Subsequently a formal contract was entered at the time the appellant submitted his bid, in into by the terms of which the appellant un- the hands of the city treasurer. From an dertook to complete the work in accordance examination of the appellant's proposal or with the original plans and specifications, bid, it will be observed that with reference agreeing therein to perform the work under to the gross offer therein contained the bid the supervision of the city engineer. The is in the alternative; he offers to "perform contract also contained the following provi- the work according to plans and specifications sions: under the supervision of the city engineer for the sum of $76,141.35 cash, or for the sum of $78,547.35 payable in local improvement bonds, said bonds to be accepted at par value with accrued interest thereon." The appellant contended before the city officers, contended in the trial court, and contends here, that the contract entered into was a rejection of his offer to perform the work for a consideration payable in cash, but an acceptance of his offer to perform the work for a consideration payable in local improvement bonds; that by the terms of this part of the offer, he is entitled to bonds which on their face, exclusive of interest, equal the sum the con"The contract price herein agreed upon shall tract provides he shall receive in bonds. His include all the costs of preparing and fully present suit on this branch of the case has completing said improvement in every manner, its foundation in this contention. In the and the party of the second part shall save the defended on city harmless and shall be bound on its bond court below the city two for all damages suffered by reason of its neglect grounds: First, that it was not a proper to properly guard the streets or alleys during construction of the contract; and, second, the work of said improvement, and for failure that if the contract bears that construction, to protect life and property. "An approximate estimate of the cost of said improvement which the party of the first part agrees to pay the party of the second part is $78,547.35, to be paid in accordance with the unit bid submitted by the party of the second part and as shown by attached proposal, which is hereby made a part of this contract, and said improvement shall be constructed upon the streets covered by the outlet and mains shown by Exhibit A, hereto attached and made a part of this contract, such being outlet No. 1, main F, submain F 1 to 7 inclusive, laterals F1 to 22 inclusive, main E, submain E 1 to 3 inclusive, laterals E 1 to 13 inclusive; Main C, 1 to 2. The streets and alleys upon which the said improvement is to be made shall be as shown by the sewer map constituting a part of the plans and specifications. recovery, holding that the case fell within the principle of the case of State ex rel. Grant Smith & Co. v. Seattle, 74 Wash. 438, 133 Pac. 1005. But we agree with the appellant that the trial court must have overlooked the vital distinction between the facts of the two cases. This improvement shall be paid for in the it is ultra vires, because an agreement the following manner, to wit: That 15 per cent. city was without power to make. The trial of the contract price shall be paid for by gener-judge adopted the latter view, and denied al indebtedness warrants or cash, and that the balance, or 85 per cent. shall be paid for by the issuance of bonds issued on Local Improvement Sewer District No. 1, as created by said Ordinance No. 105, and in no event shall the said party of the second part make any claim upon the city from its general fund for the payment under this contract except as herein provided. "That on or before the 10th day of each month the said party of the second part shall receive the local improvement bonds and cash for 85 per cent. of the amount of work performed for the previous month, upon the order or the certificate of the engineer for the completed work as shown by said certificate and after being passed upon and approved by the city council. Said bonds or cash shall be delivered to the party of the second part by the city treasurer. Upon an order from the city council in a sum equal to the estimate of the city engineer, or as near thereof as is possible, on or before the date aforesaid of each month. The party of the first part shall, at all times, retain 15 per cent. of the different estimates of the amount of work completed, and no money or bonds shall be paid therefor until the final certificate of the completion of the work herein provided for shall have been filed with the city clerk." On the completion of the contract the parties were able, with the exception of the single item hereinafter noticed, to settle all of their disputes over the amount earned under the contract. A difference arose, however, over the amount the appellant was entitled to receive in bonds for the work. The evidence introduced at the trial disclosed that the local improvement bonds contemplated by the ordinance authorizing the work had been dated and signed at some time pending the progress of work under the original con [1] In the case cited it was not contended that the contract by which the contractors agreed to accept bonds in lieu of cash called for a delivery of bonds at their face value, less the accumulated interest, and the court well held that, in the absence of a contract calling for payment in that manner, such a payment would be an overpayment in the nature of a gift, and one not within the power of the city to make. But here it is the gist of the appellant's contention that his contract calls for a payment in bonds at