in the case of Burchard v. Burchard, a divorce suit, should be modified so that Clinton A. Burchard could take the children mentioned in the decree for a time, and that the plaintiff should have the children for a while, and that they should be taken back and forth between the petitioner and respondent as could be amicably agreed upon; did not think that it was to be continual; that the respondent was to have the absolute custody and control of said children; that he intended to present the said stipulation to the court, but the matter was overlooked in some manner, until it was lost; that Mrs. Ackley was very much excited during the conference, so much so that she fainted, and that, after recovering, she consented to let the children go in accordance with the stipulation concerning which he had before testified. He, however, admitted, on cross-examination, that he had stated to Mr. Stewart, one of Burchard's attorneys, on May 20, 1894, in the city of Tacoma, that he never was more surprised in his life than when he heard that Mrs. Ackley had stolen the children, and thought that she must be crazy to think she had any right to the children. This testimony is, of course, in flat contradiction of the testimony in chief that the custody of the children given to Burchard was only a temporary custody, and renders the testimony of Attorney Pruyn practically useless, except to the uncontradicted fact that a stipulation had been drawn up, signed, and executed, and that he had intended to present the same to the court. The testimony of Mrs. Ackley is to the effect that the stipulation provided only for the temporary custody of the children, and the same is substantially the testimony of H. C. Ackley, her husband; while the testimony of the respondent is that he paid these attorneys this fee of $40, not for the purpose of obtaining a temporary control of the children, for that was not the object of his visit to Ellensburgh, but for the purpose of obtaining a permanent modification of the decree in the divorce suit, to the end that the care and control and custody of the children should be awarded to him, instead of to the appellant; that such were the provisions of the stipulation; and that, relying upon the fidelity of the attorneys thus employed and paid, he presumed that the same would be properly entered in the court by them, as under the contract of their employment they were to pay all the court fees; and that he never knew that the appellant made any claim to the possession or control of these children until the following October, when she appeared, and demanded their possession from his daughter. The testimony of H. C. Ackley is disputed by his own letters. One of these, written to respondent May 7, 1893, is as follows: "C. A. Burchard, Esq., Ainsley, Wash.-Dear Sir: I am very anxious to hear from you in regard to the little girls. I believe you will be kind enough to let me know

how and when you got through. How are you getting along? Are they homesick? I trust you will be kind enough to let them come back soon to see us. You must know by this time that all the letters that have been written to you from this place are false; not one word of truth in them. The low-down conspirators have all left this place, as I suppose you know very well. They did not have the cheek to face the public here after doing this cruel deed. I could not send the little girls' clothes with them, for you know we didn't have much time to get them ready, and it was not a very pleasant task for us; but we will have them all saved for them when they come back to see us. Please write, and tell me who takes care of them, and whether they go to school or not. Tell the little orphans that I would like to come and stay with them, but that is impossible. With this I close, hoping to hear from you soon. With great respect, H. C. Ackley." The witness also admitted that he had written a letter to Pearl Burchard, the daughter of respondent, in August, 1893, about the children. The letter was as follows: "Ellensburg, Wash. Aug. 22, 1893. Miss Pearl Burchard, Ainsley, Wash.:-Please allow me to introduce myself as H. C. Ackley, your stepmother's husband. Of course, you know very well why I ask to correspond with you. We would like to hear from little darling babies, and I most sincerely believe you will write to me in regard to them. Now, Pearl, neither Alice or her mother know that I have written to you, and if you wish I will not let them know anything about it. If you will kindly answer this, I will write more the next time. If we ever become acquainted, you will find me a true friend to all who treat me as such. So please answer this little note, and oblige, yours, very respectfully, H. C. Ackley." It will be observed that the letter to Burchard does not indicate that the children are to return permanently to their mother, but is a request that they may come back on a visit, when he promised to have their clothes all in readiness for them; and the letter of August 22, 1893, directed to Miss Pearl Burchard, is written nearly two months after the time which the witness swears was the time at which the children were to be returned, viz. July 4, 1893; and not a word is said concerning their not having returned, or asking that they be returned. Considering the testimony as a whole, we are of the opinion that the stipulation provided for a modification of the judgment as contended for by the respondent, and without any reflection upon the character of the mother, for there is no proof in this case regarding her reputation one way or the other, but from the fact that she had a right to stipulate that the decree should be modified, and that we believe the testimony shows that such stipulation was executed, the fa ther was in the rightful possession of the chil dren; and, that being the case, the writ of

habeas corpus would not lie. The judginent of the court will therefore be affirmed.

and conditions: You to construct thereon, under my supervision and subject to my approval, a one-story brick building, con

(11 Wash. 120)

KREMER et al. v. WALTON et al. (Supreme Court of Washington.

