Volume 91 — Washington Reports

<p>Appeal from a judgment of the superior court for Lincoln county, Webster, J., entered March 25, 1915, sustaining the probate of a will, after a contest, tried on the merits to the court.</p>

, entered June 10, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract, after a trial on the merits.

<p>States — Public Debt — Power to Contract — Interest on Bonds— Statutes. Laws 1915, p. 700, § 3, of the act for bonding the capitol building lands for $1,500,000, the principal payable only from the capitol building fund derived from the sale of the lands, which provides for the levy of an annual tax sufficient to meet the interest on the bonds, the same to be deemed a loan from the general fund and repaid from the proceeds of sales or leases of capitol building lands, is unconstitutional as the creation of a “debt” for such interest charges, within the meaning of Const., art. 8, § 3, providing that no debts except as specified, shall hereafter be contracted on behalf of the state unless authorized by law for some specified object, which law shall provide ways and means, exclusive of loans, for the payment of interest on such debt as it falls due, and also to discharge the principal of such debt within twenty years, and shall be submitted to a vote of the people at a general election; since the interest is not payable from the same source as the principal, but is to be raised by an annual tax, in the “same manner as other state levies are made,” in violation of the purpose of the constitution to prevent the taxpayers from being assessed therefor unless authorized by a vote of the people.</p> <p>Same. The proceeds of the capitol building lands cannot be considered as an asset equivalent to cash for the purpose of meeting such interest charge.</p> <p>Same. The bonding of the state capitol lands for the purpose of erecting buildings and creating a “debt” for interest charges, without submitting the same to a vote of the people, in violation of the constitution, cannot be sustained on the principle authorizing municipal corporations to exceed their debt limit for the purpose of meeting necessary obligations, as the same is not applicable.</p> <p>Mobkis, C. X, Pabkeb, and Mount, JX, dissent.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Sessions, J., entered December 30, 1914, upon findings in favor of the defendants, sustaining the probate of a will, after a contest tried to the court on the merits.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered October 7, 1914, upon findings in favor of the defendants, in an action on contract.</p>

<p>Sales — Contract—Resale—Construction. A sale of goods authorizing the buyer to “return the goods” to the sellers and obtain credit contemplates a resale requiring delivery to pass title; and the title does not pass by delivery to a local transfer company for reshipment to the sellers at Chicago, in the absence of any bill of lading or notice and acceptance; since the carrier was the buyer’s agent and the goods were subject to his control, and liable to attachment.</p>

<p>Certiorari to review a judgment of the superior court for Spokane county, Huneke, J., entered December 11, 1915, in an action on contract, dismissing a complaint in intervention, upon sustaining a demurrer thereto.</p>

<p>Appeal from a judgment of the superior court for What-com county, Pemberton, J., entered June 8, 1915, in favor of the plaintiff, in mandamus proceedings, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered May 3, 1915, in favor of the plaintiff, in mandamus proceedings, tried to the court.</p>

, entered December 21, 1915, upon findings in favor of the petitioners, confirming the formation of an irrigation district, after a trial to the court.

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered March 30, 1915, dismissing an action for rescission, after a trial on the merits to the court.</p>

Appeal by petitioner in mandamus, from an order of the superior court for Okanogan county, Pendergast, J., entered June 8, 1915, directing the prosecuting attorney to make an investigation, upon overruling a demurrer to a petition to compel quo warranto proceedings.

<p>Sales — Wabranty-—Breach—Evidence—Sueeiciency. The mere fact that seeds, sold upon express warranty as to their germinating quality, did not grow when planted in good soil, is not sufficient to show a breach of the warranty, where a germination test before sale showed that the seeds were good, and the buyer kept them too long in water and placed them on Ice allowing the ice to melt, which tended to prevent germination.</p>

<p>Pleading — Amendments—At Tkial. Under Rem. & Bal. Code, § 303, allowing amendments of any pleadings in furtherance of justice, the discretion of the trial court in allowing amendments will not be disturbed on appeal except for abuse; and it is not an abuse of discretion to allow a trial amendment to an answer without terms, where the plaintiffs objected to a continuance that had been granted on terms to enable them to reply to the amendment.</p> <p>Specific Peefokmance — Pleading — Judgment on Pleading' — Exchange of Pbopekties. In an action for the specific performance of a contract for the exchange of properties, the pleadings do not entitle plaintiff to judgment on the theory that defendants are shown to be willing to make the exchange, where it appears that plaintiffs were unable to perform at the time of the readiness of the defendants, that the parties then verbally rescinded, and defendants had since improved their property and changed their position on account of the verbal rescission.</p> <p>Exchange of Pbopebties — Rescission—Acting on Vebbal Rescission — Evidence—Sufficiency. Plaintiffs are not entitled to specific performance of a contract for the exchange of properties free of incumbrances, where they were unable to remove tax liens from their property while defendants were ready and able to make the exchange, and thereupon the contract was verbally rescinded, the defendants rented plaintiffs’ property and paid monthly rent thereon and made improvements upon their own property and were thereafter unwilling to make the exchange; since the conduct of plaintiffs may be shown in defense, even if the verbal rescission was of no effect.</p>

Appeal, from a judgment of the superior court for Kittitas county, Kauffman, J., entered January 27, 1915, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained in a collision with an automobile.

