payment of an indebtedness for sacks furnished the mortgagor the previous year. [Ed. Note. For other cases, see Chattel Mortgages, Cent. Dig. §§ 228-236; Dec. Dig. 138.] Department 2. Appeal from Superior Court, Adams County; O. R. Holcomb, Judge. Action by the German-American State Bank against the Seattle Grain Company. Judgment for plaintiff, and defendant appeals. Affirmed. Wakefield & Witherspoon, of Spokane, for appellant. G. E. Lovell, of Ritzville, for respondent. MORRIS, C. J. Respondent was the holder of two chattel mortgages upon the wheat crop of one Setters, an Adams county farmer, the amount secured by these mortgages being $9,500. After the wheat was harvested Setters delivered approximately 1,000 bushels of the grain to appellant in payment of an indebtedness of $666.40 for sacks furnished the previous year. Appellant, upon receiving the grain, placed it in its warehouse in a common mass with other grain of like quality purchased by appellant from other farmers. This fact coming to the knowledge of respondent, it began a foreclosure of its mortgages, making Setters only defendant. A decree of foreclosure was entered, the property in Setters' possession sold, and a deficiency judgment entered against Setters in the sum of $1,656.60. Thereupon respondent commenced this action against appellant to recover the value of the wheat obtained by it from Setters claiming a conversion. Judgment was entered in its favor, and the grain company appeals. [1-3] It is contended first that the foreclosure action is a bar to this action. The argument supporting this claim is that, it appearing that respondent knew prior to the commencement of the foreclosure proceeding that appellant was in possession of a portion of the wheat, it was a necessary party to the foreclosure proceeding if respondent intended to hold it liable for the value of the wheat in its possession. This contention is not sound. Appellant was a proper, but not a necessary, party to the foreclosure suit. The mortgages gave respondent a lien upon the wheat, of which appellant had notice through the public records. When, therefore, it took the wheat from Setters and commingled it with its own, it was an act of conversion. The lien of the mortgages still existed, and these liens were not lost when the bank sought judgment on its debt together with a foreclosure of its security. The foreclosure proceeding resulted in a deficiency judgment against the mortgagor, and when the security failed to extinguish the debt the mortgagee had the right to proceed against any person who had converted any part of the security, and this right was in nowise dependent upon whether the one so converting was or was not a party to the foreclosure proceedings. La Rue v. St. Anthony & D. Elevator Co., 17 S. D. 91, 95 N. W. 292; Boydston v. Morris, 71 Tex. 697, 10 S. W. 331. [4] The judgment for the debt in the foreclosure action operated neither as a waiver nor a release of the security. Muncie National Bank v. Brown, 112 Ind. 474, 14 N. E. 358. [5] The second contention is that respondent was equitably bound to pay the sack account due appellant upon which the wheat obtained was credited. In the face of respondent's lien and its right to proceed against either the property or the person wrongfully appropriating it, it is needless to discuss any equities resting in appellant. Whatever its rights may have been they were subject to those evidenced by respondent's liens. The judgment is affirmed. BAUSMAN, MAIN, PARKER, and ELLIS, JJ., concur. RODGERS v. FIDELITY & DEPOSIT CO. TICE. Under Rem. & Bal. Code, § 1161, giving a right of action for labor and material furnished upon a public work as against the contractor's bond if, within 30 days after the complework by the public, the person performing lation of the contract with and acceptance of the bor, etc., shall present to the public board, council, etc., a notice in writing that he has a claim bond, signed by the claimant, the filing of such in a certain amount against the contractor's notice of claim is an absolute prerequisite to a right of action on the bond; and a paper filed by one who had furnished labor and material to the contractor for a state hospital, addressed to the state board of control, inclosing a statement of an unsettled balance due, was insufficient as a notice of claim, and, as the surety has a right to know what claims are made against it, it was not liable to an action on the bond. [Ed. Note.-For other cases, see States, Cent. Dig. § 98; Dec. Dig. 101.] Department 2. Appeal from Superior Court, King County; Everett Smith, Judge. Action by Charles W. Rodgers, doing business as the Charles W. Rodgers Company, against the Fidelity & Deposit Company of Maryland. Judgment for plaintiff, and defendant appeals. Reversed. Trefethen & Grinstead, of Seattle, for appellant. Alfred Gfeller, of Seattle, for respondent. PARKER, J. The plaintiff, Charles W. Rodgers, seeks recovery upon a bond executed by the defendant, Fidelity & Deposit Company of Maryland, under the provisions of sections 1159-1161, Rem. & Bal. Code, relating to security for labor and materials furnished upon public works. The trial was before the superior court without a jury, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes resulted in findings and judgment in favor of the state, county or municipality, or other pubthe plaintiff, from which the defendant haslic body, city, town or district, a notice in writing in substance as follows: appealed. "To (here insert the name of the state, county or municipality or other