MECHANICS' LIENS

Feb. 8, 1895.) - BUILDING ON LEASED LAND. Where a contract to lease provides that the lessee shall erect a building on the premises, the lessor agreeing to pay the costs thereof by permitting the lessee to retain the rents, the lessee erects the building as the agent of the lessor, so as to render mechanics' liens a charge on the interest of the lessor in the land.

Appeal from superior court, Yakima county; Carroll B. Graves, Judge.

Action by Scott Kremer and others against W. Walton and others to enforce mechanics' liens. From a judgment refusing to enforce the liens, plaintiffs and defendants Leander Smith and another appeal. Reversed.

Frank H. Rudkin, Jones & Newman, and Mackinnon & Murane, for appellants. Whitson & Parker and D. H. Carey, for respondents.

HOYT, C. J. This action was brought to foreclose the liens of certain mechanics and material men who had performed labor and furnished material in the erection of a certain brick building upon property which at the time belonged to J. M. Ashton. The work was done and materials furnished at the instance of one O. W. Johnson. His relations to the property and to Ashton, the owner, were evidenced by certain correspondence by mail and telegraph which had been had between him and said Ashton. In his testimony upon the trial, said Ashton made it appear that he had no knowledge of the fact that said Johnson had entered upon the erection of the building until after the labor and materials for which the liens were claimed had been furnished. Such testimony is conclusive, so far as the understanding of said Ashton was concerned, but can have little weight in determining the contract relations between him and said Johnson, for the reason that such relations must be determined by the construction of the correspondence above referred to, regardless of what may have been the intention of the owner. From such correspondence we are forced to the conclusion that said Johnson and those dealing with him had a right to assume that said Ashton had consented to the erection of the building by said Johnson, in pursuance of the terms of a letter written by said Ashton to said Johnson, which was in substantially the following form: "Dear Sir: Referring to our conversation here of this date, I am willing to make you a lease of my lot adjoining the premises now occupied by you at North Yakima upon the following terms

in addition thereto, the side nearest the depot to be at least twenty inches in thickness, the rear wall to be at least twelve inches, and the front wall to be at least twenty inches, said front wall to be built of or faced with pressed brick of first-class quality, so as to give the same a first-class and finished appearance, it being understood that the northeast wall, or that furthest away from the depot, shall be arranged by a party-wall contract between myself and the owner of the building you are now occupying. This contract shall be so as to give me the right to insert joist into said wall, and to make me owner of one-half of his wall for the entire height, so that, in the event of my wanting to add an additional story (which is the object of having the twenty-inch wall at the side and front of the building hereby contemplated), I will have the benefit by this party-wall contract of the wall of his second story when putting up the second story upon the building above mentioned. I would want the work to be first class in every particular, and well finished, but am willing that you should arrange the doors and windows at front and rear in such a way as to be of the utmost convenience to yourself. It is understood in this arrangement that the building which is to be constructed shall not exceed in value the sum of $1,500 when fully finished, ready for your fixtures and furnishings. I am further willing that the cost of this building, when paid by you, shall be repaid by me to you by applying your rental against the cost of the same upon the following basis, to wit: The rental to be $25 per month, payable in advance, during the first year, at the end of that time we to agree upon a proper rental for the following year; and, in the event of a disagreement, each to select a man; and, in the event of their disagreement, the two so selected to select a third, the decision of any two of the men selected to be binding upon us; their decision, in the case of our disagreement as aforesaid, to fix the next or second year, at the end of which time we are to fix the rental for the third year, and so on for the fourth year; our being unable to agree, the rental to be fixed by disinterested parties, to be selected as above mentioned. It is understood that you are to ascertain the cost of the building contemplated, and let me know without delay; also, time within which same can be completed, after which we are to enter into a permanent agreement and lease on the line above indicated. This letter to be ineffectual until such cost, etc., is arranged. Yours very truly, J. M. Ashton." Hence it is to such letter that we must look in determining the status existing between said Ashton and said Johnson; and it is a matter of no signifi

