Volume 71 — Washington Reports

<p>Application filed in the supreme court September 30, 1912, for a writ of mandamus to compel the superior court for Yakima county, Grady, J., to fix the amount of a supersedeas bond.</p>

<p>Pleading — Demurrer-—Objections Raised. On demurrer to the complaint for fraud in the sale to plaintiff of an undivided interest in certain land, it cannot be assumed that the undivided interests were uncertain or incapable of being made certain, where such fact was not pleaded.</p> <p>Vendor and Purchaser — Recovery of Money Paid — False Representations — Complaint—-Sufficiency. A complaint states a cause of action for the recovery of money procured by fraud, where it alleges that the defendant induced the plaintiff to purchase land, situated at a distance, in reliance upon false representations to the effect that the lots were on a level street, graded and with sidewalks, with adequate light and water facilities and electric railway service.</p> <p>Same — -Pleading-—Reliance on Representations. A complaint for the recovery of money procured by fraudulent representations as to lots sold to the plaintiff sufficiently alleges that the representations were made prior to the execution of the contract, where it is alleged that the plaintiff relied upon the representations and made the contract.</p> <p>Vendor and Purchaser — Rescission by Purchaser — Tender of Reconveyance — Pleading—-Necessity. In an action by a purchaser to recover money paid on sales induced by fraudulent representations, the complaint is not objectionable in that it fails to allege a tender to reconvey the land, where it does not appear from the complaint that the plaintiff ever received any deed.</p> <p>Assignments — Action by Assignee — Necessary Parties. In an action upon assigned claims for money procured by fraud and deceit, the assignors are not necessary parties plaintiff, as the right of action may be enforced by the assignee.</p> <p>Assignments — Chose in Action — Action for Fraud. A cause of action for money procured by fraud and deceit in the sale of land, rescinded by the purchaser on discovery of the fraud, survives and is assignable.</p> <p>Actions — Joinder of Causes — Assigned Demands for Fraud. Several rights of action against one defendant for money procured by fraud and deceit, assigned by various parties to one of their number, may all be joined and recovery had in one action under Rem. & Bal. Code, § 296, authorizing a plaintiff to join as many causes of action as he may have if they arise out of contract, express or implied, or injuries to property.</p>

, entered February 13, 1912, in favor of the plaintiff, upon sustaining a demurrer to the answer, in an action for a writ of mandamus.

<p>Sales — Rescission—Recovery oe Damages — Inconsistent Remedies — Election. The_ rescission of a sale, and the recovery of damages by way of recoupment, are inconsistent remedies, and cannot be maintained concurrently, but the party should be required to make an election.</p> <p>Election — Rescission and Recoupment — Presumptions'—Chattel Mortgages' — Foreclosure—Deeenses. In an action to foreclose a chattel mortgage, the property being in the possession of the plaintiff, in which the defendant pleads a rescission for fraud and asks damages by way of recoupment, in the absence of an election it will be assumed that the defendant relies primarily on the defense of rescission.</p> <p>Sales — Rescission—Diligence. Where defendant purchased a lodging house of plaintiff, and gave notes and a chattel mortgage upon representations that plaintiff had a valid lease of the building and upon his contract to give a lease for two years, and subsequently the owner gave notice that the plaintiff had no lease, the defendant is not estopped from rescinding by delay until eviction four months later, where the plaintiff denied the owner’s statement, and claimed at all times that he had a valid lease of the building, the facts being in doubt and disputed; since diligence is a relative question, and defendant had a right to rely on plaintiff’s assurance.</p>

, entered March 5, 1912, upon findings in favor of the defendants, in an action upon a bond given for the protection of laborers and materialmen upon city work, after a trial to the court.

, entered January 20, 1912, upon findings in favor of the defendants, dismissing an action on contract, after a trial on the merits to the court.

<p>Continuance — Absence oe Witnesses — Discretion. It is not an abuse of discretion to deny a continuance on account of the absence of a witness, defendant’s general manager, needed in the preparation of the defense, where it is admitted by the plaintiff that the witness if present would testify as it was claimed he would, and another witness testified in substance to the same effect, and was better able to give assistance in preparation than the manager.</p> <p>Master and Servant — Sake Place — Guarding Dangerous Machinery — Factory Act — Instructions. In an action for personal injuries to an oiler, caught by a conveyor chain which was unguarded at a point where he was compelled to stoop and cross under it, the court is not called upon to give instructions upon the theory that the defendants had made an honest effort to guard the chain under the factory act, where there was no pretense that it was guarded at this point; and it is sufficient if the jury was instructed that the plaintiff cannot recover if the conveyor chain was reasonably safeguarded.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered January 16, 1912, upon findings in favor of the plaintiff, in an action on contract.</p>

<p>Brokers — Contract for Commissions — Performance and Operation — Frauds, Statute of. Under Rem. & Bal. Code, § 5289, requiring a contract employing a broker to sell real estate upon a commission to be in writing, a broker cannot recover for effecting an exchange of his principal’s property, where the written contract employed him to make the exchange for certain specified property, which on inspection proved unsatisfactory and such trade was never consummated, although the broker was afterwards instrumental in effecting an exchange for other property not mentioned in the written contract of employment.</p>

<p>Appeal from an order of the superior court for Pierce county, Easterday, J., entered May 25, 1912, upon findings in favor of the defendant, refusing to modify decree of divorce.</p>

, entered October 23, 1911, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a bralternan employed on a work train.

, entered April 5, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court, in an action to enjoin a trespass.

