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HARVARD 


/ 


i 


REPORTS  OF  CASES 


<^0 


DECIDED  IN   THB 


SUPREME  COURT 


STATE    OF    OREGON 


ROBERT    a.   MORROW 

Rbportbr 


VOLUME    47 


SALKM,  OBBOON : 

J.  R.  WHITNEY,  STATE  PRINTER 
1908 


copyright,  190A,  by  Robert  Graves  Morrow. 


OFFICERS 


SUPREME   COURT 


DURING  THE  TIME  OF  THESE  DECISIONS. 

FRANK  A;  MOORE*       -        -  -       Chief  Justice 

CHARLES  E.  WOLVERTONf     -  -     Chief  Justice 

ROBERT  S.  BEAN  J  -  -'  -  -  Chief  Justice 
ROBERT  S.  BEANJ     -        -        -  Associate  Justice 

CHARLES  E.  WOLVERTONf    -  Associate  Justice 

FRANK  A.  MOORE*        -       -  Associate  Justice 

THOMAS  Q.  HAILEY§       -       -  Associate  Justice 

ANDREW  M.  CRAWFORD  -  Attorn ey-General 
ROBERT   G.  MORROW  -        -       -       Reporter 

JOHN  J.  MURPHY  -  -  -  Clerk  at  Salem 
ARTHUR  S.  BENSON  -  -  Deputy  at  Salem 
LEE   MOOREHOUSE      -  Deputy  at  Pendleton 


^Jodge  Moore  was  Chief  Justice  until  January  0, 19a3,  when  he  became  Asso- 
ciate Justice,  having  been  re-elected. 

t  Judge  Wolverton  became  Chief  Justice  on  January  0, 1905,  and  aerved  until 
December  4, 1905,  when  he  resigned. 

X  Judge  Bean  became  Chief  Justice  December  6, 1905. 

fJudgeHailey  was  appointed  to  succeed  Judge  Wolverton  and  qualified  De- 
cember 6, 1906. 


TABLE  OF  CASES  REPORTED. 

In  tbis  table  cases  wherein  municipalities  are  parties  are  placed  under  the 
name  of  the  city  or  county,  and  not  under  the  letter  '*  C." 

PAGE 

.'Etna  Indemnity  Co.,  Ausplund  v._ 10 

Alaska  Packing  Co.,  Reid  v _  215 

Annans  v.  Sewell 372 

Artesian  Land  Co.,  Quackenbush  v 303 

Ausplund  V.  .^tna  Indemnity  Co 10 

Baker  County  V.  Huntington 328 

Banning  v,  Roy__ 119 

Barnes,  State  v. 592 

Barringer  v.  Loder 223 

Basim  v.  Wade._ _ 524 

Board  of  Ekjualization,  Wallace  v._ 584 

Bollam,  State  v 639 

Boothe  V.  Farmers'  National  Bank _ 299 

Bowden  MiningCo.,  Mee  v 143 

Browning,  State  v 470 

Bull  V.  Payne 580 

Buren's  Will 307 

Carroll  V.  Grande  Ronde  Electric  Co 424 

Carter  v.  Wakeman .  ^-_  212 

Casto  V.  Murray 57 

Christenson  v.  Simmons _ ^ 184 

Cohn,  Taylor  V 538 

Cohn  V.  Wemme ^-_ 146 

Columbia  Packers'  Association,  Grimberg  v __  257 

Conklin,  State  v 509 

Creason,  Peterson  v 69 

Darr  V.  Guaranty  Loan  Association 88 

Davis  V.  Silverton 171 

Dickey  v.  Jackson 531 

Duncan,  Seaweard  v. __  640 

Duniway  v.  Portland 103 

Eldrledge,  Keene  v 179 

Equity  Mining  Co.,  Keystone  Milling  Co.  v 628 

Farmers' National  Bank,  Boothe  v.__ __  299 

First  National  Bank,  Moss  Mercan ti  le  Co.  v. 361 

Flegel  V.  Koss 366 

Fuller  V.  Hajgrer 242 


VI  Table  of  Cases  Reported. 

PAGE 

Geldard  v.  Marshall.. __..  271 

Grande  Konde  Electric  Co.,  Carroll  v 424 

Gray  v.  Jones _.    40 

Grimberg  V.  Columbia  Packers'  Association. ___  257 

Guaranty  Loan  Association,  Darr  v 88 

Hager,  Fuller  V 242 

Herren,  Marks  v. 603 

Higgins,  McKinnon  v 44 

Holmes  v.  Wolfard 93 

Horn  V.  United  SecuritlesCo 36 

Horn  V.  United  States  Mining  Co _ _ 124 

Huffman  V.  Huffman... _ 610 

Huffman  v.  Smyth 573 

Hughes,  Oregon  Iron  Co.  v 313 

Huntington,  Baker  County  v 328 

Hurst,  Wolferv 156 

Independence,  WongSing  v. 231 

Island  Milling  Co.,  Steel  v _ 293 

Jackson,  Dickey  v 531 

James,  Sears  v 50 

Jenkins,  Springer  v.._ _ 502 

Jennings,  Seed  v 464 

Johnson,  Pacific  University  v _ 448 

Johnston,  Livesley  v 193 

Jones,  Gray  v 40 

Karston  v.  Storey _ _  150 

Keene  v.  Eldriedge... 179 

Keystone  Milling  Co.  v.  Equity  Mining  Co .._ 628 

KoBS,  Flegel  v 366 

Lake  County  v.  Schroder ._ _  136 

Lane,  State  v.. 526 

Lassas  v.  McCarty __.  474 

Leavitt  v.  Shook 239 

Litchfield,  Livesley  v 248 

Livesley  v.  Johnston _ _  193 

Livesley  v.  Litchfield.. _..  248 

Loder,  Barringer  v 223 

Marks  v.  Herren 603 

Marshall,  Geldard  v ._ 271 

Martin,  State  v 282 

Marquam  v.  Roes 374 

McAulay,  Mount  v 444 

McCarty,  Lassas  v._. , 474 


Table  of  Cases  Reported.  vii 

PAGE 

McCluD^  V.  McPherson 73 

McKinnon  V.  Higgios 44 

McMahan,  Whelan  v. ._ ,    37 

McPherson,  McClung  v 73 

Mee  V.  Bowden  Mining  Co 143 

Miles  V.  Swanson l 213 

Mills  V.  Mills.. 246 

Miller,  State  v 562 

Morgan  v.  Shaw.. 333 

Moss  Mercantile  Co.  v.  First  National  Bank 361 

Mount  V.  McAulay 444 

Mundhenke  v.  Oregon  City  Manufacturing  Co __>  127 

Murray,  Casto  v 57 

Neis  V.  Whitaker . 517 

Oliver  v.  Wright... 322 

Oregon  City  Manufacturing  Co.,  Mundhenke  v 127 

Oregon  Iron  Co.  v.  Hughes 313 

Oregon  Power  Co.,  Sorenson  v. ^ 24 

Oregon  Railroad  Co.,  Price  v 350 

Oregon  Railroad  Co.  v.  Umatilla  County. 198 

Oregon  Transfer  Co.  v.  Portland 1 

Pacific  University  v.  Johnson 448 

Payne,  Bull  v 580 

Peterson  v.  Creason 69 

Phillips,  Stein  v __.. 545 

Plaindealer  Publishing  Co.,  Wooley  v. 619 

Pogue  v.  Simon 6 

Pope  V.  Pope 298 

Portland,  Duniway  v _.  103 

Portland,  Oregon  Transfer  Co.  v 1 

Price  V.  Oregon  Railroad  Co 350 

Puritan  Manufacturing  Co.  v.  Westermire 557 

Quackenbush  V.  Artesian  Land  Co 303 

Reid  V.  Alaska  Packing  Co. 215 

Ross,  Marquam  v. 374 

Roy,  Banning  v 119 

Ryan.  State  v 338 

Schroder,  Lake  County  V. 136^ 

Sears  v.  James 50 

Seaweard  v.  Duncan 640 

Seed  V.  Jennings _ 464 

Sewell,  Annans  v 372 

Shaw,  Morgan  v. 333 

Shook,  Leavittv. _ 239 


VIII  Table  of  Casks  Reported. 

PAUE 

Silverton,  Davis  v. _ _ 171 

SimmoQ8,  Christenson  v. _ 184 

Simon,  Pogfue  v. __ > 6 

Smith,  State  v _ ._ 485 

Smyth,  HulTman  v _ _ 573 

Sorenson  v.  Oregon  Power  Co 24 

Springer  v.  Jenkins _ o02 

State  V.  Barnes __  592 

State  V.  Bollam 639 

State  V.  Browning.- ___ 470 

State  V.  Conklin 509 

State  V.  Lane 526 

State  V.  Martin 282 

State  V.  Miller _ 562 

State  V.Ryan 338 

State  V.  Smith _ 485 

State  V.  Taylor _ 455 

State  V.  Thompson 492 

State  V.  Watson 543 

Steel  V.  Island  Milling  Co _ 293 

Stein  V.  Phillips 545 

Storey,  Kaston  v __  150 

Swanson,  Miles  v _ 213 

Taylor  v.  Cohn 538 

Taylor,  State  v 455 

Taylor  v.  Taylor 47 

Thompson,  State  v 492 

Umatilla  County,  Oregon  Railroad  Co. 198 

United  Securities  Co.,  Horn  v _ _.    35 

United  States  Mining  Co.,  Horn  v _. 124 

Wade,  Basim  v _  524 

Wakeman,  Carter  v. 212 

Wallace  v.  Board  of  Equalization.: _ 584 

Watson,  State  v 543 

Wemme,  Cohn  v 146 

Westermire,  Puritan  Manufacturing  Co.  v __ __.  557 

Whelan  v.  McMahan ___    37 

Whitaker,  Neis  v _ 517 

Will  of  Buren 307 

Wolfard,  Holmes  v. 93 

Wolferv.  Hurst _.  156 

Wong  Sing  v.  Independence. _. 231 

Wooley  V.  Plalndealer  Publishing  Co ._  619 

Wright,  Oliver  v 1 _.:.  322 


TABLE  OF  CASES  CITED. 

A 

PAOE 

Albert  v.  OresoQ  Railroad  CJo 46  Or.  549 435 

Adair  V.  Adair-— 22  Or.  115,182- 407 

Adams  v.  Homeyer 45  Mo.  546. i«»,  2B5,  288 

Adams  V.  Sayre _ 76  Ala.  600 385 

Adcock  V.  Oregon  R.  CJo 45  Or.  178 ;« 

Ah  Lepv.  GonK  Choy.- 18  Or.  429 195 

Aiken  V.  Aiken 12  Or.  208 100 

Albert  V.  Salem 39  Or.  466 192 

Allen  V.  Gillette 127  N.  8.  689 : 405 

Allison  ▼.  Blake 57  N.  J.  Law,  6 257 

Ames'  Will 40  Or.  496-504- 813 

Anderson  v.  Anderson 5  Land  Dec.  Dep.  Int.  6 579 

Anderson  V.  Baxter 4  Or.  105 152 

Anderson  v.  Butler 31  8.  0.  183. _ 405,  413 

Anderson  v.  Gouldbeng 51  Minn.  291 02 

Anderson  v.  Jersey  City  Elec.  Light  Co 64  N.  J.  Iaw,  665 485 

Arnold  v.  Sinclair 11  Mont.  556 386 

ABtorla  Ry.  Co.  v.  Kern 44  Or.  538 80,  370 

Ausplaud  V.  i¥:tna  Indemnity  Co. 47  Or.  10 46 

Austin  T.  Andrews 71  Cal.  98 373 

Ayer  v.  Termatt 8  Minn.  96 ___.  38<{ 

B 

Bachelor  V.  Korb 58  Neb.  122 _ __.  2H 

Bailey  v.  Smith 84  Am.  Dec.  385— 48^1 

Baker  ▼.  Adams  _ 5  Cush.  99 _ 86 

Baker  v.  Williams  Banking  Co 42  Or.  213 382 

Bamberger  V.  Ueiser. 24  Or.  204 229 

Bank  of  Columbia  v.  Portland 41  Or.  6 4 

Barlow  v.  Taylor  Min.  Co 29  Or.  132 145 

Barnes  ▼.  Oavanaugb 53  Iowa,  27 153 

Barrett  v.  liarrett 5  Or.  411 468 

Bartel  v.  Mathlas 19  Or.  482„._ 370 

Bartlett  v.  O^Donoghue  -.. 72  Mo.  (J68 _.    87 

Basche  v.  Prlngle 21  Or.  24 158,381 

liatchfelder  V.  Zenney . 27  Vt.  578 - _  509 

Beacannon  v.  Llebe— 11  Or.  443 150 

Beale  V.  Home  Ins.  Co.— — :«  N.  Y.  522 297 

Bebersteln  v.  Territory 8  0kl.467 l«7 

Bedell  v.  Herring 77  Cal.  672 483,  484 

Belflls  V.  Flint _ 15  Or.  irrf ._.  1<» 

Belles  V.  Burr 76  Mich.  1 255 

Bellinger  v.  Ford 21  Barb.  3IU_ (HJ 

Belo  V.  Fuller  .._ _ _ _.82Tex.  450 624 

Benfleld  v.  Benfleld 44  Or.  94 616 

Bennett  V.  Mlnott 28  Or.  :«9 _ 468 

Bickford  v.  First  Nat.  Bank 42  111.  238... 5Wi 

Birney  v.  Halm -2  Lltt.  262 _.._    87 

Blackman  v.  Banmann 22  Wis.  «II 244 

Bloch  V.  Bammons -:J7  Or.  600 -_    50 

Bloomfleld  v.  Humason 11  Or.  229 __ -7,  lOO 

Bohn  Mfg.  Co.  v.  Erickson 55  Fed.  943 132 

Bowen  v.  Emmcrson 3  Or.  452 182 

Bowen  v.  Striker 87  Ind.  317  — 446 

Boyce  v.  Sinclair -_.- 3  Bush,  261 ___.  244 

Boyd  V.  Portland  Elect.  Co ___.40Or.  126 _.  4M 

Boyerv.  East 161  N.  Y.  580 413 

Braokett  v.  Holtt— 20  N.  H.  2.'.7 m 

Bradfeldt  v.  Cooice 27  Or.  194.- 48.') 

Brady  v.  Norcross 172  Mass.  :m 275 

Brandt  V.  Brandt 40  Or.  477 ___  «I7 


Table  of  Cases  Cited. 


PAGE 

Bronsou  V. Schulten 104  U.S.  410 JM 

Brown  v.  Baker _ 89  Or.  66- 337 

Brownfleld  v.  Houaer 30  Or.  534 _ —    66 

Bruce  v.  NIcolal- _ 30  Or.  364^367 370 

Hryan  v.  Baldwin _ _ 52  N.  Y,  232 605 

Buchanan  v.  Beck __15  0r.563- -ISl,  183 

Buchtel  V.  Kvans -21  Or.  309 _ 506 

Buckner  V.  Gordon 81  Ky.  6(i5 251 

Burdlck  V.  People 149111.600 501 

Burness  v.  Multnomah  County — 37  Or.  460 54 

Burnett  v.  Douglas  County. 4  Or.  388 209 

Burrlchter  V.  Cllne 3  Wash.  St.  135 123 

Burton  v.  Randall- _ 4  Kan.  App.503 605 

Burton  v.  Scherpf 1  Allen,  m^ 540 

Burton  v.  Wilkinson 18  Vt.  186 _  366 

Busch  V.  Wilcox 82Mlch.  83H 222 

Butler  V.  Smith  ._ __ 20  Or.  126 160 

Bybee  V.Summers... _4  0r.854 380 

Byrne  V.  MInneapoliH  &  St.  L.  Ry.  Co 38Mlnn.212_ 360 

C 

Calame  V.  Calame .25  N.  J.  Eq.  548 617 

Campbell  v.  Manufacturers'  Nat.  Bank 67  N.  J.  Law,  301 567 

Campbell  v.  People 159  III.  9 597 

Cannon  v.  Canfleld- - 11  Neb.  506 _ 484 

Carlyle  v.  Sloan... 44  Or.  357 181 

Carothers  v.  Wheeler 1  Or.  194 126 

Carrlngton  v.  Mueller — 65  N.  J.  Law,  244 134 

Carson  v.  Marshall 37  N.  J.  Eq  213 404 

Carter  v.  Davidson 78  Iowa,  45 385 

Cartwrlghtv.  Savage 5  Or.  397 15S 

Cason  V.  City  of  Lebanon 153  Ind.  567 112 

CAStle  V.  Houston ._ 19  Kan. 417 514 

Central  Nat.  Bank  v.  Wilder 32  Neb.  464 .29C,  297 

Certain  Logs  of  Mahogany.. .2  Sumn.689. 288 

ChambertaTn  v.  Hlbbard ..-260r.428 .86,  477 

Chance  v.  Portland 26  Or.  286 112 

Chicago  B.  <&  Q,.  R.  Co.  v.  Emraert 58  Neb.  237 380 

Chllders  v.San  Jose  Mercury  Co. 106Cal.281 __  624 

Chlpman  v.  Kmerle 5  Cal.  289 _ 508 

Chorpennlng'8  Appeal 32  Pa.  316 406 

Cirlack  v.  Alerchants'  Wcxjlen  Co 146  Mass.  182. 184 

CMtlzens  Bank  v.  Ryman 12  Neb.  541 484 

City  of  Emporia  v.  Norton 13  Kan.  rm 111 

City  of  McGreRor  v.  Boyle.. 34  Iowa,  269 178 

City  of  Petersburg  v.  Petersburg  Benev.  M. 

Assoc -...78  Va.  431 590 

City  of  PorUand  v.  Meyer 32  Or.  368-:T71 500 

City  of  St.  Paul  v.  Mullen 27  Minn.  78 Ill 

Clark  V.  Anthony 31  Ark.  546 4«8 

Clark  v.  Campbell _ 23  Utah,  669... 296 

Clark  v.  Wick .25  Or  446.. 508 

ClarkRon  v.  Edes _.. 4  Com  p.  470 266 

Cleveland,  C,  C.  &  St.  Louis  R.  Co.  v.  People.aa5  111.  682. 206 

Cltne  V.  Greenwood .—10  Or.  230 500 

Ciine  v.  Seattle 18  Wash.  444 Ill 

Coffin  V.  Election  Com'rs 97  Mich.  188,  194 __._  254 

Cole  V.  Neustadter- _ 22  Or.  191.. 516 

Colllsterv.  Hayman 71  App.  DIv.  316... 640 

Colllster  V.  Koohersperger 168  111.384 112 

Commonwealth  v.  Blandlng _„.3  Pick.  304 _ 512 

(Commonwealth  v.  Davidson... 1  Cush.  33 570 

Commonwealth  v.  Ferrlgan 44  Pa.  St.  386 286 

Commonwealth  v.  Keary 19S  Pa.  St.. ■500... _ 601 

Commonwealth  v.  Peaslee. 177  Mass.  267.. 462 

Commonwealth  v.  Webster o  Cush.  295 _ 598,  600 

(Sonant's  Estate.. 43  Or.  530 619 

Confleld  v.  Watertown  Ins.  Co  HTy  Wis.  419 149,  150 

Conlon  V.  Oregon  Short  Line  R.  Co 23  Or.  499.. 607 

Cook  V.  Cook 24  S.  C.  204 66 

Coolldgev.  Heneky 11  Or.  327.. _ _. 468 

Coombs  V.  New  Bedford  Cordage  Co 120  Mass.  272 _ 133 

Cooney  v.  Van  Rensseler _ I  Code  Rep.  (N.  Y.)  88_ 122 


Table  of  Cases  Cited.  xi 

PAGE 

Ctooper  Mto.  Co.  v.  Delabunt 86  Or.  402 306 

Coos  Bay  Nav.  Co.  v.  Endicott .84  Or.  578 34 

Corwln  V.  Freeland tf  N.  Y.  660 122 

Cotulla  V.  Kerr 74  Tex.  89 517 

Cox  V.  Alexander 80  Or.  488 485 

Craft  V.  Kochersperger 173  III.  617 112 

Craig  V.  Van  Bebber 100  Mo.  684 :_,.  467 

Craln  v.  Cavana. 62  Barb.  109 619 

Crane  v.  Morris 31  U.  8. 698 .__  290 

Crawford  v.  Beard 12  Or.  447 468,  500 

Crawford  V.  Linn  County 11  Or.  482 140 

Crawford  v.  Rambo 44  Ohio  St.  282 358 

Cudaby  Packing  Co.  v.  Maroan 106  Fed.  645 - 183 

Cullen  v.O'Harra 4  Mlcb.  182 62,  64 

Cummins  v.  Holmes 109  111.  15 62 

Currle  v.  Bowman 25  Or.  364 102,  220 

Curtis  V.  Millard . 14  Iowa,  128 I5a,  155 

Cushing  V.  Seymour 30  Minn.  901 505 

D 

Danlelson  v.  Roberts 44  Or.  lOS 62 

Danvers  v.  Durkln 14  Or.  87 160 

Darst  ▼.  Doom 88  III.  App.  879 87 

Davis  V.  Davis 20  Or.  78 _ 18,  468 

Davis  V.  Patrick 141  V.  8.  479 72 

Davis  V.  Robinson .._.10  Cal.  411 128 

Davis  v.Sladden 17  Or.  259 516 

Davlsson  v.  Ford 23  W.  Va.  617 „  536 

Davoue  V.  Fanning 2  Johns.  Cb.  252 404 

Dawson  v.  Sims 14  Or.561__ 468 

De  Puy  V.  City  of  Wabash 188  Ind.  886 _.  112 

Decatur  Land  Co.  v.  Cook 126  Ala.  708 __  386 

Dechenbacb  v.  RIma 46  Or.  500_.„-- 160 

Dee  v.Hyland 8  Utah,  308 241 

Deerlng  v.Qulvey 26  Or.  556— 196,  619 

Derkeny  v.  Belflls 4  Or.  258 86 

Diamond  v.  Turner 11  Wash.  189 9 

Dickson  V.  Back 32  Or.  217 327 

Dlmmey  v.  Railroad  Co '17  W.  Va.32 874 

Dlmmlck  V.  Rosenfeld 84  Or.  101-105 871 

DIx  V.  Atkins 180  Mass.  171 86 

Dodd  V.  Home  Mut.  Ins.  Co 22  Or.  3 178 

Dodge  V.  Marden 7  Or  457 580 

Doe  v.Doe... 52  Hun,  406 618 

Doss  V. Craig- 1  Colo.  177 167,  170 

DOHSV.  People 158  111.  660- _ 848 

Douglass  V.  Wbltaker _32  Kan.  381 168 

DowUng  V.Allen  County- _ 74  Mo.  18 _ l:« 

Downs  V.  Rlckards  — 4  Del.  Cb.416 404 

Dray  v.  Dray _ 21  Or.  69 152 

Drinkwaterv.  Freights  Cargo  of  Brig  Spartan- 1  Ware,  149__ _ 267 

Dublver  V.  City  Ry.Co.. 44  Or.  227 132 

Duffv.  Willamette  Steel  Works 46  Or.  479 506 

E 

Earl  V.  Halsey 14  N.J.  Eq.832 _ 405 

Earle  V.Simmons 94  Ind.57S 44« 

Eddy  v.Klncald- _ 28  Or.  587 _ „„  oOO 

Elchart  V.  Barges l2B.Mon.462 _ _  168 

Elder  V,  Rourke „27  Or.  868 - -  477 

Elfelt  V.  Hlnch 5  Or.  255 102,  468 

Emery  V.  Hersey —4  Greenleaf.  404— 284 

Emmons  V.  Westfleld  Bank 97  Mass.  230 290 

Epplngv.  Washington  Invest.  Assoc 44  Or.  116 91 

Epstein  V.  State  Ins.  Co.- 21  Or.  179._ &19 

Espanv.  Hlncbcllffe 131  111.468 1(« 

Evans  V.Christian... _ 4  Or.  875 619 


Fadnerv.Hlbler.-_ 26  111.  App.  689 87 

Farmers <&  M.  Bank  v.  Butchers <!:  D.  Bank. 28N.  Y.425 566 


xir  Table  of  Cases  Cited. 

