and is not denied, that the appellants were in default so far as carrying out the conditions of the contract were concerned, and a party who is in default will not be allowed to rescind a contract. The rule is thus laid down in 21 American and English Encyclopedia of Law, 77: "The right to rescind belongs only to the party who is himself without default. Thus, if one having sufficient ground therefor wishes to avoid a contract, but has done some act which hinders performance by the other, or has failed in any way to perform his own part of the stipulation, his right is thereby lost to him," citing many cases in support of this proposition.

In this case, too, the appellants are further precluded by the fact that they have never tendered any portion of the amount due the plaintiffs, and, until that is done, it can scarcely be contended that they would be entitled to a rescission of the contract: See Drown v. Ingels, 3 Wash. 424.

So far as the objection raised by the appellants to the findings of fact by the court is concerned we think it was without foundation, and that the court was justified in making all said findings. We have examined all the other errors alleged, but are unable to find any substantial error.

The judgment will therefore be affirmed.

SCOTT, ANDERS, HOYT, and STILES, JJ., concur.

VENDOR AND PURCHASER-TENDER OF DEED.-Where a vendor of land agrees to convey legal title on the payment of a certain number of install. ments of purchase money, and, before those are paid, other installments become due, he may retain his legal title as security for the full amount due when the payment is made, and may use such title to compel perform. ance: Thompson v. Carpenter, 4 Pa. St. 132; 45 Am. Dec. 681.

VENDOR AND PURCHASER-FOrfeiture of Part Payments.-One who purchases real property and makes a deposit of money under an agreement that it shall be forfeited if he fails to comply with the terms of the sale cannot recover it if the sale is not completed through his fault: Donahue v. Parkman, 161 Mass. 412; 42 Am. St. Rep. 415, and note, with the cases collected.

CONTRACTS. RESCISSION of a contract cannot be sought in equity by a party whose own default caused the only obstacle to its completion and the other party is entirely without blame: Salmon v. Hoffman, 2 Cal. 138; 56 Am. Dec. 322 This question is fully discussed in the extended note to Johnson v. Evans, 50 Am. Dec. 675.

MULDOON V. SEATTLE CITY RAILWAY COMPANY.

[10 WASHINGTON, 811.]

RAILWAYS-FREE PASSES-ESTOPPEL.-One to whom a free pass is issued in contravention of law, and who avails himself of its privileges, is estopped from alleging that such pass was unlawful, for the purpose of recovering compensation for injuries suffered by him while riding upon such pass. RAILWAYS-FREE PASS, DUTY TO READ CONDITIONS.-One who accepts a free pass from a railway, on the back of which is printed a condition exempting the corporation from liability for injuries which may be sustained by him while using such pass, cannot avoid such condition by alleging that it was printed on the back of the pass, which was inclosed in a leathern case so constructed as to conceal all parts of the pass except its face. The recipient of such a favor ought to take the trouble to look on both sides of the paper before attempting to use it. RAILWAYS-FREE PASS-FAILURE TO READ. The fact that one who accepts a free pass has not read the conditions printed thereon exempting the corporation from liability should he be injured, and is ignorant of them, does not relieve him from such condition.

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Thompson, Edsen & Humphries, for the appellant.

312 STILES, J. Upon the remittance of this case after the former decision (Muldoon v. Seattle etc. Ry. Co., 7 Wash. 528; 38 Am. St. Rep. 901) the plaintiff filed a reply containing two defenses to the matter concerning the free pass set up in the answer. In the first it is alleged that at the time of receiving the pass appellant was a duly elected, qualified, and acting member of the common council of Seattle, being a member of the house of delegates from the second ward; that the pass was issued and delivered to him by respondent, with full knowl edge of all the facts, and for the reason and cause that appellant was such public officer, and not otherwise. It is further alleged that appellant received and accepted the pass so tendered as a public officer in his official capacity, and used the same to ride upon respondent's cars because of his being such public officer, and not otherwise. In the second it is alleged that the pass was delivered to appellant bound and inclosed in a leather case so constructed as to conceal all portions of the pass except the face, so that in using it in riding to and fro upon respondent's road it was unnecessary to remove it from the case, but it was only necessary to exhibit the exposed face of the pass to the conductors. It is further alleged that neither at the time of receiving the pass, nor at any time thereafter prior to the injury complained of, did the appellant ever have any knowledge, notice, or informa

tion that there was printed upon the back of said pass, or upon any part thereof, the conditions and charges set forth

in the answer.

To these defenses a demurrer was sustained, and this appeal calls for a decision as to their sufficiency. It is maintained, in the first place, that because the constitution of the state, article 12, section 20, forbids transportation companies 313 to grant passes to public officers, when that prohibition was violated by the respondent, both the pass and the condition were void, and the parties were placed in the position that the street railroad company was carrying the appellant as though he were an ordinary free passenger, and was subject to its ordinary liabilities in such cases.

Conceding the constitutional provision to be self-executing, we are unable to arrive at the conclusion from the premises. The appellant received the pass which he knew the corporation had no right to give him, and he availed himself of its privileges, and he ought to be estopped from saying that that which was the very means by which he occupied a place in the respondent's car was unlawfully given him. He was there under the license of the pass, and he cannot now be heard to say that his relation to the respondent was any other than that which he voluntarily made it.

