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It is urged that that part of the judgment | ing the year 1905, the appellant collected secrunning against her separate estate is erro-ond-year premiums on policies secured by neous, in that the judgment was for goods the respondent, the commissions on which at purchased and used in a business conducted the rate specified in the contract amounted to by the community, and not for her separate the sum of $102.17. This action was brought individual benefit. It appears, however, from by the respondent against the appellant to rethe evidence that the goods were sold to both cover that sum. The court below awarded of the spouses, and upon the credit of each him judgment, and the insurance company and both. At the request of the husband the appeals. goods were shipped in the wife's name and The record does not disclose the ground upbills therefor rendered in her name to which on which the trial court rested its judgment, no exception or objection was ever taken or but possibly it was thought the commissions made by her. We think it is made satis- were earned, and that the right to them factorily to appear that she was a party in would not terminate on the termination of her individual capacity to the making of the the relations of the parties created by the conpurchases, or that they were in part, at least, tract. What would be the rights of the upon her credit. The testimony of the re- parties under the circumstances were the spondent to the effect that he sold and de- contract silent on the question might be delivered the property to both appellant and batable; but the contract is not silent. It husband was not disputed by any evidence plainly provides that the respondent shall from either.

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

FULLER- | ceased. The parties had a right to make TON, and DUNBAR, JJ., concur.

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 (45 Wash. 141)

courts in the absence of a showing that, BUTLER v. NEW YORK LIFE INS. CO.

by mutual mistake or fraud, the writing (Supreme Court of Washington. Dec. 21, 1906.)

does not express the actual agreement made

by the parties. There was no such showing INSURANCE – CONTRACT WITH AGENT — CON


Where a contract between an insurance The judgment is reversed and remanded, company and its agent provided that the agent with instructions to enter a judgment for the should receive for his services a certain per

defendant cent. of all originál cash premiums for the first year of insurance and a certain per cent. on the second-year premiums, which should be MOUNT, C. J., and HADLEY, DUNBAR, collected during the time the respondent contin: | ROOT, and CROW, JJ., concur. ued 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

(45 Wash. 128) him.

STARR v. ÆTNA LIFE INS. CO. OF HARTAppeal from Superior Court, King County ;

FORD, CONN. Geo. E. Morris, Judge.

(Supreme Court of Washington. Dec. 21, 1906.) Action by Frank J. Butler against the 1. TRIAL CONFUSING INSTRUCTIONS CONNew York Life Insurance Company. From a STRUCTION-ENTIRE CHARGE.

The giving of an instruction which might judgment for plaintiff, defendant appeals.

have been confusing to the jury if considered Reversed, and judgment directed.

alone was not reversible error, where, taken in H. T. Granger, for appellant. Byers &

connection with the entire charge, it was not

calculated to mislead the jury or cloud the Byers, for respondent.

issues involved, and the charge as a whole was

fair and reasonably explicit. FULLERTON, J. The appellant, a life in- [Ed. Note.--For cases in point, see Cent. Dig.

vol. 46. Trial, $$ 703-717.] surance company, appointed the respondent as its agent to solicit insurance on its be

2. INSURANCE ACTIONS ON POLICY DEhalf. The contract between the parties was


In an action on an accident policy to rein writing, and provided that the respondent

cover for death of assured caused by the operashould receive for his services a certain per tion of a railroad, the court was not required to centum on all original cash premiums for the give an instruction limiting plaintiff's recovery first year of insurance, and a certain per

to $1,000 instead of $5,000, if the jury found

that assured's death was due to unnecessary centum on second-year premiums which

exposure to obvious danger where no such deshould be collected during the time the re- fense was pleaded. spondent continued as agent of the appel- [Ed. Note.--For cases in point, see Cent. Dig.

vol. 28. Insurance, $ 1780.] lant. The parties by mutual consent terminated their relations on January 1, 1905, Appeal from Superior Court, Spokane the respondent entering into the service of County; W. A. Huneke, Judge. another company and severing in toto his Action by Amelia Starr against the Etna connection with the appellant company. Dur- 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.

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 relused, to enter judgment of dismissal of the action. Il cld, 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.

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. 281.

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 oc(upied 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 oc(upied 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 interpo 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.

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.

(45 Wash. 127) KING et al. V. CARMICHAEL et al. (Supreme Court of Washington. Dec. 21, 1906.) BOUNDARIES ESTABLISMENT OFFICIAL SURVEYS-LOST CORNERS.

If the location of an original corner of a quarter section has been preserved, it marks one of the points from which the dividing line be

tween the quarter sections must be run, no

(45 Wash, 193) matter at what point on the line it is found, but, CUSITING et al. v. CITY OF SPOKANE et al. if it is lost, it must be established by survey according to rules laid down by the Interior (Supreme Court of Washington. Dec. 29, 1906.)

