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plaintiff appeals. Reversed and remanded, with instructions.

Geo. D. Emery, of Seattle, for appellant. Saunders & Nelson, of Seattle, for respond

ent.

Eccesrsky some years before his death was awarded a pension by the government, receiving in a lump sum some $1,900. Of this money, he intrusted to the respondent $1,400, and drew therefrom, as his necessities required, until the time of his death. At that time there remained in the respondent's FULLERTON, J. Frank Eccesrsky died at hands the sum of $40. He left no other esSilverton, Wash., on the night of January tate whatever, and for a considerable time 22, 1913. On the day following, the appel- prior to his death had lived the life of a lant, Anderson, sent a message to the repauper in an old abandoned hotel building spondent, Koen, at Seattle, Wash., notifying at Silverton.

him of the fact, and requesting an answer.

The court rested his decision on the ground Koen, on receiving the message, called one that there was no express promise on the Lee, an undertaker residing at Granite Falls,

requesting him to communicate with Silver part of the respondent to pay for the servrequesting him to communicate with Silver-ices rendered with respect to the carriage of ton, and have some one bring the body of the body, and that the presumption followed Eccesrsky to Robe, where he would meet it. Lee was not able to deliver the message be

cause of the fact that a severe storm then

prevailing had cut off the means of communication. After failing to get a message by telephone, he sought to communicate with Anderson by telegraph, and went to the telegraph office, and submitted a message addressed to him directing him to send the body down to Robe. This message he was

also unable to get through. One Kelley, who

that he contracted on behalf of the estate of that he contracted on behalf of the estate of

the decedent. The case of Butterworth v.

Bredemeyer, 74 Wash. 524, 133 Pac. 1061, is
cited as sustaining the contention, but we
In that
cannot think the case applicable.
to an undertaker to take charge of the burial
case it was held that an ordinary direction
of a deceased person did not create a primary
liability on the part of the person giving
the order to pay the expenses of the burial;
that the presumption was that the contract
liability of the person giving the order was
was made on behalf of the estate; that the

body from a distant place to the place of burial, where it could be turned over to an undertaker employed to perform the service of burial. The claim for such transportation, therefore, stands on the same plane as would the claim of a regular transportation company performing the same service, and the same acts which would create a liability in the one case creates it in the other.

was with him, then suggested that he (Kelley) could get a message to his brother, who resided at Silverton. The respondent told him to do so, whereupon Kelley sent his secondary to the liability of the estate; and brother the following message: "Get Frank that the primary fund must be exhausted beEccesrsky down to Robe Monday, regard-fore a resort could be had to the secondary less of expense. Koen will meet you there." fund. But here there was no primary fund. On returning from the telephone booth, he The decedent left no appreciable estate, and informed the respondent of the nature of the the person's performing the services were entitled to resort to the secondary liability message, who responded, "All right." The receiver of the message communicated it to in the first instance. Again, the services here Anderson, and he with others, prepared to requested were not ordinary burial servtake the body out on a hand sled; the ordi-ices, such as the rule contemplates; they nary means of travel being cut off by the were services rendered in transporting the storm. Later on, while preparations for the removal of the body were being made, Koen called Anderson by telephone from Granite Falls, inquiring what progress they were making, and, on being told what had been done, directed him to get such help as he needed and bring the body down as soon as possible, saying he had arranged to have a car at Robe to carry the body on to Granite Falls. Anderson, with his assistants, thereupon carried the body to Robe on the hand sled, and from there to Granite Falls on a hand car, where it was delivered to an undertaker, who had been employed by Koen, for burial. The trip took the labor of seven men for four days, and cost them in expenses $34.30. For their services they demanded of Koen sums aggregating $352.30, and on his refusal to pay the same, Anderson took an assignment of the claims of his colaborers and brought the present action against Koen to recover the amount claimed had been made known to him. Moreover, to be due. Koen denied liability, and, at the trial below, the court sustained his contention, dismissing the action. Anderson ap

In this court the further contention is made that there was in fact no direction given by the respondent for the transportation of the body from Silverton to its place of burial; that the telephone message sent by Kelley, directing that the body be brought out regardless of expense, was the message of Kelley, and not the message of the respondent. But the evidence is ample to the effect that the respondent directed Kelley to send the message, and approved of its form after the manner in which it was worded

his own direction, concededly sent to the appellant from Granite Falls, was ample to obligate him for the reasonable expenses of

On the question of the amount of the recovery, the evidence was to the effect that the services were reasonably worth $10 per day for each of the men employed; that it was reasonably worth $6 to make the sled and $10 to make the box used in the transportation of the body; and that the expenses of the party for meals and lodging were $34.30. These sums aggregate $330.30, and this sum we think the appellant entitled to recover.

