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in case of fraud or mutual mistake of facts." The same doctrine is laid down by this court in the case of Liverpool & London & Globe Insurance Company V. Richardson Lumber Co., 11 Okl, 585, 69 Pac. 938.

On the strength of this statute and these cases, the decision of the probate court is affirmed, at the costs of the plaintiff in error. All the Justices concurring, except PANCOAST and GARBER, JJ., absent.

MEMORANDUM DECISIONS.

sign same without the consent of the lessors. The lessee, G. W. Garrison, claims that prior to the signing of said lease and the delivery thereof he had entered into a separate and collateral agreement with the lessors, whereby it was agreed, stipulated, and understood that, in case said lessee assigned said lease, and was not in arrears with the rent at the time of assignment, he should be relieved, personally, from all liability under and by virtue of the terms of said lease contract; that this agreement was a condition precedent to the signing of said lease contract; and that the same would not have been signed and accepted by him but for the oral stipulations above referred to. The plaintiff in the court below brought an action against Garrison for the rent in arrears on said contract. The trial court refused to permit the defendant Garrison to testify as to the terms of said oral agreement, or to testify as to whether there was an oral agreement between the parties. The trial court also refused to permit defendant to show that the plaintiffs had assumed control of the premises by attempting to lease them to other parties, to which ruling of the court the defendant excepted. At the conclusion of the testimony, the court directed the jury to find a verdict for the plaintiff, which was done, to which defendant excepted. Motion for new trial was filed, overruled, and exceptions allowed, and the case is brought here for review.

sas.

CASE v. FRAIIM. (Supreme Court of Kan

July 5, 1907. Rebearing Denied Oct. 5, 1907.)

Error from District Court, Rawlins County; A. C. T. Geiger, Judge. Action by Thomas Frahm against .J. B. Case. Judgment for plaintiff. Defendant brings error. Affirmed. Fred Robertson, for plaintiff in error. W. E. Saum, for defendant in error.

PER CURIAM. We are unable to distinguish this case from the cases of Ordway v. Cowles, 45 Kan. 447, 25 Pac. 862, and Robidoux v. Munson (decided by this court February, 1907) 88 Pac. 1085, and are satisfied with the conclusions reached in those cases. The judgment of the trial court is therefore affirmed.

Grant & McAdams, for plaintiff in error. J. H. Everest and C. F. Smith, for defendants in error.

IRWIN, J. (after stating the facts as above). The sole and only question raised in this case by the brief and argument of plaintiff in error, and the only ground assigned as error for a reversal of this case, is the action of the court in refusing the evidence as to the oral agreement. We take the proposition to be elementary that all prior and contemporaneous oral agreements as to matters involved in a written contract are merged in the written contract, and that the written contract cannot be changed or varied by such prior and contemporaneous parol agreements. Our statute, in our judgment, conclusively settles this proposition. Section 781, Wilson's Rev. & Ann. St. Okl. 1903, is as follows: "The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument." The Supreme Court of this territory, in the case of Deming Investment Company v. Shawnee Fire Insurance Co., 16 Okl. 1, 83 Pac. 918, 4 L. R. A. (N. S.) 607, says: "A contract in writing, if its terms are free from doubt and ambiguity, must be permitted to speak for itself, and cannot by the courts, at the instance of one of the parties, be altered or contradicted by parol evidence, unless

CHICAGO, R. I. & P. RY. CO. V. MORRILL. (Supreme Court of Kansas. July 5, 1907.) Error from District Court, Smith County; R. M. Pickler, Judge. Action by Jesse Morrill against the Chicago, Rock Island & Pacific Railway Company. From a judgment in favor of plaintiff, defendant brings error. firmed. N. A. Low and Paul E. Walker, for plaintiff in error. J. T. Reed, for defendant in error.

