tions for the erection of the building, outside of the signing of the writing, to his putting in a bid, and being told by Gilmore that it was his job. It was possible to make a contract of this kind, for a work of this magnitude, in this way; and, if nothing further had been said or done, it might now be held that there was a contract for the erection of a building according to the plans and specifications upon which the bid was predicated, for the sum of $98,000. But this contract would have been absolutely without other terms, except such as the law would imply, or the parties might agree upon by their words or conduct afterwards. There would have been no time for completion except that dictated by reason, no right on the part of the owners to superintend, no right on their part to change the plan of the building in any respect, and no right in either party to have disputes settled by arbitration. Probably the least satisfactory term of this contract to the respondent would have been that he would have had no right, upon architect's certificates, to demand and receive partial payments every two weeks, amounting to 90 per cent. of the finished work, but would have had to await payment of the gross sum on completion of the whole work. Respondent testified, however, that it was the understanding that there were to be two written contracts,-one for $96,000, and the other for $2,000. He supposed that the writing spoken of was the principal contract, and took possession of one copy of it as such. Afterwards he ask there resulted a final certificate made by the architect showing a statement of the account on the basis proposed by Gilmore, and a balance due respondent of $9,863.43. This certificate was delivered to respondent, and by him carried and delivered to Gilmore, who forthwith gave him a bank check for the amount, containing on its face, after the amount, the following: "Which is payment in full for all claims in the construction of the Gilmore & Kirkman Building." The check was paid in due course, April 2, 1890. In February, 1891, respondent commenced this action, alleging a contract entered into about March 1, 1889, between himself and Gilmore and Kirkman for the erection of the building, in accordance with the plans and specifications prepared by the architect named in the writing referred to, for the sum of $98,000; the facts constituting his claim for extra work, in the sum of $6,653; and that he had been paid only $96,263. Judgment was demanded in the sum of $8,390. No reference was made to the purported final settlement. The answer pleaded the writing referred to, as the only contract ever entered into between the parties; the facts constituting the opposing claims of the defendants as above noted; and the alleged final settlement as an accord and satisfaction. There was also an allegation that the signing of the writing by Gilmore was done by him, and was accepted by plaintiff as a sufficient execution of the contract; that Gilmore was duly authorized in that behalf by Kirkman, who adopted the instrument; and that all parties acted upon it as the contract of Gil-ed Gilmore for the other one, and it was more and Kirkman. The reply was a general denial of the new matter in the answer, except that there was an admission that $259.50 should be credited for uncompleted work. It will thus be seen that the theory of the plaintiff's action was an express contract for the erection of the building for the sum of $98,000, ignoring the written agreement (because it was not signed by Kirkman) and the alleged final settlement. defense maintained the integrity of the written contract, either by sufficient execution or through subsequent assent by the conduct of the parties, and the finality of the settlement. Judgment was for the full amount demanded in the complaint. The errors alleged relate wholly to the denial of the motion for a nonsuit, and the motion for a new trial on the ground that the verdict was against the law and the evidence, and to the matter of charging the jury. The 1. The respondent having rejected the writing as a contract, his first duty in the case was to establish in his favor an express contract, binding upon Gilmore and Kirkman. Failing in this, the action must result against him, since he could not be permitted to recover upon quantum meruit, he having neither pleaded nor given evidence in support of such a cause of action. His own testimony attempted to limit all the negotia promised him, but he did not get it. Who was to be the architect, when the building was to be completed, and what were to be the terms of payment, were all left to be fixed up in the written agreement. He supposed this; it was customary. The written agreement was signed by respondent, after it had been carefully read by him, Upon these facts, we think it impossible to conclude otherwise than that the utmost that can be said of the bid and all other matters preceding the signing is that they constituted an agreement for a contract, and not a contract for the erection of the building. But, if this be not so, then, inasmuch as respondent asserts that he had a contract, some of whose terms were left to be stated in a writing, this paper which he signed must be considered as the highest evidence of what those terms consisted. Goff v. Steamship Co., 9 Wash. 386, 37 Pac. 418. At this point it must be remembered that this case is unlike those cases, some of which have been cited to us, where the action was upon an alleged contract, and the defense was no sufficient signature of the instrument intended to evidence a contract; or where the suit was upon quantum meruit, and