to one for getting out logs, for which indebtedness the latter might have filed a lien on the logs, so as to make his claim a preferred one, he is entitled to have his claim allowed as a preferred one. 2. Where one having a claim against an insolvent for getting out logs, after the appointment of a receiver of the insolvent, was advised by the judge of the court in which the insolvency proceedings were had that he need not file a lien on the logs, as his claim would be preferred, the informal conduct of the judge would not defeat the claimant's right to his preference. Appeal from superior court, Thurston county; Mason Irwin, Judge. Action by L. J. Davis against W. J. Foster as receiver of the Seatco Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed. Hudson & Holt, for appellant. J. W. Robinson, for respondent. PER CURIAM. The respondent in March, 1896, entered into a contract with the Seatco Manufacturing Company, a corporation engaged in the sawmill business, by the terms of which he undertook to cut into saw logs and put into the Skookumchuck river certain saw timber owned by the corporation, then standing upon lands owned by one Adolph Troller, at prices named in the contract, based upon the length of the logs. He immediately entered upon the prosecution of the work, employing a number of men as helpers, and by the 31st of August, 1896, had cut and put into the stream some 1,400,000 feet of logs. The corporation had in the meantime become insolvent, and at the date last named a suit was instituted by some of its creditors to have it adjudged insolvent, and a receiver appointed to take charge of its business and property. At the institution of the suit, a temporary receiver was appointed, which appointment was made permanent on the 15th of September following, after due notice given, and a hearing had thereon. In the order appointing the permanent receiver, the court directed the receiver to continue the business of the corporation; further ordering, "as a condition of the appointment of a receiver," that all claims for labor incurred by the corporation within 10 months prior to the beginning of the suit in which the receiver was appointed be paid in full, as soon as practicable, out of the receipts from the assets and earnings of the plant of the corporation. The receiver, immediately upon his appointment, took possession of the logs cut by the respondent, and in due time manufactured the same into lumber, which was afterwards disposed of as property in the receiver's hands belonging to the insolvent estate. At the time of the appointment of the receiver, the respondent had earned under the contract some $2,724.61, over and above the amounts that had been advanced to him from time to time by the corporation during the progress of the work. He owed at that time $1,100 to his employés, which amount he paid shortly after the appointment of the receiver. Prior to making this payment, he sought the advice of the then judge of the superior court as to his rights in the premises, inquiring whether or not it was necessary for him to file a lien upon the logs, in order to make his claim a preferred claim, or whether his claim became such by virtue of the order made by the court in the appointment of the permanent receiver. The court advised him that his claim came within the terms of the order, and was a preferred claim, which would be paid by the receiver as such, and that it was his duty to pay his employés the several sums due them, as a prerequisite to his right to claim the amounts so due them from the receiver. Acting thereon, the respondent paid the employés, as above stated, and suffered the time to elapse within which a logger's lien was required to be filed for record under the then existing statutes. In this proceeding the respondent sought to have his entire claim allowed as a preferred claim against the funds in the hands of the receiver. His application was resisted by certain of the general creditors, and, after a hearing, the court allowed the claim as a preferred claim for the amount paid the employés only,-$1,100. The receiver appeals. We think the claim was correctly allowed as a preferred claim. It is elementary that the rights of a receiver in the property of an insolvent corporation as to third parties are not in any respect superior to those of the corporation itself, and that he takes its property subject to all existing equities. The respondent had a right of lien, which he couldhave perfected, and thus made his claim a preferred claim. It was within the power of the court to recognize these rights at any stage of the proceedings, and to make such orders as would tend to lessen the costs of administering upon the property, and to best preserve the estate. While the court's action with regard to this claim may have been informal, it was not prejudicial to the estate, and the injustice of now disallowing it is so great that mere informalities cannot be allowed to defeat it. The order will stand affirmed. 