five, without grace, for value received, we promise to pay to the order of J. A. Cloud, of New York, the sum of four hundred ($400.00) dollars, with interest thereon at the rate of 10 (10) per cent. per annum, payable semiannually on the first days of January and July in each year, according to the tenor and conditions of ten (10) interest notes of even date herewith and hereunto attached, both principal and interest payable only in United States gold coin, at any place J. A. Cloud directs, with New York Exchange. If any interest shall remain unpaid after due, this principal note and the interest coupons shall become mature, due, and payable at once, without further notice, at the option of the holder hereof. This note shall bear interest at the rate of four (4) per cent. per month after maturity, and, if suit or action shall be brought to collect principal or interest, we promise to pay a collection and attorney's fee, in said suit or action, which fees shall be taxed as the 'attorney's fee' in the judgment recovered; and we further agree to pay all taxes and assessments which may be levied or assessed to the holder of this note on account thereof. This note is given for an actual loan of the above amount, and is secured by a mortgage of even date herewith, which is a first lien on the property therein described. Dated at Sauk City, Skagit Co., Washington, this seventh day of August, A. D. 1890. All erasing and interlining done before signing. Jacob Rivord. [Seal.] Cles

her

tine Arquet X Rivord. [Seal.] Witnesses

mark.

at signing: Norman W. Smith. John Williams."

Attached to the note were 10 coupon interest notes, in the following form: "$20.00. Interest Note. No. 27. Mount Vernon, State of Washington, August 7, A. D. 1890. On the first day of [date of payment,] for value received, we promise to pay to the order of J. A. Cloud, without grace, twenty dollars in United States gold coin, at any place J. A. Cloud directs, with current rate of exchange on New York city, said amount being interest on a principal note of $400.00, of even date herewith. This note bears interest at the rate of four per cent. per month after maturity. Coupon No. Rivord. [Seal.]"

Jacob

The mortgage is in usual form, and includes this clause: "It is further agreed, that time shall be material, and the essence of this contract; that, if default be made in the payment of said note, or of any interest coupons, or any part thereof when due, in procuring insurance, paying taxes, or in keeping and performing all covenants herein contained, then said note and all of said interest coupons shall, at the option of the owner thereof, become at once due and collectible, without further notice, and suit may be commenced at once in foreclosure of this indenture, and said fees shall be paid by said first party,

if suit be settled before judgment. And, in case the note or coupons secured by this indenture shall not be paid when due, they shall draw interest at the rate of four (4) per cent. per month from maturity until paid."

Million & Houser, for appellant.

DUNBAR, C. J.

This is an action to foreclose a mortgage on real estate, which was given to secure a note for $400 given August. 7, 1890. The note was made payable on the 1st day of July, A. D. 1895, and bears interest at the rate of 10 per cent. per annum, with a provision that it shall bear interest at the rate of 4 per cent. per month after maturity. The interest is provided for in the shape of coupon notes of $20 each, attached to the principal note. Each coupon or interest note provides that it shall bear interest at the rate of 4 per cent. per month after maturity. The note also provides that, if any interest shall remain unpaid after due, the principal note and interest coupons shall become mature, due, and payable at once, without further notice, at the option of the holder. There is also a promise to pay an attorney's fee in case of suit or action to collect the principal or interest. The third coupon note was not paid at maturity, and plaintiff brought his action to foreclose, asking judgment for $579.20, which, if we understand the complaint, represents the face of the note and all the coupon notes not paid, together with interest on the same at the rate of 4 per cent. per month from date of filing the complaint, together with an attorney's fee of $50, and $17.07 taxes paid, (concerning which there is no dispute.) The court refused to allow the demand for an attorney's fee, and rendered judgment for $400, with interest on the same at the rate of 10 per cent. per annum from April 6, 1892, the date of the commencement of the action, and for $20, the amount of the coupon note due, with interest on the same at the rate of 4 per cent. per month from the time it became due; also for costs, including statutory attorney's fee. From this judgment the plaintiff appeals, and urges that he should have judgment for the coupon note not due, with interest on the face of the principal note at the rate of 4 per cent. per month from the date of the filing of the complaint, and for an attorney's fee of $50.

