ing to do with the matter, these declarations were equivalent to saying that the stock alone would not be received if actually offered. There is ample justification to infer that the production of the certificates and their formal tender was waived. It was, therefore, unnecessary to offer the certificates themselves, as the law, under such circumstances, does not require a man to perform a nugatory act. Wesling v. Noonan, 31 Miss. 602; Hazard v. Loring, 10 Cush. 267; 7 Wait, Act. & Def. 593; Ashburn v. Poulter, 35 Conn. 553.

We cannot uphold the contention of appellant that plaintiff had lost her right to reimbursement by having transferred 25 shares of the stock to her husband before the year had expired. One share of stock was as good as another. She was evidently willing to transfer 2,500 shares, and there is nothing to show that she was not fully able to transfer 2,500 shares, as required by the contract, the instant that defendant would comply with his part of the agreement. Eames v. Haver (Cal.) 43 Pac. 1120. The identical shares originally made over to her were not necessarily the only shares which she could return to defendant. As said, one share was as good as another, and represented the same interest in the property. Colby v. Stevens, 38 N. H. 191; Thompson v. Lyon (W. Va.) 20 S. E. 812; Park v. Wiley, 67 Ala. 310.

But if we concede that there was no waiver of formal tender before trial, still our decision may be safely put upon another ground. Upon the trial there was a formal tender of 2,500 shares, indorsed in blank, it appears, and a demand of the return of $2,500 paid for the stock. This was refused by defendant "on the ground that it is attached according to my information, and I want everything straightened up before I accept it." No objection was made to the sufficiency of the tender or to its form, except that the stock was attached, as defendant was informed. The defendant cannot now urge any reason for refusing the stock offered on the trial other than that expressly relied on. He is held to have waived the objections that plaintiff did not have the stock in her own name. Wood v. Babb, 16 S. C. 427; Lathrop v. O'Brien (Minn.) 58 N. W. 987; Whelan v. Reilly, 61 Mo. 565; Lawson, Rights. Rem. & Prac. § 2535: 2 Pars. Cont. 645; Thayer v. Meeker, 86 III. 470; Herberger v. Husman (Cal.) 27 Pac. 428. Our conclusion upon the whole case is that the plaintiff is entitled to the sum found to be due to her by the district court, and that upon payment of such sum defendant is entitled to 2,500 shares of stock tendered and left with the clerk of the court, and agreed to be transferred by plaintiff under the contract. Judgment affirmed. firmed.

Af

DE WITT, J., concurs. PEMBERTON, C. J., not sitting.

1896.) VOLUNTARY ASSOCIATION-TRUST RELATION-CREATION-EXTINGUISHMENT.

1. Where a voluntary association, organized to maintain the price of fish, appointed a committee to make sales thereof for all members, and such committee offered to dispose of all fish furnished by them, no trust relation arose in favor of the members jointly, in funds advanced to such committee on purchases of fish.

2. Where a voluntary association, organized to maintain the price of fish, appointed a committee which offered to sell all fish caught by the members, any trust relation which may have arisen in favor of the members jointly in funds delivered to a member of such committee in payment of fish was extinguished by a transfer of the money by such member in good faith and while acting as agent for the rest.

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by Edward P. Fournie, for himself and others, members of the Gray's Harbor Fishermen's Protective Union, against B. P. Shepard and N. W. Bush. From a judgment for plaintiffs, defendant Bush appeals. Reversed.

Bush & Coons, for appellant. Wm. O. MeKinley, for respondents.

HOYT, C. J. Many reasons are set forth in the appellant's brief for the reversal of the judgment entered in this action. Some are founded upon the rulings of the court upon questions raised on the allegations of plaintiff's complaint, and some upon questions which arose during the trial of the cause; but the conclusion to which we have come as to the merits of the plaintiff's claim, as made to appear from the whole record, makes it unnecessary for us to enter into details. Plaintiff, in behalf of himself and numerous other parties, sought to assert rights to certain moneys which it was alleged were held by the defendants in trust for them, and the only reason why it was claimed that their joint interest in the money could be asserted in a single action brought by the plaintiff for their benefit was that they were all members of what was known as the "Fishermen's Union." But it was nowhere alleged that such Fishermen's Union a corporation or a co-partnership, or that it had any legal existence whatever. On the contrary, facts were made to appear, both from the pleadings and proofs, which clearly showed that such union was a purely voluntary association, having no legal status whatever. It is true, there was testimony tending to show that they had combined for the purpose of maintaining the price of fish, and that a committee appointed for that purpose had agreed to dispose of all the fish which the several members of the union might catch; but, in the absence of some binding organization known to the law, no member of the union could have

