Volume 87 — Washington Reports

F. Wright, J., entered May 27, 1915, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the issuance and sale of special fund water bonds.

<p>Master and Servant—Injury to Servant—Negligence—Method oe Work—Assumption oe Risks. Although a railroad company’s method of riprapping a stream may not have been the safest and best, in that the temporary track was built upon a foundation of brush, sand, and timbers and was shaky, the company is not liable for consequential injuries to a servant while unloading rock, where he had been engaged in such work for several days and the danger was open and apparent and the shaky condition of the track was well known to him.</p> <p>Same—Negligence—Insufficient Tools. Evidence that derricks might have been used in unloading rocks in riprap work, does not establish an insufficiency of tools, where the company adopted the method of rolling the rocks off with line bars, which were in common use in such work.</p> <p>Same—Negligence—Safe Place to Work—Assumption of Risks. A railroad company using a temporary track on a shaky foundation for riprapping a' stream is not liable on the theory of failure to furnish a safe place to work, where the dangers of the place were not hidden or obscure and the employee was experienced and was fully aware of whatever dangers there were.</p> <p>Same—Negligence-—Sufficiency of Men—Assumption of Risks. A railroad company, engaged in riprap work, is not liable for negligence in failure to furnish sufficient men to roll a heavy rock off a flat car, where the plaintiff, after requesting help and being informed that there was none and that he and another were sufficient, undertook to roll the rock with line bars, the danger being open and apparent and well known to him.</p> <p>Same—Assumption of Risks—Obedience to Orders — Apparent Dangers. In such a case, the statement of the foreman that they were strong men and able to roll the rock alone, does not constitute an assurance of the safety of the place so as to render the company liable for ordering the men into a place of danger, where the danger was as apparent to the" plaintiff as to the foreman and he voluntarily continued in the work.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered June 4, 1914, dismissing an action for a writ of mandamus, tried to the court and a jury.</p>

<p>Appeal from a judgment of the superior court for What-com county, Pemberton, J., entered May 11, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a promissory note.</p>

<p>Wills—Nuncupative Will—Requisites-—Intent. Verbal instructions for a will or words spoken at the time of signing a writing intended as a written will cannot be proven as a nuncupative will, upon its appearing that the written will was not properly executed, there being ample time therefor; since there must be an intent to make an oral will, under Rem. & Bal. Code, § 1330, requiring the testator to bid some person present to bear witness, at the time of pronouncing the same, that such was his will.</p>

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

, entered April 27, 1914, upon granting a nonsuit, dismissing an action to enjoin the collection of a tax, tried to the court.

<p>Escheat — Establishment—Presumptions — Burden of Proof. While the burden is upon the state, in establishing an escheat, to overcome the presumption that the decedent left heirs, the escheat is prima facie established, where, in addition to death, nonmarriage, and intestacy, it is shown that, after diligent search, the state had been unable to find that he left ascertainable heirs.</p> <p>Same—Establishment—Kinship—Burden of Proof. Upon advertising for heirs, a claimant, in order to prevent an escheat and take by descent, has the burden of showing that he is next of kin; especially in view of the statute of escheats, Rem. & Bal. Code, § 1357, providing that a decree of escheat shall be entered if within a specified time no heirs shall have appeared “and established their claim.”</p> <p>New Trial—Newly Discovered Evidence—Diligence. A new trial should not be granted for new evidence that is only cumulative, and there was no diligence and no assurance that it would change the result.</p>

<p>Frauds, Statute of — Agreement to Pay Debt of Another. Where, upon a meeting of creditors, it was agreed that one of them was to take over the plant and pay $4,000 toward the lienable claims of the insolvent, his promise to another creditor having a nonlienable claim “to see the claim paid,” is a promise to answer for the debt of another, and void, within the statute of frauds, unless in writing, or unless from other circumstances it appears to be an original and not a collateral undertaking.</p> <p>Same—Agreement to Pay Debt of Another—Memorandum—Sufficiency. Such an agreement is not taken out of the operation of the statute of frauds by letters referring to the closing up of the matter or to the “understanding” of a third person as to the promise, none of which determines what the agreement was without resort to parol evidence; since the memorandum must be complete without resort to such evidence.</p> <p>Same—Promise to Pay Debt of Another—Original or Collateral Agreement. Where, upon a meeting of creditors, it was agreed that one of them was to take over the plant and pay $4,000 toward the lienable claims of the insolvent, his promise to another creditor, having a nonlienable claim, “to see the claim paid,” cannot be sustained as an original undertaking, in consideration of such claimant’s forbearance to sue, there being no agreement to “pay the debt,” and no release of a valid lien on the property.</p>

<p>Insurance—Fire Insurance—Cancellation oe Policy—Notice— Necessity. Under 3 Rem. & Bal. Code, § 6059-108, providing for the cancellation of insurance policies only upon the giving of five days’ notice to the insured, an attempted cancellation without notice to the insured is void.</p> <p>Same—Policy—Validity ■—• Prior Insurance — Substitution. A policy of fire insurance intended as a substitute for a prior policy, the cancellation of which was ineffective, is void, since the prior policy was still in effect.</p> <p>Same—Policy—Cancellation—Acquiescence. There can be no acquiescence by the insured in the substitution of a policy of fire insurance for a prior policy, the cancellation of which was ineffective, where the property was destroyed by' fire before the insured was notified of the attempted cancellation and substitution; especially where surrender of the prior policy was refused.</p> <p>Same—Policy—Cancellation-—Notice — WAivEfe—Authority op Agents. Insurance agents representing several companies, and authorized to keep a customer insured, have no authority to waive or accept for the insured the required statutory notice of cancellation of a policy.</p>

<p>Statutes—Time of Taking Effect—Repeal—Initiative and Referendum—Construction—Intoxicating Liquors—Prohibition. The state wide prohibition law, adopted by initiative at the general election of 1914, does not have the effect of repealing the local option law or suspending its provisions during the interval until January 1st, 1916; in view of the concluding section (Laws 1915, p. 17) providing that the act shall take effect and be in full force from and after the first day of January, 1916, conceding such section to be valid in the light of the initiative and referendum amendment to the constitution (Laws 1911, p. 139) providing that an initiative measure “shall be operative on and after the thirtieth day after the election at which it is approved”; since the act contains no express repeal of existing laws, and even an express repeal does not take effect prior in time to that fixed for other provisions of the act.</p> <p>Same—Enactment—Initiative Measures — Repeal of Existing Laws. The passage of an initiative measure as a law being the exercise of the same power of sovereignty as that exercised by the legislature in the passage of laws, the people can supersede existing laws by an initiative measure only by a repeal, express or implied.</p>

<p>Master and Servant—Negligence — Railroad Collision — Evidence—Sufficiency. The evidence is insufficient to sustain a verdict against a railroad company for the death of a conductor of a freight train, when a passenger train crashed into the caboose, where it appears that the freight train was behind time, and the conductor put out near a curve two torpedoes which were exploded by the passenger train, whereupon the engineer thereof complied with the rule in such case to reduce speed and look out for stop signal, by applying the “air” and slackening speed, and made every effort to stop when he saw the freight train ahead.</p>