PAOB 

Farmers  &  M.  Nat.  Bank  v.  Mosher (B  Neb,  130 2B6 

FarnHWorth  v.  Bell _ —5  Bneed.  632 4<M 

Farrar  v.  Clark «5  Ind.  U9 446 

Farrell  v.  Oregon  Gold  Co 81  Or.  4fi» &» 

Felton  V.  La  Breton »2Cal.  4o7-_ 413 

Felton  V.  Millard 81  Cal.  540. »> 

Ferguson  v.  FUh. _ 28  Conn.  TjOl iW4 

Ferguson  v.  Ray 44  Or.  557.-_ _ _ 322 

Ferson  v.  Drew 19  Wis,  241 ISO 

Flanders  v.  Aumack 82  Or.  19. 163 

Flynn  v.  Balsley 36  Or.  268 408 

Flynn  v.  Flynn las  Mass.  3(i& W 

Fllberv.  Dautermann 28  Wis.  Slf' 626 

Flnkelsteln  v.  Herson _ 55  N.  J.  Law,  217 86 

Fire  Association  V.  A I  leslna 46  Or.  154 160 

Flore  V.  Ladd a»Or.  528._ __ 477 

Flsberv.  Lord- Fed.  Cas.  No.  4821 864 

First  Nat.  Bank  v.  Mack .35  Or.  122 485 

First  I^at  Bank  of  Marquette  v.  Stewart 26  Mich.  84 2«7 

Flsk  v.Harber 6Watt«&  S.  18 405 

Fitch  V.  Howltt - 32  Or.  3JHJ— 806 

Fitzgerald  v.  Connecticut  River  Paper  Co. 155  Mass.  155 443 

Forsythe  v.  Pogue... 26  Or.  481 160 

Franklin  v.  Commonwealth 92  Ky.  612 286 

France  v.  Bell _ 52  Neb.  57_ 386 

Frascr  v.  State _ 55  Ga.  325 286 

Frederlcb  v.  Seattle 13  Wash.  428 Ill 

Frink  v.  Thomas  . 20  Or.  266- 578 

Fry  V.  Rush 63  Kan.  429 886 

Fry  V.  State 63  Ind.  552 501 

Fuller  V.  Scrlbner - 16  Hun,  130 —  166 

Fulton  V.  Earhart 4  Or.  61 76 

G 

Gabe  v.  McGlnnls _ _ 68  Ind.  538 617,  GX: 

Gager  v.  Henry - 5Sawy.237 243 

Gamache  v.  South  School  Dlst 133  Cal.  145 304 

Gardner  v.  McWllllams 42  Or.  14 _ —    63 

(iarnsey  v.  County  Court 83  Or.  201,  207 206 

Garvey  v.  Carey _ 85  How.  Prac.  282 149 

George  V.  Nowlan 38  Or.  637 446 

Gerard  v.  Jones 78  Ind.  378 66 

German  Am.  In.s.  Co.  v.  Davis _ 131  Mass.  316 — _ 557 

German  Sa^.  Bank  v.  Des  Moines  Nat.  Bank-122  Iowa,  737 566 

Glraudl  v.  Electric  Imp.  Co _„107  Cal.  120 _ 4.^ 

Glenn  v.  Savage _ 14  Or.  567 281 

Goltra  V.  Penland  _ _ 45  Or.  254 583 

Good  V.  Smith. 44  Or.  578 _ 76 

Goodard  v.  Wlnchell ...m  Iowa,  71- _ 317 

Goodnow  V.  Smith - ..97  Mass.  69 _ _.  469 

Gore  V.  Brew _ 12  Land  Dec;.  Dep.  Int.  289 578 

(Jorman  v.  McGowan „ 44  Or.  597 76 

Grady  V.  Dundon _..  30  Or.  333 — 245 

Great  Northern  Ry.  Co.  v.  McLaughlin 70  Fed.  669 277 

Green  v.  City  of  Tacoma— 51  Fed.  622— _„ „..  178 

Green  v.  Cresswell 10  Adolpb  &  E.  LW 71 

Gregory  v.  Atkins. _42  Vt.  .127 — 517,  627 

Griffin  V.  Barton 22  N.  Y.  Misc.  Rep.  22< 81 

Griffln  V.Moore 48  Md.  246.- 516 

Griffin  V.  StAte 26  Ga.  49:^  _ _ 462 

Grosvenor  v.  Henry _ 27  Iowa,  21 W — —  168 

Grubb  V.  State  . — __. 117  Ind.  277 490 

Gudgell  V.  Mead 8  Mo.  54 379 

• 
H 

Hudley  v.  Bernero 97  Mo.  App.314 81 

Hagar  V.  Clark — 78  N.  Y.45— _ 271 

Hagerman  v.  Buchanan 45  N.  J.K(].292 468 

Haines  V.  Campbell    74  Md.  I'jH 516 

Hake  v.  Coach lOi  Mich.  425 386 

Hallock  V.  Portland 8  Or.  29- _ 80 

Halstead  v.  Seaman  — -82  N.  Y.  27— 149 


Tablk  of  Cases  Cited.  xiii 

PAOK 

Hamilton  v.  Dooly. 16  Ulah,a» 406 

Hamilton  v.  Van  Hook. 28  Tex.  802 89 

Hammer  v.  Downing. 89  Or.  504 808 

Hand  Mfg.  Co.  v.  Marks  ... :»  Or.  623 42 

Hanna  V.  Young M  Md.  179 — 251 

Hardy  v.  WallU ...108111.  App.  141 06,  07 

Harrington  v.  Watson 11  Or.  143 IflO,  ltl7 

Harris  v.  Burr 32  0r.848-. .251,255,  590 

Harrison  v.  Hartford  Ins.  Co 80  Fed.  802 549 

Hart  V.  Llndley.- _.50  Mich.  20 80 

Haskins  V.  Jordan. 128  Cal.  157 89 

Hawkins  v.  Donnerberg 40  Or.  97 18 

Hawley  V.  Barker.. 5  Colo.  118 84 

Hawley  v.  Dawson  ._ _ 16  Or.  844-_ 84 

Hayes  V.  Horton 46  Or.  597 828 

Haynes  v.  Raleigh  Gus  Co 114  N.  C.  208 484 

Heathcriy  V.  Hadley _..2Or.209 500 

Helney  v.  Helney 48  Or.  577 100 

Henderson  v.  Henderson. 87  Or.  141 616 

Hendrlckson  v.  Beeson 21  Neb.  61 Ib7 

Hendry  v.  Squler _._. 128  Ind.  19 86 

Henrichsen  v.  Smith 29  Or.  475 196 

Heyn  v.  O'Hagen. 60  Mich.  150 -  220 

Hlcklin  V.  McClear ..18  Or.  126 _ 77.214 

Hicks  V.  Commonwealth _ 86  Va.  228 459 

Hler  V.  Miller 68  Kan.  258 567 

Higglns  V.  McConnell .180  N.  Y.  487. 7 

Hindman  v.  Rlzor 21  Or.  112 580 

Hlslopv.  Moldenhauer 21  Or.  208.. 160,  167 

HIslop  V.  Moldenhauer 21  Or.  lOtf 526 

Hobkirk  v.  Porlland  Baseball  Club 44  Or.  605 44 

Hopwood  V.  Patterson.. 2  Or.  49 86,  477 

Homey  v.  Nixon 213  Pa,  20 540 

Hotel  Co.  V.  Furniture  Co 73  Mo.  App.  186 222 

Houston  V.  Tlmmerman 17  Or.  400,  490 154,  615 

Howell  V.  Folsom _ 38  Or.  184 _.. 82tJ 

Hughes  V.  Lansing _ 34  Or.  118 „  120 

Hughes  V.  Linn  County _ 87  Or.  HI 446 

Hunsingerv.  Hofer__.. 110  Ind.  890. 468 

Hunter  v.  State _ ....46  Tex.  Cr.  Itep.  498 560 

Hurford  v.  Harned  ._ 6  Or.  ;W2 _.  407 

Hutchlns'  Adm'r  v.  Adams 3  Greenl.  174.- 66 

Hutchinson  v.  Brand 9  N.  Y.  20K 122 


In  re  John's  Win 80  Or.  ^94 (H 

In  re  O'Neill „ -.41  Wash.  171  _ _ 501 

Irwin  V.  Washington  Loan  Assoc- 42  Or.  Iftj _ 91 


Jackson  v.  State 29  Tex.  App.  45«-.-_ 508 

Jameson  v.  Coldwell 23  Or.  144 506 

Jannln  v.  Blate 42  Tex.  Cr.  R.  681 601 

Jennings  v.  Klernan :%Or.  JM9.- 164 

Jewett  V.  Miller i ION.  Y.402. 404 

Jewett  V.  Smith 12  Mass.  309 -_    6f. 

Johnson  v,  Archibald 78  Tex.  96- 191, 192 

Johnson  v.  People 113  111.99 __ 472 

Johnston  v.  Oregon  Short  Line  Ry.  Co 28  Or.  94 ._ 487,  506 

Jones  V.  Seaboard  Air  Line  R.  Co 67  S.  C.  181 356,  860 

Jones  V.  Wilson 54  Ala.  50 386 

K 

Kalyton  v.  Kalyton 45  Or.  116-130- 677 

Kearney  v.  Snodgras.<< _12()r.  811 490 

Kelly  V.  Herrall 20  Fed.  3fM 2U9 

Kelsey  v.  Murphey _ 30  Pa.  340— 34 

Kennedy  v.  Cunningham ..2  Mete.  (Ky.)  510. -373,374 

Kimball  V.  Redfleld ,._ .33  Or.  292 04 

King  V.  Brigham _ 19  Or.  560.... 192 

King  V.  Hlgglns 2  East,  5 460 


XIV         Tablk  of  Oases  Cited. 

.    PAGE 

King  V.  Nicholson 2  Leach,  610 M7 

King  Real  Entate  Assoc,  v.  Portland 28  Or.  199 _ *^0 

Klelnsorge  v.  Rohae. 25  Or.  61- 549 

Knappv.  Heller 82  Wis.  407 209 

Knotty.  Rhaw -SOr.  4K2__ 327 

Knowlton  v.  Mlckles 29  Barb.  4U5 _ 149 

KonlgsberK  v.  Harvey 12  0r.  2M SOU 

Kruus  V.  Montgomery _. 114  Ind.  108 - 44« 

Kutzmeyer  v.  Ennis. __ __27  N.  J.  Law.  871 72 

Kyle  V.  Rlppy _ 19  Or.  ISO.. _ 70 


La  Qrande  Nat.  Bank  v.  Blum. 27  Or.  215. 607 

l^dd  V.Johnson 82  Or.  195 408 

Ladd  V.  Mason— 10  Or.  308 619 

Ladd  V.  Mills—. _ 44  Or.  224 .._ 99 

l^ngton  V.  Hagerty- 35  Wis.  150 626 

Lawrence  v.  Wright : 28  Pick.  128 — 65 

i^Clare  v.  Thibanlt.. : 41  Or.  601 150 

Leary  v.  United  States.. _ 81  U.  8.  607,  611 264,  265 

Lemraons  v.  Ruber _ 45  Or.  282 882 

Lenz  V.  Blake 44  Or.  569 562 

I^wls  V.  Blrdsey _ _.19  0r.  164 62 

Lewis  V.  Lewis 5  Or.  169 549 

Lewis  V.  Reeves 26  Or.  445 160 

Lewis  V.  Welch 47  Minn.  193. _ 404 

Lister  V.  Allen  _ ...31  Md.  548 - 222 

Livesley  v.  Johnston _.45  0r.  30. _ 194 

Living.ston  v.  Platner 1  Cow.  175 508 

Long  V.  Coffh»y 98  Pac.  526 42 

Ijong  v.  Williams _.74  Ind.  115 _ 467 

Longhurst  v.  Starr  Ins.  Co 19  Iowa,  865 21 

Loft  v.  Kaiser _ 61  Tex.  665 4<J7 

Love  V.  Bliss 24  III.  168 ____ K7 

Love  V.  Morrill 19  Or.  545 178 

Lovejoy  v.  Chapman 28  Or.  571 370 

Loveloy  v.  Willamette  I^ocks  Co 24  Or.  569 37 

Lovelace  v.  State _ 12  Lea,  721 _ 489 

Lukehart  V.  Byerly .__58  Pa.  418 _ _ 516 

Lynch  v.  Bates. 138  Ind.  206 _ 608 

M 

Malcolm  v.  Fuller 152  Mass.  160 _ _    33 

Male  V.  Schant _ ....41  Or.  425 303 

Marcardier  v.  Chesapeake  Iiw.  Co 12  U.  S.88 ..264.  2tW 

Marks  v.  Stephens. - _ 88  Or.  65 97 

Marx  V.  LaRoque 27  Or.  45 _ 407 

Massey  v.  Seller 45  0r.  2fn' 4.S5 

Matoon  v.  Eder _ 6Cal.  57 __ 123 

Mattlngly  v.  District  of  Columbia. 97  U.S.  687 _ Ill 

Mayes  V.  Stephens 88  Or.  5  2 98 

Mayor  V.  Omberg 28  Ga.  46 178 

McAl  Ister  v.  Detroit  Free  Press  Co 76  Mich.  a38 624 

McAnlsh  V.  Grant 44  Or.  57. _ 160 

McCall  V.  Porter  -.__ _ 42  Or.  49... ._  181 

McCrea  V.  Marsh _ 12  Gray.  211. _ 540 

McCulloeh  V.  Bstes _ 20  Or.  349 _ 245 

McCuIl.iUgh  V.  Abescom  Land  Improv.  Co-.-IO  Atl.  606 mi 

McDade  v.  People. — 29  Mich.  50 4rj0 

McDermottv.  People 5  Parker,  Cr.  R.  102 461 

McDevlttv.  Lambert ...80  Ala.  586 168 

McDonald  V.  I^wls _ _ ..18  Wash.  300 __ 149 

McE  eney  V.  Town  of  Sullivan 125  Ind.  407 112 

McGourkey  v.  Toledo  &  Ohio  Ry.  Co _ 146  U.  S.  636 __..: 379 

Mcllvaine  v.  Smith 97  Am.  Dec.  311 9  " 

McKay  v.  Freeman — 6  Or.  449 80 

McMahon  v.  Savannah 66  Ga.  217 251 

McMurray  v.  Day 70  Iowa,  671. 888 

McC^uaid  v.  Portland  and  Van.  R.  Co 19  Or.  535 34 

Meads  v.  Merchants'  Bank 25  N.  Y.  148. __ 566 

Meier  V.  H#»88 _.23  Or.  509-601— _ ...  871 

Mendel  v.  Boyd. 19  N.  W.860 567 


Tablk  of  Cases  Cited.  xv 

FAUK 

Merchanta'  Bank  v.  State  Bank 77  U.  8.  604 566 

MicboDd  v.Glrod-— 4o  U.  S.  508 405 

Ming  Yuev.  Coos  Bay  Nav.  Co 24  Or.  392 _ 150 

Minter  v.  Dtirbam 13  Or.  470 _ 20» 

Mitchell  V.  Holman  _ 30  Or.  'JHO M9 

Mizner  V.  Munroe.. 10  Gray,  290. __ 85 

Moores  V.  Clackamas  County 40  Or.  5.S6 _— 446 

Morrell  v.  MIHer _ 2s  Or.  354 196 

Morrl8  V.  Masons 68  Tex.  698 _ 591 

Monl8  v.Htate _. _-30Tex.  App.  95. 602 

Morrison  v.  Commonwealth 24  Ky.  Law  Kep  2493 286 

Morrison  v.  McAtee Zi  Or.530 - 524,  607 

Morse  v.  Union  Stock  Yards  Co _.-21  Or.  289 562 

Morton  v.  Denham 39  Or.  227 __ 468 

Munn  V.  Burgess _ 70111.  6M,61l__ _...  413 

Murphy  v.  Sears- * 11  Or.  127 446 

Murray  v.  Murray _ 6  Or.  26 _.  477 

Mussel  Slough  Case -5  Fed.  (m  344 

N 

Nashville  C.A  St.  L.  Ry.Co.  v.  Alabama V^  U.  S.  96 500 

Nashville  Trust  Co.  v.  Bank .  91  Tenn.  :i51_._ _ 39 

Nason  v.  Best 17  Kan.  408 168 

NatloDHl  Bank  v.  (Jarper _ 28  Tex.  Civ.  App.  334 _.  566 

Nelson  v.  Oregon  R.  A  Nav.  Co _ I3  Or.  141 84 

Neffv.Pennoyer H8awy.495_- 508 

Nelmitz  V.Conrad 22 Or.  164 123 

New  Memphis  Gaslight  Co.  Cases 105  Tenn.  268. ._ __  414 

Now  York  C.  A  St.  L.  K.  Co.  v.  Speelman 12  Ind.  App.  372_ JiSO,  360 

New  York  C.  A  St.  L.  R.  Co.  v.  Hamlet  Hay  Co._149  Ind.  m 359,  880 

Noblitt  V.  Beebe — _ 23  Or.  4 „ :^2« 

Nosier  v.  Ct*w  Bay  Nav.  Co 40  Or.  sa^ _" _-•_    50 

Nottage  V.  Portland ;i5  0r.539. _  245 

O 

Oberbeek  v.  Mayer.„ __ 59  Mo.  App.  289— -    17 

O'Connell  v.  East  Tenn.  Ry.Co 87  Ga.  246  _ 359 

O'Hara  v.  Parker _ 27  Or.  156 126 

O'Neill,  In  re 41  Wash.  174 501 

Oregon  A  Cal.  R.  Co.  v.  Jackson  County. 38  Or.  589 210 

O'Reily  V.  Bevington. 155  Mass.  72._. 413 


Pacific  Exp.  Co.  v.  Malin 132  U.  S.  .581 374 

Page  V.  Allen _ 58  Pa.  :«8 rm 

Page  V.  Pinley „_.8  Or.  45 ._- _ 490 

Page  V.  Rogers- _ _ 31  Cal.  293,  301 7,  9 

Patrick  V. People _-_I32  111.529 459 

Patterson  v.  Patter8<*n 40  Or.  560„-. 181 

Payne  v.Elliott 54  Cal. ;«» 128 

Pearson  v.  Dryden __ '-«  Or.  iJSO 282 

Peck  V.Wallace 19  Ala.  2i9. .mi 

People  V.  Baker _ M  N.  Y.340 _.  572 

People  V.  Bough .48  Hun,  621    569 

People  V.  Bush _ _ 4  Hill,  133 4«0 

People  v.Croswell 3  John.s.  Cas.  3:J7 513 

People  V.  Common  Council 5  Lans.  11 117 

People  V.  Florvllle _ 207  lll.8l.._ 206 

People  V.  Gardner _ _ 144  N.  Y.  1 19 462 

People  V.Goodwin _ 132  Cal.  368 489 

People  v.Hurlburt _ 24  Mich.  44 '253 

People  v.Pool _„ 27  Cal.  572__ _..  286 

People  v.Shaughnessy 110  CJal.  598 347 

People  V.Shaw-— _ _ .")7  Mich.  403 349 

People  v.  Stetson 4  Barb  151-._ 569 

People  V.  Sullivan 173  N.  Y.  122 462 

People  v.Tomlinson _ 102  Cal.  19 347 

People  V.  van  Bokkelen 73N.C.  198 '257 

People  V.  Walters .__.98  Cal.  138 _ 28<J 

People  V.  Youngs 122  Mich.  292.. 469 

People  ex  rel.  v.  English 139  III.  622. 254 


XVI  Table  of  Casks  CrTKD. 

PAOfi 

People  ex  rel.  v.  Warden  of  PriBOn— 167  N.  Y.  litt— 601 

People's  Bank  V.  HamiltoD  Mfiff.  Co 10  Paige,  481 164 

Perrin  v.Lepper 72  Mich.  464 886 

Perry  V.  Worceater- 66  Am.  Dec.  481. 178 

Peyger  V.  Wilcox 64  How.  Prac.  525 ;i86 

Philbrtck  V.  O'Connor 15  Or.  15 468 

Plckard  v.  Perley... 45  N.  H.  188- _ 85 

Pinning  v.Hklpper.. _ 71  Md.  847 42 

Plttock  V.  O'Neill _ 68  Pa.  268 _.  «27 

Plummer  V.  Yost _ _ 82  Or.348. — .—  256 

Plumlevv  Blrge 124  Mass.  67 - -  183 

Poe  V.  State _ - 10  Lea,  678 _ 601 

Poifue  V.  Simon 47  Or.  6 101 

Police  Jury  V.  Bouanchand 61  La.  Ann.  860 - -  206 

Pollock  V.  Whipple 88  Neb.  752 _ 167 

Powell  V.  Gagnon _ 62  Mlnti.  2J12 505 

Preston  v.  Loughran 58  Hun.  210 418,414 

Prftcbard  v.  Norwood. 165  MasM.  539 - 67 

Pugh  V.  Mccarty 44aa.38«.— &S7 

Purcell  V.  Daly — 19  Abb.  N.  C.  :»1 540 

R 

Railroad  Co.  v.  Oladmon 82  U.  8.  401 .  133 

Ramsey's  Appeal 2  Watts,  228 126 

Randle  v.  Boyd 73  Ala.  282 886 

Rankin  v.  Bush 98  App.  Dlv.  181 _  667 

Raymond  v.  Flavel 27  Or.  219-248 .S71 

Redner  v.  New  York  Fire  Ins.  Co. 92  Minn.  .W6 .._  149 

Reed  v.  United  States _ 78  U.  H.891 282,  268 

Reeder  v.  Sayre 70  N.  Y.  180 81 

Reese  v.  Klnkead 20  Nev.  65 878 

Reglna  v.  Mills  ♦ DearslyABell  Crown  Cases,  205.  671 

Rensselaer  Glass  Factory  v.  Reld 5  Cow.  608 84 

Rex  V.  Clewes - 4  Car.  A  P.  221 5HK 

Rhodes  V.  McGarres. 19  Or.  229 _ 871 

Roberts  v.  McPherson _ 62  N.  J.  Law,  lft5 _ __    81 

Roberts  v.Sutherlln 4  Or.  219 229 

Robertson  v.  Chapman - 152  U.  8.  673 414 

Robinson  v.  Blake  Mfg.  Co 148  Mass.  528,  538.. _ 27« 

Robinson  v.  Manhattan  Ry.Co 25  N.  Y.  Supp.  91 4<8 

Robinson  v.  Nevada  Bank  ._ 81  Cal.  106 489 

Robinson  v.  Taku  Fishing  Co.- 42  Or.  637 275 

Rockwell  V.  Portland  8av.  Bank 86  Or.80:< _ 381 

Rode  V.  Slebe 119  Cal.  518 142 

Rork  v.Sralth 56  WIh.  67 111 

Rose  V.  Wollenberg.- 31  Or.  289  .._ 71 

Rosenblatt  v.  Perkins 18  Or.  156 _160, 164,  Htt 

Ross  V.  Charleston  M.  A  S.  Transp.  Co 42  «.  C.  447 _.__ ._-  261 

Roth  V.  Northern  Phc.  Lum.  Co 18  Or.  205 4;J7 

Rowland  V.  Kreyenhagen 24  Cal.52._.. 196 

Rowsey  v.  Lynch ..._ 61  Mo.  660 _.    73 

Roys  V.  Roys 13  Vt.  543 oOK" 

Ruckman  v.  Union  Ry.Co.— 45  0r.678 Jtti 

Rugh  V.  Ottenhelmer _ _ 6  0r.  2»l 50ti 

Rummel  v.  Dllworth  Porter  Co 131  Pa.  509 _ l:W 

Russell  V.  Dennison ...45  Cal.  3.T7 373 

Ryder  V.  Flanders. ...30  Mich. 336  244 

S 

Sabin  V. Columbia  Fuel  Co _ 25()r.  15 102 

Sanders  v.  Greenstreet 23  Kan.  425 244 

Saveland  v.  Harlow... ^ 40  Wis.  431  - 220 

Scheld  V.  Rapp -_.121  Pa.  598 _ 42 

Scbenley  v.  Commonwealth _ 36  Pa. 29 _ ill 

Schwartz  v.  Gerhardt. _ ..44  Or.  425 382,  383 

Scranton  v.  Stewart. _ 62  Md.  68 4m 

Security  Trust  Co.  v.  Loewenberg 38  Or.  150 407 

Sellwood  V.Gray 11  Or.  584 152 

Settlemire  v.  Newsome 10  Or  446 153,  155 

Shakeley  v.  Taylor 1  Bond,  142 _ 414 

Shepard  v.  Briggs _ _.26  Vt.  149 _ 220 

Silver  V.Lee. _ _.38  0r.  508 _ 7,  100 


Table  of  Cases  Cited.  xvii 

PAGK 

Blmonds  v.  Wrightman 36  Or.  130 64 

Sims  V.  Brown 6Thoinp.  &  C.  5 865 

Slate's  Bstate ;. 40  Or.  m 610 

Hmlth  V.  Callaghan 68Iowa,6a2 244 

Smith  V.  Farra _ 21  Or.  896 534,  586 

Smith  V.  Ingles 2  Or.  48 7,  100. 102 

Smith  V.  Reeder 21  Or.  541 160,  164, 167, 160 

Smith  v.Shattuck _ 12  Or.  862 20O 

Smltson  V.  Southern  Pac.  Co 87  Or.  74 490 

Smith  V.Tracy 86  N.  Y.T9 217 

Sohler  V.  Massachasetts  Gen.  Hospital — 3  Gush.  483 244 

Spauer  v.  MoBee. 19  Or.  76_ 18 

Specht  V.  Spangenberg __ 70  Iowa,  488 622 

Spencer  v.  Merchant 126  U.  8.  846 _ Ill 

Spoonerv.  Holmes 102  Mass.  508 241 

St.  Joseph,  etc.  Ky.  Co.  v.  Buchanan  County 

Court 80  Mo.  486 257 

SI.  l^uls  Nat.  Stockyards  v.  QoATtey 106  111.  288. 600 

StaaU  V.  Washington 45  N.  J.  Law,  818 117 

Stabler  v.  Commonwealth 05  Pa.  818— 450 

Stanley  v.  Smith 15  Or.  506 W5 

State  V.  Anderson lOOr.  448— _— 602 

State  V.  Armstrong _ _. 48  Or.  207 488 

State  V.  Baker 28  Or.  441 2K5 

State  V.  Bailer 26  W.  Va.  00 _ _.__  450 

Slate  V.  Bernhelm 10  Mont.  512 501 

State  V.  Bloodsworth 25  Or.  88. , 560 

State  V.  Bowers J)6S.  C.  262 _._ 460 

State  V.  Brown -5  Or.  110 158 

State  V.  Brown lOOr.  216 64 

Slate  V.  Burns- J. 10  Wash.  52 581 

State  V.  Collector  of  Jersey  City 24  N.  J.  Law,  108 208 

State  V.  Corbett 67  Minn.  845 5'»1 

State  V.  Crane 64  Kan.  251 570 

State  V.  Crockett- 80  Or.  76 - 200 

State  V.  Dillon 82  Fla.  546- 261 

State  v.Evers- 40  Mo.  542 560 

State  V.  Foot  You 24  Or.  61 878,  400 

Slate  V.  Halght 85  N.  J.  Law,  178 208 

State  V.  Hayes 78  Mo.  807 462 

State  V.  Henkle 45  Or.  480 67 

State  V.  Hull 38  Or.  66 463 

State  V.  Humphreys- 43  Or.  44 237,  488 

State  V.  Kaufman _ 45  Mo.  App.  656. __ 88 

State  V.  Lawlor 28  Minn.  216 290 

Slate  V.  I.ee. 17  Or.  488- 340 

State  V.  Lucas 21  Or.  168 _ 520 

State  V.  Lung 21  Nev.  200 450 

State  V.  Magers 38  Or.  88 400 

State  V.  Manford .. 106  N.  W.  007 501 

State  V.  MarUn 47S.  C.67. 508 

State  V.  McDaniel 80  Or.  161 _  285 

SUte  V.  McNamara 100  Mo.  100 400 

State  V.  Mondy _ 24  Ind.  268 236 

State  V.  Morey- 26  Or.  241 546 

State  V.  Moores 82  Or.  65. 845 

State  V.  O'Day 41  Or.  405 — 64 

State  V.  O'Donnell 86  Or.  222 285 

State  V.  Pancoast 5  N.  D.  516 28H 

State  V.  Pennoyer 26  Or.  205 106 

State  V.  Pomeroy 30  Or.  17. __  488 

State  V.  Reed 60  Me.  550- _„  608 

State  V.  Reed 58  Kan.  767 _ 285,  288 

State  V.  Relnhart _ 26  Or.  466 473 

State  V.  Schuman 36  Or.  16-25 500 

State  V.  Security  Sav.  Co 28  Or.  410 381 

State  V.  Smith 22  Minn.  218 117 

State  V.  Stowell 60  Iowa,  535 .._ 620 

State  V.  Sweet— -___2  0r.  127 473 

State  V.  By phrett 27  8.  C.  20 517 

State  V.  Utter 34  N.  J.  Law,  480 141 

State  V.  Williams _ 7  Jones.  446 508 

State  V.  Williams 46  Or.  2»7 507 

State  V.  Williamson ^106  Mo.  162 287 

State  ex  rel.  v.  City  of  Newark 84  N.  J.  Law,  286 Ill 


XVIII  Table  of  Cases  Cited. 

