Volume 74 — Washington Reports

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered July 8, 1912, dismissing an action to compel the issuance of a saloon license, after a trial on the merits.</p>

<p>Municipal Corporations — Improvements—Petition — Signatures —Jurisdiction to Order Improvement. That an initiatory petition for an improvement was not signed by a majority of the property owners, as required by the city charter, is not a jurisdictional defect where the charter also authorized the improvement without such signatures if ordered by a two-thirds vote of the council, and the council afterwards ordered the improvement by a unanimous vote.</p> <p>Same — Proceedings—“Resolution” — Necessity. A charter provision requiring a city council ordering an improvement to direct the board of public works, “by resolution” to prepare a report, is substantially complied with by ordering such report “on motion”; there being, in substance, no difference between a resolution and a motion.</p> <p>Same — Assessments—'Validity—Prior Eminent Domain Proceedings — Necessity. The failure of a city to acquire, by eminent domain proceedings, the right to change the grade of a street, does not invalidate an assessment to defray the cost of making the improvement, and cannot be urged as a defense to an action to foreclose the lien of the assessment.</p>

<p>Taxation — Foreclosube — Validity—Descbiption op Lots. The fact that property was assessed on the tax rolls as in Squire city instead of in the town of Springdale, to which the name had been changed by legislative act, does not invalidate tax foreclosure proceedings, as against one who took the property by deed describing it as located in “Springdale, formerly Squire City.”</p> <p>Same — Summons—Name of Owner. A general county tax foreclosure being a proceeding in rem, it is immaterial, if the property is properly described, what name or names of the owners are used in the notice. ■</p>

<p>Schools and School Districts — School Funds — Investment— State Bonds. Under Const., art. 16, § 5, and Rem. & Bal. Code, § 5056, authorizing the investment of the permanent school fund in state bonds, the investment cannot be made in state capitol building bonds issued against the capitol building fund to be derived from the sale of the capitol lands, unless the general credit of the state is lawfully pledged to the payment of the principal and interest of the bonds.</p> <p>States — Bonds—Validity—State Debt — Limitation—Submission to Vote. Laws 1913, p. 139, § 2, and Laws 1911, p. 323, § 5, providing that the state shall guarantee the principal and interest of the capitol building bonds to be issued against the capitol building fund, pledges the general credit of the state therefor, and hence involves the incurring of a state indebtedness in violation of the prohibition of the Const., art. 8, §§ 1-3; since the bonds provided for exceed the limitation of $400,000, specified in § 1 for certain indebtedness, and do not fall within § 2 authorizing indebtedness to repel invasion and defend the state in war, and were not authorized by a vote of the people as required by § 3 in the case of all other state indebtedness.</p> <p>Same — State Indebtedness — Assets — Oeeset. Where the state pledged its general credit for the payment of capitol building bonds to be paid from future sales of the capitol lands, the ascertained value of the capitol lands cannot be offset against the state obligation upon its pledge for the purpose of showing that the state had not in fact incurred any real indebtedness.</p>

Appeals from judgments of the superior court for King county, Ronald, J., entered February 14, 1912, in actions to rescind a purchase of land and to foreclose a mortgage, after a trial on the merits to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Bell, J., entered February 24, 1912, upon findings in favor of the plaintiff, in quo warranto, after a trial on the merits.</p>

, entered April 15, 1912, upon sustaining a challenge to the sufficiency of the evidence, dismissing an action for personal injuries sustained by a common laborer in railroad construction work.

, entered October 31, 191&, denying an application for the modification of a decree of divorce, as to provisions for the support of a child.

<p>Trial — Misconduct op Counsel — Statements Outside Record— Palr Trial. The repeated use by counsel of abusive language charging appellant with theft and fraud, not supported by anything in the record, and tending to prejudice the minds of the jury, deprives the party of a fair trial, and the error is not cured by instructing the jury to disregard the statements of counsel.</p> <p>Trespass — Cutting Timber — Treble Damages — Casual or Involuntary Trespass — Instructions. In an action for trespass for wilfully cutting timber, it is error to instruct that, if defendant removed down timber after notice to cease cutting and removing it, his acts as to such timber were voluntary and intentional; and to refuse to instruct that such removal, if done to save as much loss as possible, would not be evidence that the original trespass was wilful. ,</p>

<p>Contracts — Conditions—Specifications. Conditions in specifications attached to a contract declaring that the contract is made subject thereto,,are part of the contract, where they were understood by the parties at the time of entering into the contract.</p> <p>Highways — Construction-—Contracts—Umpire—Interest. The fact that the state highway commissioner as such official was one of the parties to a contract for state road construction, does not preclude the parties from agreeing that he shall act as umpire in the matter of any dispute as to the meaning of any provision of the contract.</p> <p>Arbitration and Award — Decision—Interest of Umpire. An award by the state highway commissioner, named as an arbitrator in a state road contract, will not be set aside because of his official interest, where there is no showing that he acted arbitrarily or capriciously.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered December 20,1912, dismissing a proceeding in quo warranto, upon sustaining a demurrer to the information.</p>

<p>Homicide — Defenses—Insanity—Burden of Pboof. In a prosecution for murder, it is proper to instruct that the burden of proving insanity as a defense is upon the defendant to establish by the preponderance of the evidence, failing which the presumption of sanity must prevail and the defendant found guilty.</p> <p>Criminal Law — Instructions:—Preponderance of Evidence. An instruction upon the preponderance of the evidence, to establish insanity, that if the jury are unable to say that they conscientiously believe the defendant was insane, the defendant has failed to establish the defense, and that the jury must find the truth, is erroneous in requiring that the defense be established beyond a reasonable doubt, or by more than the weight of the evidence.</p> <p>Criminal Law — Evidence of Confession — Admissibility of Oral Confession.- Where a confession was written down in longhand in the presence of the defendant and read over to him and its truth acknowledged by parol, it is admissible in evidence the same as if signed by him.</p> <p>Criminal Law — Trial—Argument. A confession properly admitted in evidence may be read to the jury in the closing argument of counsel'.</p> <p>Criminal Law — Trial—Right to Open and Close — Defense of Insanity. Where the defense is insanity, the state has the right to open and close, since the main issue is his guilt or innocence, although the defendant has the burden of overcoming the presumption of sanity.</p>

, entered December 16, 1912, upon findings in favor of the plaintiff, in an action for damages for trespass and for an injunction.

