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ond-year premiums on policies secured by the respondent, the commissions on which at the rate specified in the contract amounted to the sum of $402.17. This action was brought by the respondent against the appellant to recover that sum. The court below awarded him judgment, and the insurance company appeals.

It is urged that that part of the judgment | ing the year 1905, the appellant collected secrunning against her separate estate is erroneous, in that the judgment was for goods purchased and used in a business conducted by the community, and not for her separate individual benefit. It appears, however, from the evidence that the goods were sold to both of the spouses, and upon the credit of each and both. At the request of the husband the goods were shipped in the wife's name and bills therefor rendered in her name to which no exception or objection was ever taken or made by her. We think it is made satisfactorily to appear that she was a party in her individual capacity to the making of the purchases, or that they were in part, at least, upon her credit. The testimony of the respondent to the effect that he sold and delivered the property to both appellant and husband was not disputed by any evidence from either.

The record does not disclose the ground upon which the trial court rested its judgment, but possibly it was thought the commissions were earned, and that the right to them would not terminate on the termination of the relations of the parties created by the contract. What would be the rights of the parties under the circumstances were the contract silent on the question might be debatable; but the contract is not silent. It plainly provides that the respondent shall recover commissions only on second-year

Finding no error in the judgment of the premiums, which are collected during his trial court, it is affirmed.

continuance as agent of the appellant, not those that might be collected after his agency

MOUNT, C. J. and HADLEY, FULLER- ceased. The parties had a right to make TON, and DUNBAR, JJ., concur.

(45 Wash. 141)

BUTLER v. NEW YORK LIFE INS. CO.
(Supreme Court of Washington. Dec. 21, 1906.)
INSURANCE - CONTRACT WITH AGENT-CON-
STRUCTION.

Where a contract between an insurance company and its agent provided that the agent should receive for his services a certain per cent. of all original cash premiums for the first year of insurance and a certain per cent. on the second-year premiums, which should be collected during the time the respondent continued as agent, and the parties by mutual consent terminated their relations at the end of the first year, the agent was not entitled to recover second-year premiums on policies secured by him.

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Frank J. Butler against the New York Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment directed.

H. T. Granger, for appellant. Byers & Byers, for respondent.

FULLERTON, J. The appellant, a life insurance company, appointed the respondent as its agent to solicit insurance on its behalf. The contract between the parties was in writing, and provided that the respondent should receive for his services a certain per centum on all original cash premiums for the first year of insurance, and a certain per centum on second-year premiums which should be collected during the time the respondent continued as agent of the appellant. The parties by mutual consent terminated their relations on January 1, 1905, the respondent entering into the service of another company and severing in toto his connection with the appellant company. Dur

their own contract with reference to the compensation to be paid by the one to the other, and their contract must be upheld by the courts in the absence of a showing that, by mutual mistake or fraud, the writing does not express the actual agreement made by the parties. There was no such showing here.

The judgment is reversed and remanded, with instructions to enter a judgment for the defendant

MOUNT, C. J., and HADLEY, DUNBAR, ROOT, and CROW, JJ., concur.

(45 Wash. 128) STARR v. ETNA LIFE INS. CO. OF HARTFORD, CONN.

(Supreme Court of Washington. Dec. 21, 1906.) 1. TRIAL CONFUSING INSTRUCTIONS - CON

STRUCTION-ENTIRE CHARGE.

The giving of an instruction which might have been confusing to the jury if considered alone was not reversible error, where, taken in connection with the entire charge, it was not calculated to mislead the jury or cloud the issues involved, and the charge as a whole was fair and reasonably explicit.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-717.]

2. INSURANCE ACTIONS ON POLICY - DEFENSES-PLEADING-INSTRUCTIONS.

In an action on an accident policy to recover for death of assured caused by the operation of a railroad, the court was not required to give an instruction limiting plaintiff's recovery to $1,000 instead of $5,000, if the jury found that assured's death was due to unnecessary exposure to obvious danger where no such defense was pleaded.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 28. Insurance, § 1780.]

Appeal from Superior Court, Spokane
County;
County; W. A. Huneke, Judge.

Action by Amelia Starr against the Etna
Life Insurance Company to recover on an ac-

cident policy. From a judgment for plaintiff, defendant appeals. Affirmed.

Post, Avery & Higgins, for appellant. Jas. A. Williams and Denton M. Crow, for respondent.

