Volume 35 — Washington Reports

<p>Limitation op Actions — Three-Year Limitation Upon Contracts Not in Writing — Construction of Statute. The limitation of Bal. Code, § 4800, subd. 3, for the commencement of actions upon a contract “or liability,” express or implied, which is not in writing, refers only to contractual liabilities.</p> <p>Same — Damage to Real Property by Overflow — When Not a Trespass. An action for damages to real property through an overflow caused by the defendant’s negligent construction of an irrigating canal, lawfully built, but without sufficiently providing for carrying offi the surplus water or controlling the flow, is not an action for trespass within the purview of the three-year limitation for actions for "trespass upon real property,” since the damages are consequential only, and not direct, as required to create trespass at common law; and such action is barred if not commenced within two years from the time the damage accrued.</p> <p>Same. In such a case, even if the water was under control, negligently permitting it to escape would not create a forcible trespass, and the damages would be consequential, recoverable at common law in an action on the case only.</p>

, entered September 12, 1903, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a contract of guaranty.

, entered April 11, 1903, upon findings in favor of the defendants, dismissing an action to quiet title, after a trial on the merits before the court without a jury.

<p>Pleading — Demurrer—Waiver by Withdrawing — Objection to Any Evidence. The objection that the complaint does not state a cause of action, first raised by demurrer, is waived by the withdrawal of the demurrer and answering on the merits, and cannot be subsequently raised by an objection to any evidence.</p> <p>Municipal Corporations — Nuisance—Liability oe Town eor Maintenance oe Pesthouse — Ratification of Acts oe Oeeicers. In an action for damages for the establishment and maintenance of a nuisance on plaintiffs’ premises, by converting one of their dwellings into a pest house for smallpox patients, a motion for a nonsuit, on the theory that the town was not responsible for the acts of its officers, is properly overruled, where there was sufficient evidence to warrant a finding that the health officer acted with the knowledge and authority of the town council and that his acts were ratified by the town.</p> <p>Municipal Corporations — 'Actions — Presenting Claim fob Damages — When not Necessary. In an action for damages for the wrongful act of a town through its qualified agents in establishing a nuisance on plaintiffs’ premises, the presentation of a claim is not necessary before bringing suit against the town.</p>

, entered May 24, 1902, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the collection of a tax.

<p>Appeal from a judgment of the superior court for Whitman county, Chadwick, J., entered June 11, 1903, upon sustaining demurrers to a petition for a writ of mandate, dismissing the proceeding.</p>

Application filed in the supreme court March 21, 1904, for a writ of prohibition to prevent the threatened enforcement of an injunction by the superior court of Spokane county, Kennan, J.

, entered July 3, 1903, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries sustained by a pedestrian in falling through a railroad bridge.

Application filed in the supreme court April 4, 1904, for a writ of mandate to the superior court for Pierce county, Chapman, J.

<p>Certiorari to review an order of the superior court for King county, Bell, J., entered March 7, 1904, vacating an injunction issued February 28, 1904, and requiring an additional bond on the part of plaintiffs.</p>

, entered March 6, 1903, in favor of plaintiff, upon setting aside the verdict of a jury rendered in favor of the defendants, after a trial on the merits.

, entered January 13, 1903, upon sustaining a demurrer to the complaint, dismissing an action to recover an interest in real estate.

<p>Nuisance — Adjoining Property — Rights Running With Land —Continuing Offense. In an action to enjoin a continuing nuisance upon adjoining premises, rendering plaintiffs’ pror° ty unfit for residence purposes, it is immaterial that plaintiff purchased his property after the commencement of the nuisance, as the right of action existing in favor of plaintiffs’ grantors runs with the land, and, also, is a continuing offense, and lapse of time bars recovery only for a completed offense.</p> <p>Nuisance — Abatement—Disorderly Houses — Toleration by City no Defense. The fact that city officials tolerate the maintenance of bawdy houses is no defense to an action to abate the same as a nuisance specially injurious to adjoining property.</p> <p>Same — Abatement at Suit of Private Citizen — Special Injury. The owner of adjoining premises may sue to abate the maintenance of bawdy houses as a public nuisance specially injurious to his premises used for residence purposes, where the occupants are compelled to witness indecent conduct and listen to unseemly noises, the injury being special and different in kind from that suffered by the general public.</p> <p>Same — Injunction to Abate Disorderly House — Remedies at Law — Inadequacy. Injunction lies to abate the maintenance of a bawdy house as a public nuisance specially injurious to plaintiffs’ adjoining property used for residence purposes, the common law remedies of indictment and action on the case being inadequate, and this rule has not been changed by statute in this state.</p>

, entered April 13, 1903, upon the verdict of a jury rendered in favor of the plaintiffs, after a trial on the merits, for $2,000 damages to premises, caused by fumes from a smelter.

<p>Appeal — Dismissal—Costs. An appeal involving only a question of costs will be dismissed on motion.</p>

, entered June 6, 1903, vacating a judgment recovered hy the plaintiff, after a hearing on the merits of defendant’s petition to vacate the judgment for fraud in procuring it.