PER CURIAM. The defendant in error was a section hand in the employment of the plaintiff in error at the station of Kensington, in Smith county. The company had a pumphouse and well there in charge of H. L. Worley. cember 31, 1902, Worley had occasion to be absent, and requested Joseph Giroux, who was the section boss, to look after the pumphouse, build a fire, sweep out, and see that everything was all right. Morrill was directed by Giroux to do this. Worley had also requested him to do so whenever he was away. Morrill went to the pumphouse as directed, and before leaving lifted a trap-door and looked down in the well to see if everything was right. He heard a noise, which he thought might be escaping steanı. The well was 60 feet deep, and about 20 feet

It was provided with ladders so constructed that the pumper could descend into the well to examine the pipes, which he did every day. The plaintiff went down to ascertain the cause of the noise, and the ladder gave way, and he fell on a cross-timber and was injured. August 3, 1903, the plaintiff commenced this action in Smith county district court, where he recovered a judgment for $2,000 on September 12, 1905. The railway company brings the case here. It is claimed that the plaintiff, when injured, was not engaged at work which he was employed by the company to do, and therefore he has no cause of action against it. It is also claimed that no negligence on the part of the company was shown. Numerous other questions have been presented, but they are all involved in these two. The only evidence on the subject

shows that the plaintiff was sent to the pump- | 5091); the pleading being too general to be sufhouse to look after things, and see that they ficient upon any other theory: No special findwere all right, by the pumper, Worley, and the ings were made or asked. The judgment may section boss, Giroux, who were authorized by the have been based upon a decision against the company to do so. It is also amply shown that plaintiff on the issue as to possession; the .evthe structure by which descent was made in the idence thereon being conflicting. Under such well had been erected some 15 years before, and circumstances we can only affirm it. was thoroughly decayed and rotten. It did not appear that it had ever been inspected. The decayed condition was not apparent from the up MILLS v. HARKIN et al. (Supreme Court per surface of the timbers, but was easily seen of Kansas. July 5, 1907.) Error from District by a casual look at the under side. The jury, Court, Miami County; W. II. Sheldon, Judge. by its general verdict, found that the company Action by Blanche Hogan Harkin and another was negligent. We are unable to find error, and against W. M. Mills. From a judgment in fathe judgment is affirmed.

vor of plaintiffs, defendant brings error. Affirm

ed. L. S. Harvey and Frank M. Sheridan, for CITY OF TOPEKA V. PERT. (Supreme

plaintiff in error. Shendon & Simpson, for de

fendants in error. Court of Kansas. July 5, 1907.) Error from District Court, Shawnee County ; A. W. Dana,

PER CURIAM. The action was brought by Judge. Action by Rebecca A. Pert against the

Blanche Hogan Harkin to set aside and cancel city of Topeka. From a judgment in favor of an oil and gas lease executed by Thomas Hoplaintiff, defendant brings error. Affirmed. F.

gan, her father, to W. M. Mills. The title to G. Drenning and W. C. Ralston, for plaintiff in

the land was in the daughter, to whom the parerror. Hazen & Gaw, for defendant in error.

ents had conveyed it when she was an infant

18 months old. PER CURIAM. No substantial error was

The conveyance was recorded committed in requiring the city to go to trial

when it was executed, and the lessee - had conat the term the trial was had. Both parties

structive notice that the grantor of the lease had

no title to the land. Believing, however, that mistakenly proceeded on the theory that the defendant was in default; but the demurrer of the

Thomas Hogan was the owner, Mills expended

$500 in developing oil and gas, and thereby incity, which was filed by consent of the plaintiff, was adjudged to be frivolous, and hence the case

creased the value of the land to double what it then stood as if no demurrer had been filed.

was. The daughter may have known all about

the lease. Neither the ruling on the demurrer, nor in de

There were some circumstances in nying the motion for continuance, furnish ground

proof tending to show that she did; but the

court made special findings of fact covering evfor complaint. The time subsequently given for answer and preparation for trial was brief; but

ery disputed point in the case, setting aside the an examination of the record satisfies us that

finding of the jury, to which certain issues of no injustice was done to the city in requiring

fact had been submitted merely to aid the court. a trial at that term. The affidavit for contin

The court's findings are that the conveyance to uance, setting forth the absent testimony, was

the daughter was in good faith, for value; that treated as a deposition, which the city was priv

the deed was placed on record, and afterwards ileged to introduce, but did not. No error was

delivered to the daughter; that the daughter had committed in the admission of testimony, nor in

possession of the land at the time the lease was the rulings on instructions. Judgment affirmed.

executed, and had no knowledge or notice of the lease. These findings cannot be disturbed on the

ground that in the opinion of plaintiff in error FURBECK V. HOLMAN. (Supreme Court

they are against the weight of evidence, or that of Kansas. July 5, 1907.) Error from District

the evidence is not sufficient to support each and Court, Trego County; J. H. Reeder, Judge.

all of them. There were two jury trials, and Action by B. E. Furbeck against S. J. Holinan.

the court set aside the special findings at the Judgment for defendant, and plaintiff brings er

first, and granted a new trial. It was, there ror. Affirmed. W. E. Saum, for plaintiff in

fore, wholly unnecessary and uncalled for to in

cumber the record in this case with the proceederror. A. D. Gilkeson, for defendant in error.

ings of the first trial, and to assign as error rulPER CURIAM. The contract introduced in

ings of the court thereon, or, in commenting upevidence over the plaintiff's objection corroborated the defendant's testimony. All other mat

on the evidence, to quote from the evidence at

the first trial, because the first trial was set ters discussed depend upon what the facts were.

aside. This practice is condemned, as well as The facts were found generally by the trial

the practice indulged in here of making unneccourt adversely to the plaintiff upon conflicting oral testimony, and under the well-known rule

essary and useless assignments of error. There this court cannot interfere. The judgment of

are 29 separate errors assigned. Two relate to

errors occurring at the first trial; 13 relate to the district court is affirmed.

the giving or refusal to give instructions, and are argued at length in the brief, although the

court set aside all the findings of the jury; and HASTINGS v. FOX et al. (Supreme Court of Kansas. July 5, 1907.) Error from District

10 of the others relate to rulings upon the ad

mission of evidence, and none are well taken. Court, Rawlins County : A. C. T. Geiger, Judge.

The questions asked were not proper cross-exAction by N. N. Hastings against Kosewell Fox

amination. Many of them were afterwards askand others. From a judgment in favor of defendants, plaintiff brings error. Affirmed. J.

ed of and answered by the same witness, when

placed upon the stand by the defendant. The P. Noble, for plaintiff in error. J. H. Briney

other errors are predicated upon the refusal to and Langmade & Caster, for defendants in er

set aside the findings made by the court, and ror.

denying the motion for a new trial. No errors PER CURIAM. N. N. Hastings brought an being found in the record, the judgment is afaction to quiet title against several defendants, firmed, and, failing to recover, prosecutes error. Various questions are argued in the briefs, which cannot be considered, as it is impossible to ascertain from the record.whether they were pass STATE ex rel. COLEMAN, Atty. Gen., v. ed upon by the trial court. The petition alleg CITY OF PITTSBURG. (Supreme Court of ed tilat plaintiff was in the possession of the Kansas. July 5, 1907.) Quo warranto by the property in controversy. This allegation was state, on the relation of C. C. Coleman, Attora material one, inasmuch as the action was ney General, against the city of Pittsburg. brought under the statute (Gen. St. 1901, 8 Judgment for the state. F. S. Jackson, Atty.

Gen., C. D. Shukers, Sp. Asst. Atty. Gen., for / tion of fact for the jury whether the boy exthe State. J. L. Kirkpatrick, J. J. Campbell, ercised reasonable care to discover the approach and B. S. Gaitskill, for defendant.

of the train, and whether he did what a reasonPER CURIAM. Action of quo warranto, ably prudent person would do under all the cirbrought by the state on the relation of the At cumstances to avoid the danger after he distorney General, to oust the city of Pittsburg corered the approaching train. We cannot say from the exercise of certain assumed and unwar

that their findings were not supported by eviranted corporate powers, namely, the imposition dence, nor under undisputed facts that the boy and collection of a license tax upon the business

was guilty of contributory negligence. The trial of selling and keeping for sale intoxicating liq errors assigned have been examined, and we find uors in a manner forbidden by law, and also

nothing to justify a reversal of the case. The authorizing and licensing bawdy houses and

judgment is therefore affirmed. houses of ill fame and the collection of money from the keepers and inmates of these places for the privileges of carrying on the illicit busi

BARNES, Respondent, v.

