Volume 86 — Washington Reports

<p>Navigable Waters — Lands Under Water — Rights op Owner— Statute. Under 3 Rem. & Bal. Code, § 8173-1, providing that the water boundary of second-class shore lands on navigable waters, purchased from the state, when not defined in grants theretofore made, shall be the line of ordinary navigation, and upon the lowering of such waters by state or Federal action such water boundary shall thereafter be held to be the line of ordinary navigation as the same shall be found in such waters after such lowering, and granting and confirming all such lands to such purchasers, a grant of shore lands is made in contemplation of a change in physical conditions and that a new line of navigability will be assimilated on a lowering of the waters; but, until that change occurs, the established harbor line is the limit of the fixed title of the shore owners; hence the relative rights of shore owners and occupants of lands in front of the present line of navigability is determined by the granting act supra.</p> <p>Navigable Waters — Improvements — Who Mat Complain. Improvements outside the inner harbor line are presumptively in navigable waters, but, where the state is the only party having a present interest therein, a private abutting owner of the shore lands cannot complain.</p>

<p>Appeal from a judgment of the superior court for Spokane county, ICennan, J., entered July 3, 1913, confirming an assessment roll made by eminent domain commissioners.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered July 9, 1913, against a garnishee, after a trial to the court.</p>

, entered December 1, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor through the explosion of a dynamite cap.

, entered October 16, 1914, upon a trial and conviction of violating the commission merchants’ law, upon overruling a demurrer to the information.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered March 18, 1914, upon findings in favor of the plaintiffs, in an action to vacate a judgment, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Miller, J., entered September 20, 1913, in favor of the defendants, upon sustaining a demurrer to the complaint, dismissing an action to set aside a tax deed.</p>

Motion to dismiss an appeal from an order of the superior court for Spokane county, Kennan, J., entered April 5, 1915, directing the institution of proceedings in the nature of quo •warranto.

<p>Appeal — Decision—Judgment Against Sureties — Bond — Supersedeas. Upon affirmance of a decree of divorce, with modifications as to the division of the property of the parties, requiring a money-judgment against the defendant for attorney’s fees and in lieu of specific property, judgment on the remittitur should be entered against the appellant and his sureties on the appeal and supersedeas bond, where the bond was in the statutory form under Rem. & Bal. Code, § 1722, conditioned to satisfy and perform the judgment or decree appealed from in case it should be affirmed, or any judgment the supreme court may render or order; in view of Id., § 1739, requiring judgments against the sureties for the amount recoverable according to the condition of the bond.</p> <p>Same — Judgment—Correction oe Remittitur. Upon application and with due diligence (five days after filing the remittitur) the supreme court will recall the remittitur to correct an inadvertent omission in failing to direct entry of judgment against the sureties on an appeal and supersedeas bond, upon affirmance of the decree.</p>

, entered February 13, 1914, upon findings in favor of the defendants, in an action for partition and an accounting, tried to the court.

, entered February 13, 1914, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered April 11, 1914, upon a trial and conviction of rape.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 9, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for fraud.</p>

, entered May 22, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for wrongful death.

Application filed in the supreme court April 5, 1915, for a writ of prohibition to the superior court for Franklin county, Linn, J., to prevent the vacation of a judgment.

<p>Appeal from a judgment of the superior court for Yalcima county, Grady, J., entered April 15, 1914, upon findings in favor of the plaintiff, in an action for damages, tried to the court.</p>

<p>Appeal — Decision—Law oe Case — Dicta. Where two issues are presented, decided by the supreme court, the decision on one issue cannot be said to be dictum merely because the decision might have rested on the other.</p> <p>Eminent Domain — Taken or Damaged. The right to make a fill and slope upon lands abutting on a street, is a “damaging” of the property, as distinguishable from a “taking,” as used in Const., art. 1, §16; since where both terms are used, “damaged” covers injuries where there is no direct taking of the land itself.</p> <p>Same — Compensation •— Damages — Evidence — S ufsicienc y. In eminent domain proceedings to condemn the right to fill abutting lands to support a street, in which the court instructed the jury that, in determining the damages, it must be assumed that the defendant would have no right to remove the fill, evidence of two experts that there would be no damage, based on the assumption that the defendant could remove the fill, is insufficient to sustain a verdict of no damages, as the instruction became the law of the case; especially where defendant’s evidence showed actual damages in a substantial sum, and the city filed no stipulation conferring upon the defendant the right to excavate the fill and support the street by a retaining wall or abutment.</p>

, entered March 10, 1914, granting a new trial, after a judgment entered upon findings in favor of the defendants, in an action in tort, tried to the court.

<p>Appeal — Review—Findings. Findings upon conflicting evidence will not be disturbed on appeal, where on trial de novo, the supreme court is unable to say that the evidence does not preponderate against them.</p> <p>Divorce — Division oe Property — Evidence — Sumticiency. Upon granting a divorce to a wife on the ground of cruelty and failure to properly provide for her and the children, an award to the wife of property of the value of $24,800, leaving the husband property of the value of $71,500, will be upheld, where consideration of the needs and circumstances of the parties appears to warrant the division, and the trial court had the advantage of seeing the parties and hearing them testify.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered May 1, 1914, upon findings in favor of the plaintiff, in an action on an indemnity bond, tried to the court.</p>

<p>Husband and Wife — Alienation of Affections — Complaint— Charge of Adultery. In an action for alienation of affections of plaintiff’s wife, the complaint does not charge an act of adultery, where it merely alleges a conspiracy to bring the wife to W. for immoral purposes, and that she occupied a room in a hotel with one of the defendants for about an hour on a certain night.</p> <p>Same — Alienation of Affections — Instructions — Charge of Adultery. In and action for the alienation of the affections of plaintiff’s wife, it is error to give an instruction upon the subject of the commission of adultery when there was no evidence thereof other than proof of opportunity in that the wife had occupied a room with such defendant for about an hour one night, and then retired therefrom; since the rule requires proof of an adulterous disposition on the part of both, as well as proof of opportunity.</p>

<p>Landlord and Tenant — Unlawful Detainer — Conditions Precedent — Provision in Lease — Notice. Demand and notice to quit is a condition precedent to an action against a tenant for unlawful detainer, under Rem. & Bal. Code, § 812, requiring notice and giving three days’ grace thereafter, and the same is not excused by a clause in the lease providing for its termination at the lessor’s option on default in payment of the rent for thirty days after due; nor by the fact that waste is charged.</p> <p>Ejectment — Leased Premises — Expiration of Term. An action of unlawful detainer of leased premises cannot be upheld as an action of ejectment where the term had not expired.</p> <p>Ejectment — Process—Jurisdiction. The special summons authorized in unlawful detainer is insufficient to confer jurisdiction in ejectment.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered October 22, 1914, upon the verdict of a jury .rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered January IS, 1914, upon findings in favor of the plaintiff, in an action upon an accepted order, tried to the court.</p>

, entered May 26, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover money paid.

