Volume 75 — Washington Reports

<p>Municipal Corporations — Negligent Use of Streets — Automobiles — Rate of Speed — Evidence—Sufficiency. A finding that plaintiffs automobile at the time of the accident was not exceeding the speed limit of 12 miles an hour, is warranted, where plaintiff estimated his speed at from 12 to 15 miles and said that while his car was going the last 60 feet, defendant’s car traveled 180 feet, and defendant’s driver said his speed was from 18 to 22 miles.</p> <p>Same — Proximate Cause — Question for Jury. A recovery for damages caused by a collision of automobiles is not precluded, as a matter of law, by the fact that plaintiff’s car approached the crossing on the left at the center of the street, in violation of an ordinance, where it does not conclusively appear that he was to the left of the center when the collision took place, nor that violation of the ordinance was the proximate cause.</p> <p>Same — Contributory Negligence — Question for Jury. Where automobiles colliding at a crossing were not meeting, and the duties of the drivers in respect to turning out were equal, it is a question for the jury as to whether the plaintiff should have turned to the right (Chadwick, J., dissenting).</p> <p>Witnesses — Cross-Examination—Limit—Former Testimony. It is not error to limit the cross-examination of a party touching his testimony in a former trial, where there was no substantial difference in his testimony in the two cases (Chadwick, J., dissenting).</p> <p>Same — Cross-Examination—Discretion of Court. The extent of the cross-examination of a party rests in the discretion of the trial court.</p> <p>Appeal — Review—Haemless Ebkob. In an action for damages caused by a collision of automobiles, it is harmless error to withdraw from the jury the defendant’s cross-complaint for damages to his car, where the jury found that the plaintiff was not, and that the defendant was, guilty of negligence.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, Yakey, J., entered February 7, 1912, upon a trial and conviction of murder in the second degree.</p>

<p>Damages — Personal Injuries — Excessive Verdict. A verdict for $4,000 for an injury causing “excessive soreness throughout the cervical region” is excessive, and should be reduced to $1,500, where there was no evidence to justify a finding of permanent injury, and at the time of the trial, it appeared that the plaintiff had for several weeks been able to work at his trade, that of a carpenter, and experts testified that all known tests indicated a present normal condition.</p>

<p>Appeal from a judgment of the superior court for What-com county, Kellogg, J., entered January 8, 1913, upon findings in favor of the plaintiff, in an action for money lent, tried to the court.</p>

, entered October 8, 1912, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries sustained by an operator of a turret lathe.

<p>Physicians and Surgeons — Malpractice—Degree of Care. Tbe standard of treatment required of a surgeon is not tbat of tbe locality in wbicb be practices, but tbat of all similar localities.</p> <p>Appeal — Review — Harmless Error' — Error Invited by Appellant. Tbe appellant cannot complain of error in an instruction where be requested instructions embodying tbe same error.</p> <p>Trial — Instructions—Applicable to Facts. It is not error to refuse an instruction, correct as a legal abstraction, where there was no evidence to wbicb it could apply.</p> <p>New Trial — Misconduct of Counsel — Improper Argument. It is misconduct of counsel, warranting tbe grant of a new trial, to repeatedly indulge in inflammatory argument alluding to matters outside of the record reasonably calculated to prejudice the appellant in the minds of the jury.</p> <p>New Trial — Grounds—Improper Argument — Discretion-—-Necessity oe Exceptions. Under the inherent power of the common law, as well as Rem. & Bal. Code, § 399, authorizing a new trial for irregularity depriving a party of fair trial or for the misconduct of the prevailing party, the trial court may exercise its discretion to grant a new trial for misconduct of counsel in argument to the jury depriving a party of a fair trial, although no exception was taken at the time of the improper remarks or request made to instruct the jury to disregard them.</p> <p>Same — Discretion oe Court — Failure to Exercise. Notwithstanding that the denial of a new trial would not have been an abuse of discretion, an erroneous denial for supposed lack of power, as a matter of law, is reversible error, where it appears that the trial court would have granted a new trial if it had supposed it had power to exercise its discretion.</p>

<p>Reformation of Instruments — Right to. Written instruments may be reformed to express tbe actual oral agreement and intention of tbe parties.</p> <p>Same — Evidence—Sufficiency. Mistake, as ground for tbe reformation of written instruments, must be established by tbe clear preponderance of tbe evidence.</p> <p>Same — Defenses—Acquiescence. Where tbe right to reformation was claimed as soon as enforcement of tbe contracts was sought, and there was no injury by tbe delay, there was no acquiescence.</p>

<p>Appeal from a judgment of the superior court for Adams county, Holcomh, J., entered December 23, 1912, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

Motion to dismiss an appeal from a judgment of the superior court for King county, Humphries, J., entered February 11, 1913, upon findings in favor of the defendant, in an action for a divorce, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Kauffman, J., entered November 24, 1911, in favor of the plaintiffs, in an action to foreclose a lien for architect’s services.</p>

<p>Taxation — Railroads—Valuation op Operating Property — Findings of Public Service Commission — Time for Valuation. Notwithstanding that it was the duty of the state board of tax commissioners, under Rem. & Bal. Code, §§ 9150, 9204, to make an annual assessment of the operating property of railroad companies for the purposes of taxation and make return thereof to the board of equalization prior to its annual meeting on the first Monday of September, to be equalized and apportioned in case the public service commission had not previously determined the valuation thereof, as provided by Laws 1911, p. 601, § 92, making the latter valuation conclusive for the purposes of assessment for taxation, a valuation fixed by the public service commission, on the 21st day of September, while the board of equalization was in session and prior to its final action on the valuation of any given railroad, is in time to be controlling and conclusive upon the state board of equalization for the current year, where the state board of tax commissioners had not made any assessment; and notwithstanding Rem. & Bal. Code, § 9147, providing that the value of railroad property for assessment shall be made as of the same time as the value of general property, which is assessed as of March 1, under Id., §§ 9091, 9101.</p> <p>Same — Valuation — Findings of Public Service Commission — Pendency of Review or Appeal — Res Judicata. In such a case, the fact that proceedings had been taken and were pending in the superior court to review the valuation of the public service commission, does not affect the conclusiveness of the valuation for assessment purposes in that year; since the finding of the public service commission had all the force and effect of a judgment, review of which in the courts, pursuant to Laws of 1911, p. 601, § 92, must be upon the evidence and exhibits taken before the commission (as in a case of a review of the statement of facts on appeal from a judgment) ; the pendency of which does not, accordingly, affect the plea of res judicata or stay or suspend the judgment; especially since the law provides no steps, and nothing was done, to secure a supersedeas or stay.</p> <p>Same — Valuation—Findings of Public Service Commission — Review — Trial De Novo. A review by the superior court of the findings of the public service commission upon the valuation of the operating property of a railroad company, is not in the strict sense a trial de novo, since the inquiry as to the correctness, reasonableness and lawfulness of the findings is upon the evidence and exhibits taken before the commission.</p> <p>Statutes — Subjects and Titles. An act entitled “An act relating to public service properties and utilities, providing for the regulation of the same . . . .” is sufficiently broad to include, as germane thereto, the provisions of Laws 1911, p. 601, § 92, empowering the public service commission to fix the valuation of the operating property of railroad companies for the purposes of assessment for taxation, and making the same conclusive on the taxing boards of the state.</p> <p>Taxation — Uniformity and Equality — Railroad Property — Time for Valuation. The guarantees of Const., art. 7, §§ 1, 2, 3, requiring all property to be taxed in proportion to its value, that the legislature shall provide by law a uniform and equal rate of assessment, and shall provide for assessing and levying taxes on all corporate property as near as may be by the same methods as are provided for the assessing and levying of taxes on individual property, are not violated by Laws 1911, p. 601, § 92, providing that the public service commission shall value the operating property of railroad companies, and that such valuation shall be conclusive for the purposes of assessment and taxation, where the law required the valuation to be determined by its “market value” and the general laws (Rem. & Bal. Code, § 9112) required all other property to be assessed by county assessors by determining its “true and fair value in money,” the true and cash value to be that at which the property would be taken in payment of a just debt from a solvent debtor; .since both laws require the value to be measured by the same standard, and the legislature may permit different classes of property to be assessed at different times.</p> <p>Taxation — Railroads—Valuation—Equalization — Statutes— Construction. Laws 1911, p. 601, § 92, making the valuation by the' public service commission of the operating property of railroads conclusive for the purposes of assessment and taxation, is not mandatory in the sense that it deprives the state board of equalization of the power to “equalize” the assessment with the assessment of other property in the state, even by reducing the valuation, if necessary; and a complaint alleging that the state board of equalization adopted the valuation of the public service commission does not charge that they failed to equalize it.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered December 9, 1912, dismissing a proceeding to review an order of the state board of equalization in fixing the value of relator’s properties for the purpose of taxation.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered June 20, 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>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered January 10, 1913, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiffs, in an action on promissory notes.</p>

