Volume 34 — Washington Reports

<p>New Trial — Questions op Law Only — Reviewed Regardless op Discretion op Trial Court — Sales—Option—Payment. In an action to recover commissions for effecting a sale of mining property, where it appears at the trial that only an option had been secured and no sale made thereunder, and a nonsuit is granted, the subsequent granting of a new trial upon the sole ground that the sale had been effected by payment in full since the trial, raises only a question of law, and the ruling is subject to review on appeal without reference to the trial court’s discretion.</p> <p>New Trial — Nonsuit—Pleadings—Supplemental Complaint— New Cause op Action. After the granting of a nonsuit because no cause of action existed at the time of the trial, a new trial can not be granted or a supplemental complaint allowed to show a cause of action subsequently arising which did not exist when the action was commenced.</p> <p>Brokers — Sales — Option — Pleadings — Supplemental Complaint Introducing New Cause op Action. In an action to recover commissions for effecting a sale, a written contract optional in form, is not evidence of an actual sale, and a supplemental complaint showing a subsequent sale by payment in full under the option introduces a cause of action not existing before, and can not be sustained on the theory that it merely introduces new facts showing that the parties construed the transaction as an actual sale from the beginning.</p> <p>Brokers — Action eor Commissions — Option not a Sale— Part Payment Under an Option. A broker, whose contract is to effect a sale, is not entitled to commissions where the contract for the sale of mining property for $56,500 stipulates that the owner agrees to sell upon the payment of specified amounts at certain times, without any agreement on the part of the purchaser to pay the amounts, although $2,500 is paid for the privilege of the option, and possession is taken and improvements are made, and later $5,000 more is paid for an extension, the greater part of the price still being unpaid and there being no assurance that it would be paid.</p> <p>Same — Contracts—Ambiguity—Parol Evidence as to Construction. Such a contract is in no sense ambiguous and hence parol testimony as to the construction placed thereon by the parties would be inadmissible, and could not establish the fact that the parties considered it as a sale from the beginning.</p>

, entered February 20, 1903, upon sustaining a demurrer to the complaint, dismissing an action brought to secure the transfer of corporate stock.

<p>Appeal from an order of the superior court for King ■county, Morris, J., entered June 30, 1903, quashing the ■service of a summons upon a foreign corporation.</p>

<p>Compromise- — -Sale oe Goods in Settlement oe Account — Failure to Agree — Abandonment and Return oe Goods. Where upon the settlement of an account by the purchase of the debtor’s property, the balance of the purchase price is agreed upon, and the property is actually transferred, the debtor can not claim that the testimony conclusively shows a settlement, when it further appears that, upon coming to close the sale, the parties could not agree upon the parties to whom the balance due on the purchase price should be paid, and the creditor thereupon abandoned the settlement and returned the property to the person from whom it was received.</p> <p>Same- — Sale oe Stock of Goods in Bulk — Payment of Creditors. Upon the settlement of an account by the sale to the credit- or of the debtor’s entire stock of goods and fixtures of a saloon business, where the vendor was also indebted to others the purchaser is justified in refusing to carry out the settlement unless the balance due on the purchase price is applied to the payment of the other debts, in accordance with the law relating to the sale of stocks of goods in bulk.</p> <p>Compromise — Sale—Abandonment—Agent’s Authority to Accept Return of Goods. Where, immediately upon the abandonment of a settlement whereby the creditor was to purchase the debtor’s goods, the creditor returns the goods to the debtor’s nephew, from whom they were received, and who was in charge of the business at the time of the settlement, there is sufficient evidence to support the finding of the jury that the nephew was the debtor’s agent for the purpose of accepting a return of the goods.</p> <p>Verdict — Amount oe Assessment Favorable to Appellant— Right to Allege Error. Where a verdict for the plaintiff is less than the amount conceded to be due, if anything at all is due, the error is not prejudicial to the defendant, and he can not complain that it does not conform to the evidence.</p>

, entered July 3, 1903, after a trial upon the merits before the court without a jury, dismissing an action brought by a stockholder to enjoin the sale of the entire property of a corporation.

, entered July 27, 1903, upon the verdict of a jury rendered in favor of the plaintiff for $5,000 for personal injuries.

<p>Appeal from an order of the superior court for King county, Morris, J., entered May 5, 1903, quashing an award made by a board of arbitration.</p>

, entered January 5, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court- without a jury, decreeing the specific performance of a contract to convey land, with $500 damages for withholding the same.

<p>Cebtiobabi — Appointment op Guaedian — Review—'Adequate Remedy by Appeal. A writ of certiorari will not be granted to review tbe action of the superior court in appointing a guardian without jurisdiction, since there is an adequate remedy by appeal, and the delays incident to appeals do not affect the adequacy of the remedy.</p>

<p>Application for a writ of mandamus, filed in the supreme court September 10, 1903.</p>

J., entered September 26, 1903, sustaining a demurrer to one of plaintiff’s causes of action, and from that part of the judgment thereupon entered dismissing said cause.

