of action and misjoinder of parties. This demurrer was sustained by the court, and the action was dismissed as to the defendants Barger & Sears. Subsequently, upon the filing of an affidavit on the part of the Coeur d'Alene Silver Lead Mining Company under the provisions of section 4109 of the Revised Statutes of Idaho, an order was made by the court on motion of the said defendant company substituting the said Barger & Sears as defendants in said action in place of said Coeur d'Alene Silver Lead Mining Company, upon the depositing with the clerk of the court by said company of the sum of $972.85. This order was served upon Barger & Sears, but they neither answered nor demurred thereto, and their default was duly entered, and thereafter, on the 23d day of April, 1892, after setting forth an epitome of the proceedings as above given, the court entered the following judgment: "Wherefore, on motion of plaintiff's attorney, W. T. Stoll, for judgment, it is ordered and adjudged that the plaintiff, James McCauley, do have and recover of and from the defendants Chas. F. Sears and Harry Barger, copartners as Barger & Sears, the sum of nine hundred and seventy-two and 85-100 dollars, together with his costs of this action, taxed at $, and that the clerk of this court pay to the said plaintiff or his attorney said sum of $972.85 so deposited as aforesaid by said Coeur d'Alene Silver Lead Mining Company in payment and satisfaction thereof."

This case seems to have been heard and determined as one coming under the provisions of section 4109 of the Revised Statutes of this state. That section is as follows: "Sec. 4109. A defendant against whom an action is pending upon a contract, or for specific personal property, may, at any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon the same contract, or for the same property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, or delivering the property or its value, to such person as the court may direct; and the court may, in its discretion, make the order." The second paragraph of the complaint avers, inter alia, "that on said day [July 2, 1890] the Coeur d'Alene Silver Lead Mining Company was indebted to the said Bresnaham in the sum of twenty-two hundred ($2,200.00) dollars;" the claim of the plaintiff by virtue of the several orders of Bresnaham upon said company, and accepted by said company, amounts to the sum of $972.85. What amount was claimed by Barger & Sears against Bresnaham is not disclosed by the record, nor does the record disclose the amount due from said company to Bresnaham at the time the attach

ment in favor of Barger & Sears was served upon them. The affidavit of Clark, made on behalf of the Coeur d'Alene Silver Lead Mining Company, is as follows: "State of Idaho, County of Shoshone ss.: [Title of Court and Cause.] Patrick Clark, being duly sworn, on his oath says that he is the general manager of the defendant the Coeur d'Alene Silver Lead Mining Company. That said defendant is a corporation duly organized in the state of Montana under the laws thereof. That Charles F. Sears and Barger, partners under the name of Barger & Sears, without any collusion with this defendant, made a demand upon this defendant for the same fund sued upon in this action, and prior to bringing this action had caused papers in attachment to be served upon this defendant, thereby asserting that this defendant was attached as a debtor of the John Bresnaham mentioned in the complaint. That this defendant has no interest in the fund sued upon of nine hundred and seventy-two 85-100 of the twenty-two hundred dollars alleged to be owing said Bresnaham, and should not be burdened with the capense of litigating about the same, and is desirous of availing itself of the provisions and benefits of section 4109 of the Revised Statutes of Idaho; and thereupon prays the court to make an order authorizing it to make deposit of said fund in court, subject to the retention by the clerk of all the costs which have accrued to this date of such order in this action. Patrick Clark." "Subscribed and sworn to before me, June 11, 1891. H. M. Davenport, Notary Public. [Seal.] Filed June 26, 1891." There was no fund in question, and, if there were, there is no identity shown of the fund sued upon and that stated by Clark in his affidavit, for the former is stated to be $2,200, while the latter is said to be "nine hundred and seventytwo and 85-100 dollars of the twenty-two hundred alleged to be owing said Bresnaham." Clark states in his affidavit that prior to the commencement of this action by plaintiff, Barger & Sears had commenced an action against Bresnaham and had served attachment papers upon the company, but for what amount they had sued, or whether such suit was instituted before or after the acceptance of the orders upon which the action of plaintiff is brought, does not appear. It will readily be seen, if the orders were accepted by the company after the service of the attachment, the company cannot evade its liability under the attachment by urging the subsequent acceptance of the orders given by Bresnaham. From aught that appears in the record, the sum owing from the company to Bresnaham at the time this suit was instituted was sufficient to pay both the claim of plaintiff and of Barger & Sears. In the case of Pfister v. Wade, 56 Cal. 43, which was an action brought upon a statute from which section 4109 of the Revised Statutes of Idaho was copied, the