<p>Contracts—Building Contracts—Construction. An agreement by contractors to furnish all materials for a building includes an agreement to pay for them.</p> <p>Principal and Surety—Building Contract—Bond—Liability oe Surety—Creditors—Privity. A building contractor’s surety bond to a private owner, conditioned to furnish the materials and pay all liens, claims, and other sums of money, and to be void in case the principal shall perform the contract and indemnify and save harmless the owner, is for the owner’s protection only; hence he cannot maintain an action thereon against the surety for the benefit of creditors of the contractor who had no liens against the property or claims by which the owner could be damaged, as there was no privity between the surety and such creditors.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered April 2, 1914, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the collection of a special assessment.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered February 7, 1914, upon findings in favor of the plaintiff, in an action for conversion, tried to the court.</p>

<p>Vendor and Purchaser — Rescission by Purchaser — Cloud on Title. A judgment against the vendee in a contract for the sale of land, suffered by him to become a lien on the property subsequent to the execution of the contract, is not ground for rescission of the contract by the vendee’s assignee; since the vendor is not bound to remove a cloud placed on the property by the vendee, and the assignee takes only the title of his assignor.</p> <p>Same. Such vendee does not better his position or that of his assignee, by revoking the contract and substituting another running to a corporation of which he is the sole stockholder, as they are in effect one and the same person.</p> <p>Same—Contracts—Assignment — Rights oe Assignee. An assignee of a recorded contract for the sale of land is bound only by the terms of the contract assigned to him; and cannot be held for subsequent promises of the vendee to which he was not a party and of which he had no notice.</p>

, entered March 21, 1914, in favor of the plaintiff, in an action to enjoin a corporation from doing a savings and loan business, and for the appointment of a receiver, tried to the court.

<p>Application filed in the supreme court July 21, 1915, for a writ of mandamus to compel the state auditor to accept and pay for certain bonds.</p>

, entered October 7, 1913, upon findings in favor of the defendant, dismissing a petition to set aside a will, tried to the court.

<p>Pleading—Demurrer—Waiver—Amendment. While the objection that the complaint fails to state a cause of action may be made at any time, it is waived by answering and going to trial, whereupon the complaint will be deemed amended to conform to the proof.</p> <p>Corporations—Stock Subscriptions—Actions—Condition Precedent. It is a condition precedent to an action by a receiver of an insolvent corporation to collect an unpaid stock subscription that notice and an opportunity be given the stockholders to be heard upon the validity of the claims against the corporation and that on such notice an order be made directing suit for the pro rata amount necessary to be collected from each stockholder.</p> <p>Appeal—Record—Findings. In the absence of the evidence on appeal, the findings will be taken as stating the facts.</p> <p>Corporations •—■ Stock Subscriptions — Conditions Precedent — Findings—Construction. In an action by a receiver upon a stock subscription, findings to the effect that the receivership order authorizing suit did not determine the pro rata share of the indebtedness that each stockholder should be required to pay, and that further proceedings in the receivership matter are necessary to determine the same, establish the fact that suit was brought without compliance with the condition precedent that stockholders be given notice and opportunity to be heard as to the amount of the assessment to be made against them.</p> <p>Appeal—Review—Findings—Presumptions. Where there is no statement of facts, and the findings are complete and negative the existence of an essential fact, there is no presumption that the facts necessary to sustain the judgment were established by the evidence.</p> <p>Appeal—Record—Exhibits. The supreme court cannot, in the absence of a statement of facts, consider a copy of an order constituting part of the evidence, brought up by a supplemental transcript.</p> <p>Husband and Wipe—Community Debt—Liability oe Husband— Corporations—Stock Subscription. A married man’s subscription to the capital stock of a corporation, although constituting a community debt, is also his separate debt upon which he is liable, although, on administration of his wife’s estate, no claim was filed against the community.</p>

<p>Evidence—Best and Secondary—-Former Testimony of Absent Witness—Statutes. Rem. & Bal. Code, § 1247, authorizing the use of a certified copy of the evidence of any witness at a former trial between the same parties, who was since deceased, “or out of the state, or for any other sufficient cause unable to appear and testify,” does not render such certified copy admissible, where the deposition of such witness was duly tahen out of the state for use at the trial and had been published without objection; the intent of the statute being to require reasonable diligence to otherwise procure the testimony of the witness.</p>

<p>Appeal from a judgment of the superior court for Benton county, Holcomb, J., entered December 8, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered April 23, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered September £6, 1914, upon findings in favor of the defendant, denying the probate of a will, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered April 15, 1915, in favor of the defendant, dismissing an action for divorce, tried to the court.</p>

<p>Street Railroads—Crossing Accident—Contributory Negligence —Question eob Jury. A teamster is not guilty of contributory negligence, as a matter of law, in attempting to cross a street ear track at a city crossing, where, when about forty feet from the track, he looked and saw an approaching street car two blocks away moving slowly, and as his horses were about to step on the track, he looked a second time, and saw the car about two hundred feet away approaching at about ten miles an hour, and looking a third time he made every effort to increase his speed and cross ahead of the car, which had increased its speed to 18 or 30 miles an hour, and in excess of the speed limit, without effort to slacken its speed until almost upon him, when it struck the felloe of the hind wheel, needing only 1 y2 inches to clear the wagon altogether.</p> <p>Same—Crossing Accident—Negligence—Last Clear Chance. In such a case, where the motorman had an unobstructed view of the vehicle for a distance of 300 feet, the doctrine of last clear chance applies, and an instruction thereon is proper.</p> <p>Appeal—Review'—-Harmless Error—Instructions. An instruction to the effect that the speed of street cars “in the thickly settled portions of the city” is limited to twelve miles an hour, is not erroneous as a comment on the facts, in that it assumes that the accident occurred in the thickly settled portions of the city, where counsel had admitted that the twelve mile limit applied.</p> <p>Same. An instruction to the effect that it was negligence of itself to run a street car in excess of the city speed limit, is not reversible error in that it fails to limit the liability to negligence that was the proximate cause of the injury, where such limitation was given by other instructions.</p> <p>Same. It is not error to refuse a request for instructions that were covered in the general charge.</p> <p>Same. It is not prejudicial error to refuse to give instructions that punitive or exemplary damages could not be given, nor anything by reason of sympathy, where the court gave fair and correct instructions as to what should be allowed as compensatory damages.</p> <p>Street Railroads—Crossing Accident—Contributory Negligence —Evidence. Where the testimony of plaintiff, struck by a street car, showed that he had time to clear the track before the car reached him, if its speed had not been increased, it is not error to exclude, on cross-examination in reference to his contributory negligence, a question as to whether he knew anything about the distance within which the car could have been stopped; as that was not an element for consideration.</p> <p>Damages—Personal Injuries—Medical Services—Instructions. In an action for personal injuries, an instruction allowing recovery for medical attendance is not prejudicial in that it was not limited to “reasonable” charges, where the only evidence of such charges was that $150 would be a reasonable charge.</p> <p>Same—Personal Injuries—Excessive Verdict. A verdict for $5,000 for personal injuries sustained by a teamster, in good health, earning $68 per month, is not excessive, where the injury resulted in total disability for manual labor, and serious permanent injuries to one kidney, his spine and nervous system, causing high fevers and intense pain.</p> <p>Appeal—Review—Refusal of New Trial—Discretion. Misconduct of counsel in argument, to which no objection was made at the time or request made for an instruction, cannot be urged on appeal as ground for a new trial, where the trial court duly exercised its discretion in overruling the motion.</p>

Cross-appeals from a judgment of the superior court for King county, Tallman, J., entered July 2, 1914, in favor of the defendants, in an action on a promissory note and to foreclose a mortgage, tried to the court.

<p>Insubance—Action on Policy—Suicide—Evidence — Admissibility. In an action upon a life insurance policy, upon an issue as to whether the insured committed suicide, evidence of his statements as to his intentions to do so are competent.</p> <p>Same — Action on Policy—Suicide — Evidence—Question eob Jury. In an action upon a life insurance policy, upon an issue as to whether the insured committed suicide, the presumption of death from natural causes by reason of the fact that he was found dead in bed, is sufficiently overcome to make a question for the jury, where it appears that the insured had repeatedly stated that he intended to commit suicide and so informed witnesses the day before his death, stating that he had the stuff in his pocket to do it with, and that he left notes bidding his family good-by and stating where they would find some money.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered October 28, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal—Review—New Tbial. The discretion of tbe trial court in granting a new trial will not be reviewed upon appeal except for misconception of tbe law.</p> <p>Pleadings—Judgment on Pleadings—Reply—Issues. Judgment on tbe pleadings is erroneous where tbe reply to a plea of former adjudication set up new matter avoiding tbe plea and there were issuable facts for tbe jury.</p> <p>New Tbial—Right to—Ebbob of Law. Where tbe trial court erroneously granted judgment on tbe pleadings, it may correct tbe error by granting a motion for new trial.</p>

<p>Statutes—Implied Repeal. To work a repeal by implication, the later statute must be irreconcilable with and cover the whole subject-matter of the former act.</p> <p>Statutes—Construction. Statutes in pari materia will be read together, and so as to produce a harmonious system if possible, the presumption being that the new law was enacted with reference to former laws.</p> <p>Municipal Corporations — Improvements—“Arterial Streets”— Statutes. 3 Rem. & Bal. Code, § 5856-1 et seq., defining “arterial streets” and providing that cities and towns may, with the approval of the county commissioners, improve the same in the manner provided in the act, which limited the assessment of abutting property to fifty per cent of its value, is not mandatory in requiring “arterial streets” to be improved under that system; and, containing no repealing clause, it does not repeal, but is merely supplemental to the existing law, Id., §7892-1 et seq., providing a distinct method for the improvement of streets and highways by cities, towns and counties.</p> <p>Same. The determination of what is an “arterial street” is a legislative question that cannot be controlled by the courts.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Gcrimshaw, J., entered October 15, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Municipal Corporations—Ordinances—Enactment—Veto. The provision of the Seattle charter, art. 8, § 11, requiring the unanimous vote of all members of the city council to order the grading of a street not initiated by petition, does not require a unanimous vote to override the mayor’s veto of such an ordinance originally passed by a unanimous vote; in view of art. 4, § 16, providing that, upon a reconsideration, the council may override the mayor’s veto by a two-thirds vote of all the members of the council.</p> <p>Same—Public Improvements—Proceedings—Estimates-—-Resolutions—Ordinance. 3 Rem. & Bal. Code, § 7892-14, authorizing an enlarged district in case of special benefits to property extending beyond the boundaries of the district, provides that the petition or resolution for such enlarged district shall specify the fixed proportionate amount to be assessed against the property in the enlarged district; hence it is not necessary that the final ordinance specify the proportion to be charged to the enlarged district.</p> <p>Mandamus—To Oottcebs—Ministerial Acts. Where a mayor refused to approve a contractor’s bond, admitted to be sufficient in amount and form, solely on the ground of the invalidity of the proceedings, mandamus is the proper remedy to compel the approval; since his duty becomes ministerial upon finding the proceedings valid.</p>

, entered April 17, 1914, in favor of the plaintiff, after an order of remand from the supreme court, in an action for equitable relief.

<p>Taxation — Foreclosure—Service oe Process — Presumptions— Recitals. In a tax foreclosure suit, recitals in the findings of due and legal service of process do not have the conclusive effect of similar recitals in the judgment.</p> <p>Same. Recitals in an order of default in a tax foreclosure upon which the judgment was based, to the effect that service of process was had by publication, overcomes any presumption of a different service arising from a mere recital of due service in the findings of fact.</p> <p>Same—Foreclosure—Service of Summons—Correction of Return. A return of service in a tax foreclosure cannot be corrected by filing another affidavit after judgment without leave of court.</p> <p>Same. After entry of a tax foreclosure judgment upon service by publication, the plaintiff cannot, by affidavit filed in the cause, show a personal service, without giving notice to the defendant and an opportunity to be heard.</p>

<p>New Tbial—Absence of Counsel—Timely Objections. Tbe absence of counsel retained and familiar witb the cause, and tbe necessity of substituting new counsel who failed to properly present tbe case, is not ground for a new trial, where tbe trial was entered upon without objection.</p> <p>Municipal Coepoeations — Impbovements — Benefits — Assessments—Review. An assessment by eminent domain commissioners will not be set aside as unequal or excessive, or for failing to assess property in tbe district, upon a mere difference of opinion between tbe commissioners and tbe objectors as to tbe amount of tbe benefits; but it must appear that they acted arbitrarily or upon a fundamentally wrong basis.</p> <p>Same—Assessment of Benefits—Objections—Time foe Taking. Where items of expense in assessing benefits were not included in tbe judgment of condemnation, tbe property owners are entitled to object to tbe same upon tbe bearing on confirmation of tbe roll, that being their first opportunity.</p> <p>Same—Assessment of Benefits—Unseasonable Expenses—Pbesumptions—Burden of Peoof. Under Rem. & Bal. Code, § 7787, providing that assessments for improvements may include all costs and expenses of tbe proceedings, including tbe estimated costs of making tbe assessments, tbe payment by tbe eminent domain commissioners of $7.50 a day to experts in land values for periods of 30, 33, and 49 days in estimating tbe amount of damages from tbe opening of 3,600 feet of highway, will be presumed to be reasonable and necessary until tbe contrary is shown; and tbe burden of proof is not met by a mere statement of tbe services and charges.</p> <p>Constitutional Law—Due Peocess—Municipal Coepoeations— Impeovement Distbicts. Tbe statute empowering cities to define tbe assessment district on which an assessment for a local improvement is to be made does not violate tbe due process clause of tbe state and Federal constitutions.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered December 29, 1918, upon granting a nonsuit, dismissing an action for an injunction, tried to the court.</p>

<p>Vendor and Purchaser—Rescission by Vendee—Erahdiji,ent Representations. The vendees are entitled to a rescission of a contract for the sale of land, where they purchased in reliance upon the assumption, induced by the vendor’s conduct, that boundary fences were upon the true lines, which were represented to include at least eighty acres of good upland, while a subsequent survey showed a loss of 29 acres of good lands and a ferry landing included within the fences, but outside of the true boundaries; and it appears that, without the land within the enclosure, the land could not be profitably platted, for which purpose it was purchased.</p>

