Volume 98 — Washington Reports

<p>Application filed in the supreme court June 28, 1917, for a writ of supersedeas.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered May 2, 1916, upon findings in favor of the plaintiff, in an action of replevin, tried to the court.</p>

<p>Landlord and Tenant—Saloon Lease—Termination—Effect of Prohibition Law. A lease of a building “for the purpose of conducting a saloon,” stipulating that the lessee is to sign the lessor’s consent to applications for sales, and conduct the saloon so as not to injure the reputation of the premises, and in a lawful manner, is terminated by Rem. Code, § 6262-5, prohibiting the sale of intoxicating liquors after January 1, 1916; as it would be unlawful to enforce its provisions.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered January 13, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action of replevin.</p>

Motion filed in the supreme court March 19, 1917, for an order extending the time for filing and serving a statement of facts.

Ci’oss-appeals from a judgment of the superior court for King county, Tallman, J., entered March 31, 1916, upon findings in favor of the plaintiff, in garnishment proceedings, after a trial upon an agreed statement of facts.

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered August 24, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered June 8, 1916, upon findings in favor of the plaintiff, in an action to recover over the amount paid on a judgment for injuries resulting from a defective sidewalk.</p>

<p>Dismissal and Nonsuit—Voluntary—Defendant’s Affirmative Relief. In an action to foreclose tax liens, a mortgagee, joined as a defendant claiming some interest or lien on the property, may set up a superior title and pray affirmative relief quieting 'title, thereby preventing the plaintiff from insisting upon a voluntary dismissal of his action.</p> <p>Judgment—Res Judicata—Matters Concluded. A judgment setting aside one of six several tax certificates of delinquency upon segregated portions of mortgaged premises, and declaring the mortgage a superior lien, is not res adjudicata or a bar to an action to foreclose the remaining five certificates, where the former foreclosure was held bad for want of proper service, and it was not a question of the priority of the mortgage over the tax, but one as to whether the tax proceeding was sufficient to carry the fee.</p> <p>Taxation—Lien—Foreclosure — Personal Service — Necessity. The foreclosure of a tax delinquency certificate is a proceeding in rem. which the statute requires to be with notice to the party named in the certificate as owner regardless of his interest at the time of suit; and if he is known to the plaintiff as a resident subject to personal service, service by publication as upon a nonresident is void and cannot be sustained as a proceeding against unknown owners.</p> <p>Same — Lien — Foreclosure — Parties — Rights oe Mortgagee. Where a tax title claimant seeks foreclosure against the owner and a mortgagee, and fails to sustain his proceedings against the owner, he cannot assert the tax title as against the mortgagee claiming through the owner as mortgagor.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered July 29, 1916, in favor of the defendant, in an action on a promissory note, tried to the court.</p>

<p>Infants—Contracts—Repudiation. A minor, before coming of age, may repudiate his contract with attorneys to prosecute an action for personal injuries, and his application for the appointment of a general guardian and the making of an independent settlement sufficiently indicates his intention to repudiate the contract.</p> <p>Same—Contracts—Necessaries. Such contract cannot be sustained on the theory that it was for necessaries, as the minor is liable only for the reasonable value of necessaries furnished.</p> <p>Same-—Contracts—Repudiation — Effect. The disaffirmance of such a contract by a minor makes it void ab initio, and avoids assignments of rights thereunder.</p> <p>Same—Guardian Ad Litem—Authority to Contract for Legal Service. A guardian a& litem of a minor has no authority to contract to pay attorneys fifty per cent of the recovery for personal injuries sustained by the minor, the amount of their compensation being a question to be determined by the court.</p>

, entered February 27, 1917, in favor of the defendant, dismissing upon the pleadings an action .for breach of marriage promise, tried to the court.

<p>Homicide—Evidence—Or Other Crimes—To Show Intent—Admissibility—First Degree Assault. Tinder Rem. Code, § 2413, making both, the assault and the intent to kill, material in a prosecution for assault in the first degree by shooting and wounding a police officer, it is admissible to prove the defendant’s conduct immediately prior to the shooting, when he entered a saloon in a drunken condition and committed other offenses, as bearing upon the intent to kill, and the same is not objectionable in that it includes evidence of other crimes.</p> <p>Homicide—Assault With Intent to Kill—Evidence of Intent— Sufficiency. In a prosecution for assault with intent to kill by shooting and wounding a police officer, that the defendant shot with intent to kill is sufficiently established by evidence of the commission of other offenses by the defendant immediately prior to the shooting, when he entered a saloon in a drunken condition, together with the facts of the shooting detailed to the jury, several shots having been fired, one taking effect in the face and one in the shoulder of the officer.</p> <p>Homicide—Information—Definiteness. An information charging the shooting of one M. with intent to kill, with a thirty-two special Winchester rifle, substantially in the language of the statute, is sufficiently definite, without stating the manner in which the rifle was used.</p> <p>Criminal Law—Sentence—Statutes. Under Rem. Code, § 2413, fixing the punishment for first degree assault as imprisonment in the state penitentiary “for not less than five years,” and § 2281, providing that, where no maximum is prescribed by law, the court shall fix the maximum term of imprisonment, a sentence for a “period of nine years” is error, and will be remanded for a sentence for a minimum period fixed by the court, of not less than five years, and for not more than the number of years fixed by the court as a maximum.</p>

