On Petition eob Keheaeing.
White, J.The respondent, in his petition for rehearing, calls our attention to the fact that at the time of the hearing of the appeal a motion which was not incorporated in the respondent’s brief was made to dismiss the appeal because of the insufficiency of the bond of appeal and supersedeas. When the opinion in this case was written this motion was not found with the files, hence the matter suggested by the motion was overlooked, and not passed upon. The notice of appeal in this case is sufficient to identify the judgment appealed from. The judgment ap*24pealed from is the final judgment and decree signed by the judge who tried the cause, and it is signed and entered of record on the 23d day of March, 1901. The respondent, by his complaint in this action, sought to recover from the appellants $185.05 under a contract made with TIadfield -is Roberts and the appellants for clearing, grubbing, grading, sidewalldng and otherwise improving Roy street, in Seattle. Before the action was brought the appellants tendered to the respondent $140, as being all that was due the respondent for the aforesaid work. The respondent refused to accept the tender and- brought suit for $185.05 as the amount due him from appellants. The appellants, when they filed their answer, pleaded the above tender, and paid the $140 into court for the use of the respondent and in full satisfaction of his «claim. The findings of fact and conclusions of law were filed in this case on the 23d day of March, 1901, the day final judgment was signed and entered. On the 15th of March, 1901, on motion of the respondent, the court made an order directing the clerk of the court to pay over to the respondent as of March 12, 1901, the day of the trial, the $140 tender deposited by appellants. FTo objection was made by the appellants to this order. In our previous opinion we stated that the record showed that this money was drawn down by the respondent. An examination of the final decree clearij shows that we were correct in this statement. That decree recites that the one hundred and forty dollars had been ordered paid over to the respondent, and then follows the judgment in the following language:
“It is hereby, bv the court, ordered and adjudged that the plaintiff do have and recover of and from the defendants, Frank Borzone and Louise Borzone, the sum of forty-five and 5-100 ($45.05) dollars as the balance unpaid on the alleged lien of the plaintiff, and on the contract set *25forth in plaintiff’s complaint, and the further sum of seventy cents ($.70) paid by plaintiff for filing his notice of lien with the auditor of King County, Washington, and the further sum of fifty ($50) dollars as attorneys’ fees for the attorneys for the plaintiff herein, together with costs and disbursements of this action, to be taxed herein.”
The decree then establishes the lien on the lots, and forecloses the same, and orders a sale of the lots by the sheriff, etc. It is clear that the final judgment was but for $45.05 and attorneys’ fees and costs. The supersedeas was to stay the execution of this judgment. -The penalty of the bond was for $500. The condition was, “ Kow, therefore, if the said principal, Trank Borzone and Louise Borzone, shall pay to jVL II. Young, the plaintiff above named, all costs and damages that shall be adjudged against defendants on the appeal or on the dismissal thereof, and shall satisfy and perform the judgment or order appealed from, in case it shall be affirmed, and any judgment or order which the supreme court may render, or order to be rendered, by 'said superior court, not exceeding in amount or value the above original judgment, then this obligation'to be void; otherwise to remain in full force and effect.” The record in this case fails to disclose the amount of the costs, other than the attorney fee and seventy cents for filing the lien. The judgment and costs, SO' far as disclosed, amount to $95.75. The object of a supersedeas bond is to secure to the respondent the judgment recovered by him. The respondent in this case had in his possession $140 of the sum found to be due him. Tie was absolutely secure in this amount, and no bond was necessary to secure it. to him. Tor the balance, $45.05, he had a judgment, and a bond of $500 to secure the same. We think, therefore, that the bond was sufficient both as an appeal and supersedeas, and the motion should be denied.
*26One word more as to the tender. The pleadings and proofs of both, appellants and respondent, show that there was no dispute or controversy as to these facts, viz.: that a contract was made'with lladfield and Roberts by the appellants for clearing, grubbing, grading, sideivalking and otherwise improving Roy street according to plans and specifications of the city engineer of Beattie, and under his direction and control, at and upon the following rates: Clearing and 'grubbing said street, $95.00; moving earth, 18 cents per cubic yard; sidewalk, etc., $11.05 per thousand feet, board measure, and that this work had been done. Tor this work, before the action was brought, $140 was tendered by appellants to respondent. The dispute between the appellants and respondent raised by tho pleadings was as to whether the work was to be finished by September 1, 1899, and as to whether certain plans and specifications prepared by the city engineer for the work, with certain provisions contained therein, were also part of the contract. This court has found that neither the respondent nor the appellants were correct in their contention as to the connection of these plans and specifications and the provisions therein contained with the contract. It is plain from the pleadings that the appellants sought to keep the tender for the work good that they had made before the action was brought, and sought also to give their version of the contract. This, we think, they had a right to do. There is nothing inconsistent in the tender with the principal provisions of the contract, which are not disputed or controverted by either party touching the grading, etc., of the street; and that it was to be done under the plans and specifications and direction of the city engineer at the prices heretofore set out. Under the circumstances of this case it would violate equity and good conscience, and be illiberal and narrow, to hold that, be*27cause the appellants kept good their tender, they are es-topped from asserting that there were other provisions of the contract than those pleaded by the respondent. If the rule of law is as contended for by respondent, that a plea of tender admits the contract in its entirety, as pleaded by the plaintiff, as the true and only contract, then it would always be in the power of the plaintiff to prevent the defendant from keeping his tender good by pleading a contract in part, as in this case, or a different one from that actually made. Thus would the defendant be shut out from-keeping his tender good, unless he was prepared to admit the contract was as pleaded by the plaintiff. The law aims to arrive at the truth and to permit its assertion, and pleadings are for this purpose, and no rule should be upheld which retards or prevents this end. We think a plea continuing a tender, made before the action was brought, under the facts as disclosed in this case, goes only to the extent of admitting that a contract of the general nature pleaded was entered into, not that the plaintiff has correctly pleaded the contract; and after such a tender and plea the defendant cannot deny in toto any contract under which he became obligated to pay the amount tendered. Simpson v. Carson, 11 Ore. 361 (8 Pac. 325.)
When the tender was made of $140 before the action was brought, there was no obligation on the part of the appellants to pay also for filing the lien notice. It is only in the event of a suit, and when the lienor prevails, that he is entitled to recover the costs of filing the lien notice. We see no reason for changing our views as expressed in the opinion heretofore filed. The petition for a rehearing is therefore denied.
Reavis, C. J., and Fullerton, Dunbar and Anders, JJ., concur.