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PARKER, J. This is an action to recover buildings declined to act as arbiter, and that a balance due upon a building contract in- therefore there is no question of the necescluding compensation for extra work and sity of submitting any disputed matter to material. The case was tried before the him. court without a jury, resulting in findings [1] We are not able to gather from the and judgment in favor of the plaintiffs, from language above quoted an intention on the which the defendant has appealed.

part of the parties thereto to make the archiIn April, 1913, respondents, Russell & Gal- tect the arbiter of the questions here involvlagher, entered into a contract with appel- ed, since there is not here involved any queslant, Yesler Estate, Incorporated, agreeing tion of the proper performance of the work to construct a certain portion of a building or the proper quality of the material enterabout to be constructed upon one of its lots ing into the structure, but only the question in Seattle. The provisions of the contract, of the value of the extra work and possibly so far as here necessary to notice them, are the quantity thereof, and the demurrage, all as follows:

of which questions seem by the terms of the "That the said party of the first part (respond contract to be subject to arbitration before ents), for and in consideration of the payments the superintendent of buildings. It seems to be made to them by the said second party as to us that the language of the contract referhereinafter provided, do hereby covenant, contract, and agree to do and fully complete, by the ring to such arbitration negatives the idea of 10th day of June, 1913, all of the digging, the power of the architect in that respect, trenching, cribbing, pumping, cleaning, excavat: not only as to the value of the extra work, ing, and build the foundation and basement walls, piers, and posts for a building to be but also as to the amount of the demurrage, erected, on the site described in the specifica- if any, chargeable to the respondents. It is tion, according to the plans, specifications, and in any event not at all certain that the pardrawings (which are declared to be a part of ties to the contract agreed to make the archithis agreement), made by A. Wickersham, architect (acting as agent for said owner), in a tect the final arbiter of any of the questions good, substantial, and workmanlike manner, to here involved. This of itself would entitle the satisfaction of and under the direction of respondents to resort to the courts. said architect.

"It is also further agreed that the said party [2] While the law favors the settlement of of the second part may make all alterations by disputes by arbitration, it will compel paradding, omitting, or deviating from the afore- ties to resort thereto only when the terms of said plans, drawings, and specifications, or either of them, which shall deem proper, and their contract are clear and certain in showthe said architect shall advise, without impair-ing they have such intention. In the early ing the validity of this contract, and in all such case of Van Horne v. Watrous, 10 Wash. 525, cases the said architect shall value or appraise buch alteration, and add to or deduct from the at page 527, 39 Pac. 136, at page 137, Judge amount herein agreed to be paid to the said first Stiles, speaking for the court, observed: party the excess or deficiency occasioned by such

"Courts will enforce contracts to arbitrate disalteration, but should any dispute arise respect- putes and make the decision of arbitrators final ing the true value of any works added or omit- where the parties to a contract make it clearly ted by the contractor, the same shall be arbi- to appear that such was their intention; but trated by appealing to the superintendent of whenever they leave it doubtful whether such a buildings for the city of Seattle, who has been method of settling a disputed question was inhereby mutually selected and whose decision tended to be left to the final decision of arbitrashall be final and binding on all parties, each tors, the construction is in favor of the right to party paying one-half of the fee. It is further resort to the courts for redress in the usual agreed that in case any difference of opinion shall arise between said parties in relation to the contract, the work to be or that has been In Sweatt v. Bonne, 60 Wash. 18, 110 Pac. performed under it, or in relation to the plans, 617, we said: drawings, and specifications, the decision of the said architect shall be final and binding on all be as an agreed arbiter between an owner and

"Whatever the authority of an architect may parties hereto.

"It is further agreed should the contractor fail a contractor, the law will not regard the owner to finish the work at the time agreed upon, they bound by a decision of the architect, except in shall pay to or allow the owner, by way of so far as the owner has unmistakably agreed liquidated damages. the sum of $20 per diem, to be so bound. Long v. Pierce County, 22 for each and every day thereafter the said works Wash. 330, 61 Pac. 642; County of Cook v. shall remain incomplete, subject to the right 136 m. 525, 26 N. É. 1090; Chicago & E. I.

Harms, 108 Ill. 151; City of Elgin v. Joslyn, of arbitration above mentioned.”

