Volume 89 — Washington Reports

<p>Master and Servant — Injury to Servant — Negligence — Violation op Rules — Evidence—Sufficiency. It is a question for the jury to determine whether a section foreman was guilty of negligence in entering a curved cut with a hand car at the rate of twenty miles an hour, under the company’s rule to approach with great caution, keeping a lookout for trains, and sending a man ahead if the view is not clear, where it appears that the curve was not a sharp one, and the cut was- not so deep as to obscure the view of the smoke of an approaching train, and within the curve there was a view from the center of the track for one thousand feet ahead.</p> <p>Same — Negligence—Contributory Negligence — Evidence—Sufficiency. The fact that a section man was hurt when a hand car was stopped to avoid collision with a train is not evidence of negligence on the part of the foreman in charge of the car, especially where there was evidence that he jumped off needlessly and was the only man injured; since the jury might have found that he alone was negligent.</p> <p>Appeal — Preservation of Grounds — Exceptions. Error cannot be predicated on misconduct of counsel in argument to the jury, in the absence of any exceptions thereto at the time.</p>

<p>Usury — “Agents” of Lender — Penalties—Profits of Agent — Liability — Statutes. Where plaintiff purchased and accepted a note from brokers which was made payable directly to himself, without ever having dealt with the makers, the brokers are agents of the plaintiff, either by authority or ratification, within the meaning of Rem. & Bal. Code, § 6255, making a lender liable for penalties for usurious profits of an agent, and making any intermediary the lender’s agent when he acts for both parties; and hence he is liable for the penalty of the statute where the brokers, in dealing with the makers, deducted usurious commissions.</p>

<p>Appeal — Decisions Reviewable — Orders Aepecting Substantial Rights — Finality. An order refusing to strike a complaint in intervention is not appealable as an order affecting a substantial right which either (1) in effect determines the action and prevents final judgment, or (2) discontinues the action, . . . etc., within Rem. & Bal. Code, § 1716, subd. 6; since it does not prevent final judgment or determine or discontinue the action.</p>

<p>Prostitution — Indictment—Sufficiency—Accepting Earnings of Prostitute. An information charging, in the language of the statute, the accused with wilfully and unlawfully accepting the earnings of one P. W. then and there being a common prostitute, sufficiently charges the offense of accepting the earnings of a prostitute without stating the specific earnings accepted, within the requirements of Rem. & Bal. Code, § 2055, requiring a statement of the acts constituting the offense, in ordinary concise language, so as to enable a person of common understanding to know what was intended.</p> <p>Indictment and Information — “Wilfully and Unlawfully.” A charge that an offense was committed “wilfully and unlawfully” sufficiently charges knowledge and evil intent.</p> <p>Prostitution — Evidence—Sufficiency. In a prosecution for accepting the earnings of a prostitute, evidence that the money was paid to defendant, a policeman, solely in consideration of the promise that she be permitted to frequent a certain cafe and solicit without molestation, sufficiently shows that the money was paid to aid, assist or abet the prostitution of the prosecuting witness.</p> <p>Same — Evidence—Sufficiency. Evidence that the money was given to the person designated by the defendant sufficiently shows an acceptance by him.</p> <p>Criminal Law — Evidence—Weight. Although all the state’s witnesses were from the underworld and the principal witness was a thief, their credibility was for the jury.</p> <p>Criminal Law — Evidence—Other Offenses. In a prosecution for accepting the earnings of a prostitute, in which the prosecuting witness testified that, under agreement with the accused, a policeman, she paid to a designated person five dollars a week for protection in soliciting at a certain cafe, evidence of other prostitutes as to identical arrangements with them is not inadmissible as constituting evidence of distinct offenses, since it tends to prove a consistent general system or design evidencing a criminal intent and purpose.</p> <p>Criminal Law — Appeal—Harmless Error. Error in refusing to allow a reputation witness to state what the reputation of the accused was as to being “an honest good citizen” is cured by immediately allowing the witness to state what his reputation was in the community for “good citizenship.”</p> <p>Criminal Law — Evidence—Reputation. Upon the prosecution of a policeman for accepting the earnings of a prostitute, it is not error to refuse to allow a reputation witness to state what the accused’s reputation was as to being a “faithful police officer,” as the same was not relevant to the nature of the offense charged.</p> <p>Same. In a prosecution of a police officer for accepting the earnings of a prostitute in which the veracity of the accused had not been called in question, evidence as to his reputation for truth and veracity is properly excluded.</p> <p>Witnesses — Cross-Examination—Conclusiveness—Impeachment. Where witnesses for the prosecution on cross-examination denied that they were users of cocaine or other drugs, they cannot be impeached by showing that they were, since the matter is collateral.</p> <p>Witnesses— Cross-Examination — Impeachment — Admissions— Foundation. A witness cannot be impeached by showing an admission contrary to the evidence given on cross-examination, where no foundation was laid by directing attention to the time, place, and circumstance of such admission.</p> <p>Same — Credibility — Impeachment — Expert Evidence. Where there was no evidence that witnesses were users of cocaine or other drugs, expert evidence that the use of such drugs would affect their credibility is inadmissible, even if there was a suspicion that they were such users, in the absence of evidence of the mental state or condition either at the time of the transaction or while testifying.</p> <p>Criminal Law — Trial-Comment on Evidence. It is not an unlawful comment on the evidence for the court, in excluding expert evidence, to remark that there was no evidence in the case on which to base its admission, where such was the fact.</p> <p>Criminal Law — Appeal-—Harmless Error — Instructions. In a prosecution for accepting the earnings of a prostitute, through payments deposited with the accused’s designated agent, in which the evidence showed that the accused was a principal in the matter, it is not prejudicial error that the court gave an instruction authorizing a conviction as an accessory, if it was found that he aided or abetted the agent in receiving the money.</p> <p>Witnesses — Examination—Recalling—Discretion. • It is not an abuse of discretion to refuse to recall a witness in order to ask an impeaching question as to a purely collateral matter.</p>

, entered November 7, 1914, in favor of the defendant upon stipulated facts, in an action to recover on an unpaid stock subscription.

<p>Larceny — Evidence—Sufficiency. A conviction for stealing a calf on tbe open range is sustained by 'the evidence where the defendant admitted the killing and butchering of the calf and the taking of the meat and attempted to conceal the fact, stating to the arresting officer that no one would have known about it if he had not appeared so soon, although the accused claimed that it was shot by mistake and that he intended to find and make compensation to the owner.</p> <p>Criminad Law — Venue—Evidence—Sufficiency. The venue in a prosecution for stealing a calf on the open range is sufficiently shown, although no one was asked the direct question whether the crime was committed in the county alleged, where that fact was clearly shown and there could have been no doubt in the minds of the jury.</p> <p>Larceny — Information—Variance. Upon a prosecution for stealing a calf from the open range, of unknown ownership, there is no variance as to ownership from the fact that a witness on cross-examination testified that he thought it belonged to the L.-W. Co., where he stated on redirect that he did not know who it belonged to.</p>

<p>Animals — Hiking—Injury to Horses — Damages. In an action for damages from overworking plaintiff’s borses, hired to the defendant, resulting in their disability and loss of use for a stated period of time after their return, it is error, in estimating the damages, to include Sundays, where the plaintiff testified that he did not work his horses on Sunday.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered October 24, 1914, upon findings in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

, entered October 28, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a passenger in boarding a street car.