PAGE 

Stal«ex  rel.  v.  DownlnR K)Or.  mi 882 

HtAte  ex  rel.  v.  Kstes.- lU  Or.  196 SO 

Htat©  ex  rel.  v.  Ix)rd _ 28  Or.  406 1 ISO 

Stale  ex  rel.  v.  McKiiinon _ 8  Or.  488 tflO 

State  ex  rel.  v.Savage_._ ___ _ 80  Ala.  1 «0K 

SUite  ex  i-el.  v.  Simon _.aOOr.  ;i«5.- _ 4aO 

Stcdman  v.  Mcintosh 2U  N.  C.  a)l 1«4 

Steffens  v.  Earl 40  N.  J.  Law,  128 8« 

Stelner  v.  Tranum 98  Ala.  315 __ 'Ml 

Stephens  V.  Allen 11  Or.  188 _. 407 

Stephens  V.  Murton _ _. 6  Or.  19S _ 549 

Sterling  V.  Sterling _— 43  Or.  200 380 

Stewart  V.  Phy 11  Or.  835 _ 182 

Stlnson  V.  People-  _.     ___ 43  111.  807.._ 348 

Stout  V.  City  Fire  Ins.  Co 12  Iowa,  871 21 

Stuller  V.  Sparks _ 51  Kan.  19... IBS 

Swalne  v.  Maryott- _ — —28  N.  J.  Eq.689 K7 


Taylor  v.  Murphy - _.  148  Pa  337-.„ 42 

Taylor  v.  Scott 10  Or.  483 IdO,  1«7 

Taylor  V.St.  Lou !.»«_ _ 14  Mo.  20    _. 177 

Taylor  v.  State 8nTex.07 oOh 

Ten  Eyck  v  Cialg— - .62  N.  Y.  40« 408 

Tennessee  Railroad  Co.  v.  ('ampbell 100  Tenn.  tfw 3K7 

Terre  Haute  &  I.  R.  Co.  v.  Rlttenhou.so 28  Ind.  App.  683 3:1 

The  Hoi laday  Case — ::7Fed.830 400 

Thomas  V.Cook— 8  B.  &  C.  728 71 

Thomas  v.  Portland 40  Or.  50 111 

Thompson  v.  Marshall 21  Or.  171_.__ 407,408,4:» 

Thompson  v.  PhaMilx  Ins.  Co 1J«  U.  S.  287 22 

Thompson  v.  Wolf 6  Or.  308 _  160 

Thorpe  v.  State 40  Tex.  Cr.  Rep.  346 570 

Title  Guarantee  &  Trust  Co.  v.  Northern  C. 

Invest.  Trust - -—73  Fed.  931 408 

Tolman  v.  Manufacturers'  Ins.  Co. 1  Cu.sh.  T3-._ 207 

Torp  v.  Gulseth <J7  Minn.  135 505 

Town  of  Valverde  v.  Shattuck 19  Colo.  104 251 

Townsend  v.  Peterson. 12  Colo.  401 38H 

TranHportatlon  Co.  v.  Chicago 00  U.  S.63.> 177 

Trlbble  v.  Taul — 7T  B.  Mon.468. 30 

Trotter  v.  Town  of  Stay  ton 45  0r.  :«1 178 

Tucker  v.  Moreland .'tt  U.  S.  58 467 

Tucker  v.  Northern  Term.  Co  — 41  Or.  82 _ 431 

Turner  v.  Tuolumne  County  Water  Co 25  (^al.  307 , 37:< 

Twin  Lick  Oil  Co.  v.  Marbury 91  U.  S.  587 —  414 

Twiss  V.  Boehmer. _ 30  Or.  350— 160, 1(J7 

U 

Udderxook  v.  Commonwealth 76  Pa.  310 500 

Union  St.  Ry.  Co.  v.  First  Nat.  Bank 42  0r.  60H 303 

United  States  v.  Carey 110  U.  S.  51 _ STO 

United  States  v.  Sada 2  Fed.  754 344 

United  States  v.  Shea 152  U.  8.  17!L._ 2IM 

United  States  Mortg.  Co.  v.  Marquam 41  Or.  301 -.377,  401,  408,  411,  416 

Upton  v.  Hume 24  Or.  420 624 


Van  Baalen  v.  Dean-.__ _ _27  Mich.  104. 62 

Van  Flpps  v.  Van  Epps 0  Paige,  237 404 

Van  Namee  v.  Bradley 60  111.  200— 62 

Van  Winkle  v.  Continental  Fire  Ins.  Co 55  W.  Va.  286 __ 149 

Vance  v.  Pena 86  Cal.828- _ 196 

Vancouver  V.  Wintler 8  Wash.  378 178 

Vegely  v.  Robinson __20  Mo.  App.  100 161 

Viohl  V.  North  Pac.  Lum.  Co .46  Or.  207 487 


Table  of  Casks  Cited.  xix 

w 

PAC4E 

Wadhams  V.  Allen _ _ «  Or.  485 _ im 

Wadhams  v.  Balfour 32  Or.  313 6«2 

WaggamaD  v.  Bartlett 2Mackey,4dO _  1«8 

Waggoner  V.  Maumun _ _ 112  La.  w»  ._ aOf> 

Waft  V.  Borne 123  N.  Y.  5©2 _.  217 

Walte  V.  Willis 42  Or.  288 182,  IH3 

Walker  V.  Southern  Pac.  Co 1«5  U.  8. 508 i-jS 

WarlDg'8  Executor  v.  Waring 10  B.  Mon.  801 418 

Warner  v.  Clark. 21  L.  R.  A.502 514 

Washington  Invest.  Ashoc.  v.  Stanley. 88  Or.  819 _ 01 

Webb  V.  Nlckerson __11  Or.  882_ _ 507 

Webb  V.  Stale 78  Miss.  466 286 

Weber  V.  Weber 16  Or.  163 615 

Welder  v.  Osborn _ 20  Or.  307 _..    M 

'  Wells  V.  Halpln.„_ _ _. 50  Mo.  92 241 

Welsh  V.  People 17  III.  880 347 

West  V.  Taylor 16  Or.  165 358 

Western  Sav.  Co.  v.  Houston 38  Or.  877 91 

Western  Transp.  Co.  v.  Barber 56  N.  Y.  544 366 

Whalen  v.  McAlahan 47  Or.  37 179 

Wheeler  v.  Burckhardt 34  Or.  504 _._    77 

Wheeler  v.  McCorrlsten 24  III.  40 62 

White  V.  Espey 21  Or.  328 _ 44H 

White  V.  lAdd- 41  Or.  324 619 

While  V.  Langdon .80  Vt.  509,  O03 222 

White  v.NorQi west  Stage  Co 5  Or.  90 — „. 37 

Whitehead  v.  Jessup 7  Colo.  App.  460  . 30 

Whitney  v.  HIgglns lOCal.  647 _ 154 

Wilkinson  v.  Fllby 24  Wis.  441 ___  244 

Wilkinson  v.  Lelaud 27  U.  8.  627 244 

Williams V. Commonwealth 29  Pa.  102 601 

Williams  v.  Commonwealth 85  Va.  60O 490 

Williams  v.Galllck 110r.887__ 80,370 

Williams  V.  Patter. 2  Barb.  816 IW 

Williams  V.  Wilson 42Or.200 158,  165 

Willis  V.Crawford 38  Or.  522 160 

Willlson  V.  Douglas 66  Md.99 _ 42 

Wilson  V.  Wilson 54  Mo.  218 66 

Winkle  v.  Winkle 8  Or.  198 64 

Winter  v.  Norton l  Or.  48 _ 86,  477 

Wlnthroplron  Co.v.Meeker.. 109  U.S.  180 880 

Wood  V.  Diamond  Elec.Co 185  Pa.  629- 4.S5 

Wood  v.Ijeadbltler 18  M.  A  W.888 540 

Woodward  v.  Oregon  Ry.  A  Nav.Co 18  Or.  289- 281 

Woodworth  V.  Glbbs 61  Iowa,  898 209 

Woolfork'B  Adm'r  v.  Sullivan 28  Ala.  548— 62 

Worth  V.Butler- 7  Blackf.  261 62a 

Wright  V.  Douglass 2  N.  Y.  873 7 


CASES  DEQDED 


SUPEEME  COUBT 


STATE  OF  OREGON. 


Argaed  21  June,  decided  17  July,  rehearing  denied  28  August,  1906. 

OBEGON  TBANSFEB  00.  v.  PORTLAND. 

81  Pac.  575,  82  Pac.  16. 

iMPBOviNO  Separate  Pabts  of  Street  in  One  Proceedino. 

1.  Under  a  charter  providing  that  "the  improvement  of  each  street  or  part 
thereof  shall  be  made  under  a  separate  proceeding  "  (Portland  Charter  1W)8,  g  875,) 
the  city  cannot  divide  a  street  Into  several  parts  and  direct  their  improvement 
In  one  proceeding  with  different  classes  of  work  —such  a  proceeding  is  void. 

Interpretation  of  Judicial  Opinions. 

2.  Judicial  opinions  must  always  be  considered  with  reference  to  the  facts 
Involved  and  the  points  presented  for  decision. 

From  Multnomah :  Arthur  L.  Frazer,  Judge. 

Statement  by  Mr.  Justice  Bean. 

Suit  by  the  Oregon  Transfer  Co.  and  others  against  the 
City  of  Portland  and  others.  The  plaintiffs  are  the  own- 
ers of  blocks  217  and  225  in  Couch's  Addition  to  the  City 
of  Portland,  fronting  on  Tenth  Street.  In  January,  1904, 
the  common  council  adopted  a  resolution  for  the  im- 
provement of  Tenth  Street  from  the  north  line  of  Wash- 
ington to  the  south  line  of  Front,  about  17  blocks,  in  the 
following  manner :  From  the  north  line  of  Washington  to 
the  south  line  of  Marshall,  a  distance  of  thirteen  blocks, 
by  removing  "all  mud,  loose  earth  and  debris  from  the 
surface  of  the  street  and  bringing  the  same  to  the  proper 


2  Oregon  Transfer  Co.  v.  Portland.      [47  Or. 

grade  with  crushed  rock  and  crushed  rock  screenings  full 
width  with  full  intersections,  and  by  constructing  artificial 
stone  sidewalks  and  stone  cross-walks."  From  a  line  ten 
feet  south  of  the  center  line  of  Northrup  to  the  south  line 
of  Front,  three  blocks,  the  street  to  be  "brought  to  grade 
with  clean  earth,  rock,  sand  or  other  suitable  filling,  and 
by  planking  the  roadway  full  width  with  full  intersections 
in  accordance  with  the  city  engineer's  plans,  specifications 
and  estimates,  and  wooden  cross-walks  shall  be  constructed 
twelve  feet  in  width."  The  resolution  declared  that  the 
improvement  from  Washington  to  Marshall  should  be 
classed  as  macadam,  and  that  from  Northrup  to  Front  as 
a  plank  roadway.  That  portion  of  the  street  between  Mar- 
shall and  Northrup  was  not  included  in  the  proposed  im- 
provements, but  had  probably  been  improved  at  some 
previous  time.  Notices  of  the  intention  to  improve  were 
posted  at  Washington  and  Front  streets,  but  not  elsewhere. 
The  council  thereafter  passed  an  ordinance  for  the  im- 
provement of  the  street  in  accordance  with  the  resolution, 
and  awarded  the  contract  to  the  defendant  the  Smyth  & 
Howard  Co.  The  plaintiffs  thereupon  brought  this  suit  to 
enjoin  the  prosecution  of  the  work  in  front  of  their  prop- 
erty on  the  ground  that  the  city  was  without  jurisdiction 
to  proceed,  as  it  was  attempting  to  improve  two  separate 
parts  of  a  street  in  one  proceeding.  A  demurrer  was  sus- 
tained, and  the  complaint  dismissed.  From  a  decree  in 
favor  of  the  defendants,  plaintiffs  appeal.      Reversed. 

For  appellants  there  was  a  brief  over  the  names  of  Chaa, 
E,  S.  Woody  Stewart  B,  Linthicum,  and  J,  Couch  Flanders^ 
with  an  oral  argument  by  Mr.  Flanders  and  Mr,  Ralph 
Roloefson  Duniway, 

For  respondents  there  was  a  brief  over  the  names  of 
Lawrence  Alexander  McNary^  City  Attorney,  and  John  P. 
Kavanaugh,  with  an  oral  argument  by  Mr.  McNary, 


July,  1905.]     Orbqon  Transfer  Co.  v.  Portland.  3 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

1.  The  city  charter  provides  that  "whenever  the  council 
shall  deem  it  expedient  or  necessary  to  improve  any  street 
or  any  portion  thereof,  it  shall  require  from  the  city  en- 
gineer plans  and  specifications  for  an  appropriate  improve- 
ment, and  estimates  of  the  work  to  be  done  and  the  prob- 
able cost  thereof;  and  the  city  engineer  shall  file  such 
plans,  specifications,  and  estimates  in  the  office  of,  the 
auditor.  The  improvement  of  each  street  or  part  thereof, 
shall  be  made  under  a  separate  proceeding":  Section  375. 
If  the  plans,  specifications,  and  estimates  of  the  engineer 
are  satisfactory  to  the  council,  it  shall  approve  the  same, 
and  by  resolution  declare  its  purpose  of  making  the  im- 
provement, define  the  boundaries  of  the  district  benefited 
and  to  be  assessed  therefor  (section  375),  and  the  class  of 
such  improvement,  and  the  number  of  years  for  which  it 
shall  be  maintained  by  the  city :  Section  384.  The  resolu- 
tion for  the  improvement  shall  be  published  in  the  city 
official  paper,  and  within  five  days  from  the  first  publi- 
cation the  city  engineer  shall  cause  to  be  conspicuously 
posted  at  each  end  of  the  contemplated  improvement  a  no- 
tice of  such  proposed  improvement:  Section  376.  Within 
twenty  days  from  the  date  of  the  first  publication  of  the 
notice  the  owners  of  two  thirds  or  more  of  the  property 
within  the  assessment  district  may  file  a  written  remon- 
strance against  such  improvement,  which  shall  be  a  bar  to 
any  further  improvement  for  a  period  of  six  months,  un- 
less the  owners  of  one  half  or  more  of  the  property  affected 
shall  subsequently  petition  therefor:  Section  377,  Laws 
1903,  pp.  3, 150,  151.     . 

The  position  of  the  plaintiffs  is  that  the  proceeding  in 
question  was  invalid  and  void  for  the  reason  that  neither 
the  resolution  for  the  improvement,  nor  the  ordinance 
therefor,  provided  for  a  continuous  improvement  of  the 
street,  but,  on  the  contrary,  expressly  omits  that  part 


4  Orboon  Transfer  Ck>.  v.  Portland.       [47  Or. 

between  the  south  line  of  Marshall  and  a  point  10  feet 
south  of  the  center  line  of  Northrup;  thus  including  in 
one  proceeding  the  proposed  improvement  of  two  separate 
and  distinct  portions  of  a  street,  contrary  to  the  charter. 
Proceedings  for  the  improvement  of  streets  in  a  munici- 
pality at  the  cost  of  abutting  property  must  be  conducted 
in  substantial,  if  not  literal,  compliance  with  the  require- 
ments of  the  charter;  and,  when  the  mode  for  its  exercise 
is  provided,  it  becomes  the  measure  of  the  power:  Bank 
of  Columbia  v.  Portland,  41  Or.  5  (67  Pac.  1112).  If,  there- 
fore,  the  charter  requires  the  improvement  of  separate 
portions  of  a  single  street  to  be  made  under  separate  pro- 
ceedings, the  proceeding  in  question  is  void,  for  it  shows 
on  its  face  that  the  improvement  of  two  portions  of  the 
street  was  included  therein.  For  the  city  it  is  argued  that 
the  charter  does  not  mean  that  the  improvement  of  sepa- 
rate parts  of  the  same  street  shall  be  made  under  separate 
proceedings,  but  that  it  was  designed  to  prevent  the  con- 
templated improvement  of  two  separate  streets,  or  parts 
thereof,  from  being  joined  in  one  proceeding.  This  is  a 
strained  and  unreasonable  construction  of  the  language  of 
the  charter.  Section  376  provides  that  when  the  council 
shall  deem  it  expedient  to  improve  any  street,  or  any 
portion  thereof,  it  shall  require  from  the  city  engineer 
plans,  specifications,  etc.,  and  that  ^^tbe  improvement  of 
each  street,  or  part  thereof,  shall  be  made  under  a  separate 
proceeding."  The  charter  is  here  dealing  with  but  one 
street,  and,  when  it  provides  in  that  connection  that  the 
improvement  of  each  part  of  a  street  shall  be  made  under 
a  separate  proceeding,  it  must  refer  to  the  improvement 
of  a  single  street,  and  not  to  the  joining  of  improvements 
of  separate  portions  of  different  streets.  This  is  a  natural 
and  reasonable  provision,  and  was,  no  doubt,  inserted  for 
the  benefit  of  property  owners  affected  by  a  proposed  im- 
provement, and  who  are  given  the  right  of  remonstrance 


Aug.  1905.]    Obbqon  Transfer  Co.  v,  Portland.  5 

by  the  charter.  Without  some  such  limitation  or  restric- 
tion, costly  and  expensive  improvements  of  part  of  a  street 
could  be  united  with  mere  repairs  or  inexpensive  improve- 
ments in  other  and  different  portions  of  the  same  street, 
and  thereby,  perhaps,  cut  off  the  right  of  the  owners  of 
the  property  affected  by  the  real  and  substantial  improve- 
ments to  remonstrate.  It  was  to  preserve  this  right  that 
the  provision  in  question  was  inserted. 

It  may  be  argued  that  this  construction  will  require 
each  block  in  a  street,  where  the  intersections  have  been 
improved,  to  be  treated  as  a  separate  part,  and  provided 
for  by  a  separate  proceeding.  But  the  intersections  may 
with  propriety  be  included  in  or  omitted  from  a  contem- 
plated street  improvement  without  destroying  its  continu- 
ity. If  the  intersections  have  been  improved,  they  may 
be  considered  and  treated  as  a  part  of  the  cross-street,  and 
not  of  the  street  intended  to  be  improved.  But  where,  as 
in  this  case,  the  city  has,  by  resolution,  ordinance,  and 
contract,  expressly  divided  the  street  into  two  separate 
parts  or  portions,  with  entirely  different  classes  of  im- 
provements, the  proceeding  must  be  regarded  as  one  for 
the  improvement  of  distinct  portions  of  the  street,  and 
should  be  conducted  as  such. 

The  decree  of  the  court  below  is  reversed. 

Reversed. 


Decided  28  Aagust,  1906. 

On  Motion  for  Rehearing. 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

2.  The  only  point  decided  in  the  case  is  that  a  proceed- 
ing for  the  improvement  of  a  street  which  on  its  face 
shows  that  it  includes  the  proposed  improvement  of  two 
separate  and  distinct  parts  of  the  street  is  void  under  the 
charter.    Whether  different  classes  of  improvement  may 


6  PoGUE  V.  Simon.  [47  Or. 

be  joined  in  the  one  proceeding,  or  whether  the  improve- 
ment of  small  portions  or  sections  of  a  street  may  be  omit- 
ted from  the  plans  and  specifications  in  a  proceeding  for  a 
continuous  improvement,  without  invalidating  it,  are  not 
involved  or  decided.  The  language  of  the  opinion  in  this 
as  in  all  cases  must  be  interpreted  with  reference  to  the 
actual  question  before  the  court  for  decision.  The  peti- 
tion will  be  denied.       Reversed  :  Rehearing  Denied. 


Argued  22  June,  decided  17  July,  1906. 

POGUE  V,  SIMON. 

81  Pac.  606. 

d47   101  LiKN  OF  Judgment  on  Equitable  Interest  in  Land. 

^- — * 1.  In  Oregon  the  lien  of  a  Judgment  does  not  attach  to  an  equitable  interest, 

and  of  course  sacb  an  Interest  is  not  liable  to  sale  on  an  execution. 

Natube  of  Right  of  Execution  Pubchaser  Befobe  Deed. 

2.  Under  Section  227  of  B.  <&  C.  Comp.,  providing  that  "all  property  •  •  or 
interest  therein  of  a  Judgmcmt  debtor  shall  be  liable  to  an  execution"  the  interest 
of  a  purchaser  of  land  at  an  execution  sale  in  the  property  purchased  between 
the  expiration  of  the  period  for  redemption  and  the  execution  of  a  sherilTs  deed 
is  a  substantial  legal  estate  subject  to  levy  and  sale. 

From  Marion :   George  H.  Burnett,  Judge. 
Action  by  M.  E.  Pogue  against  N.  Simon,  in  which  there 
was  a  judgment  for  defendant.  Reversed. 

For  appellant  there  was  a  brief  over  the  names  of  Will- 
iam M.  Kaiser  and  Woodson  T.  Slater^  with  oral  arguments 
by  Mr.  Kaiser  and  Mr,  Myron  Edwin  Pogue,  in  pro.  per. 

For  respondent  there  was  a  brief  and  an  oral  argument 
by  Mr.  George  Greenwood  Bingham. 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

1.  This  is  an  action  to  recover  possession  of  real  prop- 
erty formerly  belonging  to  W.  E.  Hawkins.  On  October 
12, 1895,  it  was  sold  at  sheriff's  sale  on  an  execution  issued 
on  a  judgment  against  Hawkins  and  in  favor  of  Samuel 
Heitshu,  and  purchased  by  Heitshu.    The  sale  was  con- 


July,  1905.]  PoGUK  V.  Simon.  7 

firmed,  and,  after  the  time  for  redemption  had  expired,  but 
before  the  execution  of  a  sheriff's  deed,  Heitshu's  interest 
was  seized  under  an  execution  on  a  judgment  against  him, 
and  sold  to  one  Goodnough.  This  sale  was  confirmed,  and 
in  due  time  a  sheriff's  deed  was  regularly  executed  and 
delivered  to  the  plaintiff,  to  whom  the  certificate  of  sale 
had  in  the  mean  time  been  assigned  by  Goodnough.  Two 
days  after  the  levy  of  the  execution  on  Heitshu's  interest 
he  assigned  his  certificate  of  sale  to  a  Mrs.  Tuthill,  to 
whom  a  sheriff's  deed  was  subsequently  made,  and  who 
conveyed  the  property  to  the  defendant.  It  thus  appears 
that  both  parties  claim  title  through  Heitshu,and  the  only 
question  for  decision  is  whether  at  the  time  of  the  levy 
under  the  execution  on  the  judgment  against  him  in  favor 
of  Goodnough  he  had  such  an  estate  or  interest  in  the 
property  as  could  be  levied  upon  and  sold  under  an  exe- 
cution at  law.  The  statute  (B.  &  C.  Comp.  §  227)  provides 
that  "all  property,  including  franchises,  or  rights  or  inter- 
est therein,  of  the  judgment  debtor,  shall  be  liable  to  an 
execution,  except  as  in  this  section  provided."  It  has  been 
held  that  such  a  statute  applies  to  an  equitable  as  well  as 
a  legal  interest  in  land :  Wright  v.  Doriglass,  2  N.  Y.  373 ; 
Higgins  v.  McConnell,  130  N.  Y.  487  (29  N.  E.  978);  Page 
W.Rogers,  31  Cal.  293,  301.  The  ruling  of  this  court  how- 
ever, is  that  a  judgment  is  not  a  lien  on  a  mere  right  or 
interest  which  can  only  be  asserted  or  enforced  in  a  court 
of  equity,  nor  can  such  an  interest  be  seized  and  sold  under 
an  execution  at  law :  Smith  v.  Ingles,  2  Or.  43 ;  Bloomfield 
Y.Humason,  11  Or.  229  (4  Pac.  332);  Silver  v.  Lee,  38  Or. 
508  (63  Pac.  882). 

2.  The  estate  or  interest  of  Heitshu,  however,  at  the 
time  of  the  levy  and  sale  under  the  execution  on  the  judg- 
ment against  him  was  more  than  such  an  equity.  It  was  a 
substantial  right  or  interest  in  the  property.  The  time  for 
redemption  had  expired  and  his  inchoate  right  acquired 


8  PoGUE  V.  Simon.  [47  Or. 

by  his  purchase,  had  become  absolute  and  indefeasible. 
It  is  true  the  sheriff's  deed  had  not  been  made,  and  there- 
fore the  record  title  was  still  in  the  judgment  debtor.  But 
this  was  nothing  more  than  a  dry,  naked  legal  title,  with- 
out any  beneficial  interest,  and  one  of  which  he  could  have 
been  deprived  at  any  time  without  his  consent  by  a  sheriff's 
deed.  A  purchaser  at  an  execution  sale  is  entitled  to  the 
possession  of  the  property  from  the  day  of  sale.  Until  the 
time  for  redemption  has  expired,  his  right  or  title  is  incho- 
ate, and  liable  to  be  defeated  by  a  redemption.  When  the 
right  of  redemption  no  longer  exists,  his  possession  and 
estate  are  complete,  although  the  technical  naked  legal  or 
record  title  remains  in  the  judgment  debtor  until  the  exe- 
cution and  delivery  of  the  sheriff's  deed.  An  equitable 
title  is  '^a  right  or  interest  in  land,  which,  not  having  the 
properties  of  a  legal  estate,  but  being  merely  a  right  of 
which  courts  of  equity  will  take  notice,  requires  the  aid  of 
such  court  to  make  it  available":  1  Bouvier,  Law  Die. 
(Rawle's  ed.)  p.  680.  The  estate  or  interest  of  a  purchaser 
at  an  execution  sale  after  the  time  for  redemption  has  ex- 
pired is  not  a  right  of  which  a  court  of  equity  alone  will 
take  notice,  nor  does  it  require  the  aid  of  such  a  court  for 
its  preservation  or  protection.  It  is  a  substantial  legal 
estate,  and  in  case  of  a  refusal  of  the  sheriff  to  make  a 
deed  as  required  the  remedy  of  the  purchaser  is  not  in 
equity,  but  by  mandamus,  or  motion  in  the  court  from 
which  the  execution  issued  :  25  Am.  &  Eng.  Enc.  Law 
(2  ed.),  809. 

