does not appear from the testimony that Erickson had made any attempt to sell his outfit, even if it could possibly be conceded that he did not have the right to do so while a contest was being waged between him and the respondents over a disputed account. The only testimony in regard to the sale, or attempted sale, at all, is that two offers were made to Erickson for the outfit, and both were refused by him. on account, which Erickson refused to allow | and was seen by their employés. So that it him to do; that he also made Erickson deliver up to him groceries which he had furnished him, to the amount of $80, which he credited on the account. He states in conclusion that he does not know personally that Erickson tried to sell his property to anybody else. The only other testimony in relation to Erickson was that of one McAlpin, who stated that he rode up to Erickson's camp and asked him if he wanted to sell his outfit, and that Erickson said he would sell, and that he thought it was worth $800; that he told him that he did not think it was worth that much, and rode away; that at that time Erickson was packing and loading to move; the witness concluding with the statement: "This is all I know about his trying to sell his property." The other testimony is in relation to Lawrence, who had left camp, taking with him his own part of the outfit, which had been attached in Franklin county and afterwards released, so that it has no bearing on the question for determination here. On this showing the plaintiffs rested, and Erickson testified. He denied the indebtedness to respondents in toto; but claimed that there was a balance due him on their The testimony in our opinion being wholly inadequate to warrant the issuance of the writ, we think the court erred in refusing to dissolve the attachment, and the judgment will be reversed and the cause remanded witn instructions to sustain the appellants' motion to dissolve the attachment. RUDKIN, C. J., and PARKER, MOUNT, and CROW, JJ., concur. REESE et ux. v. WESTFIELD et al. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88. 153, 154; Dec. Dig. § 93.*] Department 1. Appeal from Superior Court, Yakima County; E. B. Preble, Judge. Action by George W. Reese and wife against Simon P. Westfield and others. From a judgment for defendants, plaintiffs appeal. Affirmed. transaction, and that Duffy offered to buy his time of the essence and calling for payment by Where land is sold under contract making horses and give him credit on their account installments under penalty of forfeiture for nonfor $700, which he refused. But it must be payment, and every installment has been paid borne in mind that this account was disputed except the last, which is not paid at the time by Erickson, so that there was nothing strange he has agreed to perform some act necessary to fixed, the vendor may declare a forfeiture, unless in the fact that he refused to sell the out- complete his contract as the giving of an abstract fit to the respondents and allow them to give or the tender of a deed, in which case his right him credit on their account. It is not disput-perform; the vendor's duty to tender performto forfeit depends on his offer and ability to ed that Duffy offered Erickson work, and ance being concurrent with the purchaser's duty that he refused to work for Duffy any fur- of making final payment. ther. Neither is this surprising, considering the feeling that existed between the parties at that time over the matters in controversy between them. The only difference in the testimony of Duffy and Erickson is that Erickson said that he told Duffy that he would take $1,000 for the outfit, instead of $1,200 as Duffy testified. Erickson also testified that he had no further occasion to stay in the camp; that he had quit work; that it was costing him a good deal to keep his horses there, and he wanted to go where he could get something to do; that he really did not want to sell his team, although he would CHADWICK, J. This appeal involves only have done so if he could have got his price, one question of law. In November, 1903, but that he rather preferred to buy horses as plaintiff George W. Reese entered into an he was in the contracting business and want- agreement in writing, whereby he agreed to ed horses to work with; that, after he had sell to defendant Simon P. Westfield certain packed up, he took his outfit about a mile and lands at Sunnyside, in Benton county. The a half to the farm of his sister-in-law, for contract was the usual time contract for the the purpose of doing some work for her in sale of lands, and provided for the payment grading and leveling, and that he was en- of the purchase price in installments; gaged in such work when the attachment was last payment becoming due May 1, 1907. served; that his camp was about three-fourths Defendants Milton and Door have succeeded of a mile from the camp of the respondents, to the interests of Westfield. A request for and that, when he moved, he did so between an extension of time was asked after the 10 and 11 o'clock in the forenoon, and went last payment had become due, but was redirectly through the camp of the respondents,fused. On October 1, 1907, a forfeiture was William B. Bridgman, for appellants. Stephen E. Chaffee and Roberts & Udell, for respondents. declared, and this action was begun to recover possession of the property. The contract contained the following clause: "Time is the essence of this contract, and, in case of failure of the said party of the second part to make either of the payments or perform any of the covenants on his part, this contract shall be forfeited and determined at the election of the said party of the first part; and the said party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said parties of the first part in full satisfaction and liquidation of all damages by them sustained; and they shall have the right to re-enter and take possession of said land and premises and every part thereof. The parties of the first part hereby agree to give an abstract of title to said lot, continued to the date of delivery of deed to second party." The court made, among others, the following finding: "That the two last payments above mentioned (being intermediate payments) were made subsequent to the time on which they became due, and were accepted by the plaintiffs." This forbearance, coupled with the time elapsing between the 1st of May, 1907, and the 1st day of October, 1907, might possibly bring this case within the rule of Douglas v. Hanbury, 104 Pac. 1110, but the facts are not before us, and for the sake of security in our judgment of the case we have deemed it best to meet the main contention upon which appellant relies to defeat the judgment of the court below. The question is whether a forfeiture can be declared as against a purchaser who had met all payments under his contract except the last payment, when the contract provides for the giving of an abstract and delivery of the deed. Appellant seeks to distinguish the case of Stein v. Waddell, 37 Wash. 634, 80 Pac. 184, upon which he says the judgment of the lower court was based, saying: "In the case of Stein v. Waddell the seller had accepted a portion of that last payment which was in default after default was made, and then a few days later declared the forfeiture." But the decision in that case was not made to depend alone upon the payment of a part of the last installment. It rested in the stronger equity that the agreement to tender a deed was mutual, concurrent, and dependent upon the payment of the last installment due on the purchase price. This rule was there said to be firmly established by the authorities. 29 Am. & Eng. Enc. Law, pp. 686, 687. Such contracts are mutual and dependent when it appears that the payment and delivery of the deed are to be made at the same time. 29 Am. & Eng. Enc. Law, 689. It is contended that the broad rule laid down in Stein v. Waddell, was explained by the later cases. Voight v. Fidelity Investment Co., 49 Wash, 612, 96 Pac. 162, Garvey v. Barkley, 104 Pac. 1108, and Sleeper v. the first case it was pointed out that there was no obligation to tender a deed until all the payments had been made, and that the last payment was not due until two years after the commencement of the action to forfeit the contract. The point here involved was not before the court. In the second case the purchaser had wholly failed to perform the conditions of his contract, and forfeiture had been promptly asserted. In Sleeper v. Bragdon the purchaser had made default and obtained an extension under an understanding that, if payment was not made within the time given, the forfeiture would be insisted upon. She was notified in advance that the vendor had elected to forfeit the contract, and she knew that, by her own act in failing to meet the extended payment, the cancellation of the contract was completed, and that she was not entitled to any further consideration or notice. Notwithstanding this she sought to tender the amount due, and demanded performance. The court held, and properly considering the facts of the particular case, that her rights had ceased. The cases really in line with the case of Stein v. Wadell are Bruggemann v. Converse, 47 Wash. 581, 92 Pac. 429, and Tacoma Water Supply Co. v. Dumermuth, 51 Wash. 609, 99 Pac. 741. In the first case it was said: "The appellants, not having complied with the requirements of the contract in tendering a deed which was by the terms of the agreement made a condition precedent to receiving the purchase price, will not be heard to complain that the other party to the contract has violated its conditions." In the latter case, after citing Stein v. Waddell and other cases, the court said: "Under the above authorities, the respondents could only claim a forfeiture and put the appellant in default by tendering a deed and demanding payment of the purchase price, and this they failed to do." If the case of Stein v. Waddell and the succeeding cases to which we have referred have been hitherto misunderstood, we desire now for the sake of certainty to lay down the rule that where land is sold under a time contract calling for payment by installments, and every installment has been paid except the last one, the vendor may, if he act with reasonable promptness, declare a forfeiture, unless by the terms of the contract he has agreed to perform some act necessary to the complete performance of his agreement, as, for instance, the giving