Volume 60 — Washington Reports

, entered November 3, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the death of a lineman employed upon an electric railway.

, entered November 5, 1909, denying an application for a writ of habeas corpus to recover the possession and custody of the relator’s minor child.

, entered January 11, 1910, 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.

<p>Appeal from a judgment of the superior court for Douglas county, Grimshaw, J., entered July 10, 1909, dismissing on the pleadings an action for equitable relief.</p>

, entered May 20, 1910, adjudging a public use in condemnation proceeding® for a railroad right of way, after a hearing on the merits before the court.

, entered April 28, 1909, upon the verdict of a jury rendered in favor of the defendants by direction of the court, in an action for personal injuries sustained through a collision with a vehicle.

, entered January 21, 1910, granting a nonsuit in an action upon a beneficiary certificate, after a trial before the court and a jury.

, entered upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to compel the issuance and transfer of the capital stock of a corporation.

, entered June 29, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action of ejectment.

<p>Husband and Wipe — Community Property — Conveyances—Mortgages. In the absence of fraud or deceit, a mortgage upon community property executed by the wife alone is void.</p> <p>Same — Mortgages—Estoppel. A husband, to whom a loan of ?700 was made, secured by a note and mortgage upon community property executed by the wife alone, is not estopped to question the validity of the mortgage lien by the fact that he consented to the execution and delivered the mortgage, and that the community would be liable for money had and received.</p> <p>Estoppel — Pleading. An estoppel must be pleaded.</p>

, entered May 14, 1909, dismissing an action for a writ of mandamus, after a trial on the merits before the court without a jury.

, entered July 1, 1909, upon the verdict of' a jury rendered in favor of the plaintiffs for $17,230, for personal injuries sustained by a ship carpenter while working-upon a vessel.

<p>Constitutional Law — Class Legislation — Hotels — Inspection —Classification. Rem. & Bal. Code, §§ 6030-6049, providing for the inspection of inns, hotels, and public lodging houses having ten or more rooms does not provide an unreasonable classification and does not violate the constitutional prohibitions against class legislation, the deprivation of property without due process of law, the delegation of legislative powers, or the invasion of private rights.</p> <p>Constitutional Law — Imprisonment for Debt — Hotels — Payment of Inspection Fee. Rem. & Bal. Code, § 6046, making it a misdemeanor, punishable by fine or imprisonment, for a hotel keeper to refuse to pay the annual fee for hotel inspection, violates Const., art. 1, § 17, forbidding imprisonment for debt.</p> <p>Statutes — Partial Invalidity — Effect. The constitutionality of § 6146, Rem. & Bal. Code, providing imprisonment for failure to pay the hotel inspection fee, does not affect the validity of the balance of the act providing for the inspection of inns and hotels.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered October 23, 1909, upon a trial and conviction of assault in the first degree.</p>

, entered November 10, 1909, dismissing an action for personal injuries sustained by an employee in a laundry, upon granting a nonsuit.

<p>Appeal — Review—Harmless Error. Error in excluding evidence is immaterial, where it appears from tbe offer of proof that the evidence would have been insufficient to change the determination of the court.</p> <p>Municipal Corporations — Improvements—Contracts—Engineer’s Certificates — Conclusiveness—Bad Faith — Evidence—Sufficiency. Estimates of a city engineer, who was made the final arbitrator in a contract, are conclusive, in the absence of fraud or mistake; and are not shown to be made in bad faith by evidence that measurements of another engineer tended to Show rather more excavation than had been allowed, and that a concrete walk was in places thicker than necessary to secure a uniform thickness of four inches,, the city engineer having exercised his best judgment.</p> <p>Municipal Corporations — Improvements—Contracts—Estimates. —Construction. Where a contract requires the yardage of sand and gravel used in street work to be determined by the cubic yards in the pavement as shown by plans and specifications, the proper method of measurement is the cubic yardage of the completed work, and not the separate yardage before the materials are mixed.</p>

<p>Fraud — Misrepresentation—Solvency—Liability. General misrepresentations as to the solvency of a corporation not confined to any specific work under a contract, renders the defendant liable to plaintiff for loss thereby sustained in the performance of the contract, including loss on work outside the contract which the parties thereto treated as being within the contract.</p> <p>Same — Solvency—Evidence—Sufficiency. The evidence is sufficient to show the insolvency of a corporation, where but ¡?5,000 of its capital stock was paid in, all of which was used to make an initial payment on a real estate contract, and it had no title or property with which to meet its obligations.</p> <p>Same — Instructions. An instruction in an action for misrepresenting the solvency of a corporation, correctly stating the rule of liability, is not prejudicially erroneous by reason of the addition of the clause that a person making such representations cannot be heard to say that he was a person upon whom no reliance should have been placed.</p> <p>Same. In an action for misrepresenting the solvency of a company, whether the statement of defendant that plaintiff “could not lose by contracting” with the company was a mere opinion and not actionable, depends upon the context and other representations made at the time respecting the solvency of that company; and it is therefore proper to refuse to instruct that it was a mere opinion or prediction.</p> <p>Same — Insolvency—Evidence—Admissibility. In an action for misrepresenting the solvency of a mill company, court proceedings begun against the company for the recovery of the land on which the mill was situated, afterwards settled by removal of the mill and surrender of the land, in which action the defendant represented the company, are admissible on the question of the solvency of the company, and defendant’s knowledge and connection with its business affairs.</p> <p>Same. Evidence that the husband of a stockholder in a corporation owns property is not admissible upon an issue as to the solvency of the stockholder.</p> <p>Evidence — Trial—Admissibility. The admissions of a party against interest are admissible as substantive independent evidence on the opponent’s case in chief.</p> <p>Same — Damages—Evidence—Suepicienct. Where, in an action for misrepresenting the solvency of a corporation, the plaintiff, while unable to segregate all the items of damages resulting therefrom in the performance of a contract, is able to state the entire cost of all the work and what proportion of it was done under the contract, there is sufficient evidence to support a verdict for substantial damages, under an instruction that plaintiff could only recover for loss sustained on work under the contract.</p>

, entered February 6, 1909, upon findings adjudging the conflicting claims of defendants to shares of corporate stock, after a trial on the merits before the court without a jury, in an action of interpleader.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered October 19, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages.</p>

, entered October 9, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a benefit insurance certificate.

, entered, November 4, 1909, upon findings in favor of the plaintiffs, in an action on an indemnity bond, after a trial on the merits before the court without a jury.

Cross-appeals from a judgment of the superior court for King county, Neal, J., entered February 1, X910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

Writ of certiorari by both parties to review an order of the superior court for Spokane county, Hinkle, J., entered March 26, 1910, adjudging a public use and necessity as to part of the lands, and refusing it in part, in proceedings to condemn land for railway purposes, after a hearing on the merits before the court without a jury.

, entered February 28, 1910, after a hearing before the court, adjudging a public use and necessity in proceedings to condemn the use of the waters of a river for logging purposes.

<p>Appeal from a judgment of the superior court for Yakima county, Rigg, J., entered September 7, 1906, upon a trial and conviction of assault.</p>

, entered November 15, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose mortgages.

<p>Vendor and Purchaser- — -Performance — Breach by Vendee— Waiver — Consideration for Promise. Where the purchaser of land agreed to sow one-half of the same in wheat, and deposit one-half of the proceeds to be applied in deferred payments and interest, the acceptance by the vendor of such part of the proceeds does not waive defaults of the purchaser in failing to cultivate half of the land or pay the taxes; and surrender of such money belonging to the vendor would constitute no consideration for a promise to waive the defaults.</p> <p>Vendor and Purchaser — Contract—Breach by Vendor — Damages — Tender of Payment. In an action at law for damages for breach of a contract to convey premises, a legal tender of the amount due on the purchase price is necessary; and it is not sufficient that the purchaser merely asked the vendor if he would accept payment in full and he stated that he would not, where there was no production of the money or offer to produce it.</p>

, entered January 21, 1910, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on implied contract.

Cross-appeals from a judgment of the superior court for King county, Gay, J., entered November 20, 1909, on certiorari to review certain orders of the railroad commission, requiring the furnishing of railroad service and facilities, after a hearing before the court.

<p>Justice oe Peace — Jurisdiction—Municipal Corporations — Violation oe Ordinances — Statutes—Amendment. The amendment of Bal. Code, § 4683, which conferred upon justices of the peace jurisdiction in all criminal causes arising under any city or town ordinance, by Rem. & Bal. Code, § 46, which omitted the reference to city ordinances and provided that justices shall have jurisdiction of all misdemeanors, does not deprive justices in towns of the fourth class of jurisdiction in causes arising under a town ordinance, in view of the intent of the amending act to merely enlarge the jurisdiction, and of Rem. & Bal. Code, § 7735%, providing that the violation of any ordinance of a town of the fourth class shall be a misdemeanor.</p> <p>Justice oe Peace — Venue—Change of Venue — Police Court— Municipal Corporations — Ordinances—Violation. A change of venue lies from a police justice to a justice of the peace, in prosecutions for the violation of a town ordinance, under Rem. & Bal. Code, § 1774, granting the right to a. change of venue in justice court, and § 7748, providing that a police justice in towns of the fourth class shall be governed by the general laws relating to justices of the peace.</p>

, entered March 14, 1910, in favor of the plaintiff, upon overruling a demurrer to the application, granting a writ of mandate to compel a city to pay surplus funds collected upon assessments for a local improvement.

, entered January 31, 1910, upon findings in favor of a third party, claimant to attached property, after a trial on the merits before the court without a jury.

, entered November 20,1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a policy of fire insurance.

Mills, Esq., judge pro tempore, entered September 23, 1909, upon findings in favor of the-plaintiffs, after a trial on the merits before the court without a jury, in an action for specific performance and an accounting.

, entered January 29, 1910, dismissing at the close of plaintiff’s case an action for personal injuries sustained by an employee in railroad construction through the fall of a rock.

, entered March 18, 1910, upon a verdict of not guilty rendered by direction of the court, in a prosecution for opening a saloon on Sunday.

<p>Railroads — Franchises—Forfeiture—Municipal Corporations— Ordinances. A railroad franchise in city streets, granted by ordinance, may be forfeited by a resolution of the city council, in the absence of statutory or charter provisions requiring the forfeiture to be by ordinance.</p> <p>Eminent Domain — Use of City Streets — Franchise—Condition Precedent. A railroad company cannot condemn an abutter’s interest in a city street in which it seeks to lay its railway tracks withoht first obtaining a franchise from the city giving it the right to the use of the streets.</p> <p>Same — Rights of Abutters. An abutter upon a street, whose interests are being condemned by a railroad company seeking to use the street for railroad purposes, after its franchise therefor has been forfeited by the city council, has such an interest in abating the public nuisance in the street as to entitle it to raise the point in the condemnation proceeding that the company has no franchise to use the street.</p>

, entered November 17, 1909, dismissing an action for fraud, upon withdrawing the case from the consideration of the jury after a challenge to the sufficiency of the evidence.

, entered October 18, 1909, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for wrongful death.

, entered March 7, 1910, in favor of the defendant, upon granting a nonsuit in an action for personal injuries sustained by a spectator through a defect in the railing of a balcony.

, entered October 5, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to enjoin the execution of a contract.

<p>Municipal Corporations — Contracts—Bids—Discretion —Declaration op Emergency, Where a city charter provides that if a city council shall “declare an emergency to exist,” competitive bids for the letting of a contract may be dispensed with, the declaration of an emergency is a matter of legislative discretion which cannot be controlled or inquired into by the courts.</p> <p>Same — Rejection op Bids — Award—Discretion. Where a charter provision requires a city council, before letting a contract, to advertise for competitive bids “reserving the right to reject any and all bids,” a discretion is reposed in the council to let the contract to one it considers the “best” bidder; and in the absence of fraud or measurable pecuniary loss to the city showing a manifest abuse of discretion, the courts will not interfere with the rejection of the lowest bid, and an award to a higher bid, on pumping machinery requiring a specified proficiency, a technical and scientific knowledge being necessary to determine between the different manufactures offered.</p>

, entered October 15, 1908, dismissing an action for damages, after vacating a default judgment therein for the plaintiff for want of jurisdiction over the person of the defendant.

<p>Appeal from an order of the superior court for King county, Main, J., entered March 18, 1910, appointing a receiver for a corporation, after a hearing before the court.</p>

<p>Appeal from an order of the superior court for King county, Main, J., entered December 8, 1909, granting an injunction pendente lite after a hearing before the court.</p>

, entered November 24, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an Action for wrongful death.

, entered October 11, 1910, upon sustaining a demurrer to the petition, dismissing an application for a writ of mandamus to the county auditor to compel the placing of relators’ names upon an election ballot.

, entered March 16, 1910, upon sustaining demurrers to the information, dismissing a prosecution for the crime of receiving deposits in a bank with knowledge of its insolvency.

<p>Appeal from a judgment of the superior court for King county, Yakey, J., entered June 16, 1910, upon a trial and conviction of selling intoxicating liquors without a license.</p>

, entered February 25, 1910, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on a policy of fire insurance.

, entered February 11, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for specific performance.

<p>Witnesses — Competency—Husband and Wife — Incest. Tbe wife is not a competent witness against tbe busband in a prosecution for incest, under Rem. & Bal. Code, § 1214, providing that a wife shall not be competent to testify against tbe busband without bis consent, except in a prosecution for a crime committed against her.</p>

<p>Labceny — Ineobmation—Evidence—Admissibility—Insteuctions. Under a prosecution for tbe larceny of meat, groceries and other articles of food supplies, evidence of tbg misappropriations of gunnysacks is inadmissible; and tbe error is intensified by instructing tbe jury that before finding tbe defendant guilty of stealing gunnysacks, they must find that they were of some appreciable value.</p>

, entered March 24, 1910, upon findings in favor of the defendants, after a hearing on the merits before the court, dismissing an action to enjoin the execution of a trust agreement.

, entered June 18, 1910, in fayor of the plaintiff, upon an agreed statement of facts, in an action by a passenger for wrongful ejection from a street car.

, entered March 10, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an oiler in a sawmill.

Application filed in the supreme court October 31, 1910, for a writ of prohibition to the superior court of King county, Gilliam, J., to prevent a trial upon the merits of a petition and affidavit seeldng to contest the nomination of xelator for state senator.

<p>Appeal from a judgment of the superior court for King county, Shackleford, J., entered September 24, 1909, in favor of the defendants, upon granting a nonsuit, dismissing -an action to vacate a tax judgment and deed.</p>

, entered January 11, 1910, 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 collision with a street car.

, entered December 10, 1909, in favor of the defendants, after a hearing on the merits before the court without a jury, dismissing actions to enjoin the collection of taxes.

, entered August 6, 1910, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to reform a deed.

, entered November 27, 1909, in favor of the defendants, upon withdrawing the case from the consideration of the jury, dismissing an action for personal injuries sustained by a stevedore in loading a ship.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered January 3, 1910, upon sustaining a demurrer to the complaint, dismissing an action to vacate •a tax deed.</p>

, entered April 2, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in consolidated actions to foreclose pledges of shares of corporate-stock.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered October 16, 1909, upon a trial and conviction of rape.</p>

, entered May 21, 1910, dismissing an action, upon sustaining a demurrer to a complaint setting up promissory notes and alleging fraud.

Application filed in the supreme court November 2, 1910, for a supersedeas suspending the operation of a judgment of the superior court for Thurston county, Mitchell, J., entered October 28, 1910.

, entered January 81, 1910, 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 March 15, 1910, upon find7 ings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

, entered December 29, 1909, in favor of the defendant, after a trial on the merits before the court without a jury, in an action for specific performance.

, entered May 7, 1910, in favor of the ■defendants, after a trial on the merits before the court without a jury, in an action to vacate a deed.

Motion to dismiss an appeal from a judgment of the superior court for Jefferson county, Still, J., entered April 5, 1910, in an action to vacate a tax judgment and deed.

, entered February 1, 1910, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action of ejectment, and to quiet title.

, entered May 20, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian through an obstruction in a street.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered June 27, 1910. 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 party-wall lien.</p>

, entered April £, 1910, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action upon an account stated.

, entered June 30, 1910, upon findings in favor of the plaintiff, upon an appeal from a decision of the state board of land commissioners, in a contest over the preference right to purchase shore lands.

Cross-appeals from a judgment of the superior court for Pierce county, Shackleford, J., entered April 26, 1910, in favor of the defendant, upon an agreed statement of facts, in an action to recover the unearned portion of a liquor license fee.

, entered April 16, 1910, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, dismissing an action to reform a judgment.

Motion to dismiss an appeal from a judgment of the superior court for King county, Neal, J., entered March 12,1910, in favor of the plaintiff, in an action to foreclose a mortgage.

, entered April 30, 1910, granting a petition for the appointment of guardians, upon findings of the court, in a contest for the custody of a minor.

, entered January 27, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a passenger alighting from a street car.

, entered March 16, 1910, 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.

, entered February 26, 1910, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to recover the funds of an association wrongfully withdrawn from a bank.

<p>Appeal from a judgment of the superior court for King-county, Prater, J., entered November 24, 1909, 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 deed.</p>

<p>Judgment — Conclusiveness—Bab—Nonsuit — Impeachment. A judgment at the close of plaintiffs case upon defendant’s motion for a nonsuit, expressly granting a nonsuit, and for defendant’s costs, is not a bar to another action, under the provisions of Rem. & Bal. Code, §§ 408-410; and its plain recitals cannot be controverted by a showing that it was in fact on the merits.</p>

, entered September 17, 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.

, entered April 18, 1910, 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 materialman’s lien.

, entered April 16, 1910, upon a conviction of assault in the third degree, after a trial upon an information charging assault in the second degree.

<p>Judgment — Vacation—Estoppel—Discretion. It is not an abuse of discretion to vacate a void default judgment against a corporation, where the claim of estoppel to dispute the judgment was met by counter affidavits.</p> <p>Same — Affidavit of Merits. Upon a motion to vacate a default judgment, for the reason that no service was had upon the defendant, an affidavit of merits is not necessary.</p> <p>Same — Time for Application — Laches. A motion to vacate a judgment, void for want of jurisdiction over the person of defendant, may be made at any time without regard to laches.</p> <p>Corporations — Actions'—List of Officers — Failure to File— Effect. Failure to comply with Rem. & Bal. Code, §§ 3691, 3692, requiring a corporation to file a list of its officers with the county auditor, does not prevent the corporation from moving to set aside a judgment secured on service upon one who was not an officer of the-corporation.</p>

<p>. Appeal from a judgment of the superior court for King county, Albertson, J., entered August 18, 1909, upon the verdict of a jury rendered in favor of the city, awarding no damages in a condemnation proceeding.</p>

, entered April 20,1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action, for wrongful death.

Cross-appeals from a judgment of the superior court for Pierce county, Chapman, J., entered February 1, 1910, in favor of the plaintiff, after a trial before the court without a jury, in an action to foreclose a mortgage.

Appeal by plaintiff from a judgment of the superior court for Chehalis county, Irwin, J., entered April 16, 1910, upon the verdict of a jury rendered against one of the defendants, and in favor of the other defendant, in an action in tort.

, entered February 14, 1910, in favor of the defendants, after a trial on the merits before the court, without a jury, in an action to quiet title.

, entered March 4, 1910, in favor of the defendants, after a hearing on the merits before the court without a jury, in an action to foreclose a materialman’s lien.

, entered March 19, 1910, upon the verdict of •a jury rendered in favor of the plaintiffs, in an action for wrongful death.

Cross-appeals from a judgment of the superior court for 'Thurston county, Irwin, J., entered March 11, 1910, upon ■findings in an action of interpleader and for an accounting, after a trial before the court.

<p>Certiorari to review an order of the superior court for Benton county, Holcomb, J., entered March 12, 1910, suspending a temporary injunction.</p>

, entered April 18, 1910, upon findings in favor of the plaintiff, in an action to recover for materials furnished to.a city contractor.

<p>Fraud — Damages—Sales—Representations. Damages for fraud in the sale of furniture and a monthly tenancy of a lodging house are recoverable where the sale was induced by false representations to the effect that the vendor had positive information that the landlord was in Alaska and the lease could be continued for two years, and the purchaser was, in about two months, compelled to vacate the location, which was the principal consideration for the sale.</p>

Lindsay, Esq., judge pro tempore, entered May 28, 1910, upon findings in favor of the defendants, in consolidated actions to foreclose mechanics’ liens, after a trial on the merits.

<p>Appeal from an order of the superior court for Chehalis county, Irwin, J., entered December 29, 1909, granting plaintiff a new trial, after granting a nonsuit, in an action of ejectment.</p>

, entered December 7, 1909, upon findings in favor of the defendants, in an action of ejectment, after a trial before the court without a jury.

