said subcontractors

*

* *

as follows: "Whereas, the said Callie L. of cases, indeed, as is said in Floding v. DenSteele, William Roberge and Al Roberge have holm, 40 Wash. 463, 82 Pac. 738, that a debt entered into a written agreement as contracted by the husband in the prosecution subcontractors with Raftery & Co., wherein of the community business renders the comare to do the munity property liable for the debt is no lathing * * * according to the plans and longer an open question in this state. This specifications annexed. Now, therefore, it is principle has been applied to simple contract agreed that this instrument shall debts (Oregon Imp. Co. v. Sagmeister, 4 be security * * that the Wash. 710, 30 Pac. 1058, 19 L. R. A. 233; said William Roberge and Callie L. Steele Horton v. Donohoe Kelly Banking Co., 15 will forthwith proceed to the due comple- Wash. 399, 46 Pac. 409, 47 Pac. 435; McKee tion of said contract. It is also v. Whitworth, 15 Wash. 536, 46 Pac. 1045; agreed that this document shall be taken as Philips & Co. v. Langlow, 55 Wash. 385, 104 security mentioned in said agreement of the Pac. 610); to an accommodation indorser 21st day of March, 1911, * for all (Shuey v. Holmes, 22 Wash. 193, 60 Pac. moneys that said Raftery & Co. shall be 402); to one liable for a superadded liability called upon to pay over and above the sum as a subscriber to the stock of a corporation of $11,700 * to discharge any lien, (Shuey v. Adair, 24 Wash. 378, 64 Pac. 536); charges, incumbrances or to pay any debts to obligations incurred as a surety for a corof the said Roberge & Steele in respect poration in which the husband is a stockthereof." Roberge & Steele did not per- holder and the stock belongs to the communiform their contract, and Raftery & Co. had ty (Allen v. Chambers, 18 Wash. 341, 51 Pac. to pay $1,081.31 in addition to the contract 478; Allen v. Chambers, 22 Wash. 304, 60 price to discharge incumbrances and pay Pac. 128); in an action for fraud and deceit debts contracted by Roberge & Steele. The (McGregor v. Johnson, 58 Wash. 78, 107 plaintiff, who is trustee for Raftery & Co., Pac. 1049, 27 L. R. A. [N. S.] 1022); and, began this action to foreclose the mortgage. finally, it was held that the community is From a decree in favor of plaintiff, the de- liable for a tort committed by the husband fendants have appealed. when engaged in a business conducted for the benefit of the community (Milne v. Kane, 64 Wash. 254, 116 Pac. 659, 36 L. R. A. (N. S.) 88, Ann. Cas. 1913A, 318; Woste v. Rugge, 68 Wash. 90, 122 Pac. 988).

* *

It is first contended that Mrs. Steele was in no way bound to sign the mortgage which covered the home of the defendants Steele, and which would otherwise have been exempt; that she signed as a surety, and, being now released because of certain alleged omissions on the part of the principal contractors, the mortgage has become void for the want of an obligation to sustain it. If Mrs. Steele signed the mortgage as a principal, and not as a surety, it will be unnecessary to comment upon the evidence and the cases relied on to show a release, although in passing we will say that we have examined both the facts and the law, and are of the opinion that the defense of release cannot in any event be sustained.

[2] Since the decision of this court in Oregon Imp. Co. v. Sagmeister, 4 Wash. 710, 30 Pac. 1058, 19 L. R. A. 233, the holding that any business that the husband is engaged in is prima facie the business of the community and prosecuted or carried on for its benefit has not been questioned or denied, and we do not find anything in this record that would overcome this presumption. Nevertheless many cases are cited to sustain the contention that the test of a wife's liability is "whether she received in person or in benefit to her separate estate the consideration [1] Roberge & Steele were subcontractors, upon which the contract depends," and that and engaged to do certain work for a stip- "to the extent the consideration was not ulated price. They failed to meet the terms received by her in person or in benefit to her of their contract, and the firm is charge- separate estate she is a surety." It was unable with the amount that Raftery paid necessary to go beyond the decisions of this for them. The primary test in this, as it court to sustain this principle. It has been has been in all of the later decisions of said in many cases that the separate property this court, is to ascertain the character of of the wife is not liable for a community the debt. If the debt is a separate debt of debt, nor can a personal judgment be renderthe husband, the community would not be ed against her. Philips v. Langlow, 55 Wash. bound. If it is a debt incurred in the prose-385, 104 Pac. 610; Anderson v. Burgoyne, cution of a business or an enterprise out of 60 Wash. 511, 111 Pac. 777; White v. Ratliff, which the community would have reaped a benefit, it is a community debt, and the husband and wife are principals in so far as their community property is concerned. Measured by this standard we have no doubt that the obligation assumed by Mrs. Steele was direct and not collateral; that she executed the contract as a principal, and not as

61 Wash. 383, 112 Pac. 502. That question is not before us. We have here a community debt and a mortgage upon community property.