<p>Master and Servant — -Parties—Joinder in Action for Negligence of Servant. An action for tortious negligence may be maintained jointly against a railroad company and the conductor of its train for injuries resulting from the negligent act of the conductor.</p> <p>Evidence — Harmless Error — Rule of Railroad Company— Fact Otherwise Established. The erroneous admission in evidence of a rule of a railroad company from which the jury would be led to believe that a conductor bad the. right to direct the movement of trains in passing, as senior conductor, is harmless where the conductor testifies on behalf of -the party objecting that he had such right in any event from the position of the trains in question.</p> <p>Trial — Special Verdict — Discretion. The submission of special interrogatories to the jury is discretionary, and is not reviewable on appeal.</p> <p>Railroads — Negligence in Passing of Trains — Fellow Servants — Engineer or Conductor in Charge of the Movement — • Instructions. When a number of freight trains had orders to pass at a certain siding which was not long enough to hold the trains going in either direction, necessitating as claimed, that they “saw by,” and a brakeman on an eastbound train is injured in a collision caused by the alleged negligence of the conductor on a westbound train in attempting such operation by running his train past the switch before the arrival of the second eastbound train; and it is claimed by the defendants that the engineer on the westbound train was responsible instead of the conductor in that he had control of the train, held:</p> <p>(1) That an instruction that said westbound engineer was a fellow servant of plaintiff is properly refused on the theory that, if he was responsible in having the control of the operation of the trains in passing, he was a vice-principal.</p> <p>(2) That the defendants’ view of the law relative to the responsibilities of said engineer was given in any event by an instruction to the effect that the plaintiff could not recover in case said engineer had the right to direct the movement of the train and the collision was due to his negligence.</p> <p>(3) That an instruction to the effect that the plaintiff could not recover if a flagman was sent out and the collision was due to the negligence of the eastbound engineer in failing to stop his train after being flagged, because there was no allegation of negligence on the part of the eastbound train crew, is favorable to the defendants and presents the case within the limitations established by the complaint.</p> <p>Verdict — Damages sor Personal Injuries — When Excessive. A verdict for $12,500 for injuries sustained by a brakeman in a collision is excessive where there was no loss of limb or dis-figuration, and no certainty of permanent injury, but only a weakness of the attachment of the tissue and muscles of the pelvic bone, which did not disqualify plaintiff from pursuing other callings which he had previously pursued; and the same should be set aside unless reduced to $8,000.</p>

<p>Application to the supreme court for a writ of habeas corpus, filed November 24-, 1903.</p>

, entered December 17, 1902, upon findings of fact and conclusions of law rendered in favor of the administrator, after a hearing upon the merits upon his final account and petition to sell real estate to pay debts.

<p>Appeal and Error — Trial—Evidence—Harmless Error on Trial de novo. It is not error for tbe trial court where a jury is waived, to receive evidence subject to objection, and make up findings without announcing any ruling thereon, since the cause is tried de novo on appeal and reversed only for the rejection of proper testimony, improper testimony being disregarded.</p> <p>Same. In a cause tried by a court without a jury, the fact that witnesses undertook to give reasons in support of positive statements, is not objectionable, where they can be separated.</p> <p>Sales — Made Through Broker — Action by Dealer Against Purchaser. Where merchandise was ordered through a broker, kn'owing that he would secure it from a dealer, the transaction, when completed, is a purchase direct from the dealer, who may maintain an action against the purchaser.</p> <p>Novation — Substitution Necessary — Sale oe Perishable Goods Without Waiver op Rights. Where perishable merchandise shipped to the dealer was rejected on account of quality, and the seller refused to accept a return of the goods, an agreement, pending the settlement, that the same might be sold at the best price obtainable, without waiving the rights of either party, is not a novation, since there is no substitution of one obligation for another.</p> <p>Tender — When Unconditional — Acceptance Not an Abandonment op Plainthtp’s Action — Costs. A conditional tender of money by defendant in full satisfaction of a claim, is waived by bringing the same into court without condition, and its acceptance by plaintiffs, while so unconditionally tendered, does not waive any rights, and cannot be pleaded in a supplemental answer as an abandonment of the right of action, since the tender only affects the question of costs.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered December 18, 1902, upon an agreed statement of facts, dismissing an action to recover an interest in real property.</p>

<p>Appeal and Error — Decision—Modification Upon Rehearing— Construction — Pleading—Necessity of Amendment — Dismissal of Action. Where plaintiff alleged error in refusing 'leave to amend its complaint to show an assignment to it of the contract sued on, and in its opinion the supreme court iu reversing the case at first states that the complaint is sufficient without alleging the assignment, hut upon a rehearing the opinion is modified and the conclusion reached that the lower court erred in refusing to allow the amendment, and it is ordered that such leave be granted, the effect of the decision is to make the amendment essential; and upon return of the case it is proper to dismiss the action upon the plaintiff’s declining to amend (Fullerton, C. J., dissenting).</p> <p>Same — Trial—Waiver of Amendment — Assignment for Trial — Dismissal and Nonsuit. In such a case the defendant’s submitting to an assignment for trial when no amendment had been made is not a waiver of the right to a dismissal upon plaintiff’s refusing to amend, such dismissal being equivalent to a nonsuit.</p> <p>Appeal from a judgment of the superior court for Spokane county, Belt, J., entered October 29, 1902, dismissing the action upon the plaintiff’s declining to amend its complaint in accordance with an opinion of the supreme court upon a former appeal. Affirmed.</p>

<p>Appeal from an order of the superior court for King county, Griffin, J., entered September 20, 1902, refusing to vacate a judgment.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Denney, L, entered December 6, 1902, after a trial before the court without a jury, quieting the plaintiffs’ title to timber sold, and enjoining its removal.</p>

, entered March 10, 1903, upon the findings and decision of the court in favor of the plaintiff after a trial on the merits, foreclosing the city’s lien for improvement assessments.