<p>Insurance — Accident Insurance — More Dangerous Hazard— Policy—Construction. One insured in an accident policy as a “clerk in a drug store handling light goods at counter,” who was shot on a vacation hunting trip while he was rowing a boat with companions shooting ducks, received his injury while doing or performing “temporarily or otherwise any act pertaining to any more dangerous hazard or exposure,” within the meaning of a clause in the policy reducing in such case the amount to be paid, where the classification of hazards included that of “hunter, either professional or amateur” as more hazardous than that of drug clerk.</p> <p>Same—Accident Insurance—Policy—Injury—“Fatal or Otherwise.” A provision in the application for an accident policy agreeing to accept a less sum in case “I am injured” while doing any act pertaining to a more dangerous hazard, includes an “injury” resulting in death, although in some of the clauses, after the word “injury” the words “fatal or otherwise” are used.</p> <p>Same—Accident Insurance—Policy—Manual—Evidence—Identification. In an action upon an accident policy which was accepted subject to the company’s manual of classification of hazards, the manual is properly admitted in evidence where the agent of the company who-wrote the policy identified the manual offered as the one used in the business, and in force and published at the date of the execution of the policy.</p>

<p>Appeal—Record—Statement op Facts—Recitals in Judgment. In tbe absence of a statement of facts, recitals in tbe judgment as to tbe statements and admissions of counsel at tbe time of entering tbe judgment upon a stipulation are conclusive on appeal.</p> <p>Mortgages—Foreclosure — Decree — Subsequent Liens —Homestead—Priority. In an action to foreclose a mortgage, in wbicb it appears that tbe mortgagors had a $2,000 homestead exemption prior in right to a second judgment held by tbe mortgagee, tbe decree of foreclosure is not erroneous in that it failed to establish a lien for plaintiff’s second judgment, where it did not attempt to control tbe right of redemption and simply provided for tbe disposition of tbe funds arising from tbe sale in tbe order of their priority.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered April 1, 1914, upon findings in favor of the defendants, in an action upon a promissory note, tried to the court.</p>

<p>Courts—Admiralty Jurisdiction—Statutes. Tbe judiciary act of 1789 (IT. S. Rev. St. § 563), “saving to suitors in all cases the right of a common law remedy where the common law is competent to give it” leaves open the common law jurisdiction of the state courts over torts committed at sea, making the .same concurrent with the admiralty and maritime jurisdiction extended to Federal courts by the Federal constitution, art. 3, § 2.</p> <p>Master and Servant — Workmen’s Compensation Act—Scope— Application to Seamen—Owners of Vessels. The state legislature could not, by the workmen’s compensation act (3 Rem. & Bal. Code, § 6604-1 et seq.), declaring that the compensation provided for employees injured while engaged in extra-hazardous employments shall be exclusive of every other remedy and that all civil actions for such personal injuries are abolished, modify or abrogate the maritime law of the United States under which an injured seaman could pursue his remedy in admiralty; hence the workmen’s compensation act was not intended to include seamen employed by companies operating boats upon Puget Sound engaged in intrastate commerce, and such companies are not subject to the provisions of the act or liable for the premium provided therein for “steamboats, tugs, ferries.”</p> <p>Same. The extension of the workmen’s compensation act (3 Rem. & Bal. Code, § 6604-1 et seq.) to seamen employed upon vessels engaged in intrastate commerce cannot be sustained on the theory that the state may legislate upon local matters embraced within Federal authority until such time as the Federal authority may be exercised by act of Congress; since U. S. Rev. Stat., § 4283, limits the liability of the owner of any vessel for damages or injury occurring without the privity or knowledge of such owner to the amount or value of the interest of the owner in such vessel and her freight, and applies to cases of personal injuries in which there is no privity or knowledge of the owner, thereby fixing a different limitation of such liability from that sought to be fixed by the workmen’s compensation act, which limits liability of owners of vessels to the amount of their unpaid premiums.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered May 22, 1915, in favor of the defendants, dismissing an action for an injunction, tried to the court.</p>

<p>Corporations — Officers—Contracts—Employment. An agreement by the president and principal stockholder oí a corporation to pay to two of its employees, as extra compensation in addition to their regular salaries, the reasonable value of their services in effecting a reorganization of the corporation, is binding, regardless of who originated the plan, or whether the services were within the scope of their usual duties or were of any permanent benefit.</p> <p>Same—Contracts — Employment — Consideration. The release of rights in shares of the capital stock of a proposed corporation, put up with a trust company as part payment for helping to reorganize the company, is a good consideration for a promise to pay the reasonable value of services already performed and to be performed in effecting the reorganization.</p>

<p>Appeal—Review—New Trial—Waiver. Failure to appeal from an order granting a new trial forecloses any review thereof.</p> <p>Chattel Mortgages—Foreclosure—By Notice—Election to Mature Debt—Effect—Statutes. A chattel mortgage that is made due by the election of the mortgagee, upon deeming himself insecure, pursuant to an express provision to that effect and Rem. & Bal. Code, § 1112, may be foreclosed by statutory notice, without proceeding by action under Id., §§ 1104 and 1109; in view of the fact that the mortgagee is liable for arbitrary action and that the mortgagor has his remedy by removal of the proceedings to the superior court, under Id., §1110.</p> <p>Same-—-Foreclosure—Notice-—Election to Mature Debt. A statutory notice for the foreclosure of a chattel mortgage containing a declaration of the amount due, fair on its face, is a sufficient notice to warrant an officer in taking possession,. unless challenged in the way provided by statute, without reciting that the mortgagor deems himself insecure, authorizing an election to hasten maturity of the debt; seizure of the property being sufficient notice of such intention.</p> <p>Same—Foreclosure—Notice—Amendment—Liability of Officer —Nominal Damages. In case a sheriff takes possession of mortgaged chattels under a defective notice of foreclosure, a second sufficient notice, placed in his hands on the same day while the goods were in his possession, will be held to be an amendment of the first notice, or to minimize the mortgagor’s damages for the trespass to nominal damages only.</p> <p>Same—Foreclosure—-Notice—Service. Rem. & Bal. Code, § 1106, providing that “such notice” (of foreclosure of a chattel mortgage) shall be placed in the hands of the sheriff and shall be sufficient authority for the officer to take the property into his “immediate possession,” refers to the mortgagee’s original notice or warrant to the sheriff to foreclose the mortgage, and not to the notice to be served on the mortgagor, in view of Rem. & Bal. Code, §§ 1106, 1107, providing for notice to the mortgagor to follow seizure.</p> <p>Time—Computation—“Not Less Than”—Chattel Mortgages— Notice of Sale. The statute requiring a notice of “not less than” ten days of a chattel mortgage foreclosure sale is complied with by a notice on September 27th fixing the sale on October 7th; in view of Rem. & Bal. Code, § 150, providing that the time within which an act is to be done shall be computed by excluding the first day and including the last.</p>

<p>Rape—Carnal Knowledge of Child—Pregnancy—Materiality. Upon the trial of a charge of carnal knowledge of a child under the age of fifteen years, it is not error to refuse to appoint physicians to make a physical examination to determine whether the prosecutrix was pregnant, and, if so, whether conception took place after the time of the alleged offense; since it could not disprove the charge.</p> <p>Appeal—Record—Statement op Pacts—Affidavits. Affidavits in support of a motion for a new trial cannot be considered on appeal unless made a part of the record by bill of exceptions or statement of facts.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered December 27, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

Cross-appeals from a judgment of the superior court for Yakima county, Grady, J., entered December 16, 1914, modifying an assessment roll upon appeal from confirmation thereof, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered July 15, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages.</p>

<p>Appeal from a judgment of the superior court for Yaldma county, Grady, J., entered June 1, 1914, upon findings in favor of the plaintiff, in an action for conversion, tried to the court.</p>

<p>Appeal from a judgment- of the superior court for King county, Albertson, J., entered April 18, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for malpractice.</p>

<p>Railroads—Animals on Track—Private Crossings—Agreement —Construction. Under a right of way agreement whereby a railroad company was to maintain a private crossing and gates, which the owner could leave open at his own risk, the owner, in leaving the gates open, assumed only the risk of accidents happening at the crossing; and the contract did not supplant Rem. & Bal. Code, §§ 8730, 8731, making the company liable for stock killed on its failure to fence its track, where the stock escaped through the open gates to the public highway and strayed upon the track at a distant point.</p> <p>Same — Animals on Track — Negligence — Contributory Negligence—Question eor Jury. Whether the owner of stock which he allowed to escape, and a railroad company which killed the stock upon its track, were in pari delicto, is a question of fact for the jury, if, upon the evidence, different minds might honestly reach different results.</p> <p>Same—Animals on Track—Negligence—Evidence—Sueeiciency. The evidence sustains findings that a motorman of an electric train was guilty of negligence in killing horses on the track, where it appears that the road was straight for a mile and a half and the horses had not been outside the rails, that the motorman would have discovered them, if he had used reasonable diligence, when within 350 feet from them, which would have been in time to have checked the train or given warning whistle and avoided the injury.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered July 15, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Judgment—Lien—Duration—Executions — Limitations. Under Rem. & Bal. Code, §§ 459, 460, limiting the life of a judgment to six years after which it ceases to be a lien and cannot he enforced, the lien continues for the period of six years, within which time execution may issue.</p> <p>Same—-Duration—Limitations-—-Execution—Time for Issuance. Inasmuch as it is the date of the contract constituting the cause of action on which a judgment is rendered, rather than the date of the judgment, that controls the duration of the judgment, under the law of 1897, Rem. & Bal. Code, §§ 459, 460, limiting all remedies thereon to six years, a judgment rendered upon a judgment rendered upon a contract entered into prior to the passage of the law of 1897, is governed by the law as it existed prior to the passage of that act, which provided that it remain in force for the purpose of execution and sale only for the period of five years, unless revived.</p> <p>Same—Duration—Revival—Issuance of Execution. The common law rule that the issuance of an execution upon a judgment operates as a revival of the judgment does not obtain in this state, in view of the statutes relating to the life of and revival of judgments and the limitations respecting the issuance of executions.</p>

<p>Bankruptcy—■ Preferences — Avoidance — Knowledge of Transferee. The grantee in a bill of sale by an insolvent is not shown to have had “reasonable cause to believe” that the enforcement of the transfer would effect a preference, within the meaning of § 60 of the Federal bankruptcy law, providing that all such transfers within four months before filing the petition in bankruptcy shall be voidable by the trustee, where it appears that the debtor-vendor, made a sworn statement of the names and addresses of all his creditors, with the amount of indebtedness owing, in compliance with the sales-in-bulk act, Rem. & Bal. Code, § 5296, from which it appeared that he was solvent, that the omission of the name of his principal creditor rendered him liable to perjury, under § 5298 of the act, and that the grantee took in good faith for the benefit of the creditors named, without knowledge of any other creditor or of the vendor’s insolvency.</p>

<p>Municipal Corporations — Public Improvements — Contracts'— Exhaustion of Fund—Remedies of Contractor. Where, by the contract, payment for the construction of a pipe line for city waterworks was limited to a special fund to be created by the issuance of warrants for the estimated cost, together with a specified sum from the annual gross earnings of the water plant, the exhaustion of the fund does not bar the contractor from recovering judgment against the fund for the amount due him on his contract.</p> <p>Same—Contracts—Demurrage—Waiver by City. Where, after a contract for the construction of a pipe line for city waterworks was completed, the city paid the sum of $71,444, as the amount admitted to be due, without making any claim for liquidated damages as demurrage for failure to complete the work on time, the claim for demurrage is waived, and cannot be offset against the contractor’s claim for extras.</p> <p>Appeal — Preservation of Grounds — Exceptions to Findings— Sufficiency. A specific exception to each of the findings by number, which directs the attention of the court thereto, is sufficient to secure a review on appeal, although the exception is general in nature, and part of the facts stated are admitted.</p> <p>Municipal Corporations — Public Improvements — Contracts— Extras—Radical Change in Plans. Under a contract for the construction of a pipe line for city waterworks, providing for extra pay in case any work or material not prescribed in the plans and specifications shall be ordered by the city, there is a material or radical change in the contract entitling the contractor to the extra compensation, where, for a distance of approximately five miles in a detour around a mountain, the route was changed to pass on the opposite side of the mountain, at one point a mile distant from the original route, and along a railroad right of way and cut, over a high divide, requiring excavation of a hill and a deeper trench, requiring two “lifts” instead of one and increasing the cost of the excavation.</p> <p>Same—Public Improvements—Modification—Consideration for Change. Where, in constructing a pipe line for city waterworks, a change of route decided upon by the city constituted an extra for which the contractor was entitled to extra compensation, the waiver of his right thereto, together with his agreement to excavate a hill along the line of the new route at a price less than that called for in the contract for earth excavation, constitutes a sufficient consideration for a good faith agreement and resolution of the city council changing the contract and increasing the compensation for hardpan excavation, classed in the contract as “earth,” to the amount specified in the contract for the classification of “loose rock”; hence such resolution was not void for want of consideration.</p> <p>Same—Public Improvements—Contracts—Construction—Modification—Increased Costs. A provision in a contract for a pipe line for city waterworks requiring the pipe to be covered to the depth of not less than two feet, “unless otherwise directed by the commissioner,”, must be given a reasonable construction, and does not allow the city to require the contractor to proceed with a refill of only one foot, where, owing to heavy rains and the flat country, the trenches were flooded and the pipe floated, greatly increasing the expense, when it could have been held in place by a refill of two feet; and in such case the cost of restoring the pipe to place must be borne by the city.</p> <p>Same—Public Work—Contracts—Extras. Where, in the construction of a city pipe line for waterworks, the city council passed a resolution recognizing certain changes which materially increased the cost as an extra, and authorized a payment of the same, the city cannot escape the recognition by claiming that it was without knowledge as to just what had been done on the particular work; and the contractor is entitled to extra compensation at the rate provided for in the contract.</p> <p>Same—Public Work—Contracts—Compensation. A contract for the construction of a pipe line for city waterworks providing that the contractor shall be paid at the contract price for only the actual work done, allows recovery for clearing right of way at the price bid per acre for clearing, for only the area actually cleared, according to the monthly reports, and not for the total area of the right of way.</p> <p>Same. The contractor for the construction of a city pipe line for waterworks cannot justify his failure to lay a section of the pipe at the depth stipulated for by the fact that the pipe as laid, gives good service and the city does not intend to relay it; but the city is entitled to deduct the reasonable cost of relaying the pipe; especially where it appears that it may be compelled to do so to pass at a proper depth under a contemplated highway.</p> <p>Interest—Allowance—Contract por Public Improvements. Interest is properly allowed upon a balance admitted to be due upon a contract for public improvements, from the time of the acceptance of the contract until paid.</p> <p>Same—Allowance—Unliquidated Demand. Interest cannot be allowed prior to judgment for the amount due to a contractor for extras in the construction of city waterworks, where the items ' were in dispute, either as to the work done, the materials furnished, or the price to be paid, and it was necessary to establish the same by evidence.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered January 30, 1914, in favor of the plaintiffs, in an action to foreclose'mechanics’ liens, tried to the court.</p>

, entered February 28, 1914, dismissing an action for personal injuries sustained by reason of a defective street, upon sustaining a demurrer ore terms to the complaint.

