* I

he failed to pay. * Now * hope you will look on my letter with some favor and make this all right; that is, if his insurance still runs to Lulu, his daughter." The original of the last-mentioned letter was produced at the trial, but none of the others mentioned by respondent's witnesses could be found. No further attempt at payment of either assessments or dues was made by the respondent or her mother, nor is it claimed that any further correspondence took place. The $3.60 remitted by Mrs. Hewitt was returned by the clerk, he refusing to receive the same without the health certificate. The clerk denies receiving any letter from Mrs. Hewitt in December, 1901. and also denies that he wrote her the letter which she says she received from him during the same month, in which he promised to notify her of the assessments when levied. As the jury found a verdict in favor of the respondent, they necessarily believed the statements of her witnesses, and we must accept the same as true.

The contention of the respondent is that the appellant had no right to suspend Sheridan for nonpayment of dues or assessments, he being to appellant's knowledge insane and unfit for business; that appellant's agent, the clerk of the local camp, failed to notify the respondent of the levy of assessments as agreed, and that by reason of such failure, the attempted suspension was void. It is not disputed but that notice of the January. 1902, assessment was given to Sheridan by the head clerk, in the manner required by the by-laws, and the appellant now insists that nonpayment after such notice ipso facto worked a forfeiture of the certificate, and that, even though the clerk of the local camp did agree to notify the respondent's mother of the assessments when levied, such agreement was not binding upon the appellant by reason of the restrictions upon his authority contained in its by-laws. We think these contentions should be sustained upon the authority of Modern Woodmen of America v. Tevis, 117 Fed. 369. 54 C. C. A. 293, and cases therein cited. In the Tevis Case, the United States Circuit Court of Appeals construed and passed upon the legal effect of the identical by-laws now before us, and we fully indorse and adopt its reasoning as controlling in this case: this being the sole instance in which it is shown that the clerk in his course of dealing with members or beneficiaries violated any bylaw of the society, and it not appearing that his action was the result of any customary course of procedure adopted by him towards members or beneficiaries. A single act of transgression cannot arise to the dignity of a custom so as to be impliedly ratified by the appellant. Had it been pleaded and shown that the clerk habitually violated appellant's by-laws in this or kindred matters. a different rule might possibly be applied in 87 P.-9

determining the relative rights of the parties; but that question is not now before us, as no showing of any such state of facts has been made.

The appellant further contends that the insanity of the assured is no excuse for nonpayment under the contract; and, in support of such contention cites with others the following authorities, which we think are in point: Pitts v. IIartford Life & Annuity Co. (Conn.) 34 Atl. 95, 50 Am. St. Rep. 96; Wheeler v. Connecticut Mut., etc., Co., 82 N. Y. 543, 37 Am. Rep. 594; Carpenter v. Centennial Life Ass'n (Iowa) 27 N. W. 456, 56 Am. Rep. 855. In following these cases, we are not unmindful of the case of Buchannan v. Supreme Conclave, etc. (Pa.) 35 Atl. 873, 34 L. R. A. 436, 56 Am. St. Rep 774, cited by respondent and which we regard as being against the weight of authority. The respondent most vigorously contends that, as she was misled by the act of the clerk of the local camp, the appellant had no right to forfeit the certificate, and that it should be estopped from pleading such forfeiture. Were we to concede that the clerk had power to bind the appellant when he agreed to notify respondent's mother of assessments as levied, and should we also hold that the beneficiary was entitled to notice of assessments by reason of the insanity of the insured, of which appellant was advised, still we think no recovery can be permitted herein as the respondent and her mother, who was acting in her behalf. must be held by their subsequent conduct, covering a period of more than two years, to have acquiesced in such alleged irregular forfeiture of the certificate. At all times after March S. 1902, they failed to make any further tender of dues or assessments, nor did they take any steps to secure relief from such suspension and forfeiture.

