Volume 55 — Washington Reports

Rice, J., entered January 23, 1908, upon findings in favor of the defendants, in contempt proceedings, after a trial on the merits before the court without a jury.

<p>Frauds, Statute of — Oral Sale of Personalty. A parol sale of wheat f. o. b. cars, under a general custom in 'the locality that- the title did not pass until delivery on board the cars, is within the statute of frauds.</p> <p>Taxation — Listing—Mistake—Evidence. The evidence of a mistake of fact in listing property for taxation must be clear, cogent, and convincing in order to overcome the presumption arising from the sworn detail sheet.</p> <p>Same — Mistake of Law — Belief — Bestraining Collection of Tax. Where wheat was orally purchased in February, but the title did not pass until it was delivered on March 7th, and the purchaser’s manager, without looking up the dates but knowing that the wheat was delivered after that date, listed the same for taxation as of March 1st, after the assessor informed him that the vendor refused to pay, his error was a mistake of law, and not of fact, which a court of equity cannot relieve, by restraining collection of the tax, in the absence of fraud or misrepresentation.</p>

, entered January 27, 1908, upon findings in favor of the defendants, dismissing an action to declare a trust in real property, and for an accounting.

<p>Judgment — Decision as to Jurisdiction — Collateral Attack. Where a party appears specially to object to a proceeding for want of due service, and the court, having jurisdiction of the subject-matter, decided that due service was made and that it has jurisdiction to proceed to judgment on the merits, such judgment cannot be collaterally attacked for want of service.</p> <p>Courts — Motions — Jurisdiction — Judgment — Vacation —Res Judicata. Under Bal. Code, § 4766, giving an attorney authority to bind his client by agreement, and Id., § 4668, authorizing a superior judge of one county to hold a session of the court at the request of the judge of another county, at the seat of judicial business, and Laws 1901, p. 76, § 2, authorizing any judge who has heard a motion or case in any county outside his district to decide or determine the same in any county in the state, the parties to an action in D. county may stipulate that a motion to vacate the judgment may be heard at the county seat of S. county, before the superior judge of W. county, and upon entry of an order accordingly and transfer of the papers, such trial judge has jurisdiction to hear and decide the motion, the parties having appeared by counsel and argued the same; and his order is res judicata.</p> <p>Judgment — Appearance — Consent — Jurisdiction — Hearing at Chambers. After appearance before a judge and presentation of a motion, it cannot be objected that the judge heard the motion “in chambers” instead of in open court in the court house, Const, art. 4, § 6, providing that the eourts shall always be open.</p> <p>Judgment — Vacation—Conclusiveness—Motion as Bab to 'Action. Where a motion to vacate a judgment is made within one year, under Bal. Code, §§ 5153, 5156, and the motion is denied and no appeal taken, the order is res judicata and a bar to an independent action to vacate the judgment on the same grounds.</p> <p>Judgment — Vacation—Fraud oe Attorney — Erbob oe Law. A judgment will not be vacated because of collusion of the party’s attorney in stipulating to dismiss an appeal, where it appears that he only made an error of law, “intending to bring another action,” which however was barred by the former judgment.</p> <p>Judgment — Estoppel by Recoed — Parties—Criminal and Civil Cases. A husband who had obtained a divorce is not estopped from asserting the validity of the decree, when attacked by the wife, by the fact that he successfully defended a prosecution for perjury in obtaining the divorce by insisting that the evidence showed the judgment of divorce to be void for want of due service of process; since the parties were not the same in the two proceedings.</p> <p>Divorce — Action to Vacate — Concealment oe Property. A decree of divorce will not be vacated, after the remarriage of the plaintiff, because a large amount of community property had been concealed from the court and was not disposed of; since the same becomes common property, and can be recovered in a proper action.</p>

<p>Contracts — Performance—Evidence—Sufficiency. In an action to recover one thousand dollars due upon the performance of a contract to furnish certain amusement attractions for one month, a verdict for $525 is supported by the evidence, where it appears that plaintiff performed the contract in so far as not excused or prevented from performing by the defendant.</p> <p>Appeal — Review-—-Verdict. A verdict will not be set aside when supported by substantial evidence, even if contrary to the opinion of the court.</p> <p>Appeal — Error Favorable to Appellant — Trial—Verdict. A verdict for a less sum than was due for complete performance of a contract, is not a conclusive finding of nonperformance in its entirety; and is not error prejudicial to the defendant.</p>

, entered August 4, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a policy of fire insurance.

, entered March 6, 1909, adjudging a public use and awarding damages in a proceeding to condemn property for railway purposes, after a trial before the court and a jury.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered December 5, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for libel.</p>

, entered August 31, 1908, dismissing, at the close of the evidence, an action to recover the purchase price of live stock, after a trial on the merits before the court without a jury.

, entered February 1, 1909, in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to restrain the diversion of the waters of a ditch.

, entered February 16, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to declare a trust in real property.

kane county, Kennan, J., entered January 18, 1909, after a trial on the merits before the court without a jury, dismissing an action for an injunction.

, 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 damages sustained through a collision.