, entered April 19, 1915, upon findings in favor of the plaintiff, in an action for breach of contract to convey real estate.

<p>Corporation's — Sale op Stock — Rescission—Fraud—Evidence— Sufficiency. The rescission of a sale of corporate stock of a moving picture concern for fraud is warranted, where the preponderance of the evidence supported the claim of the plaintiff, a young man 24 years of age without business experience, that the defendants, officers and principal stockholders of the company, falsely represented that the company was making money above expenses and had for eight weeks, when in fact it had always lost money, that its lease called for monthly rentals of $150 to $200 a month, when in fact it called for $250 per month, and that plaintiff relied on the representations and was induced thereby to purchase stock.</p> <p>Same — Sale of Stock — Fraud — Reliance Upon — Matters of Fact. A sale of stock in a corporation may be rescinded for false representations as to its financial condition, the volume of its business and the amount of its income and expenses being matters of fact peculiarly within the knowledge of the officers of the company making the same, even though there was an opportunity to investigate.</p>

<p>Trial — Province of Court and Jury — Directing Judgment — Garnishment. Where, in garnishment proceedings, there is substantially no dispute on any of the facts, the court is warranted in talcing an issue from the jury and directing judgment.</p> <p>Appeal — Review—Parties Entitled to Allege Error. Upon an appeal by plaintiff from a judgment in garnishment limiting his recovery, error in refusing to dismiss the garnishment cannot be urged by garnishees who did not appeal.</p> <p>Garnishment — Judgment—Attorney’s Fees — Statutes. Under Rem. & Bal. Code, § 704, allowing costs and reasonable attorney’s fees against plaintiff to a garnishee who is discharged upon his answer, and against defendant if the garnishee is held, with costs to abide the result if the answer is controverted, attorney’s fees are properly allowed against plaintiff where the answer was controverted and the court found substantially in accordance with the answers.</p>

<p>Appeal from an order of the superior court for Benton county, Linn, J., entered September 11, 1915, in favor of the plaintiff, denying a motion to vacate a default judgment.</p>

<p>New Tbial — Grounds—Misconduct of Juror. The denial of a new trial for misconduct of a juror is a proper exercise of the discretion of the trial court, where upon disputed facts, the evidence preponderates in favor of the ruling.</p> <p>Appeal — Record—Review—Abstracts. In the absence of an abstract of the evidence, the court will not examine a voluminous record to determine whether instructions complained of were erroneous as applied to the facts, where they correctly stated abstract principles of law.</p>

Appeal by plaintiff from a judgment of the superior court for King county, Mitchell, J., entered January 15, 1915, in favor of the plaintiff for nominal damages, in an action in tort, tried to the court.

, entered May 1, 1915, upon findings in favor of the defendant, dismissing an action on a promissory note, tried to the court.

, entered May 1, 1915, upon findings in favor of the plaintiff, in an action to recover personal property, tried to the court.

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered December 8, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.</p>

<p>Criminal Law — Former Jeopardy — Identity of Offenses — Particular Description. The dismissal of an information for stealing thirty sacks of “Hybrid” wheat, after jury sworn, does not bar the filing of a new information for stealing thirty sacks of “Jones Fife” wheat; since, while a particular description is unnecessary, if given, a variance is fatal, and a conviction of the one does not amount to conviction of the other.</p>

, entered June 8, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for fraud.

<p>Limitation of Actions — Stock—Unpaid Subscriptions — Call — Due Date. A cause of action upon an unpaid stock subscription of a solvent corporation, call for which was made payable at a future date, accrues and the statute of limitations commences to run from the date the call was due and payable, and not from the date of the call.</p> <p>Corporations- — Stock Subscription — Fraud — Purchase of Property. An allegation of fraud, inducing a subscription to the capital stock of a corporation organized for the purpose of purchasing certain real estate, is not sustained where the preponderance of the evidence was to the effect that the property was acquired at its then market value.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered April 26, 1915, upon findings in favor of the defendant, in an action on a promissory note, tried to the court.</p>

, entered November 25,1914, in favor of the defendants, dismissing an action to foreclose a mortgage, after a trial to the court on the merits.

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered December 23, 1914, dismissing an action for personal injuries, upon granting a nonsuit.</p>

, entered April 24, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a promissory note.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered May 21, 1915, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered March 6, 1915, upon findings in favor of the plaintiffs, in replevin, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered May 25, 1915, upon findings in favor of the plaintiffs, in an action in equity, tried to the court.</p>

, entered June 28, 1915, in favor of the defendant, upon stipulated facts, in an action to recover state insurance premiums.

<p>Appeal from a judgment of the superior court for Whitman county, McCroskey, J., entered May 18, 1915, upon findings in favor of the plaintiff, in an action to restrain an execution sale.</p>

, entered June 14, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort, tided to the court.

