management of the business of a corporation, or a particular part of the business, he has apparent or implied authority to manage the same in the usual way, and for such purpose to bind the corporation by his acts and contracts on its behalf." 3 Clark & Marshall on Corporations, § 707. It is not in harmony with any sound code of ethics and is not the policy of the law to permit a solvent corporation to obtain and appropriate the property of another on the credit of its solvency and then escape responsibility by hiding behind some impecunious officer of such company. On all the disputed questions of fact in relation to the terms of the contract and the amount of labor performed under such contract we are not inclined to disturb the findings of the trial court.

The judgment is affirmed.

CROW, FULLERTON, and HADLEY, JJ., concur. ROOT, J., dissents. MOUNT, C. J., and RUDKIN, J., did not hear the arguments in this case.

(44 Wash. 347)

STEVENS v. KITTREDGE et al. (Supreme Court of Washington. Nov. 10, 1906.) 1. SPECIFIC PERFORMANCE ENFORCEABLE

CONTRACTS-MUTUALITY.

In a suit to enforce specific performance of a contract to convey land the fact that the purchaser was not obligated to pay the purchase price does not make the contract unenforceable for want of mutuality where the purchaser has paid a part of the price, has repeatedly expressed his readiness to pay the balance. and tenders the same into court on suing for performance.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 90.]

2. HUSBAND AND WIFE-COMMUNITY PROPERTY-CONTRACTS OF SALE--EFFECT.

Negotiations for the sale of property. consisting of community property, were conducted almost entirely by the wife. The husband answered a telegram sent to the wife as to the sale, and the wife answered a telegram sent to the husband. The husband and wife executed a deed, and sent it to a third person for delivery. The wife repudiated the sale. Both husband and wife had knowledge of the negotiations, and each ratified the acts of the other. Held. that the husband was bound by the contract of sale.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 931.1

3. SPECIFIC PERFORMANCE-PERFORMANCE BY PURCHASER.

Where the delay on the part of a purchaser to perform his contract is due to the failure. of the owner to execute a deed and furnish an abstract showing title, the vendor cannot insist that the purchaser did not perform the contract as soon as he should.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44. Specific Performance, § 315.]

Appeal from Superior Court, King County; Arthur E. Griffin. Judge.

Action by W. E. Stevens against Elizabeth G. Kittredge and another. From a judgment for plaintiff, defendants appeal. Affirmed.

II. R. Clise and Geo. II. King, for appellants. Ballinger, Ronald, Battle & Tennant, for respondent.

RUDKIN, J. This was an action for the specific performance of a contract for the sale of real property. The contract relied on consists of numerous letters and telegrams which are too voluminous to set forth in detail in an opinion. The defendants were the owners of two certain lots in the city of Seattle, and, during the period covered by the negotiations following, resided in the city of Detroit, Mich. Some time prior to September 4, 1905, George W. Dilling, a real estate agent of Seattle, wrote the defendant Elizabeth G. Kittredge concerning the sale of the two lots. Under the above date Mrs. Kittredge wrote Dilling that the lots were for sale if a proper price could be obtained. She stated that she had been absent from Seattle for some time, that realty values had changed, and asked what the property was worth. Dilling replied under date of September 13th, informing her that certain lots in the vicinity had sold for $13,000 net, that certain other lots were for sale at $14,000, but he preferred that she should fix her own price. Mrs. Kittredge replied, under date of September 23d, that she would sell for $16,000, giving a clear title, and would consider any reasonable offer. On November 7th Dilling wired Mrs. Kittredge that he had an offer of $14,000 for the lots, she to pay a commission of $600. The following day the defendant R. B. Kittredge wired back that they would accept $14.000 no commission. In reply Dilling wired the defendant R. B. Kittredge that he could not raise the offer, but would reduce commission to $300. On the following day Mrs. Kittredge wired Dilling that the offer was accepted, and to make deposit with the Washington Trust Company. On the same day she wired the Washington Trust Company that she had sold Dilling the lots, and to accept deposit pending delivery of papers through the trust company. Dilling then notified the plaintiff that his offer had been accepted. The plaintiff paid Dilling $500 on account of the purchase price. and the amount was deposited with the trust company. The trust company receipted for the amount, the receipt setting forth the terms upon which the deal should be closed. On receipt of the deposit the trust company wired Mrs. Kittredge that the deposit had been made and to send abstract. A letter of similar import was mailed the same day. On November 10th Mrs Kittredge wired the trust company that the abstract would be forwarded from San Francisco. On the same date she wrote the trust company that a Mr. Johnson of San Francisco held the abstract as there was a mortgage on the property in favor of Miss Kittredge, a sister of her husband. She asked the trust company to take charge of the

sale and report progress to her. On November 10th Dilling wrote Mrs. Kittredge that he had sold the lots to the plaintiff, that the plaintiff had paid $500 as earnest money, and would pay the balance of the purchase price in cash upon the receipt of a deed and abstract showing clear title. He inclosed a deed of the property to be executed by both defendants and returned to the trust company. On November 11th Mrs. Kittredge wrote the trust company to take up a $6,000 mortgage on the property, and when final settlement was made to deposit balance to her credit. On November 16th, she again wrote the trust company acknowledging receipt of the deed from Dilling and stating that she would return same by registered mail on the following day. On the same date she also wrote Dilling acknowledging receipt of deed and stating that she would return same with all papers of any benefit! to the intending purchaser to the trust company on the day following. On November 20th Mrs. Kittredge wrote the trust company that she had received word from San Francisco that the abstract had been forwarded. She also inclosed an insurance receipt, and asked the trust company to request the plaintiff to pay the amount due on the policy, and if he refused. to collect from the insurance company. On November 18th Dilling received the abstract from the trust company. The abstract was thereupon brought down to date, and delivered to the attorneys for the purchaser on November 24th. On November 25th the attorneys completed their examination of the abstract, and reported the title clear, except a street grade assessment and the mortgage to Miss Kittredge above referred to. On November 27th the plaintiff notified Dilling that he was ready to pay the balance of the purchase price and close the sale, but upon inquiry from the trust company it was learned that the mortgage release had not yet been received. Again, on November 29th, the plaintiff announced his readiness to close the deal, but still the release had not come. A similar offer was made on December 4th with the same result, and the plaintiff thereupon offered to pay : the entire balance of the purchase price to the trust company, receive the deed, and trust to the trust company to place the release of mortgage on record as soon as it was received, but this the trust company refused to do. Finally on December 7th Mrs. Kittredge wired the trust company that if the sale was not closed to hold the papers subject to her order. After further negotiations, not necessary to be detailed here, the defendants refused to perform the contract or deliver the deed, and the plaintiff brought this action for specific performance, averring his readiness to pay the balance of the purchase price. The court below on the foregoing stipulated facts entered judgment in favor of the plaintiff, and from this judgment the present appeal is prosecuted.

While this mass of correspondence would seem to leave little room for fraud or perjury, yet the appellants earnestly insist that there is no contract which they are obligated to perform. We will therefore consider briefly the different objections urged in their behalf. It is first contended that there is a lack of mutuality in the contract, that the respondent was not obligated to pay the purchase price, and therefore the appellants are not obligated to convey. The respondent has paid a part of the purchase price, has repeatedly expressed his readiness to pay the balance, and now tenders the same into court. This supplies any lack of mutuality in the contract under the ruling of this court. Western Timber Co. v. Kalama River Timber Co. (decided May 10th, 1906) 85 Pac. 338: Conner v. Clapp (decided May 22, 1906) 85 Pac. 342.

It is next contended that the appellant R. B. Kittredge at least is not bound. While the property is presumed to be community, and the negotiations were conducted almost entirely by the wife, yet it will be remembered that the husband answered a telegram sent to the wife in relation to the sale, and the wife answered a similar telegram sent to the husband. IIusband and wife executed a deed and sent it to the trust company for delivery, and finally it was the wife and not the husband who repudiated the sale. Both husband and wife unquestionably had full knowledge of the pending negotiations, and negotiations, and each fully ratified the acts of the other. Washington State Bank v. Dickson, 35 Wash. 641, 77 Pac. 1067.

The final contention is that the respondent did not perform the contract as soon as he should. should. The cause of the delay is so apparent from the foregoing statement that argument or discussion is unnecessary.

There is no merit in the appeal, and the judgment is affirmed.

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

concur.

(44 Wash. 385) W. P. FULLER & CO. v. RYAN et al. (Supreme Court of Washington. Nov. 14, 1906.) MECHANICS' LIENS-RIGHT TO LIEN-MATERIALS FURNISHED-USE.

Under Pierce's Code, § 6102, providing that every person performing labor upon, or furnishing materials to be used in the construction of, any building has a lien thereon for the labor performed or materials furnished, a materialman's lien cannot be established where it does not appear that the materials were actually used in constructing the building, or delivered on the premises on which the lien is claimed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 51.]

Appeal from Superior Court, King County; A. W. Frater, Judge.

