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from the record if not properly served upon ant the Washington Southern Railway Comthe parties who appeared in the action. The pany, which latter corporation assumed the motion to strike the statement will therefore payment of all the debts of the said Satsop be granted. This, however, does not au- Railroad Company. Judgment was rendered thorize us to dismiss this appeal. But, as in favor of the plaintiff, and the Washington there is nothing for the court to determine Southern Railway Company appeals. without a statement of facts, the judgment The questions raised are practically resolvof the court below must be affirmed.

ed into two. It is urged that the president

and secretary of said corporation had no HOYT, C. J., and DUNBAR, SCOTT, and

authority to execute or issue the notes in GORDON, JJ., concur.

question; and it is further urged that the notes were without consideration, on the

ground that the corporation could not become (11 Wash. 414)

a purchaser of its own capital stock. In supMILLER v. WASHINGTON SOUTHERN

port of the first proposition, it is urged that RY. CO. et al.

this case is governed by Elwell v. Railroad (Supreme Court of Washington. March 16, Co., 7 Wash. 487, 35 Pac. 376, and it may be 1895.)

doubtful whether there is any distinguishing TRANBACTION WITH CORPORATION ESTOPPEL TO feature in this case sufficient to except it DENY LEGALITY-POWERS OF OFFICERS.

from the one cited. It does appear, however, Plaintiff sold stock in a railway corporation to the company itself, through its presi

that said sum of $8,000 in money had been dent and its secretary, who paid therefor in cash paid to the plaintiff upon the transfer of the and in notes issued by them for the company.

stock, which was prior to the purchase of the Subsequently defendant purchased the company's property, including the stock so bought,

property of the Satsop Railroad Company by and assumed its debts, and, though the transac- the Washington Southern Railway Company; tion with plaintiff fully appeared on the books, and it further appears that for something it never questioned the validity thereof for over two years. Held that, in an action on the notes,

more than two years after the transaction defendant was estopped to deny the authority of

aforesaid, which was shown by the books of the officers to issue them, or to allege that the the company, no one questioned the validity transaction was illegal, because of a corpora- of said proceedings. If these facts are not tion's inability to buy its own stock.

sufficient to except it from the rule laid Appeal from superior court, King county; down in Elwell v. Railroad Co., supra, then T. J. Humes, Judge.

it is, at least, questionable whether the deAction by Mary M. Miller against the cision in that case does not conflict with sevWashington Southern Railway Company and eral former decisions of this court, hereinaftothers upon promissory notes. Judgment for er mentioned, which we prefer to follow if plaintiff, and said company appeals. Af- there is conflict. We are of the opinion that firmed.

the doctrines announced in the cases of DugJames Kiefer, for appellant. Will H. gan v. Boom Co., 6 Wash. 593, 34 Pac. 157; Thompson, E. P. Edsen, and John E. Humph

Carrigan v. Improvement Co., 6 Wash. 590, ries, for respondent.

34 Pac. 148; Tootle v. Bank, 6 Wash. 181,

33 Pac. 315; and Seal v. Investment Co., 5 SCOTT, J. This action was brought by the Wash. 422, 32 Pac. 214,--require an affirmrespondent to recover on two promissory ance of this case. Appellant, having purnotes, for $5,000 each, purporting to have chased all the property of the Satsop Railbeen executed by the Satsop Railroad Com-road Company, which included the stock purpany on the 10th of November, 1890, by J. chased by said last company of the respondR. McDonald and A. H. Anderson, president ent, with full knowledge of the transaction, and secretary of said company, each of whom cannot raise the objection that the officers of also indorsed said notes in a personal capaci- the Satsop Railroad Company acted beyond ty. The Satsop Railroad Company was a the scope of their authority in the issuance of corporation organized under the laws of this the notes. The Satsop Railroad Company state, and was engaged in the construction never questioned the purchase of said stock, and operation of a railroad. The plaintiff the payment of the $8,000, nor the execution was the holder of 250 shares, of $100 each, of the notes, but, in effect, ratified the same of the capital stock of said railroad compa- by the sale aforesaid to appellant. Nor are ny, and on the date aforesaid sold said stock we required in this case to decide whether to said corporation, acting by its president or not a corporation can purchase its own and secretary aforesaid, for the sum of $18,- stock, as appellant is likewise, upon the 000, $8,000 of which was paid in cash, and grounds aforesaid, estopped from raising the notes in question given for the balance. that question. Affirmed. After the transfer of said stock and the execution of the notes, the Satsop Railroad DUNBAR, ANDERS, and GORDON, JJ., Company sold all its property to the defend- concur. HOYT, C. J., concurs in the result.

