foreclose a logger’s lien, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Carey J., entered April 7, 1923, 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 King county, Gilliam, J., entered April 21, 1923, upon findings in favor of the plaintiff, in an action in tort, tried to the court.</p>

<p>Evidence (173) — Insurance (30)- — Oral Agreement to Insure— Modification of Contract — Parol Evidence to Vary Writing. A clause in a mortgage that the mortgagor keep the property insured is not contradicted by evidence of an oral agreement that the mortgagee, who was an insurance agent, agreed to renew the policy of insurance on the place and send the mortgagor the bill which the mortgagor agreed to pay, and that the mortgagee failed to renew the policy; since the mortgagee occupied a dual position and as an insurance agent could make the parol agreement to keep up the insurance in that manner, and would be liable for the damages from its breach.</p>

<p>Municipal Corporations (326) — Constitutional Law — Nuisances — Abatement oe Eire Hazard — Ordinances — Validity — Vested Rights. Where a property owner maintained a fire hazard in violation of a general fire hazard ordinance, a special ordinance applying to him alone, and declaring a nuisance is not invalid, in so far as it directs the corporation counsel to abate it by legal proceedings, nor because it provided a different method for abatement than that provided in the general ordinance, so long as the property owner had notice and his day in court; there being no vested right in a particular remedy.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered December 9, 1922, 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 Stevens county, Carey, J., entered January 6, 1923, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malicious prosecution.</p>

, entered May 14, 1923, upon findings in favor of the plaintiff, in an action on a fraternal benefit certificate, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Ronald, J.’, entered November 17,1923, in favor of the plaintiff, in garnishment proceedings, tried to the court.</p>

<p>Landlord and Tenant (6, 10) — Agreement for Lease — Acknowledgment. An unacknowledged lease or contract for a lease of real property for a term exceeding one year is within the statute of frauds, Rem. Comp. Stat., § 10618, and void.</p> <p>Frauds, Statute of (49) — Part Performance — Unacknowledged Lease — Validity. An unacknowledged contract for a lease of four rooms in a building to be constructed by the landlord is not taken out of the operation of the statute of frauds by part performance, by the construction of the building and the making of changes in the plans a,nd specifications at the instance and request of the tenant, where the extent of such changes is not shown and the tenant never took possession or paid any rent.</p>

<p>Vendor and Purchaser (63) — Rescission by Vendee — Defect in Title- — -Evidence—Sufficiency. A vendee may rescind a contract of purchase where a survey of the lot disclosed that the house supposed to be thereon extended for some distance over the line, the true location of the line was in dispute, and the property is less valuable than it would be were the line as represented.</p> <p>Same (64) — Rescission by Vendee — Estoppel. The lapse of three years, or any time short of the statute of limitations, does not estop a purchaser or bar an action to recover for a defect in title to that part of the premises occupied by the dwelling which extended over the supposed line of the lot purchased.</p> <p>Same (67) — Rescission by Vendee — Actions—Conditions Precedent — Restoration of Possession of Lands. Remaining in possession, after discovering a cloud on the title, does not estop the purchaser from rescinding; since tender of restoration is not a condition precedent where plaintiff shows a willingness to do equity.</p> <p>Same (75) — Rescission — Operation and Effect — Rents and Profits — Right to Offset. Where a rescission is sought because of failure of title to part of the premises, the vendee waives the benefit of his bargain, and the vendor may offset the rental value of the property, occupied for a considerable period, against interest on the purchase price paid, but not against the purchase price paid.</p> <p>Same (184) — Measure of Damages — Payment of Taxes and Insurance. Upon rescission by the vendee for defect of title, under a contract requiring the vendee to pay taxes and assessments during the term of the contract, the payments were part of the purchase price, of benefit to the vendor, which should be returned to the vendee.</p>

<p>Homicide (45) — Evidence—Relevancy—Identity oe Accused. On an issue as to the identity of accused in a prosecution for manslaughter in recklessly driving an automobile which did not stop, it is admissible to show that police officers made a search for the man in whose name the license was taken and that accused had purchased the car and taken out the license in the name of the former owner.</p> <p>Criminal Law (276) — Instructions—Time oe Oeeense — Alibi. In a prosecution for manslaughter in recklessly driving an automobile, in which the killing is alleged to have occurred at four o’clock in the afternoon and the defense was an alibi at that hour of the day, instructions referring merely to the day in question are not objectionable or confusing because not confined to the hour alleged.</p> <p>Same (9, 273) — Elements oe Ofeense — Intent—Unintended Consequences oe Act — Instructions. In a prosecution for manslaughter in recklessly driving an automobile, instructions do not eliminate the question of proximate cause and are correct, where the jury is told that, if defendant drove in a careless manner at a greater speed than was reasonable so as to endanger another, or across a public intersection at an unlawful speed, and if such act resulted in the killing it was immaterial whether it was accidental or intentional, and defendant would be guilty, though he tried too late to avoid the accident (Bridges, J., dissenting).</p> <p>Same (265, 288) — Trial—Instructions—Comment on Evidence. It is not unlawful comment on the evidence in a homicide case to instruct that circumstantial evidence is often as conclusive as direct and positive evidence, and that the jury should not discriminate either for or against it.</p>

