ed or naturally tending to have that effect done at or before the time at which such performance or offer may be made, and not rescinded before that time." Section 1515 reads: "A refusal by a creditor to accept performance made before an offer thereof, is equivalent to an offer and refusal unless before performance is actually due he gives notice to the debtor of his willingness to accept it." The mere act of the creditor in designating in its claim all of the notes as secured was not such an act as is described in either of these sections. The statement in the claim was not made with a view to indicating the terms upon which the pledgee would consent to return the pledged property, but was merely incidental to making the formal demand necessary, under the statute, to establish the amount of the liability of the estate. It was not an act "intended or naturally tending" to induce the debtor to omit an offer of performance; and there is nothing to show that it did, in fact, induce such omission. Both conditions must concur in order to excuse the want of a tender under subdivision 3 of section 1511. Sanford v. S. & L. Socy. (C. C.) 80 Fed. 54. Nor was it a "refusal to accept performance made before an offer thereof." In Hanson v. Slaven, 98 Cal. 377, 33 Pac. 266, it is said that "the authorities all agree that, in order to constitute an implied waiver of an offer or tender, the refusal must be explicit and positive." See, also, Herzog v. Purdy, 119 Cal. 99, 51 Pac. 27. The mere assertion, unaccompanied by any other act, of a lien greater in amount than that to which the lienor is entitled, will not dispense with the necessity of a tender. Scarfe v. Morgan, 4 M. & W. 270; Searight v. Calbraith, Fed. Cas. No. 12,585; Hoyt v. Sprague, 61 Barb. 497; Lamar v. Sheppard, 84 Ga. 561, 10 S. E. 1084; Loewenberg v. A. & L. Ry. Co., 56 Ark. 439, 19 S. W. 1051. The same considerations apply with equal force to the allegation that the defendant claims the right to apply the proceeds of the sale of the personal property and of the collection of the Robinson note to the payment of the unsecured portion of its demand. It is not alleged that this claim was ever made to plaintiff, or any one representing the estate, or that it tended to induce failure to make offer of performance. If the complaint can be regarded as setting forth a cause of action for damages by reason of the conversion of the shares of stock sold by the defendant to Mills, it is plain that said cause of action is barred by section 338, subd. 3, Code Civ. Proc. This is one of the points made by the demurrer. The complaint alleges that the unauthorized transfer and delivery to Mills took place on or about the 1st day of April, 1898. It further alleges that the value of the shares so transferred was in excess of the amount of the secured debt. Immediately upon the transfer there arose a cause of action for such excess. The complaint in question was not filed until March 31, 1902, almost four years after the transfer of the stock. Subdivision 3 of section 338, above referred to, is applicable to all cases "of unlawful taking or detaining of personal property," whatever the form of action. Lowe v. Ozmun, 137 Cal. 257, 70 Pac. 87. It makes no difference that the plaintiff seeks an accounting to determine the value of the stock so transferred. In so far as this may be regarded as an action to recover the value of such property, the gist of the action is the wrongful conversion. The accounting, if it be a proper case for an accounting at all, is merely incidental to the main purpose of the action. The nature of the right sued upon, and not the form of the action nor the relief demanded, determines the applicability of the statute of limitations under our Code. Lord v. Morris, 18 Cal. 482; Miller & Lux v. Batz, 131 Cal. 402, 63 Pac. 680; Banks v. Stockton, 149 Cal. 599, 87 Pac. 83. And it is immaterial whether equitable or legal relief is sought. Williams v. Southern Pac. Co., 150 Cal. 624, 89 Pac. 599. We are satisfied that this is not an action to recover money or other property deposited with a bank, within the meaning of section 348 of the Code of Civil Procedure. See Civ. Code, 1318 et seq. It is argued by the appellant that, even if there be no right of redemption and no cause of action for damages for the conversion of the stock, the complaint shows facts entitling the plaintiff to a money judgment for the amount received by the defendant as the proceeds of the pledged property and retained by it in excess of the amount of the secured claim. No doubt, as above suggested, the pledgor whose property has been unlawfully disposed of by the pledgee may ratify the transfer and demand the application of the proceeds on account of his debt. He may waive the tort and sue in assumpsit. So here the plaintiff is not bound to treat the sale to Mills as invalid, but may recognize and adopt such sale and the application of the proceeds made thereon. If she does so recognize it, the amount realized on such sale, together with the other sums received by the bank, would be more than sufficient to pay the entire secured debt, even if that debt included the Staacke note. We need not here decide whether plaintiff's right to receive the surplus over the amount of the secured claim, and the defendant's claim for amounts not secured, are cross-demands, which, under the provisions of section 440 of the Code of Civil Procedure, are to be "deemed compensated, so far as they equal each other." See Ainsworth v. Bank of California, 119 Cal. 470, 51 Pac. 952, 39 L. R. A. 686, 63 Am. St. Rep. 135. If they are, the total amount received by the defendant was not sufficient to pay its entire claim, and no balance is shown to be due the estate. But, assuming that section 440 does not apply, the action to recover the amount realized by the bank in excess of its secured claim must rest upon the ratification by the estate of the act of the bank in selling the property. The allegations of the complaint in this case are entirely inconsistent with the view that the plaintiff seeks, in any event, to recognize the validity of the transfer to Mills and accept its fruits. Throughout she treats the transfer as an invasion of her rights, and puts herself in the attitude of repudiating it. We cannot read into this pleading an election to accept the benefits and burdens of this transfer, when the plaintiff, who alone has the right of such election, has chosen to take the opposite stand. While an action for money had and received, based upon the theory just indicated, might lie, an assertion of the right upon which such action would be based is not within the purview of this complaint, or of the relief demanded. The prayer for general relief is to be read in the light of the facts alleged, and those facts negative any intent to count upon the transfer to Mills as a valid disposition of the property. The plaintiff, having the right to "waive the tort," has not waived it. See Whilden v. M. & P. Nat. Bank, 64 Ala. 1, 38 Am. Rep. 1; Chambers v. Lewis, 10 Abb. Prac. 206; Id., 11 Abb. Prac. 210. We do not hold that the plaintiff has by bringing this action made such an election of remedies as will bar her from proceeding against the bank for the surplus proceeds of the security. For the purposes of this case it is enough to say that she is not here so proceeding. It is argued that the complaint should be sustained as a bill in equity for an accounting of all of the transactions of the bank with reference to the security, but the accounting sought, if a case for an accounting is made, would be only incidental to the main relief sought, which is either a redemption of the property sold, or a recovery of its value. Where there can be no relief upon the main ground, the bill will not be retained for the mere purpose of having an accounting which can lead to no useful purpose. Jewett v. Bowman, 29 N. J. Eq. 175. For these reasons, we think the demurrer was properly sustained. The order sustaining the demurrer directed a dismissal of the action. The appeal is on the judgment roll without a bill of exceptions. While it may be an abuse of discretion to sustain a demurrer without leave to amend, where a cause of action is stated, and the demurrer is directed to matters of form only (Schaake v. Eagle Automatic Can Co., 135 Cal. 472, 63 Pac. 1025, 67 Pac. 759), no such abuse can on a record like the one before us, be said to be shown where the facts alleged fail to disclose any right in the plaintiff. The bar of the statute of limitations is not specified in the Code as a ground of demurrer (Code Civ. Proc. § 430), and that objection to a complaint, while required to be stated in the demurrer, must be deemed to be included within the ground of want of facts sufficient to constitute a cause of action. The demurrer GLENN COUNTY v. KLEMMER, County County Government Act 1903 (St. 1903, p. 462, c. 277) § 36, provides that up to and including January 1st of each fiscal year the board shall have no power to contract debts in any manner or for any purposes, nor to make any allowance against any funds which, with all the debts and liabilities fixed by law payable therefrom, shall exceed 70 per cent. of the auditor's estimate of the revenue for the year, except to build or repair roads and bridges which have been destroyed and made impassable, and that debts contracted contrary to this section shall be null and void. Held, that when for any and all purposes 70 per cent. of the fund has been expended, or liabilities to the amount of 70 per cent. have been incurred, no more of the fund may be expended prior to January 1st, except only for the emergency purposes enumerated, and the statute does not merely limit the ordinary expenditures before January 1st to 70 per cent. In Bank. Appeal from Superior Court, Glenn County; John F. Ellison, Judge. Action by the county of Glenn against L. J. Klemmer, as treasurer of the county of Glenn, and another, to restrain payment of money. From a judgment for plaintiff, defendants appeal. Affirmed. R. L. Clifton, Dist. Atty., and Clifton & Zumwalt, for appellants. Charles L. Donohoe and Frank Freeman, for respondent. HENSHAW, J. Section 36 of the county government act of 1903 (St. 1903, p. 402, c. 277) provides as follows: "Up to and including the first day of January in each fiscal year the board shall have no power for any purpose to contract debts or liabilities in any manner or for any purpose nor to make any allowances against any funds which, with all the debts and liabilities fixed by law payable therefrom, shall exceed seventy per cent. of the auditor's estimate of the revenue for the year, except to build or repair roads and bridges which have been destroyed or made impassable by flood or fire. And debts and liabilities contracted in any manner or for any purpose and any allowances made contrary to the provisions of this section shall be null and void and the auditor shall not draw his warrant therefor nor the treasurer pay the same." The plaintiff in this action alleged that liabilities amounting to 70 per cent. of the auditor's estimate of the funds of a certain road district had been incurred prior to January 1st of the fiscal year commencing July 1, 1904; but, notwithstanding this, that the supervisors had allowed claims against this fund accruing before January 1st in excess of the 70 per cent., and that these excess claims were not for expenses incurred in the emergency work of building or repairing roads or bridges destroyed or made impassable by flood or fire. Plaintiff further pleaded that the defendant Klemmer, as treasurer of the county, would, unless restrained, pay these claims, and the action was brought to restrain him from so doing. Defendant Hochheimer & Co., assignee of the claims which had been allowed in excess of the 70 per cent., pleaded as an affirmative defense that 40 per cent. of the 70 per cent. of claims which had been allowed were for emergency expenditures expressed in the law, and that therefore, within the contemplation of section 36, there was still 30 per cent. of the auditor's estimate available for the payment of the ordinary expenses of the repair of the roads. Defendant also demurred to the complaint; its demurrer going to the same question of law. The court overruled its demurrer, and ordered the special defense stricken from the answer, and gave judgment for plaintiff as prayed for. Thus, upon defendant's appeal, the single question presented for interpretation is the construction of section 36. Plaintiff contends that the obvious import and meaning of the .section is that when, for any and all purposes, 70 per cent. of the fund has been expended, or liabilities to the amount of 70 per cent. have been incurred, no more of the fund's money may be expended prior to January 1st, excepting only for the emergency purposes enumerated in the section. Defendant, on the other hand, contends that the section excepts from the 70 per cent. limitation any moneys which may have been expended for emergency purposes, or, phrasing it differently, that the section limits only the ordinary expenditures before January 1st to 70 per cent. of the auditor's estimate. It seems apparent that respondent's construction is the one which the language most obviously bears. If an emergency has arisen, all of the moneys may, for such emergency purposes, be expended or liabilities incurred for their expenditure, before the 1st of January; but if, for any purpose, liabilities amounting to 70 per cent. have been incurred before the 1st of January, thereafter and until the 1st of January no more moneys may be expended, saving for emergency purposes alone. If the statute had intended, as appellant insists, that all expenditures for emergency purposes should be deducted from the 70 per cent. limitation, we should look for some clearer expression of that purpose than can be found from a reading of the statute. In the absence of such expression, the more obvious interpretation must prevail-the interpretation 2. SAME. A person riding on a freight train by invitation of a brakeman, who had no authority to so invite him, is a trespasser. [Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, § 878.] 3. SAME CARE AS TO LICENSEES. A railroad owes to a licensee, riding on its freight train, the duty to exercise reasonable care to avoid injuring him. [Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, § 879.] 4. SAME-ACTIONS FOR INJURIES-QUESTIONS FOR JURY. a In an action against a railroad to recover for personal injuries to a boy riding on freight train, evidence held insufficient to take the question of defendant's negligence to the jury. [Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 918-920.] Appeal from Superior Court, Snohomish County; W. W. Black, Judge. Action by Eugene Johnson, by guardian ad litem, against the Great Northern Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed and dismissed. L. C. Gilman, M. J. Gordon, and R. C. Saunders, for appellant Great Northern Ry. Co. Ballinger, Ronald, Battle & Tennant, for appellants O'Day and others. John E. Humphries and George B. Cole, for respondent. MOUNT, J. Action for personal injuries. Plaintiff recovered a verdict and judgment for $10,000. Defendants have appealed. At the trial of the cause the defendants moved for a directed verdict. Their motion was denied, and they stood upon the evidence on the part of the plaintiff. After verdict the defendants moved for a judgment notwithstanding the verdict. This motion was denied, and a judgment was entered upon the verdict. The facts are therefore undisputed, and are as follows: On the 1st day of June, 1906, the respondent, Eugene Johnson, was 14 years and 9 months of age. He weighed from 98 to 100 pounds. He resided with his parents in the city of Everett. His father was an architect, and his home surroundings were comfortable. He began going to school at the age of 6 years, and from that time to the date above stated had attended with about the same regularity as other boys of his age; had kept up with his classes, and passed his examinations at the ends of the years. During vacation periods he had worked at a drug store off and on for the period of 2 or 3 years, and had worked as usher at the theater a few times. The residence of his parents was situated about two blocks from the railroad tracks, and he was accustomed to seeing trains. On the date stated the appellant the Great Northern Railway Company was operating a switching train, consisting of about 40 cars, which were being moved out through its yards in Everett to a smelter a distance of two or three miles. This train was in charge of the appellant O'Day, who was a switch foreman acting as conductor. The appellant Kassebaum was employed thereon as rear brakeman. His duties required him to be on, and look out for, the rear end of the train. There was another brakeman by the name of Lynch, whose duties required him to be on the front end of the train. He was at his post. The proper and usual place for the conductor was on the footboard of the engine. He was at his post at the time referred to. The train was a loaded train, consisting of box cars, flat cars, and other cars. It had no caboose or passenger cars attached, and was not designed to carry passengers. The rear car was a flat car. Respondent called it a "gondola" car. While the train was moving through the yards at Everett, the respondent, Eugene Johnson, in company with a boy about his own age, approached the brakeman, Kassebaum, who was sitting on the rear of the rear car, and asked permission to ride. Kassebaum nodded his head, which the boys took to be an affirmative answer, and they caught the train and climbed onto the car with Kassebaum. They rode with him about a mile, to a point known as "Blackman's Mill," where the boys got off the car onto the ground and proceeded to walk along the track toward the front end of the train. When about the middle of the train they discovered four other boys on a load of lumber. They then again climbed onto the train and joined the other boys, who were hiding from the train crew. There they played a game of cards, until after the train started, and until the train ran within a couple of blocks of the smelter yards, where they knew it was going to stop. The respondent then, in company with the other boys, climbed onto the top of the box cars and walked forward thereon, looking for a place to alight. In going forward over the tops of the cars, they came to a car loaded with lumber. Two or three of the boys jumped onto this car of lumber, and respondent attempted to do the same; but in some manner he slipped and fell between the cars. The train was moving about four miles per hour, and the wheels of one of the cars ran over and crushed both his feet. It was not shown that the brakeman, Kassebaum, or any of the train crew, knew that the boys were on the train after it left Blackman's Mill, or that the boys intended to go any further. The boys did not see any of the crew, and none of the crew saw the boys, after the train left the mill and until after the accident. All the boys, except the respondent, knew that they were not allowed on the train. It does not appear that O'Day, the conductor, had any knowledge whatever that the boys were on the train, and it does not appear that Kassebaum knew where the boys were after they got off the train at Blackman's Mill. The point of the accident was about the middle of the train, 20 car lengths from the front and rear. There was no improper handling of the train, and no negligence of any kind, except the fact that the respondent was permitted or invited to ride on the rear of the car with the brakeman as above stated. Respondent had never ridden on a freight train before, did not know it was dangerous to walk on top of the cars, or to jump from one car to the other when the train was in motion. The distance the respondent attempted to jump, from the top of the box car to the lumber car, where the lumber was not piled evenly, was about four feet. Respondent testified that he did not know it was dangerous to attempt to jump this distance. It was not shown that the brakeman, Kassebaum, had permitted the boys to walk on the tops of the cars, or that he knew they intended to do so, or that he saw them. There was some evidence that he might have seen them when the train passed a curve while they were on top of the cars. It seems quite clear from these facts that there is no evidence of negligence on the part of the defendants in this case. If the respondent was a trespasser upon the train, the appellants owed him no duty, except not to wantonly or willfully injure him. It is claimed by respondent that he was not a trespasser, because he was invited by the brakeman to ride on the rear car. It was not shown that the brakeman had any authority to invite any person to ride on the train. On the contrary, it was shown that the train was in charge of the conductor, who was upon it at his station, and that it was generally known that boys were not permitted to ride thereon. The case in this respect is similar to the case of Curtis v. Tenino Stone Quarries, 37 Wash. 355, 79 Pac. 955, where we held that a boy, who had been driven away and subsequently was invited into a dangerous place by persons unauthorized so to do, was still a trespasser. But, assuming for this case that the re spondent here was a licensee, and that the other appellants were bound by the negli gence of Kassebaum, it was the duty of the appellants then to exercise reasonable care to see that respondent was not injured. McConkey v. O. R. & N. Co., 35 Wash. 55, 76 Pac. 526. This required the appellants to do no more than an ordinarily prudent person would do under the same circumstances. The boys rode with the brakeman on the rear car until they came to Blackman's Mill. There the boys got off the train. They did not tell the brakeman that they intended to go further. The brakeman did not see them, and did not know that they were on the train after that time. He did not know where they were, and no other member of the train crew knew that the boys were about the train at all. Before any negligence could be charged against any of the defendants, it was necessary to show that they had notice that the boys were on the train, and likely to do, or were attempting to do, what they did do. None of these facts were shown. When the boys left the train at Blackman's Mill, the brakeman had a right to suppose that they would not again climb onto the cars unless something occurred to notify him otherwise. He certainly could not be held to look after their safety, when he did not know, and had no reason to know, that they were on the train. It is true the boys testified that they might have been seen by the train crew as the train passed around a curve when they were on top of the cars; but it is quite clear that it was then too late to have prevented the injury, even if the trainmen could be held to know it would occur. We see no evidence of negligence in the case sufficient to take it to the jury. Counsel for respondent devote several pages of their brief to a discussion of the rule that all questions of fact should be decided by the jury, etc. There can be no doubt about this rule; but in this case, as we have seen above, there is no question of fact. The facts are all admitted, and, being so, show no negligence of the appellants. Where there is no evidence of a controlling fact, the question is one of law for the court. The negligence in this case is wholly that of the respondent. The trial court should, therefore, have directed a judgment for the appellant. The judgment must be reversed, and the cause ordered dismissed. ever "a majority of the qualified electors of such county voting at a general election" shall so determine. Held, that the adoption of the system requires the assent of a majority of the electors voting at the election, and not a mere majority of those voting on that question. Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge. Mandamus by the state, on the relation of William T. Milliken and others, to compel the board of county commissioners of Spokane county to divide the county into townships. From an order denying the writ, the relators appeal. Affirmed. William E. Richardson and Crow & Richardson, for appellants. Richard M. Barnhart and A. J. Laughon, for respondent. MOUNT, J. This appeal is from an order of the lower court refusing to grant a writ of mandate requiring the board of county commissioners of Spokane county to divide that county into township organization. It appears from the petition of the relators that at the regular general election held in November, 1906, the board of county commissioners of Spokane county duly submitted to the voters of that county the question of adopting township organization, as provided for by the act of March 23, 1895 (Laws 1895, p. 472, c. 175). At this election the total number of votes cast in Spokane county was 11,373. The total number in favor of township organization was 3,585, and against was 820. Thereupon the board of county commissioners declined to divide the surveyed portion of the county outside of incorporated cities and towns into organized townships; whereupon this action was begun, and the trial court refused the writ upon the ground that a majority of the qualified voters voting at the general election did not vote in favor of the question. The only point in the case is whether the Constitution requires a majority of the electors voting at the election, or a majority of those voting on the question. The constitutional provision is as follows: "The Legislature shall establish a system of county government which shall be uniform throughout the state, and by general laws shall provide for township organization, under which any county may organize whenever a majority of the qualified electors of such county voting at a general election shall so determine." Const. art. 11, § 4. The act of 1895, passed pursuant to this constitutional provision, contains a provision as follows: "Should the majority of the votes cast on the question of township organization be in favor thereof, it shall be the duty of the board of county commissioners, at their next meeting after such election or as soon thereafter as practicable, to divide all the surveyed portions of the county outside of incorporated cities, towns, and villages into organized townships." Laws 1895, p. 473, c. 175, § 4. It is conceded that a majority of the votes cast |