The judgment is therefore reversed, and the cause remanded, with instructions to enter a judgment in favor of the appellant (plaintiff below) in the sum of $330.30.

Action by Michael Jennings against the City of Pasco. Judgment for defendant, and plaintiff appeals. Affirmed.

Cannon, Ferris & Swan and John M. Cannon, all of Spokane, for appellant. Gerard Ryzek, of Pasco, for respondent.

FULLERTON, J. In July, 1910, the city of Pasco, by ordinance, provided for the construction of a sewer system within its corporate boundaries, according to plans and specifications therein adopted. To meet in part the expense of the proposed work, the city provided for the issuance of local improvement bonds, to be paid by assessments

CROW, C. J., and MOUNT, PARKER, and upon property benefited by the construction MORRIS, JJ., concur.

(82 Wash. 335)

JENNINGS v. CITY OF PASCO.

of the sewers. Bids were called for, and a contract let for the construction of the work. The person to whom the contract was let, however, failed in his undertaking, and left the work in a partially completed condition. Nov. 21, The city subsequently called for proposals for the completion of the work, and the appel1. MUNICIPAL CORPORATIONS (§ 370*) -IM-lant, Jennings, submitted a bid to that end. PROVEMENTS CONTRACT CONSTRUCTION The bid was on a form evidently prepared -"BOND."

(No. 11963.)

1914.)

(Supreme Court of Washington.

Where a proposal to finish a sewer improvement not only contained gross bids for the particular work, but a bid based on the units into which the work had been divided by the city in making estimates of its prospective cost, and the contract recited that the sum bid was an approximate estimate of the contract price which was to be paid in accordance with the unit bid submitted, as shown by the attached proposal, and instead of providing that the entire cost of the work should be paid in city bonds, it declared that 85 per cent. of the cost should be so paid and the remaining 15 per cent. should be paid either in cash or by warrants drawn on the city's general fund, held that the term "bonds," having been used in the contract without qualification or reference to the proposal or the explanatory phrase therein concerning accrued interest, meant that the city did not accept the proposal in its entirety, but used it rather as a basis for an independent agree ment, and that the word "bond" should be giv en its ordinary meaning, which contemplated that the bonds were to be taken at their par value, to wit, their face value, plus accrued interest at the time of delivery.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 902, 903, 908, 909; Dec. Dig. § 370.*

For other definitions, see Words and Phrases, First and Second Series, Bond.]

2. MUNICIPAL CORPORATIONS (§ 352*) - IMPROVEMENTS SEWER CONSTRUCTION CON

TRACT-CONSTRUCTION.

by the city. It was precluded with certain cautions and instructions to bidders, among which is found the following recital: "Payments for the work will be based upon the actual quantities measured in the finished

work."

The bid proper (in the parts necessary here to be noticed) was as follows:

The undersigned hereby certifies that he has To the City Council of the City of Pasco: personally and carefully examined the plan, specifications and form of contract for the work and alleys in the city of Pasco; that he fully to be done on a sewer system in certain streets understands the manner in which payment is proposed to be made for the cost of said improvement, that he hereby expressly agrees that, if awarded the contract for this improvement he will perform the work according to the of the city engineer for the sum of $76,141.35 plans and specifications under the supervision cash or for the sum of $78,547.35 payable in local improvement bonds, said bonds to be accepted at par value with accrued interest thereon; that having made the necessary examinations, hereby propose to furnish all material and to perform all labor which may be required to complete said work in accordance with said plans and specifications, and upon the terms and conditions provided in said specifications and form of contract, at the following prices, to wit, less amount paid former contractor:

Approx. No. and Items.

Where a sewer construction contract was Amount. subject to two interpretations as to the amount to be paid the contractor for drop pipe manholes.

8 ft. deep or under, each

and the proper construction was sufficiently 73 Manholes, complete
doubtful to give rise to legitimate dispute, the
construction of the city's engineer was conclu-
sive, under a provision of the contract and spec-
ifications that the engineer's construction un-
der such circumstances should be final.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 883; Dec. Dig. 8 352.*1

Manholes, complete, per each ft. in depth over 8 ft.

[blocks in formation]

Manholes, drop pipe, per lineal foot

[blocks in formation]

Department 2. Appeal from Superior Court, Franklin County; O. R. Holcomb, . Judge.

