Volume 77 — Washington Reports

<p>Motion to dismiss an appeal from a judgment of the superior court for Yakima county, Preble, J., entered August 2, 1913. Denied.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered January 15, 1913, confirming an assessment.</p>

<p>Venue — Change—Bias of Judge — Time for Application. In an action for an injunction, an application for a change of judges, under 3 Rem. & Bal. Code, § 209-1, is too late, when not made until after a hearing upon a show cause order and the granting of a temporary injunction upon such hearing.</p> <p>Judges — Disqualification—Statutes—Time for Challenge. Under Rem. & Bal. Code, § 209, disqualifying a judge who had “been counsel for either party in the action or proceeding” a trial judge is not disqualified from the fact that before going on the bench his law firm had represented one of the parties in other matters; especially where the challenge was not made until after the respondent had rested his case.</p> <p>Navigable Waters — Streams—Navigability. A stream is navigable, where during freshets regularly recurring during certain months, there was sufficient water, in its natural state, to float shingle bolts and forest products without using the bants of the stream; and it is immaterial that it was necessary.to remove windfalls and artificial obstructions caused by logging the land to restore the stream to its natural state.</p> <p>„ Appeal — Review—Exceptions. The insufficiency of the evidence cannot be assigned as error, in the absence of exceptions to the findings of fact.</p>

<p>Municipal Coepoeations — Steeets — Defective Sidewalks — Negligence of City — Contbibutoby Negligence — Evidence — Question fob Juey. The negligence of a city in maintaining a temporary sidewalk six inches lower than the cement walk with which it connected at a street intersection, is for the jury, where it appears that the temporary walk had been so maintained for several months, that the street lights were so placed as to cast a shadow upon the offset, and the street was not closed to travel, and no warnings were posted; since it was the duty of the city to close the street or take reasonable precautions where it undertakes to improve a street.</p> <p>Same — Steeets—Defective Sidewalks — Contbibutoby Negligence —Evidence—Question fob Juey. The contributory negligence of a pedestrian in falling at night at a street intersection, or in failing to take a safer way, is for the jury, where there was a drop of six inches from a cement sidewalk to a temporary board walk, where improvements were in progress, no warnings were posted, and the street lights were so placed as to throw a shadow obscuring the offset, and the walk on the other side of the street had obstructions and red lights hung out; since a traveler may use any street that is open for travel.</p> <p>Same — Defects in Steeets — Liability of Conteactob — Evidence —Sufficiency. A street contractor doing the cement work in a street is not liable for an injury sustained by a pedestrian by reason of an offset of six inches in a temporary board sidewalk at a street intersection, where he had done no work in the sidewalk area and it did not appear who had constructed the board walk.,</p>

, entered May-29, 1913, dismissing an action for partition, upon denying plaintiff’s motion for judgment on the pleadings.

<p>Appeal — Review—Verdicts. A verdict supported by substantial evidence, cannot be set aside on appeal because against the weight of the evidence, where the trial court refused to grant a new trial for insufficiency of the evidence.</p> <p>Appeal — Record—Remarks of Counsel — Affidavits—Statement of Facts — Necessity. Error cannot be assigned on misconduct of counsel in argument to the jury, where the remarks were not taken down or reduced to writing and preserved in the record, but were shown only by affidavits on a motion for new trial, denied by counter affidavits, and not certified by the trial judge and made a part of the statement of facts.</p> <p>Trial — Special Interrogatories — Discretion. Whether interrogatories or special findings shall be submitted to a jury is a matter entirely within the discretion of the trial court.</p> <p>New Trial — Misconduct of Jury — Quotient Verdict. The rendition of a “quotient” verdict, in an action for damages, is not ground for a new trial, where it does not appear that the jurors had agreed in advance to be bound by the quotient, each having merely stated the amount he deemed proper, and after the quotient was ascertained, the requisite number agreeing to accept the same.</p> <p>Damages — Personal Injuries — Excessive Verdict. The damages in a personal injury case will not be held excessive where, if the plaintiff’s evidence is believed, there was substantial evidence to sustain the amount of the verdict.</p>

<p>Eminent Domain — Delegation of Power — Telephone and Telegraph Companies — Statutes—Construction. Const., art. 12, § 19, and Rem. & Bal. Code, § 9304, requiring railroad companies to allow telegraph and telephone companies to maintain lines on the railroad right of way, and authorizing such companies to enter upon and appropriate portions of the right of way of a railroad company not interfering with the operation of the railroad, do not limit such companies to the use of railroad rights of way, when they were, by the same sections, given the right of eminent domain generally as to lands “actually necessary” for the line; hence they may condemn a strip of land privately owned, although it is adjacent to a railroad right of way.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered October 19, 1912, appointing a guardian upon a contested hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered March 15, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger on a street car in a collision with an automobile.</p>

<p>Railroads — Grossing Accident — Contributory Negligence — Question for Jury. It is not contributory negligence as a matter of law, for the driver of a team, waiting at a double track crossing for a freight train to pass south on the near track, to start to cross immediately after the last car had passed, where it appears that, at the point where he was waiting, he had a view of the approach of north-bound trains for a distance of nearly 700 feet, and he looked and neither saw nor heard a train, and the city speed limit for trains at that point was six miles and hour, and he was struck by a train going at least 10 miles an hour, after getting his horses across the far track.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for ?3,000 for injuries sustained when struck by a passenger train at a crossing is not excessive, where plaintiff wais rendered unconscious, his wrist broken and crushed, and his shoulder badly injured, and his injuries were permanent.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered May 5, 1913, upon the verdict of a jury rendered in favor of the defendant, in an action for breach of a contract of carriage.</p>

, entered October 4, 1912, granting a new trial, after the verdict of a jury rendered in favor of the plaintiif, in an action for fraud.

