ed by any person; that it was not served upon appellant Georgie E. Grindstaff, the wife of appellant I. J. Grindstaff; and that it insufficiently describes the premises. We think that it was sufficient, under the circumstances attending its service. It follows that, were we to hold that appellants were entitled to notice, the notice which appellants admit was served was sufficient, and the instruction complained of was at most harmless error. The respondents, upon either view of the question, were entitled to a recovery. The judgment appealed from is affirmed.

1. The requirement of a policy of fire insurance, to which is attached the "mortgage clause," that suit shall be brought within 12 months after loss, is binding upon the mortgagee.

2. In an action on a contract, the court cannot adjust rights thereunder which are not asserted.

Appeal from superior court, King county; Richard Osborn, Judge.

Action by the American Building & Loan Association against the Farmers' Insurance Company. From the judgment rendered, both parties appeal. Reversed.

John P. Fay and C. H. Gest, for plaintiff. Struve, Allen, Hughes & McMicken, for defendant.

GORDON, J. On the 7th day of April, 1891, the above-named Farmers' Insurance Company, in consideration of the premium thereon duly paid, issued its policy of insurance in the sum of $1,000 upon the two-story frame lodging house of one Mrs. M. McWilliams, said property being situated in the city of Seattle. At the time when said insurance was effected, there was a mortgage upon the said property held by the abovenamed American Building & Loan Association, and at the time of issuing said policy there was indorsed upon and annexed to it the following: "Mortgage clause: (To be attached only to policies covering in whole or in part on real property.) Loss, if any, payable to the American Building and Loan Association of Minneapolis, Minnesota, mortgagee or trustee, as hereinafter provided. It being hereby understood and agreed that this insurance, as to the interest of the mortgagee or trustee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by the terms of this policy; provided, that in case the mortgagor or owner neglects or re

fuses to pay any premium due under this pol icy, then, on demand, the mortgagee or trustee shall pay the same; provided, also, that the mortgagee or trustee shall notify this company of any change of ownership or increase of hazard which shall come to his or their knowledge, and shall have permission for such change of ownership or increase of hazard duly indorsed on this policy; and provided, further, that every increase of hazard not permitted by the policy to the mortgagor or owner shall be paid for by the mortgagee or trustee on reasonable demand, and after demand made by this company, upon and refusal by the mortgagor or owner to pay according to the established schedule of rates. It is, however, understood that this company reserves the right to cancel this policy as stipulated in the printed conditions in said policy; and also to cancel this agreement on giving ten days' notice of their intention to the trustee or mortgagee named therein, and from and after the expiration of the said ten days this agreement shall be null and void. It is further agreed that, in case of any other insurance upon the property hereby insured, then this company shall not be liable under this policy for a greater portion of any loss sustained than the sum hereby insured bears to the whole amount of insurance on said property issued to or held by any party or parties having an insurable interest therein. It is also agreed that whenever this company shall pay the mortgagee or trustee any sum for loss under this policy, and shall claim that as to the mortgagor or owner no liability therefor exists, it shall at once, and to the extent of such payment, be legally subrogated to all the rights of the party to whom such payments shall be made, under any and all securities held by such party for the payment of said debt. But such subrogation shall be in subordination to the claim of said party for the balance of the debt so secured. Or said company may, at its option, pay said mortgagee or trustee the whole debt so secured, with all the interest which may have accrued thereon to the date of such payment, and shall thereupon receive from the party to whom such payment shall be made an assignment and transfer of said debt, with all securities held by such parties for the payment thereof. To be attached to policy No. 1,961 of the Farmers' Insurance Co. Apl. 7th, 1891. S. S. Waldo, Secy., per Botsford." The premises were destroyed by fire on the 7th day of August, 1891, and in October, 1892, this action was brought by said building and loan association to recover the amount of said insurance. In its complaint it alleged that the amount due upon the loan secured by said mortgage and other securities which it held at the time when said fire occurred was $1,623.40. The insurance company filed its answer, and, among other things, in its affirmative defense, pleaded "that in said policy of insurance it was expressly provided that no suit or action on said policy for the

