of these securities the fire insurance company was permitted to do business in this and many other states. The with liabilities exceeding $190,000. creditors of that corporation must now lose, or the Hollon Parker Company must pay its obligation. It is plain that the Hollon Parker Company should lose under the rule last stated. We think it is reasonably clear from the evidence in this case that Orrin G. Parker and C. K. Holloway thought that the Walla Walla Fire Insurance Company at the [2] These notes and mortgages were executed by "the Hollon Parker Company by Orrin G. Parker, secretary," with the seal of the corporation affixed. It is said that these securities should have been executed by the president. The secretary was in charge of the principal office, but, when the ques-time they purchased the stock for the Hollon tion was raised by the insurance commissioner, a meeting of the stockholders was called, and the notes and mortgages were ratified by a vote of the stockholders. It is claimed by the plaintiff that he did not receive notice of this meeting. It is not disputed, however, that the notices were sent by mail, and that Orrin G. Parker and C. K. Holloway, representing a large majority of the stock, were present at that meeting, and voted all the stock, as they undoubtedly had a right to do, and thereby ratified the notes and mortgages. So that, if the securities were not authorized when they were made. they became by ratification of the stockholders a valid obligation of the Hollon Parker Company. [3] The rule is that persons dealing with corporate agencies have a right to rely upon the apparent authority of those in charge of the corporate business, and for acts done within the scope of that authority the corporation is bound. Livieratos v. Commonwealth Security Co., 57 Wash. 376, 106 Pac. 1125; Brace v. Northern Pacific R. Co., 63 Wash. 417, 115 Pac. 841; Slocum v. Seattle Taxicab Co., 121 Pac. 67. Parker Company would do a profitable business, and that the stock of the insurance company would be a good investment for the Hollon Parker Company, and that they purchased the stock in good faith for that reason. But, conceding that they conspired together and contracted the debts against the Hollon Parker Company without notice to Hollon Parker, in order to defraud and deceive him, and kept the mortgages from the record for a time for that purpose, still Hollon Parker placed these men in possession of his property with both apparent and actual authority to do as they did do, and therefore he must now suffer the loss, and not the innocent creditors of the fire insurance company or third persons who were misled by the plaintiff's acts. The judgment of the lower court is therefore reversed, and the cause remanded, with instructions to enter a decree foreclosing the mortgages set out in the cross-complaint, except the mortgages for $2,500 and $1,000 above referred to. DUNBAR, C. J., and MORRIS and ELLIS, JJ., concur. (68 Wash. 700) PARKER v. HILL et al. Walla Walla County; Chester F. Miller, Judge. Action by Hollon Parker against Dorsey M. Hill, as receiver of the Walla Walla Fire Insurance Company, and J. L. Elam's Bank. From judgment for plaintiff, defendants appeal. Reversed and remanded, with instructions. [4] It is also the rule that, "whenever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it." Merchants', etc., v. State, 10 Wall. 46; Coolidge v. Schering, 32 Wash. 557, 73 Pac. 682. This latter rule is controlling in this case. There can be no doubt that the plaintiff, Hollon Parker, placed his son, Orrin G. Parker, and C. K. Holloway, in full and actual charge of the affairs and property of the Hollon Parker Company. This company had authority to purchase shares in other corporations. It did purchase 924 shares of stock in the Walla Walla Fire Insurance Company, and agreed to pay therefor $185,000, and executed notes and mortgages aggregating that sum, and delivered these notes and mortgages to the Walla Walla Fire Insurance Company. By reason of these notes and mortgages, the Walla Walla Fire Insurance Company was authorized to do business. It contracted large debts, and then failed | plaint. Reynolds & Bond and Rader & Barker, all of Walla Walla, for appellants. Lester S. Wilson, of Seattle, and Ralph E. Moody, of Portland, Or., for respondent. PER CURIAM. For the reasons stated in Parker v. Hill (No. 10,106) 122 Pac. 618, just decided, the judgment in this case is reversed, and the cause remanded to the lower court, with instructions to enter a decree foreclosing the mortgage set out in the cross-com (19 Wyo. 523) HUNT v. THOMPSON. The liability of a plaintiff in replevin, who obtains possession on giving the statutory bond, and who is defeated in the action, is not limited to the value of the property and interest thereon, but defendant, though failing to give a redelivery bond and thereby retain possession, may recover as part of the damages the value of the use of the property during its detention by plaintiff. [Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 311-318; Dec. Dig. § 83.*] On petition for rehearing. Denied. his loss by the value of the property with interest thereon, and, under the circumstances, his recovery should be confined thereto. It may be said that in this case the defendant alleged by his answer that by being deprived of the use of the property during the pendency of the action he was damaged in the sum of $200. Without considering whether the value of the use, if recoverable at all, would be upon the theory of special damages, or whether the allegation of the answer would be sufficient to authorize such recovery as special damages, we proceed to a discussion of the contention of counsel that a plaintiff in replevin after securing the delivery of the property to him cannot be held to wrongfully detain it. Counsel is mistaken in supposing that the question may have been decided upon less than the usual careful consideration given to cases in this court, for the conclusion, whether erroneous or not, was reached only after mature deliberation, and, having carefully considered counsel's able presentation of the case from his standpoint, we remain of the opinion that it was correctly decided. POTTER, J. A petition for rehearing has been filed in this case, and counsel for plaintiff in error has ably and courteously discussed the question considered in the former opinion, contending that the court erred in holding that a defendant in replevin, if successful, is entitled to recover anything by way of damages for the detention of the property taken upon the writ; and that he may recover as such damages, under the cir- Why is it that upon plaintiff's giving the cumstances stated in the opinion, the value undertaking, which he is allowed by statute of the use of the property instead of inter- to do and thereby obtain a delivery of the est. It is earnestly argued that under our property to him, the title is passed to him statutes a plaintiff in replevin who has ac- as against the defendant? Surely not bequired possession of the property taken upon cause it is determined by such action that the writ by giving the authorized under- he is the true owner of the property, for taking cannot properly be said to wrong- that is one of the questions to be decided fully detain the same, and should not there- at the trial, if he claims ownership. The fore be held liable to respond in damages reason is and must be that the statute alas for its wrongful detention. The conten- lows the defendant in such case to recover tion is plainly stated in counsel's brief that damages only, if he succeeds upon the trial, the plaintiff so acquiring possession of the and provides only as to the condition of the property becomes the owner of it, and, for plaintiff's undertaking that he shall duly that reason, the measure of defendant's dam- prosecute the action and pay all costs and ages when he succeeds in the action should damages which may be awarded against him. ordinarily be confined to the value of the Perhaps it is immaterial whether the damproperty with interest thereon, as upon a ages to be so recovered, in excess of the debt. Counsel seems to concede, however, value of the property and interest, are to that there may be conditions where a writ be regarded as general or special. Counsel wrongfully sued out will cause damage far argues that when the plaintiff has so securbeyond the value of the property and the ed the delivery of the property to him, being interest thereon, such as where the property authorized by law to do so, his detention of is shown to have had a peculiar value to the the property thereafter is not wrongful. defendant, as property that cannot be pur- might as correctly be said that his act in chased in the open market, or where the suing out the writ and obtaining possession defendant through the wrongful suing out of of the property is not wrongful, for the law the writ may have been prevented from per- also authorizes him to do that. But he is forming a contract of sale requiring him to allowed to do that, and thereby keep as well deliver the particular property. And we as take the property upon the condition that understand from the brief that it is also he shall enter into an obligation to pay all conceded that the defendant should, under costs and damages that may be awarded all circumstances, be allowed to recover as against him. And, if it be finally determindamages an amount "commensurate with his ed that he was not entitled to the possesloss." It is, however, insisted by counsel that sion, then clearly it will thereby be deterthe case at bar is not one authorizing the re- mined that his act in suing out the writ and covery of special damages, for the reason causing the property to be delivered to him that the property taken might have been re- was wrongful; and, if that act was wrongplaced by purchase in the open market, and ful, it follows by the same reasoning that the defendant can be fully compensated for the detention would be wrongful. To state It it differently, and perhaps more accurate- been as clearly deprived of such use as of ly, the wrongful suing out the writ re- the property itself, and, when the property sults not only in taking the property of is shown to have had a usable value exceedthe plaintiff, but also in its detention, or, ing interest, he will not be fully and adeas said in the former opinion, "the detention quately compensated unless such value be in such case, as well as the taking, is in- allowed him, and we are convinced that the cluded in the wrongful act." We understand statute authorizes it to be allowed in such counsel to concede that damages are recover- case instead of interest. able by a defendant for a wrongful suing out of the writ, and that it is for such act only that damages are recoverable. To determine, then, what damages would be "right and proper," which the statute says may be recovered, it is necessary to ascertain the effect of the act of suing out the writ upon the defendant's rights. His right as the owner and the one entitled to possession of the property was not alone that of possession at the moment it was taken from him, but also to retain and use it; and of that right he would be divested by the wrongful act of suing out the writ, and should be given full and adequate compensation for the loss of that right. True it is that plaintiff's act in suing out the writ and securing a delivery of the property to him is authorized by law, but not a law which either provides or intends that the defendant's property shall be taken and passed to the plaintiff without adequate compensation for the wrong suffered by him in consequence thereof, if it should be found that the plaintiff had no right to take the property. A law on the contrary which provides and intends that if the plaintiff fails to establish his claim to the property or to its possession the defendant may recover such damages as shall be "right and proper." We are not strongly impressed by the argument that our statute, which permits a defendant to give a redelivery bond and thereby retain possession, is analogous to statutes of other states allowing a defendant to elect in case he recovers to either take a judgment for value or for a return of the property, so that his failure to give the bond should be treated as an election on his part, bringing the case within the rule adopted under such statutes that, where the election is to take judgment for value, the recovery is limited to the value and interest, on the theory that by such election he has in effect sold the property to the plaintiff. The defendant is not required to give a redelivery bond, though he may do so. Under the statute permitting it, he is not as free to act as a defendant who is merely required to say upon recovery at the trial that he will take a judgment for value instead of for the return of the property. It may be that his situation is such as to make the giving of the redelivery bond impossible. On the other hand, every act of the plaintiff in commencing the suit and giving the undertaking whereby he obtains possession of the property is voluntary on his part. And he takes that action with the knowledge that his obligation and liability will be to pay such damages sustained by his act as may be found to be "right and proper." Instead of perceiving any injustice in allowing the defendant full and adequate compensation by awarding the value of the use To hold that the act of the plaintiff in so of the property rather than interest, where commencing the suit, suing out the writ, and the property is shown to have had a usable obtaining possession of the property, convalue exceeding interest, as contended by summates, in legal effect, a sale of the propcounsel, we think that great injustice might erty to him, thereby limiting the damages of result in such case from a rule confining the the defendant to the value of the property. defendant's recovery to the value of the prop- and interest thereon, as upon a legal sale erty and interest thereon, upon the theory without express agreement as to price, would that the plaintiff, by wrongfully pursuing put it within the power of any one capable the remedy which the statute has provided for of giving the statutory undertaking, and one who finds his property unlawfully in against one unable to furnish a redelivery the possession of another, becomes in effect bond, to force the sale of any personal propthe purchaser of the property delivered to erty to him which he might desire, and be him, and,-as such, the debtor of the defend- willing to pay the market price for against ant for the value thereof. It may be imma- the consent of the true owner. And, even if terial whether the interest on the value of the true owner in such case upon his propthe property or the value of its use be re- erty being so taken from him might be able ferred to as damages for detention, or as an to give a redelivery bond but unwilling to element to be considered in ascertaining the do so, there would be no just reason in a amount of the damages for the wrongful su- statute imposing upon him the penalty of ing out of the writ. We are satisfied that, either giving the bond or consenting, by reunder the circumstances stated in our pre- fusing or declining to do so, to the sale of vious opinion, the value of the use may his property at such price as it may be found properly be considered in estimating the de- upon the trial to have been worth, so as to fendant's damages, in order to award him limit his recovery to such value with legal such an amount as shall be "right and prop-interest, where he is able to establish that er under the circumstances." He will have the property had a usable value in excess of 122 P.-40 the interest of which he has been deprived. [7. AccOUNT, ACTION ON (§ 7*)-EVIDENCEAnd we do not think that our statutes are ADMISSIBILITY. to be construed to have that effect. We are satisfied that the case was properly decided and upon a correct principle under our statute as herein explained. A rehearing is therefore denied. BEARD, C. J., and SCOTT, J., concur. (20 Wyo. 201) HILLIARD v. DOUGLAS OIL FIELDS. (Supreme Court of Wyoming. April 1, 1912.) 1. TRIAL (8 395*)-FINDINGS-SUFFICIENCY. Where, in an action on account, the findings of fact were that the defendant was indebted to the plaintiff under two causes of action in certain sums, and the conclusions of law were to the same effect and also stated that the plaintiff was entitled to recover and have judgment and execution for such sums and for costs, they were sufficient to constitute a general finding in favor of plaintiff and against the defendant. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 927-934, 939; Dec. Dig. § 395.*] 2. TRIAL (§ 394*)-FINDINGS SUFFICIENCY. Such findings were insufficient as special findings of fact within Comp. St. 1910, § 4515, providing that upon request the court shall state in writing the conclusions of fact found separately from the conclusions of law. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 924-926; Dec. Dig. § 394.*] 3. APPEAL AND ERROR (§ 273*)-PRESENTATION BELOW-SUFFICENCY OF EXCEPTIONS. A mere general exception to a finding is insufficient to preserve for review an objection that it is insufficient as a special finding of fact. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. § 273.*] 4. APPEAL AND ERROR (§ 1071*)-HARMLESS ERROR-FINDINGS OF FACT. In view of Comp. St. 1910, § 4599, providing that no exception shall be regarded unless it is material and prejudicial to the substantial rights of the party excepting, the insufficiency of a special finding of fact was harmless, where another assignment of error brought up the entire evidence for review. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.*] 5. STATUTES (§ 226*)-CONSTRUCTION-ADOPTED FROM ANOTHER STATE. Comp. St. 1910, § 4515, providing that upon request the court shall state in writing conclusions of fact found separately from the conclusions of law, was adopted from Ohio in 1886 with the construction placed upon it prior thereto by the courts of that state. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 307; Dec. Dig. § 226.*] 6. ACCOUNT, ACTION ON (§ 2*) - EXPRESS CONTRACT. Where nothing remained to be done upon contracts by a party to them, except to compute the items of expenditure, he had a right to maintain an action upon account without suing upon the contracts. [Ed. Note.-For other cases, see Account, Action on, Cent. Dig. §§ 1, 2; Dec. Dig. § 2.*] Where an action arising out of contracts was properly brought upon account, the contracts were admissible in evidence. [Ed. Note. For other cases, see Account, Action on, Cent. Dig. §§ 13-17; Dec. Dig. § 7.*] 8. MINES AND MINERALS ( 83*)-CONTRACT -CONSTRUCTION. Under a contract obligating a party to pay expenses connected with certain oil property from the date of the contract if the property should be conveyed to him at his request, but not otherwise, he was not liable for the expenses where the conveyance was not made to him but to another. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 212, 214, 215; Dec. Dig. § 83.*] 9. MINES AND MINERALS (§ 83*)-CONTRACT -CONSTRUCTION. Where one held an interest in an oil lease under a contract providing that he should claim only such title as his predecessor had, he was chargeable with notice that the title of his predecessor was being litigated, and he was liable, upon an implied promise to pay, for his proportionate part of the expense of defending the lease; and it was immaterial whether or not a certain contract was authorized wherein his agent bound him to pay his share of such expenses. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. 88 212, 214, 215; Dec. Dig. § 83.*] 10. ACCOUNT, ACTION ON (§ 2*)—WHEN LIES. Such liability was enforceable in an action on account. [Ed. Note.-For other cases, see Account, Action on, Cent. Dig. §§ 1, 2; Dec. Dig. § 2.*] 11. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. not affecting the result is harmless. The admission of incompetent evidence [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050;* Libel and Slander. Cent. Dig. § 381.] 12. MONEY PAID (§ 1*)-RECOVERY-CONDITION PRECEDENT. No recovery can be had in assumpsit for money paid to the benefit and use of another without it having been actually paid. [Ed. Note.-For other cases, Paid, Cent. Dig. §§ 1-16; Dec. Dig. § 1;* Consee Money tracts, Cent. Dig. § 1549.] Error to District Court, Converse County; Roderick N. Matson, Judge. Action by the Douglas Oil Fields against Robert O. Hilliard. From a judgment for plaintiff, defendant brings error. Reversed in part, and affirmed in part on condition. Clark & Clark, for plaintiff in error. W. B. Ross, for defendant in error. SCOTT, J. This action was commenced in the district court of Converse county by the defendant in error as plaintiff and who will be referred to in this opinion as plaintiff, against the plaintiff in error as defendant and who will hereinafter be referred to as defendant, upon two alleged causes of action upon separate accounts. The first cause of action is for an alleged indebtedness of $1,538.72 on an account for work, labor, and services performed and expenditures made in and about the business of and at the request of defendant between August 16, 1904, and July 30, 1906. The second cause of action is for money alleged to have been paid out at different times for and on behalf of defendant and upon his request between January 1, 1905, and December 1, 1908. It is alleged that a copy of each account, marked respectively Exhibits "A" and "B," is attached to and made a part of the petition. Exhibit A, upon which the first cause of action is based, is entitled "Robert O. Hilliard, Dr., to Douglas Oil Fields." Then follow the items of account which aggregate $5,385.51, and then the following: "2/7 (Hilliard's share) $1,538.72." Exhibit B, which is the basis of the second cause of action, is entitled "Robert O. Hilliard, Dr., to Douglas Oil Fields." Then follow the items aggregating $3,185.58, and then the following: "3/8 (Hilliard's share)=$1,194.59." The answer is a general denial. The case was tried without the intervention of a jury, and the court after argument and submission took the case under advisement. The journal entry recites: "That the defendant, having requested the court to separately state its findings of fact and its conclusions of law herein, does say and find as follows, to wit: The above case having heretofore, in obedience to the order of this court of May 13, 1910, been set down for trial on September 6, 1910, and having been continued until September 9, 1910, and the same having been proceeded with on the last-named date by the consent of counsel, the case having been adjourned to Cheyenne for the introduction of further testimony and final argument to be had at such time as the business of the court would permit, and the business of the court now permitting it to be heard, come now the above-named parties on this 30th day of December, 1910, by their respective attorneys, and the case is proceeded with by the introduction of evidence until the conclusion of the same, and thereupon the same is argued to the court, and the court being duly advised in the premises, and the defendant having requested the court to separately state its findings of fact and its conclusions of law herein, does say and find as follows, to wit: "I. Findings of Fact. "(1) That by reason of the matters and things set forth in the first cause of action of plaintiff's petition herein, the defendant on July 30, 1906, became indebted to the plaintiff for the items and in the amounts set forth in said first cause of action and more particularly specified in Exhibit A attached to and made a part of said petition not in the sum of $1,538.72 but in the sum of $1,387.29 for services and expenditures made by the plaintiff on behalf of the defendant; that no part of said amount has been paid by said defendant or by any one on his behalf; and that the interest on said sum from August 30, 1906, to the present time is $480.93. "(2) That by reason of the matters and things set forth in the second cause of action in plaintiff's petition herein, the defend ant on November 8, 1908, became indebted to the plaintiff for the items and in the amounts set forth in said second cause of action and more particularly specified in Exhibit B attached to and made a part of said petition as the same were corrected on the trial of the case in the sum of $1,061.86; that no part of said sum has been paid said plaintiff by said defendant or by any one on his behalf; and that the interest on said sum from December 8, 1908, to the present time amounts to the sum of $174.61. "II. Conclusions of Law. "And as conclusions of law this court does say and find as follows, to wit: "(1) That under the first cause of action as set forth in plaintiff's petition there is now due from the defendant to the plaintiff the sum of $1,387.29 as principal and $480.93 as interest amounting in all to the sum of $1,868.22; and that the plaintiff is entitled to recover said sum from the defendant and to have judgment and execution therefor. "(2) That under the second cause of action set forth in plaintiff's petition herein there is now due the plaintiff from the defendant the sum of $1,061.86 as principal and $175.61 as interest, amounting in all to the sum of $1,236.47; and that the plaintiff is entitled to recover from the defendant said sum and to have judgment and execution therefor. "(3) That the plaintiff is entitled to recover from the defendant its costs herein and to have judgment and execution therefor." Judgment was rendered accordingly, and the journal entry proceeds as follows: "To all of which findings of fact, conclusions of law, judgment, and order the defendant does now and here except." A motion for a new trial was made and presented to the court, which overruled the same, and the defendant brings error. [1-3] 1. It is assigned as error that the court refused to make and state separately its findings of fact and conclusions of law in accordance with section 4515, Comp. Stat., as requested by the defendant. The findings of fact and conclusions of law hereinbefore set out are in our judgment sufficient to constitute a general finding in favor of the plaintiff and against the defendant. We are also of the opinion that as a special finding of fact within the provision of section 4515, supra, they are each imperfect and insufficient. It appears that the trial court intended them as special findings and responsive to the request. The exceptions cannot be here considered, for it does not appear that |