public body, city, town or district): dollars (here "Notice is hereby given that the undersigned (here insert the name of the laborer, mechanic or, subcontractor, or materialman or person claiming to have furnished labor, materials or provisions for or upon such contract or work) has a claim in the sum of insert the amount) against the bond taken from (here insert the name of the principal and surety or sureties upon such bond) for the work of (here insert a brief mention or description of the work concerning which said bond was taken). "(Here to be signed) In August, 1911, T. Strauser & Son, contractors, entered into a contract with, the state of Washington for the construction of a building for the Northern Hospital for the Insane. Appellant became surety upon the contractors' bond, the bond being conditioned as prescribed by section 1161, Rem. & Bal. Code. Respondent furnished labor and material to the contractors in the construction of the building. In December, 1912, the building being completed, it was accepted by the state board of control. About the time of the completion and acceptance of the building respondent filed with the state board of control a paper which he claims was sufficient notice of his claim against the bond as required by section 1161, Rem. & Bal. Code. The paper so filed with the board of control by respondent reads as follows: "Seattle, Nov. 29, 1912. "State Board of Control, Olympia, Wash.Gentlemen: Inclosed we hand you statement of unsettled balance due us on labor and material furnished T. Strauser & Son for the North-ed notice of claim, it seems that argument is ern Hospital for Insane, Sedro Woolley, Wash., that proper precautions may have been taken. "Yours respectfully, "Chas. W. Rodgers Co., "By A. P. Robinson. "P. S.-Will you please let us know with what bonding company this company is bonded on this work? Inclosed find stamp for reply. "R." "Chas. W. Rodgers Co., Jobbers and Contractors, "Seattle, Nov. 27, 1912. "F. Strauser & Son, Spokane, Wash. "Aug. 28. Balance..... .$1001.69. "Balance due on labor and material furnished them in Northern Hospital for Insane, Sedro Woolley, Wash. "To State Board of Control, Olympia Wash." The only question we are called upon to consider is as to the sufficiency of this communication to the board of control as a notice of claim against the bond executed by appellant as surety entitling respondent to sue appellant as surety upon the bond. This is to be determined from the provisions of section 1161, Rem. & Bal. Code, which, so far as we need here notice them, read as fol lows: All such persons mentioned in said section 1159 shall have a right of action in his, her, or their own name or names on such bond, for the full amount of all debts against such contractor, or for work done by such laborers or mechanics, and for materials furnished or provisions and goods supplied and furnished in the prosecution of such work, or the making of such improvements: Provided, that such persons shall not have any right of action on such bond for any sum whatever, unless within thirty days from and after the completion of the contract with and acceptance of the work by the board, council, commission, trustees, or body acting for the state, county or municipality, or other public body, city, town or district, the laborer, mechanic or subcontractor, or materialman, or person claiming to have supplied materials, provisions or goods for the prosecution of such work, or the making of such improvement, shall present to and file with such board, "Such notice shall be signed by the person or corporation making the claim or giving the notice; and said notice, after being presented and filed, shall be a public record open to inspection by any person." In view of the language of section 1161, above quoted, that "such persons shall not have any right of action on such bond for any sum whatever" unless they "shall present to and file with such board" the prescrib hardly necessary to demonstrate that the filing of such notice of claim is an absolute prerequisite to the claimant's right to sue the surety upon the bond. Huggins v. Sutherland, 39 Wash. 552, 82 Pac. 112; Crane Company v. Ætna Indemnity Co., 43 Wash. 516, 86 Pac. 849. It seems equally plain to us from the language of the statute above quoted that the claimant must, as a prerequisite of his right to sue the surety upon the bond, state in his notice, at least in substance, that he "has a claim * * against the bond," designating it by naming the principal and sureties, and that it is not sufficient that he make a statement in his notice of claim that amounts to nothing more than a statement of his claim against the contractor, his original debtor. The suretics upon such bonds have a right to know what claims are being made against them, by timely filing of the required notice. It is not enough that the claimant makes some claim against the contractor, his debtor, or against funds which may be due the contractor. This is the substance of our holding in Robinson Manufacturing Co. v. Bradley, 71 Wash. 611, 129 Pac. 382. Counsel for respondent call our attention to and rely upon our decisions in Strandell v. Moran, 49 Wash. 533, 95 Pac. 1106, and Cascade Lumber Co. v. Etna Indemnity Co., 56 Wash, 503, 106 Pac. 158. These decisions, however, as pointed out in Robinson Mfg. Co. V. Bradley, supra, deal with notices which in fact did make a plain statement of claim against the bond, and they are therefore not out of harmony with the conclusion we here reach. We are of the opinion that the paper filed with the state board of control by respondent is not such a notice of claim as is required by the provisions of section 1161, fails to contain any statement by respond-5. MUNICIPAL CORPORATIONS 493 must be reversed. It is so ordered. Respondent, Rodgers, has given notice of and prosecutes a cross-appeal, claiming error of the trial court in disallowing him certain claimed costs and disbursements. In view of our disposition of the appeal of Fidelity & Deposit Company, the cross-appeal of Rodgers need not be further noticed. Appellant, Fidelity & Deposit Company, will recover its costs both in the superior court and in this court. FIRMATION OF ASSESSMENT-EFFECT. subject-matter, assessed tidelands for a public Where a city, having jurisdiction of the improvement and gave due notice of the confirmation of the assessment roll by the city council, and plaintiff lumber company, the owner of tidelands assessed, presented no objection to the confirmation and took no appeal therefrom, such confirmation was a final determination, binding upon all owners of tidelands, including the company. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1091-1093, 11601165; Dec. Dig. 493.] 6. MUNICIPAL CORPORATIONS 426-ASSESSMENT-PUBLIC LANDS-STATUTES. Laws 1915, p. 363, subjecting all leasehold interests and rights of private persons in or to harbor areas within the limits of an incorporated city, etc., to assessment for public improve MORRIS, C. J., and BAUSMAN, HOL- ments, had no effect upon a city's prior assessCOMB, and MAIN, JJ., concur. NORTH AMERICAN LUMBER CO. v. CITY 1916.) 1. MUNICIPAL CORPORATIONS Jan. 20, ments on such interests for local improvements. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1035-1037; Dec. Dig. 426.] Department 2. Appeal from Superior Court, Whatcom County; Ed. E. Hardin, Judge. Action by the North American Lumber 513-PUBLIC Company against the City of Blaine and othJudgment for plaintiff, and defendants Reversed in part, and affirmed in IMPROVEMENTS-ASSESSMENT-TIDELANDS. A lumber company, which in its own behalf had brought an action to enjoin assessments for a public improvement upon its leasehold interests in a harbor area and upon its tidelands, after obtaining an injunction against the proposed improvement on the ground that the leasehold interests were not assessable, had no right to question assessments levied upon tidelands other than those belonging to it. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1188-1193, 1195 1206; Dec. Dig. 513.] 2. MUNICIPAL CORPORATIONS 513-PUBLIC IMPROVEMENTS INJUNCTION JURISDICTION OF MUNICIPALITY. ers. appeal. George D. Montfort, of Blaine, for appellants. Walter B. Whitcomb, of Bellingham, for respondent. PARKER, J. The plaintiff, North American Lumber Company, commenced this action in the superior court for Whatcom county, seeking to enjoin the city of Blaine and its officers from constructing a local street Where a lumber company was assessed for improvement and levying local special asa public improvement upon its leasehold insessments to pay for the same. The trial terests in a harbor area and upon its tidelands, and no objection was made to the assessment resulted in denial of the relief prayed for on the tidelands or any appeal taken therefrom, and dismissal of the action by the superior the fact that the lumber company was seeking court, from which the plaintiff appealed to an injunction by appeal to the Supreme Court this court, and secured a reversal of the from the dismissal of its case in the superior court did not deprive the city of jurisdiction to judgment of the superior court and the reproceed to the completion of the improvement manding of the cause to the superior court, and to assess property assessable for local im- "with instructions to enjoin the improvement provements. as proposed." The decision of this court is reported in 81 Wash. 13, 142 Pac. 438. The cause is again before us upon appeal taken by the city from the judgment entered by the superior court upon the going down of the remittitur, which it is insisted is not the proper judgment to be now rendered, in view of the fact that the improvement was fully constructed, the special assessments levied and confirmed, and bonds issued against the special fund so created, and delivered to the contractor in payment of the improvement, before the rendering of the decision of this court, and while there was no restraining order or injunction in force preventing the city from so proceeding. It will be conducive to clearness to summarize all the controlling facts here, though it will in a meas [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1188-1193, 1195 1206; Dec. Dig. 513.] 3. MUNICIPAL CORPORATIONS 422-PUBLIC IMPROVEMENT - PROPERTY LIABLE TIDETidelands owned by private persons are assessable as any other private property to pay the cost of local improvements. LANDS. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1028; Dec. Dig. 422.] 4. MUNICIPAL CORPORATIONS 426-PUBLIC IMPROVEMENTS-PROPERTY LIABLE-PUBLIC PROPERTY. A leasehold interest in a harbor area leased from the state is not assessable to pay the cost of local improvements. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1035-1037; Dec. Dig. 426.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ure be a repetition of facts appearing in our in that court which rendered it plain that former decision. The tide whatever relief the lumber company was enOn January 20, 1913, the city council of titled to by virtue of our decision could not Blaine declared its intention to improve that be then effectually granted in the terms of an portion of E street lying within the harbor injunction as originally prayed for, since all area and the tidelands in the city and to of the acts of the city which the lumber comassess the cost thereof against the property pany had sought to have enjoined had been benefited thereby, defining the proposed local fully performed by the city. These new facts improvement district, including the property necessary to be here noticed are the followto be assessed. This proposed district in- ing: Immediately on the judgment of the cluded certain portions of the harbor area, superior court being rendered in favor of the which the lumber company held under lease city, it entered into a contract for the confrom the state, and also certain tidelands struction of the improvement at a cost of owned by the lumber company. On Febru- something less than $12,000, which was the ary 17, 1913, after due notice furnishing prop-original estimated cost of the improvement. erty owners an opportunity to protest against The improvement was completed according the making of the proposed improvement, to the contract and as originally contemthe council duly passed Ordinance No. 428, plated by the resolution and ordinance profinally providing for the construction of the viding therefor. Local improvement bonds improvement and for the creation of a local against the district were by the city issued improvement district, including that portion and delivered to the contractor in payment of the harbor area upon which the lumber of the improvement. An assessment roll was company held a leasehold interest from the made up in the usual manner, assessing the state, and also the lumber company's tide- cost of the improvement against the property lands, with other property to be charged by within the district, apportioning approximateassessment with the cost of the improve-ly $2,000 thereof against the harbor area, ment, and for the issuance of local improve- and $10,000 thereof against the tidelands, ment bonds against the special fund to be within the district. The portion of the harcreated by such assessments to pay for the bor area held under lease by the lumber improvement. On March 12, 1913, this action was commenced by the lumber company lands owned by the lumber company were ascompany was assessed $346.92. in the superior court for Whatcom county, sessed $1,796.83. Due notice was given, as praying for an injunction restraining the city from proceeding with the proposed im- the law directs, of hearing before the council provement and assessments and for general upon the question of the confirmation of this relief. The lumber company sued as a gen-assessment roll, and, no objection being made eral taxpayer of the city, as the owner of thereto by any one, the council by ordinance All of this oca leasehold interest in the harbor area to duly confirmed the same. be assessed, and as the owner of certain curred before the rendering of our former tideland blocks to be assessed. The lumber decision holding that the lumber company company rested its right to an injunction was entitled to relief, and at a time when upon the theory that the harbor area was there was no restraining order or injunction not subject to assessment to pay for local in force against the city from so proceeding. improvements and that the city could not After the rendering of our former decision, lawfully make provision for the payment of the city officials seeing that it was without the deficiency which would be caused by its authority to assess the harbor area, the inability to assess the harbor area, because council adopted a resolution canceling all of the fact that it was indebted far beyond assessments made upon the harbor area and the limit prescribed by the state Constitution. directed the city treasurer to cancel the Reference to our former decision will show same upon the assessment roll of the disthat this is in substance the ground upon trict. These new facts being brought to the which it was held that the lumber company attention of the superior court by affidavits was entitled to relief. It will also be no- filed in behalf of both the city and the lumticed that the only instruction to the su- ber company, as to which facts there seems perior court touching the nature of the re- to be no serious dispute, the question was lief it should grant the lumber company is presented to the superior court as to the contained in these concluding words of the nature of the judgment it should enter, to decision: the end that the lumber company should have such relief as it was entitled to in the light of our former decision. The matter being thus presented to the superior court, it entered a judgment annulling each and all of the assessments made upon the property within the district, adjudging and decreeing: "The judgment is reversed, and the cause remanded, with instructions to enjoin the improvement as proposed." North American Lumber Co. v. Blaine, 81 Wash. 13, 18, 142 Pac. 438, 439. When the remittitur went down to the superior court for entry of final judgment in accordance with our decision, both the city and the lumber company brought to the attention of that court by affidavits facts oc "That each and every of the said assessments is canceled and the defendants, and their successors in office and all persons acting or to act by, through, or under them, be and they are collecting the said assessments or any part, thereof. impeachable because of their being regularly levied upon due notice and remaining unCounsel for the city contends that the lum- challenged by the owners of the property so ber company is in no event entitled to any assessed. Indeed, such seems to be their greater relief, at this time, than the cancel- status as shown by the record. lation of the assessment upon the harbor [2] The more serious question here presentarea and the prevention of the city's satisfy-ed is: Has the lumber company the right to ing any deficiency caused by such cancellation by making the same a charge upon its general fund, and that since all of the assessments upon the harbor area have been voluntarily canceled by the city, and the city disclaims all intention of satisfying the deficiency so resulting, by causing the same to be made a charge upon its general fund, it becomes of no consequence whether the city be enjoined to this extent or not. Counsel for the city also contends that the lumber company is not entitled to any relief as against the assessment levied upon its tidelands because of its failure to make any objection thereto to the city council when the assessment roll was before the city council upon due notice for confirmation, and also contends that in no event has the lumber company any right to have canceled the assessments made against the other tidelands within the district in which it has no interest. Counsel for the lumber company contends that it is entitled to relief to the full extent granted by the final judgment of the superior court from which this appeal is taken. These contentions, we understand from the record before us, were also made in the superior court. Counsel for the lumber company invoke the general rule, as stated in the text of 22 Cyc. 966, as follows: "The decree may afford complete relief as to injuries that have been consummated since the suit was begun; for, even though no temporary injunction was obtained, defendant acts at his peril in doing pendente lite the acts sought to be enjoined.' now have canceled the assessment levied upon its tidelands? Now, we have seen that all of these assessments against the lumber company's tidelands were also levied upon due notice; that no objection was made thereto by the lumber company or any one, nor was appeal to the courts taken therefrom; and that this was all done at a time when there was no restraining order or injunction in force preventing the city from so proceeding. Manifestly, the fact that the lumber company was then seeking an injunction by appeal to this court from the dismissal of its case in the superior court, to prevent the city from so proceeding, did not deprive the city of jurisdiction in the premises. The irregularity occurring in the inception of the local improvement proceedings by inclusion of the harbor area in the assessment district may have been sufficient to then entitle the lumber company, as a taxpayer and also as the owner of property to be assessed, to have the court "enjoin the improvement as proposed," as was held in our former decision; but that did not deprive the city of jurisdiction to proceed with the improvement and assessments in so far as it was seeking to charge by assessment property which was assessable for local improve ments. [3-5] Now, plainly the tidelands owned by private persons, as these lands are, are assessable as any other private property, to pay the cost of local improvements, while, as held in our former decision, harbor area For present purposes we may assume that and leasehold interests therein are not asthe lumber company is entitled to have the sessable to pay the cost of local improveassessments upon the harbor area canceled, ments. Hence the city had jurisdiction of and also to have the city enjoined from the subject-matter of assessing such tidecharging its general fund with any portion of lands, while it did not have jurisdiction over the cost of the improvement, since the city is the subject-matter of assessing harbor areas not here insisting that it has the right to or leasehold interests therein. That the have such assessments enforced, or to so city's jurisdiction was complete as to the tidecharge its general fund. But the question lands, so far as the assessment proceedings of the power of the court to now cancel and and notice of hearing before the council upenjoin the collection of the assessments which on the question of confirmation of the roll is have been regularly levied against the tide- concerned, seems plain from this record. lands upon due notice, and not appealed deed, that such notice was given as the law from to the courts, is quite another matter. directs is not here questioned. It is also [1] In so far as the assessments levied up- plain that no objections to any of the assesson the tidelands other than those belonging ments were presented to the council, nor to the lumber company are concerned, we was any appeal taken to the courts from the do not see that it has any right whatever to confirmation of the roll. Why, then, is not question such assessments. It is true it orig- the confirmation of this assessment roll a inally brought proceedings looking to the en- final determination binding upon all owners joining of the construction of the improve- of tidelands, including the lumber company, ment; but it brought this action only in its so assessed? The reason that it is not bindown behalf, so manifestly it cannot complaining upon the owners of leasehold interests of assessments upon lands in which it has in harbor area is because the city had no juno interest. Such assessments may be un-risdiction over the subject-matter of assess In |