ROOT, J. This case was here once before, and may be found reported in 41 Wash. 199, 83 Pac. 113, to which report reference is now made for a statement of the facts involved. The principal matters urged upon our attention by appellant in the present appeal were adjudicated upon the former hearing, and the decision thereof has become conclusively the law of the case. Jancko v. West Coast Mfg. Co., 40 Wash. 230, 82 Pac. 284..

Two assignments of error are presented, however, that are not covered by that decision. After the jury had retired to deliberate upon their verdict, they were recalled and given the following instruction: "I instructed you what the definition of the right of way was and the words in this policy; that is, it is the way the train had a right to travel, and can travel, and such a distance outside of the rails on the roadbed, such a space occupied by the train, and contents carried thereon. In order to make my instruction more plain I will divide the entire right of way, 400 feet wide, into two parts, and call one the roadbed and the remainder the right of way. The roadbed is that part of the right of way inside of the rails, and such a distance outside as is embraced within the space occupied by the trains and the right of way would be all the remainder of the right of way outside the rails. What I intend to tell you is, the insured would have a right to be upon the right of way, but not upon the roadbed; and if, while being upon the right of way, and in the exercise of reasonable care, he met with an accident, and was injured thereby by coming in contact with a moving train or otherwise, the plaintiff would be entitled to recover. I think that makes the instruction plain." It is contended by appellant that this must have had the effect of confusing the minds of the jurymen. While the instruction is not a model of perspicuity, we think that, taken in connection with the entire charge. it was not calculated to mislead the jury or cloud the issues involved. The charge, as a whole, we regard as fair and reasonably explicit. IIence, no reversible error. Henry v. Grant St. Elec. Ry., 24 Wash. 252, 64 Pac. 137. Appellant also urges that the jury should have been instructed that they might, if they found for the respondent, return a verdict of not to exceed $1,000, instead of $5,000, if they also found that the death of assured was due to unnecessary exposure to obvious risk of injury or danger. No defense of this character was interposed by the answer, and we do not find any evidence calling for this instruction, in the absence of such a defense being pleaded.

Perceiving no error, the judgment of the trial court is affirmed.

HADLEY, FULLERTON, and DUNBAR, JJ., concur. RUDKIN, J., did not sit. CROW, J., having been of counsel, took no part.

(45 Wash. 196)

STATE ex rel. PIPER v. SUPERIOR COURT OF SPOKANE COUNTY.

(Supreme Court of Washington. Dec. 29, 1906.) MANDAMUS-ADEQUATE REMEDY-APPEAL.

Relator sued for the annulment of a marriage, and obtained service by publication, whereupon the court, on motion of the prosecuting attorney, refused to proceed for lack of jurisdiction, but it did not appear that the court was asked, or refused, to enter judgment of dismissal of the action. IIeld, that since complainant could have appealed from a judg ment of dismissal, she was not entitled to mandamus to compel the trial court to proceed with the cause.

Application for mandamus on relation of Dollie A. Piper against superior court of Spokane county. Writ denied.

Roche & Onstine, for relator. Carroll A. Gordon, for respondent.

PER CURIAM. This is an application for a writ of mandamus to compel the superior court of Spokane county and Hon. Miles Poindexter, as judge thereof, to proceed to the trial of a cause brought by the relator for an annulment of a void marriage between the relator and one William E. Piper. The court, upon objection made by the prosecuting attorney during the trial of the cause, refused to proceed with the trial, and held that it had no jurisdiction to try the cause, for the reason that the service had been by publication instead of by personal service, and that there was no provision of law for obtaining jurisdiction in such case by publication. Thereafter the plaintiff filed a motion for a new trial in said action, which motion was denied by the court. Neither the application of the relator nor the transcript which accompanies the application shows that the court was asked to, or refused to, enter a judgment of dismissal of the action. If such judgment of dismissal had been made, an appeal would have lain from such judgment to this court, and such appeal would have been an adequate remedy. The petition and the accompanying record, failing to show that the court refused to do any act the omission of which would deprive the relator of her right to appeal, the writ cannot be allowed and is therefore denied.

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tween the quarter sections must be run, no matter at what point on the line it is found, but, if it is lost, it must be established by survey according to rules laid down by the Interior Department for the establishment of lost corners, or some rule producing an equitable result. [Ed. Note.--For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 60, 61, 64.]