cance whether it be considered as in itself amounting to a lease of the premises, or as a contract for a lease, since the rights of a lien claimant would be the same whether the property had been actually leased upon certain conditions, or had been taken possession of by virtue of a contract for a lease with like conditions. In either case the relation of landlord and tenant would exist. It follows from these facts and from the decisions of this court that, if the building was to be erected by the lessee himself, his interest as such lessee would be all that could be subjected to liens for work and materials furnished for said building. See Z. C. Miles Co. v. Gordon, 8 Wash. 442, 36 Pac. 265. On the other hand, if, by the terms of the lease, the building was to be erected and paid for by the lessor, he would be the one who was erecting, even although the lessee was to have the direction and control of the erection. In our opinion, the terms and conditions of the lease were such that it must be held that the building was to be erected by the lessor. It is true that, by its terms, the building was to be erected and paid for by the lessee in the first instance; but the lessor was to repay to the lessee the cost thereof, and for this reason it must be held that he assumed the same responsibility that he would if he had let a contract to a stranger for the erection of the building, under conditions which required him to fully pay the cost thereof before having the right to demand any payment from the owner. The fact that the whole building was to be erected and paid for before any payments should be made by the owner would have no effect upon liens for labor and material furnished to the contractor. The responsibility of the owner would be the same as under an ordinary contract which provided for payment by the owner to the contractor from time to time as the work progressed.

It follows that if the terms of the contract between the lessor and the lessee had been that the lessee should erect the building, and upon its erection should be entitled to demand and receive of the lessor the cost of such erection, the interest of the lessor would be subject to liens growing out of the erection of the building; and the fact that, under the terms of this agreement, the money was to be paid by the lessor by the retention of rents by the lessee would not change the rights of the parties. Under the terms of the agreement, the cost of the building was to fall upon the lessor to the same extent, in the end, as it would have done had he been called upon to pay the entire cost of such erection when the building was finished. Under our construction of this contract of lease, it included an ågreement between the lessor and lessee that the latter should erect for the former the building in question, and that, for that reason, the interest of the lessor, as well as that of the lessee, was subject to liens

growing out of its erection. This seems to be the reasonable construction of the language of the agreement, and also consists with authority. See Otis v. Dodd, 90 N. Y. 336. The judgment will be reversed, and the cause remanded, with instructions to enter a decree subjecting the property to the liens, and ordering a sale thereof to satisfy the same.

ANDERS, DUNBAR, and GORDON, JJ.,

concur.

(11 Wash. 124)

CADY v. CASE et al.

(Supreme Court of Washington. Feb. 8, 1895.)

VERIFICATION OF PLEADING TENDER-JUDICIAL NOTICE.

1. Under Code Proc. § 203, providing that every pleading shall be verified by the party, his agent or attorney, to the effect that he believes it to be true, a verification, in the form: "C., being duly sworn, deposes and says he is the plaintiff above named; that he has read the foregoing complaint, and knows the contents thereof; that the statements therein contained are true, as he verily believes,"-is sufficient.

2. A tender of bank checks payable in 60 and 90 days is not a tender of payment.

3. The court will not take judicial notice of a custom requiring plaintiff, as an employé of defendant, to accept goods from defendant's store in payment of wages.

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

Action by W. T. Cady against Case, Huling & Co. to foreclose a lien on shingles, and for an injunction. From an order granting

a temporary injunction, defendants appeal. Affirmed.

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

DUNBAR, J. Plaintiff in the court below brought his action to foreclose a lien on shingles, and as a basis for injunctive relief pendente lite averred in his complaint that the debt was due, the financial irresponsibility and insolvency of the defendants, and that the only security for said claim was the lien upon said shingles, which defendants were threatening to and were about to remove and dispose of, thereby endangering plaintiff's security. Defendants appeared, and resisted the application by affidavits denying the allegations of the complaint; and the court, having considered the complaint and the counter affidavits thereto, granted a temporary injunction, from which order this appeal is prosecuted.