<p>Appeal — Bond—Application to Fix Amount op Supersedeas. The fact that an appeal from an order appointing a receiver had not been perfected is not ground for the trial judge to refuse to fix the amount of the supersedeas bond on appeal, when the time for taking an appeal had not yet expired, since Bal. Code § 6506 contemplates that an appeal may be perfected by the giving of one bond as an appeal and supersedeas bond in the sum fixed by the court.</p> <p>Appeal and Error — Receivers—Appointment—Stay oe Receivership upon Appeal. Where a temporary receiver is appointed ex parte until a hearing can be had, and continuances are taken, until finally an order is entered in form making the temporary appointment permanent, such order is appealable as a temporary appointment regardless of its form, entitling appellant to give a bond staying the receivership; since the ex parte appointment had no force after the day of hearing, and a continuance or failure to appoint at that time had the effect to discharge the receiver, making the subsequent order a temporary appointment that could be appealed from and stayed.</p>

, entered June 27, 1903, upon the verdict of a jury rendered in favor of the plaintiff in an action upon a contractor’s bond.

, entered April 11, 1903, upon the verdict of a jury rendered in favor of the plaintiff in an action for personal injuries.

, entered October 28, 1902, after a trial on the merits before the court without a jury, granting a partition and ordering a sale of real estate, subject to certain liens in favor of the defendant Malena Legg.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered June 9, 1902, upon the findings and decision of the court in favor of the defendants, dismissing on the merits an action for the specific performance of a contract to sell land.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered July 16, 1903, upon granting a nonsuit, dismissing an action to recover an excessive tax paid under protest.</p>

, entered September 11, 1903, after a trial on the merits before the court without a jury, dismissing’ an action for the specific performance of a contract to convey real estate.

<p>Quo Warranto — Against Municipal Corporations by Name— Testing Validity of Incorporation — Sufficiency of Complaint— Parties'. Quo warranto does not lie against a municipal corporation to test the validity of the corporation election, since if it has no legal existence it cannot he sued, and the suit must he against the persons assuming to act in a corporate capacity.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered March 26, 1903, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to foreclose chattel mortgages.</p>

L. Miller, J., entered April 3, 1903, upon the findings and decision of the court in favor of the defendants, dismissing on the merits an action for the specific performance of a contract to convey land.

, entered April 21, 1903, dismissing an action to recover the possession of real estate and to remove a cloud, upon the plaintiffs’ refusing to elect between two causes of action attempted to be- set up in the complaint.

<p>Appeal — Costs—Disbursements eob ' Making Tbanscbipt— Peb Folio Chabge. In taxing the costs of an appeal, not more than ten cents per folio can be allowed as disbursements for stenographer’s fees in making a transcript of the evidence, under Laws 1893, p. 132.</p> <p>Same — Taxation oe Costs — Estimating Folios in Tbanscbipt. Where no actúa] count of the folios was made, the clerk’s estimate made by counting the folios on several pages and taking the average should prevail over a general average for similar class of work.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered December 26,1902, upon finding’s in favor of the plaintiff for $1,475 damages for breach of contract, after a trial before the court, a jury being waived.</p>

Application to the supreme court filed January 16, 1904, for a writ of prohibition against the threatened punishment of the relators for contempt in disobeying an order of the superior court for King county, Bell, J., entered January 8, 1904, enjoining the sale of certain beer.

<p>Appeal — Dismissal—Motion fob New Trial. An appeal will not be dismissed for want of a motion for a new trial, where a paper filed and served was considered as such a motion without objection.</p> <p>Same — Necessity of. A motion for a new trial is not necessary to secure a review of errors involved in the disposition of the case and fully presented below.</p> <p>Master and Servant — Negligence—Custom to Guard Machine — Admissibility Under General Allegation. Proof of a general custom to place guards upon ripsaws is admissible under a general allegation of negligence in failing to provide a guard, after a promise so to do.</p> <p>Same — Proof of General Custom to Establish Negligence. Proof of a general custom to guard a ripsaw is admissible as tending to show whether appellant exercised reasonable care.</p> <p>Same — Evidence in Rebuttal — Custom to Contradict Defendant’s Experts. Where a plaintiff’s expert witness'es had testified that spreaders were necessary adjuncts to hand-fed ripsaws, and defendant’s experts testified that they were antiquated devices and were being generally discarded, it is not error to permit testimony in rebuttal to the effect that, upon examination of the mills and factories at the place in question, spreaders were found to be generally used.</p> <p>Appeal — Decision—Law of Case — Same Evidence as to Contributory Negligence. Upon the second appeal of a case, after substantially the same evidence, the decision on the first appeal that plaintiff was not guilty of contributory negligence becomes the law of the case, and is conclusive.</p> <p>Master and Servant — Operation of Ripsaw — Customary Manner — Contributory Negligence — Question for Jury. In an action for personal injuries received while operating a ripsaw, when it appears that the plaintiff was operating the machine in the customary manner, the question of his contributory negligence, in failing to remove a sliver so that it would not be caught by the saw, is for the jury.</p> <p>Same — Promise to Repair Defect — Assumption of Risks After Promise — Instructions. Instructions that an operator of a machine does not assume the risk of a defect after a promise to repair, and as to his duty in the premises, approved.</p> <p>Same — Age of Boy Operating Machine — Contributory Negligence — -Instructions—Particular Evidence. While the practice of trial courts in calling a jury’s attention to particular evidence is not to be commended, it is not necessarily reversible error to state that the jury may consider the age and experience of a boy injured while operating a ripsaw, upon the question of his contributory negligence.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered February 9, 1903, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained through a defect in the sidewalk.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Bfents, J., entered March 17, 1903, after a trial on the merits before the court without a jury, awarding plaintiffs the amount claimed under an equitable assignment of a loss on a fire insurance policy.</p>

L. Miller, J., entered March 13, 1903, after a trial before the court without a jury, dismissing on the merits an action to declare a trust and for an accounting.

