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ried woman, in respect to her separate property, labor or services, shall not be binding upon her husband, nor render him nor his property liable therefor; but she and her separate property shall be liable on such contracts in the same manner as if she were sole.

"Sec. 255. A married woman may make a will in the same manner and with the same effect as if she were sole, except that such will shall not, without the written consent of her husband, operate to deprive him of more than two-thirds of her real estate, or more than two-thirds of her personal estate.

"Sec. 256. A married woman may make contracts, oral or written, sealed or unsealed, and may waive or relinquish any right or interests in any real estate, either in person or by attorney, in the same manner, to the same extent and with the like effect as if she were a single woman.

"Sec. 257. No estate is allowed the husband as tenant by courtesy upon the death of his wife."

Montana Code Civil Procedure:

"Sec. 3452. In this state there is no common law in any case where the law is declared by the Code or the statute; but where not so declared, if the same is applicable and of a general nature, and not in conflict with the Code or other statutes, the common law shall be the law and rule of decision."

Montana Civil Code (Comp. St. 1887): "Sec. 221. A full and complete inventory of the separate personal property of the wife may be made out and signed by her, acknowledged or proved in the same manner required by law for the acknowledgment or proof of a grant of real property by an unmarried woman, and recorded in the office of the county clerk of the county in which the parties reside."

"Sec. 1439. That from and after the passage of this act women shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman which her husband does as a man; and for any injury sustained to her reputation, person, property, character, or any natural right, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband has to appeal in his own name alone."

It is urged that it does not appear that Mrs. Dabney filed the inventory mentioned in these statutes, and that therefore she cannot escape liability with her husband upon the indebtedness evidenced by this note. It appears, however, that sections 221 and 222 have been held by the Supreme Court of Montana to be repealed, and consequently that portion of section 227 referring to sections 221 and 222 would be without virtue. Kelley v. Jefferis, 30 Mont. 170, 32 Pac. 753; Lambrecht v. Patten, 15 Mont. 260, 38 Pac. 1063.

As Montana has no community-law system, and as the indebtedness for which this note was given was not for the necessaries mentioned in section 227, we think, in the light of the other sections quoted from the statutes of that state, that Mrs. Dabney is not liable upon this note.

It is suggested by respondent that, if the case should be reversed, this court should remand the same with directions to permit the defendants to offer proof of the "first affirmative defense contained in the answer of Joseph B. Dabney," that we should pass upon the question of whether said "first affirmative defense" constitutes a legal defense. On account of the condition in which the record comes here, we are unable to do this. The answer appearing in the record sets forth what it calls defendant's "first affirmative defense," and contains no other affirmative defense. The first portion of said "first affirmative defense" alleges facts which it is claimed constitute usury. This defense was waived upon the trial. No demurrer or motion or ruling thereupon appears in the record.

The judgment of the honorable superior court is affirmed as to Louise E. Dabney, and reversed as to Joseph B. Dabney.

MOUNT, C. J., and DUNBAR, CROW, FULLERTON, and HADLEY, JJ., concur.

(44 Wash. 218) STATE ex rel. BARNES v. CITY OF BLAINE et al.

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(Supreme Court of Washington. Oct. 26, 1906.) MUNICIPAL CORPORATIONS DEBT VOID MUNICIPALITY-SPECIAL IMPROVEMENT WARRANTS RATIFICATION.

Special street improvement warrants of a void municipality cannot, after the legal creation of the municipality, be ratified by it by the issuance of funding bonds, so as to convert the liability from that of a special indebtedness to a general one, enforceable against all the taxpayers.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 34-39, 684, 881, 1859.]

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Mandamus by the state, on the relation of Martin D. Barnes, against the city of Blaine and others to compel the levy of taxes to pay certain bonds. From an order dismissing the action, relator appeals. Affirmed.

Newman & Howard, for appellant. G. H. Westcott, for respondents.

ROOT, J. Relator instituted this proceeding to compel the city of Blaine and its officers to require the levy of taxes sufficient to pay certain interest coupons aggregating in amount $6,150, and to thereafter each year levy upon the taxable property of said city, in addition to the tax for other purposes, a sufficient sum to pay interest on each of certain bonds described in relator's affidavit,

and to provide a sinking fund sufficient to pay the bonds at maturity. Respondents answered, admitting most of the allegations in relator's amended affidavit, and setting up a separate affirmative defense, to which relator demurred. The court overruled the demurrer, and relator declining to amend or plead further, the court dismissed the proceeding. From the order overruling the demurrer and dismissing the action, relator has appealed to this court.

In May, 1890, the town of Blaine was incorporated as a municipal corporation of the fourth class under the provisions of the act of March 27, 1890, and included within its area three square miles, nearly one-half of which was unplatted. The town at once assumed all the duties and exercised all the powers incident and belonging to municipal corporations of that class. Among other acts which it performed was the opening, grading and sidewalking of streets and avenues: such improvements being confined to about onesixth of the area of the town as defined by its boundaries. On March 4, 1891, in a suit in the nature of quo warranto proceedings, instituted by the Attorney General against said town and its acting officers, the incorporation was declared "illegal," and the act of the board of county commissioners in incorporating it "null and void." for the reasons, among others, which were enumerated in the judgment rendered therein, "that it contained an area of more than one square mile" and "more than 40 acres of unplatted land." On May 4, 1891, following entry of the decree in the suit just referred to, the present city of Blaine was incorporated; the boundaries of which comprised the same territory that had been known as the "Town of Blaine" except a narrow strip along the entire northern boundary containing about 120 acres, which area had been a part of the town of Blaine, but did not, and does not, form any portion of the territory of the city of Blaine. During the time the town of Blaine assumed the duties and exercised the powers of a municipal corporation of the fourth class, warrants were issued in payment of municipal expenses, including street crossings, aggregating $18,000, which which warrants were drawn in the usual form of municipal warrants, and signed by the clerk and the mayor, and made payable from the general fund of said town; also warrants were issued in payment for street improvements, and payable from a special fund designated according to the name of the street upon which the consideration for the warrant had been expended, aggregating $96,000; assessment districts being created in each case, and assessments being made for the cost of such improvement. In November, 1891, the city of Blaine enacted an ordinance known as "Ordinance No. 41" providing for the calling of an election to ratify and assume the indebtedness of the former "town of Blaine and the present city of Blaine," aggregating, as stated in Ordi

nance No. 41, "$63,700, and accrued interest." This sum was intended to include, and did include, all the unpaid warrants issued by the "Town of Blaine," not only such warrants as were issued for general municipal purposes, and payable from the "general fund." but all the warrants issued by the "Town of Blaine" for street improvements, and payable from special street improvement funds. At the same time, Ordinance No. 41 was adopted; there was also an ordinance adopted by the city of Blaine known as "Ordinance No. 40," providing for the calling of an election, and submitting to the electors the proposition to "borrow $70,000 for the municipal purpose of funding the indebtedness of the present city of Blaine and the former town of Blaine, and to issue its negotiable bonds," etc. Both of these ordinances were passed by the city counsel at a special meeting called for that purpose. The election to vote upon the propositions contained in ordinances numbered 40 to 41, was held on December 7. 1891, and all the propositions contained in both ordinances were carried by more than the necessary three-fifths vote of the electors voting at such election. At the time this election was held, instead of the total amount of indebtedness, as described in said ordinances, being, as stated therein, $70,000, it was in fact $85,000, a sum $15,000 in excess of 5 per cent. of all the taxable property in the city of Blaine, as ascertained by the last assessment for municipal purposes. In June. 1892, the council of the city of Blaine passed Ordinance No. 44, authorizing the issuance of the funding bonds, the subject of this suit. On each of these funding bonds was printed an act of the Legislature of the state of Washington (chapter 128, p. 261, Laws Wash. 1891) and Ordinance No. 40, and specifically made a part of each of such funding bonds. Between September 30, 1893, and January 5, 1894, the mayor and clerk of the city of Blaine delivered these funding bonds to the holders of the warrants described in Ordinance No. 41, in exchange for such warrants at par, until $66,600 of the $70.000 had been so delivered. The city of Blaine did not receive any consideration for the $66,600 funding bonds so exchanged, except the warrants described in said Ordinance No. 41, which were in fact practically all the special street improvement fund warrants issued by the town of Blaine. The total valuation of all taxable property of the city of Blaine, at the date of the election, when it attempted to assume and ratify the indebtedness of the former town of Blaine and authorized the issuance of the funding bonds to pay such indebtedness, as ascertained by the last assessment for general municipal purposes, was the sum of $1,412,513; at which time the total amount of unpaid taxes due said city was $4.260, with no funds on hand. The total valuation of said city when said funding bonds were issued, as ascertained by the last assessment for general municipal

purposes, was $738,162, and, on the date when the said bonds were exchanged for town of Blaine warrants, such valuation was $452,250.

We think this case is controlled by the principles announced by this court in the case of State ex rel. Security Savings Society v. Moss, Treasurer of the Town of Medical Lake (decided September 26, 1906) 86 Pac. 1129. Upon the authority of that case, the judgment of the trial court herein is affirmed.

MOUNT, C. J., and CROW, DUNBAR, HADLEY, FULLERTON, and RUDKIN, JJ.,

concur.

(44 Wash. 222)

LISTER et al. v. CITY OF TACOMA et al. (Supreme Court of Washington. Oct. 26, 1906.) 1. MUNICIPAL CORPORATIONS - LOCAL IMPROVEMENTS - EXPENSE - PAYMENT IN INSTALLMENTS-DIRECTION OF COUNCIL-TIME. Pierce's Code, § 3754 (Laws 1899, p. 334, § 2). provides that the city council directing a local improvement at the expense of benefited property may ordain whether payment shall be made in one sum or by installments, etc. Held that, under such section, the city council was authorized to direct whether the expense should be paid in one sum or by installments at any time before an assessment was made for the payment of the work.

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A city council passed a resolution to improve certain streets and to levy an assessment to pay for the improvement and to issue 7 per cent. bonds, payable in cash or in 10 annual installments at the option of the property owners. The ordinance, however, by a clerical mistake, provided for the issuance of bonds, payable in five annual installments, and after the contract for the improvement was let the mistake was discovered, whereupon another ordinance was passed amending the first, changing the installments from 5 to 10. The bids received were based on 10-year installments, all the bidders understanding that the payments were to be on the 10-year plan, as did also objecting property owners. Held, that the error was not prejudicial on the theory that, if the ordinance had provided for 10 installments, more favorable bids might have been obtained.

Fullerton, J., dissenting.

Appeal from Superior Court, Pierce County; Mason Irwin, Judge.

Action by Ernest Lister and others against the city of Tacoma and the Independent Asphalt Paving Company to enjoin the attempted levy of certain assessments against complainants' lots for street improvement. From a decree dismissing the bill, complainants appeal. Affirmed.

Boyle & Warburton, for appellants. C. M. Riddell, R. E. Evans, and J. W. Quick, for respondent city. A. R. Titlow and C. D. Eshelman, for respondent company.

DUNBAR, J. This is a street improvement case from the city of Tacoma. The facts are conceded. The contention is that the facts found do not sustain the conclusions of law. Briefly, the city council of the city of Tacoma, on June 20, 1906, passed

a resolution of intention to pave and improve certain streets in said district including the property in question, and to levy an assessment against the property to pay for said improvements by issuing bonds at 7 per cent. interest, said bonds payable in cash or in 10 annual installments, at the option of the property holders. An ordinance was passed in conformity with the resolution. By mistake an old form was used, where the number of installments had been five instead of ten, and the clerk failed to change the word "five" to "ten." The bids were made in accordance with the notice given and other provisions of the city charter, and this was the only notice given to the bidders. After the same was regularly given and published, the Asphalt Pavement Company was awarded the contract for $56,473. After the contract was let but before it was executed, it was discovered that the ordinance and resolution of intention to improve did not agree, by reason of the mistake which we have mentioned above. The city council, after the discovery of said discrepancy, passed another ordinance amending the second section of the first ordinance by causing the time of the payments of the assessments to be changed from five annual installments to ten annual installments.

The contention of the appellants is that the city authorities had no right to enter into the contract for the payment of this work, by reason of the expressed difference between the resolution and the ordinance; and that the correction of the ordinance after the letting of the contract was without force or effect. We are unable to determine from the statutes or from the charter, at which time the city must determine the time of the payments to be made for work of this kind. Section 3754, Pierce's Code (Laws 1899, p. 334, § 2), provides: "The city council or other legislative body of such city ordering the making of a local improvement at the expense, in whole or in part, of the owners of property benefited, may ordain whether payment is to be made in one sum or by installments, and levy assessment upon the property benefited for its part, or the whole of the cost as the case may be." In the absence of a law providing the time and conditions under which the payment should be made, we must conclude that the city council would have authority to make it at any time before the assessment was made for the payment of the work, unless it appears that by reason of the failure to make it in advance of the submission for bids the property owners would be injured. In this case the contention is that the property owners may have been injured, for the reason that the bidders might have taken into consideration the length of the investments which they would obtain, and that an investment at 7 per cent. for 10 years might be considered preferable to an investment at 7 per cent. for 5 years; that the bidder would therefore take that in

