relief adversely to both. Rem. & Bal. Code, § 202. The court is required to determine the rights of the intervener "at the same time the action is decided." Rem. & Bal. Code, § 203.

there exists an election between inconsistent remedies, a party is confined to the remedy which he first adopts"-and that the law would tolerate no such absurdity as a recovery of a judgment against her attorney upon the claim that he had received payment from the judgment debtor, and the subsequent enforcement by her of the original judgment. In the accounting action the appellants here sought to have a judgment for money entered in their favor on an accounting which would include the notes and mortgage in controversy in the case at bar. It is obvious that the election to recover a judgment for the amount of the notes precludes the maintenance of an action for their cancellation. In Johnson v. Shuey, 40 Wash. 22, 82 Pac. 123, cited by the appellants, it was held that, where two or more persons are obligated to pay the same debt, the pursuit of one debtor does not relieve the other, unless the debt is collected from the debtor first pursued. It was said, however, that it is undoubtedly true that, where one has a choice of two or more remedies for the redress of one wrong, the selection of one is a bar to the subsequent exercise of any of the others. Dane v. Daniel, 28 Wash. 155, 68 Pac. 446, cited by the appellants, is not in point. In that case the first remedy sought was not an available one.

The other questions suggested are technical, and may be considered together. It is true that the present complaint in intervention was filed without having obtained the leave of court, and that it is called an amended complaint in intervention. Applications for leave to intervene are made ex parte, and the refusal of the court to strike the complaint in intervention is equivalent to an order permitting it to be filed. Rem. & Bal. Code, § 202. The fact that it is called an amended complaint does not make it so. It contains the proper averments of the making of the notes and mortgage and the ownership of the intervener. Payment is an affirmative defense, and no payment is pleaded. The appellants' contention was and is that there was no consideration for the note. The note and mortgage were admitted in evidence, and the entire amount was due when the judgment was entered.

The dismissal of the action as to the appellants did not affect the right of the in

The judgment is affirmed.

DUNBAR, C. J., and FULLERTON, PARKER, and MOUNT, JJ., concur.

(62 Wash. 526) HERBERGER v. H. E. ORR. CO., Inc. (Supreme Court of Washington. March 23, 1911.)

1. DAMAGES (§ 79*)-"LIQUIDATED DAMAGES" -UNCERTAINTY AS TO DAMAGE.

When damages arising from the breach of a contract are uncertain in their nature, and not readily susceptible of proof by the ordinary rules of evidence, and are not so disproportionate to the probable damages suffered as to appear unconscionable, and it is reasonably clear from the whole agreement that it is the intention of the parties to provide for liquidated damages and not a penalty, such a stipulation is for liquidated damages.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 164-169; Dec. Dig. § 79.*

For other definitions, see Words and Phrases, vol. 5, pp. 4175-4179.]

2. DAMAGES (§ 78*)-LIQUIDATED DAMAGES— CONSTRUCTION OF CONTRACT.

one-half of the lots owned by the seller on an Under a contract whereby one purchased agreement that, if a mortgage which they equally assumed, held by a third party, was paid by either party in full on the other's failure to pay, the latter would pay back, one-half of the amount so paid together with a bonus of $500, which amount and bonus, if not paid within six months, would constitute a lien on the property of the party failing to pay which could be foreclosed without right of redemption, the bonus is liquidated damages where there was no showing what loss the party paying the mortgage incurred in obtaining the money to pay the other sure of the third party's mortgage the nonpayparty's one-half, or what expenses of forecloing party avoided.

[Ed. Note. For other cases, see Damages, Dec. Dig. § 78.*]

Department 2. Appeal from Superior Court, King County; John F. Main, Judge.

Action by F. J. Herberger against the H. E. Orr Company, Inc. From a decree of foreclosure in favor of plaintiff, defendant appeals. Affirmed.

Charles P. Harris and Bamford A. Robb, for appellant.. Richard Saxe Jones, for respondent.

CROW, J. This is an appeal from a judgment and decree of foreclosure entered in favor of F. J. Herberger, plaintiff, against H. E. Orr Company, Incorporated, defendant.

