[3] Appellant next argues that, because the parties had agreed to a property settlement prior to the time of the divorce, the order to pay alimony avoided that settlement. Even if there was a settlement of the property interests of the parties prior to the bringing of the action for divorce, the court, under section 988, Rem. Code, had authority to make, and by attachment enforce, orders for the welfare of the children.

to the county jail until the order is complied with. It appears that in the year 1917 the appellant brought an action in the superior court of Spokane county to procure a divorce from the respondent. The respondent appeared in that action and procured an order requiring the appellant to pay into court the sum of $50 for suit money and $15 per month for the support of a minor daughter. The appellant paid the suit money and thereafter refused to pay the alimony. Subsequently, on application of the respondent, the court entered an order requiring the appellant to appear and show cause why he should not be punished for contempt for failure to comply with the order to pay alimony. Appellant appeared to that show-cause order, a hearing was had upon oral evidence, and the court adjudged the appellant in contempt SILLMAN v. SPOKANE SAVINGS & LOAN

and ordered him committed to the county jail until the sum of $75 alimony was paid. [1] The appellant argues that the court was without jurisdiction to enter the order for contempt, because the show-cause order did not run in the name of the state of Washington. He also argues, in the same connection, that the court erred in finding him guilty of contempt, because the proceeding was not a contempt proceeding. The points here raised were decided in Poland v. Poland, 63 Wash. 597, 116 Pac. 2. In that case we said: "It has long been the established practice in this state, in seeking the enforcement of alimony decrees, to entitle the proceeding in the original action, and such practice has been recognized in this court in Holcomb v. Holcomb, 53 Wash. 611, 102 Pac. 653, and Metler v. Metler, 32 Wash. 494, 73 Pac. 535."

In the case of McGill v. McGill, 67 Wash. 303, 121 Pac. 469, we said:

"It is urged that the proceeding, being for a contempt, could, under Rem. & Bal. Code, § 1054, be prosecuted only in the name of the state. It is a sufficient answer to say that this is not a proceeding for an independent contempt such as contemplated by the statute. The statutory proceeding is, in its nature, an original criminal proceeding, in which the sole subject of inquiry is the contemptuous conduct charged. The proceeding here arose in the exercise of the inherent power of a court of equity to enforce its decrees. It was in aid of the jurisdiction acquired in the original action, which continues so long as there is a minor child whose maintenance was provided for in the decree. The proceeding was, therefore, properly entitled as in the original action to which it is referable for the court's jurisdiction. This is no longer an open question."

The same was also held in In re Anderson, 97 Wash. 683, 167 Pac. 70, and in Wright v. Suydam, 79 Wash. 550, 140 Pac. 578.

[2] Appellant next argues that the court erred because there was a showing that he did not have funds and ability to pay the alimony. The order shows that it was made upon oral testimony taken at the hearing. The evidence is not brought here, and we must assume, therefore, that there was ample evidence upon which the judgment was based.

We find no error in the record. The judg ment is therefore affirmed.

MAIN, C. J., and CHADWICK, HOLCOMB, and MACKINTOSH, JJ., concur.

SOC. (No. 14776.)

(103 Wash. 619)

Where lender, in negotiating contract, said he would "expect" to write half the fire insurance, the word "expect" was used in the secondary meaning, implying demand, and not anticipation.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Expect.] Department 1. Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

Action by George Sillman against the Spokane Savings & Loan Society. From the judgment rendered, plaintiff appeals. firmed.

Af

Merritt, Lantry & Merritt, of Spokane, for appellant. Hamblen & Gilbert, of Spokane, for respondent.

FULLERTON, J. In March, 1917, the appellant, through his broker, applied to the respondent for a loan of $30,000 for a period of five years, with interest at the rate of 51⁄2 per cent. per annum. In response thereto the respondent mailed to the broker the following letter:

"Spokane, Washington, April 2, 1917. "Mr. C. H. Rogers, care Rogers & Rogers, City-Dear Sir: Regarding application for Sillman Hotel loan would state that we will make this loan for five years at 52 per cent. with the privilege of repayments from $1.000 to $5,000 on any interest-paying date. We will expect, however, to write at least one-half of the fire insurance carried on the building in our office. "Yours very truly,

"J. L. Cooper, Secretary." The appellant replied personally, his letter being as follows:

making. Here we think it plain that the word was used in its secondary sense of demand, rather than in its primary sense of anticipation. Moreover, this is the construction the appellant himself originally put upon the proposal. In his complaint, in setting forth the contract alleged to have been breached, he averred that the proposal con

original application, one of which was:
"That the defendant [respondent] should write
at least one-half of the fire insurance carried
on the building covered by said loan."

We find no error in the ruling of the trial court, and the judgment will stand affirmed.

MAIN, C. J., and MITCHELL, PARKER, and TOLMAN, JJ., concur.

(103 Wash. 622)

On April 26, 1917, the respondent, by let-tained two conditions, not contained in the ter addressed to the broker, stated that it was not in a position to make the loan, and consequently withdrew its proposition. Thereafter the appellant tendered to the respondent an abstract, showing title in himself to the hotel property proposed as security for the loan, together with a note for $30,000, and a mortgage upon the property securing the note, and demanded the completion of the agreement claimed to be evidenced by the letters before quoted. The respondent refused to comply with the demand, whereupon the appellant instituted the present action to recover in damages as for a breach of the agreement. After issue joined the action was tried to the court, who made findings and conclusions in favor of the respondent, and entered a judgment dismissing the action. The court founded its conclusion on the ground that the let-2. CHATTEL MORTGAGES 176(1)—TITLE OR ter of the appellant was not an unconditional acceptance of the proposition made by the respondent, and in consequence the respondent's proposition was subject to be withdrawn, and was withdrawn by its later letter, to which reference is made.

[1] It is our opinion that the conclusion of the court is well founded. The letter of acceptance is not an unconditional acceptance of the proposition made. The proposal includes the requirements that the respondent be permitted to write one-half of the insurance carried upon the mortgaged property, while the acceptance permits the writing of $20,000 only, and this to be done at the expiration of the existing policies. The proposal with respect to the insurance was a material part of the proposition as a whole, and the appellant, to make his acceptance binding and prevent a withdrawal of the proposition, was as much obligated to accept unconditionally that part of the proposition as he was any other of its parts.

LEE et al. v. RYZEK et al. (No. 14583.) (Supreme Court of Washington. Sept. 30,

1918.)

1. JUDGMENT 588-BAR-GROUND of ForMER RECOVERY-FRAUD.

Judgment barring action by plaintiff cannot be avoided for fraud not occurring since, nor differing from, that alleged in the action in which the judgment was rendered.

POSSESSION OF PLAINTIFF.

Action for conversion cannot be maintained

by mortgagee of the chattels, not having title,
general or special, nor possession or right of pos-
session at time of commencement of action.
3. APPEAL AND ERROR 882(21)-SUPPLE-
MENTAL TRANSCRIPT.

Appellant plaintiffs cannot complain of respondents furnishing, as supplemental to the transcript, certified copies of pleadings, orders, and judgments in other cases; the complaint specifically referring to such causes and the results therein, and stating that by such reference the same are made part of the complaint.

Department 1. Appeal from Superior Court, Franklin County; John Truax, Judge.

Suit by L. L. Lee and another against Gerard Ryzek and others. From a judgment of dismissal, plaintiffs appeal. Affirmed.

C. W. Johnson, of Pasco, for appellants. Gerard Ryzek, of Pasco, for respondents.

MITCHELL, J. By an original suit, plaintiffs seek a modification or vacation of a former judgment, so that they may now recover [2] The appellant argues that the refer- judgment on a note and foreclose a chattel ence to the insurance was not a material mortgage; and, in the event foreclosure canpart of the proposal requiring acceptance; not be had, then judgment for the value of that the word "expect" denotes anticipation, the chattels alleged to have been converted rather than demand, and hence did not re- by these defendants. The note and mortgage quire acceptance unconditionally. We can- were given by the Pasco Theater Company of not agree with this conclusion. The pri- Pasco, Wash. In two former suits in the mary meaning of the word "expect" is doubt- superior court of Franklin county this same less as the appellant construes it; but the matter has been in litigation and the same word has a secondary meaning, and its true parties involved, except defendant Gerard meaning in any writing, like other words Ryzek, who is now brought in for the first which may be used in varying senses, must time. One of the former suits, Lee et al. v. be determined from the context of the writ- Pasco Theater Co., was brought to this court; ing and the circumstances surrounding its the decision being reported in 93 Wash. at

appeals. Reversed, with grant a new trial.

Geo. W. Korte, of Seattle, and R. M. Dye, of Davenport, for appellant. W. E. Southard, of Wilson Creek, for respondent.

TOLMAN, J. The appellant is the owner of a railway running from Seattle through Warden, Wash., and eastward; and also of a connecting line which runs from Warden to Ruff, Wash., and other points.

instructions to waiting room upon the request or demand of the agent, and the door was locked. The respondent claims to have stood outside discussing the situation for a few moments with the other person who was ordered from the waiting room at the same time, and then to have gone to a nearby hotel, where he received shelter until about 6:30 on the same morning. The weather was cold, the temperature being at about zero, and the respondent had no overcoat; and he says he was not dressed so as to remain exposed to the cold. At about 6:30 a. m. the respondent voluntarily left the hotel, returned to the station, which was still locked, and remained there on the outside in the cold voluntarily for a considerable time before the arrival of the train upon which he was to become a passenger. He alleges that he contracted a severe cold and became sick and distressed and suffered great physical pain as a result of thus being denied shelter in the appellant's waiting room. In addition to claiming damages in the sum of $750 therefor, he asks further damages in the sum of $1,000 for mental pain and anguish suffered as a result of the alleged insulting and insolent manner in which he was ordered from the waiting room.

The respondent on January 31, 1917, purchased a ticket from the appellant's agent at Seattle, which entitled him to transportation from Seattle to Ruff, Wash. On the evening of that day he boarded one of the appellant's trains at Seattle, upon which he was carried to Warden, where it was necessary for him to change trains. The respondent arrived at Warden on the main line passenger train at about 4:15 a. m. on February 1, 1917. The train on the branch line did not leave Warden until 8 a. m. The respondent left the main line train at Warden and went into the waiting room owned and maintained by the appellant, to await the departure of the train for Ruff. At that time the appellant employed to handle its business at the station at Warden two men. The day man worked from 8 a. m. until 5 p. m., when the night man came on duty, remaining from 5 p. m. until 6:30 p. m., when the depot and waiting room were closed, and were reopened again at 11 p. m., when the night man came on duty and kept open until 4:30 a. m.; the depot being then closed until 8 a. m. These hours of duty and of keeping open the waiting room were, it is claimed by the appellant, fixed by the rules and regulations promulgated by it some time before, and which were in full force and effect, and posted on the blackboard in the waiting room, where they could readily be seen.

At about 4:30 a. m. on the morning in question, while the respondent and one other person were in the waiting room, the appellant's agent then in charge informed the respondent that he was about to close the depot and waiting room, and that the respondent would have to leave and go to the hotel. At that time there were two hotels located in Warden, one about a block from the depot, and the other about 2% blocks from the depot, both of which were kept open so that any one might enter the office; but neither had a nght clerk, and one entering the hotel would have to ring a bell provided, in order to receive attention. At the time the appellant's agent informed the respondent that he must leave the waiting room as it was to be closed the respondent claims to have shown the agent his ticket, and informed him that he was a through passenger for Ruff; though this is denied by the agent. In any event, without any force or violence of any kind, and without any insulting or abusive language or conduct upon the part of the ap

The case was tried to a jury which returned a verdict in favor of the respondent in the sum of $832. The appellant moved for judgment notwithstanding the verdict, and for a new trial, which motions being denied, the case is brought here on appeal.

[1] Under the common law, railroad companies have the right to make and enforce rules and regulations for the conduct of their business, subject only to control by the courts as to the reasonableness of such rules and regulations; and, with this limitation, a carrier of passengers has the right to make such reasonable rules and regulations as may seem fit and proper for the conduct of its business. 10 C. J. 650, and cases there cited.

[2] In this state, by statute, Rem. Code, § 8626-85, the Public Service Commission is empowered to adopt and issue rules and regulations covering, among other things, "the time that station rooms and offices shall be kept open." There is no allegation or proof that the Public Service Commission, at the time complained of, had adopted any rule covering the time when the appellant's station room at Warden should be kept open. This tends toward a presumption that the appellant's rules and customary practice with reference thereto were reasonable, and that no action by the commission was required. It follows therefore that, in order to recover in this case, the respondent must have alleged and proved that the appellant's action in closing its waiting room between the hours of 4:30 and 8 a. m. on the morning in question was unreasonable.

[3] Assuming that the complaint, liberally construed, does so charge, and that the respondent's evidence tends to so show, we

answer, the appellant should have been permitted to prove that the closing of the waiting room at the time in question was in accordance with its regularly established rule, and to offer in evidence any facts tend

ing to show the reasonableness of the rule, including the fact that the Public Service Commission had adopted no rule governing the subject; and the jury should have been given instruction No. 2 proposed by the appellant.

Action by William B. Clark and Edward V. Lockhart, copartners, doing business under the firm name and style of Clark & Lock [4] We find no evidence in the record which hart, against John B. Schwaegler and anjustifies the submission to the jury of the other. Judgment for plaintiffs, and defendquestion of whether or not the respondent ants appeal.

Affirmed.

suffered mental anguish, and was damaged H. J. Snively, of North Yakima, for appelthereby. His own testimony fails to show lants. Clark & Lockhart, of North Yakima, any violence of word or act, or any insulting for respondents. or abusive language used. We cannot hold that the mere statement by the appellant's agent, "You fellows will have to get out of here, I am going to lock up," even though respondent says: "I did not see why he should treat me like that; my feelings were hurt, and I can't hardly explain how I did feel" is sufficient to carry this question to the jury. The appellant's motion to withdraw this question from the jury should have been granted.

[5] The verdict should have been set aside as excessive upon the appellant's motion for a new trial. There is little, if any, evidence from which the jury might find that the respondent suffered loss of time or earning capacity; and a cold, even if severe, does not usually cause great suffering. The testimony in that respect shows nothing beyond the discomfort usually caused by such a condition. We can find no evidence in the case which will sustain a verdict and judgment for more than a very inconsiderable amount.

The judgment of the court below will be reversed, with instructions to grant a new

trial.

MAIN, C. J., and PARKER, MITCHELL, and FULLERTON, JJ., concur.

(104 Wash. 12)

CLARK et al. v. SCHWAEGLER et al. (No. 14753.)

(Supreme Court of Washington. Oct. 14, 1918.) 1. APPEAL AND ERROR 882(8) - MATTERS REVIEWABLE WITHDRAWAL OF OBJEC

TIONS.

PER CURIAM. Respondents recovered judgment in the court below for attorney's fees for services rendered to the appellants. It is alleged that they were employed to assist in the defense of a divorce case brought by the wife of appellant John B. Schwaegler. The parties to that case owned valuable real and personal property, and a corporation was organized to take and hold title to the real estate. The husband owned all the

stock except one share owned by the wife. The husband was president and general manager, and the wife was secretary. Both acted as trustees. The trial judge ignored the corporate entity and divided the property as though held by the husband individually, and directed that the officers of the Corporation make all necessary conveyances to carry out the provisions of his decree. The services alleged to have been rendered ran over a period from about January, 1915, until the time of settlement and division of the property between the husband and the wife, which occurred on October 30, 1916. Respondents sued on quantum meruit. Appellants defended, setting up that respondent Clark was employed to sit in the trial at $50 per day for an express purpose; that they had employed another attorney who had entire charge of the litigation and drew the pleadings and handled the case; and that no real service was rendered by the respondents.

[1, 2] Appellants assign that the court erred: (1-7) In admitting plaintiffs' Ex

Where a party withdraws objections to let-hibits I, J, K, L, O, P, and Q; (8) in denyters offered in evidence, he cannot complain of ing defendants' motion for nonsuit; and their admission. (9-10) in giving instructions Nos. 10 and 12.

EVIDENCE

COURT

2. ATTORNEY AND CLIENT 166(3)—ACTIONS The first six exhibits were letters written COMPENSATION by respondents to appellants. The following occurred at the trial:

FOR FILES. In an action by an attorney for compensation, the files in the action wherein the services were rendered are admissible to show their nature and value, although plaintiff was not the sole attorney.

3. CORPORATIONS 398 (3) - CONTRACT BY CONTROLLING STOCKHolder.

Where an attorney was employed to defend a divorce action, and the property involved was a corporation organized for the more convenient