from liability. At the time the money was paid, this garnishment proceeding was resting, and had been for some considerable time, upon the issue formed upon the denial by the company of any indebtedness to F. W. Ward, and was thereafter brought to trial upon the amended pleadings setting up in substance the foregoing matters; and the court found that the payment had been made in disregard of said garnishment, and was not a defense, and could not have found otherwise under the law as applicable to the undisputed facts.

Some claim is also made that the plaintiff herein had not sufficiently traversed the original answer of appellant, wherein it had denied any indebtedness, but no particular defect is pointed out; and, as new pleadings were filed, upon which the matter was tried, this contention is without merit. Affirmed.

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

(14 Wash. 643)

CARSTENS et al. v. STETSON & POST MILL CO.

(Supreme Court of Washington. June 8, 1896.)

EVIDENCE-TRIAL-INSTRUCTIONS.

1. Plaintiff cannot complain of admission of evidence of a more satisfactory nature to establish facts to prove which he had already introduced proofs.

2. The giving of an instruction not strictly applicable to the material questions to be determined is not ground for reversal, where it appears the jury could not have been misled thereby.

3. It is not error to refuse instructions which correctly state the law applicable to the questions to be determined, where similar instructions have already been given.

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

Action by Henry Carstens and another, co-partners as Carstens & Baker, against the Stetson & Post Mill Company. There was a judgment for defendant, and plaintiffs appeal. Affirmed.

Kiefer & Balliet, for appellants. John Wiley, for respondent.

HOYT, C. J. The plaintiffs alleged in their complaint that they had purchased of the defendant two car loads of cedar and spruce siding to be sold in the Eastern market; that such purchase had been according to grade; that much of the siding did not come up to the grade for which it was sold; that, on account of much of the lumber falling below the grade in which it had been classed by the terms of the sale, they had been greatly damaged. Defendant, by its answer, put in issue the material allegations of the complaint, and sought to recover, by way of counterclaim, the balance claimed to be due upon the purchase price of the lumber. Up

on this counterclaim no question of fact or law was raised in the court below, and nothing need be said in reference to it here. The jury found in favor of the defendant upon the issues raised upon the plaintiffs' complaint, and appellants seek to reverse the judgment rendered upon such verdict for two reasons: First, the alleged error of the court in admitting in evidence certain stencil plates used in marking the lumber; and, second, for the giving of erroneous instructions to the jury, and the refusing to give proper instructions requested by the plaintiffs.

As to the first: At the time these stencil plates were offered in evidence by the defendant, testimony had been introduced by the plaintiffs as to the marking of this lumber, and the plates themselves were only evidence of a more satisfactory nature tending to establish facts as to which the plaintiffs had introduced proofs; and for that reason, if for no other, the court committed no error in allowing the plates to be put in evidence.

Under the assignment of error growing out of the action of the court in instructing and refusing to instruct the jury, there are several specifications; but no good purpose will be subserved by discussing each of them separately. There were but two principal facts which the jury were called upon to decide. One was as to whether or not there had been such inspection, or opportunity to inspect, the lumber purchased by the plaintiffs, as to excuse the defendant from any responsibility as to its grades. The other was as to the grades of which the defendant represented the lumber to consist, and as to whether or not it came up to the grades into which it was classed at the time it was sold. The only fault found with the instruction of the court relating to the first question was that it applied generally to the lumber embraced in both car loads, and it was claimed that this was error, for the reason that there was no evidence tending to show that there had been an inspection, or opportunity to inspect, more than one of them. But, from an examination of the transcript, we are unable to see that there was evidence upon that question tending to show an inspection, or opportunity to inspect, one car load, which did not equally apply to the other. Upon the other question, the evidence (excluding that which went exclusively to the question of damages) was material only as it tended to prove or disprove the allegation of the plaintiffs that the lumber was not up to the grades for which it was sold; hence the plaintiffs were not injured if the jury were given instructions under which they could correctly determine the question which such evidence tended to prove or disprove. A careful examination of the instructions satisfies us that correct principles were laid down for the determination of the question involved, and that the jury could not have been misled as to its determination, by the instructions, if

