support of the judgment, and the trial court doubtless believed it, and was influenced by it in his decision. Such conduct on the part of Palmer, and his continued neglect to pay, or offer to pay, the money, we think showed an acquiescence in the repudiation of the contract by McLeod.

"While a mere failure to pay on the day fixed will not work a forfeiture when time is not made the essence of the contract, and rigid forfeitures will never be encouraged where the delay in payment does not arise out of a desire to repudiate the contract or procrastinate payment, yet if a vendee intends to hold the contract as subsisting he must take reasonable steps to evidence his intention; and where he neglects to tender payments when due, or otherwise to perform or offer to perform agreeably to the stipulations of the contract, if the contract has been declared forfeited by the vendor, unless he can show that his failure was the result of fraud, accident or mistake, he will be presumed to have acquiesced in such repudiation of the contract by the vendor." 2 Warvelle, Vendors (1st ed.), p. 829, § 13.

The point is made by appellants that respondent can not maintain this suit, for the alleged reason that he is not in possession of the property. We think this contention cannot prevail, because of the agreement between the parties to allow the payment of rent to be suspended pending the result of this suit, and that it shall be paid to the prevailing party. The agreement, in effect, is a stipulation that the question as to who is in actual possession shall be treated as immaterial in the controversy. Moreover, the court found that the tenant in possession accepted a written lease from respondent, and its possession as tenant of respondent is the latter's possession.

The judgment is affirmed.

MOUNT, C. J., and FULLERTON and DUNBAR, JJ., con

cur.

Appeal from a judgment of the superior court for Spokane county, Belt, J. Rehearing denied.2

Post, Avery & Higgins, for appellant.

George Ladd Munn, Thayer & Belt, and Walker & Munn, for respondents.

PER CURIAM.-The petition for rehearing in this case will be denied, but as this court is not in possession of all the facts necessary to determine the equities between the parties, arising out of legal transactions in the cause since the action was commenced, all of such questions will be submitted primarily to the trial court for determination.

[No. 5420. Decided October 28, 1904.]

THE STATE OF WASHINGTON on the Relation of E. E. Martin, Plaintiff, v. SAM H. NICHOLS, Secretary of State, Defendant.3

Application to the supreme court for a writ of mandate, filed October 24, 1904. Denied.

Bryon Millett, for relator, cited Hollan v. Center, 102 Ky. 119, 43. S. W. 174.

The Attorney General, for defendant.

PER CURIAM.-This is a proceeding in mandamus, brought by the relator to compel the defendant, as secretary of state, to certify to the various county auditors of the state that the socialist party ticket, containing the names of the nominees of that party for the various state and congressional offices, is entitled to be

1Reported in 78 Pac. 299.

2NOTE-For former opinion, see, s. c., 34 Wash. 23, 74 Pac. 1004.-REP.

3Reported in 78 Pac. 1118.

placed in the third column on the official ballot to be used at the coming election.

The court is unanimously agreed that the application must be denied; but, owing to its inability to agree upon the grounds on which the conclusion can be rested, it reserves the right to state these grounds in detail at some future time, the exigencies of the case not permitting the announcement of the decision to be longer delayed.

[Nos. 5111-5114 (4 cases),

Decided November 11, 1904.]

J. M. NOLAN, Appellant, v. M. H. ARNOT, Respondent.1

Appeal from judgments of the superior court for King county, Bell, J., entered March 22, 1904. Reversed.

Roberts & Leehey, for appellant.

H. H. Eaton, for respondent.

PER CURIAM.-For the reasons assigned in case No. 5101, Nolan v. Arnot (ante p. 101), the judgments in these cases will be reversed.

[No. 4540. Decided December 29, 1904.]

HARR WAGNER, Respondent, v. M. G. ROYAL et al., as Directors of School District No. 1, of Thurston County, Respondents,

and T. N. HENRY et al., Appellants.2

Appeal from an order of the superior court for Thurston county, Linn, J., entered July 14, 1902. Affirmed.

Frank C. Owings, for appellants.

Vance & Mitchell, and Ballinger, Ronald & Battle, for respondent Harr Wagner.

PER CURIAM.-This is an appeal from an order of the superior court of Thurston county, denying the petition of the appellants for leave to intervene and become parties defendant in the above entitled action. It clearly appears from the allegations of appellants' petition, and the answer tendered therewith, that this 1Reported in 78 Pac. 1118. 2Reported in 78 Pac. 1119.

Opinion Per Curiam.

[36 Wash. cause falls within the principles recently announced by this court on the appeal of David Lincoln, intervenor, in Westland Publishing Co. v. Royal (ante p. 399), and, on the authority of that decision, and for the reasons therein stated, the order appealed from is affirmed.

[No. 4541. Decided December 29, 1904.]

RAND, MCNALLY & COMPANY, Respondent, v. M. G. ROYAL et al., as Directors of School District No. 1, of Thurston County,

Respondents, and T. N. HENRY et al., Appellants.1

Appeal from an order of the superior court for Thurston county, Linn, J., entered July 14, 1902. Affirmed.

Frank C. Owings, for appellants.

Vance & Mitchell, and Ballinger, Ronald & Battle, for respondent Rand McNally & Co.

PER CURIAM.-This is an appeal from an order of the superior court of Thurston county, denying the petition of the appellants for leave to intervene and become parties defendant in the above entitled action. It clearly appears from the allegations of appellants' petition, and the answer tendered therewith, that this cause falls within the principles recently announced by this court on the appeal of David Lincoln, intervenor, in Westland Publishing Co. v. Royal (ante p. 399), and, on the authority of that decision, and for the reasons therein stated, the order appealed from is affirmed.

1Reported in 78 Pac. 1118.

[No. 4539. Decided December 29, 1904.]

EATON & COMPANY, Respondent, v. M. G. ROYAL et al., as Directors of School District No. 1, of Thurston County, Respondents, and T. N. HENRY et al., Appellants.1

Appeal from an order of the superior court for Thurston county, Linn, J., entered February 2, 1903, denying a petition for leave to intervene. Affirmed.

Frank C. Owings, for appellants.

Vance & Mitchell, and Ballinger, Ronald & Battle, for respondent Eaton & Co.

PER CURIAM.—The plaintiff above named is the publisher of the "New Era U. S. History," which history the plaintiff alleges was, on or about May 14, 1900, adopted and prescribed by the state board of education for the use, in certain designated grades, of the common schools of the state, for the period of five years from and after September 1, 1900, and which the plaintiff on said date agreed, in and by a written instrument executed by plaintiff and said board, to furnish in sufficient quantities for the use of the schools for the said term of five years. This action was instituted by plaintiff to enjoin the defendants, as the board of directors of school district No. 1, of Thurston county, from causing or permitting to be used, in the seventh and eighth grades of the schools in said district, any history other than that published by plaintiff and required to be used in said grades by the state course of study. The defendants in their answer denied the material allegations of the complaint, and stated certain new matters as and for affirmative defenses. The plaintiff demurred to the new matters alleged in the answer, and the demurrer was sustained as to each of the affirmative defenses, except the defense that the plaintiff was not the real party in interest, as to which defense the demurrer was overruled. The record is silent as to what, if any, steps were subsequently taken in the cause by the parties thereto, but at this stage of the proceedings the appellants applied to the court for leave to intervene and become parties defendant in the suit. With their petition for leave to intervene the appellants tendered an answer to plaintiff's complaint, alleging facts identical with those 1Reported in 78 Pac. 1117.