not care to add more than that the allowance of attorney's

fees under the above circumstances was not error.

The judgment is affirmed.

RUDKIN, C. J., CHADWICK, CROW, MOUNT, PARKER, and DUNBAR, JJ., concur.

[No. 7534. Decided May 6, 1909.]

J. S. BROWN & BROS. MERCANTILE COMPANY,
Respondent, v. W. H. SHERROD et al.,
Appellants.1

APPEAL-REVIEW-FINDINGS.

EVIDENCE-WEIGHT AND SUFFICIENCY. The undisputed testimony of an interested party is not conclusive or binding upon the court. Findings will not be disturbed because contrary to the undisputed evidence of an interested party where the same was not reasonable or in harmony with established facts, and the trial judge had opportunity to pass upon his credibility.

Appeal from a judgment of the superior court for King county, Tallman, J., entered January 7, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a promissory note. Affirmed.

Totten & Rozema, for appellants.

Leopold M. Stern, for respondent.

CROW, J.-This action was commenced by J. S. Brown & Bros. Mercantile Company, a corporation, against W. H. Sherrod and Mildred Sherrod, to recover on a promissory note. From a judgment in favor of the plaintiff, the defendants have appealed.

There is no material dispute on any questions of law, although some are discussed in the briefs. The controlling 'Reported in 101 Pac. 481.

assignment of error is that the findings are not sustained by the evidence, but we conclude they are sustained by its clear preponderance. The note was originally executed in Colorado by The W. H. Sherrod Mercantile Company, a corporation, was payable one day after date, and was indorsed by the appellants W. H. Sherrod and Mildred Sherrod. The respondent alleged, and introduced evidence to show, that it was executed by the maker for the accommodation of appellants, who were then residents of the state of Colorado, officers of, and owners of the capital stock of, The W. H. Sherrod Mercantile Company; that they indorsed their names on the note at the time of its execution as a part of the same transaction, and before its delivery; that each of them knew and understood the note would not be paid at maturity; that they agreed it should not be presented to the maker for payment when due; that immediately after its execution they left the state of Colorado; that as soon as possible respondent, exercising due diligence, notified appellants that the note had not been paid; that thereafter each of them in writing notified respondent it would be paid by the appellant W. H. Sherrod; that under the laws of Colorado introduced in evidence, notice of dishonor to appellants as indorsers was unnecessary, and that they were not discharged from liability.

Appellants insisted that they were only indorsers for The W. H. Sherrod Mercantile Company; that they indorsed the note on the day of its execution but after its delivery; that it was not executed and delivered for their accommodation; that under the laws of Colorado they were entitled to notice of dishonor, and that they had been discharged from liability for the want of such notice. Their principal argument is that the trial court should have accepted and credited the evidence of W. H. Sherrod, which they claim was undisputed and in which he testified to his version of the actual transaction between the parties. He was a party directly interested in the result of this action. Courts and juries are not compelled to accept the undisputed testimony of an interested

party if it does not appear to be credible. Coey v. Darknell, 25 Wash. 518, 65 Pac. 760; Keene v. Behan, 40 Wash. 505, 82 Pac. 884.

In Gosline v. Dryfoos, 45 Wash. 396, 399, 88 Pac. 634, we said:

"It is a well-established principle of law that neither courts nor jurors are bound by the uncontradicted testimony of an interested party when such testimony, upon being carefully weighed, does not commend itself as worthy of belief. If by reason of improbable and inconsistent statements, the testimony of an interested party appears to be lacking in the element of truthfulness, courts and jurors may, in their discretion, reject the same. This is undoubtedly what the trial court did in weighing the appellant's sworn statement, and its right to so proceed has been recognized by this court."

The evidence mentioned does not impress us as reasonable or credible. It is not consistent or in harmony with established and admitted facts and circumstances pertaining to the execution of the note and surrounding the parties. The trial court saw the appellant, heard him testify, was in a position to pass upon his credibility, and evidently rejected his statements as unworthy of belief.

We find nothing in the record to justify us in disturbing the findings. The judgment is affirmed.

MOUNT, PARKER, DUNBAR, and CHADWICK, JJ., concur.

May 1909]

Opinion Per MOUNT, J.

[No. 7493. Decided May 11, 1909.]

ISADORE LEASER, Appellant, v. JOHN LEASER, Respondent.1

DIVORCE-DECREE-DIVISION OF PROPERTY. In granting a divorce and making a division of real estate, it is immaterial whether the only property of the parties was separate estate of the husband.

SAME. In granting a divorce to a wife on the ground of cruelty, leaving her with five minor children to support (four by a former marriage) it is an abuse of discretion to award her but $350 out of property of the value of $1,600, and ten dollars per month for the support of an infant child, where her husband was an able-bodied man earning from $3.50 to $5 per day eleven months in the year; and the decree will be modified on appeal so as to award her the whole of the property.

Appeal by plaintiff from a judgment of the superior court for Spokane county, Kennan, J., entered March 9, 1908, directing the payment of alimony awarded by a decree of divorce, after a trial on the merits before the court. Modified.

Charles Grant and Joseph Rosslow, for appellant.
Scott & Campbell, for respondent.

MOUNT, J.-The appellant brought this action to obtain a divorce from the respondent. After issues were joined and a trial had, the lower court granted the plaintiff a divorce from the defendant upon the ground of cruelty. She was awarded the care and custody of an infant child. She was also awarded the sum of $350, which was made a lien upon lots 4 and 5, of block 15, of resurvey of Second addition to Third addition to Railroad addition to Spokane, in Spokane county. This was the only property owned by the parties to the action. The defendant was also required to pay $10 per month for the support of the infant child. The plaintiff has appealed from that part of the decree awarding her $350 and $10 per month.

'Reported in 101 Pac. 705.

Opinion Per MOUNT, J.

[53 Wash. The lots above mentioned, with the improvements, were worth at the time of the trial about $2,500. They were incumbered by a mortgage of $900. The parties own no other property. The appellant at that time was forty-three years of age. She had four minor children by a former marriage, and one child three years of age by the respondent. She has no means of earning a livelihood except by the work of her hands. The respondent is a strong, able-bodied man, a carpenter and brick mason by occupation, and capable of earning from three and one-half to five dollars a day, and worked on an average about eleven months in the year. There is some contention in the case whether the real property above described is or is not the separate property of the respondent. This question may be dismissed without consideration, because the statute provides that the court shall make such disposition of the property of the parties as shall appear just and equitable, having regard to the merits of the respective parties, and we have held that there is no distinction between separate and community property in this regard. Claiborne v. Claiborne, 47 Wash. 200, 91 Pac. 763; Ramsdell v. Ramsdell, 47 Wash. 444, 92 Pac. 278.

In this case the trial court found that the appellant was entitled to a decree of divorce because of cruelty of the husband, and that she should have the care and custody of the infant child. This left the appellant with five minor children, four by a former marriage and one by the respondent. In view of these facts and the further fact that the respondent was an able-bodied man, earning from three and one-half to five dollars per day, for eleven months in the year, and in view of the fact that the real property was worth only about $1,600 net, we think the trial court should have awarded the whole of this property to the appellant, and abused its discretion by not doing so.

The cause is therefore remanded to the trial court, with directions to modify the decree so as to award the whole of