It was contended, in the first place, that the complaint was not sufficient in law to sustain a temporary injunction; second, that the verification was not sufficient; and, third, that, the material allegations of the complaint having been denied, a temporary injunction should not have issued. We think the complaint was amply sufficient to sustain an order for a temporary injunction, and we

do not think there is any force in the objection that the affidavit was not sufficient. There is no distinction made in law between the verification of this pleading and that of any other pleading in a case. The verification in this case is as follows: "W. T. Cady, being duly sworn, deposes and says he is the plaintiff above named; that he has read the foregoing complaint, and knows the contents thereof; that the statements therein contained are true, as he verily believes." Section 203 of the Code of Procedure provides that "every pleading shall be subscribed by a party or his attorney and, except a demurrer, shall also be verified by the party, his agent or attorney, to the effect that he believes it to be true." This pleading comes within the rule prescribed, and is, we think, amply sufficient. A more difficult question is presented concerning the answer of the defendants. The amount sued for, however, is not disputed in the answer; neither is the right to the lien upon the shingles denied nor disputed by the counter affidavits; and we think, under the circumstances of this particular case, that the judge below was justified in issuing the restraining order to preserve and make efficient the lien which rightly attached to the claim of respondent, and to prevent the destruction of such lien. So far as the payment of respondent's claims are concerned, it was no tender of payment to tender checks on the First National Bank of Montesano, or any other bank, due in 60 and 90 days. Neither will this court take notice of a custom, which is pleaded by the appellants here, to the effect that laborers in such cases are under obligations to and do take up a portion of their wages in goods furnished by appellants' store. When the work was completed, the respondent was entitled to receive his money therefor, and to receive it in the legal tender of the country. The debt in this case is not disputed. The appellants, according to their own affidavits, are able to pay, and all the damages which they claim would be imposed upon them by the issuance of this restraining order could be averted by the payment of this honest debt. The judgment will therefore be athrmed.

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

(11 Wash. 138)

KLOSTERMAN v. HARRINGTON et ux. (Supreme Court of Washington. Feb. 8,

1895.)

FRAUDULENT CONVEYANCES-COMMUNITY PROPERTY-CONSIDERATION.

Where execution on a judgment in favor of a creditor of the community estate of a husband and wife was returned unsatisfied, a deed to the wife of land formerly community property, made without consideration, and after the debt of such creditor accrued, will be set aside, and the land subjected to the satisfaction of

the judgment, in the absence of evidence of sufficient other property belonging to the community to satisfy the claim.

Appeal from superior court, Lewis county; W. W. Langhorne, Judge.

Action by John Klosterman, doing business as Klosterman & Co., against T. S. Harrington and wife, to set aside a deed. Judgment for plaintiff, and defendants appeal. Affirmed.

Herren & Hubbell, for appellants. Reynolds & Stewart, for respondent.

HOYT, C. J. This action was brought to set aside a deed made by the defendant T. S. Harrington, to his wife, Martha E. Harrington, the other defendant. This deed was made on the 16th day of October, 1891. It appears from the findings of fact that prior to said 16th day of October, 1891, the defendant T. S. Harrington was indebted to the plaintiff in the sum of $210; that an action was brought thereon against the said T. S. Harrington in 1892, and in 1893 judgment for such indebtedness and interest thereon was duly rendered; that thereafter execution was issued to the sheriff to collect the same, and was returned unsatisfied, for want of property out of which to make the money. It further appeared that such indebtedness was for goods used in the hotel business conducted by said T. S. Harrington and his wife, Martha E. Harrington. The superior court found that the conveyance was in fraud of the rights of the plaintiff as a creditor of the community, and made an order that the execution issued upon such judgment should be satisfied out of the property conveyed by such deed. From this de cree defendants have appealed, and urge here, as reasons for its reversal, the alleged facts that it was not made to appear that the indebtedness was incurred prior to the date of the execution of the deed, and that it was made to appear that the deed was not a voluntary one, but was made in payment of certain indebtedness of the community to the wife. It is also urged that it was shown that the defendant T. S. Harrington had other property out of which the execution could have been satisfied.

If we could consider the testimony which is set out in the statement of facts as the defendants do, some important questions of law would be presented for our consideration. But, whatever might have been shown by the statement of facts if settled in accordance with the contention of the defendants, the facts shown by the statement actually settled, which are all that we can consider, fail entirely to establish the defendants' contention. As we have before stated, it was found by the court that the indebtedness was incurred before the date of the deed, and such finding was supported by the direct testimony of the plaintiff, and in no manner contradicted by anything which appears in the statement of facts. It did ap

pear by such statement that the defendant T. S. Harrington testified that his wife had received certain moneys from a relative in Utah; that the same had been used by the community; and that the community had never repaid the amount. But it was not made to appear that, at the time the deed was executed, it was understood by both or even one of the parties thereto that it was to be in satisfaction of the indebtedness of the community to the wife. On the contrary, it appeared that it was made for an entirely different reason. It further appeared that no consideration passed at the time of its execution. We must therefore agree with the conclusion of the lower court that it was a voluntary conveyance, and could have no effect as against creditors who, at the time of its execution, had claim's against the community, unless there was sufficient property retained by the community to satisfy such claims. As to the amount of property retained by the community, the proofs fail to show that there was anything which could be reached to satisfy the judgment; and, in view of the fact that an execution had been issued and returned unsatisfied for want of property upon which to levy, it must be presumed, in the absence of express proof to the contrary, that the community had no property with which to satisfy the judgment. Under our statute, the conveyance by the husband to the wife had the effect of changing its community character to that of separate property of the wife. Hence it was necessary that the deed should be set aside in order that purchasers at a sale under an execution, which only bound community property, should be informed as to the state of the title.

The decree entered is somewhat unusual, but no objection on that account was raised In the court below, nor has it been suggested here; and as we find nothing therein, nor in the proceedings upon which it is founded, which could affect adversely the rights of the appellants, such decree will be in all things affirmed.

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

(11 Wash. 116)

STATE v. BLANCHARD. (Supreme Court of Washington. Feb. 8, 1895.)

LARCENY-DESCRIPTION OF MONEY STOLEN.

Under Code Proc. § 1253, providing that In an information for larceny of money it is sufficient to allege the larceny to be of money, without specifying the coin, number, denomination, or kind thereof, an information charging larceny of a certain number of dollars, "lawful money of the United States," is sufficient.

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

Prosecution by the state of Washington

against Nellie Blanchard for larceny. Judg ment for defendant, and the state appeals. Reversed.

John F. Miller, Pros. Atty., and A. G. McBride, for the State.

ANDERS, J. The information in this case charged that "she, the said Nellie Blanchard, in King county, state of Washington, on the 19th day of March, 1894, three hundred and ten (310) dollars, lawful money of the United States, the money and property of Robert De Lancy, unlawfully, willfully and feloniously did steal, take, and carry away.” To this charge a plea of not guilty was entered. The cause came on regularly for trial, and, after the jury was impaneled and sworn, counsel for the defendant moved the court for an order excluding all testimony, upon the grounds "that the information is not sufficiently specific, and does not state facts sufficient to constitute a cause of action." The motion was granted, and judgment entered conformably thereto, and the state, by its counsel, appealed.

Our statute provides that "in an indictment or information for larceny or embez zlement of money * * * it is sufficient to allege the larceny or embezzlement to be of money, without specifying the coin, number, denomination, or kind thereof." Code Proc. 1253. This statute, by its terms, renders a particular description unnecessary when the property alleged to have been stolen is money. But, of course, the thing stolen, whatever it may be, must be alleged to have some value, for otherwise it would not be a subject of larceny at all. And it is stated in the brief of counsel for the appellant that the learned trial judge held the information bad because, in his opinion, it did not allege the value of the $310 therein mentioned. If such was the fact, the court was in error. It seems plain to us that the words "lawful money of the United States" denote value, and that the designation of the denomination, as dollars, is itself a statement of value. If a lawful dollar is not of the value of a dollar, then we have no means whatever of determining the value of money. In our opinion, if the information had charged that the larceny was committed by stealing $310, of the value of $310, it would not have been any more specific and certain as to value than it was as filed, as the phrase "of the value of three hundred and ten dollars" would have been mere surplusage, expressive of nothing not already clearly stated. In the case of State v. King, 37 La. Ann. 91, where the charge was that the accused "feloniously did steal, take, and carry away certain money, to wit, the sum of ten dollars, of the goods and money of one John Losch," the court said: