"To have charged that the larceny was committed by stealing ten dollars, of the value of ten dollars, would have been tautology." And the information in that case was based upon a statute quite similar to our own. See, also, Gady v. State (Ala.) 3 South. 429, and State v. Anderson, 25 Minn. 66. The objections to the information should have been overruled.

Counsel for the appellant criticises the action of the court in permitting the defendant to raise the question of the sufficiency of the information by a motion to exclude testimony instead of by demurrer. We see no warrant in the statute for such a practice, but, if it is allowable at all, the defendant should first ask leave to withdraw his plea of not guilty. The statute prescribes the mode of procedure in criminal cases, as well as civil, and provides that the information may be attacked by motion to set it aside, by demurrer, or by motion in arrest of judgment. No provision is made for a demurrer, or for any motion in the nature of ■ demurrer, pending the plea of not guilty, save the motion in arrest of judgment. The statute seems to imply that motions to quash and demurrers should be interposed prior to the joinder of issue of fact by plea. Code Proc. 1274. But, even conceding that the objection that the information does not charge an offense may be taken advantage of during the trial, still it would seem to be the better practice not to entertain such objection until the plea is withdrawn. In civil cases the statute provides that the objection that the complaint does not state a cause of action may be interposed at any stage of the proceedings; but, as we have before said, we find no such provision in the Criminal Code, and it may be questionable whether such an objection as that now under consideration should be considered by the court, especially in view of the statutory provision that "all the forms of pleading in criminal actions heretofore existing are abolished; and hereafter the forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed herein." But it is not necessary at this time to definitely pass upon that question, and we refrain from doing so.

The judgment is reversed, and the cause remanded for further proceedings.

HOYT, C. J., and SCOTT and DUNBAR, JJ., concur.

(11 Wash. 141)

COCHRANE v. GUNDERSON et al. (Supreme Court of Washington. Feb. 8, 1895.) DISMISSAL OF APPEAL-FAILURE TO FILE Record.

Where appellant fails to file a certified bill of exceptions or a statement of facts, as required by Laws 1893, c. 61, § 14, to be filed within four months after the appeal is taken, and no excuse for such failure is shown, the ap peal will be dismissed.

Appeal from superior court, King county; J. W. Langley, Judge.

Action by William Cochrane against Gust Gunderson and another. Judgment for defendants, and plaintiff appeals. Appeal dismissed.

James Hamilton, Lewis & Stratton, and Lewis & Gilman, for appellants. Williamson & Franklin, for respondents.

DUNBAR, J. The judgment in this case was rendered December 23, 1893, in the superior court of King county, and filed December 28, 1893. The amended notice of appeal was served February 14, 1894. The respondents move to dismiss this appeal, for affirmance of judgment, and for costs and damages, for the reasons that the same has not been taken according to law, and that the appeal was taken for delay only.

Section 14 of chapter 61 of the Laws of 1893 provides that, within four months after an appeal shall have been taken, the clerk of the superior court shall prepare and certify, and send up to this court, at the expense of appellant, a bill of exceptions or statement of facts, and a copy of so much of the record and files as the appellant shall deem material to a review of the matters embraced within the appeal. In this case the record fails to show that the appellant has ever complied, in any particular, with the requirements of this law. The original papers in this case were filed in this court in September last, by the respondents, in support of a motion to dismiss, instead of the record which the law required in such case. These papers were then returned by this court to the superior court, where they be longed. Afterwards, the respondents brought a short record here, upon which the motion now under consideration is based. The appellant introduces an affidavit of the clerk of the superior court in aid of his contention that the appeal should not be dismissed, but, even on the supposition that this affidavit could be considered by the court, it not having been served on the respondents or their counsel until the morning of the argument of the motion, and no showing having been made why it was not sooner served, it does not disclose any excuse whatever for the lack of diligence on the part of the appellant in prosecuting his appeal; nor is there an intimation in said affidavit that the appellant, within the time prescribed by law, or even up to the present time, has ever authorized the sending of the transcript to this court, or paid for the same.

It is earnestly contended by the respond. ents that they should be awarded damages provided for by the statute in certain cases, but we are inclined to think that we would not be authorized, under the showing in this case, to grant any further damages than the interest on the judgment. For the failure to comply with the law in regard to prosecut. ing appeals, mentioned above, the motion to

dismiss will be sustained, and the judgment affirmed, with costs in favor of the respondents.

