unless time is obtained therefor by order of the court, or its judge in vacation. The decisions of this court have been uniform on this point, where the ground is that the judgment or order is not sustained by sufficient evidence, as is the contention in the case at bar. Roy v. Mercantile Co., 3 Wyo. 417, 26 Pac. 996; Howard v. Bowman, 3 Wyo. 311, 23 Pac. 68. The allowance of the bill does not appear to have been contested, and nothing is said in regard to this matter in the briefs upon which the cause was submitted, but we cannot disregard such a lack of compliance with the necessary forms of our practice and the provisions of our statute. It is urged that the evidence upon the hearing before the judge upon the motion to dissolve the attachment was sufficient to sustain the attachment, and that the judge erred in discharging the attachment, and this is the only question-a question of fact-that would be presented by the bill. As the record nowhere discloses that time was asked or allowed within which to prepare and present the bill, we have nothing before us to decide, and the proceedings in error must be dismissed.

2. But we have examined the testimony taken upon the hearing of the motion to dissolve the attachment, both oral and in the form of affidavits, and we are unable to say that the decision of the court was incorrect. A court of error, before reversing the decision of an inferior court upon a question of fact involved in a motion to discharge an attachment should be satisfied that such decision was clearly erroneous. Harrison v. King, 9 Ohio St. 388. The second ground of attachment is based upon the pending disposition of the property of the debtor by it with intent to defraud its creditors. The only testimony that can be claimed as tending to show this is an offer to mortgage the property to plaintiff in error, including in the mortgage the claim of another creditor, not yet due, which it was stipulated should be paid after the debt due the plaintiff in error was discharged. This showing is not a fraud of the rights of other creditors, and is more favorable to the defendant in error than to the complaining party. The first and remaining ground of attachment (that the defendant fraudulently contracted the debt) is based on certain statements alleged to have been made to the commercial traveler of the plaintiff in error at the time the first bill of goods was sold to defendant in error,-that the corporation had a capital stock of $5,000 fully paid up, and owed practically no debts, or that there were no debts of importance. The evidence on this point was conflicting, as the statements of the commercial traveler were denied by three witnesses for the defendant in error more or less directly, and positively by the member of the corporation employed as its bookkeeper, who was the one who ordered the goods. The fact appears that the leading incorporators, Lilly and Culver, of the Casper Drug Company,

the defendant in error, took each 77 shares of the capital stock of the corporation in payment of the stock of drugs and fixtures theretofore owned by them, and 20 shares each to be devoted to the purpose of paying their antecedent indebtedness; it being the intention of the incorporators to merge the business of Lilly and Culver into that of the Casper Drug Company. The remaining shares, 6 in number, were distributed among an attorney, for his legal advice; a practicing physician, for his advice and patronage; and to a former employé in payment of his services. The shares of stock were 200 in number, and each was of the face value of $25. There does not appear any design on the part of any one in this transaction to defraud any of the creditors of the corporation or of the stockholders. About a week after the incorporation, Lilly, the vice president and manager of the corporation, made a statement to the commercial agency of R. G. Dun & Co., stating that the authorized capital stock of the corporation was $5,000; that it had been subscribed and paid in; that the corporation had cash on hand $500, stock of goods and goods in transit to the amount of $4,500, and fixtures amounting to $500; and that the liabilities were accounts payable to the amount of $100. This statement does not correctly represent the financial condition of the corporation at the time it was made. $3,850 of the capital stock represented the stock of goods put into the corporation by Lilly and Culver, which was worth between $2,800 and $3,500, according to their testimony, and $1,000 of the stock was not paid in, but was taken by Lilly and Culver, and was to be applied in payment of their debts in business, over $800,-and really represented either unpaid capital stock or stock issued for the stock of goods sold by them to the corporation. The indebtedness upon the goods in transit must have been largely in excess of $100, as certified in the statement, and the whole statement sent to the commercial agency appears to be false and misleading. It was not communicated to the plaintiff in error until some time after the first bill of goods, ordered from the commercial traveler of plaintiff in error, was shipped, although the testimony is somewhat obscure on this point. The most favcrable view of the case that can be taken for plaintiff in error is that the first bill of goods was sold and delivered upon the faith of the statements made to the commercial traveler, which must be held not to be false under the evidence, or not proven according to the evidence; and that the second bill was shipped upon the belief that the misleading and deceptive statement made through the commercial agency was true. The debt, if fraudulently contracted, was not the whole debt, but about half of the whole account, and the amount of the second bill of goods. This is insufficient to sustain the attachment. The ground of the attachment is that the whole debt was fraud

