Volume 81 — Washington Reports

<p>Application filed in the supreme court January 23, 1914, for a writ of mandamus to compel the performance of duties by the state fish commissioner.</p>

<p>Appeal from a judgment of the superior court for What-com county, Pemberton, J., entered April 5, 1913, dismissing an action for an injunction, upon dissolving a temporary injunction.</p>

<p>Certiorari to review a judgment of the superior court for King county, Gilliam, J., entered July 20, 1914, dismissing an application for a writ of mandamus, upon overruling a demurrer to the answer.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Back, J., entered April 24, 1918, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered August 2, 1913, confirming an order of the public service commission, upon review by writ of certiorari.</p>

<p>Appeal from a judgment of the superior court for Klickitat county, Darch, J., entered June 9, 1913, upon findings in favor of the plaintiff, in an action for divorce.</p>

<p>Attachment — Pleading—Affidavits—Negative Pregnant. Where the procuring affidavit alleged, in the conjunctive, the statutory-grounds for attachment, the affidavit supporting defendants’ motion to dissolve the attachment is not had as a negative pregnant in that a clause contained therein denied the allegations, also in the conjunctive, where it further alleged, in effect, matter negativing every allegation of the plaintiffs’ procuring affidavit, and the same will be held sufficient to put in issue the allegations of plaintiffs’ affidavit, under the statutory rules commanding a liberal construction of pleadings, and in the absence of a demurrer thereto or of a motion to make its denials more specific.</p> <p>Attachment — Dissolution — Affidavits — Trial — Issues and Proof. On hearing of a motion to dissolve an attachment, in which defendants’ moving' affidavit was a sufficient traverse of plaintiffs’ procuring affidavit, thereby presenting an issue, the court committed no error in admitting defendants’ evidential affidavits, and the burden of proof rests on the attaching party.</p> <p>Attachment — Grounds — Burden of Proof — Evidence — Sufficiency. The plaintiffs failed to sustain the burden of proof showing grounds for a writ of attachment, where their single evidential affidavit averred facts not grounds therefor, and every material fact relied on to sustain the writ was sufficiently denied or explained by the defendants’ controverting affidavits.</p>

<p>Brokers — Contract for Commissions — Right to Forfeited Deposits — Construction. Brokers employed to sell real property and not to negotiate options, are not entitled to retain sums paid for options and forfeited by intending purchasers during the life of the agreement, but are bound to account for the same, since the consideration for the payments being furnished by the owner, he is entitled to the money.</p> <p>Interest — Liability of Agent on Open Account — Unliquidated Demands. In an action for an accounting against brokers employed to sell lands, under a contract of four years’ standing, during which time the account was open and unliquidated, it is proper to allow interest on quarterly balances as determined by expert accountants from the books of both parties, though, as a general riile, interest is' not allowed on unliquidated demands, where it appears that demand had been made upon the brokers, from time to time, for an accounting and payment of balances due, with which they failed or refused to comply, and while the owner had made some sales, an accounting to the brokers for these could have been had at any time for the asking; since equity will not deny interest where the balances at any period of the contract were readily ascertainable.</p> <p>Appeal — Harmless Error — Scope op Accounting. In an action for an accounting, the inclusion in the final account of sums admittedly due to the plaintiff, upon land contracts assigned to the defendants, is not prejudicial error, where it appeared that the assignments were of contracts connected with the subject-matter of the agency, the parties were all before the court, no surprise was claimed, and defendants included the items in a statement looking to an adjustment of the account with plaintiff.</p> <p>Frauds, Statute of — Brokers—Contract for Commissions — ■ Pleading — Estoppel. Commissions retained by brokers, acting un: der a contract within the statute of frauds, are not recoverable by the owner in an equitable action for an accounting, where it appears that the plaintiff failed to plead the statute, the commissions were earned under an admitted agreement, were retained without objection prior to suit, and were charged against plaintiff in his own statement of the account, his conduct amounting to an estoppel as against a plea of the statute.</p> <p>Costs — On Appeal — Cross-Appeal. Both parties having appealed, and the judgment having been affirmed, neither can recover costs on appeal.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered December 23, 1913, dismissing an action to restrain a nuisance, upon sustaining a demurrer to the complaint.</p>

<p>Appeal — Review—Findings. Findings of the lower court upon evidence sharply conflicting upon every material point, will not be disturbed on appeal, unless the evidence preponderates against them.</p>

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered December 1, 1913, upon findings in favor of the plaintiff, in an action for lumber sold to a contractor, used in a city improvement.</p>

<p>Continuance — Grounds—Surprise. It is not error to deny a continuance upon granting leave to amend the answer, where the amendment pleaded facts within the knowledge of the plaintiffs and which they should have been prepared to meet under the general issue, and it does not appear that prejudice resulted thereby.</p> <p>Pleading — Trial Amendment — Definiteness—Prejudice. A trial amendment of the answer is not indefinite and uncertain if sufficient to apprise plaintiffs of defenses relied on; the facts pleaded being within their knowledge, and, in effect, proven by calling one of them to the stand.</p> <p>Appeal — Harmless Error — Exclusion of Evidence. Error cannot be predicated upon the exclusion of evidence as to a conversation after having admitted part of it, where the entire transaction was testified to by other witnesses.</p> <p>Costs — Taxation—Witness Fees. Mileage of a witness may be taxed as costs though the witness failed to report attendance to the clerk from day to day as provided by statute, if the witness was called to the stand and testified.</p> <p>Exchange of Property — Fraud—Rescission—Waiver—Lack of Diligence. Rescission will not be allowed plaintiffs, parties to a contract for an exchange of properties, who, after ample time to ascertain alleged fraud inducing the exchange, treated the land as their own and offered it for sale for their own benefit, and several months later brought suit to rescind.</p> <p>Vendor and Purchaser — Rescission by Vendee — Waiver—Laches. The right to rescind must be promptly exercised and will not be granted to vendees, where the parties had ample time to inspect the land, did so inspect it, treated it as their own, and later offered it for sale without notice to the vendors of any dissatisfaction, and delayed four months longer before bringing suit to rescind.</p>

<p>Husband and Wife — Community Debts — Torts—Acts in Official Capacity. A judgment rendered against a member of a community, for a wrongful levy made by him while sheriff, is not a community debt, and the community property is not liable therefor.</p>

, entered January 5, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a seaman in loading a ship.

, entered January 31, 1914, upon granting a nonsuit, dismissing an action for the wrongful death of a coal miner, killed by a falling roof in a mine.

<p>Appeal from a judgment of the superior court for King county, Irwin, J., entered July 30, 1913, in favor of the defendant, upon the pleadings, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered July 17, 1913, upon findings in favor of the*plaintiff, in an action for rescission, tried to the court.</p>

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered January 24, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a sawyer in a shingle mill.</p>

<p>Sales — Breach op Warranty — Waiver—Acceptance. An acceptance of goods sold under a warranty as to quality is a waiver of the right to rescind, but does not waive the right to recover damages for breach of warranty in an action for the price.</p> <p>Same — Breach op Warranty — Acceptance—Presumptions. Failure to notify the vendor of defects in goods sold under a warranty, or offer to return them within a reasonable time after discovering the defects, raises a presumption that the goods received were of satisfactory quality.</p>

<p>Appeal from a judgment of the superior court for Island county, Ralston, J., entered October 9, 1913, upon findings in favor of the plaintiffs, in an action to restrain obstruction of a road.</p>

, entered February 11, 1913, upon findings in favor of the plaintiff, in consolidated actions for rescission, tried to the court.

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered September 9, 1913, in favor of the plaintiffs in garnishment proceedings, upon an agreed statement of facts.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered September 2, 1913, upon the verdict of a jury rendered in favor of the defendant, in an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered February 26, 1913, confirming an assessment roll, on appeal from eminent domain commissioners.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered October 20, 1916, dismissing an action in tort, upon granting a nonsuit.</p>

<p>Appeal — Record—Abstract—Sufficiency—Dismissal. An appeal will be dismissed for failure of tbe abstract of tbe record to comply with 3 Rem. & Bal. Code, § 1730-1 et seq., and rule six of the supreme court, where it contained no part of the record other than the statement of facts, was not indexed, contained no reference by page to the statement of facts, and did not follow the form prescribed; and the fact that the appellant filed with its reply brief an abstract conforming to the statute and rule would not cure defects in the former abstract.</p>

<p>Limitation oe Actions — Statutory Bond. An action on a bond given to the state by a contractor, as required by Bern. & Bal. Code, § 1159, when work is contracted to be done for the state, county, municipality or other public body, is barred by the statute of limitations, where more than three years elapsed between the accrual of the action and the filing of the complaint.</p>

, entered September 13, 1913!, in favor of the defendants, notwithstanding the verdict of a jury in favor of the plaintiff, in an action for deceit.

<p>Contracts — Mutuality—Open Bids — Withdrawal Before Acceptance. Contractors submitting a bid for construction work under an invitation therefor containing a reservation of tbe right to reject any and all bids received, may withdraw the same at any time before acceptance, since the bid was no more than a proposal, and there could be no mutuality or contract relation until the acceptance of the bid.</p>

<p>Chattel Mortgages — Stock op Goods — Permitting Sales- — Reduction op Debt — Validity. A chattel mortgage óf a stock of goods providing that the mortgagor might reduce said stock of goods as low as $12,000, but in such event one-half the reduction should be paid to the mortgagee on his note and mortgage, is not void nor fraudulent as to creditors unless given for the purpose of aiding the debtor in defrauding such creditors.</p> <p>Same — Provision for Retention op Proceeds — -Validity. The provision permitting the mortgagor to retain one-half the proceeds of sales which reduced the stock to $12,000 is not shown to have been included for the purpose of defrauding creditors, where the only evidence as to intent of the parties in including the provision in the mortgage was that of the mortgagee, who construed it as meaning that he was to receive one-half the proceeds in case the stock should be reduced to $12,000, and that the payment of one-half the reduction to the mortgagee would leave ample funds in the hands of the mortgagor to carry on the business and meet current bills; the stock, though reduced, being considered ample in amount for the protection of all parties interested.</p> <p>Same — Proceeds op Sale — Accounting—Payment op Mortgage. A provision in a chattel mortgage of a stock of goods permitting the mortgagor to reduce its stock as low as $12,000, but in event of such reduction one-half the proceeds should be paid to the mortgagee on his note and mortgage, does not make the mortgagor the agent of the mortgagee to receive the proceeds of sale for application on the mortgage indebtedness, and thereby require an accounting by the mortgagor and a reduction of the mortgage by one-half the proceeds of such sales whether paid to the mortgagee or not.</p>

, entered February 13, 1914, upon findings in favor of the plaintiff, in an action for specific performance, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered November 15, 1913, upon the verdict of a jury rendered in favor of the plaintiif, in an action for the wrongful death of a passenger on a railroad train.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered April 18, 1914, in favor of the defendant upon the pleadings, in an action for an injunction.</p>

<p>Certiorari to review an order of the superior court for King county, Gilliam, J., entered July 25, 1914, dismissing an action for an injunction, upon sustaining a demurrer to the complaint.</p>

<p>Injunction — Bonds—Judgment Against Principal — Liability— Notice and Opportunity to Depend. A bond given by a surety in an injunction suit, conditioned to pay “all damages that may be awarded against the principal in any action hereafter brought to determine the damages,” contemplates an award against the principal by judgment in litigation thereafter prosecuted, and is an undertaking by the surety to abide and perform the judgment, hence the surety is bound thereby though having no notice of suit against the principal, nor opportunity to defend.</p> <p>Injunction — Bonds •— Conditions — Construction — Damages Against Principal — “Action” — Commencement — Amendment op Complaint. Where plaintiffs brought an action to restrain a drainage district and its commissioners from trespassing on their lands during the construction of a drainage ditch, and the defendant filed a bond executed by a surety company conditioned that it should pay all damages that might be awarded against it in any action thereafter brought to determine the damages, and plaintiffs later, after the commissioners had proceeded with the construction of the work, filed an amended complaint in the injunction suit demanding a money judgment for damages, which was awarded them with costs, the filing of the amended complaint was the bringing of an action within the meaning of the bond, and it was not necessary to institute a new action by service of summons and complaint in order to bind the surety; since the course pursued was no material departure from that contemplated in the bond.</p> <p>Same — Extent op Liability — “All Damages.” In such case, liability under the bond cannot be limited to damages suffered subsequent to its execution, where it was clearly intended that the bond should cover all damages awarded resulting from the specified cause.</p> <p>Indemnity — Agreement—Personal Liability op Officials. An indemnity agreement signed by commissioners of a drainage district, without any mention of the drainage district or their official capacity, made as an inducement for the execution of a surety bond for the protection of landowners from damage occasioned through the construction of a drainage ditch, which recited that “we certify . . . and promise and agree to pay . . . and to keep indemnified the said company, etc.” and which followed the application for the bond in which the drainage district was designated as applicant, is a personal undertaking rendering them liable over to the surety company upon judgment being rendered against it.</p> <p>Evidence — Paeol Evidence to Vary Writing — Official Capacity of Signers. An indemnity agreement, unambiguous on its face, showing a personal undertaking on the part of officials signing the same, cannot be varied by parol testimony to show that they intended signing in their official capacity.</p>

<p>Appeal by defendants from a judgment of the superior court for Clallam county, Ralston, J., entered July 81, 1913, awarding damages in condemnation proceedings, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Grant county, Steiner, J., entered April 16, 1913, upon findings in favor of the plaintiff, in an action in tort, tried to the court.</p>

<p>Executors and Administrators — Final Distribution — Persons Concluded. A final decree of distribution, made upon due notice and unappealed from, decreeing the property to be community property of deceased and bis widow and distributing the same to her as sole heir is final and conclusive, and cannot be attacked more than a year thereafter by one claiming an interest as sister and heir of deceased and that the property was his separate property.</p> <p>Constitutional Law — Due Process — Constructive Notice in Probate. The mode of giving notice in probate as provided by statute, although by publication and posting, preliminary to the rendering of orders and decrees, amounts to due process of law, making orders and decrees rendered in pursuance thereof as binding on interested parties as if brought into court by personal notice.</p> <p>Executors and Administrators — Final Distribution — Conclusiveness — Fraud—Extrinsic or Collateral — -Evidence — Sueeiciency. A final decree of distribution, made upon due notice and unappealed from, decreeing the property to be community property of deceased and his widow and distributing the same to her as sole heir, is final and conclusive on all the world, and will not be set aside at the suit of a claimant more than a year thereafter for alleged fraud in procuring the decree, praying that the property be declared held by defendant as involuntary trustee to the extent of claimant’s interest therein, where it appears that claimant, an alleged sister and heir of deceased, had never been a resident of this state, and had no communication with, nor knew the whereabouts of, deceased for a period of seventeen years, but had communication with defendant prior to distribution of the estate, claiming to be a sister and heir of deceased, which defendant denied, that claimant, while having no actual notice of the administration of the estate until sometime after final settlement, had constructive notice thereof given strictly as prescribed by statute, that claimant was not prevented from appearing at the distribution hearing and protecting her alleged rights, nor induced to believe that they would be protected in her absence, but, on the contrary, defendant’s acts and communications with claimant were at all times consistent with the course pursued by her in claiming the whole estate during administration thereof, and she at all times dealt at arm’s length in opposing the alleged rights of claimant; since defendant’s fraud, if any, was involved in the question of defendant’s right to take all the property of deceased as his wife and sole heir, and was not extrinsic and collateral to the merits of the matter before the court, but inhered therein and was concluded by the decree.</p> <p>Trusts — Constructive Trusts — Fraud in Acquisition oe Propertv — Probate Proceedings. Where property was awarded to defendant as widow and sole heir of deceased, by a decree of distribution rendered upon due notice, conclusive and binding upon all parties, it cannot be claimed, more than one year thereafter, that defendant holds the property as involuntary trustee to the extent of an interest claimed by one alleged to be a sister and heir of deceased, on the ground of fraud perpetrated by defendant in procuring the decree; since the issue to be determined was defendant’s right to take all of the property of deceased as his wife and sole heir, and is concluded by the judgment, in the absence of fraud extrinsic of the merits of the controversy.</p>

<p>Mechanics’ Irens — Contracts — Performance — Acceptance of Work. Where plaintiff’s assignor agreed with defendant to furnish materials and install a refrigerating plant, and warranted the plant to furnish a specified amount of refrigeration and to work to the satisfaction of defendant, but the plant proved defective and, after repeated effort, any attempt to put it in working order was abandoned, the fact that defendant mortgaged the premises while the plant was being installed and that he later conveyed the premises pending suit to foreclose a lien thereon, did not constitute an acceptance of the work.</p> <p>Same — Default of Contractor — 'Liability of Owner for Parts Used. Where contractors installed a refrigerating plant under a contract guaranteeing a certain amount of refrigeration and that the plant would work to the satisfaction of the purchaser, but the plant proved defective and all attempts to put it in working order were finally abandoned, the contractors are not entitled to recover the entire purchase price because certain parts of the plant were retained and used by the purchaser in the necessary installation of another plant, but can only recover for the parts retained and used in the installation of the second plant.</p>

<p>Frauds, Statute of — Contract for Broker’s Commissions — Definiteness. A contract reciting that each party to an exchange of properties agrees to pay “a commission of two and one-half per cent, or such as agreed upon,” is void as within the statute of frauds, since there is no definite basis on which to compute a commission, but merely an agreement for a commission to be subsequently agreed upon.</p>

<p>Food — Diseased Meat — Sales—Actions—Issues. A complaint alleging that “the defendant negligently and carelessly sold and delivered to plaintiff a certain piece or parcel of poisoned and diseased meat . . . which was then and there unfit for human food, etc.” determines the action as one for negligence of defendant in selling diseased meat unfit for human food, and it is error for the court to disregard the allegations of the complaint and instruct the jury that defendant’s liability is to he determined under the provisions of the pure food act, Rent & Bal. Code, §§ 5453, 5455, and to read the same to the jury as the law of the case.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered October 23, 1913, dismissing an action on an insurance policy, upon granting a nonsuit.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Mills, J., entered January 24, 1914, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Ebauds, Statute of — Contbact fob. Broker's Commissions — Description of Property. A written contract to pay a broker’s commission on a sale of real estate is void as within the statute of frauds, Rem. & Bal. Code, § 5289, where the property is described as “my property, including one hundred and twenty-one acres of land near Ephrata, and appurtenances, water right, water contract with the city of Ephrata, etc., etc.,;” since the description cannot be applied to any definite property without resort to parol testimony.</p> <p>Same — Description—Sufficiency. A description of property, in a broker’s contract of employment, is insufficient if it does not meet the requirements of a sufficient description under any other phase of the statute of frauds, as when invoked in actions for specific performance.</p>

<p>Frauds, Statute of — Contract foe Broker’s Commission — Description of Property. A written contract to pay a broker’s commission on a sale of real estate is void as within the statute of frauds, Rem. & Bal. Code, § 5289, where the property is described as “my timber and sawmill near Dupont . . . land, timber, mill and all,” since the description is insufficient to determine the property included in the contract, without resort to parol testimony.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered July 21, 1913, confirming an assessment roll, on appeal from the city council.</p>

<p>Contracts — Building Contracts — Performance or Breach — Construction. An agreement “to recut all granite now on the building grounds that can possibly be used, and to furnish, cut and deliver on said building grounds all new Spokane granite that may be necessary to complete” certain steps, platforms, and granite courses shown by the plans, is plainly an agreement to recut only such granite then on the grounds as could be used for the purposes stated.</p> <p>Same — Ambiguity—Construction—“Steps” and “Buttresses”— Evidence — Sufficiency. Where plans and specifications referred to in a subcontract for the stone work in a building provided for buttresses flanking the steps and platforms, the buttresses are not a part of the steps and the contract for cutting the granite for the “granite steps, platforms, and the two granite courses,” does not include the cutting of granite for buttresses as well, where the contract was unambiguous in excluding all things not enumerated, and neither the contract nor the specifications contained anything that would tend to indicate that the word “steps” was used in a generic or technical sense, and the evidence failed to show any custom of builders that buttresses are to be considered a párt of the steps and assumed to be made of the same material unless otherwise designated in the specifications; but, on the contrary, it was conclusively shown, by expert witnesses, that buttresses were usually made of the same material as the wall against which they abut, rather than of the material used in constructing the steps, and that a contract like the one in question would be construed as not including the cutting of granite for buttresses, and it was further shown that, at the time the plans and specifications were prepared and the contract let, it had not been fully decided that the buttresses should be of granite, there being evidence that an extra bid for cutting granite for the buttresses was subsequently requested.</p> <p>Municipal Coepoeations — Impeovements—Contbactob’s Bonds— Actions — Condition Pbecedent — Notice oe Lien- — Time bob Filins. The filing of a notice of lien by a subcontractor after completion of his work on a school building, but before formal acceptance by the school board of work under the general contract, is a compliance with Rem. & Bal. Code, § 1161, which fixes thirty days after acceptance as the limit beyond which an effective notice of claim cannot be filed against the contractor’s bond; since the statute was intended to fix a limit beyond which the notice of claim cannot be filed, and not a limit before which its filing would be ineffectual.</p>

<p>Railroads — Regulation—Train Service — Orders oe Public Service Commission — Review. The reasonableness and lawfulness of an order of the public service commission respecting train service to be rendered a town is reviewable under Rem. & Bal. Code, § 8629, and tbe presumption that tbe commission acted reasonably and lawfully must be clearly overthrown before tbe order will be set aside.</p> <p>Same — Interstate Trains — Local Service. Although a railroad company operates only interstate trains, it may he required by the public service commission to render an adequate local service for the accommodation of the traveling public.</p> <p>Same — Adequacy oe Train Service — Evidence—Sufficiency. A finding by the public service commission that train service furnished the town of K. was inadequate, and that a change of schedule would be to the advantage of the inhabitants thereof, is warranted by the evidence, where it was shown that there was a population of 1,500 people within a radius of nine miles, who, for the most part, transacted their business at K., that there were four jury terms of court at the county seat thirty miles west of K., and that the service ordered would best serve the convenience of those attending court, and would enable them to travel west to the county seat, or east to Spokane to transact business, and return the same day, that the passenger revenue at K. for the preceding year was $4,311.65, and the revenue from freight over five times that amount; and the fact that compliance with the order might require an extra man, and that the train would be delayed from six to nine minutes, is not controlling upon the question of the adequacy of service.</p>

<p>Mortgages — Foreclosure — Sale in Parcels — Power oe Court. Rem. & Bal. Code, §§ 583 and 587, relating to sales of property on execution, and providing that tbe sheriff shall offer the land for sale as an entirety or in parcels as he shall deem the most advantageous, and that when the property consists of several known lots or parcels they shall be sold separately or otherwise as is likely to bring the highest price, or when a portion is claimed by a third person and he requires it sold separately, such portion shall be sold separately, do not abrogate the equitable power of the court to order a sale in parcels, and in the inverse order of alienation, on the foreclosure of a mortgage covering the entire tract, part of which had been conveyed by the mortgagor to a third party, where the equities of the parties will be subserved thereby, and without impairing the security of the mortgagee.</p> <p>Appeal — Review—Error Invited by Appellant. In an action to foreclose a mortgage, error of the court, if any, in refusing to try out the question of priority of title as between defendants to a part of the mortgaged property, claimed under a contract of purchase executed prior to conveyance by the mortgagor of the entire property to the other defendant, cannot be claimed where appellants objected to trying out the question of priority and demanded a decree which would assume their own priority, thereby inviting the error complained of.</p> <p>Appeal — Review — Estoppel to Allege Error — Admissions. Where, in an action to foreclose a mortgage, the question of the priority of title to part of the mortgaged property was in issue between defendants, the appellants are estopped to claim that admissions of counsel relating thereto were inadvertently made by counsel in the course of the trial and not intended to be binding, where the court had asked for a statement of the position they intended to occupy, and later recapitulated what he conceived to have been admitted, stating that his decree would be based thereon, and on appealing to counsel to state whether any dispute existed as to the facts as recited, was told that they were correct.</p> <p>Mortgages — Foreclosure—Sale in Parcels — Priority of Adverse Claims — Admissions. Where mortgagees disclaim any interest in the manner of sale, it is proper, without trying the title, to direct a sale of nine acres of the tract, claimed by one of the defendants under a contract of purchase with the mortgagor prior to the mortgagor’s conveyance of the entire tract to the other defendant; since it was the duty of the court to preserve the status quo of the parties until the question of priority could he litigated, and no injury would result from the sale.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered May 29, 1913, upon findings in favor of an executrix, in the settlement of her- final account, after a hearing upon a contest.</p>

<p>Appeal from a judgment of the superior court for Whitman county, Miller, J., entered June 17, 1913, upon findings in favor of the defendants, in a will contest, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered October 9, 1913, dismissing an action to set aside a tax, after a trial upon an agreed statement of facts.</p>

<p>Waters and Water Courses — Easements—Water Conduit — Construction by Lessee or Disseisor — Separation of Estate. Where a father and son disagreed as to the ownership of a half section of land, occupied by the son as lessee or disseisor, and litigation ensued, but before trial a compromise agreement was made whereby the son was conveyed thirty acres of the land on which the house, barn and orchard were located, reserving to the son the right to purchase any additional part of the land at its market value, but failing to make reservation with reference to a conduit which the son had constructed to convey water from a spring located on the property retained by the father to the dwelling house and other buildings belonging to the son, the conveyance of the thirty acres did not operate as an implied grant of an easement in the use of the conduit, but failure to make reservation in the settlement agreement, with reference to the conduit and the water, operated as a relinquishment of any claim to the enjoyment thereof.</p>

, entered August 14, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through a collision between a vehicle and an automobile.

<p>Discovery — Exhumation of Body — Right to — -Evidence—Sufficiency. The evidence is insufficient to justify an order for the disinterment of the body of a father to determine his alleged impotency, upon an issue in probate proceedings as to the parentage of children, where it appears that more than two years elapsed after the interment before application was made therefor, and that an examination of the body would, in all probability, fail to establish the facts sought thereby.</p> <p>Bastards — Acknowledgment by Parent — -Discovery—Exhumation of Body. Where, in probate proceedings, the question of the parentage of children was in issue, and it was shown that the father, upon obtaining a divorce from his first wife, acknowledged and swore in the presence of a witness that the children in question were born to his first marriage, thereby admitting them to be his children, as provided by Rem. & Bal. Code, § 1345, the court is not justified in ordering disinterment of the father’s body and the appointment of physicians for the purpose of determining his alleged impotence. j</p> <p>Dead Bodies — Burial—Removal. The court will not order the exhumation of a body for the purpose of reburial in another place, its present resting place being selected by the widow of deceased, although he expressed a wish to be buried in another cemetery, and though title to the burial lot was in dispute, the evidence showing that a stepdaughter, the alleged owner of the lot, made no objection to the body resting in its present grave until more than two years after burial, and that the application for removal was a mere pretext for the exhumation of the body to determine the questioned parentage of deceased’s heirs.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Huneke, J., entered May 12, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, by direction of the court, in an action on contract.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered September 25, 1912, dismissing an action on contract, upon granting a nonsuit.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered October 11, 1913, dismissing an action to foreclose a mechanics’ lien, after a trial on the merits to the court.</p>

<p>Counties — Removal of County Seat — Proceedings—Review. The submission of a proposition to change a county seat being a political and not a judicial question, alleged error of the county commissioners in their conclusions as to the sufficiency of the petition because of neglect in rejecting names signed thereto, which were alleged to have been later signed to a second petition for the removal of the county seat to another place, will not be reviewed by the courts, except in case of fraud or arbitrary action, in the absence of statute giving the courts jurisdiction of such matters.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered August 7, 1913, upon findings in favor of the defendants, in a taxpayer’s suit for equitable relief.</p>

<p>Appeal from a judgment of the superior court for Mason county, Mitchell, J., entered November 15, 1913, upon findings in favor of the plaintiff, in an action to cancel a mortgage.</p>

, entered August 25, 1913, upon findings in favor of the plaintiffs, in an action to restrain the assessment of property for a local improvement, after a trial on the merits.

<p>Appeal from a judgment of the superior court for Stevens county, Jackson, J., entered April 9, 1913, upon a trial and conviction of rape.</p>

<p>Arrest — In Civil Actions — Right oe Arrest — Statutes. There being no statute in this state authorizing the arrest of absconding debtors, the provisions of Const., art. 1, § 17, permitting such arrest not being self-executing, a person causing the arrest of another is liable therefor, even though the arrest be in pursuance of an order of court without or in excess of jurisdiction, and it is immaterial that the arrest may have been caused without malice and with probable cause.</p> <p>False Imprisonment ■— Civil Liability — Persons Liable. The vice president and manager of a corporation, who united in a bond for the purpose of enabling the corporation to procure the arrest of a party as an absconding debtor, is liable in damages to such party in an action for false imprisonment.</p> <p>Same — Civil Liability — Judge of Inferior Court — 'Colorable Jurisdiction. A justice of the peace is not liable for the unlawful arrest of a party as an absconding debtor, under an invalid act, upon process issued by him in good faith, and without malice, the case being colorably, though not really, within his jurisdiction.</p> <p>Same — Damages—Mental Anguish — Issues and Instructions. It is not error to instruct, in an action for false imprisonment, that the damages should he compensatory only, that if the jury found that plaintiff has sustained substantial damages, by reason of his imprisonment, they might consider his mental suffering, such as anguish of mind, sense of shame, humiliation, etc., if they should find that they resulted from his imprisonment; and plaintiff’s testimony that he felt his arrest as a disgrace to himself and family,, warranted the jury in inferring that mental anguish and sense of shame were attributes of his sense of disgrace.</p> <p>Costs — Witness Fees — Time for Taxation. A motion to strike a cost bill will be granted as to witness fees not appearing upon the record of the clerk, under Rem. & Bal. Code, § 48-2, where the cost bill was not filed with the clerk for more than ten days after judgment.</p>

<p>Contbacts — Execution'—Evidence — Sufficiency. The evidence sufficiently shows that tbe owner of a building did not agree with a materialman to pay bis account with contractors for material furnished them and used in the building, where he testified that he made no such promise, and he was corroborated by the circumstance that he was protected by a bond, thereby precluding the probability that he would have assumed a responsibility already resting on the contractors and the bonding company.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered November £5, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Courts — Decisions—Stare Decisis — Rule of Property. A construction placed upon the constitution, resulting in the incurring of numerous obligations on the part of municipalities, which a contrary ruling would render invalid, to the loss of innocent parties, will be adhered to as announcing a rule of property.</p> <p>Municipal Corporations — Debts—Limitations — Constitutional Provisions. Where voters authorizing a bonded indebtedness plainly evidenced an intent that the debt so incurred be exclusive of the one and one-half per cent limit authorized by the constitution to be incurred without assent of the voters, and without curtailing the power of the city authorities to incur debts up to that limit, and the bonded indebtedness, while not exceeding the constitutional limit of three and one-half per cent of the assessed value of property within the city at the time the debt was incurred, is now considerably in excess thereof and, together with other debts, incurred by the city without the assent of the voters, constitutes a total indebtedness exceeding the constitutional limit of five per cent of the present assessed value of property within the city, caused by a lower assessed value of property than when the bonded indebtedness was incurred, the city authorities have power to incur indebtedness within the one and one-half per cent limit at any and all times.</p>

<p>Municipal’ Corporations — Officers—Recall—Petitions—Number of Signers — Statutes—Construction. Const., art. 1, §§ 33, 34, prescribing the rule for determining the number of signatures to recall petitions, and providing that the number required for recall of officers of cities of the first class shall be twenty-five per cent of the votes cast “for his said office to which he was elected at the preceding election,” must be construed as meaning the number of votes cast at the next preceding election held for the election of such officer (a councilman), whether the election be the one at which the councilman sought to be recalled was elected or a subsequent election; the words “his office to which he was elected,” being considered as a general designation of the office held by him and his associates, the evident purpose of the provision being to determine the question of recall by the required percentage of present qualified voters.</p> <p>Same — Number of Signers — Time of Piling Petition. Under Const., art. 1, § 33, 34, providing that petitions for the recall of officers of cities of the first class shall contain signatures to the number of twenty-five per cent of the votes cast for all candidates for the office at the next preceding election, the percentage of signatures will be computed upon the vote cast at the election next previous to the time of filing petitions with the city clerk, although formal charges against the officer may have been filed prior to such election.</p> <p>Certiorari — When Lies — Adequacy of Remedy by Appeal. Where a cause has been brought before the supreme court both by writ of certiorari and appeal, counsel, by stipulation, having submitted the cause for final determination, a disposition of the cause on the appeal is the furnishing of a plain, speedy and adequate remedy, and the certiorari proceedings will be dismissed.</p>

<p>[■Syllabus by the Reporter.]</p> <p>Public Lands — Grants — Lieu Land Selections — Unsurveyed Lands — Descriptions—Sufficiency. Under 30 U. S. Stat. at Large, 36, authorizing lieu land selections in place of dona fide claims or patented lands included within the limits of a public forest reservation and relinquished to 'the government, the lands selected, if within the unsurveyed portion of the public domain, must be described by metes and bounds with reference to natural monuments so that they can be identified, and it is not sufficient to describe them by the government subdivisions which it is expected will apply when the government survey is extended.</p> <p>Same — Grants—Unsurveyed Lands — Rights of Settlers — Priority Over Lieu Land Selections. Under 21 U. S. Stat. at Large, 140 making vacant unsurveyed public lands subject to settlement by qualified homesteaders, with preferential rights to file a homestead application upon lands settled upon and to perfect entry thereof when the surveys are extended, a settler’s rights are superior to a prior lieu land selection, where the lieu land applicant failed to describe the lands by metes and bounds, with reference to natural monuments, so that the land could be identified.</p> <p>Same — Lieu Land Selections — Approval—Confirmation—Necessity. The approval of the commissioner of the general land office of lieu land selections does not confer any vested rights in the land, where the approval was not confirmed by the Secretary of the Interior, but the executive department had decided that the approval was without authority or jurisdiction, and included the lands within a forest reserve.</p> <p>Taxation — 'Public Lands — Defective Lieu Land Selections— Vested Rights. Where lieu land selections of unsurveyed lands were defective because of an insufficient description and the approval of the selection was without authority or jurisdiction and conferred no vested rights in the lands, the same are not subject to taxation as the property of the applicants, and a tax lien thereon will be cancelled as a cloud upon the applicants’ right to make lieu land selections under the forest reserve act, the lands having meanwhile been included in a public forest reserve.</p>

, entered September 22, 1913, upon the verdict of a jury rendered in favor of the plaintiff for $8,500, for personal injuries sustained by a pedestrian struck by an automobile.

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered September 22, 1913, upon findings in favor of the defendants, after a trial to the court, in an action to foreclose a mortgage.</p>

, entered October 14, 1913, upon the verdict of a jury rendered in favor of the plaintiif, in an action for false imprisonment.

, entered January 3, 1914, upon findings in favor of the plaintiff, in an action on a promissory note, after a trial to the court.

<p>Appeal — Recoed—Statement oe Pacts — Lost Exhibits — Certificate of Judge. An appeal will not be dismissed for the reason that the exhibits introduced in evidence at the trial are not incorporated in, or attached to, the statement of facts, or on file in the supreme court, where it appears by affidavit that the exhibits have been lost or mislaid and cannot be found, and that no blame attaches to either of the parties to the action or their attorneys, but the trial court will be ordered to supply the exhibits if possible and order a hearing upon notice to determine whether the copies offered are in fact copies of the original exhibits or contain their material substance, and to certify the result of such hearing to the supreme court.</p>

<p>Husband and Wife — -Sepabate Maintenance — Grounds. To maintain an action for separate maintenance, it is necessary for plaintiff to show an abandonment without cause, or facts which in law constitute an abandonment, and that, having the ability so to do, the husband neglected or refused to support her.</p> <p>Divorce — Judgment—Res Judicata — Matters Concluded. A judgment in an action for separate maintenance is res judicata in a subsequent action for divorce on the grounds of nonsupport, cruelty, and abandonment, as to all matters occurring before its rendition, where the judgment dismissing the former action showed that defendant had the ability to support his wife, certain real estate being decreed to be his separate property, and necessarily determined that he had not abandoned the plaintiff, and that she was at fault in living apart from him; since all matters alleged in the divorce action were, or might have been, alleged and litigated in the former action.</p> <p>Judgment — Evidence—Res Judicata. It is competent to prove, in an action for divorce, that the court, upon a former trial of an action by the same plaintiff for separate maintenance, announced before the rendition of judgment, that the evidence clearly showed that plaintiff left her home without cause, the question of abandonment being in issue in the divorce case and the defendant pleading the former judgment as res judicata.</p> <p>Divorce — Judgment—Matters Concluded. Where the cause of action in a suit for separate maintenance is the same as that in a subsequent action for divorce, the conclusive effect of a judgment on the merits in the former action is not affected by the joinder of the husband’s daughter as a party defendant, on the alleged ground that he had conveyed his property to the daughter in order to defraud the plaintiff.</p>

