for them when sold."
for them when sold." An obligation did not
therefore arise under this contract immedi-
ately, so as to set at once the statute of lim-
itations in motion. It could arise only after
the pianos were sold, as it was at that time
only that the appellant's obligation to pay
for them arose. As to when they were sold
there is no proof in the record, further than
might arise from the fact that the parties
were dealing on that basis at the time the
$500 payment was made; namely, March 15,
1909. But the limitation of the statute had
not expired between that date and the date

debt. Had it been so intended unquestion-1 to say, it would "hold them on sale and pay ably the words "in full" would have been written in the receipt, instead of the words used, when the manager refused to accept it as originally presented. It is a deduction It is a deduction more satisfactory to our minds that the manager thought the words "on account" would be an admission of a balance due, whereas he wished to be left in a position to contest the question, should the principals claim a balance. That the manager did not understand that the account was finally adjusted by the payment of the $500 is also shown by his subsequent letters. Under date of June 4, 1910, less than three months after the pay-of the commencement of the action. ment, he wrote the attorney a letter concern- [3] While the plea of the statute of limitaing the matter, in which he stated the ac- tion is not now regarded by the courts with count between the appellant and Clough & the disfavor with which it was once regardWarren as he understood it, saying that it ed, still the courts will not now indulge in was "our earnest desire to have the account any presumptions in its favor. The bar must straightened and settled as soon as possible." clearly appear on the face of the complaint, Again, on June 30, 1910, he wrote Clough & or it must be clearly pleaded and proven Warren, saying that the appellant did not by a preponderance of the evidence that the wish to avoid paying what it owed, but first bar exists, before it will be recognized as a wanted to know that it owed it; and, after defense to an action. detailing certain methods that had been adopted by the appellant to ascertain the status of the obligation, used this language: "This method will give us, we hope, complete details that will enable us to establish the balance owing and the amount now accrued and payable, and, as far as Seattle is concerned, settle the controversy for all time."

In reaching the foregoing conclusion, we have not overlooked the appellant's contention to the effect that the sale of the socalled Harvey pianos was made for a lump sum at a discount, and its argument based thereon to the effect that this sale, since it was made on the same conditions, must be Clearly, if the appellant's manager had held to be a sale for a lump sum with the understood that the controversy had been set- same discount. But, as we read the record, tled by the transactions surrounding the giv-edly the pianos received from Harvey were the facts do not justify this claim. Undoubting of the receipt, he would not at these finally sold to the appellant for a lump sum times have spoken of it as unsettled.

with a discount, but this was not in accordThe second contention is that the right of action is barred by the statute of limi-ance with the original agreement of the parof action is barred by the statute of limi- ties. In the letter of Clough & Warren in tations of the state of California. There is which the Harvey pianos were listed to the a controversy between the parties respect- appellant, the appellant was given the option ing the place of contract, and the status of to take them at the list prices and pay for the pleadings respecting the plea of the stat- them when sold, or to take them for cash ute of limitations set forth in the answer. with a discount. But by the letter quoted These we shall not consider further than to appellant accepted the first proposition, and say that we shall assume that the contract in the same letter offered to take the Seatof sale of the pianos was made in the state tle stock on the same condition. These terms of California, and that there was no such Clough & Warren accepted. Clearly it was denial in the reply of the respondent to the the contract as then accepted which controlplea of the statute as to put the appellant led the sale of the Seattle stock, not the Harupon its proofs. vey contract as subsequently modified.

Some question is made concerning the suf

[2] But, in so assuming, we cannot agree with the appellant that there is sufficient in ficiency of the assignment of the account the record to show a bar of the action. It from Clough & Warren to the respondent, will be remembered that by the contract, as and as to the capacity of Clough & Warren evidenced by the letter of the appellant to to make the assignment. But as to these the respondent of December 5, 1904, from questions we think there can be no reasonwhich we have quoted, and the reply there-able cause for doubt, and shall not specially to by the respondent, conceded to have been review the proofs thereon. an assent to the terms proposed, the appellant offered to take the stock of pianos in question on the same terms it had consented to take the J. A. Harvey stock; that is

The judgment is affirmed.

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

(82 Wash. 301)

MAY CREEK LOGGING CO. v. PACIFIC
COAST CASUALTY CO. (No. 11854.)
(Supreme Court of Washington.

1914.)

Nov. 17,

INSURANCE (§ 435*)-RISK-EMPLOYERS' LIA-
BILITY INSURANCE.

