Volume 88 — Washington Reports

, entered June 20, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in unloading a truck.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered September 15, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Banks and Banking—Trust Companies—Powers—Saving Debt. A trust company, engaged also in the banking business, as authorized by Rem. & Bal. Code, § 3349, has all the implied power of a bank to take any steps necessary to save a debt.</p> <p>Same—Powers—Saving Debt—-Acts Ultra Vires—Intent—Question for Jury. The acts of the manager of a branch bank in taking over and operating the business of a lumber company to save the bank from loss upon a bad debt, even though without the knowledge or consent of the directors, are not ultra vires; since the bank had power to authorize the acts, if originally intended in. good faith to save a debt, which would be a question for the jury.</p> <p>Same—Manager of Branch—Apparent Authority—Question for Jury. Whether the manager of a branch bank acted within the scope of his apparent authority in taking over and operating the business of a lumber company, in order to save a debt, is a question for the jury, where it appears that for five years he was in sole charge with general authority, and the only person held out to the world as manager with whom the public came in contact, that very slight control or supervision was exercised over him, and he had repeatedly been authorized to make contracts of a similar character, the party dealing with him having no knowledge of any special authority in the prior instances.</p> <p>Frauds, Statute of—Debt of Another—Independent Contract. Where a bank had taken over and was operating the business of a lumber company to save a debt, a contract made directly by the manager of the bank with a logger relating to hauling logs and the operation of the lumber company, is not a contract to answer for the debt of another, within the statute of frauds, where the logger was informed that the bank was operating the lumber company in its name.</p> <p>Same—Oral Agreement Not to be Performed in One Year. A logging contract to cut and deliver logs for a period of two years, and a contract for hauling lumber requiring the logger to first construct a road, purchase teams and wagons, and thereafter haul the lumber for a period of one year, are void, if not in writing, under the statute of frauds, declaring void every oral agreement that by its terms is not to be performed “in one year from tbe making thereof.”</p> <p>Same—Agreement Not to be Performed in One Year—Partial ' Performance. Partial performance of an oral contract which is not by its terms to be performed within one year does not take it out of the operation of the statute of frauds.</p> <p>Same—Agreement Not to be Performed in One Year—Recovery on Quantum Meruit. Partial performance of a contract for services which by its terms is void under the statute of frauds in that it is not to be performed within one year, entitles the party rendering the service to recovery on a quantum meruit, measured by the terms of the contract, for the services rendered and accepted by the other party, upon the principle of equitable estoppel.</p>

, entered September 16, 1914, upon findings in favor of the defendants, in an action to compel the levy of a tax to pay certain indebtedness fund warrants, tried to the court.

<p>Commerce—“Interstate Commerce”—Persons Engaged In. An engineer on a switch engine hauling cars part of which were loaded with interstate freight was engaged in interstate commerce, within the meaning of .the Federal employers’ liability act.</p> <p>Master and Servant—Injury to Servant—Cause of Accident— Derailment of Locomotive—Question for Jury. Whether the cause of a switch .engine’s leaving the rails was a defective switch, or the more probable reason that the brake block on the engine was loose and dropped of£ and was run over by the drivers, is a question for the jury, where there was evidence that the padlock of the switch was out of order and would not lock, that the engine, properly lined up with the track, left the rails immediately opposite the switch block, and upon examination there was a mark upon the point of the switch rail indicating that the switch was partly open, causing the derailment.</p> <p>Same—Injury to Servant—Contributory Negligence — Federal Employers’ Liability—Statutes. Under the Federal employers’ liability act, providing that contributory negligence shall not bar a recovery, but that the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee, it is reversible error to refuse a requested instruction requiring such diminution.</p> <p>Damages—Personal Injuries—Evidence—Mortality Tables. In a personal injury case, mortality tables showing plaintiffs expectancy of life are inadmissible, where there was no evidence of permanent injuries and the most that can be said is that the plaintiff developed a neurasthenic condition after his injuries.</p> <p>Master and Servant—Injury to Servant—Defective Appliance —Evidence—Admissibility. Upon an issue as to whether the derailment of a switch engine was due to a defective switch which would not lock, evidence that a large number of children live in the immediate vicinity, is inadmissible, as opening a field for conjecture, where it is not shown that any children had ever been at or near the switch, or that the switch had been turned, except that the engine left the track at the switch.</p>

, entered August 3, 1914, upon findings in favor of the defendants, in an action to enjoin an execution sale, tried to the court.

<p>Municipal Corporations — Damages to Property — Removal of Lateral Support—Accrual of Action—Measure of Damages. Where a regrade of a street resulted in a progressive slide which, after some months, caused the removal of plaintiff’s lateral support, and his right'of action did not accrue and he could not file a claim against the city until his property had been actually invaded, on accrual of the action he could recover his whole damage, regardless of the fact that the approaching slide was a depreciating menace affecting the market value of the property for more than thirty days immediately prior to the filing of the claim; hence his damages cannot be measured by reference to the market value immediately before and after the invasion of the property or within thirty days prior to filing the claim.</p> <p>Evidence—Argumentative Questions—Assumption of Facts. Argumentative questions not based upon anything then in evidence are properly excluded.</p> <p>Appeal—Review—Harmless Error—Evidence. It is not prejudicial to exclude evidence that was later admitted, or where the same had been previously covered.</p> <p>Damages—Values'—Opinion Evidence—Assuming Facts. In an action for the removal of lateral support by a progressive slide, upon an issue as to the value of the property, it is proper, on cross-examination, to ask an expert as to his opinion of the value on a specified date, assuming that the slide had progressed to a point indicated by the evidence of the adverse party on that date.</p> <p>Evidence—Parol Evidence—Consideration. It is admissible to show by parol that an assignment of a claim in suit, absolute in form, was made as part of the consideration and as additional security for an extension of time upon a mortgage, and to show the true nature of the transaction.</p> <p>Judgment—Res Judicata-—Evidence—Admissibility. Where no evidence was offered in support of a defense that a judgment in condemnation was res judicata of the matters in issue in the present action, the judgment in the former action and judgment roll are properly excluded.</p> <p>Appeal—Review—Harmless Error—Evidence. It is not prejudicial error that certain evidence was excluded, where the only fact which it was competent to prove was assumed by the court in its instructions to the jury.</p> <p>Damages—Removal oe Lateral Support—Interest. In an action for the removal of lateral support by a progressive slide, resulting finally in the destruction of buildings, interest cannot be allowed on the value of the buildings prior to the time they were destroyed.</p> <p>Appeal—Decision—Modification—Costs on Appeal. Where illegal interest included in a verdict can be calculated and deducted, the correction will be made on. appeal, without remanding for a new trial, or costs to the appellant who failed to correct the matter below where it was called to his attention.</p>

, entered April 15, 1915, upon sustaining a demurrer to the complaint, dismissing an action for an injunction, tried to the court.

<p>Railroads—Sale of Road—Liability of Purchaser—Tobts. A railroad company purchasing a right of way and roadbed, is not liable for damages committed by its predecessor in interest or the contractor who built the roadbed, occasioned by diverting the flow of a stream, when bluffs were blown off into the natural channel during the course of the construction of the road.</p> <p>Same—Sale of Road—Liability of Pubchaseb—Statutes. In such a case, Rem. & Bal. Code, § 8737, requiring railroads to restore streams crossed or touched to their former state and pay any damages caused by the construction of the road has no application, where it is not claimed that the roadbed was maintained in the course or channel of the river or encroached upon or interfered with the original channel.</p>

, entered March 5, 1913, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to cancel a tax levy.

, entered May 12, 1914, dismissing an action to subject property to a judgment, after a trial on the merits to the court.

<p>Pledges—Enforcement — Sale — Public Notice — Necessity. A pledgee’s sale of a certificate of stock to satisfy the debt for which it is pledged is invalid unless had upon public notice, under the rule at common law requiring a public sale, there being.no statutes in this state governing the procedure.</p> <p>Corporations— Stock — Transfer — Duty of Officers — Invalid Sale—Equity—Relief. The purchaser of a certificate of stock at an invalid pledgee’s sale cannot demand a transfer on the books of the corporation, notwithstanding he holds the original stockholder’s blank power of attorney made at or before the time of making the pledge; since the officers of the corporation owe the duty to ascertain whether the transfer was authorized, and a court of equity will not decree a transfer to a person who has no interest in the stock.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered September 24, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Liens—Chattel Liens—Filing—County — Situs op Property— Evidence—Sufficiency. Under Rem. & Bal. Code, § 1155, providing that a chattel lien shall be ineffectual unless a proper notice of lien is filed in the office of the auditor “of the county in which the chattel is kept,” a lien for labor and materials upon a logging truck completed and delivered at O. in T. county in May, and then delivered for transportation, is not established by proof of the filing of the lien notice in T. county on August 20th, which, on about that day, was sent with proof of its filing, to the sheriff of P. county, where the truck had been for some time, there being no evidence that the truck was in T. county at the time the notice was filed, and no filing of the notice in P. county.</p> <p>Liens — Chattel Liens — Filing — Necessity — Validity As Between Parties—Bona Fide Purchasers. A chattel lien for labor and materials upon a logging truck is not good, as between the parties, unless it is filed in the county where the truck was situated at the time the notice of lien was filed, as required by Rem. & Bal. Code, §1155; and §1154, providing that no such lien shall continue as to third persons acquiring an interest with notice, after delivery of the chattel to the owner, merely means that a chattel lien does not relate back to the time of delivery, as against other tona fide lien holders.</p>

<p>Waters and Water Courses—Irrigation — Contracts —■ Fraud— Evidence—Sufficiency. Fraud in representing that eighteen inches of water was sufficient to irrigate a tract of land is not shown by evidence that this was a mistaken conclusion by the water company, where it was concurred in by numerous parties who had investigated the matter.</p> <p>Same—Irrigation—Contracts—Sufficiency of Supply—Evidence —Sufficiency. A finding that eighteen inches of water was sufficient to irrigate a tract of land is not sustained by the evidence, and will be set aside on appeal, where it was based on the “estimate” of a witness, rather than an actual measurement, and numerous witnesses who qualified as experts testified that it was insufficient and that thirty inches was needed to farm successfully.</p> <p>Same — Irrigation — Contracts —> Construction. A contract for water rights to irrigate arid land, agreeing to convey one-half the tract in consideration of a water supply “to the extent of one and one-half acre feet per year, or so much thereof as shall be required for irrigating,” entered into under the mistaken conclusion that the supply would he sufficient to reclaim the land retained, will he construed as an undertaking to furnish sufficient water to reclaim the land, where the agreed upon amount was insufficient and practically of no value and an entirely inadequate consideration for the land conveyed.</p> <p>Specific Performance—Contracts Enforcible—Inequality—Inadequacy of Consideration. Specific performance of a contract to convey land in consideration of a specified water supply for irrigation, entered into upon the representation that the supply would he adequate to reclaim the land retained by the vendor, will not be decreed where the contract was unequal, and it would work a hardship and the consideration is entirely inadequate, although inadequacy of consideration is not alone sufficient ground for refusal to decree specific performance.</p> <p>Waters and Water Courses—Irriqation—Lien for Charges. A lien for unpaid water rates for the irrigation of arid land will not be decreed where the contract was unconscionable and upon an entirely inadequate consideration.</p> <p>Appeal—Briefs—Striking — Discourteous Language. Upon motion to strike appellants’ brief, which was discourteous to the trial judge and deserved more than censure, appellants will be penalized, on reversing the judgment, by denying costs for printing the brief, rather than by granting the motion and involving delay and additional costs.</p>

, entered September 1, 1914, upon findings in favor of the defendants, in an action for an injunction, tried to the court.

<p>Judgments—Bab—Res Judicata—Matters Concluded. The dismissal of an action to recover attorney’s fees, under an express contract to pay one-half of the valúe of lands recovered, for the reason that the defendant was incompetent to make the contract, is not a bar to a subsequent action to recover on quantum, meruit against trustees under a will, who, upon an independent consideration, had agreed to pay whatever fees might be allowed for the plaintiffs’ services as attorneys; the reasonable value of the services performed not having been in issue in the former action.</p> <p>Attorney and Client — Compensation — Contracts — Construction. A compromise of a pending case in which the plaintiffs’ attorneys had a contract for an attorney’s fee equal to one-half of the value of property which they might recover, whereby the suit was dismissed and trustees under a will agreed to pay “whatever attorney’s fees are allowed or established in their favor,” is an original undertaking on the part of the trustees to pay the attorney’s fees allowed them, when determined in an action brought for that purpose.</p> <p>Same. Such an agreement is not an assumption of the client’s contract to pay a fee equal to one-half of the value of the property recovered; but an obligation to pay the reasonable value of the services performed.</p> <p>Appeal—Decision-—Conclusiveness—Dictum. A decision on appeal, affirming the dismissal of an action by attorneys to recover a fee on an express contract, which expressly finds that defendants obligated themselves to pay the reasonable value of the services, is not mere dictum, but is conclusive on the right of plaintiffs to maintain another action upon quantum meruit.</p> <p>Frauds, Statute of—Independent Promise—Parties. Where, for a valuable consideration, one promises to another to pay his debt to a third person, the latter may maintain an action thereon in his own name.</p> <p>Compromise and Settlement—Consideration—Performance or Breach. Where, by a compromise of a pending suit, it was agreed that the suit should be dismissed and certain property conveyed to trustees under a will, the consideration for the trustees’ agreement therein to pay the attorney’s fees in such suit does not fail by reason of the fact that the identical deed mentioned was not delivered to the trustees, where, by another deed, the compromise was fully carried out by vesting the trustees with full title to the property; nor by the fact that the suit was not dismissed, where the continuance of the same for the purpose of determining the question of attorney’s fees and the validity of the compromise was not due to any act of the attorneys for the plaintiff.</p> <p>Executors and Administrators — Contracts — Actions — Claim Against Estate. Failure to file a claim against an estate is no defense to an action against trustees under a will for the reasonable value of attorney’s services, rendered to a third person, when the trustees, upon an independent consideration, had agreed to pay the attorneys the reasonable value of their services.</p> <p>Same—Contracts—Liability op Trustees—Estate Bound. Trustees under a will, who acquired property through a compromise of a pending suit in consideration of their agreement to pay certain attorney’s fees, cannot escape liability on their promise, to the extent of the property acquired by them, by asserting want of their authority to bind the property and estate theretofore held by them under the will.</p> <p>Appeal—Preservation op Grounds—Objections. Where a specific objection is made to a hypothetical question, error cannot be predicated on appeal upon various other objections thereto not stated below.</p> <p>Appeal — Preservation op Grounds — Failure to Request — Instruction. Error cannot be predicated upon misconduct of a party, during the cross-examination of a co-party, where no request was made to instruct the jury to disregard the objectionable remarks and evidence, nor claim made that the conduct was so flagrant that it could not be cured by an instruction.</p> <p>Appeal—Review—Discretion—New Trial. The discretion of the trial court in refusing a new trial for misconduct in the examination of a witness will not be reviewed except for abuse.</p> <p>Witnesses—Competency—Transactions With Deceased—Action on Trustees’ Independent Contract. In an action against trustees under a will to recover upon their independent contract to pay the reasonable value of services rendered by attorneys to a third person, since deceased, there is no room for the application of Rem. & Bal. Code, § 1211, prohibiting evidence by a party in interest of transactions with the deceased, where the adverse party sues or defends as executor or administrator; hence evidence of transactions with the deceased client, leading up to plaintiff’s employment, is not inadmissible.</p> <p>Attorney and Client—Compensation—Services—Evidence—Admissibility. In an action for the reasonable value of attorney’s fees in a certain suit, the evidence of their services and expenses in an ancillary suit which .was necessary to secure title to the property in suit, is admissible.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered January 26, 1915, upon granting a nonsuit, dismissing an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered October 21, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger entering a street car.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheets, J., entered February 8, 1915, upon findings in favor of the plaintiffs, in an action on promissory notes and an open account, tried to the court.</p>

<p>Mechanics’ Liens—Foreclosure—Notice of Lien—Description— Separate Tracts. Where a notice of a mechanics’ lien upon farm buildings described three separate and noncontiguous tracts of land without showing upon which tract the buildings were situated, there can be no foreclosure of the lien where there was no evidence that the three tracts were used as one farm and that the buildings served all three, nor upon which tract they were located.</p>

<p>Appeal—Decisions Reviewable—Cessation op Contkoveksy—Accepting Payment. Where the verdict and judgment in an action involving several claims and counterclaims represented the net result of the entire controversies, acceptance of payment of the final judgment and satisfaction thereof, works a cessation of the controversy; and an attempted appeal from that part of the judgment withdrawing certain counterclaims from the consideration of the jury will be dismissed.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered April 14, 1915, upon sustaining a demurrer to the information, dismissing a prosecution for attempted abduction.</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>Schools and School Districts—Injury to Pupil—Negligence— Contributory Negligence — Appliances Attractive to Children — Questions for Jury. The questions of negligence and contributory negligence in the maintenance and use of ladders for exercise in the play room of a school, are for the jury, where it appears that a horizontal ladder, seven feet from the .floor, was reached by a perpendicular ladder against the wall, that no mats were placed on the concrete floor to minimize the danger, that the horizontal ladder was higher than necessary and was not supposed to be used by small children, who used the room, and that a child, six years of age, who had been told not to use the ladders and knew it was wrong, did so at a time when no superiors were present, and fell and broke her arm.</p> <p>Same—Negligence—Play Grounds—Acts in Governmental Capacity—Liability—Common Law. A school district is only a quasi corporation, and in the- maintenance of exercise ladders in a play room, is exercising only a governmental function, and is not, at common law, liable for injuries resulting from its negligence in the premises.</p> <p>Same—Statutes—Construction. A school district is liable to a pupil who is injured through the negligence of the district in the maintenance of dangerous exercise ladders in a play room, under Rem. & Bal. Code, § 951, providing that an action may be maintained against a school district for an injury to the rights of the plaintiff arising from some act or omission on its part.</p> <p>Appeal—-Decision—Rule of Decision. Under the principle of stare decisis, a long line of decisions declaring a doctrine as to the liability of public corporations in certain cases ought not to be departed from except for urgent reasons.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered July 21, 1914, upon the verdict of a jury rendered in favor of the defendants, in an action for malicious prosecution.</p>

<p>Landlord and Tenant—Lease — Covenant for Improvements by Tenant — Breach — Damages — Waiver. Upon tbe surrender of a lease, the lessee is not liable in damages for the breach of its covenant to put in a new store front and make certain improvements, where the work was abandoned with the consent of the lessor, who took possession and rented the premises to new tenants in the condition they were then in, with the privilege of making such improvements as the new tenants desired; since the covenant was waived by the lessor.</p> <p>Same—Lease—Covenants for Improvements—Intent—Waiver— Evidence. In such a case, where the covenant was to put in a new store front costing not less than $750, the fact that a bond given by the lessee to secure performance was a bond of indemnity only, is some evidence of the intention of the parties that the agreement was to indemnify the lessor against loss, rather than the assurance of a liquidated indemnity irrespective of actual loss or of waiver of the covenant.</p> <p>Same. It is also evidence of waiver by the lessor that the agent of the lessor stated to the agent of the bonding company that the lessor desired to waive the requirement for the store front under the plans theretofore agreed upon and that the company conditionally consented to the abandonment of putting in the front; as the lessor could not change the plans agreed upon and insist upon a front of another kind without waiving the covenant.</p> <p>Same. It is competent, to show a waiver of the lessee’s covenant to make certain improvements in the upper story, to prove that the upper story had been sublet and partitions put in suitable to the subtenancy, that the lessor had accepted the tenancy of the sublessee, without requesting performance of the covenant, and that removal of the partitions would have amounted to an eviction.</p> <p>•Same—Covenant foe-Improvements—Damages. In an action for damages for breach of the lessee’s covenant to make certain improvements, the lessor must elect whether to treat a vault as a damage to be removed or as an improvement, and cannot recover the cost of removal and also the value of iron doors, which were removed by the lessee.</p> <p>Same—Covenant foe Improvements—Measure of Damages. The measure of damages for the lessee’s breach of covenant to make improvements is the actual loss sustained, whether it be the cost of restoring the building or the reasonable cost of making the improvements.</p>

<p>Injunction •—■ Building Ordinances — Reasonableness — Police Power—Jurisdiction. The courts will not enjoin the enforcement of a building ordinance as an unreasonable exercise of the police power, where it was not unreasonable per se, merely because the owner, a short time previously, at considerable expense, had complied with existing requirements, and conditions had not changed.</p>

<p>Contracts'—Building Contracts—Performance. The failure to lay oak floors until long after the time provided in the contract for the completion of a $10,000 dwelling, shows that the building was not substantially completed on time.</p> <p>Same—Building Contracts—Performance—Architect's Certificate—Evidence. Where a building contract provides that the completion of the work shall be “evidenced by the architect’s certificate,” such evidence is the only method of proving the fact, and a condition precedent to action, unless the architect acts fraudulently or arbitrarily; and other evidence of the completion of the building is inadmissible (Per Mount, Holcomb, Chadwick, and Ellis, JJ.).</p> <p>Vendor and Purchaser—Contracts—Performance—Forfeiture— Waiver. Where the purchaser of lots agreed to construct a house thereon within a specified time, and gave a mortgage for $750 to secure the stipulated damages for failure to complete the building on time, the vendor’s satisfaction of the mortgage after knowledge that the building had not been completed on time constitutes a waiver of the forfeiture.</p> <p>Contracts — Building Contracts — Performance—Architect’s Certificate—Evidence. A building contract which provides that the completion of the work shall be “evidenced by the architect’s certificate,” does not make the architect an umpire between the parties, but only makes his certificate prima facie evidence as to the performance of the contract, and his refusal, in the absence of arbitrary action, prima facie evidence of nonperformance (Per Main, Parker, and Fullerton, JJ., and Morris, C. J.).</p>

, entered December 14, 1914, in favor of the plaintiffs, vacating an assessment roll for a public improvement, tried to the court.

<p>Prostitution—Indictment — Suppiciency — Accepting Earnings op Prostitute. An information charging, in the language of the statute, the accused with accepting the earnings of one G. B., she then and there being a common prostitute, sufficiently charges the offense of accepting the earnings of a prostitute; it not being necessary to specify that the earnings so given were unlawful earnings accepted for an unlawful purpose, or to state specifically what was received.</p> <p>Criminal Law — Indorsement op Names op Witnesses — False Names. That the names of witnesses for the state indorsed on the information were false names or aliases is not ground for striking their testimony, where the fact developed upon their cross-examination and it is not shown that the accused was not apprised of their identities; since he was not prejudiced.</p> <p>Criminal Law—Variance—False Name—Prejudice. In a prosecution for accepting the earnings of a prostitute, a variance between the information and the proof, in that the name of the prostitute as given in the information was false or an alias, is not material where it is not shown that the accused was not apprised of her identity.</p> <p>Prostitution — Accepting Earnings op Prostitute — Evidence ■— Suppiciency. In a prosecution for accepting the earnings of a prostitute, whether the accused accepted her money or knew that it was the earnings of a prostitute, is a question for the jury, where it appears that he allowed one R. to place girls in his hotel, saying he would take care of them, and accepted money from R. from time to time for protection, and that the girls paid R. for protection and had an arrangement with him to pay him a certain sum from their earnings.</p>

<p>Municipal Cobpobations — Public Impbovements — Payment oe Claims—Assessment Fund—Peobating Claims. Where a contract- or upon a local improvement defaulted, but recovered judgment against the city upon a quantum meruit for the value of his services and the materials used by the city in completing the work, the city cannot prefer itself for advances by taking cash on hand and the first of the series of bonds issued, payable in the order of their issuance out of the local improvement fund, which was probably insufficient to pay all the claims; but must pay claims pro rata out of funds on hand and issue bonds alternately to the different claimants including the city, so that all may stand upon an equality.</p> <p>Intebest—Liquidated Claims—Stipulation. Where, in an action upon an unliquidated demand against the city, the city stipulated for judgment in a certain sum, the demand becomes liquidated and bears interest from the date of the stipulation.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered March 1, 1915, upon findings in favor of the defendant, in an action of replevin, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered January 23, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a cannery.</p>

, entered March T3, 1915, in favor of the defendant, upon sustaining a demurrer to the complaint, in an action for libel.

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered August 4, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malpractice.</p>

, entered June 15, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian in falling into an excavation.

<p>Appeal—Review—Findings. Findings of the lower court will not be disturbed on appeal where there is no preponderance of the evidence against them.</p> <p>Contracts — Written Contracts — Oral Agreement — Merger. Where a written contract for the sale of brick fixed the price at $17.25 per thousand, any previous oral bargain for a less price is merged in the written contract.</p>

<p>Partnership—Liabilities to Third Persons—Authority op Partner—Presumptions. A copartnership for the purpose of constructing a drainage ditch is a nontrading partnership, and the presumption is that one partner has no power to bind the other unless authority had been conferred by the articles, or by special authority, or by custom.</p> <p>Same—Authority op Partner—Scope op Partnership. The sale by one partner of bonds given to a copartnership in payment for work done and completed is not within the scope of the partnership, and hence is invalid where, by the articles of copartnership, the bonds were to be received and sold by the other partner; the sale not having been necessary to pay debts or carry on the business.</p> <p>Same—Authority op Partner—Assets—Conveying Title—Dissolution. Such sale would be invalid, also, because the work having been completed and the object of the' partnership accomplished, there being no partnership debts, the situation was analogous to a dissolution and neither partner could convey title to the assets without the other’s consent, except as limited hy the contract.</p>

<p>Carriers—Injury to Passengers •—■ Taking on Passengers — Sudden Jerks—Physical Laws-—Question for Jury. It is for the jury, and not for the court, to say whether it was physically possible that a passenger, boarding a cable car, was swung around and thrown into the seat, instead of backward into the street, when the car was started forward with a sudden jerk, where she had stepped onto the running board and her hold on the stanchion was loosened by the movement of the car; since her efforts tended to counteract the forces engendered by the movement of the car, and arbitrary deductions from physical laws can be made only when so clear and irrefutable as to exclude all others.</p> <p>Damages—Personal Injuries—Excessive Verdict. A verdict for $4,000 for injuries sustained by a woman, entering a street car, will not be set aside as excessive, where she received a permanent injury to her knee which unfits her for the pursuit in which she earns her livelihood, and it does not appear grossly disproportionate to the injury.</p>

<p>Constitutional Law-—■ Rules of Construction. Constitutional provisions having a general and a restricted meaning must be taken in their general or ordinary sense.</p> <p>Same—Personal Liberty—Imprisonment eoe Debt—“Debt.” A judgment in an action for tort is a “debt,” within Const., art. 1, § 17, providing that there shall be no imprisonment for debt except in case of absconding debtors.</p> <p>Same. Punitive damages not being recoverable in this state, arrest under a judgment in a civil action for tort cannot be justified as a vindication or as punishment for the wrong done.</p> <p>Same. Rem. & Bal. Code, § 749, authorizing the arrest and imprisonment of a judgment debtor upon execution against his person in certain civil actions not arising out of contract, violates Const., art. 1, § 17, providing that there shall be no imprisonment for debt except in ease of absconding debtors.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered January 2, 1915, in favor of the plaintiff, notwithstanding the failure of the jury to agree, in an action for conversion.</p>

, entered June 22, 1914, in favor of the plaintiff, notwithstanding the verdict of a jury rendered in favor of the defendant, in an action on a promissory note.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered November 23, 1914, in favor of the plaintiff, in an action for money paid, tried to the court.</p>

<p>Abortion—Indictment and Information—Duplicity—Sufficiency—Means Employed. Under Rem. & Bal. Code, § 2448, defining tbe offense of abortion as (1) administering any medicine or drug, or (2)using any instrument, witb intent to produce a miscarriage, an information charging, in tbe language of tbe statute, tbe accused witb administering to A. L. drugs and medicines unknown to tbe prosecutor, and using upon ber person an instrument unknown to tbe prosecutor, for tbe purpose of causing a miscarriage, is not open to tbe objection of duplicity in that it states distinct offenses, or that it is insufficient in failing to allege tbe means employed.</p> <p>Criminal Law—Trial—Instructions—Requests—Sufficiency— Nondirection. A requested instruction, inartificially drawn and directing too strongly a finding of innocence upon tbe sole question of intent, does not, by calling tbe court’s attention to that special phase of tbe question, make it reversible error for tbe court to fail to give a proper instruction specially covering tbe point, in tbe absence of a specific request for an instruction, good in point of law and appropriate to tbe evidence, where tbe court by general instructions correctly and clearly charged as to what was necessary to be proven beyond a reasonable doubt, etc.</p> <p>Same—Trial—Witnesses—Credibility of Impeached Witness— Immorality—Instructions. Upon tbe impeachment of a female witness by showing ber immoral acts, tbe jury is not to be instructed that it is their duty to disregard ber testimony if they believed that she bad lost respect for truth or was ready to perjure herself in ber own interest, as tbe same would be unlawful comment on tbe evidence; but should be instructed that they are tbe judges of tbe credibility of tbe witnesses, and may take into consideration their former life or conduct and addiction to immoral habits, etc.</p>

<p>Homicide—Degbees—-Manslaughter — Evidence — Instructions. Under the criminal code of 1909 (Rem. & Bal. Code, §§ 2390-2406), relating to homicides which, by a process of elimination, defines manslaughter as the killing of a human being without justification or excuse when (1) committed without design to effect death and without premeditation, or (2) perpetrated by a person engaged in the commission or withdrawing from the scene of a crime other than a felony, the accused is not entitled to an instruction upon the subject of manslaughter, where it appears by his own testimony that the killing was with the admitted design to effect death and was not in any manner connected with any offense less than a felony.</p> <p>Same—Degrees—Premeditation — Evidence in Mitigation — Admissibility. In a prosecution for murder in the first degree, evidence tending to show that the killing was without premeditation is admissible in mitigation and to reduce the crime to murder in the second degree.</p> <p>Same—Premeditation—Provocation—Question for Jury. Upon an issue as to premeditation and deliberation, what would he a reasonable provocation is a question for the jury, whenever it can be said that the alleged provocation would have any reasonable tendency to produce sudden and uncontrollable anger and heat of blood in an ordinary man.</p> <p>Same—Premeditation—Reasonable Cooling Time—Question for Jury. Upon an issue as to premeditation and deliberation, what would be a reasonable cooling time is a question for the jury, except where it can be said that, giving the evidence every reasonable inference that can be drawn from it favorable to the defendant, the minds of reasonable men could not differ in the conclusion that a reasonable time had elapsed.</p> <p>Same—Premeditation—Sudden Anger—What Constitutes—-Evidence—Sufficiency—Question for Court. Upon an issue as to premeditation, the court must say, as a matter-Of law, that a curnulatiye_.resjilt_of repeated reminders of a single act of provocation occurring weeks before, had no tendency to prove sudden anger in mitigation, and such evidence^wás" accordingly inadmissible to reduce the offense to second degree murder* where it was sought to be shown by defendant’s testimony that he* was subjected by the deceased to the outrage of an unmentionable crime, and left unconscious, on the evening of April 19th; that, meeting the deceased the next day, he upbraided him for the action, hut condoned the offense, requesting the deceased not to mention it to any one; that thereafter the deceased circulated the story, and the accused was continuously ridiculed by his countrymen, until it preyed upon his mind and he became sick and afflicted with severe headaches, and that this culminated on May 6th in such ridicule that, in his weakened condition, he lost control of his reason and became so enraged that he rushed home, secured a revolver with the design of avenging himself, and shot the deceased while he was asleep in bed.</p> <p>Same—Mitigation — Premeditation — Mental Irresponsibility. The fact that such evidence is more compatible with mental irresponsibility amounting to temporary insanity, has no bearing on the question of mitigation on account of sudden anger and heat of blood, where the defense of insanity was not pleaded as required by Rem. & Bal. Code, § 2174, but was expressly disclaimed.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered June 2, 1914, upon granting a nonsuit, dismissing an action in tort, tried to the court and a jury.</p>

<p>Damages—Liquidated Damages—Contracts—Construction. It is the policy of the courts to hold parties to their expressed contracts for “liquidated damages,” rather than construe the same as providing a penalty.</p> <p>” Same—Liquidated Damages—Actions—Burden of Proof. Where a contract on its face provides for “liquidated damages,” the burden is upon the defendant to prove the situation of the parties as to profit or damage, if he wishes to show that only a penalty was intended.</p> <p>Same—Liquidated Damages or Penalty—Contracts—Construction. A contract for laundry work at reduced rates, guaranteeing to furnish work to the amount of eighteen hundred dollars a year, and providing that, in case of failure so to do, the difference between the amount actually furnished each year and said sum of eighteen hundred dollars, shall be the “measure of damages” accruing to the laundryman and “is hereby agreed as liquidated damages,” is a contract for liquidated damages and not merely for a penalty; inasmuch as the actual damages are difficult of ascertainment, and the damages automatically regulate themselves according to the degree of the breach.</p>

<p>Fixtures — Removal — Rights oe Mortgagor. Structures of a permanent character erected upon mortgaged premises by the owner of the fee. are presumptively for the purpose of improving the land and become subject to the mortgage without right of removal.</p> <p>Same. The strict rule against the removal of improvements affixed to the real estate applies as between mortgagor and mortgagee, even if the additions were made after execution of the mortgage; and notwithstanding a mortgage constitutes only a lien in this state.</p> <p>Mechanics’ Liens—Mortgages—Priority-—-Statutes. A mechanics’ lien is inferior to the lien of a prior real estate mortgage recorded prior to the commencement of the furnishing of the labor or material, under Rem. & Bal. Code, § 1132, providing that mechanics’ liens are preferred to any mortgage which may attach subsequently to the time of the commencement of the work and to those that attached previously and were not filed or recorded so as to create constructive notice and of which the lien claimant had no notice.</p> <p>Same—Lien on Building — Removal — Statutes. Rem. & Bal. Code, § 1146, providing for the removal and sale from the land of property subject to a mechanics’ lien, in case the title or interest in the land'cannot be subjected to a lien, has application only to eases where the work or materials were furnished at the instance of a party owning less than the fee, and not to liens placed by the owner of the fee on premises subject to prior mortgages.</p> <p>Fixtures — Buildings — Removal — Rights oe Mortgagor. The practicability of removing a small building from mortgaged premises is not alone sufficient to impress upon it the character of personal property.</p> <p>Mortgages—Foreclosure — Priorities — Mechanics’ Liens — Attorney’s Fees. Upon the foreclosure of a prior mortgage, the stipulated attorney’s fees are not to be postponed to subsequent mechanics’ liens for labor and materials in the construction of a house upon the premises, on the theory that the fees arose subsequently to the inception of the liens.</p>

<p>Appeal from a judgment of the superior court for Chehalis county,- Sheeks, J., entered November £1, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

<p>Application filed in the supreme court October 18, 1915, for a writ of prohibition to prevent the superior court for Pacific county, Edward H. Wright, J., from granting a change of venue “in a prosecution for burglary.</p>

, entered May 20, 1914, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.

<p>Appeal—Review—Verdict. A verdict upon conflicting evidence is conclusive, where the questions of fact were properly submitted to the jury.</p> <p>Municipal Corporations—Streets — Crossing Accidents — Contributory Negligence. A boy fifteen years of age, struck by an automobile, when a few feet from the curb while attempting to cross a street at a crowded corner in the business district of Seattle, is guilty of contributory negligence, as a matter of law, precluding any recovery for his injuries, where he started to cross the street, taking two or three steps, without looking for the approach of vehicles or paying the slightest heed to his surroundings.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered October 28, 1914, upon sustaining a demurrer to the complaint, dismissing an action for damages for breach of contract.</p>

