mony whatever in this case tending to show that the parties to the contract agreed to divide the land with reference to the particular line established and reported by Surveyor Robb. And, if we understand what a reformation of a deed means, it must be shown clearly that the parties to the contract intended to deed a particular piece of land; that the deed actually given did not express the agreement of the parties; and a court of equity will then decree that the instrument shall be reformed to express the actual intention of the parties. But, as we say above, there is no testimony showing that the particular line of division indicated by the surveyor was ever agreed upon by the parties to this contract. While it may be true, and doubtless is, that what is termed the "Robb Line" would be an equal division of the tract of land, yet there might be 40 lines run across the tract, which would equally divide the land, and the court, under the testimony, has no authority to reform the deed upon that basis. Besides, according to the report of the surveyor, the deed from Seward to Spurgeon absolutely conveyed nothing, the line not being closed, so that an intelligent description, or any description at all, was expressed in the deed; and the location of the dividing line at the time, and its observance since by both the parties, is really all there is to indicate the intention of the parties at the time. The case, in any event, would have to fail so far as defendants Wheelock and Smiley are concerned, for the testimony is undisputed that they were innocent purchasers for value without notice, both of them having purchased and paid for the tracts of land in dispute without notice of the alleged mistake.

It is stoutly maintained by the appellants that, inasmuch as the deed from Seward to Spurgeon calls for land north of the established line between the two respective tracts, -or, in other words, land which is embraced within what is conceded to be Seward's right ful boundary,-in order to protect appellants' title the deed should have been reformed. But, conceding that this concession has been made, and that the deed from Seward to Spurgeon had actually conveyed such land, the judgment of the court is substantially a reformation of the deed, so far as the protection of appellants' title is concerned.

So far as the question of costs is concerned, the record shows that no demand was ever made upon respondent Spurgeon for the correction of this deed. He has at all times, at the trial and before, disclaimed any title whatever to any land north of the estab lished line agreed upon between them so long ago. The court found, as we think rightfully, from the testimony, that said established line was the true line, which was all that was contended for by the respond. ents; and, their contention having been fully sustained by the court, we see no reason v.37P.no.5-20

why they should be put to costs to litigate the wrongful contention of the appellants. The judgment will therefore be affirmed.

SCOTT, HOYT, ANDERS, and STILES, JJ., concur.

(9 Wash. 399)

CLOUD v. TOWN OF SUMAS. (Supreme Court of Washington. July 13, 1894.) MANDAMUS-PAYMENT OF TOWN WARRANTS.

Where one loans money to a town, and receives warrants therefor, his proper remedy on the refusal to pay the warrants is by mandamus to compel payment thereof, and not by action on the warrants. Dunbar, C. J., dissenting.

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by J. A. Cloud against the town of Sumas to recover money loaned defendant. From a judgment for plaintiff, defendant appeals. Reversed.

Chambers & Lambert and Black & Leaming, for appellant. Ronald & Piles, for respondent.

SCOTT, J. In June, 1891, the town of Sumas became a municipal corporation of the fourth class. The town authorities, desiring to make certain public improvements, such as the grading of streets, etc., and the town not having the money on hand to pay therefor, entered into negotiations with the plaintiff, who at that time was engaged in the banking business at said town, the result of which was an agreement between the town authorities and the plaintiff that the plaintiff would supply said town with moneys to the extent of not to exceed $5,000. Several warrants were issued by the town authorities to plaintiff, and the amount called for, less a certain discount, was deposited in plaintiff's bank to the credit of the town, and these sums were thereafter paid out upon warrants issued to various parties by the town treasurer. This action was brought by the plaintiff to recover the moneys advanced to the credit of the town. He obtained judgment, and the town appeals.

A number of technical objections regarding the regularity of the proceedings of the council authorizing the obtaining of these moneys from the plaintiff are raised upon this appeal. It is also contended that municipal corporations of the fourth class have no authority to borrow money. And it is further contended that the present action will not lie in any event, as the remedy of the plaintiff, if he has any, is by mandamus. to compel the payment of the warrants issued to him for the moneys aforesaid. Owing to the conclusion we have arrived at as to this last proposition, whatever may be our views upon the other questions raised, as to whether any of them are entitled to any merit, or whether the transaction was one of loaning money, or, rather, the pay

