terially short of the requirements. According to the testimony of the plaintiff Robertson, the foundation walls, at their rear, lacked about three and one-half inches of the requisite height, and were therefore out of level to that extent. The deficiencies shown in the evidence for defendant are much more serious in their character and degree, but for our purpose specific mention of what plaintiffs admit is all that is necessary. Upon the foundation walls, in this condition, a three-story brick superstructure was erected, at a cost of about $20,000; the defendant claiming that until after this erection she had no knowledge of the defects in the concrete and foundation walls. Plaintiffs undertook to prove that she knew of them while the work was being done.

This action is brought upon the contract. A literal compliance with its terms is alleged, and upon such compliance the right to recover is based. The allegations are not sustained by the proofs.

An averment

of performance is not supported by proof of waiver of performance, even conceding that proof of such waiver was made. That in case of want of performance a waiver of such performance may cut a very important figure in determining the rights of the parties is not disputed; but the facts of nonperformance and of waiver must be pleaded, otherwise the proof is not admissible. Had this rule been insisted upon at the trial, it is clear that the case of plaintiffs failed upon their own testimony. Purdue v. Noffsinger, 15 Ind. 386; Elliott v. Caldwell, 43 Minn. 357, 45 N. W. 845; Britton v. Turner, 6 N. H. 481; Pom. Rem, & Rem. Rights, § 554. Ordinarily, therefore, we should consider the plaintiffs' case disposed of, and bestow upon it no further remark, investigating only the correctness of the judgment for damages against them. But the objection that the proofs varied from the allegations was not taken at the trial; nor, for that matter, is it taken here. The case was tried upon the theory that a knowledge by defendant of the defective construction of the foundation and walls, at the time they were constructed, without objection to them on account of the defects, might preclude | her from insisting upon the failure of plaintiffs in the performance of their contract; and instructions were given to the jury, without objection from defendant, which contemplated a verdict in plaintiffs' favor, notwithstanding their failure to comply with the terms of the contract, if the jury should believe from the evidence that the work was accepted by the defendant with knowledge of such failure. We are bound to treat the case as the parties themselves have done, and to consider it as if the statements in the complaint would warrant a recovery upon proof of waiver of performance. The obJection of variance must be taken at the trial, otherwise it cannot be considered on appeal. Pom. Rem. & Rem. Rights, § 555.

There is no doubt that the abstract leg. proposition embraced in the instructions re ferred to is correct. If the defendant ker while the work was progressing, that it wa not being done in accordance with the age ment, but nevertheless suffered it to proce to completion without objection, she will now be heard to say that the terms of te contract were not observed, and that the plaintiffs shall therefore have nothing. Suct conduct on her part would amount to a i waiver of the defects of which she knew and the plaintiffs would be entitled to jo ment for the value of the work actualy done, and as it was done, estimated with : reference to the contract price. It does no appear that she personally knew anything about the work while it was being done; bu there is evidence tending to show that her husband, Mr. Grimm, excavated the trend for the concrete, was constantly present while the concrete was being laid and the foundation walls built, overseeing the wort and had actual knowledge at the time of the very defects complained of. Counsel fr plaintiffs asked the defendant, who was z the stand as their witness, this questio "Did he [Mr. Grimm] ever act for you i any way concerning this contract, or 13 part of this work?" To this question de fendant's counsel objected, because they was no allegation of agency in the complain: The objection was sustained. Plaintif then asked leave to amend by inserting allegation of agency, which leave was re fused. If such allegation were necess the amendment should have been permitted. But we do not think it was necessary. Te question was evidently preliminary to oth ers, which would probably have brought into light the exact relations sustained by Mr. Grimm to the defendant in connective with the work. If he was her agent for the purpose of overseeing the work and o serving that it was properly done, then any knowledge which he acquired while in the performance of the duties intrusted to him. as to the manner in which the work w done, was her knowledge. The acts of a agent, done within the scope of his author ity, are as essentially the acts of the pris cipal as if they had been done by the prin cipal himself; so of an agent's knowledge of matters affecting his principal's business, að quired in the transaction of that business An allegation, therefore, of acts done or knowledge obtained by the principal is fully satisfied by proof of such acts or such know! edge on the part of the agent, and in a com plaint it is unnecessary to set forth the agency. The only objection to the question was that the agency was not pleaded A to any matter connected with the supposed waiver of defects, this is true; and neither was anything pleaded which would author ize evidence of waiver by the defendant her self, or which would authorize a recovery against her upon any other terms than full