V. GRANITE BIIt was alleged that the city officers ex

METALLIC CON. M. CO., Appellant. (Wo. ercised these unwarranted powers and collected

2.315.) (Supreme Court of Montana. Nov. 3, license taxes for these prescribed privileges as

1.906.) Appeal from District Court, Granite fines and forieitures in simulated prosecutions,

County; Geo. B. Winston, Judge. W. E. brought at stated times under certain invalid

Moore, for appellant. W. L. Brown, for recity ordinances. The report of the commission

spondent. er appointed to take the testimony has been PER CURIAM. The appeal herein is hereby made, and the case finally submitted on the er

dismissed. idence and a brief in behalf of the state. though the charges in the petition a"e not directly admitted, the testimony sustaining them BROWN, Respondent, v. DUNLAP et al., is abundant and convincing. No one appears

Appellants. (No. 2,300.) (Supreme Court of here in behalf of the city to contest the suffi Montana. Oct. 10, 1906.) Appeal from Disciency of the evidence, or to defend or excuse the

trict Court, Carbon County ; Frank Henry, unlawful actions of the city officers. Judgment Judge. C. L. Merrill, for appellants. will be rendered in favor of the state against PER CURIAM. Upon motion of appellants, the city as prayed for in the plaintiff's petition. the appeal herein is hereby dismissed.

CITY OF LIVINGSTON, Respondent, V. LEE et al.. Appellants. (No. 2.323.) (Supreme Court of Montana. Oct. 8. 1906.) Appeal from District Court, Park County; Frank Henry, Judge. O'Conner & O'Connell, for appellants. J. T. Smith and O. M. Harvey, for respondent.

PER CURIAM. ['pon motion of respondent, the appeal herein is hereby dismissed.

TOWNS V. MILLER. (Supreme Court of Kansas. July 5, 1907.) Error from District Court, Lane County ; Chas. E. Lobdell, Judge. Action between H. E. Towns and G. F. Miller, From the judgment, Towns brings error. firmed. J. 1). Lafferty, for plaintiff in error. W. H. Russell, for defendant in error.

PER CURIAM. Under the decision in the case of Bushey v. Hardin (Kan.) 86 Pac. 146, the proceedings for the sale of the land in controversy were invalid from the beginning, because a lawful sale could not be consummated during the term of the existing lease. It would open the door to juggling in the disposition of school lands if proceedings to sell could be commenced in the lifetime of one lease on the theory that a second lease might be made to effectuate them. The proceedings to sell and the sale being invalid, the second lease was valid, and the judgment of the district court is affirmed.

FLYNN et al., Appellants, v. POINDEXTER & ORR LIVE STOCK CO., Respondent. (No. 2.3.36.) (Supreme Court of Montana. Oct. 6, 1906.) Appeal from District Court, Beaverhead County ; Lew L. Callaway, Judge. Edwin Norris and T. B. Poindexter, for respondent.

PER CURIAM. Upon motion of respondent, the appeal herein is hereby dismissed; the transcript not having been filed in time.

LYNG, Respondent, V. ARMSTRONG, Appellant. (No. 2,376.) (Supreme Court of Montana. Nov. 26, 1906.) Appeal from District Court, Cascade County; J. B. Leslie, Judge. F. E. Stranahan, for respondent.

PER CURIAM. Respondent's motion to dismiss the appeal herein is hereby sustained, and the appeal dismissed.

