case of the service of notice by mail the time of service
shall be double that required in a case of personal serv-
ice.-Everett Water Co. v. Fleming.....
5. Same-Insufficiency of Service. Under Bal. Code, § 1714,
subd. 3, which authorizes the board of equalization to
raise an assessment "after at least five days' notice shall
have been given in writing to the owner or agent" of
the property to be affected, a notice requiring the prop-
erty owner to appear before the board "within five days
from the date of this notice" is insufficient.-Id......... 364
6. Same. The fact that the board of equalization does not
act upon a property owner's assessment until more than
five days have elapsed after notice to him would not
cure the service of inadequate notice upon him, since the
statute contemplates a notice to the property owner with
a date certain, fixed for his appearance more than five
days after the service of the notice.-Id.............
7. Delinquent Tax Sales-Illegal Assessment-Recovery of
Purchase Price-Sufficiency of Complaint. In an action
against a city to recover the purchase price of certificates
issued upon sales for delinquent municipal taxes, under
an ordinance which authorized the refunding of the pur-
chase price with interest, where such certificates "have
been illegally or erroneously issued, or issued on prop-
erty for a double assessment, on a misdescription, or on
city, school, church or otherwise exempt property," the
complaint states a cause of action when it alleges that
the assessor intentionally and fraudulently placed a valu-
ation upon the property covered by said certificates
largely in excess of its true value.-Gove v. Tacoma..... 474
8. Tax Sales-Redemption-Surrender of Certificate-As-
signment-Notice to City. Under § 121 of the charter of
the city of Tacoma, which provides that upon redemp-
tion of lands sold by the city for taxes the treasurer shall
"pay over the amount received for such redemption to
the purchaser or his assigns upon an order from the city
controller on surrender of the certificate of purchase,"
the city controller is bound to take notice of the possi-
bility of an assignment of the certificate of purchase and
to require its surrender, and where the redemption
money is paid to the original purchaser, the city is liable
therefor to his assignee, irrespective of any agreement
between assignor and assignee.-Bidwell v. Tacoma.... 518
See LIMITATION OF ACTIONS, 6, 9; MANDAMUS, 1; MU-
NICIPAL CORPORATIONS, 8, 20, 21.
1. Effect-How Far Admission of Contract Sued On. Where,
in an action on contract, the defendant pleads and makes
good in court a tender for a portion of the sum claimed
by plaintiff, he thereby admits only that a contract of the
general nature pleaded was entered into and the amount
due thereon to the extent of the tender, but he is not pre-
cluded thereby from showing damages as an offset or
counterclaim against the sum demanded by plaintiff, nor
estopped from asserting that there were other provisions
of the contract than those pleaded by plaintiff.-Young v.
Borzone..
2. What Should Be Included-Cost of Filing Lien Notice.
A tender made before the bringing of action for the en-
forcement of a lien need not include the cost of filing the
lien notice, since it is only in the event of the lienor's
prevailing in case of a suit that he is entitled to recover
the cost of filing such notice.-Id......
Sale by State-Construction of Contract-Inclusion of
Lands Within Government Survey. A purchaser from
the state of tide lands described as lying in front of, ad-
jacent to, or abutting on a lot as surveyed and platted by
the general government does not thereby acquire title to
tide lands within the meandered calls of said lot, but
only in front of, or abutting on, or adjacent thereto.-
Shelton Logging Co. v. Gosser....
Joint Tort Feasors-Setting Aside Verdict Against One-
Effect Upon Liability of Others. The action of the court
in setting aside a verdict and dismissing an action
against one of two joint tort feasors cannot be urged as
error by the other defendant, since each tort feasor is
severally liable for the whole damage.—Birkel v. Chand-
ler.....
1. Challenge to Legal Sufficiency of Evidence. Although
the evidence in an action based upon a contract giving
plaintiff one-half of the net profits arising from real
estate investments was hardly sufficient to permit the
jury to determine the net profits, a challenge to the legal
sufficiency of the evidence was properly overruled, where
the evidence showed that defendant admitted more than
three years after the dealings between him and plaintiff
were closed that plaintiff's share was for an amount in
excess of that for which suit was brought.-Marvin v.
Yates.
2. Instructions-Comment on Evidence. Where references
to the evidence, made by the court in its charge to the
jury, do not amount to an explanation or criticism of the
evidence, nor assume that a particular fact is proven
thereby, such comment is not in violation of § 16, art. 4,
of the constitution, which prohibits judges from com-
menting on the evidence.-French v. Seattle Traction Co.. 264
3. Refusal of Requested Instructions. The refusal of the
court to give a requested instruction is not error, where
all that is material in the requested instruction is given
by the court in its own language.—Id....