<p>Husband and Wife — Community Debts — Indemnity—Nature of Wife’s Obligation. Where a mortgage was given by a husband and wife upon community property as security for the performance of a building contract entered into by the husband and his copartner, the debt was prima facie a community debt, and the obligation assumed by the wife is direct and not collateral.</p> <p>Contracts — Evidence of Damage — Certificate of Arbitrator. Where a building contract provided that if the building was completed by the owner, the affidavit of the auditor as to the cost thereof shall be taken as final between the parties, the affidavit is admissible to prove the amount of the owner’s damages.</p> <p>Mortgages — Indemnity Mortgages — Foreclosure—Parties—Necessary Parties. The foreclosure of an indemnity mortgage given by one of two partners, who was liable for the whole debt, will not be defeated for lack of parties after the debt was proven, the mortgage admitted, and no demand made that the partner be brought in as an additional party.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered December 12, 1912, dismissing an election contest for want of preliminary evidence to impeach the returns.</p>

<p>Mechanics’ Liens — Waiver—Taking Promissory Note — Payment —Statutes—Construction. Under Rem. & Bal. Code, § 1143, providing that a mechanics’ lien is not waived or discharged by the taking of a promissory note, unless “expressly received as payment and so specified therein,” a lien for installing an elevator in a building is not waived by the taking of a promissory note, under a contract which merely provided for payment “in terms of a promissory note” and which expressly reserved a lien "until final payment.”</p> <p>Actions — Premature Actions — Maturity oe Debt — Installments —Bills and Notes. In an action to foreclose a lien for installments due, as evidenced by a promissory note, judgment can be rendered only for the installments due at the time of the commencement of the action, where there was no provision that failure to meet payments as they became due would cause the entire debt to mature and become at once payable.</p>

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

<p>Libel and Slander — Criminal Prosecution — Nonresident Publishers — Statutes—Construction. Under Rem. & Bal. Code, § 2428, providing that in' criminal libel, the editor or proprietor of a book or paper published in this state shall be proceeded against in the county where the book or paper was published, and Id., § 2429, providing that “every other person” publishing a libel in this state may be proceeded against in any county where such libelous matter was “published or circulated” the last section includes editors, proprietors and publishers of books and papers published without the state and circulated within the state.</p> <p>Same — Criminal Prosecution — Venue—Nonresidents. The state has the power to define libel and punish offenders against the law within this state, although they are nonresidents and publish the libel outside of the state and circulate it in this state through the mails.</p> <p>Same. A nonresident publishing a libel as defined by our statutes and circulating it in this state, is punishable in this state, although punishment may be inflicted elsewhere for the commission of the offense in other jurisdictions.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered January 10, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages.</p>

<p>Vendor and Purchaser — Contract—Construction—Forfeiture— Independent Covenants. The vendor’s covenant to furnish water is an independent covenant and does not militate against a forfeiture clause in the contract for failure to pay taxes, interest and a maintenance fee, and default in making improvements within a specified time, where time was made the essence of the contract; especially where the maintenance fee was due before there could be any substantial failure to furnish water, or the ground prepared to receive it.</p> <p>Specific Performance — Parties Entitled — Parties in Default. Where time is the essence of the contract, specific performance will not be decreed at the suit of a vendee in default not acquiesced in by the vendor.</p> <p>Vendor and Purchaser — Rescission by Vendor — Right to Rescind — Indorsement of Notes as Collateral. The indorsement as collateral of notes given for the purchase price of land, does not prevent rescission by the vendor on the vendee’s default, where the notes were subject to withdrawal and under the control of the vendor; nor where the right to rescind, if in abeyance, was revived by withdrawal of the notes and their return to the vendee.</p> <p>Same — Right to Rescind — Set-off. The vendor is not precluded from rescinding the contract on the default of the vendee, as provided in the forfeiture clause, on an account of a set-off which the vendee wanted applied on the contract, where the claim was disputed, the vendor never agreed to make the application, the contract called for payment in “lawful money” and the vendee had also broken his agreement to fence and improve the land.</p> <p>Same — Rescission by Vendor — Acquiescence in Rescission. A. vendee acquiesced in a rescission, and cannot thereafter have a set-off applied in payment of the contract, where the vendor gave written notice of rescission and returned the notes, on the default of the vendee, who retained the notes and thereafter attempted by suit to collect the sum due on the set-off, and rested on his rights for three years until the land had trebled in value and part of it had been resold.</p> <p>Tbiae — Objections to Evidence. An objection to a summons and complaint as “irrelevant, incompetent and immaterial” does not raise the point that the signature had not been sufficiently identified.</p>

<p>Abortion — Elements of Offense — Statutes—Construction. In a prosecution for abortion under Rem. & Bal. Code, § 2448, .defining the offense as the use of any instrument or other means with intent to produce a miscarriage, when the same was not necessary to preserve life, it is immaterial whether the instruments used and inserted were the right hind, or how far they penetrated, or whether they actually caused an abortion or not.</p> <p>Witnesses — Credibility — Impeachment. In a prosecution for abortion, in which the prosecutrix testified that the accused told her that he inserted instruments for the purpose of relieving her of the child, medical testimony that she was at the time suffering from hysteria, which caused delusions and hallucinations is admissible as affecting her credibility.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered December 7, 1912, upon a trial and conviction of murder.</p>

<p>Eminent Domain — Compensation • — ■ Persons Entitled — Conveyance Pending Proceedings. A warranty deed without reservation of lands damaged by a pending condemnation, after the verdict for damages but prior to entry of judgment or payment of the award or the damaging of the property, entitles the grantee to the compensation awarded, in view of the fact that under Const., art. 1, § 16, and Rem. & Bal. Code, §§ 7783, 7784, and 7816, the condemnation is not completed or the award an enforceable demand until the entry of the last judgment and expiration of the statutory period for abandonment of the proceedings or waiver thereof.</p>

, entered March %%, 1913, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to determine title to an award in condemnation proceedings.

<p>Cross-appeals from a judgment of the superior court for King county, Tallman, J., entered January 5, 1912, in favor of the defendants, in consolidated actions to foreclose a mechanics’ lien, and for damages for breach of contract, after a trial on the merits before the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered February 7, 1913, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a fireman through the derailment of an engine.</p>

, entered September 5, 1912, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action upon an indemnity insurance policy.

<p>Appeal — Review—Pleadings—Amendments to Conform to Proof —Master and Servant — Variance. A variance between tbe complaint and proof as to tbe particular point where a runway for wheeling concrete in wheelbarrows was too narrow, will on appeal be deemed immaterial, or tbe complaint amended, where tbe evidence was admitted without objection on tbe ground of variance or claim of surprise.</p> <p>Master and Servant — Injury to Servant — Negligence—Proximate Cause — Question for Jury. Whether the narrowness of a runway for wheeling concrete in wheelbarrows, was the proximate cause of injury to a servant who fell from the runway when his wheelbarrow struck a post, is a question for the jury, where the post protruded at a right angle turn, and witnesses testified that the runway was dangerous and too narrow to make the turn around the post with safety.</p> <p>Same — Contributory Negligence — Evidence—Question for Jury. In such a case, whether the plaintiff was guilty of contributory negligence in failing to proceed a foot or eighteen inches further before attempting to make the turn, or negligently lost control of his wheelbarrow before he reached the turn, were questions for the jury, where the evidence was conflicting; especially since slight negligence in failing to gauge his distance to a nicety would not preclude a recovery.</p> <p>Same — Assumption of Risks — Obedience to Orders — Promise to Repair — Question for Jury. A servant proceeding along a narrow runway with a loaded wheelbarrow of concrete, in obedience to a direct order, does not assume the risk, where he protested against the use of the narrow runway and the foreman promised to fix it.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Baske, J., entered June 5, 1912, upon exceptions to the final account of an executor.</p>

Appeal by one of the defendants, from part of a judgment of the superior court for King county, Albertson, J., entered July 8, 1912, upon findings in favor of the plaintiffs, denying subrogation against a codefendant.