In Lavin v. Grand Lodge A. O. U. W., 104 Mo. App. 1, 78 S. W. 325. cited by respondent, it was contended that the wife of the beneficiary had twice tendered payment of assessments which were due, but that the clerk of the local lodge had declined to accept the same for the reason that, as he alleged, the tender was insufficient in amount. No further payments were made or tendered during the life of the assured, who died some six months later. On trial judgment was entered in favor of the beneficiary, which the appellate court reversed, ordering a new trial. Upon investigation we find that on the second trial the beneficiary again recovered judgment, and that the case again came to the court of appeals, being reported in 112 Mo. App. at page 1, 86 S. W. 600. On this last hearing the Appellate Court enters into a very elaborate and able discussion of the rights and duties of an assured when a certificate issued by a fraternal society has been forfeited without just cause, and announces the doctrine that it is

essential for the preservation of the rights of the beneficiary under the certificate that, notwithstanding such forfeiture, the assured or his representative should offer to fully perform the contract upon his part. The court, reviewing numerous authorities, points out a clear distinction between the principles applicable to old line life insurance companies which carry on business for profit, and those which are applicable to fraternal societies. Under appellant's by-laws and the terms of the certificate, Sheridan was required to pay quarterly dues in advance, without notice of the same. There is no showing that either he or any other person ever offered to make such payments within the two years and a half the assured lived after January, 1902. Yet the respondent and her mother, who had the certificate in her possession, must have known that nonpayment of these dues would ipso facto forfeit the rights of the assured, without regard to the assessments. There is no showing that, after the tender made in March, 1902, was returned by the clerk, the assured, the respondent, or her mother ever attempted to take any steps, either in the order or in any court of justice, to compel a reinstatement of the policy, or to have the alleged forfeiture declared to be void. The appellant contends that, under the by-laws of the society, the respondent should have appealed from the action of the clerk, and that, having failed to do so, she is now estopped from claiming under the certificate.

Respondent, however, calls attention to the fact that the by-laws, by their express terms, give the right of appeal to members only. This is true. Yet were we to hold that the respondent, by reason of her father's insanity, was, prior to his death, entitled to any vested right in the certificate as against the appellant, she certainly should have taken some action to protect herself from the loss which would necessarily result from the forfeiture alleged to be void, and should have done so without unreasonable delay. Accepting her theory of this case, we are unable to escape the conclusion that a duty was imposed upon her to at least direct the attention of the local camp to the action of its clerk, so that it might be afforded an opportunity for correcting his mistake in refusing the tender, either by taking action itself, or by causing the head camp to act. If the respondent and her representatives could be permitted to remain quiet and allow the suspension of Sheridan and the forfeiture of the certificate to continue unquestioned for the period of more than two years, without even tendering any payment of dues which necessarily matured, and could then successfully prosecute this claim against appellant, there is no reason why they could not have continued such inactivity for a period of 10 years or even longer. Such a construction of the certifi

cate would be absurd, to say nothing of its being unjust. We think the respondent acquiesced in the decision and action of the clerk, that she is now bound thereby, and it not entitled to recover.

The motion for a directed verdict in favor of the appellant should have been granted, and the trial court erred in denying the same. It is ordered that the judgment of the superior court be reversed, and that the cause be remanded, with instructions to dismiss the action.

MOUNT, ROOT, FULLERTON, HADLEY, DUNBAR, and RUDKIN, JJ., concur.

(44 Wash. 250)

HELLAR et al. v. CITY OF TACOMA. (Supreme Court of Washington. Oct. 30, 1906.) MUNICIPAL CORPORATIONS-STREET IMPROVEMENTS-CONTRACT-TIME FOR PERFORMANCE

OF WORK.

A city charter provided that all public work should be done by contract under the supervision of the commissioner of public works, whose duty it was to fix the time within which the work should be completed, and it was provided that the contract should specify the time within which the work should be completed, and that, if not completed within that time, the contract should be void. Held, that where work under a contract was not completed within the required time, owing to a cessation of work by the contractor on the request of the commissioner of public works, the contract was not void.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 894.]

Appeal from Superior Court, Pierce County; Thad Huston, Judge.

Objections by W. G. Hellar and others to an assessment for a street improvement in the city of Tacoma. The objections were overruled by the city council, but on appeal to the superior court the contract for the improvement was held void, and from such judgment the city appeals. Reversed and remanded.

C. M. Riddell, R. E. Evans, and J. A. Quick, for appellant. T. L. Stiles, for respondents.

MOUNT, C. J. This appeal is from an order of the superior court of Pierce county adjudging a contract between the city of Tacoma and the Barber Asphalt Paving Company void, and for that reason annulling an assessment made by the city to pay for certain street improvements made under the contract. The city appeals.

