Volume 90 — Washington Reports

, entered March 30, 1915, 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 delivering wood.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered February 25, 1915, dismissing a petition in probate to establish a right to share in an estate as daughter of the deceased, after a hearing on the merits and an advisory verdict by a jury.</p>

, entered January 23, 1915, upon findings in favor of the plaintiff, in an action upon an injunction bond, tried to the court.

<p>Appeal from an order of the superior court for Chelan county, Pendergast, J:, entered September 16, 1914, upon sustaining a demurrer to the information, dismissing a prosecution for violation of an ordinance.</p>

<p>Principal and Agent — Contracts of Agent — Employment of Factor — Ratification—Evidence—Sufficiency. There was not only a contract by the sales agent of the defendant, a paint company, making plaintiff its agent for the sale of paint on commission, but a ratification of the sales agent’s agreement by acceptance of the proceeds thereunder, where the preponderance of the evidence was to the effect that the sales agent took up the matter in response to direct communications between the plaintiff and defendant, entered into the contract, assisted plaintiff in making certain sales agreed to be applied under the contract, and figured plaintiff’s commissions on such sales, orders for which were filled directly by the defendant at the consumer’s price, while plaintiff’s order was filled at such price less the agreed upon commissions, and it appeared that defendant collected the full price for such sales, and in a letter in regard to the same stated to plaintiff that any credits “due for commissions are not payable to you until we have been paid by the people to whom we made direct shipment.”</p>

<p>Municipal Corporations — Streets—Negligent Use — Collision— Contributory Negligence — Instructions. An instruction as to plaintiff’s contributory negligence, when his buggy was hit by defendant’s automobile, is not erroneous as indicating that, to bar a recovery, it must have been the sole cause of the accident, where the jury were told that there could be no recovery if plaintiff failed to exercise reasonable care and his negligence contributed to the producing of the collision in an appreciable degree and was the efficient and proximate cause of it; it appearing that “efficient” was used synonymously with “proximate” and was intended only as stating the necessity of a causal connection between contributory negligence and the injury.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $480 for personal injuries and damage to a buggy and harness is not excessive where plaintiff was unable to work for six weeks and sustained contusions and bruises causing considerable pain and suffering.</p>

, entered November 16, 1914, in favor of the defendant, dismissing an action on a policy of fire insurance, tried to the court.

, entered August 5, 1915, in favor of the defendants, upon an agreed statement of facts, in an action to enjoin the collection of a tax.

, entered July 9, 1915, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained by an employee in switching cars.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered April 9, 1915, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

<p>Warehousemen — Receipts—“Negotiable” Form. Warehousemen being permitted by 3 Rem. & Bal. Code, § 3369-1 to make receipts either negotiable or nonnegotiable, a receipt not in the form prescribed, but stamped “negotiable” and so issued, is properly deemed negotiable.</p> <p>Same — Lien eor Other Goods — Negotiable Receipts — Surcharge. Under 3 Rem. & Bal. Code, § 3369-30, providing that, if a warehouse-' man issues a negotiable receipt, the goods shall not be subject to liens except for subsequent storage charges of those goods, unless the receipt expressly, enumerates other charges for which a lien is claimed, such a receipt cannot subsequently be surcharged with liens for other goods not mentioned, upon making a partial withdrawal, by virtue of Id., § 3369-28, providing for such a lien for charges oh other goods belonging to the same depositor “wherever deposited,” since the later section is expressly made “subject to the provisions of § 3369-30.”</p> <p>Same — Negotiable Receipts — Lien on Other Goods — Surcharge on Partial Withdrawal. On the partial withdrawal of goods from a warehouse, held on a negotiable receipt, which, under 3 Rem. & Bal. Code, § 3369-30, cannot be surcharged for other liens not expressly enumerated in the receipt, the warehouseman cannot, against the consent of the holder, alter the old receipt by indorsing thereon a claim of lien for storage of other goods not originally enumerated; and Id., § 3369-12, making a warehouseman liable to transferees of a negotiable receipt upon partial withdrawal of the goods, if they fail to take up or cancel the receipt or indorse a statement of the withdrawals, does not authorize the warehouse to force an exchange of receipts against the consent of the holder or surcharge a negotiable receipt with other liens.</p> <p>Same — Negotiable Receipts — Lien on Other Goods — Surcharging as Between Parties. Rem. & Bal. Code, § 3369-30, providing that, where a warehouseman issues a negotiable receipt, the goods shall not be subject to liens except for subsequent storage charges of those goods, unless the receipt expressly enumerates other charges for which a lien is claimed, was not intended simply for the protection of transferees and third parties, but forbids belated surcharging of a negotiable receipt as between the original parties to the receipt; the policy of the law being to make negotiable receipts useful in the highest degree and the warehousemen being fully protected by liens on the stored goods (Mount, J., dissenting).</p> <p>Pleading — Amendment—Trial Amendments — Counterclaim. In an action by a depositor of goods against a warehouseman for conversion in refusing to deliver until a wrongfully surcharged lien on other goods was paid, in which the defendant interposed no counterclaim or set-off, it is error, after close of the case, to allow the defendant to amend by claiming equitable relief by way of foreclosure of his lien on the other goods and sale of the goods in suit thereunder.</p>

<p>Appeal from an order of the superior court for Pierce county, Clifford, J., entered November 12, 1914, upon findings in favor of the plaintiff, denying a petition to vacate a decree of divorce for fraud, tried to the court.</p>

<p>Divorce — Decree—Custody oe Child — -Enforcement Pending Appeal. Where, hy a decree of divorce, the custody of a child had been awarded to two different persons for alternate periods of six months, so that no question of the welfare of the child could be involved, the supreme court will not, hy mandamus, compel the lower court to enforce its order, pending appeal, which it had declined to do on the ground of want of jurisdiction; since the supreme court, if it has jurisdiction, may treat the refusal of the lower court as a determination that the welfare of the child is not jeopardized by its remaining where it is.</p> <p>Same — Suit Money Pending Appeal — Jurisdiction. The superior court retains jurisdiction, after judgment in divorce actions, for the purpose of allowing suit money and attorney’s fees pending appeal to the supreme court, and the supreme court will not entertain applications therefor.</p> <p>Same. The superior court does not lose jurisdiction to allow suit money and attorney’s fees pending an appeal from a judgment of divorce by reason of the fact that the decree disposes of the property rights of the parties.</p>

