Volume 73 — Washington Reports

<p>Appeal from a judgment of the superior court for Spokane county, Easterday, J., entered May 15, 1912, upon withdrawing the case from the jury, dismissing an action for personal injuries sustained by a powder man through a delayed explosion in blasting.</p>

<p>Landlord and Tenant — Unlawful Detainer — Defenses—Title. The title to real property cannot be tried out in an action of unlawful detainer.</p> <p>Same — -Existence of Relation — Acts Constituting. Where, upon the death of his wife, a father permitted his daughter to go into the possession of the community real property, her possession is permissive and she is liable in unlawful detainer for holding over, after notice to vacate or pay rent.</p> <p>Same — Damages—Rent Due. In unlawful detainer, judgment for damages in double the amount of the rent due is proper.</p>

<p>Appeal from a judgment of the superior court for Clarke county, McKenney, J., entered April 18, 1912, upon findings in favor of the plaintiff, in an action to quiet title.</p>

, entered June 9, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for deceit.

<p>Appeal from a judgment of the superior court for Clarice county, McMaster, J., entered March 6, 1912, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal — Decisions Reviewable — Cessation of Controversies. On an appeal from a judgment enjoining the enforcement of omnibus regulations at a depot stand, there is no cessation of the controversy from the fact that the appellants, being unable to supersede their appeal, promulgated new regulations.</p> <p>Injunction — When Lies — Enforcement of Laws. Injunction lies to test validity of police regulations of omnibuses at a depot, since the legal remedies of submitting to an arrest and a civil action for damages are inadequate, and inoperative as to the future.</p> <p>Municipal Corporations — Police Regulations — Hackmen—Depots. It is within the police power of a city to regulate solicitation by, and the stands for, haekmen at a railroad depot.</p> <p>Municipal Corporations — Police Regulations — Hackmen — Depots — Reasonableness. Rules regulating omnibuses at a depot stand are not unreasonable in that certain vehicles are assigned to specified spaces, some of which are of much more value than the others, if they are reasonable so far as the rights of the public are concerned.</p>

Application filed in the supreme court February 14, 1912, for a writ of mandamus to compel the superior court for King county, Gilliam, J., to exercise jurisdiction in certiorari proceedings.

<p>Contracts — Performance—Delay—Excuses. Delay in the performance of a contract to clear land is excused where it was due to the superior rights of the owner of the timber, known to the owner of the land, and performance was completed as soon as the owner of the timber would permit.</p> <p>Contracts — Performance—Abandonment—Subcontracts. A contract to clear land is not abandoned by the letting of a subcontract under which the work 'provided for in the original contract was completed by the subcontractors.</p>

<p>Wobk and Labor — Contract—Term—Certainty. A contract of employment to work in a mine at P. in Alaska during the season of 1911 is not void for indefiniteness or uncertainty as to the time of service, where it appears that there was a well defined mining season at that place, although the season was in a measure dependent upon contingent events.</p> <p>Pleading — Variance. It is not a material variance, within Rem. & Bal. Code, § 299, that the complaint alleged an oral contract of employment to work in a mine in Alaska entered into April 24th, and the proof showed an oral contract prior to that time, and a letter sent to the employee April 24th directing him when to commence work.</p>

<p>Navigable Waters — Obstructions—Damages — Evidence — Question eor Jury. In an action for damages from obstructing navigation and preventing the towing of shingle bolts to plaintiff’s mill by the usual direct route, the reasonableness of plaintiff’s efforts to supply its mill with bolts by other means, and the extent of the extra risks, is for the jury, where there was evidence that it was impossible to get a sufficient supply other than by towing, and that the indirect towing route was attended with considerable extra risks.</p>

<p>Weights and Measures — Power to Regulate. It is within tbe general police power of a city to legislate upon tbe subject of weights and measures to prevent frauds.</p> <p>Same — Power to Regulate — Delegation of Powers. Const., art. 11, § 10, permitting cities to frame their own charters, and Id., art. 11, § 11, providing that any city may make and enforce all such local police regulations as are not in conflict with the constitution and general laws, delegates to the city police power to legislate upon the subject of weights and measures to prevent frauds.</p> <p>Same — Power to Regulate — Implied Power. Tlie power to require tbe true weight or measure to be stated on the container is fairly implied in and incident to tbe power conferred by Rem. & Bal. Code, § 7507, subd. 16, to “provide for tbe weighing, measuring and inspection of all articles of food and drink.”</p> <p>Municipal Corporations — Ordinances — Subjects and Titles. Provisions in an ordinance regulating weights and measures requiring the true weight or measure to be stated on the container, are within the title “relating to weighing, measuring and inspecting all commodities sold ... to enforce the keeping of proper legal weights and measures . . .” etc.</p> <p>Same — Regulations—Reasonableness. An ordinance requiring the true weight or measure to be stated on the container is not unreasonable in that the true weight at the time of packing is more than the true weight after loss by evaporation; since it merely throws the loss upon the packer instead of the consumer.</p>

<p>Appeal from a judgment of the superior court for King county, Everett Smith, J., entered July 10, 1912, upon findings in favor of the plaintiff, in an action on contract.</p>

<p>Corporations-Actions-Venue — “Transacting Business.” Where a corporation sent an agent to another county who there purchased lumber, and caused the same to be shipped direct to other points, it is “transacting business” in such county, within the meaning of Rem. & Bal. Code, § 206, authorizing suits to be commenced against a corporation in any county where it transacts business.</p>

, entered June 29, 1912, upon findings in favor of a claimant, in an action by an executor to determine the identity of a beneficiary named in a will.