R. Co. v. Moran, 187 Ill. 316, 58 N. E. 335 ; The real controversy is over claims of Fay v. Muhlker (1 Misc. Rep. 321), 20 N. Y. respondents for extra work and material re Supp. 671; Fuller & Co. v. Young & Co., 126 quired of them because of change in plans of Fed. 343 [61 C. C. X. 245).” the structure, and also a claim of demurrage This observation is, of course, applicable to made by appellant against respondents be- the rights of the contractor as well as to cause of delay in the completion of the work. those of the owner.

It is contended by counsel for appellant All other questions her involved are of that under the terms of this contract the fact only. We think it would be unprofitable architect became the agreed arbiter of the to analyze the evidence in detail, and feel disputed items of charge claimed by respond that we are not called upon to say more than ents, and also the disputed item of demur- that we have painstakingly reviewed all of the rage claimed by appellant against respond- evidence found in the statement of facts, and

manner.

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in favor of the conclusions reached by the one claiming the benefit of the transaction to trial court both upon the question of respond explain it by clear and satisfactory evidence. ents' claims for extra work and material Conveyances, Cent. Dig. 88 801, 802; Dec. Dig.

[Ed. Note.-For other cases, see Fraudulent and upon appellant's claim of demurrage. 278.] In any event we cannot say that it prepon- | 6. FRAUDULENT CONVEYANCES C259OONderates to the contrary. We think the case

VEYANCE TO WIFE BURDEN OF PROOF does not call for further discussion.

STATUTE. The judgment is affirmed.

Rem. & Bal. Code, $ 5292, putting the burden of proving good faith of the transaction up

on a wife to whom a husband has conveyed, MORRIS, C. J., and BAUSMAN, MAIN, does not exempt the transaction from the ordiand HOLCOMB, JJ., concur.

nary rules of pleading by one questioning the deed.

(Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. $$_756, 757, 764–766,

769, 770; Dec. Dig. 259.] CRANDALL et al. v. LEE. (No. 12877.)

7. FRAUD Omw 41-PRESUMPTION. (Supreme Court of Washington. Jan. 7, 1916.)

Fraud is never presumed, and the burden of 1. FRAUDULENT CONVEYANCES @ww230, 241— pleading fraud is always on the one who asREMEDIES OF CREDITORS-EXECUTION. serts it.

A creditor may levy an execution upon the [Ed. Note.-For other cases, see Fraud, Cent. property theretofore conveyed in fraud of his Dig. $8 36, 37; Dec. Dig. 41.) rights and sell it without resort to a creditor's bill, and without having an execution returned 8. APPEAL AND ERROR Ow889 – AMENDMENT nulla bona,

ON APPEAL-STATUTES. [Ed. Note.-For other cases, see Fraudulent

Under Rem. & Bal. Code, 8 307, providing Conveyances, Cent. Dig. 88 660-664, 694, 696– that the court shall in every stage of an action 726; Dec. Dig. Om 230, 241.]

disregard any defect in the pleadings not af

fecting the substantial rights of the adverse 2. FRAUDULENT CONVEYANCES 264-TITLE party, and section 1752, providing that the Su

ACQUIRED AT EXECUTION SALE ALLEGA. preme Court shall hear and determine all causes TION AND PROOF.

upon the merits and shall consider all amendA creditor suing to quiet title acquired at ments which could have been made, the coman execution sale must go further than to assert plaint in a suit by the purchaser at a creditor's merely that the sale was made in fraud of his execution sale to quiet title as against an outrights, and must allege and prove that the gran, standing deed in the debtor's wife, where the tor had no other property out of which he could complaint did not state facts to constitute a bave satisfied the judgment.

cause of action, and where the trial court made [Ed. Note.-For other cases, see Fraudulent po findings of fact, would not deem the pleadConveyances, Cent. Dig. 88 767, 768; Dec. Dig. ings amended to conform to the proof, since, 264.]

where there are no facts, there can be no 3. FRAUDULENT CONVEYANCES 263—PUR- amendment. CHASE AT EXECUTION SALE - SUFFICIENCY

[Ed. Note. For other cases, see Appeal and OF COMPLAINT.

Error, Cent. Dig. $$ 3621, 3622; Dec. Dig. In a suit by the purchaser at an execution 889; Pleading, Cent. Dig. 88 1355, 1418.) sale to quiet title to the land as against an out-1 9. FRAUDULENT CONVEYANCES Om 259—PURstanding deed to the debtor's wife, the purchas

CHASERS AT EXECUTION SALE RIGHT OF er must plead the facts upon which he relies, ACTION. and a complaint in no way describing the deed, A complaint in a suit by the purchaser at although it was a matter of record showing the a creditor's execution sale to quiet title to the relationship of the parties, or charging actual or land as against an outstanding deed in the constructive fraud, did not state a cause of ac- debtor's wife, merely asserting such hostile title, tion so as to put the defendant to the burden of did not show that the foundation of the foreign proof.

judgment on which execution was had was either [Ed. Note.- For other cases, see Fraudulent an existing debt or an existing equity at the Conveyances, Cent. Dig. 88 771–774, 776–779, time the deed was executed. 781 ; Dec. Dig. 263.]

