Volume 72 — Washington Reports

<p>Ap^ 'il from a judgment of the superior court for King county, Myers, J., entered May 7, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through an explosion in a coal mine.</p>

, entered January 80, 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 railroad while repairing box cars.

, entered March 13, 1912, upon findings in favor of the defendant, after a trial on the merits before the court, in an action on contract.

, entered April 6, 1912, in favor of the plaintiff, upon sustaining a demurrer to the answer, in an action to enjoin the payment of warrants issued by a school district.

<p>Physicians and Surgeons — Malpractice—Negligence—Evidence —Question for Jury. In an action for malpractice the negligence of the defendant is for the jury, where it appears that the defendant treated plaintiff for severe injuries sustained by a fall which included injury- to his shoulder, that the shoulder was not then dislocated, but the arm not improving, was subjected to manipulation by the defendant, which dislocated the shoulder, discovered by other physicians, and which required an- operation and resulted in a shortening of the arm.</p> <p>Evidence — Expert Evidence — Opinion as to Medical Treatment —Hypothetical Questions. In an action for malpractice, expert medical witnesses may express opinions, based upon a hypothetical question containing a fair summary of the facts shown by plaintiff’s evidence, as to whether the treatment given plaintiff was such as an ordinary skillful physician in that community would have used for plaintiff’s injury.</p> <p>Trial — Instructions—Written 'Instructions — Waiver — Exceptions — Time for Taking. Where, in addition to written instructions, an oral explanation was requested and given, without objection or exception at the time, a written exception filed later on the ground that the same was not reduced to writing and given to the jury, comes too late; since the statute authorizing exceptions to instructions at any time before motion for new trial relates to their sufficiency as matter of law, and not to the manner in which they are given, and since the statute requiring the instructions to be given in writing may be waived.</p> <p>Physicians and Surgeons — Maereactice—Excessive Verdict. A verdict for malpractice is excessive, where it indicates that the jury considered plaintiff’s entire loss, through a fall for which he was treated, instead of merely the consequences of the doctor’s negligence.</p>

<p>Appeal — Bbiees—Failure to File — Dismissal. Prejudice will be presumed, and an appeal dismissed, where there has been a delay of more than fifteen months in filing briefs.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered April 13, 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 Thurs-ton county, Yakey, J., entered March 26, 1912, in favor of the plaintiff, confirming a sale on execution, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheets, J., entered April 6, 1912, upon a trial and conviction of wilfully neglecting and refusing to provide for the support and maintenance of a minor child.</p>

entered January 11, 1912, reducing an assessment on a leasehold, upon review on certiorari of the proceedings of the board of equalization.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered April 24, 1912, in favor of the plaintiff, after a trial on the merits before the court, in an action to declare a trust.</p>

<p>Municipal Corporations — Public Improvements — Proceedings— Petition — Alteration—Evidence—Sufficiency. The evidence is insufficient to show that a petition for a street improvement had been changed after it was signed, where the testimony to that effect of some of the signers was’indistinct and uncertain, and was contradicted by the person who circulated the petition and inconsistent with the ordinances, specifications, contract and all the proceedings, and no objection was made until the contract was substantially completed.</p> <p>Same — Performance of Contract — Acceptance—Conclusiveness. Where a contract for public work has been substantially complied with, the decision to that effect by the board of public works and city engineer, vested with power to determine all questions relating to the performance of the contract, is final and conclusive, in the absence of fraud.</p>

<p>Cross-appeals from a judgment of the superior court for Okanogan county, Neal, J., entered July 14,1911, upon findings.in favor of the defendants, after a trial on the merits before the court without a jury, in an action to quiet title and to enjoin a trespass.</p>

, entered January 10, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a collision with an automobile.

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered April 1, 1912, in favor of the defendant upon the pleadings, in an action to foreclose a mortgage.</p>

<p>Appeal from a judgment of the. superior court for Spokane county, Huneke, J., entered February 27, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury.</p>

, entered March 25, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal inj uries sustained by a passenger on a railway train.

, entered October 14, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to enjoin the issuance and sale of municipal bonds.

<p>Bridges — Injuries—Duty to Repair — Municipal Corporations— Streets. A city owes the duty to keep its bridge in a reasonably safe condition for travel, and is liable to a traveler who is injured without neglect on her part by reason of an unsafe condition of which the city, in the exercise of reasonable care, had, or ought to have had, knowledge.</p> <p>Husband and Wipe — Injuries to Wipe — Damages—Loss op Services. In an action by a husband and wife for personal injuries sustained by the wife, the loss by the husband of the wife’s services is a proper element of damages.</p> <p>Trial — Instructions—Requests. Want of more specific instructions on a subject cannot be objected to in the absence of a request therefor.</p> <p>Damages — Aggravation op Infirmity — Trial—Issues and Proof —Instructions. Although the plaintiffs, in a personal injury case, contended that the injured party was sound in body prior to the injury, the court may, on evidence tending to show a bodily infirmity, frame its own instructions so as to permit the jury to award damages for aggravation of a bodily infirmity.</p> <p>Trial — Instructions—Request. Error cannot be predicated on failure to instruct upon the subject of contributory negligence, in the absence of any request therefor.</p> <p>Damages — Personae Injuries — Excessive Verdict. A verdict for $500 damages from a fall is supported by evidence that the plaintiff did ordinary housework prior to the injury, besides milking cows and caring for swine, and afterwards was completely incapacitated and suffered a prolapsus of the uterus.</p>

<p>Highways — Establishment—Prescription — Evidence — Sufficiency. A sixty-foot strip of land, petitioned for as a county road in 1873, is not established as a highway by prescription, where its use as a highway was begun in 1895, without record authority, and was interrupted in 1904 by placing fences with gates across it and posting notices declaring it to be private property; since the use was not uninterrupted and continuous for ten years.</p> <p>Estoppel — By Recobd — Highways—Petition to Vacate. A petition to vacate a portion of a highway does not estop the signer from asserting title thereto, on denial of the petition, where the necessary elements of an estoppel are not present.</p>

<p>Appear — Record—Affidavits. Error in recalling the jury and giving additional instructions cannot be shown by affidavits, nor reviewed in the absence of a bill of exceptions or statement of facts.</p>

<p>Contracts — Construction — Architect’s Contract — Parol Evidence to Explain Writing. A contract employing an architect to prepare plans for a courthouse on a percentage basis in the event of the building going ahead at some future time, and for the payment of $1,000 in case the contract for the “building” should not be lfet, is plain and unambiguous, and the county is not liable in excess of $1,000 if a building is not erected on the plans prepared; hence parol evidence is inadmissible to explain the contract.</p> <p>Same — Evidence—Materiality. In such a case, evidence that the county had not abandoned its purpose to construct a courthouse is immaterial.</p>

<p>Juey — Competency—Bias-Challenge—Evidence — Sufficiency. The fact that a juror considered the arrest of the accused’ as a “suspicious circumstance,” does not subject him to a challenge for actual bias, where it appears that he meant that there were circumstances justifying the officers, in their opinion, in making the arrest, and that he realized a man could be arrested without being guilty, and would not convict unless the state proved his guilt beyond a reasonable doubt.</p> <p>Criminal Law — Appeal—Harmless Error. Statements of counsel in argument are not ground for reversal where they were not prejudicial.</p> <p>Criminal Law — Trial—Misconduct of Counsel. Error cannot be predicated on improper conduct of counsel for the state in disclosing a picture of the accused while an inmate of an eastern prison, where it does not appear that any of the jurors saw it or had any intimation of what it was.</p>