Action by W. P. Fuller & Co., a corporation, against John E. Ryan and another.

From a judgment for defendants, plaintiff appeals. Affirmed.

Gray & Stern, for appellant. H. R. Clise, John B. Hart, E. P. Whiting and John E. Ryan, for respondents.

ROOT, J. This was an action commenced by appellant, a wholesale paint firm of Seattle, to foreclose a lien for painting materials furnished for use on a building erected by respondents Ryan and wife. Findings of fact and conclusions of law were entered favorable to defendants. From a judgment and decree thereupon, this appeal is prosecuted.

Exceptions are taken to several findings of fact, and the making thereof is assigned as error. We think the findings complained of are sustained by the evidence, at least all those that are material to a decision of the case, in the light of the conclusion which we have come to upon the paramount legal proposition involved. It was urged by appellant that the principal error of the trial court was its holding to the effect that a materialman's lien could not be established where it did not appear that the materials were actually used in constructing the building, or delivered on the premises for such use. Appellant, through its counsel, expressed itself as willing to base its rights to a reversal of the decree on this proposition. We think the holding of the trial court upon this question must be upheld. Section 6102, Pierce's Code, provides that "every person performing labor upon, or furnishing materials to be used in the construction * ** * of any building * * * has a lien upon the same for the labor performed or materials furnished. **** Under a similar statute the Supreme Court of Illinois, in the case of Hunter v. Blanchard, 18 Ill. 318, 68 Am. Dec. 547, held that, not only was a contract for the materials essential, but that they must be actually used in the building, in order to afford a basis for a lien. The statute involved in that case was as follows: "Any person who shall by contract with the owner of any piece of land or town lot, furnish labor or materials for erecting any building or the appurtenance of any building on any land or town lot, shall have a lien," etc. If the materials were not used in the building nor taken to the premises, we do not think it could be said that they were purchased to be used in such building, within the meaning of the statute. The reason for allowing a lien to secure the purchase price of building material would seem to be absent where such material was neither used in the building nor taken to the premises for that purpose, and it would be difficult to see why the vendor of such material would have any better right to a lien than would the seller of any other species of personal property. Doubtless the actuating thought of the Legislature was that the materialman

should retain a purchase-price lien upon the thing itself, and this could be accomplished only by allowing a lien upon the building and the premises into which, or upon which, said material should become builded or delivered. To hold the right of lien further extended could only be done under a statute clearly evidencing such an intention on the part of the Legislature. We deem our statute incapable of such a construction. Houghton v. Blake, 5 Cal. 240; Eisenbeis v. Wakeman, 3 Wash. 538, 28 Pac. 923; Silvester v. Coe Quartz Mining Co., 80 Cal. 510, 22 Pac. 217; Bewick v. Muir, 83 Cal. 373, 23 Pac. 390; Hill v. Bowers, 45 Kan. 592, 26 Pac. 13; Chapin v. P'ersee, 30 Conn. 461, 79 Am. Dec. 263.

In view of what we have said, it becomes unnecessary to pass upon the contention of respondents that the notice of lien was fatally defective.

The judgment of the superior court is affirmed.

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

concur.

(44 Wash. 388) THOMSON v. UNITED STATES FIDELITY & GUARANTY CO.

(Supreme Court of Washington. Nov. 14, 1906.) INSURANCE INSURANCE AGAINST THEFT POLICY-STIPULATIONS-CONSTRUCTION.

-

A policy, insuring against loss of property by theft while in a building occupied by the insured, which stipulates that it shall be void if the conditions or circumstances of the risk are changed without the written consent of the insurer, and if the premises are left without an occupant for more than 6 consecutive months unless a written permit is indorsed on the policy, authorizes the insured to leave the premises vacant for a period not exceeding 6 months without the consent of the insurer, or to lease them to tenants not of a character endangering the risk for a term not exceeding 6 months.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 760, 764.]

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by William J. Thomson against the United States Fidelity & Guaranty Company. From a judgment for defendant, plaintiff appeals. Reversed, and remanded with directions to enter judgment for plaintiff.

J. W. Rayburn and Wm. H. Brinker, for appellant. Walter S. Fulton, for respondent.

ROOT, J. This was an action to recover on an insurance policy, issued by respondent to appellant, against loss of property by theft, larceny, or burglary. From a judg ment in favor of defendant, this appeal is prosecuted. On the 18th of December, 1904, the policy sued upon was issued to appellant, covering, for the period of one year, various items of personal property contained in ap

pellant's home in Seattle. On or about the 1st of May, 19:05, part of the property thus insured was stolen from said house. Some four months prior to the time of the theft, the appellant. without the written or other consent of defendant and without its knowledge, leased the house to tenants who occupied it at the time of the theft, said insured property being stored in the attic of the building.

