of the latter was as full and particular as his own information. A waiver is an intentional relinquishment of a known right,-an election by one to dispense with something of value, or to forego some advantage that might be insisted upon. A waiver exists only where one with full knowledge of a material fact does or forbears to do something inconsistent with the existence of the right, or of his intention to rely upon that right. Bish. Cont. § 792. Waiver is but another name for estoppel. "It can only be invoked where the conduct of the companies has been such as to induce action in reliance upon it, and where it would operate as a fraud upon the assured if they were afterwards allowed to disavow their conduct and enforce the conditions. To a just application of this doctrine it is essential that the company sought to be estopped from denying the waiver claimed should be apprised of all the facts, of those which create the forfeiture, and of those which will necessarily influence its judgment in consenting to waive it. The holder of the policy cannot be permitted to conceal from the company an important fact, like that of the assured being in extremis, and then to claim a waiver of the forfeiture created by the act which brought the insured to that condition. To permit such concealment, and yet to give to the action of the company the same effect as though no concealment were made, would tend to sanction a fraud on the part of the policy holder, instead of protecting him against the commission of one by the company." Insurance Co. v. Wolff, 95 U. S. 326, 333, 24 L. Ed. 387, 390.

It cannot here be doubted that if the insurance company, or McCabe as its agent, had been informed of the fact, within the personal knowledge of Lord, that Cable was seriously ill with acute pneumonia, the policy would not have been delivered. It is difficult for us to believe that Lord, with that knowledge, could think he had a right to accept this policy; but, whether so or not, the concealment of the fact was a fraud upon the company. The statement made was deceptive and misleading, whatever were the intentions of Lord, and a court of equity ought not to permit the completion of the wrong. Courts of equity cannot sustain an insurance upon the life of a dying man, when the nature of his malady and the seriousness of his illness are concealed from the insurer.

It was suggested that in view of the decision of the supreme court in Farmers' Loan & Trust Co. v. Lake St. El. R. Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. Ed. 667, we should reconsider our former judgment in this case, and dismiss the bill for want of jurisdiction. We are unable to see that the decision referred to is in conflict, but whether so or not the previous judgment of this court is res judicata between these parties, and we are without authority to disturb it. In this connection, and upon the question of jurisdiction, the case of Ogden City v. Weaver, 47 C. C. A. 485, 108 Fed. 564, 567, may prove of interest.

GROSSCUP, Circuit Judge. The jurisdictional question was settled on the former appeal. Under our ruling in Supreme Lodge v.

Lloyd, 46 C. C. A. 153, 107 Fed. 70, that decision becomes a part of the law of this case. With the jurisdictional question thus out of the

way, I concur in the foregoing opinion.

The decree is affirmed.

WOODS, Circuit Judge, sat at the hearing of this cause, and concurred in the conclusion reached, but departed this life before the preparation of this opinion.

(111 Fed. 81.)

HOOVEN, OWENS & RENTSCHLER CO. v. JOHN FEATHERSTONE'S SONS et al. (two cases).

(Circuit Court of Appeals, Eighth Circuit. September 23, 1901.)

Nos. 1,470, 1,471.

1. APPEAL-DECREE FINAL-RIGHTS OF NOMINAL PARTIES UNDETERMINED. A decision which renders all the questions between the parties served or appearing in the suit res adjudicata between themselves is a final judgment, and reviewable by appeal in the circuit court of appeals, although the rights of such parties against strangers to the suit, who were named as parties in some of the papers, remain undetermined. 2. SAME

NECESSARY PARTIES.

A decree in a suit to enforce a mechanic's lien that a complainant shall take nothing by its action, and that it is entitled to no lien against a certain defendant named, is a final decision reviewable by the sole appeal of the complainant, although another necessary party, who was never served with process, and never appeared in the action, was named in the petition and summons as a defendant.

8. GENERAL DECREE THAT COMPLAINANT TAKE NOTHING BY THE ACTION NOT SUSTAINABLE BY MATTER IN ABATEMENT.

A general decree that the complainant take nothing by the suit, which does not clearly show that it rests upon some matter in abatement which prevents it from barring future actions upon the same cause, cannot be sustained by the sufficiency of the proof of such matter in abatement where there are pleas in bar in the answer, because the legal effect of such a plea is to sustain the latter pleas, and to work a complete estoppel of subsequent suits upon the same cause of action.

4. FACTS SPECIALLY FOUND-SUFFICIENCY TO WARRANT JUDGMENT REVIEWABLE WITHOUT OBJECTION.

Where the court makes a special finding of facts in an action at law, the question whether or not these facts warrant the judgment rendered thereon is always open for consideration by the appellate court on a writ of error without any objection or exception taken at the time of the entry of the judgment,

5. WRIT OF ERROR AND APPEAL PERMISSIBLE.

In cases of doubt a party may take an appeal and sue out a writ of error, and the appellate court will review the proceedings below in accordance with the rules of that method of review applicable to the nature of the case.