[3] We assume that it will need no citation of authority to sustain the proposition that the wife may voluntarily pledge community property or her separate property to

a judgment may be rendered against her foreclosing her right, title, and interest in the property so pledged.

[4] Finally, it is contended that there is no competent evidence to prove the debt. The defendants Steele agree in the mortgage

and egress from his property will not be construed as prohibiting all use of the track by defendant, where the track is owned by a public service corporation, which was not made a party to the action, and, the company's right to use the track not being impaired, those whom it served would have the right to use the track without interference on the part of plaintiff.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 434; Dec. Dig. § 211.*]

Department 1. Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by A. B. Taylor against the HowellHill Mill Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition that plaintiff remit a part of the damages recovered, otherwise new trial granted. H. G. & Dix H. Rowland, of Tacoma, for appellant. James Garvey, Guy E. Kelly, and Thomas MacMahon, all of Tacoma, for respondent.

that the affidavit of the auditor "shall be taken as final between the parties hereto." The same contention was made in the case of Lazelle v. Empire State Surety Co., 58 Wash. 589, 109 Pac. 195. It was there said: "As to the next assignment, the contract provided that, in case the owner should be compelled to take charge of the building and finish the contract, the cost should be audited and certified by the architects, and such audit and certificate should be conclusive upon the parties. Such stipulations are usual in contracts of this character, and the courts recognize the same binding force of the agreement made by the parties in this respect as in any other. Having stipulated that such certificate should be conclusive, it cannot now be said it was inadmissible or incompetent to prove the damage to the owner. Eldridge v. Fuhr, 59 Mo. App. 44; Nor- street platted in the year 1888. The street cross v. Wyman, 187 Mass. 25, 72 N. E. 347; Charlton v. Scoville, 144 N. Y. 691, 39 N. E. 394." This is met by the suggestion that, the debt being that of the firm of Roberge & Steele, the evidence must be competent as against both parties. Cases are cited holding that in an action against a partnership all of the partners must be made parties, and that a partner cannot submit partnership

matters to arbitration without special au

thority so to do. It will be unnecessary to

comment upon these cases, for the judgment in this case does not rest upon the affidavit of the auditor alone. He was called and sworn as a witness and testified as to the

amount due, and further that Roberge was present when the account was audited.

[5] The defendants Steele are liable for the whole debt, and a foreclosure of the security will not be defeated for the lack of parties after the debt has been proven, the mortgage admitted, and no demand that the

CHADWICK, J. The parties to this action are the owners of property abutting upon a

was never opened for public use, and has by reason of nonuser reverted to the adjoinand operates a shingle mill on its abutting ing property owners. The appellant owns property and did for a long time use the property embraced within the street lines for dumping shingle bolts; a spur track from laid along the street to the shingle mill and the Tacoma & Eastern Railway having been dry kiln of the appellant. Appellant so used

the property as to cut off convenient ingress and egress from respondent's property. This action is grounded in trespass to recover damages and for an injuction. The case was tried before the court without a jury. A judgment was rendered for the sum of $125. The right to recover is admitted, and an amount believed by respondent to be sufficient to cover all the damages sustained was tendered before the trial.

We have read the testimony with some care, and we are convinced that the judgment partner be brought in as an additional party of the court can be sustained only upon the

has been made.

Affirmed.

theory that appellant's trespass was such as to operate as a total deprivation of the use

CROW, C. J., and MOUNT, GOSE, and of respondent's property. In fact the case

seems to have been tried upon that theory. About all the testimony that was offered goes to the full rental value of respondent's property rather than to any loss or damage that he might have sustained because of the inconvenience suffered. No purpose would be served by detailing the testimony of the several witnesses. We are convinced that the amount of damages allowed is not sustained by the evidence, and that no greater sum than $60 should be allowed. If, therefore, respondent is willing to accept this amount as full compensation, and within 30 days after the remittitur goes down files a waiver of

the difference, the judgment will be affirmed, | sioner of public works of that city, and the otherwise the court will retry the case.