<p>Corporations—Stock—Sale—Payment Out of Assets — Rights of Creditors. Where one of two equal stockholders in a trading cor.poration sold his stock to the other, taking his pay in groceries constituting the assets of the corporation, he is liable, in an action brought by an assignee for the benefit of the corporation creditors, to the extent of the value of the assets which he received.</p>

<p>Principal and Agent—Powers of Agent—Evidence—Sufficiency —Estoppel. Where an agent, authorized to inspect and fix a price for lumber to be purchased subject to approval, was sent to the mill of a customer to buy lumber, and finding the same in operation by lien claimants in possession, negotiated with them a cash sale, waiving his principal’s claim for a set-off upon the account of the former owner of the mill without reporting such fact to his principal, it will be held that he acted within the scope of his apparent authority in agreeing to pay cash; the principle that the one of two innoceht parties whose negligence occasioned a loss, must be charged with it, operating, if applicable at all, against the buyer and not the seller.</p> <p>Bankruptcy—Actions by Trustee—Title to Property Subject to Liens—Relief. A trustee in bankruptcy may maintain an action for the contract price of lumber manufactured and sold by lien-holding employees in possession and operating the mill with the bankrupt’s consent, since the title to the lumber was in the bankrupt, and the distribution of the fund and protection of the lien-holders are matters peculiarly within the province of the bankruptcy court.</p>

<p>Judgment—Vacation — Petition — Sufficiency. A petition for the vacation of a judgment on account of mistake is demurrable when it fails to set forth the judgment as required by Rem. Code, § 467, and does not show when it was entered or that the petition was filed within one year; and where, even if filed"within one year, it fails to show when the mistake was discovered or that the petitioner proceeded with diligence within the year; in the absence of which it was not an abuse of discretion to deny relief.</p> <p>Judgment—On Motion — Conclusiveness — Petition to Vacate. Where a mistake in a judgment was cognizable by motion and appeal, and both were resorted to and failed of fruition, the matter is concluded, and a demurrer to a petition to vacate the judgment on account of the mistake is properly sustained as seeking relief from a matter once adjudicated.</p>

Application filed in the supreme court June 8, 1917, for a writ of mandamus to compel the superior court for King county, Smith, J., to sign a decree as directed on remand from the supreme court.

<p>Mortgages—Foreclosure—Accrual of Cause—Usurious Note— Effect. Where a mortgage note was usurious to the extent of but $116, which was insufficient to pay interest due according to the terms of the note, an action to foreclose the mortgage providing therefor in case of default in interest is not premature, in view of Rem. Code, § 6255, providing that the contract shall not be void on account of usurious interest, but that certain penalties shall be deducted in any action thereon if proof be made that more than the legal rate has been contracted for or reserved.</p> <p>Usury—Penalty—Amount — Deduction of “Accrued Interest.” Rem. Code, § 6255, providing that the plaintiff, in an action upon a usurious note, shall only recover the principal less the amount of interest accruing at the rate contracted for, and if interest be paid, less twice the amount paid and less accrued and unpaid interest, means accrued and unpaid interest up to the time of the judgment, and not for the full term of the note.</p> <p>Same—Judgment—Costs—On Execution. The statute denying costs to plaintiff in an action upon a usurious mortgage, does not refer to costs of execution after judgment, where it became defendants’ duty to satisfy the judgment and execution was necessary to enforce payment.</p>

<p>Evidence—Conclusion oe Witness—“Convent.” Upon an issue as to the manner of use of a building, the statement that it was used as a “convent” is not objectionable as a conclusion of the witness, but is to be given weight according to the knowledge of the witness.</p> <p>Covenants—Restrictive Use oe Property—Residence Purposes— “Convent.” A restrictive clause in a deed under which only a single detached residence could be built on the premises and could be used for “residence purposes only” is not shown to be violated by the use of a dwelling for residential purposes by twelve or fifteen women of a Catholic sisterhood, who wore a dark uniform, erected a small alter in the original living room, and had a priest conduct religious services every morning, and occasionally issued invitations to the “clothing of a novice” upon admitting a member; and it is not important that a witness testified that it was used as a “convent” and was so* styled in the telephone directory and the invitations issued (Ellis, C. J., Main, and Webster, JJ., dissenting).</p>

<p>Sales — Conditional Sales — Application oe Payments — Contract—Validity. A conditional sales contract may provide that the vendor may make applications of payments to an open account, which must be paid in addition to the purchase price as a condition precedent to the vesting of title, and in default of which forfeiture may be declared.</p> <p>Same—Contract—Conditions on Back—Validity. Conditions printed on the back of a conditional sales contract which declare that it is made subject thereto, are binding, in the absence of any inference of fraud or mistake, where the contract is in no sense obscure.</p>

<p>Banks and Banking—Deposits—Evidence—Sufficiency. A deposit by the N. bank in the S. bank, and the relation of debtor and creditor, is not shown by evidence that, in negotiating for the credit, officers of the S. bank signed two notes for $15,000, one of which was left with the N. bank, with collateral, under an agreement that the other note should be signed by other officers and sent to the N. bank, which was to hold the notes and collateral as security for a credit of $15,000, that such other note was not signed and returned and no credit slip was issued at that time nor afterwards when drafts were drawn therefor and payment refused by the N. bank, and the S. bank made no complaint when the drafts were refused.</p> <p>Same—Deposits—Offset of Note—Liability on Note of Tbustees. Where a note was given by trustees of a bank for and on its behalf as security for a deposit in another bank, the latter may, on insolvency of the former, offset the note, if past due, against the deposit; since the insolvent was liable on such note, though not given in its name.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered March 6, 1917, dismissing an action for a writ of mandamus, upon overruling a demurrer to the answer.</p>

, entered August 21, 1916, upon findings in favor of the plaintiffs, in an action on promissory notes, tried to the court.