[Ed. Note.- For other cases, see Fraudulent 4. FRAUDULENT CONVEYANCES 230-LEVY Conveyances, Cent. Dig. && 756, 757, 764–766, AND SALE BY CREDITOR-EFFECT.

769, 770; Dec. Dig. Om 259.] A creditor may levy an execution and sell property assumed to be conveyed in fraud of 10. FRAUDULENT CONVEYANCES Om 295—EVIcreditors, but such proceeding will not remove

DENCE – SUFFICIENCY - EQUITY OF PLAINthe cloud of an outstanding deed,

TIFF. [Ed. Note.-For other cases, see Fraudulent sale to quiet title to the land as against an out

In a suit by the purchaser at an execution Conveyances, Cent. Dig. &$ 660-664; Dec. Dig. standing deed in the debtor's wife, evidence held 230.]

insufficient to show that plaintiff stood in the 5. FRAUDULENT CONVEYANCES em 278 - Con- shoes of a creditor having an existing equity

VEYANCE FROM HUSBAND TO WIFE-PRE- at the time the deed to defendant was made. SUMPTION.

(Ed. Note.--For other cases, see Fraudulent In view of Rem. & Bal. Code, $ 8766, pro- Conveyances, Cent. Dig. 88 867–875; Dec. Dig. viding that every deed from a husband to his m 295.) wife shall divest the property from any claim as community property and vest it in the grantee Department 1. Appeal from Superior as separate property, and that such conveyance shall not affect any existing equity in fa- Court, Kitsap County; Walter M. French, vor of the creditors of the grantor, a deed from Judge. a husband to his wife is not presumptively Suit to quiet title by W. F. Orandall and fraudulent, either as matter of substantive law others against Elizabeth M. Lee. Judgment or of pleading, but may be questioned as any other deed, and, if attacked by a sufficient plead- for defendant, and plaintiffs appeal.

Aling and preliminary proof, the burden is on the firmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Shorett, McLaren & Shorett, of Seattle, for ings amended to conform to the proofs. Apappellants. Thomas Stevenson, of Bremer- pellants brought their action, alleging no ton, for respondent.

more than that they were the owners in fee

of the property, that defendant claimed CHADWICK, J. On Feb. 6, 1911, the ap- some right or title in it adverse to them, the pellant W. F. Crandall and another brought exact nature of which they could not aver, suit against Milton S. Lee, husband of the de and prayed that she be required to come in fendant, in the district court of New Mexico. and set up her interest, if any, and that tiJudgment was rendered in the courts of that tle be quieted in them. state on April 20, 1911. On February 1st [1, 2] The case of Wagner v. Law settled Milton S. Lee conveyed the land now in con- two legal propositions. They are: A credittroversy to respondent by deed sufficient in or may levy an execution upon property form. The property is situate in the county theretofore conveyed in fraud of his right of Kitsap, in this state. At the same time and sell it without resort to a creditor's bill Lee conveyed to respondent 480 acres of land and without having an execution returned in the state of Arkansas. The deed to the nulla bona; and, second, if he brings an acKitsap county land was recorded in the of- tion to quiet the title acquired at an execufice of the auditor on the 7th day of Febru- tion sale, he must go further than to assert ary, 1911.

merely that the sale was made in fraud of On June 19, 1911, the judgment creditors his rights, as was done in Wagner v. Law. began an action upon the foreign judgment, He must allege and prove that the grantor making Lee and his wife defendants. The had no other property out of which he could Lees are nonresidents. Service was obtained have satisfied the judgment. The case has by publication after the lands had been sub- been followed in: Hamilton Brown Shoe Co. jected to an attachment. The defendant V. Adams, 5 Wash. 335, 32 Pac. 92; Samuel Elizabeth M. Lee, respondent here, made an- v. Kittenger, 6 Wash. 266, 33 Pac. 509; Sawswer, tendering the general issue, and that telle v. Weymouth, 14 Wash. 21, 43 Pac. 1101; the court rendering the judgment had ob- Preston Parton Mill Co. v. Dexter Horton tained no jurisdiction over her or the sub-Co., 22 Wash. 236, 60 Pac. 412, 79 Am. St. ject-matter of the action. Judgment was en Rep. 928. In the latter case the court said tered on June 29, 1912, against Milton S. of Wagner v. Law: Lee and the community consisting of Milton "A careful examination of this case shows S. Lee and Elizabeth M. Lee. The property that it was an action by the judgment creditor was thereafter sold at sheriff's sale to these to set aside a fraudulent conveyance which was

