of said firm, so as to enable him to determine how much of the debts of the late firm they have paid off, if any, and also to enable plaintiff to determine how much and what part of bills receivable they have collected, if any; that defendants deny plaintiff's ownership of one-third undivided interest in the buildings aforesaid mentioned, or any part thereof, and wholly refuse to pay plaintiff any rent therefor, or to agree to any sale or division thereof, or the proceeds thereof. Wherefore plaintiff prays judgment: (1) That his right to a one-third undivided interest in and to the buildings aforesaid, and the possessory rights of plaintiff and defendants in said buildings, and the grounds upon which they stand, may be established, and for a sale and partition thereof, or the proceeds thereof, between the parties thereto.

(2) For the sum of $100 rents due for use and occupation of said buildings, or $10 per month since the dissolution of said firm. (3) For the sum of $175, due as aforesaid, for a lien on any goods, wares, and merchandise of said late firm now remaining. (4) For judgment for one-third of any sum found due plaintiff, or any accounting of collections made by defendants of bills receivable due said late firm. (5) For judgment for an accounting, between the parties hereto, of all matters in controversy. (6) For a decree of this court enforcing plaintiff's and creditors' rights, if any, to the goods, wares, and merchandise, and bills receivable, or to the proceeds thereof, in de fendants' hands, or for judgment for any amount due plaintiff. For such other, further, and general relief as may be according to equity and good conscience or according to law."

The following is a copy of the demurrer filed: "First. He seeks to partition certain premises described in said complaint between the plaintiff and the defendants, upon the ground the said real estate is copartnership property, when it is alleged in said complaint that said copartnership was dissolved, and that an accounting had been taken between the plaintiff and defendants, and it is alleged in said complaint that a copartnership no longer exists, nor is there grounds upon which an accounting can be had between the plaintiff and defendants. Secondly. The plaintiff seeks by his complaint to recover the sum of $175 upon an express promise by the defendants in their individual capacity. Thirdly. The plaintiff seeks to recover the sum of $10 per month for rent from the date of dissolution of said copartnership, upon the express promise of defendants to pay said sum. Wherefore defendants allege that all of said causes have been improperly joined in the cause of action set out in the complaint of plaintiff."

In the solution of the question presented we get very little aid from the argument of counsel for the defendants. It is an elaborate and well-written presentation of their views and

conclusions, but not fortified by authorities in support of the judgment, except as sustaining the following proposition: "A complaint against two, which shows a liability partly joint and partly several, is fatally defective;" and several authorities are cited, which i have carefully examined, and I am at a loss to understand their application in this case. Section 70 of the Civil Code, cited and relied upon, is: "The plaintiff may unite several causes of action in the same complaint, when they all arise out of any one of the following named classes: provided, they affect all of the same parties, both plaintiff and defendant, and affect them in the same character and capacity; and provided, they do not require different places of trial, to wit." After enumerating many causes of action that may be joined, at the close of the last paragraph of the section it is said: "And in all cases it shall be necessary to state separately in the complaint the different causes for which the action was brought and in all cases equitable relief may be granted." By the first section of the Code, the distinction between actions at law and suits in equity is abolished, and only one form of action allowed, “which shall be the same at law and in equity." Contrary to the spirit and intention of the Civil Code, and the construction it has so often received in this and other states, the contention of defendants' counsel is that the suit should have been split up into suits at equity and actions at law, some of which should have been against both defendants jointly and some against them individually. The complaint is, perhaps, in some respects, rather inartificially drawn, but the demurrer is not so drawn as to reach the technical objections that appear upon the face. It clearly appears from the complaint that the plaintiff and defendants had been equal partners in some kind of mercantile business; that each had contributed a portion of the capital; that, for the purpose of carrying on the partnership business, the firm entered upon public lands of the United States, and erected buildings and made improvements of the value of $2,500; that on the 1st of August, 1891, the plaintiff withdrew from the firm; that an estimate was made of assets and liabilities of the firm, in addition to the buildings and improvements above mentioned; the stock of goods on hand was estimated at $4,305.84, bills receivable of the nominal value of $3,834.45; and that the debts of the firm amounted to $4.429.92; defendants were to continue in business, and, upon plaintiff's withdrawal, took the entire stock of goods and bills receivable; remained in the possession and occupation of the buildings; were to pay the entire indebtedness of the firm; to pay, from the sales or proceeds of goods, $175 to the plaintiff, and pay him onethird of all moneys collected from bills receivable, and $10 per month rent for his onethird of the buildings; that he had received from proceeds of bills receivable only $450, and nothing for rent. It does not appear that

any steps had been taken to secure a title from the government of the United States to the land upon which the buildings and improvements had been made; consequently there was no title of land only by possession or occupation. Hence the buildings and improvements were chattels as well as partnership assets.

