Volume 84 — Washington Reports

<p>Divorce — Decree —> Form ■ — ■ Appeal — Harmless Error. Where plaintiff is granted a divorce on the ground of defendant’s cruelty, plaintiff, on appeal, cannot assign error in also granting the defendant a divorce on the ground of plaintiff’s cruelty; inasmuch as both are necessarily divorced by the decree for plaintiff (Fullerton and Crow, JJ., dissenting).</p> <p>Same — Decree—Division oe Property- — Discretion. Upon granting a divorce to both parties on the ground of cruelty by each and inability to live together, the court has a wide discretion in the division of community property, which will not be set aside because the property awarded to the defendant was somewhat larger than that awarded to the plaintiff, where defendant was in debt and was required to pay plaintiff $30 per month for the support of herself and children, and attorney’s fees.</p> <p>Same — Alimony—Support oe Children — Sueeiciency. An award of $30 a month to support three children, aged 16, 12, and 6 years, will not be set aside as inadequate, where the oldest, a boy, was industrious and had saved $285 from his own earnings, and there was nothing in the record to show that, at present, $30 was not sufficient for the other two.</p>

, entered July 1, 1914, discharging the jury and dismissing an action to abate a public nuisance, after a trial on the merits.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered September 12, 1913, upon the verdict of a jury rendered in favor of the defendant, in an action of interpleader.</p>

<p>Insurance — Fire Insurance — Waiver of Defenses — Acts of Adjusters— Authority — -Statutory Provisions. In the absence of proof of special authority, an adjuster’s investigation after proofs of loss are made, and his demand for duplicate invoices from the insured, do not constitute a waiver of objections or estop the company from defending an action on a fire insurance policy for false swearing in the proofs of loss, in view of 3 Rem. & Bal. Code, § 6059-2, defining an “adjuster” as one who undertakes to ascertain and report the actual loss due to the hazard or peril insured against; since the statute having defined the duties of an adjuster, there could be no presumption of other authority from the fact that he was acting as adjuster.</p> <p>Insurance — Fire Insurance — Policy—Provisions—Waiver. Under a policy of fire insurance providing that the company shall not be held to have waived any provision in the policy by any act relating to the appraisal or examination provided for, the defense of false swearing in making the proofs of loss is not waived by an adjuster’s investigation after proofs of loss are made' or by his demand for duplicate invoices; since the policy contemplates a full and complete investigation as to the property destroyed and its value.</p>

<p>Appeal — Review—Harmless Error — Error Not Affecting Result. Error in instructions to tbe jury is harmless, where the case should have been taken from the consideration of the jury, or no other verdict could be sustained.</p> <p>Municipal Corporations — Streets — Negligent Use — Collision With Street Car — Contributory Negligence — Evidence — Sufficiency. The driver of an automobile was guilty of contributory negligence precluding any recovery, where it appears that, in making a right angle turn, he drove his car upon a street car track directly in front of an approaching street car, which was in plain sight, and was unable to stop in time to avoid a collision; his negligence being the proximate cause of the accident regardless of the speed of the approaching street car.</p>

<p>Waters and Water Courses — What Constitutes' — 'Streams or Surface Water — Evidence—Sueficiency. In an action for damages for tbe obstruction of waters, causing an overflow of adjoining lands, a finding that the same was a water course, and not surface waters, is sustained where it appears that living and flowing waters from a gulch to the east flow or move to the westward in all seasons and under all conditions, spreading out over and crossing plaintiffs low lands by natural gravitation and finding their way into a water course to the west of plaintiffs lands, which were agricultural lands and easily made dry and fit for cultivation by surface ditches converging toward such water course.</p> <p>Same — Spreading Waters. In such a.case, if the same was not a water course within the common definition of the term, it is a water course in the sense that there is a natural gravitation of living, flowing waters which one proprietor cannot arrest to the damage of his neighbor.</p> <p>Same — Swamp Lands. In such a case, the plaintiffs land was not swamp land, but natural soil over which a water course has spread itself, and the owner had a right to direct the waters in surface ditches over his land.</p> <p>Appeal — Review—Harmless Error — Cured by Verdict. In an action for damages to crops and live stock by the obstruction of a stream and overflowing plaintiffs lands, in which the court instructed the jury that the plaintiff could not recover for loss of live stock if acts of the plaintiff concurred to produce the loss, or if the jury was unable to say which cause produced it, and there was ample evidence to sustain the verdict by reference to damage to crops alone, it is a fair inference that the verdict was based on the loss of crops, and error cannot be predicated on the evidence or instructions relating to the live stock.</p>

, entered June 1, 1914, granting a new trial, after 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>Adverse Possession — Claim of Right — Mistaken Belief — Evidence — Sufficiency. Under tbe rule that adverse possession must he under a claim of right for the full statutory period of ten years where there is no color of title even if possession was under a mistake, and that entry and possession under the mistaken belief that it was public land is not hostile or adverse to the owner, the purchaser of a lot in a dedicated plat does not, by adverse possession, acquire title to a strip of adjoining tide lands, about fifty feet wide, extending to the government meander line, which strip was not included in the dedicated plat, a portion of which he occupied with a boat shop and float for eighteen years, where his testimony was to the effect that, at the time of his purchase, he supposed that he was buying “to the water” or to the line of high tide, that his boat shop was above that, and he supposed his ownership to high tide gave him the right to the tide lands (which belong to the government), that he had no knowledge of the meander line, no representations were made, and he made no express claims of title; and when he sold, he described the lot only, and moved off his boat shop and float.</p>

<p>Waters and Water Courses — Pollution—Riparian Rights — Domestic Use. An upper riparian owner, a coal mining company, has no right to use the waters of a stream for washing coal and turn the water back into the stream polluted with foreign substances rendering it unfit for domestic and farm purposes, thereby causing substantial damages to a lower riparian owner entitled to the use of the stream in its natural purity for agricultural and domestic purposes and watering stock.</p> <p>Appeal — Review—Harmless Error — Evidence. Reversible error cannot be claimed in the admission of relevant testimony as to one of the defendant’s acts in polluting a stream, of which there was insufficient evidence to support that item of the complaint, which was practically abandoned; there being no motion made to exclude the evidence, and no requests for instructions thereon.</p>

Application filed in the supreme court December 28, 1914, for a writ of habeas corpus to admit to bail a judgment debtor, held under an order of arrest entered by the superior court of Lewis county, Wright, J., entered September 21, 1914, pending appeal to the supreme court.

<p>Appeal from a judgment of the superior court for Chehalis pounty, Irwin, J., entered March 17, 1914, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered January 2, 1914, upon findings in favor of the plaintiffs, in an action to foreclose labor liens.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered April 2, 1914, upon the verdict of a jury awarding damages in condemnation proceedings.</p>

Application filed in the supreme court January 13, 1915, for a writ of mandamus to compel the state superintendent of public instruction to apportion certain current school funds.

<p>Appeal — Right to Appeal — Interest—Abstract Questions. In an action to foreclose a mortgage, in which the defendant city’s lien for an assessment was held superior, the city has no right to appeal from a decree holding that another assessment lien, held by a third person, in which the city was not interested, was inferior to the mortgage lien, on the theory that it was interested in the abstract question of law involved therein.</p> <p>Appeal — -Proceedings—Abandonment—Second Appeal. The failure to perfect an appeal, or the abandonment thereof by a party •having the right to appeal, does not prevent the party from taking and perfecting a new appeal within the time allowed by law.</p> <p>Appeal — Proceedings—-Time for Appeal — By Coparties — Ineffectual Appeal. A party having no right to appeal, cannot, by an attempted appeal, curtail or limit the ninety days allowed by law for an appeal to a coparty, interested in the real controversy and having a right to appeal; Rem. & Bal. Code, § 1720, requiring co-parties to join in an appeal taken, or give notice of independent appeal within twenty days after an appeal taken, not applying in such a case.</p> <p>Municipal Corporations — Local Improvements — Assessments— Taxation — Lien—Priority. A local assessment to pay for lands condemned for a municipal improvement is levied in tbe exercise of the sovereign power of taxation, and may be made superior to all other liens regardless of time.</p> <p>Same — Assessments—Liens—Priority—Statutes. Rem. & Bal. Code, §§ 7787-7813, providing for local assessments to pay for tbe cost of condemnation proceedings for municipal improvements, upon published notice, and to be enforced by summary sale of tbe property, makes tbe lien for local assessments superior to prior mortgage or contract liens on tbe property, although tbe law contains no express terms so providing; tbe intent being to subject tbe property to tbe lien by a proceeding in rem, regardless of its ownership and of all prior contract liens.</p> <p>Same. Such rule is not affected by tbe fact that tbe general revenue laws and other local assessment statutes in pari materia provide in terms that all mortgage and other private liens shall be superior to tbe lien of tbe general or local assessment liens provided for; since tbe legislative intent is clear to make tbe assessment lien superior.</p>

, entered April 7, 1914, in favor of the defendant, in an action to determine the preference right to purchase tide lands, tried to the court.

<p>Criminal Law — Former Jeopardy — Statutes—Implied Repeal. Rem. & Bal. Code, § 2113, providing that a conviction or acquittal by a judgment upon a verdict shall be a bar to another prosecution for the same offense, notwithstanding a defect in form or substance in the former charge, is hostile to, and therefore impliedly repealed by, the later enactment of Id., § 2316, of the “penal code” providing that no order of dismissal or directed verdict of not guilty . . . on the ground of any defect in such indictment or information shall bar another prosecution for the same offense; even if it is not expressly repealed by Id., § 2304, repealing all acts “in conflict herewith.”</p> <p>Statutes — Titles and Subjects — Sufficiency. The title to the “penal code” (Rem. & Bal. Code, §2253 et seq.), an act “relating to crimes and punishments and the rights and custody of persons accused or convicted of crime,” is broad enough to admit of amendments or implied repeals of sections of the former laws relating to criminal procedure; e. g., to embrace Rem. & Bal. Code, § 2316, providing that no order of dismissal or directed verdict of not guilty . . . on the ground of any defect in such indictment or information shall bar another prosecution for the same offense, thereby impliedly repealing § 2113 in the code of criminal procedure on the same subject.</p> <p>Statutes — Implied Repeals. While repeals by implication are not favored, they are freely admitted where it appears that the legislature intended to cover an entire subject of legislation.</p> <p>Criminal Law — Former Jeopardy — Insufficient Charge. In the absence of statute, there could be no lawful conviction or acquittal upon an information or indictment which was insufficient to state an offense, and hence no plea of former jeopardy thereon.</p> <p>Same — Former Jeopardy — Waiver oe Plea. Where a conviction is set aside on appeal by the accused, he cannot, upon a subsequent charge for the samfe offense, urge the former conviction as a bar or set up the plea of former jeopardy.</p> <p>Criminal Law — Appeal—Reversal—Effect. Upon reversing a conviction for insufficiency of the information, an order directing the dismissal of the cause, instead of remanding the case for further proceedings under Rem. & Bal. Code, § 1749, does not affect the rights of the accused, or prevent his subsequent arrest and trial upon a sufficient information.</p>

, entered March 5, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action to recover premiums due on insurance policies.

, entered July 24, 1914, in favor of the defendant upon the pleadings, dismissing an action to restrain the insurance commissioner from canceling insurance licenses.

<p>Appeal from a judgment of the superior court for Mason county, Claypool, J., entered May 1, 1914, in favor of the plaintiff, in an action for specific performance, tried to the court.</p>

<p>Execution — Sales — Assignment of Certificate — Recitals of Deed. The recital in a sheriff’s deed to the effect that it is issued to the grantee as assignee of the holder of the sheriff’s certificate of sale is not binding upon persons who are not parties to the deed; and it is not evidence that the sheriff was authorized to execute the deed to the assignee, as against the holder of the certificate.</p> <p>Same — Sales — Assignment of Certificate — Sheriff’s Deed— Validity. A sheriff’s deed on execution sale reciting that the certificate of sale has been assigned to the grantee, who was the attorney for the holder of the sheriff’s certificate of sale, an alien at that time absent from the United States, is insufficient to pass the title to the land sold to the attorney or his heirs, where it appeared that the certificate of sale had not been assigned to, and no consideration had been paid by, the attorney, who had evidently taken that step in an effort to protect his client, and had attempted to execute a 99-year lease to the client, and had paid taxes in the client’s name and during his absence for many "years, and had left his client’s lessees in possession of the property.</p> <p>Adverse Possession — Aliens—Color of Title — Sheriff’s Certificate of Sale — Payment of Taxes. A sheriff’s certificate of sale to an alien, coupled with an assignment thereof and a quitclaim deed from the alien to a citizen, on which a sheriff’s deed was issued to the assignee, constitutes a complete chain of title; or at least color of title upon which a complete title is vested by adverse possession and payment of taxes for more than seven years.</p> <p>Aliens' — Title to Real Estate — Right to Question. The right of an alien to hold real estate contrary to the prohibition of art. 2, § 33, of the state constitution can be questioned by the state alone, and where the state fails to move in the matter until after conveyance by the alien to a citizen, the right to raise the question of title is foreclosed.</p>

<p>Sales — Contracts—Construction. Whete a contract partly written on a printed form, for the sale of apples on consignment, provided in the printed part that the consignor agreed to pool his apples with other growers and sell for the pool price and that the factor “shall not sell any fruit for less than the minimum prices as hereinafter stated,” leaving blank columns at the end of the printed form for the number of boxes, variety and minimum prices, which columns were not filled out, but the words were stricken and the space used for writing in an agreement whereby the consignee agreed to sell specified varieties for the pool prices of the factor, “with an advance on the following varieties,” of certain specified sums, the written part fixing the agreement for advances cannot be construed as the “minimum price” mentioned in the printed form, since the latter words were evidently permitted to remain in the form by inadvertence and no minimum price was agreed to; the words “advance” and “minimum price” not being synonymous in any sense; and there being no provision of the contract expressly showing an intention to base the minimum price on the advances specified, there was no ambiguity in the contract.</p> <p>Evidence — Parol Evidence — To Vary Writing. Parol evidence of experts to explain the terms of a contract is inadmissible when the contract is not ambiguous.</p> <p>Contracts ■ — ■ Construction — Ambiguity. In a contract partly written on a printed form, more attention is paid to the written than to the printed part.</p>

<p>Landlord and Tenant — Alterations—Liability of Tenant. Liability for the construction of a fire escape in case of use of premises for assembly purposes, as required by city regulations, falls upon the tenant and not the landlord, where, by the terms of the lease, the premises were let for the special purpose of lodge and club rooms and offices, the lessee was given the premises rent free for at least one and possibly three weeks in order to make, without expense to the landlord, the necessary alterations for which a city permit was granted upon application of the lessee immediately after the lease was executed; and, while the lessor’s consent was necessary, it was further provided that he should not be liable for alterations contracted for by the lessee; since the lessee was chargeable with knowledge of the police regulations governing the use of the building, and accepted the premises in their existing condition unfitted for the purpose. for which they were leased.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered May 23, 1914, upon findings in favor of the defendants, dismissing an action of trespass, tried to the court.</p>

<p>Robbery — Information—Value oe Property — Necessity oe Allegation. The value of the goods taken is not an element of the crime of robbery, and hence need not be alleged, under Rem. & Bal. Code, § 2418, which provides that "robbery is the unlawful taking of personal property from the person of another, ... by means of force or violence of fear of injury.”</p> <p>Criminal Daw — Habitual Criminals — Indictment and Information — Sufficiency. An information charging the accused with being an habitual criminal, under Rem. & Bal. Code, § 2286, need not negative the fact that the previous convictions had not been annulled or set aside, as that is matter of defense; since the statute simply provides that persons previously twice convicted shall be habitual criminals, without reference to any annulment of the previous convictions.</p> <p>Same — Evidence—Previous Convictions. In a prosecution of an habitual criminal, under an information charging him as twice previously convicted of a felony, it is not error to admit evidence of three previous convictions.</p> <p>Same — Evidence—Admissibility of Certified Record. Upon a prosecution for being an habitual criminal, proof of an original conviction of robbery in another state by a certified copy of the record thereof is expressly authorized by Rem. & Bal. Code, § 1254, relating to the proof of records and proceedings of any court of any of the states of the United States.</p>

<p>Descent and Distribution — Collateral Heirs — Children oe Deceased Sister. Inheritance by collateral heirs is confined to “children,” excluding grandchildren of collateral heirs of the deceased, under Rem. & Bal. Code, § 1341, subd. 3, providing that, where there is no issue, nor husband, wife, father nor mother, the estate of an intestate shall descend "in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation,” in view of the fact that the word “children” in laws of descent is not construed to include “grandchildren,” and the fact that this section distinguishes between “issue” and “children,” authorizing inheritance in infinitum only by direct heirs; and this construction is not affected by Id., § 1328, providing for descent to “lineal descendants” in estates devised by will to collateral heirs.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered May 16, 1911, upon a trial and conviction of assault in the second degree.</p>

, entered February 21, 1914, in favor of the plaintiffs upon the pleadings, after withdrawing the case from the jury, in an action upon an account.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered December 8, 1913, dismissing an action for specific performance, tried to the court.</p>

<p>Bailment — Liability of Bailee — Negligence. Upon a bailment of a team of horses for hire, with a driver furnished by the owner, whom the bailee put at other work, the bailee is liable for negligence of his own driver in the handling of the horses.</p> <p>Bailment — Negligence—Burden of Proof — Presumptions. Evidence that horses, hired to a bailee, were in good condition at the time of the bailment, and that one was returned in bad condition and the other not at all, raises a presumption of negligence on the part of the bailee, and shifts the burden of proof, in an action by the owner to recover damages.</p>

, entered October 18, 1913, upon findings in favor of the defendant, dismissing an action of replevin, tried to the court.

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

<p>Divorce — Grounds—Pleading—Sufficiency of Cross-Complaint. A cross-complaint for divorce by a husband sufficiently states the statutory grounds of cruel treatment and personal indignities rendering life burdensome, where it alleges that, for twelve years after marriage, their relations were agreeable; that, upon a voyage by the wife to the Philippines, she made the acquaintance of certain men, and that thereafter her disposition and conduct toward defendant were utterly changed, and instead of love and affection she manifested only hatred and aversion for her husband, denying to him his marital rights and exhibiting a cold-blooded avarice which she had never shown before, and that she was thereafter more susceptible to the blandishments of other men and maintained correspondence with other men of the most improper nature.</p> <p>Evidence — Best and Secondary — Copies of Letters. Properly proved copies of letters are admissible, where the originals were in the possession of the adverse party, and proper foundation had been laid by notice and demand to produce the originals, which the adverse party failed to do; their cogency and weight being for the jury.</p> <p>Divorce — Grounds—Improper Conduct — Evidence — Sufficiency. A decree of divorce in favor of the husband is sustained by evidence in the form of original letters, and copies of letters, where the originals were not produced on demand, written by other men to his wife, tending to show a libidinous disposition toward the wife on the part of such correspondents, and where it appeared that she took pleasure in the society of such men and apparently made no effort to cause the correspondence to cease.</p> <p>Divorce — Defenses—Result op Divorce. Where a wife brings an action for a divorce and fails to prove her case, it is no objection to a divorce in favor of the husband on his cross-complaint, or ground for granting her a divorce, that the grounds for the husband’s divorce cast a stigma upon her name and brand her as a woman of bad moral character; as she instituted the proceedings and must abide by the result.</p> <p>Divorce— Judgment — Property Rights — Division — “Personal Property.” Where an agreement had been made between husband and wife in contemplation of a divorce, that their personal property was to be divided equally between them, a judgment awarding the sum of $500 to the husband was not erroneous as against the wife, where there was $1,248 deposited in bank in the wife’s name at the time of separation agreement, most of which she appropriated; since money is “personal property” in so far as community possessions are concerned.</p>

, entered September 19, 1913, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for wrongful death.

<p>Appeal from an order of the superior court for Eng county, Albertson, J., entered April 6, 1914, in favor of the</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered November 25, 1913, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Divorce — Grounds—Cruelty—Evidence—Sufficiency. A decree of divorce in favor of the wife on the ground of cruel treatment and awarding custody of their child to her, is warranted where the evidence shows that the husband was a man of ungovernable temper and often applied to his wife language and epithets to which no woman ought to be subjected, and though sharply contradictory, tends to show that the husband from the start took a domineering and uncompromising attitude toward his wife, displayed little tact or consideration in his relations toward her, and sometimes threatened physical violence, though never actually inflicting it.</p> <p>Same — Decree — Disposition of Property — Evidence — Sufficiency. An award of one-half of defendant’s real and personal property, on decreeing a divorce in favor of the wife, should he modified so as to give the wife a money judgment for $10,000, and $25 monthly for the support of a minor child, where it appears that the property was the husband’s separate, property and consisted only of unproductive lands in Alaska and the state of Washington, worth about $60,000; that a holding corporation had been formed by him, capitalized at $100,000, for the purpose of handling the same, that two-fifths of the stock had been pledged for advances made, that the property was of speculative value as well as unproductive, could not be divided without loss, and would require careful management to avoid dissipation, and that the best interests of the wife would be subserved by awarding a definite sum in money rather than by an award of one-half of the estate.</p> <p>Same — Decree—Attorney’s Pees. An award of $1,000 attorney’s fees in decreeing a divorce to a wife in a hardly contested action involving some $60,000 worth of property, in which the defendant had interposed a cross-complaint, will be sustained on appeal as reasonable.</p>

, entered April 27,1914, dismissing a prosecution for violation of the act relating to commercial feed stuffs, upon sustaining a demurrer to the information.

<p>Certiorari to review a judgment of the superior court for Cowlitz county, Darch, J., entered September 9, 1914, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff for damages to property from improvements within a diking district.</p>

<p>Appeal from an order of the superior court for King county, Albertson, J., entered February 9, 1914, dismissing an application for a writ of mandate to compel an election for the purpose of disincorporating a town, after a hearing before the court.</p>

<p>Criminal Law — Evidence—Other Crimes. In a prosecution for grand larceny by false pretenses in that accused procured a bill of sale of certain property by giving in exchange a deed to lots he did not own and a check on a bank where he had no funds, evidence that the bill of sale was altered after execution so as to include additional property is inadmissible, under the rule forbidding the admission of evidence of other crimes than the one charged in the information.</p> <p>False Pretenses — Defenses—Mistake — Evidence — Admissibility. In a prosecution for grand larceny by false pretenses in giving a check on a bank where he had no funds, which defendant had claimed was a mistake and had at the time offered to give a check on a bank in which he had a deposit, his bank account book showing a balance in his favor in the latter bank is admissible in evidence for the purpose of showing his claim of good faith in the transaction, and his ability to substitute a good check for the one drawn against no funds.</p>

, entered December 13, 1913, sustaining an order of the industrial insurance commission rejecting a claim for personal injuries sustained by an elevator boy.

<p>Appeal from an order of the superior court for King county, Humphries, J., entered May 23, 1914, in favor of the plaintiff, on the pleadings, in an action on a supersedeas bond.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered July 11, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by reason of a defective sidewalk.</p>

<p>Application filed in the supreme court October 9, 1914, for a writ of mandamus to the state auditor to compel the issuance of a salary warrant for legal services rendered the state board of medical examiners.</p>

, entered April 18, 1913, upon findings in favor of the plaintiffs, in an action to vacate a decree for the partition of real estate and to set aside a sale made thereunder, tried to the court.

Application filed in the supreme court February 23, 1915, for a writ of quo warranto to determine the right to office as members of the board of state land commissioners.

, entered January 5, 1914, denying the claim of a lessee against the receiver of an insolvent for -an amount paid for improvements, after a hearing before the court.

<p>Constitutional Law — Liberty—Due Process — False Imprisonment — Delinquent Children — Unlawful Detention — Liability of Officers. The purpose of the juvenile delinquency act being protection, and not punishment, an officer arresting and detaining a person thought to be a delinquent child, without any complaint being filed or summons issued therefor as required by the act (Rem. & Bal. Code, §1991), is not guilty of false imprisonment, as a matter of law, in that the restraint was without due process of law; but whether the officer acted wrongfully to serve a purpose inconsistent with the purposes of the act would be a question for the jury under proper instructions; in view of the duty of the state to act as parens patriae, and the common law powers of courts of chancery in aid of the statute for the exercise of the state’s guardianship over infants (overruling on rehearing Id., 81 Wash. 668).</p> <p>Infants — Guardianship—Powers of State. The right of the state to exercise guardianship over a child does not depend upon statute.</p> <p>False Imprisonment — Delinquent Children — Parent and Child. Detention of delinquent children, in the nature of parental restraint, is not imprisonment under a criminal statute, and no constitutional right is violated thereby.</p> <p>False Imprisonment — Arrest Without Peocess — Delinquent Child. An officer detaining a delinquent child without complying with the juvenile delinquency act is not liable for false imprisonment if he acts in good faith, in furtherance of the law and for the welfare of the child; but he acts at his peril if he abuses his authority, and is a trespasser at) initio and liable for false imprisonment if he did not act in good faith in furtherance of the law, or if actuated by ulterior purposes.</p> <p>Parker, Ellis, and Main, JJ., dissent.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered April 6, 1914, dismissing an action for personal injuries sustained by pedestrians struck by a taxicab, tried to the court.</p>

<p>Contempt — Newspaper Comment — Pendency of Court Proceedings — Necessity. Where the fish commissioner, cited to appear and testify before the grand jury, for his own protection secured an order of court directing him to appear and testify or show cause why he should not be punished for contempt, to which order he assented, the matter of his giving testimony was fully adjudicated and determined, and no controversy was pending; hence subsequent newspaper comment thereon, prior to the giving of the testimony, which would have been contumacious if an action had been pending at the time of the publication, is not contempt of court.</p> <p>Same — 'Prejudice to Party — Reasonable Doubt. Constructive contempt by newspaper comment on judicial proceedings requires that the matter must have a reasonable tendency to prejudice a party to a pending action, or substantially interfere with the administration of justice; and being quasi criminal, every reasonable doubt must be resolved in favor of the accused.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered January 24, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for slander.</p>

, entered April 27, 1914, in favor of the defendants, upon sustaining a demurrer to the complaint, dismissing an action for equitable relief.

<p>Appeal from’ a judgment of the superior court for King county, Ronald, J., entered March 13, 1914, upon findings in favor of the intervener, in an action of replevin, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered February 18, 1914, upon findings in favor of the defendants, in an action to enjoin interference with the operation and landing of plaintiff’s boats, tried to the court.</p>

, entered July 6, 1914, in favor of the plaintiff, upon dismissing defendant’s cross-complaint, in an action for equitable relief, tried to the court.

<p>Prohibition — To Courts — When Lies — Adequacy oe Appeal. After sale to the plaintiff, confirmation thereof, and expiration of the year for redemption, prohibition lies to prevent the vacation of a decree of foreclosure, sought on the ground that the decree was void for want of personal service of the summons and complaint; since there is no adequate remedy by appeal, inasmuch as, on a retrial of the foreclosure proceeding, the question of the validity of the order setting aside the decree could not be raised, and there is no appeal from an order vacating a judgment.</p> <p>Process — Service—Substituted Service — “At House” — Statutes. A valid service of a summons and complaint is made upon a wife, in a matter affecting community property, by delivering a copy thereof for her to her husband, upon the community premises, and within thirty feet of the dwelling house, upon being informed by the husband that she was not at home; in view of Rem. & Bal. Code, § 226, authorizing such service by leaving a copy “at the house” of her usual abode, with a person of suitable age and discretion then resident therein.</p> <p>Judgments — Vacation—Limitations. Proceedings to vacate a judgment by motion or by petition, under Rem. & Bal. Code, §§ 303, 464-466, are limited to one year after entry of the judgment, unless the judgment is void on its face for want of jurisdiction.</p> <p>Same — Vacation—Jurisdiction—Defect in Service. A judgment is not void on its face, so that it may be attacked at any time, where the alleged defect in service of process does not appear in the record, and a showing outside the record is necessary.</p> <p>Judgments — By Default — -Vacation. A default judgment cannot be vacated on petition, unless facts are alleged constituting a good defense to the action, as required by Rem. & Bal. Code, § 467.</p>

<p>Trusts — Express Trusts — Contract—Construction. An agreement whereby a husband deeded a one-half community interest to his wife in consideration of which she agreed to execute a will to protect the husband “for one-half interest in all real estate . . . or money she may die possessed of,” does not charge the land with an express trust; but leaves her free to dispose of it in any manner, and only affects property of which she may be possessed at the time of her death.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered June 16, 1914, upon, the verdict of a jury awarding damages in condemnation proceedings.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered December 29, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered July 17, 1914, upon findings in favor of the defendant, in an action to determine the title to property held under levy of execution, tried to the court.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered October 20, 1913, upon sustaining a demurrer to the complaint, dismissing an action for contribution.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered October 24, 1913, upon a trial and conviction of placing a female in a house of prostitution.</p>

<p>Appeal from a judgment of the superior court for Benton county, Kauffman, J., entered November £9, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a promissory note.</p>

<p>Judgment — Consent to Entry — Validity—Waiver of Proof — Review. Judgments by consent are valid as between the parties, dispensing with the necessity of proof of the complaint, and, in the absence of fraud or mistake, are not reviewable on appeal.</p> <p>Pleading —' Answer to Amended Complaint • — • Striking Matters Previously Waived. Where the defendant in an action of replevin for two motor cars waived his counterclaim as to damages for one of the cars, and agreed to judgment in favor of plaintiff for the possession of such car, he could not, in an answer to an amended complaint for the replevin of the other car, interpose a counterclaim for the damages so waived.</p> <p>Judgment — Distinct Judgments in'Same Case — Separable Subject-Matter — Appeal and Error — Harmless Error. Where there are separable causes of action set up in an action, the entry of judgment by consent as to one cause and continuance as to the other is not prejudicial error, and nothing more than an irregularity when the court has jurisdiction of parties and subject-matter.</p> <p>Appeal and Error — Notice of Appeal — Sufficiency. Where there were two judgments in one action, and appeal was taken from but one, without mentioning the other in the notice, the latter cannot be considered on appeal, in view of Rem. & Bal. Code, § 1719, which provides that the notice shall designate with reasonable certainty from what judgment or orders, whether one or more, the appeal is taken.</p> <p>Judgment — Res Judicata — Replevin. In an action to replevin two motor cars, where the parties stipulate in open court that judgment may be entered for the possession of one car and the cause continued as to the other car, and no appeal is taken from the judgment by consent or from an order refusing to vacate same, the judgment is res judicata as to all matters relating to the car involved in the consent judgment.</p> <p>Sales — Conditional Sales — Actions — Defenses — Default— Waiver. In an action of replevin for two motor vehicles, conditionally sold and in possession of a vendee in default, the defense of waiver of prompt payment on one car, is properly withdrawn from the jury, where the waiver was in consideration of prompt payment of sums due upon the other car, which payments had not been promptly paid.</p> <p>Evidence — Parol—Written Contract — Contemporaneous Agreement. Where a conditional sales contract for a motor vehicle without warranty provided that “this contract contains all of the agreements between the parties,” evidence of a parol contemporaneous warranty is inadmissible.</p> <p>Replevin-^Proof of Value — Sufficiency. In replevin for property conditionally sold, proof of the amount due under the contract is sufficient proof of the value of the property to uphold a money judgment therefor.</p> <p>Replevin — Value of Property — Statement in Affidavit. In an action of replevin, the value stated in the affidavit should be taken as the true value at the time of taking, where the defense presents no evidence of a different value.</p>

<p>Taxation — Assessments — Double Taxation — Actions — Conditions Precedent — Payment of Tax. While relief in equity against double taxation is not available unless the payment of one tax is shown, the tax receipts for taxes assessed against certain real estate for specified years shows the payment of one tax on the land including the improvements thereon; under the assumption that the assessor performed his duty of including the improvements as required by Rem. & Bal. Code, § 9102.</p> <p>Same — Improvements—Logging Road — Double Taxation — Reassessment of Omitted Property — Valuation by Assessor — Conclusiveness. A logging railroad not used as a common carrier, and not occupying any separate and distinct right of way outside of the land upon which it was used for logging purposes, constitutes either real estate or improvements on real estate; and an assessment of the real estate is presumed to include the logging road, on the theory that the assessor has done his duty, under Rem. & Bal. Code, § 9102, requiring him in assessing real property to include “the value of all improvements and structures thereon;” hence, after payment of such real estate tax, the subsequent assessment of the logging road (as property omitted from taxation) will be cancelled as double taxation.</p> <p>Taxation — Assessments—Valuations —Review. The assessor’s valuation for the purpose of taxation will not be disturbed in the absence of evidence to show fraudulent, arbitrary or capricious action.</p>

Application filed in the supreme court August 12, 1914, for a writ of mandamus to compel the superior court for King county, Frater, J., et al., to appoint an official court reporter.

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered July 1,1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered February 25, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for fraud.</p>

, entered June 2, 1914, upon granting a nonsuit, dismissing an action for malicious prosecution, tried to the court and a jury.

<p>Witnesses — Competency—Divorced Spouses. Under Rem. & Bal. Code, § 1214, providing that neither spouse shall be a witness for or against the other without the latter’s consent, “nor shall either, during marriage or afterwards, without the consent of the other, be examined as to any communication made hy one to the other during marriage,” a divorced wife is a competent witness against her former husband as to acts and facts occurring during the marriage relation, when her testimony does not involve communications made by him to her arising from the confidence induced by such relation; hence a wife, after divorce, may testify as to facts corroborating a charge of rape committed by the former husband on his stepdaughter.</p>

, entered May 20, 1914, denying motions to cancel and withdraw preference privileges to purchase shore lands and to dismiss appeals from orders of the board of state land commissioners relating thereto.

<p>Judgment — Res Judicata — Questions Concluded. An action for the recovery of damages resulting from the breach of a contract relating to the financing and control of a corporation is barred by the judgment of dismissal “with prejudice” in a former action involving the same parties and subject-matter, wherein it was sought to compel an accounting for moneys advanced by some of the parties for the purpose of acquiring an interest in the corporation.</p> <p>Same. The fact that plaintiff in the second suit was joined as a defendant in the first suit, along with his present adversary, for the reason that he refused to join as plaintiff, would not affect the efficacy of judgment in the prior equitable suit as res judicata, since his rights adverse to the present defendants could have been as fully adjusted therein in his capacity as defendant as if he had.been one of the plaintiffs.</p> <p>Same. The fact that plaintiff has introduced in his complaint the element of fraud of the principal defendant in bringing about a settlement following the prior suit, is not the injection of a new issue, but merely the anticipation of a defense which might be made against the claims of plaintiff, and hence cannot be considered as affecting the res adjudicata of the judgment in the former suit involving the violation by the principal defendants of the original contract between all the parties.</p> <p>Judgment — Disposition op Case. A judgment of dismissal with, prejudice is sufficiently certain to form a bar to a subsequent action involving the same parties and issues, as it in effect determined that the defendant was not accountable to the adverse parties therein.</p> <p>Judgment — Conclusiveness — Pabties Concluded. The fact that the plaintiff in the second suit did not file an answer or cross-complaint in the former action would not change the force and effect of a judgment of dismissal with prejudice therein, where it appears from the record that he'was informed of the allegations of the complaint and consented to the rendering of a judgment with prejudice upon the issues tendered.</p>