<p>Waters and Water Courses — Diversion—Injunction—Nominal Damages — Equity. Equity will not enjoin the diversion of waters required for irrigation where the plaintiff sustains only nominal damages; and where the result is problematical, and it is impossible to ascertain with any degree of certainty the effect of the contemplated diversion, and neither party will lose any rights, the action may be held in abeyance until such time as the damages, if any, can be ascertained by dependable facts.</p>

, entered June 5, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action by heirs contesting a decree of distribution.

<p>Public Lands — Disposal of State Lands — Improvements, by Lessee — Appraisement—Statutes—Construction—Acts in Pabi Materia. Under Rem. & Bal. Code, §§ 6828-6830, providing that the state may grant to public service corporations the right to overflow state lands for the construction of power plants, the board of state land commissioners to first appraise the damages, the commissioners have the power and it is their duty to appraise the damages not only to the fee, but also to the improvements of a lessee from the state although the statute does not expressly provide for appraisement of improvements; in view of the settled policy of the state, in all its general legislation in reference to the lease and sale of state lands, to constitute the board of state land commissioners as the definite tribunal to appraise and fix tbe value of the improvements thereon; since the act in question is a part of the general system relating to the same class of subjects, and acts in pari materia are to be read together.</p> <p>Mandamus — To Boards — Practice—Questions of First Instance. Upon issuing a writ of mandamus to the state land commissioners to appraise the value of the improvements of a lessee on state lands, the board will not be directed as to questions to be passed upon in-the first instance by the board.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered August 11, 1913, upon sustaining a demurrer to the complaint, dismissing an action for an injunction.</p>

, entered April 13, 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>Vendor and Purchaser — Contract—Right to Possession. A contract for the sale of land, requiring the purchaser to keep open for public use strips reserved1 for roadway purposes, and to annually pay interest on deferred payments and taxes, impliedly confers upon the purchaser the right of possession.</p> <p>Same — Contracts—Breach-—-Action—Pleading and Issues. In an action for breach of a contract of sale, by the grantor’s entering and retaking possession, an answer admitting that the plaintiff entered into possession under the contract, without denying his right to do so, and alleging that plaintiff negligently permitted the land to grow up into weeds, estops the defendant from raising any issue as to the plaintiff’s right to possession in the first instance under the contract of sale.</p> <p>Same — Contracts — Breach — Unlawful Entry by Grantor. Where a vendee is entitled to possession under- a contract of sale, an entry by the grantor, who began cultivating the land against the vendee’s protest, is a breach of the contract, entitling the vendee to damages.</p> <p>Same — Contracts—Forfeiture—Default in Payment — Taxes. A forfeiture of contract for the sale of land for the default of the vendee is not warranted, where there was nothing due except for taxes, and the vendor at the time owed the vendee more than enough to pay the taxes, to be credited generally on the contract.</p> <p>Same — Breach by Vendor — Damages—-Amount Paid. Upon the breach by the grantor, of a contract to sell land, upon which was credited $325 as the agreed value of a wheat crop thereon, retained by the vendor, and $1,000 as the agreed value of lands traded in, the vendee’s damages are limited to the agreed value of the lands traded in as part of the purchase price, where that is all he had parted with, and it is error to include the agreed value of the wheat crop credited on the initial payment.</p>

<p>Pleadings — Objections—Waiver — Amendments to Conform to Proof. Objection that an affirmative answer does not state sufficient facts to constitute a defense, is waived and the answer deemed amended Oto conform to proofs, where the defects were amendable and the objection was first made at the trial after the proofs had been taken.</p> <p>Sales — Breach of Warranty — Evidence—Sufficiency. The evidence justifies a finding that fruit trees sold were defective, where none of them sprouted when planted and cared for in the same manner as other trees of which 95 per cent lived and grew.</p> <p>Sales — Implied Warranty — Nursery Trees. Upon a sale of nursery trees, there is an implied warranty that they are reasonably fit, true to name, and will germinate and grow.</p> <p>Appeal — Review—Verdict. A verdict will not be set aside on appeal if there is evidence which tends to support it.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered July 2, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through contact with an electric current.</p>

, entered March 18, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian run over by a street car.

<p>Principal and Agent — -Liability op Agent — Contract as Principal — Disclosed Agency — -Parol Evidence. Where a policy of insurance was issued to an agent at his request in his own name as principal, he cannot avoid liability for the premiums by showing by parol that he was an agent only and had disclosed the principal for whom he and his partner were acting; and where he had the policy assigned to himself and partner, the partnership is liable to the same extent as though it were originally issued to them.</p> <p>Insurance — Policy-—Cancellation—Evidence—Suppiciency. The evidence is insufficient to support a finding of an oral concellation, on November 1, of a policy of indemnity insurance, or of a waiver of written notice, where it appears that, after oral notice to cancel was given (which the agent denied) the insured made claims under the policy and the company recognized the policy as in force on November 20th and paid a loss thereon; the assured attempting to explain their claims by the fact that the agent had asked to have the policy continued, to which assent by the assured’s principal was required, and that they did not know when they made their claims whether such consent had been given.</p> <p>Interest — Unliquidated Demand. Interest is recoverable on an amount found due for insurance premiums from the time the demand accrues, where the amount can be ascertained by mere computation.</p>

<p>Banks and Banking — Deposits — Special Deposits — Liability. There was a special, and not a general deposit, which the bank holds as a trustee and not as a general debtor, notwithstanding that the bank commingled it with general funds, where it appears that the administrator of an estate took money belonging to heirs to the bank, stating that it was for safe keeping until the return of vouchers when' it was to be forwarded to the heirs by bank drafts, receiving from the cashier a receipt reciting that the money was “to be held until receipts are received from heirs. Then same to be forwarded by bank drafts.”</p> <p>Banks and Banking — Insolvency—Recovery oe Special Deposits. The receiver of an insolvent hank is liable for a special deposit, wrongfully commingled by the bank with its general funds, although the money cannot be identified, where an equal amount in cash remained in the bank until it suspended and passed to the receiver.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered February 3, 1913, upon findings in favor of the defendant, in an action for divorce, tried to the court.</p>

, entered July 16, 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>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered January 18, 1913, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action in replevin.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered November 2, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to enforce claims against the estate of a decedent.</p>

, entered August 8, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a passenger alighting from a railway train.

