fers to the plans and specifications, and states their substance, is sufficient, though they are not attached to the notice.

Appeal from superior court, Whitman county; E. H. Sullivan, Judge.

Action by Henry Mras against R. H. Duff and Luella Duff for the foreclosure of a mechanic's lien, based on a contract for the construction of an hotel by plaintiff for defendants. From a judgment for plaintiff, defendants appeal. Affirmed.

James W. Reid, for appellants. Chadwick & Fullerton, for respondent.

HOYT, C. J. The purported statement of facts was stricken from the record upon the hearing; hence the only alleged error to which we can give attention is the one which attacks the sufficiency of the complaint. Such complaint was filed for the purpose of foreclosing a mechanic's lien; and it is claimed on the part of appellants that it did not state a cause of action, for the reason that the lien notice, a copy of which was therein set out, was insuflicient. The only fault found with such lien notice is that, in stating the terms of the contract, it referred to certain plans and specifications to be furnished by the claimant, which plans and specifications were not set out in the notice. If it clearly appeared from the statement of the terms of the contract that the plans and specifications were necessary to an understanding thereof, and they were not attached to the notice of lien, nor their substance stated therein, the sufficiency of such notice Imight well be doubted. But such was not the fact; for, while there is a reference to the plans and specifications, there is also a statement of their terms and conditions. Such statement, though only by a brief description of such terms and conditions, is sufficient, in the absence of proof that such brief description is not such as to enable the contract to be fully understood. When the statement is made that the plans and specifications are briefly described as follows, and thereafter are given the terms and conditions, it must be assumed, in the absence of proof to the contrary, that the substance of such plans and specifications is as therein stated. The notice of lien was suf ficient, and the complaint stated a cause of action. The judgment will be affirmed.

SCOTT, ANDERS, DUNBAR, and GORDON, JJ., concur.

(11 Wash. 67)

MANEY v. HART. (Supreme Court of Washington. Feb. 6, 1895.) APPEAL STATEMENT OF FACTS-FILING NEW BOND -AMENDMENT OF PLEADINGS-SUIT FOR SERV ICES EVIDENCE AS TO VALUE-ACCEPTANCE,

1. Where respondent failed to file and serve any amendments or objections to the statement of facts as filed by appellant, it was prop

er for the judge to certify the statement without notice to respondent, after 30 days from the service of the notice to him of the filing thereof.

2. Under Laws 1893, p. 125, providing that a new appeal bond may be filed within five days after the judge certifies that the sureties in the original bond are not qualified, a new appeal bond is valid, where appellant, after respondent excepted to the sureties in the original bond, obtained leave to file a new bond without an examination of such sureties by the judge, and filed it, as ordered, within five days from the time fixed for the sureties to testify.

3. In an action for piles furnished, and labor performed in driving them, defendant filed a general denial, and afterwards an amended answer setting up a counterclaim. The latter was stricken out as not having been served on plaintiff, and when the case was called for trial defendant waived the filing of it. At that time plaintiff asked leave to amend the complaint by striking out the allegation of material furnished, and thereupon defendant asked leave to file said amended answer. Held, that it was not error to permit plaintiff to amend, and at the same time to refuse to allow the answer to be filed. Hoyt, C. J., dissenting.

4. Where the plaintiff, in an action for labor performed in driving piles, testified positively, from his own knowledge, as to the value of the services, it was immaterial what he received for services which it appeared, on crossexamination, that he rendered in driving piles for other persons near where he drove those for defendant.

5. On trial of an action for labor performed in driving piles, where it was not shown that defendant requested the work to be done, but it appeared that defendant erected a mill on the piles, it was proper to deny a nonsuit.

6. In an action for labor, where defendant claimed that plaintiff received lumber on the account in suit, with which defendant was not credited, but all the testimony was to the effect that there was no agreement by plaintiff to apply the lumber in payment of said account, a finding for plaintiff for the full amount sued for will not be disturbed.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by J. J. Maney against J. F. Hart to recover for labor performed and materials furnished. Upon instruction of the court, there was a verdict for plaintiff, and from a judgment thereupon defendant appeals. Affirmed.

Andrews & Morris, for appellant. A. R. Titlow, for respondent.

