Volume 94 — Washington Reports

<p>Specific Performance — Contracts—Description—Certainty. An agreement for the exchange of properties, describing a tract as “48 acres more or less bounded upon the north by Cedar creek, situated about one mile east of Etna, Wash.,” is too indefinite for specific performance, notwithstanding the further mention that it was the “same property conveyed to the party of the first part by W. Tate and wife in 1912,” where the Tate deed was not delivered with the contract; since parol evidence would be necessary to assist in identifying the land.</p> <p>Same — Defenses—Tender and Ability to Perform — Evidence— Sufficiency. Specific performance of a contract for an exchange of properties is properly denied, where plaintiff’s tender of his deed was insufficient as being outside the chain of title, and he failed to furnish an abstract within the time agreed upon, although demanded, and an abstract furnished at the trial showed transactions that were hardly in good faith, and that plaintiff had not been ready, able and willing to perform on his part.</p> <p>Same — Defenses — Equitable Defenses • — ■ Unconscionable Contract. Specific performance will not be decreed against parties who were induced by fraud to give property of the value of $11,100 for property not worth more than $7,700, although they made their own examination; since a court of equity will not lend its aid to enforce an unfair contract, leaving the party to his remedy in an action at law for damages.</p>

<p>Railroads — Crossings—Cost of Construction and Maintenance —Safety Devices — Apportionment—Statutes. Rem. Code, § 8733-6, subd. c, providing that the portion of the expense of making a railroad crossing at grade not chargeable to a county or city shall be apportioned between the-railroad companies, means not only the expense of constructing the actual crossing, but the expense of constructing and maintaining such protective devices mentioned in § 8733-3 as the public service commission may require.</p> <p>Same — Crossings—Cost of Safety Devices. In the absence of a statute to the contrary, a railroad desiring to cross another at grade must bear the expense of the crossing, including the cost of installing and maintaining such safety devices as the necessities of the case require.</p> <p>Same — Crossings—Safety Appliances — Costs—Apportionment— Due Process. The railroad company first in time takes its right subject to being crossed by the line of another railway; and hence it is within the power of the state to impose upon a railroad company whose line is crossed at grade by another line the duty of installing and maintaining such safety devices as the conditions require for the safety of the public, and Rem. Code, § 8733-6, subd. c, requiring an apportionment of the costs thereof between the railroad companies does not violate the constitutional inhibition against taking private property for public use without compensation.</p> <p>Same. Under Rem. Code, § 8733-6, subd. c, providing that the portion of the expense of making a railroad crossing at grade not chargeable to a county or city shall be apportioned between the railroad companies, the public service commission cannot charge thé entire cost against the road desiring the crossing, merely because the older company was first in point of time, where the record shows no equity in favor of one road over the other; since to require one road to bear all the expense is not an “apportionment.”</p>

, entered January 17, 1916, upon findings in favor of certain defendants, adjudging the rights of judg-' ment lien claimants to a fund deposited in court, in an action for specific performance.

<p>Appeal — Record—Statement of Facts. Affidavits used upon the hearing of a motion cannot be considered on appeal unless brought up by statement of facts.</p> <p>Criminal Law — Appeal—Duty to Prosecute — Diligence. It is the duty of defendant appealing from a conviction in justice court to diligently prosecute his appeal; and a delay of over five months after perfecting the appeal, with no excuse shown, warrants a dismissal of the appeal for want of diligence.</p>

, entered February 7, 1916, upon findings in favor of the plaintiff, adjudging title to money deposited in court by a garnishee, after a trial to the court.

<p>Municipal Corporations — Streets—Sidewalks—Snow and Ice— Liability op Owners — Complaint. A complaint charging that defendant “carelessly, negligently and unlawfully” allowed snow and ice to accumulate upon its sidewalk, states only a conclusion and is insufficient, where the facts alleged show that the snow and ice accumulated in a short time through natural causes, and no ordinance was pleaded making it the duty of defendant to keep the sidewalk clear of snow and ice.</p> <p>Same — Liability op Owner. The abutting owner owes no duty to pedestrians to keep the sidewalk free from snow and ice, in the absence of any statute or ordinance requiring him to do so.</p>

<p>Mortgages — -Foreclosure—Successive Sales — Statutes. It is not necessary to order successive sales when different mortgages are foreclosed in one suit, where the statute, Rem. Code, § 1118, providing that the court shall order the mortgaged property sold to satisfy the mortgage and costs of action, does not require separate sales.</p>

<p>. Appeal — Review—Harmless Error — Instructions—Highways— Negligence. In an action for injuries sustained by a traveler by team through obstructions in a county road, an instruction which, standing alone, seemed to require the plaintiff to show that he was free from contributory negligence, is not prejudicial error where it was merely a prefatory or explanatory statement and other instructions properly defined contributory negligence under the circumstances shown.</p> <p>Same. In an action for injuries sustained by a traveler by team, through hitting an obstruction at the side of the road after he had pulled out to the left on a hillside to allow an automobile to pass, it is not reversible error to give an instruction relating to the law of the road explanatory of his right to turn either to the right or left as the circumstances required, notwithstanding the law of the road was not applicable to the case, where appellant invited the error by making a request on that subject.</p> <p>Highways — Obstructions — Personal Injuries — Negligence— Evidence. Negligence in the maintenance of a county road is not shown by the fact that a log was left near the side of the road, which was in good condition and thirteen feet wide and reasonably safe for travel, and no accident would have happened except for the fact that plaintiff, carrying no lights, turned out of the roadway into the hank on a dark night.</p>

Cross-appeals from a judgment of the superior court for Skagit county, Pemberton, J., entered July 14, 1915, upon findings in favor of the plaintiffs, in an action to foreclose mechanics’ liens.

<p>Appeal from a judgment of the superior court for Grays Harbor county, Irwin, J., entered September 16, 1915, upon findings in favor of the defendants, in an action to establish claims against a contractor’s bond, tried to the court.</p>

<p>Actions — Joinder—Contract and Tort — Arising Out op Same Transaction. Causes of action for tbe rental due on a leased pump, and for recovery of possession of tbe pump under tbe claim and delivery statutes, may be united in tbe same action, under Rem. Code, § 296, providing for tbe joinder of several causes of action wben they arise out of tbe same transaction.</p> <p>Costs — Items Recoverable — Premium on Bond. A premium paid on a replevin bond furnished by plaintiff is recoverable as “costs and disbursements” in tbe action, under Rem. Code, § 6059-194, providing tbat in all actions tbe party entitled to recover costs may include sucb reasonable sum as may bave been paid a surety company for executing or guaranteeing any bond, as may be allowed by tbe court.</p>

<p>Limitation oe Actions — Running Account — Accrual oe Action. Where goods were furnished to a city at irregular intervals during a term of years upon separate orders, and no demand made or moneys paid until after the furnishing of the last item, there were no mutual demands and no mutual account that would prevent the running of the statute of limitations as to the earlier items, and the cause is barred as to all goods not furnished within three years prior to the commencement of the action under Rem. Code, § 159.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered December 5, 1914, upon findings in favor of the defendant, dismissing an action on an account stated, tried to the court.</p>

<p>Railroads — Animals on Track — Negligence—-Evidence ■ — • Sufficiency. Tbe jury is warranted in finding negligence by a railroad company in killing a horse on the tracks within yard limits where fences were not required, although the horse was a trespasser, where it appears that the horse was seen by the fireman of a passenger train when about five hundred feet distant, and that there was evidence that the train might have been stopped within that distance.</p> <p>Same — Animals on Track — Contributory Negligence — Evidence — Sufficiency. Where the law prohibiting stock from running at large was not in force, it is not contributory negligence, as a matter of law, for a man to turn his horses out on the common where they could go upon unfenced railroad tracks, where it appears that he lived about a mile away and the horses had been in the habit of grazing in the other direction and had not theretofore gone upon the tracks.</p>

, entered December 31, 1915, upon findings in favor of the plaintiffs, in an action on a contractor’s bond, tried to the court.

<p>Eminent Domain — Compensation — Damages — Readjusting Buildings — Reducing Expense. Under a liberal construction of the constitutional provision requiring payment for private property taken for public use, and the general rule requiring one who is damaged to do what he can to minimize his damages, a property owner may recover damages in eminent domain proceedings to cover the cost of readjusting its buildings in contemplation of a second condemnation, where, after a condemnation to raise water in a canal to a seven-foot level, it was known that the government would raise the water two feet further and another condemnation therefor would be necessary; and a readjustment of the buildings to the seven-foot level by one operation, and afterwards to the nine-foot level, would have doubled the expense; since the property owner was not proceeding voluntarily to readjust its property and was in duty bound to minimize the damages, and the rule limiting damages to the value of the property at the time of the trial would not be just.</p>

<p>Embezzlement — By Agent — Defenses — Appbopbiation Undee Claim of Title — Insteuctions—Statutes. Upon a prosecution of a broker for larceny by embezzlement in withholding, as agent of the purchaser, part of the purchase price which he had deducted as his commission, in which there was conflicting evidence as to defendant’s misrepresentations and as to the fact of agency, the defendant is entitled to an instruction to the jury in accordance with Rem. Code, § 2608, which provides that it shall be a sufficient defense to a prosecution for larceny that the property was appropriated openly and avowedly under a claim of title preferred in good faith, even though the claim is untenable.</p>

<p>Trade-Masks and Trade-Names — Persons Entitled — Vendors. Under Rem. Code, § 9492, making it unlawful to counterfeit, imitate, or use any “label, trade-mark, ... or form of advertisement” adopted and filed for registration as required by tbe act, for the purpose of designating any goods, “as having been made, manufactured, produced, packed, or put on sale” by another, a person not originating or manufacturing goods is entitled to trade-mark a name for goods packed and “put on sale” by him.</p> <p>Same — Names Subject — "Groceteria." The term “Groceteria,” applied to grocery stores operated without the use of clerks or deliveries, in which the purchaser makes his own selections, may be trade-marked under Rem. Code, § 9492, where it is admitted that the person claiming the right to the same was the first to use the word.</p> <p>Same — Infringement. The use of the words “Pacific Groceteria” is an infringement of a trade-mark of “Groceteria No. 1”; since it is sufficiently similar to deceive persons of ordinary caution.</p> <p>Same — Extent of Property — Place of Business. A concern located at Seattle claiming a trade-mark of the name “Groceteria” registered under Rem. Code, § 9492, may maintain an action to enjoin the use of the name by another at Tacoma, where it is alleged in the complaint and admitted that plaintiff was doing business from its Seattle office with people in the city of Tacoma.</p>

<p>Fraud — Seller’s Praise — Instructions. In an action for fraud in the sale of an automobile which was at hand and examined by the purchaser, it is proper to instruct that the seller has a right to exalt the value of his property to the highest point the purchaser’s credulity will bear, and boastful assertions and exaggerated description do not amount to fraud.</p> <p>Same. In such an action, it is a proper test of actionable fraud that the representations complained of must be calculated to deceive a person acting with reasonable and ordinary prudence.</p> <p>Same — Statements as to Value — Instructions. In such an action, it is proper to instruct that a person may not rely upon mere opinions as to the value of the property, and must use that degree of caution and diligence in ascertaining the conditions of the property which an ordinarily prudent man would exercise under like circumstances.</p>

<p>Appeal from a judgment of the superior court for Mason county, Mitchell, J., entered February 8, 1916, upon findings in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

<p>Evidence — Judicial Notice. The courts will take judicial notice that “wood alcohol” is a poison.</p> <p>Homicide — Selling Poison Without Label — Information. An information charging the accused with producing death through the sale of “wood alcohol” to be used as a beverage is sufficient without charging that it is a poison or that the accused knew it would produce death if drunk; especially in view of Rem. Code, § 2508, prohibiting the sale of any “preparation which according to standard works on medicine or materia medica is liable to be destructive to adult human life” unless it is labeled as a poison.</p> <p>Same — Manslaughter—Intent. The act of selling unbranded poison, from which death results is manslaughter, although without intent to take human life, under Rem. Code, §§ 2392 to 2394.</p> <p>Criminal Law — Appeal—Harmless Error. One convicted of manslaughter through the sale of unbranded poison cannot move in arrest of judgment on the ground that he was guilty of murder in having sold it knowing that the deceased would drink it without knowledge of its poisonous quality.</p> <p>Homicide — Selling Poisons — “Wood Alcohol.” Wood alcohol cannot be said to be not intoxicating, where it appears that the preliminary symptoms resemble those observed after an excessive dose of alcohol, although more marked.</p> <p>Criminal Law — Degrees of Offense — Harmless Error — Instructions. In a prosecution for manslaughter through the selling of unhranded poison, in -violation of Rem. Code, § 2507, it is not prejudicial error to instruct that one violating the act would he guilty of a misdemeanor.</p>

, entered May 19, 1916, upon findings in favor of the plaintiff, in an action by a lessee to recover a deposit paid the lessor to be applied as rent upon premises leased for saloon purposes, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered May 27, 1916, upon sustaining a demurrer to the complaint, dismissing an action for rent.</p>

<p>Libel and Slander — Criminal Prosecution — Defamation of Deceased Person — Malicious Intent. To constitute common law libel by publishing defamatory matter of any person deceased, malicious intention of the defendant to injure the family and posterity of the deceased must be expressly averred and proved.</p> <p>Same — Defamation of Deceased Person — Injury to Family— Statutes — Construction. Rem. & Bal. Code, § 2777, which defines criminal libel by defamation of a person deceased substantially as at common law, reguiring that it tend to scandalize or provoke the deceased’s surviving relatives or friends, having been superseded by Rem. Code, § 2424, making it libel “to expose the memory of one deceased to hatred, contempt, ridicule or obloguy,” a clear legislative intent is manifested to eliminate the prior limitations as to injury to the deceased’s relatives and friends; hence defamation of the memory of George Washington is libel under the latter section.</p> <p>Same. Rem. Code, § 2424, making it libel to expose the “memory of one deceased” to hatred, contempt, or obloguy, is not restricted to the memory of a deceased existing in the minds of living persons, but applies as well to memory resting in tradition and history.</p> <p>Constitutional Law — Freedom of Speech. The provision of the Federal constitutional amendment that Congress shall make no law abridging the freedom of speech or of the press is only a limitation upon the power of Congress, and does not apply to state laws.</p> <p>Same — Freedom of Speech — Libel. Const., art. 1, § 5, providing that every person may freely speak or write on all subjects, “being responsible for the abuse of that right,” does not give the right to maliciously defame the memory of a deceased person, or render void Rem. Code, § 2424, making such defamation criminal libel.</p> <p>Criminal Law — Appeal—Harmless Error. A refusal of a motion under Rem. Code, § 2101, to have an information “set aside” because it was not verified, is error without prejudice, where the court properly permitted an amended and verified information to be filed.</p> <p>Criminal Law — Former Jeopardy — “Dismissal” — Statutes. Rem. & Bal. Code, §§2124, 2125, providing that an order of “dismissal” shall be a bar tp another prosecution for the same offense if it be a misdemeanor, has no reference to an order “setting aside” an information, provided for in Rem. Code, § 2101, in case it is not signed, or verified, etc.; but applies only to dismissals which take the place of the common law nolle prosequi.</p> <p>Criminal Law — Trial—Presence op Accused. Error cannot be predicated upon instructions to the jurors while the accused was absent from the court room, where the address was to all jurors in attendance on the court touching a matter foreign to the case.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered April 26, 1916, upon the verdiet of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered May 15, 1916, in favor of the defendants, after order of remand from the supreme court, in an action by an administrator to subject an equitable interest in real property to the claims of creditors.

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered February 23, 1916, in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

<p>Criminal Law — Habitual Criminals — Indictment and Information — Sufficiency. An information charging the accused with being an habitual criminal under Rem. Code, § 2286, substantially in the language of the statute, is sufficient although it does not affirmatively allege that the prior convictions were had in courts of competent jurisdiction, nor formally plead each step in the procedure to final judgment.</p> <p>Same — Habitual Criminals — Indictment and Information- — Sufficiency — Statutes—Repeal. Rem. & Bal. Code, § 2177, requiring that an information against an habitual criminal must set forth the fact, time and place of the former convictions, was repealed by Rem. Code, § 2286, a later enactment covering the whole subject-matter.</p>

<p>Eminent Domain — Compensation — Apportionment Between Mortgagor and Mortgagee. Where the state condemned land for a state road, without making the mortgagees parties as it might have none, and an award was entered in favor of the owners, the state must pay the award to the owners before taking possession, notwithstanding the fact that the mortgagee had purchased at a subsequent foreclosure sale and had quitclaimed to the state, subject to redemption; since the award, unappealed from, is conclusive on the subject of title, as between the parties, and the question of apportionment between mortgagor and mortgagee is immaterial.</p> <p>Same — Payment oe Compensation — Proceedings—Statutes—Liability oe State on Taking Possession. Rem. Code, § 900, providing that in eminent domain proceedings the attorney general “shall” file with the state auditor a certificate setting forth the amount of the award against the state, and making it the duty of the auditor to draw a warrant therefor, leaves it discretionary with the attorney general to file the certificate, as the state may abandon the proceedings before taking possession if the award is unsatisfactory; hence § 900 does not conflict with the earlier act, Id., § 889, providing that no execution shall issue against the state on any judgment.</p> <p>Same — Payment oe Compensation — Proceedings—Parties. The state having taken possession of lands before paying the award, and refused to avail itself of Rem. Code, § 900, authorizing an abandonment of the proceedings, it cannot escape liability for the amount of the award, and the attorney general is therefore not a necessary party to a proceeding to compel the state auditor to issue a warrant for the amount due, which under § 900 he was to issue upon the attorney general’s certificate.</p> <p>Same — Proceedings—Pleading and Prooe. Where the state took possession of condemned lands before paying the award, in violation of Const., art. 1, § 16, requiring compensation to be first made, the law presumes that the state is prepared to pay the award, and the burden is not upon the claimant to allege or prove the state of the public fund.</p> <p>States — Funds—Appropriations—Form. Neither Const., art. 8, § 4, providing that no money shall be paid out of the treasury except in pursuance of an appropriation by law, nor Rem. Code, § 9008, prohibiting the state auditor from issuing any state warrant unless there is a law authorizing the issue of the same, requires that an appropriation of moneys shall be in any particular form of words, but the same may be made by a general act clearly showing the legislative intent.</p> <p>Eminent Domain — Payment of Compensation — Appropriation— Necessity- — Statutes. A specific appropriation by the legislature to pay awards in condemnation proceedings is not contemplated or necessary to authorize the state auditor to issue a warrant therefor, under the eminent domain act of 1891, entitled an act to regulate the mode of appropriating land and prescribing the method of making compensation, which provides (Rem. Code, §§ 896, 897) that the decree of appropriation shall vest legal title in the state, that the decree shall be recorded and that the state may make payment of the damages by depositing the same in court; especially in view of. Id., § 900, providing for the payment of awards by the issuance of state warrants; since it is no defense to an action to secure a warrant that a special fund provided for the payment of awards had been exhausted.</p> <p>Same — Compensation—Payment—Statutes. Rem. Code, § 5872, providing that the cost of a right of way for a state road acquired by the highway commission shall be paid for from the fund apportioned to such state road does not make that method exclusive, or repeal the provisions of the general eminent domain act which applies where the road fund has been exhausted and the state had taken possession of land and put it to a public use without making compensation.</p>

<p>Appeal from an order of the superior court for Lewis county, Rice, J., entered April 4, 1916, adjudging defendant guilty of contempt of court.</p>

<p>Judgment — Recitals—Persons Concluded — Evidence • — ■ Burden of Proof. Where, after judgment against a trust company holding the record title to lands, plaintiff obtained judgment against the trust company by confession declaring that it held the legal title as trustee for the plaintiff, the judgment, though not binding on the judgment creditors, is prima facie evidence of the fact of trusteeship, in an action brought by plaintiff against the judgment creditors to Quiet his title, and it devolves upon the judgment creditors to show that the judgment was fraudulent as to them.</p>

<p>Witnesses — Competency—Transactions With Person Since Deceased — “Adverse” Party.” Under Rem. Code, § 1211, excluding the testimony of a party in interest or to the record, as to transactions had with a party since deceased where the adverse party sues or defends as executor etc., an executor is an adverse party within the rule, in a proceeding brought by a creditor to compel the executor to inventory certain property as community property in order to satisfy community debts.</p> <p>Same — Competency—Transaction with Person Since Deceased —Adverse Evidence. Upon an attempt by a creditor to subject the deceased’s wife’s property to a community debt, evidence by the executor and his son that the property was in one instance a gift from the son to the mother, and in another a gift from the husband to the wife and that no community funds entered into the transactions, is not evidence “adverse” to the estate, nor is it inadmissible as testimony of a party in interest as to any transaction had with or statement made to or by the deceased, within Rem. Code, § 1211, excluding such testimony; and the statute does not exclude testimony that is not “adverse.”</p>

<p>Weights and Measures — Regulation — Ordinances — Violation. A special contract for the sale of a commodity in bulk by gross weight, where the purchaser is not overreached or deceived, is not in violation of an ordinance which prohibits the sale of any commodity usually sold in bulk or quantity by weight or measure unless wrapped or measured on officially tested scales and unless the portion sold by weight or measure shall be the true net weight or measure which shall be plainly marked on the packages; since the purpose and intent of the ordinance is merely to protect the public from being defrauded by false weights and measures.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Jackson, J., entered November 18, 1916, dismissing, as to certain defendants, an action to foreclose a mortgage, upon sustaining a demurrer to the complaint.</p>

<p>Sales — Warranty—Performance or Breach. A contract for a hoist according to plans and specifications, to be fitted to defendant’s gasoline logging engine, already in use, and to be “connected to a pinion shaft with cut gears, to get two speeds on drums,” with specified revolutions per minute, the hoist having no power itself, does not guarantee the power of the engine to drive the drums at such speeds, and the failure of the engine to develop such speeds does not constitute a breach of warranty.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered December 28, 1914, upon a trial and conviction of larceny and of receiving stolen property.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered November 8, 1915, upon findings in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered January 26, 1916, upon findings in favor of the plaintiff, in an action on contract tried to the court.</p>

<p>Parties — “Real Party in Interest” — Parties Insured Aoainst Loss. It is no defense to an action against a wrongdoer that the plaintiff was insured against the loss by an employers’ liability policy and had recovered the amount of the loss from the insurance company; and hence the plaintiff may maintain the action as the real party in interest, within the meaning of Rem. Code, § 179, especially where the insurance company was a mutual company and plaintiff must contribute to the insurance fund.</p>

<p>Mandamus — When Lies. Mandamus lies only to compel the performance of clear duties that already exist, and to serve some useful purpose.</p> <p>Elections — Canvassing Boards — Powers — Returns • — • Statutes. Under Rem. Code, § 6424, imposing upon a canvassing board for an irrigation district election the usual duties of such boards to open the returns, estimate the vote, and declare the result, the board has no power to go behind the return certified by the election officers and examine the ballots.</p> <p>Same — Ballots—Validity—Certainty. Where two officers were to be elected in an irrigation district, one for a short term and one for a long term, and the ballots failed to designate the term of office for which the several candidates were nominated, the election is void for uncertainty, and evidence cannot be taken to show the intent of the voters.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered April 8, 1916, upon a trial and conviction of unlawfully selling intoxicating liquors.</p>

<p>Corporations — Insolvency—Assets—Ownership of Stock — Burden of Proof — -Evidence—Sufficiency. In a trustee’s action against a stockholder to recover assets of an insolvent corporation, the burden is upon the stockholder to prove by clear and convincing evidence that he held the stock as collateral security; and his oral testimony, corroborated by witnesses hostile to the corporation, to the effect that his note for $2,000 was given by him as a loan to the corporation instead of as payment for the stock, is not sufficient to overcome the presumption and the written records of the corporation that the stock was owned by him.</p> <p>Same — Solvency. The test of the insolvency of a corporation is its inability to pay its debts in due course of business.</p> <p>Same — Insolvency — Officers — Preferences — Notice of Condition. Knowledge of an insolvent condition is imputed to an officer of a corporation, and he cannot profit at the expense of other creditors by having an auto truck turned over to himself in payment of a loan which he made to the company while the company was insolvent.</p> <p>Same — -Insolvency—Assets-^-Recovery—Limitations. A trustee in bankruptcy, endeavoring to assemble the assets of an insolvent corporation for the benefit of creditors, is not affected by laches of the officers of the corporation in bringing suit on a claim against a stockholder, but may sue at any time within the period of the statute of limitations.</p>

<p>Attorney and Client — Attorney’s Lien — Possession oe Papers— Bond — Statutes. Under Rem. Code, § 137, providing that the court may require an attorney to deliver over money or papers received in the course of his employment, and § 138, providing that, if the attorney claims a lien, the court may fix the amount of security to be given by the client to satisfy the lien or may summarily inquire into the facts on which the lien is founded, it is error, on application of the client for the delivery of money, books, and papers, for the court to do neither and to dismiss the proceedings, on the theory that the rights of the parties could be tried out in the attorney’s action for fees and expenses; since the client was entitled to his property pending such litigation.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered May 5, 1916, upon findings in favor of the defendants, denying the foreclosure of a mechanics’ lieu, tried to the court.</p>

, entered November 10, 1914, committing a receiver to j ail as for contempt, in case of failure to comply with an order requiring payment of a claim against an insolvent estate.

, entered July 29, 1916, in favor of the defendants, dismissing an action to subject real property to the satisfaction of a judgment, tried to the court.

, entered June 14, 1915, upon findings in favor of the plaintiff, in an action on a promissory note, tried to the court.

, entered June 14, 1915, upon findings in favor of the plaintiff, in an action on a promissory note, tried to the court.

<p>Appeal from an order of the superior court for Lincoln county, Sessions, J., entered March 21, 1916, appointing a receiver pending an action for partition.</p>

, entered November 15, 1915, in favor of certain defendants, upon dismissing the cross-complaint of the mortgagors claiming damages for refusal to reconvey property held under a trust deed, in an action to foreclose a mortgage.

, entered February 24, 1916, upon a conviction of assault in the third degree, after a trial upon an information charging assault in the second degree.

<p>Carriers — Regulation—Reciprocal Demurrage — Constitutional Law — Delegation oe Legislative Powers. Since reciprocal demur-rage charges for delay in failing to furnish a shipper with cars, after demand, though called a penalty, is remedial redress, administrative in its essence and incidental to administrative functions, and since the constitutional division of governmental powers into three separate departments applies only in a limited sense and does not restrict one set of officers to one department exclusively, Rem. Code, §§ 8626-59, 8626-85, empowering the public service commission to fix the time for furnishing cars and provide the penalty to be paid shippers for delays, is not unconstitutional as an unlawful delegation of legislative powers, in contravention of Const., art. 2, § 1; sections 8626-10 and 8626-11, having imposed in express terms the duty to promptly furnish cars.</p> <p>Same. Though judicial power may be conferred by the legislature upon the public service commission, that body cannot assume the legislative function and confer such power upon itself; hence the public service commission cannot, under authority to adopt rules governing reciprocal demurrage charges for failure to furnish cars, adopt a rule providing that, when any dispute or controversy arises between shipper and carrier with reference to the application of the rules for demurrage, a complaint shall be filed with the commission and a trial had subject to review in the same manner as other decisions and orders of the commission.</p> <p>Same — Reciprocal Demurrage — Remedies oe Shipper. The statute providing no method for the collection of demurrage charges to be paid to shippers for delay in furnishing cars, the remedy of the shipper is by action at law; there being no right without a remedy.</p> <p>Same ■ — - Reciprocal Demurrage — Interstate Commerce — Statutes — Construction. Although the terms of Rem. Code, §§ 8626-59, 8626-85, empowering the public service commission to fix the time for furnishing cars and provide the penalty to be paid shippers for delays is broad enough to apply to cars ordered for interstate commerce, the dominant purposes of the act, to be gathered from all of its provisions, to regulate only intrastate commerce must be read into all its provisions.</p> <p>Same. It will not be assumed that the legislature intended to adopt the construction of other state courts that such rules applied to both kinds of commerce, when to do so would make the law unconstitutional.</p>

F. Wright, J., entered May 17, 1916, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action for an injunction.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered January 7, 1916, upon sustaining a demurrer to the information, dismissing a prosecution for operating an automobile without a license.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered January 22, 1916, granting a ■motion in arrest of judgment, after a trial and conviction of larceny.</p>

<p>Appeal — Decision—Law of Case — Points Necessarily Decided. Where, on appeal from a judgment of nonsuit, the case was reversed and remanded for a new trial without expressly referring to respondent’s claim that a certain part of the testimony was inadmissible, the effect of the decision was to hold that the testimony was admissible, as otherwise the error would have been pointed out to guide the second trial, and hence becomes the law of the case and conclusive upon a retrial and a second appeal.</p>

<p>Motion to modify judgment for costs, filed in the supreme court September 5, 1916.</p>

<p>Master and Servant — Safe Place — Defective Guards — Negligence — Contributory Negligence — Question for Jury. The negligence of the master and the contributory negligence of the servant, are questions for the jury, where it appears that an employee, going to his work in the hold of a ship, fell through the hatch, when an iron stanchion at a corner of the hatch upholding a guard rope gave way when the employee, holding onto the rope, was starting in the usual way to descend the hatch ladder, it being necessary for him to take hold of either the rope or the top of the hatch coaming, and the rope and stanchion being apparently strong enough to support the weight of a man.</p> <p>Appeal — Review—Harmless Error — Variance. In a servant’s action for personal injuries, where the proof does not constitute such a variance as to work to the prejudice of the appellant, error cannot be based upon the failure of the court to strictly confine the issues to the alleged necessity of an employee’s taking hold of a rope that gave way and caused him to fall.</p> <p>Same — Workmen’s Compensation Act — Employments Covered— Maritime Service — Admissibility. The workmen’s compensation act compelling all employers and employees engaged in extra hazardous employments to submit to compulsory insurance in lieu of common law remedies, has no application to an employee engaged in unloading a ship lying at a dock in the navigable waters of Puget Sound; since to apply the act to relations arising from maritime service, which are under the legislative control and jurisdiction of the Federal government, would make it operate unequally as between employers or employees, and the state has no power to abolish the remedies afforded by the maritime laws of the United States.</p> <p>Same. In such a case, it is immaterial whether the ship was engaged in intrastate or interstate commerce, so long as it was not in inland waters having no connection with the high seas.</p> <p>Same. It being impossible to compel the ship master to contribute to the accident fund in such a case, it could not have been the intent of the legislature to give his employees the right to compensation from the fund. . . .,</p> <p>Same — Workmen's Compensation Act — Maritime Service — Right to Compensation — Remedies—Admiralty. Under Rem. Code, § 6604-27 of the workmen’s compensation act, providing that, if any employer shall be adjudicated to be outside of the lawful scope of the act, the act shall not apply to his workmen, an employee injured while engaged on a ship in maritime service is not relegated to his remedies in admiralty, by reason of § 6604-1, which abolishes all civil actions for personal injuries in extra hazardous work; since, being outside the lawful scope of the act, all his rights and remedies remain unimpaired as if the act had never become a law of the state.</p> <p>Same — Workmen’s Compensation Act — Employments Covered— “Steamboats,” Etu. Rem. Code, § 6604-2, extending the provisions of the workmen’s compensation act to “steamboats, tugs, and ferries,” must be construed to apply only to vessels operating upon the inland navigable waters of the state over which the jurisdiction of the state courts are exclusive.</p> <p>Courts — Decisions op Federal Courts — Workmen’s Compensation Act. The right to maintain an action in the state court under the workmen’s compensation act is a state question upon which a decision of a Federal district court is not controlling in the state courts.</p> <p>Judgment — Entry—Power to Correct. A clerk’s minute entry óf a judgment of dismissal is properly set aside and expunged as inadvertent where it was entered without the knowledge of court or counsel, upon the court’s oral announcement of an intent to order a dismissal notwithstanding the verdict, upon which the matter was postponed until counsel could prepare a formal' judgment to be presented to the court; and hence does not prevent the court from entering a different judgment when the matter was presented to him with counsel for both parties before the court pursuant to the previous understanding.</p>

<p>Sales — Conditional Sales — Buyer—Rights as to Trespassers— Actions — Real Party in Interest. A vendee in possession under a conditional sales contract may maintain an action for injuries to the property, as the “real party in interest,” within the meaning of Rem. Code, § 179, the same as though he were a bailee; especially in view of the defendant’s right to bring in additional parties.</p> <p>Estoppel — Seller —■ Conditional Title — Appearing as Witness for Party. ' A vendor in a conditional sales contract who testifies on behalf of the vendee in an action to recover for injuries to the property, waives his right to recover for the damages, if any he had.</p> <p>Appeal — Review—Harmless Error — Instructions. In an action for damages to an auto truck struck by a street car, prejudicial error cannot be predicated upon an instruction that the defendant must entrust the operation of its cars to men of experience and ability, where there was no issue thereon; since the jury would not treat that as an issuable fact.</p> <p>Street Railroads — Collision—Duties of Motorman — Instructions. In an action for injuries to an auto truck, struck by a street car, it is not error to instruct that the motorman must use every reasonable effort and all means at hand to avoid colliding with another vehicle and to have the car under control so that he may stop it promptly, when coupled with other instructions to the effect that he had the right to assume that the auto would get off the track and was not required to stop until the danger was imminent.</p> <p>Appeal — Review—Verdict. A verdict for damages to an auto truck, which allowed apparently unreasonable damages for depreciation, will not be set aside on appeal as excessive where there was evidence to sustain it and no contradictory evidence.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered October 14, 1915, in favor of the plaintiff, upon findings of the court and the report of a referee, in an action for an accounting.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered April 24, 1915, upon a trial and conviction of grand larceny.</p>

<p>Municipal Corporations — Use of Streets — Automobiles — License — Statutes—Proviso—Construction. A proviso attached to an act not being a part of the enacting words, but a restraint upon or exception to some part of it, the proviso to the act relating to permits for others than street railways etc., for the operation of motor vehicles for hire in “a city of the first class,” Rem. Code, § 5562-37, to the effect that the act shall include interurban railways transporting passengers for hire in any motor propelled vehicle except street cars “along any street, road or highway in the state,” does not have the effect of enlarging the act to cover motor vehicles operated by private individuals for hire on highways outside the limits of cities of the first class.</p> <p>Same — Use of Streets — Automobiles—Licenses—Bonds—Liability — Statutes. Under Rem. Code, §§ 5562-37, 5562-38, requiring a permit and bond for the operation of motor vehicles for hire in cities of the first class, liability on their bond for injuries received due to negligent operation is limited to injuries which occur within the limits of such city, in view of the dominant purpose of the act to regulate only operation in cities of the first class and to require no permits |or cars operating outside of such limits.</p>

<p>Appeal — Review—Presumption—-Exclusion of Evidence. Where an attempt to identify an exhibit failed and, upon objection, it was excluded and not given to the jury as evidence, it will be presumed that the jury did not consider it for any purpose.</p> <p>Master and Servant — Appliances—Negligence—Necessity—Res Ipsa Loquitur — Burden of Proof. As between master and servant, proof of the breaking of the drawbar pin on a locomotive coupling without any known cause does not impute a defective condition due to the negligence of the master, upon the principle of res ipsa loquitur, but the burden is upon the servant to prove the master’s negligence unless the circumstances were so unusual or so under the control of the company that the accident could not well have happened except through negligence on the part of the company.</p> <p>Same — Appliances—Defects — Res Ipsa Loquitur — Evidence— Sufficiency. In such a case the principle of res ipsa loquitur does not apply, and the evidence is insufficient to sustain a recovery in favor of a fireman on a switch engine who was tripped and fell when the drawbar pin coupling the tender to the engine jumped up through the floor of the tender, where it appears that such pins must have some play and ordinarily jump up and fall back into place, that the pin in question had worked properly up to one-half hour before the accident when it had twice jumped up and had been driven back with force, indicating a defective condition in the pin or socket, that no one had had previous notice of the defect and there was no want of proper inspection; since there was no proof that the condition could have been discovered by inspection, and it may have simply jumped up at the instant of the accident in the ordinary way without any negligence attributable to the company.</p> <p>Fullerton, J., dissents.</p>

<p>Executors and Administrators — Claims — Presentation — Evidence — Sufficiency. The evidence sustains a finding that a claim was duly presented to an executrix as required by Rem. Code, § 1479, where it appears that a claim duly verified was mailed to and received by the executrix.</p> <p>Mechanics’ Liens — Waiver—Contract. A provision in a contract for cutting wood that the contractor shall pay all bills for labor, etc., and prevent any liens being filed against the wood, does not waive the contractor’s right to file a lien for a balance due him, but is merely an agreement to prevent liens by others.</p> <p>Same — Foreclosure—Personal Judgment. In an action to foreclose a contractor’s lien for cutting wood, in which a portion of the claim is found to be lienable, the court has jurisdiction to render a personal judgment for the balance due on the contract.</p> <p>Trial — Jury Trial — Waiver. A jury trial, before entry of a personal judgment in an action to foreclose a lien for cutting wood, is waived by failing to make objection below prior to entry of final judgment.</p> <p>Executors and Administrators — Actions—Foreclosure of Lien —Condition Precedent — Claims. No action can be maintained to foreclose a laborer’s lien for cutting wood under a contract entered into with the deceased during his lifetime, whether the contract was performed wholly or in part after his death, where the claim was not presented to his executor or administrator for allowance or rejection.</p> <p>Executors and Administrators — Actions—Conditions Precedent —Claims—Parties Interested — Foreclosure of Lien for Benefit of Laborers. Where a contractor for cutting wood filed a claim against the executrix of the owner’s estate for the whole sum due under the contract, including unpaid sums due to his laborers, and prosecuted an action assuming the attitude that the laborers were entitled to participate in the benefits thereof, his claim against the estate, although not sufficient to support independent actions by the laborers to foreclose their individual liens, is sufficient to support a personal judgment in favor of the contractor, in which the laborers may be allowed to participate by including the amount due them for their work, without costs of suit in their favor.</p>

<p>Pleading — Bill or Particulars. Where the specific damages are set forth with exactness, a bill of particulars cannot be required, since its function is not to set forth the cause of action.</p> <p>Pleading — Material Variance — Damages. Where the complaint in a civil action for rape specifically sets forth the damages claimed with all the exactness of a bill of particulars, it is error to admit, over the objection of the plaintiff, evidence of other injuries received in the assault such as severe injuries to the arm and displacement of the womb not alleged in the complaint.</p> <p>Appeal — Review—Pleading—Amendment to Conform to Proof. Trial amendments to the complaint will not be considered as made where evidence extending the issues was admitted over objection, no trial amendment was requested, and it cannot be fairly said that the theory of the trial was acquiesced in by the complaining party.</p> <p>Same — Review—Pleadings—Continuance. In such a case, it is necessary to apply for a continuance only after the amendment is made, in view of Rem. Code, § 258, requiring a plain, concise statement of the facts.</p> <p>Same — Review—Pleadings—Harmless Error. The admission of evidence extending the issues is not prejudicial where the only possible effect of the evidence was to augment the damages and no claim was made that the verdict was excessive.</p> <p>Appeal — Review—Objections Not Raised — New Trial. The objection that the verdict was excessive cannot be raised for the first time on appeal.</p> <p>Evidence — Admission—Offer to Compromise. In a civil action for rape, evidence is admissible that, when plaintiff charged the defendant with the paternity of her child and demanded a settlement, he did not deny it, and is not subject to the objection that it touches an offer to'compromise, when the defendant did not offer to settle.</p> <p>Rape — Civil Liability — Damages—Issues—Paternity of Child— Evidence — Admissibility. In a civil action for rape in which damages are claimed on account of the alleged pregnancy of the plaintiff, the paternity of the child is directly in issue and evidence is admissible tending to shovr that the plaintiff had had criminal relations with any other person than the defendant at about the time that the child must have been conceived.</p> <p>Same. In such a case, a question, on cross-examination of the plaintiff as to whether she had had intercourse with any other man must be limited as to time.</p> <p>Appeal — Review—Trial—Harmless Ebbob. In a civil action for rape in which the paternity of a child is in issue, it is prejudicial error for counsel to remark on the child’s resemblance to the defendant, and for the court, on objection, to state that the “baby has been in evidence for the past few days;” but the error is cured where no exceptions were taken and defendant had invited it by testifying that it resembled another man, and had acquiesced in its presence in court.</p> <p>Rape — Civil Liability — Evidence — Admissibility — Exhibits. Upon an issue as to the paternity of a baby, in an action for rape, the baby cannot be made an exhibit, and its resemblance to its alleged father is too indistinct and uncertain to have any probative force.</p> <p>Same — Civil Liability — Defense—Incontinence. In a civil action for rape, evidence of incontinence with other men is not admissible.</p> <p>Appeal — Review—Evidence—Harmless Error. Error in the admission of acts of incontinence by plaintiff, suing for damages for rape, is harmless where it was offered only upon the measure of damages and there was no claim that the damages were excessive.</p> <p>Trial — Misconduct of Court — Fair Trial. In a civil action for rape, defendant’s constitutional right to a fair trial is infringed, where the court suggested the calling of the public prosecutor when one of the defendant’s witnesses was testifying as to his own improper conduct with plaintiff, and it is immaterial that no exceptions were taken, since a requested instruction to disregard such comment might not have removed the effect.</p>

