Volume 70 — Washington Reports

<p>Sales — Representations—Warranty—Opinions. Upon the sale of an automobile that had been run 1,500 miles as a demonstrator, on account of which the price was over twenty-one per cent less than the price of a new car, representations that it was “in first class condition, as good as any new car,” and that it would “go eleven miles to a gallon of gasoline on an average,” are mere “seller’s praise” and do not constitute a warranty.</p>

<p>Municipal Corporations — Streets—Use—Colliding With Automobile — Contributory Negligence — Question for Jury. Whether a pedestrian struck by an automobile while walking diagonally across a street between crossings was guilty of contributory negligence, is for the jury, where there was doubt as to whether she was paying attention to trafile.</p>

, entered November 23, 1911, in favor of the defendants, decreeing an accounting and appointing a receiver, in an action to foreclose a mortgage.

<p>Judicial Sales — Bids—Jurisdiction Over Purchaser. Tlie purchaser at a receiver’s sale made under order of court submits himself to the jurisdiction of the court, and may be compelled to comply with his bid by rule in the original case.</p> <p>Frauds, Statute or — Judicial Sales. Judicial sales do not fall within the statute of frauds.</p>

<p>Husband and Wife — Community Property — Conveyance to Wife —Form. Where the husband had charge of a transaction whereby property was conveyed to the wife, as and for her sole and separate property, the form of the deed is binding upon him, and the property becomes her separate property.</p> <p>Wills — Execution—Undue Influence. Undue influence will operate to defeat a will, although the testatrix was mentally competent, where there was coercion, imposition, fraud, or influence impelling the testatrix to act in fear, desire for peace, or something which she was unable to restrain.</p> <p>Wills — Undue Influence — Evidence—Competency. Undue influence in the execution of a will need not be shown by direct evidence, but it is competent to show the relations of the parties, the surrounding circumstances, habits and inclinations of the testatrix, and the fact that provision had been made for a son in four or five wills previously executed.</p> <p>Wills — Construction. A clause in a will asking the sole beneficiary to “make provision for my son R. as requested by me,” must be construed in the light of several former wills in favor of R. and the circumstances surrounding its execution.</p> <p>Wills — Undue Influence — Burden of Proof. While ordinarily the burden of proof is upon the contestant of a will claiming undue influence, sufficient is shown to put the executor to his proof that there was no undue influence, where it was shown that the will was in the handwriting of the sole beneficiary, that although he knew of a former will in favor of a son, he kept its repudiation secret, and that he took care to have a physician act as witness in order to preserve proof of mental capacity, in view of former wills in favor of, and an admitted attachment for, the son.</p> <p>Same — Evidence—Sufficiency. In such a case, undue influence is sufficiently shown, where in addition to-such facts, it appears that the testatrix, then on her deathbed, had, on the day before, executed a will making provision for a son, the next day executing the contested will making her husband her sole beneficiary with a clause asking that he make provision for the son “as requested” by her, that the testatrix was in a very weak condition, and had a great attachment for her son and frequently expressed an intention to leave him her property.</p> <p>Wills — Petition foe Pbobate — Right to Withdraw — Election. The contestant of a will, who petitioned for the probate of a prior will, cannot, upon winning his contest, withdraw his petition for probate of the will proposed by him, nor waive a lesser share under such will to take a greater share under the statutes of descent.</p>

<p>Master and Servant — Negligence—Incompetent Fellow Servants — Evidence—Sufficiency. In an action for injuries sustained when a stone moved by a derrick struck one of the men, it is not sufficient evidence that the derrickman was incompetent that he had worked as a derrickman on this job but two days, and that a short time before, when a stone struck the car, the superintendent had rebuked the gang and instructed the derrickman.</p> <p>Appeal — Review—Instructions. Instructions to the jury become the law of the case, so far as respondent is concerned.'</p> <p>Trial — Province of Court and Jury. Whether there is any evidence of a fact in issue is a question for the court.</p>

, entered November 16, 1911, in favor of the plaintiff, upon withdrawing from the jury an issue in garnishment proceedings.

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered June 28, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Evidence — Parol Modification of Written Contract. A parol modification of a written contract must be established by clear and convincing evidence.</p>

<p>Contracts — Construction—Breach. Under a contract whereby the plaintiffs agreed to dig a well at a specified price per foot and the defendants to furnish the necessary casing the plaintiffs are entitled to the agreed compensation if the defendants, within a reasonable time after demand, refused to furnish the casing reasonably necessary for the prosecution of the work.</p> <p>Triad — Province of Court and Jury — Construction of Contract —Verdict. Where the only dispute between parties to a written contract for digging a well was as to who breached the contract, resulting in a discontinuance of the work, and the jury found that the defendant was in default, the court may, upon a general verdict for the plaintiff, enter judgment for the proper amount, where it was a mere matter of computation.</p>

<p>Taxation —Constitutional Requirement — Uniformity — Bank Stock — “Property Tax.” The assessment of bank stock for the purposes of general taxation, under Rem. & Bal. Code, § 9134, requiring it to be assessed to the owners thereof at its full and fair value in money, is a property and not an excise tax, and hence is subject to the constitutional requirement that taxes be uniform and equal (overruling Pacific Nat. Bank v. Pierce County, 20 Wash. 675, 56 Pac. 936, and Ridpath v. Spokane County, 23 Wash. 436, 63 Pac. 261).</p> <p>Same — Uniformity—Arbitrariness—Relief—Equity. Const., art. 7, § 2, requiring a uniform and equal rate of assessment and taxation of property, is violated by the assessment of bank stock at 60 per cent of its value, when all other personal property is intentionally, and in pursuance of a fixed and definite policy, assessed at less than forty per cent of its value; and being arbitrary and a constructive fraud upon the rights of the property holder discriminated against, equity will grant relief.</p>

<p>New Teial — Insufficiency of Evidence — Disceetion — Abuse. Where a new trial was granted because the evidence was insufficient to sustain a verdict for the defendant, and the order was affirmed on appeal, upon a retrial of the same case upon substantially the same evidence, which was conflicting, it is an abuse of discretion to set aside a verdict for the plaintiff as not sustained by the evidence.</p> <p>Bills and Notes — Considebation—Extension of Time. An extension of time for the first payment to become due on a contract for the purchase of land, is a sufficient consideration for a promissory note for the amount of the payment.</p>

, entered March 17, 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>Appeal from a judgment of the superior. court for Pierce county, Easterday, J., entered December 19, 1911, upon sustaining a demurrer to the complaint, dismissing an action on contract, after a trial before the court.</p>

<p>Criminal Law — Appeal—Sentence—Partial Validity. The fact that cruel punishment is inflicted does not warrant the reversal of a conviction, since the conviction would be affirmed with directions to enforce the legal part of the sentence.</p> <p>Criminal Law — “Cruel Punishment” — Discretion of Legislature. The operation of vasectomy for the prevention of procreation, authorized by Rem. & Bal. Code, § 2287, cannot be judicially determined to be cruel punishment, in violation of Const., art. 1, § 14, where the sentence required it to be carefully and skillfully performed and there was no showing that it was attended with any marked degree of physical torture, suffering or pain; the rule being that the discretion of the legislature in fixing penalties will not be disturbed except in extreme cases.</p>

, entered November 11, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in consolidated actions for personal injuries sustained through a collision with an automobile.

