profits of the business between Mr. Sloggy and Mr. Prickett and himself, as the check evidenced. I might add that the checks ran in groups of three of equal amounts at that time." This was a disinterested witness, and this bookkeeping had principally been done by Mr. Pike.

by the court that the defendants had a right to divert water from the Yellowhawk creek along the route of the iron pipe line across the plaintiffs' lands and to a two-fifths interest in the Robinson ditch. As a result, much of the vital part of the action has been eliminated, leaving subsidiary and minor From the whole record in the case we are questions for determination and settlement. convinced that there was a partnership in- So that the questions brought here on appeal terest of one-third resting in Prickett, and are simply moot questions, or at least aftherefore the judgment will have to be re- fect only the merits of the case in so far as versed and the case remanded, with instruc- they bear upon the question of damages. tions to try the case on the theory that a Contentions were made under the compartnership existed, and make such disposi-plaint concerning the lack of defendants' tion of it as the law and the facts will war- riparian rights, which were abandoned at the rant.

(59 Wash. 479)

BECK et al. v. BONO et al.

trial, and from the examination of the voluminous testimony in the case we think the award was, to say the least, as favorable to the appellants as they deserved. The only contention that can affect appellants' rights, so far as the judgment for damages is con

(Supreme Court of Washington. Aug. 5, 1910.) WATERS AND WATER COURSES (§ 152*) -DI-cerned, is that there is a defect of parties, VERSION INJUNCTION-PARTIES.

Other appropriators of waters of the creek above the lands of the parties need not be made parties to an action to determine whether defendants shall be enjoined from wrongfully diverting waters to the damage of plaintiffs. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 152.*]

Department 2. Appeal from Superior Court, Walla Walla County; Thos. H. Brents,

Judge.

Action by C. A. Beck and another against Charles Bono and another. Judgment for plaintiffs. Defendants appeal. Affirmed.

Brooks & Bartlett, for appellants. Sharpstein & Sharpstein and Edward C. Mills, for respondents.

PER CURIAM. This was an action brought by the respondents, seeking to enjoin appellants from interfering with certain water rights claimed by the respondents, for the establishment of such rights, and for the damages for the illegal use of the waters of certain streams in Walla Walla county. The riparian rights of the parties to the action were determined by the court, and judgment was decreed in favor of the plaintiffs (respondents) against the defendants (appellants) for damages in the sum of $400

and costs.

The appellant, in commencing his argument, says this cause is characterized in its inception by the unwarranted deprivation through the interposition of the court of the rights of the defendants to the use of any of the water of the Yellowhawk creek on

the Bono 10-acre tract, and of the use of the water from the Robinson ditch on any of their lands, and in its conclusion by an attempt to extort damages in an amount the existence of which is sought to be established rather by the enormity of the demand than by persuasion of the evidence. It was finally conceded by the plaintiffs and granted

because it is alleged by the appellants that there were appropriators of the waters of this creek above the land of the parties to this action. It is not necessary to make others parties to this action to determine whether the defendants should be enjoined from wrongfully diverting waters to the damage of plaintiffs. That is a question of proof. Under the allegations of the comand we think the proof sustained the alleplaint, they were entitled to the injunction, gations.

From a careful examination of all the tes

timony in the case, we are not inclined to
disturb the findings of the court in reference
to the amount of damages adjudged.
The judgment is affirmed.

(59 Wash. 698)

MCDONNELL v. CŒUR D'ALENE LUM-
BER CO.

(Supreme Court of Washington. Aug. 6, 1910.)
En banc. On rehearing. Affirmed.
For former opinion, see 106 Pac. 135.

PER CURIAM. After a rehearing of this case en banc, a majority of the court adhere to the rule and conclusion reached upon the first hearing, and the judgment is therefore affirmed.

(59 Wash. 455)

STANDARD FURNITURE HOUSE v.
BURROWS.

(Supreme Court of Washington. Aug. 4, 1910.)
REPLEVIN (§ 107*)-JUDGMENT-CONDITIONAL
SALES-PART PAYMENT.

It being evident, under the pleadings in replevin for goods sold conditionally, that the real contention was not over the title of the property but over the amount actually paid, and as to whether part of the goods described in the agreement had been delivered to plaintiff;

and the title in such conditional sales being held only for security, and all damages to the seller from breach of the contract being the amount due and costs of its recovery, and the court, under the ordinary rules of pleading, where issue is joined, having jurisdiction to enter any judgment and give any relief consistent with the case made by the pleadings, it was not error on the court finding an amount due, but less than claimed, to provide in the judgment that defendant might retain the property if, within a certain time, he pay the amount due with costs and attorney's fees.