Appeal from Superior Court, King County; A. W. Frater, Judge.

Action by Rufus L. King and others against William Carmichael and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Vince H. Faben, for appellants. Larrabee & Wright, for respondents.

PER CURIAM. This appeal presents a contest over the location of the dividing line between the southeast and southwest quarters of section 6, in township 24 north, of range 6 east, of the Willamette meridian. The line marking the south boundary of the section was reported by the government surveyor who originally surveyed it as being practically of full length. Subsequent measurements, however, established the fact that its actual length was some 942 feet short of a mile. The appellant contended at the trial that the southeast quarter of the section was originally of full width, leaving all of the shortage in the southwest quarter, and he sought to establish his contention by showing the original location of the quarter-section corner. The respondent contended that the original corner was lost and could not be found, and that its location must be determined according to the rules laid down by the Interior Department for the establishment of lost corners. dividing line had been run by the county surveyor according to these rules, apportioning the shortage between the two quarter sections.

The case presents a question of fact only. If the place of location of the original corner has been preserved, then unquestionably it marks one of the points from which the dividing line between the quarter sections must be run, no matter at what point on the line it is found. On the other hand, if the corner is lost, then it must be established according to the rule followed by the county surveyor, or by some rule equally satisfactory and which will produce an equitable result. On the question of fact we are not inclined to disturb the findings of the trial court. While two witnesses did testify positively that they found the original corner some years ago while the original bearing trees were standing and marked its place with a cedar stake, we think their evidence was overcome by the evidence on the part of the witnesses for the respondent, as well as by certain physical facts shown in the record.

The judgment appealed from is right, and will stand affirmed.

87 P.-71

(45 Wash. 193)

CUSHING et al. v. CITY OF SPOKANE et al. (Supreme Court of Washington. Dec. 29, 1906.) 1. QUIETING TITLE-CLOUD ON TITLE-TAX LIENS.

Where the court has decided that liens for street assessments were barred by the statute of limitations, the owners were, in proceedings to quiet title, entitled to an order requiring the city authorities to cancel said liens on their books.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Quieting Title, §§ 14-16, 26.] 2. SAME-JUDGMENT.

An order requiring city authorities to cancel, as a cloud on title, certain liens for street assessments barred by limitations, should not require an entry on the city records indicating payment of said liens, and thereby charging the city treasurer with receipt of the funds; but the cancellation should state that it was made in conformity to the judgment of the court.

Appeal from Superior Court, Spokane County: Henry L. Kennan, Judge.

Proceedings by E. T. Cushing and another against the city of Spokane and another. From a judgment for plaintiffs, defendants appeal. Remanded for modification of judg ment.

J. M. Geraghty and Alex. M. Winston, for appellants. E. II. Belden and W. C. Losey, for respondents.

HADLEY, J. This is an action to remove the cloud of certain street assessment liens which were levied by the city of Spokane. It is alleged that the liens are barred by the statute of limitations, and that the city and the defendant Eggleston, its treasurer, refused to cancel the liens upon the assessment books in the city treasurer's office, by reason of which a cloud is cast upon the lots; that heretofore, in an action wherein the city of Spokane was plaintiff and the plaintiffs herein, E. T. Cushing and Mary S. Cushing, were defendants therein, the city sought to foreclose its liens for said assessments, but such proceedings were had that it was adjudged that the action was not commenced within the time limited by law, and it was declared that the real estate was released and discharged from all liens resulting from such assessment proceedings; that, notwithstanding said judgment, the defendants refuse to discharge and cancel the liens of record; and that upon the books of the city treasurer they continue to set opposite the description of each lot the amount of said assessment against it, and thereby assert that it is a claim against the land. The complaint prays for judgment requiring the defendants to cancel the said assessment liens upon the assessment rolls and records of the city. The answer admits the judgment aforesaid, and that, by reason of the failure of the city to bring suit within the time limited by law, it now has no right to bring suit to collect said assessments. It admits that the liens are barred, and avers that the defendants do not claim or assert the fact to be that the

The

assessments are liens upon the lots. following further averment appears in the answer: "That, said assessments never having been paid, these defendants have refused and do now refuse to make a false entry upon the books of the treasurer of the city of Spokane, to wit, that these defendants will not, unless ordered so to do by this court, make an entry upon the books of the city that these assessments have been paid, whereas, in truth and in fact said assessments have not been paid and were valid assessments; the lien and the right to enforce the same being barred by the statute of limitations, and there being no other defect or invalidity of said assessments." The cause was tried before the court without a jury, and resulted in a judgment declaring that the real estate is relieved from any liens by reason of said assessments, and also requiring the defendant Eggleston, city treasurer, within 30 days from the date of the judgment, to expunge from the city records and cancel on the records in the office of the city treasurer said pretended liens. From the judgment the defendants have both appealed.

