"Should you find from the evidence that the defendant M. V. Woodard did not execute the note set forth in plaintiff's complaint herein, it will be your duty to return a verdict in favor of both defendants herein."

Doubtless the court based the instruction

also, in connection with the section of the act giving the husband the management, control, and disposition of the community personal property. While he may not deny to his family the necessities of life, or deny to his children an education, it is manifest that he must have a large voice in determining whether his separate property or the community property shall be liable when the proposed expenditure goes beyond necessities or is not for the education of the children. Toing a finding in favor of the wife as well as

hold otherwise would be to deny to him the

upon the fact that the complaint declared upon a note and gave the instruction upon the theory that a failure to prove the execution of the note was a failure of proof warrant

the husband. But we think the instruction erroneous nevertheless. The answer and re

ply broadened the issues made by the com

plaint and warranted a recovery against the wife on the obligation assumed by the pur

right which the statute expressly gives him, namely, the right to manage, control, and dispose of the community personal property. We cannot think, therefore, that the purchase, even though it be true she did not chase of this instrument by the wife on her own behalf, after the husband had declined to make the purchase, even though used by the family, makes it a family expense, chargeable upon either the husband's separate property or the property of the community. The instrument does not partake of the nature nor is it such a common ordinary household article as to be a subject of purchase by that spouse who can only contract on behalf of the family for the usual and ordinary requirements of the family. It follows that there was no error on the part of the court in refusing to charge the jury that the obligation sued upon was a family expense, or in refusing to enter judgment for the appellant against the defendant husband notwithstanding the verdict.

[2] It is true, also, the court refused to submit to the jury as a question of fact whether or not the obligation incurred in the purchase of the piano was a family expense, and that error is assigned thereon. But we find no error in this. In our opinion the question in the particular case because of the nature of the evidence was one of law, not a question upon which opinions might reasonably differ. The court did charge the jury that, if they found that the husband had in any way ratified the purchase, they might find the community liable. This was as favorable to the appellant as the facts warranted. We have not overlooked the citations from other jurisdictions, holding that an obligation incurred by the purchase of a piano is a family expense, when the piano is retained and kept for use by the family, and, under statutes containing provisions similar to our own, is chargeable to the property of both husband and wife. But an examination of the cases will show that they are from states where the property of married persons is not held under a tenure like our own; that is, states where the community doctrine of ownership does not obtain. Nor does any of them present the fact of a purchase by the wife over the protest and objection of the husband.

knowingly execute the note. No fraud was perpetrated upon her. The most favorable view of the evidence is that she did not realize, when executing the papers evidencing the purchase of the piano, that she was executing a note; but by her own admission she executed the contract of purchase fully understanding its purport. It is conceded that the obligation assumed has not been met. Plainly, therefore, the appellant was entitled to a judgment against the wife, and the jury should have been so instructed by the court, or, failing in that, the court should have granted a judgment against her notwithstanding the verdict.

The judgment is reversed as to the respondent M. V. Woodard, and the cause remanded with instruction to enter a judgment against her according to the terms of the contract of purchase, the judgment to be executed upon her separate property. In other respects the judgment will stand affirmed.

- OPTION 1. VENDOR AND PURCHASER_57 TO PURCHASE-CONTRACT-DUTY TO CONVEY FREE OF MORTGAGES.

Lease, embodying option to purchase, whereby land company leased land with mills to plaintiff company's assignor, together with indorsement of consent by bank holding mortgage liens, held to charge land company and bank with burden to convey free of mortgages or liens held by bank when contract was made. 2. INSURANCE 582-OPTION TO PURCHASE -RIGHT TO INSURANCE MONEY.

Where lease covering land, mills, and machinery, and embodying option to purchase, was made, mortgagee bank indorsing consent, and fire policies, pursuant to lease, were made out in names of lessor, bank, and lessee, and the property was damaged by fire, lessee's assignee, [3, 4] The court gave to the jury the fur- having exercised option to purchase, is entitled ther instruction: to insurance money.

3. LANDLORD AND TENANT

92(4)-ACCEPT- [ providing for the application of disposition of insurance moneys in case of a loss is as follows:

ANCE OF RENT-WAIVER OF DEFAULT. Acceptance of rent for a month by a lessor was a waiver of any prior default by the lessee's assignee under lease with option to purchase. 4. SPECIFIC PERFORMANCE 16-GROUND FOR DENIAL-INJURY TO ONE NOT A PARTY. Specific performance of option to purchase land, mills, and machinery, property having been damaged by fire, will not be denied the holder, claiming insurance money, on ground that company owning property in neighborhood, not a party to the contract, will be damaged because plaintiff may not operate the mills.

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman, Judge. Suit by the Carnation Lumber & Shingle Company, a corporation, against the Tolt Land Company, a corporation, the National City Bank of Seattle, J. W. Maxwell, and others, wherein the Tolt Townsite Company, a corporation, intervened. From a decree dismissing the complaint, plaintiff appeals. Reversed, and case remanded, with instructions to enter decree for plaintiff.

"If the said property, or any of it, shall be destroyed or damaged by fire, during the term of said lease, the insurance money received shall be devoted to the repairing or rebuilding, of said property, if the party of the second part, or his assigns, shall determine that the application of same for said purpose will sufficiently reconstruct said property for the second party to continue operating under said lease and will so notify the party of the first part."

The contract further provided that, if Burtion to purchase within the time agreed upnett or his assigns should exercise their opon, the land company would convey the two deed or deeds and would execute all other tracts by "a good and sufficient warranty instruments necessary to affect the terms of the agreement."

months' rent in advance at the time the conBurnett paid the sum of $900 being three tract was executed. The bank having a money interest in the transaction as mortgagee, Edgar C. Snyder and Farrell, Kane & and to the extent of the full purchase price Stratton, all of Seattle, for appellant. J. A. in case the option were exercised, and havColeman, of Everett, S. H. Kelleran, of Seat-ing been a party to the negotiations between tle, Jesse Simmons, of Tolt, and Almon Ray the parties leading up to the execution of Smith and Piles & Halverstadt, all of Seat- the writings, which were submitted for its tle, for respondents. approval, indorsed upon the contract the following:

CHADWICK, J. Following the lead of "We, the undersigned, holders of valid subcounsel, we shall refer to the appellant assisting lien claims against the property referred the plaintiff, the Tolt Land Company as the land company, the National City Bank of Seattle as the bank, and the Tolt Townsite Company as the townsite company, or collectively as the several defendants.

On and prior to the 20th day of May, 1916, the land company was the owner of certain property consisting of a one-acre tract upon which was a shingle mill and a five-acre tract adjoining upon which was a sawmill. The bank was the holder of two notes which had theretofore been made by the land company and indorsed by the townsite company. The aggregate balance due on these notes at the time was $23,177.50. Both of these notes were secured by mortgages made by the land company to the bank. On the day mentioned, one Burnett and the land company entered into a contract of lease and option to purchase, whereby the land company leased to Burnett and his assigns the two tracts, together with the shingle mill and sawmill situate thereon, also all of the machinery and equipment therein contained, for a term beginning June 1, 1916, and ending May 31, 1918, at a monthly rental of $300 per month with the privilege of purchasing at a price of $18,750 if taken within two years and at a price of $14,000 if the option were exercised within eighteen months after June 1, 1916. It was further provided that Burnett or his assigns should keep the property insured at all times in an amount not less than $14,000 with loss payable to the lessor "as its interests may appear." That part of the lease

to in the foregoing agreement and fully describ ed in the certain lease to which reference is made in the said foregoing agreement, do hereby, in so far as our interest appears, fully ratify, confirm and approve all of the terms and conditions of the said agreement and the said lease.

"Dated at Seattle, Washington, May 20th, 1916. National City Bank, by J. W. Maxwell, Pt. J. W. Maxwell. [Corporate Seal.]"

In

After the papers had been executed, Burnett assigned his interest to the plaintiff, a corporation organized for the purpose of taking over the property, and of which Burnett is the principal stockholder. The sawmill was not operated, but the shingle mill was operated to a certain extent. The mills were somewhat in disrepair, and plaintiff was put to some delay, annoyance, and expense in putting them in shape for operating. consideration of this delay and expense, the land company, with the approval of the bank, allowed a credit for two months' rent, which carried the rent payments over September and October, 1916. After plaintiff had taken possession of the property, it encountered a claim of the Puget Sound Machinery Depot for $1,520, which was due from the land company for machinery which it had purchased under a conditional bill of sale and put in the mill. The claim was questioned to a certain extent by the company, and denied as an obligation by plaintiff. Pending a settlement no rent was paid. The machinery company finally took steps to enforce its claim through legal proceedings. A compromise was then reached. The amount due the machinery

doned the property; that it now has no interest in the proceeds of the insurance policies; and that it cannot now maintain a bill for specific performance.

Waiving for the time the questions of forfeiture and abandonment, the case really comes down to this: Whether the bank having mortgages on the property agreed to release its mortgages in the event plaintiff exercised its option to purchase.

company was paid by plaintiff and allowed ants that plaintiff has forfeited its contract as rent to the extent of $1,390. Plaintiff by the nonpayment of rent; that it abanthen paid $710 in money, being $2,100 in all to the bank. It was received and credited upon the rent account. This paid the rent up to April 1, 1916. On April 2d $300 was paid by the plaintiff to the bank as rent for the month of April. On the 11th day of January, 1917, the shingle mill was partly destroyed by fire. The policies had been written in favor of the plaintiff, the land company, and the bank. A dispute arose as to the distribution, application, and ownership of the money realized upon the policies, and checks were therefore issued by the insurance companies payable jointly to the several claimants. These were indorsed by the parties and the proceeds paid into the First National Bank of Seattle under a stipulation that the money should be held subject to the decree of the court in this action.

A few days prior to the making of the deposit of the proceeds of the insurance policies, plaintiff undertook to exercise its option. The balance due after crediting all sums paid as rent was $10,700. This sum was tendered to the bank and to the land company under a tender which recites:

"This tender being made firmly and nonconditionally, save only as to the following requirements, compliance with each, and all of

which is hereby demanded of you."

[1] The case was tried on the theory that the contract and the indorsement made by the bank and Mr. Maxwell was a sufficient declaration of intention that the bank would release the mortgages so that the company might convey by a good and sufficient warranty deed. After the testimony had closed, the trial judge made some intimation that, in his judgment, the contract was not sufficient in terms or form to bind the bank to a release of the mortgages. Whereupon counsel for plaintiff asked leave to amend, setting up a mutual mistake, in that the parties had omitted to incorporate their express agreement to that effect when the indorsement was written. The court took further testimony upon this issue, but it is our judgment that this can in no way affect the rights of the parties or the controlling equi

ties. The contract, together with the indorse

The first and best resort in the construc

The requirements were: First, a warranty ment by the bank, is in itself sufficient to deed from the land company. Second, a bill of sale of the personal property from the charge the land company and the bank with land company. Third, either a satisfaction the burden of conveying by good and suffior release of the mortgage held by the bank cient deed free of all mortgages or subsistor a quitclaim deed from the bank. Fourth, ing liens held by the bank or Mr. Maxwell “a full discharge and release of said prop-at the time the contract was entered into. erty from the liens of certain judgments." Fifth, assignments to the plaintiff by the land company and the bank of all interest in the proceeds of the insurance policies. Sixth, payment to the plaintiff of $199.45 deducted by one of the insurance companies from the adjusted loss under its policy, under claim by that insurance company of an obligation to it from the land company wholly independent of the policy involved. Seventh, indemnity against any judgment in King county superior court cause No. 116025. Eighth, payment of the 1915 taxes.

A

The defendants were further notified that the tender would be kept good by bringing suit and paying the money into the registry of the court unless compliance was had with the several demands or conditions. The tender was refused, and plaintiff brought this action to compel specific performance. short time after the action had been brought, the land company gave notice to the plaintiff that it had forfeited the contract for the nonpayment of the rent for May, June, and July, 1917. The court below held in favor of the several defendants, and from a decree dismissing plaintiff's complaint this appeal is prosecuted.

tion of contracts is to put oneself in the place of the parties at the time the contract was executed; to look at it in prospect rather than in retrospect, for when money disputes have arisen the perspective is apt to be clouded by the unexpected chance of gain or self-in

terest.

On the 26th day of May, 1916, the land company owned the property which plaintiff desired to lease with an option to purchase. It was willing to lease at $300 per month, and to sell within eighteen months at $14,000 and within two years at $18,500. A contract was entered into and signed by the parties. The bank having a financial interest agreed that the contract might be entered into. It became in a sense a party to the As the holder of mortgage liens, contract. it knew of and approved a contract which if carried out would result in a sale of the property at $14,000, or, at most, $18,500. It knew that the rent and purchase price would be paid to it, and that if the option were exercised the purchaser was entitled under his contract to a "good and sufficient warranty deed or deeds." As the holder of "subsisting mortgage liens," it knew the purpose of the

tionee, and, the contract being wholly executory and subject to breach at will, that the proceeds of a policy goes to the owner. With this rule we have no present quarrel, but it does not measure this case.

[2] This is a suit in equity, and the only object we have is to compel the doing of such equity as grows out of the contract. The subject-matter of the sale was the land, the mills, and machinery. The policies were made out in the names of the several parties to this suit, and, if there were no other provision for the distribution of the insurance moneys, the laws would supply the words "as their interests may appear." It may be granted that the purchaser or the plaintiff would not be entitled to the insurbut when it exercised its option it was entitled to the benefit of its bargain. That is to say, if the mills with the machinery, or if any of them, had been destroyed in whole or in part by fire, it is entitled to the insurance money; for equity will take no account of a change in form or character of property.

that the vendor was to take $14,000, in event, etc., as the full purchase price, and that the purchaser expected to get a title free of "subsisting mortgage liens"; that, if the option were exercised, it would receive the purchase price in part payment of a debt for which it had only "doubtful security." We cannot understand how it can be contended otherwise, but, say counsel, it would be to charge Mr. Maxwell with a lack of all business acumen to say that he would release the property upon payment of $14,000 when he had a subsisting mortgage for $21,800. But this is non sequitur. If the security was doubtful, it may be that the property was not worth to exceed the sale price. Some men have been content to take a chip or a whetstone in full payment of substantial obliga-ance money if it had not exercised its option, tions; or it may be that, having "other securities to fall back on" and having faith in them, he was willing that the debtor should sell at its own price. But to exempt Mr. Maxwell of the imputation of careless conduct would be to charge his adversary with imbecile disregard of his affairs. It would be to say that he contracted to pay $14,000 and take the property subject to a mortgage of $21,800, and, if he eventually got the title that would follow a "good and sufficient warranty deed"-that is, a deed with full covenants-he would have to pay $35,800.

But it is not for us to try out the business ability of the contracting parties. Whatever their capacity, they have made their own contract and for themselves. As was so well said by that sturdy yeoman of the law, the late Judge Dunbar:

"These parties have made a law for them

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*

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selves.
But we are convinced that as
long as people are privileged under the law to
make contracts for themselves, if they are un-
wise enough to make contracts which are bur-
densome, the law cannot relieve them. *
They solemnly executed this contract, and in
the absence of fraud it is conclusively presumed
to speak the minds of the contracting parties.
Any other construction would destroy the force
and effect of all written obligations and leave
everything to the chance of slippery memory,
the very thing which a written contract is in-
tended to guard against." Pease v. Baxter, 12
Wash. 567, 41 Pac. 899.

And as there held, whether we give the the approval of the holder of subsisting liens of a contract to convey at a certain price by a good and sufficient deed, a technical meaning or the meaning ordinarily given to such words, the conclusion is irresistible that the bank agreed to accept the purchase price and discharge its lien. Neither is the bank entitled to hold as its own or as a payment on the debt of the land company the proceeds of the insurance policies. The greater portion of the briefs are taken up with a discussion of the rights of the parties under option contracts to take the proceeds of insurance policies. It is asserted that, under the great weight of authority, if the contract be a mere option and not a present sale, no element of title either legal or equitable is in the op

This works complete equity between parties to this suit, for it gives to the purchaser his value in property, and, with the payment of the money into the registry of the court, the bank will satisfy the contract and give to the purchaser and the land company all that it demanded.

of the contract. It was agreed that the purOur conclusion consists with paragraph 5 chaser should keep the property insured for at least $14,000 payable to the land company as its interests may appear. The covenant to insure was for the benefit of the

security. In this connection paragraph 3 of the contract may be re-read. So that, granting the rule contended for by counsel, it is plain that the parties contracted against the rule, and the purchaser had option to apply the proceeds of the policies to repairing or rebuilding. Paragraph 3 can bear no other meaning than that the integrity of the security should be maintained, either in money or in property, pending the exercise of the option or the payment of $14,000 which would terminate the contract rights of the parties. The prime purpose of the land company and the bank was the payment of $14,000, and they can have no possible interest in the source of the payment. It would be idle to pursue the abstract propositions advanced by counsel, for, as it has been said, the parties have made the law of their case, and to give either party a right or an advantage that is not reserved in the contract would be doing a wrong which in theory at least equity is incapable of doing.

Neither do we find merit in the contention that the tender was not good. The contract provides:

"If and when the party of the second part, or his assigns, shall exercise the privilege of the purchase, herein granted, and shall pay purchase price in full, as herein stipulated, then the party of the first part shall, and hereby

MAIN, C. J., and HOLCOMB, MOUNT, remand the case for a new trial or other proand MACKINTOSH, JJ., concur.