and agent, especially one who has the conduct and control of the business, as it could were he the proprietor of the business in which he engaged." See, further, Siegel v. Marcus, 18 N. D. 214, 119 N. W. 358, 20 L. R. A. (N. S.) 769; Meyer v. Labau, 51 La. Ann. 1726, 26 South. 463; Finger v. Hahn, 42 N. J. Eq. 606, 8 Atl. 654; Thompson v. Andrus, 73 Mich. 551, 41 N. W. 683; Emery v. Bradley, 88 Me. 357, 34 Atl. 167; Wilson v. Delaney, 137 Iowa, 636, 113 N. W. 842; Geiger v. Cawley, 146 Mich. 550, 109 N. W. 1064.

The case of Haley Grocery Co. v. Haley, 8 Wash. 75, 35 Pac. 595, is not contrary to the position here taken. In that case the agreement between tue parties was set forth with particularity, and, as we said in Canady v. Knox, 48 Wash. 685, 94 Pac. 652, "The only purpose was to prevent him [the party bound] from becoming personally interested in the profits of a rival business, either directly or indirectly." It is not so with the contract in the case at bar. The purpose of this agreement was to prevent the vendor exerting his influence and popularity in favor of a rival business, and this the facts clearly show he is proposing to do.

The judgment is reversed and the cause remanded, with instructions to enter a judgment enjoining the respondent from engaging in any manner in the butcher business within the area and period of time limited in the contract of sale set out in the complaint.

4. APPEAL AND ERROR (§ 173*)-PRESENTATION OF QUESTIONS BELOW-FORECLOSURE— DEFECTS IN LIEN.

Defects in a mechanic's lien which might have been amended are not available for the first time on appeal from a judgment foreclosing a lien.

Error, Cent. Dig. §§ 1079-1120; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and

173.*]

5. SUBROGATION (§ 17*)—JUNIOR MORTGAGEE

PAYING PRIOR MORTGAGE.

On foreclosure of a mortgage, it was not error to allow plaintiff to be subrogated to the rights of a first mortgagee on payment into court of the amount due on the first mortgage.

[Ed. Note. For other cases, see Subrogation, Cent. Dig. §§ 44-46; Dec. Dig. § 17.*] 6. MORTGAGES (§ 123*)-LIEN FOR TAXES PAID.

allowed taxes paid by him pursuant to a proOn foreclosure, a mortgagee was properly vision in the mortgage that he might do so and have a lien for such payment.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 242; Dec. Dig. § 123.*] 7. MORTGAGES (8 581*)-MECHANICS' LIENS (8 310*)-FEES ALLOWANCE.

On foreclosure of a mortgage and a mechanic's lien in one suit, separate fees for the two claims were properly allowed; the mortgage providing for a fee on foreclosure.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1669-1679; Dec. Dig. § 581;* Dig. § 310.*] Mechanics' Liens, Cent. Dig. §§ 651-654; Dec.

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam, Judge. Action by William James against the Brainard-Jackson & Company and others. From the decree, defendants appeal. Af

(64 Wash. 175)

W. C. Mitchell, for appellants. Charles E. Congleton, for respondent.

FULLERTON, J. On June 28, 1907, Wil

et al.

(Supreme Court of Washington.

1911.)

Under a provision authorizing a mortgagee to declare the whole debt due on nonpayment of the interest, to entitle him to exercise the option, it is enough that he give the maker of the notes an opportunity to pay when due; he not being bound to make formal demand.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1207-1209; Dec. Dig. § 401.*] 2. ACTION (§ 48*)-JOINDER-SUITS ON SEPARATE LIENS.

TIES.