<p>Cross-appeals from a judgment of the superior court for King county, Albertson, J., entered February £0, 1914, in favor of the plaintiffs, in an action for an accounting, tried to the court.</p>

, entered May 5, 1914, confirming the report of a receiver and fixing his compensation, after a hearing before the court.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered June 25, 1914, upon the verdiet of a jury rendered in favor the plaintiff, in an action on contract.</p>

<p>Husband and Wife—Community Property—Presumptions. Where a husband acquired real property in this state during the marriage relation, it is presumed to be community property, and the burden rests upon the spouse asserting its separate character to establish the fact by clear and satisfactory evidence.</p> <p>Same—Community Property—Wife’s Separate Estate—Gifts— Presumption—Evidence. Where husband and wife, from profits of business conducted in Montana, paid for real property purchased in this state in the husband’s name, it could become the separate property of the wife only by reason of a gift to her of the profits of the Montana business, and tracing it to the land; which gift cannot be presumed, but must be shown by clear, convincing, strong and satisfactory evidence.</p> <p>Same—Community Property—Separate Property of Wife — Presumptions. The fact that a married woman kept bank accounts in her own name does not establish their separate character, the presumption being that they were community property.</p> <p>Evidence—-Admissions — Declaration of Deceased Persons — Weight. Evidence of admissions of a deceased husband that a ranch, purchased in his name, was the separate property of the wife, is competent, but should be received with caution and subject to careful scrutiny.</p> <p>Husband and Wife — Community Property — Gifts—Presumptions—Resulting Trust—Proof. A contract for the purchase of land in the name of the husband, even though purchased with separate funds of the wife, raises a presumption of a gift to the husband, rather than a trust for the wife, to be overcome only by clear, cogent and convincing evidence to the contrary.</p> <p>Appeal—Review—Complaint—Objections—Waiver. Upon objection first made on appeal that a complaint was insufficient in failing to show decedent’s insolvency, a complaint stating that the estate had no other property to pay claims of creditors, will be held to state a cause of action.</p> <p>Evidence—Admissions by Agents. Where a party expressly refers an inquiry to her attorney for answer, his admission against her interest is admissible, since he was made an accredited agent for that purpose.</p> <p>Statutes—Foreign Laws—Presumptions. The laws of another state, not pleaded or proven, are presumed to be the same as our own.</p> <p>Executors and Administrators—Claims-—Presentation — Bar-— Evidence. Failure to present claims against an estate in Montana within the statutory period, which is one year after the first publication of notice, cannot be asserted as a bar, in the absence of proof of the giving of notice to creditors.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered August 19, 1914, upon sustaining a demurrer to the complaint, dismissing an action to forfeit the franchise of a corporation and wind up its affairs.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Mills, J., entered March 28, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered November 17, 1913, upon findings in favor of the defendants, in an action on promissory notes, tried to the court.</p>

<p>Usury—Evidence—Ulterior Pacts. Ulterior facts are admissible to show that a loan, fair on its face, is usurious, by showing the actual consideration, but the courts will look to the substance of the transaction and not resort to refined theories either for the purpose of sustaining or avoiding it.</p> <p>Usury—Installment Notes—Computation op Interest. An actual loan of $1,605, evidenced by 96 notes calling for monthly payments of $24.80, aggregating $2,380.80, if paid according to its terms, is not usurious, since the payments applied on the loan according to the ordinary rule of partial payments amount to interest at less than the maximum rate of twelve per cent per annum allowed by law.</p> <p>Usury—Acceleratinq Maturity—Liquidated Damages. Stipulations in a contract of loan accelerating maturity in case of default, do not make the loan usurious, even though the contract, if enforced according to the terms of the default, will result in a rate of interest greater than the legal rate; since the excess is regarded as liquidated damages.</p> <p>Usury—Optional Payments—Increased Interest. A stipulation in a contract of loan authorizing the borrower to pay the same before maturity upon paying an advanced rate of interest in excess of the legal rate does not make the loan usurious; since such clause was not enforceable by the lender.</p> <p>Bills and Notes—Penalties — Enforcement — Unconscionable Provisions—Usurious Interest on Default. Where an actual loan of $1,605, evidenced by 96 notes calling for monthly payments of $24.80, aggregating $2,380.80, resulting in interest at the rate of approximately 10.5 per cent if paid according to its terms, was by default accelerated and matured after payment of 24 installments, it would be unconscionable to enforce the contract according to the terms of the default, resulting in the payment of more than twelve per cent interest, the maximum allowed by law; and the just allowance would be 10.5 per cent on the principal sum both prior and subsequent to the default, with the attorney’s fees and expenses stipulated for.</p>

<p>Appeal—Record—Abstract—Sufficiency. An appeal will not be dismissed for a too literal transcript of the records in the abstract, where there has been a. good faith attempt to comply with the law, and the departure has not worked inconvenience; especially in view of the Laws of 1915, p. 300, dispensing with the necessity of an abstract under the circumstances.</p> <p>Fraudulent Conveyances—Sales-in-Bulk Act—Title oe Vendee —Statutes. The sales-in-bulk act, Rem. & Bal. Code, § 5297, declaring sales of stocks of goods in bulk to be fraudulent and void, unless accompanied by the required affidavit and list of creditors, means void as to creditors only, and title passes as between the vendor and vendee; since the act was intended only for the protection of creditors.</p> <p>Same—Sales-in-Bulk—Remedies oe Creditors—Bona Fide Purchasers. Since the sales-in-bulk act does not give creditors any specific lien on the property fraudulently conveyed, but simply makes noncompliance with the statute conclusive evidence of fraud, the remedy of creditors is confined to pursuing the property in the hands of the wrongdoers, or others with notice, or the wrongdoers personally for conversion; and they cannot pursue the property in the hands of dona fide purchasers for value.</p> <p>Same—Sales-in-Bulk — “Purchaser” — Assignee for Creditors. An assignee for the benefit of creditors is not a purchaser of a stock of goods in bulk, within the meaning of the sales-in-bulk act, Rem. & Bal. Code, § 5296 et seq., requiring the vendor to make an affidavit and list of his creditors.</p> <p>Assignments eor Benefit of Creditors — Notice — Recording— Remedies of Creditor—Laches. An assignment for the benefit of creditors, filed of record as required, is constructive notice to a creditor who was not included among the creditors listed; hence such a creditor must take notice thereof, and protect himself in the administration proceedings, it being too late to proceed against the assignee as a wrongdoer after administration of the trust.</p>

<p>Sales—Warranties—“Seller’s Praise.” A representation made upon selling a bay stacker that it would stack bay from fifty cents to one dollar cheaper than a “T” stacker, in use by the vendee, cannot be held to be a warranty, but is a mere expression of opinion constituting “seller’s praise,” and not actionable (Chadwick, J., dissenting).</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered November 12, 1914, upon granting a nonsuit, dismissing an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Edward H. Wright, J., entered May 1, 1914, upon a trial and conviction of rape.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered September 28, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered July 8, 1914, upon findings in favor of the plaintiff, in ah action to foreclose bonds, tried to the court.</p>

, entered April 1, 1914, granting a judgment in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for' fraud.