<p>Indictment and Information — Larceny—By Bunco Game — Sufficiency. Under Rem. & Bal. Code, § 2601, subd. 2, providing that every person who with intent to deprive the owner of any property by any trick, device, bunco game or fortune telling . . . steals such property and shall be guilty of larceny, an information is sufficient if, rejecting additional matter as surplusage, enough remains to charge the offense in the language of the statute, in the absence of any motion to strike or make more definite, even though it did not describe any trick, fraud or device.</p> <p>Larceny — -By Trick or “Bunco Game” — Evidence—Sufficiency. A conviction of grand larceny, by means of a trick, device or “bunco game,” under Rem. & Bal. Code, § 2601, subd. 2, is sustained, although the game played was an innocent game of skill, where it appears that the prosecuting witness was induced by three confederates to engage in a game of boccie with a reputed stranger as an adversary, who was skilled in the game, that be was allowed to win a few games, bis measure taken, and then induced to play for $3,000, the confederates pretending to contribute $5,000 towards a pretended $8,000 stake, and that they never intended to allow him a chance to win, but stole and divided up bis $3,000 before the game was over; any game, whether innocent or not, being a “bunco game” if it is the design and conduct of those using it to give it that character.</p>

, entered January 15 and 29, 1912, adjudging the defendant to be in default, and directing the specific performance of a contract.

<p>Mechanics’ Liens — Sale and Delivery of Materials — Evidence —Sufficiency. A finding that materials for a building were furnished to the contractor as an independent contractor, are sustained where both contractor and owner testified that such relation was fully disclosed, and they were corroborated by the bills sent out with the material.</p> <p>Same — Materials—Duplicate Statements — Necessity. It is not a compliance with Rem. & Bal. Code, § 1133, requiring a person furnishing materials to a contractor for the construction of a building to mail or deliver duplicate statements to the owner of all such materials as a condition precedent to a mechanics’ lien, for the driver of the wagon to deliver to the person on the grounds receiving the material duplicate statements of the contents of the loads, one of which was to be signed and returned as evidence of the delivery.</p> <p>Same — Waiver. In such a case, the owner does not waive the statute by reason of the fact that, when one of the first loads was delivered, he declined to accept or sign the driver’s statements or receipts, but referred him to the contractor, none of the parties treating such receipts as the notices contemplated by the statute.</p> <p>Same. Such statute is not waived by the fact that the owner had actual notice of the delivery of the material, and frequently inspected it, and caused part of it to be rejected.</p>

, entered April 1, 1912, in favor of the plaintiff, upon sustaining a demurrer to the answer, in an action on promissory notes.

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered May 18, 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>

<p>Intoxicating Liquors — Local Option — Elections —■ Contests— Review — Jurisdiction—Certiorari. In view of Rem. & Bal. Code, § 6313, providing for contesting the validity of local option elections and conferring upon the superior court final jurisdiction to determine the merits, a judgment of the superior court dismissing an action to declare a local option election null and void cannot be reviewed on the merits in the supreme court by writ of certiorari.</p> <p>Same — Contest or Election — Courts—Jurisdiction. As a local option election affects the public and not private interests, and determination of contests belongs to the political rather than the judicial branch of the government, the legislature has the power to confer final jurisdiction of election contests upon the superior court, notwithstanding the constitutional provision vesting in the supreme court the power to issue writs of review.</p>

, entered April 10, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a longshoreman engaged in loading a vessel.

<p>Criminal Law — Trial—Right to Speedt Trial — Statutes-—Construction. Rem. & Bal. Code, §2312, providing for tbe dismissal of a criminal charge if the accused be not brought to trial within 60 days after the indictment found or information filed, is satisfied if his first trial is had within such time, and does not require that, after appeal and reversal of a judgment of conviction, a second trial shall be had within sixty days after the remittitur has gone down to the lower court.</p> <p>. Same — Waiver of Right. The right to a speedy trial, within Const., art. 1, § 22, and Rem. & Bal. Code, § 2312, providing for the dismissal of a criminal charge if the accused be not brought to trial within 60 days after indictment found or information filed, unless good cause is shown for the delay, is waived by failure to ask for a trial and acquiescence in the delay until the case has been set for trial upon the request of the state, where the state did not act arbitrarily and had a plausible excuse for the delay.</p>

, entered May 29, 1912, upon findings in favor of the defendants, in an action on contract, denying the liability of the defendants as partners, after a trial to the court.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 11, 1912, upon findings in favor of the plaintiff, in an action on contract tried to the court.</p>

, entered March 9, 1912, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a mortgage.

, entered September 25, 1911, upon a trial and conviction of selling intoxicating liquors in violation of the local option law.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered February 21, 1912, dismissing an action for injunctive relief, upon sustaining a demurrer to the complaint.</p>

<p>Carriers — Injury to Passengers — Actions — Instructions—Assumption of Facts. An instruction to the effect that, if the jury find that a passenger was notified that a car was going to the barn and passengers would not be carried, it was the duty of the passenger to get off and of the company “to keep the car standing still,” is not an unlawful comment on the facts in that it assumes that the car was standing, a disputed question in issue, where the instructions, construed as a whole, merely meant that it was the duty to keep the car motionless while the passenger was getting off.</p> <p>Same — Instructions—Duty of Passenger. An instruction that it was the duty of a passenger to “immediately alight” upon being informed that the car did not carry passengers and was going to the barn, is not erroneous in that it was her duty to wait until the car stopped.</p> <p>Damages — Personal Injuries — Future Damages — Instructions. An instruction, in an action for personal injuries, that plaintiff was entitled to recover “further expense which may happen in the future by reason of the injuries received” is not prejudicially erroneous, where other instructions were given plainly telling the jury what results they could consider in that connection.</p> <p>Trial — Instructions Already Given. It is not error to refuse a requested instruction that is covered in other language in the general charge.</p> <p>Carriers — Who are Passengers. One who boards a street car stopping at a usual stopping place, intending to pay her fare, is a passenger until she safely alights therefrom, although the car was on the way to the barn and she was notified to get off.</p>

, entered February 23, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through contact with an electric current.