ment of debts contracted by the town to other parties, they are eliminated from the case, and are not now entitled to consideration. We are of the opinion that the plaintiff mistook his remedy. All he could obtain upon a judgment in his favor would be a warrant, issued by the town authorities, for the payment of his claim in accordance with the provisions of section 674, vol. 2, of the Code, and he already has a warrant therefor. No execution would lie against the town. If this action can be maintained upon the warrants which have been issued, then a like suit might be maintained upon the warrants issued in satisfaction of this judgment, and so on without limit. Clearly the law contemplates no such proceedings. The plaintiff already has the town's evidences of indebtedness, issued to him in regular form, and, if the treasurer should refuse to pay them in their regular order, he can resort to a mandamus to compel such payment. Carroll v. Board, 28 Miss. 38. See, also, Trust Co. v. Gelbach (Wash.) 36 Pac. 467. And the questions, if they are further insisted upon, affecting the legality of such warrants, can be tried in that proceeding. Jefferson Co. v. Arrighi, 54 Miss. 668. Reversed.

STILES, ANDERS, and HOYT, JJ., concur.

DUNBAR, C. J. I dissent. It seems clear to me that the object of this suit, as gathered from the complaint, was to test the val idity of the warrant heretofore issued, or, rather, to test the validity of the respondent's claim against the city. The record shows that the validity or legality of this claim is denied by the treasurer, and is the only real matter in issue. If that be true, then the issues may as well be determined in this case as in a mandamus proceeding; and the ends of justice will not be subserved by sending the respondent out of court, and imposing upon him the expenses of another suit.

(9 Wash. 112)

ABERNETHY v. TOWN OF MEDICAL LAKE.

(Supreme Court of Washington. June 5, 1894.) TOWNS-INVALID ORGANIZATION-REINCORPORATION-EFFECT ON CONTRACTS-MANDAMUS.

1. Where a town is organized under a void law (Laws 1890, p. 206) which authorizes it to make contracts for street improvements, such contracts are made binding on the town by the enactment of a law (Laws 1893, c. 80) providing for the reincorporation of such towns, and declaring legal all contracts made under the void law.

2. Where the statute provides for the payment of the town's debts by issuing warrants on the treasurer, and a warrant is so issued, which the treasurer refuses to pay, mandamus to compel the payment of the warrant is the proper remedy.

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by Robert Abernethy against the town of Medical Lake on a town warrant. Judgment for defendant, and plaintiff appeals. Affirmed.

Prather & Danson, for appellant. Jones, Belt & Quinn, for respondent.

STILES, J. It was decided in City of Pullman v. Hungate (Wash.) 36 Pac. 483, that those municipal incorporations which were declared to be void in Territory v. Stewart, 1 Wash. St. 98, 23 Pac. 405, and whose attempted resuscitation was held unsuccessful in Town of Denver v. City of Spokane Falls, 7 Wash. 226, 34 Pac. 926, had been legally established as corporations by the act of March 9, 1893 (Laws, p. 183), and that a complaint which showed an attempt at a street assessment under the act of 1890 could be maintained under the act of 1893. City of Pullman v. Hungate has been followed in several other cases, and it applies in this case, where there was a contract made by the town to pay money, instead of a tax or assessment levied by it. The town, in territorial days, took steps towards the grading of a street at the expense of property owners. The contractor failed to complete the work, and, after the reorganization of the corporation in 1890, the council proposed to persons who had been bondsmen of the contractor that if they would finish the work the town would accept it, and "ratify the indebtedness incurred on said street." The proposition was accepted, the work completed, and reported satisfactory, and an ordinance was passed declaring a certain sum to be indebtedness of the town in favor of plaintiff's assignor. Without further order, the mayor and clerk issued warrants, the payment of which was limited to the "Lefevre Street Grade Fund," but there was no such fund, and payment has been refused by the treasurer for want of fund.

