county treasurer a sum which it insists is all that is justly due as taxes upon its capital stock for the year 1913, the plaintiff prays that the county treasurer be required to accept such tender in full payment of the taxes for that year, and that he be enjoined from enforcing payment of any additional sum from the plaintiff. Trial in the superior court resulted in judgment denying the relief prayed for and the dismissal of the action, from which disposition of the case the plaintiff has appealed to this court. Counsel for appellant rest its claim for relief upon the ground that in the assessment of its capital stock for the year 1913 the county assessor designedly and intentionally valued its capital stock for the purpose of taxation at 60 per cent. of its actual cash value, and at the same time designedly and intentionally valued all other property in the county at not to exceed 40 per cent. of its actual cash value, thus working a fraud upon the rights of the appellant. Such, in substance, are the allegations of the complaint. Upon this theory it is sought to establish appellant's right to the relief prayed for, invoking the holding of this court in Spokane & Eastern Trust Co. v. Spokane County, 70 Wash. 48, 126 Pac. 54, Ann. Cas. 1914B, 641. For present purposes it may be conceded that, if the evidence presented to the superior court in this case to sustain these allegations had been such as to render it clear and certain that a fraud had thus been worked upon the rights of appellant, it would be entitled to relief under the holding of that decision. That case, however, was disposed of upon demurrer, and, of course, upon the assumption that the allegations of the complaint were true. The merits of the case before us are determinable not from the allegations of the complaint, but from the evidence and the presumptions against capricious and arbitrary action on the part of the assessor. The assessor who made the 1913 assessments testified, in substance, that he tried to the best of his ability to ascertain the actual value of all property assessable in that year, and then took 60 per cent. of such value, which he adopted as the assessed value, that he instructed his deputies to adopt this same rule, and that it was so applied by him as to bank stock and other property assessed in that year. Real property being assessable biennially in even-numbered years was not assessed in the year 1913. Rem. & Bal. Code, § 9101. As opposed to this testimony of the assessor and the presumptions against his having acted in an arbitrary or capricious manner, we have the testimony of his predecessor in office who made the assessment of the real property in the year 1912, to the effect that, in his opinion, the assessment of personal property made in 1913, other than of bank stock, did not exceed 45 per cent. of its actual value, and that in the year 1912 he assessed the real property at about 45 per cent. of its actual value. By his testimony he seems to regard the value of real property as having decreased somewhat in 1913, so that it would seem to leave the 1912 real property assessment, which, of course, could not be changed in 1913, because not assessable in that year, at a somewhat higher percentage than was actually made in 1912. Upon this testimony, which we regard as all that substantially affects the correct conclusion to be reached by the court, the case was submitted for decision upon the merits. The court reached the conclusion that the showing was not so plain in appellant's favor as to warrant interference with the assessment as made. We are constrained to agree with the conclusions reached by the trial court. Viewing all the facts disclosed by the evidence, we think they argue only that there is room for honest difference of opinion as to whether or not there was in fact a substantial different measure of value applied to the bank stock of appellant than to other property in the county taxable for the year 1913. Plainly, there is no proof of actual fraud on the part of the assessor, and we think the claimed difference in valuation is not so clearly established as to enable a court of equity to say that there was constructive fraud as against the rights of appellant in fixing the valuation of its bank stock. Hillman's Snohomish County L. & R. Co. v. Snohomish County, 87 Wash. 58, 151 Pac. 96; Heuston v. King County, 155 Pac. 773. The judgment is affirmed. MORRIS, C. J., and HOLCOMB, MAIN, ELLIS, BAUSMAN, and FULLERTON, JJ., concur. (91 Wash. 553) VAUGHAN et al. v. FIFER. (No. 13455.) (Supreme Court of Washington. June 16, 1916.) 1. LOGS AND LOGGING 26(3)-LABOR LIEN ON LUMBER-REMOVAL FROM MILL-"AT THE MILL." Where lumber had been piled at defendant's spur near manufacturer's mill under a contract of sale which required the manufacturer to perform other acts before sale and delivery "at the mill" so as to entitle laborers to their were completed, held, that lumber remained lien thereon as provided by Rem. & Bal. Code, § 1163. [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. § 61; Dec. Dig. 26(3).] LOGS AND LOGGING 26(3)—LABOE LIEN ON LUMBER-REMOVAL FROM MILL. 2. The mere passing of title to lumber under contract of sale does not deprive laborers of their lien thereon for labor in manufacturing where such lumber remains at the mill. such lumber, under Rem. & Bal. Code, § 1163, [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. § 61; Dec. Dig. 26(3).