Volume 76 — Washington Reports

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered October 16, 1911, upon findings in favor of the plaintiffs and interveners, after a trial on the merits before the court without a jury, in an action to enjoin the diversion of waters for irrigation purposes.</p>

Appeal by plaintiff from a judgment of the superior court for Spokane county, Huneke, J., entered February 6, 1912, upon the verdict of a jury rendered in favor of the plaintiff for $1,000, for personal injuries sustained by a passenger when a street car left the track.

, entered December 7, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries.

Appeal by defendants from a judgment of the superior court for King county, Dykeman, J., entered March 22, 1913, dismissing without prejudice an action for equitable relief and also the cross-complaint, after a trial on the merits to the court.

<p>Frauds, Statute of — Pleading—Necessity. Where the complaint in an action for a broker’s commission does not set out the contract or disclose that it was within the statute of frauds, the defendant may raise the point at the trial without having demurred, or pleaded in his answer that the contract is within the statute and void.</p> <p>Frauds, Statute of — Broker’s Commissions — Sufficiency of Writing. A contract for a broker’s commission for the sale of “seventy-nine acres” in a specified section, cannot be applied to any definite property without resort to parol testimony and is therefore not sufficient, under the statute of frauds requiring the contract to be in writing.</p>

Application filed in the supreme court, July 7, 1913, for a writ of prohibition to the superior court for Chelan county, Grimshaw, J., to prohibit the court from proceeding with a will contest.

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered July 3, 1912, upon findings in favor of the plaintiff, in an action for divorce.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered January 22, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Nuisance — Private Nuisance — Injury to Hotel Business — Actions. An action by a husband and wife for damages to the reputation of their hotel business, through improper acts by the defendants in securing rooms for immoral purposes, is an action for a private nuisance per se, under Rem. & Bal. Code, §§ 943, 944, defining actionable nuisances subject to actions for damages as including whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use or enjoyment of property.</p> <p>Same — Complaint—Sufficiency. In such an action, the complaint states a cause of action when it alleges that defendants entered plaintiffs’ hotel with two females whom they falsely represented to be, and registered them as, their wives, securing rooms in which they indulged in lewd and disorderly conduct, to the annoyance of other guests and to the injury of the reputation of the hotel and business of the plaintiffs.</p> <p>Same — Complaint—Sufficiency. In an action by a husband and wife for damages to the reputation of their hotel business through immoral acts of the defendants amounting to a private nuisance per se, it is error to treat the complaint as one for injury to personal character and sensibilities resulting from slander, and to require the separation of the causes of action against the husband and the wife and the community, and to eliminate evidentiary matter constituting a plain statement of the facts and matter of inducement leading up to the actual commission of the nuisance.</p> <p>Same — Complaint—Special Damage. In an action for damages from a private nuisance, injurious to plaintiffs’ property, it is not necessary to allege special damages as in the case of the perpetration of a public nuisance.</p>

<p>Evidence — Written Contract — Contradiction — Oral Contemporaneous Agreement. Where a bank had, without authority, used $3,-000 of plaintiff’s deposit in a transaction with his brother, a written contract between the three parties providing that the bank would pay the amount to plaintiff if certain real estate, conveyed to the bank by the brother in full liquidation of his own debt, could be sold within a year for $15,000, is a complete agreement on its face, so as to preclude evidence of an oral contemporaneous agreement that the plaintiff was to forfeit all right to the $3,000 if the land could not be sold as contemplated in the written agreement.</p> <p>Contracts — Consideration—Agreement to Perform — Legal Obligations. Where a bank had, without authority, used $3,000 of plaintiff’s deposit in a transaction with his brother, and a written contract between the three parties provided that the bank would pay the sum to the plaintiff, in case certain real estate, conveyed to the bank by the brother in full liquidation of his own debt, could be sold within a year for $15,000, an oral agreement on the plaintiff’s part to forfeit the $3,000 in case no such sale could be made, was not supported by a sufficient consideration; since there was no evidence that the brother owed the bank anything or that the plaintiff had agreed to pay any such debt, and the only consideration for an extension of time to pay the deposit was the bank’s agreement to pay Interest; payment of the deposit being nothing more than the bank was already bound to do.</p> <p>Compbomise and Settlement — Consideration. Where there is no doubt as to a party’s right, a compromise is not a sufficient consideration for a contingent waiver of that right.</p> <p>Appeal — Record—Review—Instructions. Where the record contained only .part of the instructions, which were unobjectionable as far as they went, it will be assumed on appeal that other instructions correctly covered the law of the case in other particulars.</p> <p>New Trial — Misconduct oe Jurobs — Impeaching Verdict. On motion for a new trial, a jury’s answer to a special interrogatory respecting a certain exhibit cannot be impeached by the affidavit of jurors that they mistook another paper for the exhibit, but for which mistake the interrogatory would have been answered differently; since the matters set forth inhere in the verdict.</p>