<p>Appeal — Review — Harmless Error — Pleadings—Amendments. Where the case was tried on the merits to the court with fully opportunity to each party to present the evidence, error cannot be assigned on technical objections to the pleadings, which will be considered as amended.</p> <p>Beneficial Associations — Forfeiture of Membership — Reinstatement — -Estoppel—Acceptance of Dues. A foreign beneficial association is estopped to assert that a member was not reinstated and had forfeited his rights, where, after a default, he regularly applied for reinstatement, was informed by the local lodge that he was reinstated, and subsequently paid all dues, which were forwarded to and retained by the society, credited on the local lodge’s general account, leaving the member as standing suspended without notice to him; since the local lodge was the representative of the society.</p>

, entered November 2, 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>Appeal from a judgment of the superior court for King county, Prigmore, J., entered June 10, 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 building.</p>

<p>Carriers — Injuries to Passengers — Sleeping Cars — Evidence— Nonsuit. In an action by a passenger against a railroad company and a sleeping car company for injuries sustained on a sleeping car through the negligent construction of a door and want of lights on the car, a nonsuit as to the sleeping car company is proper, where it was not alleged or shown that it sold the ticket or owned or operated the car.</p> <p>Same — Degree of Care — Sleeping Cars. The duty of a railroad company to exercise the highest degree of care for passengers compatible with practical operation, applies to sleeping cars connected with the train, regardless of any private contract or arrangement it may have with the sleeping car company.</p> <p>Same — Cars and Appliances — Negligence—Evidence. A spring sufficiently strong to close a toilet room door on a Pullman sleeper being a necessary safeguard, in view of the swaying and lurching of the train, evidence that the spring was stronger than found on other cars, is not sufficient to establish negligence or make a case for the jury.</p> <p>Same — Negligence—Res Ipsa Loquitur. The doctrine of res ipsa loquitur does not apply to the case of an injury to a passenger by reason of the automatic closing of a spring door, when it was not shown that the door did not close when it ought not to have closed or that the spring did not perform its function.</p> <p>Same — Negligence—Lighting Car — Question for Jury. In an action by a passenger for injuries sustained when her hand was caught by the closing of a spring door to the toilet room in a sleeping car, whether it was reasonably necessary to light the passageway or toilet room is a question for the jury, where it was a reasonable inference from the testimony that the accident would not have happened if lights had been provided.</p> <p>Same — Contributory Negligence — Question for Jury. In such case, the contributory negligence of the plaintiff in failing to call for lights is for the jury, where she testified that as soon as she discovered that the toilet room was in darkness she started back to call for light and was injured.</p> <p>Same — Negligence—Operation—Sudden Lurch — Evidence—Sueeiciency. The lurching of a passenger train does not show negligence, where there was no evidence that the lurch was. so violent as not to be accounted for except upon the theory of a defective roadbed or improper management; the doctrine of res ipsa loquitur not applying.</p>

<p>Fraudulent Conveyances — Presumptions—Burden of Proof— Evidence — Sufficiency. Under Rem. & Bal. Code, § 5292, providing that, where any question arises as to the good faith of a transaction between husband and wife, the burden of proof shall be upon the party asserting the good faith, the presumption that a transfer by a husband to a wife of 199 shares of corporate stock, valued at $14,000, is fraudulent as to creditors, is not overcome by clear and satisfactory proof, as required, where it appears that the husband was indebted on a judgment for $8,900, that he was being pressed for payment, that his claim that he did not know of the judgment was unfounded in fact, and that he claimed that the transfer was in consideration of $5,000 borrowed and of other stock which he had borrowed and was holding for his wife, which at one time was of the value of $9,000, but was worth only $1,000 at the time of the transfer of the stock in question; and it further appears that the $5,000 came from the sale of a house valued at $7,500 to which the husband had contributed $6,000, that he had made statements that he owned the stock, admitted that he had no intention of paying the judgment, and his evidence was wholly uncorroborated.</p>

<p>Appeal — Duplicitous Appeal — Dismissal. An appeal will be dismissed as duplicitous, where two separate actions, brought by different plaintiffs, upon distinct indemnity bonds against different defendants, were, upon oral agreement “tried together,” and distinct judgments in different sums entered in each action, whereupon the defendants in the two actions joined in one notice of appeal from both judgments, giving one appeal and supersedeas bond, in double the aggregate of the two judgments, and $200 added; there never having been an order consolidating the two actions.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered July 8, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a defective scaffold.</p>

, entered March 9, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action on contract.

, entered January 14¡, 1911, upon findings in favor of the defendant, after a trial before the court without a jury, in an action on contract.

, entered December 9, 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.

, entered October 14, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for wrongful death.

, entered November 17, 1911, upon the- verdict of a j ury rendered in favor of the plaintiff, in an action for breach of covenant.

, entered May 5, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a passenger in alighting from a street car.

, entered May 30, 1911, upon findings in favor of the plaintiff, fixing a receiver’s compensation, after a hearing before the court.

<p>Trial — Nonsuit—Credibility op Witness — Question por Jury. Where on a former appeal, on substantially the same evidence, the supreme court upheld the sufficiency of the evidence to sustain a recovery, the fact that the testimony of one witness in the second trial varied on immaterial issues from his former testimony, does not warrant a nonsuit, where the contradictions merely affected his credibility and it was for the jury to determine the credit to be given to his testimony.</p> <p>Master and Servant — Injuries to Servant — Safe Place — Mines —Evidence—Admissibility. In an action for the death of a coal miner poisoned by gases in a room on the 10th level on the west side of the mine, it is not error to admit evidence that the air was frequently bad on the 9th level on the east side of the mine, although that place was not in issue, where there was evidence that there was a passageway whereby the air could pass from the one place to the other, and where evidence of frequent bad air throughout the mine also supported the allegation that the rules of the company were frequently violated by shooting blasts at the noon hour; especially where the court cautioned the jury that the general system of ventilation was not complained of as defective and that the only issue was as to insufficient ventilation of the particular room.</p> <p>Death — Action por Wroncpul Death — Excessive Verdict. A verdict for $18,000, in favor of a widow and children, for the death of a coal miner, from 35 to 37 years of age, in good health and able to earn about $65 a month, and having a life expectancy of thirty years, is excessive and should be reversed unless $4,000 is remitted.</p>

, entered April 86, 1911, in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action for unlawful detainer.