[Ed. Note.-For other cases, Dec. Dig. 107.*].

see Replevin,

Department 2. Appeal from Superior Court, Spokane County; J. D. Hinkle, Judge. Replevin by the Standard Furniture House against Mrs. M. A. Burrows. From part of the judgment, plaintiff appeals. Affirmed. Smith & Mack, for appellant. Birdseye & Smith, for respondent.

its costs and disbursements in the action, the fourth finding being that, in the event that she should within 10 days pay into court the sum of $79.80 and all costs of the action and $25 attorney's fees, the defendant should be entitled to retain and keep the property described in the complaint; and judgment was entered in accordance with such finding. To this finding an objection was taken, and it is assigned as error here, the contention of the appellant being, in effect, that the court was without jurisdiction to make such finding or render such judgment; that all that it could do was to give a judgment for the return of the property or its value.

There is no statement of facts brought here from which this court can determine the cause of these seemingly inconsistent findings. But from an examination of the pleadings in the case, we are of the opinion that the court did not go beyond its jurisdiction in making DUNBAR, J. The plaintiff and defendant the ruling complained of, for from the comentered into a certain conditional sale con-plaint, answer, and reply, it is evident that tract for certain personal property delivered the real contention was not over the title of by the plaintiff to the defendant. The con- the property, as is generally the case in actract provides that the title shall remain in tions in replevin pure and simple, but over the plaintiff until the full amount agreed to the amount that was actually paid, and as to be paid therefor shall have been paid, stating whether a portion of the articles described in the dates and amounts of payments. The the agreement had actually been delivered to agreed value of the property was $507. A the defendant. The court must have found failure to make a certain payment resulted that the full amount demanded by the comin the bringing of this action to recover the plaint was not justified, for the complaint alproperty, and the property in the complaint leged in substance that the defendant had failwas alleged to be of the value of $250. An ed. in payments to the extent that she had affidavit in replevin was executed, and a bond only paid $355.95 on the agreement to pay given. The defendant, to retain the property, $507, which would leave a deficiency of gave a redelivery bond, and kept the same. $151.05. The court found that the defendant The defendant then answered, admitting the was in default $79.80, so that it is evident conditional sale contract, but alleging full that the plaintiff was demanding $71.25 more compensation thereunder; admitted the de- than it was entitled to; and the real contromand of plaintiff for the property, and by versy under the pleadings in this case was way of counterclaim, alleged that the plaintiff over the amount due, if any, under this conwas indebted to the defendant in the sum of tract. If appellant's theory of the law is cor$41.63. Upon these issues the case was tried. rect, it would be unsafe for a defendant in an The complaint alleged that the plaintiff had action of this kind to challenge the correctpaid on the contract the sum of $355.95, and ness of the plaintiff's demands, for fear that prayed for a judgment for the possession of a failure to substantiate its own claim in the property or for the value of the same, and every particular would result in working a for costs and attorney's fees. The court forfeiture of all that had been paid. It is found, among other things, the execution of hardly necessary to assert the oft-repeated the instrument as alleged, the value of the statement that forfeitures are abhorrent to property to be $250; that the defendant had the law, and will not be declared, if there is failed to make the payments at the time and any other reasonable theory upon which the in the amounts provided in said conditional case can be settled. sale contract; that at the time of the commencement of the action there was due and owing to the plaintiff by the defendant, on the purchase price of the property, the sum of $79.80; that the plaintiff was the owner of, and legally, lawfully, and rightfully entitled to the immediate possession of, the property, and in the event said property could not be delivered, said plaintiff was entitled to a judgment against defendant in the sum of $250; that the plaintiff was entitled to the sum of $25 attorney's fees, and to recover all

Again, under the ordinary rules of pleading, where there is an answer to a complaint, and issues joined, the court has jurisdiction to enter any judgment and give any relief consistent with the case made by the pleadings. In these conditional sales, the title is held only for security, and when that is ac complished and the vendor gets the whole amount due and costs expended in its recovery, he has certainly recovered all the damages that have resulted from a breach of the contract. This is the equitable doctrine

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

which is supported by a great majority of the est thereon from the date of the commenceadjudicated cases. ment of this action."

*

To the same effect is National Cash Register Co. v. Wapples, 52 Wash. 657, 101 Pac. 227. Again, the controversy came up over the turning in as part payment of an old cash register at a certain given price, and this court said: "In this case the installments were past due. None of the payments had been made at maturity, except the payments made at the time of delivery. All the subsequent payments were made after maturity. The vendee was in arrears with his payments, but he was not in default. And if he was in default, such default was waived by the vendor because no demand had been made for the property. The vendee might at any time, even after an action in claim and delivery was begun, pay the whole amount due with interest and costs, and acquire an absolute title." See, also, Gilbert Co. v. Husted, 50 Wash. 61, 96 Pac. 835.