of an abstract or the tender of a deed, in which event his power to forfeit depends upon his offer and ability to perform; for, as this court has said, his duty to tender performance depends upon, and is concurrent with, the duty of the vendee to meet the final payment. While we admit that the conditions providing for forfeiture in contracts of this character are usually held to be for the benefit of the vendor, and we have been hitherto, and are now, willing to give the vendor contract, and say that all payments prior to the last payment are conditions precedent, we have no sympathy with the holding of some courts to the effect that the whole duty is upon the purchaser, and, unless he tenders the last payment, the vendor is entirely released from any obligation to convey or tender conveyance. The covenants are independent so long as no duty is imposed on the vendor, but if any covenant puts both parties to action and concurs in time, it must be held to be dependent and concurrent. It seems that the logical sequence of the rule allowing a forfeiture for intermediate payments without tender of performance is that the last payment should not be forthcoming until the abstract and deed are tendered, when it is so provided in the contract; for it is primary law that a failure of title will relieve the vendee. Warvelle on Vendors, 813. There is nothing in the assertion that any other rule will interfere with, or destroy, or invite a breach of, the contract as the parties have made it. What we have undertaken to show is that a tender of performance when stipulated in the agreement, as well as a tender of payment, is a part of the contract. The two engagements make the contract. The one is dependent on the other. Carrico & Durk, for appellant. Shorett & Shorett, for respondents. PARKER, J. The appellant commenced this action in the superior court to recover from respondents the sum of $2,000 alleged by him to be due upon a promissory note executed and delivered to him by respondent Frank W. B. Morris on January 29, 1908. in payment of 8,000 shares of the capital stock of the Geminoid Manufacturing Company, a corporation, on that day sold and issued to him by appellant acting in behalf of said company as its president and general stock sales agent. The respondents by their answer pleaded as a defense, want of consideration, and fraudulent representations made to respondent Frank W. B. Morris by appellant at the time inducing the purchase of the stock and giving of the note. A trial before the court without a jury resulted in findings and judgment in favor of defendants, from which plaintiff has appealed to this court. The record shows that, while the note was executed to appellant as payee, he was in the original transaction, and is in the prosecution of this cause, acting for the company. Upon the question of want of consideration and fraudulent representations the court found as follows: "That there was no con The judgment of the lower court is af- sideration for said note except the issuance firmed. RUDKIN. C. J., and FULLERTON, RIS, and GOSE, JJ., concur. of certain shares of stock, which were tendered back to said plaintiff and to said com MOR-pany, and the following representations were CUNNINGHAM v. MORRIS et ux. (Supreme Court of Washington. Dec. 15, 1909.) 1. CORPORATIONS (§ 92*) - SUBSCRIPTION TO STOCK-NOTES FOR PRICE-WANT OF CONSID ERATION. Where the purchase of corporate stock was induced by false representations by the president, as to the condition of the corporation's affairs, neither such president, nor the corporation, can recover on notes given for the price of such stock. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 92.*] 2. CORPORATIONS (§ 92*) - SUBSCRIPTION TO STOCK NOTES FOR PRICE - ESTOPPEL TO DENY VALIDITY. Statements printed in small type in the order for the purchase of corporate stock do not estop the purchaser to defend an action on notes given for the price of the stock, on the ground that the purchase was induced by false representations, and that the stock is worthless, though they technically may admit facts contrary to those proven. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 366; Dec. Dig. § 92.*] Department 2. Appeal from Superior Court, King County; Arthur E. Griffin, Judge. Action by G. H. Cunningham against Frank W. B. Morris and Alice B. Morris, his wife. Defendants had judgment, and plaintiff appeals. Affirmed. made to the defendant Frank W. B. Morris by the plaintiff, who was then acting as agent of said corporation: That the company was engaged in the manufacturing business in this city; that it owned its own factory site; that it was about to erect a factory on said site for the purpose of manufacturing said goods; and that the company was on a sound financial basis and had abundance of money back of it to carry out said plans. That said representations were false and known to be so by the plaintiff at the time. That the company was not engaged in the manufacturing business in this city, and it never engaged in the manufacturing business as aforesaid at any time or in any place. That it did not own its factory site then and had never owned a factory site in King county. That it did not erect a factory on said site and did not erect a factory on any other site for the purpose of manufacturing rubber goods. That the company was not on a sound financial basis then and never has been able to carry out its plans. That the defendants were ignorant of the fact, and believed and relied upon said representations and were thereby induced to purchase said stock and give said note; it being understood and agreed that unless the purposes for which the company was organized, namely, the building of a factory and the manufac law. [Ed. Note.-For other cases, see Property, Cent. Dig. § 9; Dec. Dig. § 7.*] 2. SUBROGATION (§ 1*)-RIGHT TO REMEDY IN GENERAL. turing of goods were not carried out within | manner or by any method sanctioned by the a period of 60 days, then said note was to be returned to said defendants, and they were to turn over said stock and the agreement between said parties to be null and void and of no effect. That, when said Frank W. B. Morris learned that said company was a fraud and had no factory site, he tendered back his stock, and demanded the cancellation of said note, and, upon refusal to take said stock and return said note, he tendered said stock into the court for the benefit of said plaintiff and company." From which it concluded there was no consideration for the execution of the note. These findings were excepted to by appellant; but a careful reading of all the evidence convinces us that they are all abundantly supported thereby. Indeed, a statement of the bare ultimate facts in the conventional form of legal findings seems ill suited to the telling of the true story revealed by this evidence. The graphic language of fiction would be more appropriate to the subject. We do not have before us the articles of incorporation of this company showing the object of its organization, which probably state some lawful purpose; but from this evidence it is plain the trial court was fully justified in characterizing the company and its business as a fraud. Appellant contends that respondents are estopped to defend against this note upon the ground of want of consideration and fraudulent representations inducing its execution in payment of the stock, because of certain statements in the printed form of order or application therefor furnished by Cunningham and addressed to the company, signed by respondent Frank W. B. Morris, at the time, which it is contended constituted the entire contract of purchase of the stock. We think, however, in view of all the facts and circumstances disclosed by the evidence, respondents were entitled to invoke this defense, which is so fully proven, notwithstanding there are statements in the signed order, embodied in paragraphs of much finer print than other portions thereof, which technically construed might be deemed an admission of facts contrary to those here proven in support of this affirmative defense. The judgment of the The judgment of the learned trial court is eminently just. It is affirmed. where a party who has an interest in property, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*] 3. MORTGAGES (§ 436*)-FORECLOSURE-INTER- The owner of a half interest in mortgaged property, whose interest was acquired after suit due on the mortgage was refused by plaintiff, to foreclose, and whose tender of the amount had a right to intervene under the maxim that a court of equity having acquired jurisdiction of the property will do justice as between the parties interested therein. Cent. Dig. § 1289; Dec. Dig. § 436.*] 4. SUBROGATION (§ 40*) - FORECLOSURE OF ENFORCEMENT OF It was unnecessary for the owner of a half interest in mortgaged property acquired after suit to foreclose to further prosecute an independent suit to compel plaintiff to accept its tender of the amount due without dismissing the foreclosure suit and satisfying the mortgage lien, as the money might have been paid into court without the formal declarations of a tender, and the court would have been warranted in making such orders as might be necessary to protect such half owner. [Ed. Note.-For other cases, see Subrogation, Cent. Dig. § 109; Dec. Dig. $ 41.*] RUDKIN, C. J., and DUNBAR, CROW, 6. SUBROGATION (§ 35*)-Loss OF RIGHT—EFand MOUNT, JJ., concur. (MERCANTILE INVESTMENT CO., Intervener). (Supreme Court of Washington. Dec. 16, 1909.) 1. PROPERTY (§ 7*)-INTEREST IN REAL PROPERTY-RIGHT TO PROTECT. MURRAY v. O'BRIEN et al. One who has a valid and subsisting interest in real property has a right to protect it in any FECT OF SATISFACTION OF DEBT. A satisfaction of the debt by plaintiff on payment of the amount due by the owner of a half interest in the mortgaged property acquired after suit to foreclose would not destroy the right of subrogation, as the court has jurisdiction of the property with power to enter an order recognizing the subrogation, for it is not created by the order, but follows as the legal consequence of the acts of the parties. [Ed. Note. For other cases, see Subrogation, Cent. Dig. §§ 107, 108; Dec. Dig. § 35.*] 7. TENDER (§ 11*)-MATERIALITY OF SOURCE OF MONEY OFFERED. When and on what terms a party obtained money to make a tender is of no concern of the person to whom the tender is made, as the law does not give him the right to reject an offer because he objects to the source from which it comes. [Ed. Note.-For other cases, see Tender, Cent. Dig. 20; Dec. Dig. § 11.*] 8. MORTGAGES (§ 302*)-EFFECT OF TENDER AS DISCHARGING MORTGAGE LIEN-NECES- A tender of the amount due on a mortgage on law day, which by construction has been extended to any time before suit brought to foreclose, discharges the lien, and, having been so made, the tender need not be kept good by bringing the money into court, but the reason for the rule ceases when an action is instituted to recover the debt, and it should not be applied except in those cases where at common law a party was entitled to a discharge of a lien by payment or tender of payment inter partes before or on law day which continues only to the time of issuance of the writ, or, under the code practice, till commencement of the action. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 887; Dec. Dig. § 302.*] 9. MORTGAGES (8 302*) "FORECLOSURE” "LAW DAY." "Foreclosure" and "law day" are synonymous in the sense that it is the time when the mortgagor declares a default and submits his case to a court of competent jurisdiction. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 887; Dec. Dig. § 302.* For other definitions, see Words and Phrases, vol. 5, p. 4023.] 10. MORTGAGES (§ 302*)-TENDER EFFECTING A DISCHARGE OF LIEN-MEANING OF "FORE CLOSURE." The word "foreclosure," as used with reference to the rule under which a mortgage is discharged by a tender before foreclosure, must be taken in the meaning which is commonly and generally accepted by the laity, as well as by the bar; that is, the institution of a suit, or the "law day," as contradistinguished from the "law day" of the common law. its complaint in an independent suit to compel Cent. Dig. §§ 882-887; Dec. Dig. § 302.*] While at law the rule that a tender must be kept good is well nigh universal, it is not so in equity, and a willingness to pay may be sufficient. [Ed. Note.-For other cases, see Tender, Cent. Dig. §§ 55-58; Dec. Dig. § 18.*] 14. INTEREST (§ 50*)-SUSPENSION-TENDERPAYMENT INTO COURT. Independent of Ballinger's Ann. Codes & St. §§ 5176, 5177 (Pierce's Code, §§ 1113, 1114), providing that money may be paid into court and thus arrest interest and costs, the courts will apply the rules of equity when necessary to do equal justice between the parties. Cent. Dig. § 114; Dec. Dig. § 50.*] [Ed. Note.-For other cases, see Interest, 15. EQUITY (§ 66*)-NECESSITY OF DOING BY PARTY SEEKING. Plaintiff who is seeking equity must do equity. [Ed. Note.-For other cases, see Equity, Cent. Dig. 88 188-190; Dec. Dig. § 66.*] 16. INTEREST (§ 50*)-SUSPENSION-TENDerPAYMENT INTO COURT. Where the owner of a half interest in mortgaged property went into court averring its Willingness to pay all that was due the holder of the mortgage which was followed by an unconditional tender, though not in court as it should have been to discharge the lien, and by an unwarranted refusal to accept with the hope apparently of gaining some advantages over such owner, in equity, the holder of the mortgage should not claim anything for the use of the money, and he is estopped to claim interest from the date of the tender. [Ed. Note.-For other cases, see Interest, [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 114; Dec. Dig. § 50.*] Cent. Dig. § 887; Dec. Dig. § 302.* For other definitions, see Words and Phrases, vol. 3, pp. 2878-2880.] 11. MORTGAGES (§ 302*)-RULE AS TO TENDER DISCHARGING LIEN-AVAILABILITY TO ONE SEEKING AFFIRMATIVE RELIEF. The rule that a mortgage lien is discharged by a tender of the mortgage debt is not available to one seeking affirmative relief in a suit to foreclose, as in a case where it is sought to cancel the mortgage debt under such rule which is not to be carried to such an extent. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 886; Dec. Dig. § 302.*] 12. MORTGAGES (§ 302*)-TENDER OF AMOUNT DUE AFTER SUIT TO FORECLOSE-OPERATION AND EFFECT. An unconditional tender of the amount due 17. TENDER (§ 15*)-LAW OF TENDER AS BENEFITING BOTH DEBTOR AND CREDITOR-ESTOPPEL. The law of tender is as much for the benefit of the debtor as the creditor, and a creditor cannot refuse a tender believing it to be to his advantage to do so, and thereafter insist that an unqualified tender has not been made good. [Ed. Note.-For other cases, see Tender, Cent. Dig. § 41; Dec. Dig. § 15.*] Department 1. Appeal from Superior Court, King County; John F. Main, Judge. Suit by James A. Murray against Terrence O'Brien, administrator of John Sullivan, deceased, and others, in which suit the Mercantile Investment Company intervened. From a decree in favor of intervener, plaintiff appeals. Reversed. on a mortgage made by the owner of a half interest in the mortgaged property acquired after suit to foreclose cannot be measured by two qualified or conditional tenders immediately pro Trumbull & Trumbull, for appellant. James ceding it, but the law day having been declared B. Howe, for respondent Investment Co. by institution of the foreclosure suit, wherein such owner appeared as a party, its tender can, and should in the interest of equity which shuns a forfeiture, be measured by the prayer of matters in controversy between plaintiff and CHADWICK, J. This appeal involves only |