<p>Extradition — Interstate—Requisites. Under the U. S. Const., art. 4, §2, and U. S. Rev. Stat. §5278, providing for interstate extradition of fugitives from justice, the accused must be demanded as a fugitive from justice by the executive of the state from which he fled, and the demand must be accompanied by a copy of the in■dictment or an affidavit 'made before a magistrate charging the commission of a crime, which copy must be certified to be by the executive of the demanding state.</p> <p>Habeas Corpus — Return—Demurrer. In a habeas corpus to release a prisoner, a demurrer to the officer’s return admits all the allegations thereof.</p> <p>Extradition — Interstate—Warrant—Sufficiency. An executive warrant for the extradition of a fugitive from justice need not define the crime with which the accused is charged, where it recites that he was charged with a crime, and was accompanied by the certified copy of the indictment or the charge made before a magistrate, as required by the act of Congress.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Kellogg, J., entered June 22, 1912, upon a trial and conviction of grand larceny.</p>

<p>Mechanics’ Liens — Persons Entitled — Subcontractor or Materialmen — Laborers Employed by Materialmen — Statutes—Construction. One who contracts to furnish, from his own screening plant, at so much per yard, all the sand and gravel needed for cement work by a contractor on an irrigating canal, is not a subcontractor, but a materialman, and men employed by and looking to him for their pay are not entitled to a lien as laborers performing work on the canal; in view of the distinction between subcontractors and materialmen made by Rem. & Bal. Code, § 1129, giving liens to every person performing labor upon or furnishing materials to be used in the construction of the canal, at the instance of the owner or his agent, and making contractors, subcontractors etc. agents of the owner; since no lien is accorded to laborers of materialmen, who are not made agents of the owner.</p> <p>Same — Materialmen—Necessity oe Notice — Subrogation. Unpaid laborers working for á materialman could not be subrogated to the right of a materialman's lien, where no notice in writing was given to the owner of the furnishing of the materials as required by 3 Rem. & Bal. Code, § 1133.</p> <p>Appeal — Review—Findings. In actions tried to the court there is a trial de novo on appeal, and the findings will be sustained only when supported by a fair preponderance oí the evidence.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered November 23, 1912, upon a trial and conviction of grand larceny.</p>

<p>Eminent Domain — Damages—Special Benefits — Offset. . In eminent domain proceedings by a city, in which the damages are to be paid from the general fund, benefits may be offset against the damages, under the express provisions of Rem. & Bal. Code, § 7782.</p> <p>Same — Benefits-—Offset. Benefits may be offset against the damages on condemnation of property by a- city at the expense of the general fund, without violating any constitutional rights of the property owner.</p> <p>Same — Benefits — Offset — Evidence — Admissibility. Benefits may be offset against the damages on condemnation of property by a city at the expense of the general fund, although the benefits resulted from improvements to follow which were not provided for in the condemnation ordinance, where competent evidence established the nature and extent of such improvements with reasonable certainty, and that they would be completed within a reasonable time, and that the two proceedings constituted one united object.</p> <p>Same — Adjudication—Conclusiveness—Matters Concluded. The condemnation of land for a boulevard, is not an adjudication affecting the right of the city to offset benefits in subsequent condemnation proceedings to acquire additional rights incident to the improvement of the boulevard.</p> <p>Same — Benefits—Offset—Apportionment. In offsetting benefits against damages in eminent domain proceedings by a city, only the special benefits peculiar to particular property can be considered, and there can be no question as to the apportionment of the benefits between separate properties.,</p> <p>Same — Damages—Benefits—Offset — Evidence — Admissibility. Upon the question of the amount of benefits to he offset against the damages in eminent domain proceedings by a city, it is competent to show the amounts which would have been chargeable against the property upon a special assessment plan for the same improvement.</p> <p>Same — Benefits—Offset—Separate Tracts. Benefits to one lot cannot be offset against the damages due to the same owner for injury to a contiguous lot; hence it is error to treat two lots as one tract of land, where they were unoccupied and not used in common, and each was of sufficient size to admit of separate use; whether their use and situation made them in fact one parcel, being a question for the jury, unless there is no room for different opinions.</p>

<p>Appeal — Notice—Statement of Pacts — Time for Piling. The time for taking an appeal or filing a statement of facts runs from the denial of appellant’s motion for a new trial, when made after judgment.</p> <p>Same — Statement of Pacts — Extension of Time — Notice. Under Rem. & Bal. Code, § 393, authorizing an order extending the time for filing a statement of facts, upon notice to the adverse party, an ex parte order extending the time is void; and it is immaterial that the extension was obtained by the official stenographer.</p> <p>Same — Statement of Pacts — Necessity. The necessity of a statement of facts is not obviated by 3 Rem. & Bal. Code, § 1730-2, relating to abstracts on appeal.</p> <p>Same — Statement of Pacts — Extension'—Objections. It is not necessary to attack in the superior court a void order extending the time for filing a statement of facts entered without notice.</p>

, entered July 25, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Appeal from a judgment of the superior court for King county, Grady, J., entered January 13, 1913, upon findings in favor of one of the defendants, in an action to foreclose a chattel mortgage.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered January 17, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Master and Servant — Safe Place — Assumption of Bisks. A servant who made daily use for a year and a half of a perpendicular ladder nailed to the side of a building assumes the risks from improper construction of the ladder, or want of sufficient light, or from the fact that the ladder was perpendicular, throwing great weight on the hands.</p> <p>Master and Servant — Safe Place — Negligence—Evidence—Sufficiency. The negligence of the owner of a foundry, in removing one step of a ladder on the side of the building, and allowing a portion of the framework of the building to take its place, but which was too large to be grasped by the hands, is not sufficiently established, where the only evidence of its removal was the statement of the plaintiff, who testified that the ladder was in perfect condition a year and a half before the accident, and he did not notice the defective condition until just before he fell, after having used the ladder many times each day, and six or seven times previously on the day of the accident, there being no evidence that any one else was on the ladder after he had last used it; since he either assumed the risks, or if the step was removed after he last used it, the master had no notice thereof.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered July 22, 1912, upon findings in favor of the plaintiff, in an action to recover for the support of a minor child.</p>

<p>Frauds, Statute of — Orad Contract to Make Wild. An oral agreement between husband and wife to make wills whereby each left all property to the other, is within the statute of frauds and void.</p> <p>Same — Part Performance — Wills. The execution of a will is not such part performance of an oral contract to leave property to another as to take the contract out of the operation of the statute of frauds.</p> <p>Wills — Revocation. A will executed in pursuance of an oral contract to leave property to another, void under the statute of frauds, is effectually revoked by the making of a subsequent will without notice to tbe beneficiary.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered March 31, 1913, upon findings in favor of the defendant, dismissing, on the merits, an action for rescission.</p>

, entered April 11, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action by a passenger assaulted by a fellow passenger on defendant’s boat.