<p>Municipal Corporations — Sewers—Damages From Obstruction —Negligence. A city is not liable for damages to property through the obstruction of a sewer unless negligence on its part be proven.</p> <p>Same — Duty of Inspection. A city owes the duty of reasonable inspection of its sewers, and its liability for damages to property by reason of obstructions does not depend upon notice to it by the property owner.</p> <p>Samp — Negligence—Evidence—Sufficiency. The fact thait a city sewer became obstructed, and overflowed and caused damage to property, and that there existed no extraordinary conditions such as floods or freshets, establishes a prima facie case of negligence against the city, and casts the burden on it of showing that it had exercised ordinary care in performing its duty of inspection.</p>

<p>Appeal from a judgment of the superior court for Mason county, Mitchell, J., entered May 8, 1912, upon findings in favor of the plaintiffs, in an action to restrain trespass.</p>

<p>Street Railroads — Accident at Crossing — Collision with Automobile — Contributory Negligence of Driver — Evidence—Sufficiency. A chauffeur, whose car was hit by an electric car at a city crossing, as he started to cross the tracks behind another electric car discharging passengers on a parallel track, is guilty of contributory negligence, precluding any recovery, where his view on approaching the crossing was unobstructed for a distance of eight blocks, and he could have seen the approaching car if he had looked for it, but he failed to do so when he had the opportunity, and undertook to cross the track from behind the standing car where bis view was. obstructed without having observed the other ear.</p>

<p>Evidence — Lost Writing — Parol Evidence. Parol testimony to prove a written assignment of an account which, had been lost is admissible, where it appears that plaintiffs claimed through a written assignment from a copartnership, that the assignment in question had theretofore been made to the copartnership upon a change in the firm membership, and that three years had elapsed since' the first assignment had been made.</p>

, entered April 27, 1912, upon findings in favor of the plaintiff, in an action for personal injuries sustained- by an operator of a planer, after a trial to the court.

, entered June 26, 1912, directing a receiver’s sale of the assets of an insolvent company, upon disallowing petitioner’s claim against the insolvent.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered June 7, 1912, ordering a substitution of attorneys and refusing to order the return of a retainer.</p>

<p>Damages — -Personal Injuries — Aggravation op Conditions — Issues — Instructions. In an action for personal injuries in which the plaintiff alleged, and her evidence tended to prove, that she “was a strong, able-bodied woman prior to the accident,” which caused appendicitis and a retroverted womb, and necessitated surgical operations, and in which the sole defense was that, prior to the accident, she had appendicitis and retroverted womb, which were in no manner caused or affected by the accident, plaintiff was not entitled to an instruction that she could recover for any aggravation of a diseased condition known to her prior to the accident, since it was outside of the issues made by the pleadings and proof.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered April 24, 1912, dismissing an action on contract, upon the opening statement of counsel for plaintiff.</p>

<p>Judgment — Decree in Probate — Conclusiveness—Collateral Attack. An erroneous decree in probate by a court having jurisdiction, admeasuring dower, not appealed from, fixes the widow’s interest and is conclusive, and cannot later be collaterally attached by grantees of the widow claiming that she owned a half interest in fee under the community property laws.</p> <p>Lire Estates — Adverse Possession — Hostile Position — Lire Tenant — Rights or Remainderman. Remaindermen are not bound to assert their title during the lifetime of the life tenant, and adverse possession under the ten-year statute of limitations, Rem. & Bal. Code, § 156, cannot be claimed, as against them, under a deed from the life tenant purporting to convey the fee.</p> <p>Lire Estates — Adverse Possession — Acts Constituting — Cutting Timber. Cutting timber by a life tenant is not necessarily an act of possession, but is usually an act of waste.</p> <p>Lire Estates — Adverse Possession — “Title.” One claiming title under a deed of the fee from the life tenant cannot hold adversely to the remaindermen, under Rem. & Bal. Code, § 786, the seven-year statute of limitations for the recovery of lands held adversely under title in law or equity; “title” as there employed meaning a fee simple and not a limited fee.</p> <p>Life Estates — Advekse Possession — Claim and Colob of Title— Good Faith. The payment of taxes for seven years under color and claim of title in good faith, within Rem. & Bal. Code, § 789, cannot be asserted, as against remaindermen, under a deed from the life tenant purporting to convey the fee, as the claim cannot be asserted in good faith.</p> <p>Remaindebs — Right of Action — Limitation and Laches. Remaindermen are not guilty of laches in failing to assert title during the lifetime of the life tenant, even if the life tenant conveyed his interests by deed purporting to convey the fee.</p> <p>Remaindebs — Waste—-Right of Action. The statutory right of action for waste by remaindermen may be waived without creating or defeating a title to the estate.</p> <p>Life Estates — Advebse Possession — Payment of Taxes. It being the duty of a life tenant to pay taxes, he cannot assert title against remaindermen by the payment of taxes under the seven-year statute of limitations.</p>

<p>Carriers — Passenger Elevators — Negligent Construction —■ Common Use — Evidence—Sufficiency. There is sufficient evidence of negligence in the construction of a well and cage for an automatic elevator in an apartment house, intended to be used principally by women and children without any attendant, notwithstanding it was such as was commonly used in like buildings, where it appears that the floors projected into the well without any gate, door or protection inside the cage, which could have been easily installed, and that a child fell when the elevator started, falling with its head projecting over the unprotected edge of the cage, where it was caught and crushed by the next floor projecting into the elevator well.</p> <p>Same — Contributory Negligence of Passenger Operating Elevator — Evidence—Sufficiency. In such a case, the mother of a child two years old is not guilty of contributory negligence in attempting to use the elevator .with her children, where she entered the elevator with another infant in a baby buggy, carrying a number of packages, her experience with elevators had been limited, and she testified that she did not realize the danger of such an accident.</p> <p>Same — Proximate Cause of Accident — Evidence — Sufficiency. In such a case, recovery is not precluded by the fact that she testified she did not know what caused the child to fall, since falls by children of tender years should have been anticipated, and the failure to guard against the same was the proximate cause.</p> <p>Death —1 Wrongful Death — Infants — Measure of Damages — • Statutes — Evidence. Under Rem. & Bal. Code, § 184, providing that parents may maintain an action for the death of a child, which is construed to limit the recovery to the value of the child’s services to the age of majority, substantial damages may be recovered, without proof of special pecuniary loss, for the death of a baby girl, notwithstanding the parents are in comfortable circumstances financially, and capable of educating the child until the age of majority, which it had been their purpose to do.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered August 22, 1912, upon findings in favor of the plaintiff, in an action to foreclose a chattel mortgage.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice J., entered January 24, 1912, in favor of the plaintiff, upon overruling a demurrer to defendant’s answer, in an action to recover money paid.</p>

<p>Actions— Premature Actions — Community Property — Divorce. An action by a wife to recover an interest in community real estate not disposed of by a decree of divorce, rendered in California at tbe suit of tbe husband, is premature, where tbe decree was “interlocutory,” reciting that tbe husband has established grounds for tbe dissolution of tbe marriage bonds, and that upon tbe expiration of one year, final judgment granting a decree of divorce be entered, which time bad not elapsed when tbe wife’s action was commenced.</p> <p>Pleading — Supplemental Complaint — Office. In an action to quiet tbe title of a divorced wife in community property not disposed of by tbe decree, which was prematurely commenced before the final decree of divorce was entered, it is not allowable by supplemental complaint to plead tbe subsequent entry of tbe decree of divoree; since a premature action cannot be sustained by a supplemental complaint showing a later cause of action under a new class of facts which is the antithesis of the first cause pleaded.</p> <p>Pleading — Supplemental Complaint — Departure. An action commenced by one as a divorced woman, to recover a joint interest in community property not disposed of by a decree of divorce, cannot be sustained by the substitution, in a supplemental complaint, of a cause of action by the wife for the protection of her rights in the community property of herself and husband, a final decree of divorce not having been entered; since it would be the substitute of a different cause of action.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered December 4, 1911, upon a trial and conviction of second degree assault.</p>

<p>Master and Servant — 'Injury to Servant — Fall of Overhead Rock in Coal Mine — Cause of Accident — Evidence — Sufficiency. The negligence of the master in failing to provide a safe working place in a coal mine is for the jury, where it appears that a miner was injured by the fall of a great quantity of overhead rock, all of which could not have come from his own roof, but it could have come from, and there was evidence of a fall of rock in, an adjacent chute, which was admitted to be in bad condition.</p> <p>Same — Safe Place to Work — Coal Mine — Duty of Inspection. Where coal miners were expected to work up to the line of a chute, which they were not to enter or inspect, it is the continuing duty of the master to inspect and keep such adjacent space in a safe condition.</p> <p>Same — Fellow Servants — Coal Mines — Employees in Adjacent Workings. No question of the negligence of fellow servants is involved, where an employee was injured through failure to inspect and keep a working place safe.</p> <p>Same — Safe Place — Coal Mine — Assumption of Risks — Unknow Dangers. A coal miner does not assume the risks of dangers in adjacent works not under his control or subject to his inspection, and of which he had no knowledge, and which were not due to changing conditions, but to a “squeeze” known to the fire boss and the foreman, neither of whom gave any notice or warning thereof.</p> <p>Same — Contributory Negligence. Evidence that the roof over a miner’s room fell, does not establish his contributory negligence in placing props, as a matter of law, where the cause of the fall was a question for the jury.</p> <p>Same — Joint Tort Feasors — Master and Mine Foreman. A foreman, having direct supervision of a mine, who knew of dangerous conditions and took no step to remedy them, is guilty of negligence as a joint tort feasor with the company, and both may be joined in one action.</p> <p>Same — Master and General Superintendent — Duty and Notice. A general superintendent of a mine having no duty of personal inspection of the underground workings and no actual knowledge of a dangerous condition, known only to the fire boss and mine foreman who did not report it, is not liable with the company as a joint tort feasor.</p> <p>Damases — Personal Injuries — Total Disability — Excessive Verdict. A verdict for $18,000 for personal injuries sustained by a strong, well, coal miner, 29 years of age, capable of earning $4 per day, is not excessive, where he was rendered a cripple for life, with practically no earning power, his left leg was atrophied and partly paralyzed, he had little control of his urinary organs and suffers constant pain, with no hope of recovery.</p>

, entered May 4, 1912, upon findings in favor of the defendants, in an action on contract, after a trial on the merits to the court.

<p>Work and Labor — Action for Service — Implied Contract — Evidence — Sufficiency. An implied contract to pay for clearing land is not shown, where it appears that plaintiff went upon the land of his son-in-law and used it for crops, from 1904 to 1911, without any request on the part of the defendant, or any demand for pay, or any offer to account for the products, on the part of the plaintiff, although crops were raised every year.</p> <p>Appeal — Review—Harmless Error — Instructions. Error in instructions is harmless where the court should have tafeen the case from the jury and directed a verdict against the appellant.</p> <p>Trial — Instructions. An instruction that jurors should follow their own consciences or whatever they believe to be the truth, irrespective of anything else in the case, is an abstract platitude, and erroneous as tending to mislead the jury.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 27, 1912, upon the verdict of a jury rendered in favor of the plaintiff for $5,000, for personal injuries sustained' through the fall of a log from a car.</p>

<p>Judgment — Res Judicata — Matters Concluded. A judgment in condemnation proceedings for the purpose of ascertaining the amount of damages to abutting property by reason of a change of street grade is res judicata and a bar to a subsequent suit by a party thereto to recover damages therefor.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered May 9, 1912, upon findings in favor of the plaintiff, in an action upon a contractor’s bond.</p>

, entered September 23, 1912, upon findings in favor of the plaintiff, reversing an order of the industrial insurance department, on appeal from the order by a claimant.

<p>Frauds, Statute of — Bboker’s Commissions. A verbal contract for a broker’s commissions, made by one who was equitably a joint owner of the property, is within Rem. & Bal. Code, § 5289, requiring contracts for a broker’s commissions to be in writing, at least if the broker knew or should have known of the fact of such joint ownership.</p> <p>Brokers — Action for Commissions — Evidence — Sufficiency. Where brokers did not have an exclusive contract, they cannot recover commissions, in the absence of proof that the purchaser was produced by them or that the sale was the result of their efforts.</p>

<p>Trover and Conversion — Trial—Instructions. In an action for the conversion of a house, built by partners with joint funds, upon the separate property of the plaintiff, and which, on dissolution of the partnership, was to be divided as personalty, the sole issue being whether defendant’s half interest in the house was included in an exchange of properties and passed to the plaintiff, an instruction on the subject of common law fixtures, and casting the burden of proof of ownership of the house on the defendant, is misleading and erroneous.</p> <p>Trover and Conversion — Measure or Damages. In an action for the conversion of a house, removed from plaintiff’s land, the measure of damages is the value of the house at the time of its removal, with interest, and not the value of the use of the house on the premises from the time of its removal.</p> <p>Appeal — Record—Written Instructions. Instructions wholly in writing are part of the record on appeal, without being incorporated in the bill of exceptions or statement of facts.</p> <p>Appeal — Preservation op Geounds — Exceptions. Exceptions to instructions specifying the paragraphs by number are sufficient.</p>

, entered April 19, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by a pedestrian struck by an automobile.

<p>Counties — Division—Apportionment op Assets and Obligations. In the absence of any statute, when a new county is created from territory of an old county, the latter retains all its assets and assumes all existing obligations.</p> <p>Same — Powers op Legislature. The division of counties and apportionment of assets is solely a legislative function.</p> <p>Counties — Division—Indebtedness—Apportionment on Formation op New County. Upon the formation of a new county from territory of another county, under a special act complete in itself, requiring the new county to assume a certain proportion of the indebtedness of the old county but containing no provision as to the assets of the old county, the new county is not entitled to share in such assets; and the general statutes, Rem. & Bal. Code, §§ 3826, 3827, authorizing the two county auditors to agree upon the proportion of debts that the new county shall pay, have no application.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered March 30, 1912, upon a trial and conviction of burglary.</p>

Appeal by a garnishee from a judgment of the superior court for King county, Main, J., entered July 2, 1912, upon findings in favor of the plaintiff, in actions on contracts.