was

been legally bound by the agreement so entered into. There might have been a moral obligation on the part of the several members of the union to abide by the arrangement between them, and on the part of the body collectively to adhere to the agreement entered into in behalf of the union by the committee; but, unfortunately for the claim of the plaintiff, the law has not yet reached that advanced stage where every moral obligation creates a legal liability. There was no joint contractual relation shown to exist between the one to whom the fish were sold and delivered and the members of the Fishermen's Union. The only legal obligation which was assumed by the one who so purchased the fish was to pay the owner for them either the agreed price or what they were reasonably worth, and there was no joint owner of the whole of the fish furnished by all of the members of the union. Either the fish became the property of the committee, and they liable to each of the fishermen for what they had furnished, or those furnished by each fisherman remained his property until delivered by the committee to the person to whom they were sold. In one case he would derive title from the committee, and be liable to it or its members for all of the fish; in the other to each fisherman for the fish furnished by him. In either case the transaction created no liability on his part to the Fishermen's Union for all or any part of the fish. Hence none of the money advanced or to be advanced for the purchase of the fish became the joint property of the members of the union, to be held in trust or otherwise by any person whatever. It follows that the trust which was sought to be enforced as to the money alleged to have been in the hands of the defendants did not, aud from the nature of the transaction could not, have existed. Besides, the undisputed proofs showed that, as between Johnson and Shepard, Shepard represented the Fishermen's Union, and, if he held this money in trust at all, held it adversely to Johnson and for the Fishermen's Union; hence in any settlement which he made with Johnson he would represent such union, and it would be bound by his action, unless there was a combination shown between him and Johnson to defraud the union. This being so, the settlement which was shown to bave been had between Shepard and Johnson by himself or through the agency of N. W. Bush was, in the absence of fraud, binding not only upon Shepard, but upon the Fishermen's Union, which he represented, and the money which through such settlement was obtained by Johnson, or by Bush as his agent, would thereafter be held adversely not only to Shepard, but also to the Fishermen's Union, and as there was an express finding by the court at the close of plaintiff's case that no fraud had been shown, it follows that, even if this money had been

so held by Shepard in trust for the Fishermen's Union, that such trust could have been enforced. in the courts against him, the trust character of the funds was lost when without fraud they were paid by Shepard to Johnson or to Bush as his agent. The undisputed proof showed that Shepard was acting for the Fishermen's Union as its agent, that Johnson made claim to the money in his hands, and that such claim was adverse to the claim of such union. Its adjustment without fraud would take from any funds which might by virtue of such adjustment have been paid to Johnson their trust character, and Johnson would hold them adversely to Shepard, and to the union, which he represented. For either one of the reasons above set out the undisputed proofs showed that the defendant N. W. Bush did not hold any funds which had come into his hands in trust for the plaintiff or his associates. The judgment will be reversed as to the appellant, and the cause remanded, with instructions to dismiss the action as to him. Appellant will recover his costs in both courts.

APPEAL

PAYMENT OF JUDGMENT EVIDENCE
REVIEW-OBJECTIONS WAIVED.

1. In an action on a judgment, the evidence showed that defendant wrote plaintiff, proposing to turn over certain real estate in satisfaction of it; that, in reply, plaintiff wrote that he had received from defendant's father a certain bond, which was larger than the judgment, and that he thought they were square. The bond was the plaintiff's own obligation, and amounted to a few dollars more than the judgment. Held, that the evidence supported a plea of payment. Hoyt, C. J., dissenting. 43 Pac. 330, reversed.

2. Where a party takes a number of special exceptions to instructions, stating the reasons and grounds therefor with particularity, he cannot, on appeal, urge other objections to the instructions.

SCOTT, J. This case is before us on a petition for a rehearing. For the prior opinion, see 13 Wash. 490, 43 Pac. 330, where we reversed the judgment rendered in the lower court, on the ground that there was no proof upon which the jury could have found that the judgment sued on had been paid. There after, being of the opinion that we had misunderstood the record in relation to such testimony, a rehearing was granted; and the cause has been reargued, and we have come to the conclusion that we were wrong in reversing the cause, believing that there was sufficient evidence to sustain a finding that the judg ment had been paid. This testimony is strung out through a number of pages of the record,

and so mixed up with objections and the argument of counsel that it was not fully understood at the time.