6. MECHANIC'S LIEN-SUIT IN EQUITY-REVIEWABLE BY APPEAL ONLY.

A suit to enforce and foreclose a mechanic's lien is a suit in equity, and the decree rendered upon it is reviewable by appeal, and not by writ of error.

7. METHODS OF REVIEW JURISDICTIONAL AND UNAFFECTED BY STATE PRAC

TICE.

The methods of review of proceedings in the federal courts fix their power and jurisdiction, and are not affected by the act of conformity, or by the practice or legislation of the states.

8. METHOD OF TRIAL MAY BE WAIVED.

One who consents to the hearing in equity of a legal cause of action or to the trial of an equitable cause of action at law is thereby estopped from successfully objecting to the method of trial in an appellate court. 9. RIGHT TO REVIEW NOT AFFECTED BY WAIVER OF METHOD OF TRIAL.

Consent to try a law suit in equity or an equitable cause of action at law constitutes no waiver of the right to review the proceedings by appeal or writ of error, as the nature of the case may demand, and the appellate court will be governed in its action by the rules applicable to the proper method of review.

10. MECHANIC'S LIEN LAWS SHOULD BE LIBERALLY CONSTRUED.

Statutes giving liens to laborers and material men should be liberally construed, because they cannot recover back their labor or material, and the improvements upon which they are placed are ordinarily enhanced by their value.

11. SAME-CLAIM-DESCRIPTION OF PROPERTY.

Any description which will enable one familiar with the locality to identify the property upon which the lien is intended to be claimed with reasonable certainty is sufficient in a claim for a lien under Rev. St. Mo. 1899, § 4203.

12. SAME CONTIGUOUS CITY LOTS COVERED BY SINGLE PLANT SUBJECT TO SINGLE LIEN.

Where one has constructed an improvement consisting of several buildings on adjoining city blocks or lots regardless of the lines, streets. and alleys among them, and has intended to use, and is actually using, the buildings as part of a single plant, so that neither the city lots nor the buildings are adapted to separate uses, all the buildings so constructed may constitute a single improvement, and the tract on which they stand may be a single lot of land, subject to a single lien under the mechanic's lien laws of Missouri (sections 4203, 4204, 4207, Rev. St. 1899). 13. SAME-CLAIM-DIFFERENT CONTRACTS.

A claim for a lien for an aggregate amount of materials furnished under contracts between different parties, and mingled together in one account, is void.

14. SAME.

A single notice or claim of lien for materials furnished to the same property under different contracts between the same parties is sufficient, and valid.

15. SAME.

A claim of a lien for an excessive amount may be sustained pro tanto if the true amount for which the lien is maintainable can be segregated from the aggregate amount claimed.

16. SAME-FIXTURES BETWEEN LIENOR AND LIENEE.

In a controversy between the claimant of a mechanic's lien and the owner of real estate upon which the property of the lienor has been placed, or between vendor and vendee, or between mortgagor and mortgagee, engines, machinery, houses, buildings, and every other thing which is essential to the particular use to which the realty is applied, or between which and the balance of the realty there is a manifest and necessary dependence, or which is intended to be and is permanently and habitually used as a part of the property constituting the real estate of the owner upon which it was placed, becomes a part of that realty. whether it can be removed without physical injury to the realty or not, however slight its physical connection with the real estate, and even when there is no actual fastening of the one to the other.

17. Same-Retention of TiTLE AS SECURITY NOT FATAL TO.

The retention by contract of title to materials furnished as security for the purchase price by the claimant of a mechanic's lien is not inconsistent with, and will not estop the vendor from enforcing, his statutory

18. SALE-DELIVERY-DESIGNATION OF PLACE NOT ACCEPTANCE NOR INCEPTION OF NEW JOURNEY.

Where an engine was to be delivered by the shipper at the city of the vendee, and when it arrived at the station there the vendee, in answer to the question of the railroad agent, "What disposition?" answered, "Send it to our plant," and it was so sent without extra charge for freight, held, that the direction of the vendee was a mere designation of the place of delivery within the original destination, and not the starting of the engine on an additional journey, and that delivery was not made until it was received at the plant.

19. MECHANIC'S LIEN NOT LOST BY DESTRUCTION OF IMPROVEMENT.

A mechanic's lien attaches to the real estate upon which the material or labor is bestowed at the time it is furnished, and is not devested or lost by the subsequent destruction of the improvement.