<p>Appeal from a judgment of the superior court for Cowlitz county, McKenney, J., entered June 26, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages.</p>

<p>Quieting Title — Process—Service by Publication — Jurisdiction. The state has power to enact laws whereby the title to real property within the state may be quieted as against nonresident or all unknown heirs, by service of process by publication; and the court by such service acquires jurisdiction to adjudicate the title to the property.</p> <p>Same — Process—“Unknown” Heirs. Under a title against “unknown heirs,” children of a deceased child may be considered heirs at law of their deceased grandparent.</p> <p>Judgment — Attack—Presumptions—Lis Pendens. Where judgment was rendered against unknown heirs in an action to quiet title, it will be presumed in an action attacking the judgment, that a Us pen&ens was filed in the action to quiet title, as required by Rem. & Bal. Code, § 232, in the absence of any allegation to the contrary.</p> <p>Quieting Title — Unknown Heirs — Jurisdiction. In an action to quiet title against a named defendant, and unknown heirs, the court has jurisdiction to adjudicate the title, although the named defendant was dead at the time the action was commenced.</p>

, entered April 26, 1912, in favor of certain defendants, notwithstanding the verdict of a jury rendered in favor of the defendant and cross-complainant, in an action on a promissory note.

, entered August £7, 191£, in favor of the defendant upon stipulated facts, dismissing an action to set aside an assessment.

, entered April 1,1912, upon the verdict of a jury rendered in favor of the plaintiff, for $15,000, for personal injuries.

<p>Application filed in the supreme court December 16, 1912, for a writ of certiorari to review an order of the superior court for Spokane county, Huneke, J., entered November 15, 1912, requiring additional parties to be brought into an action, and refusing to consolidate actions.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Pendergast, J., entered October IT, 1912, upon the verdict of a jury rendered in favor of the defendant, in an action1 for damages to property by reason of obstructions in a street.</p>

<p>Municipal Corporations — Improvements—Use of Streets — Construction of Bridge — Damage to Abutters. In occupying a street for necessary cables, tramways, false work and engines used in the construction of a bridge, the city is not liable to the owner of an abutting lot for damages by reason of vibration, cinders, soot, and steam which were necessarily incident to the work, where there, was no negligence on the part of the city and no physical invasion of the property beyond the street line or a physical projection of the instrumentalities over the adjoining property.</p> <p>Same — Damages to Abutters — Offset of Benefits. Any taking or damaging of abutting property by a physical invasion beyond the street line, or a physical projection of instrumentalities over the property, in the work of constructing a bridge, is subject to an offset for benefits under Const., art. 1, § 16.</p> <p>Municipal Corporations — Claims—Continuing Injuries to Property — Anticipation op Damages. A claim against a city for continuing damages to abutting property by reason of tbe city’s occupation of a street during tbe construction of a bridge may anticipate tbe damages to occur in tbe future, where tbe trespass was certain to continue.</p>

<p>Appeal — Review—Verdicts. A verdict upon conflicting evidence correctly submitted is controlling on appeal.</p> <p>Appeal — Record—Instructions. Instructions cannot be reviewed on appeal when not made a part of the record, or when only isolated instructions are presented which may be correct when the instructions are considered as a whole.</p> <p>Appeal — Preservation of Grounds — Objections to Evidence. If an answer to a question contains improper matter or is not responsive to the question, it is necessary to ask that the court strike it, and a mere objection to the question does not raise any question for review on appeal.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Albertson, J., entered May 27, 1912, upon findings in favor of the plaintiff, in an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered August IT, 1912, appointing a receiver of a corporation.</p>

<p>Trusts — Establishment—Evidence—Sufficiency. The evidence is insufficient to establish a trust in tide lands, where it appears that partners, theretofore equally interested therein, had a full settlement and by written agreement dissolved all their relations, one partner at the same time executing to the other an absolute assignment of all his interests in the lands, after which he exercised no control over them and made no claim thereto for nearly ten years during the lifetime of the other, nor to moneys known to have been received from sales, and filed no claim therefor against his estate.</p> <p>Limitation of Actions — Recovery of Real Estate — Trusts. An action to recover from the widow of plaintiff’s former partner an undivided half of real estate as to which plaintiff claimed an equitable interest, is an action to recover real estate, and not to establish a trust, nor barred by the statute of limitations relating thereto.</p> <p>Trusts — Establishment—Evidence—Sufficiency. Findings that property was held in trust for the plaintiff are sustained, whore it appears that a mortgage was held in trust for him and that he caused the same to be foreclosed, and the title acquired by foreclosure was thereafter taken and held by plaintiff’s attorney, his former partner and friend, and held as security for taxes and assessments paid, the plaintiff being financially embarrassed; it appearing from a notation in the attorney’s docket in his handwriting that the mortgage liens were being foreclosed for the plaintiff.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered August 3, 1911, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.</p>

<p>Waters and Water Courses — Public Lands — Irrigation Ditches —Appropriation—Priorities. Under U. S. Comp. Stat. § 2339, recognizing the right to construct irrigation ditches over the public domain, and conferring vested rights therein, and § 2340, providing that patents granted shall be subject to vested and accrued rights in the ditches, the right to appropriate a right of way for a ditch is acquired, where the ditch was under construction but not completed at the time a lieu land selection was ms.de, the owner of the ditch having a reasonable time thereafter to complete it, although he did not file any map of location; since 26 Stat. at L. p. 1102, § 19, providing for the appropriation of rights of way for irrigation ditches by the filing and approval of a map of location of the ditch and reservoir, has no application to such a case.</p>