<p>Frauds, Statute of — Oral Contract of Employment — Waiver— Failure to Plead or Object to Evidence. The objection that an oral contract for employment for five years is void under the statute of frauds is waived by failing to raise it in the lower court either by pleading it as a defense or by objecting to the admission of parol evidence, or by assignment of error thereon in the superior court.</p> <p>. Evidence — Parol Evidence to Vary Writins. Where a memorandum of a sale of corporate stock recited the consideration for only one-half of the stock, sold by one party, and was clearly intended to cover only part of the transaction touching the sale by such half owner, and was incomplete oil its face, oral evidence as to the consideration for the balance of the stock purchased from another party is not inadmissible as tending to vary the terms of the writing.</p> <p>Appeal — Review—Findings. Findings upon conflicting testimony will not be disturbed when supported by the preponderance of the evidence.</p>

<p>Municipal Corporations — Improvements—Assessments—Review by Courts. In the absence of evidence that an assessment roll, as levied by eminent domain commissioners upon property benefited, was not in accordance with the. benefits received, the courts have no power to modify the assessment and charge part of the same against the general fund.</p>

<p>Appeal by defendant from a judgment of the superior court for King county, Mackintosh, J., entered October 17, 1912, awarding damages in a regrade condemnation proceeding.</p>

<p>Corporations — Stock—Subscriptions—Fraud. The fact that a subscriber to capital stock gave his note and assigned stock to an existing corporation by name, does not estop him from asserting that his subscription was fraudulently induced by representations that the company was to be subsequently formed by certain persons in whom he had confidence.</p> <p>Appeal — Review—Findings. Findings upon directly conflicting testimony will not be disturbed on appeal where the evidence does not preponderate against them.</p> <p>Corporations — Stock—Subscriptions—Fraud—Liability to Creditors. Where a stockholder was induced to subscribe for stock by the fraudulent representations of the corporation, and promptly rescinded, he is not liable to creditors for the balance due upon the stock, as he is himself a creditor and stands on an equal footing with other creditors.</p> <p>Same — Stock — Subscriptions — Fraud — Laches. Where a subscriber inquired of the vice president and agent and was informed that he was subscribing to a corporation to be thereafter formed by certain men, neither the corporation nor its receiver can complain that he was guilty of laches in not ascertaining the falsity of the representations.</p> <p>Same — Stock — Subscriptions — Fraud — Rescission — Defenses. Upon the rescission of a stock subscription for fraudulently representing that the corporation was to be formed and controlled by certain men, it cannot be shown in defense that other stock of equal value was issued to the subscriber.</p> <p>Corporations — Insolvency—Evidence. The insolvency of an insurance company is not established by the fact that it was in need of ready money to meet its fire losses, and.had no way of proceeding except by calling in its stock subscriptions, upon which only one-half had been paid.</p> <p>Corporations — Stock—Subscriptions—Fraud ■— Rescission — Notice. Where a stock subscription was induced by the fraud of the corporation, rescission may he effected by timely notice to the officers, without taking steps to withdraw from the list of stockholders, as against subsequent creditors who did not deal with the corporation on the faith of the subscription list, and had no knowledge thereof.</p>

<p>Municipal Corporations — Officers and Employees — Civil Service —Power to Abolish Office. The abolishment of .an office with several others in order to reduce the force in the interests of economy and combine the duties of several offices is not a removal from office, within the civil service rules; and hence an ordinance abolishing an office is not invalid in that the duties of the office still remained and another ordinance provided that they should be performed by a clerk engaged a part of his time in other work.</p> <p>Same — Power to Abolish Office. The courts cannot inquire into the motives of a city council in abolishing an office within the civil service rules, if the ordinance is fair on its face and does no violence to any provisions of the charter or law.</p> <p>Same — Good Faith. An ordinance abolishing an office in order to reduce the force is not shown to have been passed in bad faith by the fact that the clerk upon whom the duties devolved received an increase in salary and was not able to keep up with his work, nor by testimony tending to show that the head of the department affected acted in bad faith; especially where the ordinance at the same time abolished four other positions and reduced the working force by five men.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered January 31, 1913, upon findings in favor of the relator, in mandamus proceedings.</p>

<p>Contracts — Construction—Evidence—Sueeiciency. A settlement agreement between a failing debtor and a trustee for creditors whereby the trustee agreed to get assignments of the claims, held, on conflicting evidence, to cover only merchandise claims, where the debtor’s attorney objected to the only claim other than merchandise claims as having been paid and being “for rent.”</p> <p>Contracts — Perbormancb ob Breach. A settlement agreement between a failing debtor and a trustee for creditors whereby the trustee agreed to secure assignments of all merchandise claims, is substantially performed, where it appears that there were claims of more than forty creditors residing in many states aggregating $12,000, and assignments were procured of all claims except one for $366.67 which was procured by wire during the progress of the trial, and one for $48 the amount of which was tendered and paid into court.</p> <p>Contracts — -Mutuality. A settlement agreement between a failing debtor and a trustee for creditors is not lacking in mutuality, where it appears that it was agreed that the trustee should obtain assignments of the merchandise claims, and that pending bankruptcy proceedings should be dismissed and the debtor put in possession of the stock of goods, which was done.</p>

<p>Husband and Wipe — Community Property — Public Lands — Homestead Entry — Title. Where a single man made homestead entry upon public lands, and subsequently married and thereafter patent issued to him, the land became his separate property.</p> <p>Executors and Administrators — Final Distribution — Notice— Sufficiency — Jurisdiction. Under Rem. & Bal. Code, §§ 1589, 1499, and 1500, requiring the time for final settlement of an estate to be fixed for not less than four or more than eight weeks from the time of making the order, and notice to be given by personal service or by publication for at least four successive weeks, a final distribution is without jurisdiction, and is subject to collateral attack, where only 21 days elapsed between the date of the order and the time of the hearing, and less than three weeks elapsed between the first publication of notice and the date of the hearing.</p> <p>Judgments — Conclusiveness—Collateral Attack — Recitals. A recital in a judgment of final distribution that the court finds from “affidavits on file” that due service of notice was made, does not raise the presumption, on collateral attack, of a valid personal service, where the only affidavits on file show a defective publication; since the only affidavits on file negative personal service and affirmatively show want of jurisdiction.</p>

, entered October 2, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for an injunction, and for damages.

