was labor, materials, plant items bought expressly tract to furnish the labor and material to for the work and consumed thereon, liability in- construct another bridge, which is referred surance on pay roll, general supervision, travel- to as "bridge No. 1." ing expenses, and all other expenses such as miscellaneous items chargeable against the job direct. Held, that the contractor did not agree to pay each and every item of expense that the owner might be put to had it built the bridge itself, and its surety was liable only to pay for what actually went into the bridge; the definition of "costs," being merely intended as basis upon which to ascertain if the contractor had made a profit. [Ed. Note. For other cases, see Principal and Surety, Cent. Dig. § 127; Dec. Dig. § 82.*] CHADWICK, J. This action was begun by plaintiff against the defendant to recover the sum of $2,606.44. Judgment was entered against the Northwest Bridge Company and in favor of the American Bonding Company. On January 23, 1911, the bridge company entered into a contract with the plaintiff to furnish all material and labor necessary to construct a bridge over the Satsop river, in Chehalis county, for the sum of $31,000. Payments were to be made as follows: $7,000 on March 10, 1911; $7,000 on April 10, 1911; $10,000 on May 10, 1911, and the balance of $7,000 as soon as the work was completed and accepted. The bridge was to be completed on or before June 15, 1911. The contract provided, among other things, that in the event that the bridge company did not make a profit of 10 per cent. on the cost of the bridge, the plaintiff would make the 10 per cent. good up to a maximum sum of $32,500. The engagement of the bonding company was as follows: "If the said principal shall faithfully perform said contract on its part, according to the terms, specifications, covenants, and conditions thereof (except as hereinafter provided), then this obligation shall be null and void, otherwise to remain in full force and effect." It was further provided: "The said owner shall notify the surety in writing before the last payment, or any reserve due the principal under said contract shall be paid." The bridge company began the construction of the bridge and completed it about August 1, 1911. The contract was completed according to the specifications and no liens have been filed against it. The bridge covered by the contract is referred to in the evidence as "bridge No. 2." It also appears that at the time the contract was made, the bridge company was under con Bridge No. 1 about three-fourths completed at the time work was begun on bridge No. 2, and was entirely completed in March, 1911. The testimony does not show that the bridge company failed to make a profit of 10 per cent. on bridge No. 2. It shows a substantial loss on bridge No. 1, and probably shows that no loss was incurred by the bridge company on bridge No. 2. At the time the first bridge was finished, the bridge company was indebted to the Lumberman's Mercantile Company in a large sum of money, approximately $6,000. Payments on bridge No. 2 were made as follows: $7,000 on March 9, 1911; $7,000 on April 8, 1911; $7,000 on May 8, 1911, and $3,000 on June 13, 1911. The logging company furnished to the bridge company tools, appliances, provisions, and board for its workmen. It also paid to one H. E. Ford, on the bridge company's order, the sum of $1,500 for lumber. All of these sums were charged against the bridge company. On June 30, 1911, the account shows that the plaintiff had paid the bridge company $26,538.90, or $4,538.90 more than was then due under the contract. July 14th the bridge company notified plaintiff that it would not have enough money to meet its obligations, whereupon plaintiff wired the bonding company as follows: "The contractor informs us that the bridge will be ready for acceptance within a few days and that there are outstanding claims and bills to the amount of approximately ten thousand dollars, with a credit still due him as a final payment on the contract of seven thousand dollars, leaving approximately three thousand deficiency which he is unable to meet at this time and which we look to you to protect. Shall we apply the final payment of seven thousand dollars in liquidation of pressing claims and await final settlement of the remaining claims through your office." The bonding company replied as follows: "We consent to your applying balance of contract price in settlement of such lienable claims as may be approved for payment by the Northwest Bridge Company. On This wire will not be construed as an admis sion of liability or waiver of any defenses under bond." At the time the bonding company was notified, there was an actual balance due the bridge company of $4,461.10. Upon receipt of the last telegram quoted, plaintiff paid the following claims: this action. From a judgment dismissing the | engagement. This doctrine is well establishcomplaint the plaintiff has appealed. Weed, and has the sanction of the Supreme will refer to the bonding company as the de- Court of the United States. Union Mut. Life fendant. Ins. Co. v. Hanford, 143 U. S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118. It is suggested in the brief of respondent that the cases Leghorn v. Nydell, 39 Wash. 17, 80 Pac. 833, and Monro v. National Surety Co., 47 Wash. 483, 92 Pac. 408, may be out of harmony with the