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as the jury found-and we have no doubt from the record that it was so made it was clearly not the duty of the respondent to inform the appellant of a sale after that time, unless it was to show that he was entitled to $300, rather than $200. In this action he does not claim that he is entitled to $300 provided for in the settlement contract, but is attempting to entirely evade that contract. We find no reversible error in the record. The judgment is affirmed.

ELLIS, C. J., and HOLCOMB and WEBSTER, JJ., concur. CHADWICK, J., concurs in the result.

(102 Wash. 101)

R. L. Edmiston, of Spokane, for appellants. Cannon & Ferris, of Spokane, for respondents.

ELLIS, C. J. This is an action at law to recover moneys claimed to be due on account of work performed by plaintiffs Dixon and Oliver for defendants Parker, Moran & Parker. The facts are as follows:

The city of Spokane in February, 1912, passed an ordinance requiring the Northern Pacific Railway Company to separate the grade of its tracks from that of the street grades within a portion of the city by elevating its tracks and changing the grade of certain streets. The ordinance required the railway company to bear all the expense of making the change and do all the work ex

DIXON & OLIVER v. PARKER, MORAN & cept the replacing of such sewers and city

PARKER et al. (No. 14469.)

(Supreme Court of Washington. May 4, 1918.) 1. MUNICIPAL CORPORATIONS

376

CHANGE OF GRADE LIABILITY FOR SUBCONTRACTOR'S CLAIM.

The power of a city to compel a railroad company to make a grade separation is an incident of the general police power, and is not of a contractual nature; hence the failure of a city to take from a railway company the bond required by Rem. Code 1915, §§ 1159, 1161, for the protection of laborers, mechanics, subcontractors, and materialmen, does not make the city liable to a subcontractor for work done in separating the grade of a railway company's track from the street. 2. RAILROADS 111 NOTICE OF LIEN.

MECHANIC'S LIEN

A subcontractor's subcontractor, engaged in making a grade separation for a railway, cannot recover against the railway company for labor or material furnished, where the railway company has not taken a bond from the contractor to respond in lieu of lien, as required by Rem. Code 1915, § 1129, unless the lien claimant has filed the statutory lien notice required by section 1134.

3. FRAUDS, STATUTE OF 23(2) PROMISE

OTHER.

DIRECT LIABILITY FOR A DEBT OF AN

A verbal promise by a railway company and the general contractor to see that a subcontractor's subcontractor should be paid for his work was not such an original or collateral undertaking as to take it out of the statute of frauds.

4. MUNICIPAL CORPORATIONS 376 - RAILROADS 111-EQUITY-LOSS OF LIEN.

The mere fact that a subcontractor has performed work of value in changing a railroad grade in a city does not make the city or the railway company liable in equity, where the subcontractor has filed no lien notice; there being no privity either of contract or in law between the party sought to be charged and the party claiming relief.

Department 1. Appeal from Court, Spokane County; E. H. Judge.

Superior Sullivan,

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utilities as were made necessary by changes in street grades. All of the streets from and including Division and Sprague at their intersection and west of it to Seventh avenue were affected by the change. The right of way of the railway company is 400 feet wide, except where reduced to 200 feet under the decision of the Supreme Court of the United States in the Ely Case, 197 U. S. 1, 25 Sup. Ct. 302, 49 L. Ed. 639. To make the grade separation it was necessary to re-establish the grades of the streets across the right of way, and for a considerable distance beyond. The railway company was required to excavate within its right of way, and in some cases without its right of way, and to replace the streets at the new level in good condition. The ordinance is very lengthy and explicit as to how the work shall be done, and closes with a requirement that the railway company shall accept in writing the terms of the ordinance within 45 days after its passage, failing which the ordinance shall be null and void, unless time be extended by the city council. It is conceded that the terms of the ordinance were so accepted by the railway company. Because of certain litigation touching the city's power to require the grade separation (Holland v. N. P. Ry. Co., 214 Fed. 920, 131 C. C. A. 216), the actual work was not commenced until October, 1914. A contract was then entered into by the railway company, with W. J. Hoy doing business as W. J. Hoy Company, by which Hoy undertook to do the entire work, with certain minor exceptions, as general contractor. Under this contract the work was to be paid for by the railway company according to schedules made a part of the contract. Hoy sublet different parts of the work to subcontractors, among them Parker, Moran & Parker, partners, who undertook the work of excavation. This contract was executed on December 18, 1914. Parker, Moran & Parker in turn sublet to the plaintiffs Dixon and Oliver by contract dated January 7, 1915, the drilling and blasting, but not the excavation and removal

