(9 Wash. 308) WALES et al. v. DENNIS et al. (Supreme Court of Washington. June 29, 1894.) PARTNERSHIP-RECEIVERS-PRACTICE. In an action between partners for a dissolution and an accounting, where the complaint contains no allegations of the insolvency of defendants, who are actively carrying on the business, and the answer alleges that they are solvent, and able to respond in damages, and denies the equities of the complaint, a receiver should not be appointed before the final hearing of the cause. Appeal from superior court, King county; J. W. Langley, Judge. Action by Albert N. Wales and Ollie Wales against J. H. Dennis and M. E. Dennis for the dissolution of a partnership, an accounting, and the appointment of a receiver. From an order appointing a receiver, defendants appeal. Reversed. Hays & Humphrey, for appellants. HOYT, J. Plaintiffs filed their complaint, setting up the fact that they and the defendants had entered into a partnership for the conducting of a restaurant business in the city of Seattle; that the defendants had so misbehaved themselves in the prosecution of such business as to damage it; that they had failed to do their duty in regard thereto, and that they had denied to plaintiffs any participation in its affairs, or in the profits; and asking that the partnership be dissolved, that an accounting be had, that a receiver be appointed, and that they have their costs. It appeared from said complaint that the plaintiffs had been enjoined from conducting the partnership business in a suit by a person not interested in such partnership. This being so, it is doubtful whether or not the complaint stated a cause of action; but it is not necessary to decide that question. The defendants answered, denying the material allegations of the complaint. It appeared from the answer that the defendants were solvent, and that they were ready to put up a bond to indemnify the plaintiffs. In the light of these facts, should a receiver have been appointed to conduct the business pending the litigation? To do so was to indirecty nullify the injunction against the plaintiffs, as members of such partnership, from continuing its business. If the plaintiffs could not legally be engaged in the business, it is difficult to see how it was competent for it to be conducted in the joint interest of themselves and partners by a receiver. But, regardless of this question, there was enough in the answer to show that there was no necessity for the appointment of a receiver. There was no allegation in the complaint that the defendants were insolvent, and there was a direct allegation in the answer that they were solvent, and able to respond in damages. This being so, and the equities of the bill having been denied, a receiver should not have been appointed until final hearing of the cause. The order appealed from will be reversed, and the cause remanded for further proceedings in accordance with this opinion. DUNBAR, C. J., and SCOTT, STILES, and ANDERS, JJ., concur. (9 Wash. 310) THOMPSON et al. v. CITY OR TOWN OF SUMNER et al. (Supreme Court of Washington. June 29, 1894.) MUNICIPAL CORPORATIONS-CONSTRUCTION OF WATERWORKS-ORDINANCE. 1. An ordinance for the construction of waterworks in a city of the fourth class, which postpones its taking effect until its adoption by the qualified voters of the town, is void, though Laws 1893, p. 12, § 2, requires an approval by popular vote of the plan proposed by the council, since the ordinance itself must be a law in force independently of the popular vote. 2. An ordinance authorizing the construction of waterworks, which does not direct the giving of notice of election for the submission of the plan to a popular vote, as required by Laws 1893, p. 12, § 2, is void; and the construction of the waterworks is unauthorized, though the city clerk caused the notice to be given, and the election was actually held. Appeal from superior court, Pierce county; W. H. Pritchard, Judge. Action by W. L. Thompson and others against the city or town of Sumner and others to restrain defendants from issuing and negotiating bonds for the construction of waterworks. From a judgment for defendants, plaintiffs appeal. Reversed. A. R. Titlow, for appellants. Thos. Carroll and Hagerman & Carroll, for respondents. STILES, J. The respondent town, a municipal corporation of the fourth class, had taken steps towards, the construction of waterworks, under the act of February 10, 1893 (Laws 1893, p. 12), when this action was brought to restrain a proposed sale of bonds. The court below, after trial, refused the relief asked, and plaintiffs appeal. Many points of objection to the validity of the town's action are made in the brief, but only two of those which apply to the ordinance by which jurisdiction of the subject was acquired need be referred to. 1. Section 7 of the ordinance reads as follows: "This ordinance shall take effect and be in force from and after its passage, publication and adoption by the qualified electors of the town of Sumner." An ordinance of this kind cannot be made to depend upon the result of the election. It is true that by the provisions of the law the town could not proceed with the execution of the plan proposed by the council until it had been approved by the affirmative vote of the electors; but the ordinance itself must be a law in force. with the exception mentioned, independently of the popular vote. The election could be called only by virtue of the order contained in the ordinance therefor; so that the post ponement of the power to hold an election until the ordinance should be adopted by the qualified electors was to postpone it indefinitely. 