<p>Appeal from a judgment of the superior court for King county, Alston, J., entered July 18, 1913, dismissing, on the merits, an action for an injunction, after a trial to the court.</p>

<p>Landlord and Tenant — Contract to Lease — Breach—Measure of Damages. Upon breach of a contract to lease by refusing to accept the building, the action is entire, and the owner’s measure of damages is his loss, if any, by reason of the difference between the entire rent reserved and the entire rental value for the term at the time of the breach.</p> <p>Same — Breach—Damages—Evidence—Admissibility. In an action for breach of a contract to enter into a lease, which provided that the lessee should not engage in any unlawful business, the fact may be shown that the building was within 300 feet of an armory, and therefore could not be leased for saloon purposes, under Rem. & Bal. Code, § 7229.</p> <p>Same — Damages — Evidence — Admissibility. In an action for breach of a contract to lease a building for a term of years, by. refusing to accept the building, plaintiff cannot show the rental value at the time of the breach by showing that the rental value had decreased from year to year.</p> <p>Corporations — Written Contracts — Authority of Officers. A lease executed by the president and secretary of a corporation but not attested by the corporate seal, is not admissible without proof of their authority, express or implied, or ratification by the corporation, where their authority was denied.</p> <p>Appeal — Decision—Law of Case. A decision on a former appeal that an instrument was the “bounden contract” of the appellant, on which an action for its breach would lie, is conclusive on a subsequent appeal that the contract was not void on its face.</p> <p>Constitutional Law — Due Process of Law — Pleadings—Amendment. An amendment of a complaint so as to present issuable facts, as directed by the supreme court upon’a former appeal, does not deprive the defendant of property without due process of law.</p> <p>Appeal — Decision on Prior Appeal- — Law of Case. A decision on a former appeal becomes the law of the case upon a subsequent appeal.</p>

<p>Boundaries — Streams—Meander Lines — Evidence—Sufficiency. Where the thread of a constantly changing stream was fixed as a boundary line at a certain date, the government meander lines, run many years before, do not control the boundary as against a subsequent survey and other evidence tending to show the location of the stream at the time it was fixed upon as the boundary line.</p> <p>Same — Evidence—Acquiescence—Area. Where a line, acquiesced in for some time, gives the true area of adjoining tracts, it is strong evidence of the true boundary line.</p> <p>Actions — Joinder—Equity and Law — Damases—Jurisdiction in Equity. In an equitable suit to establish the thread of a stream as a boundary line, there may be joined a claim for damages for obstructing the stream, where objection is not raised below, and equity having acquired jurisdiction may grant full relief.</p>

<p>Libel and Slander — Words Libelous Per Se — What Constitutes. Newspaper articles plainly intended to bring a person into public hatred, contempt, or ridicule, are libelous per se, although not attacking him in his business or profession, or charging him with an infamous crime.</p> <p>Same — Words Libelous Per Se — Special Damages — Pleading— Complaint — Sufficiency. Newspaper articles are libelous per se without alleging special damages, where they falsely and maliciously charge plaintiff with the violation of a statute defining the public desecration or disrespect of the United States flag, and calls him a “redtinted agitator” voicing “constructive sedition and treason” and wantonly “insulting the symbol of patriotic allegiance,” and declaring that there was a public clamor for his prosecution; and the complaint in such case requires no innuendo to construe the same as intending to bring him into public hatred, contempt and ridicule.</p>

<p>Eminent Domain — Waterways — Proceedings — Jury Trial— Challenges. In a special proceeding to establish a waterway district, all the defendants must join in peremptory challenges to jurors, since the special law does not provide for peremptory challenges, and the general statutes require all defendants to join.</p> <p>Same — Compensation—Navigable Waters — Diversion—Rights of Riparian Owners. The state being the owner of the beds of navigable rivers, under the constitutional assertion of art. 17, § 1, riparian owners are not, in eminent domain proceedings to establish a waterway district, entitled to damages from the fact that the state will divert the course of the stream and leave their property without access to the water.</p> <p>Same— Benefits — Assessment — Determination — Proceedings. 3 Rem. & Bal. Code, § 8177-2, requiring the jury to find the maximum amount of benefits.from the establishment of a waterway district, merely fixes a basis for and limitations upon the assessment to be made later, and hence is not objectionable in that the amount of benefits found greatly exceed the cost of the improvement.</p> <p>Evidence — Experts—Opinions—Value. Where expert witnesses on land values qualified on direct examination, their testimony was competent, lack of qualifications disclosed on cross-examination going only to the weight of the evidence.</p> <p>Eminent Domain — Proceedings-—-Instructions—Effect of View. In eminent domain proceedings, an instruction to the jury on the subject of their view of the premises, properly stating the effect thereof in weighing and applying the evidence, is not erroneous in that the jury were told that “what they see they know.”</p> <p>Same — Proceedings—Appeal—Review—Verdict. In eminent domain proceedings to establish a waterway district, the jury’s verdict as to the amount of benefits will not be disturbed where supported by evidence, although the same was strongly contradicted.</p> <p>Eminent Domain — Property Subject — Property Devoted to Public Use. The property of a public service corporation, already devoted to a public use, may be acquired by condemnation in the establishment of a waterway district, under 3 Rem. & Bal. Code, § 8172a, subd. “a” providing that private property and the property of private corporations may be condemned when necessary to make the improvements, and Id., subd. “d,” providing for the condemnation of all necessary and needed rights of way in the straightening or improving of the river.</p> <p>Boundaries — Navigable Streams. A deed according to recorded plats conveys the land only to the bank of the river, where the boundaries in the plat ran “to the right bank” of the river, and “thence up stream with the meanders” etc.</p> <p>Navigable Waters — Riparian Rights — -Diversion of Waters by State — -Eminent Domain — Compensation. Riparian owners have no rights in the bed of a navigable stream, beyond their boundaries, and no rights in the waters of the river as against the state or its agency; hence a riparian owner is not entitled to recover damages from the establishment of a waterway district by reason of the diversion of the water and being compelled to procure a supply of water elsewhere.</p> <p>Eminent Domain —■ Waterway Districts — Proceedings — Jury Trial — Benefits—Determination. Upon the assessment of benefits by a jury in a condemnation proceeding to establish a waterway district, in which there are thousands of party defendants, it is not error to permit the estimates of the witnesses to be taken by the jury to the jury room, under instructions that they were but aids to their recollection of the testimony and not to be considered as evidence.</p> <p>Same — Proceedings—Assessments—Benefits-— Separate Trials. 3 Rem. & Bal. Code, § 8166a et seq., providing for the establishment of waterway districts, does not authorize separate trials upon the question of the maximum benefits to the property in the district.</p> <p>Same — Assessment of Benefits — Railroad Property. The fact that a railroad right of way is at present being used exclusively for railroad purposes is no objection to its assessment for benefits from the establishment of a waterway district.</p> <p>Same — Assessment of Benefits — Determination. Under 3 Rem. & Bal. Code, § 8177-2, requiring the jury in condemnation proceedings to establish a waterway district, to find the maximum amount of benefits per acre or per lot, the jury must determine the maximum benefits to platted and unplatted property at the time of the trial; hence cannot make deductions for streets that might be platted in the future.</p>