the vendees' place of business, and the vendees agreed to call on the ensuing Monday for the balance. The goods were not paid for at the time, though Weinberger & Alexander gave their notes for the purchase price of the entire lot. When the sale was concluded, Boehm & Co. rolled the four barrels away from the remaining whisky with which they had been before intermingled, marked them with chalk, and stamped thereon the words "Log Cabin," which was the name under which Weinberger & Alexander were accustomed to sell their goods. The transaction was noted in the internal revenue book kept by the sellers and purchasers, and a copy of the gauger's receipt was delivered to the vendees. This is substantially a statement of the transaction, and about it the witnesses did not differ. The case almost amounts to one tried on an agreed statement of facts. Consequently, the question presented to the court is a naked one of law, and its resolution must settle the rights of the parties. Before the following Monday, which was the 14th of the month, a writ of attachment was issued at the suit of some creditors of Boehm & Co., and levied on the goods in their place of business. The four barrels spoken of were taken under the writ. Thereupon, Weinberger & Alexander brought replevin against the sheriff to recover this whisky, and the sheriff justified under his writ.

It has already become very manifest that the sole matter to be determined is whether the sale is within the statute of frauds, and therefore void, or whether the vendees took good title to the property by reason of what occurred when the sale was made. The law on this subject has been so frequently declared in this state that there is no room left for construction or analysis, and the only duty that remains is to state and apply well-settled principles. Cook v. Mann, 6 Colo. 21; Wilcox v. Jackson, 7 Colo. 521, 4 Pac. 966; Bassinger v. Spangler, 9 Colo. 175, 10 Pac. 809; Atchison v. Graham, 14 Colo. 217, 23 Pac. 876. These cases clearly decide that under our statute, wherever there is a contest between a vendee of personal property and an attaching creditor, the vendee must be able to establish that there was an immediate transfer of the possession of the property which he bought, or that there were some circumstances connected with the transaction which rendered a literal compliance with the statute impossible. The possession must, of necessity, be always subject to the variations naturally and necessarily resulting from the character of the property which is the subject of the sale. It must, so far as is consistent with the situs and nature of the thing sold, be open and visible, and so transferred as to apprise the world of the change in ownership. The directions of the statute are plain and specific, and they leave no possible room for construction. As it was put by the late Chief

Justice Beck, the statute "admits of me cuse for leaving personal chattels, p of manual delivery and removal, in the y parent possession of the vendor." T statement has likewise been amplifi me the supreme court has declared that, in eig to accomplish this change of poses: which is essential to a transfer of the the property itself must be removed fro the custody and control of the read wherever removal be possible, and notch. standing any expense or hardship this inoval may entail. These expositions of the statute render our duty plain, and the elb oration of the law totally unnecessary. We are only required to determine whether the evidence produced established the change of possession which these authorities hold to be absolutely essential to a valid sale. If the case rested upon conflicting testimony, and the verdict of the jury had settled the ge tion in favor of the plaintiff, under proper instructions, the case would not have be so simple. Wherever, as here, there is 20 dispute concerning the facts, and they do not establish the title of the vendee, a re dict in his favor should not be upheld. We are of the opinion that under the circamstances of this case the sale was clearly void, under the statute. The thing sold e sisted of chattels capable of easy and inmediate delivery. The excuse for leaving the property in the possession of Boehm & Co. is without the merit of probability, and though it might be absolutely true, wond not be a justification sufficient to take the case out of the statute. To acquire a good title, as against the attaching creditors of Boehm & Co., Weinberger & Alexander were bound to take the whisky which they bought. and remove it from the store of the vendors. The instructions which the court gave to the jury were clearly erroneous, since the validity of the sale was made to turn largely on the good faith of the parties. As the sopreme court has frequently decided, the question of good faith does not enter into the transaction. The question is always, nakedly, one of a change of possession, such as shall afford visible notice to the world of a change of ownership. We do not deem it necessary to review these instructions a detail, for upon a retrial, should it occur, the jury are not likely to be orally instructed as to the law, and the court will probably not fall into a similar error.