ANDERS, J. The respondent moves this court to strike the statement of facts from the record herein, to affirm the judgment of the lower court, and to render judgment against the appellant and his sureties upon the supersedeas bond filed in this cause, for the reasons (1) that the said statement appears to have been settled more than 30 days after notice to respondent's attorneys of the filing of the same with the clerk of the court below; and (2) that there is nothing in the record showing that the respondent or his attorneys were present when the statement of facts was settled by the court, or that he or they had any notice of the time when or place where application would be made to the judge who tried the cause to settle and certify the statement of facts. It is true that the condition of the record, as to

the matters set forth in the motion, is as therein stated. It is also true that there is nothing whatever in the record showing that the respondent, within the time limited by law, or at any time, filed and served on the appellant any amendments or objections to the statement as filed, and we must therefore presume, as the law presumes, that the respondent agreed to the same. And, that being so, there was nothing for the court to "settle," and it was perfectly legitimate for the judge to certify the statement, in the absence of and without notice to the respondent or his attorneys. Laws 1893, p. 115, § 9. The motion must be denied.

The respondent further moves to dismiss the appeal on the alleged ground that no appeal bond was filed in this cause within five days after service of notice of appeal, as required by law, and that no bond but a supersedeas bond was ever filed in this case. The notice of appeal seems to have been served on the respondent's attorney on October 16, 1893. On the same day, appellant filed with the clerk of the court below a bond which was in form and substance both an appeal and stay bond. Three days thereafter he filed a second bond, similar to the first, except as to sureties. Thus it will be seen that two bonds, instead of one, conditioned as required by law, were filed within the time limited by the statute. The respondent, however, objected to the sufficiency of the sureties on the bond, and the court, with the consent of counsel for the respondent, ordered appellant to file a new bond, which he did on November 2, 1893. The fact that this latter bond was not filed within five days after service of the notice of appeal can in no wise affect its validity, for the law plainly provides that a new bond may be filed within five days after the judge shall certify that the sureties in the original bond are not qualified as required by law. Laws 1893, p. 125. In this case an examination of the sureties was not made by the judge, for the reason that appellant asked and obtained leave to file the new bond witout such examination, and the judge ordered him to do so within five days from the time fixed for the sureties to justify. The motion to dismiss is also denied.

The original complaint in this action, which was filed July 21, 1892, alleged that during the months of August and September, 1891, the plaintiff performed certain labor and furnished certain materials for the defendant, and at his instance and request, for which the defendant promised and agreed to pay the plaintiff what the same were reasonably worth; that the material so furnished and labor performed consisted of driving 126 piles, which were furnished and driven by plaintiff at and about the sawmill of the defendant; and that the reasonable value of said piles and the driving thereof was $2.50 apiece, making in all the total sum of $315, which sum, or any part there

of, has never been paid, although payment thereof has been duly demanded. On September 19, 1892, the defendant answered, denying each and every allegation of the complaint, and subsequently, and on December 23, 1892, filed an amended answer, which, however, the court struck from the files, for the reason that it had not been served on the plaintiff. After the jury was called, but before it was impaneled, the plaintiff asked leave to strike from the complaint those portions thereof alleging that materials were furnished by plaintiff to defendant, and thus modify it so that it would state a cause of action for labor performed merely. The defendant objected to the proposed alteration of the complaint, on the ground of surprise, and that he was not prepared to meet such an issue. But the court allowed the plaintiff to so change the complaint, and the defendant saved an exception. Prior to this time, counsel for the defendant had stated to the court that he did not desire to file an amended answer, but he then asked leave to file the amended answer which the court had previously stricken from the files. The plaintiff objected, on the ground that it set up new matter, and thus tendered new issues. The court sustained the objection, and the defendant excepted. Error is assigned upon each of these rulings of the court.

The point made is that the court abused its discretion both in permitting the plaintiff to amend his complaint by striking out certain allegations thereof, and in refusing to permit the defendant to file his proposed amended answer. If the modification of the complaint had been such as to impose any additional burden or labor upon the defendant in conducting his defense, or to so change the issues as to require further time to prepare for trial, there would be much force in appellant's contention. But, in our opinion, it did neither. If the defendant was ready to go to trial, as he said he was, upon his denial that the plaintiff furnished material and performed labor for him, as alleged in the complaint, he certainly could not have been prejudiced by the fact that, at the trial, the plaintiff disclaimed the right to recover for materials, and changed his complaint accordingly. Moreover, it appears that the claim for materials furnished was inserted in the complaint by mistake of counsel, as the plaintiff himself testified that he never intended to make such a claim, for the reason that he did not furnish the material therein mentioned. We think the court committed no error in allowing the complaint to be thus amended.