ulently contracted, while the evidence shows that but part of it can be said to be so contracted, assuming that the statements made to the commercial agency and communicated to the creditor, and upon which he acted as to subsequent transactions, were fraudulent. The framers of the statute undoubtedly recognized that attachment is a harsh remedy, and one which, though proper when the statutory grounds clearly exist, should be confined within the limits of the statute. There must be an affidavit showing the nature of the plaintiff's claim, that it is just, and the amount which the affiant believes the plaintiff ought to recover, and the existence of some of the grounds of attachment enumerated. It is said that under such a statute, these provisions indicate clearly the purpose of the legislature to secure the people against unauthorized and excessive attachments, and that these provisions would afford no protection if a party holding a small claim, upon which an attachment might lawfully issue, may attach it to another claim, upon which, under the law, no attachment could issue, and obtain an attachment for the consolidated and increased amount. That the attachment should be confined to the cause of action upon which an attachment might properly issue, and the increase of the plaintiff's proper claim by adding an amount which, if standing alone, would not be a claim for which the attachment could lawfully issue, would vitiate the whole, was held by the court to be so plain and manifest as to render authorities to that effect of secondary importance. Mayer v. Zingre, 18 Neb. 458, 25 N. W. 727. So, in a like case, where two promissory notes of the plaintiff's claim were not fraudulently contracted, it was held that the plaintiff had no right to have his writ for the amounts that were not, nor to have a lien upon the property of the defendant therefor. By including with the claim fraudulently contracted others that were not, if the defendant sought to release his property from the attachment by executing a bond in discharge of the attachment, the officer holding the property seized in attachment could demand a bond in double the amount specified in the affidavit, though but a portion of the debt was fraudulently contracted; and thus the defendant would be forced to give a bond for the entire amount sworn to be due, to secure the immediate restoration of his property. One could attach to his claim any number of assigned claims, and obtain a lien for the whole sum upon the debtor's property, if the contrary rule should be enforced. The court well said that, the remedy being a harsh and extraordinary one, proper when coming within the plain provisions of the statute, the statute should not be extended by construction. It further remarks that "we are cited to no case by counsel which upholds the doctrine for which they contend, and we are satisfied upon principle that none can be found." Est

low v. Hanna, 75 Mich. 219, 42 N. W. 812. The following cases are cited: Mining Co. v. Raht, 9 Hun, 208; Wilson v. Harvey, 52 How. Prac. 126; and Mayer v. Zingre, supra. The same rule was enforced in Stiff v. Fisher, 85 Tex. 556, 22 S. W. 577; Id., 2 Tex. Civ. App. 346, 21 S. W. 291. For the reason that the debt cannot be said to be fraudulently contracted as a whole, and because this court cannot disturb the findings below upon the conflicting evidence as to the first item of the debt, particularly where the preponderance of the evidence shows that such portion of the debt was not fraudulently contracted, the order discharging the attachment would have been affirmed if the bill of exceptions was a proper one, and time had been asked within which to prepare and present it to the court or judge for allowance.

3. An objection is made that no proceedings in error could have been instituted in the case, as the order discharging the attachment was not a final order, and is not appealable under our Code. Under code provisions similar to ours, the courts of last resort in other states have held that the order dissolving or sustaining an attachment is a final order affecting the substantial rights of the parties, and may be reviewed without bringing up the whole case after final judgment; and this is undoubtedly the correct rule, even though there is no direct statutory provision in our Code authorizing an appeal in such cases, except as to final orders generally. Watson v. Sullivan, 5 Ohio St. 42; Harrison v. King, 9 Ohio St. 388; Bank v. Morgan, 26 Neb. 148, 41 N. W. 993.

4. It is contended that the affidavit for attachment is not sufficient, as it states that the debt was fraudulently contracted, without showing in detail the facts relating thereto. But we think that the great weight of authority is in favor of sustaining the attachment where the grounds therefor are stated in the language of the statute, or in equivalent terms. Hockspringer v. Ballenburg, 16 Ohio, 304; Emmitt v. Yeigh, 12 Ohio St. 335; Coston v. Paige, 9 Ohio St. 397; Harrison v. King, Id. 388; Creasser v. Young, 31 Ohio St. 57; Tallon v. Ellison, 3 Neb. 63. The ground of the statute is expressed in positive terms, and the criticism of Mr. Justice Saufley in Bank v. Swan, 3 Wyo. 372, 23 Pac. 743, does not apply, as in that case the applicant for attachment stated, under the permission of our statute, that he had good reason to believe, and did believe, that the ground of attachment existed, while in the case before us the ground of attachment is stated positively, and not upon belief. Owing to the defect in the bill of exceptions, and in the absence of any showing in the record that time was asked and allowed in which to reduce the exceptions to writing for allowance, the proceedings in error are dismissed.

