of said town of Gilman, by the common council of said town, to hold said office at the pleasure of said council, and said McQuade immediately thereafter entered upon the duties of said office, and continued therein until his removal as herein alleged; that on the 6th day of July, 1894, said respondent, McQuade, was duly removed from said office by said council for cause deemed sufficient, by resolution entered upon the records of said council; that, immediately after the removal of the respondent as aforesaid, said Tremblay was duly appointed town marshal by the council of said town to fill the vacancy caused by the removal of said respondent as aforesaid; that said Tremblay accepted the said office, and, in the form and within the time required by law and the ordinances of said town, took and subscribed the constitutional oath of office, and filed the same with the clerk of said town, and executed the official bond required by law and the ordinances of said town, which bond was duly approved by the council of said town, and the same filed with the clerk of said town, and the said relator thereby became entitled to hold said office of marshal; that said Tremblay, after qualifying for said office and filing said bond, demanded of said respondent the possession of said office, together with all books, papers, and records thereof, and of the keys of the town jail and one certain revolver, all of said property belonging to said town and pertaining to said office of marshal,-and said respondent has at all times refused, and does now refuse, to comply with said demand; that said respondent still continues to hold, exercise, and usurp said office of marshal, to the exclusion of said Tremblay; that, by reason of the usurpation of said office by said McQuade unlawfully exercising the rights of said office, this relator has been damaged in the sum of $50." We are clearly of the opinion that this complaint states a cause of action against the respondent. If, as is admitted by the demurrer, the respondent was appointed marshal by the common council, to hold office at the pleasure of said council, and was duly removed from said office by said council for cause deemed sufficient, and the relator was duly appointed marshal to fill the vacancy caused by such removal, and accepted the office and duly qualified therefor in accordance with law, he was certainly entitled to the relief demanded in the complaint, and the demurrer should have been overruled. It appears, however, that the learned trial court was of the opinion that the complaint was defective because it failed to allege that the respondent was removed by the common council, after notice of the accusation against him, and an opportunity given to be heard in defense thereof. If it were necessary to show that notice was first given to the respondent, we still think that the allegations of the complaint were sufficient. See 2 Boone, Code Pl. p. 376. But,

as matter of fact, under the statute, no previous notice was necessary. Section 663 of the General Statutes provides that "the mayor, members of the common council, and the treasurer shall be elected by the qualified electors of such a town at a general municipal election to be held therein upon the Tues day after the first Monday in December in each year. The treasurer shall hold office for the period of one year from and after the second Tuesday in January next succeeding the day of such election and until his successor is elected and qualified. The mayor and the members of the council shall hold office for the period of two years from and after the second Tuesday in January next succeeding the day of such election, and until their successors are elected and qualified. * * ** The council shall appoint a marshal and clerk, and may, in their discretion, appoint an attorney, a pound master, a superintendent of streets and a civil engineer, and such police and other subordinate officers as in their judgment may be deemed necessary, and fix their compensation, which said officers shall hold their office during the pleasure of said council." And by section 691 it is provided that "all officers elected by the council are subject to removal by that body at any time for cause deemed sufficient." The law seems to be pretty well settled that an officer holding under statutes like ours may be removed without notice, at the pleasure of the appointing power. Judge Dillon states the law as follows: "Where an officer is appointed during pleasure, or where the power of removal is discretionary, the power to remove may be exercised without notice or hearing. But where the appointment is during good behavior, or where the removal can only be for certain specified causes, the power of removal cannot, as will presently be shown, be exercised, unless there be a formulated charge against the officer, notice to him of the accusation, and a hearing of the evidence in support of the charge, and an opportunity given to the party of making defense." 1 Dill. Mun. Corp. (4th Ed.) § 250. See, also, Throop, Pub. Off. § 361; Mechem, Pub. Off. § 454; People v. Whitlock, 92 N. Y. 191; People v. Mayor, etc., 82 N. Y. 491; State v. Burke, 8 Wash. 412, 36 Pac. 281. In the latter case this question was thoroughly discussed, and it is not necessary to recapitulate what was then said. We think the statute is too clear to admit of construction, and that the legislature, by the language used, intended to confer upon the council the power to remove the marshal for any cause deemed sufficient to themselves, and without notice to the respondent.

The judgment is reversed, and the cause remanded, with directions to overrule the demurrer.