I see no good reason why the complaint may not be regarded as sufficient, under the facts stated, and to be a bill for discovery, accounting, and the winding up of partnership affairs. That all matters pertaining to the settlement of partnership affairs are peculiarly and specially cognizable in a court of equity is too well established to need authorities in its support. The jurisdiction is exclusive in such affairs. Pom. Eq. Jur. § 1421. The withdrawal of a partner from a firm is not necessarily a full legal dissolution, and was not such in this case as to relieve the defendants from the mutual agency existing by reason of the copartnership. They remained the agents or trustees to settle the partnership affairs, and account to the plaintiff, in conformity with their agreement. Failing to do so, plaintiff is entitled to an accounting and a full settlement of partnership affairs. Ketchum v. Durkee, Hoff. Ch. 538; Robb v. Stevens, Clarke, Ch. 191; Kinsler v. McCants, 4 Rich. Law, 46. Court and counsel appear to have misapprehended the seventh paragraph of the complaint, in regarding it as an allegation of a statement and an account stated. The language is "that at an attempt at an accounting, made at the time of the dissolution, it was estimated," etc. The language used is perhaps unfortunate, but it is clear from it, as well as the balance of the complaint, that there was, and could have been, no final settlement. The amount to be received by the plaintiff depended upon too many contingencies, notably the amount that might be collected from bills receivable. Had there been, as supposed, a settlement in full, and a purchase of plaintiff's interest by the defendants, so that the action should have been at law instead of equity, the amount must have been definitely fixed, payable absolutely, and not dependent upon the outcome of partnership assets. In the prayer for relief it is asked that the court decree a partition of the buildings and possessory rights to the land, or that there be a sale of the same, and the proceeds divided. The latter course should be pursued-First, from the fact, as shown, that the title to the land is only possessory, while the fee is in the government of the United States; second, although such interests are chattels real, having been bought or constructed with partnership money for the business of the firm, they can, legally, only be regarded as any other chattel interests pertaining to the partnership.-as business assets of the firm. Hence partition would not be correct or practicable. But such misapprehension on the part of counsel in regard to the real character of such property can

not prejudice the case. Occurring in the prayer, it cannot be reached by the demurrer; the well-settled rule being that, if the material allegations of the complaint are sufficient to confer jurisdiction, the special prayer may be disregarded, and such relief granted as is proper under the facts shown. We conclude that the court erred in sustaining the demurrer and dismissing the suit. The judgment will be reversed, and cause remanded for further proceedings in accordance with the views here expressed. Reversed.

(11 Wash. 134)

BENN v. CHEHALIS COUNTY et al. (Supreme Court of Washington. Feb. 8, 1895.) ILLEGAL TAXATION-REMEDY BY INJUNCTION.

The statute providing a remedy against excessive taxes by objections to the rendition of a judgment therefor is not exclusive, and a taxpayer on whose property an excessive assessment has been made may invoke the aid of equity to compel the tax officers to receive the sum legally due, and to restrain the collection of any further sum.

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by Samuel Benn against the county of Chehalis and others to restrain the collection of taxes. Judgment for plaintiff on the pleadings, and defendants appeal. Affirmed.

Geo. D. Schofield, for appellants. Austin E. Griffiths, for respondent.

HOYT, C. J. It was alleged in the complaint in this action that the plaintiff was the owner of several hundred lots or parcels of land situated in Chehalis county; that the same had been listed on the tax rolls of said county for the year 1893, and had been valued by the assessor without his having viewed the same as required by the statute; that the valuation placed upon each of said pieces of property was double the actual value thereof at the time to which such valuation related; that, by reason of such illegal valuation, taxes had been assessed against the property aggregating the sum of $2,827.80, and that if the same had been assessed at its actual cash value the aggregate of taxes thereon would have been only $1,447.52. In addition to these and other facts tending to show the illegality of the assessment and levy, there were the usual allegations of tender of the amount rightfully due to the treasurer, and of a refusal by him to accept less than the amount shown by the tax roll. The prayer of the complaint was that the defendant the county treasurer should be required to receive the said amount of $1,447.52 in full payment for all taxes for said year, upon the property described, and that he and the other defendants should be restrained from proceeding to collect the taxes in accordance with the warrant attached to the tax roll. To this complaint a demurrer was interposed on the part of all the defendants, which was overruled by the court. The

