Volume 53 — Washington Reports

, entered July 10, 1907, after a trial on the merits before the court without a jury, disbarring the defendant as a practicing attorney at law.

, entered December 28, 1907, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action to quiet title.

, entered March 28, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action on contract.

, entered November 14, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action on contract.

, entered November 10, 1906, upon findings in favor of the plaintiff, in an action to recover upon a fire insurance policy.

<p>Appeal — Review-—Evidence—Harmless Eeror. Error in the admission of evidence in an equitable case is harmless.</p> <p>Waters and Water Courses — What Are — Lakes—Obstruction— Injunction — Damaoes—Evidence—Sloteiciency. A dam causing the overflow of lands bordering upon a depression, swamp or lake, is an unlawful obstruction of a natural water course, and not a mere protection against surface waters, where it appears that the depression or lake was practically a continuation of, and received the overflow from, another lake, and that the water course had a well defined channel, was the natural outlet of the lakes, and was the only means of discharging the waters thereof during high water season; and such obstruction will be enjoined, with damages for its maintenance.</p>

H. White, Esq., judge pro tempore, entered April 2, 1908, upon findings in favor of the defendants in an action for an accounting, consolidated with an action by defendants to establish a lien.

, entered August 21, 1908, granting a nonsuit at the close of plaintiffs’ case, dismissing an action for specific performance.

Appeal by plaintiff from a judgment of the superior court for Spokane county, Poindexter, J., entered June 22, 1908, adjudging a public use, and awarding damages to defendants, in an action to condemn a way for a ditch and the riparian rights to the waters of a nonnavigable arm of a lake.

, entered August 22, 1908, requiring the execution of a trust deed for the benefit of minor children, upon granting a divorce, after a trial on the merits before the court without a jury.

<p>Appeal — Decisions—Law of Case.- A decision of the supreme court that a description of an engine in a conditional bill of sale was a sufficient memorandum to give constructive notice to subsequent purchasers and incumbrancers becomes the law of the case on a retrial; and it is error on the retrial to submit the question to the jury.</p> <p>Sales — Conditional Sales — Sufficiency of Description — Evidence — Admissibility. In replevin for an engine held under a conditional bill of sale, upon an issue as to whether the bill of sale sufficiently described the engine to give constructive notice, it is error to receive evidence that there were similar engines in the county to which the description would apply; since the description need not be so particular as to exclude all other engines.</p>

, entered August 14, 1908, adjudging the plaintiffs guilty of contempt of court and imposing the payment of costs, pending an action to enjoin the construction of a drainage ditch.

, entered June %, 1908, 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 retained by an agent after cancellation of an insurance policy.

, entered June 27, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court without, a jury, in an action to foreclose a mortgage.

<p>Vendor and Purchaser — Marketable Title. A vendee contracting for an abstract showing a good title is entitled to a marketable title, i. e., one free from reasonable doubt.</p> <p>Same — Rescission by Vendee. A purchaser will not be allowed to rescind for defects in title, where it appears that he advertised and failed to resell the property at a profit, repented of his contract, obtained an attorney’s opinion searching out all possible defects, and refused to return the abstract for correction or afford reasonable opportunity to remove the alleged defects.</p> <p>Same — Mortgages—Merger. An abstract shows a marketable title notwithstanding reference to an unreleased mortgage, where it appears from the abstract that the mortgage had been assigned to one R. who subsequently obtained the full title and conveyed with full covenants, there being at the time no other outstanding lien and no record of any assignment of the mortgage pursuant to Bal. Code, §§ 4565, 4566; since a merger of the mortgage was shown.</p>

, entered November 18, 1907, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action of ejectment.

, entered February 4, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor employee in operating a cut-off saw.

, entered February 20, 1908, granting a nonsuit at the close of plaintiffs’ case, dismissing an action to recover the value of live stock placed in defendant’s stock pens.

, entered May 18, 1908, in favor of the defendant by direction of the court, upon discharging the jury, dismissing an action on a benefit insurance certificate.

, entered June 6, 1908, upon findings in favor of the intervener, after a trial on the merits-before the court without a jury, in an action on a promissory note.