. Department for the establishment of lost cor

1. QUIETING TITLE-CLOUD ON TITLE-TAX ners, or some rule producing an equitable result.

LIEXS. [Ed. Note.--For cases in point, see Cent. Dig. Where the court has decided that liens vol. 8, Boundaries, $ 60, 61, 64.]

for street assessments were barred by the Appeal from Superior Court, King County;

statute of limitations, the owners were, in pro

ceedings to quiet title, entitled to an order reA. W. Frater, Judge.

quiring the city authorities to cancel said Action by Rufus L. King and others liens on their books. against William Carmichael and others.

[Ed. Note.---For cases in point, see Cent. Dig. From a judgment for defendants, plaintiffs

vol. 41, Quieting Title, $8 14-16, 26.]

2. SAJE-JUDGMENT. appeal. Affirmed.

An order requiring city authorities to canVince II. Faben, for appellants. Larrabee cel, as a cloud on title, certain liens for street & Wright, for respondents.

assessments barred by limitations, should not require an entry on the city records indicating

payment of said liens, and thereby charging PER CURIAM. This appeal presents a

the city treasurer with receipt of the funds;

but the cancellation should state that it was contest over the location of the dividing

made in conformity to the judgment of the court. line between the southeast and southwest quarters of section 6, in township 24 north,

Appeal from Superior Court, Spokane

, of range 6 east, of the Willamette meridian.

County: IIenry L. Kennan, Judge, The line marking the south boundary of the

Proceedings by E. T. Cushing and another section was reported by the government

against the city of Spokane and another. surveyor who originally surveyed it as From a judginent for plaintiffs, defendants being practically of full length. Subse- appeal. Remanded for modification of judg

ment. quent measurements, however, established the fact that its actual length was some 942 J. M. Geraghty and Alex. M. Winston, feet short of a mile. The appellant con.

for appellants. E. II. Belden and W. C. Lostended at the trial that the southeast quarter ey, for respondents. of the section was originally of full width, leaving all of the shortage in the south- HADLEY, J. This is an action to remove west quarter, and he sought to establish his the cloud of certain street assessment liens contention by showing the original location which were levied by the city of Spokane. It of the quarter-section corner. The respond- is alleged that the liens are barred by the statent contended that the original corner was ute of limitations, and that the city and the lost and could not be found, and that its loca- defendant Eggleston, its treasurer, refused to tion must be determined according to the cancel the liens upon the assessment books rules laid down by the Interior Department in the city treasurer's office, by reason of for the establishment of lost corners. A which a cloud is cast upon the lots; that dividing line had been run by the county heretofore, in an action wherein the city of surveyor according to these rules, appor

Spokane was plaintiff and the plaintiffs heretioning the shortage between the two quarter in, E. T. Cushing and Mary S. Cushing, were sections.

defendants therein, the city sought to foreThe case presents a question of fact only. close its liens for said assessments, but such If the place of location of the original cor- proceedings were had that it was adjudged ner has been preserved, then unquestionably that the action was not commenced within it marks one of the points from which the the time limited by law, and it was declared dividing line between the quarter sections that the real estate was released and dismust be run, no matter at what point on charged from all liens resulting from such the line it is found. On the other hand, if assessment proceedings; that, notwithstandthe corner is lost, then it must be established ing said judgment, the defendants refuse to according to the rule followed by the county discharge and cancel the liens of record; and surveyor, or by some rule equally satisfac- that upon the books of the city treasurer tory and which will produce an equitable they continue to set opposite the description result. On the question of fact we are not of each lot the amount of said assessment inclined to disturb the findings of the trial against it, and thereby assert that it is a court. While two witnesses did testify posi- claim against the land. The complaint prays tively that they found the original corner for judgment requiring the defendants to some years ago while the original bearing cancel the said assessment liens upon the astrees were standing and marked its place sessment rolls and records of the city. The with a cedar stake, we think their evidence answer admits the judgment aforesaid, and was overcome by the evidence on the part of that, by reason of the failure of the city to the witnesses for the respondent, as well as bring suit within the time limited by law, by certain physical facts shown in the rec- it now has no right to bring suit to collect ord.

said assessments. It admits that the liens The judgment appealed from is right, and are barred, and avers that the defendants do

, will stand affirmed.

not claim or assert the fact to be that the 87 P.-71

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.

assessments are liens upon the lots. The 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

(45 Wash. 187) BYBEE v. BYBEE. (Supreme Court of Washington. Dec. 29, 1906.) 1. APPEAL-FINDING OF FACT-EXCEPTIONSREVIEW.

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-DEEDSTRUSTS.