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of the solid rock necessary to be removed | Whatever the agreement it is admitted that from the right of way and streets affected, at that time Hoy paid $1,000, which, with the from Washington street east in order to $806.40 paid by Parker, Moran & Parker, enplace the streets in their new elevation. abled plaintiffs to meet their current pay From Washington street west the work was roll. Subsequently plaintiffs also received done by others. The city through its engi- from Hoy in Hoy's office an estimate of $6,neer had general charge of the street changes 800 in June, and a further estimate of $8,000 so far as to direct what changes should be in July, 1915. These last payments, however, made and determined what would constitute were made on receipts approved by Parker, a compliance with the ordinance. The city Moran & Parker, thus corroborating in a retained the right to construct the sewers el- measure the claim of Hoy and the railway ther by day labor or contract, but the rail- company as to what the agreement was. way company was required by the ordinance Further payments were refused by Hoy on to pay for such work. the ground that Parker, Moran & Parker had canceled and countermanded the order.

We find it unnecessary to set out the voluminous pleadings. It will suffice to say that the court sustained a demurrer of the city to the complaint, and the cause was tried to the court without a jury as against the other defendants. The court, upon appropriate find

that plaintiffs recover from Parker, Moran & Parker a balance of $10,559.20, with 6 per cent. interest from the date of the judgment, but that plaintiffs take nothing against the defendants city of Spokane, the Northern Pacific Railway Company, and the W. J. Hoy Company, as to each of which defendants the action was dismissed without day. Plaintiffs Dixon and Oliver appeal.

Proceeding under their contract, plaintiffs undertook the performance of their contract with Parker, Moran & Parker. The railway company filed no bond, as required by section 1129 of Mechanic's Lien Law. Hoy gave a bond to the railway company conditioned for the faithful performance of his contract and to pay all obligations by him assumed there-ings of fact and conclusions of law, adjudged under. It appears that Parker, Moran & Parker agreed to give Hoy a bond, but failed to do so. Plaintiffs Dixon and Oliver gave a bond to Parker, Moran & Parker, but it does not appear in the record. No bond was filed in the office of the county auditor. Under the contract of Hoy with Parker, Moran & Parker, Hoy was to pay 90 cents per cubic yard for solid rock excavation, of which the drilling and blasting was, of course, a part. Under their contract with Parker, Moran & Parker plaintiffs were to be paid for the blasting 60 cents per cubic yard. These payments were to be made, the first on estimates received by Hoy from the railway company as to excavation, and the second on estimates received by Parker, Moran & Parker from Hoy on his estimate of the work done. The first controversy arose between Parker, Moran & Parker and plaintiffs in the latter part of May when the first estimate for the April work was given. Plaintiffs claimed that they were then entitled to $2,000. Parker, Moran & Parker figured plaintiffs' part of the estimate at $806.40, which plaintiffs refused. Plaintiffs appealed to E. J. Cannon, attorney for the railway company.

[1] Appellants contend that the city's demurrer to their complaint was erroneously sustained. It is urged that the city was liable to them under the terms of Rem. Code, § 1160, because it failed to take from the railway company the bond required by sections 1159 and 1161 for the protection of laborers, mechanics, subcontractors, and materialmen. It is argued that the work of eliminating the grade crossings of the railroad tracks was a public work done on behalf of the city; that the ordinance requiring the separation, when accepted by the railway company, was the exercise of a contractual power not the police power; that, therefore, the work falls within the purview of the statute making the city liable because of its failure to exact the statutory bond required to be taken from perAs to what occurred and what agreement sons doing work for it under contract. If was then made the evidence is in the sharp- the premises were sound, the conclusion est conflict. Plaintiffs claim that Cannon would be irresistible. But the premises are then promised that the railway company not sound. Appellants' minor premise, that would see that they were paid the money the relation between the city and the railway then and thereafter to become due for their company created by the ordinance was purework, and directed them to take the matter ly contractual, is based mainly upon a deciup with Hoy's office; that they then went to sion of the Illinois Supreme Court, which Hoy's office, where Hoy's purchasing agent contains some language which supports that and superintendent also agreed to see that, contention, and much which does not. City they were paid and, in effect, guaranteed fu- of Chicago v. Jackson, 196 Ill. 496, 63 N. E. ture payments. Cannon and Hoy's superin- 1013, 1135. The sole question there involved tendent and purchasing agent all testified was as to the right of a property owner, that the only promise made was to endeavor whose property had been damaged by a to secure orders from Parker, Moran & Par- change of street grade necessitated by a ker for plaintiffs' payments on future esti- grade separation of a street and railroad, to mates, so that plaintiffs would receive their recover compensation from the city. The pay directly from Hoy and in Hoy's office. | court, after intimating somewhat doubtfully

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appellants. Touching a grade separation ordinance it has said:

"The power of the council to pass such an ordinance is not an open question, nor is the It is from source of its authority doubtful. the police power that the council gets its right." Murphy v. C., R. I. & P. Ry. Co., 247 Ill. 614, 617, 93 N. E. 381, 382.