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recovery of any claim should be sustainable in any court of law or equity, less commenced within twelve months after the fire." A demurrer was interposed to this affirmative defense, which demurrer was by the lower court sustained, and exception duly reserved. Thereafter, the cause proceeding to trial, a verdict was returned in favor of the building and loan association for the full sum of $1,000. A motion for a new trial having been made and overruled, judgment was entered upon the verdict. In entering judgment, the court, upon its own motion, incorporated therein a finding "that the amount of said verdict was in excess of the debt secured" by the mortgage held by the building association upon said premises, and directed that the defendant should, upon payment to plaintiff of the amount of the judgment, be subrogated to all rights of the plaintiff in and to securities held by it for the debt owing to it by the said Mrs. McWilliams, The building and loan association (plaintiff below), contending that any judgment other than one for the amount of the verdict was erroneous, appealed from that part which was so incorporated therein upon the court's own motion, and the insurance company (defendant below), by a cross appeal, brings to this court and assigns as error the ruling of the lower court which sustained a demurrer to its affirmative defense above noticed.

The conclusion to which we have come concerning the cross appeal disposes of this case. In Insurance Co. v. Meesman, 2 Wash. St. 459, 27 Pac. 77, this court held that a stipulation in a policy of insurance similar to that relied upon here is valid and binding, and learned counsel in this cause do not question the validity of such a provision, but insist that it is not binding upon the mortgagee. Their contention is that "there is absolutely no limitation of the time in which to bring the action in the mortgage or subrogation clause": that the mortgage clause is a separate, distinct, and valid contract between the mortgagee and the insurance company; and that it must be construed and enforced without regard to the provisions of the policy, which they contend to be applicable only as between the insurer and the insured (mortgagor); or, stated in the language of their brief: "We cannot inject into it [the mortgage clause] some other provision not contained in it; for, if one of the clauses of the contract [policy] between the insurer and insured can become part of the mortgagee's contract, all can. If one must, all must." The case of Hastings v. Insurance Co., 73 N. Y. 141, is cited and confidently relied upon by counsel for both parties in support of their respective contentions. We have therefore given that case an extended examination. In that case the defendant company issued its policy of insurance to S. upon her dwelling house. The policy contained a clause that in case of other insurance the insurer could only re

cover upon the policy its proportionate share of any loss. The plaintiff held a mortgage upon the premises, and, subsequent to the issuing of the policy, the defendant made an indorsement thereon, and annexed thereto a mortgage clause, which in all respects was similar to the mortgage clause with which we have to deal in this case (excepting only that the provision contained in the mortgage clause in this case upon the subject of "other insurance" was not contained in the clause under consideration in the case from New York). S. had other insurance upon the building, of which plaintiffs and defendant were ignorant. In an action upon the policy it was held that the mortgage clause operated as an independent insurance of the mortgagees' interest; that it gave them the same benefit as if they had taken out a separate policy, free from the conditions imposed upon the owner, and making them responsible only for their own acts; and that thereafter the clause of the policy limiting defendant's liability in case of other insurance did not apply, as the mortgagees had procured no other insurance, and plaintiffs were entitled to recover the whole of the loss, without regard to the additional insurance procured by S. Counsel for the building and loan association, in their very able brief, quote the following from the opinion in that case, and insist that it is conclusive upon the question which we are now considering: "The rules laid down in the authorities cited have no application, however, to a case where a provision has been inserted in the policy which places the mortgagee upon another and a different footing from that of a mere assignee or appointee to receive the loss. The mortgage clause was agreed upon for this very purpose, and created an independent and a new contract. which removes the mortgagees beyond the control or the effect of any act or neglect of the owner of the property, and renders such mortgagees parties who have a distinct interest, separate from the owner, embraced in another and different contract. The tendency of the recent cases is to recognize these distinctions, and thus protect the rights of the mortgagee when named in the policy, and the interest of the owner and of the mortgagee are regarded as distinct subjects of insurance." We think, on the contrary, that it does not support their construction of the clause in question. That it does not appears to us to be conclusively shown by giving the case in question further consideration. The court also held in that case that the provision of the policy making the loss payable within 60 days after due notice and proof of loss entitled the plaintiff to interest after the expiration of 60 days from the time of furnishing such proof. Hence it appears that the court did in fact interpret and enforce provisions of the policy itself. The stipulation requiring proofs of loss to be furnished is nowhere

mentioned in the indorsement or mortgage clause in that case, nor is it in the case before us. And the court further in its opinion say: "The insurance had been to the owner, and the additional provisions, which were incorporated in the policy by the mortgage clause, created a distinct contract with the mortgagees. * * The meaning of the word 'assured' has not been changed by the addition of the mortgage clause. * The just and reasonable interpretation of the provision * * is that the legal force and effect of the policy shall not be weakened or impaired. When it provides that it 'shall not be invalidated,' it means that it shall continue valid for the full amount named, despite any act or neglect of the owner or mortgagor."