[blocks in formation]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

at the time the appellant submitted his bid, in the hands of the city treasurer. From an examination of the appellant's proposal or

Subsequently a formal contract was entered into by the terms of which the appellant undertook to complete the work in accordance with the original plans and specifications, bid, it will be observed that with reference agreeing therein to perform the work under the supervision of the city engineer. The contract also contained the following provisions:

"An approximate estimate of the cost of said improvement which the party of the first part agrees to pay the party of the second part is $78,547.35, to be paid in accordance with the unit bid submitted by the party of the second part and as shown by attached proposal, which is hereby made a part of this contract, and said improvement shall be constructed upon the streets covered by the outlet and mains shown by Exhibit A, hereto attached and made a part of this contract, such being outlet No. 1, main F, submain F 1 to 7 inclusive, laterals F 1 to 22 inclusive, main E, submain E 1 to 3 inclusive, laterals E 1 to 13 inclusive; Main C, 1 to 2. The streets and alleys upon which the said improvement is to be made shall be as shown by the sewer map constituting a part of the plans and specifications.

"The contract price herein agreed upon shall include all the costs of preparing and fully completing said improvement in every manner, and the party of the second part shall save the city harmless and shall be bound on its bond for all damages suffered by reason of its neglect to properly guard the streets or alleys during the work of said improvement, and for failure to protect life and property.

"This improvement shall be paid for in the following manner, to wit: That 15 per cent. of the contract price shall be paid for by general indebtedness warrants or cash, and that the balance, or 85 per cent. shall be paid for by the issuance of bonds issued on Local Improvement Sewer District No. 1, as created by said Ordinance No. 105, and in no event shall the said party of the second part make any claim upon the city from its general fund for the payment under this contract except as herein provided. "That on or before the 10th day of each month the said party of the second part shall receive the local improvement bonds and cash for 85 per cent. of the amount of work performed for the previous month, upon the order or the certificate of the engineer for the completed work as shown by said certificate and after being passed upon and approved by the city council. Said bonds or cash shall be delivered to the party of the second part by the city treasurer. Upon an order from the city council in a sum equal to the estimate of the city engineer, or as near thereof as is possible, on or before the date aforesaid of each month. The party of the first part shall, at all times. retain 15 per cent. of the different estimates of the amount of work completed, and no money or bonds shall be paid therefor until the final certificate of the completion of the work herein provided for shall have been filed with the city clerk."

On the completion of the contract the parties were able, with the exception of the single item hereinafter noticed, to settle all of their disputes over the amount earned under the contract. A difference arose, how ever, over the amount the appellant was entitled to receive in bonds for the work. The evidence introduced at the trial disclosed that the local improvement bonds contemplated by the ordinance authorizing the work had been dated and signed at some time pending the progress of work under the original con

to the gross offer therein contained the bid is in the alternative; he offers to "perform the work according to plans and specifications under the supervision of the city engineer for the sum of $76,141.35 cash, or for the sum of $78,547.35 payable in local improvement bonds, said bonds to be accepted at par value with accrued interest thereon." The appellant contended before the city officers, contended in the trial court, and contends here, that the contract entered into was a rejection of his offer to perform the work for a consideration payable in cash, but an acceptance of his offer to perform the work for a consideration payable in local improvement bonds; that by the terms of this part of the offer, he is entitled to bonds which on their face, exclusive of interest, equal the sum the contract provides he shall receive in bonds. His present suit on this branch of the case has its foundation in this contention. In the two court below the city defended on grounds: First, that it was not a proper construction of the contract; and, second, that if the contract bears that construction, it is ultra vires, because an agreement the city was without power to make. The trial judge adopted the latter view, and denied recovery, holding that the case fell within the principle of the case of State ex rel. Grant Smith & Co. v. Seattle, 74 Wash. 438, 133 Pac. 1005. But we agree with the appellant that the trial court must have overlooked the vital distinction between the facts of the two cases.

[1] In the case cited it was not contended that the contract by which the contractors agreed to accept bonds in lieu of cash called for a delivery of bonds at their face value, less the accumulated interest, and the court well held that, in the absence of a contract calling for payment in that manner, such a payment would be an overpayment in the nature of a gift, and one not within the power of the city to make. But here it is the gist of the appellant's contention that his contract calls for a payment in bonds at their value, less the interest accumulated at the time of their delivery. Clearly, if under the statute forbidding the sale of local improvement bonds at less than par, the city may lawfully contract to pay the cost of a public improvement in bonds at all, it may contract to turn them over at the face value, less the accumulated interest. Cities are able to make public improvements by payment in bonds solely because the contractor can discount the bonds by increasing the contract price for the work, and it is just as lawful to discount them by deducting accumulated interest as it is to discount them by increasing the contract price in a sum equal to the amount of the accumulated interest.