<p>Guaranty (3) — Acceptance—Necessity. A guaranty is binding although not formally accepted, where a landlord wrote that he would guarantee his tenant’s debt if time were extended to a certain day and the tenant’s creditor forbore suit in reliance thereon.</p> <p>Same (5) — Consideration—Sufficiency. Extension of time for payment and forbearance to foreclose a chattel mortgage on a tenant’s stock and farm implements, is a sufficient consideration to support the landlord’s guaranty of the tenant’s debt.</p> <p>Same — Remedies—Enforcement of Agreement — Action—Conditions Precedent. A guarantee is not required to exhaust his remedy against the principal debtor before suit against the guarantor, where the debt or obligation was due and absolute before the guaranty was given.</p>

<p>Appeal from a judgment of the superior court for Thurston county, "Wright, J., entered November 26, 1923, upon granting a nonsuit, dismissing an action for conversion.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Simpson, J., entered December 17,1923, upon a trial and conviction of rape.</p>

<p>Application filed in tlie supreme court November 2, 1923, for a writ of habeas corpus.</p>

<p>Bills and Notes (78, 78-3) — Indorsers—Presentment—Notice of Dishonor — Waiver of Default in Payment of Installment. The holder of a note due in installments failing to give notice of dishonor of an installment without then exercising an option to accelerate the maturity of the note, releases the indorser as to that payment only; and by giving notice of a subsequent default under Rem. Comp. Stat., § 3493', and then exercising the option, may hold the indorser for the balance of the note.</p>

<p>Statutes (18) — Subject and Title — Warehousemen—Regulation of Business. The warehousemen’s act, entitled an act (1) for the prevention of fraud in the grain and hay trade, (2) for the establishment of standards, (3) regulating warehousemen and dealers, (4) defining the duties of railroads, (5) regulating tracks and connections, and (6) providing penalties, does not embrace distinct and unrelated subjects, in violation of Const. Art. II, § 19, providing that no bill shall embrace more than one subject and that subject expressed in the title; nor was it necessary to mention in the title that a bond is required of warehousemen.</p> <p>Warehousemen (5) — Liability—Conversion—Necessity for Demand. A demand upon a warehouseman to restore or deliver wheat, as contemplated by Rem. Comp. Stat., § 7001, in order to authorize an action upon his bond, is not a condition precedent to such an action where the warehouseman was insolvent and had converted the wheat and placed it out of his power to comply with the demand.</p> <p>Warehousemen (5) — Principal and Surety (47) — Action on Bond — Liability—Conditions Precedent. Since the conversion of wheat by a warehouseman renders him liable therefor without any demand, a demand is not a condition precedent to an action against the sureties upon his bond the obligation of which was to answer that the warehouseman shall faithfully perform the acts and duties enjoined upon him by law.</p> <p>Pasties (24) — Joinder—Principal and Surety — Joint and Several Bond. In the case of a joint and several bond upon which the principal is liable, the sureties may be sued separately from the principal, under Rem. Comp. Stat., § 192, giving the plaintiff the right to sue all or any of the persons severally liable on the same obligation.</p> <p>Warehousemen (5)— Conversion of Goods — Evidence — Sufficiency. A wrongful conversion of wheat by a warehouseman is sufficiently shown by proof that he consigned it to a creditor on demand that his account be taken care of, drew drafts against part of it and billed the balance on open account.</p> <p>Bankruptcy (16) — Discharge—Torts—Waiver and Election. By § 16a of the bankruptcy act, the liability of a surety for a bankrupt is not altered by the discharge of the bankrupt.</p> <p>Same (16). Section 17a of the bankruptcy act, providing that a discharge of a bankrupt shall not release from liability for “wilful and malicious injuries to the person or property of another,” includes a liability for the conversion of property.</p> <p>Warehousemen (5) — Parties (24) — Joinder—Contracts of Suretyship — Actions—Instructions. In an action against the sureties upon the bond of a warehouseman in which the principal was not joined because he was insolvent, it is not error to give an instruction calling attention to the reason why he had not been joined.</p>