or that the trial court was not justified in finding that sufficient accounts had been kept in compliance with the requirement of the policy that the loss must be ascertainable from the accounts. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1711-1716.] 5. EVIDENCE 5(2)-JUDICIAL NOTICE-MATTER OF COMMON KNOWLEDGE. It is common knowledge that stocks of goods sold under compulsory process issued out of courts sell at a sacrifice. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 4.] 6. INSURANCE 665(3)-BURGLARY INSUROF GOODS-SUFFI ANCE-OVERVALUATION CIENCY OF EVIDENCE. In an action on a policy of burglary insurance, evidence held insufficient to require a holding that the goods were overvalued by insured when applying for the insurance. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1711-1716.] 7. INSURANCE 665(1)-BURGLARY INSURANCE-INSURABLE INTEREST SUFFICIENCY OF EVIDENCE. In an action on a policy of burglary insurance, evidence held sufficient to sustain finding of the trial court that plaintiffs were the real owners of the goods and had an insurable interest. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1708.] 8. INSURANCE 665(4)-BURGLARY INSURANCE-LOSS-SUFFICIENCY OF EVIDENCE. In an action on a policy of burglary insurance, evidence held sufficient to show that a loss by burglary was sustained by plaintiffs. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1722.] Holcomb, J., dissenting. Department 2. Appeal from Superior Court, Whatcom County; Wm. H. Pemberton, Judge. Action by L. S. Horwitz and another, doing business as Horwitz Bros., against the United States Fidelity & Guaranty Company. From a judgment for plaintiffs, defendant appeals. Affirmed. Romaine & Abrams, of Bellingham, for appellant. S. M. Bruce, of Bellingham, for respondents. FULLERTON, J. The respondents brought this action against the appellant to recover on a policy of burglary insurance. The cause was tried by the court sitting without a jury. The court made findings of fact and conclusions of law favorable to the respondents, and entered judgment accordingly. This appeal is from the judgment so entered. [1] The first assignment of error is that the action was prematurely commenced. The policy provided: "No suit shall be brought under this policy until three months after the particulars of the loss as required herein have been furnished to the company, nor at all unless commenced within twelve months after the date of the burglary." The particulars of the loss were furnished the company on January 9, 1915, and the ac tion was commenced by the service of a summons of March 9, 1915, a time within the limitation of three months. But the record shows that the company, on the day it received the particulars of the loss, notified the respondents by letter that it disclaimed liability and refused payment, making no objection to the form or the sufficiency of the proofs. Since the only purpose of this provision of the policy is to allow the company time to investigate the particulars of the loss and the extent of its liability without being harassed with the burdens of a suit, the requirement is satisfied when the company reaches and announces its conclusion thereon. Cascade, etc., Ins. Co. v. Journal Pub. Co., 1 Wash. 452, 25 Pac. 331. [2] It is suggested that the refusal to pay may have been because of the insufficiency of the proofs; but the announcement of a refusal to recognize liability for a loss after proofs have been furnished, without a specific objection on that ground, is a waiver of any informality or defects in the proofs. Cushing v. Williamsburg City Fire Ins. Co., 30 Pac. 736, 4 Wash. 538. An [3] The policy provided that the company should not be liable if the accounts of the assured were not so kept that the actual loss could be accurately determined therefrom. The insured property consisted of a stock of "ladies' ready to wear furs, raw furs, feathers, cloaks, suits and furnishing goods." The loss claimed was for furs only. These were in part purchased from a person who had purchased them at a bankrupt sale, and were in part furs that had been purchased subsequently to the original purThe respondchase and added to the stock. ents conducted a cash business, and seem to have kept no regular books of account. inventory was taken at the time the store was opened, and subsequent additions to the stock were indicated by notation on pads bound in book form, which showed the article purchased and the price paid therefor. When sales were made, slips showing the article sold were also made out. The stock on hand was ascertained by checking the one with the other. It is contended that this is not a sufficient compliance with the requirement of the policy. But we think it is. The requirement is not that regular books of account be kept, but only that the accounts of the assured be so kept "that the actual loss may be accurately determined therefrom." Clearly these would show the stock on hand at the time of the burglary. Malin v. Mercantile Co., 105 Mo. App. 625, 80 S. W. 56. [4] The appellant argues that the evidence shows that these slips were faked; that is, manufactured for the occasion subsequent to the alleged loss. This is founded on the testimony of an adjuster for the appellant, sent to investigate the loss, who says that no such slips were shown to him. The slips in evidence are admittedly copies, or, | the price they claimed to have paid in cash perhaps better, translations from the originals, which were written in Yiddish by the father of the respondents, who had the active management of the business. The originals were not called for by either side, nor were they introduced in evidence; but the accuracy of the copy or translation was testified to by the party who made them, and no effort was made to contradict him. We do not think these facts show that they were either faked or inaccurate, or that the trial court was not justified in finding that sufficiently accurate accounts had been kept. [5, 6] In the application for the insurance the respondents represented that the value of the stock of goods on which the insurance was desired was $8,000. It is contended that is such a false representation of the true value as to avoid the policy. The contention is rested largely on the fact that the goods were formerly the property of the respondents' father, who became bankrupt, and were sold by the trustee in bankruptcy to one Schuman, a cousin of the respondents, for the sum of $3,500. But it was testified by one of the respondents that they paid Schuman for the goods between $8,000 and $9,000, and that the goods inventoried at the time of the purchase-valuing them at the current cost prices-in the sum of $9,750.74. It was testified also that the stock had been augmented by additional purchases between the time of the purchase from Schuman and the time of the application, and that at the time of the application it was of no less value than it was when the inventory was taken. But it is common knowledge that stocks of goods sold under compulsory process issued out of courts sell at a sacrifice. Indeed, it is well known that men engage in the business of buying bankrupt stocks with the idea of profit; and the fact that this stock sold at so high a price at the bankrupt sale rather supports than contradicts the testimony that its inventoried value was in excess of $9,000. But, be this as it may, we cannot say that the good faith of the transaction was so far impeached as to require a holding that the goods were overvalued. [7] Another contention is that the respondents were not the real owners of the goods and had no insurable interest therein. But as to this the direct testimony was all the other way, and nothing against it but circumstances, more or less suspicious, perhaps, but seemingly as consistent with one theory as the other. For example, it was shown that the respondents were young men, aged respectively 23 and 24, and were following pursuits not usually very lucrative, that the fire insurance on the goods was carried in the name of Schuman, and that the father had at different times referred to the goods as his own. It is thought that the respondents could not have saved from their earnings a sufficient sum of money to buy the goods at for them, and it is concluded that the father must have been the owner, and held the goods in the name of his sons for some ulterior purpose. But the record presents presumptions equally strong supporting a contrary view. The father was in charge of the store, and naturally would speak to customers and others coming into the place as if the property was his own. This is the custom of the trade. One would gather from the pronouns used by the merest tyro in the largest department store that he was the proprietor of the establishment. Again, ownership in the father seems as improbable as ownership in the sons, if the matter is to be tested by ability to buy. As we have before indicated, the goods for the greater part were the property of the father, who became a bankrupt, and were sold, ostensibly at least, to Schuman for $3,500 in cash at a bankrupt sale. If we conclude that Schuman was a dummy purchaser, and that the cash sum paid was the money of the father, it is difficult to understand how he could have become possessed of so large a sum without the knowledge of his creditors. The business in which he was formerly engaged was not large, and he could hardly have retained so large a sum out of his business without exciting suspicion and inquiry from those trusting him with goods, who must have exercised the usual vigilance displayed in such cases. Clearly we think the greater probability is that the sons could procure the necessary money with more ease than could the father. But, after all, these are mere conjectures, opposed to the presumptions of honesty which obtain in every case, and are contrary to the direct and positive testimony of the parties to the transactions. We cannot think that they overcome the findings of the trial court who heard and saw the witnesses. [8] Lastly, it is said that there was in fact no burglary, and consequently no loss under the policy. This was the point to which the evidence was principally directed, and the court allowed it to take a wide latitude. We do not feel called upon, however, to discuss it at length. There were some suspicious circumstances. There was evidence tending to show that no trace of the thieves was ever found; that the door through which the thieves apparently entered the store could hardly have been forced without greater injury to the surrounding parts than was shown; that the respondents frequently visited the store and carried away suit cases, which appeared to be heavily laden; that a bunch of keys was found near the store, entangled in which was a short piece of thread similar in appearance to a spool of thread found in a drawer of a sewing machine in the store; that a key was found in the lock of the door twisted and bent, which was similar in appearance to a key stock purchased a few days before by a stranger; and that the father discovered tracks on the morning of the burglary leading from the open back door of the building which were not visible to searchers examining the place later. There were other similar circumstances of more or less weight, but a careful reading of the whole fails to convince us that no loss by burglary was in fact sustained. Many of the circumstances were explained; others rest on contradictory testimony, and the inferences sought to be drawn therefrom are opposed to the direct and positive testimony on behalf of the respondents. Nor are the circumstances relied upon inconsistent with good faith. Burglars are not always caught. The amount of force required to open a locked or bolted door depends upon the strength of the lock, and the damage to the door would vary in proportion to the force necessary to be used. It is not inconsistent with good faith that the owners of a store should frequently visit it, nor that in going and coming they should carry suit cases; that the suit cases carried by these young men were ever heavily laden is denied by them, and nothing in the record shows that any goods taken from the store were found in or traced to the possession of It is not improbable that a either of them. burglar entering a store would search the drawers of a sewing machine, and, if he found a bunch of keys, take it out with the idea that the keys might unlock other more secret places. Nor is it strange that he would drop the keys the moment he was through with them, that no unnecessary evidence might be found on his person in case he should be caught. And surely it is just as possible that a thread could adhere to them when carried by the burglar as it is possible for it to adhere when carried by the proprietor or manager of the place entered. The circumstance of the bent and twisted key in the lock of the door has weight only as a link in the chain of circumstances. It was not traced to the possession of the manager of the store, and the merchant who sold a similar key stock a few days before would not say that the purchaser was one of the proprietors. So with the tracks: The father was the first one at the store in the morning after the burglary, and looked when frost was still on the ground, and says they were plainly visible. That others later did not find them would not be strange. But we need not pursue the inquiry. In our opinion the trial court determined the questions of fact according to the preponderance of the evidence, and did not err in his conclusions as to the law. The judgment is affirmed. MOUNT and PARKER, JJ., concur. HOLCOMB, J. To my mind the circumstantial evidence of respondents, tending to establish that a burglary was committed, was greatly overbalanced by the circumstantial proof and logical deductions to the contrary. I am therefore convinced that the evidence, by a great preponderance, shows that no burglary was committed. Believing that the judgment should be reversed, I dissent. (95 Wash. 470) ROGERS et al. v. REYNOLDS. (No. 13779.) (Supreme Court of Washington. April 3, 1917.) 1. MINES AND MINERALS 112(3)—LIENS— ESTOPPEL TO DENY LIABILITY. Where partners allowed their engines to be operated some months by a mining company in which they were interested, and in negotiations to release the company's property from mechanics' liens agreed to a proposed mortgage covthe engines' liability to laborers' liens filed ering the engines, they were estopped to deny against the mining company. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 235.] 2. ESTOPPEL 114-PLEADING. The rule that estoppel must be pleaded does who did not know, when the liens were filed or not apply to miners claiming laborers' liens, the action brought, that third parties, against whom they urge estoppel, would claim title to part of the property. Cent. Dig. 8 304.] see Estoppel, The owner of engines used in a coal mine may be estopped to assert his ownership thereof against laborer's lien claimants, although such claimants did not prove they relied upon their employer's supposed ownership of the engines, nor did the owner make any positive representations. [Ed. Note.-For other cases, see Mines and Minerals. Cent. Dig. § 235.] 5. ESTOPPEL 95-WHAT CONSTITUTES. Estoppel may be created by silence, as well as by spoken word or overt act. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 285-287.1 Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge. Proceedings by J. M. Rogers and others against W. P. Reynolds, administrator of the estate of W. D. C. Spike, deceased, to enforce laborers' liens. Decree for claimants, and the administrator appeals. Affirmed. Hudson, Holt & Harmon, of Tacoma, for appellant. Brady & Rummens, of Seattle, for respondents. MORRIS, J. Respondents claim laborers' liens as coal miners upon certain property as the property of the Prince Coal Mines Company. The appeal is taken from a de- they could be listed with the other security cree in their favor. [1] The appeal is narrowed down to two donkey engines, which appellant claims were not the property of the coal mines company, but were loaned to it for temporary use by a copartnership composed of W. D. C. Spike, deceased, and his brother, A. W. Spike. The mine was owned by one Lambert, with whom W. D. C. Spike made a contract under which he entered into possession and commenced operation. Shortly thereafter the Prince Coal Mines Company was organized, to which Spike transferred all his interest. The work for which Hens are claimed was performed between November 1, 1914, and April 1, 1915, while the mine was operated by the coal mines company. On behalf of appellant it is claimed that it was established that these donkey engines were at all times the property of W. D. C. Spike and A. W. Spike, and were taken up to the mines in December, 1914, for temporary use only, and that it was the intention at that time that such use should continue 30 days, when the donkey engines were to be returned. Upon reaching the mine the engines were used continuously as part of the operating equipment until the mine was closed the last of March, 1915; one of the engines being used to pump water for the coal washers and the other attached to a boiler furnishing steam used in the operation of the bunkers and fan. So far as the record shows, there was nothing at the time the labor was performed to indicate there was any copartnership relation between the Spikes, or that these engines belonged to any one other than the company operating the mine. W. D. C. Spike was the main spirit in the Prince Coal Mines Company and practically the owner of its stock. There was nothing to indicate that these two donkey engines were other than the remainder of the personal property used in the development of the mine, or that any one other than W. D. C. Spike or the coal mines company claimed any interest in them. So far as the record shows, the present claim to these two engines was made for the first time after the death of W. D. C. Spike in the pleading of appellant. No such claim was made by W. D. C. Spike, who, prior to his death, had permitted a default to run against himself. in the proposed mortgage. For this purpose he went to the bank and effected some form of exchange of securities, releasing the engines from the claim of the bank and bringing back a form of release to the place where the negotiations were being carried on, in order that the engines might be safely and legally included in the mortgage. A. W. Spike unquestionably was present during a part of these negotiations, and had full knowledge of the intention to include the two engines in the mortgage. He then made no claim that the ownership was other than it was then in effect represented to be, either in his brother or in the coal mines company. He not only failed to make any claim then, but continued in his failure until after the default and death of his brother, when for the first time he puts forth the claim now contended for by appellant. The mortgage above referred to was, for reasons now not necessary to detail, never executed; but its execution was not necessary in order to give due evidentiary weight to the facts. It seems to us that these facts, taken in connection with others, work an estoppel against any claim on the part of A. W. Spike, or those representing W. D. C. Spike, that these engines should be exempt from the liens as property of the coal mines company. [2-4] It is true, as argued by appellant, that as a general rule an estoppel must be pleaded and proved, and that there must be some element of fraud, either in the intention of the party estopped or in the effect of the evidence relied upon. So far as the pleadings are concerned, no claim to these engines was set up until appellant came into the case. and there is nothing to indicate, at the time the respondents performed their labor, filed their liens, or brought this action to foreclose them, that their right to include the engines would rest upon any form of estoppel. Appellant asserts that respondents made no inquiry into the ownership of these engines, and that, had they done so, they would have learned the truth. We do not think that the law requires that men under such circumstances, in order to protect their rights, should inquire into the ownership of the tools and appliances used by them in the performance of their work. Nor is it necessary to During negotiations looking to a settlement offer proof to the effect that the work was of these labor claims, an attempt was made done in reliance upon the ownership of these to bring about a settlement by giving a mort- engines. The men knew by whom they were gage to a trustee on all the property at the employed, what they were to do, and what mine. The description of the property in was being furnished them to do with. They this mortgage was broad enough to include knew whoever was operating the property these two engines. During these negotia- employed them to perform certain labor and tions W. D. C. Spike informed those present furnished them with certain appliances, and representing the different parties that these that is all that men in like circumstances two engines were included in some form of would ever know or be charged with knowing security he had previously given a Tacoma in the absence of actual or constructive bank to secure certain of his obligations to knowledge to the contrary. Nor was it necthe bank, and that it would be necessary for essary for these claimants to do any act durhim to obtain a release from the bank before | ing the performance of this labor at this mine 164 P.-6 to indicate that they looked to these engines PARKER, J. Appellant H. A. Bier seeks as security in any other light than they re- an order of this court in the nature of a man garded other property, which to all intents date to the superior court for Benton counand purposes, so far as any outward appear-ty requiring that court to fix the amount of ance went, was all of the same character so a supersedeas bond which he may give to the far as its ownership was concerned. end that he may have kept in force the restraining order issued against respondents by that court upon the commencement of this was in effect a temporary injunction at the time of the rendering of the judgment of dismissal of the action. Appellant also seeks in the alternative an order of this court in substance the same as the restraining order issued against respondents by the superior court and kept in force up to the time of the rendering of the judgment of dismissal, to the end that the judgment ultimately to be rendered in this case upon appeal, should it be favorable to appellant, shall not be unavailing. [5] Neither is it necessary to point to any special word or act on the part of those now represented by appellant to justify an estop-action, which order it is insisted became and pel; for an estoppel will be created by silence, when it operates as a fraud, as effectually as by spoken word or overt act. Estoppel is a doctrine enforceable by the courts whenever the equities of the particular case demand it. Sometimes it may be predicated upon word or action; sometimes upon the lack of them; but, whatever its origin, it is invoked in the interest of equity and good conscience. Reading this record, and giving to all the facts that weight which in our opinion they should receive, we are convinced, as was the lower court, that these Appellant, a resident and taxpayer of Benlien claimants are entitled to relief as against | ton county, commenced this action in the suthese engines. The judgment is affirmed. perior court of that county on December 4, 1916, against the commissioners, treasurer, and auditor of the county, seeking to have ELLIS, C. J., and CHADWICK, MAIN, them enjoined from executing, issuing, or neand WEBSTER, JJ., concur. (95 Wash. 505) BIER v. CLEMENTS et al. (No. 13930.) (Supreme Court of Washington. April 4, 1917.) INJUNCTION 4-TEMPORARY INJUNCTION. Regardless of the right of an appellant who was granted a temporary injunction to continue the same pending appeal by giving a supersedeas bond under Rem. Code 1915, § 1723, the Supreme Court, under Const. art. 4, § 4, declaring that the Supreme Court shall have power to issue all writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction, may, in a suit to enjoin the execution and negotiation of county bonds where judgment was against appellant, issue in behalf of its appellate jurisdiction an order restraining execution and issuance pending determination of appeal, the county officers consenting to the order, for a disposal of the bonds to bona fide purchasers would create obligations not subject to attack, regardless of the outcome of the appeal. [Ed. Note. For other cases, see Injunction, Cent. Dig. § 4.] gotiating the sale of negotiable bonds of the county which they purposed to execute and negotiate in the total amount of $125,000 to raise funds for the building of a courthouse. Upon the filing of appellant's complaint and a showing in that behalf, but we assume without notice, the superior court issued a temporary restraining order restraining respondents "from performing any further acts whatsoever in connection with the issuing, signing, executing, delivering, or negotiating of bonds for the purpose of building a courthouse in Benton county, Wash., Νο until the further order of the court." attempt was made to have this temporary restraining order dissolved, but by agreement of counsel for all parties the cause was heard and submitted to the court for final decision upon the merits on December 13, 1916, when it was by the court taken under advisement and the restraining order continued in force by an order as follows: Department 2. Original proceeding by H. A. Bier against James B. Clements and oth-porary restraining order be continued in force "It being deemed necessary that said temers, to obtain an order in the nature of a until the final determination of said matter and writ of mandate requiring the superior court until the entry of judgment herein, and the to fix the amount of a supersedeas bond to court being fully advised in the premises: It is therefore ordered by the court that the temporakeep in force a restraining order issued ry restraining order heretofore issued in this against respondents at the commencement of matter be and the same is hereby continued in the action, or in the alternative an order in force until the final determination and entry substance the same as the restraining order. strained and enjoined from performing any of of judgment herein, and the defendants are reOrder issued. the acts set forth and mentioned in said temPorary restraining order until entry of final judgment herein, or until the said temporary restraining order shall have been dissolved." M. F. Gose, of Pomeroy, Moulton & Jeffrey, of Kennewick, and W. V. Tanner and Scott Z. Henderson, both of Olympia, for plaintiff. Donworth & Todd, of Seattle, C. W. Fristoe, of Prosser, E. A. Davis, of Pasco, and Zent & Powell, of Spokane, for de fendants. On December 29, 1916, the court rendered its final judgment as follows: "The plaintiff's prayer for a permanent injunction against the defendants be and the same is hereby denied, the temporary restraining or |