Some question was made on the argument concerning the sufficiency of the allegations and the proof of the rights of the plainti in the attachment suit. It is possible that an objection of this sort would be available, where the vendee took issue as to the existence of the debt for the collection of which the suit was instituted. But it seems to us evident, from the record and proof, that Boehm & Co. were indebted to the First National Bank, which brought the at tachment suit. In any event, if this is an

important and serious matter, the question of the rights of the parties can be amply protected on the subsequent trial which must be had under this decision. We would not feel inclined to affirm a judgment which was manifestly wrong on the proof, even though we might conclude that the sufficiency of the proof upon a question of this sort could legitimately be made a proper subject of debate. The case is not so defective in this particular as to compel us to affirm the present judgment. Since the title of the plaintiffs in replevin was not established by sufficient competent testimony, and upon the case made the sale was void under the statute, the judgment will be reversed, and the case sent back for a new trial.

FIRST NAT. BANK OF ABERDEEN ▾.
ANDREWS et al.
YOUNG v. SAME.

(Supreme Court of Washington. Nov. 15, 1893.) MORTGAGE ASSIGNMENT OF NOTES-PRIORITIESNATIONAL BANKS-COURTS.

1. Where notes payable at different times, and secured by a mortgage, are assigned to dif ferent persons, there is no priority of right under the mortgage between the assignees, in the absence of express stipulation, but each is entitled to share pro rata in the proceeds of the mortgaged property. Miller v. Bank, 31 Pac. 712, 5 Wash. 200, explained.

2. A national bank has power to take an assignment of a mortgage on land to secure a loan made at the time of the assignment.

3. As the supreme court of the United States has decided that it has authority to reexamine the judgment of a state court as to the power of national banks under the act of congress, a state court should follow its decisions on the question.

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

Consolidated actions by the First National Bank of Aberdeen against Julius Andrews and others, and by Alexander Young against the said Andrews and said bank. From a judgment in favor of the bank, Young appeals. Reversed.

N. W. Bush, for appellant. McKinlay, Linn & Bridges, for respondents.

DUNBAR, C. J. On December 31, 1891, Andrews made his two promissory notes, payable to E. C. Finch, numbered 1 and 2. No. 1 was payable six months from date and No. 2 was payable nine months from date. At the time of the execution of the notes, Andrews made and delivered to Finch a mortgage on real estate, to secure the payment of both of said notes. On said day Finch sold note No. 1 to the First National Bank of Aberdeen, and guarantied the payment thereof. No assignment of any part of the mortgage was made to the bank, nor was the mortgage delivered to it. The mortgage was recorded by Finch on March 28, 1892, in the proper office of record. On April v.34p.no.11-58

9, 1892, Finch sold note No. 2 to Alexander Young, and indorsed it without recourse on him, but at the same time he made and delivered a written assignment to so much of said mortgage as secured the payment of note No. 2, and also delivered to Young the mortgage itself. An action was brought by the bank, to which Young was made a party. Young afterwards brought an action to foreclose, and these actions were consolidated by the court, and upon which trial the court decided that the note of the bank was entitled to a priority of the proceeds arising from the sale of the mortgaged premises.

There are two questions of law involved in this case: First, the question of authority on the part of the national bank to take a mortgage on real estate to secure payment of a loan where a debt had not been previously contracted; second, the question of priority where the holder of two promissory notes, coming due at different times, secured by mortgage, parts with their ownership to different persons at different times, and the sum realized from the sale of the mortgaged premises proves insufficient to pay the notes in full. The first question involves the determination of the scope and extent of the prohibition imposed upon national banks by sections 5136, 5137, of the Revised Statutes of the United States, which provide, in substance, that a national bank may loan money on personal security, and that it may purchase, hold, and convey real estate for the following purposes, and no other: (1) Such as may be necessary for its immediate accommodation in the transaction of its business; (2) such as shall be mortgaged to it in good faith by way of security for debts previously contracted; (3) such as shall be conveyed to it for satisfaction of debts previously contracted in the course of its dealings; (4) such as it shall purchase at sales under judgments, decrees, or mortgages held by the association, or shall purchase to secure debts to it. Upon the construction of this statute the courts of the different states are divided, but the supreme court of the United States has uniformly held that a distinction can be made between borrowing money on real estate and accepting an assignment of a mortgage by the mortgagee as security for money borrowed by the said mortgagee. This doctrine was first announced in Bank v. Matthews, 98 U. S. 621. In that case A. executed a promissory note to B., and secured the payment thereof by a deed of trust of lands, which was in fact a mortgage, with a power of sale annexed. The bank, on security of the note and deed, loaned money to B., who thereupon assigned them to the bank. It was held that the bank was entitled to enforce the collection of the note by sale of the lands. This decision was afterwards indorsed, and the doctrine reaffirmed, in Bank v. Whitney, 103 U. S. 99; Reynolds v. Bank, 112 U. S. 405, 5 Sup. Ct. 213; and in Fortier v. Bank, 112 U. S. 439, 5 Sup. Ct.