*

The plaintiff in this case, under the provisions of the mortgage clause, became entitled to maintain this action, and the effect of said clause was to relieve it from the consequences of any act or neglect of the owner of the property insured, viz. Mrs. McWilliams. But we think, also, that all of the provisions of the policy continued in force, excepting only such as are inconsistent with the provisions contained in the clause annexed; in other words, that the annexation of the mortgage clause operates merely as a modification of the policy by dispensing with certain requirements, duties, and obligations which, by the terms of the policy, were imposed upon the owner, and protects the mortgagee against his (the mortgagor's) acts either of omission or commission, but that general provisions of the policy intended for the security and protection of the company, and which do not relate personally to the mortgagor, such as the stipulation concerning the time in which an action shall be brought, are not abrogated or affected by it. The mortgage clause is not a complete contract in itself, nor does it profess to be. It is, of course, conclusive upon the parties in so far as it speaks, and controls any provisions of the policy to which it is attached which are inconsistent with it; but, as a complete or entire contract, it is indefinite and uncertain. Resort must still be had to the terms of the policy to ascertain many things which are the very life of the contract; among others, the amount of the insurance, the property insured, the term of the insurance, and very many matters concerning which the indorsement itself furnishes absolutely no information whatever. The suit is based, not upon the indorsement as a complete contract, but upon the policy of which it is simply a part. It is the policy which constitutes the basis of plaintiff's right to a recovery, and it plainly and unmistakably says that "no suit or action for the recovery of any claim by virtue of this policy shall be sustainable in any court, *

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less such suit or action shall be commenced within twelve months next after the date

of the fire from which such loss shall occur." This condition is one which may be waived in many ways, but we have nothing to do with the question of waiver in this case. If facts or circumstances existed which would establish a waiver of this condition, it was the duty of the plaintiff to set them up by appropriate pleading.

We think the demurrer should have been overruled. As this conclusion necessitates a reversal of the judgment, we will not discuss the question presented by the appeal of the plaintiff, further than to say that we have examined the same, and are of the opinion that, under the pleadings, independent of the question which we have here considered, the court was not warranted in entering more than a general judgment upon the verdict. The judgment appealed from went beyond the issues, and attempted to adjust rights that were not asserted, and settle questions that were not submitted for a judicial determination. The judgment will be reversed, and the cause remanded, with instructions to overrule the demurrer to the defendant's second affirmative defense; costs to the Farmers' Insurance Company, appellant.

HOYT, C. J., and ANDERS and SCOTT, JJ., concur.

(11 Wash. 526) RINEHART v. WATSON et al. (Supreme Court of Washington. April 1, 1895.) REVIEW ON APPEAL-DISCRETION OF Court. 1. The granting of a new trial will not be disturbed on appeal unless it be shown that there was an abuse of discretion.

2. A request by respondent, that the case be remanded, with instructions to enter judgment in his favor, cannot be granted, he not having appealed.

Appeal from superior court, King county; T. J. Humes, Judge.

Action by W. V. Rinehart against Harry Watson and others for use and occupation of premises. From à judgment for plaintiff on a motion for a new trial, and setting aside a nonsuit granted, defendants appeal. Affirmed.

