Opinion of the Court - REAVIS, C. J. [28 Wash.

the memorandum of the name of the owner or unknown. owner may be considered directory to the officer; and this, taken in connection with the curative act declaring the omission of the name of the owner or unknown owner shall not invalidate the assessment or tax, is conclusive that the legislature, in the enactment of the law of 1895, intended that the mention of the owner was not of the substance of the listing and entry upon the assessment roll. Mr. Black, in his work on Tax Titles (§ 110), speaking of such curative statutes, says that, under these statutes it is held that the assessment roll is not vitiated by the fact that the owner's name is not mentioned, or it is not assessed to unknown owners, and of the constitutional validity of such statutes there can be little reasonable doubt; and substantial authority is mentioned to support this view. The supreme court of the United States, in Witherspoon v. Duncan, 4 Wall. 210, observes of the taxing power: The state "has the right to determine the manner of levying and collecting taxes, and can declare that the particular tract of land shall be chargeable with the taxes, no matter who is the owner, or in whose name it is assessed and advertised." The description of the premises assessed is such as would pass title, and the omission to mention the name of the owner, or to assess to an unknown owner, is not such a substantial defect as will invalidate the tax for the year 1897. It appears from the finding that two acres of the right of way of the Northern Pacific Railway Company were included in the description of the premises. Under the provisions of the statute relating to suits of this nature, the court is authorized to correct this charge. It may take the sum of the tax against the premises, and deduct therefrom an amount in the proportion that the two acres bear to the whole number in the tract. Also, with reference to the failure of the

Mar. 1902.] Opinion of the Court-REAVIS, C. J.

assessor to segregate the road districts, it would seem that, if the road tax is the same, the plaintiff is not injured, and the apportionment of the tax can be made by the treasurer. It does not appear that there was any difference in the rate levied between the different road districts.

With reference to the assessment of the improvements: in the years 1893, 1894, and 1897, the assessment of all the improvements on the tract within the limits of the eity of Sumner, including those on the tract outside the city of Sumner, upon the tract within the city, would seem to charge the realty inside the city limits with more. than its just proportion of the tax. We cannot perceive, from anything in the record, that this can be corrected. It appears that taxes are entered for the city and upon the rolls against that tract belonging to plaintiff within the city, and to which the premises outside the city are not liable, and certainly those improvements situated upon land outside the city limits are not subject to the city tax. But it cannot be ascertained from the records before the court how the proportion of the amount justly assessed upon the improvements can be ascertained, and, as the injury to plaintiff is apparent, the tax on the improvements must be held void. The school tax must be corrected, and all placed in school district No. 8.

With the exception of the amount charged on the improvements, and after the deductions for the railway right of way as directed, and the adjustment of the road tax and school tax, the taxes levied in the various years mentioned are valid; and the case is remanded to the superior court, with directions to enter a decree in accordance with this opinion. The appellant will recover the costs of the appeal.

WHITE. FULLERTON, HADLEY, ANDERS, DUNBAR, and MOUNT, JJ., concur.

[No. 4138. Decided March 24, 1902.]

BARBARA RATTELMILLER, Respondent, v. HENRIETTA M.

TRIAL

STONE, Executrix, Appellant.

REFUSAL TO STRIKE PLEADINGS- HARMLESS ERROR.

The refusal of the court to strike out a paragraph of a complaint alleging the insolvency of a bank was not prejudicial error, where such insolvency was shown without objection during the trial of the cause.

SAME ADMISSION OF EVIDENCE.

The admission in evidence of a written instrument, which is incorrectly described in plaintiff's complaint, is not error of which defendant can complain, when the instrument is properly pleaded in defendant's answer and correctly described in plaintiff's reply.

GUARANTY CONSIDERATION NON-SUIT.

In an action against a guarantor upon a certificate of deposit, the defendant is not entitled to a non-suit on the ground of want of consideration, when the certificate showed an extension of time of payment written across its face and when defendant's guaranty, which was indorsed on the back, but undated, recited that it was made for a valuable consideration, and when there was evidence of defendant's consent to the extension of time, although the proof upon the issue as to whether the guaranty or the extension was the prior act of the parties or whether they were in fact one transaction, was conflicting.

SAME INSTRUCTIONS.

In an action to recover upon a certificate of deposit from a guarantor who is alleged to have guaranteed payment in consideration of an extension being granted to the bank of issuance, where there was evidence that defendant was a managing director of the bank, and that the bank officers were attempting to obtain money for the purpose of tiding over a financial crisis, it was not error for the court to charge the jury that if they found defendant "was the managing director of the bank at the time of the extension, you have a right to consider that, along with all the other circumstances in arriving at a conclusion as to whether or not he approved or consented to the extension."

Mar. 1902.]

Opinion of the Court-DUNBAR, J.

SAME COMMENT ON EVIDENCE.

Such instruction does not violate the constitutional inhibition in relation to comments upon the testimony.

SAME PRESUMPTIONS.

Upon an issue as to whether a guaranty upon an instrument or an extension of its time of payment was first executed, it was not error for the court to charge "where the guaranty imports and recites a consideration, it raises a presumption of consideration, and would be sufficient to authorize a recovery until overcome by proof;" and the burden of proof would be upon the defendant to establish want of consideration.

SAME.

In an action against a bank director upon a guaranty of payment of a bank certificate where an extension had been granted the bank, it was not error for the court to charge "that a presumption arises, in the absence of evidence to the contrary, that a managing director of a bank has knowledge of its doings and transactions, whenever by ordinary diligence he could have acquired the same, and whether or not such presumption is satisfactorily overcome," is for the jury.

Appeal from Superior Court, Walla Walla County.Hon. ABRAHAM L. MILLER, Judge. Affirmed.

Sharpstein & Sharpstein, for appellant.

Garrecht & Dunphy and Bennett & Sinnott, for respondent.

The opinion of the court was delivered by

DUNBAR, J.—This action was commenced by plaintiff against defendant upon a claim previously rejected by her as administratrix. The action is brought upon a certificate of deposit which was as follows:

"$10,000.

No. 1,458

The Walla Walla Savings Bank. Walla Walla, Wash., Aug. 22, 1892. This bank has received from L. Rattelmiller a deposit of Ten Thousand Dollars in Gold Coin returnable 12 months from date hereof to himself or his wife or order,

Opinion of the Court-DUNBAR, J.

[28 Wash.

on surrender of this certificate properly endorsed. This deposit will bear interest at the rate of six per cent. per annum for the said 12 months and no longer.

W. H. Stine, Manager."

It had at the time of the trial an indorsement written across its face in red ink, extending the time of payment six months from maturity, signed by Rattelmiller, the depositor, and by the bank officers; and upon the back it had the following indorsement:

"For value received I hereby guarantee payment of the within note, waiving judgment, notice of non-payment, and protest.

(Signed) B. F. Stone."

Further like indorsements were made by William Stine and Milton Aldrich. It is admitted that Stone signed this guaranty, but it is claimed that it was without any consideration. The claim of the defendant is that the extension of time on the back of the note was made after the guaranty was executed, and that Stone was thereby released from liability. The plaintiff's claim is that the extension of time and the indorsement were contemporaneous, and that the one was consideration for the other. Neither the extension of time nor the guaranty bears any date. Upon the trial of the cause the jury found in favor of plaintiff. Judgment was entered, and from such judgment this appeal is taken.

It is alleged that the court erred in denying the motion made by defendant to strike out the sixth paragraph of the complaint, which was to the effect that the Walla Walla Savings Bank was insolvent. But, even if the allegation was unnecessary, no prejudice can be predicated upon it in this case; for during the trial of the cause it was shown in many instances, without objection, that the bank was insolvent.