Volume 96 — Washington Reports

<p>Application filed in the supreme court February 16, 1917, for a writ of mandamus to compel the superior court for Adams county, Truax, J., to issue a commission for the taking of a deposition by means of oral interrogatories.</p>

, entered July 13, 1916, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to recover taxes paid.

<p>Trusts — Resulting Trusts — Parol Evidence. The fact that the purchase price of property was paid by an ancestor and the title taken in the name of one of her children, establishes a resulting trust and may be shown by parol.</p> <p>Partition — Issues—Trial oe Title. Under Rem. Code, § 844, the court has power and is required, in an action for partition, to try and determine the title to the property in issue.</p> <p>Trusts — Resulting Trusts — Evidence — Sueeicienct. In an action between heirs for a partition, a finding that lands, the title to which stood in various heirs, belonged to the estate under a resulting trust is sustained, although the oral evidence was conflicting and uncertain, where the claims of the heirs were inconsistent with writings and agreements made by them in the administration proceedings, indicating that their claim to the property was an afterthought.</p> <p>Partition — Between Heibs — Lien oe Mortgage. Where an heir, holding lands under a resulting trust in favor of the ancestor, mortgaged the same for his own benefit, his interest in the estate is chargeable with the amount of the mortgage, and a purchaser from him takes subject thereto.</p> <p>Appeal — 'Decision — Admitted Error. An unauthorized correction of an admitted error after appeal taken, does not prevent the supreme court from affirming the judgment as modified.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered August 11, 1916, upon sustaining a demurrer to the complaint, dismissing an action for breach of warranty.</p>

<p>Damages — Measure op Damages — Delay—Rental Value — Contemplated Profits. The measure of damages for delay in the performance of a contract to improve property, sold to the plaintiff, by the construction of sewers and paving, is the reasonable rental value of the property during the period of the delay; and plaintiff cannot recover for the loss of rents of a contemplated building which he did not construct on account of the delay, as the same is too remote and speculative.</p>

Application filed in the supreme court February 20, 1917, for a writ of prohibition to the superior court for Yakima county, Holden, J., to prohibit the signing of an order confirming a judicial sale.

Application filed in the supreme court January 25, 1917, for a writ of certiorari to review an order of the superior court for Clarke county, Back, J., denying a motion for change of venue.

, entered June 26, 1916, granting a new trial on the ground of inadequate damages, after the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in a jitney bus.

, entered June 22,1916, upon sustaining a demurrer to the complaint, dismissing an action to establish a claim against an estate.

<p>Appeal — Review—Findings. Findings on conflicting evidence will not be disturbed on appeal where the evidence does not preponderate against them.</p>

<p>Brokers — Commissions — Actions — Failure of Proof. Failure of proof to support a broker’s claims for commissions cannot be predicated upon the fact that the sales were made in the broker’s own name, where there was a special reason therefor and the principal knew that the sales were being so made.</p> <p>Same — Commissions — Actions — Defenses — Evidence. Where brokers made sales in good faith in compliance with their contract, and the principal failed to consummate the sale for reasons wholly apart from the financial ability of the purchasers, the brokers are not called upon to prove the financial ability on the part of the purchasers.</p> <p>Evidence — To Vary Written Contract — Explaining Trade Term. Where a broker’s sales contract refers to the quantity as so many “cars,” it is competent to prove that cars of merchandise of that character means to the trade approximately 30,000 pounds.</p> <p>Pleading — Bill of Particulars — Defects — Admissibility of Evidence. WThere a bill of particulars fully informed counsel of every fact, although it was defective and the account rendered was not as full as demanded, it is not error to admit evidence of the account, in the absence of any request for a further account, under Rem. Code, § 284, providing that items of account not stated in the bill shall be excluded and that in case the account is defective the court may order a further account.</p>

<p>Fixtures — Mortgagor and Mortgagee of Chattels. The giving of a chattel mortgage upon pipe to be used for the purpose of irrigation implies that it shall retain its personal character; and as between the parties, it does not become a fixture by embedding and installing it in the land.</p> <p>Chattel Mortgages — Filing — Notice — Fixtures. Under Rem. Code, § 3662, providing that every chattel mortgage filed and indexed shall be full and sufficient notice to all the world, a subsequent occupant of desert land under an adverse entry has notice that irrigation pipe, embedded and installed in the land and included in a chattel mortgage, was chattel property subject to the lien of the mortgage and not part of the real estate.</p> <p>Public Lands — Desert Land Entry — Improvements—Proof. It is not fraudulent for a desert land entryman to include in his three years proof the cost of irrigating pipe which he had purchased and installed subject to a chattel mortgage lien.</p> <p>Chattel Mortgages — Foreclosure — Fixtures — Removal. Upon the foreclosure of a chattel mortgage upon irrigating pipe embedded and installed in the land, which has passed into the possession of third persons, with notice, it is not unlawful for the decree to enforce entry upon the land to remove the pipe, where it can be done without permanent injury to the real estate.</p>

<p>Insurance — Rebates—-Validity—Statutes. Where a life insurance solicitor agreed that his commissions for procuring life insurance should be his compensation for procuring for the assured a real estate mortgage loan from the insurance company, he induced the insurance by a rebate of the premium to the extent of his commissions, in violation of Rem. Code, § 6059-180, which provides that no insurance agent shall pay, as inducement to insurance, any rebate of premium payable on the policy or any special favor, or other valuable consideration or inducement whatsoever not specified in the policy.</p> <p>Same — Contract lor Rebates — Validity. A life insurance solicitor’s contract calling for a rebate in violation of Rem. Code, § 6059-180, is void, notwithstanding the statute does not declare such contracts void; in view of the fact that it clearly prohibits such contracts, and of § 6059-191, providing that any insurance agent willfully violating any of the provisions of the article shall be fined and have his license revoked.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered April 8, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by an automobile.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered May 19, 1916, upon findings in favor of the defendant, in an action on promissory notes, tried to the court.</p>

<p>Appeal from' a judgment of the superior court for King county, Jurey, J., entered March 14, 1916, in favor of the defendants, in an action for conversion, tried to the court.</p>

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

<p>Deeds — Delivery—Presumption Prom Possession — Husband and Wife. Where husband and wife simultaneously executed deeds of ■property to each other, with intent to pass the title to the survivor only upon the death of one of them, there is no presumption of delivery from the fact of possession of the deed, but actual delivery with intent to make the deed presently operative must be shown in order to pass title, as against heirs.</p> <p>Equity — Laches — Statute of Limitations. The doctrine of equitable laches will not defeat an action by heirs to set aside a deed which was intended to defeat the statute of wills, and void for want of delivery, where the action was brought within three years after the heirs became of age and within the statutory period prescribed by Rem. Code, § 158.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered April 6, 1916, dismissing an action for equitable relief, tried to the court.</p>

<p>Contempt — County Officer — Purging—Expiration of Term. A contempt by a county officer for failing to comply with a mandate directing the issuance of county warrants is purged by the expiration of his term of office, thereby ending the controversy.</p> <p>Mandamus — Against County Officers — Expiration of Term. A judgment in mandamus compelling a county auditor to issue county warrants is not affected by the expiration of his term of office and the consequent termination of contempt proceedings against him.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Back, J., entered July 10, 1916, in favor of the plaintiff, in an action to construe a will, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered April 18,1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered March 27, 1916, upon findings in favor of the defendants, setting aside the probate of a will, after a contest tried to the court.

<p>Appeal — Review—Findings. Findings upon conflicting evidence will not lie reversed on appeal wliere the evidence does not preponderate against tliem.</p>

, entered September 27, 1915, upon sustaining a demurrer to the complaint, dismissing an action for fraud, tried to the court.

<p>Principal and Surety — Liability — Release — Representations. A surety company, giving a bond to insure the completion of a building upon property sold by the principal to a purchaser under an agreement that the principal would complete the building, is not released by the fact that the represented consideration for the property was not to be paid for all in cash, where no representations were made as to the method of payments, and the surety had no lien against the purchase price and was in no way interested therein.</p>

Wright, J., entered July 25, 1916, upon sustaining a demurrer to the complaint, dismissing an action to quiet title, tried to the court.