<p>Appeal — Review—Harmless Error — Instructions. An instruction assuming a fact not in evidence, while faulty, is not prejudicially erroneous where the only purpose and meaning that it would naturally convey was to cover a general principle, and was without prejudice in view of the controlling issue of fact discussed in the next instruction.</p> <p>Municipal Corporations — Streets—Ordinances—Speed Limit— Construction. An ordinance fixing the speed limit for automobiles on “paved” streets applies to a street that is “planked,” the term “paving” including any artificial surface that changes the natural surface.</p> <p>Appeal — Review — Harmless Error — Instructions. Where an automobile was confessedly exceeding the city speed limit of twelve miles an hour, and the only issue was as to whether it struck the plaintiff, it is harmless error to instruct that the driver was negligent if he was exceeding the speed limit, stated at eight miles an hour, and that it was plaintiff’s duty, as a policeman, to arrest the driver if he was exceeding the speed limit.</p> <p>Same. In an action for personal injuries sustained by a policeman struck by an automobile, an objection that an instruction assumed that he was standing at a street intersection, when he was three or four feet therefrom, is hypercritical, especially since he had a right to be in the street, and there was no issue as to the speed of the automobile.</p> <p>Same. In an action for personal injuries sustained when defendant’s automobile struck the plaintiff, an instruction to the effect that the acquittal of the driver on a charge of exceeding the speed limit precluded his arrest on another criminal charge is harmless, where the jury were plainly told that it could not be considered in the civil case.</p> <p>Damages — Personal Injuries — Reduction — Pension. A police pension, under Rem. & Bal. Code, § 8078, being in the nature of accident insurance for which consideration is paid by deduction from the officer’s monthly pay, does not reduce the damages which the officer may recover for personal injuries negligently inflicted upon him.</p> <p>. Damages — Personal Injuries — Excessive Verdict. A verdict for $4,500 for personal injuries sustained by a policeman struck by an automobile, is excessive, and should he reduced to $3,000, where it appears that he sustained a partial dislocation of the shoulder, an injury to the right knee and a bruised back, and the injury, while painful, was not permanent.</p>

, entered December 7, 1911, in favor of the plaintiffs, requiring the payment of money into court to liquidate taxes accruing pending a new trial on the issue of damages in a condemnation proceeding.

<p>Appeal — Preservation oe Grounds — Objections to Evidence. Error cannot be assigned upon refusing to strike an answer as not responsive to the question, where the only objection made was a motion to strike the answer without assignment of any reason, the answer being competent evidence.</p> <p>Witnesses — Competency — Values — Market Value. A witness, testifying as to the value of his own timber, may state what it was selling for in the market at the time in question, although he admitted lack of definite knowledge as to the market value of timber.</p> <p>Trespass — Damages—Evidence—Sufficiency. There is sufficient evidence of the value of timber cut to sustain a verdict for $145, where plaintiff’s evidence that the amount cut at the market value exceeded that sum and that it was worth at least $145 was not contradicted.</p> <p>Same. A verdict for $30 damages to land by the cutting of timber is sustained by evidence that it would cost $75 to $100 to remove the brush and debris left upon the land by defendant.</p> <p>Appeal — Review—Verdict. A verdict sustained by competent evidence will not be disturbed because of conflicting testimony.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered November 11, 1911, upon sustaining a demurrer to the complaint, dismissing an action for equitable relief.</p>

, entered April 23, 1912, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered January 25, 1912, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in consolidated actions to •enforce mechanics’ liens.

<p>Wills — Execution — Capacity —Undue Influence — Evidence— Sufficiency. Findings that, of several wills executed by an Indian woman, the first was entitled to probate as the only will speaking her free and uncontrolled mind, are sustained where it appears that such will expressed her wishes when she was uncontrolled by others, but after its execution her husband died, and she weakened materially in body and mind and made numerous and greatly varying dispositions of her property, readily yielding to and adopting any suggestions that were made to her, the last will being made two days before she was declared mentally incompetent.</p>

, entered July 1, 1912, in favor of the plaintiffs, in an action to set aside a deed, denying relief on a cross-complaint for attorney’s fees for services rendered in the action, after a trial on the merits to the court.

, entered December 30, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an off-bearer in a sawmill.

, entered April 27, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee engaged in construction work.

<p>Eminent Domain — Judgment — Conclusiveness — Res Judicata. Under Rem. & Bal. Code, § 7820, providing that the compensation for property taken or damaged by a city may be determined by condemnation proceedings after the property was taken or damaged, the damages are not limited to those which might have been ascertained in advance of the improvement; hence a judgment therein is res judicata and a bar to a subsequent recovery for damages to abutting property by reason of negligence in making the improvement, which was, or might have been, litigated in the condemnation proceedings.</p>

