Oct. 1893.] Opinion of the Court-HOYT, J. in substance, an assessment for the purposes set out in the complaint, unless the acts done by the attempted incorporation were validated by force of the re-incorporation under the law of March 27, 1890 (Laws, p. 133, §4). The court below held that such was the effect of the act of reincorporation, but in so doing we think it committed error. We are unable to find any authority in said act for holding that any of the attempted incorporations under the act of February 2, 1888 (Laws, p. 221), would by the simple act of re-incorporation validate all of the acts of such attempted incorporations. It follows that there was no such assessment as would be a foundation for the action described in the complaint. As to the second proposition, it is not necsssary for us to decide as to the first branch thereof, for the reason that we are of the opinion that even if such estoppel exists as against the appellant, the respondent is not in a condition to take advantage thereof. It did not by itself do the work for which the lien is claimed. All of its rights in the action therefor grow out of the attempted assessment, which, as we have seen, was of no effect. If the acts of the appellant were such as to estop him from denying his liability on account of the improvement, such estoppel could only have force as between him and those who actually did the work, and, as they are not before the court, we cannot decide as to their rights. There was no assessment which bound the property of the defendant, nor any estoppel as against him which could have force in favor of the respondent. The action of the court in holding to the contrary, and entering judgment in favor of respondent, must be reversed, and the cause remanded with instructions to dismiss the action. DUNBAR, C. J., and STILES, ANDERS and SCOTT, JJ., concur. 7 198 7 501 34* 834 35* 375 7 198 12 187 7 198 17 481 Opinion of the Court-HoYT, J. [ 7 Wash. [No. 1043. Decided October 20, 1893.] F. BURDEN, Respondent, v. J. F. CROPP, Appellant. APPEAL-SUFFICIENCY OF EVIDENCE. The verdict of a jury will not be disturbed where there is sufficient evidence to establish all the facts necessary to sustain the issue made by the successful party, although the court may be of the opinion that evidence upon the other side is of greater weight. Appeal from Superior Court, Walla Walla County. J. O. Ross, H. S. Blandford, and T. P. Gose, for appellant. Thomas & Dovell, for respondent. The opinion of the court was delivered by HOYT, J.-The only question presented by the record in this case is that of the sufficiency of the evidence to sustain the verdict of the jury, and as we think that the testimony of the plaintiff's witnesses, if believed by the jury, was sufficient to establish the cause of action set out in the complaint, it follows by well established principles that the verdict must be sustained, even although the testimony offered in opposition thereto is more satisfactory to our minds. It is not enough to authorize us to disturb the verdict of a jury, that we should be of the opinion that the evidence upon the other side was entitled to a greater weight than that upon which the verdict seems to have been founded. It is enough if there was any evidence which, if uncontradicted, would be sufficient to establish all the facts necessary to sustain the complaint of the successful party. It was strongly insisted upon the argument that since it was conceded that the plaintiff commenced work for the defendant at the price of thirty dollars per month, and labored continuously after such commencement until the end of the time for which he seeks compensation, that it must be presumed that during all such time he was at work for the thirty dollars per month. The proposition thus contended for would doubtless be true in the absence of proof of the termination of the contract for the thirty dollars a month, and the substitution therefor of a new contract, but in the case at bar we think the testimony of plaintiff was sufficient to show such termination of the original contract, and the continuance of the service under a new one, and though some of the testimony of the plaintiff may seem to us to be inconsistent and unsatisfactory, yet the question of what was proven thereby was one properly submitted to the jury, and they having come to a conclusion thereon, it is final and concludes this court. The judgment appealed from must be affirmed. DUNBAR, C. J., and ANDERS, STILES and SCOTT, JJ., concur. [No. 1078. Decided October 20, 1893.] PAULINE J. DAVIS, Appellant, v. E. H. HINCHCLIFFE AND ENJOINING FORECLOSURE SALE EVIDENCE IN EQUITY CASES IRRELEVANCY. In an action to restrain the foreclosure sale of mortgaged personalty, the owner claiming the mortgage debt to have been discharged in consideration of a conveyance of land to the mortgagee, evidence showing the value of the land and the price for which it had been subsequently sold by the mortgagee is irrelevant. Although in equity cases the decision will be based upon the evidence introduced without objection, regardless of the pleadings, yet it is the duty of the court to exclude testimony which is wholly irrelevant to the pleadings, when objection is made. 7 199 22 143 Opinion of the Court-STILES, J. [7 Wash. Appeal from Superior Court, Spokane County. Jones, Belt & Quinn, for appellant. The opinion of the court was delivered by STILES, J.-The husband of appellant had executed a chattel mortgage upon the machine in question to the Aultman-Taylor Company in 1888, when it was located at his place of residence in Rice county, Minnesota; and at a later date, in order to obtain consent of the mortgagee to its removal to this state, he and appellant gave additional security for the debt covered by the chattel mortgage, in the shape of a second mortgage on a farm in Minnesota. While the first mortgage on the farm was being foreclosed in April, 1889, an agent of the mortgagee called upon Davis in this state, and made an arrangement whereby the legal title to the farm was conveyed to the mortgagee, in form, but subject to a memorandum contract from which the actual arrangement appears to have been that the mortgagee should make all reasonable effort for the period of six months to sell the equity in the land for enough to pay off the chattel mortgage indebtedness upon which the notes and chattel mortgage were to be surrendered; but upon failure to so sell, the chattel mortgage was to remain in full force. Appellant brought this action, alleging that the conveyance of the land in which she joined was intended to be, and was represented to her to be, in satisfaction of the chattel mortgage debt; and that she had thereafter become the owner of the machine by purchase from her husband for a valuable consideration. Respondent Hinchcliffe was the sheriff of Spokane county, in whose hands the chattel mortgage was placed for foreclosure by notice, and this suit was brought to restrain a proposed sale. Oct. 1893.] Opinion of the Court STILES, J. The evidence showed that the deed and accompanying contract were forwarded to the Aultman-Taylor Company, at Mansfield, Ohio, the home of the corporation. The deed was delivered in Spokane county, April 11, 1889, and it was claimed for the respondent company that the whole transaction was repudiated by it as soon as it became aware of its terms, it being at liberty to do so because its agent had no authority to enter into any such engagement or do anything but collect money. May 11, 1889, another agent, having general powers, induced Davis to endorse a cancellation upon the special contract, but retained the contract in his possession, and caused the deed which he claimed to have offered to return, to be recorded in Rice county, Minnesota, in June following. Subsequently the land was bought in by the Aultman-Taylor Company at the foreclosure sale under the first mortgage, and a re-sale was made of it to third parties. Whether the deed of Davis. and wife, which was on record, assisted in the final disposi tion of the full title is not clear, and is not material. Appellant maintains, upon the case presented, that she should have had judgment under the rule that a purchaser of the equity in mortgaged land who takes subject to the mortgage cannot recover against the mortgagors the debt for which the land was pledged. National Investment Co. v. Nordin, 50 Minn. 336 (52 N. W. Rep. 899); Dickason v. Williams, 129 Mass. 182; Tice v. Annin, 2 Johns. Ch. 127. But, whether we concede the special contract to have been set aside or not, it remains that the title was not, in this case, conveyed subject to any mortgage, either first or second. The deed contained nothing upon the subject, and if the recording of the deed after Davis had written his cancellation of the special contract, were to be taken as sufficient to keep the arrangement in force, the terms of the latter instrument were not such as to sustain the appellant's claim that the chattel mortgage was to be forth |