in determining questions that are of vital importance to them in the case. In fact, the insured seems from the start to have cavalierly settled this question, both for himself and the other party to the agreement. He stated in his correspondence that he could not see what would be gained in furnishing these data, if it were possible; then announces that he furnished what he supposed would be conclusive evidence that at the time of the fire he had more goods than the insurance called for, evidently resting upon the proof that he had furnished outside of this requirement. It might have been conclusive evidence, but, inasmuch as he and the appellant had stipulated what kind of evidence should be required, it was his duty to furnish that evidence if possible, and as far as possible. That he made no effort in this direction is plainly manifest from his own testimony. On page 10 of the record the following testimony appears: "Q. Did you ever make any inquiry of either one of the houses to furnish you with a bill of the goods you had purchased? A. For all I got from them- Q. Did you or did you not? A. No. Q. Now, when you bought goods of Roy & Co. for cash, after this fire, did you ever inquire of them if they had any record of sales made by you or cash paid by you for goods? A. It was not necessary. Q. Did you ever make any inquiry of them? A. No, sir." Again, on page 11, in response to the question: "You never went there to inquire, then, whether they kept any record of it? Now, this company requested you to do that very thing, did it not? A. They requested me to get all the duplicate bills of the business done. Q. And you never got any of them, or tried to get any of them? A. I never got any; no, sir. Q. Did you try? A. I did in that way. Q. In what way? A. Well, I knew I could get a few of the invoices of the goods. Q. But you did not get them, did you? A. I did not think it was necessary. * Q. You could have found out by inquiring, could you not? A. If I had gone around, I suppose, and asked them to figure up everything for three years' time, I could have found out who I bought most of. Q. Was not that what was requested of you? A. I was requested to get duplicate bills of all the business I done,-not one or two. Q. And because you could not get everything, you did not get anything? A. Because I could not get all." And much more testimony was given by the respondent to the same effect. All through his testimony he seems to place great stress on the fact that he was commanded to produce all the vouchers for the last three years. In answer to the following question by his attorney: "Mr. Ward, I wish you would state to the jury how long this demand was made on you; how long they asked for invoices of these goods," he said: "They asked for the full time I was in business,-three years and a month. Q. Two years before they had a policy on the goods? A. About; yes." Now, this was not true, according to the letter which he introduced in evidence himself. There was no time mentioned. The language was: "We are compelled to ask you, under the conditions of the policy, to produce certified copies of bills, invoices, and other vouchers in support of the claim, and permit extracts and copies thereof to be made," etc. So that the harsh construction which the witness was placing upon this letter, to the jury, is not borne out by the letter itself; and the testimony of this witness throughout is not characterized by that frankness by which it ought to be, as the following excerpt shows: "Q. How much were your sales per month? A. They dif fered in different months. Q. Of course, but I want the average. A. I never averaged them up. Q. Cannot you give this jury any idea of the average sales per month? A. If I knew exactly how much I sold- Q. I do not want to know exactly. I want you to at least try to approximate. A. I could not form a correct idea of the average per month. I might say a thing, and it might be wrong. Q. Then how do you know what the value of these goods were? A. How do I know that? Q. Yes, sir. A. From the facts." It will be seen that the witness has just refused to state any facts, and, if he knew as little about his business as his testimony would indicate, it would become very im portant to the insurer to have some data outside of his own testimony to satisfy it of the amount of the loss, or of the goods that were actually in the house at the time of the fire. The testimony offered by the plaintiff, without considering the testimony offered by the defense, convinces us that there was no attempt on the part of the insured to substantially comply, or to comply at all, with the provisions of the agreement in the contract, with reference to furnishing invoices and bills of goods, and that the nonsuit asked by the appellant should have been granted. The judgment will therefore be reversed, and the cause remanded, with instructions to grant the nonsuit asked. SCOTT, HOYT, and STILES, JJ., concur. (10 Wash. 382) RUMPF et al. v. BARTO et al. (Supreme Court of Washington. Dec. 26, 1894.) CONSTRUCTION OF CONTRACT-BAILMENT -CONDI- 1. Plaintiffs delivered certain jewelry to one R., with a memorandum to the effect that it was sent for his inspection, that it belonged to plaintiffs, and that it was to be returned to them on demand, and that sale would take effect only from their approval of R.'s selection, the goods to be held until then subject to their order. Held, that the paper showed a bailment, merely, and not a