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered June 19, 1911, upon granting a nonsuit, in an action on contract.</p>

, entered June 20, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover a broker’s commission.

, entered November 9, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through stepping upon a trapdoor.

, entered December 6, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee assisting in moving an iron water tank.

, entered November 2, 1911, 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 mortgage.

<p>Appeal from an order of the superior court for Spokane county, Webster, J., entered October 5, 1911, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action on a promissory note.</p>

<p>Stipulations — Construction—Compromise and Settlement — Arbitration — Revocation. Where an action to quiet title was compromised, by the plaintiffs agreeing to convey part of the land to the.defendants and to sell the defendants any part of the balance at its market value, as determined by the parties or by arbitration, the contract recqgnized the plaintiffs’ title and authorized a decree accordingly, and was not revocable as a mere executory agreement to submit to arbitration, since only an incidental matter was to be submitted; and defendants’ remedy on failure of the arbitrators to agree was by application to the courts to flx the market value of the land.</p> <p>Compromise and Settlement — Rescission—Part Performance— Arbitration and Award. Where a contract for the compromise of a suit to quiet title has been partly performed by the execution of a deed to the defendants and entry of the judgment adjudging plaintiffs’ title to the balance, the defendants cannot rescind for failure of the arbitration as to an incidental matter of fixing the market value of land which they were to purchase from the plaintiffs.</p> <p>Deeds — Delivery—Acceptance. A deed made to defendants in compromise of a suit to quiet title, pursuant to agreement, and delivered to and retained by their attorney with their knowledge, is accepted by them.</p> <p>Same — Rescission—Retention of Benefits. A party cannot rescind a compromise of a suit while retaining a deed of land made pursuant to the compromise, without any offer to reconvey the land deeded.</p> <p>Attorney and Client — Authority—Compromise of Suit. Where an action to quiet title was compromised by an agreement recognizing the plaintiffs’ title, and defendants authorized their attorney to carry out the contract, the attorney had authority to consent to a decree confirming the plaintiffs’ title on their performance of the contract.</p>

, entered May 15, 1911, granting an injunction pendente lite restraining a trespass on real property, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Spokane county, Yakey, J., entered August 5, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

Appeal' from a judgment of the superior court for King county, Main, J., entered February 17, 1912, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action for rescission.

, entered January 26, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a night watchman in a sawmill.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered November 3, 1911, upon sustaining a demurrer to the complaint, dismissing an action on contract.</p>

<p>Judgment — Vacation — Second Judgment. After entry of final judgment in a cause, the court is without power to enter another, until the first is regularly cancelled or set aside; and the first judgment is not vacated by a second judgment making no mention of the first.</p> <p>Judgment — Stay—Motion Non Obstante Veredicto. A motion for judgment non obstante veredicto does not operate as a stay preventing the entry of a judgment, when it was not treated or considered as a motion for a new trial.</p> <p>Appeal — Decision — Review — Judgment Not Appealed From. Rem. & Bal. Code, § 1737, providing that the supreme court may affirm, reverse, or modify the judgment appealed from, or direct the proper judgment to be entered, does not authorize the court, upon appeal from a judgment which was void because of a prior final judgment in the cause, to review or modify the first judgment which was not appealed from.</p>

, entered September 9, 1911, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for money loaned.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 20, 1911, in favor of the plaintiff, in an action on promissory notes and to foreclose a mortgage, after a trial before the court.</p>

<p>Wills — Lost Wills — Establishment — Evidence — Sufficiency. Under Rem. & Bal. Code, § 1314, providing that no lost will shall be admitted to probate unless its provisions shall be clearly and distinctly proved by at least two credible witnesses, both witnesses must testify to its provisions from their own knowledge of its contents, and not from statements made by the testator.</p>

<p>Appeal from a judgment of the superior court for San Juan county, Joiner, J., entered October 3, 1911, in favor of the plaintiffs, after a trial on the merits before the court, in an action for equitable relief.</p>

<p>Counties — Actions—Conditions Precedent — Claims—Necessity. Rem. & Bal. Code, § 3918, requiring claims against a county to be presented to the county commissioners for allowance before any action can be brought thereon has no application to an equitable suit to restrain the county from interfering with or diverting the flow of springs claimed by the plaintiff.</p> <p>Waters and Water Courses — Springs—Prescription—Rights oe Public — Counties—Highways. Springs which were originally open to appropriation may become the subject of a prescriptive right acquired by the public for a watering trough in the highway through adverse use for the statutory period.</p>

<p>Appeal — Parties Entitled — Right to Appeal. Where, in an action to foreclose a second subcontractor’s lien, plaintiff recovered judgment against the first subcontractor, who was given judgment against the principal contractor for any sum he might be compelled to pay on plaintiff’s judgment, the principal contractor is ultimately liable and may appeal from plaintiff’s judgment against the subcontractor.</p> <p>Evidence — Best and Secondary — Contracts—Checks and Slips. In an action to foreclose a lien for excavation work, there was com-, petent evidence of the amount of earth removed, where it appears that plaintiff’s foreman, who could not be found at the time of trial, signed daily slips showing the number of loads removed, his signature was identified, the bookkeeper examined and totaled the slips, the total checked with the sum paid by a third party to whom the dirt was sold and delivered, as evidenced by an indorsed check marked paid with a notation on the back as to the number of loads, and the parties had agreed as to the yardage of each load.</p> <p>Mechanics’ Liens — Action to Foreclose — Issues — Appeal— Right to Allege Error. In an action to foreclose a subcontractor’s lien for excavation work, in which plaintiff recovered judgment against another subcontractor, who in turn was given judgment against the principal contractor for any sum he might be compelled to pay on plaintiff’s judgment, the principal contractor cannot complain that plaintiff’s judgment contained an item that was not lien-able, the owner of the property and the subcontractor not having appealed.</p> <p>Same — Issues—Pleading — Cross-Complaint Against Codefendant. In an action to foreclose a second subcontractor’s lien for excavation work, in which the first subcontractor and the principal, contractor are made defendants, the first subcontractor may cross-plead against the principal contractor and have legal relief on his contract, to avoid a multiplicity of suits, in view of Rem. & Bal. Code, § 406, providing that when the justice of the case requires it, the court may determine the ultimate rights of all the parties.</p> <p>Jury — Right to Jury Trial — Legal Issues in Equitable Action. In an action to foreclose a subcontractor’s lien, a defendant is not entitled to a jury trial of the legal issues arising between the defendants; since equity, having obtained jurisdiction, retains it to the end.</p>