<p>Municipal Cobpobations — Defective Streets — Proximate Cause —Contributory Negligence — Question for Jury. In an action for personal injuries sustained in a fall when plaintiff stepped from a bus to the pavement, the fact of stepping upon a defective iron grating in the pavement, which was the proximate cause of the accident, is not left to speculation or conjecture, hut is properly a question for the jury, where it appears that the grating was between the bus and the sidewalk, that it was broken and covered with trash, that the plaintiff stepped on something that gave way and caught her foot, and caused her to fall upon the edge of the sidewalk.</p> <p>Same — Defective Streets — City's Notice of Defect — Evidence. There is sufficient evidence that the city had notice of a defect in an iron grating in a pavement, where it appears that the grating was broken and out of repair in June, and that city employees cleaned it nearly every day until November, and there was no evidence that it had been changed.</p> <p>Witnesses — Competency. A witness is competent to testify that she had noticed a broken iron grating at a certain place some months before, although she could not identify the particular grating offered in evidence, where she said it looked the same and she was satisfied it was the same grating.</p> <p>Municipal Cobpobations — Defective Streets — Contributory Negligence — Question for Jury. The contributory negligence of the plaintiff in stepping from a jitney bus onto a defective iron grating in the pavement is a question for the jury, where it appears that the grating was between the bus and the sidewalk, that it was covered with trash, and the plaintiff could not see the defect.</p>

<p>Trial — Issues—Law or Equity — Jury Trial. In an action in ejectment to recover parts of a vacated street that had been in controversy in a previous action, equitable issues are presented which make it proper to discharge the jury and try the case as an action to establish boundaries, under Rem. Code, § 947, where it appears that the parties are adjoining landowners, that, in the former action to recover possession of the strip of land, the verdict and judgment for a recovery of possession did not define the center of the street constituting the boundary line, which was still in dispute.</p> <p>Ejectment — -Trial—Verdict—Sufficiency. In an action of ejectment' between adjoining landowners, a general verdict merely finding for the plaintiff is defective in that it does not comply with Rem. Code, § 795, requiring the jury, if their verdict be for the plaintiff, to find that he is entitled to possession of the property described in the complaint, and the nature and duration of his estate.</p> <p>Judgment^-Res Adjudicata — Ejectment • — - Matters Concluded. In an action of ejectment between adjoining landowners, judgment upon a defective verdict merely finding for the plaintiff, is not res adjudicata or a bar to a second action to establish the lost boundary line upon the ground, under Rem. Code, § 795, where the former judgment was merely to the effect that the plaintiff recover possession of the premises, which were not described with sufficient’ accuracy to enable possession to be delivered without reference to matters outside the judgment.</p> <p>Appeal — Review—Trial De Novo. Where an action was erroneously dismissed at the conclusion of the plaintiff’s case on a challenge to the sufficiency of the evidence, there cannot he a trial cLe novo on appeal, hut the case must be sent back for a new trial.</p> <p>Boundaries — Lost Corners — Evidence—Sufficiency. In an action to establish a lost boundary line, evidence to the effect that the defendant set his fences seventeen feet beyond the line indicated by stakes of the original survey, some of which were still Standing, is sufficient to make out a prima facie case.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered March 6, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for fraud.</p>

<p>Pines — Disposition—Statutes—Construction. The act of 1909, Rem. Code, § 4606, providing that “except as otherwise provided by law,” all fines imposed for breaches of the penal statutes shall be credited to the current state school fund, supersedes all prior statutes covering the same subject-matter;, since otherwise there would be nothing left upon which the section could operate.</p> <p>Statutes — Title and Subjects — Schools. The establishment and maintenance of the public school system are sufficiently correlated to be embraced in one act; hence the provision in the school code, which is entitled an act for the establishment and maintenance of the public school system, that fines imposed for breaches of the penal statutes shall be applied to the support of the schools, does not violate Const., art. 2, § 19, providing that no bill shall embrace more than one subject and that shall be expressed in the title.</p> <p>Holcomb, J., dissents.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered August 16, 1916, upon findings in favor of the plaintiff, in an action to recover a contribution to the accident fund provided for by the industrial insurance act, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Albertson, J., entered January 27, 1916,. upon granting a nonsuit, dismissing an action for fraud, tried to the court and a jury.</p>

<p>Eminent Domain — Purposes—Streets — Termini — Legislative Question. Condemnation for a public street cannot be objected to on the ground that the street terminates at a privately owned pier, since the location, route and termini are purely legislative questions beyond the control of the court.</p> <p>Same — By City — Decision to Condemn — Finality. The decision of the legislative body of a city to condemn property, in a proper case, is final and cannot be reviewed by the court.</p> <p>Same — -Authority—Purposes — “Bridges,” “Viaducts” and “Approaches” — Statutes. A city having power to construct bridges and viaducts under Rem. & Bal. Code, § 7507, and to take and damage property for bridges and approaches under Id., § 7768, it may condemn the right to impose upon a street, already permanently improved, an overhead crossing reached by an inclined plane, extending partly over the street and partly over the sidewalk; since the same may properly be called either a bridge or a viaduct and the inclined plane is an “approach.”</p>

<p>Appeal from a judgment of the superior court for Whitman county, McCroskey, J., entered May 14, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action on promissory notes.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Edward H. Wright, J., entered February 1, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a collision with an automobile.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Linn, J., entered April 8, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Pleading — Complaint—Designation of Action. Where the facts stated in a complaint entitled the plaintiff to relief, it is immaterial by what name the action was called.</p> <p>Physicians and Surgeons — Privileged Communications — Liability. A physician is not liable for disclosing confidential communications by testifying on the witness stand, if the testimony complained of was admissible in the case in which it was given and was relevant and pertinent to the issues; nor if compelled to give the testimony by rulings of the court.</p> <p>Same — Pleading—Complaint. In such a case, a complaint for damages is demurrable where it fails to negative the prima facie presumption that the testimony was privileged by alleging that the statements complained of were not admissible and were not relevant or pertinent to the issues; or where it shows that the testimony was given in response to questions in obedience to rulings of the court.</p>

, entered August 10, 1915, upon findings in favor of the plaintiffs, in an action for an accounting, tried to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered April 10, 1916, upon sustaining a demurrer to the petition, dismissing proceedings for the levying of a supplemental assessment upon property within a drainage district.</p>

, entered January 15, 1916, upon findings in favor of the plaintiff, in an action for damages sustained in an automobile collision, tried to the court.

<p>Railroads — Contractor’s Bond — Liens—-Filing — Statutes. Until filed in tbe county auditor’s office, there is no statutory liability upon a bond given by a railroad company to relieve its property from liens for labor and materials furnished to a contractor, as provided in Rem. Code, § 1129; and after tbe bond is taken and filed, tbe filing of a lien for labor or material furnished is unnecessary.</p> <p>Same — Contractor’s Bond — Actions—Privity. There being no privity between the parties, laborers and materialmen cannot maintain an action at common law upon a statutory bond given by a railroad company to relieve its property from liens for labor and material, as provided in Rem. Code, § 1129, the bond not having taken effect as a statutory bond because not filed as required by law (overruling in part, on rehearing, Id., 90 Wash. 227).</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered October 8, 1915, upon a trial and conviction of conducting a gambling game.</p>

, entered October 19, 1915, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by reason of a defective sidewalk.

, entered February 4, 1916, upon findings in favor of the plaintiffs, in an action on a redelivery bond, tried to the court.

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

<p>Criminal Law — Appeal — Review — Verdict. Where there was substantial evidence to support every material fact necessary to sustain a verdict of guilty, and the trial court has refused to interfere, the verdict is conclusive on appeal.</p> <p>Homicide — Self-Defense—Evidence—Question for Jury. Upon a plea of self-defense, in a prosecution for homicide in which there was evidence tending to show that the accused intended to take a child from the custody of another, at any hazard, armed himself with a revolver, entered the house without warning, and the killing thereafter ensued, it was proper to leave to the jury the question whether the accused was unlawfully in the house where the affray occurred or whether his going there was lawful.</p> <p>Criminal Law — Appeal—Instructions—Reasonable Doubt. An instruction upon the subject of reasonable doubt to the effect that the jury could take into consideration the strong probabilities of the case, while subject to criticism standing alone, is not prejudicial when, taken with its context, it could not have misled the jury.</p> <p>Same — -Trial—Instructions. It is proper to instruct the jury to disregard any statements made by counsel concerning the evidence, unless they found the statement to be "borne out by the evidence.</p>

<p>Master and Servant — Workmen’s Compensation — Award — Discretion — Review—Appeal — Statutes — Construction. Where the industrial insurance commission made an award of $225 for partial disability on account of an injury to an arm, the amount of an award for permanent disability by loss of an arm being limited to $1,500, an appeal seeking the maximum amount for total disability, involves only a question of the commission’s discretion touching the amount of the award, under Rem. Code, § 6604-20, which provides that matters resting in the discretion of the department shall not be subject to review; notwithstanding such section further provides for an appeal, “in so far as such decision rests upon questions' of fact,” with the further provision that the “calling of a jury shall rest in the discretion of the court;” hence the decision will not be reviewed on appeal except for abuse of discretion.</p>

, entered November 26, 1915, upon findings in favor of the defendants, in an action to recover possession of property levied upon under execution, tried to the court.

<p>Railroads — Construction—Contracts—“Grubbino.” “Grubbing” in a railroad construction contract means taking out the roots, stumps and obstacles imbedded in the surface of the ground along the right of way, except where not required on account of cuts and fills; and where, under the contract, the cuts referred to were to be of more than three feet, and the fills of more than two feet, the contractor cannot be allowed for work on stations already cleared in which the cuts and fills exceeded the stipulated requirements; since there was no grubbing to be done on such stations.</p> <p>Same — Construction —■ Contracts —■ Decision or Arbitrator. A provision in the contract for grubbing railroad right of way that the chief engineer of the company shall be the final arbiter of all disputes under the contract, is conclusive and binding unless the decision of the arbitrator has been made arbitrarily and capriciously.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered February 9, 1916, upon findings in favor of the defendants, in an action on promissory notes, tried to the court.</p>

<p>Principal and Agent — Agency—Evidence—Sufficiency. The evidence supports a finding that a bank officer acted as agent of the purchaser of timber in making an inspection, where, in response to a request for advice, he wired that he would visit the coast, investigate the matter, and report fully.</p> <p>Sales — By Sample — Conditions—Waiver. Where a contract for poles did not specify the quality, but a sample was submitted and accepted, there was a waiver of any claim that the poles were to be of any different quality than the sample.</p> <p>Frauds, Statute of — Sales—Writing—Parol Waiver of Stipulation. A stipulation as to the quality of poles sold by written contract may be waived by an oral agreement to accept poles corresponding with a sample furnished, without bringing the sale within the statute of frauds.</p> <p>Sales — For Resale — Breach — Measure of Damages — Market Price. Upon breach of a contract for the sale of poles, which the vendor knew were purchased for resale, at Chicago, the measure of damages is the loss of profits, at the market price in that market, and the price received is some evidence of that market price.</p> <p>Same — Bbeach—Damages—Waives. Loss of profits on breach of a contract for tbe sale of poles purchased for resale, is not waived by a request to ship the poles after the time specified for delivery, where the request was made in an attempt to minimize the damages and in the hope of still effecting the resale.</p>

<p>Appeal — Review—Harmless Error — Pleadings. Error cannot be assigned upon the denial of a motion to make a complaint more definite and certain, where defendant answered over and no prejudice was shown.</p> <p>Pleading — Issues and Proof — Variance. In an action for personal injuries sustained in a fall on a disembarking stairway, it is not a material variance that the complaint alleged a brass nosing on the edge of the step had been suffered to become loose, and the proof showed that it was insufficiently secured.</p> <p>Witnesses — Responsiveness—Conversations. Where a cross-examiner asks for a conversation had at a certain time, he cannot assign error in refusing to strike an answer which was in part responsive and relevant, although not what he sought to elicit.</p> <p>Carriers — Defect in Slips — Evidence—Other Accidents. In an action for personal injuries sustained by a fall upon a defective disembarking stairway, it is competent to show that prior thereto others had tripped on the same defect.</p> <p>Trial — Instructions — Issue — -General Negligence. Under a complaint charging specific acts of negligence, a charge to the jury on the subject of negligence is not open to the objection that it was too general, when it was as specific as the evidence was required to be.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered August 16, 1916, in favor of the plaintiffs, in consolidated actions for writs of mandamus to compel the issuance of city warrants upon allowed claims, after a trial on the merits to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered August 16, 1915, upon findings in favor of the plaintiff, in an action to recover the value of property lost through the negligence of a bailee.</p>

, entered January 3, 1916, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.

, entered March 29, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger through a collision between a taxicab and a street car.

, entered April 11, 1916, upon findings in favor of the defendants, dismissing an action to foreclose a mechanics’ lien, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered March 22, 1916, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered November 24, 1915, in favor of the plaintiffs, modifying an assessment on appeal from the order of the city council confirming the roll.

<p>Appeal from a judgment of the superior court for Okanogan county, Pendergast, J., entered February 5, 1916, upon findings in favor of the plaintiff, upon sustaining a demurrer to defendant’s complaint in intervention, in an action" to foreclose mortgages, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered January 81, 1916, upon a trial and conviction of assault in the second degree.</p>

Cross-appeals from a judgment of the superior court for Walla Walla county, Mills, J., entered March 24, 1916, in favor of the intervener, in garnishment proceedings, tried to the court.

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered April 18, 1916, upon the verdict of a jury awarding damages in condemnation proceedings. •</p>

, entered February 29, 1916, upon findings in favor of the plaintiffs, on appeal from the decision of the city council confirming an assessment for a public improvement, tried to the court.

<p>Prostitution — Nuisances—Abatement —Actions — Defenses— Temporary Cessation. Under the “Red Light” law, Rem. Code, § 946-2, which provides for an action of abatement, “whenever a nuisance exists,” and Id., § 946-8, authorizing a fine against any owner of a building used for prohibited purposes whenever a permanent injunction issues in such action, it is not a defense to the action that the property was not being used for the purposes of prostitution at the time the action of abatement was commenced nor since, where it appears that the owners knew it was being so used and made no effort to abate the nuisance after arrests had been made, nor until after the commencement of the abatement action; a temporary cessation of unlawful practices not being sufficient where it is presumable that they would have been continued but for the abatement action.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered February 25, 1916, upon findings in favor of a legatee, in an action by a trustee for the construction of a will, tried to the court:</p>

, entered October 29, 1915, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.

, entered April 5, 1916, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries sustained by the driver of an automobile.

<p>Appeal from a judgment of the superior court for Clarke county, Jackson, J., entered November 10, 1915, upon the verdict of a jury rendered in favor of the defendant, in an action on contract.</p>

, entered July 29, 1915, upon findings in favor of the defendants, in an action to recover the possession of mining claims, tried to the court.

