Volume 39 — Washington Reports

<p>Domicile—At Hotel—Residence op Family in Another State. A man may establish his domicile by actual residence at a hotel, coupled with an intention to remain, irrespective of the residence of his family, left in another state for the purpose of educating his children.</p>

<p>Contracts — Letters — Acceptance oe Proposals — Time oe Delivery Not Agreed Upon. Where a proposition by letter to furnish certain materials for a building did not specify the time for delivery, and the letter accepting the proposal fixed the time within which delivery must be made, whereupon a reply was mailed not accepting the time of delivery but stating that the other party would be advised of the time in which delivery could be made, and six days later the advice was given that the material could not be furnished within the time fixed, no contract was entered into.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Neal, J., entered May 3, 1904, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, decreeing the specific performance of a contract to convey land.</p>

<p>Appeal—Dismissal—Return of Record for Correction—Mistake in Date of Service of Notice. On motion to dismiss an appeal because it appears that the bond on appeal was not filed within five days after the apparent date of service of the notice, the appellant is entitled to have the record returned to the lower court for the purpose of correcting a mistake in the record as to the date of service, where the record was sent up prior to the motion and without any opportunity to the appellant to correct it below.</p>

F. Miller, J., entered March 19, 1904, after a hearing upon affidavits, granting a temporary injunction, in an action to. restrain the obstruction of a stream.

, entered December 23, 1903, upon findings in favor of tbe plaintiff, after a trial on tbe merits before tbe court without a jury, in an action upon an indemnity bond.

, entered November 25, 1903, dismissing an action of ejectment, on granting a motion for a nonsuit at the close of plaintiff’s case.

<p>Fixtures—What Are—Furnace, Boiler and Pipes. A furnace and boiler in a theater building, resting upon solid foundations, and which, could not be removed without tearing away masonry, together with the pipes and radiators connected therewith, are fixtures and pass upon a sale of the realty.</p> <p>Same—Opera Chairs, Curtains, and Appliances in Theater. Opera chairs in a theater screwed to the floor, drop curtains, scenery, and the usual appliances, are fixtures and part of the realty within the criterion: (1) actual annexation to the realty or appurtenant</p> <p>thereto; (2) application to the purpose to which that part of the realty with which it is connected is appropriated; and (3) the intention of the party.</p> <p>Same—Evidence of Intention of Party. The surrender of a ticket box with the sale of a theater building, by the person who placed it therein, may be considered as indicative of his intention, upon the question of its annexation to the realty as a fixture.</p> <p>Same—Instructions.- Reading judicial decisions to the jury on the complex question of what constitutes a fixture is not to be commended.</p> <p>Same—Removal—Injury to Building and Value oe Article. Instructions to the jury on the subject of what constitutes a fixture should not give too much prominence to the injury to the building from removal and the value of the article removed, which are circumstances to be considered, but not controlling.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered February 20, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in falling from a dock.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered January 10, 1903, upon the verdict of a jury rendered in favor of the plaintiff in an action of ejectment.</p>

, entered February 27, 1901, upon findings in favor of the plaintiff after a trial before the court without a jury, in an action upon a promissory note.

, entered March 29, 1904, after a trial on the merits before the court without a jury, decreeing a divorce and awarding the custody of the children.

<p>Exemptions—Claim by Debtor—List oe Peopekty—Sufficiency. Where goods levied upon are claimed as exempt hy the debtor, under Bal. Code, § 5255, a second list by separate items of the property claimed as exempt is not necessary, where the sworn statement delivered to the officer contained a list of all the debtor’s property and claimed all of it as exempt.</p> <p>Same — Value of Peopekty — Complaint — Pleading and Peoof. Where property levied upon was claimed as exempt by the debtor, who admitted at the trial that part of it was not exempt because the judgment was for unpaid purchase money thereon, the fact that the debtor’s sworn satement, and also his complaint, alleged the value of all the property to be $250, does not confine his proof of the total value to such sum, or limit his recovery to the difference between such sum and the value of the non-exempt property; but he is entitled to show that exempt property of the value of $250 was levied upon and taken.</p>

, entered March 30, 1904, upon findings in favor of the defendants, after a trial before the court without a jury, dismissing an action of ejectment.

<p>Appeal from a judgment of the superior court for King county, Tallman, J„ entered December 3, 1903, in favor of the plaintiff, upon the pleadings and a stipulation, after refusing leave to file a supplemental answer, in an action to foreclose a mechanics’ lien.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J'., entered October 28, 1903, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained through the bite of a vicious dog.</p>

<p>Appeal from a judgment of the superior court for What-com county, Neterer, J., entered January 25, 1904, upon sustaining a demurrer to an answer, granting a mandatory injunction as prayed for in the complaint.</p>

, entered March 12, 1904, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action for personal injuries sustained by a stevedore while storing grain in the hold of a ship’.