In  speaking  of  the  effect  of  a  deed  made  in  the  name 
of  a  purchaser  at  an  execution  sale  after  his  death,  the 
Supreme  Court  of  Washington  says :  "It  is  no  doubt  true 
that  a  deed  so  executed  could  have  no  force  whatever,  but  it 
does  not  follow  that  no  title  was  acquired  by  the  purchaser 
at  the  execution  sale.  The  certificate  of  purchase  and  con- 
firmation of  sale  were  alone  essential  to  pass  the  substantial 


July,  1905.]  PoGUK  V.  Simon.  9 

title  of  the  defendant  in  the  execution  to  the  purchaser 
at  the  sale.  The  execution  of  the  deed  after  the  time  for 
redemption  had  expired  was  a  purely  ministerial  act  on 
the  part  of  the  officer,  and  could  have  been  compelled  by 
the  purchaser,  or  those  claiming  under  him,  at  any  time 
in  a  proper  proceeding  for  that  purpose":  Diamond*Y. 
Turner,  11  Wash.  189,  192  (39  Pac.  379).  Mr.  Justice 
Sawyer  says,  in  Page  v,  Rogers,  31  Cal.  293,  301,  that  the 
purchaser  at  an  execution  sale  ''acquires  an  equitable  estate 
in  the  lands ;  conditional,  it  is  true,  but  which  may  become 
absolute  by  simple  lapse  of  time,  without  the  perform- 
ance of  the  only  condition  which  can  defeat  the  purchase. 
The  legal  title  remains  in  the  judgment  debtor,  with  the 
further  right  in  him  and  his  creditors  having  subsequent 
liens  to  defeat  the  operation  of  a  sale  already  made  during 
a  period  of  six  months,  after  which  the  equitable  estate 
acquired  by  the  purchaser  becomes  absolute  and  indefeasi- 
ble, and  the  mere  dry,  naked  legal  title  remains  in  the 
judgment  debtor,  with  authority  in  the  sheriff  to  divest  it 
by  executing  a  deed  to  the  purchaser.''  And  in  a  note  to 
Mcllvaine  v.  Smithy  97  Am.  Dec.  311,  it  is  said  by  the  com- 
piler that  a  ''purchaser  at  execution,  after  the  period  of 
redemption  has  expired,  and  before  conveyance  to  him  by 
the  sheriff,  has  an  interest  which  is  undoubtedly  subject 
to  execution  ;  for  in  that  case  the  equitable  estate  acquired 
by  the  purchaser  becomes  absolute  and  indefeasible." 

We  are  of  the  opinion,  therefore,  that  Heitshu  had  a  title 
to  the  property  in  question  at  the  time  of  the  levy  under 
the  execution  against  him  that  could  be  legally  seized  and 
sold  under  execution,  and  therefore  the  judgment  must  be 
reversed.  Kbvbrsbd. 


10  AUSPLUND  V.  jEtNA  INDEMNITY  Co.  [47  Or. 

Axig;ued  27  June,  decided  17  July,  rehearing  denied'28  August,  1905. 

AUSPLUNB  V.  2TNA  INDEMNITY  00. 

81  Pac.  577, 82  Pac.  12. 

INDXMNITY  Contract— Rbcitals  and  Conditions. 

1.  The  liability  under  an  indemnity  bond  is  not  limited  to  the  recitals,  where 
by  appropriate  reference  the  contract  is  incorporated  into  the  bond  —  the  con . 
tract  being  then  the  measure  of  the  liability. 

For  instHnce:  An  indemnity  undertaking  reciting  that  the  principal  has 
entered  into  a  written  agreement  bearing  a  certain  date,  "in  substance  prac- 
tically as  follows*'— followed  by  a  general  statement  of  the  terms  of  the  contract, 
and  conditioned  for  the  faithful  compliance  by  the  principal  "with  all  the  terms, 
covenants,  and  conditions  of  said  contract,"  incorporates  the  principal's  contract 
into  the  undertaking,  and  renders  the  indemnitor  liable  for  a  breach  of  a  pro- 
vision of  the  contract  pot  specially  recited  in  such  general  statement,  the  entire 
contract  being  by  reference  a  part  of  the  undertaking. 

Pleading— Waiver  of  Objection  of  Limitation. 

2.  Under  B.  A  C.  Comp^  I  68,  i)ermittlng  as  ground  of  demurrer  that  the  action 
was  not  commenced  within  the  time  limited  by  the  Code,  an  objection  that  the 
complaint  shows  on  Its  face  that  tbe  action  was  not  commenced  within  the  time 
specified  mast  be  taken  by  demurrer,  or  it  will  be  deemed  waived ;  but  whether 
this  applies  to  the  limitation  imposed  by  special  contracts  Is  not  decided. 

Pleading  —  ANTICIPATING  Defense  — Insufficiency  of  Answer  Set- 
ting UP  Special  Limitation. 

3.  Where  a  complaint  shows  facts  sufficient  to  excuse  plalntifTs  delay  in  not 
instituting  the  action  within  the  time  limited  in  the  contract  sued  on,  which  are 
denied,  a  separate  answer  alleging  that  the  action  was  not  commenced  within 
the  time  so  limited  is  demurrable,  as  not  containing  new  matter  constituting  a 
defense,  under  B.  <&  C.  Comp.  g  78.  The  issue  is  made  by  the  allegailon  and  denial, 
so  the  allegation  in  the  separate  answer  is  no  defense. 

Principal  and  Surety— Effect  of  Assuming  Contract  by  Surety- 

4.  Where  a  surety,  either  corporate  or  individual,  in  pursuance  of  the  terms 
of  the  undertaking,  assumes  the  performance  of  the  principal's  contract,  such 
surety  is  subrogated  to  the  rights  of  the  principal  In  such  contract,  and  becomes 
subject  to  his  liabilities. 

Appeal— Presumption  in  Absence  of  Testimony. 

5.  Where  the  bill  of  exceptions  does  not  purport  to  contain  all  the  testimony 
given  at  the  trial,  and  the  court  does  not  certify  that  all  such  testimony  is  incoi> 
porated  in  the  transcript,  it  will  be  presumed  on  appeal  that  the  evidence  was 
sufficient  to  support  the  findings. 

Validity  of  Special  Contract  Limitation. 

6.  The  parties  to  a  contract  may  stipulate  that  an  action  for  its  breach  shall 
be  brought  within  a  certain  period,  and,  if  the  limitation  so  prescribed  is  reason- 
able, it  will  be  upheld. 

Validity  of  Unreasonable  Contract  Limitations. 

7.  A  building  contract  bound  the  contractor  to  pay  for  all  labor  and  materials 
promptly,  so  that  no  liens  should  be  filed  against  the  property  on  account  thereof. 
An  indemnity  undertaking  authorized  the  surety  t^o  assume  the  contract  and 
complete  the  same  in  case  the  contractor  should  foil  to  comply  with  the  terms 
thereof,  and  ftirther  provided  that  any  suit  brought  thereon  should  be  instituted 
within  six  months  after  a  breach  of  the  contract.    The  indemnitor  assumed  the 


July,  1905.]    AusPLUND  v.  ^Etna  Indbmnity  Co.  11 

performance  of  the  contract,  and  accepted  payments  thereon  Arom  the  owner, 
but  foiled  to  pay  for  material  used  In  the  construction  of  the  building^.  Liens 
were  consequently  filed  against  the  property  the  amount  of  which  could  not  be 
determined  until  they  were  foreclosed,  which  could  not  be  done  with  reasonable 
promptness  until  more  than  six  months  after  the  breach.  Heldf  that  the  limi- 
tation period  of  six  months  was,  under  the  circumstances,  unreasonable  and 
inoperative. 

Waivkr  of  Contract  Limitation  by  Guarantor. 

8.  An  indemnitor  on  a  building  contract  which  assumed  the  performance  of 
its  principal's  contract,  and  received  from  the  owner  the  money  due  thereon,  and 
foiled  to  comply  with  the  terms  of  its  undertaking  thereby  waived  a  stipulation 
in  such  undertaking  limiting  to  six  months  after  breach  the  time  within  which 
an  action  might  be  brought  on  the  contract. 

APPBAI.^EVIDSNCX^BILL  of  EXCBPTION8. 

9.  A  bill  of  exceptions  does  not  negative  the  fact  that  defendant  may  have 
introduced  testimony  on  which  the  findings  for  plaintiff  are  based,  where,  after 
a  recital  that  the  foregoing  was  all  the  testimony  offered  by  plaintiff,  and  there- 
upon defendant  moved  for  an  order  of  nonsuit,  which  was  denied,  it  recites  that 
"at  the  close  of  the  case,  no  more  testimony  having  been  Introduced  on  behalf 
of  plaintiff,"  defendant  moved  for  findings  and  Judgment  in  Its  fovor,  which  was 
denied. 

From  Multnomah :   Arthur  L.  Frazer,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  action  was  instituted  August  28,  1903»  by  Octavia 
Ausplund  against  J.  W.  Higgins  And  the  ^Etna  Indemnity 
Co.  to  recover  damages  for  the  breach  of  an  agreement. 
The  complaint  states,  in  effect,  that  the  defendant,. the 
iEtna  Indemnity  Co.,  is  a  corporation  engaged  in  this 
State  in  the  indemnity  business ;  that  the  defendant,  Hig- 
gins, on  June  21,  1902,  entered  into  a  written  contract 
with  plaintiff,  whereby  he  stipulated  to  erect  for  her  on  or 
before  November  1  of  that  year  a  dwelling  house,  and  to 
secure  the  performance  of  the  terms  of  such  agreement 
the  defendants  duly  executed  to  her  an  undertaking,  of 
which  the  following  is  a  copy : 

"The  ^tna  Indemnity  Company, 
Habtforp,  Conk. 

Know  all  Men  by  these  presents,  that  we,  J.  W.  Higgins, 
of  Portland,  Or.,  as  principal,  and  The  iEtna  Indemnity 
Company,  a  corporation  created  and  existing  under  the 
laws  of  the  State  of  Connecticut,  and  whose  principal  office 
is  located  in  Hartford, Conn., as  surety, are  held  and  firmly 


12  AuspLUND  V.  Mtjua  Indemnity  Co.        [47  Or. 

bound  unto  Octavia  Au8plund,of  Portland,  Or.,  in  the  full 
and  just  sum  of  twenty-three  hundred  and  forty-six  dol- 
lars, good  and  lawful  money  of  the  United  States  of  Amer- 
ica, to  the  payment  of  which  sum,  well  and  truly  to  be 
made,  the  said  principal  binds  himself,  his  heirs,  execu- 
tors, and  administrators,  and  the  said  surety  binds  itself, 
its  successors  and  assigns,  jointly  and  severally ,  firmly  by 
these  presents.  Signed,  sealed,  and  dated  this  26th  day 
of  June,  A.  D.  1902. 

Whereas,  the  said  principal  has  entered  into  a  certain 
written  agreement  with  Octavia  Ausplund,  bearing  date  of 
June  21,  1902,  being  in  substance  practically  as  follows: 
To  faithfully  erect  and  finish  for  and  in  consideration  of 
the  sum  of  twenty-three  hundred  and  forty-six  ($2,346.00) 
dollars  a  two-story  and  basement  frame  residence,  situate 
on  the  west  half  of  lots  3  and  4,  block  289,  in  Hawthorne 
Park,  in  the  City  of  Portland,  Or.,  conformable  to  the  draw- 
ings and  specifications  made  by  the  owner ;  said  work  to 
be  completed  on  or  before  the  1st  day  of  November,  1902. 

Now,  Therefore,  the  condition  of  the  foregoing  obliga- 
tion is  such  that  if  the  said  principal  shall  well,  truly  and 
faithfully  comply  with  all  the  terms,  covenants  and  con- 
ditions of  said  contract  on  his  part  to  be  kept  and  per- 
formed according  to  its  tenor,  then  this  obligation  shall 
be  void ;  otherwise  to  remain  in  full  force  and  effect. 

This  bond  is  issued  subject  to  the  following  provisions  : 

Provided,  that  the  said  surety  shall  be  notified  in  writ- 
ing of  any  act  on  the  part  of  the  said  principal,  his  agents 
or  employees,  which  may  involve  a  loss  for  which  the  said 
surety  is  responsible  hereunder,  immediately  after  the 
occurrence  of  such  act  shall  have  come  to  the  knowledge 
of  the  fully  authorized  representative  or  representatives 
of  Octavia  Ausplund,  who  shall  have  the  supervision  of 
the  completion  of  said  contract,  and  a  registered  letter 
mailed  to  the  office  of  Clemens  &  O'Bryan,  managers  of 
the  ^tna  Indemnity  Company,  at  Portland,  Or.,  shall  be 
deemed  sufficient  notice  within  the  meaning  of  this  bond. 

Provided,  that  if  the  said  principal  shall  fail  to  comply 
with  all  the  terms  of  said  contract  to  such  an  extent  that 
same  shall  be  forfeited,  then  said  surety  shall  have  the 
right  and  privilege  to  assume  said  contract  and  to  sublet 


July,  1905.]     AuspLUND  v.  ^tna  Indemnity  Co.  13 

or  complete  the  same,  whichever  said  surety  may  elect  to 
do,  provided  it  is  done  in  accordance  with  said  contract. 

Provided  Further,  that  in  the  event  of  any  breach  of  the 
conditions  of  this  bond,  said  surety  shall  be  subrogated 
to  all  the  rights  and  properties  of  said  principal  arising 
out  of  said  contract,  and  all  payments  deferred,  and  any 
and  all  moneys  at  that  time  due  said  principal  under  and 
by  virtue  of  said  contract  shall  be  credited  upon  any  claim 
the  said  Octavia  Ausplund*  may  make  upon  said  surety 
because  of  said  breach. 

And  Provided  Further,  that  any  suits  at  law  or  proceed- 
ings in  equity  brought  against  this  bond  to  recover  any 
claim  thereunder  must  be  instituted  within  six  months 
after  the  first  breach  of  said  contract. 

And  Provided  Further,  that  the  said  surety  shall  not 
be  liable  for  a  greater  sum  than  twenty-three  hundred 
and  forty-six  ($2,346.00)  dollars  because  of  or  on  account 
of  this  bond. 

And  Provided  Lastly,  that  the  assured  or  superintend- 
ent of  the  work  must  give  to  said  surety  due  notice  before 
the  last  payment  under  the  contract  herein  referred  to  is 
made  to  the  principal ;  otherwise,  this  obligation  shall  be 
void  as  to  any  liability  of  the  surety  hereunder. 

In  Witness  Whereof,  the  said  principal  has  hereunto  set 
his  hand  and  seal,  and  the  said  surety  has  caused  these 
presents  to  be  signed  and  executed  by  its  attorney  in  fact 
at  Portland,  Or.,  the  day  and  year  first  written  above." 

It  is  then  alleged  that  Higgins  commenced  the  erection 
of  the  building,  but  failed  to  pay  for  the  materials  used 
in  the  construction  thereof  when  the  several  claims  there- 
for matured,  and  about  October  20, 1902,  plaintiff  notified 
the  indemnity  company  of  his  neglect  in  this  respect, 
whereupon  the  company  informed  her  that  it  would  as- 
sume Higgins'  contract,  and  requested  her  to  make  to  it 
all  payments  of  money  due  or  accruing  to  him  under  the 
agreement;  that  in  pursuance  of  such  demand  plaintiff 
thereafter  made  all  payments  of  money  due  Higgins  under 
the  contract  to  the  corporation,  which  assumed  full  con- 


14  AusPLUND  V.  JEtva  Indemnity  Co.        [47  Or. 

trol  of  the  building  and  completed  it;  that  the  contract 
entered  into  with  Higgins  provided  that  the  last  payment 
due  him  thereunder  was  to  be  made  when  the  house  was 
completed  and  the  possession  thereof  delivered  to  plaintiff 
free  of  liens ;  that  after  the  indemnity  company  assumed 
such  control  and  received  the  money  due  under  the  con- 
tract it  permitted  certain  liens  for  materials  furnished  to 
be  used  in  the  erection  of  the  house  to  be  filed  in  the  office 
of  the  County  Clerk  of  Multnomah  County,  setting  out  a 
list  thereof,  and  stating  the  several  sums  demanded  by  the 
respective  lien  claimants.  It  is  also  alleged  that  suits  were 
duly  instituted  to  foreclose  such  liens,  and  before  the  day 
for  answering  the  several  complaints  therein  had  expired 
plaintiff  notified  the  indemnity  company  of  the  pendency 
of  such  suits,  and  requested  it  to  settle  or  defend  the  same ; 
that  such  proceedings  were  had  in  the  several  suits  that 
on  April  19,  1903,  decrees  were  rendered  therein  for  the 
sums  demanded  by  each  lien  claimant;  that  in  pursuance 
of  such  decrees  plaintiff's  real  property  was  offered  for 
sale,  to  prevent  which  she,  on  May  19,  1903,  was  com- 
pelled to  pay  $624.50,  the  sum  due,  no  part  of  which  has 
ever  been  repaid  to  her ;  and  '^that  plaintiff  had  no  means 
of  ascertaining  what  claims  for  material  furnished  and 
used  in  the  erection  of  said  residence  defendants  had 
failed  to  pay  until  she  was  served  with  the  summons  in 
said  suit,  and  thereafter  the  attorneys'  fees  and  costs  to 
which  said  lienors  became  entitled  could  only  be  deter- 
mined by  the  decrees  in  said  foreclosure  suit." 

The  defendant,  the  iEtna  Indemnity  Co.,  alone  answer- 
ing, denied  the  material  allegations  of  the  complaint,  and 
for  a  further  defense  averred  that  the  undertaking  in 
question  was  executed  without  consideration.  For  a  sec- 
ond defense  it  is  alleged  that  such  undertaking  provided 
that  suits  at  law  to  recover  any  sum  due  under  the  bond 
should  be  commenced  within  six  months  after  the  first 


July,  1905.]     AusPLUND  v.  jEtna  Indemnity  Co.  15 

breach  of  the  contract  in  question  ;  that  under  such  agree- 
ment Higgins  was  to  complete  plaintiff's  building  on  or 
before  November  1, 1902 ;  that  he  failed  to  comply  there- 
with, whereupon  a  breach  occurred  on  that  day;  and  that 
this  action  was  not  commenced  until  after  the  expiration 
of  more  than  six  months  from  November  1,  1902.  As  a 
third  defense,  it  is  averred  that  the  undertaking,  setting 
out  the  preamble  and  condition  clauses,  describes  the  only 
contract  to  which  the  indemnity  company  ever  became  a 
party;  that  Higgins  constructed  plaintiff's  house  in  every 
particular  as  specified,  except  that  it  was  not  completed 
on  the  day  prescribed ;  and  that  plaintiff  does  not  claim 
any  damage  on  account  of  such  delay.  For  a  fourth  de- 
fense it  is  alleged  that  the  indemnity  company  never  at 
any  time  purchased  or  ordered  any  material  for  or  used 
any  thereof  in  the  construction  of  plaintiff's  house.  And 
as  a  fifth  defense  it  is  stated  that  this  action  was  not  com- 
menced until  after  the  expiration  of  more  than  six  months 
after  each  of  such  liens  was  filed. 

A  demurrer  to  the  several  separate  defenses,  on  the 
ground  that  neither  of  them  stated  facts  sufficient  to  con- 
stitute a  defense  having  been  sustained,  a  trial  was  had 
without  a  jury,  the  court  making  findings  of  fact  in  ac- 
cordance with  the  allegations  of  the  complaint ;  and,  a 
judgment  having  been  given  thereon  for  the  sum  de- 
manded, the  iEtna  Indemnity  Co.  appeals.    Affirmbd. 

For  appellant  there  was  a  brief  over  the  name  of  Piatt 
&  Platt^  with  an  oral  argument  by  Mr,  Harrison  Qray  Piatt. 

For  respondent  there  was  a  brief  over  the  names  of 
Whitney  Lyon  Boise^  Waldemar  Seton^  and  John  T,  McKee^ 
with  an  oral  argument  by  Mr.  Boise  and  Mr.  McKee. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 
1.  The  contract  entered  into  between  Higgins  and  the 
plaintiff  is  not  specifically  set  out  in,  or  expressly  made  a 


16  AuspLUND  V.  ^Etna  Indemnity  Co.        [47  Or. 

part  of,  the  undertaking,  and  because  of  such  omission  it 
is  argued  by  appellant's  counsel  that  the  only  part  of  the 
agreement  the  performance  of  which  was  guaranteed  by 
the  indemnity  company  is  indicated  in  the  bond,  to  wit, 
that  Higgins  would  construct  for  plaintiff  a  frame  resi- 
dence conformable  to  the  drawings  and  specifications 
thereof,  and  that  he  fully  complied  with  this  stipulation ; 
that  the  parties  to  the  undertaking  plainly  omitted  there- 
from the  clause  in  Higgins'  contract  to  the  effect  that  he 
would,  at  his  own  expense,  furnish  all  material  used  in, 
and  supply  all  labor  employed  on,  plaintiff's  building,  and 
promptly  pay  therefor,  so  that  when  the  house  was  fin- 
ished no  liens  on  account  of  such  labor  or  material  could 
be  filed  against  the  property;  and  that  as  the  bond  in 
question  did  not  undertake  to  indemnify  plaintiff  against 
any  liability  she  might  incur  in  consequence  of  the  filing 
of  liens  against  her  real  property,  or  guaranty  the  perform- 
ance of  any  of  the  conditions  of  Higgins'  contract,  except 
such  as  were  incorporated  in  the  undertaking,  the  court 
erred  in  admitting  such  agreement  in  evidence. 

A  text-writer,  in  discussing  the  liability  incurred  under 
an  indemnity  undertaking,  says :  **If  the  main  contract  is 
broader  in  its  scope  than  the  limits  fixed  in  the  bond,  a 
reference  to  the  contract  will  only  incorporate  so  much  of 
the  same  as  is  within  the  limits  of  the  terms  of  the  bond": 
Stearns,  Law  of  Suretyship,  §  143.  This  author  further 
says :  '*In  general,  the  liability  upon  a  bond  is  limited  to  its 
recitals.  The  obligations  cannot  be  enlarged  or  restricted 
by  parol.  The  surety  is  entitled  not  only  to  the  protec- 
tion of  the  ordinary  rules  of  evidence  relating  to  written 
instruments,  but  to  the  additional  protection  of  the  stat- 
ute of  frauds,  whereby  no  action  can  be  maintained  upon 
a  promise  to  pay  the  debt  of  another  unless  the  promise 
is  in  writing.  ♦  ♦  Where  the  principal  and  the  obligee 
enter  into  an  agreement,  and  a  bond  is  given  to  secure  its 


July,  1905.]     AusPLUND  v.  ^Etna  Indemnity  Co.  17 

performance,  and  the  bond  recites  some  of  the  obligations 
of  the  main  contract,  but  noj;  all,  the  liability  under  the 
bond  will  be  limited  to  the  recitals,  where  the  contract  is 
not  incorporated  into  the  bond  by  reference":  Stearns, 
Law  of  Suretyship,  §  146. 

In  the  case  at  bar  it  will  be  remembered  that  the  pre- 
amble to  the  undertaking  states  when  the  contract  between 
the  plaintiff  and  Higgins  was  consummated,  describes  with 
particularity  the  real  property  upon  which  the  frame  resi- 
dence was  to  be  constructed,  and  specifies  when  the  build- 
ing was  to  have  been  completed.  The  stipulation  in  the 
bond  in  regard  to  the  uncertain  future  event  is  as  follows : 
"Now,  therefore,  the  consideration  of  the  foregoing  obli- 
gation is  such  that  if  the  said  principal  shall  well,  truly 
and  faithfully  comply  with  all  the  terms,  covenants  and 
conditions  of  said  contract  on  his  part  to  be  kept  and  per- 
formed according  to  its  tenor,  then  this  obligation  to  be 
void  ;  otherwise  to  remain  in  full  force  and  effect.''  If  the 
words  "substance  practically"  had  been  omitted  from  the 
preamble,  the  liability  of  the  indemnity  company  for  a 
breach  of  the  undertaking  might  probably  have  been 
limited  to  the  contract  purporting  to  have  been  set  out 
therein  ;  but,  having  made  use  of  these  words,  the  phrase 
"said  contract"  in  the  conditional  clause  undoubtedly  refers 
to  the  entire  agreement  entered  into  between  Higgins  and 
the  plaintiff,  and  not  to  the  import  thereof,  as  stated  in 
the  preamble  clause.  In  Oberbeck  v.  Mayer,  59  Mo.  App. 
289,  it  is  intimated  that  a  contract,  the  performance  of 
which  was  guaranteed  by  an  undertaking,  might  be  iden- 
tified by  the  date  specified  in  the  bond,  or  by  annexing 
thereto  the  agreement.  In  the  case  at  bar  the  date  of  the 
contract  and  the  description  of  its  subject-matter,  as  spec- 
ified in  the  undertaking,  are,  in  our  opinion,  sufficient  to 
identify  the  agreement;  and  reference  in  the  bond,  qual- 

47  Or.  — 2 


18  AusPLUND  V.  Mtna  Indemnity  Co.        [47  Or. 

ified  as  it  is  by  the  use  of  the  words  ^'substance  practically," 
is  adequate  to  incorporate  the  contract  into  the  undertak- 
ing, thereby  rendering  the  indemnity  company  liable  for 
a  breach  of  any  of  the  terms  of  the  agreement.  No  error 
was  committed  in  admitting  the  contract  in  evidence,  the 
important  clause  of  which  is  as  follows :  *'The  contractor 
shall  pay  for  all  labor  and  materials  promptly,  so  that^when 
the  contract  is  finished  no  liens  may  be  filed  against  the 
property  on  account  thereof." 

2.  It  is  maintained  by  appellant's  counsel  that  the  spe- 
cial period  of  limitation  as  to  the  time  within  which  a  suit 
should  have  been  instituted  against  the  indemnity  com- 
pany, as  provided  in  the  undertaking,  had  expired  when 
this  action  was  commenced,  and  hence  an  error  was  com- 
mitted in  sustaining  a  demurrer  to  the  answer.  It  is 
argued  by  plaintiff's  counsel,  however,  that  an  inspection 
of  the  complaint  discloses  that  the  alleged  period  of  spe- 
cial limitation  designated  in  the  undertaking  had  expired 
when  this  action  was  begun,  and  that,  as  no  demurrer  to 
the  complaint  was  interposed  on  that  ground,  the  error 
complained  of  was  waived.  One  of  the  grounds  of  de- 
murrer that  may  be  interposed  to  a  complaint  is  as  fol- 
lows :  "That  the  action  was  not  commenced  within  the 
time  limited  by  this  Code":  B.  &  C.  Comp.  §  68.  The  rule 
is  settled  in  this  State  that  where  it  appears  on  the  face  of 
a  complaint  that  the  action  was  not  commenced  within 
the  time  limited  by  the  Code  the  objection  must  be  taken 
by  demurrer,  and,  if  not  so  taken,  the  exception  on  that 
ground  is  waived  :  Spaur  v.  McBee,  19  Or.  76  (23  Pac.  818); 
Davis  V.  Davisy  20  Or.  78  (25  Pac.  140);  Hawkins  v.  Don- 
nerberg,  40  Or.  97  (66  Pac.  691,  908).  It  is  possible,  how- 
ever,  that  the  method  of  challenging  the  suflBciency  of  a 
complaint  by  a  demurrer  is  restricted  by  statute  to  the 
several  periods  of  limitation  regulated  by  the  Code,  and 
does  not  apply  to  a  special  limitation  agreed  upon  by  the 


July,  1905.]     AusPLUND  v,  ^Etna  Indemnity  Co.  19 

parties,  so  that  the  objection  that  the  action  was  not  com- 
menced within  six  months  from  the  first  breach  should 
have  been  taken,  as  it  was,  by  answer,  and  not  by  de- 
murrer. 

3.  However  that  may  be,  it  will  be  remembered  that  the 
complaint  alleges  facts  tending  to  excuse  plaintiff's  delay 
in  not  sooner  instituting  the  action,  and,  if  such  averment 
is  sufficient  in  law  for  that  purpose,  no  error  was  com- 
mitted in  sustaining  a  demurrer  to  the  separate  defenses, 
for  the  allegation  of  the  complaint  is  in  the  nature  of  a 
confession  and  avoidance,  admitting  that  the  time  speci- 
fied in  the  undertaking  had  run,  but  averring  facts  tend- 
ing to  show  a  waiver  of  the  limitation  prescribed.  This 
allegation  is  to  the  effect  that  the  ^tna  Indemnity  Co., 
in  pursuance  of  plaintiff's  notice  that  Higgins  was  not 
promptly  paying  for  all  the  materials  used  in  her  build- 
ing, **assumed  full  and  complete  control  over  the  carrying 
out  of  said  contract  and  the  completion  of  said  residence," 
and  that  plaintiff  thereafter  made  to  it  the  payments  be- 
coming due  under  the  contract.  These  averments  were 
denied  in  the  answer,  and  on  the  issue  thus  framed  the 
court  found  the  facts  as  alleged  in  the  complaint. 

4.  Though  the  contractual  relation  of  a  corporate  sure- 
tyship to  indemnify  a  party  against  loss  occasioned  by  its 
principal's  breach  of  an  agreement  is  precisely  the  same 
as  if  the  contract  had  been  signed  by  a  private  party  with- 
out compensation,  the  agreement  is  nevertheless  like  an 
insurance  contract,  in  that  it  offers  remuneration  for  dam- 
ages caused  by  negligence,  bad  faith,  and  the  breach  of 
an  agreement:  Stearns,  Law  of  Suretyship,  §  250.  The 
principle  thus  announced  would  probably  allow  a  corpo- 
ration organized  to  furnish  indemnity  for  a  consideration 
to  invoke  the  rule  applicable  to  a  private  surety,  who,  for 
the  accommodation  of  a  friend,  voluntarily  guaranteed 
the  performance  of  the  terms  of  his  agreement.    If  such 


20  AUSPLUND  V.  ^TNA  INDEMNITY  Co.  [47  Or. 

private  surety,  however,  becomes  subrogated  to  the  rights 
of  his  principal  in  the  undertaking,  to  which  he  is  a  party, 
because  of  the  latter's  failure  to  keep  his  agreement,  he 
ought  to  be  subjected  to  all  the  liabilities  assumed  by  his 
principal,  regardless  of  the  original  contractual  relation. 
In  other  words,  a  corporation  becoming  a  surety  may,  like 
a  private  surety,  by  permitting  its  principal  to  make  such 
default  as  he  pleases,  insist  upon  its  strict  legal  right,  and 
in  an  action  to  enforce  its  liability  legally  interpose  any 
defense  that  a  private  surety  may  invoke  under  the  same 
circumstances;  but  when  a  surety,  either  corporate  or 
individual,  in  pursuance  of  the  terms  of  an  undertaking, 
^'assumes"  the  performance  of  the  principal's  contract, 
such  surety,  by  being  subrogated  to  the  rights  of  the  prin- 
cipal thereunder,  must  necessarily  become  subject  to  all 
his  liabilities. 

5.  The  complaint  alleges  that  after  the  indemnity  com- 
pany assumed  the  performance  of  the  contract  the  plain- 
tiff paid  to  it  the  sums  of  money  becoming  due  to  Higgins 
under  the  agreement.  One  of  the  terms  of  such  agree- 
ment is  that  Higgins  should  promptly  pay  for  all  material 
used  in  plaintiff's  building,.so  that  when  it  was  completed 
no  liens  could  be  filed  agaiiist  the  property.  In  the  lower 
court,  when  plaintiff  had  introduced  her  testimony  and 
rested,  appellant's  counsel  moved  for  a  judgment  of  non- 
suit, which  having  been  denied,  and  an  exception  saved, 
the  court  found  that  the  indemnity  company  ^'assumed" 
Higgins'  contract,  and  it  is  contended  that  such  finding 
is  unsupported  by  the  evidence.  The  bill  of  exceptions 
does  not  purport  to  contain  all  the  testimony  given  at  the 
trial  prior  to  the  interposition  of  the  motion  last  men- 
tioned, and,  in  the  absence  of  the  court's  certificate  that 
all  such  testimony  is  incorporated  in  the  transcript,  it 
will  be  assumed  that  the  evidence  was  sufiicient  to  uphold 
the  findings  made. 


July,  1905.]    AuspLUND  v.  Mtna  Indemnity  Co.  21 

6.  This  brings  us  to  a  consideration  of  the  question 
whether  or  not  such  findings  of  fact,  based  on  a  material 
issue,  support  the  judgment  rendered,  notwithstanding 
the  action  was  not  commenced  to  recover  the  damages 
sustained  within  the  time  specified  in  the  undertaking. 
In  Stout  V.  City  Fire  Ins.  Co,,  12  Iowa,  371  (79  Am.  Dec. 
539),  an  interest  in  real  property,  consisting  of  a  me- 
chanic's lien,  was  insured  under  a  policy  which  provided 
that  no  action  could  be  maintained  against  the  insurer 
unless  it  was  commenced  within  twelve  months  after  a 
loss  of  such  property  by  fire.  The  property  having  been 
so  destroyed,  it  was  held  that  proof  of  loss  could  not  be 
made  until  the  lien  was  established  by  a  decree  of  fore- 
closure, and  that  the  stipulation  in  the  policy  prescribing 
a  special  limitation  was  inoperative.  In  deciding  the  case, 
Mr.  Justice  Baldwin,  speaking  for  the  court,  says;  "The 
point  once  settled  that  the  interest  insured  was  a  me- 
chanic's lien,  and  the  conditions  of  the  policy  such  that  the 
assured  or  his  assignee  is  required,  before  the  commence- 
ment of  his  suit  on  the  policy,  to  prove  to  the  company 
the  value  of  the  interest  that  he  may  have  in  the  building 
insured,  and  if  this  cannot  be  done  in  the  ordinary  pro- 
ceedings in  courts  necessary  to  be  pursued,  or  if  such 
proof  cannot  be  made  in  a  legitimate  way  within  one  year 
after  loss,  then  this  condition  requiring  suit  to  be  com- 
menced within  one  year  is  rendered  inoperative  by  the 
parties  themselves."  In  Longhurst  v.  Star  Ins.  Co.,  19 
Iowa,  365,  in  a  suit  on  an  insurance  policy  given  as  in- 
demnity against  loss  by  fire  of  property  subject  to  a  me- 
chanic's lien,  it  was  held  to  be  competent  for  the  parties 
to  provide  for  a  special  limitation  within  which  an  action 
on  the  policy^  might  be  maintained  after  a  loss ;  but  such 
condition  would  not  be  enforced  when  so  necessarily  in- 
consistent with  the  nature  of  the  interest  insured  as  to 
render  a  recovery  unobtainable  by  the  exercise  of  due 


22  AUSPLUND  v.  iETNA  INDEMNITY  Co.  [47  Or. 

diligence.  "If,"  says  Mr.  Justice  Harlan  in  Thompson 
V.  Phenix  Ins.  Co,,  136  U.  S-  287  (10  Sup.  Ct.  1019,  34 
L.  Ed.  408),  in  referring  to  the  delay  in  bringing  an 
action  on  an  insurance  policy  within  the  time  agreed  upon 
by  the  parties,  *'the  failure  of  the  plaintiff  to  sue  within 
the  time  prescribed  by  the  policy,  computing  the  time 
from  the  date  of  the  fire,  was  due  to  the  conduct  of  the 
company,  it  cannot  avail  itself  of  the  limitation  of  twelve 
months.''  The  parties  to  a  contract  may  stipulate  that 
an  action  for  a  breach  of  an  agreement  must  be  brought 
within  a  certain  period,  and,  if  such  limitation  is  reason- 
able, it  will  be  upheld:   1  Wood,  Lim.  (2  ed.)  §  42. 

7.  When  plaintiff  paid  to  the  indemnity  company  the 
money  due  Higgins  under  the  contract,  it  was  incumbent 
upon  the  corporation  promptly  to  pay  for  the  material 
used  in  the  construction  of  the  building;  but,  not  having 
done  so,  liens  were  filed  against  plaintiff's  property,  the 
just  amount  of  which  probably  could  not  have  been  de- 
termined until  such  liens  were  foreclosed.  Until  these 
decrees  were  rendered,  plaintiff  could  not  ascertain  in 
what  sum  she  had  been  damaged,  and,  as  these  liens 
were  not  foreclosed  until  more  than  six  months  after  the 
first  breach' had  occurred  in  the  performance  of  the  terms 
of  the  contract,  the  stipulation  in  the  undertaking  pre- 
scribing a  limitation  of  six  months  is  unreasonable,  and 
therefore  inoperative. 

8.  So,  too,  the  indemnity  company,  having  received 
from  plaintiff  the  money  due  under  the  contract,  but  failed 
promptly  to  pay  for  the  material  used  in  the  construction 
of  the  building,  and  allowed  liens  to  be  filed  against  the 
property,  thereby  waived  the  stipulation  in  the  under- 
taking limiting  the  time  within  which  an  action  should 
have  been  brought. 

From  these  considerations  it  follows  that  the  judgment 
should  be  affirmed,  and  it  is  so  ordered.         Affirmed. 


July,  1905.]     AusPLUND  v,  ^tna  Indemnity  Co.  23 

On  Petition  for  Rehearing. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

9.  A  petition  for  a  rehearing  having  been  filed,  defend- 
ant's counsel  insist  that  a  statement  in  the  opinion  an- 
nounced in  this  case,  that  the  bill  of  exceptions  did  not 
purport  to  contain  all  the  testimony  given  at  the  trial 
prior  to  the  interposition  of  a  motion  for  a  judgment  of 
nonsuit,  is  not  borne  out  by  the  record.  A  reexamina- 
tion of  the  transcript  shows  that  the  opinion  inadvertently 
refers  to  the  motion  for  a  nonsuit,  when  it  should  have 
specified  a  motion  for  findings  and  a  judgment  in  defend- 
ant's favor.  The  bill  of  exceptions  sets  out  certain  ex- 
hibits introduced  in  evidence  by  defendant,  and  then  con- 
tains the  following  recital : 

**That  this  was  all  the  testimony  offered  by  the  plaintiff 
to  sustain  the  allegations  of  her  complaint  and  of  the 
pleadings,  and  thereupon  the  iEtna  Indemnity  Company, 
acting  by  its  counsel,  moved  the  court  for  an  order  of 
nonsuit  as  follows  [stating  the  reasons  therefor].  The 
motion  for  a  nonsuit  is  denied.  Defendant  allowed  an 
exception. 

That  at  the  close  of  the  case,  no  more  testimony  having 
been  introduced  on  behalf  of  plaintiff,  the  defendant  moved 
for  findings  and  judgment  in  favor  of  defendant  the  iEtna 
Indemnity  Company  as  follows  [giving  the  grounds  relied 
upon].    The  motion  is  overruled.    Defendant  excepts. 

The  foregoing  bill  of  exceptions  is  hereby  settled  and 
allowed. 

Arthur  L.  Frazer,  Judge." 

The  statement  in  the  bill  of  exceptions,  after  the  order 
overruling  the  motion  for  a  nonsuit,  **that  at  the  close  of 
the  case,  no  more  testimony  having  been  introduced  on 
behalf  of  plaintiff,"  etc.,  does  not  negative  the  fact  that 
the  defendant  may  have  introduced  testimony  upon  which 
the  findings  are  based. 


48 


24  SoRENsoN  V.  Oregon  Power  Co.  [47  Or. 

We  adhere  to  the  assumption  announced  in  the  forn^er 
opinion,  which  is  corrected  only  in  respect  to  the  par- 
ticular motion  intended,  and  a  rehearing  is  denied. 

Affirmed:  Rehearing  Denied. 


Arig^aed  12  July,  decided  16  Augrust,  rehearingr  denied  4  December,  1906. 
L^     ^  80BEK80K  u.  OBEOOK  POWEB  GO. 


82  Pac.  10. 

Master  and  Servant  —  Injury    to    Employbb  —  Responsibiltty  of 
Master  for  Negligence  of  Vice  Principal. 

1.  Under  Laws  1908,  p.  20,  making  railroad  companies  liable  for  Injuries  to 
employees  resulting  trora  the  wrongful  act  of  an  agent  or  officer  superior  to  tbe 
employee  injured,  a  railroad  company  is  responsible  to  a  common  laborer  in  a 
construction  gang  for  tbe  negligence  of  the  foreman  having  charge  of  the  gang 
and  control  of  the  conduct  and  services  of  the  employees  therein! 

Master  and  Servant  —  Contributory  Negligence  by  Obeying  Ob- 
DBRS  OF  Superior. 

2.  A  common  laborer  in  a  railroad  construction  crew,  superintended  by  a 
foreman  having  charge  of  both  the  laborers  and  the  operatives  of  a  ballast  train, 
has  a  right  to  assume  that  tbe  foreman  will  not  needlessly  expose  him  to  danger, 
and  Is  not  guilty  of  contributory  negligence  in  going  between  the  oars  of  the 
train  to  couple  the  air  hose  in  obedience  to  the  foreman's  order,  without  notify- 
ing the  trainmen  of  his  action. 

Remitting  Part  of  Verdict  — New  Trial. 

3.  Where  the  trial  court  deems  the  damages  rendered  for  personal  injuries 
excessive,  it  may  overrule  a  motion  to  set  aside  the  verdict  on  condition  of  a 
remittitur  of  the  excess  over  what  it  deems  proper. 

Appeal  — Excessive  Damages  as  Ground  for  New  Trial. 

4.  The  refusal  of  the  trial  court  to  set  aside  a  verdict  and  grant  a  new  trial 
because  the  damages  allowed  were  excessive  is  not  reviewable. 

Damages  —  Personal  Injuries  — Excessive  Verdict. 

5.  In  an  action  fur  injuries  to  a  common  laborer,  whose  leg  was  crushed  so 
that  it  had  to  be  amputated  below  the  knee,  a  verdict  for  916,000,  as  reduced  by 
the  trial  court  to  19,450,  is  not  so  excessive  as  to  plainly  show  bias  or  prejudice, 
and  will  not  be  disturbed  on  appeal. 

Interest  — Unliquidated  Damages, 

6.  Under  B.  <&  C.  Comp.  g  4695,  defining  the  rate  of  interest  "on  Judgments 
and  decrees  for  the  payment  of  money,"  Interest  on  unliquidated  damages  aris- 
ing out  of  a  tort  does  not  run  until  Judgment. 

Trial  — Discharge  of  Jury  — Appearance  of  Prejudice. 

7.  Tlie  trial  court  should  release  a  Jury  from  consideration  of  a  case  when  it 
is  made  to  appear  that  by  reason  of  facts  existing  at  the  time  the  Jury  was  im- 
paneled, but  unlcnown  to  the  court,  or  facts  occurring  afterwards,  members  of 
the  Jury  arc  subject  to  such  bias  or  prejudice  as  not  to  stand  impartially  between 
the  parties. 


Aug.  1905.]     SoRSNBON  v.  Orbgon  Power  Co.  25 

AppBAii— Right  to  Modify  and  Affirm  Judgment  at  Law. 

8.  In  a  law  action  the  supreme  court  may  modify  a  Judgment  when  the  excess 
is  apparent  and  ascertainable  ftom  the  record,  and  afBrm  the  Judgment  as  mod- 
ified. 

From  Multnomah :  Alfred  F.  Sears,  Jr.,  Judge. 

Statement  by  Mr.  Justice  Bean. 

This  is  an  action  by  Andrew  Sorenson  against  the  Ore- 
gon Water  Power  &  Railway  Co.  to  recover  damages  for 
a  personal  injury  received  by  the  plaintiff  through  the 
alleged  negligence  of  the  defendant.  The  plaintiff  is  a 
common  laborer,  and  was  one  of  a  construction  crew  or 
gang  of  the  defendant  under  the  charge  and  supervision 
of  one  George  Adams,  engaged  in  repairing  its  roadbed. 
The  construction  outfit  consisted  of  a  motor  and  ballast  or 
gravel  cars,  operated  by  a  motorman,  a  conductor,  a  brake- 
man,  and  three  or  four  laborers,  who  loaded  and  unloaded 
the  cars.  All  the  employees  were  under  the  direct  super- 
vision of  Adams,  and  he  had  a  right  to  direct  and  control 
their  services  and  the  places  where  they  should  work.  On 
the  morning  of  the  accident  from  8  to  12  of  the  gravel  or 
ballast  cars  were  standing  on  a  side  track  at  Lents.  They 
were  not  coupled  together  in  one  train,  but  were  in  three 
sections.  Adams  directed  that  three  of  the  cars,  which 
were  loaded,  and  at  the  west  end  of  the  switch,  should  be 
taken  to  a  point  east  of  the  station  to  be  unloaded.  This 
necessitated  the  coupling  of  the  cars  into  one  train,  taking 
them  all  out  on  to  the  main  track,  there  leaving  the  loaded 
cars,  and  returning  the  empties  to  the  switch.  To  do  this 
the  motor  backed  in  on  the  east  end  of  the  switch,  and 
while  the  conductor  was  coupling  up  the  forward  cars 
Adams  ordered  plaintiff,  without  notifying  the  motorman 
or  the  conductor,  to  go  in  between  the  two  rear  cars  on 
the  side  opposite  from  and  out  of  view  of  the  conductor 
and  couple  the  air  hose,  at  the  same  time  ordering  some 
of  the  other  employees  to  loosen  the  brakes  on  the  cars  in 
front  o1  those  between  which  he  had  ordered  the  plaintiff. 


26  SoRKNsoN  v.  Oregon  Power  Co.  [47  Or. 

While  obeying  this  order,  the  cars  in  front  were  suddenly 
backed  down  against  those  between  which  he  was  work- 
ing, throwing  him  to  the  ground,  and  crushing  his  leg  so 
that  it  had  to  be  amputated  below  the  knee.  This  action 
is  brought  to  recover  damages  for  the  injury  thus  sus- 
tained. The  theory  of  the  plaintiff  is  that  it  was  the  duty 
of  Adams,  after  he  had  ordered  plaintiff  in  between  the 
cars  to  couple  the  air  hose,  to  see  that  the  motorman  and 
the  conductor  were  notified  of  that  fact,  so  that  no  force 
would  be  suddenly  applied  to  the  cars  between  which  he 
was  working,  to  his  injury;  and  that  Adams  failed  and 
neglected  to  perform  such  duty,  by  reason  of  which  the 
injury  occurred.  The  defendant's  contention  is  that  the 
plaintiff  is  guilty  of  contributory  negligence  in  obeying 
the  orders  of  Adams  and  in  going  between  the  cars  with- 
out himself  notifying  the  operatives  of  the  train  or  plac- 
ing himself  in  communication  with  them.  The  plaintiff 
had  a  verdict  for  $15,000,  but  it  was  reduced  by  the  trial 
court  to  $9,450,  and  judgment  rendered  for  that  amount, 
with  interest  from  the  date  of  the  verdict  to  the  date  of 
the  judgment.  The  defendant  appeals,  assigning  error  in 
overruling  its  motion  for  a  nonsuit,  in  refusing  to  set  aside 
the  verdict  because  excessive,  in  allowing  interest  thereon 
prior  to  the  entry  of  judgment,  and  in  refusing  to  dis- 
charge the  jury  on  account  of  the  bias  or  prejudice  of  a 
juror.  Modified  and  Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  Hogue 
&  Wilbur  and  William  T,  Muir,  with  an  oral  argument  by 
Mr,  Ralph  W.  Wilbur  and  Mr,  Muir^  to  this  effect. 

I.  Plaintiff  was  aware  of  all  the  conditions  under  which 
he  was  working  at  the  time  of  the  accident.  He  was  a 
competent  employee,  yet  made  no  effort  to  protect  him- 
self by  notifying  any  person  in  charge  of  the  tr^rin  of  his 
dangerous  position.    Therein  he  was  guilty  of  contributory 


Aug.  1905.]      SoRBNsoN  V.  Oregon  Power  Co.  27 

negligence  and  cannot  recover:  Alabama,  0,  S.  R.  Co.  v. 
Roach,  110  Ala.  266  (20  So.  132);  Alabama,  0.  S.  R.  Co. 
V.  Roach,  116  Ala.  360  (23  So.  52);  Southern  Pac.  R,  Co,  v. 
Pool,  160  U.  S.  438  (16  Sup.  Ct.  338);  Hnlien  v.  Chicago  & 
N,  W,  Ry.  Co.,  107  Wis.  122  (82  N.  W.  710);  Spencer  v.  Ohio 
&  M.  Ry,  Co.,  130  Ind.  181  (29  N.  E.  415);  Atchison  Ry.  Co. 
V.  Alsdurf,  47  111.  App.  204;  Atchison  Ry.  Co.  v.  Alsdurf,  56 
111.  App.  578;  Thoman  v.  Chicago  &N.  W.  Ry.  Co.,  92  Iowa, 
196-199  (60  N.  W.  612) ;  Norfolk  &  W.  Ry.  Co.  v.  Graham, 
96  Va.  430  (31  S.  E.  604);  Lumpkin  v.  Southern  Ry.  Co.,  99 
Ga.  Ill  (24  S.  E.  963);  Whitcomb  v.  McNulty,  105  Fed.  863; 
Cleary  v.  Dakota  Packing  Co.,  71  Minn.  150, 155;  Jenkinsy. 
Mahopac,  10  N.  Y.  Supp.  484;  Lovejoy  v.  Boston  &  L.  R.  Co., 
125  Mass.  79,  82  (28  Am.  Rep.  206);  Whitmore  v.  Boston  & 
M.  Ry.  Co.,  150  Mass.  477  (23  N.  E.  220);  Coombs  v.  Fitch- 
burg  Ry.  Co.,  156  Mass.  200  (30  N.  E.  1140);.  Perry  v.  Old 
Colony  Ry.  Co.,  164  Mass.  296,  300  (41  N.  E.  289);  Caron  v. 
Boston  &  A.  Ry.  Co.,  164  Mass.  529  (42  N.  E.  112);  McLean 
V.  Chemical  Paper  Co.,  165  Mass.  5  (42  N.  E.  330);  Nihill  v. 
New  York,  N.  H.  &  H.  R.  Co.,  167  Mass.  52  (44  N.  E.  1075); 
Hallihan  v.  Hannibal  Ry.  Co.,  71  Mo.  117, 118;  Whitaker  v. 
Coombs,  14  111.  App.  498;  Wormell  v.  Maine  Cent.  Ry.  Co., 
79  Me.  397,  403  (1  Am.  St.  Rep.  131,  10  Atl.  49);  O'Don- 
nell  V.  Navigation  Co.,  49  App.  Div.  408;  Employer's  Lia- 
bility (Dresser),  348. 

II.  The  risk  was  obvious  and  known  to  the  plaintiff. 
A  servant  must  exercise  care  for  his  own  safety :  Stager  v. 
Troy  Laundry  Co.,  38  Or.  480,  485  (63  Pac.  645,  53  L.  R.  A. 
459);  Tucker  v.  Northern  Term.  Co.,  41  Or.  82,  89  (68  Pac. 
426, 11  Am.  Neg.  Rep.  629,  27  Am.  &  Eng.  R.  R.  Cas.  N.  S. 
166);  Perry  v.  Old  Colony  Ry.  Co.,  164  Mass.  296-300  (41 
N.  E.  289);  Coombs  v.  Fitchburg  Ry.  Co.,  156  Mass.  200  (30 
N.  E.  1140);  Wormell  v.  Maine  Cent.  hy.  Co.,  79  Me.  397 
(1  Am.  St.  Rep.  321,  10  Atl.  49);  Aerkfetz  v.  Humphreys, 
145  U.  8.  418-420  (12  Sup.  Ct.  835);  Chicago  v.  Kane,  50 


28  SoRBNsoN  V.  Oregon  Power  Co.  [47  Or. 

111.  App.  100;  Cole  v.  Chicago,  N,  W,  Ry,  Co.,  71  Wis.  114 
(5  Am.  St.  Rep.  201,  37  N.  W.  84). 

III.  If  the  verdict  is  the  result  of  passion  and  prejudice 
it  should  be  set  aside  and  not  a  certain  portion  of  it  re- 
mitted; Adcock  V.  Oregon  R.  Co.,  45  Or.  173  (77  Pac.  78); 
Bailey  v.  Rome  Ry.  Co.,  80  Hun,  7;  Kroener  v.  Chicago,  M.  & 
Si.  P.  R.  Co.,  88  Iowa,  16  (55  N.  W.  28). 

IV.  The  damages  allowed  by  the  jury  were  excessive. 
No  judgment  has  been  found  where  a  verdict  of  $15,000 
has  been  allowed  to  stand  in  the  case  of  a  male  adult  who 
has  lost  a  leg  below  the  knee  and  suffering  no  other  injury: 
TheWm.  Branfoot,  48  Fed.  916;  Wood  v.  Louisville  Ry.  Co., 
88  Fed.  44;  Norria  v.  Ry  Co.,  68  Hun,  39;  Bailey  v.  Rome 
Ry.  Co.,  80  Hun,  7;  Kroener  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 
88  Iowa,  16,  26  (55  N.  W.  28);  Stucke  v.  Orleans  Ry.  Co., 
50  La.  Ann.  172,  205  (23  So.  342);  Budge  v.  Morgan's  L.  & 
T.  S.  Co.,  108  La.  Ann.  346  (32  So.  535). 

V.  The  court  erred  in  allowing  interest  on  this  verdict, 
or  in  allowing  interest  to  run  before  the  judgment  was 
entered,  as  interest  should  not  be  allowed  until  the  amount 
of  the  judgment  is  made  certain:  B.  &  C.  Comp.  §  4595; 
Hawley  v.  Dawson,  16  Or.  344  (18  Pac.  592);  Pengra  v. 
Wheeler,  24  Or.  532,  535  (34  Pac.  354,  21  L.  R.  A.  762); 
Smith  V.  Turner,  33  Or.  379  (54  Pac.  166);  Hawley  v.  Barker, 
5  Colo.  118;  Cody  y.Filley,5Go\o.  124;  Blickenstaff  v.  Per- 
rin,  105  Ind.  522,  527  (55  Am.  Rep.  222);  Shepherd  v. 
hrenton,  20  Iowa,  41;  Kelsey  v.  Murphy,  30  Pa.  St.  340; 
Fowler  v.  Baltimore  &  0.  Ry.  Co.,  18  W.  Va.  579. 

It  was  improper  for  the  trial  court  to  compel  the  de- 
fendant to  try  this  case  with  the  jury  having  the  bias  and 
prejudice  shown  by  the  juror  J.  E.  Simmons.  At  the  time 
the  said  juror  exhibited  his  prejudices  objection  was  made 
to  proceeding  further  with  the  trial  and  an  exception  was 
taken.  The  allowing  of  a  motion  of  this  character  is  in  the 
discretion  of  the  court,  but  the  court  should  be  very  care- 


Aug.  1905.]      SoRKNSON  V.  Oregon  Power  Co.  29 

ful  to  see  that  the  defendant  is  protected,  and  that  its 
rights  are  not  tried  by  jurors,  or  any  of  them,  who  are 
subject  to  bias  or  prejudice,  so  that  they  cannot  try  the 
matter  impartially,  and  that  even  though  the  fact  that  the 
juror  has  a  prejudice  is  developed  after  he  has  been  c^c- 
cepted  as  a  juror :  Simmons  v.  United  States,  142  U.  S.  148 
(12  Sup.  Ct.  171). 

For  respondent  there  was  an  oral  argument  by  Jfr. 
Henry  E,  McOinn,  together  with  a  brief,  to  this  effect. 

1.  For  one  in  charge  of  a  train  to  order  a  brakeman  to 
go  between  two  of  the  cars  to  couple  the  air-hose,  and  then 
to  start  the  train  without  giving  him  any  warning,  is  neg- 
ligence, for  which  the  railroad  company  is  liable  if  the 
brakeman,  in  consequence,  is  injured :  Terre  Haute  &  I.  R, 
Co.  V.  Rittenhouse,  28  Ind.  App.  633  (62  N.  E.  295);  Bows 
V.  New  York,  N.  H  &  H.  R.  R,  Co,,  181  Mass.  89  (62  N.  E. 
949);  Carroll  v.  New  York,  N,  H.  &  H.  R.  iJ.  Co.,  182  Mass. 
237  (65  N.E.  69);  Brady  v.  New  York,  N.  H&H  R.  R.  Co,, 
184  Mass.  225  (68  N.  E.  227);  Tibbs  v.  Alabama  Great  8.R. 
Co,,  111  Ala.  449  (19  So.  969);  Missouri,  K,  &  T,  Ry.  Co, 
v.  Crane,  13  Tex.  Civ.  App.  426  (35  S.  W.  797);  Galveston, 
H,  &  S.  A,  R,  Co,  V.  Courtney,  30  Tex.  Civ.  App.  544,547 
(71  S.  W.  307);  Pittsburg,  C,  C,  &  St.  L.  Ry,  Co,  v.  Hewitt, 
202  111.  28  (66  N.  E.  829);  Chicago  &  E,  I,  R.  Co.v.White, 
209  111.  124  (70  N.  E.  588);  Missouri,  K,  &  T.  Ry.  Co,  v. 
Gearhart,  81  S.  W.  325  (Tex.  Civ.  App.);  Louisana  W,  Ext, 
Co.  V.  Carstons,  19  Tex.  Civ.  App.  190  (47  S.  W.  36);  Texas 
&  Pac. Ry.  Co.  v. McCoy,  17  Tex.  Civ.  App. 494  (44  S.  W.  25); 
MissouriyK,  &  T.  Ry,  Co.  v. Hauer  (Tex.  Civ.  App.), 43  S.  W. 
1078;  Highland  Av,  &  B,  R.  Co,  v.  MiUer,  120  Ala.  535  (24 
So.  955);  Reno's  Employers' Liability  Acts  (2  ed.),  §§  127, 
250;  Woodward  Iron  Co.v,  Andrews,  114  Ala.  243-257  (21 
So.  441). 

2.  The  refusal  of  the  trial  court  to  set  the  verdict  of  the 
jury  aside  because  of  excessive  damages,  and  to  grant  a 


30  SoRENSON  V.  Oregon  Power  Co.  [47  Or. 

new  trial,  cannot  be  reviewed  by  this  court  on  appeal. 
This  court  has  repeatedly  so  held  :  State  v.  Fitzhugh,  2  Or. 
227;  State  v.  Wilson,  6  Or.  429;  Hallock  v.  Portland,  8  Or.  29; 
State  V.  McDonald,  8  Or.  113;  State  v.  Drake,  11  Or.  396  (4 
Pac.  1204);  Kearney  v.  Snodgrass,  12  Or.  311  (7  Pac.  309); 
Nelson  v.  Oregon  R,  &  Nav.  Co.,  13  Or.  141  (9  Pac.  321); 
McQuaid  v.  Portland  &  V.  R,  Co.,  19  Or.  535  (25  Pac.  26); 
Coos  Bay  Nav.  Co.  v.  Endicott,  34  Or.  573,578  (57  Pac.  61). 

3.  The  verdict  of  the  jury  was  by  trial  court  reduced 
from  $15,000  to  $9,450.  The  plaintiff  has  some  cause  to 
complain  ;  the  defendant  certainly  has  none.  In  no  other 
class  of  cases  does  the  amount  of  damages  rest  necessarily 
so  largely  in  the  discretion  of  the  jury  as  in  those  involv- 
ing a  recovery  for  the  infliction  of  personal  injuries,  and 
the  courts  are  very  loath  to  interfere  with  a  verdict  in  such 
cases  in  the  absence  of  plain  evidence  that  the  jury  have 
abused  the  discretion  vested  in  them  :  Coleman  v.  South- 
wick,9  Johns.  45, 48  (6  Am.  Dec. 253);  Southwick  v.  Stevens, 
10  Johns.  443,  446;  3  Sedgwick,  Damages,  §  1321;  1  Suth- 
erland, Damages,  810;  3  Sutherland,  Damages,  730. 

In  the  following  cases  verdicts  have  been  considered 
with  reference  to  the  amount  of  recovery:  Smith  w^Whit- 
tier  ($30,000),  95  Cal.  281,  298  (30  Pac.  529);  Morgan  v. 
Southern  Pac.  Co.  ($15,000),  95  Cal.  501,508(30  Pac.  601); 
Roth  V.  Union  Depot  Co.  ($15,000),  13  Wash.  525,  546  (43 
Pac.  641,  31  L.  R.  A.  855);  Tilly  v.  New  York  &  T.  S.  Co. 
($15,000),  162  N.  Y.  614  (57  N.  E.  1127);  Kalfur  v.  Broad- 
way  Ferry  R.R.  Co.  ($15,000),  161  N.Y.660  (57  N.  E.1113); 
Chicago  City  Ry.  Co.  v.  Wilcox  ($15,000),  138  111.  370  (27 
N.  E.  899,  27  L.  R.  A.  76);  Southern  Ry.  Co.  v.  Crowder 
($15,000),  130  Ala.  256,  265  (30  So.  592);  Chicago,  etc.  R. 
Co.  V.  Fisher  ($16,000),  38  111.  App.  33,  43;  Williamson  v. 
Brooklyn  H.  R.  Co.  ($22,500),  53  App.  Div.  399;  Stewart  v. 
Long  Island  R.  Co.  ($18,000),  54  App.  Div.  623;  Chicago  & 
G.  T.  Ry.  Co.  V.  Spurney  ($15,000),  97  111.  App.  570;  Gal- 


Aug.  1905.]      SoRENsoK  V.  Oregon  Power  Co.  31 

vestouy  JET.  &  N,  Ry.  w.  Newport  ($15,000),  26  Tex.  Civ.  App. 
583,  589  (65  S.  W.  657);  San  Antonio  &  A,  P.  Ry.  Co,  v. 
ConneM ($16,000),  27  Tex.  Civ.  App.  533, 536  (66  S.  W.  246); 
Illinois  Cent.  R.  Co.  v.  Cheek  ($14,000),  152  Ind.  663,  678 
(53  N.  E.  641);  Terre  Haute  &  L  R.  Co.  v.  Sheeks  ($15,000), 
155  Ind.  74,  100  (56  N.  E.  434);  Galveston,  H.  &  S.  Ry.  Co. 
v.  Hynes  ($18,000),  21  Tex.  Civ.  App.  34  (50  S.  W.  624); 

Galveston,  H.  &  S.  Ry.  Co.  v.  Nass  ($20,000), Tex.  Civ. 

App (57  S.  W.  910);  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 

Cooper  ($15,000),  2  Tex.  Civ.  App.  43,  52  (20  S.  W.  990); 
Galveston, H.  &  S.A.Ry.  Co.w.  .46661/ ($16,000),  29  Tex.  Civ. 
App.  211,  214(68  8.  W.  293). 

4.  Interest  is  properly  collectible  where  the  plaintiff 
has  been  delayed  in  recovering  his  judgment  by  reason 
of  a  motion  for  a  new  trial  filed  by  the  defendant :  Griffith 
V.  Baltimore  &  0.  R.  Co.,  44  Fed.  574;  Weed  v.  Weed,  25 
Conn.  494;  Carson  v.  German  Ins.  Co.,  62. Iowa,  433,  441 
(17  N.  W.  650);  Winthrop  v.  Curtis,  4  Me.  297;  Vail  v.  Nick- 
erson,  6  Mass.  261;  Erie  Ry.  Co.  v.  Ackerson,  33  N.  J.  L.  33, 
36;  Bull  V.  Ketchum,  2  Denio,  188,  190;  Irvin  v.  Hazleton, 
37  Pa.  465. 

5.  The  questions  asked  by  the  juror  Simmons  of  the 
witness  George  Adams  were  not  so  improper  as  to  warrant 
the  granting  of  a  new  trial :  Simmons  v.  United  States,  142 
U.  S.  148  (12  Sup.  Ct.  171);  Chicago  &  E.  R.  Co.y.  Holland, 
122  111.  461,  469  (13  N.  E.  145);  Chicago,  M.  &  St.  P.  Ry. 
Co.  v.  Harper,  128  111.  384  (25  N.  E.  561);  McAllister  v.  Sih- 
ley,  2b  Me.  474,  488;  Chalmers  w.  Whittemore,  22  Minn.  305, 
307;  Jordan  v.  Florida,  22  Fla.  528,  531;  Carthaus  v.  StaU, 
78  Wis.  560,  567  (47  N.  W.  629). 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

1.  The  jury  found  from  the  evidence  that  the  plaintiff 
was  ordered  by  Adams  to  couple  the  air  hose,  and  that  he 
was  acting,  at  the  time  he  was  injured,  in  obedience  to 


32  SoRENBON  V.  Oregon  Power  Co.  [47  Or. 

such  order.  It  is  admitted  that  plaintiff  did  uot  warn  or 
notify  the  motorman  or  conductor  of  the  train  of  his  pres- 
ence between  the  cars.  The  single  question,  therefore,  on 
the  motion  for  nonsuit,  is  whether  he  was  guilty  of  con- 
tributory negligence  in  executing  the  order  of  Adams 
without  warning  the  motorman  or  conductor  of  his  action. 
.By  obeying  such  order  and  attempting  to  make  the  coup- 
ling, he  assumed  all  the  risks  ordinarily  incident  to  such 
service;  but  it  was  not,  in  our  opinion,  incumbent  upon 
him  to  advise  the  immediate  operators  of  the  train  of  the 
dangerous  position  in  which  he  had  been  put  by  the  orders 
of  his  superior.  He  had  a  right  to  act  upon  the  assump- 
tion that  Adams  would  perform  the  duties  and  responsi- 
bilities resting  upon  the  master,  and  not  needlessly  or 
carelessly  expose  him  to  danger  from  injury  by  the  sud- 
den moving  of  the  cars.  He  was  obeying  an  order  which 
required  prom.pt  and  immediate  execution,  and  had  a 
right  to  assume  that  Adams  would  use  due  care  not  to 
expose  him  to  unnecessary  danger.  It  is  claimed  that 
Adams  had  no  control  over  the  movements  of  the  cars, 
but  that  they  were  under  the  exclusive  management  of 
the  motorman  and  conductor,  and  that  plaintiff  was  aware 
of  that  fact.  The  evidence  is,  however,  that  all  the  em- 
ployees, both  those  engaged  in  the  operation  of  the  train 
and  in  other  work,  were  under  the  immediate  charge  and 
supervision  of  Adams,  and  took  their  orders  from  him. 
It  may  be  that  he  did  not  direct  the  motorman  and  con- 
ductor as  to  the  details  of  their  work,  or  give  signals,  or 
assume  the  immediate  charge  of  the  train ;  but  he  evi- 
dently had  a  right  to  exercise  the  authority  to  direct  what 
should  be  done  and  by  whom.  He  ordered  the  plaintiff 
to  go  in  between  the  cars  and  couple  up  the  air,  and  some 
of  the  other  employees  to  go  aboard  the  cars  and*  release 
the  brakes,  and  so  it  does  appear  that  he  in  fact  exercised 
some  authority  or  control  over  the  making  up  of  the  train. 


Aug.  1905.]      SoRBNsoN  V,  Oregon  Power  Co.  33 

For  the  purpose  of  directing  and  controlling  the  conduct 
and  services  of  the  various  employees  of  the  defendant 
under  his  charge  and  supervision  he  stood  in  the  place  of 
the  master,  and  for  his  negligence  the  master  is  respon- 
sible :   Laws,  1903,  p.  20. 

2.  It  was  undoubtedly  the  plaintiff's  duty  to  obey  the 
orders  of  Adams,  unless  obedience  would  have  involved 
a  risk  obviously  dangerous,  and  he  was  not,  we  think, 
guilty  of  contributory  negligence  in  not  notifying  the 
motorman  or  conductor  of  his  position  :  2  Current  Law, 
840 ;  Terre  Haute  &  I.  R.  Co.  v.  Rittenhouse,  28  Ind.  App. 
633  (62  N.  E.  295);  Malcolm  v.  Fuller,  152  Mass.  160  (25 
N.  E.  83).  This  is  not  a  case,  like  those  cited  by  the  de- 
fendant, where  a  car  repairer  or  a  locomotive  engineer 
went  under  a  car  or  locomotive  for  the  purpose  of  mak- 
ing repairs  without  putting  out  a  flag  or  signal,  and  was 
injured  by  another  car  being  backed  down  against  the 
one  he  was  engaged  in  repairing.  In  such  case  it  was 
negligence  for  the  injured  party  to  voluntarily  assume  a 
position  of  manifest  danger  without  guarding  against  in- 
jury. But  here  the  plaintiff  was  ordered  by  his  imme- 
diate superior  to  do  the  particular  act  in  which  he  was 
engaged  at  the  time  of  his  injury,  and  he  had  a  right  to 
assume  that  he  would  not  be  exposed,  in  so  doing,  to  the 
extraordinary  and  unusual  hazard  of  having  cars  sud- 
denly pushed  down  against  the  ones  between  which  he 
was  working  and  without  notice  or  warning  to  him. 

3.  The  damages  awarded  by  the  jury  were,  in  the  opinion 
of  the  trial  court,  excessive,  but  it  overruled  a  motion  to 
set  aside  the  verdict,  as  it  had  a  right  to  do  (Adcock  v. 
Oregon  R.  Co,y  45  Or.  173,  77  Pac.  78),  on  condition  that 
plaintiff  would  remit  all  in  excess  of  $9,450,  which  was 
done  accordingly. 

47  Or.  —  3 


34  SoRKNsoN  V.  Oregon  Power  Co.  [47  Or. 

4.  It  has  been  decided  that  the  refusal  of  a  trial  court 
to  set  aside  a  verdict  on  account  of  excessive  damages  can- 
not be  reviewed  on  appeal  (Nelson  v.  Oregon  R.  &  Nav.  Co,, 
13  Or.  141.  9  Pac.  321 ;  McQuaid  v.  Portland  &  Van.  R,  Co., 
19  Or.  535,  25  Pac.  26 ;  Coos  Bay  Nav.  Co,  v.  Endicott,  34 
Or.  573,  57  Pac.  61),  and  this,  it  seems,  is  the  general  rule 
on  the  subject  (see  cases  cited  2  Century  Digest,  §  1826), 
unless,  perhaps,  it  is  manifest  thatthe  verdict  was  the  result 
of  passion  or  prejudice. 

5.  We  cannot,  therefore,  disturb  the  verdict  as  reduced 
by  the  trial  court.  It  has  been  approved  by  that  court, 
and  is  not  so  excessive  as  to  show  plainly  that  it  was  the 
result  of  bias  or  prejudice. 

6.  The  court  was  in  error,  however,  in  allowing  interest 
on  the  verdict  from  its  date  to  the  rendition  of  judgment. 
In  the  absence  of  a  contract  to  pay  interest,  the  right  to 
exact  it  must  be  found  in  the  statute  (Rensselaer  Glass  Fac- 
tory V.  Reid,  5  Cow.  608),  and  the  statute  makes  no  provision 
for  interest  on  unliquidated  damages  arising  out  of  a  tort 
until  made  certain  by  judgment :  B.  &  C.  Comp.  §  4595 ; 
Hawley  v.  Dawson,  16  Or.  S44  (18  Pac.  592);  Hawky  v. 
Barker,  5  Colo.  118;  Kelsey  v.  Murphy,  30  Pa.  340. 

7.  During  the  trial  one  of  the  jurors  interrogated  a  wit- 
ness in  such  a  manner  as,  in  the  opinion  of  counsel  for 
defendant,  indicated  a  prejudiced  attitude  toward  the  de- 
fendant, and  he  thereupon  moved  the  court  to  discharge 
the  jury  from  the  further  consideration  of  the  case.  The 
motion  was  overruled,  the  court  holding  that  the  conduct 
of  the  juror,  was  not,  in  its  opinion,  such  as  indicated  bias 
or  prejudice.  It  needs  no  argument  or  citation  of  author- 
ity to  show  that  a  trial  court  should  release  a  jury  from  the 
consideration  of  a  case  when  it  is  made  to  appear  that  by 
reason  of  facts  existing  at  the  time  the  jury  was  impaneled, 
but  unknown  to  the  court,  or  facts  occurring  afterwards, 
members  of  the  jury  are  subject  to  such  bias  or  prejudice 


Aug.  1905.]     Horn  v.  United  Securities  Co.  35 

as  not  to  stand  impartially  between  the  parties.  Neither 
party  to  a  cause  has  a  right  to  a  corrupt  or  prejudiced  jury, 
and  the  court  should  immediately  discharge  a  jury  when 
the  cause  of  justice  would  otherwise  be  defeated.  But  in 
this  case  the  trial  judge,  who  observed  the  attitude  of  the 
juror  and  his  manner  of  asking  questions,  decided  that  his 
conduct  did  not  indicate  bias  or  prejudice,  and,  while  it 
was  somewhat  unusual,  there  is  not  enough  in  the  record 
to  justify  us  in  disturbing  the  findings. 

8.  The  judgment  will  be  modified  by  eliminating  the 
item  of  interest,  and  otherwise  affirmed. 

Modified  and  Affirmed. 


Arig^ued  19  July,  decided  15  Aug^ust,  1906. 
HOBK  V.  UNITED  8EGUBITIES  GO. 

81  Pac.  1009. 

V AC ATiifo  Judgment— Surprise,  Inadvertence  or  Excusable  Neg^ 
LECT— Discretion— Sufficiency  of  Showing. 

A  motion  to  vacate  a  Judgment  rendered  for  want  of  an  answer  on  the  ground 
of  mistake,  inadvertence,  and  excusable  neglect  is  addressed  to  the  sound  discre- 
tion of  the  trial  court,  which  cannot  be  disturbed  on  appeal  unless  manifestly 
abased.  For  example :  In  support  of  a  motion  to  vacate  a  J  udgment  rendered  on 
October  12  for  want  of  an  answer,  defendant's  counsel  showed  that  on  October  5 
he  forwarded  a  motion  to  strike  parts  of  the  complaint,  notifying  the  clerk  that 
he  desired  to  be  advised  of  the  decision;  that  on  October  10  the  clerk  notified 
counsel  that  the  motion  was  overruled,  which  letter  of  uotlflcation  was  not 
delivered  at  the  office  of  counsel  until  the  morning  of  the  13th,  at  which  time  he 
was  in  attendance  upon  court  in  another  county;  that  on  that  day  he  prepared 
and  transmitted  an  answer,  and  wrote  to  plalntlflTs  counsel  asking  him  as  a 
matter  of  courtesy  for  advice  as  to  the  proper  steps  to  be  taken  in  the  premises, 
to  which  plaintiff's  counsel  replied  that  he  had  obtained  Judgment.  Held,  that 
there  was  no  such  8\irpriHe,  inadvertence,  or  excusable  neglect  em  to  make  it  an 
abuije  of  discretion  for  the  court  to  refuse  to  vacate  the  Judgment. 

From  Douglas:  James  W.  Hamilton,  Judge. 

Statement  by  Mr.  Chief  Justice  Wolverton. 

This  is  an  action  by  William  Horn  against  the  United 
States  Mining,  Securities  &  Trust  Co.  On  June  9,  1904, 
plaintiff  filed  a  complaint  against  the  above-named  defend- 
ant, containing  three  counts,  to  which  the  defendant,  on 


36  Horn  v.  United  Securities  Co.         [47  Or. 

October  5,  interposed  a  motion  to  strike  out  parts  of  it. 
Afterwards,  on  October  10,  that  being  the  first  day  of  the 
regular  term  of  the  circuit  court  at  Roseburg,  the  motion 
was  called  up  by  plaintiff's  counsel,  and,  there  being  no 
further  appearance  in  behalf  of  defendant,  it  was  over- 
ruled. Two  days  later,  the  defendant  failing  further  to 
appear  or  otherwise  plead  to  the  complaint,  judgment  was 
rendered  for  plaintiff  for  want  of  an  answer.  Subsequently 
defendant  applied  to  the  court  for  a  vacation  of  the  judg- 
ment and  for  leave  to  answer  over,  and,  being  unsuccess- 
ful, brings  its  appeal.  Affirmed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr.  William  Mosby  La  Force. 

For  respondent  there  was  a  brief  over  the  names  of  John 
T.  Long  and  Ira  B.  Riddle,  with  an  oral  argument  by  Mr. 
Long. 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

Appellant  has  made  two  assignments  of  error.  One  per- 
tains to  the  overruling  of  the  motion  to  strike  out,  and  the 
other  is  with  reference  to  the  court's  refusal  to  vacate  the 
judgment  with  leave  to  answer  over.  The  former  was  not 
insisted  upon  in  the  argument,  doubtless  because  it  was 
deemed  frivolous,  and  without  merit,  as  it  really  is.  The 
latter  requires  consideration.  The  question  involved  is 
whether  the  court  abused  its  discretion  in  denying  the 
relief  sought.  The  excuse  suggested  why  there  was  no 
appearance  when  the  motion  was  disposed  of  and  the  judg- 
ment entered  for  want  of  an  answer  is  contained  in  the 
affidavit  of  counsel  for  appellant.  It  shows,  in  brief,  that 
counsel  forwarded  the  motion  to  strike  out  to  the  clerk 
October  5,  with  a  request  to  the  clerk  to  say  to  the  court 
when  the  motion  was  called  up  that  it  was  not  put  in  for 
delay,  and  that  counsel  desired  an  inspection  and  decision 
with  reference  to  it ;  that  counsel  desired  also  to  be  advised 
of  the  result  of  the  decision  ;  that  on  October  10  the  clerk 


Aug.  1905.]  Whblan  v  McMahak.  37 

notified  counsel  that  the  motion  was  overruled,  which 
letter  of  notification  was  not  delivered  at  the  office  of  coun- 
sel until  the  morning  of  the  13th,  at  which  time  he  was 
in  attendance  upon  the  court  in  Columbia  County ;  that 
on  that  day  counsel  prepared  an  answer,  sent  a  copy  of  it 
to  opposing  counsel,  and  the  original  to  the  clerk ;  that 
counsel  also  wrote  to  opposing  counsel,  and  requested  him, 
as  a  matter  of  professional  courtesy,  to  advise  him  as  to 
the  proper  steps  to  be  taken  by  the  affiant  in  the  premises, 
to  which  plaintiff's  counsel  replied  in  a  couple  of  days 
that  he  had  obtained  judgment  in  the  cause ;  that  affiant 
was  taken  by  surprise ;  and  that  the  judgment  was  given 
and  rendered  through  his  mistake,  inadvertence,  and  ex- 
cusable neglect.  The  motion  was  addressed  to  the  sound 
discretion  of  the  circuit  court,  and,  if  there  has  not  been  a 
manifest  abuse  of  it,  we  cannot  disturb  the  result:  White 
V.  Northwest  Stage  Co.^  5  Or.  99, 103;  Lovejoy  v.  Willamette 
Locks  Co.,  24  Or.  569,  (34  Pac.  660.)  The  showing  made 
indicates  quite  clearly  that  counsel  was  derelict  in  his 
attendance  upon  the  court  at  the  proper  time,  and  the 
reasons  advanced  for  his  dereliction  were  manifestly  insuf- 
ficient to  occasion  surprise,  nor  was  there  such  inad- 
vertence or  excusable  neglect  that  the  circuit  court  was 
required,  in  the  exercise  of  a  sound  discretion,  to  relieve 
against.  The  court  might  have  relieved  counsel  of  the 
situation,  but  it  was  not  an  abuse  of  discretion  not  to  do 
so.    The  judgment  will  be  affirmed.  Affirmed. 