court say: "It is an inflexible rule that the thing to which the parties make adverse claims must be one and the same thing; or, in other words, the claims must be identical. Where the claims made by the defendants are of different amounts, they never can be identical." The object and purpose of the statute is to protect the party from double vexation in respect to one liability. No such contingency arises in this case as shown by the record. The liability of the company to pay the claims of the plaintiff was fixed by its acceptance of the orders given by Bresnaham, and its liability to Barger & Sears by its answer to the writ of attachment or garnishment. The record fails to show any identity of the claims by Barger & Sears and that of the plaintiff; nor does the record show the essential fact that the claims arose from one contract; nor is it inferable from the record that the claim of Barger & Sears was in any way connected with, or the liability of the mining company to pay the same in any way dependent upon, its liability to pay the claim of plaintiff. How can it be said, under the facts as shown by the record in this case, that Barger & Sears and the plaintiff were pursuing and seeking to recover the same fund? The claim of plaintiff, as shown by the record, was $972.85, while the record fails to show either the character or amount of the claim of Barger & Sears. The amount due Bresnaham from the company appears to have been $2,200. Now, which was the fund? What was the amount required to be paid into court by the silver lead mining company under the provisions of section 4109? A casual consideration of these propositions will show that the case is not one covered either by the statute or the rules governing the equitable remedy of interpleader. Pfister v. Wade, 56 Cal. 43; Shaw v. Coster, 35 Amer. Dec. 695, and notes.

The depositing in court by the company of the sum of $972.85 was no compliance with the provision of section 4109, as it does not appear, nor is there anything in the record upon which the assumption can be predicated, that that was the amount due from the company to Bresnaham, or that it was the amount due from Bresnaham to Barger & Sears, and for which the latter had attached the company. There being no authority in the district court, as the case is presented by the record, to enter judgment against Barger & Sears, such judgment is reversed, and the case remanded to the district court for further proceedings.

MORGAN and SULLIVAN, JJ., concur.

RANKIN v. MALARKEY et al. (Supreme Court of Oregon. Nov. 20, 1893.) MECHANIC'S LIEN-NOTICE.

A notice of lien, which states that claimant had a contract with A. for furnishing lum

ber and material used in erecting a dwelling house on ground, describing it, belonging to B., who caused the dwelling house to be erected, and that the value of such lumber and material was a specified sum, is not sufficient to create a lien, because it fails to state the name of the person to whom the materials were furnished, or to connect the person with whom claimant had the contract with the owner of the ground and building, as required by Hill's Code, # 3669, 3673. 32 Pac. Rep. 620, affirmed.

On rehearing. For report of decision on appeal, see 32 Pac. Rep. 620.

Dan J. Malarkey, for appellants. Johnson & Idleman and H. G. Platt, for respondent.

BEAN, J. The right to enforce a me chanic's lien against a building, for labor performed or material used in its construe tion, is purely a creature of the statute, and does not exist, however equitable the claim may be, unless the party claiming the lien brings himself within the provisions of the statute by a substantial compliance with its terms. Whatever the statute makes neces sary to the existence or enforcement of the lien must be substantially complied with and the courts cannot, by construction, dis pense with any of its requirements. This is the rule of the adjudged cases, both of this and other courts, and is the one announced by the former opinion herein. Now, applying this rule to the claim of lien before us. it is apparent that it does not comply with the statute, because it does not appear on the face thereof, as required by section 3673, Hill's Code, to whom Rankin furnished the material, if, indeed, it appears that he furnished any of the material, used in the Malarkey building. The language that “I, N. K. Rankin, * have, by virtue of

a certain contract with D. C. McDonald & Co., * * and for the furnishing of lumber and material used in the erecting and building and completing of a certain dwelling house," cannot, under the most liberal rules of construction, without eliminating the words "and for the furnishing of," and substituting in place thereof the word "furnished." be tortured into a statement that, by virtue of a contract with McDonald & Co., Rankin furnished lumber and material used in said dwelling house. It is entirely silent as to what Rankin did by virtue of his contract with McDonald, nor can it be said, from a fair construction of the language, that the contract with McDonald & Co., referred to, was for furnishing the lumber and material used in the Malarkey building. We are not disposed to apply a strict or technical construction to mechanics' liens, and, however faulty or illy constructed they may be, if it can fairly be inferred from the language used that the requirements of the statute have been substantially complied with, they will be upheld and enforced. But we cannot change the language by eliminating and substituting words, and when the claim, as filed, is entirely silent upon one of the essential requirements of the statute, no rule of con

struction will authorize the court to supply the omission. The statute has required the claimant to file in a public office a sworn statement of a particular character, and that requirement must be at least substantially observed before the court can enforce the lien, and, not having been done in this case, the former decree must be reaffirmed. In addition to the point suggested, it is proper to remark that, in the opinion of the court, the claim of lien in this case was not filed within the time required by law, nor does it contain a true statement of the plaintiff's demands.

