the attorney was employed, from the time of giving notice of the lien to that party. (4) Upon a judgment to the extent of the value of any services performed by him in the action, or if the services were rendered under a special agreement, for the sum due under such agreement, from the time of filing notice of such lien or claim with the clerk of the court in which such judgment is entered, which notice must be filed with the papers in the action in which such judgment was rendered, and an entry made in the execution docket, showing name of claimant, amount claimed, and date of filing notice." It is apparent from an examination of the affidavits that the plaintiff and respondent has been guilty of bad faith in his dealings with the attorneys here seeking to enforce their liens, and, if we could find it within the power of the court to grant this application, we would most willingly do so. An examination of the question, however, leads us to conclude that it was the right of the judgment debtor to pay the amount of such judgment into court, to be thereafter disbursed to the proper parties entitled thereto, and that such payment completely and fully discharged all the obligations which such judgment created against him. Had the moving parties filed and perfected their liens with the clerk of this court, there would be no occasion for the present proceeding. Having failed to do so, we are of the opinion that the application must, be denied. HOYT, C. J., and DUNBAR and SCOTT, JJ., concur. (11 Wash. 181) DAVID v. OAKLAND HOME INS. CO. (Supreme Court of Washington. Feb. 14, 1895.) ACTION ON POLICY-WAIVER. In an action on a policy conditioned on suit in case of loss within six months after the fire, it appeared that, after the fire, defendant's adjuster visited plaintiff; that, pursuant to his directions, proofs of loss were served on the company; that, on notice of defects therein, additional proofs were served; that plaintiff was notified that the adjuster would again call; that plaintiff's offers for a settlement were rejected; and that no specific offer was made by defendant, but he was led to believe that there had been no final decision until after the six months had elapsed, when defendant denied all liability. Held, that defendant, by its actions, waived the condition as to suit in six months, and plaintiff had a reasonable time after the denial of liability to commence the suit. ders, J., dissenting. An Appeal from superior court, Pierce county; John C. Stallcup, Judge. Action by Thomas David against the Oakland Home Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed. Sharpstein & Blatter, for appellant. W. W. Likens, for respondent. HOYT, C. J. This action was brought to recover for loss of property covered by an insurance policy issued by the defendant. There was a clause in the policy which provided that no action could be maintained thereon unless commenced within six months from the date of the fire. On account of this provision, and of the fact that suit was not commenced until more than six months from the date of the fire, it is claimed by the appellant that the action cannot be maintained, and upon that claim alone it seeks to have the judgment rendered in the court below reversed. Upon the trial it appeared from testimony which was practically undisputed that soon after the fire an adjuster of the defendant visited Tacoma, where the property burned had been situated, for the purpose of adjusting the loss; that, pursuant to his directions, proofs of loss in attempted compliance with the terms of the policy were furnished the company; that soon after their receipt a letter was written by the adjuster to the plaintiff, informing him that the proofs of loss were defective, and calling attention to the terms of the policy for his direction in furnishing further proofs; that thereafter, and about the 1st of October, further proofs were furnished to the satisfaction of the company; that after that time the adjuster, in reply to a letter from plaintiff, stated that he would be in Tacoma some time in November, and would then take up the matter of further adjusting the loss in question; that he went to Tacoma at or about the time stated, and there met the plaintiff; that during the interview which followed propositions of settlement were made, as to the exact terms of which there is some conflict in the testimony; that no further action was taken in the premises until some time in March, when the plaintiff visited the office of the adjuster in the city of Portland, Or., when, for the first time, he was informed by the adjuster that the company was not liable for the loss; that the most it would do would be to return the premium which had been paid for the insurance. It further appeared from the undisputed proofs that such adjuster was fully authorized to represent the company in all matters connected with the adjustment of the loss in question. It was not made to appear that at any of the interviews prior to the one in the month of March there had been any definite proposition made to the plaintiff by or on behalf of the company. It did appear that the definite propositions made by plaintiff. had been rejected by the company, but, prior to the interview in March, above referred to, such rejections had been accompanied by such statements and actions as to induce the plaintiff to believe that there had been no final decision in regard to the adjustment of the loss. Did these interviews, and the action of the company in relation to the loss, warrant the respondent in belleving it was its intention to waive