<p>Husband and Wife — Actions Against Wife — Necessary Parties —Community Property — Lien of Judgment. A judgment against a wife, sued alone upon a community debt while she was living with her husband, is not a lien upon community real property standing in the name of the husband; in view of Rem. & Bal. Code, §§ 5917, 5918, giving the husband the management and control of the community property, and Id., § 181, providing that, when a married woman is made a party, her husband must be joined, unless the action concerns her separate property or homestead or is between herself and husband, or she is living separate and apart from her husband.</p>

, entered March 19, 1915, dismissing certain causes of action, after remand on appeal from an order granting a new trial, in an action on contract.

Appeal by plaintiffs from a judgment of the superior court for Walla Walla county, Mills, J., entered September 14, 1914, awarding damages to plaintiffs, in an action for specific performance, tried to the court.

<p>Carriers — Injuries — Setting Down Passengers — Negligence— Evidence — Sufficiency. There is no evidence of negligence to sustain recovery for injuries to a passenger in alighting from a street car, on a foggy night, where, after the destination was announced, she came to the vestibule and directed the conductor’s attention to her suitcase, and immediately stepped off the car while it was gently coming to a stop, supposing that it had stopped, there being no sudden jerk, the street surface being smooth and safe and the car stopping within ten or twelve feet; since the announcement of the destination was not an invitation to alight until the car stopped, and under the circumstances the conductor was not negligent in failing to give notice that the car was still in motion.</p>

, entered July 27, 1914, upon findings in favor of the defendants, dismissing an action to quiet title, and for an injunction, tried to the court.

, entered March 29, 1915, upon findings in favor of the defendants, in an action for damages for fraud, tried to the court.

<p>Usury — Contracts—Installment Note — Partial Payments — Interest — Computation. The loan of $3,377, upon an installment note for $5,572, to run ten years, and calling for 120 equal monthly payments of $46.43, is not usurious; since, under the rule for applying partial payments first to the interest then due, and the balance in reduction of the principal, the payments called for amount to $465.17 less than the sum loaned, with lawful twelve per cent interest thereon, computed monthly in the manner required.</p> <p>Usury — Contracts—Construction. Upon the question of usury, where a contract is susceptible of two constructions, one lawful and the other unlawful, the former will be adopted.</p>

<p>Street Railroads — Collision at Crossing — Negligence—Evidence —Sueeiciency. Recovery for personal injuries, when plaintiffs automobile was hit by a street car, is sustained, where it appears, that, when plaintiff first attempted to cross the street car tracks ahead of the approaching street car, he had ample room and time to do so before the car reached the crossing, but, as he drove on the track, he was prevented from doing so by another auto truck turning in front of him and, had the motorman been alive to the changed condition, he could have prevented the collision; there being nothing to indicate contributory negligence.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Pendergast, J., entered December 22, 1914, upon the pleadings, dismissing an action to recover the unearned portion of a license fee upon revocation of a liquor license.</p>

, entered February 25, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in cleaning an elevator shaft.

, entered December 3, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover a broker’s commission.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered January 12, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on an automobile insurance policy.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered December 24, 1914, in favor of the defendants, in an action for rescission, tried to the court.</p>

, entered March 24, 1914, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.

<p>Appeal-from a judgment of the superior court for Kittitas county, Kauffman, J., entered November 19, 1914, in favor of the defendant, in an action to enjoin the diversion of the waters of a stream, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered February 6, 1915, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>. Fraudulent Conveyances — Remedies of Creditor — Levy and Sale —Title Acquired — Cloud of Outstanding Deed — Removal. A creditor may levy execution upon real property theretofore conveyed in fraud of his rights, without having an execution returned nulla bona, but sale thereunder does not remove the cloud of the outstanding deed, which must be done by a direct attack on the deed, alleging its fraudulent character and by pleading and proving that the debtor has no other'property out of which he can satisfy the debt.</p> <p>Same — Conveyance from Husband to Wife — Presumptions — Quieting Title — Complaint—Requisites. In an action by a judgment creditor to quiet title to property purchased at execution sale, as against the wife of the judgment debtor claiming under a deed in fraud of creditors, which was a matter of record, it is not sufficient to allege that the defendants claim some interest in the property unknown to the plaintiff, on the theory that the deed from husband to wife was presumptively fraudulent; but the complaint must allege the facts as to the deed and relationship and show that plaintiff had an existing equity-at the time of the transfer and that the debtor had no other property to satisfy the debt.</p> <p>Same — Conveyance From Husband to Wife — Presumptions— Burden of Proof — Attack—Pleading. A deed from a husband to a wife carries no presumption of fraud, either as a matter of substantive law or pleading, in view of Rem. & Bal. Code, §8766, authorizing it; and to gain the advantage of Id., § 5292, placing the burden of proving the good faith of a transaction between husband and wife upon the party asserting it, one questioning a deed from husband to wife must plead facts showing that it was actually or constructively fraudulent as to creditors having an existing equity at the time of the transfer.</p> <p>Appeal — Review—Pleadings—Amendments to Conform to Proof. In a judgment creditor’s suit to quiet title to property fraudulently conveyed by the debtor to his wife, a complaint merely alleging adverse claims and stating none of the essential facts will not be deemed amended on appeal and held sufficient, under Rem. & Bal. Code, §§ 307, 1752, authorizing amendments to conform to the proof, where the essential facts were not established and did not appear from the findings, which were mere conclusions, it not appearing from the findings or judgment that the plaintiff had an existing equity at the time of the transfer; as in such case there are no facts, and there is no room for the application of the statute relating to amendments.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered February 17, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained while cranking an automobile.</p>

<p>Acknowledgmeno^-Certificate — Impeachment—Proof—Evidence —Sufficiency. To impeach the certificate of acknowledgment of a mortgage, fair on its face, the evidence must be clear and convincing; and the burden is not sustained by the unsupported evidence of the mortgagors, two illiterate colored people, to the effect that they did not agree or intend to give a mortgage and signed the papers supposing them to be notes, and did not acknowledge them, where their testimony is denied by all who were present and challenged by all the concomitant facts and circumstances.</p> <p>Mortgages — Presumption • — • Deficiency Judgment — Liability of Grantee — Deeds-—Covenants. A deed of mortgaged premises, made subject to liens generally, and subject to a particular mortgage which was described and which the grantee assumed to pay, does not render the grantee liable to a deficiency judgment upon another and prior mortgage, as a vendee is liable on such a covenant only where it is clear that he intended to pay a lien or indebtedness.</p> <p>Appeal — Abandonment—Second Notice. Upon giving notice of abandonment of an appeal, a second appeal may be taken within the time limited, and it is immaterial that the first notice and bond was not withdrawn from the files.</p> <p>Appeal — Record—Conclusiveness. A formal order reciting the date of overruling a motion for a new trial should be corrected below and not questioned for the first time in the briefs.</p> <p>Appeal — Time por Taking — Entry op Judgment. Tbe time for taking an appeal runs from the date of entering final judgment and not upon an oral announcement or the filing of a memorandum opinion.</p> <p>Appeal — Review—Findings. When clear, cogent and convincing evidence is necessary to overcome a presumption, findings upon conflicting evidence will be reversed if the evidence supported by the presumption preponderates against the findings.</p>

<p>Evidence — Parol Evidence — To Vary Writing. Where a shipping order constituted a complete contract for the sale of four million brick at $17.25 per thousand, it is inadmissible to show by parol that it was not a complete contract but only an order for shipping brick of a different grade, previously contracted for at $13.75 by a written contract therefor which had been lost.</p> <p>Sales — Written Warranty — Breach—Parol Evidence — Admissibility. In an action to recover the price of “highway paving brick” sold under a written contract at $17.25 per thousand, the defendant may show by parol, as a partial defense, that the brick furnished was of inferior grade of less value, known as No. 2, and quoted in plaintiff’s price list at $13.75 per thousand.</p> <p>Sales — Warranty — Breach — Waiver — Damages for Inferior Quality. Where brick was sold as “highway paving brick” there was an express warranty that the brick to be delivered would be highway paving brick, and the fact that the vendee accepted brick of inferior grade and less value without objection or offering to return them does not waive the warranty, or prevent him from offsetting his damages, in an action to recover the purchase price.</p>