, entered July 1, 1911, overruling objections of a property owner to an assessment for a local improvement, upon appeal from the city council.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 18, 1918, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered February 28, 1913, upon findings in favor of the plaintiff, in an action for a divorce.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered December 11, 1912, upon findings in favor of the plaintiffs, in an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for Clarke county, McM'aster, J., entered January 2, 1913, dismissing an action to foreclose a mechanics’ lien, upon granting a nonsuit.</p>

, entered March 12, 1913, upon findings in favor of the defendant, in an action to recover the value of goods lost by a common carrier.

On remittitur from the Supreme Court of the United States, commanding further proceedings, on appeals from judgment’s of the superior court for Pierce county, Chapman, J., entered April 8, and June 11, 1909, dismissing actions for damages for the original grading of a street.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered November 22, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a logger.</p>

<p>Carriers — Op Goods — Contract op Carriage — Agreement as to Time — Evidence—Question por Jury. In an action for damages for failure to move a scenery car on time, whether there was a promise to move scheduled trains on time, is a question for the jury, where the plaintiff’s manager testified that he informed the defendant’s agent of the necessity of moving the car on time for an evening performance, and rather than take chances on the scheduled train being late, preferred to hire a special train, and was informed that the connecting train was a local train, made up at P. and would not be late, whereupon he paid for moving the car by the scheduled train.</p> <p>Evidence — Construction op Contract — Experts—Conclusion op Witness. In an action for breach of contract of carriage of a baggage car of a theatrical company, whether the original contract of carriage of the advance agent was merged in a subsequent contract made by the traveling manager, is a conclusion to be drawn by the jury; and it is therefore error to allow a witness, assuming to speak as an expert as to the powers of theatrical agents, to give his conclusion that there would be such a merger.</p> <p>Appeal — Review—Harmless Error. The admission of objectionable evidence that should have been stricken will not be held prejudicial, where the record fails to show any motion to strike.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered March 12, 1913, sustaining objections to an assessment roll, on appeal from the city council.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered April 25, 1912, upon the verdict of a jury rendered in favor of the plaintiff for the sum of $4,500, in an action for personal injuries sustained by a laborer in street grading work.</p>

, entered February 11, 1913, upon findings in favor of the defendant, in an action on a promissory note, tried to the court.

<p>Taxation- — Personal Property — Liability — Distraint. Under Rem. & Bal. Code, § 9235, making personal property taxes a lien upon all real and personal property of the owner, and Id., § 9223, providing for distraint for personal property taxes, upon all goods and chattels belonging to the person charged, personal property taxes are made the debt of the person assessed, and distraint is not limited to the property assessed.</p> <p>Taxation — Personal Property — Connected With a “Farm”— Situs for Taxation. Under Rem. & Bal. Code, §9125, providing that when the owner of live stock connected with a farm does not reside thereon, the stock shall be assessed in the county where the farm is situated, the word “farm” is used in a generic, rather than a restricted sense, and includes a ranch of grazing lands used exclusively for the raising of sheep; thus recognizing the equity of the home county to have the tax.</p>

, entered November 18, 1912, upon sustaining a demurrer to the cross-complaint, dismissing an action to enforce liens for the construction of a dyke.

<p>Appeal from a judgment of the superior court for Pacific county, Rice, J., entered January 16, 1913, upon findings in favor of the plaintiff, in an action for a divorce.</p>

<p>Parent and Child — Custody—Welfare of Children. Where a divorced parent seeks to recover custody of children from persons holding under adoption proceedings, the dominant question is the moral, intellectual and material welfare of the children, and the wishes of the parent are subordinated thereto.</p>

<p>Taxation — Valuation—Rau.road Right of Way — Excessive Assessment — Evidence—Sufficiency. An assessment of a strip of land 100 feet wide and 21 miles long, acquired by a railroad company for a right of way, at an assessed valuation of $1,000 per acre within city limits, and $500 per acre outside the city, aggregating $137,980, is so excessive as to be constructively fraudulent, where it appears that the strip was without improvements and undistinguishable from adjacent lands, which in the city were valued at from $40 to $300 per acre, and outside the city, at from $5 to $165 per acre, which was the fair value; even if single ownership of the continuous strip enhanced its value; especially where the previous year the valuation was only one-fourth as much, and the state tax commission had placed a uniform'valuation on rights of way similarly situated of' $1,320 per mile; that a proper assessment would be $45,993; and no greater valuation should be permitted.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered December 13, 1912, dismissing an action by a tenant for injury to goods, on granting a non-suit.</p>

, entered March 25, 1913, upon the pleadings, granting defendants relief prayed for in an action to declare a forfeiture.