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

(11 Wash. 189)

DIAMOND v. TURNER et al. (Supreme Court of Washington. Feb. 14, 1895.)

COMMUNITY PROPERTY SALE UNDER JUDGMENT AGAINST HUSBAND'S FIRM-COLLATERAL ATTACK -DEED TO DECEASED PURCHASER-EFFECT.

1. A judgment for costs against a firm in an action to reform a lease of land to such firm may be enforced against the community land of a member of the firm and his wife, in the absence of a snowing that the firm's business was not for the benefit of the community, and that it has sufficient available property to satisfy the judgment.

2. Where a judgment against a firm is satisfied by sale of the community land of one of the partners and his wife, the title of the purchaser cannot be collaterally attacked on the ground that there was property of the firm out of which the judgment could have been satisfied.

3. The fact that a sheriff's deed made pursuant to an execution sale is executed to the purchaser after the latter's death does not render the title of those claiming under him void, though the deed itself is void.

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

Action by Lydia S. Diamond against Fidelia B. Turner and others to recover certain real estate. From a judgment for defendants, plaintiff appeals. Affirmed.

W. I. Agnew and Phil Skillman, for appellant. John R. Mitchell, for respondents.

HOYT, C. J. In the brief of appellant will be found the following statement of the material facts, in the light of which the rights of the parties must be determined: "The plaintiff, Lydia S. Diamond, and one of the defendants, J. C. McFadden, were married at Olympia, on the 9th day of December, 1882, and continued as husband and wife until June 6, 1888. The land in controversy was acquired on the 12th day of December, 1885, by the defendant J. C. McFadden. On the 6th day of June, 1888, by a decree of divorce, the marriage relations between Lydia S. Diamond and J. C. McFadden were terminated, but no division, separation, or disposition was made of their community real estate. On March 26, 1885, a judgment was recovered by one G. G. Turner against the said J. C. McFadden and one D. P. Ballard, which judgment was for the reformation of a lease of certain real property made and executed by D. P. Ballard and J. C. McFadden, as a partnership known as Ballard & McFadden, and the money judgment was for costs in such action. On March 6, 1886, an execution was issued upon the cost judgment in such action, and levy was made upon the property

in controversy, and upon such levy and proceedings had thereunder defendants' title is based. The sheriff's deed was issued to G. G. Turner after his death. The defendant Fidelia B. Turner claims title by virtue of a will conveying G. G. Turner's property to her." The facts thus stated are supplemented by others shown by the record, and referred to in the brief of the respondents, which are relied upon by them to sustain their title if it is necessary to invoke their aid. Upon such facts many questions have been elaborately argued, but the conclusion to which we have come as to the rights of the parties upon the facts stated in appellant's brief makes it unnecessary for us to say anything as to these questions. It will be seen by a reference to such statement, and the argument of appellant founded thereon, that the important question to be decided is as to whether or not the judgment under which the sale was made was of such a nature that it could be satisfied out of the community property of the defendant J. C. McFadden and his wife.

We held in the case of Improvement Co. v. Sagmeister, 4 Wash. 710, 30 Pac. 1058, that a liability incurred by a husband in the prosecution of any business the profits of which would belong to the community could be enforced against the community property, and that it would be presumed that any business in which the husband might be engaged was for the benefit of the community until the contrary was shown. It must follow that, if the husband alone had entered into the lease which was the foundation of the action in which the judgment in question was rendered, such judgment would have been enforceable against community property. The judgment would have been rendered upon a liability incurred in the prosecution of a business which would be presumed to have been conducted for the benefit of the community.

Does the fact that the business in furtherance of which the lease was made was to be prosecuted by the husband in connection with another in a partnership name SO change the rule as to make a liability incurred therein by the husband only enforceable against his separate property? We think not. The community, and not the husband alone, would have been benefited if the business of the partnership had resulted in gain. Hence its losses should fall upon the community, and not upon the husband alone. It is a well-settled rule that the property of the individual members of a partnership can be made available for the payment of its debts when there is not sufficient partnership property available for that purpose. It would seem to follow as a necessary consequence that process which would reach the property of the individual members would be of such a nature as to be enforceable against the community to the same extent as though the judgment upon which it was

