properly refused consideration on a motion for a new trial, since the alleged misconduct inhered in the verdict, which could not be impeached by a juror. Appeal from superior court, Spokane county; Leander H. Prather, Judge. Action by W. H. Marvin against George W. Yates, as executor of the estate of Lafayette Woodward, deceased, to recover for services rendered said deceased. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Danson & Huneke and Hahn, Belden & Hawley, for appellant. W. C. Jones and P. F. Quinn, for respondent. HADLEY, J. The complaint in this cause avers, in substance, that between the 1st day of January, 1887, and the 1st day of January, 1893, the respondent, at the special instance of Lafayette Woodward, now deceased, rendered continuous services to said Woodward in the management of his business, property, and affairs in Spokane county, which services were of the reasonable worth and value of $400 per annum; that on or about the 1st day of January, 1887, respondent and said Woodward entered into an agreement whereby said Woodward agreed to furnish respondent funds for investment in real estate in the city of Spokane when, in the judgment of respondent, such investment would be profitable; that the said real estate so purchased should be sold when, in respondent's judgment, it was advisable to do so, and respondent should receive as compensation for his services in making such investment one-half of the net profits realized by the sale of such property; that in pursuance of said agreement respondent purchased a large amount of real estate in the city of Spokane, a part of which was sold at a large profit, and a part of which said Woodward refused to sell when advised and requested by respondent so to do, and the same is still held and owned by his estate; that the profits resulting from the said investment in which the property was sold or otherwise disposed of amounted to more than $14,100, and the profits that would have accrued to respondent upon the other property when respondent advised its sale amount to more than $4,000. It is further alleged that on or about the 1st day of June, 1889, respondent and said Woodward had an accounting concerning the matters hereinbefore set forth, and said Woodward then promised to convey or bequeath to respondent, in payment of the claim above set forth, a certain lot and the building thereon situate in the city of Spokane, known as the "Howard Saloon," and that said property now is, and at all times since said settlement has been, of the value of more than $12,000; that in the month of March, 1899, said Woodward died at Minneapolis, Minn., his place of residence, and left a will, wherein he bequeathed the said property above men tioned, and all other property belonging to him at the time of his death, to other persons than respondent. It is next alleged that on the 19th day of May, 1899, the appellant, George W. Yates, was by the superior court of Spokane county duly appointed executor of the will of said deceased, Woodward; that on the 28th day of June, 1899, respondent presented his claim against the said estate to said executor, which was on the same day by him rejected. The complaint concludes with a prayer for judgment in the sum of $11,850. A demurrer to the complaint was, by the court, overruled, and exception to such ruling was duly taken by appellant. Thereupon appellant answered the complaint, and admitted the death of said Woodward, the appointment of appellant as executor, and the presentation and rejection of the claim, as alleged in the complaint. The remaining material allegations of the complaint are denied, and it is alleged affirmatively that, if any agreements were made, they were made orally, and not in writing, and that the last services performed by respondent, if any were performed, were rendered not later than January 1, 1893, more than three years prior to the bringing of this action. The reply alleges that during all of the times mentioned in the complaint the said Woodward was a resident of the state of Minnesota, and was not in the state of Washington, where the respondent resided, except casually, while passing through the state, and that he never stopped or remained in the state of Washington during said time to exceed 90 days in the aggregate. Upon the issues thus formed a trial was had before a jury. The appellant introduced no evidence. A verdict was returned in favor of respondent for the sum of $9,450. A motion for a new trial was interposed by appellant, which was, by the court, denied, and judgment was thereupon entered against appellant for the amount of the verdict. From said judgment this appeal is prosecuted. It is assigned as error that the court overruled the demurrer to the complaint. Upon the motion of appellant before the demurrer was filed, the respondent furnished a bill of particulars showing that the alleged agreements were oral. It is therefore argued upon demurrer that, if the complaint states a cause of action at all, it is one upon an account stated; that respondent must be confined in his proof to the account stated, and must recover upon that theory, if at all; and, furthermore, that the promise to convey or devise a certain piece of real estate, being oral, is within the statute of frauds, and cannot be enforced. Appellant's