the policy; and denies that they have otherwise or at all performed all or any of the conditions of said policy on their part; and, for a further answer, set up that no notice or proof of loss had been given as required by the terms of the policy. Upon motion of the plaintiffs the denials of receiving notice and proof of loss, as well as the separate answer, were stricken out. The trial resulted in a verdict and judgment in favor of the plaintiffs, from which this appeal is taken.

The

The record discloses that at the trial the defendant moved to reinstate that portion of its answer so stricken out, and also offered evidence in support of it; that the court overruled the motion, and refused to receive such evidence, and charged the jury that "it is admitted in this case that the company did receive notice of this loss, and that it was in due form as required by the policy." The correctness of this instruction, and of the ruling upon the excluded evidence, is not questioned, if the portion of the answer referred to was properly stricken out. Our first inquiry, then, is whether the ruling of the trial court in striking out the said denials, and the further defense that no notice or proof of loss had been given at any time as required by the terms of the policy, was error. theory of the ruling was that the defendant, by its plea in abatement, admitted receiving due notice and proof of loss, and thereby waived any defect of form and substance in the same, and hence it was precluded from denying the allegation of notice and proof of loss, or affirmatively setting up that such notice or proof had not been given as required by the terms of the policy. The contention for the defendant is that a breach of the conditions of the policy, prescribing what the notice should be, and what the proof of loss should embrace, was a defense in bar of the action, and could not be disposed of by the plea in abatement, the object of which was to show that the action was prematurely brought. It is no doubt true that the condition in the policy regarding notice and proof of loss is wholly for the benefit of the insurer. The insured contracts to perform it, and until he does so he has no cause of action against the insurer. But, such condition being for the advantage of the insurer, it is in its option to waive any deficiency on the part of the insured in this respect. If there are any defects in the notice or proof of loss, to which the insurer objects, he should point them out, so that the insured shall have an opportunity to remove them, and perfect his proof. Good faith and fair dealing require that this should be done, and, if not so pointed out, that the insurer should be deemed to have waived such defects, or be estopped from setting them up as a defense. "The law," as Brown, J., said, "requires of the company entire good faith and fair dealing in its transactions with the assured in reference to the proofs; and hence it is bound to point out any defects of a formal charac v.37P.no.2-5

ter therein, that the assured may have an opportunity to correct them, and, if it accepts those served within the time named in the policy, it will be deemed to have waived defects, and to receive them in the performance of the condition of the contract." Armstrong v. Insurance Co., 130 N, Y. 566, 29 N. E. 991. This rule is just and reasonable. It aims to prevent insurance companies from lulling their patrons, as Stone, C. J., said, "into false security, by which they may lose the means and opportunity of remedying defects in their preliminary proof." Insurance Co. v. Felrath, 77 Ala. 201. Hence, in view of this duty of the insurer to the insured, any conduct or act of the company which may be taken as acceptance of notice and proof of loss will be regarded as a waiver of its right to object thereto on account of defects therein. In the case at bar the defendant, by its plea in abatement, sought to show that the action was prematurely brought, by alleging that it was begun before the 60 days had elapsed after due notice and proof had been received by the company. By its express wording the plea admits that due notice and proof of loss had been given and received, and the only issue was as to the lapse of time after the receipt of the same. This issue was decided adversely to the defendant, whereupon it sought to defeat the action by its denials of notice and proof of loss, and alleging affirmatively that such notice and proof were defective in form and substance, and did not comply with the terms of the policy. It was the duty of the company, if it intended to insist upon notice and proof free from defects or deficiencies, to apprise the assured of their existence, and afford the plaintiffs an opportunity to eliminate them. Certainly, if the company had done what in good faith it was required to do, and the plaintiffs had refused to amend the defective notice and proof, it is hardly probable that it would have simply sought to abate the action, when it had a defense in bar of it. does the answer, including the portion stricken out, state that the notice and proof of loss were given, and that the defendant had pointed out the objections to them, thus showing that the plaintiffs had an opportunity of remedying the defects. Yet the company availed itself of the. benefit of a plea in abatement, admitted the notice and proof of loss were given and received, and by so pleading must be considered to have accepted them, and thereby waived any and all objections to their sufficiency. We do not think, therefore, that there was any error in the ruling of the court in the particular under consideration.

Nor

The next assignment of error seeks to review the decision of the court in sustaining the objection to a question asked of K. Heidenreich. The question was whether or not her husband had a power of attorney to act for her in managing her property. She had already testified that he had acted for

her. The statement as to what was expected to be proven by the question shows that the answer would have been immaterial and irrelevant, for the reason, if there was a conspiracy or a willful burning of the property by the plaintiffs, or any one by their consent or connivance, the facts should have been alleged, which was not done. Matters in defense cannot be proven, unless they are pleaded. As to the question asked J. D. Heidenreich, we are not satisfied that it comes within the rule laid down in article 12, Steph. Dig.; and, like counsel, we have been unable to find any authority showing there was error in the ruling of the trial court.

The next objection is to the following instructions: "I instruct you that there was no evidence in this case tending to connect the plaintiffs with any acts of John or J. D. Heidenreich, in regard to the fire in question." The record discloses that there was some evidence offered on behalf of the company to the effect that the husband of one of the plaintiffs had threatened to set fire to the barn above mentioned, and to get rid of it; and some suspicious circumstances were shown, respecting his conduct, with a view to showing that the fire was willfully set by him in the barn. But there is no evidence tending to show that either of the plaintiffs had any knowledge of the same, or of any statement or act of J. D. and John Heidenreich, or either of them, which connected the plaintiffs with the fire. There being no error, it results that the judgment must be affirmed.

(26 Or. 89)

WELCH v. CITY OF ASTORIA et al. (Supreme Court of Oregon. July 5, 1894.) ENJOINING COLLECTION OF TAX-TENDER.

A bill to enjoin the collection of taxes will be dismissed when no tender is made of the amount of taxes admitted to be legally due.

Appeal from circuit court, Clatsop county; T. A. McBride, Judge.

Bill by Nancy Welch against the city of Astoria and others to restrain the collection of taxes. Complaint dismissed. Plaintiff appeals. Affirmed.

George Noland, for appellant. F. D. Wintou, for respondents.

LORD, C. J. This is a suit to restrain the collection of city taxes on certain real property owned by the plaintiff. The complaint is made up largely of averments which are intended to show that the defendant city, through its agents, purposely and fraudulently omitted and refused to assess mortgages on real estate representing a large sum, and that, by reason thereof, plaintiff's taxes are greatly increased, in the sum of

dollars. It also alleges that the sum of $537 is a reasonable tax upon the property of plaintiff, the same being based upon the

valuation put by the assessor and county court of Clatsop county upon the same property listed on the assessment roll of said county for the year 1892; that said plaintiff tendered said amount in full payment of all taxes, which tender was refused by the tax collector, who threatens to-and will, unless restrained by order of the court-proceed to sell said lands, and thereby create a cloud upon plaintiff's title therein, etc. A temporary injunction was granted, whereupon the defendants answered, specifically denying the allegations of the complaint, and setting up new matter as an estoppel, to which plaintiff demurred. Upon the issues thus joined the defendants filed a motion to "dissolve the temporary injunction for the reason that each and every material allegation of the complaint is denied by the answer filed, and that the complaint sets forth no equitable ground for an injunction," which motion was allowed, and a decree rendered dismissing the complaint, from which decree this appeal is prosecuted.

Our Code provides that "a mortgage, deed of trust, contract or other obligation whereby land or real property situated in no more than one county in this state is made security for the payment of a debt, shall, for the purpose of assessment and taxation, be deemed and treated as land or real property." Hill's Code, § 2730. It also provides that "all property, real and personal, within this state, not expressly exempt therefrom, shall be subject to taxation in the manner provided by law." Id. § 2729. The charter of Astoria provides that “the assessment of property must be made in the manner prescribed by law for assessing property for state and county purposes." City Charter, § 53. From these provisions, it is clear that mortgages are subject to assessment and taxation for municipal purposes. Balfour v. City of Portland, 12 Sawy. 122, 28 Fed. 738. To fraudulently omit them from the assessment roll is a willful violation of law, and a fraud upon the rights of taxpayers which entitles them to be relieved in equity of the tax in excess of that which is just and legal, upon the payment of what is due; and we do not understand that the court below held otherwise, but that it dismissed the complaint because the allegation of tender does not show that it was kept good by depositing the money in court, ready to be paid to the defendant. The allegation is "that said plaintiff tendered said amount ($537) in full payment of all taxes, and which tender was made both in money and in writing, the whole of which was refused by said chief of police." An allegation of tender is usually to the effect that the defendant has always been ready to pay the admitted debt, and before the commencement of the action tendered it to the plaintiff, and now brings it into court, ready to be paid to him. In other words, the plea of tender must be accompanied by the actual payment of the

