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fers to the plans and specifications, and states er for the judge to certify the statement without their substance, is sufficient, though they are notice to respondent, after 30 days from the not attached to the notice.

service of the notice to him of the filing thereof.

2. Under Laws 1893, p. 12.5. providing that Appeal from superior court, Whitman coun

a new appeal bond may be filed within five days ty; E. H. Sullivan, Judge.

after the judge certifies that the sureties in the Action by Henry Mras against R. H. Duff original bond are not qualified, a new appeal and Luella Duff for the foreclosure of a

bond is valid, where appellant, after respondent

excepted to the sureties in the original bond, obmechanic's lien, based on a contract for the

tained leave io file a new bond without an examconstruction of an hotel by plaintiff for de- ination of such sureties by the judge, and filed fendants. From a judgment for plaintiff,

it, as ordered, within five days from the time

fixed for the sureties to testify. defendants appeal. Affirmed.

3. In an action fi: piles furnished, and laJames W. Reid, for appellants. Chadwick

bor performed in driving them, defendant filed

a general denial, and afterwards an annended & Fullerton, for respondent.

answer setting up a counterclaim. The latter

was stricken out as not having been served on HOYT, C. J. The purported statement of plaintiff, and when the case was called for

trial defendant waived the filing of it. At that facts was stricken from the record upon the

time plaintiff asked leave to amend the comhearing; hence the only alleged error to plaint by striking out the allegation of material which we can give attention is the one which furnished, and thereupon defendant asked leave

to file said amended answer. Held, that it was attacks the sufficiency of the complaint.

not error to permit plaintiff to amend, and at Such complaint was filed for the purpose of

the same time to refuse to allow the answer to foreclosing a mechanic's liert; and it is claim- be filed. Hoyt, C. J., dissenting. ed on the part of appellants that it did not

4. Where the plaintiff, in an action for lastate a cause of action, for the reason that

bor performed in driving piles, testified posi

tively, from his own knowledge, as to the value the lien notice, a copy of which was therein of the services, it was immaterial what he reset out, was insuflicient. The only fault

ceived for services which it appeared, on crossfound with such lien notice is that, in stating

examination, that he rendered in driving piles

for other persons near where he drove those for the terms of the contract, it referred to cer- defendant. tain plans and specifications to be furnished 5. On trial of an action for labor performed by the claimant, which plans and specifica

in driving piles, where it was not shown that detions were not set out in the notice. If it

fendant requested the work to be done, but it

appeared that defendant erected a mill on the clearly appeared from the statement of the piles, it was proper to deny a nonsuit. terms of the contract that the plans and

6. In an action for labor, where defendant specifications were necessary to an under

claimed that plaintiff received lumber on the ac

count in suit, with which defendant was not standing thereof, and they were not attach

credited, but all the testimony was to the efed to the notice of lien, nor their substance fect that there was no agreement by plaintiff stated therein, the sufficiency of such notice

to apply the lumber in payment of said account,

a finding for plaintiff for the full amount sued might well be doubted. But such was not

for will not be disturbed. the fact; for, while there is a reference to

Appeal from superior court, Snohomish the plans and specifications, there is also a

county; John C. Denney, Judge. statement of their terms and conditions.

Action by J. J. Maney against J. F. Hart Such statement, though only by a brief de

to recover for labor performed and materials scription of such terms and conditions, is

furnished. Upon instruction of the court, sufficient, in the absence of proof that such

there was a verdict for plaintiff, and from a brief description is not such as to enable

judgment thereupon defendant appeals. Afthe contract to be fully understood. When

firmed. the statement is made that the plans and specifications are briefly described as fol

Andrews & Morris, for appellant. A. R. lows, and thereafter are given the terms and

Titlow, for respondent. conditions, it must be assumed, in the absence of proof to the contrary, that the sub

ANDERS, J. The respondent moves this stance of such plans and specifications is as

court to strike the statement of facts from therein stated. The notice of lien was suf

the record herein, to affirm the judgment ficient, and the complaint stated a cause of

of the lower court, and to render judgment action. The judgment will be affirmed.

against the appellant and his sureties upon the supersedeas bond filed in this cause, for

the reasons (1) that the said statement ap. SCOTT, ANDERS, DUNBAR, and GORDON, JJ., concur.

pears 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 noth(11 Wash. 67)

ing in the record showing that the respondMANEY V. HART.

ent or his attorneys were present when the (Supreme Court of Washington. Feb. 6, 1895.) statement of facts was settled by the court, APPEAL-STATEMENT OF Facts-FILING New Boyd or that he or they had any notice of the time - AMENDMENT OF PLEADINGS-Suit FOK SERV

when or place where application would be ICES-EVIDENCE AS TO VALUE-ACCEPTANCE,

made to the judge who tried the cause to 1. Where respondent failed to file and serve any amendments or objections to the state

settle and certify the statement of facts. It ment of facts as filed by appellant, it was prop- is true that the condition of the record, as to

the matters set forth in the motion, is as of, has never been paid, although payment therein stated. It is also true that there is thereof has been duly demanded. On Sep. nothing whatever in the record showing that tember 19, 1892, the defendant answered, deque respondent, within the time limited by nying each and every allegation of the comlaw, or at any time, filed and served on the plaint, and subsequently, and on December appellant any amendments or objections to 23, 1892, filed an amended answer, which, the statement as filed, and we must there- however, the court struck from the files, for fore presume, as the law presumes, that the the reason that it had not been served on the respondent agreed to the same. And, that plaintiff. After the jury was called, but bebeing so, there was nothing for the court to fore it was impaneled, the plaintiff asked "settle," and it was perfectly legitimate for leave to strike from the complaint those porthe judge to certify the statement, in the ab- tions thereof alleging that materials were sence of and without notice to the respond- furnished by plaintiff to defendant, and thus ent or his attorneys. Laws 1893, p. 115, $ 9. modify it so that it would state a cause of The motion must be denied.

action for labor performed merely. The deThe respondent further moves to dismiss fendant objected to the proposed alteration the appeal on the alleged ground that no ap- of the complaint, on the ground of surprise, peal bond was filed in this cause within five and that he was not prepared to meet such days after service of notice of appeal, as an issue. But the court allowed the plainrequired by law, and that no bond but a tiff to so change the complaint, and the desupersedeas bond was ever filed in this case. fendant saved an exception. Prior to this The notice of appeal seems to have been time, counsel for the defendant had stated served on the respondent's attorney on Oc- to the court that he did not desire to file tober 16, 1893. On the same day, appellant an amended answer, but he then asked leave filed with the clerk of the court below a to file the amended answer which the court bond which was in form and substance both had previously stricken from the files. The an appeal and stay bond. Three days there- plaintiff objected, on the ground that it set after he filed a second bond, similar to the up new matter, and thus tendered new isfirst, except as to sureties. Thus it will be sues. The court sustained the objection, and seen that two bonds, instead of one, con- the defendant excepted. Error is assigned ditioned as required by law, were filed with- upon each of these rulings of the court. in the time limited by the statute. The re- The point made is that the court abused its spondent, however, objected to the suffi- discretion both in permitting the plaintiff to ciency of the sureties on the bond, and the amend his complaint by striking out certain court, with the consent of counsel for the allegations thereof, and in refusing to permit respondent, ordered appellant to file a new the defendant to file his proposed amended bond, which he did on November 2, 1893. answer. If the modification of the complaint The fact that this latter bond was not filed had been such as to impose any additional within five days after service of the notice burden or labor upon the defendant in conof appeal can in no wise affect its validity, ducting his defense, or to so change the is. for the law plainly provides that a new bond sues as to require further time to prepare may be filed within five days after the judge for trial, there would be much force in apshall certify that the sureties in the original | pellant's contention. But, in our opinion, it bond are not qualified as required by law. did neither. If the defendant was ready to Laws 1893, p. 125. In this case an examina- go to trial, as he said he was, upon his denial tion of the sureties was not made by the that the plaintiff furnished material and perjudge, for the reason that appellant asked formed labor for him, as alleged in the comand obtained leave to file the new bond wiwe plaint, he certainly could not have been prejout such examination, and the judge ordered udiced by the fact that, at the trial, the him to do so within five days from the time plaintiff disclaimed the right to recover for fixed for the sureties to justify. The mo- materials, and changed his complaint accordtion to dismiss is also denied.

ingly. Moreover, it appears that the claim The original complaint in this action, for materials furnished was inserted in the which was filed July 21, 1892, alleged that complaint by mistake of counsel, as the plainduring the months of August and September, tiff himself testified that he never intended 1891, the plaintiff performed certain labor to make such a claim, for the reason that he and furnished certain materials for the de- did not furnish the material therein menfendant, and at his instance and request, tioned We think the court committed no for which the defendant promised and error in allowing the complaint to be thus agreed to pay the plaintiff what the same amended. were reasonably worth; that the material so Nor do we think the court, under the cirfurnished and labor performed consisted of cumstances, abused its discretion in refusing driving 126 piles, which were furnished and to permit the defendant to file an amended driven by plaintiff at and about the sawmill answer, at the trial, setting up a counterof the defendant; and that the reasonable claim against the plaintiff, after he had once value oi said piles and the driving thereof waived the filing of it. This same answer was $2.50 apiece, making in all the total sum was filed on December 23, 1892, but the plainof $315, which sum, or any part there- tiff had no notice of it until March 16, 1893

we

(the day of the trial), at which time the de- ant might have produced some competent fendant moved for judgment on the plead- and direct evidence to show it. ings. The motion for judgment was denied, The appellant also predicates error upon and, as have already intimated, the the refusal of the court to grant a nonsuit, or amended answer was stricken out on motion to direct the jury to return a verdict for the of plaintiff. It was simply treated as if it defendant, at the close of plaintiff's case. It had never been filed, for the reason that it is claimed that there was not sufficient eviwas filed without leave of the court, and dence to support a verdict for the plaintiff, without notice to the plaintiff. The applica- for the reason that it was neither shown that tion to amend at the time of the trial was the services for which compensation was detherefore properly treated as an original one, manded were rendered at the request of the and it was for the court to say, in the exer- defendant, nor that they were rendered with cise of a sound legal discretion, whether it his knowledge and accepted by him. That should be allowed or rejected. It was ap- the fruits of the plaintiff's labor were acparent to the court that the defendant disre- cepted by the defendant there can be no garded the law in filing the proposed amend- doubt, for the evidence unequivocally shows ed answer in the first instance, and no rea- that he erected a sawmill upon the very piles son was given for not making a proper ap- driven by the plaintiff. And although the plication to amend before the case was called plaintiff simply testified that one Davis, and for trial. If the amendment had been allow- not the defendant, requested him to do the ed, the result would probably have been work, we, nevertheless, think it would be go to delay the trial, and that is always a mat- ing 'too far to hold, under the facts in eviter to be considered by the court in deter- dence, that the plaintiff failed to prove a mining the rights of the parties. The gen- sufficient cause for the jury. If it was not eral rule is to allow amendments in further-proved affirmatively that Davis was the agent ance of justice, good cause therefor being of the defendant, it did appear that the de shown, and such is the rule prescribed by fendant ratified his acts by availing himself our statute (Code Proc. $ 221); but we per- of the labor obtained thereby. The motions ceive no sufficient reason in this instance for were properly denied. disturbing the decision of the court on the Lastly, it is insisted that the verdict is too ground of abuse of discretion.

large, because the proof shows that the plainIt appeared on cross-examination of plain- tiff's foreman received $82 worth of lumber tiff, at the trial, that he had driven piles for from the defendant on this account. But other persons besides the defendant, at or the purport of the testimony, as a whole, near the Snohomish river; and thereupon de- upon. this point, is to the effect that there fendant's counsel asked him what he received was no agreement on the part of the plaintiff for such labor, and under what circumstan- to apply the value of the lumber received by ces and conditions it was performed. The his foreman in part payment of the account questions were objected to by the plaintiff, in suit. Payment was not pleaded by deon the ground of immateriality, and the ob- fendant, and, of course, could not be proved, jection was sustained by the court. The under the issue raised by a general denial of witness, who had been for several years en- the allegations of the complaint. And all of gaged in the business of pile driving, had the evidence touching this question testified positively, from his own knowledge, brought out on cross-examination of plaintiff, as to the value of his services for defendant; and was therefore undisputed. What it and we think that what he charged or re- proved was a question for the jury to deterceived from others for driving piles, at other mine, and we are not disposed to question places, was wholly immaterial, especially in their finding. the absence of a showing, or a direct offer The judgment is affirmed. to show, that all of the conditions under which the labor was performed were sub

DUNBAR and SCOTT, JJ., concur. stantially similar to those under which the services were rendered for the defendant. HOYT, C. J. I dissent. I think the trial It was shown that the usual price paid for court abused the discretion vested in it when driving piles in that vicinity was from two it allowed the complaint to be amended, and to three dollars apiece, depending upon the at the same time refused to allow defendant character and condition of the ground, its

to file an amended answer. accessibility, and the difficulty encountered in placing and retaining the machinery in proper position. Several witnesses who as

(11 Wash. 79) sisted in doing the work for which the plain

ROZELL V. VANSYCKLE et al. tiff sought to recover testified that $2.50 was

(Supreme Court of Washington. Feb. 7, 1895.) a fair and reasonable price for driving each

ORAL AGREEMENT TO CONVEY STATUTE OF pile driven by the plaintiff, and the defend

FRAUDS -- FRAUDULENT CONVEYANCE ant did not attempt to dispute this testimony,

Right To Question. except indirectly, by way of cross-examina

1. Where a person, old and ignorant, under tion of plaintiff. If the price claimed was

representations by the grantee, in whom he had

implicit confidence, that it was the best course unreasonable, it would seem that the defend

to pursue to avoid liability on a false claim,

was

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conveys land, receiving an oral assurance from him, and for the purpose of protecting the
the grantee that he will reconvey on request, land in question therefrom he sought the ad-
the grantee having, however, no intention to
reconvey, the agreement to reconvey is not with-

vice of Vansyckle. It is set out in the comin the statute of frauds.

plaint, and fully established by the evidence, 2. One who induces an old and ignorant per- that the respondent had implicit confidence son, having implicit confidence in him, to convey to him laud, under the false representations

in Vansyckle, and relied upon him to advise that it is the best thing to do to avoid a pretend

him safely as to the best means of protected claim, and under a parol agreement to re- ing his property against what he apparently convey the land on request, cannot, in defense

considered the unauthorized and unjust claim to a suit to rescind the conveyance, claim that the deed was made in fraud of the grantor's

of Conrad. He seemed to think that he was creditors.

unequal to cope with Conrad, and there is Appeal from superior court, Yakima coun

evidence tending to show that he had therety; Carroll B. Graves, Judge.

tofore been the victim of a fraud practiced Action by Martin Rozell against Oscar

upon him by Conrad. But, however that Vansyckle, George J. Gardiner, Cora Gardi.

may be, the evidence is abundant to establish ner, and others. From a judgment for plain

the fact that his mind was filled with the betiff, defendants George J. Gardner and Cora

lief that Conrad was attempting to unjustly

establish a false claim which would be asGardner appeal. Affirmed.

serted against the land in question, and unJones & Newman, for appellants. John G. der such circumstances he sought the advice Boyle and Reavis & Milroy, for respondent, of Vansyckle, in whom, as has been said,

he appeared to have implicit confidence, and GORDON, J. Respondent brought this ac- upon whose counsel he unreservedly relied. tion in the superior court of Yakima county It further appears that, as a result of his conto secure the cancellation of two deeds to ference with Vansyckle, respondent executed real property described in the complaint, one l'a deed of the premises, and delivered the given by the respondent to the defendant same to said Vansyckle; that the respondent Oscar Vansyckle, and the other given by said was induced thereto by the assurances of the Oscar Vansyckle to the appellant George J. said Vansyckle that he would hold the premGardiner. The defendants Vansyckle and ises in trust for the plaintiff, and reconvey the appellants Gardiner, appearing separate- them to plaintiff upon his request. The testily in the court below, interposed demurrers, mony shows that prior to the making of the which were overruled, and thereafter filed deed Vansyckle assured him that he had had separate answers. Trial was had upon the experience in transactions of like character issues joined, and judgment rendered in fa- with other parties, and also encouraged the vor of plaintiff, from which judgment the respondent to make the deed, and by his conappellants Gardiner alone appealed.

duct and conversation added greatly to the The first assignment of error urged upon fears, apprehensions, and excitement under our attention is the ruling of the court upon which respondent then labored concerning the general demurrer to the complaint in the Conrad. No consideration was paid or action. The pleadings in the cause are very promised on the part of Vansyckle for this voluminous, and it is enough to say that the conveyance. That thereafter, sometime in character of the complaint is sufficiently dis- March, 1891, said Oscar Vansyckle, without closed in this opinion, and, for reasons here. the consent or knowledge of the respondent, after set out in disposing of the case upon the executed a mortgage upon said lands in the evidence, we think that the demurrer was sum of $1,000 to the Lombard Investment properly overruled. The complaint alleges, Company, his wife, the defendant Elizabeth substantially, and we think the evidence F. Vandyckle, joining with him in such mortabundantly shows, that in May, 1890, the re- gage. That he received from said mortgagee spondent was the owner of 80 acres of valu- the full sum of $1,000, which he applied to able land in Yakima county. He was then his exclusive use, and concealed and withheld an old man, very ignorant, could neither from the respondent the fact of the execuread nor. write, was mentally weak, and, as tion of such mortgage. That thereafter, in shown by the testimony of his immediate October, 1892, the defendants Vansyckle, neighbors and persons who had been inti- without the consent of the respondent, exemately acquainted with him for years, was cuted a quitclaim deed to appellant George J. incompetent to attend to ordinary business, Gardiner, conveying said premises to him and wholly incapable of managing or trans- subject to the mortgage aforesaid. That acting affairs of importance. That he had thereupon said Gardiner and appellant Cora theretofore had dealings with one J. H. Con- Gardiner, his wife, went into possession rad, resulting disastrously to him in a finan- thereof, and thereafter, and until the comcial sense. That he was easily alarmed, and mencement of this action, continued in poswas easily imposed upon, and that the de- session, It is conceded by the appellants, fendant Vansyckle was greatly his superior and the proof upon the question is abundant in mental sagacity. That at and immediate- to show, that, at the time appellant George ly prior to executing the deed to Vansyckle, J. Gardiner took the quitclaim deed last menin May, 1890, he feared that Conrad was tioned from Vansyckle, he knew of all the seeking to establish a false claim against facts and circumstances connected with and

surrounding the execution of the deed upon without notice acquires a higher right, and the part of respondent to said Vansyckle, takes the property relieved from the trust." and that for some time before receiving Van- We think that the transaction falls squarely syckle's quitclaim to the premises he was ad- within the purview of this authority, and vised and familiar with all of said facts and that the rule laid down by Pomeroy has been circumstances; that he is the son-in-law of generally adopted, and received the sanction Vansyckle; that he paid no consideration of the courts without exception. Brison v. whatever for said quitclaim deed.

Brison, 75 Cal. 525, 17 Pac. 689; 1 Story, Eq. These are substantially the facts that were Jur. '$ 187. The parol promise upon the part established upon the trial below, and which of Vansyckle, and upon which the plaintiff are embraced in the record brought to this relied, was made in bad faith, and with incourt. In their separate answer the appel- tent to deceive, and hence amounted to an lants Gardiner set up two affirmative de. actual fraud. It was made by him without fenses to the plaintiff's cause of action, in any intention of performing it; and the conthe first of which it is asserted that the agree- struction which the statute of frauds has alment made between the respondent and the most universally received is that it excepts defendant Oscar Vansyckle, by which said from its operation trusts which arise from Vansyckle was to hold the premises in trust fraud, either actual or constructive. This for the respondent, was a verbal agreement; we conceive to be the principle upon which that no memorandum of said agreement was the rule laid down by Pomeroy, Story, and made in writing at the time said deed was the other writers on the subject rests. executed, or prior or subsequent thereto; and As to the second defense set up, viz. that that the same falls within the statute of the conveyance by respondent to Vansyckle frauds. And the remaining defense is that was a voluntary one, and was made for the said deed from respondent to Vansyckle was purpose of defrauding respondent's creditors, made voluntarily by the respondent, for the and particularly one Conrad, it does not appurpose of placing said premises beyond the par from the evidence that respondent was reach of the creditors of the respondent, and indebted to any person whatever, or that especially for the purpose of defeating the Conrad had any legal or equitable claim collection of any claim or judgment that the against him. But it is insisted by appellants said Conrad night have or secure against the that the obvious intention of respondent was respondent. There was a trial to the court, to place his property where Conrad, should and a judgment rendered in favor of plain- he become a judgment creditor, could not tiff, canceling the deeds from respondent to reach it, and this must be conceded. And it Vansyckle, and from Vansyckle to Gardiner, is further insisted by appellants that the reand awarding possession of the premises to spondent and Vansyckle are in pari delicto, the respondent; and a personal judgment and that equity will afford no relief under against the defendant Vansyckle for the sum such circumstances. We think it may be of $1,000, the amount realized by him as a conceded that the rule is well settled, esperesult of the mortgage to the Lombard In- cially as to executed contracts, that if the vestment Company.

parties be in pari delicto they will be left We will consider these defenses in the or- where they have placed themselves; they do der in which they were interposed; and not come into court with clean hands. If, first, then, as to the agreement between re- however, one party is but an instrument in spondent and defendant Vansyckle being the hands of another, then they cannot be within the statute of frauds. The respond- said to be in pari delicto. Harper v. Harper, ent contends not for the enforcement of the 85 Ky. 160, 3 S. W. 5; Poston v. Balch, 69 trust made in parol between himself and Van- Mo. 115; Davidson v. Carter, 55 Iowa, 117, syckle, but insists that the transaction raises 7 N. W. 466. On this subject the court of a trust ex maleficio, which is not within the appeals of Kentucky, in Harper v. Harper, statute. In 2 Pom. Eq. Jur. § 1053, it is said: 85 Ky. 166, 3 S. W. 5, says: "If the mind of "In general, whenever the legal title to prop- one of the participants in the transaction exerty, real or personal, has been obtained ercises an undue intluence over that of the through actual fraud, misrepresentations, con- other, whether by imposition or threats upcealments, or through undue influence, duress, on the one side and confidence or weakness taking advantage of one's weakness or neces- upon the other, equity will grant relief to the sities, or through any other similar means, latter. Even if the party had sufficient caor under any other similar circumstances pacity to contract, yet if, through trusting which render it unconscientious for the hold- confidence, the other has led him into the iler of the legal title to retain and enjoy the legal act, and then imposed upon him, such beneficial interest, equity impresses a relief will not be refused." In Story's Eq. structive trust on the property thus acquired | uity Jurisprudence (volume 1, $ 300) the in favor of the one who is truly and equita- learned author says: "And indeed, in cases bly entitled to the same;

and a court where both parties are in delicto, concurring of equity has jurisdiction to reach the prop- in an illegal act, it does not always follow erty either in the hands of the original wrong- that they stand in pari delicto; for there may doer, or in the hands of any subsequent hold- be, and often are, very different degrees in er, until a purchaser of it in good faith and their guilt. One party may act under cir

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