Peters, Leiendecker, and Black Masonry Cases, and that they are contrary to the current of authority. A re-examination of those cases is unnecessary. In so far as this case goes, they are sufficiently distinguished by what we have said of them in the Black Masonry Case. We agree with the conclusions of the trial judge that the evidence and the bill of exceptions rendered by plaintiff are so confusing that a court cannot determine with any degree of certainty which items are lienable and which are not. Many legal propositions are advanced by the respondent to sustain the judgment. We will not discuss all of them, but content ourselves with inquiring whether plaintiff made overpayments in violation of its contract, and whether there were any misapplications of payments. . [1] It will be remembered that at the time plaintiff notified defendant that the bridge company had defaulted, it told it that there was due the final award of $7,000. If this had been so, no liability would have come to the defendant. In this, however, the plaintiff was mistaken. The notification, nevertheless, must have indicated to the defendant that there had been no overpayment. It accordingly directed that that sum be applied in payment of lienable items. By the terms of the contract, defendant was entitled to have two things concur-notice of the last payment, and that the whole of the reserved payment be at hand at the time notice was given to it. It was the duty of the plaintiff to keep available the remedy that defendant had reserved unto itself. Peters v. MacKay, 20 Wash. 172, 54 Pac. 1122; Leiendecker v. Etna, etc., 52 Wash. 609, 101 Pac. 219; Black v. Natl. Surety Co., 61 Wash. 471, 112 Pac. 517. And this is in accord with the great weight of authority. 32 Cyc. 223; National Bank of Montgomery v. Fidelity & Deposit Co., 145 Ala. 335, 40 South. 415, 5 L. R. A. (N. S.) 418, 117 Am. St. Rep. 45, 8 Ann. Cas. 241. The theory upon which the right of a surety to insist upon the retention of the reserve is based is that he is entitled to have the sum agreed upon held as indemnity, and until his rights and liabilities are determined, and this, says the Supreme Court of the United States, is a "superior equity." Prairie State National Bank v. United States, 164 U. S. 227, 17 Sup. Ct. 142, 41 L. Ed. 412. In U. S. v. Am. Bonding Co. (C. C.) 89 Fed. 930, the case of Rees v. Berrington, 2 Ves. Jr. 540, is quoted with approval. It says: "It is the clearest and most evident equity not to carry out any transaction without the privity of him who must necessarily have a concern in every transaction with the principal debtor. You cannot keep him bound and transact his affairs (for they are as much as your own) without consulting him. You must let him judge whether he will give that indulgence contrary to the nature of his engagement." [2] This court in the cases cited has held that sureties and guarantors are not to be held liable beyond the express terms of their 137 P.-9 [3] We are unable to say just how much of the several amounts paid is made up of lienable items. To a certain extent they are not lienable under the authority of Armour & Co. v. Western Construction Co., 36 Wash. 529, 78 Pac. 1106, and Tsutakawa v. Kumamoto, 53 Wash. 231, 101 Pac. 869, 102 Pac. 766, and payments made thereon are pro tanto misapplied under the rule announced in Crane Co. v. Pacific Heating & Power Co., 36 Wash. 95, 78 Pac. 460, and the whole demand would therefore fall within the rule of confused accounts and be nonlienable under the doctrine announced in Gilbert Hunt Co. v. Parry, 59 Wash. 646, 110 Pac. 541, Ann. Cas. 1912B, 225. [4] Appellant insists, however, that the defendant is bound by the following items in the contract: "It is also further agreed, that if the parties of the second part are unable to show a profit of ten per cent. (10%) on cost of said bridge, piers and approaches, for the sum of $31,000.00, the parties of the first part will make the ten per cent. (10%) good up to a maximum sum of $32,500.00." "By cost it is understood that the same covers all cost of labor, materials, plant items bought expressly for this work and consumed on the same, liability insurance on pay roll, general supervision, traveling expenses and all other expenses, such as miscellaneous items which are chargeable against this job, direct." It is said that defendant was to do for plaintiff what plaintiff did not care to do for itself-to build the bridge and pay for each and every item of expense that plaintiff might be put to had it built the bridge itself. We agree with counsel for respondent that this clause of the contract will not bear such construction, but that the words employed, when read in connection with the condition that the bridge company would furnish all "materials and labor necessary to construct ready for the rails," etc., means that the defendant did not engage itself to pay more than actually went into the bridge, and was chargeable "against the job, direct," under the contract and under the statute, and that the word "cost" should be read in connection with the previous stipulation that if the bridge com pany was unable to show a profit of 10 per cent. on the "cost" of the bridge, plaintiff would pay a profit of 10 per cent. up to $32,500. We think the clause relied on was intended as a basis upon which to ascertain if the bridge company had made a profit, and to limit the amount which appellant agreed to pay over and above the contract price in case a profit was not made. The judgment is affirmed. Bridges & Bruener, of Aberdeen, for appellant. W. H. Abel, of Montesano, and T. H. McKay, of Aberdeen, for respondents. PARKER, J. This is an action to recover damages which the plaintiffs allege resulted to them from the failure of the defendant to cause artificial freshets or "splashes" from its splash dam maintained in the Wishkah river, in Chehalis county, so that their logs could be moved while in the river bed and CROW, C. J., and ELLIS, MAIN, and escape being burned by neighboring forest GOSE, JJ., concur. (76 Wash. 605) MURRAY et al. v. WISHKAH BOOM CO. (Supreme Court of Washington. Dec. 12, 1913.) 