to the city of Toronto, and there remained to the contrary; and while the extreme lenifor about six months, after which he returned ency extended to the respondent by the apto the city of Chicago, where he has ever pellants during all these years rebuts any since resided. On the 28th day of August, possible inference of a fraudulent intent on 1903, the defendants commenced an action in their part, yet we think the court was warthe superior court of Spokane county to fore-ranted in finding from the testimony that the close the above mortgage, and obtained serv- appellants knew, or by the exercise of reaice on the plaintiff herein by publication. A sonable diligence should have known, the copy of the summons and complaint was residence and post office address of the remailed to the plaintiff at Toronto, Canada, as spondent at the time of the commencement his last known post office address. A decree of the foreclosure suit, and in view of the of foreclosure was thereafter entered, and conflict in the testimony, and the superior the property was sold on execution and bid in opportunities afforded trial judges for the asby the defendants. certainment of truth, we must accept its conclusion as final here. The only remaining question in the case is the statute of limitations. The appellants contend that this was an action for relief on the ground of fraud, that the limitation for such action is three years, and that the present action was not commenced within the time limited by law. Conceding that the cause of action is not deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud, and the testimony shows that the respondent had no notice of the judgment or sale until a few months prior to the commencement of the present action. Nor do we think that notice of the entry of the judgment should be imputed to him, especially in view of the fact that he met the appellant I. N. Peyton in the city of Chicago after the entry of the judgment, and the fact of the foreclosure of the The present action was commenced on the 3d day of February, 1908, to vacate and set aside the decree of foreclosure and to redeem the property from the mortgage and foreclosure sale. This relief was sought upon the ground that the plaintiff herein was a resident of the city of Chicago at the time of the commencement of the foreclosure action, and that his residence and post office ad-three-year limitation is applicable here, the dress were well known to the defendants herein. On that issue the court below made the following findings, among others, and entered a decree in accordance with the prayer of the complaint: "The plaintiff never was a resident of Toronto, Canada, with the exception of about six months in 1892; but for more than ten years prior to the commence ment of said action he was, and ever since has been, and still is, a resident of the city of Chicago, state of Illinois. During the time between the execution of said mortgage by the plaintiff to the defendant and the at-mortgage was not disclosed to him, although tempted foreclosure thereof as herein before the subject-matter of their conversation was set forth, and ever since said foreclosure, the mortgage indebtedness and called for the defendant I. N. Peyton well knew the res- such a disclosure on his part. This meeting idence and post office address of the plaintiff was denied by Peyton, but for reasons alto be in the city of Chicago and state of Il-ready stated we must accept the finding of linois. The plaintiff and defendant I. N. the court below on this point also. It must Peyton have been intimately acquainted with be conceded that the respondent has been exeach other for many years, and at all times ceedingly dilatory and neglectful; but his since the execution of said mortgage they equity in the mortgaged property could only have had occasional correspondence by mail be cut off by a legal foreclosure of the mortwith each other, and the defendant Peyton gage, or by the statute of limitations, and has on several occasions during said time met for reasons already stated he is barred by the plaintiff in the city of Chicago. The neither. plaintiff had no knowledge whatever of the commencement of said foreclosure proceedings, or of their pendency, until the month of September, 1907, a short time prior to the commencement of this suit." From this decree, the defendants have appealed. The testimony on the main issue in the case is in direct conflict. The respondent testified that he met the appellant I. N. Peyton in Chicago at different times after his return from Toronto and before the mortgage foreclosure, that he received letters from Peyton addressed to the city of Chicago between these dates, and that he wrote a number of letters to Peyton from the city of Chicago, to which he received no reply. The appellant Peyton, on the other hand, testified directly The judgment is therefore aflirmed. RUDKIN, C. J., and FULLERTON, PARKER, DUNBAR, MORRIS, and GOSE, JJ., concur. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes En banc. On rehearing. Judgment vacated, and a judgment ordered to be entered dismissing the suit without prejudice. For former opinion, see 108 Pac. 610. PARKER, J. Appellants have petitioned for a rehearing of this cause, which we have granted for the purpose of determining whether or not the judgment of the learned trial court should be modified and limited in its effect, so as to leave open for adjudication upon the merits the question of appellants' right to specific performance of the contract sued upon, in the event appellants desire to bring a new action for that purpose. By our former opinion (108 Pac. 610) it was held, in effect, that appellants should have been denied a decree of specific performance, because, at all times prior to the rendering of the judgment denying such relief, it was not possible for the court to render or enforce an efficient decree of specific performance, whatever the rights of the parties might be, by reason of the want of title in respondent Suydam such as would enable him to convey in obedience to any such decree. We were not called upon to express any opinion upon the merits of appellants' rights as against respondents; that question not being involved when it was once determined that in no event could specific performance be enforced as the title stood at the time of and prior to rendering the judgment appealed from. If the judgment of the learned trial court had gone no farther than to merely deny specific performance and dismiss the case, without assuming to finally adjudicate the rights of the parties under the contract sued upon, we would be content to let our former opinion affirming the judgment rest without modification. render and enforce an efficient decree to that The trial court is directed to vacate its judgment, and in lieu thereof enter a judg- Motion to dismiss appeal because of bond not complying with the statute, and because the record shows the court has no jurisdiction in the briefs, on which the case was submitted, of it, will not be considered; there having been no intimation or showing of facts or statement of record cited on which the motion is based. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. 757.*] 2. LANDLORd and Tenant (§ 92*)—OptioNS— CONSIDERATION. There is sufficient consideration, though none is recited, for the option given in a lease for the lessee to buy the premises within the term of the lease. But we are reminded that, inadvertently, the full force and effect of the judgment was overlooked in the former review of the case. The judgment, by its terms, not only denies specific performance, but also in effect decrees that appellants are not entitled to any relief upon the contract, that it be cancelled of record, and that the property thereby agreed to be conveyed be "discharged and cleared from any and all cloud or incumbrance which may exist thereon by virtue of [Ed. Note.-For other cases, see Landlord and the executing of said instrument by said de- Tenant, Cent. Dig. § 290; Dec. Dig. § 92.*] fendant Suydam." By reference to the for- 3. SPECIFIC PERFORMANCE (§ 57*)-OPTIONS. mer opinion it will be seen that respondent A lessee, having entered into possession unSuydam's title to the land which he agreed der his lease, giving him an option to buy during the term thereof, and having remained in to sell appellants may have become perfect-possession thereunder and made improvements, ed after the rendering of the judgment of will be granted specific performance under his the trial court, or may even in the future be- option. come so perfected, since the contract by [Ed. Note.-For other cases, see Specific Per which he was to acquire the land apparently formance, Cent. Dig. § 178; Dec. Dig. § 57.*] may be kept alive by him until 1913. And it 4. SPECIFIC PERFORMANCE (§ 57*)-OPTIONS. is also possible that appellants may have a lease, giving him an option to buy during the A lessee enters into possession under his right of specific performance when Suydam's term thereof, as regards his right to specific pertitle becomes such as to enable a court to formance, none the less because when such con contract. tract is made he is in possession under an old | December 24, 1907, Edward Harkness died in California, leaving a will by which he de[Ed. Note. For other cases, see Specific Per-vised to Nellie Harkness a life estate in his formance, Cent. Dig. § 178; Dec. Dig. § 57.*] 5. SPECIFIC PERFORMANCE (§ 57*)-OPTIONSDETERMINING PRICE. Though an option to buy land provides for the price being fixed by two arbitrators, to be appointed one each by the parties, and in case they cannot agree, a third to be appointed by such arbitrators, the court may on application fix the price; the two arbitrators appointed being unable to agree thereon, or on a third arbitrator. [Ed. Note. For other cases, see Specific Per formance, Cent. Dig. § 178; Dec. Dig. § 57.*] Department 2. Appeal from Superior Court, Thurston County; John R. Mitchell, Judge. Action by H. G. Richardson against Nellie Harkness and others. From the judgment, both parties appeal. Affirmed. S. P. Richardson and Troy & Sturdevant, for plaintiff. Thomas M. Vance and Harry L. Parr, for administrator. J. W. Robinson and R. H. Fry, for defendants. half of block 52, and the title to two sons, Warren E. and Harold J. Harkness, minors, who appear here by a guardian ad litem. This will was probated at the home of the deceased, and the widow, Nellie Harkness, was appointed administratrix January 21, 1908. As appears from the records, all the debts have been paid and the property distributed, and Nellie Harkness discharged as administratrix by the California court. On October 8, 1908, Walter Crosby was appointed administrator of this estate with the will annexed, by the superior court of Thurston county. On October 17, 1908, Richardson filed his petition, demanding a specific performance of the option to purchase contained in the lease as above quoted. On November 14, 1908, the petition came on for hearing before Judge Yakey, who took the proofs as to the execution of the lease and as to the notice given to the parties interested, found that due noDUNBAR, J. On August 20, 1907, Edward tice had been given and served upon the adHarkness and wife gave H. G. Richardson | ministrator, heard evidence generally on the a lease of block 52 of Olympia, the same be- circumstances surrounding the case, found ing community property, the lease to run that Richardson had made a tender under from January 1, 1908, to January 1, 1910. the provisions of the contract to Walter CrosRichardson was to pay $25 per month rent- by, administrator of the estate of Harkness, al. Among other things, the lease has the deceased, of the sum of $2,000, being the price following provision: "It is further agreed determined upon under the contract as a and understood between the parties hereto reasonable and fair price for the said real that the said party of the second part is the estate, and found that he had kept his tender owner of the buildings on said premises, and good. It was therefore ordered and decreed at the end of this lease the said party of the that the time within which the arbitrators second part shall have the right to remove should act should be deemed as running from said buildings if he shall so elect. It is fur- the date of said order, viz., the 14th day of ther agreed by and between the parties here- November, 1908, and they were ordered to to that the party of the second part, his proceed under the provisions of said contract heirs, or assigns, has the right to purchase and carry out said provisions. The administhe property herein leased at any time dur- trator was directed to proceed and carry out ing the period of this lease, viz., from Jan- the provisions of the contract by conveying uary 1, 1908, to January 1, 1910, the price to said real estate for the consideration to be be ascertained therefor as follows, to wit: determined by the arbitrators, and in accordThe party of the second part, his heirs, or ance with said contract. The two arbitraassigns, shall offer a price deemed reason- tors appointed were unable to agree upon able by him, and if said price shall not be the valuation of the property. They were alaccepted by the parties of the first part or so unable to agree upon a third arbitrator. their executors or administrators, then the After the arbitrators had failed to act, Richparties of the first and second part herein ardson filed his petition, praying that the shall each appoint an arbitrator, both to be court compel the administrator to execute a residents of Olympia, Washington, who shall deed for said block 52 in consideration of $2,appraise said lands exclusive of the im- 000. A guardian ad litem was appointed for provements therein, and the sum agreed up- the minor children, demurrers, raising the on shall be the purchase price of said above- sufficiency of the facts stated in the petition, described real estate. If said arbitrators were filed and overruled, separate answers fail to agree they shall appoint a third arbi- were filed to Richardson's petition for spetrator. Said three arbitrators shall then cific performance, setting up various defensappraise said lands, excluding improvements, es, and upon trial of the case, the judge fixed and determine the then value thereof, and the price of the block at $5,000. Both litithe sum any two of said arbitrators shall gants appealed, Harkness et al. generally, agree upon shall be the purchase price to and Richardson from the order fixing the be paid by said party of the second part, his price; and the case is now here for determiheirs, or assigns to said parties of the first nation. part, their executors, or administrators." On The plaintiff moves to dismiss the appeal *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes of Harkness et al. for the reasons alleged, (1) because said appeal was not taken or perfected in the manner required by statute, (2) because no bond was given as required by statute or at all, because the bond given does not comply with the requirements of the statute with reference to bonds on appeal, and that said bond is totally deficient, and (3) because it appears upon the face of the record that this court has no jurisdiction of said appeal. As there is no intimation in the brief-the case having been submitted upon briefsor showing of facts or statement of record cited on which this motion is based, we are not inclined to enter into its discussion. tract provided for the determination of the value of the land by arbitrators, he had no right to file his application asking the court to determine by its decree the value of the land, but that it should be determined in the way, and only in the way, provided by the contract. But it is shown conclusively that the arbitrators provided for in the contract were not able either to arbitrate as to the value of the land, or to agree upon the third arbitrator. So that Richardson was helpless in that respect, and, of course, under such circumstances, the courts were open to him for the purpose of determining his rights under the contract. We think there was no error made by the court in overruling the demurrers, or any of the objections interposed. The question was then determined upon its merits as to the value of the land, the court finding that the value of block 52 was $5,000, and as we have before said, both parties have appealed from this finding. Many witnesses were introduced upon each side, who testified upon the question of the valuation of this land, and their testimony varied widely. We shall not attempt to enter into an analysis of the testimony of the different witnesses. But from an examination of such testimony, and also from the fact that the premises were viewed by the court who tried the case and rendered the judgment, we are not inclined to disturb the finding as to value. The judgment in all things will be affirmed, each party to pay the costs of his appeal. RUDKIN, C. J., and PARKER, CROW, and MOUNT, JJ., concur. (59 Wash. 481) The principal contention of the defendants is that the contract set forth in the petition was not such a contract as would warrant a specific performance. Outside of the fact that all questions concerning the construction of the statute in this regard must have been decided by Judge Yakey in his order made on the 14th day of November, 1908, and unappealed from, it is evident that the petition in this case sets forth facts sufficient to warrant the enforcement of specific performance, if such facts are true. Section 6381. Bal. Code, provides that: "If any person who is bound by contract, in writing, to convey any real property, shall die before making the conveyance, the superior court of the county in which such real estate or any portion thereof is situate may make a decree authorizing and directing his executor or administrator to convey such real property to the person entitled thereto." The succeeding section provides the manner in which the rights of the parties shall be determined, and in which they shall be enforced. This contract especially provides for the conveyance of this land at the option of Richardson, and if there is any merit in the contention that the contract is not enforceable in specific performance, it must be upon the theory alleged by defendants that there was no consideration for that portion of the contract providing for the conveyance of the real estate. But there was or might have been a consideration. It might reasonably have been that the consideration was expressed in the contract of lease, and that the lessee would not Petition by J. L. Prickett against Orlando have entered into the contract or have paid the amount of money which he agreed to. Sloggy and Edward A. Pike for dissolupay, and did pay, under the lease, had he not tion of partnership and an accounting. From been granted the option provided for in the a judgment dismissing the case, the petitioner appeals. Reversed and remanded, with Richardson entered into possesinstructons. sion under this contract, because it does not militate against this theory that he happen- R. L. Edmiston, for appellant. Wakefield ed to be in possession under an old contract & Witherspoon, for respondents. at the time this contract was made. He remained in possession under the contract, expended money in improvements under the contract, and equity would enforce his right to the specific performance provided for in the contract. contract. PRICKETT v. SLOGGY et al. (Supreme Court of Washington. Aug. 5, 1910.) PARTNERSHIP (§ 53*)—EVIDENCE OF RELATION. partner as against the contention that he merely Evidence held to show that plaintiff was a loaned the money to establish the business. [Ed. Note. For other cases, see Partnership, Dec. Dig. § 53.*] Department 2. Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge. PER CURIAM. According to the statements of the complaint in this action, about June 1, 1903, J. L. Prickett, the plaintiff herein, and Edward L. Pike, one of the defendants, made and entered into an oral agreement of partnership, for the purpose of ac It is also urged that, inasmuch as the con was paid by checks of $150 each issued to Prickett, Sloggy, and Pike. In February an other dividend of $750 was declared, each of the parties above mentioned receiving a check for $250, which checks were recorded as dividends. In April, 1906, a further dividend of $900 was paid from the net profits, a check for $300 being issued to each of the three men interested. In May a further dividend of $600 was issued in like manner. In October a further dividend of $600 was paid from the net profits by checks, each man, viz., Prickett, Sloggy, and Pike, receiv quiring, building up, and conducting as equal | net receipts of the business; and the same partners a saloon business in the city of Spokane, under the terms of which partnership agreement Prickett was to furnish said partnership the necessary money to buy appropriate fixtures, stock, etc., and they were to share alike the profits of the business. Afterwards, upon the suggestion of Pike, one Sloggy was admitted to the partnership, and it was agreed that Sloggy and Pike were to have $125 a month for their services. Prickett did not wish to be known in the transaction, but was a silent partner. This statement is vigorously denied by the defendants, they claiming that they simply boring one-third of the amount by checks markrowed the money of Prickett to enter into this saloon business, that he had no interest in it whatever, and was attempting to impose himself upon them wrongfully as a partner. The complaint is long, but what we have stated is sufficient to make clear the character of the case. The complaint prayed for a dissolution and an accounting. The court below confined the trial to the single issue of the partnership, and, at the conclusion of the trial of this issue, rendered judgment for defendants, holding the evidence insufficient to prove a partnership. A bill of sale figured in the transaction, which the court ordered turned over to Sloggy and Pike. The plaintiff's case was dismissed with costs. ed "Dividends." In November, 1906, a fur- plaintiff. But the action of the It is true that the contract in this case was very indefinite and very unbusinesslike, and had there been no subsequent transactions tending to establish a partnership, it would be doubtful if the testimony was sufficient to establish it. parties after the initial money was paid, in paying these considerable amounts of money in equal shares to each of the three parties interested, for so long a time, is inconsistent with the theory that the money was borrowed, and that interest alone was to be paid for it. The very fact that $2,100 was paid for the use of $2,229 for a period of two This court always regretfully reverses the judgment of the trial court on questions of fact, because it stands confessed that the trial court, hearing the witnesses and noticing their demeanor on the stand, and being in the atmosphere of the trial, is better calculated to judge of the facts than the appellate court. But notwithstanding this, after an examination of this record, we are constrained to hold that the court erred in its findings of fact. Much of the testimony, and the more convincing part of it, is composed of matters of record and of bookkeeping, which the appellate court can as well judge of as could the trial court. It would serve no good purpose to enter into a lengthy analysis of the oral testimony, for it is con-years, is an indication that it never was inflicting to the highest degree, the testimony of plaintiff being to the effect that there was a tacit understanding that he was to be a silent partner in the concern, and the testimony of the defendants being exactly the opposite. It is conceded by all the parties that, in June, 1903, when this business was initiated, the plaintiff advanced, for the purpose of buying the business, $2,229.25. It is further conceded that, by December, 1907, this money had been paid back to Prickett. It is further conceded that there was never any understanding in relation to the interest that should be paid to the plaintiff for the use of this money, and that during the next two years he had received from the profits of the saloon something like $2,100. The first dividend after the payment of the initial money was $450, which was from the tended that this money was paid for interest. In fact, it was not interest on $2,229 for two years, because the payments of this $2,229 commenced shortly after the purchase of the business. Mr. Porter, a witness who examined the books of the concern when there was an attempt at an adjustment of the misunderstanding, testified as follows: "My recollection now is that there was several times that it was necessary for me to ask Mr. Pike, who was the one person at the time that did this work, as to the significance or meaning of certain checks that I was handling, and at one of such times I inquired what this was-this dividend-the meaning of this word 'dividend,' in conjunction with the checks and the bookkeeping." "Q. State what he told you the meaning of it was. A. That it was a division of the |