1.2 Ballinger's Aun. Codes & St. § 6190, gives a surviving partner the right to administer the partnership estate, with power to settle the partnership business generally, and to pay or transfer the interest of deceased therein, after payment of the firm debts, to deceased's general administrator; such partnership administrator to be subject to the same limitations and liabilities and control of the court as a general administrator. Held, that partnership realty being equitably regarded as personal estate, so far as necessary for payment of debts or adjustment of partnership rights, the court has jurisdiction, when a sale is nec essary to a proper distribution of the partnership estate, to order a sale of such realty by the partnership administrator, without the showing necessary to authorize a sale of individual realty by a general administrator. Prohibition by the state of Washington, on relation of Eliza Dewhirst Bogey, against C. H. Neal, judge, and others. Writ denied. Shepard & Lytle, for relator. R. W. Starr, for respondents. MOUNT, J. Upon the application of relator, a temporary writ of prohibiton was issued, prohibiting respondents from confirming a sale of real estate sold under the order of the court commissioner in Douglas county. Upon the return day of the temporary writ, respondents appeared, and filed a return to the "show cause" order, and a brief in support thereof. The facts, as they appear from the petition and return thereto, are substantially as follows: On the 19th day of December, 1901, George Dewhirst, a resident of Douglas county, died intestate in said county, leaving an estate therein consisting of real and personal property, a portion of which belonged to him individually, and a portion belonged to a copartnership, consisting of deceased and one E. R. Tyler, known as Tyler & Dewhirst; that thereafter E. R. Tyler, the surviving partner, upon due application, was appointed administrator of the partnership estate, and one Adam Thompson was duly appointed administrator of the individual estate; that thereafter the administrator of the partnership estate filed a petition in the superior court of Douglas county, showing that the personal estate of the copartnership of Tyler & Dewhirst was of the value of $1,221.50, no part of which had been sold; that the petitioner was unable at that time to state the amount of the partnership debts, but that the same amounted to more than $350; that the partnership real estate consisted of two quarter sections of land, describing them, which were appraised, and were of the value of $2,600; that the said real property was not susceptible of division, and that in order to make a division of the interests of the respective members of the late firm, so that the affairs of the late partnership of Tyler & Dewhirst might be closed up, it was necessary that the whole of the real estate be sold. Thereafter, upon a hearing, at which the above facts were found, an order of sale of the real estate was regularly made, and the sale took place. It is to prevent a confirmation of this sale that this writ is sought, upon the ground that the court had no jurisdiction to order the sale. This question of jurisdiction is the only one presented in the case. Section 6190, 2 Ballinger's Ann. Codes & St., provides that if the surviving partner apply therefor within five days from the filing of an inventory by the general administrator, he is entitled to the administration of the partnership estate, "and his powers and duties extend to the settlement of the partnership business generally, and the payment or transfer of the interest of the deceased in the partnership property remaining after the payment or satisfaction of the debts and liabilities of the partnership, to the executor or general administrator. In the ex ercise of his powers and the performance of his duties, the administrator of the partnership is subject to the same limitations and liabilities, and control and jurisdiction of the court, as a general administrator." This statute does not undertake to change the rule as to the status of partnership real estate, but gives the surviving partner general power over the partnership property in the settlement of the partnership business. Such partner is subject to the same limitations and liabilities and control by the court as a general administrator. In equity real property belonging to the partnership is regarded as personal estate, so far as the payment of debts and the adjustment of partnership rights are concerned. Dupuy v. Leavenworth, 17 Cal. 263; Shanks v. Klein, 104 U. S. 18, 26 L. Ed. 635; Burchinell v. Koon, 8 Colo. App. 463, 46 Pac. 932. Under this statute, therefore, the administrator of the partnership estate may sell and transfer the partnership real estate, for the purpose of paying debts and adjusting partnership rights, by the same authority that he may sell personal property. It is not necessary that he make the showing required of a general adminis trator to sell individual real estate. A showing that a sale was necessary to pay debts or to adjust partnership rights is sufficient. In this case the court found, upon a hearing after notice, that the partnership real property was not susceptible of division between the surviving partner and the general administrator or the heirs, and that it was necessary to make a sale thereof, in order to make distribution of the partnership estate. Under these circumstances, the court had jurisdiction to order the sale. The writ will therefore be denied, with costs against relator. REAVIS, C. J., and ANDERS, FULLERTON, WHITE, DUNBAR, and HADLEY, JJ., concur. (28 Wash. 701) POST ▼. CITY OF SPOKANE, (Supreme Court of Washington. Aug. 7, 1902.) APPEAL-AFFIRMANCE-JUDGMENT-PETI TION FOR VACATION. 