Issued had been against such member for a liability incurred by him in the prosecution of a like business on his own account. The facts stated compel us to hold that the liability upon which the judgment in question was rendered was incurred in the prosecution of a community business, and that such judgment could be satisfied out of the community property. Such being the fact, but two reasons have been suggested why the sale under the execution did not vest a perfect title in the defendant Fidelia B. Turner, or those under whom she claims, as against the community and each of its members. One is that there was property belonging to the partnership out of which the execution could have been satisfied. That there was sufficient partnership property for that purpose does not clearly appear from the allegations or proofs, but, if there was, it would furnish no grounds for a collateral attack upon the proceedings which culminated in the sale. Such fact might have furnished sufficient reason for setting aside the sale in a direct proceeding for that purpose. But, after it had been confirmed, it was invulnerable to collateral attack on account of facts not appearing in the record, unless a want of jurisdiction was thereby shown. The other is that the deed executed in pursuance of the sale was void, for the reason that it was executed in the name of a dead man. It is no doubt true that a deed so executed could have no force whatever, but it does not follow that no title was acquired by the purchaser at the execution sale. The certificate of purchase and confirmation of sale were alone essential to pass the substantial title of the defendant in the execution to the purchaser at the sale. The execution of the deed after the time for redemption had expired was a purely ministerial act on the part of the officer, and could have been compelled by the purchaser, or those claiming under him, at any time in a proper proceeding for that purpose. Until the sale had been set aside, a certificate of purchase would be as fully protected as though the legal title had been conveyed by deed made in pursuance of the statute. The judgment

will be affirmed.

SCOTT and ANDERS, JJ., concur. DUNBAR, J., concurs in the result.

(11 Wash. 143)

GLOVER v. ROCHESTER GERMAN INS. CO.

(Supreme Court of Washington. Feb. 12, 1895.)

ASSIGNMENT BY CORPORATE PRESIDENT-VALIDITY -INSURANCE-APPRAISEMENT OF LOSS - FRAUD OF APPRAISER-INTEREST FROM DATE OF Loss. · 1. An assignment of an insurance policy by a corporation, by its president and general manager, who, with one other, who advised and ratified the assignment, owned all the corporate stock, is valid.

2. In an action to set aside an award of

loss, there was evidence that the appraiser se lected by the insurance companies exercised a continuous influence over the other appraiser and the umpire, and that he stated that he was working for the companies, and proposed to look after their interests; that every time the insured's manager interfered it would cost the insured something; and that he (the appraiser) was well paid by the companies, and they could well afford to do it. It further appeared that the award was grossly inadequate; that before arranging for arbitration, and pending negotiations as to the loss, the company was taking steps to obtain an appraiser without the insured's knowledge; that the appraiser obtained was accepted by the insured because he was highly recommended by the company; that the insured's largest stockholder, who had principal charge of its business, was not aware of the appraiser's misconduct; and that just before the award was signed the insured announced that it would not be bound by it, and repudiated it immediately when made. Held that, the objection to the appraisement having been made in due time, it should be set aside.

3. In an action on a fire insurance policy, where the amount of the loss cannot be exactly ascertained, the finding of the court in regard thereto will not be disturbed, if there is some evidence to support it.

4. By agreeing to arbitrate, the company waives the provision in the policy that, in case of dispute as to the amount of the loss, payment shall be made 60 days after proofs of loss are submitted, so as to entitle the insured to interest on the amount of his loss, in case the arbitrators' award is set aside, from the date of the loss.

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by J. N. Glover against the Rochester German Insurance Company to set aside an award and recover on an insurance policy. Judgment in part for plaintiff, and both parties appeal. Affirmed.

Turner, Graves & McKinstry and Van Ness & Redman, for plaintiff. Nash & Nash, for defendant.

SCOTT, J. This was an action upon an insurance policy to recover for a loss by fire. A number of other cases are by stipulation made dependent upon this one. The Spokane Mercantile Company was a corporation engaged in business at the city of Spokane, in this state, and had taken out insurance policies upon its stock of merchandise, in various companies, to the amount of $52,000. On the 9th day of January, 1893, said stock was greatly damaged and partly destroyed by fire. The defendant company had issued one of said policies in the sum of $1,000. It is alleged in the complaint that the several claims were by said mercantile company assigned to the plaintiff. It is further alleged that the value of said stock of goods at the time of said fire was the sum of $73,254.77, and that the loss to said company by reason of said fire was the sum of $60,575; that said mercantile company and the defendant were unable to agree upon the amount of the loss sustained, and thereupon, and in pursuance of policy conditions, an agreement was entered into whereby the question of the sound value of said goods at the time of said fire, and the damage thereto

by reason thereof, was submitted to two appraisers and an umpire, one of which appraisers, A. A. Brann, was selected by the insured, the other Hyman Lippman, by the defendant, and the umpire, E. Dempsie, by the two appraisers; that the said arbitrators, in pursuance of said agreement, made an appraisement of said stock, and determined that the sound value thereof at the time of the fire was the sum of $50,319.84, and the damage thereto by reason of said fire was the sum of $24,560.45. The action was brought to set aside this award, and to recover judgment for the full amount named in said policy.