Application filed in tbe supreme court April 18, 1904, for a writ of prohibition to prevent the superior court of Thurston county, Linn, J., from permitting the withdrawal and amendment of a proposed statement of facts.

<p>Mandamus — When Lies — Issuance op Building Permit — Discretionary Powers op Budding Inspector — Appeal to Board op Public Works — Decision by Quasi Judicial Body — No Writ to Compel Change op Judgment. Where a building inspector must hear protests against the issuance of building permits, and refer reasonable objections to the board of public works, and his decisions are binding until reversed, and an appeal may be taken therefrom to said board, which hears the matter upon evidence taken, mandamus will not lie to compel such officers to issue a building permit for a livery stable, after objections and a hearing duly had before said board, upon which the board refused the permit, since the inspector and board exercise discretion, and have determined the matter in a judicial capacity, and mandamus does not lie to compel a change of judgment.</p> <p>Same — Action by Board — Construction op Ordinance. In such a case it cannot be claimed that the board has not acted, under an ordinance suspending proceedings until the matter is “adjusted” by the board, since that signifies simply a determination by the board.</p> <p>Same — Motion to Quash Writ — Demurrer—Conclusions Not Admitted. A motion to quash a writ of mandamus for want of sufficient facts performs the office of a demurrer, and only admits the facts stated, and not the conclusions drawn therefrom; and a conclusion that defendants acted capriciously and arbitrarily is unavailing in the absence of facts in the petition showing such action.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered August 29, 1903, upon a trial and conviction of the crime of robbery.</p>

, entered May 20, 1902, upon granting plaintiffs motion for a directed verdict, after a trial on the merits before tbe court and a jury.

<p>Appeal from a judgment of the superior court for "Whitman county, Chadwick, J., entered July 1, 1903, upon the verdict of a jury in favor of the defendants, after a trial on the merits.</p>

<p>Cbiminal Law — Receiving Deposit Aeter Insolvency oe Bank — Defenses—Individual Liability oe Oeeiceb. Const., art. 12, § 12, making officers of a bank individually responsible for receiving a deposit after knowledge that the bank was insolvent, does not preclude the legislature from passing a law making them criminally liable therefor.</p> <p>Same — Information—'Variance—Name of Depositor — Corporation Succeeding Partnership — Idem Sonans. Under an information against a bank officer for receiving, after tbe insolvency of tbe bank, a deposit from tbe B. G. Co., a corporation, it is a fatal variance to prove a deposit by B. & S., a copartnership, consisting of tbe incorporators of tbe B. G. Co., wbicb was not in existence at tbe time alleged, and tbe fact that tbe corporation was tbe successor of tbe copartnership .does not bring tbe two names within tbe principle of idem sonans.</p> <p>Same — Name of Depositor Necessary to Identify Deposit. Tbe fact that tbe bank was insolvent at a particular time, and that a deposit of $113 was made at that time, does not identify tbe act of such deposit with certainty, without tbe name of tbe depositor, within tbe provision of Bal. Code, § 6846, respecting material variances.</p>

, entered May 9, 1903, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to quiet title.

<p>Appeal from an order of the superior court for Spokane county, Richardson, J., entered September 1, 1903, upon overruling a motion to quash supplemental proceedings, ordering defendant to pay a judgment.</p>

, entered June 1, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, foreclosing a mechanics’ lien.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered January 11, 1904, upon .overruling a demurrer to the complaint, granting a writ of mandate, as prayed for.</p>

<p>Appeal from a judgment of tbe superior court for King county, Morris, J., entered February 11, 1903, upon tbe verdict of a jury in favor of tbe defendant, after a trial on tbe merits.</p>

, entered LTovember 17, 1903, upon sustaining a demurrer to the complaint, dismissing an action to restrain the collection of a tax.

<p>Appeal from a judgment of the superior court for Ohehalis county, Irwin, J., entered July 25, 1903, upon the verdict of a jury rendered in favor of th® plaintiff, after a trial on the merits.</p>

Application filed in the supreme court April 11, 1904, for a writ of mandate to compel the superior court for King county, Tallman, J., to fix the amount of a supersedeas bond on appeal.

<p>Application for a writ of review to review a judgment of the superior court for Lincoln county, Heal, J., entered May 3, 1904.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered February 21, 1903, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, for $750 damages by reason of personal indignities inflicted in ordering plaintiff from a public resort.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Prather, J., entered November 1, 1902, upon the verdict of a jury rendered in favor of the defendants.</p>

, entered April 14, 1903, after a trial on the merits, setting aside the verdict of a jury rendered in favor of the plaintiff, and granting a new trial.

, entered June 11, 1902, upon •granting a nonsuit, after a trial on the merits before the court and a jury, in an action for personal injuries sustained through a slide in a gravel pit.