Said policy contained the following provisions: "For direct loss by burglary, theft or larceny of any of the property described in the schedule hereinafter given and constituted to be insured hereunder occasioned by its felonious abstraction from the interior of the house, building, apartments, room or rooms, actually occupied by assured, and described in said schedule, and hereinafter called the premises,' by any domestic, servant or employé of the assured, or by any person or persons, except the assured, and for direct loss by damage to said property and to the said premises caused by burglars and thieves. This policy shall be void if the conditions or circumstances of the risk are changed without the written consent of the company, or if the assured attempts in any way to defraud the company, or if the policy is assigned without the written consent of the company." Respondent contends, and the trial court upheld the contention, that the leasing of the premises by the assured without respondent's consent constituted a change in the "conditions and circumstances" of the risk which rendered the policy void under and by virtue of the provisions just quoted. Appellant meets this contention by a reliance upon the following provision in said policy: "If the premises are left without an occupant for a period exceeding six consecutive months, unless a written permit for such nonoccupancy, signed by an executive officer of the company, is indorsed upon or attached to the policy," the defendant should not be liable for loss or damage. It will be observed that this provision is absolutely inconsistent with the others above quoted. Those portions implied that the property was to be insured while in a building actually occupied by assured, and expressly stated that a change in "conditions or circumstances of the risk" should render the policy void. But the provision relied upon by appellant plainly contemplates that the assured might change the conditions and circumstances by leaving the premises without an occupant for a period not exceeding six months. If the assured was authorized to leave the building for that period without any occupant, he certainly would be justified in leaving it with occupants, unless the latter were people of a character endangering the risk. Nothing of this kind appears in the case, and we cannot presume that the tenants were lawless or unreliable people. As the sections quoted are irreconcilable, the question is presented as to which shall control. Adjudicated cases upon questions of burglary insurance appear to be

scarce in so far as they throw any light upon the questions here involved; but it would seem that policies of this character are analogous to those of life, accident, and fire insurance. As to such policies, the rule is well established that, where by reason of ambiguity, inconsistency, and uncertainty, either of two divergent constructions might find support, a policy will be given that interpretation which is the more favorable to the assured. As the instrument is prepared by the insurance company, it is presumed that appropriate language has been employed to safeguard its interests; and the rule is particularly applicable in determining the effect to be given clauses and provisions which are more or less obscure, and which are claimed to limit the company's obligations or reserve exceptions to its general liability. The section of the policy, relied upon by appellant, authorizing him to leave the premises for a period not exceeding six months without the "written permit," being at variance with the provisions of as to the house. being "actually occupied by assured," and as to the change in "conditions or circumstances * * * without the written consent," and these latter provisions being intended to limit the liability of the company, we must hold, under the accepted rule applicable to insurance contracts, that the appellant herein had the right to leave the premises for a period not exceeding six consecutive months without the consent of the company; and as the condition of the premises with tenants. not shown to be criminal or suspicious characters, would of necessity afford more protection to the insured property than if the house were left entirely without occupants we think no violation of the policy on the part of appellant has been shown.

In the case of Starr v. Etna Life Ins. Co., 41 Wash. 199, 83 Pac. 113, this court said: "It is the established and universal law that insurance policies are to be construed in favor of the insured, and most strongly against insurance companies. This is a reasonable rule, considering the fact that these policies are prepared by men who are learned in the law and trained in preparing contracts of this kind, and who have studied the legal effects of all the multifarious provisions in the ordinary insurance policies, whether accident or life." In the case of Equitable Ins. Co. v. Osborn, 90 Ala. 201. 9 South. 869, 13 L. R. A. 267, the Supreme Court of Alabama employed the following language: "Exceptions of this kind are construed most strongly against the insurer, and liberally in favor of the insured. This is now the settled rule for construing all kinds of insurance policies, rendered necessary, especially in modern times, to circumvent the ingenuity of the insurance companies in so framing contracts of this kind as to make the exception unfairly devour the whole policy." See, also, Rumsey v. Phoenix Ins. Co. (C. C.) 1 Fed. 396; Grane v. City Ins. Co. (C. C.) 3 Fed. 561;

Credit Co. v. Wood, 73 Fed. 81, 19 C. C. A. 264; Olson v. St. Paul Ins. Co., 35 Minn. 432, 29 N. W. 125, 59 Am. Rep. 333; Boon v. Etna Ins. Co., 40 Coun. 586; Moore v. Pho nix Ins. Co. (N. H.) 6 Atl. 27, 10 Am. St. Rep. 390 and note; 1 Cooley's Brief on Ins., pp. 632-4; 2 Cooley's Brief on Ius., pp. 1723, 1743-1746.