<p>Appeal from an order of the superior court for King county, Myers, J., entered May 10, 1912, modifying a judgment pending appeal, after a hearing before the court.</p>

<p>Appeal — Review—Cessation oe Controversy. Objection to tbe jurisdiction of a state court to appoint a receiver for an insolvent railroad company, on tbe ground that tbe Federal court bas appointed receivers for it, will not be considered on appeal, where pending tbe appeal, tbe Federal court recognized tbe prior assumption of jurisdiction by tbe state court, and for that reason alone bad discharged its receivers and dismissed tbe bill.</p>

, entered January 6, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a fire insurance policy.

<p>Eminent Domain — Proceedings—Prerequisite—Adoption op Plan or Location. Under Rem. & Bal. Code, § 925, making tbe question of public necessity in condemnation proceedings a question for the court to finally decide, a formal resolution by the corporation adopting the particular plan or location prayed for in the petition, is not essential, either to pleading or proof, as a prerequisite to an adjudication of public use, where the contest is between the relator and the landowner, and there is no question of priority between rival companies making time material; the filing of the petition being sufficient as against the landowner.</p> <p>Same. The prosecution of condemnation proceedings for certain lands, instituted by an authorized attorney of the petitioner, is a ratification of the proceeding, and estops the petitioner from claiming that the action was unauthorized.</p> <p>Eminent Domain — Public Use — Power Plant — Electric Light— Private and Public Purposes. A condemnation for an electric power plant is for a public use, where the only present market for the power and the only present purpose was to furnish electric light for a town and its inhabitants; and it is immaterial that the petitioner was also authorized by its articles to sell power for all purposes, public and private; since these uses are separable.</p> <p>Same — Public Use — Necessity. Condemnation for an 80 horse power plant, to furnish electric light to a town that has present need for only 30 horse power, is not excessive, in view of the probable growth of the town, where there is no intention to use the power for other than public use, except in such small quantities as to be insignificant and incidental to the main public purpose.</p> <p>Same — Public Necessity — Presumptions—Evidence. In condemnation for an electric light plant by a company having a franchise and under agreement to furnish a town with electric light, it will be presumed that the enterprise is in the interest of the public, and evidence that the plan is wasteful and that another plan would develop greater power from the same source does not establish that there is no public necessity for the plan proposed; since, under Rem. & Bal. Code, § 925, the court is to determine the question of necessity, and can decide between the two plans when the occasion arises.</p> <p>Eminent Domain — Proceedings—Appeal—Remand. Where, in eminent domain proceedings to raise the waters of a lake for a reservoir, there was no evidence as to the height of the dam necessary, nor as to how much land would be flooded, the case will be remanded for a hearing and findings thereon.</p>

<p>Contracts — Evidence—Sufficiency. The evidence fails to establish a contract for slops for five months at ten dollars a month, where it appears that the defendant’s foreman refused plaintiff a contract for longer than one month, directing him to the office of the company, where he paid $50 for five months on representing that the foreman had contracted with him therefor.</p> <p>Contracts — Breach—Measure of Damages. In an action for breach of contract to furnish slops for hog feed, the plaintiff cannot recover for expenses incurred before entering into the contract in reliance upon obtaining the contract; as they could not have been within the contemplation of the parties.</p> <p>Same — Measure of Damages — Profits—Evidence. In such a case, loss of profits cannot be recovered on the mere statement of what the hogs cost, what they sold for, and what might have been obtained if the contract had not been breached, where it appears that the plaintiff could have obtained feed elsewhere the cost of which was not shown, and there was no showing of the cost or profit from feed obtained under the contract.</p>

<p>Principal and Agent — Wrongful Act of Agent — Liability of Principal. Where a gang of laborers, boarding on a co-operative plan, contracted for and received provisions and supplies, the membership of the gang changing from time to time, and the membership at the time the gang broke up contributed pro rata a sufficient sum to pay for all the supplies, paying the money over to an agent for that purpose, the same amounted to a ratification of the indebtedness by the then members of the gang; and renders them liable therefor, upon the default of their agent, who wrongfully failed to pay over the money contributed.</p>

, entered January 22, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages to land by the construction of a railroad bridge.

, entered January 22, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a rigging slinger in a logging camp.

<p>Appeal from a judgment of the superior court for King county, Main, J., entered September 16, 1911, upon a trial and conviction of polluting a stream.</p>

<p>Sales — Action for Price — Payment—Evidence—Sufficiency. In an action for a balance due from two partners for electrical equipment to be used in four city contracts, upon the allegation that the partnership had extended to all the contracts, one of the partners cannot escape liability by asserting that the balance was due on the first contract in which he was not interested, where it appears that he fully paid up the first contract, before anything was due on the other three; even if the seller afterwards agreed with him that the payments so made might be applied on the other three contracts provided he in writing guaranteed payment of the balance, which was done.</p> <p>Municipal Corporations — Public Work — Lien for Supplies Furnished Contractor. In an action for supplies sold, against city contractors and a bank as their assignee of all moneys due and unpaid on the contract and retained by the city to satisfy liens filed against the contractor’s bond, it is error to impress the remaining fund with a lien in favor of the plaintiff, as against the bank, where plaintiff had filed no lien against the same within the time required by law.</p>

<p>Appeal from a judgment of the superior court for King county, Holcomb, J., entered January 29, 1912, upon findings in favor of the plaintiff, in an action to cancel a tax deed.</p>