their value, less the interest accumulated at the time of their delivery. Clearly, if under the statute forbidding the sale of local improvement bonds at less than par, the city may lawfully contract to pay the cost of a public improvement in bonds at all, it may contract to turn them over at the face value, less the accumulated interest. Cities are able to make public improvements by payment in bonds solely because the contractor can discount the bonds by increasing the contract price for the work, and it is just as lawful to discount them by deducting accumulated interest as it is to discount them by increasing the contract price in a sum equal to the amount of the accumulated interest. theless, on the first ground suggested by the the furnishing all special and other material. city. If we were to regard the language of needed. In the case of manholes the price bid the proposal itself as the governing consid-joints of pipe required for inlets to manholes shall include the furnishing in place of all eration in fixing the amount of bonds the ap- other than the main line of pipe, as shown on pellant is to receive for the work, it can be the plans or directed by the engineer." seriously questioned whether it will bear the The appellant contends that under the bid interpretation he puts upon it. But, be this as explained by the specifications he is enas it may, the contract subsequently entered titled, for the installation of a drop pipe into, where free from ambiguity, must meas- manhole, to the price agreed to be paid for an ure the rights of the parties, and we think ordinary manhole, plus $6.50 for each lineal its language clear on this particular question. foot of drop pipe used in such construction. The proposal, it will be observed, not only The city engineer construed the contract to contained gross bids for the particular work, mean that the appellant was entitled for a but contained a unit bid also; that is, a bid drop pipe manhole to the price agreed to be based on the units into which the work was paid for an ordinary manhole when the divided by the city in making estimates of depth was eight feet or less, and that sum, its prospective cost. In the contract it is re- plus $6.50 per foot for each foot in depth cited that the sum bid is an approximate es- over 8 feet. It was on the engineer's estimate of the contract price, which is "to timates that the city tendered settlement. be paid in accordance with the unit bid sub- The question, What is the proper construction mitted • as shown on the attached of the contract? is we think sufficiently doubtproposal." The contract differs from the ful to give rise to a legitimate dispute, and proposal also with respect to the amount of in such cases both the contract and the specthe contract price to be paid in bonds. In- ifications provide that the engineer's constead of providing that the entire cost of the struction shall be accepted by both parties work shall be paid in bonds, it provides that as final and conclusive. This would conclude but 85 per cent. of the cost shall be so paid, the matter but for the fact that the engineer, and that the remainder, 15 per cent., shall be while on the witness stand, expressed a paid either in cash or by warrants drawn doubt as to the correctness of his interpreupon the city's general fund. The term tation, and this, the appellant contends, opens "bonds" is used in the contract without qual- the doors to an investigation by the courts. 'ification, and without reference to the pro- But as we read his evidence, the engineer posal, or the explanatory phrase therein con- meant no more than to say that the contract cerning accrued interest. This must mean, was capable of a different construction from we think, that the city did not accept any that which he originally gave it, not that form of the proposal in its entirety, but used he had departed therefrom, or that his origiit rather as a basis for an independent agree nal construction found no support in the ment. This being so, the words and terms wording of the contract. Our conclusion is used therein must be given their ordinary that this branch of the case is foreclosed by and usual meaning, independent of any refer- the engineer's decision. ence to the proposal where the contract itself does not make such reference. The word "bonds," therefore, as used in the contract must be given the meaning that ordinarily obtains when used without explanation. In this case it would mean that the bonds are to be taken at their par value; that is, the face of the bond, plus the accumulated interest at the time of delivery. State ex rel. Grant Smith & Co. v. Seattle, supra. [2] The second matter in dispute arises over the price agreed to be paid for the installation of the drop pipe manholes. The proposal we have quoted in another connection. The specifications relating to the matter read as follows: "Ordinary manholes and flush tanks will be paid for on the basis of a depth of eight feet, with an additional amount for each foot for by which the depth exceeds eight feet, the price bid to include excavating and back filling, furnishing and settling iron castings and steps and completing the whole as set forth in the plans and specifications. The depth of manholes shall be measured from the invert of the pipe to the top of the cover as set to grade. Drop manholes will be paid for as above except that the drop pipe will be paid for on a basis of per foot of lineal length in place which price will include There is no reversible error in the record, and the judgment will stand affirmed. CROW, C. J and MOUNT, PARKER, and MORRIS, JJ., concur. JENNINGS v. SCHWARTZ. (82 Wash. 209) (No. 11851.) Nov. 14, SALES (§ 462*)-CONDITIONAL SALES-EXECU- Rem. & Bal. Code, § 3670, provides that all [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1350; Dec. Dig. § 462.