<p>Deeds — Consideration. A deed otherwise regular is valid whether founded on a valuable or a good consideration.</p> <p>Husband and Wife — Conveyances Between — Separate Property. Where a wife conveyed to her husband a half interest in certain lots, theretofore her separate property, either as a gift or upon consideration of certain payments to be made from the husband’s separate estate, the interest conveyed becomes the separate property of the husband, regardless of the form of the deed, and they thereafter hold the property as tenants in common and not as community property.</p> <p>Same — Conveyances Between — Form of Deed — Community Property. Rem. & Bal. Code, § 8766 with reference to the form of a conveyance between husband and wife of community property has no application to conveyances of an interest in separate property.</p> <p>Same — Husband’s Separate Property — Conveyance. Under Rem. & Bal. Code, § 5915, the husband may convey his separate property ■without his wife’s joining in the deed.</p> <p>Appeal — Review—Objections Not Raised Below. The supreme court will not discuss a question not submitted to the trial court and as to which there was no suggestion either in the pleadings or the evidence.</p>

, entered July 1, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered December 14, 1912, denying an application for appointment as administrator of an estate, after a hearing before the court.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered March 22, 1913, upon findings in favor of the defendant, dismissing an action on contract, after a hearing before the court.</p>

<p>Carriers — Rate Regulations — Constitutional Law — Equal Protection of the Laws — Criminal Prosecutions — Excessive Penalties. Laws 1911, p. 558, § 25, providing that no street railroad company shall charge or collect more than five cents for one continuous ride within the city limits, and Id., p. 606, § 95, making it a gross misdemeanor for any officer or agent to violate the law or fail to comply with any order of the railway commission, punishable under Rem. & Bal. Code, § 2267, by imprisonment for not more than one year, or by a fine of not more than $1,000, or by both, is unconstitutional as being a denial of the equal protection of the laws in that the company may only have a hearing upon a claim of the unconstitutionality of the statute at the risk of such heavy and successive penalties as to amount to intimidation and foreclose its right to litigate the question.</p>

Appeal by intervener from a judgment of the superior court for King county, Ronald, J., entered May 10, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to foreclose a mechanics’ lien.

, entered November 26, 1912, upon the verdict of a jury rendered in favor of the defendant, in an action on a promissory note.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered Mjay 24, 1912, in favor of the plaintiffs, after a trial on the merits before the court, in an action to cancel a tax foreclosure deed and to quiet title.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered December 4, 1912, upon the verdict of a jury rendered in favor of the defendants by direction of the court, in an action for damages.</p>

<p>Municipal Corporations — Improvements—Damages to Abutters —Contractors—Liability. A city contractor on a public improvement, using streets for a tramway by permission of the city, is not liable to abutting owners on account of temporary inconvenience or damage by reason of the prosecution of the work in a lawful manner, where the contractor was free from negligence.</p>

<p>Licenses — Occupation—Statutes—Construction. Rem. & Bal. Code, § 7507, providing that a city of the first class may grant licenses for any lawful purpose and fix the amount to be paid, authorizes the licensing of vehicles for hire.</p> <p>Same — License Tax — Validity. Rem. & Bal. Code, § 7507, providing that a city of the first class may grant licenses for any lawful purpose and fix the amount to be paid therefor, authorizes licenses for revenue as well as for regulation; hence a license fee of $4 for vehicles for hire is not invalid because in excess of the sum needed for regulation.</p> <p>Same — Uniformity. Const., art. 7, requiring taxes to be uniform, has no application to a city license tax upon occupations.</p>

<p>Appeal — -Review—Exceptions. Error in instructions can be reviewed on appeal only when exceptions thereto were brought to the attention of the trial court before disposing of a motion for a new trial, and it is not enough that exceptions were served and filed in the cause.</p> <p>Criminal Law — Trial—Appeal—Harmless Error. The defendant cannot predicate error upon improper conduct of the court in that, on sustaining objections to examination by defendant’s counsel, a remark was made suggestive of improper relations of the defendant, when it was not any more so than the objectionable questions.</p>

<p>Divorce — Appeal—Review—Findings. The action of the trial court in dismissing an action for a divorce in a doubtful case will not be disturbed on appeal, where the evidence is conflicting and the trial court heard and saw the witnesses.</p> <p>Divorce — Suit Monet — Amount—Discretion. The discretion of the trial court in denying attorney’s fees and suit money in a divorce action, will not be disturbed on appeal except for abuse; and no abuse appears where, on dismissal of the action, the court allowed $50 attorney’s fees and $25 suit money, there being property worth not to exceed $5,000 subject to a large indebtedness.</p>

, entered December 5, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for money lent.

<p>Prostitution — Accepting Earnings of Prostitute — Information. An information charging defendants with accepting the earnings of one M. B., a common prostitute, charges the offense practically in the language of the statute, Rem. & Bal. Code, § 2440, making it unlawful to live with, or accept any earnings of, a common prostitute, and is sufficient.</p> <p>Indictment and Information — Duplicity. An information charging two persons with accepting the earnings of a common prostitute is not duplicitous when it charges both with a single crime.</p> <p>Witnesses — Impeachment. On cross-examination of a prosecutrix, on a prosecution for-accepting the earnings of a common prostitute, evidence that she had subsequently lived with another man and paid him all her earnings is not admissible to impeach her testimony, she having admitted that she was a common prostitute.</p> <p>Same. Such evidence is not admissible on the theory that she was endeavoring to shield the other man, as her motive for testifying against the accused.</p> <p>Prostitution — Accepting Earnings of Prostitute — Evidence— Corroboration — Sufficiency. On a prosecution for accepting the earnings of a common prostitute, corroboration of her testimony, within the requirement of Rem. & Bal. Code, § 2443, by another prostitute is sufficient; especially where other witnesses testified to payments and other circumstances tending to show the relations charged.</p> <p>Same — Accepting Earnings — Elements of Offense. One renting rooms to a common prostitute is guilty of accepting her earnings, within Rem. & Bal. Code, § 2440, where, in addition to the room rent, he was paid a specific sum for the privilege of each act of prostitution committed on the premises.</p> <p>Criminal Law — New Trial. Passion or prejudice, warranting a new trial, is not shown by the fact that the jury believed the evidence of the state, rather than conflicting evidence for the defense, where there was evidence to establish every element of the crime charged.</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered August 26, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for an injunction.</p>