the answer set up an express contract. Here both parties allege a contract, and the material subject of inquiry is as to what its terms were. By his testimony as to what it was agreed should be in the writing, respondent himself supplies part of the necessary information, and by his action the rest is made clear. He submitted to the control of the architect named in the writing as the person who was to have superintendence of the building. He received a number of partial certificates for sums due, "as per contract dated March 8th," which was the date of the writing; and the sum of these was exactly 90 per cent. of the whole price named in the writing, that being the percentage therein agreed upon as the proportion to be paid as the work progressed. Every payment made to him was by check in favor of "Megrath & Collins," his explanation of this fact being that Collins was his bondsman; but, unless the writing evidenced the contract, Collins was not his bondsman, there was no bond at all, and no reason for accepting checks payable in that manner. He accepted the appraisement of the architect of the extra work without objection to his assumption of authority in the matter. And, finally, when the question of settlement was up, he at no time denied the existence of the contract as a binding agreement, although all of Gilmore's claims were based upon it, and it was constantly referred to as his justification for them. He objected to the claim for insurance, not because he had not made a contract for it, but because he claimed that it had been intended that Redward alone should furnish it, respondent expecting to do the mason work only, which would not burn, and Redward the woodwork, which would burn. So, as to the demurrage, he never suggested that he had not contracted to have the building completed at the dates named in the writing, and that he was not bound to allow rebates in the sums named therein for each day's overtime. But he asserted that the delays had been caused, in the first place, by the appellants failing to have the ground ready; secondly, because the trenches for the foundation were insufficient; and, thirdly, because the Seattle fire so disarranged things that it was impossible for him to proceed faster. His complaints were entirely to the effect that he was being unfairly and unjustly treated under the contract, and not that he was being illegally treated, because there was no contract covering the points in dispute; and, upon being asked what was said at the last meeting before the settlement, he answered: "I wanted to arbitrate, as his agreement called for,-if any question, any dispute, it would be left to arbitration. I called his attention to the fact that, if there was any question in that contract that called for arbitration, I wanted him to appoint his man, and I appoint mine, and they two should choose the third." But, outside of the writing, there was no basis for arbitration. The verdict of the jury, from its amount, was plainly based upon the assumption that the terms of the agreement consisted of nothing but the respondent's bid, and the oral acceptance of it, which was against the clear weight of evidence furnished by the respondent himself, as well as against the numerous appropriate instructions of the court; and it should have been promptly set aside, and a new trial granted for that reason. It was not within the province of the jury to ignore admitted facts, and base its finding upon the mere claim of the respondent, set up for the first time after the full execution of his work. We are of opinion, however, that the case was not one which called for the granting of a nonsuit at the close of plaintiff's evidence, as the most, and the most important, of the respondent's admissions, were made upon the rebuttal, after the writing had been admitted in evidence. 2. The particulars concerning the alleged settlement have been stated as far as the undisputed facts go. But the respondent's position is that, notwithstanding the formalities of the architect's final certificate and the contents of the check for the balance therein stated to be due, he did not, in fact, accept this payment as a satisfaction of his claims, and it was not understood to be so accepted by Gilmore. He says that Gilmore was punctilious about settling on the strict terms of the contract, and claimed the demurrage, which respondent refused. But Gilmore said: "I will only settle on the strict terms of this contract. Then I can turn right around, and pay you my half of this money, and Kirkman can do as he likes with his half." Still respondent refused; but afterwards the architect, out of Gilmore's presence, assured him that, to avoid a long lawsuit, he would better fix it up that way; that Gilmore was merely stubborn, but would do him no wrong; and that he would get every dollar of his money. Upon that he told the architect to go ahead, and received the certificate and check. The architect seems to have confirmed respondent's testimony on these points to the extent that he gave him to understand that the acceptance of the final certificate would not preclude him from making a further claim. Gilmore, of course, denied any such transaction. These facts, under the authorities, justified the court in submitting to the jury, by its third instruction, the question whether Gilmore gave the check, and the respondent accepted it, as a full settlement of their matters of difference, or not. Frick v. Algeier, 87 Ind. 255; Association v. Wickham, 141 U. S. 564, 12 Sup. Ct. 84; Hart v. Boller, 15 Serg. & R. 162; Stone v. Miller, 16 Pa. St. 450; Hardman v. Bellhouse, 9 Mees. & W. 