plaintiff, which is ancontradicted. At the time of the sale the plaintiff was engaged in the business of school teaching at Portland, and was unable to examine the lands, owing to their location in a distant part of the state, and, being unwilling to buy them without seeing the same, the defendant, to induce him to make the purchase, made the agreement in writing set out. At the expiration of the school term, the plaintiff examined the lands, and found them utterly unfit for the purpose for which they had been purchased. The defendant introduced no testimony, and relies solely upon technic-| al suggestions to defeat the enforcement of the agreement.

One of the questions presented is whether the agreement set out is wanting in mutuality. The decided cases show that the rule as to mutuality is greatly circumscribed by numerous limitations, and that a conditional or unilateral contract may come within these exceptions. 2 Beach, Eq. Jur. § 586; Wat. Spec. Perf. § 200. The principle is well settled that where an owner of land gives another, for a sufficient consideration, an option or privilege for the purchase of land within a given time, in writing, with a full knowledge of the fact that he is bound, and the other party is not, it is such a contract as will be enforced in equity at the instance of the party holding the option. As Mr. Justice Newman asks: "Does such a contract, indeed, lack mutuality? The seller, for a fair consideration, agrees to give the proposed purchaser a certain fixed time in which to make the contract mutual by acceptance of the offer to sell. If he accepts within the specified time, both parties are fully bound." Johnston v. Trippe, 33 Fed. Rep. 536. In Hall v. Center, 40 Cal. 67, the court says: "If the owner of an estate has fairly made a contract for a sufficient consideration received by him, by which contract he has himself stipulated that another person may, at the option of the latter, receive a conveyance of the estate upon the payment or tender of a fixed sum within a given time, what principle of equity is violated by making the owner comply with his contract? If the other party has obtained the option, he has fairly bought it and paid for it, and there is no principle or policy of law violated in its purchase." See, also, Hawralty v. Warren, 18 N. J. Eq. 124; Clason v. Bailey, 14 Johns. 484; Schroeder v. Gemeinder, 10 Nev. 355; Pom. Spec. Perf. § 169. In the case at bar the defendant sold the land to the plaintiff, and, to protect him in case of dissatisfaction therewith, he gave him the option to disaffirm the contract, if he so desired, in which event the defendant agreed to repurchase it. After the plaintiff notified the defendant that he was dissatisfied, and expressed the desire that he should repurchase the land, in accordance with the terms of the agreement, the offer of the defendant to purchase was accepted by the plaintiff; so that, when the

plaintiff exercised the option within the time specified, the minds of the parties met, and the contract became mutual, and enforceable by either party. We think, therefore, the contract, as thus made, the other conditions existing, is a proper subject of specific performance.

The last contention is that the agreement sought to be enforced is void, because it does not state the consideration. The statute provides that an agreement for the sale of land is void unless the same, or some memorandum thereof expressing the consideration, be in writing, and subscribed by the party to be charged, etc. Section 785, Hill's Ann. Code. Under statutes of this character, it has been held that if, from the terms of the writing, the consideration for the promise is inferable, it is expressed in such agreement, within the meaning of the statute; and, while we think the consideration is apparent from a reasonable construction of the terms of the contract, yet, the agreement being under seal, the seal is itself the expression of a consideration sufficient to satisfy the statute. There are numerous authorities which show that it has been repeatedly held that words "for value received" sufficiently comply with statutes like ours, which require the consideration to be expressed. Day v. Elmore, 4 Wis. 214; Watson v. McLaren, 19 Wend. 557; Miller v. Cook, 23 N. Y. 495; Osborne v. Baker, 34 Minn. 307, 25 N. W. Rep. 606; Brooks v. Morgan, 1 Har. (Del.) 123; Whitney v. Stearns, 16 Me. 394. The text writers also generally state the law to be that the words "for value received" sufficiently express the consideration. 1 Reed, St. Frauds, § 430; Brown, St. Frauds, § 408a; Daniel, Neg. Inst. § 1767; 3 Pars. Cont. 16; Brandt, Sur. § 70. It is the law, too, that the seal is a sufficient expression of the consideration. Reed, St. Frauds, § 431. "We have held again and again," said Cowan, J., "that a seal expresses a consideration, withIn the meaning of the statute." Douglass v. Howland, 24 Wend. 45. If the memorandum is under seal, the implication of consideration therefrom is sufficient. Brown, St. Frauds, 408a. Woodruff, J., said: “An instrument under seal is held not void under the statute, although no consideration is in terms stated therein, upon the ground that the seal imports consideration. It is sufficient if, upon the face of the instrument, consideration is a necessary legal implication." McKensie v. Farrell, 4 Bosw. 207. The object of the statute of frauds was to prevent the facility to fraud and perjury to which contracts dependent upon the memory of witnesses were exposed by requiring them to be reduced to writing. When this is done, there does not seem to be any reason why the consideration might not be proved by parol, as in the case of any other contract, or, if there is any reason for expressing the consideration, the true one ought to be expressed; yet the authorities cited show that

