Volume 85 — Washington Reports

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered December 9, 1913, in favor of the defendants, in an action to enjoin a public improvement, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered February 20, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in unloading lumber from a steamship.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered April 25, 1914, upon findings in favor of the plaintiffs, in an action for rescission, tried to the court.</p>

, entered February 16, 1914, dismissing an action to set aside a conveyance and subject the property to the lien of a judgment.

<p>Appeal and Error — Presumptions—Instructions — Correctness. Where no question was raised as to the court’s instructions, it will be assumed on appeal that, if the cause was one for the jury on the evidence, the instructions correctly stated the law and all of the law applicable.</p> <p>Negligence — Contributory Negligence. When the defendant’s negligence is the proximate cause of the injury for which action is brought, while that of plaintiff is only a mere condition and not an efficient cause of the injury, plaintiff’s contributory negligence would not defeat recovery.</p> <p>Municipal Corporations — Use op Streets — Collisions—Contributory Negligence — Question por Jury. Whether an automobile colliding with a pedestrian on a street crossing without sounding a warning, was making noise sufficient to advise of its approach, and whether the average person accustomed to the usual street noises could have consciously heard and heeded the noise of the moving machine, are questions for the jury, where the evidence was conflicting on the point that considerable noise was made by the automobile as it approached the crossing where it ran over the pedes trian.</p> <p>Municipal Corporations — Injuries to Pedestrian — Contributory Negligence — Right op Way. A pedestrian, struck down by an automobile upon a street crossing where, by ordinance, she had the superior right of way, cannot be said, as a matter of law, to have been guilty of contributory negligence in not continuously observing the approach of the automobile, which she perceived a block away and thereafter paid no attention to it when she started to cross a well-lighted street, where her view was not obstructed by the presence of other vehicles, she having a right to assume that the driver would approach at a lawful rate of speed, that he would sound some signal of his approach, that he would observe the city ordinance and state statute as to speed at street crossings prohibiting a speed in excess of four miles an hour when any person was on the crossing, and that he would heed the pedestrian’s superior right on the crossing by changing his course or actually stopping.</p>

, entered August 15, 1914, dismissing an action to compel the enforcement of an order of the public service commission requiring physical connection between the lines of telephone companies, after a trial before the court.

<p>Libel and Slander — Privilege—Judges. A judge of a court is absolutely exempt from liability in damages for words' of a slanderous nature spoken by bim of one of tbe attorneys in tbe course of a judicial proceeding over wbicb be was presiding.</p>

, entered February 10, 1914, upon findings in favor of the plaintiff, in an action to foreclose a chattel mortgage, tried to the court.

<p>Municipal Corporations — City Wharf — Personal Injury — Question for Jury — Negligence. Whether a city was negligent in maintaining a wharf made up of two floats placed end to end, about one and one-half feet apart, with an apron or platform connecting the two floats, leaving an open space, which in the nighttime was not readily observable by reason of the shadow of a pile thrown upon it, presents a question for the jury, where a ferryman, who had never before been upon the wharf, but knew the general manner of its construction, fell into the open space thus cast in shadow.</p> <p>Same —■ Contributory Negligence • — • Forgetfulness of Hidden Danger. The fact that the person injured had knowledge of the manner of construction of the wharf would not as a matter of law constitute contributory negligence, when the danger was so hidden as not of itself to be a reminder of its existence to one coming within its presence.</p> <p>Same — Who are Trespassers. The fact that a ferryman operating a launch for hire had not paid the wharfage license required by the city would not render him a trespasser in the use of a wharf at which he landed, to the extent of depriving him of the right of protection against personal injuries received through the city’s negligence in maintaining the wharf in a dangerous condition.</p> <p>Appeal and Error — Preservation of Grounds — Necessity of Exceptions. Alleged error in the giving of instructions will not be reviewed on appeal where exceptions to such instructions are not presented by the statement of facts or bill of exceptions.</p> <p>Same — Preservation of Grounds :— Exceptions — Instructions. Errors assigned in the giving of instructions will not be considered on appeal where the purported exceptions refer to instructions by number only, and there are no numbered instructions in the record.</p> <p>Appeal — Harmless Error — Requested Instructions. Refusal to give requested instructions is not prejudicial error when they were given in substance in other instructions, in so far as the facts of the case call for instructions upon the matters requested.</p>

<p>Schools and School Distkicts — Teachebs—Right to Compensation. Where one employed as superintendent of schools was not entitled to the office because there was no vacancy, but at the same time entered into a regular teacher’s contract with the majority of the board to teach in the schools of the district, he is entitled to the contract price for services actually performed by him under the contract as a teacher.</p>

<p>Certiorari to review an order of the superior court for Spokane county, Blake, J., entered March 2, 1915, requiring the payment of temporary maintenance and suit money pending an action for separate maintenance.</p>

<p>Bills and Notes — Bona Fide Pubchaseks — Defenses Available— Theft Befobe Deliveby. A holder in due course of commercial paper may recover thereon, although the instrument was originally stolen from the maker thereof; in view of Rem. & Bal. Code, § 3407, which provides that where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed; this, under the maxim that, where one of two innocent persons must suffer by the wrong of another, he whose act made the loss possible must suffer.</p> <p>Bills and Notes — Actions—Questions fob Juby. In an action upon a promissory note, a directed verdict for plaintiff was proper, where she testified that she had paid value for the note without notice of any kind that defendant disputed his liability thereon, which testimony was corroborated by circumstances surrounding the transaction and by other witnesses; and there was no offer to combat plaintiff’s evidence that she was a holder in good faith.</p>

<p>Exchange of Property- — -Validity—Fraudulent Representations —Materiality. Plaintiffs are entitled to rescission of a contract and cancellation of a deed given in exchange for a hotel lease and furniture, on the ground of false and fraudulent representations, where the defendants represented to plaintiffs that the hotel had a good patronage and was a money maker, making a profit of from $200 to $450 per month, according to the college season, whereas the hotel had been a losing proposition at all times, and further represented that the furniture was clear of incumbrances, when in fact it was subject to a chattel mortgage for $750, upon which fraudulent representations plaintiffs relied in making the exchange.</p> <p>Exchange of Property — Rescission—Time. A delay of three months in claiming rescission of a contract for the purchase of a hotel would not constitute a waiver of the right, where the party seeking rescission had merely waited until the falsity of the representation that the larger part of the profits of the hotel would be realized during the college year had been fully demonstrated; since the fact that the purchasers had examined the hotel in advance would not be sufficient in itself to put them upon notice as to the constancy of its business or the ordinary receipts, such matters being within the knowledge of the vendors only, upon whose representations the purchasers would be justified in relying.</p> <p>Sales — Fraud—Falsity—Incumbrance. A representation by a vendor of hotel furniture that there was no incumbrance on it would be fraudulent as to the purchaser, when in fact there was an existing chattel mortgage thereon, even if, under the advice of his attorney, the vendor did not deem the mortgage a valid lien.</p>

<p>Sales — Liability op Buyer — Wheat in Warehouse. Where a warehouseman accepted wheat, making advances and giving a warehouse receipt therefor, under an agreement that sale was to be made on a future day when the grower should be satisfied with the market, and a grain company repaid the advances made on the wheat by the warehouseman, on his draft therefor accompanied by the indorsed warehouse receipt, and shipments from this wheat were made on the orders of the grain company, the grain company cannot claim that the money advanced was a loan and not an advancement on the future sale as per agreement, and hence would be liable to the seller for the market price on the day set by him for the sale, regardless of the fact that there was not enough wheat in the warehouse at that time to cover the amount called for by the warehouse receipt.</p>

<p>Appeal — Decision — Law of the Case. Where an action for wrongful death was reversed on appeal merely on the ground of failure to segregate the damages accruing to various beneficiaries and an inadequate instruction on the measure of damages, on a second appeal on substantially the same evidence, issues as to the primary negligence of defendant and the contributory negligence of deceased upheld on the first appeal are foreclosed.</p> <p>Appeal — Exceptions—Necessity—Instructions. In the absence of exceptions to the giving or refusal of instructions, it must he assumed on appeal that those given correctly stated the applicable law, and all of it.</p> <p>Death — Statutes—New Cause of Action — Amount of Recovery. The Federal employers’ liability act must be construed, like the statute giving a right of action for wrongful death, as granting a new and independent cause of action for the benefit of the dependent relatives named in the statute, and the damages recoverable are limited to the financial loss sustained by their being deprived of a reasonable expectation of pecuniary benefit by the wrongful death.</p> <p>Death — Abandonment of Wife and Child — Effect. The abandonment of a wife and child by the husband and father, with the intention of not supporting them, his ability to do so being shown, would not deprive them of a right to recover for his wrongful death, under the provisions of the Federal employers’ liability act, since there was a legal duty on deceased’s part to furnish assistance and support to his wife and child, and the fact of abandonment would he material only in mitigation of damages.</p> <p>Appeal — Review—Verdict—Conclusiveness. Where the evidence was conflicting, the supreme court on appeal will not set aside the verdict of the jury, especially after the refusal of the court who heard the evidence to grant a new trial thereon.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, Erench, J., entered April 4, 1914, upon findings in favor of the plaintiffs, in an action to quiet title, tried to the court.</p>

, entered December 6, 1913, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for personal injuries sustained by a pedestrian struck by an automobile.

<p>Sales — Sufficiency of Evidence — Promise to Pay. An original promise of defendant to pay for goods sold and delivered to another, his tenant, is sufficiently established where the evidence shows that the tenant was farming certain lands of defendant on an agreement to share the crops; that the tenant was indebted to a storekeeper for groceries and farm implements, and had been refused further credit; that the defendant paid what was due on the groceries, but refused to pay the indebtedness for the machinery, and testified that he said, “I have paid the account as I agreed, now it is up to you, what will you do,” and the storekeeper said the tenant could have such further credit as he desired; while on the other hand, the testimony of the storekeeper was that defendant told him to let the tenant have “what he wanted and he would pay him dollar for dollar,” and this testimony was corroborated hy that of the tenant and by an employee of the storekeeper, and hy the further fact that the tenant was already indebted to the amount of his own share in the crop, and it was to defendant’s interest to see that he was supplied with goods necessary to carry on harvest operations, so that the defendant would be able to realize his half share in the crops.</p> <p>Frauds, Statute of — -Promise to Pay Debt of Another — Original or Collateral Promise — -Evidence. A promise to pay the debt of another for goods sold is an original, and not a collateral one, where it was a direct promise to pay the debt “dollar for dollar,” without qualification or reservation; and the fact that the goods were not charged to the promisor, but to the original debtor, would not in itself be sufficient to overcome a direct promise.</p> <p>Appeal — Review—Findings. Upon trials de novo on appeal, the findings of the lower court are not equivalent to the verdict of a jury and thus entitled to stand, if there is evidence to support them, but it is the duty of the supreme court not to follow them when against the weight of the evidence.</p>

, entered October 9, 1913, upon findings in favor of the plaintiff, in an action to - foreclose a pledge, tried to the court.

<p>Criminal Law — Evidence—Similar Offenses — Admissibility. In a prosecution for larceny based upon the deposit in bank of checks drawn hy defendant on another bank in which he had no funds, the defendant assuming to be a man of means and negotiating for the purchase of a majority of the capital stock of the bank in which the fictitious deposit was made, evidence of a prior similar transaction in which the defendant attempted to purchase another hank, hut was not able to consummate it on account of his financial inability, was admissible on the grounds of showing intent and as bearing on his inability to deposit funds in the bank on which his checks were drawn before the latter could be presented for payment.</p> <p>Criminal Law — Reception of Evidence — Objection. Where testimony in a criminal prosecution might be admissible for some purpose, error cannot be predicated upon its admission over a general objection which states no grounds therefor, and when no motion was interposed to strike the testimony because not properly connected with the transaction in controversy.</p>

, entered August 1, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malicious prosecution.

, entered May 1, 1911, in favor of the defendant, confirming an assessment roll for a public improvement, upon appeal from the city council.

<p>Trade-Marks and Trade-Names — Unfair Competition — Imitation. Fraud amounting to unfair competition by the confusion of things used in the label of another which through such other’s prior use had come to connote a particular thing, depends upon whether the same would be reasonably calculated to deceive the common or usual purchaser of the given article when exercising ordinary care.</p> <p>Trade-Marks and Trade-Names — Unfair Competition — Imitation —Labels and Colors. Unfair competition in the use of a similar label for a like article of goods, sufficient to warrant injunction, is not shown by the fact that plaintiff for a number of years had on the market a condensed milk known as “Carnation Brand Sterilized Evaporated Milk,” and that the defendant later put out an article known as “Wild Rose Brand Sterilized Milk,” when the specific points of resemblance in the labels are that both are made of the samé colors of red and white in bands of uniform width with their relative positions reversed; that the central group of one consists of a bunch of three carnations and the other of three wild roses, and that there is a resemblance in number, size, arrangement and relative position of the several parts and words and in the colors in which the same are represented, excepting that the title “Carnation” is in script type and that of “Wild Rose” in Roman; since there is no idem, sonans in the names, and similarity in the color scheme alone is not sufficient to constitute an infringement; especially where there was no evidence that dealers or consumers had been deceived by the similarity in color and design.</p> <p>Trade-Marks and Trade-Names — Unfair Competition — Imitation —Deception of Public. Although a label for a competing article of goods may manifest a similarity in color scheme and grouping which might be characterized as ethically questionable, yet where the differences are so prominent as to negative a design to deceive an intending purchaser of ordinary intelligence using reasonable caution, and there is no evidence of a single person having been deceived, the burden being on plaintiff to establish that fact, the use of such label will not be enjoined.</p>

<p>Appeal from an order of the superior court for King county, Ronald, J., entered July 6, 1914, in favor of the defendant, revising an assessment roll, in pursuance of a mandate of the supreme court on appeal from confirmation of the assessment.</p>

, entered April 14, 1914, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

, entered June 16, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries caused by blasting.

<p>Mines and Minerals — Relocation—Notices. Under Rem. & Bal. Code, § 7365, providing that upon “the relocation of forfeited or abandoned quartz or lode claims, ... a new location monument shall be erected and the location certificate shall state if the whole or any part of the new location is located as abandoned property,” the relocation notice posted upon a claim alleged to be for. feited is invalid where it fails to state that it is located in whole or in part upon forfeited or abandoned ground; the term “abandoned” in the latter part of the act being used synonymously and interchangeably with the terms “forfeited or abandoned” as used in the first part of the act; and it is not sufficient that the certificate to be recorded under § 7358 states the fact as to abandonment.</p> <p>Mines and Minerals — Assessment Work — Relocation—Right to. A relocation of a group of mining claims, on the theory that they had been abandoned or forfeited because assessment work for the prior year had not been done on the claims, is invalid, where, prior to the filing of the relocation notice, the original holder had resumed operations by building and improving trails and roads for the better development of the mine, and was furnishing and moving donkey engines and other material for the purpose of facilitating mining operations for which expenditures had been made in excess of the sums required for assessment work on the claims, although said expenses incurred were not within the boundaries of its claims, and would also inure to the benefit of a railroad project in connection with the mines.</p> <p>Mines and Minerals — Minuto Claims — Forfeiture. Under U. S. Rev. Stat., § 2324, providing that, upon failure to do annual assessment work, a mining claim shall be open to relocation, provided the original locators, or successors in interest, have not resumed work upon the claim after failure and before such relocation, a forfeiture does not ensue from the mere failure to comply with the law, but resumption of work at any time prior to the lawful inception of an intervening right would prevent forfeiture, and a forfeiture will not be declared except on clear and convincing proof with every reasonable doubt resolved against a forfeiture.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered November 25, 1914, upon findings in favor of the defendant, in an action upon a rejected claim against an estate, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered March 7, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Depositions — Objections-—-Waiver. A general objection to the reading of a deposition of a witness at the time it was offered in evidence, without basing the objection upon some specific ground of inadmissibility, waives the necessity of the opposing party proving that the deposition was authorized under the statute.</p> <p>Bills and Notes — Indorsement—Consideration. Under Rem. & Bal. Code, § 3415, providing that every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value, the burden is upon an accommodation indorser to show that the indorsement was without consideration to him or to the makers.</p> <p>Bills and Notes- — Actions—Sufficiency of Evidence — Consideration for Indorsement. In an action on a promissory note, consideration for a guarantee by an accommodation indorser, is sufficiently shown, where there was evidence that the bank examiner was requiring payment or securing of four certain notes held by the hank, all executed by the same makers; that the president of the hank entered into an agreement with defendant, who was interested with the makers and had previously accommodated them, not to bring suit on the note if the latter would guarantee the note in controversy; that defendant did guarantee the note in consideration that suit should not be immediately brought thereon; and paid interest and acknowledged his personal liability thereon; and that, as part of the same transaction, the president of the bank had himself taken up the three other notes so that suit might not be brought thereon.</p>

, entered July 30, 1914, upon findings in favor of the defendants, dismissing an action to compel the issuance of a warrant in payment of a condemnation award, tried to the court.

<p>Appeal from a judgment of the superior court for Walla Walla county, Miller, J., entered November 11, 1913, upon findings in favor of the defendant, dismissing an application to vacate the appointment of a guardian for an insane person, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Miller, J., entered November 11, 1913, upon findings in favor of the plaintiff, in an action to set aside deeds, tried to the court.</p>

, entered November 25, 1914, upon findings in favor of the defendants, in an action to reform a deed, tried to the court.

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered March 9, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Criminal Law — Evidence—Admissions. In a prosecution for assault, declarations made by defendant on his arrest, tending to show intent or motive as to the offense charged, are admissible; and the fact that, interspersed through the conversation testified as had with the defendant, were probable references to feeling between him and other parties in the neighborhood would not constitute prejudicial error.</p> <p>Witnesses — Cross-Examination. In a prosecution for assault, the action of the court, in excluding cross-examination of the state’s witnesses as to charges made that the defendant’s mother was a claim jumper was not error, inasmuch as it was the duty of the court to restrict cross-examination of witnesses to the issues involved in the case.</p> <p>Assault and Battery — Criminal Prosecution ■ — • Degrees — Instructions. In a prosecution for assault in the second degree, under which the defendant might be convicted of assault in the third degree, defined as any assault not included in first and second degree assaults, an instruction defining all the degrees of assault, but expressly charging the jury that “defendant is not charged with assault in the first degree, and a definition of that offense is only given you that you may better understand the other degrees,” was not prejudicial error.</p> <p>Same — Second Degree — Evidence—Sufficiency. A conviction of assault in the second degree is warranted, under Rem. & Bal. Code, § 2414, defining the offense as willfully inflicting grievous bodily harm upon another with or without a weapon, or as assaulting with a weapon or thing likely to produce bodily harm, where the evidence showed that defendant disarmed the prosecuting witness of his revolver, struck him across the jaw with something that felt like a slug of iron, that he had a cut under each eye which were swollen almost shut, that his jaw was severely swollen, and that there was a fracture of the nasal bone.</p> <p>Criminal Law — Appeal and Error — Review — Failure to Give Instructions. • Under art. 4, § 16, of the state constitution providing that “judges shall declare the law,” and under Rem. & Bal. Code, § 2308, which provides that “every person charged with the commission of a crime shall be presumed innocent until the contrary is proved by competent evidence beyond a reasonable doubt,” tte inadvertence of tbe court in failing to instruct on the presumption of innocence is not prejudicial error, where no request bad been made for such instruction, and tbe court gave a correct instruction as to reasonable doubt and tbe requirements of tbe prosecution in establishing a case.</p> <p>Criminal Haw — Appeal and Error — Assignment oe Error. Alleged misconduct of counsel in argument to tbe jury, presented not by a stenographer’s report or certificate of tbe judge, but by affidavits of opposing counsel on a motion for a new trial, which was denied by tbe judge in whose presence and bearing tbe incident complained of occurred, raises no question for review on appeal.</p>

<p>Appeal from an order of the superior court for King county, Frater, J., entered June 12, 1914, adjudging a contempt for failure to comply with an order directing the payment of alimony.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered June 30, 1914, dismissing an action for injunctive relief, after a trial on the merits to the court.</p>

<p>Constitutional Law — Liens—Conditional Sale Contracts — Mechanics’ Liens — Priorities—Statutes. Rem. & Bal. Code, § 1156, which provides that “every person who is in possession of a chattel, under an agreement for the purchase thereof, whether the title thereto be in him, or his vendor, shall for the purposes of this act [Id., § 1154], be deemed the owner thereof, and the lien of a person expending material, labor or skill thereon shall be superior to and preferred to the rights of the person holding the title thereto,” is not unconstitutional as preferring mechanics’ liens over the interest of the vendor under a conditional sale contract, nor as being a deprivation of one’s property without due process of law.</p> <p>Constitutional Law — Due Process oe Law — Actions. One who is in court seeking to enforce the validity of his vendor’s lien as against a mechanics’ lien is not in a position to urge that he has been deprived of his property without due process of law.</p> <p>Partnership— Fictitious Name — Compliance With Statute— Objections. The objection that a partnership, doing business under an assumed name, cannot maintain an action because it had failed to file with the county clerk the designation of the firm, with the names of all the partners, as required by Rem. & Bal. Code, § 8369, goes only to the capacity to sue, and is waived if not raised by demurrer or answer.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered April 25, 1914, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.</p>

<p>Acknowledgment — False Certificate — Liability on Bond. Where a notary public certifies that the wife of a mortgagor personally appeared before him, and acknowledged the execution of the mortgage, when in fact no one was present or assumed to make such an acknowledgment, the notary is liable od his official bond as for a false certification.</p> <p>Husband and Wife — Community Property — Liability. The performance of the duties of notary public by the husband, being a community business engaged in for the benefit of both spouses, the community is liable on a judgment for his negligence in failing to faithfully discharge his duties as notary public.</p> <p>Evidence — -Character — Carefulness in Discharging Duties. In an action against a notary public and his bondsman for a specific act of negligent discharge of duties in taking an acknowledgment, evidence that he was ordinarily careful in taking acknowledgments, was inadmissible.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered June 20, 1914, upon a trial and conviction of assault in the second degree.</p>

, entered October 6, 1914, upon sustaining a demurrer to the complaint, dismissing an action for equitable relief, tried to the court.

Application filed in the supreme court April 1, 1915, for a writ of mandamus to compel the state auditor to issue warrants for material and supplies furnished certain state departments.

Application filed in the supreme court March 29, 1915, for a writ of mandamus to compel the secretary of state to file an act proposed for submission to a referendum vote.

<p>Application filed in the supreme-court March 29, 1915, for a writ of mandamus to compel the secretary of state to file an act proposed for submission to a referendum vote.</p>

, entered March 11, 1915, upon sustaining a demurrer to the complaint, dismissing an action to annul the organization of a commercial waterway district, tried to the court.

, entered April 7, 1914, upon findings in favor of the plaintiffs, in an action on a supersedeas bond, tried to the court.

<p>Municipal Corporations — Improvements—Assessments—Limitations — Estimated Cost — Reassessment—Power of City and Legislature — Repeal of Law — Effect. Where a local improvement was made by a third-class city, under Rem. & Bal. Code, § 7705, limiting the city’s power of assessment to an amount equal to the estimated cost, the property owner may rely thereon as a limitation on the jurisdiction of the city, and the legislature cannot, by a subsequent act, repeal the limitation as to improvements already made; hence the act of 1911, 3 Rem. & Bal. Code, §§ 7892-42, 7892-43, repealing § 7705 and authorizing the city to make supplemental or reassessments to cover the actual cost of the improvement can have no application to an improvement previously made under the limitation of § 7705, and confers no power on the city to reassess for any sum in excess of the estimate.</p> <p>Same — Curative Acts. Authority to make a reassessment under such act cannot be sustained on the theory of the power to pass curative acts, since there was no invalidity within the limitation, which subsequent legislation could not change after it had been acted upon by both the city and the property owner.</p> <p>Same — Assessments — Objections — Waiver — Jurisdictional Questions. Where a local improvement was made hy a third-class city under Bern. & Bal. Code, § 7705, which limited the city’s power of assessment to an amount equal to the estimated cost of the improvement, the failure of property owners to object at certain stages of the proceedings does not preclude them from raising the jurisdictional objection that the assessment exceeded the cost of the improvement; especially where, by 3 Bern. & Bal. Code, §§ 7892-42, 7892-43, the property owners were only permitted to raise objections to the existence and amount of the benefits.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered February 14, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Forcible Entry and Detainer — Defenses — Paramount Title. Paramount title and right of possession as a homesteader under the laws of the United States, is not an affirmative defense to an action of forcible entry and detainer under Rem. & Bal. Code, § 811, providing that every person who, in the nighttime or during the absence of the occupant of real property, unlawfully enters thereon or who, after demand, refuses for three days to surrender the same, and defining the occupant as one who, for the five days next preceding, was in the peaceable and undisturbed possession of the property, and § 825 expressly limiting the issues in such action to the questions of forcible entry and detainer and occupancy as defined in the act.</p> <p>Same — Entry — Defenses — Rights of Homesteaders — Federal Statutes. Our statutes of forcible entry and detainer, Rem. & Bal. Code, §§ 811, 825, are not in conflict with U. S. Rev. Stat., § 2289, authorizing the head of a family to enter a homestead, since Congress has not prescribed the forum for redressing the wrongs of claimants wrongfully dispossessed, but has left the same to local tribunals.</p> <p>Same — Defenses—Public Lands — Lawfulness of Enclosure. 23 Stat. L. 321, 322, to the effect that all enclosures of any public lands of the United States, made by any person having no claim or color of title made in good faith, are unlawful, does not entitle the defendant in an action of unlawful detainer, to show that the plaintiff had enclosed and was in unlawful possession of the land in question, being government land, and was not a qualified homesteader, where it clearly appears that the enclosure was made and possession taken and maintained for twenty years, by the plaintiff and his predecessors in interest, under claim of right and color of title, having purchased the land at a fair price.</p> <p>Same — Defenses—Possession of Plaintiff — Question for Jury, In an action for unlawful detainer, in which defendant claimed that the plaintiff had leased the land and that the lease had not expired, the question of plaintiff’s possession was for the jury, where there was evidence that the lease had been surrendered several months previously and plaintiff had resumed actual possession.</p>

<p>Lost Instruments — Evidence—Sufficiency. The proof to establish a lost written instrument must be clear and positive.</p>

, entered May 29, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for services rendered.

<p>Sales — Rescission-—Fraud. Misrepresentations as to the value and present condition of a going business, inducing a purchase by one who is unfamiliar with the facts warrants a rescission.</p>

<p>Appeal — Record—Necessity—Grant oe New Trial. Where a motion for a new trial, made on all the statutory grounds, was granted, and the record only shows the proceedings after verdict, the order must be affirmed on appeal, since the order may have been granted on other grounds which cannot be reviewed on the record brought up.</p> <p>Trial — Verdict—Mistake—Correction—New Trial. Where the jury returned a verdict for the defendant by mistake, and was discharged and allowed to separate, the court is without power to call the jury together to correct its mistake and render a verdict for the plaintiff; the remedy being to grant a new trial.</p>

<p>Appeal — Review—Presumptions — Amendments to Conform to Proof. A complaint in an action on contract for tbe transportation of wheat in tbe fall of 1911, will, if necessary, be deemed amended on appeal to conform to tbe proof, admitted without objection, of a subsequent modification of tbe contract as construed and agreed to by tbe parties, for tbe transportation of tbe wheat in the spring of 1912.</p> <p>Carriers — Contracts—Breach — Delay — Damages — Defenses. Liability for damages for unreasonable delay by a steamboat company in transporting wheat down tbe river pursuant to its contract with plaintiff, whereby plaintiff lost an advantageous sale of tbe wheat to a milling company, cannot be avoided by tbe steamboat company on tbe claim that plaintiff’s contract with tbe milling company was an absolute sale at tbe point up tbe river where tbe wheat was located, where in fact tbe sale was dependent on the transportation of tbe wheat, and was rescinded by tbe milling company for failure to transport and deliver tbe wheat.</p>

, entered June 11, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a collision between an automobile and a street car.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered June 10, 1914, in favor of the plaintiff, upon sustaining a demurrer to the answer, in an action to enjoin the collection of a tax.</p>

<p>Malicious Prosecution — Criminal Responsibility — Requisites of Information — Certainty. Under Rem. & Bal. Code, § 2369, making it a felony to maliciously and without probable cause cause the arrest of another for a felony, and making it a misdemeanor to so cause the arrest of another for a misdemeanor, an information charging a malicious prosecution without specifying the charge on which the arrest was made is fatally defective, in that it charges two offenses, if any, in violation of Id., § 2059, and also in that it fails to comply with § 2057, providing that an information must be direct and certain as regards the crime charged.</p>

, entered May 1, 1914, upon findings in favor of the plaintiff, in an action by a receiver to recover the amount of a dividend received by stockholders of a corporation.

, entered June 22, 1914, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

<p>Appeal from an order of the superior court for Walla Walla county, Mills, J., entered July 24, 1914, granting injunctive relief pending suit.</p>

<p>Appeal and Error — Review—Questions of Fact — Findings. Upon a trial de novo on appeal, it is the duty of the supreme court to carefully examine and weigh the conflicting evidence before the trial court, and to sustain or reverse the findings in accordance with the clear preponderance of the evidence.</p> <p>Bills and Notes — Duress — Sufficiency of Evidence. Duress sufficient to coerce defendants into the execution of promissory notes is not established by evidence that defendants were men in the prime of life, of business experience and mentally competent, that the negotiations were under way for some time after plaintiffs had threatened a receivership and a criminal prosecution, and defendants never sought legal advice, and the notes were not repudiated until about due date, six and one-half months later; the controlling test being the condition of the mind of the wronged party at the time, his state of health, condition in life, experience, education and intelligence.</p> <p>Bills and Notes — Duress—What Constitutes. The obtaining of promissory notes by threats of litigation and of criminal prosecution would not constitute legal duress, where the threats were merely of prosecution at some indefinite time, and there was no restraint imminent at the time of signing the notes that could be considered as constraining the mind of an ordinary person.</p>

<p>Municipal Corporations — Defective Streets — Liability. In an action for injuries received by driving an automobile into a gulcb across one of tbe city streets, there was sufficient evidence to present the question of the city’s negligence to the jury, where it appeared that a gulch thirty feet deep and eighty feet wide crossed such street, but that the lighting of the streets on each side of the gulch gave the impression of a continuous street; that there was no harrier, or danger signal or light near the gulch, except an ordinary incandescent light on a telegraph pole, which tended rather to obscure than disclose the gulch, and in the obscurity the ravine presented the appearance of a continuation of the unpaved portion of the street.</p> <p>Negligence — Imputed Negligence — Driver of Vehicle. Contributory negligence of the driver of an automobile in exceeding the speed limit is not imputable to an invited.guest, who was not in a position to exercise some control over the driver, had no reason to believe the driver was careless or incompetent, did not appreciate that the speed was dangerous, and was unfamiliar with the streets over which she was riding.</p> <p>Jury — Challenges—Prejudice. Challenge for cause to a juror was properly sustained, on the ground that it would take evidence to remove his initial prejudice, where he admitted on examination that he had a prejudice against young people attending dances, and that the fact that the young people were returning from a social dance would prejudice him against plaintiff who was suing for injuries received while returning from a dance; even if the juror on further examination, stated that, while he was decidedly opposed to dances, if it appeared that plaintiffs injuries in no manner grew out of her haying attended a dance, he would not lay that up against her, but would go according to the law and testimony.</p> <p>Jury — Term of Service — Expiration During Trial — Effect. If a jury is properly drawn and impaneled, and enters upon a trial within the regular jury term, it is a properly constituted jury to complete the trial, though it may carry them over their statutory term as jurors; notwithstanding 3 Rem. & Bal. Code, § 94-4, providing jury terms to commence on the first Monday of each month and end on the Saturday preceding the first Monday of the next month unless changed by order of the judge, and notwithstanding that no such order for a change was made.</p> <p>Appeal — Review—Harmless Error — Waiver. Where, in an action for personal injuries, the court, in withdrawing from the jury the question of damages as to certain injuries not included in the complaint, failed to mention one of the items omitted, the omission was not prejudicial error, where counsel stated that the withdrawal was sufficient and failed to request instruction on the point, and the verdict was not excessive.</p> <p>Municipal Corporations — Injuries From Defective Street — Evidence — Similarity of Conditions. In an action for injuries received from driving an automobile into a gulch crossing a city street, on account of the unguarded and deceptive condition of the street, evidence as to the condition of the street some eight months after the injury was not error, where the comparative conditions of the street were not materially changed, and on the subsequent date, an auto truck, on a similar dark night, and with a headlight illuminating the roadway for about the same distance as the other machine, was driven over the same course and the gulch was not discovered by the driver until his front wheels went over the edge.</p> <p>Appeal and Error — Preservation of Grounds — Objections. Testimony of a pedestrian that, to one approaching a gulch in the nightr time, the street had the appearance of a continuous one, cannot be urged on appeal as inadmissible, because the time of witness’ observation was not fixed, where no objection was made in the court below.</p> <p>Trial — Instructions—Construction as Whole. Though isolated parts of instructions, standing alone, might be objectionable, it would not constitute error, where, taken in connection with the balance of the instructions in context, they properly state the law.</p> <p>Trial — Instructions — Requests — Instructions Already Given. The refusal of requested instructions is not error, where they are fully covered by the instructions given. '</p>

<p>Contracts — Building Contracts — Approval op Architect. Wliere construction work is to be done to tbe satisfaction of a .third party, suck as an architect, the judgment of such third party, either in approving or condemning the work, must be exercised in an honest and independent manner, not arbitrarily or fraudulently; and, if the approval or condemnation of the work is arbitrary, it amounts to a constructive fraud.</p> <p>Contracts — Performance—Question for Jury. In an action by a subcontractor on a contract for putting in the cement floors of a large office building, whether the architects had been arbitrary in condemning the work and ordering its removal, and whether the work done by the subcontractor was in conformity to the plans and specifications, was a question for the jury, where the evidence showed he had completed the work on five of the floors, and the architects ordered them all out on the objection that they did not conform to sample and that the subcontractor had been employed without his approval, as the contract with the construction company required; and the subcontractor testified that whatever defects there were in the floors could have been corrected without their removal.</p> <p>Contracts — Performance—Evidence. In an action by a subcontractor to recover for work done which the architects condemned and ordered replaced by the principal contractor, evidence touching the question whether the floors constructed by the subcontractor were equally as good as those subsequently constructed by the principal contractor to replace them was admissible as bearing on the question whether the architects had considered the merits of the subcontractor’s work when they ordered its removal, or whether the reason they condemned it was because the contract had not been submitted to them for their approval.</p>

<p>Waters and Water Courses — Action for Obstruction — Issues and Proof — Instructions. In an action for damages for the alleged obstruction of the natural flow of “surface” waters, an instruction on “surface and other waters” is not erroneous as enlarging the scope of the issues, where it is apparent from the complaint that “surface waters” was used to designate waters coming from a large area and flowing through a natural water course which crossed their premises; since a particular statement controls a general term, in case of conflict.</p> <p>Trial — Issues and Proof — Instructions. Although the pleadings might be obscure, the court could properly base instructions on evidence admitted without objection, which was broader than the pleadings.</p> <p>Waters and Water Courses — Obstruction — Negligence —1 Instructions. An obstruction of a water course by building a railroad embankment so as to prevent the natural flow of the waters in their accustomed channel, and thereby overflow plaintiffs’ premises, is wrongful as to plaintiffs, regardless of negligence; and hence an instruction should eliminate negligence in the construction as an element of the wrong complained of.</p> <p>Same — Instructions. In an action for overflowing lands by obstructing a water course, an instruction that “the drain provided by the defendant to take care of the waters of the stream . . . must have been sufficient to take care of and dispose of the waters flowing down the stream at times of any ordinary freshet, but need not have been sufficient to provide against an unprecedented flow of high water,” is not an invasion of the province of the jury as a determination of a question of fact, but merely states the rule as to the measure of duty the law imposed upon the defendants with regard to the drain.</p> <p>Trial — Instructions—Failure to Cover Evidence — Remedy. The remedy for instructions not sufficiently full to cover the entire evidence on a particular subject is to ask for further instructions, not to object to the instructions given.</p> <p>Constitutional Law — Due Process — Change of Street Grade— Damaging Private Property. An injury to an abutting property caused by a change in the grade of a highway, made necessary to carry the highway across the tracks of a railroad, is a taking and damaging of property within the meaning of the constitutional provision (Const., art. 1, § 16) relating to the taking and damaging of private property for a public use, even though the change is confined to the highway and does not extend to the property damaged.</p> <p>Waters and Water Courses — Obstruction — Change op Street Grade — Liability op Railroad. A railroad company cannot escape liability for obstructing a water course by changing the grade of a street in the construction of an approach to the railway crossing of the street on the theory that it was a duty devolving upon the municipality, which service the railway company was employed to perform as a contractor and agent of the town, when it appears that the change in grade, as a part of the embankment and approach, was necessary to enable the railway to cross the street at a proper grade, that the town entered into no contract for the construction of the approach, nor furnished plans and specifications therefor, but had required in its franchise to the railway that suitable crossings and approaches should be maintained without expense to the town.</p> <p>Same — Change op Established Grade — Liability op Railroad. In an action for flooding lands by the obstruction of a water course, a railway company, which changed the street grade by constructing an approach to its tracks, thereby raising the street above the grade as established, and flooding the lands, cannot escape liability for consequential damages on the theory that an original grade in use was lower than the established grade and that the grade put in by the railway at the requirement of the town was in the nature of an original or initial grade, where it was higher than and as variant from the established grade as the original grade.</p> <p>Same. An approach to a railway embankment constructed in a town street so as to afford a crossing at grade, under the authority of the town, would not exempt the railway company from liability for injuries caused to private property, where the franchise itself, under which the authority was exercised, provided that the company should be liable for all loss, damage and expense arising out of any injury to the property of any person caused by the construction of such railway.</p> <p>Municipal Corporations — Streets—Change oe Grade. While the owner of property in a municipality whose streets have been dedicated to a public use cannot complain of an initial or original grade, since it is conclusively presumed that it was intended by the dedicator that the streets should be made suitable for public convenience, grades made necessary by the building of commercial railways cannot be said to fall within the grant, such use being adverse to, and not within, the contemplated use.</p> <p>Waters and Water Courses — Obstruction—Damages-—Instructions. In an action for the wrongful obstruction of the natural flow of waters, instructions on the measure of damages are not objectionable as authorizing the jury to assess damages on a double basis, where on one cause of action recovery was allowed for the obstruction of the natural channel of a stream on one side of the plaintiffs’ premises, and for the loss of use of the premises for two years next preceding the action, and in the other cause of action recovery was allowed for permanent injuries caused by waters being cast on plaintiffs’ property by reason of elevation of the street grade on another side of the premises, and for loss of the use of the property for two years next preceding the action.</p> <p>Trial — Instructions—Refusal of Requests. The refusal of requested instructions based on defendant’s theory of the case was proper, when not in conformity with the correct theory adopted by the trial court.</p> <p>Appeal and Error — Verdict—Conclusiveness—Amount of Damages. A verdict awarding damages will not be interfered with as excessive, when the question of amount was wholly within the province of the jury, and there was evidence to support the award.</p>

<p>Trial — Direction of Verdict — Correction of Error — Judgment Notwithstanding Verdict. Tbe action of tbe court in rendering judgment non obstante veredicto, after overruling a motion for non-suit and a challenge to the sufficiency of the evidence, was proper, where there was no sufficient evidence on which to base a recovery introduced at the trial; since, if the court decided erroneously in the first instance, its powers were ample to correct its error at any time before the entry of a final judgment.</p> <p>Same — Time for Motion. Where judgment on a verdict has not been actually entered, the court would not he precluded from rendering judgment non obstante from the mere fact that a right existed to entry of judgment on the return of the verdict.</p> <p>Same — Taking Case From: Jury. Where there is a substantial conflict in the evidence, the court has no right to determine, as a question of law, a motion for nonsuit, a challenge to the sufficiency of the evidence, or a motion for a judgment notwithstanding the verdict, on the ground that the party holding the affirmative has failed to prove a cause for the jury.</p> <p>Master and Servant — Injuries to Servant — Fellow Servants— Sufficiency of Evidence. An employee injured while unloading machinery from a car, due to the carelessness of another employee in not securely fastening pieces remaining after the removal of an outside piece, cannot recover on the ground that a fellow employee was selected by the master as its representative and that he allowed the place to become unsafe, where it appears that the work was not out of the ordinary and was commonly performed without direct supervision; that there was no hidden danger and plaintiff had been engaged in similar work and was not working under the supervision of his fellow employee, both being employed as common laborers at the same wages; and the order of the foreman given to unload the cars was directed to the one as much as to the other.</p> <p>Same — Vice Principal. The fact that a fellow servant, in the progress of work in the same common employment, assumes to give directions to other fellow servants necessary to secure concert of action and facilitate the work, does not elevate him into the position of a vice principal.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Jackson, J., entered February 11, 1914, in favor of the plaintiffs, in an action to subject property to a judgment, tried to the court.</p>

<p>Corporations- — Receivers—Complaint—Sufficiency. A complaint by a stockholder for the appointment of a receiver for a solvent corporation on the ground of maladministration and mismanagement must allege facts showing maladministration and mismanagement, the general charge of that state of affairs being nothing more than a conclusion.</p> <p>Corporations — -Receivers—Grounds—Mismanagement—Loss. A receiver will not be appointed for a solvent corporation, in the absence of a charge of fraud or infringement of the legal rights of minority stockholders, because the business has been conducted at a loss for a period of time prior to the institution of a suit therefor, nor because the minority stockholders believe the policy of the majority in the manner of conducting the business and changing the location thereof is hurtful to the corporate interests.</p> <p>Corporations — Receivers—Grounds — Mismanagement — Salary Increase. The fact that the majority stockholders in a solvent corporation raise the salary of the manager, while the business is conducted at a loss, is not a ground for the appointment of a receiver; since, if such increase is illegal, the remedy is an action to restrain its future payment and for the recovery of any illegal salary which has been previously paid.</p>

, entered January 5, 1914, upon the verdict of a jury rendered in favor of the defendant, in an action on a promissory note.

<p>Witnesses — Impeachment—Former Testimony — Effect. In an action to recover damages for personal injuries due to the negligence of the city in permitting a cross-walk on one of its streets to be in a dangerous and unsafe condition, the fact that, in another action by the plaintiff for injuries subsequently suffered through the negligence of a street car company, her testimony as to the extent of her injuries was different from that in the present action, merely affects her credibility, and would not overcome the findings of the trial court in her favor, where there was sufficient evidence as to the unsafe condition of the cross-walk and as to the extent of plaintiff’s injuries.</p> <p>Damages — Excessive Damages — Injuries to Arm and Wrist. In a personal injury case, where the court finds that plaintiff’s body was severely bruised, that she suffered a colies fracture of the right arm, and that there was a permanent injury to her wrist, a judgment for $900 for the injuries, and their attendant inconvenience, pain and suffering, was not excessive.</p>

<p>Appeal from an order of the superior court for King county, Smith, J., entered April SO, 1914, authorizing a receiver to enforce unpaid subscriptions to the stock of an insolvent corporation, after a hearing before the court.</p>

<p>Appeal — Record—Certification—Amendment. The fact that the original certificate by the. trial judge to the bill of exceptions did not meet the requirements of Rem. & Bal. Code, § 391, would not be ground for dismissal of the appeal, where an amended certificate which satisfies the statute was later filed and, by stipulation of the parties, the clerk of the supreme court was authorized to attach same to the bill of exceptions on file in the supreme court.</p> <p>Appeal — Harmless Error — Bill of Exceptions — Omissions. The omission from a bill of exceptions of interrogatories to garnishee defendants prior to trial and their answers thereto could not be assigned as error, where the bill of exceptions did not show that they had been offered in evidence.</p> <p>Appeal — Record —■ Certificate — Impeachment — Reference. In order to impeach the trial judge’s certificate that a bill of exceptions contains all the material facts, the respondent’s remedy is to apply to the supreme court for an order of reference to have the question determined.</p> <p>Appeal — Record—Abstract—Sufficiency. An objection that the testimony set out in an abstract of the record is substantially a copy of that contained in the bill of exceptions without further condensation, is without merit, where in the preparation of the bill, giving the testimony in narrative form, all unnecessary matter was eliminated, and a further condensation would result in an incomplete presentation of the case.</p> <p>Appeal — Notice of Appeal — Parties. On appeal from orders in„ garnishment proceedings in which the principal defendants have no interest, service of notice of appeal on the principal defendants is unnecessary.</p> <p>Fraudulent Conveyances — Bulk Sales Law — Preference. Where the value of a stock of goods taken by a creditor from a failing debtor is less than the amount due it on open account, the transaction amounts to no more than a preference and not a sale, and such creditor is not liable to garnishment under the sales-in-bulk act (Rem. & Bal. Code, §§ 5296-5300) for failure to require an affidavit and list of creditors.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered June 22,1914, 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 King county, Gilliam, J., entered April 25, 1914, upon findings in favor of the plaintiff, in an action on a check, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered January 8, 1914, upon findings in favor of the defendants, dismissing an action for rescission, tried to the court.</p>

, entered June 5, 1914, upon findings in favor of the plaintiff, in an action upon an assigned account, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered May 29, 1914, upon findings in favor of the plaintiff, in an action for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered April 18, 1914, upon granting a nonsuit, dismissing an action for personal injuries sustained by a pedestrian through a defective highway.</p>

<p>Appeal and Ebboe — Law of the Case. Questions decided adversely to appellant upon a first appeal will not be considered on a second appeal, where the evidence of existing conditions is the same as on the former trial.</p> <p>Appeal — Review—Harmless Ebboe — Instructions. Length of instructions, or repétition of matters contained therein, are not necessarily matters of prejudice, but the party complaining should show specifically in what way he is prejudiced thereby.</p> <p>Municipal Corporations — Injuries to Pedestrian — Actions—Instructions. In an action for injuries to a pedestrian struck by a motor truck, in which the plaintiff’s evidence showed that he was struck in the middle of the street and the truck was not where it should have been in compliance with ordinance regulations, while defendant’s evidence showed that the truck was being driven as near the right-hand curb as possible, going in the direction it was, an instruction was not erroneous as determining the defendant’s negligence through violation of the ordinance as to the use of the street as a matter of law, where it charged the jury that, if they find that plaintiff “had reached a place in the street where, if the defendant had operated its motor truck in accordance with the provisions of the city ordinance, he would have been out of the danger zone, then his failure to look north at the time when he started to cross the street would not preclude a recovery, because of his right to rely upon the use of the street by defendant in a lawful manner, and of his right to expect the automobile truck to be in a place where under the ordinance it had a right to be.”</p> <p>Damages — Personal Injuries — Excessive Vebdict. In an action for personal injuries sustained by a laborer, 35 years of age, capable of earning $2.50 a day, a verdict for $12,500 was excessive and should be reduced to $7,500, although some two years after the injury, he was unable to dispense with a leather and steel jacket to support his trunk, and the fracture of the vertebrae still exists, and he still suffers some pain; since the former sum placed at seven per cent interest, would yield him more than his earning capacity for the whole of his expectancy, and he would still have the principal left.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered March 2, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for libel.</p>

<p>Cross-appeals from a judgment of the superior court for King county, French, J., entered September 29, 1914<, authorizing the levy of an assessment upon property specially benefited by a public improvement.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered May 22, 1914, denying the right of a creditor as a preferred claimant to property in the hands of a receiver, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered April 28, 1914, in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

<p>Appeal and Error — Notice of Appeal — -Notice by Codefendants. A codefendant, similarly affected by the judgment, must join in the appeal or take an independent appeal within ten days after notice of appeal, as required by Rem. & Bal. Code, § 1720.</p> <p>Master and Servant — Independent Contractor — Liability of Principal. A subcontractor sustains the relation of an independent contractor, for whose negligence in injuring third persons the principal contractor would not be liable, where he was employed by a building company to do the excavation work necessary for the construction of a building, no control was exercised over the manner of doing the work, he used his own equipment, employed and paid his own men, and the work was not so intrinsically dangerous as to probably result in injuries to third persons, and a reservation by the employer of the right to supervise the work for the purpose of determining whether it is being done in accordance with the contract does not affect the independence of the relation.</p> <p>Same — Relation—Independent Contractor — Negligence — Parties Liable. A superintendent employed by a building company, whose duties did not begin until after excavation therefor was completed, is not liable for injuries received by reason of the negligence of a subcontractor in doing the excavation work.</p> <p>Municipal Corporations — Obstructions in Street — Personal Injuries' — Proximate Cause. In an action for injuries by a passenger in a taxicab when it collided with a drag unlawfully used in the street by a building contractor without any permit, the question of whether the unlawful use of the drag was the proximate cause of the injury was for the jury.</p> <p>Trial — Misconduct of Counsel — Improper Argument. Where the argument of counsel transgresses the bounds of propriety by seeking to inflame the minds of the jury against a defendant corporation, and urging that, in order to hold the corporation, they must find against a certain other defendant, it is prejudicial to the latter defendant; and the refusal of the court to interfere when requested, or to instruct the jury to disregard the remarks of counsel, possibly leading the jury to believe the court indorsed the statements, tended to enhance the prejudice.</p>

<p>Appeal from ia judgment of the superior court for Pierce county, Easterday, J., entered January 81, 1914, 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 Stevens county, Jackson, J., entered October 7, 1913, upon findings in favor of the defendants, in an action to quiet title, tried to the court.</p>

, entered March 30, 1914, in favor of the plaintiff, upon sustaining a demurrer to the affirmative defenses, in an action on promissory notes, tried to the court.

<p>Appeal — Review—Waiver oe Error — Nonsuit. Error in tbe denial of a motion for nonsuit is waived, where defendant presents bis evidence, and tbe case will thereafter be reviewed on appeal upon the entire testimony.</p> <p>Appeal and Error — Review—Findings. Where there is substantial evidence to support the verdict, the finding of a jury upon a disputed question of fact will not be disturbed on appeal.</p> <p>Shipping — Contracts — Towage or Charter Party — Injury to Vessel — Liability. A contract of bailment for hire constituting a charter party, and not one of towage, is established by evidence showing that defendant was using its own tugs and barges to convey sand from plaintiff’s sand plant to contractors at V. who, becoming urgent for sand, contracted with plaintiff for the use of his scow for a certain voyage, to be loaded by plaintiff and then towed by defendant, and that plaintiff had nothing to do with the towing of the scow, but that the use of his scow for the particular trip mentioned was hired from him by the defendant; hence loss or damage to the scow is to be measured according to the law of bailment.</p> <p>Same — Negligence — Charterer — Burden oe Proof. Where a chartered scow broke away from her tow and was wrecked and was injured while in the exclusive possession of the bailee, the burden is upon it to show how the injury occurred and that it was free from negligence.</p> <p>Shipping — Injury to Scow —Instructions — Reasonable Care. In instructing the jury on the measure of defendant’s duty while in possession of a scow as bailee, the use of the term “responsible” in place of “reasonable,” as modifying “skill and care” was not prejudicial as tending to mislead the jury, where subsequently .in the same instruction it was said that the exercise of “reasonable care and caution and maritime skill” was all that was required.</p> <p>Shipping — Injury to Scow- — Instructions—Liability. In an action for damages to a scow while bailed to defendant, where the evidence was conflicting as to whether plaintiff had authorized the defendant to employ another tugboat company to tow the scow with a gasoline tug of insufficient power, it was proper to instruct the jury that, if plaintiff knew nothing of the arrangement for the use of a gasoline tug and did not consent thereto, the defendant would be liable if the scow was damaged as claimed.</p> <p>Appeal — -Review — Harmless Error — Instructions. Refusal of requested instructions is not prejudicial when the instructions given correctly state the law applicable to the facts in the case.</p>

, entered April 29, 1914, upon the verdict of a jury rendered in favor of the plaintiff for $5,523.89, in -an action upon an insurance policy.

, entered May 4, 1914, in favor of the defendant, upon the pleadings, dismissing an action for damages to property, by the construction and operation of a railroad.

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered January 24., 1914., upon sustaining a demurrer to the complaint, dismissing an action to foreclose a materialman’s lien.</p>

Application filed in the supreme court March 15, 1915, for a writ of mandamus to compel the superior court for King county, Albertson, J., to proceed with the trial of a cause.

, entered July 29, 1914, granting a new trial, after the verdict of a jury rendered in favor of the defendants, in an action on contract.

, entered October 31, 1913, upon findings in favor of the defendants, in an action to foreclose mechanics’ liens, tried to the court.

<p>Appeal from a judgment of the superior court for Okanogan county, Chas. A. Johnson, Esq., judge pro tempore, entered March 19, 1914, denying a petition for an order of adoption, upon findings of the court.</p>

<p>Fraud — Misrepresentations—Matters of Record' — Reliance. A party may rely upon a statement as to a fact made to him by another as a basis for a mutual engagement, where the facts are unknown to him but known to the other and are made for the purpose of inducing a reliance thereon, even though the statement was as to the amount of city assessments against lots, which was a matter of record, the truth or falsity of which could have been ascertained by an inspection of the public records.</p> <p>Fraud — Misrepresentations — Vendor and Purchaser. A false representation as to the estimate of the cost of a street improvement made to a prospective purchaser is a false representation as to a material fact, and not a mere expression of opinion.</p> <p>Fraud — Misrepresentations — Damages. Where one purchases property relying on the vendor’s false representations that the estimated cost of an assessment thereon for a street improvement would not exceed a certain sum, and the cost was largely in excess, the purchaser would be injured to the extent of the difference between these two sums, regardless of the benefits conferred by the improvement.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered May 9, 1914, in favor of the defendants, upon the pleadings, dismissing an action to cancel a tax.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered May 21, 1914, upon findings in favor of the plaintiff, in an action upon a promissory note, tried to the court.</p>

, entered June 25, 1914, upon granting a nonsuit, dismissing an action for personal injuries sustained by a minor through the explosion of a dynamite cap.

<p>Attorney and Client — Partnership—Contract for Dissolution —Accounting—Fees. Where a contract dissolving a law partnership and arranging a division of the business on hand, and of the fees and commissions thereafter arising from such business, enumerated certain business, including among others, a specified case in which the compensation was to be a percentage of the recovery, and provided that the fees and allowances arising therefrom, except commissions on collections, shall be divided in certain proportions, must be construed as intending that in the specified case the compensation was regarded as “fees” for division, and not as “commissions” which by the contract were reserved to one of the partners as his own "fees,” the element of contingency in the fee not rendering it subject to classification as a “commission.”</p> <p>Attorney and Client — Partnership—Contract of Dissolution —Performance. Under a contract of dissolution of partnership in the law business, wherein the retiring partner was to complete certain business in the circuit court of appeals at his own expense, in order to be entitled to an agreed share of compensation, the fact that-such retiring partner was put to no further expense in the matter, and did no other work in the case, after writing the brief thereon, than make an arrangement for another attorney to argue the cause in the circuit court of appeals, would not deprive him or his estate of his share of compensation.</p> <p>Attorney and Client — Partnership—Contract of Dissolution— Performance. In such a case, the fact that the brief was originally written during the existence of the partnership, would not make it the property of the continuing partner on the dissolution, so as to make its use, subsequent to the death of the retiring partner, the contribution of the continuing partner to work necessary in the cause.</p> <p>Attorney and Client — Partnership—Dissolution—Accounting —Individual Profit. The continuing partner who, under a dissolution contract, was to account to the retiring partner for a proportionate part of the fees on certain business, would not be required to divide the profit on buying the client’s claim at a discount.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered November 14, 1914, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

, entered June 24, 1914, upon findings in favor of the plaintiff, in an action upon indemnity bonds, tried to the court.

Application filed in the supreme court April 9, 1915, for a writ of mandamus to the superior court for Pacific county, Edward H. Wright, J., for a change of judges.

, entered April 4, 1914, upon findings in favor of the plaintiff, in an action to enjoin the collection of an assessment levied by a fraternal benefit association, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Mitchell, J., entered March 30, 1914, in favor of the defendant, in an action for rescission, tried to the court.</p>

, entered June 16, 1914, in favor of the defendants, upon the pleadings, dismissing an action for damages to property by the construction and operation of a railroad.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered March 30, 1914, in favor of the plaintiff, upon sustaining a demurrer to the affirmative defenses, in an action upon a promissory note, tried to the court.</p>