<p>Appeal by plaintiff from a judgment of the superior court for Clarice county, McMaster, J., entered March 5, 1913, upon findings in favor of the plaintiff, granting only part of the relief prayed for, in an action for a divorce and to declare a trust.</p>

<p>Corporations — Stock — Subscriptions — Payment in Property— Overvaluation — Liability to Creditors. Where an insolvent corporation conveyed all its assets to a clerk of one of its officers, who subscribed for all the stock of a reorganized company, transferring the assets to it in full payment of the stock, which she transferred proportionally to the stockholders of the old company, such stockholders are subscribers to the stock of the new company, and having paid but a nominal consideration for their stock, they are liable to creditors on their unpaid stock subscriptions, on the trust fund theory, requiring stock to be paid for in money or money’s worth.</p> <p>Banks and Banking — Representation—Officers—Adverse Interests — Notice. Where the president and cashier of a bank extended credit to, and permitted overdrafts by, an insolvent corporation in which they were interested as stockholders with full knowledge of its affairs, in an action on their unpaid stock subscriptions for the benefit of the bank as principal creditor, it cannot be claimed that the bank was estopped by the knowledge of its president and cashier, who were adversely interested and who had failed to give notice of conditions to any of the other trustees or officers of the bank.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered May 10, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for breach of contract,</p>

<p>Appeal from an order of the superior court for Whatcom county, Pemberton, J., entered February 20, 1913, refusing to vacate a judgment, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered April 10, 1913, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a pit man in steam shovel work.</p>

<p>Chattel Mobtgages — Falluee to Recokd — Validity—Subsequent Cbeditoes. Although. Rem. & Bal. Code, § 3660, provides that a chattel mortgage is void as against creditors unless recorded, an unrecorded chattel mortgage is valid as between the parties and creditors subsequent to its execution who acquired no specific lien upon the property up to the time when it was finally filed for record.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered March 8, 1913, upon findings in favor of the plaintiff, in an action for an accounting.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered January 9, 1913, dismissing consolidated actions to quiet title, after a trial on the merits to the court.</p>

, entered February 8, 1913, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to foreclose a chattel mortgage.

<p>Cross-appeals from a judgment of the superior court for Whitman county, McCroskey, J., entered February 28, 1913, upon the verdict of a jury rendered in favor of the defendants, in an- action on promissory notes.</p>

<p>Appeal — Preservation op Grounds — Waiver op Objections— Pleading. Objection that a counterclaim was not pleaded is not available on appeal, where the evidence was admitted without objection, since the issues became as broad as the evidence.</p> <p>Contracts — Construction. . An agreement that the defendant might draw against the proceeds of the sale of his stock, sold for him by the plaintiff, is not affected by the fact that part of the proceeds is represented by the purchaser’s promissory note, where plaintiff had pledged the note as collateral and claimed to own it.</p> <p>Corporations — Stock — Subscriptions —Payment in Property— Consideration. A sale to a mining corporation, by two of its trustees, of a bond upon a group of mining claims, in full consideration of their stock subscriptions, unanimously agreed to by the trustees, is valid as between the parties, where no rights of creditors are involved, the deal was in the open, and no one was wronged.</p> <p>Corporations — Stock — Sale — Validity — Estoppel. A corporation receiving and holding the proceeds of the sale of its stock cannot assert that the sale was not binding upon it.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Houser, J., entered January 30, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Jefferson county, Still, J., entered October 25, 1912, upon findings in favor of the plaintiff, in an action to foreclose a laborer’s lien.</p>

<p>Municipal Corporations — Improvements — Assessments — Benepits — Apportionment—Appeal—Review op Assessment. Where, in providing for an improvement to he paid for by special assessment upon property specially benefited, tbe council provided that any part of tbe costs not properly assessed against benefited property shall be paid for from tbe general fund, tbe superior court on appeal from tbe assessment, has power to apportion tbe costs between tbe city and property owners, and is not bound by tbe apportionment of tbe eminent domain commission.</p> <p>Same — Appeal—Review—Presumptions. Upon an appeal from a judgment modifying an assessment by eminent domain commissioners, any presumption would be in favor of tbe judgment.</p>

<p>Principal and Surety — Release op Surety — Overpayments— Prejudice. A compensated surety on a building contract is not prejudiced, and is therefore not released, by payments made during the progress of the work in excess of the amounts due the contractor, where they were necessary to protect the property from lien claims of laborers, the amounts of which were not questioned; nor by a small excess payment which was less than a credit afterward given for extra work.</p> <p>Same — Release op Surety — Taking Over Work. The payment of laborers on a building when the contractor was unable to pay them, is not a taking over of the work, where it was simply to protect the building from labor liens and the contractor was allowed to go on with the work;</p>

<p>Brokers — Authority—Fraud—Liability op Principal. A broker employed to conduct negotiations for the sale of real property upon a commission has apparent authority to represent what was appurtenant to the realty, and the principal is liable in damages for his fraudulent representations relating thereto.</p> <p>Vendor and Purchaser — -Remedies op Vendee — Fraud—Misrepresentations — Reliance. The purchaser of real property has the right to rely on representations, made in answer to a direct inquiry, as to what trade fixtures were appurtenant to and passed with the land, where there was nothing in their appearance that negatived the idea that they were part of the realty.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered January 8, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a mine.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered December 4, 1912, upon findings in favor of the defendant, in an action for money paid, tried to the court.</p>

<p>Process — Summons—By Publication — Mailing Copies — Affidavit of Publication. Upon a service by publication, a copy of the summons and complaint need not be mailed to the defendant’s last known place of residence, where the affidavit for publication states that affiant does not know the place of residence of the defendant, in view of Bern. & Bal. Code, § 228, providing that the affidavit for publication shall recite that a copy of the summons and complaint has been deposited in the post office, directed to the defendant at his place of residence, unless it is stated that such residence is not known.</p> <p>Same — Mailing Copies — Diligence to Locate Defendant. In an action to foreclose a mortgage, a service by publication is regular, without mailing a copy of the summons and complaint, where the defendant was not a resident of the county, diligent effort was made to locate him, both through the sheriff’s and city marshal’s offices, and publication was not commenced until shortly before the expiration of ninety days after filing the complaint, and the affidavit alleged that his residence was unknown.</p> <p>Mobtgages — Fobeclosube — Installments Notice Matubing Whole Debt. Where there was no tender of interest overdue, an option in a mortgage to declare the whole mortgage due for nonpayment of interest is sufficiently exercised by the commencement of foreclosure proceedings.</p>

<p>Appeal from a judgment of the superior court for Ferry county, Blake, J., entered February 19, 1913, upon a trial and conviction of grand larceny.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered April 26, 1913, upon a trial and conviction of forgery.</p>

, entered November 14, 1911, dismissing an action for breach of contract, notwithstanding the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits.