DILLON v. HART et al.

(Supreme Court of Oregon. Nov. 20, 1893.)

MECHANICS' LIENS-NOTICE OF LIEN.

It is essential to the validity of a mechanic's lien that the notice of lien shall contain, as required by the statute, a statement of the claim, and the name of the person to whom claimant furnished material, or for whom he performed labor.

Appeal from circuit court, Multnomah county; Loyal B. Stearns, Judge.

Suit by H. E. Dillon against J. D. Hart and another to foreclose a mechanic's lien. From a judgment for plaintiff, defendants appeal. Reversed.

W. E. Thomas, for appellants. P. J. Bannon, for respondent.

BEAN, J. This is a suit by a subcontractor to foreclose a mechanic's lien upon the real property of the defendants, for labor and material furnished and used in the construction of a building thereon. The portion of the claim of lien material to the question presented on this appeal is as follows: "Know all men by these presents, that I, H. E. Dillon, of the city of Portland, in the county of Multnomah, state of Oregon, have, by virtue of a contract heretofore made with Cramer & Krupke, partners, of Portland, of the county of Multnomah, Oregon, who were the contractors and agents of J. D. Hart and C. C. Newcastle, and J. D. Hart and C. C. Newcastle were the owners and principals in the building and furnishing the material of a certain house, the ground upon which said house was built and material furnished at the time the property of J. D. Hart and C. C. Newcastle, who caused the said house to be built and material furnished." This notice of lien is clearly insufficient within the rule announced in Rankin v. Malarkey, 34 Pac. Rep. 816, (just decided,) because it does not state, either directly or by necessary inference, to whom he furnished material or for whom he furnished the labor for which he seeks to enforce the lien, or, in fact, that he furnished any material or performed any labor on the building of the defendants. Under the provisions of the stat ute, it is essential to the validity of a mev.34P.no.10-52

chanic's lien that the claim thereof, as filed, contains a statement of such claim, and the person to whom claimant furnished material or for whom he performed labor, and without such a statement it is insufficient, and cannot be enforced. For these reasons the decree of the court below must be reversed, and the complaint dismissed.

BARTHOLOMEW et al. v. AUMACK et al. (Supreme Court of Oregon. Nov. 27, 1893.) CONTRACTS-SALE OF LAND-ACCOUNTING.

1. Plaintiffs agreed to clear. plat, and sell land for defendants, delivering to them all re ceipts on sales, except $10 commission on each lot sold, with a stipulation that, when a certain amount of cash was collected from sales, the land then unsold and the notes unpaid should be transferred to plaintiffs, and that if defendants did not receive $2,000 in six months they might annul the contract, in which case the $10 commission on each lot should be full compensation for plaintiffs' services. It was further agreed that if defendants should be evicted, as a result of a suit then pending, they should pay plaintiffs $40 per acre for clearing the land, and the contract should be void. Held, that on the eviction of defendants, as a result of such pending suit, plaintiffs could not recover moneys expended by them in surveying the land.

2. Plaintiffs were. however, in such case, entitled to recover $540, which they paid in order to complete the amount of $2,000 necessary to prevent the forfeiture of the contract at the end of six months.

Appeal from circuit court, Multnomah county; Loyal B. Stearns, Judge.

Action by D. Bartholomew and James Hyland against Lyle N. Aumack and others. From a judgment for defendants, plaintiffs appeal. Modified.

