midst of workmen who were rightfully in the building, and that it could do so without liability for the negligence of its employé in running the elevator in such a manner as to injure a workman whom he knew to be rightfully and necessarily in the shaft. The judgment is reversed, and the cause remanded for a new trial.

DUNBAR, C. J., and CHADWICK, J., con

cur.

(63 Wash. 271)

KING V. LISTMAN et al., Civil Service
Com'rs.

(Supreme Court of Washington.

April 24,

1911.) MUNICIPAL CORPORATIONS (§ 185*)-POLICE OFFICERS REMOVAL-GROUNDS.

On expiration of a temporary office of police captain, the incumbent became subject to reassignment to a sergeancy, and his refusal to accept such reassignment warranted his removal from the force.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 185.*]

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Jack King against George P. Listman and others, Civil Service Commissioners of the City of Seattle. From an order in favor of defendants, plaintiff appeals.

Affirmed.

Thos. H. Bain and Smith & Cole, for appellant. Scott Calhoun, H. D. Hughes, and C. B. White, for respondents.

PER CURIAM. On May 3, 1909, the city of Seattle, by ordinance, provided for a temporary increase in its police department to meet an emergency then existing. The ordinance provided for the appointment of one captain, three sergeants, and thirty-six patrolmen, to serve for a period of five months. One L. J. Stuart was appointed to the temporary captaincy so created, and served until about the middle of August, 1909, when he was made a permanent captain of the police force. On August 20, 1909, the appellant, who was then a sergeant on the regular police force, was appointed to all the vacancy created by the promotion of Stuart. His appointment was designated in the order as a temporary appointment to fill out an unexpired term of two months and five days. Before the expiration of the term fixed in the original ordinance, the city council by another ordinance extended the time of the appointment until January 1, 1910. On December 29, 1909, the chief of police of the city of Seattle ordered the appellant to report for duty as a sergeant, and filed a report with the civil service commission of the city of Seattle, notifying that body that he had separated the appellant from his duties as captain, assigning as his reason that the posi

tion was not provided for in the 1910 tax levy. On January 7, 1910, the chief of police further notified the commission that he had separated the appellant from further duty in the police department, giving as his reasons "insubordination; refusing to don a sergeant's uniform and perform a sergeant's duty." Later on, pursuant to the rules of the civil service department, the appellant demanded a hearing before that body on the legality of the orders of the chief of police. The hearing was granted, and the appellant was heard in person and by counsel, whereupon, on February 1, 1910, the civil service commission entered an order sustaining and confirming the acts of the chief of police.

On March 10, 1910, a writ seeking a review of the order of the civil service commission was granted by the superior court of King county, returnable March 25, 1910, at which time the corporation counsel of the city of Seattle appeared and moved to quash the writ. This motion the court sustained, and this appeal was taken therefrom.

The appellant contends that there was no sufficient legal reason assigned for the order of the chief of police of December 29, 1909, by which he undertook to reduce the appellant from the rank of captain to that of a sergeant of police, and hence the order of the civil service commission is reviewable in the courts under the authority of Price v. Seattle, 39 Wash. 376, 81 Pac. 847. But we think there was a sufficient legal reason. The office of captain which he was filling was a temporary creation, and expired by its own limitation upon the day he was ordered to report for duty as a sergeant. The appellant by reason thereof and by operation of the police regulations resumed his former relations to the police department. He was thus subject to be assigned a duty in his resumed relation, and when he refused to perform that duty could be dealt with for insubordination. The reasons assigned for the removal being legally sufficient, the court will not inquire into the facts. The order appealed from is affirmed.

(63 Wash. 273)

JOSEPH MAZZINI SOCIETY v. CORGIAT. (Supreme Court of Washington. April 24, 1911. On Petition for Rehearing, June 9, 1911.)

1. APPEAL AND ERROR (§ 1011*)-FINDINGSCONCLUSIVENESS.

Findings on contested facts will not be disturbed on appeal.