An equitable judgment which was warranted under the pleadings was rendered in this case, and the same will be affirmed.

RUDKIN, C. J., and MOUNT, PARKER, and CROW, JJ.,

concur.

(59 Wash. 460) NATIONAL BANK OF COMMERCE v. L. KILSHEIMER & CO., Inc., et al.

In Puffer & Sons Mfg. Co. v. Lucas, 112 N. C. 377, 17 S. E. 174, 19 L. R. A. 682, certain personal property was sold by the plaintiff to the defendant, and the following provision was in what was termed a lease: "But upon any breach of the provisions of this lease, especially upon failure by the said lessee to pay the several obligations, or either of them, as they become due and payable, then this lease, and any and all claim or right on the part of said lessee under the same, and to further use and possession of said property, shall be thereby terminated, and the said A. D. Puffer & Sons Mfg. Co. may thereafter, at any time, enter the premises where said property may be, and resume possession of the same, without process of law, or let or hindrance. In deciding the case, it was said: "To permit the so-called 'lessor' to resume possession of the property, and declare all payments forfeited, when perhaps all but one may have been paid, is contrary to the fundamental principles observed in courts of equity;" stating that, among the very few cases which might be considered as holding or intimating a contrary opinion is one from their own court, but distinguishing that case and finally concluding: "But if that is a just construction of the language used, the decision does not meet with our concurrence." The same equitable doctrine has been announced by this court in National Cash Reg-(Supreme Court of Washington. Aug. 5, 1910.) ister Co. v. Petsas, 43 Wash. 376,, 86 Pac. 662. 1. RECEIVERS (§ 137*)-SALE-CONFIRMATION— CORRECTION "MISTAKE." There there was some agreement about turning in an old register on payment for the new, and receiving a credit of $43.75 therefor. This court, in speaking on that subject, said: "In other words, respondent had the privilege of paying $43.75 by delivering the old register to appellant. He never made said payment. Consequently full payment for the new register has never been made. Said written order or agreement provided that the title to the new register should not pass until the purchase price should be paid in full. Said purchase price not having been paid, appellant was justified in bringing this action." This is exactly a parallel case with the one at bar. According to the finding of the court, all the purchase price had not been paid, and the appellant in this case as in that was justified in bringing the action. But this court continued: "The judgment of the honorable superior court is reversed, and the cause remanded to the trial court with instructions to grant judgment for the recovery of the new cash register, together with damages for its being withheld, unless within 30 days from the filing of the remittitur in the lower court the respondent shall deliver to appellant the old cash register in as good a condition as it was at the time of the commencement of this action, or to pay to the appellant the sum of $43.75 with legal inter

Ballinger's Ann. Codes & St. § 5153 (Pierce's Code, § 1033), relating to the modification of judgments and orders and providing in subsection 3 that the same may be modified for solely to mistakes of the clerk, but to any mismistakes, etc., of the clerk, etc., does not apply take warranting a modification of the judgment in furtherance of justice, and in view of section in furtherance of justice, etc., amend any plead4953 (section 424) providing that the court may, ing, etc., or by correcting a mistake in any other respect, the court had jurisdiction to modify an order of confirmation of a receiver's sale so as to conform the same to the order of sale. [Ed. Note. For other cases, see Receivers, Dec. Dig. § 137.*

For other definitions, see Words and Phrases, vol. 5, pp. 4539-4542; vol. 8, p. 7722.] 2. RECEIVERS (§ 137*)-Sales-Order of ConFIRMATION-MODIFICATION.

An order confirming a receiver's sale was with the amount of goods purchased by the reproperly modified so as to charge the purchaser ceiver to carry on the business and on hand at the time of the sale.

[Ed. Note. For other cases, see Receivers, Dec. Dig. § 137.*]

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by the National Bank of Commerce against L. Kilsheimer & Company, Incorporated, and others. From an order modifying an order confirming a sale by Elmore Winkler as receiver of defendant, J. Aronson appeals. Affirmed.

Leopold M. Stern and J. W. Russell, for appellant. R. E. Thompson, Jr., for respondent.

goods as are now contained in said store which were purchased by the receiver since the taking of the inventory." Shortly after the filing of this order of confirmation by the attorney for respondent, he discovered that the stock had not been sold in conformity with the order of sale made by the court, which order was substantially set forth in the notice of sale which had been published, and informed the attorney for the appellant that he should ask the court to vacate the order of confirmation and have it made in conformity to the order of sale. The attorneys not being able to agree on this proposition, a petition was filed, asking the court to vacate the order of confirmation. Issues were made, and the cause was tried, and the court modified the order to correspond with the order of sale and notice of sale by deductions and additions, to be determined as follows: "Less the proportionate value of said goods originally listed in the inventory filed herein June 28, 1909, which are not now contained in the store of the defendant corporation, and plus the proportionate value of such new goods as are now contained in said store which were purchased by the receiver, such proportion shall be determined by the ratio which the amount of the bid bears to the value of the property sold, such value being fixed by the inventory in the case of old goods and by the cost price in the case of goods purchased by the receiver since taking the original inventory." We should have stated that the petition for modification shows that, under the conditions as expressed in the confirmation as amended, Aronson, the appellant, was indebted to the estate in the sum of $1,189.78, which was the amount which really was due if computed according to the terms of the last order confirming the sale, and the order of the court commanded him to pay that amount. From this order this appeal is taken.

DUNBAR, J. On the 9th day of June, 1909, Elmore Winkler, the respondent in this case, was appointed receiver of the defendant corporation, took charge of the assets, filed an inventory on the 28th day of June, 1909, and carried on the business of the defendant corporation, retailing liquors, cigars, and cigarettes, until the time of the sale hereinafter mentioned. On the 2d day of July, 1909, he petitioned the court for permission to sell the balance of the stock of defendant corporation, together with the fixtures, etc., and an order was made authorizing the receiver to sell in bulk, and fixing the time of sale. The receiver advertised for bids on said stock and fixtures, to be opened on the 12th day of July, 1909. On said 12th day of July, the receiver received five bids for said stock, of which that of Max M. Pullman and Hyman N. Krasnoff for $5,000 was the highest, and on the 13th of July the receiver made his return of sale to the court, and recommended the acceptance of the Pullman-Krasnoff bid. In the meantime negotiations were opened between the high bidders for the stock and one J. Aronson, providing said bid was accepted and the sale confirmed. On the 16th day of July, 1909, an order was made confirming the sale, and directing the receiver to sell and convey to Aronson the stock, etc., and Aronson paid to Pullman and Krasnoff the sum agreed upon between them as the purchase price of their rights under their bid. Such rights were assigned to him. The original order of sale, while not in so many words specifying the condition of sale, is plainly construed to mean that the purchaser should receive credit proportionately to the total value of the goods originally listed in the inventory, which had been disposed of be- It is not contended by the appellant that tween the filing of the inventory and the sale, the order of confirmation was, in truth and the confirmation of which was asked. The in fact, in accordance with the order of sale, receiver recommended the confirmation of the but his contention is that the court erred in sale, and, on the 16th day of July, 1909, the assuming jurisdiction to modify the order of receiver and his attorney, and Pullman, Kras- July 16th; that, even had the court possessed noff, and their attorneys being present, the jurisdiction to amend its former order, it attorney for the appellant, having prepared was error for it to do so upon the facts in an order of confirmation, handed it to the this case. It is insisted that the order of attorney for the respondent herein for in- confirmation was a final order, and, as such, spection. It was hastily inspected, according could have been reviewed by appeal, and to the testimony of respondent's attorney, that, that being so, the court had no jurisdicand handed up to the court, who adopted it tion to modify or vacate the order on petiin his order of confirmation. In that order tion. The order of confirmation was a final of confirmation were the following words: order in a sense, but it could not have been "Less deductions and additions to be deter-reviewed by appeal by the respondent withmined as follows: Less the total value ac-out calling the mistake, which he claimed cording to the prices at which they were ap praised, of such goods originally listed in the inventory and appraisement filed June 28, 1909, which are now contained in the store of defendant corporation, plus the value according to the original value of such

had been made in making the order of confirmation, to the attention of the court. Ile did call it to the attention of the court by petition, and his petition was granted. So that still he was powerless to prosecute any appeal in the case, for the reason that the

judgment of the court was in his favor. If the court to modify the judgment even if it the petition had been denied, then it may be had possessed jurisdiction to review its forthat the judgment of the court in refusing mer order, we can arrive at but one concluto grant a modification might have been ap- sion. Under the construction placed upon pealed from. But under the circumstances the language of the first order by the attorof the case, all the appeal that was available neys for appellant, an estate could be actualwas the appeal on the part of the appellant which he has prosecuted. Many cases are cited by the appellant to sustain his contention that the superior court has no jurisdiction to vacate or modify a final judgment or order, except for the reasons and within the time prescribed by the statute. But these cases, as we view the law, are not in point in this case.

On the other proposition, that under the circumstances of this case, it was error for For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes