May, 1901] Opinion of the Court.-FULLERTON, J. "It is not clear whether the remedy was lost in consequence of the exhaustion of the property covered by the special liens which was of any value or whether it was barred by lapse of time, but it would not make any difference. We regard all of these latter questions as immaterial, and view the contract as one binding the city to pay only from the special fund as stated. And whatever the fact may be, for the purposes of this case we adopt the con cession that the remedy to prosecute the assessments is no longer available. But, notwithstanding this, we do not think the city should be held liable for the reasons set forth in the case referred to, although the question was not expressly decided in the opinion, it not being necessary. But the reasons for deciding against the plaintiff there apply with equal force against the plaintiffs here, although the special remedy is lost. The obligation rested upon the warrant holders to compel the officers of the city to proceed with the collection of the assessments, and, if they saw fit to allow their remedy to become lost through a failure to compel an enforcement of the assessment proceedings, they, and not the general taxpayers, must bear the consequences. They were bound to take notice of what was being done in the premises, or of any failure to proceed. If the property was exhausted and proved to be inadequate, that loss can not be imposed upon the general taxpayers. In Potter v. New Whatcom, 20 Wash. 589 (56 Pac. 394, 72 Am. St. Rep. 135), the other phase of the rule was presented. The municipality had collected the special assessment and turned the money into its treasury, after which it was converted by the treasurer. It was ruled that the municipality was responsible to the warrant holders for the safe custody of the money, and was liable out of its general fund because of the conversion. In North Western Lumber Co. v. Aberdeen, 22 Wash. 404 (60 Pac. 1115), both phases of the question were presented. The action was brought to recover upon warrants, certain of which could not be paid because the fund upon which they were drawn Opinion of the Court.-FULLERTON, J. [25 Wash. had not been made available, and certain others because the municipality had paid warrants subsequent in their order of issuance to the complainant's warrants, exhausting the fund out of which the warrants were properly payable. It was there held that the municipality was not liable for the payment of the first class mentioned out of its general fund, but was so liable for the payment of the seeond. In line with these cases may be cited the cases holding that a municipality, where it contracts for a street improvement by the terms of which payment for the improvement is to be made out of a special fund created by assessment upon the property benefited, does not incur at debt, within the meaning of the constitutional provision prohibiting municipalities from incurring an indebtedness in excess of one and one half per centum of the assessed value of the taxable property within its jurisdiction. Baker v. Seattle, 2 Wash. 576 (27 Pac. 462); Soule v. Seattle, 6 Wash. 315 (33 Pac. 384, 1080); Winston v. Spokane, 12 Wash. 524 (41 Pac. 888); Faulkner v. Seattle, 19 Wash. 320 (53 Pac. 365); Fogg v. Town of Hoquiam, 23 Wash. 340 (63 Pac. 234). But it is said the facts of the case before us take it out of the rule of the cases cited, and bring it within the rule of the case of Philadelphia, etc., Trust Co. v. New Whatcom, 19 Wash. 225 (52 Pac. 1063). In that case it appeared that the municipality, in making a reassessment to cover the cost of a street improvement, had failed to include in such reassessment anything more than the face amount of the warrants drawn against the fund, thus making no provision for the accumulated interest. The municipality was held liable for the payment of the interest out of its general fund, on the principle that it had undertaken to make the reassessment, and was bound to "do its full duty in the premises, and make such reassessment May, 1901] Opinion of the Court.