<p>Appeal — Decisions Reviewable — Final Orders. An order requiring the payment of suit money as a condition precedent to the hearing of a petition to vacate a fraudulent judgment of divorce, in default of which the opposing party might move for a dismissal of the petition, is appealable, under Bal. Code, § 6500, authorizing appeals from final judgments or orders which in effect determine the action or prevent a final judgment therein.</p> <p>Appeal — Review—Discretion. The discretion of the court in imposing terms as a condition precedent to the vacation of a default judgment, is not an arbitrary one that may- not be reviewed on appeal.</p> <p>Divorce — Judgment—Vacation—Imposition oe Terms. Where a default judgment of divorce was secured by a wife through fraud, and all the property was awarded to her and in her possession, and it does not appear that the husband has any means, it is error to require the husband to pay $50 suit money as a condition precedent to the prosecution of a petition to vacate the decree.</p>

, entered April 27, 1908, upon sustaining a demurrer to the information, dismissing a prosecution for the crime of obtaining money under false pretenses.

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered December 9, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee engaged in the construction of a battleship.</p>

, entered January %&, 1909, upon findings in favor of the defendants, dismissing an action to restrain the collection of taxes, after a trial on the merits before the court without a jury.

, entered May 25, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to obtain a reduction of taxes assessed against a water works system.

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered July 24, 1908, upon the verdict of a jury assessing damages in a proceeding to condemn land for street purposes.</p>

<p>Actions — Nature and Form — Legal or Equitable — Trusts—Damages. A cause of action for damages is stated, and it is error to sustain a demurrer, where the complaint alleged the transfer of property of the value of $2,700 to trustees for the purpose of sale, $1,300 of debts to be paid out of the proceeds, and that the trustees, fraudulently conspired with another and privately sold the property for $900; since no necessity for an accounting of the trust appears; or if shown by answer, the case can be tried either in equity or at law, the defendants not being confined to the issues tendered.</p>

<p>Appeal from a judgment of the superior court for Klickitat county, McCredie, J., entered October 5, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through the premature explosion of a blast.</p>

<p>Contracts — Consideration—Morad Obligation — Ebauds, Statute or. An oral contract with, a broker to pay commissions on the sale of real estate, void under the statute of frauds, raises a moral obligation which is sufficient consideration to support a subsequent written agreement to pay the same, after the rendition of the services.</p> <p>Appeal from a judgment of the superior court for King county, Griffin, J., entered May 15, 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. Affirmed.</p>

<p>Appeal from a judgment of the superior court for King-county, Albertson, J., entered October 13, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to vacate a tax. deed and to quiet title.</p>

, entered March 5, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action for specific performance.

<p>Libel and Slander — Communications Libelous Per Se. It is libelous per se for the physicians in an office building to sign and publish a petition to the owners of the building reciting that they as reputable physicians, desiring to uphold the honor of their profession, demanded the removal from the building of osteopaths . . . criminal practitioners . . . fakirs, quacks, charlatans and other fraudulent concerns and . . . undesirable tenants, intending to refer to the plaintiff, who was a duly licensed osteopath having an office in the building.</p> <p>Same — Privileged Communications — Interest — Abuse of Privilege. Such a publication is not privileged from the fact of the interest of the parties; and the publication of the same in the newspapers would be an abuse of any privilege; also, an abuse in going beyond the necessities of the case.</p>

, entered November 24, 1908, upon findings in favor of the plaintiff, after a trial on the merits be.fore the court without a jury, in an action to foreclose a mechanics’ hen.

, entered January 4, 1909, granting a temporary injunction and refusing to vacate the same, after a hearing on the merits before the court, in an action to restrain the construction of a sidewalk.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered July 2, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger while landing from a steamboat.</p>

<p>Damages — Contract—Breach—“Liquidated Damages.” A stipulation in a contract for tbe exchange of real estate to pay and forfeit the sum of $500 as liquidated and agreed damages for nonperformance of the contract hy either party, is to be construed as liquidated damages and not as a penalty, since the damages suffered by a breach are uncertain, and the sum stipulated is not disproportionate to the probable damages, or unconscionable.</p>

, entered December £1, 1907, in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action for equitable relief.

<p>Municipal Corporations —• Streets — Vacation — Hearing — Continuance. A city council Laving obtained jurisdiction, by petition and notice, to vacate a street, jurisdiction is not lost by postponing the hearing without entering a continuance to a day certain or giving notice of the time.</p> <p>Same — Power to Vacate — Procedure. City councils have no power to vacate streets except as delegated by the legislature, and the procedure therefor must be strictly followed.</p> <p>Same — Replats—Power to Modify — Statutes — Construction. Under Laws 1903, p. 139, authorizing street vacations and replats, upon the filing of a replat, “accompanied with a petition for the change desired” by three-fourths of the owners, which the council may approve or reject, and “assess damages or benefits, award the same and make such order in the premises as justice and the public welfare may require,” the council has no power to modify the proposed replat, hut must approve or reject it in its entirety, and an order approving part of the vacation petitioned for is void.</p> <p>Same — Repeats—Power to Modify — Statutes. Laws 1903, p. 139, requiring a proposed replat for street vacations to be filed showing the changes petitioned for by three-fourths of the owners, and giving the city council complete jurisdiction to inquire into and determine the merits, assess damages or benefits, award the same, and make orders required by justice and the public welfare, the city council can only approve or reject the petition in its entirety, and an order altering the proposed replat is void; the orders required by justice, etc., referring to the necessary assessments and awards, and not to modifications of the replat.</p> <p>Eminent Domain — Use of Streets — Right of Abutters — Compensation. An abutting owner cannot be deprived of his right to the use of the full width of the street without just compensation.</p> <p>Same — Rights of Abutters — Injunction—Special Injury. An abutting owner deprived of his right to the use of the full width of the street immediately in front of his lot, by a void order vacating a portion of the street, is specially injured and may maintain an action to enjoin the- proceeding, but only so far as it affects his property.</p> <p>Same — Improvements — Assessments — Remedy by Appeal — Injunction. Where a city council had jurisdiction to approve or reject a petition for a replat, and to assess damages or benefits, the remedy for illegal assessments upon a void order modifying the replat is by the appeal provided by the city charter, and not by injunction.</p>