It appears that, after obtaining the judgment, the plaintiff wrote to defendant, who was then in this state, informing him of it, and asking the defendant what he was going to do about it; whereupon it appears that some further correspondence was had between the parties, and that the defendant proposed to turn over certain real estate in satisfaction of it, although he did not fully testify in relation to this matter, owing to an objection interposed by the plaintiff's counsel, which was sustained by the court. Continuing his testimony, the defendant said: "In reply to that letter, I got another letter. * In that letter, Edmunds said he had received from my father this bond of $1,500, the same, with interest, amounting to $1,525 or $1,530, which he stated was bigger than the judgment, and he thought we were square." It appears that this bond was the plaintiff's own obligation, and, at the time he received it, it amounted to a few dollars more than the judgment. In writing to the defendant about it, he said as much, and that he thought they were square. It seems to us that the only logical inference to be drawn from this testimony is that he had accepted the bond in payment of the judgment. It would have been a good counterclaim against him if the defendant had held it, but here we find that the plaintiff's own obligation was turned over to him by the defendant's father for the defendant, and received by the plaintiff, which at the time slightly exceeded the claim he held against the defendant; and the clear and legitimate conclusion to be drawn therefrom is that it could have been intended and accepted as nothing less than a payment, and, being more than the judgment, it fully paid it. Consequently, the plaintiff had no right of action, and the jury were justified in finding for the defendant.

All other questions raised by the appellant were disposed of contrary to his contentions in the former opinion, with one exception, and that is over an instruction given by the court to the jury, wherein the court, in referring to the judgment, made use of the expression, “If you find this judgment is shown to exist;" and it is contended that this was error, as it submitted the question of the existence of the judgment to the jury, whereas the defendant had expressly conceded that the judgment against him was established by the proofs. But it appears that the plaintiff took a number of special exceptions to the instructions, stating the reasons and grounds thereof with particularity, and none was taken upon this ground; and, even if we were of the opinion that the plaintiff was prejudiced by this instruction, under such circumstances it could not be urged as error. The court elsewhere in the instructions, however, substantially assumed that the judgment had been established, and that the question of payment was the one for the jury to consider. Affirmed.

ANDERS, DUNBAR, and GORDON, JJ.,

concur.

HOYT, C. J. The existence of the judg ment against the respondent having been conceded, it was incumbent upon him to introduce testimony at least tending to show that it had been paid; and since that which he did introduce tended to show that, if paid at all, such payment had not been in money, it was necessary for him to show, not only that property of value equal to the judgment had been received by the appellant, but also to show that, at the time such property was received, it was taken by the appellant in full payment of the judgment. And, in my opinion, there was no testimony which tended at all to show that the property which it was alleged had been received by the appellant had been taken by him as payment of the judgment. On the contrary, it affirmatively appeared that there had been nothing said or done by or between the parties at the time the property was delivered which tended to show that it had been accepted in payment of the judgment. I am therefore of the opinion that the respondent failed to introduce any evidence tending to show a fact which it was necessary for him to establish to overcome the prima facie case against him made by the introduction of the judgment in evidence.

(15 Wash. 88) PACKWOOD v. KITTITAS COUNTY et al. (Supreme Court of Washington. June 29, 1896.)

COUNTY INDEBTEDNESS-ELECTION TO VALIDATE -NOTICE-BONDS-PAYMENT IN GOLD.

1. The published notice of an election to validate county indebtedness, merely alleging that the election would be held on a certain day in a certain county of the state, without alleging the places in the different precincts at which it would be held, is sufficient, as voters are to resort for information as to the latter facts to the notices required by the general election law to be posted in the several precincts.

2. Municipal corporations authorized to issue bonds to fund their indebtedness, have implied authority to contract for payment of the bonds in gold, especially where, at the time the legislature granted such power, it was the custom to make such bonds so payable.

Appeal from superior court, Kittitas county; Carroll B. Graves, Judge.

of March 9, 1893, under which there had been an attempt to validate the warrants for which the funding bonds were to be issued; the invalidity of the act of March 22, 1895, which authorized the issuing of funding bonds: and the insufficiency of the election held for the purpose of validating the warrants, even if the act under which it was held was valid. The validity of the first of these acts was recognized by this court in the cases of Hunt v. Fawcett, 8 Wash. St. 396, 36 Pac. 318, and in Williams v. Shoudy, 12 Wash. St. 363, 41 Pac. 169. The objections to the other are not clearly pointed out, and we see no reason for holding that it is not in full force. The regularity of the election proceedings for the validation of the same warrants which are involved in this action was also passed upon in the case of Williams v. Shoudy, supra, and a conclusion reached adverse to the contention of appellant; but the particular ground upon which the appellant in this action principally relies was given but slight consideration. The main contention of appellant in the case at bar is that the election proceedings were invalid, for the reason that no sufficient notice was given of such election. The alleged insufficiency in the notice consists in the fact that it was not stated therein at what place or places the election would be held,-the only statement as to time and place being that on the 8th day of November, 1894, in the county of Kittitas, state of Washington, such election would be held; and it is claimed that the failure to state in the published notice the places at which the election would be held rendered the notice insufficient. But we are of the opinion that the law did not contemplate that more than a general notice as to when the election would be held throughout the county should be published; that it was intended that voters should resort to the notices required by the general election law to be posted in the several precincts to ascertain where in each precinct the election would be held We see no reason to doubt the correctness of the decision in the case above referred to, to the effect that this election was sufficient for the purposes for which it was held.

One other fact was alleged which, it was claimed, would make the proposed issue of bonds illegal. It was that, under the terms of the contract with the firm to whom the bonds were to be sold, they were to be made payable in gold coin, and it is claimed that, without express authority from the legislature, the county officers could not legally make such bonds so payable. But, in our opinion, such authority may be implied from the legislation upon the subject, though not conferred in express terms. When the legislature grants to a municipality the right to issue bonds, it necessarily leaves to such municipality much discretion as to the conditions of such bonds; and, excepting as it v.45P.no.8-41

is restricted by the terms of the act granting the authority, such municipality has discretion to issue such bonds as will best accomplish the general object to secure which their issue was authorized; and since such bonds must be payable in some kind of money, in the absence of express restriction, it is for the municipality to determine as to the kind of money. Besides, the legislation of this state, when interpreted in the light of surrounding circumstances, may well be held to have conferred express authority to issue bonds payable in gold. All legislation should be interpreted in the light of surrounding circumstances, and it was a wellknown fact at the time the legislation in question was enacted, which must be presumed to have been known to the legislature, that the bonds which had theretofore been issued by the municipalities of this state and territory were mostly, if not all, made payable in gold coin. Hence, when authority was given for a further issue of such bonds, without any restriction as to the kind of money in which they should be made payable, it may well be presumed that it was the intention of the legislature that the former custom should be followed, and the bonds made payable in gold. This question was before the circuit court for the district of Washington in the case of Moore v. City of Walla Walla, 60 Fed. 961, and it was there decided that municipalities of this state were authorized to issue gold bonds. To the same effect is Faison v. Board of Com'rs (Ky.) 30 S. W. 17.

No error is disclosed by the record which can avail appellant, and the judgment of the superior court will be affirmed.

ANDERS, DUNBAR, and GORDON, JJ.,

concur.

(15 Wash. 92) TAYLOR v. CITY COUNCIL OF TACOMA. (Supreme Court of Washington. June 29, 1896.)

OFFICER-PROCEEDINGS TO REMOVE-APPEAL.

Under Laws 1895, c. 65, § 34, providing that proceedings for the removal of a public official from office on the ground of misconduct shall be governed by the rules applicable to civil actions, a transcript on appeal in a proceeding under such act, which is not certified by the trial judge, is insufficient.

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Certiorari by M. M. Taylor to review the proceedings of the city council of the city of Tacoma removing him from office as a member of the board of public works. From a judg ment sustaining the action of the council, the applicant appeals. Affirmed.

Francis W. Cushman, Edward E. Cushman, and Charles Ethelbert Claypool, for appellant. John Paul Judson, W. H. H. Kean, and Stacy W. Gibbs, for respondent.