, entered October 22, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

<p>Landlord and Tenant — Actions—Pleading—Variance—Materiality. In an action against a landlord, it is an immaterial variance, if any, that the complaint alleged that plaintiff was “seised and possessed and entitled to the possession” of premises, and the proof showed that she was a tenant from month to month, where the defendant knew the character of the possession.</p> <p>Landlord and Tenant — Lease—Termination. A tenancy from month to month is not terminated on the 28th of August, where the lease was made June 11th at which time it was not known when the tenancy would begin, the receipt for rent deposited recited that the rent was to commence about the 28th of the month, and the tenant moved in July 3d, and had fully paid for the second month.</p> <p>Landlord and Tenant — Damages—Actions—Remedies by Tenant. An action for damages against a landlord who unlawfully entered the premises before the termination of the tenancy and made a general nuisance of himself need not be brought under the unlawful detainer statute.</p> <p>Damages — Mental Suffering. Recovery may be had for mental suffering which was the result of the wrongful acts of the defendant in an unlawful entry upon plaintiff’s premises, although there was no actual physical injury.</p> <p>Landlord and Tenant — Damages—Excessive Verdict — Mental Suffering. A verdict for $1,000 damages is excessive, and should be reduced to $500, where plaintiff, who was ill, was greatly disturbed and frightened when the defendant, her landlord, unlawfully forced an entrance into the house early in the morning, and made a general nuisance of himself until late in the afternoon, her fright was only temporary, and her illness not augmented.</p>

, entered November 11, 1912, upon the verdict of a jury rendered in favor of the plaintiff, for damages sustained in an automobile collision.

<p>Damages — Personal Injuries — Excessive Yerdict. A verdict for $1,200 for personal injuries is not excessive, where it appears that plaintiff was shot in the arm, the bullet, entering below and coming out at the elbow, disabling the plaintiff from following his occupation at $3 a day for five months, and that he had not fully recovered at the time of the trial, seven months after the shooting, when he was earning but $2.50 a day.</p>

<p>Appeal from a judgment of the superior court for' King county, Yakey, J., entered July 1, 1912, upon findings in favor of the plaintiffs.</p>

, entered October 23, 1912, upon the verdict of a jury rendered in favor of the plaintiif, for injuries sustained by an employee driving a team in street improvement work.

<p>Dedication — Parol Dedication — Evidence—Sufficiency. A parol dedication is not sufficiently established by evidence of alleged statements made by the owner some twenty years before the trial, to the effect that the strip “was an old county road,” that he had “taken twenty feet here for a street” or “laid out twenty feet for a driveway,” and the plat showed it to be part of a lot with no expressed intention to dedicate.</p> <p>Highways — Prescription—Evidence—Sufficiency. A highway hy prescription is not established by use of a wagon road, convenience way, or trail, confined to a few people, and used by sufferance of the owners.</p> <p>Municipal Corporations — Streets — Improvements — Review by Courts. The method of improving streets by lawful structures being a political question, the courts cannot interfere to direct the authorities as to the kinds of gutters and curbs to place at a certain corner.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered June 28, 1912, upon findings in favor of the defendants, in an action on contract.</p>

<p>Appeal — Review—Statement op Pacts — Dismissal. A statement of facts, filed after time without any extension granted, will he struck out, and the appeal dismissed where no question is raised outside the statement.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered October 28, 1912, upon the verdict of a jury rendered in favor of the defendant, in an action on implied contract.</p>

<p>Corporations — Representation—Bills and Notes — Execution— Representative Capacity oe Makers — Parol Evidence. The officers of a corporation who sign a note reading that “We” promise to pay, without stating in the note or signatures the manner or capacity in which they act, are jointly personally liable and cannot be heard to say that they signed only as officers of the corporation, which received the consideration, where there is no ambiguity in the language of the note itself.</p>

<p>Brokers — Commissions — Contracts — Performance — “Sale.” A broker, haying a contract for the exclusive sale of a large tract of residence property on commission, did not make a sale entitling him to commissions, where, in the hope of inducing sales of the balance of the property, he procured a building company to enter into a contract to draw plans for and put up ten residences under a co-operative plan, work on which was to proceed only on the sale of each successive lot to third parties, and no present title passed, the owner merely agreeing to pass title to the building company in order to ser cure a loan for fifty per cent of the cost of the buildings, give a second mortgage, and make sales to third parties, no such sales being made by the broker and the second contract not providing for the payment of commissions; since the execution of the second contract ipso facto withdrew the property specified from the operation of the first contract, without effecting any sale thereof.</p> <p>Same — Contracts—Frauds, Statute of. Under Rem. & Bal. Code, § 5289, providing that a contract for a broker’s commission on the sale of real estate must be in writing, a broker is not entitled to commissions unless the writing determines the amount of the agreed upon commissions without resort to parol testimony.</p>

<p>Appeal — Review-—Findings. While findings of the trial court on conflicting evidence are of great weight, they are not conclusive on appeal where they are not supported by a fair preponderance of the evidence.</p> <p>Landlord and Tenant — Estoppel to Deny Title — Exceptions— Fraud — Evidence—Sufficiency. While a tenant is not estopped to dispute his landlord’s title when induced to accept the landlord through fraud or misrepresentation, the misrepresentation must relate to a matter not equally within his knowledge and must constitute the inducement to the lease; hence representations that the tenant did not own a building which he knew that he did own, being mere expressions of a legal conclusion on facts known to both parties, do not constitute fraud, in the absence of any relation of confidence between the parties; nor does acceptance of a lease under a threat of eviction constitute duress or fraud so as to relieve from estoppel to dispute the landlord’s title.</p> <p>Landlord and Tenant — Buildings of Tenant — Removal—Estoppel. The tenant’s right to remove a building under the conditions of a lease known to him, is waived, where he silently acquiesced in the claim of ownership by the landlord, accepted a new lease thereof, acknowledged such ‘claim of ownership, and paid rent for the full term; and equity will not relieve from his mistake of law in supposing that he could collect the rent paid; since the principle of law was not doubtful and he was not free from blame.</p> <p>Landlord and Tenant — Rents—Recovery. A judgment for the recovery of part of the rent paid, representing the rental value of a building belonging to the tenant, is not sustained, where the lease made no such segregation, and the amount was greatly in excess of the proportionate value of the building.</p> <p>Judgment — Res Judicata — Matters Concluded. The dismissal of actions for conversion for insufficiency of proof is not conclusive of anything except that the defendant did not convert the property.</p>

<p>New Trial — Newly Discovered Evidence — Surprise—Diligence. A new trial for newly discovered evidence is properly denied, where the new witnesses denied that they would testify as claimed: and their evidence was sought to meet evidence of the plaintiff showing the effect of her personal injuries subsequent to the first trial of the action, which was introduced at a second trial without objection to its relevancy or any claim of surprise.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $4,000 for personal injuries, rendered at the second trial of the action, two years after the first trial and four years after the accident, cannot be held excessive because the evidence at the first trial tended to show only temporary injuries, where it was sustained by the evidence at the second trial. .</p>

<p>Appeal from a judgment of the superior court for Spokane county, Yakey, J., entered December 2, 1912, upon findings in favor of the defendants, in an action for money paid, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered January 28, 1918, dismissing an action to quiet title, after a trial on the merits.</p>

Cross-appeals from a judgment of the superior court for King county, Everett Smith, J., entered September 7, 1912, upon findings in favor of the plaintiff, in an action on contract, tried to the court.

