fied the company of his loss, and thereafter furnished said insurance company with due proof thereof, while the amended complaint admits that no proofs were ever made. The evidence fails to show that plaintiff offered, or that the company rejected, any proof of loss, as alleged in the amended complaint, or that the company, by its agent, ever told the plaintiff the loss would not be paid, thereby relieving him from the necessity of making the required proof. The plaintiff testified that, about five days after the fire, he called upon J. D. Coleman, the agent and adjuster of the insurance company, who told him the loss would be paid; that, about five or six days after the first visit, he again called upon Mr. Coleman, who then told him the company would not pay. He also testified that he saw A. F. Gartner, the general agent of the company, who told him at first that they would see about the loss, and at another time that the company would not pay it. Mr. Coleman testified that the first time he saw the plaintiff after the fire was between the 15th and 20th of July, and that he never at that or any time told him the loss would not be paid. Mr. Gartner testified that plaintiff called upon him, and wanted to know when the company was going to pay him, and that he told him the loss was payable to the German Savings & Loan Society, and that, if any money was paid on the policy, it must be paid to that society. Upon this contradictory evidence, the referee found that the company had not waived the condition of the policy which required proof of loss within 60 days from the time of the fire by informing the plaintiff that the loss would not be paid. It is impossible for the appellate court, in the examination of a record, to determine the preponderance of evidence with that degree of certainty attainable by a court or referee who saw the witnesses, heard them testify, and noted their manner and appearance while on the witness stand; and the findings made under such circumstances will rarely be disturbed when there are other facts and circumstances which tend to weaken the testimony of the defeated party, or corroborate the conclusions reached. There are several facts and circumstances which tend to impair the testimony of the plaintiff. In order to secure the insurance upon the new building, which it is claimed increased the hazard to the building in question, and which was burned at the same time, he averred in the affidavit made in proof of his loss that at the time of the fire he was occupying the new house, and, upon this proof, secured his insurance. Soon after, he made another affidavit, in which he swore that prior to and at the time of the fire the house covered by the policy in question was and had been occupied for about six weeks, while at the trial of this cause he testified that he occupied the house in question, and had slept therein nearly every night for six weeks prior to the fire. In this

he is contradicted by his neighbors, who testified that he neither occupied nor slept therein, but that he occupied and slept in the new house, upon which he received his insurance from another company. Considering these facts and circumstances, we think the referee and court were fully warranted in the conclusions reached, and that the preponderance of the evidence upon this question is with the defendant company, and that the agents of the company never told the plaintiff that his claim would not be paid as alleged in the complaint. The policy of insurance is the contract between the insurer and the insured, upon which the latter must rely for the recovery of his loss. In the case at bar, the application is for an insurance of the building while occupied as a family dwelling, and this application is referred to in the policy as the foundation upon which it must rest, and it thereby becomes a warranty of the insured that the building will be occupied in that manner. 1 Wood, Ins. § 156. The policy provides that, if the building shall be or become vacant for 10 days without the consent of the company, the policy shall become void. In Insurance Co. v. Mehlman, 48 Ill. 313, the policy provided that it should be vitiated by keeping * saltpeter, * * * and, upon proof that the insured kept a keg of saltpeter for sale, it was held that "whether saltpeter will explode or not may be a vexed question, and whether dangerous or not is immaterial. The agreement was that the assured should not keep it, and, if he did, the policy should be vitiated, and he must be held to the agreement." The agreement entered into was that the building should be occupied, and that, if it became vacant for 10 days, the policy should be void, and the insured must be held to this agreement, which was a part of his warranty. Proof of loss, as provided in the terms of the policy, is a condition precedent to recovery, (2 Wood, Ins. § 436;) and, since the plaintiff did not make it within the time prescribed, he waived his claim thereto, and for these reasons the decree is affirmed.

(24 Or. 396)

RECTOR, ETC., OF ST. DAVID'S CHURCH v. WOOD. (Supreme Court of Oregon. July 17, 1893.) SPECIFIC PERFORMANCE-CONTRACT TO FURNISH BUILDING STONE-INCIDENTAL RELIef.

Defendant agreed to furnish the necessary stone for a church building to be erected by plaintiff, and to perform the masonry work, but after doing two-thirds of the work, and being paid a much larger proportion of the stipulated price, became insolvent, and was unable to perform his contract. The stone required was of a peculiar kind and color, and could be procured only from defendant's quarry, and to use other stone to complete the building would destroy its beauty and harmony. Held, that defendant should be compelled to furnish the stone necessary to complete the building, and to permit plaintiff to enter on his premises to pro

cure such stone, and to use his derricks at the quarry and the church building in quarrying, transporting, and raising the stone.

Appeal from circuit court, Multnomah county; L. B. Stearns, Julge.

Specific performance by the rector, wardens, and vestrymen of St. David's Church against Frank Wood and another. From a decree for plaintiff, defendant Wood appeals. Affirmed.

The other facts fully appear in the following statement by MOORE, J.:

This is a suit to enforce the specific performance of a written contract under seal. The facts show that the plaintiff is the owner of certain real property in Portland, Or., upon which it is desired to erect a church building; that the defendant Frank Wood is the owner of a stone quarry in Benton county, Or., and that on May 16, 1892, the parties entered into said contract whereby the defendant agreed to furnish the necessary stone from his quarry, to dress, transport, cut, and lay the same in the walls of said building, furnish other necessary material, perform the mason work, and complete the same within 100 working days from June 5, 1892, for the sum of $16,500, payable from time to time as the work progressed, with the express agreement that plaintiff might withhold 25 per cent. of the amount found due upon the certificate of the architect until 30 days after the full completion of the contract, and, to secure the faithful performance of the conditions thereof, he executed and delivered to plaintiff a bond in the sum of $4,000. Plaintiff alleges that it duly performed all the conditions of said contract, paid defendant more than $16,200 thereon, although not more than two-thirds of the stone work has been done; that the defendant has ceased to work thereon; that the stone from said quarry is of a peculiar color and quality, and that plaintiff is unable to complete said church in a suitable manner with stone from any other known source; that, after the construction of said church was commenced, the defendant executed a mortgage on said quarry to secure a pre-existing debt of $3,000; that there are other outstanding claims against the defendant on account of said church building; that liens have been filed thereon, and that defendant is insolvent; that unless the defendant is required to furnish the stone necessary to complete said building, or if plaintiff is compelled to purchase the same, it will require then an expenditure of from $6,000 to $11,000 more than the amount of said bond; that plaintiff has paid the cost of quarrying, transporting, and dressing a quantity of stone from said quarry, which defendant is seeking to remove without plaintiff's consent, and that he is also endeavoring to sell and convey said quarry, and refuses to perform his said contract; that the defendant Virgil E. Watters is the recorder of conveyances of Benton

county, and custodian of the records thereof, and that if any mortgage or other conveyance of said quarry or of the stone therein, or that was taken therefrom for plaintiff's use, be made by the defendant, and recorded in said county, it would cause irreparable damage to the plaintiff, for which it would have no adequate remedy at law. The plaintiff prayed that said contract might be specifically performed, and the defendant ordered to furnish the stone and mason work, as therein required, or that, if he could not perform the contract, he be compelled to furnish the plaintiff the necessary stone from said quarry for the completion of said building free of charge, and that he be restrained from incumbering, conveying, or interfering with the premises on which the quarry is situated, or with any stone therein or taken therefrom for plaintiff's use, and that the recorder of conveyances be enjoined from receiving, filing, or recording any mortgage, deed, or other conveyance of the said premises, and for general relief. A temporary injunction was issued as prayed for in the complaint. The defendant Virgil E. Watters made default, but the defendant Frank Wood demurred to the complaint, alleging as ground thereof that the court had no jurisdiction to compel the performance of the contract to build, or the required manual service, or to compel the defendant to furnish the stone free of charge. That there is a defect of parties, in this: that one Virgil E. Watters, a mere ministerial officer, who has no interest in the subject-matter of the suit, and who is not shown to have done or threatened to do any act tending to render any decree ineffectual, is joined as a defendant. That two causes of suit are improperly joined, viz. to compel a specific peformance, and to convert the defendant Wood into a trustee of his own property for plaintiff's benefit. And that said complaint does not state facts sufficient to constitute a cause of suit. The court overruled this demurrer, and, the defendant Frank Wood refusing to answer further or plead, it was decreed that the said written contract be specifically performed or enforced to the extent that said Frank Wood be required to furnish the stone from his quarry necessary to fully carry out and complete said contract, and that the plaintiff, by its officers, agents, and employes, be authorized and permitted to enter upon the premises of defendant Frank Wood, and quarry, in such manner as is or may be usual or customary, the stone necessary to fully complete said church building, and to remove a sufficient quantity thereof from said quarry for that purpose; that plaintiff be permitted to use the defendant Wood's derricks at the quarry and at the church building in quarrying, transporting; and raising said stone until the further order of the court,-from which decree the defendant Wood appeals.

J. W. Whalley and R. S. Strahan, for appellant. S. H. Gruber, for respondents.

MOORE, J., (after stating the facts.) The specific performance of a building contract will rarely be enforced (Pom. Spec. Perf. § 23) upon the theory, as announced by Sir Loyd Kenyon, M. R., in Errington V. Aynesly, 2 Brown, Ch. 341, "that, if one person would not build, another might be found who would," and for the reason given by Lord. Thurlow in Lucas v. Commerford, 3 Brown, Ch. 166, "that the court could not undertake to superintend the construction of a building." Such contracts have in some instances been enforced, but they were exceptions to the general rule, and are clearly stated by Mr. Justice Miller in Ross v. Railroad Co., 1 Woolw. 26, as follows: "(1) In each case the building was to be done. upon the land of the person who agreed to do it. (2) The consideration for the agreement, in every instance, was the sale or conveyance of the land on which the building was to be erected, and the plaintiff had already, by such conveyance on his part, executed the contract. (3) In all of them the building was in some way essential to the use, or contributory to the value, of the adjoining land belonging to the plaintiff." The prayer of the complaint is for the specific performance of the building contract, provided it could be granted. But the decree does not fully comply with the prayer. If it had, there might have been just reason for its reversal. The record shows that the stone which defendant agreed to furnish is of a peculiar kind, color, quality, and texture, and that no other stone of like character can be procured; that he had furnished such stone to build about two-thirds of the walls, and, if plaint f cannot procure a sufficient quantity of the same kind to complete the work, it will be necessary to use other stone, and thus destroy the beauty and harmony of its building, or the walls must be taken down, and rebuilt with other stone; that defendant is insolvent, and therefore unable to complete his contract, although he has received nearly the whole consideration therefor. Under this state of facts, can a court of equity decree a partial performance, so as to carry out as near as possible the original intent of the parties? The contract was to furnish the stone and other material, and erect the walls. The defendant's pecuniary condition precludes a specific performance of that part of his contract which required him to furnish other necessary material, and do the labor, if such a decree were possible, (Pom. Spec. Perf. § 293;) but, if he be incapacitated from performing it in the precise terms, the court will, if it is possible, decree a specific execution according to its substance, by making such variation from unessential particulars as the circumstances of the case require or permit, (Id. § 297.)

Courts will not generally decree the specific performance of a contract to deliver personal property, (Wat. Spec. Perf. § 16;) and yet it was held in Hapgood v. Rosenstock, 23 Fed. Rep. 86, that "agreements for the assignment of a patent, and for the delivery of chattels which can be supplied by the vendor alone, are among those which will be specifically enforced." This decision was approved by the supreme court of Massachusetts in Adams v. Messenger, 17 N. E. Rep. 491. Applying these rules to the case at bar, the defendant has stone which cannot be procured from any other quarry, and plaintiff must use it, or the harmony of its building will be marred, and, since the defendant cannot be required to do that which his pecuniary condition forbids, he can be negatively required to specifically perform the contract by compelung him to allow the plaintiff to take the necessary stone to complete the building. It is a fundamental principle that equity will not decree the specific performance of a contract unless the undertaking to be enforced is founded upon a valuable consideration, moving from the party in whose behalf the performance is sought. Pom. Spec. Perf. § 57. The contract which is sought to be enforced is under seal, and this constitutes primary evidence of a consideration. 1 Hill's Code, § 753. It is sufficient, however, if some profit is to inure to the promisor, or some detriment to be sustained by the promisee. Wat. Spec. Perf. § 188. The record shows that the contract was awarded to the defendant, and that plaintiff has voluntarily advanced to him a large sum in excess of the amount it would have been compelled to pay under the contract as the work advanced. The defendant haying received the payment, he now ought not to complain or say there is no consideration for the stone necessary to complete the building. The plaintiff has already paid for sucu stone, and the defendant ought not to object to its taking the necessary quantity, since the defendant's pecuniary condition will not permit him to supply it.

The record further shows that defendant has some derricks which he uses at his quarry and at the church building for hoisting stone, which the decree provides the plaintiff may use. The stone cannot be taken from the quarry, loaded upon cars, or placed in the building without the use of these or similar machines; and, since the defendant has them, he is contributing no more than his share when required to permit the use of them by plaintiff. Such use, however, does not mean their destruction, and they must be returned in as good condition as when received, the usual wear thereof excepted. The recorder of conveyances of Benton county is enjoined from receiving for record any conveyance of or incumbrance upon the quarry premises. An injunction will not usually lie against a ministerial officer to restrain him from doing

that which the law requires as a part of his duty, but, since he has made default, it must be presumed that he acquiesces in the decree. Because the contract has proved unprofitable to the defendant is no reason it should not be enforced as far as practicable. It was fairly entered into, and each party believed it could be completed for the consideration ágreed upon, and, the court having granted such relief as was equitable under the circumstances of the case, its decree is affirmed.

(24 Or. 447)

JENNINGS v. JENNINGS et al. (Supreme Court of Oregon. July 31, 1893.)

DEED-FILLING BLANKS-Delivery.

Where the owner of land gives a deed thereof to secure a debt, and the grantee thereafter executes a deed of the land to the debtor with the name of the grantee blank, and the debtor fills in the name of his daughter, and delivers the deed to her, it conveys the title to her against him and his heirs.

Appeal from circuit court, Clackamas county; Frank J. Taylor, Judge.

Action by Edward T. Jennings against Addie C. Jennings and others to establish an Interest in certain land. Judgment for defendants. Plaintiff appeals. Affirmed.

V. K. Strode, for appellant. D. C. & C. D. Latourette and Bonham & Holmes, for respondent Addie C. Jennings.

PER CURIAM. This is a suit to establish plaintiff's right, as heir of Berryman Jennings, deceased, in certain real estate held by the defendant Addie C. Jennings. The facts are that on the 7th day of De cember, 1870, Berryman Jennings, the father of the plaintiff, and the said Addie, being the owner of the land in controversy, conveyed it by warranty deed to J. C. Ainsworth, as security for the sum of $625. Ainsworth held the title until 1880, when he concluded to forgive the debt, and reconvey the property to Jennings, or such person as he might designate, and for that purpose executed a quitclaim deed, leaving the name of the grantee blank, and forwarded it to Jennings, with a letter authorizing him to fill in the name of any person he might desire as grantee. The complaint avers that the defendant Addie C. Jennings secretly took possession of the deed soon after its execution, and, without the knowledge and consent of her father, fraudulently, and with intent to defraud her father and brothers and sisters, filled in her own name as grantee, and caused the deed to be recorded. But there is an entire failure of proof to sustain this allegation, and the facts are, as shown by the evidence, that Mr. Jennings, in consideration of love and affection, desired to give the land to his daughter, for the reason that she had contributed liberally of her earnings to the sup

port of himself and family, and, without her knowledge or solicitation, wrote her name in the deed himself as grantee, and delivered it to her, and this was sufficient to convey the title as against him and his heirs, and, in our opinion, requires an affirmance of the judgment.

(24 Or. 441)

FOSHIER V. NARVER (Supreme Court of Oregon. July 31, 1893.) ACTION ON FOREIGN JUDGMENT-SERVICE OF WRIT EVIDENCE.

1. In an action on a foreign judgment, evidence that defendant's name is John Narver, and that the summons in the action in which judgment was rendered, and which was read to him, ran against P. J. Narver, and that, therefore, he did not appear and answer the suit, is insufficient to show that the court was without jurisdiction in the original action.

2. The fact that the note on which judgment was rendered was signed P. J. Narver would not affect the question of service, but only the liability of defendant, which is not involved.

Appeal from circuit court, Yamhill county; George H. Burnett, Judge.

Action by W. E. Foshier against John Narver on a judgment. Judgment for plaintiff. Defendant appeals. Affirmed.

W. M. Ramsey, for appellant. J. E. Magers, for respondent.

LORD, C. J. This is an action upon & judgment of the district court obtained in the state of Iowa. The plaintiff alleges, in substance, that on the 2d day of September, 1891, in an action wherein William E. Foshler, the plaintiff herein, was plaintiff, and the defendant, John Narver, was defendant, a judgment was rendered by said court in favor of this plaintiff, and against the defendant, for $675 damages, and for $6 costs and disbursements, etc. The answer denies the material allegations of the complaint, and avers that, during all the time for more than 10 years last past, the defendant was, and now is, a resident of the state of Oregon; that he was not at any time or place or in any manner served with notice, summons, or process in said action prior to the rendering of such judgment. The reply denies the new matter contained in the answer. Upon issue being thus joined, a trial was had, resulting in a verdict for plaintiff, and, a judgment being rendered thereon, the defendant appeals. The errors assigned are the giving of certain instructions by the court, and the refusal to give certain instructions requested by the defendant. The judg ment rendered in the Iowa court is founded on a note made and signed by W. F. Narver and P. J. Narver at Ottumwa, Iowa, on November 20, 1874, due two years after date, and payable to J. W. Kitch. The contention for the defendant is: (1) That the service of process upon him in that case was on the wrong party; and (2) that the jury had the

right to consider the fact that the note sued on was signed by P. J. Narver, and not by him, in corroboration of his testimony to that effect.

V.

The doctrine is now well settled that the constitutional provision that full faith and credit shall be given to the judicial proceedings of other states does not preclude inquiry into the jurisdiction of the court, in which the judgment was rendered, over the subject-matter, or the parties affected by it, nor into the facts necessary to give such jurisdiction. Thompson Whitman, 18 Wall. 457; Freem. Judgm. §§ 562, 563; Black, Judgm. § 901. A defendant has a right to show by proof that he had not in fact been served with process, and, as a consequence, that the court never acquired jurisdiction over his person. Knowles v. Coke Co., 19 Wall. 58. As the defendant must bring his proof within this rule, it is essential, in determining whether his contention is tenable, to understand the facts upon which it is founded. The transcript of the proceedings in the lowa court shows that the defendant in that action was J. or John Narver, and the same name as the defendant in the present case. The notice or summons was addressed to J. Narver, defendant, and the return upon it is as follows:

"This notice came into my hand Nov. 7th, 1891, and I hereby certify that I personally served the same on the within-named J. Narver, by reading the same to him, and offered to deliver him a copy, but he refused to take it, and waived a copy of the same, in Troy township, Monroe county, Iowa, on the 7th day of November, 1891. [Signed] Daniel McCarty.

"I, Daniel McCarty, being first duly sworn, depose and say that the above and foregoing return of the within notice is correct; that I served the same as above set forth. [Signed] Daniel McCarty.

"Subscribed and sworn to before me, this 9th day of November, 1891. Signed this 9th day of November, 1891. [Seal.] C. B. Foshier, Notary Public."

The defendant admits that he was in that county and state at the time and place the return shows that he was personally served, and that a person came to him then and there, and asked if his name was Narver, which he answered in the affirmative; that this person read a notice to him directed to P. J. Narver, in an action in which W. E. Foshier was plaintiff and P. J. Narver was defendant, when he told him his name was not P. J. Narver, but John Narver, at which such person wrote or seemed to write something on a paper. Upon this state of facts the defendant contends that, if the notice served upon him was directed to P. J. Narver in a case against P. J. Narver, the service was upon the wrong party, and that he had a legal right to disregard it, as the service of such process could give the court no jurisdiction of his person. This contention is

based on the idea that the defendant's testimony contradicts the proof of service, because it shows that the name in the notice is not the name of the party served, and hence the service is on the wrong party, which he may disregard. But it by no means follows that the wrong party was served, or that there was no legal service, because the summons was addressed in a name differing from the name of the defendant served; as P. J. Narver for John Narver. For all that, the service may be on the right party. The name is a means of identity, but the right party may be served by a wrong name. It is not the name that is sued, but the person to whom it is applied. Whether the defendant served was the right or wrong party, depended, not upon his name, but whether he was the party liable. Service upon a party by a wrong name is a good service, and gives the court jurisdiction. If the party served by a wrong name fails to appear and make a defense, or submits to a judgment by a wrong name, the judgment will bind him as effectually as though rendered in his right name. In proceedings of this character the defendant may attack the jurisdiction, and show that he had not in fact been served, and that, in consequence, th court never acquired jurisdiction of his person. This is the object of the defendant's testimony. He sought to defeat the jurisdiction of the court which pronounced the judgment on which he is sued by proof that he had never been in fact served with process. This was the issue to be tried. The return shows that he was personally served, and specifies the time and place, and he admits that he was so served, but says that the notice served upon him was addressed to P. J. Narver, and not J. Narver. Process served on a man by a wrong name is as really served on him as if it had been served upon him by his right name. In such case it seems to us that the court acquires jurisdiction over his person, and, unless he appears and puts in his defense, the court is authorized to proceed to judgment. Assuming, then, that the notice served upon the defendant ran to the name of J. P. Narver, it does not follow, as a legal or logical consequence, that a service of such notice on J. Narver was service on the wrong party. On the contrary, after the defendant was so served, if he failed to appear and show that the plaintiff was not entitled to relief against him, because he was the wrong party, and not liable, when he had an opportunity to be heard on that question, the judgment established the fact that he was the right party, and the plaintiff's right to relief against him. Mr. Van Fleet says: "If John Smith is sued, and service be made personally on the wrong John Smith, he must appear and defend himself. He cannot successfully fight the officer who seizes his property on execution by showing that he is not the real defendant. The reason is a