Error, Cent. Dig. § 3983; Dec. Dig. § 1011.*} [Ed. Note.-For other cases, see Appeal and 2. CONTRACTS (§ 189*)-CONSTRUCTION.

Under an agreement to pay all costs and expenses of a mandamus proceeding between plaintiff and a third party, defendant was not liable for the costs and expenses of litigation between plaintiff and its attorneys regarding the fees.

[Ed. Note. For other cases, see Contracts, Dec. Dig. § 189.*]

An original promise to pay attorneys' fees in a suit between third parties is not within

the statute of frauds.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. § 23.*] 4. CHAMPERTY AND MAINTENANCE (§ 4*)CONTRACTS.

An agreement by defendant, the president and executive head of plaintiff, a fraternal organization, to pay the expenses of litigation between plaintiff and a member, in which litigation he also was a defendant, was not champertous and void as against public policy. [Ed. Note.-For other cases, see Champerty and Maintenance, Cent. Dig. § 4; Dec. Dig. $ 4.*]

Department 2. Appeal from Superior Court, King County; R. H. Lindsay, Judge

Walter A. Keene and Faben & Kelleran, for appellant. McBurney & Cummings, H. McBillingsley, and C. C. Cutler, for respondent.

PER CURIAM. The respondent is a fraternal organization, and the appellant was at one time its president. While he was so acting, John Cicoria was expelled from membership in the society, and thereupon commenced mandamus proceedings to obtain reinstatement, making appellant, the society, and its secretary defendants. Cicoria was successful in this proceeding, both in the court below and upon the appeal here; the case being reported as State ex rel. Cicoria v. Corgiat, 50 Wash. 95, 96 Pac. 689. The theory of the present case is that, while the mandamus proceeding was pending in the court below, the society did not wish to incur any expense in its defense, other than the sum of $125, which had been originally authorized, regarding it as in the nature of a personal controversy between Cicoria and Corgiat, in which the society, or its membership as a whole, was not interested; that Corgiat, in order to induce the society to continue in the defense of the mandamus proceedings, agreed that he personally would pay all cost and expense, and would indemnify the society against any further cost and expense than the sum of $125; that, relying upon this promise of Corgiat's the society permitted him to represent it in the defense in the court below and upon the appeal to this court. The costs and expenses of that proceeding, other than the sum of $125, amounted to the sum of $192.24, in which sum judgment was taken against the society and collected, and a further cost of $24 incurred. Thereafter, the society refusing to pay the attorneys employed in the defense of the mandamus proceedings, they brought suit to recover their attorneys' fees, resulting in a further

$904.80, which was paid, and an expense of $225 incurred in the defense of that suit. These several items, aggregating $1,346.04, the society sought to recover from Corgiat upon his agreement made in the original mandamus proceedings, and, being successful in the court below, Corgiat appeals.

[1] The findings of the trial court, being made upon contested facts, will not be disturbed; our only inquiry being as to whether the items included by the court in its judgment are correctly chargeable against appellant under his agreement.

[2] The agreement as found by the court. was to pay all costs and expenses of the mandamus proceedings. That was the only action then pending, and the only action, either at law or in equity, within the contemplation of the parties in which there was any likelihood or probability of legal expenses being incurred. Assuming, then, as found by the trial court, that Corgiat bound himself to pay these costs, he could not under such a promise be held liable for the costs and expenses of the litigation between the society and its attorneys. The fees of the attorneys were earned in the mandamus suit, and hence properly charged against appellant as expense of that litigation; but the item of $225 was not costs of the mandamus suit, nor incurred in any defense of the mandamus suit. It could not, therefore, he charged against appellant upon his promise to pay the costs and expense of that suit.

[3] Appellant raises one law point in contending that Corgiat's promise, if made, was void under the statute of frauds. The promise made, as found by the trial court, was an original promise, and not a collateral undertaking, and hence not within the stat

ute.

[4] It is also contended in this connection that the promise is void as against public policy, and is in fact champertous. It cannot be so held. It was not an officious intermeddling with litigation, actuated either by a spirit of stirring up a controversy or from a desire to share in its probable fruits. Appellant was himself a defendant. He was, in addition, the president of the society, its executive head, and as such had a personal interest in the litigation which would, as against public policy, support any promise he might make as to its expense.

