the contract, the defendant, Day, stated to him that he had a piece of land under bond, which he was willing to sell for $16,500 net to him, and asked him if they could procure a purchaser; that he told him he believed they could, and that thereupon Day listed the property with them at the price mentioned, agreeing to give them all over that price they could sell it for, and assured him that the title was all right; that they sold the property through L. H. Griffith & Co. to a Mr. Blewett for $18,000, and took a check thereon for $500, which he gave to the defendant at the depot of the Lake Shore & Eastern Railway as he (Day) was about to leave for home; that Day made no objection to the sale, and assured him that it was all right; that a day or so after that -the next day he thought-the defendant was down again, and they went to the office of Griffith & Co., and there met Mr. Blewett, who then again said he was willing to pay the price for the land. Witness did not purport to give all the conversation that took place there, but admitted that Day urged Blewett to take the property “before some little preliminaries of the title were straightened out, which Blewett refused to do. On crossexamination, witness also admitted that he had tried to get the Guaranty Title & Insurance Company to insure the title to the property, and that he failed to effect such insurance. He said he did not understand the failure was due to any defect in the title, but rather to delay upon the part of the company in acting upon the proposition. There was testimony to show that the attempt to insure was prior to the negotiations with Blewett. Edward Blewett, the person to whom the sale had been made, testified that he had no conversation with Mr. Day until he had bought the land from Mr. Griffith, and then went to see Day about the title. Day said he would clear the title up or give him the money back; that he asked him how long it would take to clear it up; Day told him, and he said he would take his money back; that by the terms of the proposed purchase, as he understood them, the title was to be made satisfactory to him. The defendant testified that, at the first conversation he had with Holman in regard to selling the land, he said to Holman that he had the property, under a bond for $16,000, from J. H. McGraw; that the bond would expire in 10 days, and that, if they could sell the land within that time, he would give them half of what they (the plaintiff and Day) could make out of it; that they made an effort, and failed, and when the bond was about to expire he again saw Holman, and told him he was going to be bothered to raise the money to take the land, and that, if they could make him $500 out of it, he would rather have that than nothing, and that they could have all they could sell it for over $16,500; that he did not discuss the matter of title with him; that he never said to them that the title to the land was good; that he did not pretend to have any title; that Holman saw the bond, and also an abstract of the title, which he got and gave to him, and

that Holman knew all about it; that at one time he had some talk with him about getting the title insured; that Holman at that time was trying to make a pool with other parties to take the land, and was afraid something might come up, and suggested that they get it insured, each of them to pay one-half of the cost. Holman testified that he made no effort to sell the property after the negotiations with Blewett.

Appellant moved to strike out the testimony of defendant as to the time the bond had to run, on the ground that it was not the best evidence. Testimony had been introduced tending to show the subsequent loss of the bond, which appellant claimed was not sufficient to admit parol proof of its contents. The court remarked that the witness had been allowed to testify to the length of time the bond had to run without objection, and denied the motion, to which appellant excepted. There was no error therein. The testimony was not offered to prove the contents of the bond, but was given in showing the defendant's version of the contract he entered into with the appellant, and as a part of the conversation which took place at the time between the defendant and Holman. The defendant further testified that he accepted the $500, and, when Mr. Blewett refused to take the property, he gave it back to him; that the bond had then expired, but that Mr. McGraw took no advantage of the lapse, and at his request executed a deed to Blewett, which he (Day) tendered to Blewett, and which Blewett refused to accept. Witness testified that he always believed the title to be good, and believed so now. The deeds showing the chain of title were not sent up, but it appears from the testimony that the defect complained of was that the deed to McGraw ran to "John H. McGraw, trustee," and a question was made as to the effect of such a description. The character of the defect, however, or whether there was any defect, is immaterial, if the contract was as claimed by the defendant, and the jury must have adopted his view of it. It is not contended that there was any unreasonable delay upon the part of Day in procuring and tendering the deed to Blewett, or in undertaking to carry out his part of the agreement. It is not claimed that any demand was made by appellant at the time Holman gave Day the check, or at any time that he should enter into a contract with Blewett. Had there been such a demand, and an unreasonable delay or failure upon the part of appellee, appellant's position would be well taken; and this would be true, in the absence of a demand, had there been any neglect or failure of the defendant to undertake to fulfill his part of the agreement. But there was no evidence of such a failure On the contrary, there was testimony by appellant that on the next day after defendant was notified of the bargain, he returned to town, and proceeded to perform his part of it, and that at this very time-the first meeting between Blewett and Day-Blewett objected to the condition of the title, and refused to take the property, which Day was urging him to