<p>False Imprisonment — Action—Defenses—Judgment of Conviction — Acquiescence In. An action for false imprisonment under a judgment and conviction for contempt cannot be maintained where plaintiff took no appeal from the judgment or sought to review it in any way, but confessed its validity by paying the fine imposed.</p>

, entered July 5, 1912, upon the verdict of a jury rendered in favor of the petitioner, awarding damages in eminent domain proceedings.

, entered March 29, 1913, in an action on contract, in favor of the defendants upon a counterclaim, upon withdrawing the case from the jury, after a trial on the merits.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered February 21, 1912, upon the verdict of a jury rendered in favor of the defendant, in an action on contract.</p>

, entered November 16, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries caused by blasting in excavation work in a street.

<p>Municipal Corporations — Improvements — Proceedings — Resolutions — Sufficiency. A resolution for a sewer improvement, stating an intention to improve a certain portion of a designated street by tbe construction of a trunk sewer outlet at an estimated specified cost, that the cost is to be assessed against tbe property which can be conveniently drained into tbe sewer and included in an assessment district thereafter to be established, and tbe time and place for making protests, substantially complies with a charter provision requiring tbe resolution to state tbe nature of tbe improvement, tbe estimated costs, tbe portion of tbe cost to be borne by benefited property, and tbe time and place for presenting protests.</p> <p>Same — Resolution—Objections—Jurisdiction. Where an opportunity is given to present objections to an assessment roll, tbe failure of tbe initiatory resolution to meet all tbe requirements of tbe law, if tbe same might have been dispensed with by tbe legislature, does not defeat tbe jurisdiction of tbe council to levy tbe assessment.</p> <p>Same — Reassessment — Bar — Judgment Avoiding Original Assessment. A judgment declaring an assessment roll void, is not res judicata of tbe right to make a reassessment, so as to bar a reassessment, which is expressly authorized by 3 Rem. & Bal. Code, § 7892-21.</p> <p>Same — Assessment—Rejection — Effect — Power to Reassess. Tbe making of a reassessment roll, which was rejected by resolution and a new roll directed, does not exhaust tbe power of tbe council to proceed under tbe reassessment ordinance; tbe power not being exhausted until a roll bad been prepared and confirmed or tbe ordinance repealed.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered November 8, 1912, dismissing an action for specific performance, after a trial on the merits to the court.</p>

<p>Damages — Contract—Breach—Stipulated Damages or Penalty. An agreement for stipulated damages for breach of a contract cannot be sustained, except as a penalty authorizing recovery only of pecuniary damages actually sustained, where it provided that $60 per acre was to be paid plaintiff for each acre of a hundred acre tract which the plaintiff failed, (1) to plant to apple trees in the spring of 1912 as early as the weather would permit, (2) to plant to a cover crop between the rows, and (3) to care for the trees after planting; since the same sum was to fall due for a minor or partial default as for a total default, and also on default in any one of the three particulars, all of which were of different degrees of importance, and could not be the proper subject for stipulated damages in the same amount, making the damages stipulated for unreasonable in relation to the gravity of the default for which they were to compensate.</p> <p>Contracts — Performance or Breach — Default—Waiver. A provision for stipulated damages in case of a default in a contract to plant a tract of land to apple trees as early in the spring of 1912 as the weather will permit, and to plant a cover crop between the rows at the same time, is waived, where the plaintiff, after commencing suit on the default May 13, at which time planting had not commenced, wrote a letter to defendant on May 20th, knowing that work was in progress (planting being finished June 8), that it would be satisfactory if the cover crop were planted by September 1st; since an offer and acceptance of part performance prevents recovery of liquidated damages.</p> <p>Contracts — Breach—Actions — Damages — Penalty — Offer of Proof — Sufficiency. In an action to recover on a penalty for a breach of contract to plant one hundred acres of land to apple trees in the spring of 1912 as early as the weather will permit, in which it appeared that the land was covered with stumps and brush when the contract was made Nov. 11, 1911, and little of the work of clearing and plowing could he done in the winter, and that the planting was completed June 8th, an offer to prove by an expert that the planting season was usually from April 1st to the middle or last of May, and that trees planted later would be retarded in bearing for one year, is insufficient as an offer to prove pecuniary damages; since it did not tend to show a breach of the contract, which was substantially performed, and was not followed by offer of proof of the amount of the pecuniary damages sustained.</p>

, entered April 30, 1913, in favor of the defendant, after a hearing before the court upon an agreed statement of facts, in an action on contracts.

<p>Submission op Controversy — Agreed Case — Evidence—Admissibility. Upon the submission of an agreed case, under Rem. & Bal. Code, § 378, providing for submission of controversies without action by an agreed case containing the facts, it is error to receive evidence over the objection of the adverse party; since no facts can be considered save as agreed upon in the signed and verified submission.</p> <p>Animals — Contracts—Construction—Herding Sheep — Division op Propits — Computation. Under a contract for the herding of sheep furnished by the first parties, who were to advance all money for labor, supplies, and expenses of running the sheep and also guarantee that one-half of the net profits should equal $50 as wages to be paid the party of the second part, who was to perform all the labor, employ skilled herders and furnish the first parties with an itemized account of the expense of maintaining the sheep from month to month, a stipulation to the effect that, in consideration of the guarantee of $50 a month as wages, if, after all the expenses of running the sheep are paid, one-half of the net profits exceeds the $50 per month, the second party (the herder) will divide said excess equally with the parties of the first part, requires that the herder’s expenses in running the sheep, as well as expenses paid by the first parties, be charged against the gross receipts, as though it were a partnership contract; and after first paying the wages of $50 per month from one-half the net profits, the balance of such half was to be divided equally.</p> <p>Submission op Controversy — Hearing—Judgment—Vacation. It "is not error to set aside a judgment on an agreed case, where it had been entered without any hearing.</p>