<p>Master and Servant — Fellow Servants — Transmitting Signals. Where the head loader in loading logs on ears with a donkey engine usually gave the signals for the engineer to start the engine, but in case he could not see the engineer, he transmitted the signals through the second loader, the two are fellow servants, and recovery cannot be had for the death of the head loader through negligence of the other in signaling the engineer to start while the deceased was in a place of danger.</p>

<p>Homicide — Pbemeditation and Malice — Justification—Evidence —Question fob Juey. In a prosecution for homicide, the questions of malice and premeditation and justification are for the jury, where it appears that defendant and deceased had quarreled the day before over an obstruction in the road, that defendant admitted that he shot the deceased, whose body shortly after the shooting was found in a large pool of blood near his hat in the road, and that some ninety-six steps away was an empty cartridge, and the tracks of three persons lead away therefrom, but no footprints were found near the body, and the defendant and the two other witnesses testified that deceased first attacked them in a threatening manner as though about to draw a pistol, when defendant shot twice, and that after the second shot the deceased turned and walked away out of sight and they did not know that he was mortally wounded.</p> <p>Homicide — Justification — Reduction of Degrees — Burden of Proof. The killing being admitted, the burden of proving justification or reducing the crime to manslaughter is upon the defendant.</p> <p>Homicide — Premeditation and Malice — Evidence—Instructions. It not being necessary that there be direct and positive evidence of premeditation or malice, instructions thereon are properly given if those elements could be inferred from the circumstances proven.</p> <p>Homicide — Evidence—Admissibility. In a homicide case, the shirt worn by the deceased at the time he was shot, in the same condition as when removed from the body, is admissible in evidence.</p> <p>Same — Expert Evidence. In a homicide case, where defendant claimed that deceased attacked him and walked away after being shot, the evidence of a physician describing the wound in detail and stating his opinion as to how far deceased could have walked after receiving it, is admissible.</p> <p>Witnesses — Impeachment — Rebuttal — Credibility. After accused had denied that he and his codefendants had rehearsed their testimony in detail, evidence in rebuttal to show that the statement was untrue, is admissible, within the discretion of the court, as affecting their credibility.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered August 22, 1911, in favor of the defendant, after a trial on the merits before the court, in an action for an injunction.</p>

<p>Appeal from a judgment of the superior court for Klickitat county, McKenney, J., entered November 3, 1911, upon the verdict of a jury rendered in favor- of the plaintiff, in an action for personal injuries sustained by a passenger through the derailment of a train.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered January 17, 1912, dismissing an action for damages for fraud, upon withdrawing the case from the jury.</p>

<p>Appeal from a judgment of tlie superior court for Spokane county, Hinkle, J., entered May 19, 1911, upon the verdict of a jury rendered in favor of the defendant, in an action on contract.</p>

, entered January 10, 1912, upon findings in favor of the defendants, dismissing an action in mandamus to compel the levy of a tax.

