Opinion of the Court-WHITE, J. [26 Wash.

the money paid by mistake. When the appellants ask to have $14.80 back, the proportion of the said $175 credited on the assessment of $185.05, they are asking for something not theirs by the contract. Under the contract they were to pay such part of the total cost as their front footage bore to the total frontage improved. The testimony shows that was $185.05. No error was committed in refusing to deduct the sum of $14.80 from said amount.

Objection was made to the lien notice. This notice states the time of commencement and cessation of performing the work and furnishing the material, the name (John Kahlberg) of the person who performed the labor and furnished the material, and that the same was at the request. of Frank Borzone. It contains a description of the property charged with the lien sufficient for identification. It states the name of the reputed owner as Frank Borzone. It states the amount for which the lien is claimed as $185.05. It, in addition, gives a general description of the work done, and states the value of this work was $185.05. It states that John Kahlberg, by an assignment in writing, duly assigned the claim and his right to claim a lien to M. H. Young. The notice was properly verified. think the notice a full compliance with § 5904, Bal. Code. The statement that one performed labor, etc., at the request of another is equivalent to saying that he was employed by the other. The evidence is sufficient in this case to show that the appellants knew that Kahlberg was doing this work as the assignee of Hadfield & Roberts; besides, the tender pleaded admits that fact. The law allows the assignment of such a contract as was made between the appellants and Hadfield & Roberts (§ 4835, Bal. Code); and when the assignee, with full knowledge of, and without objection from, the contracting parties, performs the labor contracted to be performed, he must be held, under

We

Sept. 1901.]

Opinion on Rehearing-WHITE, J.

the liberal rule of construction which must prevail when construing the lien law, as having been employed to do the work or furnish the material.

The record shows that by order of the court the respondent drew down the $140 tendered. Under §4835, supra, the appellants could plead in defense the counter-claim set up in the first affirmative defense. The court erred in excluding testimony, as we have indicated in this opinion, as to the damages relative to placing the earth and stumps on the lots of the appellants, as claimed in the first affirmative defense. For that reason the judgment is reversed, with instructions to the court below to proceed with the cause so far as to ascertain such damages. If such damages are equal to or exceed $45.05, the defendants to recover costs; otherwise, the plaintiff to have a decree of foreclosure of his lien for the amount due him over $140, with costs, with such attorney's fees, not exceeding twenty-five dollars, as the court below may allow. Appellants to recover their costs on this appeal.

REAVIS, C. J., and ANDERS, DUNBAR, MOUNT, FullerTON and HADLEY, JJ., concur.

ON PETITION FOR REHEARING.

WHITE, J.-The respondent, in his petition for rehear ing, calls our attention to the fact that at the time of the hearing of the appeal a motion which was not incorporated in the respondent's brief was made to dismiss the appeal because of the insufficiency of the bond of appeal and supersedeas. When the opinion in this case was written this motion was not found with the files, hence the matter suggested by the motion was overlooked, and not passed upon. The notice of appeal in this case is sufficient to identify the judgment appealed from. The judgment ap

Opinion on Rehearing-WHITE, J. [26 Wash.

pealed from is the final judgment and decree signed by the judge who tried the cause, and it is signed and entered of record on the 23d day of March, 1901. The respondent, by his complaint in this action, sought to recover from the appellants $185.05 under a contract made with Hadfield v Roberts and the appellants for clearing, grubbing, grading, sidewalking and otherwise improving Roy street, in Seattle. Before the action was brought the appellants tendered to the respondent $140, as being all that was due the respondent for the aforesaid work. The respondent refused to accept the tender and brought suit for $185.05 as the amount due him from appellants. The appellants, when they filed their answer, pleaded the above tender, and paid the $140 into court for the use of the respondent and in full satisfaction of his claim. The findings of fact and conclusions of law were filed in this case on the 23d day of March, 1901, the day final judgment was signed and entered. On the 15th of March, 1901, on motion of the respondent, the court made an order directing the clerk of the court to pay over to the respondent as of March 12, 1901, the day of the trial, the $140 tender deposited by appellants. No objection was made by the appellants to this order. In our previous opinion we stated that the record showed that this money was drawn down by the respondent. An examination of the final decree clearly shows that we were correct in this statement. That decree recites that the one hundred and forty dollars had been ordered paid over to the respondent, and then follows the judgment in the following language:

"It is hereby, by the court, ordered and adjudged that the plaintiff do have and recover of and from the defendants, Frank Borzone and Louise Borzone, the sum of fortyfive and 5-100 ($45.05) dollars as the balance unpaid on the alleged lien of the plaintiff, and on the contract set

Sept. 1901.] Opinion on Rehearing-WHITE, J.

forth in plaintiff's complaint, and the further sum of seventy cents (8.70) paid by plaintiff for filing his notice. of lien with the auditor of King County, Washington, and the further sum of fifty ($50) dollars as attorneys' fees for the attorneys for the plaintiff herein, together with costs and disbursements of this action, to be taxed herein."

The decree then establishes the lien on the lots, and forecloses the same, and orders a sale of the lots by the sheriff, etc. It is clear that the final judgment was but for $45.05 and attorneys' fees and costs. The supersedeas was to stay the execution of this judgment. The penalty of the bond was for $500. The condition was, "Now, therefore, if the said principal, Frank Borzone and Louise Borzone, shall pay to M. II. Young, the plaintiff above named, all costs. and damages that shall be adjudged against defendants on the appeal or on the dismissal thereof, and shall satisfy and perform the judgment or order appealed from, in case it shall be affirmed, and any judgment or order which the supreme court may render, or order to be rendered, by said superior court, not exceeding in amount or value the above original judgment, then this obligation to be void; otherwise to remain in full force and effect." The record in this case fails to disclose the amount of the costs, other than the attorney fee and seventy cents for filing the lien. The judgment and costs, so far as disclosed, amount to $95.75. The object of a supersedeas bond is to secure to the respondent the judgment recovered by him. The respondent in this case had in his possession $140 of the sum found to be due him. He was absolutely secure in this amount, and no bond was necessary to secure it to him. For the balance, $45.05, he had a judgment, and a bond of $500 to secure the same. We think, therefore, that the bond was sufficient both as an appeal and supersedeas, and the motion should be denied.

Opinion on Rehearing-WHITE, J.

[26 Wash.

One word more as to the tender. The pleadings and proofs of both, appellants and respondent, show that there was no dispute or controversy as to these facts, viz.: that a contract was made with Hadfield and Roberts by the appellants for clearing, grubbing, grading, sidewalking and otherwise improving Roy street according to plans and specifications of the city engineer of Seattle, and under his direction and control, at and upon the following rates: Clearing and grubbing said street, $95.00; moving earth, 18 cents per cubic yard; sidewalk, etc., $11.05 per thousand feet, board measure, and that this work had been done. For this work, before the action was brought, $140 was tendered by appellants to respondent. The dispute between the appellants and respondent raised by the pleadings was as to whether the work was to be finished by September 1, 1899, and as to whether certain plans and specifications prepared by the city engineer for the work, with certain provisions contained therein, were also part of the contract. This court has found that neither the respondent nor the appellants were correct in their contention as to the connection of these plans and specifications and the provisions therein contained with the contract. It is plain from the pleadings that the appellants sought to keep the tender for the work good that they had made before the action was brought, and sought also to give their version of the contract. This, we think, they had a right to do. There is nothing inconsistent in the tender with the principal provisions of the contract, which are not disputed or controverted by either party touching the grading, etc., of the street; and that it was to be done under the plans and specifications and direction of the city engineer at the prices heretofore set out. Under the circumstances of this case it would violate equity and good conscience, and be illiberal and narrow, to hold that, be