<p>Municipal Corporations — Streets — Contract for Easement — “Grading and Opening.” A contract for an easement for a street in consideration of the city’s agreeing to refund any grade tax paid by the abutting owner for “opening, grading or improving any part of a street, excepting sidewalks,” contemplates more than a mere original opening for travel, which accordingly did not discharge the obligation of the city; but entitles the owner to reimbursement for assessments subsequently made for the establishment of a permanent grade, such as embankments, cuts and fills.</p> <p>Same — “Improvements”—“Paving.” Such a contract does not contemplate refunds for paving as an “improvement,” where there was but little paving in the city at the time the contract was made; since “improvement” is a relative term, to be construed in conjunction with “opening” and “paving,” and as incidental thereto.</p> <p>Same — Powers—Acquisition of Land — Payment—Refunds—Exemption from Assessments — Estoppel. Under Rem. & Bal. Code, § 7507, subd. 6, authorizing a city of the first class to purchase private property for public purposes, a city that did not at the time have the right of eminent domain may purchase an easement for a highway in consideration of agreeing to reimburse the owner by the repayment of any assessments against abutting property for opening, grading or improving the street; and after receiving the benefits, the city is estopped to question the legality of the mode of payment.</p> <p>Same — Acquisition of Land — Payment—-Refunds of Assessment —Contractors—Covenants—Rights of Successors. Such a contract inures to the benefit of the grantor’s successors, especially where the grantor covenanted that it would build all structures on its land (an island) of fireproof materials and expressly extended the covenant to its assigns, in return for which the city covenanted to build approaches to the island, making the latter covenant of special benefit to the grantor and its assigns.</p>

, entered August 3, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.

<p>Wills — Signatube—Fobgebx—Evidence—Suebtciency. Findings that the signature to the alleged will of an illiterate man was a forgery are sustained, where the experts were of that opinion, and an admitted signature, superimposed upon the challenged signature, was exactly similar, showing that the latter was undoubtedly a tracing from the genuine.</p> <p>Appeal — Review—Findings. Findings on conflicting evidence will not be disturbed when not against the preponderance of the evidence.</p>

, entered March 29, 1915, upon findings in favor of the petitioner, in an action to subject property to administration as part of a community estate, tried to the court.

, entered November 11, 1915, upon findings in favor of certain defendants, in quo warranto proceedings, after a hearing before the court.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered November 12, 1914, in favor of the defendant, dismissing an action for equitable relief, tried to the court.</p>

<p>Municipal Corporations — Public Improvements — Assessments— Reassessments — Authority—Statutes. Where confirmation of a sewer assessment was denied on appeal and the assessment set aside for failure to comply with 3 Rem. & Bal. Code, §§ 7892-10, 7892-15, 7892-16, in various particulars, the court may order the city council to levy a reassessment, notwithstanding some of the errors made were jurisdictional, under 3 Id., § 7892-42, providing that the city council shall make a reassessment whenever the original has for any cause been set aside, annulled or declared void by any court, either directly or by virtue of any decision of such court.</p> <p>Same — Public Improvements — Cost oe Work — Extras—Settlement. The invalidity of a sewer assessment cannot be urged on the ground of excessiveness, arising through a settlement with the contractor allowing more than the contract price on the unit basis agreed upon, where the excess came through necessary changes entitling the contractor to extra compensation under the contract.</p> <p>Same — Settlement—Conclusiveness. A settlement allowing a contractor for sewer construction extra compensation on account of changes in the work, pursuant to the terms of the contract, is conclusive upon property owners assessed for the costs, in the absence of allegation or proof of fraud or collusion.</p> <p>Same — Public Improvements — Assessment Districts — Enlargement — Statutes. If a sewer assessment district does not include all the property susceptible of sewerage or drainage through the contemplated sewer, as required by 3 Rem. & Bal. Code, § 7897-15, the city could, by proper proceedings, enlarge the district by including the omitted property; and especially so, after a reassessment had been ordered under 3 Id., §§ 7892-42, 7892-43, requiring the reassessment to be made upon' all property specially benefited, whether or not included in the original assessment district; provided the assessment does not exceed the actual cost and expense of the improvement.</p> <p>Same — Public Improvements — Assessments—Ordinances. Under 3 Rem. & Bal. Code, § 7892-43 providing that a city shall proceed to make a reassessment by “passing an ordinance ordering the same,” a reassessment authorized by resolution only is invalid.</p> <p>Same — Assessments—Districts—Apportionment—Validity. An assessment for a trunk sewer must have the boundaries of the district prescribed by ordinance, and the levy upon property between the termini of the improvement back to the middle of the block must be limited to the reasonable cost of a local sewer and its appurtenances, the remainder of the cost to he distributed over all the property in the district in accordance with special benefits in proportion to area, as expressly required by 3 Rem. & Bal. Code, §§ 7892-15 and 7892-16.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered November 10, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered October 20, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by a street car.

<p>Municipal Corporations — Local Improvements — Delinquent Assessments — Summary Foreclosure — Deed—Redemption — Notice to “Owner.” -There must he strict compliance with Rem. & Bal. Code,' § 7808, providing, upon the summary sale of premises for delinquent local improvement assessments, that the notice o'f application for a deed be served personally upon the “owner,” which means the real owner of the property, unless something has been done to work an estoppel; hence notice by publication, to the holder of the record title under an absolute deed intended as a mortgage is not sufficient to cut off the owner’s right of redemption, where she had been in possession for more than ten years, was the record owner when the assessments were levied, her name appeared on the assessment rolls, and she lived in the immediate vicinity and could have been found if diligence had been used.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered February 27, 1915, upon the verdict of a jury rendered in favor of the defendants, in an action for a broker’s commission.</p>

, entered December 5, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained in a fall from a sidewalk.

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

<p>Receiving Stolen Goods — Information—Sufficiency—“Larceny” —Statutes. Under Rem. & Bal. Code, § 2601, defining larceny where any person, “with intent to deprive or defraud the owner thereof,” shall (1) take and drive away the property of another; or (2) shall obtain property by the aid of checks or drafts unlawfully drawn; or (3) withhold or appropriate property held in his possession as bailee, agent, etc.; or (4) withhold or appropriate property received by reason of a mistake; and (5) knowing the same to be “so appropriated” shall receive any property wrongfully appropriated, the words “so appropriated” applies to the original larceny of property specified in each and all of the preceding four sub-divisions.</p> <p>Same — Information—Sufficiency. In an information for receiving stolen property, it is not necessary to allege the facts going to constitute the original unlawful taking as would be required in a prosecution therefor.</p> <p>Criminal Law — Trial-—Challenge to Sufficiency of Evidence— Specific Objections — Necessity. A general motion to take the case from the consideration of the jury only raises the question as to whether there is any evidence tending to prove the crime charged and is insufficient to support the specific objection that the evidence was insufficient to show the accused’s connection with the crime, where there was ample evidence to show that the offense had been committed.</p>