Inasmuch as the coupon notes not due simply represent the computed interest up to the time when the principal note would become matured by time, it is very evident that the consideration for such notes failed when judgment was obtained for the principal, and plaintiff would under no principle of law or ethics be allowed to recover both the use of the money and the money which represented its use, and the court very properly refused this demand.

So far as the contention of the appellant

is concerned, that, under the terms of the note, he should be allowed interest on $400 at the rate of 4 per cent. per month from the date of filing the complaint, we have to say that while it is true that the note provides that, if any interest shall remain unpaid after due, the principal note and interest coupons shall become matured, at the option of the holder, yet, construing all the provisions of this note together, we think that the provision, "This note shall bear interest at the rate of 4 per cent. per month after maturity," was inserted with reference to the maturity of the note first expressed, namely, the 1st day of July, 1895, the time when the money became due. This construction is strengthened by the fact that the interest up to that day is made definite and certain, and fully and separately provided for by the coupon interest notes attached; and the judgment of the court in respect to the interest was right. We think, however, that the language used in the note and mortgage, viz. "If suit or action shall be brought to collect principal or interest, we promise to pay a collection and attorney's fee in said suit or action, which fee shall be taxed as the attorney's fee in the judgment rendered," must be construed to be a promise to pay a reasonable attorney's fee; and, as the plaintiff alleged and proved that $50 was a reasonable attorney's fee in this case, he is entitled to a judgment for that amount. The cause will therefore be remanded to the lower court, with instructions to modify the judgment to the extent of allowing appellant the difference between the statutory attor ney's fee allowed by the court below and an attorney's fee of $50. The appellant will be entitled to his costs in this court.

1. In an action for breach of a contract of sale, whereby plaintiff agreed to convey and transfer to defendant, at a certain date and for a consideration named, certain described property, an allegation by plaintiff that he owned such property at the date of the contract is immaterial.

2. A contract giving one a license to occupy land for such time and in such manner as is required to remove the merchantable timber thereon, to build and operate a sawmill on the land, and to remove the sawmill after the manufacture of the timber, is not a conveyance of an interest in land, within the meaning of Gen. St. § 1422, requiring such conveyances to be by deed.

3. The fact that a contract for the sale of certain engines located at certain places, which the purchasers have seen and approved, describes them as of certain horse powers named, does not render the seller liable in damages if

they prove to have less than such named capac ities, such averment being treated as mere matter of description.

Appeal from superior court, Pierce county; F. Campbell, Judge.

Action by John W. Kleeb against Frank M. Bard and H. C. Patrick for breach of contract. From a judgment for plaintiff, defendants appeal. Modified.

Ira A. Town and W. W. Likens, for appellants. Govnor Teats and Parsons, Corell & Parsons, for respondent.

STILES, J. 1. The appellants now complain of the action of the superior court be cause of the manner in which it permitted the respondent to amend his complaint under the direction of this court in Bard v. Kleeb, 1 Wash. St. 370, 25 Pac. Rep. 467, and 27 Pac. Rep. 273. The new complaint showed that the property covered by the contract had been delivered to the appellants, and had been by them resold to third parties; that a tender of a conveyance, in writing, had been made to them; and that the sum unpaid under the contract had fallen due long before the date of the pleading. All of these matters could have been covered by the original complaint had the facts now stated been past events, and the respondent would have had his choice either to foreclose the lien agreed to be given to him through a mortgage, or to have his judgment generally against the appellants. The latter course is now forced upon him, since the appellants have put it out of their power to make the mortgage for which their contract called. Moreover, as was said in the former decision, all parties have from the beginning treated this as an action at law for money. and not as an equity case, and they are bound by their action.

2. A vast amount of the trouble in this case has grown out of the attempt of the appellants to bind the respondent to a conclusion of law unnecessarily stated in his complaint, viz. that at the date of his contract he was the owner and possessor of certain property, the subject of the contract. But even if taken as a statement of fact, rather than law, this allegation was not material. Respondent, on the 8th day of October, 1888, contracted that on the 20th day of that month he would convey and transfer certain property to the appellants, but it was nobody's concern but his own whether at that time he owned any part of it or not. If, when the time came for the performance of the agreement, he was able to perform, the appellants could not complain.

3. The next complaint is that the contract called for the title to the three parcels of standing timber mentioned, which was not forthcoming. Against this, the respondent contends that he was only to convey his right, title, and interest, whatever it was,substantially a quitclaim. The materiality

of this contention is that the owner of one tract (Perry) refused to permit the appellants to take any timber under the agreement made with respondent. The owner of the second tract (Guilliams) delivered a portion of the logs contracted for, and then refused to deliver any more, on the ground that his contract was a merely verbal one, which he could break at his pleasure; and the third tract (Morrill) fell 240 acres short. The contract clearly showed that the Perry and the Guilliams timber was not undertaken to be sold at all, but that, in substance, an assignment of the rights of the respondent under his agreements with the two landowners was to be made, for it was recited that these parcels of timber were to be "transferred according to the contract now existing between me and" the two owners, and the appellants bound themselves to carry out these contracts. As to the Morrill tract, the language of the contract was different, being. "All the cedar timber now on Sec. 27," without any qualification or reference to any other contract. Respondent's title to the cedar on 400 acres of section 27 is not, however, assailable, for at all times when he was required to have the title to that much of it he had it by deed of warranty, and no showing is made of any infirmity in this deed whereby no title passed. As to the Perry tract, conceding that an executory contract to sell standing timber to be cut and removed by the purchaser is a contract for the sale of an interest in land, and therefore within the statute of frauds, (1 Warv. Vend. p. 175; Owens v. Lewis, 46 Ind. 488,) still we are unable to see why the contract which respondent held from the Perrys did not meet this requirement. True, it was not a deed, but it is not necessary that a contract to sell land as such be a deed. The terms of this instrument showed that it was intended to be merely a license to occupy the land for such time and in such manner as should be required to remove the merchantable timber therefrom, with the right to take the timber at 50 cents per thousand feet, to build and operate a sawmill, to use the water privileges on the land in connection with the mill, and to remove the mill after the timber had been manufactured. Neither the land, nor any interest in the land as land, was contemplated; but the timber was the principal subject-matter of the contract, to which all the other uses to which the land might be put were incidents. Nothing in this contract created any exclusive right in the grantee to occupy the tract. On the contrary, both parties to it might have been exercising dominion over the whole of it at the same time, the Perrys in every way not inconsistent with the prosecution of the lumbering business by the respondent, and the latter in every way necessary to his business. These considerations, it seems to us, take such cases out of the purview of Gen. St. § 1422, which prescribes that conveyances of lands or interests therein

shall be by deed. Therefore, although, when the appellants proposed to go on with the Perry contract, they were forbidden to enter upon the land, or cut any timber, on the ground that their contract had expired or been forfeited, it remained that it had not expired or been forfeited, and they could have been compelled to execute it; so that appellants were not released from their agreement with respondent by any such acts of hostility. The Guilliams contract was an entirely different matter. That was an agree ment on Guilliams' part to cut down all the cedar timber on his land, and deliver the logs to respondent at his mill, at $4.50 per thousand feet. It was a merely verbal contract, but it respected the sale of chattels only, viz. logs; and, as a considerable portion of the contract to sell had already been performed, there was a full compliance with the statute of frauds in that instance. Owens v. Lewis, supra; Smith v. Surman, 9 Barn. & C. 561. When appellants took possession of the mill, Guilliams continued to deliver logs to them under his contract with respondent, and then refused further delivery, because his contract was merely a verbal one. He should have been required to go on, or respond in damages. But in neither the Perry nor the Guilliams case was respondent at fault. He sold and delivered the mills, and put the appellants in the same position with respect to his contracts with those men which he occupied. Appellants, without waiting to receive a conveyance in writing, (if one was necessary,) and without paying the cash agreed to be paid, took possession, and in every way put themselves in the wrong as far as a refusal to pay the price agreed upon was concerned; and, finally, they sold out the whole property at a large advance. Such property as they took they must pay for, all the troubles about tenders of payment on the one part, and of papers on the other, having been obviated by the acceptance of the property by the appellants, and their going into possession.