The facts are that the city of Tacoma in the year 1905 passed a resolution and ordinance providing for the paving of certain streets and alleys in said city, designating the district as "improvement district No. 252." These improvements were ordered to be made at the expense of the property specially benefited thereby, payment to be made to the contractors in bonds which were to mature annually for a period of years. The

commissioner of public works was directed to prepare plans and specifications and make estimates of the cost of the improvements, and to call for bids for the work. This was done, and upon public advertisement a contract was let to the Barber Asphalt Paving Company, and duly signed on March 29, 1905. By the terms of this contract, and the specifications which were made a part thereof, the work was to be completed within 160 days after the execution of the contract, which provided: "If said improvements be not completed within one hundred and twenty days after the execution of this contract, a demurrage will be charged as hereinafter set forth, but due allowance will be made for such days that rain prevents the execution of this work in a proper manner. The commissioner of public works shall decide the number of days to be allowed. Said time, however, shall not extend beyond the one hundred and sixty day limit." The demurrage provided for was $25 per day after 120 days. The contract also provided that the work should be done under the supervision and to the satisfaction of the commissioner of public works. The paving company, after making the contract, entered upon the work, and continued to perform the same until about the 13th day of July, 1905, when the paving company was directed by authority of the commissioner of public works to cease work until other pavement which was being done in other districts adjoining district No. 252 could be brought up and fitted and connected to this work. In obedience to this request, the paving company ceased work on this contract until about September 14, 1905. The 160-day limit expired on September 5, 1905. On the next day these respondents served written notice on the commissioner of public works that the time limit for the completion of the contract had expired, and demanded that he permit no further work by the paving company upon said contract, and that the commissioner of public works proceed to let a contract for the completion of the work. The commissioner of public works paid no attention to this notice, but permitted the paving company to finish the work on or about the 14th and 15th days of September, and thereafter accepted the completed work. Subsequently an assessment roll was prepared assessing the property of respondents and others specially benefited for the payment of the cost of the improvement, viz., $105,450. The respondents, representing property in the district assessed for about $41,000, appeared before the city council and objected to the assessment upon several grounds. All the objections were heard and considered by the city council and rejected. Respondents thereupon appealed to the superior court of Pierce county, but upon such appeal waived all of its objections except two, which are substantially as follows: That the charter provisions as to the time within which work

must be done are mandatory and binding on all the parties, and, the work not having been done within 160 days, the contract is void that the demurrage of $25 per day must be enforced against the contractor after 120 days, even if the work was completed within the 160-day limit. Upon trial to the court without a jury the court found that the contract had not been completed within 160 days as therein provided, and was therefore void, and concluded that the city of Tacoma had no power to levy an assessment for work done under the contract, and entered a judgment annulling the assessment in so far as the same affects the respondents' property.

The question in this case is, did the commissioner of public works have authority for any reason to stop the work under the contract, and thereby extend the time when the work should be finally completed? Respondents contend that he had no such authority. Appellant, while contending for the affirmative of the question, also insists that the work was substantially completed when it was stopped by the commissioner of public works; the facts in this respect being that the whole contract contained about 40,000 square yards of paving, which had all been done except about 836 square yards, or, as is claimed by the respondents, about 1,464 square yards, which uncompleted work was at several street intersections. It was claimed that these intersections could not be completed so as to make a good job until other work should be done on the intersecting streets, and that it was for the benefit of the city that the work was stopped in its incomplete state. Under the view we take of the main question in the case, it will not be necessary to decide or to discuss the question of substantial performance. The city charter of Tacoma provides, at section 160, that all public work authorized by the city council shall be done by contract under the supervision of the commissioner of public works; but before awarding any contract the commissioner of public works shall cause notice to be given inviting sealed proposals therefor. Section 164 provides that the notice shall contain a general description of the work to be done, the materials or supplies to be furnished, and the time within which the work is to be commenced and when to be completed, and shall refer to the plans and specifications on file in the office of the commissioner of public works for full details of the work. Section 165 provides that all contracts shall be drawn under the supervision of the city attorney and shall have attached thereto detailed specifications of the work to be done, which shall be referred to and made part of the contract, that every contract entered into by the commissioner of public works shall be signed by him and by the other contracting party, and "that the contract for work shall specify the time within which the work shall be commenced and when

to be completed, as was specified in the notice inviting proposals therefor. In case of failure on the part of the contractor to complete his contract within the time fixed, his contract shall be void, and the city shall not pay or allow him any compensation for work done by him under the said contract."