the words "for value received" or that a seal itself sufficiently expresses the consideration. The fact is, as Mitchell, J., said, "that the expression of the consideration is so unnecessary in order to prevent the mischief aimed at that the courts have always been inclined to give this provision of the statute a very liberal construction, which sometimes, as in the instances cited, reduces it to a mere formality." Osborne v. Baker, supra. In view, therefore, of the authorities, we think the seal sufficiently expresses the consideration, within the meaning of the statute. The decree is affirmed.

1. An estoppel of an insurance company to claim a breach of the conditions of a policy of fire insurance by nonoccupancy of the premises, after having issued the policy with knowledge of such nonoccupancy, must be specially pleaded.

2. On an issue as to whether an insurance company waived proof of loss by declining to pay a policy, the insured testified that the general agent and the adjuster of the company both told him that the loss would not be paid, which statement these officers denied. It ap peared that the insured, to secure insurance on another building near the house covered by the policy in suit, and burned at the same time, testified that he was occupying such building at the time of the fire, while he afterwards swore that at that time, and for six weeks previous, he had occupied the house covered by the policy. Held, that a finding by the referee that the company did not decline to pay the policy was justified.

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

Action by W. S. Bruce against the German Savings & Loan Society and the Phoenix Insurance Company. From a decree for defendants, plaintiff appeals. Affirmed.

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

This is a suit brought by the plaintiff against the German Savings & Loan Society and the Phoenix Insurance Company to recover from the latter $1,800, the amount claimed to be due on an insurance policy, on account of a loss by fire. The facts show that on May 31, 1890, plaintiff was the owner of certain real property in Portland Homestead, Multnomah county, upon which was a two-story frame building, of the value of about $2,600, and on that day he executed and delivered to the German Savings & Loan Society a mortgage upon said real property to secure the sum of $1,000, payable in three years from that date, in which mortgage he covenanted to keep said building insured for $1,800 against loss by fire in some reputable insurance company, the loss, if any, to be made payable to said mortgagee; that on June 2, 1890, he made application to one J.

A. Arment, a local agent of the Phoenix Insurance Company, for an insurance upon said building in the sum of $1,800, for the term of three years, while occupied as a family dwelling, and paid $27 as a premium thereon, and thereupon the company executed and delivered to him policy No. 3,538, as applied for by him, which he delivered to said German Savings & Loan Society as collateral security for its loan, and to be held by it as trustee for the plaintiff, after the payment of the said mortgage debt; that on July 4, 1891, said building was totally destroyed by fire, and the plaintiff, on or about the 7th of that month, notified the agent of the insurance company thereof, but, the company failing to pay said loss, the plaintiff requested the German Savings & Loan Society to bring an action against the said insurance company upon said policy, which it refused to do, thus compelling him to bring a suit in equity to protect his rights. The conditions of the policy issued to plaintiff, and relied upon by the insurance company to defeat the recovery, are as follows: "This entire policy, unless otherwise provided by agreement indorsed thereon or added hereto, shall be void if * a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days." The policy also provides, among other things, that, "if fire occur, the insured shall give immediate notice of any loss thereby, in writing, to the general agent at San Francisco;

and within sixty days after the fire, unless such time shall be extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and all others in the property; the cash value of each item thereof, and the amount of loss thereon; all incumbrances thereon; * any changes in the title, use, occupation, location, possession, or exposure of said property since the issuing of this policy; by whom and for what purpose the building herein described, and the several parts thereof, were occupied at the time of the fire," etc. The policy further provided that "no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire." Reference is also made in the policy to the application and survey of the insured. The plaintiff alleged that he had duly performed all the conditions of said policy on his part to be performed. The insurance company, after denying the material allegations of the complaint, set up three separate defenses: (1) That plaintiff caused to be constructed a frame building with shingle roof at a distance of 35 feet from the in

sured building, when at the time the policy was written the space was 100 feet to the nearest building, thereby increasing the hazard, without notifying the company; (2) the building insured became vacant and unoccupied, and so remained for more than 10 days; and (3) the insured furnished no proof of loss, as required by the policy, and that such proof was not waived by the insurance company. After the issues were completed, the cause was referred to Mark O'Neill to take his testimony, and report his findings of fact and conclusions of law thereon, and, after some testimony had been taken, the plaintiff, by leave of the court, filed an amended complaint, in which he alleged that he offered to furnish the insurance company with due proof of loss, but that it, by its duly-authorized agent, waived the condition of said policy by which it was required to furnish proof of loss to said defendant, and relieved and discharged the plaintiff from the performance thereof by stating to him that the said insurance company would not pay said loss. After the testimony had been taken, the referee reported, as his findings of fact, that said building was and had been unoccupied for more than 10 days prior to the fire, without the knowledge or consent of the insurance company or its agents, and that the insured failed and neglected to make proof of loss within 60 days after said building was destroyed by fire, and that said insurance company had not extended the time In writing to said insured to make such proof of loss; but he made no findings upon the question of the hazard caused by the construction of said frame building at a distance of 35 feet from the building covered by the policy in question, and, as a conclusion of law, found that the insurance company should recover from the plaintiff its costs and disbursements. The court approved the report of the referee, and a decree was rendered dismissing the suit, from which the plaintiff appeals.

George A. Brodie, for appellant. lory, for respondents.

R. Mal

MOORE, J., (after stating the facts.) The appeal presents the following questions: Was the hazard increased by the construction of another building after the policy was issued? Was the house unoccupied at the time of the fire, and had it been so unoccupied for more than 10 days prior thereto? And was the proof of loss waived by the insurance company?

We do not deem it necessary to examine the first question, as we think the solution of the other two decisive of the case. The plaintiff alleges that he duly kept and performed all the conditions of the policy to be performed by him. The answer denies this, and, for a separate defense, alleges that at the time of the fire the house was unoccupied, and that it had been so unoccupied for more v.34P.no.1-2

than 10 days prior thereto, without the knowledge or consent of the insurance company. The reply denies this separate defense, and the issue is thus clearly made by the pleadings upon this question. The proof conclusively shows that at the time of the fire the house was unoccupied, and that It had not been occupied for about six weeks prior thereto, and that the company had no knowledge thereof. The plaintiff contends, however, that, at the time he applied for insurance, J. A. Arment, the agent of the insurance company, visited the house in question, and knew that the building was unoccupied, and that, having accepted the risk with knowledge thereof, the company is estopped from disclaiming a waiver of the policy on that account; that such knowledge on the part of the agent is notice to the company; and that the act of issuing the policy constitutes an estoppel in pais, which can be established by evidence without any allegation in the pleading to support it. It is well settled at common law that an estoppel in pais need not be pleaded, (Big. Estop. 699,) but the contrary has been held in this state. In Rugh v. Ottenheimer, 6 Or. 231, it was held, in a case in which the legal title to real property of the wife was held by her husband, that she was not estopped to claim the title against the husband's creditors, who had furnished goods upon the faith of his ownership of the land, without alleging the facts constituting the estoppel. Boise, J., said: "If she had been guilty of fraud which would estop her, then the same should be pleaded to make it allowable, which is not done, and the matter of estoppel cannot be considered in this case. So, in Remillard v. Prescott, 8 Or. 37, it was held that where the defendant had, without objection, permitted the plaintiff to make improvements and pay the taxes upon defendant's land, the latter was not estopped from claiming the legal title, and that it could not be controverted without alleging the estoppel. The same learned justice said: "The appellants claim title by estoppel, and, if they intended to rely on such title, they should have pleaded it in the complaint, as they had an opportunity to do so. They made their case on the complaint, wherein they relied on the fact that Craig had purchased the property from Chapman, and that, by mistake or the procurement of Prescott, the deed was made to Prescott and Craig. We think, therefore, that the matter of estoppel as sustaining the claim of the appellant as prayed for cannot be considered in this case." These cases have settled the rule in this state that an estoppel in pais must be pleaded, and we see no reason for changing it. The plaintiff relied upon the issue he made in his complaint, and not upon the estoppel, and, having elected his cause of suit, he should be bound thereby.

2. The original complaint, in substance, alleges that on July 7, 1891, plaintiff noti

The

fied the company of his loss, and thereafter | furnished said insurance company with due proof thereof, while the amended complaint admits that no proofs were ever made. evidence fails to show that plaintiff offered, or that the company rejected, any proof of loss, as alleged in the amended complaint, or that the company, by its agent, ever told the plaintiff the loss would not be paid, thereby relieving him from the necessity of making the required proof. The plaintiff testified that, about five days after the fire, he called upon J. D. Coleman, the agent and adjuster of the insurance company, who told him the loss would be paid; that, about five or six days after the first visit, he again called upon Mr. Coleman, who then told him the company would not pay. He also testified that he saw A. F. Gartner, the general agent of the company, who told him at first that they would see about the loss, and at another time that the company would not pay it. Mr. Coleman testified that the first time he saw the plaintiff after the fire was between the 15th and 20th of July, and that he never at that or any time told him the loss would not be paid. Mr. Gartner testified that plaintiff called upon him, and wanted to know when the company was going to pay him, and that he told him the loss was payable to the German Savings & Loan Society, and that, if any money was paid on the policy, it must be paid to that society. Upon this contradictory evidence, the referee found that the company had not waived the condition of the policy which required proof of loss within 60 days from the time of the fire by informing the plaintiff that the loss would not be paid. It is impossible for the appellate court, in the examination of a record, to determine the preponderance of evidence with that degree of certainty attainable by a court or referee who saw the witnesses, heard them testify, and noted their manner and appearance while on the witness stand; and the findings made under such circumstances will rarely be disturbed when there are other facts and circumstances which tend to weaken the testimony of the defeated party, or corroborate the conclusions reached. There are several facts and circumstances which tend to impair the testimony of the plaintiff. In order to secure the insurance upon the new building, which it is claimed increased the hazard to the building in question, and which was burned at the same time, he averred in the affidavit made in proof of his loss that at the time of the fire he was occupying the new house, and, upon this proof, secured his insurance. Soon after, he made another affidavit, in which he swore that prior to and at the time of the fire the house covered by the policy in question was and had been occupied for about six weeks, while at the trial of this cause he testified that he occupied the house in question, and had slept therein nearly every night for six weeks prior to the fire. In this

he is contradicted by his neighbors, who testified that he neither occupied nor slept therein, but that he occupied and slept in the new house, upon which he received his insurance from another company. Considering these facts and circumstances, we think the referee and court were fully warranted in the conclusions reached, and that the preponderance of the evidence upon this question is with the defendant company, and that the agents of the company never told the plaintiff that his claim would not be paid as alleged in the complaint. The policy of insurance is the contract between the insurer and the insured, upon which the latter must rely for the recovery of his loss. In the case at bar, the application 18 for an insurance of the building while occupied as a family dwelling, and this application is referred to in the policy as the foundation upon which it must rest, and it thereby becomes a warranty of the insured that the building will be occupied in that manner. 1 Wood, Ins. § 156. The policy provides that, if the building shall be or become vacant for 10 days without the consent of the company, the policy shall become void. In Insurance Co. v. Mehlman, 48 Ill. 313, the policy provided that it should be vitiated by keeping saltpeter, * and, upon proof that the insured kept a keg of saltpeter for sale, it was held that "whether saltpeter will explode or not may be a vexed question, and whether dangerous or not is immaterial. The agreement was that the assured should not keep it, and, if he did, the policy should be vitiated, and he must be held to the agree ment." The agreement entered into was that the building should be occupied, and that, if it became vacant for 10 days, the policy should be vold, and the insured must be held to this agreement, which was a part of his warranty. Proof of loss, as provided in the terms of the policy, is a condition precedent to recovery, (2 Wood, Ins. § 436;) and, since the plaintiff did not make it within the time prescribed, he waived his claim thereto, and for these reasons the decree is affirmed.

RECTOR, ETC., OF ST. DAVID'S CHURCH v. WOOD. (Supreme Court of Oregon. July 17, 1893.) SPECIFIC PERFORMANCE-CONTRACT TO FURNISH BUILDING STONE-INCIDENTAL RELIEF.

Defendant agreed to furnish the necessary stone for a church building to be erected by plaintiff, and to perform the masonry work, but after doing two-thirds of the work, and being paid a much larger proportion of the stipulated price, became insolvent, and was unable to perform his contract. The stone required was of a peculiar kind and color, and could be procured only from defendant's quarry, and to use other stone to complete the building would destroy its beauty and harmony. Held, that defendant should be compelled to furnish the stone necessary to complete the building, and to permit plaintiff to enter on his premises to pro

eure such stone, and to use his derricks at the quarry and the church building in quarrying, transporting, and raising the stone.

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

Specific performance by the rector, wardens, and vestrymen of St. David's Church against Frank Wood and another. From a decree for plaintiff, defendant Wood appeals. Affirmed.

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

This is a suit to enforce the specific performance of a written contract under seal. The facts show that the plaintiff is the owner of certain real property in Portland, Or., upon which it is desired to erect a church building; that the defendant Frank Wood is the owner of a stone quarry in Benton I county, Or., and that on May 16, 1892, the parties entered into said contract whereby the defendant agreed to furnish the necessary stone from his quarry, to dress, transport, cut, and lay the same in the walls of said building, furnish other necessary material, perform the mason work, and complete the same within 100 working days from June 5, 1892, for the sum of $16,500, payable from time to time as the work progressed, with the express agreement that plaintiff might withhold 25 per cent. of the amount found due upon the certificate of the architect until 30 days after the full completion of the contract, and, to secure the faithful performance of the conditions thereof, he executed and delivered to plaintiff a bond in the sum of $4,000. Plaintiff alleges that it duly performed all the conditions of said contract, paid defendant more than $16,200 thereon, although not more than two-thirds of the stone work has been done; that the defendant has ceased to work thereon; that the stone from said quarry is of a peculiar color and quality, and that plaintiff is unable to complete said church in a suitable manner with stone from any other known source; that, after the construction of said church was commenced, the defendant executed a mortgage on said quarry to secure a pre-existing debt of $3,000; that there are other outstanding claims against the defendant on account of said church building; that liens have been filed thereon, and that defendant is insolvent; that unless the defendant is required to furnish the stone necessary to complete said building, or if plaintiff is compelled to purchase the same, it will require then an expenditure of from $6,000 to $11,000 more than the amount of said bond; that plaintiff has paid the cost of quarrying, transporting, and dressing a quantity of stone from said quarry, which defendant is seeking to remove without plaintiff's consent, and that he is also endeavoring to sell and convey said quarry, and refuses to perform his said contract; that the defendant Virgil E. Watters is the recorder of eonveyances of Benton

county, and custodian of the records thereof, and that if any mortgage or other conveyance of said quarry or of the stone there in, or that was taken therefrom for plaintiff's use, be made by the defendant, and recorded in said county, it would cause irreparable damage to the plaintiff, for which it would have no adequate remedy at law. The plaintiff prayed that said contract might be specifically performed, and the defendant ordered to furnish the stone and mason work, as therein required, or that, if he could not perform the contract, he be compelled to furnish the plaintiff the necessary stone from said quarry for the completion of said building free of charge, and that he be restrained from incumbering, conveying, or interfering with the premises on which the quarry is situated, or with any stone therein or taken therefrom for plaintiff's use, and that the recorder of conveyances be enjoined from receiving, filing, or recording any mortgage, deed, or other conveyance of the said premises, and for general relief. A temporary injunction was issued as prayed for in the complaint. The defendant Virgil E. Watters made default, but the defendant Frank Wood demurred to the complaint, alleging as ground thereof that the court had no jurisdiction to compel the performance of the contract to build, or the required manual service, or to compel the defendant to furnish the stone free of charge. That there is a defect of parties, in this: that one Virgil E. Watters, a mere ministerial officer, who has no interest in the subject-matter of the suit, and who is not shown to have done or threatened to do any act tending to render any decree ineffectual, is joined as a defendant. That two causes of suit are improperly joined, viz. to compel a specific peformance, and to convert the defendant Wood into a trustee of his own property for plaintiff's benefit. And that said complaint does not state facts sufficient to constitute a cause of suit. The court overruled this demurrer, and, the defendant Frank Wood refusing to answer further or plead, it was decreed that the said written contract be specifically performed or enforced to the extent that said Frank Wood be required to furnish the stone from his quarry necessary to fully carry out and complete said contract, and that the plaintiff, by its officers, agents, and employes, be authorized and permitted to enter upon the premises of defendant Frank Wood, and quarry, in such manner as is or may be usual or customary, the stone necessary to fully complete said church building, and to remove a sufficient quantity thereof from said quarry for that purpose; that plaintiff be permitted to use the defendant Wood's derricks at the quarry and at the church building in quarrying, transporting, and raising said stone until the further order of the court,-from which decree the defendant Wood appeals.