, entered April 18, 1913, upon findings in favor of the plaintiff, in an action for a divorce, after a trial to the court.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered June 20, 1913, upon findings</p> <p>in favor of the plaintiff, after a trial before the court, in an action on contract.</p>

, entered November 15, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for fraud.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered October 9, 1913, in favor of the plaintiff, in an action on a promissory note, after a trial to the court.</p>

<p>Certiorari to review orders of the superior court for Skagit county, Houser, J., entered March 28, 1914, in proceedings to determine benefits to lands within a diking district.</p>

<p>Appeal — Review—New Trial — Grounds. Where the court in granting a new trial orally stated the reasons therefor, but the formal order failed to state the grounds on which it was granted, the court will, on appeal, examine the whole record, and if it discloses any ground warranting the granting of a new trial, the order will be affirmed.</p> <p>Evidence — Parol Evidence — To Vary Writing — Contracts—Time for Performance. A written contract for the removal of rock at a stated price per cubic yard, but specifying no time for removal, thereby implying a reasonable time within which the work should be performed, cannot be varied by evidence of an oral agreement that such time would be allowed as would be required to crush and dispose of the rock by sale at a profit.</p> <p>Evidence ■ — • Parol Evidence • — • Contracts — Contemporaneous Agreement. Although a contract be considered incomplete so as to admit of parol evidence showing a contemporaneous agreement relating thereto, the evidence to be admissible must not be inconsistent with, or repugnant to, the plain intention of the parties as expressed or implied by the written contract.</p> <p>Contracts — Breach—Loss of Profits — Construction. In an action for damages for breach of a contract for the removal of rock from defendant’s premises, under which plaintiff had the admitted right to do as it pleased with the rock removed, damages for loss of profits cannot be recovered without showing that defendant terminated the contract before a reasonable time for ■ removal of the rock, not that the contract was terminated before a reasonable time for crushing and selling the rock at a profit.</p> <p>Evidence — Parol Evidence — Contract—Consideration. Where a contract for the removal of rock at a stated price per cubic yard specified no time for the removal of the rock, a reasonable time being implied for performance, evidence of a contemporaneous oral agreement that plaintiff would be allowed such time as would be required to crush and dispose of the rock by sale at a profit, is not admissible as showing an additional consideration for the contract, since proof of such'consideration would vary or defeat the terms of the written contract.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered November 24, 1913, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for divorce.</p>

<p>Municipal Corporations — Public Improvement — Assessments— Validity — Enactment of General Ordinance. An assessment for a public improvement is not invalid for the reason that the proceedings therefor were initiated prior to the passage of a general ordinance covering the matter of local improvements, since 3 Rem. & Bal. Code, § 7892-1 et seq., covering the subject of public improvements in cities and towns, though general and comprehensive in its terms, and directly conferring power upon the city council or legislative body to order improvements and any and all work to be done thereunder, and levy and collect assessments to pay the cost, does not prohibit a city from proceeding with an improvement without first passing a general ordinance, it appearing that each step in the proceedings prior to the passage of the general ordinance was directed by the city council, either by resolution or ordinance.</p> <p>Same — Engineer's Report — Defects—Waiver—Jurisdiction. Defects in the report of a city engineer upon the initiation of an improvement, in that it failed to show the proportional amount of the cost to be borne by the property, and the lots benefited thereby, as provided by 3 Rem. & Bal. Code, § 7892-10 and the resolution initiating the improvement, are waived by failure to object thereto until hearing upon the assessment roll, and though some of the parties failed to appear in response to the notice and urge objections to the improvement, since the defects were not jurisdictional.</p> <p>Same — Improvements — Contract — Competitive Bids — Use of Patented Article. An assessment for a street improvement is not invalid for the reason that the contract for the improvement involved the use of a patented article, as in violation of 3 Rem. & Bal. Code, § 7892-59, providing that contracts for local improvements shall be let upon competitive bids, where the owner of the patent furnished the city a license agreement in which it was agreed that the patented article would be furnished to the successful bidder, without reservation, which was done, and although the license agreement provided that it should apply only to contracts for 10,000 square yards or more, while the contract in question was but for 6,650 square yards, it appearing that the bidders relied on the license agreement when submitting their bids, and that no objection was raised to that provision of the contract until the filing of objections to confirmation of the assessment roll.</p>

, entered May 23, 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 an automobile.

<p>Pleading — Complaint—Definiteness. In an action to enjoin interference with the bed of a lake, in which the state intervened, claiming ownership, it was proper, on motion therefor, to require the complaint in intervention to be made more specific with reference to the character of the lake, it having failed to allege whether it was navigable or not, even though the state might claim the bed of the lake under either condition, since by failure to allege either condition, there was, in effect, a plea of contradictory facts, violating the code rule that the complaint shall contain a plain and concise statement of facts constituting the cause of action.</p> <p>Waters and Water Courses' — Unnavigable Lakes — Title to Beds. Title to the beds of unnavigable lakes is not, and never has been, in the state, in view of the construction, as applied in prior decisions of Rem. & Bal. Code, § 143, declaring the common law to be the rule of decision in the courts of this state, so far as not inconsistent with the constitution and laws thereof and of the United States, and the enabling act, 25 Stat. at L., p. 681, which in specifying the lands which shall pass to the state upon its admission into the Union, not including, expressly or by implication, unnavigable lakes, but providing “that the state shall not be entitled to any further or other grants of land for any purpose than as expressly provided in this act,” the state recognizing the conditions therein by its disclaimer, in Const., art. 26, of all right and title to the unappropriated public lands within the boundaries of the state, upon its admission to the Union.</p> <p>Waters and Water Courses — Unnavigable Lakes — Diversion— Actions — Rights of State. Although the state holds no title to the bed of unnavigable lakes, it has, by reason of its sovereignty, as between itself and the United States, an interest sufficient to maintain an action against an intruder without title.</p> <p>Navigable Waters — Riparian Rights — Grants — Construction. The effect of a grant of land on the title to adjoining submerged lands will be determined by the law of the state in which the land lies, the United States assuming the position of a private owner subject to the general law of the state, so far as its conveyances are concerned.</p> <p>Waters and Water Courses — Unnavigable Lakes — Title to Beds. The common law (Rem. & Bal. Code, § 143), being the rule of decision in the state as affecting unnavigable waters in streams and lakes, title to the bed of an unnavigable lake is in the patentees of lands bordering thereon, the declaration in Const., art. 21, § 1, that “the use of the waters of the state for irrigation, mining and manufacturing purposes shall be deemed a public use,” never being intended to destroy riparian rights in unnavigable waters; and Laws 1890, p. 706, relating to appropriation of waters for irrigation, and the act of Congress of March 3, 1877, relating to the reclamation of desert lands and the use of water thereon by prior appropriation, containing nothing therein abrogating the common law rule touching littoral and riparian rights in unnavigable waters.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered April 26, 1913, upon findings in favor of the plaintiff, in an action for an accounting, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Holcomb, J., entered June 27, 1913, upon findings in favor of the defendant, in an action on promissory notes, tried to the court.</p>