The judgment of the honorable superior court is reversed, and the cause remanded with directions to enter judgment in favor of appellant for the value of the goods as found by the trial court, together with legal interest and costs.

DUNBAR, CROW, CROW, FULLERTON, and HADLEY, JJ., concur. MOUNT, C. J., and RUDKIN, J., not sitting.

(44 Wash. 404)

PEIRCE et ux. v. NATIONAL BANK OF GERMANTOWN.

(Supreme Court of Washington. Nov. 14, 1906.) 1. COURTS JURISDICTION-DIVESTURE-STATUTES---MANDATORY CONSTRUCTION.

Ballinger's Ann. Codes & St. § 5090, providing that in any action arising on a contract for the recovery of money only, plaintiff may file proof of personal service of the summons and complaint on one or more of the defendants and that the court "shall" thereupon enter judgment for the amount claimed, is not mandatory so as to require the court to enter judgment immediately on the filing of proof of service on defendants or to forfeit its jurisdiction, and hence, delay in entering judgment for over four years after the filing of the summons with proof of service did not devest the court of jurisdiction, in an action for the recovery of money due

on a contract.

2. DISMISSAL-WANT OF PROSECUTION.

While plaintiff's failure to have judgment entered in an action on a judgment for over four years after proof of service of the summons on defendants, may have justified the court, after the lapse of a reasonable time after the filing of such proof of service and before entry of judgment, in granting a motion by defendant to dismiss for want of prosecution, the final entry of such judgment foreclosed the right to such dismissal.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Joshua Peirce and another against the National Bank of Germantown. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

T. L. Stiles, for appellants. C. M. Easterday, for respondent.

FULLERTON, J. The appellants brought this action to remove a cloud from title. In the complaint, it is alleged that the appellants are the owners of certain real property situated in the county of Pierce; that on August 27, 1892, in an action brought in the superior court of that county, the respondent recovered a judgment against Joshua Peirce for the sum of $1,489 on a contract for the payment of money; that on August 23, 1898, a few days before an action would have been barred by the statute

of limitations, the respondent brought an action against him on the former judgment, and caused summons to be personally served on him in the manner required by statute; that he made no appearance in the action, and, on December 22, 1898, the respondent caused the summons with proof of service, an affidavit of no appearance, and a formal motion for default and judgment to be filed with the clerk; and that the matter was then suffered to rest until March 25, 1903, a period of four years, three months and four days, when judgment was entered as of the last mentioned date without further notice to Peirce. The complaint concludes with the allegation that the judgment was entered without jurisdiction, and is for that reason void; and that it constitutes a cloud upon the plaintiff's' title which prevents the sale and disposition thereof. The prayer is that the judgment be decreed to be void, and ordered canceled of record. To this complaint a demurrer was interposed and sustained. The appellants thereupon elected to stand on the complaint, when a judgment of dismissal was entered. The appeal is from that judgment.

To sustain their complaint, the appellants make two contentions: First, that the statute providing for the entry of default judg ments upon contracts for the recovery of money only makes it mandatory upon the court to enter judgment immediately upon the filing of the proof of service; and, second, that by the long and unexplained delay in entering its judgment the action was abandoned by the plaintiff, and the court was without jurisdiction at the time it purported to enter judgment to enter any judgment in the case. The statute relied upon to sustain the first contention is found at section 735 of Pierce's Code [Ballinger's Ann. Codes & St. § 5090]. This section provides. that in any action arising on contract for the recovery of money only, the plaintiff may file proof of personal service of the summons and complaint on one or more of the defendants, and that the court "shall" thereupon enter judgment for the amount claimed. But we cannot think this statute mandatory in the sense that it requires the court, under the penalty of a loss of jurisdiction over the subject-matter of the action, to enter judgment immediately on the filing of proof of service on one or more of the defendants. The section is only one of a number enacted to govern the practice in civil actions, and to construe it as being mandatory would render it out of harmony with such others. To illustrate: Certain sections give a defendant a fixed time, varying according to the place of service, the shortest of which is 20 days, in which to appear and answer after service is made upon him. Others, again, prescribe the mode and manner of service and the character of the return that shall be made by the officer or person