<p>Appeal from a judgment of the superior court for Snohomish county, Denney, J., entered June 11, 1904, upon sustaining a demurrer to the complaint, dismissing an application for a writ of mandate.</p>

<p>Descent and Distribution—Homestead—Death oe Wipe Prior to Issuance of Patent—Rights of Children. Where a married man makes a homestead entry, and, upon the death of the wife before making final proof, a patent is issued in his name, the children, as heirs of the mother, acquire a one-half interest in the land.</p> <p>Adverse Possession—By Tenant in Common—Notice to CoteN' ant—Sufficiency—Estoppel. The acts of a father are sufficient to imply hostility of title and to give publicity to nis claim of ownership, so as to confer title to the homestead by adverse possession as against his daughter, where two years after the death of his wife in 1886, he made final proof and received a patent, and, believing himself to be'the sole owner of the land, immediately thereafter dedicated streets and platted city lots, put them on the market, conveying by warranty deed, and maintained exclusive control over the property, and where the daughter stood by and saw valuable improvements made by the purchasers, and by the city in the streets, making no claim to the property, although receiving legal advice in 1891 as to her rights, until 1898, when she made deeds of her interest, but only for the purpose of clouding the title and compelling the owners to bring actions to quiet title; no verbal or written notice being necessary to start the running of the statutes against a tenant in common.</p> <p>Same—Payment of Taxes—Purchaser at Mortgage Foreclosure, Entry under a mortgage foreclosure sale is sufficiently adverse to start the running of the statute against one not a party to the suit, under Bal. Code, §§ 5503, 5504, conferring title by adverse possession upon the payment of taxes for seven years under claim of title made in good faith.</p>

, entered May 27, 1904, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a mail clerk in a collision.

, entered August 8, 1904, upon the findings of the court and the advisory verdict of a jury, dismissing on tire merits an action for the rescission of a sale of timber.

<p>States—Contracts—Employment of Architect for State Capítol Annex—Not in Writing—State Capitol Commission—Powers. The employment of a supervising architect for the erection of the capítol annex is not required to be by written contract; since Laws 1893, p. 462, § 4, providing that all contracts made with the board of state capítol commissioners shall be in writing, indorsed “approved” by a majority of the hoard, etc., applies only to contracts for construction and material, and not to an agreement with the architect to be selected and employed under § 6 of the act, which provides that his compensation is to be fixed by, and that he is removable at the pleasure of, the board, the law further requiring the architect to give bond for the faithful performance of his duties, while § 7 requires contractors to give bond for the faithful performance of their contracts.</p> <p>Same—Extra Compensation—Modification of Contract—Clause Requiring Written Agreement. A written contract whereby the state capítol commission employed an architect for the erection of the capítol annex, which provides that the architect shall not be entitled to any extra compensation unless previously agreed upon in writing, does not preclude the contracting parties from thereafter modifying the contract or making a further contract for extra compensation without a writing; but the terms of the written contract may be considered in determining the fact of additional employment.</p>

, entered March 7, 1904, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by reason of a defect in a bridge.

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

<p>Motion to dismiss an appeal from a judgment of tbe superior court for King county, Morris, J., entered January 4, 1905.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered January 20, 1904, in favor of the plaintiff against a garnishee, upon motion for judgment on the pleadings.</p>

Application filed in the supreme court May 2, 1905, for a mandamus to compel the superior court for Pierce county, Huston, J., to fix the amount of a supersedeas bond, upon an appeal from a temporary injunction.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered October 12, 1901, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action upon account for goods sold and delivered.</p>

<p>Nuisance—Injunction to Abate Disorderly House—Adjoining Property Not Occupied—Complaint—Sumtciency. Injunction lies to abate the maintenance of a bawdy house as a public nuisance specially injurious to plaintiff’s vacant adjoining property, where it is alleged that plaintiff intends to at once build thereon for residence purposes; and, upon demurrer,' such allegation sufficiently shows the certainty of damage to authorize injunction; the remedies at law being inadequate.</p>

<p>Appeal from a judgment of tbe superior court for Kittitas county, Rudkin, J., entered May 7, 1904, upon findings in favor of tbe plaintiffs, in an action upon contract.</p>

, made September 27, 1904, adjudging the appellant guilty of contempt of court, upon his refusal to comply with an order to apologize.

, entered November 12, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to' enjoin the issuance of school district warrants.

<p>Appeal from a judgment of the superior court for Lewis county, Chapman, J., entered October 31, 1904, upon a trial and conviction of the crime of arson.</p>

, entered October 17, 1901, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an. action to set aside a tax deed,,

, entered June 20, 1904, after vacating a default judgment, dismissing an action to foreclose a tax lien, upon denying a motion to require the defendants to answer.

Application filed in the supreme court June 13, 1905, for a writ of habeas corpus, on behalf of a petitioner confined under an order of the superior court for Lewis county, Bice, J., entered May 9, 1905.