, entered January 8, 1910, upon findings in favor of the defendants, quieting their title, in an action brought for partition.

<p>Appeal from a judgment of the superior court for King county, Main, J., entered March 12, 1910, upon findings in favor of the plaintiff, in an action for separate maintenance.</p>

<p>Appeal from an order of the superior court for King county, Gilliam, J., entered March 23, 1910, granting a stay of- proceedings in an action for the foreclosure of a mortgage, upon tender and application of the defendants.</p>

, entered November 12, 1909, upon the verdict of a jury rendered in favor of the plaintiff in an action for personal injuries.

<p>Appeal from an order of the superior court for King county, Gay, J., entered May 19, 1910, quashing the service of summons upon motion of the defendant.</p>

<p>Appeal from an order of the superior court for King county, Robert H. Lindsay, Esq., judge pro tempore, entered April 7, 1910, granting a new trial, after a special verdict of a jury rendered in favor of the defendants, in an action for personal injuries sustained by a spectator through the negligence of a contractor in constructing a public building.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered June 6, 1910, in favor of the defendants.</p>

<p>Master and Servant — Promise to Repair — Pleading. Tbe objection. cannot be raised that a promise to repair was not made by defendant’s vice principal, where tbe answer fails to deny allegations ■of tbe complaint that tbe employees making tbe promise were defendant’s foreman and bead millwright; and tbe evidence showed that they did make tbe promises.</p> <p>Same — Promise—Contemplation of Continuance. A promise to remedy an improper construction of a sawdust chute in k shingle mill which required increased subjection to danger in releasing tbe sawdust, must have been made in contemplation of tbe operator’s continuance at work, where there was nothing said about abandoning tbe machine or permitting it to remain idle.</p> <p>Same — Contributory Negligence — Question foe Jury. The negligence of a shingle weaver in releasing sawdust in a chute near the saw with a short stick, after a promise by the master to repair the place, is for the jury, where that was the usual method.</p> <p>Appeal — Review—Waiver of Objection. The finding of a jury upon an issue, under proper instructions framed by the appellant, is-conclusive and precludes objection that the issue should have been determined by the court.</p> <p>Master and Servant — Contributory Negligence — Question for Jury. A shingle weaver is not guilty of contributory negligence, as a matter of law, in releasing sawdust in a chute without stopping the saw, where it was not usual to do so, and would have consumed much time, and it appears that he used a short stick for the purpose according to the usual method, and only did so for a reasonable time after objection and promise to repair.</p> <p>Appeal — Review—Verdict. The verdict of a jury upon conflicting evidence is conclusive on appeal.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for ' $2,750 is not excessive, where a shingle weaver, 24 years of age, lost two fingers and sustained an injury to his thumb, impairing his earning capacity to the extent of at least fifty cents a'day, and suffered much pain and inconvenience.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered June 2, 1910, upon stipulated facts, disallowing, in part, an offset in favor of a guardian for support of a ward.</p>

<p>Application for a writ of mandamus filed in the supreme court November 25, 1910, to compel the superior court for Thurston county, Mitchell, J., to fix the amount of a supersedeas bond pending an appeal from an order requiring a reduction of railroad rates.</p>

<p>Actions — Parties—Surety on Bonds — Jurisdiction—Judgments —Maritime Liens. No summary judgment can be entered against the sureties on a bond, given to release a vessel, in an action to foreclose a lien thereon, where the sureties do not enter an appearance, although the bond provided that “this bond and the personal liability” of the sureties “shall he and become substituted" for any security or claim that the plaintiffs have against the vessel; there being no statutory authority for entry of judgment against the sureties without giving them their day in court (overruling Id., 57 Wash. 550).</p> <p>Mount, Parker, Dunbar, and Crow, JJ., dissent.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered December 18, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered June 8, 1909, in favor of the defendant, in an action on contract.</p>

, entered February 8, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a logging-camp.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered June 25, 1910, granting a non-suit, in an action for personal injuries sustained by an employee engaged in loading logs.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered April 21, 1910, dismissing an action to restrain a levy to pay a tax on personal property, upon sustaining a demurrer to the complaint.</p>