<p>Indemnity — Bonds—’Actions—Liability—Liquidated Damages or Penalty. Where a landlord, who was secured by bond, was damaged in an amount exceeding the sum secured by the bond, by reason of the lessee’s default, he is entitled to judgment in an action on the bond, whether for liquidated damages as specified in the bond, or by way of penalty.</p>

<p>Street Railroads — Franchises—Ordinances. A street railway-franchise ordinance to extend lines for two blocks, expressly declaring that nothing therein contained shall affect any franchise previously granted or authorize the city to acquire any property in the public streets heretofore constructed or located under any franchise previously granted, conflicts with a provision in a city charter providing that when any franchise is granted, the grantee shall voluntarily agree that “all the property of the grantee within the limits of the public streets” may be taken by the city at a fair valuation.'</p> <p>Street Railways — Ordinance—Franchise— Validity — Conflict With State Law. The city charter of Seattle, art. 4, § 20, making an ordinance granting a street railway franchise subject to a referendum vote of the people, and requiring any extension, or new franchise covering any substantial part of an old one, to be first submitted to a vote of the qualified electors, is void; since the legislature by Rem. & Bal. Code, § 9080, has vested in- the legislative authority of the city the power to grant street railway franchises without the restrictions imposed by the charter.</p> <p>Municipal Corporations — Charters — Powers — Statutes — Implied Repeal — Street Railways — Franchises. Laws 1911, p. 54, §§ 1-3, providing that the form of the organization and the manner and mode in which cities of the first class shall exercise powers “with respect to their own government” shall be as provided in their charters, and authorizing direct legislation “within the scope of such powers” by the initiative and referendum, does not impliedly repeal Rem. & Bal. Code, § 9080, conferring upon the mayor and council the power to grant franchises; since the power to grant franchises is a sovereign power which may be delegated by the state and is not within the act of 1911 relating to powers exercised by cities, “with respect to their own government.”</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered January 3, 1912, upon findings in favor of the plaintiff, in an action to foreclose a lien.</p>

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

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered1 February 26, 1912, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered May 25, 1912, dismissing an action to vacate a judgment, after a trial on the merits.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald J., entered May 22, 1912, upon a trial and conviction of wife desertion.</p>

, entered January 14, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action by a passenger for injuries sustained in a collision.

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered June 7, 1912, upon findings in favor of the defendant, in an action on contract, after a trial on the merits.</p>

, entered March 30, 1912, on granting a nonsuit, dismissing an action for personal injuries sustained by one seeking to board a street car.

<p>Indictment and Information — Objections—Time for Taking. Objection to the sufficiency of the information cannot be made after a plea of not guilty, except by motion in arrest of judgment.</p> <p>Indictment and Information — Duplicity—Waiver. Under Rem. &'Bal. Code, §2105, prescribing the grounds of demurrer to the indictment or information, and § 2183, prescribing the grounds for motion in arrest of judgment, the question of duplicity can only be raised by demurrer or motion to quash or compel an election, prior to plea of not guilty, and comes too late if made after verdict.</p> <p>Forgery — Information—Duplicity. Under Rem. & Bal. Code, § 2583, defining forgery in the first degree as the forging of any writing with intent to defraud, and § 2587, making it forgery in the same degree to knowingly utter a forged instrument with intent to defraud, an information is not duplicitous and charges but one crime, where it charges the forging and uttering of one instrument by tbe same person with intent to defraud in both of the statutory ways, as part of one connected transaction, continuous in point of time; as the two ways are not repugnant to each other.</p> <p>Forgery — Elements—Defenses. In a prosecution for forgery of a check, it is immaterial, and not a defense, that the accused used the proceeds in an unlawful gambling game conducted by the party who cashed the check.</p> <p>Same — Evidence—Admissibility. In a prosecution for forgery of a check, evidence that the person whose name was forged was indebted to the accused is inadmissible.</p> <p>Same. In a prosecution for forgery of a check, the person whose name was forged cannot be asked if he would have paid the check if it had been presented to him by a bank or any legitimate holder.</p> <p>Appeal — Review-—Exceptions to Instructions. Exceptions to instructions, merely filed with the clerk and not called to the attention of the trial judge, cannot be considered on appeal, especially where no motion for a new trial was made.</p> <p>Forgery — Presumptions From Possession — Instructions. In a prosecution for forgery, it is error to instruct that possession of a forged check raises a presumption of guilt.</p> <p>Criminal Law — Trial—Instructions—Unlawful Comment. In a prosecution for forgery, an instruction that possession of a forged chock raises a presumption of guilt, is not an unlawful comment on the evidence, so as to constitute fundamental error that could not be waived.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 27, 1912, upon findings in favor of the plaintiffs, in an action of ejectment tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered May 6, 1912, upon findings in favor of the plaintiff, in an action on a claim against an estate.</p>

<p>Application filed in the supreme court February 17, 1913, for a writ of mandate to compel the state auditor to issue a warrant.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered July 29, 1912, dismissing a petition to vacate a judgment.</p>

<p>Appeal from a judgment of the superior court for Clarice county, McMaster, J., entered March 4, 1912, upon findings in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for What-com county, Kellogg, J., entered December 11, 1911, upon a trial and conviction of unlawful fishing.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Sheeks, J., entered December 8, 1911, dismissing an action to restrain the collection of taxes, after a trial on the merits.</p>

, entered March 21, 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 contact with electric wires on a highway.

<p>Brokers — Commissions — Contract for Employment — Performance. A broker is entitled to recover his commissions, the value of shares agreed to be given him, for finding a purchaser for 3,000 shares of stock in a corporation to be organized by the defendant, where he fully performed his agreement by finding a purchaser willing to buy the stock, but the project fell through solely because of defendant’s misrepresentations as to the commissions he would make out of the enterprise, and as to the number of subscribers necessary to form the syndicate, and the value of the land.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered May 27, 1912, upon findings in favor of the defendants, dismissing an action to foreclose a mechanics’ lien.</p>

<p>Contracts — Building Contracts — Specifications—Construction. Specifications of a contract for plumbing, requiring best quality “galvanized wrought iron or mild steel” pipe, confer an option upon the contractor to use either “galvanized wrought iron” or “mild steel.”</p> <p>Contracts — Construction — Powers of Supervising Architect. The supervising architect for the construction of a Federal building, under a contract making his decision as to the proper interpretation of the specifications final and conclusive, has no power to require the use of “galvanized wrought iron” pipe, where the contract plainly gave the contractor the option to use “mild steel” pipe.</p> <p>Parker, J., dissents.</p>

<p>Certiorari to review a judgment of the superior court for King county, Dykeman, J., entered December 13, 1912, dismissing an action to review an order of a school directors’ board, upon sustaining a demurrer to the complaint.</p>

<p>Criminal Law — Trial—Continuance—Discretion—Necessity or Showing — Speedy Trial. It is discretionary with the trial court to grant a continuance, after a criminal case has been set for trial, on its appearing that a material witness for the state, whose name was indorsed on the information, is temporarily absent from the state; and the accused cannot complain that he was denied a speedy trial or that a showing was not made as to the issuance of a subpoena for the witness, and the substance of his evidence, where, the accused was brought to trial within sixty days after the information was filed as required by Rem. & Bal. Code, § 2312.</p> <p>Larceny — By False Representations — Evidence—Sufficiency. A conviction of grand larceny by false representations is sustained where it appears that the accused represented that he had three hundred tons of potatoes, which he thereupon sold under an agreement to ship them from week to week, that he received as first payment a check for $500, cashed the same and left the state, and when arrested admitted that he did not have any potatoes.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered April 15, 1912, dismissing an action for seduction, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered August 6, 1912, upon findings in favor of the defendants, dismissing a writ of certiorari to review a decision of the board of county commissioners reversing an order of county superintendents of schools creating a joint school district.</p>

<p>Master and Servant — Negligence—Saps Place to Work — Evidence — Sufficiency—Assumption op Risk. An action by a workman employed in piling up cement bags, for injuries sustained through the fall of a pile of bags, alleged to have been “piled too high” and in a negligent manner, must fail in the absence of any evidence to show the cause of the fall, or that the pile was improperly piled, especially where the plaintiff was experienced and might have assumed the risk of a dangerously high pile.</p> <p>Mastee and Servant — Injury to Servant — Cause op Accident— Res Ipsa Loquitur. In an action for injuries through the fall of a pile of- cement bags injuring a workman engaged in piling bags, the doctrine of res ipsa loquitur does not apply, where there was nothing to indicate whether the fall was due to negligent piling or the act of a fellow servant.</p>

<p>Abatement and Revival — Survival—Wills—Contest—Death of Contestant — Statutes—Construction. The right to contest a will survives to the heirs or personal representatives of the heir of the putative testator, under Rem. & Bal. Code, § 1307, conferring the right to contest on “any person interested” in any will, and Id., § 193, providing that no action shall abate by death if the cause of action survive, and Id., § 967, providing that all other causes of action than those enumerated in § 183 survive, whether arising on contract or otherwise; the test of survivorship being the assign-ability of the cause of action.</p>

Appeals from judgments of tbe superior court for Chehalis county, Irwin, J., entered August 6, 1912, dismissing actions consolidated for trial, to recover personal property or its price.

<p>Appeal — Supersedeas—Right To. Supersedeas is not a matter of right pending an appeal from an order directing the county commissioners to appoint a road supervisor from a list of names furnished by a good roads association, pursuant to Rem. & Bal. Code, § 5578, there being no right to a supersedeas in matters of public interest unless the parties can be kept in statu quo, or the damages compensated in money.</p>

<p>Eminent Domain — Public Use — Necessity. Where a railroad company requires a right of way sixty feet wide in a canyon or gulch, in order to make necessary fills; cuts, and turnouts, an adjudication of public use is sustained, although the landowners, who were owners of a sawmill, needed part of the way for a logging road over which to haul forest products of their own and others.</p>

, entered September 14, 1912, upon findings in favor of the plaintiff, in an action of tort, after a trial to the court.

, entered May 21, 1912, dismissing an action for personal injuries sustained by a pedestrian in passing street grading work, on granting a nonsuit.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered January 3, 1912, upon findings in favor of the plaintiffs, in an action for an injunction.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered May 6, 1912, upon findings in favor of the plaintiff, in an action for reformation and specific performance.</p>

<p>Judgments — Persons and Matters Concluded — Law of the Case. Where, in an action against a city and a contractor, for damages to property through the filling up of low land under the police power, a nonsuit was granted as to the city, and no appeal was taken therefrom, a judgment against the contractor cannot be sustained on the theory that there was a taking or damaging of property without compensation first paid as required by Const., art. 1, § 16; since the nonsuit as to the city became the law of the case on that point.</p> <p>Municipal Corporations — Improvements—Damage to Property— Defective Plans — Liability. While a city may fill low lands as a sanitary measure without liability for consequential damages suffered by the lands within the district filled, it is liable for injury to abutting property; and when lands originally within the district have, by the engineer having authority to exempt property, been excluded from the district, they became abutting property within the above rule.</p> <p>Same — Damage to Property — Defective Plans — Liability of Contractor. Where a city furnished the plan and directed the work of filling up low lands, and damages to abutting property resulted, not from any negligence or wrongdoing of the contractor, who performed the work in the manner required by the contract, the contractors stand in the relation of agents of the city and not as independent contractors, and the liability rests upon the city and not upon the contractors, who cannot be held after a nonsuit is granted as to the city.</p>

, entered May 81, 1912, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries sustained by an employee of an interstate railroad.

<p>Appeal from an order of the superior court for King county, Myers, J., entered March 27, 1912, in favor of the claimant, in a proceeding against a receiver for money received, after trial on the merits to the court.</p>

<p>Appeal from an order of the superior court for King county, Mackintosh, J., entered August 8, 1912, allowing attorney’s fees, in an action for divorce.</p>

<p>Appeal from a judgment of the superior court for King county, Everett Smith, J., entered May 1, 1912, upon findings in favor of the plaintiff, in an action on contract, after a trial to the court.</p>

<p>Statutes — Foreign Laws — Presumptions. In the absence of allegation, it will be presumed that the bankruptcy laws of a foreign country are the same as our own.</p> <p>Receivers — Temporary Receivers — Actions—Capacity to Sue. A temporary or act interim, receiver in bankruptcy, not being vested with tbe title to the estate of the alleged bankrupt, cannot maintain an action on behalf of the estate, in the absence of a showing that the property sought is in danger of being dissipated; and hence has no capacity to sue on mere choses in action or for unliquidated damages.</p>

<p>Trial — Objections — Demurrer Ore Tenus — Decision. Defendants have the right to rest upon a demurrer ore tenus on the ground that the complaint does not state sufficient facts, even after issue Joined by answer; and the court may defer ruling thereon, and sustain the demurrer at the close of the evidence, if proof of the necessary facts be not produced.</p> <p>Mechanics’ Liens — Foreclosure—Relationship—Allegation and Proof — Necessity. The complaint or proof in an action to foreclose a materialman’s lien must show the relationship between the owners of the property and the persons ordering or contracting for the materials furnished, under Rem. & Bal. Code, § 1129, requiring that the materials be furnished either at the instance of the owner, or his agents or contractors, architects, builders, or persons having charge of the construction.</p>

, entered May 28, 1912, in favor of the defendant, in an action upon a claim against an estate, after a trial to the court.

<p>Application' filed in the supreme court March 10, 1913, for a writ of prohibition to the superior court for King county, Everett Smith, J., to prevent the enforcement of an order requiring plaintiff to meet the defendant.</p>

<p>' Appeal from a judgment of the superior court for King county, Tallman, J., entered June 14, 1912, upon findings in favor of the plaintiff, in an action on contract, after a trial to the court.</p>

<p>Waters and Water Courses — Easements—Grant by Implication —Irrigation Ditch. Where the owner of irrigated land sold part of the tract, after he and his predecessors in interest had created and continuously used a ditch across the land retained, which was reasonably necessary for the beneficial use and enjoyment of the land sold as an outlet for waste water accruing from the irrigation thereof, the grantees take an easement in the land retained for the maintenance of the ditch, as located at the time of their conveyance.</p> <p>Same — Abandonment — Intention — Evidence — Sufficiency. Abandonment of a waste ditch to carry off surplus water in irrigating land is a matter of intention, and is not shown by the fact that the owners of the dominant estate permitted the owners of the servient estate to temporarily change the course of the ditch for a period of two or three years, the changed location still subserving the purposes of a waste ditch.</p> <p>Same. An easement in the maintenance of a ditch for irrigation is not lost by the fact that other parties were allowed to make use of it.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered December 4, 1911, upon findings in favor of the defendants, in an action for an injunction.</p>

, entered May 18, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, for the sum of $1,500, for personal injuries sustained by a pedestrian run down by an automobile.

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered June 1,1912, upon findings in favor of the plaintiff, in an action of ejectment.</p>

<p>Master and Servant — Injury to Servant — Contributory Negligence — Question eor Jury. The contributory negligence of an employee is for the jury, where there was evidence that an elevator started automatically and was running away, when, in order to save himself, he grasped the wrong cable and his hand was drawn into the drum.</p>

<p>Master and Servant — Safe Place — Bridge Construction — Negligence — Question for Jury. The negligence of a city in failing to properly support a temporary arch for a bridge is for the jury, where witnesses testified that it “buckled” or “listed,” and leaned upstream six to eighteen inches, that it was an efficient barrier to the wind, and that the wind which caused the fall was not unusual or unprecedented.</p> <p>Same — Assumption of Risks. A workman on a city bridge does not assume the risks of changing conditions requiring engineering oversight and due to outside causes, as a high wind and listing, as distinguished from those incidental to the work itself.</p> <p>New Trial — Grounds—Misconduct of Counsel. In a case against a city, a new trial will not be granted for misconduct of plaintiffs counsel, in that at one time he represented the defendant, where it appears that when he was corporation counsel, his name had been signed to an answer for the defendant, but that he had nothing to do with the case, and was unexpectedly called to represent the plaintiff in the absence of his partner, and the case had been well tried and twice appealed.</p>

<p>Appeal from a temporary restraining order of the superior court for King county, Albertson, J., entered July 2, 1912.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell J., entered June 8, 1912, upon findings in favor of the plaintiff, in an action on contract tried to the court.</p>

<p>Municipal Corporations — Improvements—Assessments—Review by Courts. An assessment district fixed by commissioners will not be changed by the courts unless the commissioners acted arbitrarily or fraudulently, or upon a fundamentally wrong basis; and not for a mere difference of opinion as to what were the proper limits.</p> <p>Same — Assessment—Apportionment. A city need not be charged with part of the cost of a local improvement, where there was no evidence that any special benefit accrued to the city at large.</p> <p>Same — Proceedings—Ordinance—Variance. It is not a material variance that an ordinance directed a local improvement to be paid wholly or in part by a special assessment upon property benefited, and the judgment recited that the ordinance required the same to be paid for in whole by such assessment, where the board of eminent domain commissioners found that no part of the cost should be borne by the city.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Yakey, J., entered June 17, 1912, upon findings in favor of the plaintiff, in an action for money had and received, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered August 21, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee engaged in tearing down a building.</p>

<p>Vendor and Purchaser — Contracts—Agreement to Purchase or Option — Construction. A contract acknowledging receipt of the sum of $100 as part payment upon the purchase price of land, followed by provisions contemplating the consummation of the sale, and providing that the purchaser, if the title shall be found insufficient or unsatisfactory, may at his option have the sums paid returned to him, is a contract for the sale and purchase of the land and not an option, notwithstanding a provision that if the title is not subject to objection and the purchaser fails to perform his part of any of the terms of the contract, the sums paid shall be retained by the owner as liquidated damages and the purchaser shall not be under any further liability.</p> <p>Specific Performance — Mutual Obligations — Right to Rescind. A contract for the sale of land is not so lacking in mutuality that the law will not enforce specific performance, from the fact that it provides that the purchaser may rescind in case the title is not satisfactory to him, since he would be compelled to accept a marketable title.</p> <p>Same — Mutuality of Obligation. A contract for the sale of land is not so lacking in mutuality that it cannot be specifically enforced from the fact that the purchaser may satisfy all obligations on his part by forfeiting the sum of $100 paid as part of the purchase price, that being a sufficient consideration for the owner’s obligation to convey.</p> <p>Same — Mutuality—Signature By One Party. A contract signed by only one of the parties is not for that reason lacking in mutuality.</p> <p>Same — Mutuality of Remedy. Equity will not refuse specific performance of a contract for the sale of land because of the fact that a mutuality of remedies was not provided in the contract, where the contract was fully executed on the part of the plaintiff at the time of filing the bill.</p> <p>Vendor and Purchaser — Contract — Performance or Breach— Tender. Where a contract for the sale of land made the payment of the balance of the purchase price and the execution of the conveyance mutual, concurrent, and dependent acts, a tender of the purchase price before demand and offer of a deed is in time, although after the time limited in the contract.</p> <p>Specific Performance — Defenses—Title of Vendor — Voluntary Disqualification to Perform. It is not a defense to specific performance of a contract to convey land that the defendant voluntarily disqualified himself from vesting title by conveying the land to a third person, where the plaintiff is proceeding upon the theory that he is not disqualified and is willing to take a conveyance from the defendant in accordance with the terms of the contract.</p> <p>Abatement and Revival — Another Action Pending — Dismissal of Former Action Without Prejudice — Effect. A plea of another action pending cannot he sustained, where prior to the trial the former action had been dismissed without prejudice, although it was pending at the time of the commencement of the second action.</p>

<p>Appeal — Decision—Recall of Remittitur — Grounds — Jurisdiction. The supreme court loses jurisdiction of the cause when the-’ remittitur goes down, and cannot recall the remittitur except for the purpose of correcting a mistake or enforcing its judgment.</p> <p>Same — Decision—Recall of Remittitur — Delay. A motion filed March 6th, 1913, to recall a remittitur sent down on July 3d, 1912, will he denied for want of due diligence.</p>

<p>Corporations — Residence—Conditional Sales by Corporation— Filing — County op Residence. The principal place of business of a corporation designated as required by law in its articles of incorporation must be held to be its “residence,” within Rem. & Bal. Code, § 3670, requiring conditional sales contracts to be filed with the auditor of the county wherein the vendee resides.</p>

<p>Appeal by plaintiff from a judgment of the superior court for Snohomish county, Yakey, J., entered July 3, 1912, in favor of the plaintiff by direction of the court, against one defendant, and in favor of another defendant, for costs, after a trial before the court and a jury.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Baske, J., entered March 81, 1918, upon findings in favor of the plaintiffs, after a trial on the merits before the court, in an action for cancellation.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered September 12, 1912, in favor of the plaintiff, after a trial on the merits before the court, in an action to establish a boundary line.</p>

<p>Municipal Cobpoeations — Public Impbovements — Initiating Ordinance — Amendment—Vested Rights. Property owners have no such vested interest in the proceedings initiating a public improvement that the .city could not amend the initiatory ordinance prescribing the special assessment district, so as to provide that the district shall be determined by the eminent domain commissioners, according to law, where there is no statute giving the property owners the right to protest against such improvement or to be represented by counsel in the initiatory condemnation proceedings, and the ordinance was amended prior to the notice of the assessment required by law to be given the property owners, who are then given an opportunity to make any objection to the assessment roll.</p> <p>Same — Preliminary Ordinance — Amendment—Validity. An amendment of a specified section of an ordinance initiating a public improvement is not invalid by reason of the fact that such section had been previously repealed, where there was no doubt of its purpose to make the amendment a part of the original law; since an ordinance may be amended by adding a new section, which was the effect of the amendment.</p>

<p>Landlord and Tenant — Unlawful Detainer — Action on Bond— Defenses — Surrender. Tbe defendant in an action of unlawful detainer did not voluntarily surrender tbe premises, so as to preclude action on tbe bond for restitution, where sbe failed to bave entered an order increasing tbe plaintiff's bond, after tbe court bad granted a motion tberefor, and tbe plaintiff took advantage of tbe situation, stood upon tbe bond already given, and directed execution of tbe writ, whereupon tbe defendant moved out under tbe threat that her goods would be thrown into tbe street.</p> <p>Same — Unlawful Detainee — Action on Bond — Pbima Facie Case. In an action upon a bond for restitution given in an unlawful detainer action, the fact that the plaintiff in unlawful detainer voluntarily dismissed his action is prima facie sufficient to show that the writ was wrongfully sued out; and authorizes a recovery where it was further shown that plaintiff was in possession under a lease from one authorized to make it.</p> <p>Same — Liability on Bond — Elements of Dam:age. In an action upon a bond for restitution, given in an unlawful detainer action in which the tenant was ousted of possession, the plaintiff may recover as elements of damage the amount of advance rents paid, damages on account of the removal, and attorney’s fees paid for successfully defending the unlawful detainer action.</p>

, entered May 25, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to enjoin a power company from diverting the waters of a river.

<p>Landlord and Tenant — Constructive Eviction — Waiver. A constructive eviction by an unlawful interference with tbe lessee’s subtenant is waived where tbe lessee does not surrender tbe premises.</p> <p>Same — Lease—Breach by Landlord — Damages — Evidence—Admissibility. Where a landlord unlawfully interfered with tbe lessee’s subtenant, causing a loss of tbe rent under tbe sublease, tbe sublease is not admissible in evidence to prove tbe damages, inasmuch as gains or profits of collateral subcontracts cannot be recovered for breach of tbe original contract, where tbe subcontract was made after tbe execution of tbe original contract.</p>

<p>Corporations — Capital Stock — Unlawful Reduction — Bankruptcy — Action by Trustee. A trustee in bankruptcy of an insolvent corporation may recover money paid out by the corporation in the purchase of its stock, if any creditor was injured thereby, whether the corporation was solvent or not at the time of the transaction.</p> <p>Corporations — Capital Stock — Reduction in Fraud op Creditors —Action to Recover — Instructions. In an action by a creditor of an insolvent corporation to recover money unlawfully paid by the company for its capital stock, it is error to instruct the jury that if defendant sold the stock to the company and knew he was selling it to the company he would be liable, otherwise not; since his knowledge or good or bad faith was immaferial in case the corporation paid out money for its capital stock to the prejudice of creditors (Mount and Parker, JJ., dissenting).</p> <p>Same — Question por Jury. In such a case, the plaintiff is not entitled to a directed verdict, where there was a question of fact for the jury as to whether the stock was sold to and paid for by another instead of the corporation.</p>

<p>Attorney and Client — Contract nor Compensation — Fraud oe Attorney — Evidence—Issues and Instructions. In an action to recover money paid to an attorney as a fee for defending plaintiff, on tlie ground of misrepresentations as to the seriousness of the charge, it is error to try the case on the theory that the plaintiff could recover all or no part of the money paid, where it appears that the attorney was not discharged, but performed various services, securing the plaintiff’s release on bail, argued a demurrer, investigated the facts, secured a separate trial, and sat through the trial of the other defendants, whereupon plaintiff was discharged; since the issues to be presented are, was the plaintiff overreached; and if so, what was the reasonable value of the services performed.</p>

<p>Municipal Corporations — Officers—Civil Service Regulations —Removal—Power to Discontinue Office. Under § 24 of the Spokane charter providing that the council shall have the power to discontinue all offices and employments except certain enumerated offices, and § 55 providing for the suspension of employees by the heads of departments on filing charges, an office may be “discontinued” only by the council, and an attempted discontinuance by the mayor of the office of sanitary inspector in the health department, who was continued in office at the adoption of the new charter by § 53, is a nullity.</p> <p>Same — Charter Provisions — Adoption—Effect on Officers Continued in Office. The adoption of the new city charter of Spokane in 1910 did not discontinue the office of sanitary inspector in the health department, where the new charter only reorganized the department, and by § 53 the new charter provided that employees within the scope of the article (including sanitary inspectors) who are in office at the time of the adoption of the charter shall retain their positions unless removed for cause, and they were afterwards placed in the classified civil service list and made permanent.</p> <p>Same — Officers—Salary of Wrongfully Removed Officer. A sanitary inspector who was wrongfully separated from his office may recover the salary for the period, where he held himself ready to perform his official duties, and it is immaterial that he declined other temporary employment tendered by the city.</p> <p>Same — Officers — Wrongful Removal — Remedies — -Appeal to Civil Service Commissioner. Under § 55 of the Spokane charter providing for the suspension of an officer for cause upon a hearing, and appeal therefrom, an officer removed by subterfuge of an unauthorized “discontinuance” of the office, without a hearing, is not required to appeal.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered July 12, 1912, upon findings in favor of the defendant, in an action for rescission and recovery of money paid, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered June 28, 1911, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by an employee engaged in unloading coal cars.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered. April 17, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a coal miner through defective appliances.</p>

<p>Executors and Administrators — Appointment — Risht to Letters — Husband and Wife — Community Property. Under Rem. & Bal. Code, § 1389, giving the husband the preference right to letters of administration upon the estate of his deceased wife, he cannot be deprived thereof by the fact that he claimed to own the homestead as his separate property and declined to inventory it as belonging to the estate; since the rents and profits may be covered by the bond, pending determination of the title, the failure to mention the property does not defeat or cloud the title, and the court may take evidence to determine whether it shall be included in the inventory, under Rem. & Bal. Code, § 1450, requiring the administrator to make a true inventory, and § 1457, providing for revocation of his letters if he refuse to do so.</p> <p>Appear — Review—Cessation of Controversy — Rehearing. Where a case is settled pending appeal, by a waiver of appellant’s right to administer an estate, it is the duty of the respondent to call the fact to the attention of the court; and after decision filed, the respondent cannot, on petition for a rehearing, ask a modification of the judgment on account of the waiver.</p>

<p>Corporations — Actions by Stockholders — For Benefit of Corporation. In an action by a stockholder on bebalf of htimself and others similarly situated, in which there is a favorable termination, the benefit of which goes to the corporation, plaintiff is entitled to recover a reasonable attorney’s fee and necessary disbursements, but such allowance will not be made to a stockholder owning half of the stock, in a controversy with the owner of the other half, in which a receiver was appointed on the theory of a partnership, and no one but the plaintiff was benefited by the result of the suit.</p> <p>Appeal — Decision—“Law of the Case.” Where the supreme court has decided, upon disputed evidence, the right of an officer of a corporation to draw a salary, the decision is the law of the case governing a retrial upon substantially the same evidence.</p> <p>Partnership — Compensation of Partners. A partner cannot claim compensation from the partnership in the absence of an agreement therefor, even if he renders exceptional services; especially where an agreement had been made whereby each was to draw a like amount each month.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered April 30, 1912, upon findings in favor of the plaintiff, in an action for rents collected and equitable relief..</p>

<p>Vendob and Puechasee — Option — Assignment—Assumption oe Payments — Liability to Vendoe — Peincipal and Agent. An assignment of an option for the purchase of a mine, whereby the assignee agreed to make all the payments called for, does not render the assignee unconditionally liable to the vendor for the payments, where the same were all optional, the option was assignable on its face, and was obtained by the assignor as the agent and for the benefit of the assignee; since the vendor’s rights are measured by the terms of the option agreement.</p>

, entered November 9, 1912, upon findings in favor of the plaintiff, in an action for injuries sustained in a fall through a trapdoor in a store, after a trial to the court.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered August 6, 1912, dismissing an action of replevin, after a trial upon stipulated facts before the court without a jury.</p>