<p>Trial — Misconduct of Counsel — Showing Indemnity Insurance. In a personal injury case, inquiry of a juror as to whether he had business dealings with any of the defendants, revealing that he was in the liability insurance business and that defendants might be insured, is not misconduct of counsel in placing such fact before the jury, where the information came about naturally in response to lawful inquiry.</p> <p>Trial — Misconduct of Counsel — Improper Objections. An objection to the participation of counsel for a defendant that had been dismissed out of the case is not misconduct of counsel upon which error can be predicated, where it came about through a confusion of ideas and the parties came to a common understanding and “consented” that a judgment of nonsuit be entered.</p> <p>Dismissal and Nonsuit — Joint Tort Feasor — Right of Codefendant. Consent to the dismissal of one or more joint tort feasors is equivalent to a voluntary nonsuit, which cannot be objected to by co-defendants.</p> <p>Appeal — Review—Harmless Error — Instructions. Error cannot be predicated upon the giving of an instruction affecting only the liability of a joint tort feasor dismissed out of the case by consent of the plaintiff.</p> <p>Trial — Instructions — Prejudice — Comment on . Facts. An instruction that there was no evidence to warrant a finding of fault in the construction of a manhole, is not prejudicial to defendants who were found to have negligently maintained the same; nor would it be an unlawful comment on the facts.</p> <p>Negligence — Presumptions — Circumstantial Evidence. While negligence is never presumed, it may be established by circumstantial evidence; hence an instruction thereon may be warranted, although no witness testified directly as to the fact.</p> <p>Trial — Instructions—As a Whole. Instructions must be construed as a whole, and not isolated for the purpose of criticism.</p> <p>Damages — Personal Injuries — Earning Capacity- — Instructions. In an action for personal injuries, an instruction authorizing recovery for “depreciation in earning capacity, if any” where plaintiff returned to work at the same wages, is not necessarily prejudicial, where the element of lessened earning capacity was not the only question in the case, the jury was not left to speculation, and there was fact to rest the verdict upon.</p> <p>Damages — Personal Injuries — Excessive Vekdict. A verdict for personal injuries, causing constant pain and weakness to a man sixty years of age, which may he permanent, will not he held excessive when not so large as to reflect passion or prejudice on the part of the jury.</p> <p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered February 11, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by falling on a manhole. Affirmed.</p>

<p>Mortgages — Assumption of Mortgage — Deed to Agent — Effect— Merged by Deed. Where mortgaged premises were traded by the mortgagors to one who assumed payment of the mortgage, and deeded to a bank as an agent, the bank is not liable on the assumption of the mortgage from the fact that the deed was taken in its name, where it did not agree to assume the mortgage; since such a promise is not merged in the deed, but is independent of it.</p> <p>Trial — Opening Case — New Issues — Cross-Complaint—Diligence, —Discretion of Court — Judgment—Res Judicata. It is not an abuse of discretion in a mortgage foreclosure suit, for the trial court, after trial and announcement of the judgment, to refuse leave to a defendant to file a cross-complaint against a codefendant for the purpose of establishing a liability for the amount of a deficiency judgment upon an alleged assumption of the mortgage; since there was lack of diligence, and the foreclosure decree does not prejudice the right to establish the liability in an independent action.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered November 10, 1914, upon sustaining a demurrer to the complaint, dismissing an action for damages.</p>

<p>Appeal from a judgment of the superior court for Whitman county, Mills, J., entered November 16, 1914, in favor of the defendants, dismissing an action for rescission, tried to the court.</p>

<p>Contracts — Performance or Breach — Furnishing Plans — Question fob Jury. A contract for installing an irrigating pumping plant providing that the defendant should huild the foundations after plans furnished by the defendant, requires intelligible and workable plans, and it is error for the court to decide, as a matter of law, that plaintiff was excused from strict performance by defendant’s failure to build the foundations, where there was evidence that the only plan furnished was a mere pencil drawing or sketch not drawn to scale, and from which the defendant, though a carpenter and bridge builder of experience, could not complete the foundation without additional information.</p> <p>Contracts — Substantial Performance — Recovery — Reduction. In an action for the contract price of installing an irrigating pumping plant, full performance of which was alleged to have been prevented by defendant’s failure to build the foundations, it is error to allow recovery for the entire amount of the contract; since, where deviations are made from full performance, not wilfully or in bad faith, the recovery is reduced by the damages caused by such deviations, which is usually the expense of completing the contract.</p> <p>Same — Substantial Performance — Question for Jury. In such a case, it is error to take the case from the jury, where there was a conflict in the evidence as to whether plaintiff’s failure to complete the installation was wilful or in bad faith, and as to whether the defendant was at fault in failing to build the foundation.</p> <p>Contracts — Performance or Breach — Delivery — Evidence— Question for Jury. In an action to recover for installing an irrigation pumping plant on defendant’s ranch, which provided for delivery of the machinery “on your ground,” whether there was a substantial delivery is a question for the jury, where heavy machinery, the frame alone weighing 2,785 pounds, was landed from a boat on a gravel bar, near defendant’s ranch, the well where it was to be installed being two hundred and fifty or three hundred feet distant up a very* steep and rocky bank, and defendant could not move the machinery up to the well without risk of injuring it, and also without being considered as having accepted such delivery.</p> <p>Same — Substantial Performance — Waiver-—Question for Jury. In such a case, it is also a question for the jury whether defendant waived strict performance of the contract, where the machinery was never moved from the bar by either party, and there was testimony to the effect that defendant at numerous times requested to know when plaintiff would complete its installation, and did not consider that the machinery had been delivered to him according to the terms of the contract.</p> <p>Contracts — Performance or Breach — Reasonable Time — Parol Evidence — Admissibility—Question fob Jury. Where a written contract for the installation of an irrigating pumping plant specified no time for completing the work, the law implies that it shall be within a reasonable time; and while testimony that a particular time was orally agreed upon so as to permit irrigating that season is inadmissible as varying the terms of the writing, the question as to what would be a reasonable time under all the circumstances and within the contemplation of the parties is one for the jury, upon competent evidence.</p>

, entered November £7, 1914, upon findings in favor of the defendants, denying a deficiency judgment upon the foreclosure of a chattel mortgage, tried to the court.

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered November 17, 1914, 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 Walla Walla county, Mills, J., entered March 23, 1915, upon findings in favor of the defendants, dismissing an action in tort, tried to the court.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Smith, J., entered March 26, 1915, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal — Review—Harmless Error — Instructions. Error cannot be predicated upon the giving of an instruction upon the measure of damages when it could not have misled the jury when taken in connection with other instructions, some of them given at the request of the appellant.</p> <p>Nuisances — Permanent Nuisance — Definition — Lawful Business — Nuisance Per Se — Instructions—Damages. An instruction correctly defining what would amount to a permanent nuisance to adjoining property through the operation of a lawful business upon defendant’s property, and permitting recovery therefor as a matter of law, is not necessarily erroneous in inappropriately defining the same as a nuisance per se when a lawful nuisance is never a nuisance per se; since the operation of a lawful business may become a nuisance in fact, the determination of which is a question of fact, and the defendant could not operate its business in the manner so properly defined in the instruction without compensating the adjoining owner for the damages actually suffered.</p> <p>Same — Measure of Damages. In such a case, when the injury and damage are established, the measure thereof should be that most beneficial to the injured party entitled to enjoy his property intact.</p> <p>Same — Permanent Nuisance — Private Injury — Relief—Damages —Right to Permanent Damages. An adjoining landowner may sue once for all to recover temporary damages for past injuries to his crops and fruit trees, and for permanent damages to his freehold, suffered through the lawful operation of defendant’s cement plant, which threw off fumes and gases and cast particles upon plaintiffs’ premises, upon the theory that the same was a permanent nuisance even if it were not a nuisance per se, where the defendant intended to maintain the same and could not avoid the injury; since plaintiff in such case has recourse to relief in damages as less onerous and harsh than equitable relief by injunction.</p> <p>•Same — Permanent Damages — Scope of Relief — Judgment—Bar. In such a case, the framing of plaintiffs’ action precludes any further legal or equitable relief for any injury or damage in the future to respondents’ real estate and the enjoyment thereof, by the lawful operation of defendant’s plant.</p> <p>Same — Permanent Damages — Defenses—Intent to Discontinue. In such a case, defendant cannot assert that the injury is not a permanent one for the reason that the same might be discontinued, where all of the evidence tended to show that the business was more or less permanent and that a substantial plant had been erected with a large amount of materials at hand; since an intention to discontinue and its temporary character could have been the subject of proof.</p> <p>Same — Permanent Damages — Action to Recover — Issues and Trial. Where, in such a case, on objection to testimony, counsel for plaintiff stated the theory of the action, and that recovery of permanent damages would include any future damages, whereupon defendant withdrew the objection, in order to avoid permanent damages it was incumbent upon the defendant to show that the nuisance would be discontinued; and the plaintiff was estopped to claim any other or additional relief in any other form of action.</p>