<p>Evidence — Weight and Sufficiency. The undisputed testimony of an interested party is not conclusive or binding upon the court.</p> <p>Appeal — Review—Findings. Findings will not be disturbed because contrary to the undisputed evidence of an interested party where the same was not reasonable or in harmony with established facts, and the trial judge had opportunity to pass upon his credibility.</p>

Appeal by plaintiff from a judgment of the superior court for Spokane county, Kennan, J., entered March 9, 1908, directing the payment of alimony awarded by a decree of divorce, after a trial on the merits before the court.

, entered June 18, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the •court without a jury, in an action on a draft.

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered May 5, 1908, upon a trial and conviction of the crime of grand larceny.</p>

, entered March 4, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action impersonal injuries sustained by an employee in a sawmill.

<p>Warehousemen — Bailment—Construction of Contract — Trial— Question of Law. Under an agreement reciting that the defendant rented to the plaintiff a certain cold storage room to be used for storing beef, for a certain sum per month or in proportion to space used, the relationship of the parties is that of bailor and bailee, and is to he determined by the court as a matter of law; and it is misleading and error to submit to the jury the question whether the relation was that of landlord or warehouseman, although such relations were properly defined.</p> <p>Warehousemen — -Bailment—Liabilities—Presumption of Negligence. In an action against a cold stbrage company for negligence in the storage of beef, there is no presumption of negligence from the fact that the beef was received in good condition and had spoiled when delivery was made; since from the nature of the chattel it may deteriorate or perish without negligence on the part of the bailee.</p> <p>Same — Damages—Measure—Injury to Property. The measure of damages for negligence by a bailee for hire in the storage of beef is to be determined by the fair market value of the beef at the time it was sold when the bailment ended, and not at the time at which plaintiff intended to sell it.</p>

<p>Appeal — Decision—Law of Case. A decision on appeal becomes-the law of the case on a retrial.</p> <p>Covenants- — Action fob Breach — Defenses. In an action on a covenant of general warranty of public lands, applied for by the-grantor, hut for which patent had not issued, it would he a good defense to the action if the grantee, knowing the conditions, upon consideration, agreed to perfect and complete the title, and the title-failed through his neglect and default.</p> <p>Trial — Instructions. It is not error to refuse a request for an instruction that is covered by another instruction.</p>

, entered April 11, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an- action for conversion.

Cross-appeals from a judgment of the superior court for Spokane county, A. Q. Kellam, Esq., judge pro tempore, ■entered April 17, 1908, upon findings in favor of the plaintiff, 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 Walla Walla county, Brents, J., entered May 18,1908, upon a trial and conviction of the crime of horse stealing.</p>

, entered February 13, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover the purchase price of property sold and delivered. Affirmed.

, entered January 21, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a passenger who was struck by a street car.

, entered February 26, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to declare a trust in real property and for an accounting.

, entered March 6, 1908, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action for injuries sustained by an off-bearer in a sawmill.

, entered May 1, 1908, upon sustaining a demurrer to the complaint, dismissing an action to redeem real property from a tax sale.

, entered June IS, 1908, in favor of the defendants, after a trial on the merits before the court without a jury, in an action to subject real property to the lien of a judgment. Affirmed.

, entered December 28, 1907, 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 mechanics’ lien.

, entered July 3, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to annul a local improvement assessment and to enjoin its enforcement.

<p>Eminent Domain — Necessity—Determination oe Questions— Municipal Corporations — Necessity foe Streets. Where a city has .jurisdiction to extend its streets over tide lands, the decision of the proper municipal officers as to public use and necessity is conclusive, in the absence of fraud.</p> <p>Municipal Corporations — Streets—Extending Over Tide Lands Outside City. Where, pursuant to Const., art 15, § 1, harbor lines ¡are established in front of a city the corporate limits of which only extend to the line of ordinary high tide, the city has power to extend its streets over intervening tide lands to and across the reserved area, as expressly authorized by Const, art 15, § 3.</p> <p>Municipal Corporations — Streets—Condemnation Outside City —Appeal—Questions Presented — Payment of Award. Upon appeal from an order adjudging a public necessity for condemnation for a •street extension outside of the city, the question of the power of the •city to levy assessments on lands outside its limits to pay the award does not arise, as the award must be paid before the land is taken.</p>

, entered June 1,1908, upon the verdict of a jury rendered in favor of the plaintiffs, after a trial on the merits, in an action to rescind a contract for the sale of real property.

, entered September 19, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, after a trial on the merits, in an action for personal injuries. Affirmed.