<p>Mortgages—Lien and Priority—Future Advances — Mechanics’ Liens—Estopped. Where the agent of the mortgagee in a mortgage given for future advances informed contractors that he had the money in his possession to pay for the work and that they would he paid, the mortgagee is estopped to assert a lien prior to the contractors’ mechanics’ liens, as it is hound by the representations of its agent disbursing the money.</p> <p>Appeal—Review—Pleadings—Amendments. In an equity case, upon a trial de novo on appeal, insufficiency of the complaint is immaterial, as it will he deemed amended to conform to the proofs.</p>

<p>Appeal from a judgment of the superior court for Ska-mania county, Back, J., entered March 22, 1917, upon sustaining a demurrer to the complaint, dismissing an action to recover taxes paid.</p>

<p>Mechanics’ Liens—Contract for Extras—Furnished to Lessee —Evidence—Sufficiency. Where a subcontractor for electric wiring in a theater building was paid in full for the work contracted for by the principal contractor, he is not entitled to a mechanics’ lien for extras ordered by and furnished to a lessee with whom he contracted to do special stage wiring, and it is immaterial that the plans for such special wiring and extras were prepared by the architect of the building, who was in that matter acting as agent of the lessee; since neither the owner nor his agent contracted therefor.</p> <p>Same. In such a case, the fact that an officer of the owner ordered some of the extras is not controlling, where it appears that he was known to be an officer of the lessee also, and his testimony that he gave the orders for the lessee is uncontradicted.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered March 4, 1916, in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.</p>

<p>Mortgages — Possession of Homestead — During Redemption — “Judgment Debtor” — Subsequent Purchasers. A purchaser of mortgaged premises who did not assume, and was not liable upon, the mortgage debt, is not the “judgment debtor” within Rem. Code, § 602, providing that, if the premises are occupied as a homestead at the time of sale, the “judgment debtor” may “retain” possession during the period of redemption; in view of the evident purpose of the act (of 1899) to reverse the former policy of the superseded law (of 1897) giving such right to the judgment debtor “or those claiming by, through, or under him.”</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered May 11, 1916, upon the verdict of a jury rendered in favor of the defendants, in an action on contract.</p>

<p>Insurance—Unincorporated Associations — Actions — Policy— Conditions. The right to maintain an action against an unincorporated association of underwriters in name and its attorney in fact and two of its members, to secure an adjudication of the amount due on a fire insurance policy and payment thereof from funds of the association, is in no way restricted by terms in the policy providing that, to avoid a multiplicity of suits, no suit shall be brought against more than one of the underwriters at any time, final adjudication in which shall be decisive of similar claims against and binding upon other members, especially where there is no other action upon the policy pending against any of the members of the association.</p> <p>Same—Unincorporated Association—Actions—Judgment—Form and Effect. In such action, judgment is properly rendered against the association in name, where it and its attorney in fact answered on the merits, and the judgment may be satisfied from funds of the association on hand; and is conclusive upon all the members, where two of the members were parties to the suit, although it does not determine the amount each shall contribute.</p> <p>Appeal—Review—Harmless Error—Intervention. Errors in allowing an intervention and committed at the trial to the prejudice of appellant as against interveners, are not ground for a reversal of the judgment as against the plaintiff, where the court found against the interveners.</p>

<p>Appeal from a judgment of the superior court for Grant county, Steiner, J., entered July 10, 1916, upon findings in favor of the plaintiff, in an action to cancel a deed, tried to the court.</p>

Wright, J., entered October 18, 1916, in favor of the defendants, dismissing consolidated actions to set aside a deed on the ground of fraud, tried to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered May 20, 1916, upon a trial and conviction of removing and concealing property held under a conditional sales contract.</p>

, entered May 29, 1916, in favor of the defendants, dismissing an action to vacate a sale of corporate stock, tried to the court.

<p>Intoxicating Liquors—Unlawful Shipment—Seizure. A search and seizure proceeding against intoxicating liquors shipped into the state is a proceeding in rem, governed by the rules in civil procedure.</p> <p>Same—Unlawful Shipment—Duty of Carrier—Interstate Shipments. Under Rem. Code, § 6262-24, providing that the prohibition law shall not apply to shipments by common carriers in unbroken packages in continuous transit through this state, it is the duty of a common carrier to accept a shipment of liquor at Butte, Montana, for shipment to Alaska, unless it knew that the goods were intended to be diverted for delivery within the state of Washington under circumstances making them contraband.</p> <p>Same—Interstate . Shipments—Seizure ■— Burden of Proof. In proceedings to seize from a common carrier a shipment of liquor billed from Butte, Montana, to Alaska, and prima facie an interstate shipment, permitted by Rem. Code, § 6262-24, exempting such shipments from the application of the prohibition law, the burden was upon the state to show that the goods were contraband and not a bona fide interstate shipment, notwithstanding Id., § 6262-12, which casts the burden of proof upon any person claiming any interest, in the goods to show by competent evidence his property right therein, and that the articles were not used in violation of the act; as the later act was satisfied, so far as the carrier was concerned, by showing its contract of carriage and meeting the requirements of Id., § 6262-24.</p> <p>Same—Illegal Shipments—Evidence—Sufficiency. While it is a suspicious circumstance that an interstate shipment of liquor from Butte, Montana, to Alaska, was routed by an unusual route in care of an auto delivery company at M. in this state where there were no facilities for transshipping to a connecting carrier for transit to Alaska, the carrier would not be bound to deliver to an irresponsible delivery company, and was bound to perform its contract of carriage, if possible, and was therefore justified in notifying the consignor of the conditions at M. and in waiting for instructions for delivery to some steamer line for transit to Alaska; hence such fact is not sufficient to show that the carrier was in the unlawful possession or engaged in the unlawful carriage of liquors, or knowingly engaged in any illegal delivery of liquors within this state.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered March 17, 1917, upon a trial and conviction of violating the state-wide prohibition law.</p>

, entered May 6, 1916, granting a new trial, after the verdict of a jury rendered in favor of the plaintiff, in an action for fraud.

F. Wright, J., entered November 2, 1916, upon findings in favor of the plaintiff, in an action to enjoin the collection of taxes, tried to the court.

<p>Frauds, Statute of—Contract fob Saxe of Land—Memorandum —Description—Certainty. In a contract for the sale of land known as the “J. T. A. place,” tbe description is not sufficiently certain under tbe statute of frauds, to admit of parol testimony as to whether the place included a strip of land in dispute eight rods long and four rods wide not originally owned but subsequently acquired.</p> <p>Vendor and Purchaser—Contract—Intent. The minds of the parties never met in a sale of the “J. T. A. place” where there was a dispute as to what was included.</p> <p>Specific Performance — Powers of Court — Relief. Where the minds of the parties never met as to the exact description of lands intended to be included in a contract of sale, the courts cannot grant specific performance as to the portion not in dispute, nor resort to principles of equity to determine rights under the statute of frauds.</p> <p>Appeal—Review—Relief Not Sought Below. An offer by respondent to accede to claims made by appellant, made for the first time in the supreme court comes too late to obtain an appropriate decree that might have been entered.</p>

<p>Appeal from a judgment of the superior court for Asotin county, Miller, J., entered October 16, 1916, dismissing an action for equitable relief, after a trial on the merits before the court.</p>

Application filed in the supreme court May 2, 1917, for a writ of mandamus to compel the state auditor to issue a warrant in payment of the salary of a deputy inspector and supervisor of public offices.

, entered May 22, 1916, upon granting a nonsuit, dismissing an action for damages through the removal of lateral support.

Cross-appeals from a judgment of the superior court for King county, Smith, J., entered July 17, 1916, upon granting a nonsuit, dismissing an action for damages through the removal of lateral support.

<p>Appeal from a judgment of the superior court for Skagit county, Brawley, J., entered July 8, 1916, upon a trial and conviction of violating the state-wide prohibition law.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered November 18, 1916, upon a trial and conviction of violating the state-wide prohibition .law.</p>

<p>Appeal from a judgment of the superior court for King county, Charles F. Munday, judge pro tempore, entered July 7, 1916, approving the final account of an executrix, after a hearing upon objections before the court.</p>

<p>Contracts—Terms—Evidence of Agreement—Sufficiency. Under an oral contract pursuant to which plaintiff was to purchase war horses for defendant who had a contract with the French government for horses of three designated classes, the evidence shows that the agreement was that the horses should pass inspection by the French officers, where it appears that plaintiff knew that the horses were for the- French government and to be inspected by representatives of that government, there was evidence that he was informed that they were subject to such inspection and plaintiff awaited such inspection during a month’s delay and made no demand for acceptance without inspection and made no objection until after rejection by the French inspectors.</p>

<p>Counties—County Commissioners—Powers—Issuance of Bonds —Discretion—Bad Faith — Injunction. The issuance of county bonds for the construction of a courthouse and their sale will be enjoined as arbitrary, fraudulent and in bad faith, where It was all secretly arranged and put through at a meeting of the board by two of its members in collusion with bond buyers, without any publicity or opportunity for competitive bidding and at a higher rate of interest than the market conditions justified, no action having been taken to plan or build a courthouse or procure a site.</p>

, entered October 19, 1916, dismissing an action for an injunction, after a trial before the court upon an agreed statement of facts.

<p>Sales—Specific Chattels—Failure to Deliver—Destruction of Property. A sale of hay by correspondence was an executory contract for the sale of specific property, and not an undertaking to deliver a specific quantity, so that the seller would not be liable for failure to deliver where it was totally destroyed without his fault, where it appears that the amount sold was seven hundred tons at $18.50 per ton, that the subject-matter of the contract was hay grown in a certain valley owned by the seller and then in stack and was to be baled pursuant to particular instructions, and that the hay had been described to the buyer.</p>