"It seems to be thought by counsel for the city that inasmuch as the railroad company has The mere fact that the railway company been lawfully compelled to abandon its tracks was required to and did accept the terms of on the street and so elevate them as to over- the ordinance and in a sense thus agreed to come the grade crossing, at great loss and expense to it, without compensation, neither do in a certain specified manner what it should the plaintiff, who has suffered loss on could be compelled to do in some adequate account of the construction of the same work, manner, did not change the character of the be allowed to recover damages therefor. The ordinance from an exercise of the police powposition, upon first impression, seems plausible, but when carefully considered is clearly uner into a mere exercise of the contractual tenable. The relations of the parties to the function of the city. The acceptance was city are entirely different. That which called but an agreement to conform to the police for the exercise of the police power by the mu- mandate of the city in a specified manner nicipality was the operation of the railroad in running its trains across the street. Neither agreeable to both parties-a mere acquiesthe location nor use of the plaintiff's property cence in the exercise of the city's police powendangered the public health or safety, and iter by the railway company. True, the city must be admitted that if the city had attempt in requiring the separation of grades exered to interfere with that property by obstructing his access thereto under any claim of a cised its police power in the public interest. police regulation, it would have been a flagrant Spokane v. Thompson, supra. The public welabuse of the police power and no defense what- fare is indeed the very basis of the police ever to an action for the resulting damages. The plaintiff bears no relation to the railroad power. But when the requirement was once company. He had nothing to do with the op- made, the duty of performance was that of eration of its road. He makes no claim in his the railway company. That duty was tracedeclaration on account of the elevation of the able to the city's command, not to a mere tracks. His cause of action is against the city for so changing the grade of the street as to contractual assumption by the railway comdamage his property." pany. In doing the work it was doing its own work, not that of the city. In fact the larger part was the modification of its own right of way and roadbed. We are clear that the statute requiring the taking of a bond · from the contractor as security for labor, etc., on municipal contracts for public work (Rem. Code, § 1159 et seq.), has no application to such a case as this. The demurrer company was liable for the labor and material furnished by appellants as subcontractors in the prosecution of the work. It is asserted that the property of an operating railroad company cannot be subjected to liens for labor or material furnished in alof the city was properly sustained.

Whatever may be said of the ordinance

there discussed or of that court's views as to the nature of the power involved, our own decisions are controlling here. They distinctly hold that the power to compel grade separation is an incident of the general police power expressly conferred by the Constitution and statutes upon cities of the first class. State Constitution, §§ 10, 11, art. 11; Rem. Code, § 7507, subds. 7, 8, and 9. In Spokane v. Spokane & I. E. R. Co., 75 Wash. 651, 656, 135 Pac. 636, 638, we said:

"The power to be exercised in providing for a separation of grades, as here attempted, is not only attributable to the general police power vested in the city in legislating for the welfare and safety of its citizens in dealing with an admittedly dangerous situation, but is referable to another power-that of providing for changes in the grades of streets and locating railroad and street railway lines thereon, providing for changes of grade in such locations and other like powers as found in subdivisions 7, 8, and 9 of section 7507, Rem. & Bal. Code (P. C. 77, § 83)."

In Spokane v. Thompson, 69 Wash. 650, 657, 126 Pac. 47, 49, we said:

"It is also well established that a city in the exercise of its police power over the streets has authority to change the grade of a street to avoid a dangerous railroad crossing, and that such a change is for the benefit of the public, and is a public use."

[2] It is next contended that the railway teration or repair; that this work was a work of alteration or repair; that, therefore, the railway company was liable because it failed to take the bond required by statute (Rem. Code, § 1129) to respond in lieu of such liens. Again the premises are unsound and the conclusion correspondingly faulty. The decisions cited by the appellants in this connection go no further than to hold that the lien cannot be enforced by sale of property essential to the operation and maintenance of the road for the public purposes for which it was established. Buncombe Co. Com'rs v. Tommey, 115 U. S. 122, 5 Sup. Ct. 626, 1186, 29 L. Ed. 305; Connor v. Tenn.