<p>Appeal from judgments of the superior court for Thurs-ton county, Linn, J., entered July 27, 1908, August 31, 1908, and October 23, 1908, sustaining demurrers to the complaint, dismissing an action to foreclose a materialman’s lien.</p>

, entered November 23, 1908, upon the verdict of a jury assessing damages in a proceeding to condemn land for railroad purposes.

, entered December é, 1908, denying a motion to vacate a judgment, after a trial on the merits before the court without a jury, in an action to recover possession of real property.

, entered September 80, 1908, in favor of the defendants, after a trial on the merits before the court without a jury, in an action of ejectment.

, entered April 9, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to vacate tax sales and to cancel a tax deed.

, entered April 29, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through a defective scaffold.

, entered December 7, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to set aside a sale and conveyance of the property and assets of a corporation, and for an accounting.

<p>Criminal Law — Trial—Arrest of Judgment. A motion in arrest of judgment can only be based on the grounds specified in Bal. Code, § 6967.</p> <p>Criminal Law — Plea of Guhty — Withdrawal—Discretion. Under Bal. Code, § 6902, providing that the court may permit a plea of guilty to be withdrawn, the court should liberally exercise its discretion in favor of life and liberty, but a refusal can only be reviewed for abuse of discretion, and it is not an abuse of discretion to refuse leave to withdraw a plea, asked on the ground that immunity had been promised accused by a detective, where that fact is controverted and it appears that the accused was informed of his rights, knew the effect of his plea, and the prosecuting witness had disappeared and his whereabouts were unknown.</p> <p>Criminal Law — Judgment—Recitals—Appeal. Recitals in an order refusing to withdraw a plea of guilty import absolute verity on appeal as to matters that transpired before the judge.</p> <p>Criminal Law — Trial—Interpreters. It is not error, on receiving a plea of guilty, to appoint a city police detective as an interpreter; especially where the accused speaks broken English, and it appears from his conversation with the judge that he knew what the charge was and the effect of his plea.</p> <p>Criminal Law — Appeal—Haemless Error. Upon an application, to withdraw a plea of guilty, it is not prejudicial error to receive affidavits as to the guilt of the accused, as they are immaterial.</p> <p>Criminal Law — Appeal—Review—-Matters Not Before Lower Court. Upon appeal from an order refusing leave to withdraw a plea of guilty, entered in the court below when the prosecuting witness had disappeared, the supreme court cannot consider affidavits showing that the prosecuting witness had returned.</p>

, judge pro tempore, entered March 27, 1908, upon findings in favor of the plaintiff, after a trial on the, merits before the court without a jury, in an action on a policy of fire insurance.

, entered June 4, 1908, in favor of the defendants, by direction of the court, after a trial before the court and a jury, dismissing an action for personal injuries.

H. White, Esq., judge pro tempore, entered May 19, 1908, 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 June 30, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action upon an indemnity bond.

<p>Appeal from a judgment of the superior court for What-com county, Neterer, J., entered August 20, 1908, upon a trial and conviction of the crime of manslaughter.</p>

, entered December 5, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for divorce.

, entered November 19, 1908, in favor of the defendants, dismissing an action to vacate a tax foreclosure judgment and tax sale, after a trial before the court without a jury.

, entered February 16, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action upon a bill of lading.

, entered October 10, 1908, in favor of the defendants, by direction of the court, after a trial on the merits before the court and a jury, in an action on contract.

, entered June 16, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

, entered December 9, 1908, after a trial before the court without a jury, on the merits, dismissing a condemnation proceeding.

, entered April 24, 1908, upon findings in favor of the plaintiff, after a.trial on the merits before the court without a jury, in an action on contract.

, entered November 18, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for an injunction.

<p>Sales — Breach of Warranty — Remedies of Purchaser — Damages Recoverable — Election. Upon the breach of an implied warranty of a combined harvester, the purchaser may elect to rescind the sale and recover the purchase money paid, or he may retain the machine and offset against the purchase price the damages to his crops naturally resulting from the breach; but he cannot, in an action for the price, recover on counterclaim both the purchase money paid, as upon a rescission, and damages to his crops by reason of' the breach of warranty, as the remedies are inconsistent (Dunbar, Chadwick, and Fullerton, JJ., dissenting).</p> <p>Same — Rescission for Breach of Warranty — Pleading—Issues —Measure of Damages. In an action for the purchase price of a combined harvester in which the defendant set up a breach of warranty and claimed damages to his crop in attempting to use the machine, and it appears from evidence admitted without objection that the defendant rescinded the sale and refused to accept the machine, defendants measure of damages is the sum paid on the purchase price; and he cannot recover for damages to his crop (Dunbar, Chadwick, and Fullerton, JJ., dissenting).</p>

, entered November 30, 1907, upon sustaining demurrers to the complaint, dismissing an action to vacate a judgment, after a trial on the merits before the court.