, entered May 27, 1914, in favor of the plaintiffs, setting aside a reassessment on appeal from the order of the city council confirming the roll.

<p>Judgment — Conclusiveness—Assessments—Municipal Corporations — Reassessments—■ Limit — Enlarged District. A judgment upon appeal from a city council, reducing an assessment for a local improvement to fifty per cent of tbe assessed value of tbe property in the district, as limited by 3 Rem. & Bal. Code, § 7892-12, is not res judicata of tbe right to reassess tbe property in excess of tbe reduced amounts, in proceedings therefor including tbe property, in an enlarged district, in which the unit for determining the fifty per cent limit is tbe entire enlarged assessment district, and not tbe particular lots or tracts composing tbe district; as tbe reassessment is an assessment de novo in all things; especially in view of 3 Rem. & Bal. Code, § 7892-14 expressly authorizing an enlarged district for a reassessment; and Id., § 7892-43, declaring that tbe reassessment may include property not in tbe original assessment district.</p> <p>Municipal Corporations — Public Improvements — Reassessments —Procedure—Statutes. A reassessment under 3 Rem. & Bal. Code, § 7892-43 is an independent proceeding wbicb may be made without reference to Id., §§ 7892-13 and 7892-14 relating to tbe initiation of the improvement, wbicb have no application to reassessments, this being tbe necessary implication from Id., § 7892-44 specifying in what particulars tbe law governing original assessments shall apply to reassessments.</p> <p>Same — Reassessments—Validity. Any reassessment based on notice and a bearing is valid where in its aggregate it does not exceed tbe actual cost of tbe improvement and interest, less any sum paid under a former assessment, and it is equitably distributed upon all property specially benefited by the improvement in proportion to such benefits.</p> <p>Same — Reassessments — Rebates — Nonobjecting Owners • — ■ Waiver of Rights. In making a reassessment, upon reducing tbe amounts charged against objecting owners, no levy can be made for tbe purpose of rebating to nonobjecting owners whose original assessments were left unchanged; since by not objecting they confessed tbe original assessments, and there is no authority for such rebates.</p> <p>Same — Reassessment—Review-—-Decision. Tbe inclusion of an unlawful rebate in a reassessment does not necessitate a new assessment, as a horizontal reduction is a mere matter of calculation.</p> <p>Costs — On Appeal From Assessment — Transcript-Statutes. 3 Rem. & Bal. Code, § 7892-22, authorizing costs for a transcript furnished by a city clerk on appeal from an assessment roll, does not permit the allowance of costs for a transcript furnished by a party.</p>

<p>Appeal — Review — Invited Ebror — Assessments. Upon appeal from a judgment confirming a reassessment, error cannot be predicated upon the adoption of the zone system, where that was done at the instance of the appellants.</p> <p>Municipal Cobporations — Reassessments — Interest and' Costs —Reappobtionment. Upon levying a reassessment to make' up a reduction in the original assessment allowed to objecting owners, those who paid up their original assessments in full cannot he assessed to make up accumulated interest and the cost of the reassessment necessitated by the nonpayment of the objecting owners.</p>

<p>Municipal Corporations — Public Improvements- — Reassessments ■ — Subsequent Statutes. As ttie legislature may authorize a reassessment even where the work was ordered done' without any initial jurisdiction or power in the city, a reassessment may be made under an act passed subsequent to the making of the improvement and the original assessment roll.</p> <p>Same — Reassessment—Apportionment — Statutes. A reassessment being a proceeding de novo in which the council may enlarge the district, a reassessment upon an enlarged district need not be made in accordance with the five-zone system, as required of original assessments by 3 Rem. & Bal. Code, §7892-13; there being no such statutory requirement for reassessments.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Sessions, J., entered June 29, 1914, dismissing an action for an injunction and for damages, tried to the court.</p>

, entered September 10, 1914, refusing to modify a judgment entered on remittitur of the supreme court, after a hearing before the court.

, entered January 29, 1915, upon findings in favor of the defendants, dismissing an action to recover upon an unpaid stock subscription, tried to the court.

<p>Physicians and Surgeons — Action for Services — Negligence— Evidence — Sufficiency. Where a patient died after an extrahazardous operation and the physician sued to recover for his services, the defense of negligence is not made out merely by showing that no blood test was made before the operation to determine the oxygen carrying power of the blood, there being no attempt to show that the failure to take the blood test contributed to the death, or that such test had ever been made in operations of that character in that vicinity.</p> <p>Same — Defenses—Contract. In an action by a physician for services in performing an operation, evidence of a remark by plaintiff, after the patient had refused to go to specialists recommended, that if she. was willing to take a chance with him, he was willing to take a chance with her, does not raise the inference that plaintiff took the chance of losing the value of his services if the operation was not successful.</p> <p>Same. Where a physician, operating for goiter, did not contract to remove it, his right to recover for his services is not defeated by the fact that the operation was not successful.</p>

<p>Eminent Domain — Persons Entitled — Contract Rights — Private Way of Necessity — Statutes. A private way of necessity for a logging road may be condemned although, the petitioner already has a lease thereof for as long a term as may be required, under 3 Rem. & Bal. Code, § 5857-1, mating the right to condemn depend merely upon whether one has land so situated with reference to the land of another that it is necessary for its proper use and enjoyment to have a private way of necessity, without reference to any contract rights.</p>

, entered November 23, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover money paid.

, entered December 1, 1914, granting a new trial, after the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for personal injuries.

<p>Public Lands — Homesteads—Title—Pinal Proof — Patent. The title of the government passes to a homestead claimant at the time of making final proof, and such is the effect of the patent, though issued thereafter; and not at the time when the claimant's right to make proof matured.</p> <p>Indians — Acquisition of Homestead — Limitations on Alienation — Statutes. The act of 1884 (23 St. at L. 96) providing that all patents for homesteads selected by such Indians “as may now be located on public lands, or as may . . . hereafter so locate,” shall limit the power of alienation for the period of twenty-five years, is intended to supplement and modify the act of 1875 (18 Id., p. 420) providing that the title to lands acquired by Indians under the homestead laws shall not be alienated for a period of five years; and the same applies to lands for which final proof was not made at the time the act of 1884 was passed, although the right had matured. ‘</p> <p>Same — Limitation on Alienation — Extension—Power of Congress. Congress has power to extend the period of limitation upon the power of alienation of Indian homesteads, between the time of making the original entry and the perfection of title by final proof.</p> <p>Same — Limitation on Alienation — Removal—Judgment Quieting Title — Validity. Where Indians alienated their homesteads prior to the expiration of the twenty-five years limiting their power to do so, a default judgment quieting the title as against the Indians, upon service by publication, is ineffective, since it is not binding upon the United States, which holds title in trust for the sole use of the Indians, under the express provisions of the act of 1884 (23 St. at L. 96).</p> <p>Vendor and Purchaser — Rescission by Vendee — Acts Constituting. There are sufficient unequivocal acts of rescission by the purchasers where, upon discovery of failure of title, they timely refused to pay the balance due upon the first purchase money note at maturity, or other notes declared due, or to receive the deed tendered to them.</p>

, entered March 22, 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 in falling a tree.

, entered December 4, 1914, in favor of the defendants, denying the probate of an alleged nuncupative will, after a hearing before the court.

<p>Vendor and Purchaser — Contract—Remedies of Purchaser — Demand for Deed. Under an installment contract for land, entitling tbe purchaser, after paying one-fourth or more of the price, “at the expiration of five years from the date of the contract,” to a deed for a proportionate part of the land, a demand for a proportional deed made two days after the expiration of the five years is in time, as it is approximately at the expiration of the contract.</p> <p>Same • — • Remedies of Purchaser — Contract — Construction — Breach — Damages. Under a contract for five acres of land at the agreed price of $2,000, entitling the purchaser, after paying one-fourth or more of the price, to a deed for a proportionate part upon ceasing payments, “except that no fractional part of an acre shall be deeded under this provision,” the purchaser, upon breach by the vendor, in refusing to deed one acre after payment of $500 and interest, may elect to recover damages; but being entitled to but one acre, can recover as damages only the agreed upon price therefor, or $400, with interest from the time of ceasing to pay.</p>

<p>Corporations — Oeeicers, Agents and “Servants” — Employment— Removal. Under Rem. & Bal. Code, § 3683, authorizing corporations to appoint “officers, agents and servants,” to require security of them, and to “remove them at will,” the term “servants” includes an “assistant horticulturist” employed for one year hy an “orchards” company, and is not to he restricted to employees in a fiduciary capacity.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered May 8, 1915, dismissing an action to foreclose a chattel mortgage, tried to the court.</p>

Motion to dismiss an appeal from a judgment of the superior court for King county, Smith J., entered November 19, 1915, in an action to recover property held under a levy of execution.

<p>Certiorari — When Lies — Interlocutory Orders — Appeal—Final Orders. Certiorari does not lie to review an interlocutory order denying a motion to strike a complaint in intervention, as the same is not reviewable either by appeal or writ of certiorari prior to the rendition of final judgment in the action, under Rem. & Bal. Code, § 1716, limiting the right to appeal from interlocutory orders affecting a substantial right to orders that determine the action or prevent a final judgment therein.</p>

, entered July 1, 1915, upon granting a nonsuit, dismissing an action upon a fidelity insurance bond, tried to the court and a jury.

, entered April 13, 1915, in favor of the plaintiff, in an action to reform a sheriff’s return on execution sale, tried to the court.

, entered March 8, 1915, upon findings in favor of the plaintiffs, in an action for money had and received, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Sessions, J., entered January 21, 1915, in favor of the defendant, in an action on a life insurance policy, tried to the court upon an agreed statement of facts.</p>

, entered September 19, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a sawmill.

, entered November 12, 1914, upon sustaining a demurrer to the complaint, dismissing an action for equitable relief, tried to the court.

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered January 30, 1915, dismissing an action to foreclose a chattel mortgage, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered July 10, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages resulting from the sale of intoxicating liquors.</p>

, entered May 10, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by being struck by a motorcycle.

