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.

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 de scribed 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 destroyed 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 interest 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

a conditional interest, and therefore not inIcluded in the contract of insurance. Geiss v. Insurance Co., (Ind. Sup.) 24 N. E. Rep. 99; Insurance Co. v. Weaver, (Md.) 17 Atl. Rep. 401. The respondent accepted this policy with all its provisions and conditions, and it would be neither reasonable nor equitable to permit her, after she has violated one of its conditions as to a part of the risk, to now assert that this condition only affected that particular portion of the risk to which the breach related. Wood, Ins. § 165. To hold the appellant liable upon this policy would be to impose upon it an obligation which it never agreed to assume, and would be equivalent to making a contract for the parties different from that which they themselves made, and then enforcing it against one of them for the benefit of the other. This the court must decline to do. Insurance companies, like private individuals, have a perfect right to make such contracts in relation to their business affairs as will best subserve their own interests; and contracts with such companies, when voluntarily and freely entered into, are equally binding upon both the assured and the insurer, and, if they are violated by the former, the latter is thereby released from all obligations thereunder.

One of the defenses interposed by the defendant to each of the causes of action set forth in the complaint was that the plaintiff, for the purpose of securing the amount of the insurance named in the policies, unlawfully and fraudulently caused and procured the property to be burned. No direct and positive evidence was introduced to establish this defense, but certain facts and circumstances were shown tending, to some extent, to sustain it. The court charged the jury generally to the effect that the plaintiff could not recover if she caused or procured or assented to the destruction of the insured property by fire, but refused to charge them, as requested by the defendant, "that fraud may be proved by circumstantial evidence, as well as positive proof. When fraud is charged, as is done in this case, express proof is not required; it may be inferred by strong presumptive circumstances." The court also refused to give the following instruction: "No. 13. Whenever fraudulent acts are either done or attempted, the parties guilty thereof usually conceal their acts, and the direct and positive proofs thereof rest wholly in the breasts of the guilty parties. In such cases, there fore, the usual and ordinary proofs by which such frauds, if fraudulent acts be attempted or done, are established, are the facts and circumstances surrounding the transactions. Such facts and circumstances, in order to be sufficient to establish the fraudulent act or interest in issue in any given case, must be such as will convince the mind of an ordinarily prudent person that the party charged is guilty of such fraud, and such as

is not susceptible of any natural and reasonable explanation consistent with the honesty and integrity of such person in respect to the matters in issue." These requests were pertinent to the evidence and to the issue raised by the pleadings, and substantially embodied the law concerning the effect to be given to circumstantial evidence where fraud is attempted to be proved. 2 Thomp. Trials, 1978; Lawson, Pres. Ev. p. 100; Kempner v. Churchill, 8 Wall. 369. And we think they should have been given, either in substance or as requested, in order to aid the jury in determining a controverted question which they were required to pass upon in arriving at their verdict.

Other alleged errors are relied on by the appellant as grounds for reversing the judgment appealed from, but, as the same questions are not likely to arise upon another trial, it is neither necessary nor profitable to discuss them at this time. The judgment is reversed, and the cause remanded for a new trial, in accordance with this opinion.

A complaint in an action by five lien claimants to foreclose their liens set out the claim of each as a separate cause of action, and asked for interest. There was a judgment in favor of all the plaintiffs, allowing interest. On appeal the question of interest was not raised. The judgment of the supreme court was that the judgment be set aside, and the cause remanded, with directions to enter a new judgment in favor of two of the plaintiffs for the "amounts claimed," with certain allowances for filing liens, and for costs and attor neys' fees, and that, as against the other plaintiffs, the complaint be dismissed. Held, that the judgment of the supreme court authorized interest.

Petition by defendants in case of the Fairhaven Land Company and others against R. C. Jordan and others for mandate to the trial court. Petition denied.

Bruce & Brown, for appellants. Cole & Romaine and Kerr & McCord, for respondents.

DUNBAR, C. J. This is a petition for a writ of mandate to direct the superior court of Whatcom county to enter judgment in the case wherein the Fairhaven Land Company et al. are plaintiffs and R. C. Jordan, Carmi Dibble, and James P. Demattos are defendants, in accordance with the opinion of this court, filed February 14, 1893. 32 Pac. Rep. 729. The action was brought to foreclose five mechanics' liens upon the property of the defendant Demattos. The

lien claimants joined in their complaint, which set out each claim as a separate cause of action. Judgment was rendered in the court below in favor of all the lien claimants. After reviewing the action here on appeal, the final judgment of this court was expressed in the opinion filed in the following language: "The decree will be set aside, and the cause remanded, with directions to the superior court to enter a new decree in favor of A. E. Esterbrook and the Mechanics' Mill & Lumber Company for the amounts claimed, with $1.50 and $3.25, respectively, paid out for filing liens, $75 to each as an attorney's fee, and the costs of both courts. As against the other plaintiffs, the complaint will be dismissed, with costs in both courts to appellants." The petitioner insists that, in conformity with the judgment of this court, it is the duty of the lower court to enter judgment in favor of the respective claimants for the sums set forth in their respective claims, with interest thereon after the rendition of the judgment of this court, and without interest thereon prior to the rendition of the judgment aforesaid, and that said court be directed to order and require to be entered a judgment for the face of the claims of said respective claimants, without any interest, and for no other or different sum than the principal claimed by them in their respective claims.

With the view we take of this case, it is not necessary to decide whether or not this court has power to compel a lower court to enter a judgment more specific than the judgment of this court. The petitioner cites us to many authorities to prove that interest cannot be recovered in cases of this kind, but we express no opinion on this question. We are simply called upon to construe the opinion of this court heretofore rendered. Upon the argument of the original case in this court, the question of interest was not raised. No error of the court below in allowing interest was assigned, and it cannot be raised now for the purpose of construing the opinion of this court, which was written without an investigation of that question or without reference to it. The judgment appealed from allowed interest on the claims of Esterbrook and the Mechanics' Mill & Lumber Company. The claims set out in their complaint were for interest, and, while this court reversed the decree, it was virtually an affirmance so far as those two claimants were concerned, and the judgment was not modified as to them only in so far as it was especially mentioned; and, when the order of the court is "that the decree shall be entered in favor of these claimants for the amounts claimed," the language must be construed with reference to the amounts claimed, which, we have seen, include interest. The petition will be denied.

HOYT, SCOTT, and ANDERS, JJ., concur. STILES, J., not sitting.

MANSFIELD ▾. FIRST NAT. BANK OF WHATCOM et al.

(Supreme Court of Washington. July 6, 1893.) DEPOSIT OF MONEY IN COURT-CONSENT OF PARTIES-LIABILITY-COSTS.

1. Where goods, for the recovery of which an action has been brought, are converted into money, and the money is, by consent of all parties, placed in the hands of an officer of the court, it is at the risk of one party as much as the other.

2. Where plaintiff recovers in such action, he is entitled to costs, as he would have been if the goods had not been converted, and the proceeds deposited with the officer of the court.

Application by August Mansfield, assignee for the benefit of creditors of Burrows & Anderson, plaintiff in an action against the First National Bank of Whatcom and R. L. Sabin to recover property assigned him, for writ of mandamus to the trial court to enter a certain judgment for him. Application denied.

Bruce & Brown, for petitioner. Kerr & McCord and Cole & Romaine, for respondents.

HOYT, J. The application for a writ of mandamus must be denied. The judgment which relator seeks to compel the lower court to enter is not authorized by the decision of this court. The opinion heretofore rendered (32 Pac. Rep. 789, 999) clearly shows that this court recognized the fact that it appeared from the record that the goods as to the custody of which the original controversy was commenced had been converted into money, and that the proceeds were in the hands of an officer of the court by consent of all the parties to the action. Such being the case, it must be held in all proceedings after such conversion that the money took the place of the goods, and that, as it was in the hands of an officer of the court by cousent, it was as much at the risk of one party as of the other; and in all litigation thereafter the only question to be decided was as to which of the parties should receive said moneys from such officer, and that thereafter neither of them could be held responsible for the safekeeping thereof as against the other. It will thus be seen that the judgment which the petition and answer show that the court below was willing to enter was substantially the one directed by this court, with the exception that it does not appear that it proposed to enter a judgment in favor of the assignee, as against the other parties to the action, for costs; but from what was said upon the argument we are satisfied that a bare suggestion will induce the court below to so modify its judgment entry as to cover the question of costs. It is clear that since, if the goods had not been converted into money, the assignee would have been adjudged to be entitled to the possession there of, and, as an incident to such judgment, would have recovered his costs against the

1. Under Code Proc. § 583, relating to par tition, and providing that "the rights of the several parties plaintiffs as well as defendants may be put in issue, tried and determined in such suit." a suit in equity for partition should not be dismissed, as at common law, because defendant is in possession, claiming adversely, but the court should determine the title.

2. It is not necessary that a complaint for partition allege necessity for a sale in lieu of partition, or that partition cannot be made, as Code Proc. § 584, provides that if such facts appear from the evidence, without allegations in the pleadings, a sale may be ordered.

3. Where a wife has been dead for eight years, leaving an only child and a husband surviving, and there has been no administration on her estate or upon the community property, it will be presumed, in favor of the child, that there are no community debts, or necessity for administration, and that he is entitled to possession of his share of the community real property as heir of his mother.

4. As Act 1869, declaring certain property acquired by husband or wife community property, and giving the husband power to dispose of the same, did not provide for its disposal on the death of a spouse as was done by later laws, such property would have been administered according to the rules of those states where such property and laws existed; and these rules were that the community was dissolved by the death of either spouse, and that the right of disposal in either spouse then ended, and the property became vested by moieties in the survivor and children.

5. Production of a deed to a husband during his wife's life for a valuable consideration is prima facie proof that the land was community property, and the burden of proving the contrary is on the husband's grantees.

6. In an equity case an objection that the reply did not meet certain allegations of the answer is obviated by defendant's failure to prove the allegations.

7. Where, in a suit in equity for partition, the judge erroneously transfers the case to another department, before another judge, for a jury trial, which is had, and by mandamus the equity judge is afterwards required to proceed with the case, which he does by dismissing the action, and on appeal each judge certifies to a statement of the facts before him, the statement of the equity judge, only, will be considered.

Appeal from superior court, King county; I. J. Lichtenberg, Judge.

Suit by George L. Hill against A. B. Young and Hulda Young for partition. From a Judgment of dismissal, plaintiff appeals. Reversed.

Solon T. Williams, for appellant. Preston, Albertson & Donworth, for respond

ents.

'Rehearing denied.

STILES, J. 1. This is an appeal from a judgment of dismissal rendered in a partition suit, commenced as a suit in equity. The judge sitting for the hearing of equity causes heard the testimony of the parties until each had rested, and then, finding that the cause involved the determination of facts concerning the title which were proper to be submitted to a jury, instead of calling a jury himself, made an order transferring the case to another department of the same court, where, in the orderly disposition of the business of the court, jury cases were usually heard. In this second department, special issues covering the question whether the land sought to be partitioned had been acquired by the grantor of the respondent A. B. Young with money which was his separate property, or with money which was the community property of the grantor and his wife, were submitted to a jury, and determined. Upon application to each of the judges who heard the case for judgment upon the special findings, each declined to act, upon the ground that the other had the only jurisdiction in that matter; and the mandamus case of State V. Lichtenberg, (Wash.) 30 Pac. Rep. 659, was resorted to to settle the question. In obedience to the writ of mandate, the judge of the equity department proceeded to a final determination by dismissing the action. Upon this appeal from that judgment the first point made is by the respondents, upon their motion to strike the statements of facts, of which there are two. Each of the judges has certified to a statement as containing all the facts, etc., in the case before him. but, of course, not as containing any facts occurring before his associate; and the argument made in favor of the motion is two-edged, for it is urged that, inasmuch as neither judge has certified to all the facts, there is no complete statement certified by either, and therefore no statement upon which this court can review the case. Neither party took the position, exactly, but It seems to us that the simplest way out of the matter will be to entirely ignore the statement concerning the jury trial. There was but one legal trial, and that was the one before the equity judge; the proceeding taken to place the case before a jury having been entirely irregular and unwarranted, in so far as it attempted to transfer the case to a department presided over by another judge. We would not be here understood as holding that the judges, in counties having more than one judge, may not refer the entire hearing of a case, or of any integral part of a case, to some other judge. But there can be no propriety in sending a part of a trial on the merits into another department, or, after the trial has progressed, in sending the whole case to some other judge, merely because there are found to be questions which might better be submitted to a jury. In this instance