<p>Assignments — Equitable Assignments — Set-Off and Counterclaim — Assigned Claims. Where plaintiff undertook to complete a defaulted contract for a public improvement, and to pay all claims against the defaulting contractor, the city, upon paying such claims, becomes the owner thereof by equitable assignment, subject to all defenses, and may offset the payments against plaintiff’s action for-the balance due on the contract, where they were shown to be valid claims and plaintiff was not deprived of any defenses that might be made against them.</p>

<p>Appeal —■ Review — Findings. Findings upon sharply conflicting evidence will not be disturbed on appeal, where it cannot be said that they are not supported by the evidence.</p> <p>Collision — Injury to Vessel — Negligence—Failure to Observe Lights — Liability. Where two steamers, the A. and the V. were approaching on opposite courses port to port, so that a third steamer, the C., following astern of the V. with the V. on her starboard bow, must have had an unobstructed view of the A., it was negligence, as a matter of law, for the C. to fail to observe the lights of the A.; and in case the collision was due to such negligence, it would be immaterial which vessel had the right of way.</p> <p>Same — Negligence—Failure to Observe Lights — Findings and Evidence. In such a case, a finding of fact to the effect that the C. was first made aware of the proximity of the A., when the A. and V. had exchanged signals to port helms and the V. had swung to starboard, is not necessarily a finding that the A. was not in plain view of the C. prior to that time, so as to escape the imputation of negligence in failing to observe A.’s lights.</p> <p>Same — Loss of Freight — Value—Evidence—Shipping Invoice— Admissibility. Upon an issue as to the value of freight lost in a collision of steamers, duplicate invoices furnished by shippers to adjusters of the cargo are competent evidence of value, in the absence of evidence that the shippers’ claims were fraudulent or in excess of the actual value of the goods lost and the amounts paid on that account.</p> <p>Same — Loss of Freight — Reimbursement—Interest. In an action for damages from a collision, an award to reimburse the plaintiff for money paid out to shippers for freight lost should draw interest only from the time of the payments.</p>

<p>Application filed in the supreme court April 5, 1915, for a writ of certiorari to review an order of the superior court for King county, Vivian M. Carkeek, judge pro tempore, denying a motion to strike a lien for attorney’s fees.</p>

<p>Principal and Agent — Evidence—Declaration oe Agent — Admissibility. While the fact of agency cannot be proved by the acts and declarations of the alleged agent, the same are admissible, if there is independent evidence of the agency, to show whether an alleged contract was in fact made by the agent, holding himself out as such.</p> <p>Appeal — Review—Harmless Error. Error in refusing to permit a witness to state who was the owner of stock purchased is not prejudicial where he detailed the circumstances from which the jury could draw the conclusion as to ownership.</p> <p>Principal and Agent — Powers of Agent — Power of Attorney. The authority of an agent holding a general power of attorney which was recorded, cannot be limited, as to persons dealing with him without notice, by showing that the property dealt with was after-acquired property, that the agent had been instructed not to acquire it, or to show the circumstances under which the power was executed, as strangers had a right to rely on it.</p> <p>Trial — Instructions—Misleading Instructions. An instruction to the jury to the effect that if, under the evidence and these instructions, your verdict is for the plaintiff, your verdict will be for the amounts prayed for in the two causes of action, etc., specifying the amount of each, and if in favor of the defendant, it will be simply for the defendant, is not misleading in that it prevented separate findings on each cause of action, where the issues had been clearly stated.</p> <p>Appeal — Review—Verdict. A verdict upon conflicting evidence, supported by substantial evidence, is conclusive on appeal.</p>

<p>Appeal — Record—Abstract. Motions to strike the abstract of record and briefs and to dismiss for failure to refer to the pages of the statement will be overruled where the statement comprises but thirty-seven pages, and because of its brevity an abstract was not necessary and no prejudice resulted.</p> <p>Appeal — Right to Appeal — Estoppel—Correction of Judgment. The fact that appellant obtained a correction of the judgment in one particular which was admittedly wrong and the fault of the respondent, does not work an estoppel to appeal from the corrected judgment.</p> <p>Trial — Objections—Waiver. Where, to show title, the records of the county auditor’s office were offered in evidence showing a deed, and the same was read into the record, without objection other than objection to any description of additional property' not in controversy, and appellant waived cross-examination, he thereby waived strict documentary evidence as shown by the deed record.</p> <p>Taxation — Certificate of Delinquency — -Foreclosure—Notice— Name of Owner — Statutes. Under Rem. & Bal. Code, § 9254, providing for notice of the foreclosure of a certificate of delinquency to the “owner of the property described in the certificate” and Id., § 9257, providing that the name of the person appearing on the tax rolls as the owner shall he considered as the owner of the property, upon the foreclosure of a certificate for the year 1908, when R. appeared on the assessment roll as the owner, he is the only person that need he named in the notice for publication, although the certificate of delinquency did not issue until one year thereafter, at which time M. appeared on the rolls as the owner, the unpaid taxes for 1909 and subsequent years having been paid.</p> <p>Same — Fobeclosube — Summons by Publication — Pboof—Sufficiency. Proof of publication of the summons in a tax foreclosure made by the “cashier” of a newspaper is insufficient to confer jurisdiction to enter judgment, in view of Rem. & Bal. Code, § 237, subd. 3, requiring such proof to be made by the affidavit of the “printer, publisher, foreman, principal clerk or business manager of the newspaper.”</p> <p>Taxation — Fobeclosube—Judsment — Recitals as to Sebvice — Conclusiveness. A recital in a tax foreclosure judgment of due service of summons is not conclusive and it will not be presumed that due service was made, where the record shows affirmatively that it was based upon a service by publication which was not proven in the manner required by law.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered March 13, 1915, upon a trial and conviction of giving whiskey to a minor.</p>

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered February 15, 1915, in favor of the plaintiff, vacating an assessment roll and enjoining a public improvement, in compliance with a remittitur of the supreme court.</p>

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered December 8, 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 November 7, 1914, dismissing an action on contract, upon sustaining a demurrer to the</p> <p>complaint.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Holcomb, J., entered January 5, 1915, in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Parties — Plaintiffs —■ Trustee of Express Trust — Quieting Title. A trustee of an express trust may maintain an action to quiet 'title in Ms own name without joining the cestui que trust.</p> <p>Quieting Title — Parties—Trustee of Express Trust — Identity of Cestue Que Trust. In an action to quiet title, brought by a trustee of an express trust against parties claiming through his grantor, the identity of the cestuis que trustent is immaterial, as long as the grantor was not the beneficiary of the trust.</p> <p>Courts — Probate Courts — Jurisdiction—Estate Held in Trust— Conveyances. The probate court has jurisdiction to authorize the administratrix to convey property held in trust by the decedent, title to which was disclaimed by the estate.</p> <p>Corporations — Contracts—Representation—Conveyance to Officers — Title. Where an insolvent railroad company conveyed tide lands, held under contract of purchase from the state, to its trustees, under an agreement that they should pay the installments falling due, which the company could not pay, and should hold the land, unless the company repurchased the same within three years, which it failed to do, the title vested in the trustees, as against one succeeding to all the other interests of the company with full notice of the prior conveyance.</p> <p>Chadwick, J., dissents.</p>

Cross-appeals from a judgment of the superior court for King county, Prater, J., entered February 6, 1915, in favor of the petitioner, in proceedings in probate for the confirmation of a contract made with the executor of a will.