<p>Criminal Law — Living Off Earnings of Prostitute — Scienter. Laws 1903, p. 320, § 2, making it a felony for any male person to accept or live ofE the earnings of a prostitute is not unconstitutional because it fails to require that the same be knowingly done.</p> <p>. Same — Information—Act Wilfully Committed — Knowledge. An information charging the crime of accepting the earnings of a prostitute is not insufficient for failure to allege that it was knowingly done, where it is alleged that the defendant wilfully committed the act.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered July 10, 1903, dismissing the action, upon striking the complaint.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Richardson, L, entered October 14, 1901, against sureties upon a hail bond, upon the motion of the state, after the failure of the accused to appear.</p>

<p>Taxation — Foreclosure oe Lien — Notice—Summons by Publication — Name oe Owner — Due Process oe Law. A summons by publication in a tax certificate foreclosure against nonresident owners need not name or be addressed to tbe real owner of the property, in order to constitute due process of law, and is sufficient under the statute if directed to the person in whose name the property was assessed, and to all persons, unknown, if any, having an interest in the property; since the proceeding is in rem, and the owner is bound to take notice of the tax and all steps towards its collection.</p> <p>Same — Requisites of Summons. The general statutes as to summons by publication are applicable to tax foreclosure proceedings under Laws,. 1901, p. 383, §1.</p> <p>Process — Summons—Date of First Publication. The requirement of rhe general statute that a summons for publication shall contain the date of the first publication is sufficiently eomplied with where immediately below the attorney’s signature the “Date of the first publication” is stated.</p> <p>Judgment — Vacation Within One Yeak — Good Cause to be Shown. Under Bal. Code, § 4880, a nonresident defendant, served by publication in a tax lien foreclosure, is not entitled to the vacation of the judgment, upon a tender of the tax and interest and application made within one year, but good cause therefor must be shown, and mere neglect to pay the taxes is not sufficient cause.</p>

<p>Appeal — Jurisdiction — Amount in Controversy — Value oe 'Personal Property Pound by Jury. In an action for the recovery of the possession of personal property, the value of the property in controversy, determining the jurisdiction of the supreme court on appeal, is the amount found hy the court or jury, and not the amount claimed in the complaint.</p> <p>Same — Value oe Personal Property-Damages For Detention. Upon an appeal from a judgment in favor of defendant in an action for the recovery of the possession of personal property, and for damages for its detention, alleged in the sum of $475, the value of the property as found hy the court or jury, and not the damages alleged, is the amount in controversy, and where the value fixed is $200, the appeal will he dismissed.</p>

<p>Appeal — Notice — Proof of Service — Signature op Party Without Proof of Genuineness^. An apppeal will not be dismissed because tbe only proof of service upon one of the co-parties not joining therein, and who had appeared in the action, was an admission of service over his own signature, without any proof of its genuiness, since the lower and appellate court must judicially notice the signature of any party that has appeared in the action.</p> <p>Landlord and Tenant —- Lease — Construction — Perpetual Renewals. An intention to create a perpetual lease by a clause for perpetual renewals must be clear and unequivocal, and is not shown by reserving a monthly rental terminating at a certain time “with the privilege at the same rate and terms each year thereafter from year to year,” where the lease contains only covenants applicable to a short fixed period without employing any terms - of perpetuity.</p>

<p>Champerty — Attorney and Client — Agreement to Pay Costs and Prosecute fob Contingent Fee. It is doubtful if the doctrine of champerty was ever in force in this state, and if it was, it was repealed by Bal. Code, § 5165, declaring that the compensation of attorneys shall be left to the parties, and hence an agreement whereby the attorney agrees to pay the costs and to prosecute a case for a percentage of the recovery is legal.</p> <p>Same — Damages to Defendant by Reason of Champertous Agreement — Malice — Malicious Prosecution. In an action brought against an attorney for damages for maliciously inciting an insolvent person to prosecute an unfounded action against the plaintiff, and which was prosecuted under a champertous agreement, it is proper to instruct that the plaintiff must show malice and want of probable cause, as in an action for malicious prosecution, and the action is not maintainable as a claim for damages for champerty irrespective of malice, since the doctrine of champerty does not prevail in this state.</p>

, entered December 14, 1903, upon tbe verdict of a jury rendered in favor of tbe plaintiff for $6,000 damages for personal injuries sustained by tbe breaking of a swamp book.

<p>Appeal — Statement op Facts — Affidavits Identified in Certificate — How Brought Up. Upon an appeal from an order ■made after a hearing upon affidavits, a statement of facts will not he struck out for the reason that it failed to incorporate -therein the affidavits, where, after amendments were proposed -to the statement, the court certified, upon notice, that the matter was heard upon the affidavits, which were specifically referred -to and attached to the record, and that they constituted all the ■evidence before the court.</p>

, entered June 13, 1904, declaring a public use upon a condemnation of certain lands for the purposes of a lighting plant, after a hearing on the merits, before the court without a jury.

, entered January 19, 1904, upon findings in favor of the defendant, after a trial before the court without a jury, in an action to recover for legal services.

, entered October 19, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, decreeing the rescission of a sale for fraud.

<p>Criminal Law — Bubglaby — Evidence — Competency. Where, in a prosecution for burglary, a witness testified that he saw the defendant enter a stable and take away two saddles, and that he notified the police by phone, it is not reversible error to sustain an objection, on cross-examination, to the question why witness did not notify the owners of the stable.</p> <p>Same — Plight. Upon a witness’ testifying that he saw defendant twenty-five miles from the place where the burglary was committed, and only eight hours thereafter, it is not error to permit the witness to answer the question, “Was defendant under arrest?” it not appearing that the witness was not qualified, and the primary purpose of the testimony being to show the fact of flight.</p> <p>Same. Where there is evidence that defendant committed a burglary at 2 o’clock A. M., and upon being discovered, disappeared, and admits that he walked twenty-five miles by 10 o’clock of the same morning, without giving any reason therefor, there was sufficient evidence of the flight of defendant to submit the fact to the jury.</p> <p>Criminal Law — Trial—Failure of Defendant to Testify— Instructions. An instruction that no inference of guilt shall arise against the accused because of his failure to testify in his own behalf is not objectionable because the court states that the statute makes it the duty of the judge to so instruct the jury.</p> <p>Criminal Law — Trial—Instructions as to Fact of Flight. An instruction that evidence of flight of the accused may be considered in determining his guilt, is not objectionable as a comment on the evidence.</p> <p>Same. Neither is such an instruction objectionable because it fails to explain that circumstances explaining the fact of flight may be considered, where there were no facts or circumstances to explain or excuse the flight.</p> <p>Burglary — Evidence—Sufficiency—Confession by Another — ■ Conflicting Evidence — New Trial. ■ A conviction of burglary will not be set aside as unwarranted by the evidence, because another states positively that he and not the defendant committed the crime, where, upon cross-examination, the witness was unable to state any of the surrounding circumstances, and admitted to having been convicted of a felony and to have occupied the same cell with defendant, and his evidence was squarely contradicted, since a new trial should not be awarded on conflicting evidence where there was evidence clearly sufficient to warrant the verdict.</p>

<p>Statutes — Title — Beneficial Associations — Regulation — Prescribing Minimum Rate. Laws 1901, p. 356, entitled. “An act regulating fraternal beneficiary societies,” does not violate the constitutional prohibition against a bill’s embracing more than one subject, by reason of the inclusion of § 12, p. 362, which fixes a minimum rate for insurance by all such associations thereafter authorized to transact business in this state, since “regulation” is broad enough to include said section.</p> <p>Beneficial Associations — Statutes — Construction — Certainty — Reference to Mortality Table — Minimum Rate. The act of 1901, p. 356, regulating beneficial societies by fixing a rate for assessment's not lower than as indicated by the table designated “Fraternal Congress Mortality Table,” is not objectionable as vague and uncertain, nor because the same belongs to the domain of evidence and ought to be subject to impeachment, since it is competent for the legislature to determine the rate by adopting such tables and incorporating them into the law.</p> <p>Same — Constitutional Law — Class Legislation — Equal Protection — Regulations Applying to New Corporations. Laws 1901, p. 356, regulating new corporations to he thereafter authorized to do business in this state, and making them a class unto themselves, does not violate the constitution, art. 1, § 12, forbidding the granting of special privileges to any citizen or class; nor does it violate art. 12, § 7, providing that no corporation outside the limits of the state shall he allowed to transact business on more favorable conditions than those prescribed for domestic corporations, where the law applies equally to all foreign and domestic corporations thereafter to he authorized to transact business, since it is only necessary that the laws operate alike upon all similarly situated.</p>

, entered [November 9, 1903, upon granting a nonsuit at the close of plaintiff’s case, in an action for damages by reason of ejection from a street car for nonpayment of fare.

<p>Appeal from a judgment of the superior court for Clallam county, Hatch, J., entered July 27, 1903, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action for an accounting and a balance due for commissions.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered June 20, 1903, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to cancel an assessment for local improvements.</p>

William H. Brinker, Judge ■ pro tempore, entered May 13, 1903, upon overruling a demurrer to the complaint, enjoining the county commissioners from entertaining a petition to establish a drainage district; and, also, from an order entered July 6, 1903, adjudging that the defendants had violated said judgment.

, entered May 25, 1903, upon the verdict of a jury rendered in favor of the plaintiff, in an. action for injuries sustained in alighting from a street •car.

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered June 16, 1903, upon findings in favor of the plaintiff, after a hearing before the court without a jury, dismissing a petition to vacate a judgment.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered ^November 9, 1903, upon sustaining a demurrer to the complaint, dismissing an action for damages for the sale to plaintiffs of poisonous milk, resulting in their arrest and prosecution.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered May 28, 1903, upon the verdict of a jux*y rendered in favor of the defendant, in an action of replevin, directing a return of the property, etc.</p>

<p>Appeal — Statement op Facts — Time foe Filing — Extension. Tbe time for filing a statement of facts may be extended by stipulation of tbe parties without any order of court, under Bal. Code, § 5062.</p> <p>Same — Time foe Cebtefying Statement of Facts. Bal. Code, § 5058, providing that there shall he no extension of time for filing a statement of facts beyond ninety days, limits the time for filing only, and not the time for its settlement by tbe court, for which no limit is prescribed.</p> <p>Same — Notice of Settlement — Sufficiency—Appeabance. A statement of facts will not be struck out for failure to give notice of the time of settlement of proposed amendments, where notice was once duly given, continuances taken, and later when both parties were in court the time was set for two days thereafter without objection on account of want of notice, and respondents’ counsel appeared at the hearing, and many of his amendments were adopted.</p> <p>Appeal — Dismissal — Recognizing Validity of Judgment — ■ Payment When not Voluntaey. An appeal will not he dismissed on the ground that the appellant recognized the validity of the judgment by making a partial payment, where it appears that, there being no supersedeas, tbe respondents issued garnishment proceedings under tbe judgment, and the payment was made thereunder, after a contest, since the same was not voluntary.</p> <p>Pleadings — Depabtube—Consistency of Complaint and Reply. Where a complaint alleges that a note for $400 belonging to the plaintiff came into the defendant’s possession through his employment as the plaintiff’s attorney, and alleges its conversion, and the answer sets up the defense that it was given to him in payment for his services, a reply admitting the allegations of the answer but averring that afterwards the defendant received other pay for his services and agreed to return the note, which he failed to do, is not inconsistent with the complaint, and a motion for judgment on the pleadings and an objection to any evidence on that account are properly overruled.</p> <p>Appeal — Trial—Instructions—Exceptions. Error cannot be predicated upon instructions where no exceptions thereto were taken.</p> <p>Appeal — Review—Verdict on Conflicting Evidence. The verdict of a jury upon conflicting testimony will not be disturbed on appeal.</p> <p>Attorney and Client — Action for Services — Evidence—Relevancy of Improper Conduct in Securing Admission to Practice. In an action against an attorney for the alleged conversion of money and notes belonging to his client, in which it is alleged and admitted that he is duly admitted to practice in this state, it is prejudicial error to permit cross-examination suggesting that he had resorted to bribery in order to obtain his admission, since it is immaterial and irrelevant and would have the effect of arousing the passions of the jury.</p> <p>Same — Evidence—Objection—Sufficiency. Where such cross-examination is objected to in the beginning and the court rules the same pertinent, further objection might increase the prejudice of the jury, and is not essential to secure a review of the ruling on appeal.</p>

, entered September 4, 1903, requiring the payment of the fees of a special administrator, and other sums, upon the allowance of his account, against the objection of the executors.

<p>Contracts — Construction—City Order — Payable from Certain Fund. An order, drawn upon a city by a contractor constructing water works, requesting payment of a certain sum “out of any moneys belonging to me, or that may hereafter he due me on the water works contract, either in the twenty per cent reserve, or on account of money to he due me on account of •final estimate,” is payable only out of said reserve or final estimate, and not out of semimonthly payments falling due as the work progressed.</p> <p>Municipal Corporations — Order Payable According to Its Terms — City Comptroller’s Admission. A city comptroller, •upon filing an order on the city, drawn by a contractor, has no •power to hind the city or create a liability beyond the terms of the order, by stating that it is all right and would be paid.</p> <p>Same — Pleading and Proof — Original Consideration for Order When Inadmissible. In an action upon an order, drawn by a contractor upon a city, seeking to recover thereon and not on the original consideration, evidence showing that such consideration was labor or material furnished the contractor, making it a preferred claim, is inadmissible, although such consideration is alleged in the complaint, as plaintiff cannot assert that the order is payable otherwise than according to its terms.</p>

<p>Indemnity — Building Contract — Agreement to Furnish all Material — Breach—Filing of Mechanics’ Lien — Suit on Bond Before Discharge of Lien. Where an indemnity bond guarantees the faithful performance of a building contract in which the contractors agree to furnish all the material for the building, the failure of the contractors to pay for the materials furnished, resulting in the filing of a mechanics’ lien, is a breach of the contract and the bond, entitling the owner to maintain a suit on the bond before the payment and discharge of the lien claim for materials.</p> <p>Same — Defenses—Failure to Pay Contractors — Credits for Balance Due Allowed on Claim Against Contractors. In an action upon a bond guaranteeing a building contract, in which the-owner seeks to recover the amount of a judgment establishing a mechanics’ lien for material furnished to the contractors, it is nq defense that the plaintiff had refused to pay the contractors two small items for a balance due and for extras, where due credits were received therefor by the contractors and inured to the benefit of the surety on the bond, having been deducted from the amount of the plaintiff’s claim.</p> <p>Same — Judgment Against Principal — Notice to the Surety to Defend — Estoppel.. Where a surety company guaranteed, by its bond, the faithful performance of a building contract in which the contractors agreed to furnish all the material, and is given due notice to defend an action commenced by materialmen to foreclose a lien for material furnished to the contractors, a judgment obtained in good faith against the contractors, the principals in the bond, establishing the claim and foreclosing the lien, is binding upon the surety, to the same extent that it hinds the contractors, and in an action on the bond estops the surety company from claiming that there was no breach of the contract.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 24, 1903, upon findings in favor of the defendant, after a trial on the merits before the court without a jury.</p>

<p>Compromise — Release oe Damages Secured by Fraud — Parties not on Equal Footing — Question eor Jury. In an action to recover for personal injuries sustained by an employe, whether the plaintiff was fraudulently misled and induced to sign a release of his damages is a question for the jury, where it appears that the company’s physician told the plaintiff that his injury was slight and he would he well in a short time, hut wrote a letter showing a serious injury, and when it appears that the plaintiff understood English imperfectly, and supposed he was signing a receipt for wages for the time he had lost, then paid to him, under a promise for future employment, and under the representations of the company’s claim agent that it was such receipt, and that from long service he placed reliance in the defendant’s agents and physician; since the jury could reasonably find that the parties did not stand upon an equal footing, and that the plaintiff was justified in placing confidence in the representations because of his long established relations with the company.</p> <p>Same — Expressions oe Opinion. In such a case it is for the jury to say whether the physician’s statements concerning the extent of the plaintiff’s injuries were mere expressions of opinion or statements of fact upon which the plaintiff had a right co rely.</p> <p>Same — Surrender oe Amount Paid on Settlement. It is not necessary to return a sum received in a settlement induced by fraud, before bringing action ón tbe demand, but the same maybe credited thereon.</p> <p>Master and Servant — Release Secured by Fraud — Servant’s Continuance oe Employment — Estoppel. Where a servant was induced, by an agreement for future employment and false representations respecting the extent of his injuries, to sign a release for personal injuries sustained through the negligence of the master, the fact that he shortly afterwards went back to work under representations of the master’s claim agent and physician that his injuries were slight, and worked and received wages for about a year and a half, does not militate against his recovery for the injuries received.</p>

<p>Dangerous Premises — Negligence—Principal and Agent— Duty to Repair — Liability op Agent in Charge oe Building— Owner a Nonresident. Agents in charge of a building, charged with the duty to make repairs, are liable for failure to keep the same in a safe condition, resulting in personal injuries to the child of a tenant, especially if the owner is a nonresident, or if service of process upon him is impossible.</p> <p>Same — Evidence—Authority op Agent — Implied prom Conduct. In an action against an agent of a nonresident owner of a building, for damages sustained by the child of a tenant, through want of repairs, the fact that certain other repairs were authorized and paid for by the agent, who collected the rents and had funds that could he applied thereto, coupled with the fact that the owner was a nonresident or absent, is admissible to show that the agent had authority to make repairs, where the authority was not in writing, since it may he proved by parol and the agency implied from the conduct of the parties.</p> <p>Same — Evidence op Agent’s Authority — Sufficiency—Question for Jury. In an action against agents alleged to he charged with the duty to make repairs, brought on behalf of the child of a tenant to recover for injuries sustained by the breaking of a rotten railing on tbe second floor, a nonsuit is properly refused, where it appears that the agents, who collected the rents, ordered and paid for similar repairs, and personally supervised the same, apparently on their own authority, and the owner was a nonresident, or, at least, was never seen about the premises.</p> <p>Trial — Instructions—Comment on Evidence. It is not reversible error to state the issues raised by the pleadings, although there may have been no evidence offered as to some of them, where the jury is properly instructed to base their findings entirely upon the evidence.</p> <p>Dangerous Premises — Negligence—Agent Charged with Duty to Repair — Evidence oe Authority — Sufficiency — Denial of Authority by Agent — Direction of Verdict. The fact that agents testify that they had no authority to- make repairs to a building except where it was specially given, and that none was given to repair a railing and banister, which was necessary for the safety of the occupants, does not warrant a directed verdict for the defendants, where the agents made some repairs apparently on their own authority, and testified, as to their authority, that the owner did not want to spend any more money than absolutely necessary, and where the janitor, under their orders, made and oversaw many small repairs such as securing the guard rail in question.</p>

<p>Brokers — Action to Recover Commission — Disclosing Identity of Purchaser — Complaint—Sufficiency. A complaint in an action to recover a real estate broker’s commission is not demurrable because of failure to allege that tbe agent disclosed to tbe defendant the identity of tbe purchaser, where it does not appear that be refused to do so, or that tbe defendant made demand therefor, or suffered any injury from tbe fact of concealment.</p> <p>Trial — Verdict—Conflicting Evidence. Tbe verdict of a jury will not be disturbed upon conflicting testimony, when supported by substantial evidence.</p> <p>Brokers — Action to Recover Commission — Evidence—Materiality of Other Deals. Where, in an action to recover commissions, plaintiff was asked on cross-examination what other property be bad ever been asked to sell for defendant, besides that involved in tbe suit, an objection on tbe ground of immateriality was properly sustained.</p> <p>Same — Value of Land. Evidence that tbe actual value of property is §20,000, and its rental value $1,500, is not admissible as tending to show the improbability of an agreement to sell for $18,000, since tbe disparity is not Sufficient to warrant this class of evidence.</p> <p>Same — Customary Commissions — Pleading and Proof — Instructions. It was proper to refuse to instruct that under tbe pleadings plaintiff could not recover unless tbe jury should find an express promise by defendant to pay tbe commission, where tbe allegations of tbe complaint are predicated upon both an express promise and an agreement to pay tbe usual and customary commission for like sales, and evidence was received in support thereof, it not appearing that defendant objected to tbe complaint on tbe ground that it alleged duplicate causes of action.</p>