HOYT, C. J., and GORDON, SCOTT, and DUNBAR, JJ., concur.

A contract for the sale of land providing that, if the vendee failed to pay the price or the interest thereon within a time specified, the vendor could rescind the contract, and that all improvements and payments made by the vendee should thereupon be forfeited, is a contract of conditional sale, and, in the absence of fraud, cannot be construed as an equitable mortgage, so as to relieve the vendee from forfeiture on rescission by the vendor for default in payment of interest. Gordon and Scott, JJ., dissenting.

Appeal from superior court, King county; R. Osborn, Judge.

Action by Hiram H. Pease and wife against Sutcliffe Baxter and others to recover land and to quiet title. Judgment for defendants, and plaintiffs appeal. Reversed.

Greene & Turner, for appellants. Burke, Shepard & Woods, for respondents.

DUNBAR, J. On the 6th day of August, 1890, the appellants, Hiram H. Pease and Mercie Pease, husband and wife, negotiated a sale of the land in question to Sutcliffe Baxter, one of the respondents, and Guy C. Phinney, now deceased. The amount to be paid for the land was about $26,000. The contract, which was signed by the appellants herein and by Phinney and Baxter, provided for the payment of the purchase money in installments, and that such premises should be conveyed to the grantees when the purchase price should have been fully paid, in strict compliance with the terms of the contract. The seventh paragraph of the contract is as follows: "If said parties of the second part, their heirs, personal representatives, or assigns, fail to pay the whole or any part of said purchase price or interest within the time and on or before the day above specified whereon or within which the same is by the terms of this contract due or payable, or fail to observe or do any other of the acts or things by them according to the terms of this contract to be observed or done, then the said party of the first part, his heirs, personal representatives, or assigns, may, if he or they so elect, and at his or their mere option, rescind this contract; and in that case all payments and all improvements on said premises theretofore made by said parties of the second part, their heirs, personal representatives, or assigns, shall be forfeited to the said party of the first part, his heirs, personal representatives, or assigns, and the party of the first part, his personal representatives or assigns, may forthwith re-enter upon said premises and any or every part thereof, and expel all persons therefrom." The parties of the second part entered into possession under this contract, made the payments according to the terms of the contract, until about half the 1 Rehearing pending.

purchase price, or $13,000, was paid. They also expended several thousand dollars in permanent improvements upon the land. It was, moreover, provided in the contract that the parties of the second part should keep the premises insured for the sum of $3,000. The complaint alleges that when the time came for payment of the interest due on the 6th of June, 1893, amounting to $52.08, it was not paid, and had not been paid at the time of the commencement of the action, and that the insurance agreed upon in the contract had been suffered by Phinney and Baxter to fall below the amount covenanted. Upon the failure to pay this interest, the plaintiffs elected to rescind the contract according to its terms, and served on the various parties entitled to notice the notice which the contract provided for, and demanded possession of the premises. This demand being refused, appellants brought their action under the statute to recover possession and quiet their title. The answer admitted the contract, but, among other things, pleaded affirmatively that it was the intention of the parties to consider the contract, not as a conditional sale, but as an equitable mortgage; and proof was offered, over the objection of the appellants to sustain this contention. It was also alleged in the answer that the title was defective, and that the appellants were unable to convey to them a good and sufficient title to the land in question. There were other defenses, but we think these two propositions involve all that it is necessary to discuss in this case.

It will be observed that the main contention is as to the construction of this contract; the appellants insisting that it was a conditional sale, that the conditions were not complied with, and that they were entitled to rescind the contract according to the strict letter of its terms; while the contention of the respondents is that the contract was in fact a mortgage, and that the remedy of the appellants is to foreclose the mortgage, the land being only a security for the purchase price. The fact that this case seems to involve a hardship-that, if the contention of the appellants is to be sustained, the respondents are to be deprived both of the land and of the large amounts which they have already paid as part of the purchase price, and also large amounts expended by them in improvements-has led us to a somewhat painstaking investigation of the law governing such a case; but we are convinced that as long as people are privileged under the law to make contracts for themselves, if they are unwise enough to make contracts which are burdensome, the law cannot relieve them. This case was substantially before the court in Reddish v. Smith, 38 Pac. 1003, 10 Wash. 178; and it was there decided that under the provision of a contract for sale of land, that in case the purchaser fails to pay promptly the monthly installments provided for after a demand of 30 days, the