A policy insuring a logging company, which in accordance with the usual custom deducted a hospital fee from the pay of its employés and furnished them with surgical and hospital facilities, against damages for injuries accidentally suffered by an employé does not insure against damages recovered by an employé from the malpractice of a company surgeon, especially where the liability of the company for such damages was based upon the contract of employment.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1144; Dec. Dig. § 435.*]

was injured while in the course of his employment, and by reason thereof required medical and surgical treatment and hospital attention and care; that the appellant at once furnished him with surgical attention and hospital attention, as was its duty, employing a certain named physician and surgeon for that purpose, and that such surgeon undertook the treatment of the injury, but treated it so unskillfully and negligently that Klodek was permanently crippled and injured to his damage; that Klodek commenced an action against the appellant for damages arising out of such unskillful treatment; that the appellant tendered the defense of the action to the respondent in accordance with the provisions of the policy; that the respondent refused to undertake the defense of the action; that the appellant thereupon defended the action itself, but unsuccessfully, and judgment went against it therein for the sum of $4,500, with costs; that it appealed from the judgment to the Supreme Court of the state of Washington, where the judgment was affirmed; that it afterwards satisfied the judgment, paying thereon the sum of $4,856.85; that it expendFULLERTON, J. The appellant, a logging necessary expense in defending the action the ed in attorneys fees, witness fees, and other company engaged in the general logging business, brought this action against the respond- is for the sums so paid with interest. Attachsum of $1,000. The prayer of the complaint ent, a surety company, to recover upon a pol-ed to the complaint is a copy of the complaint icy of insurance issued to it by the respond- in the action brought by Klodek against the ent, indemnifying it against certain defined appellant. A demurrer to the appellant's comlosses. plaint was interposed by the surety company which the trial court sustained. The appellant elected to stand on the complaint, and a judgment of dismissal with prejudice was entered against it. This appeal followed.

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam, Judge. Action by the May Creek Logging Company against the Pacific Coast Casualty Company. Judgment for the defendant, and plaintiff appeals. Affirmed.

Geo. D. Emery, of Seattle, for appellant. Peters & Powell, of Seattle, for respondent.

In the complaint it is alleged that the respondent, for value received, executed its certain policy of insurance to the appellant, wherein and whereby it insured the appellant

against loss and expense arising from claims or damages on account of bodily injury accidentally suffered, or alleged to have been suffered, during the period of such policy by any employé of the insured, by reason of the prosecution of the work described in the policy, to wit, the general logging operations of the appellant, "and the various departments thereof, and dependent and connected operations and parts thereof;" that it was generally customary and usual for all logging companies and persons engaged in the logging business to collect from each of their employés a fee of $1 per month, and in consideration thereof to furnish and provide medicines and suitable medical and surgical treatment, hospital attendance and care, for a period not exceeding six months to any such employé who should become sick or injured while in the course of his employment, all of which the respondent well knew when it issued its policy of insurance to the appellant; that the appellant had in its employ one Klodek, from whom it had collected such fee; that Klodek

.

ed a specific agreement, entered into between In that complaint Klodek alleghimself and the appellant at the time he was employed by the appellant, by which the appellant agreed, in consideration of the fee deducted, and without further expense to him, to furnish him, in case he should be injured, "with the services of a suitable surgeon and treat him until his recovery therefrom, and skilled physician and surgeon to attend and likewise provide for him, without further or other cost to him, a suitable and proper hospital, wherein he should be kept and cared for until his recovery from such injuries.

A reference to the opinion of this court on the appeal shows also that the recovery was had on special contract to furnish medical and surgical services.

The trial court sustained the demurrer on the ground that the loss suffered by the appellant was not a loss covered by the conditions of the policy. of the policy. This conclusion we think is the only conclusion that can be properly drawn from the facts shown by the record. The respondent's liability of course depends upon the conditions of its policy. If it has thereby undertaken to answer for losses arising from claims of damages on account of the negligent failure of the appellant to perform a special contract wherein it undertook to furnish an employé with hospital, medical, and surgical services, then it is liable to answer to the suit of the appellant, otherwise not. We cannot think the policy bears

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

CROW, C. J., and PARKER, MOUNT, and to be collusive. MORRIS, JJ., concur.

[Ed. Note. For other cases, see Contracts, 3. CONTRACTS (§ 290*)-BUILDING CONTRACT-1340-1342, 1344-1346, 1348, 1350, 1351; Dec. Cent. Dig. §§ 1308, 1309, 1312-1316, 1318-1338, PERFORMANCE-CERTIFICATE OF ARCHITECT- Dig. § 287.*1

the whole certificate; it being invalid only as to those matters which the architect did not have power to determine.

[Ed. Note. For other cases, see Contracts, Cent. Dig. § 1308, 1309, 1312-1316, 1318-1338, 1340-1342, 1344-1346, 1348, 1350, 1351; Dec. Dig. § 287.*]

11. CONTRACTS (§ 284*)-BUILDING CONTRACTS -CONSTRUCTION.

as consistent with the original drawings and specifications.

(3) No alterations shall be made, except upon written order of architects, and the value of work added or omitted thereby shall be computed by the architects and be added tc, or deducted from, the contract price. In case of disuation shall be referred to three disinterested sent from such award by either party, such valarbitrators, one to be appointed by each of the parties and the third by the two thus chosen, the decision of any two of whom shall be final. (4) The contractor shall, within 24 hours aftgrounds or building all materials condemned, and take down portions of work condemned by written notice from the architect.

Where a building contract provided that disputes over performance should be determined by the architects, and that they should determine the causes of, and the damages resulting from, delay, the architects' certificate as to damer notice from the architects, remove from the ages suffered by the owner by reason of defendants' delay, consisting of extra expense, labor, etc., is conclusive.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310, 1312-1316, 1326-1338, 1340-1342, 1344-1346, 1350, 1351; Dec. Dig. 284.*]

12. DAMAGES (§ 120*)-CONTRACTS-BREACHMEASURE OF DAMAGES.

Where a contractor failed to furnish material for the construction of a building, the owner's measure of damages for loss of rent during the time he was delayed is the reasonable rental value of the premises for that time. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 291-305; Dec. Dig. § 120.*] 13. DAMAGES (§ 189*)-CONTRACTS-ACTIONS

FOR BREACH-EVIDENCE-SUFFICIENCY.

In an action against a contractor for damages for delay in the completion of a building, held that, under the evidence, the reasonable rental value of the property was $1,000 a

month.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 288, 512; Dec. Dig. § 189.*]

(6) All terra cotta required for first story, up to and including second story sill course, must be delivered within seven weeks from date of contract, balance as required by general contractor, so as not to delay the work. In case of failure in this regard causing loss to the owner, the contractor agrees to reimburse the owner for any loss or damage caused by such failure, which loss or damage shall be estimated and certified by the architects, as provided in the eighth article.

(7) Should contractor be delayed by any delay or neglect of the owner or architect or any other contractor employed upon the work, completion shall be extended correspondingly, through no fault of the contractor, the time for but no allowance shall be made, unless claim in writing therefor be presented to the architect within 24 hours of such delay. Such extension shall be certified by the architects, but an appeal may be made to arbitration, as provided in

third section.

(8) The owner shall provide the other materials in such manner as not to delay material progress of the work, and, in the event of failure so to do causing loss to the contractor, he shall reimburse the contractor for such loss, and, if the contractor delay the material proghe shall make good such damage. The amount ress of the work causing damage to the owner, of such loss to either party shall, in every case, be determined by the architects or by arbitration, as provided in section 3.

Department 1. Appeal 1. Appeal from Superior Court, Spokane County; J. D. Hinkle, Judge. Action by the Bavaria Investment Company against the Washington Brick, Lime & Sewer Pipe Company, which counterclaimed. From the judgment, both parties appeal. Reversed and remanded, with directions. Tolman & King, of Spokane, for appellant. Charles P Lund, of Spokane, for re-deductions as provided, such price to be paid spondent.

ELLIS, J. This action was brought to reELLIS, J. This action was brought to recover damages certified by the architects of an apartment building erected for the plaintiff in the city of Spokane, and for the cancellation of a claim of lien on the building filed by the defendant for terra cotta furnished in its construction under a contract. On July 19th the parties entered into a contract, in which the plaintiff is designated as the owner and the defendant as the contractor. It is in substance as follows:

(9) The contract price for the work and materials shall be $2,165, subject to additions and

as follows: $500 when all terra cotta to top of
second story windows is delivered; $500 when
all terra cotta to top of third story windows is
delivered; $500 when all terra cotta is delivered
on the ground; and the balance when placed in
position and accepted by architects, final pay-
ment to be made within ten days after contract
is fulfilled. All payments shall be made upon
have become due.
written certificates of the architects that they

(10) No certificate given or payment made, except the final certificate or final payment, ther in whole or in part, and no payment shall shall be conclusive evidence of performance eibe construed an acceptance of defective work or materials.

(11) The owner shall maintain full insurance during the progress of the work in his own name and that of the contractor against loss or damage by fire, payable to the parties as their interests appear.

(1) The contractor, under the direction and to (1) The contractor, under the direction and to the satisfaction of specified architects, shall provide all materials and perform all work for the terra cotta required for the building, according to specifications and drawings prepared by the Plaintiff's complaint sets up two causes architects and color as selected by owner and of action: The first claims, for delay in furarchitects. The contractor guarantees the same to be of even color, of square and even bed, nishing the terra cotta, damages in the sum and to be and remain free from checks and of $6,036.11, as certified by the architects, cracks, and to replace without cost to the own-less the contract price of the material, $2,er any defective terra cotta furnished. 165, making a net damage of $3,871.11, and alleges that the defendant in no manner dissented from the award of the architects.

(2) The architects shall furnish further details, explanations, and illustrations as necessary, to which contractor shall conform, so far

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