amount into court, such payment being in fact set out in the allegation. As the allegation only shows that the plaintiff tendered the sum specified, as her just proportion of the tax assessed, to the chief of police, who refused to receive it in payment of her taxes, the court below was of the opinion that, as the plaintiff should be required to do equity as a condition of relief, the allegation ought also to show that the tender was kept good by a deposit in court. A court of equity will not extend aid to a party who is himself at fault. The rule is that he who seeks equity at the hands of the court must first do equity. Where a party comes into a court of equity, asking to be relieved of the payment of taxes on the ground of their being excessive or illegal, he must do equity, by offering to pay the amount justly due from him, and upon this condition alone will relief be granted. "It is not sufficient," says Mr. Justice Miller, "to say in the bill that they are ready and willing to pay whatever may be found due. They must first pay what is conceded to be due, or what can be seen to be due on the face of the bill, or be shown by affidavits, whether conceded or not, before the preliminary injunction should be granted. The state is not to be thus tied up, as to that of which there is no contest, by lumping it with that which is really contested. If the proper officer refuses to receive a part of the tax, it must be tendered, and tendered without the condition annexed of a receipt in full for all the taxes assessed." State Railroad Tax Cases, 92 U. S. 575. As we understand it, adopting the language of Mr. Justice Sawyer, "the court distinctly holds that some tax, according to some rule of taxation, ought to be paid on all taxable property, and that the bill which does not allege a payment of so much of the tax as the party concedes, or, if not conceded, may be seen from the bill, or shown by affidavits, ought to be assessed and paid, does not present any equity to justify an injunction." Here the amount of the tax conceded to be due is $537, but the complaint nowhere alleges payment or tender of such amount. The allegation is that the plaintiff tendered such sum to the tax collector, and that he refused to receive it. But, if such was the fact, it did not relieve the plaintiff from liability for her taxes. She is asking the interference of equity in tax proceedings, and as a condition of relief she is required to do equity; that is, she must first pay what is admitted to be due, before she can ask to be relieved from the balance. To entitle her to such relief the complaint must show that she has paid so much on the tax as is conceded to be due, before she presents any equity to justify an injunction. The complaint must aver payment or a tender of the amount of the tax that is admitted to be due and legal. But the plea of tender, being defective, for the reasons suggested, the plaintiff has not shown herself entitled

to the aid of equity to enjoin the collection of such tax. But in view of the fact that the complaint states ground for equitable relief, if the tender was kept good, and so alleged, the decree of the court below will be affirmed, except that the complaint is dismissed without prejudice.

(26 Or. 107)

CURTIS v. SESTANOVICH et al. (Supreme Court of Oregon. July 5, 1894.) MECHANIC'S LIEN-SUFFICIENCY OF STATEMENT OF CLAIM.

1. Under Hill's Code, § 3673, requiring the claimant to state the name of the owner of a building sought to be charged, a statement that claimants furnished materials to be used in a building for H. on land owned by him is sufficient.

2. Under Hill's Code, § 3673, requiring the claimant to state the name of the person to whom he furnished the materials, the statement that claimants furnished brick, and that the materials were furnished to S., the contractor, and were used in the building, is sufficient. 3. A notice that defendant and others were the original contractors, and had a contract to construct a building for H., sufficiently states that the contract was made with H.

4. Under Hill's Code, § 3673, it is not necessary that the claim should contain an itemized statement of the demand.

5. The date of the completion of the building need not be stated when it appears that the claim was filed within the required time.

6. Where a building was not completed until June 21st, a notice filed on July 20th was in time.

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by E. D. Curtis against A. M. Sestanovich and others. Judgment for plaintiff. Defendants appeal. Affirmed.

This is a suit to foreclose a mechanic's lien. The Pacific Builders' Supply Company, a corporation, furnished materials to the contractors, to be used, and which were used, in the construction of a brick building at Salem, Or., for John Hughes; and, not having received full payment therefor, filed with the proper county clerk, on the 20th day of July, 1892, a duly-verified claim of lien, of which the following is a copy: "Know all men by these presents that the Pacific Builders' Supply Company, a corporation under the laws of the state of Oregon, has, by virtue of a contract heretofore made with Sestanovich & Childs, George Ham, Joseph Nickum, and Wm. J. Kelly, of the firm of Ham, Nickum & Co., of Portland, Oregon, performed labor upon and furnished materials to be used in, and which were used in, the construction, alteration, repair, and completion of a brick building at Salem, Oregon, upon the premises hereinafter described, for John Hughes, the said Sestanovich & Childs, and George Ham, Joseph M. Nickum, Wm. J. Kelly, of the firm of Ham, Nickum & Co., being the original contractors, and having a contract for the erection, repair, alteration, and completion of said building upon said property belonging to said John Hughes. That the

