66 Wash. 645 | Wash. | 1912
Appeal from a decree establishing loggers’ liens in favor of respondents. The court below made findings of fact, to which appellant took due exceptions. These findings are not printed in the brief, as provided for by the rules of this court, appellant giving as its reason for not doing so that it desires to raise questions of law only. These findings not being printed nor exceptions to them urged as error, we shall confine our review of the case to questions of law only.
The first error urged is that Mrs. Hunt is estopped from asserting any lien by reason of her general conduct in connection with the business affairs of the logging operations. It would require too much space to set forth all the facts under which this estoppel is claimed by appellant and denied by Mrs. Hunt. It is sufficient to say we can find no estoppel in the matters complained' of. Mrs. Hunt’s claim was partly for services as cook in the camp, and partly for the hire of two teams of horses owned by her.
Appellant’s second claim of error is that no lien will lie for the services of the teams, as no personal service was
It is next claimed that there is no competent evidence to establish the amount Mrs. Hunt is entitled to receive for the team working by the thousand. The findings are quite full upon this point, and as no exception is urged to them, we will assume there was competent evidence to establish the amount as found by the court.
The next error urges an estoppel on these facts: Mrs. Hunt received a check for $250 on January 29, 1910, from Wray, who was the logging contractor doing the work for appellant. This check was not presented at the bank for payment until March 10, when payment was refused for want of funds, Wray having decamped and exhausted his credit at the bank some time during the last week in February. Had this check been presented at the bank, it would have been paid at any time previous to the 25th of February.
The same situation is shown in Kunkleman’s case. He received four checks, which were not presented, in dates and amounts as follows: January 24, $50; February 10, $65; February 15, $20; February 26, $135. All of these checks
It is a well known equitable rule that, where one of two innocent parties must suffer a loss because of the act of a third party, the one whose act has made such loss possible must endure it. This rule is peculiarly applicable here. The act of Wray must occasion loss to either appellant or respondents. Respondents had it within their power to
We find no merit in the other assignments of error as to Kunkleman’s claim. In view of the failure to assert error in the findings, we are not disposed to make a critical review of' the evidence to ascertain if it sustains the findings. The decree is modified so that Mrs. Hunt’s lien will be reduced from $607.75 to $357.75, and Kunkleman’s from $363.40 to $228.40. In all other respects, the judgment is affirmed, and the cause remanded for further proceedings as herein indicated. Appellant will recover costs in this court.
Dunbar, C. J., Chadwick, Crow, and Ellis, JJ., concur.