, entered October 31, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action of ejectment.

G. Wooten, Esq., judge pro tempore, entered February 13, 1909, dismissing an action for personal injuries, after a trial on the merits before the court without a jury.

entered August 11, 1908, denying a writ of prohibition to restrain a prosecution for the violation of a city ordinance, after a trial on the merits before the court.

<p>Injunction — -Grounds — Cotenants — Irreparable Damage — Evidence — Sufficiency. In an action between cotenants tbe evidence fails to show such substantial or irreparable injury as to warrant an injunction to restrain the partitioning of a common entrance to a building, where the area or recess in the building would have been divided so as to give defendant a four-foot passageway to a stairway and the plaintiff a six-foot entrance to the back door of its saloon, without any appreciable interference with light; since injunction will rarely he granted in favor of a cotenant except in case of insolvency or partial destruction of the estate.</p>

<p>Eminent Domain — Drains—Statutes. Laws 1895, page 142, authorizes condemnation proceedings by a county to acquire a right of way for a drainage ditch completed under the unconstitutional act, Laws 1890, p. 652.</p> <p>Same — Limitations. Laws 1895, p. 270, limiting actions by municipal corporations to collect special assessments for any local improvement to ten years after delinquency of the assessment, applies to condemnation proceedings by a county to acquire a right of way for a drainage ditch, under Laws 1895, p. 142, constructed under a prior unconstitutional act; since such proceeding is a mere incident to the power to institute proceedings for the purpose of obtaining money to pay the costs incurred under the void act.</p> <p>Same — Construction of Drains Under Void Act — Limitations. A proceeding by a county under Laws 1895, p. 142, to provide for the payment of expenses incurred in constructing a drainage ditch under the unconstitutional act of 1890, must be commenced within a. reasonable time; and a delay of more than eleven years is unreasonable.</p>

, entered February 12, 1907, denying a writ of mandamus to compel the operation of through passenger trains, after a trial on the merits before the court.

, entered April 7, 1908, upon findings in favor of the interveners, after a trial on the merits before the court without a jury, in an action for specific performance.

, entered September 29, 1908, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to recover a broker’s commission.

, entered January 27, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a beneficiary certificate.

, entered July 1, 1908, 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 to recover purchase money paid.

, entered December 9, 1907, upon sustaining a demurrer to a complaint in intervention, dismissing a petition to vacate a judgment against an insolvent corporation, and for an accounting.

, entered December 5, 1908, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action for a broker’s commission.

, entered July 1, 1908, in favor of the defendant, upon discharging the jury, dismissing an action for personal injuries upon the ground of former adjudication.

<p>WAREHOUSEMEN' — LlEN CHARGES EVIDENCE PAYMENT —• SUFFICIENCY. In an action of replevin for a piano held for storage charges, the evidence is insufficient to justify a verdict for the plaintiff, where it appears that he refused to pay a balance due of $40, necessary to discharge defendant’s lien for charges, for the reason that a few days before he had paid within $1.95 of the charges said to be due at that time, and had been assured the further cost of cartage on removal of the goods would not exceed $25, where there was no attempt to show that the charges were unreasonable or the services charged for not rendered; as defendant’s previous statement did not preclude proper additional charges.</p>

, entered August 4, 1908, in favor of the plaintiff, upon sustaining a demurrer to the answer, granting a writ of mandamus.

, entered October 31, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee unloading a car of lumber.

, entered May 6, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to recover for the loss of personal property stolen from the room of guests at a hotel.

, entered November 23, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

Appeal by plaintiff from a judgment of the superior court for King county, Gilliam, J., entered December 22, 1908, after a trial on the merits before the court without a jury, upon findings limiting the plaintiff’s recovery to $150, in an action on contract.

, entered July 10, 1908, upon the verdict of a jury rendered in favor of the plaintiff for $2,000, in an action for personal injuries sustained by an employee about a steam shovel.

, entered October 24, 1908, upon a trial and conviction of the crime of drawing upon a bank without, funds wherewith to meet the check.