vendor could declare the contract forfeited, was entitled to enter upon and repossess himself of the premises, and thereupon the contract should be at an end, there was a forfeiture of the payments made; and it was further decided that under such contract, if any of the monthly payments were not made by the purchaser when due, it was not a waiver of the vendor's right of forfeiture that he did not declare it until three payments had become due. The contract in the case cited is not nearly so explicit as that in the one at bar. The language discussed in that contract was as follows: "In case the party of the second part shall fail to pay promptly the monthly installments herein provided for, after a demand made on him for the same of thirty days, then the party of the first part may, at his option, declare this contract forfeited, and he shall enter upon and repossess himself of the said premises, and thereupon this contract shall be at an end." In that case it was contended that the provision was simply for the forfeiture of the contract and not for the forfeiture of the payments made under the provisions of the contract, and this court said: "While it is true that the courts will not supply language to create a forfeiture where the forfeiture is not specially provided for by the parties themselves, yet it seems to us that it was the clear, unequivocal intention of the parties to this contract that the payments made by the appellants should be forfeited, in case the respondents elected so to do, upon the nonperformance of the contract by the appellants." But in the case at bar there is no possible room for construction, and, if parties have a right under any circumstances to make provisions for a forfeiture of payments in case of a sale of land, they certainly have been particular to make those provisions specific and certain in this contract. Whether we give to the language used a technical meaning or the meaning which is ordinarily given to such words, the conclusion is irresistible that a forfeiture was provided for, or else the language used is absolutely meaningless. To prevent any misconception of the right of the vendor to elect to rescind this contract, the draftsman of the contract went beyond the ordinary form of words employed in such cases, and provided that they might, at their mere option, rescind this contract; and it was not left for the courts to determine the rights of the parties when once the vendor had elected to rescind, but it is especially provided that in such cases all payments and all improvements on said premises theretofore made should be forfeited to said party of the first part. And, as still more conclusively showing that the idea of a forfeiture was one of the prominent ideas incorporated in the contract, paragraph 8 provides that "at any time after the payment of the value of said improvements and the sum that amounts to the expenses of getting possession under

said lease, the said parties of the second part" shall have the right to rescind this contract under certain conditions; and the contract provides: "And in that case, also, all payments and all improvements upon said premises theretofore made by said parties of the second part * * shall be forfeited

to said party of the first part."

It is urged by the respondents that the principle for which they contend, viz. that the contract shall be construed to be a mortgage, is no more of a violation of the wellestablished rule that oral testimony shall not be admitted to vary or contradict the terms of a written contract than the principle which allows an instrument upon its face a deed to be proven to be a mortgage. This exception to the general rule is so well established that it cannot now with propriety be overthrown. But while that is true, and whatever may have been the reason in the first instance for the adoption of this exception, we do not think that the rule should be extended to other instruments. A deed is really a portion of a mortgage, or, in other words, the provisions which make it a mortgage are something additional to the provisions of the deed, and they are in no way contradictory or inconsistent. But here it is too evident to admit of argument that this instrument could only be construed to be a mortgage, which would destroy the right of forfeiture, by flatly contradicting the express terms of the contract itself.

It is claimed that the question of the equitable right of the vendee was not raised before this court in the case of Reddish v. Smith, supra; but while it is true that the subject was not discussed under the head of "equitable mortgages," as it is by the learned counsel in this case, the equitable interests of the vendee were contended for m that case, and the principle discussed was the same, viz. the right of the vendor to rescind the contract and enforce the forfeiture provided for. A great number of cases have been cited by the respondents to sustain their contention, all of which we have carefully examined, but none of them, we think, are in point. Most of them refer to the proposition which we have just spoken of in relation to the construction of deeds, and in none of them is there construed a contract which bears any relation whatever to the contract in question. It is true, in Fisk v. Stewart, 24 Minn. 97, the court held that "when the real nature of a transaction between parties is confessedly that of a loan of money advanced upon the security of real estate granted to the party making the loan, whatever the form of the instrument taken as the security, it is always treated in equity as a mortgage," to which is annexed as an inseparable incident the right to an equity of redemption. But it is not confessedly a loan in this case, but, according to the terms of the contract, it was a sale of real estate, and the case cited does not bear upon the