<p>Evidence — Varying Writing by Parol — Contracts—Legality —Agreement as to Refund on Freight Shipped. Where the purchaser of stone agreed in writing to pay the freight, and alleges an oral agreement whereby the vendor guaranteed that the same should not exceed thirty cents per cwt., agreeing to pay any excess, or to turn over to the purchaser any amount that the railroad company might refund, oral evidence will not he held admissible to vary the terms of the written agreement, as in the case of an illegal contract, on account of the illegality of such refund, where the illegality of the contract was not pleaded, and the evidence touching such illegality was meager, and fails to show any intent to violate the law, except by indulging in forced construction or innuendo.</p> <p>Same — Contracts—Illegal Part Separable. If such an agreement were illegal, plaintiff could still recover on the balance of the contract, since the consideration is legal and the illegal provision is separable from the rest of the contract.</p> <p>Same — Construction op Contract — Oral Agreement Varying Terms of Writing. Where a written contract of sale provided that the purchaser will pay the freight charges “as agreed upon between you and I, the above price being f. o. b.,” parol evidence of an oral agreement that the seller would pay any freight charges in excess of a certain rate is inadmissible, as contradicting the writing.</p>

<p>Bridges — Negligence—Collapse Through Decay of Timbers— Notice of Defect — Duty of County — Instructions. In an action against a county for personal injuries caused by the collapse of a bridge through the decay of timbers, an instruction commencing with the statement that the county cannot be held liable unless the authorities had been notified of the defect, is not prejudicial error, where the instructions as a whole properly state the duty of the authorities to exercise 'care to detect and guard against such defects, and that it was not necessary to prove actual notice, and properly defining constructive notice.</p> <p>Appeal and Error — Review—Special Verdict — Harmless Error on Another Branch of Case. Where a special finding establishes that the county authorities had no notice of defects in a bridge, and there is a general verdict for the county, error committed on another branch of the case is harmless, as the county would not be liable in any event.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kichardson, J., entered February 23, 1903, upon the verdict of a jury rendered in favor of the plaintiff.</p>

, entered August 7, 1902, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, decreeing a divorce on the ground of cruelty.

<p>Appeal from a judgment of the superior court for Snohomish county, entered May 2, 1903, upon findings in favor of the plaintiff after a trial on the merits before the court without a jury, enjoining interference with plaintiff’s use of a stream for the purpose of floating shingle bolts.</p>

<p>Motion to substitute party, and counter motion to dismiss an appeal from a judgment of tbe superior court for King county, Albertson, J., entered. July 21, 1903, upon granting a nonsuit</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, L, entered October 14, 1903, upon findings in favor of the plaintiff after a trial upon the merits before the court without a jury, foreclosing the lien of a waterway company for its improvement of tide lands.</p>

, entered October 21, 1903, upon findings in favor of the defendant, granting a divorce upon a cross-complaint, after a trial on the merits before the court without a jury.

, entered July 20, 1903, dismissing on the merits an action to recover insurance upon a loss by fire, after a trial before the court, a jury being waived.

<p>Appeal from a judgment of the superior court for Lincoln county, Meal, J., entered January 12, 1904, upon findings in favor of the defendant, dismissing on the merits an action to compel the delivery of personal property, after a trial before the court without a jury.</p>

, entered June 24, 1903, upon the verdict of a jury rendered in favor of the plaintiff for $500 damages for injury to personal property.

, entered July 10, 1902, upon the verdict of a jury rendered in favor of the plaintiff for $2,100 for injuries sustained by the operator of a mangle in a laundry.

<p>Continuance — Criminal Law — Withdrawal of Attorney Five Days Before Trial — Discretion. Where an attorney, employed to defend against a charge of murder, withdrew from the case on the fifth day before trial, and the defense was entrusted to three other attorneys, it appearing that the facts of the case were simple and readily accessible, it was not an abuse of discretion for the trial court to deny defendant’s motion for a continuance upon the affidavits of his attorneys that it would he impossible for them to properly prepare for trial in the time remaining.</p> <p>Homicide — Different Degrees — Verdict for Lesser Degree Where Evidence Showed Higher Degree. Upon a trial for murder in the first degree In having caused the death of an infant by drowning, where the main issue was whether the death was caused by drowning or by an accidental overdose of chloroform, and there was sufficient evidence to support either theory, and the jury are instructed to find the defendant not guilty if they believe the death was caused by chloroform or entertain a reasonable doubt as to the drowning, a verdict of murder in the second degree should not he set aside upon the theory that the jury must find the defendant guilty of the first degree or not at all, and accused cannot complain that he was found guilty of a lesser degree than the evidence warranted.</p> <p>Homicide — Degrees of Offense — Instructions Proper as to Lesser Degree Although Evidence Showed First Degree Only. In a prosecution for murder in the first degree by causing the death of an infant by drowning, in which there was evidence that the defendant was guilty as charged and also that the death was accidental, the contention being that he was guilty of murder in the first degree or not at all, it is not error to instruct the jury that they may find the defendant guilty in the second degree or of manslaughter, since the deliberation and premeditation necessary to constitute the first degree, under the statute, do not necessarily follow from the facts showing malice, and must he submitted to and found by the jury, and the charge necessarily includes, and warrants a finding of, the lesser degrees.</p> <p>Criminal Law — Evidence—Experts—Opinion as to Proper Method of Conducting Post Mortem Examination. Where experts are asked hypothetical questions showing their ideas as to the proper method of conducting a post mortem examination to determine the cause of death, it is not error to sustain an objection to a question as to whether another course, omitting steps which they considered necessary, was a sufficient and thorough examination to determine the cause of death.</p> <p>Evidence — Experts — Hypothetical Question — Examiner’s Theory of Case. A hypothetical question calling for the opinion of an expert witness and based upon a detailed statement of the testimony of different witnesses, is not objectionable, although such testimony is not entirely harmonious, where the jury had a right to find the facts as stated, it being sufficient, if the question fairly states such facts as present the examiner’s theory of the case.</p> <p>Criminal Law — Evidence — Good Character — Instructions. Where evidence of defendant’s good reputation was not questioned as being the best evidence thereof, and its hearing upon the question of defendant’s guilt was properly explained by an instruction to the jury, it was not error to refuse an instruction that, where a witness testifies that he knows the defendant and-his associates in the community in which he lives, and that his character has never been questioned, such character is good.</p> <p>Same — Trial—Harmless Error in Instructions. Erroneous instructions authorizing the jury to find the defendant guilty of murder in the first degree, could not have been prejudicial where the verdict was guilty of the second degree.</p> <p>New Trial — Misconduct of Juror — Bias—Charge of Wilfully Qualifying. It is proper to deny a motion for new trial upon the ground of misconduct of the jury, upon affidavits showing prejudice by one of the jurors, and that he had wilfully qualified, where the charge is denied and is entirely overcome by other affidavits; and findings of the trial court in that respect reviewed and approved.</p> <p>New Trial — Newly Discovered Evidence. A motion for a new trial upon the ground of newly discovered evidence is properly denied where the evidence is wholly cumulative.</p>

<p>Taxation — Uniformity—Poll Tax Exempting Males oe Certain Ages, Females, and Members oe Volunteer Fire Companies — Acquiescence. Section 938, Bal. Code, providing that cities of the third class may levy upon and collect from every male inhabitant between certain ages, an annual street poll tax, but exempting therefrom members of volunteer fire companies, and city ordinances providing for the levy and collection of such a tax, and making the refusal to pay a misdemeanor, are unconstitutional and void, as in violation of art. 7, § 9, Const., requiring uniformity in taxation of persons and property; and long continued acquiescence therein cannot sanction the clear infraction of the law.</p>

, entered July 20, 1903, upon findings in favor of the plaintiff, after a trial before the court without a jury, enjoining the maintenance of a slaughter house as a public nuisance.

, entered June 30, 1903, upon the verdict of a jury rendered in favor of the plaintiff, for $20,000 damages for the death of plaintiff’s husband, occasioned by a fall from a street car.

, entered April 27, 1903, upon tie verdict of a jury rendered in favor of tie plaintiffs in an action upon an indemnity bond guaranteeing a building contract.

, entered September 9, 1902, upon granting a motion for a nonsuit, at the close of plaintiff’s case, at a trial before the court without a jury.

, entered February 13, 1903, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon contract for services.

<p>Limitation of Actions — Diversion of Special Fund for Local Improvements — Accrual of Right of Action. The right of action against a city for the wrongful diversion of a special fund provided for the payment of warrants, does not accrue until the holder of the warrant has notice of the diversion.</p> <p>Municipal Corporations — Special Fund for Local Improvements — Wrongful Diversion by City — Complaint—Sufficiency. The 'complaint in an action brought hy the holder of warrants drawn upon a special fund for local improvements, for the wrongful diversion hy the city of the special fund hy the payment out of their order of subsequent warrants, thereby exhausting the fund, fails to state facts sufficient to constitute a cause of action, when it fails to allege that the money diverted was sufficient to pay all of the warrants drawn on the special fund which were prior to the plaintiff’s warrants, or that plaintiff was prejudiced by being rightfully entitled to said money, or a portion thereof.</p>

, entered April 30, 1903, upon findings in favor of the plaintiff after a trial on the merits before the court without a jury, in an action for the specific performance of a contract to convey real property.

, entered June 6, 1903, allowing attorney’s fees and other disbursements, after a hearing upon a receiver’s final account.

, entered July 9, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for partition.

, entered June 4, 1903, in favor of the plaintiff, upon overruling a 'demurrer to the complaint, in an action to quiet title.

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered July 17, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, enjoining the obstruction and unlawful use of a logging stream.</p>

L. Miller, J., entered August 19, 1903, upon sustaining a demurrer to the complaint, dismissing an action of forcible entry and detainer.

<p>Appeal from a judgment of the superior court for Lewis county, Irwin, L, entered December 5, 1902, upon the verdict of a jury rendered in favor of plaintiff in an action for a broker’s commission.</p>

, entered March 30, 1903, upon granting a nonsuit at a trial before the court and a juiy, dismissing an action upon contract.

, entered April 4, 1903, upon findings in favor of the plaintiff after a trial on the merits before the court without a jury, enjoining- the obstruction of a public alley.

<p>Appeal from a judgment of the superior court for Pierce county, Snell, J., entered October 19, 1904.</p>

<p>Appeal from a judgment of the superior court for Asotin county, C. F. Miller, J., entered June 18, 1903.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered October 14, 1903.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Snell, J., entered October 19, 1904.</p>