the condition in the policy upon which it now plants itself? The company contends that there were no facts shown by the proofs which would amount to a waiver of the condition, or even tend to show such waiver. In determining the question thus presented it must be borne in mind that the insured and the insurer, in cases like the one under consideration, do not stand upon an equal footing. The insurer is always represented by persons of experience in such matters, while the insured is usually a man of much less general information, with little or no knowledge in relation to insurance matters. Such being the relation of the parties, good conscience requires that there should be no attempt to overreach the insured by the insurer. It does not follow that the terms of insurance contracts can be set aside or disregarded. Such contracts, like all others, must be presumed to have been entered into by both parties with their eyes open, and the conditions to which they have assented must be enforced in contracts of this kind the same as in any other. But it does follow from the relation of the parties to each other that courts will require the utmost frankness on the part of those representing the insurer in their dealings with the insured. In the case at bar the conceded facts fail to show that the insured at any time had any direct promise that the loss would be adjusted in the future, and the whole, or any portion thereof, paid; but, in our opinion, it does appear from the undisputed testimony that at each time when the offer of compromise on the part of the insured was rejected by the company such rejection was made under such circumstances, and in such a manner, as to warrant the plaintiff in believing that the matter was still open for further consideration and adjustment between the parties. So long as the insured was thus given the right to suppose that the question of adjustment was an open one, he had the right to assume that the condition of the policy as to the time for the commencement of an action thereon had been waived by the company; and such waiver would continue until by some definite action on its part the company had notified the insured of the rejection of his claim, after which he would have a reasonable time in which to commence an action upon the policy. There is no proof tending to show that such notification was given prior to the month of March, and this action, instituted early in April, was brought within a reasonable time thereafter. It follows that the company was not in a situation to derive any benefit from the clause of the policy under consideration. What we have said disposes of the assignment of error founded upon an instruction given to the jury. The undisputed proofs, as hereinbefore interpreted, warranted the instruction to the jury to the effect that, unless they found that there had been a rejection of the claim prior to the date of the interview in Portland, in the month of March, the plaintiff could recover. The judgment must be affirmed. SCOTT and GORDON, JJ., concur. DUNBAR, J. I concur in the result; but on the ground that construing all the provisions of the contract together the statute of limitations had not commenced to run at the time the action was commenced. ANDERS, J. (dissenting). I see nothing in the record in this case that convinces me that the agent of the insurance company ever said or did anything in regard to the loss in question which either the respondent or the court had a right to construe as a waiver of any right the company had under its contract as set forth in the policy, and about which there is no dispute. I therefore respectfully dissent. (11 Wash. 176) LIBBEY V. PACKWOOD.1 (Supreme Court of Washington. Feb. 14, 1895.) CONTRACTS-ACCEPTANCE OF OFFER-EFFECT OF DELAY-SALE oF Corporate STOCK. Defendant contracted with certain stockholders of a corporation to cause to be returned to any stockholders all notes given by them for stock on surrender by them of their stock, and relinquishment of all claims against the corporation. Plaintiff, who was a stockholder, but not a party to the agreement, at first was told by defendant that he was not entitled to the benefits of the agreement, but delayed for a year after he knew that he was entitled to its benefits, and after defendant had secured his notes, so that he could return them before he sought to avail himself thereof. In the meantime the affairs of the corporation took an unfavorable turn. Held, that plaintiff's failure to elect within a reasonable time to ac cept the benefits of the agreement barred any rights he might have had thereunder. Dunbar and Gordon, JJ., dissent. Appeal from superior court, Pierce county; John C. Stallcup, Judge. Action by A. Libbey against S. T. Packwood for the specific performance of a contract for the repayment of money paid under a previous contract. Judgment for plaintiff, and defendant appeals. Reversed. R. B. Lehman, B. F. Heuston, and T. W. Hammond, for appellant. J. A. Williamson, for respondent. SCOTT, J. The appeal in this case is based entirely upon questions of fact. In November, 1889, one Walters promoted and organized a town-site company, called the "East Tacoma Improvement Company," for the purpose of building a town to increase the value of certain real estate in which he and others were interested. The parties to this suit, Walters, and 1 For opinion on motion for judgment on cross complaint, see 39 Pac. 647. two others were the original subscribers. The capital stock was $300,000, one-half of which was issued to the five original subscribers in equal proportions, and the other half was reserved, with the expectation of selling it, and taking the purchaser into the concern, much as an original subscriber. For the purpose of disposing of this stock so retained, a block of $4,000 and 40 lots in said projected town were offered at $2,000, with the provision that notes would be taken from the purchasers for the amount. The parties to this suit, Walters, and a number of other persons availed themselves of this offer, became purchasers of stock and lots, and gave their notes to the company, or to Walters for the company; the two notes, for $1,000 each, involved in this action, having been thus given by respondent on November 6, 1889. On April 8, 1890, appellant made a contract with three of the stockholders of the company, one of whom was Walters, another one of the five original subscribers, and the other one who had come in under the $4,000 block offer. By the contract, appellant agreed to secure to the three persons what was practically a rescission of their acts and contracts in respect to the incorporation, viz. the three agreed to surrender to appellant whatever rights and property they had from the corporation, and appellant agreed to relieve them from further liability. The contract also contained the following clause, the East Tacoma Improvement Company being one of the corporations referred to: "Third. I furthermore obligate myself to cause to be returned, to all or any of the stockholders of either of the corporations herein first named, each and every promissory note or notes executed by them in favor of either of said corporations upon their surrender for cancellation of the shares of stock of either of said corporations held by them, together with a relinquishment of all claims in their behalf against said corporation for real estate or other values given or agreed to be given them in consideration of the execution and delivery to said corporations, or either of them, of the said promissory notes to be returned." On May 15, 1890, respondent paid $600 on one of the notes made by him as before stated, because, as respondent claims, he was informed by appellant that he was not included in the contract, and therefore supposed he was obliged to pay the note, and, as appellant claims, because he had elected not to come in under the contract, and therefore should pay up. On or about June 24, 1890, the respondent received a copy of the contract with a letter from one of the parties thereto other than the appellant, advising him that he was included therein. On June 30, 1891, the respondent transferred his $30,000 of stock to a third party. On December 4th, following, this action was commenced to compel a spe cific performance of said contract of April, 1890, and to recover back the $600 paid on the note as aforesaid. Judgment was rendered for the plaintiff for this $600, and the defendant appealed therefrom. One of the contentions between the parties was as to whether the respondent was required to surrender all of his stock, which included the $30,000, as well as the $4,000, under the contract, if he sought to avail himself of it. Respondent contends that he was only to surrender the $4,000 thereunder, while appellant contends that he was to surrender all of his stock; and it was proved that the other parties to the contract did surrender their entire stock thereunder. We regard this contention as immaterial, however, for it seems to us that the first point made by appellant is well taken, and that is that the respondent waived his right to come in under the contract, if he had any, by failing to exercise it within a reasonable time. The proof shows that he delayed for about a year and a half before he sought to avail himself of its provisions. Respondent contends that he should be excused for this delay, because the appellant first represented to him that he had no right to come in under the contract; and, secondly, that the appellant was not in a position to comply therewith, because he did not have both of the notes in his possession to turn over to the respondent on the surrender of his stock. And it is further contended that time was not of the essence of the contract, and that the delay of a year and a half ought not to bar a recovery, regardless of the reasons stated for the delay. The proof shows, however, that for considerably more than a year after respondent was fully advised of his rights in the premises, and after appellant had secured the notes, and was in a position to surrender them upon a surrender of the stock, the respondent remained inactive. Of course, it is not contended that the respondent was bound to come in under the contract, he not being a party thereto. At the most, he had simply the right to an election; and, to avail himself of this, he should have exercised it within a reasonable time. We are fully satisfied from the proofs introduced that respondent did not at first intend to surrender his stock under the contract, thinking that the speculation was likely to prove a profitable one; but after the delay aforesaid, and after the affairs of the company had taken an unfavorable turn, he sought to secure the benefit of its provisions. We think his action in the premises so clearly barred his right to a recovery that the finding of the lower court cannot be sustained, and the judgment should be reversed. HOYT, C. J., and ANDERS, J., concur. DUNBAR and GORDON, JJ., dissent. (11 Wash. 161) EUREKA SANDSTONE CO. v. LONG et al. (Supreme Court of Washington. Feb. 14, 1895.) ACTION ON BOND-PRINCIPAL'S FAILURE TO EXECUTE-EFFECT-JOINDER OF PARTIES. 