the case upon a theory not covered by the pleadings, and which was not an issue in the case. It will be observed that this last-mentioned case was tried out in this court upon the question as to whether the canal, over which there was a bridge in a dangerous and unsafe condition, thereby became a public nuisance to the extent that the company was legally bound to rebuild the bridge. As stated above, this question was not raised by the pleadings, and for these reasons the said case cannot be considered an authority in the cause now before us. However, we think that the said case, in so far as the same may conflict with the views herein expressed, should be and the same is hereby overruled. It follows that the judgment of the district court must be reversed, with costs to the appellant. The case is remanded, with direction to take such further action as may be necessary, and in harmony with the views herein expressed.

trict, pursuant to the act of March 20, 1895 (Laws 1895, c. 117) and the acts amendatory thereof (Laws 1905, c. 87; Laws 1907, c. 95). Rem. & Bal. Code, § 4091 et seq. Thereafter the dike commissioners began proceedings looking to the construction of a system of dikes. To that end they filed a petition in the superior court of Stevens county, praying for the condemnation and appropriation of a right of way for a dike, and for an assessment upon the lands benefited by the construction of the dike to pay for the right of way and the costs of such construction. All of the property holders of the district were made parties to the proceedings and duly served with summons, and such proceedings were thereafter had as to result in a judgment of condemnation of a right of way for the construction of a dike, and an assessment upon the property within the district benefited by the improvement to pay the value thereof and the costs of constructing the dike. From these orders and judgments, F. H. McLeish and Charlotte McLeish, Henry Bauer, and Frank Winchester, freeholders residing within the (63 Wash. 351) diking district, and having property affected CALISPEL DIKING DIST. NO. 1 OF STE- by the construction of the dike, gave notice VENS COUNTY v. McLEISH et al. of appeal, the body of which was as follows: (Supreme Court of Washington. May 10, 1911.) "You, and each of you, are hereby notified DRAINS (§ 82*) - ESTABLISHMENT PROCEED-that the above-named defendants, F. H. McINGS APPEAL-QUESTIONS REVIEWABLE. Leish, Charlotte McLeish, Frank Winchester. Under Rem. & Bal. Code, § 4107, authoriz- and Henry Bauer, appeal to the Supreme ing an appeal from any judgment for damages Court of the state of Washington from that or assessment of benefits in drainage proceedings, and providing that such appeal shall bring certain order of the court made and enterup the justness of the damages and assessment, ed in the above-entitled cause on the 7th the court on appeal from the condemnation of day of March, 1910, and from the whole land for right of way for a dyke, and a judg- thereof, and also appeal from that certain ment confirming the assessment, cannot, in the absence of any objection to the amount of dam- judgment made and entered in the aboveages or assessment, review the regularity of the entitled cause on the 12th day of March, organization of the district and of the proceed- 1910, and from the whole thereof." ings leading up to the judgments appealed from. [Ed. Note. For other cases, see Drains, Cent. Dig. $$ 84-87; Dec. Dig. § 82.*]

AILSHIE, P. J., and SULLIVAN, J., con

cur.

The appellants do not claim, either in their assignments of error or in the arguments made in support of their appeal, to be aggrieved by the judgment for damages made in their favor, or by the assessments made upon their property, but confine their assignments of error and arguments to questions going to the validity of the organization of the district, and to the regularity of

Department 1. Appeal from Superior Court, Stevens County; D. H. Carey, Judge. Proceedings by the Calispel Diking District No. 1, of Stevens County, Wash., by and through D. R. Atherton and others, commissioners of the district, to condemn land for a right of way for a dyke, and for assess-the proceedings which led up to the judgment on the lands benefited by the construction of the dyke. From judgments of condemnation, and confirming the assessment of

benefits, F. H. McLeish and others, freeholders residing within the diking district, appeal. Affirmed.

ment of condemnation and the assessment of benefits. The respondent contends that these questions cannot be brought to this court by an appeal from the judgment of condemnation and the judgment confirming the assessment of benefits, but insist that they must

Skuse & Morrill, for appellants. R. L. be brought before this court by a writ of Edmiston, for respondent.

FULLERTON, J. In the latter part of the year 1908, certain freeholders residing in a portion of Stevens county requiring diking organized a diking district composed of such territory, and elected three "dike commissioners" to manage the affairs of the dis

review, if the questions are reviewable at all, arguing that an appeal only brings before the court the "justness of the amount of damage or the assessment of benefits in respect to the parties to the appeal."

It is our opinion that this objection is well taken. The provision of the diking statutes relating to appeals reads as fol

lows: "Every person or corporation feeling | 3. TRIAL (§ 404*)-FINDINGS-CONSTRUCTION. himself or itself aggrieved by any judgment for damages or any assessment of benefits provided in this chapter, may appeal to the Supreme Court of the state within thirty days after the entry of the judgment, and such appeal shall bring before the Supreme Court the propriety and justness of the amount of damages or assessment of benefit in respect to the parties to the appeal. Upon such appeal no bonds shall be required and no stay shall be allowed." Section 4107, Rem. & Bal. Code.

In Western American Co. v. St. Ann Co., 22 Wash. 158, 60 Pac. 158, we held that a similar provision in the general statute relating to condemnation proceedings allowed an appeal only from the "propriety and justness of the amount of damages in respect to the parties to the appeal," holding that the general statute of appeals had no application, for the reason that the condemnation statute was a special statute, and since the Legislature had allowed only a limited appeal therefrom it was equivalent to a denial of the applicability of the broader provisions of the general statute. Had the appeal been taken from the award of damages or the amount of the assessment, or had some question been made concerning them, the court perhaps would have reviewed, under the authority of the cases of State ex rel. McCormick v. Superior Court, 43 Wash. 91, 86 Pac. 205, and State ex rel. Port Townsend S. R. Co. v. Superior Ct., 44 Wash. 554, 87 Pac. 814, the question involved in the immediate procedure by which the damages were ascertained; but, since the only question sought to be raised goes to the validity of the proceedings affecting the organization of the diking district, and the judgment of condemnation, they are not reviewable on appeal.

The judgments and orders sought to be appealed from will therefore stand affirmed.

In a suit for a partnership accounting in for a boat belonging to the firm, the trial judge, a mining claim, alleged to have been received in his informal oral opinion in reciting the transaction by which the claim was acquired, stated, "And then came the following really romantic, somewhat strange circumstances that have happened for the last century in the mining camps of every western country, the trade for boat-the boat that was lying there worthless;" that he did not think that the defendant thought of whether plaintiff had any interest in it or cared; that the owner of the mining claim said "the mine is no good," and defendant said in reply, "the boat is no good, so we are even as far as that is concerned,' trade was made; that the court presumed that whereupon the defendant was glad to get rid of the boat, and that plaintiff had abandoned any idea of claimremarks were not a finding that title to the ing any interest therein. Held, that the court's boat passed from defendant.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 957-962; Dec. Dig. § 404.*] 4. APPEAL AND Error (§ 265*)—EXCEPTIONS— FINDINGS.

to statements made in an informal opinion in It was not necessary for a party to except an equitable case in order to raise on appeal questions covered by such opinion.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1536-1551; Dec. Dig. § 265.*]

En Banc. Appeal from Superior Court, King County; R. H. Lindsay, Judge pro tem.

Action by Josh R. McIntyre against E. W. Johnston and wife. From a decree for defendants, plaintiff appeals. Affirmed.

Jay C. Allen and Blaine, Tucker & Hyland, for appellant. Hughes, McMicken, Dovell & Ramsey, for respondents.

PER CURIAM. This is a suit for a partnership accounting. It is prosecuted by the plaintiff upon the theory that there was a partnership formed between him and the defendant E. W. Johnston in the year 1901 for the purpose of conducting a towing business at Nome, Alaska, and that one of the smal

DUNBAR, C. J., and MOUNT, PARKER, boats constituting a part of the partnership

and GOSE, JJ., concur.

(63 Wash. 323)

MCINTYRE v. JOHNSTON et ux. (Supreme Court of Washington. May 8, 1911.) 1. PARTNERSHIP (§ 336*) ACCOUNTING-PROCEEDINGS-SUFFICIENCY OF EVIDENCE. In a suit for a partnership accounting involving one-half interest in a mining claim claimed to have been traded by defendant for a boat belonging to the firm, evidence held to show that the boat was not traded for the

claim, but was sold upon trial, and afterwards returned by the buyer.

[Ed. Note. For other cases. see Partnership, Cent. Dig. 797; Dec. Dig. § 336.*] 2. SALES ( 204*)—Sales ON TRIAL.

Where property is sold on trial or approval, title remains in the seller until the expira

tion of the time limited for trial.

[Ed. Note.-For other cases, see Sales, Cent. Dig. 88 557, 558; Dec. Dig. § 204.*]

property was traded by Johnston for a certain placer mining claim situated near Nome in the summer of 1904, resulting in the claim becoming the property of the partnership. While the suit was for a general partnership accounting, there is, as we understand the controversy, nothing here involved but the right of the plaintiff to an accounting from the defendant for a one-half interest in the claim, or rather the proceeds thereof. From a decree denying the relief prayed for, the plaintiff has appealed.