The evidence is not before us; there being no statement of facts. The only question presented is whether the findings support the decree. The action as it now stands is for

Although the contract refers to the sum of $500 as a bonus, it is apparent that it was fixed by the parties as liquidated damages agreed upon for their mutual protection. "There are two excellent rules given for inferring that the parties intended the sum as liquidated damages: (1) Where the damages are uncertain, and not capable of being ascertained by any satisfactory and known rule, whether the uncertainty lies in the nature of the subject itself, or in the particular circumstances of the case, or (2) where from the nature of the case and the tenor of the agreement, it is apparent that the damages have already been the subject of actual and fair calculation and adjustment between the parties. As to whether a sum agreed to be paid as damages for the violation of an agreement shall be considered as liquidated damages or only as a penalty is held to depend upon the meaning and intent of the parties as gathered from a full view of the provisions of the contract, the terms used to express the intent, and the peculiar circumstances of the subject-matter of the agree ment. The contract is to govern; and the true question is: What was the contract?" 13 Cyc. 90. The damages which would result from appellant's failure to pay his proportion of the debt were uncertain and difficult of exact ascertainment by any known or satisfactory rule. It is apparent that the parties intended to agree upon some fixed sum to be so paid as liquidated damages and that they did agree, although the term "liquidated damages" was not used in their written contract. Appellant cites and relies upon McDaniels v. Gowey, 30 Wash. 412, 71 Pac. 12, but the instrument there sued upon, not at all similar to the one here involved, was held to be an indemnity bond, imposing a penalty, and not intended to fix any definite sum as liquidated damages. In Madler v. Silverstone, 55 Wash. 159, 104 Pac. 165, we said: "Generally speaking, it may be said that when the damages arising from the breach of the contract which the obligation is given to secure are uncertain in their nature and not readily susceptible of proof by the ordinary rules of evidence, and are not so disproportionate to the probable damages suffered as to appear unconscionable, and it is reasonably clear from the whole agreement that it is the intention of the parties to provide for liquidated damages and not a penalty, such a stipulation will be held to be one for liquidated damages." Applying this test to the contract now under consideration, we conclude that the parties intended to and did fix the liquidated damages which were not unconscionable in amount, and cannot be regarded as a penalty.

The judgment is affirmed.

(62 Wash. 564)

WAKEFIELD et ux. v. FISH et al. (Supreme Court of Washington. March 24, 1911.)

1. EVIDENCE (§ 596*)—EVIDENCE TO VARY. Evidence to vary a deed must be clear and convincing.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2446-2448; Dec. Dig. § 596.*] 2. MORTGAGES (§ 158*)-RECORD-PRIORITIES.

Under the recording acts, the question of priority between one holding a purchase-money mortgage and another cannot be raised, unless the mortgages concur in time or the priorities are controlled by some contract or equities arising between the several mortgagees.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 337-343; Dec. Dig. § 158.*1 3. MORTGAGES (§ 410*) - FORECLOSURE-JUN

IOR MORTGAGEE.

While a junior mortgagee may maintain foreclosure without redeeming or offering to redeem from a prior foreclosure, a decree of forwhere a prior mortgage had been foreclosed in closure was properly refused junior mortgagees proceedings to which they were not parties, the priorities between the parties except the second mortgagees established, and the amount of the would secure to such junior mortgagees all the respective debts ascertained, and a redemption rights they would have had, had they been made parties.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1178-1180; Dec. Dig. § 410.*]

Department 2. Appeal from Superior Court, Spokane County; S. Douglas, Judge. Action by Benjamin F. Wakefield and wife against E. H. Fish and others. From the judgment, plaintiffs appeal. Affirmed.

R. L. Edmiston, for appellants. Jackson & Bailey and E. D. Germain, for respondents.

CHADWICK, J. On September 1, 1908, appellants owned 160 acres of land in Spokane county, Wash. Desiring to dispose of this property, Mr. Wakefield went to Spokane, and there came in contact with a Mr. Michener, a real estate agent, who at the time had nothing to offer that was attractive to Mr. Wakefield. After a day or two he was introduced to a Mr. Schmidt, who had some real property and a small stock of merchandise at Hayford. Mr. Schmidt did not care to trade his land for Wakefield's property, and Mr. Michener brought respondents E. H. Fish and his wife, Grace, into the deal. They owned certain town lots in the city of Spokane. It was then agreed that Fish and wife would take Wakefield's property, that Schmidt would take the lots in Spokane, and Wakefield would take the property and stock of goods at Hayford, and deeds were executed accordingly. In the adjustment of the trade it was estimated that Schmidt had an equity of about $2,250 in his property. Upon further consideration, it was agreed that this equity did not exceed $1,000, and to secure the difference it was agreed that E. H. Fish and his wife

erty he had just bought from Wakefield to

Schmidt, this deed to be held in escrow by Mr. Michener subject to a collateral agreement that Fish would pay $500 to Schmidt on January 1, 1909, and $500 on July 1, 1909, and, in the event that such sums were not paid, the deed was to be delivered to Schmidt and he should thenceforth be the owner of the property. Schmidt's rights in the property and his interest in the contract were assigned to the Wakefields on December 12, 1908, and they are now seeking to enforce their rights thereunder.