theless, on the first ground suggested by the the furnishing a special and other material city. If we were to regard the language of needed. In the case of manholes the price bid the proposal itself as the governing consid-joints of pipe required for inlets to manholes shall include the furnishing in place of all eration in fixing the amount of bonds the ap- other than the main line of pipe, as shown on pellant is to receive for the work, it can be the plans or directed by the engineer." seriously questioned whether it will bear the The appellant contends that under the bid interpretation he puts upon it. But, be this as explained by the specifications he is enas it may, the contract subsequently entered titled, for the installation of a drop pipe into, where free from ambiguity, must meas- manhole, to the price agreed to be paid for an ure the rights of the parties, and we think ordinary manhole, plus $6.50 for each lineal its language clear on this particular question. foot of drop pipe used in such construction. The proposal, it will be observed, not only The city engineer construed the contract to contained gross bids for the particular work, mean that the appellant was entitled for a but contained a unit bid also; that is, a bid drop pipe manhole to the price agreed to be based on the units into which the work was paid for an ordinary manhole when the divided by the city in making estimates of depth was eight feet or less, and that sum, its prospective cost. In the contract it is re- plus $6.50 per foot for each foot in depth cited that the sum bid is an approximate es- over 8 feet. It was on the engineer's estimate of the contract price, which is "to timates that the city tendered settlement. be paid in accordance with the unit bid sub- The question, What is the proper construction mitted as shown on the attached of the contract? is we think sufficiently doubtproposal." The contract differs from the ful to give rise to a legitimate dispute, and proposal also with respect to the amount of in such cases both the contract and the specthe contract price to be paid in bonds. In- ifications provide that the engineer's constead of providing that the entire cost of the struction shall be accepted by both parties work shall be paid in bonds, it provides that as final and conclusive. This would conclude but 85 per cent. of the cost shall be so paid, the matter but for the fact that the engineer, and that the remainder, 15 per cent., shall be while on the witness stand, expressed a paid either in cash or by warrants drawn doubt as to the correctness of his interpreupon the city's general fund. The term tation, and this, the appellant contends, opens "bonds" is used in the contract without qual- the doors to an investigation by the courts. ification, and without reference to the pro- But as we read his evidence, the engineer posal, or the explanatory phrase therein con- meant no more than to say that the contract cerning accrued interest. This must mean, was capable of a different construction from we think, that the city did not accept any that which he originally gave it, not that form of the proposal in its entirety, but used he had departed therefrom, or that his origiit rather as a basis for an independent agree- nal construction found no support in the ment. This being so, the words and terms wording of the contract. Our conclusion is used therein must be given their ordinary that this branch of the case is foreclosed by and usual meaning, independent of any refer- the engineer's decision. ence to the proposal where the contract itself does not make such reference. The word "bonds," therefore, as used in the contract must be given the meaning. that ordinarily obtains when used without explanation. In this case it would mean that the bonds are to be taken at their par value; that is, the face of the bond, plus the accumulated interest at the time of delivery. State ex rel. Grant Smith & Co. v. Seattle, supra.

[2] The second matter in dispute arises over the price agreed to be paid for the inThe stallation of the drop pipe manholes. proposal we have quoted in another connection. The specifications relating to the matter read as follows:

"Ordinary manholes and flush tanks will be paid for on the basis of a depth of eight feet, with an additional amount for each foot for by which the depth exceeds eight feet, the price bid to include excavating and back filling, furnishing and settling iron castings and steps and completing the whole as set forth in the plans and specifications. The depth of manholes shall be measured from the invert of the pipe to the top of the cover as set to grade. Drop manholes will be paid for as above except that the drop pipe will be paid for on a basis of per foot of lineal length in place which price will include

There is no reversible error in the record, and the judgment will stand affirmed.

p

CROW, C. J., and MOUNT, PARKER, and MORRIS, JJ., concur.

(82 Wash. 209) (No. 11851.)

JENNINGS v. SCHWARTZ.
(Supreme Court of Washington. Nov. 14,
1914.)

SALES (§ 462*)-CONDITIONAL SALES-EXECU-
OF CONTRACTS "SIGNED" - SUFFI-

TION
CIENCY.

Rem. & Bal. Code, & 3670, provides that all conditional sales of personal property, where it is placed in the possession of the vendee, shall be absolute as to purchasers and subsequent creditors in good faith, unless within 10 days randum of the sale, etc., signed by the vendor after taking possession by the vendee a memoand vendee shall be filed, etc. Held, that the word "signed" as so used required an actual signature by the vendor, and was not satisfied by the fact that the trade-name of the vendor was printed at the top of the instrument constituting the memorandum of sale.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1350; Dec. Dig. § 462.*

For other definitions, see Words and Phrases, First and Second Series, Sign.]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Department 2. Appeal from Superior | the filing with the county auditor of the conCourt, King County; John E. Humphrie, ditional contract of sale. The trustee in Judge.