<p>Appeal from the judgment of the superior court for King county, Bell, J., entered March 3, 1904, in favor of the city, upon excluding all evidence offered, dismissing an appeal from a municipal assessment.</p>

<p>Appeal from an order of the superior court for King county, Griffin, J., entered November 17, 1904, reviving a judgment, upon motion of the judgment creditor.</p>

<p>Executors and Administrators—Fees—Taxation—Uniformity— Clerk’s Fees Based Upon Valuation of Estate—Property Tax— Validity. Laws 1903, p. 290, prescribing a scale of fees, based upon the valuation of the estate, to be paid to the clerk of the court upon filing the first papers in probate, imposes a charge in the nature of a property tax upon estates, which is void because not uniform or levied in proportion to value, where the fees exacted are paid into the general fund of the county and have no relation to the services rendered in the administration of the estate.</p> <p>Same—Statutes—Title of Act—Sufficiency. Laws 1903, p. 290, entitled an act relating to the fees of county officers, and which provides for an ad valorem charge upon estates in probate, called a clerk’s fee, in the nature of a property tax, violates art. 2, § 19 of the constitution providing that no bill shali embrace more than one subject, which shall be expressed in the title.</p>

, entered January 31, 1905, upon motion of the city, dismissing an appeal from a municipal assessment, for irregularities in perfecting the'appeal.

<p>Appeal—Objections to Pleadings—Waiver of Error. An objection that a complaint does not state facts sufficient to constitute a cause of action, cannot be first raised in the supreme court, where the defect is one that is capable of amendment, but is waived by answer and trial on the merits.</p>

, entered June 2, 1904, in favor of tbe defendants, after a trial before tbe court without a jury, dismissing on the merits an action to recover mining stock held in trust for plaintiff.

, entered October 3, 1904, after a hearing upon a writ of review, before the court without a jury, reversing and vacating the judgment of a justice of the peace.

<p>Appeal from a judgment of tbe superior court for Snohomish county, Denney, J., entered December 26, 1903, upon a trial and conviction of murder in the first degree.</p>

, entered November 1, 1904, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action to' quiet title.

<p>Death by Wrongful Act—Right of Action—Heirs Limited to Widow and Children—Stabe Decisis. Upon the principle of stare decisis, the word “heirs” in Bal. Code, § 4828, descriptive of the persons who may maintain actions for the wrongful death of another, is restricted to the widow and children of the deceased, and cannot he extended to the widower on the principle that widow and widower can he used interchangeably in the statute.</p> <p>Actions—Joinder—Fob Death by Wrongful Act and Funeral Expenses—Father and Son Plaintiffs. A right of action in favor of a widower for funeral expenses, against one who caused the wrongful death of his wife, cannot he joined with an action under the statute hy a minor son for the death of his mother.</p> <p>Pleading—Demurrer—Trial—Dismissal on Failure to Amend. Where two causes of action are improperly joined, and a demurrer on that ground is sustained, a plaintiff whose complaint stated a good cause of action cannot complain of the dismissal of the action upon sustaining the demurrer, when he elected not to amend his complaint.</p>

<p>Judgments—Revival—Change of Law—Contracts—Impairment of Obligation—Statutes—Repeal. Tbe act of 1897 repealing tbe law for tbe revival of judgments, was an impairment of tbe obligation of, and unconstitutional as to, existing contracts, and a judgment tbereon, 'although entered after tbe passage of tbe act, may be revived on motion notwithstanding tbe repealing statute.</p>

<p>Appeal from a judgment of the superior court for King county, Hatch, J., entered July 5, 1905, upon a trial and conviction of the crime of living in a state of adultery.</p>

<p>Appeal from a judgment of tbe superior court for King county, Griffin, J., entered July 20, 1904, upon findings in favor of tbe plaintiffs, after a trial before tbe court without a jury, in an action for tbe loss of goods jettisoned.</p> <p>Tbe findings of fact establish tbe consignment by tbe plaintiffs, and tbe acceptance by tbe defendant, of tbe goods, and their value, and include tbe following:</p> <p>“(7) Tbat near Midway Island on Stephen’s Pass on tbe trip to Alaska, while the defendant bad tbe said meats and property of plaintiffs on board said steamship, the defendant then and there threw said meat overboard into the waters of Stephen’s Pass, and then and there left said meat in the waters of said Stephen’s Pass.”</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered January 4, 1905, granting a writ of mandate as prayed for, upon overruling a demurrer to the petition.</p>

<p>Appeal from a judgment of the superior court for What-com county, Neterer, J., entered June 1, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover an interest in a mine.</p>

<p>Appeal from a judgment of tbe superior court for King county, Albertson, J., entered November 26, 1904, upon tbe verdict of a jury rendered in favor of tbe defendants, in an action for damages for tbe breach of a building contract.</p>

<p>Elections—Contest—Time for Taking—Declaring Result. The time for instituting an election contest, under Bal. Code, §§ 1410, 1430, does not commence to run until the county auditor has certified to the election returns and issued a notice of election.</p>

, entered February 21, 1903, in favor of the plaintiffs and against sureties upon the defendants’ appeal bond, after the dismissal by the supreme court of an appeal from a judgment of the same court.

<p>Criminal Law — Trial'—Unlawful Comment on the Pacts—■ Cross-Examination by Trial Judge. It is unlawful comment on the facts, within the meaning of the constitution, for the trial judge in a criminal case to cross-examine the accused, asking leading questions calculated to discredit the witness, and clearly conveying the idea to the jury that, in the opinion of the court, the accused is guilty and his defense not dona fide.</p>

, entered January 9, 1905, upon the verdict of a jury rendered in favor of tbe plaintiffs, for personal injuries sustained tbrougb tbe fall of a load of lumber, delivered by defendant to plaintiffs.

