Volume 67 — Washington Reports

<p>Limitation of Actions — Relief on Ground of Fraud — Corporations — Reduction of Capital Stock. An action by a trustee in bankruptcy to recover the sum paid to the bankrupt’s president on a sale of its capital stock, thereby diminishing the capital stock of the corporation, is one for. relief upon the ground of fraud, and is not barred until the lapse of three years after the cause of action accrues, as provided in Rem. & Bal. Code, §159, subd. 4; in view of Id. §§ 3697, and 3704-3706, making it unlawful to make a dividend or reduce the capital stock of a corporation except in the manner provided.</p> <p>Bankruptcy — Transfers — Action by Trustee — Corporations — . Capital Stock — Unlawful Reduction — Fraud — Subsequent Creditors. Where a corporation, before bankruptcy, unlawfully reduced its capital stock by purchasing the stock of its president, the trustee in bankruptcy may maintain an action to recover the money paid without alleging the existence of creditors at the time of the unlawful sale; since subsequent creditors are equally entitled to redress.</p> <p>Bankruptcy — Fraudulent Transactions — Action by Trustee— Statutes. The bankruptcy act does not require that creditors should first acquire a lien before the trustee can sue to set aside an unlawful transaction in fraud of the rights of creditors.</p>

<p>Indictment and Information — Duplicity-—Larceny. An information for grand larceny is not duplicitous, where it alleges that on a certain day and at a certain place the defendant, with intent to deprive the owner thereof, feloniously bought, received and concealed specified articles (stating the value) then and there knowing that the same had been stolen; as all of the property was received at the same time and place, even though it belonged to different persons.0</p>

, entered October 25, 1911, adjudging' a public use and necessity in condemnation proceedings, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Spokane county Huneke, J., entered January £1, 1911, upon findings in favor of the plaintiff, in an action on contract.</p> <p>Affirmed.</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered September 23, 1911, upon a trial and conviction of grand larceny.</p>

<p>Venue — Change—Bias oe Judge — Sufficiency of Showing. The fact that a judge on a former trial had decided issues in favor of one party and had been active in promoting a settlement between the parties, does not show bias or prejudice entitling a party to a change of venue on the second trial.</p> <p>Appeal — Review—Harmless Error. Error in denying a change of venue is not prejudicial, where on trial de novo, the judgment must be sustained in any event.</p> <p>Contracts — Consideration — Sufficiency — Misconception of Will. Where a will gave plaintiff, during widowhood, one-half of the income of an estate, amounting to several hundred dollars a month, and made specific legacies to certain minors to be paid at majority out of the whole estate, without interest, there is no consideration for a contract between plaintiff and the executrix whereby the plaintiff was to receive but one hundred dollars a month out of the income, the balance to accumulate as a fund out of which to pay the legacies, the principal of the estate being ample to pay them, and her legacy not being subordinate; since the contract is neither a benefit to the plaintiff, nor a detriment to the executrix.</p> <p>Same. The contract could not be considered an advantage to the plaintiff from the fact that, if she lived to her full expectation of life, and did not remarry, she would in the end receive a greater income from the estate by providing the accumulations with which to pay the legacies of the minors; it being a violation of public policy to enforce a condition of widowhood.</p> <p>Wills — Construction—Legacies—Income — Payment. Under a will making specific legacies to minors to be paid at the age of majority, and giving one-half of the income to plaintiff “during widowhood,” hers is "’iscific legacy, not subordinate to those of the minors, and entitles her to the full income until the minors are paid, and then on the reduced estate until she remarries; and it is immaterial that a direction is made that none of the real estate shall he sold until five years after the testator’s death, since that only postpones fulfillment in case of deficiency of personal assets..</p> <p>Equity — Relief Fkom Mistake — Misconstruction of Will — Mistake of Law or Fact. Equity will grant relief from a mistake as a mistake of fact, where parties erroneously construe a will as requiring legacies to he paid out of the income, and contract with reference to such erroneous construction; the test involving mutual mistake of fact being whether the contract' would have been entered into had there been no mistake.</p> <p>Estoppel — In Pais — Prejudice to Rights of Other Party. Acceptance of money due plaintiff under a will, pursuant to a contract made under a misconstruction of the will and mutual mistake of fact, will not estop her from recovering the balance due on a proper construction of the will, where no injury results to the remainder of the estate, and the contract in no way limited or interfered with the right and duty of the executrix to manage the estate.</p>

Application filed in the supreme court November 2, 1911, for a writ of prohibition to the superior court of King county, Dykeman, J., prohibiting further proceedings in an action to enjoin compliance with an order of the public service commission respecting telephone rates.

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered February 20, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a life insurance certificate.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Carey, J., entered December 27, 1910, upon findings in favor of the defendants, dismissing an action by an administrator to secure possession of corporate stock and personalty as property of the estate.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered February 25, 1911, upon findings in favor of the plaintiff, in an action on contract.</p>

<p>Extortion — Elements of Offense — Extortion ry Threats. The defendants are guilty of extortion hy threats, where they accused the prosecuting witness of adultery and demanded the payment of money as satisfaction, which he at first refused, although they later enforced their demands by violence.</p> <p>Same — Value of Property — Check Without Cash Value. Under Rem. & Bal. Code, § 2610, defining extortion of money or property by threats or accusation of crime, and §.2303, providing that the word “property” shall include all instruments or writings completed and ready to be delivered by which any right is or purports to be evidenced or created, one may be guilty of extorting a check, although it had no actual cash value from the fact that it would not have been cashed; as the claim which might have been made thereon imported value.</p>