Action by I. H. Jennings, as trustee of the Pacific Coast Glass Company, against Frank Schwartz, sole trader doing business under the name of the Alaska Junk Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff for $200. Nelson R. Anderson and France & Helsell, all of Seattle, for appellant. Wright, Kelleher & Caldwell, of Seattle, for respondent.

FULLERTON, J. On August 23, 1912, the respondent, Schwartz, trading under trading under the name of Alaska Junk Company, made a conditional sale of personal property, consisting of a steam boiler with fittings, to the Pacific Coast Glass Company. The property was delivered on the following day, and within 10 days from that time the vendor of the property caused to be filed in the auditor's office of the county wherein the vendee resided a memorandum of the conditions of such sale. The opening and closing clauses of the memorandum read as follows:

"These presents witness: That the Alaska Junk Company, of Seattle, King county, Washington hereinafter called the vendor, has delivered to Pacific Coast Glass Co. residing at Seattle, in King county, Washington, hereinafter called the vendees, the personal property hereinafter described, under a contract of conditional sale. The terms and conditions of which contract of conditional sale are as follows, to wit: **

"In witness whereof the parties hereto have caused these presents to be executed this 23d day of August, 1912."

The instrument was signed by the vendee at the close thereof at the ordinary place of signature. It was not signed by the vendor personally, either with his proper or trade name, on any part of the instrument. The only place his name appears is in the opening clause, where it was printed as a part of the printed form which the draftsman used who prepared the instrument. After receiving the boiler the vendee set it up in its manufacturing plant wherein it was used from about August 1, 1912, until the middle of November following, at which time the plant was permanently closed. The vendee defaulted in the last installment payment due on the purchase price of the property, and the vendor, in the early part of February, 1913, after notice, entered the plant and retook possession of the boiler. On February 11, 1913, the vendee was adjudged a bankrupt, and in due course of the bankruptcy proceedings the appellant, Jennings, was elected trustee of the bankrupt's estate. The proceedings in bankruptcy disclosed creditors of the bankrupt, who had become such subse quent to the delivery of the boiler to the vendee and prior to the time possession thereof was retaken by the vendor, and who had no notice of the terms of the sale other than

bankruptcy conceived that the memorandum of the sale as filed was insufficient to impart notice to such creditors, and instituted the present action to recover the value of the boiler. Recovery Recovery was denied him in the trial court, and he appeals from the adverse judgment entered.

The principal question suggested by the record is the validity, as against the subsequent creditors of the bankrupt, of the contract of conditional sale. The statute regulating conditional sales of personal property is found at section 3670 of the Code (Rem. & Bal.), and reads as follows:

"All conditional sales of personal property, or to purchase, where the property is placed in the leases thereof, containing a conditional right possession of the vendee, shall be absolute as to the purchasers, incumbrancers and subsequent creditors in good faith, unless within ten days after taking possession by the vendee, a memorandum of such sale, stating its terms and conditions and signed by the vendor and vendee, shall be filed in the auditor's office of the county, wherein, at the date of the vendee's taking possession of the property, the vendee resides.

It is the contention of the appellant that the recorded memorandum of the conditional sale contract was not signed by the vendor within the meaning of this provision of the Code, and is therefore void as against the creditors of the bankrupt who became such subsequent to the delivery of the property to the vendee. From a mere reading of the section of the statute quoted, it will be observed that there is no question as to the necessity of a signing by both the vendor and vendee of the memorandum made of a conditional sale of personal property in order to render the contract valid against subsequent creditors in good faith of the vendee, as the statute so declares in plain and unequivocal terms, leaving no room for doubt or conjecture. It will be observed, also, that this memorandum was not so signed, unless it can be held that the printed trade-name of the vendor in the opening clause of the instrument is the signature of the vendor.

To the question, what will constitute a signing of a memorandum within the meaning of this statute? the respondent cites and relies on the cases passing upon the somewhat analogous question, what will constitute a signing of a memorandum by the party to be charged under the statute of frauds? The cases upon the point from other jurisdictions, while not entirely harmonious, seem to announce the rule that to print, stamp, or typewrite the signature of the party to be charged on the instrument, whether at the top, in the body, on the side, or at the bottom, is a sufficient signing, if the instrument be delivered, acted upon, or disposed of by such person in such manner as to unequivocally show that he intended to adopt and recognize the signature as his own. Drury et al. v. Young, 58 Md. 546, 42 Am. Rep. 343:

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