of damages, and that is what the court told the jury.

[7] The appellants next argue at length that the evidence is insufficient to sustain the verdict. We have read the abstract of the record with some care, and conclude that there is sufficient evidence in the record to justify the jury in its finding that fraudulent representations were purposely made, and were relied upon by the plaintiffs in purchasing the property. This, of course, was a disputed question of fact. But there is ample evidence in the record, if believed by the jury, to justify the finding. It would serve no useful purpose to set the evidence out in this opinion.

their part of the bargain, I instruct you it is immaterial as to how or where the plaintiffs obtained the purchase price, and you are further instructed to disregard all testimony showing or tending to show that the plaintiffs borrowed any of the purchase price from any outsider, whether upon a chattel mortgage or otherwise." It is claimed that this instruction is a comment upon the facts; and further, that it withdraws from the jury the defendants' counterclaim or offset. No counterclaim was, in fact, pleaded. It is true in the original answer there was a statement to the effect that the plaintiffs "represented certain land to be worth $4,000, but which, in truth and in fact, was only worth $1,000, and no more." But this does not rise to the dignity of a counterclaim. It was not alleged nor claim- [8] During the argument to the jury the ed upon the trial that this difference in value, plaintiffs' attorney said: "Defendants' atif true, should be offset against any dam- torneys dare not open up McAulay's record ages which the plaintiffs were entitled to re- since he came back from prison." An excepcover. The fact very clearly appears upon tion was taken to this remark. The court the evidence that the plaintiffs had never thereupon instructed the jury to disregard seen the land, and so stated to defendants the remark, and told the jury, in substance, before the trade, and made no representa- that the argument of counsel was not evitions as to what it was worth. There was dence, and, when not supported by the evievidence to the effect that the defendants dence, should be disregarded; that it was had made an investigation of the tract of the duty of the jury to exercise the same land, and took it at the estimated value of degree of fairness and impartiality that they $4,000 after the examination. We are satis- would expect from the court if they as infied, therefore, that the court properly in- dividuals were submitting their cases to the structed the jury upon this question. The court. During the progress of the trial it instruction was not a comment upon the was shown without objection that the defacts. It simply excluded certain evidence fendant McAulay had served a term in the from the consideration of the jury; and this penitentiary of this state, and had been exclusion, we think, was proper. pardoned therefrom. While the remark of counsel may have been improper, we are satisfied that when the court instructed the jury as it did to disregard the remark, and not to consider remarks of that character, whatever error was made by counsel was cured by the court. We think no prejudice could have resulted therefrom.

The appellants next argue that the court erred in sustaining the demurrer to the orig. inal answer. We have already, in substance, determined this question.

[6] The appellants next argue that the court erroneously instructed the jury upon the measure of damages, as follows:

"In the event your verdict is for the plaintiffs, in determining the amount of damages they have suffered, if you find they have suffered damage, I instruct you that the measure of damages herein would be the difference between the purchase price of said hotel and its value at the time of the sale."

The appellants argue that this is not the correct measure of damages. They rely upon the rule as stated in Hunt v. Allison, 77 Wash. 58, 137 Pac. 322, where this court said:

"Where property is sold, and the purchaser subsequently brings an action charging fraudulent representations, the measure of damages is the difference between the value of the property transferred at the time of the sale and what its value would have been if it had been as represented."

There is no substantial difference between the rule as stated in Hunt v. Allison and the one given in this case. The substance is the same. If the property had been as represented, its agreed value was $18,500. The difference between that sum and its real value at the time of sale was the measure

cient.

sets forth three contracts and specifies one bond, | operations thereunder they maintained and and which recites that supplies were furnished conducted a general boarding camp where all by him for carrying on "said contract," but which fails to indicate the contract, is insuffi- their employés and laborers working under the contracts were boarded; that respondent, at the special instance and request of McGuire Bros., furnished them with meats, provisions, and supplies of the reasonable value of $526.15 for use in the boarding camp, and that the same were used in carrying on said

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 876, 877; Dec. Dig. 347.]

Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by the Carstens Packing Company against the Empire State Surety Company and another. From a judgment for plaintiff, defendant named appeals. Reversed and remanded, with instructions.

work and in the maintenance and conduct of

the boarding camp; that within 30 days after the completion of the work and its acceptance by the city, respondent filed with the city clerk a notice of its claim for the value of the meats, provisions, and supplies so furBausman & Kelleher, of Seattle, for appel-nished, and that no part thereof has been lant. Ryan & Desmond, of Seattle, for re- paid. Copies of the two separate contracts, spondent.

CROW, J. Action by Carstens Packing Company, a corporation, against L. G. McGuire and F. W. McGuire, copartners, as principals, and Empire State Surety Company, a corporation, as surety, to recover the purchase price of provisions and supplies sold. The McGuire Bros. defaulted.. The surety company interposed a demurrer to the complaint, which was overruled. Thereupon it refused to plead further, and it now appeals from a judgment entered against it for the amount claimed.

the two separate bonds, and the notice of claim filed with the city clerk under section 1161, Rem. & Bal. Code, were attached to the complaint, and, by proper allegations, were made a part thereof. Omitting formal parts, the notice which was directed to the city and the appellant surety company reads

as follows:

tion, holding a claim against McGuire Bros., "The Carstens Packing Company, a corporacontractors doing public work in the city of Anacortes, Wash., in local improvement districts Nos. 77, 78, and 80, in the amount of five hundred and twenty-six and 15/100 ($526.15) dollars, for supplies furnished the said McGuire Bros. for the carrying on of the said contract, herewith gives notice of its said claim against the said McGuire Bros., the city of Anacortes, and the bond filed by said McGuire Bros."

The action is predicated upon two surety bonds, alleged to have been given in compliance with the requirements of sections 1159 1161, Rem. & Bal. Code, and the only question presented is whether the complaint It will be noticed that two separate constates a cause of action against the surety company. Respondent in one cause of action, tracts are alleged in the complaint, one for in substance, alleged that, on September 25, improvement district 77, and one for im1911, and on October 23, 1911, the defend-provement district 80; that separate bonds ants McGuire Bros., for a valuable considera- were written to secure the performance of tion, entered into two written contracts with these several contracts; that three improvethe city of Anacortes, whereby they con- ment districts numbered 77, 78, and 80 are tracted to grade and improve certain streets mentioned in the notice of claim filed with in districts known as improvement district 77 the city clerk, and that neither the notice and improvement district 80, respectively; nor the complaint segregates the value of that they completed the contracts; that at meats, provisions, and supplies furnished on the time of the execution of the contracts the account of one district from those furnished defendants McGuire Bros., as principals, and on account of another. Appellant insists the appellant Empire State Surety Company, that the complaint is insufficient, for the reaas surety, to secure the city and for the pur- son that the notice of claim embraces three pose of protecting it against claims for labor, separate local improvement districts and material, and supplies furnished to McGuire makes a single claim against "the bond," not Bros., executed and delivered to the city their bonds, for $526.15, while the complaint altwo certain bonds of indemnity in the sum leges that supplies were furnished on account of $8,432.25 on district 77, and in the sum of of two contracts in districts 77 and 80, there$9,300 on district 80, which bonds were sever- by making the claim and complaint too inally conditioned that the defendants McGuire definite for enforcement; and that the reBros. would faithfully perform the provisions spondent has failed to segregate the items of their respective contracts and pay all lab- furnished under the various contracts, or to orers, mechanics, subcontractors, and materi- state the amounts claimed against the realmen, and all persons furnishing the con- spective bonds. tractors with provisions and supplies for the carrying on of the work under the contracts; that the grading and improvement under the several contracts was carried on by McGuire Bros. simultaneously; that in their work and

The controlling question before us is whether the notice of appellant's claim is sufficient to sustain its alleged cause of action. As above stated, the notice sets forth three contracts, but specifies one bond only. There

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The judgment is reversed, and the cause remanded, with instructions to sustain the demurrer.

CHADWICK, ELLIS, and MAIN, JJ., con

cur.

(84 Wash. 485)

STATE v. SNYDER. (No. 12437.) (Supreme Court of Washington. March 22, 1915.)

64—COMPETENCY-DIVORCED

is no apparent method by which we can de- | tainly could not be held for such supplies. termine whether the supplies were furnished We are compelled to hold the notice of claim for all three of the contracts, for two, or for filed with the city was insufficient, and that one, or what proportion was furnished to the complaint failed to state a cause of acany one. The notice of claim says the sup- tion. plies were furnished for the carrying on of "said contract," but fails to indicate which contract is meant. The bonds mentioned in the complaint were separate, and were given to secure the performance of separate contracts. It is apparent that a cause of action cannot arise upon one bond for supplies and materials furnished to aid in the performance of a contract secured by another bond. It is impossible to determine from the notice of claim what proportion of the supplies respondent claims was furnished towards 1. WITNESSES SPOUSES. the performance of the contract for district 77, what for district 78, or what for district SO. It would seem that the notice, although in substantially statutory form, in view of the several bonds pleaded, is so vague, indefinite, and uncertain in its terms and recitals that it cannot be held to constitute a compliance with the Requirements of the statute. A notice of claim under contracts such as these is quite analogous to the claim of a materialman under the mechanic's lien law. A lien notice under the latter statute must be sufficiently definite to enable the court to determine the particular property upon which the lien is claimed, and the amount of material supplied and used. In Sarginson v. Turner Investment Co., 69 Wash. 234, 124 Pac. 379, the plaintiff sought

to foreclose a single lien for labor and materials furnished toward the construction of four separate dwelling houses. It appeared that the claimant did not keep separate accounts with these buildings, but that he sought to enforce a single lien against all four houses. We held this could not be done because of his failure to segregate the specific amount of materials furnished towards and used in each building.

If respondent can present one general notice of claim for supplies furnished towards the fulfillment of two separate contracts without segregation, and can thereby enforce a liability against a surety upon two separate bonds given to secure such contracts, there is no reason why it could not enforce a single claim on account of 20 or more construction contracts, the performance of which was secured by a like number of separate bonds. The notice of claim indicates that some of the supplies might have been furnished on contract 78. It neither appears from the notice nor from the complaint whether any bond was given to secure the performance of that contract. The presumption is that such a bond was given, but there can be no presumption that appellant was surety upon that bond. If any of the supplies were used in the performance of that contract, the bond executed by appellant cer

Under Rem. & Bal. Code, § 1214, providing that husband or wife shall not be examined as a witness against the other without consent of the other, nor shall either, during marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage, as to matters occurring during the marriage, not constituting such a communication, a divorced wife is a competent witness against her former husband. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 180, 181; Dec. Dig. 64.] 2. WITNESSES 190 - COMPETENCY VORCED SPOUSES "ANY COMMUNICATION. "Any communication" by husband or wife der Rem. & Bal. Code, § 1214, neither is a comto the other during marriage, as to which unpetent witness against the other after divorce, is a confidential communication, or such as is induced by the marriage relation. Cent. Dig. § 737; Dec. Dig. 190. [Ed. Note.-For other cases, see Witnesses, For other definitions, see Words and Phrases, First and Second Series, Any.]

Department 2.

Dr

Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge.

James A. Snyder was convicted, and appeals. Affirmed.

O. O. Felkner, of Ellensburg, for appellant. F. A. Kern and Newton Henton, both of Ellensburg, for the State.

MAIN, J. The defendant in this case was, on the 1st day of November, 1913, by information charged with the crime of unlawfully, feloniously, carnally knowing a certain female child under the age of 15 years, and not the wife of the defendant. In the information the crime is alleged to have been committed on or about the 1st day of June, 1911. To the information the defendant pleaded not guilty. The jury returned a verdict of guilty as charged. A motion for a new trial being made and overruled, judgment was entered upon the verdict and sentence imposed. From this judgment and sentence the appeal is prosecuted.

The female child mentioned in the information was the stepdaughter of the defendant; the mother of the child was his then wife. Subsequent to the time when the

A person not controlling or contributing to the act of another causing the arrest and prosecution of a third person is not liable to the third person for false imprisonment or malicious prosecution.

crime is alleged to have been committed, and [2. FALSE IMPRISONMENT 15 MALICIOUS prior to the date of the trial, the wife of PROSECUTION 42-PARTIES LIABLE. the defendant had been divorced from him. Upon the trial, and over the objection of the defendant, the divorced wife was permitted to testify to certain corroborative acts and facts. At the time when the crime was comprisonment, Cent. Dig. §§ 5-67; Dec. Dig, [Ed. Note. For other cases, see False Immitted, the law making corroboration neces- 15; Malicious Prosecution, Cent. Dig. §§ 83-86; sary in cases of this character had not been Dec. Dig. 42.] repealed. Laws of 1913, c. 100, p. 298.

The facts in this case, as shown by the testimony of the witnesses on behalf of the state, are of such a revolting character that they will not here be further detailed.

[1] The principal question in the case is whether a divorced wife can testify against her former husband as to facts or acts occurring during the marriage relation. The statute (Rem. & Bal. Code, § 1214), after providing that the husband shall not be examined for or against his wife as a witness without the consent of the wife, nor the wife for or against the husband without the consent of the husband, continues:

"Nor shall either, during marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during marriage."

Under this statute the divorced wife was a competent witness against the appellant, except as to communications made by one to the other during the marriage. State v. Nelson, 39 Wash. 221, 81 Pac. 721.

[2] "Any communication," as mentioned in the statute means confidential communications, or such as are induced by the marriage relation. Sackman V. Thomas, 24 Wash. 660, 64 Pac. 819; In re Van Alstine's Estate, 26 Utah, 193, 72 Pac. 942; 4 Wigmore, Evidence, p. 3263. The acts and facts testified to by the former wife were in no sense confidential communications, or such as were induced by the marriage relation. One fact to which she testified was that on a certain occasion she found her then husband in the act of sexual intercourse with her daughter, the complaining witness.

The other questions presented in the appellant's brief have been considered, but in none of them is there substantial merit. The judgment will be affirmed.

3. MALICIOUS PROSECUTION 18- PARTIES LIABLE "LARCENY"-"OWNER."

order of the referee took possession of a wagon Where a trustee in bankruptcy under an of the bankrupt claimed by the latter to be exempt, and finally so adjudged, and thereafter the bankrupt retook the wagon, the trustee rupt for larceny under Laws 1909, p. 997, § causing the arrest and prosecution of the bank349, defining larceny as the taking of property with intent to deprive the owner thereof, and person who has a general or special property section 51, subd. 16, defining an owner as any or lawful possession, was not liable for malicious prosecution; there being sufficient to sustain defense of probable cause under Rem. & Bal. Code, §§ 2601, 2605.

[Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 23, 24, 29-38; Dec. Dig. 18.

For other definitions, see Words and Phrases, First and Second Series, Larceny; Owner.] Department 1. Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Action by E. M. Prentiss and wife against Otto Bogart and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

C. H. Graves, of Everett, for appellants. Stiger & Dally, of Everett, for respondents.

CHADWICK, J. Many facts are brought into this case by counsel, but from the view we take of it it will not be necessary to recite all of their troubles. It is enough to say that appellant Prentiss-who will be referred to as appellant-being indebted to the Park Place Produce Company, and being subjected to legal process for the collection of their debt, made a voluntary assignment in bankruptcy. Part of his personal property consisted of a wagon. This he claimed to be exempt. The referee in bankruptcy held it to be not exempt. The trustee in bankruptcy, the respondent E. P. Walker, demanded possession of the wagon on the evening of

MORRIS, C. J., and FULLERTON, CROW, the 24th of June. Possession being refused, and ELLIS, JJ., concur.

(84 Wash. 481)

、

PRENTISS et ux. v. BOGART et al. (No. 12373.) (Supreme Court of Washington. March 22, 1915.)

1. HUSBAND AND WIFE102-MISCONDUCT OF HUSBAND-LIABILITY OF WIFE.

A wife is not liable for malicious prosecution and false imprisonment based on the act of her husband procuring the arrest and prosecution of the party complaining.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 378-380; Dec. Dig. 102.]

under the advice of counsel and upon the theory that the goods were exempt, the trustee took manual possession, and left the wagon at or near the place of the Park Place Produce Company. At about 6 o'clock on the next evening it was discovered standing in the road by appellant. About 11 o'clock that night appellant hitched his team to the wagon and took it away. On the next morning the trustee again demanded possession. Appellant refused to surrender the wagon to caused a charge of petit larceny to be lodged the trustee, whereupon respondent Walker against appellant. He was arrested, tried

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"Larceny" is defined as the taking of property with intent to deprive or defraud the owner thereof. Laws 1909, § 349. An "owner" is any person who has a general or spe-in cial property in the whole or any part thereof or the lawful possession either actual or constructive. Laws 1909, § 51, par. 16.

At the time the trustee took possession of the property under the ruling of the referee,