<p>Taxation — Railroads—Valuation op Property — Intangible Elements. The intangible value inhering to railroad operating property, arising from density of traffic and volume of business along the line, the nature of the country through which the line runs, the facilities for transacting railroad business owned and operated by private individuals, the price of its fuel supply, the resources of the country adjacent to the line, and the density of the population living contiguous thereto, is not the same as the personal element of “good-will” which attaches to business concerns counducted by private parties, but these elements add to the value of the property the same as locality may give enhanced value to real estate.</p> <p>Taxation — Railroads—Valuation — Elements — Intangible Interests — Assessments—Uniformity—Statutes. Under Rem. & Bal. Code, §§ 9141 and 9148, providing that the state board of tax commissioners, in valuing, for the purposes of assessment, all the operating and other real and personal property of a railroad company, shall consider the value of the entire system and of the part within the state, together with such facts as will enable a substantially correct determination of its assessment value to be had, subject to revision by the state board of equalization, and under 3 Id., § 8626-92, providing that, when the public service commission shall have valued the property of any company, nothing less than the market value as found shall be taken as the true value of property used for public convenience for the purposes of taxation, the assessing officers, after determining the cost of reproduction of a railroad’s property to be $109,267,908, and the actual cash market value to be $98,016,646, may further take into consideration the density of traffic and volume of business along the company’s lines in this state, the nature of the country through which it runs, its facilities for transacting railroad business owned and operated by private individuals, such as warehouses and docks, the price at which it purchases its fuel supply by reason of the location of coal mines, and the resources and development and population of the adjacent country, and having determined the value of such elements to be $12,291,805, may add the same to the previously found valuation; and such action is not unauthorized or discriminatory as an assessment of the company’s “good-will,” not assessed against other concerns, nor would it be the application of an unlawful measure of value by a different standard than that applied, by the county assessors to the property of other concerns; since it includes, rather, that intangible element which enters into and enhances the value of real property by reason of its location, its peculiar adaptability to particular uses, inseparable from the physical property itself, and constituting a substantial portion of the value of the operating property and of the road as a whole.</p> <p>Taxation — Assessment—Method—Change in Law. Where all the valuations for the assessment of property for the current year were completed in May, on the standard of the “market value” of the property, a change of the law going into effect in June, requiring property to he assessed on the basis of one-half of its value, does not affect the assessment for the current year, or authorize the board of equalization, at its sessions subsequent to the going into effect of the new law, to deviate from the standard of valuation in effect at the time the assessments were made.</p> <p>Taxation — Constitutional Provisions — Equality and Uniformity — Due Process. The assessment of railroad property as an organized entity, including certain elements of intangible value inhering therein, while the general mass of business property has been assessed on the basis of the value of each parcel of real and item of personal property separately considered, is not a violation of the rule of uniformity required by art. 7 of the state constitution; nor is it in violation of art. 14 of amendments to the Federal constitution as to due process and equal protection of the laws.</p> <p>Same. The assessment of railway operating property as a unit by the state board of tax commissioners instead of by the county assessors as other property is assessed under the general revenue laws, does not violate art. 7, § 3, of the state constitution that taxes on corporation property shall be assessed and levied as near as may be by the same methods employed for individual property, so long as corporate property is charged the same rate of levy and its assessed value measured by the same standard as other property within the state.</p> <p>Taxation — Assessment—Excessive Valuation. In the absence of a showing of actual fraud on the part of the taxing officers, courts ought not to interfere with an assessment charged as being excessive, where the difference between the assessed value and the alleged actual value is less than ten per cent.</p>

<p>Municipal Corporations — Improvements—Contractor’s Bonds— Notice op Claim- — Sufficiency. A notice of claim against a city contractor’s bond, for supplies furnished to the contractor, which mentions three improvement districts in which the contractor gave separate bonds to secure the performance of distinct contracts, pursuant to Rem. & Bal. Code, §§ 1159-1161, is so vague and indefinite as to be insufficient to support a cause of action where it fails to segregate the value of the supplies furnished on account of any district, and does not specify the bond against which the claim is filed.</p>

<p>Physicians and Surgeons — Negligence — What Constitutes. Where there is more than one method of treating a fractured bone, the attending surgeon is not liable for an honest mistake of judgment in selecting a method recognized as proper by a respectable minority of the medical profession.</p> <p>Physicians and Surgeons — -Malpractice—Actions — Evidence — • Sufficiency. In an action to recover damages for malpractice in the treatment of a broken leg, on the ground of resulting infection to the limb, the evidence is insufficient to sustain a recovery, where it appears that the surgeon adopted the Lane, or plate, method for uniting the fracture and that the bone united properly, leaving the leg straight and of normal length; that infection set in, requiring prolonged treatment and the calling in of another physician to eradicate it; that infection may occur in any surgical case though carefully guarded against; but there was no evidence that the infection was caused by the method of setting the leg, or that every precaution looking to the prevention of infection was not exercised at the hospital where the leg was set.</p>

, entered March 13, 1914, upon findings in favor of the defendant, granting an application for the appointment of an administrator of partnership property.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered February 24, 1914, upon findings in favor of the plaintiff, in an action on contract.</p>

Wright, J., entered April 20, 1914, upon findings in favor of the defendants, setting aside an assessment for a public improvement, on appeal by property owners from the confirmation of the assessment roll.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered September 10, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee assisting in installing an electric motor.</p>

, entered November 11, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for services rendered by a physician.

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered April 6, 1914, upon a trial and conviction of placing a female in a house of prostitution.</p>

, entered September 20, 1913, upon findings in favor of the defendant, in an action to foreclose a mortgage, tried to the court.

<p>Embezzlement — Misappropriation by Agent — Defenses. Upon conviction of an agent of larceny by embezzlement under Rem. & ' Bal. Code, § 2601, upon evidence of the accused that he was intrusted with money to make a payment upon the purchase of a farm, with the express agreement that he was to have no compensation for his services, and that he paid only part of the money, appropriating the balance to his own use, the accused can claim no defense under Rem. & Bal. Code, § 2602, providing that “it shall not be larceny for any bailee, factor, pledgee, servant, attorney or agent ... to retain his reasonable collection fee or charges;” the reasonable value of his services being wholly immaterial.</p> <p>Same — Defenses—Instructions. In such a case, an instruction is as favorable to the accused as his own evidence warranted, where the jury were told that it is a sufficient defense that the money was withheld or appropriated openly and avowedly, under a claim of right, proffered in good faith, honestly believing that he was legally entitled to it as his own.</p>

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered December 13, 1913, directing the discontinuance of alimony awarded by a decree of divorce, after a hearing before the court.</p>

