DENY LEGALITY-POWERS OF OFFICERS. Plaintiff sold stock in a railway corporation to the company itself, through its president and its secretary, who paid therefor in cash and in notes issued by them for the company. Subsequently defendant purchased the company's property, including the stock so bought, and assumed its debts, and, though the transaction with plaintiff fully appeared on the books, it never questioned the validity thereof for over two years. Held that, in an action on the notes, defendant was estopped to deny the authority of the officers to issue them, or to allege that the transaction was illegal, because of a corporation's inability to buy its own stock.

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

Action by Mary M. Miller against the Washington Southern Railway Company and others upon promissory notes. Judgment for plaintiff, and said company appeals. Affirmed.

James Kiefer, for appellant. Will H. Thompson, E. P. Edsen, and John E. Humphries, for respondent.

SCOTT, J. This action was brought by the respondent to recover on two promissory notes, for $5,000 each, purporting to have been executed by the Satsop Railroad Company on the 10th of November, 1890, by J. R. McDonald and A. H. Anderson, president and secretary of said company, each of whom also indorsed said notes in a personal capacity. The Satsop Railroad Company was a corporation organized under the laws of this state, and was engaged in the construction and operation of a railroad. The plaintiff was the holder of 250 shares, of $100 each, of the capital stock of said railroad company, and on the date aforesaid sold said stock to said corporation, acting by its president and secretary aforesaid, for the sum of $18,000, $8,000 of which was paid in cash, and the notes in question given for the balance. After the transfer of said stock and the execution of the notes, the Satsop Railroad Company sold all its property to the defendv.39p.no.6-43

ant the Washington Southern Railway Company, which latter corporation assumed the payment of all the debts of the said Satsop Railroad Company. Judgment was rendered in favor of the plaintiff, and the Washington Southern Railway Company appeals.

The questions raised are practically resolved into two. It is urged that the president and secretary of said corporation had no authority to execute or issue the notes in question; and it is further urged that the notes were without consideration, on the ground that the corporation could not become a purchaser of its own capital stock. In support of the first proposition, it is urged that this case is governed by Elwell v. Railroad Co., 7 Wash. 487, 35 Pac. 376, and it may be doubtful whether there is any distinguishing feature in this case sufficient to except it from the one cited. It does appear, however, that said sum of $8,000 in money had been paid to the plaintiff upon the transfer of the stock, which was prior to the purchase of the property of the Satsop Railroad Company by the Washington Southern Railway Company; and it further appears that for something more than two years after the transaction aforesaid, which was shown by the books of the company, no one questioned the validity of said proceedings. If these facts are not sufficient to except it from the rule laid down in Elwell v. Railroad Co., supra, then it is, at least, questionable whether the decision in that case does not conflict with several former decisions of this court, hereinafter mentioned, which we prefer to follow if there is conflict. We are of the opinion that the doctrines announced in the cases of Duggan v. Boom Co., 6 Wash. 593, 34 Pac. 157; Carrigan v. Improvement Co., 6 Wash. 590, 34 Pac. 148; Tootle v. Bank, 6 Wash. 181, 33 Pac. 345; and Seal v. Investment Co., 5 Wash. 422, 32 Pac. 214,--require an affirmance of this case. Appellant, having purchased all the property of the Satsop Railroad Company, which included the stock purchased by said last company of the respondent, with full knowledge of the transaction, cannot raise the objection that the officers of the Satsop Railroad Company acted beyond the scope of their authority in the issuance of the notes. The Satsop Railroad Company never questioned the purchase of said stock, the payment of the $8,000, nor the execution of the notes, but, in effect, ratified the same by the sale aforesaid to appellant. Nor are we required in this case to decide whether or not a corporation can purchase its own stock, as appellant is likewise, upon the grounds aforesaid, estopped from raising that question. Affirmed.

DUNBAR, ANDERS, and GORDON, JJ., concur. HOYT, C. J., concurs in the result.

1. A description of property as a certain brick building, situated on certain lots in block 670 of the E. Co.'s addition to the city of E., which building is known as the "S. Building,' and fronts on H. avenue, in said city, and giving its dimensions, sufficiently describes the property, though it is not in such addition.

2. As against the owner of the property, a lien notice sufficiently alleges its ownership though it erroneously states that the equitable title only is in him, and the legal title is in another.