<p>Fraudulent Conveyances — Husband and Wire — Creditors. Upon an issue as to whether a deed from husband to wife, presumptively fraudulent as to creditors, under Rem. & Bal. Code, § 5229, was made in good faith, unliquidated claims for damages or an existing right of action upon a contingent claim do not stand upon the same footing as would be given to existing acknowledged or contract debts.</p> <p>Same — Husband and Wire — Evidence—Surriciency. Where a husband had no debts except an unliquidated demand, his deeds to his wife and children of certain property, for the expressed consideration of one dollar, are sufficiently shown to have been made in good faith, where it appears that, at the time the houses were built on the lots, it was agreed that one should be given to the children and one to the wife, that the wife had reared and educated the children largely through her own efforts, and with the children had paid back taxes and street assessments, and renewed a mortgage, and she had put in $500 received as a legacy from a friend, and the husband, iiving separate and apart, had contributed but little to the family support; the only suspicious circumstance being that the deeds were not promptly recorded.</p>

<p>Application filed in the supreme court May 15, 1915, for a writ of prohibition to the superior court for Pierce county, Clifford, J., to prohibit the entry of a decree in condemnation proceedings.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered May 27, 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 Chehalis county, Sheeks, J., entered September 16, 1914, upon sustaining a demurrer to the complaint, dismissing an action for breach of contract and for damages.</p>

<p>Appeal from an order of the superior • court for King county, Smith, J., entered October 5, 1914, granting a new trial, after the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Application filed in the supreme court May 22, 1915, for a writ of prohibition to the superior court for Kittitas county, Kauffman, J., to restrain the exercise of jurisdiction in probate.</p>

<p>Municipal Corporations — Public Improvements — Bonds—Conditions — “Supplies.” A bond given by a contractor to secure payment of materials furnished, and of all persons who shall supply the contractor with provisions and “supplies” for the carrying on of the work, in compliance with Rem. & Bal. Code, § 1159, does not cover a sum due for rubber goods, consisting of hose, washers, couplings, belts, tubing, gloves, boots, and overcoats which were entirely worn out in the construction of a steel bridge; since the goods were in the nature of “equipment” and neither “materials” nor “supplies” within the meaning of the act.</p>

<p>Evidence — Parol Evidence — To Vary Writing. Where a written contract for the exchange of properties provided that the plaintiff might elect to take cash instead of a mortgage for the balance due him, it is inadmissible to show a further oral agreement that in case of such election, plaintiff was to execute a deed of his property to enable the defendant to borrow money thereon to make the cash payment; since the same adds a provision to the contract covering a subject-matter mentioned therein.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered April 23, 1914, dismissing an action to foreclose a materialman’s lien, tried to the court.</p>

, entered September 15, 1914, upon findings in favor of the plaintiff, in an action for money loaned, tried to the court.

Application filed in the supreme court April 24, 1915, for a writ of mandamus to compel the superior court for Spokane county, Kennan, J., to sign a judgment in favor of relator.

<p>Appeal from a judgment of the superior court for Mason county, Mitchell, J., entered October 16, 1914, dismissing an application for a writ of review, upon sustaining a demurrer to the petition.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered November 20, 1913, upon findings in favor of the defendant, in an action for conversion, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered March 5, 1914, upon sustaining a demurrer to the complaint, dismissing an action in tort.</p>

<p>Appeal — Decisions Reviewable — Cessation of Controversy — Repeal of Act — Moot Question. In an action to enjoin threatened action by the insurance commissioner, where the only question involved is the constitutionality of provisions of an act which was amended pending the appeal by eliminating the provisions in question, the appeal will be dismissed as involving only a moot question; as it will not be presumed that the commissioner will longer enforce the "eliminated provisions.</p>

<p>Public Lands — Lands Under Waters — Grants—Beds and Shores —Title. Under the Federal grant to the state, and the assertion of title by Const., art. 17, § 1, to the beds and shores of navigable streams, the title of the state is paramount and absolute, and not restricted to the power of regulation for the purposes of navigation.</p> <p>Navigable Waters — Riparian Rights — Title to Beds — Abandonment of Stream. Riparian owners upon a navigable stream acquire no title to portions of the beds and shores abandoned by the state in improving and straightening the stream, under 3 Rem. & Bal. Code, § 8173a, granting to the commercial waterway district the title to the beds and shores that cease to be a part of the stream; since the state’s title is paramount, and riparian rights are subject to the rights of navigation, and extend only to the use and accustomed flow of water, unless new lands result from accretion, reliction, or avulsion.</p>

<p>Stipulations — Effect — Elections — Contests. In an election contest, insufficiency in the pleadings is waived hy a stipulation that the ballots be produced and a recount made by the court.</p> <p>Elections- — -Ballots—Marking—Certainty. A ballot designating the voter’s choice by a cross in the space opposite a candidate’s name is not rendered void for uncertainty by the insertion of a zero in the space opposite the name of the candidate’s opponent; since the voter’s choice reasonably appears from the face of the ballot, under Rem. & Bal. Code, §§ 4905 and 4927, providing for counting such ballots.</p> <p>Same — Ballots—Marking—Distinguishing Marks. The insertion of a zero, opposite the name of the opponent of a candidate, voted for by making a cross in a space opposite bis name, is not such a distinguishing mark as to invalidate the ballot, within Rem. & Bal. Code, §4914; since it does not appear that it was intended as a distinguishing mark or was made in willful violation of the law.</p>

<p>Criminal Law — Appeal—Review—Harmless Error. Error in receiving the statement of a witness that accused first denied his guilt, hut afterwards admitted it, is cured where the witness immediately stated the exact language of the accused.</p> <p>Rape — Evidence—Corroborating Evidence — Stjeetciency. In a prosecution for statutory rape, evidence that accused admitted that he was guilty, after having been accused of the offense by the prosecutrix in the presence of others, is sufficient as corroborating evidence, within the requirement of Rem. & Bal. Code, § 2443.</p> <p>Rape — Instructions—Corroborating Evidence. In a prosecution for statutory rape, under Rem. & Bal. Code, § 2443, requiring corroboration of the testimony of the female, it is not error to instruct that the slightest corroboration may be sufficient if it tends to connect defendant with the commission of the offense.</p> <p>Same. In a prosecution for statutory rape, under Rem. & Bal. Code, § 2443, requiring corroboration of the testimony of the female, it is not error to give an instruction allowing the jury to consider all the evidence, including that of the female, as well as the corroborating testimony, if there is any; since it is only by comparison that its corroborative effect can be determined.</p> <p>Rape — Evidence — Photographs — Admissibility. In a prosecution for statutory rape, in which it appeared that the accused had repeatedly taken the prosecutrix with him on automobile trips, and taken photographs of her and himself in secluded places, the photographs are admissible as evidence of opportunity to commit the offense.</p>

<p>Evidence — Judicial Notice. The supreme court takes notice of the fact that the superior court of King county is composed of several judges.</p> <p>Criminal Law — Trial—Habitual Criminals — Procedure — Different Judges — Sentence. Under Rem. & Bal. Code, § 2178, of the habitual criminal statute, which provides that the court shall . . . before sentence impanel a jury to try the fact of former conviction, the principal case may be tried by one of the judges, and the supplemental charge of being an habitual criminal may be tried by another judge of the same court, although the statute makes no provision for trials by separate judges; and either judge may consider both verdicts in determining the sentence.</p> <p>Same — Habitual Criminals — Sentence. Under Rem. & Bal. Code, § 2178, of the habitual criminal statute, requiring the supplemental charge of being an habitual criminal to be tried before sentence in the principal case, it is not necessary to pronounce judgment before a trial is had upon the supplemental proceeding, although the trials are had before different judges.</p>

, entered July 15, 1914, upon findings in favor of the plaintiff, in an action to foreclose a chattel mortgage, tried to the court.

<p>Evidence — Parol Evidence — To Vary Writing — Ambiguity. A written contract to construct the cement walls of the basement of a building in a “first-class workmanlike manner” is not ambiguous, but has a well defined meaning; hence it is inadmissible to show by parol that the walls were agreed to be so constructed as to prevent water from leaking through them.</p> <p>Contracts — Written Contracts — Modification — Evidence. A subsequent oral modification of a written contract for the construction of a building must be shown by clear and convincing evidence.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered March 21, 1914, upon findings in favor of the defendants, in an action of forcible entry and detainer, tried to the court.</p>

<p>Carriers — Street Cars — Ejection of Intoxicated Passenger— Evidence — Sufficiency. The conductor of a street car is justified in removing an intoxicated passenger where it appears that he repeatedly fell asleep, with his feet extending into the aisle and doorway where passengers must enter, the conductor made unsuccessful efforts to keep him awake, and he fell once or twice into the aisle of the car.</p> <p>Same — Care in Expulsion — Evidence—Question for Jury. Liability for removing an intoxicated passenger from a street car in an unreasonable manner is sustained by evidence to the effect that the conductor took him from the car and dropped him upon the street, and then carried him out of the way of traffic and dropped his head and shoulders upon the sidewalk with his back across the curb, resulting in injury; the question being for the jury where there was conflicting evidence.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $310 for injuries sustained in the ejection of an intoxicated passenger from a street car is not excessive, where the plaintiff, a blacksmith, earning $3.50 a day, claimed' an injury to his back, he did not work for seven or eight weeks, and then received but $3 per day, and there was some evidence of pain and suffering.</p>

Cross-appeals from a judgment of the superior court for Kitsap county, French, J., entered January 17, 1914, in favor of the plaintiff, in an action for an accounting, tried to the court.

<p>” Appeal from a judgment of the superior court for Yakima county, Preble, J., entered April 16, 1914, upon findings in favor of the defendants, in an action to quiet title, tried to the court.</p>

, entered June 24, 1914, upon findings in favor of the defendant, dismissing an action for personal injuries sustained by a minor while playing with a scraper, after a trial to the court without a jury.

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered July 14, 1914, upon a trial and conviction of violating an ordinance relating to gambling.</p>

<p>PLEADINGS'-VABIANCE-FAILURE OE PEOOE-ISSUES, TBIAL AND Judgment. In an action to recover money paid to an attorney through deceit and a conspiracy, submitted on the evidence taken in a similar case, it is error, upon finding that there was no deceit or fraud and that the issue presented by the complaint had not been proved, to give judgment for the plaintiff upon the theory of an excessive charge for services, paid by plaintiff when unduly prevailed upon; since an amendment without consent of either party, on failure of proof, is error, in view of Rem. & Bal. Code, § 301, providing that it shall not be deemed a variance, but a failure of proof, if the cause of action or defense is not proved in some particulars only, but in its entire scope and meaning.</p>

<p>Bills and Notes — -Accommodation Notes — Consideration. Where the state hank examiner had required a bank to collect overdue interest on a note or charge the note off, and officers of the bank gave notes to take up the interest in order to satisfy the examiner, their notes must, in law, be considered as an accommodation for the makers of the note, and not for the accommodation of the bank; hence there was a sufficient lawful consideration therefor.</p> <p>Same. The indorsement of the interest on the note by the bank was a waiver of a present right of action against the maker and a sufficient consideration for the officer’s notes for the overdue interest.</p> <p>Bills and Notes — Vapidity—-Illeqal Purpose — Other Consideration. An unlawful agreement that officers of a bank should give notes for the amount of overdue interest on a note held by the bank, in order to deceive the state bank examiner, without being liable to the bank, does not invalidate their notes, as between the parties, where there was a lawful consideration therefor, the sum being intended as payment of the overdue interest and indorsed on the note as such.</p>

<p>Dismissal and Nonsuit — Failure to Amend — Issues Undetermined. Where the plaintiff alleged three several items of damages from breach of contract, and was ordered to make the complaint more definite and certain in one particular only, it is error, on motion to strike the amended complaint for failure to properly comply with the order, to dismiss the action, since an issue was tendered as to the other items.</p> <p>Appeal — Orders Reviewable — Demurrer—Final Orders. Where a motion to strike an amended complaint alleging three several items of damages from breach of contract was treated and argued as a demurrer to one of the items only, the supreme court will not review the judgment thereon, so long as any issue tendered has not been disposed of on the merits.</p> <p>Dismissal and Nonsuit — Failure to Amend — Issues. Where a motion to strike an amended complaint alleging two several items of damage was treated as a demurrer to one of the items, failure to plead over does not subject the plaintiff to a dismissal, as for contumacy in refusing to comply with the order to strike; since he was entitled to go to trial on the remaining items.</p> <p>Appeal — Decisions Appealable- — -Amount in Controversy. An appeal from a judgment dismissing an action, for contumacy in failing to comply with an order to strike one item of the complaint, will not be dismissed as involving only costs and less than $200, where there was real error, in that other parts of the complaint tendering an issue were improperly disposed of.</p>

<p>Larceny — Corpus Delicti — Evidence—Suebtciency. In a prosecution for the theft of money belonging to C., the corpus delicti is sufficiently shown by proof that the money was in the trunk where C. had placed it that morning, that it was not there at noon and had been removed by some person other than C.</p> <p>Same — Evidence—Sueeiciency. Where the theft of money belonging to C., who had left the state, is established by the testimony of other witnesses that C. and detectives had opened and searched the trunk in which the money had been placed, and failed to find it, proof that C. had made “complaint” or accused any particular person is not essential.</p> <p>SAME-rEVIDENCE-SUEEICIENCY-CONEESSIONS-CORPUS DELICTI.</p> <p>Upon a prosecution for the theft of $480 that was kept in a trunk, the fact that, when the defendant was arrested on the same day in another city, he had $67.50 and some articles that had been in the trunk that morning, and that defendant told the officer that he took only $50, but did not get it from the trunk, but from a dresser, is admissible and sufficient to make a case for the jury; a defendant’s confession, along with other evidence, being admissible to establish the corpus delicti.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Grady, J., entered January 19, 1914, upon findings in favor of the plaintiff, in an action for damages, tried to the court.</p>

