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there resulted à final certificate made by the tions for the erection of the building, outarchitect showing a statement of the account side of the signing of the writing, to his puton the basis proposed by Gilmore, and a ting in a bid, and being told by Gilmore that balance due respondent of $9,863.43. This it was his job. It was possible to make a certificate was delivered to respondent, and contract of this kind, for a work of this by him carried and delivered to Gilmore, magnitude, in this way; and, if nothing furwho forthwith gave him a bank check for ther bad been said or done, it might now be the amount, containing on its face, after the held that there was a contract for the erecamount, the following: "Which is payment tion of a building according to the plans and in full for all claims in the construction of specifications upon which the bid was predithe Gilmore & Kirkman Building.” The cated, for the sum of $98,000. But this concheck was paid in due course, April 2, 1890. tract would have been absolutely without

In February, 1891, respondent commenced other terms, except such as the law would this action, alleging a contract entered into imply, or the parties might agree upon by about March 1, 1889, between himself and their words or conduct afterwards. There Gilmore and Kirkman for the erection of the would have been no time for completion exbuilding, in accordance with the plans and cept that dictated by reason, no right on the specifications prepared by the architect part of the owners to superintend, no right named in the writing referred to, for the on their part to change the plan of the buildsum of $98,000; the facts constituting his ing in any respect, and no right in either claim for extra work, in the sum of $6,653; party to have disputes settled by arbitraand that he had been paid only $96,263. tion. Probably the least satisfactory term Judgment was demanded in the sum of $8,390. of this contract to the respondent would No reference was made to the purported have been that he would have had no right, final settlement. The answer pleaded the upon architect's certificates, to demand and writing referred to as the only contract ever receive partial payments every two weeks, entered into between the parties; the facts amounting to 90 per cent of the finished constituting the opposing claims of the de- work, but would have had to await payfendants as above noted; and the alleged final ment of the gross sum on completion of the settlement as an accord and satisfaction. whole work. Respondent testified, however, There was also an allegation that the signing that it was the understanding that there of the writing by Gilmore was done by him, were to be two written contracts,--one for and was accepted by plaintiff as a sufficient $96,000, and the other for $2,000. He supexecution of the contract; that Gilmore was posed that the writing spoken of was the duly authorized in that behalf by Kirkman, principal contract, and took possession of who adopted the instrument; and that all one copy of it as such. Afterwards he askparties acted upon it as the contract of Giled Gilmore for the other one, and it was more and Kirkman. The reply was a gen- promised him, but he did not get it. Who eral denial of the new matter in the answer, was to be the architect, when the building except that there was an admission that was to be completed, and what were to be $259.50 should be credited for uncompleted the terms of payment, were all left to be work. It will thus be seen that the theory fixed up in the written agreement. He supof the plaintiff's action was an express con- posed this; it was customary. The written tract for the erection of the building for the agreement was signed by respondent, after sum of $98,000, ignoring the written agree- it bad been carefully read by him. Upon ment (because it was not signed by Kirk- these facts, we think it impossible to conman) and the alleged final settlement. The clude otherwise than that the utmost that defense maintained the integrity of the writ- can be said of the bid and all other matters ten contract, either by sufficient execution preceding the signing is that they constior through subsequent assent by the conduct tuted an agreement for a contract, and not of the parties, and the finality of the settle- a contract for the erection of the building. ment. Judgment was for the full amount But, if this be not so, then, inasmuch as redemanded in the complaint. The errors al- spondent asserts that he had a contract, leged relate whoily to the denial of the mo- some of whose terms were left to be stated tion for a nonsuit, and the motion for a new in a writing, this paper which he signed trial on the ground that the verdict was must be considered as the highest evidence against the law and the evidence, and to the of what those terms consisted, Goff v. matter of charging the jury.