<p>Corporations — Foreign Corporations — Doing Business in State —Evidence—Sufficiency. Where a foreign mercantile corporation, being a creditor, purchased a bankrupt stock of goods from the trustee in bankruptcy and conducted the business of selling it off at retail through its sales agents, adding other goods to the stock from time to time, it was a foreign corporation doing business in this state; and it cannot be claimed that the goods were merely delivered to the retail agents for sale on consignment,- where their only authority was to sell at retail and deposit the proceeds and the corporation financed the business, retained absolute control of the goods, and made no bill of sale or instrument to secure the alleged purchase price.</p> <p>Same — Foreign Corporations — -Process—Service — President as Agent. Service of a summons on the president of a foreign corporation doing business in this state, while he was temporarily in the state looking after its interests, is authorized by Rem. & Bal. Code, § 226, subd. 9, providing that, in case of foreign corporations, service of summons may be made by delivery to “any agent, cashier or secretary thereof”; since the president was “an agent” of the corporation.</p> <p>Principal and Agent — Scope of Apparent Authority — Store Manager. A sale of goods to the manager of a retail store for the purpose of replenishing its stock, is within the apparent scope of his authority; and where the retail store was hut the alter ego of the defendant and its agent to dispose of the stock, the seller was justified in charging the account to defendant upon the manager’s request.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered May 2, 1914, appointing a receiver for partnership property, after a hearing before the court.</p>

, entered February 5, 1914, upon findings in favor of the plaintiff, in an action on a subscription contract, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered February 14, 1914, upon granting a nonsuit, dismissing an action of tort, after a trial before the court and a jury.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered May 16, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action to establish a lost deed.</p>

, entered April 11, 1914, upon findings in favor of the plaintiffs, in an action to foreclose mechanics’ liens, tried to the' court.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered May £5, 1914, in favor of the plaintiff, in an action to enjoin the execution of a contract for a public improvement, tried to the court.</p>

Application filed in the supreme court February 8, 1915, for a writ of certiorari to review proceedings of the superior court for King county, Mitchell, J.

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered January 18, 1915, upon sustaining a demurrer to the complaint, in an action to enjoin the issuance of bonds for a public improvement, after a trial to the court.</p>

<p>Master and Servant — Relation — Independent Contractors— Counties — Liability to Third Persons — Complaint. Under the rule that the principal is liable for the acts of an independent contractor, when the character of the work is inherently and intrinsically dangerous, a complaint by a railway company against a county states a cause of action when it alleges that the county let a contract for the construction of a state road knowing that it was inherently dangerous and would result in damaging plaintiff’s right of way, tracks and telegraph wires adjacent thereto, and in endangering the operation of the trains; that the contractor, under plans and specifications given by the county, used explosives for the purpose of removing stones and stumps, throwing stones, stumps, etc., across the right of way, railway tracks and telegraph wires; and that he felled trees in such a negligent manner as to allow them to fall onto and across the right of way, railway tracks and telegraph wires of plaintiff; the methods employed being contemplated, and sanctioned, and acquiesced in by the county, which at all times had knowledge of the methods whereby the contract was being completed, and at all times during the construction of said highway controlled the manner of doing the work.</p>

<p>Evidence — Demonstrative Evidence — Admissibility—Discretion of Court. In an action for installments due on the price of an electric piano, in which there was a counterclaim seeking rescission of the contract on the ground of false and fraudulent representations in its procurement, it was not error to permit the presence of the piano, nor of a new piano action, in the court room for the purpose of illustrating expert evidence as to its condition, showing wear to pedals, keys, hammers, and internal mechanism, where there was testimony showing the character and extent of the use of the instrument between the date of purchase and time of trial.</p> <p>Evidence — Parol Evidence — Fraud. In an action to recover the price of an instrument sold under a written contract, to which a counterclaim setting up fraud in the procurement of the contract had been interposed, parol evidence is admissible for the purpose of showing the fraudulent inducement, and it is not open to the objection that it is evidence of verbal representations tending to vary the terms of a written instrument.</p> <p>Appeal and Error — Questions Reviewable — Instructions. Error cannot be assigned upon instructions to a jury, where the action was of equitable cognizance and the court took the verdict as merely advisory and made complete findings on which it based its decree.</p> <p>Appeal and Error — Findings—Conclusiveness. The findings of the trial court will not be set aside on trial de novo in the supreme court, when they are sustained by a decided preponderance of the evidence.</p> <p>Sales — Contracts — Rescission by Buyer — Acts Constituting. A finding that defendant rescinded a contract for the purchase of an electric piano is sustained by the evidence, although there was no formal rescission by a return of the instrument, when it appears that this was due to promises of plaintiffs to put the instrument in good condition, and also to subsequent negotiations looking to an exchange for another instrument; that, from the time of its first delivery, defendant insisted that the instrument did not comply with the representations which induced the contract, and refused to make additional payments on that ground, which in itself was sufficient to constitute notice of rescission.</p> <p>Sales — Rescission—'Waiver. Delay in formal rescission, induced hy promises of the vendor of an instrument to make it work properly, is not a waiver of the right to rescind.</p> <p>Judgment — Parties — Assignee eor Collection — Personal Judgment. The entering of judgment, on rescission of a contract, against an assignee for collection is not error, where the only personal judgment entered against him was for the costs of the action.</p> <p>Judgment — Persons Not Parties — Real Party in Interest. A judgment against one not named as a party to the action is not erroneous, where the court finds that the plaintiff was an assignee merely for collection; that the party against whom judgment was rendered was the real party in interest; that it was represented in the action by its agents who were paid hy it; and that it actually participated in the trial, though not a nominal party; since one not a technical party is hound hy the decree if he be interested in the subject-matter of litigation and has exercised the right to participate.</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>

, 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 tbe superior court for Kitsap county, French, X, entered October 18, 1913, upon tbe verdict of a jury rendered in favor of tbe plaintiff, in an action in tort.</p>

Application filed in tbe supreme court December 14, 1914, for a writ of mandamus to compel the state superintendent of public instruction to apportion certain current school funds.

Cross-appeals from a judgment of the superior court for Thurston county, Claypool, J., entered April 16, 1914, in favor of the plaintiffs, in an action for equitable relief, tried to the court.

, entered January 3, 1914, upon findings in favor of the defendant, in an action by a third person to establish title to property held under attachment, tried to the court.

<p>Appeal from a judgment of the superior court for Thurston county, Claypool, X, entered October 1, 1914, dismissing an action to recover taxes paid under protest, upon sustaining a demurrer to the complaint.</p>