, entered November IS, 1912, denying a writ of habeas corpus and remanding the plaintiff to the custody of the warden of the state penitentiary, after a hearing before the court.

Appeals from an order of the superior court for Skagit county, Joiner, J., entered April 29, 1912, settling the account oí a receiver of a municipal corporation and directing the payment of warrants, after a hearing before the court.

<p>Frauds, Statute ok — Sale oe Real Estate — Broker’s Commissions. A contract listing real estate with an agent for sale falls within the statute of frauds, where it was not signed, there was no promise to pay a commission and the land was not described.</p> <p>Same. A contract for a broker’s commissions, required by Rem. &. Bal. Code, § 5289, to be in writing, is void, where resort must be had to oral testimony to ascertain the amount agreed to be paid.</p> <p>Same — Pleading—General Denial. In an action for a broker’s commissions, in which the complaint sets out a written contract which is without the statute of frauds, the defendant may, under a general denial, avail himself of the defenses of the statute.</p>

, entered April 2, 1913, upon the verdict of a jury rendered in favor of the defendant, in an action for damages from a change of grade.

, entered October 24, 1912, upon findings in favor of the defendant, in an action on contract, after a trial to the court.

Application filed in the supreme court June 17, 1913, for a writ of mandamus to compel the superior court for King county, Frater, J., to settle and certify a statement of facts.

<p>Municipal Corporations — Improvements-—Contracts — Performance or Breach. A contractor on public work who refuses to follow the directions of the city engineer in the matter of fastening a sewer box to its foundations, which the contract provided should be as directed by the city engineer whose decision was made final, cannot recover payments to be made upon completion of the contract, where, by reason of his failure to perform, the city was put to great expense in remedying the defect.</p> <p>Same — Certificate of Engineer. In the absence of fraud, arbitrariness, or mistake, the decision of the city engineer is final, where the contract provides that the dispute is to be finally determined by him.</p> <p>Same — Contracts—Performance—Estoppel. A city is not estopped from objecting to defective work which the city engineer observed during the progress of the work, where he at all times objected to the same, or where the contractor knowingly and wilfully violated his contract.</p> <p>Same — Contracts—Performance—Fraud—Evidence, Upon an issue of wilful fraud on the part of a contractor in refusing to perform his contract, it is admissible to prove that he offered money to the city engineer to secure an alteration of the plans that would materially lessen the cost of construction.</p>

<p>Deeds — Delivery—Evidence—Sufficiency. There was a sufficient delivery of a deed, found among the grantor’s papers after his death, to pass the title to the property, where it appears that the grantor put and allowed the grantee to remain in possession and make improvements, directed in writing the recording of the deed after his death, charged a third person with the duty of recording the deed, and attempted to deliver possession of the deed when death was near.</p> <p>Executors and Administrators — Partition oe Estate — Agreement — Community Property — Presumptions. There is a partial partition of an estate by agreement, without the necessity of an order of court, where the heirs were adults and the claims of creditors were satisfied, and the administrator of community property, in which he had a one-half interest, turned over to the heirs 352,000, the acceptance of which sum implied an assent by the heirs that he take a like sum in his own right; hence there was no presumption that investments made by him therefrom were made with community funds; nor would the heirs, by reason of his subsequent mismanagement of the balance of the estate, have any claim upon third persons acquiring rights under the partial partition.</p>

<p>Landlord and Tenant — Defective Premises — Negligence — Injury to Tenant — Liability. The rule of caveat emptor does not apply, and tbe landlord is liable as for a tort, without any agreement on his part to repair, where the tenant sustained an electric shock through a defective and uninsulated electric light switch, where the defect was actually known to the landlord and not disclosed or known to the tenant.</p> <p>Same — Liability of Landlord for Defects — Negligence — Contributory Negligence — Question for Jury. Whether a landlord was guilty of negligence in renting property with actual knowledge of a defective light switch, and whether the tenant was guilty of contributory negligence in failing to discover the defect on inspecting the premises, is for the jury, where a former tenant testified that he had notified the landlord’s agent of the defective condition of the electric apparatus and that it had notice of the exposed condition of the switch in question, which was behind the front door, and the evidence was conflicting as to whether the defect was so obscured that it would not be discovered by a prospective tenant in the exercise of reasonable care.</p> <p>Same — Actions—Pleadings—Complaint. In an action for the negligent renting of premises in which there was a defective electric light switch, an allegation that the defendant knew that the switch was exposed and dangerous is fairly inferable from a complaint alleging that the defendant was negligent in causing or permitting the electrical wires to be exposed and unprotected and in failing to give the tenant warning of the condition.</p> <p>Trial — Objections—Waiver. Error cannot be predicated upon the submission of an issue which was fairly inferable from the allegations of the complaint, where there was no objection to the complaint except by general demurrer submitted without argument; and on objection made to the introduction of the evidence in question as outside the issues, the court ruled that it was reasonably within the issues, in which ruling the appellant acquiesced by saying “all right” and made no claim of surprise or prejudice; since an amendment would doubtless have been made.</p> <p>Trial — Instructions—Charge as a Whole. Error cannot be predicated upon an isolated instruction, when, taken as a whole, the instructions clearly state the law applicable to the evidence.</p> <p>Appeal — Review—Haemless Error. In an action for personal injuries, error in the admission of evidence of permanent womb trouble, where there was no allegation thereof in the complaint, is harmless where the court expressly withdrew that issue from the consideration of the jury; especially where its only effect would have been to augment the recovery, and the court ordered a new trial unless the plaintiff submitted to a substantial reduction of the verdict.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered November 4, 1912, upon the verdict of a jury rendered in favor of the plaintiff, for per* sonal injuries sustained by a laborer employed in dismantling a bridge.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Baske, J., entered September 30, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Tbade-Mabks and Trade-Names — Right to Trade-Name — Necessity of Filing Certificate — Corporations. Under Rem. & Bal. Code, § 8369, providing that no person shall transact business under an assumed name unless lie shall file a certificate thereof in the county clerk’s office, a partnership cannot acquire the legal right to an assumed name until the certificate is filed; hence, where a corporation had filed its articles adopting the name before the filing of the partnership name, the partnership is not entitled to the name by reason of being the first to commence business; the one first legally acquiring the name being entitled to hold it, in the absence of fraud.</p> <p>Same — Relief—Injunction—Corporations—Names. An injunction lies to prevent the use of a business name so similar to the name legally adopted by a corporation that the mail of the two concerns became mingled, patrons of one mistakenly patronized the other, and the confusion resulted in damage which would be incapable of proof in a court of law.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered July 31, 1912, upon findings in favor of the plaintiffs, in an action for conversion, tried to the court.</p>

<p>Criminal Law — Excessive Sentence. Under Rem. & Bal. Code, § 2281, providing that, where no minimum term of imprisonment is prescribed by law, the court shall fix the same at not more than five years, the court may fix a minimum term of fifteen years for forgery in the first degree, under Id., § 2583, providing a maximum term of twenty years without fixing any minimum term.</p> <p>Habeas Corpus — To Discharge Prisoner — Excessive Sentence. Habeas corpus does not lie to secure the discharge of a prisoner sentenced to serve an excessive minimum term of imprisonment, prior to the expiration of the minimum term authorized by law, where the court had jurisdiction of the person and of the offense; since the prisoner is not serving in excess of the term which the court had power to impose.</p>