Argaed  20  Jaly,  decided  28  August,  1906. 

82  Pac.  19.  I  47    179| 

EkiuiTr  Jurisdiction  to  Skt-Off  Judgm knts  —  Rkhedy  at  Law. 

1.  The  exercise  by  a  court  of  equity  of  Its  J  urlsdlctlon  to  set  off  one  J  udgmen  t 
against  another  depends  upon  the  inadequacy  of  the  remedy  at  law,  resulting 
fjrom  the  existence  of  some  supervening  equity,  such  as  Insolvency,  nonresi. 
denoe,  or  the  like.    The  mere  existence  of  cross-demands  Is  of  iuelf  InsutHclent. 


38  Whelan  v.  McMahan.  [47  Or. 

Setting  Off  Judgments  —  Insolvency  —  Need  of  Proof. 

2.  Where  Insolvency  is  alleged  as  a  ground  for  the  exercise  by  equity  of  its 
Jurisdiction  to  setoff  cross-Judgments,  the  allegation  is  material,  and  must  be 
sustained  by  proof,  in  order  to  entitle  the  applicant  therefor  to  relief. 

Appeal.  — Final  Obder  Entered  Without  Jurisdiction  of  Cause. 
8.  A  final  order  entered  In  a  case  wherein  the  court  is  without  Jurisdiction 
of  the  cause  of  suit  does  not  terminate  the  controversy,  but  is  appealable. 

From  Marion :    William  Galloway,  Judge. 

Statement  by  Mr.  Justice  Bean. 

This  is  a  suit  by  Walter  Whelan  against  L.  H.  McMahan 
and  another  for  a  decree  setting  off  a  judgment  for  $47 
and  costs,  recovered  by  the  plaintiff  against  the  defendant 
in  the  justice's  court  for  Salem  district,  against  two  judg- 
ments recovered  by  the  defendant  against  the  plaintiff  in 
the  circuit  court  for  Marion  County.  The  ground  of  equi- 
table jurisdiction,  as  alleged,  is  that  the  defendant  is  in- 
solvent and  has  no  property  out  of  which  the  judgment 
against  him  can  be  collected.  The  allegation  of  insolvency 
is  denied  by  the  answer,  and  defendant  pleads  aflSrmatively 
that  prior  to  the  commencement  of  this  suit  he  paidand 
discharged  the  judgment  against  him  in  the  justice's 
court.  The  plaintiff  had  decree  in  the  court  below,  and 
defendant  McMahan  appeals.  Reversed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Chaa.  L.  McNary  and  Mr,  Samuel  T,  Richardson, 

For  respondent  there  was  an  oral  argument  by  Mr.  John 
A,  Jeffrey, 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

1.  The  jurisdiction  to  set  off  one  judgment  against  an- 
other was  assumed  by  courts  of  equity  at  an  early  date, 
and  still  exits  (25  Am.  &  Eng.  Enc.  Law,  2  ed.,  610);  but 
its  exercise  depends  upon  the  inadequacy  of  the  remedy 
at  law.  It  is  only  when  there  is  some  supervening  equity, 
such  as  insolvency,  nonresidence,  or  the  like,  which  rend- 
ers the  interposition  of  the  court  necessary  to  protect  the 
rights  of  the  plaintiff  that  it  will  intervene  at  all.    The 


Aug.  1905.]  Whblan  v.  McMahan.  39 

mere  existence  of  cross-demands  is  not  sufficient :  25  Am. 
&  Eng.  Enc.  Law  (2  ed.),  543;  2  Story,  Equity  (10  ed.), 
§  1436;  1  High,  Injunctions  (3  ed.),  §  242;  Waterman,  Set- 
off (2  ed.),  §  445;  THbble  v.  Taul,  7  T.  B.  Mon.  458;  Has^ 
kins  V.  Jordan,  123  Cal.  157  (55  Pac.  786);  Whitehead  v. 
Jessup,  7  Colo.  App.  460  (43  Pac.  1042). 

2.  "If  both  parties  were  solvent,"  says  the  Supreme 
Court  of  Tennessee,  "so  that  both  debts  might  ultimately 
be  collected,  the  law  would  afford  adequate  relief,  and  no 
injustice  would  be  wrought  to  either  party.  The  one  could 
not  suffer  by  having  to  pay  his  own  debt  according  to  his 
contract,  if  he  could  ultimately  compel  the  other  to  pay 
his  debt  according  to  his  contract":  Nashville  Trust  Co,  v. 
Bank,  91  Tenn.  351  (18  S.  W.  822,  15  L.  R.  A.  710).  The 
insolvency  of  the  defendant  is  therefore  a  material  allega- 
tion of  the  complaint, and  must  be  sustained  by  the  proof, 
or  plaintiff  is  not  entitled  to  relief  in  equity  :  Hamilton  v. 
Van  Hook,  28  Tex.  302.  Now,  the  plaintiff  offered  no  evi- 
dence whatever  on  this  subject,  except  the  return  "Nulla 
bona"  on  an  execution  issued  on  the  judgment  in  his 
favor,  while  the  defendant  testified  that  he  was  the  owner 
in  his  own  right  of  an  undivided  one  half  interest  in  160 
acres  of  land,  worth  about  $9,000,  incumbered  for  only 
$2,000,  and  that  he  was  also  the  owner  of  notes  and  ac- 
counts of  the  value  of  $2,000.  This  evidence  stands  ab- 
solutely uncontradicted,  and  there  is  no  testimony  that 
defendant  is  indebted  in  any  sum  whatever,  unless  it  is 
the  amount  due  on  plaintiff's  judgment,  and  that  he  dis- 
putes, and  gave  evidence  tending  to  show  that  he  paid  the 
judgment  prior  to  the  commencement  of  this  suit.  The 
plaintiff,  therefore,  fails  in  his  proof,  and  does  not  show 
a  case  calling  for  equitable  relief. 

3.  It  is  suggested  that  there  is  no  real  controversy 
between  the  parties  on  this  appeal,  because  there  is  but 
two  dollars'  difference  between  the  amounts  due  on  their 


40  Gray  v.  Jones.  [47  Or. 

respective  judgments,  and  that  such  sum  was  paid  into 
court  at  the  time  the  decree  was  rendered,  and  the  court 
simply  set  off  one  judgment  against  the  other,  without 
taxing  costs  against  the  defendant.  But,  unless  the  court 
had  jurisdiction  to  hear  and  determine  the  cause  by  rea- 
son of  the  insolvency  of  the  defendant,  it  could  not  render 
a  decree  that  would  terminate  the  controversy  or  prevent 
an  appeal. 

The  decree  is  reversed,  and  the  complaint  dismissed. 

Revbrsbd. 


Argued  6  July,  decided  81  July,  1906. 
GRAY  V.  J0NS8. 

81  Pac.  818. 

Mechanic's  Lien —Waiver  By  Building  Contract. 

1.  Covenant  of  the  contractor  in  a  building  contract  that  he  will  not  allow 
'*  any  Hen  or  Hens  to  be  filed/'  and  "  that  the  said  building  and  preiulflea  •  • 
shall  be  at  all  times  free  from  any  and  all  liens,"  is  a  waiver  of  the  contractor's 
own  right  to  claim  a  lien. 

Building  Contract  -  Substitution  of  New  Contract  by  Changrs, 
Substitutions,  and  Omissions. 

2.  A  building  contract  providing  that  alterations  and  additions  may  be 
made  to  the  building  during  the  progress  of  the  work  when  requested  by  the 
owner,  without  alTecting  the  validity  of  the  contract,  the  value  of  the  changes 
to  be  added  to  or  deducted  from  the  contract  price,  is  not  abandoned,  and  a  new 
contract  substituted  in  its  place,  merely  because  during  the  work  it  is  mutually 
agreed  that  the  plans  and  specifications  shall  be  changed,  and  certain  parta  of 
the  contract  waived. 

From  Marion:  William  Galloway,  Judge. 
Mechanic's  lien  suit  by  John  Gray  against  M.  L.  Jones 
and  wife,  wherein  plaintiff  was  decreed  a  small  sum. 

Reversed. 

For  appellant  there  was  a  brief  with  oral  arguments  by 
Mr.  William  Marion  Kaiser  and  Mr.  Woodson  Taylor  Slater. 

For  respondent  there  was  a  brief  with  oral  arguments 
by  Mr.  George  Greenwood  Bingham  and  Mr.  Peter  H.  D^Arcy. 


July,  1905.]  Gray  v.  Jonks.  41 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

This  is  a  suit  to  foreclose  a  mechanic's  lien.  On  March 
25,  1903  the  plaintiff  agreed  to  furnish  all  the  labor  and 
material  necessary  for  the  construction  and  completion  of 
a  frame  dwelling  house,  with  cement  basement,  for  defend- 
ant, according  to  certain  plans  and  specifications,  for  the 
sum  of  $4,150.  The  contract  stipulated  that  alterations 
and  additions  might  be  made  to  the  building  during  the 
progress  of  the  work  when  requested  by  the  defendant, 
without  in  any  way  affecting  the  validity  of  the  contract, 
but  the  fair  and  reasonable  value  thereof  should  be  added 
to  or  deducted  from  the  contract  price,  as  the  case  might 
be. 

The  contract  contained  this  clause: 

"The  party  of  the  first  part  will  save  the  party  of  the 
second  part  free  and  harmless  from  the  payment  of  any 
and  all  liens  which  may  be  enforced  on  account  of  any 
material  furnished  or  labor  performed  on  said  building 
and  premises,  or  any  part  of  either  thereof;  and  the  said 
party  of  the  second  part  further  covenants  and  agrees  that 
he  will  not  allow  any  laborer's,  mechanic's,  materialman's, 
or  any  lien  or  liens  to  be  filed  against  the  said  building 
and  premises,  or  any  part  of  either  thereof,  and,  further, 
that  the  said  building  and  premises  and  every  part  of 
either  thereof  shall  be  at  all  times  free  from  any  and  all 
liens." 

Certain  alterations  and  changes  were  made,  for  which 
plaintiff  charges  $2,582.15.  The  defendant  paid  the  con- 
tract price  in  full  and  $1,465.16  on  the  extra  work,  which 
he  claims  is  a  fair  and  reasonable  value  for  all  that  was 
ordered  or  requested  by  him  or  done  by  his  authority. 
The  plaintiff  filed  a  mechanic's  lien  on  the  building  for 
$1,117.05,  the  balance  alleged  to  be  due  him,  and  subse- 
quently brought  this  suit  to  foreclose  it.  The  defendant 
pleads,  among  other  matters,  the  covenant  in  the  contract 
against  liens  as  a  bar  to  this  suit,  and  the  effect  of  such 


42  Gray  v.  Jones.  [47  Or. 

covenant  is  the  only  question  necessary  to  consider  on 
this  appeal. 

1.  The  statute  (B.  &  C.  Comp.  §  5640)  giving  a  mechanic, 
laborer,  materialman,  or  contractor  performing  labor  upon 
or  furnishing  material  to  be  used  in  the  construction  of  a 
building  a  lien  on  such  building  for  the  labor  done  or 
material  furnished,  confers  a  privilege  upon  the  persons 
named,  which  they  may  waive,  and  any  contract  or  agree- 
ment inconsistent  with  the  existence  of  the  lien  is  deemed 
such  a  waiver.  As  said  by  the  Supreme  Court  of  Mary- 
land :  **It  [the  lien]  is  brought  into  operation  by  the  estab- 
lished law  of  the  land,  and,  in  the  absence  of  special 
arrangements  to  the  contrary,  parties  are  presumed  to 
have  contracted  for  work  and  materials  with  reference  to 
this  law.  But  no  statute  will  b'e  so  construed  as  to  pro- 
hibit the  formation  of  contracts  not  in  conflict  with  public 
policy.  If,  therefore,  parties  deem  it  advisable  to  enter 
into  an  agreement  inconsistent  with  the  existence  of  a 
lien,  the  statute  will  not  be  construed  to  operate  so  as  to 
create  a  lien  and  thereby  destroy  the  special  contract": 
Willison  V.  Douglas,  66  Md.  99  (6  Atl.  530).  Thus  a  surety 
on  a  contractor's  bond  to  protect  a  building  against  liens 
cannot  himself  enforce  a  lien  for  material  furnished  by 
him,  unless  he  has  been  released  from  his  obligation  by 
the  owner,  because  it  would  be  inconsistent  with  his  con- 
tract for  him  to  do  so :  Hand  Mfg.  Co.  v.  Marks,  36  Or.  523 
(52  Pac.  512, 53  Pac.  1072, 59  Pac.  549);  Spears  v.  Lawrence, 
10  Wash.  368  (38  Pac.  1049, 45  Am.  St.  Rep.  789.)  So,  too, 
a  covenant  of  a  contractor  to  keep  a  building  free  from 
liens  is  a  waiver  of  the  right  to  file  or  cause  to  be  filed  a 
claim  for  lien  in  his  own  favor:  2  Jones,  Liens  (2  ed.), 
§  1500 ;  Phillips,  Liens,  §  272  ;  Boisot,  Mech.  Liens,  §  744; 
Long  V.  Caffrey,  93  Pa.  526;  Scheid  v.  Rapp,  121  Pa.  593 
(15  Atl.  652);  Taylor  v.  Murphy,  148  Pa.  337,  340  (23  Atl. 
1134, 33  Am.  St.  Rep.  825);  Pinning  v.  Skipper,  71  Md.  347 


July,  1905.]  Gray  t^.  Jonks,  43 

(18  Atl.  659).  "The  agreement  of  the  builder  to  provide 
all  the  labor  and  materials  for  the  erection  of  a  building," 
says  the  Supreme  Court  of  Pennsylvania,  "and  look  for  his 
security  solely  to  the  personal  responsibility  of  the  owner, 
leaving  the  building  unincumbered  by  liens,  is  a  valid  and 
binding  one.  It  violates  no  rule  of  public  policy.  A  stat- 
ute that  would  disregard  its  obligations  and  authorize  the 
entry  of  a  lien  for  work  or  materials  in  violation  of  its 
terms,  would  seem  to  be  within  the  prohibition  of  the  con- 
stitution, Art.  1,  §  17,  which  declares  that  no  law  impair- 
ing the  obligation  of  contracts  shall  be  passed":  Taylor  v. 
Murphy,  148  Pa.  337  (23  Atl.  1134,  33  Am.  St.  Rep.  825). 
Now,  the  covenant  of  the  plaintiff  is  that  he  will  not  allow 
"any  lien  or  liens  to  be  filed,"  and  "that  the  said  building 
and  premises,  and  every  part  of  either  thereof,  shall  be  at 
all  times  free  from  any  and  all  liens";  and  under  the 
authorities  cited  this  constitutes  a  waiver  of  his  right  to 
file  a  lien. 

2.  It  was  suggested,  rather  than  argued,  that  the  origi- 
nal contract  had  been  abandoned,  and  a  new  one  substi- 
tuted in  its  place ;  but  this  is  contrary  to  the  pleadings,  the 
proof,  and  the  lien  claim  as  filed  by  the  plaintiff.  The 
complaint  alleges  a  contract  between  the  plaintiff  and 
defendant,  by  the  terms  of  which  the  plaintiff  agreed  to 
furnish  all  the  labor  and  material  necessary  for  the  erec- 
tion and  completion  of  a  frame  dwelling  house  for  the 
defendant,  the  completion  of  such  contract,  and  the  per- 
formance of  the  extra  work  thereunder,  without  setting 
out  its  terms  in  detail.  The  answer  does  so,  however,  and 
pleads  as  a  defense  certain  covenants  therein.  The  reply 
denies  the  allegations  of  the  answer,  and  avers  affirma- 
tively that  soon  after  the  work  was  commenced  it  was 
found  that  the  plans  and  specifications  were  so  defective 
that  the  building  could  not  be  constructed  in  accordance 
therewith  satisfactorily  to  the  defendant,  and  it  was  there- 


44  McKiNNON  V.  HiQGiNs.  [47  Or. 

fore  mutually  agreed  at  his  request  that  plaintiff  should 
proceed  with  the  construction  and  completion  of  the  build- 
ing as  modified  and  changed  by  him,  and  as  the  same 
might  from  time  to  time,  as  the  work  progressed,  be  mod- 
ified and  changed,  and  that  certain  parts  of  the  contract 
should  be  waived.  There  is  no  averment,  however,  that 
the  original  contract  was  abandoned,  and  a  new  one  sub- 
stituted, or  that  the  work  was  performed  under  any  other 
or  different  contract  than  the  one  originally  entered  into 
between  the  parties.  The  changes,  alterations,  and  addi- 
tions to  the  work  were  provided  for  in  the  contract,  with- 
out impairing  its  validity,  and  are  deemed  for  the  purpose 
of  the  mechanic's  lien  law  as  a  part  of  the  original  con- 
tract :  20  Am.  &  Eng.  Enc.  Law  (2  ed.),  361 ;  Hobkirk  v. 
Portland  Baseball  Club,  44  Or.  605  (76  Pac.  776). 

The  plaintiff  testified  that  about  the  time  the  work  was 
commenced  the  defendant  said  to  him  that  he  wanted  a 
good  building,  and  was  willing  to  pay  for  it;  but  that 
whenever  it  was  found  necessary  to  make  any  changes  or 
additions  as  the  work  progressed  he  consulted  the  defend- 
ant, **and  he  always  directed  me  what  to  do."  The  lien 
as  filed  affirms  and  is  based  upon  the  original  contract. 
There  is  no  room,  therefore,  for  the  contention  that  the 
original  contract  was  abandoned,  and  a  new  one  substi- 
tuted ;  and,  as  the  plaintiff's  contract  is  a  waiver  of  his 
right  to  file  a  lien,  it  follows  that  the  decree  must  be  re- 
versed, and  the  complaint  dismissed,  and  it  so  ordered. 

Reversed. 


'  47       44]  Argued  27  J  une,  decided  17  July,  rehearing  denied  28  August,  1906. 

i~^     ^§  McKIKNOK  t\  HIOOIK8. 

81  Pac.  581. 

Construction  of  Contract  to  Deliver  Building  Free  of  Liens. 

1.  A  stipulation  in  a  building  contract  that  the  last  installment  due  there- 
under is  to  be  paid  when  the  building  is  surrendered  free  of  all  Hens,  requires  an 
indemnitor,  who  has  given  an  undertalsing  conditioned  that  the  principal  shall 


July,  1905.]  McKiNNON  v.  Higgins.  45 

faithfblly  comply  with  the  terms  of  the  oontract,  to  see  that  the  building  Is  sur- 
rendered free  of  liens. 

Waiver  of  Limitation  by  Indemnitor. 

'2,  An  indemnitor  on  a  building  contract,  which  accepted  from  the  owner  the 
final  payments  under  the  contract,  and  then  permitted  Hens  to  be  flled  against 
the  property,  waived  Its  right  to  Insist  tbatan  action  by  the  owner  to  recover  the 
damage  sustained  by  the  filing  of  the  Hens  was  not  Instituted  within  the  time 
limited  by  the  Indemnity  undertaking. 

Appeal— Presumption  From  Incompleti:.  Bill  of  Exceptions. 

8.  Where  the  bill  of  exceptions  does  not  purport  to  contain  all  the  testimony 
introduced  at  the  trial.  It  will  be  presumed  on  appeal  that  the  evidence  was  suffi- 
cient to  support  the  findings. 

From  Multnomah :  Arthur  L.  Frazkr,  Judge. 

Action  on  a  bond  by  J.  A.  McKinnon  against  J.  W. 
Higgins  and  another.  Judgment  for  plaintiff,  and  the 
other  appeals.  Affirmed. 

For  appellant  there  was  a  brief  over  the  name  of  Piatt 
&  Piatt,  with  an  oral  argument  by  Mr,  Harrison  Gray  PlatL 

For  respendent  there  was  a  brief  over  the  names  of 
Whitney  Lyon  Boise,  Waldemar  Seton^  and  John  T  McKee, 
with  oral  arguments  by  Mr,  Boise  and  Mr,  McKee, 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

This  is  an  action  by  J.  A.  McKinnon  against  J.  W.  Hig- 
gins and  the  ^tna  Indemnity  Co.,  a  corporation,  to  recover 
the  damage  resulting  from  the  breach  of  an  agreement. 
The  facts  are  that  on  July  17,  1902,  the  plaintiff  entered 
into  a  contract  with  the  defendant  Higgins,  whereby  the 
latter,  in  consideration  of  $2,181,  stipulated  to  furnish  the 
necessary  material  and  to  erect  for  plaintiff  on  or  before 
October  16, 1902,  a  two-story  house  on  a  lot  of  ground  sit- 
uated on  East  Salmon  Street,  between  Fourteenth  and  Fif- 
teenth streets,  in  the  City  of  Portland  ;  the  last  installment 
of  the  contract  price  to  be  paid  when  the  building  was 
surrendered  to  plaintiff  free  of  all  liens.  To  secure  the 
performance  of  the  terms  of  this  agreement,  Higgins,  as 
principal,  and  the  iEtna  Indemnity  Co.,  as  surety,  executed 
to  plaintiff  an  undertaking  of  the  same  tenor  and  effect 


46  McKiNNON  V.  HiGGrNS.  [47  Or. 

as  set  out  in  the  case  of  Ausplund  v.  ^tna  Indemnity  Co,^ 

47  Or.  10  (81  Pac.  577).  The  house  was  not  completed 
within  the  time  stipulated,  whereupon  plaintiff  notified 
the  indemnity  company  of  such  default,  and  thereafter,  in 
pursuance  of  the  terms  of  the  undertaking,  paid  to  the  cor- 
poration the  sums  of  money  due  Higgins  under  the  agree- 
ment. Higgins  also  failed  to  pay  for  all  the  material  used 
in  the  building,  and  to  secure  the  sums  due  therefor  sev- 
eral liens  were  filed  against  the  property,  and  suits  were 
instituted  to  foreclose  such  liens.  The  indemnity  com- 
pany was  notified  of  the  pendency  of  these  suits,  and 
requested  to  appear  and  make  defense  thereto,  but  neg- 
lected to  do  so,  whereupon  decrees  were  rendered  foreclos- 
ing the  liens.  In  pursuance  of  these  decrees  the  plaintiff's 
property  was  offered  for  sale,  to  prevent  which  he  was,  on 
May  19,  1903,  compelled  to  pay  the  sum  of  $1,393.11,  for 
which  he  brings  this  action,  and  for  interest  thereon  at  6 
per  cent  since  the  date  of  the  payment  thereof.  The  plead- 
ings and  proceedings  in  this  case  are  almost  identical  with 
those  in  the  Ausplund  Case,  and,  judgment  having  been 
rendered  in  plaintiff's  favor  for  the  sum  demanded,  the 
indemnity  company  appeals. 

1.  In  the  case  at  bar  it  was  stipulated  in  the  contract 
that  the  last  installment  due  thereunder  was  to  be  paid 
when  the  building  was  surrendered  free  of  all  liens  ;  and, 
though  the  agreement  is  not  as  specific  in  this  respect  as 
the  contract  in  the  Ausplund  Case,  which  contained  a  defi- 
nite clause  in  relation  to  liens,  we  believe  the  stipulation 
in  respect  to  the  surrender  of  the  premises  free  of  all  liens 
sufficient  to  bring  it  within  the  indemnity  provided  by  the 
undertaking. 

2.  The  final  payments  so  made  by  plaintiff  of  the  sum 
due  under  the  contract  did  not  forfeit  his  rights  to  the 
indemnity,  but  the  indemnity  company,  by  accepting  this 
sum  of  money  and  permitting  liens  to  be  filed  against  the 


July,  1905.]  Taylor  v.  Taylor.  47 

property,  waived  its  right  to  insist  that  );he  action  to  recover 
the  damage  sustained  was  not  instituted  within  the  time 
limited  by  the  undertaking. 

3.  The  decree  foreclosing  the  liens  is  against  the  west 
half  of  lots  7  and  8  in  block  294  of  Hawthorne  Park,  in 
the  City  of  Portland,  while  the  contract  specified  that 
plaintiff's  house  should  have  been  built  on  a  Iqt  of  ground 
situated  on  East  Salmon  Street,  between  Fourteenth  and 
Fifteenth  streets,  in  the  City  of  Portland,  Oregon,  and  it 
is  contended  by  appellant's  counsel  that  no  evidence  was 
introduced  at  the  trial  tending  to  show  that  the  real  prop- 
erty described  in  the  decree  is  identical  with  that  specified 
in  the  contract  and  in  the  undertaking.  The  bill  of  excep- 
tions in  the  case  at  bar  does  not  purport  to  contain  all 
the  testimony  introduced  at  the  trial,  and  in  the  absence 
thereof  it  will  be  assumed  that  the  evidence  was  sufficient, 
and  hence  the  judgment  is  affirmed.  Affirmed. 


Decided  8  July,  1906. 
TAYLOB  V.  TAYLOR. 

81  Pao.  mr. 

DivoBCK  —  Allowance  for  Garb  of  Children. 