4. The contract called for two engines, one of which was described as a portable sawmill engine, of 18 horse power, and the sawmill, etc., situated at a certain place; and the other was a 40 horse power engine and boiler, etc., at another place. Appellants counterclaimed for damages, under the allegation that the engines were of only 10 and 18 horse power, respectively, and that the respondent had guarantied them to be of the larger horse power mentioned in the contract. They further alleged knowledge on the part of respondent that appellants were desiring to buy engines for certain work, which could not be done unless they had 18 and 40 horse power, respectively, and that he represented that they would do that work. Damages were laid at $2,500; but, upon the trial, there was an entire failure to prove any representations as to what work the engines were capable of. Much

testimony was introduced as to the horse power of each engine, and it was so contradictory that we have no right to review it, as the weight of it was entirely for the jury. The terms of the contract, however, show almost conclusively that the references to horse power there used were merely descriptive of the particular machines intended to be sold. Respondent was offering two certain engines, located at certain places, not two engines of 18 and 40 horse power generally. Appellants had seen the engines, and were content to buy them, and any warranty of their capacity must have been included in the contract, which was put in writing. The charge which the court gave to the effect that, if the engines were of less than the horse power mentioned in the contract, the measure of damages would be the difference between the value of these engines and such engines as the contract called for, was superfluous, because there was no evidence of any such value; but it did the appellants no injury, since their theory, viz. of a warranty to do certain work, was entirely unsupported, either in the way of representations or by covenant in the contract.

5. What has gone before leads to an affirmance of the judgment, but there is one point upon which there should be a reversal, unless there is a voluntary reduction by the respondent. We have held that the contract called for a sale of all of the timber on section 27, and that this item was partially fulfilled by the transfer or offer to transfer the Morrill tract, of 400 acres. But the 240 acres remaining in section 27 did not belong to respondent, nor did he have any contract in reference thereto. Appellants are therefore entitled to have a reduction from the purchase price, measured by the value of the timber found to have been upon the 240 acres. The court below charged the jury upon this point, but it would appear from the verdict, which was for the full sum demanded, that the charge was overlooked or disregarded. The undisputed proof was that there were 800,000 feet of timber on the 240 acres, and that it was worth 50 cents a thousand; wherefore appellants will be entitled to a reduction of $400 out of the judgment, with interest thereon at 8 per cent. per annum from October 20, 1888. And unless respondent shall within 30 days after the filing of this decision file his consent to such reduction, the judgment will be reversed, and a new trial granted; otherwise, the judgment, as modified, will be affirmed. The errors assigned in this case are in an appellate sense innumerable. Those we have noticed cover such of them as are material, by platoons. The others were mostly brought into the record through a wide departure from the actual issues involved.

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

(7 Wash. 48)

MCWILLIAMS v. CASCADE FIRE & MARINE INS. CO.

(Supreme Court of Washington. July 15, 1893.) FIRE INSURANCE-BREACH OF CONDITIONS-EFFECT -SEVERABILITY OF CONTRACT-FRAUD-INSTRUC

TIONS.

1. Where a fire insurance policy provides that it shall be void if the interest of the insured in the property "be other than unconditional and sole ownership," the fact that one of the insured articles is held merely under a contract of sale, with the title outstanding in the seller, invalidates the whole policy.

2. In an action on a fire insurance policy, in which defendant charged that the fire was intentionally caused by plaintiff, and, while bringing no direct evidence to that effect, showed various circumstances tending to prove it, it was error to refuse to charge "that fraud may be proved by circumstantial evidence, as well as positive proof," and that "when fraud is charged, as is done in this case, it may be inferred by strong presumptive circumstances."

3. It was also error to refuse a charge to the effect that fraudulent acts are generally concealed, and the direct proofs rest wholly in the breasts of the guilty parties; that the usual proofs of such acts are the facts and circumstances surrounding the transactions, which, in order to establish fraud in any case, must be such as will convince an ordinarily prudent person, and are not susceptible of any reasonable explanation consistent with the honesty of the person charged.

Appeal from superior court, King county; Richard Osborn, Judge.

Action by M. McWilliams against the Cascade Fire & Marine Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed.

Hughes, Hastings & Stedman, for appellant. Stratton, Lewis & Gilman, for respondent.

ANDERS, J. This is an action upon two fire insurance policies issued by the appellant to the respondent. By the first policy, the appellant, in consideration of $23.75 to it paid, insured, for a period of one year from and after May 6, 1891, certain described property, while contained in the saloon of the respondent in the town of Gilman, Wash., to an amount not exceeding $500, being $300 on her stock of wines, liquors, and cigars, and $200 on her bar and bar fixtures, pictures, tables, and chairs. By the terms of the second policy, the appellant, for the sum of $42.75, stipulated to insure, for the period of one year from and after May 18, 1891, certain other property of the respondent, while contained in the building where then located, to an amount not exceeding $900, apportioned and distributed as follows: $125 on her beds and bedding; $350 on her household and kitchen furniture, useful and ornamental; $125 on her carpets, rugs, and curtains; and $300 on her piano. On August 10, 1891, the property covered by both policies was totally de stroyed by fire. Proof of loss was made in due form, and within the time prescribed in the policies. Payment was subsequently

demanded and refused, whereupon this action was instituted.

In each of the policies sued on, it is stipulated that "this entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the in terest of the assured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss;" and also that "this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void

* * if the interest of the insured be other than unconditional and sole ownership." It was shown at the trial that the respondent was not the sole and unconditional owner of the piano covered by the policy mentioned in the second cause of action, but that the same was held under a contract of conditional sale, in the name of her daughter, Carrie McWilliams, which contract was in writing, and expressly stipulated that the title should not pass from the seller until full payment of the purchase price and interest should be made. The price to be paid for the piano was $325, of which the respondent had paid but about $120 at the time of the fire. The contract of sale also provided that the piano should be kept insured for a sum at least equal to the amount of the unpaid purchase price, for the benefit of the sellers, and that the purchaser should pay all loss or damage to said piano by reason of fire, or from any other cause, not exceeding the amount remaining unpaid. Under this state of facts, the appellant contends that it is not liable under the conditions of the policy, including the piano, either for the loss of the piano, or any other property covered by that policy, and that the court committed error in refusing to so instruct the jury. On the other hand, the learned counsel for the respondent insist (1) that inasmuch as the respondent had an insurable interest in the piano, and was bound to pay the entire purchase price according to the terms of the contract of purchase, even although it was destroyed before the payment was completed, the contract of insurance was not violated, and she is entitled to recover the entire amount of the insurance; and (2), that, even if the respondent's interest in the piano was not such as to satisfy the condition set forth in the policy, yet the entire policy was not rendered void for that reason, but only that portion thereof concerning the piano, and that the respondent was entitled to recover for the remainder of the property destroyed. We entertain no doubt that the respondent had an insurable interest in the piano, but the question is, was her interest the interest which the company insured? Her right of recovery must,

of course, depend upon the terms of the contract as set forth in the policy, for it was upon those terms only that the appellant undertook to insure her against loss. The respondent has asserted the validity of the contract by suing upon it, and therefore its effect is the only question for consideration; and if the conditions contained in the policy, when fairly construed, preclude a recovery thereon, then the respondent can have no just cause of complaint. Upon the question whether an insurance policy, such as the one now before us, is an entire or a severable contract, there is a marked conflict in the authorities, many of them holding that such a policy is a joint and inseparable insurance of the whole property therein mentioned, while many others hold that such a policy is a several insurance of each item or class of property therein named, and may be valid as to a portion of the property mentioned, though void as to the residue. Many cases have been cited by the respective counsel sustaining each of these views, but we will not now undertake to review them in detail. They are nearly all referred to in Insurance Co. v. Pickel, 119 Ind. 155, 21 N. E. Rep. 546, in which case the court deduced the rule from the authorities cited that, where the property is so situated that the risk on one item cannot be affected without affecting the risk on the other items, the policy should be regarded as entire and indivisible; but where the property is so situated that the risk on each item is separate and distinct from the others, so that what affects the risk on one item does not affect the risk on the others, the policy should be regarded as severable and divisible. If it be conceded that it is possible to formulate a rule on this subject by which all cases should be governed, the one there enunciated is perhaps as nearly correct and just as any that could be suggested, and, if applied to the case in hand, will necessarily lead us to the conclusion that the policy now under consideration is entire and indivisible, and, being void as to the piano, is void altogether. The property covered by this policy was all situated in the same building, and therefore all subject to the same risk, and whatever affected the risk on one item or class affected the risk upon the others also. But we think the contract in this case was entire for another and more cogent reason than the one above set forth, namely, that its language is susceptible of no other reasonable construction. It was plainly provided therein that the entire policy should be void if the interest of the assured in the property was other than sole and unconditional ownership. It was the sole and unconditional interest in the property that the appellant undertook, for a stipulated compensation, to insure, not any interest therein that the respondent might have. Her interest, as we. have said, was an insurable one, but it was