1. LOGS AND LOGGING (§ 13*)-PUBLIC SERVICE CORPORATION-LIABILITY. A corporation organized under Rem. & Bal. Code, 7119, to improve a river and to drive, hold, and deliver logs thereon, which improves a river by splash dams and otherwise, in pursuance of section 7122, must, as required by sections 7123, 7124, render service as a public service corporation and is liable for damages from its unreasonable delay to move the logs of another by water stored in its dams. [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. 88 31-35; Dec. Dig. 13.*] 2. TRIAL (§ 260*)-INSTRUCTIONS-REFUSAL OF INSTRUCTIONS COVERED BY CHARGE GIVEN. It is not error to refuse a requested instruction embodied in substance in the instructions given. fires by which they were destroyed. Verdict and judgment were rendered in favor of the plaintiffs, from which the defendant has appealed. Appellant is a driving and boom company, organized as such under the statute of this state, having control of the Wishkah river, in Chehalis county, and has been engaged in driving and booming logs upon that river for something over 15 years. It maintains splash dams in the river and its tributaries by which it creates artificial freshets or "splashes," as termed in logging parlance, in the river from time to time, especially in the summer months when the natural flow of the water is low, for the purpose of driving logs placed therein by those engaged in logging along its banks. For many years prior to May 1, 1910, appellant has created the summer splashes from its dams in months, at intervals of four weeks or oftener, by which logs in the bed of the river could [Ed. Note.-For other cases, see Trial, Cent. be driven out. During those months logs Dig. 88 651-659; Dec. Dig. § 260.*] 3. LOGS AND LOGGING (§ 13*)-PUBLIC SERVICE CORPORATION-LIABILITY. A public service corporation engaged in driving, holding, and delivering logs in a stream which it has improved cannot refuse to release water to float logs for one applying therefor and entitled thereto because of a threatened injunction against its release of water by landowners further down stream, where it has engaged in the service for 15 years or more, and the one applying for the service had cut its logs and placed them in the river, believing that the corporation was able to render the proper service. [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. §§ 31-35; Dec. Dig. § 13.*]| 4. LIMITATION OF ACTIONS (§ 28*)-ACTION ON CONTRACT. An action against a corporation engaged in the business of driving, holding, and delivering logs for its failure to move logs by releasing water from its dams and thereby prevent the destruction of the logs by forest fires is an action on contract within the three years' statute of limitations (Rem. & Bal. Code, § 159). [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 134, 135, 142; Dec. Dig. § 28.*] Department 2. Appeal from Superior Court, Chehalis County; Mason Irwin, Judge. Action by Arch Murray and another, copartners, against the Wishkah Boom Company. From a judgment for plaintiffs, defendant appeals. Affirmed. could not be moved in the river without such splashing because of the natural flow of the water therein being insufficient. The larger portion of the territory along the banks of the river for a distance of 10 or 15 miles had been logged off prior to the year 1910. This rendered such territory subject to frequent forest fires during the dry summer months. During the dry summer months of 1910, forest fires were burning in such territory and were more or less of a menace to logs in the neighborhood, including logs which had been placed in the bed of the river for driving. Prior to May, 1910, respondents had been logging near the river below one of appellant's splash dams and had a considerable quantity of logs cut and ready for transportation down the river. They commenced placing these logs in the river bed about May 10th and finished about June 8th. This was done in the usual manner by rolling the logs over a high bank into the river bed, which caused them to pile up some 30 feet high. Respondents then flattened the pile down considerably by the use of a donkey engine with a line, and thereafter kept their donkey engine in position so as to aid in starting the logs when the next splash came from appellant's dam. The last splash made by appellant was on May 1, 1910, until the fall of that year after respondents' logs It is also plain that appellant had improved the Wishkah river by constructing splash dams and otherwise in pursuance of the statutory powers of such corporations (Rem. & Bal. Code, § 7122), and that it was bound to render service as