596. Upon the whole case, we are of the opinion that the material questions which should have been submitted to the jury, under the evidence, were: First. Was there an agree ment to make a full settlement? Second. If there was no settlement, what, if any, demurrage, at the contract rates, ought to be charged to the respondent? Concerning the extra work there should have been no submission, since the evidence clearly showed a reference of that matter to the architect, under the terms of the contract, a finding by him that the value of the extras was $4,497.21, and an acceptance of that award, with the added gratuity suggested by Gilmore, raising the amount to $5,000. So, also, the insurance, being covered by the contract, should not have been submitted. The judgment is reversed, and remanded for a new trial in accordance with this opinion. DUNBAR, C. J., and HOYT and ANDERS, JJ., concur. SCOTT, J., concurs in the result. (10 Wash. 354) MAYER v. WOOLERY, Sheriff, et al. (Supreme Court of Washington. Dec. 26, 1894.) ATTACHED PROPERTY-CLAIM BY THIRD PERSONFILING OF BOND-AFFIDAVIT BY CLAIMANT. 1. Code, §§ 491, 493, provide that the condition of a bond given to the sheriff in proceedings to obtain possession of attached property shall be that claimant will appear in the superior court within 10 days after the acceptance of the bond, and make good his title to the property, and that the sheriff shall file the bond and affidavit in court. Held, that failure to file the bond until some months after delivery thereof, pending which time claimant took no steps to make good his title, did not affect his right to the attached property, as defendant in attachment could require the sheriff to file the bond. 2. Defendant in attachment cannot object that the affidavit required by Code. § 491, was not filed by claimant with the sheriff before the delivery of the property to claimant. Appeal from superior court, King county; R. Osborn, Judge. Action by Laramie Mayer against J. H. Woolery, sheriff, and George McDade. From a judgment for plaintiff, defendants appeal. Affirmed. Shank & Smith, for appellants. Ira Bronson, for respondent. HOYT, J. This was a proceeding to obtain possession of attached property under the provisions of section 491 et seq. of the Code of Procedure. When the case was first called to the attention of the superior court, it appeared that the bond and affidavit required by the statute to be delivered to the sheriff by the claimant had not been filed with the clerk of the court, and that no action in reference thereto had been taken by the claimant until some months after having obtained possession of the property from the sheriff. Growing out of the alleged default of the claimant in this respect, objections to hearing the cause were made on the part of defendants. These were overruled by the court, and its action in so doing constitutes the alleged error which is most relied upon here. It is contended that since, under the statute, the claimant is required to appear and make good his title to the property within 10 days, the effect of his having taken no steps to that end until long after the expiration of that time was to forfeit any rights which he might have had, growing out of the proceeding. In our opinion, the statute does not authorize such a mandatory construction. Upon the bond and affidavit being filed with the clerk, it was his duty to docket the cause, and it stood for trial the same as any other, and either party could have taken the initiatory steps to that end. And the sheriff was as much the agent of the attaching defendant as of the claimant in filing, or neglecting to file, the bond and affidavit. See Peterson v. Wright, 9 Wash. 202, 37 Pac. 419. It is further objected that it was not made to appear that the affidavit required by the statute had ever been filed with the sheriff, and that by reason of the failure to file it the claimant had lost the right to prove his title to the property. This objection, if sustained, would deprive defendants of any standing in court. The sheriff, having attached the property, could legally surrender it to the claimant only upon the provisions of the statute in that regard having been complied with; and if, without such compliance, he abandoned the possession of the property, he would lose all right thereto. If the sheriff surrendered the property to the claimant, he could not thereafter object that the provisions of the statute had not been complied with; and his action in that regard would, for the purposes of this proceeding, bind the plaintiff in the attachment suit. It follows that the action of the superior court in overruling the objections and in allowing a substituted affidavit was what it should have been, and that it rightfully proceeded to a trial of the cause upon its merits. Appellants claim that upon such trial reversible error was committed in the rejection of certain testimony offered by them, and in the instructions to the jury. The specifications of error are too numerous to receive individual attention. Those relating to the Introduction of testimony can all be grouped together, as the action of the court in relation thereto was founded upon substantially the same ground. The property in question was a quantity of shingles, which the claimant had taken from the Jamieson-Dixon Mill Company in payment of certain indebtedness due from it to the Merchants' National Bank, for which he acted as trustee. The defendants claimed the right to possession under attachment proceedings against the same company, and sought to show that the sale to the claimant was invalid. For this purpose they sought to introduce proofs as to transactions other than those relating to the shingles. The court refused to allow them to do this, but stated that they might prove anything which tended to show a want of good faith in the transaction as to the prop erty involved in the suit. There were some loose claims by the defendants that knowledge of the transactions as to which they oftered proof was necessary to a full understanding of the transaction as to the shingles, but their position in that regard was not sufficiently made known to the court to justify us in reversing the judgment. The court allowed the greatest latitude as to the showing of everything connected with the transaction concerning the shingles, and the action of said mill company and the claimant in reference thereto, both at the time of and after the alleged sale; and, if error in that regard was committed, it was against the respondent, and not such as would avail appellants upon appeal. It was further contended that there was testimony which showed that said mill company was insolvent at the time it made the transfer, and that for that reason it was void as against creditors. That a sale by a corporation, even if insolvent, is not absolutely void, was held by this court in Holbrook, Merrill & Stetson v. Peters & Miller Co., 8 Wash. 344, 36 Pac. 256. From what was said in that case it follows that, even if the corporation was insolvent at the time it made this transfer, the defendants were not in a position to avoid the sale on that account. It also follows from what was said in that case that the court correctly interpreted the law in its instructions to the jury. The judgment must be affirmed. DUNBAR, C. J., and SCOTT and STILES, 2. A contract giving defendants the right to the exclusive use of a kind of oil can, controlled by plaintiffs, in the business of selling oil, and binding them to pay a certain royalty to plaintiffs on all oil sold, recited that, "in case the business is not being conducted to the satisfaction of" plaintiffs, "they shall notify" defendants, "and, if not corrected to the satisfaction of" plaintiffs, they may demand the business to be turned over to them; and, should any disagreement arise as to the claim, "then both parties hereto agree to leave the question in dispute to the arbitration of three disinterested men.' Held, that this did not require the submission of the question of the amount due for royalties to arbitration. 3. In an action on a contract, nonjoinder of a party defendant cannot be taken advantage of by general demurrer. 4. Where a contract, for the right to the exclusive use of a patent oil can in consideration of certain royalties on all oil sold, recognizes assignments of the contract, it is not necessary, in an action to recover the royalties on oil sold, after the assignment by one party of his interest therein, to make the assignor a party defendant. 5. Where the assignment shows that it was made sometime during the year 1893, and the complaint alleges that the royalties are due on oil sold from January, 1893, to November, 1893, inclusive, and that the oil was sold by the assignee and the remaining original party to the contract, under the agreement, it sufficiently shows that the assignee is a proper party. Appeal from superior court, King county; R. Osborn, Judge. Action by C. Van Horne and Otis Sprague against C. A. Watrous and H. A. Hankerson to recover money due under contract. From a judgment dismissing the action, plaintiffs appeal. Reversed. Pratt & White, for appellants. Ira Bronson, for respondents. STILES, J. The court below sustained the general demurrer to the plaintiffs' complaint. The plaintiffs elected to stand upon their complaint, and judgment was rendered dismissing the action, and for costs. Respondents' motion to dismiss was not well taken. Supply Co. v. Brand, 7 Wash. 357, 35 Pac. 72, was decided upon a different state of facts. In that case there was no standing upon the pleading, but the plaintiff was given time to amend. That was the only record there was in the case. The complaint here shows that appellant Van Horne and one Derrickson entered into an agreement with respondent Watrous and one Culver, August 22, 1892, the substance of which was that Van Horne and Derrickson should procure and furnish to Watrous and Culver certain "Paragon" oil cans, and the latter were to have the exclusive right to use the cans in their business of selling oil in the city of Seattle. In consideration of the procurement and use of the cans, for which Van Horne and Derrickson had the exclusive right in the state of Washington, Watrous and Culver undertook and agreed to pay for the oil cans at a price agreed upon; to supply themselves with the necessary equipments to begin and continue the sale of oil and gasoline in said cans in the city of Seattle and its suburbs, and to prosecute that business with diligence; and also to pay Van Horne and Derrickson a royalty of two cents per gallon for the oil and gasoline purchased by them for sale in the business aforesaid. The royalty was to be paid on the 2d day of January, 1893, and thereafter on the 1st day of each and every month during the continuance of the agreement. This suit was brought to recover the sum of $700, alleged to be the royalty upon 35,000 gallons of oil and gasoline disposed of between January and November, 1893, inclusive. The first ground of objection to the complaint seems to have been that the matter of royalty was not submitted to arbitrators arter a method provided for in the contract. The arbitration clause occurs immediately after the stipulation of Van Horne and