<p>Appeal from an order of the superior court for Spokane county, Huneke, J., entered September 17, 1912, confirming a sale on execution, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, W. P. Bell, J., entered October 20,1911, upon findings in favor of the plaintiffs, in an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, W. P. Bell, J., entered July 6,1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Executors and Administrators — Removal — Nonintervention Will — Discharge of Trust. Where the only property held in trust by executors under a nonintervention will was certain shares of stock in a corporation, bequeathed to specified legatees or charged with the payment of specific legacies, and the shares were sold for full value under a power of sale in the will and the proceeds safely invested in interest bearing securities, maturing when the legacies were payable, the estate is fully administered; and the executors cannot be removed, under Rem. & Bal. Code, § 1444, for failure to faithfully discharge their trust, on petition of a legatee who did not demand his legacy and the proceeds of his stock, but merely sought to question the subsequent dealings of the executors with the corporation, which were purely personal transactions in no way affecting the conditions of the trust.</p> <p>Same — Discharge of Trust — Failure to Give Notice to Creditors. The failure of executors under a nonintervention will to give notice to creditors or obtain a decree of solvency, is an irregularity only, and not ground for their removal, where there were no creditors, the estate was solvent, and the trust had been faithfully discharged.</p>

, entered October 6, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by an employee engaged in excavating a well.

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered January 4, 1912, dismissing an action for ah injunction, after a trial on the merits.</p>

<p>Contracts — Performance or Breach — Evidence — Sufficiency. An agreement by a practical manufacturer of machinery to build a motor and pump to demonstrate the feasibility of a scheme, the success of which was problematical, in consideration of a half interest in the profits and of a conveyance of land as security for the expenses incurred, the land to become his absolutely in case the machine was a failure, is not performed upon his part and the evidence is sufficient to support findings that it was not shown to be a failure so as to entitle him to the land, where the machine when set up 'did not work to the satisfaction of either party, and there was evidence that the gears were out of alignment and did not mesh properly, and were cast when good construction called for cut gears, that there was a fault in the sleeve shaft of the pump, and that the machine pounded and stopped frequently and was so noisy that it could be heard half a mile away; notwithstanding he might have been justified, under the contract, in his refusal to salve and repair it after it had been torn from its moorings by a passing steamer; since he was bound to construct a machine free from mechanical and structural defects.</p> <p>Same. In such a case, the manufacturer cannot shield himself by a reference to the plans and specifications for the machine, since the defects shown depended upon the skill of the workman rather than written plans, and the plans, if defective, would have been rejected.</p>

, entered February 4, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.

<p>Cross-appeals from a judgment of the superior court for Spokane county, Huneke, J., entered July 14, 1911, in an action for equitable relief, after a trial on the merits.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered January 11, 1918, upon findings in favor of the defendant, in an action on contract tried to the court.</p>

<p>Dedication — Plats — Intent — Parol Evidence — Admissibility. Under the rule that a recorded plat cannot be contradicted or impeached by parol, it is inadmissible to show by the evidence of the dedicators that they did not intend to dedicate a portion of the street included within its boundaries as shown on the plat, which plainly extended an irregular street to the water’s edge at the point in question.</p> <p>Same — Vacation—Nonuser. Where a street had been opened and used, the fact that a portion of it, a steep declivity of irregular shape, evidently intended to give access to the water at that point, had never been used as a street, does not vacate such portion by nonuser, under Ballinger’s Code, § 3803, providing for the automatic vacation of streets that had never been opened or used by the public.</p> <p>Dedication — Plat—Ambiguity. The fact that a short irregular street extending to the water’s edge, plainly marked on the plat and included in the street, was not named, and that there were additional dotted lines (evidently extensions of some other lines) does not create an ambiguity as to the intent of the dedicators to dedicate a street, so as to admit of oral evidence of their intention.</p> <p>Gose and Chadwick, JJ., dissent.</p>

, entered October 14, 1912, in favor of the plaintiff, upon sustaining a demurrer to defendants’ cross-complaint, in an action of ejectment.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered January 2, 1913, in consolidated action's to quiet title, dismissing plaintiff’s cause of action and granting affirmative relief to defendants.</p>

Appeal by defendants from a judgment of the superior court for King county, Main, J., entered March 16, 1912, upon the verdicts of a jury awarding damages and determining the benefits in condemnation proceedings for a commercial waterway, after a trial on the merits.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered September 16, 1912, upon the verdict of a jury rendered in favor of the defendant, in an action for newspaper libel.</p>

<p>Municipal Corporations — Public Improvements — Contracts — Validity — Interest oe City Oeeicers. A contract for a public improvement is not invalidated by the' interest of city officials, under Rem. & Bal. Code, § 7750, where they had no interest in the contract when it was let, and it merely appears that, after changes in the specifications, the contractor purchased material from corporations in which they were interested, and paid for the same in the usual course of business, without any agreement to pay from the proceeds of the contract.</p> <p>Same — Assessments — 'Objections — Review. Objections to the justness of a special assessment, as affected by the proper performance of the contract, must be made upon the hearing and confirmation of the assessment, or on appeal therefrom.</p>

, entered September 25, 1912, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action in tort.

<p>Husband and Wife — Community Property. Where real property is purchased in this state with money earned in another jurisdiction by a husband or wife, it inures to the person whose money was invested therein.</p> <p>Gifts — Delivery—Deposits—Husband and Wife. Under the rule that a gift is not presumed, and that there must be a delivery passing dominion and control to the donee, the fact that a husband and wife opened a joint account in a bank, each having the right to draw therefrom, does not establish a gift from the husband to the wife of a half interest in the deposits, all of which, except one small sum, were made by him from his separate estate.</p>

, entered October 11, 1912, dismissing an action for wrongful death, upon granting a nonsuit, after a trial before a jury.

, entered February 3, 1912, upon the verdict of a jury rendered in favor of the plaintiff, for property injured and destroyed by fire.

<p>Bail — Fobeeitube — Vacation — Statutes — Inherent Power oe Court. Rem. & Bal. Code, § 2233, authorizing the vacation of the forfeiture of bail upon production of the prisoner within sixty days, is not to be construed as limiting the common law power of the court to grant relief in proper cases after the expiration of such period; and the court has inherent discretionary power, irrespective of statute, to vacate a forfeiture of bail, and its order will not be reversed except for abuse of discretion.</p> <p>Same — Discretion oe Court. It is not an abuse of discretion to vacate a judgment forfeiting cash bail for a prisoner convicted of crime, who fled pending a motion for new trial, where, ten months after the forfeiture, the prisoner returned “owing to the persuasion of her friends and bondsmen,” and voluntarily surrendered herself and performed the judgment.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered March 2, 1912, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a passenger in alighting from a street car.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Steiner, J., entered March 28, 1912, upon findings in favor of the defendants, in an action to restrain a trespass.</p>

<p>Counties — Improvements — Canals —■ Establishment— Government Aid — Authority op Oppioers — Contracts—Validity. A county river and harbor commission can have no authority to make a contract for the preparation of an assessment roll in aid of a government canal, pursuant to Rem. & Bal. Code, § 8148 et seq., unless there was the initial power and authority to form the district and levy the assessment; and where the contract was void ab initio for want of power on the part of the officers to bind the municipality, there can be no estoppel against the municipality to defeat payment by reason of the acceptance of benefits conferred by the contract.</p> <p>Same — Improvements — Canals — Establishment — Conditions Precedent — Government Aid — Intent op Federal Government. Under Rem. & Bal. Code, § 8148, authorizing a county to levy local assessments upon the property benefited in aid of the construction of a government canal or harbor improvement in the county, whenever the Federal government “is intending or proposing the construction” thereof, the power of the county to create the district or initiate the proceedings is dependent upon the antecedent intention of the government, which can only be shown by an act of Congress; in the absence of which, the proceedings by the county are void ab initio, and hence a contract by a river and harbor commission appointed without such antecedent authority is unenforceable.</p> <p>Same — Curative Act — Ratification. Where proceedings to levy assessments in aid of the construction of a government canal under Rem. & Bal. Code, § 8148, were void ab initio, for want of an act of Congress declaring the intention of the government to construct the canal, a subsequent act of Congress declaring the necessary intention cannot operate as a curative act or validate contracts, theretofore made, which it was beyond the power of the municipality to ratify.</p>

<p>Certiorari to review a judgment of the superior court for Pierce county, Card, J., entered September 8, 1918, denying an application for the appointment of an administrator of partnership property, upon sustaining objections to the jurisdiction.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Wright, J., entered April 1, 1913, upon a trial and conviction of sodomy.</p>

<p>Appeal from a judgment of the superior court for King county, Everett Smith, J., entered October £8, 191£, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Statutes — Titles and Subjects — Scope. Tbe title to tbe act of 1911, Laws 1911, p. 504, submitting a constitutional amendment for tbe recall of elective officers, is not defective or misleading because broader than tbe act, in that tbe title refers to all public officers and to tbe election of tbeir successors; while tbe proposed amendment in tbe body of tbe act excepts judges and makes no provision for tbe election of successors; tbe title being sufficient if it indicates to a person of ordinary intelligence tbe substance and scope of tbe act.</p> <p>Same — Single Object. Such act is not subject to tbe objection that it embraces more than one subject, since tbe recall of an officer and tbe election of bis successor do not relate to separate subject-matters.</p> <p>Constitutional Law — Amendments—Proposal — Passage — Requisites — “Entry.” Const., art. 23, § 1, requiring that amendments to tbe constitution proposed by tbe legislature shall be agreed to by two-thirds of tbe members elected to each of tbe two bouses and “entered on tbeir journals” does not require tbe copying of tbe entire proposed amendment in tbe journals of tbe Senate and House, but is complied with by a memorandum entry by reference to tbe proposal, using tbe language of tbe title of tbe act.</p> <p>Constitutional Law — Amendments — Election — Publication oe Notice — Validity. Laws of 1911, p. 505, § 2, submitting a proposed amendment to tbe constitution, and which required tbe secretary of state to publish notice of tbe submission for “three weeks next preceding tbe election,” must be held to have intended to submit tbe amendments in tbe manner required by tbe constitution, art. 23, § 1, by a publication for “three months;” and where tbe secretary of state published tbe notice for three months as required by tbe constitution, tbe election is not invalidated by tbe fact that tbe law directed publication for but three weeks.</p> <p>Same — Ballots—Reverences to Propositions. Tbe statement upon a ballot of a proposed constitutional amendment need not be more than a reference in very general terms to tbe proposed amendment, and is sufficient if, as required of tbe title of an act of tbe legislature, it directs tbe mind of a person of ordinary intelligence to tbe amendment to be voted upon.</p> <p>Officers — -Elective Officers — Recall—Statutory and Constitutional Provisions — Charges—Trial. Laws of 1913, p. 454 (3 Rem. & Bal. Code, § 4940-1 et seq.), intended to provide for the recall of elective officers, as required by the constitutional amendment, art. 1, §§ 33 and 34, is not defective in carrying out the provisions of the amendment, in that while the amendment provides for a recall upon the filing of charges against an officer, the law fails to make any provision for determining the truth of the charges upon which the officer is to be recalled; since that is matter triable before the people rather than the courts, and the constitutional amendment does not give any right to a judicial hearing upon the charges.</p> <p>Same — Recall—Statutes—Retroactive Laws — Remedies. Laws 1913, p. 454 (3 Rem. & Bal. Code, §4940-1 et seq.), providing the method of procedure for recalling elective officers, pursuant to the constitutional amendment adopted at the general election in November, 1912, is remedial and retroactive in effect, to the extent that it authorizes the recall of an officer elected in November, 1912, for subsequent official misconduct committed, however, prior to the taking effect of the law in June, 1913.</p>

<p>Certiorari to review judgments of the superior court for Spokane county, Sullivan, J., entered August 30, 1913, denying writs of mandamus to compel the city council to order recall elections.</p>

B. Thorgrimson, Esq., judge pro tempore, entered April 22, 1912, upon findings in favor of the plaintiff, in an action of replevin, tried to the court.

<p>Appeal — Decisions Appealable — Amount in Controvebsy — Interest. Tbe original amount in controversy determining tbe appeal-ability of a judgment, includes interest, when recoverable, from tbe due date to tbe date wben tbe action is commenced.</p> <p>Appeal — Record—Exceptions. Exceptions to findings of fact and conclusions of law, taken to each finding and conclusion separately by number, are sufficient, without stating tbe basis or reasons for tbe exceptions.</p> <p>Evidence — Written Contracts — Parol Evidence — Bill of Sale. Where a conditional bill of sale recited tbe consideration and provided tbat the vendor was to receive a deferred payment of $430 with interest within sixty days, tbe vendor cannot, in tbe absence of any allegation of fraud or mistake, show by parol evidence tbat there were further deferred payments not mentioned in tbe bill of sale, represented by the notes of third persons, who were the real purchasers, and that the vendee held title in trust to secure such further payments; since the writing was unambiguous and could not be varied by parol, there is in this state no vendor’s lien on personal property in the absence of a contract to that effect, and the bill of sale limiting the security to $430 was a waiver of a lien for any further sum.</p> <p>Sales — Conditional Sales — Contract—Reformation—Warranty —Estoppel. Where defendant advanced $800 of the purchase price of fixtures and a stock of goods, and as security took a conditional bill of sale, reciting a consideration of $800, with a deferred payment of $430, the vendor is not entitled to have the bill of sale reformed to show further deferred payments of $200 evidenced by notes of the parties for whom the stock was purchased, where defendant had no knowledge of such additional consideration; since the vendor is estopped by his contract and warranty from claiming a lien for more than $430, as against the defendant.</p> <p>Sales — Conditional Sales — Warranty—Incumbrances — Taxes. Where a conditional bill of sale expressly warranted against all incumbrances except the deferred payment, the vendee is entitled to an allowance for the amount paid to avoid a distraint against the property for unpaid taxes.</p>

<p>Appeal — Review—Findings. Upon a trial de novo, findings of the trial court upon conflicting evidence are entitled to great weight and will not be disturbed unless clearly against the weight of the evidence.</p> <p>Insurance — Officers anj Agents — Fraud—Secret Profit — Evidence — Sufficiency. The evidence sustains findings that the secretary and general manager of an insurance company which was in financial distress, negotiated a reinsurance contract, which was to have been the basis of a twenty-five per cent discount to his company, and that he secretly arranged with the reinsuring company for ten per cent of the discount to be paid to him personally for services and expenses in reorganizing the field (to be thereafter earned by him) as general manager for the reinsuring company to which position he was appointed, where it appears that the negotiations were by correspondence, the letters on behalf of the two companies made no reference to the 10 per cent payment, which was privately proposed at the same time through the medium of the secretary’s son and accepted in the same way, and the general manager of the reinsuring company made statements indicating that his company had been willing at first to allow 25 per cent discount, which was afterwards changed to 15 per cent to the company and 10 per cent to its secretary, and that the same was kept secret from the directors and other officers of the company.</p> <p>Same — Fraud—Evidence—Admissibility. In an action to- recover from a former officer of an insurance company a secret profit collected by him on negotiating a reinsurance contract with another company, in which the defendant claimed that the payment was made to him for services to be thereafter performed and expenses incurred, declarations of the general manager of the other company are admissible against the defendant, although not made in his presence, as tending to prove the true character of the transaction upon the issue of fraud, where both participated therein.</p> <p>Same — Acts of Officers — Secret Profit — Regality of Contract. An agreement for reinsurance, whereby the reinsuring company secretly agreed to pay 10 per cent of the unearned policies reinsured to the secretary and general manager of the other company, then conducting the negotiations, is illegal, and it is immaterial that'the same was regarded as pay for services and expenses in reorganizing and holding the field, as agent for the reinsuring company; since the secretary occupied a position of trust, and it was his duty to make the best bargain possible and disclose every material circumstance affecting the subject-matter of the agency.</p> <p>Same — Secret Profit — Recovery—Parties' Liable. In such a case, where the reinsuring company participated in the fraud and paid the 10 per cent after notice of the claims of the other company, it is liable to an accounting therefor, equally with the guilty officer.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered May 8, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Sales — Breach of Contract by Seller — Measure of Damages. Upon rejecting goods, because not conforming to tbe contract, tbe purchaser is entitled to recover as damages the difference between the contract price and the fair market value at the time of the rejection, together with the sum advanced to pay the freight.</p> <p>Same — Measure of Damages. Where church pews were rejected because not conforming to the contract, the vendor cannot offset against the vendee’s damages the balance of the unpaid purchase price after deducting the difference between what they were actually worth and the contract price; since there was no acceptance.</p> <p>Sales — Acceptance — Retention and Use. Where church pews were rejected because not conforming to the contract, the purchaser is not precluded from recovering damages by the fact that the pews were left in its possession and used, after notice to the vendor to remove them, the contract having provided that the vendor retained the title.</p>

<p>Master and Servant — Injuries to Servant — Medical Attendance. An employer furnishing medical attendance without profit to itself, is liable for the consequence of unskillful treatment only in case of failure to exercise reasonable care in the selection of a competent surgeon.</p> <p>Same — Employment of Surgeon — Notice of Incompetency — Evidence. In an action against an employer for negligence in employing an incompetent surgeon to treat employees, evidence of alleged malpractice by the physician, occurring six years before he was engaged by the defendant, is inadmissible as too remote to show notice of his incompetency.</p> <p>Same — Evidence of Incompetency — Reputation—Notice. In such a case, evidence of specific acts of alleged malpractice, occurring after the case at bar arose, or the surgeon’s reputation at the time of the trial, is inadmissible to establish the defendant’s negligence in employing or retaining him.</p> <p>Same. In such a case, nonexpert evidence of two alleged cases of incompetency as an obstetrician, not brought home to the defendant by any kind of notice, is inadmissible to prove the defendant’s negligence in employing a surgeon to treat men employed in a logging camp.</p>

Application filed in the supreme court October 21, 1913, for a writ of prohibition or a writ of certiorari to review an order of the superior court for Grant county, Steiner, J., entered October 21, 1913, denying leave to file a complaint in intervention and refusing to abate tbe trial of condemnation proceedings.

<p>Appeal — Decisions Reviewable — Cessation op Controversy — Moot Questions. In an action to restrain the payment of a city warrant where the sole question was whether the city had exceeded its limit of indebtedness, payment of the warrant by the city treasurer, who was not made a party, determines the controversy and requires the dismissal of a pending appeal, since only a moot question was left.</p>

Application filed in the supreme court July 1913, for a writ of prohibition to the superior court for Lewis county, Wright, J., to prohibit proceedings in pending actions.

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered December 6, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

<p>Eminent Domain — Damages—Compensation—Time op Accrual. Under the constitutional provision that no private property shall be taken for public use without damages being first ascertained and paid, the damages to abutting property from the construction of a railroad in the street, in a proceeding tried as a condemnation case, must be ascertained as of the time of the trial; since, in contemplation of law, there can be no taking until damages have been ascertained and paid.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered April 14, 1918, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Municipal Corporations — Claims — Presentation — Necessity— Failure to Give Notice — Excuse. Rem. & Bal. Code, § 7998, providing that all claims for damages against any city or town of the second, third or fourth class, must be presented to the council and filed with the city clerk within thirty days after the time when such claim accrued, fixes a mandatory condition precedent to action which is not excused by physical or mental disability rendering performance impossible.</p> <p>Statutes — Validity—Construction. The policy, expediency and wisdom of an act are legislative and not judicial questions.</p>

, entered September 12, 1912, confirming an assessment for a local improvement, upon appeal from the eminent domain commissioners.

<p>Guaranty — Performance of Contract. A written guaranty to deliver certain notes and collateral is not substantially complied with unless all the notes correctly described therein are delivered.</p> <p>Guaranty — Consideration. The personal guaranty of the vice president of a trust company to deliver certain notes and collateral is founded on a sufficient consideration, where on the faith of the promise money was paid to the trust company; since a detriment to the promisee is as much a consideration as is a benefit to the promisor.</p> <p>Guaranty — Breach — Partial Performance — Measure of Damages. In an action for damages for breach of a contract of guaranty, whereby, in consideration of $15,000, the defendant promised to deliver certain notes and collateral, and forbear on other claims, the measure of damages is the actual losses sustained, and not the return of the entire sum advanced, where the contract had been partially performed by delivering the greater part of the notes and collateral described and by granting the forbearance.</p> <p>Damages — Failure of Proof — Nominal Damages. In an action for damages for breach of a contract of guaranty, failure to prove substantial damages is failure to prove the substance of the issue, entitling defendant to judgment; hence it is not reversible error to fail to give nominal damages on proof of a partial breach resulting in no actual loss.</p>

, entered April 24, 1912, in favor of the defendant notwithstanding the verdict of a jury for the plaintiff, in an action for wrongful death.

, entered February 13, 1912, upon granting a nonsuit, dismissing an action in tort, after a trial before the court and a jury.

<p>Corporations — Stock—Increase — Subscriptions — Payment. If tbe assets of a corporation, exceed its debts and the amount of the capital stock, the excess may be applied in payment of increased capital stock issued to its stockholders, the same being in the nature of a stock dividend.</p> <p>Same. In such a ease, part of the increased capital stock may be issued to an outsider, where, by agreement, all the stockholders grouped their interest in the assets together with their undivided property and that of the outsider, as one fund to liquidate the subscriptions, if the total was equal to the par value of the stock as increased, less the original capital stock and debts.</p> <p>Same — Stock—Subscription—Payment—In Property. The stock of a corporation is a trust fund for the benefit of creditors that must be paid for in money or money’s worth, where the rights of creditors are affected; hence a receiver may recover of an insolvent corporation on stock subscriptions paid for in property of less value than the par value of the stock.</p> <p>Appeal — Review—Findings. Upon appeal, findings of a trial court on conflicting oral evidence are entitled to great weight, but are not controlling; especially where the facts were not found, and the finding was hut a conclusion.</p> <p>Corporations — Stock—Subscriptions—Actions—Evidence — Stjeeiciency. In an action hy a receiver of an insolvent corporation to recover unpaid stock subscriptions paid for in property of materially less value than the par value of the stock, the value of the assets of the corporation is material and necessary to fix the amount of the liability.</p> <p>Appeal — Review—Invited Error. Appellant cannot predicate error upon the exclusion of evidence invited by his objection thereto.</p>

<p>Appeal from a judgment of the superior court for King county, Everett Smith, J., entered October 25, 1912, dismissing an action in tort, upon sustaining a demurrer to the complaint.</p>

<p>Municipal Corporations — Improvements—Bonds—Special Fund —Validity. Where a city water system was to be paid for by an issue of $70,000 in general bonds of the city, and the balance, estimated at $115,000, by special water fund bonds payable out of the revenues of the water system, a special fund created to take care of the matter, by the payment of a fixed sum each month out of the revenues of the plant, is not invalid from the fact tuai such monthly payments are to be made ■ from a collection fund having in it other moneys than revenues from the' plant, where such revenues can be readily segregated, and the special fund was created in all respects as required by Rem. & Bal. Code, § 8008, providing that the council shall have the power to create a special fund for the sole purpose of defraying the cost of any public utility, in which special fund the city may be obligated to set aside a fixed proportion of the gross earnings of the utility or a fixed amount without regard to any fixed proportion, and to issue bonds or warrants payable out of such fund; since it would not be assumed that the special fund bonds would at some future time be paid from any part of the fund not derived from revenues.</p> <p>Same — Bonds—“Sale.” Under Rem. & Bal. Code, § 8007, providing that general fund bonds may be sold in such manner as the corporate authorities shall deem best, a city may provide, in letting a contract for water works, that the bonds may be delivered to the contractor in payment for the work; such a transaction being a “sale” within the meaning of the act.</p> <p>Same — Contracts—Loaning of Credit — Warrants. An agreement in a contract for the construction of city water works providing that warrants are to be issued to the contractor during the progress of the work, and exchanged for special fund bonds, when issued, is not a loaning of the credit of the city; but a mere issuing of a certificate acknowledging a preexisting debt.</p>

<p>Sales — Time of Payment — Evidence — Sufficiency. A finding that sixty days’ credit for trade discounts was given is warranted, where the order was silent as to the time of payment, but the acceptance of the order stated those terms, and the seller’s general manager testified that those were the terms of sale.</p> <p>Appeal — Review—Waiver of Error. Appellant cannot predicate error on a finding of fact as alleged and proved by him.</p> <p>Appeal — Review—Findings. Findings on contested facts will not be disturbed on appeal where the evidence to the contrary is not so preponderating as to show error.</p> <p>Sales — Delivery—Damages for Delay — Waiver. The mere receipt of part of goods purchased subsequent to the time fixed for delivery, does not waive the right to recover damages for the delay, especially where attention was repeatedly called to such damages.</p>

<p>Homesteads — Declaration—Statutes. An unacknowledged declaration of homestead is not valid as against an execution, under Rem. & Bal. Code, § 558, requiring that the declaration he executed and acknowledged.</p>

, entered November 20, 1912, dismissing on the merits consolidated actions for equitable relief, after a trial to the court.

<p>Venue — Change—Bias oe Judge — Time for Application — Rules of Court. A rule of court in a county where there were nine departments, requiring applications for change of venue on account of the bias of the judge to be made prior to the setting of the cause for trial, is unreasonable and in contravention of the statute, where it could not then be known what judge would be assigned to the department in which the case was set for trial.</p>

<p>Robbery — Evidence—Sueeiciency. There is sufficient evidence to sustain a conviction of robbery where the story of the prosecuting witness as to being attacked, robbed, and thrown into the water was fully corroborated by his condition shortly after, and by pools of blood at the place of the attack, and his purse, the contents of which he had correctly described, was a few hours later found concealed in the mattress upon which the defendant was sleeping; and the fact that he positively identified two others who assisted the defendant and were acquitted on an alibi, is immaterial.</p> <p>Criminal Law — Evidence—Photography. In a prosecution ' for robbery, in which the victim was wounded in the. neck, it is discretionary to receive in evidence a photograph correctly showing his condition at the time it was taken a few days after the assault, where the condition had not 'materially changed.</p> <p>Criminal Law — New Trial — Newly Discovered Evidence — Diligence. A new trial for newly discovered evidence is properly refused where the same was merely cumulative, and no diligence had been used to secure it before the trial.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered April 9, 1913, upon a trial and conviction of obtaining money upon- false pretenses.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered February 27, 1913, upon a trial and conviction of malicious injury to property.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered February 26, 1913, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered September 19, 1912, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Principal and Agent — Authority or Agent — Evidence. In an action against an insurance company and its selling agent, to recover commissions earned by plaintiff on the sale of stock, printed matter outlining its plan of operations and commending it as an investment feature is not admissible, as against the company, upon an issue as to whether plaintiff was employed by the company or by the selling agent, in the absence of any proof that the company had issued or authorized the publications; and a hearsay statement that it was issued by the company, and the fact that it was mailed from S. where both the selling agent and the company were located, is not sufficient proof of the company’s connection therewith.</p> <p>Principal and Agent — Liability or Principal to Third Persons —Election to Hold Agent. In an action against a principal and its selling agent, to recover commissions earned by plaintiff on the sale of stock, a prior election by plaintiff, with full knowledge of the facts, to hold the agent precludes any recovery against the company.</p>

, entered May 21, 1913, reversing a decision of the public service commission as to minimum rates to be charged by a gas company.

<p>Appeal from a judgment of the superior court for Chehalis county, Sheets, J., entered January 2, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Appeal — Review—Verdict. A verdict upon conflicting evidence will not be disturbed on appeal, where it was supported by substantial evidence and the trial court refused to set it aside as against the weight of the evidence.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh-, J., entered January 21, 1913, dismissing an action for wrongful death, upon overruling a demurrer to the answer.</p>

<p>Contracts — Consideration-—'Sufficiency • — ■ Gifts. Where it became necessary under tbe law to reduce tbe number of saloons by three, and three saloon keepers agreed not to apply or compete with tbe others for license renewals, in consideration of $500 to be paid to each, from a fund raised by tbe others, there was a valuable consideration for the agreement to pay; and one collecting the fund cannot claim that the transaction was an uncompleted gift.</p> <p>Money Received — Liability—Consideration. One who collects and receives a fund contributed by others to be paid to plaintiff for his own use and benefit, is liable for money had and received, without regard to the question of consideration for the fund.</p>

<p>Appeal from a judgment of the superior court for King county, Everett Smith, J., entered Miarch 5, 1913, upon findings in favor of the plaintiffs, in an action for specific performance.</p>

<p>Appeal from an order and judgment of the superior court for King county, Humphries, J., entered March 4, 1913, denying a motion and modifying a judgment.</p>

<p>Attachment — Immature Debt — Complaint—Sufficiency. A complaint for an attachment upon an immature debt must show on its face the reasons authorizing its premature filing, under Rem. & Bal. Code, § 649, or it is obnoxious to a demurrer for want of sufficient facts.</p> <p>Appeal — Review-—Interlocutory Orders — Sufficiency of Complaint. An appeal from an order refusing to dissolve an attachment, being from an interlocutory order, only brings up for review error going to the merit of the particular question; hence error in overruling a demurrer to a complaint which is capable of amendment, will be considered only on appeal from the final judgment.</p>

<p>Criminal Law — Evidence—Identity of Accused — Sufficiency. The identity of accused, who was chased from the scene of an attempted burglary, and caught by a policeman, is a question for the jury, where the policeman testified that the accused fled, dodging around corners, that he gave chase and had accused in view after making each turn until the capture, especially where the accused was a witness in his own behalf and his testimony was unsatisfactory.</p> <p>Criminal Law- — Trial—-Instructions — Presumption of Innocence. In an instruction on the subject of reasonable doubt as to the identity of the accused, an expression to the effect that if he is the man “to blame” or “not to blame” the jury must say so, is not prejudicially erroneous in that it tends to minimize or destroy the legal presumption of innocence, where the instructions as a whole did not tend to authorize a conviction unless the jury found his conduct blameless, and from the context it is evident that “blame” was used as synonymous with the word “guilty.”</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered March 1, 1913, dismissing an action upon an indemnity bond, after a trial on the merits to the court.</p>

<p>Corporations — Capital Stock- — Subscriptions—Agreement to Repurchase — Validity. A contract whereby a corporation sold part of its capital stock agreeing to repurchase the same if the stockholder should become dissatisfied, is against public policy and void, in view of Rem. & Bal. Code, § 3697, providing that it shall be unlawful for the trustees to make any dividend except from the net profits, nor divide, withdraw, or pay to the stockholders any part of the capital stock, nor to reduce the same except in the manner prescribed by law; and it is immaterial that the rights of creditors of the corporation are not involved.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered January 3, 1913, in favor of the plaintiff, in an action to quiet title, after a trial on the merits.</p>

Appeal by defendant from a judgment of the superior court for Thurston county, Mitchell, J., entered November 11, 1912, upon the verdict of a jury awarding damages in a condemnation proceeding.

, entered May 21, 1913, in favor of the plaintiff, upon an agreed statement of facts, in an action to restrain the collection of taxes.