to consideration in his bid, and that the prop-, erty holder might receive the benefit of such consideration in a lower bid. The facts found by the court are to the effect that this was a purely clerical error or mistake; that the bids were based upon 10 years; that all the bidders bidding on said work understood said payments to be on the 10-year plan instead of the 5-year plan; that all of the city officials, including the mayor, city council, city engineer, and commissioner of public works, so understood it; that the property owners in said district so understood it; that there were remonstrances filed against the doing of said work after the resolution of intention was passed; that said property owners thoroughly understood that the work was to be done upon a 10-year plan instead of a 5; and that said error was a purely clerical error. So, it is evident that no harm could have come to the bidders or to the city or to the property holders by reason of this mistake, because all the parties acted upon the theory that the ordinance did comply with the resolution, and that the 10-year payment plan was the plan which was considered by all parties. But, if we understand the appellants, it is contended that other bidders might have been prompted to make a lower bid than any that was submitted had they understood that the work was to be done on the 10-year plan. It seems to us, however, that this is a possibility too remote, especially when it is considered that the ordinance and the resolutions provide that the payments may be made at the option of the property holders either in cash or by yearly installments. So that there could be really no assurance to any bidder that his investment would be made for any length of time, even for one year. We think public policy would not be subserved by holding an assessment invalid for the irregularity which is complained of in this case. The judgment is affirmed.

MOUNT, J., and HADLEY, and RUDKIN, JJ., concur. FULLERTON, J., dissents. ROOT and CROW, JJ., took no part.

(44 Wash. 230)

SHERIDAN v. MODERN WOODMEN OF AMERICA.

(Supreme Court of Washington. Oct. 27, 1906.) 1. INSURANCE-MUTUAL BENEFIT INSURANCE -POWERS OF AGENTS.

The by-laws of a mutual benefit insurance association provided that no officer of any local camp was authorized to waive any of the provisions of the laws of the association; declared the clerk of the local camp to be the agent of such camp, and provided that no act on his part should have the effect of creating a liability on the part of the association. The by-laws provided for the giving of notice of assessments, and that a failure to pay any assessment should ipso facto work a suspension. After a member became insane, the mother of his minor child, who was the beneficiary, obtained an agreement from the clerk of the local camp that he would

notify her of assessments. Held, that such an agreement was not binding on the association, and it might rely on a forfeiture though the clerk failed to give the notice.

2. SAME -- ASSESSMENTS - EXCUSES FOR NONPAYMENT.

The insanity of a member of a mutual benefit insurance association is no excuse for his nonpayment of dues and assessments pursuant to the terms of his contract.

[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. insurance, § 1906.J

3. SAME FORFEITURE RIGHTS OF BENEFICIARY-WAIVER.

Where, under the by-laws of a mutual benefit insurance association and under the terms of a certificate issued to a member, he was required to pay assessments after notice and quarterly dues in advance without notice, and the clerk of the local camp erroneously refused to receive a tender of an assessment made by the mother of the infant beneficiary, but for 21 years thereafter the beneficiary and her mother, who had the certificate in her possession, took no steps to correct the error or to assert their rights under the certificate, the association was not liable thereon.

Appeal from Superior Court, Snohomish County; W. W. Black.

Action by Lulu L. Sheridan, by Tillie Hewitt, her guardian, against the Modern Woodmen of America. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded, with instructions to dismiss the action.

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CROW, J. Action by the plaintiff, Lulu L. Sheridan, by Tillie Hewitt, her guardian, upon a benefit certificate issued by the defendant to one Hiram D. Sheridan, now deceased. The certificate, which was issued April 19, 1900, named as beneficiary the plaintiff, Lulu L. Sheridan, minor daughter of Hiram D. Sheridan and Tillie Hewitt. At the date of the certificate Lulu's father and mother had been divorced, and her mother had subsequently married. The plaintiff contends that, during the month of December, 1901, while Hiram D. Sheridan was in good standing, he became insane; that in March, 1902, he was committed to an asylum where he remained until his death in June, 1904; that in December, 1901, on discovering such insanity, Tillie Hewitt, the plaintiff's mother, gave notice thereof by letter to the clerk of the defendant's local camp at Libby, Mont., advising him that, if Mr. Sheridan failed to pay his assessments, she wished to be noti-. fied so that she might pay for the benefit of her daughter; that, in response the clerk wrote Mrs. Hewitt that Mr. Sheridan's assessments were then paid in advance, that when further assessments became due he would notify her, and that he regretted to learn of the insanity of Mr. Sheridan; that the clerk afterwards failed to notify Mrs. Hewitt of assessment No. 1 for January, 1902; that Sheridan was suspended for its nonpayment; that by reason of the failure

of the clerk to notify Mrs. Hewitt, such suspension was void; that no subsequent notice was given Mrs. Hewitt; and that the certificate. therefore, remained in full force at the date of Sheridan's death. The defendant claims that due notice of assessment No. 1 for January, 1902, was given to the assured by the clerk of the head camp in the manner provided by the contract; that he failed to pay the same and became ipso facto suspended on February 2, 1902; that he was never reinstated; that no notice was given the defendant of the insanity of the insured prior to his suspension; that insanity is no excuse for nonpayment of assessments; and that the alleged notice of insanity and the clerk's alleged promise to inform Mrs. Hewitt of nonpayment conferred no rights upon the plaintiff, nor did they impose any duty upon the defendant. Prior to the commencement of this action, the plaintiff tendered to the defendant all dues and assessments which had matured between January 1. 1902, and June 1, 1901, amounting to $27.30. This tender was refused; the defendant denying liability on the certificate. On trial the jury found a verdict in favor of the plaintiff for $1.972.70, and from the judgment entered thereon. this appeal has been taken.

The appellant, with other assignments of error, contends that the trial court erred (1) in denying its motion for a nonsuit, and (2) in denying its motion for a directed verdict. The pleadings and evidence show that the appellant is a fraternal mutual benefit association, organized under the law of Illinois, with its head camp at Rock Island, and with numerous local camps throughout Illinois and other states; that it is organized on the lodge plan, having a ritualistic form of work, and also certain fraternal, social, and indemnity features. Hiram D. Sheridan was a member of the local camp at Libby, Mont. By the terms of his certificate, the appellant agreed in case of his death to pay to the respondent as beneficiary the sum of $2,000, subject to certain conditions therein stated; one of which was that if assessments against the assured should not be paid to the clerk of the local camp on or before the first of the month following the date of notice of the same, then the certificate should be null and void. The by-laws provided that every beneficial member who after notice should fail to pay any assessment on or before the first of the following month, or who should fail to pay dues in advance on or before the 1st day of April, July, October, or January, should ipso facto become suspended; that during such suspension his benefit certificate should be absolutely null and void; that a suspended member might be reinstated within 60 days upon payment of all arrearages, together with all fines, dues. and assessments maturing subsequent to default, provided that he was then in good health and furnished the clerk of the local camp a written certificate to such effect

signed by himself; that a beneficiary member in suspension for more than 60 days but less than six months, if in good health, might be reinstated upon furnishing a certificate of good health from the camp physician after medical examination duly approved by the head physician, and upon payment of all arrearages; that no officer of any local camp was authorized or permitted to waive any of the provisions of the laws of the society relating to the contract for the payment of benefits; that no officer of any local camp should have the right or power to waive any of the provisions of the by-laws of the society; that the clerk of the local camp was declared to be the agent of such camp, and not the agent of the head camp; that no act or omission on his part should have the effect of creating a liability on the part of the society or of waiving any right or immunity belonging to it, and that he should not collect or receive assessments or dues from a beneficiary member who has been suspended, except upon reinstatement in the manner above mentioned. All by-laws of the society were, by the express terms of the certificate, made a part thereof. No payment of any assessments or dues maturing after December 1, 1901, was made by Sheridan or any other person at any time prior to his death in June, 1904, nor were any tendered except on the one occasion hereinafter mentioned. The respondent's witnesses testified that, in December, 1901, Mrs. Hewitt wrote a letter to the clerk of the local camp, advising him of the insanity of Sheridan, and requesting him to notify her so that she might pay the assessments in the event of the failure of Sheridan to do so; that the clerk, answering this letter, stated the assessments were then paid in advance, and that he would keep her notified; that by reason of the failure of the clerk to give her any further notice, she failed to pay the assessment levied in January, 1902, not knowing that it had been levied; that in February, 1902, the clerk by letter advised her of the suspension of Sheridan for nonpayment of the January assessment, and sent her a blank certificate of health to be signed by him as a condition precedent to his reinstatement; that in response to this letter, she, on March 8, 1902, wrote the clerk in part as follows: "I have been away a little while and was not here when Lulu, my daughter, got your letter or would have seen to it at once as Sheridan was here then, but he is not here now and the last time I saw him, about three weeks ago, he was well and walking down the street, but as he has left town I cannot get him to sign the paper but will inclose $3.60 to pay the dues to May 1st, and if it is not all right, you can return the money order to me, * the reason I wish to keep up these dues is he is a very reckless man now in some ways and as I wrote you a year ago that I would keep up these dues if you would inform me when

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