2. The ordinance contained no provision for notice of an election. The statute requires a waterworks proposition to be submitted at a special election, notice of which must be given to the newspaper doing the city printing, but nothing is said as to who shall give the notice. Gen. St. § 669, however, prescribes that the council shall give notice of each election. The ordinance should have directed that notice be given, and named the executive officer who should prepare and furnish to the publisher a notice in the name of the council. In the absence of an ordinance providing for an official newspaper, this ordinance should have specified the paper in which publication should be made. The act of the clerk, in printing a notice in a paper of his own selection, was without authority, and did not amount to notice. Force v. Batavia, 61 Ill. 103; Gaddis v. Richland Co., 92 Ill. 119; Dill. Mun. Corp. § 197; McCrary, Elect. § 161. Judgment reversed, and cause remanded for entry of judgment in accordance with the prayer of the complaint. DUNBAR, C. J., and SCOTT, ANDERS, and HOYT, JJ., concur. (9 Wash. 312) DEBENTURE CORPORATION, LIMITED, 1. Code Proc. § 519, which authorizes the purchaser at a judicial sale to take possession on the day of sale until a resale or redemption, applies to mortgage foreclosure sales. 2. Code Proc. $ 513, which gives a mortgagor one year within which to redeem from a foreclosure sale, does not by implication repeal section 519, authorizing the purchaser to take possession on the day of sale. Appeal from superior court, King county; J. W. Langley, Judge. The Debenture Corporation, Limited, of London, England, foreclosed a mortgage executed by Susan F. Warren and others. At the sale James F. Gifford became the purchaser. His demand for possession was refused, and he petitioned for a writ of assistance. From an order sustaining a demurrer to this petition, complainants appeal. Reversed. Allen & Powell, for appellants. Hart & Hart, for respondent Susan F. Warren. HOYT, J. This appeal is from an order sustaining a demurrer to the petition of the appellants, and denying the relief therein prayed for. Respondents moved to dismiss the appeal upon the ground: First, that it was not taken in time; and, second, that the bond was approved before the date of the taking of the appeal. The record fails to show that the respondents ever served notice, in writing, of the entry of the order upon the appellants; and, under the provisions of the statute of 1893,' the appeal was in time. The action of the appellants in giving the bond on appeal was in substantial compliance with such statute. The motion will be denied. Upon the merits the only substantial question to be decided is as to when the purchaser at a foreclosure sale is entitled to the possession of the property purchased. There are other questions discussed in the brief of the respondents. They relate to the procedure adopted by the appellants, and to the parties who are entitled to inaugurate the same. In regard to these matters it is only necessary to say that, if the purchaser was entitled to possession at the time demand therefor was made on the mortgagor, the petition was sufficient to put in motion the powers of the court in aid of its process, to the end that the possession to which the purchaser was entitled thereunder should be secured to him. Upon the main question numerous authorities have been cited by the respective parties, but they furnish little aid in its determination, for the reason that its decision so largely depends upon our statute. It is contended upon the part of the respondent that the title does not pass until the expiration of the time for redemption, and that, under the general rule, the right to possession would not accrue until such title had passed. That such is the law, in the absence of any express statute upon the subject, is conceded. But we have an express statutory provision. It is found in section 519 of the Code of Procedure, which is in the following language: "The purchaser from the day of sale until a resale or redemption, and the redemptioner from the day of his redemption until another redemption, shall be entitled to the possession of the property purchased or redeemed, unless the same be in the possession of a tenant holding under an unexpired lease, and in such case shall be entitled to receive from such tenant the rents or the value of the use and occupation thereof during the same period." And under it we must hold that the purchaser is entitled to possession from the day of sale, if that section ap plies at all to sales made upon the foreclos ure of a mortgage. Its language is too explicit to allow of any construction whatever. Does it apply to foreclosure sales? It is general in its language, and the chapter as a part of which it was enacted in the Code of 1881 clearly refers to sales under mortgage foreclosure as well as other sales. And there is nothing in the nature of such sales which makes such a provision inapplicable thereto any more than to other sales on execution. There is no reason why one who has his property sold upon an