In the spring of 1901, appellant owned the hull of a small boat at Tacoma, in which he proposed placing power, fitting it for use as a towboat at Nome. At that time he entered into an arrangement with Johnston, by which Johnston was to furnish the means for installing the power in the boat, consisting of two gasoline engines, and also means for the

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

transportation of the boat to Nome. By this [ amount of the investment Johnston had in arrangement Johnston was also to furnish the boats. Later one of these boats was means for the transportation of appellant burned on the beach some distance from and his family to Nome. Johnston was not Nome, and thereafter her engine was recovto be actively engaged in the operation of ered by Johnston. It seems clear that there the boat, but its operation was to be carried was no pretense of carrying on the business on by appellant, who was to be paid a sal contemplated by the partnership agreement ary therefor from the earnings of the boat after the summer of 1901, or, in any event, before the division of any profits. When the not after the summer of 1902. Johnston boat arrived at Nome ready for its proposed seems to have exercised entire control and use in the summer of 1901, Johnston had ad- ownership over the two Pup boats after that, vanced means towards the enterprise a great and appellant seems to have exercised owndeal more in amount than appellant had; ership over the hull of the first boat, at least and it was understood that Johnston should it was stored close to his place of business be repaid the excess he had put into the en- at Nome, and was later sold by his repreterprise over what appellant had put in. sentative there, and no account made thereThis excess was first to be repaid to John- for to Johnston. Neither has Johnston ever ston from the net earnings of the boat, and accounted to appellant for the Pup boats. thereafter the net earnings were to be di- There does not seem to have been any formal vided equally between appellant and John- accounting of the partnership affairs nor ston, and each was to be considered as own any formal agreement for division of the ing equal shares in the boat. This under- partnership property. It seems highly probstanding was not reduced to writing, and able from the record that Johnston has at was loosely entered into. Some contention all times had considerably more invested in is made that the arrangement then entered the enterprise than appellant. In the fall of into did not in law amount to a partnership 1901 appellant appears to have been conagreement. We will not attempt to solve ducting a storage business at Nome, and he that problem, nor have we attempted to state then received for storage from Johnston one what the understanding of the parties was dynamo, and one box of tools, part of the with any great degree of accuracy; but will apparel of one or the other of these Pup assume that they did then enter into part- boats. He gave Johnston a receipt for these, nership relations substantially upon the indicating that he regarded them as Johnterms we have indicated. Upon appellant ston's property. In the summer of 1902, apattempting to operate the boat at Nome, it pellant, with a partner, was conducting a proved to be practically worthless for the machinery and storage business at Nome unpurpose intended, and it was unable to earn der the name of Josh R. McIntyre & Co. anything of any consequence. Indeed, it is They then performed mechanical work upon very doubtful as to whether or not it ever one or possibly both of these Pup boats for earned sufficient to pay the expense of oper- which appellant collected from Johnston the ation. In July, 1901, the boat ceased to entire amount charged therefor, amounting be used in the partnership business; both to $141.38, appellant receipting payment appellant and Johnston assenting thereto. therefor in his own name. These are among Thereafter there was acquired at the ex- the circumstances indicating the termination pense of Johnston two other small boats, in of partnership relations between appellant each of which was placed one of the engines and Johnston, and that appellant regarded taken from the first boat. The installing of Johnston as the owner of the Pup boats. In these engines was also done at Johnston's the summer of 1904 Johnston was offered expense. The boats were given the names the mining claim in question for $150. There of "Pup No. 1," and "Pup No. 2." The is some controversy as to who offered the earning power of these boats proved no bet- | claim to Johnston, and as to who negotiated ter than that of the first boat. In the fall the deal with him by which he acquired title of 1901 one of these boats was tied to a to the claim in the name of his wife. Howschooner anchored at Nome, and during a ever this may be, it is plain that whoever storm the schooner was obliged to put to Johnston made this deal with had the ausea, carrying the small boat with her. This thority to do so either as the owner or repsmall boat eventually fell into the hands of resentative of the owners of the claim. a United States marshal at Dutch Harbor, Johnston testified to the bargain then made and was sold. The following spring, 1902, relative to the consideration for the claim Johnston recovered this boat at Dutch Har- and the return of the boat as follows: "Q. bor while on his way north from Seattle to At the time you made the trade of the Pup Nome, put it on board ship, and carried it for the mining claim, or the interest in the back to Nome. It might well be argued that mining claim, explain to the court the condithe circumstances under which he recovered tions under which the trade was made and this boat resulted in its becoming his prop- what guaranty you had to give, if any, pererty, regardless of any partnership relations taining to the boat? A. They wanted $150 between him and appellant. In any event, for the claim, and then we got talking about the recovery of the boat was accomplished at the boat, and I said, 'I will trade you the

FULLERTON, J. On February 15, 1897, the appellants, who are husband and wife, Former judg-executed and delivered to the respondent J. M. Griffith a mortgage upon certain real property situated in Whatcom county, to secure the payment of the sum of $4,800, with interest, six months from date. The debt evidenced by the mortgage was not paid at maturity, and proceedings were instituted to foreclose the same on November 3, 1897. Summons on the complaint was duly