Steamship Co., 9 Wash. 386, 37 Pac. 418. 1. The respondent having rejected the At this point it must be remembered that writing as a contract, his first duty in the this case is unlike those cases, some of which case was to establish in his favor an express have been cited to us, where the action was contract, binding upon Gilmore and Kirk- upon an alleged contract, and the defense man. Failing in this, the action must result was no sufficient signature of the instrument against him, since he could not be permitted intended to evidence a contract; or where to recover upon quantum meruit, he having the suit was upon quantum meruit, and the neither pleaded nor given evidence in sup- answer set up an express contract. Here port of such a cause of action. His own tes- both parties allege a contract, and the matetimony attempted to limit all the negotia- rial subject of inquiry is as to what its terms were. By his testimony as to what upon the assumption that the terms of the it was agreed should be in the writing, re- agreement consisted of nothing but the respondent himself supplies part of the neces- spondent's bid, and the oral acceptance of sary information, and by his action the rest it, which was against the clear' weight of is made clear. He submitted to the control evidence furnished by the respondent himof the architect named in the writing as the self, as well as against the numerous apperson who was to have superintendence of propriate instructions of the court; and it the building. He received a number of par- should have been promptly set aside, and tial certificates for sums due, “as per con- a new trial granted for that reason. It was tract dated March 8th,” which was the date not within the province of the jury to igof the writing; and the sum of these was nore admitted facts, and base its finding upexactly 90 per cent. of the whole price on the mere claim of the respondent, set up named in the writing, that being the per- for the first time after the full execution of centage therein agreed upon as the propor- his work. We are of opinion, however, that tion to be paid as the work progressed. the case was not one which called for the Every payment made to him was by check granting of a nonsuit at the close of plainin favor of “Megrath & Collins," his ex- tiff's evidence, as the most, and the most planation of this fact being that Collins was important, of the respondent's admissions, his bondsman; but, unless the writing evi- were made upon the rebuttal, after the writdenced the contract, Collins was not bis ing had been admitted in evidence. bondsman, there was no bond at all, and no 2. The particulars concerning the alleged reason for accepting checks payable in that settlement have been stated as far as the manner. He accepted the appraisement of undisputed facts go. But the respondent's the architect of the extra work without ob- position is that, notwithstanding the forjection to his assumption of authority in malities of the architect's final certificate the matter. And, finally, when the question and the contents of the check for the balof settlement was up, he at no time denied ance therein stated to be due, he did not, the existence of the contract as a binding in fact, accept this payment as a satisfacagreement, al ugh all of Gilmore's claims tion of his claims, and it was not understood were based upon it, and it was constantly to be so accepted by Gilmore. He says that referred to as his justification for them. He Gilmore was punctilious about settling on objected to the claim for insurance, not be- the strict terms of the contract, and claimed cause he had not made a contract for it, but the demurrage, which respondent refused. because he claimed that it had been in- But Gilmore said: "I will only settle on the tended that Redward alone should furnish strict terms of this contract. Then I can it, respondent expecting to do the mason turn right around, and pay you my half of work only, which would not burn, and Red- this money, and Kirkman can do as he likes ward the woodwork, which would burn. with his half." Still respondent refused; So, as to the demurrage, he never suggested but afterwards the architect, out of Gilthat he had not contracted to have the build- more's presence, assured him that, to avoid ing completed at the dates named in the a long lawsuit, he would better fix it up writing, and that he was not bound to allow that way; that Gilmore was merely stubrebates in the sums named therein for each born, but would do him no wrong; and that day's vvertime. But he asserted that the he would get every dollar of his money. Updelays had been caused, in the first place, on that he told the architect to go ahead, by the appellants failing to have the ground and received the certificate and check. The ready; secondly, because the trenches for architect seems to have confirmed respondthe foundation were insufficient; and, third- ent's testimony on these points to the exly, because the Seattle fire so disarranged tent that he gave him to understand that the things that it was impossible for him to acceptance of the final certificate would not proceed faster. His complaints were entire- | preclude him from making a further claim. ly to the effect that he was being unfairly Gilmore, of course, denied any such' transand unjustly treated under the contract, action. These facts, under the authorities, and not that he was being illegally treated, justified the court in submitting to the jury, because there was no contract covering the by its third instruction, the question whethpoints in dispute; and, upon being asked er Gilmore gave the check, and the respondwhat was said at the last meeting before ent accepted it, as a full settlement of their the settlement, he answered: "I wanted to matters of difference, or not. Frick v. Alarbitrate, as his agreement called for,-if geier, 87 Ind. 255; Association v. Wickham, any question, any dispute, it would be left 141 U. S. 564, 12 Sup. Ct. 81; Hart v. Bolto arbitration, I called his attention to the ler, 15 Serg. & R. 162; Stone v. Miller, 16 fact that, if there was any question in that Pa. St. 450; Hardman v. Bellhouse, 9 Mees. contract that called for arbitration, I wanted & W. 596. him to appoint his man, and I appoint mine, Upon the whole case, we are of the opin. and they two should choose the third." ion that the material questions which should But, outside of the writing, there was no have been submitted to the jury, under the basis for arbitration. The verdict of the evidence, were: First. Was there an agreejury, from its amount, was plainly based ment to make a full settlement? Second. If there was no settlement, what, if any, de- statute, the claimant is required to appear murrage, at the contract rates, ought to be and make good his title to the property withcharged to the respondent? Concerning the in 10 days, the effect of his having taken no extra work there should have been no sub- steps to that end until long after the expiramission, since the evidence clearly showed tion of that time was to forfeit any rights a reference of that matter to the architect, which he might have had, growing out of the under the terms of the contract, a finding by proceeding. In our opinion, the statute does him that the value of the extras was $4,- not authorize such a mandatory construc497.21, and an acceptance of that award, tion. Upon the bond and affidavit being with the added gratuity suggested by Gil- filed with the clerk, it was his duty to docket more, raising the amount to $5,000. So, the cause, and it stood for trial the same as also, the insurance, being covered by the any other, and either party could have taken contract, should not have been submitted. the initiatory steps to that end. And the The judgment is reversed, and remanded for sheriff was as much the agent of the attach: a new trial in accordance with this opinion. ing defendant as of the claimant in filing, oi.