<p>Libel and Slander — Libel Per Se — Charge of Crime — “Bribery” —Sufficiency. A newspaper article headed “Bribery” and charging that one K. was offered a bribe in an appointment to a political job, that the offer was made at a certain office to which K. had been invited by plaintiff and that plaintiff was “one of the men present,” the article inviting a prosecution for bribery by the prosecuting attorney, is not libelous per se as charging a crime and does not charge plaintiff with committing bribery.</p> <p>Same — Libel Per Se — Public Hatred and Contempt. Neither is such charge libelous per se as holding the plaintiff up to public hatred, contempt or ridicule, where, read twice, it merely leaves the impression, that information could be obtained from plaintiff upon which to found a prosecution for bribery.</p> <p>Same — Pleading—Complaint—Sufficiency—Special Damages. A complaint for libel by an article not libelous per se, in which no special damages are alleged, is demurrable.</p> <p>Main, Mount, and Chadwick, JJ., dissent.</p>

<p>Principal and Surety — Action on Bond — Judgment—On Stipulation — Primary Liability eor Liens — Rights op Surety' — Postponement op Liability. In an action upon a subcontractors’ bond, where it appeared that the subcontractors and their surety were primarily liable in any event to discharge certain lien claimants whom the subcontractors had failed to pay, and the parties stipulated for present judgment for the amount of the established liens, pending the litigation of collateral issues between the contractor and subcontractors, the surety cannot, after entry of such judgment pursuant to stipulation, complain that the collateral issues between the contractor and subcontractors have not yet been determined or the ultimate liability of its principal fixed, or seek any postponement of its liability on the stipulated judgment until that event has transpired; since the surety’s liability for the amount of the liens attached immediately upon breach of the bond, and equity will not permit postponement of the payment of the liens pending the trial of collateral issues, and, furthermore, the surety has its remedy over against the subcontractors given by statute and may avail itself of the benefit of any judgment finally entered.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered April 17, 1915, in favor of the plaintiff, in an action to foreclose a mechanics’ lien, tried to the court.</p>

<p>Indemnity — Contract—Construction. Where the purchaser of stock in a corporation gave his note for the price at par, and later made an arrangement whereby the payee agreed to take back the stock and satisfy the note when the stock was sold, evidenced by a receipt of the shares of stock “for sale at par,” and agreeing to pay the maker any interest he might pay on the note, and reciting “Maturity note sale stock,” the agreement was one in effect guaranteeing to pay both principal and interest of the note upon sale of the stock; and upon such sale, the payee was liable for the payment of the note to an indorsee for value, and for cancellation of the note.</p> <p>Judgment — Res Judicata — Matters Concluded — Identity oe Parties and Issues. Where defendant, the payee of a note, taken in payment for corporate stock, agreed to take the stock back, and guaranteed, upon sale of the stock, to pay the note, which he had indorsed for value, and thereafter, the indorsee of the note recovered judgment thereon against plaintiff, the maker’s executrix, in an action in which defendant was not a party, the judgment therein is not res judicata or a bar to plaintiff’s action against defendant on his guarantee of the note, although the plaintiff (defendant in the former action) sought therein to make the payee a party thereto and set up the whole transaction, charging fraud in the indorsement of tlie note, where the court in the former action made no finding on the question of fraud and refused to make defendant a party thereto, but simply found that the plaintiff in the former action was an indorsee for value and the owner and holder of the note; since the issue as to defendant’s guarantee was not proper to be tried in a cause wherein defendant was not a party, and the same was not adjudicated in the former action on the note.</p>

, entered September 30, 1915, upon sustaining a demurrer to the information, dismissing a prosecution for a violation of the commission merchants’ law.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered October 1, 1914, in favor of the plaintiff, in an action by a guardian to compel the production and cancellation of a will of an insane person, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered May 8, 1915, upon separate verdicts of a jury rendered in favor of the plaintiffs for $1,250, in consolidated actions for malicious prosecution. Reversed, unless $500 is remitted from each verdict.</p>

, entered October 17, 1914, upon the verdict of a jury rendered in favor of the defendant, in an action for a broker’s commission.

<p>Appeal from a judgment of the superior court for What-com county, Pemberton, J., entered September 25, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Evidence — Declarations by Third Person — Admissions Against Interest. In an action on a promise to pay the debt of plaintiff’s brother, pursuant to a tri-party agreement under which plaintiff shipped certain goods to defendant, extra judicial statements of the brother to the effect that no such agreement was made are admissible as declarations against interest by one having a common interest with plaintiff, since the brother would have benefited by defendant’s performance.</p> <p>Contracts — Actions—Evidence—Admissibility. In such a case evidence that, after the defendant had received and sold the goods, which belonged to the brother, he paid a creditor of the brother, pursuant to an agreement under which the goods were shipped to him, is admissible as tending to prove that the contract claimed by the plaintiff was never made.</p> <p>Frauds, Statute op — Promise to Pay Debt op Another — Original Promise. An oral agreement between plaintiff, his brother, and defendant whereby plaintiff agreed to ship to defendant certain goods belonging to the brother in consideration of defendant’s agreeing to pay the brother’s debt to plaintiff, is an original promise based upon a sufficient consideration, and hence not within the statute of frauds relating to a promise to pay the debt of another.</p>

<p>Attorney and Client — Compensation—Performance of Contract —Evidence—Sufficiency. The dismissal of an action to recover an attorney’s fee of'25 per cent of the amount recovered by any suit or compromise of the client’s claims is unwarranted, where the evidence is undisputed that the attorney, after having commenced an action which was abandoned, joined in another action respecting a mortgage and an accounting due from his client, and by joining in opposing the adverse interests, accomplished the same result as by a direct suit, recovering $5,644.45 in cash and a third interest in certain lands; and it is immaterial that such cash was all consumed in paying an indebtedness of the client which was an entirely independent transaction.</p> <p>Mortgages — Foreclosure—Title Acquired After Satisfaction. Where the actual interest of a mortgagee was fully satisfied after foreclosure, he could obtain no title by the foreclosure sale, and could convey none by assignment of the sheriff’s certificate of sale.</p> <p>Vendor and Purchaser — Bona Fide Purchaser — Equitable Title. The doctrine protecting tona fide purchasers of land without notice applies solely to purchasers of the legal title, and the purchaser of an equitable interest, especially at judicial sale, acquires the property burdened with every prior equity charged upon it.</p> <p>Husband and Wipe — Community Property — Contracts by Husband — Employment op Attorney — Acquiescence by Wipe. The husband’s contract employing an attorney on behalf of the marital community to establish a trust in community lands and recover a share in a joint venture relating to the same cannot be avoided by the wife, as not authorized by her, where she was a party to all the suits brought relating to the matter, was represented by the attorney therein, showed considerable interest and concern in the litigation, and was consulted in regard to it, and the litigation was brought for the benefit of the community and resulted in benefit to it.</p>

<p>Appeal from a judgment of the superior court for King county, Back, J., entered April 2, 1915, upon findings in favor of the plaintiffs, in an action for damages to property.</p>

<p>Work and Labor — Implied Contract — Support of Parent. A son cannot recover of his father for the hoard and keep of his mother, as upon an implied contract, where it appears that, to benefit her health, he took her from a sanitarium and brought her to his home on the coast without the knowledge of his father, no justification therefor and no breach of legal duty by the father being shown; since the presumption is that a parent is domiciled with a child by invitation, such suits are not favored, and the son was a volunteer and trespasser and cannot claim compensation for his wrong.</p>

<p>Appeal — Record—Statement op Facts — Necessity. In the absence of a statement of facts, errors cannot he assigned upon the giving of instructions that relate to the proofs and failure of proofs, or in denying a motion for a new trial and entering judgment involving consideration of the facts.</p>

, entered May 18, 1915, upon findings in favor of the plaintiffs, in an action to determine conflicting claims to a deposit in court, tried to the court.

<p>Colleges and Universities — Tuition at State University— Statutes — Constitutionality. Laws 1915, p. 239, providing an entrance and tuition fees to be charged to students of the university of Washington is a valid exercise of legislative authority; as it is not forbidden by Const., art. 26, § 4, requiring the establishment of systems of public schools free from sectarian control and “open to all children of the state”; art. 9, § 1, requiring ample provision for the education of all resident children, without distinction or preference; or art. 9, § 2, providing for a general and uniform system of public schools, to include common schools and such high schools, normal schools and technical schools as may hereafter be established.</p> <p>Constitutional Law — Class Legislation — Privileges and Immunities — Colleges and Universities. Laws 1915, p. 239, providing an entrance and tuition fees for students at the state university does not grant to any citizen or class privileges or immunities which upon the same terms shall not equally belong to all citizens, in violation of Const., art. 12, § 1, by reason of the fact that students in the state college of Washington are not charged entrance or tuition fees.</p> <p>Constitutional Law — Statutes—Constitutionality -— Presumptions. The presumption is in favor of the constitutionality of acts of the legislature, and they will not be declared void unless there is no reasonable doubt about their invalidity.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered May 28, 1915, upon findings in favor of the plaintiff, in an action on a bill of exchange.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered January 20, 1915, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Criminal Law- — Trial ■ — ■ Misconduct of Attorney ■ — - Cure by Instructions. In a prosecution for the forgery of a check connected with pay rolls said to be in the possession of the defendant ancl which were not produced, the declaration- of the prosecuting attorney in argument to the jury that the pay rolls would have “convicted the accused absolutely,” while improper, is not so prejudicial that it was not cured by an immediate instruction to the jury to disregard the remarks and warning the prosecutor to keep within the record.</p>

, entered November 3, 1915, in favor of the defendants, dismissing an action to recover money paid and to secure the reduction of a tax, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Brawley, J., entered May 18, 1915, upon findings-in favor of the defendants, in an action to quiet title, tried to the court.</p>

<p>Municipal Corporations — Special Assessments — Reassessment • — Statutes—Retroactive Effect. Laws 1915, p. 526, amending 3 Rem. & Bal. Code, § 7892-12, so as to limit assessments for local improvements in certain cities in case the estimated costs of the improvement exceeds fifty per cent of the assessed valuation of the property, has no retroactive effect and does not apply to a reassessment made after the passage of the act, where the improvement was initiated, the contract let, the work completed, the original assessment levied, and the special benefit conferred prior to the passage of the act.</p> <p>Judgment — Res Judicata — Matters Concluded. A judgment setting aside a local improvement assessment as made upon a fundamentally wrong basis, and as in excess of the benefits derived and in excess of the assessed valuation, is not res judicata and conclusive that the assessed valuation was the limit of the special benefits, although in a memorandum opinion the court expressed the opinion that the assessment was void because it exceeded the assessed valuation.</p> <p>Municipal Corporations — Special Assessments — Benefits— Limit — Valuation for Taxation. The fact that the entire assessment for a local improvement exceeded the valuation of all the property in the district for general taxation does not tend to show that the assessments exceed the special benefits conferred on the entire district or the property assessed; there being no relation between the benefits and general taxation valuations.</p> <p>Judgment — Matters Concluded — Assessments — Vacation — Reassessments. Any provision in a judgment vacating an assessment attempting to fix a limit to the power to reassess specific tracts, other than the natural limit of cost apportioned to the benefits, is beyond any legal issue and not binding on the supreme court on appeal.</p> <p>Same — Matters Concluded — Special Benefits — Reassessments. A judgment vacating an assessment for a local improvement upon a finding that specific tracts were assessed in excess of the benefits conferred, is res judicata and binding upon the city and a bar to a reassessment of the same tracts for the same improvement in the same or greater amounts.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered February 1, 1915, in favor of the plaintiff, in garnishment proceedings, tried to the court.</p>

<p>Railroads — Construction—Liens — Bond of Contractor — Statutes — Title and Subjects. Under Rem. & Bal. Code, § 1129, providing for liens for labor and supplies furnished in the construction of certain structures, including a railroad, with a proviso that the railroad campany shall give a bond for the protection of laborers and materialmen, “which bond shall be filed ... in the office of the county auditor” and that if the company fails to take such bond it shall be liable to persons furnishing labor and materials, the bond is made security for what the prior portion of the section made lienable and relieves the railway property from the lien; and no other construction would be constitutional, since the title of the act refers only to the enforcement of liens.</p> <p>Same — Bond of Contractor — Actions by Creditors — Notice of Lien. An independent action on such bond as a statutory bond cannot be maintained except in the manner authorized- by- the statute for the enforcement of the lien, notice of which must be given by the filing of a lien notice as required by § 1134.</p> <p>Same — Bond by Contractor — Creditors—Common Law Action. There being no privity, creditors who failed to give notice of lien cannot maintain a common law action upon a bond given by a railroad company under Rem. & Bal. Code, § 1129, in lieu of the statutory lien for labor and supplies furnished in the construction of the road; the object of the bond under the statute being more to relieve the railroad property of the lien than for the protection of creditors of the company.</p>

, entered March 24, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a railway employee.

<p>Cross-appeals from a judgment of the superior court for King county, Dykeman, J., entered April 15, 1915, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Paupers — Care and Support — Medical Attendance — Liability of County. A county is not liable to a physician for treating persons who are not accepted paupers, without any order from any one in authority, as plainly required by Rem. & Bal. Code, § 8377".</p>

<p>Paupers — Care and Maintenance — Powers op Commissioners— Poor Farms. The county commissioners are, by necessary implication, authorized to purchase a county poor farm for paupers, by Rem. & Bal. Code, § 8374, vesting the commissioners with entire and exclusive superintendence of the poor; Id., § 8377, providing that they may enter into contracts for the maintenance or appoint agents to oversee and provide for paupers; and Id., § 8384, authorizing them to provide workhouses for their accommodation and employment.</p> <p>Same. Such power is conferred by necessary implication by Id., § 3822, authorizing a county to purchase such lands as may be necessary to its corporate or administrative powers, and Id., § 3824, pro- • viding that the powers of the county can be exercised only by the county commissioners; the power to care for paupers being a corporate and administrative power.</p>

<p>Judgment — Default—Vacation—Discretion. The denial of a motion to vacate a judgment of default is not an abuse of discretion, where the action was commenced November 19, 1912, judgment was entered April 26, 1913, motion to vacate was not made until December 15, 1913, and the allegation that default was entered without notice while negotiations for settlement were pending was denied by counter affidavits.</p>

V. Alexander, Esq., judge pro tempore, entered February 37, 1915, dismissing mandamus proceedings, after a trial to the court on the merits.

<p>Homestead — Selection — Right to Declabe — Community Pbopeety — Conveyances. A husband may, after the death of his wife, declare a homestead in community property and sell and convey it by his own deed in full fee simple title.</p>

, entered April 27, 1915, upon findings in favor of the defendant, in an action upon a promissory note, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 8, 1915, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Criminal Law — Appeal—Review—Verdict. A conviction of driving an automobile while intoxicated cannot be set aside as based only on conclusions of the witnesses as to the accused’s condition, where the evidence contra was equally in the nature of opinions and there was a conflict in the evidence.</p> <p>Criminal Law — New Trial — Newly Discovered Evidence. Upon a conviction of driving an automobile while intoxicated, newly discovered evidence that, observed shortly before the accident, “he gave no indications of being intoxicated,” is merely cumulative, and not ground for a new trial.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered March 20, 1915, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

Cross-appeals from a judgment of the superior court for Pierce county, Clifford, J., entered August 5, 1915, upon findings in favor of the petitioner, adjudging a right of inheritance in the community estate of a deceased person.

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered April 12,. 1915, upon findings in favor of the plaintiff, in an action to foreclose tax certificates.</p>

<p>Appeal from an order of the superior court for Snohomish county, Alston, J., entered February 3, 1915, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action to recover personal property.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered May 8, 1915, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal by plaintiffs from a judgment of the superior court for Snohomish county, Alston, J., entered March 9, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.</p>

, entered April 20, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Application filed in the supreme court January 18, 1916, for a writ of prohibition to prevent the superior court for King county, Smith, J., from modifying a judgment and sentence; and a counter motion for leave to apply below for the modification.</p>

<p>Appeal from a judgment of the superior court for Ska-mania county, Darch, J., entered August 15, 1914, upon findings in favor of the defendants, in an action in equity, tried to the court.</p>

<p>Mortgages — Absolute Deed as Mortgage — -Evidence—Sufficiency. An absolute deed of a half interest in real estate from M. to C. who were equal partners in the property, for an express consideration of $26,200, is shown to have been intended as a mortgage for advances made by C. to M., where it appears that, two years later, the parties had a settlement, and C. agreed to convey to M. a half interest in the property upon payment of $17,200, with interest, the contract providing that meanwhile they should be tenants in common and that upon the death of either the survivor should have the right to purchase the half interest belonging to the estate at the appraised value, it further appearing that one purpose of the original deed was to permit C. to borrow money on the property and to prevent M. from incumbering it.</p> <p>Tenancy in Common — Lease to Cotenant — Liability for Rent— Title — Merger. Where a tenant in common, holding the full legal title, made a lease and afterwards purchased the lease on his own account and thereafter held exclusive possession under the lease, accounting for the stipulated rents during his lifetime, the lease was not merged, and his estate, holding over, is properly charged with the rents stipulated in the lease.</p>

<p>Municipal Corporations — Improvements — Assessments — Benefits — Review by Courts. The confirmation of an assessment by eminent domain commissioners will not be disturbed on appeal for mere difference of opinion as to the amount of the benefits conferred, nor unless the record discloses that the commissioners acted arbitrarily or upon a fundamentally wrong basis.</p> <p>Same — Assessments—Benefits—Evidence. The fact that an improvement extending a street changes a lot from a lot in the center of a two-block area to a corner lot suggests a sufficient reason for assessing benefits at $312.50, while an opposite corner lot not so changed was assessed at only $103.</p> <p>Same — Assessments—Benefits—Use of Property. The fact that property assessed for benefits was used as church property is not material in determining the question of benefits conferred by the improvement.</p> <p>Holcomb, Chadwick, and Fullerton, JJ., dissent.</p>

, entered September 12, 1914, upon findings in favor of the plaintiff, in an action to recover upon a foreign judgment, tried to the court.

<p>Appeal — Record—Exceptions to Instructions. Timely exceptions to instructions, allowed by the court, certified by the clerk as part of the transcript, need not be embodied in the statement of facts.</p> <p>Sales — Sale of Machinery — Implied Warranty — Sale by Sample. Upon the purchase of a specified kind of impeller for use on a second-hand pump, upon the statement of plaintiff, a dealer, that he could not repair the old impeller and that defendant ought to buy a new one, there is no implied warranty that the new impeller will make the old pump work satisfactorily; as the sale was by sample, with implied warranty only that it was of the kind ordered.</p> <p>Same — Sale of Machinery — Action for Price — Offsets. In such a case, where no defects in the impeller were shown and the buyer did not offer to return it when it failed to work satisfactorily, and made no objection to bills rendered, he cannot, in an action for the price, offset expenses on other parts of the pump in attempting to make it work or for loss of profits on a contract while attempting to use it.</p>

<p>Trial — Instructions—Accepted Pacts. It is error to refuse a requested instruction that the jury accept specified material facts which were not disputed.</p> <p>Eminent Domain — Damages—Private Property op Boom Company — Instructions. In an action to condemn certain property of a boom company which the supreme court on a former appeal had decided to he its private property and not devoted to any public use, it is error to refuse to instruct that the jury could not take into consideration defendant’s organization as a boom company in order to enhance or affect the damages for condemning property rights which were simply private property rights not devoted to a public use.</p> <p>Navigable Waters — Beds and Shores- — -Title—Grant by United States — Unmeandered Streams. The state, under Const., art. 17, § 1, being the owner of the beds and shores of navigable streams, a railroád grant of designated lots across which there was an unmeandered navigable slough does not convey the title to the shores or bed of the slough, the limit of the grant being ordinary high water where there is no meander line.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered April 27, 1915, upon findings in favor of the plaintiffs, in an action to recover a broker’s commission, tried to the court.</p>

<p>Husband and Wife — Community Property- — Liability—Torts of Husband. Community property is not subject to the lien of a judgment recovered against the husband for a tort which was not committed for the benefit of the community.</p> <p>Quieting Title — Right of Action — Void Lien. Under Rem. & Bal. Code, § 785, an action to quiet title may he maintained to remove the cloud of a judgment lien against community property, although the judgment was against the husband, for tort and not enforcihle against the property; since the statute authorizes the action by any person claiming an interest where the invalidity of the apparent lien can only he shown by extrinsic evidence.</p>

, entered January 29, 1916, upon findings in favor of the defendants, in an action to foreclose a mortgage, tried to the court.

<p>Judgment — Bar—Splitting Causes of Action — Effect. Where plaintiffs, having deeded lands to defendants, who instead of securing an unpaid balance, defrauded the plaintiffs by mortgaging the lands to a third party and absconding, began two actions, the first, to recover damages in the amount of the mortgage, and the second to quiet title, which latter was amended to ask cancellation of the deed for the .same fraud without asking a money judgment, judgment in the second action, granting cancellation, is a bar to recovery in the first action on the money demand; since the plaintiff attempted to divide a single cause of action, and judgment in the second suit concluded his rights (Morris, C. J., and Holcomb, J., dissenting).</p> <p>Same. It is immaterial that the mortgagee and another were made additional parties in the second action, since they were immaterial parties.</p>

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered May 10, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered July 12, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in a collision with a street car.

<p>Appeal from an order of the superior court for King county, Gilliam, J., entered May 25, 1915, quashing service of summons in an action for damages sustained through the loss of live stock.</p>

<p>Evidence — Declarations—Third Persons — Admissibility. In an action by a dealer for the price of automobile tires sold, evidence of a conversation between representatives of the tire company, had when the plaintiff was not present and of which plaintiff had no knowledge, is inadmissible to prove that defendant bought the tires direct from the tire company.</p> <p>Same. In an action by a dealer for the price of automobile tires sold, evidence of a settlement between defendant and the tire company covering tires sold to defendant by the company is inadmissible.</p> <p>Principal and Agent — Fact oe Agency — Evidence—Admissibility. In an action by a dealer for the price of automobile tires sold, claimed by defendant to have been furnished under a contract with the tire company, it is not prejudicial error to strike the statement of a witness that plaintiff was “agent” of the tire company, where it was not shown that he was such agent for the purpose of carrying out the tire company’s contract.</p> <p>Same — Fact oe Agency — Actions by Agent. A dealer, having an agency for automobile tires to be sold generally at certain prices and to defendant at a discount, may maintain an action in his own name for the price of tires purchased from the company and paid for by him and sold to the defendant, it not appearing that he was the agent of the company for any other purpose.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, entered December IT, 1914, upon findings in favor of the plaintiffs, in an action for rent, tried to the court.</p>

Appeal by plaintiffs from a judgment of the superior court for King county, Ronald, J., entered November 16, 1915, upon the verdict of a jury favorable to the defendants, by direction of the court, in an action on a policy of fire insurance.

<p>Appeal from a judgment of the superior court for Kitsap county, Gilliam, J., entered June 26, 1915, upon granting a nonsuit, dismissing an action for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, McCroskey, J., entered November 8, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for contribution.</p>

, entered January 6, 1915, upon findings in favor of the plaintiff, in an action to foreclose a chattel mortgage, tried to the court.

<p>Appeal from an order of the superior court for King county, Dykeman, J., entered June 1, 1915, denying a petition to modify a decree of divorce.</p>

, entered August 3, 1915, upon sustaining a demurrer to the complaint, dismissing an action on a promissory note and to foreclose a mortgage.

, entered November 24, 1915, upon sustaining a demurrer to the petition, dismissing an action for a writ of mandamus to compel obedience to an order of the board of state tax commissioners.

, entered May 5, 1915, upon a trial and conviction, of violating an act relating to the regulation of common carriers of passengers.

<p>Fraud — Misrepresentations—• Complaint — Sufficiency. A complaint, liberally construed on demurrer as required by Rem. & Bal. Code, § 285, sufficiently states a cause of action for fraud, where it is alleged that plaintiffs were induced to purchase a house and lot in reliance upon false representations that the lot had a frontage of 60 feet and was free from vermin and disease germs, when in fact it had a frontage of but 50 feet and was so infested with vermin and diphtheria germs that one of plaintiffs children contracted diphtheria and the house had to be abandoned and was of no value.</p>

, entered February 26, 1915, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action in tort.

<p>Appeal — Review—Findings. Findings upon conflicting and evenly balanced oral testimony will not be disturbed on appeal.</p>

<p>Corporations — Contracts—Actions— Evidence — Sufficiency. A promise by a newly formed corporation to pay the outstanding debts of a business purchased of one of the promoters, pursuant to a resolution reciting that such promoter “had offered to sell” the business for $3,000, is sufficiently established by the preliminary agreement to incorporate so providing, signed by the promoters, who became officers and directors and holders of all the capital stock of the new corporation; since the resolution referred to the previous agreement, and was an acceptance of the proposition therein contained.</p>

, entered November 9, 1914, upon findings in favor of the plaintiff, in an action to recover a broker’s commission, tried to the court.

Application filed in the supreme court September 27, 1915, for a writ of mandamus to compel the state highway commissioner to certify his acceptance of work done under a contract for the construction of a highway, and to compel the state auditor to draw a warrant in payment thereof.

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered May 21, 1915, in favor of the defendant, dismissing an action for an injunction, tried to the court.</p>

, entered January 8, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for a breach of promise.

, entered March 13, 1915, in favor of the plaintiffs, confirming the report of referees appointed in an action for partition, after a hearing before the court.

, entered April 22, 1915, upon findings in favor of the plaintiff, in an action to foreclose a lien on corporate stock, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered May 4, 1915, upon a trial and conviction of abortion.</p>

<p>Criminal Law — Defenses—Insanity— Determination — Discretion — Abuse. In the absence of any statute on tbe subject, it is discretionary for the trial court to enter upon an examination of an accused person to determine tbe question of bis sanity with a view of determining tbe right of tbe state to put bim upon trial or enter judgment against bim; and it is not an abuse of discretion to refuse a motion for tbe appointment of a commission for that purpose where tbe motion was supported only by tbe verification of counsel that be believed bis client to be insane, where tbe court bad tbe benefit of observations during tbe trial, at which a jury determined that accused was not insane at tbe time of tbe commission of tbe offense.</p> <p>Same — Defenses—Insanity—Inquiry—Statutes. Rem. & Bal. Code, § 5953, authorizing tbe superior court to cause to be brought before it any person who is alleged to be insane and unsafe to be at large, has no application to a person convicted of crime and already in tbe custody of tbe court, and does not divest tbe trial court of its power to exercise its discretion as to an inquiry touching tbe defendant’s sanity.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered April 21, 1915, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

, entered June 9, 1915, in favor of the plaintiff, in an action for a writ of mandamus to compel a sheriff to levy upon and sell certain real property on execution.

<p>Appeal — Jurisdiction—Amount in .Controversy. Where the complaint alleged, and demanded damages in the sum of $201.50, that is the amount in controversy, and the supreme court has jurisdiction on appeal.</p> <p>Waters and Water Courses — Private Supply — Damages—Public Service Commission — Jurisdiction. The public service commission does not have exclusive jurisdiction, and an action in damages will lie, in case of wrongful acts of a water company in making arbitrary and illegal demands and an unjust enforcement thereof, where the same had nothing to do with discrimination in rates.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered January 30, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, for personal injuries sustained in an elevator accident.</p>

, entered June 14, 1915, denying an application for a writ of mandamus to compel a mayor to sign an ordinance, upon overruling a demurrer to the answer.

<p>Brokers — Compensation—Actions—Defenses—■ Fraud — Participation by Plaintiff. Upon an agreement by both, parties to an exchange of properties that each should pay his own broker and that the one at fault should pay both, in an action by the brokers against the one at fault, the brokers cannot set up that a contemporaneous secret agreement for a less commission in case of defendant’s fault was a fraud upon the other party to the contract, since the brokers were parties to the fraud, and the law will leave them where it finds them.</p> <p>Same — Compensation—Contracts— Evidence — Oral Conditions to Vary Writing. In such a ease, the contemporaneous secret agreement, being in writing, is properly considered in connection with the other written contract, and without reference to oral conditions.</p>

<p>Waters and Water Courses- — Public Supply — Power of City— Surplus. A city has power to purchase a water system theretofore established and to dispose of any excess or surplus in the supply to any person within or without the city.</p> <p>Judgment — Conclusiveness—Parties Concluded. A judgment in an action hy a city involving only the power of a city to purchase a water supply system and the price to he paid, is not res judicata or a bar to an action by taxpayers to enjoin the issuance of bonds for the purchase; as the city was not hound to proceed if the price was unsatisfactory, and until it did the taxpayers were not interested.</p> <p>Waters and Water Courses — Public Supply — Acquisition by City — Sale of Surplus — Statutes. A city has power to acquire a water system and, after supplying its inhabitants, to dispose of surplus water to another municipality, under Rem. & Bal. Code, § 8005, authox-izing such acquisition for the purpose of supplying its inhabitants “and any other persons,” and 3 Id., § 8010-6, giving any city owning and operating its plant the right “to dispose of any surplus . . . remaining after the wants of the inhabitants thereof have been supplied.”</p> <p>Same. The power of a city to dispose of its surplus water after supplying the wants of its inhabitants does not include the power to purchase and maintain a distributing system in another city or acquire the franchise of a water company therefor; since that is not directly or by implication authorized by statute, and the city cannot exercise the functions of such other city or deprive the latter thereof.</p> <p>Municipal Corporations — Public Works — Sale of Bonds- — Interest — Discount. A bond issue to pay for a water works system cannot be sold at a discount of five per cent, ostensibly to cover all commissions, attorney’s fees and expenses, but which was in fact a bonus for the benefit of the buyer increasing the rate of interest which the bonds were to bear.</p> <p>Waters and Water Courses — Public Supply — Acquisition by City — Excess Supply. Where a city purchases an existing water plant, taxpayers cannot complain that the city’s present use is only forty per cent of the supply.</p>

<p>Railroads — -Right of Way — Duty to Pence — Statutes. A railroad company is not liable for damages done by trespassing cattle that strayed from its unfenced right of way to and upon the lands of an adjoining landowner, under Rem. & Bal. Code, §§ 8730, 8731, making the killing of stock upon an unfenced railroad right of way prima facie evidence of negligence, since “stock killing” statutes have no application to such a case.</p> <p>Adjoining Landowners — Duty to Pence — Damages by Trespassing Stock — Liability. Under Rem. & Bal. Code, § 4982, changing the common law rule with reference to trespassing animals on unfenced lands, and providing that an owner who would protect his lands from trespass might demand that an adjoining owner join in a partition fence, an owner of unfenced lands cannot recover of an adjoining owner for damages done by trespassing cattle that strayed across their boundary line, where their presence was not known and they were not wilfully turned upon plaintiff’s lands.</p>

, entered February 10, 1915, upon findings in favor of the plaintiff, in an action to foreclose a mechanics’ lien, after a trial to the court on the merits.

, entered April 16, 1915, upon findings in favor of the plaintiff, in an action to quiet title, after a trial to the court.

, entered June 7, 1915, upon findings in favor of the defendant, in an action to foreclose a chattel mortgage, after a trial to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered April 3, 1915, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Pish —Licenses — Revocation —• Repeal or Statute — Property Rights. The right to take fish and to a fishing location and to the renewal of licenses therefor, by virtue of a survey, location and occupancy pursuant to Rem. & Bal. Code, § 5214, is not a property right nor anything more than a mere revocable license, which was lost on repeal of that section by the fisheries code, Laws 1915, p. 73, § 20.</p> <p>Constitutional Law- — Special Privileges — Pish — Regulation. The fisheries code of 1915 (Laws 1915, p. 67) is not unconstitutional as discriminatory between persons, in that it prohibits gill net fishing and other appliances other than hook and line in certain portions of some of the rivers flowing into Puget Sound, and allows it in others.</p>

Appeal'from a judgment of the superior court for Yakima county, Preble, J., entered November 28, 1914, upon findings in favor of the plaintiffs, in an action for an injunction and damages..

<p>Appeal from a judgment of the superior court for King county, Claypool, J., entered October 21, 1914, dismissing an action on contract, upon granting a nonsuit.</p>

<p>Appeal — Record — Waiver of Defects. The omission of the names of certain appellants in a motion to strike the statement of facts is immaterial where their counsel appeared and resisted the motion.</p> <p>Appeal — Decisions—Finality. Upon denial of a petition for rehearing directed to an order striking the statement of facts, the order is not subject to review.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered April %, 1915, upon findings in favor of the defendant, in an action for rescission, tried to the court.</p>

, entered May 22, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through the setting off of a blast.

<p>Constitutional Law — Due Process — Notice—Prostitution—Nuisance — Abatement—Penalty—Liability op Owner. The provision of the “Red Light” law, 3 Rem. & Bal. Code, § 946-1 et seq., making the owner of a house used for the purposes of prostitution liable in person and property for a fine of $300, to he entered as part of the decree of abatement, is unconstitutional as the taking of property without due process of law, where the owner was not in possession and had no notice, actual or constructive, of the purposes for which the house was being used.</p> <p>Disorderly Houses — Penalty—“Tax.” The fine of $300 put upon the property of an innocent owner, in abatement proceedings under the “Red Light Law,” being a charge in gross and not according to its value, is a penalty and cannot be upheld as occupation tax or a “deterrent.” __</p>

<p>Insubance — Theft—Intent—Misuse of Automobile — Policy. A policy insuring an automobile against loss or damage by “theft, robbery or pilferage” does not cover a loss when the car was wrecked while lawfully in the possession of an employee of a garage company under instructions to deliver it to the owner, although such employee went out of his way in making the trip, where he had no intent to steal or pilfer it; as the policy covers only intentional stealing.</p>

<p>Vendor and Purchaser — Rescission by Vendee — Estoppel. Vendees, entitled to a deed containing personal covenants, are not es-topped to rescind for failure of title by the fact that they orally agreed to take a deed from a third person who held the legal title, the vendors not "being parties to such agreement and having no notice thereof, and the vendees deriving no benefit therefrom.</p> <p>Same — Rescission by Vendee — Laches—Estoppel. Vendees in a trade for land are not estopped by laches from rescinding for failure of title, where their delay was due to the vendor’s request for time; since the vendors by delaying to answer are estopped to invoke delay as an estoppel against rescission.</p> <p>Same. Failure to abandon possession of land improved by mistake, does not estop the vendee from rescinding for failure of title.</p> <p>Same — Mistake—Remedies oe Vendee — Rescission or Reformation. Rescission, and not reformation of a deed to another tract originally given by mistake, is the vendee’s proper remedy where the vendors had no title to the land pointed out and actually purchased.</p>

<p>Contracts — Construction — Details — Performance — Excuse— Prevention by Law. Although a written contract, complete in itself, for the crushing and removal of rock upon certain lots, provided that the rock crushing plant might occupy the premises, nonperformance is not excused, as being prevented “by law,” by reason of an injunction obtained by an adjoining landower preventing operation of the crusher installed on the lots; since such occupation was a mere detail of performance and not of the essence of the contract.</p> <p>Same — Performance—Construction—Interlineations. The fact that the clause whereby the owner of the lots agreed to the crushing of rock thereon and agreed to add sufficient machinery to complete the work was interlined does not change the construction to be given to the contract, the interlineation or correction not being challenged for fraud.</p> <p>Appeal — Review—Findings. A finding on conflicting evidence will not be disturbed where the evidence does not preponderate against it.</p>

<p>Release — Impeaching—Evidence — Sufficiency. The testimony to overcome a written release of damages must he clear and convincing, especially where the signer “was at himself; ” and is insufficient, where it appears that he was intelligent, sought the settlement, and then asked for a life job, and he alone testified that he signed under a misunderstanding and promise of a life job, two witnesses testifying that the release was read and explained to him.</p>

, entered September 25, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort, after a trial on the merits.

<p>Conspiracy — To Defeaud — Evidence-t-Sufficiency. A conspiracy of attorneys in asserting a fictitious claim for damages from slander is not established by evidence of unethical conduct between the attorney and his client and in disclosing to plaintiff the contents of a letter inviting participation in a suit for slander, inducing the settlement, where the cause of action existed and the attorney did nothing that any attorney might not properly do in the interests of his client (Chadwick, J., dissenting).</p>

<p>Appeal from a judgment of the superior court for Franklin county, Mills, J., entered June 23, 1915, in favor of the relator in mandamus proceedings to compel the furnishing of water, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered December 30, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered June 19, 1915, upon findings in favor of the defendants, in an action for damages sustained in an automobile collision, tried to the court.

<p>Appeal from a judgment of the superior court for Walla Walla county, McCroskey, J., entered June 7, 1915, allowing an administrator’s final account, on objections by the sole heir.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered July 10, 1915, in favor of the defendant, dismissing an action to quiet title, after a trial to the court.</p>

<p>Insurance — Policy—Removal of Goods — Forfeiture. A stipulation in a policy of fire insurance that the goods are insured only while at the designated location and that the policy shall be void if the property is removed without the company’s consent, is of the essence of the contract, and the policy is annulled where the insured removed the goods without permission.</p> <p>Same. Such clause is not merely a warranty or condition, under 3 Rem. & Bal. Code, § 6059-34, providing that breach of a warranty or condition shall not avoid the policy unless such breach contributes to the loss.</p> <p>Same- — Policy—Forfeiture—Estoppel. Where an insured made request of an insurance agent for consent to the removal of goods, insured at a particular place, to a new location, as required by the policy, and removed the same on the next day without waiting for permission, the failure of the company to object does not work an estoppel to avoid the policy.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered January 16, 1915, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered January 15, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death, after a trial on the merits.

a judgment of the superior court for Franklin county, Linn, J., entered July 20, 1915, dismissing an action to recover a tax, paid under protest, after a trial to the court.

<p>Appeal from a judgment of the superior court for Franklin county, Linn, J., entered March 16, 1915, upon findings in favor of the plaintiff, in an action for the foreclosure of a mortgage, tried to the court.</p>

<p>Appeal — Review—Decision—Law op Case. Where there is no material change in the evidence, a decision as to its sufficiency on a former appeal becomes the law of the case and conclusive on a second appeal.</p> <p>Appeal — Review—Instructions. Error cannot be predicated on the refusal to give instructions that are covered in the general charge.</p> <p>Principal and Agent — Apparent Authority — Actions—Instructions. An instruction that a principal owes the duty to use “reasonable care” to oversee the acts of an agent with reference to his business is not prejudicial where the real point was that he was bound by the apparent authority which he knew, or reasonably should have known, the agent was assuming, and the same was covered by other instructions.</p> <p>Trial — Deliberations—Instructions—-Requests. Upon a request for further instructions, the court may refer the jury to written instructions answering the questions fully, permitted to go to the jury room by agreement of counsel, in the absence of request by counsel for anything more specific.</p> <p>Same — Deliberations op Jury — Instructions. Admonitions to a jury to consult together and make an effort to agree etc., are not prejudicial where there was nothing said calculated to coerce the judgment or lay the conscience of any reasonable juror.</p>

<p>Appeal by defendant from a judgment of the superior court for King county, Tallman, J., entered June 16, 1915, upon the verdict of a jury awarding damages in eminent domain proceedings.</p>

<p>Tbover and Conversion — Constructive Conversion — Purported Sale. A sale by defendant of all cedar poles “owned by us at Gray’s Spur,” when the defendant had no poles there, is a constructive conversion of plaintiff’s poles there located and claimed by the vendee.</p> <p>Same — Evidence—Suoticiency—Admissibility. Upon an issue as to whether defendant converted to its own use certain rejected culls from a lot of cedar poles purchased, by branding them, the fact that it attempted to sell them after removing all it had purchased, is sufficient to raise an inference that it did brand them; and evidence of a witness that some of them which he purchased were so branded is admissible.</p> <p>Evidence — Parol Evidence — To Vary Writing. A memorandum of sale of “all poles owned by us at Gray’s Spur,” cannot be explained or varied by oral evidence as to what the vendor intended to sell.</p> <p>Trover and Conversion — Actions—Instructions—Intent. Upon an issue as to the constructive conversion of cedar poles by a sale of the same as poles of the defendant, what the defendant “intended” is merged in the act, and properly omitted from instructions as to what constitutes a conversion.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered May 11, 1915, upon findings in favor of the plaintiffs, in consolidated actions to foreclose mechanics’ liens, tried to the court.</p>

<p>Waters and Water Courses — Surface Waters — Diversion. An upper proprietor may by means of drainage ditches conduct and hasten the flow of surface waters naturally draining into a gully, in case it does not increase the quantity of water naturally reaching the lands of a lower proprietor.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered July 3, 1915, upon findings in favor of the plaintiff, in an action of replevin, tried to the court.</p>

<p>Insurance — Indemnity—Notice—Time—Excuse. Failure to give immediate notice of an accident, as required by a policy of indemnity insurance, will not avoid the policy where it was impossible to give notice until the insured had- notice, which was done.</p> <p>Same — -Notice or Loss — By Mail — -Evidence—Sufficiency. Evidence of the mailing of letters to insured, with return address thereon, to which no reply was received and that the letters were not returned, is insufficient to establish notice, where the insured denied having received the letters.</p> <p>Same — -Indemnity—Notice of Accident — Imputed Notice — Principal and Agent. Knowledge on the part of an employee through whose fault an accident happened is not imputed to the employer carrying a policy of indemnity insurance which required the insured to give “immediate” notice of an accident insured against.</p> <p>Appeal — Review—Theories. A decision based on.an erroneous theory tried <te novo on appeal, will be sustained if correct on any theory.</p> <p>Appeal — Review—Insufficient Findings. Defective findings will not invalidate a judgment, where on trial de novo on appeal the evidence is found to justify the judgment.</p> <p>Insurance — Indemnity—Policy — Recovery — Costs of Defense. Where an indemnity company refused the tendered defense of a personal injury case, reasonable attorney’s and witnesses’ fees and expenses incurred by the insured are recoverable in an action on a policy of indemnity insurance providing that all expenses in defending the suit and costs assessed against the insured shall be paid by the indemnity company.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Jackson, J., entered June 30, 1915, upon findings in favor of the plaintiff, in an action of claim and delivery, tried to the court.</p>