Derrickson to furnish the oil cans, and is as follows: "And it is further agreed that, in case the business is not being conducted to the satisfaction of the first parties [Van Horne and Derrickson], they shall notify said second parties, and, if not corrected at once to the satisfaction of said first parties, they may demand the said business to be turned over to them; and, should any disagreement arise between the first and second parties as to the claim, then both parties hereto agree to leave the question in dispute to the arbitration of three disinterested men, to be appointed as follows: And said * second parties agree that, upon the decision of said committee that they have failed to perform any of the stipulations herein contained within a reasonable time, that this agreement shall become void and of no effect, and that they will turn over all cans in their possession in the business of their customers, and also all equipments they may have on hand necessary for running said business, to said first parties; and said first parties shall pay to said second parties whatever price for the same that the said arbitration committee may place thereon." Then follow, in the agreement, the stipulations on the part of Watrous and Culver. The first contention of the respondents is that the words "as to the claim," used in the arbitration clause of the contract, apply to any and every ground of action which Van Horne and Derrickson might at any time have against them under the contract. Appellants maintain, however, that this phrase only applies to the decision of the question whether or not the business was being conducted as it ought to be, and matters connected therewith; and we think their contention is correct. It certainly has no application to the matter of the royalty, which is a fixed and liquidated sum, payable at certain stated times. Courts will enforce contracts to arbitrate disputes, and make the decision of arbitrators final, where the parties to a contract make it clearly to appear that such was their intention; but, whenever they leave it doubtful whether such a method of settling a disputed question was intended to be left to the final decision of arbitrators, the construction is in favor of the right to resort to the courts for redress in the usual manper. It is also objected that the action, is not prosecuted against Culver, but is prosecuted against the respondent Hankerson. If this be pleaded as a suggestion of a defect of parties, it is a point not well taken, because not capable of being raised under a general demurrer. If it is objected that no sufficient reason is shown for bringing Hankerson into the case, a sufficient answer is that the contract recognizes assignments, and shows an assignment by Culver to Hankerson. The date of the assignment is not stated, but it is alleged to be on a certain day in 1893, and that the oil dealt in was purchased and sold in the course of business, under the agreement, by Watrous and Hankerson. So, also, the suggestion that Derrickson was not a party is not well taken, since it affirmatively appears that Derrickson assigned his interest in the contract to Sprague. Upon the whole, we think that facts sufficient were stated to constitute a cause of action upon the royalty, and that the judgment dismissing the suit should be reversed. So ordered. DUNBAR, C. J., and HOYT and SCOTT, JJ., concur. (10 Wash. 531) WOODING v. JOHN WOODING CO. et al. (Supreme Court of Washington. Jan. 8, 1895.) REMOVAL OF RECEIVER-APPEALABLE ORder. 1. A creditor who was not a party to the action by a stockholder for the appointment of a receiver for the corporation cannot, by motion filed in the stockholder's action, have the decree appointing a receiver set aside for fraud, but should bring a separate action for that purpose. 2. An order denying such a motion is not appealable, as it does not affect any substantial right of the creditor. Appeal from superior court, King county; J. W. Langley, Judge. Action by John Wooding against the John Wooding Company to have a receiver appointed. A receiver was appointed, and, without intervening, W. I. Vail, and others, copartners as the Northwestern Shoe Company, judgment creditors of defendant, filed a motion to vacate the order appointing a receiver, and from a denial of this motion now appeal. Appeal dismissed. H. E. Snook, for appellants. S. H. Piles and I. B. Knickerbocker, for respondent. STILES, J. Upon the complaint of a stockholder of the corporation known as the John Wooding Company the superior court appointed a receiver of the corporate property, 'whereupon appellants, who were judgment creditors, filed a motion in the stockholders' action to vacate the order appointing a receiver. In aid of this motion an affidavit was filed, showing the judgment obtained by affiants, that the plaintiff in the original case was the president of the corporation, and that no notice of the application for a receiver was given to affiants. It was also alleged that the complaint did not state facts sufficient to entitle the plaintiff to the appointment of a receiver. The court heard the motion, but denied it, and this appeal is from that order. A motion was made to strike respondent's brief, but we shall not discuss or decide it, as the result would be the same whether the respondent had filed a brief or not. Appellants' first point is that there was really no action pending, but that the receivership was a collusive proceeding between the nominal plaintiff and the corporation, intended to get the property into the hands of a receiver for the purpose of hindering and delaying creditors. So far as |