As to the second point, it seems to us but little stronger than if the plea were that the appellant had not read what was printed, or had not looked on the back of the pass because it was not necessary for the satisfaction of the conductors. It is not alleged that the leather case was contrived so that the pass could not be easily removed from it. We think it may be fairly held that a person receiving a ticket for free transportation is bound to see and know all of the conditions printed thereon which the carrier sees fit to lawfully impose. This is an entirely different case from that where a carrier attempts to impose conditions upon a passenger for hire, which must, if unusual, be brought to his notice. In these cases of free passage the carrier has a right to impose any conditions it sees fit as to time, trains, baggage, connections, and, as we have held, damages for negligence; and the recipient of such favors ought at least to take the trouble to look on both sides of the paper before he attempts to use them.

In Griswold v. New York etc. R. R. Co., 53 Conn. 371, 55 Am. Rep. 115, a minor was held bound by such conditions which he did not read. So in Quimby v. 314 Boston etc. R. R.

Co., 150 Mass. 365, it was said of the passenger: "Having accepted the pass he must have done so on the conditions fully expressed therein, whether he actually read them or not."

Judgment affirmed.

DUNBAR, C. J., and Hoyr and SCOTT, JJ., concur.

RAILROADS-PERSONS RIDING ON PASSES-BINDING EFFECT OF CONDITIONS THEREIN.-A person accepting and riding upon a free railroad pass containing stipulations absolving the carrier from liability for negligence is bound by its terms, and cannot recover for personal injuries suffered by him through the negligence of the carrier or his servants: Muldoon v. Seattle etc. Ry. Co., 7 Wash. 528; 38 Am. St. Rep. 901, and note; Ulrich v. New York etc. R. B. Co., 108 N. Y. 80; 2 Am. St. Kep. 369, and especially note.

SPEARS V. LAWRENCE.

[10 WASHINGTON, 368.]

MECHANIO'S LIen, Claim for.—A statement in a notice of lien incorporating a contract to furnish materials and do work necessary to the painting of the building in accordance with a contract between the land. owner and the principal contractor, is a sufficient statement of the terms of the contract under which the lien is claimed.

MECHANIC'S LIEN. -THE SEPARATE PROPERTY OF A WIFE is subject to a mechanic's lien for the erection of a building thereon though she did not join in a contract therefor, if, during the progress of the work, she was about the premises with her husband and helped select the colors of the paints to be used thereon.

EVIDENCE. IF A WRITING IS SHOWN TO BE LOST secondary evidence of its contents may be received.

MECHANIC'S LIEN.-A. SURETY FOR THE PERFORMANCE OF A CONTRACT by the principal contractor, and who stipulated against the enforcement of any lien upon the building, cannot himself as a subcontractor claim and enforce such a lien, though it does not appear that the property owner will be injured should the lien be enforced.

Bruce, Brown & Cleveland, for the appellants Lawrence, Dorr, Hadley & Hadley, for the appellant Morse.

J. J. Weisenburger and J. R. Crites, for the respondents Spears & Leonard.

370 HOYT, J. The questions raised by this appeal relate to the sufficiency of the proceedings of the lower court in the foreclosure of certain liens against the property of F. C. Lawrence and his wife, Ada L. Lawrence. Such proceedings were had in a consolidated case involving a large number of

liens, all growing out of the contract of one R. C. Jordan to erect a certain building for the defendant F. C. Lawrence. The parts of the decree which are here for review relate to claims growing out of two of such liens. One in favor of plaintiffs Spears & Leonard was sustained, and a decree of foreclosure rendered thereon, from which the defendants F. C. Lawrence and Ada L. Lawrence have 371 appealed. The other relates to the claim of R. I. Morse, which was disallowed by the superior court, and a foreclosure denied, and from that part of the decree said Morse has prosecuted an appeal.

We will first examine that part of the decree relating to the lien of Spears & Leonard. It is attacked upon only two substantial grounds. The first relates to the sufficiency of the lien notice, and the other to the alleged facts that the improvement was upon the separate property of the wife, Ada L. Lawrence, and that no authority was shown from her to her husband to enter into the contract under which it was made.

As to the first we have only this to say: The lien notice set out a special contract by Spears & Leonard to furnish the materials and do the work necessary to the full completion of the painting of the building in accordance with the contract between the principal contractor and said Lawrence. And while it is true that the owner of the building would not be bound by the contract made between his contractor and the subcontractor, if it was shown to be fraudulent or improvident, yet, in the absence of such showing, it must be presumed that the contract is such as would be enforced by the courts. This being so, we think the statement of the contract in the lien notice was sufficient. There was no separate contract for the labor and for the materials, but one gross contract for every thing required in the prosecution of that particular work, and this being so there could not well be set out a claim under said contract for separate amounts for materials and for labor..

As to the fact that the improvement was upon property alleged to be the separate estate of the wife, we are not satisfied from the proofs that the real estate in question was her separate estate; but, if it was, her objection to its being subjected to the lien cannot be sustained, for the reason that such acts on her part, in connection with the erection of the building, were shown as should estop her from claiming that she