<p>Municipal Corporations — Filing Claims — Necessity—Verification of Claim — Statutes—Construction. Laws 1909, p. 627, requiring claims against a city for personal injuries to he filed within thirty days, giving the residence of the claimant, specifying the items of damage, and verified, is mandatory and an action cannot he maintained unless the claim filed complies with all the requirements.</p> <p>Same — Notice of Claim — Sufficiency. In such a case, notice to the city officers by a claimant resident in the city cannot take the place of the claim required to be filed with the city clerk.</p>

<p>Municipal Corporations —■ Streets — Abandonment — Vacation. The condemnation and improvement of a new street, covering part of, and to take the place of, an old street, the use of which as a street has since been abandoned by the city, and which formerly gave the only access to plaintiff’s abutting property, does not constitute a vacation of the old street so as to vest title to the old street in the plaintiff; in view of Rem. & Bal. Code, § 7840 et seq., providing the manner in which street vacations may be obtained by persons owning an interest in abutting property, as the same provides an exclusive remedy, without which the council has no power to vacate streets.</p>

<p>Carriers — Injury to Passengers — Evidence—Relevancy—Damages — Appeal—Harmless Error. Upon an issue as to the amount of damages sustained by a passenger in a head-on railway collision, in which several passengers were killed, the company admitting negligence causing the accident, it is not prejudicial error to receive in evidence a photograph of the wrecked train showing the force and disastrous nature of the wreck (Morris and Chadwick, JJ., dissenting) .</p> <p>Evidence — Damages'—Mental Shock — Admissibility —• Res Gestae. Upon an issue as to the amount of damages sustained in a railway collision by a passenger who was thrown to the floor and suffered traumatic neurasthenia, evidence of shock from the sight of mangled and bleeding passengers while plaintiff was being conveyed to the city in a street car, medical experts testifying that such sight might contribute to plaintiff’s injuries, is admissible as a direct or proximate result of the accident and part of the res gestae, where it was only a repetition or continuation of what plaintiff had seen or experienced to a greater degree on the wrecked train (Morris and Chadwick, JJ., dissenting).</p> <p>New Trial — Misconduct of Counsel — Discretion—Appeal—Review. The refusal of a new trial for misconduct of counsel in argument to the jury is largely in the discretion of the trial court, and it is not an abuse of discretion to deny a new trial, where, in an action for injuries sustained in a railway wreck through the admitted negligence of the railway company, the only issue being the amount of the damages, counsel for plaintiff commented on the gross negligence of the defendant in an improper and inflammatory manner, and upon exceptions taken, the court ruled that the question of negligence had been eliminated and was not within the issues; especially where the trial court reduced the amount of the verdict rendered.</p> <p>Damages — Personal Injuries' — Excessive Verdict. A verdict for $7,000, for personal injuries resulting in traumatic neurasthenia, reduced by the trial judge to $5,000, is not excessive where the condition is serious and probably permanent.</p>

Motion to dismiss an appeal from a judgment of the superior court for San Juan county, Joiner, J., entered October 3, 1911, in favor of the plaintiffs, in an action to quiet title.

<p>Municipal Corporations — Indebtedness—Limit—Mandatory Expenses. Indebtedness incurred by a city for the salary of its officers, wages of employees for necessary services and for material and supplies in the conduct of its necessary affairs, is valid although in excess of the constitutional limit of indebtedness.</p> <p>Same — Indebtedness—Validations—Debts That Can Be Validated. Indebtedness incurred by a city in excess of the constitutional limit of five per cent may be validated by an election if, at the time of the election, the debt did not exceed such constitutional limit, and if it was incurred for a bridge or like property, comparatively new and in the possession and beneficial use of the city.</p>

, entered September 15, 1911, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a railway engineer in a collision.

, entered April 17, 1911, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a mortgage.

, entered April 27, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon an open account.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 20, 1911, upon findings in favor of the plaintiff.</p>

<p>Master and Servant — Fellow Servants — Temporary Staging— Details oe Work. A-carpenter’s helper who fell from temporary staging which he was assisting in building, cannot recover of the master for negligence of the carpenters in nailing a support with only one nail near its upper edge and in using cross-grain material, where the plan of construction was a good- one and sufficient material was furnished apd the carpenters were competent and made their own selection of materials and used their own judgment as to the number of nails required; since the accident was due to the neglect of fellow servants in mere details of the work (Fullerton, J., dissenting).</p>

, entered March 24, 1911, upon the verdict of a jury rendered in favor of the plaintiff, after denying a new trial, in an action for personal injuries sustained by a track laborer struck by a street car.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 17, 1911, in favor of the defendants upon the pleadings, dismissing an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered April 27, 1911, in favor of the defendants, upon sustaining a demurrer to a complaint for libel.</p>

, entered September 11, 1911, upon sustaining a demurrer to the complaint, dismissing an action to restrain the vacation of streets.

, entered January 14, 1911, in favor of the defendants, upon quashing a writ of mandamus, after a trial to the court, dismissing an action for equitable relief.

, entered March 3, 1911, upon findings in favor of the plaintiffs, after a trial to the court, in an action for an injunction and damages to leased premises.

, entered May 19, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death of a city employee.

, entered June 16, 1911, upon the verdict of a jury rendered in favor of the plaintiff, for damages for an assault on a passenger on a boat.