1. The fact that the bond given by a contractor for the performance of his contract to build a public building is not signed by the contractor does not relieve the sureties thereon from liability. Hoyt, C. J., dissenting. 2. Material men, in an action to recover for materials furnished a contractor for the erection of a public building, may join as defendants the contractor and the sureties on his bond, though it was not signed by the contractor. Hoyt, C. J., dissenting. Appeal from superior court, Pierce county; W. H. Pritchard, Judge. Action by the Eureka Sandstone Company against J. T. Long and others to recover the purchase price of building material furnished. From orders sustaining demurrers to the complaint, and from the judgment thereupon entered, plaintiff appeals. Reversed. Arthur N. Jordan, for appellant. Crowley, Sullivan & Grosscup, for respondents Long and Addison. Parsons, Corell & Parsons, for respondents Fife, Van Oglo, Ralph, Uhlman, Catron, Bringham, Mann, and Kelley. DUNBAR, J. Respondent Long built a courthouse for Pierce county, which building was accepted June 21, 1893. The county took from Long and his codefendants a bond under section 2415 of the General Statutes. The bond was not signed by Long, but was signed by all the other defendants, and was delivered to the county by Long, and by the county accepted. Appellant, the Eureka Sandstone Company, furnished Long something over $16,000 worth of material, which was used in the construction of this courthouse, and only a part of which has been paid for, and brought this action against Long and his sureties to recover the balance due. Defendants demurred, and the demurrers were sustained. Plaintiff stood upon its complaint, and judgment for defendants was entered on the demurrers. This appeal is taken from the orders sustaining the demurrers and from the judgment entered. The main fact upon which the demurrers were based and upon which the court decided the case below, and which is argued here by both respondents and appellant, is that the name of the defendant John T. Long, the contractor, was not signed to the bond. From this fact it was contended that the complaint did not state a cause of action, and that there was a misjoinder of causes, and a defect of parties defendant. After a somewhat extended investigation of the authorities governing the principles involved in this case, we are of the opinion that the murrers court committed error in sustaining the deto this complaint. After stating all the facts, the complaint alleges that said bond was delivered to the county commissioners of said county, with the knowledge and consent of the sureties. It also alleges that Long procured and caused it to be executed, and at the time of the execution of the bond provided for by the statute it was delivered by the defendants herein to said board of county commissioners as part and parcel of said contract. It is also alleged in the complaint that the bond was duly filed by the board of county commissioners on the 19th day of September, 1890, and that on the 7th day of January, 1892, before the sale and delivery of the stone mentioned in the complaint, for the payment of which this action is brought, the defendants, and each of them, together with the county commissioners of Pierce county, for the purpose of modifying and changing the terms and conditions of the original contract and said bond, entered into and delivered to the said county commissioners a certain other contract in writing, a copy of which is attached to and made a part of the complaint; and that thereafter, with the knowledge and consent of the commissioners and these sureties, Long proceeded to complete and carry out his contract with the said county as modified by this second contract. There is a direct conflict of authority on this question, as, indeed, there is on almost every question concerning the liability of sureties on a bond. The older cases, it seems, have held closely to the rule that bonds are to be construed strictly in favor of the sureties; while this rule has been modified by later decisions. This modification, it seems to us, is in accordance with common sense and the spirit of the age. A bond is nothing more nor less than a contract, and the sureties to a bond are simply parties to a contract; and we know of no reason why the same rules of construction should not be applied to a bond as to any other contract. It is true that the sureties may not be beneficiaries in any respect, and that it may be purely a matter of accommodation with them; but the bond was made to effect a certain purpose. That purpose was to secure the obligees from loss in case of its violation; and there is no reason why the law should make it more difficult for the obligee to obtain redress in case of a violation of a bond than a party to any other contract. The true inquiry should be, what was the meaning and intent of the contract? And when that meaning and intent can be ascertained, the contract ought to be enforced.. While, as insisted by respondents, courts should not presume to make contracts for individuals. neither should they allow them to escape responsibilities which they have voluntarily assumed, by too strained a construction of technical law. The allegation in this complaint is a broad one, viz. that this bond was delivered with the knowledge and consent of the sureties. If this be true,-and for the purposes of this case it must be taken to be true,-then the sureties waived any formal or other objection that there might be to this bond; for, under the plain terms of the