<p>Appeal from a judgment of the superior court for King county, Everett Smith, J., entered June 6, 1.913, upon findings in favor of the plaintiff, in an action to enjoin the issuance of county bonds, after a trial to the court.</p>

Motion filed in the supreme court December 1, 1913, for an order showing the consideration of a Federal question in denying a petition for rehearing.

<p>Sales — Conditions—Performance—“At Any Time” — Reasonable Time. A contract for the sale of investment bonds with an option to return the same “at any time” if the purchaser desired, merely gives him a reasonable time to act; and his offer to return them, after accepting quarterly earnings for more than six years, is not within a reasonable time.</p> <p>Limitation of Actions — Accrual of Action — Demand—Tolling Statute. Where bonds were purchased under an option to return the same “at any time,” limitations upon the purchaser’s right of action for refusal to accept a return of the bonds began to run at the date of the contract, since a party may not toll the statute of limitations; hence the action is barred after six years.</p>

, entered October 21, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

Cross-appeals from a judgment of the superior court for King county, Ronald, J., entered October 20, 1911, upon findings in an action bn contract tried to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered January 81, 1912, dismissing an action for breach of contract, upon sustaining a demurrer to the complaint.</p>

, entered January 3, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages from breach of implied contract.

<p>Criminal Law — Venue—Evidence—Sufeiciency. Evidence that a crime was committed at a restaurant and that the restaurant where the crime was “supposed to have been committed” was located in “Bellingham, Whatcom County, Washington,” is sufficient proof of the venue laid in Whatcom county.</p>

, entered February 10, 1913, upon findings in favor of the defendant, in an action for damages for fraud on the sale of corporate stock, tried to the court.

, entered May 8, 1913, upon findings in favor of the defendant, for personal injuries sustained by a pedestrian in a fall upon a sidewalk.

, entered January 4, 1913, upon findings in favor of the defendant, in consolidated actions to establish joint rates, sustaining an order of the public service commission.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered September 9, 1913, dismissing an action to collect a tax, upon overruling a demurrer to the answer.</p>

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

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered January 12, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Appeal — Review—Denial of New Tbial — Abuse of Discretion. On motion for a new trial for insufficiency of the evidence to sustain the verdict, it is the duty of the trial judge to determine whether the evidence is sufficient or insufficient; and it is an abuse of discretion to refuse the new trial, when the evidence is insufficient, and when satisfied of that fact.</p> <p>Fraud — Sale of Stock — Actions — Evidence of Fraud — Sufficiency. The evidence is insufficient to support a verdict for the plaintiff, for fraudulent representations alleged to have been made by the defendant on the sale of stock, where the evidence that the defendant sold the stock, as claimed by plaintiff and his wife, was uncertain, contradictory, and entitled to little weight, and was contradicted by three witnesses and in conflict with undisputed facts and circumstances, and it appears that plaintiff and his wife had never seen defendant before, nor afterwards for nearly three years, and must have been mistaken in their identification.</p> <p>Evidence — Hearsay. In an action for fraud in the sale of stock, upon an issue as to the identification of the defendant as to whether he was the man who made the representations, evidence that the plaintiff was advised by a fortune teller to purchase the stock and to see the defendant about it, is inadmissible as hearsay, where defendant had no acquaintance with the fortune teller and had never seen him.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered June 26, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Liens — Farm Labor — Crops—Notice—Description op Property. Under tbe statute requiring a notice of lien on farm crops to contain a description of the property to be charged, sufficient for identification, lien claims upon a crop of wheat are insufficient, where the only description of the subject-matter was the legal description of the land and a “certain crop” grown thereon.</p> <p>Warehousemen — Liability — Trover and Conversion. A warehouseman who refused to deliver wheat stored or to return the warehouse receipts, upon demand, after notice of satisfaction of all valid liens for labor, is guilty of a conversion and liable for the value of the wheat.</p>

<p>Limitation of Actions — On Contracts — Written or Oral. Where a written order for nursery stock did not contain anything as to the price of trees, and resort must be had to oral testimony, an action thereon for breach of warranty arises out of a contract partly oral and partly written, and is accordingly barred within three years after the action accrues, by Rem. & Bal. Code, § 159, relating to actions on oral contracts.</p> <p>Sales — Warranty—Nursery Stock — Construction. Upon a sale of nursery stock, under a warranty that the trees sold were Carman peach trees, it was intended to warrant that the peaches produced, if any, would be of that variety.</p> <p>Limitation of Actions — Accrual of Action — Future Event— Warranty of Nursery Stock. An action for breach of warranty of nursery stock, warranting that the peaches produced, if any, would be Carman peaches, does not accrue, and the statute of limitations does not begin to run, until a reasonable time has elapsed to ascertain the truth.</p>

Application filed in the supreme court October 17, 1913, for a writ of mandamus to compel the superior court for King county, Humphries, J., to proceed with the trial of a cause.

, entered July 17, 1911, upon findings in favor of the plaintiff, in an action for breach of covenants against incumbrances, after a'trial to the court.

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered November 8, 1911, upon the verdict of a jury rendered in favor of the defendants, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Whatcom county, Hardin, J., entered February 3, 1912, upon a trial and conviction of a violation of the eight-hour day lav?.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered November 30, 1912, upon findings in favor of the defendant, granting a divorce upon a cross-complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered March 14, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>