counsel urge this theory of the complaint with much energy. The court below adopted a different view of the complaint, and, we think, was not in error in that particular. The averment with regard to the agreement at the time the accounting was had is that the de ceased, Woodward, promised to convey or bequeath a certain piece of real estate, which was and still is worth more than $12,000. The prayer of the complaint asks for judgment in the sum of $11,850. If respondent had intended his complaint to be. one upon an account stated, he certainly would have demanded judgment for the full value of that which he alleges he was to receive under the agreement at the time of the so-called "accounting." That value is stated to be more than $12,000. He, however, alleges that he performed certain services of a given value, and that in pursuance of the agreement concerning investments in real estate there accrued profits of stated amounts, to one-half of which he is entitled. One item of accrued profit is stated as being "more than $14,100," and another as "more than $4,000." An aggregate of these is more than $18,100. One-half of the amount specifically stated as profits is $9,050, and, if there is added to that sum $2,400 as the amount alleged to be due for six years of services, the sum becomes $11,450. The prayer of the complaint is for $400 more, presumably to cover the margin of the additional amounts indicated by the language of the complaint as above shown. We think a reasonable interpretation of the meaning of the pleader is that the averments concerning the accounting and the promise then made are intended to be in the nature of evidentiary matter, and as showing an admission of liability on the part of the deceased, Woodward. Appellant urges that, if the complaint is not treated as one upon an account stated, then there is an improper commingling of two causes of action,-one upon a quantum meruit for services rendered, and one upon the contract as to division of profits. The demurrer, however, does not specify that ground of objection. The only grounds mentioned are that the complaint does not state facts sufficient to constitute a cause of action, and that the action has not been commenced within the time limited by law. The trial, therefore, properly proceeded upon any cause or causes of action stated in the complaint. That the complaint stated cause of action against general demurrer, we think is clear. As to the second ground of demurrer,--that the action was not commenced within the time limited by law,It appears upon the face of the complaint that the deceased, Woodward, resided in the state of Minnesota at the time of his death. It is true, the complaint does not show the length of time he had resided in Minnesota, but the reply states that during all the times of the transactions mentioned in the complaint he resided continually in the state of Minnesota, and this statement is sustained by the proof. Even if it should be said that the demurrer was technically erroneously overruled upon that ground, it, in any event, proved to be harmless to appellant, in view of subsequent developments of the case. a A number of errors are assigned upon the rulings of the court upon the introduction of testimony. We will not discuss them in detail, since we believe no material error was committed. We think the deeds admitted in evidence were sufficiently shown to be connected with the real estate transactions to permit them to go to the jury. It was objected that the recitals therein as to prices were not conclusive. Respondent did not undertake to maintain that they were conclusive, but only that they were prima facie evidence of amounts. The amounts have not been disputed by any evidence of appellant, and they must, therefore, be held to be conclusive in so far as they are not shown to be incorrect by other testimony. It is assigned as error that the court permitted respondent to testify in violation of the statutory rule prohibiting a claimant from testifying concerning transactions had by him with, or statements made to him by, the deceased person. We think the court did not permit a transgression of the rule. Respondent was instructed by counsel to exclude from his answers anything concerning personal transactions with Woodward, or any conversations between them about such transactions. This, we think, respondent did. He testified that he looked at certain lots when he was alone, stating the time when he saw them, their value, and that deeds were afterwards made for the property; but he did not say anything at all about the conversations or transactions between himself and Woodward. Considering the difficulties attending the proofs in this class of cases, and the usual temptation to transgress upon the statute, we think the respondent kept well within the rule as interpreted by this court in Ah How v. Furth, 13 Wash. 550, 43 Pac. 639. It is insisted that the court erred in not sustaining appellant's challenge to the legal sufficiency of the evidence at the close of respondent's testimony. The averments of the complaint are that respondent was to receive one-half of the net profits arising from the real estate investments. There was evidence as to the amount of profits in gross, and it also appeared in evidence that rents accruing