any, which were not strictly applicable to the material questions to be determined. It follows that the assignment of error founded upon the instructions given to the jury is without merit, and, for the reason that such instructions embodied all the law necessary for the determination of the material facts in the case, it was not error to refuse the instructions requested by the plaintiffs, even if they correctly stated the law applicable to the questions to be decided by the jury. No theory can be advanced upon which the jury could have come to the conclusion they did except that they believed the testimony offered on the part of the defendant as to the grades under which the lumber was sold, and discredited that of the plaintiffs upon the same subject; and the instructions having been such that thereunder they could intelligently pass upon the questions involved in the determination of the effect of the evidence upon that question, offered by the respective parties, the plaintiffs were not injured, even if some of the instructions which were given might have misled the jury under a different state of facts.

We are not satisfied that any error was committed by the trial court, and, if there was technical error, we are satisfied that it was not such as prejudiced the rights of the plaintiffs. Judgment affirmed.

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

(14 Wash. 657)

FARES v. GLEASON. (Supreme Court of Washington. June 9, 1896.)

EQUITY RESCISSION-COSTS.

To entitle plaintiff to costs in a suit to set aside a conveyance by him for fraud on the part of the vendee, he must show that prior to the commencement of the suit he tendered, and kept good the tender of, all the money paid by the grantee, with interest.

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

Action by James Fares against James P. Gleason. There was a decree for plaintiff, and defendant appeals. Reversed in part.

William Martin, for appellant. Alex R. Jones, for respondent.

SCOTT, J. Plaintiff brought this action to set aside a deed executed by himself to the defendant, on the ground that he had received an inadequate consideration for the land thereby conveyed, and that said deed had been procured from him by reason of false and fraudulent representations. Judgment was rendered for the plaintiff, and defendant has appealed. The respondent moves to strike appellant's brief, and to affirm the judgment, on the grounds that the brief does not contain the findings of fact made by the lower court, and because no exceptions were taken thereto; but as it appears that appel

lant seeks to attack the decree on the ground that it is not supported by the facts found by the lower court, and is erroneous, and as the facts are sufficiently set forth in the brief for that purpose, the motion will be denied.

An objection was made to the entry of the decree on the specific ground now urged. The testimony was not brought here, and the findings of fact are not otherwise questioned than as, indicated. A demurrer was interposed to the complaint, however, upon the ground that it did not state facts sufficient to constitute a cause of action; but we are of the opinion that this objection is not well taken, and that enough facts were stated to constitute a cause of action, although they may not have been alleged with sufficient particularity. But the appellant's remedy, as against this, was a motion to make the complaint more definite and certain, and not by demurrer.

The main attack is based upon the eighth finding of fact, which is as follows: "That on or about the 2d day of February, 1895, and prior to the commencement of this action, the plaintiff, through his attorney at law, Alex R. Jones, offered to pay to the defendant all sums which the defendant had paid to the plaintiff by reason of said deed, if defendant would deliver up said deed and reconvey the property therein described to the plaintiff, but the defendant refused said offer." It appears that appellant had paid to the respondent the sum of $300, in part payment of the purchase price of said land. Respondent's complaint contained an allegation that appellant had paid him only the sum of $100 thereon, and that previous to the commencement of said action he had tendered said sum of $100 to the appellant, with interest, and, in addition thereto, offered to pay any and all other sums which may have been paid by appellant for taxes upon the property. The complaint contained no allegation that the tender of said amount had been kept good, and no allegation that the full amount paid by the appellant to the respondent had been tendered to him, and the court did not so find. At the most, the court found only that there had been a general offer upon the part of the respondent to pay the appellant all sums which the appellant had paid to the respondent to apply upon said purchase; and there was no finding that this tender, if it could be considered as such, had been kept good. A decree was rendered on the 1st day of July, and it provided that respondent should have until the 1st day of August, following, within which to pay into the court for the use of the appellant the sum of $300, with interest thereon at 8 per cent. per annum from the date of the payment by the appellant to the respondent, and that upon such payment the respondent should be entitled to a reconveyance of the property, etc., and also a judg ment for the costs of the action, but, if it was not so paid, that the complaint should be dismissed. We are of the opinion that the

decree was erroneous in this respect. The appellant was entitled to receive the money back which he had paid to the respondent to apply upon the land, and the same should have been tendered to him prior to the commencement of the action, and the tender kept good, to entitle the respondent to the relief sought and to the costs of the action; otherwise the judgment should have been for the appellant for costs, at least. The decree will be set aside in this particular, and the appellant will recover costs of this court also. The cause will be remanded, with instructions to allow the respondent 60 days from the time the remittitur goes down within which to pay the appellant's costs in both courts, in addition to said sum of $300, and interest thereon, and upon so doing the decree setting aside the deed will be allowed to stand; otherwise it must be set aside, and the action dismissed.

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

PLEADINGS-SHAM AND FRIVOLOUS DENIALS-MoTION TO STRIKE-ACTION ON BOND-ALLEGATION OF BREACH-SUFFICIENCY-TAXATION OF COSTS -ATTORNEY'S FEES.

1. Denials in an answer, if sufficient in form, cannot be stricken out as sham and frivolous.

2. In an action on a bond conditioned for the payment to plaintiff in a pending suit of the value of certain firm assets, and containing an express proviso that it should be ineffective unless the court gave to the principal obligor possession of such assets, which were then in the hands of a receiver, a mere recital in the complaint of an order made by the court in which it was stated that the principal was in possession of the property is not a sufficient allegation that the bond had been made effective by a delivery of such property to the principal therein.

3. In an action at law, no costs by way of attorney's fees can be imposed except such as are expressly authorized by statute.

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

Action by N. P. Larson against William Winder, as principal, and Eugene France and others, as sureties, on a bond. Defendant Winder defaulted, and from a judgment for plaintiff the sureties appeal. Reversed.

Hogan & McGerry, for appellants. J. C. Cross, for respondent.

HOYT, C. J. By this appeal, appellants seek a reversal of a judgment rendered against them as sureties in a bond given by the defendant in a suit pending in the superior court of Chehalis county, for the purpose, as it is alleged, of obtaining possession of the property owned by himself and the plaintiff in the action, as partners. Said bond was conditioned for the payment to the plain

tiff, or to such other person as the court might order or its judgment direct, of the value of all of the assets of the partnership which came into his hands, and there was a proviso attached thereto that it was executed upon the express condition that it should not become effective unless the superior court gave to the defendant in the pending action (the principal in the bond) the possession of the partnership property then in the hands of the receiver.

From the allegations of the complaint, it was made to appear that final decree had been rendered in the action between the plaintiff and the defendant who was the principal in the bond, and that such defendant had been adjudged liable to the plaintiff for a large sum of money; that he had failed to satisfy the decree entered in that action, or to account for the partnership property which had come into his possession, by reason of which it was claimed that the conditions of the bond were broken, so that the plaintiff could maintain an action thereon against the principal and his sureties. The principal named in the bond made default, but the sureties appeared, and filed a demurrer to the complaint, which was overruled. Thereupon they answered, admitting certain allegations of the complaint, and denying others, and set up certain facts by way of affirmative defense. Plaintiff moved to strike certain allegations contained in this answer, including the denials, for the reason that they were sham and frivolous, and for judg ment as prayed for in the complaint, because of the insufficiency of the matters alleged in the answer, after such allegations had been stricken. This motion was granted by the court, and upon its action in so doing, is founded the principal contention of the appellants for the reversal of the judgment.

The courts, without the aid of any statute, have long exercised the right to strike sham and frivolous answers, and this right is expressly given by our statute; but whether, under such practice or the provisions of statutes like ours, the right exists to strike denials, is open to grave question. If it be held that the courts have the right to strike as sham and frivolous denials in the answer of material allegations of the complaint, the result will be that they must often be called upon to decide whether such denials are warranted by the facts, preliminary to the trial of the cause by the court or jury; and this question of fact will generally have to be determined upon proof pro and con by way of affidavits, and not by the examination of witnesses before the court. The result of this inquiry, if it have any result at all, will be for the court to determine, upon this unsatisfactory proof, the truth or falsity of the denials, which is the very question which must be determined by the court or jury upon the trial of the cause; and since, under all of the authorities, the court will never strike such allegations unless upon the clearest

proof of their falsity, it will follow that in very few instances will any good purpose be subserved by this preliminary inquiry as to the good faith of the denials in the answer. It would therefore seem to accord with the better practice to hold that a denial in an answer, if sufficient in form, entitles the defendant interposing it to a determination as to its truth or falsity by the jury or the court, after a regular trial of the issue thus made; and such we believe to be the established right of the defendant, as recognized by the great weight of authority. In all of the cases it is conceded that, under the common-law system of pleading, the plea of the general issue could not be stricken as sham or frivolous; and it would seem that a general denial of an allegation under the Code performs substantially the same function as the plea of the general issue under the commonlaw system of pleading. It would be of no use to array the authorities pro and con upon this question as to whether or not the denials in an answer may be stricken as sham and frivolous. It is sufficient to say that by far the greater number have held that they cannot be stricken, and that nearly all of the recent cases are to that effect. The respondent seems to principally rely upon a New York case,-People v. McCumber, reported in 72 Am. Dec. 515,-and the cases therein cited; but the fact that two of the judges of the court dissented from the opinion in that case, and the further fact that in several more recent cases decided by the same court a contrary doctrine has been announced in opinions concurred in by the entire court, are sufficient to show that the contention of the respondent that the right to strike such allegations from the answer is established by authority stands upon a very slight foundation. The cases which might be cited holding that denials cannot be stricken are so numerous that an attempt to cite them would be out of place. In our opinion, the court committed reversible error when it struck the denials contained in appellant's answer as sham and frivolous.

There was no express allegation in the complaint that the bond had been made effective by a delivery of the partnership property to the principal named therein, and, as this was the consideration for the execution of the bond, it is claimed that the complaint, without such allegation, failed to state a cause of action. That it was necessary that the fact of such delivery of the property fo the principal in the bond should appear in the complaint is conceded by the respondent, but he claims that the recital in the complaint of the judgment or order made by the Court, in which it was stated that the defendant was in possession of all the assets of the partnership, was a sufficient allegation of the fact that they had been delivered to him by the receiver. But, in our opinion, the statement made to appear by the recitals in this judgment or order was not of the

same force as would have been a direct allegation to the effect that, by reason of the execution of the bond, the defendant, the principal therein named, was put in possession of the partnership property; and, since it is conceded that such an allegation in substance must have been contained in the complaint in order that it state a cause of action, it follows that the demurrer of the defendants should have been sustained.

It is claimed that the court committed error in several respects in the taxation of costs. The questions arising upon most of these claims will not arise upon a retrial, but one of them may. The court allowed plaintiff, as a part of his costs, $100 as attorney's fee for the prosecution of the action. This was beyond the power of the court. In an action at law, the court can impose no costs by way of attorney's fee, excepting such as are expressly provided by statute. The judgment will be reversed, and the cause remanded for further proceedings in accordance with this opinion.

ANDERS, SCOTT, and DUNBAR, JJ., concur. GORDON. J., not sitting.

(14 Wash. 630) WHEELER, OSGOOD & CO. v. EVERETT LAND CO. et al.

(Supreme Court of Washington. June 6, 1896.) CORPORATIONS-AUTHORITY TO BECOME SCRETYCONSENT OF DIRECTORS-PRINCIPAL AND SURETY -CONTRACTOR'S BOND-ALTERATION OF DESIGN -ESTOPPEL.

1. Where it appears that it was customary for corporations dealing in lumber to become sureties on building contractors' bonds in order to get business, articles of incorporation providing that the corporation may do all things necessary to carry on the business of manufac turing and dealing in lumber will be construed as granting the power to become surety on contractors' bonds, in the absence of any express statutory prohibition.

2. Where the directors of a corporation knew that the company was about to sign a bond as surety, and made no objection thereto, it will be presumed that they consented.

3. A contractor's bond provided that the obligee reserved the right to alter the design, and to add to or diminish the contract amount. Defendant decided to make an addition to the building in process of erection, and the contractor consulted with plaintiff, a lumber company, which was surety on the bond, in regard to the lumber necessary for such addition. Held, that the plaintiff, having made no objection at the time, was estopped from claiming a release from liability as surety on the bond on the ground that the contract was altered by the addition to the building.

4. Where a contractor's bond provided that the contractor should furnish the material for the building, the provision must be construed as requiring him to pay for the material so furnished.