, entered' March 10, 1908, 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. Affirmed.

, entered February 1, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by the operator of a ripsaw.

<p>Appeal — Decision—Eeeect—Judgment—Vacation. After a judgment has been affirmed on appeal, the superior court has no jurisdiction of an action to vacate it for fraud, the supreme court not having granted leave to attack it.</p>

, entered January 13, 1908, 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>Bate — Evidence—Corroboration oe Prosecutrix — Connecting Defendant. In a prosecution for rape, proof that the parties were together under suspicious circumstances at another time two months previous to the time charged, is not such corroborating evidence aa tends to convict the defendant of the offense charged, within Laws 1907, p. 396, where the prosecutrix denied that any improper relations were had at that time.</p> <p>Same. In a prosecution for rape, proof that the prosecuting witness became pregnant, is not such corroborating evidence as tends to convict the accused of the crime, within Laws 1907, p. 396.</p>

, entered November 21, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a defective highway.

, 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 enjoin the construction of a boom.

, entered March 24, 1908, upon sustaining a demurrer to the complaint, dismissing an action to vacate certain orders and deeds, and to quiet title, after a trial before the court without a jury.

Appeals from judgments of the superior court for King county, Griffin, J., entered July 9, 1908, and August 13, 1908, upon findings favorable to the plaintiff against the defendant, and favorable to the interveners against the plaintiff, after a trial on the merits before the court without a jury, in an action to recover possession of real property.

Cross-appeals from a judgment of the superior court for King county, Tallman, J., entered October 21, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

<p>Deeds — Delivery—Priorities.- Leaving a deed for the grantees with the notary who took the acknowledgment is a sufficient delivery to give the same priority over a judgment subsequently filed.</p> <p>PRINdlPAL AND AGENT-PROOF OE AGENCY-TESTIMONY OE AGENT. An agent is competent to testify to the fact of the agency, such proof not being within the rule that agency cannot he proved by declarations of the agent.</p> <p>Parties — Representations—Sheriffs—Costs. In an action to restrain a sheriff and creditor from making an execution sale- of property, the sheriff is the real and not a nominal party in the trespass, and personally liable for the costs of suit.</p>

, entered April 2, 1908, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on a policy of life insurance.

, entered October 24, 1907, upon findings in favor of the plaintiff, 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 King county, Griffin, J., entered November 2, 1908, upon sustaining defendant’s motion for judgment on the pleadings, dismissing an action for divorce.</p>

<p>Trial — New Trial — Conduct op Jury — Depositions in Jury Room — Harmless Error. The inadvertent presence of depositions in tbe jury room, prohibited by Bal. Code, § 5004, is- not prejudicial error as ground for a new trial, where the jury did not consult them or know of their presence.</p> <p>Evidence — To Vary Written Contracts. Oral evidence modifying and explaining certain letters is not 'inadmissible as varying a written contract, where the letters did not constitute the contract, which was oral, but only tended to show its nature and extent.</p>

, entered February 18, 1909, in favor of the defendant, after a trial upon stipulated facts, dismissing proceedings in the nature of quo warranto.

superior court for Spokane county, Kennan, J., entered October 3, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to foreclose a mechanics’ hen.

<p>Fraudulent Conveyance — Husband to Wipe — Evidence op Good-Faith — Burden op Proof. Under Bal. Code, § 4580, casting tbe burden of proof upon one asserting good faith in transactions between husband and wife, a deed from the husband to a wife in consideration of love and affection is not shown to have been made in good faith, where it was made on the same day that suit was brought against the husband, and before judgment the husband and wife-joined in a deed of other property which was admittedly a fraud upon creditors; and a mere assertion by the wife that there was no collusion is not sufficient under the circumstances.</p> <p>Same — Return op Nulla Bona- — Solvency op Grantor — Burden op Proop. Where a creditor made at different times two conveyances in fraud of creditors, a return of an execution nulla tona isprima facie evidence that there was no other property out oí which to satisfy the debt, subjecting both conveyances to attack; and the-burden is upon the defendants to show affirmatively that the second conveyance, which was set aside, was sufficient to satisfy the debt, in order to sustain the first conveyance on the theory of solvency at that time.</p>

, entered June 10, 1908, after a hearing upon stipulated facts, affirming a reassessment upon property for a local improvement.