<p>Animals — Running at Large — County Commissioners — Hearings —Reconsideration—Proceedings—Finality. Under 3 Rem. & Bal. Code, § 3172-1 et seq., providing that the board of county commissioners may, after a hearing, designate, by an order made and published or posted for four consecutive weeks, the boundaries of a district in which it shall be unlawful to permit live stock to run at large, and making it a misdemeanor to violate the order after it has been published or posted, as required in Id., § 3172-3, the commissioners’ power is not fully exercised by the granting of an application upon a hearing and the record entry of such action on the minutes; hence, until the order is entered and published, the matter was in a determinative stage, and the commissioners had power to give notice of a reconsideration of the application.</p>

, entered February 8, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a blast.

<p>Fraud — Misrepresentations—Location of Property — Evidence— Sufficiency. A verdict for damages for fraud is sustained where it appears that plaintiff and defendant were friends, and plaintiff was induced to trade store fixtures and goods worth $300 for defendant’s lot, on defendant’s false representations that the lot was located close to the Tacoma tide flats, and worth $300, when in fact it was two miles from that location and of no value and plaintiff was unable to make any investigation except to inquire the value of lots in the location described.</p>

<p>Husband and Wife — Wife’s Separate Property — Advances by Husband — Community Property. The status of the wife’s separate real property is not affected by the fact that the husband put some of his money into it for repairs and upkeep, except as subject to a possible equity therefor, which should be disregarded when the amount was small, and was advanced without any understanding that it carried an interest in the property.</p> <p>Same — Wife’s Separate Property — Trade—Rights of Husband. The fact that the wife’s separate real estate was traded for property and her husband named as a grantee in the deed, would not give him a community interest in the property, even if he furnished a small amount of property in the trade, where it was apparent that he did not regard the property as his own.</p> <p>Same — Community Property — Evidence—Sufficiency. The evidence is insufficient to show that property, the deed to which was taken in the name of a husband and wife, was their community property, where it is undisputed that the greater part of the consideration was a trade for separate real estate belonging to the wife, the husband furnishing property of very lit'tle value, without any agreement for an interest, and there was nothing to show that the wife, in directing the deed to be made to herself and husband, intended to give up a half interest in the property or that the husband should assert a greater interest than that represented by his advances.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered January 3, 1913, upon findings in favor of the plaintiffs, in an action for equitable relief. Vacated and remanded for further evidence.</p>

, entered May 3, 1913, upon the verdict of a jury rendered in favor of the defendants, in an action for personal injuries sustained in a collision with an automobile.

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered June 3,1913, setting aside a homestead for minor heirs, after a hearing upon stipulated facts.</p>

, entered January 14, 1913, vacating an order of the public service commission ordering side track facilities, after a hearing on the merits.

<p>Contempt — Evidence—Sufficiency. A conviction for contempt of court, in the use of language deemed contemptuous in written exceptions filed, is not sustained, where the language used was invited hy the court in unnecessary criticism of accused’s conduct outside the duty of the court, and both were to blame.</p>

<p>Appeal from a judgment of the superior court for Klickitat county, McKenney, J., entered December 30, 1912, upon findings in favor of the defendant, in an action- on contract tried to the court.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Holcomb, J., entered January 17, 1913, discharging a garnishee, after a hearing before the court.</p>

, entered May 16, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action upon implied contract.

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered April 9, 1913, upon findings in favor of the plaintiff, in an action on contract tried to the court.</p>

, entered February 14, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for wrongful death.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered January 13, 1913, confirming an assessment roll, after a hearing on the merits.</p>

<p>Officers —Recall — Statutes — Retroactive Laws — Remedies. Since the amendment to the constitution of 1912, art. 1, §§ 33 and 34, and Laws 1913, p. 454 (3 Rem. & Bal. Code, §4940-1 et seq.), enacted in pursuance thereof, relating to the recall of elective officers, expressly refers to officers of cities of the first class and are general laws on the subject, they supersede the recall provisions under the act of 1911.</p> <p>Statutes — Titles and Subjects — Scope. The title to the act of 1911, Laws 1911, p. 504, submitting a constitutional amendment for the recall of elective officers, is not defective or misleading because broader than the act, in that the' title refers to all public officers and to the election of their successors; while the proposed amendment in the body of the act excepts judges and makes no provision for the election of successors; the title being sufficient if it indicates to a person of ordinary intelligence the substance and scope of the act.</p> <p>Constitutional Law — Amendments—Proposal—Passage — Requisites — “Entry.” Const., art. 23, § 1, requiring that amendments to the constitution proposed by the legislature shall be agreed to by two-thirds of the members elected to each of the two houses and “entered on their journals” does not require the copying of the entire proposed amendment in the journals of the Senate and House, but is complied with by a memorandum entry by reference to the proposal, using the language of the title of the act.</p>

, entered May 23, 1913, upon findings in favor of the Empire Realty Company, in consolidated actions to recover a broker’s commission, after a trial to the court.

, entered October 17, 1913, dismissing a proceeding to condemn a right of way for a logging road, upon sustaining a demurrer to the petition.