alleged to be a cloud upon plaintiff's title. The appellants. The sale was confirmed and a plaintiff was a creditor, and had, under execusheriff's deed executed. Thereupon appel- tion, purchased the property. The real ques·lants brought an ordinary suit to quiet title tion in the case seemed to be that the judgto the land as against the outstanding deed to set aside the fraudulent conveyance after

ment creditor bad a right to maintain his action of the defendant.

he had enforced his execution under his judgAfter a trial upon the merits the court, ment; that it was not then too late for him to following the case of Wagner v. Law, 3 maintain his action. The suit was between the

judgment creditor and the fraudulent grantor Wash. 500, 28 Pac. 1109, 29 Pac. 927, 15 L. R. and grantee. But it was also held in that A. 784, 28 Am. St. Rep. 56, as we are told, case that the complaint did not state facts suffiheld that plaintiffs could not recover un-cient to constitute a cause of action, when it

failed to allege that there was no other property der their complaint. It is not clear from the of the judgment creditor at the time of the conrecord, but it would seem, that the court veyance out of which the creditor could satisfy treated the action as a suit by creditors to his judgment." subject land alleged to have been conveyed It is clear that appellants' complaint is bad in fraud of their rights to the payment of under the doctrine of these cases, unless, as their claims, and, under the authority of the it is contended, the burden was upon the decase mentioned, held that it was necessary fendant wife to come forward and plead and for the plaintiffs to allege and prove that prove that the deed was executed in good the debtors had no other property subject to faith, or that appellants were not creditors execution at the time the conveyance wes having an existing equity. made, and rendered a judgment in favor of [3, 4] After mature consideration and a rethe defendant upon the theory that the com- reading of the cases referred to, we are inplaint did not state a cause of action.

clined to hold that one who questions a deed Appellants contend: First, that they are must plead the facts upon which he relies. within the rule of Wagner v. Law, if it be This must of necessity be so, unless we adin point; and, second, that it is not in point, mit appellants' contention that a deed from for the reason that in that case the convey- a husband to his wife is "presumptively ance was not made by a husband to a wife, fraudulent." If it is not to be treated as a and therefore "presumptively fraudulent” as void thing as to third parties, the complaint to creditors; and, further, that the case went is clearly insufficient. Appellants contend in off on demurrer, whereas the present case their brief that it is a void deed. The comwaz tried upon its merits, and we will, under plaint does not in any way describe the deed, veals the relationship of the parties. To "As between the parties (husband and wife] hold the complaint good would permit a the conveyance was absolute and good as against plaintiff to claim title merely and put a de- tinues, “no 'interest, legal or equitable remained

the grantor," so good in fact, as the court confendant to the burden of setting up the deed in the grantor upon which a lien of a judgment which is assumed to be fraudulent and the subsequently rendered could attach." Sawtelle facts which are relied on to exonerate it from v. Weymouth, 14 Wash. 27, 43 Pac. 1101. an imputation arising from the single fact The effect of such deeds has been considthat the grantor was a husband and the ered by the court in Klosterman v. Harringgrantee a wife.

ton, 11 Wash. 138, 39 Pac. 376; Hayden v. If the law is as appellants inist it is, they Zerbst, 49 Wash. 107, 94 Pac. 909; Shorett would be entitled to judgment on the plead- v. Signor, 58 Wash. 95, 107 Pac. 1033; Powings unless defendant had set up the good ers v. Munson, 74 Wash. 237, 133 Pac. 453; faith of the deed, although it is nowhere Smith v. Weed, 75 Wash. 452, 134 Pac. 1070. mentioned in the pleadings. On the other In Malloy v. Benway, 34 Wash, 315, 75 Pac. hand, if respondent had set up the deed and 869, the court said, in considering the effect nothing more in answer to a complaint charg- of a deed made by a husband to his wife: ing no fraud, but only title and an outstand- “We think that it is a safe general rule to asing adverse interest, defendant would be en- by proper motives; that therefore good faith

