Volume 45 — Washington Reports

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered March 7, 1906, in favor of the plaintiff in an action to quiet title, upon sustaining a demurrer to affirmative defenses.</p>

<p>Appeal from a judgment of the superior court for Asotin county, Miller, J., entered April 19, 1906, upon a trial and conviction of the crime of maintaining a public nuisance.</p>

, entered December 7, 1905, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor in a shingle mill.

, entered February 26, 1906, upon findings in favor of defendant, after a trial on the merits before the court without a jury, in an action to set aside the foreclosure of a mortgage and the execution proceedings thereon.

Appeal by defendant from an order of the superior court for Jefferson county, Hatch J., entered February 15, 1906, granting his motion for a new trial and vacating a judgment on condition of the payment of costs.

, entered May 17, 1906, upon the verdict of a jury rendered in favor of the plaintiffs, for personal injuries sustained through a defective highway.

<p>Appeal and Error — Supersedeas—Custody oe Children Awarded on Habeas Corpus — Jurisdiction oe Supreme Court. Where the custody of minor children is awarded to their mother upon a hearing of habeas corpus proceedings, the filing of a supersedeas bond, upon appeal by adoptive parents, does not entitle them to resume custody of the children; since the welfare of the children is the primary consideration, and the supreme court acquires jurisdiction over that subject by virtue of the appeal.</p>

, entered February 2, 1906, in favor of the defendants, upon sustaining a demurrer to the amended complaint, dismissing an action to recover money paid by an agent for the purchase of farming lands.

, entered February 23, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action of forcible entry and detainer.

, entered May 9, 1906, appointing a guardian for the person of a minor, after a hearing upon the merits of counter applications therefor.

<p>Mandamus — For Satisfaction of Judgment — Tender—Pendency of Other Proceeding — Abatement. It is no defense to a proceeding in mandamus to compel a city to pay a judgment that, after the commencement of Jhe proceedings, the city deposited the balance due in court, accompanied by a petition that the same be l-efunded, as the relator was entitled to an unconditional payment, and the deposit and petition for refund could not bar a proceeding already pending.</p> <p>Judgment — Merger and Bar — Defenses That Might Have Been Litigated- — Evidence to Show Issues Tried — Eminent DomainSetoff. In condemnation proceedings for public purposes, a city’s lien for general taxes and street assessments is matter for setoff against damages for the land taken, and the award for damages is conclusive on that question as one that might have been litigated; and the city cannot contradict the judgment by showing that it sought to introduce evidence of the lien, but desisted and acquiesced in the defendant’s objection that the claim could be offset when the city came to pay the award.</p>

<p>Appeal from an order of the superior court for Spokane county, Kennan, J., entered February 8, 1906, dismissing on the merits a contest of a will.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Poindexter, J., entered December 28, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to determine adverse claims to a mining location.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Chapman, J., entered April 6, 1906, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for the destruction of a building and injury to the contents.</p>

, entered April IT, 1906, in disbarment proceedings, after a trial upon the merits before the court, suspending the defendant from practicing as an attorney at law.

, entered April 11, 1906, upon the verdict of a jury rendered in favor of the defendants, by direction of the court, in an action for personal injuries sustained by a brakeman by being struck by an engine.

, entered April 30, 1906, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in ail action for rescission.

, entered March 3, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to-quiet title.

, entered December 1, 1905, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action for the conversion of sawmill machinery.

, entered April 25, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action by a stockholder of a corporation to compel the issuance of a stock certificate, and for the allowance of dividends thereon.

, entered January 16, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover the price of goods sold and delivered.

, entered February 19, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to determine the beneficiary under a policy of life insurance.

<p>Appeal and Error — Record—Statement op Pacts — Time pob Piling. Where a statement of facts is not filed within the time limited by statute, it must be struck out, and the judgment will he affirmed if none of the assignments of error can he reviewed without its aid.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered December 11, 1905, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to establish the dividing line between two quarter sections of land.</p>

, entered May 7, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a policy of accident insurance.

, entered May 31, 1906, in favor of the defendant, upon sustaining a demurrer to the complaint, dismissing an action on a contract for the sale of land.