conditional sale. 2. Where goods are delivered to one merely that he may show them to a possible purchaser, one to whom he pledges them for money which he appropriates for himself has no title as against the rightful owners. Appeal from superior court, King county; R. Osborn, Judge. Action by Simon Rumpf and another against E. Barto and another. From a judgment for plaintiffs, defendants appeal. Affirmed. Blaine & De Vries, for appellants. Fishback, Sapp & Ferry, for respondents. STILES, J. Replevin of diamond jewelry of the alleged value of $352.50. Verdict for plaintiffs, assessing the value at $275. Respondents delivered the jewelry in question to one Reichart, with the following memorandum: "These goods are sent for your inspection, the property of Rumpf & Mayer, and to be returned to them with 'demand' [in writing] days. Sale only takes effect from date of their approval of your selection, and until then goods are to be held subject to their order. [Description.]" Appellants claim that this paper shows a conditional sale, subject to record under Act 1893, p. 253; but upon its face we should denominate it only a memorandum of bailment for inspection until demand, as though the goods had been intrusted to a possible purchaser for examination, the matter of sale at the price named, or return, being at his option. Under the evidence the goods were delivered to Reichart for the purpose of showing them to a third person, to whom, he represented, he might be able to make a sale of them. Reichart had no customer, but he made an arrangement with one Mayberry, by which the latter was to sell or pawn the goods for not less than $400, which sum was to be paid Reichart, and they were to divide the proceeds above that sum. This would have enabled Reichart to pay the price set by respondents, $352.50, and no one would have been the wiser. But Mayberry pawned them to appellants for $250, and ran away with the whole sum, he knowing that the goods did not belong to Reichart. Appellants claimed to have bought the goods from Mayberry, he at the time being the apparent owner, and so representing himself. They were licensed pawnbrokers, and, in order to avoid what they feared might be a legal necessity to foreclose on their pledges, they adopted a plan of taking from each pledgor a bill of sale, and gave in return an agreement to resell within a designated time for a sum including the amount loaned and interest. As between themselves and Mayberry, appellants might have been able to maintain the letter of their contract; but respondents are held only to the actual transaction, which was that of pawning. The first error urged was in the admission of the memorandum given Reichart, on the ground that it shows an unrecorded condi tional sale. The paper was for the construetion of the court, and bore nothing of the character of a sale; nor did the evidence in any way qualify it. Next it is complained that the court did not submit to the jury proper instructions on the theory that appellants had a right to rely upon the apparent title of Mayberry, or, if not that, then upon his apparent agency. There may have been some errors in the charge given (and of them there is also complaint), but none of them were harmful to the appellants. The charges refused were properly refused, because there was in the case, as presented, no question of apparent ownership or agency. Mayberry was simply a thief, who had got possession of the goods under a pretence of fairly selling or pawning them, and accounting for the proceeds from one who had no authority either to sell or pawn, and appellants had no knowledge of any fact, and relied upon no fact, which would relieve them from the ordinary rules fixing the liability of persons purchasing, or loaning money upon, stolen goods. Neither party was in any way in fault, and in such a case the legal owner is entitled to the possession. Judgment affirmed. HOYT and SCOTT, JJ., concur. (10 Wash. 375) ESSENCY v. ESSENCY et al. (Supreme Court of Washington. Dec. 26, 1894.) PARTIES ON APPEAL LIEN FOR CULTIVATING CROPS-DEFENSES-PAYMENT OF CLAIM. 1. On appeal by joint defendants from a judgment for plaintiff, a third defendant, who did not appear in the action, need not be served with notice. 2. On an issue between one claiming a lien on crops for labor bestowed thereon, and another claiming the crops by virtue of a sale made before they were raised, evidence that the former was a partner of the person raising the crops, and as such had been fully paid for his labor, is admissible. 3. No lien can be claimed for the labor of a team in raising crops, when such labor is not included in a contract for the labor of a person. Appeal from superior court, King county; J. W. Langley, Judge. Action by Joseph Essency against James Essency and others. From a judgment for plaintiff, defendants Jerome Catlin and Russell Catlin appeal. Reversed. Allen & Powell, for appellants. Ronald & Piles, for respondent. HOYT, J. This action was brought to secure the foreclosure of a lien upon certain farm products, the ownership of which was alleged to have been in the defendant James Essency, for whom it was alleged the work for which the lien was claimed had been done. The other defendants were alleged to have some interest in the property, the extent of which was unknown to the plaintiff. The defendant James Essency never appeared in the action and judgment was taken against him by default. The defendants Catlin filed an answer putting