v.39P.no.6-43

It ap

(11 Wash. 370)

avenue 80 feet in depth"; and the lien is MCHUGH V. SLACK et al.

claimed upon the land thus described, as (Supreme Court of Washington. March 8,

well as the building situated thereon. 1895.)

pears from the evidence that there is no such MECHANIC'S LIEX-SUFFICIENCY OF NOTICE - DE- plat or addition to Everett as the Everett SCRIPTION OF PROPERTY-OWNERSHIP

Land Company's addition, but the evidence NAME OF CONTRACTOR.

discloses that the land company, on Decem1. A description of property as a certain

ber 21, 1891, filed for record in the auditor's brick building, situated on certain lots in block 670 of the E. Co.'s addition to the city. of E,

office a plat of the “Everett Land Company's which building is known as the "S. Building,' First Addition to Everett." The appellant, and fronts on H. avenue, in said city, and giving however, never erected any building in that its dimensions, sufficiently describes the property, though it is not in such addition.

addition, and there is no such property there2. As against the owner of the property, a in as that described in respondent's notice of lien notice sufficiently alleges its ownership lien, there being no block No. 670 and no though it erroneously states that the equitable

such street as Hewitt avenue noted on said title only is in him, and the legal title is in another.

plat. The evidence further discloses that on 3. A notice of lien which alleges that two February 6, 1892, the said land company and persons to whom the lienor furnished materials

W. J. Rucker and Bethel J. Rucker filed for were the contractors for the construction of the building is sufficient, though on the trial it ap

record a duly-acknowledged plat, designated pears that one of them was the contractor, and as a “Plat of Everett.” On this latter plat, that the other was his subcontractor; it also ap. and nowhere else in the city, we find Hewitt pearing that both told plaintiff that they were

avenue and block 670, containing lots numthe contractors.

bered as those set forth in the notice of lien; Hoyt, C. J., dissenting.

and it is admitted that a two-story brick Appeal from superior court, Snohomish

building belonging to and constructed by the county; John C. Denney, Judge.

appellant, of the dimensions indicated in the Action by James McHugh against Charles

notice of lien, is situated on said lots and G. Slack, T. L. Grant, and others. From a

block. judgment for plaintiff, defendant Slack ap

A mechanic's lien is purely a creature of peals. Affirmed.

the statute, and can be maintained only by Crowley, Sullivan & Grosscup, for appel- a substantial compliance with all of the stat. lant. Delaney & Gamel, for respondent. utory requirements. Phil. Mech. Liens (3d

Ed.) § 315. A lien claimant is required to ANDERS, J. This is an appeal by the de- record his claim for the purpose of giving fendant Slack from a judgment and decree notice to all persons interested, or who may of the superior court of Snohomish county become interested, in the property to be af. foreclosing a mechanic's lien on lots 14, 15, fected by the lien, of the amount of his 16, and 17 in block 670 in the city of Everett. claim, and of all the facts upon which it is Several objections to the sufficiency of the based. And whatever facts are required by plaintiff's claim of lien as introduced in evi- the statute to be stated in the lien notice dence were interposed by the appellant in must be stated; otherwise the notice is wholthe court below, and the same are relied up- ly ineffectual, and no lien is thereby created on here as grounds for the reversal of the or preserved. judgment. The statute under which this The particular objections to the claim of lien is claimed provides that every person lien urged by the appellant are (1) that it claiming a lien must file with the county does not describe any property owned by the auditor of the county in which such prop- defendant Slack with sufficient certainty for erty, or some part thereof, is situated, a identification; (2) that it does not state the claim containing a statement of his demand, name of the owner or reputed owner; (3) after deducting all just credits and offsets, that it does not state the name of the person with the name of the owner or reputed own- by whom the plaintiff was employed, and er, if known, and also the name of the per- does not state the name of the contractor son by whom he was employed, or to whom and subcontractors, showing the contractual he furnished the materials, with a statement relations between the defendant Slack and of the terms and conditions of his contract, if the plaintiff; and (4) that it does not state any, and also a description of the property the terms and conditions of the contract unto be charged with the lien sufficient for iden- der which the plaintiff performed labor and tification. 1 Hill's Code, $ 1667. The prop- furnished material. erty sought to be charged with the lien in The statute does not require a precise and this instance is described in the lien notice minute description of the property against as "that certain two-story brick building, sit- which a lien is claimed to be set forth in the uated on lots numbered 14, 15, 16, and 17 in recorded claim or notice of lien. All that is block 670 of the Everett Land Company's ad- required is a description sufficient for identi. dition to the city of Everett, Snohomish coun-fication, and it matters not what particular ty, Washington, aforesaid, which building is words are used if the property is thereby known as the 'Slack Building,' and fronts on identified with reasonable certainty. Any Hewitt avenue, in said city, and is about 120 description that identifies is sufficient, though feet front, and extending back from said not accurate. Phil. Mech. Liens (30 Ed.) $ 379. If, by rejecting what is false in a de of said times was, and now is, the legal ownscription, enough remains to identify the er, of said lots hereinbefore mentioned and property attempted to be described, the de- described, and that the said C. G. Slack is scription is sufficient under the statute; and, also now owner of said Slack building, situthat being so, if by rejecting the words “of ated on said lots, and who caused the same the Everett Land Company's addition to the to be erected.” It appeared at the trial that city of Everett," contained in the descrip- the land company had no interest in these tion under consideration, the remaining por- premises at the time of filing the lien claim or tion is sufficient to identify the property, the afterwards, and that the appellant was and description is not insufficient. Disregarding ever since has been the owner thereof in fee. these words, we have the statement that the The lien notice would have satisfied the stat. property upon which the lien is claimed is a ute if it had stated simply that Mr. Slack certain two-story brick building, situated on was the owner or reputed owner of the premlots numbered 14, 15, 16, and 17 in block num- ises; and should the fact that he owned a bered 670, which building is known as the greater interest in the land than that set out "Slack Building," and fronts on Hewitt av- in the notice, or the further fact that the enue, in said city, and is about 120 feet land company owned no interest, invalidate front, and extends back from said avenue 80 the lien ? Under the circumstances. we think feet in depth; and we think such description not. There are no interested subsequent puramply sufficient to identify the property. As chasers or incumbrancers in this case, and, or we have said, there is but one block 670, but course, the real owner could not have been one street known as Hewitt avenue, and but i misled or injured by the statement that he one such building as that described in the no- was the equitable owner only. The action tice owned or constructed by the appellant, in was dismissed, as we understand it, as to the the said city of Everett. It is said by Jones, in Everett Land Company before trial, and his recent work on Liens, that the land may therefore it was not injured or misled by the be described by buildings or structures cov- notice; nor do we think that any other party ering the land if it is sought to subject only would have been misled by the statement of the land so covered to the lien, and the build- ownership in the notice of lien, as there was ings are such in character, or are so describ. sufficient therein to enable all persons, by ed, as to be readily identified. 2 Jones, proper inquiry and investigation, to ascertain Liens (20 Ed.) $ 1421. And, accordingly, in the real facts of the case. Brown v. Coke Co., 16 Wis. 578, a descrip- We are also of the opinion that the lien notion in a petition was held sufficient which tice sufficiently states the name of the person designated the property as “the several build- by whom the claimant was employed, as well ings known as the gas works of the La as the name of the contractor or the owner Crosse City Gaslight & Coke Company, sit. of the building. The notice states that some uated on lots numbered 8, 9," etc., "in block time prior to the 20th day of April, 1892, Mr. 14," although there was a mistake in giving Slack entered into a contract with T. L. Grant the description of the lots upon which the and John Callaghan for the erection and conbuildings were situated by numbers and struction of said Slack building, on the lots blocks. There the well-known principle was hereinbefore mentioned and described, by applied that the addition of a false circum- which contract it was agreed that the said stance to a description otherwise sufficient Grant and Callaghan were to erect and fully will not invalidate it. In Scholes v. Hughes, complete and finish said building, for which 77 Tex. 482, 14 S. W. 148, the property was the said Charles G. Slack agreed to pay a described as a "brick city hall" in a town certain stipulated price mentioned in said connamed, and it was held that the description tract; that under and by virtue of said conwas sufficient. And in Strawn v. Cogswell, tract, and in furtherance thereof, the said 28 Ill. 457, a description, which was held suf- Grant and Callaghan, as contractors for the ficient, simply designated the property as a erection of the said building, on or about the “mill belonging to the party of the second 20th day of April, 1892, entered into a conpart," named in a contract. According to tract with this claimant, James McHugh, these authorities and others that might be wherein and whereby this claimant promised cited, there can be but little doubt as to the and agreed to furnish the materials and do sufficiency of the description in the lien no- the stonework therein specified. It appears, tice in question. In fact, we have seen no however, from the evidence, that T. L. Grant, case in which a lien notice was held insuffi- and not Grant and Callaghan, entered into a cient where the property was therein de- written contract with the appellant, Slack, scribed with as great a degree of certainty as for the construction of a brick building upon it is in this instance.