"Sec. 166. If the contractor does not complete his work within the time limited therein, said commissioner of public works may re-let the unfinished portion of said work, after pursuing the formalities hereinbefore described for letting of the whole.

"Sec. 167. The work in this article provided for must be done under the direction and to the satisfaction of the said commissicner of public works, and all materials and supplies furnished must be in accordance with the specifications and to his satisfaction. When any contract shall have been completed and accepted by him, he shall so declare and thereupon he shall deliver to the contractor a certificate to that effect."

The contract entered into by the Barber Asphalt Paving Company and the commissioner of public works substantially followed the provisions of the charter above set out. The language of the contract in this respect is as follows: "Said contractor agrees to construct and complete said improvement in accordance with the plans and specifications heretofore prepared by the city engineer of said city, and in pursuance of the terms of a resolution adopted by the city council of the city of Tacoma, on the 25th day of January, 1905, ordering said improvement to be made, an Ordinance No. 2321 of the city of Tacoma, and in strict accordance with and conforming to the drawings, plans, and specifications for said improvement filed in the office of the commissioner of public 'works of the city of Tacoma on the 27th day of January, 1905, a copy of which said plans and specifications are hereto attached, marked 'Exhibit A,' and made a part of this agreement. The work hereby contracted for shall be commenced within ten days after the signing and execution of this contract, and the whole of said materials and supplies shall be furnished and said work completed within one hundred and sixty days after the execution of this contract; but if said improvement be not completed within one hundred and twenty days after the execution of this contract, a demurrage will be charged, as hereinafter set forth, but due allowance will be made for such days that rain prevents the execution of this work in a proper manner. The commissioner of public works shall decide the number of days to be allowed; said time, however, shall not extend beyond the 160-day limit. In case the contractor fails to complete the work within one hundred and twenty days after the execution of the contract, he shall pay to the city of Tacoma, as penalty for damages caused by such delay the sum of $25

per day for each and every day that shall elapse after the said one hundred and twenty days until said work is completed; provided that in no event shall the final time for the completion of said work extend beyond one hundred and sixty days after the execution of said contract, and, if said work be not completed and said contract finished and complied with on or before the said final limit of one hundred and sixty days after the signing and execution of this contract, then and in that event said contract shall be void, as provided by section 165 of the city charter, and all rights and claims under the provisions of this contract forfeited by the said contractor, and in that event the said contractor shall not be allowed or paid any compensation; provided, however, that if the contractor be delayed by the city council or officials in the beginning of this work, or in any case any allowance for rainy weather be made in writing by the commissioner of public works, then the time of such suspension or delay shall be added to the said one hundred and twenty day limit above mentioned, but in no event shall said suspension or delay extend the time for the completion of the work under this contract beyond the said limit of one hundred and sixty days, above mentioned, for the final completion of the work." It is claimed that these provisions of the city charter and contract are mandatory. We may readily concede that they are so, and that they control both the contractor and the city officials in regard to the work which is to be performed under the provisions thereof. But, in order to arrive at a correct understanding of their scope and meaning, we must consider the object for which they were enacted as well as the language used. The provision that the contract shall specify the time within which the work shall be completed, and that the failure of the contractor to complete the work in the time fixed shall render the contract void, were clearly for the benefit of the city, and were intended to prevent unnecessary delays and failure on the part of the contractor to diligently prosecute the work. They were not intended to guard against delays caused by the city or the commissioner of public works and thereby become a trap for the contractor. The charter does not prescribe any fixed time within which work shall be done. That is left to the commissioner of public works, who fixes the time when he prepares the plans and specifications. This time limit fixed by the commissioner of public works is required to be put into the contract which is signed by him and the contractor, and in case of failure on the part of the contractor to complete his contract within the time fixed the contract shall be void. The charter also provides that the contractor shall perform his work under the direction and to the satisfaction of the commissioner of