<p>Bills and Notes — Consideration — Sufficient— Waiver of Rights. There is a sufficient consideration for a promissory note, made by a homestead entryman in return for possessory rights, to an agent in possession for heirs of a deceased preemptor, although the entry of the deceased had expired by limitation, where such entry had not been cancelled, and the agent had maintained possession and made improvements and had also tendered an entry in his own behalf which was then pending, and had advised the maker of the note of the opportunity to file, and withdrew his own entry and surrendered possession, and had, so far as he could, given the maker of the note the preference right to file, which he did after cancellation of the entry of the deceased.</p> <p>Bills and Notes' — -Actions—Parties Plaintiff — Real Partt in Interest. The payee of a promissory note for a sum to be divided between herself and another is the real party in interest entitled to sue thereon, within the meaning of Rem. & Bal. Code, § 179.</p> <p>Parties — Defects and Objections — Waiver. . Objection that the plaintiff is not the real party in interest is waived by failing to raise it at the trial by demurrer or otherwise.</p>

<p>Waters and Water Courses — Irrigation Districts — Organization — Proceedings—Jurisdiction. In forming an irrigation district under Rem. & Bal. Code, §§ 6416-6494, providing that tbe county commissioners shall hear the petition and make such changes in the boundaries as they find proper, by excluding lands of a certain class and condition and including lands improperly omitted, the commissioners have jurisdiction to determine whether the lands included have a sufficient water supply for irrigation from any source, and their decision thereon is final and conclusive, unless set aside or annulled by a court in a proceeding to review the same; notwithstanding that the law provides that the board shall not include “any lands which will not, in the judgment of said board, be benefited by irrigation by said system, or which have a sufficient water supply for irrigation from any source.”</p> <p>Same — Proceedings — Confirmation— Conclusiveness — Notice— Estoppel. Landowners in an irrigation district are estopped from asserting that they had no notice of the proceedings to establish the district and that the hearing was fraudulently concealed from them and their land wrongfully and irregularly included in the district, where the formation of the district was afterwards confirmed, as provided by law, by proceedings in the superior court, wherein special findings were made on all the objections urged against the regularity of the proceedings, which were approved and confirmed.</p> <p>Same — Proceedings—Notice—Substituted Service. Proceedings in the superior court to confirm the formation of an irrigation district under Rem. & Bal. Code, § 6416 et seq., are in rem, the object being to fix the status of the district and issue valid bonds, and may be instituted by publication of notice without personal service on all persons who are within the jurisdiction of the court.</p> <p>Same — Notice—Form. A notice of the confirmation of proceedings to form an irrigation district is not objectionable in form in that the typewritten title of the case had been in part erased by drawing a line through certain words, which were subsequently rewritten in the title with a pen.</p> <p>Same — Confirmation—Res Judicata. In proceedings to confirm the formation of an irrigation district, a complaint sufficiently broad to include the issue, and special findings that all the lands in-eluded in the district require artificial irrigation and are susceptible of one mode of irrigation from a common source by the same system of works, and have not a sufficient water supply from any source other than proposed by said district, are sufficient to make the proceedings res judicata on the question as to whether certain lands included had a sufficient water supply for irrigation from any other source.</p> <p>Same — Proceedings—Bonds—Validity—Injunction. The issuance of bonds by an irrigation district, formed under Rem. & Bal. Code, § 6416 et seq., will not be enjoined because there is no source of water to supply the district other than by a contract with the United States government for the use of flood waters stored in reservoirs to be constructed by the Federal government, where there does not appear to be such an irreconcilable conflict between the state and Federal laws as to prevent a working agreement being made with the Federal government for such water supply.</p> <p>Same — Bonds—Board op Directors —■ Injunction — Control by Courts. The issuance of such bonds will not be enjoined because of the uncertainty of securing a supply of water, in the absence of the allegation of definite facts warranting an interference by the courts; since the board of directors are clothed with a wide discretion and the courts will not interfere in mere questions of good business policy.</p>

<p>Partnership — Dissolution—Liquidation—Rights or Partners— Estoppel. Where three partners in a logging venture were interested in timber lands, and in standing timber that had to be removed within two years, a dissolution of the partnership by a sale of the interests of one partner to another, does not prevent the purchaser from proceeding to carry out the venture by paying taxes and logging the timber, where it was necessary to save the stumpage from loss and he acted in good faith; and the third partner, who refused to aid or take part in the work, Js estopped, after waiting to see if the operations proved advantageous, to deny his right to log the land and wind up the affairs of the partnership.</p> <p>Partnership — Accounting—Advancements. Evidence that a partner, making advances to conduct logging operations, might have bought cheaper equipment, does not establish that he did not conduct the operations economically, where the equipment provided was standard and usually employed in that class of work.</p> <p>Same — Personal Expenses — Evidence—Admissibility. A partner conducting logging operations, is not, in the absence of an express agreement, entitled to be reimbursed for personal expenses by way of railroad fare and hotel charges “for marketing the products of the firm;” and it is not admissible to show that the selling of timber in like quantities involves an average expenditure in a certain amount by way of personal expenses.</p> <p>Interest — Rate—Legal Rate in Absence oe Writing. Where there is no written contract for the payment of interest, testimony of witnesses as to an oral contract for “bank interest” must be considered in the light of Rem. & Bal. Code, § 6250, providing for interest at the rate of “six per cent per annum, where no different rate is agreed to in writing between the parties.”</p>

<p>Municipal Coepohations — Public Improvements — Assessments—■ Property Liable — Deductions—Previous Similar Improvements. Where part of a railroad right of way, included in a district of lowlands to be filled, had been partially filled by earth largely taken from the adjacent portion of the right of way, also included within the district, the company is not entitled to a deduction on account of such fill; even assuming that an equitable deduction “must” be made, under Rem. & Bal. Code, § 7972, providing that lands already filled “may” be excluded from the district when “justice and equity require,” or under Id., § 7975, providing that where land is partially filled, an equitable deduction for such partial filling “may” be allowed; since the partial fill made by the company did not reduce the number of cubic yards required to make the improvement, and was not a benefit to the district, entitling the company to any reduction as a matter of equity.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered April 22, 1912, upon a trial and conviction of murder in the first degree.</p>

<p>Appeal from a judgment of the superior court for King county, Carey, J., entered August 13, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the wrongful death of a switchman.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, Still, J., entered September 24, 1912, upon findings in favor of a ward, upon settlement of a guardian’s final account.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered May 9, 1912, upon the verdiet of a jury rendered in favor of the plaintiffs, in an action on contract.</p>

<p>Vendor and Purchaser — Contracts—Rescission by Vendor — Forfeiture — Recovery oe Payments Made. In tbe absence of a contract expressly providing for tbe forfeiture of payments made.on an executory contract for tbe sale of lands, a vendor cannot retain payments made and rescind for default in payments due; and where tbe vendor repudiated sucb an oral contract and conveyed tbe land to another before tbe contract matured, be is liable to tbe purchaser for the purchase money paid.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered July £5, 191£, upon the verdict of a jury rendered in favor of the defendant, in an action in tort.</p>

, entered December 21, 1912, upon the verdict of a jury awarding damages in condemnation proceedings for a local improvement.

, entered October £4, 191£, upon granting a nonsuit and denying a new trial as to one of the defendants, in an action in tort.