allegation, they must have had knowledge of the bond as it was delivered, and consented to its delivery in that condition. It seems to us that the principle embodied in this case was decided by this court in the case of Ihrig v. Scott, 5 Wash. 584, 32 Pac. 466, where it was held that where a bond, ́executed by a contractor for the erection of a schoolhouse, by mistake named the board of school directors instead of the state of Washington as obligee, such defect was not fatal if, from the terms of the bond, it appeared that its object was to secure laborers and material men as provided for by the law making provision for such bond. In that case this court said: "The simple fact, then, of the want of the proper obligee in this bond is not fatal to it, if, from its terms, the object for which it is executed appears. Even a superficial examination will show such to be the fact. No one can read the bond in the light of the statute above referred to without at once coming to the conclusion that in executing it by the principal and sureties, and the acceptance thereof by the proper officers of the school district, there was an intention on the part of all to provide the security required by said statute, in the interests of such as might thereafter by virtue thereof become entitled to protection. This would be the rule without the aid of any curative statute; for while it is true that under the old rules existing at common law much technical accuracy was required in regard to instruments of this nature, yet, even in the absence of any statute, such rule has been by the decisions of the courts very much modified, and at this time courts look more to the substance than to the form in determining as to whether or not such instruments shall have force." And the court then proceeds to cite our statutes, which provide that "no bond required by law, and intended as such bond, shall be void for want of form or substance, recital, or condition; nor shall the principal or surety on such account be discharged, but all the parties thereto shall be held and bound to the full extent contemplated by the law requiring the same, to the amount specified in such bond." Code Proc. § 800. Certainly the reasoning of the court in this case is applicable to the one at bar. In the case discussed there was no obligee mentioned, for the naming of the board of school directors, who could not, under the law, be obligees to the bond, amounted to no mention at all. In the case at bar there is no signing by one of the obligors. Certainly there can be no more reason why a bond should be declared void and illegal by reason of its nonexecution by the obligor than by reason of its omission of the name of the obligee; and as, with the case discussed, it takes but a superficial examination of the case at bar to lead one to the conclusion that in the execution of the bond in question by the sureties, and the acceptance thereof by the county commissioners, there was an intention on the part of all to provide the security required by the statute in the interests of such as might thereafter, by virtue thereof, become entitled to protection. The appellant in this case, relying upon this bond, furnished this material to the contractor under the rule laid down in Ihrig v. Scott, supra, and certainly ought to be protected. State v. Bowman, 10 Ohio, 445, is a wellreasoned case, and in spite of the ingenious attempt by counsel for respondent to distinguish it from the case at bar, we think is exactly in point. The court in that case, in a very learned opinion, after the citation by counsel of many of the cases which are cited by respondents in support of their contention here, squarely decided that where in a county treasurer's bond the name of the treasurer is recited in the body of it, but where he neither signs nor seals it, his sureties who do execute it are liable. The statute in that case provided that the county treasurer, previous to his entering upon the office, should give bond, with four or more freehold sureties, etc., and it also provided that in case of default suit should be instituted against the treasurer and his sureties. "From which," says the court, "it is argued that the statute contemplates an execution by the principal as well as his sureties. I admit that it is the duty of the treasurer to execute the bond, and that the statute even supposes that he will do so. But I deny the proposition that, if it is not done, the bond will be therefore void. The bond may be procured; may, in the words of the act, be given by the principal, although he did not sign or seal it. The completeness of the bond, stricti juris, depends simply upon the fact whether it was given by him. And that it was thus given, the indorsement on the back of the bond on the very day on which the term of office commenced, on the very day when the bond should be given, of the oath of office by the principal, affords, in the absence of any countervailing testimony, the strongest possible presumption." The fact that the bond was given by the contractor in this case plainly appears from the allegations of the complaint, and, if the completeness of the bond, stricti juris depends upon that fact, the demurrers were certainly wrongfully sustained. Again, the court, in answer to the argument used in the case above mentioned, viz. that the sureties would be deprived of their rights against the principal if judgment should be obtained in this bond, says: "Great reliance is placed upon the fact that if the instrument is not executed by the principal it will affect the remedy over against him by |