do, or to allow Day time to remove or correct the alleged defect. Undoubtedly, if the facts were according to appellant's contention that the contract with Day was the ordinary one to sell upon commission, and that Day represented that the title was all right, or if nothing was said about the title, and appellant had no knowledge of any defect therein which would be likely to cause a non-completion of a sale it might negotiate, appellant was entitled to recover. There was substantially no controversy over the law applicable to such contracts, but the jury found that the contract was as claimed by the defendant; that appellant's pay was contingent upon the fact that the sale should be completed; and that he (Day) should first receive $500 in excess of the $16,000 he was to pay McGraw; this was a condition precedent, and there was evidence to support the verdict, and that the circumstances connected with the property were known to appellant, and the contract between it and Day was made with reference thereto; that appellant as well as Day took chances upon the sale being completed and the money received; that it was a joint speculative undertaking, by which the profits were to be divided; that the second conversation was had in the light of the prior talk upon the subject, and was connected therewith; and also in the second conversation, according to the defendant's testimony, it was stated and made a condition that he was to first make $500 out of any sale appellant might arrange for or negotiate. How could Day make anything unless the sale was completed? The subsequent conversation, according to Day's version of it, simply provided for a different recompense to be paid appellant in case of a sale, from that which was first agreed upon, and did not change the previous understanding, except as to the price appellant was to receive; nothing was said by either party tending to show anything otherwise different. Appellant also claims that the instructions given to the jury were erroneous, but it does not appear that any exceptions were taken thereto, and consequently no point is raised as to them. Judgment affirmed.

lishment therein. Appellee did some work for appellant in the way of repairing. moving, and refitting various steam and soil pipes, and in changing some of the other appliances used in carrying ou said business, and furnished certain materials used in performing said work. Appellee's claim being disputed, he filed a notice of a lien purporting to cover appellant's leasehold interest in said rooms, and the engine, boilers, machinery, water-works, and all of the appliances used in said es. tablishment, and sought to foreclose such lien in this action. Appellant claimed that the work was not performed, and the materials were not used in the construction, alteration, or repair of the building, or of any structure; that it was all done or used upon personal property not attached to the building, so as to become a part of it; and that no lien could be had thereon under such circumstances; and appellant moved for a nonsuit upon this ground when the appellee's case was closed. The court reopened the case, to allow further proof by appellee of the nature and character of the work, and appellee introduced testimony in relation thereto, which, however, fully sustained appellant's claim that the things upon which the work was performed, and for which the materials were furnished, were all independent of the building and there was no testimony or proof to the contrary. Nevertheless, the court rendered a judgment and decree for the plaintiff. A further point is made by appellant that it was entitled to a trial by jury to ascertain the sum, if any, which it was owing, the amount claimed being disputed, and a trial by jury demanded. That there can be no lien obtained upon personal property, under the provisions of chapter 138 of the Code of 1881, relating to "liens of mechanics and others upon real property," under which the lien here is claimed, we have, in effect, decided since this case was tried in the superior court, (see Kellogg v. Manufacturing Co., Wash., 25 Pac. Rep. 461,) and there was no law authorizing such a lien. There is nothing in the case of which equity could take cognizance, and appellant's points are well taken. The case is reversed, and remanded to the court below, with instructions to dismiss the suit, without

(2 Wash. St. 457)

SCHETTLER V. VENDOME TURKISH BATH CO. (Supreme Court of Washington. June 17, 1891.) MECHANIC'S LIEN-FIXTURES-LANDLORD AND

TENANT-PERSONAL PROPERTY.

Code Wash. 1881, c. 138, which gives mechanics liens on real property, has no application to work done for a tenant on his machinery and appliances used by him on the demised premises, but not so attached to the realty as to become part of it.

Appeal from superior court, King county. Kilgen, Kelleher & Emory, for appellant. I. M. Hall, for appellee.

SCOTT, J. Appellant was a tenant occupying certain rooms in a building known as the "Kilgen Block," in the city of Seattle, and was conducting a bathing estab

recover the amount claimed.

ANDERS, C. J., and DUNBAR, HOYT, and STILES, JJ., concur.

(2 Wash. St. 476)

VAIL V. TILLMAN et al. (Supreme Court of Washington. June 19, 1891.) SPECIFIC PERFORMANCE-CONTRACT-MUTUAL MISTAKE-PLEADING.