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

, entered May 9, 1908, upon sustaining a demurrer to the complaint, dismissing an action to enjoin a town from interfering with a water system belonging to the plaintiff.

, entered February 8, 1909, upon granting a nonsuit at the close of plaintiff’s case, dismissing an action to enjoin the maintenance of a drain, and for damages.

, entered September 15, 1908, upon findings in favor of the defendants, after a hearing before the court upon an agreed statement of facts, in an action to quiet title.

<p>Statutes — Title and Subjects — School Laws — Vaccination. Tbe provision in the school law for compulsory vaccination is within and germane to the title “An act to establish a general and uniform system of public schools,” since the title need not be a complete index of the act, and may cover but one general subject, and the clause but defined the class of persons permitted to attend school and includes the means of effecting the object sought.</p> <p>Schools and School Disteicts — Conditions of Membebshep— Statutes — Repeals—Conflict. The act, Laws 1907, p. 569, providing for compulsory attendance upon the public schools, does not conflict with or impliedly repeal the prior act, Laws 1905, p. 2'62, § 3, subd. 9, providing that successful vaccination shall be required as a condition precedent to school membership; and the two acts together require compulsory vaccination.</p> <p>Same — Compulsoby Attendance and Vaccination. The legislature has power to require all minors to attend the public schools and all pupils to be vaccinated.</p> <p>Same — Statutes—Exceptions Peesumed. In a law for the compulsory vaccination of all pupils attending the public schools, an exception will be presumed in favor of individuals whose health is such as to render the operation dangerous or injurious.</p> <p>Same — Exceptions—Statutes—Definiteness. A law requiring “successful vaccination” of school children is not too indefinite for enforcement because of its failure to define the terms used; and permitting attendance after the usual reaction, or after three operations without reaction, is not a violation of the statute, but a recognition of an intended exception.</p>

<p>Appeal — Review—Pleadings—Harmless Error. Error in overruling a demurrer to a petition in condemnation, because of failure to allege that all of tbe capital stock of tbe condemning railroad company had been subscribed, will be disregarded on appeal where the evidence showed that all its stock had been subscribed.</p> <p>Eminent Domain — Defenses—Alienage of Stockholders. The objection that the stock of a railroad company seeking to condemn property is held by aliens must be raised by plea in abatement or by proof offered in defense.</p> <p>Same — Conditions Precedent — City Franchise. The obtaining of a city franchise to cross streets is not a prerequisite for the condemnation of a railroad right of way.</p> <p>Same — Proceedings—Review—Scope. On certiorari to review an adjudication of public use and necessity, objection cannot be made to the setting of the case for trial on the subject of damages.</p>

, entered November 12, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an operator of a planing machine.

, entered January 19, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to restrain the enforcement of a city ordinance.

<p>Municipal Corporations — Assessments—Special Funds — Wrongful Diversion — Prejudice. A wrongful diversion of a special street fund, to tbe prejudice of tbe plaintiff, is not shown where it appears that, if none of the wrongful acts complained of had been committed by the city authorities, the special fund would have been exhausted by the payment of warrants in their order prior to the warrant held by the plaintiff.</p>

, entered November 25, 1908, upon findings in favor of the defendant, after a trial on the merits before the court in garnishment proceedings.

J., entered February 10, 1909, granting a temporary injunction, after a hearing before the court upon the pleadings and affidavits.

<p>Public Lands — Mines and Minerals — Leases — Statute — Construction. The commissioner of public lands is not limited in the execution of leases of state mineral lands, for prospecting purposes, to the government legal subdivisions of a section, by the proviso to Laws 1901, p. 313, authorizing the changing of boundaries to conform to the section lines, since the law permits a lease for “any amount not to exceed eighty acres,” and should not be construed to authorize the leasing of other than mineral lands.</p> <p>Statutes — Construction bt Executive Departments. The construction placed upon a statute by the executive department does not control the courts when it deprives a citizen of valuable rights accorded him by the law.</p> <p>Public Lands — Mines and Minerals — Leases—Discretion. Laws 1901, p. 313, providing for the leasing of state lands to the discoverer of previous minerals, leaves no discretion in the commissioner of public lands where the law has been complied with.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered January 16, 1909, approving the final account of an executor, after a hearing before the court.</p>

, entered December 12, 1908. upon the verdict of a jury rendered in favor of the plaintiffs, for $3,500 for personal injuries sustained through an obstruction placed upon a sidewalk.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered December 9, 1908, upon sustaining demurrers to the complaint, dismissing an action on contract.</p>

, entered February 13, 1909, upon the verdict of a jury rendered in favor of the defendants, by direction of the court, in an action for personal injuries resulting from a collision at a railway crossing.