From the above statement the judgment, in its effect at least, is so manifestly correct it would seem that no argument here can any more clearly state the reasons supporting it. Admittedly the city has no liens against the property of respondents, and the latter are therefore entitled to have removed all that even in appearance may indicate the existence of liens or claims. Appellants' chief objection seems to be to the form, rather than to the substance, of the judgment. They object to making entries upon the city's books canceling the liens of record, thus indicating that the assessments have been paid, when in fact they have not been paid. It is true the bare record of cancellation, without explanation might indicate payment, and perhaps in fairness to the city's officers, to prevent any appearance of misappropriation of funds, the explanation should accompany the record of cancellation. We therefore think appellants are entitled to have the judgment modified to that effect, to wit, that the judgment shall require cancellation to be entered of record, and the record of cancellation shall state that it is made by order of the court as set forth in this judgment. The entry may be made in any appropriate words which will show that it is made because of the command of the court contained in the judgment, and the judgment should be appropriately identified. The judgment shall also provide that the cancellation shall be made within 30 days from the date the remittitur herein shall be filed in the superior court. In all other respects the judgment is affirmed.

Notwithstanding the modification here directed, we think appellants are not entitled to recover their costs on appeal, for the reason that they do not appear to have asked such a judgment below. Doubtless the trial

court would have entered such a judgment, if it had been requested to do so.

The cause is therefore remanded, with instructions to modify the judgment in the particular indicated, and respondents shall recover their costs on this appeal.

MOUNT, C. J., and ROOT, DUNBAR, and FULLERTON, JJ., concur. RUDKIN and CROW, JJ., not sitting.

(45 Wash. 187)

BYBEE v. BYBEE. (Supreme Court of Washington. Dec. 29, 1906.) 1. APPEAL-FINDING OF FACT-EXCEPTIONS

REVIEW.

The evidence cannot be reviewed on appeal. to ascertain whether it supports the finding made, where appellant did not present or file any exceptions to any of the findings of fact. [Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1598.]

2. CANCELLATION OF INSTRUMENTS-DEEDS

TRUSTS.

Where complainant executed a deed to defendant without consideration, for the purpose of depriving himself of the power of squandering the property under the influence of his wife, and not for any fraudulent purpose, he was entitled to a decree canceling the deed at his election.

Appeal from Superior Court, Clarke County; O. V. Linn, Judge.

Action by James Bybee against Gay Bybee. From a decree in favor of plaintiff, defendant appeals. Affirmed.

Donald McMaster and Milton W. Smith, for appellant. A. L. Miller, for respondent.

CROW, J. James Bybee instituted this action against Gay M. Bybee, his son, to cancel a recorded deed to certain real estate in Clarke county. He alleged that on May 27, 1896, he executed the deed and left it with one C. D. Bowles, an attorney in Vancouver, Wash.; that the deed was without consideration, further than an intention on the part of plaintiff to convey the premises therein described to the defendant, so that the title might be held by him in trust for plaintiff; that plaintiff never carried out said intention; that he never delivered or authorized the delivery of the deed; that the defendant never received the same; that he never took possession thereunder; that by mistake, and without the knowledge or consent of plaintiff. the deed was filed for record; that defendant for a long time thereafter knew nothing of the deed or its record; that the plaintiff has been at all times in possession of the land; that the defendant has treated the land as plaintiff's, has held the title by mistake in trust for plaintiff, and never claimed ownership thereof until a short time prior to the commencement of this action; but that the defendant now claims to own the land, or to have some adverse interest therein. The defendant alleged that on May 27,

exceptions thereto. The appellant contended that the respondent in his answer brief had failed to properly call appellant's attention to such omission, and that the rule should not now be enforced, nor should his briefs be now stricken. The respondent did fail to properly raise this question in his answer brief. We have, however, carefully examined the record, and fail to find that the appellant ever presented or filed any exceptions to any of the findings of fact. This being true, we could in no event review the evidence for the purpose of ascertaining whether it supports the findings made, even though the findings had been printed in opening or reply brief.

No exceptions to the findings having been presented or filed, they must stand as made by the trial court. The only question now before us is whether the findings made support the final judgment. From them it appears that the deed was without consideration, and that it was not executed by the respondent for any fraudulent purpose.

This being true, the final judgment is right, and it is accordingly affirmed.

1896, and for some time prior thereto, the | failing to print the findings of fact or any plaintiff was married to one Marion Bybee, and was then living with her; that the relations between the plaintiff and his wife, Marion Bybee, were such that a legal separation was contemplated by him; that on May 27, 1896, the plaintiff intended to institute divorce proceedings; that for the purpose of cheating and defrauding his wife, Marion Bybee, out of any interest in the land, and with the intent of placing it beyond the reach of the courts in such impending divorce proceedings, plaintiff executed and delivered the deed mentioned in the complaint; that such deed was made, executed, and delivered for the sole purpose of defrauding plaintiff's wife, Marion Bybee; that at all times since the plaintiff has recognized and treated the defendant as the owner of the legal title, and has never prior to the commencement of this action denied the execution and delivery of the deed; that on August 31, 1896, in furtherance of his plan to cheat and defraud his wife, Marion Bybee, the plaintiff brought his suit for divorce and secured a settlement with his wife, then claiming to her that all property he had owned had been conveyed to the defendant for the purpose of settling a bona fide debt; that these assertions were believed by his wife, Marion Bybee, who was thereby defrauded into consenting to a divorce without any division of property. The plaintiff having replied, the trial court, after trial, made findings of fact, from which it appears that the plaintiff executed the deed which was duly recorded; that it was without any consideration passing from the grantee; that it was executed at the instance of one C. D. Bowles, with the advice of the defendant, to prevent the plaintiff from squandering his property under the influence of his wife, Marion Bybee, and not for the purpose of defrauding her; that the deed was not executed by James Bybee for the purpose of cheating or defrauding his wife, or any of his creditors, or for the purpose of placing the property beyond the reach of creditors in contemplation of divorce; that the plaintiff was not guilty of any fraud in the execution of the deed; and that it should be canceled. Upon these findings, judgment was entered canceling the deed and quieting plaintiff's title. From

said judgment the defendant had appealed.

The principal assignments of error are based upon the appellant's contention that the findings of fact are not sustained by the evidence. The appellant has failed to print, either in his opening or his reply brief, the findings of fact of which he now complains, or to print any exceptions to such findings. Upon the argument in this court the respondent's attorney for the first time presented a motion to strike the ap pellant's briefs, for the reason that he had violated rule 8 of this court (40 Pac. x) in

MOUNT, C. J., and ROOT and DUNBAR, JJ., concur. HADLEY and FULLERTON, JJ., did not sit.

(45 Wash. 165)

STATE V. KINNEY et al.
(Supreme Court of Washington. Dec. 22, 1906.)
JURY-COMPETENCY OF JURORS-ASSUMPTION
OF EVIDENCE FROM PROSECUTION.

A juror in a criminal trial was not in-
competent because he indicated on his voir
dire that the fact that defendants had been
informed against led him to assume that there
was some evidence of their guilt, where he had
never heard of the case and had no impression
or opinion as to their guilt or innocence.
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 31, Jury, §§ 438-448.]

Root, Crow, and Hadley, JJ., dissenting. Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Charles Kinney and another were convicted of robbery, and appeal. Affirmed.

Cooley & Horan and J. H. Naylor, for appellants. J. W. Hartnett, for the State.

DUNBAR, J. The defendants were convicted of the crime of robbery, and judgment and sentence upon such verdict were entered. After 11 of the jurors had been accepted and passed upon as qualified to sit as jurors in the trial of the case, and after the defendants had exhausted all their peremptory challenges, the twelfth juror, a Mr. W. H. Cleaver, was called and examined. After direct examination by the prosecuting attorney, counsel for the defendant, Mr. Naylor, proposed the following interrogatory: "Q. The court, I believe, will announce to you in his charge that it is a principle of law that a defendant is presumed to be innocent of

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