In 10 Ruling Case Law, at page 396, this principle is announced, and a vast amount of authority cited in its support: "Hence it has been said laches in legal significance is not mere delay, but delay that works a disadvantage to another. So long as the parties are in the same condition, it matters little whether one presses a right promptly or slowly within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as an estoppel against the assertion of the right. When a court sees negligence on the one side and injury therefrom on the other it is a ground for denial of relief." See Crodle v. Dodge, supra. Upon the doctrine of equitable estoppel this court in Rowe v. James, supra, said: "The basis of all estoppel in pais is that there is one innocent party and one negligent or wrongdoing party, and the doctrine means that, when the innocent party has been induced to surrender a valuable right or to change his position to his prejudice relying upon the acts or representations of the negligent or wrongdoing party, then the latter will not be heard to assert the falsity of his acts or representations to the prejudice of the former." See, also, Carruthers v. Whitney, supra; Maxwell v. Dimond, supra. Moreover, it is elementary that where one of two innocent parties must suffer, the one whose act or neglect is responsible for the situation should bear the burden. King County v. Ferry, 5 Wash. 536, 32 Pac. 538, 19 L. R. A. 500, 34 Am. St. Rep. 880; Hunt v. Panhandle Lumber Co., 66 Wash. 645, 120 Pac. 538. In Lindsay Petroleum Co. v. Hurd, Law Rep. 5 P. C. 239, the thought underlying the doctrine of laches and equitable estoppel as applied to cases of the character of the one here under consideration is stated in this language: than this; and I think, from the nature of the inquiry, it must always be a question of more or less depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favor of granting the remedy or withholding it." After carefully weighing the equities in this case, we are convinced the balance of justice is in favor of withholding the remedy of reformation. The judgment is affirmed. ELLIS, C. J., and PARKER, MAIN, and FULLERTON, JJ., concur. MCCABE v. LINDBERG. (No. 14210.) (Supreme Court of Washington. Jan. 12, 1918.) APPEAL AND ERROR 979(2)—INSUFFICIEN- Department 2. Appeal from Superior Action by J. D. McCabe against Gustaf Govnor Teats, Leo Teats, and Ralph Teats, MORRIS, J. Appeal from an order granting a new trial upon the ground of insufficiency of the evidence to sustain the verdict. It appears that this is the second new trial granted respondent. Appellant contends that the verdict upon the first trial was set aside upon the same ground, and, asserting that the evidence upon both trials was substantially the same, questions by his appeal the right of the trial judge to enter the order now complained of. It is doubtful if the record properly presents the ground for setting aside the first verdict as insufficiency of the evidence, but we will assume that it does for the purpose of disposing of the questions presented. "The doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defense must be tried upon principles substantially equitable. Two circumstances always important in such The record on the first trial is not here. cases are the length of the delay and the nature We therefore cannot say that the evidence of the acts done during the interval, which upon both trials was substantially the same. might affect either party and cause a balance of justice or injustice in taking the one course Upon that point counsel differ in presentor the other, so far as relates to the remedy." ing the case in their briefs and arguments, In Erlanger v. New Sombrero Phosphate Co., 3 App. Cas. 1279, after quoting the above statement, Lord Blackburn said: "I have looked in vain for any authority which gives a more distinct and definite rule but, inasmuch as respondent gives a list of 12 witnesses testifying upon the second trial, none of whom appeared at the first trial, which assertion is not denied by appellant, we think we may conclude that the evidence ruling appeared proper, have set aside successive verdicts as against the weight of the evidence, or sustained the granting of two or more new trials upon the ground of the on both trials was not substantially the same, leaving for determination as the sole question the power of the lower court to grant a second new trial upon the ground of insufficiency of the evidence to justify insufficiency of the evidence to sustain the the verdict. Under our statute insufficiency of the evidence to justify the verdict, or that it is against the law, is made a ground for the granting of a new trial by the trial court. Construing this statute, we have established the rule that it vests a discretion in the trial judge in granting new trials which we will not interfere with unless it is made to appear that there has been a manifest abuse of such discretion. Thomas & Co. v. Hillis, 70 Wash. 53, 126 Pac. 62. In that case we gave it as our opinion that, while in the absence of statutory prohibition there was no limit to the number of new trials that might be granted in a cause upon proper showing, it only applied generally when errors of law were complained of, and that there was a distinction where there was only a difference of opinion between the judge and the jury on mere questions of fact. In such cases we there said: "Where a case comes to this court after a second trial, it would seem that a more positive duty is put upon us; that is, to ascertain from the whole record whether it is more probable that the court is correct in its holding than is the verdict of the jury." The reason for this limitation upon the general rule is, as stated by Shaw, C. J., in Coffin v. Phenix, etc., 15 Pick. (Mass.) 291, that after the court has aided the jury by full and precise instructions as to the principles of law applicable to the case, and given them the proper guides for determining the preponderance of the evidence and the credibility of the witnesses, and the question is one of fact concerning which reasonable minds might honestly differ, it is the province of the jury ultimately and definitely to decide the issue. "Upon them the Constitution and the laws have placed the responsibility, and upon them it must rest." Having this rule in mind, and citing the Coffin Case, the same court, in Clark v. Jenkins, 162 Mass. 397, 38 N. E. 974, said: "In this commonwealth there is no rule of law limiting the number of times that a judge may set aside a verdict as against the evidence. On the other hand, it has been recognized that in an extraordinary case the court may set aside any number of verdicts that might be returned. The fact that three successive verdicts for the plaintiff have been returned does not of itself make it the legal duty of the court to allow the last verdict to stand if unsupported by sufficient evidence." * verdict. McCann v. N. Y. & Q. C. R. R., 73 App. Div. 305, 76 N. Y. Supp. 684; Merowitz v. Muttofsky (Sup.) 134 N. Y. Supp. 588; Lacs v. James Everard's Breweries, 107 App. Div. 250, 95 N. Y. Supp. 25 (citing many cases); Gnecco v. Pederson (Sup.) 154 N. Y. Supp. 12; Perlman v. Brooklyn Heights R. Co., 78 Misc. Rep. 168, 137 N. Y. Supp. 917. In Ladwig v. Supreme Assembly, etc., 125 Minn. 72, 145 N. W. 798, the Supreme Court of Minnesota, having before it statutes and rulings similar to our own, said, in sustaining an order granting a new trial upon the ground of insufficiency of the evidence to sustain the verdict: "Conceding that both new trials were granted for insufficiency of evidence, the rule in Hicks v. Stone, 13 Minn. 434 [Gil. 398]"-that an order granting a new trial for insufficiency of the evidence will not be reversed unless the evidence is manifestly and palpably in favor of the verdict-"still applies, 'limited and qualified by the fact that there have been two concurring verdicts in favor of the plaintiff.' Park v. Electric, etc., Co., 75 Minn. 249, 77 N. W. 988. But in setting aside the second verdict 'the discretion should be exercised with caution, for there must be an end of litigation" "-citing previous cases in the same court. The precise question here involved has never been before this court, but in Morris v. Warwick, 42 Wash. 480, 85 Pac. 42, 7 Ann. Cas. 687, we distinguished our statute (section 340, Rem. Code 1915) empowering the trial court upon a challenge to the legal sufficiency of the evidence to decide as a matter of law what verdict should be found, discharge the jury, and direct judgment from the statute here involved, making insufficiency of the evidence to justify the verdict ground for granting a new trial, and in so doing said: "But it will be observed that it does not authorize the court to take the case from the jury and make a final determination of the issues substantial justice has not been done by reason itself, but that, acting on the supposition that of some mistake or inadvertence of the jury, simply gives the parties another trial. As to how often the court would be justified in granting a new trial on the same testimony in the same case is a question to be determined by the appellate court in passing upon the proper trial court. Under the theory of the law, howexercise of such discretion on the part of the ever, the ultimate decision upon the question of fact involved is the province of the jury." From these observations we think we can gather the true rule for