* For other definitions, see Words and Phrases, First and Second Series, Sign.] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Department 2. Appeal from Superior the filing with the county auditor of the conCourt, King County; John E. Humphrie, ditional contract of sale. The trustee in Judge. bankruptcy conceived that the memorandum Action by I. H. Jennings, as trustee of the of the sale as filed was insufficient to impart Pacific Coast Glass Company, against Frank notice to such creditors, and instituted the Schwartz, sole trader doing business under present action to recover the value of the the name of the Alaska Junk Company. boiler. Recovery was denied him in the Judgment for defendant, and plaintiff ap- trial court, and he appeals from the adverse peale. Reversed and remanded, with direc-judgment entered. tions to enter judgment for plaintiff for $200. Nelson R. Anderson and France & Helsell, all of Seattle, for appellant. Wright, Kelleher & Caldwell, of Seattle, for respondent. FULLERTON, J. On August 23, 1912, the respondent, Schwartz, trading under the name of Alaska Junk Company, made a conditional sale of personal property, consisting of a steam boiler with fittings, to the Pacific Coast Glass Company. The property was delivered on the following day, and within 10 days from that time the vendor of the property caused to be filed in the auditor's office of the county wherein the vendee resided a memorandum of the conditions of such sale. The opening and closing clauses of the memorandum read as follows: "These presents witness: That the Alaska Junk Company, of Seattle, King county, Washington hereinafter called the vendor, has delivered to Pacific Coast Glass Co. residing at Seattle, in King county, Washington, hereinafter called the vendees, the personal property hereinafter described, under a contract of conditional sale. The terms and conditions of which contract of conditional sale are as follows, to wit: * * * "In witness whereof the parties hereto have caused these presents to be executed this 23d day of August, 1912." The principal question suggested by the record is the validity, as against the subsequent creditors of the bankrupt, of the contract of conditional sale. The statute regulating conditional sales of personal property is found at section 3670 of the Code (Rem. & Bal.), and reads as follows: "All conditional sales of personal property, or to purchase, where the property is placed in the leases thereof, containing a conditional right possession of the vendee, shall be absolute as to the purchasers, incumbrancers and subsequent creditors in good faith, unless within ten days after taking possession by the vendee, a memorandum of such sale, stating its terms and conditions and signed by the vendor and vendee, shall be filed in the auditor's office of the county, wherein, at the date of the vendee's taking possession of the property, the vendee resides. It is the contention of the appellant that the recorded memorandum of the conditional sale contract was not signed by the vendor within the meaning of this provision of the Code, and is therefore void as against the creditors of the bankrupt who became such subsequent to the delivery of the property to the vendee. From a mere reading of the section of the statute quoted, it will be observed that there is no question as to the necessity of a signing by both the vendor and vendee of the memorandum made of a The instrument was signed by the vendee conditional sale of personal property in order at the close thereof at the ordinary place of to render the contract valid against subsesignature. It was not signed by the vendor quent creditors in good faith of the vendee, personally, either with his proper or trade as the statute so declares in plain and unname, on any part of the instrument. The equivocal terms, leaving no room for doubt or only place his name appears is in the open-conjecture. It will be observed, also, that ing clause, where it was printed as a part this memorandum was not so signed, unless of the printed form which the draftsman it can be held that the printed trade-name of used who prepared the instrument. After the vendor in the opening clause of the inreceiving the boiler the vendee set it up instrument is the signature of the vendor. its manufacturing plant wherein it was used from about August 1, 1912, until the middle of November following, at which time the plant was permanently closed. The vendee defaulted in the last installment payment due on the purchase price of the property, and the vendor, in the early part of February, 1913, after notice, entered the plant and retook possession of the boiler. On February 11, 1913, the vendee was adjudged a bankrupt, and in due course of the bankruptcy proceedings the appellant, Jennings, was elected trustee of the bankrupt's estate. The proceedings in bankruptcy disclosed creditors of the bankrupt, who had become such subse quent to the delivery of the boiler to the vendee and prior to the time possession thereof was retaken by the vendor, and who had no notice of the terms of the sale other than To the question, what will constitute a signing of a memorandum within the meaning of this statute? the respondent cites and relies on the cases passing upon the some what analogous question, what will constitute a signing of a memorandum by the party to be charged under the statute of frauds? The cases upon the point from other jurisdictions, while not entirely harmonious, seem to announce the rule that to print, stamp, or typewrite the signature of the party to be charged on the instrument, whether at the top, in the body, on the side, or at the bottom, is a sufficient signing, if the instrument be delivered, acted upon, or disposed of by such person in such manner as to unequivocally show that he intended to adopt and recognize the signature as his own. Drury et al. v. Young, 58 Md. 546, 42 Am. Rep. 343: "It is objected that the defendant here is the party to be charged, and that the contract was not signed by defendant, or any one on its behalf. Assuming, for the present, that authority to sign was vested in the Secretary, the signature seems to fall directly within the rule stated in Tingley v. Bellingham Bay Boom Co., Wash. 644, 32 Pac. 737 [33 Pac. 1055]. There the memorandum was not signed by the defendant corporation, but the instrument was in the handwriting of the agent. (Mass.) 436; Deep River National Bank's | ly and customarily be written. Discussing Appeal, 73 Conn. 341, 47 Atl. 675; Weston the question the court said: v. Myers, 33 Ill. 424; Streff v. Colteaux, 64 Ill. App. 179; Chapman v. Inhabitants of Limerick, 56 Me. 390; Dreutzer v. Smith, 56 Wis. 292, 14 N. W. 465; Hamilton v. State, 103 Ind. 96, 2 N. E. 299, 53 Am. Rep. 491; Delaware Ins. Co. v. Pennsylvania Ins. Co., 126 Ga. 380, 55 S. E. 330, 7 Ann. Cas. 1134. Our own cases seem to have adopted this broader rule. Tingley v. Bellingham Bay Boom Co., 5 Wash. 644, 32 Pac. 737, 33 Pac. 1055; Eureka Sandstone Co. v. Long, 11 Wash. 161, 39 Pac. 446; Anderson v. Wallace Lumber & Mfg. Co., 30 Wash. 147, 70 Pac. 247; Degginger v. Martin, 48 Wash. 1, 92 Pac. 674. In the first of the cases cited from this court the memorandum in question was an agreement by which the party sought to be charged had undertaken to perform certain named services in driving logs. The memorandum was in the handwriting of the agent of the principal, and was not signed at the usual place of signature, nor did the promisor's name appear thereon other than in the opening clause of the agreement, which read as follows: "This agreement, entered into this 20th day of August, 1890, by and between the Bellingham Bay Boom Company, of Fairhaven, Washington, party of the first part, and J. H. Moore and others, respectively, whose names are hereto subscribed, parties of the second part, witnesseth," etc. This was held a sufficient signing to take the case out of the statute, which provided that a contract or promise which was not to be performed within one year from the making thereof was void unless such contract or promise, or some note or memorandum thereof, be in writing and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized. After mentioning certain acts thought to show a ratification of the agreement by the promisor the court said: "It is a well-established rule of law that a contract is signed, within the meaning of the statute, whether the name of the party to be charged appears at the bottom, top, middle, or side of the paper. Drury v. Young, 58 Md. 546 [42 Am. Rep. 343]; Clason v. Bailey, 14 Johns. [N. Y.] 487; Barry v. Coombe, 1 Pet. 640 [7 L. Ed. 295]; 1 Reed, St. Frauds, § 384." The case of Eureka Sandstone Co. v. Long, quotes from and cites the foregoing case with approval. Anderson v. Wallace Lumber & Mfg. Co. is similar in its facts to the case of Tingley v. Bellingham Bay Boom Co. There the vendor, in an agreement to sell real property, brought an action against the vendee to compel a specific performance of the contract. The vendee defended on the ground that the contract was within the statute of frauds, because not signed by it. The only place its name appeared in the instrument was in the body thereof, where according to the purport of the agreement it would usual "But it is contended that it must be shown that the name of defendant appears in some appropriate way to have been put in intentionally, to authenticate the memorandum. Conceding this, it is shown here that the agent wrote the memorandum, and wrote the name of defendant as vendee in addition to, and below, the printed name of defendant; and these facts are aided by the letter to President Black, signed by the agent. There can be no reasonable doubt that the vendor was bound by the memorandum, which purported to be a mutual agreement. The suggestion that it is in effect an option given by plaintiffs to defendant is not substantial. It purports to be an express agreement to convey the timber land, was so accepted by the defendant, and was so construed by the parties thereto; and a deed was thereafter drafted in pursuance thereof, by direction of defendant's officers, and executed by plaintiff, but defendant refused to receive the same." In Degginger v. Martin it was held that a contract of a broker to sell the land of his principal was sufficiently signed by the broker where the name under which he did business was typewritten at the usual place of signature, followed by his written initials. Conceding the statute to be analogous, these cases, it must be confessed, support the judgment of the trial court. But with reference to the statute in question, the court, in so far as it has heretofore had occasion to consider it, has shown an inclination to give it a more strict construction, or, perhaps, better, a construction more in accordance with the literal import of its terms. In the case of American Multigraph Sales Co. v. Jones, 58 Wash. 619, 109 Pac. 108, we held such a contract absolute as to subsequent creditors of the vendee because the memorandum was not filed with the auditor within ten days after the delivery of the Property, notwithstanding it was filed prior to the time the subsequent creditors became such, citing and quoting from with approvai the case of Chilberg v. Smith, 174 Fed. 805, 98 C. C. A. 513, where the Circuit Court of Appeals, in a case arising under the particular statute, announced the same rule. the same effect is the case of Worley v. Metropolitan Motor Car Co., 72 Wash. 245, 130 Pac. 108, where it was held that the memorandum of the sale must be executed within 10 days after the property is taken over, as it could not be antedated and made to answer the purpose of a chattel mortgage. In this case it was said: То "Whatever the general rule may be as to priority between creditors, we think this case must be decided by reference to the statute, and that alone. The provision that all conditional sales of personal property, where the property is placed in the possession of the vendee, shall be absolute is equivalent to the expression shall be void that is, of no legal force or effect as to purchasers, incumbrancers, and subsequent creditors in good faith-unless the requirements of the statute are followed." In the case of First Nat. Bank v. Wilcox, 72 Wash. 473, 130 Pac. 756, 131 Pac. 203, it was held that a conditional sale contract was absolute as to subsequent creditors, where the memorandum of the contract was not filed in the county of the residence of the vendee as such residence was stated in its articles of incorporation, although filed in the county where the property was delivered, and where the vendee had its mills and manufacturing plant. does the statute of frauds, its principal, if are Tested by the more strict rule, we clear that this memorandum was not signed by the vendor within the meaning of the The instrument would appear no statute. different on its face had it been prepared wholly by the vendee without the knowledge or consent of the vendor. Whether it was signed by the vendor or not was thus subject the question could only be determined by an examination into their acts and conduct. The rights of third persons should not be left to depend upon such circumstances; as to them the instrument should be fair upon its face. As this instrument is not thus fair, we hold the sale absolute as to subsequent creditors in good faith. The trial court found the value of the When the purposes of the different statutes are considered, there would seem to be a valid reason for construing the one more literally than the other. The statute of frauds, as its name indicates, was intended to prevent fraud through the instrumentality to dispute even as between the parties, and of mistake and perjury. It was intended to prevent one party to a contract from suffering loss through the parol testimony of a perjured or mistaken witness, who testifies to a bargain different from the one actually made. Since, therefore, the purposes of the statute are accomplished by the production of a writing which clearly evidences the bargain, the courts, in order that the one party may have the benefit of the bargain, have refused to allow the other party to escape by the plea of want of signature to the writing, where his name appears at some place thereon, and his conduct shows that he intended to bind himself according to the terms of the writing. But it must be conceded, we think, that some of these cases go to great lengths, and all of them clearly beyond the literal meaning of the statute. Perhaps their real justification is found in the fact that the courts thereby prevent the writing from operating upon the one party a fraud as great as the statute intended to prevent the want of a writing operating upon the other. Again, the statute directly affects the parties to the contract only; the public interest in the statute lies in the fact that its tendency is towards the promotion of good morals. It The statute in question has a wider effect. It has the elements of a recording act. will be remembered that prior to its enactment unrecorded conditional bills of sale of personal property were valid in this state, not only as between the vendor and vendee, but as to incumbrancers and purchasers without notice, and subsequent bona fide creditors of the vendee. It was thus possible for the vendee of such property to commit frauds by disposing of the property to innocent third persons and by using it as a basis upon which to obtain credit. While the statute therefore tends in the same degree to prevent frauds between vendors and vendees through the instrumentality of perjury, as boiler at the time it was retaken by the re- The judgment appealed from is reversed and the cause remanded, with instructions to allow a recovery in favor of the appellant, plaintiff below, in the sum of $200. CROW, C. J., and PARKER and MOUNT, JJ., concur. (82 Wash. 226) In re MARTIN'S ESTATE, POLK v. MARTIN. (No. 11932.) (Supreme Court of Washington. Nov. 14, 1914.) 1. APPEAL AND ERROR (§ 93*) — ORDERS AP PEALABLE. Rem. & Bal. Code, § 1450, requires the administrator to return into court, within one month after appointment, a true inventory of all decedent's property. Section 1458 declares that, whenever any property not included in the inventory shall come to the knowledge or possession of the administrator, he shall cause it to be inventoried and appraised as soon as practicable, and the making of such inventory may be enforced. Section 1461 authorizes complaint by an heir, etc., that property belonging to the estate has not been inventoried. Section 1716, subd. 6, authorizes an appeal from any order affecting a substantial right in a civil action which in effect determines the proceeding. Held, |