<p>Appeal from an order of the superior court for Spokane county, Kennan, J., entered April 27, 1903, granting a temporary injunction against interference with, tbe affairs of a corporation.</p>

<p>Incest — Knowledge of Relationship — Constitutional Law— Due Process — Information Sufficient Without Charging Scienter. Bal. Code, §§ 7228, 7229, defining tbe crime of incest without including actual knowledge on tbe part of the defendant of his relationship to the particeps criminis, does not violate the fourteenth amendment as an attempt to deprive one of liberty without due process of law; and an information thereunder is sufficient without alleging scienter.</p> <p>Incest — Defense of Insanity — Evidence—Record of Guardianship — Exclusion of Cumulative Testimony. Upon the defense of insanity the exclusion of the record of the appointment of a guardian for the defendant as of unsound mind is not prejudicial error, where the record of the actual adjudication of insanity preceding the appointment was admitted, since it could have been no more than cumulative evidence.</p> <p>Same- — -Wife’s Appointment as Guardian — Competency. Such record, showing that defendant’s wife was still his guardian, is not admissible to show that she, who instigated the prosecution, was in duty bound to look after his defense, since her attitude can be better shown by other evidence.</p> <p>Trial — Instructions—Comment on Evidence. It is unlawful -comment on the evidence and reversible error for the court, upon a dispute as to what a witness had testified to upon a material point in the case, to declare in the presence of the jury, what such evidence was, and to state that the stenographer’s report thereof is wrong, and no distinction can be made because the remarks were not addressed to the jury.</p>

<p>Appeal by defendant from a portion of a judgment of the superior conrt for Adams county, Belt, J., entered December 31, 1901, making a division of property rights, upon awarding defendant a divorce, after a trial on the merits before the court without a jury.</p>

, entered February 24, 1902, upon the findings and decision of the court in favor of plaintiffs, after a trial on the merits before the court without a jury, in an action to foreclose a mechanics’ lien.

Application filed in the supreme court, January 12, 1904, for a writ of review to' review an order of the superior court for King county, Tallman, J., entered December 11, 1903, vacating a default judgment in a tax lien foreclosure.

<p>Public Lands — Deed or Statu — Findings as to Character or Tide Lands — Collateral Attack — Claim that Lands Sold as Second Class Tide Lands are Oyster Lands. A deed from the state purporting to convey all tide lands of the second class owned by the state abutting upon a certain described shore line, which was sold at the price fixed by law for second class tide lands, must be considered as made after a finding of the state land department as to the character of the land, nothing to the contrary appearing in the record, and includes all the abutting tide lands; and such deed being analogous to a patent is not subject to collateral attack by a subsequent application to purchase a portion of the same lands as oyster lands, upon the theory that the statutory definition of tide lands, Laws 1897, p. 230, § 4, excepts oyster lands, and that the deed conveyed, therefore, only such part of the abutting tide lands as were not suitable for the cultivation of oysters.</p>

<p>Receiving Stolen Property — Information—Sufficiency. An information charging that the defendent bought and received “stolen property,” knowing that it was stolen property, is sufficient without further alleging as a fact that it was stolen since the inference that it was stolen is in substance the statement of a fact, and the information enables a person of common understanding to know what was intended.</p> <p>Trial — Verdict on Conflicting Evidence Not Set Aside. A verdict of guilty will not be set aside upon conflicting testimony where the evidence for the state warrants the verdict.</p> <p>Trial — Order of Proof — Admission of Evidence in Rebuttal— Discretion of Court. The order of proof is largely in the discretion of the trial court, and unless injustice has been done, a case will not be reversed for the admission of evidence in rebuttal which might have been presented on the state’s case in chief.</p> <p>Receiving Stolen Property — Knowledge that Same was Stolen — Instructions. Upon a prosecution for receiving stolen goods, it is proper to instruct that defendant’s knowledge of thr theft need not be direct, and that it is sufficient if the circumstances were such as to make the defendant believe that they were stolen.</p> <p>Trial — Instructions—Weight of the Evidence of Each Witness. It is not error in instructing that it is the duty of the jury to give proper weight to the testimony of each witness to fail to give any definition of the meaning of proper weight.</p> <p>Jury — Misconduct—New Trial — Improper Remark not Influencing the Verdict. The fact that a juror stated in the jury room that the defendant had been tried several times on similar charges is not ground for a new trial on account of the improper conduct of a juror, where it does not appear that the remark had any influence upon the verdict.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered November 25, 1902, upon a trial and conviction of the crime of manslaughter.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered March 26, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, restraining the obstruction of navigation.</p>

, entered August 15, 1902, after a trial on the merits before the court without a jury, foreclosing delinquency tax certificates.

, entered April 21, 1903, upon .findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to recover possession of real estate and to quiet title.

, entered December 31, 1902, dismissing plaintiff’s petition for the vacation of a decree of divorce, after a trial on the merits before the court without a jury.