See, also, Detamore v. Hindley et al., 83 Cent. Ry. Co., 109 Fed. 931, 48 C. C. A. Wash. 322, 145 Pac. 462.

In fact the Supreme Court of Illinois in a more recent case than that above cited has in

730, 54 L. R. A. 687; Pittsburg Testing Lab. v. Milwaukee E. R. & L. Co., 110 Wis. 633, 86 N. W. 592, 84 Am. St. Rep. 948. Our stat

cases. Rem. Code, § 1129, after providing for the lien in favor of every person performing labor, etc., in the construction, alteration, or repair of any railroad, makes the contractor, subcontractor, architect, builder, or person having charge of the work the agent of the owner for the purpose of the establishment of the lien, provides that the railroad company shall exact a bond from the contractor to respond in lieu of lien, and declares:

"And if any such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor."

the estimates due to Hoy under its contract with Hoy. But appellants contend that there was a specific agreement on the part of both the railway company and Hoy to pay for the work done by appellants, and to guarantee future payments. As to whether there was such an agreement, the evidence was voluminous and extremely conflicting. We cannot discuss it in detail within the reasonable limits of an opinion. An attentive examination of the evidence, however, convinces us that there was nothing more than an agreement by the railway company's attorney and assistant engineer in charge of the work for the railway company to adspecific pay roll, which was done, and to vance money with Hoy's consent to meet a charge the amount to Hoy, who, in turn, charged it to Parker, Moran & Parker, and a ments on estimates through Hoy and on orfurther promise to arrange for other payders of Parker, Moran & Parker. The evidence is far from convincing that there was any agreement on the part of the railway company or any one in its behalf to pay future payments, except on such estimates and ture estimates, or to guarantee or make fuorders. It appears that this was done through an arrangement with Hoy until Par

[3] It is next contended that the evidence

A careful consideration of the evi

We have held that the bond when taken and properly filed dispenses with the agency necessary to create the lien. Laidlaw v. Portland, V. & Y. Ry. Co., 42 Wash. 292, 84 Pac. 855; Du Pont de Nemours Powder Co. v. Nat. Surety Co., 94 Wash. 461, 162 Pac. 866. It is the agency declared by the statute which creates the privity between the railroad company and the lien claimant which sustains the lien. The failure to take the bond required by the statute creates a statutory liability enforceable in personam against the railroad company, but this only when a lien has been filed invoking the statutory agency in manner and time as required by the statute. The filing of the stat-ker, Moran & Parker refused further orders. utory lien notice furnishes the privity be shows that Hoy in consideration that appeltween the company and the lien claimant, lants continue the work agreed to pay for which would not otherwise exist, and without which a personal liability in the absence such work if Parker, Moran & Parker failed of the bond could not be maintained. This to do so. liability is but a statutory substitute for the dence touching this question impels us to the lien in rem against the specific railroad conclusion that Dunnigan, Hoy's purchasing property. It seems too plain for argument agent, and Holman, Hoy's superintendent, that, though the filing of the lien is not nec- promised no more than to get Moran to sign essary where the bond is taken dispensing written orders on Hoy from month to month, with the statutory agency, that if the bond which would justify Hoy in paying to appelbe not taken the liability against the rail- lants the money coming due on monthly esroad company, whether asserted in rem or timates to Parker, Moran & Parker. This, in personam, cannot be maintained without as before stated, it appears was done on the the filing of the lien creating the agency and next two estimates; one for $6,800, the othsupplying the privity necessary to the main-er for $8,000, and the receipts for such paytenance of the liability. Indeed, the creation ments bear the approval of Parker, Moran of the privity by notice of lien would seem & Parker. Appellants filed no lien against to be more imperative where a personal lia- the railway company which would have justibility is asserted than in case of a lien in fied Hoy or the railway company in making rem. In the case before us appellants were such payments without an order from Parsubcontractors of a subcontractor of the ker, Moran & Parker, nor did appellants garprincipal or general contractor. There was nishee Hoy for any amount claimed to be no privity of contract between the railway due from him to Parker, Moran & Parker company and the appellants. That lack of which would have justified Hoy in withholdprivity was not supplied or overcome in the ing pay to the latter. Moreover, the alleged only way in which it could be supplied or promise, even if the evidence justified a findovercome in the absence of the lieu bond; ing that it was made just as claimed by apviz. by filing the notice of lien as required by pellants, being verbal, would have been void Rem. Code, § 1134. It follows that unless under the statute of frauds. Taken in the there was some valid agreement on the part light most favorable to appellants, the promof the railway company to pay or a guaranty ise claimed was no more than that Hoy and of payment for appellants' labor, they can- the railway company would see that appelnot recover as against the railway company. lants were paid, which, as this court has freIn the absence of such an agreement, the quently held, was not sufficient to create an railway company was under no duty to pay original or collateral undertaking on the part appellants or to refuse to pay Hoy any part of of the railway company or of Hoy. Camp