<p>Appeal from a judgment of the superior court for King county, French, J., entered July 28, 1916, upon findings in favor of the plaintiffs, in an action of replevin, tried to the court.</p>

<p>Husband and Wife — Community Property — Liability—Torts of Husband — Actions—Parties. The wife, as a member of the community, is a proper party defendant to an action for damages through an assault committed by the husband in taking possession of an automobile which was community property with the purpose that his act should inure to the benefit of the community.</p> <p>Appeal — Review—Requested Instructions. It is not error to refuse reguested instructions which were too indefinite to be of value when applied to the facts and did not sufficiently define the acts in controversy.</p> <p>Damages — Excessive Verdict — Personal Injuries. A recovery of $2,000 for injuries sustained in an assault in violently seizing plaintiff and preventing her from taking the front seat in an automobile are excessive, and should be reduced to the sum of $750, where it appears that plaintiff was not seriously injured by the acts of the defendant, and that any injuries sustained were due largely to her own negligent conduct in aggravating a condition of which she was cognizant.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered March 21,1916, upon sustaining a demurrer to the complaint, dismissing an action for equitable relief.</p>

Application filed in the supreme court, February 5, 1917, for a writ of mandamus to compel the secretary of state to strike from the records the name of a corporation and cancel the license issued thereto.

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered March 18, 1916, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered May 13, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for alienation of affections.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered June 1, 1916, upon the verdict of a jury rendered in favor of .the plaintiff, in an action on contract.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Tallman, J., entered April 18, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malpractice.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered February 8,1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Bailment — Contract of Hire — Construction. In a contract for the rental of road construction equipment, the lessee cannot recover for a shortage of 4,000 feet of pipe and 1,000 feet of rails, described in the contract as “approximately” for 1 mile of railroad and 2 miles of pipe line, “now left upon the ground, as it was seen and inspected by the parties.”</p> <p>Accord and Satisfaction — Part Payment — Acceptance; Where payments were tendered to a bank, acting as agent for the creditor, in full satisfaction of the claim, and the bank refused to accept •them as payments in full, except subject to the approval of the creditor, who refused to approve, there was no recognition of the payments as payments in full, and the creditor is not estopped from recovering the balance notwithstanding there was no offer to return the payments, which the bank had credited upon an indebtedness due it; since the debtor could have refused to make the payments except upon condition.</p> <p>Bailment — Contract—Fraud—Inspection. A contract for hiring road construction equipment cannot be avoided for fraud in misrepresenting tbe condition of tbe equipment, where tbe lessee inspected it and tbe contract plainly indicates that be was to take it as it stood, regardless of condition.</p> <p>Constitutional Law — Obligation oe Contract — Bonds — Attorney’s Fees. Tbe act providing, in actions upon surety bonds, for tbe allowance of attorney’s fees in addition to all other costs, cannot apply to bonds executed prior to tbe passing of tbe act, since as to existing contracts, it is an additional burden without tbe power of tbe legislature to impose.</p>

, entered February 4, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Adverse Possession- — Hostile Possession — Claim oe Title — Notice. Where a blanket mortgage upon an addition was foreclosed in 1895, inadvertently including a lot sold and in the possession of the vendee, who continued in possession and in 1898 reasserted ownership, with notice to the then owner that his possession was adverse, his subsequent continued possession and payment of all taxes from that time will ripen into a title by adverse possession.</p>

, entered April 11, 1916, denying a petition for the distribution of the property of an estate, after a hearing before the court.

<p>Divorce — Cruelty—Evidence—Sufficiency. It is error to deny a divorce to a wife on the ground of cruelty, because she had been guilty of improper conduct, where it appears that the husband accused her of infidelity, attacked her and punished her severely, and when driven from the place by his employer, she refused to accompany him, the court exonerating her of any criminal conduct; since she was justified in abandoning him.</p>

, entered December 29, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in a jitney bus.

<p>Courts — Federal Question — National Bank Act. The interpretation of the national bank act presents a Federal question.</p> <p>Banks — National Banks — Powers—Liability Imposed by State Laws. The national bank act constitutes the measure of authority of national banks, which have only such powers as are specifically granted or are incidental to carrying on the business of banking; and the state cannot impose any liability by adding any powers to those granted or fairly implied in the Federal act.</p> <p>Banks — National Banks — Special Deposits — Receipt of Wills foe Safe-keeping. 5 Fed. Stat. Ann. § 5136, subd. 7, of the national bank act, authorizing national banks to carry on “the business of banking ... by receiving deposits . . .” etc., and § 5228, authorizing them in certain contingencies, “to deliver special deposits” must be construed together, and mean that the deposits must be such as are fairly embraced within the “business of banking.”</p> <p>Same. The receipt of a will for safe-keeping by a national bank is not the receiving of “a special deposit” fairly embraced within the meaning of the national bank act which impliedly authorizes national banks to receive special deposits.</p> <p>Customs and Usages — Violation of Law. No rights can spring from the custom of national banks to receive wills for safe-keeping in violation of the powers granted by the national bank act.</p> <p>Wills — Custody—Liability fob Failure to Deliver — National Banks. A letter from a national bank acknowledging receipt of a will sent for safe-keeping and delivery upon the death of the sender, stating that the will had been filed for safe-keeping, and the failure of the bank to deliver the will according to directions, creates no liability ex contractu or ex delicto.</p> <p>Limitation of Actions — Action on Penalty — Wills—Custody—■ Failure to Deliver — Statutes. A right of action under Rem. Code, §§ 1289 and 1292, for damages against any person having custody of a will, for failure to deliver the will for probate within thirty days after the death of the testator, is an action upon the statute for a penalty, under Id., § 159, subd. 6, which must be commenced within three years after the cause of action arose; and is too late if not commenced until more than three years after the last act in the administration of the testator’s estate was performed.</p>