sume that parties in their dealings are actuated titled to a judgment on the pleadings, for with regard to such dealings will be presumed the obvious reason, as we shall show, that until the contrary is alleged or made to apthe deed was neither fraudulent nor “pre- pear.” sumptively fraudulent." In other words, re- If any effect at all is to be given to the spondent is not to be put to her burden of statute, it should follow that one who quesproof (there is no presumption; the differ- tions a deed from a husband to a wife should ence in these terms is explained in Welch v. at least plead the making of the deed and a Creech, 153 Pac. 355) until a charge of fraud plain and concise statement of the facts that actual or constructive is made. This is but give him standing to question it. Otherwise another way of saying that appellants' com- we would be put to the holding that a defendplaint does not state a cause of action. ant might be put to the burden of pleading no

We understand the rule governing the con- fraud where none is alleged. duct of a creditor who questions a transac- [6] The statute relied on (section 5292) puts tion of the kind now under consideration, as the burden of proving the good faith of the it is gathered from our decisions, to be: If transaction upon a wife who is the grantee he levies an execution and sells property as- of her husband, but it nowhere exempts the sumed to be conveyed in fraud of creditors, transaction of the ordinary rules of pleading. he may do so, but such proceeding will not [7] Fraud is never presumed. The burden remove the cloud of an outstanding deed. If of pleading fraud is always on the one who, he does so sell, and would remove the cloud, asserts it. he must make a direct attack upon the deed It is said in Wagner v. Law, supra, there by alleging its fraudulent character, and by is no substantial distinction between a case pleading and proving that his debtor has no that is brought before and one that is brought other property out of which he can satisfy after a sale, and, further, that it is better his debt.

to have a uniform practice, regardless of the [5] Expressions to the effect that a deed particular proceeding adopted by the credifrom a husband to a wife is "presumptively tor. fraudulent" have crept into some of our opin- [8, 9] In this connection it is not out of ions. Dill v. Carver, 70 Wash. 103, 126 Pac. place to say that it may well be doubted 86; Patterson v. Bowes, 78 Wash. 476, 139 whether appellants' complaint sets up an exPac. 225. In its proper setting of fact this isting equity. The mere assertion of a hosstatement may be true, but it cannot be laid tile title—the complaint goes no further down as a fundamental either of substantive would hardly fall within the definition of law or of pleading. Such a deed may be the term. questioned as any other deed, and, if attack- “One must be said to have an existing equity ed by a sufficient pleading and preliminary when he has an existing right to future payment, proof, the burden is upon the one who claims though it be contingent, of which it would be

inequitable to deprive him." Sallaske v. Fletchthe benefit of the transaction to explain it by er, 73 Wash. 596, 132 Pac. 648, 47 L. R. A. clear and satisfactory evidence. One wbo (N. S.) 320, Ann. Cas. 1914D, 760. would do so must be a creditor having an Nor do we think that appellants can reexisting equity--a cause of action—at the cover under our holdings that, where a trial time of the transfer, and he must allege the has proceeded on the merits, we will deem the relationship, the transfer, and that the gran- pleadings amended to conform to the proofs. tor is without other property to satisfy his Sections 307, 1752, Rem. & Bal. Code. This debt. Whenever the question has been square- case comes to us upon disputed facts, and ly put up to the court, it has held that a to apply the rule of the statute we must find deed from a husband to his wife carries no that the party who invokes it has sustained his presumption of fraud. Such deeds have the right to maintain the case by competent evisanction of the statute (Rem. & Bal. Code, 8 | dence. If there are no facts, there can be 8766).

no amendment. The trial court made no

finding of facts. What purports to be find- “Thereupon the plaintiffs introduced as plainings are no more than the legal conclusions tiffs' Exhibit A the deed of purchase issued by that respondent has title and appellants have dall covering the premises described in plain

the sheriff of said county to the plaintiff Crannot.