execution should be at once deprived of its possession, and one 'Act March 8, 1893, § 3. who has like property sold in a foreclosure proceeding should be allowed to retain possession until the right of redemption has expired. We are unable to agree with the contention of the respondents that the effect of the passage of the act of February 3, 1886, the substance of which is now contained in section 513 of the Code of Procedure, was to repeal the provisions of said section 519. Before the enactment of that statute there was little need of the aid of section 519, so far as foreclosure sales were concerned; but that fact is not sufficient to authorize us to hold that a statute general in its terms, and clearly covering one class of cases, is repealed by another statute, which brings another class within its purview. In our opinion, the purchaser was entitled to possession upon demand any time after confirmation of the sale upon presentation of a certificate from the sheriff; and that, such being his right, and it being derived solely from the process of the court, it had jurisdiction to entertain a proceeding in the original action by which such rights could be secured. The order will be reversed, and the cause remanded, with directions to overrule the demurrer to the petition. DUNBAR, C. J., and SCOTT, ANDERS, and STILES, JJ., concur. (9 Wash. 329) STATE v. REIS et al. (Supreme Court of Washington. June 30, 1894.) LARCENY EVIDENCE. Under an indictment for grand larceny, proof that defendants conspired to cheat a person while pretending to play at cards, and that, while so pretending, defendants snatched from such person a sum of money, is sufficient to sustain a conviction, as it is not necessary to set forth in the indictment the conspiracy or the manner in which the money was taken. Appeal from superior court, King county; T. J. Humes, Judge. Matt Reis and Tom Rauschman were convicted of grand larceny, and appeal. Judg ment affirmed. Jas. Hamilton Lewis and G. D. Farwell, for appellants. John F. Miller, Pros. Atty., and A. G. McBride, Dep. Pros. Atty., for the State. STILES, J. Appellants were accused by information of the crime of grand larceny. The information was in the usual form, and we find no valid objection to it; nor do we conceive that counsel for appellants, although much of their argument in the brief is devoted to the insufficiency of the information, really expect relief on that ground. The actual objection is that the case against appellants, as proven, is at variance with This section provides that the mortgagor may redeem the property sold at any time within one year. the one pleaded against them in the information. But this, again, arises out of the failure of the defense to appreciate that it was upon the testimony of the prosecuting witness, Bunce, that the appellants were convicted, and not upon that of the defendants, or of those witnesses who heard him say that his loss occurred because defendants did not play fairly at cards. Upon Bunce's testimony as clear a case of larceny was made out as the books report, and the after-conduct of the defendants strongly tended to corroborate his version of the story. But it was not necessary to write into the information the probative facts of this larceny, viz. the conspiracy of defendants to cheat and swindle Bunce while pretending to play at a game of cards, the snatching of Bunce's money out of his hand by Reis, and the latter's instantly handing it over to Rauschman, on the pretense that it had been won on a bet. No common-law offense need be charged in that way, nor need it be charged in any other way than as required by statute. The ultimate fact was that appellants took, stole, and carried away Bunce's money. The evidence overflowed with sufficiency. There seem to be no further objections which are sustained by exceptions in the record, and the judgment is affirmed. DUNBAR, C. J., and HOYT, SCOTT, and ANDERS, JJ., concur. (9 Wash. 325) NOYES v. LOUGHEAD et al. (Supreme Court of Washington. June 30, 1894.) PLEADING STRIKING FROM FILES-LANDLORD AND TENANT-LEASE. 1. While a motion to strike an answer from the files, and for judgment for want of an answer, is not directly recognized by statute, still, where a party, after a ruling that certain facts constitute no defense, serves an amended answer, setting up the same facts, such answer should be stricken out. 2. In an action on a bond to secure rent, it appeared that plaintiff rented a building to defendant L., the lease stating that the building was in course of construction, to be completed March 15, 1890; that the lease was for five years, to commence on a blank date, and end on a blank date; that defendants N. and K. executed a bond for payment of the rent, the terms of the lease being referred to in the bond; that it was stated in the bond that the lease should commence at the completion of the building. Held, that the lease commenced to run from the completion of the building, as the statement in the lease that the building was to be completed on a certain date was not a covenant that it would be completed on that date. Dunbar, C. J., dissenting. Appeal from superior court, King county; T. J. Humes, Judge. Action by John Noyes against J. H. Loughead, J. N. Kahaley, and J. C. Nixon to recover on a bond given as security for rent. Plaintiff moved to have defendants' answer stricken from the