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,

1896, and for some time prior thereto, the failing to print the findings of fact or any plaintiff was married to one Marion Bybee, exceptions thereto. The appellant contended and was then living with her; that the re- that the respondent in his answer brief had lations between the plaintiff and his wife, failed to properly call appellant's attention Marion Bybee, were such that a legal sep- to such omission, and that the rule should aration was contemplated by him; that not now be enforced, nor should his briefs on May 27, 1896, the plaintiff intended to be now stricken. The respondent did fail institute divorce proceedings; that for the to properly raise this question in his answer purpose of cheating and defrauding his brief. We have, however, carefully examinwife, Marion Bybee, out of any interest in ed the record, and fail to find that the apthe land, and with the intent of placing it | pellant ever presented or filed any excepbeyond the reach of the courts in such im- tions to any of the findings of fact. This pending divorce proceedings, plaintiff exe- being true, we could in no event review the cuted and delivered the deed mentioned in evidence for the purpose of ascertaining the complaint; that such deed was made, whether it supports the findings made, even executed, and delivered for the sole purpose though the findings had been printed in openof defrauding plaintiff's wife, Marion By- ing or reply brief. bee; that at all times since the plaintiff No exceptions to the findings having been has recognized and treated the defendant presented or filed, they must stand as made as the owner of the legal title, and has never by the trial court. The only question now prior to the commencement of this action before us is whether the findings made supdenied the execution and delivery of the port the final judgment. From them it apdeed; that on August 31, 1896, in further- pears that the deed was without consideraance of his plan to cheat and defraud his tion, and that it was not executed by the rewife, Marion Bybee, the plaintiff brought spondent for any fraudulent purpose. his suit for divorce and secured a settle- This being true, the final judgment is ment with his wife, then claiming to her that right, and it is accordingly affirmed. all property he had owned had been conveyed to the defendant for the purpose of

MOUNT, C. J., and ROOT and DUNBAR, settling a bona fide debt; that these asser- JJ., concur. HADLEY and FULLERTON, tions were believed by his wife, Marion JJ., did not sit. Bybee, who was thereby defrauded into con

(45 Wash. 165) senting to a divorce without any division of

STATE v. KINNEY et al. property. The plaintiff having replied, the

(Supreme Court of Washington. Dec. 22, 1906.) trial court, after trial, made findings of fact,

JURY-COMPETENCY OF JURORS-ASSUMPTION from which it appears that the plaintiff ex

OF EVIDENCE FROM PROSECUTION. ecuted the deed which was duly recorded; A juror in a criminal trial was not inthat it was without any consideration pass- competent because he indicated on his voir ing from the grantee; that it was executed

dire that the fact that defendants had been

informed against led him to assume that there at the instance of one C. D. Bowles, with was some evidence of their guilt, where he had the advice of the defendant, to prevent the never heard of the case and had no impression plaintiff from squandering his property un

or opinion as to their guilt or innocence. der the influence of his wife, Marion Bybee,

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 31, Jury, $$ 438-448.] and not for the purpose of defrauding her; that the deed was not executed by James By

Root, Crow, and Hadley, JJ., dissenting. bee for the purpose of cheating or defraud- Appeal from Superior Court, Snohomist ing his wife, or any of his creditors, or County; W. W. Black, Judge. for the purpose of placing the property be- Charles Kinney and another were convictyond the reach of creditors in contemplation ed of robbery, and appeal. Affirmed.

, . of divorce; that the plaintiff was not guilty

Cooley & Horan and J. H. Naylor, for apof any fraud in the execution of the deed; pellants. J. W. Hartnett, for the State. and that it should be canceled. Upon these

. findings, judgment was entered canceling the DUNBAR, J. The defendants were condeed and quieting plaintiff's title. From victed of the crime of robbery, and judgment said judgment the defendant had appealed.

and sentence upon such verdict were entered. The principal assignments of error are After 11 of the jurors had been accepted and based upon the appellant's contention that passed upon as qualified to sit as jurors in the findings of fact are not sustained by the trial of the case, and after the defendthe evidence. The appellant has failed to ants had exhausted all their peremptory print, either in his opening or his reply challenges, the twelfth juror, a Mr. W. H. brief, the findings of fact of which he now Cleaver, was called and examined. After complains, or to print any exceptions to direct examination by the prosecuting atsuch findings. Upon the argument in this torney, counsel for the defendant, Mr. Naycourt the respondent's attorney for the first lor, proposed the following interrogatory: “Q. time presented a motion to strike the ap. The court, I believe, will announce to you in pellant's briefs, for the reason that he had his charge that it is a principle of law that violated rule 8 of this court (40 Pac. x) in a defendant is presumed to be innocent of

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