<p>Municipal Cobpobations — Claims—Pbesentation — Pleading. A complaint for damages against a city showing that the claim therefor was not presented within the thirty days prescribed by the city charter, is demurrable.</p> <p>Same — Claims—Piling—Waived. The fact that a city council considered and rejected a claim that was not filed within the time allowed by the city charter does not show a waiver of the provision relative to the presentation of claims.</p> <p>Same — Claims—Piling—Statutes—Validity. The provision of a city charter requiring all claims for damages against the city to be filed with the clerk within thirty days after the time when such claims accrue, is not inoperative because of the hardship it would work if given effect.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered September 26, 1914, upon findings in favor of the plaintiff, in garnishment proceedings, tried to the court.</p>

<p>Telegraphs and Telephones — Franchises — Power to Grant— Conditions — Statutes—Construction. A city of the first class has power to grant a telephone franchise for the use of the city’s streets and alleys, with any lawful conditions attached against sales or transfers to other companies without the consent of the city, or for forfeiture upon nonperformance of its undertakings, under Rem. & Bal. Code, § 7507, subd. 7, empowering first class cities to regulate and control the use of streets and alleys and to authorize or prohibit the use of electricity at, in or upon them, and to prescribe the terms and conditions upon which the same may be used and to regulate the use thereof.</p> <p>Same — Franchise—Power to Grant — Statutes—Implied Repeal. Rem. & Bal. Code, § 7507, subd. 7, empowering cities of the first class to grant telephone franchises for the use of its streets and alleys, was not impliedly repealed by the enactment of the general telephone franchise act of 1890, Id., § 9300 et seq.</p> <p>Same — Franchises — Conditions — Acceptance. Where a telephone franchise with attached conditions was accepted by the grantee, the franchise itself would be unauthorized if the qualifications and conditions imposed were beyond the power of the city, except as the terms and conditions are deemed subject to the general law.</p> <p>Same — Franchises—Conditions Against Alienation — Validity— Public Policy. A condition in a telephone franchise ordinance that the grantee shall not sell or transfer the franchise or telephone system, except to a corporation to be organized by the original grantee, and expressly forbidding the transfer to any other telephone company without the consent of the city, evidently intended to maintain competition and prevent monopoly, is not void as against public policy, nor ultra vires.</p> <p>Same — Franchises—Conditions Against Alienation — Mortgages —Involuntary Sale. A condition in a telephone franchise ordinance that the grantee shall not sell or transfer the franchise or telephone system, except to a corporation to be organized by the original grantee, and expressly forbidding the transfer to any other telephone company without the consent of the city, is not violated, and a cause of forfeiture does not arise, by the giving of a voluntary mortgage, followed by an involuntary foreclosure and sale under which another telephone company acquired the franchise and telephone system; in view of Rem. & Bal. Code, § 520, which provides that franchises may be mortgaged and sold under execution or foreclosure, and Const., art. 12, § 8, providing that no corporation shall alienate any franchise so as to relieve the franchise or property from the liabilities of the grantee.</p> <p>Same — Fbanchise — Fobeeittjbe■ — -Compliance With Conditions. A telephone franchise ordinance, referring in the first section to an automatic telephone system, but in the granting clause authorizing the grantee to use the streets for the transmission of sounds and conversation by electricity, and to construct an automatic telephone system, and a telegraph system, does not require the grantee to operate an automatic system exclusively; and abandonment of the automatic feature for a manual system is not ground for the forfeiture of the franchise for failure to comply with its terms; forfeitures being abhorred in the law and avoided if possible.</p> <p>Same. In such a case, the failure to furnish the city with sixty automatic telephones and desk extensions as provided in the ordinance, would not be ground for forfeiture of the franchise, where the grantee was furnishing the city with the required number of manual telephones.</p>

<p>Contracts — Performance or Breach — Evidence — Admissibility. Upon an issue as to whether a shortage in a salmon pack was due to the fault of the plaintiff and his crew of packers, or to the failure of the defendant’s machinery and equipment which he had agreed with plaintiff to furnish and' keep in repair, evidence as to the defective and worn-out condition of the machinery at the beginning of the season and describing its then condition, and that it frequently broke down and failed to work properly, is admissible as tending to show defendant’s breach of contract.</p> <p>Same — Performance or Breach — Admissions Against Interest— Statement of Agent. In such á case, evidence of the statement made by defendant’s cannery foreman in charge of the plant, upon plaintiff’s complaint as to the defective condition of the machinery, that it was left in bad condition the year before, and “no man in the United States could fix it,” is an admission of defendant’s alter ego against interest, and is not inadmissible as a mere expression of opinion.</p> <p>Pleadings — Variance —Materiality — Showing. A variance in the admission of evidence tending to somewhat broaden the scope of the issues is nonprejudicial, where ño continuance was demanded and no showing made that the party was misled to his prejudice, in view of Rem. & Bal. Code, § 299, providing that no variance shall be material unless it actually misleads the party to his prejudice, and providing that the fact shall be shown to the satisfaction of the court, and for amendments to the pleadings on such terms as may be just.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered February £6,1914, iipon findings in favor of the plaintiffs, in an action for an accounting, tried to the court.</p>

<p>Appeal from an order of the superior court for King county, Ronald, J., entered September 12, 1914, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action for fraud.</p>

<p>Judgment — Collateral Attack. Judgment in an action of replevin, by a court of a sister state having jurisdiction of the subject-matter and of the person of the only defendant named as vendee in a bill of sale of the property, which determined the title to the property to he in the plaintiff, cannot be collaterally attached by one claiming to have an interest with defendant as one of the vendees, even though the judgment be erroneous.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Smith, J., entered February 7, 1914, in favor of the plaintiffs, in an action for partition, and to vacate a deed, tried to the court.</p>

<p>Trial — Province of Court and Jury — Directins Verdict or Judgment. A directed verdict, or judgment notwithstanding the verdict, can only be granted where the court can say, as a matter of law, that there is neither evidence, nor reasonable inference from evidence, to sustain the verdict of the jury.</p> <p>Principal and Agent — Authority of Agent — Implied Authority • — Evidence—Sufficiency. The evidence warrants a finding that an agent and bookkeeper of a firm of railroad contractors had implied authority to sell scrap iron, where it appears that he had repeatedly sold scrap iron from his employer’s yards to the same purchaser, who on one occasion had been authorized to negotiate with the agent therefor; and it is immaterial that the agent absconded without accounting for the proceeds.'</p> <p>Trial — Instructions—“Preponderance of Evidence.” It is not error to instruct as to the preponderance of the evidence, that what is meant is the best evidence — that which appeals to the jurors’ intelligence as being the most probable, and as establishing certain facts.</p> <p>Principal and Agent — -Authority of Agent — Evidence—Custom. Upon an issue as to the authority of an agent and bookkeeper for railroad contractors to sell scrap iron, it is not admissible to prove a custom or usage in that city for railroad contractors generally to have a man in charge of the office authorized to sell and dispose of such material; in view of the fact that the contractors were not merchants or engaged in trade.</p> <p>Principal and Agent — Authority of Agent — Implied Authority —Instructions. Instructions, considered as a whole, held to properly state the rules relating to the apparent or implied authority of an agent of railroad contractors to sell scrap iron to one who had previously made purchases from such agent.</p> <p>Appeal — Review—Discretion—New Trial. The discretion of the trial court in refusing to grant a new trial will not be disturbed on appeal, where there was some evidence and inferences from evidence sufficient to warrant the verdict.</p>

<p>Chattel Mortgages — Validity—Failure to Record. A chattel mortgage which was not filed as required by law until ten months after the death of one of the mortgagors, at which time the property had passed to the administratrix, is void as to creditors.</p> <p>Same — Validity—Persons Entitled to Attack. Creditors who have not acquired a specific right to or lien upon mortgaged chattels cannot question the validity of the mortgage as between the parties thereto.</p> <p>Same. In view of Rem. & Bal. Code, § 1483, providing that a judgment against an administrator only establishes the claim, and does not create a lien upon the property of the estate, creditors whose claims have been allowed and established have no such right to, or lien upon, chattels mortgaged by the deceased as to be entitled to question the validity of the mortgage as between the parties thereto.</p> <p>Same — Foreclosure—Transfer. Upon a judgment of foreclosure, a chattel mortgage is merged in the judgment and has no further validity.</p> <p>Judgment — Bar—Motion to Vacate — Collateral Attack. An order denying a motion to vacate a judgment is a bar to a subsequent proceeding by motion or independent action seeking the same relief; and the bar would be applicable to creditors of an estate who were not parties hut had the right to appear in the action against the administratrix and move for the relief afterwards sought by them in an independent action.</p> <p>Fullerton, J., dissents.</p>

<p>Insurance — Accident Insurance — Policy—Waiver oe Conditions —Acceptance of Overdue Premiums. An accident policy did not lapse for failure of the insured to pay the premium monthly in advance, as required by the policy, where it appears that the insurance company employed a collector who for three years had called on the first day of the month or shortly thereafter and collected and receipted for the premiums; that the money was always ready for him when he called, and was ready on the first day of the last month, but the collector did not call for it until the third of the month, the insured having died the day before; since a course of conduct had been established upon which the insured had a right to rely.</p>

, entered October 4, 1913, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee engaged in railroad construction work.

<p>Taxation- — Public Lands — Right to Patent — Conditions Pbecedent — Equitable Title. No equitable title passes to a purchaser of government lots in the townsite of Port Angeles upon his paying the price and taking receipt therefor, until after performance of the condition precedent relating to improvements, and until then the lots are not subject to taxation; under 34 U. S. Stat. at L., ch. 2077, p. 167, which provides that no patent shall issue to any lot until the purchaser has proven to the satisfaction of the secretary of the interior that he has expended $300 in permanent improvements on each lot purchased.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Webster, J., entered April 7, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.

<p>Assignments — Proceeds of Crop Sale — Agreement—Trust—Evidence — Sufficiency—Consideration. Where a cropping tenant, indebted to his landlord on a promissory note, and to a warehouseman for sacks, stored the crop of wheat in the warehouse and deposited the warehouse receipts in a bank where the tenant’s note was held as collateral, and these parties, together with others claiming the right to liens for harvesting the crop, got together and agreed that the wheat should be sold, which was done, and part payment made by check to the bank holding the wheat receipts, one-third of which was supposed to belong to the tenant, the fact that the memorandum of sale of the wheat was made by the tenant as his own wheat, instead of for his creditors, does not show that there was no assignment of the fund or trust for the labor claimants for harvesting, where it further appears that it was cust&mary for the grower to make the sale of his own wheat, that, the indorsed wheat receipts were delivered to the tenant for that purpose, that he was to bring the money to the bank for distribution, and in the settlement the labor claims for harvesting were spoken of as being the first to be paid; the relation of debtor and creditor being sufficient consideration for the understanding to pay such labor claims.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered November 2, 1914, upon findings in favor of the defendant, dismissing an action in tort, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered September 12, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in alighting from a street car.</p>

<p>New Trial — Misconduct of Juey — Impeachment of Yeedict. It is proper to deny a new trial for misconduct of tlie jury in tlie jury room, shown by affidavits of two of the jurors who did not agree to the verdict, in that certain jurors gave improper reasons for their verdict, and that one of them was sick and agreed to the verdict for that reason, and that one had signaled to a woman in another office, where, so far as not contradicted, they were statements of facts which inhere in the verdict and could not be considered.</p>

<p>Eminent Domain — Right to Condemn- — Counties—Statutes. A county may construct permanent highways through the corporate limits of cities of the third and. fourth class and for that purpose condemn the necessary right of way, where the city by ordinance has authorized it, under 3 Rem. & Bal. Code, §§ 5879-18 and 5879-19, providing that the county may construct such roads, and pay or aid the city to pay for the condemnation of rights of way, if the city is unable to pay for the same, and Id., § 5879-8, providing that the county commissioners, when necessary for straightening ... or improving any permanent highway, may take the necessary right of way by condemnation proceedings.</p>

<p>Appeal from a judgment of the superior court for Clallam county, Ralston, J., entered February 3, 1914, dismissing an action to enjoin an execution sale, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for What-com county, Pemberton, J., entered June 2,1914, upon agreed facts in favor of the garnishee defendant, dismissing garnishment proceedings.</p>

<p>Husband and Wife — Community Property— Public Lands — Homestead Entry. Lands patented to a married man who made homestead entry while single, are his separate property.</p>

<p>Election op Remedies — Vendor and Purchaser — Contract — Breach — Inconsistent Concurrent Actions. Where a vendor brought suit for the first installment due upon a contract for the sale of land, and prior to trial, prosecuted to judgment a second suit to forfeit the contract and quiet title for nonpayment of the second installment, the second action was an election of remedies and an abandonment of the previous pending action for the securing of unpaid purchase money; since the remedies were inconsistent and cannot be presented concurrently as accumulative remedies.</p>

<p>Municipal Corporations — Claims — Requisites — Residence oe Claimant — Statutes. Rem. & Bal. Code, § 7995, providing that every claim for damages sounding in tort against a city of the first class, filed in compliance with valid charter provisions of the city, shall contain a statement of the actual residence of the claimants at the date of presenting and filing such claim and for six months immediately prior to the time the claim accrued, is substantially complied with — and that is all that is required — by a notice stating the claimant’s residence at the date of the verification and for at least six months prior thereto, when both verified and filed within thirty days after the claim accrued; the presumption being that the residence remained the same until the day of filing, and all the purposes of the statute being thereby fulfilled.</p>

<p>Appeal — Review—Presumptions. Upon appeal, a judgment non obstante veredicto will be presumed to have been entered upon the grounds stated in the motion, in the absence of any indication to the contrary.</p> <p>Pleadings ■ — ■ Issues, Proof and Variance — Failure of Proof— Food — Sales of Impure Food. In an action for damages through the alleged negligent sale of impure food, a verdict for the plaintiff cannot, in the absence of any evidence of negligence, be sustained upon the theory of liability under the pure food law, where there was no issue in the pleadings founded upon that act.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered September 12, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered November 26, 1913, upon granting a nonsuit, dismissing an action on contract.</p>

<p>Corporations — Stock—Pledge of Stock — Evidence—Sufficiency. A pledge of mining stock as collateral security for advances made by one bank to another is sufficiently established by an indefinite oral agreement to the effect that the stock, left in possession of the pledgee, was to be held to protect the pledgee for advances made to the pledgor .pending negotiations for an extensive credit or permanent loan, which failed of consummation; especially in view of the subsequent attitude of receivers of the pledgor, in litigation with the pledgee, whereby the receivers established by a judgment that the advances were made solely in consideration of such pledge of the stock as collateral security, which exceeded in value the amount of the advances; and thereafter, by virtue of such judgment and claim of collateral, the receivers contracted with the pledgee with reference to the stock on the assumption that it had been pledged and was held as collateral.</p> <p>Judgment — Res Judicata — Matters Concluded. Where receivers of an insolvent bank impounded money in transit that had been sent to a creditor bank to apply on overdrafts and advances, a judgment in favor of the receivers, based on their claim that the advances had been made on the sole consideration of mining stock theretofore pledged therefor and then held by the creditor bank as collateral security exceeding in value the amount of the advances, is conclusive that the mining stock had been pledged by the insolvent as collateral for the advances, and precludes the receivers from making a contrary claim in subsequent litigation to foreclose the pledge.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered February 14, 1914, upon a trial and conviction of incest.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered April 11, 1914, upon findings in favor of the defendants, dismissing a will contest, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered March 24, 1914, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

, entered October 23, 1914, upon findings in favor of the plaintiff, in an action to enjoin interference with a fishing location, tried to the court.

<p>Trial — Findings op Fact — Necessity. In an action at law in which issues of fact are tried out on the merits before the court without a jury, findings of fact are necessary to support the judgment; under Rem. & Bal. Code, § 367, providing that, upon the trial of an issue of fact by the court, its decision shall be given in writing, with the facts found and the conclusions of law separately stated.</p> <p>Same — Findings op Fact — Waiver. Findings of fact, necessary to support a judgment in an action at law tried to the court on the merits, are not waived by appellant’s failure to reguest such findings as the court is willing to make, after having denied plaintiff’s requested findings.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered February 4, 1915, upon findings in favor of the defendants, dismissing an action to secure the reduction of a tax, tried to the court.</p>

, entered September 1, 1914, upon findings in favor of the defendant, in an action upon an indemnity bond, tried to the court.

<p>Judges — Powers—Exercise Beyond Territorial Limits — Visiting Judges. Rem. & Bal. Code, § 42, expressly authorizes a judge of one county who sits in a case in any other county out of the district to determine the cause and render judgment in any other county in the state.</p> <p>Judgments — Time for Rendition — Delay. Delay in moving for judgment after the court has announced its conclusions does not work a loss of jurisdiction, the adverse parties having remained silent.</p> <p>Prohibition — To Courts — When Lies — Jurisdiction. Since prohibition does not lie to arrest the erroneous exercise of acknowledged jurisdiction, the remedy being by appeal, it will not issue to a judge who has. been given jurisdiction to enter a judgment to restrain him from erroneously determining an issue which it was not intended to submit to him.</p> <p>Judges — Jurisdiction—-Visiting Judges — Loss of Jurisdiction. In a receivership proceeding, in which issues had been referred to a visiting judge for trial, subsequent proceedings and orders in the receivership by the regular judge, such as acting on claims, does not deprive the visiting judge of the power to act upon the matters submitted to him.</p>

<p>Criminal Law — Appeal—Preservation of Grounds — Exceptions to Instructions. Error cannot be based upon tbe refusal or failure of the trial court to give an instruction on tbe subject of tbe testimony of an accomplice, where tbe record fails to show any exceptions called to tbe attention of tbe court at or before tbe motion for a new trial was beard.</p> <p>Criminal Law — Trial — Misconduct of Counsel — Argument. Prejudicial error cannot be based on misconduct of state’s counsel in argument to tbe jury wbicb did not pass beyond tbe bounds of legitimate argument, and much of wbicb was called out in reply to improper argument on tbe part of counsel for accused.</p> <p>Criminal Law — Evidence—Accomplices—Corroboration. A conviction may be sustained on tbe uncorroborated testimony of an accomplice, without any precautionary instruction, if none was requested.</p> <p>Appeal — Statement op Pacts — Certificate — Supplemental Statement. A mandate to the trial court to correct or supplement its statement of facts, being discretionary, will not be issued where there is no reasonable certainty that tbe appellant is being denied any rights; as when it appears that tbe trial judge refused a supplemental statement as to tbe taking of alleged exceptions, on tbe ground that be did not so remember tbe facts, and that there was no record from wbicb tbe truth could be ascertained; especially where there was lack of diligence in seeking tbe mandate.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered August 17, 1914, upon findings in favor of the plaintiffs, in an action for equitable relief, tried to the court.</p>

<p>Corporations — Transfer of Stock — Assignment—Consideration. A credit on a loan to the assignor, is sufficient consideration for an assignment of mining stock, and it would be a sufficient consideration that the assignment was made as partial security for the loan.</p> <p>Principal and Agent — Proof of Agency — Statements of Agent. Neither the fact of agency nor the extent of the agent’s authority can be proved by admissions or declarations of the agent to third persons in the absence of the principal.</p> <p>Witnesses — Examination—Reiteration. It is not error to curtail the examination of a witness by excluding reaffirmations of his former testimony.</p> <p>Appeal — Review—Harmless Error. On a trial de novo, the improper exclusion of a letter which is in the record, is harmless error.</p> <p>Insane Persons — Actions Against — Guardians—Process. Under Rem. & Bal. Code, § 1670, authorizing service of process upon the guardian of an incompetent, an action against an incompetent may be brought in form, and entitled in the caption, against the guardian as such.</p> <p>Same — Actions Against — Limitation. Rem. & Bal. Code, § 1477, requiring suits on claims against estates of decedents within three months after rejection of the claims does not apply by analogy to claims against the estate of an incompetent person, and the same are not barred three months after rejection.</p> <p>Pleading — Admissions—Failure to Deny. A general allegation that defendant was the duly, appointed, qualified and acting guardian of an insane person, not moved'against or denied, sufficiently establishes the guardianship.</p> <p>Pleading — Answer—-Admissions. An answer to a specified paragraph of a complaint, admitting that a claim against a guardian was presented and rejected, and denying that any sum was due, is a sufficient admission of the presentation and rejection of the particular claim alleged in such paragraph.</p> <p>Insane Persons — Actions—Authority of Guardian — Admissions. The guardian of an incompetent person, defending an action on a claim against the estate, has power, when acting in good faith, to admit the presentation and rejection of a claim therefor, the facts being within the personal knowledge of the guardian.</p> <p>Husband and Wife — Guardians—Actions — Judgment — Community or Separate Debt. A judgment upon a community debt against the wife of an insane person “as guardian of the estate of her husband, M. . . . and against the marital community” of the two is not a personal judgment against the wife enforcible against her separate estate.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered March 14, 1914, upon the verdict of a jury rendered in favor of the defendant, in an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered December 31, 1914, upon findings in favor of the defendant, in an action to quiet title, tried to the court.</p>

<p>Fraudulent Conveyances — Between Husband and Wife — Gift or Preference. Where a husband conveyed all his community property to a corporation, formed for the purpose of holding it for his wife, who was the sole stockholder, equity will look to the intent, and regard it as a gift to the wife, rather than a preference, where the value of the property is so disproportionate to the alleged claim of the wife as to constitute a badge of fraud.</p> <p>Same — Title of Fraudulent Grantee. In such a case, the wife, whether in person or by the corporation, is presumed to be a trustee, holding the legal title for the community.</p> <p>Same — Burden and Degree of Proof. As against creditors of the husband, the burden of establishing the good faith of his conveyance to his wife is upon the party asserting the good faith, under Rem. & Bal. Code, § 5292; and the proofs must be clear, cogent, and convincing.</p> <p>Fraudulent Conveyances — Transaction Between Husband and Wife — Evidence—Sufficiency. A transaction whereby a husband and wife, just prior to entry of judgment against them on a community debt in the sum of $2,700, formed a corporation, in which the wife was the sole stockholder, and conveyed to it all their community property together with separate property of the wife, all of the estimated value of $12,000, for the purpose, as claimed, of raising money to pay the husband’s debt of about $1,300 and to secure the wife for $3,200 rents of her separate property collected by the husband, must be regarded as a conveyance by the husband to the wife, and the burden of establishing the good faith of the transaction, as upon a sufficient consideration, by clear, cogent, and convincing evidence, is not met, where it appears that the property, if pledged at all, was pledged only as security for the $1,300 indebtedness, evidenced by a note which was a community debt, that the husband could give no accounting of the rents claimed to have been received, all or part of which were disbursed for living and family expenses for which the wife was primarily liable, the corporation was managed by the husband, and the wife did not testify in her own behalf; especially in view of the badge of fraud in that the value of the property transferred was disproportionate to the sum for which it was alleged to be pledged.</p>

<p>Cross-appeals from a judgment of the superior court for Clallam county, Ralston, J., entered March 5, 1914, upon findings in favor of the defendants, in an action on a receiver’s bond, tried to the court.</p>

<p>Appeal from an order of the superior court for King county, Humphries, J., entered March 2, 1914, upon findings in favor of the plaintiff, reinstating a judgment after an invalid execution sale, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheets, J., entered March 21, 1914, in favor of the defendants, in an action for an accounting, tried to the court.</p>

<p>Payment • — ■ Presumption — Remittance by Mail — Ownership. Where a bank, upon request, delivered money in the mails by registered letter, addressed to the consignee, in the absence of any agreement or custom to that effect, there is no presumption that the carrier is the consignee’s agent, but the presumption is that the money belongs to the sender until actually delivered to the consignee; the transaction being more in the nature of a payment than a consignment of goods and the creditor having the right to payment in person.</p> <p>Replevin — Ownership op Property- — Defenses—Title in Third Person — Estoppel. Where a bank, upon request, delivered money in the mails by registered letter, addressed to the consignee, and it was stolen in transit and the bank sued to recover it, the defense of ownership by the consignee is unavailable, where the consignee had appeared as a witness on behalf of the bank and estopped himself from claiming title to the money.</p> <p>Replevin — Ownership—Evidence — Sufficiency. Evidence that $2,500 was stolen from a registered mail package, intrusted to a Japanese, who made various purchases and was about to depart for Japan under suspicious circumstances, held sufficient to establish, in an action of replevin, that he stole the package, where his explanation of the possession of so much money was improbable.</p> <p>Same. In an action of replevin, evidence that the purchaser of articles stole, from the United States mails, money of certain denominations a few days before the purchases, and paid therefor with money of the same denominations, sufficiently establishes that the articles were purchased with the stolen-money, in the absence of a showing that he had other money of like denominations.</p> <p>Same — Ownership—Bona Pide Purchaser — Knowledge of Theft. An attorney, securing from his client, charged with the theft of money, a bill of sale of articles recently purchased, cannot claim that he had no knowledge that the articles were purchased with the ■stolen money, where the bill of sale was made three days after the arrest of the client, and after attending the preliminary hearing at which the client was bound over to await the action of the grand jury.</p>

<p>Appeal — Review—Verdict. Where there is conflict in the evidence, the facts are for the jury, and unless physically impossible or naturally improbable so that reasonable minds could not differ thereon, the supreme court accepts as conclusive the fact necessarily resolved by the jury in respondent’s favor.</p> <p>Municipal Corporations — Streets—Negligent Driving — Contributory Negligence — Instructions. In an action for injuries sustained by pedestrians struck by an automobile, in the nighttime, where plaintiffs stopped and looked in all directions before starting to cross a street in the middle of the block and saw no car approaching and were struck by a car carrying insufficient lights, which it was impossible to see any distance, and the plaintiffs did not see the car until about six feet away, it is proper to refuse an instruction that plaintiffs were guilty of contributory negligence in crossing the street in the middle of the block in case the view was unobstructed and the car carried ordinary lights; since the instruction was not based upon the evidence.</p> <p>Same. In such an action, evidence to the effect that, when plaintiff first saw the car, it veered to the east and he assumed it would pass to the east of him, when it suddenly veered to the west, does not warrant an instruction based on the fact that plaintiff assumed that the car would pass down an east driveway contrary to the law of the road, since there was no evidence of any such assumption on his part.</p> <p>Same — Streets—Negligent Use — Contributory Negligence — Acts in Emergency — Question for Jury. Where a rapidly approaching automobile, but a few feet distant, first veered to the east, and then suddenly veered to the west, striking the plaintiffs, head on, before they could move, the question of their contributory negligence in endeavoring to get out of the way in the emergency is for the jury.</p> <p>Same — Streets—Negligent Use — Failure to Sound Horn — Question for Jury. In an action for personal injuries in running down pedestrians on a dark night, with an automobile going 25 miles an hour, having no headlights as required by ordinance, whether defendant was negligent in not sounding a horn in the middle of a dark block, is a question for the jury, the ordinance requiring the sounding of warning where danger exists to any person in or upon the street.</p> <p>Same — Streets—Negligent Use — Contributory Negligence' — Instructions. In an action for personal injuries sustained by pedestrians, struck by an automobile, an instruction that the plaintiffs were guilty of contributory negligence in crossing the street in the middle of the block, in case they could with reasonable diligence have discovered the approaching car with its side lights burning, is properly refused where it ignored evidence that the car was not sufficiently lighted and could not have been seen at that distance, and that plaintiffs looked but could not see the car until the car, approaching at twenty or twenty-five miles an hour, was within ten or fifteen feet from them; especially where other instructions stated the law as favorably to the appellants as it could be.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $4,000, reduced by the trial court to $3,000, for severe cuts, bruises, and personal injuries sustained by a man and wife, causing much pain and suffering and permanent injuries to the wife’s back, knee, and nervous system, when they were struck by an automobile going twenty or twenty-five miles an hour, and thrown and dragged thirty or forty feet, although seemingly large, will not be set aside on appeal as excessive where it cannot be said to be the result of passion or prejudice or any illegal influence.</p>

<p>Appeal — Review—Findings. In actions tried to the court without a jury, legal or equitable, there must be a trial de novo on the record, and the judgment will be affirmed only when the supreme court is satisfied that the evidence does not preponderate against the findings.</p> <p>Vendor and Purchaser — Sale of Land — Fraud—Evidence—Sufficiency. In an action for rescission of a trade on the ground of defendant’s fraud in falsely representing that 310 acres of his land was cultivated, findings for the defendant are sustained by his testimony and that of two other witnesses to the effect that defendant represented that there were about 310 acres cultivated, that it had never been measured and he did not know its exact area, but had bought it for that, and that plaintiff became suspicious and on that account demanded and received considerable additional personal property in the trade.</p>

<p>Receivers — Appointment — Notice. An order appointing a receiver without notice, and without limiting the appointment to a day certain fixed by the court upon which a hearing can be had, is without jurisdiction and void.</p> <p>Same — Appointment—Proceedings—Yaridity—Estoppel. Where an order appointing a receiver without notice was void for want of jurisdiction, a motion to quash the order of appointment, and acquiescence in the order of the court denying the motion, does not estop the party from questioning the subsequent acts of the court in issuing a writ of assistance to put the receiver in possession; since the appointment being void, the court was without jurisdiction to issue the writ'of assistance.</p>

<p>Appeal from a judgment of tbe superior court for King county, Tallman, J., entered January 31, 1914, upon findings in favor of the defendants, in an action on a promissory note, tried to the court.</p>

Cross-appeals from a judgment of the superior court for King county, Frater, J., entered November 4, 1914, in favor of the plaintiff, in an action for an injunction, tried to the court.

, entered October 10, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Corporations — Representation—Contracts—Officers—Personal Liability — Evidence—Ambiguity—Parol Evidence. Where a guaranty of the payment of drafts was written on the letter-head of a hank showing the names of its officers, and was signed “O. B. Woolley, manager,” hut contained nothing to show that the hank was bound, it is prima facie the personal undertaking of Woolley on the theory that “manager” was only descriptio personae; but the fact that it was written upon the letter-head and the word “manager” attached, creates sufficient ambiguity to admit of parol evidence to overcome the presumption, the burden being upon plaintiff in an action on the guaranty.</p> <p>Same — Representation—Contracts—Officers—Personal Liability. The fact that the manager of a bank had no authority to guarantee drafts on behalf of the bank, is some evidence that he did not intend to bind the bank in giving a guaranty on a bank letterhead and appending his official title of “manager” after his signature.</p> <p>Guaranty — Consideration—Evidence — Sufficiency. Consideration moving to a bank for a guaranty, by its manager, of drafts to be made by a mining company, is not shown by a prior agreement made by the manager with two of the persons interested in the mining company, and who were owners of a mill company that was largely indebted to the bank, whereby such owners agreed, upon selling their interests in the mining company to pay over the proceeds of such sale to the bank or its manager; especially where the existence of such agreement was kept secret from the hank’s officers, and was not mentioned in the guaranty, and the guaranty was not given because of it.</p> <p>Fullerton, X, dissents.</p>

, entered October 24, 1914, upon sustaining a demurrer to the complaint, dismissing an action to compel the destruction of certain photographs and to enjoin the retention and distribution thereof, tried to the court.

, entered October 31, 1914, adjudging a public use and awarding damages in condemnation proceedings, tried to the court and a jury.

Appeals from orders of the superior court for King county, Frater, J., entered March 13, 1915, determining the claims of creditors in proceedings to wind up the affairs of an insolvent corporation.

<p>Appeal from a judgment of the superior court for Benton county, Holcomb, J., entered May 11, 1914, upon the verdict of a jury rendered in favor of the plain tiffs, in an action for damages.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered March 5, 1914, upon findings in favor of the defendant, in an action by an administrator to recover property as assets of an estate.</p>

, entered September :26, 1914, upon granting a nonsuit, dismissing an action to recover broker’s commissions, tried to the court and a jury.

<p>Certiorari to review an order of the superior court for King county, Mackintosh, J., entered August 7,1914, granting a change of venue.</p>

, entered October 9, 1914, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.

<p>Mortgages — Foreclosure — Attorney’s Fees — Statutes. Upon the foreclosure of a mortgage securing the payment of a principal sum and interest according to the terms and conditions of two certain promissory notes, which notes provided for a reasonable attorney’s fee, the superior court is authorized to fix a reasonable sum for attorney’s fees to be included in the judgment and made a lien upon the mortgaged property; in view of Rem. & Bal. Code, § 474, which provides that the compensation of attorneys shall be left to the agreement of the parties, with allowances to the prevailing party of certain sums for expenses as costs, and § 475, providing that, in all cases of foreclosure of mortgages, the amount thereof shall be fixed by the court at such sum as the court deems reasonable, any stipulation in the note or mortgage to the contrary notwithstanding, but the fee in no case to be fixed above the contract price stated in the note and mortgage.</p>

, entered June 9, 1914, upon findings in favor of the defendants, in an action upon an insurance policy, tried to the court.

, entered October 22, 1914, upon findings in favor of the defendants, in an action by an administrator to recover personal property as assets of an estate, tried to the court and a jury.

<p>Application filed in the supreme court July 14, 1915, for a writ of prohibition to the superior court for Thurston county, Mitchell, J., to prohibit further proceedings in a cause.</p>

, entered May 17, 1913, upon findings in favor of the plaintiff, in consolidated actions of replevin and on an account stated, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered November 27, 1914, upon findings in favor of the plaintiff, in an action in tort, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Whatcom county, Hardin, J., entered May 16, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered February 4, 1915, upon findings in favor of the defendants, dismissing an action to secure the reduction of a tax, tried to the court.

, entered February 4, 1915, upon findings in favor of the defendants, dismissing an action to secure the reduction of a tax, tried to the court.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered February 4, 1915, upon findings in favor of the defendants, dismissing an action to secure the reduction of a tax, tried to the court.</p>

, entered February 4, 1915, upon findings in favor of the defendants, dismissing an action to secure the reduction of a tax, tried to the court.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, X, entered February 4, 1915, upon findings in favor of the defendants, dismissing an action to secure the reduction of a tax, tried to the court.</p>

, entered February 4, 1915, upon findings in favor of the defendants, dismissing an action to secure the reduction of a tax, tried to the court.

, entered February 4, 1915, upon findings in favor of the defendants, dismissing an action to secure the reduction of a tax, tried to the court.

, entered February 4, 1915, upon findings in favor of the defendants, dismissing an action to secure the reduction of a tax, tried to the court.