GORDON, J. This was a special proceeding instituted under chapter 65, Laws 1895, in the superior court of Pierce county, for the purpose of reviewing the proceedings taken by the city council of the city of Tacoma in removing the appellant from his position as a member of the board of public works of said city, said proceedings for removal having been based upon formal charges filed with said council in accordance with the provision contained in its freeholders' charter. Upon the hearing in the lower court it was stipulated by counsel for the respective parties that a purported transcript of the testimony and exhibIts taken and received upon the trial before the council (which transcript the appellant had prepared and attached to the stipulation) contained "all of the material evidence and testimony that was offered both by the prosecution and defense in the trial of M. M. Taylor before the city council of Tacoma,

not, however, waiving any right on the part of the defendant to object to the filing of the same or consideration thereof by the court of review." This purported transcript of the evidence taken before the council is brought to this court pursuant to the following order of the superior court, viz.: "Now, on this 4th day of March, 1890, it appearing to the court that the above-named plaintiff has appealed this said cause to the supreme court of the state of Washington, and that the transcript of testimony on file herein will be material for the review of said cause on appeal, it is hereby ordered that the original transcript of said testimony on file in this superior court may be used as a part of said record on appeal, and transmitted to the said supreme court. W. H. Pritchard, Judge." A motion has been made to strike the statement of facts herein, for the reason, among others, that "there is no certificate of the trial judge as to their authenticity or correctness," and we think the motion must prevail. Counsel for the appellant, in opposition to the motion, insist that "there is no provision in the act of 1895 *

re

quiring that the bill of exceptions should be certified to by any one, though there is no doubt that it should be regulated by statute or rule of court; but it has not been done." We are unable to agree with this insistment. Section 34, c. 65, Laws 1895, is as follows: "Except as otherwise provided in this act, the provisions of the Code of Procedure concerning civil actions are applicable to and constitute the rules of practice in the proceedings in this act." We see no reason why the bill of exceptions or statement of facts in this case could not have been settled as provided by sections 8, 9, and 11 of the act of March 8, 1893 (Sess. Laws 1893. p. 114), and we think that the procedure there provided for should have been followed. The order of the judge above set out does not meet the requirements of the certificate provided for by section 11 of the act of 1893, and we are unable to say from this record that the so-called "transcript" of the evidence received before the council con

tains "all the material facts" upon which a trial or a hearing of this cause proceeded in the lower court. We think that the charges upon which the appellant was tried and removed from office by the council of said city were sufficient to give that body jurisdiction, and it follows that the judgment appealed from must be affirmed.

HOYT, C. J., and DUNBAR, ANDERS, and SCOTT, JJ., concur.

(15 Wash. 83)

THORNE et al. v. JOY et al.

(Supreme Court of Washington. June 29, 1896.)

TRIAL BY COURT SUFFICIENCY OF FINDINGS MORTGAGE WITNESSES- TRANSACTIONS WITH DECEDENTS OFFER OF EVIDENCE COMPETENT FOR CERTAIN PURPOSES-REOPENING CASE-DISCRETION OF TRIAL COURT SUIT AFFECTING WRITTEN INSTRUMENTS- CHARACTER OF PROOF REQUIRED.

1 Where the decree is merely one of nonsuit, the fact that the findings of the court are indefinite, and fail to set out the special facts found to be established by the proof, is immaterial.

2. It is a general rule that a deed made for the purpose of securing a debt, and accompanied by a contemporaneous agreement for reconveyance of the property on payment of debt and interest, is, in legal effect, a mortgage.

3. In an action to cancel a mortgage given to defendants' intestate, a person not a party to the record, but who once owned an interest in the property, which he had conveyed to one of the plaintiffs by a deed, absolute in form, but accompanied by a contemporaneous agreement for reconveyance on payment of the debt due his grantee, is interested in the suit adversely to defendants, and hence cannot testify in relation to transactions with intestate.

4. Where the relief demanded against C., one of the defendants in an action to cancel a mortgage, was merely incidental to the principal object sought by the action against the mortgagee's executors, the testimony of plaintiffs as to an arrangement entered into at a meeting of all the parties, including decedent, was properly excluded, even as against C.

5. Testimony competent against only one of several defendants is properly rejected, unless the court is advised of the restricted purpose for which it is offered.

6. Reopening a case after the trial is closed and findings proposed is discretionary with the

court.

7. Where the object of a suit is to cancel a mortgage, only clear and satisfactory proof will justify a decree for plaintiffs.

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by Chester Thorne and others against Russell T. Joy and others to cancel a mortgage, and for other relief. From a decree dismissing the action, plaintiffs appeal. Affirmed.

Bogle & Richardson, for appellants. Stiles & Stevens. for respondents.

HOYT, C. J. The object of this action was to have a certain mortgage, which had been executed by the Tacoma Passenger & Baggage Transfer Company to secure an indebtedness of $18,000 to John W. Sprague,