bell v. Weston Basket & Barrel Co., 871 services in making sales of shares of its capiWash. 73, 151 Pac. 103; Goldie-Klenert Dis-tal stock in pursuance of a contract entered trib. Co. v. Bothwell, 67 Wash. 264, 121 Pac. into with him. Trial in the superior court 60, Ann. Cas. 1913D, 849; Pressentin v. Hawkeye Timber Co., 77 Wash. 388, 137 Pac. 999; Bresler v. Pendell, 12 Mich. 224.

[4] Finally, appellants argue that the city, the railway company and Hoy should all be held liable in equity to pay appellants the reasonable value of their work, because it contributed to the desired result, so that all of these defendants received its benefit. The same argument might be made in every case where a laborer, materialman, or subcontractor has lost his right to a lien by failure to file the lien notice as required by law. We know of no principle of equity which would sustain a judgment in such a case merely because the owner of the property had received the benefit, there being no privity either of contract or in law between the party sought to be charged and the party claiming the relief. Both Hoy and the railway company have paid to the persons to whom they were bound by contract to pay all they agreed to pay.

One other matter requires notice. The court found that the amounts due from Parker, Moran & Parker to appellants became due on November 1, 1915, but allowed interest on those amounts only from the date of the judgment. This was apparently an oversight. The judgment should be modified so as to allow interest on the sums found due from November 1, 1915. In other respects the judgment is affirmed.

WEBSTER, MAIN, PARKER, and FUL LERTON, JJ., concur.

(102 Wash. 178)

COURTIS v. FREEBURN COAL CO.
(No. 14403.)

Supreme Court of Washington. May 7, 1918.)
APPEAL AND ERROR 1011(1) REVIEW-
TRIAL BY COURT-PREPONDERANCE OF Ev-

IDENCE.

Where it cannot be said that the evidence does not preponderate in support of the trial court's decision based upon conflicting evidence, the judgment will not be set aside. Department 2. Appeal from Court, Spokane County; E. H. Judge.

Superior Sullivan, Action by T. K. Courtis against the Freeburn Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Robertson & Miller, of Spokane, for appellant. Nuzum, Clark & Nuzum and Geo. H. Armitage, all of Spokane, for respondent.

PARKER, J. The plaintiff, Courtis, commenced this action seeking recovery from the defendant company of compensation claimed to have been earned by him in the form of commissions agreed to be paid to him for his

for Spokane county, sitting without a jury, resulted in findings and judgment in favor of the plaintiff from which the defendant has appealed to this court.

The contentions here made in appellant's behalf have to do only with questions of fact (1) as to the making of the contract; and (2) as to whether or not respondent's efforts were the effectual cause of the sales which were proven to have been made. Both of these questions are to be determined from evidence, which was almost wholly oral. We have read all the evidence with care. It is in serious conflict in so far as the testimony of interested witnesses is concerned. There was, however, testimony given by one or two disinterested witnesses throwing some light upon both of these questions, which we think warranted the trial court in rendering the decision it did. We cannot say that the evidence does not preponderate in support of the trial court's decision. To review the evidence here would be but to discuss it with a view of determining the comparative credibility of the witnesses. This we deem unnecessary. It is not contended that the contract was illegal. Apparently the shares of stock were held by the company under such conditions that it had a lawful right to secure their sale in this manner.

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A notice that a party would appeal from an order denying his motion for a new trial not sufficient notice of an appeal from the "and all proceedings had in said cause" was judgment or other prior order, under Rem. Code 1915, § 1719, providing that the appellant in his notice of appeal shall designate with reasonable certainty from what judgment or orders the appeal is taken. 3. APPEAL AND ERROR 422 APPEAL AMENDMENT. that the Supreme Court shall upon terms alUnder Rem. Code 1915, § 1734, providing

NOTICE OF

low amendments in matters of form, a notice of appeal from an order denying a new trial "and all proceedings had in said cause" was deficient in substance, and could not be amended to make it notice of appeal from the judgment, in view of section 1719, providing that orders or judgments appealed from should be

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