in issue most of the allegations of the complaint, and setting out certain affirmative defenses. The trial resulted in a finding for plaintiff, and a decree for the foreclosure of his lien upon the property for the amount found due. From this decree the defendants Catlin have prosecuted this appeal. They served notice of appeal upon the plaintiff, but made no service upon the defendant James Essency, and, because of the failure to serve him, respondent moves a dismissal of the appeal. In our opinion, it was not necessary to serve him, he not having appeared in the action, and the motion to dismiss must be denied. Many reasons are set out in the brief of the appellants why the decree should be reversed. The one most relied upon is the action of the court in sustaining the objection of the plaintiff to certain evidence offered by the appellants. It was claimed by the appellants that the plaintiff and the defendant James Essency were mutually interested in the contract for the raising of the crops upon which the lien was sought to be enforced, which had been entered into by James Essency on the one part and the defendants Catlin on the other. And, to establish this claim, they sought to prove certain admissions of the plaintiff, for the purpose of showing that he was a partner with his brother in the conduct of the farm at the time the crops in question were raised. The court, upon the objection of respondent, refused to allow these admissions to be shown. This was error. The respondent in his brief does not contend that these admissions were incompetent if they tended to establish the fact for which they were sought to be introduced, but he claims that they did not. He further claims that, since such testimony was sought to be elicited on the re-examination of a witness, its admission was within the discretion of the court, and that the form of the question was objectionable. The exclusion of the testimony might be sustained upon these grounds, did it not appear from the record that the ruling of the court was not based thereon. If the court had intended to exclude the testimony upon these technical objections, it should have so stated, in order that the appellants might, if possible, have avoided them. But this it did not do, and the appellants were justified, from what was said between court and counsel, in assuming that the exclusion of the testimony was because, in the opinion of the court, it was incompetent. For these reasons the action of the court cannot be sustained if the testimony was in fact competent. No reason has been suggested by counsel why it was not. In fact, respondent practically concedes its competency, and we are unable to see anything which would have justified any other course on his part. If the plaintiff was a partner with his brother in the contract under which the produce was raised, then the undisputed proofs showed that he had been fully paid for his labor. Hence, the question as to whether or not he was such partner was material to the issues, and the admissions offered were of such a nature that the appellants were entitled to put them in evidence as tending to establish the partnership. For this error the decree will have to be reversed, and a new trial awarded. And for the purposes of such new trial it will be necessary for us to state our conclusions as to some of the other questions presented by the briefs. One of these is as to the constitutionality of the law authorizing liens of this nature; another is as to the effect of certain subsequent legislation thereon. We shall only say, in regard to these questions, that we are not satisfied that the action of the superior court in relation thereto was erroneous, and for the purposes of this case shall hold that such law is constitutional and in force. But, in view of the fact that there was no oral argument in the case at bar, and that the principal reliance was upon other grounds than those which went to the validity of this statute, we shall leave these questions open for further consideration in any other case in which they may be raised. One other question which will be material on the retrial is as to whether or not a lien could be maintained for the labor of the team of the respondent. The statute providing for such lien applies only to the labor of the person, and thereunder no lien will lie for work performed by the team. It is probable that where the contract is for the labor of a person and a team, for a certain rate, with no specification as to how much of it is for the team, and how much for the person, a lien could be maintained for the contract price for the labor of the person and the team. But under other circumstances the law does not authorize a lien for the labor of the team. DUNBAR, C. J., and SCOTT and STILES, JJ., concur. (10 Wash. 435) HAISCH et al. v. CITY OF SEATTLE et al. (Supreme Court of Washington. Dec. 28, 1894.) MUNICIPAL CORPORATIONS-STREET IMPROVEMENT -CONTRACT-ASSESSMENTS-WHEN ENFORCED -ACCEPTANCE OF WORK-ESTOPPEL. 1. A contract for a street improvement which makes an entirely new grade or assessment district from the one contemplated by the ordinance authorizing the improvement cannot be enforced. Buckley v. City of Tacoma (Wash.) 37 Pac. 441, followed. 2. The enforcement of assessments for street improvements will be enjoined where the contract for the improvement was never performed, and the work was done in a manner grossly violative of the contract and of the ordinance authorizing the improvement, and re gardless of the interests of abutting property owners. 3. The fact that the work was accepted by the board of public works will not render such assessments enforceable, where the city charter makes it the duty of the city council, and not such board, to accept the work. 4. Even though the work is accepted by the city, abutting property owners are not estopped from inquiring into the compliance or noncompliance with the conditions of the contract, where it appears that the street is in a worse condition than before the attempted improvement, that such owners protested to the authorities at the time against the manner in which the work was being done, and that the defects were so open that it must be presumed that the city had notice of them. Appeal from superior court, King county; J. W. Langley, Judge. Action by George Haisch and others against the city of Seattle and others, to enjoin the sale of plaintiffs' property to pay assessments for street improvements, and to have such assessments declared void. E. F. Wittler intervened and asked special relief. From a judgment for plaintiffs, defendants appeal. Affirmed. Frank A. Steele, for appellants. Garrett & Jones, J. K. Brown, and Pratt & White, for respondents. DUNBAR, C. J. It would seem from the record in this case that the contract which the city entered into on June 26, 1890, or which it attempted to enter into, through Mayor Moran, was not in conformity to the ordinance which had been passed by the council providing for the improvement of South Twelfth street, as said ordinance required the street to be graded from Yesler avenue to Stacy street, and sidewalks constructed on both, coextensive with the grade thereof between said points, under the direction and supervision of the city engineer. This contract made an entirely new grade or assessment district from the one contemplated by the ordinance, and could not, therefore, under the rule laid down by this court in Buckley v. City of Tacoma, 37 Pac. 441, be enforced. An investigation of the record in this case convinces us that the testimony overwhelmingly shows the fact to be that the contract which Smart did enter into was never performed, but that the work was done in a manner which was in gross violation of the contract and of the ordinance providing for the improvement of said South Twelfth street; in a manner which was absolutely regardless of the interests of the respondents; that the work which was done was actually a damage to the property owners adjoining the street which was ordered improved, instead of a benefit; and that there has been no substantial compliance whatever with the terms of the contract. We think it cannot be contended by the appellants, in the face of the evidence, that such is not the case, but their position is that the acceptance of the work by the city is conclusive of its proper completion, and that their objections to the introduction of any evidence tending to impeach the acceptance should have been sustained. The acceptance in this case was by the board of public works, but a reference to the charter discloses the fact that it was the duty of the city council, at the time this work was done, to accept the same, and not the duty of the board of public works. The work, then, not having been legally accepted, or accepted by the tribunal which was empowered by law to accept it, the respondents had a right to prove that the improvement was in fact never completed. And, even accepting appellant's contention that the work had been ac cepted by the proper authorities, the taxpayer is not, under all circumstances, estopped from inquiring into the facts. The appellants cite Cooley on Taxation (2d Ed.) p. 671, to sustain their contention in this regard. The learned author on that page states the general rule, which is sustained by authority generally, that: "It is in general no defense to an assessment that the contract for the work has not been performed according to its terms. If the proper authorities have passed upon the question, and accepted the work as satisfactory, the acceptance must be conclusive. There cannot and ought not to be an appeal from them to court or jury." "But," says the author, "this doctrine must be confined within its proper limits. It cannot be extended to cover a case in which the authorities, after contracting for one thing, have seen fit to accept something different in its place; for, if this might be done, all statutory restraints upon the action of local authorities in these cases would be of no more force than they should see fit to allow them. And no doubt, if it were claimed that by fraud the cost of the work was purposely made excessive, the fact might be inquired into, and redress obtained, either in a direct proceeding for the purpose or on appeal if a competent appellate tribunal was provided." It seems plain that the strict requirements of the statute were not met in this case, and it has been decided by this court in Buckley v. City of Tacoma, supra, and in City of Spokane Falls v. Browne, 3 Wash. St. 84, 27 Pac. 1077, that the power to levy special assessments is to be construed strictly, that the mode prescribed is the measure of power, and that the material requirements must be complied with before there is any liability. On the question of estoppel to inquire into the compliance or noncompliance with the conditions of the contract it was decided in Oregon & C. R. Co. v. City of Portland (Or.) 35 Pac. 452, that: "Where the measure of assessments for street improvements in a city is limited to the amount of benefits derived, and the common council is invested with a discretion in determining that amount, the courts will not review the determination of the council, so long as its discretion is honestly exercised, and not abused. But where it appears that there is no necessity for the improvement; that, as made, it never has been used, though completed over two years, and probably never will be used; and that property assessed for benefits was not benefited, but actually damaged,-a decree enjoining the collection of such assessment is proper." In this case it conclusively appears from the record that the property assessed was not benefited by the expense incurred. It also conclusively appears that the street is in a worse condition than it was before the attempted improvements were made; and it must necessarily follow that the property adjoining has been damaged, instead of improved. It appears also from the record in this case that the property holders remonstrated, time and time again, with the authorities against the manner in which the work was being conducted, but no attention was paid to their remonstrances; and it also appears that the defects in the work are so open and notorious that the city must be presumed to have taken notice of the nonfulfillment of the contract on the part of the contractor. With this view of the law and the facts in this case, it is not necessary to enter into a discussion of the points involved in the brief of intervener Wittler, for the judgment in all respects will be affirmed. 1. Laws 1893, p. 120, requiring an appeal to be taken within six months, and declaring the notice ineffectual unless a bond is filed within five days, in effect allows six months in which to give notice, and five days more in which to file the bond. 2. An abandonment of a homestead will not relate back so as to validate a previous void sale thereof under execution. Appeal from superior court, Whatcom county; John R. Winn, Judge. Action by W. L. Asher and another against Louis Sekofsky and another to remove cloud upon plaintiffs' land. From a judgment for plaintiffs, defendants appeal. Affirmed. Black & Leaming, for appellants. John R. Crites, for respondents. STILES, J. The notice of appeal in this case was served on the last day allowed by the statute, and the bond was filed four days later. Respondents move to dismiss, under the claim that the appeal must be perfected by the filing of the bond within six months. Section 3 of the appeals act (Laws 1893, p. 120) requires an appeal to be "taken" within six months after notice of the entry of judgment in cases of this kind. The "taking" of an appeal is effected by giving notice. Section 4. The failure to file a bond within five days renders the notice "ineffectual," but the bond may be filed within the five days, notwithstanding the time for giving notice may have expired. In short, the statute allows six months to give notice, and five days more to file the bond. Motion denied. The A motion is also made to strike the statement of facts, but it will be disregarded. The case was heard upon an agreed statement of facts, stipulated to be all the facts in the case, and signed by the attorneys, and filed. The decree shows that it was based on the stipulation; and the statement of facts is nothing but a duplication of it, with the unnecessary addition of the entire record, including the cost bill. No statement was necessary. This was an action to remove the cloud upon respondents' title to a lot of land, created by a sheriff's deed upon execution issued to satisfy a judgment rendered by a justice of the peace. The complaint was based upon want of jurisdiction in the justice over the person of one of the defendants in the original action, upon certain irregularities in the proceedings, and upon the fact that the lot was the homestead of the respondents at the time of the levy and sale. We shall notice only the last of the grounds mentioned. agreed statement showed that the lot was the only real property of the respondents in the state; that they occupied it as the family residence; that it was worth less than $1,000; and that they claimed it as exempt, and took every means to prevent the sale by notifying the sheriff, warning purchasers, and protesting against confirmation. These facts justified the action of the court in holding the sale and deed to be void. Code Proc. § 481. Ap pellants' contention is: First. That the judgment was for purchase money of the lot. But the record does not bear them out, as it was for money borrowed to pay purchase money only. One who merely lends money to pay purchase money is not subrogated to the vendor's lien of the seller. Secondly, the position is taken that, because, after the sale and deed, respondents removed from the land, and executed a deed for it to a third party, the invalidity of the sheriff's deed was thereby cured. It may be that upon an abandonment of a homestead, the claimant still retaining the title, a properly docketed judgment lien will attach to the land, but an abandonment does not relate so as to give validity to a sale void when it was made. In this state the sale of a homestead worth less than $1,000 upon execution is void, and the title is not disturbed. This is the universal rule under statutes like ours. Thomp. Homest. & Ex. § 625 et seq. Judgment affirmed. DUNBAR, C. J., and SCOTT and HOYT, JJ., concur. |