One of the grounds upon which such relief was sought is as follows: It is charged that the defendant represented to said Spokane Mercantile Company that the said Lippman was competent, fair, and disinterested; that he was unknown to the insured; that, relying upon said representation, it assented to his selection as such appraiser; that in fact said Lippman was neither competent, fair, nor disinterested; that he was biased and interested towards and on behalf of the defendant; that he had been previously employed by the defendant. to act as an appraiser in similar cases; that the defendant fraudulently concealed from said mercantile company the fact that said Lippman had been previously employed by the defendant in a similar capacity, and that he was biased in its behalf, and that the said award so rendered was unjust and unfair to the insured, and was procured by the defendant through fraud and collusion, and undue and improper means and influence; that, prior to the time said award was signed, the said insured repudiated said ap praisal, and rescinded said agreement of submission thereto. The answer denied that the value of the stock on hand at the time of the fire was any greater than the sum of $50,319.45; that the mercantile company repudiated the appraisal or rescinded the agreement of submission prior to the signing of the award, or at any time; and denied the assignment of the policy to the plaintiff, on information and belief; and pleaded, as an estoppel, full knowledge on the part of said mercantile company of the manner in which said appraisal was carried on, and of the conduct and actions of the appraisers in connection therewith, at the time. Certain other matters were alleged and denied which are not material to the controversy. The case was tried before the court, sitting without a jury; a decree was rendered in favor of the plaintiff, vacating the award, and adjudging the loss of plaintiff's assignor to have been $45,000; and judgment was entered against the defendant for its proportionate share thereof. Both parties appealed therefrom. The appeal of the insurance company will be first considered.

It is contended that the purported assignment of said claim to the plaintiff was in

valid, on the ground that it was never authorized or ratified by the board of directors. The assignment was made by Brockhausen, the president and general manager of the mercantile company. It appeared that the stock of said corporation was all owned by said manager and one other person, and that said other stockholder advised and ratified the assignment. We think this was sufficient to constitute a valid assignment of the claim to the plaintiff.

It is next contended that, upon the merits, the award should be sustained, and the consideration of this question involves several features of the case. First, as to the disqualification of Lippman to act as an appraiser upon the ground of bias. The policy provided in this respect that the appraisers should be competent and disinterested, and, to satisfy this requirement, they should have been indifferent between the parties and impartial judges. It does not appear that Lippman had been previously employed to act as an appraiser by the defendant company, although he had acted in that capacity on two occasions for other companies. We do not attach any importance to this, and it does not appear that the lower court did. Said court, however, found as a fact that Lippman was biased and prejudiced in favor of the defendant. There was testimony to show that Lippman exercised a continual controlling influence over the other appraiser and the umpire, and substantially had matters his own way. It also appears that at various times during the making of such appraisement Lippman made statements to the effect that he was working for the insurance companies, and that it was their stock; that they were buying the stock; that he had several altercations with Brockhausen, cursed him, and ordered him out of the store, and that he said "every time Brockhausen interferes it will cost the Spokane Mercantile Company something"; that he was there to look after the interests of the insurance companies, and he proposed to do it; that he was well paid by the insurance companies to look after their interests; that they could well afford to pay him good wages, for he was of great benefit to them, and they well knew it. There was testimony to show that Lippman was very domineering throughout the entire proceeding; that he seemed to understand that he was there especially in the interests of the insurance companies, for the purpose of getting the award made at as low a figure as possible; and said that he was acting for the insurance companies, and that Mr. Brann was there to represent the mercantile company. We think the statements and conduct of Lippman were such, taken in connection with the fact that the award was such a grossly inadequate one,-which we shall further consider on the question of the amount of damages,-as to justify the lower court in finding that Lippman was biased and prejudiced as charged.