<p>Physicians and Surgeons—Malpractice—Error of Judgment— Negligence—Evidence—Suetticiency. A surgeon is not liable for malpractice where, having successfully treated a “mashed” foot until it was healed, he failed to subsequently make an attempt to reset a bone or perform an operation that might have restored the functions of the foot, according to the opinion of some of the experts, but which, according to others equally skilled, was considered foolhardy and hazardous to life or limb, and at most he was guilty of a mere error of judgment upon a question in doubt.</p> <p>Same—Contract to Treat Patient—Failure to Perform—Liability. Where, after treatment of a “mashed” foot, the patient on leaving the hospital suffered pain that could be relieved by cutting off the end of a protruding bone, it is the continuing duty of a physician who was under a contract to treat the patient to perform the operation; and on failure so to do, he is liable for the cost of the operation.</p> <p>Same. In such a case, the surgeon would not be liable for the patient’s continued pain and suffering after he was advised that it could be relieved by an operation; since it was the patient’s duty to minimize the same by having the operation performed.</p>

Application filed in the supreme court September 11, 1915, for a writ of prohibition to prevent the superior court for Clallam county, Ralston, J., from assuming jurisdiction over the property of an insolvent corporation.

<p>Appeal from a judgment of the superior court for Benton county, Holcomb, J., entered April 1, 1914, upon the verdict of a jury rendered in favor of the defendants, in an action on promissory notes.</p>

<p>Husband and Wive—Sepabate Maintenance—Alimony and Suit Money—Allowance. Temporary alimony and suit money may, in the discretion of the court, where the necessity exists, be granted in an action by a wife for separate maintenance, where the marriage is admitted, notwithstanding the husband pleads in defense a separation agreement whereby the wife released him from all claims to support or to property rights.</p>

, entered March 30, 1915, dismissing an action to recover certain money and papers taken from an accused person, upon return of the remittitur from the supreme court.

<p>Eminent Domain—Compensation—Waters—Riparian Rights—1 Sale oe Waters—Evidence. In proceedings to condemn riparian rights by diverting a stream for a water supply, the owners of the source of the stream are not entitled to augment their damages by showing the value of the water supply as á commercial proposition, aside from the value of the use of the water upon their lands, where their only interest or right in the waters was that of riparian owners, subject to lower riparian rights.</p> <p>Same—Compensation—Riparian Rights—Evidence—Remoteness. In such a case, it is not an abuse of discretion for the trial court to exclude, as too remote and speculative, evidence of the possibility that all the riparian owners interested could combine so as to enable them to jointly dispose of the waters for commercial purposes; nothing of that sort being contemplated at the time.</p> <p>Appeal—Review—Instructions. It is not prejudicial to refuse requested instructions which are covered in the general charge.</p> <p>Appeal—Review—Harmless Error. In proceedings to condemn riparian rights by diverting a stream for a water supply, it is not prejudicial error to receive in evidence ineffective appropriation notices posted upon the land, where it was plain from the admissions of counsel and instructions of the court that the jury could not possibly have received the impression that the notices gave the respondent any right whatever in the water, and they were only admitted to show a right to prosecute the proceedings and take the waters for a public use.</p>

<p>Taxation—Assessment—Excessiveness—“Speculative Value”— Evidence—Sufficiency. The assessment of two hundred sections of railroad lands at from $2.86 to $1.91 an acre (fifty per cent of the cash value) is shown to be so grossly in excess of the fair cash value as to be arbitrary and made upon a fundamentally wrong basis, where it appears that it was dry grazing land, practically valueless and of no sale or market value, worth for grazing not exceeding $13 a section; and the assessed value, which did not rise to the dignity of speculative value or probability of value within the span of a lifetime, was confirmed below on an “inference” that the company had withheld the same from sale for a “definite purpose” regarding the lands, and because there could be no possible comparison of values on account of the withdrawal of government lands constituting the balance of the area in that locality; since other comparisons of value existed, and a withholding of the lands from sale by an owner adds nothing to its present taxable value.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered October 5, 1914, upon sustaining a demurrer to the complaint, dismissing an action to vacate a judgment, tried to the court.</p>

, entered October 21, 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, Albertson, J., entered April 11, 1914, upon findings in favor of the plaintiff, in an action to recover money paid, tried to the court.</p>

<p>Mechanics’ Irens—Estate oe Title Subject—Lands Under Executory Contract oe Sale. Although ordinarily a mechanics’ lien against premises held under executory contract of sale attaches only to the interest of the party causing the work to be done, the interest of the vendee and also the fee of the vendor are subject to liens, where the vendor personally contracted for the labor and materials and the vendee had agreed to erect the building and had charge of the construction.</p> <p>Same—Claims Lienable—Decree—Consolidated Actions—Relief to Defendants. Upon decreeing the foreclosure of mechanics’ liens against premises held under an executory contract of sale, it is error, in a consolidated action, to decree a lien on the property for the personal judgment entered in favor of the vendee against the vendor for breach of the contract of sale, in the absence of any claim of lien filed therefor; the consolidation of the actions not warranting decree of a lien for such personal judgment otherwise than by the statutory procedure for general judgments.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered October 17, 1914, in favor of the defendants, in an action in tort, tried to the court.</p>

<p>Franchises — Power to Grant — Municipal Corporations. The power to grant franchises being a sovereign power residing primarily in the state legislature, it can be exercised by cities or subordinate agencies only when the right has been expressly conferred upon them.</p> <p>Municipal Corporations—Streets—Franchise for Telephones— Power to Grant—Referendum—Necessity—Statutes. An ordinance granting a telephone franchise in a city of the first class is subject to the referendum provision of the city charter requiring all franchise ordinances to be submitted to referendum, notwithstanding Rem. & Bal. Code, § 9314, relating to telephone companies, which provides that the streets of the city cannot be used by a telephone company without the consent of the “city council;” in view of Id., § 7507, subd. 7, giving a first-class city, as a corporate entity as distinguished from its “legislative authority,” power to regulate and control the use of streets and authorize or prohibit the use of electricity in or upon the same, and to prescribe the terms and conditions upon which the same may be used; the city charter having been adopted pursuant to 3 Rem. & Bal. Code, § 7493-1, providing that the manner and mode in which cities of the first class shall exercise their powers shall be as provided in their charters, which may provide for direct legislation by the initiative and referendum.</p>

<p>Appeal—Record—Striking — Requested Instructions. Instructions purporting to be the instructions given will not be stricken from tbe record on a showing by respondent that they were the instructions requested to be given, but were not in fact given by the court, as shown by indorsement on the back, where the clerk has certified that they were filed and were part of the record in the case.</p> <p>Appeal-—Record—Errors—Correction—Lost Instructions—Supplemental Record. If instructions, certified by the clerk as part of the record and purporting to be “instructions of the court,” were not in fact the instructions given by the court, which were lost, respondent’s remedy is not by a motion to strike, but by showing the facts by supplemental record, and bringing up a copy of the lost record, which may be substituted below pursuant to Rem. & Bal. Code, § 1270.</p>

<p>Appeal—Review—Discretion—Grant op New Trial. Where remarks of a trial judge indicated that he granted a new trial because facts had been overlooked and a fair trial had not resulted, and not alone upon the ground of newly discovered evidence, his decision will not be disturbed on appeal except for abuse of discretion.</p> <p>Same. Remarks of the trial judge respecting one of the grounds for a new trial, concluding with a statement that enough had been shown to require a new trial without further pursuing the investigation, do not show that he intended to overrule the other grounds of the motion; and on appeal, the respondent is entitled to urge any of the grounds to sustain the judgment.</p> <p>New Trial—Procedure—Trial to Court—Evidence. Upon the grant of a new trial in an action tried to the court, it is not necessary to again take the evidence already received, but only such other evidence as the parties desire to introduce.</p>

, entered December 18, 1914, upon sustaining demurrers to the complaint, dismissing, as to certain defendants, an action to foreclose a mortgage.

<p>Venue—Change—Bias oe Judge—“Parties”—Creditors in Receivership. In an action by the state on the relation of the Attorney General, against an insolvent banking corporation, as defendant, asking for the appointment of a receiver, creditors interested in the receivership are not “parties” to the action within the meaning of 3 Rem. & Bal. Code, §§ 209-1, 209-2, providing for a change of judges in case the trial judge is prejudiced against any “party” appearing in the action; and hence are not entitled to disqualify a judge on account of bias.</p> <p>Same—Change—Bias oe Judge—Time oe Application. 3 Rem. & Bal. Code, § 209-2, authorizing a party to disqualify the judge before whom an action is pending by filing an affidavit of prejudice, contemplates that the application must be timely made; and upon an issue as to the removal of a receiver who had been appointed, an application is not timely where the creditor asking the same had previously requested the appointment of another person as receiver, and had been refused.</p> <p>Same — Change — Bias oe Judge—Collateral Proceedings. A judge may not be disqualified to try a pending receivership proceeding by an affidavit of prejudice filed in some proceeding collateral to the receivership.</p>

, entered August 13, 1914, upon sustaining a demurrer to the complaint, dismissing an action to recover an illegal payment of interest on local improvement bonds.

<p>Criminal Law—Habitual Criminals—Time foe Trial—Statutes —Construction—Repeal. The habitual criminal act of 1909 (Rem. & Bal. Code, § 2286), covering the whole subject-matter of the act of 1903, Id., §§ 2177 and 2178, and embracing new provisions, without fixing any time for the trial, was intended not only as a substitute, but to cover the whole subject-matter; and hence repeals the provision of the earlier act that the accused must be brought to trial within five days after serving the information.</p> <p>Criminal Law—Trial—Instructions—Failure to Testify. Under Rem. & Bal. Code, § 2148, providing that it shall be the. duty of the court to instruct that no inference of guilt should arise against the accused on account of his failure to testify, it is reversible error not to do so, whether the instruction was requested or not.</p> <p>Statutes—Judicial Construction—Adoption. The amendment of an act retaining language that had received judicial interpretation will be assumed to sanction the court’s construction.</p>

, entered October 10, 1914, upon findings in favor of the plaintiffs, in an action for injury to property, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered May 23, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Master and Servant — Workmen’s Compensation Act — Incidental Business—Statutes. A company engaged in the business of managing rental properties, and as incidental thereto, employing a carpenter, painters and men for electrical work wbo are constantly engaged in making alterations for the various tenants in the buildings, is engaged in the extra-hazardous business of installing electrical apparatus in buildings, of painting buildings, and of carpenter work, within the meaning of the workmen’s compensation act, 3 Rem. & Bal. Code, § 6604-2; and hence is subject to its provisions and liable for the premiums due thereunder.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered September 5, 1914, in favor of the plaintiff, in an action for an injunction, tried to the court.</p>

, entered June 4, 1914, upon the verdiet of a jury rendered in favor of the plaintiff, in an action upon a beneficiary certificate.

<p>Accord and Satisfaction—Necessity of Dispute. In an action for rent under a lease calling for one-third of the crop as rent, a letter written by the landlord before execution of the lease stating that the tenant may pay $1,000 as cash rent in lieu of the share, is not admissible as an accord and satisfaction, since at the time it was written there was no contract, no breach of contract, no controversy and nothing in dispute.</p> <p>Evidence—Parol Evidence—To Vary Writing—Informal Writings. The rule excluding parol evidence to vary the terms of a written contract applies to an informal letter written by the lessor, tending to contradict the terms of a formal written lease, executed before a notary public.</p> <p>Evidence—Parol Evidence—To Vary Writing. Where a written lease was executed January 22, 1912, calling for one-third of the crop as rent, a letter by the lessor written in December, 1911, stating that the tenant may pay $1,000 as cash rent in lieu of the share, will be deemed merged in the complete instrument and is inadmissible to vary the terms of the lease, especially where there was nothing to show that the offer was accepted or that there was any meeting of the minds with regard thereto.</p> <p>Evidence—Parol Evidence'—To Vary Writing—Admissibility—■ Appeal—Prejudice. A written contract of lease, completely embodying the transaction, free from ambiguity, not attacked for fraud, calling for one-third of the crop as rent, cannot be varied by oral evidence of an agreement to accept cash rent in lieu of the share; and the admission of such evidence is manifestly prejudicial where the verdict upon such issue covers all of the causes of action and counterclaims in one general award.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered May 15, 1914, in favor of the plaintiff, in an action for an injunction, tried to the court.</p>

<p>Application filed in the supreme court September 20, 1915, for a writ of mandamus to compel the state treasurer to pay a warrant issued upon the accident fund of the industrial insurance department.</p>

<p>Notaries—Acknowledgment—Negligence — Question eor Jury. The negligence of a notary public in taking the acknowledgment of impostors, upon a mere introduction by a person of good reputation, is a question for the jury, in view of Rem. & Bal. Code, § 8761, requiring him to certify to their identity as the parties described in and who executed the instrument.</p> <p>Notaries—Negligence—Forgery—Evidence. In an action to recover on the liability of a notary public for negligently taking the acknowledgment of impostors to a mortgage upon property owned by others of the same name residing in another state, to allege and prove a forgery it is necessary to show that the nonresidents are owners of the property mortgaged.</p>

, entered March 1915, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the enforcement of the employment agency law, tried to the court.

<p>Cross-appeals from a judgment of the superior court for Lewis county, Rice, J., entered April 27, 1914, upon findings in favor of certain claimants, in an action to contest the ownership of a fund deposited in court in payment of a local assessment.</p>

, entered August 11, 1914, upon sustaining a demurrer to the complaint, dismissing an action to recover an illegal payment of interest on local improvement bonds.

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