<p>Master and Servant—Negligence—Open and Obvious Dangers— Assumption or Risks. Where the dangers incident to the employment are alike open and obvious to the master and servant, the parties are upon an equality, and the master is not liable for an injury to the servant resulting therefrom.</p> <p>Appeal—Review—Error Favorable to Appellant—Trial—Instructions. The giving of an erroneous instruction, favorable to the appellant, is not prejudicial error although it conflicts with other correct instructions.</p> <p>Appeal—Review—New Trial—Errors of Law. The granting of a new trial solely for supposed error in an instruction, will be reversed on appeal for error of law' where the instruction was correct, no judicial discretion being involved.</p>

, entered September 21, 1904, in favor of the defendants, after a trial before the court without a jury, dismissing on the merits an action to enjoin the maintenance of a public highway.

<p>Appeal from a judgment of the superior court for Pierce county, Snell, J., entered dune 17, 1904, upon the verdict of a jury rendered in favor of the plaintiff for $5,000 damages for personal injuries sustained by a logger engaged in loading logs.</p>

, entered December 12, 1901, upon findings in favor of tbe defendant, after a trial before tbe court without a jury, granting a divorce and awarding property and tbe custody of children, upon a cross-complaint.

, entered December 1, 1903, dismissing an action of replevin, upon denying plaintiff’s motion for judgment on the record and election to stand thereon.

<p>Indemnity—Cost of Defending Suit—Liability Upon One of Several Causes. Where an indemnity company was required by its bond to defend actions for negligence at its own expense, and made defense to an action for negligence, in which was joined, also, a right of action upon a maritime contract for medical attendance, it is liable for all the costs and expense incurred, where the record fails to show what amount was expended to establish the defense to the cause of action upon the maritime contract.</p> <p>Estoppel—Indemnity—Bonds—Indemnity Against Personal Injuries Prom Negligence—Recovery on Maritime Contract—Surety’s Defense of Suit—Dismissal of Appeal With Promise to Pay Judgment. An indemnity company which, in defending an action for a loss, requests the dismissal of the appeal and promises to pay the judgment, is estopped to assert that it did not know the true nature of the claim and is not liable for the amount of the judgment, where it appears that, pursuant to its bond, it undertook the defense through attorneys selected by it, upon representations of the defendant, made in good faith, that the action was to recover for negligence in the operation of a ship, covered by the bond, although a right of action upon a maritime contract not covered by the bond was included, upon which judgment was entered, the claim for negligence being defeated.</p> <p>Estoppel—Intent. A design to mislead is not necessary to create an estoppel, where the conduct is such as to induce a reasonable man to act upon it, and the defendant was warranted in assuming that the unconditional order to dismiss the appeal was advisedly made. . .</p> <p>Same—Equity. , It cannot be urged to defeat the estoppel that the parties stood upon an equal footing, since the duty of making the defense devolved upon the indemnity company.</p> <p>Same—Knowledge of Facts—Negligence. In such a case, the estoppel is not defeated by reason of the fact that the company did not have full knowledge of the facts respecting the judgment, which was entered in Hawaii, where it had a copy of the libel and was in communication by means of which the fact could have been ascertained; since it was reasonably under obligations to ascertain the facts, and was more than ordinarily negligent in ordering the dismissal without doing so; and since it is bound by the knowledge of the attorneys, who only nominally represented the defendant.</p> <p>Same—Prejudice to Effect Estoppel. An abandonment of the right of appeal is presumed to be prejudicial, hence the estoppel was not without prejudice from the fact that the judgment was without error and would have been affirmed; since that fact cannot be demonstrated, and evidence to prove it is inadmissible.</p>

<p>Appeal from an order of the superior court for King county, Bell, J., entered September 14, 1904, appointing a receiver pendente lite upon the application of tbe plaintiff, after a bearing upon affidavits, in an action to foreclose a chattel mortgage.</p>

, entered December 22, 1904, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to quiet title.

; entered October 8, 1904, dismissing on the merits, an action for rescission on the ground of fraud, after a trial on the merits before the court without a jury.

<p>Appeal from a judgment of the superior court for King county, Morris, I., entered January 3, 1905, upon findings in favor of the plaintiff, in an action on contract, after a trial before the court without a jury.</p>

, entered April 26, 1904, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the death of a servant caught by a set screw in a revolving shaft.

, entered September 8, 1904, upon findings in favor of the plaintiffs, after a trial before the court, a jury being waived, in an action on, contract.