the lots heretofore described in, block 670 on Is the ownership of the premises sufficiently the plat of Everett, and that the said Grant stated in the claim of lien? is the next ques- sublet the stonework of said building to said tion to be determined. It is alleged therein John Callaghan, by whom the respondent that “prior to April 20, 1892, one Charles G. was subsequently employed to do the same. Slack was, and also at all the times herein- But, according to the testimony of the plainafter stated was, and now is, the equitable tiff at the trial, he was told by both Calowner, and the Everett Land Company at all laghan and Grant that they were the concractors for the erection of the building; and, of $1,035.50 for shingles alleged to have been under these circumstances, we are of the sold and delivered to appellant. The appel. opinion that the fact that Callaghan was not lant pleaded a counterclaim for damages for such contractor ought not to defeat the lien. breach of contract in the sale of shingles. It is said by Phillips (Mech. Liens, $ 345) that claiming to have purchased the output of the the fact that a notice of lien named A. as a mill from respondents to the amount of 100 person against whom the claim was made as car loads. The court held the contract not a contractor, while in fact A. and B. were the to be one for the sale of 100 car loads of contractors, will not necessarily vitiate it. shingles, and instructed the jury to find for And, applying the same principle to the lien the respondents. Motion for a new trial notice under consideration, it must be held was filed and denied, and judgment rendered to sufficiently state the name of the person in favor of respondents. From such judge by whom the claimant was employed.

ment this appeal is prosecuted. The objection that the lien notice does not The respondents were doing business, in state the terms and conditions of the con- November, 1893, in Machias, Wash., and tract under which the plaintiff performed ia- were engaged in the manufacture and sale bor and furnished material is not tenable. In of shingles. An order was sent to them our opinion, the conditions and terms of the from Mitchell, Lewis & Staver Company for

ract are fairly specified in the claim of a car load shingles to be shipped to aplien.

pellant at Omaha, Neb. The respondents Lastly, it is claimed that the evidence fails filled the order, and at the same time sent to support the allegations of the complaint, a letter to the appellant, which, among other as well as those of the lien, and that the evi- things, stated that they would like to condence is too indefinite to justify the finding of

tract their shingles with some one who the court below that there is any amount due would take all the cut, which would be four the plaintiff and respondent. While the evi. cars per week. This letter was dated Nodence is not very full and explicit in some re vember 13, 1893. The appellant answered spects, we think, as a whole, it is sufficient as follows: “Messrs. Perkins & Co., Machito justify the finding of the court, and the as, Wash.-Gentlemen: Yours of the 13th judgment will not therefore be disturbed on received. I can use the following at anthe ground of insufficiency of the evidence. nexed prices and weights, based on not to The judgment is affirmed.

exceed 55 cents rate to Omaha. [Then fol

low the prices and description of the shinDUNBAR and SCOTT,JJ., concur. HOYT, gles.] * * * Shingles to be shipped to my C. J., dissents.

address as ordered, and all invoices to be sent direct to me at Omaha. I have recent

ly purchased 25 cars at even a less price than (11 Wash. 292)

above. Yours, truly, C. L. Chaffee." Prior KEEFE et al. v. CHAFFED.

to the shipment of any shingles except the (Supreme Court of Washington. March 1,

car shipped on the order of Mitchell, Lewis 1895.)

& Staver Company, Perkins & Co. received CONTRACT BY CORRESPONDENCE-OFFER AND AC

from the appellant, through the mail, a letCEPTANCE-SALE OF MERCHANDISE. Plaintiff, a shingle manufacturer, wrote

ter containing the following: “Your teledefendant that it desired to contract for the sale

gram of the 24th, in answer to ours of the of the entire output of its mills, and defend- 18th, received. We wired you to-day to ant replied, stating that he could use a certain

ship five cars Extra Star A Star, 6 to 2. We amount of shingles at a certain price. Plaintiff then wired, accepting defendant's "terms,” and

will take 100 cars of shingles as per our requesting orders. Defendant, before any ship- prices of the 18th. Shingles to be ordered ment was made, wired plaintiff to ship 5 car as wanted by us, and you are to ship as orloads, stating that he had written. The letter acknowledged receipt of plaintiff's telegram, and

dered.” Subsequent to this the respondents repeated the orders, and also stated that defend

telegraphed: “We accept terms. Wire orant would take 100 cars at the price named. ders." In answer, Perkins & Co. received Plaintiff, after receipt of the telegram and let

from appellant the following telegram: “Omater, shipped the 5 cars as directed, and later wrote, acknowledging receipt of the last letter,

ha, Nebraska, Nov. 25, 1893. To Perkins & and stating that it had 20 cars wbich it would be Co.: Ship five cars Extra Star A Star, six ready to ship as soon as it could get cars. Held, to two inch. Have written." It is in testithat the correspondence did not show a contract for the 100 cars.

mony that both the telegram and letter above

referred to were in the possession of PerAppeal from superior court, King county: kins & Co. at the time the five car loads of R. A. Ballinger, Judge.

shingles sued for in plaintiffs' complaint Action by A. M. Keefe and others against

were shipped, to wit, December 4, 5, 6, 7, C. L. Chaffee. There was a judgment for

and 11, 1893. Afterwards Perkins & Co. plaintiff's, and defendant appeals. Affirmed.

wrote to the appellant, among other things, Wiley & Bostwick, for appellant. Allen as follows: "Yours of the 25th at hand. In & Powell, for respondents.

reply, will say

we have 20 cars of

6 to 2 on hand, and will be ready to ship DUNBAR, J. This is an action by respond- them as fast as we get the cars." On De ents to recover from the appellant the sum cember 5th, Perkins & Co. wrote to appel.

|

JJ.,

lant as follows: "We may not be able to lant for the failure of the respondents to ship after January 1st, 1891, as all mills have combined, and no one will be allowed judgment will therefore be affirmed. to ship at these figures. We have about ten cars we would like to ship before the first. HOYT, C. J., and ANDERS and GORDON, If you have any orders to fill, please advise

concur. SCOTT, J., concurs in the reus." The record shows that after this com- sult. munication the appellant wrote to the respondents, claiming that he had a contract with them for 100 car loads of shingles at

(11 Wash. 390) the prices specified in his letters, and de- WEBSTER et al. v. THORNDYKE et al. manded that the respondents comply with (Supreme Court of Washington. March 9, the contract. The respondents answered,

1895.) denying that they had a contract for any REVIEW ON APPEAL — FINDINGS IN EQUITY CASES more shingles than they had shipped. This

- SEPARATE PROPERTY OF WIFE-COXSTRCC

TION OF Will-POWER OF SALE. was substantially the testimony in the case,

1. Under the act of 1893, a finding by the and upon such testimony the appellant ask

trial court in an equity case will not be disturbo ed the court to instruct the jury as follows: ed if reasonably supported by the evidence. "You are instructed by the court that the 2. Land purchased by a wife in her own correspondence introduced in evidence be

name and with her own money is presumed, in

the absence of other evidence, to be her separate tween the parties is, in legal effect, a con

property. tract on the part of the plaintiffs to sell to 3. Testatris gave to her husband the use of the defendant the output of their shingle

certain lots "until such time as is deemed by my mill to the amount of one hundred cars, at

executors and all interested in the sale of said

lots, to sell said lands. together" with certain the prices named, as ordered by the defend- other lots, and directed the executors, “out of ant, and to be shipped as ordered." The the moneys arising from such sale,” to invest court refused to give the instruction, and the

a certain amount, and pay the income to the hus

band for life, to divide the “residue of the money defendant excepted at the time. Thereupon arising from such sale" among her children, and, the court, of its own motion, charged the after the death of her husband, to divide the jury as follows: “Now, I charge you as a

money, the income of which she had given to matter of law that the contract set out in

her husband, among her grandchildren. Held,

that the executors took the legal title to the land, the affirmative defense in this action has

with power to sell it. not been established; that is, the evidence

Appeal from superior court, King county; fails to show a contract upon the part of the

A. W. Hastie, Judge pro tem. defendant with the plaintiffs for one hun

Suit by David H. Webster against Mary E. dred cars of shingles as alleged,"—to the

Thorndyke and others for the construction of giving of which instruction the defendant

a will, and to determine the ownership of cerat the time excepted, and he alleges the

tain lots. From the judgment, David H. same as error here. The record, however,

Webster and others appeal. Affirmed. discloses the fact that the appellant consented that the court should instruct the Blaine & De Vries, for appellants Webster jury as to the legal effect of the evidence. and Bogart. Battle & Shipley, for appellant He does not question here that the court had

Adams. M. Gilliam, for respondent Eddie M. no right to instruct the jury upon the evi- Webster. Carr & Preston and W. R. Bell, for dence as a question of law, but insists that, other respondents. as a law proposition, the evidence showed that the contract was made out. There are HOYT, C. J. John Webster and Phoebe no legal questions involved in this case. It Ann Webster were husband and wife. They is simply the construction of a contract as resided for a long time prior to their death shown by the testimony which we have sub- in the county of King. During a portion of stantially set out, and we are unable to the time they lived upon a farm in the White base any particular argument upon it. But, River valley. While living there, the lots, in our judgment, the court reached the prop- the title to which is in controversy, were purer conclusion. As we think, the correspond. | chased, and deeded to the said Phoebe Ann ence shows that there never was any agree

Webster. At the time of her death, she ment made that the respondents were to made a will in which she sought to dispose of furnish the appellant 100 car loads of shin-said lots as her separate property, and whethgles, or any other number of car loads than er or not she had a right so to do is one of the the actual number furnished, at the prices, principal questions presented on this appeal. proposed by the appellant. We do not think It was claimed on the part of the respondthat, if the appellant had refused to take ents that the money with which these lots the shingles, the testimony is sufficiently were purchased was that of Phoebe Ann conclusive to warrant the respondents in Webster, and that the deed was taken in her compelling him to accept them, or to enforce name on account of the purchase price havthe specific performance of the contract; | ing been paid by her and the purchase inade and, on the other hand, we do not think it in her interest. On the other hand, it was was so conclusively established as to war- contended that the money belonged to said rant the recovery of damages by the appel- Phoebe Ann Webster and her husband, John

1

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