1. Where, after an affirmance of the trial court, the appellant petitions in the supreme court for leave to petition the trial court to vacate the judgment, on the ground, among other things, that the demand sued for had been paid before suit, and it appears on the showing that justice demands an investigation, the petition will be granted. Application by defendant for leave to pettion for vacation of judgment affirmed. AL lowed. For opinion on affirmance, see 69 Pac. 371. PER CURIAM. The judgment of the court below in this cause having been affirmed by this court, the appellant, by petition now filed here, asks leave to file its petition in the superior court to vacate the judgment, on the ground that the same was wrongfully obtained, in that the demand sued upon had long before been paid and satisfied, together with other grounds stated in the petition. The showing is such that we believe the ends of justice demand that an opportunity shall be given for an investigation of the matters set forth in the petition. The prayer of the petition is therefore granted, and leave is hereby given appellant to file its said petition in the superior court, and for that court to proceed and hear the same. (29 Wash. 355) WISHON v. GREAT WESTERN MIN. CO. (Supreme Court of Washington. Aug. 8, 1902.) CONTRACT FOR SERVICES-CONDITION OF PAYMENT. 1. One who examines a mine, and makes a report thereon for the owner, under a contract that he shall receive a certain amount therefor if a sale is effected "by and through" the report, cannot recover on evidence merely that one to whom it was furnished, with others of a similar nature, became the purchaser. Appeal from superior court, Spokane county; William E. Richardson, Judge. Action by Walter W. Wishon against the Great Western Mining Company. Judgment for plaintiff. Defendant appeals. Reversed. C. S. Voorhees and Reese H. Voorhees, for appellant. Harris Baldwin, for respondent. FULLERTON, J. The respondent, who was plaintiff below, brought this action to recover the sum of $2,500 and interest, alleged to be due under the following agreement: "This agreement, made and entered into this 22d day of February, eighteen hundred and ninety-seven (1897), between Walter W. Wishon, of the city of Butte, county of Silver Bow, state of Montana, the party of the first part, and James B. Jones and Chas. E. Barr, of the city of Spokane, state of Washington, for the Great Western Mining Co., parties of the second part, witnesseth: That whereas, the said party of the first part is a mining engineer and expert, whose opinions and statements concerning mines and mining properties is of value, and is highly regarded by those who are purchasing mines and mining property; and whereas, the said parties of the second part are desirous of selling and disposing of those certain mines and mining property, of which said parties of the second part are owners, hereinafter described, and is desirous of employing the said party of the first part in reporting on the said property, so as to have his professional recommendation or other report upon the same, as the property 69 P.-70 may warrant: Now, therefore, this agreement witnesseth: That for and in consideration of the services rendered and to be rendered by the said party of the first part in the sale of the said mines and mining property which is now pending, or on any sale or sales which may be made by and through the report upon said property by the said party of the first part at any time, or to any person or persons whomsoever, of the Great Western group or property, consisting of the Great Western mining lode claim and the Golden Chariot mining lode claim, situate at Rossland, Trail Creek mining district, West Kootenay subdivision of British Columbia, and in consideration of the report of the said party of the first part, cr any part of the same report, or any map, writing, printed matter, or other recommendation or statement made by the said party of the first part for and on account of the sale, which is now pending, for the price of dollars, or any sale or sales hereinafter to be made by and through the said report, or any part thereof, of the said property, the said parties of the second part covenant and agree to and with the said party of the first part that they will pay him, or his heirs or assigns, the full sum of twenty-five hundred ($2,500) dollars, to be paid immediately upon the payment of the purchase money. And it is further agreed and understood that the expense incurred in making the trip from Butte City, Montana, to the said property and return, and during the examination, assays, maps, etc., by the party of the first part, shall be repaid to said party of the first part by the said parties of the second part at the time and times said expense is incurred. And the said party of the first part promises and agrees to and with the said parties of the second part that he will use all his professional skill, and will make a full and complete report of the said mines and mining property, and will expert the same, and will do all in his power to bring about a fair and honest sale of the said property. In witness whereof, the said parties hereto have set their hands and seals the day and year first above written. W. W. Wishon. [Seal.] Great Western Mining Co., by Jas. B. Jones, Chas. E. Barr. [Seal.] Witness: From the record it appears that the appellant is a corporation organized under the laws of this state, having a board of seven trustees. At the time of the execution of the contract above set out, it was, and for some time prior thereto had been, the owner of the mining properties described in the contract, which it was desirous of selling, and to that end individual efforts were being made by certain of these trustees to find a purchaser. Among those endeavoring to sell the property was James B. Jones. He was in communication with a person in London, England, who had, just prior to the date of the contract, sent him a cablegram, requesting a mining engineer's report upon the property. To procure such a report, Jones communicated with the respondent, who met with him and Charles E. Barr, who was also a trustee, in the city of Spokane, when the contract sued upon