-FULLERTON, J. for a sum sufficient to meet the full obligation of its contract." If there is a sound distinction between the rule of that case and the rule of the cases first cited, we cannot think the case at bar falls within it. There the municipality had ample power, so far as the record disclosed, to make the amount of the reassessment ample to cover not only the principal sum named in the contract, but the accumulated interest as well, while in the case before us it is shown that the sum that could be lawfully assessed upon the property benefited fell short of the principal sum named in the contract by several thousand dollars. But we do not think the case can be distinguished from the cases first referred to on any sound principle. To hold that a municipality will become liable out of its general fund for the payment of warrants drawn upon a special fund, if it attempts in good faith to make the special fund available, but fails in part of accomplishment because of the neglect or omission of some detail on the part of its officers, and that it will not become so liable if it fails and neglects to act in the matter at all, certainly cannot be justified by any correct reasoning. More than this, the decision is in conflict with the rule repeatedly announced by this court, both prior and subsequent to that time, to the effect that all questions affecting the assessment proceedings, not going to the jurisdiction of the municipality to make the assessment, must be taken before its council on the hearing pending the confirmation of the assessment proceedings by that body, and appealed therefrom to the courts, before the courts will inquire into their regularity or sufficiency. New Whatcom v. Bellingham Bay Imp. Co., 16 Wash. 131 (47 Pac. 236); New Whatcom v. Bellingham Bay Imp. Co., 18 Wash. 181 (51 Pac. 360); Heath v. McCrea, 20 Wash. 342 (55 Pac. 432); Annie Wright Seminary v. Tacoma, 23 Wash. 109 (62 Pac. 444); McNamee v. Tacoma, 24 Wash. 591 (64 Pac. 791). Applying the rule of the cases first cited to the case before us, it is clear that the appellant is not liable to pay the warrants sued upon out of its general fund. It neither expressly contracted to so pay them, nor did it collect the fund and misappropriate it. Nor can the respondent in this action question the regularity or sufficiency of the assessment proceedings. His remedy for any wrong done him in those proceedings was to complain to the city council while that body was sitting to hear complaints, and, if he failed to obtain relief there, appeal therefrom to the courts. The judgment is reversed and the cause remanded, with instructions to enter judgment for the appellant. REAVIS, C. J., and ANDERS and WHITE, JJ., concur. [No. 3417. Decided May 13, 1901.] PATRICK DOLAN, Appellant, v. J. H. ScoтT, Respondent. LANDLORD AND TENANT- ACTION FOR RENT - RES JUDICATA. Where a tenant under a lease for one year abandoned the premises at the end of the first month, and, in an action by the landlord for the second month's rent, judgment was rendered in defendant's favor on the ground that the lease was invalid, such judgment is res judicata in a subsequent action brought by the landlord at the end of the year for the use and occupation of the premises for the balance of the term of eleven months during which the tenant was alleged to have been in constructive possession. SAME- TENANCY AT WILL - TERMINATION SONAL PROPERTY LIABILITY OF TENANT. NOTICE LOSS OF PER A tenant under a void lease being merely a tenant at will is privileged to terminate his tenancy at any time without notice, and in such case is not liable for the loss of personal property included in the lease whose loss occurred after his abandonment of the premises, and during the period for which the landlord was attempting to hold him to the terms of the lease. May, 1901.] Opinion of the Court.-ANDERS, J. JUDGMENT OF SUPERIOR COURT-CONCLUSIVENESS ON APPELLATE TRIBUNAL. The fact that a judgment in a former action was for an amount which would render it unappealable to the supreme court, would none the less constitute it a bar in the latter court in a subsequent action between the same parties involving the same subject matter. Appeal from Superior Court, Thurston County.—Hon. OLIVER V. LINN, Judge. Affirmed. T. N. Allen and Phil. Skillman, for appellant. The opinion of the court was delivered by ANDERS, J.-In the month of May, 1897, Mary J. Dolan was the owner of, and together with her husband, Patrick Dolan, executed to Scott & Quinn a lease of, the saloon, furniture, and fixtures situated on the corner of Fourth and Washington streets, in the city of Olympia. The lease was for the term of one year commencing on the 10th day of July, 1897, with a monthly rental of $43, payable in advance. The lessees paid the first month's rent, took possession of the premises, and retained possession thereof until the 9th day of August following, when they abandoned the property and tendered possession thereof, with the keys, to plaintiff, which tender was refused. Subsequently Quinn died and this action is prosecuted against J. H. Scott, surviving partner of the firm of Scott & Quinn, and as administrator of the estate of Quinn, deceased. On the 10th of August, 1897, the lessors made a demand for the amount of the rent alleged to be due for the month ending September 10th, which was refused. On the 11th day of August, 1897, plaintiff commenced an action in the justice's court for the installment of rent alleged to be due in pursuance of the terms of the |