The following statement of facts is gathered from the briefs of appellants and respondent: March 23d defendants W. answered plaintiff's complaint: (1) That title was in B.; (2) a prior action pending. March 30th, plaintiff moved to have B. made defendant. April 8th, another answer by defendants W. was filed, and court entered an order making B. defendant. May 1st, B.'s demurrer to the complaint was overruled. May 9th, B. served an answer on plaintiff's attorney, and plaintiff's attorney claims it was afterwards stipulated that W.'s answer should stand as B.'s answer. Defendants' attorney denies signing the stipulation. May 27th, a demurrer to that answer was overruled. Leave was given to renew the de

murrer, and on June 13th a demurrer was sustained as to the first affirmative defense, and overruled as to the second. June 17th, another answer was served, purporting to be the answer of all defendants, but which now appears to have the names of "Alice and Harry Watson," two of defendants, interlined in ink, and to be their answer only. After nine days defendants joined in a motion for default against plaintiff for want of reply, which motion was overruled. The reply was filed, and the case set for trial. At the trial, defendant B. contended that there was no issue as to him, as he had never filed an answer which brought him into the controversy. It was found that there was only one answer of defendants W. in the files, and that was the answer interlined, and that neither the stipulation nor any answer of B. was on file. November 20th the case came on for trial. At the conclusion of plaintiff's testimony, defendant B. moved for judgment and nonsuit, which was granted. Thereupon defendants W. moved for judgment and nonsuit, which was granted, plaintiff having substantially confessed such motion. Thereafter plaintiff moved for a new trial, and to set aside such judgment of nonsuit, which was granted. December 20th, attorney for B. filed an answer disclaiming any interest in the case, and asking to be dismissed.

Ira Bronson, for appellants. Stratton, Lewis & Gilman and W. V. Rinehart, Jr., for respondent.

SCOTT, J. Upon the trial of this action the court granted a motion for a nonsuit, and thereafter, upon the plaintiff's motion, the judgment of nonsuit was set aside, and a new trial granted. This appeal is prosecuted from said order, appellants claiming that the court erred in vacating said judgment. The respondent contends that not only was the judgment of nonsuit properly set aside, but that the court should have gone further, and rendered judgment in his favor, and asks that the cause be remanded, with an instruction to that effect.

The granting of a new trial is a matter addressed largely to the discretion of the lower court, and, after an examination of the record, we find nothing to indicate that it was improperly exercised in this instance. The various contentions of the appellants and respondent upon this appeal are based upon the pleadings in said action, and certain defects or irregularities therein are practically conceded, but it is within the province of the lower court to permit an amendment, and as this may be done, and the cause tried on other and different pleadings, it would serve no purpose to pass upon the questions now presented thereon. We do not think the condition of the cause was such as to entitle the plaintiff to judgment, and, if otherwise, we could grant him

(Supreme Court of Washington. April 8, 1895.) PLEADING CROSS COMPLAINTS.

In an action to foreclose a laborer's lien on a quantity of wheat, several of the defendants filed separate answers, claiming similar liens, which they sought to have foreclosed; and with each answer was incorporated a cross complaint against certain codefendants alleging that the latter had wrongfully converted the wheat to their own use, and asking damages therefor. Held, that the cross complaints were properly dismissed, as containing new matter having no connection with the cause of action set out in the original complaint.

Appeal from superior court, Lincoln county; Wallace Mount, Judge.

Action by Charles Hill against W. E. Frink and others to foreclose a laborer's lien. From a judgment dismissing certain cross complaints, a part of the defendants appeal. Affirmed.

Higgins & Martin, for appellants. N. T. Caton and Merrit & Salisbury, for respondents.

ANDERS, J. This was an action to foreclose a laborer's lien on a certain quantity of wheat owned by the defendant W. E. Frink. The defendants other than W. E. Frink and Gehres & Hertrich claimed similar liens on the same wheat, which they asked to have foreclosed. Each of them filed a separate answer, with which was incorporated a cross complaint, so called, against the defendants Gehres & Hertrich, who, it appears, held a chattel mortgage on the grain in controversy; alleging, in brief, that said codefendants unlawfully took possession of said wheat, and proceeded to foreclose their chattel mortgage, regardless of defendant's prior lien, and caused said wheat to be sold at public sale to parties unknown to defendant, and thereupon, without accounting to defendant, or payment to him for his work and labor performed in harvesting and threshing said wheat, converted the proceeds thereof to their own use, and praying the court to adjudge that he have a preferred and prior lien upon the moneys converted to their use by said Gehres & Hertrich, arising from the sale of said wheat, and that he have and recover from the said Gehres & Hertrich upon said lien, and for the conversion of said wheat, and for the proceeds thereof, the amount due for his said work, the cost of preparing, filing, and recording his lien, and $25 as attorney's fees and costs. The court entered a decree, as prayed, in favor of these several defendants and against the defendant W. E Frink, but dismissed the

cross complaint against Gehres & Hertrich, on the latter's motion. And the only point made on this appeal is that the granting of this motion was error.

It is insisted on behalf of the appellants that their respective answers and cross complaints stated facts constituting a valid cause of action against Gehres & Hertrich, and that it was the duty of the court to determine the issues thus tendered, and not to summarily turn them out of court, and thus compel them to seek redress in an independent action. On the other hand, these respondents claim that the cross complaints were properly dismissed, for the reason that they set up new matters in no way connected with or dependent upon the cause of action stated in the original complaint. We think the position of the respondents is well taken, as it is in accord with both law and reason. While it is true that the court may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves (Code Proc. § 407), and that one defendant may, by cross complaint, in a proper case, seek affirmative relief from a todefendant, it is also true that the cause of action stated in the cross complaint must arise out of or relate to the subject-matter of the original action. Bliss, Code Pl. (3d Ed.) § 390, and cases cited. Now, the object of this action was simply to foreclose a laborer's lien on property upon which it was alleged the appellants and the respondents Gehres & Hertrich had or claimed a lien. The validity and priority of these claims were proper questions for the court to determine. But whether Gehres & Hertrich converted the property to their own use, to the damage of appellants, and, if so, whether they were liable to respond in damages, by reason thereof, to appellants, were matters not embraced in the original complaint, and which therefore did not constitute a proper subject of cross complaint. The proper office of a cross complaint is admirably illustrated and defined by Mr. Justice Nelson in Ayres v. Carver, 17 How. 594, as follows: "The cross bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. It is brought either to obtain a discovery of facts in aid of the defense to the original bill, or to obtain full and complete relief to all parties as to the matters charged in the original bill. It should not introduce new and distinct matters, not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original, independent suit. The cross bill is auxiliary to the proceeding in the original suit, and a dependency upon it." Tested by the authorities, the judgment of the court below was right. Qwing to the views already expressed as to the merits of this case, it is unnecessary to discuss or determine the points raised v.40P.no.2-9

by respondents' motion to dismiss the appeal. The judgment is affirmed.

HOYT, C. J., and GORDON, J., concur.

(11 Wash. 577)

MORATH v. GORHAM et al. (Supreme Court of Washington. April 11, 1895.)

COUNTIES-ALLOWANCE OF CLAIMS-APPEAL.

Under Laws 1893, p. 292, providing that any person may appeal from a decision of the county commissioners, and that the "party appealing" shall serve notice, etc., persons interested in a claim, who feel aggrieved by the decision of the commissioners, only can appeal and not taxpayers generally.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Appeal of Charles Morath from an order and decision of the commissioners of Snohomish county allowing the account of Gorham & Clemans. From a judgment dismissing the appeal, Morath appeals. Affirmed.

John W. Frame, for appellant. Bell & Austin, for respondents.

ANDERS, J. Gorham & Clemans, publishers of the Snohomish Tribune, presented a claim to the county commissioners of Snohomish county for publishing a delinquent tax list. Their account and claim were au dited and allowed by the commissioners, whereupon one Charles Morath, a resident taxpayer of the county, conceiving himself aggrieved by the order and decision of the commissioners, appealed therefrom to the superior court of Snohomish county. His appeal was dismissed by the court, on motion of counsel for Gorham & Clemans, "on the ground and for the reason that the said Charles Morath was not a party interested in said matter before the board of county commissioners, and had no right, under the law, or as a matter of fact, to take said appeal"; and he thereupon appealed to this court.

It is not claimed or pretended by appellant that he was a party to the proceedings before the county commissioners, or interested therein, otherwise than as a citizen and taxpayer, but he contends that he had a right to appeal from the order of the board of county commissioners by virtue of the statute which provides that "any person may appeal from any decision or order of the board of county commissioners to the superior court of the proper county." Laws 1893, p. 292. The language of this portion of the statute, if literally construed, might afford some suggestion for appellant's contention; but when considered and construed in connection with the remaining portions of the section, and in the light of established principles of procedure, it becomes apparent that the position of appellant is utterly untenable. The argument of appellant is that he is a taxpayer of Snohomish county, and interested in the disbursement of the