A complaint for specific performance of a contract to convey one acre of land "off of the north-west corner" of a certain lot, for which the buyer is "to give his note, payable nine months from date," is sufficient on demurrer, when it alleges that it was intended to convey "one acre, to be taken in a square form out of the north-west corner" of such lot, the buyer to pay "one dollar in cash at this date, and the balance nine months from date," and that by mutual mistake these elements were omitted from the contract.

HOYT, J. Appellant by his complaint filed in the lower court sought to secure the specific performance of a contract for the purchase of certain lands therein described. The memorandum of the contract, reduced to writing, and signed by the appellees, was as follows: "This is to certify that we have this day sold to George W. Vail the following acre of land, to-wit, off of the north-west corner of suburban lot or block thirty-one, (31,) located on the town-site established by the U. S. government at Port Angeles, Washington Territory, for which we agree to make a warranty deed to George W. Vail and his heirs at our earliest convenience, and for which George W. Vail is to give his note, payable nine months from date, and a mortgage on the land purchased to secure the payment of the note." The complaint alleged that after the making of said contract the appellees put the appel. lant in possession of the land in question; that appellant, with the knowledge and consent of appellees, had fenced the same, and made certain improvements thereon, and was still in the open possession thereof. It will be seen, by an examination of said memorandum, that some of the elements necessary to a perfect contract are omitted, but I am inclined to the opinion that such omissions are not sufficient to invalidate said contract, when taken in connection with such possession and improvements, as the complaint alleges on the part of the appellant. But, be this as it may, the allegations of the complaint sufficiently show that the omissions in said memorandum occurred through the mutual mistake of the parties thereto, and that the contract which was in fact agreed to by the parties, and which was intended to have been embodied in said writing, was as follows: "This is to certify that we have this day sold to George W. Vail the following acre of land, to-wit, one acre, to be taken in a square form out of the northwest corner of suburban lot thirty-one, (31,) located in the town-site established by the United States government at Port Angeles, Washington Territory, for which we agree to make a general warranty deed at out earliest convenience, and for which George W. Vail is to pay us one hundred dollars, as follows: One dollar in cash at this date, and ninety-nine dollars nine months from date, with ten per centum per annum interest from date: and the said George W. Vail agrees to give us his note for said deferred payment, and to secure the payment of said note by a first mortgage on the said premises. I think the memorandum thus intended to have been executed is clearly within the principles of the case of Langert v. Ross, (decided by this court,) 24 Pac. Rep. 443, and must therefore be held to be sufficient.

The demurrer to the complaint, of course, admitted all the allegations as to mistake, possession, etc.; and, as the contract alleged to have been the contract of the parties as intended by them is sufficient, it follows that the demurrer to the complaint should have been overruled; and that, for the error of the court in sustaining it, the judgment must be reversed, and the cause remanded to the court, with instructions to overrule the demurrer, and proceed in said action in accordance with the principles of this opinion.

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

(2 Wash. St. 459)

MEESMAN v. STATE Ins. Co. (Supreme Court of Washington. June 17, 1891.) FIRE INSURANCE-ACTION ON POLICY-LIMITA

TIONS.

Where a policy of fire insurance provides that no action upon the policy "shall be sustained unless commenced within six months after the fire, an action cannot be brought on the policy after the lapse of six months and three days after the fire, even though the policy also provides that no action shall be begun until certain examinations have been made, which examinations were not made nor waived by the company until 13 days after the fire. DUNBAR, J., dissenting. Appeal from superior court, Clarke county.

E. E. Coovert and R. & E. B. Williams & Carey, for appellant. Gilbert & Snow, for respondent.

ANDERS, C. J. This is an action upon a fire insurance policy issued by appellant to appellee to recover a loss amounting to $221, alleged to have been sustained by appellee by reason of the destruction by fire of the property insured. The complaint was filed February 3, 1890, and service duly made. Defendant appeared and answered, setting up as a defense false representations made by plaintiff to defendant in his application for insurance, concerning his title to the land upon which the insured buildings were situated; and that, by the terms of the policy, action should be commenced thereon, if at all, within six months after the date of the fire. Plaintiff, in his reply, denied making any false representations, or that he knew that any statements or representations contained in his said application were false or untrue; and alleged that at the time of making application for the policy of insurance he fully and truly explained to the agent of the defendant, who received said application, the true nature of his right and title in and to said land; and that said agent thereafter filled out said application, and plaintiff signed the same in good faith, and relying upon and believing the statement of said agent then and there made to plaintiff that the said application was right an 1 in proper form. Plaintiff further alleged that his loss was adjusted by and between himself and the defendant on the 8th day of August, 1889. at $221. The issues having been thus joined, the case was tried by a jury, who returned a verdict in favor of the plaintiff for the sum claimed in the complaint. A

motion for a new trial having been denied, judgment was entered in favor of the plaintiff and against defendant for the amount specified in the verdict. Defendant brings the case to this court for review, and seeks a reversal of the judgment for errors duly assigned.