3. A notice of lien which alleges that two persons to whom the lienor furnished materials were the contractors for the construction of the building is sufficient, though on the trial it appears that one of them was the contractor, and that the other was his subcontractor; it also ap pearing that both told plaintiff that they were the contractors.

Hoyt, C. J., dissenting.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by James McHugh against Charles G. Slack, T. L. Grant, and others. From a judgment for plaintiff, defendant Slack appeals. Affirmed.

Crowley, Sullivan & Grosscup, for appellant. Delaney & Gamel, for respondent.

ANDERS, J. This is an appeal by the defendant Slack from a judgment and decree of the superior court of Snohomish county foreclosing a mechanic's lien on lots 14, 15, 16, and 17 in block 670 in the city of Everett. Several objections to the sufficiency of the plaintiff's claim of lien as introduced in evidence were interposed by the appellant in the court below, and the same are relied upon here as grounds for the reversal of the judgment. The statute under which this lien is claimed provides that every person claiming a lien must file with the county auditor of the county in which such property, or some part thereof, is situated, a claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the terms and conditions of his contract, if any, and also a description of the property to be charged with the lien sufficient for identification. 1 Hill's Code, § 1667. The property sought to be charged with the lien in this instance is described in the lien notice as "that certain two-story brick building, situated on lots numbered 14, 15, 16, and 17 in block 670 of the Everett Land Company's addition to the city of Everett, Snohomish county, Washington, aforesaid, which building is known as the 'Slack Building,' and fronts on Hewitt avenue, in said city, and is about 120 feet front, and extending back from said

avenue 80 feet in depth"; and the lien is claimed upon the land thus described, as well as the building situated thereon. It appears from the evidence that there is no such plat or addition to Everett as the Everett Land Company's addition, but the evidence discloses that the land company, on December 21, 1891, filed for record in the auditor's office a plat of the "Everett Land Company's First Addition to Everett." The appellant, however, never erected any building in that addition, and there is no such property therein as that described in respondent's notice of lien, there being no block No. 670 and no such street as Hewitt avenue noted on said plat. The evidence further discloses that on February 6, 1892, the said land company and W. J. Rucker and Bethel J. Rucker filed for record a duly-acknowledged plat, designated as a "Plat of Everett." On this latter plat, and nowhere else in the city, we find Hewitt avenue and block 670, containing lots numbered as those set forth in the notice of lien; and it is admitted that a two-story brick building belonging to and constructed by the appellant, of the dimensions indicated in the notice of lien, is situated on said lots and block.

A mechanic's lien is purely a creature of the statute, and can be maintained only by a substantial compliance with all of the statutory requirements. Phil. Mech. Liens (3d Ed.) § 345. A lien claimant is required to record his claim for the purpose of giving notice to all persons interested, or who may become interested, in the property to be affected by the lien, of the amount of his claim, and of all the facts upon which it is based. And whatever facts are required by the statute to be stated in the lien notice must be stated; otherwise the notice is wholly ineffectual, and no lien is thereby created or preserved.

The particular objections to the claim of lien urged by the appellant are (1) that it does not describe any property owned by the defendant Slack with sufficient certainty for identification; (2) that it does not state the name of the owner or reputed owner; (3) that it does not state the name of the person by whom the plaintiff was employed, and does not state the name of the contractor and subcontractors, showing the contractual relations between the defendant Slack and the plaintiff; and (4) that it does not state the terms and conditions of the contract under which the plaintiff performed labor and furnished material.

The statute does not require a precise and minute description of the property against which a lien is claimed to be set forth in the recorded claim or notice of lien. All that is required is a description sufficient for identification, and it matters not what particular words are used if the property is thereby identified with reasonable certainty. Any description that identifies is sufficient, though not accurate. Phil. Mech. Liens (3d Ed.) §