CONAWAY and POTTER, JJ., concur.

1. A contract for the construction of a bridge provided for payment on certificate of the engineer that the work had been completed. After the bridge had been practically completed, the contractor demanded payment, and the engineer wrote the owner that the bridge was completed except for some planking which could not be done until low water; that he was willing to accept the bridge as it stood, and advised the owner to retain a certain amount of the contract price to insure the completion of the planking. Held, that the letter entitled the contractor to the payment of the price, less a sufficient amount to insure the completion of the planking.

2. Where the certificate of the engineer accepting a bridge as completed recites that certain other work remains yet to be done, and advises the owner to retain a certain amount of the contract price to insure its completion, a claim for a lien filed by the contractor within the statutory time after the completion of the work reserved from the certificate is sufficient.

3. Where the contract for a bridge requires a certificate of the engineer that the work is completed before the price is payable, such a certificate cannot be withheld where the bridge, the contract price of which was $16,000, was so near completed that an expenditure of $30 would complete it, it being impossible to finish the work at the time because of high water.

4. Where, in an action on a building contract, evidence of a waiver by the owner of conditions precedent to the payment of the price is admitted without objection, the fact that the waiver was not pleaded, and that other evidence of the waiver was objected to, does not prevent the contractor from taking advantage of the waiver.

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

Action by the Washington Bridge Company, a corporation, by Warren A. Worden, receiver, against the Land & River Improvement Company of Everett, a corporation, and others. There was a judgment for plaintiff, and the defendant improvement company and another appeal. Affirmed.

Black & Edwards, for appellants. Stiles, Stevens & Tillinghast, for respondent.

HOYT, C. J. Respondent brought an action against the appellants and other defendants to recover the price agreed to be paid for the construction of a certain bridge, and to foreclose a lien thereon to secure the payment of the judgment. After hearing, judgment and decree were made and entered substantially as prayed for in the complaint, from which the defendants the Land & River Improvement Company of Everett and the Mitchell Land & Improvement Company have sought to appeal. Upon the hearing in this court, the appeal was dismissed as to the Mitchell Land & Improvement Company, so that the only questions to be decided are those arising between the plaintiff and the Land & River Improvement Company. Upon the part of that corporation, it is claimed that the de

cree should be reversed, for the reason that the written contract under which the bridge was built provided (1) that the last payment should not be made until the superintendent had furnished a certificate that the work had been completed in accordance with the terms of the contract; and (2) that proof should be furnished that all claims for labor and material had been paid, and that no such certificate had been furnished or proofs made. Upon these questions it is contended by the respondent that, as to proofs that all claims for material and labor had been paid, the circumstances under which the bridge was erected were such that no claims could be asserted against the structure, and that the defendants had knowledge of that fact, and for that reason waived the making of any such proofs; and, as to the certificate of the superintendent, that one was furnished, and that, if there was not, it was waived.

The question of the most importance, and that upon which the greatest stress was placed at the hearing, was in relation to the superintendent's certificate. That which was relied upon by the respondent as a certificate was a letter written by the superintendent to the president of the appellant in substantially the following form: "In response to your letter from the Washington Bridge Company of Tacoma, notifying me that they had completed the Everett Avenue bridge, I have this day inspected the same, with a view to acceptance. The planking on the piers still remains to be finished, but this cannot be done until the river is very much lower than it is at present. This work should have been done in August of last year, as the river at that time was very low; but, although I wrote to them several times on the subject. they failed to do the work until it was too late. With this exception, I am willing to accept the bridge as it stands. I should advise you to hold back about three hundred dollars to insure the completion of the planking at such time as the state of water will admit of the work being properly done." The appellant insists that this letter was in no sense a certificate; that, if it was a certificate at all, it was to the effect that the work had not been completed, rather than one that it had. If the letter had to be construed alone. without any aid from surrounding circumstances, it might be difficult to determine therefrom what was intended. But it was made clearly to appear from the proofs that, for some time before this letter was written, the respondent had been claiming that the bridge was entirely completed, and had been pressing the appellant for payment of the balance due; that, during various conversations between the officers of the respondent and of the appellant, there had been claims and admissions tending to show that it was understood that the bridge was substantially completed. And this letter must be construed in connection with the circumstances connected with the subject-matter thus made to appear, and,

so construed, we think it fairly warrants the contention on the part of the respondent that it was intended by the superintendent as a certificate that he had passed upon and accepted all of the work except the planking of the piers, and that as to that he intended to certify that it could not be done at that time on account of the stage of the water; and, further, that it was his intention by this certificate to entitle the respondent to full payment, excepting that enough should be kept back to insure the completion of the work so soon as it could be done; that it was not contemplated that payment should be delayed until a further and additional certificate should be furnished. But the appellant claims that, if this letter be so construed, it shows that the contract,was entirely completed on July 12th, the date of the letter, and that for that reason the lien which was not filed until October could not be given force. But, in our opinion, the certificate, if treated as one of final completion, did not prevent the respondent from doing the work which the certificate did not cover; and this work, when done, was as much a part of the contract as though no certificate had ever been furnished; and as the proof shows that work was done upon the planking, as to which the reservation was made in the certificate, on the 29th of September, the lien was filed in time.

We think the respondent was entitled to recover under this certificate and the other proofs introduced at the trial upon another ground. It appeared therefrom that the work under the contract had been substantially completed; and while it is true that the certificate might rightfully have been refused until the work was entirely done, if an exact and full compliance with the contract could then reasonably be required, it could not be so refused if the work had been completed in substantial compliance with the contract, and what remained could not then be reasonably required to be done. All of the cases hold that a certificate cannot be rightfully withheld after the work has been substantially completed, even though the contract may not have been complied with in every detail, if, at the time the work is so substantially completed, it is not reasonable, under all the circumstances, to require a further compliance. In our opinion, the circumstances surrounding this transaction bring this case directly within the rule thus recognized. That the work had been substantially completed was fully established by the proofs, from which it appeared that not more than $30 would be re quired to fully complete the work; and, when a structure which has cost $16,000 or more is so far completed that an expenditure of $30 will finish it, it is certainly substantially completed; and, as it appeared that it was impossible that this small amount of work could be done at that time, it was not reasonable for the superintendent to withhold his certificate until some indefinite time in the future when it might be possible to complete

the work. Under the circumstances, we hold that the contract had been substantially completed, and that its further completion could not reasonably have been required. This being so, the appellant could not rightfully refuse to pay the balance of the contract price which had been earned, because of the absence of the certificate provided for in the contract.

There was a further ground upon which the respondent was entitled to recover. The conditions of the contract as to the certificate, as well as those as to the proof of the payment of claims, had been waived by the appellant. The appellant contends that the pleadings were such that the respondent could not make available any waiver of the conditions of the contract. The complaint may not have authorized the introduction of any proof of such waiver, but enough evidence of that kind was introduced without objection on the part of the appellant to authorize a finding by the court of the fact of such waiver; and, this being so, the fact that other testimony tending to show such waiver was objected to, or the fact that the waiver was not pleaded, could not prevent a court of equity from giving force to the proofs which had been introduced without objection. Upon one or all of these grounds, the trial court rightfully held that the contract price, less the amount required to complete the work, could be recovered, and that its payment could be enforced by a lien upon the bridge.

It is claimed, however, that the recovery was excessive, for the reason that the court allowed only the sum of $800 as compensation for the superintendent, growing out of the delay in the completion of the structure, when the proof showed that the amount actually paid to him by the appellant was some $2,200. Upon this question, the proofs warranted a finding on the part of the trial court that only a reasonable compensation paid the superintendent by the appellant was to be repaid by the respondent, and for that reason we are not disposed to disturb the finding that the respondent was only liable on that account to the amount of $800.

That written contracts should be given force according to their terms, and that a waiver of any of such terms should only be held to have been established when clear and convincing proof to that end has been introduced, is undoubtedly the rule, and to it we yield the fullest adherence; but, where the circumstances tending to show such waiver are evidenced by written instruments, the danger growing out of the admission of such proof is much lessened. In the case at bar, the written evidence, if considered alone, would satisfy us that it was the intention of the appellant not to hold the respondent strictly to the conditions of the contract; and such written proofs were supplemented by oral testimony which could leave little doubt as to the facts. From what we can gather from the record, the cause was fairly tried, and the

court arrived at the proper conclusion, and its judgment and decree will be affirmed.

ANDERS, SCOTT, and GORDON, JJ., con

eur.

(12 Wash. 230)

NICOL v. SKAGIT BOOM CO. et al. (Supreme Court of Washington. July 10,

1895.)

TIME FOR APPEAL - EXTENSION BY MOTION TO VACATE-WHO MAY APPEAL.

1. Where the time within which an appeal from an order confirming a sale by a receiver can be taken has elapsed, a party cannot, by motion to vacate the order of confirmation and appeal from the denial of the motion, bring up the order of confirmation for review.

2. A person neither an active party to the hearing of a motion for confirmation of a sale by a receiver, nor a party to a motion to vacate the order of confirmation, cannot appeal from the decisions thereon.

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by A. R. Nicol against the Skagit Boom Company and others. From an order confirming a sale by the receiver appointed for defendant boom company, and from an order refusing to vacate the order of confirmation, defendants appeal. Affirmed.

C. K. Bonnestel, W. H. Pratt, and Richard Saxe Jones, for appellants Skagit Boom Co., E. S. Alexander, E. T. Dunning, and E. C. Foltz. C. Van Horn, Million & Houser, and Johnson Nickens, for respondent.

HOYT, C. J. One of the defendants, as receiver of the Skagit Boom Company, made a sale, under order of the court, of the property of said company. To his report of such sale, exceptions were filed on the part of the Skagit Boom Company and E. T. Dunning, two of the defendants. Such exceptions, together with a motion for confirmation of the sale, were heard on the 20th day of June, 1894; and, at the time of such hearing, an order was made overruling the exceptions, and confirming the sale. This order was entered on the 23d day of June, 1894. Thereafter a motion was filed on behalf of said defendants, the Skagit Boom Company and E. T. Dunning, to vacate the order of confirmation. This motion was heard on the 2d day of July, 1894; and, at the time of such hearing, an order was made denying the motion, which was duly entered on the 6th day of July, 1894. On the 7th day of July, 1894, the defendant the Skagit Boom Company and E. C. Foltz gave notice of an appeal to the supreme court from the order confirming the sale, and 'also from the order denying the motion to vacate said order of confirmation; and on the 10th day of July, 1894, the defendants E. T. Dunning, and Edward S. Alexander, as re

ceiver of the Skagit Boom Company, filed a notice that they join in said appeal.

Upon the record showing these facts, it is urged on the part of the respondent that the orders appealed from must be affirmed, without regard to the question as to whether or not they were rightly made, for the reason that none of the appellants are in a situation to take advantage of the error of the court in making them, if error was committed. With this contention we feel compelled to agree. The order confirming the sale was made at the time of the hearing, and, under the provisions of section 3 of the act of 1893 as to appeals, could only be appealed from within five days after its entry; and as it was entered on the 23d day of June, and the attempt to appeal therefrom was not until July 7th, such attempt was ineffectual. The appeal from the order refusing to vacate the confirmation of sale was in time, but, as to the appellants who were parties to the hearing at the time the order confirming the sale was made, an appeal therefrom could not bring up any question as to the making of such order. By their motion to vacate it, they only sought to have the court rehear the same question upon which the former hearing had been had at the time such order was made; and it is familiar law that one who is in a situation to protect his rights by an appeal from a judgment or order must so protect them, and cannot, by way of a motion, seek to revive the same questions, and from a decision in reference thereto seek relief by appeal. The only remedy of the appellants who were parties to the hearing at the time the order of confirmation was made was by an appeal from that order, and, not having taken it, they are without remedy.

The only other appellant making any claim to relief is E. C. Foltz, but he was an active party to neither the hearing upon motion for confirmation, nor to the one upon the motion to vacate the order then made. So far as he was concerned, the order of confirmation was made without objection,-and, no appeal having been prosecuted therefrom, it became final until set aside by somé proper proceeding in the trial court; and until he has set on foot some such proceeding, and has obtained the decision of that court thereon. there is nothing in its proceedings to which he has been such a party as to entitle him to prosecute an appeal from the decision of that court therein. Other reasons might be suggested why these appeals cannot be sustained, but it is unnecessary to refer to them, since what we have said shows that there is nothing in the record which authorizes this court to grant any relief. The orders appealed from must be affirmed.

ANDERS, SCOTT, and GORDON, JJ., con

cur.