4. Findings of Fact and Conclusions of Law-Separate
Statement. Under Bal. Code, § 5029, which provides that,
in giving the decision in an action tried by the court,
the facts found and the conclusions of law shall be sep-
arately stated, it is sufficient, where the findings and
conclusions are placed under one cover, if they are sep-
arately and specifically set forth under their appropri-
ate headings.—Shephard v. Gove....
5. Question for Jury-Contributory Negligence. The ques-
tion of contributory negligence is properly one for the
jury, where reasonable men may fairly arrive at differ-
ent conclusions from the state of facts proven.-Nelson v.
S. Willey Steamship & Navigation Co......
6. Instructions-Construction as a Whole. Although de-
tached expressions in the court's charge to the jury, if
considered as independent expressions, may be technic-
ally erroneous, yet when the instructions as a whole
fairly state the law and do not mislead the jury, there is
no prejudicial error.-Carstens v. Earles.....
7. Same-Replevin-Instruction as a Whole. In an action
to recover possession of an engine which plaintiffs
claimed to have loaned a logging company, but which de-
fendants claimed had been supplied to such company
under a written contract which provided, in considera-
tion of certain agreements, that plaintiffs should furnish
such company all necessary supplies, such as provisions,
meats, hay, feed, and all other necessaries required to
carry on the logging business except horses, mules and
cattle, an instruction that the jury's verdict should be in
favor of defendants, if they believed from the evidence
that the written contract had never been abrogated and
that the ownership of the engine vested in the logging
company, was proper where the evidence showed that the
parties to such written contract had furnished axes, saws,
grindstones, peevies, chains and wire cable thereunder,
and it was proper to leave it to the jury to determine
whether the engine had been furnished in the same way.
-Id.....
8. Same. Where there was evidence that a partnership had
expressly assumed to pay an indebtedness on a logging
outfit belonging to one of the partners and used by the
copartnership, an instruction is not misleading as inti-
mating that one partner can take partnership property
to pay his individual debts, because it charges the jury
that if they believe a certain engine became the property
of the partnership and that the latter, by its managing
partner, transferred it to another in consideration of an
antecedent debt, who in turn transferred it to defend-
ants upon their promise to pay therefor, then their ver-
dict should be for defendants.-Id......
9. Same-Comment on Evidence. In an action involving
the title to a certain engine claimed by defendants under
a written contract and by plaintiffs by virtue of a subse-
quent abrogation thereof by parol agreement, an instruc-
tion which charges the jury that "where it has once been
established that there has been a contract of agreement
between two or more individuals, and the same is sought
to be avoided by any parol agreement, that the written
agreement is the best evidence," should not be held as
prejudicial error on the ground of being a comment on
the evidence, where the correctness of the written in-
strument is not disputed by any evidence, but in fact
fully conceded, and the only object of the parol evidence
was to show that the subject matter in controversy was
not included in the terms of the written agreement.-Id.. 676
10. Same-Preponderance of Evidence. An
charging the jury to find in a certain way unless the
contrary "shall be established by a preponderance of the
evidence satisfactory to your minds," in effect tells the
jury that, if they "believe" from a preponderance of the
evidence, they should so find, and such charge is not mis-
leading on the ground of telling the jury that more than
a preponderance of evidence is required.-Id........... 676
11. Same. The use of the term "fair preponderance" in re-
ferring in an instruction to the preponderance of evi-
dence necessary to justify the finding of the jury is not
misleading.-Id.....
See CONTRACTS, 3; CRIMINAL LAW, 1, 5-7; MASTER
AND SERVANT, 6; MUNICIPAL CORPORATIONS, 16, 18,
19, 24; NEGLIGENCE, 1, 2; PARTIES, 1; PARTNERSHIP;
REPLEVIN, 1, 2; STREET RAILROADS, 1-3; TORTS.
1. Conversion-Evidence—Admissibility.
the conversion of cattle, a letter by plaintiff's attorneys
to some of the defendants who had possession of them,
that the cattle had been stolen and that steps would be
taken to recover their value unless surrendered to the
owner, is admissible in evidence to show notice, al-
though containing irrelevant and incompetent matters,
which had already been excluded as incompetent.-Rec-
tor v. Thompson...
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