<p>Drains — Eminent Domain — Petition-—Description. In condemnation for an irrigation ditch, the quantity of land required is sufficiently stated in the petition when the route is definitely described and the dimensions of the ditch stated.</p> <p>Appeal — Review—Error Not Affecting Appellant. Upon appeal in condemnation proceedings, error cannot be urged relative to the service upon defendants who have not appealed, or in not calling a jury to determine the damages to the defaulting defendants.</p> <p>Appeal — Preservation of Grounds — Exceptions. An order striking exceptions to findings is proper where the record sustains its recitals that the exceptions were not filed within five days after service-of a copy.</p> <p>Appeal — Record—Statement of Facts — Extension of Time. The refusal to grant an extension of time for the filing of a. statement of facts will not be held an abuse of discretion where no sufficient reason had been shown for the extension, a change of attorneys or the fact of their nonresidence not being sufficient. .</p> <p>Eminent Domain — Proceedings—Parties. It is not error to refuse to dismiss a condemnation proceeding as to one party upon its appearing that he was not interested in any of the lands in his own right, where he came into the action on his own initiative alleging that he owned a portion of the lands.</p> <p>Eminent Domain — Decree—Payment of Award. Objection to a decree in condemnation proceedings in that it failed to fix the time within which the petitioner shall pay the award is immaterial where, by a supplemental transcript, it appears that the award has been paid into court.</p>

, entered May 10, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover commissions.

<p>Contracts — Parol Evidence to Contradict Writing. Parol evidence is admissible to show that a written contract for the sale of goods has been changed, and did not correspond with the contract signed or the one actually made.</p> <p>Same — Sufficiency. The uncontradicted evidence of two witnesses that an order for the sale of goods was signed as the agent was about to leave for a train, under an agreement that its terms would be changed to correspond with the agreement of the parties, is sufficient to overcome the written agreement, where the writing did not correspond to the agreement sought to be enforced.</p> <p>Sales — Definiteness—Rescission by Buyer — Question for Jury. In an action for goods sold and delivered upon an indefinite order, taken by a salesman, leaving much to the discretion of the vendor in filling it, the question whether the buyer was justified in refusing to accept the goods on the ground that they were not the goods ordered is for the jury, where there was evidence to the effect that the articles most desired and which the buyer insisted should constitute the bulk of the order were omitted entirely, leaving the entire order to consist of jewelry which he particularly informed the salesman he had little use for.</p> <p>Sales — Acceptance. Taking goods from a carrier, and holding them subject to the vendor’s order, does not amount to an acceptance of the goods, although the goods were first returned to the carrier to be returned to the vendor, where the carrier threatened to sell for shipment and storage charges.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered March SO, 1906, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a contract of employment.</p>

<p>Carriers — Collision op Street Cars — -Instructions. In an action for personal injuries sustained by a passenger in a street car collision, where the collision was admitted, and the main issue was as to the extent of the injury, it is not misleading- or error to instruct the jury to the effect that the speed of the cars was material only to establish the force of the collision and that such force was material only to establish the probability and extent of the injury.</p> <p>Evidence — Weight and Sufficiency — Instructions as to Preponderance. An instruction to the effect that the preponderance of the evidence is the “best evidence — -that which appeals to your intelligence — the evidence which satisfies your minds,” etc., is not error where it is evident that the expression “best” was not used in its technical sense, and did not mislead the jury.</p> <p>Trial — Misconduct of Parties — Pleading—Prejudicial Statements. It is not ground for reversal that the complaint in a personal injury case contained many allegations calculated to prejudice the jury, as to which there was no intention of offering proof, where such abuse was not flagrant or its prejudicial effect plainly evident.</p>

' Appeal from a judgment of the superior court for Spokane county, Poindexter, J., entered March 81, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee at the intersection of a tramway track, through being struck by a rail torn from the track by a passing train.

<p>Jurors — Prejudice—Challenge. It is'proper to deny a challenge to a juror who stated that his mind was influenced by the fact that the defendants were charged with crime, giving him an opinion that they were guilty which it would take evidence to remove, where the answers were elicited in a discussion of abstract principles of law which it was evident he did not understand, and not in examining him in relation to his knowledge of the case or prejudice in regard to the guilt or innocence of the accused, and where, upon explanation, he properly expressed his capability to act upon the evidence and the law as given by the court, and knew nothing of the case and was not prejudiced against the defendants or the crime charged (Root, Crow, and Hadley, JJ., dissent).</p>

<p>Appeal from a judgment of the superior court for Spokane county, Poindexter, J., entered January 22, 1906, upon the verdict of a jury in favor of the plaintiff, in an action for personal injuries sustained in colliding with a street car.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered January 9, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to effect an equitable redemption of real estate from execution sale.</p>

, entered November 27, 1905, upon findings in favor of the plaintiff, after a trial on the merits, before the court without a jury, in an action to set aside a. tax sale and deed, and to quiet title.

<p>Divorce — Grounds—Nonsupport—Evidence—Sufficiency. Where, in an action for a divorce, the evidence shows an absolute abandonment for more than one year, and failure to provide any support for wife or children, by a man of capacity and well able so to do, bringing the case completely within the terms of the statute, there is no discretion, and it is error to refuse a divorce on the ground that the wife had not demanded support, or urged his return, and appeared indifferent as to his maintaining or living with her.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Linn, J., entered January 6, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jui'y, in an action to cancel a deed and to quiet title.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered January 8, 1906, upon the verdict of a jury rendered in favor of the defendants, in an action to recover upon two promissory notes.</p>

, entered June 8, 1906, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to remove a cloud from title.

Application filed in the supreme court December 26, 1906, for. a writ of mandate to compel the superior court for Spokane county, Poindexter, J., to proceed with the trial of an action for the annulment of a void marriage.

, entered April 9, 1906, dismissing an action to recover possession of real estate sold for taxes, after a trial before the court without a jury.

, entered October 25, 1905, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained by a slasherman through contact with unguarded cogs in a sawmill.

, entered March 29, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a fire insurance policy.

, entered October 31, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover the value of livestock shipped on defendant’s railroad.

<p>Appeal from a judgment of the superior court for Spokane county, Belt, J., entered May 20, 1902, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to recover possession and quiet title to real estate.</p>

, entered January 17, 1906, after a hearing on the merits, granting a writ of mandate to compel the mayor and council of a city to canvass election returns.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered October 16, 1905, upon the verdict of a jury rendered in favor of the defendant by direction of the court, after a trial on the merits, in an action for personal injuries sustained by a sawyer in a sawmill.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Carey, J., entered May 18, 1906, upon findings in favor .of the. plaintiff, after a trial on the merits before the court without a jury, in an action upon a promissory note.</p>

Application filed in the supreme court September 24, 1906, for a writ of prohibition to prevent the superior court for King county, Frater, J., from adjudging the insanity and dirccting tlie deportation of two nonresidents.

<p>Appeal from ail order of the superior court for What-com county, Joiner, J., entered September 28, 1906, overruling the defendant’s motion to set aside a judgment, and for a new trial.</p>

<p>Trusts — Express Trusts — Evidence to Establish — Sufficiency —Fraud—Quieting Title. In an action to quiet title brought to establish a trust by the owner of the land, who had negotiated a sale, against an alleged trustee holding the legal title and the purchasers, who had attempted to take title from such- trustee, there is sufficient evidence to support findings in favor of the plaintiff where it appears that the plaintiff had purchased and paid for the land, title being taken in the name of the trustee, that the trustee made no specific claim to the property, and that all the negotiations for the sale had been, between the plaintiff and the purchasers, who had paid plaintiff one-half the purchase price and given a note and mortgage to plaintiff for the balance, and who had subsequently taken title from the trustee giving a new note and mortgage without requiring a surrender of the first note, and it appearing that there was some evidence that the purchasers were informed as to the real ownership of the property.</p>

<p>Eminent Domain — Railroads—Crossing Other Roads — Public Necessity. A railroad company is not entitled to condemn a right of way across the terminal grounds and spur tracks of another company, already devoted to -a public use, and in such a manner as to interfere with such prior use, by virtue of Bal. Code, § 4335, providing that every railroad shall have the power to cross or join the tracks of any other road, by the right of eminent domain if they cannot agree, where it appears that there is a reasonable route either to the north or south of such terminal grounds, the cost of which would only be $28,000 as compared to $10,000 for the route selected; as public necessity is essential in such a case and no reasonable necessity appears.-</p>

, entered May 19, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for the wrongful death of a longshoreman who was assisting in loading steel plates on board a vessel.

<p>Appeal from a judgment of the superior court for Spokane county, Carey, J., entered July 7, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for conversion.</p>

<p>Auctions — Counties—Sale op Real Property — Refusal to Accept Bid. A bid for county real estate, offered for sale at public auction, does not constitute a contract which can be specifically enforced, where the county treasurer refused to accept the bid or strike off the property.</p> <p>Same — Discretion op Officer. Upon an auction sale of county real property, the county treasurer has discretionary power to refuse to accept a bid which in his judgment is not made in good faith or would sacrifice the property.</p>

, entered January 16, 1906, upon stipulated facts in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover wages due an employee.

<p>Appeal from a judgment of the superior court for Spokane county, Poindexter, J., entered December 11,1905, upon findings in favor of the defendant, after a trial on the merits, dismissing an action for divorce.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 3, 1906, upon findings in favor of the plaintiffs after a trial on the merits, enjoining the defendants from further changing the grade of a street.</p>

<p>Vendor and Purchaser — Option—Tender of Title — Specific Performance. A receipt for purchase money, containing a memorandum of the sale of real property “conditioned on furnishing a good and sufficient title within thirty days,” is not a mere option expiring at the end of thirty days, but a contract of sale which may be specifically enforced within a reasonable time thereafter, in the absence of a demand and tender of title by the vendor within the thirty days.</p> <p>Same — Performance—Delay of Vendee — Tender of Title. A delay of twenty-five days in tendering a balance due upon a purchase of real estate which was to have been completed “thirty days from date,” is not, as a matter of law, unreasonable so as to work a forfeiture of the contract, where an abstract of title promptly ordered was not delivered in time therefor, and the vendor made no demand or tender of title prior to demand for a deed by the vendee.</p> <p>Same — Pleading—Allegation of Title. In an action by a vendee for the specific performance of a contract to convey real estate “conditional on furnishing a good title,” a complaint sufficiently alleges title in the vendor, as against a general demurrer, where it shows a tax title which the vendee is willing to accept.</p> <p>Contracts — Evidence. Evidence of an oral understanding entered into between the parties at the time of making a written contract to convey real estate is inadmissible to contradict the terms of the writing.</p>

, entered June 12, 1906, in favor of the defendant, upon sustaining a challenge to the sufficiency of the evidence, in an action for damages for the obstruction of a public highway.

, entered May 14, 1906, refusing an application for the discharge of a receiver and for the payment to defendant of all money in the receiver’s possession.

<p>Robbery — Evidence—Sufficiency. There is not sufficient evidence to sustain a conviction for robbery, and it was error to deny a new trial, where it appears that the prosecuting witness, who was not present at the trial, the defendant, and others were intoxicated and engaged in a fight in an alley, and there was no evidence that he had been robbed other than loose statements to the effect that he had stated to third persons that he had a twenty-dollar bill and some change which he lost in the alley.</p>

, entered July 9, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, granting a petition to condemn a right of way through land appropriated by another railway.

, entered July 12, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without á jury, granting a petition to condemn a right of way through land appropriated by another railway.

, entered May 1, 1906, upon the verdict, of a jury in favor of the plaintiff for $5,348, for personal injuries sustained by a setter employed upon a saw carriage in defendant’s mill.

Appeals from a judgment of the superior court for King county, Yakey, J., entered January 15, 1906, upon findings in favor of the defendants, after a trial before the court without a jury, in an action to recover possession and quiet title to real estate.

, entered March 13, 1906, upon the pleadings in favor of the defendants, dismissing an application for mandamus to compel the city and its officers to lew a tax for the payment of warrants.

, entered October 30, 1906, upon sustaining a demurrer to the complaint, dismissing an action to restrain the vacation of a street.

, entered January 21, 1905, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on contract.

<p>Appeal — Review-—Findings. Findings upon conflicting evidence, with no decided preponderance, will not be disturbed on appeal, where the trial court had the advantage of seeing the witnesses.</p>

, entered September 10, 1906, upon sustaining a demurrer to the complaint, dismissing an action to recover possession of property seized for taxes.

, entered June 2, 1906, after a trial on the merits before the court without a jury, in an action to recover upon promissory notes.

, entered March 31, 1906, upon sustaining an objection to the introduction of testimony, dismissing on the pleadings and the opening statement of counsel an action for damages for the revocation of a license.

, entered February 8, 1906, 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 March 26, 1906, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action for personal injuries.

<p>Evidence — Weight and Sufficiency. The court is not bound by the uncontradicted testimony of an interested party, but may reject0 the same if unworthy of belief by reason of its improbability or inconsistency.</p> <p>Bills and Notes — Transfer—Bona Fides. The uncontradicted testimony of the 'plaintiff that he was the tona fide purchaser of notes is unworthy of belief and insufficient to sustain the burden of proof required by the negotiable instrument law, Laws 1899, p. 340, §§ 52, 59, where, upon an issue as to fraud in the inception of the notes, his evidence shows an anxious determination to avoid any information concerning the origin of the notes, and that be purchased them of his brother-in-law, knowing nothing of the maker or his financial standing, made no entry upon his books, required no endorsement or guaranty, and held them when past due without any move to collect, and no effort was made to corroborate his story by the evidence'of the endorser.</p> <p>Appeal — Review—Harmless Error. Entry of judgment prior to the expiration of the time for. moving for a new trial, is not ground for reversal, where the motion for new trial made preserved appellant’s rights and the judgment entered was right.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered June 7, 1906, upon findings in favor of the plaintiff, granting a divorce, after a trial on the merits before the court without a jury.</p>

, entered November 6, 1905, upon findings in favor of the garnishee, after a trial on the merits before the court without a jury, in a garnishment proceeding.

, entered May 5, 1906, upon the verdict of a jury rendered in favor of the plaintiffs, after a trial on the merits, in an action to recover the possession of land and for damages.

, entered May 31, 1906, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained by a passenger through being struck by a street car.

<p>Dbains — Mandamus—To Compel Liquidation of Ditch Wabbants. Mandamus lies in favor of tbe holder of warrants, issued in part payment for the construction of a ditch, to compel the county commissioners to borrow money or levy a special assessment to establish a fund to pay the principal and interest due on the warrants, where the commissioners had abandoned the project and refuse or fail to take any steps to complete the ditch or levy the assessment.</p> <p>Same — Defenses. An objection by owners of benefited property that condemnation proceedings and the construction of a ditch are not completed, is no defense to the right to make an assessment to pay the warrants issued in part payment of the construction, where the project had been abandoned.</p>

, entered July 26, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a longshoreman at work upon a steamship.

Cross-appeals from a judgment of the superior court for King c'ounty, Albertson, J., entered November 33, 1906, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for unlawful detainer.

, entered August 25,1906, granting a new trial to the defendant, in an action for the death of a pedestrian struck by defendant’s train.

, entered June 16, 1906, upon the verdict' of a jury rendered in favor of the plaintiff, after a trial on tthe merits, in an action for personal injuries sustained through a defective sidewalk.

<p>Appeal from a judgment of the superior court for King county, FraJter, J., entered January 14), 1907, in favor of the defendant, upon sustaining a demurrer to the complaint, dismissing a prosecution for violation of the factory act.</p>

<p>Judgment — Res Judicata- — Contracts for Services — Wrongful Discharge — Successive Actions. As the doctrine of “constructive service” whereby successive actions may be maintained for wages accruing after a wrongful discharge does not now prevail, and the only remedy is damages for breach of contract, a recovery for salary for several months subsequent to a wrongful discharge, under a contract for employment for one year, whether for damages eo nomine, or for constructive service, is a bar to a subsequent action to recover salary for the balance of the term; since there is but one breach of the contract for which but one recovery for damages can be had.</p>

, entered July 9, 1906, upon findings in favor of the plaintiff, after a 'trial on the merits before the court without a jury, in an action of unlawful detainer.

<p>Pleadings — Demurrer—'Waiver. The withdrawal of a demurrer to a complaint and joining issue by answer does not waive the right to move to dismiss the action for want of sufficient facts to state a cause of action, where the complaint was amended after the demurrer was interposed.</p> <p>Intoxicating Liquors — Licenses—Return of Deposit — County Treasurer — Individual Liability. A county treasurer receiving money in his official capacity in payment for liquor licenses on pending applications, is not individually liable to make return thereof on failure of the county commissioners to issue the licenses, although he subsequently promised to do so, since he can disburse the money only on proper orders; and he is therefore properly dismissed from an action brought against him and the county for the return of the money.</p> <p>Same — Right to Refund of Deposit — Liability of County— Novation. Checks drawn by a brewing company payable to the order of the county treasurer, and deposited by applicants for liquor licenses, are properly returned to the applicants upon denial of the applications, and.' cannot be recovered by tbe brewing company in an action against the county or treasurer, where there was no novation or showing that the applicants making the deposit consented thereto, especially where the amount of the checks were charged by the brewing company to the account of the applicants; and a subsequent promise by the treasurer to make such return is without consideration or authority, and does not amount to a novation.</p>

, entered October 1, 1906, upon the verdict of a j my rendered in favor of the plaintiff, after a trial on the merits, in an action for personal injuries sustained through a defective sidewalk.

, entered September 28, 1906, dismissing an action to declare a trust and secure a deed of tide lands, upon plaintiffs refusal to amend the complaint and make the same more specific.

, entered June 4, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to enforce the specific performance of a contract to convey real estate.

, entered November 3, 1906, upon granting defendants’ motion in arrest of judgment after a plea of guilty to an information charging the crime of fishing during the closed season.

<p>Rape — Evidence—Corroboration. In a prosecution for rape, the positive evidence of the prosecuting witness as to all the essential elements of the offense is sufficient to sustain a conviction without any corroboration.</p> <p>Same — Weight. In a prosecution for rape of the defendant’s own daughter, under eighteen years of age, evidence that defendant knew of her pregnancy and made no inquiry, and suspicious action on his .part at the time of the investigation by officers and of his arrest, is corroborative of the positive evidence of the prosecuting witness, and supports a verdict of guilty.</p> <p>Same — Proof of Other Acts. In a prosecution for rape upon a child under the age of consent, evidence of other acts of intercourse prior to the offense charged is admissible as tending to show the probability of the specific act charged.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Poindexter, J., entered March 24, 1906, upon the Verdict rendered in favor of the plaintiff, by direction of the court, in an action on a contract of insurance.</p>

<p>Appeal from a judgment of 'the superior court for Spokane county, Huneke, J., entered September 1, 1906, in favor of the defendant, dismissing an action for divorce after a trial on the merits.</p>

, entered May 21, 1906, 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.

Motions to strike the statement of facts and to dismiss an appeal from a judgment of the superior court for Cowlitz county, McCredie, J., entered June 12, 1906. Motion to strike granted.

, entered June 8, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action by an attorney 'to recover fees for professional services rendered.

<p>Taxation —. Foreclosure — Personal Service — Judgment—Vacation. A tax foreclosure judgment and sale of property assessed to an unknown owner, is properly vacated for had faith and failure to make personal service upon the defendant owners of the property, who had been ascertained and made parties to the action, where it appears that the defendants lived on the property, were well known in the neighborhood, were the record owners, and could have been found without difficulty, that the plaintiff’s attorney made affidavit of their nonresidence without any search except such as was made in the sheriff’s office while he was waiting for the return of “not found,” and published the summons in a country newspaper of small circulation some distance from the large city in which the property was located, and that the defendants had paid all delinquent taxes except a tax of 24 cents for one year which had been inadvertently overlooked.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered June 9, 1906, dismissing, at the close of plaintiff’s case, an action by a wife for separate maintenance.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered September 6, 1906, denying specific performance of a contract to sell real estate and dismissing the action, after a trial on the merits before the court without a jury.</p>

, entered November 21, 1906, upon sustaining demurrers to the complaints, dismissing an action, brought by taxpayers of a county to enjoin the issuance of bonds in aid of public improvements.

, entered April 20, 1906, after denying defendant’s motion to file a supplemental answer, enjoining the operation of a fish trap and requiring the removal of the same.

, entered December 1, 1905, dismissing an action to cancel tax deeds, and quieting the title of the defendants, after a trial on the merits before the court without a jury.

, entered May 1, 1906, upon findings in favor of the plaintiff, setting aside a quitclaim deed procured through fraud and misrepresentation, and directing a reconveyance to the plaintiff.

, entered May 18, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for damages for the negligent performance of a contract.

, entered May 23, 1906, in favor of the defendants, after discharging the jury at the close of the testimony, in an action for damages for breach of the warranty of title contained in a deed.

, entered January 29, 1906, upon findings in favor of the plaintiffs, after sustaining an objection to the introduction of any evidence on the part of the defendants, in an action to obtain possession of land and quiet title thereto.

, entered November 3, 1906, upon findings in favor of the plaintiff, granting a petition for a writ of habeas corpus to recover the possession of two children.

, entered July 19, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to enforce specific performance of a contract to sell real estate.

, entered October 18, 1906, upon sustaining a demurrer to the complaint, dismissing an action for damages for breach of a covenant contained in a lease.

<p>Appeal from a judgment of the superior court for Columbia county, Chadwick, J., entered March 17, 1906, upon findings in favor of the garnishees, dismissing proceedings supplemental to execution.</p>

<p>Principad and Surety — Contractor’s Bond — Actions—Items Recoverable. In an action on a contractor’s bond to recover damages for tbe failure of a contractor to complete a building, the owner is entitled to be credited with sums paid out in purchasing finishing items, in the amounts fixed in the contract therefor; also for small items in sweeping out and repairing, where the contract called for leaving the house “broom clean,” although no architect’s certificate in relation thereto was furnished; also for the amount for which liens were filed, admitted by the contractor to be correct.</p> <p>Same — Acceptance by Architect — Abandonment by Contractor. In an action on a contractor’s bond to recover damages for the failure of a contractor to complete a building, an allowance for damages on account of defective material cannot be objected to on the ground that the architect and superintendent accepted the building, where it appears that the contractor abandoned the building before completion and under the contract there could be no. valid acceptance by the architect until final completion.</p> <p>Contracts — Breach—Stipulated Damages. Stipulated damages of five dollars per day for delay in completing a building within the contract time are recoverable.</p> <p>Principal and Surety — Alterations—Release op Surety. An allowance to a contractor for extras permissible under the contract do not constitute a change in the construction of the building that would release a surety on the contractor’s bond.</p>

<p>Principal and Agent — Duties—Evidence—Question for Jury. The question whether an agent was supplied with funds to make a certain payment is for the jury where the principal so testified and that the agent agreed to make the payment a few days before it was due, and the agent testified to the contrary and that he notified the principal that he had no funds to make the payment.</p> <p>Husband and Wife — Separate Property of Wife — Actions— Parties Plaintiff. A married woman who contracts with an agent with respect to her separate property may maintain an action in her own name against the agent to recover damages for neglect of its duty as such agent, and her husband is not a necessary party plaintiff.</p> <p>Judgment — Res Judicata — Parties—Issues. A judgment in an action by a vendee against her vendor and an individual as agent making the sale, brought to rescind the contract for fraud and recover the money paid, is not a bar to a subsequent suit by the vendee against a corporation (in which the aforesaid agent was interested) acting as her agent to collect rents and make payments, to recover damages for neglect of duty as such agent; since the issues and the parties were not the same.</p> <p>Corporations — Representations by Officers — Authority. An agreement, by a managing agent of a corporation doing a real estate business, to collect rents and apply the same on a contract of sale negotiated by the corporation for one of its customers, is within the scope of its business, and cannot be repudiated by the company after holding him out as managing agent, allowing him to carry on' its business, and receiving the benefits of the contract.</p>

<p>Appeal from a judgment of the superior court for What-com county, Neterer, J., entered January 23, 1906, upon the complaint and opening statement of counsel, dismissing an action for personal injuries sustained by a policeman in alighting from a street car.</p>

, entered May 8, 1906, denying plaintiff’s application for an injunction to prevent the opening of streets to public use.

<p>Sales — Fraud—Corporate Stock — Evidence—Sufficiency. In an action by a vendee for deceit in the sale of corporate stock, the evidence is sufficient to sustain findings to the effect that the vendor made fraudulent representations concerning the dividends that would be paid on the stock, although he testified that he made no representations and never met the plaintiff until the consummation of the sale, where the plaintiff testified that the representations were made by the defendant at an interview prior to the sale, and she was corroborated by one witness to the extent that the defendant met and conversed with her at that time, and where it further appears that two sales of stock were made, about two months apart, and during the interval the defendant paid the plaintiff dividends for two months on the first stock purchased corresponding with the alleged representations, and which were greatly in excess of the actual dividends earned during that time.</p> <p>Same — Diligence of Vendee — Reliance on Representations. A vendee purchasing stock in a corporation, and having no knowledge of the assets or business of the corporation, may rely on representations of the vendor as to the value of the stock and the amount of dividends that the stock would yield, without making an investigation to ascertain the facts.</p> <p>Same — Representations as to Values — Opinions. Representations by the president and manager of a corporation as to the value of the corporate stock and the amount of dividends that it would yield are not mere expressions of opinions, but are actionable if false.</p> <p>Same — Evidence—Similar Facts — Showing Value. In an action by a vendee for fraudulently representing the value of corporate stock to be one dollar per share, it is error to exclude evidence that at the time of the sale the defendant was“ making similar sales or offering to sell the same stock at fifty-five cents per share, the same being admissible on the question of value and as affecting the credibility of the witness in general.</p>

<p>Vendor and Purchaser — Contracts—Time for Performance— Construction. Where a contract for the sale of land provided for payment of the balance due on or before fifteen days after complete abstract of title should be delivered to the agent, with deed warranting against all incumbrances, and that the contract should be void if the title could not be made good within thirty days after delivery of abstract, the existence of an unsatisfied mortgage upon the property extends the time for performance by the vendee for such period of thirty days, although the vendee had agreed to secure the satisfaction of the mortgage and deduct the amount thereof from the purchase price; hence the vendee would not be in default during such period of thirty days where tender was made as soon as the satisfaction of the mortgage was secured.</p> <p>Same — Forfeiture of Contract — Demand—Actions—Waiver of Defense. Refusal by vendors to perform a contract for the sale of land cannot be justified by the fact that the vendors did not know to whom the deed should be delivered, where demand for performance was made by the agent in whose name the contract was made, and where the refusal was at the time placed on the ground that the tender was too late.</p> <p>Same — Assignment—By Trustee — Validity-—-Signature of Wife. Where an agent, in whose name a contract for the sale of land was made, acted as a trustee, an assignment of the contract by him to his principal need not be joined in by his wife.</p> <p>Same — Damages for Failure to Convey — Evidence—Values— Recital in Deed — Sufficiency. In an action for damages for breach of contract to convey lands, sold by tbe defendants to other parties within a month, the deed of the defendants conveying the property, reciting a consideration of $25,000, is prima facie evidence of the value of the property at that time; and in the absence of explanation or other evidence, is sufficient to sustain a finding that the property was of that value.</p>

, entered June 14, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for personal injuries sustained by a freight brakeman through a collision between defendant’s railway trains.

Motion to strike respondent’s brief on appeal from a judgment of the superior court, for Spokane county, Poindexter, J., entered June 11, 1906.

<p>Appeal from a judgment of the superior court for Kittitas county, Itigg, J., entered May 26, 1906, upon findings in favor of the plaintiffs, after a trial on the merits, in an action to enjoin the obstruction of a ditch used for irrigation purposes.</p>

<p>Appeal — Review—Harmless Error. Upon an appeal from an order granting a temporary injunction after a bearing, error in granting a preliminary restraining order until the hearing, is- immaterial.</p> <p>Appeal — Records—Affidavits. Affidavits and copies of records, used on the hearing of an application for an injunction, not brought up by a bill of exceptions or statement of facts, will be struck out on motion.</p>

, entered May 29, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for wrongfully suing out a writ of attachment.