A complaint in a mortgage foreclosure need not join a former owner of the land who has parted with all his interest, though defendants desired relief against him.

the respondent in this action, purchased the Christiansen mortgage and the mechanic's lien, taking due and formal assignments of the same. He thereupon tendered to L. Mitchell the principal and interest due upon the first mortgage, paid the delinquent and due taxes and assessments levied upon the property by the public authorities, and, on default in the payment of the first installment due upon the Christiansen mortgage, brought the present action to foreclose the same, to gether with the mechanic's lien, setting up also the amount of taxes and assessments he had paid, and prayed that the amount thereof be declared a lien upon the land, and that the same be adjudged to him in the decree of foreclosure. The plaintiff made parties defendant to the foreclosure action W. C. Mitchell and his wife, Elvira C. Mitchell, and L. Mitchell. W. C. Mitchell and L. Mitchell answered, putting in issue the material allegations of the complaint, and setting out affirmatively the mortgage owned by L. Mitchell, praying that her mortgage be declared a first lien upon the mortgaged property and foreclosure thereof entered, and that the plaintiff take nothing by his action. On the trial the court held each of the several liens to be valid liens upon the property, that the liens of L. Mitchell were first and superior to the liens of the plaintiff, and entered a decree foreclosing the several liens, and directing a sale of the property, directing, further, that the lien of L. Mitchell be first paid out of proceeds of the sale, or, in case the plaintiff paid the amount thereof into court, that plaintiff have a lien on the premises to secure the amount thereof and a sale of the property to satisfy the same, together with the several liens held in his own right. From the decree the several defendants appealed. They gave no super sedeas bond and subsequent to the appeal, as is shown by a supplemental record, the plaintiff paid into the registry of the court the amount found due on the prior mortgage, and the same was withdrawn by the mortgagee, L. Mitchell. It has been made to appear, also, that W. C. Mitchell died subsequent to taking the appeal, and that his wife Elvira C. Mitchell was by order of this court substituted as appellant in his stead. [1] The appellants attack the sufficiency of the complaint. It is contended, first, that the action in so far as it related to the mortgage set forth therein was prematurely brought; second, that two or more causes of action were improperly united; and, third, that there is a defect of parties defendant. Neither of these objections is well taken. An installment of interest was overdue on the mortgage, and by the express terms thereof the holder was for that reason empowered to declare the whole sum due and payable. To entitle him to exercise the option, it is enough that he give the maker of the notes an opportunity to pay when due.

that he was the holder of the note, and that the interest could be paid to him at a place stated in the city where the note was payable. He was not obligated to go to the maker and make a formal demand, and such is not the holding in the case of Bardsley v. Washington Mill Co., 54 Wash. 553, 103 Pac. 822, 132 Am. St. Rep. 1133. In that case the maker was able and willing to pay the interest, but no opportunity was given him to do so at the place when the note was payable; it having been assigned by the payee and held by a bank in a state other than the one in which the note was payable. It was held that the payor was not obligated to tender payment outside of the place when the note was payable.

[2] In support of the second objection, the appellants contend that the foreclosure of two or more liens cannot be united in one suit, and argue that each separate lien whether owned by one individual or more than one must be the subject of a separate action. Doubtless this would be true were the liens upon different parcels of property, but, where the several liens are all on the same parcel, they can properly be foreclosed in one suit. Indeed, in most instances this must necessarily be the case; as, for example, where there is a dispute as to the priority of the several liens.

[3] The third objection is based on the fact that Willard P. Alward was not made a party defendant to the suit. But Alward was neither a necessary nor proper party. He was in no way obligated to the plaintiff, nor could the plaintiff obtain relief against him in any manner since he had parted with all his interest in the subject-matter of the suit prior to the time of its commencement. The appellants say, however, that they themselves might want some relief against him, since they held his promissory note. If this be true, it might warrant the defendants in bringing him in, but it is no cause for holding the complaint insufficient.

[4] Certain objections are made to the lien, and are suggested in this court apparently for the first time. The defects conceding them material are all amendable under the statute, and doubtless would have been corrected had they been pointed out to the trial court. Since this was not done, we will treat the lien as sufficient.

[5] It is next contended that the court erred in allowing the plaintiff to be subrogated to the rights of the mortgagee on payment into court of the amount due on the first mortgage. But there was no error in this. This mortgage was a lien on the land superior to any of the liens of the plaintiff. It may have been to the advantage of the parties to the suit to have one final decree which would be under the control of a single party. This evidently was the purpose of the order of the court, and the order was well within its equity powers.

in allowing a recovery for the taxes paid by the plaintiff, but this was permissible under the express terms of his mortgage. That instrument provided that he might pay the taxes on the land as they became due, and have a lien on the property for such payment. This was a proper subject of contract between the mortgagor and mortgagee, and any subsequent purchaser or incumbrancer of the property took with notice thereof and subject thereto.

[7] Finally, it is urged that the court erred in allowing two attorney's fees. It appears that the mortgage provided for an attorney fee of $60 on foreclosure, and that the court allowed this sum for foreclosing the mortgage and $50 additional for foreclosing the mechanic's lien. These fees were reasonable for the services rendered, and this is the final test regardless of the manner in which the fee is apportioned.

There are other assignments of error, but we do not feel that they merit special consideration.

The judgment is affirmed.

3. MASTER AND SERVANT (§ 92*)-INJURY TO

SERVANT-FAILURE OF MASTER TO CONVEY SERVANT TO HOSPITAL-LIABILITY.

Where a lumber company withheld from its employés a fee for the maintenance of a hospital, and maintained a logging road with engines and equipment at hand for conveying a servant injured while in the woods to the hospital, and the company knowingly left an injured servant lying prostrated for 24 hours before conveying him to the hospital, thereby aggravating the injuries and suffering, it was liable for such increased damages, because it was impliedly liable to furnish free transportation to the hospital.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 143; Dec. Dig. § 92.*] 4. DAMAGES (8 62*)-REDUCTION OF Loss.

Where a servant employed by a lumber company to cut timber in the woods sustained a personal injury while in the woods, and discovered that the company would not perform its duty to convey him to a hospital maintained by wages retained by the company, the servant, physically and mentally able, must make reasonable efforts to reach the hospital, or to other

(64 Wash. 224)

HARDING v. OSTRANDER RY. & TIMBER CO.

(Supreme Court of Washington. July 20, 1911.) 1. MASTER AND SERVANT (§ 258*)-INJURY TO SERVANT-INCOMPETENCY OF FELLOW SERVANT-LIABILITY OF MASTER.

Under the rule that a servant, injured through the incompetency of a fellow servant, may recover from the master, who knew of the incompetency of the fellow servant, where the servant did not know thereof, a complaint, in an action for injuries to a servant, which alleges that the servant's assistant was incompetent by reason of deafness-a fact known to the master, but unknown to the servant-that the servant received the injury by stopping to give a second warning to his assistant, and to remove an article which it was the duty of the assistant to protect, states a cause of action. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 835; Dec. Dig. § 258.*] 2. MASTER AND SERVANT (§ 261*)-INJURY TO SERVANT CONTRIBUTORY NEGLIGENCE PLEADING.

A complaint, in an action for injuries to a servant employed as head timber faller, which alleges that his assistant was incompetent; that the master knew of the incompetency; that the servant did not know thereof; that it was a part of the servant's duties to warn his assistant of danger from falling trees; that, while the servant and his assistant were falling, a tree, the servant notified the assistant of its falling in time for both to escape danger; that the assistant failed to hear the warning; that the servant was compelled to remain in the place of danger and again notify the assistant of danger, and was forced to discharge duties imposed on the assistant to protect property; and that while doing so he was injured-does not show the servant's guilt of contributory negligence, within the rule that his duty to protect

mize the injuries; and where he failed to do so the company was not liable for the damages occasioned thereby.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 119-132; Dec. Dig. § 62.*] 5. ACTION (§ 27*)-CONTRACT OR TORT.

A complaint, in an action for injuries to a servant, which counts on a recovery for injuries received through an incompetent fellow servant, and for the failure of the master to furnish to the servant transportation to a hospital maintained by wages withheld from the servants, states a cause of action springing from contractual relations based on the breach of the master to employ competent fellow servants, and of the obligation to furnish injured serv ants with transportation to the hospital.

[Ed. Note. For other cases, see Action, Cent. Dig. §§ 177-195; Dec. Dig. § 27.*] 6. ACTION (§ 48*)-INJURY TO SERVANT-COMPLAINT JOINDER OF CAUSES OF ACTION.

authorizing the uniting of several causes of acUnder Rem. & Bal. Code, § 296, subd. 8, tion arising out of the same transaction, a cause of action for injuries to a servant, through the incompetency of a fellow servant, and a cause of action for the failure of the master to promptly transport the injured servant to a hospital maintained from wages withheld from servants, are properly joined, because the injuries, through the incompetent servant and the injuries from the failure to treat such injuries with reasonable promptness, cannot be separated, but they arise out of the same trans

action.