<p>Landlord and Tenant—Lease—Assignment. Lessees of a hotel are not released by an assignment to a hotel company without the consent of the landlord, where there was no understanding or agreement that they executed the lease as nominal parties for the benefit of the hotel company organized to take over the lease.</p> <p>Same—Liability foe Rent—Teem. The provisions of a lease with reference to appraisements and readjustment every five years cannot be avoided by reason of the fact that the term of the lease extended beyond the life expectancy of the lessees.</p> <p>Same — Liability fob Rent — Assignment of Lease. Where a hotel company, to whom a lease had been assigned, was merely a name under which the lessees were operating, the lessees cannot escape liability merely because an appraisement of the lease was made at a time when the lease had been assigned, the landlord at all times having dealt only with the lessees.</p>

<p>Appeal—Statement oe Facts—Notice of Filing—Waiver. Rem. Code, § 389, providing that a copy of the proposed statement of facts shall be served on the adverse party and written notice of the filing thereof on any other party who. has appeared in the action, is not jurisdictional and may be waived.</p> <p>Same—Record—Opinion. An opinion of the trial judge which does not purport to be findings of fact is not properly a part of the statement of facts, and will be struck out on motion as pertinent to the question of costs.</p> <p>Same—Briefs—Contents. An opinion of the trial judge citing authorities may be included in the brief on appeal by way of argument.</p> <p>Municipal Corporations—Improvements—Appeal From Assessment—Record. Failure to bring up the original improvement ordinance does not affect the jurisdiction of an appeal from an order confirming a local assessment, in view of Rem. Code, § 7892-22, providing that there shall be brought up the assessment roll, the objections thereto, together with the ordinance confirming the roll, and the “record” of the council.</p> <p>Same—Improvements—Assessments—Objection. The objections to an assessment roll, although somewhat general, are sufficient where they clearly suggest the invalidity of the assessment and the record upon which the invalidity was based, showing on the face of the record that the property was not liable to assessment.</p> <p>Same^-Assessments—Agreements. A stipulation in a petition for an improvement waiving exemption from assessment is capable of abrogation by a subsequent agreement.</p> <p>Same—Assessments—Agreements—-Waiver by City—Estoppel. Both upon the principle of estoppel and res adjudicata, a city cannot levy a supplemental assessment, where the city attorney, in open court, in consideration of an award of only nominal damages, had agreed that the property should not be assessed and the city had ratified the agreement by striking the property from the assessment roll.</p>

<p>Municipal Corporations—Use oe Streets—Collision at Crossing—Negligence—Last Clear Chance. There is no room for the application of the doctrine of last clear chance where a collision at a street intersection between an automobile and a motorcycle occurred instantaneously and the jury found that the defendant could not have avoided the accident after he actually saw the plaintiff’s perilous position.</p> <p>Trial—Verdict—Special Findings—Construction. In an action for personal injuries sustained in an automobile collision where no instructions were requested or given with reference to the defendant’s duty to be upon the lookout for or to observe the plaintiff, and an instruction upon the doctrine of last clear chance was given without that feature, and not excepted to, it becomes the law of the case, and a special finding that the defendant could not have stopped the automobile after he actually saw the plaintiff, under the instruction given, controls a general verdict for the plaintiff based upon the doctrine of last clear chance.</p> <p>Municipal Corporations—Use oe Streets—Accident at Crossings—Negligence—Violation oe Ordinance. A verdict for personal injuries sustained in an automobile collision cannot be based upon the defendant’s failure to observe a city ordinance requiring him to drive as near the right-hand curb as possible, where his position in the center of the street merely enabled the parties to see each other sooner, and had no causal connection with the accident.</p> <p>Same—Use op Streets—Accident at Crossings — Contributory Negligence. A motorcyclist is guilty of contributory negligence precluding recovery for a collision with an automobile at a street intersection, where the city ordinance provided that vehicles going in a northerly or southerly direction shall have the right of way, that he approached the intersection running westerly, saw the automobile driven southerly about to enter the intersection, and having made a miscalculation of distance or speed, suddenly turned his motorcycle, when it skidded, and he fell in the path of the automobile.</p>

<p>Limitation of Actions—Application of Statute. An action by one county against a new county upon a liability created by a' statute requiring the assumption of a proportionate share of the old county indebtedness falls within Rem. Code, § 165, prescribing a two-year limitation for all actions for relief “not hereinbefore provided for”; notwithstanding the indebtedness was in the nature of a specialty.</p> <p>Same—Accrual—Demand. Where a demand was a prerequisite to commencement of an action against a county, the demand must be made within the statutory period for the commencement of the action, as the period cannot be prolonged by delay in making the demand.</p> <p>Same—Tolling Statute—Injunction. An injunction to prevent an unauthorized settlement of a liability of one county to another does not toll the statute of limitations as to an action to recover the amount due; and especially where the injunction was against the debtor and not against the creditor county.</p>

<p>Insurance—Marine Insurance — Policy — Restrictions—“Warranty.” A marginal insertion on a policy of marine insurance “warranting” that the boat shall be employed in certain waters is an essential part of the contract, breach of which avoids the policy, and not a warranty, within the contemplation of 3 Rem. & Bal. Code, § 6059-34, providing that a breach of a warranty shall not avoid the policy unless it exists at the time of and contributes to the loss.</p>

, entered November 22, 1916, upon findings in favor of the plaintiff, in an action for breach of covenant, tried to the court.

<p>Prohibition—When Lies—Jurisdiction — Adequacy of Remedy by Appeal. Prohibition does not lie to. prevent a threatened erroneous esercise of jurisdiction in condemnation proceedings with two juries under the Army Post act, Laws 1917, p. 2, which provides for only one jury, but gives complete jurisdiction to proceed by condemnation proceedings, since the act gives an adequate remedy by appeal, which is the test as to whether the writ lies, irrespective of the question of jurisdiction or lack of jurisdiction.</p>

Application filed in the supreme court September 22, 1917, for a writ of review to review an order of the superior court for Pierce county, Clifford, J., entered August 28, 1917, denying the removal of a cause for trial.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered August 24, 1916, upon granting a nonsuit, dismissing an action for conversion.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered June 27, 1916, upon findings in favor of the plaintiff, in an action for rent, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Whitman county, McCroskey, J., entered October 1, 1915, upon findings in favor of the defendant, dismissing an action on contract, tried to the court. Affirmed.</p>

, entered August 2, 1916, upon verdicts rendered in favor of the plaintiffs, in consolidated actions for personal injuries sustained in a train wreck.

<p>Cross-appeals from a judgment of the superior court for Okanogan county, Pendergast, J., entered July 19, 1916, in an action to quiet title to waters of a stream, tried to the court.</p>

<p>Appeal—Preservation oe Grounds—Exceptions to Instructions. In the absence of exceptions to or requests for instructions, those given become the law of the case, and are not subject to review.</p> <p>Waters and Water Courses—Irrigation Districts—Capacity to be Sued—Statutes. An irrigation district organized under Rem. Code, § 6416, is a municipal corporation that may be sued for breach of contract to deliver water, in view of Id., § 6429, giving its board of directors power to institute any and all actions, and sue, appear, and defend in person in the name of the district.</p> <p>Same—Irrigation—Contract por Supply—Construction by Parties. A contract by an irrigation district to furnish water, “during the irrigation season commencing on the first day of April hereafter and ending on. the last day of October,” which was executed May 31 1915, and acknowledged July 6, 1915, covers service during the season of 1915, where the parties so construed it by payment and acceptance of the maintenance fee for 1915 and undertaking delivery of water.</p>

<p>Appeal from a judgment of the superior court for What-com county, Pemberton, J., entered April 27, 1916, upon the verdict of a jury rendered' in favor of the defendants, in an action for damages for trespass to property.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered August 7, 1916, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a policy of marine insurance.</p>

superior court for Walla Walla county, Mills, J., entered July 17, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages.

<p>Application filed in the supreme court August 10, 1917, for a writ of prohibition to prevent the superior court for King county, Mackintosh, J., from changing the custody of a minor child pending a hearing upon application for habeas corpus.</p>

<p>Husband and Wife—-Conveyances Between — Separate Property. Property acquired by a man before marriage, which he after-wards deeded to his wife, and which she the next day deeded back to him, is his separate property, under Rem. Code, § 8766, providing that every deed made from husband to wife or from wife to husband shall operate to divest the real estate from any and every claim as community property.</p> <p>Witnesses—Competency—Transactions With: Person Since Deceased. A widow, defending an action to quiet title in a fiduciary capacity, but who claims a one-half interest in the property as community property, is incompetent to testify as to any transaction had with her deceased husband, under Rem. Code, § 1211, providing that a party in interest shall not be admitted to testify in his own behalf as to such transaction, but that the exclusion shall not apply to persons defending in a representative capacity who have no other or further interest in the action; as she had such other and further interest.</p> <p>Deeds—Consideration—Love and Affection—Title. A conveyance to the grantor’s sister, in consideration of $10 and love and affection, and care and assistance to be given to grantor’s child, conveys the absolute title, and was not a deed in trust for the child, the deed having been made shortly before the grantor’s death with the evident purpose of enabling the sister to care for the child.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered September 26, 1916, upon findings in favor of the plaintiff, in an action for equitable relief, tried to the court and' a jury.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered June 29, 19.16, upon the verdict of a jury rendered in favor of the defendant upon a counterclaim for damages, in an action on contract.</p>

<p>Waters and Water Courses — Purchase—Use oe Channel — Rights oe Riparian Owners. Riparian owners who quitclaimed all the waters of a stream are not entitled to stored waters belonging to the plaintiff which plaintiff caused to flow down the channel without exceeding high water mark; in view of Rem. Code, § 6337, which provides that any person may take any water which he may have a right to use along any of the natural streams of the state, not raising the same above high-water mark; and such use of streams as highways is not inconsistent with the riparian ownership of the bed of a nonnavigable stream, where no damage is done to the channel.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered November 25, 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 Garfield county, Miller, J., entered October 13, 1916, in favor of the defendants, dismissing an action to establish a trust, tried to the court.</p>

, entered January 6, 1917, upon findings in favor of the defendants, dismissing an action for equitable relief, tried to the court.

<p>Intoxicating Liquors—Offenses—Sale to Minor—Intent—Wilfulness. Under Rem. Code, § 2445, making it a crime to sell intoxicating liquor to a minor, neither intent nor wilfulness is. an element of the offense, and belief that the liquor sold was nonintoxicating is no. defense.</p>

, entered December 5, 1916, in favor of the defendant, denying a claim for compensation for personal injuries, upon appeal from a decision of the industrial insurance department.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered November 15, 1916, upon find^ ings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered December 27, 1916, upon findings in favor of the defendants, in an action for specific performance, tried to the court.</p>

Appeal by plaintiff from a judgment of the superior court for Franklin county, Linn, J., entered July 18, 1916,- in favor of the plaintiff, in an action to enjoin the collection of a tax, tried to the court.

