him by Gleeson through Reilly acting as the money advanced on behalf of Gleeson's inagent of both parties. And the trial court, terest in the partnership," the amount due notwithstanding the contrary result reached Costello because of such advances was oneyears before in the Costello-Copper Belle | third of approximately $100,000, or more Mining Company case, acting principally up- than $30,000. And notwithstanding it was on the foregoing facts, came to the conclu- Gleeson's intention at that time to repay sion, and we think very properly so, that Costello out of the proceeds of these notes, the sale of the notes to Costello by Gleeson and although there was no other source was not bona fide, but only simulated-done from which he could procure funds for this for the specific purpose of enabling Costello purpose, the fact remains that he accepted to do for Gleeson what he probably could the full amount of the judgment, and used not do for himself, viz. collect the notes. no part of it to reimburse Costello, and, beAnd Costello's act in returning to Gleeson cause of such acceptance and failure to rethe proceeds of the notes is found by the pay, the latter was left without even security court to have been in accordance with the for the very advances he had agreed to make understanding had between them at the time only upon a promise of security, and which the simulated sale was agreed upon that in fact were only made after such security immediately after the collection of the notes had been "left in the possession of Reilly, by Costello he would turn over to Gleeson, representing the partnership." their rightful owner, the entire proceeds thereof.

Such action on the part of Gleeson, appellant contends, in reality constituted a withAlthough the notes were actually trans-drawal from the alleged partnership of any ferred to Costello on July 2, 1902, "for the contributions he had made thereto, and purpose of making more sure their collec- should be construed as having effected a tertion," and though the proceeds thereof after mination of any partnership agreement therecollection were turned over to Gleeson in tofore existing, as well as a relinquishment September, 1908, yet, during al this time to Costello of any interest or claim Gleeson and for six months prior thereto, as appears may have had in the properties belonging to from the findings, they were performing an the partnership before its dissolution. The important, though separate and distinct, terms of the agreement extending the scope function, in connection with the partnership. of the partnership made it the duty of GleeThis is shown by the fact that in February, son to transfer the notes to Costello as se1902, when the three partners decided to ex-curity, but instead of transferring them to tend the scope of the partnership, Gleeson him individually, as the agreement required, was without means to embark upon such an he "left them in the possession of Reilly, enterprise, and Costello, upon the suggestion representing the partnership, as security of Reilly, agreed to advance for him his for his obligation to contribute his share of one-third of the cost thereof, but upon two the expenses of the partnership." And this conditions, viz.: First, that Gleeson would deposit with the partnership, Reilly being transfer to him, as security for such ad- merely its representative for this purpose, vances, the Copper Belle notes which had appears to have been accepted by Costello that day come into Gleeson's possession as as a sufficient compliance with the agree owner; and, second, that title to all claims ment to transfer to him. It is true, however, acquired should be taken in his name and so that for the purpose of making a pretended held until Gleeson and Reilly should re- sale appear as an actual one, and thus renpay him their share of the purchase price der more probable the collection of the notes, of said claims. In accordance with this Gleeson transferred them to Costello in July, agreement, as found by the court, Gleeson at 1902, but such transfer was in no way conthat time "left the Copper Belle notes in nected with, nor in furtherance of, the servthe possession of Reilly, representing the ice the notes were then performing of separtnership, as security for his obligation to curing Costello, and since the sale of the contribute his share of the expenses of the notes was a mere pretense and a sham, the partnership," and in pursuance of this ar- transfer of them in aid of such an act rangement, during the succeeding six years, should be regarded likewise. If, therefore, the partnership purchased a large number of the finding that the notes in the possession mining claims, and took title to them in the of the partnership were serving as a guarname of Costello, who advanced from his antee be accepted as true, it follows necespersonal funds in purchase price, assess- sarily that while thus engaged they were bement work, taxes, and the procuring of pat- yond Gleeson's control and so closely conents to a number of the claims, nearly $100,- nected with the contribution they were then, 000, which was in addition to the $20,000 he and for years had been, responsible for that had paid for the Power claims. When, an acceptance at that time of their proceeds therefore, Gleeson called on Costello and by him was in reality a withdrawal from the Reilly in September, 1908, for the purpose partnership, which resulted in its terminaof settling up the Copper Belle transaction, tion and in the relinquishment of his interand, as found by the court, "for repaying est in the property which it had owned to

agreement, as Gleeson testified there was, by, paid, however, and the option lapsed on Sepwhich he was permitted to "take down" the tember 30, 1908. money and retain his interest as well by paying for it in another way.

The agreement referred to by Gleeson appears in the following examination of him by the court:

How was that? A. I had to take that. He

Gleeson's other reason for taking down the money is found in the remark he attributes to Costello, "I never considered you an owner in the two claims and a half of the Casey," which, according to Gleeson, caused him to "Q. How was Mr. Costello to be repaid for fear that, unless he did take the money, he the money he had advanced? A. He had those might lose both his interest in the claims Copper Belle notes of mine. Q. Then how were you to pay him for what he had put up on this and the proceeds of the notes, inasmuch as property, if you got all your money back for he had nothing to show that he owned either. the Copper Belle notes? A. I had to take it Testifying further on this point, Gleeson back. He could have said he didn't owe me stated that when they were trying to settle anything; that there was nothing coming. the Copper Belle matter in September, 1908, could have said there was no money. There Costello denied several times that either Gleewas enough money coming from the C. & A. to son or the partnership owned any interest in pay my interest outside of that. Q. He agreed to get this money from the C. & A.? A. Yes, the Casey claims, giving as his reason the sir; that is the reason I took it down. Q. Now, fact that he had a mortgage on them before in regard to your interest in the corporation he and Gleeson went in together. After the that you were to have, were you to pay for last denial and some argument, following that interest in the corporation? A. Sure, the money was up all the time. Q. That is to say, it, they both became angry, whereupon Gleethat Costello agreed that you could take down son said, "Give me that money," to which your money, and he would take a chance on the Costello replied, "Don't get mad about it; C. & A. making this payment? A. I don't see that he took any chances. Q. Well, he certain- you are all right; you can have your interest ly did, since it was never paid. A. I said that in the other claims." Gleeson, replied, "By I took it down- Q. You what? A. I said I God, I will have it all or nothing; give me took it down. Judge Reilly said, 'Call this Copper Belle transaction off. There is money that money." Then it was that Gleeson enough coming from the C. & A. to pay it all. accepted the money, to wit, $33,659.32, the We will all get money.' I said, 'I don't want balance coming to him after others had been to call it off; and Costello said, 'I never con- paid at his request the amounts due them. sidered you an owner in the two claims and a half of the Casey,' that is why I took it down. I had nothing to show I had claims, I had money, or anything else."

The court finds that Gleeson, in taking the money, acted upon Reilly's suggestion-really accepted his proposition-that since there was enough money due in a few days under the C. & A. option to more than pay all moneys advanced by Costello, "it was not necessary that the said John Gleeson repay Costello for his advances out of the proceeds of the Copper Belle notes, and that it was best for Gleeson to take all of the proceeds of such notes, and have no further dispute over the and that everything would be all right." According to Gleeson's reply, "Yes, sir; that is the reason I took it down," to the court's question, "He agreed to get his money from the C. & A.?" this arrangement was satisfactory to Costello, but evidently the court was not convinced on this point, for there is no finding that Costello did agree to it. And in view of the other reason given

It does not appear just how Reilly's suggestion that the Copper Belle transaction be called off could have furnished a reason for Gleeson's "taking down the money," since it has been established that there was no sale of the Copper Belle notes to "be called off," and that Gleeson returned to Costello within 14 days after its receipt the $25,000 "pretended" consideration for the notes. Such trans-matter, action could have been "called off" only if the testimony given by Gleeson at the first trial of this case had been true, namely, "I put up $25,000 to pay for my part of the mines, but when they called the transfer of the Copper Belle notes off, why, of course, I got that money back." While the second part of Reilly's suggestion, "there is enough money coming from the C. & A. to pay it all," seems to have been offered as an excuse for calling by Gleeson, that he "took down the money" off the Copper Belle transaction-an impossible thing under the circumstances-yet Gleeson gives it, supplemented by the statement that Costello agreed to it, as one of his reasons for "taking down the money." When Reilly and Gleeson referred to the "money coming from the C. & A.," they meant the $35,000 due September 30, 1908, and the $100,000 due March 30, 1909, on the option held by the Calumet & Arizona Mining Company on the Casey claims, to wit, the Tin Horn, Hard Up, and Head Center-three of the most valu. able claims owned by the partnership-and two others known as the Black Hawk and the Smile of Fortune. The $35,000 was not 172 P.-47

because Costello denied his interest in the Casey claims on which the "money coming from the C. & A." would be due in a few days, it is not apparent how such a finding could have been made. Gleeson did not testify that Costello indicated his consent by any spoken word, but declared that he "was right there" when Reilly made his suggestion. Costello's continued denial, however, of Gleeson's interest in the Casey claims in the presence of both Gleeson and Reilly rendered it unnecessary for him to object in specific terms to Reilly's suggestion in order that his silence might not imply an agreement by him to take the risk of getting his money

from the C. & A. In fact it is clear that Costello would not have agreed to repay himself out of the purchase price of mines he was at that very moment claiming to be his own individual property, for advances he had made in Gleeson's behalf. For him to have done so under the circumstances 'would have been the equivalent of promising to make Gleeson a present of a one-third interest in the partnership.

court to enter judgment in favor of appellant, declaring her, as the executrix of the last will and testament of Martin Costello, deceased, to be the owner of the mines and mining claims described in the third amended complaint, together with costs.

FRANKLIN, C. J., and ROSS, J., concur.

N. B.-Judge CUNNINGHAM being disqualified and announcing his disqualification in open court, the remaining judges, under section 3 of article 6 of the Constitution, called in Hon. A. G. MCALISTER, judge of the superior court of the state of Arizona, in and for the county of Graham, to sit with them in the hearing of this cause.

ROBERTS v. STILTNER et al.

(Supreme Court of Washington.
1918.)

(101 Wash. 397) (No. 14372.)

April 25,

It may be, as the findings state, that Gleeson at the time he accepted the money did not intend to abandon his interest in the mining claims belonging to the partnership. Nevertheless his act in accepting the proceeds of the notes, which all these years had been the foundation stone upon which his interest in the extended partnership rested, without making any arrangement whatever for paying his proportion or furnishing other security therefor, shows conclusively the abandonment by him of his interest in the partnership property, regardless of his intention. His statement, as Costello handed him the check, that he would fight for this property as long as he lived, in view of his act, is In a suit for the specific performance of a unavailing, for "actions speak louder than contract for the sale of real estate which recited words." That title to the claims stood in the the receipt of a certain sum of money as part name of Costello, as agreed in the beginning, oral testimony showing that the true considerof the consideration, it was not error to admit that the Copper Belle notes had been trans- ation consisted in retention by the defendants of ferred to him in furtherance of a sham sale, part of the premises; such evidence not varytogether with the fact that he denied Glee-ing the contract terms, or being in contravention of the statute of frauds. 2. FRAUDULENT CONVEYANCES DENCE-SUFFICIENCY.

1. EVIDENCE 419(13)—FRAuds, Statute of 158(2)-WRITTEN INSTRUMENTS - PAROL EVIDENCE-CONSIDERATION.

295(1)—Evi

son's interest in the Casey claims while admitting it in all the others, might have justified Gleeson in withdrawing his security aside a deed by defendants to another as in In a suit for specific performance and to set in its converted form as a matter of business fraud of plaintiff's rights, evidence tending to precaution, upon the theory of the old saying show that the land was worth $5,000, that the that "a bird in the hand is worth two in the consideration for the deed was only $1,250, that bush"; but we are acquainted with no princi- the grantors and grantee were intimate friends, so that the grantee must have known of plainple of law or justice which would permit tiff's contract, in view of the grantee's failure him to withdraw his entire contribution be- to testify, though present, held to support a findcause of the fear of losing both his interesting, that such conveyance was fraudulently made. and his money and afterwards recover in an equitable action the very interest which the money withdrawn was supposed to pay

for. He cannot eat his cake and have it too. This principle is so plain that the citation of authorities is unnecessary.

Department 2. Appeal from Superior Court, King County; R. H. Back, Judge.

Suit by J. W. Roberts against Jess Stiltner and others for specific performance. Decree for plaintiff, and defendants appeal. Af

We conclude, therefore, that if a partner-firmed and remanded. ship did exist, as alleged, it was terminated John F. Dore and Robert Welch, both of in September, 1908, by Gleeson's acceptance Seattle, for appellants. C. D. Cunningham, of the proceeds of the Copper Belle notes, of Centralia, for respondent. which really amounted to a withdrawal of his interest, since no arrangement whatever was then made by him either to pay his contribution or further guarantee it. By such action, Gleeson necessarily relinquished any interest he may have owned in the partnership mining claims to Costello, who, having paid from his own personal funds the entire expense thereof, approximately $115,000, thereby became the owner of the equitable as well as the legal title to said mining claims. The judgment is reversed, and the case remanded, with direction to the superior

PARKER, J. The plaintiff, Roberts, seeks specific performance of the following contract in so far as it obligates the defendants Stiltner and wife to convey to him the S. W. 4 of section 24, in township 12 N., range 5 E., in Lewis county, excepting 10 acres described as the N. W. 4 of the N. W. 4 of the S. W. 4 of that section.

"Jan. 26, 1916. "We, the undersigned, agree to sell the following described property, to wit: S., S. W. 14, E. 1⁄2 of N. W. 4 and S. W. 4 of N. W. 4 and lot 6 in section 24, township 12 N.,

range 5 E., W. M., to J. W. Roberts for the following consideration, to wit, $5,000.00 (five thousand).

"We, the undersigned, have received this day as part of the consideration the following: One team of horses, buggy and harness, valuation $500.00 $2,700.00 cash as part of the purchase price of said land.

"J. W. Roberts agrees to give to Anna Stiltner and her husband a first mortgage on said land for $1,800.00 to be paid in two years at per cent. interest. J. W. Roberts agrees to pay back taxes and one mortgage to C. K. Walsh for $140.00, with interest, and agrees to give a bill of sale on said horses. Jess Stiltner and wife agrees to give J. W. Roberts 60 days to full close the deal. "[Signed]

Jess Stiltner.
"Anna Stiltner.
"J. W. Roberts."

the retaining of this 10-acre tract by the Stiltners and the payment of the $140 mortgage and the back taxes by him was the real consideration of that part of the consideration stated in the contract to have been received as $2,700 in cash by the Stiltners. This claim of respondent did not appear in his pleadings; he merely pleading the contract which showed that the $2,700 had been paid. He pleaded, however, that he had paid the $140 mortgage and the back taxes and tendered the $1,800 mortgage to be executed by him in final payment of the purchase price, all of which was done within the 60-day limit prescribed in the contract. The fact that the $2,700 had been paid in casb was denied by the Stiltners and brought out by their counsel upon cross-examination of the respondent while upon the witness stand, and by the testimony of the Stiltners in their defense. It was in response to this showing that evidence was introduced by respondent, thus explaining the consideration in so far as the $2,700 is concerned. The evidence, we think, clearly calls for the conclusion that this is the true meaning of the acknowledgment by the Stiltners in the contract of the payment of the $2,700 in cash upon the purchase price.

A literal reading of this somewhat involved land description shows that it covers all the land here claimed by the plaintiff and more, that is, it covers the whole of the S. 1⁄2 of the section, and also land in the N. W. 4 of the section. We note that lot 6 is the fractional N. E. 4 of the S. W. 4 of the section, containing slightly less than 40 acres according to the official plat of the United States government survey. The plaintiff also seeks the setting aside of a deed executed by the defendants Stiltner and wife to the defendant McLennan on February 10, 1916, purporting to convey the whole of the S. W. 4 [1] It is contended by counsel for apof the section. This deed, the plaintiff claims, pellants that the trial court erred in admitwas executed in fraud of his rights under ting oral evidence in respondent's behalf in the contract with the defendants Stiltners. explanation of that part of the consideration Trial in the superior court for Lewis county acknowledged in the contract as having been resulted in a judgment and decree in sub- received as $2,700 in cash by the Stiltners. stance as sought by the plaintiff, from which The argument is that this was the admission the defendants have appealed to this court. of oral evidence to vary and contradict the At the time of the making of this contract written terms of the contract, and that it Stiltner and wife were the owners of the was therefore inadmissible. Now, if appelwhole of the S. W. 4 of the section, and own-lants can lawfully be permitted to show by ed no other land or real property whatever. oral evidence that the $2,700 was not paid in It is conceded by all concerned that in so far as the contract describes land other than in the S. W. 4 of the section it did so because of the mutual mistake of all the parties. Respondent did not seek the reformation of the contract in a technical legal sense so as to exclude from the description land outside of the S. W. 4 of the section, but conceded that he had no right to any land under the contract outside of the S. W. 4 of the section. The trial court, however, by its decree did, in form, reform the contract in accordance with the admitted fact that the description was intended by all parties to be so limited. Respondent's disclaiming of the 10 acres consisting of the N. W. 4 of the N. W. 4 of the S. W. 4 of the section was because, as he claims, of an agreement made between the parties at the time of the making of the contract, that he would allow the Stiltners to retain this 10-acre tract on which their home buildings were situated, or that he would reconvey it to them upon the final consummation of the sale and the execution of the deed by them to him in compliance with the contract. It is claimed by the respondent that

cash in contradiction of their solemn ac knowledgment in the contract that it was so paid, it seems difficult to see why respondent may not also lawfully be permitted to show that the Stiltners did, nevertheless, receive property, or a promise that they might retain property already in their possession, agreed to be worth $2,700, in lieu of the $2,700 in cash. However, we think it is not the law that oral evidence explaining and showing the true consideration of the purchase price of land in a contract of this nature is inadmissible, either as varying the terms of the written contract or as being in contravention of the statute of frauds.' It Van Lehn v. Morse, 16 Wash. 219, 47 Pac. 435, Judge Gordon, speaking for the court, quoted with approval from an opinion of Justice Sedgwick, speaking for the court in Quarles v. Quarles, 4 Mass. 680, as follows:

"The principle is, I think, most clearly established, that when one consideration is expressed in a deed, any other consideration consistent with it may be averred and proved."

This view of the law was adhered to by this court in Don Yook v. Washington Mill

Company, 16 Wash. 459, 7 Pac. 964, where of the evidence convinces us that it is amoral evidence was held admissible for the ple to support the conclusion reached by the purpose of showing that the actual considera- trial court upon this question. The evidence, tion for the sale of the logs was different we think, warranted the conclusion that the from that expressed in the bill of sale. In whole of the S. W. 4 of the section was Flynn v. Flynn, 68 Mich. 20, 35 N. W. 817, worth approximately $5,000; that the conthe same view of the law is expressed, and it | sideration paid by McLennan to the Stiltners is there pointed out that such evidence is ad- therefor in no event exceeded $1,250; that missible apart from the question of reformation of the contract; Judge Campbell, speaking for the court, observing:

"The bill of complaint prays for a reformation of the deed, so as to express the true consideration; but this was unnecessary, as the true consideration may always be shown where it becomes material to do so, without reforming the deed."

the Stiltners and McLennan were very intimate friends; and that their relations were such that McLennan must have known that there then existed this contract of sale for the land between the Stiltners and respondent. We note that McLennan did not testify upon the trial, though in the courtroom during the whole of the trial. We think it would be unprofitable to review the evidence

clude that the trial court correctly determined this question in favor of respondent.

In the text of 17 Cyc. page 653, we read: "*** It is held by an uncounted multi-here in detail upon this question. We contude of authorities that the true consideration of a deed of conveyance may always be inquired into, and shown by parol evidence, for the obvious reason that a change in or contradiction of the expressed consideration does not affect in any manner the covenants of the grantor or grantee, and neither enlarges nor limits the

grant."

Nor

here notice, all to be done within 10 days following the entry of the decree, to the end that it be made effectual; we conclude that such 10-day limit, or such other further reasonable time as the trial court may determine, shall commence to run from the day of the filing of the remittitur in the superior court for Lewis county evidencing the judgment rendered by this court upon this decision. The cause is remanded to the trial court for such further proceedings looking to the rendering of the judgment and decree effectual as may be necessary, not inconsistent with our views herein expressed.

The judgment and decree of the trial court are affirmed. While the decree determines the respective rights of the parties, it provides for the doing of certain things by the respective parties, such as making proper And on pages 655 and 661 the text and conveyances, executing the $1,800 mortgage authorities cited in support thereof show in proper form, and the payment of the sum that the rule is as applicable to contracts as of $207.39 by respondent to McLennan in adto deeds, unless the statement of the man-justment of a certain matter incident to the ner of the payment of the consideration, or case which we have found it unnecessary to the part thereof in question, evidence an executory contractual obligation. Plainly, the mere acknowledgment of the payment of the $2,700 is in no sense an evidencing of any contractual obligation on the part of respondent, and so far as his obligation to pay the $140 and the back taxes is concerned the evidence clearly shows he performed those obligations within the time specified. do we think the fact that the actual consideration, in so far as the $2,700 is concerned, consisted in whole or in part of an agree ment on the part of respondent to allow the Stiltners to retain the 10 acres, prevents the application of the rule of allowing oral evidence explaining the consideration in this case. They already had possession of these 10 acres and the legal title thereto, and, in its last analysis, the question of their retention of the 10 acres under the oral arrangement had to do only with the question of the explanation of the expressed consideration in so far as the acknowledged $2,700 cash payment is concerned. We are of the opinion that the court did not commit error in admitting oral evidence explanatory of the expressed consideration in this respect.

ELLIS, C. J., and MOUNT, CHADWICK, and HOLCOMB, JJ., concur.

(101 Wash. 511)

BOOKHOUT v. VUICH. (No. 14601.) (Supreme Court of Washington. April 26, 1918.)

1. EVIDENCE ~450(6) PAROL EVIDENCE EMPLOYMENT UNDER FARMING CONTRACT. Where a contract of employment to work upon defendant's farm, providing that plaintiff would receive one-third of the increase of all live stock then on the premises and one-third of the

[2] It is contended in appellants' behalf that the trial court erred in holding that the deed of the whole of the S. W. 4 of the section executed by the Stiltners to McLen-profits from the raising of chickens and the sellnan was made in fraud of the rights of spondent under the contract, in so far as they then conveyed the portion of the S. W. 4 of the section other than the 10 acres retained by the Stiltners. A careful review

ing of eggs, the admission of parol evidence to re-interpret the contract provisions for a share of the increase of the live stock and profits was not error, in view of the vagueness of the terms to furnish everything necessary to the carrying of the contract, and the fact that plaintiff was on of the farm, except labor.