neglecting to file, the bond and affidavit. See DUNBAR, C. J., and HOYT and AN- Peterson v. Wright, 9 Wash. 202, 37 Pac. 419. DERS, JJ., concur. SCOTT, J., concurs in It is further objected that it was not made the result.

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 (10 Wash. 354)

the claimant had lost the right to prove his MAYER V. WOOLERY, Sheriff, et al. title to the property. This objection, if sus(Supreme Court of Washington. Dec. 26, 1894.) tained, would deprive defendants of any ATTACIED PROPERTY-CLAIM BY THIRD Person- standing in court. The sheriff, having atFILING OF BOND-AFFIDAVIT BY CLAIMANT. tached the property, could legally surrender

1. Code, &$ 491, 493, provide that the condi- it to the claimant only upon the provisions of tion of a bond given to the sheriff in proceed

the statute in that regard having been comings to obtain possession of attached property shall be that claimant will appear in the superi

plied with; and if, without such compliance, or court within 10 days after the acceptance of he abandoned the possession of the property, the bond, and make good his title to the prop- he would lose all right thereto. If the shererty, and that the sheriff shall file the bond and affidavit in court. Held, that failure to file the

iff surrendered the property to the claimant, bond until some months after delivery thereof,

he could not thereafter object that the pro. pending which time claimant took no steps to visions of the statute had not been complied make good his title, did not affect his right to the attached property, as defendant in attach

with; and his action in that regard would, ment could require the sheriff to file the bond. for the purposes of this proceeding, bind the

2. Defendant in attachment cannot object plaintiff in the attachment suit. It follows that the affidavit required by Code. § 491, was that the action of the superior court in overnot filed by claimant with the sheriff before the delivery of the property to claimant.

ruling the objections and in allowing a sub

stituted affidavit was what it should have Appeal from superior court, King county;

been, and that it rightfully proceeded to R. Osborn, Judge.

a trial of the cause upon its merits. Action by Laramie Mayer against J. H.