Nor do we think the court, under the circumstances, abused its discretion in refusing to permit the defendant to file an amended answer, at the trial, setting up a counterclaim against the plaintiff, after he had once waived the filing of it. This same answer was filed on December 23, 1892, but the plaintiff had no notice of it until March 16, 1893

ings. The motion for judgment was denied, and, as we have already intimated, the amended answer was stricken out on motion of plaintiff. It was simply treated as if it had never been filed, for the reason that it was filed without leave of the court, and without notice to the plaintiff. The application to amend at the time of the trial was therefore properly treated as an original one, and it was for the court to say, in the exercise of a sound legal discretion, whether it should be allowed or rejected. It was apparent to the court that the defendant disregarded the law in filing the proposed amended answer in the first instance, and no reason was given for not making a proper application to amend before the case was called for trial. If the amendment had been allowed, the result would probably have been to delay the trial, and that is always a matter to be considered by the court in determining the rights of the parties. The general rule is to allow amendments in furtherance of justice, good cause therefor being shown, and such is the rule prescribed by our statute (Code Proc. § 221); but we perceive no sufficient reason in this instance for disturbing the decision of the court on the ground of abuse of discretion.

The

It appeared on cross-examination of plaintiff, at the trial, that he had driven piles for other persons besides the defendant, at or near the Snohomish river; and thereupon defendant's counsel asked him what he received for such labor, and under what circumstances and conditions it was performed. questions were objected to by the plaintiff, on the ground of immateriality, and the objection was sustained by the court. The witness, who had been for several years engaged in the business of pile driving, had testified positively, from his own knowledge, as to the value of his services for defendant; and we think that what he charged or received from others for driving piles, at other places, was wholly immaterial, especially in the absence of a showing, or a direct offer to show, that all of the conditions under which the labor was performed were substantially similar to those under which the services were rendered for the defendant. It was shown that the usual price paid for driving piles in that vicinity was from two to three dollars apiece, depending upon the character and condition of the ground, its accessibility, and the difficulty encountered in placing and retaining the machinery in proper position. Several witnesses who assisted in doing the work for which the plaintiff sought to recover testified that $2.50 was a fair and reasonable price for driving each pile driven by the plaintiff, and the defendant did not attempt to dispute this testimony, except indirectly, by way of cross-examination of plaintiff. If the price claimed was unreasonable, it would seem that the defend

The appellant also predicates error upon the refusal of the court to grant a nonsuit, or to direct the jury to return a verdict for the defendant, at the close of plaintiff's case. It is claimed that there was not sufficient evidence to support a verdict for the plaintiff, for the reason that it was neither shown that the services for which compensation was demanded were rendered at the request of the defendant, nor that they were rendered with his knowledge and accepted by him. That the fruits of the plaintiff's labor were accepted by the defendant there can be no doubt, for the evidence unequivocally shows that he erected a sawmill upon the very piles driven by the plaintiff. And although the plaintiff simply testified that one Davis, and not the defendant, requested him to do the work, we, nevertheless, think it would be going too far to hold, under the facts in evidence, that the plaintiff failed to prove a sufficient cause for the jury. If it was not proved affirmatively that Davis was the agent of the defendant, it did appear that the defendant ratified his acts by availing himself of the labor obtained thereby. The motions were properly denied.

Lastly, it is insisted that the verdict is too large, because the proof shows that the plaintiff's foreman received $82 worth of lumber from the defendant on this account. But the purport of the testimony, as a whole, upon. this point, is to the effect that there was no agreement on the part of the plaintiff to apply the value of the lumber received by his foreman in part payment of the account in suit. Payment was not pleaded by defendant, and, of course, could not be proved, under the issue raised by a general denial of the allegations of the complaint. And all of the evidence touching this question was | brought out on cross-examination of plaintiff, and was therefore undisputed. What it proved was a question for the jury to determine, and we are not disposed to question their finding.

The judgment is affirmed.

conveys land, receiving an oral assurance from the grantee that he will reconvey on request, the grantee having, however, no intention to reconvey, the agreement to reconvey is not within the statute of frauds.

