State, Kester v. (Okl. Cr. App.) State, Ledgerwood v. (Okl. Cr. App.) State, Loyd v. (Okl. Cr. App.). State, Meek v. (Okl. Cr. App.). State, Mench v. (Okl. Cr. App.). State, Moore v. (Okl. Cr. App.). State v. Morgan (Okl. Cr. App.). State, Morgan v. (Okl. Cr. App.). State, Nelson v. (Okl. Cr. App.). State, Russell v. (Wyo.).. 451 Trimble v. Seattle (Wash.). 647 State v. Schneck (Kan.). 823 Truax, Bardsley v (Wash.) .1075 State, Schriebar v. Okl. Cr. App.). 348 State, Schriebar v. (Okl. Cr. App.). 349 Tunberg, Columbia College of Music School of Dramatic Art 7. (Wash.). 922 489 Ukiah Water & Improvement Co., Luitweil- er Pumping Engine Co. v. (Cal. App.)... 707 Ukiah Water & Improvement Co., Luitweil- State, Vines v. (Wyo.).. 1013 State v. Wildes (Nev.). State, Wychoff v. (Okl. Cr. App.). 355 Van Winkle Gin & Machine Co. v. Brooks Stephenson, King v. (Okl.).. Stevens, State v. (Nev.).. (Wash.) Stevens, State v. (Nev.). 605 Victor Land Co. v. Winters (Or.) .1070 Stevenson, San Joaquin & K. R. Canal & Village of Mountain Home, Corker v. (Ida- .... Stewart, State v. (Kan.)... 489 Strait v. Wilkins (Cal. App.). Strangeway. Kobayashi v. (Wash.). Stuard v. State (Okl. Cr. App.). Stubblefield, Weiss v. (Kan.). Sunrise Land Co. v. Root (Cal.). 72 Walton Lumber Co. v. Cox (Okl.). 798 683 312 Co. (Okl.) 786 Williams, Templeton v. (Or.). 1062 459 Williamsburg City Fire Ins. Co., Jones v. (Kan.) 484 Walville Lumber Co., Dumas v. (Wash.)..1091 Williams v. Norvell Shapleigh Hardware Washington Portland Cement Co., Pennsylvania Casualty Co. v. (Wash.). 284 Williamson v. Snohomish County (Wash.) 675 .1033 Wilson v. Board of Com'rs of Edwards 205 County (Kan.) Wayne v. Alspach (Idaho). Weiss v. Stubblefield (Kan.). ....... Welch, Edwards v. (Okl.).. Welch v. Ladd (Okl.).. 573 Wilson, Peck v. (Utah). West & Wheeler, Thomas v. (Wash.), .1074 564 Winchester v. North British & Mercantile Worswick Street Pav. Co., McQuiddy v. Wright, Ex parte (Okl. Cr. App.) 614 920 .1135 63 670 488 390 .1070 801 101 67 .1113 949 Wey v. City Bank (Okl.). 943 Wychoff v. State (Okl. Cr. App.). 355 616 Wyoming Cent. Irr. Co. v. Farlow (Wyo.) 1021 White, Galvin v. (Cal.). 42 White, Michel v. (Wash.). 860 Whitely v. St. Louis, E. R. & W. R. Co. (Okl.) Whitman v. Atchison, T. & S. F. Young's Estate, In re (Or.). 95 (Kan.) 234 Young's Estate, In re (Or.).. .1060 Whittier, Hall v. (Idaho). ..1031 Wichita R. & Light Co., Finger v. (Kan.).. 366 Yuba Consol. Goldfields v. Hilton (Cal. 712 Wildes, State v. (Nev.). 595 Yuba Consol. Goldfields v. Hilton (Cal.).. 715 268 REHEARINGS DENIED [Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.] American Electric Tel. Co. v. Emporia Tel. Co. (Kan.) 109 P. 780. Carter v. Mosier (Kan.) 114 P. 226. State v. Murray (Kan.) 110 P. 103. THE PACIFIC REPORTER VOLUME 116 (63 Wash. 662) SEATTLE LUMBER CO. v. CUTLER et al. (Supreme Court of Washington. June 23, 1911.) 1. TRIAL (8 388*)-FINDINGS OF FACT-NECES SITY. A decree rendered without the court making findings of fact, but on a theory warranted by the evidence, though conflicting, will not be disturbed on appeal. PARKER, J. This action was originally commenced to foreclose a number of mechanics' liens against an apartment house in Seattle, now owned by Fred G. Cutler and wife. The only claim of lien here involved is that of L. A. Borde, who furnished the heating plant and plumbing for the building. This controversy arises upon the cross-complaint of Borde, setting up his claim of lien and asking foreclosure thereof, and the answer thereto of Cutler and wife, the pres [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 908-915; Dec. Dig. § 388.*] 2. RELEASE (§ 12*)-RELEASE-EFFECT. A release executed by a lien claimant with-ent owners of the property. A trial resulted out any consideration whereby ho released the in a decree establishing and foreclosing this owner from all obligations on unt of the lien among others. Cutler and wife have apcontract for the work perfor by the lien pealed from so much of the decree as estabclaimant, does not, as between te lien claimant lishes and forecloses Borde's lien. and the owner, affect the liability of the owner. [Ed. Note. For other cases, see Release, Cent. Dig. §§ 18-20; Dec. Dig. § 12.