379. If, by rejecting what is false in a description, enough remains to identify the property attempted to be described, the description is sufficient under the statute; and, that being so, if by rejecting the words "of the Everett Land Company's addition to the city of Everett," contained in the description under consideration, the remaining portion is sufficient to identify the property, the description is not insufficient. Disregarding these words, we have the statement that the property upon which the lien is claimed is a certain two-story brick building, situated on lots numbered 14, 15, 16, and 17 in block numbered 670, which building is known as the "Slack Building," and fronts on Hewitt avenue, in said city, and is about 120 feet front, and extends back from said avenue 80 feet in depth; and we think such description amply sufficient to identify the property. As we have said, there is but one block 670, but one street known as Hewitt avenue, and but one such building as that described in the notice owned or constructed by the appellant, in the said city of Everett. It is said by Jones, in his recent work on Liens, that the land may be described by buildings or structures covering the land if it is sought to subject only the land so covered to the lien, and the buildings are such in character, or are so described, as to be readily identified. 2 Jones, Liens (2d Ed.) § 1421. And, accordingly, in Brown v. Coke Co., 16 Wis. 578, a description in a petition was held sufficient which designated the property as "the several buildings known as the gas works of the La Crosse City Gaslight & Coke Company, situated on lots numbered 8, 9," etc., “in block 14," although there was a mistake in giving the description of the lots upon which the buildings were situated by numbers and blocks. There the well-known principle was applied that the addition of a false circumstance to a description otherwise sufficient will not invalidate it. In Scholes v. Hughes, 77 Tex. 482, 14 S. W. 148, the property was described as a "brick city hall" in a town named, and it was held that the description was sufficient. And in Strawn v. Cogswell, 28 Ill. 457, a description, which was held sufficient, simply designated the property as a "mill belonging to the party of the second part," named in a contract. According to these authorities and others that might be cited, there can be but little doubt as to the sufficiency of the description in the lien notice in question. In fact, we have seen no case in which a lien notice was held insufficient where the property was therein described with as great a degree of certainty as it is in this instance.

Is the ownership of the premises sufficiently stated in the claim of lien? is the next question to be determined. It is alleged therein that "prior to April 20, 1892, one Charles G. Slack was, and also at all the times hereinafter stated was, and now is, the equitable owner, and the Everett Land Company at all

of said times was, and now is, the legal owner, of said lots hereinbefore mentioned and described, and that the said C. G. Slack is also now owner of said Slack building, situated on said lots, and who caused the same to be erected." It appeared at the trial that the land company had no interest in these premises at the time of filing the lien claim or afterwards, and that the appellant was and ever since has been the owner thereof in fee. The lien notice would have satisfied the statute if it had stated simply that Mr. Slack was the owner or reputed owner of the premises; and should the fact that he owned a greater interest in the land than that set out in the notice, or the further fact that the land company owned no interest, invalidate the lien? Under the circumstances. we think not. There are no interested subsequent purchasers or incumbrancers in this case, and, or course, the real owner could not have been misled or injured by the statement that he was the equitable owner only. The action was dismissed, as we understand it, as to the Everett Land Company before trial, and therefore it was not injured or misled by the notice; nor do we think that any other party would have been misled by the statement of ownership in the notice of lien, as there was sufficient therein to enable all persons, by proper inquiry and investigation, to ascertain the real facts of the case.

We are also of the opinion that the lien notice sufficiently states the name of the person by whom the claimant was employed, as well as the name of the contractor or the owner of the building. The notice states that some time prior to the 20th day of April, 1892, Mr. Slack entered into a contract with T. L. Grant and John Callaghan for the erection and construction of said Slack building, on the lots hereinbefore mentioned and described, by which contract it was agreed that the said Grant and Callaghan were to erect and fully complete and finish said building, for which the said Charles G. Slack agreed to pay a certain stipulated price mentioned in said contract; that under and by virtue of said contract, and in furtherance thereof, the said Grant and Callaghan, as contractors for the erection of the said building, on or about the 20th day of April, 1892, entered into a contract with this claimant, James McHugh, wherein and whereby this claimant promised and agreed to furnish the materials and do the stonework therein specified. It appears, however, from the evidence, that T. L. Grant, and not Grant and Callaghan, entered into a written contract with the appellant, Slack, for the construction of a brick building upon the lots heretofore described in block 670 on the plat of Everett, and that the said Grant sublet the stonework of said building to said John Callaghan, by whom the respondent was subsequently employed to do the same. But, according to the testimony of the plaintiff at the trial, he was told by both Callaghan and Grant that they were the con

tractors for the erection of the building; and, under these circumstances, we are of the opinion that the fact that Callaghan was not such contractor ought not to defeat the lien. It is said by Phillips (Mech. Liens, § 345) that the fact that a notice of lien named A. as a person against whom the claim was made as a contractor, while in fact A. and B. were the contractors, will not necessarily vitiate it. And, applying the same principle to the lien notice under consideration, it must be held to sufficiently state the name of the person by whom the claimant was employed.

The objection that the lien notice does not state the terms and conditions of the contract under which the plaintiff performed iabor and furnished material is not tenable. In our opinion, the conditions and terms of the contract are fairly specified in the claim of lien.