UNION PAC. R. CO. v. McCULLOUGH et ux. (Supreme Court of Kansas. July 5, 1907. Rehearing Denied Oct. 5, 1907.) Error from District Court, Dickinson County ; 0. L. Moore, Judge. Action by Samuel H. McCullough and wife against the Union Pacific Railroad Company. There was a judgment for plaintiffs, and defendant brings error. Affirmed. N. H. Loomis, R. W. Blair, and H. A. Scandrett, for plaintiff in error. C. E. Pugh and Geo. E. Overmeyer, for defendants in error,

PER CURIAM. In this case the defendants in error recovered judgment for $3,375 for the negligence of the railroad company's trainmen, which resulted in the killing of their son at a crossing in Solomon. The defense was a general denial and contributory negligence. The evidence has been examined and found sufficient to sustain the finding of negligence on the part of the trainmen. It appears from the evidence and findings that the heads of the team the boy was driving were over or across the first rail of the track, upon which the train which killed him was approaching, when it was first possible for him to see the approaching train; that he immediately whipped up and attempted to cross ahead of the train, but his wagon was struck by the engine, and he was killed. The circumstances were such that it is peculiarly a ques

MCCLURE, Appellant, T. MANUEL et al., Respondents. (No. 2,187.) (Supreme Court of Montana. Dec. 13, 1.900.) Appeal from District Court, Lewis and Clark County : Henry C. Smith, Judge. F. P. Sterling and E. W. Toole, for appellant. Word & Word, for respondents.

PER CURIAM. This appeal is hereby dismissed, as per stipulation of counsel.

PIPPINGER et al., Respondents, v. ROCKY FORK COAL CO., Appellant. (No. 2,160.) (Supreme Court of Montana. April 6, 1906.) Appeal from District Court, Carbon County; Frank Henry, Judge. Wallace & Donnelly, for appellant. T. J. Walsh, for respondents.

PER CURIAM. Upon motion of appellant, the appeal herein is dismissed, as settled.

1906.) Original application for writ of quo POINDEXTER & ORR LIVE STOCK CO., warranto. R. E. Hammond, for relators. Respondent, v. FLYNN et al., Appellants. (No. PER CURIAM. Nothing appearing in the 2.357.) (Supreme Court of Montana. Oct. 6, application herein why this court should take 1906.) Appeal from District Court, Beaverhead

original jurisdiction of this cause, the same is County ; Lew L. Callaway, Judge. Edwin Nor

hereby dismissed. ris and T. B. Poindexter, for respondent.

PER CURIAM. Respondent's motion to dismiss the appeal herein, for the reason that the STATE ex rel. WILLIAMS, Respondent, v. transcript had not been filed in time, is hereby | CALKINS, Appellant. (No. 2,269.) (Supreme sustained, and the appeal dismissed.

Court of Montana. April 3, 1906.) Appeal from District Court, Silver Bow County; Geo.

M. Bourquin, Judge. On motion to dismiss apSTATE, Respondent, v. ANDERSON, Appel peal. James E. Healy, for appellant. Mackel lant. (No. 2.327.) (Supreme Court of Mon & Meyer, for respondent. tana. Oct. 2, 1906.) Appeal from District PER CURIAM. Upon motion of the respondCourt, Deer Lodge County: Geo. B. Winston,

ent herein, this appeal is hereby dismissed. Judge. Mackel & Meyer, for appellant. Albert J. Galen, Atty. Gen., for the State.

PER CURIAM. Upon motion of appellant, STORY, Appellant, v. PITMAN, Respondent. the appeal herein is hereby dismissed.

(No. 2.265.) (Supreme Court of Montana. May 14, 1906.). Appeal from District Court, Carbon

County ; Frank Henry, Judge. H. C. Crippen, STATE, Respondent, v. WATSON, Appellant.

for appellant. (No. 2.285.) (Supreme Court of Montana. May PER CURIAM. The appeal herein is here4, 1906.) 'Appeal from District Court, Silver by dismissed, as settled. Bow County, Michael Donlan, Judge. Maury & Hogevoll and John G. Brown, for appellant. Albert J. Galen, Atty. Gen., for the State.