<p>Divorce — Grounds—Failure to Support. Under Rem. & Bal. Code, § 982, subd. 6, providing that a divorce may be granted for tbe neglect or refusal of the husband to make suitable provision for his family, his duty to support his wife is a continuing one, and it is error to refuse a divorce, where the court finds that the husband, having the ability, refused to make any provision for her support for a sufficient length of time to show his settled purpose to disregard his duty; and it is no defense that the wife found employment and was able to maintain herself.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered October 29, 1912, dismissing a will contest, after a hearing on the merits.</p>

<p>Explosives — Blasting—Liability — Adjoining Landowners — Injury to Well — Negligence. Contractors wbo set off an exceedingly large blast of powder, causing tbe eartb for a considerable distance to shake violently, are liable to an adjoining owner, whose well was injured and water supply lost, without regard to their negligence in setting off the blast, although there was no physical invasion of the property.</p> <p>Same — Defenses. In such a case, it is no defense that the contractors were lawfully engaged in making a cut on the right of way, where it does not appear that the waters which fed the well were drained on or appeared in the right of way in consequence of the blast.</p> <p>Waters and Water Courses — Subterranean Waters — Correlative Rights. There are such correlative rights in percolating waters that one owner may not, by setting off an unusual blast of powder on his own land, destroy or injure the flow of the water in the well of an adjoining landowner; since each owner must make such reasonable use of percolating subterranean waters as not to unduly interfere with the rights of the other owners.</p> <p>Explosives — Blasting—Damages—Injury to Well • — • Proximate Cause — Evidence—Sufficiency. Where a blast of nearly three tons of powder displaced an enormous amount of rock and earth, and caused the earth to shake violently for a considerable distance, and threw a small house from its foundation a quarter of a mile distant, and experts were of the opinion that the blast opened a seam or seams in an impervious stratum of rock that had held the water, the jury is warranted in finding that the blast was the proximate cause of the loss of the water in a well situated on the hillside, above the blast, about 500 feet distant, the water in which receded seven feet within five hours after the blast.</p> <p>Evidence — Experts—Opinions—Hypothetical Questions. In an action for damages for the loss of water in a well, caused by a heavy blast set off 500 feet distant, mining experts who had had experience and observation in the use of explosives in large quantities, may, in answer to hypothetical questions, express an opinion that the explosive caused the loss of the water.</p> <p>Appeal — Review—Harmless Error — Exclusion of Evidence. In an action for damages for the loss of water in a well, caused by a heavy blast, it is not prejudicial error to exclude evidence offered by the defendant to the effect that the plaintiff could obtain water from a public service corporation by extending a privately owned water main at an expense of $100, where the jury awarded only $250 damages, and the plaintiffs would have had to pay for the water for all time.</p> <p>Same. In such a case, it is not prejudicial error to exclude evidence that the plaintiff could have obtained the right to use water under a revocable license, in the absence of proof of the cost thereof.</p> <p>Same — Harmless Error — Instructions. In an action for damages for the loss of water in a well, it is not prejudicial error to instruct that the measure of damages was the difference in the value of the plaintiffs’ property before and after the loss, where the jury awarded only $250, which equalled the cost of obtaining the water -elsewhere, and the plaintiff could not have minimized the same by reasonable effort.</p> <p>Trial — Misconduct of Judge — Comment on Evidence. The asking of a proper question by the court is not unlawful comment on the evidence.</p>

, entered January 24, 1912, in favor of the defendants, setting aside a local assessment, after a hearing on the merits.

<p>Municipal Corporations — Public Improvements — Assessments— General and Special Benefits — Review—Evidence—Admissibility. In reviewing a special assessment, an offer to prove that the assessment was unreasonable and unjust in that between fifty and seventy-five per cent of the cost should be paid by the general public, the benefits being derived therefrom being general benefits, is properly-rejected as immaterial, inasmuch as the city cannot be assessed unless specially benefited, and general benefits cannot be made the basis of an assessment, and the offer of proof did not go to show arbitrary or fraudulent action, or that the commission proceeded upon' a fundamentally wrong basis, or that the city was specially benefited.</p>

, entered November 4, 1912, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action in tort.

<p>Appeal from a judgment of the superior court for Spokane ■county, Huneke, J., entered June 29, 1912, upon the verdict ■of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

<p>Execution — Supplementary Proceedings — Third Party Claims— Title to Property in Dispute — Wife of Judgment Debtor. Rem. & Bal. Code, § 620, providing that, in supplementary proceedings, the court may order delivered to the sheriff or a receiver personal property in the possession or control of the judgment debtor, only when his right to the possession thereof is not “substantially disputed,” has reference to property claimed by third persons not parties to the suit as to whom a trial of the title would be without due process; hence the requirement that there be no substantial dispute as to the right of possession does not, vhere the wife was a party to the action, prevent the court from determining the ownership of property claimed by the wife as her separate estate, on supplementary proceedings in aid of an execution against the separate property of the husband and the community property of the husband and wife.</p> <p>Same — Receiver—Real Property. In supplementary proceedings the court may appoint a receiver of the real as well as the personal property, under Rem. & Bal. Code, § 640, providing that the court may appoint a receiver of “the property” of the judgment debtor; especially in view of Id., § 644, providing that real property is vested in the receiver from the time when the order is filed with the county auditor.</p> <p>Husband and Wife — Separate Property of Wife — Community Property — Stock Issued in Return for Property. Where a holding corporation was organized by a family and the property of the members of the family turned over to the company in return for proportionate parts of the capital stock, whether stock issued to a wife was community or separate property depends upon the nature of the property which she gave in consideration for the stock; and the stock issued in return for property acquired by her by gift is her separate property, and in return for her community property, is community property.</p> <p>Execution — Supplementary Proceedings — Receivers—Claims by Third Persons. On supplementary proceedings, the title to shares of stock held and claimed by third persons, who were not parties to the action, cannot be litigated, and where doubt appears as to the bona fid.es of transfers to them from the judgment debtors, the court may authorize the receiver to institute suits to determine the same.</p> <p>Husband and Wife — Conveyances Between — Community Property — Gift to Wife. Community property deeded by a husband to his wife when he was not expected to live long, with the express purpose of making provision for the wife by giving it to her as her separate estate, thereupon becomes her separate property; and it is immaterial that the parties continued to live on the property.</p> <p>Fraudulent Conveyances — Transaction Between Husband and Wife — Good Faith — Burden of Proof — Subsequent Creditors. Rem. & Bal. Code, § 5292, casting the burden of proving the good faith of transactions between husband and wife upon the party asserting the good faith, does not authorize a subsequent creditor to raise the Question of good faith; especially in view of Id., § 8766, providing that a deed from husband to wife shall divest the property from every claim or demand as separate property, except as to “any existing equity in favor of creditors of the grantor at the time of such transfer.”</p> <p>Same. The husband’s transfer of community property to his wife as a gift is not fraudulent as to creditors, where it was established that the deed was executed and delivered before the liability arose, although the deed was not recorded until ten days after the husband incurred the liability.</p> <p>Same — Evidence of Fraud — Sufficiency. The fact that a deed making a gift from a husband to his wife was not recorded until ten days after a liability incurred by the husband, and that the year of the acknowledgment was blotted and obscure, is not sufficient to establish fraud as to creditors, where there was positive evidence that it was executed and delivered on the day of its date, three years before, and the notary taking the certificate of acknowledgment identified the deed as one acknowledged before him at some time before liability arose.</p> <p>Execution — Supplementary Proceedings — Receivers — Fraudulent Conveyances. In supplementary proceedings, the receiver is properly authorized to institute suits to set aside a transfer of the debtor’s school land lease, made to his son shortly after incurring the liability, and by his son transferred to other parties, where the debtors remained in possession exercising acts of apparent ownership.</p> <p>Same — Appointment of Receiver. Rem. & Bal. Code, § 640, vests broad discretion in the trial court to appoint a receiver in supplementary proceedings, and the appointment is justified where one of the parties claiming adversely was a nonresident, and the matters could be litigated by the receiver in a smaller number of actions than otherwise.</p> <p>Same — Receivers—Costs and Exegeses. In supplementary proceedings, it is error, in appointing a receiver of the property, to authorize the payment of his compensation and expenses in instituting proposed suits out of the property of the judgment debtor, and the order should require the costs of such actions and expenses to abide the result of the actions, and in case of failure, to be taxed against the creditors.</p> <p>Same — Injunction. In supplementary proceedings, by the express provision of Rem. & Bal. Code, § 624, the court may by injunction restrain all persons having notice from conveying or interfering with the property involved.</p>

Cross-appeals from a judgment of the superior court for Okanogan county, Pendergast, J., entered August 31, 1912, apportioning the water in a ditch, after a trial on the merits to the court.

