the consideration for which plaintiff transferred to defendant the said one-half interest in the said claim; nor was the said paper writing made for their benefit or either of them; nor did they or either of them ever transfer any property to the defendant or the said company, as a compliance with its terms; but that all demands of the plaintiff as to the purchase of the said half interest in the said claim, and of said agreement and paper writing, were fully satisfied by the delivery to the plaintiff by the defendant of $200 in cash, and by the transfer to the plaintiff by the defendant of 150,000 shares of the stock in the Monterey Gold Mining Company; and that the plaintiff received the same as full settlement of the said agreement and paper writing; and that every condition of the agreement entered into between the plaintiff and the defendant had been performed by the defendant.

The reply denied the affirmative matter of the answer. The answer and reply are, also, long and circumstantial, but upon these material issues the case went to trial. After the introduction of the testimony of the plaintiff, the defendant moved for a nonsuit, on the ground of insufficiency of the evidence to sustain the plaintiff's complaint. This motion was granted by the court, on the theory that the action was an action for conversion, and that it had not been shown that the stock was, or had been, in the possession of the defendant. Judgment was entered in favor of the defendant for costs, and this appeal is prosecuted from such judgment.

We think the court erred in sustaining the motion for nonsuit. Under the provisions of our code, a complaint is a plain statement of the facts upon which the plaintiff relies for relief. The facts, as stated in this complaint, are that an agreement was entered into between the plain

tiff and the defendant, which agreement bound the defendant to incorporate a company, issue 150,000 shares to the plaintiff, deposit 300,000 shares as treasury stock, and to issue the balance of the 1,000,000 shares, which was to be the amount of the shares, equally between the defendant and the other owners, who were, according to the plaintiff's contention, Donley, Hutchinson, and Stephens; and, according to the allegations of the complaint, this agreement had only been partially performed, and 287,000 of the shares, which were to have been issued to the respondent and the others mentioned, had not been issued. It is true that the complaint alleges that the respondent had these shares issued to himself, and it is also true that there was no proof to sustain this allegation. But the other allegation of the complaint that the plaintiff had refused to carry out the conditions of the contract by refusing to issue this stock to the parties to whom, under the agreement, it was to have been issued-is a good allegation of violation of the contract. If the defendant had neglected or refused to have issued to the plaintiff the 150,000 shares of stock which the contract provided should be delivered to the plaintiff, there is no question but that the plaintiff would have had an action against the defendant for a violation of his contract; and he could not have had an action against the corporation, for he had no contractual relations with the corporation, his contract being exclusively with the defendant. The other parties to the contract, namely, Stephens, Hutchinson, and Donley, would have had the same right of action against the defendant, if the amount of shares which he agreed to issue to them had not been issued in accordance with the agreement. The assignment of their right to these shares to this plaintiff carried with it all the rights that the assignors

had against the defendant; hence, he had a right to bring this action on the assigned claims against the defendant for a violation of the contract.

We think there was sufficient testimony offered by the plaintiff, which if uncontradicted, would have sustained a judgment against the defendant for violating his contract. That being true, there was sufficient to submit to the jury, and the judgment will therefore be reversed, with instructions to try the issues on the pleadings as finally settled by the trial court.

FULLERTON, C. J., and ANDERS, MOUNT, and Hadley, JJ., concur.

[No. 5428 Decided December 15, 1904.]

THE STATE OF WASHINGTON, on the Relation of John Anderson, Plaintiff, v. W. R. BELL, as Judge of the

Superior Court for King County, Respondent.1

APPEAL AND ERROR-EFFECT OF SUPERSEDEAS ON APPEAL FROM APPOINTMENT OF RECEIVER-MANDAMUS. An appeal from an order appointing a receiver, with a supersedeas bond given, does not affect the trial of the case on the merits, and mandamus will lie to compel the judge of the superior court to set the case for trial in its regular course where he refuses to do so on account of such an appeal.

Application to the supreme court, filed November 14, 1904, for a writ of mandate to compel the superior court for King county, Bell, J., to set a cause for trial. Writ granted.

A. A. Anderson and Tucker & Hyland, for relator.
Allen, Allen & Stratton, for respondent.

1Reported in 78 Pac. 908.

PER CURIAM.-This action was brought by the relator against W. R. Bell, judge of the superior court of the state of Washington in and for King county, to require him to set for trial a case pending in that court, entitled M. A. Redding, plaintiff, v. John Anderson, defendant. On the 12th day of August, 1904, the respondent, upon a hearing upon affidavits in response to an order to show cause, appointed a receiver of the property known as the North Star Lumber Company, in which the plaintiff in said action claimed to be a partner with the defendant John Anderson, as is set forth in the affidavit and petition for the writ herein. After such appointment the relator set the case for trial, and, upon the day of trial, the court refused to hear it, on the ground that an appeal had been prosecuted from the order appointing a receiver, and a supersedeas bond given; and held that the only thing for him to try was the accounting, and that he would try nothing until the determination of the appeal from the order appointing a receiver.

Under the doctrine announced by this court in State ex rel. Sanglin v. Superior Court, 30 Wash. 232, 70 Pac. 484, and under the plain provisions of the statute, the parties should have the privilege of a trial upon the merits of a case, with a right to have witnesses sworn, examined, and cross-examined, regardless of the fact that an appeal had been prosecuted from the order made by the court upon the trial by affidavits. The court, in its return to the alternative writ, indicates that an additional reason for not trying the case was the fact that the docket of the court was congested with business. But it also appears plainly from the return that, in any event, the court was of the opinion that the cause should not be tried during the pendency of the appeal. Of course, it is not the province or the intention of this writ to

36 198 42 186

compel the court to hear the cause out of its regular order, nor to displace other business of the court which would naturally have preference over this case. But the writ will issue in accordance with the petition and the cause will be tried in its due course.

[No. 5008. Decided December 15, 1904.]

J. P. O. LowNSDALE et al., Respondents and Cross-
Appellants, v. GRAYS HARBOR BOOM COMPANY,
Appellant.1

TRIAL INSTRUCTIONS-COMMENT ON FACTS. Where the evidence upon an issue of fact is clear and undisputed, the court may direct a verdict thereon, and an instruction stating the established facts is not within the constitutional inhibition against commenting upon the facts.

SAME STATEMENT OF REASONS FOR INSTRUCTIONS-HARMLESS ERROR. An instruction to the jury that the plaintiffs had, upon one of their causes of action, waived all claims except for nominal damages because of the difficulty of determining the exact amount, is not an unlawful comment on the facts by reason of stating the reasons for the waiver, and, if error at all, it was without prejudice.

EJECTMENT--DAMAGES

FOR DETENTION RENTAL VALUE—INSTRUCTIONS. In an action to recover damages for the unlawful detention of land, an instruction upon the measure of damages stating that the rental value is to be determined with reference to the uses to which the lands are suitable, "or such as may be reasonably expected in the immediate future," would be error if intended to authorize the determination of past rental value by its future rental value; but when, from the context of the whole instruction, such expression evidently referred to the beginning of defendant's occupancy, and not to rental value in the future, the same is not erroneous.

APPEAL AND ERROR-NUISANCE-INSTRUCTIONS-HARMLESS ERROR ISSUES FOUND IN FAVOR OF APPELLANT. In an action for damages to land unlawfully detained, and for an injunction to 1Reported in 78 Pac. 904.