<p>Criminal Law—Burglary—Information—Varíanos. It is not a material variance that an information charged the burglary of the residence of F “situated and numbered 1206, S avenue,” and the proof showed that P occupied apartment No. 14 of a building the common entrance to which was number 1206, S avenue.</p>

<p>Pleading—Answer ■—• Admission — Construction — Inconsistent Averments. Express admissions in an answer control direct averments to the contrary, since the pleading must be construed most strongly against the pleader, and in the absence of an amendment evidence contrary to the admission is properly excluded.</p> <p>Pleadings—Amendment—Surprise—Continuance —• Discretion. Where plaintiff relies upon an express admission in the answer and insists upon claiming a surprise, a refusal to allow an amendment except upon condition of a continuance, is within the discretion of the court.</p> <p>Pleading—-Answer—Defenses—When Not Inconsistent—Contracts. In an action upon a written contract to recover commissions for the sale of machinery, a partial defense that the contract con-tamed a provision that ten per cent of any notes taken should he deducted from the commissions, if the note was not paid at maturity and expense was incurred, is not inconsistent with a defense setting up the statute of limitations, settlement, and that the sale was under another contract; and it is error to exclude evidence thereof.</p> <p>Evidence—Letters of Party—Failure to Reply—Attorneys— Authority. The failure of an attorney for collection to reply to letters asserting the debtor’s version of a contract, does not admit their contents, or render them admissible in evidence as implied admissions of his client.</p> <p>Appeal and Error — Review •—■ Trial — Comments •—• Harmless Error. Comments of the court as to the incompetency of letters, at the time of properly excluding them, is not prejudicial error.</p> <p>Evidence—Letters—Competency—Failure to Answer—Admissions—Witnesses—Impeachment. The failure to answer letters or deny the statements therein, does not amount to an admission of the statements, so as to make the letters admissible to impeach testimony to the effect that that the party never admitted the statements; and the letters are properly excluded, even if competent as independent evidence, when offered only for the purpose of impeachment, where they contain nothing contrary to the evidence of the witness to be impeached.</p> <p>Contracts—Evidence—Immaterial Contingencies. An oral contract is to be proved by what is said and done, and objections to questions as to what a party would or might have done if the con- ' tract had not been as claimed are properly sustained.</p> <p>Principal and Agent—Action for Commissions—Defenses—Evidence. Upon a claim by defendant that plaintiffs were to sell certain secondhand machinery and obtain commissions due them therefrom, evidence as to what was done with the machinery is admissible as a circumstance for the jury.</p> <p>Appeal—Instructions—-Harmless Error—Compromise and Settlement. No prejudice can result from an instruction to find for the appellant if the jury find that a “full and fair” settlement was made, when the fairness of the settlement was in no way questioned.</p> <p>Principal and Agent—Action eor Commissions—Cash Sales— Acceptance of Goods in Lieu of Cash. In an action for specified commissions on the sale of machinery, under a written contract authorizing only cash sales, the acceptance by the principal of secondhand machinery in lieu of the cash would be the equivalent of cash; and the failure to take cash cotild not be set up to defeat the agent’s commissions.</p> <p>Appeal—-Review—Verdict. A verdict upon directly conflicting evidence is conclusive on the supreme court.</p> <p>Appeal — Decision —■ Reduction oe Judgment. On reversing a judgment for error in excluding evidence of a partial defense in a specific sum, the respondent will he permitted to consent to a reduction of the judgment to the extent of such sum.</p>

, entered June 29, 1903, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages to property by the construction and operation of a railroad.

, entered January 4, 1905, upon overruling defendant’s motion to vacate an order of default, in an action to subject lands to the lien of judgments.

, entered September 29, 1904, upon findings in favor of the plaintiff, granting a writ of mandate to compel the plaintiff’s reinstatement as a city employee.

<p>Corporations—Stock—Re-issue—Sale by Corporation—Benefits Received—Ultra Vires. Where a promoter subscribed for stock in a corporation, which was issued to him as fully paid up, upon a nominal consideration, and he donated it to the corporation, whose trustees authorized its sale, the corporation may sell and re-issue it as fully paid up to an innocent purchaser at 10 per cent of its par value, and after receiving the benefits of the sale, the defense of ultra vires is not available.</p> <p>Same—Fraud—Sale of Stock—False Representations—Laches of Purchaser—Means of Investigation Not Open. Cne who is induced to purchase stock in a corporation through the false representations of its treasurer as to its assets, debts, and business, is not, as a matter of law, chargeable with notice of the fraud, nor guilty of laches in failing to discover it during three months service with the corporation, where the means of information were not open to him, but were fraudulently operated by the corporation, and its chief business was to make fraudulent sales of its own stock.</p> <p>Appeal—Review—Evidence—Harmless Error. In a case tried de novo on appeal, incompetent evidence will be disregarded and its admission is not ground for reversal.</p>

, entered July 13, 1904, upon granting a nonsuit, dismissing an action for personal injuries sustained by the driver of a wagon struck by a street car.

, entered April 26, 1904, upon, the verdict of a jury rendered in favor of the defendant by direction of the court, dismissing an action for personal injuries sustained in hauling a hand-car behind a freight train.

, entered December 13, 1904, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in consolidated actions for personal injuries received by employees of a lighterage company in unloading lumber from a ship.

Application filed in tbe supreme court June 10, 1905, for a writ restraining tbe commissioner of public lands from executing a lease of tide lands, and requiring him to submit the lease to sale at public auction.

, entered February 6, 1905, setting aside the verdict of a jury rendered in favor of the plaintiff, and granting a new trial.

, entered October 12, 1904, upon tbe verdict of a jury rendered in favor of tbe plaintiff, in an action for personal injuries (tbe mangling of a band in a sticker machine) sustained by a boy employed in a factory, contrary to tbe provisions of tbe factory act.

, entered January 4, 1905, upon findings in favor of executors, after a bearing upon tbe merits, settling tbeir final account and making distribution, of tbe estate.