a public service corporation, of the nature stated in the above-quoted instructions (Rem. & Bal. Code, § 7123). By section 7124, Rem. & Bal. Code, such corporations are rendered liable in damages for failure to properly perform such service by express provision thereof, reading as follows: "Any corporation acting under and in accordance with the provisions of this act shall be liable to the owner or owners of logs or other timber products for all loss or damage resulting from neglect, carelessness, or unnecessary delay on the part of such corporation or its agents." had been burned. Soon after respondents other timber products thereon, may be organhad commenced to place their logs in the ized under the laws of this state." river, about May 14th, they asked appellant for a splash. This appellant neglected to furnish until after the burning of respondents' logs. On August 24th, and during the few days following, being over two months after respondents' logs were put into the river bed, they were destroyed by fire which was communicated to them by one of the forest fires then burning along the river. The existence of the forest fires at that time, and their more or less probable menace to respondents' logs, was known to appellant's officers. There was plenty of water stored in appellant's dam to create a splash sufficient to move respondents' logs during all of this period, especially with the help of respondents' donkey engine and line in starting them. We think the evidence fully warranted the jury in believing these facts. Respondents' claim for damages is rested upon appellant's neglect to splash so as to render the driving of the logs possible and thus remove them from the danger of destruction by forest fires. Counsel upon both sides proceed upon the theory that this is an action for damages resulting from the breach of an implied contract to drive the logs with reasonable dispatch. [1] A considerable portion of the brief of counsel for appellant is devoted to an effort to demonstrate that the degree of care required of a boom company relative to logs placed in a river controlled by such a company is not of that high degree required of a common carrier possessing wholly artificial | means of transportation, and that the trial court's rulings in effect erroneously submitted the cause to the jury upon the theory that such high degree of care was required of the appellant. The court instructed the jury touching the service and care required by law of appellant as follows: "You are instructed the laws of this state require boom and driving companies to boom and drive logs delivered to them for that purpose with reasonable care and diligence, and, if loss of logs occurs on account of unreasonable delay on their part, they are liable for the loss. In this case it is for you to say under all the circumstances whether there was unreasonable delay on the part of this defendant company." It seems plain to us that the instruction above quoted, which we find to be in keeping with other rulings of the court, did not impose upon appellant any higher degree of care than that required by the express terms of the statute relating to such corporations. We deem it unnecessary to follow learned counsel's argument touching the comparative degree of care ordinarily required by driving and boom companies and other carriers possessing wholly artificial means of transportation. [2] Counsel for appellant contend that, so far as its liability is concerned, its delay in splashing and driving the logs down the river was not the efficient proximate cause of the destruction of the logs, because it did not have reasonable cause to anticipate the burning of the logs, and complain of the refusal of the court to give the jury the following requested instruction and others of similar import: "If you believe from the evidence that the defendant did not have reasonable cause to expect that a forest fire would be communicated to these logs, then the plaintiff cannot recover." We do not understand counsel to contend that the court should decide the question of efficient proximate cause in appellant's favor as a matter of law. In any event, it seems clear that such question could not have been so decided by the court in the light of the evidence. The substance of this contention We do not find in the record before us any of counsel is stated in their brief as follows: ruling of the court suggesting to the jury any "We were entitled to have the jury decide higher degree of care than that stated in this under proper instructions whether or not instruction. It is plain that appellant was, the defendant should, under all the circumat the time of the burning of respondents' stances, have known that there was probabillogs, and for many years prior thereto, a cor-ity of the logs being destroyed by fire." poration organized under the statutes of this A reading of the other instructions given state with all the objects and purposes as stated in section 7119, Rem. & Bal. Code, as follows: "Any corporation having for its object, in whole or in part, the clearing out and improvement of rivers and streams in this state, and for the purpose of driving, sorting, holding, and delivering logs and by the court convinces us that they conveyed to the jury the same thought as that suggested by the above-quoted requested instruction, and that the jury were thereby given to understand that appellant was not to be held liable for the destruction of respondents' logs by fire unless it had reasonable cause to apprehend such danger, even though | Ala. 224, 14 South. 