, entered March 20, 1909, in favor of the plaintiffs upon stipulated facts, after a trial before the court without a jury, in an action to restrain a city in the collection of an assessment and from paying warrants issued in payment of a local improvement.

Cross-appeals from a judgment of the superior court for King county, Albertson, J., entered March 27, 1908, upon findings awarding plaintiffs reimbursements for improvements, after a trial on the merits before the court without a jury, in an action to quiet title.

<p>Constitutional Law — Privileges of Citizens — Peddlers — Discrimination Between Classes. Laws 1909, p. 736, requiring a county license from peddlers, except peddlers of agricultural and farm products, and books, periodicals - and newspapers, does not arbitrarily discriminate between persons in substantially the same situation, but the classification is reasonable and germane to the object and purposes of the legislation and therefore constitutional.</p> <p>Same — Discrimination Between Localities — Delegation of Power. Laws 1909, p. 736, requiring a county license from all peddlers except in cities and towns when their licensing is regulated by such cities or towns, is not an unconstitutional discrimination between classes, since the legislature may delegate, as a revenue measure, the power on the subject to cities and towns, and it is not necessary that the police power be exercised by uniform regulations throughout the state.</p> <p>Same — Discrimination Between Classes. Laws 1909, p. 736, requiring a license fee of $100 from peddlers on foot, $150 and $250 from peddlers with one and two horses, and $300 from peddlers with other conveyances, is not unconstitutional as exacting unequal fees, as the classification is a proper basis for measuring the license fee.</p> <p>Statutes — Provisos — Repugnancy — Hawkers and Peddlers— License. The proviso to Laws 1909, p. 737, § 3, that county peddlers’ licenses shall expire by limitation on the second Monday in January succeeding the year in which they were issued, is wholly inconsistent with and repugnant to the body of the act requiring the issuance of an annual license authorizing the licensee to do business for the term of one year from the date thereof, and is therefore inoperative and void.</p> <p>Hawkers and Peddlers — License Pee — Reasonableness. An annual county license fee of $100 from peddlers on foot, $150 and $250 from peddlers with one and two horses, and $300 from peddlers with other conveyances, is not excessive, where regarded as an exercise of both the police and taxing power.</p>

, entered January 5, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, -in an action to restrain a county from interfering with fences constructed across a temporary right of way.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Yakey, J., entered November 35, 1908, upon a trial and conviction of the crime of perjury.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered October 29, 1908, in favor of the defendant, upon sustaining a demurrer to the complaint, in an action against a county to recover money collected upon a bail bond.</p>

<p>Taxation — Judgment and Sale — Vacation—Merits—Tender of Tax. The rule tbat an action to vacate a judgment cannot be maintained without an allegation of a meritorious defense has no application to proceedings to vacate a void tax judgment, the statute requiring only a tender of the taxes paid; such tender and the validity of the tax judgment being, moreover, a meritorious defense.</p> <p>Judgments — Recitals—Presumptions—Findings of Fact. The rule that recitals in a judgment showing jurisdictional facts raise a presumption of jurisdiction has no application to recitals in findings of fact, especially in an equity case where findings are not necessary.</p> <p>Same — Evidence on Service — Presumptions. The presumption irom recitals of due service of process in a judgment is only prima facie and may he overcome by proof that none other than the void summons on file was served.</p>

<p>Appeal — Notice—Parties to Be Served. Upon appeal from an order of sale of appellant’s property to satisfy one of several liens established by a judgment, in which only the appellant and such lien claimant are interested, notice of appeal need not be served on any of the other parties to the action.</p> <p>Appeal — Record — Preservation of Grounds — Statement of Pacts — Questions for Review. Where the only question on appeal is the power to engraft an order of sale upon an original judgment, after modification on a prior appeal, a statement of facts and the entire record in the original action need not be brought up on appeal, the original Judgment, the motion, order of sale and notice of appeal being sufficient to review the question.</p> <p>Appeal — Decision—Judgments — Conclusiveness — Parties and Matters Concluded. Where, upon an appeal 'by a surety company from a judgment establishing claims against it in favor of codefendants, the supreme court held that a certain Hen claimant had no claim against the surety company, and neither the plaintiff nor the claimant had taken any appeal, the judgment of the lower court is conclusive as between them, and the supreme court cannot modify the judgment by a decision allowing the claimant to collect the amount of its Hen from the plaintiff, nor can the superior court issue, or engraft upon the original judgment, an order of sale of plaintiff’s property to satisfy the Hen.</p>

<p>Brokers — Commissions—Agreement to Pay — Evidence—Sueeiciency. Tbe verdict of a jury, for $1,000 for an agreed broker’s commission, on tbe sale of a gas plant, should be set aside for want of any substantial evidence to justify it, where, in answer to special interrogatories, tbe jury found that tbe plaintiff represented that be bad, and that be did bave, an unespired option to control tbe majority of tbe stock of tbe gas company, in consideration of wbicb tbe defendant promised to pay tbe commission, and plaintiff testified that be could not swear that be bad an option and was merely confident tbat there was an option, from statements made by bis partner, and tbe other evidence conclusively showed that be never bad any option.</p>

, entered February 1, 1909, upon granting a nonsuit after discharging the jury, dismissing an action for personal injuries.

<p>Mandamus — When Lies — Change op Venue — Remedy by Appeal. The remedy by appeal is inadequate, and mandamus lie's to correct an improper change of venue; since the supreme court cannot assume that jurisdiction will be assumed in the wrong county; nor on appeal from a judgment in such county, direct a trial in the proper county.</p> <p>Venue — Change—Transitory Action. An action to establish and enforce a trust in real and personal property is transitory, as the decree acts in personam, and the venue is properly changed to the county of defendants’ residence.</p>

<p>Libel and Slander — Libel Per Se — Credit Reports. The report of a mercantile agency is not libelous per se, where it simply gave plaintiff a rating which is stated not to be a credit rating, but that the agency preferred to furnish information upon application at the office; since the words are to be considered in their natural sense, are innocent without the aid of special knowledge, and do not imply malice, or hold the party up to public ridicule or involve moral turpitude.</p> <p>Same — Credit Report to Coerce Payment. It cannot be said, as a matter of law, that such a publication was made to extort money or coerce payment of a debt held by the agency for collection so as to make the same libelous per se, within the rule allowing a recovery in the case of publications showing blackmail on their face.</p> <p>Same — Special Damages — Pleading. In order to render such a publication actionable, the words not being libelous per se, the special damages resulting from loss of credit must be specifically set out, showing the names of parties refusing credit or withdrawing custom, or that it is impossible to do so.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered May 29, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action by a mortgagee to recover money deposited to protect a mortgage lien.</p>

<p>Logs and Logging — Contracts—Construction. In the absence of positive testimony or proof of custom, one who contracts to remove and deliver timber is presumed to supply all necessary means and appliances, and cannot recover on a quantum meruit for building a logging road to facilitate his operations.</p> <p>Pleadings — Separate Counts — Repetition. It is inconsistent with the spirit of the code to permit a person who has but one cause of action to allege, as distinct causes, one upon contract and another upon quantum meruit, as permitted at common law to avoid a variance; but he must state one cause in concise language without repetition.</p> <p>Election oe Remedies — Contracts—Breach. Upon breach of a contract whereby plaintiff was prevented from completing performance, he may elect to sue on the contract for partial performance and loss of profits, or waive the contract and recover upon quantum meruit, hut he cannot pursue both remedies.</p> <p>Trial — Instructions—Issues and Prooe — Submission—Election oe Remedies. Where plaintiff alleged in distinct counts, one cause of action for breach of contract and loss of profits, and another on quantum meruit covering the same suhject-matter, it is error to submit the latter issue to the jury where there was no evidence to warrant it; and is prejudicial, requiring a reversal (although no election was demanded), where it cannot be determined whether the verdict was based upon the true or false issue.</p>

, entered September 29, 1909, directing the payment of suit money and alimony pending an action for separate maintenance:

, entered March 12, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to quiet title.

<p>Appeal from a judgment of the superior ctiurt for King county, Gilliam, J., entered January 6,1908, upon the verdict of a jury rendered in favor of the plaintiff for $6,375, for personal injuries sustained by an employee in a shingle mill.</p>

Appeal by plaintiff from a judgment of the superior court for Pierce county, Shackleford, J., entered June 17, 1909, upon the verdict of a jury rendered in favor of the defendant Bell Fuel Company, in an action for personal injuries caused by a runaway team; also, appeal by defendant Armstrong from an order for a new trial as to him, after having been granted a nonsuit at the trial.

<p>Trial — Instructions as a Whole. Error cannot be assigned upon the giving of instructions which as a whole fairly presented the case to the jury.</p> <p>Same — Requests. It is not error to refuse requested instructions which were covered in the general charge.</p> <p>Trial — Verdict—Special Interrogatories — Discretion. The refusal to submit special interrogatories to the jury is discretionary and will not be reviewed except for manifest abuse of discretion.</p> <p>Trial — Verdict—Special Findings — Consistency. Where, in an action on contract, the defense relied upon the plaintiff’s failure to secure a certain option, and there was a dispute between the parties as to whether the agreement for obtaining the option was entered into at San Francisco or was arranged between the parties by letter and completed subsequently, the finding of the jury, in an answer to an interrogatory, that the plaintiff did not obtain an option “in accordance with the agreement made in San Francisco,” is not inconsistent with a general verdict for the plaintiff, but implies that the option was obtained subsequently; since special findings susceptible of a construction conforming to the verdict will be so construed.</p>

, entered May 15, 1909, in favor of the defendants, upon sustaining a demurrer to the complaint, in an action to recover attorney’s fees.

, entered April 14, 1909, upon the verdict of a jury rendered in favor of the defendant, in an action to recover possession of mining claims.

<p>Brokers — 'Commissions — Evidence — Sufficiency. Defendants cannot escape liability for commissions for securing a loan, upon the plea that their signed application was merely tentative and to determine whether a loan could be made, where a contract for the commissions was signed, the broker procured a party ready and willing to make the loan on the terms proposed in the application, and the conditions insisted upon as to the title were covered by the application.</p> <p>Same — Defenses—Acting as Agent fob Both Pasties. A broker may act as agent of both parties, and is entitled to commissions agreed to be paid by one party, with knowledge that he was agent for the other party.</p> <p>Husband and Wife — Community Debt — Liability of Wife— Broker’s Commissions. The wife is liable, as a member of the community, upon the husband’s contract to pay a commission for securing a loan which was a community debt contracted in the management of the community estate.</p> <p>Courts — Review of Its Own Decisions — Different Judges. A decision by the trial judge upon deciding the case is not affected by the fact that another judge had ruled differently in deciding a demurrer in the case.</p>

.Appeal from a judgment of the superior court for King county, Kauffman, J., entered December 8, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on contract.

Appeal by intervener from an order of the superior court for Thurston county, Linn, J., entered May 4, 1908, in favor of the plaintiff, upon sustaining demurrers to the answer and complaint in intervention, in proceedings to condemn certain water rights and an easement.

<p>Appeal from a judgment of the superior court for King county, Main, J., entered September 10, 1909, upon sustaining a demurrer to the complaint, dismissing an action for an injunction.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered April 12, 1909, in favor of the plaintiff, by default, a motion to vacate the same having been denied.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 1, 1909, upon a trial and conviction of the crime of practicing medicine without a license.</p>

, entered December 9, 1908, allowing compensation to a receiver appointed pending the foreclosure of a mortgage, after a trial on the merits before the court.

, entered February 13, 1909, in favor of the defendant, dismissing an action to foreclose a tax certificate, after a trial before the court without a jury.

, entered January 11, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a signalman employed in a logging camp.

, entered March 22, 1909, upon granting a nonsuit at the close of plaintiff’s case, dismissing an action for personal injuries, after a trial before the court and a jury.

Application filed in the supreme court October 18, 1909, for a writ of mandamus to compel the superior court for Pierce county, Clifford, J., to settle and certify a proposed statement of facts.

<p>Appeal from a judgment-of the superior court for King county, Tallman, J., entered January 11, 1909, dismissing an action in tort, upon granting a nonsuit, after a trial before a jury.</p>

, entered September 19, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by the driver of a wagon through a collision with a street car.

, entered February 20, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages sustained through the collision of an automobile and a street car.

, entered January 23, 1909, upon findings in favor of the defendants, after a trial on the merits-before the court without a jury.

, entered November 14, 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>Mandamus — Remedy by Appeal — To Control Actions ok Court— Discretion. Mandamus will not lie to compel a court to render a decision in a cause where, after trial and submission, the court found that other parties were necessary to a complete determination of the case, and ordered them brought in; since the court is exercising its discretion and not refusing to proceed with the cause; and the remedy for error, if any, is by appeal from the final judgment.</p> <p>Same — Refusing to Proceed With Cause — Estoppel. A plaintiff who misleads the court as to her course, after being ordered to bring in new parties, delaying many months without action, is not in a position to complain of the dilatoriness of the trial judge, where he proceeded with reasonable diligence as soon as plaintiff’s refusal to bring in new parties was made known.</p> <p>Dismissal and Nonsuit — Necessary Parties — Refusing to Bring In — Rights of Interveners. An action to determine the right to the waters of a stream cannot be dismissed on plaintiff’s refusal to bring in new parties, after other parties had by leave of court intervened and ashed affirmative relief.</p> <p>Parties — New Parties. The right of the court to order necessary parties to be brought in is inherent, and is conferred by Bal. Code, §4840.</p>

<p>. Malpractice — Negligence—Evidence—Sufficiency. There is sufficient evidence of negligence to make a case for the jury, in an action for malpractice, in the use of infected and unsterilized instruments from which a disease might have been contracted, where the defendant denied plaintiff’s statement that he took the instruments from a drawer without cleansing them or that he ever did so or kept them there, and two other witnesses testified that on similar examinations made by him he took the same instruments from the same place and used them in the same way that plaintiff described.</p> <p>Same. There is sufficient evidence to sustain a verdict for malpractice in the use of infected and unsterilized instruments from which a disease might have been contracted, where there was evidence tending to show the negligent use of instruments, without cleansing, that prior thereto plaintiff was free from the disease and could have contracted it in no other way, and became affected within the usual time thereafter for the disease to germinate; as it was only necessary to show a chain of circumstances from which the ultimate fact might reasonably be inferred.</p> <p>Trial — Province of Court and Jury — Expert Evidence. A statement by expert witnesses that a disease cannot develop under certain conditions does not require withdrawal of the issue from the jury, where there was a question for the jury as to the existence of the facts recited on which the conclusion was based.</p> <p>Evidence — Opinions—Medical Experts. A hypothetical question to a medical expert may embody the very fact ultimately to be found, where the inference from the facts proven involved a question of medical science on which the expert’s opinion was proper.</p> <p>Appeal — Review—Harmless Error — Instructions—Measure op Damages. In an action for malpractice it is not reversible error to refuse to give an instruction that the jury could not take into consideration the loss of service or earnings of the plaintiff, which had been alleged in the complaint, where there was no evidence on that subject in the case, and it does not affirmatively appear that the jury went out of its way to find an issue on that subject.</p> <p>Damages — Injuries From Malpractice — Measure—-Instructions. In an action for malpractice in negligently communicating a loathsome disease, an instruction on the measure of damages properly submits to the consideration of the jury the plaintiff’s physical and mental pain, loss of time, humiliation and disgrace, and expense of effecting a cure, including physician’s charges and medicines.</p> <p>Damages — Injuries—Malpractice—Excessive Verdict. A verdict for $4,000 for malpractice in negligently communicating a private disease by the use of infected instruments, is excessive, and should be reduced to $2,000, where the plaintiff was fully cured without permanent disability, and her losses were less than $200, the balance being for pain and suffering, which must be limited to compensatory damages.</p> <p>Morris, J., dissents.</p>

, entered July 14, 1908, upon sustaining a demurrer to the complaint, dismissing an action to recover real property and to vacate a tax deed.

Cross-appeals from a judgment of the superior court for Spokane county, Kennan, J., entered February 6, 1908, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.

, entered March 20, 1909, 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.

<p>Appeal — Review—Verdicts. The verdict of a jury upon conflicting evidence is conclusive on appeal.</p> <p>Master and Servant — Assumption of Risks — Safe Place. Coal miners, who are paid extra for work in putting in props to protect the safety of the place, do not assume the risk of insufficient props where the work was done under the direction and control of a pit boss whose duty it was to supervise and inspect the work.</p> <p>Same — Coal Mines. The duty of a master to supply a safe place in which to work applies to a coal mine where the miners put in props to secure safety under the direction and control of a pit boss who supervised and inspected the work.</p> <p>Same — Contributory Negligence — Assumption of Risks — Safe Place. A coal miner is not guilty of contributory negligence and does not assume the risk of the unsafety of the place in which he works, where injury resulted from a condition at another place, and could have been discovered only by an examination which it was not his duty to make.</p> <p>Same — Safe Place — Duty of Inspection- — Pleading and Proof. Under a complaint by a coal miner for negligence in not supplying a safe place to work, the walls of the mine having fallen in, evidence as to the master’s duty to make an inspection is admissible, since the duty to furnish a safe place necessarily requires inspection.</p> <p>Same — Fellow Servants — Pit Boss and Miners. A pit boss in a coal mine is not a fellow servant, but is a vice principal, of miners with reference to the putting in of props under his direction and control.</p> <p>Same — Safe Place — Preparation by Other Servants. While the master is not an insurer, a coal miner working in one- battery, and injured by the fall of walls in another battery where the propping was negligently done by other miners, may recover on the theory that the master guarantees the safety of the place to work prepared by him.</p> <p>Appeal — Review—Instructions Requested by Appellant. An appellant cannot complain of contradictory instructions which should not have been given, where they were given at his request.</p> <p>Trial — Instructions—Ordinary Care — Pbovince op Court and Jury. It is not error for the court to refuse to determine for the jury the exact standard of ordinary care, but it is sufficient to state the general principles of law governing the case.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $30,000 for injuries sustained by a coal miner twenty-four years of age, is excessive and should be reduced to $22,000, where it appears that both legs were paralyzed and he had lost control of his bowels and urinary organs, but that he was able to go about on crutches, and there was some hope for improvement, and the complaint limited his earning capacity to $150 per month.</p>

<p>. Appeal from a judgment of the superior court for King county, Tallman, J., entered January 8, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action for damages.</p>

, entered October 22, 1909, upon sustaining a demurrer to the application, denying a writ of mandate to compel a city clerk to register the name of the relator upon the poll books.

<p>Appeal — Review—Findings—Municipal Corporations — Assessments. Findings on conflicting evidence as to tbe extent of tbe district and tbe benefits from a local improvement assessment, will not be disturbed unless tbe evidence so clearly preponderates as to show abuse of discretion, and an arbitrary or manifestly oppressive judgment.</p> <p>Municipal Corporations — Assessments—Reasonableness. Tbe amount of previous assessment is immaterial on tbe question of tbe reasonableness of an assessment.</p> <p>Same — Reassessments—Interest. Upon a reassessment, interest on tbe amount of tbe condemnation awards is properly added.</p>

, entered January 1908, upon sustaining a challenge to the sufficiency of the evidence, dismissing an action for personal injuries, after a trial before the court and a jury.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered November 4,1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action on contract.</p>

, entered January 11, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for equitable relief.

, entered May 15, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to establish a lien under a conditional sale contract.

<p>Pleading — Variance—Failure of Proof — Amendments. A verdict for plaintiff, in an action for the conversion of horses shipped by defendants’ road, cannot be sustained upon evidence of a breach, of defendants’ contract of carriage, as against a motion for nonsuit or judgment non obstante veredicto; as amendments to conform to proof do not permit allegation of one cause and proof of an entirely different cause.</p> <p>Carriers — Of Live Stock — Conversion—Breach of Contract— Evidence — Sufficiency. A carrier, removing from a car horses that had been burned and were suffering intensely, for the purpose of treatment and as an act of humanity, is not guilty of a conversion, although the removal was objected to by the shipper and there was conflict in the evidence as to whether they could have stood the balance of the trip.</p> <p>Trial — Directed Verdict — Province of Court and Jury. A verdict of dismissal non obstante veredicto may be granted where, under the facts, no possible recovery could be had.</p> <p>Carriers — Of Live Stock — Conversion—Breach of Contract— Variance. A verdict for plaintiff, in an action for conversion of horses, taken by defendant, a carrier, from the car during transportation, for the purpose of treatment for burns caused by a fire in the car, cannot be sustained on the theory of breach of the contract of carriage and negligence of the defendant in setting the fire, where the complaint was based solely upon the ground of conversion, the jury were instructed that it was immaterial whether the fire was negligently set by the plaintiff or defendant, and the evidence of negligence was admitted only upon the defendants’ counterclaim for charges in treating and caring for the horses.</p>

, entered February 8, 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 foundry.

, entered February 11, 1909, upon findings in favor of the plaintiffs, after a trial on the merits' before the court without a jury, in an action on an indemnity bond.

, entered November £8, 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 December 19, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the coui’t without a jury, in an action on contract.

, entered February 1, 1909, in favor of the plaintiffs, upon overruling a demurrer to the complaint, in an action to set aside an ordinance vacating a street.

, entered April 12, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a promissory note.

, entered October 28, 1908, in favor of the plaintiff, upon dismissing defendant’s cross-complaint, in an action for the appointment of a receiver for a corporation, and for an accounting.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered March 28, 1908, upon a trial and conviction of the crime of burglary.</p>

, entered December 22, 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 — Notice-—Time for Taking. Where judgment was rendered February 3, and filed the next day, a notice of appeal and appeal bond served and filed May 3, is within the ninety days provided by Bal. Code, § 6502.</p> <p>Same — When Time Begins to Run — Entry of Judgment — New Trial. Where, after a judgment on a verdict, a motion for a new trial is denied and a new judgment ■ entered on motion of the successful party, he is estopped to deny that the latter is the final judgment, and it vacates the former, and time for taking an appeal begins to run from that time.</p> <p>Landlord and Tenant — Lease — Appurtenance — Implied Easement — Side Entrance. Where a lease of a room for a restaurant, in a hotel building, which had a front entrance on the street, and a side entrance into the lobby of the hotel which was a convenience but not necessary to the beneficial use of the property, the side entrance is not an appurtenance and there is no implied easement rendering the landlord liable in damages for closing the same.</p> <p>Damages — To Leased Premises — Approximation — Evidence— Sufficiency. Damages need not be shown with precision and accuracy, and a verdict for $250 for damages to leased premises, by reason of negligence of the landlord in repairing a building, is not unsupported or based on conjecture, where the walls were injured and the place of business closed while tenants made repairs, at an expense estimated by them at five or six hundred dollars.</p>

, entered December 19, 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>Appeal from a judgment of the superior court for King county, Neterer, J., entered February 8, 1909, upon sustaining demurrers to the complaint, dismissing an action for libel.</p>

<p>Appeal from an order of the superior court for King county, Albertson, J., entered May 28, 1909, granting defendant a new trial in an action on promissory notes.</p>

<p>Taxation-Foreclosure-Summons-Certainty-Description of Land. A tax foreclosure summons is not so uncertain as to render the judgment void merely because of the use of the word “or” instead of “of” in describing the “N. E. % of the S. W. *4” of a certain section, where it was followed by “40 acres,” denoting the quantity of the land.</p>

, entered November 7, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained upon a defective sidewalk.

, entered July 7, 1909, upon granting a nonsuit at the close of plaintiff’s case, after a trial before a jury, in an action for personal injuries.

, entered April 8, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained at a railroad crossing.

, entered March 24, 1909, upon findings in favor of the defendants, in an action to recover land sold for taxes, after a trial on the merits before the court without a jury.

, entered April 1, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained at a railway crossing.

<p>Damages — Injury to Horse — Measure of Damages. The measure of damages for injury to a horse is the diminished market value after cure, and expense in reasonable attempts to effect a cure, with reasonable compensation for loss of use, provided the whole damages do not exceed the original value of the horse.</p> <p>Pleading — Amendment to Conform to Pboof. It is not error to allow the complaint to be amended to conform to proof increasing the damage claimed for injury to a horse, where there was no motion to strike the evidence or claim of surprise or demand for time to meet the amendment.</p> <p>Damages — To Personal Property — Excessive Yebdict. A verdict for damages for injury to personal property is not excessive where there was no dispute as to the items, which were all within the measure of damages allowable.</p>

<p>Appeal from an order of the superior court for King county, Albertson, J., entered November 11, 1908, confirming an assessment roll for a local improvement, after a hearing on the merits.</p>

<p>Appeal from a judgment of the superior court for King county, Warren, J., entered November 2é, 1908, in favor of the plaintiff, upon the pleadings, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J.', entered May 1, 1909, upon a trial and conviction of the violation of a city ordinance, after a trial before a jury.</p>

, entered June 29, 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 shingle mill.

, entered December 31, 1908, upon a verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a passenger in a collision of of street cars.

, entered March S, 1909, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to enjoin an assessment for a street improvement.

, entered February 26, 1909, upon findings in favor of the plaintiffs, in an action to restrain a trespass, after a trial on the merits before the court without a jury.

<p>Appeal from a judgment of tbe superior court for Chelan county, Steiner, X, entered July 14, 1908.</p>

<p>Appeal from a judgment of tbe superior court for Franklin county, Zent, J., entered September 15, 1908.</p>

<p>Appeal from a judgment of tbe superior court for Chelan county, Steiner, J., entered July 14, 1908.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Linn, X, entered May 4, 1908.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, X, entered February 20, 1909, upon findings in favor of the defendants, after a trial before the court without a jury.</p>