Lastly, it is claimed that the evidence fails to support the allegations of the complaint, as well as those of the lien, and that the evidence is too indefinite to justify the finding of the court below that there is any amount due the plaintiff and respondent. While the evidence is not very full and explicit in some respects, we think, as a whole, it is sufficient to justify the finding of the court, and the judgment will not therefore be disturbed on the ground of insufficiency of the evidence. The judgment is affirmed.

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

(11 Wash. 292)

KEEFE et al. v. CHAFFEE. (Supreme Court of Washington.

March 1,

1895.) CONTRACT BY CORRESPONDENCE-OFFER AND ACCEPTANCE SALE OF MERCHANDISE.

Plaintiff, a shingle manufacturer, wrote defendant that it desired to contract for the sale of the entire output of its mills, and defendant replied, stating that he could use a certain amount of shingles at a certain price. Plaintiff then wired, accepting defendant's "terms," and requesting orders. Defendant, before any shipment was made, wired plaintiff to ship 5 car loads, stating that he had written. The letter acknowledged receipt of plaintiff's telegram, and repeated the orders, and also stated that defendant would take 100 cars at the price named. Plaintiff, after receipt of the telegram and letter, shipped the 5 cars as directed, and later wrote, acknowledging receipt of the last letter, and stating that it had 20 cars which it would be ready to ship as soon as it could get cars. Held, that the correspondence did not show a contract for the 100 cars.

Appeal from superior court, King county; R. A. Ballinger, Judge.

Action by A. M. Keefe and others against C. L. Chaffee. There was a judgment for plaintiffs, and defendant appeals. Affirmed. Wiley & Bostwick, for appellant. Allen & Powell, for respondents.

DUNBAR, J. This is an action by respondents to recover from the appellant the sum

of $1,035.50 for shingles alleged to have been sold and delivered to appellant. The appel. lant pleaded a counterclaim for damages for breach of contract in the sale of shingles. claiming to have purchased the output of the mill from respondents to the amount of 100 car loads. The court held the contract not to be one for the sale of 100 car loads of shingles, and instructed the jury to find for the respondents. Motion for a new trial was filed and denied, and judgment rendered in favor of respondents. From such judgment this appeal is prosecuted.

The respondents were doing business, in November, 1893, in Machias, Wash., and were engaged in the manufacture and sale of shingles. An order was sent to them from Mitchell, Lewis & Staver Company for a car load of shingles to be shipped to appellant at Omaha, Neb. The respondents filled the order, and at the same time sent a letter to the appellant, which, among other things, stated that they would like to contract their shingles with some one who would take all the cut, which would be four cars per week. This letter was dated November 13, 1893. The appellant answered as follows: "Messrs. Perkins & Co., Machias, Wash.-Gentlemen: Yours of the 13th received. I can use the following at annexed prices and weights, based on not to exceed 55 cents rate to Omaha. [Then follow the prices and description of the shingles.] * Shingles to be shipped to my address as ordered, and all invoices to be sent direct to me at Omaha. I have recently purchased 25 cars at even a less price than above. Yours, truly, C. L. Chaffee." Prior to the shipment of any shingles except the car shipped on the order of Mitchell, Lewis & Staver Company, Perkins & Co. received from the appellant, through the mail, a letter containing the following: "Your telegram of the 24th, in answer to ours of the 18th, received. We wired you to-day to ship five cars Extra Star A Star, 6 to 2. We will take 100 cars of shingles as per our prices of the 18th. Shingles to be ordered as wanted by us, and you are to ship as ordered." Subsequent to this the respondents telegraphed: "We accept terms. Wire orders." In answer, Perkins & Co. received from appellant the following telegram: “Omaha, Nebraska, Nov. 25, 1893. To Perkins & Co.: Ship five cars Extra Star A Star, six to two inch. Have written." It is in testimony that both the telegram and letter above referred to were in the possession of Perkins & Co. at the time the five car loads of shingles sued for in plaintiffs' complaint were shipped, to wit, December 4, 5, 6, 7, and 11, 1893. Afterwards Perkins & Co. wrote to the appellant, among other things, as follows: "Yours of the 25th at hand. In reply, will say we have 20 cars of

6 to 2 on hand, and will be ready to ship them as fast as we get the cars." On December 5th, Perkins & Co. wrote to appel.