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. LOGS AND LOGGING 29 LABOR LIENS- the first part contracts to purchase from the ENFORCEABLE OUT OF ANY OR ALL PROP ERTY. Under Rem. & Bal. Code, § 1175, providing that a lien authorized by Rem. & Bal. Code, & 1163, for labor in manufacturing lumber may be enforced out of the whole or any part of the material upon which labor was performed, a lien should not be reduced in amount because it might have been satisfied in part out of other material. party of the second part, and the party of the second part contracts to sell to the party of the first part, one million two hundred thousand feet dimension No. 1 common lumber, 2x4 to 2x12, 12 to 24 feet in length at $6.50, f. o. b. the mill of the party of the second part, the same being located at Mays, Washington. "It is agreed that the width and lengths of said lumber shall be as follows: * "It is agreed that the party of the second [Ed. Note.-For other cases, see Logs and part will furnish the same at not less than 150 Logging, Cent. Dig. 88 75-79; Dec. Dig. M. a month and pile the same on lateral No. 1, 29.] S. E. 4 of S. E. 14 of Sec. 4, Twp. 13, N., range 4, and mark the piles forthwith, 'Property of L. R. Fifer Lumber Company,' and execute a bill of sale for the said lumber as soon as cut, and the party of the second part agrees to surface the said lumber and load the same upon the demand of the party of the first part in amounts as designated by the party of the first part, without any other charge whatsoever. Department 2. Appeal from Superior Court, Lewis County; A. E. Rice, Judge. Action by George Vaughan and others against L. R. Fifer. From a judgment for plaintiffs, defendant appeals. Affirmed. Walter Metzenbaum and S. H. Kelleran, both of Seattle, for appellant. Albers & Allen, of Chehalis, for respondents. PARKER, J. The plaintiffs, Vaughan and 41 others, commenced this action in the superior court for Lewis county seeking foreclosure of liens claimed by them upon certain lumber which by their labor they assisted in manufacturing while employed by the BakerMay Lumber Company at its mill at Mays, in Lewis county. The defendant, Fifer, doing business as L. R. Fifer Lumber Company, was made a party to the action because of his claim of title to the lumber sought to be foreclosed upon and because of his claim that the lumber was removed from the mill where manufactured before filing of the plaintiffs' several claims of lien in the office of the auditor of Lewis county. The trial of the case in the superior court resulted in decree of foreclosure in the plaintiffs' favor, from which the defendant has appealed to this court. That the respondents by their labor assisted in manufacturing the lumber in question while employed by the Baker-May Lumber Company at its mill seems not to be questioned here. Nor is the sufficiency of their claims of lien filed in the office of the auditor of Lewis county questioned as to their form or substance. Each of respondents claims under the provisions of section 1163, Rem. & Bal. Code, reading as follows: "Every person performing work or labor or assisting in manufacturing sawlogs and other timber into lumber and shingles, has a lien upon such lumber while the same remains at the mill where it was manufactured, or in the possession or under the control of the manufacturer. * Appellant rests his title to the lumber as against the claims of respondents upon the following contract and the alleged removal of the lumber from the mill in pursuance thereof: "This agreement, entered into by and between L. R. Fifer, sole trader, doing business as L. R. Fifer Lumber Company, party of the first part, and Baker-May Lumber Company, a corporation, party of the second part, this 7th day of April, 1915, witnesseth that the party of "It is understood and agreed between the parties hereto that title to the said lumber vests in the party of the first part as soon as the same is piled in the piles as designated heretofore. "That the party of the first part advances to the party of the second $3,000, receipt of which is acknowledged by the party of the second part, the same to apply on the lumber manufactured under this contract by the party of the second part, and it is specifically understood that the said $3,000 shall apply upon the first lumber manufactured by the party of the second part to an amount aggregating $3,000 in value. It is agreed that after the said $3,000 is consumed in the payment of lumber so cut the party of the first part will purchase the remainder of said lumber as follows: $4.00 per M. when the lumber is piled as designated heretofore, and the balance of $2.50 per M. is to be paid upon the receipt of invoice and bills of lading. * "That the party of the second part further contracts, with his wife, to mortgage to L. R. Fifer an undivided one-half interest in the following described real estate: S. E. 14 of section Oregon-the said mortgage being intended to 14, Twp. 23, range 6 west, Douglas county, secure the party of the first part from any loss or damage that may occur from liens upon the said lumber or any failure to cut the lumber of the grade, quality, or dimensions as designated by the party of the second part, or for any other damage that may arise because of the breach of this contract on the part of the party of the second part is compelled to sue, the party of the second part. In the event that any recovery he may obtain by reason of such a suit shall carry with it an attorney's fee of $100 in favor of the party of the second part." We have italicized the portions of this contract to which we will presently call particular attention. A few days prior to the signing of this contract the mill company leased to appellant the lateral mentioned in the contract on which the lumber was to be piled as manufactured. This was the lateral of the lumber company closest to its mill, it having other laterals on which it piled its lumber as manufactured farther away from the mill, and was unquestionably "at the mill" within the meaning of those words as used in section 1163. Rem. & Bal. Code, above quoted, unless the piling of lumber thereon is to be considered a removal of it from the mill because of the lease of this lateral to appellant. The lumber in question was manufactured between April 12 and May chaser a bill of lading in usual form by the terms of which the railway company was to transport the shingles to the state of Missouri. The car so loaded was left a short time on the switch very close to the mill where the shingles were manufactured, and, so far as its mere physical location was concerned, it might be said that it was "at the mill." It was held, however, that in view of the mill company having loaded the car, caused it to be closed and sealed, and a bill of lading having been issued to the purchaser of the shingles by the railway company, they were in law no longer "at the mill" nor "under the control of the manufacturer." Here again we have a case where the sale was completed and every act incident thereto required of the mill company was performed. 25, 1915, on which latter date the mill way company issued to the defendant purceased to operate because of the insolvency of the company, and it passing into the hands of a receiver appointed by the federal court. As the lumber in question was manufactured it was piled on the leased lateral, and as each pile was completed there was plainly stenciled thereon the words "Property of L. R. Fifer Lumber Company." At the time the mill ceased to operate there was piled and stenciled on the leased lateral some 228,000 feet of lumber. This lumber, it seems, is substantially all of the lumber at or near the mill now available to satisfy respondents' liens, though there was other lumber at the mill which we may assume was subject to their liens, but which lumber has since been disposed of in the bankruptcy proceedings. No bill of sale was executed by the lumber company to appellant as provided in the contract. It is not claimed that appellant has ever demanded that the lumber be loaded upon cars, nor that it be surfaced, nor has appellant waived these required duties of the lumber company, which are yet to be performed incident to the sale of the lumber by the lumber company according to the terms of the contract. The principal contention of counsel for appellant is that this lumber has been removed and was not "at the mill" nor "under the control of" the lumber company at the time respondents filed their liens, within the meaning of section 1163, Rem. & Bal. Code, above quoted. Counsel for appellant call our attention to and rely particularly upon three decisions of this court which we will now notice. In Swartwood v. Red Star Shingle Co., 13 Wash. 349, 43 Pac. 21, liens of laborers assisting in the production of shingles was in volved. The court there found that the shingle company had sold the shingles upon which the plaintiffs were attempting to enforce their liens. The defendant, purchaser from the shingle company, took possession of the shingles, removed them from the mill where manufactured to a shipping warehouse on the railroad about a quarter of a mile from the mill, the shingle company having executed and delivered to the defendant a bill of sale for the shingles, which was duly recorded. There was nothing whatever left for the shingle company to do incident to the sale. Upon these facts it was held that the shingles were no longer "at the mill" nor "under the control of the manufacturer," and hence no longer subject to labor liens. In Judge v. Bay Mill Company, 18 Wash. 269, 51 Pac. 378, which is the case most strongly relied upon by appellant, the contract of sale to the defendant purchaser called for delivery of shingles on board a car which was placed upon the railway company's switch near the mill, and the mill company loaded the shingles thereon, when the car was closed and sealed, and the rail In Akers v. Lord, 67 Wash. 179, 121 Pac. 51, we have a situation not materially different from that involved in the Judge Case. It was, however, manifestly less favorable to appellant's contention, in that the lumber involved was delivered to the railway company some distance from the mill. [1] We are constrained to hold that these decisions are not controlling here in view We have seen that of the facts of this case. by the terms of the contract relied upon by appellant his purchase of the lumber was to be evidenced by "bill of sale for said lumber as soon as cut"; the contemplated sale was to be "£ o. b. the mill"; the lumber was to be not only loaded, but also surfaced by the lumber company upon demand of appellant in amounts as designated by him; appellant was to receive a mortgage to secure him from "damages that may accrue from liens upon said lumber"; and evidently the final invoice and bills of lading to be issued upon the loading of the lumber for shipment were to be the final acts to be performed by the lumber company. These duties to be performed by the lumber company under the contract