<p>Master and Servant — Injuries to Servant — Negligence — Unsafe Methods of Work — Evidence—Sufficiency. There is sufficient evidence of negligence in adopting an unsafe method of removing concrete forms from piers, where, as the work progressed and the top of the piers narrowed, the same long timbers were used to hold the forms as were used at the base, the necessary support of one of the rods embedded in the concrete was removed by the narrowing of the pier, and there was evidence that no block or tackle or other necessary appliance to support was provided by the engineer in charge prior to ordering men to go upon and remove the same, and the projecting timbers unnecessarily added to the weight and augmented the dangers.</p> <p>Same — Assumption of Risks — Contributory Negligence — Question for Jury. In such a ease, a workman does not assume the risks, and is not guilty of contributory negligence, as a matter of law, where in going upon the forms, he acted in obedience to a direct order of the foreman in charge, and had no particular knowledge of the tensile strength of the rods supporting the forms, and performed the work as it had theretofore been done while four rods in the cement formed the support, without any knowledge, or means of observing, that, for the first time in the progress of the work, only three rods were embedded in the cement to support the forms.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $9,750, for personal injuries sustained by a bridge carpenter, 31 years of age, in a fall from a high pier, is not excessive, where the bones of one leg and ankle were shattered, muscles were torn away and removed, a rib was fractured, resulting in adhesion of the serous membrane of the lung cavity and interference with respiration and inducing painful recurrence of a pleuritic condition, the condition being permanent.</p>

<p>Municipal Corporations — Ordinances—Title—Sufficiency. An amendment setting out an ordinance in full is not an amendment by reference to the title merely, and the title is sufficient where it contains well chosen words suggestive of the subject treated without going into details.</p> <p>Municipal Corporations — Charters-—Ordinances-—Repeal—Saving Clauses. Section 119, Spokane City Charter, saving ordinances in force at the time of its adoption, changing to a commission form of government, continues in force an ordinance regulating city stables, which provided for a hearing by the “board of public works,” although the new charter abolished the board, since the new charter substituted the commissioner of public works for the board that was abolished.</p> <p>Municipal Corporations — Ordinances — Retroactive Effect— Criminal Prosecution. In a prosecution for violating an amended ordinance regulating the keeping of city stables, it is no defense that the act was not retroactive and could not affect defendant if he was using the stable prior to the enactment of the amendment, where it appears that he had been violating the original ordinance prior to its amendment, and continued to violate the amended ordinance for one month after its passage.</p>

<p>Bankruptcy — Sales—Discharge oe Liens — Lien on Proceeds. The bankruptcy court may order a sale of the property of the bankrupt free and clear of all incumbrances, which will free the title of a mechanics’ lien and transfer the lien to the proceeds, to which the lienholder must resort.</p> <p>Same — Sales—Presumptions. A sale ordered by a bankruptcy court acting with jurisdiction will be presumed regular in the state courts.</p>

<p>Appeal from a judgment, of the superior court for Spokane county, Hinkle, J., entered March 29, 1912, upon a trial and conviction of violating a city ordinance relating to weights and measures.</p>

<p>Telegraphs and Telephones — Messages — Actions—Damages— Contributory Negligence — Evidence—Sufficiency». In an action against a telegraph company for erroneously transmitting a message from plaintiff’s agent for the purchase of two lots of sheep at $4.70 for January delivery and $5.00 for February delivery, so that the message delivered read $4.20 for January delivery, the contributory negligence of the plaintiff in instructing purchase of the sheep without having the message repeated or being put on inquiry by the discrepancy in the prices, is for the jury, where it appears that the plaintiff had but recently refused an offer at $4.70, there was evidence that the market price for January delivery was $4.25, and the January sheep would be grass fed, while there would be considerable expense attached to keeping over the February lot.</p> <p>Same — Measure of Damages. The measure of damages for erroneously transmitting a telegram from plaintiff’s agent that a lot of sheep could be purchased at $4.70 per hundred, so as to read $4.20, whereby they were purchased for use in plaintiff’s wholsesale butcher business, at the higher price, which exceeded the market price, is the difference between the price paid and the market price, and not the amount of plaintiff’s loss, if any, on the purchase.</p> <p>Evidence — Market Value — Sufficiency. In an action for erroneously transmitting a telegram as to the purchase of sheep, thereupon bought for plaintiff, evidence of the market price in Montana at a certain time is sufficiently established where both plaintiff and his manager testified, without contradiction, that the market price there was fixed hy the prices in Chicago and Portland, less freight, shrinkage, and expenses, amounting to about one dollar per hundred, that, while they could not recall the exact prices on the day in question, it was about $5.25 in Chicago and Portland, as they on that day made an offer of $4.20 in Montana which they estimated to be slightly under the market price.</p>

<p>Corporations — Stock — Ownership — Sales — Evidence — Suhbtciency. In an action to recover tlie possession of corporate stock, held by the sheriff under attachment as the property of S., the evidence is insufficient to support plaintiff’s claim of title by purchase from S., where it appears from her testimony that she paid for the stock in bills, received from time to time by mail from her father, during several months, and kept on her person until she had accumulated $2,300, her memory was very faulty and her story improbable, and it appears that she and S. sustained confidential relations to one another, that the stock was held as collateral for the note of S., who sought its release, refusing all cash offers, and finally traded in some real estate, causing the stock to be transferred to plaintiff, whereupon they both left the state, there being many other sidelights on the story giving it the appearance of untruth.</p>