SULLIVAN, Respondent, v. BANK et al., PER CURIAM. For failure of appellant to Appellants. (No. 2,325.) (Supreme Court of file brief herein, the appeal is, on motion of re

June 27, 1906.) Appeal from Disspondent, hereby dismissed.

trict Court, Silver Bow County; John B. McClernan, Judge. Maury & Hogevoll, for appel

lants. R. B. Smith, for respondent. STATE, Respondent, v. YOUMANS, Appel

PER CURIAM. Respondent's motion to dislant. (No. 2.299.) (Supreme Court of Montana. miss the appeal herein is sustained, and the apMay 28, 1906.) Appeal_from District Court, peal dismissed. Sweet Grass County ; Frank Henry, Judge. Sydney Fox and Fred H. Hathhorn, for appellant. Albert J. Galen, Atty. Gen., for the VUKSINICH, Respondent, V. GRAND State.

LODGE A. 0. U. W. OF MONTANA, AppelPER CURIAM. Brief of appellant not hav

lant. (No. 2,316.) (Supreme Court of Míontana. ing been filed within the time prescribed by the

Dec. 20, 1906.) Appeal from District Court, rules of this court, the appeal is, on respond

Silver Bow County ; John B. McClernan, Judge. ent's motion, dismissed.

Massena Bullard, for appellant.

PER CURIAM. It is ordered that the ap

peal herein be, and the same is, hereby dismissSTATE ex rel. COTTER et al., Relators, V.

ed, in accordance with præcipe on file. DISTRICT COURT OF SECOND JUDICIAL DIST. et al., Respondents. (No. 2.330.) (Supreme Court of Montana. July 2, 1906.) TERRITORY ex rel. SIMONS, Atty. Gen., Original application for writ of supervisory con v. DIVERS, Mayor. (Supreme Court of Oklatrol. C. M. Parr and J. M. Lewis, for relators. homa. Sept. 20, 1907.) Mandamus by the terPER CURIAM. The relators' application for

ritory, on relation of P. C. Simons, Attorney writ of supervisory control herein is hereby de

General, against William H. Divers, mayor of nied.

Anadarko. Dismissed. P. C. Simons, E. E.
Grinstead, L. E. McKnight, and A. T. Boys, for

relator. Carl Glitsch and Rush & Steen, for STATE ex rel. DONOVAN, Relator, v.

respondent. BROWN et al., Respondents. (No. 1,737.)

PER CURIAM. The petition in this case (Supreme Court of Montana. Oct. 2, 1906.) was filed in this court April 1, 1904. No briefs Original application for writ of mandate. H. by either party having been filed, in accordance J. Haskell and T. C. Holmes, for respondents. with the rules of this court the case is dismiss

PER CURIAM. Upon motion of Albert J. ed, at the costs of the plaintiff. Galen, Attorney General, this cause is hereby dismissed.

WHITE v. WHITE. (Supreme Court of Oregon. Aug. 6, 1907.) Appeal from Circuit

Court, Washington County, T. A. McBride, STATE ex rel. ENRIGHT et al., Appellants,

Judge. Suit by Emma G. White against EuV. DORAN, Respondent. (No. 2,328.) (Su

gene D. White. From the decree for plaintiff, preme Court of Montana. June 22, 1906.) Ap

defendant appeals._Affirmed. H. K. Sargent, peal from District Court, Silver Bow County; for appellant. S. B. Huston, for respondent. Michael Donlan, Judge. Jesse B. Roote, Peter

PER CURIAM. This is a suit by the wife Breen, and A. C. McDaniel, for appellants.

for a divorce on the ground of desertion. The PER CURIAM. Appellants' application for answer denies the abandonment, and alleges that writ of supersedeas, or other appropriate writ, the defendant was obliged to leave his home by is hereby denied.

reason of the plaintiff's cruel and inhuman treatment, the facts of which are stated by way

of cross-bill, and the prayer is that her suit may STATE ex rel. STRINGFELLOW et al., Re be dismissed, that he may have the divorce, and lators, v. DEVLIN et al., Respondents. (No. also be allotted an undivided one-third of her 2.307.) (Supreme Court of Montana. May 4, real property, a description of which is given.