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered February 27, 1915, upon sustaining a demurrer to the complaint, dismissing an action on contract.</p>

Appeal 'from an order of the superior court for Pierce county, Clifford, J., entered January 28, 1915, upon findings in favor of a creditor of an estate, after a hearing upon objections to the final report of the administratrix.

<p>Frauds, Statute oe — Agreement as to Real Estate — Special Partnership — Trusts. A special partnership in real property, which need not be in writing, is created, where it was orally agreed that the defendant should purchase certain property and put up the cost of platting it, and that the plaintiffs should forego their commissions, have the same surveyed and sell it, the profits to be equally divided; hence the same is not within the statute of frauds, and the principle of trust, express or resulting, is not applicable.</p> <p>Partnership — In Real Estate — Profits—Instructions. In such a case, it is proper to instruct that, if such an agreement was entered into and the defendant paid the purchase price and expenses and agreed that the profits should be equally divided, the plaintiffs were entitled to one-half the profits, and it was not necessary to instruct as to the existence of the partnership, that being a question for the court upon the admitted facts.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Pendergast, J., entered December 28, 1914, sustaining an objection to thé admission of evidence, dismissing an action on contract.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Pendergast, J., entered November 11,1913, upon findings in favor of the defendants, in an action in tort.</p>

<p>Witnesses — Privilege — Accused as Witness — Cross-Examination. Where the accused takes the stand in his own defense, he is subject to all the rules of law relating to the cross-examination of other witnesses.</p> <p>Criminal Law — Trial—Witnesses — Credibility — Question for Jury. The credibility and mentality of the prosecuting witness, who positively identified the accused, is a question for the jury, notwithstanding that he was a moral pervert and associated with disreputable persons, where those matters were fully gone into at the trial.</p> <p>New Trial — Newly Discovered Evidence. A new trial for newly discovered evidence is properly denied where it merely related to the credibility of the prosecuting witness, which had been fully gone into at the trial, and was simply cumulative upon that point.</p>

<p>Appeal from a judgment of the superior court for Adams county, Mills, J., entered November 30, 1914, in favor of the plaintiff, in an action to foreclose a chattel mortgage, tried to the court.</p>

, entered January 19, 1915, upon findings in favor of the plaintiff, in an action for an injunction, tried to the court.

<p>Waters and Water Courses — Damages—Obstructions—Evidence —Sufficiency. A recovery for obstructing a stream and overflowing plaintiffs’ lands is not sustained by tbe burden of proof, and should be set aside, where tbe plaintiffs’ evidence of an alleged dam caused by defendant’s accumulation of debris is very vague, no witnesses actually saw tbe dam during tbe overflow at high water, tbe debris collected after tbe water went down was not tbe result of defendant’s operations, and defendant’s evidence was to tbe effect that no debris was placed in tbe water by defendant, or collected to cause tbe overflow, but that tbe overflow was tbe natural result of floods.</p>

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered November 30, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through an obstruction in a street.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered December 16, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages to property destroyed by fire.</p>

<p>Homicide — Malice— “Premeditated Design” — Evidence — Sufficiency — Burden of Proof. A conviction of second degree murder is sufficiently supported by evidence of malice or “premeditated design to effect the death,” within Rem. & Bal. Code, § 2392, where defendant started an affray by rushing up to the deceased and others and charged someone with cutting his hog, and on this being denied, with lying, and after being struck by the deceased, drew or produced a revolver which he might have had concealed in his hand, and shot the deceased while deceased was retreating after being reguested by deceased and another not to shoot, and shot again and killed the deceased while others were trying to disarm him; especially in view of the rule that, the killing being admitted, the burden of justifying the act or reducing the crime to manslaughter is upon the accused.</p> <p>Criminal Law — Appeal—Review—Instructions—Requests-—-Necessity — Homicide. Upon a prosecution for homicide, an instruction admittedly correct as far as it goes upon the subject of the deceased’s first attack and retreat, cannot be complained of as failing to state all that accused was entitled to on the subject of self-defense and defendant’s knowledge of the retreat, where no reguest was made for any instruction of that nature.</p> <p>Homicide — Self-Defense — Provoking Assault — Failure to Desist. One who starts a fatal affray by conduct provoking an assault, and was struck, is not justified in shooting his assailant in self-defense, after his assailant had retreated and he was reguested not to shoot, and where he afterwards fired again and killed the deceased while being disarmed by others; as it was his duty to retreat or at least desist.</p>

<p>Corporations- — Stock—Sale—Warranty— Evidence — Sueeiciency. A warranty that stock sold was of the value of $235 a share is sufficiently sustained by evidence of the purchaser that defendant specifically “guaranteed” its value to him at that sum at their first interview, and at the second interview, when others were present, he consented to guarantee the stock “as he had promised;” although such other witnesses all testified only to a general warranty at the second interview; since their evidence did not contradict the plaintiff.</p>

<p>Contracts — Building Contracts — Claim for Extras — Construction of Contract — Decision of Architect — Conclusiveness—Reasonable Difference of Opinions. Where the contract for a building made the architect the arbiter or umpire for the purpose of deciding questions that might arise on the contract, his decision that a third elevator was called for by the contract and was not an extra, in case the owner exercised the option of adding four stories to the six stories started, is not fraudulent or arbitrary, but is binding on the parties, where building experts disagreed as to the proper construction of the contract in that respect, and taking the contract and plans and specifications as they were, the minds of men may honestly and reasonably differ as to whether the third elevator was required for the ten-story building or was to be considered as an extra.</p>

<p>False Pretenses — Elements of Offense — Misrepresenting Existing Fact. To constitute grand larceny committed by color or aid of any fraudulent or false representation, under Rem. & Bal. Code, § 2601, tbe representation must be of an existing or past fact.</p> <p>Same — False Representations — Existing Facts — Evidence—Sufficiency. A charge of grand larceny by inducing tbe prosecuting witnesses to invest in a corporation to be organized to do a grocery business, by falsely representing that defendant “bad $4,000 in cash at tbe time” received from tbe sale of two stores in tbe city of S. wbicb be would invest in tbe business, is not sustained where tbe proof merely went to show that defendant did not put more than $225 worth of groceries into tbe business.</p>

<p>Appeal from a judgment of the superior court for Whitman county, McCroskey, J., entered June 13, 1914, upon the verdict of a jury rendered in favor of the defendant, in an action for damages from the regrade of a street.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered July 20, 1915, upon findings in favor of the defendant, in an action for damages, tried to the court.</p>

, entered June 10, 1915, upon sustaining a demurrer to the informations, dismissing consolidated actions for the violations of laws relating to the taking of fish.