Finding no error in law and none in fact, save the wrongful charge of $225 against.appellant, the judgment is modified so as to exclude the $225 item. Otherwise it will stand, and the cause is remanded, with instructions to modify as herein suggested. Costs to respondent.

On Petition for Rehearing.

PER CURIAM. Petition for rehearing has been filed in this case, calling attention of the

(63 Wash. 280)

O'CONNELL v. ARAI et al. (Supreme Court of Washington. April 24, 1911.)

1. LANDLORD AND TENANT (§ 291*)-NOTICE TO PAY RENT OR QUIT-SERVICE. A tenant has the right to stand on the proof of the exact service required by statute of a notice to pay rent or quit.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 1225; Dec. Dig. § 291.*] 2. ACCORD AND SATISFACTION (§ 9*)-SUFFICIENCY OF EVIDENCE.

Where there was no dispute as to the amount of rent due, but defendant, claiming a reduction because of the building of a sidewalk rendering the premises temporarily inaccessible, sent a check for less than the rent, the letter inclosing the same not stating, however. that if the claim was not allowed the check should be returned, the acceptance of the check by plaintiff did not constitute an accord and satisfaction.

[Ed. Note.-For other cases, see Accord and Satisfaction, Cent. Dig. §§ 88-91; Dec. Dig. § 9.*]

3. LANDLORD AND TENANT (§ 291*)-UNLAWFUL DETAINER-DAMAGES-STATUTORY PRO

VISIONS-WAIVER.

entered into a written modification of the original. In the modification it was agreed that the plaintiff might have such time as was most convenient to adapt the premises to the regrade, and until that was done the rental was reduced to $600 per month. On June 1st, when the rent for that month became due, the attorneys for the defendants wrote a letter to the plaintiff, claiming a further reduction of rent in the sum of $140 because, as stated in the letter, certain stores on the premises were obliged to suspend business for a period of 10 days while a temporary walk was being built. This letter closed by saying: "You will find check inclosed for $460 rent for the month of June, 1910, the balance of $140 being retained in satisfaction of the above claim." The plaintiff received this letter and cashed the check ter to the defendant Arai, denying his right for $460, and on June 17, 1910, wrote a letto make any deduction from the $600 rent due, and notifying him that, unless the $140 was paid by June 20th, proceedings would be taken to collect the same. Counsel for the defendants replied to the letter, saying that the acceptance of the $460 check constituted a settlement of the rent.

Thereafter, on June 20, 1910, the plaintiff caused a notice to be served upon the defendants, notifying them that the rent was due, and to pay the same within three days or quit the premises, and that upon failure to pay or quit they would be guilty of unlawful detainer under the statute. Defendants refused to pay rent due or to quit. Thereupon this action was brought, setting up the facts, and praying for the amount of rent due to the time of the judgment, that the rent be doubled, and that the lease be de

ful detainer.

filed, a bond in the sum of $2,000 was fixed

En Banc. Appeal from Superior Court, King County; John B. Yakey, Judge.

Action by W. L. O'Connell against T. Arai and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Fred H. Peterson and Philip D. MacBride, for appellants. F. C. Reagan, for respondent.

MOUNT, J. Action for unlawful detainer. Judgment was entered in favor of the plaintiff as prayed for in his complaint, and defendants have appealed.

issued. The defendants thereupon were permitted to give a counterbond in the sum of $4,000, and to retain possession of the premises pending the litigation, which they did. The defendants for answer denied that there was any rent due, and denied that notice had been served as alleged in the complaint, and also set up an affirmative plea of accord and satisfaction. Upon the trial of the case to the court without a jury, the court found the issues in favor of the plaintiff, and that the rent due at the time of the trial amounted to the sum of $3,740. The court thereupon entered a judgment for double the amount of rent due, and for possession of the premises, and declared the lease forfeited. The defendants have appealed from that judgment.