<p>Appeal from a judgment of tbe superior court for Lincoln county, Neal, L, entered February 15, 1904, upon findings in favor of tbe plaintiff, after a trial on the merits before the court without a jury, decreeing a divorce, and awarding property and the custody of children.</p>

, entered March 6, 1905, upon a finding, in favor of the defendant, of a former adjudication, after a trial on the merits before the court without a jury, dismissing an action on contract.

, entered December 10, 1904, upon findings in favor of tbe plaintiff, after a trial before the court •without a jury, in an action brought by a master against his servant for indemnity.

, entered April 17, 1903, upon tbe verdict of a jury rendered in favor of tbe defendant, upon a counterclaim, in an action upon a promissory note.

, entered July 7, 1904, upon the verdiet of a jury, rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a mill, through coming in contact with a set screw upon a revolving shaft.

<p>Master and Servant—Negligence—Defective Saw—Evidence— Sufficiency. There is sufficient evidence to sustain a finding of defendant’s negligence where it appeared that the trim saw which plaintiff operated wobbled at times, and long prior to the accident had been warped, buckled, and otherwise injured, and was dangerous to use, and complaint had been made thereof.</p> <p>Same — Contributory Negligence — Burden of Proof — Instructions. A charge that the defense of contributory negligence must be proved by defendant, by a preponderance of the evidence, is not objectionable as charging that it must be proved by defendant’s evidence.</p> <p>Same—Damages—Injury Causing Loss of Time—No Evidence of Value of Time—Instructions—Necessity of Request. A charge allowing damages for loss of time during a disability occasioned by the loss of a thumb, where the evidence showed incapacity to work for six weeks, but did not show the value of plaintiff’s time, is not prejudicial error, where it appeared that the plaintiff was capable of and had been operating a trim saw for a living, especially in the absence of any request for different instructions.</p> <p>Damages—Excessive. A verdict for $830 damages for the loss of a thumb, cut off at the first joint, and for six weeks loss of time, is not excessive.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Belt, J., entered July 23, 1904, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, decreeing the specific performance of a contract to convey land, upon defendant’s counterclaim, in an action to recover possession of land.</p>

<p>Criminal Law—Practicing Dentistry Without License—Commission oe Offense Within One Year—Sufficiency of Evidence to Support Conviction—Appeal—Review—New Trial. A conviction for practicing dentistry without a license should be set aside as unwarranted by the testimony and against the overwhelming weight of the evidence, and a new trial should be ordered, where the unsupported evidence of the prosecuting witness was that it occurred at a certain office in Seattle in July, and the evidence of the defendant and of numerous witnesses was to the effect that defendant was not employed in that office in July, but had removed in June to Everett, and was practicing dentistry there during July, the burden being upon the prosecution to prove the commission pf the offehse within one year (Fullerton, J., dissenting).</p> <p>Same—Correction oe Malposition oe the Jaws—What Constitutes. The taking of an impression of jaws for the purpose of making false teeth and the fitting and adjustment of the same, constitutes a “correction of malposition of the jaws,” within the statute requiring a license for the practice of dentistry.</p> <p>Criminal Law—Appeal—Review oe Verdict. A verdict of guilty in a criminal case against the overwhelming weight of the evidence may he set aside on appeal where it does not subserve the ends of justice.</p>

<p>Trial—Verdict—Uncertainty-—Interest Added to Verdict. A verdict for a specified sum, “with, interest,” is not void for uncertainty, where the action was for money loaned at a certain date, and both the amount and date were admitted in the answer; and it was proper to add to the verdict interest at the legal rate from such date, and include it in the judgment.</p>

, entered December 3, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action upon a promissory note.

Cross-appeals from a judgment of the superior court for King county, Griffin, J., entered June 28, 1904, upon the verdict of a jury, rendered in favor of the plaintiffs against one of the defendants, and in favor of the other defendant, after a trial on the merits, in an action for the wrongful death of a brakeman who was assisting in making a flying switch.

, entered January 3, 1905, upon findings in favor of the defendant, after a trial before the eo-urt without a jury, dismissing on the merits an action for a conversion.

<p>Jurors—Challenge—Qualifications—Freeholders — Presumptions. It is not error to refuse to sustain a challenge to a juror because he is not a householder, since he is competent, under Laws 1901, p. 32, if he is a freeholder, which qualification will be presumed in aid of the judgment, unless the contrary affirmatively appears.</p> <p>Municipal Corporations—Negligence—Streets—Defect in Sidewalk—Notice—General Want of Repair. In an action for personal injuries sustained through a defective sidewalk, there was sufficient evidence of notice of the defect, where it appeared that the walk had been for a long time in a defective and dangerous condition, that the planks were decayed and liable to break, and that the city had made no effort to repair it, although it may have had no knowledge of the actual break in time to repair it.</p> <p>Appeal-—Review—Instructions—Error Cured. It is not error to refuse a requested instruction that is substantially given in the general charge.</p> <p>Municipal Corporations — Negligence — Streets — Liability for Defects in Walk Not Built by City. A city is liable for personal injuries caused by the defective condition of a si'dewalk in a public street, open to the use of the public, although the walk was built by private parties.</p>

, entered October 1, 1904, after a bearing on tbe merits, before tbe court in probate, removing an administrator, upon petition of tbe beirs.