<p>Appeal from a judgment of the superior court for Benton county, Holcomb, J., entered September 5, 1912, upon findings in favor of the plaintiff, denying a motion to vacate a judgment.</p>

<p>Nuisance — Private Nuisances — Smoke and Soot — Liability—Relief. Where smoke, soot, and fumes from a gas manufacturing plant were cast upon plaintiff’s residence property to such an extent as to become the direct cause of substantial discomfort and inconvenience and tp materially diminish its earning power, the plaintiff is entitled to an injunction and to damages for the losses sustained.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered November 8, 1912, upon findings in favor of petitioners for an award in a condemnation case.</p>

<p>Ventje — Residence of Defendant — Domicile. Under the rule that statutes should be liberally construed in favor of the jurisdiction where the suit is instituted, a defendant, sued in the county where domiciled and engaged in business at the time the cause of action arose, is not entitled to a change of venue under Rem. & Bal. Code, § 208, fixing the venue in the county of his residence, on a mere showing that, being a newcomer in the state, he intended to reside in another county, without ever having declared a residence or engaged in business therein.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Miller, J., entered March 7, 1913, upon findings in favor of the plaintiffs, in an action for equitable relief.</p>

<p>Principal and Agent — Scope of Agency — Notice to Agent. Notice of the retirement of a member of a firm, given to a collector, is outside the apparent scope of his employment and therefore not notice to his principal, where his authority was limited and special, he had no power to arrange terms or extend credit and was vested with no discretion.</p>

<p>Public Lands — Tide Lands — Preference Rights; — Award—Finality-Appeal. Under Laws 1895, p. 527, giving abutters the preference right to purchase tide lands if there are no conflicting applications, and providing that in case of conflict the board of state land commissioners shall order a hearing upon sworn statements and certify its order to the commissioner of public lands, abutters have no vested preference right by virtue of an order granting their applications, where it appears that such order was not final and was not certified to the commissioner because of conflicting applications, that the board retained jurisdiction, gave notice of the contest and required statements, which were not filed, and finally denied the applications for want of proof of ownership, upon which no appeal was taken as required by law.</p> <p>Same — Proceedings — Waiver of Right — Failure to Appeal. Under Laws 1895, p. 527, upon the denial of the preference right of abutters to purchase tide lands, after a hearing before the board of state land commissioners, the remedy is by appeal to the superior court, failing which, the abutters must be held to have acquiesced in the final disposition of their applications.</p> <p>Sam:e — Preference Rights — Laches. Abutters are estopped by laches to claim the preference right to purchase tide lands, where for more than ten years after their right accrued they failed to make any demand for a deed or tender the purchase price.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered October 3, 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 San Juan county, Joiner, J., entered January 8, 1913, dismissing a garnishee defendant, after a trial to the court.</p>

, entered November 7, 1918, dismissing an action for usurious interest paid, upon sustaining a demurrer to the complaint.

<p>Master and Servant — Injury to Servant — Proximate Cause— Evidence — Sufficiency. In an action for personal injuries to a blacksmith's helper, through the use of an improper style of tongs, which it was alleged could not safely hold the iron to be welded, the use of such tongs was not negligence nor the proximate cause of the accident, where it appears that the tongs used held the iron in position at the time of, and had nothing to do with, the cause of the accident.</p> <p>Same — Res Ipsa Loquitur. In an action for personal injuries sustained by a blacksmith’s helper who was struck when a piece of iron that was being welded by a steam hammer slipped out and fell, there can be no recovery on the ground of res ipsa loquitur, where there was nothing to show what caused the iron to slip and no proof of negligence; since it was necessary for plaintiff to show that it was caused by defective machinery or some extraordinary or negligent act under the control of the defendant.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, Yakey, J., entered August 3, 1912, upon findings in favor of the defendants, in an action of ejectment, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered March 7, 1913, upon the verdiet of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered October 7, 1912, in favor of the plaintiff, upon sustaining a demurrer to affirmative defenses, in an action on a promissory note.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered July 8, 1913, dismissing an action for equitable relief, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered April 25, 1913, in favor of the relators, in mandamus proceedings to compel the levy of a supplemental local improvement assessment.</p>

<p>Vendor and Purchaser- — Contract—Forfeiture—Waiver. Tbe receipt by tbe vendor of all installments except tbe last one, some time after tbey became overdue, waives a provision making time of tbe essence of tbe contract.</p> <p>Specific Performance — Defenses—Assignment. An assignment by tbe vendee of a land contract to secure or in payment of a physician’s bill, does not defeat specific performance on bebalf of tbe personal- representatives of tbe deceased vendee, where tbe physician claimed nothing under tbe assignment but filed bis bill with tbe administrator and took judgment for tbe amount due him.</p> <p>Witnesses — Competency—Transactions With Deceased. In an action for specific performance, brought by tbe administrator of tbe vendee’s estate, tbe defendant cannot testify that be informed tbe decedent that tbe contract was forfeited, in view of Rem. & Bal. Code, § 1211, excluding tbe testimony of a party as to transactions with tbe deceased.</p> <p>Vendor and Purchaser — Contracts — Forfeiture — Waiver — Demand. After waiver of a provision that time was of tbe essence of a contract upon which all payments had heen made except the last one, the vendor cannot declare a forfeiture until after demand and the lapse of a reasonable time.</p> <p>Specific Performance — Defenses—Laches. Specific performance of a contract for the sale of land is not barred by laches, through mere lapse of time, where the vendee was in possession and paid taxes up to the time of his death.</p>

<p>Brokers — Contracts—Commissions—Evidence—Sufficiency. The evidence fails to establish a contract to pay a broker’s commissions on the sale of box shooks, where the broker could not show any specific agreement with the seller for the payment of commissions, nor any course of dealing from which a promise to pay could be clearly implied, the writings clearly negatived any such idea, and the contract rested entirely in a telephone conversation which was either disputed or misunderstood.</p>

, entered January 6, 1913, in favor of the defendant, granting a petition to modify a decree of divorce, upon overruling a demurrer thereto.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered October 19, 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 Kittitas county, Kauffman, J., entered March 16, 1912, dismissing an action for equitable relief, upon sustaining a demurrer to the complaint.</p>