The other facts fully appear in the following statement by MOORE, J.:

This is a suit for an accounting. The facts show that on August 26, 1890, the defendants claimed to be the owners of a tract of land in Multnomah county, Or., containing 5.92 acres, which land was also claimed by one Samuel Coulter, who had commenced an action in the circuit court of said county against the Portland Trust Company involving the title to said property. That on said date a written contract was entered into between the parties to this suit, by the terms of which the plaintiffs agreed to clear said land of brush, survey and plat it into lots and blocks, advertise and sell it, within six months from the date thereof, for cash down or on time, taking installment notes on time sales, payable to the defendants, who were to execute warranty deeds to cash customers, and bonds for deeds, in double the amount of the purchase price, to purchasers on credit. All notes taken and moneys received, except a commission of $10 upon each lot sold, were to be delivered to the defendants, and when the sum of $7,404.41 should be collected, in actual cash. on account of sales, the lots and blocks then unsold were to be con

veyed, and all notes wholly or in part unpaid were to be assigned to the plaintiffs, who were to pay the expense of conveyancing and all taxes upon the property, or notes given therefor; but if the defendants did not receive the full purchase price, in cash or notes, within six months, and realize $2,000 on such sales and notes, then, by giving the plaintiffs notice of their election, they could declare all rights under said contract forfeited, and when so declared the $10 commission should be a full compensation for services in making such sales, and in case no notice be given the balance of the purchase price should be payable in eight months thereafter, with interest thereon at the rate of 8 per cent. per annum. It was further agreed that if the defendants should be evicted, as a result of a judgment in the said action of Coulter v. Portland Trust Co., then the defendants were to pay the plaintiffs $40 per acre for clearing said land, and the contract between them was to become void. The plaintiffs cleared said land, and paid therefor $240, surveyed and platted it into 37 lots, and paid on account thereof, and for taxes and other expenses in making sales, $158.35; and on February 26, 1891, the defendants not having received $2,000 in cash within the six months, the said plaintiffs paid them $540 to complete this amount, and thereupon the contract was extended from time to time until December 1, 1892. The plaintiffs, prior to the lastmentioned date, had sold all of said lots, and delivered to the defendants the proceeds thereof, and on December 1, 1892, they had collected $8,109.50, which included the interest on the balance due February 26, 1891, and the payment of the $540 made by the plaintiffs. In the action of Coulter v. Portland Trust Co.. judgment was rendered in favor of the defendant, which, upon appeal to this court, was, on April 14, 1891, reversed, and a new trial ordered. 20 Or. 469, 26 Pac. 565, and 27 Pac. 266. A mandate was entered in the court below, and while said action was there pending a suit was brought in said county to stay the proceedings at law, and a decree rendered dismissing the bill, which, on appeal to this court, was, on October 31, 1892, affirmed. Trust Co. v. Rush, 31 Pac. 280. The defendants herein, subsequent to October 31, 1892, made a settlement with Samuel Coulter, whereby they, in consideration of one dollar, conveyed to him 16 lots that had been forfeited by the purchasers, and Coulter, in consideration of $6,000, conveyed to them 21 lots that had not been forfeited. That thereafter, and prior to December 1, 1892, in response to plaintiffs' request for a settlement, defendants offered to pay plaintiffs the sum of $240 on account of clearing said land, and refused to make any other settlement, whereupon this suit was instituted on December 29, 1892. That on January 4. 1893, in the action of Coulter v. Portland Trust Co., judgment was

rendered in favor of the plaintiff, and for the possession of said tract, and the defend ants, as a result thereof, were evicted there from, which fact is alleged in their answer to the complaint herein. The cause was re ferred to John B. Cleland to take the testmony and report the facts, and his conclusions of law thereon, who found that the plaintiffs were entitled to recover $240 and costs; and this report having been affirmed by the court, and a decree rendered in ac cordance therewith, the plaintiffs appeal.

Gearin, Silvestone, Murphy & Brodie, for appellants. Watson, Beekman & Watson.

for respondents.

MOORE, J., (after stating the facts.) The plaintiffs contend that they are entitled to recover from the defendants, in addition to the amount allowed them by the court, the following: For surveying and other expenses, $158.35, and for money advanced on the eattract, $540. It was necessary to make a survey and plat of the land, and advertise the property, before any sales could well be made; and, as the plaintiffs agreed to do these things with full knowledge that the contract might be defeated, they can have no cause of suit because the contingency oe curred, and the title failed. Their commis sion of $10 for each lot sold, and the possibil ity of obtaining the residue of the property, and the assignment of the notes after the purchase price was fully paid, were a suffcient consideration for their agreement.

