money is paid upon the faith of it, it has been always deemed an obligatory contract, even though it be by parol, because there is an original consideration moving between the immediate parties to the contract. Damage to the promisee constitutes as good a consideration as benefit to the promisor. * * Then, again, as to the consideration, it can make no difference in law whether the debt for which the bill is taken is a pre-existing debt, or money then paid for the bill. In each case there is a substantial credit given by the party to the drawer upon the bill, and the party parts with his present rights at the instance of the promisee, whose promise is substantially a new and independent one, and not a mere guaranty of the existing promise of the drawer. Under such circumstances there is no substantial distinction whether the bill be then in existence or to be drawn afterwards. In each case the object of the promise is to induce the party to take the bill upon the credit of the promise, and, if he does so take it, it binds the promisor." Thus it will be seen that this case decides both of the questions raised by the appellant, viz. the power of the respondents to sue upon the contract, and the avoidance of the contract by the plea of the statute of frauds. The same rule is laid down in 1 Daniel, Neg. Inst. § 570. A distinction between an action on a bill as an accepted one and one founded upon a breach of a promise to accept is plainly pointed out in Boyce v. Edwards, 4 Pet. 111. We think there are some allegations in the complaint which, if construed as detached allegations, might possibly lead to the conclusion that the action was founded upon the promise alone to Brown; but when the allegations of the complaint are construed together it plainly appears that the real basis of the action was the promise made by the defendant to these plaintiffs. If these allegations are true, it was certainly an independent contract that was made between the appellant and respondents, for which the appellant is responsible. There was some conflict of testimony, but the trial court found in favor of the contention of the respondents, and we think he was justified in so finding by the testimony as sent up in the record. The other errors alleged by the appellant are, we think, without merit. The judgment will therefore be affirmed. ANDERS, STILES, HOYT, and SCOTT, JJ., concur. (9 Wash. 695) BUTLER et al. v. GREENOUGH. (Supreme Court of Washington. Oct. 27, 1894.) Appeal from superior court, Spokane county; Jesse Arthur, Judge. Action by Butler Bros. against Thomas L. Greenough. There was a judgment for plaintiffs, and defendant appeals. Affirmed. Jas. W. Marshall and Thos. C. Marshall, for appellant. A. G. Avery, for respondents. DUNBAR, C. J. This action is brought upon the same pleadings and state of facts as the case of Kelley v. Greenough, 38 Pac. 158, and for the reasons assigned by us in that case the judgment here will be affirmed. ANDERS, HOYT, STILES, and SCOTT, JJ., concur. (9 Wash. 666) D. M. OSBORNE & CO. v. COLUMBIA COUNTY FARMERS' ALLIANCE CORP. (Supreme Court of Washington. Oct. 27, 1894.) WRITS-SERVICE ON CORPORATION-DEfault. 1. An agent in charge of a branch store belonging to a corporation having a manager exercising general control of the business, including that transacted by such agent, is not a managing agent, within the statute providing that service on the corporation may be made by delivering a copy of the summons to its managing agent. 2. A defendant not served need not appear, though he has knowledge of the suit. Dunbar, C. J., dissenting. Appeal from superior court, Walla Walla county; William H. Upton, Judge. Action by D. M. Osborne & Co. against the Columbia County Farmers' Alliance Corporation on a promissory note and an account stated. From an order vacating a judgment for plaintiff, it appeals. Affirmed. B. L. & J. L. Sharpstein, for appellant. Wellington Clark and Thomas H. Brents, for respondent. HOYT, J. This is an appeal from an order vacating a judgment by default upon the petition of the respondent. The ground upon which the judgment was vacated was that there had been no proper service of the summons, and that for the want of such service the judgment was void, or at least had been irregularly entered. The service upon which the judgment was founded was made upon R. Yeend, who was in charge of a branch store or house of the defendant in Walla Walla. The defendant was a domestic corporation, having its principal place of business in Dayton, Columbia county, and having a president, secretary, treasurer, and general manager. The latter oflicer had general control of the business, including that transacted by the person in charge of the Walla Walla house. Under these circumstances, it was held by the superior court that the summons had never been served so as to bring the corporation into court. The statute provides that service upon a corporation of the nature of this one shall be made by delivering a copy to the president or other head of the company or corporation, secretary, cashier, or managing agent thereof; and the question presented for our determination is as to whether the agent upon whom service was made was, within the meaning of such statute, a managing agent of the corporation. The term "managing agent" would seem to carry the idea that such an agent was one who managed the affairs of the corporation, and not some particular part or branch thereof only. If we give to the language of the statute its ordinary significance, it would not include Mr. Yeend, who was only in charge of a single branch of the business of the corporation, among those upon whom service could be made. And if there is doubt as to the construction of the language used, standing alone, it is made certain by the two clauses of the section immediately preceding the one in which such language occurs. In one of them it is provided that an insurance company may be served by delivery to any agent authorized to solicit insurance within this state, and the other provides that service may be had upon any corporation doing an express business by delivery to any agent authorized to receive and deliver express matter, and col lect pay therefor, within this state. From these provisions it is made clear that, when the legislature intended to provide for service upon other than those having general and uniform relations to all of the business of the company, they made special provision therefor, from which it will follow that, as to corporations as to which no such special provision was made, the general language used was intended to exclude therefrom all other classes of officers and agents. Mr. Yeend, at the time service was made, was not the managing agent of the corporation, within the meaning of the statute providing for service of process thereon. Two other reasons are suggested why the order of the lower court should be reversed: One is that the defendant had knowledge of the pendency of the suit, and that such knowledge should be given the same force as proper service. But we are aware of no rule which compels a defendant to appear in a case until service has been made, requiring such appearance. The other suggestion is that there was laches on the part of the defendant in applying for relief against the judgment, but since it applied within the time provided by the statute, and since one of the causes recognized by the statute for setting aside a judgment existed, we do not see that there was any laches which should deprive it of the remedy for which the statute had provided. The order must be affirmed. STILES, SCOTT, and ANDERS, JJ., con cur. DUNBAR, C. J., dissents. (9 Wash. 566) COLLINS et al. v. SNOKE et al. (LILLY et al., Interveners). (Supreme Court of Washington. Oct. 13, 1894.) MECHANIC'S LIEN-SUFFICIENCY OF NOTICE. 1. A notice of a mechanic's lien which states that S. is the owner of the premises, and caused the building to be erected, that R. is the contractor, and that the materials were furnished under a contract with him, sufficiently shows the relationship between the parties. 2. A notice which states that S. "is" the owner of the premises is sufficient. v.38p.no.3-11 3. A notice describing the building as "that certain building or structure" on certain lots is sufficient. 4. A notice of a lien against community property, which orly names the husband as owner, is sufficient, where the notice does not show on its face that it was community property. Hoyt, J., dissenting, Appeal from superior court, King county; J. W. Langley, Judge. Action by Harry J. Collins and another against A. J. Snoke and others to foreclose a mechanic's lien; and Lilly, Bogardus & Co. intervened. From the judgment, A. J. Snoke and Ella W. Snoke, his wife, appeal. Affirmed. John G. Barnes, for appellants. Wilshire & De Steiguer, for respondents. DUNBAR, C. J. The notice in this case reads as follows: "Notice is hereby given: That Harry J. Collins and Burton V. Collins, partners doing business under the firm name of Collins Brothers, of the city of Seattle, county of King, state of Washington, have and hereby claim a lien upon that certain building or structure now upon those certain lots and parcels of land situate in the city of Seattle, county of King, state of Washington, and described as follows, to wit: Lots Nos. 11 and 12 in block No. 3, Ayer and O'Hara's addition to the city of Seattle. That A. J. Snoke is the name of the owner and reputed owner of said premises, and caused said building or structure to be built and erected. That H. C. Raymond is the name of the contractor, who, on or about the 19th day of August, 1891, as such contractor, made and entered into a contract with said Collins Brothers, under and by which the hardware was to be furnished for said building, and the following is a statement of the terms, time given, and conditions of said contract, to wit: The said Harry J. Collins and Burton V. Collins, partners as aforesaid, promised and agreed to furnish and deliver all hardware that the said H. C. Raymond should require to be used in the construction and erection of said building, and for which said Collins Brothers agreed to furnish at their regular retail price or prices for such goods so sold and delivered, and which said contractor agreed should be paid for within sixty days after the same was so furnished. That said contract has been fully performed on the part of said Collins Brothers, and the same was completed, and they ceased to furnish said hardware for said building or structure, on the 31st day of August, 1891, and ninety days have not elapsed. That the amount of the contract price for said hardware or material so furnished as aforesaid is $57.07, in United States gold coin, and that said sum is the required retail price of said hardware so sold, furnished, and delivered, and being the amount agreed to be paid for the same by the contractor. That the said sum of no amount or sum dollars has been paid on said contract price, and that the sum of $57.07, in gold coin of the United States, is still due and owing thereon to said Collins Brothers, after deducting all just credits and offsets. Wherefore, said Collins Brothers claim a lien," etc. It is urged by the appellants that this notice did not show a prima facie right of lien, in that it did not connect the claimants with appellants, or either of then, and did not connect the appellants with the owner of the building and lots; citing, in support of this contention, Warren v. Quade, 3 Wash. St. 750, 29 Pac. 827; Manufacturing Co. v. Wilson, 3 Wash. St. 786, 29 Pac. 829; Land Co. v. Jordan, 5 Wash. 729, 32 Pac. 729; Heald v. Hodder, 5 Wash. 677, 32 Pac. 728. While this court would not be inclined to give the lien statutes a more strict construction than was given in Warren v. Quade, supra, and in the subsequent decisions which were governed by it, we think it is not necessary to relax the rule there laid down, to sustain the notice in this case, for the notice in this case is, we think, free from the objections discussed in that. Section 1667 of the General Statutes is as follows: "Every person claiming the benefit of this chapter must, within ninety days after the completion of any building, improvement or structure, or after the completion of the alteration or repair thereof, or after he has ceased to labor thereon from any cause, or after he has ceased to furnish materials therefor, or after the performance of any labor in a mine or mining claim, file for record with the county auditor for the county in which such property or some part thereof is situated, a claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner, or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the terms and conditions of his contract, if any, and also a description of the property to be charged with the lien, sufficient for identification, which claim must be verified by the oath of the claimant, or some other person, to the effect that the affiant believes the same to be just." In Warren v. Quade it was held that a notice is defective which shows that the goods were furnished to, or the labor performed for, a person named in the notice, and not to or for the owner directly, when the notice fails to show such a relation existing between the person to whom they were furnished and the owner as will bind the owner under the lien laws. This doctrine, of course, cannot be gainsaid; but in that case it nowhere appeared in the notice that the defendant and the owner had any contractual relations whatever with the parties who constructed the building, while in the case at bar the notice alleges that A. J. Snoke is the name of the owner and reputed owner of said premises, and caused said building or structure to be built and erected. This may not be stated with all the nicety and distinct ness of technical pleading, but we think a person of common understanding would have no trouble in coming to the conclusion from the notice that he caused said building and structure to be built and erected as the owner, and that as such owner he contracted with Raymond for the building of the structure. It would be idle for the notice to state in terms that Raymond was the agent of Snoke, for it is the law, and not the agreement of the parties, which makes the agent, and the notice would not obtain any additional strength by stating a conclusion of law. We think the second objection made by the appellants, that the requirement of the statute that the notice must state the owner or reputed owner of the property is not met, is equally without substantial merit. Whenever a court goes beyond the realm of probabilities, and indulges in presumptions of mere possibilities, that the language of the pleading may be construed to the detriment of a party, substantial justice will be more often defeated than sustained. The strained construction of the statute contended for by the appellants would make it necessary for the notice to state the name of the owner or reputed owner during every day from the time the contract was entered into until the notice was filed, while the fact is the statute was literally complied with in this case, for it provides that at the time the notice was filed the name of the owner or reputed owner should be given. The object evidently is to give notice to the owner of the claim against his property. And the same thing may be said of the third objection, that the description of the property was not sufficient for identification. In Warren v. Quade, su pra, no building was originally mentioned in the notice, but in the fourth paragraph the statement was that "said labor and assistance were so performed and rendered upon said building aforesaid," etc.; and, as the word "aforesaid" had no antecedent, it was evidently a clear omission of a mention of a building, and, as the court rightly held, the building is the primary subject of the lien, and the attempt to assert such claim on