Counsel for appellant contend that the action is barred by limitation fixed in the policy for bringing the action; and, in order to determine that question, it becomes necessary to examine the contract as made by the parties thereto. Among the provisions in the policy are the following: "It is hereby expressly covenanted and agreed by the parties hereto that no suit or action against this company for the recovery of any claim under and by virtue of this policy shall be sustained in any court of law or chancery unless such suit or action shall be commenced within six months after the time the fire shall have occurred; and in case any such suit or action shall Le commenced against this company after the expiration of the aforesaid six months the lapse of time shall be taken and admitted as conclusive evidence against the validity of such claim, any statute of limitation to the contrary uotwithstanding. All persons

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having a claim under this policy for loss or damage shall proceed at once to put the property saved or damaged in the best order possible, separating the damaged from the undamaged, and shall give immediate notice, and render a particular account thereof, in writing, to the company stating the time, origin, and circumstances of the fire, the occupancy of the building insured or containing the property insured at the time of the loss, the whole value and ownership of the property insured, and all incumbrances; all of which shall be verified by the affidavit of the assured and claimant. If required, the assured and claimant shall be examined and re-examined under oath by any person appointed by the company, at such time or times and place or places, in the county where the loss occurs, as the company or such persons may require, touching all questions relating to the claim, and shall subscribe to the same; and until such examination (if required) shall have been submitted to, subscribed, and verified as herein specified, the company shall not be called upon to consider such claim or loss, nor shall the same become due and payable: * * # provided, fun ther, that it shall be optional with the company to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time, giving notice of their intention so to do within sixty days after receipt of proofs herein required; and, in case the company elect to rebuild, the assured shall, if required, furnish plans and specifications of the buildings destroyed. In case of any differences of opin ion as to the amount of loss or damage, such differences may be submitted to the judgment of two disinterested and competent men mutually chosen (who, in case of disagreement, shall select a third.) whose award shall be conclusive and binding on both parties as to the amount

only." The fire occurred on July 31, 1889. On August 8, 1889, the agents of the company went to the plaintiff to determine the amount of his loss. The plaintiff testified, "My loss was adjusted at $221.00;" and this was not disputed by the agents themselves when called as witnesses on the part of the defendant. They did not agree that the loss would be paid, but at most only promised to do the best they could for plaintiff. On August 13, 1889, however, the secretary of the insurance company wrote a letter to the plaintiff, in which he said: "We cannot see that you have any claim against this company for your loss, and must therefore decline to give the matter further consideration." As before stated, plaintiff commenced this action on February 3, 1890, which was six months and three days after the fire occurred. It is not claimed by counsel for appellee that the limitation of time expressed in the policy for the commenceinent of an action for the loss sustained is invalid, and, so far as we have been able to ascertain from an examination of adjudicated cases, such stipulations have been uniformly held valid and binding. But counsel contend that plaintiff could not have maintained an action against the company until August 13, 1889, at which time the company refused to pay the loss, and that the action was therefore commenced in time, although more than six months had elapsed since the happening of the fire. In other words, appellee claims that the time of limitation did not commence to run at the date of the fire, but at the time when the cause of action accrued, and that all of the provisions of the policy, taken together, warrant that construction. Numerous authorities are cited in support of appellee's contention. The decisions in these cases are based upon the assumption that the provision in the policy postponing a right of action until proof of loss is made, or until a certain number of days thereafter, is in conflict with the provision limiting the time within which an action may be com menced, and that these stipulations must therefore be harmonized by judicial construction. We cannot assent to this doc. trine. The most careful reading of the provisions and stipulations in the policy now before us will fail to disclose any conflict therein. In the case at bar every stipulation in favor of the company was waived, excepting that providing for the proof of loss. After adjustment of the loss, and the waiver of all other conditions, appellee still had five and one-half months of the stipulated time remaining. No excuse or reason is given by him for his procrastination; and yet we are now called upon to sustain the action, notwithstanding the delay in bringing it until after the contract limitation had expired, upon the ground that the contract really means something different from what it says. The parties stipulated that no action upon the policy "shall be sustained unless commenced within six months after the time the fire shall have occurred," and that "the lapse of time shall be taken and admitted as conclusive evidence" against the validity of any claim against the com.

