The evidence does not show a conversion, and the action must, therefore, fail. The judgment is affirmed.

MOUNT C. J., and FULLERTON, DUNBAR, CROW, and ROOT, JJ., concur..

(43 Wash. 327)

NORTON et ux. v. SJOLSETH et al. (Supreme Court of Washington. July 31, 1906.) BROKERS-POWER TO SELL-REVOCATION.

Where defendants for a valuable consideration gave certain brokers the exclusive right to sell real estate in question for a period of seven days, such power was not a power coupled with an interest, and was revoked by notice given within the time and before a sale had been made, so that purchasers who bought after such revocation, though within the seven days, had no enforceable contract of sale.

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

Action by Harrison I. Norton and wife against I. J. Sjolseth and another. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

E. H. Guie, for appellants. Wright & Kelleher, for respondents.

HADLEY, J. This is an action for specific performance. Plaintiffs alleged that the defendants entered into an agreement in writing with the firm of Randall & Goodwin, whereby they engaged said firm as their agents to sell certain specified real estate in Seattle; that, for a valuable consideration, the exclusive right to sell the property was granted to said agents for the period of seven days from January 28, 1905, and the defendants agreed to cause the property to be conveyed by good and sufficient warranty deed to the person or persons designated by said firm; that said agents, in behalf of defendants, sold said premises to the plaintiffs on the 4th day of February, 1905, for the sum of $2,100 according to the terms specified in said written authority of agency; that on said day said agents informed the defendants of the sale, designated the plaintiffs as the persons to whom the property should be conveyed, tendered defendants the sum of $2,100, and requested the conveyance to the plaintiffs; but that defendants refused, and still refuse, to make such conveyance. The answer alleged that the written agreement as to the agency was signed by the defendants on Saturday, January 28, 1905, and that upon Monday, January 30, 1905, before any sale or contract of sale for the premises had been made, the defendants revoked and canceled said authority, and notified said agents thereof; that the plaintiffs, before agreeing to buy the property, had notice and knowledge of said revocation. The cause was tried by the court without a jury. The equities were found to be with the defendants, and judgment was entered to the effect that plaintiffs shall take

nothing by their action. The plaintiffs have appealed.

It is assigned that the court erred in deny. ing appellants the relief they ask. We think the judgment is sustained by the evidence. The defense was that the authority to sell was revoked before any sale was made, and we think there was ample evidence to sustain that contention. The contract as to the agency was made January 28th, and both respondents testified that, on January 30th they notified their said agents that they would not sell the property. The contract of sale alleged in the complaint as having been made to appellants by the agents was made February 4th. While the written authority to sell covered a period of seven days, and that time had not expired when the contract for sale was made, yet the revocation occurred before that time. As between the respondents and a purchaser they could revoke the power to sell before a sale was made. There was nothing contained in the contract with the agents by which respondents bound themselves not to revoke the power to sell within the seven days. It is true they granted their agents seven days within which to make a sale, and, as between the agents and themselves, they may have been bound to the agents for the payment of their compensation if the latter found a purchaser within the specified time. This, in any event, is conceded by respondents, and the record shows that they have paid the agents their commission. As between appellants and respondents the question presented here is merely one of power. The power to sell did not reside in the agents after it had been revoked. We think it sufficiently appears that appellants' immediate representative was advised of the revocation before the contract of sale was made February 4th. Before that time the agents, who had been notified that the respondents declined to continue the power to sell, attempted to get authority to sell the east half of the tract. Appellants' agent, who represented them in the attempted purchase, said of that: "I think likely I suggested it. I found out that there was difficulty about getting the title of their refusing to give this deed, and I made that suggestion." Under these circumstances appellants dealt with the agents, and they must be bound by the powers of the latter at the time the agreement to purchase was finally consummated. The authority of the agents did not create a power coupled with an interest so as to make it irrevocable. It is an interest in the subject on which the power is to be executed, and not an interest in that which is produced by the exercise of the power that makes a power coupled with an interest. "The power must be engrafted on an interest in the property on which the power is to be exercised, and not an interest in the money derived from the exercise of the power." State ex rel. Walker, v. Walker, 88 Mo. 279. See, also, Chambers v.