<p>Husband and Wipe—Alienation op Appections—Damages—Excessiveness. A verdict for $15,000 against parents of a husband for alienation of the husband’s affections is not excessive where the defendants spirited him away immediately after the marriage, a strong bond of affection having theretofore existed, arid the facts warranted an inference that the defendants were prompted by malicious motives.</p> <p>Appeal—Review—Harmless Error. Error cannot be predicated upon the suppression of a deposition, taken at the instance of a party who was no longer a party to the action or interested in the outcome.</p> <p>Witnesses — Competency — Husband and Wipe. Rem. Code, § 1214, providing that a husband shall not be examined for or against his wife without her consent, applies to an action for alienation of affections.</p> <p>Appeal—Review—Harmless Error. Error in the suppression of a deposition of a husband in an action by a wife against his parents for alienation of affections is not available to the defendants, where the deposition was taken only because of the husband’s absence from the state, and, under Rem. Code, § 1214, he could not testify against the wife without her consent.</p>

<p>Courts—Transfer of Causes—Police to Justice Court—Jurisdiction—Statutes. ' A change of venue will not lie from the police court of a city of the third class to a justice court, when the action is to recover a penalty or fine declared by city ordinance which exceeds $100 in amount; in view of Rem. Code, § 46, expressly limiting the jurisdiction of justices of the peace in criminal cases, except in cities of the first class, to fines of one hundred dollars or imprisonments in the county jail for thirty days, while police judges in cities of the third class have jurisdiction by Rem. Code, § 7671-29, in criminal cases to impose a fine of $300.</p>

<p>Damages — Loss of Earning Power — Defenses—Instructions. In an action for personal injuries, resulting in alleged loss of earning power, an instruction that plaintiff’s excessive use of intoxicating liquors could not be considered on that issue is erroneous as withdrawing from the jury the defense that plaintiff’s loss of earning power was due to his excessive use of intoxicating liquors after the accident. ></p> <p>Trial—Instructions—Duty of Jury. It is proper to instruct that the jury should not be influenced by any feeling or prejudice or sympathy for or against either party and that a corporation was entitled to the same treatment in court as a private individual in like circumstances.</p>

<p>Sales—Actions—Breach—Damages. In an action for breach of contract to deliver wheat on a certain date, the damages must be measured by the market price at that time; and a complaint alleging only the market value months later when demand was made is demurrable.</p>

<p>Infants—Delinquent Children — Commitment — Statutes. A of twenty-one years,” and that “in no case shall a child be commit-under the juvenile court act until twenty-one years of age; it being provided by Rem. Code, § 1987-1 that the act shall apply to all minor children under the age of eighteen years, and by § 1987-10 that the record might be destroyed “on or before the child arrives at the age of twenty-one years,” and that “in no case shall a child be committed beyond the age of twenty-one years.”</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered1 April 17, 1916, upon granting a nonsuit, dismissing an action for libel.</p>

, entered October 27, 1916, upon findings in favor of the defendant, dismissing an action on a benefit certificate, tried to the court.

<p>Estoppel — Inconsistent Positions — Judicial Proceedings. An award of permanent alimony in gross, the force of wbicb was not affected by the construction and claim of defendant that tbe award was a property settlement and not subject to modification, does not estop tbe defendant from subsequently contending tbat tbe award was not discharged in bankruptcy; since a question of law and not of fact was involved, and tbe rights of tbe parties were not affected.</p> <p>Bankruptcy—Discharge—Judgment for Alimony. Under tbe bankruptcy act of 1898, a decree for alimony for tbe support of wife or child does not constitute a provable debt and hence is not barred by tbe bankrupt’s discharge, whether tbe allowance was subject to modification or not.</p>

, entered' November 3, 1916, in favor of the plaintiffs, in an action for a writ of mandamus to compel a county treasurer to accept a certain rate of interest on a delinquent local improvement assessment.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered December 9, 1916, upon findings in favor of the plaintiff, in an action bn contract, tried to the court.</p>

, entered June 20, 1916, upon findings in favor of the contestant, setting aside the probate of a later will, and establishing a former one, after a hearing upon a contest before the court.

<p>Corporations — Representation — Contracts — Directors — Authority. Where four of the five directors of a corporation got together at the instance of the president, the by-laws authorizing special meetings of the board to be called at any time by the president or by a majority of the board, and entered into and signed a contract wherein the company agreed to sell and give an option upon certain shares of its capital stock, the contract is the contract of the company, and it is immaterial whether the directors signed the same on behalf of the company as individuals or as directors authorized to act at a special meeting of the board.</p> <p>Same—Stock—Increase—Fictitious Issue—Sale at Less Than Par. A contract whereby a corporation, having but 23,000 shares remaining in its treasury, and needing money for development and contemplating an increase of 1,000,000 shares, agreed to sell and give an option on from 300,000 to 500,000 shares, of the par value of one dollar each, at the stated purchase price of seven cents, is ultra vires and unenforcible, under Const., art. 12, § 6, providing that “all fictitious increase of stock or indebtedness shall be void”; since the purchaser was not a subscriber and the stock taken would be fictitious to the extent of 93 per cent.</p>