not being performed, and not being waived by appellant, lead to the conclusion that the sale and delivery of the lumber had not been perfected to that extent that it became removed from the mill in law, so as to prevent the liens of laborers assisting in its manufacture attaching to it. [2] We have not lost sight of the provision of the contract which declares that the title to the lumber vests in appellant as soon as the same is piled and stenciled. Recurring to section 1163, however, we find that the mere passing of title as between the mill company and appellant is not necessarily a controlling fact as to respondents' lien rights. The fact remains that this lumber was still physically at the mill, even nearer to the mill than the lumber company's own lumber, and that the mill company had further duties to perform incident to the sale of the lumber. In other words, the contract was still executory, notwithstanding as between the lumber company and appellant the title to the lumber may be regarded as having passed up- | C. D. Hillman and wife. Judgment for plainon its piling upon the leased lateral. tiffs, and defendants appeal. Affirmed. Gay & Kelleran, of Seattle, for appellants. Byers & Byers, of Seattle, for respondents. FULLERTON, J. On July 7, 1913, the respondents and the appellants entered into a written agreement for the mutual exchange of certain properties. The agreement described the property to be exchanged in detail, provided that the title to the several properties should be passed by deeds and assignments on the day following the execution of the contracts, that abstracts to the title to the real property to be exchanged should be furnished within ten days there We are of the opinion that under all the facts shown the lumber in question was at the time of the filing of respondents' claims of lien "at the mill" within the meaning of those words as used in section 1163, Rem. & Bal. Code, above quoted, and that therefore respondents' lien rights attached thereto. [3] Some contention is made in appellant's behalf that the lien claims of respondents should in any event be reduced in amount, because, as counsel claims, a considerable portion of the amounts due respondents could have been satisfied out of other lumber at the mill, which other lumber seems to have been disposed of in the bankruptcy proceed-after, and that each party should cure any ings. This contention, we think, is fully answered by the provision of section 1175, Rem. & Bal. Code, reading as follows: defect in the title to the property conveyed by them that should be shown in the abstracts. The agreement also contained the following recital: "It is agreed that both parties hereto have personally examined and inspected the respective properties received by such parties in this exchange, and each party hereby declares himself satisfied from such personal inspection and examination as to the quality of the property to be conveyed and delivered to him under this faction and approval of such property from such agreement, and hereby acknowledges his satispersonal examination, inspection, and approval." The title deeds, bills of sale, and assignments necessary to pass the title to the properties as agreed upon were exchanged on the day agreed upon, and the abstracts also were delivered within the time specified in the agreement, and some defects discovered in the titles were corrected. During the course of the investigation, however, the respond We conclude that the trial court correctly disposed of the rights of the parties, and that its judgment and decree must be af-ents conceived that they had been overreachfirmed. It is so ordered. ed and defrauded in the transaction, and thereupon sought a rescission of the agreement with the appellants. The appellants MAIN, HOLCOMB, and BAUSMAN, JJ., refused to make a rescission, whereupon the concur. (91 Wash. 490) GORDON et ux. v. HILLMAN et ux. (No. 12186.) (Supreme Court of Washington. 1916.) June 16, FRAUD EXCHANGE OF PROPERTY ~8(4) [Ed. Note.-For other cases, see Exchange of Property, Cent. Dig. § 17; Dec. Dig. 8(4).] Holcomb, Main, Chadwick, and Parker, JJ., dissenting. En Banc. Appeal from Superior Court, King County; Everett Smith, Judge. Action by E. M. Gordon and wife against respondents, on July 24, 1913, began the present action to enforce rescission. Recovery was had by the respondents after an extended trial, and this appeal is from the judgment entered. The errors assigned by the appellants which present questions of law relate principally to the admission of evidence thought to be incompetent. It is claimed, for example, that evidence tending to impeach and vary the terms of the written contract was admitted, and particularly is it objected that the respondents were permitted to deny that they had examined the property agreed to be received in exchange by them, and that they were satisfied as to the quality and value thereof. But the contention overlooks the fact that the respondents alleged that the procuring of this contract was a part of the scheme to defraud them of their property. Under such an allegation it was competent to show all of the circumstances surrounding the transaction-oral promises and agreements contradicting and varying the writing as well as all the other matters-not for the | maker for a sum exceeding $100,000. Anothpurpose of showing a different contract from that actually entered into, but for the purpose of showing the contract actually entered into to be