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered August 17, 1913, upon a trial and conviction of violating the laws relating to the taking of fish.</p>

, entered April 13, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through an obstruction in a street.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered May 11, 1914, in favor of the defendant, dismissing an action for injunctive relief, tried to the court.</p>

<p>CONSTITUTIONAL LAW — DUE PEOCESS OF LAW — LlENS—ON CHATTELS —Fobeclosuee. Rem. & Bal. Code, §§ 1105-1107, providing that chattel liens, under § 1157, shall be foreclosed as in the case of chattel mortgages by placing in the hands of the sheriff a notice, to be personally served as in the case of a summons (which may be by publication in case the defendant cannot be found within the state, of which the sheriff’s return that he cannot be found in the county shall be prima facie evidence), which notice shall be authority for taking immediate possession of the property, provides for due process of law, in that it provides for notice and opportunity to be heard through the property owner’s right to remove a cause to the superior court and contest the foreclosure; although it allows foreclosure of a lien against a resident of the state without personal notice.</p> <p>Liens — Chattle Liens — Fobeclosuee-—Notice—Necessity—Due Process of Law. Under Rem. & Bal. Code, §§ 1105-1107, requiring notice of a chattel foreclosure to be personally served as in the case of a summons, and if the mortgagor cannot be found in the county, then by publication as in the case of a sale on execution, a foreclosure is void, as being without due process of law, where the sheriff’s return showed no certificate either of service of the notice on the mortgagor or that he could not be found in the county.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered October 29, 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, Kennan, J., entered December 7, 1914, upon discharging the jury at the close of the evidence, dismissing an action in tort.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Jackson, J., entered October 14, 1914, upon default of the defendant, in an action to foreclose labor liens.</p>

, entered March 29, 1915, upon findings in favor of the plaintiff, in an action for damages for stock killed by a railway train.

, entered March 31, 1915, upon granting a nonsuit, dismissing an action for wrongful death, tried to the court and a jury.

, entered February 5, 1913, in favor of the plaintiff, in an action to enjoin a foreclosure sale and to quiet title, tried to the court.

<p>Abatement and Revival — Principal and Surety — Supersedeas Bond — Death op Surety. The liability of a surety upon a supersedeas bond is continued after bis death, by Rem. & Bal. Code, §§ 193, 236, 967, providing that in certain cases where actions shall be prosecuted against the party if living, the same may be prosecuted against his representatives, which statute abrogates the common law rule that the death of a surety jointly liable with the principal ends the obligation as to both past and future defaults.</p> <p>Principal and Surety — Discharqe op Surety — Death—Appeal— Supersedeas Bond. The death of a surety upon a supersedeas bond does not revoke the contract of suretyship as to costs subsequently arising; since the obligation was one that the surety could not withdraw from upon notice.</p> <p>Same — Remedies op Creditor — Death op Surety — Exhaustion op Principal Liability — Appeal—Supersedeas Bond. Since a surety upon a supersedeas bond is liable upon the bond in the first instance as a principal obligor, the representatives of a deceased surety cannot demand that the obligee first exhaust his remedies against the principal debtor and a living co-surety.</p> <p>Appeal and Error — Supersedeas Bond — Summary Judgment— Death op Surety. The death of a surety upon a supersedeas bond, upon which the surety was liable as a principal debtor, does not affect the right of the obligee to the summary judgment authorized by Rem. & Bal. Code, § 1739, upon affirmance, against both the appellant and his sureties or representatives, for the amount of the judgment.</p> <p>Election op Remedies — Supersedeas Bond — -Abatement and Revival — Another Action Pending. The presentation of a contingent claim, pending appeal, against the estate of a surety upon a supersedeas bond on appeal and the commencement of an action thereon, does not constitute an election of remedies which would prevent entry of summary judgment on the bond by the supreme court on affirmance of the judgment; since the supreme court first acquired jurisdiction by the appeal, and another action pending is not a good plea in bar of the primary action.</p>

<p>Vendor and Purchaser — Rescission bt Vendee — Fraud—Evidence —Sueeiciency. It is error to deny a rescission of a contract for the exchange of properties, sought by plaintiff upon the ground of misrepresentations as to the character and value of land in Montana, which was subject to claims exceeding its value and therefore worthless, and for which plaintiff gave up property of very considerable value, where it appears that he relied upon false representations that the Montana land was high grade agricultural land with fine soil, capable of producing any kind of grain and particularly adapted to the growth of vegetables for which purposes it was desired, when in fact it was worthless for growing cereals or vegetables of any kind; the contract having been made in this state, several hundred miles from the land, which plaintiff had never seen, although he had been warned by an attorney to first investigate it.</p>

<p>Fraud — Purchase of Stock — Deceit as to Buyer. In an action for fraud in tbe sale of corporate stock, concealment of tbe fact that the stock was bought for the account of an undisclosed buyer is immaterial, where that fact made no difference to the sellers, who were concerned only in getting a satisfactory price.</p> <p>Same — Purchase of Stock — Deceit as to Receivership. Fraud in the purchase of corporate stock cannot be predicated upon the representations that, unless the stock was sold to defendant, the company would be put in the hands of a receiver, where it appears that the company was insolvent or about to become so, and subject to a receivership unless the stock was secured by those who could lend it a new credit.</p> <p>Corporations — Sale of Stock — To Officer — Fraud—Duty of Purchaser — Disclosure of Market. Upon the purchase of corporate stock by another stockholder who was an officer in the company, the latter is not bound to disclose his market or reveal a contract that was the result of a personal venture, if the sale was not for the benefit of the corporation.</p> <p>Same — Purchase of Stock — Fraud—Evidence—Sufficiency. In such a case, damages for the misrepresentations cannot be claimed by sellers of the stock who had opportunity to investigate the books of the company and received their own price, which was about its actual value and in advance of the market price, if it had a market value, and the parties dealt at arm’s length.</p>

, entered May 18, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon an employer’s liability policy.

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered February 11, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action of replevin.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered June 5, 1915, upon a trial and conviction of'-grand larceny.-</p>

<p>Appeal — Time op Taking — Before or After Judgment. Where a notice of appeal, served after signing but before entry of the judgment, was not filed until after the entry, the appeal was not “taken” until after judgment.</p> <p>Specific Performance — Sale op Stock — Remedy in Damages. Specific performance of a written contract to buy stock and deliver a note in payment will not be granted in the absence of circumstances making a note indispensable; since the action is one for damages, and it is immaterial that the stock was that of a close corporation and of no value if left in the seller’s hands.</p> <p>Fraud — Representations—Opinions. Fraud as a defense to an action for breach of contract to buy stock is not established by evidence of representations which amount to mere opinions, and which the witness was not sure had ever been uttered.</p> <p>Parker, J., dissents.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered May 4, 1915, in favor of the defendants, dismissing an action for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered January 6, 1915, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Mechanics’ Liens — Claim—Excessiveness—Bad Faith. A mechanics’ lien must be made in good faith, and is violated by wilful excess, where it appears that the claimant included a $300 indemnity deposit not subject to lien and other foreign items, making it twice the amount that he could honestly have thought himself entitled to, and filed the same after an award of arbitrators against him, which he had invoked but refused to adopt.</p>

<p>Husband and Wife — Touts of Wife — Liability of Community. Neither the husband nor the community is liable for the tortious act of the wife in taking and damaging an automobile, in view of Rem. & Bal. Code, § 5929, providing that, for all injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be responsible except where he would be jointly responsible with her if the marriage did hot exist.</p> <p>Same. In such a case, it is immaterial that the injured party might waive the tort and sue as upon implied contract, where the wife’s act was a tort to begin with.</p> <p>Same — Torts of Wife — Actions—Pleading—Waiver, In an action for the wife’s tort in taking and damaging an automobile, the allegation that the taking was for the “benefit of the marital community,” is insufficient, as against demurrer, to plead the defendant’s acquiescence or authorization, or to overcome the presumption that it was not for the benefit of the community, no sustaining facts being pleaded.</p>