There was judgment for plaintiff as against the other defendants, and from a judgment in favor of the defendant the Everett Land Company plaintiff appeals. Affirmed.

Hudson & Holt, for appellant. Francis H. Brownell, for respondent.

SCOTT, J. This was an action to foreclose a lien for materials sold by appellant to defendant Grant, as contractor, for use in the construction of an hotel owned by the Everett Land Company. The contractor and a number of other persons were made co-defendants, but none of them except respondent appeared in the action. The respondent answered, denying most of the allegations of the complaint, and in addition thereto set up as an affirmative defense and counterclaim that appellant was surety upon a bond given by the contractor to secure the erection of the building, the condition of which was as follows: "The condition of this obligation is such that if the said T. L. Grant shall erect, finish, and complete all the mason work, carpenter and joiner work, tin work, iron work, painting, and glazing for a three-story frame building designed for an hotel to be erected in the city of Everett, Washington, and according to plans and specifications, and complete the work in a good, substantial, and workmanlike manner, and furnish all materials, then this obligation shall be void; otherwise, it shall be and remain in full force and virtue,"-and that by reason thereof appellant was not entitled to a lien upon the building, and was also liable to the respondent for a sum expendedfor materials by it to complete the building, the contractor having failed so to do; and asked for a judgment for such sum. The appellant resisted the matters set up in said defense on three grounds: It denied that it had any authority to become a surety; claimed that it was released from liability by reason of an alteration in the specifications, made after the bond was executed, which provided for an addition to the hotel; and it further contended that the provision in the bond that the contractor was to furnish the materials for the building did not mean or provide that the contractor should pay for them. The court found that appellant was entitled to a judgment against the contractor, Grant, for a balance due upon its claim for materials furnished him; that the bond given by the contractor, upon which appellant was surety, was a valid obligation, and binding upon appellant; that the conditions of the bond had been broken; and that the respondent had been damaged thereby in the sum of $756.72, and was entitled to judgment against the contractor and appellant therefor. Whereupon this appeal was taken.

As to the claim that appellant had no authority to become a surety upon the bond, it is conceded that there was no statute pro

hibiting it from so doing, and the contention is based upon a want of power to do so under its articles of incorporation. Said articles provided that appellant should be authorized, "to carry on the manufacture and sale of lumber in its various forms, including sash, doors, blinds, and kindred work, furniture and wooden ware, sawing and planing lumber, and everything connected with the manufacture and sale of lumber, and to purchase and sell timber and timber lands, and to do anything and all kinds of business allowed to corporations, as provided for under the laws of Washington Territory." It was proved upon the trial that it was customary for manufacturers of lumber upon Puget Sound to go upon the bonds of contractors in order to sell them the material which they should require for the construction of buildings, and in this case that appellant was enabled to sell its material to the contractor only by becoming a surety for him upon the bond in question, the contractor having refused to purchase such material of appellant except upon that condition. As against this, appellant contends that the proof did not show that it was customary for corporations engaged in the manufacture and sale of lumber and building material to become such sureties. But this did not matter, for appellant was obliged to compete with all persons engaged in like undertakings. Unless it could comply with this custom, it would be prevented from doing considerable business, and the management of the affairs of the company in the sale of its lumber would be greatly impeded, and the object of its incorporation largely defeated. Much of the business of the country is done by corporations, and it would be contrary to a sound public policy to impose limitations upon them in the control of their affairs not clearly imposed by statute or their articles of incorporation. Such being the custom, and it having been necessary for appellant to conform thereto to sell the material, we think it had authority to become surety under the provision aforesaid, authorizing it to carry on the manufacture and sale of lumber and everything connected therewith, and to do anything and all kinds of business allowed to corporations, as provided for under the laws of the territory. It thereby asserted to itself the right to do all kinds of business connected with the manufacture and sale of lumber, and to do every and all kinds of business allowed to corporations under the laws of the territory, using the most general language, under the apparent desire and intention, expressed to the public, that it should not be hampered and restricted in any way in the conduct of its affairs. And as appellant, in consequence of going upon the bond, obtained direct and substantial benefits, by reason of the sale of a large amount of material, and as the bond was accepted and relied upon in good faith by the respondent, appellant