<p>Appeal from a judgment of the superior court for Skagit county, Neterer, J., entered January 26, 1903, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, setting aside an administrator’s sale of real estate, and denying defendants a lien for the purchase price and taxes paid.</p>

, entered April 7, 1902, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action for the recovery of real estate.

<p>Community Property — Liability for Husband’s Debt Contracted in Montana — Pleading Wife’s Exemption — Presumptions. Tbe presumption that a debt contracted by a husband in Montana is a community debt is not overcome by the wife’s pleading a Montana statute providing that the wife’s separate property is exempt from the husband’s debts, under certain conditions, without further setting up the necessary conditions to entitle her to the exemption from the liability.</p> <p>Appeal — Decision—Law of the Case — Husband and Wife— Action on Note Made in Montana — Defenses—Fobeclosube of Moetgage Befobe Recoveby on Note. After the appellate court has held on a former appeal that the plaintiff in an action on a promissory note made in Montana need not show that a mortgage securing the same has been foreclosed (the Montana statute providing that there shall be no recovery on the note until after foreclosure) , but that such fact and the laws of Montana relating tberato are matters of defense, it becomes the law of the case and it is error to grant a nonsuit for the failure of the plaintiff to prove the foreclosure of the mortgage.</p>

<p>Evidence — Varying Writing by Parol — Contemporaneous Oral Agreement — Oral Sale op Timber. Where a written bill of sale of a shingle mill makes no mention of standing timber, evidence of an oral sale of such timber made at the same time as the purchase of the mill does not contradict or vary the terms of the writing and is admissible, since the sale of the timber is not embraced in the writing.</p> <p>Sales — Op Standing Timber by Parol — License to Cut. The parol sale of standing timber, when acted upon, amounts to a license to cut and remove the timber, which thereupon becomes the property of the licensee.</p> <p>New Trial — Insufficiency of the Evidence — Discretion of Lower Court. Insufficiency of the evidence to sustain the verdict is ground for a new trial although there was some evidence to sustain the verdict, and the granting of a new trial upon conflcting evidence will not be disturbed except for abuse of discretion.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered May 26, 1903, upon the verdict of a jury in favor of the plaintiff for $900.</p>

, entered September 18, 1903, upon the verdict of a jury rendered in favor of the defendant by direction of the court, upon sustaining an objection to any evidence.

, entered March 2, 1903, upon sustaining a demurrer to affirmative defenses in an answer, in a proceeding for a mandamus to compel city officials to issue a warrant in satisfaction of a judgment against the city.

<p>Seaman — Action by Seaman rob Personal Injuries — Complaint in Tort — No Recovery Under Maritime Contract — Question First Raised on Appeal. In an action by a seaman for an injury while in the service of the ship where the complaint is in tort for the negligence of the defendant, without any element of maritime contract, the plaintiff, upon failing to establish negligence, is not entitled to recover for medical attendance and expenses incident to his recovery, under a maritime contract, when the question was first raised on appeal, since the case must be determined upon the theory on which it was tried below (Sanders v. Stimson Mill Co., 32 Wash. 627, overruled in part).</p> <p>Same — Actions—Joindeb of Action in Tobt and on Conteact. An action in tort for personal injuries to a seaman through negligence of his employer cannot he joined with an action on the maritime contract for medical attendance and expenses incident to his recovery:</p>

<p>Evidence — Whitten Contract — Obai, Proof and Memorandum. In an action upon a written contract alleged to he in the possesssion of the defendant, where the defendant upon demand refuses to produce it, hut denies that there is any such contract, the plaintiff may prove the contract orally and hy a memorandum from which he claims it was made.</p>

. L. Miller, J., entered July 2, 1903, after a trial on the merits before the court without a jury, decreeing the validity and due execution of a will.

<p>Husband and Wife — Parties—Action for Personal Injuries— Bstate of Deceased Husband — Interest in Special Damages. In an action for personal injuries of a permanent and continuing character sustained by a married woman, the estate of the husband, upon his death before suit, may be joined as a party plaintiff where the community appears to be interested in special damages for medical attendance and other disbursements.</p> <p>'Witnesses — Evidence oe Transactions -with Deceased — Party in Interest — Employee oe Street Car Company — Action eor Negligence oe Employee. Where a street railway company is sued for personal injuries by the estate of a deceased person, sustained through the negligence of the motorman in charge of the car at the time of the accident, such employee is not a party in interest, and may testify as to a conversation had between him and the deceased, relative to the accident, when he was not made a party, and was not notified to appear and defend.</p> <p>New Trial — Newly Discovered Evidence — Cumulative Testimony. It is not error to refuse a new trial for newly discovered evidence where it is merely cumulative and although it is cumulative only of the testimony of the party to the action.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, L, entered Time 16, 1903, upon the verdict of a jury rendered in favor of the plaintiff.</p>

, entered August 12, 1902, after a hearing before the court upon affidavits, ordering the sheriff to release property from a levy as exempt.

<p>Criminal Law — Ineoemation—Burglary—Attempt to Commit —Distinguished erom Possession oe Tools With Intent. An information charging accused with an attempt to commit the crime of burglary “haying in his possession” certain implements of burglary, charges a felony under Bal. Code, §7437 relating to attempts, and not merely the misdemeanor defined by Bal. Code, §7106, in haying such implements in possession with intent to commit such offense, since an attempt is charged as distinguished from mere intent, and the latter section expressly applies only where the circumstances do not amount to an attempt; and the allegation respecting possession of tools is surplusage.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, L, entered May 19, 1903, upon the verdict of a jury rendered in favor of the plaintiff.</p>

<p>Death by Weongful Act — Right of Action — Heibs Limited to Widow and Minor Children — Stare Decisis. The supreme court having six years ago adopted a construction of the statute respecting damages for a death hy wrongful act whereby “heirs” entitled to bring the action was held not to include collateral heirs biit only the widow and children, and having since adhered to the rule, and the legislature having since convened three times without making any change, the question should he considered at rest and the rule adhered to, notwithstanding that, as an original proposition, the court, as now constituted, would probably have adopted a different construction.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Martin, J., entered May 18, 1903, upon a trial and conviction of the crime of manslaughter.</p>

, entered March 19, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court, a jury being waived, awarding plaintiff possession of a public street.

<p>Cross appeals from a judgment of the superior court for Snohomish county, Denney, J., entered [November 19, 1902, upon the findings and decision of the court, after a trial on the merits before the court without a jury, in an action to restrain the payment of school warrants.</p>

, entered June 4, 1903, upon findings in favor of the defendants, after a trial on the meritá before the court without a jury, in an action to quiet title.

<p>Appeal from an order of the superior court for King county, Tallman, J., entered July 17, 1903, refusing to vacate a judgment entered July 12, 1901, foreclosing a lien for taxes.</p>

<p>Power of Attorney — Construction—Extent of Authority— Power to Sell Fixtures for Benefit of Creditors. A power of attorney from tbe owner of a bank authorizing an agent as attorney in fact to take charge of all property and effects of the principal, especially the properties known as said bank, to direct its policies, vote its stock, and, after specifically describing stocks and securities to be sold for the purpose of security for loans or advances, granting full authority to hypothecate, assign, and transfer any and all of the property above set forth, and to do all things advisable, in the discretion of the agent, whether the power is explicitly set forth or not, authorizes the sale of the safe and fixtures of the bank to a trustee for the benefit of its creditors.</p> <p>Same — Oral Evidence Explaining Written Power of Attorney. In such a case a cablegram to the attorney in fact directing him to take charge and make the best settlement for creditors possible, is not inadmissible as varying the terms of the written power, as it only tends to explain it, if any explanation was necessary.</p> <p>Appeal — Review—Harmless Error. The admission of immaterial evidence is harmless in a case tried de novo on appeal.</p>

, entered April 11, 1902, upon granting a nonsuit at a trial before the court and a jury, in an action for personal injuries sustained by a carpenter in a fall from defective staging.

F. Miller, J., entered June 5, 1908, upon the verdict of a jury rendered in favor of the plaintiff for $500 damages for personal injuries sustained in a fall through a trap door on defendant’s premises.

<p>Appeal from a judgment of the superior court for Thurston county, Linn, J., entered June 12, 1903, upon a trial and conviction of the crime of murder, in the first degree.</p>

<p>Trial — Verdict—Weight of Evidence. A verdict should not be set aside because against the weight of the evidence, where there is a substantial conflict on material points, especially where the trial judge who heard the witnesses refused to interfere.</p> <p>Carriers — 'Passenger Thrown from Street Car — 'Contributory Negligence — Intoxication of Plaintiff — Instructions. In an action by a passenger for personal injuries sustained by beiiig thrown from the running board of a street car, in which there was some evidence to show that the plaintiff was intoxicated at the time, it is not error to instruct that if the plaintiff used that degree of care incumbent upon him under the circumstances, then his intoxication would not prevent his recovery, and that the question was not whether he was intoxicated, but whether he exercised ordinary care, where in connection with all the instructions the effect was not that the jury could not consider intoxication as an element in determining the question of due care, but that the latter question was the real one to be determined and not merely the matter of the intoxication.</p> <p>Damages — Injuries to Husband — Services of Wife as Nurse— When can not be Included. In an action by a husband and wife for personal injuries sustained by the husband, it is error to include in the recovery $50 for the services of the wife as a nurse, where it appears that nothing was expended in that behalf and that the wife attended to her household duties at the same time, and there was no evidence of the value thereof; and a special finding therefor having been included in the verdict, the judgment should be reduced $50 in amount.</p>

<p>Motions to dismiss an appeal from a judgment of the superior court for King county, Tallman, J., entered October 20, 1903.</p>

, entered April 3, 1903, upon the verdict of a jury for $25,000, for injuries sustained by a coal miner by a delayed blast.

, entered February 3, 1903, upon the verdict of a jury rendered in favor of the plaintiffs, in an action to quiet title and recover possession of real property.

, entered June 15, 1903, dismissing a writ of certiorari to the city council, after a hearing before the court without a jury.

<p>Master and Servant — Negligence — Dangers From Vibration of Saw — Duty to Warn Inexperienced Employee. A master who employs a wholly inexperienced man to work in a shingle mill, and to remove slabs lodged near a saw, owes a greater duty to warn him of the danger of striking the saw and causing it to vibrate, than would he the case if the servant were experienced.</p> <p>Same — Assumption of Risk. It cannot he said as a matter of law that a wholly inexperienced servant assumes the risks from the vibration of a saw, when he testifies that he did not know it would vibrate and one expert testified that there was nothing to indicate that it would.</p> <p>Same — Injury to Inexperienced Servant in Removing Slabs From Saw — Defective Appliances — Light—Failure to Warn— Contributory Negligence — Knowledge of Vibration of Saw— Evidence — Sufficiency—Question for- Jury. It is a question for the jury as to whether the master was negligent in failing to give warning of the dangers, and in failing to provide sufficient light, whether the appliances were defective, and whether the plaintiff was guilty of contributory negligence, where it appears that he was set to work upon a knee-bolter and instructed to remove slabs that became lodged near the saw by inserting his hand into a six inch space beside the saw and through an opening twenty inches wide, that the space to be safe should have been thirty-six inches wide, that striking the saw with a slab in removing it would cause the saw to vibrate from side to side three or four inches, and three of plaintiff’s fingers were cut off by such vibration of tbe saw in an attempt to remove a slab in tbe manner that bad been illustrated to bim by tbe operator, whose directions tbe foreman bad instructed bim to follow, that tbe place was dark and an electric light over tbe saw Was not lighted, and that tbe plaintiff did not know that tbe saw would vibrate, and was wholly without experience, to tbe defendant’s knowledge, and received no warning of any dangers in tbe operation.</p> <p>Same — Servant Obeying Orders. Where a servant obeys orders to do a certain work, be has tbe right to rely upon tbe superior knowledge and skill of tbe master and to assume that he will not be exposed to unnecessary dangers.</p>

<p>Appeal from a judgment of the superior court for Columbia county, Chadwick, J., entered March 4, 1903, upon sustaining a demurrer to the complaint, dismissing an action brought to compel the allowance of claims against an estate.</p>

<p>Limitation or Actions — Covenant to Pay Taxes — Action Accrues When Taxes Become Due. Where the defendant, having agreed to purchase land of the plaintiff within two years, covenanted to pay all taxes that might be levied upon the property during said two years, and defaulted, and the plaintiff subsequently paid said taxes, the right of action upon the covenant to pay the taxes accrued when the said taxes became due, and the right of action is barred-after the lapse of six years; since the contract is not simply one of indemnity and is not postponed until the plaintiff has paid the same.</p>

, entered April 29, 1903, upon the verdict of a jury rendered in favor of the plaintiff for $600 for injuries sustained due to a defective sidewialjc.

Frank P. Lewis, judge pro tempore, entered April 17, 1902, denying a motion to vacate a judgment, after a hearing upon affidavits.

, entered August 11, 1903, upon findings in favor of the defendants, after a trial before the court without a jury, dismissing an action to subject real estate to execution sale.

<p>Appeal from a judgment of the superior court for Pierce county, Snell, J., entered Novemher 5, 1903, dismissing the action upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Rudkin, J., entered December 11, 1903, upon a trial and conviction of obtaining money by means of false pretenses.</p>

<p>Appeal from a judgment of the superior court for King •county, Griffin, J., entered March 18, 1903, upon the verdict of a jury in favor of the plaintiff, in an action of unlawful detainer.</p>

, entered December 12, 1903, in favor of defendants after a trial on the merits, dismissing the action at plaintiff’s cost.

, entered March 18, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court, a jury being waived.

<p>Taxation — Action to Foreclose County Delinquency Certificates — Description of Tracts — Sufficiency. In an action to foreclose the county’s lien for taxes under delinquency certificates, capital letters and figures standing alone may be used to describe the tracts, where they are abbreviations commonly understood in their relations to each other in the description of lands, in view of Bal. Code, § 1748, providing that letters and figures standing alone may be used to describe the tracts.</p> <p>Same — Variance. The use of the fractional in the summons is not a variance from the figure “4” in its algebraic exponent position elsewhere used in the proceedings to indicate subdivisions of a section, since both commonly indicate the same thing in descriptions.</p> <p>Same — Judgment—Certainty—Amount Indicated by Position ' of Figures in Columns. In a general proceeding to foreclose county delinquency tax certificates, the amount of the judgments may be shown by columns of figures, and a line drawn through the column may take the place of the decimal point, when the context shows that was the intention: and a tax lien judgment against many tracts of lands, in which the description of the tracts appears in one column, the amounts of the delinquent certificates in another, the 15 per cent interest in another, and the total amount of the judgments in another column, sufficiently designates the amounts of the judgments against the respective tracts of land in the corresponding or opposite columns.</p> <p>Same — Tax Certificates — Date of Issuance — Signature of Officer — Action When Not Premature. Where the county treasurer prepared certificate of delinquency books, computing interest to January 31, 1898, which were kept in his office and intended as certificates of delinquency as of that date, but which were not signed by him, and his successor in office, upon foreclosure on behalf of the county, adopted the certificates without computing the interest, making copies thereof, which he signed and filed in the clerk's office in May, 1901, the certificates for all essential purposes were issued at the time of their preparation, January 31, 1898, as the signature of the officer was not essential to the lien held by the county; and hence the law of 1901, p. 385, § 3, prohibiting the bringing of suit at the time upon certificates thereafter issued, has no application.</p> <p>Same — Date of Filing Certificates — Nunc Pro Tunc Order Changing Date — Estoppel by Failing to Object Below. Where in a tax foreclosure the court had jurisdiction of the cause, and by a nunc pro tunc order the filing mark on the certificates was changed from June 10, 1901, to May 9, 1901, which latter date was fifteen days before the first publication of the summons as required by the law, an objection that the certificates were not filed in time relates to a mere irregularity, and must be raised in the court below or the party is estopped under the provisions of Bal. Code, § 1767.</p> <p>Same — Estoppel op Owners — Notice by Publication — Tax Foreclosure a Proceeding in Rem. Under Laws 1901, p. 385, § 3, property owners are required to take notice of tax foreclosure proceedings, although the notice is only hy publication, and if the owner does not appear he is estopped by the judgment from raising any questions as to the regularity of the same, since the proceeding is in rem and not in personam.</p> <p>Same — Notice op Receipt op Books — Failure op Record to Show Publication. The failure of the record to show that the treasurer published notice of the receipt of the tax books, as required by Laws 1893, p. 353, § 70, does not invalidate a tax foreclosure, where it is not alleged that such notice was not in fact given, but only that no record thereof exists, as the absence of the record would be a mere irregularity.</p>

, entered April 8, 1903, granting a peremptory writ of mandamus, after a hearing on the merits before the court without a jury.

<p>Application for a writ of prohibition, filed in the supreme court. March 10, 1904, to prevent the threatened vacation of a judgment by the superior court of King county, Bell, J.</p>

, entered January 17, 1903, upon conflicting applications for the guardianship of a minor after a hearing on the merits.

<p>Municipal Corporations — Assessments for Local Improvements — Restriction to Fifty Per Cent of Assessed Value — Construction of Charter Provisions. The provision in the city charter and ordinances of Tacoma, p. 77, § 137, that no local improvement shall be made when the estimated cost thereof shall exceed fifty per cent of the assessed value of the property to be assessed, refers to the total assessed value of the property in the district as assessed for general taxation, and does not invalidate an assessment against particular lots because in excess of fifty per cent of the assessed valuation of such lots; since there is no preliminary provision for an appraisement of values, and the other provisions of the charter show that the estimated cost and the assessed value referred to are known and considered before the amount charged against any particular lot could be ascertained; and since the charge for local improvements is not based on said-assigned value, but upon the accruing benefits to the particular lots.</p> <p>Same — Estoppel of Property Owners — Objections to be Made Before City Council. Where property owners fail after notice to appear before the city council and object to local assessments, they are estopped to question the regularity of the assessment, if the total cost of the improvement was within the fifty per cent value of all the property to be assessed.</p>

, entered March 30, 1903, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, determining the rights of riparian owners to waters for purposes of irrigation.

, entered July 13, 1903, upon finding’s in favor of the plaintiff, after sustaining a demurrer to the answer, in an action upon a certificate of fraternal insurance.

<p>Contbacts — Execution—Bill oe Sale to Agent ob Tbustee— Liability oe Pbincipal Wheee Agency Is Disclosed. Where parties jointly entered into a contract with another, and for convenience provide for the making of a bill of sale to one of their number instead of to each individually, he becomes their trustee, and they can not escape liability upon the theory that he acted as their agent, and that principal and agent being both known to the other contracting party, exclusive credit to the agent released them from liability.</p> <p>Same — Evidence by Pabol to Show Agency oe Pabty Executing Contbact. Where one of several co-obligors for convenience closes up the contract by taking a bill of sale in his own name, but in fact as trustee for the others, parol evidence is admissible to show who the actual contracting parties were.</p> <p>Contbacts — Consteuctton—Contingency oe Issuance of Patent — Pleading. Where a payment under a contract was to be made when letters patent were granted upon an invention, the complaint sufficiently shows that the contingency has occurred by an allegation that the commissioner of patents made an order allowing the patent and directing that a patent issue on the order ol the interested parties therefor.</p>

<p>Appeal — Review—Findings on Conflicting Evidence. Where there is decided conflict on material points, the trial court’s decision as to the weight of the evidence should not be disturbed, where the trial court saw and heard the witnesses.</p> <p>Vendor and Purchaser — Advancement of Price for Benefit of Another — Resulting Trust — Deed as a Mortgage. Where a daughter advanced the price, $1,800, for premises purchased by her parents, taking a deed in her own name, under an oral agreement whereby they agreed to repay the purchase price within two years, with $15 per month as compensation for the loan, she occupies the double position of trustee of a resulting trust and mortgagee, holding the title for her parents and as security for the amount advanced.</p> <p>Same — Statute of Frauds — Parol Evidence. Such a resulting trust is excepted from the operation of the statute of frauds' and may be proved by parol evidence, where there is mutual obligation to pay and receive the money advanced.</p> <p>Same — Part Performance — Possession as Tenants. The fact that the purchasers were in possession as tenants of the former owner at the time of the agreement can not be urged to show that there was no taking of possession amounting to part , performance to take the ease out of the statute of frauds, where it further appears that, relying upon their agreement, the parties purchased and paid for an adjoining lot for use in connection with the premises, made improvements on the premises, and paid interest on the loan, .such expenditures and change in the situation creating an equitable estoppel against the plea of the statute of frauds requiring contracts for the purchase of real estate to' be in writing.</p> <p>Same — Agreement Not to Be Performed Within One Year. Such a trust relation and part performance defeats the claim that the agreement was an oral contract not to be performed within one year.</p>

<p>Appeal — Review—Point Raised by Prevailing Party. Upon an appeal by the plaintiff in a case tried and determined on the merits, the prevailing party may raise the objection that the case cannot be maintained in any event, since it would be idle to order a new trial for error if the action does not lie.</p> <p>Malicious Prosecution — Civil Action Without Arrest ob Seizure op Property. An action for.the malicious prosecution of a civil suit without probable cause will not lie when there was no arrest of the person or seizure of property therein, and no special injury sustained which would not necessarily result in all like prosecutions.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Snell, J., entered August 15, 1903.</p>