The authority of City of Pullman v. Hungate must decide this case on the main point of the plaintiff's right to have a recovery. The act of 1893 expressly provides that all contracts made by the cities and towns therein legislated for are declared legal, and of full force and effect. The undertaking of the respondent town was a contract which the legislature could have authorized the town to make, and it could, therefore, render it valid afterwards, the other party consenting. That, under the act of 1888, streets could be improved only at the expense of abutting owners (if such, in fact, be the case), can have no effect to restrict the payment of this debt to a "grade fund." The contract was general, and was made after the supposed valid organization under the act of 1890, which authorized the council to expend from the general fund any sum they deemed necessary for the improvement of streets. Laws, § 161, p. 206, proviso. A contract of this nature must be supposed to

be within the contemplation of the act of 1893. But has the appellant pursued the proper remedy? Finding against the respondent on the main proposition, we see no necessity for advantage to grow out of this action. The complaint shows a settled and allowed claim against the town, and the is suance of slightly irregular warrants, which can, upon demand, be replaced by proper general fund warrants of the same dates. These can be had upon application to the mayor and clerk, and, if they refuse, mandamus will lie to compel the performance of their duty. These warrants the treasurer must pay, in the order of their issuance, out of any funds coming into his hands belonging to the general fund, and, if he refuses, a like suit will lie against him. The statutes prescribe how municipal corporations shall pay ordinary contract debts, viz. by the issuance of a warrant payable in its order, with interest from date of presentation. But it is not contemplated that the owner of an allowed claim shall sue the corporation generally, upon the original contract, when the clerk or other officer refuses to issue a warrant; nor that the holder of a warrant which the treasurer declines to pay shall get a judgment upon the warrant. Such a judgment, like a judgment upon a claim disallowed, would again be settled by a warrant, and take its turn in the order of payment. The contracting powers of the town have done all they can by the making of the contract and the allowance of the claim. It is the ministerial officers who are now in fault, and the plaintiff must move them to action before he is entitled to any other remedy. Dillon, Mun. Corp. §§ 849, 850, and notes. Judgment of dismissal affirmed.

DUNBAR, C. J., and ANDERS and SCOTT, JJ., concur.

(9 Wash. 177)

WILKESON COAL & COKE CO. v. DRIVER et ux.

(Supreme Court of Washington. June 13, 1894.) INJUNCTION-DISMISSAL OF ACTION-PRACTICE.

1. Where all the parties to a suit have voluntarily submitted themselves to the equity side of a court, the question of whether plaintiff has an adequate remedy at law cannot be raised at the trial by motion to dismiss.

2. Objection that a complaint does not state facts to constitute a cause of action, made a ground of demurrer by statute, cannot be raised by motion to dismiss.

3. The fact that the allegations of a complaint are general is not ground for dismissing the action, but for motion to make more definite.

4. Where a temporary injunction against trespasses is granted till plaintiff bring action to fix boundaries and determine title, and till such action be determined, and defendant immediately brings action for that purpose, and plaintiff, in good faith, tenders an issue to determine title, defendant should not be allowed to dismiss his action on the ground that his complaint is insufficient, and so obtain a dismissal of plaintiff's action for an injunction, or, if de

fendant be allowed to dismiss, plaintiff should be allowed time to commence an action to determine title, and dismissal of his action for injunction should be conditioned on his failure to do so.

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by the Wilkeson Coal & Coke Company against Arthur Driver and wife. Action was dismissed, and plaintiff appeals. Reversed.

Ashton & Chapman and Remington & Reynolds, for appellant. John P. Judson, for respondents.

SCOTT, J. This was a suit in equity. Plaintiff alleged that it was the owner of a certain piece of land described in the comp'aint, and that the defendants had repeatedly trespassed thereon, and had induced other persons to commit trespasses thereon, and were continuing so to do, thereby depriving the plaintiff of all use thereof, and that the defendants and such other persons so continually trespassing upon said premises were each of them insolvent, and a judgment against them would be uncollectible; that it would be a great hardship for the plaintiff to be compelled to bring numerous separate actions against said trespassers; and that plaintiff has no adequate remedy at law. Plaintiff further alleged that it owned and operated extensive coal mines adjacent to the land aforesaid, and had erected, at great expense, its offices, stores, supply houses and a great number of dwelling houses for its employés, in the immediate vicinity thereof, and that in order to secure the best results in its business, and to receive the reasonable value of the services of its employés, sobriety and abstinence from the use of intoxicating liquors among said employés was a primary requisite, and it was necessary therefor to put and keep its said employés beyond the reach of temptation to use intoxicating liquors, and that there were none such then in the vicinity, but that the defendants were then erecting a building upon the land described in the complaint, wherein the defendant Arthur Driver intended to start and maintain a saloon; that conducting a saloon thereon would occasion great and irrepara ble injury to the plaintiff, and greatly lessen the value of its property and injure its business, etc.; and that the defendants threaten to hold possession of said land by force, and to maintain a saloon thereon, during the pendency of any suits that might be brought against them to eject them from said premises. The complaint contained a prayer for an injunction against the defendants, preventing them from committing any trespass upon the premises aforesaid, and from completing said building, and also for a restraining order during the pendency of the suit, and contained a prayer for general relief. Notice was served upon the defendants to show cause why a restraining order

should not be issued, and a hearing was had thereon before the court on the 2d day of February, 1892. Whereupon, the court, first reciting the appearance of the parties, and the hearing of evidence in relation to the 1ssuance of a restraining order, and that as appeared "that the plaintiff was engaged in the institution of proceedings against the defendants for the purpose of trying the title to, and ascertaining the boundaries of, the land upon which the acts and doings sought to be restrained were being committed," ordered that until the final trial and disposition of such action, and until the final hearing of the case pending, the said defendants, and each of them, and all and every person claiming by, through, or under them, should be enjoined and restrained from committing any act of trespass upon the premises described in the complaint, and particularly from completing the building aforesaid in process of erection. To this. complaint, defendants interposed an answer and cross complaint denying the plaintiff's title to the land described in the complaint, and alleging title in themselves. At the time this action was commenced, and order granted, it is conceded that no suit had been instituted by the plaintiff to determine the title to the land in controversy, and that the reference to such proceedings in the order aforesaid was to a suit which the plaintiff was then contemplating and preparing to bring. Before the same was instituted, and on the 17th day of March following the granting of the order, the defendants herein instituted an action in equity against the plaintiff in this action, alleging that they and the defendant company were adjoining proprietors of certain real estate, and that the land in controversy in the former action was a strip adjoining the boundary or dividing line of said lands, and that each of said parties claimed to own the same in consequence of a controversy as to where the dividing lane was or should be located. And the plaintiffs prayed that the court should order the boundaries between said lands to be established and properly marked, and also for general relief. The defendant company answered, denying that the boundary line was located as claimed by the plaintiffs, and alleged that it was so located as to make the lands in controversy a part of the lands and premises owned and claimed by them. In the foregoing we have only sought to give a general description of the matters alleged in the pleadings in said actions, in order that the nature thereof might be indicated. On the 2d day of November, 1892, said actions were called up for trial, and the parties announced themselves ready for trial. Whereupon, the defendants herein moved the court to dismiss this action on the ground that the complaint "does not state facts sufficient to entitle said plaintiff to any relief in this court," to which the plaintiff objected, and objected to further proceeding with said action

until the other action had been tried to determine the title to the property in controversy. Whereupon, the defendants herein (the plaintiffs in said other action) moved to dismiss the same at their cost, to which the defendant company objected, and offered to make any amendments to their answer in said action which might be deemed necessary in order to make such action suitable to establish the boundaries, and try and determine the title to the premises in dispute, and announced themselves as ready to proceed and try the title to said premises. It was conceded that the company had not brought any action to try the title to said lands, but it offered to show that it had relied in good faith upon the action brought by Driver and wife therefor. The court overruled said objections, and allowed Driver and wife to discontinue the suit brought by them, which they did. Whereupon, the court also granted the motion aforesaid of defendants, Driver and wife, to dismiss this action, and the plaintiff appealed.

In granting said motion the court made the following order:

"This cause coming on to be heard upon the motion of the defendant to dismiss this cause upon the ground that the pleadings do not show or state facts sufficient to constitute a cause of action, or to authorize the court to grant any relief to plaintiff;

"And it appearing to the court that, in the order granting the preliminary injunction, it was ordered that the temporary injunction remain in force till the plaintiff should bring an action to fix the boundaries and determine the title to the premises on which the alleged trespasses were committed, and until said action should be determined; and the court now finds that no such action has been brought by said plaintiff, and no proceeding. has been commenced to determine said boundaries to try said title, except an action (No. 6,956) in this court, and commenced by defendant, in which the plaintiff made answer and a so-called counterclaim, which said action has been dismissed on the motion of plaintiff, the defendant herein, and which action this court finds was not suitable to determine said boundaries or to try said title;

"And the court, now being fully advised in the premises, sustains said motion:

"Wherefore, by reason of the law and the premises, it is considered and adjudged by the court that plaintiff's cause be and the same is dismissed without prejudice, and the defendants have and recover of and from the plaintiff their costs and disbursements herein, taxed at dollars, and that execu

tion issue therefor.

"To which ruling of the court, plaintiff excepts, exceptions are allowed, and thereupon plaintiff gives notice of appeal to the supreme court of the state of Washington.

"And plaintiff specially excepts to the second paragraph of this decree, which sets forth that the court finds that no action has

been begun to determine the boundaries of the premises on which the trespasses were committed, on the ground that no such evidence was offered or admitted in this cause. Exception allowed."

It appears thereby that the court dismissed the action upon a different ground than the one set up in the motion, but as the respondents contend that the motion should have been granted also because the complaint did not state a cause of action, and because the plaintiff had an adequate remedy at law, it will be necessary to consider these matters as well. We are of the opinion that the complaint was open to objections properly taken. The trespasses complained of, with the exception of the erection of the building in controversy, were not specifically set forth, the same only being pleaded in very general allegations; and a motion to correct the pleading in this particular, and to make the same more definite and certain, would doubtless have been granted. The cause of action set up with reference to the purpose of the defendants to start and maintain the saloon business in question was not sufficient to entitle them to an injunction, in our opinion, under the authority of Railroad Co. v. Whalen, 13 Sup. Ct. 822; but we are of the opinion that the complaint did state a cause of action, though the same was defective in form; and it is not essential to inquire at this time whether it was of equitable cognizance, for all parties had voluntarily submitted the matters in controversy to the consideration of the equity side of the court, and the question whether the plaintiff had an adequate remedy at law could not be raised at that time by the motion.

It is contended by appellant that the objection that the complaint does not state facts sufficient to constitute a cause of action cannot be taken by a motion to dismiss; that such point can only be raised by a demurrer to the complaint, or by an objection to the admission of evidence; and we are of the opinion that this point is well taken. It is specially provided as a ground of demurrer by the statute, and the fact that the complaint was defective in form was no ground for dismissing the action. If it did not state facts sufficient to constitute a cause of action, and was demurred to upon that ground, the plaintiff would have had a right to amend; and if the matters set up were not well pleaded, and a motion to make the complaint more definite and certain had been made and sustained, the same result would have followed.

Nor do we think the action of the court in dismissing the suit can be sustained upon the ground specified in the order. It is contended by the respondents that the action brought by them was brought under section 668, vol. 2, of the Code, and that the facts set up were insufficient to enable them to maintain the action thereunder, and that they were justified in dismissing the same. But this posi

tion is not tenable, in our opinion. The defendant company had raised no such question, but had in good faith tendered an issue to determine the ownership of the land in controversy, in the action which Driver and wife had themselves instituted for that purpose shortly after the granting of the restraining order in the former suit; and, conceding their right to dismiss said action, the plaintiff herein should have been given an opportunity to commence an action for such purpose, and the dismissal of this cause should at least have been conditioned upon its failure to do so.

Under the circumstances, we think the appellant was excused from bringing the action it contemplated bringing when the restraining order was obtained, and had a right to rely upon the action brought by the respondents for a like purpose, and consequently were not chargeable with any neglect or failure of duty in the premises. This being so, the order dismissing the action is not sustainable, and the judgment of the court must be reversed.

HAMAR v. PETERSON. (Supreme Court of Washington. June 13, 1894.) EQUITY-APPEAL-REVIEW OF FINDINGS.

A finding of partnership in an equitable action will not be disturbed where plaintiff testified positively to the fact of partnership and defendant to the contrary, and the confirming circumstances were about equally divided. Stiles and Anders, JJ., dissenting, on the ground that the findings did not amount to one of partnership.

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by Lars E. Hamar against Oliff Peterson. Judgment for plaintiff. Defendant appeals. Affirmed.

Wickersham & Reid, for appellant. Hans Spilde, for respondent.

HOYT, J. Some questions are raised as to the nature of the proceeding instituted in the lower court, and as to the form of the relief granted by the judgment therein. It is also claimed on the part of the appellant that the finding of the court that a partnership had ever existed between the respondent and the appellant was unwarranted by the evidence. It seems to us that this latter question is the only material one, for the reason that, if the finding of the court upon the question of partnership was correct, the other rulings do not adversely affect any substantial right of the appellant. If the partnership existed, it was in a court of equity that an accounting of its transactions should be had. Hence the court, and not the jury, would necessarily have to pass upon the questions in relation thereto; so that appellant