defendants elected to stand upon their demurrer, and refused to answer. Whereupon judgment was entered for plaintiff in accordance with the prayer of his complaint. It is evident from what we have said that the facts stated in the complaint made it clear that there had been no such assessment of the property in question for taxation as the statute required, and that the levy of the taxes thereon shown by the tax roll was illegal. That such would be the result of an assessment and levy made in the manner set out in the complaint is not denied by the appellants. They substantially admit that, if the facts alleged in the complaint were made to appear by way of objections to the rendition of a judgment against the property for the taxes levied thereon, it would be the duty of the court to reduce the taxes to the sum of $1,447.52, and interest thereon, and enter judgment for that amount, instead of for the amount assessed against the property. They, however, seek to have the judgment reversed upon the ground that the facts stated did not warrant the interposition of a court of equity. Their contention in that regard is that since the statute has provided a remedy for excessive taxation, by allowing objections on that account to be urged against a rendition of judgment for the taxes, such remedy is exclusive, and deprives a taxpayer of other remedies to which he would have been entitled but for such provision of the statute. We are unable to agree with this contention. The result of its being sustained by the courts would be to leave the property of a taxpayer for two years subject to an apparent lien for taxes which, by reason of the illegality of the assessment, did not in fact constitute a lien. From the time the taxes are spread upon the tax roll until paid or set aside by a decree of court, they are a substantial cloud upon the title to the property. Hence to compel a taxpayer to deal with his property subject to such cloud for two years, when by going into a court of equity the same substantial justice can be done as upon objections to the rendition of judgment for such taxes, is to impose a hardship which courts of equity are specially constituted to prevent. Upon the conceded facts as to the assessment and taxation in question, it would be the duty of the court, when the county, at the end of two years, asked for judgment for the taxes in question, upon objections by the owner of the property, to reduce the amount thereof, and provide for the collection only of such remainder as, under all the circumstances, should seem just. The result to the county would be the same as though its proper officers were now required to receive such sum as would be just, and be thereafter prohibited from collecting the remainder; and, since that was the object sought by the plaintiff in this action, the granting of the prayer of his complaint, upon the confession of the

facts stated therein, was within the jurisdiction of a court of equity. Some objections to the complaint for want of proper parties have been urged here, but, as they were not made in the lower court, they furnish no reasons for reversal. The judgment will be affirmed.

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

(11 Wash. 212) WASHINGTON CENT. IMP. CO. v. NEWLANDS.

(Supreme Court of Washington. Feb. 16, 1895.)

VENDOR AND PURCHASER-ACTION FOR PRICEFALSE REPRESENTATIONS.

It is no defense to an action on notes given under a contract to purchase land that defendant was induced to execute the contract by the false representations of plaintiff that he was then making costly improvements on land adjacent to that covered by the contract.

Appeal from superior court, King county; T. J. Humes, Judge.

Action by the Washington Central Improvement Company against George Newlands on a contract for the purchase of land, and on notes given for the purchase price. A demurrer to the answer was sustained, and defendant appeals. Affirmed.

Bausman, Kelleher & Emory, for appellant. Clise & King, for respondent.

DUNBAR, J. The respondent brought suit against the appellant on a contract for the purchase by him of certain lots, and upon his notes given for the purchase price. Newlands, the appellant, admitted the making of the notes on the contract, and set up an affirmative defense, alleging deceit and false representations. The essential allegations of the affirmative defense were as follows: "The note and contract hereinabove described were obtained of this defendant by plaintiff by grossly reckless, erroneous, willful, and fraudulent representations on plaintiff's part, in this: that the time when defendant was induced to contract for the purchase of the lots above described, and sign the note, plaintiff represented to him, with the intent so to induce him, that plaintiff and others were building, and were causing to be built, on lots within sixty feet of those which defendant was to buy, a substantial brick hotel, to cost not less than $9,000; that this hotel was to be finished forthwith; that complete contracts had been made for its erection; and that the work was already under way. That, relying upon these representations, defendant entered into the contract, and signed the note above described, but neither plaintiff nor others were building, or causing to be built, on lots within sixty feet of those purchased by defendant, or at all, a substantial brick hotel, of any cost what

ever, nor have they done so since, nor were there then, nor have there since been, any contracts, complete or at all, for the erection, nor was the work under way, nor has it since been begun or put under way, nor was any such structure or any at all to be finished forthwith at that time or since, but the representations made by plaintiff and all plaintiff's statements as above set forth were false, reckless, and erroneous." Then follow allegations of loss by reason of the fact that these representations were untrue. A demurrer was interposed to this affirmative defense, which was sustained by the court. The appellant, relying upon his answer, refused to plead further. Judgment was entered, and the cause brought here on appeal.

We think there was no error committed by the court in sustaining the demurrer to the answer in this case. The allegations of misrepresentations go beyond the land or the amount or character of the land sold, and relate to improvements which it is alleged were to have been made on some adjacent lands. The allegations of the answer, so far as fraud is concerned, are not strengthened by the expression "by grossly reckless, erroneous, willful, and fraudulent representations," etc. These are mere conclusions, and the fraud must be shown by specific acts which, as a matter of law, would constitute fraud. Conceding that these representations were false, and conceding that the purchaser relied upon them, there is not yet enough shown, it seems to us, in this answer, to give the defendant relief. There is no fiduciary relation between the seller and the buyer alleged. It is not alleged that the buyer was in such a position that he was unable to make an investigation concerning the truth or falsity of these alleged representations.

So far as the allegations of the complaint are concerned, there is nothing to show that the land was not at hand when this contract was made, and that it could not, by the use of ordinary prudence, have been investigated by the purchaser; and in cases of this kind it seems to us that parties must exercise ordinary business sense and the faculties which are given to them for the purpose of transacting business, and that they cannot call upon the law to stand in loco parentis to them in the ordinary transactions of business and their ordinary dealings with their fellow men. One of the allegations of this answer is that plaintiff represented to defendant that this building was already in process of erection; that the work was already under way. The ascertainment of this fact was easy, and there is no circumstance alleged to show that there was any scheme worked upon this purchaser to prevent him from making this examination, or anything of that kind. The other fact alleged to have been represented, that a contract had been let for the completion of this hotel, was also easily ascertainable. If people, having eyes, refuse to open them and

look, and, having understanding, refuse to exercise it, they must not complain, when they accept and act upon the representations of other people, if their venture does not prove successful. Written contracts would become too unstable if courts were to annul them on representations of this kind. We think the proper and sensible rule was laid down by the United States supreme court in Slaughter's Adm'r v. Gerson, 13 Wall. 379, where it was held that the misrepresentation which would vitiate a contract of sale, and prevent a court of equity from aiding its enforcement, must relate to a material matter constituting an inducement to the contract, and respecting which the complaining party did not possess at hand the means of knowledge. It was there held that it was not sufficient that it was a misrepresentation upon which he relied to his injury, but that he must have some excuse other than negligence for relying upon it; that where the means of information are at hand, and equally open to both parties, and no concealment is made or attempted, the misrepresentation furnishes no ground for a court of equity to refuse to enforce the contract of the parties; that the neglect of the purchaser to avail himself in all such cases of the means of information, whether attributable to his indolence or credulity, takes from him all just claim for relief. Under the rule there established, and which we are inclined to follow, the demurrer to the answer in this case was rightfully sustained. The judg ment will therefore be affirmed.

HOYT, C. J., and SCOTT, ANDERS, and GORDON, JJ., concur.

(11 Wash. 203) LA FRANCE FIRE-ENGINE CO. v. TOWN OF MT. VERNON.

(Supreme Court of Washington. Feb. 14, 1895.)

CLAIM AGAINST TOWN-ALLOWANCE.

1. Where, on a former appeal of an action against a town for the price of a fire engine, it was decided that the complaint stated a cause of action on the original contract of sale, the question whether the town had authority to execute the notes held by plaintiff, for the balance of the price, is immaterial.

2. The execution by a town of its note for the price of a fire engine is a sufficient allowance of the claim therefor.

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by the La France Fire-Engine Company against the town of Mt. Vernon for the price of an engine sold to defendant. Judgment for plaintiff, and defendant appeals. Affirmed.

For prior reports, see 37 Pac. 287, and 38 Pac. 80.

J. Henry Smith, for appellant. Million & Houser, for respondent.