public works. These provisions do not mean that, where the failure is entirely on account of the city or the commissioner of public works, the contract and work done thereunder shall be forfeited. Such construction would not be placed upon the charter or upon the contract unless the language used clearly and unequivocally so states. It does not do so. It refers entirely to the failure of the contractor. The power to fix the time for completion of the work rests with the commissioner of public works. fixes the time which seems to him adequate, and invites bids accordingly. Bids are made on that basis by persons who are willing to enter into a contract to complete the work under the direction and to the satisfaction of the commissioner of public works within the time fixed, and provides that a failure on the part of the contractor to complete the work within the time fixed shall avoid the contract, but neither the charter nor the contract provides that the contract shall be void on account of any act of omission or commission of the commissioner of public works. In this case it is shown without dispute that the work was nearly completed well within the time, and that the contractor could have performed his work within the 120 days, and that he would have done so but for the request of the commissioner of public works that the work cease until certain other work in other districts

was done; that the commissioner of public works stopped the work for the benefit of the city, in order that the work might be finished better a little later than it could be done at that time. The good faith of city officials in charge of the work is not attacked. Under these circumstances, we see no good reason for holding the contract void.

Counsel for respondents cites a number of cases where the contract was extended after the time limit had expired, and after the contract had become void, and it was there held that the contracts became void at the expiration of the time limit, and that there was no power to revive a void contract after that time. Those cases were clearly right. If the contractor in this case, without the direction of the commissioner of public works or in violation of his orders, had permitted the 160-day limit to expire, his contract no doubt would in that case have become void according to the express terms of the statute and the contract, and no power is vested either in the city or in the commissioner of public works to revive the same, and the authorities cited would in such cases be in point. But, because the contractor obeyed the direction of the commissioner of public works, as he was obliged to do, while his contract was yet in force and still alive, this case is not controlled by the cases cited. We are of the opinion that the commissioner of public works was authorized to stop the work at any time before the expiration of

the limit in good faith for the benefit of the city, and that such time lost without the fault of the contractor should not be considered to avoid the contract. For this reason the lower court erred in holding the contract void and in annulling the assessment roll.

The judgment of the trial court is reversed, and the cause remanded, with directions to the lower court to dismiss the appeal of the city council and to affirm the assessment roll.

RUDKIN, DUNBAR, CROW, ROOT, FULLERTON, and HADLEY, JJ., concur.

(44 Wash. 207)

STATE v. DILLEY et al. (Supreme Court of Washington. Oct. 26, 1906.) 1. CRIMINAL LAW-PRELIMINARY PROCEEDINGS -SERVICE OF COPY OF INFORMATION-WAIV

ER.

One announcing himself ready for trial when his case is called, and not objecting to going to trial without having been furnished with a copy of the information, as required by Ballinger's Ann. Codes & St. 8 6880, but merely stating that he wished the record to show that he had not been served with a copy, cannot after conviction urge that he was prejudiced by the omission to serve a copy.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1408, 2117.] 2. SAME DECLARATION OF CODEFENDANTS ADMISSIBILITY.

Where, in a criminal case, the theory of the prosecution was that a conspiracy existed between defendants jointly tried to commit the crime charged, a conversation between a defendant and the prosecuting witness not occurring in the presence of the codefendants was admissible as against the defendant, and also against the codefendants on proof of the existence of a conspiracy.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 984-987.] 3. SAME.

Evidence on a trial for robbery examined, and held sufficient to submit to the jury the issue of conspiracy between defendants to commit the crime, rendering acts and declarations of one defendant admissible against the others. 4. SAME-ADMISSIONS BY ACCUSED-ADMISSI

BILITY.

On a trial for crime, the state offered in evidence an unsigned letter implicating accused in the commission of the offense charged. There was no proof that the letter was in the handwriting of accused, but it was shown that the letter fell directly from accused's room in the jail, and that there was no other person there at the time. Held, that the letter was admissible; the facts being sufficient to connect accused with writing it.

5. SAME CONSPIRACY-DECLARATIONS OF CONSPIRATORS-EVIDENCE-ADMISSIBILITY.

On a trial for robbery, the evidence was sufficient for the submission to the jury of the issue of a conspiracy between defendants, not only to commit the robbery, but also to fabricate a defense. All the defendants were confined in jail while awaiting trial. A defendant wrote a letter intended for the other defendants, indicating a line of defense in accordance with the conspiracy to fabricate a defense. Held, that the letter was admissible against all the defendants as showing a general design of the conspirators. [Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 989, 1002.]