pany. This language is certainly plain and unambiguous. The other stipulations simply provide that no action shall be commenced until certain things therein specified shall have been done; and the evident meaning of the whole contract is that no action shall be commenced before the doing of these things, nor, in any event, after the lapse of six months. This construction gives full force and effect to every stipulation and provision in the policy, and does violence to none. But it is urged by counsel for appellee that, inasmuch as the company has secured itself against being sued immediately on the occurrence of the loss, it must be presumed not to have been the intention of the parties to suspend the remedy, and at the same time to provide for the running of the period of limitation. We are unable to perceive, however, how any such presumption can arise without, in effect, substituting another and different contract for the one made by the parties. It was but natural and reasonable for the insurance com pany to protect itself against the cost and annoyance of an action until it could have an opportunity to investigate the circumstances attending the fire by which the loss occurred, and ascertain its liability, and determine whether to replace the property or pay the loss, or to refuse to pay it, if satisfied of the unjustness of the claim; and appellee, having consented to such a stipulation, should not now, in our opinion, be heard to object that the com. pany thereby waived or extended the limitation of time for bringing an action. It is proper to remark, in passing, that this policy differs essentially in the provision respecting the limitation of actions from most, if not all, of those in controversy in the cases cited by appellee. In most of those cases a period of 60 days was reserved after proof of loss, before the expiration of which no action could be commenced. And in the leading case of Steen v. Insurance Co., 89 N. Y. 315, cited by appellee, DANFORTH, J., says: "No doubt the appellant could have stipulated that the time of the fire should be taken as the event from the happening of which the limitation should run, but it would require distinct language to show that such was the intention of the parties. It is not used here. It is found in Schroeder v. Insurance Co., 2 Phila. 286, one of the cases cited by appellant." In the policy before us we have almost identically the same "distinct language" that was used in the policy in the Schroeder Case, and it is impossible to give it any different construction from the one there adopted. The following cases also support the view we take of this question: King v. Watertown Ins. Co., 47 Hun, 1; Travelers' Ins. Co. v. California Ins. Co., (N. D.) 45 N. W. Rep. 703; Bradley v. Insurance Co., 28 Mo. App. 7; Johnson v. Insurance Co., 91 Il 92; Fullam v. Insurance Co., 7 Gray, 61; Thompson v. Insurance Co., 25 Fed. Rep. 296; Insurance Co. v. Wells, 83 Va. 736, 3 S. E. Rep. 349; Tasker v. Insurance Co., 58 N. H. 469. Holding, as we are constrained to do, that the action is barred by the lapse of time, it is not necessary to exam. I

ine the other objections raised by appellant. The judgment of the court below is reversed, and the action dismissed.

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

DUNBAR, J., (dissenting.) I am unable to agree with the majority opinion in this case, either in its logic or its conclusion. Of course, if the provisions in regard to limitation were considered without reference to any other provisions in the policy, there is no room for construction, and this action would have been barred upon the 30th of July; but courts should not construe conditions in a contract as independent propositions segregated from the rest of the contract. This contract, like every other, must be construed with reference to all of its provisions, and especially must this provision be construed with reference to other provisions on the same subject. The subject of this provision is limitation, or the time within which the company should be sued or should not be sued. But there is another provision in the policy, that the company shall not be liable after the fire occurs until an examination is made of the loss, at such time or times as the company may require. This provision in the policy is on the same subject as is the provision relied upon by appellants. It is the subject of limitation, and prescribes the time during which the company cannot be sued for the loss. And the two provisions must be coustrued together, and the intention of the contracting parties must be gathered, not from any one express condition, but from the whole contract. Let us look further at the provisions of this policy. The time within which this proof must be made is not limited, but the time shall be at such time as the company shall require; and the law will probably construe this to be a reasonable time. But there is another provision which gives the company 60 days more after the receipt of the proof to make up its mind whether it will rebuild or pay the money. During this 60 days additional the company cannot be sued, and if at the end of that time it concludes not to pay at all, probably one-half of the time allowed the insured has expired. And, as the fallacy of a position is best shown by distorting it, I will presume that two more provisions granting additional time to the company are injected by them into the policy, and the time of the insured in which to seek his remedy shall be exhausted, and yet the language of the first provision in reference to the six-months limitation is perfectly plain and unambiguous. The general rule in regard to limitation is that it does not begin to run until after the right of action accrues. The very essence and central idea of the law is that the party shall have the right during all the time within the statute to bring his action, and, if anything occurs to prevent the exercise of this right, the statute in the mean time is not running. It is true that this is so by provision of the statute, but it is a pro vision so common, so generally under stood, and so universally acted upon, that