Appellants claim that upon such trial reWoolery, sheriff, and George McDade. From

versible error was committed in the rejection & judgment for plaintiff, defendants appeal.

of certain testimony offered by them, and in Affirmed.

the instructions to the jury. The specificaShank & Smith, for appellants. Ira Bron- tions of error are too numerous to receive inson, for respondent.

dividual attention. Those relating to the in

troduction of testimony can all be grouped HOYT, J. This was a proceeding to ob- together, as the action of the court in relation tain possession of attached property under thereto was founded upon substantially the the provisions of section 491 et seq. of the same ground. The property in question was Code of Procedure. When the case was first a quantity of shingles, which the claimant called to the attention of the superior court, had taken from the Jamieson-Dixon Mill it appeared that the bond and affidavit re- Company in payment of certain indebtedness quired by the statute to be delivered to the due from it to the Merchants' National Bank, sheriff by the claimant had not been filed for which he acted as trustee. The defend. with the clerk of the court, and that no ac- ants claimed the right to possession under tion in reference thereto had been taken by attachment proceedings against the same the claimant until some months after having company, and sought to show that the sale obtained possession of the property from the to the claimant was invalid.

For this pursheriff. Growing out of the alleged default pose they sought to introduce proofs as to of the claimant in this respect, objections to transactions other than those relating to the hearing the cause were made on the part of shingles. The court refused to allow them defendants. These were overruled by the to do this, but stated that they might prove court and its action in so doing constitutes anything which tended to show a want of the alleged error which is most relied upon good faith in the transaction as to the prop bere. It is contended that since, under the erty involved in the suit. There were some loose claims by the defendants that knowl- 5. Where the assignment shows that it was edge of the transactions as to which they of

made sometime during the year 1893, and the fered proof was necessary to a full under

complaint alleges that the royalties are due on

oil sold from January, 1893, to November, 1893, standing of the transaction as to the shin- inclusive, and that the oil was sold by the asgles, but their position in that regard was signee and the remaining original party to the not sufficiently made known to the court to

contract, under the agreement, it sufficiently

shows that the assignee is a proper party. justify us in reversing the judgment. The court allowed the greatest latitude as to the

Appeal from superior court, King county; showing of everything connected with the

R. Osborn, Judge. transaction concerning the shingles, and the

Action by C. Van Horne and Otis Sprague action of said mill company and the claim

against C. A. Watrous and H. A. Hankerson ant in reference thereto, both at the time of

to recover money due under contract. From and after the alleged sale; and, if error in

a judgment dismissing the action, plaintiffs that regard was committed, it was against appeal. Reversed. the respondent, and not such as would avail Pratt & White, for appellants. Ira Bronappellants upon appeal.

son, for respondents. It was further contended that there was testimony which showed that said mill com- STILES, J. The court below sustained the pany was insolvent at the time it made the

general demurrer to the plaintiffs' complaint. transfer, and that for that reason it was

The plaintiffs elected to stand upon their void as against creditors. That a sale by a complaint, and judgment was rendered discorporation, even if insolvent, is not abso- | missing the action, and for costs. lutely void, was held by this court in Hol

Respondents' motion to dismiss was not brook, Merrill & Stetson v. Peters & Miller

well taken. Supply Co. v. Brand, 7 Wash. Co., 8 Wash, 314, 36 Pac. 256. From what