, entered July 17, 1912, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiffs, in an action for malpractice.

<p>Appeal from a.judgment of the superior court for Yakima county, Preble, J., entered February 29, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Vendor and Purchaser — Contract—Performance—Title—Remedies op Vendee — Damages—Rescission—Time op Demand. Where a vendee, after paying only part of the purchase price, brought an action for damages because of failure of title, without asking cancellation of the contract, and before trial the defendant acquired title and tendered a conveyance, the plaintiff is not entitled to amend his complaint or seek a rescission of the contract; since the plaintiff was not damaged until the contract matured, and the subsequent acquisition- of title and tender of conveyance before maturity of the contract was a full performance of it.</p>

<p>Railroads — Regulation—Public Service Commissions — Review— County — Venue. Under Laws 1911, p. 596, § 86, providing for a review of orders of the public service commission by the superior court" of the county “in which the proceeding was instituted,” no other superior court has any jurisdiction to issue a writ of review, and the word “instituted” cannot be construed to mean “originated” so as to give jurisdiction to review an order in a controversy “originating” in a county other than the one where the proceeding was “instituted.”</p>

<p>Appeal from a judgment of the superior court for Klickitat county, McKenney, J., entered February 14, 1912, dismissing an action to quiet title, after a trial to the court.</p>

, entered April 27, 1912, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries caused by blasting.

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered April 17, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through defects in a machine sold by defendants.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered February 20, 1912, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Master and Servant — Injury to Servant — Contributory Negligence — Evidence—Sueeiciency. An experienced . hook tender, in' charge of a logging crew as a vice principal, pulling a log in from the woods with a donkey engine, is guilty of contributory negligence, as a matter of law, where it appears that the log lodged against a windfall, that he readjusted the choker on the log and took a position in front of the windfall, and after an unsuccessful attempt to pull the log over the windfall, it swung towards and struck him, when the engineer failed to stop the engine immediately upon signal; since it was his duty to know the conditions and he assumed a dangerous position when there were abundant places of safety around him.</p> <p>Same — Fellow Servants. A hook tender, in charge of a logging crew as a vice principal, hauling a log from the woods with a donkey engine, cannot recover for injuries sustained through the negligence of the engineer under him, in failing to stop the engine immediately upon signal, since it was his duty as vice principal to know the conditions existing at the engine and among his crew, and when he assumed a dangerous position and gave the signal, he assumed the position of a fellow servant with the engineer.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered April SO, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for rescission.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered November 21, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered May 18, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malicious prosecution.

<p>Appeal from a judgment of the superior court for Snohomish county, W. P. Bell, J., entered December 14, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

<p>Appeal from an order of the superior court for Spokane county, Yakey, J., entered December 7, 1912, allowing the withdrawal of defendant’s appearance, after a hearing on affidavits.</p>

, entered January 2, 1913, upon findings in favor of the defendant, dismissing an action for reformation and to quiet title.

, entered March 21, 1912, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a seaman employed on a fishing steamer.

, entered April 29, 1912, upon the verdict of a jury rendered in favor of the plaintiff for $17,500, for wrongful death resulting from a collision on a street railway line.

<p>Municipal Corporations — Public Improvements — Remedies oe Abutters — Temporary Injunction — Eeeect on Merits. In an action by a property owner to enjoin tbe construction of a sewer until his damages bad been ascertained and paid, in wbicb tbe plaintiff objected to tbe trial of tbe case as an action for damages, an order denying a temporary injunction and requiring tbe city to bring a condemnation or other suit to ascertain tbe damages, is not to be construed as an admission of plaintiff’s right of recovery, especially where tbe order was excepted to, as plaintiff could either enjoin tbe construction or sue for damages, and could waive one remedy and insist on tbe other.</p> <p>Easements — Access—Prom Public Parks. Tbe owner of property abutting a park has no vested right of access at any particular point, and therefore cannot complain that a sewer constructed in tbe park interferes with bis right of access.</p> <p>Municipal Corporations — Parks—Uses — Diversion. Tbe construction of a sewer in a public park wbicb tbe city bolds by fee simple title, is not necessarily a diversion of tbe uses of the park; and as to an abutting owner is damnum, absque injuria.</p> <p>Same — Powers—Sewers — Discretion oe Council- — Review by Courts. Courts will not control tbe discretion of tbe governing body of a city in placing a sewer in a park, nor in laying tbe same on top of tbe ground.</p>

, entered April 80, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by pedestrians struck by an automobile.

<p>Parent and Child — Kidnaping—Action por Damages — Persons Liable — Instructions. In an action for damages for kidnaping a child, brought against several defendants, one of whom it was admitted took no part in the kidnaping and did not know the whereabouts of the child, it is proper to instruct that there could be no liability upon him unless he participated by some act or deed in harboring and concealing the child and that mere knowledge on his part that some one had kidnaped her imposed no duty upon him to conduct an inquiry for the purpose of ascertaining the guilty parties.</p> <p>Religious Societies — Torts — Liability of Bishop — Evidence— Sueeiciency. The bishop of a Catholic diocese is not liable in damages for the torts of his subordinates, a rector and the sisters in charge of a school, who kidnaped a child, where his control was only over their spiritual welfare and not the temporal affairs of either, and it merely appeared from the evidence that plaintiff called on him and failed to obtain an audience, that he heard of the child’s disappearance, and the rector, in answer to inquiry made, informed him that he did not know anything concerning her; since the minister of a church or head officer of a fraternal society is not responsible for the torts of his brethren unless participated in or ratified 'and affirmed.</p> <p>Parent and Child — Custody—Action eor Kidnaping — Parties— Abandoned Child. A divorced husband and father is not a necessary party plaintiff in an action for kidnaping a child, where the wife had remarried and the child had been for several years supported in the family of the stepfather, in whose custody she was; the inference being that the father had abandoned the child.</p> <p>Parent and Child — Custody—Kidnaping—Action for Damages —Barites—Stepfather; The stepfather is a necessary party plaintiff in an action for kidnaping a child who had been received into his home and was supported by him; since the stepfather was in duty hound to support the child, and the action is founded on loss of services.</p> <p>Husband and Wife — Action for Maligious Prosecution — Parties. A second husband is a necessary party plaintiff in an action for malicious prosecution brought by his wife, in view of Rem. & Bal. Code, § 182, relating to actions ‘which arise out of an injury to the character of the wife.</p> <p>Parent and Child — Custody—Kidnaping—Damages—Mitigation —Moral Character op Mother. In an action by a mother for damages for kidnaping of a child, the moral character of the plaintiff is not an issue and evidence to establish immorality is inadmissible to mitigate the damages.</p> <p>Same — Damages—Excessive Damages — New Trial. In an action for kidnaping a minor child, whose whereabouts was concealed from February 7th to September 11th following, during which time she was kept in a Catholic school, the plaintiff expending $3,000 to find her daughter and regain her custody, a verdict for $19,033, is so grossly excessive as to conclusively establish passion and prejudice, requiring a new trial; as the damages can be compensatory only.</p>

<p>Jury — Right to Jury Trial — Master and Servant — Right of Action — Industrial Insurance. The compulsory industrial insurance law, requiring men engaged in hazardous occupations likely to result in injuries to employees to waive certain rights and privileges, and requiring employees about to engage therein to give up personal rights of contract and to contract with reference to the law, was adopted to avoid the delay and frequent injustice incident to civil trials; and to sustain the law by reference to the police power requires that every incident to the law and the methods necessary to make it effective be likewise exempted from the proscriptions and limitations of the constitution; hence it is not unconstitutional as denying the right to trial by jury, although it abolishes rights of action and defenses, in certain cases, and in certain cases denies the right of trial by jury.</p> <p>Constitutional Law — Police Power — Scope. The police power is as broad as the public welfare and as strong as the arm of the state, and its scope is to be measured by the legislative will of the people in acts passed in affirmance of established usage or of such standards of morality and expediency as have, by gradual process and accepted reason, become so fixed as to fairly indicate the better will of the people in their social, industrial and political development.</p> <p>Jury — Right to Jury Trial — Constitutional Provisions. The right to trial by jury guaranteed by the Federal constitution does not apply to state courts or to prosecutions for the violation of state laws.</p> <p>Constitutional Law — Republccan . Form of Government. The compulsory industrial insurance law does not violate the Federal constitutional guarantee of a republican form of government.</p>

<p>Adverse Possession — Railroad Right of Way — Color of Title— What Constitutes — Evidence—Sufficiency. Adverse possession of part of the Northern Pacific Railway right of way, outside of the 100-foot limit, is not insufficient to confer title, as being that of a mere squatter, where the claimant entered under deeds from parties previously in possession, he was deterred from getting an abstract by the heavy expense involved, his possession was at all times hostile to the true owner, his improvements possessed the character of a permanent home of the value of $1,500 to $2,000, and the company, although having knowledge of his possession and improvements, did nothing to disturb his possession or assert ownership to the land.</p> <p>Adverse Possession — Tacking—Privity-—Evidence—Sufficiency. Where there is privity of interest, the adverse possession of successive owners may be tacked, notwithstanding evidence of their deeds was unsatisfactory and they were not recorded, where other circumstances and conditions were sufficient to sustain a claim of right under color of title.</p> <p>Adverse Possession — Railroads — Right of Way — Power to Alienate — Removal of Restrictions — Statutes—Construction. Congress having, in 1864, granted a four hundred foot right of way to the Northern Pacific Railroad, alienation of which was prevented by the policy of the government, the act of Congress of April 28, 1904, 33 Stat. at L. 538, legalizing and confirming all conveyances by the company “heretofore” made of any part of the right of way more than 100 feet from the center line, in case the company files with the secretary of the interior its written acceptance of the terms and provisions of the act, is remedial, and viewed in the light of its history, and the construction of the Federal supreme court, extending its operation to acquisitions by adverse possession, was intended to waive the governmental policy and the reversionary interest of the public in such portions of the right of way, thereby permitting conveyances thereof subsequent as well as prior to the act; hence the act was prospective and authorizes the acquisition of title by adverse possession subsequent to its passage.</p> <p>Adverse Possession — Color of Title — Settlement on Railroad Right of Way. Adverse possession of portions of the Northern Pacific right of way outside of the 100-foot limit, which Congress had authorized the railroad company to alienate, with the erection of valuable improvements, ripens into a title, where the occupancy was adverse for the period of more than ten years, without objection by the company, although the predecessor in interest claimed under an original settlement made under the belief that the land was open to settlement and which failed to initiate a title.</p> <p>Public Lands — Grants—Railroad Right of Way — Authority to Alienate — Reversion. Act of Congress, 33 Stat. at L. 538, legalizing and confirming all conveyances made by the company of land forming part of the Northern Pacific right of way outside of the 100-foot limit, was not intended to work an abandonment or forfeiture of any part of the right of way, or to cause the same to revert to the government.</p> <p>Same — Statutes—Construction. The construction of an act of Congress authorizing a particular railroad company to alienate a portion of its right of way is not affected by the fact that it does not apply to all land grants, nor by the motive of Congress.</p>

<p>Municipal Corporations — Public Improvements — Assessments— Confirmation — Proceedings. An assessment roll may he confirmed hy resolution, under Rem. & Bal. Code, § 7532, providing that the city council shall confirm an assessment roll hy resolution or ordinance, in conformity with the charter of such city, and § 67 of Spokane city charter, providing that the council' shall' pass an order approving and confirming the’same.</p> <p>Same — Public Improvements — Contracts—Confirmation of Assessments. Where a city charter authorized the confirmation of an assessment roll hy resolution, and the ordinance authorizing the work provided that the assessment should be made in aecordancé with the provisions of the charter and ordinances, a contract referring in terms to such ordinance. and providing that it shall take effect upon confirmation of the assessment roll, does not contemplate that .the confirmation shall he by ordinance, as provided in another city ordinance to which no reference'was made in the contract, since the parties could have made such. ordinance a part of the contract hy reference if that was intended, or contracted for confirmation, by a particular method.,</p> <p>Municipal Corporations — Claims — Necessity — Damages from Breach of Contract. A charter provision requiring the presentation of all' claims for damages for' personal injuries or for injuries to property sustained by reason of alleged negligence or any act of the city or its .oificers, agents, or servants,, does not require a claim for damages by reason of breach of contract for a public improvement.</p>

<p>Landlord and Tenant — Unlawful Detainer — Bonds por Retention oe Premises — Liability on Bond — Rent—Statutes—Construction. Liability under a bond in unlawful detainer, given by defendant to retain possession, and conditioned as required by statute, extends to any rent found due, and not merely to the rent that may accrue subject to the giving of the bond, under Rem. & Bal. Code, § 827, providing that a tenant guilty of unlawful detainer shall be liable for twice the amount of damages suffered by the plaintiff by reason of the unlawful detainer and of the rent due, and Id., § 820, providing that a bond to retain possession shall be conditioned to pay the plaintiff such sum as the- plaintiff may recover for the use and occupation of the premises “or any rent found due,” together with all damages sustained by reason of the defendant occupying or keeping possession of the premises.' ’</p>

<p>Husband and Wire — Rights or Survivor — Estates Less Than $1,000 — Release—Contracts—Validity. A contract between a husband and wife providing that upon the death of either, the survivor shall not receive any right or interest in the separate property of the other, is to be strictly construed, and does not prevent a widow from taking advantage of Rem. & Bal. Code, § 1464, providing that estates of less value than $1,000 shall be set aside for the use and support of the widow and minor children; since the same is analogous to statutes providing for homesteads in property of deceased persons to prevent dependency, and cannot be abrogated by private contract; and since, in the case of real property, the wife’s interest could be conveyed only by deed.</p> <p>Descent and Distribution — Estates Less Than $1,000 — Rights or Surviving Wire — Statutes—Implied Repeal. Rem. & Bal. Code, § 1464, providing for the setting aside of the whole of estates of less than $1,000 for the use and support of the widow and children of the deceased, was not impliedly repealed by the act of 1895, Id., § 528 et seq., providing for the selection by the surviving spouse of a homestead of the value of $1,000 out of the real property of the deceased; since the acts are not repugnant and repeals by implication are not favored.</p> <p>Statutes- — Title and Subjects — Scope. Rem. & Bal. Code, § 1464, providing for the setting aside of estates of less than $1,000 for the use and support of the widow and children of the deceased, is germane to the title of an act entitled “an act relating to proceedings in probate,” and amending specified sections of the probate code, although the section amended was not enumerated in the title.</p> <p>Descent and Distribution — Provision eor Support oe Widow- — • Title to Estate Set Apart. Rem. & Bal. Code, § 1464, providing for the setting aside of estates of less than $1,000 feu; the use and support of the widow and children of the deceased, does not place any limitation on the power of sale, and an order setting the estate apart vests full title.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered.December 11, 1912, upon findings in favor of the plaintiff, in an action for rescission.</p>

<p>Food — Implied Warranty — Original Packages eor Use oe Ultimate Consumer — Liability to Retailer. There is an implied warranty of food products put up for the use of the ultimate consumer in original packages which are sealed and not open to inspection; and liability thereon is not limited to the ultimate consumer or dependent upon privity of contract, hut extends to a retailer 'who was damaged by loss of trade and reputation through the fault or breach of duty of the manufacturer.</p> <p>Food — Implied Warranty — Negligence—Liability to Retailer. There is an exception to the rule that a manufacturer is not liable on an implied or express warranty to any person other than his immediate vendee, where food products were put up in sealed packages for the use of the ultimate consumer, who alone could discover the unfitness of the contents, since right and reason require that any party injured may recover of the first offender without resorting to a circumlocution of actions against intervening agents.</p> <p>Courts — Rule oe Decisions — Exceptions. The courts will, if free from statutory restraint, declare an exception to a rule that does not square with justice, where the case is not an isolated instance, but general in its character.</p> <p>Food — Negligence—Violation oe Pure Food Law — Presumptions. The presumption of negligence from a violation of the pure food law is available to a retailer of sealed packages who depends upon established brands to sustain his reputation as a dealer; since the product was intended for the use of all who handle it in trade as well as those who consume it.</p>

<p>Municipal Corporations — Streets — Grades —- Damages to Abutting Property — Liability op Railroad Company. In an action against a railroad company for damages to abutting property by the original grading of streets to meet approaches to an overhead railway crossing at street intersections, evidence that a cut of thirteen feet was made in the street, when a cut of not to exceed five feet was all that would have been required to accommodate the interests of the people and travel at the point in question, and that the city council required the railroad company to grade the approaches as a condition of closing other streets, is inadmissible; since it did not tend to prove that the natural surface of the street had been reduced to the grade line for the first time established for any other purpose than in the course of its normal and ordinary improvement for street purposes, taking into consideration the connecting streets and the needs of the community served; and the fact that the city council required the railroad company to grade the streets, as a condition to its closing other streets, would not prove that the street was not improved in its normal and ordinary manner for street purposes.</p>

<p>Pleading— Answer — Argumentative Denials — Contracts — Breach — Burden of Proof. In an action to recover anticipated profits from the sale of rock, which plaintiff had contracted to remove from the defendant’s land within a reasonable time, but which the defendant prevented by taking possession of the land, an answer denying defendant’s violation of the contract, and setting up as an affirmative defense that plaintiff failed to perform his contract within a reasonable time, amounted to nothing more than a denial of the complaint; hence it was error to instruct that the burden of proof was upon the defendant to establish that plaintiff had failed to perform within a reasonable tim.e.</p> <p>Evidence — Burden of Proof — Shifting. The making of a prima facie case does not shift the burden of proof.</p> <p>Contracts — Action for Breach — Pleading—Complaint. A complaint for breach of contract states a cause of action when it alleges that defendant prevented the plaintiff from performing its contract to remove certain rock which on removal was to become plaintiff’s property, and which it would have been able to sell at a price to realize a specific net profit over and above all costs of performance of the contract (Chadwick, J., dissenting in part).</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered January 20, 1912, in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

<p>Logs and Logging — Sale or Standing Timber — Contract—Title, When Passes. A contract, drawn with legal nicety, whereby the owner of land sold and transferred the standing timber, with right of removal for seven years, at the expiration of which time uncut timber was to “revert” to the grantor, passes a present title to the timber.</p> <p>Same — Contracts—Construction—Time eor Payment. Under a contract for the sale of standing timber whereby the purchaser was to make monthly payments for all timber cut within ninety days after the same shall have been cut and delivered at the mill, the logs must either be taken to the mill within a reasonable time, or they must be taken to the mill and paid for within ninety days after they are cut; hence the purchaser is liable for logs cut and allowed to remain in the woods for over a year.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered January 22, 1913, dismissing a proceeding for a writ of mandate, upon sustaining demurrers to the complaint.</p>

<p>Municipal Corporations — Representation—Agents — Authority —Evidence—Sueetciency. There is sufficient evidence that the secretary of the board of public works had authority to represent the city in stating to a contractor when a foundation would be built by the city, where the contract was made with the board of public works, the secretary was at all times the spokesman of that body, and all communications had with the city or board were through him; as the city would be estopped even if he exceeded his authority.</p> <p>Same- — Actions—Evidence—Admissibility. Upon an issue as to whether a city had delayed unreasonably in the construction of a foundation, to the damage of a contractor relying on its completion within a stated time, evidence that the contractor’s agent had stated that the time for completion of the foundation was immaterial provided it did not affect demurrage charges, is immaterial.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered January 24, 1916, upon sustaining a demurrer to the petition, dismissing an action to compel the reinstatement of an officer removed from office.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered July 19, 1912, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on promissory notes.</p>

<p>Municipal Corporations — Obstructions in Navigable Waters— Liability. A city is not liable for injuries sustained on account of obstructions in navigable waters within its borders, in the absence of statute expressly imposing upon it the duty of keeping such waters open and free from obstruction.</p> <p>Same — Obstructions—Liability—Ordinances—Construction. Under'Seattle city charter, art. 12, §§ 1 and 5, providing that the city shall exercise control of the harbor and water front, and appoint a port warden, and under ordinances making it unlawful for any one to discharge or deposit any refuse in the waters of Elliott Bay, and making it the duty of the port warden to enforce the ordinances, no duty is imposed upon the port warden or assumed by the city to remove debris cast into the harbor.</p> <p>Same — Ordinance—Liability for Negligence in Enforcing Ordinance. A city is not civilly liable for the negligence of its port warden in failing to enforce an ordinance prohibiting persons from casting debris in the navigable waters of the city.</p>

<p>Frauds, Statute op — Pleading—When Raised by Demurrer. In an action for a broker’s commission, in which plaintiff filed a bill of particulars setting out a written contract within the statute of frauds, a demurrer to the complaint for want of sufficient facts raises the defense of the statute of frauds.</p> <p>Same — Defense of Statute — Waiver. In an action to recover a broker’s commission, the defense of the statute of frauds is not waived, where the defendant demurred upon the ground of want of sufficient facts, and later answered setting out a contract within the statute as the only writing and the entire and sole agreement between the parties, and moved for a nonsuit and later for a directed verdict on the express ground that the contract did not comply with the statute of frauds and was void.</p> <p>Same — Broker’s Commissions — Sufficiency of Memorandum— Description of Property. A written contract to pay a broker’s commission on the sale of timber lands and timber is within the statute of frauds, Rem. & Bal. Code, § 5289, and void, where it did not contain any description of the lands or timber to be sold, merely referring to it as “our timber.”</p> <p>Same — Performance—Effect. Performance does not take a contract out of the operation of the statute of frauds.</p> <p>Same — Actions—Quantum Meruit. A recovery upon quantum, meruit cannot be bad in an action to recover a broker’s commission wbicb was witbin tbe statute of frauds.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered September 11, 1912, dismissing an action for an injunction, after a trial to the court.</p>

, entered April 24, 1911, settling the final account of a guardian of the estate of an insane person, after a hearing before the court.

, entered December 7, 1912, dismissing a proceeding to review an order of the state board of equalization in fixing the value of relator’s properties for the purpose of taxation.

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered May 2, 1912, upon findings in favor of the plaintiff, in an action of ejectment tried to the court.</p>

, entered December 4, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a pedestrian through a defective bridge.