determining the proper construction to be given statutes such The same reasoning advanced by Shaw, as ours, and that is that the power of the C. J., is employed by the Appellate Divi- trial judge to grant a new trial upon the sion of the Supreme Court of New York in ground of insufficiency of the evidence to Ridgely v. Taylor, 126 App. Div. 303, 110 justify the verdict is not limited or exhaustN. Y. Supp. 665, in sustaining the third ver- ed by the granting of one new trial, but dict in favor of the plaintiff, and yet the that this court on passing upon the discrecourts of that state, in cases where such tion of the lower courts in granting suc cessive new trials will review the whole record with a view of ascertaining "whether it is more probable that the court is correct in its holding than is the verdict of the jury," having in mind that in all jury trials the ultimate decision of every question of fact must rest with the jury, and that there must come a time when, under the constitutional guaranty of trial by jury, the verdict of the jury upon controverted questions of fact must end the litigation, each party having had the benefit of a fair hearing under the established forms of law, and the jury having been advised as to every principal of law applicable to the case. Applying this rule to the record before us, we find no clear abuse of discretion on the part of the lower court in granting a second new trial, and the order is affirmed. Council and the various unions of the city, made up of cooks, waiters, and waitresses. The plaintiff brought an action against the Cooks' Union, Local No. 33, the Waiters' Union, Local No. 239, the Waitresses' Union, Local No. 240, the Central Labor Council, and the officers, business agents, and members of those organizations, for the purpose of enjoining such picketing. The complaint alleged that: "XI. The defendant caused pickets to be stationed in front of the plaintiff's place of business and to march up and down the sidewalk in front of his said storeroom, bearing on their bodies white banners on which appear very prominently the words, 'BAASCH GERMAN LUNCH UNFAIR TO ORGANIZED LABOR' in such letters as to be legible to parties a considerable distance from said pickets as aforesaid; that said pickets begin their picketing at about 6 o'clock in the morning and continue thereat, working in shifts, until approximately 12 o'clock at night; that some ELLIS, C. J., and MOUNT, HOLCOMB, of the pickets so stationed in front of plaintiff's and CHADWICK, JJ., concur. place of business as aforesaid have frequently and from time to time approached the windows in front of the plaintiff's storeroom and made grimaces and faces at plaintiff's patrons in his place of business, and have in every way sought BAASCH v. COOKS' UNION, LOCAL NO. to annoy plaintiff and his patrons while they 33, et al. (No. 12724.) (Supreme Court of Washington. Jan. 11, 1. INJUNCTION ETING. 1918.) 118(1)-PLEADINGS-PICK In an action against labor unions for damages from and injunction against picketing, complaint held to state a cause of action. 2. INJUNCTION 129(1) COURT'S OWN MOTION. DISMISSAL ON In an action against labor unions for damages from and injunction against picketing, where the complaint showed serious damage to plaintiff's business, for which he was entitled not only to relief against its continuance or repetition, but also to damages for the financial loss occasioned by defendants' wrongful acts, it was error for the court, on its own motion, to dismiss the action on defendant's counsel's oral assurance, without filing pleading, that the picketing had been discontinued and would not be resumed, in view of Rem. Code 1915, §§ 408, 409, authorizing dismissal on abandonment of action by plaintiff; issues of fact as to damages being pending, and no challenge to the sufficiency of the complaint having been interposed. Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge. are in his place of business, as aforesaid." The complaint contained the further allegations: "XII. That a number of plaintiff's patrons have been approached by the defendants and warned not to enter the plaintiff's place of business, or have business dealings with him, and have been warned not to trade further with the plaintiff; that the defendants above named and said pickets have been engaged in attempting to cause the public to believe that plaintiff's place of business is unfair to organized labor, and have attempted to induce them by threats and covert insinuations from having any business dealings with the plaintiff; that in speaking to plaintiff's customers as aforesaid, the defendants have done so deliberately and in such a way as to cause said persons to understand that if they continue to have business dealings with plaintiff, they will thereby incur the displeasure of organized labor, and that organized labor would institute similar tactics against them if they continue to have business dealing with the plaintiff or to trade at his place of business as aforesaid, and the defendants above named intend that plaintiff's customers so spoken to by them shall understand that such threat is being made against them and each of them." "XVI. That the wages paid by the plaintiff are in all respects equal to and as high as the Action by C. F. Baasch against the Cooks' scale of wages demanded by the defendant unions; that the conditions under which the Union, Local No. 33, and others. From judg- employés are working for the plaintiff are the ment for defendants, plaintiff appeals. very best existing in that employment; that versed and remanded, with instructions. their hours of labor in all respects conform to law; that plaintiff's place of business is conBrightman, Halverstadt & Tennant, of ducted according to the most approved sanitary Seattle, for appellant. Re FULLERTON, J. The plaintiff, C. F. Baasch, owned and conducted a restaurant on Third avenue near Madison street in the city of Seattle, Wash. Because he ran what is known as an "open shop," one in which he did not require his employés to hold membership in labor unions, his place of business was subjected to picketing at the instance and under the authority of the Central Labor methods; that the plaintiffs above mentioned are all and each of them fully satisfied with their wages, hours of labor and conditions of employment, and the plaintiff desires to retain said employés and each of them in his employment because they and each of them are faithful and efficient and in all respects desirable employés." "XVIII. That the defendants above named have been and are now engaged in endeavoring to persuade the public and the plaintiff's patrons tions made by them as aforesaid, to boycott particularly, by such threats and covert insinuaplaintiff until he shall comply with the demand of the defendant unions as aforesaid, and have thereby caused a large number of plaintiff's customers who have been such for a considerable time past to remain away from plaintiff's place of business because of such actions so taken by them; that the action of the defendants is joint and concerted and so had pursuant to an agreement made between them and prior to the commencement of said actions by them with the malicious intention of injuring the plaintiff's business, and driving him out of business, or injuring plaintiff's business to such an extent that he shall be compelled to compel his employés to join the defendant unions against their will and wishes, or to discharge them from their employment; that the defendants have threatened to drive the plaintiff out of business; that they are endeavoring to carry out their threats by diverting the patronage which prior to their action had been going to plaintiff's place of business; that the defendants by their said action aforesaid have diverted a large part of plaintiff's business, and have been reducing plaintiff's daily receipts in a very large sum; that the business built up by the plaintiff as aforesaid is being driven away from him, his business is being ruined, and unless the plaintiff shall comply with the demand of the defendant unions as aforesaid, he alleges the fact to be that his business will be absolutely ruined; that it will be driven away from him and will be totally destroyed; that the detendants above named are wholly irresponsible, are insolvent, and are unable to respond in damages; that the damages suffered by the plaintiff are exceedingly difficult to ascertain because of the fact that plaintiff's business heretofore had been steadily growing and increasing until the action of the defendants above mentioned; that plaintiff has no adequate remedy at law, but is relievable only in a court of equity." The prayer was, that an injunction pendente lite should be granted to restrain such boycott and picketing; that such temporary injunction be made permanent; that plaintiff have judgment against defendants and each of them in the sum of $1,500, and such further relief as the court may deem equitable, together with his costs and disbursements. The court made a show-cause order to defendants to appear and present grounds for the refusal of the temporary injunction. On the day set for hearing, the attorney for defendants appeared and, without having filed any pleading, orally moved in open court for the dismissal of the action on his assurance to the court that the picketing had been discontinued and would not be resumed. Upon his motion for dismissal, made over the objection of the plaintiff, the court entered the following order: "And the plaintiff announced that he was ready to proceed with the hearing, at which time the said MacMahon, as attorney for the defendants, stated to the court that if the court would dismiss the action, the pickets placed and maintained by the defendants in front of the plaintiff's place of business in the city of Seattle, King county, Washington, would be withdrawn, and thereupon the court of its own motion, and over the objection and protest of the plaintiff, ordered that said action be dismissed with prejudice so long as said promise was honored, and the court being fully advised in the premises: It is ordered, adjudged, and decreed that the above-entitled action be, and the same hereby is, dismissed with prejudice so long as the defendants above named shall remove and keep removed the pickets in front of plaintiff's place of business in the city of Seattle, King county, Washington, but that upon pickets being placed in front of plaintiff's place of business as aforesaid, the plaintiff have leave to commence another action therefor, and for the causes set forth in the complaint herein." [1, 2] The plaintiff appeals from the judgment of dismissal as constituting error in law. The allegations of the complaint unquestionably state a cause of action, under the authority of St. Germain v. Bakery, etc., Union, 166 Pac. 665, and Jensen v. Cooks' & Waiters' Union, 39 Wash. 531, 81 Pac. 1069, 4 L. R. A. (N. S.) 302. The complaint showed that serious damage had been done to plaintiff's business, for which he was entitled not only to relief against its continuance or repetition, but also to damages for the financial loss occasioned by the wrongful acts of the defendants. But the court, with full knowledge of the injuries caused the plaintiff through the illegal conduct of defendants, refused the right of trial on the mere assurance of opposing counsel that his clients would discontinue their acts. Future good behavior has never been recognized as an antidote for past actions which have occasioned substantial prejudice to the complainant. Although the chief object of the action may have been the restraining of the continuance of the illegal acts, yet, conjoined with the demand for relief on that score, was the added demand for compensation for the injury were discontinued. The trial judge recoginflicted by the wrongful acts before they nized the weakness of his position by stating at the time of dismissing the action: "I may not have the right to do it. I think it is the part of wisdom and good citizenship and good morals to do it, and I will take the have no right, they can say so.' responsibility. If the Supreme Court says I We think the lower court was in error. The guide for its rulings is found in the code of legal obligations rather than in the moral code. In State ex rel. Hennessy v. Huston, 32 Wash. 154, 72 Pac. 1015, we held that a judgment of dismissal on the court's own motion, while issues of fact were pending and no challenge to the sufficiency of the complaint had been interposed, was error. Our statute (Rem. Code, § 408) authorizes dismissals of actions on the court's own motion only where the plaintiff abandons the action or fails to comply with an order of the court concerning the proceedings in the action or the making of necessary parties; that section also covers the cases in which a dismissal or nonsuit may be had upon the application of parties. Then in the following section (409) it is provided: "In every case other than those mentioned in the last section, the judgment shall be rendered on the merits." We think it plain that the action of the court was without warrant of law. The judgment is reversed and the cause remanded, with instructions to require the ING FOR ILLEGAL SALE-EVIDENCE-SUFFICIENCY. defendants to plead to the complaint; and, [ 8. INTOXICATING LIQUORS 236(7) — KEEPin default thereof, upon a hearing to award plaintiff such judgment as he may show himself entitled to. ELLIS, C. J., and MOUNT, MORRIS, and CHADWICK, JJ., concur. STATE V. BILLINGSLEY. (Supreme Court of Washington. Jan. 12, 1918.) 1. CRIMINAL LAW 419, 420(1) HEARSAY EVIDENCE-ADMISSIBILITY. In prosecution for having possession of intoxicating liquors with intent to dispose of them unlawfully, testimony of agent of wholesale drug company that he always dealt with accused for a retail drug company, that certain quantities of alcohol and cologne spirits were sold to such drug store on orders signed by accused, declaring intent to use for chemical and mechanical purposes, and coupled with complete identification of all sales not actually witnessed by him, was not inadmissible as hearsay. 2. INTOXICATING LIQUORS 233(1) EvIDENCE-DECLARATIONS IN DRUGGIST'S CERTIFICATE OF REGISTRATION. In prosecution of a druggist for unlawfully keeping intoxicating liquors, certificate of registration of drug store under Item. Code 1915, 8 8464, making declaration of ownership presumptive evidence of ownership, was not admissible; the charge being, keeping intoxicating liquors for an unlawful purpose, and not keeping the drug store for an unlawful purpose. 3. INTOXICATING LIQUORS 233(2) ILLEGALITY-EVIDENCE-ADMISSIBILITY. In prosecution for unlawfully keeping liquor at a drug store, evidence that accused also had a warehouse with paraphernalia for putting up whisky for sale, and that large quantities of whisky were found in the warehouse, is admissible as showing the intent with which accused possessed liquors at the drug store. 4. WITNESSES 270(2) CROSS-EXAMINATION-IMMATERIAL MATTERS. In prosecution for having unlawful possession of intoxicating liquors at a drug store, cross-examining a witness to show whether he noticed a certificate of registration in another's name at the drug store was improper. 5. WITNESSES 270(2) CROSS-EXAMINATION-IMMATERIAL MATTERS. In prosecution for having unlawful possession of liquors, cross-examination as to whether witness had ever heard of any sales of liquor at the location involved was improper. 6. INTOXICATING LIQUORS ~239(7)—UNLAWFUL POSSESSION-INSTRUCTIONS. In prosecution for having unlawful possession of intoxicating liquors at drug store, where accused made no effort to show that he or some one for him was a registered pharmacist, instruction defining registered druggist in accordance with Rem. Code 1915, § 8457, requiring a drug store to be operated by a registered pharmacist, was unduly favorable to the accused in view of Laws 1915, p. 4, § 7, permitting a registered druggist to sell intoxicating liquors on prescription. 7. INTOXICATING LIQUORS 169 UNLAWFUL POSSESSION-INSTRUCTIONS. In prosecution for having unlawful possession of intoxicating liquors at a drug store, requested instruction that to convict accused must be found to have been in charge of and not an employé of a store was improper; the charge being possession of liquors and not keeping the store. Evidence held to warrant conviction of having unlawful possession of intoxicating liquors. Department 2. Appeal from Superior Court, King County; John S. Jurey, Judge. Logan Billingsley was convicted of unlawfully keeping intoxicating liquors with intent unlawfully to sell or otherwise dispose of them, and he appeals. Affirmed. Walter B. Allen and Bell & Hodge, all of Seattle, for appellant. Alfred H. Lundin and Frank P. Helsell, both of Seattle, for the State. HOLCOMB, J. Tried separately from his codefendant, appellant was found guilty upon an information charging him and another with unlawfully keeping intoxicating liquors, consisting of alcohol, cologne spirits, and other intoxicating liquors, in their possession in a building at 1525 Third avenue, Seattle, on July 24, 1916, with intent unlawfully to sell, barter, exchange, furnish, and otherwise unlawfully dispose of same. At the close of the state's case appellant unsuccessfully moved for a directed verdict of not guilty upon the ground that the evidence was not sufficient to prove the charge. Upon the denial of the motion appellant offered no evidence except a certificate showing the registration of the ownership of the Night & Day Drug Store, at 1525 Third avenue, with the state board of pharmacy, which certificate was rejected. There was evidence by one Max Harrison to the effect that he was the city sales manager for Stewart & Holmes Drug Company, a wholesale drug company in Seattle; that his house had sold Logan Billingsley grain alcohol and cologne spirits; that cologne spirits is a higher grade of grain alcohol with a better odor; that the company sold the alcohol to Billingsley as the Night & Day Drug Store; that in his dealings with the Night & Day Drug Store the witness always dealt with Logan Billingsley, who told him that his name was Fred Billingsley; that the drug company between May 17th and July 21, 1916, sold to the Night & Day Drug Store 1,409 gallons of grain alcohol at about $3.05 per gallon; that when Billingsley bought alcohol from the drug company, he or some one from the store had to sign a declaration that the purchase of the alcohol was for mechanical or chemical purposes. Appellant moved that all of the testimony of Harrison, except as to the sale of two barrels of alcohol on July 21st, should be stricken from the consideration of the jury because: First, it was not shown that appellant was connected with the Night & Day Drug Store; and, second, the testimony was hearsay. The testimony of Harrison was that he never dealt with anybody but Logan Billings |