<p>Master and Servant — Railroads—Negligence—Construction op Side Tracks. It is not negligence rendering a railroad company-liable to its locomotive fireman, struck by a passing train while cleaning out his engine on a side track, that the side tracks were constructed so near the main line that plaintiff was struck while so engaged, if the tracks are far enough apart to permit trains to pass in safety.</p> <p>Same — Contributory Negligence — Evidence—Suppiciency. An experienced locomotive fireman, familiar with the locality, who was struck by a passing train on the main line, while he was cleaning out his engine on a side track, is guilty of contributory negligence, as a matter of law, notwithstanding he had. received no notice of meeting a train, where, before commencing work, he could have seen the train on the main line had he looked, but went to work in a cloud of steam where he was prevented from seeing or hearing the approaching train, and so close to the main line that he knew he would be struck by any passing engine.</p>

<p>Appeal from a judgment of the superior court for Douglas county, Steiner, J., entered October 2, 1908, 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 breach of contract.</p>

, entered March 6, 1909, denying a motion to vacate a supersedeas or restraining order, after a hearing before the court.

, entered July 31, 1908, in favor of the defendants, dismissing an action to enjoin a city in the prosecution of a public'improvement.

, entered June 6, 1908, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, dismissing an action for personal injuries.

, entered October 14, 1908, 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 May 26, 1908,. upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action on contract.

, entered May 25, 1908, upon findings in favor of the plaintiff, after a trial upon stipulated facts, in an action on contract.

, entered November 23, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to compel the-levying of assessments to pay warrants drawn in payment of the construction of drainage ditches.

, entered December 22, 1908, upon findings in favor of the plaintiff, adjudging the defendant guilty of contempt and .committing him to jail for failure to pay alimony awarded by a decree of divorce, after a trial on the merits before the court.

, entered January 7, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover a broker’s commission.

, entered October 27, 1908, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action by minority stockholders of a corporation for the appointment of a receiver.

, entered July 1, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

, entered October lé, 1908, granting defendant’s motion to quash service of summons upon a foreign corporation, after a hearing before the court, in an action for damages.

, entered November 10, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover an agent’s commission.

, entered December 2, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action on contract.

, entered June 13, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for breach of contract.

, entered November 2, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action of ejectment,’

of the superior court for What-com county, Kellogg, J., entered January 11, 1909, directing the issuance of a writ of mandamus to compel the signing of a city ordinance, after a hearing before the court.

<p>Appeal from a judgment of the superior court for King county, Charles E. Shepard, Esq., judge pro tempore, entered January 7, 1909, 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>

<p>Bbokers — Authority—Ratification. A broker is the agent of the vendors where it appears that he approached them advising that he had a prospective purchaser, that they agreed to pay a commission in case of a sale, and that the broker signed a contract as “agent for the owner,” which was approved in writing by the owners, thereby ratifying the agency.</p> <p>Bbokers — Right to Commissions — Consummation of Sale. Under an agreement to pay a broker commissions on a cash sale, “in case sale is consummated, or. one-third of earnest money in case same is forfeited,” the broker is entitled to recover commissions, where, after a sale to a responsible party, who refused to consummate it, the vendors elected to sue for specific performance, recovered a collectible judgment for the price, and compromised the same on a slight reduction, without the consent of the broker; as the sale was thereby consummated.</p> <p>Same — Duty of Broker — Failure to Disclose. Failure of a broker to disclose that the purchaser was acting as agent for an undisclosed principal is not a defense to an action for commissions, where the ostensible purchaser was responsible and the vendors were not injured.</p> <p>Same — Contract to Divide. An undisclosed agreement by a broker to divide his commissions with the purchaser is no defense to an action against the vendors for the commissions, where they were not injured thereby.</p>

, entered December 4, 1907, in favor of the plaintiff, upon sustaining a demurrer to the answer, in a prosecution for the violation of a statute regulating the hours of service of railway employees.

, entered November 7, 1908, in favor of the defendant, adjudging a future necessity for the installation and maintenance of safety devices at a railway crossing, after a trial on the question of damages in a condemnation proceeding.

, entered January 14, 1909, 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 April 25, 1908, 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 March 81, 1908, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, denying a petition for the removal of an administrator.

<p>Certiorari to review an order of the superior court for King county, Gilliam, J., entered October 7, 1908.</p>

<p>Appeal from a judgment, of the superior cour.t for Thurston county, Linn, J., entered November 30, 1907.</p>