<p>Bills and Notes — Extension op Time — Consideration—Evidence —Sufficiency. Where the plaintiff was the holder of notes given in payment of the purchase price of mining machinery, and was also the owner of a water right leased to the maker of the notes, who had paid $1,600 on the notes to plaintiff’s agent and was unable to proceed in his operations without the water, the maker’s consent to divert $600 of such payment and apply the same to payment of the lease of the water is sufficient consideration for plaintiff’s extension of time for payment of the balance due on the notes for the period of one year.</p> <p>Principal and Surety — Release—Extension of Time. An agreement between the payee and the principal maker of a note to extend the time of payment for one year, releases the surety on the note, if the agreement is made upon a valuable consideration and without the consent of the surety.</p> <p>Statutes — Pleading—Amendment—Sufficiency. The general allegation as to the laws of Alaska on a certain subject is sufficiently amended at the trial by an amended complaint setting forth the specific statutes relied upon and alleging that it was the only regulation on the question in the statutes of Alaska.</p> <p>Same — Evidence—Foreign Laws. A printed copy of the statutes of Alaska and the evidence of an attorney that the volume contained all the statutes in that territory on the subject in question, is sufficient prima facie proof of the laws of Alaska on the subject.</p> <p>Evidence — Experts—Attorneys—Qualification—Discretion. An attorney testifying as to the laws of Alaska, as shown by a code, sufficiently qualifies as an expert where he testified that he had practiced law in that territory for three years and was so practicing when the code took effect; the qualification of an expert being largely within the discretion of the trial court.</p> <p>Pleading — Trial—Amendment—Discretion. Where a complaint alleges generally the effect of the laws of a foreign state, it is discretionary to allow a trial amendment setting forth the specific law relied upon.</p> <p>Appeal — Preservation of Grounds — Instructions — Requests. Error cannot be assigned upon the failure of an instruction to define the phrase “valuable consideration,” in the absence of any request therefor, an exception alone not being sufficient to take advantage of an omission.</p>

<p>Municipal Corporations — Streets — Accidents at Crossings— Contributory Negligence — Question fob Jury. The driver of a team, struck by an automobile at a street intersection in the residential district of a city, is not guilty of contributory negligence, as. a matter of law, where there was evidence to the effect that he was driving at a speed of six or seven miles an hour, in a direction which, under a traffic ordinance, gave him the right of way, and was struck by an automobile exceeding the speed limit.</p> <p>Release — Consideration — Voluntary Payments and Services. In an action for personal injuries sustained by plaintiff when struck by defendant’s automobile, a release signed by the plaintiff, in consideration of the payment of plaintiff’s hospital bills and bills for repairing his wagon and for defendant’s services as a physician in attending the plaintiff, is inadmissible upon a plea of accord and satisfaction, where it appears that payment of the hospital bills and the services of the physician were voluntary, which, with payment for the property, constituted no consideration for a release of damages for the personal injuries.</p> <p>Evidence — -Admissions-—Consideration for Release. In an action for personal injuries, upon a plea of satisfaction and accord, a release which was without consideration would not be admissible because it contained a statement that the accident was purely an accident for which the defendant was in no way responsible.</p> <p>Appeal — Review — Harmless Error — Evidence. Rejection of written evidence of an admission against interest is harmless error, where there was oral evidence of such admission, without contradiction by the plaintiff.</p> <p>Appeal — Review—Waiver of Error. The withdrawal of a motion for a new trial on the ground that there was no ground upon which the verdict should be vacated and that there were no errors in law or otherwise, tends to sustain the judgment.</p>

, entered July 3, 1916, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.

<p>Death — Wrongful Death — Statutes—Construction. Rem. Code, § 183 giving a right of action for wrongful death, being in derogation of the common law, is to be strictly construed in determining the persons • entitled to sue, but liberally in applying the statute in their favor.</p> <p>Same — Wrongful Death — Actions — Persons Entitled — Statutes — Construction. No right of action for wrongful death is given in favor of surviving children for the death of their mother, by Rem. Code, § 183, which provides that the widow or children of a man killed in a duel shall have a right of action therefor; that, when the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action therefor; that, if the deceased leave no widow or issue, then his parents, sisters or minor brothers dependent upon him for support may maintain the action; that, when the death is caused by falling through an opening in any sidewalk etc., his heirs or personal representatives, or if deceased leaves no widow or issue, then his parents, sisters or minor brothers dependent upon him for support, may maintain the action; and this, notwithstanding Id., § 148 providing that in the construction of the code, words importing the masculine gender may be extended to females also; since in each case, the words “man,” “person” or “deceased” is used in contradistinction to the word “widow” and other descriptive words indicating an intent to compensate for the loss of the husband upon the theory of dependence upon him for support, without any provision for the death of wife or mother; and since the courts cannot read the word “widower” for “widow.”</p> <p>Statutes — Construction—Adopted Laws. In adopting the law of another state, changes in wording and phrasing will be presumed to have been made deliberately and with a purpose to limit, qualify, or enlarge the adopted law.</p> <p>Same — Legislative Construction. A law, reenacted with amendments, after it has received a judicial construction, must be considered as adopting such construction.</p> <p>Death — Wrongful Death — Statutes—Code—Adoption. The code of 1881, which includes the wrongful death act rewritten as an independent enactment, having been duly passed as appears from the council and house journals although no mention thereof was made in the session laws of 1881, it cannot be argued that the various subdivisions of the wrongful death act are separate enactments erroneously arranged or combined by the compiler of the code as one act.</p>

Appeals from judgments of the superior court for King county, Prater, J., entered January 18, 1916, upon the ver- ' diet of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in an automobile, and upon a verdict in favor of defendant Gassar upon a cross-complaint, after a trial on the merits.

, entered March 3, 1916, in favor of the plaintiff, notwithstanding the verdict of a jury of no damages to either party, in an action for damages resulting from an automobile collision.

<p>Municipal Corporations — Streets — Accidents at Crossings— Automobile Collision — Proximate Cause — Concurrent Negligence ■ — Question por Jury. As there may be more than one proximate cause for an accident, and where the independent negligence of different persons concurs, all may be liable; and as proximate cause is a mixed question of law and fact and for the jury unless the facts are undisputed and the inferences plain, it is error to decide, as a matter of law, that the act of defendant C. in colliding with plaintiff’s automobile was the proximate cause of the accident, and that defendant laundry company would therefore not be liable, where it appeared from the complaint and statement of counsel that defendant C., who was approaching a street intersection at an unlawful speed, was compelled to turn suddenly into plaintiff’s car when the laundry company’s auto truck, also going at an excessive speed, unlawfully cut the corner at the street intersection and got in the path of the car of defendant C.; since what a reasonably prudent person will do in a sudden emergency is always a question for the jury, unless reasonable minds cannot differ thereon.</p> <p>Same. In such a case, the probability of an injury need not be so obvious as to be necessarily anticipated by the wrongdoer, who is liable for any injuries proximately resulting if his act was one that in the exercise of ordinary care he ought to have anticipated was apt to result in injury to others, although he could not have anticipated the particular injury.</p>

<p>Eminent Domain — Property Previously Devoted to Public Use —Public Necessity — Evidence—Sufficiency. The property and riparian rights held and used by a public service corporation for the purpose of furnishing water to a city, and necessary for its present and future use, cannot be condemned by another public service corporation to be devoted to the same use to which the company already in business intends to devote it, where the public interest does not require it; and public necessity therefor is not sufficiently shown, where it appears that the first company is a going concern, is furnishing an adequate supply of water to the city, and will very soon require an increase and it is its intention to use its property not now actually devoted to a public use, for that purpose, holding the same in reasonable anticipation of future needs.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered October 19, 1915, upon findings in favor of the defendant, in an action for conversion, tried to the court.</p>

, entered June 8, 1916, upon findings in favor of the plaintiff, in an action by a lessee to recover a deposit paid the lessor to be applied as rent upon premises leased for saloon purposes, tried to the court.

Cross-appeals from a judgment of the superior court for King county, Smith, J., entered February 7, 1916, upon findings in favor of the defendant, in an action for divorce, tried to the court.

<p>Appeal from a judgment of tbe superior court for Grant county, Steiner, J., entered October 29, 1915, upon findings in favor of tbe defendants, in an action for equitable relief, tried to tbe court.</p>