<p>Venue — Change—Application—Proceedings—Statutes. Under Rem. Code, § 208, requiring a change of venue in a transitory action to the county of defendant’s residence, if at the same time “he appears and demurs or answers,” he files an affidavit of merits and demands the change, it is not necessary to either answer or demur, but a notice of appearance, affidavit of merits and demand is a substantial compliance with the statute.</p> <p>Same—Change—Application—Waiver. Under such statute, the service of notice of appearance some days before demand and affidavit of merits, does not waive the right to a change of venue, where the papers were all filed at the same time and it was the first matter in the case submitted to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered April 12, 1916, upon the verdict of a jury rendered in favor of the plaintiffs by direction of the court, in an action in ejectment.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Jackson, J., entered May 31, 1916, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

<p>Insurance-—Fire Insurance — Proofs of Loss — Waiver—Evidence—Sufficiency. The sworn proofs of loss required by the New York standard form of fire insurance policy to be furnished within sixty days after the loss are waived where, immediately after the fire, the insured notified the company of the loss, furnished upon request an itemized inventory and all information desired by the company and was assured that nothing further was necessary and was thereby misled to believe that the statement made was a full compliance with the policy.</p>

, entered April 5, 1916, in favor of the defendant, in an action to cancel a contract for the sale of real estate, tried to the court.

<p>Appeal—Decision—Law op Case. A decision on a former appeal becomes tbe law of tbe case where tbe evidence on tbe retrial was substantially tbe same presenting tbe same questions on tbe second appeal.</p> <p>Trial—Instructions—Written Instructions—Waiver. Instructions in writing are waived where counsel remained silent when the court declared it would state tbe issues orally and reduce them to writing later, and stated be did not desire oral argument deferred until tbe instructions had been transcribed.</p> <p>Same—Written Instructions—Presumptions. In such a case, it will be presumed, in tbe absence of a showing to tbe contrary, that they were reduced to writing.</p>

, entered March 2, 1916, upon the verdict of a jury rendered in favor of the defendants, in an action of unlawful detainer.

, entered December 23, 1916, iipon findings in favor of the plaintiffs, in an action to enjoin the collection of an assessment for a permanent highway improvement, tried to the court.

<p>Appeals from a judgment of the superior court for Yakima county, Mills, J., entered October 28, 1916, in favor of the defendant cross-complainant, in an action for equitable relief, tried to the court.</p>

Cross-appeals from a judgment of the superior court for Okanogan county, C. H. Neal, Esq., judge pro tempore, entered March 22, 1916, favorable in part to plaintiffs, in an action to quiet title, tried to the court.

F. Wright, J., entered October 13, 1916, upon findings in favor of the plaintiffs, in an action to quiet title, tried to the court.

, entered September 21, 1915, upon findings in favor of the plaintiff, in an action of unlawful detainer, tried to the court.

, entered December 13, 1916, in favor of the defendant, affirming an order of the public service commission eliminating a grade crossing, after a hearing before the court.

, entered November 10, 1916, upon findings in favor of the plaintiff, modifying a decree of divorce respecting alimony, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered January 3, 1916, upon findings in favor of the plaintiffs, in an action to quiet title, tried to the court.</p>

<p>Municipal Corporations — Use of Streets — Motor Vehicles — Regulation—Bonds—-Constitutional Law — Due Process — Equal Protection of Laws. The jitney bus act, Rem. Code, § 5562-37 et seq., requiring city motor carriers of passengers for hire to give a security bond executed by a qualified surety company, does not violate the constitutional prohibitions against depriving one of property without due process of law, or of the equal protection of the laws, notwithstanding the act is prohibitive from the fact that there are no qualified surety companies from which such bonds are obtainable; since the state in the exercise of its police power can prohibit the use of the streets as a place of private business.</p> <p>Same—Use of Streets—Motor Vehicles—Regulation—Bonds— Statutes. Rem. Code, g 5562-38, requiring city motor carriers of passengers for hire to give a security bond executed by a surety company to do business in this state, running to the state of Washington, conditioned for the faithful compliance with the provisions of the act, is not satisfied by procuring a liability bond by a mutual union insurance company indemnifying the carrier against liability for damages, and assigning such bond to the state for the benefit of third persons who may be injured by the negligent driving of the vehicle.</p>

Cross-appeals from a judgment of the superior court for Yakima county, H. M. Taylor, Judge pro tempore, entered July 14, 1916, upon findings after a trial to the court on the merits, in an action for an accounting and equitable relief.

<p>Appeal—Decision—Law of Case. A decision on a former appeal that, upon certain testimony, the" question was one of fact for the jury, becomes the law of the case and is conclusive upon a second trial in which the testimony was practically the same.</p>

Cross-appeals from a judgment of the superior court for King county, Smith, J., entered September 18, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.

<p>Appeal from an order of the superior court for King county, Dykeman, J., entered August 1, 1916, appointing a receiver pendente lite.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered April 13, 1916, upon findings in favor of the plaintiff, in an action for separate maintenance.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, X, entered July 3, 1916, upon findings in favor of the plaintiff, in an action for an accounting, tried to the court.</p>

<p>Motion filed in the supreme court May 14, 1917, to strike a statement of facts.</p>

, entered May 23, 1916, upon findings in favor of the plaintiff, in an action on a fire insurance policy, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered December 17, 1915, dismissing’ an action to cancel assessments for a public improvement, tried to the court.</p>