, entered September 26, 1904, upon findings in favor of the defendants, after a trial before the court without a jury, quieting their title, in an action to recover possession of real estate.

, entered December 21, 1904, in favor of the plaintiff, granting an injunction against picketing, as prayed for, upon overruling a demurrer to the complaint.

<p>Master and Servant—Negligence—Employment oe Incompetent Fellow Servants—Notice oe Incompetency. There is no evidence upon which to submit to the jury an issue as to the negligence of the owner of a mill in employing an incompetent sawyer, where it appears that he was competent at the time he was employed; and that the employer had no knowledge of his becoming incompetent by reason of the use of intoxicating liquors, as alleged.</p> <p>Same—Vice Principal and Fellow Servants—Sawyer in Control oe One oe His Crew—Safe Place—Duty to Warn oe Agency Rendering Place Unsafe. A sawyer in control of a saw crew, while a fellow servant with the members of the crew in respect to their labor in working together in the common employment of converting logs into lumber, is nevertheless a vice principal as to the duty to give warning of his operation of the machinery, where it appears that the men were bound to obey his orders, that he ordered the plaintiff, a dogger, to remove a log from the head-block where it had been lodged by the operation of the nigger, a powerful machine under his control, and that, while the dogger was so engaged, with his hack to the sawyer, the sawyer, without warning, operated the machinery and applied the nigger to the log at a time when it was evident that the plaintiff’s position would thereby be rendered extremely dangerous, and from which injury to him resulted; since after ordering the servant into a dangerous position, it was the duty of the master to keep the place safe and to warn the servant of the use of an agency by the master which would render such place unsafe; the sawyer’s negligence in respect to such warning being the act of a vice principal, the peril of which was known to him as such, and unknown to the servant, and being the negligence that rendered the place unsafe.</p>

<p>Criminal -Law—Information—-Certainty—Date of Offense— Variance—-Rape. Under an information charging the commission of rape on a certain day, it is not a variance to prove that it occurred on a Sunday, one or two weeks prior thereto, the allegation as to time being immaterial except to fix a date within the period of the limitation of the statute; and such an information is not uncertain as to the crime charged.</p> <p>Same—Uncertainty as to Date—Several Offenses-—Election. Under an information charging .the commission of a rape on a certain day, no prejudice results from the fact that the evidence of the prosecuting witness showed a series of acts prior to the day named, each constituting the offense, but none on that day, when the prosecuting attorney was required to make an election as to which of the acts he would rely upon for a conviction, and the jury were instructed to acquit unless the accused was found to be guilty of such act.</p>

, entered April 6, 1904, in favor of the plaintiff, upon the default of the defendants to- appear at the trial, in an action upon a contractor’s statutory bond.

, entered October 27, 1904, appointing an administrator of an estate, after overruling objections to tbe jurisdiction and bearing tbe evidence on tbe merits.

<p>Appeal from a judgment of the superior court for Spokane county, Belt, J., entered October 3, 1904:, upon, the special verdict of a jury rendered in favor of the plaintiffs, after a trial on the merits, in an action on contract.</p>

, entered July 2, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malicious prosecution.

Miller, J., entered July 13, 1904, upon findings in favor of the plaintiff, after a. trial on the merits before the court upon stipulated facte, in an action of ejectment.

, entered December 7, 1904, upon findr ings in favor of the plaintiff, after a hearing on the merits, reviving a judgment.

<p>Appeal from a judgment of the superior court for Ding county, Albertson, J., entered December 6, 1904, upon the verdict of a jury rendered in favor of the plaintiff for $8,000, for personal injuries sustained in a fall from a sidewalk.</p>

<p>Original application for a writ of mandamus, filed in the supreme court, April 24, 1905, to compel the enforcement of an order for an .allowance to a widow. •</p>

, entered November 1, 1904, confirming a judgment of a justice of the peace, upon the final hearing of a writ of certiorari.

, entered November 2, 1904, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to compel the conveyance of real estate.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered December 13, 1904, upon findings in favor of the plaintiff, granting a divorce.</p>

, entered September 17, 1904, upon overruling a demurrer to an affirmative answer, dismissing' an action brought by a stockholder to set aside a corporate sale of mining property.

, entered September'30, 1904, upon findings in favor of the 'defendants, after a trial on the merits before the court without' a jury, dismissing an action ■brought by a stockholder to set aside a corporate sale of mining property.

, entered June 20, 1904, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action upon a promissory note.

, entered December 1, 1904, upon the verdict of a jury in favor of the plaintiff, for damages for the destruction of fish traps, etc.

, entered February 28, 1905, upon findings in favor of tbe plaintiffs, after a trial on tbe merits before tbe court without a jury, decreeing tbe specific performance of a contract to convey land.

, entered March 27, 1905, in favor of the relator, granting a peremptory writ of mandate to compel the levy of a municipal tax, upon overruling a demurrer to the application and a motion to quash the alternative writ.

, entered September 16, 1904, granting a nonsuit at tbe close of plaintiff’s case, in an action for personal injuries sustained by an employee while working under a suspended steel plate being put in position by an independent contractor.