The contract provided that when the de fendants had received $7,404.41 in actual cash from the sale of the property, if realized during the existence of the contract, ther would convey to the plaintiffs all the unsold lots, and assign to them all notes wholly or partly unpaid. This gave to the plaintifs an equitable interest in the land itself, as well as in the fund arising from its sale. subject, however. to be defeated by the condition that $2,000 in cash must be realized within six months from the date of the contract. To prevent the breach of this condi tion, they advanced the $540 to make up the deficiency in the $2,000 payment. This was a voluntary payment upon their part, and made for their own benefit. They could have selected lots for themselves as a consideration for the payment, and had they purchased the entire tract, and paid the full consideration, the defendants would have been compelled to execute and deliver to them proper conveyances. If, upon the payment of the whole consideration, a conveyance could have been demanded, is it not equally true that, upon the payment of a part of the consideration, they could have demanded a conveyance of a part of the property? By not selecting lots for themselves, they elected to take the remainder of the property after the purchase price had been fully paid; and since the defendants had re

ant. This appeal is prosecuted from such judgment.

ELECTRIC LIGHT & POWER CO. v. CITY OF SAN BERNARDINO. (No. 19,282.) (Supreme Court of California. Nov. 25, 1893.)

CITIES-CONTRACTS-STREET Lighting.

The lighting of streets by electric arc lights placed above the intersections of streets is not "street work," within Mun. Corp. Act, § 777, as amended by St. 1891, p. 54, providing that in the erection of public buildings, and in all street and sewer work, it shall be done by contract let after notice by publication.

Department 1. Appeal from superior court, San Bernardino county; George E. Otis, Judge.

Action by the Electric Light & Power Company against the city of San Bernardino. Judgment for defendant. Plaintiff appeals. Reversed.

Harris & Gregg, for appellant. Wm. Gird and John Brown, Jr., for respondent.

The

GAROUTTE, J. The plaintiff in this case is the Electric Light & Power Company, a corporation organized in this state, and the defendant is the city of San Bernardino, a municipal corporation of the fifth class. The plaintiff entered into an express contract for lighting the streets of the city of San Bernardino for one year following the 1st day of October, 1891, with 42 electric lamps. city agreed to pay therefor the sum of $546 per month. The contract was fully complied with on the part of the plaintiff, and the defendant made payments on the contract for all the months except July, August, and September, 1892. The respondent refused to pay for lighting the city during these lastnamed months, and this action is brought to recover the contract price, amounting to $1,€38. In answer to plaintiff's complaint, the defendant alleges that the lighting of the city was done under the contract set forth, but asserts that the contract was unauthorized, in that it was not let pursuant to any notice or advertisement for bids for lighting the city, and that no advertisement inviting bids for the lighting of the city was ever given by the board of trustees of said city. At the close of plaintiff's case, the defendant moved for judgment of nonsuit on the grounds specified in his answer, and the court granted the

The merits of this appeal are determined by the construction given section 777 of the municipal corporation act, as amended by the Statutes of 1891, p. 54. That portion of the section to which it is necessary that we direct our attention is as follows: "In the erection, improvement and repair of all public buildings and works, in all street and sewer work, and in all work in or about streams, bays or water-fronts, or in or about embankments or other works for protection against overflow, and in furnishing any supplies or materials for the same, when the expenditure required for the same exceeds the sum of $100, the same shall be done by contract, and shall be let to the lowest responsible bidder after notice by publication in a newspaper of general circulation. *

The

city was lighted by plaintiff, as shown by the testimony, by arc electric lights suspended at a considerable height above the intersection of the streets, from wires, which wires were supported by wooden masts Does the lighting of streets, as here de scribed, come within the term "street work," as used in the foregoing provision of the statute? We are satisfied that it does not, and to give such a meaning would demand a construction of the statute entirely unjustifiable by its language. "Street work" is a phrase of common usage, and has a well-defined signification. The words mean exactly what they indicate upon their face, namely, work upon a street,-work in repairing or making a street. The phrase is found in the decisions of this court, and in the statutes of the state, times without number, and its construction as indicated, to our knowledge, has never been questioned. The parties plaintiff and defendant entered into an express contract. The plaintiff furnished the light at the time and upon the terms demanded by the contract, and the city now refuses to pay the balance due under its contract, upon the ground that notice was not given in the newspapers and bids requested. Such being the status of the case, it certainly is not demanded of us that doubtful constructions, even if this provision gave occasion for them, should be resolved in favor of the defendant. The provision, fairly construed by all rules of construction, does not bring the subject of this litigation within the term "street work," as there used. There can be no question as to the sound policy of a law requiring municipal corporations to enter into contracts for the payment of money only after full notice and opportunity for competition, but that is not a matter for our consideration here. We must take the statute as we find it. We can neither add to it nor subtract from it. It is our duty alone to construe it as it stands enacted. For the foregoing reasons, it is ordered that the judgment