<p>Homicide — 'Self-Defense—Instructions—Duty to Retreat — Issues. Where the deceased, feloniously assailing the accused in a public road, was only fifteen or twenty feet away, pointing a pistol directly at accused and threatening to take his life, there obviously was no opportunity to retreat, and it is error to instruct upon the duty of the accused to retreat if possible without increasing his own danger; since the accused had the right to stand his ground and take life, if in good reason apparently necessary to preserve his own life or protect himself from bodily harm.</p> <p>Same — Defense of Another — Statutes. Rem. & Bal. Code, § 2406, providing that the homicide is justifiable when committed in the lawful defense of another person is but declaratory of the common law.</p> <p>Same — Defense of Another — Assisting Aggressor — Self-Defense — Instructions. Where the accused went to the defense of his attendant at a dance, shooting her assailant in the legs to save her life, the assailant’s father had no right to come to the defense of his son and advance upon the accused with a pistol threatening his life, and in doing so he becomes the assailant, who may, if necessary, be killed in self-defense; and an instruction upon the essential element of self-defense should omit the necessity to retreat where there was obviously no opportunity to retreat.</p> <p>Same — Self-Defense—Aggressor—Evidence—Threats—Admissibility. Upon an issue as to who was the aggressor and whether the accused had reason to believe that he and his companion were in imminent danger of losing life or suffering great bodily harm, it is error to exclude evidence of a threat, made by one of the assailants immediately before, that he would go home and get his father and “clean out the whole God damn bunch” which threat was immediately executed by the return of the two and a joint attack upon members of the party, in which the father lost his life.</p> <p>Same — Self-Defense—Evidence—Prior Hostility — Materiality. Where the accused, in defending his companion from a felonious assault, wounded one of the assailants, and killed the other in self-defense when the attack was turned upon him, in a prosecution for the homicide, evidence of a prior difficulty and hostile feeling between the accused and the wounded assailant is inadmissible as immaterial.</p>

<p>Mortgages — Release Induced by Fraud — Reinstatement—Priority. Where a first mortgage is released and a new one taken as a substitute, upon the false representation of the mortgagor that there are no intervening liens, and in ignorance of a second mortgage duly recorded, equity will, in the absence of laches, restore the lien of the first mortgage and give it priority, where the holder of the second mortgage is not thereby prejudiced.</p>

, entered Septembér 22, 1915, upon findings in favor of lien claimants, in an action to foreclose the lien, tried to the court.

<p>Appeal — Record—Review—Memorandum Opinion. In an action at law, a memorandum opinion of the trial judge cannot be regarded as a finding of fact and conclusion of law, as Rem. Code, § 367, requires formal findings to which exceptions may be taken.</p>

, entered May 19, 1916, upon findings in favor of the defendants, dismissing an action for rescission, tried to the court.

<p>Master and Servant — Contract op Employment — 'Duration— Termination. The employment of plaintiff was for the duration of the job, and not from day to day, where he was to secure men to work for defendant on a salvage job, under his own foreman and timekeeper, and to receive for his services in securing and overseeing the men ten cents a day for each man while so employed, it appearing that the joh would require 260 to 300 men for fifty days, and that plaintiff was put to considerable expense in securing the men; hence defendant could not arbitrarily terminate the contract before completion of the job and refuse to pay for the men secured by plaintiff while they remained on the job.</p>

, entered April 27, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a fire insurance policy.

, entered December 24, 1915, upon granting a nonsuit, dismissing an action for personal injuries sustained by a section hand through the derailment of a hand car.

county, Brawley, J., entered August 9, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for trespass to property.

<p>Estoppel — Person Making Damage Possible. Where the owner of mortgaged real estate executed a renewal note and mortgage to a loan company and, without taking up the original, placed it in the hands of the company’s secretary, who sold it to an innocent purchaser and misappropriated the proceeds, the loss must fall upon the mortgagor as the one of two or more innocent parties who placed it in the power of a third person to occasion the loss.</p> <p>Principal and Agent — Authority to Collect Mortgage. A mortgage loan company that took and sold mortgages to its clients is not the agent of a buyer with authority to collect the principal, where it did not have possession of the note, from the mere fact that it collected interest from time to time, nor because the note recited that it was payable at its office.</p> <p>Same. In such a case, the company is not authorized to collect the principal by a letter inclosing the last interest coupon, assuming that the mortgage “had been closed,” and directing remittance by New York draft, where the company had been advised that the note would be sent to a certain bank for collection, which was done.</p> <p>Same. Authority to collect a mortgage when due does not authorize the agent to collect prior to the due date.</p> <p>Estoppel — Person Making Loss Possible. Where the owner of mortgaged real estate executed a renewal mortgage to the loan company before the original became due, and delivered it to the secretary without taking up the original, which had been assigned, and the secretary misappropriated the proceeds and failed to credit the payment to the account of the assignee of the original, the mortgagor must, as against the assignee, sustain the loss as the one of two or more innocent parties who placed it in the power of a third person to occasion the loss.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered March 16, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Bonald, J., entered April 10, 1916, upon findings in favor of the plaintiffs, in an action to vacate a tax deed, tried to the court.</p>

<p>Eminent Domain — Damages—Property. The damages to telephone and telegraph lines, located in a highway under a franchise, which necessarily results from improving the highway without negligence, is not a taking or damaging of private property without just compensation first made as required by Const., art. 1, § 16; and neither the county nor contractor will be liable therefor.</p>

, entered July 28, 1916, upon findings in favor of the defendant, in an action to determine conflicting claims to a deposit of earnest money forfeited under an option contract, tried to the court.

, entered May 10, 1916, upon findings in favor of the plaintiff, in an action of forcible entry and detainer, tried to the court.

<p>Eminent Domain — Value oe Property — Evidence — Assessment ' Rolls — Admissibility. Upon an issue as to the value of property condemned by a city, assessment rolls are not admissible against the city as an admission against interest because the city took part in making up the rolls by representation on the board of equalization.</p> <p>Evidence — Judicial Notice — Assessed Tax Values. The courts take judicial notice that assessed values for taxation are relative rather than actual and that the board of equalization does not correct the valuations as a whole.</p> <p>Eminent Domain — Value oe Property — Evidence — Assessed Value — Admissibility. In condemnation proceedings by a city, assessment rolls for general taxation are not independent evidence of the market value of the property where that is the sole issue.</p> <p>Same — Value oe Land — Evidence—Admissibility. The value of land taken for a street cannot be augmented by showing the ownership of adjacent tide land tracts giving the tract physically invaded a water outlet, where the tracts were separated by a street and were not used in common and could only be so used by using the intervening street.</p> <p>Appeal — Review—Discretion—Comparative Values. Upon an issue as to the value of land taken, the admission of evidence of the price paid for lands in the same vicinity some distance away is largely a matter of discretion, to be reviewed only for abuse.</p> <p>Eminent Domain — Value oe Property — Evidence — Appraisements — Admissibility. In condemnation proceedings, the valuation of appraisers fixing the amount of the inheritance tax is not competent evidence of the market value; since it is res inter alios acta.</p> <p>Same — Valué of Property — Elements of Damage — Street Assessments. In proceedings to condemn for a street land that had already been assessed for an abutting improved street, the amount of the former assessment cannot be shown as a specific element of damage, where the work was done by the city and not by the owner, although the owner is entitled to show all the facts and circumstances enhancing the market value of the land; e. g., that it was upon a paved street and that the segregated part would be left without any paved street.</p> <p>Same. In such a case, the probable cost of a new grade and new paving is not recoverable, since such cost cannot be imposed upon land except as it is benefited, and because it is too uncertain and remote.</p> <p>Appeal — Review—Harmless Error — Evidence. Upon an issue as to the value of lands for manufacturing purposes it is harmless error to exclude a map showing the location with reference to a railroad, where the facts were shown by other evidence and the map had slight probative value.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Abel, J., entered June 6, 1916, upon findings in favor of the defendants, denying the claims of creditors of the estate of a decedent, tried to the court.</p>

, entered November 30, 1915, upon findings in favor of the plaintiff, in an action on an official bond, tried to the court.

<p>Appeal — Recoed—Statement of Pacts — Ceetificate. Where the statement of facts is certified to contain only the plaintiff’s evidence, it must be presumed that it does not contain all the material facts, and there can be no review of the evidence on appeal, the only question being whether the findings support the judgment.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered July 19, 1916, in favor of the plaintiffs, in an action to construe a will, tried to the court.</p>

Appeals from a judgment of the superior court for Stevens county, Frater, J., entered May 19, 1916, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for malpractice.

, entered June 17, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor through contact with an electric power line.

, entered April 13, 1916, upon the verdict of a jury .rendered in favor of the defendant by direction of the court, in an action to recover property fraudulently concealed pending an action for divorce.

<p>Negligence — Imputed Negligence — Driver op Vehicle. The contributory negligence of the driver of a horse is not to be attributed to one riding in the buggy with him as a guest or companion, where the latter was not in a position to exercise any authority or control over the driver.</p> <p>Judgment — Several Dependants — Inconsistent Verdicts. In consolidated actions for personal injuries brought by the driver of a horse and his companion in the buggy, in which the jury found that the latter did not possess any authority or control over the driver, a verdict against the driver on the ground of his contributory negligence is not, as a matter of law, inconsistent with a verdict in favor of the driver’s companion.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Easterday, J., entered May 20, 1916, upon a trial and conviction of violating a city ordinance.</p>

, entered July 10, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through collision with an automobile.

<p>Adverse Possession — Claim of Right — Lost Corner. Where a boundary line was fixed by adverse possession under a claim of right, it is immaterial whether the government corner was a lost corner or not.</p> <p>Boundaries — Establishment — Survey. The survey of a disputed boundary line by a deputy county surveyor does not establish the line as an official survey, under Rem. Code, § 3984, which provides for the relocation of lost corners upon ten days’ notice to interested parties, where the provisions of the statute were not followed and the parties in interest did not participate; since that section does not purport to be for the establishment of lost corners or lines which are in dispute, the method of procedure in such case being prescribed by § 947 et seq.</p> <p>Same — Establishment — Agreement — Evidence — Sufficiency. The burden of proving that a disputed boundary line was fixed by agreement is not sustained where, by the agreement, the plaintiff was to secure the consent of a tenant and there was no evidence that such consent was obtained.</p> <p>Estoppel — Prejudice to Party. Defendant’s acquiescence for two or three years in plaintiff’s removal of a disputed boundary line, until termination of a pending case to determine the true line, does not estop the defendant from asserting title by adverse possession, where the plaintiffs were not permitted to do anything to their disadvantage after their removal of the fence.</p> <p>Adverse Possession — Disputed Boundary — Evidence—Sufficiency. Title by adverse possession to a disputed boundary is established by evidence that defendant claimed to have set a stone at the true corner in 1885, and in 1900 cleared the land up to that line, and for more than ten years maintained a fence upon the line, openly and notoriously in opposition to the wishes of the adjoining owner.</p>

<p>Bills and Notes — Oral Assumption by Third Person — Liability —Statutes. Under Rem. Code, § 3409, providing that no person is liable on an instrument whose signature does not appear thereon, the purchaser of mortgaged property who orally assumed and agreed to pay the mortgage debt is not liable to a holder of a note who waives the mortgage and brings an action at law upon the note.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered November 28, 1916, upon a trial and conviction of violating a city ordinance.</p>

<p>Taxation — Whaling Vessels — Situs — Home Poet. Whaling vessels, owned by a corporation of another state, not engaged as common carriers, acquire an actual situs and are taxable at their home port in this state, where it appears that they are there fitted out and equipped each year for the only voyages in which they engage, which occupy less than half the year, and to which they return at the end of the season and are moored for the remainder of the year.</p> <p>Appeal — Review—Stipulated Facts — Conclusions. A statement in stipulated facts that whaling vessels are only temporarily in the state of Washington will be disregarded as a mere conclusion or deduction, where the actual facts are shown.</p>

Appeal by plaintiff from a judgment of the superior court for Ferry county, Pendergast, J., entered March 22, 1916, in favor of the plaintiff, in an action for equitable relief, tried to the court.

, entered March 24, and April 7, 1916, quashing service-of summons, and granting a nonsuit, in an action for personal injuries sustained by an employee through, an explosion of dynamite.

<p>Appeal from a judgment of the superior court for Okanogan county, Albertson, J., entered March 2, 1916, in favor of the plaintiff, in an action to reform a judgment, tried to the court.</p>

, entered April 21, 1916, in favor of the plaintiff, after a trial before the court on an agreed statement of facts, in a contest for the possession of real property during the period allowed for redemption from foreclosure sale.

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered June £6, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

<p>Actions — Joinder op Causes — Contracts — Same Transaction. Plaintiff may unite two causes of action, one upon a demand note, and the other upon a note secured by mortgage, both of which arose out of the same transaction, under Rem. Code, § 296, authorizing the uniting of several causes of action when they arise out of contract, or from the same transaction.</p> <p>Usury — Evidence—Admissibility. In an action to recover on notes given for the purchase price of property and advances for improvements thereon, evidence as to the value of the property has no bearing upon the defense of usury.</p> <p>Same — Evidence—Sufficiency. In such an action, the fact that the property was sold upon a long time mortgage with a moderate rate of interest for $5*,000 more than it was previously purchased for, would not indicate that the inclusion of the $5,000 in the mortgage was colorable and usurious as a cloak or cover for a bonus or forbearance.</p>

Oswald, judge pro tempore, entered March 22, 1916, upon findings in favor of the plaintiff, in an action on contract, tried to the court.

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered January 24, 1916, upon the pleadings, dismissing an action in tort.</p>

<p>Contracts — Effect op Illegality — Violation op Statute. Where plaintiff, an alien, was employed to come to this country to serve defendant from month to month at a salary of $300 per month, in violation of 23 U. S. St. at L. p. 332, a subsequent agreement, made at the end of the first month, whereby it was agreed that plaintiff should “continue to perform said services for defendant at said monthly salary of $300” is so connected with the illegal contract as to render it illegal and void; the test being as to whether plaintiff is required to rely on the illegal contract.</p>

<p>Appeal — Recobd—Statement of Pacts — Sufficiency. A statement of facts certified to contain “a portion” of the proceedings, material facts and evidence, without reciting that it contains all the facts, etc., is insufficient, and will be struck out on motion.</p>

<p>Appeal from an order of the superior court for Skagit county, Brawley, J., entered March 20, 1916, directing the payment to a trustee of a fund in court as property of a bankrupt.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered May 15, 1916, upon the verdict of a jury awarding damages in condemnation proceedings.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered December 8, 1915, in favor of the defendant, confirming the report of referees establishing a division of real estate by partition.</p>

<p>Appeal from a judgment of the superior court for Douglas county, Steiner, J., entered April 20, 1916, upon findings in favor of the mortgagees, upon issues raised by defendant’s cross-complaint, in an action to foreclose a mortgage, tried to the court.</p>

<p>Carriers — Of Goods — Injury to Licensee — Authority of Driver —Presumptions—Liability. The presumption is that the driver of a truck, not intended for passengers and ordered by plaintiff for the transportation of goods, has no authority to permit plaintiff to ride, and the owner is not liable to plaintiff for injuries received while riding on the truck by permission of the driver, without authority, in the absence of evidence of gross negligence or of wantonly causing plaintiff’s injury.</p> <p>Same — Invitation to Ride — Authority—Custom—Evidence. Evidence that one of defendant’s drivers of horse drawn trucks allowed others to ride upon the seat, is not evidence of a custom to allow persons to ride in the back part of defendant’s automobile truck.</p>

<p>Appeal from a judgment of the superior court for Klickitat county, Back, J., entered November 28, 1915, upon a trial and conviction of grand larceny.</p>

, entered-April 8,1916, upon findings in favor of the plaintiff, in an action on a fire insurance policy, tried to the court.

, entered February 27, 1915, upon findings in favor of the plaintiff, in an action on promissory notes and to foreclose a chattel mortgage, tried to the court.

<p>Libel and Slander — Actionable Words — Violation of Food Law —Statutes. A news publication that plaintiff owned a quantity of cheese which was destroyed as unfit for human consumption, is not libelous per se as charging a violation of Rem. Code, § 5453, making it a misdemeanor to sell, or have in possession with intent to sell, adulterated food; since possession with intent to sell is an essential element of the offense.</p> <p>Same — Actionable Words — Injury to Business. It is not libelous per se as tending to injure the business of a dealer to publish as a news item that it owned part of a quantity of cheese, seized and destroyed by the state as unfit for food, there being no charge that the dealer had violated any statute or intended to sell the cheese.</p> <p>Same — Complaint—Special Damages. Where words are not libelous per se, it is necessary to allege special damages.</p>

Application filed in the supreme court February 26, 1917, for a writ of certiorari to review orders of the superior court for Kitsap county, Jurey, J., entered February 24, 1917, in an unlawful detainer action.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered May 10, 1916, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

, entered June 13, 1916, upon findings in favor of the defendants, in an action for specific performance, tried to the court.

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered June 13, 1916, upon findings in favor of the defendants, in an action for specific performance, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Edward H. Wright, J., entered April 1, 1916, upon findings in favor of the plaintiff, in an action for breach of covenants in a deed, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Grant county, Kauffman, J., entered August 16, 1915, in favor of the defendants, dismissing an action to quiet title, tried to the court.</p>

, entered November 29, 1915, upon the verdict of a jury rendered in favor of the defendant, in an action for damages to property.

<p>Corporations — Capital Stock — Payment— Record — Conclusiveness — Evidence—Parol Evidence. The record, in the minute book of a corporation showing the cancellation of part of the shares issued to three subscribers seven years previously, for the stated reason that such stock had not been paid for, and the purchase of the same shares by the same subscribers to be delivered to them “as soon as paid for,” is sufficiently ambiguous to admit of parol evidence to the efEect that the stock had in fact been paid for, and that the cancellation and resale was a clumsy attempt to release the right to vote the stock in the interest of a new subscriber to increased capital who was taking over the control of the company.</p> <p>Same — Stock Subscriptions — Actions by Receiver — Prejudice to Creditors. Unless it affirmatively appears that existing creditors were prejudiced by a record in the minute book indicating that stock subscriptions were unpaid, a receiver seeking to collect the subscriptions has no greater rights than the corporation.</p> <p>Same — Stock Subscriptions — Actions — Defenses — Record — Estoppel. A record in the minute book indicating that stock subscriptions were unpaid, does not estop the stockholders from showing that the stock had actually been paid for, as against creditors who could not have been prejudiced in extending a credit upon the faith of stock subscriptions which they would likewise have extended upon the faith of representations that the stock was paid up.</p> <p>Same — Capital Stock — Reduction—Cancellation of Stock — Validity — Trust Fund — Existing Creditors. Under the trust fund doctrine, the cancellation of a stock subscription agreement does not release a solvent stockholder from his liability to pay for the stock because, with the consent of all the stockholders, the contract had been “complied with to the best ability of the parties,” as against creditors of the corporation who had theretofore opened a line of credit and a course of dealing which was subsequently continued without actual notice of the attempted cancellation impairing the capital, since they must be regarded as “existing” creditors.</p> <p>Same — Stock Subscriptions —■ Actions — Defenses — Cancellation of Stock — Validity. It is no defense to a receiver’s action for an unpaid stock subscription that the stock was cancelled in consideration of money advanced and the indorsement of a note for the corporation; since that would only make the stockholder a creditor with the right to share with other creditors.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 2Í2, 1916, upon the verdiet of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through a collision with electric light wires in a city street.</p>

Cross-appeals from a judgment of the superior court for King county, Tallman, J., entered April 28, 1916, upon findings favorable to the defendant, in an action to modify a. decree of divorce, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered April 12, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a seaman through falling down the hatchway of a ship.</p>

<p>Appeal from a judgment of the superior court for Whitman county, McCroskey, J., entered June 30, 1916, upon sustaining a demurrer to the complaint, dismissing an action for specific performance.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered June 6, 1916, upon findings in favor of the plaintiff, in an action upon a life insurance policy, tried to the court.</p>

, entered March 9, 1916, upon findings in favor of the defendants, dismissing garnishment proceedings, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 20, 1916, upon the verdict of a jury awarding damages in condemnation proceedings.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, X, entered April 7, 1916, 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 King county, Frater, J., entered November 21, 1916, upon granting a nonsuit, dismissing an action to enjoin the collection of a tax.</p>

Appeals from judgments of the superior court for Pierce county, Card, J., entered March 22, 1911, in favor of the defendants, dismissing consolidated actions in ejectment.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered July 3, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malpractice.</p>