<p>Waters and Water Courses — Riparian Rights. The common law doctrine of riparian rights in the use of waters of a stream has become a rule of property in this state.</p> <p>Same — Acquisition op Rights — Irrigation. Where parties acquired or initiated their rights to lands before any attempt was made to acquire by appropriation the right to the use of waters of a stream flowing through the lands, their respective rights to use of the waters must be determined by the common law; and the same permits a reasonable use of the water for the purpose of irrigation.</p> <p>Same — Apportionment op Waters. Where three riparian owners each own the same amount of arid land requiring substantially the same amount of water for irrigation, the waters of a stream flowing through the land should be equally apportioned among them, where the claims to prescriptive rights find no support in the record and their rights do not rest upon appropriation.</p> <p>Same — Waiver op Rights. The assertion of rights to waters by appropriation is not antagonistic to, or a waiver of, riparian rights.</p> <p>Same — Prescription. An owner of arid land .has a prescriptive right to maintain a ditch over adjoining land, where for thirty years she has conducted the water of a stream through the same for irrigating her lands.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered July 5, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to quiet title.</p>

, entered April 4, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action on contract.

<p>Appeal from a judgment of the superior court for What-com county, Joiner, J., entered September 7, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a tax lien.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered June £, 1906, upon a trial and conviction of obtaining money under false pretenses.</p>

<p>Mechanics’ Liens — Persons Entitled — Employees in Mill — Logs and Logging. A laborer engaged in cutting logs in the woods at a distance from a mill, paid by the thousand feet, is not an employee of the mill or engaged in performing labor in its operation, within the meaning of Bal. Code, § 59X9,- giving an employee’s lien upon all the mill company’s property; his remedy being a logger’s lien under Bal. Code, § 5930.</p>

, entered August 28, 1906, denying the application of the defendant for the custody of a child awarded to the plaintiff.

<p>Mechanics’ Liens — Foreclosure'—Pleading—Complaint. A general demurrer to a complaint for the foreclosure of a mechanics’ lien should he overruled where the complaint states a cause of action for a general recovery.</p> <p>Same — Sueeiciency oe Complaint. A complaint for the foreclosure of a mechanics’ lien for the construction of a well states a cause of action where it shows that work ceased January 30, that the lien notice was filed February 10, and, aided by the lien notice attached, that the notice was filed within ninety days from the time the work ceased.</p> <p>Same — Appeal—Record. In the absence of the evidence on appeal, an allowance of $50 for attorney’s fees in the foreclosure of a mechanics’ lien will not be held to be an improper amount.</p> <p>Same — Judgment—Land Necessary — Appeal—Waiver oe Objections. Objections to a decree foreclosing a mechanics’ lien for boring a well, entered against the whole of the premises without determining how much thereof was necessary to satisfy the lien, as required by Laws 1905, p. 230, § 2, cannot be urged by a defendant who stood upon a general demurrer to the complaint and joined no issue and offered no evidence on the subject.</p>

<p>Appeal from a judgment of the superior court for King county, Neterer, J., entered April 30, 1906, 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.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered August 6, 1906, upon sustaining a demurrer to the complaint, dismissing an action to abate and enjoin a public nuisance.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered March 8, 1906, upon sustaining a demurrer to the complaint, dismissing an action to foreclose a mortgage.</p>

, entered June 19, 1906, upon the verdict of a jury, rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a sawmill.

, entered February 21, 1906, upon the verdict of a jury rendered in favor of the plaintiff for $7,500, in an action for personal injuries sustained by an employee while operating a planer in a sash and door factory. Affirmed on condition of remitting $2,500.

, entered May 7, 1906, granting to the relator a writ of mandate to compel a county treasurer to accept a tender of taxes and allow a redemption from a foreclosure sale.

, entered September 24, 1906, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, dismissing an action in mandamus to compel a city to return the excess amount collected upon an assessment for street improvements.

<p>Appeal from a judgment of the superior court for What-com county, Neterer, J., entered October 2, 1906, upon a trial and conviction of the crime of forgery.</p>

, entered May 18, 1906, upon findings in favor of the defendant, dismissing an action for the dissolution and winding up of a copartnership.

<p>Appeal from a judgment of the superior court for Lincoln county, Kennan, J., entered September 1, 1905.</p>

<p>\ppeal from a judgment of the superior court for King county, Rice, J., entered May 31, 1906.</p>

<p>Appeal from a judgment of tbe superior court for King county, Frater, J., entered January 6, 1906.</p>