And the next question is, was the right to have the award set aside upon that ground lost or waived by the mercantile company, in consequence of not making timely objection? Cases have been submitted by appellant nolding that partiality, interest, or relationship on the part of an arbitrator is no ground for setting aside an award, if the party complaining had knowledge of the facts when he agreed to submit the cause to arbitration, or in time to revoke the submission before the award was made. This rule is undoubtedly sound, and can be applied without difficulty where a single fact, like that of interest or relationship, is involved, as the discovery of that one fact prior to or during the progress of the proceedings would afford complete and unmistakable knowledge to the party. There is more difficulty, however, when considered with reference to the partiality or prejudice of an arbitrator, which was not known at the time of the submission; for sufficient notice of this might not be given by any single act or expression of the arbitrator, and might only appear from numerous acts or his entire conduct in the matter, and it might be difficult to say just at what particular time the complaining party had obtained sufficient knowledge of such partiality or prejudice when, if he did not object, he should be held to be estopped from thereafter raising the question. It appears by the undisputed testimony in the case that Lippman was entirely unknown to the officers and agents of the mercantile company at the time he was agreed upon as an arbitrator. It further appears that he was highly recommended to them as a qualified, fair, and disinterested person by the agents of the insurance companies, and, relying upon these representations, the mercantile company accepted him as an arbitrator. Before arranging for the arbitration, it appears that the officers of the mercantile company were asked by the agents of the insurance companies, who were upon the ground, if they could not agree upon the amount of the loss, and were answered that they probably could, as there should be no difficulty in arriving at it; and that it was agreed that the mercantile company should submit a statement of the amount claimed, and that the agents of the insurance companies would make out a statement of what they admitted the loss to be. In pursuance of this understanding, a detailed statement by the mercantile company was made out and submitted to the insurance companies. It further appears that Nash, who was the larger stockholder in the mercantile company, and was an attorney at law, had principal charge of the proceedings for the mercantile company, and that he was seldom present and took no active part in the appraisement; and it does not appear that he knew of all the statements and acts aforesaid of Lippman during the progress of the proceedings. It further appears that prior to and while the parties were negotiating with

regard to an agreement as to the amount of the loss, with a view to adjusting the same without an arbitration, the agents of the insurance companies were communicating by telegraph with other officers of said companies at San Francisco, whereby they were asking to have one of certain persons mentioned immediately sent to Spokane for the purpose of acting as an arbitrator. These telegrams, with two others in connection therewith, which were sent while the arbitrators were at work, are as follows:

"Feb. 7th, '93. Dated Spokane, Wash., 7. To Liverpool London & Globe Ins. Co., S.: Send Treanor or Godfrey Fisher at once. Frank H. Swett."

"S. F., Feb. 7, 1893. To Frank H. Swett, Spokane, Wn.: Appraiser will leave Wednesday night unless further advised. Liverpool London Globe."

"Liverpool London Globe: Your telegram this 7 to Frank H. Swett, Spokane, Wn., is undelivered. Swett left for Ft. Sherman, Idaho. Receiver."

"S. F., Feb. 8th, 1893. To F. H. Swett, Spokane, Wn.: Trainor and Fisher both engaged; Lippman leaves to-night; should arrive Saturday morning. Liverpool London Globe."

"S. F., Feb. 20th, 1893. To F. H. Swett, Spokane, Wn.: Our appraiser double price; do not hold him too long. C. Mason Kinne."

"Feb'y 21st, '93. Dated Spokane, Wash., 21st. To Col. C. Mason Kinne, N. E. Cor. Cala. & Leidesdorff: Case very bad; progressing rapidly as possible; appraiser worth price. Frank H. Swett."

This would indicate strongly that the insurance companies were desirous of having some one particular person, who had previously shown his ability to act in that capacity to their satisfaction and advantage, on the ground to serve as one of the arbitrators. It is also difficult to understand why such a person should be sent to Spokane while negotiations looking to an agreement were in progress, as was done, if the companies were proceeding in entire good faith. It I would rather look as though there was an attempt to get some advantage of the mercantile company in the premises. When the estimate of the goods lost and damaged, and the amount claimed therefor, was submitted by the mercantile company, the agents of the insurance companies refused to agree thereto. It does not appear that they made any proposition themselves, but they insisted on an appraisemnt by arbitrators under the conditions of the policy. These communications by telegraph were unknown to the officers and agents of the mercantile company at the time they passed between the agents of the insurance companies at Spokane and the officers of the companies at San Francisco; nor does it appear that they obtained any knowledge with regard thereto prior to the commencement of this action, the same being