The allegations of new matter in the answer and cross-complaint were denied in the reply, on which issues the cause was tried and a decree rendered as prayed for in the complaint, from which the defendant appeals. No good purpose can be promoted by setting out any part of the testimony, a perusal of which persuades us that no error was committed in granting the plaintiff the divorce, which decree is affirmed.

trial. Under such circumstances it is a common experience with the best of men to remember particular facts somewhat imperfectly. The conflict in this case we believe is due to such fact, rather than to any intentional misstatement on the part of any of the witnesses. Upon the whole evidence we are satisfied with the findings of the trial court. The conclusions of law follow therefrom, and the judgment is affirmed.

AMES V. KINNEAR et al. (Supreme Court of Washington. Sept. 6, 1907.) Appeal from COLBY V. MONTANA STABLES. (SuSuperior Court, King County ; Arthur E. Grif preme Court of Washington. July 26, 1907.) fin, Judge. Action by Edgar Ames against Appeal from Superior Court, King County; George Kinnear and others. Judgment for de Geo. E. Morris, Judge. Action by G. E. Colby fendants, and plaintiff appeals. Affirmed. Baus against the Montana Stables. From a judgman & Kelleher and Sachs & Hale, for appel ment for plaintiff, defendant appeals. Affirmed. lant. Jas. M. Epler and Chas A. Kinnear, for Brown, Leihey & Kane, for appellant, McBurrespondents.

ney & Cummings, for respondent. PER CURIAM. This is the second appeal PER CURIAM. The facts and issues in in this case. For the former opinion, see 42 this case are the same as in the case of Weaver Wash. SO, 84 Pac. 629. Reference is here made v. Montana Stables (decided March 23, 1907), to that opinion for a full statement of the na 89 Pac. 154. No new questions are presented. ture of the controversy. By that decision For the reasons there stated, the judgment in the trial court was directed to overrule the de this case must be affirmed. It is so ordered. murrer to the answer, and upon the return of the cause to that court the demurrer, was overruled, and the plaintiff replied to the answer.

ILLINOIS REFRIGERATOR CO. v. RICE. With the issues thus formed the cause was

(Supreme Court of Washington. Sept. 5, 1907.) tried before the court without a jury, and re Appeal from Superior Court, Spokane County; sulted in a judgment dismissing the cause, from Henry L. Kennan, Judge. Action by the Illiwhich the plaintiff has appealed. The findings nois Refrigerator Company against E. L. Rice. of the court are substantially in accordance with From a judgment for plaintiff, defendant apthe facts averred in the affirmative defense, the peals. Affirmed. A. E. Barnes, H. M. Brooks, scope of which may be seen by reference to the and E. L. Rice, for appellant. Belden & Losey, former opinion. The only matter urged upon

for respondent. this appeal is the insufficiency of the evidence PER CURIAM. This action was brought to sustain the findings. We have carefully read by the respondent to recover from appellant the the testimony, and we find evidence fully sup value of certain goods alleged to have been porting the court's findings. We are satisfied wrongfully appropriated by the appellant, who that under the record we would not be justified was acting as agent for respondent in the sale in disturbing the findings as made. It is true of the goods. Upon issues joined the cause was there is conflict in the testimony upon some ma tried to the court without a jury. Findings and terial points; but we shall not undertake to a judgment were entered in favor of the resay from the record before us that the trial spondent. The questions presented on this apcourt erred in finding the greater weight of the peal are wholly questions of fact. We have evidence to be with the respondents. The find carefully examined the evidence, and are satisings do not necessarily reflect upon the integri fied that the trial court arrived at a correct ty of any witness. Years had elapsed between judgment in the case. It is needless to discuss the happening of the events and the time of the 'the evidence.

the evidence. The judgment is affirmed,

END OF CASES IN VOL. 91.

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