*] 3. MECHANICS' LIENS (§ 216*)-RIGHT TO ENFORCE ESTOPPEL. A contractor installing a heating plant and plumbing in a building under a contract with the legal owner executed a release, discharging the owner from liability for the labor performed and materials furnished under the contract to enable the owner to sell the property. The release was not used for that purpose, and the purchaser never heard of the release until long after the purchase. Held, that the contractor was not estopped from enforcing his lien as against the purchaser. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 400-402; Dec. Dig. § 216.*] 4. MECHANICS' LIENS (§ 209*) - RELEASE CONSTRUCTION. A release by a lienor for work done and materials furnished under a contract with the owner from all obligations on account of the contract, and on account of labor performed or material furnished, does not evidence an intent to release the lien for the work and materials. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 383; Dec. Dig. § 209.*] Department 1. Appeal from Superior Court, King County; A. W. Frater, Judge. Action by the Seattle Lumber Company against Fred G. Cutler and wife and L. A. Borde, in which L. A. Borde set up a claim of lien. There was a judgment foreclosing the lien of L. A. Borde, and defendants Fred G. Cutler and wife appeal. Affirmed. Alexander & Bundy and Milo A. Root, for appellants. Herchmer Johnston and E. N. Sears, for respondent. Prior to November 20, 1909, the legal title to the property sought to be charged with this lien was in C. J. Sullivan and wife; one H. W. Fisher Laving some equitable title therein. In pursuance of a contract entered into in May, 1909, with Sullivan and Fisher, respondent Borde furnished and installed the heating plant and plumbing in the building, which was completed before November 20, 1909. Prior to that date appellant Fred G. Cutler had negotiations with Fisher, resulting in an agreement for the purchase of the property from Sullivan and Fisher. When it came to the consummation of this purchase, some question arose as to the existence of the lien of respondent against the property by reason of his furnishing the heating plant and plumbing in the construction of the building. Appellant became satisfied from information then furnished by Fisher in the form of purported receipt in full from respondent, and also from a telephone communication which he claims he then had with respondent, that respondent's claim was fully satisfied, and on November 20th completed the purchase of the property and received the deed therefor. The evidence we think clearly shows that there was actually due to respondent at this time up. on this contract for the heating plant and plumbing the sum of $3,041.05. The decree was rendered in his favor for that sum with interest. [1] The principal contention of counsel for appellants is that respondent is estopped For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 116 P.-1 as against respondent's right to his lien. Washburn v. Kahler, 97 Cal. 58, 31 Pac. 741. from setting up his claim of lien against | paper was never used for that purpose; for them, because of his placing in Fisher's it was beyond question that neither Cutler hands the receipt acknowledging full pay- nor his wife ever heard of this paper until ment of his claim, and also acknowledging about the time of the trial of this cause, the genuineness of such receipt in the tele-long after they had purchased the property. phone communication with appellant just They were, of course, in no way influenced before the purchase of the property by appel- by it at the time of the purchase. Hence lants, knowing that they were about to pur- it did not work an estoppel in their favor chase it. This contention involves only questions of fact touching the genuineness of the purported receipt produced by Fisher, [4] Counsel for appellants argue that this and the occurring of the telephone conversa- paper is in effect a release of personal liation between Cutler and respondent. The bility of Sullivan and wife, and hence releastrial judge did not make formal findings of es the lien. We have noticed that it being fact, but it is clear from his remarks at the without consideration did not result in reconclusion of the trial that he believed the leasing Sullivan and wife of their obligation receipt to be a forgery, and that, if such a to respondent, and we think its terms are not telephone conversation occurred as testified sufficiently clear in evidencing an intent to to by Cutler, it was not with respondent, release the lien as to make it effective in though Cutler may have thought he was then that regard, aside from the want of considtalking to respondent over the telephone. It eration. 