<p>Municipal Corporations — Creation-Port Districts — Constitutional Law — Inherent Legislative Powers. The port district act, Laws 1911, p. 412, authorizing the creation of port districts as municipal corporations, is not unconstitutional as creating municipal corporations not recognized by the constitution, there being no express constitutional prohibition against the creation of municipal corporations other than counties, cities, towns and school districts specifically named in the constitution, and the creation of municipal corporations being an inherent legislative power without express authority therefor; especially in view of the fact that the constitutional provisions respecting counties, cities, towns and school districts only regulate and do not expressly authorize their creation, and in view of Const, art. 8, § 6, referring to “other municipal corporations” than those specially mentioned.</p> <p>Same — Creation of Port Districts- — Constitutionality of Act— Partial Validity — Action—Pleading—Complaint. Tbe port district act, Laws 1911, p. 412, authorizing the creation of port districts with power to make harbor improvements coincident or concurrent, to some extent, with the powers of counties and cities, is not void in its entirety from the mere fact that the port district may, in whole or in part, occupy the same territory as, and be superimposed upon another municipal corporation or corporations limited by the constitution in the amount of the expenditures that may be incurred for improvements of the same nature; and a complaint questioning the validity of a port district and its proposed indebtedness is insufficient where it does not appear that the indebtedness proposed would, with the existing indebtedness of the other municipality, exceed the constitutional limit.</p> <p>Appeal — Briefs—Presentation 'of Questions. Important and far-reaching constitutional questions are not sufficiently presented to call for a decision, when presented in a perfunctory manner within the compass of two pages of the brief, and without the citation of any authority; especially if moot questions, not controlling the real issues.</p> <p>Municipal Corporations — Creation of Port District — Election —Validity—Designation op Polling Place — Notice. A port district election is not invalidated by the failure to show that county commissioners designated the polling places “by resolution,” where it appears that the clerk of the board made arrangements for the polling places, the board allowed and paid rent therefor, and a fair expression of the wishes of the voters was not interfered with; nor by the fact that no notice of the polling places was given, when the statute did not require notice, and there was no claim of fraud or unfairness.</p> <p>Same — Notice of Registration. Irregularity in a port district election in that in a few small towns no notice of opening the registration polls was given as required by Rem. & Bal. Code, § 4765, does not invalidate the election, where it appears that all but a few hundred voters in such town voted, and the vote carried by a majority of over nine thousand.</p> <p>Same — Ballots—Form. A port district election is not invalidated by the failure of the ballots to conform strictly to the expressions prescribed by law, and the fact that they contained other matter, where the matter was explanatory and did not mislead, but rendered the question submitted clear and certain.</p> <p>Same — Canvass of Returns. A port district election is not invalidated by an irregularity in the canvassing of the votes, the canvass being made by the general election board instead of the county commissioners as required by the port district act, in the absence of an allegation that tbe canvass made was incorrect and changed the result. "</p> <p>Same — Election—Indebtedness Inctjbred — Limitations. An election to authorize the incurring of indebtedness by a port district is not invalidated in that the debt exceeded the statutory limit of two and one-half per cent of the assessed valuation of property within the district, where it appears that eight distinct propositions were voted on, and the aggregate indebtedness for all the propositions, exclusive of the last one, was within the limitation, and no other debt was contemplated or threatened; and the last proposition was separate from and additional to the others and contingent and expressly conditioned upon the event that, at some future time, the district should have the necessary legal authority and right to incur the indebtedness.</p> <p>Same — Public Impbovements — Submission to Votebs —Plans Adopted — Subeiciency. Laws 1911, p. 423, § 9, requiring the port commission to adopt detailed plans and an estimate of the expense of the proposed improvement and submit the same to the voters, as a prerequisite to the incurring of indebtedness, is satisfied by the adoption of plans that fairly inform the voters of the nature and extent of the proposed improvement, and it is not essential that plans be adopted in such detail as necessary for the final construction of the improvement.</p> <p>Same — Public Impbovements — Submission to Votebs — Resolution — Levy oe Tax. A resolution of a port district commission for the issuance and sale of bonds, providing that the net income shall be applied to the payment of principal and interest on the bonds from year to year, and a tax levied annually for support to pay the balance of the interest and bonds annually maturing, does not constitute the levy of a tax, but is nothing more than a pledge that the tax will be levied to make up any deficiency in the income.</p> <p>Same — Public Impbovements — Bonds—Interest—Sale at Discount. The port district act not providing the rate of interest that the commission may authorize on bonds sold, the commission will not be enjoined from selling at a discount bonds drawing four and one-half per cent interest, the limit specified in the resolution calling the election, where it is not alleged that the discount allowed will make usurious interest, the general powers of the commission clearly including the power to regulate the rate of interest, and there being nothing in the resolution respecting the rate at which the bonds should be sold.</p> <p>Appeal — Review—Amendments Pbesumed. The supreme court may treat the complaint as amended and consider all questions that were deemed within the issues and determined on the merits in the lower court.</p> <p>Municipal Corporations — Indebtedness— Constitutional Limit • — Superimposed Municipalities. The constitutional provision that no county, town, school district, or other municipal corporation shall become indebted to an amount exceeding a certain per centum of its taxable property, fixes a separate limitation for each corporation named which is not affected by the indebtedness of the different municipalities having jurisdiction over the territory on which it is superimposed, if the legislature did not abuse its power by providing for the creation of a municipal corporation for the sole purpose of avoiding the constitutional limitation of indebtedness.</p> <p>Same. A port district covering an entire county, is a municipal corporation having an independent existence with power to incur indebtedness on its own account up to the constitutional limitation, and its creation is not an abuse of the power of the legislature in that it was created to avoid the constitutional limitation of indebtedness of the municipal corporations upon whose territory it was superimposed, where they were created for entirely different purposes, and its chief object was to provide public terminal facilities for both sea and land commerce, although the municipalities upon which it was superimposed had somewhat similar powers respecting the acquisition of such facilities.</p> <p>Municipal Corporations — Property—Acquisition—Private Purposes — Leases—Loan of Credit. The borrowing of money for the purpose of acquiring sites for docks, wharves, and other public structures is a municipal purpose as well as a public purpose, and is not a loaning of municipal credit to an individual, within the meaning of the constitution, notwithstanding they were to be leased for a limited time to private persons; and the private uses of the lessee would not affect the validity of the bonds issued to acquire or construct them, if they were not acquired or constructed for the sole purpose of leasing, and the power was reserved to regulate wharfage charges.</p> <p>Municipal Corporations — Indebtedness and Bonds — Powers— Restrictions — Statutes—Construction. Laws 1911, p. 418, § 4, empowering a port district to acquire or construct systems of sea walls, jetties, wharves, docks, ferries, canals, locks, tidal basins and other rail and water transfer and terminal facilities, and to issue local improvement bonds to pay for the same, contains a seeming inconsistency in also providing that no bonds shall ever be issued for the acquiring of any “dock or wharf” until such dock or wharf has been leased upon terms which will produce a net income sufficient to pay the bonds at maturity and the interest thereon, in view of the requirement in § 6 of the preliminary adoption of a comprehensive plan or scheme of the entire system; and such limitation as to docks and wharves can have no application, where a comprehensive scheme has been adopted, as required by § 6, in which there is no possibility of separating the earnings of the dock or wharf from the earnings of the other facilities making up the entire system; and hence it must be construed to apply only where a dock or wharf is acquired separately or together without the other facilities.</p> <p>Municipal Corporations — Improvements — Poet Districts — Indebtedness — Submission—Proceedinos. The submission of the question of incurring indebtedness by a port district under Laws 1911, p. 418, §4, is authorized after the adoption of the “comprehensive scheme” provided for in § 6, and prior to the adoption of the “detail plans” provided for in § 9.</p>

<p>Appeal — Decision—Law oe Case. A decision on a former appeal that the facts made a case for the jury, becomes the law of the case, and is conclusive on a second appeal, taken after a reversal and remanding the case for judgment upon the verdict.</p>

, entered July 11,1911, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for personal injuries sustained by an employee through the breaking of a saw. Affirmed.

<p>Appeal — Supersedeas — When Granted — Bond Insufficient— Statutes. Rem. & Bal. Code, § 1722, authorizing a stay of proceedings on appeal, upon the giving of a bond conditioned to pay all damages suffered by the delay, has no application to an appeal from a judgment in mandamus directing city commissioners to call an election upon amendments to the city charter proposed by the electors, since there can be no damages to measure and no liability on the supersedeas bond. '</p> <p>Appeal — Supersedeas—Bv Supreme Court. The supreme court will not grant a supersedeas on appeal from a judgment in mandamus directing the submission of amendments to a city charter where it would unreasonably delay the taking of a popular vote; since it is a matter involving popular right in which the writ of audita querela would not issue.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered December 17, 1910, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.</p>

<p>Certiorari to review a judgment of the superior court for Lewis county, Rice, J., entered September 23, 1912, enjoining the publication of notice of a local option election.</p>

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered November 16, 1911, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to vacate a judgment.</p>

King county; Myers, J., entered November 14, • 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Certiorari to review a judgment of the superior court for Spokane county, Webster, J., entered August 22, 1912, granting a writ of mandamus, after a hearing before the court.</p>

<p>Venue — Change of Venue — Prejudice of Judge — Courts—Jurisdiction. The act, Laws 1911, p. 617, requiring a change of venue on the filing of an affidavit of prejudice of the trial judge, is imperative, and with the transfer the court acquires full jurisdiction to determine all questions as to where the case shall be tried.</p> <p>Prohibition — To Courts — Scope—Remedy by Appeal. Prohibition does not lie to prevent the trial of an action by a court to which a change of venue is taken on account of prejudice of the judge; since the court acquired jurisdiction and there is an adequate remedy by appeal.</p>

, entered March 6, 1911, in favor of the defendants, after a hearing before the court, dismissing an action for equitable relief.

, entered May 19, 1911, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to set aside a will.

<p>Building and Loan Associations — Franchise—Forfeiture—Actions — Prerequisites—Notice—Oral Proof — Competency. Where the state auditor orally notified the attorney general that he deemed it unsafe or inexpedient for a building and loan association to continue to transact business, which by Rem. & Bal. Code, § 3620, is a prerequisite to suit by the attorney general, such notice may be proved by any competent witness who was present and heard the communication.</p> <p>Continuance — Absence of Evidence — Abuse of Discretion. In an action by the state to dissolve an unlawful building and loan association, tried by the court without a jury, it is an abuse of discretion to refuse a continuance for less than one day to enable the state to obtain competent proof of the prerequisite auditor’s notice to the attorney general to prosecute the suit, if, by any misunderstanding, counsel for the state had failed to prove such preliminary fact.</p> <p>Building and Loan Associations — Franchise—Forfeiture—Illegal Business — Evidence—Sufficiency. A suit is warranted by the attorney general to dissolve a corporation which was doing a building and loan association business without complying with the laws relative to such corporations, and without investing any capital of its own, where it had so extravagantly and wastefully managed its affairs that it had cost the investors $100,000 to invest $50,000 of their own money.</p> <p>Same — Illegal Business — Defenses — Estoppel ■— Consent op State Officials. Engaging in the business of a building and loan association without complying with the laws governing such corporations is against public policy, and the fact that the state auditor gave his consent thereto on the advice of the attorney general does not estop the state from proceeding against the corporation to prevent a continuance of the business.</p> <p>Same — Forfeiture of Franchise — Illegal Business — Rights of Investors to Assets. Where a corporation illegally engaging in a building and loan association business has accumulated a fund that belongs to the investors, and sought to transfer its assets to a legally incorporated company, the investors are entitled to have the fund distributed without further reduction than the necessary cost of administering it; and the newly organized building and loan association should be dissolved, where it appeared to be organized for the sole purpose of taking over and administering the fund.</p>

, entered October 3, 1911, in favor of the defendant, after a trial before the court, dismissing an action to enjoin a trespass.

, entered July 5, 1911, in favor of the plaintiffs, after a trial on the merits before the court, in an action to quiet title.

, entered October 30, 1911, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for malpractice.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered November 13, 1911, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for divorce.</p>

<p>Judgment — Lien—When Attaches — Priority Over Subsequent Conveyances. The lien of a judgment attaches from the date of entry, notwithstanding the pendency of a motion for a new trial; and the lien cannot thereafter be impaired by a voluntary conveyance by the judgment debtors, nor the title acquired under execution sale questioned by vendees of the judgment creditors who had notice of the judgment and failed to redeem.</p> <p>Evidence — Parol Evidence — Deeds — Description — Identification of Property — Bona Fide Purchasers. It is admissible to show by parol, to aid in the description of “Block 95, Edmonds” in a sheriff’s deed, and to identify the property, that the “Plat of Edmonds” had no block 95, while there was such a block in the “Plat of the City of Edmonds,” and no other block of that number within the corporate limits; and such description is sufficient to put bona fide purchasers upon inquiry.</p>

, entered November 20, 1911, in favor of the defendant, after a trial on the merits before the court, dismissing an action to enjoin interference with the waters of a stream.

<p>Certiorari to review a judgment of the superior court for King county, Joiner, J., entered September 25, 1912, upon sustaining a demurrer to the petition, in an action seeking an order of court to compel election officers to make return of the ballots cast for candidates at a primary election.</p>

, entered May 3, 1911, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered January 10, 1912, upon findings in favor of the defendant, denying the right to condemn lands for an irrigation project.

<p>Application for a writ of prohibition, filed in the supreme court September SO, 1912, to prohibit the state canvassing board from certifying defendant’s nomination as governor.</p>

<p>Contracts — Building Contracts — Assent—Consideration ■— Evidence — Sum cien cv. The evidence is insufficient to sustain a verdict to tbe effect that a contract was entered into whereby the defendant, a general contractor, was to sublet to the plaintiff a part of contemplated city work, provided he obtained the city contract in consideration of the plaintiff’s making an estimate on that part of the work, where it appears that the plaintiff’s estimate was largely in excess of the limit fixed by the city, it was not shown that the defendant used the estimate and it was customary for subcontractors to furnish such estimates and there was no other consideration for the contract.</p>

<p>Partnership — Assumed or Firm Name — Filing Certificate— Statutes — Scope of Act. A person conducting a business in which he alone is interested, in the name of a company containing his full name, is exempt from filing with the county clerk the designation of the firm with the true and real names of all persons conducting the business or having an interest therein, pursuant to Rem. & Bal. Code, § 8369, by Id. § 8372, providing that nothing in the act shall prevent the lawful use of a partnership designation if the same includes the true and real name or names of all the parties conducting such business or having an interest therein.</p> <p>Corporations — Representation—Acts of Officers — Contracts— Question for Jury. A prima facie ease of authority of the president of a corporation to hire automobiles is established, where the company owned a platted addition where it was selling lots, and the principal use of the automobiles was to carry prospective purchasers from the city to the addition to inspect lots.</p>

<p>Eminent Domain — Public Use — Future and Present Needs — Surplus Power — Peínate Use. A power and water company may condemn property for the public purposes of municipal lighting and of electric railways, notwithstanding it seeks to avail itself of Rem. & Bal. Code, § 4974, granting it the right to use for private purposes electricity generated for public purposes if at any time there should be a surplus of power not needed for public purposes; since it may anticipate future as well as present public needs, where it acts in good faith and seeks no excessive or unreasonable appropriation.</p> <p>Same — -Public Use — -Surplus Power — Evidence — Sufficiency. Sufficient public necessity for condemnation is shown where an electric light and power company having agreed to furnish power to a town and an electric railway company, and contemplating other contracts for power for public purposes only, sought to condemn to develop ten thousand horse power, although hut a small part of such power was needed for the contracts already secured.</p>

<p>Appeal from a judgment of the superior court for King county, Prigmore, J., entered July 1, 1911, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.</p>

<p>Appeal from orders of the superior court for King county, Frater, J., entered February 4, and December 9, 1911, classifying and ordering paid certain claims against an estate, after hearings before the court.</p>

, entered June 30, 1911, in favor of the defendant, after a hearing before the court, dismissing an action for a writ of mandate.

<p>Bonds — Injunction Bonds — Damages—Loss of Property — Remote or Speculative Damages — Actions—Instructions. Where a temporary injunction was issued restraining the defendants from performing a city contract assigned to them by the plaintiffs, and an injunction bond was given by plaintiffs on appeal to keep the injunction in force, which bond obligated the plaintiffs to pay all costs and damages that may accrue to the defendants by reason of continuing the temporary injunction in force during the pendency of the appeal, it must be held that the parties contemplated any loss of profits and any damages to defendants that might accrue by reason of subcontracts, then in existence and known to the parties by which defendants had sublet the work, such profits not being too remote or speculative; hence, in a subsequent action on the injunction bond, the jury is properly instructed that it may take the subcontracts into consideration as tending to prove damages by loss of profits that could have been made on the contract.</p> <p>Bonds — Injunction Bond — Liability of Principal. Recovery on an injunction bond obligating the plaintiffs and surety to pay all costs and damages that may accrue to the defendants by reason of continuing the injunction in force cannot be objected to as subjecting the surety to a greater liability than that of the principal, since the statute makes the assumption of the liability by the principal a condition precedent to the continuance of the injunction.</p> <p>Bonds — Injunction Bonds — Pleading—Action—Complaint. In an action upon an injunction bond, the proceedings leading up to the injunction and judgment in the former action are relevant and may be pleaded in the complaint.</p> <p>Judgment-^-Res Judicata — -Parties—Bonds—Sureties on Bond of Party. Matters determined on a former appeal are res judicata in an action by defendants against the plaintiffs and their surety on an injunction bond given in the former action.</p> <p>Pleading — Admissions—Issues and Instructions — Offset for Admitted Note. Where, in an action on an injunction bond, the complaint admitted the existence of a $3,000 note due to the defendants as an offset to the damages alleged in the sum of $13,000, and the reply to the counterclaim on the note alleged that the note had long since been paid, the pleadings, while confusing, constitute a mutual admission that there has been no actual payment of the note; hence instructions on the subject are prejudicially erroneous, where the jury were told that the burden of proving payment o’f the note was upon the plaintiffs, that if they found damages, they could deduct therefrom the amount due on the note, but if not satisfied that the plaintiff is entitled to recover, and that the note was not paid, they must find for the defendant for the amount due on the note; since the instructions should have been framed to allow defendant an offset or judgment for the amount due on the note, upon any verdict rendered. • °</p>

<p>Statutes — Subjects and Titles — Amendments—Enumeration oe Sections Amended. The title of an act to amend an act providing for the organization and government of irrigation districts and the sale of bonds arising therefrom, the same being sections............ (specifying certain sections amended) sufficiently expresses the subject of the act without such enumeration of the amended sections, which may be treated as surplusage; hence the amendment of another section not specified in the title of the amendatory act is not void as not embraced within the title of the act, as required by Const., art. 2, § 19.</p>

, entered January 19, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for alienation of affections.

<p>Certiorari to review a judgment of the superior court for Thurston county, Easterday, J., entered August 19, 1912, adjudging a public use and necessity, in proceedings to condemn land for railway purposes.</p>

<p>Intoxicating Liquors — Local Option — Elections—“General Election” — Statutes—Construction. Under the local option law by which the legislature intended to allow an immediate election if the people of any unit desired it, and thereafter an election should be had only at a general county or state election, a city election is a “general election” within the meaning of § 23 (Rem. & Bal. Code, § 6294), providing that the petition for a,n election in a local unit shall be signed by qualified electors equal in number to thirty per cent of the electors voting at the “last general election within such unit;” especially in view of the history of the passage of the act showing that the several possible times for general elections were considered, and the last election preceding the regular biennial election was adopted, as giving the fairest index of the number of voters who will exercise the franchise.</p> <p>Statutes — Construction. The history of the passage of an act may be resorted to in determining the legislative intent in the use of the words “last general election.”</p>

<p>Appeal from a judgment of the superior court for Franklin county, Holcomb, J., entered November 10, 1911, dismissing an action on contract, upon withdrawing the case from the jury.</p>

<p>Public Lands — State Tide Lands — Fills—Contracts—Lien— Actual Cost of Fill — Subcontractor’s Profits. Where a contractor for filling, state tide lands under a contract limiting the cost to 16 cents per cubic yard, in good faith sublet the work to a dredging company at 15 cents per yard and expended 1 cent per yard in supervision and engineering, the “actual cost” to him, within Rem. & Bal. Code, § 8103, giving a lien for the actual cost of the fill, is 16 cents per cubic yard, without deducting the subcontractor’s profit of 3 cents per cubic yard.</p> <p>Same — Evidence of Cost — Presumptions. The certificate of the commissioner of public lands, given pursuant to Rem. & Bal. Code, § 8103, requiring him to determine the actual cost of filling state tide lands under a state contract, is presumptive evidence of the cost.</p> <p>Same — Tide Land Fills — Liens—Foreclosure—Attorney's Fees. Rem. & Bal. Code, § 8103, authorizing the foreclosure of liens for the cost of filling state tide lands “in the manner provided by law for the foreclosure of liens on real estate,” does not authorize the allowance of any attorney’s fee other than the $10 statutory costs.</p> <p>Same — Contracts for Fills — Lien—Issuance of Certificates— —Time for. Where two contracts for filling contiguous tide lands were entered into at the same time, with the view of excavating one general system of waterways, there being two connecting waterways, the commissioner’s certificates showing the amount of the liens by reason of the completion of one of the waterways under the first contract, against certain lots covered in the second contract, but which were nearer to and deriving their benefit from the completed canal under the first contract, are not prematurely issued, although the other waterway was not completed; since the two contracts were in substance one.</p> <p>Evidence — Documentary Evidence — Assignments. The original assignments of tide land contracts, executed in due form and acknowledged before a notary, are competent proof of the fact of the assignments; even if they were recorded without any authority of law.</p> <p>Public Lands — Tide Lands — Pills—Cost of Pill in Streets. Where a contract for filling unplatted tide lands, under Rem. & Bal. Code, § 8103, limited the cost to 16 cents per cubic yard, and subsequently the lands were platted, the cost of the fill in streets and alleys is to be added and charged to the abutting lands.</p> <p>Same — Tide Land Pills — Liens—-Cost of Work — Contracts— Profit — Statutes—Construction. Under Rem. & Bal. Code, § 8103, providing for liens in favor of the contractor filling in state tide lands for the actual cost of the work and fifteen per cent additional, provided that the lien shall not be operative for an amount exceeding the cost of the work, stated in the contract, the “cost of the work” includes the actual cost to the contractor and the added fifteen per cent allowed as his profit; hence in a contract limiting the “cost” of the fill to sixteen cents per cubic yard, it is proper, when the work actually cost the contractor 16 cents, to allow his lien therefor and 15 per cent additional.</p> <p>Same — Liens—Interest on Installments of Interest. In an action to foreclose the lien for filling state tide lands under Rem. & Bal. Code, § 8103, providing that the amount due a contractor on certificates for filling the same shall be payable in installments, with interest from the time of the issuance of the certificate, interest is properly allowed on installments of interest past due and unpaid.</p>

<p>Deeds — Exceptions—Construction and Operation. Where grantors owned timber land beyond the granted land, and a sawmill to which the timber must be brought across the land conveyed, a reservation in the deed “excepting a strip of land thirty feet wide . .. for road purposes,” must be reasonably construed as for the benefit of the grantor; and the use of a portion of the strip for a logging road, retaining the right of ingress and egress to the grantees, is not inconsistent with the terms of the exception clause, in view of the attendant facts and circumstances.</p>

, entered November 8, 1911, upon the verdict of a jury rendered in favor of the defendants, in an action upon a promissory note.

, entered October 23, 1911, upon findings in favor of the defendant, dismissing consolidated actions to set aside tax sales.

<p>Municipal Coepoeations — Street Improvements — Assessments— Proceedings. Where an act prescribing a method of levying special assessments provided (Rem. & Bal. Code, §7873), that nothing in the act shall be construed to limit or repeal any existing powers of cities with reference to such improvements, a city was authorized, after the enactment of the law, to levy special assessments under the preexisting laws and ordinances of the city.</p> <p>Same — Assessments—Notice—Appearance. Notice of a street assessment given to the owner’s agent, who appeared and filed exceptions to the assessment, is sufficient to confer jurisdiction to make the assessment.</p> <p>Pleading — Answer—Denial on Information. In an action to foreclose a special street assessment lien, an answer denying any knowledge on information sufficient to form a belief as to the agency of one who was alleged in the complaint to be the defendant’s agent, is evasive and is not sufficient to raise any issue thereon.</p>

<p>Appeal — Preservation op Grounds — Objections to Pleadings. A reply denying “each, and every material allegation” of an affirmative defense, will be considered sufficient on appeal, where no objection or motion to make more specific was made below and it was there treated as sufficient before verdict.</p> <p>Street Railways — Collision—Persons in Street — Contributory Negligence. Whether it was contributory negligence for plaintiff, who had one arm in a sling, to lead a horse behind a buggy, along a narrow street on which street cars were operated, depends upon the character of the horse, and where the horses were gentle and not usually frightened by street cars, the question was for the jury.</p>

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered December 13, 1911, dismissing an action for a writ of mandamus, upon sustaining a demurrer to the application.</p>

<p>Intoxicating Liquors — Local Option — Petition eor Election— Signers — Requisites. Tbe local option law, Rem. & Bal. Code, § 6294, requiring signers of tbe petition to give tbe “street and bouse number, if any, of bis residence,” and providing that no signature shall be valid unless tbe requirement is complied with, is mandatory and a signature to tbe petition failing to give tbe street and bouse number, if any, is invalid and cannot be counted in determining whether sufficient electors have signed tbe petition.</p> <p>Same. Tbe local option law, Rem. & Bal. Code, § 6294, providing that every signer of tbe petition in a city, as distinguished from a town, shall give bis “street and bouse number, if any, of bis residence,” requires him to give bis street, if any, although be has no bouse number.</p>

, entered October 14s, 1912, prohibiting the county auditor from printing the relator’s name upon the general election ballots as a nominee of the socialist party for the office of representative.

Application filed in the supreme court October 15, 1912, for a writ of mandamus to compel the secretary of state to certify a nomination for the office of judge of the superior court of Douglas and Grant counties.

, entered October 9, 1911, upon findings in favor of the defendant, in an action for trespass, after a trial on the merits to the court.

, entered August 30, 1912, upon granting a nonsuit, dismissing an action for personal injuries sustained by a fireman of a donkey engine.

, entered November 25, 1911, upon findings in favor of the plaintiff, in an action in tort, after a trial on the merits to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered February 10, 1912, upon findings in favor of the defendants, in an action to set aside a sheriff’s sale.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered February 23, 1912, upon the verdict of a jury rendered in favor of the defendants, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered December 2, 1911, dismissing an action to quiet title, after a trial on the merits.</p>

<p>Specific Performance — Relief—Damages—Discretion. In an action for specific performance of a contract for the exchange of properties, in which there was a conflict in the evidence as to whether there had been a change of possession, an allowance of damages in lieu of specific performance will be sustained, where plaintiff is thereby fully compensated for his loss; since the relief is a matter resting in the sound discretion of the lower court.</p>

, entered March 29, 1912, in favor of the defendant, awarding costs, as against a county, in proceedings before the juvenile court.

<p>Carriebs — Of Goods — Who Are — Contract—Construction. The defendant, a forwarder of goods, is a common carrier, and liable as such for loss of goods by fire, and not merely as a warehouseman, where it orally contracted for a through shipment from plaintiff’s residence in a car of its own procurement and under its own control at a fixed rate, which was less than the railroad’s rate for car load lots and more than the rate on less than car load lots, the custom of the defendant being to assemble goods in a warehouse for its own convenience without storage charges, until car load lots could be forwarded to its own agent, who paid the railroad freight and attended to the receipt and distribution of the goods; and it is immaterial that it did not own any railroad line.</p> <p>Same — Loss of Goods by Fire — Storage by Carrier — Liabimty. A common carrier is liable as such for the loss of goods destroyed by fire in its warehouse, where the goods were delivered for transportation and not for storage, the storage being for its own convenience.</p> <p>Same — Value of Goods — Evidence—Sufficiency. A finding that household goods destroyed by fire in a warehouse were of the value of $700, is sustained by evidence of the plaintiff that they were worth $1,000, that being the cost price paid from one to three years previously, from which the court arbitrarily deducted 30 per cent, where the defendant admitted they were worth $500, and offered no evidence as to the value.</p>

<p>Appeal from a judgment of the superior court for What-com county, Kellogg, J., entered October 23, 1911, upon overruling a demurrer to the information, adjudging the defendant guilty of selling liquor in a dry unit in violation of the local option law.</p>

, entered December 27, 1911, upon sustaining a demurrer to the information, dismissing a prosecution for selling liquor in a dry unit in violation of the local option law.

, entered October 25, 1912, in favor of the plaintiff, upon stipulated facts, in an action to enjoin the placing of names of nominees on the general election ballot.

, entered October 25, 1912, in favor of the defendant, upon stipulated facts, dismissing an action to enjoin the holding of a local option election.

, entered February 5, 1912, upon findings in favor of the plaintiff, in an action for personal injuries sustained by an employee in a shingle mill, after a trial on the merits to the court.

, entered October 23, 1911, upon findings in favor of the defendant, in an action to compel a water company to furnish water to a customer.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered May 2, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for conversion.</p>

<p>Corporations — Officers — Salaries—Resolution—Construction. A resolution fixing tbe salaries of two officers of a corporation at $50 and $30 per week, “it being understood that tbe said salaries would be paid out of tbe net proceeds of tbe business,” makes tbe salaries conditional, and tbe only fund out of wbicb tbey can be paid is tbe net proceeds during tbe time tbe offices were beld.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Myers, J., entered May 6, 1912, dismissing an action for divorce at defendant’s cost, after a trial on the merits.</p>

<p>Motion to dismiss an appeal from a judgment of tbe superior court for King county, Dykeman, J., entered May 25, 1912.</p>

<p>Appeal from a judgment of tbe superior court for Spokane county, Hinkle, J., entered January 9, 1912, upon the verdict of a jury rendered in favor of tbe plaintiff, in an action on contract.</p>