<p>Certiorari to review a judgment of the superior court for King county, Mitchell, J., entered February 24, 1913, adjudging a public use and ordering an assessment of damages, in condemnation proceedings.</p>

<p>Divorce — Alimony—Enforcement—Contempt—Evidence—Admissibility. In contempt proceedings to enforce the payment of alimony, it is not error to exclude evidence as to property conveyed to the wife prior to the entry of the decree of divorce, since that was presumably considered at that time.</p> <p>Appeal — Record—Findings—Waiver. In contempt proceedings to enforce alimony, the failure to make findings cannot be assigned as error, in the absence of request therefor or any objection or exceptions to the failure to make them.</p> <p>Divorce — Alimony — Contempt — Accruing Payments. In contempt proceedings to enforce alimony, objection cannot be made to the judgment in that it punishes for violation of distinct orders and the failure to pay money not due when the order of arrest was made, where the accumulations all relate to one modified order in aid of which the arrest was made, and defendant had full notice of the due and accruing payments, and answered to the merits without objection; the jurisdiction of the court being a continuing one.</p> <p>Same — Alimony—Contempt—-Evidence—Sufficiency—Burden of Proof. A conviction for contempt in failing to pay $986 support money, the amount of accumulated payments at $20 per month, awarded in a decree of divorce, is sustained where it appears that the defendant had never made any payments, that he was an able-bodied man, earning $3.50 a day at the time of the hearing, had remarried, and had received $500 from his father at one time during the period, and his credit was such that he had been able to run in debt over $1,000; the burden of proof being upon him- to show his inability to pay.</p>

<p>Landlord and Tenant — Unaccepted Lease — Tenancy From Month to Month — Evidence—Sufficiency. In an action of forcible entry and detainer, findings to the effect that the premises were not held under a written lease, and that the lessee was a tenant from month to month, are sustained where it appears that a former written lease had been made and abrogated by mutual consent before the tenant took possession, that the landlord executed a second lease, containing conditions, which to be binding, required the tenant’s formal consent, but was not executed or otherwise consented to by him and was never delivered.</p> <p>Same — Tenancy From Month to Month — Notice to Quit. A tenant from month to month cannot be ousted by an action of forcible entry and detainer, under Rem. & Bal. Code, § 812, unless notice to quit be served at least twenty days prior to the end of the period.</p>

<p>Appeal — Decisions Appealable — Pinal Judgments. A memorandum decision of the trial judge is a mere direction to counsel in the preparation of formal orders, and an appeal is premature where it does not appear that any formal judgment or decree was entered, or that the clerk made any minute of the decision.</p>

Application filed in the supreme court October 18,1913, for a writ of mandate to the superior court for King county, Humphries, J., to compel the transfer of a cause to another judge.

, entered October 11, 1912, affirming an order of the public service commission in favor of the plaintiff, compelling the defendant to equalize its class rates between distribution points.

<p>Application filed in the supreme court January 21, 1914, for a writ of mandamus to compel the secretary of state to act upon a proposed initiative measure.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered January 28, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a pedestrian struck by the overhang of a street car rounding a curve.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Myers, J., entered January 11, 1918, upon findings in favor of the plaintiff, in an action of ejectment, tried to the court.</p>

<p>Divorce — Vacation of Decree — Collusive Suit — Petition for Vacation — Sufficiency. A decree of divorce will not be vacated at the suit of the successful plaintiff, for fraud in obtaining it, and her petition is demurrable for want of sufficient facts, where the gist of the-petition was that her husband represented to her that the marriage embarrassed him financially and that he would get his business-affairs adjusted and remarry her within six months, and otherwise he would be compelled to leave the state and he would give her no financial assistance, it being alleged that she was finally persuaded to bring the action, consenting to go before the court and tell the-exact situation, which it appears she did not do, the inference from the allegations being that she testified falsely or suppressed material facts in the trial of the divorce case, resulting in findings sustaining-the decree of divorce; since the petition shows nothing more than a. collusive arrangement to obtain a divorce.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered May 10, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a painter in the fall of a scaffold.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Back, J., entered May 7, 1913, upon findings in favor of the plaintiff, in a contest to determine the right to condemn property for a public use, after a hearing before the court.</p>

<p>Landlord and Tenant — Defective Premises — Promise to Repair —Liability of Lessor. Where the landlord has made a promise to repair known defects in the premises, the tenant is absolved from the assumption of risks therefrom while remaining for a reasonable time awaiting performance of the promise, if not guilty of contributory negligence.</p>

<p>Municipal Corporations — Improvements—Change of Grade — Liability — Evidence—Sufficiency. A city establishes a grade, which it cannot thereafter change without paying for the consequential damages to abutting property, where by formal resolution and contract, it improved the street by clearing and grading it to its full width and building a plank road with sidewalks on both sides; the presumption being that a grade was adopted, a formal ordinance establishing a grade not being necessary.</p> <p>Same — Improvements — Permanency. A plank roadway sixteen feet wide must be presumed to be a permanent and not a temporary improvement, where the work was done on the special assessment plan and the cost charged to property in the district, and where the intent to grade the street was clearly manifest.</p> <p>Same — Improvements—Liability for Change of Grade — Remedies of Owner — Injunction — Damages. Where property owners permitted a city to prosecute street improvement work until it was nearly completed, they cannot enjoin the work on the ground that they had not been paid damages by reason of a change of grade; their only remedy being recovery of the damages at law.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Pendergast, J., entered January 3, 1913, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for equitable relief.</p>

<p>Usury — Actions—Evidence—Sufficiency—Bonus or Profits on Resale. Under tbe rule that the burden of proving the defense of usury Is upon the party alleging it and that it is necessary to establish an unlawful intent, the defense of usury, in an action to foreclose a mortgage for $25,000, is not established where it appears that the defendant was desirous of purchasing certain timber at $105,000, the owner’s selling price, but was unable to raise any money, when it interested the plaintiff’s president in the matter, who secured the loan of $25,000 from the plaintiff to enable the defendant to handle the matter, under an agreement that he would purchase the timber and resell it to the defendant at an advance of $20,000, represented by four notes for $5,000 each, which were to be paid without interest as the timber was cut, and which sum was conceded to him as his profit in the transaction, although, in consummating the deal, the deed to the timber was made direct to the defendants in order that deferred payments on the purchase price would not appear as liabilities of the plaintiff or its president; the testimony as to the final consummation of the deal indicating that the notes were intended as a profit on the resale and not as a commission or bonus for securing the $25,000 loan.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered May 10, 1913, dismissing a habeas corpus proceeding, upon sustaining a demurrer to the petition.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Yakey, J., entered June 24, 1912, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

, entered April 25, 1913, in favor of the relators, in mandamus proceedings to compel the levy of a supplemental local improvement assessment.

Application filed in the supreme court September 30, 1913, for a writ of prohibition to the superior court for King county, Humphries, J., to compel the transfer of a cause to another judge.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered October 28, 1912, upon findings in favor of the defendants, in an action on unpaid stock subscriptions.</p>