from some of the property had been collected, and also that expenses had been incurred for taxes, insurance, and repairs; but it does not appear what amount of rent was collected, or what amounts had been expended for the purposes above mentioned. It is therefore argued by counsel that the jury could not determine the amount of the net profits from the evidence. The consideration of this question seemed to us at first to be fraught with considerable difficulty. Having in mind, however, the rule that the verdict of the jury should ordinarily be sustained, if there is reasonable evidence to sustain it, we have carefully examined the evidence with a view to ascertaining if this verdict can be sustained under the tes it, under the circumstances, reasonably devolved upon appellant to show it. Presumably the books and accounts of the deceased were in possession of appellant, as his executor, and the executor was therefore possibly in position to show this fact even more conclusively than respondent could have done. The verdict, being for more than $2,500 less than the $12,000 amount stated in the above testimony, we think is sustained by said testimony, and that the challenge to the legal sufficiency of the evidence was properly denied. timony. The witness Empey testified that It is urged as error that the court denied the motion for new trial on the ground of misconduct of the jury. One juror, who seems not to have joined with the eleven others in the verdict, makes affidavit that the jurors, who returned the verdict reached their conclusion without making any calculation of the amount due, except to deduct the claim of $400 per year for services from the amount prayed in the complaint. This amount for six years was $2,400, and the deduction of that amount from the $11,850 demanded in the complaint leaves just the amount of the verdict. While it is true that the one juror appears not to have joined in the verdict, still he was a member of the jury that returned the verdict, and we believe the same rule should apply to his affidavit as would apply to those of the other jurors. Affidavits of jurors will be received to show misconduct of the jury where they do not state alleged facts which necessarily inhere in the verdict itself. The affidavits must state facts concerning the acts of the jurors only. It is not for a juror to say what effect certain conduct may have had upon the verdict, because of the well-known principle that he cannot be heard to impeach the verdict; but the court must determine from the facts stated what effect, if any, the alleged misconduct had upon the verdict. State v. Parker (Wash.) 65 Pac. 776. The affidavit in this case does not allege any facts as being misconduct except that the jury reached its verdict by a certain method of calculation. This alleged misconduct inheres directly in the verdict itself, and cannot be considered. heretofore stated, there was evidence, in our opinion, to sustain the amount of the verdict, and the court cannot inquire into the mental processes by which the jurors determined the amount returned. Only facts which relate to the acts of the jurors or to influences brought to bear upon them outside of the evidence can be considred in this connection. We think the court did not err in striking the affidavit of the juror, or in denying the motion for new trial. For these reasons we believe the record does not contain any substantial error, and the judgment is therefore affirmed. As REAVIS, C. J., and FULLERTON, ANDERS, DUNBAR, MOUNT, and WHITE, (26 Wash. 4) YOUNG. BORZONE et ux.1 (Supreme Court of Washington. Sept. 3, 1901.) MUNICIPAL CORPORATIONS PAVING CONTRACTS PRIVATE CONTRACTORS LIENS CONSTITUTIONALITY OF STATUTE - COUNTERCLAIM - TENDER-EFFECT OF-ALTERATION OF CONTRACTS-LIEN NOTICE-EXCEPTIONS-APPEAL-SUFFICIENCY OF BRIEF. 1. An appeal will not be dismissed because the appellant's brief fails to state the findings of fact and conclusions of law requested by appellant, as required by subdivision 5 of rule 8 (40 Pac. x.) in all cases tried by the court, when such findings and conclusions appear in appellant's reply brief. 2. An exception, taken at the time of the signing of findings, that defendant excepts to each and every part of each of the findings of fact and conclusions of law, and which then enumerates such findings and conclusions by number, is sufficient on appeal. 3.2 Ballinger's Ann. Codes & St. § 5902, giving a lien on the property to any person who, at the request of a property owner, improves a street or road on which such property abuts, is not unconstitutional, as being a. taking of property without due process of law. 4. A contract between a contractor and the owner of property abutting on a street required the former to grade, clean, and sidewalk the street according to the plans of the city engineer, and under his directions, but the plans were not attached to the contract. Held, that the working details of the work, which were prepared by the engineer, became a part of the contract, but that it did not include provisions inserted therein by the city engineer forbidding the contractor to assign the contract, fixing a time in which the work should be completed, and providing for a deduction in the contract price if not completed within such time, as they were not a necessary part of the working details. 