357, 35 Pac. 72, was decided upon a different was said in that case it follows that, even if state of facts. In that case there was no the corporation was insolvent at the time it

standing upon the pleading, but the plainmade this transfer, the defendants were not tiff was given time to amend. That was the in a position to avoid the sale on that ac- only record there was in the case. The comcount. It also follows from what was said plaint here shows that appellant Van Horne in that case that the court correctly in- and one Derrickson entered into an agreeterpreted the law in its instructions to the

ment with respondent Watrous and one Culjury. The judgment must be affirmed.

ver, August 22, 1892, the substance of which

was that Van Horne and Derrickson should DUNBAR, C. J., and SCOTT and STILES,

procure and furnish to Watrous and Culver JJ., concur.

certain “Paragon" oil cans, and the latter were

to have the exclusive right to use the cans (10 Wash. 525)

in their business of selling oil in the city of VAN HORNE et al. v. WATROUS et al.

Seattle. In consideration of the procurement (Supreme Court of Washington. Jan. 8, 1895.)

and use of the cans, for which Van Horne

and Derrickson had the exclusive right in RIGHT TO APPEAL-JUDGMENT OF DISMISSAL-Cox

STRUCTION OF CONTRACT-PROVISION FOR ARBI- the state of Washington, Watrous and CulTRATION --ASSIGNMENT OF CONTRACT PARTIES ver undertook and agreed to pay for the oil TO Suit.

cans at a price agreed upon; to supply them1. Where plaintiff elects to stand by his

selves with the necessary equipments to becomplaint, on a demurrer thereto being sustained, he may appeal from a judgment dismissing

gin and continue the sale of oil and gasoline the action.

in said cans in the city of Seattle and its 2. A contract giving defendants the right suburbs, and to prosecute that business with to the exclusive use of a kind of oil can, controlled by plaintiffs, in the business of selling

diligence; and also to pay Van Horne and oil, and binding them to pay a certain royalty

Derrickson a royalty of two cents per gallon to plaintiffs on all oil sold, recited that, "in for the oil and gasoline purchased by them case the business is not being conducted to the

for sąle in the business aforesaid. The roysatisfaction of” plaintiffs, "they shall notify" defendants, “and, if not corrected to the

alty was to be paid on the 2d day of Janusatisfaction of” plaintiffs, they may demand ary, 1893, and thereafter on the 1st day of the business to be turned over to them; and, each and every month during the continushould any disagreement arise as to the claim, "then both parties hereto agree to leave the

ance of the agreement. This suit was brought question in dispute to the arbitration of three to recover the sum of $700, alleged to be the disinterested men.' Hid, that this did not re- royalty upon 35,000 gallons of oil and gasoquire the submission of the question of the

line disposed of between January and No. amount due for royalties to arbitration. 3. In an action on a contract, nonjoinder

vember, 1893, inclusive. of a party defendant cannot be taken advan- The first ground of objection to the comtage of hy general demurrer.

plaint seems to have been that the matter of 4. Where a contract, for the right to the exclusive use of a patent oil can in consideration

royalty was not submitted to arbitrators art. of certain royalties on all oil sold, recognizes

er a method provided for in the contract. assignments of the contract, it is not necessary, The arbitration clause occurs immediately in an action to recover the royalties on oil sold,

after the stipulation of Van Horne and Derafter the assignment by one party of his interest therein, to make the assignor a party de

rickson to furnish the oil cans, and is as fol. fendant.

lows: "And it is further agreed that, in case the business is not being conducted to the So, also, the suggestion that Derrickson was satisfaction of the first parties (Van Harne not a party is not well taken, since it affirmand Derrickson), they shall notify said sec- atively appears that Derrickson assigned his ond parties, and, if not corrected at once to interest in the contract to Sprague. Upon the satisfaction of said first parties, they the whole, we think that facts sufficient were may demand the said business to be turned stated to constitute a cause of action upon over to them; and, should any disagreement the royalty, and that the judgment dismissarise between the first and second parties ing the suit should be reversed. So ordered. as to the claim, then both parties hereto agree to leave the question in dispute to the DUNBAR, C. J., and HOYT and SCOTT, arbitration of three disinterested men, to JJ., concur. be appointed as follows: * * * And said second parties agree that, upon the decision of said committee that they have failed to