that the name of the owner appears in the lien incidentally, or as part of the descrip tion of the property, but that he is the owner of the building sought to be charged must appear on the face of the lien as an independent matter, either directly or by necessary inference." The statute of California (section 1187, Code Civ. Proc.) requires the lien claimant to state in his notice the name of the owner or reputed owner, if known. In Mill Co. v. Garrettson, 87 Cal. 589, 25 Pac. 747, the lien claimant had stated in his notice that Garrettson was the owner of a lot, giving its description, and that he entered into a written contract with Wanberg & Nelson, by which they agreed to erect and finish for him a building on said lot. It was contended that the claim of lien was defective, in that it did not state the name of the owner of the building. The court in that case, in answer to the objection, say: "The above seems to be a sufficient statement that Garrettson was the owner of the building which was erected for him on his land, and that the materials were furnished to Wanberg & Nelson, his contractors. Το say that the name of the owner of the building, and the names of the persons to whom the materials were furnished, are matters of mere inference, since it does not necessarily follow that the owner of the land is the owner of the building, and the materials might have been furnished to a subcontractor or other persons, seems to us to be not even a plausible argument." The notice in the case at bar distinctly states that the building was erected for John Hughes upon real property owned by him. If it had stated that it was erected for some other person on Hughes' land, there then might be some question as to the ownership of the building. A house is presumed to be attached to the land upon which it is erected (Northrup v. Trask, 39 Wis. 515); and, had Hughes conveyed said real property, there can be no doubt from the statement contained in the notice that the brick building erected thereon would have passed to the grantee under the deed. We think that, while it is not stated in positive and direct terms that Hughes was the owner of the building, it is necessarily implied from the notice of lien that he was such owner. The statement that the claimant furnished materials to be used, and which were used, in erecting a building for John Hughes upon real property owned by him, is equivalent to saying that John Hughes owned the building.

2. The statute (section 3673, supra) also requires the lien claimant to state in his notice the name of the person to whom he furnished the materials. This is one of the essential requisites of the notice, and must be complied with before the lien can attach. Rankin v. Malarkey, 23 Or. 593, 32 Pac. 620, and 34 Pac. 816; Dillon v. Hart (Or.) 34 Pac. 817. It is averred in the notice that the claimant furnished materials to be used

in the construction of a brick building, etc., and in a subsequent clause that the materials so furnished to said Sestanovich and others, and used in said building, consisted of pressed brick and terra cotta. The notice might have stated the fact in more direct terms, but it is quite evident from an inspection of the instrument that the materials were delivered to Sestanovich and others. No other possible conclusion is deducible from the statement, and hence it complies with the statutory requirement.

3. The contractual relation existing between the owner of the building and the person having charge of the construction thereof should be stated in the notice when the labor has been done or the materials have been furnished at the instance of any other person than the owner. 2 Jones, Liens, § 1392; Rankin v. Malarkey, supra; Warren v. Juade (Wash.) 29 Pac. 827; Heald v. Hodder (Wash.) 32 Pac. 728. It is by virtue of this relation that the agent has authority to bind the property of his principal for labor done and material furnished in the construction, alteration, or repair of buildings. Hill's Code, § 3669. And, since the notice should show a prima facie right to the lien, it is essential to its validity that the relation existing between the parties should appear on the face of the instrument, either directly or by necessary inference. The notice in the case at bar states that Sestanovich and others were the original contractors, and had a contract for the construction of a building for John Hughes. It is not averred in the notice that said contract was made with Hughes, but we think it is reasonably inferred therefrom. If Sestanovich and others had alleged that they were subcontractors, it would not have followed that the contract had been made with him; but, having alleged that they were original contractors for the erection of a building for John Hughes, they must necessarily have made a contract with him, and hence the relation of the parties is necessarily inferred from the instrument.

4. Our attention has been particularly called to the fact that the notice does not contain an itemized statement of the demand, including the dates 'when said material was furnished. The statute (section 3673, su pra) requires the claimant to file with the county clerk a claim containing a true statement of his demand after deducting all just credits and offsets. In Ainslee v. Kohn, 16 Or. 363, 19 Pac. 97, it was held that the words, "a claim containing a true statement of his demand," did not imply that it should be an itemized statement. In Willamette Falls Co. v. Smith, 1 Or. 181, it was held that a complaint in a suit to foreclose a me chanic's lien should show the dates when the materials were furnished. In the case at bar it is alleged in the complaint that by virtue of a contract entered into between the Pacific Builders' Supply Company and