27 Cyc. 262; Holm v. Chicago, Milwas evidently upon this theory that the de-waukee & P. S. Ry. Co., 59 Wash. 293, 298. cree was rendered in respondent's favor. A 109 Pac. 799; Pacific Lumber & Timber Co. careful reading of all of the evidence con- v. Dailey et al., 111 Pac. 869. vinces us that the trial court was fully warranted in taking this view of the purported receipt and telephone conversation. We will not attempt to review the evidence in detail touching these matters, since we see no useful purpose to be served thereby. It, of course, follows that respondent was in no way bound by the purported receipt and telephone conversation, and therefore his lien was not affected thereby. We are of the opinion that the trial court correctly determined the rights of the parties. The judgment is affirmed. DUNBAR, C. J., and GOSE, MOUNT, and FULLERTON, JJ., concur. POLAND v. POLAND. (63 Wash. 597) (Supreme Court of Washington. June 22, 1911.) INGS-STATUTES. It is further contended by counsel for appellants that respondent cannot maintain his lien by this action, because of a certain written release executed to Sullivan and wife by 1. CONTEMPT (§§ 40, 61*)-CRIMINAL PROCEEDhim, which, after referring to his contract Under Rem. & Bal. Code, § 1054, providing and describing the property, recites: "Where- that in proceedings for contempt the state is as, the said Celestine J. Sullivan and wife plaintiff, a proceeding for contempt is in the are about to sell and transfer the said prop-only matter to be inquired into is the connature of a criminal proceeding in which the erty, and for that purpose desire a release temptuous act. from the undersigned of all liability and obligations upon said contract: Now, therefore, the undersigned, L. A. Borde, does hereby in consideration of the premises release and forever discharge the said Celestine J. Sullivan and his wife, Evelyn Sullivan, from any and all liability and obligation of every kind whatsoever on account of said contract, and on account of any labor performed or materials furnished on account of said building by the undersigned. Dated this 20th day of November, 1909. L A. Borde." [2] It is quite clear from the evidence that this paper was executed without any consideration whatever passing from Sullivan and wife to Borde. Hence, as between him and the Sullivans, we are unable to see that it has any validity. [3] Assuming that this paper was executed to enable the Sullivans, who had the legal title to the property, to show their purchaser that the lien of respondent had been satisfied, we are then met with the fact the [Ed. Note.-For other cases, see Contempt, Cent. Dig. §§ 122-124, 192; Dec. Dig. §§ 40, 61.*] 2. DIVORCE (§ 311*)-DECREE OF ALIMONYENFORCEMENT-NATURE OF PROCEEDINGS. award for the support of children of divorced A proceeding to compel the payment of an parents is a proceeding in equity in aid of the original jurisdiction of the court, and, though sponse to its order or be adjudged in contempt, the court requires defendant to appear in rethe proceeding is not changed into a criminal proceeding within Rem. & Bal. Code, § 1054, providing that in a proceeding for contempt the state is plaintiff. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 799, 805; Dec. Dig. § 311.*] 3. DIVORCE (§ 311*)-DECREE OF ALIMONYENFORCEMENT-NATURE OF PROCEEDINGS. Where in such proceedings defendant failed to appear in response to the order of the court requiring him to appear or be adjudged in contempt, the court, desiring to move against defendant for his refusal, must commence a new proceeding under Rem. & Bal. Code, § 1054, providing that in a proceeding for contempt the state is plaintiff. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 799, 805; Dec. Dig. § 311.*1 |