tiffs' complaint. The plaintiffs also introduced Granting that, if the proofs were other as plaintiffs' Exhibit B all of the records and wise sufficient, we would hold that we would files in cause No. 2637 in said Kitsap county

entitled “William Crandall and J. N. Conn, consider the pleading amended so as to al-Plaintiffs, v. Milton S. Lee and Wife, Defend lege that Milton S. Lee had no other prop- ants, including, also the depositions in said erty out of which the debt could be satisfied, cause of the said defendants Lee and wife. The appellants still could not attack the deed to dence as defendants Exhibit 1, the deposition

defendant herein thereupon introduced in evirespondent or invoke the aid of the statute of in this cause of the defendant herein, Elizaamendments unless they first show that the beth M. Lee, the wife of said Milton S. Lee, debt which is the basis of their claim was and also introduced, as defendants' Exhibit 2,

the certain deed to the said premises in controthat of a creditor having an existing equity versy executed by the defendant Milton S. Lee at the time the deed was made. Otherwise to his said wife Elizabeth Lee.” the deed is good as between the parties and The findings of fact in the action in which as against all the world. It is not "presump- the sale was had recites no more than the tively fraudulent.” It may be actually or rendition of the judgment in the courts of constructively fraudulent as to such credi- New Mexico upon the 20th day of April, tors as the statute makes the object of its 1911, and the judgment, no more than that: solicitude, and who have proved themselves to "The same is hereby established and declared have sufficient standing to put the respondent to be a valid lien upon all the interest of the to her proof. The true rule can be best stat- defendant Milton S. Lee individually, and the

community interest of Milton S. Lee and Elizaed by resort to two of our former decisions,

beth M. Lee, his wife, in the lands," etc. “While it may be true that a conveyance from

We know of no rule that would bind the a husband to a wife is not of itself a badge of fraud, either under the rule of the statute or the respondent beyond the terms of the judggeneral rule cited, it is nevertheless a fact, ment. It is clear, therefore, that appellants which naturally awakens suspicion, lends great have not proved that they stand in the shoes er weight to other unfavorable circumstances, of a creditor having an existing equity at and will be for that reason set aside upon less proofs of fraud than will a transaction between the time the deed to the respondent was made parties not having the same confidential rela- under the doctrine of Henry v. Yost, supra, tion." Bates v. Drake, 28 Wash. 456, 68 Pac. and Eggleston v, Sheldon, 85 Wash. 422, 148 961.

Pac. 575. "To attack the validity of a conveyance, the person asserting the fraud must be one who has Affirmed. been injured by the fraud; and accordingly a creditor of the debtor may so attack the con

MORRIS, C. J., and MOUNT, ELLIS, veyance. A conveyance made without consideration is presumptively fraudulent as to exist- and FULLERTON, JJ., concur. ing creditors of the grantor. However, there is no presumption that such a transfer was made with a view to defraud subsequent creditors. It becomes material, then, to determine TRIANGLE TRADERS et al. v. CITY OF whether Henry was a creditor of Yost and wife when the deed to Schroeder was executed."

BREMERTON. Henry v. Yost, 152 Pac. 714.

In re TRUNK SEWER, LOCAL IMPROVE

MENT DIST. NO. 62. It will be seen, therefore, that there is no place to apply the rule, for appellants have

(No. 12701.) not proven the debt which was the founda- (Supreme Court of Washington. Jan. 11, 1916.) tion of the foreign judgment to have been

1. MUNICIPAL CORPORATIONS 514-PUBLIC either "an existing debt" or "an existing IMPROVEMENT-ASSESSMENT. equity" at the time the deed was executed. In view of Laws 1911, § 42, p. 469, deFor these reasons the cases relied upon by claring that, when any assessment, whether the the appellants, Brown v. Baldwin, 46 Wash. same shall be an original assessment, an assess106, 89 Pac. 483, Plath v. Mullins, 151 Pac. sessment, or

ment upon omitted property, a supplemental as

reassessment, shall be declared 811, and Benbam v. Hawkins, 82 Wash. 390, void, the council of such city or town shall make 144 Pac. 532, are not in point.

a new assessment or reassessment upon the If, after a trial upon the merits, the court the improvement, a city is entitled, an assess

property which has been or will be benefited by can find from the facts or from the fair in- ment for a public sewer having been set aside ferences of facts that a material fact has because the provisions of Laws 1911 relating to been proven, although not pleaded, the court publication and the spreading of the assessment

were not strictly followed, to make a reassesswill readily apply the rule of these cases, ment. but in none of our decisions, do we appre- [Ed. Note.-For other cases, see Municipal hend, has the court ever substituted for a Corporations, Cent. Dig. 88 1207–1215; Dec. material fact the grace and favor of the stat- Dig. Om514.] ute.

2. MUNICIPAL CORPORATIONS O 562–PUBLIC (10) After reciting the appearances, the

IMPROVEMENTS-SETTLEMENTS.

Where a contractor for the construction of trial judge certifies the course of the trial to a sewer was under the contract entitled to

compensation for extra work, a settlement for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

be:

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