would be efficient. A party appealing to a court | and cases there cited. We are of the opinion of equity must make a case which commends itself to the conscience of the court."

that the limitation relied upon by the defendants is no bar to the action of the plaintiffs in the instant case, since it has been frequently held by this court that the special statute of limitation relied upon by the defendants is not applicable to an action maintained to enjoin collection of a void assessment. Morrow v. Barber Asphalt Co., supra; Flanagan v. Tulsa, 155 Pac. 542.

[4] It is, however, urged by the defendants that this case should be dismissed by this court for the reason that the plaintiffs did not join with them in their action the contractor and the holders of the bonds issued to pay for the paving in the instant case; it being urged by the defendants that such contractor and bondholders are necessary parties in a proceeding to enjoin collection of assessments levied to pay such bonds. Counsel for defendants present a number of authorities that seem to support this contention; but we are of the opinion that it has been determined by this court that, in an action to enjoin the collection of taxes or special assessments, the county treasurer or the sheriff, as the case may be, are the proper parties. Rogers v. Bass & Harbour Furniture Co., 47 Okl. 786, 150 Pac. 706, and cases there cited; Harn v. Oklahoma City, 47 Okl. 639, 149 Pac. 868.

The trial court found that the contract for paving in the instant case was let without a preliminary estimate of the cost having been before made by the engineer and presented to the commissioners. It is contended by counsel for defendants that this finding of the court is not supported by the evidence. The city clerk testified that he could find no preliminary estimate of the cost of this paving in his office, and that there was no record of any preliminary estimate having been presented to the city commissioners. The defendants produced the city engineer as a witness in their behalf, who produced an estimate of the cost of this paving which was offered in evidence. Upon further examination of the city engineer, it developed that the estimate presented by him and offered in evidence was an estimate made after the work had been commenced for the purpose of advising the commissioners in making settlement with the contractor. The city engineer then testified that he could find in his office no estimate of the cost made prior to the commencement of the work. This was practically all of the evidence with reference to a preliminary estimate of the cost. It is true that there is a presumption that the city commissioners We therefore conclude that neither the conobeyed the law in the letting of this con- tractor nor the holders of the bonds were nectract, and the burden was upon the plaintiffs essary parties to this proceeding. The judgto rebut this presumption. Upon this statement of the trial court should be affirmed. of the record, it being made to appear that no preliminary estimate was on file either in the office of the clerk or the city engineer and that there was no record of any such preliminary estimat ever having been presented to the commissioners, and the defendants having been unable to find any estimate of the cost except a final estimate after the work had been begun, we are unable to say that the finding of the trial court upon this point is against the weight of the evidence.

PER CURIAM. Adopted in whole.

WILSON v. VANDER MOLEN et al. (No. 8545.) (Supreme Court of Oklahoma. April 2, 1918.)

(Syllabus by the Court.)

MECHANICS' LIENS 315 - CONTRACTOR'S
BOND-ASSIGNMENT OF LIEN-LIABILITY OF

SURETY.

Where a contractor makes bond conditioned for the faithful performance of his builder's contract and to hold obligee free and harmless ed upon the order of said obligor or his agents, from all labor and materialmen's liens occasionas well as all costs, including attorney's fee, enforcing payment and collection of any claim is made for the use and benefit of all persons incurred thereon, and providing that the bond who may become entitled to liens under said contract according to the provisions of law cov ering the same, and may be sued upon by them liens are filed and assigned, and suit is brought as if made directly to them, held that, where upon said bond to enforce their payment, the said obligor and his sureties are liable for a reasonable attorney's fee in enforcing the payment and collection of same,

Upon the authority of Morrow v. Barber Asphalt Co., supra, this neglect and failure to comply with the plain provisions of the statutes rendered the proceedings which culminated in the assessments absolutely void. The finding of the court as to the fraud and collusion between the contractor and city engineer in the performance of the work provided for in the contract seems to be supported by the record, and while, under the authority of City of Chickasha v. O'Brien, supra, an action could not be maintained to enjoin the collection of assessments because of such fraud and collusion after the expiration of the 60-days limitation provided in section 644, supra, yet the facts found by the trial court present a case which should appeal to the Commissioners' Opinion, Division No. 2. conscience of a court of equity so as to re- Error from District Court, Pawnee County; lieve plaintiffs from being barred because of | W. M. Bowles, Judge. their laches and to relieve them of the rule Action by John W. Wilson against J. L. applied in City of Ardmore v. Appollos, supra, Vander Molen and others. Judgment for de

fendants, and plaintiff brings error. versed.

Re-, this obligation to be null and void; otherwise to be and remain in full force and effect.

Edwin R. McNeill, of Pawnee, for plaintiff in error. Horace Speed, of Tulsa, for defendants in error.

WEST, C. This is an appeal from the judgment of the district court of Pawnee county wherein John W. Wilson was plaintiff and J. L. Vander Molen, G. W. Sutton, and Samuel Byrne were defendants, and the parties will be referred to as they appeared below.

It appears that E. C. Mullendore employed Vander Molen to build a certain two-story brick house, and that the latter had executed a bond in the sum of $5,000 for the faithful performance of his builder's contract, and al

"This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract according to the provisions of law governing same, and may be sued upon by them as if made directly to them."

Section 3872, R. LA 1910, is as follows: "Assignment of Liens.-All claims for liens and rights of action to recover therefor shall be assignable so as to vest in the assignee all rights and remedies herein given, subject to all defenses thereto that might be made if such assignment had not been made. Where a statement has been filed and recorded as herein provided, such assignment may be made by an entry, on the same page of the mechanics' lien docket containing the record of the lien, signed by the claimant, or his lawful representative, and attested by the clerk; or such assignment may, be made by a separate instrument in writing."

right to bring this suit. The bond provided

that it was made for the use and benefit of

It appears that under the provisions of the go to hold the said Mullendore harmless statute supra, the lienholders had a right to against all liens for labor and material fur-assign their lien to plaintiff, and he had a nished. Upon the completion of said building it appears that a number of laborers and materialmen had filed liens against said building as provided by statute, and that they had assigned their lien claims to plaintiff, John W. I Wilson, who brought a suit upon the contractor's bond to compel the payment of these claims. In the court below, on motion

of defendants, Mullendore was made a party defendant, and the evidence tends to show

that he had not settled in full with the contractor, and that upon the trial of the cause

below he stated that he was due $1,423.29, and paid that sum into court to be applied on plaintiff's claims, and the other defendants then consented that judgment should be rendered against them for $1,694.42, the balance of amount sued for. At the time of the payment of the money into court by Mullendore and the rendition of said judgment against defendants the question of attorney's fee as provided in said bond was reserved by the court for further consideration, and at a later date, upon a trial of this issue, the court held that plaintiff was not entitled to an attorney's fee, and from this finding of the court plaintiff has perfected his appeal, and comes up on the question of attorney's fee alone; and this question involves the construction of two paragraphs of said bond, which are as follows:

"Now, if the said J. L. Vander Molen, principal obligor, shall well and truly perform such contract, and complete said building according to said contract and the plans and specifications of the architect and his drawings of same, together with any alterations, changes, conditions made thereto or extra work ordered same to be under the orders of superintendent W. N. Meredity and shall pay and discharge all indebtedness incurred under said contract, and shall hold said obligee free and harmless from all claims, demands, and liens arising therefrom on the part of laborers or subcontractors and the furnishers of material, in the employ of or from the order of said obligor or his agents, as well as all costs, including attorney's fees in enforc ing the payment and collection of any claim incurred thereon, and shall perform said contract within the time therein specified, then 171 P.-70

all persons who might become entitled to liens under said contract according to the provisions of law governing the same, and might be sued upon by them as if made diIrectly to them.

In other words, the plaintiff, who was the

assignee of the original lienholders, had two remedies: (1) By foreclosing his liens which were fixed upon the property, and have the same sold; or (2) to resort to the bond to compel the payment of their liens. This latter course was the one pursued. The question as to liability of the bondsmen to the lienholders for the amount due them seems to be very plain from the very terms of the bond hereinbefore set out, and also that it was intended that the bond was to cover au attorney's fee. The parties to the bond had the conceded right to make their contracts in what form they pleased, provided they conformed to the law of the land, and, besides, it is eminently just that a creditor who has incurred an expense in the collection of his debt should be reimbursed by the debtor by whom the action was made necessary and the expense entailed. Our courts have upheld the validity of a stipulation in a contract to pay attorney's fee; that is, they have held that a note containing the provision for the payment of attorney's fee is both valid and negotiable.

Defendants in their brief contend that the provision for the attorney's fee is unconstitutional, but the cases cited to support their contention are cases wherein the statute undertook to tax the losing party with an attorney's fee. In the present case the parties were not attempting to proceed against the property upon which their lien had been fixed in order to collect the amount due them, but were resorting to the terms of the contractor's bond, and in this bond it specifically provided that the defendants would pay an attorney's fee.

There seems to be no more reason why

It is not a part of the duties of trial courts to summarize the evidence as viewed from the conflicting viewpoints of the adversary parties. 10. APPEAL AND ERROR 1066-HARMLESS ERROR-INSTRUCTION - SUMMARIZING EVI

DENCE.

SUM-1 second defense is a plea of estoppel based upon a letter written by the federal bank examiner, R. W. Goodhart, to plaintiff, which is fully discussed in the former opinion herein, and will not now receive further notice. The reply admits that Sheridan, who was president of defendant, withdrew plaintiff's money, but denies that he had any authority for such action. It will therefore be observed at once that, since the plea in estoppel was eliminated by the former opinion in this case, De War v. First National Bank, supra, there remained but one fundamental issue in the pleadings, which is: Did the plaintiff authorize T. R. Sheridan to withdraw her money from the bank and lend it? If she did, she cannot recover in this action. If she did not, then the character in which

In a bank depositor's action to recover her deposit, the trial court's instruction, which did not purport to instruct the jury on any question of law involved in the controversy, but was merely a fragment of the court's summary of the evidence, as viewed from the conflicting viewpoints of the several parties, although disapproved, was not reversible error. 11. BANKS AND BANKING

154(9)-ACTION

BY DEPOSITOR-INSTRUCTION. In a bank depositor's action to recover her deposit, where the bank claimed that plaintiff had authorized its president to withdraw her deposit and lend it on her behalf, plaintiff's testimony, on the question of the president's authority to act for her, that she told him she he withdrew it is of no consequence, and would not mind putting her money out on in- whether he got possession of it in his caterest if she could get good security, etc., jus-pacity as president of the bank, or as a comtified the language of an instruction stating the basic principle that not even the president of a bank can withdraw a depositor's money without authority, and that, if he does so, the bank will be held liable for his wrongful act. 12. BANKS AND BANKING 112-WITHDRAWAL OF DEPOSIT-AUTHORITY OF PRES

Department 1. Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.

Action by Marie De War, also known as Mrs. W. T. De War, against the First National Bank of Roseburg, Or., a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

This is the second appeal in this case. The pleadings are set out at length in the opinion of this court in the former appeal, and it is therefore unnecessary to repeat them here. De War v. First National Bank, 80 Or. 260, 156 Pac. 1038. Upon the first trial there was a verdict and judgment for plaintiff, from which defendant appealed, and the judgment was reversed, and the cause remanded for a new trial which has been had, resulting as before, and defendant again appeals.

O. P. Coshow, of Roseburg, for appellant. B. L. Eddy, of Roseburg, for respondent.

mon burglar, would not in any degree affect the bank's liability to its depositor. Upon this issue the plaintiff testifies quite positively that she did not authorize Sheridan to withdraw her deposit, while he with equal certainty asserts that she did. This presents a question exclusively for the determination of the jury, which by its verdict has decided the issue in favor of plaintiff. In the light of this situation let us consider the assignments of error.

[3, 4] Defendant urges that the court erred in the admission in evidence of the contract of sale between the defendant and the Douglas National Bank. The record discloses that the offer was expressly limited to a page of the exhibit called "Schedule D," consisting of a tabulated list of promissory notes taken over by the latter bank, including a note for $5,000, signed by A. M. Kelsay. The document is undoubtedly immaterial, without any remote tendency to establish any of the issues in the case, but it is apparently so free from any probative value as to be harmless.

[5] It is next urged that the court committed error in refusing six several instructions requested by the defendant. Those numbered 1 and 6 are to the effect that national banks have no authority to lend money for other than themselves, and that, if Sheridan loaned her money, he did it as her agent, and not as president of the bank. As to these instructions it is enough to say that there is no issue upon the question of the bank having loaned plaintiff's money, and, being outside of the issues, they were properly refused.

BENSON, J. [1, 2] The issues made by the pleadings are very simple and clear. The complaint alleges a deposit of money in the defendant bank and the refusal of the latter to repay it upon demand. The answer denies the allegations of the complaint, and then pleads two affirmative defenses, the [6] Regarding the requested charges first of which is that the plaintiff authorized numbered 3 and 4, it may be said that the T. R. Sheridan, as her agent, to withdraw substance of both of them was fully given $3,000 of her deposit and lend it for her, to the jury by the court in its own instrucwhich he did, to one A. M. Kelsay, taking the tions. latter's note therefor, which was afterward [7] The requested instruction No. 5 is as delivered to plaintiff at her request. The follows:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"If you find from the evidence that at the time it is claimed the plaintiff's money was loaned by T. R. Sheridan to A. M. Kelsay, and for some time thereafter the plaintiff was looking to Mr. Sheridan to collect the interest and the principal and return the same to the plaintiff, and that she made no application to the defendant or any of its officers other than Mr. Sheridan for the return of such money, principal or interest, that would be a circumstance which you would have a right to consider bearing upon the question of defendant's liability."

This paragraph represents a class of requests which has been condemned by this court many times. In Saratoga Inv. Company v. Kern, 76 Or. 243, 148 Pac. 1125, this court says:

"The law neither raised nor declined to draw an inference from the transactions alluded to by the court, and it was error to advise the jury of the effect of particular acts which, because of the nature of the controversy, constituted the cynosural facts, when there was evidence in the case which could rightfully be considered in the

same relation.”

The cases there cited may be profitably examined upon the same subject. The request was properly refused.

[8] The instruction numbered 7, which goes to the question of ratification of the alleged agent's acts, is subject to the same criticism, and the further one that it omits an essential feature of ratification, which is that the acts which are relied upon to establish ratification must have been performed with full knowledge of what had been done, and of the surrounding facts and circumstances, and it was not error to refuse it. [9, 10] It is also urged that the court erred in giving three specified instructions, the first of which is as follows:

"It is claimed also in this case that the evidence tends to show that the transaction by Sheridan was fraudulent in its nature; that is, that he. as president of the bank, had control of plaintiff's money, and that he used this position-that is, the president of the bank-in getting this money out without her authority, and that he loaned it or gave it over to a person who was worthless, financially insolvent, and that the money was turned back into the bank, crediting a worthless or poor account in the bank, and it is claimed that this was a fraud upon the plaintiff, and that it was only a means or device used by Sheridan, using his position there in the bank, to get plaintiff's money."

the controversy, but merely to be a fragment of the court's summary of the evidence as viewed from the conflicting viewpoints of the adversaries. It is unfortunate that trial courts should indulge in this practice. It is in no sense a part of their duties, and we wish to record our disapproval, but in State v. Brown, 28 Or. 147, 41 Pac. 1042, it was held not to be reversible error, and this view has never since been abandoned.

[11, 12] It is next urged that it was error to give the following instruction:

"I further instruct you that in this case, if you find from the evidence that the plaintiff authorized the defendant bank through its president to find a good loan or loans for the plaintiff, that fact would not of itself authorize the president of the bank to sign the name of the plaintiff to a memorandum check or other check withdrawing plaintiff's funds from the bank or transferring it to the credit of another. No one the bank or transfer them to the credit of ancould lawfully withdraw plaintiff's funds from other unless expressly authorized so to do, and if her funds were so withdrawn or transferred without plaintiff's authority by T. R. Sheridan, as president of the defendant bank, then the fact that Sheridan had no such authority for bank itself is chargeable with knowledge of the the reason that the knowledge, as president of the bank, was the bank's knowledge, and his act was the act of the bank."

Defendant argues that this is misleading in that it tends to impress upon the jury that the plaintiff authorized the bank, through its president, to find a loan, and that the bank is chargeable with the acts of Sheridan as its president, and that it is contrary to the evidence. The testimony of the plaintiff upon the question of authority is as follows:

"I happened to be in the bank, and we were talking-we got started to talking about the money, and I will not say, or could not say, how it was, but he advised me to put it out on interest. He said it is laying there and not doing any good, and I told him I would not mind putting it out on interest, provided I could get good security and where it was perfectly safe, and he said, 'We are having calls every day, where it is just as good as gold,' and they could put my money out, and there was nothing stated then. I told him I would not put it anywhere without consulting my husband, and only for a short time if I put it out at all, and I must have good security; and I I considered good security would be a mortgage on some property, that it would be equal or betsub-ter than the value of the amount. Q. Did you be- tell Mr. Sheridan at that time or at any other pre-time that he might draw your money out and make a loan? A. No, sir: I supposed, if we come to an agreement, I would have to take the money out. Q. Did you ever take it out? A. No, sir; I never did. I never was asked to."

Defendant contends that this portion of the charge instructs the jury upon the ject of fraud, and that it is erroneous cause fraud is not pleaded. The court ceded this paragraph in his address to the jury with the following:

"The court will call your attention to what is claimed by the respective parties to be the evidence in this case, gentlemen, not for the purpose of telling you what the facts are, or giving you any impression of the court as to the facts, but in order that you may better apply the law as the court shall give it to you upon the facts as they appear in this case, or as you may find them to appear. You are the judges of the facts entirely. It is only the duty of the court to instruct you as to the law applicable to the facts."

It will be seen that the paragraph which is challenged does not purport to instruct the

This testimony, in our opinion, justifies the language of the instruction, which, as a whole, simply states the basic principle that not even the president of a bank can withdraw the money of depositor without her authority, and that, if he does so, the bank will be held liable for the wrongful act of its officer. The instruction is not erroneous.

Defendant also challenges the correctness of the following paragraph of the charge: "I instruct you that, if defendant, through its