<p>Municipal Corporations — Public Work — Contracts — Performance or Breach — Extras—Evidence—Sufficiency. In an action against a city on a contract for laying a sewer, the plaintiff is not entitled to recover for extra work through a change of grade, requiring the relaying of pipe, where it appears that the pipe had to be relaid because out of alignment in violation of the contract, and the change of grade was at the contractor’s request and did not call for extra work under the plan under which he submitted his bid; especially where supplemental contracts waived all the extras contemplated by the parties at the time the work was done, and no claim for extras was made as required by a stipulation in the contract that such extras must be submitted previous to the final acceptance.</p> <p>Same. The fact that the city allowed a claim for extras for relaying part of the pipe, does not entitle the plaintiff to a claim for extras for laying the balance.</p> <p>Same — Claims of Laborers — Right to Balance Retained. As between an assignee of a contractor, and a surety company guaranteeing labor claims, under a city contract for public work providing that 70 per cent of the amount earned should be paid the contractor as the work progressed, and SO per cent retained by the city to secure the payment of laborers and materialmen, any balance due to the contractor on the completion of the work after deducting 30 per cent must be applied to discharge unpaid labor claims in excess of the 30 per cent retained by the city for their security, where the contractor agreed to pay all such claims, and that the city might withhold all payments until satisfied that all wages were paid, and the assignment recited that it was not valid against any claim for labor or materials.</p>

<p>Sales — Warranty — Construction — Words Used in Technical Sense — Evidence—Admissibility. Upon a sale of bottled grape juice to one experienced in the bottling business, under a guaranty to protect against any fermentation, evidence is admissible that sucb a guaranty was generally construed in the trade as a warranty that the juice would not ferment while in the sealed bottles nor for a reasonable time thereafter; both parties knowing that the juice would ferment within a short time after the bottles were opened.</p>

, entered March 30, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee of a city on a street fill.

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered January 20, 1912, dismissing an action for libel, on sustaining a demurrer to the complaint.</p>

, entered March 9, 1912, upon the verdict of a jury rendered in favor of the defendant, in an action for personal - injuries.

Application filed in the supreme court November IS, 1912, for a writ of mandamus to compel the superior court for Skagit county, Joiner, J., to modify an order for a change of venue.

Appeals from judgments of the superior court for Pierce county, Clifford, J., entered December 13, 1911, dismissing actions for injury to property, upon granting nonsuits.

, entered March 27, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malicious prosecution.

<p>Appeal — Decision—Remand. Upon reversing a case for error in admitting evidence wbicb goes only to tbe amount of tbe verdict and not to tbe right of recovery, and tbe proper amount can be determined from tbe record, a new trial will not be awarded, but tbe judgment will be modified, witb costs to appellant.</p>

, entered April 23, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages to real property.

, entered April 29, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action by a passenger on a boat for an assault and battery by an employee.

<p>Insurance — Indemnity Insurance — Policies — Construction — “Kind oe Trade or Business” — “Kind oe Work” — Employees Included. A policy of indemnity insurance giving an employer compensation for injuries to servants whose compensations are included in the schedule on which the premiums are based, liberally construed in favor of the insured, includes under the heads of the schedule “Kind of trade or business'’ and “Kind of Work” all who were engaged in the prosecution of the work at the specific places, and should not be restricted to the specific classes of artisans, as “ship builders,” “blacksmiths” etc.; and also includes employees of a power, heat and light department, operating the entire plant; also, timekeepers whose duties took them about the places described, and drivers who were working about the premises part of the time, where the policy expressly excepted only the “Pres., Vice-Pres., Secty., Treas., & Clerical force.”</p> <p>Interest — On Balance Due on Contract — -Recovery—Dispute as to Amount. Interest is recoverable on earned premiums on an indemnity policy, from the date the balance becomes due, although the legal basis for the recovery was a subject of controversy; since the amount was due on a specific contract for the payment of money and was determinable by computation.</p> <p>Costs — Prevailing Party — Separate Causes oe Action — Apportionment oe Costs. The plaintiff, as prevailing party, is entitled to costs, under Rem. & Bal. Code, § 476, although one of its three causes of action failed and defendant secured therein an offset against the amount due on the other causes of action; there being no statute authorizing apportionment of costs in such cases.</p>

<p>Forgery — Joint Prosecution — Acts and “Possession” oe Conspirators — Common Design. It is no defense to a joint prosecution for knowingly having in possession a forged instrument with intent to utter it, that the instrument was taken from the actual possession of only one of the conspirators, where there was abundant evidence that they were acting in concert with a common criminal design.</p> <p>Criminal Law — Appeal—Exceptions — Necessity. Instructions cannot be reviewed on appeal where no exceptions were taken, even where accused is defended by counsel appointed by the court.</p> <p>Same — Trial—Written Instructions — Waiver. A defendant in a felony case may waive the statutory requirement that the instructions to the jury be given in writing.</p> <p>Same — Sentence—Minimum Fixed by Statutes. An indeterminate sentence for a term of not less than ten years and not more than twenty years is beyond the power of the court where the maximum allowed was twenty years and the statute expressly limits the minimum term to “not less than six months nor more than five years.”</p> <p>Same — Appeal—Decision—Reduction oe Sentence. Where the trial court exceeds its power in imposing a sentence, the supreme court will not order a new trial, but will remand the case for the proper sentence.</p>

, entered February 6, 1912, upon a trial and conviction of editing printed matter tending to encourage disrespect for law.

Appeal by defendant from an order of the superior court for King county, Myers, J., entered May 21, 1912, adjudging defendant to be in contempt of court for failure to comply with an order for temporary alimony and suit money.

<p>Covenants — Quiet Enjoyment — Construction—Outstanding Lease — Relation—Escrows: Upon a sale of property under a written agreement to accept the premises subject to the “present tenancy,” rents to be adjusted as of the date of delivery of the deed, which was done, the grantee thereafter collecting the rents, an action for breach of covenant for peaceable possession and quiet enjoyment by reason of an outstanding lease cannot be maintained, it appearing "that the parties considered the tenancy and contracted with reference thereto.</p> <p>Same — Lease as Incumbrances — “Existing Tenancies” —Construction — Knowledge—Attornment. An action for breach of covenant of warranty against incumbrances by reason of an outstanding lease cannot be maintained where the grantee had knowledge of the lease, and there was an attornment and apportionment of the rent at the time of.the transfer.</p>

<p>Pood — Adulteration—Criminal Prosecution — Liability oe Agent or Manager — Intent—Knowledge. Under Rem. & Bal. Code, § 2513, providing a penalty for selling, or having in possession with intent to sell, milk below the standard fixed by law, regardless of guilty knowledge or criminal intent, the manager of a dairy corporation having general supervision of the mixing of the milk may be guilty of violation of the statute although he was not present when the milk left the dairy and had given instructions to keep it up to standard.</p> <p>Same — Criminal Prosecution — Conditions Precedent — Samples —Analysis—Statutes—Construction. A compliance with Rem. & Bal. Code, § 5478, which makes it the duty of the person collecting samples of milk for analysis to send the result of the analysis within ten days to the person from whom the sample was taken or to the person responsible for the condition of the milk, is not a condition precedent to the prosecution of a person for violating the pure milk law, in view of other provisions of the law, Id., § 5468, providing for the delivery of samples of the milk taken and that no evidence of the analysis .shall be given if such samples are not delivered on request, and § 5477, providing that a producer of milk is not liable unless the milk is taken upon his premises or while in his possession and a sealed sample thereof given to him.</p> <p>Trial — Instructions—Oral Instructions. Under Rem. & Bal. Code, § 339, requiring that instructions to the jury be given in writing, it is reversible error to give oral instructions over the objection of the appellant.</p>

<p>Evidence — Oral Evidence — Contract Not Expressed in Warehouse Receipt. Where a warehouse receipt was signed by only one of the parties and mailed to the owner of the goods, oral evidence is admissible to prove an oral agreement as to the place where the goods should be stored and that the receipt did not express the agreement.</p> <p>Bailment — Warehousemen—Special Contract — Breach — Waiver — Question for Jury. It is for the jury to determine whether a bailor’s failure to remove goods amounted to a waiver of a special agreement whereby a warehouseman agreed to store goods on the fourth floor of a building, where the bailor, observing them on the first floor, told the manager that the goods were not stored according to agreement, and protested that the first floor was not a good place to store them.</p>

, entered January 3, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee on a logging road through the derailment of a hand ear.

<p>Carriers — Fares — Franchise—Rates eor School Children— Construction. A franchise requiring a street railway to carry ‘ school children” at half fare applies only to those commonly referred to as school children, and not to students in universities or colleges or schools where a particular branch of learning is pursued; especially in view of our statutory distinctions between “school children” and “students” as found in Rem. & Bal. Code, §§ 4317, 4333, 4366, 4406, 4714.</p> <p>Same — Construction by Partees. A franchise ordinance requiring a street car company to carry school children at half fare having been construed by the street car company and the city to apply only to children attending public and private schools, the city cannot later contend that it should be construed to cover students at universities and colleges.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Main, J., entered July 22, 1912, upon findings in favor of one of the defendants, and against the others, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered May 6, 1911, upon findings in favor of the plaintiffs, in an action to foreclose a mortgage, after a trial on the merits.</p>

<p>Master and Servant — Injuries to Servant — Assumption or Risks — Assuming Dangerous Position. A tramway repairer assumes tbe risks where, for his own convenience, he rode on a loaded car not intended for passengers or employees to ride on; and he therefore cannot recover although the jury found that the engineer was negligent in the operation of the engine, his acts only endangering property and in no way affecting the safety of any place provided for employees to work.</p> <p>Same — Feixow Servants — Engineer and Track Worker on Tramway. An engineer operating a tramway engine and a tramway repairer, whose duty frequently took him to the engine house where he had every opportunity to observe the engineer in his work, are fellow servants, in regard to work in which the repairer was not under the control of the engineer, and with respect to matters not affecting the safety of the working plaee.</p> <p>Fuixerton, J., dissents.</p>

<p>Appeal from an order of the superior court for King county, Tallman, J., entered March 16, 1912, denying an application to vacate an order of dismissal and for leave to file an amended complaint.</p>

<p>Insurance — Cancellation of Policy — Return of Premiums— Agents’ Authority — Ratification — Presumption as to Policy. Where insurance agents cancelled all outstanding policies and sent each policy holder, as return premium, a pro rata amount figured on the policy and premium if it had run the full term, at the same time notifying the company, which ratified the cancellation and return of premiums to the extent of the short rate, the acts of the agent are ratified and the company cannot insist on a settlement with the agents based on a short rate basis; it being presumed, in the absence of anything to the contrary, that the policy could not he can-celled by the company without returning a pro rata of the unearned premiums. I</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered April 25, 1912, in favor of the defendant by direction of the court, in an action for damages.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered April 2, 1912, upon granting a non-suit, dismissing an action for personal injuries sustained in a collision with an automobile.</p>

<p>Appeal from a judgment of the superior court for King county, John S. Jurey, Esq., judge pro tempore, entered April 19, 1912, upon findings in favor of the plaintiff, in an action on contract, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 14, 1912, upon findings in favor of the defendants, in an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered May 24, 1912, dismissing an action in tort, on granting a nonsuit.</p>

<p>Street Railways — Injuries to Pedestrians — Contributory Negligence — Evidence—Sufficiency. A pedestrian, struck by a cable ear, is guilty of contributory negligence, as a matter of law, where it appears that lie started diagonally across a street, paying no attention to a street car, which, was in plain view and making considerable noise, nor to warning shouts; and he is not exonerated by the fact that he was slightly deaf, and from the country, and not used to street cars.</p> <p>Same — Negligence—Last Clear Chance — Evidence—Sufficiency. The evidence of a gripman that he could have stopped a cable car within five or six feet and in time to avoid an accident to a negligent pedestrian, if the brakes had not been defective, does not warrant a finding that the defendant had the “last clear chance” to avoid the accident, where it appears from other evidence that the car, a heavy cable car thirty feet long, going down grade at a rate of 14 feet per second, was stopped within fifteen or twenty feet, an emergency stop required the movement of two levers taking two or three seconds, and there was expert evidence that it could not have been stopped inside of from 30 to 60 feet, and the car had been operated all day and nothing found to be the matter with the brakes, since a “good stop” was shown; especially since a quicker stop might have endangered the passengers.</p>

