Volume 79 — Washington Reports

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered March 29, 1913, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Appeal — Dismissal—Insufficiency of Bond — Judgment — Affirmance. Upon dismissal of the appeal for insufficiency of the appeal hond, the supreme court has no power to affirm the judgment and' enter judgment against the sureties on the bond.</p> <p>Costs — On Appeal — Dismissal. On dismissal of an appeal for insufficiency of the bond, costs will be awarded against the appellant but not against the sureties on the bond.</p>

Appeal- from a judgment of the superior court for King county, Dykeman, J., entered February 19, 1913, dismissing an action to foreclose a mortgage, after a trial on the merits to the court.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 5, 1913, dismissing an action for money paid, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 11, 1913, upon the verdict of a jury, rendered in favor of the plaintiff, in an action in tort.</p>

<p>Contracts — Construction—Unauthorized Sale — Ratification— Rights or Parties. "Where defendant, the owner of an interest in timber licenses, sold half of his rights to plaintiff; and claiming that the sale was invalid, made a contract with one C, without whose financial assistance the title' would have been lost, assuming to sell his whole interest to C., in consideration of a certain cash payment and monthly installments, C. to advance payments to protect the title and to share with defendant in the net profits, the plaintiff cannot ratify and adopt the contract with C. as to his half interest and claim the benefits of the contract without assuming his share of the burdens, viz: the loss of a proportionate part of the net profits.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Houser, J., entered May 26, 1913, upon findings favorable to the city, confirming an assessment roll as modified, upon appeal from the city council.</p>

, entered April 30, 1913, upon the verdict of a jury rendered in favor of the defendant, by direction of the court, in an action for personal injuries sustained on a highway.

<p>Exchange of Property — Fraud—Evidence—Sufficiency. A rescission of a trade of farm property for an apartment house and furniture cannot be had for misrepresentations as to the ownership of two pianos, where the ownership was disclosed during the pendency of the negotiations, and they were not included in the papers executed, to which no serious objection was made at the time.</p> <p>Same. Fraud, warranting the rescission of a trade of farm property for an apartment house, is not established by clear and convincing evidence as to misrepresentations as to the income from the apartment house, or as to the number of rooms that were vacant, where the defendant’s testimony sustains the verity of lists furnished' showing the income, and the evidence as to whether there were five or seven vacancies was in dispute, and some confusion arose by reason of changes pending the negotiations.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Yakey, J., entered January 2, 1913, upon findings in favor of the plaintiff, in an action to quiet title.</p>

<p>Reformation of Instruments — Description—Mutual Mistake— Evidence — Sufficiency. The description in a deed will be reformed where the parties had with a tape measured off a tract of 13 acres from a forty, the corner established could not be definitely located, the notary, in drawing the deed by metes and bounds, had determined a line “by guess,” and the evidence is clear and convincing that the parties had made a mutual mistake in the description contained in the deed.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered February 8, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered June 9, 1913, upon the verdict of a jury rendered in favor of the defendant, in an action on a promissory note.

<p>Appeal from an order of the superior court for Kitsap county, French, J., entered December 6, 1913, denying an application to set aside the forfeiture of bail.</p>

, entered April 8, 1913, upon findings in favor of the plaintiff, in an action for divorce, after a trial on the merits.

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered March 8, 1913, upon findings in favor of the defendant, in an action for conversion.</p>

<p>Street Railways — Injuries to Persons on Tracks — Contributory Negmgenoe — Evidence—Sufficiency. The driver of a team, struck by a rapidly approaching street ear, in the nighttime, is guilty of contributory negligence, as a matter of law, where he testified that he drove upon the street car tracks to allow an automobile to pass, and stayed there for several blocks because it was easy going, that he saw the car when it was two blocks away, and the only obstacle to his leaving the track was that one of the rails was slightly elevated, and a hind wheel of his empty wagon skidded thereon, and that he did not whip up, but merely clucked to his horses, which did not go off a walk.</p> <p>Same — Proximate Cause — Last Clear Chance. The proximate cause of the accident, where a street car struck the team of plaintiff, was the plaintiff’s contributory negligence in failing to leave the track after seeing the approaching car, which continued up to the time of the accident, and the doctrine of last clear chance has no application, where there was no evidence that he was actually seen by the motorman.</p>

<p>Appeal from an order of the superior court for King county, Albertson, J., entered October 28, 1913, requiring the defendants to make an election between their defenses.</p>

, entered January 18, 1912, dismissing an action for equitable relief as to a fishing location, after a trial to the court.

, entered January 9, 1913, upon the verdict of a juiy rendered in favor of the defendants, in an action on a promissory note, tried to the court.

<p>Indians — Indian Country — Offenses — Jurisdiction. The Federal courts have exclusive jurisdiction of the offense of larceny committed on an Indian reservation by one Indian against another, both being allottees without having received any patent from the United States, and both under the charge of a United States Indian agent, under U. S. Rev. St., § 2145, providing that the general laws of the United States as to the punishment of crimes committed within the sole and exclusive jurisdiction of the United States shall extend to the Indian country, and 23 Stat., 385, providing that certain offenses, including larceny, committed' by an Indian against another within the boundaries of any state and within the limits of any Indian reservation shall be subject to the same laws, tried in the same court and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.</p>

<p>Boundaries- — Courses and Distances — Monuments. In the event of a conflict, courses and' distances must yield to original stakes and monuments located on the ground.</p> <p>Vendor and Purchaser — Bona Fide Purchaser — Record —• Constructive Notice. A recorded deed is constructive notice to subsequent purchasers only of the land described, and where there was a mistake in the calls and distances of the description, and also in the township, it is not notice to subsequent purchasers.</p> <p>Same — Bona Fide Purchaser — Notice—Evidence. Where plaintiffs had1 purchased tracts of land by an erroneous description, marking the initial point by a gas pipe, and used the tracts to convey water from springs for a water system, defendants, subsequently purchasing a conflicting tract, are tona fide purchasers for value, where, by reason of the error in the description of the plaintiff’s deed, defendants had no constructive notice of a conflict, the gas pipe had disappeared at the time of their purchase, the water pipes were buried' and not visible, no part of the stream or springs were upon their land, and they had no notice of plaintiff’s water system, and nothing of a physical character existed on defendants’ land sufficient to give them notice of plaintiff’s claim of title.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered May 28, 1913, dismissing an action for personal injuries sustained by a boy struck by an automobile, notwithstanding the verdict of a jury rendered in favor of the plaintiff.</p>

, entered December 4, 1912, upon the verdict of a jury rendered in favor of the defendants, in an action upon a promissory note.

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered March 28, 1913, upon findings in favor of the plaintiff, in an action for conversion, tried to the court.</p>

<p>Appeal — Preservation oe Grounds — Exceptions to Findings— Review. Failure to except to findings of fact does not entitle respondent to a dismissal of the appeal, since there remains for review the question whether the findings support the decree.</p> <p>Trusts — Express Trust In Land — Parol Prooe — Admissibility. Where a conveyance was made to a son, who was acting as administrator, for the purpose of disposing of the lands to pay the debts of the estate, under his agreement to reeonvey all that remained after payment of the debts and final settlement, there was an express trust, and not a trust ex maleficio, and therefore .it could1 not be established by parol evidence.</p>

<p>Sales — Collateral Agreement — Conditions—Refusal to Warrant. Where, on October 27, a seed company orally agreed to furnish Alaska early pea seed, and on November 8, the parties came together and entered into written contract for the sale of 7,150 lbs. of peas, containing the terms of sale, but without mentioning the kind or quality, the writing must be taken as the contract of sale; especially where, in each sack was placed a card, stating that the seed1 company gives no warranty express or implied as to description or quality, and requiring a return of the seed if not accepted on that condition, and it appears that it was the general custom in the seed trade to make all sales subject to such condition; hence the sale was made without warranty or condition that the seed was true to name, and none could be inferred.</p>

<p>Fraudulent Conveyances — Sales in Bulk — Statutes—Excuse for Noncompliance — Payment. Under the sales-in-bulk act, Rem. & Bal. Code, § 5295, providing that the failure to take the affidavit as to creditors and indebtedness of the vendor may be cured by applying the purchase money in payment of the claims of creditors, share and share alike, a creditor who has received his pro rata share of the purchase money cannot complain of the failure to comply with the act in the first instance.</p> <p>Garnishment — Liability of Garnishee — Promise to Plaintiff. In garnishment proceedings to enforce the statutory liability of the purchaser of a stock of goods in bulk to the creditors, for failure to comply with the sales-in-bulk act, the purchaser cannot be held on the theory that he had, since the sale, assumed or guaranteed payment of the indebtedness of the old firm.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered March 4, 1913, in favor of the plaintiff, upon denying an application for a change of venue.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered May IS, 1913, upon findings in favor of the plaintiff, in an action on contract.</p>

<p>Garnishment — Trial—Burden of Proof. Where a garnishee admitted that he at one time held a note belonging to the judgment debtor, which he had since transferred, it is proper to place the burden upon him of explaining his possession.</p> <p>Appeal — Review—Harmless Error. In an action tried to the court, error in the admission of irrelevant evidence is harmless, the judgment being sustained by other evidence.</p> <p>Garnishment — Judgment—Persons Concluded — Interested Witness. A garnishment being a proceeding in rem, a witness to whom the property in question had been transferred who might have intervened in the action, is bound by the judgment; hence it was not error to fail to make her a party.</p> <p>Appeal — Review-—Objections Not Made Below. In garnishment proceedings on behalf of defendants against the plaintiff in the original action, an assignment of error that the writ was directed against the property of the “defendants” is technical, where no objection was ma'de at the trial, and the issue was tried out and the plaintiff was a witness and had opportunity to preserve his rights.</p>

, entered April 14, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian, struck by a street car at a crossing.

. Appeal from a judgment of the superior court for Kitsap county, French, J., entered May 3, .1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for breach of contract.

Application filed in the supreme court March 3, 1914, for a writ of habeas corpus, to release prisoners under arrest for murder.

<p>Constitutional Law — Loan of Credit — County Aid to Municipal Corporation. The issuance of county bonds for part of the cost of an interstate bridge, to be built jointly with a county in the adjoining state, is not a giving or loaning of money or credit in aid of “any individual, association, company or corporation” in violation of Const., art. 8, § 7; since the provision does not apply to a county or a corporation whose functions are wholly public.</p> <p>Same- — Loan of Credit- — Joint Construction of Interstate Bridge. The issuance of county bonds for part of the cost of an interstate bridge, to be built jointly with a county in the adjoining state, which was to supply the balance of the cost, is not a giving or loaning of money or credit, in violation of Const., art. 8, § 7; since the county retains an interest in the bridge and no more aids the foreign county than it receives aid therefrom.</p> <p>Counties — Bonds—Submission to Electors — Notice of Election —Sufficiency. Requirements for notice of a special county bond election are directory only, where the statute does not provide that the election shall be void if not strictly followed; and the publication of notice of election for only 25 or 26 days, where the act requires publication for four weeks next preceding the date of election, does not invalidate the election, where the subject was widely discussed, numerous public meetings were held and the matter given great notoriety, and the voters fully informed, and a heavy vote cast, and the result could not have been different if legal notice had been given.</p> <p>Same — Bonds — Submission to Electors — Ballots. A special county bond' election is not invalidated by printing on the ballot explanatory matter in addition to the matter required by statute.</p> <p>Same — Bonds—Rate of Interest. A statute authorizing the issuance of county bonds bearing interest at a rate not exceeding six per cent per annum, payable semiannually, is sufficiently complied with by the issuance of bonds bearing interest at the rate of six per cent payable annually.</p> <p>Bridges — Construction—Authority to Make Contract. The provisions of Rem. & Bal. Code, § 5686-1 et seq., which gives the state the management and control, through its highway board, of the construction of interstate bridges, where the state itself joins in the construction of the bridge, are not intended to apply to an interstate bridge constructed by a county of this state jointly with a county of an adjoining state.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Smith, J., entered June 17, 1912, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Contracts — Modification—Consideration. The substitution of a new contract for an old one is a sufficient consideration for the new contract.</p> <p>Contracts — Construction—Actions—Pleading — Complaint. In an action upon an agreement to refund the purchase price of soldier’s additional homestead scrip, in case the department of the interior refuses to recognize or returns the scrip as invalid, the complaint sufficiently alleges the contingency fixing liability to make the refund, where it alleges that an application to file the scrip was rejected and the secretary of the interior “finally rejected the scrip.”</p>

<p>Insurance — Mutual Benefit Insurance — Change of Contract— Amendments — Vested Rights. A member of a fraternal beneficiary association has no vested right that precludes the association from amending the suicide clause by extending the limited liability to five years after issuance of the certificate, in place of the two years originally provided, where his application and1 certificate and the laws of the association provided that he abide by all the laws now in force or that may be hereafter enacted; since the right to amend was expressly reserved and assented to:</p>

<p>Principal and Agent — Powers or Agent — Limitation—Notice— Power of Attorney. Under a general power of attorney, in which there is no ambiguity or uncertainty, one dealing with the agent is not bound to look beyond the instrument itself or make an inquiry as to secret limitations upon the agent’s authority.</p> <p>Appeal — Review—Verdict. The verdict of a jury supported by sufficient evidence, will not be disturbed on appeal.</p> <p>Appeal — Review—Harmless Error. Where the only question is whether defendant’s agent contracted as such, it is not prejudicial error to fail to submit to the jury the question of agency.</p> <p>New Trial — Extent of Relief. Where special verdicts are returned showing the amount allowed on each of several causes of action, the court, upon motion for a new trial as to the whole cause, has power to deny a new trial as to one cause and grant it as to the others, under Rem. & Bal. Code, § 399, authorizing the vacation of a verdict and the granting of a new trial.</p> <p>Judgment — Notwithstanding Verdict — New Trial — Extent oe Relief. Upon motion for a new trial for insufficiency of the evidence to sustain special verdicts on each of several causes of action, the power of the court is limited to denying or granting the motion, in whole or in part, and it is error to enter judgment dismissing several of the causes, notwithstanding the verdicts.</p>

<p>Appeal from a judgment of the superior court for Walla Wall county, Mills, J., entered March 26, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

, entered June 25, 1913, in favor of the plaintiff, foreclosing a real estate mortgage, upon sustaining demurrers to affirmative defenses.

<p>Appeal — Decisions Reviewable — Cessation op Controversy. The appeal will be dismissed where the controversy has ceased before the hearing on appeal.</p>

<p>Taxation — Personal Property — Situs—Statutes. Under Rem. & Bal. Code, § 9236, providing for the assessment for taxation of any stock of goods brought into the state after March 1st, “to be sold in a place of business temporarily occupied for their sale,” without intent to engage in permanent trade at such place, a shipment of buggies brought into the state for sale by sales agents traveling over the country, and deposited and1 stored in a warehouse, is assessable for taxation, where deliveries were made from the warehouse, although no orders were taken there; since a delivery is necessary to a completed sale.</p> <p>Same — Statutes — Construction. Statutes for assessment of property for taxation are to be liberally construed, that property justly assessable shall not escape through technicalities.</p> <p>Same — Exemptions—Assessment Elsewhere. Property brought into the state after March 1st, and otherwise taxable, is not exempt because it had been assessed elsewhere for the same year.</p> <p>Same — Personal Property— Statutes— Construction — “Immediately.” A finding that a stock of goods brought into the state after March 1st, was assessed “immediately upon its arrival at R.” does not necessarily mean upon the “instant” and while still in transit; but may mean “proximately” or “directly,” and hence after it was unloaded and stored.</p> <p>Commerce — Interstate Commerce — Interference — Taxation. Where a stock of goods is brought into the state and stored in advanee of -sales, or where it reached its destination for final disposal although not taken from the cars, the taking and1 filling of orders therefrom is local and npt interstate commerce, and the imposition of taxes on the property is not an interference with interstate commerce.</p>

<p>Municipal Corporations — Public Buildings — Maintenance—Degree or Care — Negligence. Under tbe rule that a city owes only reasonable care in keeping buildings in repair, it is not negligence for a city to permit tbe use of a floor in a municipal dock after tbe center of one of tbe boards became worn down a quarter of an inch below tbe common level.</p> <p>Same — Defects—Notice. A city is not liable for injuries sustained by one wbo slipped and fell upon tbe floor of a municipal dock, one board of wbicb had worn faster than tbe others, until it was slightly grooved! and about a quarter of an inch below tbe corn-men level, where there was no evidence that the city had notice of the defect or that, of numerous persons passing over the floor daily, any one had previously slipped or fallen thereon.</p>

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered May 27, 1912, upon a trial and conviction of conspiracy.</p>

, entered July 1, 1913, upon findings in favor of the defendants, in an action for an accounting and equitable relief, tried to the court.

<p>Appeal by defendants from a judgment of the superior court for Spokane county, Huneke, J., entered May 6, 1913, upon findings in favor of the plaintiff in an action to quiet title, and from a judgment awarding damages in condemnation proceedings, after a trial of the consolidated actions to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered September 4, 1913, dismissing an action for breach of contract, after a trial on the merits to the court.</p>

<p>Criminal Law- — Trial—Instructions—Degrees of- Offense — Assault. Where, upon a trial for first degree assault, all the evidence tended to show either a first or second degree assault, or none at all, the defendant is not entitled to have the jury instructed on the subject of third degree assault.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered December 2, 1913, dismissing an action for a writ of mandamus, upon a hearing before the court.</p>

, entered April 7, 1913, dismissing an acton to subject property to a judgment, after a trial on the merits to the court.

<p>Appéal from a judgment of the superior court for King county, Gilliam, J., entered May 10, 1913, upon a trial and conviction of attempted sodomy.</p>

<p>Appeal from a judgment of the superior court for Che-. halis county, Irwin, J., entered June 16, 1912, upon the ■ verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a sawmill.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Yakey, J., entered December 3, 1912, 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 Spokane county, Sullivan, J., entered April 8, 1913, denying further allowances to a receiver, after a hearing before the court.</p>

, entered January 8, 1913, upon findings in favor of the plaintiffs, in an action to foreclose a chattel mortgage, tried to the court.

Application filed in the supreme court December 2, 1913, for a writ of mandamus to the state superintendent of public instruction.

<p>Application filed in the supreme court December 22, 1913, for a writ of mandamus to the state insurance commissioner.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered December 80, 1912, upon findings in favor of the defendants, in an action to quiet title.</p>

<p>Municipal Corporations — Claims — Presentation — Pleadings— Construction. In. an action against a city upon a claim filed by another on behalf of the plaintiff, an answer admitting that the claim attached to the complaint was filed in the office of the city clerk and rejected, d'oes not admit that the plaintiff was physically or mentally unable to present her claim, or that it was legally presented.</p> <p>Same — Claims—Excuses for Failure to Present. Where a person was able to present a claim against a city during the first twenty-nine days following the injury, the fact that she was confined to her home and unable to attend to business on the last day does not excuse her failure to file the claim in time, or authorize another to file and verify a claim on her behalf on the ground that she was “physically or mentally unable” to present the claim within thirty days, as- provided' in the city charter.</p>

<p>Municipal Corporations — Contracts—Call for Bids — Construction. A call for bids for furnishing and delivering to a city two combination service automobile hook and ladder and chemical trucks and one seventy-five foot aerial truck, standing alone, warrants the construction that it requires bid's on all three pieces, so that bids on only two pieces could be rejected.</p> <p>Same — Contracts—Injunction—Burden of Proof. In an action to enjoin a city from purchasing fire trucks, on the ground that the seller has not complied with the specifications, the plaintiff did not sustain the burden of proof where there was nothing but argumentative statements and conclusions as to the contents of the specifications.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J.,' entered July 24, 1913, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Highways — Vacation — Abandonment — Burden of Proof — Evidence — Sufficiency. The burden of showing that a dedicated street in an unincorporated town was vacated by remaining unopened for the space of five years, as provided in Ballinger’s Code, § 3803, is upon the party resting claims upon such fact; ana the mere fact that there was no public travel upon the northerly half of such a street does not show that the street was unopened for public use.</p> <p>Same — Prescriptive Rights — Constructive Possession. If a highway is physically open to the free use of the public, the public’s constructive possession is sufficient to protect its acquired paper title.</p> <p>Municipal Corporations — Streets—Abandonment — Vacation— Statutes — Application. Ballinger’s Code, § 3803, providing that any road which remains unopened for public use for the space of five years shall be vacated, has no application to streets in cities and1 towns; and the incorporation of a town exempts from the operation of the statute all roads within the limits that were not vacated at the time of the incorporation.</p>

<p>Taxation — Specification of Object — -Licenses—Peddler’s Pees— Statutes — Constitutionality. Rem. & Bal. Code, § 7067, fixing the license fees to be collected from peddlers for county licenses without specific direction as to its application, does not violate Const., art. 7, § 5, providing that no tax shall be levied except in pursuance of law, and that every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied; since that article of the constitution has reference only to taxes on property.</p> <p>Licenses — Pees—Disposition. Peddlers’ license fees paid to the county -treasurer, pursuant to Rem. & Bal. Code, § 7067, providing therefor without specific direction as to its application, become part of the general fund of the county.</p>

<p>Appeal from a judgment of the superior court for Whitman county, McCroskey, J., entered May 7, 1913, dismissing a will contest, after a trial on the merits to the court.</p>

<p>Frauds, Statute of — Conveyance of Standing Timber. The sale of standing timber, with the right of entry and removal in the future, is within the statute of frauds, Rem-. & Bal. Co-d'e, §§ 8745, 8746, requiring conveyances of real estate or any interest therein to be in writing.</p> <p>Logs and Logging — Conveyance of Timber — Severance — Conversion Into Personal Property. The sale of standing timber with the right to enter upon the land and remove the timber at the pleasure of the grantee, and to have and hold the granted property and privileges forever, conveys a perpetual right to enter and remove the timber at any time; and does not sever the timber from the soil so as to convert it into personal property.</p> <p>Taxation — Standing Timber — Separate Ownership — Assessment. Where standing timber was held under separate ownership from the land1, with the perpetual right of entry and removal, it remains real property, and the land and timber are properly assessable together as real estate, in the absence of any request to have them separately assessed.</p> <p>Taxation — Foreclosure—Summons — Service — Presumptions— Burden of Proof. In a tax foreclosure, the sheriff’s return that defendant, a foreign corporation, could not be found within the county, and an affidavit in usual form to the effect that the defendant was a nonresident and could not be found' in the state, is sufficient to support a judgment in foreclosure, and to put the burden of proof upon the defendant to show that it had officers within the state who could have been personally served.</p> <p>Same — Personal Service — Evidence. The presumption in favor of the judgment in a tax foreclosure against a nonresident corporation, upon service by publication, is not overcome by evidence that personal service could have been made, to the. effect that a manager of the company was it statutory agent and was frequently on the lands in question at the time, but was not there continuously.</p> <p>Taxation — Tax Title — Treasurer’s Deed — Signature. A tax title under a foreclosure regular in all respects, is not invalidated by the fact that the treasurer failed to sign the tax deed, which contained his name in the granting clause and was duly acknowledged by him.</p> <p>Mount, J., dissents.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered June 12, 1913, upon the verdict of a jury rendered in favor of the defendants by direction of the court, in an action for personal injuries sustained at a railroad crossing.</p>

<p>New Trial — Mistrtat.—Bias of Judge — Misconduct—Right to Fair Trial. A new trial should be granted on account of bias on the part of the trial judge and failure to accord a fair trial, where it appears that, on an issue as to the cause of a slide upon the property of adjoining landowners, the judge made a personal investigation of the'location without the consent of the parties, for the purpose of verifying a theory of his own at variance with the expert testimony, and based his 'decision upon his preconceived opinion and because of his own former experiences with slides in the locality, and was evidently prejudiced against one of the experts.</p> <p>Adjoining Landowners — Removal of Lateral Support — Evidence —Admissibility. Upon an issue as to the cause of slides upon property of adjoining landowners, evidence that a third retaining wall, put up under the direction of one of the expert witnesses, had broken after the slide, is admissible to support defendant’s theory that tie slide was referable to tbe general character of the soil, and not to removal of lateral support, and to impeach tbe testimony of tbe experts bolding a contrary opinion.</p> <p>Same — Removal oe Lateral Support — Measure oe Damages. Tbe measure of damages for the removal of lateral support, causing a slide upon plaintiff’s property, is tbe depreciation in tbe value of tbe property immediately before and after tbe slide; and tbe reasonable cost of building a retaining wall may be considered in estimating such depreciation.</p>

Cross-appeals from a judgment of the superior court for King county, Tallman, J., entered June 14, 1913, upon findings in an action on contract, tried to the court.

<p>Sales — Performance or Breach — Tests—Duty to Make Tests —Contract—Construction. A contractor purchasing' cement from dealers subject to specified' tests, assumed the duty of making the tests, where the cement was to be used in the construction of a depot under a contract obligating the contractor to use no cement which did not meet the tests, which were to be made by a firm approved by the architects, at the mill or at the site, at a cost of five cents per barrel to be paid by the railway company, and the contract of purchase required delivery “f. o. b. cars, St. Paul, Minnesota,” and that all claims of the purchaser upon the seller must be made within five days, the cement never being in the possession of the ’dealers who had no opportunity to make the tests.</p> <p>Same — Tests—Time for Making. No time being specified in the contract of sale for making the tests, the contractor had only a reasonable time after delivery for making the tests, which must be before use.</p> <p>Sales — Subject to Tests — Warranty—Condition Precedent. A provision in a contract for the sale of cement that the same shall be subject to tests to be made by the purchaser is not a warranty of quality collateral to the contract, but is a condition precedent to acceptance, placing the consequence of failure to make the tests upon the purchaser.</p> <p>Sales — Performance or Breach — Conditions—Tests—Waiver of Defects. Upon an executory sale of goods subject to inspection, an acceptance by the buyer, with, or without inspection and without notice to the seller of the defects, is a waiver of any claim for damages on account of defects which might have been discovered upon inspection, in the absence of an express warranty intended to survive acceptance.</p> <p>Sales — Subject to Tests — Implied Warranty — Sale by Dealers. Upon an executory sale of cement by dealers to a contractor, subject to specified tests to be made by the contractor, there is no implied warranty that the cement would be fit for the purposes for which it was intended, where any defects were discoverable by application of the tests; there being a distinction between executory sales by dealers and executory sales by manufacturers.</p>

, entered March 19, 1913, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a miner.

, entered. March 28, 1913,- upon findings in favor of the defendants, in an action for an accounting tried to the court.

, entered February 13, 1913, upon findings in favor of the plaintiffs, in an action for an injunction, tried to the court.

, entered April 29, 1913, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by an employee in a warehouse.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered August 6, 1913, in favor of the defendants, upon agreed facts, in an action on contract.</p>

, entered June 24, 1913, dismissing an action to restrain the collection of taxes, upon sustaining a demurrer to the complaint.

, entered July 29, 1913, upon findings in favor of the plaintiffs, in an action for equitable relief, tried to the court.

, entered June 7, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by a taxicab.

, entered February 10, 1914, confirming the organization of an irrigation district and the issuance of bonds, upon overruling a demurrer to the petition.

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered March 25, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Venue — Change—Discretion. It is not an abuse of discretion to refuse a change of venue to S. county, in which two of the defendants resided and in which the other defendant, a corporation, had an office for the transaction of business, where the action wa,s for wrongful attachment of property in W. county, in which county the attachment suit had been tried', and which was the most convenient place for the attendance of witnesses.</p>

, entered March 22, 1913, upon the verdict of a jury rendered in favor of the plaintiff, for $15,000, for personal injuries sustained by one employed in a railroad bridge crew.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J. entered May 28, 1913, upon findings in favor of the defendant, in an action in ejectment, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered March 21, 1913, upon findings in favor of the plaintiff, in an action in tort, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Pendergast, J., entered May 27, 1913, upon findings in favor of the plaintiff, in an action in tort, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Jackson, J., entered May 20, 1913, upon a trial and conviction of seduction.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered November 19, 1913, dismissing an action for an accounting, after a trial on the merits to the court.</p>

<p>■ Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered April 28, 1913, sustaining, -upon certiorari, the refusal of the commissioner of public lands to cancel a state deed of oyster lands.</p>

<p>Judgment — By Default — Vacation — Petition. An application for the vacation of a default judgment for the reason that process was not served upon any officer or agent upon whom service was authorized1, falls within Rem. & Bal. Code, § 464, subd. 3, permitting the vacation of judgments for irregularity in obtaining them; and under Id., § 467, need only be by petition verified by affidavit, no affidavit of merits being necessary.</p> <p>Same — Petition—Verification. A petition for the vacation of a default judgment, required by Rem. & Bal. Code, § 467 to be verified by affidavit, may be verified by the attorney instead of an officer or agent of a corporation, especially where the petition shows want of jurisdiction in the court to render the judgment for want of proper service, within Id., § 464, subd. 3.</p> <p>Corporations — Foreign Corporation — Actions — Garnishment— Service of Process. The service of a writ of garnishment upon a local manager of a foreign corporation is sufficient, in view of Rem. & Bal. Code, §§ 687 and 226, providing for service upon nonresident corporations by delivery to any agent, cashier or secretary thereof.</p> <p>Garnishment — Writ—Service—Waiver. Appearance by a garnishee requesting permission to defend the writ'Without preserving a special appearance, waives objection to the sufficiency of the service.</p> <p>Judgment — By Default — Vacation—Grounds—Discretion. It is not an abuse of discretion to vacate a default judgment against a foreign corporation, on application made within five days after entry of the judgment, where it appears that service was made upon a salesman of the corporation who failed to take the necessary steps through ignorance, in view of the liberality of the statutes authorizing service upon agents not familiar with legal proceedings, requiring an equally liberal discretion in vacating defaults.</p> <p>Garnishment — Answer—Sufficiency. Upon an application to vacate a default judgment against a garnishee, a petition stating that the garnishee owed no debt to the defendant and had in its possession no goods belonging to the defendant, states facts constituting a meritorious defense, and' not a mere conclusion to that effect.</p> <p>Trial — By Court — Findings of Fact — Necessity. Rem. & Bal. Code, § 307, requiring findings of fact and conclusions of law upon issues of fact tried to the court, has no application to the trial on a petition to vacate a judgment of default-because of excusable neglect, mistake, or inadvertence, since it is addressed to the discretion of the trial court and is reviewable on appeal upon the whole record.</p> <p>Garnishment — Answer—Signing. Rem. & Bal. Code, § 690, providing that the answer of a garnishee shall be under oath, in writing, and signed by the garnishee is sufficiently complied with where the secretary of the garnishee swore to and signed a verification stating that he had read the answer, knew the contents thereof, and believed the same to be true.</p> <p>Same — Trial—Issues and Proof. In proceedings against a garnishee, under an answer of “no funds” and “nulla l>ona,” the garnishee may show that the defendant had' owerdrawn his account at the time of the service of the writ.</p> <p>Same — Operation and Effect — Debts Subsequently Accruing. A writ of garnishment only holds the moneys or goods of the defendant in the hands of the garnishee at the time of the service of the writ, or at any time thereafter until the service of the answer of the garnishee, and not debts created or salary earned thereafter until the time of the trial; in view of Rem. & Bal. Code, § 683, requiring the garnishee to answer as to what moneys or effects of the defendant he has in his possession or had when the writ was served1; Id., § 688, prohibiting the delivery of debts or effects to the defendant after service of the writ, and §§ 692 and 693 relating to the form of the judgment; and in view of Id., § 703, exempting from garnishment current wages or salary to the amount of $100, for a period of four weeks.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered November 20, 1913, dismissing an action for personal injuries sustained by a miner, upon sustaining a demurrer to the complaint.</p>

<p>Municipal Corporations — Streets—Electricity ■— Franchises— Conditions — Forfeiture—Powers of City. Under Rem. & Bal. Code, § 7507, subd. 7, empowering cities of the first class to control the use of streets and to authorize or prohibit the use of electricity at, in, or upon any of the streets, and to prescribe the times and conditions upon which the same may be used, a city of the first class, in granting a franchise to transmit and sell electric current furnishing power and heat and lighting for street cars, has power to insert the condition that the grantee shall not furnish electricity for lighting purposes and that breach of the condition should work a forfeiture of the franchise; especially where the charter adopted by the people intended to reserve to themselves the exclusive right to furnish light to the city and its inhabitants, to the extent of the ability of the city to do so.</p> <p>Electricity — Franchises—Conditions—Abrogation. The public service commission law, 3 Rem. & Bal. Code, §§ 8626-8, 8626-30, and 8626-33, dealing with the questions of the safety, efficiency, rates, and equality of public service, did not abrogate or affect a prior city franchise granting the right to transmit and furnish electric current for the purposes of furnishing heat and' power and lighting for street cars on condition that the grantee should not furnish electricity for lighting purposes.</p> <p>Electricity — Franchises—Forfeiture. Where a franchise ordinance for furnishing electricity for heat and power prohibited the furnishing of electricity for lighting purposes after the city should be able to supply the same, and provided for a forfeiture of the franchise and all property not removed from the streets within sixty days, on failure of the grantee to comply with any of its conditions after thirty days notice to d'o so, the grantee cannot complain of the forfeiture of the franchise and property, where it furnished electricity for lighting purposes under a revocable permit until the city was able to furnish the same, and continued to do so for more than thirty days after notice revoking the permit and requiring it to cease furnishing current for lighting purposes within thirty days or the city would consider the franchise null and void and forfeit all property not removed from the streets within sixty days, it appearing that the city was able to furnish the current for lighting purposes.</p> <p>Same. Where an electric power company was furnishing electric light to a railway company, under a revocable permit until the city was in a position to furnish the same, and refused to discontinue the lighting service upon notice, as required in its franchise, forfeiture of its franchise for breach of condition cannot be avoided' ty showing that both its power and lighting service had been furnished in one load to the railway company, which did its own transforming, and that the city was not in a position to take over the whole load, or that it would cost the railroad company a considerable sum to readjust its system to take lights from the city, where it appeared that the city had the ability to furnish the lights, and the railway company could have qualified itself to receive the same within the time limited, and was not complaining.</p> <p>Same — Franchises—Forfeiture—Evidence. In an action to prohibit a city from forfeiting a franchise, evidence is inadmissible of a conversation between the grantee’s superintendent and the city attorney prior to the passage and service of notice of forfeiture, whereby the city took definite action of which the grantee was duly notified.</p>

<p>Navigable Waters — Obstructions — Log Jams — Riparian Rights —Injury to Banks — Instructions. A logger owning a considerable number of logs forming a jam through want of reasonable care in looking after the logs, who does not remove the jam within a reasonable time, is liable to riparian owners where the jam was the proximate cause of injury to the land; but it is error to instruct that each of several owners would be liable for the whole injury, where there was evidence warranting the jury in finding that the defendant owned' only a very few of the 800 logs forming the jam and that the owners had acted independently of each other in putting the logs in the river.</p> <p>Same — Log Jams — Injury to Banks — Evidence—Admissibility. In an action by a riparian owner for injuries to land by reason of a log jam caused by defendant’s logs and failure to remove the jam within a reasonable time, the rules of the secretary of war regulating the driving of loose logs on certain navigable waters, to the effect that operations must be conducted to prevent the formation of jams, are inadmissible, since the injury was not sustained while exercising a right of navigation.</p>

Jurey, Esq., judge pro tempore, entered January 17, 1913, upon findings in favor of the defendant, in an action on contract, tried to the court.

<p>Constitutional Law — Police Power — Factors — Regulation— Equal Protection op tee Laws. It is a valid exercise of the police power of the state to require of commission merchants engaged in selling farm, dairy, orchard, or garden produce, to obtain a license and give a bond to the state “executed by a surety company,” authorized to do business in this state, in the sum of $3,000, for the benefit of persons causing produce to be sold on commission; and it is not unconstitutional as a denial of equal protection of the laws, in that it required a surety bond in place of a money deposit or personal security.</p> <p>Contracts' — Validity — Violation op Statutory Regulations— Collateral Contracts — Factors—Indemnity—Depenses. It is no defense to an action on a bond given by a compensated surety, guaranteeing the fidelity of an employee of a commission merchant, that the merchant was doing business without a license or bond, in violation of Rem. & Bal. Code, § 7024 et seq., making it “unlawful” and a misdemeanor so to do; since the act does not invalidate the contracts made by such a commission merchant, and the failure to comply with the statute was collateral to the bond.</p>

<p>Sales — Conditional Sales — Filing—Residence oe Corporations. Under Rem. & Bal. Code, § 3670, requiring conditional sales contracts to be filed in the office of the auditor of the county wherein the vendee resides, a record in the county where the property is situated is not a compliance with the statute, where the vendee was a corporation having its principal place of business in another county.</p> <p>Sales — Conditional Sai.es — Filing — “Creditors”—Necessity oe Liens. Rem. & Bal. Code, § 3670, providing that conditional sales contracts, where the property is placed in the possession of the vendee, shall be absolute as to subsequent creditors in good faith, unless the contract is filed, means those creditors only who have acquired some form of lien on the property; hence does not include a receiver representing general, unsecured creditors, who had extended credit to the insolvent without knowledge of the delivery of the property to the insolvent.</p>

<p>Appeal by defendant from a judgment of the superior court for Okanogan county, C. H. Neal, Esq., judge pro tempore, entered March 81, 1913, in favor of the plaintiff, in an action for reformation.</p>

<p>Reformation of Instruments — Mutual Mistake — Complaint— Sufficiency. A complaint in an action to reform a deed shows a mutual mistake and1 states a cause of action, where it alleges that the defendant sold plaintiff 2% acres of land at $2,500 per acre, and staked the same out upon the ground, exclusive of roads, and later gave the deed in question disregarding the stakes and containing but 2y2 acres including road's on the west and north boundaries, making a deficit of about half an acre.</p> <p>Appeal — Review—Amendments to Conform to Proof. In a case tried to the court in which each side fully presented its evidence on the real issue, a defective complaint will be deemed amended on appeal to conform to the proof.</p> <p>Reformation of Instruments — Mutual Mistake — Evidence. To warrant the reformation of a deed for mutual mistake, the evidence must he clear and convincing that the writing was not what the parties intended it to be.</p> <p>Same — Mutual Mistake — Evidence—Sufficiency. It sufficiently appears, by clear and convincing evidence, that there was a mutual mistake in a deed of 2% acres, including the area in roads on the north and west boundaries of the tract, where it appears that the grantor, owning a five and one-half acre tract, agreed to sell 2% acres, at $2,500 per acre, and measured with a tape and set a stake on the east side of the west road, which he stated would be the boundary, and which made 2% acres exclusive of the roads, and later moved the stake 42 feet north ancí made deed accordingly so as to grant but 2% acres including both roads, that the grantor informed the grantee that one-half of the north road “comes off the tract,” but nothing was said about the grant being subject to the west road; since it was clearly implied that the purchase of the north two and one-half acres included the north road but not the west road.</p> <p>Same — Mutual Mistake — Defenses — Negligence. The negligence of a party is not ground for denying the reformation of an instrument upon the ground of mutual mistake, shown by clear and convincing evidence.</p> <p>Same — Time to Sue — Laches. A delay of two years in commencing an action for the reformation of a deed upon the ground of mutual mistake does not bar the action, where the claim of mistake was promptly made, the defendants had the possession of the land in dispute, and were not prejudiced by the delay.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered July 30, 1913, upon a trial and conviction of contempt, upon the hearing of a show cause order, in an action for specific performance.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered November 24, 1918, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

, entered June 24, 1913, granting defendant a new trial unless plaintiff remitted $3,500, after the verdict of a jury for $6,000 for personal injuries sustained in a fall down an elevator shaft.

, entered February 19, 1914, in favor of the plaintiif, in an action upon an indemnity bond, upon overruling a demurrer to the complaint.

<p>Certiorari to review a judgment of the superior court for King county, Frater, J., entered March 20, 1914, granting a writ of prohibition, upon overruling a motion to quash the same.</p>

<p>Evidence— Experts — Opinions. The statement of a witness, testifying as an expert, that smooth concrete steps when wet would constitute a dangerous footing, is incompetent as an expression of opinion.</p> <p>Negligence — Dangerous Premises — Evidence—Sufficiency. The evidence is insufficient to show negligence in the maintenance of smooth concrete steps leading to a swimming tank, from the fact that plaintiff stepped thereon and attributed the accident to the slimy or slippery condition of the steps, where the uncontroverted evidence established that thousands of people went up and down the steps without falling, that the steps were of usual construction, and were scrubbed and washed with fresh water three times a week, and other witnesses using the steps observed no slippery or dangerous condition.</p>

<p>Religious Societies — Ministers—Salary—Contracts—Construction. A church corporation is not liable for a minister’s salary, where no definite amount was to be paid him in any event, and it was understood that his salary was contingent upon voluntary subscriptions, which were only estimated, and were not collected, and the rules of the society, with which he was furnished a copy, provided that neither the trustees nor congregation had' any voice in selecting a pastor or any power to make any contract with reference thereto binding upon the church.</p>

, entered September 16, 1918, dismissing an application to be adjudged the widow of the deceased, after a hearing on the merits and an advisory verdict by a jury.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered April 22, 1913, dismissing a will contest, after a trial on the merits to the court.</p>

<p>Fraud — Misrepresentations—Evidence—Supetciency. Findings that money paid to defendant on an assignment of a conditional sales contract was secured by fraud are sustained, where it appears that machinery had1 been sold by the defendant to a bankrupt, on the conditional sales contract, the full purchase price not being paid, and the plaintiff having an inferior lien on the property, negotiations were had looking to the plaintiff’s paying the balance due on defendant’s lien and taking the property, that the defendant falsely represented the balance due to the extent of $504.40, including the amount of other unsecured claims of the defendant against the bankrupt, knowledge of which was suppressed, and that plaintiff relied on the representations, after asking for a guaranty that the sum was due on the contract, which defendant assented to, and added to the assignment, in pencil, the words “which is guaranteed the balance due from the above named company.”</p> <p>Chadwick, J., dissents.</p>

, entered March 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 logging camp.

<p>Constitutional Law — Police Powers — Equal Protection of the Laws — Due Process — Regulation of Business — Trading Stamps. Under the recent decisions holding the police power to extend to all the great public needs, and the rule that the power should be sustained' if a state of facts can reasonably be presumed to exist which would justify the legislation, 3 Rem. & Bal. Code, § 7069-1, construed as prohibiting the use of trading stamps, is a valid exercise of the police power, and hence does not violate the provisions of the state or Federal constitutions relating to the equal protection of the laws or due process of law (Overruling Leonard v. Bassinddle, 46 Wash. 301).</p> <p>Mount and Gose, JJ., dissent.</p>

<p>Appeal — Record—Statement oe Facts — Aefidavits. Affidavits used below in tbe nature of evidence cannot be considered on appeal, unless brought up by bill of exceptions or statement of facts.</p> <p>Actions — Dismissal—Failure to Prosecute — Discretion. It is discretionary to dismiss an action for want of prosecution where it had been pending since 1906, the plaintiffs took no affirmative measures looking to the formation of an issue, continuances by stipulation extended inaction until June 15, 1909, when the defendants filed a demurrer, where the matter rested until February, 1911, when defendants moved for the dismissal, and the plaintiffs were without any attorney authorized to represent them from October, 1907, to April, 1913.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered April 18, 1913, dismissing an action for malicious prosecution, notwithstanding the verdict of a jury rendered in favor of the plaintiff.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered March 27, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, for personal injuries sustained in a fall upon a sidewalk.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Claypool, J., entered July 17, 1913, upon findings in favor of the plaintiff, in an action in tort, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Asotin county, Miller, J., entered July 19, 1918, dismissing an action to recover money paid, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered March 15, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered July 11, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered October 19, 1911, confirming an assessment roll, upon appeal from the eminent domain commissioners.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered June 26, 1913, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered August 16, 1913, confirming an assessment roll, on appeal from the eminent domain commissioners.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered June 18, 1918, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort, after a trial on the merits.</p>

<p>Appeal from a judgment of the superior court for King county, Everett Smith, J., entered May 8, 1913, upon findings in favor of the defendant, for personal injuries sustained by a pedestrian in a fall upon a sidewalk.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered November 29, 1913, denying an application to set aside the forfeiture of bail.</p>