Action by Edwin D. Harding against the Ostrander Railway & Timber Company. From a judgment of dismissal, plaintiff appeals. Reversed.

B. B. Adams and Isham N. Smith, for appellant. Wilbur & Spencer and Joseph O'Neil, for respondent.

GOSE, J. The plaintiff has appealed from an order sustaining a demurrer to the amended complaint and dismissing the action.

The complaint is of too great length to be set forth in full, but in substance it alleges that, at the time the appellant sustained the injuries of which he complains, he was an able-bodied man, in the employ of respondent as a head timber faller; that he had been in its employ for a period of 11 months; that during that time the respondent had an established rule governing its employés, by which it exacted and withheld from their wages the sum of $1 per month, which it used in the maintenance of a hospital for the care and treatment of its injured employés; that he had as an assistant one Schultz, who was extremely hard of hearing, and therefore incompetent to discharge his duties; that such infirmity and incompetency were known to the respondent and unknown to the appellant; that it was a part of the appellant's duties as head faller to warn his assistant of danger from falling trees; that while the appellant and Schultz were falling a large tree the former notified the latter of its falling in time for both to have escaped danger; and that "at the time and place aforesaid, and after this plaintiff had notified the said John Schultz in time to have permitted both plaintiff and the said John Schultz to have escaped from danger of said falling tree, the said John Schultz, owing to his deafness, failed to hear the warning and failed to escape or get out of the reach of danger, and plaintiff was thereby compelled to remain at the place of danger, and further and again notify John Schultz the second time of the danger of the falling tree, and was further forced to discharge duties which were the duties of the said John Schultz, to wit, that it was part of the duty of the said John Schultz to care for a large crosscut saw, which plaintiff and John Schultz used in the business of falling trees, and that it was further the duty of John Schultz, upon receiving a warning from this plaintiff, to take said saw out of the place of danger, and to immediately act in response to notifications of warnings for danger; that by reason of the said delay on the part of said John Schultz this plaintiff was compelled to and did care for and remove the crosscut to prevent additional danger, and by reason of the delay caused by the incompetency of the said John Schultz the tree upon which

falling therefrom the said large limb fell upon and against plaintiff before plaintiff had time to attend to his duties, above stated, and remove himself from the place of danger; and that by such falling limb hitting plaintiff's body plaintiff was thereby prostrated and violently stunned, and his left arm and shoulder were bruised, maimed, and crushed, and the bones of his left arm were lacerated."

It is further alleged that, immediately after the injury, the respondent was notified thereof by notice to its secretary, who had charge and control of its business, and whose duty it was, among other things, to send engines or trains, or means of transportation, into the woods to receive any of its injured servants and convey them to its hospital; that, having at hand a logging road with rolling stock and engine "fired up," which it could have sent to the immediate relief of the appellant, it disregarded the notice, and failed, neglected, and refused to send means of transportation to him to convey him to the hospital, for the period of one day; that, with knowledge of his condition, it permitted him to remain prostrated and without medical aid during that time; and that by reason of the delay in conveying him to the hospital for treatment his injured arm became so swollen that, when he was taken to the hospital on the following day, it was impossible for the attending physician to render him any service for a period of about six days. It is further alleged that, by reason of the several acts of the respondent, the appellant suffered, and will continue to suffer, grievous bodily pain and mental anguish; that he is broken in health and body; and that his arm is atrophied and withered, so as to prevent him from working at any trade or business, to his damage in the sum of $67,094.

The demurrer was interposed upon two grounds: (1) That several causes of action have been improperly united, and (2) that the complaint does not state facts sufficient to constitute a cause of action. The order sustaining the demurrer is silent as to whether the court sustained it upon one or both of the grounds. The order of dismissal was entered because the appellant declined to plead further.

[1] We will first consider the second ground of the demurrer. Briefly restated, the complaint alleges that the appellant's assistant was incompetent by reason of his deafness-a fact known to the respondent and unknown to the appellant; that the appellant received the injury by stopping to give a second warning to his assistant, and to remove a crosscut saw which it was the duty of the assistant to protect. It is well settled that, in proper cases, the servant may recover damages from the master, where ne