<p>Appeal — -Decisions Reviewable — Amount in Controversy. The jurisdiction on appeal, as depending on the amount in controversy, is determined by the allegations of the complaint, not by the demand for judgment.</p> <p>Courts — Rules op Decisions — Stare Decisis. The maxim stare decisis cannot be evoked as to matters merely discussed in an opinion, but not involved as essential elements.</p> <p>Appeal — Decisions Reviewable — Original Amount in Controversy — Interest. The original amount in controversy, within the jurisdiction of the supreme court includes interest, when recoverable, on the principal sum demanded to the time of the commencement of the action, and not to the date of judgment.</p>

, entered March 29, 19ll, upon the verdict of a jury rendered in favor of the plaintiff for damages for an assault and battery.

<p>Sales — Rescission—False Representations. A sale of a cafeteria business will be rescinded for false representations to tbe effect tbat tbe business was being conducted at a profit, where it was tbe principal inducement leading to tbe sale and tbe purchaser bad no means of ascertaining its truth.</p> <p>Sales — Rescission—Restoration of Status. A rescission of a sale of a cafeteria business will not be denied for tbe reason tbat tbe purchaser discontinued tbe business and cannot restore it in tbe same condition as when received, where it was tendered back in substantially tbe same condition and inability to make full restitution was not tbe fault of tbe purchaser.</p> <p>Appeal — Preservation of Grounds — Objections. After a trial on tbe merits without objection, it cannot be urged on appeal tbat tbe action should have been tried at law as one for damages and not as one for equitable relief.</p>

<p>Motion to retax costs in the supreme court, filed March 9, 1912.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Carey, J., entered May 8, 1911, upon the verdict of a jury rendered in favor of the defendants by direction of the court, in an action of ejectment.</p>

<p>Divorce — Alimony—Support of Child — Jurisdiction to Modify Decree — Parties Outside State. Tbe court granting a divorce and awarding periodical alimony for tbe support of a child retains jurisdiction to increase tbe future allowances, as to both tbe persons and the subject-matter, although both parties have since left the state, on service of notice on tbe defendant and tbe attorneys of record, no original process being necessary.</p>

<p>Appeal from an order of the superior court for King county, Ronald, J., entered January 6, 1912, granting a new trial after the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered February 26, 1912, dismissing an action on contract, after a trial to the court.</p>

<p>Highways — Abandonment—Failure to Open — Use by Railway. A street is opened for public use to such an extent as to prevent its abandonment by nonuser, as provided in Rem. & Bal. Code, § 5673, where an electric railroad company, by virtue of a right of way deed, went upon it and set its location stakes and constructed its railway line in the street.</p> <p>Same — Limitation. Under Rem. & Bal. Code, § 5673, providing for the vacation of any county road which remains unopened for public use for five years after its authorization as a public highway, the five-year period begins to run from the date of the filing of a dedicated plat, and not from the date of its execution.</p> <p>■Same — Nature or Use. A county road is opened for public use, within the meaning of Rem. & Bal. Code, § 5673, relating to abandonment by nonuser, where the line of travel generally followed the dedicated way, although frequently in order to avoid hills and ravines, it departed from the road for short distances and again entered it.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered April 18, 1912, dismissing an action to cancel tax certificates, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for Jefferson county, Still, J., entered January 6, 1912, granting a divorce, and from an order entered March 7, 1912, denying a motion to vacate the judgment and grant a new trial</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered February 19, 1912, in favor of the plaintiff upon an award by arbitrators, in an action on contract.</p>

<p>Criminal Law — Appeal—Harmless Error. It is not prejudicial error to refuse to strike from an information the name of defendant’s confederate and his aliases, where the matter objected to was heard at the trial without objection, although the confederate was dead.</p> <p>Homicide — Evidence of Other Crimes — Motive. As evidence of another crime is admissible when it tends to establish motive, possession by defendant of a burglar’s jimmy may he shown in a prosecution for manslaughter, the defendant having shot and killed an officer when commanded to halt.</p>

<p>Judgment — Conclusiveness—Bar—Matters Concluded. Where disputes arose between parties to a contract, and one of them brought an action against the other for injunctive relief, damages, and general relief, the judgment is res judicata and a bar to another action upon the contract as to all matters in dispute that arose prior to the commencement of the first action.</p> <p>Costs — Expenses oe Litigation — Recovery—Subsequent Action. A successful litigant cannot maintain a subsequent action to recover from his losing adversary the costs and expenses of the litigation, but must resort to his statutory right to have items thereof taxed as costs in the first action.</p>

<p>Appeal — Review—Harmless Eeeor. In an action tried to the court, it is not material whether the court used the proper measure of damages, where there was ample evidence to warrant the court’s finding of damages.</p> <p>Fish — Fishery Rights — Locations—Description. A map for a fishing location sufficiently describes the location, within Rem. & Bal. Code, § 5214, where it fixes the upstream limit so that a person would have no trouble in locating it; and it is not necessary to describe the downstream limit, which the law fixes 300 feet distant.</p>

, entered January 17, 1912, 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 February 10, 1912, upon the verdict of a jury rendered in favor of the plaintiff for $10,250, for personal injuries sustained in a collision with a street car.