was entered into. It further appears that, pursuant to the contract, the respondent visited and examined the mining properties, and afterwards made a report thereon, copies of which Jones forwarded to his London correspondent. No sale of the properties, however, resulted therefrom. Thereafter the company sold the properties to the British America corporation. This sale was brought about apparently through the efforts of Jones, Barr, and another trustee by the name of Warren, who, in the negotiations leading up to the sale, furnished, for the use and information of the persons representing the purchaser, copies of the respondent's report, with others of a similar nature. The action was tried before the court and a jury, and resulted in a verdict and judgment for the full amount demanded. Of the errors assigned we shall notice but one, namely, that the evidence is insuflicient to justify the verdict. The respondent bases his right to recover upon the grounds of ratification and estoppel. It is not claimed that Jones and Barr had precedent authority from the corporation to enter into the contract sued upon in its behalf, nor is it contended that they had, of themselves, or in connection with trustee Warren, authority to enter into a contract on behalf of the corporation for the sale of the mining property. But it is said that the evidence shows that a majority of the trustees of the corporation had knowledge, prior to the sale of the mine, that the contract had been entered into, and the report made in pursuance thereof, and that they suffered and permitted certain of the trustees to use the report in effecting a sale of the mine, of which the corporation received the benefits; and that these acts amount to a ratification, and estop the corporation from asserting that the act was unauthorized. If the evidence justified the conclusion here drawn from it, which we think can be fairly doubted, it seems to us that it falls short of making a case under the terms of the contract. The contract provides that the sum named therein is to be paid only in case a sale is effected "by and through" the report to be made in pursuance thereof. This means, if meaning is to be given to it at all, that the report must be the moving cause in effecting a sale of the property. So far from showing this, the evidence fails to show that the report aided in the slightest degree in effecting the sale. Indeed, the agent who represented the purchaser, and the only person who testified for the respondent on the subject, remembered the fact that the report had been submitted to him only because he found it among his papers at the time of his examination. This is not enough. The proofs should show that the report aided in some degree in the sale of the property, and without such proofs the respondent cannot recover, even though it be shown that the contract was the contract of the appellant. The judgment is reversed, and the cause remanded, with instructions to dismiss the action. REAVIS, C. J., and MOUNT, ANDERS, HADLEY, WHITE, and DUNBAR, JJ., con cur. (29 Wash. 359) STATE ex rel. JACKSON v. KING COUN- 1. Under Sess. Laws 1899, p. 39, authorizing counties to operate and "maintain" ferries across unfordable streams, etc., a county may lease a ferry owned by it to private individu als. 2. A lease of a ferry by a county to private individuals, being within the scope of the county's powers, under Sess. Laws 1899, p. 39, authorizing it to maintain ferries, the act of the county in making such lease is not subject to review by the courts, unless there is a gross abuse of power, practically amounting to fraud. 3. Under Sess. Laws 1899, p. 39, authorizing counties to operate and maintain ferries across unfordable streams, etc., "by and under the direction and control of the board of county commissioners, and as such board shall by resolution determine," a county is not prohibited from leasing a ferry to private individuals, but is merely restricted from leaving the rates of toll and the number of trips a day optional with the lessee, and is only required to see that the tolls are reasonable and the service adequate. 4. Laws 1901, p. 183, entitled "An act for the leasing of county property and declaring an emergency," ," and providing that no lease of property owned by a county shall be made except to the highest bidder, etc., has no application to a case where a county, under the authority to maintain ferries, granted by Sess. Laws 1899, p. 39, leases a ferry to private parties. Appeal from superior court, King county; Boyd J. Tallman, Judge. Action by the state of Washington, on relation of Henry F. Jackson, to enjoin King county and others from carrying into effect a contract for the lease of a ferry. From a judgment in favor of defendants, complainant appeals. Affirmed. Wilmon Tucker and Ivan L. Hyland, for appellant. Walter S. Fulton and Frank S. Griffith, for respondents. FULLERTON, J. On November 1, 1901, the board of county commissioners of King county entered into a contract with George Bartsch and H. E. Tompkins, by the terms of which Bartsch and Tompkins undertook and agreed to take possession of a certain ferryboat, owned by the county, and used for carrying passengers and freight, and operate the same for a period of three years, in consideration of the tolls to be earned by the boat, at rates to be prescribed by the board of county commissioners, and the further sum of $375 per month, to be paid out of the county treasury. The contract further provides that Bartsch and Tompkins shall keep the boat in commission and running on such schedule time as may be fixed by the board, and shall not charge any greater tolls than the board shall from time to time determine. The board agree, however, that the rate of tolls shall not be fixed below a certain minimum named in the contract, and that the schedule time of the boat shall not be fixed at more than seven trips per day. The appellant, who is a resident citizen and taxpayer of King county, instituted this action to enjoin the board of county commissioners from carrying into effect the contract, averring in his complaint that the county was without power to enter into the same, and that the contract was void, as against public policy; further averring that it was entered into by the board of county commissioners without first submitting the matter to competitive bidding. A demurrer was interposed to the complaint, and sustained by the trial court, and from the judgment entered thereon this appeal is taken. The appellant urges here the want of power of the board of county commissioners to enter into the contract. But we think this power is conferred by the act of the legislature of March 6, 1899 (Sess. Laws 1899, p. 39). It is there provided that any county within the state is authorized to operate and maintain a ferry across any unfordable stream, lake, estuary, or bay, within or bordering on such county, "free or for toll, by and under the direction and control of the board of county commissioners of such county, and as said board shall by resolution determine." This act empowers a county to maintain, as well as operate, a ferry. In carrying into effect the contract in question, the county is doing no more than maintaining a ferry, and it is not therefore proceeding in excess of its powers. With the policy of this contract, viewed from a business standpoint, the courts have nothing to do. Where a county is acting within the scope of its powers, its acts are not subject to review by the courts, unless they show such a gross abuse of the power conferred as to amount practically to fraud. Nothing of this kind is shown by the record before us. It is said, however, that the act requires that a ferry maintained by a county shall be under the direction and control of the board of county commissioners of such county, and that this contract surrenders such direction and control, inasmuch as it is agreed that the board will not reduce tolls below a certain minimum, or require the boat to make more than a certain number of trips per day, and that these conditions render the contract void. But we cannot think the clause in the statute here referred to means that the board may not agree that for fixed periods it will not make changes in the rates of toll or the schedule time of the boat. To deny to it this power would be virtually to deny it the power to contract at all for the maintenance of a ferry, as every contract must mean the surrender for the time being of some absolute right. The limitation means, we think, that the board shall not leave it optional with the persons operating the ferry what rates of toll shall be charged, or what number of trips the ferry shall make, but that it must exercise its right of control in so far as to see that the tolls are reas nable and the service adequate, and that when it does this it is acting within its power. To sustain the contention that the contract should have been submitted to competitive bidding, the act of March 6, 1901, is cited (Laws 1901, p. 183). An examination of this act, however, convinces us that it has no application to cases of the character in question here. The judgment is affirmed. MOUNT, ANDERS, HADLEY, WHITE, and DUNBAR, JJ., concur. (29 Wash. 491) SEATTLE & M. R. CO. v. BELLINGHAM BAY & E. R. CO. (Supreme Court of Washington. Aug. 26, 1902.) EMINENT DOMAIN-RAILROAD RIGHT OF WAY -CERTIORARI TO REVIEW CONDEMNATION RIGHT OF WAY PROCEEDING-EXISTING PROPERTY NOT IN USE. 1. Const. art. 1, § 16, provides that, whenever an attempt is made to take private prop erty for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public. Article 4, § 4, provides that the supreme court shall have power to issue writs of certiorari, etc., and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. No review on appeal of the question of public use and interest involved in the exercise of eminent domain proceedings is allowed. Held, that the supreme court had jurisdiction to issue certiorari to bring up for review the record in an action adjudging the right of way of one railroad necessary for another road, that the intended use was a public one, and that the public interest required its appropriation. 2. An application for certiorari, praying for a review of an adjudication that the right of way of one railroad can be condemned for the use of another railroad, or that it is for a public use, and required by the public interest, and denying the power to appropriate such property because it is already appropriated for the construction and operation of a railroad, states sufficient cause for the issuance of the writ. 3.2 Ballinger's Ann. Codes & St. § 5647, authorizing the appropriation by a railroad of a longitudinal section of existing right of way through cañons, passes, and defiles, does not exclude the appropriation of existing right of way in all other cases; and one railroad may, when necessary, condemn a right of way through the right of way of another railroad not in use for railroad purposes, and not necessary for the corporation franchises. 4. The taking of an existing right of way for the right of way of another railroad, which was shown to be practicable, necessary, and reasonably safe, did not violate the rights of the first company. Certiorari to superior court, Whatcom county; Jeremiah Neterer, Judge. |