, entered November 26, 1918, in favor of the defendant, upon withdrawing the case from the jury at the close of plaintiff’s case, in an action for damages to property by reason of obstructions in a street.

<p>Arbitration and Award — Agreement to Arbitrate — Tender— Right to Sue. Where it is stipulated in a contract that all differences between the parties arising out of the contract shall be submitted to a board of arbitrators, whose decision therein shall be final and conclusive, no action can be maintained on the contract until after a tender of arbitration of differences to the other party and a refusal thereof.</p> <p>Arbitration and Award — Contracts—Dispute Between Parties —Duty to Arbitrate — Evidence. Findings that there was no dispute between parties calling for arbitration in such case, is not sustained by the evidence, where there was a clear dispute in the pleadings, and defendant’s officers testified to their faithful performance of the contract and its breach by plaintiff, and plaintiff retaliated by attempting to show defendant’s nonperformance and its termination by such breach, and upon a second cause of action, the defendant offered evidence of the amount due and its nonpayment, while plaintiff offered evidence of breach and sought to counterclaim for damages.</p>

, entered August 26, 1913, upon findings in favor of the defendant, after a trial on the merits before the court, in an action of ejectment.

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered December 5, 1913, upon overruling a demurrer to the complaint, in an action to enjoin the levy of a tax.</p>

Appeal by plaintiff from a judgment of the superior court for King county, Dykeman, J., entered January 3, 1914, upon findings in favor of the plaintiff as against one defendant, in an action on contract, tried to the court.

<p>Sales — Of Goods — When Title Passes — Bona Fide Purchasers. Where the agent of the consignor of lumber presented the bill of lading and invoice to the consignee and requested payment of ninety per cent of purchase price, according to the terms of sale, but left the papers in the consignee’s office upon assurance that the invoice would be checked up and the lumber paid for, the consignee, however, later refusing to pay or surrender the bill of lading, title to the lumber remained in the consignor, and although the consignee transferred the lumber to a 6ona fide purchaser for value and without notice.</p> <p>Same — Transfer of Title — Bill of Lading. In such case, the fact that the consignee was also named in the bill of lading as consignor would not change the rule, since the presumption of ownership arising from a transfer of the bill of lading may be explained or rebutted by evidence showing the real ownership of the goods.</p>

, entered November 4, 1913, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.

, entered September 3, 1914, upon appeals from the decisions of the secretary of state, upon canvassing the returns for the submission of initiative measures at the general election.

, entered May 12, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for false imprisonment.

<p>Trial — Nonsuit—Waiver oe Motion. A motion for nonsuit is waived, where defendants did not stand upon their motion, hut introduced further evidence.</p> <p>Appeal — Review—Harmless Error — Instructions. In an action for damages for negligently permitting a fire, started by a donkey engine, to spread to plaintiff’s sawmill, the giving of an instruction in accordance with Rem. & Bal. Code, § 5284, that it was unlawful during the closed season for any person who shall start a fire in any manner upon forest lands not his own to leave the same unquenched, is not prejudicial error in that the jury were, in effect, told that it would be unlawful to start a fire in any manner and leave it unquenched, even though started without negligence and for a lawful purpose, and though there was no negligence in failing to quench it, where, taken in connection with other instructions, the jury clearly understood that recovery could only he predicated on defendant’s negligence in starting or in failing to quench the fire.</p> <p>New Trial — Grounds—Misconduct op Jury. A new trial will be granted for misconduct of the jury, in an action for damages for negligently permitting a fire started by a donkey engine to spread to plaintiff’s sawmill, where it appears that the jury, after agreeing upon a verdict for plaintiff, hut before arriving at th'e amount of damages to be awarded, read and discussed a pamphlet purporting to contain the forest protection laws of the state, it not being shown that defendants were connected in any- way with the misconduct; since, under Rem. & Bal. Code, §§ 342, 343, the jury are the judges of the facts alone, while it is the duty of the court to decide all questions of law.</p>

, entered September 30, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.

<p>Pleadings — Amendments—Variance or Failure of Proof. Where a complaint is founded on an express contract of sale and the evidence discloses an express contract of consignment, there is an entire failure of proof, and hence the complaint cannot be amended to conform to the proofs, as is permissible in case of a variance.</p> <p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered July 3, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court. Reversed.</p>

Application filed in the supreme court May 28, 1914, for a writ of mandamus to compel the superior court for Grant county, Steiner, J., to proceed with the trial of a cause.

<p>Appeal from a judgment of the superior court for Yakima county, Kauffman, J., entered October 23, 1913, upon findings in favor of the plaintiff, in an action to foreclose a mortgage.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered March 7, 1914, upon findings in favor of the plaintiff, in an action of replevin, tried to the court.</p>

<p>Certiorari to review a judgment of the superior court for Thurs-ton county, Dykeman, J., entered June 15, 1914, adjudging a public use, in condemnation proceedings.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered August 4, 1913, upon findings in favor of the plaintiff, in an action to abate a nuisance, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered April 10, 1913, upon findings in favor of the defendants, confirming an assessment roll for a local improvement, tried to the court.</p>

, entered September 16,1914, in favor of the plaintiff, upon sustaining a demurrer to the answer, in an action to collect a tax.

<p>Appeal from a judgment of the superior court for Pend Oreille county, Jackson, J., entered November 24, 1913, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>