Seay, 73 Ala. 372; Shisler's Estate, 13 Pa. Co. Ct. R. 513; Brown v. Pforr, 38 Cal. 550. The last-cited case is in essential particulars like the one at bar. The court observed as follows: "Counsel find the alleged restriction upon the defendant's power of revocation in the words by which the time within which the plaintiffs are required to perform is limited to one month from the date of the contract; but, as it seems to us, the restriction is upon the power of plaintiffs, and not upon that of the defendant. It seems obvious to us that the restriction was intended for the benefit of the defendant, and not the plaintiffs. The force of the limitation is that the defendant will pay them the stipulated price for the service if they completely perform it within one month; otherwise he will pay them nothing. There is nothing directly or impliedly affecting the question of revocation, and, indeed, we are unable to perceive how, under any circumstances, a mere limit as to the time allowed for the performance of contract of agency to sell land, can be construed into an agreement on the part of the principal not to revoke the power."

"We think from the record before us that the court did not err in refusing to decree specific performance, and the judgment is affirmed.

Under Pierce's Code. §§ 477, 490, 900-904 (Ballinger's Ann. Codes & St. $$ 5428, 5438, 5315-5319), relative to procedure in supplementary proceedings, an injunction issued in supplementary proceedings without notice of application there for and without any showing of an emergency requiring its issuance without notice, naming no return day, and without the giving of any bond, is absolutely void.

[Ed. Note. For cases in point, see vol. 21, Cent. Dig. Execution, § 1141.Ĵ

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by W. F. Meier, as receiver, against the Fidelity National Bank. From a judgment for defendant, plaintiff appeals. Affirmed.

Samuel R. Stern, for appellant. Happy & Hindman, for respondent.

ROOT, J. This appeal is from a judgment entered in favor of the respondent against appellant dismissing the action upon appellant's failure to plead further after the court had sustained a demurrer to the amended complaint. The material facts appearing in the complaint were about as follows: The Sprague General Supply Company, on Febru

ary 13, 1904, recovered a judgment against one A. F. Narver for $774.92, upon which execution ran, certain property was sold, and the proceeds applied, leaving a balance of $331.36 unsatisfied. Payment of said balance was demanded of Narver, who refused to pay. Thereupon proceedings supplemental to execution were instituted under section 908, Pierce's Code (Ballinger's Ann. Codes & St. § 5323), and an injunction was issued against said Narver and against this respondent and another bank, enjoining them from "disposing of any of the property of said A. F. Narver, whether in the form of bank draft, moneys, or any other property, until further order of the court herein." Respondent was not made a party to said proceeding, and said injunction was issued without any notice to it, and without the execution of any bond. Said injunction was served on Narver at 6 o'clock in the evening of May 17, 1905, and on respondent at the opening of its bank at 10 o'clock a. m. May 18, 1905. Narver had left with the sheriff of Whitman county the sum of $500 as security for his appearance upon a criminal charge. Upon being released. the balance of $420.55, in the form of a draft on the Traders' National Bank, addressed to said Narver, was sent to Spokane, arriving there at about 7:30 p. m., May 17, 1905, after the restraining order had been served upon Narver. Said draft was indorsed by Narver and delivered to respondent, and the latter received and retained the proceeds thereof. Upon the examination of Narver in said supplemental proceedings, the fact was developed that he had concealed a portion of his assets, to wit, the sum of $420.55, and a receiver was appointed and was duly qualified at the time of bringing this action, which is for damages against respondent because of the alleged diversion of the proceeds of said draft.

Respondent contends that, inasmuch as it was not made a party to the proceedings between the Sprague Company and Narver, and had no notice of the application for the injunction, and no emergency being shown in the complaint or affidavit or otherwise for the isuance of the injunction without a notice, and no return day being named in the injunctive order, and no bond being given, said injunctive order was absolutely void. Under the statutes and former decisions of this court we think the contention must be upheld. Pierce's Code, §§ 477, 490, 900-904 (Ballinger's Ann. Codes & St. §§ 5428, 5438, 53155319); 2 Ballinger's Ann. Codes & St. §§ 5432. 5435: Larsen v. Winder, 14 Wash. 109, 44 Pac. 123, 53 Am. St. Rep. 864; In re Groen. 22 Wash. 53, 60 Pac. 123; Keeler v. White, 10 Wash. 420, 38 Pac. 1134; Cherry v. W. W., etc., Co., 11 Wash. 586, 40 Pac. 136; Swope v. Seattle, 35 Wash. 77, 76 Pac. 517; 10 Ene. Pl. & Pr. p. 920; 21 Enc. Pl. & Pr. 1014, 1037, 1041; 12 Cyc. 48; Barr v. Voorhees (N. J. Err. & App.) 37 Atl. 134; Davenport

V.

Kelly, 42 N. Y. 193; Jessup v. Carnegie, 80 N. Y. 441, 36 Am. Rep. 643; Hexter v. Clifford, 5 Colo. 168; Andover Corporation v. Gould, 6 Mass. 40, 4 Am. Dec. 80; James v. Atlantic Delaine Co., 13 Fed. Cas. 300; Storm v. Waddell, 2 Sandf. Ch. (N. Y.) 514; Lansing v. Easton, 7 Paige (N. Y.) 364; Bank v. Gage, 93 Ill. 175; In re Pitts (D. C.) 9 Fed. 544. The judgment of the superior court is therefore affirmed.

MOUNT, C. J., and DUNBAR, CROW, HADLEY, and FULLERTON, JJ., concur.

(43 Wash. 290)

STATE ex rel. ATKINSON, Atty. Gen., v. ROSS, Land Com'r, et al.

(Supreme Court of Washington. July 28, 1906.) 1. COUNTIES-POWER TO ISSUE BONDS.

A county has no authority to issue bonds for the purpose of paying warrants issued by the county, where the bonds, in addition to the indebtedness of the county at the time of their issuance, raise the county indebtedness above the constitutional limit.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Counties, §§ 215-217.]

2. COURTS-DECISIONS AS PRECEDENTS.

The rule of stare decisis should not be departed from, except in a case of grave necessity. (Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 311-339.]

Appeal from Superior Court, Thurston County; O. V. Linn, Judge.

Proceedings by the state, on the relation of John D. Atkinson, as Attorney General, against E. W. Ross, as Commissioner of Public Lands, and others, to restrain the board of public instruction from accepting certain bonds of school district No. 93 of Snohomish county. Judgment for relator, and defendants appeal. Affirmed.

J. W. Hartnett, for appellants. John D. Atkinson and A. J. Falknor, for respondent.

FULLERTON, J. School district No. 93 of Snohomish county issued bonds in the sum of $1,500 for the purpose, as expressed in the original resolution authorizing their issuance, of paying "warrants issued for building and furnishing a schoolhouse for said district and other expenses in connection therewith." These bonds were tendered the state as an investment for the permanent school fund, and were accepted as such by the board having authority to invest that fund. Before the transfer could be completed the Attorney General on his own relation instituted this proceeding to restrain the board from proceeding further in the matter on the ground that the bond issue was illegal. In his petition the Attorney General recites that the school district at the time the bonds were issued had an existing indebtedness equal to the amount of the bonds, and that by issuing the bonds it had in

creased its indebtedness to such an extent that the same exceeded the amount for which it could lawfully become indebted under the constitutional limitation by more than $700; that the bonds issued were for that reason illegal and void, and not bonds of the character in which the board of state land commissioners could lawfully invest the permanent school fund. The trial court sustained the contention of the Attorney General, and this appeal is taken from the judgment entered prohibiting the purchase of the bonds.

The attorney for the appellant contends that, inasmuch as the resolution of the board of directors of the school district shows that the purpose of the district in issuing the bonds was to use the money derived from their sale in taking up and canceling its outstanding warrant indebtedness, the indebtedness of the district is not thereby increased, since the bonds were intended to merely change the form of the indebtedness; the chief purpose being to reduce the rate of interest. He frankly concedes that his position is directly contrary to that taken by this court in the case of State ex rel. Jones v. McGraw, 12 Wash. 541, 41 Pac. 893, but he argues that that case is opposed, not only to the great weight of authority, but to the better reason as well, and should be overruled. The case cited holds that bonds issued under circumstances such as were had in this case are invalid on the principle that the debt is necessarily increased while the exchange is being made, and whether or not it is permanently so depends on the application that is made of the money received from the sale of the bonds. If it is applied to ex tinguish the outstanding obligations, the debt is not permanently increased, while if it is applied to current expenses, or in some manner as not to decrease these outstanding obligations, the debt is so increased; and "it would be inconsistent alike with the words and with the object of the constitutional provision, framed to protect municipal corporations from being loaded with debt beyond a certain limit, to make their liability to be charged with debts beyond that limit depend solely upon the honesty of their officers." But while this may be a somewhat technical view of the matter, and may be opposed to the weight of authority upon the question, we think the reason given for the decision sufficiently substantial to warrant us in adhering to it.

The case was decided more than 10 years ago, and has been recognized ever since as the rule of law governing in like cases. Duryee v. Friars, 18 Wash. 55, 50 Pac. 583; State ex rel. Winston v. Rogers, 21 Wash. 206, 57 Pac. 801. Stare decisis is the policy of the courts. On the adherence to its principle rest the decisions of the courts as authority. The rule is a salutory one, and ought not to be departed from unless grave necessity exists therefor. In this case we think the greater

A contract for the sale of land called for a down payment and the balance in monthly installments. Time was made of the essence, and it was recited that on default in any payinent all the vendee's rights should terminate and all payments be retained as liquidated damages. The agreement was made subject to the determination of a cause then pending involving the title to the land, and if it should be determined adversely to the vendor all rights under the contract should cease and the vendee be entitled to repayment of all sums paid. Held that, the vendee having made default in payments prior to a determination of the suit adversely to the vendor, the vendee was not entitled to repayment.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 981-983.] 2. SAME-CONSIDERATION.

A contract for the sale of land, requiring a down payment and the payment of successive installments, made time of the essence, and provided that on default the vendor should retain all payments made, and that, in case it should be determined in a suit then pending that there was a certain mortgage on the land, the contract should cease and all sums paid be repaid to the vendee. When the contract was made, a court of competent jurisdiction had held that the mortgage was not an incumbrance, and an appeal had been taken. Held, that the contract was not without consideration, there being two considerations for the payments and promises of the vendee; one being the agreement of the vendor to sell subject to certain conditions, and the other being the surrender by the vendor of its right to contract with or sell to another.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig Vendor and Purchaser, § 14.]

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by I. H. Jennings, as receiver of the Colby Trading Company, an insolvent corporation, against Dexter Horton & Co. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Allen, Allen & Stratton, for appellant. George E. De Steigner, for respondent.

HADLEY, J. This is an action for the recovery of money, brought by the receiver of the Colby Trading Company, an insolvent corporation. Among the effects of said corporation, which passed into the possession of the receiver, was a certain written contract between Dexter Horton & Co., and the said corporation. The contract bore date January 2, 1903, and provided that Dexter Horton & Co. agreed to sell and convey to said corporation certain real estate, upon the terms and conditions therein provided. The

total purchase price specified was $3,740, and $2,000 thereof was paid at the time the contract was executed. The balance was made payable in successive monthly installments of specified amounts, and it was provided that upon the faithful performance on the part of said corporation of all the terms of the contract, a good and sufficient conveyance of the land, containing covenants of special warranty, should be made to it by Dexter Horton & Co. Time was made of the essence of the contract, and it was recited that if the corporation should fail to make any payments as specified and at the times stated, then all rights of said corporation, either at law or in equity, under the contract should be wholly terminated, and at an end; and also that all payments theretofore made should be retained by Dexter Horton & Co., as and for liquidated damages. The contract also contained the following: "Provided, however, that this agreement is made subject to the final determination of the cause now pending in the United States Circuit Court of Appeals for the Ninth Circuit, wherein the London & San Francisco Bank is plaintiff, and Dexter Horton & Co., the party of the first part hereto, is defendant; which said action involves the title to the lands above described. And it is further provided that if the final judgment in said cause shall be in favor of the plaintiff therein, and adverse to the party of the first part hereto, and shall be to the effect that the said London & San Francisco Bank or Arthur Scrivener as trustee, or its or his assigns, has any right, title, claim, interest, or lien in and to said premises, or any part thereof, superior to the title and right of the party of the first part therein, thereupon all rights of either of the parties hereto under this contract shall cease, and the party of the first part shall be under no obligation to make any conveyance as above provided, nor shall the party of the second part be under any obligation to make further payments thereon, but the party of the first part shall repay to the party of the second part all payments theretofore made without interest."

The installment payments due upon the contract in the months of February, March, and April, 1903, were duly paid, and these together with the $2,000 cash paid when the contract was executed made the total sum of the payments $2,500. The suit mentioned in the above-quoted portion of the contract, which was pending in the United States Circuit Court of Appeals at the time the agreement was made, was thereafter, on or about the 19th day of October, 1903, decided adversely to Dexter Horton & Co., and to the effect that the London & San Francisco Bank, or Arthur Scrivener as its trustee, had a valid mortgage upon the land covered by the contract, which was a lien thereon at the time the contract was made and at all times thereafter, the same being superior and paramount to the title of Dexter Horton & Co.

A

After the decision in said cause by the United States Circuit Court of Appeals, Dexter Horton & Co. applied to the Supreme Court of the United States for a writ of certiorari to the said Circuit Court of Appeals for the review of said cause. The application was denied. There has been no appeal, and the decision remains unreversed and unmodified. Prior to said decision the Colby Trading Company was in default as to the payments due from it under its said contract. Installments of $250 each were due on the 2d days of May, June, and July, 1903, respectively. No one of said instaliments having been paid, Dexter Horton & Co. on the 31st day of July, 1903, served written notice upon said corporation that by reason of the default all rights of the Colby Trading Company, either at law or in equity, arising from said contract, were declared at an end. similar notice was also served upon the receiver of the corporation after his appointment and qualification. The aforesaid decision and judgment of the Circuit Court of Appeals ordered the Circuit Court of the United States for the Northern Division of the District of Washington to enter judgment of foreclosure as to the premises described in the aforesaid contract, but the said Circuit Court has not entered such judgment. No such judgment having been entered, the parties to said cause, on or about the 12th day of September, 1904, stipulated that the decree that should be entered therein should recite that the aforesaid lands were excepted, released, and discharged from the lien of said mortgage. Thereafter on the 13th day of September, 1904, the said London & San Francisco Bank, by deed, conveyed said lands to Dexter Horton & Co., free and clear of said mortgage. This action was brought by the receiver as aforesaid against Dexter Horton & Co. to recover the $2,550 paid upon said contract, and the above facts, which we have gathered from the pleadings, are by stipulation of the parties the facts in the case. The cause was submitted to the court without a jury, upon the pleadings as the agreed statement of facts, which the court accepted as its findings of facts. Conclusions of law from such facts were entered to the effect that the plaintiff is not entitled to the return of any of the money paid by said insolvent corporation on the contract set forth in the complaint, and that the action should be dismissed. Judgment of dismissal was accordingly entered, and the plaintiff has appealed.

It appears that, prior to the time the contract between the parties was made, the United States Circuit Court had decreed that the lands about which they contracted were not subject to the lien of a certain mortgage. That decree was, however, subject to reversal on the appeal heretofore mentioned. The agreement provided that, if the final judgment should be adverse to this respondent, thereupon all rights and obligations of the 86 P.-37

parties to the agreement should cease, and respondent should repay the amount of payments theretofore made. Appellant contends that the decree of the Circuit Court of Appeals was the final determination of the cause, while respondent insists that there could not be a final determination until final judgment was entered by the Circuit Court, which was in fact never entered adversely to respondent as we have seen from the statement of facts. From the view we take of the case, it is not necessary to pass upon the contention as to what was the actual final judgment within the meaning of the contract. We may, for the purposes of this opinion, assume that appellant is correct in the contention that the decision of the appellate tribunal was the final determination of the cause. Starting with that as sumption, we will examine appellant's further contention that by the determination in the appellate court, the condition in the contract was determined in favor of appellant here, and that the obligation of this respondent to return the money it had re ceived became absolute without regard to whether appellant had paid all installments theretofore due under the contract or not. It will be remembered that several payments were in default long before the decision of the appellate court. Time was made of the essence of the contract, and it was also specifically provided that if default should be made in any of the payments, all rights of appellant under the contract should be wholly at an end, and that respondent should retain all payments theretofore made as liquidated damages. The contract contained two provisions, by either one of which the rights of the parties thereunder might ultimately become fixed and determined. One of the provisions was that a final judgment in the foreclosure suit should fix and determine the respective rights, and the other was that a default in payment by the vendee should have the same effect. These two provisions must be construed together. Respondent well argues that it could not have been intended that the contract might be terminated twice, but rather that in whichever manner it should be terminated, the rights of the parties should be fixed thereby, and that should end the matter, so that the contract could not then be revived for the purpose of being terminated in a different manner. If a final judgment adverse to respondent had been entered before default by appellant, then the first provision above named wou d have terminated the contract, and appellant would have been under no obligation to make further payments, and could have recovered those already made. Again, when appelle made default, and a forfeiture was declared, then by the terms of the contract it was terminated. The subsequent final judgment adverse to respondent did not revive and render operative the contract which had already been terminated and rendered inop