fraudulent and void. The pertinency of the evidence particularly objected to is made clear by a simple recital of the facts. The respondents had not at the time of the execution of the contract examined all nor any considerable part of the property they were to receive in exchange as to its "quality and value," or otherwise-a fact which the appellants well knew at the time they insisted that a clause to that effect should be inserted in the contract. Clearly under such circumstances the recital does not estop the respondents from showing the fraudulent nature of the contract. Objections made to certain other parts of the evidence are more pertinent; this because the evidence had no bearing upon the issues. But the admission of incompetent evidence in a cause tried by the court sitting without a jury is not a cause for a new trial, nor a ground for reversing the judgment entered and directing a judgment for the other party. Cases of this sort are triable here de novo, and can be reversed or modified only when the evidence properly in the record fails to sustain the judgment entered. The court discards the improper evidence and determines the cause from that which it deems pertinent to the inquiry. The ultimate question in the present record therefore is: Does the evidence pertinent to the inquiry sustain the judgment of the trial court? er was for $30,000 secured by a mortgage on certain lots in an addition to Seattle known as the Meadow Gardens tract. These lots were once owned by the appellants. They had conveyed them to one Hazen Chase at "trade prices," taking a mortgage back for the entire purchase price. Chase on making the purchase ḥad expected to sell the lots to individual purchasers at a price in excess of the trade price, and thereby make a profit for himself. This scheme he had long since abandoned. The mortgaged property represented the only value the note had, and this the evidence abundantly satisfies us was grossly disproportionate to the amount of the note. Of the real property transferred from the appellants to the respondents none was improved, or income-bearing, and none of it had any definite or fixed market value. Its value as a whole the evidence does not make very clear, but enough is shown to convince us that it bore no reasonable ratio to the value fixed upon it for the purposes of exchange, or to the value of the property given in exchange for it. We think also that the evidence makes it clear that the respondent having charge of the negotiations was acting under a misapprehension as to the effect of his acts when he signed the contract and made the exchange of conveyances. It seems to us that he thought that these were only tentative arrangements, that the papers were to go in escrow, and that the final consummation of the deal was to take place when the abstracts were furnished and the title and values of the property were examined and approved, and, further, that had it been made known to him that these several acts were in themselves a consummation of the transaction he would not have signed the contract nor delivered over the conveyances. Passing to the question of the sufficiency of the evidence, its perusal leaves no doubt in our minds of the fact that the respondents were grossly overreached in the transaction, and this because of the false representations of the other parties. The trade as measured by the values put upon the properties by the respective owners was of considerable magnitude. The respondents' property for the great-exercised that degree of diligence in the proer part consisted of improved income-bearing property, situated in or near the business district in the city of Seattle, and had an immediate as well as a prospective value. It The more difficult question is whether he him to exercise before he can be heard to tection of his rights which the law compels complain of having been overreached and defrauded. But on this question also we are inclined to follow the conclusion of the trial was incumbered for some $60,000, and, while the respondents' valuation of $125,000 in ex-in some respects as guileless in its simplicity court. The conduct of the respondent was cess of the incumbrance may have been exas would be that of a child. But the fact aggerated, other evidence in the record makes remains that he and his corespondent would it clear that it had a considerable margin of be grossly defrauded if the exchange he value in excess of the incumbrance, possibly agreed to make should be consummated. an excess of $60,000. The property given in exchange by the appellants consisted of notes And, while it is true the law does not look with favor upon improvidence and negliof the face value of $60,000, lots in sundry additions in the suburbs of the city of Se-gence, it looks with much less favor upon attle valued at $35,000, certain tidelands at that species of avarice which seeks to gain Olympia, of which the appellants held only by preying upon improvidence and neglicontracts of purchase, valued at $25,000, and certain logged off lands in Thurston and Mason counties valued at $10,000. The notes were shown to be of little or no value. One of them was for $27,000, was practically unsecured, and a judgment existed against its 158 P.-7 gence. This especially is the rule of the more modern cases. False representations accompanied with unconscionable gains are held remediable, even though the victims of the representations may not have exercised all of the diligence once thought neces |