<p>Appeal—Bond—Time oe Filing—Necessity on Cross-Appeal. Under the statute providing that an appeal shall become ineffectual for any purpose unless the appeal bond be filed within five days, a cross-appeal must be dismissed where the bond, though executed in time, was not lodged in the clerk’s office until seven days after filing the cross-appeal, as the cross-appeal is an independent proceeding.</p> <p>Appeal—Review—Right to Allege Error—Dismissal oe Cross-Appeal. Errors assigned by a cross-appellant cannot be considered after dismissal of the cross-appeal, even in an equity case tried de novo on appeal.</p> <p>Waters and Water Courses—Water Company—Acquisition by City—Payment—Time of Transfer—Possession and Profits. Where a city decided to purchase a waterworks plant, and had not the present means to pay for it, and bonds to raise the money must be ratified by vote of the people, the company is entitled to the possession and profits of the plant until it is paid for.</p> <p>Same—Acquisition of Waterworks by City—Valuation—“Actual Cost”—Franchises—Construction. Under a clause in a water company’s franchise requiring mains to be lowered at the “company’s expense,” such expense is part of “the actual cost” of the plant, within the clause fixing the price at which the city could purchase, where there was abundant expert evidence that it was a “plant” cost and not an operating expense.</p> <p>Same. The same would be true of the installation of meters which will pass to the city, and which were paid for by the company in the water allowance to consumers.</p> <p>Same—Valuation of Plant—“Overhead Charges.” Where, six years prior to the acquisition of a water plant by a city, the books of the construction company showed the cost to be $63,190, and it was purchased by individuals interested in the company for the price of $70,000, the difference, $6,810, should not be allowed as part of the “actual cost” of the plant to be paid by the city, upon the claim that it was a reasonable sum as overhead charges which had not been entered on the company’s books; in view of the lapse of time and the interest of the individuals in the company, and lack of precision in the evidence, which disclosed that the apportionment of the company’s overhead charges on this and similar projects was speculative.</p> <p>Same — Valuation of Plant — Interest During Construction. “Interest during construction” upon additions to a waterworks system, paid for out of earnings of the plant and personal advances by the owners without issuing bonds or incurring general loans, is properly allowed as part of the “actual cost” of a water plant, upon its acquisition by a city.</p> <p>Same—Valuation—Cost of Additions—Tender. Upon the acquisition of a waterworks plant by a city, under its right to purchase the same at “actual cost,” the expense of additions to the plant after notice of purchase had matured but before tender is properly part of the cost.</p> <p>Specific Performance—Contracts Subject to—Ambiguity—Tender of Ability to Perform. Specific performance of a clause in the franchise of a water company, wherein it engaged to sell the plant to the city, will not be decreed, where the contract was not free from ambiguity, and the city’s announcement of its intention to purchase was a doubtful compliance with the contract, and the city did not tender the price and was not ready and of present ability.</p> <p>Same—Decree—Scope of Relief—Conditions. In an action for specific performance of a clause in the franchise of a water company, wherein it engaged to sell the plant to the city, the court has no authority to order a bond election, which was necessary to raise the money to pay the purchase price, although it can fix the time within which tender shall be made.</p>

<p>Evidence—Parol Evidence to Vary Writing—Ambiguity. There is an ambiguity as to whether the writer of a letter intended to bind himself personally, making parol evidence of the actual intention admissible, where a letter head of a corporation was used and he signed himself as vice president of the company, but used the personal pronoun “I” in speaking of the agreement and the plural in referring to other matters.</p> <p>Corporations—Stock—Contract to Purchase—Validity—Estoppel. A long explanatory letter by the vice president of a corporation in which he expressed to a discontented stockholder a willingness to “enter into an agreement” to buy back the stock, without specifying the terms of the agreement and containing no words o'f present promise, is not an enforceable contract to repurchase the stock.</p>

<p>Liens—Labor Liens—Surveyors—“Improves.” A civil engineer is not entitled to a lien upon lands for surveying and placing stakes and monuments in platting the land, under Rem. & Bal. Code, § 1131, giving a lien upon lands to one who clears, grades, fills in or “otherwise improves” the same.</p>

<p>Appeal from a judgment of the superior court for King county, Mitchell, J., entered January 14, 1915, in favor of the defendants, dismissing an action of replevin, tried to the court.</p>

<p>Deeds—Construction—Reservations. Where a railroad company had, by agreement with the purchasers, the right to remove gravel from lands under contract of sale, and subsequently conveyed the premises to the purchasers by warranty deed without mention of the gravel contract, the deed reconveyed all interest acquired under the gravel contract; and in continuing to remove the gravel, the company acted as a wrongdoer or mere licensee.</p> <p>Deeds-—Covenants—Reservations—-Effect as to Strangers. A deed from such purchasers to another, reciting that it was “subject to” the railroad contract for gravel, did not revive the company’s right to remove the gravel, as the covenants ran only between the parties to the deed, and did not inure to the benefit of a stranger thereto.</p> <p>Appeal-—-Preservation of Grounds—Costs. Error cannot be predicated on the failure to allow costs in an equitable action, where costs were not claimed below; costs not following the prevailing party in equity as a matter of right.</p> <p>Appeal—Supersedeas Bond—Liability—Appellant Not Originally Liable—Judgment on Remittitur. Where, upon the foreclosure of a mortgage, a defendant not liable for the debt gave notice of appeal from the judgment and the whole thereof, together with a supersedeas bond in the requisite amount and so conditioned as to stay the whole judgment and to satisfy and perform the judgment appealed from in case it be affirmed, on affirmance the remittitur properly directs judgment against the appellant and its sureties for the full amount of the debt, although it was not originally liable therefor.</p> <p>Same—Judgment—Payment by One Defendant—Subrogation— Right of. In such case, the appeal having been in good faith to protect a supposed right, the appellant is not a mere volunteer, and on payment of the judgment in full, is entitled to be subrogated to plaintiff’s rights in and to the specific lien of the judgment, with the right to satisfy it by a sale of the property.</p> <p>Appeal—Right to Allege Error—Respondent. Respondent, not having appealed, cannot urge error in the matter of the costs allowed.</p>

, entered March 8, 1915, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries sustained through a defective sidewalk.

<p>Waters and Water Courses—Prescriptive Rights—Loss—Waste. A prescriptive right to use, for the irrigation of nonriparian land, a specified quantity of the flow of a stream, is not affected by the fact of a wasteful use of additional water.</p> <p>Same — Prescriptive Rights — Continuous Use—Changes in Point of Diversion. Changes in the point of diversion of the waters of a stream, for use by right of prescription on nonriparian lands, all upon the owner’s riparian lands and within a distance of two hundred yards, do not affect the continuity of the adverse use as against other riparian owners.</p> <p>Same—Prescriptive Rights—Consent. Consent to the diversion of the waters of the stream at another point on other lands, does not show that the diversion and use at the point in question was not adverse or by consent of a lower riparian owner.</p> <p>Same—Prescriptive Rights—Hostility of Use—Injury to Riparian Rights—Subsequent Diminution of Supply. Inasmuch as riparian owners may enjoin any diversion of the waters of the stream, even if only nominal damages are suffered, tlie fact that an adverse diversion and use of one and one-third cubic feet per second of the waters of a stream did not, during the earlier years of the prescriptive, period, cause lower riparian owners any loss or damage nor interfere with their rights until the supply had become greatly diminished, does not prevent the use from ripening into a prescriptive right.</p> <p>Same—Prescriptive and Reparian Rights—Diminished Supply— Apportionment. Where a riparian owner acquired by prescription the right to divert one and one-third cubic feet per second of the flow of the stream for use on nonriparian lands, but did not divert more than one-third of the volume of the stream, leaving, during the prescriptive period, for the use of riparian lands, two-thirds of the flow of the stream, and subsequently there was a great diminution of the supply and flow, his prescriptive right should be limited to one-third of the diminished flow, leaving two-thirds thereof to be equally apportioned to riparian lands.</p> <p>Costs—Prevailing Party—Costs on Appeal. Where appellant has been deprived of all riparian rights, and on appeal was restored thereto in large measure, he was substantially successful, and entitled to costs both below and on appeal.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheets, J., entered July 2, 1914, upon a trial and conviction of robbery.</p>

<p>Robbery—Evidence—Possession of Money—Admissibility—Question foe Jury. Upon a prosecution for robbery, where it appeared that five men had robbed a bank of $4,280, in gold, silver, and currency, it is admissible to show that the defendant, shortly after the robbery, deposited in a bank approximately one-fifth of the above amount in money of the character of the stolen money, as a circumstance showing that he had that amount of money shortly after the robbery, and making it a question of fact for the jury whether the same was the proceeds of the robbery, or money received by the accused in the sale of a pool room as testified by him.</p> <p>Criminal Law—Appeal — Harmless Erroe •—’Cumulative Evidence. In a prosecution for robbery, error in the admission, without identification, of a note bearing the signature of a codefendant is harmless, where it was merely cumulative of other evidence tending to show the accused’s relations with such codefendant.</p> <p>Robbery—Identity—Evidence—Admissibility. In a prosecution for the robbery of a bank, in which it was claimed that the accused was one of three unidentified men assisting two others, a handkerchief found near the scene, with cartridges of the same caliber as a gun found in the room occupied by the accused, the handkerchief bearing the same laundry mark as a collar taken from the accused, are admissible as circumstances to be considered by the jury.</p> <p>Same—Evidence—Admissibility. Upon a prosecution for the robbery of a bank, evidence that a fire broke out in a school house near the bank at about the time of the robbery, on the theory that it was started to divert attention, is admissible for the purpose of showing all the surrounding circumstances, although the accused was not connected with the setting of the fire.</p> <p>Same—Pleading and'Proof—Variance—Principal oe Accessory. Upon a prosecution for the robbery of a bank, alleged to have been in the immediate presence of certain officers, by force and means of revolvers loaded with powder and ball, it is not a variance to fail to positively identify the accused as one of the five men who committed the robbery, where the evidence tended to show that he was one of three unidentified men who participated, two of whom were stationed outside the building; it not being a variance, under an information charging the accused as a principal, to prove that he tendered assistance, though not actually present.</p> <p>Same—Principal or Accessory—Instructions. In such a case, an instruction that the jury need not find that the accused was actually in the building, but it was sufiicient if he was in the immediate vicinity, aiding and abetting, is proper.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered March 31, 1915, upon a trial and conviction of robbery.</p>

, entered February 9, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for wrongful death.

, entered October 20, 1914, upon findings in favor of the defendant, in an action for rescission, tried before the court and a referee.

<p>Appeal from a judgment of the superior court for King county, Prater, J., entered February 16, 1915, upon sustaining a demurrer to the complaint, dismissing an action to recover money wrongfully withdrawn from the funds of a corporation.</p>

, entered September 11, 1914, upon findings in favor of the defendants, in an action to reform a deed and to quiet title, tried to the court.

<p>Appeal from a judgment of the superior -court for Thurs-ton county, D. F. Wright, J., entered July 29,1915, in favor of the defendants, dismissing an action to enjoin the enforcement of an initiative measure prohibiting the manufacture, keeping, sale and disposition of intoxicating liquors, tried to the court upon the pleadings and an agreed statement of facts.</p>

<p>Appeal from an order of the superior court for King county, Mackintosh, J., entered March 1, 1915, adjudging plaintiif guilty of contempt in violating an order for the payment of alimony.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered March 19, 1915, upon findings in favor of the plaintiff, in an action for an injunction, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered October 27, 1914, in favor of the plaintiff, in an action for equitable relief, tried to the court.</p>

<p>Set-Off and Counterclaim—Contract or Tort. In an action on contract, defendant may counterclaim for the loss of an engine held by plaintiff under a lease and used and “carelessly and negligently” allowed to be destroyed, and which he thereafter agreed to pay for; since the counterclaim was for breach of contract of bailment and the allegation as to negligence did not convert the grievance into tort.</p> <p>Same. The fact that plaintiff subsequently agreed to pay for the loss does not affect the propriety of the counterclaim.</p> <p>Bailment—Bailee’s Successor—Degree of Care. Where a creditor seized the property of his insolvent debtor in such way as to be a principal, he must exercise the same degree of care towards property held by the debtor under a contract of bailment as the debtor was obligated to.</p> <p>Bailment—Care of Bailee—Presumption. On a bailee’s failure to redeliver the property, the presumption is against his carefulness.</p>

, entered September 16, 1914, upon findings in favor of the defendant, after granting a nonsuit for failure of proof, tried to the court.

, entered December 31, 1914, upon findings in favor of the defendant, in an action to set aside an attorney’s lien and for an accounting, tried to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered December 18, 1914, upon sustaining a demurrer to the complaint, dismissing an action to terminate a -trust, tried to the court.</p>

<p>Appeal from an order of the superior court for King county, Albertson, J., entered June 2, 1915, quashing an alternative writ of prohibition, upon sustaining a demurrer to the petition.</p>

, entered March 29, 1915, in favor of the plaintiff, denying recovery of a claim against an insolvent corporation in receivership proceedings, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Pacific county, Back, J., entered January 2, 1914, upon findings in favor of the plaintiff, in an action for money paid, tried to the court.</p>

, entered May 15, 1914, in favor of the plaintiff, in consolidated actions to foreclose liens upon logs, tried to the court.

, entered February 20, 1915, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to compel the issuance of a salary warrant to a county officer, tried to the court.

<p>Mandamus—When Lies—-To City Officers—Civil Service Employees—Discharge. A city employee, discharged in violation of civil service rules, is entitled to be restored to his former position by mandamus, under Rem. & Bal. Code, § 1014, authorizing the issuance of a writ of mandamus to any inferior tribunal, corporation, board or person to compel the performance of an act which the law especially enjoins as a duty resulting from office, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is excluded by such inferior tribunal, board, etc.</p> <p>Same—When Lies—Civil Service Employees—Reinstatement— Damages—Salary. Where a city employee in the garbage department was discharged in violation of civil service rules on June 5th, 1913, and kept out of employment until January 14, 1914, when he was lawfully dismissed on the ground of lack of work, mandamus was the proper remedy to reinstate him to the position for the period that he had been unlawfully deprived of his employment, and for recovery of his salary therefor as a secondary matter, under Rem. & Bal. Code, § 1024, providing that, if judgment be given in mandamus for the applicant, he may recover the damages which he has sustained, together with costs.</p> <p>Same—Recovery of Salary — Conditions Precedent — Presentation of Claim. A city employee, discharged in violation of civil service rules, is entitled to maintain mandamus proceedings to reinstate him to the position for the period that he had been unlawfully deprived of his employment, and incidentally to recover his salary for the period, without having first presented a claim to the city council for the salary due in compliance with Rem. & Bal. Code, §§ 7995-7997, relating to the filing of a claim as a condition precedent to an action for damages, which statute has no application to such a case.</p> <p>Municipal Corporations — Employees — Wrongful Discharge — Salary—Remedies. A city employee in the garbage department, discharged and kept out of the service in violation of civil service rules, is not obliged to look to the person who displaced him for his salary, but may recover the same from the city; especially where the position was not an office and his duties were performed indiscriminately by other employees.</p>

, entered October 20, 1914, upon the verdict of a jury rendered in favor of the defendants, in an action for wrongful death.

<p>Contracts—Building Contracts—Plans—-Suitability—Presumptions. Where one holding himself out as possessed of the requisite skill undertakes to furnish plans and specifications for the mechanical equipment of a hospital, the law implies that the same when done must be fit for the purpose intended.</p> <p>Same—Contract for Plans—Acceptance—“Approved”—Question for Jury. In an action to recover for furnishing plans for the mechanical equipment of a hospital, whether the indorsement of the word “approved” after the plans had been retained for a few days, would bind the parties to pay for the plans the agreed price, is a question of fact, where they were architects, possessed of no technical knowledge of what such plans should consist of, and there was testimony tending to show that the word “approved” does not mean an acceptance which would bind a party, but was no more than an identification.</p> <p>New Trial — Newly Discovered Evidence — Diligence. A new trial will not be granted for the purpose of cumulating opinion evidence upon an issue as to which both sides had offered expert testimony, even if certain experts had had no opportunity to make a necessary inspection of plans in the possession of the adversary; especially where no continuance was asked and the party had not availed himself of the remedies afforded by statute to compel an inspection of the plans.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered October 31, 1914, upon sustaining demurrers to the complaint, dismissing an action to recover money paid.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered January 11, 1915, upon findings in favor of the plaintiffs, in an action to reform a lease, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered April 29, 1915, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Application filed in the supreme court October 22, 1915, for a writ of prohibition to the superior court for Snohomish county, Alston, J., to prohibit the court from proceeding with a cause.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered November 9, 1915, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to enjoin the collection of a tax, tried to the court.</p>

<p>Contracts—Building Contracts—Plans—Action for Breach-Evidence—Sufficiency. A finding that an architects’ contract to furnish plans for a school building was breached by failure to require sufficient collar beams to support the roof, is sustained where the only requirement as to collar beams for a roof covering a structure 32x83 feet was that they be of 2x6 timber, there was a dispute as to how many this indicated, and witnesses testified that it would not be strong enough without collar beams, and the roof collapsed under a weight of snow.</p> <p>Same—Building Contracts — Plans — Performance or Breach. Under an architects’ contract to furnish plans for a building and award the contract on a percentage basis, and superintend the work and make inspections for $10 a trip, the contract for the work providing that the work be done to the satisfaction of the architects, the architects are required to make whatever inspection is necessary, and their final certificate is evidence that the work was completed to their satisfaction, rendering them liable for damages on account of a defective roof insufficiently supported for want of sufficient plans.</p> <p>Same — Building Contracts — Action for Breach — Defenses— Reliance on Plans. Where architects were employed to furnish plans for a school building and superintend the construction, and certified that the building was completed in accordance with the plans, the school directors were entitled to rely on the sufficiency of the construction, although they knew the roof was not provided with collar beams and should have known that such construction was faulty; hence their reliance thereon, even after a fall of snow caused the roof to spread, will not defeat an action for damages on account of the faulty construction by the architects.</p> <p>Same — Building Contracts — Performance or Breach — Sufficiency of Plans—Evidence. In an action against architects for damages through the faulty construction of a roof which collapsed under a weight of snow, the architects are liable where it appears that the roof was insufficient to sustain a weight estimated at nine inches on other roofs and ten inches on the ground, and a depth of thirty-six inches on the ground was not more than should have been reasonably anticipated.</p> <p>New Trial—Newly Discovered Evidence-—-Materiality. A new trial for newly discovered evidence is properly denied where the new evidence would not have authorized a recovery.</p> <p>Damages—Measure—Breach oe Contract. The measure of damages in an action against architects for the faulty construction of the roof of a schoolhouse which collapsed under a fall of snow, the school directors not knowing that the roof was improperly constructed, is the actual loss sustained by reason of the breach, and not the cost of making the building conform to the plans, nor the diminished value.</p> <p>Same—Measure—Breach of Contract—Evidence—Sufficiency. In such an action, evidence that it would cost $900 to reconstruct the second story, $300 to erect a temporary roof, and $320 to repair the damage to the lower story, sustains a judgment for $1,100, where the defendants introduced no evidence of the actual cost of the temporary roof or repairs to the first story; the court not being bound by the estimates of plaintiff’s witnesses.</p>

, entered June 20, 1914, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.

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

<p>Appeal from a judgment of the superior court for King county, Claypool, J., entered December 31, 1914, upon findings in favor of the plaintiff, in an action to determine the title to real property, tried to the court. Reversed.</p>

, entered December 31, 1914, upon findings in favor of the defendants, dismissing an action on contract, tried to the court.

<p>Mechanics’ Liens—Title ob Interest Subject—Labor Performed for Vendee—Liability of Owner—Statutes. Under Rem. & Bal. Code, §§ 1129, 1130, giving a mechanics’ lien to any person who performs labor in any mine, the owner of a mine is shown to be a principal for the purpose of liens, and its interest is subject to liens for labor performed at the instance of a lessee or vendee, where the contract granted an option to purchase, and the vendee agreed to begin mining and pay royalties until payment of the first installment of the purchase price, which it was not obligated to make for four years, the royalties not applying on the purchase price; since the owner required the vendee to make improvements and retained part of the profits, and made the vendee an agent to create a benefit to the owner’s interest.</p> <p>Same—Liability of Owners—Posting or Recording Notice. Such lien against the owner’s interest could not be defeated by posting a notice of disclaimer; nor by recording the contract giving notice that the vendee agreed to furnish a bond against liens and was an occupant under “bond and lease;” as the contract itself gave notice of the owner’s principalship.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered April 27, 1915, upon a trial and conviction of rape.</p>

<p>Officers—“Liabilities”—Criminal Prosecutions—False Audits —Statutes—Defenses—Intent. The use of the word “false” in connection with the word “fraudulent” in Rem. & Bal. Code, § 2381, making it a penal offense for a public officer to audit a claim against a county or city which is false or fraudulent, does not show a legislative intent to include only such claims as are corruptly false or acts done with willful design to cheat the public; hence it is not a defense to a prosecution under the statute that the jury found that a road supervisor had no intention to defraud, in auditing a claim for road work that he had fraudulently increased by carrying his own teams on the pay rolls in order to reimburse himself for work that he had done with his own teams in violation of law.</p> <p>Same — Liabilities—Criminal Prosecutions—Intent—Presumptions. The crime of submitting a false audit by a public officer, without intent to cheat, defined by Rem. & Bal. Code, § 2381, was not an offense at common law, and being an offense malum, prohibitum, an intent to violate the law is implied from the fact of violation.</p> <p>Same. The fact that money received by a road supervisor upon a bill falsely or fraudulently audited by him, in violation of Rem. & Bal. Code, § 2381, came out of the same fund from which a true bill, if rendered, would have been paid to him for services performed, constitutes no defense to a prosecution for a violation of the statute; in view of Id., § 3918, requiring claims against a county to be filed so that they may be allowed upon their merits.</p> <p>Criminal Law—Appeal—Harmless Error. Error in the admission of immaterial and irrelevant testimony is not ground for reversal, where, in the light of the defendant’s own evidence, it was not prejudicial.</p> <p>Criminal Law — Punishment — Discretion — Technical Guilt. Upon indictment by a grand jury, the discretion of the trial judge in passing sentence is the only protection against the inequities of valid statutes afforded to one only technically guilty.</p>

Application filed in the supreme court October 1, 1915, for a writ of mandamus to compel the superior court for Pacific county, Edward H. Wright, J., to vacate an order changing the venue of an action.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered November 21, 1914, upon the pleadings, dismissing an action for conversion, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered February 9, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered April 13, 1915, upon the pleadings, dismissing an action for damages for fraud.</p>

Appeal by plaintiff from a judgment of the superior court for Spokane county, Sullivan, J., entered March 30, 1914, upon the verdict of a jury rendered in favor of certain of the defendants, in an action in tort.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered June 30, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for libel.</p>

, entered December 12, 1913, dismissing certiorari proceedings to review an order of the commissioner of public lands for the cancellation of a deed of state oyster lands.

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

Application filed in the supreme court June 19, 1915, for a writ of mandamus to compel the secretary of state to file and print an argument upon an initiative measure.

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