<p>Appeal — Decision—Reversal and Remand — Mandamus to Loweb Court. Where, in condemnation proceedings, the judgment awarded to a defendant a sum deposited in court, and upon appeal by the other defendants the judgment was reversed and the cause remanded with directions to enter an order directing payment of the money to the other defendants, the same is a final determination of the merits, and the lower court cannot refuse to enter the order on the ground of want of jurisdiction, and because the money had been withdrawn by order of . court prior to pendency of the appeal; and mandamus will issue to compel the lower court to enter the order as directed.</p> <p>Eminent Domain — Compensation—Conflicting Claims to Fund in Court — Proceedings—Appeal. Rem. & Bal. Code, § 898, providing that, in the event of conflicting claims to property condemned, the court may direct an action to be brought to determine the same, is not exclusive where the fund had been paid into court; and where all the parties appeared as upon an intervention and there was a trial on the merits, the court had jurisdiction to inquire into all the claims, and having done so, the supreme court on appeal can direct the proper judgment to be entered.</p>

<p>Indemnity — Contract to Furnish Appliances — Defective Appliances — Damages Paid. Where a transportation company was compelled to compensate employees injured by reason of a defective hoisting appliance belonging to a shipper and which the shipper had supplied under a contract with the transportation company to furnish the same, the transportation company may recover over from the shipper for the sums paid out, if it received and used the appliances without notice of the defect.</p> <p>Same — Action Against Indemnitor — Evidence—Question for Jury. In such a case, whether the transportation company had notice .of the defect, or acquiesced in the use of the defective appliance, is for the jury, where it appears that it made use of the same only at intervals of two to six weeks apart, that some weeks previous it had notice of a worn and defective condition of a tripping device which caused danger by premature dumping, but on the morning in question it had been used several hours without accident and it was at all times in the possession and control of the shipper.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 18, 191$, upon the verdict of a jury rendered1 in favor of the plaintiff, in an action on a policy of accident insurance.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered February 8, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger on a street car.</p>

<p>Courts — Review or Orders — Vacation or Judgment — New Trial —Second Application. After an alternative order refusing to vacate a judgment and grant a new trial unless costs are paid bas become final and effective by defendants’ failure to pay the costs within the time fixed, the trial court is without jurisdiction to entertain a second motion to vacate the judgment.</p> <p>New Tbial — Second Application — Motion to Extend Time. Where an order for a new trial is made conditional upon payment of costs within a limited time, a motion to extend the time made after default is too late, as ii would he in effect granting permission to interpose a second motion for a new trial.</p> <p>Judgment — Vacation—Grounds. A motion to vacate a judgment, entered on the nonappearance of the defendant and his counsel at the trial, is properly denied, where it appears that both defendant and his attorney were neglectful, the defendant going east for several weeks without making inquiry about the case or keeping in touch with his attorney so that he did not get notice of the time set and the attorney’s withdrawal from the case until after the trial.</p>

<p>Appeal by defendant from a judgment of the superior court for Klickitat county, McKenney, J., entered December 29, 1911, awarding damages in eminent domain proceedings, after a trial to the court.</p>

Application filed in the supreme court November 25, 1912, for a writ of prohibition against the superior court for Pierce county, Easterday, J., to prevent enforcement of an order to deliver the stenographer’s notes pending an appeal.

<p>Physicians and Surgeons — Malpractice—-Negligence—Evidence —Question for Jury. Whether surgeons were negligent in failing to remove all of the packing and to stop a hemorrhage, following a surgical operation on plaintiff’s nose, is for the jury, where there was evidence tending to show that they failed to do so, and that a speedy recovery followed on its removal by another surgeon.</p> <p>Same — Defenses—Contributory Negligence. Where a patient has been improperly treated, he may quit the treatment at any time, and it is no defense to an action for malpractice that the patient did not return for further treatment, when he found he was not getting along as he should, notwithstanding it was highly probable that had he done so, the treatment would have been changed and a cure effected.</p> <p>Trial — Instructions—Evidence—Pleadings and Issues. . In an action for malpractice, instructions on the theory that the defendants treated the plaintiff as specialists, are proper where the undisputed evidence showed that to be the case, notwithstanding the complaint alleged the cause of action against them as general practitioners.</p> <p>Appeal — -Review—Harmless Error — Instructions. In an action for malpractice, an instruction on the subject of the degree of care required, referring to it as such care and skill as the plaintiff “should expect,” or as the public had a “right to expect” is not prejudicial error, where in the same instruction defendants’ undertaking was specifically stated to be to use “reasonable care and skill,” and also later instructions stated the rule in the language requested by the appellants.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered February 3, 1912, upon findings in favor of the plaintiff, in an action for damages from fraud in a sale of stock, after a trial to the court.</p>

<p>Appeal from an order of the superior court for Okanogan county, Pendergast, J., entered March 6, 1912, striking parts of defendant’s cross-complaint, after a hearing before the court.</p>

, entered January 2, 1912, in favor of the defendants, in an action for an accounting by testamentary trustees, and for other equitable relief.

, entered March 4, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court, in an action in tort.

<p>Appeal by plaintiff from a judgment of the superior court for Franklin county, Holcomb, J., entered' January 4, 1912, upon the verdict of a jury rendered in favor of the defendants on a counterclaim, in an action for specific performance.</p>

<p>Appeal from an order of the superior court for Yakima county, Preble, J., entered January 22, 1912, granting a new trial, after findings in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Yakey, J., entered December 9, 1911, upon findings in favor of the plaintiffs, in an action on contract, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered February 2, 1912, upon withdrawing the case from the jury, dismissing an action for personal injuries sustained by an employee in a sawmill.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered February 8, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger on a street car.</p>

, entered January 24, 1912, upon the verdict of a jury rendered in favor of the plaintiffs for $10,000, for personal injuries sustained by a passenger in a street railway collision.

<p>Appeal from a judgment of the superior court for Jefferson county, Still, J., entered February 5, 1912, dismissing an action to quiet title and for partition, upon sustaining a demurrer to the complaint.</p>

<p>Forgery — Uttering — Guilty Knowledge — Evidence — Sufficiency. In a prosecution for forgery, there was sufficient evidence that defendant had a guilty knowledge of the spurious character of the papers, a note and mortgage, and participated in their utterance, where it appears that he took the papers to be executed by a spurious grantor, made affidavit that he knew the family to aid in closing the loan, aided in cashing the checks, retaining commissions, and denied acquaintance with one of the guilty parties whom he had known for a long time.</p> <p>Witnesses — Cross-Examination—Criminal Law — Evidence of Other Acts — Admissibility. In a prosecution for forgery, where accused had sworn in his own behalf and detailed a state of facts favorable to himself, stating that he relied on the statements of one H. and that his desk had been rifled and papers taken away, it is proper on cross-examination', as testing his credit and impeaching his testimony, to ask if he and H. had not been engaged in passing off other spurious papers on the public, and if his confederates had not rifled his desk in order to do away with the papers.</p> <p>Criminal Law — Trial—Cross-Examination of Defendant— Scope. Where accused offers himself as a witness, he submits himself to cross-examination to impair his credit, the same as any other witness.</p> <p>Criminal Law — Trial—Argument to Jury — Misconduct of Counsel. It is not misconduct for a prosecuting attorney to address argumentative remarks to the jury if they are free from expressions of individual opinion as to the defendant’s guilt independent of the testimony in the case.</p> <p>Appeal — Preservation of Grounds — Exceptions to Instructions —Manner and Time of Taking. Exceptions to instructions and to the refusal to give instructions may not be merely filed, but must be called to the attention of the judge and noted in the minutes as required by Rem. & Bal. Code, § 384, although they may be taken at any time before the hearing of a motion for a new trial.</p> <p>Evidence — Documentary Evidence — Lost Papers — Copies—Identification — Sufficiency. The loss of an original affidavit is sufficiently shown to admit evidence of a copy, which several witnesses testified was a true copy, where it appears that the original was filed as an exhibit at a former trial and officials in whose custody it should be testified that search had been made for it and it could not be found.</p>

<p>Appeal — Record—Statement of Pacts. In the absence of the evidence, brought up either by a bill of exceptions or statement of facts, it will be presumed that the verdict was properly returned.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered February 8, 1912, dismissing an action for fraud, upon granting a nonsuit.</p>

, entered April 4, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in alighting from a street car.

, entered February 3, 1912, upon findings in favor of the plaintiff, in an action on contract, after a trial to the court.

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered January 12, 1912, upon agreed facts, dismissing an action to foreclose a mechanics’ lien.</p>

, entered March 26, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by a pedestrian struck by a street car.

<p>Certiorari to review a judgment of the superior court for King county, Albertson, J., entered November £9, 191£, dismissing an action for a mandamus to secure a certificate of election.</p>

<p>Certiorari to review an order of the superior court for King county, Everett Smith, J., entered November 18, 1912, fixing the amount of a supersedeas bond.</p>

<p>Contracts — Essentials—Meeting of Minds — Contract to Form Corporation — Evidence—Sufficiency. Recovery cannot be had for breach of a contract to form a corporation, where none of the vital essentials for the organization of the corporation, enumerated by statute, had been agreed upon by the parties, as there was no meeting of minds upon all the essentials of the contemplated contract; and especially where there was no evidence of breach of the contract other than the fact that they did not incorporate.</p>

<p>Certiorari — When Lies — Adequacy of Remedy by Appeal — Election Contest. The delay incident to an appeal in an election contest does not authorize a review by certiorari, or render the remedy by appeal inadequate, by reason of the fact that the term of office begins, and the period of six months for preserving the ballots expires before the appeal can be heard; since the ballots can he preserved as other documentary evidence offered and rejected at the trial; and especially in view of the statute providing for appeals in election contests (Mount, C. J., and Fullerton, J., dissenting).</p>

<p>Guaranty — Consideration—Guaranteeing a Voidable Lease. Since an unacknowledged lease for a term exceeding one year, where the tenant takes possession, is good as a lease from month to month until terminated by the statutory notice, it constitutes a sufficient consideration for the obligation of sureties in a bond given by the tenant conditioned that he perform all the covenants, agreements and obligations contained in the lease and save the lessor harmless from all loss by reason of its execution; and the bond guarantees the performance of the terms of the lease as written, since it was not an immoral or illegal contract or against public policy.</p> <p>Guaranty — Liability of Surety. Sureties in a bond, guaranteeing the performance of a contract which is not illegal or immoral, are bound by their guaranty although the contract cannot be enforced against the principal.</p> <p>Frauds, Statute of. The statute of frauds being personal to the debtor, cannot be taken advantage of by sureties who guaranteed the performance of a lease which was voidable under the statute of frauds.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Black, J., entered October 31, 1911, upon findings in favor of the plaintiff, in an action in tort, after a trial to the court.</p>

, entered December 11,1911, upon findings in favor of the plaintiff, in an action on contract, after a trial to the court.

, entered February 5, 1912, upon the verdict of a jury rendered in favor of the'plaintiifs, in an action for personal inj uries sustained by a passenger on a street car.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered April 6, 1912, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, in an action on contract.</p>

Appeal by defendant from an order of the superior court for Yakima county, Grady, J., entered December 20, 1911, granting plaintiff a new trial on the ground of inadequate damages, after a verdict of the jury rendered in favor of the plaintiff, in an action for injuries sustained in a passenger elevator in a department store.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 16,1912, upon sustaining a demurrer to the complaint, dismissing an action to quiet title.</p>

<p>Appeal from’ a judgment of the superior court for Clallam county, Still, J., entered January 25, 1912, dismissing an action to set aside a tax foreclosure, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered March 27, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a common laborer employed in excavation.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered April 30,1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for King c.ounty, Yakey, J., entered December 7, 1911, upon findings in favor of the plaintiff, in an action on contract, after a trial to the court.</p>

, entered January 29, 1912, dismissing an action for the wrongful death of a coal miner, upon plaintiff’s refusing to make an election.

<p>Negligence — Dangerous Premises — Hotels —Darkened Stairway — Contributory Negligence — Assumption of Risks. A guest in a hotel is not guilty of contributory negligence per se and does not assume the risks, in the mere use of a darkened stairway, made necessary because the elevator was not in commission, where there was no defect in the construction of the building, which was of modern construction, but merely a neglect on the part of the owner to use lights which had been provided.</p>

<p>Trespass — Common Inclosure — Throwing Open Without Consent — Liability for Trespassing Stock. Where a railroad acquired a right of way through inclosed lands, and took down the fences across its right of way, which it failed to fence up, thereby allowing stock to enter and trespass upon the lands formerly inclosed, it is liable for the damages, on the principle that an owner having an inclosure common with another cannot throw the close open without the other’s consent; since no man shall use his own property in such manner as to injure that of another (Parker and Mount, JJ., dissenting).</p>

, entered March 2, 1912, upon findings in favor of the defendants, for the value of improvements placed on the property, in an action of ejectment tried to the court.

, entered July 13, 1912, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by an employee in a logging camp.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered December 19, 1911, dismissing an action on contract, after a trial to the court.</p>

<p>Deeds — Description—Construction—Whole Interest or Moiety. Where a grantor conveyed “his one-half undivided interest” in four lots “and” two other lots, in which last two he held the whole title, without specifying whether he intended to convey the whole or only a half interest in the last two lots, the deed must be construed to convey only a half interest therein, as against a subsequent dona fide purchaser.</p> <p>Vendor and Purchaser — Bona Fide Purchaser — Constructive Notice — Payment of Taxes by Joint Owner. Payment of taxes by a grantee in a deed which was ambiguous as to whether it conveyed a half or the whole interest, is not a circumstance pointing to a construction of the deed of which a subsequent dona fide purchaser need take notice; especially in view of the fact that payment of taxes by a joint owner is no evidence of claim of title.</p> <p>Deeds — Ambiguity—Construction Against Grantor. A strict construction of a deed against a grantor will not be indulged where the description was not so ambiguous as to call for extrinsic aid, and other rules did not fail, and where no possession was taken under the deed.</p> <p>Executors and Administrators — Sales—Caveat Emptor. The rule of caveat emptor applied to administrator’s sales where no rights of persons under disability are involved, applies only to want of power to sell, and does not prevent reliance on the title of the deceased at the time of bis death, as disclosed by the records.</p> <p>Gose, J., dissents.-</p>

, entered January 5, 1912, dismissing a writ of certiorari to review a judgment of a police court, after a hearing before the court.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered March 30, 1912, upon findings favorable to the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Douglas county, Steiner, J., entered February 19, 1912, 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 by defendant from a judgment of the superior court for King county, Albertson, J., entered January 16, 1912, dismissing without prejudice an action to foreclose a mortgage, in which the defendant sought reformation and cancellation of the mortgage, after a trial on the merits to the court.

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered January 22, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a contractor’s bond.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered October 21, 1911, upon granting a nonsuit, dismissing an action for wrongful death.</p>

, entered March 18, 1912, upon sustaining a challenge to the sufficiency of plaintiff’s evidence, dismissing an action for personal injuries sustained by a pedestrian struck by a street car.

<p>Masteb and Servant — Injury to Servant — Duty to Warn — Unknown Danger — Assumed Risks. Where an experienced man in clearing land fastened a chain to a log to be dragged by a team, without knowing that the end of the log was attached to the ground by the roots, causing the top to swing around and strike him while he was standing in the sweep of the top when the team started, the master owed no duty to warn him of the starting of the team; since he had an equal or better opportunity to know of the danger, which makes it one of the assumed risks of the business.</p>

, entered July 13, 1912, in favor of the defendants, dismissing an action to enjoin a city from installing a water works system for irrigation and domestic purposes, after a trial on the merits before the court.

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered December 11, 1911, upon the verdict of a jury awarding damages in condemnation proceedings.</p>

, entered October 30, 1911, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to enjoin the maintenance and use of a railway track.

, entered December 9, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for contribution.

, entered January 6, 1912, upon sustaining demurrers to the complaint, dismissing an action for the appointment of a receiver of an insolvent corporation.

<p>Appeal from a judgment of the superior court for Okanogan county, Pendergast, J., entered January 24, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for conversion.</p>

<p>Appeal from a judgment of the superior court for Ferry county, Bell, J., entered May 17, 1912, upon a trial and conviction of embezzlement.</p>

, entered February IS, 1912, dismissing an action to enforce a claim against the estate of a decedent, after a trial before the court.

, entered March 9, 1912, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for personal injuries sustained through the collision of a wagon and a street car.

, entered March 28, 1911, upon granting a nonsuit, after a trial before the court and a jury, in an action for wrongful death.

Rice, J., entered January 22, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a logging camp.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered April 11, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages to real property.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered February 24, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 31, 1912, upon the verdict of a jury rendered in favor of the defendants, in an action on contract.</p>

<p>Application filed in the supreme court December 20, 1912, for a writ of mandate to secure a certificate of election.</p>

<p>Application filed in the supreme court December 20, 1912, for a writ of mandate to secure a certificate of election.</p>

, entered January 17, 1912, upon findings of the court and a jury in favor of the defendants, in an action for equitable relief.