<p>Guaranty — Telegram—Construction. Where a corporation, upon demand for payment or security of its note given to a bank for a loan, sought a renewal agreeing that its president should guarantee the note, and the president, knowing that the bank was not satisfied, telegraphed “Tell bank I request them to renew note ... I will arrange things satisfactory to them upon my return,” which caused the bank to forebear, the telegram was understood as, and was, a guaranty of the note; since no particular form of words is necessary and the writing must be so construed as to determine the intention of the parties.</p>

, entered March 14, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 6, 1912, upon findings in favor of the plaintiff, in an action for equitable relief.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered May 4, 1912, upon a trial and conviction of grand larceny.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered M]ay 23, 1912, in favor of the plaintiff, notwithstanding the verdict of a jury rendered in favor of the defendant, in an action on contract.</p>

<p>Divorce — Alimony—Enforcement ■— Contempt Proceedings — Defenses. A divorced husband cannot be adjudged guilty of contempt in failing to pay the alimony awarded where it appears by clear and satisfactory evidence that he has neither the means nor the ability to do so.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered November 30, 1912, upon findings in favor of the defendant, in an action of ejectment, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered July 24, 1912, upon findings in favor of the plamtiff, in an action on contract, tried to the court.</p>

<p>Appeal — Review—Verdict. A verdict upon conflicting evidence will not be disturbed on appeal if there is some evidence to sustain it.</p> <p>Pleading — Answer—Argumentative Denials — Burden of Proof. In an action for a balance due on a shipment of strawberries sold to defendant, a so-called affirmative defense setting up that the defendant received them on consignment and sold them for plaintiff’s account for the best price obtainable, adds nothing to defendant’s general denial of a sale to him, and does not put upon defendant the burden of proving the consignment.</p> <p>Appeal — Review—Harmless Error — Invited Error. It is not error of which the defendant can complain that the trial judge treated his so-called affirmative defense as such and instructed the jury that the burden of proving the same was upon the defendant, although it contained no new matter and good pleading required only a denial; especially where the defendant treated it as an affirmative defense at the trial and requested an instruction which placed the burden of proving it upon him.</p>

<p>Application filed in the supreme court May 8, 1913, for a writ of mandate to the superior court for King county, Huneke, J., to enter a judgment for plaintiff, and to vacate certain orders.</p>

<p>Infants — Guardian Ad Litem — Appointment — Control. The court appointing a guardian ad litem to prosecute a suit for a minor has plenary power to revoke the appointment and name a substitute, without any appellate or supervisory jurisdiction in the supreme court over the same.</p> <p>Removal of Causes — Effect—Guardian Ad Litem. After the removal of a cause from the state court to the Federal court, the latter becomes completely possessed of the action and has plenary power over the guardian ad litem of the plaintiff; and thereafter certiorari to review an earlier order of the state court in substituting a new guardian ad litem does not lie; the remedy, if any, being' by application to the Federal court.</p>

<p>Indictment and Information — Designation of Offense — Gaming. An information for “conducting a gambling game as owner,” under a statute designating the party committing the crime as “a common gambler,” is not demurrable as having improperly designated the crime, where it was otherwise sufficient.</p> <p>Gaming — Elements of Offense — Statutes — Construction. In an information for conducting a poker game as owner, under Rem. & Bal. Code, § 2469, defining a common gambler as every person who conducts as owner . . . any gambling game or game of chance played with cards . . . “or any scheme or device whereby any money is bet, wagered or hazarded upon any chance or any uncertain or contingent event,” it is not necessary to expressly charge that money was bet; since (a) the quoted words do not apply to that part of the statute; and (b) were it otherwise, the charge of playing poker for money alleges a game of chance, and a hazarding upon an uncertain or contingent event.</p>

, entered June 27, 1912, in favor of the defendant, notwithstanding a verdict in favor of the plaintiffs, in an action for wrongful death.

, entered November 18, 1912, upon findings in favor of the plaintiff, in an action to quiet title to and to recover possession of lands.

<p>Appeal from a judgment of the superior court for Clarke county, McKenney, J., entered July 30, 1912, upon findings in favor of the plaintiff, in mandamus proceedings, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered January 10, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Certiorari to review a judgment of the superior court for Whatcom county, Pemberton, J., entered July 25, 1913, refusing to extend the time for filing a statement of facts.</p>

<p>Municipal Corporations — Legislative Powers — Initiative and Referendum — Ordinances—Time of Taking Effect. Under Seattle city charter, art. 4, § 1, adopting the principle of direct legislation, and providing that ordinances may he referred to a vote of the people, either upon petition of voters or by the council acting without petition, the operation of an ordinance is suspended when submitted to a vote by the council, although the charter does not expressly so provide; since the principle of direct legislation would otherwise he violated.</p> <p>Evidence — Judicial Notice. The courts can judicially notice that it might be impossible to hold a referendum election within thirty days after the passage of an ordinance.</p> <p>Municipal Corporations — Legislative Powers — Initiative and Referendum — Ordinances—Submission—Validity of Election. Seattle charter, art. 4, § 1, adopting the principle of direct legislation, and providing that any ordinance may be submitted by the city council “by itself without petition,” does not require that the ordinance shall call for its own submission, and it may he submitted by resolution. ,</p> <p>Same — Powers of Council — Ordinance—Amendment—Effect and Necessity of Referendum Vote. Under Seattle charter, art. 4, § 1, adopting the principle of direct legislation, and expressly superseding, in so far as conflicting therewith, par. 41 of § 18, art. 4, which gave the council the power to alter, amend or repeal any ordinance, the council has no power to alter, amend or repeal a referendum ordinance adopted by the people, but the same must bé referred to the people under the simple referendum; especially where the referendum ordinance had not yet gone into effect pending the future date fixed by the people for it to take effect.</p> <p>Same — Employees—Regulation op Hoots op Service — Statutes —Construction. A referendum ordinance providing that employees in the marine fire department shall be divided into two platoons for day and night service, the hours for day service not to exceed ten, and for night service, .not to exceed fourteen, must be construed as intended to fix the hours for service, and not merely the maximum, and is accordingly repugnant to an ordinance providing for three shifts and an eight-hour day for each shift.</p> <p>Municipal Corporations — Fire Department — Hours op Labor— Regulations — Statutes—Construction. Under a Seattle city charter which does not classify the work of the fire department as public work, but excludes it from the jurisdiction of the board of public works, an employee of the fire department is not within art. 23, § 1, of the charter, providing that, in all public works done by the city either by day labor or by contract, eight hours shall constitute a day’s labor; and such employee is not a day laborer or a mechanic, within an ordinance limiting the hours of all day laborers and mechanics employed upon any public works of the city to eight hours a day; nor within Rem. & Bal. Code, § 6572 et seg., providing for an eight-hour day on all work done by contract on public works for municipalities, or subsequent state laws applying only to “work by contract or day labor done.”</p>

, entered March 4, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages to property.