2. One who induces an old and ignorant person, having implicit confidence in him, to convey to him laud, under the false representations that it is the best thing to do to avoid a pretended claim, and under a parol agreement to reconvey the land on request, cannot, in defense to a suit to rescind the conveyance, claim that the deed was made in fraud of the grantor's creditors.

Appeal from superior court, Yakima county; Carroll B. Graves, Judge.

Action by Martin Rozell against Oscar Vansyckle, George J. Gardiner, Cora Gardiner, and others. From a judgment for plaintiff, defendants George J. Gardner and Cora Gardner appeal. Affirmed.

Jones & Newman, for appellants. John G. Boyle and Reavis & Milroy, for respondent.

GORDON, J. Respondent brought this action in the superior court of Yakima county to secure the cancellation of two deeds to real property described in the complaint, one given by the respondent to the defendant Oscar Vansyckle, and the other given by said Oscar Vansyckle to the appellant George J. Gardiner. The defendants Vansyckle and the appellants Gardiner, appearing separately in the court below, interposed demurrers, which were overruled, and thereafter filed separate answers. Trial was had upon the issues joined, and judgment rendered in favor of plaintiff, from which judgment the appellants Gardiner alone appealed.

The first assignment of error urged upon our attention is the ruling of the court upon the general demurrer to the complaint in the action. The pleadings in the cause are very voluminous, and it is enough to say that the character of the complaint is sufficiently disclosed in this opinion, and, for reasons hereafter set out in disposing of the case upon the evidence, we think that the demurrer was properly overruled. The complaint alleges, substantially, and we think the evidence abundantly shows, that in May, 1890, the respondent was the owner of 80 acres of valuable land in Yakima county. He was then an old man, very ignorant, could neither read nor. write, was mentally weak, and, as shown by the testimony of his immediate neighbors and persons who had been intimately acquainted with him for years, was incompetent to attend to ordinary business, and wholly incapable of managing or transacting affairs of importance. That he had theretofore had dealings with one J. H. Conrad, resulting disastrously to him in a financial sense. That he was easily alarmed, and was easily imposed upon, and that the defendant Vansyckle was greatly his superior in mental sagacity. That at and immediately prior to executing the deed to Vansyckle, in May, 1890, he feared that Conrad was seeking to establish a false claim against

him, and for the purpose of protecting the land in question therefrom he sought the advice of Vansyckle. It is set out in the complaint, and fully established by the evidence, that the respondent had implicit confidence in Vansyckle, and relied upon him to advise him safely as to the best means of protecting his property against what he apparently considered the unauthorized and unjust claim of Conrad. He seemed to think that he was unequal to cope with Conrad, and there is evidence tending to show that he had theretofore been the victim of a fraud practiced upon him by Conrad. But, however that may be, the evidence is abundant to establish the fact that his mind was filled with the belief that Conrad was attempting to unjustly establish a false claim which would be asserted against the land in question, and under such circumstances he sought the advice of Vansyckle, in whom, as has been said, he appeared to have implicit confidence, and upon whose counsel he unreservedly relied. It further appears that, as a result of his conference with Vansyckle, respondent executed a deed of the premises, and delivered the same to said Vansyckle; that the respondent was induced thereto by the assurances of the said Vansyckle that he would hold the premises in trust for the plaintiff, and reconvey them to plaintiff upon his request. The testimony shows that prior to the making of the deed Vansyckle assured him that he had had experience in transactions of like character with other parties, and also encouraged the respondent to make the deed, and by his conduct and conversation added greatly to the fears, apprehensions, and excitement under which respondent then labored concerning Conrad. No consideration was paid or promised on the part of Vansyckle for this conveyance. That thereafter, sometime in March, 1891, said Oscar Vansyckle, without the consent or knowledge of the respondent, executed a mortgage upon said lands in the sum of $1,000 to the Lombard Investment Company, his wife, the defendant Elizabeth F. Vansyckle, joining with him in such mortgage. That he received from said mortgagee the full sum of $1,000, which he applied to his exclusive use, and concealed and withheld from the respondent the fact of the execution of such mortgage. That thereafter, in October, 1892, the defendants Vansyckle, without the consent of the respondent, executed a quitclaim deed to appellant George J. Gardiner, conveying said premises to him subject to the mortgage aforesaid. That thereupon said Gardiner and appellant Cora Gardiner, his wife, went into possession thereof, and thereafter, and until the commencement of this action, continued in possession. It is conceded by the appellants, and the proof upon the question is abundant to show, that, at the time appellant George J. Gardiner took the quitclaim deed last mentioned from Vansyckle, he knew of all the facts and circumstances connected with and

surrounding the execution of the deed upon the part of respondent to said Vansyckle, and that for some time before receiving Vansyckle's quitclaim to the premises he was advised and familiar with all of said facts and circumstances; that he is the son-in-law of Vansyckle; that he paid no consideration whatever for said quitclaim deed.

These are substantially the facts that were established upon the trial below, and which are embraced in the record brought to this court. In their separate answer the appellants Gardiner set up two affirmative defenses to the plaintiff's cause of action, in the first of which it is asserted that the agreement made between the respondent and the defendant Oscar Vansyckle, by which said Vansyckle was to hold the premises in trust for the respondent, was a verbal agreement; that no memorandum of said agreement was made in writing at the time said deed was executed, or prior or subsequent thereto; and that the same falls within the statute of frauds. And the remaining defense is that said deed from respondent to Vansyckle was made voluntarily by the respondent, for the purpose of placing said premises beyond the reach of the creditors of the respondent, and especially for the purpose of defeating the collection of any claim or judgment that the said Conrad might have or secure against the respondent. There was a trial to the court, and a judgment rendered in favor of plaintiff, canceling the deeds from respondent to Vansyckle, and from Vansyckle to Gardiner, and awarding possession of the premises to the respondent; and a personal judgment against the defendant Vansyckle for the sum of $1,000, the amount realized by him as a result of the mortgage to the Lombard Investment Company.

We will consider these defenses in the order in which they were interposed; and first, then, as to the agreement between respondent and defendant Vansyckle being within the statute of frauds. The respondent contends not for the enforcement of the trust made in parol between himself and Vansyckle, but insists that the transaction raises a trust ex maleficio, which is not within the statute. In 2 Pom. Eq. Jur. § 1053, it is said: "In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one's weakness or necessities, or through any other similar means, or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same; # * * and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and

without notice acquires a higher right, and takes the property relieved from the trust." We think that the transaction falls squarely within the purview of this authority, and that the rule laid down by Pomeroy has been generally adopted, and received the sanction of the courts without exception. Brison v. Brison, 75 Cal. 525, 17 Pac. 689; 1 Story, Eq. Jur. § 187. The parol promise upon the part of Vansyckle, and upon which the plaintiff relied, was made in bad faith, and with intent to deceive, and hence amounted to an actual fraud. It was made by him without any intention of performing it; and the construction which the statute of frauds has almost universally received is that it excepts from its operation trusts which arise from fraud, either actual or constructive. This we conceive to be the principle upon which the rule laid down by Pomeroy, Story, and the other writers on the subject rests.

As to the second defense set up, viz. that the conveyance by respondent to Vansyckle was a voluntary one, and was made for the purpose of defrauding respondent's creditors, and particularly one Conrad, it does not ap

ar from the evidence that respondent was indebted to any person whatever, or that Conrad had any legal or equitable claim against him. But it is insisted by appellants that the obvious intention of respondent was to place his property where Conrad, should he become a judgment creditor, could not reach it, and this must be conceded. And it is further insisted by appellants that the respondent and Vansyckle are in pari delicto, and that equity will afford no relief under such circumstances. We think it may be conceded that the rule is well settled, especially as to executed contracts, that if the parties be in pari delicto they will be left where they have placed themselves; they do not come into court with clean hands. If, however, one party is but an instrument in the hands of another, then they cannot be said to be in pari delicto. Harper v. Harper, 85 Ky. 160, 3 S. W. 5; Poston v. Balch, 69 Mo. 115; Davidson v. Carter, 55 Iowa, 117, 7 N. W. 466. On this subject the court of appeals of Kentucky, in Harper v. Harper, 85 Ky. 166, 3 S. W. 5, says: "If the mind of one of the participants in the transaction exercises an undue influence over that of the other, whether by imposition or threats upon the one side and confidence or weakness upon the other, equity will grant relief to the latter. Even if the party had sufficient capacity to contract, yet if, through trusting confidence, the other has led him into the illegal act, and then imposed upon him, such relief will not be refused." In Story's Equity Jurisprudence (volume 1, § 300) the learned author says: "And indeed, in cases where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be, and often are, very different degrees in their guilt. One party may act under cir