<p>Municipal Corporations — Improvements — Water Works — Proceedings to Establish. A city may adopt a plan for obtaining a water supply outside of the city without providing for a distributing system within the city, under Rem. & Bal. Code, § 8005, authorizing a city to construct, acquire, or add to water works, within or without its limits, for the purpose of furnishing an ample supply of water, and § 8006, requiring it to adopt the system or plan proposed and submit it to the qualified electors; and the submission is not affected by the fact that the ordinance adopting the supply system also stated that it was further proposed that the supply plant would be connected with a distributing system within the city limits to be constructed by local assessments on property benefited.</p> <p>Same — Submission to Voters — Validity. Under Laws 1911, p. 443, § 8 and p. 451, § 19, authorizing any local improvement to be initiated directly with the council, without submission to the voters, whose decision is final, a resolution creating a local improvement district for a distributing system for water works is valid, although prior to a special election called to authorize the acquisition of a supply system outside of the city which it was intended to connect with the distributing system.</p> <p>Same — Submission to Voters — Sufficiency. The submission to the voters of a plan to acquire a supply system for proposed water works, without submitting a plan to connect the supply with a distributing system to be constructed in the city by local assessments upon property benefited, is not an evasion of the requirement that the whole plan be submitted to the voters, where the two systems were to be constructed separately and paid for by different methods, and all the voters understood that the proposed supply was to be connected with a distributing system thereafter constructed.</p> <p>Same — Special Assessments — Benefits — Objections. Under Laws 1911, p. 444, § 10, the objection that a distributing system for water works constitutes a general benefit to the city and is of no special benefit to property, can only be urged to the city council on a hearing upon the assessment roll.</p> <p>Same — Contracts—Payment in Bonds — Notice. Where calls for bids for the construction of water works had to be submitted on forms-furnished by the engineer, which specified that payments may be made by delivering bonds at par, contractors are sufficiently notified of such, provision for payment; and failure to give notice would be a mere irregularity not affecting tbe validity of tbe contracts.</p> <p>Same — Contkacts—Validity—Resebve Fund. Tbe city council having piovided by ordinance that a reserve fund of twenty-five per cent be withheld from contractors constructing water works, may afterwards waive the condition and contract for a reserve fund of but fifteen per cent.</p>

<p>Principal and Surety — Notice of Default — -Waiver. Failure to give notice of default, within the time required in a surety bond guaranteeing a building contract, is waived, where no prejudice from the delay appears, and, when notice was given to the general agent who executed the bond, he instructed the obligee to complete the work at the expense of the surety company.</p> <p>Same — Conditions of Contract — Limitations—Waiver. A surety company cannot assert that suit on the bond was not commenced within the time limited in the bond, where the action was delayed at its request.</p> <p>Same — Conditions of Contract — Payments—Waiver. A surety company cannot assert that it was injured by a payment to the contractors after they had defaulted, where the sum was paid to the receiver of the contractors at the request of the surety company.</p> <p>Interest — Accrual—Commencement of Action. Interest is recoverable, in an action on a surety bond, guaranteeing a building contract, from the time the suit was filed.</p>

, entered April 15, 1912, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, in an action for personal injuries.

<p>Appeal by defendants from a judgment of the superior court for Spokane county, Yakey, J., entered June 22, 1912, upon the verdict of a jury awarding damages in a proceeding to condemn land for railroad purposes.</p>

<p>Applicatipn filed in the supreme court April 2, 1913, for a writ of prohibition to the superior court for King county, Humphries, J., to prevent the enforcement of an order in contempt proceedings.</p>

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

, entered June 17, 1912, upon findings. in favor of the plaintiff, after, a trial on the merits before the court, in an action for a writ of mandamus to compel the issuance of a warrant in payment of a judgment in condemnation proceedings.

, entered June 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 an indemnity bond.

, entered May 15, 1912, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a tax lien.

<p>Appeal from a judgment of the superior court for Columbia county, Neill, J., entered September 2, 1912, upon a verdict of a jury rendered in favor of one of the defendants, in an action on contract.</p>

, entered June 7, 1911, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a promissory note.

, entered November 18, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a carpenter in a fall from a scaffold.

, entered March 13, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to recover real property.

<p>Executors and Administrators — Rights of Administrator and Legatees — Assignment of Legacy. An administratrix with, the will annexed may purchase, with her individual funds, the interests of the residuary legatee, and the assignment thereof is not fraudulent as to the other legatees by reason of her relation to the estate, when she did not use the money of the estate to obtain a pecuniary advantage or to perpetrate a fraud upon the rights of the other legatees.</p> <p>Wills — Estoppel to Attack — Election — Accepting Benefits. Beneficiaries of specific legacies under a will accepting tlieir legacies under an order of distribution thereby elect to take under the will, and cannot contest the provisions of the will under which the residuary estate is distributed.</p> <p>Executobs and Administbatobs — Distkibution—Conclusiveness. Beneficiaries under a will who took no exceptions or appeal from an order approving a settlement and discharging an administratrix with the will annexed are precluded from attacking the acts of the administratrix in settling the estate.</p>

, entered January 9, 1912, upon the verdict of a jury rendered in favor of the plaintiff for $30,000, for personal injuries sustained by a painter in a fall from a scaffold.

, entered December 28, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by an automobile.

<p>Appeal from a judgment of the superior court for Franklin county, Holcomb, J., entered March 12, 1912, upon findings in favor of the plaintiff, in an action to foreclose a lien for water charges.</p>

, entered April 30, 1912, in favor of the defendants, after a trial before the court, in an action for equitable relief.

, entered December 11, 1911, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on contract.

, entered March 8, 1912, upon granting a nonsuit, dismissing an action for personal injuries sustained by an employee in a roundhouse.

, entered February 7, 1912, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a maritime lien.