<p>New Trial — Newly Discovered Evidence — When Properly Granted Although the New Evidence Is Partly Cumulative. It is not an abuse of discretion to grant a new trial for newly discovered evidence, after a verdict for the defendant, in an action for personal injuries sustained in a fall upon a wooden sidewalk, where six or eight witnesses had testified for the defendant to the effect that a cement walk had been laid and completed at the place in question at the time of the accident, and the newly discovered evidence was that of a city claim agent and of a city inspector, who investigated the case for the city and were not called as witnesses, and who Had admitted, and would testify, that at the time of their investigation of the case the cement walk had not been completed.</p> <p>Same—Diligence. In such a case lack of diligence is not shown by affidavits to the effect that the claim agent called upon the plaintiffs shortly after the accident and was directed to the place, where the affidavits are conflicting, and plaintiffs did not see him at the place or have any knowledge of the inspector.</p> <p>Same—Cumulative Evidence. Such testimony is not purely cumulative, since it establishes a condition at a subsequent date corroborative of the evidence of the plaintiffs as to the condition at the time of the accident.</p> <p>Same—Discretion of the Court. The granting of a new trial should not be reversed as an abuse of discretion, if the ends of justice are subserved, although not warranted under a strict construction of the procedure according to the letter of the law.</p> <p>Same — Procuring Affidavits of New Witnesses — Evidence Against Interest. Upon an application for a new trial on account of newly discovered evidence, it is a sufficient excuse for failure to produce the affidavits of the witnesses that they were in the employ of the adverse party and their evidence would be against the interest of their employer.</p>

<p>Eminent Domain—Public Use—Public Service Corporations— No Condemnation by Electric Light and Power Company Organized for Commercial Purposes—Public Necessity and Control. The right of eminent domain cannot be exercised in favor of an electric light and power corporation organized for the purpose of diverting water for power purposes for the generation of electricity to be sold commercially to manufactories, railways, and cities, in the absence of statutory regulation and guarantees of the public use and enjoyment of the property; since the same is not a public service corporation, and the use not a public use, and public necessity does not require it.2</p> <p>Same—Constitutional Authority for Using Waters for Manufacturing Purposes. Const., art. 21, declaring the use of waters for manufacturing purposes a public use, is in conflict with the due process clause of the Federal Constitution in so far as it may be construed to extend the right of eminent domain to take private property for uses essentially private.</p>

<p>Infants — Judgments—Vacation — Limitations. A judgment entered against infants upon proper service is not void, but voidable only, and cannot be attacked for fraud or error of law, under Bal. Code, § 5153, unless tbe proceeding is commenced within one year after tbe infants attain majority.</p> <p>Judgment—Findings—Res Judicata. Findings of fact and conclusions of law in a suit in which no final judgment was entered are not res judicata of tbe issues determined.</p> <p>Appeal — Review — Harmless Error — Erroneous Partition of Lands Lost in Foreclosure. Error in failing to vacate a decree of partition is not prejudicial, where tbe interests of all tbe parties were, subsequent to tbe partition, sold under mortgage foreclosures and there was nothing to authorize the vacation of the foreclosures.</p> <p>Subrogation—Loan to Pay Debts of Estate—When Not a Volunteer. A mortgagee who in good faith loans money to one to whom the lands of an estate had been partitioned, and the money is used to pay the debts of the estate, is not a mere volunteer and is entitled to be subrogated to the rights of the creditors, upon the failure of his security through defects in the partition proceedings.</p> <p>Same—Rb-Instating Redeemed Mortgage. Upon a defense to the foreclosure of a void mortgage given by a guardian without authority, the plaintiff may plead the fact of a former valid mortgage on the property, which was redeemed by the guardian with the money loaned on the mortgage in suit, and is entitled to an equitable subrogation reinstating the former mortgage.</p> <p>Infants'—Mortgage of Lands. The authority to sell an infant’s real estate does not give authority to mortgage it.</p>

, entered July 14, 1904, refusing a new trial, after a judgment entered upon the verdict of a jury, upon the failure of defendant to appear.

<p>Counties—County Commissioners—Grand Jury—No Authority to Employ Stenographer tor Grand Jury. A grand jury being a distinct body with powers defined by statute, the county commissioners have no power to employ a stenographer for the grand jury, no such person other than one of their number, chosen as clerk under Bal. Code, § 6810, being eligible to attend the sessions.</p>

Exceptions to the taxation of costs by the clerk of the supreme court, on the reversal of a judgment of the superior court for Spokane county.

<p>Appeal from a judgment of the superior court for King county, Neal, J., entered September 7, 1904, upon a trial and conviction of the offense of practicing dentistry without a license.</p>

<p>Appeal from a judgment of the superior court for King county, Neal, J., entered September 7, 1904, upon a trial and conviction of the offense of practicing dentistry without a license.</p>

, entered March 28, 1904, in favor of the city, upon excluding all evidence offered, dismissing an appeal from a city council’s levy of a special assessment.

, entered March 28, 1904, in favor of the city, upon excluding all evidence offered, dismissing an appeal from a city council’s levy of a special assessment.