<p>Electricity — Power Companies — Public Service Corporation— Private Business. Companies furnishing electrical energy may or may not be public service corporations, since a sale of surplus power for private purposes is not an engaging in a public business.</p> <p>Same — Power Companies — Private Business — Sale oe Surplus Power — Right to Regulate. 'The contracts of a public traction company by which it sells to private individuals its surplus electrical power pertain to its private business in which the state can claim no concern, and disclosures as to such contracts are not essential to an intelligent exercise of the state’s function to regulate the company’s traction business.</p> <p>Constitutional Law — Police Power — Legislative Questions. It is the province of the. legislature to define the objects of the police power, and for the courts to determine whether the act is reasonably within the legislative power and the thing sought to be done fairly within the act.</p> <p>Electricity — Power Companies — Private Business — Power to Regulate — Police Power. The courts will not declare the right of the state, under the police power, to regulate and control the price to be- charged for electrical power sold to private individuals, in the absence of express legislative authority therefor.</p> <p>Same — Power Company — Regulation — Rates — Private Business — Power oe Commission — Statutes. The public service commission is given no power to inquire into the private contracts of a public traction company whereby it sells its surplus electrical power to private individuals, by 3 Rem. & Bal. Code, § 8626-1, declaring all companies selling electricity for light, heat or power for hire, to be public service companies, subject to regulation by the public under the jurisdiction of the public service commission; since the entire context of the act, providing for equality of service, physical valuation of property “used for the public convenience in the state,” and that the commission shall ascertain the probable earning capacity of each such company “under the rates now charged,” relates only to such uses as the public might compel, and the act nowhere seeks to regulate or control the price to be charged to private individuals in the incidental private business of selling surplus energy; there being no clear intent to disclose or bring such private business within the police power.</p> <p>Same. In such case, the “rates” falling within the scope of the act, must mean a charge to the public for a service open to all upon the same terms, and not a consideration of a private contract in which the public has no interest.</p>

, entered December 21, 1914, upon findings in favor of the plaintiff, in an action for wrongful death, tried to the court.

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

<p>Witnesses — Transaction With Person Since Deceased — Corporation as Party — Deceased Officer. Rem. & Bal. Code, § 1211, excluding the evidence of a party in interest or to the record in his own behalf as to any transaction had by him with a person since deceased, where the adverse party sues or defends as legal representative of such deceased person, does not exclude evidence of transactions had with a stockholder and officer, since deceased, of a corporation which was the adverse party.</p> <p>Same — Deposition Taken Before Death. A deposition as to transactions with an adverse party who died after the deposition was taken but before the trial, is not inadmissible as evidence of a transaction had with a party since deceased, within Rem. & Bal. Code, § 1211; since the evidence was competent at the time the witness testified.</p> <p>Deposits — Special Deposits — Title. Where defendant, in an action to foreclose logger’s liens, procured the release of the logs pending the trial by inducing a bank to make a deposit of a check with the clerk of court pursuant to Rem. & Bal. Code, § 1173, upon the representation that it had a good defense to the action and would return the check to the bank unless it was necessary for the payment of the lien judgments, the deposit was a special one, and not a loan, and did not vest the defendant with any title to the money upon its obtaining judgment defeating the liens.</p> <p>Garnishment — Money Subject — Special Deposit. A special deposit, made by a bank to enable defendant in a lien foreclosure to procure a release of the logs, is not subject to garnishment by judgment creditors of the defendant, after dismissal of the foreclosure suit, where the defendant had no title to the money. '</p>

, entered .December 5, 1914, granting plaintiffs a new trial, after the verdict of a jury rendered in favor of the plaintiffs, in an action for malpractice.

, entered October 7, 1914, upon findings in favor of the defendant, in an action upon a promissory note, tried to the court.

, entered November 17, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death-

<p>Appeal from a judgment of the superior court for Chehalis county, Claypool, J., entered November 14, 1914, upon the verdict of a jury rendered in favor of the plaintiff for $4,000, in an action for malpractice.</p>

<p>Physicians and Surgeons — Practicing Without Certificate — Information. Under Rem. & Bal. Code, § 8386, making it unlawful to treat the sick without having a certificate authorizing the practice of (1) medicine, (2) osteopathy, or (3) any other system of treating the sick, an information charging the practicing of medicine and the treatment of the sick by the chiropractic method without having a certificate in any form, alleges facts sufficient to constitute the statutory offense, without stating which one of the three certificates provided for by law the accused should have had.</p> <p>Same. An information under said section charging the unlawful practice in K. county, without alleging the residence of the accused, is sufficient, even though the statute authorizes the holder of a certificate to record it in the county of his residence and thereupon practice in any other county of the state; since practice in K. county without any certificate constitutes the offense.</p> <p>Same — Practice Without Authority — Information—Duplicity— Sufficiency. Although Rem. & Bal. Code, § 8395, makes it an offense to practice medicine without having a certificate recorded in the county in which he is practicing, which must be recorded anew upon any change of residence, and § 8400 making it an offense to practice without having a certificate, an information is not duplicitous in that it charges the offense of practicing without having the certificate recorded and also the offense of practicing without having a certificate, where it does not state sufficient facts to charge a complete offense of practicing without recording the certificate in the county of his residence; since its allegations in that respect, being insufficient to sustain a conviction, may be rejected as surplusage.</p>

<p>Adjoining Landowners — Negligence — Collecting Debris and Water Against Brick Wall — Liability. The builder of a structure adjoining plaintiff’s building, who allowed mortar and debris to choke a long and narrow space between the buildings on plaintiff’s land, is liable for the damages resulting when the normal rainfall in the winter season saturated the debris until the collected water oozed through plaintiff’s brick wall and injured the wainscoting inside.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered January 22, 1915, in favor of the defendant, in an action on contract, tried* to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered January 23, 1915, upon granting a nonsuit, dismissing an action for personal injuries.</p>

<p>Appeal — Statement oe Facts — Time oe Filing — Extension—Excusable Failure. An extension of time for the filing of a statement of facts will be granted by the supreme court, under Laws 1915, p. 303, § 8, authorizing such extension where the failure to file in time is “found excusable,” where it appears that negotiations for a settlement were conducted in good faith for two months, the appellant had no notice of the filing of findings for one month, and took an appeal when the negotiations failed, when the time for filing a statement had expired.</p> <p>Same — Costs. Upon granting an extension of time for filing a statement of facts, after excusable failure to file in time, under Laws 1915, p. 303, § 8, the supreme court will impose terms, requiring in this case, the payment of $100 and the costs of the application.</p>

, entered September 14, 1914, modifying a judgment and verdict rendered in condemnation proceedings, after a hearing before the court.

<p>Cabbiebs — Cabbiage of Live Stock — Notice oe Claim. Presentation of a claim for injuries to stock, called for in the contract of carriage, is not a condition precedent to action, where, upon complaint of injury en route, the railroad company caused the stock to be unloaded and examined by veterinary surgeons to determine the extent of the injury; since the company received the protection accorded by the stipulation in the contract of carriage that all claims for loss or damage are waived unless presented within ten days from the date of unloading of the stock at destination and before mingling with other stock, and therefore cannot complain of want of notice.</p> <p>Same — Cabbiage op Live Stock — Limited Liability — Appobtionment. Under a limited liability live stock contract of carriage, agreeing that the value of the live stock transported shall not exceed $30 per head, and in no event shall the carrier’s liability exceed $1,000, injury to any animal may be recovered to the extent of $30, whether entirely destroyed or not, and the carrier is not entitled to have the damages reduced to a proportionate part of the agreed value of $30 per head.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Pendergast, J., entered March 15, 1912, in favor of the plaintiff, in an action to quiet title, tried to the court.</p>