<p>Master and Servant — Regulation—Workmen’s Compensation— Premiums — Method oe Computation — Statutes — Construction. Contractors liable to a city for premiums due under tbe workmen’s compensation act are not prejudiced by the fact that the city failed to collect in advance the initial payment to the accident fund, due Oct. 1, 1911, as estimated on their pay rolls for the three preceding months, and subject to final adjustment at the end of the year, but waited until the amount was fixed and made certain by the actual pay rolls during the period for which the contractors were liable; since the amount of the premiums was the same under either method of computation after final adjustment.</p> <p>Same — Premiums — Collections by City — Statutes—Construction. A city is entitled to collect from its contractors, engaged in extra hazardous work, the amount which it is obligated to pay to the accident fund, under the workmen’s compensation act, where the act provides that it is applicable to extra hazardous work engaged in by the city, that payment shall be made from the treasury of the city, that the pay roll of the contractor shall be the basis of the computation, and that the municipality shall he entitled to collect from the contractor the full amount paid to the accident fund.</p> <p>Same. The act not providing in what manner the collections may he enforced, the city can collect by withholding the amount due the contractor; since the obligations were in equal degree, authorizing a balancing of accounts.</p> <p>Constitutional Law — Impairing Contract Obligations — Master and Servant — Regulations—Workmen’s Compensation. The workmen’s compensation act being valid as an exercise of the police power, it is not unconstitutional as impairing the obligation of existing contracts; since all contracts are subject to the police power.</p>

<p>Replevin — Action on Bond — Depreciation in Value — Evidence —Sufficiency. In an action on a redelivery bond in replevin, the jury is warranted in finding that machinery delivered to a sand and gravel company was not in substantially as good condition twenty-seven months thereafter, where there was evidence that it was used to a large extent during that period, and exposed to the elements to a considerable extent and was very much worn.</p> <p>Same — Return op Property — Depreciation in Value — Alternative Judgment — Satisfaction. The plaintiff in replevin, upon recovering judgment for the return of the property, or its value if it cannot be returned by defendant, who retook under a redelivery bond, is entitled to its return in substantially as good condition as when delivered to the defendant, under Rem. & Bal. Code, § 711, although the statute docs not in terms require its return in such condition; in view of Id., § 434, authorizing either party to insist upon a judgment in the alternative for a return or its value to be determined by the judgment; hence a return in substantially worse condition than when received, if refused, is not a pro tanto satisfaction of the judgment for its value.</p> <p>Pleading — Departure—Reply. In an action on a redelivery bond, the complaint alleging a failure to return the property and the answer setting up a tender of such return, it is not a departure in pleading for the reply to admit the tender and allege that the tender was refused owing to depreciated value of the property while in defendant’s possession.</p>

<p>Appeal from a judgment of the superior court for Spokane ■ county, Kennan, J., entered August 15, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a laborer struck by a falling rock.</p>

<p>Appeal from judgments of the superior court for What-com county, Kellogg,. J., entered April 19, 1911, upon a trial and conviction of violations of the local option law.</p>

<p>Appeal from a judgment of the superior court for Benton county, Holcomb, J., entered June 26, 1912, upon a trial and conviction of adultery.</p>

<p>Master and Servant — Injury to Servant — Fellow Servants— Vice Principal — Question por Juey. In an action for injuries to an employee through, the negligent act of another employee, whether the latter was a vice principal or a fellow servant is for the jury, where the evidence as to his duties as a foreman in charge of the work was in direct conflict.</p> <p>Same — • Negligence op Foreman — Vice Principal — Details op Work. Where a foreman directed an employee to stand upon a brace, and then without warning loosened the brace and directly caused his fall and injury, his act is not a mere detail of the work of a fellow servant, hut the positive act of a vice principal for which the master is liable.</p> <p>Same — Negligencet—Saee Place. The rule of nonliability for the fall of temporary scaffolds when erected by the men does not apply to a case where a foreman in charge of the erection of concrete forms directed an assistant in the work to stand upon a brace, and then without warning and by his positive act loosened the brace and caused the employee to fall.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $12,500 for injuries sustained by a robust man, 34 years of age, earning four dollars a day, is not excessive, where he suffered an injury to the spine which experts testified would be permanent and result in total paralysis of the lower limbs.</p>

, entered April 9, 1912, in favor of the defendants, after a trial on the merits before the court, in an action for an accounting.

<p>Appeal — Review—Veedict. A verdict on conflicting evidence will not be disturbed on appeal if every material issue is supported by the evidence.</p>

<p>Appeal from a judgment of the superior court for Spokane county, D. W. Hum, Esq., judge pro tempore, entered January 19, 1912, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for rescission and other equitable relief.</p>

<p>Appeal from a judgment of the superior court for Eng county, John S. Jurey, Esq., judge pro tempore, entered November 4, 1911, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in consolidated actions to foreclose mechanics’ liens.</p>

, entered June 18, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to vacate sales of personal property.

<p>Appeal from a judgment of the superior court for Spokane county, Yakey, J., entered April 26, 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 by a pedestrian struck by an automobile.</p>

, entered October 3, 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 sand and gravel plant.

<p>Corporations — License Fees — Right op Action — Statutes—Construction. A corporation having no capital stock is not required to pay an annual license fee as a condition precedent to bringing an action, under Rem. & Bal. Code, § 3714, providing that every corporation incorporated under the laws of this state shall pay the following annual license fees: “Every corporation having a capital stock, fifteen dollars,” and § 3715, providing that no corporation shall commence any suit without alleging and proving payment of its license fee last due; since the amount of the fee for such corporation is not fixed by law, and therefore cannot be demanded.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered May 16, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action by a trustee in bankruptcy to recover the value of property transferred to creditors.</p>

<p>Compromise and Settlement — Receipt—Impeachment—Evidence —Sufficiency. A receipt in full of all demands, passed upon a payment made when the parties had come together for the purpose of arriving at a complete settlement of their affairs, is not sufficiently overcome by parol evidence, where there was nothing to show fraud, overreaching, mistake or other like facts to destroy the effect of the language used, there was direct conflict in the testimony, and the position of the party having the burden of proof was improbable.</p>

<p>Corporations — Foreign Corporations — Actions—Service of Process. The statute authorizing service of process upon the statutory agent of a foreign corporation is only cumulative, and service may be made under the general statute.</p> <p>Same — Service of Process — “Any Agent.” Under Rem. & Bal. Code, § 226, authorizing suit against a foreign corporation by service of process upon “any agent, cashier or secretary thereof,” service may be made upon any agent having representative authority, e. g., an agent having sole charge of defendant’s warehouse during the absence from the state of its statutory agent and resident manager, empowered to ship out and receive freight, make out shipping bills, sell goods and solicit orders; “agents” not being limited to agents of the class of “cashier or secretary.”</p>

<p>Application filed in the supreme court March 24, 1913, for a writ of mandate to compel the superior court for King county, Humphries, J., to proceed with the trial of a cause.</p>

<p>Municipal Corporations — Consolidation—Property—Liabilities. In tbe absence of statutory regulation, upon tbe annexation of a city, tbe property and assets of tbe merged city become tbe property and assets of tbe other, free from any trust to apply it in payment of .debts upon sucb property; and Rem. & Bal. Code, § 7459, providing tbat no property witbin either of tbe consolidated cities shall be taxed to pay any portion of tbe indebtedness of either, contracted prior to consolidation, does not impress tbe property with any sucb trust.</p> <p>Same-^-Limitation of Indebtedness — Deduction of Cask Assets. The constitutional limitation- upon municipal indebtedness of one and one-half per cent of the assessed valuation, is to be determined by deducting cash assets, such as money on hand and taxes due.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered June 5, 1912, in favor of the defendants, after a trial on the merits before the court, in an action to cancel an assessment for a local improvement.</p>

, entered December 18, 1911, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action in tort.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered April 20, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by the driver of an automobile, and damages to the machine, by reason of an excavation in a street.</p>

, entered January 3, 1912, in favor of the plaintiff, after a trial on the merits before the court, in an action for an accounting.

, entered June 7, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through an explosion of blasting powder.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered December 23, 1911, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action in tort.</p>

, entered April 22, 1912, in favor of the plaintiff, adjudging a public use and' awarding damages in proceedings to condemn land for street purposes, after a trial before the court and a jury.

<p>Appeal — Review—Findings. On a trial de novo on appeal, tlie supreme court must examine the evidence and determine wbat findings should have been made.</p> <p>Mortgages — Foreclosure — Release — Evidence—Sufficiency. In an action to foreclose a mortgage, findings that a quitclaim deed was given with intent to release the mortgage lien are not sustained by the evidence, and it is error to deny a foreclosure of the mortgage, where it appears that plaintiff, a married man, sold and conveyed the property to defendants by a deed in which his wife did not join, it being separate property, and claimed tbat tbe quitclaim deed, in which bis wife joined, was given only to assure tbe title; and defendants’ testimony tbat it was intended as a release of tbe mortgage, to prevent plaintiff’s wife from claiming any interest in tbe property, is unreasonable and improbable and inconsistent witb statements made by tbe defendants to several disinterested witnesses.</p> <p>Equity — Mistake—Release oe Mortgage. Where a quitclaim deed is given by a mortgagee for tbe purpose of curing a former deed, without intent to have it operate as a release of tbe mortgage lien, there is such a mistake as a court of equity will relieve.</p>

<p>Appeal — Briefs—Assignment of Errors. Where an appeal has been regularly placed on the docket and called for hearing, and appellant has filed no brief, assigned no errors, and presented no oral argument, the appeal will be dismissed.</p>

, entered January 9, 1912, in favor of the defendant, confirming an assessment for a local improvement on appeal from an order of the city council, after a hearing on the merits before the court.

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

, entered March 26, 1912, dismissing an action for equitable relief upon the ground of fraud, upon default in failing to reply to affirmative defenses.

<p>Appeal from a judgment of the superior court for Spokane county, Clifford, J., entered May 3, 1912, upon findings in favor of the defendants, in an action to restrain an execution sale.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered August 24, 1912, dismissing an action for damages for breach of contract, upon sustaining a demurrer to the complaint.</p>

<p>Pibes — Destruction of Property — Contributory Negligence — Instructions. In an action for negligently setting fire to stables and destroying plaintiff’s horses, it is error to instruct the jury on the subject of plaintiff’s contributory negligence in using the stable with knowledge of the danger, that plaintiff only assumed the dangers which were known to him, without reference to dangers of which he should have known by the exercise of reasonable care, and to refuse an instruction that plaintiff could not recover if he was aware of the danger or knew, or should have known of the danger, and left his property exposed thereto.</p> <p>Same — Liability for Negligence — Defenses—Contributory Negligence — Knowledge Of Danger — Question for Jury. Knowledge of danger from fire to which one’s property is exposed, does not of itself constitute contributory negligence as a matter of law; but it is for the jury to say, as a matter of fact, whether due caution was used commensurate with such knowledge.</p> <p>Assignments — Rights Assignable — Action for Tort. A right of action for negligently setting fire to and destroying property is assignable.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered August 29, 1912, dismissing an action for specific performance, after a trial on the merits.</p>

, entered February 8, 1912, upon granting a nonsuit, dismissing an action for personal injuries sustained in a collision with a street car.

, entered July 8, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through the explosion of a blast left by a contractor on street improvement work.

, entered March 7, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a policy of accident insurance.

, entered May 31, 1912, upon findings in favor of thé plaintiff, in an action to foreclose a trust deed securing negotiable bonds.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered October 29, 1912, upon findings in favor of the plaintiff, upon a policy of indemnity insurance.</p>

, entered May 23, 1912, upon the verdict of a jury rendered in favor of the plaintiff for $1,500, in an action for personal injuries sustained by an offbearer in a sawmill.

<p>Mechanics’ Liens — Notice — Materialmen — Duplicate Statements — Subcontractors. Rem. & Bal. Code, § 1133, requiring all persons furnishing materials to be used in the construction of a building to deliver to the owner duplicate statements of the materials, applies to a subcontractor furnishing the materials for installing a furnace; and without delivery of such statements, he cannot claim a lien, except for work done that can be segregated.</p> <p>Same — Duplicate Statements — Failure to Furnish — Excuses. A lumber company furnishing the lumber for the construction of a building is not relieved from the necessity of furnishing duplicate statements to the owner, under Rem. & Bal. Code, § 1133, by reason of the fact that the owner lived upon the premises and was working on the building a portion of the time.</p> <p>Same — Foreclosure—Attorney’s Fee — Appeal. Where an attorney’s fee of $150 was allowed upon foreclosing a mechanics’ lien for $845, upon reversing the case for error in allowing a nonlienable item of $695, the attorney’s fee will be correspondingly reduced.</p>

, entered March 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 Lincoln county, Baste, J., entered July 24, 1912, upon a trial and conviction of rape.</p>

<p>Cross-appeals from a judgment of the superior court for Lewis county, Rice, J., entered July 9, 1912, upon findings in favor of the plaintiff for damages by reason of fraud in the sale of land.</p>

<p>Insurance Policy — Mistake—Knowledge oe Agent — When Imputed to Company. Liability upon a policy of fire insurance cannot be avoided by the fact that the policy was by the agent inadvertently written in the name of the husband of the plaintiff, while the property insured was her separate property, where the agent writing the policy had knowledge of the true ownership, acquired almost simultaneously with the writing of the policy.</p> <p>Insurance — Policy—Mistake—Reformation. Reformation of a policy of insurance will be decreed, where by the inadvertent mistake of the agent, having full knowledge of the facts, a policy upon the separate property of the wife was issued in the name of the husband, and the company was paid and retained the premiums.</p> <p>Appeal — Review—Harmless Error — Issues and Proof. In the absence of a claim of surprise, a judgment treating a policy of insurance as reformed to correct a mistake, by allowing recovery thereon by the wife, although the policy was issued to the plaintiff, is not error, where evidence was admitted at the trial warranting the reformation, although it was not pleaded, especially where there was no showing of prejudice; since the policy could be enforced without reformation on the ground that the husband took it as agent or trustee of his wife.</p>

<p>Indictment and Information — Language of Statute — Sufficiency. An information charges the statutory offense of contributing to the delinquency of a child, in the language of the statute, or in words of similar import, and is there sufficient, where it alleges that the child was a delinquent child and a lewd and dissolute person who associated with vicious and disreputable persons, and that the accused willfully encouraged, caused and contributed to her delinquency by enticing and encouraging her to drink intoxicating liquors, and consort with immoral persons and committed an act of sexual intercourse with- the accused.</p> <p>Criminal Law — Trial—Jurisdiction—Criminal or Juvenile Department. A prosecution for contributing to the delinquency of a child, under Rem. & Bal. Code, § 2004, is properly tried in the criminal and not the juvenile department of the superior court, where there is nothing to indicate that the accused was a juvenile.</p> <p>Lewdness — Contributing to Delinquency of Child — Evidence— Sufficiency. In a prosecution under Rem. & Bal. Code, § 2004, for contributing to the delinquency of a delinquent child, the prior delinquency of the child is sufficiently shown by proving that she was a lewd and dissolute person, and associated with immoral and disreputable persons.</p>

<p>Judgment — Bar — Res Judicata — Matters Concluded. A judgment upon the verdict of a jury in condemnation proceedings to assess the damages by reason of a change of street grade, is res judicata and a bar to an action for damages to abutting property by reason of negligence and delay in doing the work, where such negligence and delay had occurred prior to the prosecution of the condemnation suit, and was or might have been considered in that suit.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered February 7, 1913, dismissing an action to restrain an executor’s sale, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered February 16, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in railroad construction work.</p>

<p>Appeal from an order of the superior court for Spokane county, Neill,' J., entered April 17, 1912, dismissing a special assessment proceeding.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered May 23, 1912, upon a trial and conviction of violating a city ordinance.</p>

Application filed in the supreme court February 14, 1912, for a writ of mandamus to compel the superior court for King county, Gilliam, J., to exercise jurisdiction in certiorari proceedings.

, entered April 20, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to determine the title to mining claims.