Appellant contends that the decree of the court is broader than the complaint and the issues, and that it operates to deprive it of the privilege of going upon the spur track; that in the conduct of its business it is necessary that it shunt cars over and across a part of the property owned by the respondent. It is true that the decree, when considered alone, might be so construed; but in the light of the whole case we are not inclined to give it that meaning. The track is on the ground. It is the property of a public service corporation; its right to maintain it is not before the court; and, if it is operated by the company for public uses, it and those whom it serves would have a right to use the track without any interference on the part of respondent.

The case will be remanded, with directions to dispose of it as herein before indicated.

appellant Rose was appointed to perform the same duties, although under the title of "substreet foreman." The relator brought this proceeding in quo warranto seeking to be restored to the position, and to recover the salary during the time of his ouster. succeeded in the court below, and this appeal is prosecuted from the judgment entered in his favor.

He

The case is here upon the findings of fact made by the trial court.

The findings are as follows:

"(1) That the said Thomas Cole was in the month of July, 1909, appointed to the position of crosswalk foreman of the city of Spokane, Wash., and continued to hold and occupy the said position of crosswalk foreman up to and including the 31st day of March, 1911, at the monthly salary of $80 per month; that the said position so occupied by Thomas Cole is and was a subordinate

CROW, C. J., and MOUNT, GOSE, and position in the street department, and not

PARKER, JJ., concur.

(74 Wash. 35)

the head of a department.

"(2) That the city of Spokane is à municipal corporation of the first class, organized under the laws of the state of Washington,

STATE ex rel. COLE v. COATES, Com'r of and having a common charter, and that on

Public Works, et al.

(Supreme Court of Washington. June 10, 1913.) MUNICIPAL CORPORATIONS (8 218*)-OFFICERS AND EMPLOYÉS CIVIL SERVICE-REMOVAL DAY LABORER."

Under the charter of the city of Spokane adopted at an election December 28, 1910, providing that all employés at that time retain their positions under its civil service provisions, and for removal only on suspension by the heads of departments on charges preferred and an inquiry before the civil service commission, and that day laborers only were subject to removal without cause shown, the subsequent change of relator's position to crosswalk foreman at a compensation of $80 per month to that of substreet foreman at $3.25 per day did not make the position that of a "day laborer," whose engagement to labor is but a day long, and hence he was not subject to removal without cause shown.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 589-598; Dec. Dig. & 218.*

For other definitions, see Words and Phrases, vol. 2, p. 1838.]

Department 2. Appeal from Superior Court, Spokane County; W. P. Bell, Judge.

Quo warranto by the State of Washington, on the relation of Thomas Cole, against D. C. Coates, Commissioner of Public Works of the City of Spokane, James M. Rose, and the City of Spokane, a municipal corporation. Judgment for relator, and defendants appeal. Affirmed.

the 28th day of December, 1910, by an election of the voters of the said city, did adopt a new charter, and among other offices of said city of Spokane is the position of commissioner of public works, and that D. C. Coates is now and has been since the 14th day of March, 1911, commissioner of public works of the city of Spokane, and under the provisions of said charter has supervision and control over the affairs of street and public works, including all the positions in said department.

"(3) That under the provision of article six (6) of said charter of the city of Spokane provision is made for a civil service commission; that all employés of the city of Spokane in office at the time of the adoption of said charter shall retain their positions unless removed for cause; that under the civil service provisions of said charter of the city of Spokane the civil service commission, consisting of three members, constitutes the board, and that removals of any employé under the civil service provisions of said charter shall only be made by the said civil service commission after an employé has been suspended by the head of the department under which he is employed, charges preferred, and an inquiry had before the said civil service commission; that said position of crosswalk foreman or subforeman was on April 1, 1911, and ever since has been and

Harris Baldwin, of Spokane, for appellants. is now within the civil service provisions and rules and regulations of said civil serv

FULLERTON, J. The relator was remov-ice commission. ed without cause being shown for such re- "(4) That on the 1st day of April, 1911, the moval from the position of "crosswalk fore- said D. C. Coates, commissioner of public man" in the city of Spokane by the commis-works, did attempt to dismiss and discharge

incorporated as a unit in another high school | board of the union schools to which they be district.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 55; Dec. Dig. §

33.*]

Department 2. Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Proceedings in the nature of quo warranto by the State, on the relation of Ralph C. Bell, as prosecuting attorney for the county of Snohomish, state of Washington, against James Thaanum and others, as directors. From a judgment dismissing the proceeding on demurrer to the information, relator appeals. Reversed and remanded,

with directions to overrule demurrer and for further proceedings.

long, the means by which the high school is to be supported, what territory comprises the high school district, who are entitled to the

franchise in the dissolved district, and how such franchise is to be exercised. Doubtless other provisions may be affected also, but these enumerated are enough to show that the Legislature did not contemplate the consolidation of districts situated as were the districts attempting to consolidate in this instance.

The judgment is reversed, and the cause remanded, with instructions to overrule the demurrer and proceed to a hearing of the information on its merits.

CROW, C. J., and MAIN, ELLIS, and

R. J. Faussett and Joseph H. Smith, both MORRIS, JJ., concur. of Everett, for appellant.

FULLERTON, J. This is a proceeding in the nature of quo warranto brought by the prosecuting attorney of Snohomish county to inquire into the validity of the organization of consolidated school district No. 105 therein. A demurrer was interposed to the information, which the trial court sustained. Thereafter an order of dismissal was entered, and this appeal is prosecuted therefrom.

(73 Wash. 643)

CULBERT et al. v. LINDVALL et ux. (Supreme Court of Washington. May 29, 1913.)

1. MECHANICS' LIENS (8 118*)-NOTICE BY MATERIALMEN.

Under Rem. & Bal. Code, § 1133, providing that every person furnishing material shall deliver to the owner a duplicate statement of all the material delivered, a subcontractor employed to install a furnace at a fixed price is not entitled to a lien for the value of the material but, if the demand for labor can be segregated, unless the duplicate statement was delivered, a lien may be had for the amount thereof, regardless of statement.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 161; Dec. Dig. § 118.*1 2. MECHANICS' LIENS (§ 118*)-DUPLICATE

STATEMENTS-NECESSITY.

The petition sets forth that the consolidated district was attempted to be formed out of the territory of school district No. 20 and school district No. 30, in Snohomish county, and is illegal and void because these districts at that time formed units in separate union high school districts; the forUnder Laws 1909, c. 45 (Rem. & Bal. mer forming a unit in union high school dis- Code, § 1133), requiring every person furnishtrict No. 103, and the latter forming a unit ing material to be used in the construction of in union high school district No. 100. Wheth- a building to furnish the owner with a duplicate statement at the time the material is deliver school districts thus situated can be law-ered, a materialman who failed to furnish the fully consolidated is the sole question presented by the record.

The formation, consolidation, and regulation of schools and school districts are matters governed wholly by statute. In this state these statutes form a somewhat extensive code. The procedure relating to the consolidation of school districts will be found in sections 4440 to 4459 in Rem. & Bal. Codes, and relative to the formation of high school districts in sections 4460 to 4469. These are too long to be even epitomized here, but their perusal will show that it would lead to uncertainty and endless confusion if a school district incorporated as a unit in one high school district was per:

mitted to consolidate with a school district

owner with such statement is not entitled to such lien, even though the owner, as the contractor's employé, had knowledge of the amount

of material furnished.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 161; Dec. Dig. § 118.*] 3. MECHANICS' LIENS (§ 310*)-PROCEEDINGS -ATTORNEY'S FEES.

The attorney's fees allowable in mechanics' amount of the lien, and therefore, where a melien cases should correspond in part to the chanic's lien is, on appeal, reduced more than three-fourths, a corresponding reduction should be made in the fee.

Liens, Cent. Dig. §§ 651-654; Dec. Dig. § [Ed. Note. For other cases, see Mechanics' 310.*1

Court, Spokane County; W. W. Black, Judge. Department 2. Appeal from Superior incorporated as a unit in another and dis-L. A. Lindvall and wife. From a judgment Action by T. J. Culbert and others against tinct union high school district. True, there for plaintiffs, defendants appeal. Affirmed is no direct prohibition against such consolidation, but in the consolidation of dis- in part, and in part reversed and remanded. tricts the districts consolidated lose their in- John M. Gleeson and A. G. Gray, both of dividuality and become a new and distinct Spokane, for appellants. Peacock & Ludden entity, thus rendering uncertain the provi- and G. G. Ripley, all of Spokane, for resions of the act relating to the governingspondents.