<p>Appeal from a judgment of- the superior court for King county, Tallman, J., entered June 10, 1911, upon findings in favor of the defendant, after a trial to the court, in an action on contract.</p>

<p>Master and Servant — -Assumption of Risks — Obvious Dangers— Evidence — Sufficiency. The risk of being struck by the butt of a falling tree is obvious and necessarily incident to the work of slashing trees and brush and is assumed by a man, thirty-four years of' age, of ordinary understanding and experience, although he had had no previous experience in that work and was not warned of the danger.</p>

<p>Appeal — Right to Allege Error — Coparty Not Appealing. A plaintiff, dismissed from a case with prejudice, cannot have error thereon reviewed on an appeal by defendants, where the record fails to disclose that he took any appeal.</p> <p>Logs and Logging — Liens—On Lumber — Time for Filing — Statutes — Construction. Under Rem. & Bal. Code, § 1163, giving a logger’s lien upon lumber while the same remains at the mill where it is manufactured or while in its possession and control, no lien can be claimed after the mill company had delivered it to a railway company, about a mile from the mill, the railway having taken possession and control of it.</p> <p>Logs and Logging — Liens—Eloignment—Prior to Filing Lien. Under Rem. & Bal. Code, § 1181, as to the eloignment of logs and timber “upon which there is a lien,” there can be no eloignment prior to the filing of the lien.</p> <p>Same — Parties Entitled — Cook or Boarding-House Keeper. Under the statute providing that a cook in a logging camp shall be regarded as a person who assists in obtaining the timber, one who runs a boarding house, furnishing all supplies for meals at so much per week to be paid for out of wages of the men, is not entitled to a lien as cook.</p> <p>Partnership — Evidence—Admissions of Partnership. Upon an issue as to the establishment of a partnership, the admission of one partner is not evidence as against the other.</p> <p>Logs and Logging — Liens—Eloignment—Remedies oe Owner— Subrogation. In an action to foreclose logger’s liens, where the liability of the owner of the timber depends upon his own wrongful act in eloigning the same, he cannot claim the right to subrogation against the contractor who failed to pay the labor bills of the lien claimants; since subrogation depends upon equity.</p>

<p>Eminent Domain — Damages —■ Evidence — Admissibility. Upon condemnation of twenty-two cubic feet of water to be taken from a creek thirteen miles above defendant’s mill site, evidence is admissible to show that it would not result in a loss of that much water at the point of defendant’s property; inasmuch as the ordinance to condemn the same did not show an intent to condemn water all of which belonged to defendant.</p> <p>Judgment — Bar — -Res Judicata — Matters Determined. An injunction against the diversion of water from a creek until riparian rights are condemned and awarding damages for past diversions, is not an adjudication that the taking of twenty-two cubic feet of water thirteen miles above appellant’s property would amount to a loss of that much water at the point of appellant’s property.</p> <p>Appeal — -Review-—Verdict. An award in condemnation will not be reversed on appeal as inadequate, where it is well within the evidence of disinterested witnesses, and the trial court refused to interfere after hearing and seeing the witnesses.</p>

<p>Homicide — J ustutication — Evidence—Admissibility — Witnesses —Contradiction. Upon a prosecution for homicide occurring in an altercation over a fence placed and defended by the accused in a private way, which was the only road for vehicles to the home of the deceased, evidence that a team could have been driven around the fence, by making a short detour over untraveled ground and an old logging road, is not admissible for the purpose of contradicting a witness for the state who testified that the private way was the only road for vehicles to the home of the deceased.</p> <p>Same — State of Mind of Accused — Evidence — Admissibility. Neither is such evidence admissible as bearing on the state of mind of the accused when she shot and killed the deceased for tearing down the fence which she had helped her mother place in the road for the purpose of closing the road to the family of the deceased for its entire way.</p> <p>Same — Justification—Evidence—Admissibility. Neither is such evidence admissible to relieve the accused from being put in a bad light before the jury, as attempting to block the deceased from access to his home, where it was admitted that the purpose of the fence was to stop all trespassing by use of the only traveled road, especially where the court instructed the jury that the deceased was an unlawful trespasser, and that his destruction of the fence was an unlawful act which the accused had a right to resist to any degree short of taking human life.</p> <p>Same — State of Mind of Accused — Evidence—Admissibility. In a prosecution for a homicide occurring in a quarrel between the deceased and the mother of the accused, which quarrel the accused took up three or four hours before the homicide, evidence of what occurred between the contending parties some time prior thereto, and of an offer by the mother of another way, is inadmissible for the purpose of showing the state of mind of the accused at the time of the homicide, where it is not shown that she was informed of the prior occurrences or of such offer.</p> <p>Same — Evidence—Declarations of Accused — Self-Serving Declarations. Upon a prosecution for homicide, statements, not part of the res gestae, made by the accused to her husband expressing fear of the deceased and members of his family, are inadmissible as declarations of the accused made in her own favor.</p> <p>Homicide — Degrees—Manslaughter — Instructions. Under the statute providing that homicides committed in certain ways shall constitute murder in the first degree, and if committed in certain other ways, murder in the second degree, and all other homicides, not being excusable or justifiable, shall be manslaughter, it is not error in defining manslaughter to use the words “voluntarily” and “involuntarily” as excluded in the definitions of first and second degree murder; and such words are not confusing as capable of a varied meaning without any further definition.</p> <p>Homicide — Manslaughter—Presumptions—-Burden of Proof — Instructions. An instruction that, a homicide being proven and murder in the second degree presumed, the burden upon the defendant to reduce it to manslaughter is sustained if, from all the evidence or want of evidence, the jury entertain a reasonable doubt as to defendant’s guilt, is not objectionable as telling the jury that before the burden of reducing a homicide to manslaughter is sustained the jury must entertain a reasonable doubt of defendant’s guilt.</p> <p>Homicide — Instructions — Presumptions of Innocence. In a prosecution for homicide, an instruction that the presumption of innocence continues until it has been overcome by the evidence of the prosecution, beyond a reasonable doubt as to each and every material fact, is not open to the .objection that the presumption of innocence could be overcome if the jury believed the evidence of the prosecution, without reference to the evidence of the defense, where in other instructions the jury were told that the whole of the testimony bearing upon any particular fact must be considered in arriving at a conclusion as to such fact.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered May 22, 1911, upon findings in favor of the plaintiff, upon a trial to the court, in an action in replevin, and for damages.</p>

<p>Limitation of Actions — Trusts—Nature of Relation — Trust or Agency — Recovery of Damages. An attorney who contracted! with plaintiff and one C. to perfect the title to certain tide lands for a one-fourth interest therein, the title to he taken in the name of C. as trustee, does not become a co-trustee with C. and C’s successors, where the lands were sold and defendants failed to account to plaintiff for her part of the proceeds; hence an action against the attorney and C’s successors, to recover plaintiff’s share of the proceeds, is not an action to declare a trust, as far as the attorney is concerned, but as to him, is an action at law for damages, to which the statute of limitations applies, where it is not alleged that the attorney received the title or any part of the proceeds which could be impressed with a trust, his codefendant being trustee for both parties.</p> <p>Pleading — Complaint — Prayer—Actions—Legal or Equitable. In an action at law to recover money, the addition of a prayer for "such other relief as to equity may belong” does not change the nature of the action.</p>

<p>Loss and Logging — Contracts—Performance or Breach — Partial Performance- — Damages. Upon breach of a logging contract by defendant, plaintiffs can recover at the contract price for logs cut and delivered by them up to the time of defendant’s breach.</p> <p>Aepeal — Review — Harmless Error — Counterclaim — Instructions. Upon breach of a logging contract by defendant, an instruction that the defendant could counterclaim for damages sustained by reason of plaintiffs’ failure to fully perform the. contract is error favorable to the defendant of which he cannot complain.</p> <p>Trial — Instructions—Preponderance of Evidence. An instruction that the preponderance of the testimony is the excess over the amount necessary to balance the scales; entitling the party furnishing it to a verdict, is proper.</p>

, entered January 5, 1911, upon findings in favor of the plaintiff, after a trial before the court, in an action for personal injuries sustained by a laborer in a ditch.

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered October 28, 1911, upon a trial and conviction of abortion.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 13, 1911, 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>

, entered April 17, 1911, in favor of the plaintiff, after a trial before the court without a jury, in1 an action to foreclose a mechanics’ lien.

<p>Chattel Mortgages — Construction—Rights or Mortgagee — Possession — Replevin. A provision in a chattel mortgage that in case of default the mortgagee may take immediate possession and proceed to sell the same in the manner provided by law, must be construed to have reference to the taking of possession by the method provided by statute for the foreclosure thereof, as an exclusive remedy; and consequently replevin cannot be maintained.</p>

<p>Municipal Corporations — Claims—Description oe Injury. A claim against a city “accurately describes” the injury, within the requirements of a city charter, so as to admit proof of a sprained ankle causing permanent injuries, where it alleges that claimant’s leg was fractured and bruised necessitating a surgical operation and that claimant will be disabled many months.</p> <p>Pleadings — Amendments to Conform to Proof — Surprise—Continuance. It is not an abuse of discretion to allow an amendment to conform to proof as to the permanent nature of personal injuries, where the court offered to appoint physicians for a physical examination, with a view to granting a continuance if the examination demonstrated a surprise preventing a fair trial, and defendant failed to avail itself of the offer.</p> <p>Municipal Corporations' — Sidewalks—Contributory Negligence —Question for Jury. Plaintiff, injured by a fall by stepping on a loose plank in a defective sidewalk, is not guilty of contributory negligence, as a matter of law, from the fact that many of the boards were loose and rattled when stepped on, he never having been over the walk before; plaintiff having a right to assume the safety of the walk.</p>

<p>Highways — Establishment—Powers of County and Townships —Jurisdiction. Rem. & Bal. Code, § 9368, enlarging tbe powers of township officers over highways in the township and providing that nothing in the act .shall affect the rights of counties over roads in which the county generally is interested, etc., does not affect the jurisdiction of the county over a county road wholly within the township sought to be established by the county commissioners, under Id., §§ 5623 to 5656; the township not being forced to aid in its construction.</p> <p>Highways — Establishment—Appeal—Review on Appeal. Landowners cannot object to the confirmation of the establishment of a county road because of insufficiency of the county’s tender of compensation for land to be taken, which, under Rem. & Bal. Code, §§ 5634, 5635, is not final, the statute providing that, if such tender is not accepted by the landowners, condemnation proceedings must be instituted for the purpose of fixing the damages.</p>

<p>Municipal Corporations — Charters — Ordinances — Implied Repeal — Officers. A new city charter, purporting to be the entire organic law of the city, which provides that every ordinance in force at the time of its adoption not inconsistent with the charter shall continue in force until amended or repealed, and that employees within the scope thereof in office at the time of its adoption shall retain their positions, does not continue the office of city bacteriologist, provided for pursuant to provisions of the old charter establishing a board of health, where the new charter makes no provision for such office or for any board of health, but leaves that subject to be regulated by the general laws in force applicable to all cities whose charters make no special provisions for boards of .health; since the new charter is in no sense an amendment of the old, which is effectually repealed, even though there is no express repealing clause.</p> <p>Municipal Corporations — Officers—Right to Office — Estoppel to Question Right. Upon a proceeding against a city for reinstatement to an office that had been abolished by city charter, it is immaterial that another person had been employed to fill the same position (Dunbar, C. J., and Gose, J., dissenting).</p>

, entered December ÍJ8, 1909, upon findings in favor of the plaintiff, upon confirming assessments for street improvements.

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered May 8, 1911, upon findings in favor of the plaintiff, in an action for specific performance.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered May 4, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Boundabies — Plats—Constbuction—Location oe Line. Where the northwest corner of a plat is 8% feet south of the government subdivision, and the northeast corner is 21.44 feet south of the same line, the true north line of the townsite is the north line of the north tier of blocks as actually marked on the plat and not the government subdivision line.</p> <p>Boundaries — Agreed Location — Evidence—Sueeicienct. It cannot be claimed that there was an agreed location of a boundary along a blazed line, where one of the parties refused to build a fence thereon until it was surveyed, and the other did not know exactly where the line was and agreed that the line was subject to survey.</p>

<p>Frauds, Statute of — Answering foe Debt of Another — Interest as Stockholder. A promise by a promoter and principal stockholder in a corporation, that if a creditor would forego its demand for immediate payment for goods sold to the corporation and would continue to sell and deliver goods to it, he would pay the same and become responsible therefor and would “indemnify and hold harmless” the seller for any loss on account of the extension of credit or sale of goods to it, is a promise to answer for the debt or default of another, within the statute of frauds, Rem. & Bal. Code, § 5289, and void when not in writing; and it is immaterial that he is directly interested as a stockholder.</p> <p>Same — Construction—Question foe Court. In such a case, the facts being admitted, the construction is one of law for the court.</p>

, entered November 18, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for breach of contract.

Griffin, Esq., judge pro tempore, entered September 12, 1911, upon findings in favor of the plaintiff, in an action to quiet title.

, entered October £0, 1911, in favor of the plaintiff, upon sustaining a demurrer to the answer, in an action to foreclose a tax lien.

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered September 29, 1911, upon an agreed statement of facts, dismissing an action to obtain title to corporate stock.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, Yakey, J., entered April 26, 1911, upon findings in favor of the plaintiff, in an action to quiet title.</p>

, entered April 1, 1911, upon the verdict of a jury rendered in favor of the defendant, in an action on a policy of indemnity insurance.

<p>Appeal from an order of the superior court for King county, Frater, J., entered July 10, 1911, requiring the payment of alimony awarded in a decree of divorce.</p>

, entered April 25, 1911, in favor of the plaintiffs, upon the verdict of a jury by direction of the court, in an action on a promissory note.

<p>Appeal from a judgment of the superior court for King county, Chapman, J., entered July 5, 1911, upon findings in favor of the plaintiff, in an action for money loaned.</p>

<p>Counties — Claims—Presentation—On Behalf of Minors. A presentation of a claim by a widow for berself and minor children for the death of her husband through the fall of a county bridge, is a sufficient presentation on behalf of the children, under Rem. & Bal. Code, § 3909, providing in general terms that an action may be brought against the county after a claim has been presented and disallowed, without specifying who shall present the claim; especially in view of Rem. & Bal. Code, § 5932, giving such parent control of the children and their estate.</p> <p>Counties — Claims — Verification — Form. Under Rem. & Bal. Code, § 8354, requiring claims against a county to be sworn to before an officer having a seal, and that the bureau of inspection and supervision of public offices shall prescribe the form of affidavits, a claim verified before a notary public using his seal cannot be objected to as not in the form prescribed by the bureau, where it is not made to appear that the bureau had prescribed any form when the affidavit was made.</p>

<p>Contempt — Civil Contempt — Damages—Right to Jury Trial. The right to trial by jury does not extend to proceedings for contempt for the wilful violation of a judgment, although damages for civil contempt are claimed and may be awarded on summary trial by the court, under Rem. & Bal. Code, §§ 1053, 1056.</p> <p>Contempt — Civil Contempt — Affidavit—Sufficiency. An affidavit for civil contempt for the violation of a judgment is sufficient where it sets out a wilful violation of the order and the damages caused thereby.</p> <p>Contempt — Civil Contempt — Measure of Damages. The measure of damages for civil contempt in operating a boom in violation of a judgment, whereby certain logs were prevented from entering relator’s boom, is the price relator would have earned in booming the logs, less the reasonable cost of boomage; the profit being neither remote nor speculative.</p> <p>Fullerton, J., dissents.</p>

<p>Application for a writ of certiorari to review an order of the superior court for King county, Myers, J., entered December 81, 1911, granting a change of venue to the county of the residence of a garnishee.</p>

<p>Appeal from a judgment of the superior court for Franklin coimty, Carey, J., entered December 30, 1910, upon findings in favor of the defendant, in an action to quiet title.</p>

<p>Waters — Irrigation—Water Contract — Construction — Agreement Running With Land. An agreement for water for irrigation, calling for a certain number of miners’ inches for specific tracts of land, which was binding on each parcel of lahd separate and apart from the others, the conditions to be binding upon heirs and assigns, runs with the land, and places a purchaser of a tract in the situation of the original contractee.</p> <p>Corporations — Representation — Contracts — Stockholders— Ratification by Corporation. Where, in consideration of 98 per cent of the stock of an irrigation company, the purchaser entered into an agreement to furnish water for specified tracts of land, and agreed to execute a water deed therefor as soon as he was made president of the corporation, the company ratifies the contract by furnishing water and receiving payments therefor under the contract.</p> <p>Waters — Irrigation — Contracts—“Miners Inches” — Parol Evidence — Certainty—Specific Performance. A contract for a certain number of “miners’ inches” of water to be taken from an irrigation ditch is ambiguous, and may be shown by parol evidence to mean in that locality a quantity of water which would flow through an orifice one-inch square under at least a four-inch pressure; and when so explained, is sufficiently definite to admit of specific performance.</p> <p>Waters — Irrigation—Water Contracts — Breach — Measure of Damages. Upon specific performance of a contract to furnish plaintiff five miners’ inches of water, to be taken from a ditch at a point most convenient for the irrigation of plaintiff’s land, the measure of plaintiff’s damages should be interest on his investment at the legal rate from the date of the refusal to furnish water, less the maintenance fee, rather than the remote and speculative profits that he might have made from the cultivation of the land, where it appears that his land was some distance from the ditch, the lands were never cultivated and the plaintiff had not constructed his diverting ditches or acquired the right to do so.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Carey, J., entered February 9, 1911, upon a trial and conviction of giving liquor to an Indian.</p>

, entered July 3, 1911, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained by an employee.

, entered June 5, 1911, upon the pleadings and an agreed statement of facts, dismissing an action to try title to office.

<p>Appeal — -Review—Vebdict. The verdict of a jury upon conflicting evidence, submitted under proper instructions, will not be disturbed on appeal, where there is substantial evidence to support it.</p>

, entered May 6, 1911, upon the verdict of a jury rendered in favor of the defendants by direction of the court, dismissing an action on contract.

<p>Application for a writ of certiorari to review an, order of the superior court for King county, Myers, J., entered December 2, 1911, staying proceedings in an action until additional parties were brought in.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered July 3, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malicious prosecution.</p>

, entered February 28, 1910, upon sustaining a challenge to the sufficiency of plaintiff’s evidence, dismissing an action for damages for personal injuries.

<p>Appeal — Review—Harmless Error — Trial—Argument oe Counsel. The arbitrary interruption by the court of proper argument of counsel, as going beyond the instructions, will be held harmless error, unless it appears from the whole record that otherwise a different verdict would probably have been returned.</p>

<p>Witnesses — Summons—Order to Appear — Party or Witness. In an action against a corporation, an order requiring a trustee to appear before the court for examination concerning the possession of the books and assets of the company, which the receiver was endeavoring to obtain, is a summons as a witness and not as a party, where the trustee was not a party to the suit.</p> <p>Witnesses — Attendance—Power to Require — Distance From Residence — Contempt. Since, under Rem. & Bal. Code, § 1215, a witness cannot be required to appear out of the county in which he resides and more than twenty miles from his residence, the court has no power to punish him for contempt in refusing to obey an order requiring his attendance.</p> <p>Appeal — Decisions Reviewable — Final Obdebs. An order requiring a witness to show cause why he should not be punished for contempt in failing to appear for examination, is interlocutory and not appealable as a final order.'</p> <p>Peohibition — When Lies — Contempt Pboceedings — Adequacy op Remedy by Appeal — Rights op Witness. The remedy by appeal is not adequate and prohibition lies, where the court made an order without authority of law requiring a witness to show 'cause why he should not be punished for contempt in failing to appear for examination, that he made answer showing the illegality of the summons, that the court was about to erroneously punish him for contempt, and before he could appeal from the judgment of contempt he must be fined and possibly illegally taken from one county to another and imprisoned.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered August 8, 1911, dismissing a prosecution for contributing to the delinquency of a delinquent child, upon sustaining a demurrer to the information.</p>

<p>Corporations — License Pees — Failure to Pay — Effect—Reinstatement — Statutes—Construction. Rem. & Bal. Code, §§ 3715a and 3715b, having provided that a corporation whose name has been stricken from the records for failure to pay its annual license fee might apply, at any time within six months, for reinstatement upon paying all fees and a penalty of $25, the amendment thereof by Laws 1911, p. 135, by changing the time within which the application could be made from six months to “any time after its name has been stricken,” and increasing the penalty to $100, was intended to render inoperative Rem. & Bal. Code, § 3715d, providing that a corporation failing to make application for reinstatement within six months shall be thereby dissolved; since the acts are purely revenue measures, and the intent of the amendment was to permit reinstatement upon the conditions prescribed at any time, thereby increasing the revenues of the state.</p> <p>Same — Corporate Franchises — Forfeiture. Such act does not violate Const., art. 12, § 3, prohibiting the legislature from remitting the forfeiture of any corporate franchise or charter, the striking of delinquent names for failure to pay license fees not being the forfeiture of a franchise or charter within the meaning of the constitution.</p>

<p>Cross-appeals from a judgment of the superior court for Walla Walla county, Brents, J., entered February 7, 1911, upon findings partly in favor of each party, in an action for conversion, after a trial on the merits to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered June 17, 1911, upon a trial and conviction of second degree assault.</p>

<p>Appeal from a judgment of the superior court for Douglas county, Steiner, J., entered June 22, 1911, upon the verdict of a jury rendered in favor of the plaintiff.</p>

, entered March 14, 1911, upon findings in favor of the defendants, in an action on contract, after a trial on the merits to the court.

, entered October 11, 1910, upon findings favorable to part of the defendants, in an action to foreclose mechanics’ liens, after a trial to the court.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered May 8, 1911, upon findings in favor of the defendants, in an action upon a promissory note.</p>

, entered May 2, 1911, upon findings favorable to part of the defendants, in an action to foreclose mechanics’ liens, after a trial to the court.

<p>Intoxicating Liquors — Local Option Law — Application — Wholesale Dealers — Statutes—Construction. The local option law of 1909 (Rem. & Bal. Code, § 6292 et seqA prohibits sales of intoxicating liquors by wholesalers in dry units, notwithstanding the proviso that wholesalers may deliver unbroken packages at residences in dry units; in view of the restrictions against all sales in any quantity whatsoever in dry units or the taking or soliciting of orders therein, and the often repeated use of the term “sale” whenever and wherever it was intended to permit a sale in a dry ■ unit, which do not include sales hy wholesalers, and also the safeguarding of sales by druggists in dry territory, and the general purpose and spirit of the act, all of which require that the proviso be strictly construed to conform to the language of the general provisions; consequently “sales” by wholesalers, whether located within or without the dry unit, must be made outside of the district.</p>

<p>Judgment — Res Judicata — Sales—Action eor Price — Defenses— Condition or Article. In an action for the price of butter sold and delivered, which defendant rejected because in bad condition and not according to sample, a judgment in a proceeding in rem by the state inspector condemning the butter as “renovated” butter, the sale of which was prohibited, is admissible in evidence to prove the condition of the butter at the time it was seized.</p> <p>JudgmenoA-Res Judicata — Parties and Matters Concluded. In an action for the price of butter sold and delivered, a judgment in a proceeding in rem condemning the butter as “renovated” butter, is not, as a matter of law, final and conclusive upon the plaintiff as to the status and condition of the butter at the time it was sold to the' defendant three and one-half months before its seizure, where the facts were all in dispute.</p>

, entered June 9, 1911, upon the verdict of a jury, rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by a street car.

, entered May 2, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort, after a trial on the merits.

<p>Cross-appeals from a judgment of the superior court for Spokane county, Carey, J., entered March 15, 1911, upon findings favorable to the plaintiff, but awarding costs to defendant, in consolidated actions for a divorce and to recover mining stock.</p>

<p>Landlord and Tenant — Lease—Purpose. In the absence of any restrictions in a lease, the premises may be used for any lawful purpose.</p> <p>Evidence — Parol—Varying Lease. Where a lease, complete in itself, requires the tenant to make any desired alterations, it cannot be varied by evidence of an oral contemporaneous agreement that the landlord should make certain alterations and improvements.</p> <p>Landlord and Tenant — Lease—Breach — Repairs — Rights oe Tenant — Recovery oe Rent Paid — Use oe Premises. A tenant who leased part of a building intending to use the same as a theater, cannot recover damages for breach of the lease in that the landlord, “did not disclose” that the building could not, under the ordinances of the city, be used for that purpose until an exit had been constructed, where the lease provided that the tenant should, at his own expense, make all changes and improvements in the building, and it was not alleged that the landlord refused to permit him to construct the exit, and did not mislead him as to the ordinances; since one contracting in a city with reference to matters governed by police regulations is charged with notice of the ordinances.</p> <p>Landlord and Tenant — Lease—Subrendee—Accrued Rent. On the termination of the relation of landlord and tenant, the right to accrued rent is fixed by the terms of the lease, whether the termination was by reentry or surrender, and whether the rent was payable in advance for a period beyond the time of the surrender, or already paid up in advance.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered September 80, 1911, upon a trial and conviction of rape.</p>

, entered September 14, 1911, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for injuries sustained in a collision with an automobile.

<p>Judgment — Default Judgments — Vacation — Limitations — Recovery of Real Property — Statutes—Construction. In view of Rem. & Bal. Code, § 705, providing that any person having a valid interest in real property and a right to the possession thereof may recover the same by action in the proper county, and may have judgment in such action quieting or removing a cloud from the title, and § 809, authorizing an action to quiet title without including specific relief for the recovery of possession, the provision of § 806, authorizing the vacation of a default judgment in actions to recover possession of real property, where service was by publication, at any time within two years after entry of judgment, has no application to a judgment in an action to quiet title to vacant and unoccupied land the title to which was alleged to be in the plaintiffs, the complaint not seeking recovery of possession, but only the adjudication of adverse claims made by the defendants; since actions ■to quiet title and to recover possession are not essentially the same under our statutes.</p> <p>Same — Vacation for Fraud — Limitations. A petition to vacate a judgment for fraud, under Rem. & Bal. Code, § 464, where there was no personal service on the defendant, under Id., § 235, is limited to one year after entry of the judgment, and cannot be entertained after that time, although an independent suit in equity to vacate for fraud might be maintained after the expiration of two years.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered July 19, 1911, upon a trial and conviction of accepting a bribe.</p>

<p>Municipal Corporations — Eight-Hour Day — Labor by Teamsters. Rem. & Bal. Code, § 6575, providing that all work by contract or day labor done for the state or any of its political subdivisions, shall be performed in work days of not more than eight hours a day, is violated by requiring city teamsters to harness and hitch their teams, collect their tools, and be at the place of work before the legal day begins, so as to put in eight hours “on the job,” and thereafter return to the barn and unhitch and unharness their teams, putting in about an hour in excess of the lawful eight-hour day.</p> <p>Injunction — Adequate Remedy at Law — Violation op Eight-Hour Day Law. There is no adequate remedy at law and injunction lies to prevent the city from violating the eight-hour day law, where it employed many teamsters and required them to work in excess of eight hours a day or “quit the job,” the employment being mutually satisfactory and agreeable; and the city is not prejudiced by the form of the decree, even if there is a remedy by mandamus.</p>

<p>Appeal — Review—Findings. Findings upon conflicting evidence will not be disturbed on appeal, when sustained by a preponderance of the evidence.</p> <p>Costs — Witness Fees. Under Rem. & Bal. Code, § 482, witness fees may be taxed for witnesses who were not subpoenaed or called, where they were in attendance at the trial, but not used because the course- of the trial made their use unnecessary.</p>

<p>Eminent Domain — Appeal—Right to Appeal — Waives — Payment oe Award — Cessation oe Controversy. A city cannot, after paying an award in condemnation proceedings into court, appeal therefrom, as the controversy has ceased, in view of Rem. & Bal. Code, § 7783, providing that an award of damages in condemnation proceedings shall be final unless appealed from, making payment Of the amount into court an indispensable condition of possession of the property, and providing that after payment, the city shall be liable to the owners for any further compensation which may be finally awarded to the parties appealing, and that acceptance of the sum awarded shall waive the right to appeal, whereupon final judgment may be rendered as in other cases, and Id., § 7784, providing that, upon payment of the award, title shall vest in the city, and Const., art. 1, § 16, prohibiting the taking of private property until compensation therefor in money shall be first ascertained and paid into court.</p>

, entered June 7, 1911, granting a new trial, after the verdict of a jury rendered in favor of the plaintiff in an action for wrongful death.

<p>Appeal from a judgment of the superior court for Clarke county, McMaster, J., entered February 21, 1911, upon findings in favor of the plaintiff, in an action to foreclose liens upon logs.</p>

<p>Certiorari to review a judgment of the superior court for Yakima county, Preble, J., entered November 9, 1911, dismissing a condemnation proceeding, upon sustaining a demurrer to the petition.</p>

Lindsay, Esq., judge pro tempore, entered July 11, 1911, on findings in favor of the plaintiffs, in an action to foreclose mechanics’ liens.

<p>Appeal from an order of the superior court for Whatcom county, Hardin, J., entered June 19, 1911, after decree foreclosing a mortgage, directing a sale for installments due since final judgment, upon application of the plaintiif.</p>

, entered September 17, 1910, upon findings in favor of the plaintiff, in an action on account, upon approving the report of a referee to take an account.

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered July 6, 1911, upon findings in favor of the plaintiff, in an action for damages for flooding occasioned by the breaking of an irrigation ditch.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered June 20, 1911, upon findings in favor of the- plaintiff, in an action to recover for lumber sold for use in a public improvement.</p>

, entered January SI, 1911, upon a trial and conviction of selling liquor within a dry unit in violation of the local option law.

<p>Appeal — Decisions Revlewable — Amount in Controversy — Several Claims — Money Judgment — Action on Bond. In an action by the surety on a bond to indemnify materialmen and laborers upon public work, brought to establish the amount of its liability on various claims filed, in which judgment was given to the claimants upon their respective cross-complaints, no appeal lies in the case of any cross-complainant in whose favor judgment was given for less than the sum of $200, that being the jurisdictional amount on appeal to the supreme court in case of judgment for the recovery of money only.</p> <p>Municipal Corporations — Public Works — Bonds to Secure Laborer and Materialmen — Subjects Included — Statutes—Construction. Under Rem. & Bal. Code, § 1159, requiring contractors on public work to furnish a bond to pay all laborers, mechanics, subcontractors and materialmen and all persons who shall supply such persons with provisions or supplies for carrying on such work, all just debts, dues and demands incurred in the performance of the work, the liability on the bond is not limited to such provisions and supplies as enter into and become a part of the finished product, as in the case of liens under the lien laws of the state, notwithstanding that there is an analogy between the two laws; and the legislature has power to so provide.</p> <p>Statutes — Title and Subjects. The title, an act requiring bonds from contractors on public work conditioned to pay laborers, mechanics, materialmen, and others, is sufficiently broad to include provisions to indemnify parties furnishing “supplies and provisions” for carrying on the work, although such supplies or provisions did not enter into or become a part of the finished improvements; the doctrine of sui generis not applying in such case to the words “and others.”</p> <p>Same. A bond under Rem. & Bal. Code, § 1159, to indemnify laborers, mechanics, subcontractors and materialmen, and all persons supplying such persons with provisions or supplies for carrying on the work, covers fuel for a steam shovel used in excavating; also the services performed by teams with drivers furnished to the contractor, together with hay and grain to feed the horses.</p>

, entered June 24, 1911, upon a trial and conviction of false registration.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered June 17, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in the construction of a concrete bridge.</p>

, entered September 22, 1911, upon findings in favor of the defendant, in an action to set aside an assessment for a local improvement.

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered April 29, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for trespass.</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered September 9, 1911, upon a trial and conviction of employing a woman in violation of the eight hour day law.</p>

<p>Appeal — Review—Harmless Error. Error in excluding evidence is cured where the fact was established by other evidence.</p> <p>Witnesses — Cross-Examination—Criminal Law. Where the accused offered himself as a witness and testified that he had been looking for work and could not find it; it is not error to allow cross-examination showing that he had not had a steady job for some time before the commission of the crime.</p> <p>Robbery — Identity oe Accused — Possession oe Stolen Property —Evidence—Sufficiency. A conviction of robbery is sustained where part of the property taken was found in defendant’s possession, and he was taken shortly after the robbery in the vicinity where the crime was committed, although there was no direct evidence of identity. . ,</p>

<p>Parties — Bringing in New Parties — Pleadings—Amendments. In an action for trespass hy the cutting of timber, it is not error to allow a trial amendment to the complaint, bringing in as- plaintiffs the plaintiffs father and mother, after the testimony showed that the legal title to the land was in the son and' that the parents had some legal or equitable interest therein, the issues not being changed and the defendants not claiming any surprise.</p>

, entered July 12, 1911, upon findings in favor of the plaintiff, in an action upon a promissory note, after a trial to the court.

<p>Criminal Law — Trial—Reopening Case. It is within the discretion of the trial court in a criminal case to reopen the case to allow the state to introduce further evidence.</p> <p>Incest — Accomplice—Evidence—Sufficiency. A conviction for incest may be had upon the uncorroborated evidence of an accomplice.</p> <p>Incest — Accomplice. The female is not an accomplice in incest, where she at no time consented to the criminal relations.</p> <p>Incest — Consent. One may be guilty of incest although, the act was accomplished without consent.</p> <p>'Criminal Law — Appeal—Review—Objections. Error cannot be predicated upon failure to require the state to elect between the acts charged, where no request for an election was made below.</p>

<p>Appeal from a judgment of the superior court for King county, Carey, J., entered October 28, 1910, upon findings in favor of the plaintiff against one of the defendants, in an action for an accounting.</p>

, entered May 4, 1911, upon findings in favor of the plaintiff, in an action upon a promissory note, after a trial to the court.

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered April 22, 1911, upon findings in favor of the defendant, dismissing on the merits an action to set aside a conveyance as fraudulent as to creditors.</p>

, entered July 22, 1911, upon findings in favor of the plaintiff, in an action on contract and to foreclose a materialman’s lien against a railroad, after dismissal as to the railroad company and a trial to the court.

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered October 81, 1911, upon findings in favor of the defendant, in an action for a divorce, awarding the property to the defendant, and the temporary custody of the children to the plaintiff, with alimony.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 24, 1911, upon sustaining a demurrer to the complaint, dismissing an action for an injunction.</p>

<p>Appeal from judgments of the superior court for Walla Walla county, Brents, J., entered July 26, 1911, dismissing actions of ejectment, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered June 20, 1911, upon a trial and conviction of false registration.</p>