the land, which was but a secondary subject, must fail. But the notice here is not so lame, for in the first clause it mentions the building or structure upon the lots described, and in the next clause it appears that Snoke was the owner, and caused said building or structure to be built and erected. We think all the other objections urged against the notice are equally without merit, and that neither the owner nor the foreclosing officer could have any real difficulty in ascertaining from the notice just what property was covered by the lien notice. It is also urged that, as the premises described in the notice are the community property of Mr. and Mrs. Snoke, the failure to name the latter as one of the owners was, under the ruling of this court in Sagmeister v. Foss, 4 Wash. 320, 30 Pac. 80, 744, a fatal omission, rendering the attempted notice void. Quite a lengthy discussion was indulged in by the counsel for the respective parties concerning the status of the property; but, as we understand the lien law and the community property law, the determination of the status of the property is not necessary to the determination of this case. Section 1400 of the General Statutes, which prohibits the selling or alienating of community real estate by the husband alone, specially provides that all such community real estate shall be subject to the lien of mechanics and others for labor and materials furnished in erecting structures and improvements thereon, etc. In Sagmeister v. Foss the principal point, which was decisive of the case, was that the wife was not made a party to the action of foreclosure, and this court held that she was a necessary party. That decision was rendered without any discussion of the question, and by a simple reference to Manufacturing Co. v. Miller, 3 Wash. St. 480, 28 Pac. 1035, where we held that, notwithstanding the fact that the husband could incur the debt, the wife was a necessary party to the action, because she had a right to contest the facts alleged, which, if admitted, would constitute a charge against her interest in the community property. Concerning the notice, the court, in Sagmeister v. Foss, said that a claim of lien against the husband and his interest, which showed on its face that the claimants had knowledge that the wife had a community interest in the estate, was defective. Whatever may be said of the correctness of that ruling, the question is not involved here, for the lien notice in this case does not disclose any such state of facts, while, on the other hand, the complaint affirmatively shows that such fact was not disclosed, and in this case the wife is made a party to the action. So far as the proof is concerned, we think it justifies the judgment. The judgment will therefore be affirmed. proof of service upon all the parties in whose favor is the judgment appealed from must be filed within that time. Appeal from superior court, Spokane county: James Z. Moore, Judge. Action by John Watson, as claimant, against F. McK. Pugh, sheriff of Spokane county, Wash., and W. S. Conrad, U. Holderman, and the Jones Wholesale Grocery Company, and others, attaching creditors of J. A. Gonser, in the nature of a claim to property attached. Judgment was rendered against the plaintiff and his sureties. H. M. Herrin and A. F. Carpenter, two of said sureties, appeal. Dismissed. Plummer & Thayer, for appellants. Kennan & Belden, for respondent U. Holderman. Hartson & Tolman, for respondent Jones Wholesale Grocery Co. Stout & Higgins and Forster & Wakefield, for respondents Conrad and Sloane-Paine-Richmond Co. PER CURIAM. This cause was submitted on briefs, without oral argument. The respondents have respectively appeared by different attorneys, and in their briefs have moved to dismiss the appeal upon several grounds, one of which is that proof of the service of the notice of appeal was not filed with the clerk of the superior court within the time prescribed by law. No response has been made thereto by the appellants by answering brief or otherwise, and it appears by the record that said notice of appeal was served upon certain of the defendants on the 10th day of May, 1894, and proof of such service was not made until the 25th day of said month. The statute (Sess. Laws 1893, p. 120, § 4) requires the notice with the proof of service to be filed with the clerk of the superior court within five days after the service thereof. The notice was filed within the time, with proof of service upon some of the defendants, but this was insufficient under the statute. The appeal will be dismissed, respondents to recover for the expense of one brief only. (9 Wash. 639) CITY OF NEW WHATCOM v. BELLING- 1. Under Gen. St. § 641, providing that the expenses of improving streets shall be assessed on the lands fronting thereon, each lot being separately assessed for the full debt thereof, in proportion to the benefits upon the property to be benefited, sufficient to cover the total expense of the work to the center of the street, the council has no power to charge each tract with the expense of the work in front thereof. 2. A court of equity is not estopped to inquire into the facts on which an assessment roll is based, because of the certificates attached thereto. Whatcom Appeal from superior court, county; John R. Winn and Samuel M. Bruce, Judges. Five actions by the city of New Whatcom against the Bellingham Bay Improvement Company, action by the same against M. L. Stangroom and others, action by the same against E. R. Morgan and others, and an action by the same against E. F. G. Carlyon and others, for the foreclosure of street-improvement assessments. The actions were consolidated. Judgment was rendered for defendants, and plaintiff appeals. Affirmed. T. E. Cade and J. R. Crites, for appellant. Black & Leaming, for respondents Carlyon and others. C. W. Dorr, for other respondents. STILES, J. The above-entitled cases present the appeals of the city of New Whatcom from judgments of the superior court of Whatcom county dismissing suits for the foreclosure of street-improvement assessments, commenced in pursuance of Gen. St. § 641,' applicable to cities of the third class. A great number of points against the validity of the assessments are made by the respondents, and in support of the court's action; some applying to all of the cases, and some to one or more only. But there is one of these points, which is raised in every case, which the record shows was probably the real basis of the judgments of dismissal, and which we consider as conclusive of the correctness of the action taken. When it came to the point of assessing the cost of the several improvements upon the lands fronting thereon, the city sent out its engineer, who measured and estimated the cost of the work in front of each lot, and reported it to the street committee of the council. The committee reported the engineer's estimates as the "expense of the work in front of each tract," and the council adopted the same as its equalization and assessment of the benefits to each tract. This was, if anything, a more odious method of assessing the cost of street work than that of frontage, which was recently condemned in Town of Elma v. Carney (Wash.; filed Aug. 6, 1894) 38 Pac. 707, and finds even less justification under the statute. In one instance-Garden street, from Ivy to Cedar, three blocks, including forty-eight lots, each of the same size-the assessments varied from $79.87 to $494.98 per lot. On another portion of the same street, improved under the same resolution, lot 6 in block 81, valued at only $600, was assessed in the sum of $500 for this improvement, while lot 3 in block 90, directly opposite, was valued at $700, and assessed for 1 Section 641 provides that the expenses of improving streets shall be assessed on the lands fronting thereon, each lot being separately assessed for the full debt thereof, in proportion to the benefits upon the property to be benefited, sufficient to cover the total expense of the work to the center of the street. only $125.02; the reason being that in front of the former lot there was a fill of twentyseven feet, while in front of the latter there was a cut of seven feet. Dock street was improved for two blocks only, the assessment embracing sixteen lots. Two lots valued at $7,000 and two valued at $6,200 are assessed for $15.41 and $53.03, respectively; while two lots valued at $3,500 are taxed $1,813.03, and one valued at $1,000 is taxed $1,000.07. The method of assessment employed appears from the face of the rolls, but testimony aliunde was admitted, and we see no valid objection to that course. Rubber Co. v. Commissioners, 38 N. J. Law, 190; Johnson v. Milwaukee, 40 Wis. 315. The various certificates attached to the assessment roll cannot estop a court of equity to inquire into the facts upon which they are based. Baer v. Choir, 7 Wash. 631-639, 32 Pac. 776, and 36 Pac. 286. Judgments affirmed. DUNBAR, C. J., and ANDERS, J., con cur. (9 Wash. 642) BOWER v. BAGLEY et. al. (Supreme Court of Washington. Oct. 24, 1894.) CONSTRUCTION OF CONTRACT-SALE OF LANDDIVISIBILITY-SPECIFIC PERFORMANCE. A contract providing for the conveyance of certain wild land on payment of a certain price stipulated that the obligee on payment of a certain sum per acre, for not less than 20 acres, should be entitled to a deed to such portion of the land. In accordance with the last provision, a part of the land was conveyed, and payments were made, entitling the obligee to a conveyance of 30 acres more. Held that, though default had been made in the payment of the full purchase price, specific performance of a conveyance as to the 30 acres should be enforced, without compelling payment of the unpaid balance. Hoyt and Stiles, JJ., dissenting. Appeal from superior court, King county; J. W. Langley, Judge. Action by S. J. Bower against H. B. Bagley and another for specific performance. There was a judgment for plaintiff, and defendants appeal. Affirmed. Burke, Shepard & Woods, for appellants. A. W. Hastie and W. P. McElwain, for respondent. ANDERS, J. On April 8, 1889, the appellants signed, sealed, acknowledged, and delivered the following contract: "Know all men by these presents that H. B. Bagley and K. M. Bagley, his wife, of Seattle, W. T., are held and firmly bound unto D. B. Ward, of Seattle, W. T., in the sum of ten thousand dollars, lawful money of the United States, to be paid to the said D. B. Ward, his executors, administrators, or assigns, for which payment well and truly to be made they bind themselves, their heirs, executors, and administrators, firmly by these presents. Signed by |