On

The assignment was recorded February 13, 1909. Neither one of the payments was made under this collateral agreement. October 1, 1908, E. H. Fish and wife executed a mortgage on the Wakefield property in favor of Fred Fish, father of E. H. Fish, for $1,500, evidenced by two notes, one of date August 8, 1908, for $900, and the other of date October 1, 1908, for $600. This mortgage was foreclosed in April, and the property bid in by Fred Fish for $1,689.82, which is conceded to be the amount due on the judgment. In July, E. H. Fish and wife being still in default, Mr. Wakefield, as assignee of the escrow agreement, demanded the deed from Mr. Michener, and, having obtained it, filed it for record. An extension of the abstract of title disclosed the Fred Fish mortgage, its foreclosure, and the sale of the property, whereupon appellants brought this action, asking that the Fred Fish mortgage be held to be fraudulent as to them, that their escrow deed be decreed to be a mortgage and first in time, and for such other relief as they might under a full disclosure of the facts be entitled to.

As a premise to our conclusion of law, the following facts are pertinent: At the time the deed and escrow agreement was executed, it was understood that E. H. Fish and Grace Fish would undertake to get a loan on the property and pay off the $1,000 in the immediate future, and Mr. Michener and Mr. Schmidt undertook to and had made some arrangements for a loán, pending which E. H. Fish told them that it would be unnecessary for them to go further, as he had arranged to get a loan from his father at Colville. The parties had, however, with seeming intent to authorize the placing of a loan on the property to meet the debt due from E. H. Fish and wife to Schmidt, written into the mortgage (the escrow deed) that the premises "are free from all incumbrances except whatever incumbrance there may be by July 1, 1909." It is asserted by appellants that this clause was fraudulently inserted; that Fred Fish had notice of the escrow agreement, in that E. H. Fish was his agent; and that he is thus charged with notice of the rights of Schmidt and his assignees, these appellants; and, further, that the court erred in refusing to determine the priorities between the liens of the parties, and in refusing to decree a foreclosure of the deed mortgage.

Mr. Michener, who prepared the papers, was the agent of all parties to the transaction, and a careful reading of the evidence convinces us that the testimony is wholly insufficient to charge him or E. H. Fish with any fraudulent purpose or design in inserting the exception to the warranty clause. On the contrary, the evidence indicates that it was the understanding of all parties that a mortgage would be put upon the land. Schmidt and Michener had arranged for one when they were halted by E. H. Fish as before stated. Upon this very point Mr. Schmidt, although disclaiming knowledge of the exception to the warranty clause, said: "Mr. Fish and I had agreed on the escrow agreement and the deed was to go in escrow, and he was to have the privilege of putting a mortgage on the property to get the money to pay up the escrow. That was my understanding of it." Mr. Michener says that, after he had written the clause in the deed, he stated that it was unnecessary because Fish would have the right to make the mortgage in any event. But, if it should be held otherwise, the testimony offered to vary an instrument so solemn as a deed must be clear and convincing, and the record here is wholly insufficient to overcome the presumption of integrity attending the instrument. This has been so frequently held that a collection of the cases would serve no purpose.

The testimony shows that an attorney asked for permission and was allowed to inspect the escrow agreement and deed while it was still in Michener's possession. Whether he was acting as the agent of Fred Fish or of E. H. Fish is not made clear. Upon the theory that such knowledge as he obtained from the escrow agreement would bind Fred Fish, appellants rely on Dormitzer v. German Savings & Loan Society, 23 Wash. 132, 217, 218, 62 Pac. 862. It is said: "If Fred Fish relied upon the statement of his son E. H. Fish, with reference to the disputed clause. then E. H. Fish became his agent, and Fred Fish was charged with knowledge of all the rights of the parties possessed by E. H. Fish." Without undertaking to analyze the case relied on, it is sufficient to say that this theory cannot be sustained. There is nothing even tending to show that Fred Fish had any knowledge of the previous transactions of the parties, or that he did not rely upon the record title which was in E. H. Fish; or, if it be held that he did have notice of the escrow agreement and the excep tion to the warranty clause in the escrow deed under the facts as we have dis losed them, he had a right even then to take the mortgage; for, if the equities are to be measured, Schmidt, having notice of the fact that E. H. Fish was about to make a mortgage in favor of his father, might have giv en direct notice of his equities and his claim to the proceeds of the loan. Not having done so, he cannot charge Fred Fish with its wrongful application. From the whole rec

ord we are convinced that the mortgage was within the contemplation of all the parties, and, there being no evidence showing any fraud, we hold that the trial judge was correct in his conclusion that the rights of the appellants were subordinate to those of Fred Fish.

This conclusion disposes of the question of priorities, and that will need no further discussion, unless heed is given to the assertion of appellants that their escrow agreement and deed was in fact a purchase-money mortgage, and for that reason would take precedence over the mortgage of Fred Fish. To sustain this contention appellants rely upon Bisbee v. Carey, 17 Wash. 224, 49 Pac. 220, and Skeel v. Christenson, 17 Wash. 649, 50 Pac. 466. Under our recording acts, the question of priority between one holding a purchase-money mortgage and another cannot be raised, unless the mortgages concur in time, or the priorities are controlled by some contract or equities arising between the several mortgagees. The doctrine, if admitted at all, would not apply as against one who as we have held had a right to take the mortgage, although he had notice of the escrow agreement, and who had in addition the record title upon which he might rely.

Appellants' final contention is that, although their mortgage be held to be a second lien, the court erred in refusing a decree of foreclosure, asserting the familiar rule of law that a junior mortgagee can maintain a foreclosure proceeding without redeeming or offering to redeem. This rule cannot be seriously questioned, but where, as in this case, the prior mortgage has been foreclosed, there can be no reason for the application of the rule. The foreclosure proceeding established the priority of the Fred Fish mortgage as against all parties except these appellants. The most they can claim is that they were not made parties to the suit, and thus have a right of redemption. This the lower court held that they might still exercise. Another foreclosure would be futile. The priorities between the parties have been established and the amount of their respective debts as certained, and a redemption would secure to appellants all the rights they would have had had they been parties to the foreclosure proceeding. Affirmed.

the heirs, and who sanctioned the employment, must pay his proportionate share of the reasonthe amount or in the manner prescribed by the able value of the services, but he need not pay contract, in the absence of evidence that he sanctioned such contract.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 321; Dec. Dig. § 133.*] 2. ATTORNEY AND CLIENT (§ 144*)-CONTRACT

OF EMPLOYMENT-LIABILITY. Where a contract by an heir for the employment of an attorney to render services for all the heirs to recover real estate for one-half of the value of the land at the time of its recovery expressed on its face that it was made on behalf of all the heirs, and provided a manner of ascertaining the attorney's interest in liable for the fee if coheirs repudiated the conthe land recovered, the heir was not personally

tract.

PER CURIAM. The appellant, an attorney at law, brought this action against the respondents to recover for professional services. The record discloses that some time in the year 1890 one Christopher Hanson settled upon certain unsurveyed land situated in Chehalis county, intending to enter the same under the homestead laws of the United States as soon as they should be surveyed and become subject to entry. He continued to reside thereon until 1893, when he died; this time being prior to the time the lands became subject to entry. He left as his heirs at law the respondents above named. The surveys were extended over the land and the land became subject to entry during the latter part of the year 1893, when it was discovered that the land fell in section 36, a section that would have been reserved as school land had it been vacant at the time the surveys were extended over it. The portion settled upon, however, was subject to entry by Hanson's heirs, but they did not attempt to avail themselves of the opportunity until after the time fixed by law for such entry had expired. Subsequently they offered filings, which were rejected. Later on

(62 Wash. 492)

ABEL v. HANSEN et al. (Supreme Court of Washington. March 22, 1911.)

1. ATTORNEY AND CLIENT (§ 133*)-CONTRACT OF EMPLOYMENT LIABILITY.

An heir who knew of the employment of an attorney by a coheir to render services for all

fidavits tending to show an excuse for failing to offer filings within the 90 days limited by law. This offer was likewise rejected. Between this time and 1903, other attempts were made by one of the heirs to have the case opened which were likewise unavailing. In 1905, with the matter in this condition, the respondent entered into a written contract with the appellant, by which he agreed to pay him a fee equal to