(Syllabus by the Court.)

In Error to and Appeal from the Circuit Court of the United States for the Western District of Missouri.

This is a suit to enforce a mechanic's lien for the balance of the purchase price of an engine. The Jacob Dold Packing Company, the respondent, was a corporation which owned and operated a packing plant in Kansas City, in the state of Missouri. On December 16, 1897, John Featherstone's Sons, a corporation, contracted to furnish to the Dold Company at Kansas City a refrigerating plant consisting of an engine and other machinery, for the sum of $18,750. The Hooven, Owens & Rentschler Company, another corporation, and the appellant here, agreed with Featherstone's Sons that it would furnish the engine for $6,001.28. It did so. The engine was incorporated with the plant of the Dold Company, and the appellant was paid $1,499.90, while a balance of $4,501.38 of the purchase price remained unpaid. The Rentschler Company filed a claim of a mechanic's lien for this balance, under the statutes of Missouri, upon certain property of the Dold Company at Kansas City in which the engine had been embodied, and brought this suit to enforce its lien. There was a decree that it was entitled to no relief, and this decree is challenged by the appeal before us. (C. C.) 99 Fed. 180.

Edwin C. Meservey (Charles W. German, on the brief), for plaintiff in error and appellant.

Samuel W. Moore (Gardiner Lathrop and Oramel W. Pratt, on the brief), for defendants in error and appellees.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The court specifically found the facts in this case, and then held as conclusions of law that the claim of lien which the appellant filed did not contain a sufficient description of the property sought to be charged to identify it, and that it contained one item, amounting to $74.35, which was furnished under a different contract from that under which the engine was provided, and for these reasons it rendered a decree that "the plaintiff is not entitled to the enforcement of its alleged mechanic's lien as against the defendant Jacob Dold Packing Company, and that the plaintiff take nothing by its action herein, and that the defendant Jacob Dold Packing Company go hence without day, and have and recover of the plaintiff its costs.' The appellant avers that these conclusions of law are erroneous, and that on this account the decree should be reversed. The Dold Com

pany maintains the correctness of these rulings of the court, and also insists that they are not here for our consideration, because: (1) The decree is not final; (2) the suit was tried below as an action at law, no objections were made to the evidence, and its sufficiency to sustain the decree was not challenged by a request that the court should hold it insufficient; and (3) the assignment of errors is alleged to be defective.

The argument in support of the position that the decree is not final runs in this way: This was a suit by the subcontractor, the Rentschler Company, against its debtor, Featherstone's Sons, and the owner of the packing plant, the Dold Company, to enforce a mechanic's lien upon the property of the respondent. The debtor, Featherstone's Sons, was named as a defendant in the petition and summons, but was never properly served with process, and never appeared in the action. It was, however, under the practice in Missouri, a necessary party to the suit, and no final decree for the complainant could be lawfully rendered without its actual or constructive presence in the proceeding. Rev. St. Mo. 1899, § 4211. It is therefore contended that the decree rendered is not final, and hence is not reviewable here, because it does not dispose of the right of the complainant to relief against Featherstone's Sons, but simply determines that it has no lien upon the property of the Dold Company. There are two reasons why this conclusion cannot be sustained. In the first place, while Featherstone's Sons is named in the petition and summons as a defendant, it has never been served with process, and has never appeared in the proceeding, so that its rights are not and cannot be affected any more by the decree than if its name had never appeared in any of the papers in the case. The proceeding is in reality up to this time a suit between the appellant and the Dold Company, so far as their rights under the present decree are concerned, as completely as though they had been the only nominal parties to it. Hence the decree which adjudges that the appellant has no lien upon the property of the latter company is a final and conclusive adjudication of that issue between them, and an effectual estoppel of the appellant from again. litigating that question with the Dold Company or its successors in interest. In legal effect upon the parties now here, in finality between them, and in right of review the suit stands as if Featherstone's Sons had never been named as parties to it, and its only nominal parties had been its only real parties, the appellant and the Dold Company. In that case the decree would have been final, and the only necessary parties to its review in this court would have been the Rentschler Company and the respondent; and this is no less true because a third corporation, that was never served with process, that never appeared, and that was never affected by the proceeding, was named as a defendant in some of the papers at the inception of the suit. The case differs from Hohorst v. Packet Co., 148 U. S. 262, 13 Sup. Ct. 590, 37 L. Ed. 443; Bank v. Smith, 156 U. S. 330, 15 Sup. Ct. 358, 39 L. Ed. 441; Baker v. Bank, 91 Fed. 449, 33 C. C. A. 570; and Railroad Co. v. Sweeney, 103 Fed. 342, 43 C. C. A. 255,-cited by counsel for respondent, in that the par