56; Railway Co. v. Neal, it may have been somewhat negligent in its 11 Lea (79 Tenn.) 270; Patterson v. Raildelay. We are of the opinion that the re- way Co., 94 Ga. 140, 21 S. E. 2S3. The rule fusal to give the instruction in the language is stated in the text of 25 Cyc. 1033, as folrequested was not prejudicial error. lows: "Viewed with reference to the statute of limitations, an action against a carrier for injury resulting from a breach of contract for safe carriage is one on contract and not on tort." We are of the opinion that the action is not barred by our statute of limitations. Other claimed errors suggested by counsel for appellant, we think, do not call for discussion. The judgment is affirmed. CROW, C. J., and MOUNT and MORRIS, JJ., concur. (76 Wash. 625) STATE ex rel. GREAT NORTHERN RY. CO. v. PUBLIC SERVICE COMMISSION OF WASHINGTON et al. [3] Appellant sought to excuse its delay in splashing by showing that certain landowners during the month of April, 1910, commenced proceedings in the superior court for Chehalis county, seeking to enjoin it from creating splashes in the river, upon the ground that their land would be injured thereby, and that appellant was justified in acceding to such demands of such owners and refraining from splashing until condemnation proceedings could be commenced and prosecuted to acquire such right as against such owners. No injunction was issued, however, in such proceedings. In view of the fact that appellant had been continuing for 15 years or more rendering service as the law required of such corporations, including regular splashings, it seems clear to us that the learned trial court correctly excluded this defense from the cause; such exclusion STATE ex rel. CHICAGO, M. & P. S. RY. CO. being the alleged error complained of by appellant. Manifestly a public service corporation, having been continuously engaged in the service required by law of it, covering a period of 15 years or more, cannot refuse to render such service to one applying therefor and entitled thereto because of a threatened injunction against its continuing business as a public service corporation. It is plain that respondents conducted their log-termined, does not limit the right of review to ging operations and placed their logs in the river with a view to having them transported to market by appellant as a public service corporation upon the faith of such corporation being able to fulfill its duties as such a corporation. Manifestly respondents were justified in this faith in view of the longcontinued operations of appellant and its holding itself out to the public as being able to render such service. [4] It is finally contended on behalf of appellant that this action is barred by the statute of limitations. If the two-year statute were applicable, there would be some ground for appellant's contention in this regard, at least as to a portion of respondents' claim of damage. If the three-year statute is applicable, clearly no part of respondents' cause of action is barred. In section 159, Rem. & Bal. Code, among the causes of action there enumerated as being barred in three years, is the following: "An action upon a contract or liability, express or implied, which is not in writing and does not arise out of any written instrument." While this is an action seeking the recovery of damages for breach of an implied contract, we think it clear, in the light of the authorities, that it is an action upon contract, within the meaning of the statute of limitations. Alabama Great Southern R. R. Co. v. Eichofer, 100 V. SAME. (Supreme Court of Washington. Dec. 13, 1913.) ORDERS OF PUBLIC SERVICE COMMISSION- Public Service Commission Act (Laws 1911, any public service company affected by any or c. 117, 86), authorizing any complainant or der of the commission to apply to the superior court within 30 days after service of the order to have its reasonableness and lawfulness de- 2. CARRIERS (§ 18*)-REGULATIONS-ORDERS An order of the Public Service Commission which directs railroads to establish joint rates, and which gives the railroads a specified time after service of the order to comply and agree on the joint rates, and, in the event of their failure so to do, the commission will by supplemental order establish the rates and fix the division between the railroads, is a final order and an application for its review must be made within 30 days after service thereof, if Public Service Commission Act (Laws 1911, c. 117, § 86), authorizing review of orders of the commission, be construed to limit the review of final orders only. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24; Dec. Dig. 18.*] 3. CARRIERS (§ 10*)-ESTABLISHMENT OF JOINT RATES-AUTHORITY OF PUBLIC SERVICE COM MISSION. Public Service Commission Act (Laws 1911, c. 117, § 83), providing that when any order of the commission shall require joint action by two or more public service companies the order shall specify that the same shall be made at their joint cost, relates to the cost of coupling, and refers to some physical connection between the Service Commission to establish joint rates, companies, and does not authorize the Public which authority is conferred by section 57, au |