questions involved in the case at bar. In Gale v. Morris, 29 N. J. Eq. 222, which was an action to reform a mortgage, the court held that an equitable mortgage could arise from an unsuccessful attempt to make a valid mortgage deed; and this is simply in accordance with the law which we noticed above, that, where it was shown conclusively that it was the intention of the parties that the instrument in question should be a mortgage instead of a deed, the courts would construe it to be a mortgage; and none of the cases cited go further than this. No case is cited by either side which is directly in point, and we must conclude that the presumption has always obtained in all courts that where a contract was plain and specific in its terms, and no fraud is alleged, the contract must be enforced. As was said by the court in Gray v. Blanchard, 8 Pick. 284: "It is a harsh proceeding on his [appellant's] part, but it is according to his contract, which must be enforced if he insists upon it." Even if it had been proper to have admitted oral testimony to explain away or change the meaning of this contract, the evidence was not of that positive character which would be sufficient to destroy the presumption that the intention of the parties to the contract and their final agreement had been merged in the written contract. Baxter testified that he had a conversation with Pease in which Pease stated that he did not want the principal; that he wanted to get it converted into an interestbearing proposition; that he wanted to have a monthly income on which himself and wife could live. Conceding this to be true, it is not at all inconsistent with the idea that he intended to demand his right of forfeiture under the contract if the interest was not paid and his monthly income ceased; for, even construing it to be a mortgage, he would have a right to foreclose his lien upon the failure of the vendees to pay according to the terms of their contract, and that would equally destroy the idea of a monthly income. When asked if anything was said about a forfeiture or anything of that sort, the witness answered: "Nothing said about a forfeiture at all." This conversation, however, the witness testifies, was held some time during the last part of July, while the contract was entered into on the 8th day of August, and at that time something certainly was said about a forfeiture, and that was the time when these respondents should have objected to signing the contract if it embodied a different proposition from the one which they had agreed to a week or 10 days prior. They solemnly executed this contract, and, in the absence of fraud, it is conclusively presumed to speak the minds of the contracting parties. Any other construction would destroy the force and effect of all written obligations, and leave everything to the chance of slippery memory,-the very thing which a written contract is intended to guard against.

The other proposition urged by the re

spondents, that the forfeiture could not be compelled until the question of title, which is raised by the answer, had been decided,-we think, is not tenable, especially under this contract. These parties have made a law for themselves, have provided in that contract for almost every emergency, and the question of failure to give to the parties of the second part a good and sufficient deed was not neglected, for paragraph 9 provides that, upon the fulfillment by the parties of the second part of their contract, the party of the first part will give a good and sufficient deed of the premises, and, in case of failure to do so, binds himself and his heirs and personal representatives to pay them the sum of $100,000. This is the security which they saw fit to take at the time the contract was entered into with reference to the title, and they cannot now demand new or additional security.

The judgment will be reversed, and the cause remanded, with instructions to the lower court to render judgment for the plaintiffs in the case, in accordance with the prayer of the complaint.

HOYT, C. J., and ANDERS, J., concur. GORDON and SCOTT, JJ., dissent.

(12 Wash. 576) PATTON v. BARNETT, Sheriff. (Supreme Court of Washington. Sept. 16, 1895.)

ESTOPPEL-ACQUIESCENCE.

One left in charge of a stock of goods, who knew of a sale by the owner, and surrendered possession to the purchaser without objection, is estopped to claim an interest in the goods under a partnership agreement with the owner which was unknown to the purchaser.

Appeal from superior court, Lewis county; M. J. Gordon, Judge.

Action by Thomas N. Patton against John W. Barnett, sheriff, to recover goods seized under attachment. From a judgment of nonsuit, plaintiff appeals. Reversed.

Elliott & Forney and Edward F. Hunter, for appellant. Reynolds & Stewart, Millet & Harmon, and Cox, Cotton, Teal & Minor, for respondent.

DUNBAR, J. In the spring of 1891, one E. Richardson embarked in a commercial business in Chehalis in this state. After transacting business for a few months, he left, leaving his business in charge of H. W. Richardson as clerk and manager. The business was carried on in the name of E. Richardson. In February, 1893, E. Richardson executed to one W. P. Keenan a power of attorney, under which Keenan took possession of the entire stock of goods, which he afterwards sold to the appellant, and delivered to him the possession of the same. Shortly after possession of these goods was taken by the appellant, the respondent, as