files, and for judgment for want of an answer. The motion was granted, and defendants appeal. Judgment affirmed. Stratton, Lewis & Gilman and Smith & Littell (Junius Rochester, of counsel), for appellants. Strudwick & Peters, for respond ent. HOYT, J. In the cause in which this appeal was prosecuted, the defendants filed an amended answer, which was challenged by demurrer, and held insufficient. After this they filed their second amended answer, setting up substantially the same defense as in the first one. Thereupon, respondent moved the court to strike it from the files, and for judgment on the pleadings for want of an answer. Motions of this kind, under the circumstances of this case, are not directly recognized by our statute, and the practice of interposing them should not be encouraged, as there is usually a more orderly way to reach defects in pleadings, and one which will better preserve the right of amendment so liberally provided for in our Code. But where a party, having just had a ruling that certain facts constituted no defense, comes again into court, relying upon an answer setting up only the same facts, he cannot complain if the court strikes it from the files, and proceeds to judgment as though no answer had been filed. And since that is substantially what was done in this case, we are not disposed to disturb the action of the court in that regard. The other question presented by the appeal is as to the sufficiency of the answer as to which the court sustained the demurrer, and this must depend entirely upon the construction to be given the bond upon which the action was brought, and the lease referred to therein. If, construing these two instruments together, it appears that it was in the contemplation of the parties, at the time the bond in question was given, that the lease was for five years, commencing on the 15th day of March, the facts alleged in the answer constituted a defense to the action. If, however, the construction of these instruments establishes the fact that it was intended that the lease was to be for a period of five years from the time the building was completed, the facts set out were not sufficient. The bond refers to the lease, and to the rent to grow due thereunder. The provisions of the lease, so far as this question is concerned, provide, substantially, that the party of the first part leases to the party of the second part the building in question for the period of five years, said building being now under course of construction upon certain lots, by the said plaintiff, under contract with Heatherington, Clements & Co., architects, and to be completed on or about the 15th day of March, 1890. It is contended, on the part of the appellants, that the statement that it was to be completed on or about the 15th day of March, 1890, was the fixing of a definite day when the lease should commence, and that, if the building was not finished at that time, the lease would be ineffectual. It is doubtful whether this would be taken to have been the intention of the parties if there was nothing else in the lease, or in the bond which was executed in connection therewith, which could aid in determining such intention. It might well be held that this clause was inserted by way of description of the building, and to show that, under the contract for its construction, it was to be completed on a certain day. This would be more reasonable than to hold it to have been a covenant on the part of the lessor that the building would be ready for occupancy on that date, and that, if it was not, he would respond in damages. There are, however, other expressions in the lease and bond which furnish material aid in arriving at the intention of the parties. The lease is for the definite term of five years, but is, by its terms, to commence on a blank date, and end on a blank date. Though the terms of the lease are referred to in the bond quite fully, it is nowhere referred to as commencing on a certain date, but is always spoken of as commencing upon the completion of the building, and ending five years from that time. In our opinion, the lower court rightly construed the lease as being one to commence upon the completion of the building, rather than upon any certain day, and, this being so, the facts set up in the amended answer constituted no defense. The judgment will be affirmed. STILES, SCOTT, and ANDERS, JJ., con cur. DUNBAR, C. J. (dissenting). I think the answer shows that there was such a variation of the terms of the contract that the sureties were released, and the motion for judgment should have been denied. I am, therefore, compelled to dissent. (9 Wash. 331) BERGMAN v. SHOUDY et al. (Supreme Court of Washington. July 3, 1894.) EXAMINATION OF WITNESS-USE OF MEMORANDA. A memorandum of the contents of a trunk, made from an inspection seven months after the same was deposited for storage, and after the sale thereof for storage charges, cannot be used by a witness to refresh his memory as to the contents of the trunk and the value thereof at the time they were deposited for storage. Appeal from superior court, King county; R. Osborn, Judge. Action by Mary Bergman against John A. Shoudy, James H. Stevens, and Fred S. Sylvester, partners as Shoudy Bros. & Co., for conversion. Judgment was rendered for plaintiff, and defendants appeal. Judgment reversed. Allen & Powell, for appellants. Turner & McCutcheon, for respondent. DUNBAR, C. J. This was an action instituted by respondent against the appellants to recover the value of a certain trunk and its contents, which was stored with appellants, who were warehousemen. The trunk remaining in storage for such a time as was regarded by the appellants as unreasonable, it was sold for storage charges. It appeared upon the trial that, at the time of receiving the trunk, the appellants gave to the respondent the following receipt: "No. 421. Shoudy Bros. & Co. Storage Receipt. Seattle, Wash., Apr. 23, 1891. Received in store from M. Bergman the following described property, subject to his order upon surrender of this receipt and payment of charges, on the condition that Shoudy Bros. & Co. shall not be liable for loss by fire or any extraordinary act of the elements, nor for damage by rats, mice, moths, or any other vermin, nor from frost, riot, insurrection, or war. Rates of storage: .50 per month. 1 trunk, [marked] original." In testifying to the contents of the trunk and the value of such contents, the plaintiff was permitted, over the defendants' objection, to use and testify from a certain memorandum which purported to contain a list of the several articles contained in the trunk, with their respective values, which memorandum was made on the 29th day of November, 1891, after she had inspected the contents of the trunk, subsequent to the sale. We think there is no substantial merit in the first and second assignments of error by appellants, but are satisfied that the third assignment is meritorious, and that the court should not have permitted the plaintiff to use the memorandum in testifying. The statement of facts shows that the trunk was deposited on April 23, 1891, and the memorandum was not made out until November 29th, following; hence it will be seen that it was over seven months from the time the trunk was deposited, and was in the possession of the respondent before the memo randum was made, and was in no sense a memorandum from which the witness could refresh her mind concerning what the contents of the trunk were, or the value of the contents, at the time it was deposited. A memorandum of this kind appeals to the mind of the jury as being something reliable; and if a witness, after so great a length of time, is allowed to introduce this character of testimony, it is very liable to prejudice the minds of the jurors. The general rule is that a witness may, while under examination, refresh his memory by refer ring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that it will reasonably appear that the transaction was fresh in his memory. Reyn. Steph. Ev. p. 189. The circumstances, as testified to by the respondent, show that the memorandum in this case did not fall within this rule. Such being the case, the memorandum should not have been brought to bear upon the jury. For the error committed in this respect, the cause must be reversed, and a new trial granted. ANDERS, HOYT, STILES, and SCOTT, JJ., concur. (9 Wash. 366) STATE ex rel. MCLEOD V. SUPERIOR COURT OF THURSTON COUNTY et al. (Supreme Court of Washington. July 9, 1894.) AMENDMENT OF PLEADING. Allowing defendant to file an answer on the merits, after the issue in an answer setting up the pendency of another action has been decided against him, is within the jurisdiction of the court. Petition for certiorari by the state of Washington, on the relation of Alexander McLeod, against the superior court of Thurston county and J. C. Horr. Denied. Robinson & Linn, for relator. HOYT, J. Relator brought an action against J. C. Horr, in the superior court of Thurston county. Said Horr, by way of answer to the complaint, set up the fact of the pendency of another suit in relation to the same subject-matter. To this answer a reply was filed, and, upon the issue thus made, a trial was had. Thereupon the court made an order finding that there was no cause pending, at the time of the commencement of the action, in which the parties and the issues were the same, and therefore found for the plaintiff. Immediately upon the entering of said finding, plaintiff moved the court for judgment according to the prayer of his complaint, and the defendant asked leave of the court to file a further answer going to the merits of the action. Upon the hearing of said motions, the court entered an order denying that of the plaintiff, and permitting the defendant to further plead. These are substantially the facts set up in the petition of the relator as the foundation for his application for a writ of certiorari to said superior court and said J. C. Horr. It was conceded, upon the argument, that, if the proceedings of the court above set forth were within its jurisdiction, the application must be denied, however erroneous the making of the order may have been. But it is contended, on the part of the relator, that the making of such order was in excess of the jurisdiction of the court, and that, for that reason, he is entitled to have the proceedings certified here for review. It is claimed by him that by the filing of his answer, setting up alone the fact of the pendency of another suit, the defendant waived the right to make any other defense, and that it was beyond the power of the court to allow him thereafter to file another answer. That a judgment in favor of the plaintiff, rendered upon the determination of |