lant as follows: "We may not be able to ship after January 1st, 1894, as all mills have combined, and no one will be allowed to ship at these figures. We have about ten cars we would like to ship before the first. If you have any orders to fill, please advise us." The record shows that after this communication the appellant wrote to the respondents, claiming that he had a contract with them for 100 car loads of shingles at the prices specified in his letters, and demanded that the respondents comply with the contract. The respondents answered, denying that they had a contract for any more shingles than they had shipped. This was substantially the testimony in the case, and upon such testimony the appellant asked the court to instruct the jury as follows: "You are instructed by the court that the correspondence introduced in evidence between the parties is, in legal effect, a contract on the part of the plaintiffs to sell to the defendant the output of their shingle mill to the amount of one hundred cars, at the prices named, as ordered by the defendant, and to be shipped as ordered." The court refused to give the instruction, and the defendant excepted at the time.

Thereupon

the court, of its own motion, charged the jury as follows: "Now, I charge you as a matter of law that the contract set out in the affirmative defense in this action has not been established; that is, the evidence fails to show a contract upon the part of the defendant with the plaintiffs for one hundred cars of shingles as alleged,"-to the giving of which instruction the defendant at the time excepted, and he alleges the same as error here. The record, however, discloses the fact that the appellant consented that the court should instruct the jury as to the legal effect of the evidence. He does not question here that the court had no right to instruct the jury upon the evidence as a question of law, but insists that, as a law proposition, the evidence showed that the contract was made out. There are no legal questions involved in this case. It is simply the construction of a contract as shown by the testimony which we have substantially set out, and we are unable to base any particular argument upon it. But, in our judgment, the court reached the proper conclusion. As we think, the correspondence shows that there never was any agreement made that the respondents were to furnish the appellant 100 car loads of shingles, or any other number of car loads than the actual number furnished, at the prices proposed by the appellant. We do not think that, if the appellant had refused to take the shingles, the testimony is sufficiently conclusive to warrant the respondents in compelling him to accept them, or to enforce the specific performance of the contract; and, on the other hand, we do not think it was so conclusively established as to warrant the recovery of damages by the appel

lant for the failure of the respondents to furnish them according to his order. The judgment will therefore be affirmed.

HOYT, C. J., and ANDERS and GORDON, JJ., concur. SCOTT, J., concurs in the result.

(11 Wash. 390)

WEBSTER et al. v. THORNDYKE et al. (Supreme Court of Washington. March 9, 1895.)

REVIEW ON APPEAL-FINDINGS IN EQUITY CASES -SEPARATE PROPERTY OF WIFE-CONSTRUCTION OF WILL-POWER OF SALE.

1. Under the act of 1893, a finding by the trial court in an equity case will not be disturb ed if reasonably supported by the evidence.

2. Land purchased by a wife in her own name and with her own money is presumed, in the absence of other evidence, to be her separate property.

3. Testatrix gave to her husband the use of certain lots "until such time as is deemed by my executors and all interested in the sale of said lots, to sell said lands, together" with certain other lots, and directed the executors, "out of the moneys arising from such sale," to invest a certain amount, and pay the income to the husband for life, to divide the "residue of the money arising from such sale" among her children, and, after the death of her husband, to divide the money, the income of which she had given to her husband, among her grandchildren. Held, that the executors took the legal title to the land, with power to sell it.

Appeal from superior court, King county; A. W. Hastie, Judge pro tem.

Suit by David H. Webster against Mary E.

Thorndyke and others for the construction of

a will, and to determine the ownership of certain lots. From the judgment, David H. Webster and others appeal. Affirmed.

Blaine & De Vries, for appellants Webster and Bogart. Battle & Shipley, for appellant Adams. M. Gilliam, for respondent Eddie M. Webster. Carr & Preston and W. R. Bell, for other respondents.

HOYT, C. J. John Webster and Phoebe Ann Webster were husband and wife. They resided for a long time prior to their death in the county of King. During a portion of the time they lived upon a farm in the White River valley. While living there, the lots, the title to which is in controversy, were purchased, and deeded to the said Phoebe Ann Webster. At the time of her death, she made a will in which she sought to dispose of said lots as her separate property, and whether or not she had a right so to do is one of the principal questions presented on this appeal. It was claimed on the part of the respondents that the money with which these lots were purchased was that of Phoebe Ann Webster, and that the deed was taken in her name on account of the purchase price having been paid by her and the purchase made in her interest. On the other hand, it was contended that the money belonged to said Phoebe Ann Webster and her husband, John