5. Under 2 Ballinger's Ann. Codes & St. § 4835, authorizing a counterclaim against the assignor of a chose in action to be pleaded in an action by the assignee thereon, a property owner may counterclaim damages resulting from the act of a paving contractor in placing earth excavated from the streets on the lot of the former, in an action by the assignee of the contractor to establish a lien on the property. 6. When action is brought on a contract for a certain sum, and a defendant tenders a less sum as being the amount due, and also pleads a counterclaim, the tender operates to prevent the defendant from denying the contract, and that the amount tendered is due thereon, but does not prevent him from establishing his counterclaim to the amount of plaintiff's claim in excess of the amount tendered. 7. Where a contract between property owners and a contractor for the grading of a street provides that each property owner is to pay in proportion to his interest in the abutting property, the interlineation of the clause, "Each party hereto to pay only such part of the total cost as his front footage bears to the total frontage improved in said street," is not such an alteration as will avoid the contract. 8. Where the assessment for paving a street against an abutting property owner is correct, the fact that another abutting property owner has paid more than his share does not entitle the former to a credit for a portion of the excess so paid, in an action by the contractor to establish a lien on the property of the former. 9. An allegation, in a notice to establish a lien on property abutting on a street for work done in paving a street, that plaintiff's assignor performed the labor at the request of the property owner, is equivalent to an allegation that he was employed by the owner, as required to be 'For opinion on petition for rehearing, see C6 Pac. 422. stated in such notice by 2 Ballinger's Ann. Codes & St. § 5904. Appeal from superior court, King county: Boyd J. Tallman, Judge. Suit by M. H. Young against Frank Borzone and wife to foreclose a lien for paving. From a decree in favor of plaintiff, and from an order denying a new trial, defendants appeal. Reversed. Frank P. Lewis and Horace Peter, for appellants. Preston & Embree, for respondent. WHITE, J. This is a suit in equity to foreclose a lien on certain lots in the city of Seattle for grading a street in front of such lots. Respondent moves the court to strike from the record and files the brief of the appellants, on the ground that the findings of fact and conclusions of law requested by appellants are not printed in the brief of the appellants; and respondent further moves the court that, on granting the motion to strike the brief, the appeal be dismissed. The respondent further moves the court that the judgment of the lower court be affirmed, for the reason that the exceptions of appellants to the findings of fact and conclusions of law do not specifically point out the findings complained of as erroneous. Subdivision 5 of rule 8 (40 Pac. x.) provides that in all equity causes and actions at law tried by the court without a jury the party appealing shall print in his brief the findings of fact, with the exceptions thereto, etc., and also such findings as the lower court was requested to make, with the refusal and exceptions in case any error or contention shall be based thereon. The opening brief of the appellants fails to comply with subdivision 5 of rule 8. The reply brief, however, complies with the same. This provision of the rule is for the benefit of the court. No injury can result to the respondent from failure to comply with it. Respondent is advised by the record in the case and the assignment of errors as to the points that will be urged on the appeal for a reversal. The printing of the findings, etc., in the reply brief cures the omission. The last ground urged is not well taken. At the time of signing the findings, the record shows that the appellants took exceptions in the following form and manner, which were allowed by the court: "The defendant, in open court, at the time the court signed the foregoing findings, except to each and every part of each and every of the foregoing findings of fact and conclusions of law; that is to say, to the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, and 15tu findings, to the 1st and 2d conclusions of law,-which exceptions, and each of them, are allowed, and entered in the record in this action." This was sufficient, under the rule laid down by this court in Ranahan v. Gibbons, 62 Pac. 773. The motions are therefore denied. The respondent brought this action to foreclose a lien on certain lots of the appellants fronting on Roy street, in the city of Seattle, and to recover $185.05, secured by such lien, for the grading of part of said street. At the instance and request of George Kinnear, an ordinance was passed by the city council of Seattle granting permission to Kinnear, defendant Frank Borzone, and three other persons named therein, to improve Roy street between Second avenue West and Kinnear Park, at their cost and expense, by grading and sidewalking said street under the direction of the city engineer. Under and pursuant to said ordinance the city engineer prepared plans of and specifications for said proposed improvement. These plans and specifications were partly in writing, and were set forth in a printed form used by the city of Seattle in advertising for proposals for the improvement of streets. Portions of the printed form were stricken out. The remaining portions contained many stipulations applicable to contracts made directly with the city, such as: "Material necessarily wasted from the cutting shall be disposed of as the city engineer may direct, no extra allowance being made for hauling or disposing of the same, unless the distance hauled exceeds one thousand (1,000) feet. One cent per cubic yard will be paid for every one hundred (100) feet so hauled over and above one thousand (1,000) feet for public use." "The contractor shall not assign or transfer the contract for this improvement, or sublet any of the work embraced in it, without the written consent of the board of public works." "The work embraced in the contract for this improvement shall be begun immediately after written notice so to do shall have been given to the contractor by the board of public works, and carried on regularly and uninterruptedly thereafter (unless the said board shall otherwise, in writing, specially direct) with such force as to secure its completion within ninety (90) days thereafter; the time of beginning, rate of progress, and time of completion being essential conditions of said contract. And, if the contractor shall fail to complete the work by the time above specified, the sum of twenty dollars per day for each and every day thereafter until such completion shall be deducted from the moneys payable under saiu contract." The words "ninety (90)" before "days" were inserted in a blank space left in the printed form. Under the head, "General Description of Work and Materials," is the following, all being in writing after the words "it shall consist of": "The improvement herein described is authorized by Ordinance No. 4825 of the city of seattle, and shall conform to the requirements thereof. It shall consist of clearing, grubbing, grading. parking, surfacing, sloping, constructing sidewalks, box drains, crossings, and bulkhead in the portion of Roy street above described, and the approaches thereto. The waste material from the excavation shall be deposited as follows: (1) In Roy street, where required for embankment, in the district included in this improvement. (2) In the projections of Fifth and Fourth avenues West and in Third avenue West from Roy street south towards Mercer street, as directed by the city engineer. Any clearing and grubbing necessary in any of said avenues shall be done or paid for outside of this contract, by the owner or owners of property abutting thereon. (3) On the property on the south side of Roy street as may be permitted by the owners thereof. The right to waste said surplus material shall be exercised in the order designated as above." The following typewritten agreement was prepared in duplicate, and signed by the property owners and Hadfield & Roberts: "An agreement made and entered into this 18th day of May, 1899, by and between Hadfield and Roberts, parties of the first part, and Geo. Kinnear, Violet E. Parker, Frank Borzone, John King, Helen Taylor, Ira Bronson, M. A. Parsons, and D. F. Decater, the parties of the second part, witnesseth: Said Hadfield and Roberts agree to clear, grub, sidewalk, and otherwise improve Roy street from Second Ave. West to the east side of Sixth Ave. West, or Clover street, according to the plans and specifications of the city engineer, and under his directions, as follows, to wit: All clearing and grubbing in said street for $95.00. Moving all earth, (18) eighteen cents per cubic yard. Sidewaiks, culverts, and box drains, and bulkheads, including nails and spikes, ($11.05) eleven dollars per M feet, B. M. Upon the completion of said improvements and acceptance by the city engineer, said Geo. Kinnear, Violet E. Parker, Frank Borzone, John King, Helen Taylor, Ira Bronson, M. A. Parsons, and F. D. Decater agree to pay to said Hadfield & Roberts as per prices above mentioned, each in proportion to his ownership and interest in the property abutting and proximate to said Roy street and in said grade district liable by city law to pay for said improvements on said street, as the same shall be completed and distributed by the city engineer. Description of property: [Here follows description of the property, and opposite the same the name of the owner; one of the descriptions being: "West half of vacated Meadow St., and block 23, G. Kinnear's addition," opposite which was the name "Frank Borzone."] Witness our hands and seals the day and year above written." The reason for preparing this agreement in duplicate was that some parties lived at one place, and some at another. One copy was sent in one direction, and one in another, for the signature of the owners. These two copies were introduced in evidence. The copy signed by the appellant Frank Borzone contains the following interlineation in writing after the description of the property: "Each party hereto to pay only such part of the total cost as his front footage bears to the total frontage improved in said street." The other copy, signed by some of the owners, contains the following interlineation aft |