<p>Appeal from a judgment of the superior court for King county, Wilmon Tucker, Esq., judge pro tempore, entered July 3, 1912, upon granting a nonsuit, in an action on contract tried to the court.</p>

<p>Money Paid — Recovery—Defenses—Evidence—Sufficiency. In an action to recover money paid to defendant as an advance on a loan plaintiff was making to him and another, it is no defense that defendant had signed an order for the payment of the advance “out of the money to be loaned,” and that the loan was never made, where it appears that the loan was abandoned because of the refusal of one of the applicants to indorse the note, there was nothing in the agreement to show that the money was not to be repaid if the loan, was not made, and the defendant received the money.</p> <p>Contracts — Construction—Liability. -An applicant for a loan is liable on his agreement to- pay the expense incurred in making it, although the loan was not completed, due to his failure to procure the abstract and complete the loan.</p>

<p>Guardian and Ward — Settlement and Discharge — Vacation— Limitations. Rem. & Bal. Code, § 464, limiting the time for the vacation of an order discharging a guardian for minors to one year after the minors arrive at full age, has no application, where an order discharging a guardian and settling his final account was entered without notice to, or knowledge of, his ward, there was no actual settlement, and he continued to hold himself out as guardian; since the order is ex parte and void for want of jurisdiction, and may be vacated at any time.</p> <p>Guardian and Ward — Settlement. Under Rem. & Bal. Code, § 1636, a guardian must fully account for and pay over all the ward’s estate at the expiration of the trust.</p> <p>Appeal — Review—Exceptions. Error in vacating the discharge of a guardian and ordering a settlement cannot be reviewed on appeal, where oral evidence was taken and the same was not brought up by bill of exceptions or statement of facts.</p>

<p>Frauds, Statute of — Orai Sabe of Land — Part Performance— Possession and Improvements. There is sufficient part performance of an oral contract for the sale of land to take the same out of the operation of the statute of frauds, where the purchaser took and retained possession with the consent of the vendor, and made permanent improvements consisting of a board house, shed, clearing and grading, enhancing the value of the property.</p> <p>Vendor and Purchaser — Contract—Performance by Vendee— Abandonment. Abandonment by the vendee of a contract for land to be paid for by doing carpenter work, is not shown by the fact that the vendee returned an abstract of title on being unable to secure a loan to take advantage of a cash offer, where he had no such intention and held himself ready at all times to perform the services agreed upon.</p> <p>Same — Performance or Breach — Forfeiture—Concurrent Acts. Vendors selling land in consideration of services to be rendered cannot put the vendee in default until they have offered to perform, the payment of the purchase price and delivery of the deed being concurrent acts.</p> <p>Same — Bona Fide Purchasers — Possession as Notice. Actual possession of property by a vendee under an oral contract of sale, with knowledge that the vendee had made the improvements, imparts notice to a subsequent purchaser, who therefore is not an innocent purchaser.</p>

<p>Appeal from a judgment of the superior court for Ferry county, Pendergast, J., entered January 3, 1913, dismissing a proceeding in mandamus, after sustaining a demurrer to the petition.</p>

, entered August 5, 1912, upon findings in favor of the defendants, in an action upon a promissory note, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered February 3, 1912,' upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.</p>

<p>Divorce — Grounds—Rendering Life Burdensome — Evidence—Sufficiency. Under Rem. & Bal. Code, § 982, authorizing a divorce on any grounds deemed sufficient, where the court is satisfied that the parties can no longer live together, the denial of a divorce is unwarranted, where it appears that there is no love between the parties, the defendant’s attitude toward his wife has been such as to make her life burdensome, and the parties agree that they can no longer live together, although there was no evidence of quarrels or temper or actual abusive treatment (Mount, J., dissenting).</p> <p>Divorce — Alimony—Right to. The wife is entitled to alimony although all the property belonged to the husband at the time of the marriage.</p>

<p>Master and Servant-Mnjury to Servant — Incompetent Fellow Servant — Negligence of Master — Question for Jury. Negligence in employing an incompetent engineer to run a donkey engine in a logging camp is a question for the jury, where it appears that the fireman, a Japanese boy, was allowed to temporarily run the engine during the absence of the engineer, that he was inexperienced, excitable and reckless, and that complaint had been made of him as incompetent, two or three days before the accident.</p> <p>Same — Cause of Injury — Evidence—Question for Jury. The negligence of an inexperienced engineer in starting a donkey engine “faster than usual” when signalled to pull on a log that was obstructed, is a question for the jury, where there was evidence that an experienced man would, have started the engine slowly to avoid injury through swinging of the log, which occurred at the time in question.</p> <p>Same — Duty to Warn — Necessity—Evidence—Sufficiency. It cannot be said, as a matter of law, that a warning was given, or that it was unnecessary, where a man, without practical experience as a logger, working as a signalman in the woods near a cable for about two weeks, was injured while giving a signal and standing in the bight of the cable, there was evidence that he was not warned of the danger, and was instructed by the foreman to give the signal at any point without crossing the road, and the foreman himself sometimes gave the signal from the same position. .</p> <p>Same — Assumption of Risks — Conteibutoey Negligence — Questions foe Juey. A signalman, without experience as a logger, is not guilty of contributory negligence, and does not, as a matter of law, assume the risk of injury from the swinging of a log, while he was giving a signal from a stump on the bank six feet above the log in the ravine below, especially where he was following the general instructions of the foreman to give the signals from the nearest point.</p>

<p>Wharves — Lease—Abandonment—Right to Earnings. Upon the abandonment of a wharf by a lessee, the lessor refusing the required consent to an assignment of the lease, the right to possession and subsequent earnings reverted to the original owner, as against the lessee and one claiming under it.</p>

<p>Cross-appeals from a judgment of the superior court for Whatcom county, Kellogg, J., entered September 8, 1912, in favor of the plaintiffs, except as to defendant Miller, in an action for rescission.</p>

<p>Application filed in the supreme court July 18, 1913, for a writ of prohibition to the superior court for King county, Humphries, J.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Holcomb, J., entered July 16, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered October 24, 1912, upon findings in favor of the defendants, in an action for conversion, after a trial to the court.</p>

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

, entered October 25, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the wrongful death of an employee in a quarry.

, entered March 30, 1912, upon findings favorable to the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

, entered February 15, 1912, dismissing an action to cancel a tax deed, upon sustaining an objection to the introduction of any evidence.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered July 24, 1912, upon findings in favor of the defendants, in an action upon contract, tried to the court.</p>

, entered January 2, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to obtain the construction of a will.

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

, entered June 10, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in the construction of a building.

<p>Appeal from a judgment of the superior court for King county,Main, J., entered May 29, 1912, upon findings in favor of the plaintiff, in an action for wrongful death.</p>