<p>Appeal by plaintiff from a judgment of the superior court for Spokane county, Jackson, J., entered May 24, 1915, upon findings in favor of the plaintiff for nominal damages, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered April 17, 1915, upon findings in favor of the plaintiff, in an action for equitable relief, tried to the court.</p>

, entered August 28, 1915, dismissing an action upon a fire insurance policy, upon sustaining a motion to quash service of summons.

, entered January 4, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for wrongful death.

<p>Municipal Corporations — Use of Streets — Injury to Pedestrians —Ice Wagon — Negligence—Question for Jury. It is for the jury to determine whether an ice deliverer was guilty of negligence in placing a two hundred pound piece of ice in the delivery wagon in such a position that, after delivery of pieces holding it in place, it was liable to shake loose in driving over rough ground, and did so, striking a child in the street.</p> <p>Same — Pedestrian or Trespasser — Question fob Jury. The fact that a child had been a trespasser on the step of an ice wagon does not prevent recovery for injuries received after she had left the wagon and her status as a traveler had been resumed, and such fact is a question for the jury, where the evidence was conflicting.</p> <p>Damages — Personal Injuries — Excessive Verdict. A recovery of $3,000 for injuries sustained by a child eight years of age, struck by a piece of ice falling from an ice wagon, is not excessive, where it appears that two bones of the leg were broken, the flesh badly cut, necessitating many stitches, and five weeks in the hospital, and resulting in an ugly scar and a reduced size of the leg.</p>

Appeal by plaintiff from a judgment of the superior court for Stevens county, Jackson, J., entered January 25, 1915, upon the verdict of a jury rendered in favor of the plaintiff, allowing partial recovery in an action to recover a salary.

, entered May 4, 1915, upon the verdict of a jury rendered in favor of the plain tiff, in an action for personal injuries sustained by a pedestrian struck by a taxicab.

, entered July 21, 1915, upon findings in favor of the plaintiff, in an action to foreclose a delinquency certificate, tried to the court.

, entered January 16, 1913, upon findings in favor of the defendants, in an action for damages for fraud, tried to the court.

, entered March 11, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for wrongful death.

<p>Appeal from a judgment of the superior court for Stevens county, Jackson, J., entered October 2, 1914, in favor of the defendant, in an action for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered December 5, 1914, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal- — Record—Abstract of Evidence — Dismissal. Except in an extreme case an appeal will not be dismissed for undue amplification of the abstract, under 3 Rem. & Bal. Code, § 1730-1, providing for an abstract of the evidence in narrative form unless it is “necessary for the discussion of the evidence.”</p> <p>Appeal — Review—Pleadings—Amendment. An appeal will not be dismissed on account of the insufficiency of the complaint to state a cause of action where the evidence is sufficient, since the complaint will be deemed amended to conform to the proof.</p> <p>Trial — Findings—Necessity. Findings of fact and conclusions of law are not essential in an equity case tried de novo on appeal.</p> <p>Brokers — Powers — Scope of Authority — Waiver — Rights of Principal. It is beyond the scope of the authority of a real estate broker, employed to effect an exchange of properties, to enter into an agreement waiving the right to rely upon representations made by the other party as an inducement to the trade, and the principal is not estopped by the agent’s signing such an agreement without notice to him.</p> <p>Exchange of Properties — Fraud — Evidence — Sufficiency. A mortgage for $4,250, included as part consideration for an exchange of properties, and represented by defendant to be bankable and as good as cash, is shown to have been in bad faith, where it appears that the mortgaged property, standing in the name of defendant’s wife, was worth from $1,600 to $2,000, with a loan value of $600, was listed by defendant for sale at $3,200 and the notes and mortgage given to defendant the following day, and indorsed without recourse, and was not recorded until four months later, about two weeks before the trade, and an alleged grantee of the land never recorded his deed or paid any interest.</p> <p>Same — Fraud—Misrepresentations—Reliance Upon. On an exchange of properties, a party living in Iowa, whose agent lived' in Oregon, may rely on representations, made to induce the trade, that a real estate mortgage on property in this state, fair on its face, was in good faith, and readily convertible into cash; the same being statements of fact known to be untrue.</p> <p>Same — Rescission—Partial — Divisible Contract. Where consideration for an exchange of properties was divided into distinct items, and included a note and real estate mortgage for $4,250, the consideration is divisible, and partial rescission may he granted where such item was not according to representations inducing the trade.</p>

<p>Certiorari to review a judgment of the superior court for Jefferson county, Ralston, J., entered October 5, 1915, adjudging a public use and necessity in condemnation proceedings.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered July 3, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in cranking the engine of a motor truck.</p>

<p>Municipal Corporations — Claims for Damages — Time eor Piling. A claim for damages against the city alleging injuries on Dec. 14, 1913, received by reason of typhoid germs in the city water, which injuries “are still accruing and have been continuously accruing since the date aforesaid,” filed on April 4th following, is too late, not having been filed within thirty days after the time when the claim accrued, as required by Rem. & Bal. Code, § 7998; filing within the thirty days not being excused by the allegations of continuously receiving additional injuries.</p> <p>Same — Claims for Damages — Nature of Claims. Although the city’s negligence occurred in business rather than in a governmental function, a claim for damages through typhoid germs in the city water must be filed within thirty days, under Rem. & Bal. Code, § 7998, requiring all claims for damages to be so filed.</p>

F. Wright, J., entered November 16, 1915, affirming an order of the board of state land commissioners respecting a lease of harbor area.

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered January 5, 1915, upon findings in favor of the plaintiff, in an action on a promissory note.</p>

, entered March 31, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for extortion.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered January 14, 1915, upon sustaining a demurrer to the information, dismissing a prosecution for perjury in the second degree.</p>

<p>Evidence — Parol to Vary Writing — Admissibility. Evidence of an oral agreement contradicting a clause in a written contract that the parties had investigated the properties to be exchanged, is admissible in an action for rescission, upon an allegation of fraud in procuring the contract, and to show that the contract actually entered into was fraudulent and void.</p> <p>Appeal — Review—Harmless Error — Admission oe Evidence. The admission of incompetent evidence is not prejudicial error, where the cause is triable de novo on appeal.</p> <p>Exchange oe Property — Rescission — Eradd — Evidence—Sdeeiciency. A judgment for rescission of an exchange of properties is sustained where it appears that plaintiff was grossly overreached by false representations, that notes given for a face value of $47,000, as part consideration, were practically worthless, that, though the contract recited that both parties had examined the properties and were satisfied, the complainant understood it as a tentative agree-' ment, under which he would have an opportunity to investigate titles and securities and he offered to rescind within two weeks, as soon as his investigation had disclosed the unconscionable nature of the transaction.</p> <p>Vendor and Purchaser — Misrepresentation oe Vendor — Caveat Emptor. The rule of caveat emptor should not be extended so as to deny remedy to an improvident purchaser against false representations accompanied with unconscionable gains on the part of a fraudulent vendor.</p> <p>Vendor and Purchaser — Rescission—Tender of Interest. Upon seeking rescission, failure to tender interest payments made by defendants would not defeat a judgment for plaintiffs, especially where the payments were nominal in amount and were taken care of in the decree of the court.</p> <p>Holcomb, Main, Parker, and Chadwick, JJ., dissent.</p>

, entered March 30, 1914, in favor of the plaintiff, upon sustaining a demurrer to the affirmative defenses, in an action on promissory notes, tried to the court.

<p>Appeal from a judgment of the superior court for Pacific county, Edward H. Wright, J., entered June 22, 1914, upon findings in favor of the defendant, in an action for a broker’s commission, tried to the court.</p>

<p>Evidence — Parol Evidence — Bills and Notes — Conditions Subsequent. In the absence of fraud, a contemporaneous oral agreement providing for the surrender of a promissory note upon the execution by the promisor of a will making the payee a legatee to the extent of the face value of the note cannot he shown as a defense to an action upon the note.</p> <p>Appeal — Review — Pleadings. Rulings of the trial court in settling the pleadings are not material on appeal, where the appellant was permitted to introduce evidence on any matter constituting a defense, whether included in the pleadings as finally settled or not.</p> <p>Pleading — Amendment—Condition op Cause. The denial of a reguest to amend a pleading was not error, where it was not presented until after the cause had been tried and the court had announced its ruling.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Linn, J., entered March 18, 1915, upon findings in favor of the plaintiff, in an action for conversion, tried to the court.</p>

<p>Taxation — Assessment—Excessive Valuation — Fbaud. The assessment of the capital stock of a bank at sixty per cent of its actual value according to the basis adopted by the assessor for all personal property assessable for the year will not be set, aside as constructively fraudulent, although for the same year real estaté, under the biennial assessment of the preceding year, was assessed at only forty-five per cent of its value.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered October 13, 1915, upon a trial and conviction of robbery.</p>

<p>Street Railroads — Franchise—Alteration. Laws 1889-90, p. 183, § 117, giving municipal corporations power to grant franchises for the use of their streets confers no authority for the alteration of such franchises subsequent to their grant so as to impose additional obligations on the holder in the matter of street paving differing from the conditions of the franchise contract.</p> <p>Street Railroads — Police Power — Street Paving. The police power authorizing a municipality to require a street railway company to keep its tracks in safe condition for the public welfare cannot be extended so as to require the company at its own expense to pave with other material than that laid by it under its franchise contract.</p> <p>Street Railroads — Paving — Municipal Powers. Cities of the third class are without delegated power, in the absence of express statute, to require railway companies that have constructed their tracks and are operating cars thereon to pave or improve any part of the street on which they are laid.</p> <p>Street Railroads — Franchises — Paving Requirements. Under ordinance No. 397 of the city of Olympia granting a franchise to a street railway company to lay its tracks in the city streets and plank within the rails and for eighteen inches outside the rails, with the option of adopting such pavement of a permanent character as the city may employ in paving the street, the city has no power to require the company to pave with other material than planking, notwithstanding a provision of the ordinance reserving to the city the right to amend or alter the franchise, “having due regard for the vested rights” of the grantee.</p> <p>Street Railroads — -Paving—Construction op Franchise. Under an ordinance granting an extension of a street railway franchise over a portion of the street theretofore not included, and providing that the grantee “shall maintain such paving between the rails of the railway and to a distance of eighteen inches on each side of the same as shall be used by the city in the paving of Fourth street along the line of this road,” the term “maintenance” is to be construed as meaning “maintain after construction,” in view of the fact that the ordinance further provides that the right of extension shall be subject to the terms of the original franchise wherein it was provided that the city retained power to pave all streets over which the company might extend its lines, hut all such work should he done so as to offer as little obstruction as possible to the operation of the railway.</p>

, entered September 1, 1915, upon findings in favor of the plaintiff, in an action on a promissory note, tried to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered June 15, 1915, 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 Lewis county, Rice, J., entered December 13, 1915, upon findings in favor of the plaintiff, in an action upon a life insurance policy, tried to the court.</p>

, entered June 10, 1915, upon findings in favor of the plaintiffs, in an action to foreclose a lien, tried to the court.

, entered February 2, 1916, upon findings in favor of the plaintiffs, in an action to foreclose liens, tried to the court.

<p>Criminal Law — Trial — Conduct of Judge — Comment on Evidence. Where a witness for the defendant in a criminal prosecution, hy means of a proper cross-examination hy the prosecutor, had already been discredited for perjury in her testimony on a former trial relating to the same state of facts, the action of the court in further examining the witness to ascertain whether she was certain as to the nature of the testimony previously given and as to the nature and effect of her testimony in the pending trial would not constitute a comment on the evidence within the prohibition of Const., art. 4, § 16.</p> <p>Criminal Law — Trial—Arrest of Witness for Perjury. Where a witness admitted the falsity of her testimony on a former trial involving the same state of facts under examination in a pending trial, the conduct of the court in having such witness held to answer for a charge of perjury, during the absence of the jury from the court room, would not constitute prejudicial error.</p> <p>Prostitution — Punishment—Excessiveness. A sentence of four year’s confinement in the state reformatory against a man convicted of receiving compensation for causing a female to cohabit with others than her husband is not so unreasonable as to show abuse of the court’s discretion.</p>

<p>Municipal Corporations — Eminent Domain — Appeal — Record. Tbe superior court having entire jurisdiction of eminent domain proceedings until final judgment, the record on appeal from a judgment therein properly includes proceedings before one of the judges of the court who, subsequent to the judgment, had been disqualified for prejudice and a second trial held before another judge of the same court.</p> <p>Municipal Corporations — Improvements — Assessments — Power of Court to Fix Boundaries. The superior court has no power, under the statute authorizing eminent domain proceedings by cities, to direct the exact limits of territory that should be included in any assessment district, that being a legislative power delegated to the eminent domain commissioners.</p> <p>Municipal Corporations — Assessment of Benefits — Arbitrary Assessment. The action of the eminent domain commissioners in assessing the total cost for the appropriation of land for street purposes against the remainder of the tract through which the street was opened was arbitrary, where the object was to extend an existing street in a settled district through the tract, so as to connect with a paved boulevard which was of some special benefit to the property owners of the district whose street was thus extended.</p>

Cross-appeals from a judgment of the superior court for King county, Albertson, J., entered February 25, 1915, upon findings in favor of the defendants, in an action for an accounting, tried to the court.

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered September 20, 1915, upon findings favorable to certain claimants, in an action to determine the liability on a contractor’s bond.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered September M, 1915, in favor of the defendant, in an action for death under the workmen’s compensation act, tried to the court.</p>

<p>Executors and Administrators — De Bonis Non — Powers—Action of Unlawful Detainer. On the death of a husband serving as an executor for his deceased wife’s one-half of the community estate, the right of action against a tenant for unlawful detainer passes to the administrator de bonis non of the community estate and not to the administrator of the deceased executor.</p> <p>Executors and Administrators — Powers as Against Heirs. Actions to recover both real and personal property may be maintained by an executor or administrator even against those claiming the property as heirs or devisees.</p>

Appeals from judgments of the superior court for Chehalis county, Sheeks, J., entered September 14, 1914, in favor of the plaintiff, in actions to set aside conveyances of property as in fraud of the rights of a creditor, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered December 1, 1914, in favor of the defendants, in an action to recover land as a public highway.</p>

<p>Cemeteries — Sale of Crypt — Certificate—Execution. A corporation holding a contract of subscription for the purchase of a burial crypt cannot recover from the subscriber upon the tender of a certificate for the crypt made by another corporation which at the date of the certificate neither had title to the property nor had any corporate existence.</p> <p>Cemeteries — Sale of Crypt — Contract for Deed — Tender of Certificate. Where a contract for a cemetery crypt provided for the delivery of a deed free of all incumbrances, the tender of a certificate in place of a deed was inadequate.</p> <p>Tender — Keeping Good. Tender of a certificate for a cemetery crypt, not kept good by being brought into court, is not sufficient to sustain recovery upon a contract for the purchase price.</p>

, entered June 7, 1915, upon findings in favor of the plaintiff, after a trial before the court upon an agreed statement of facts, in an action to recover upon a check.

<p>Railroads — Fires—Negligence — Evidence — Question for Jury. In an action for damages for fire negligently communicated, a question for the jury was presented, though no testimony as to eyewitnesses of actual communication, where there was evidence of a fire on defendants’ land, one arising on plaintiffs’ land a few hours later, a strong wind from the former in the direction of the latter, and continuous scars of devastation between the two places, even though there was a possibility of communication from independent fires in the neighborhood.</p> <p>Railroads — Fires—Instructions. In an action for negligently communicating fire to plaintiffs’ timber, a requested instruction for the jury to find for defendants, if they should find that plaintiffs’ timber caught fire from other fires and was certain to be burned, though the two fires might have mingled before they reached plaintiffs’ land, was properly refused, where the jury were instructed to take into account the other fires, and that the burden was on plaintiffs to trace defendants’ fire to their own premises and show that their fire was caused by defendants’ particular fire and none other.</p> <p>Appeal — Review—Harmless Error — Admission of Evidence. In an action for negligently communicating fire from defendants’ to plaintiffs’ premises, the admission of evidence that, just before the fire, the defendants took out burning permits, which were soon after revoked,. was harmless, where it was in evidence that defendants did at the time start a fire on their lands.</p> <p>Evidence — Res Gestae — Admissibility. In an action against defendants for negligently communicating fire to plaintiffs’ premises, evidence that simultaneously with the fire, one of the defendants stated: “I have got an awful fire — the fire got away from me,” was admissible as part of the res gestae, whether or not defendant or his men had caused the fire, and whether or not they had tried to put it out.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered April 7, 1915, upon granting a nonsuit, dismissing an action for personal injuries sustained in a fall upon a sidewalk.</p>

<p>Taxation — Sales—Remedies ojt Owner — Attack on Void Sales —Tender. In replevin hy a vendee to recover property conditionally sold, in which the defense was that the property had been sold for taxes alleged to he a valid lien, plaintiffs reply that the property was distrained and sold for the taxes of another who was never the owner of the property, is not an attack upon the validity of a tax, and so is not within Rem. & Bal. Code, §§ 955, 956, making tender of the tax justly due a condition precedent to an action to recover property sold for taxes.</p>

E. Wright, J., entered July 31, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for injuries resulting from an automobile collision.

Cross-appeals from a judgment of the superior court for King county, Ronald, J., entered October 9, 1915, upon the verdict of a jury rendered in favor of the plaintiffs for $2,500, for personal injuries caused by blasting.

, entered August 1£, 1915, upon findings in favor of the plaintiff, in an action for separate maintenance, tried to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered January 15, 1916, in favor of the plaintiff, upon an agreed statement of facts, in an action to foreclose a mortgage.</p>

, entered December 6, 1915, in favor of the plaintiff upon the pleadings, in an action for equitable relief, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered October 6, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for trespass.</p>

, entered September 1, 1915, in favor of the defendant on remittitur from the supreme court dismissing consolidated actions for replevin and on an account stated.

<p>Seduction — Unchastity—Evidence—Admissibility. In a prosecution for seduction, a witness for the defense called to establish the unchastity of the prosecuting witness, who admitted that he had tried to have sexual intercourse with her, may be properly asked to state what he did.</p> <p>Witnesses — Impeaching Own Witness — Subprise. Where, in a prosecution for seduction of one of previous chaste character, the defense is surprised by the statement of its own witness that he had not had sexual intercourse with the prosecuting witness, the defense should be allowed to interrogate the witness as to former variant statements, and lay the foundation for impeachment by such statements.</p> <p>Morris, C. J., and Fullerton, J., dissent.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered July 13, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for slander.</p>

, entered May 8, 1915, upon findings in favor of the plaintiff, in an action on a policy of indemnity insurance, tried to the court.

, entered October 21, 1916, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for legal services.

<p>Adverse Possession — Vacant Lands — Actual Occupancy. Title by adverse possession is sufficiently shown, although the taxes had been paid by the legal owner, where there was occupancy by plaintiff for the statutory period of a small strip of vacant land, which had been cut off from the main body of the legal owner’s land by a fence maintained by plaintiff and his grantor for many years, and which had been used as a boat landing by plaintiff and others with his permission, and had been cultivated by plaintiff, not completely, but to the extent that the nature of watSr front land allowed.</p>

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

, entered December 31, 1914, upon findings in favor of the plaintiff, in an action to determine the title to real property, tried to the court.

, entered April 15, 1915, modifying a decree of divorce as respecting the payment of alimony, after a hearing before the court.

, entered January 5, 1915, setting aside an assessment roll for a public improvement, on appeal from the order of the city council confirming the roll.

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered November 11, 1914, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered February 18, 1915, upon findings in favor of the plaintiffs, in an action of forcible entry and detainer, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered April 27, 1915, upon granting a nonsuit, dismissing an action on contract.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered March .30, 1914, in favor of the plaintiff, upon sustaining a demurrer to the affirmative defenses, in an action on promissory notes, tried to the court.</p>