234.

Whether, if the statute were before us for primary construction, we would conclude that the distinction made by the supreme court of the United States was logical, there might be some question; but, as it is a construction of the United States statute, and the United States supreme court has decided in Swope v. Liffingwell, 105 U. S. 3, that it has authority to re-examine the judgment of a state court where this question is involved, we feel bound to follow the de cisions of that tribunal. On the question of priority of the assignees an investigation of the authorities in this opinion would be profitless, for the rules announced by the court are absolutely at variance, and cannot be reconciled. There are, however, two general rules promulgated by the courts. The one established in a large number of states is that, where the notes are made payable at different dates, and are assigned by the mortgagee, either with or without an accompanying assignment of the mortgage, the holder of the first note coming due has a prior right to the proceeds of the mortgaged premises. In other words, that the right of priority among the respective assignees was tested by the maturity of the respective notes. While a vast number of cases of equally respectable authority hold that under the circumstances mentioned above there is no preference given to the first note maturing, and that, in the absence of expressed stipulation, there is no priority in the case at all, and that all the assignees are entitled to share pro rata in the proceeds of the mortgaged premises. Although the former rule is favored by such eminent authority as Mr. Pomeroy in his Equity Jurisprudence, (section 1201,) the latter rule appeals to our judgment as being more equitable. The mortgage, in the first place, was executed for the equal benefit of all the notes. The security was intended as much for the last note coming due as for the first one. There seems to be no real reason why the relative positions of the notes and mortgage should be changed because the ownership of the notes has changed. The value of the notes frequently depends upon the security. We think the more equitable and consistent rule is to leave their values undisturbed by their assignment. Miller v. Bank, decided by this court, and reported in 5 Wash. 200, 31 Pac. 712, is cited by the respondent in favor of his contention; but an examination of this case shows that the court did not attempt to announce any general rule on the question involved in this case. That decision in fact goes further against the position of respondent in this case than we find it necessary to go, as it was there decided that the priority was in favor of the note last maturing. However, no rule was established, as it was decided squarely upon the particular circumstances of the case. With this view of the law the judgment will be reversed, and the cause re

manded, with instructions to ascertain the amounts due on the respective notes, İ order a pro rata application thereon of the proceeds of the mortgaged premises.

ANDERS, HOYT, SCOTT, and STILES, JJ., concur.

STATE ex rel. HINCHEY ▼. ALLYN. (Supreme Court of Washington. Nov. 17, 189 MANDAMUS TO EX-JUDGE-SETTLEMENT OF FACTA

A judge of a superior court, whose tre expired on the second Monday of January, 186 cannot be thereafter compelled by mandamus settle and certify a statement of facts; At Jan. 21, 1893, only authorizing, and not requiring, such action by an ex-judge.

Mandamus on the relation of Thomas Hischey against Frank Allyn, ex-superior judge Writ denied.

Stephen O'Brien, for petitioner.

STILES, J. A judge of a superior court. whose term of office expired on the seco Monday of January, 1893, cannot be required by mandamus to settle and certify a state ment of facts on appeal, after the expirativa of his term. The act of January 21. 184 does not purport to do more than to authe ize the ex-judges to settle and certify. does not, and could not, require them to do anything. The application for a writ in this case is therefore denied.

DUNBAR, C. J., and HOYT, J., concur. SCOTT, J. I concur in the result.

ANDERS, J., (concurring.) For the resons stated by me in Faulconer v. Warner 2 Wash. St. 525, 27 Pac. 274, I am of the opinion that prior to the passage of the act of January 21, 1893, it was the duty of a judge whose office had expired to settle statements of facts in cases tried before him. But, as I feel bound by the majority opinion in that case, I concur in the dispost tion of this application, on the ground set forth in the foregoing opinion of Judge STILES.

LEWIS v. CITY OF PORT ANGELES. (Supreme Court of Washington. Oct. 14, 1893) MUNICIPAL BONDS-ORDINANCE ORDERING ELEC TION-RECITALS.

A recital in an ordinance submitting proposition to bond the city for the establish ment of an electric lighting plant, that said ordinance was passed in pursuance of a certain act, is mere surplusage; and where the act re cited is no longer in force, but is substantially re-enacted by the repealing act under which the ordinance must in fact have been adopted, there is no ground for an injunction on the bond is

sue.

Appeal from superior court, Clallam coun ty; R. A. Ballinger, Judge.