(10 Wash. 531) perform any of the stipulations herein con- WOODING V. JOHN WOODING CO. et al. tained within a reasonable time, that this (Supreme Court of Washington. Jan. 8, 1895.) agreement shall become void and of no effect, RemovAL OF Receiver--APPEALABLE ORDER. and that they will turn over all cans in their 1. A creditor who was not a party to the possession in the business of their customers, action by a stockholder for the appointment of and also all equipments they may have on

a receiver for the corporation cannot, by motion

filed in the stockholder's action, have the decree hand necessary for running said business,

appointing a receiver set aside for fraud, but to said first parties; and said first parties should bring a separate action for that purpose. shall pay to said second parties whatever

2. An order denying such a motion is not price for the same that the said arbitration

appealable, as it does not affect any substantial

right of the creditor. committee may place thereon." Then follow, in the agreement, the stipulations on

Appeal from superior court, King county; the part of Watrous and Culver. The first

J. W. Langley, Judge. contention of the respondents is that the

Action by John Wooding against the John words “as to the claim," used in the arbitra

Wooding Company to have a receiver aption clause of the contract, apply to any and

pointed. A receiver was appointed, and, every ground of action which Van Horne and

without intervening, W. I. Vail, and others, Derrickson might at any time have against

copartners as the Northwestern Shoe Comthem under the contract. Appellants main

pany, judgment creditors of defendant, filed tain, however, that this phrase only applies

a motion to vacate the order appointing a to the decision of the question whether or

receiver, and from a denial of this motion not the business was being conducted as it

now appeal. Appeal dismissed. ought to be, and matters connected there- H. E. Snook, for appellants. S. H. Piles with; and we think their contention is cor- and I. B. Knickerbocker, for respondent. rect. It certainly has no application to the matter of the royalty, which is a fixed and STILES, J. Upon the complaint of a liquidated sum, payable at certain stated stockholder of the corporation known as the times. Courts will enforce contracts to ar- John Wooding Company the superior court bitrate disputes, and make the decision of appointed a receiver of the corporate property, arbitrators final, where the parties to a con- whereupon appellants, who were judgment tract make it clearly to appear that such was creditors, filed a motion in the stockholders' their intention; but, whenever they leave it action to vacate the order appointing a redoubtful whether such a method of settling ceiver. In aid of this motion an affidavit was a disputed question was intended to be left filed, showing the judgment obtained by to the final decision of arbitrators, the con- affiants, that the plaintiff in the original case struction is in favor of the right to resort was the president of the corporation, and to the courts for redress in the usual man- that no notice of the application for a reper.

ceiver was given to affiants. It was also alIt is also objected that the action, is not leged that the complaint did not state facts prosecuted against Culver, but is prosecuted sufficient to entitle the plaintiff to the apagainst the respondent Hankerson. If this pointment of a receiver. The court heard be pleaded as a suggestion of a defect of par- the motion, but denied it, and this appeal is ties, it is a point not well taken, because not from that order. capable of being raised under a general de- A motion was made to strike respondent's murrer. If it is objected that no sufficient brief, but we shall not discuss or decide it, reason is shown for bringing Hankerson in- as the result would be the same whether to the case, a sufficient answer is that the the respondent had filed a brief or not. contract recognizes assignments, and shows Appellants' first point is that there was an assignment by Culver to Hankerson. The really no action pending, but that the redate of the assignment is not stated, but it ceivership was a collusive proceeding beis alleged to be on a certain day in 1893, tween the nominal plaintiff and the corpoand that the oil dealt in was purchased and ration, intended to get the property into the sold in the course of business, under the hands of a receiver for the purpose of linagreement by Watrous and Hankerson. dering and delaying creditors. So far as

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