1.  Under  B.  A  C.  Comp.  g  518,  authorlzlDK  the  court,  in  granting  divorce,  to 
provide  for  the  fbture  care  and  custody  of  minor  children,  having  regard  to  their 
age  and  sex,  where  custody  of  two  children,  aged  eleven  and  eight  years,  was 
granted  the  mother,  the  father's  property  being  worth  175,000,  an  appropriation 
of  16,500  to  the  mother  for  the  future  care  of  the  children,  together  with  one  half 
the  furniture,  etc.,  was  Justified,  though  the  father  was  given  the  divorce. 

LiBN  OF  Allowance  in  Divorce  Case. 

2.  The  amount  allowed  in  a  divorce  decree  to  a  spouse  for  the  care  of  minor 
children  may  be  declared  a  lien  on  the  real  property  of  the  one  directed  to  pay. 

Costs  and  Disbursements  in  Equity  Cases. 

3.  The  awarding  and  division  of  costs  in  equity  cases  is  discretionary,  and 
the  suocessftil  party  Is  not  entitled  as  of  right  to  either  costs  or  disbursements. 

From  Umatilla:  William  R.  Ellis,  Judge. 
Defendant  appeals  from  decree  entered.     Affirmed. 


48  Taylor  v.  Taylor.  [47  Or. 

For  appellant  there  was  a  brief  with  oral  arguments  by 
Mr,  James  A.  Fee  and  Mr,  John  McCourL 

For  respondent  there  was  a  brief  and  an  oral  argument 
by  Mr,  William  McDowell  Peterson. 

Per  Curiam.  This  is  a  suit  by  Moses  Taylor  against 
Isabella  Taylor  for  a  divorce  on  the  ground  of  cruel  and 
inhuman  treatment.  The  defendant  also  seeks  affirmative 
relief.  The  plaintiff  secured  the  decree ;  the  court  giving 
the  custody  of  a  minor  daughter  and  a  son  to  the  defend- 
ant, who  appeals.  The  testimony  comprises  691  pages  of 
legal  cap  typewritten  matter,  much  of  which  is  of  that  kind 
that  ought  not  to  be  embodied  in  a  printed  report,  and  for 
this  reason  quotations  therefrom  or  extended  comments 
thereon  will  be  omitted. 

An  examination  of  the  transcript  convinces  us  that  the 
principal  charge  of  cruelty,  alleged  by  the  wife  against  the 
husband,  has  not  been  established,  and  that  he  is  entitled  to 
the  decree.  The  court  awarded  to  the  defendant  the  north- 
west quarter  of  section  21  in  township  4  north  of  range  35 
east  of  the  Willamette  Meridian,  valued  at  $10,000;  lots  11 
and  12  in  block  1  of  Kirk's  Third  Addition  to  Athena, 
Umatilla  County,  Oregon,  estimated  to  be  worth  $7,500; 
one  half  the  beds,  bedding,  cooking  utensils,  dishes,  chairs, 
tables,  bedsteads,  and  carpets  used  by  the  parties ;  and  also 
$6,500  in  money,  payable  at  stated  intervals,  without  in- 
terest, the  last  installment  maturing  October  1,  1910;  the 
decree  providing  that  plaintiff  might  discharge  the  obliga- 
tion imposed  upon  him  at  any  time  by  paying  defendant 
the  present  worth  thereof,  computing  interest  thereon  at 
5  per  cent.  The  premises  first  hereinbefore  described  were 
intended  to  be  conveyed  by  the  plaintiff  to*the  defendant 
before  this  suit  was  instituted,  but  by  mutual  mistake  the 
deed  therefor  located  the  land  in  the  wrong  township.  The 
defendant  at  one  time  also  held  the  legal  title  to  the  lots  in 
Athena,  which  she  and  the  plaintiff  conveyed  to  a  pur- 


July,  1905.]        ^      Taylor  v.  Taylor.  49 

chaser  who  was  unable  to  pay  the  price  agreed  therefor, 
whereupon  the  lots  were  conveyed  to  the  plaintiff.  It  will 
thus  be  seen  that  the  real  property  decreed  to  the  defend- 
ant was  equitably  hers  before  this  suit  was  begun. 

The  failure  of  the  court  to  observe  the  requirement  of 
the  statute  (B.  &  C.  Comp.  §  511),  and  to  award  an  un- 
divided one  third  of  such  land  to  plaintiff,  is  not  assigned 
as  error  by  his  counsel,  who,  in  referring  thereto  in  his 
brief,  says,  "After  considerable  deliberation,  we  decided  to 
rest  upon  the  decree,  and  are  willing  to  so  rest,'*  and  for 
this  reason  the  allotment  of  the  land  will  not  be  disturbed, 
and  plaintiff  is  hereby  required,  within  60  days  from  the 
entry  of  this  decree,  to  execute  to  the  defendant  a  good 
and  sufficient  deed  for  such  land,  free  of  all  liens  and  in- 
cumbrances. 

1.  The  statute  authorizes  the  court,  in  granting  a  decree 
of  divorce,  to  provide  for  the  future  care  and  custody  of 
the  minor  children  of  the  marriage,  having  due  regard  to 
the  age  and  sex  of  such  children:  B.  &  C.  Comp.  §  513. 
The  sum  properly  to  be  set  aside  for  the  future  support  of 
minor  children,  who  are  deprived  of  joint  parental  care 
by  the  divorce  of  their  father  and  mother,  ought  to  be 
somewhat  proportioned  to  the  value  of  the  property  to 
which  a  court  of  equity  must  look  for  their  maintenance 
and  education.  The  court  found  that  plaintiff  possessed 
property  of  the  value  of  $75,000,  and  we  think  the  testi- 
mony fully  supports  such  conclusion.  This  estimate  of 
the  worth  of  his  property  justifies  the  appropriation  of 
$6,500  made  by  the  court  to  the  defendant. 

2.  The  sum  thus  awarded  is  hereby  impressed  as  a  lien 
upon  all  plaintiff's  real  property,  except  such  as  he  is 
required  to  convey  to  the  defendant.  Such  sum,  together 
with  one  half  the  beds,  etc.,  is  not  awarded  to  the  chil- 
dren, who  are  eleven  and  eight  years  old,  respectively,  but 

47  Or. 4 


^ d 


50  Sears  v,  James.  [47  Or. 

is  hereby  decreed  to  their  mother  for  their  support  and 
education  until  they  attain  their  legal  majorities;  the  tes- 
timony showing  that  she  is  a  proper  person  to  have  charge 
of  them. 

3.  The  court  below  decreed  that  neither  party  should 
recover  any  costs  or  disbursements,  and  a  like  order  will 
be  made  in  respect  thereto  in  this  court. 

With  this  slight  modification,  the  decree  of  the  court 
below  should  be  affirmed,  and  it  is  so  ordered. 

Modified  and  Affirmed. 


Ang^ued  18  July,  decided  28  Augrust,  1906. 

SEA&S  V,  JAMES. 

82  Pac.  14. 

Rbcovbby  of  Public  Funds  Unlawfully  Divbbtbd. 

1.  After  public  funds  have  been  diverted  an  Individual  taxpayer  cannot  main, 
tain  a  suit  to  recover  them,  but  the  State  only  can  so  act. 

Who  May  Maintain  Suit  to  Restrain  Thrbatbnbd  Divbbsion  of 
Public  Funds. 

2.  Buit  for  an  injunction  cannot  be  maintained  against  the  superintendent 
of  a  public  Institution  on  the  general  allegation  that,  unless  restrained,  he  will 
continue  to  furnish  his  family  with  supplies  and  cause  the  bills  therefor  to  be 
paid  out  of  the  state  funds;  he  having  no  authority  to  disburse  state  funds,  but 
being  merely  authorized  to  purchase  supplies  for  the  institution,  and  present  the 
bills  to  the  state  auditing  officer,  by  whom  I  hey  must  be  approved  before  being 
paid. 

Injunction  Against  Malfeasance  in  Office. 

8.  The  £EU3t  that  a  public  official  may  be  so  performing  his  official  duties  as  to 
be  liable  for  malfeasance  in  office  does  not  Justify  equitable  interference  at  the 
suit  of  a  taxpayer. 

From  Marion:  William  Galloway,  Judge. 

Statement  by  Mr.  Justice  Bean. 

This  is  a  suit  brought  by  J.  K.  Sears,  a  taxpayer,  for 
himself  and  on  behalf  of  all  other  taxpayers,  against  C.  W. 
James,  personally  and  as  superintendent  of  the  state  peni- 
tentiary, to  compel  that  officer  to  account  for  and  return  to 
the  state  treasury  money  alleged  to  have  been  expended 
by  him  for  his  own  private  use,  and  to  account  for  and 


Aug.  1905.]  Sears  v.  James.  51 

pay  over  to  the  state  treasury  the  value  of  the  services 
of  certain  convicts  employed  by  him,  and  to  enjoin  and 
restrain  him  from  making  further  expenditures  or  further 
use  of  convicts.  The  complaint  contains  three  causes  of 
suit.  In  the  first  it  is  alleged  that  in  1903  the  defendant 
purchased  for  his  own  private  use  a  large  amount  of  fur- 
niture, and  had  the  bills  therefor  made  out  against  the 
penitentiary  betterment  fund,  and  by  falsely  and  fraudu- 
lently representing  that  the  furniture  so  purchased  was 
for  the  use  and  benefit  of  the  penitentiary  had  such  bills 
to  the  amount  of  about  $1,000  audited  and  paid  from  such 
fund ;  that  neither  the  whole  nor  any  part  of  the  furniture 
was  for  the  use  or  benefit  of  the  State,  but  was  taken  pos- 
session of  and  used  by  the  defendant  and  his  family  in 
their  private,  and  not  official,  capacity.  The  second  cause 
of  suit  is  that  between  April,  1903,  and  January,  1905,  the 
the  defendant  supplied  his  private  family  with  groceries 
and  provisions  from  the  state  funds,  and  by  false  and 
fraudulent  representations  caused  and  procured  the  bills 
therefor  to  the  amount  of  $900  to  be  audited  and  paid 
from  the  money  appropriated  for  the  support  of  the  peni- 
tentiary, and,  unless  restrained  and  enjoined,  will  continue 
to  so  supply  his  family  with  groceries  and  provisions.  The 
third  cause  of  suit  is  that  ever  since  his  appointment  as 
superintendent  of  the  penitentiary  the  defendant  has  com- 
pelled from  four  to  seven  convicts  confined  in  that  institu- 
tion to  do  private  laundry  work  for  himself  and  his  family, 
and  perform  other  menial  services  in  and  about  his  resi- 
dence, for  the  exclusive  use  and  benefit  of  himself  and 
family  in  his  and  their  unofficial  capacity ;  that  the  labor 
of  such  convicts  was  worth  the  sum  of  fifty  cents  a  day 
each,  or  about  $1,000  in  all;  and  that  the  defendant  will, 
unless  enjoined  and  restrained,  continue  to  so  employ 
and  use  such  convicts.  The  prayer  for  relief  is  that  the 
payments  for  furniture  and   groceries  be  declared  null 


52  Sears  v.  James.  [47  Or. 

and  void,  and  that  defendant  be  compelled  to  return  the 
amount  thereof  to  the  fund  to  which  it  belongs,  and  to 
pay  into  the  state  treasury  the  value  of  the  services  of  the 
convicts  employed  by  him,  and  be  perpetually  enjoined 
from  supplying  his  family  ''with  anything  whatsoever  at 
the  expense  of  the  taxpayers  of  the  State,"  and  restrained 
from  employing  prisoners  for  the  use  and  benefit  of  him- 
self and  family.  A  demurrer  to  the  complaint  was  sus- 
tained, and  the  suit  dismissed,  and  the  plaintiff  appeals. 

Affirmed. 

For  appellant  there  was  an  oral  argument  and  a  brief 
by  Mr,  L,  H.  McMahan^  to  this  effect. 

I.  The  right  of  a  taxpayer  of  Oregon  to  restrain  a  mis- 
appropriation of  public  funds  by  any  officer  of  this  State, 
and  to  compel  restitution, is  no  longer  open  to  discussion  : 
Carman  v.  Woodruff,  10  Or.  133;  Sherman  v.  Bellows,  24  Or. 
553  (34  Pac.  549);  Avery  v.  Job,  25  Or.  512  (36  Pac.  293); 
State  V.  Pennoyer,  26  Or.  205  (25  L.R.  A.  862, 37  Pac.  906). 

II.  Section  3662,  B.  &  C.  Comp.,  provides  that  the  super- 
intendent of  the  penitentiary  shall  not  receive  the  labor 
of  any  prisoner  for  his  individual  use,  while  section  3664 
provides  the  salary  of  such  superintendent.  In  view  of 
these  provisions  it  seems  very  clear  that  this  court  has 
jurisdiction  to  grant  the  desired  relief. 

I  respectfully  submit  that  when  an  officer,  in  whatever 
capacity  he  may  be  acting,  diverts  money  raised  by  taxa- 
tion from  its  intended  use  to  objects  of  personal  profit  in 
no  way  connected  with  the  public  interest  or  welfare,  he 
becomes  a  public  plunderer  for  private  gain,  and  when 
done  by  one  having  the  custody  of  a  fund  thus  wrongfully 
diverted,  he  makes  a  victim  of  the  taxpayers  and  himself 
becomes  a  thief  and  embezzler  of  public  funds. 

For  respondent  there  was  an  oral  argument  by  Mr. 
William  Henry  Holmes  and   Mr,  John  Anthony  Jeffrey, 


Aug.  1905.]  Sbars  v.  Jambs.  53 

with  a  brief  over  the  names  of  W.  H.  &  Webster  Holmes 
and  J.  A .  Jeffrey,  to  this  effect. 

1.  A  taxpayer  has  no  right  in  his  own  name  and  rela- 
tion to  maintain  a  suit  enjoining  a  public  officer  from 
performing  any  official  act,  unless  he  shows  that  a  special 
injury  to  himself  other  than  that  suffered  by  the  public  at 
large  will  result  from  such  act,  and  that  the  act  itself  is 
without  warrant  of  law:  Lurhs  v.  Sturtevant,  10  Or.  170; 
Sherman  yj.  Bellows,  24  Or.  553  (34  Pac.  549);  Esson  v.  WaU 
tier,  25  Or.  7  (34  Pac.  756);  State  v.  Pennoyor,  26  Or.  205 
(25  L.  R.  A.  862,  37  Pac.  906);  State  ex  rel.  v.  Lord,  28  Or. 
498  (31  L.  R.  A.  473,  43  Pac.  471);  State  ex  rel,  v.  Metschan, 
32  Or.  372  (41  L.  R.  A.  692,  46  Pac.  791,  53  Pac.  1071). 

Further,  when  the  money  has  already  been  misapplied, 
the  proceeding  must  be  commenced  by  the  public  prose- 
cutor:  State  ex  rel,  v.  Lord,  28  Or.  498(31  L.  R.  A.  473,  43 
Pac.  471);  Brownfield  v.Houser,  30  Or.  534  (49  Pac.  843); 
McCord  V.  Pike,  121  111.  288  (2  Am.  St.  Rep.  85,  12  N.  E. 
259). 

2.  The  defendant  C.  W.James  in  person  cannot  be  sued 
jointly  with  C.  W.  James  in  his  official  capacity  as  super- 
intendent of  the  penitentiary  for  the  reason  that  the  two 
capacities  are  entirely  distinct:    Bliss,  Code  Plead.  §  117. 

3.  The  remedy  sought  in  this  case  does  not  come  within 
the  recognized  grounds  of  the  jurisdiction  of  equity.  Since 
the  facts  stated,  if  they  be  facts,  constitute  the  crime  of 
embezzlement,  and  equity  will  not  enjoin  the  commis- 
sion of  a  crime  or  interfere  with  the  administration  of 
the  criminal  laws  of  the  State  unless  there  is  an  interfer- 
ence with  property  rights:  High, Injunctions (3  ed.),  §20; 
16  Am.  &  Eng.  Enc.  Law  (2  ed.),  363;  Coosaw  Min.  Co,  v. 
South  Carolina,  144  U.  S.  550. 

4.  The  superintendent  of  the  penitentiary  does  not  draw 
money  except  upon  vouchers  audited  by  the  Secretary  of 
State,  who  is  the  disbursing  officer  of  the  State :  B.  &  C. 


54  Sears  v.  James.  [47  Or. 

Com  p.  §  2397,  subd.  7.  As  to  what  is  called  the  Better- 
ment Fund,  the  Governor  expends  that,  and  the  superin- 
tendent is  not  even  a  party  to  the  proceeding.  It  seems 
to  us  highly  ridiculous  to  ask  that  a  public  officer  who  does 
not  handle  any  of  the  funds  of  the  State  be  required  to 
account  to  a  private  individual  for  an  expenditure  audited 
and  paid  by  the  proper  public  officers.  Indeed,  the  state- 
ment of  the  proposition  is  its  own  best  refutation. 

5.  It  would  seem  that  plaintiff's  counsel,  in  the  destruc- 
tion of  the  vast  amount  of  gray  matter  necessary  to  pro- 
duce the  brief  for  plaintiff  in  this  suit,  might  have  ascer- 
tained that  the  State  has  a  complete  remedy  at  law  for  the 
acts  complained  of :  State  v.  Brown,  10  Or.  215. 

It  would  be  unpardonable  to  attempt  at  greater  length 
to  reduce  the  absurdity  at  bar  known  as  the  plaintiff's  case 
to  a  plainer  or  more  palpable  absurdity  than  is  manifest 
by  an  inspection  of  the  record  here  presented.  The  coun- 
sel for  plaintiff,  after  strenuous  efforts  in  behalf  of  his 
client,  seems  to  have  but  reached  the  luminous  conclusion 
that  the  man  who  steals  is  a  thief  and  the  public  officer 
who  purloins  is  an  embezzler.  In  truth,  we  can  easily  im- 
agine that  having  been  led  to  this  perplexing  conclusion 
by  and  through  such  efforts,  he  felt  how  peaceful  and 
restful  will  be  that  happy  land  **where  moth  and  rust  do 
not  corrupt  and  where  thieves  do  not  break  through  and 
steal." 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court, 

1.  For  the  purposes  of  this  appeal  the  averments  of  the 
complaint  must  be  taken  as  true,  and  the  single  question 
is  whether  plaintiff  can  maintain  the  suit.  That  a  tax- 
payer  may  invoke  the  interposition  of  a  court  of  equity 
to  prevent  the  illegal  disposition  of  public  funds  is  no 
longer  open  to  question  in  this  State:  Burness  v.  Multno- 
mah County,  37  Or.  460  ( 60  Pac.  1005),  and  authorities  there 
cited.    But,  where  the  fund  has  already  been  wasted  or 


Aug.  1905.]  Srars  V,  James.  55 

paid  out,  the  action  to  recover  it  back  must  be  brought  by 
the  state  or  municipality  to  which  it  belonged.  It  w^is  so 
decided  in  Brownfield  v.Houser,  30  Or.  534  (40  Pac.  843). 
In  that  case  Houser,  who  was  Sheriff  of  Umatilla  County, 
had  been  paid  a  large  amount  of  money  by  the  county  for 
services,  without  authority  of  law,  and  it  was  held  that 
the  county  might  maintain  an  action  to  recover  it  back, 
but  an  individual  taxpayer  could  not  do  so.  The  court  said 
that  the  right  of  a  taxpayer  to  enjoin  the  public  authori- 
ties from  misapplying  or  misappropriating  public  funds 
was  well  recognized,  but,  when  the  fund  had  already  been 
misapplied,  *^the  mischief  is  accomplished  and  the  injury 
completed,  in  which  case  the  necessity  for  an  extraordi- 
nary remedy  does  not  exist.  To  allow  a  taxpayer  in  his  own 
name  to  maintain  an  action  to  recover  corporate  property 
or  funds  after  they  had  been  diverted  would  be  equiva- 
lent to  opening  wide  the  doors  to  an  indefinite  number  of 
actions  by  persons  similarly  situated,  thereby  subjecting 
the  officers  and  corporation  to  interminable  litigation : 
2  Dillon,  Munic.  Corp.  §  921.  When  the  injury  is  com- 
plete, the  unlawful  diversion  of  public  funds  falls  directly 
upon  the  municipal  corporation  and  remotely  upon  each 
taxpayer,  and,  since  the  corporation  is  the  actual  party 
sustaining  the  direct  result  of  the  injury,  so  should  it  also 
be  the  real  party  in  interest,  either  in  its  own  corporate 
name  or  upon  the  relation  of  a  proper  person,  to  prosecute 
an  action  for  the  redress  of  the  injury  after  its  consumma- 
tion." So  far,  therefore,  as  the  money  already  expended 
for  the  private  use  and  benefit  of  the  defendant  is  con- 
cerned, the  Brownfield  Case  is  controlling,  and  the  plaintiff 
has  no  cause  of  suit. 

2.  The  complaint  contains  a  general  averment  that  the 
defendant  threatens  to  and  will,  unless  restrained  by  the 
court,  continue  to  furnish  himself  and  family  with  gro- 


56  Sbars  v.  James.  [47  Or. 

ceries  and  provisions,  and  cause  the  bills  therefor  to  be 
paid  out  of  state  funds,  and  that  he  will  continue  to  use 
the  services  of  convicts ;  and  it  is  argued  that  the  plaintiff 
is  entitled  to  an  injunction  restraining  him  from  doing  so. 
The  defendant  has  no  authority  under  the  law  to  pay  any 
bills  or  handle  or  disburse  any  state  funds.  He  has  author- 
ity  to  make  all  purchases  of  supplies  needed  for  the  peni- 
tentiary or  prisoners  (B.  &  C.  Comp.  §  3655),  but  the 
accounts  therefor  must  be  presented  to  and  audited  by  the 
Secretary  of  State,  and  no  money  can  be  paid  for  any 
purpose  on  account  of  the  penitentiary  except  upon  war- 
rants issued  by  that  officer:  B.  &  C.  Comp.  §  3663.  The 
Secretary  of  State  is  therefore  the  auditing  officer,  charged 
with  the  duty  of  protecting  the  State  from  false  and  fraud- 
ulent claims.  He  is  not  a  party  to  this  suit,  and  we  must 
assume  that  he  will  discharge  his  duty,  and,  if  defendant 
approves  or  presents  an  illegal  claim,  that  it  will  be  dis- 
allowed. Until  some  such  claim  has  been  presented  and 
is  about  to  be  paid  out  of  state  funds,  there  is  no  ground 
for  equitable  interference. 

8.  The  statute  provides  that  the  superintendent  of  the 
penitentiary  shall  not  receive  the  labor  of  any  prisoner  for 
his  individual  profit,  or  be  interested  in  any  contract  upon 
which  such  labor  shall  be  employed  :  B.  &  C.  Comp.  §  3662. 
If  the  defendant  has  or  is  violating  this  section,  he  may  be 
liable  for  malfeasance  in  office ;  but  it  is  in  our  opinion  no 
ground  for  equitable  interference  at  the  suit  of  an  indi- 
vidual taxpayer. 

The  decree  of  the  court  below  is  affirmed. 

Affirmed. 


i 


July,  1905.]  Casto  t;.  Murray.  57 

Argued  5  July,  decided  31  July,  1906,  rehearing  denied. 

GA8T0  i\  MUBRAY. 

81  Pac.  S88,  888. 

Appkal— Oral  Instructions  as  Part  of  Record  of  Trial  Court— 
Bill  of  Exceptions  —  Diminution  of  Record. 

1.  Oral  Instructions  to  the  Jury  are  not  a  part  of  the  re(;ord  of  the  trial  court, 
under  B.  A C.  Ck>mp.  g  192,  subd.  6,  requiring  the  charge  to  the  Jury  to  be  reduced 
to  writing  and  filed  with  the  clerk  at  the  request  of  either  party,  so  that  unless 
such  Instructions  are  written  out  afterward  and  made  a  part  of  the  bill  of  excep- 
tions, they  cannot  reach  the  supreme  court. 

Supplying  Diminished  Transcript— Oral  Instructions. 

2.  A  diminished  transcript  cannot  be  supplied  by  matter  not  part  of  the 
records  of  the  trial  court,  as,  for  example,  by  a  copy  of  the  oral  Instructions 
taken  stenographlcally  and  extended,  such  writing  not  being  part  of  the  statu- 
tory record  of  the  trial. 

Replevin  —  Rights  of  Possessor. 

8.  Bare  possession  of  personal  property  entitles  the  possessor  to  hold  it 
against  mere  trespassers,  even  though  the  title  may  be  In  another. 

Master  and  Servant  — Effect  of  Death. 

4.  The  relation  of  master  and  servant  is  ended  by  the  death  of  the  employer, 
unless  there  Is  a  special  agreement  otherwise. 

Pleading  — Matters  of  Inducement  Are  Immaterial. 

5.  Matters  of  Inducement  and  explanation,  not  constituting  a  part  of  the 
cause  of  action,  are  immaterial  and  may  be  stricken  out  on  motion. 

Replevin  —  Alleging  Right  of  Possession. 

6.  In  replevin  it  must  appear  by  the  complaint  that  plaintiff  was  entitled  to 
the  possession  of  the  property  named  at  the  time  tbe  action  was  commenced. 

Idem— Allegations  Without  Conclusions. 

7.  A  complaint  In  claim  and  delivery,  basing  plaintiff's  right  of  possession 
on  a  contract  covering  a' definite  period  of  time,  before  the  expiration  of  which 
the  action  was  commenced,  and  showing  that  at  a  date  prior  to  the  expiration  of 
that  period  defendants  unlawfully  took  possession  of  tbe  property,  discloses  a 
right  to  the  immediate  possession  of  tbe  property  In  plaintiff,  without  an  express 
averment  to  that  effect,  and  the  striking  out  of  such  an  averment  Is  not  error. 

Administrators  —  Appointment  —  Effect  —  Title  by  Relation. 

8.  Under  B.  A  C.  Com  p.  g  1147,  vesting  title  to  the  possession  and  control  of 
property  of  <i  decedent  In  his  personal  representative  until  the  completion  of  the 
administration,  and  section  6578,  entitling  the  widow  of  an  Intestate  who  leaves 
no  issue  to  the  residue  of  his  personal  properly  after  the  payment  of  tbe  debts 
and  expenses  of  administration,  a  widow  of  an  Intestate  decedent,  who  takes 
possession  of  personal  property  belonging  to  her  deceased  husband's  estate 
prior  to  the  appointment  of  an  administrator,  acquires  by  a  subsequent  appoint- 
ment as  administratrix  a  title  to  such  personal  property  which  relates  back  to 
her  husband's  death,  and  may  be  pleaded  as  a  defense  to  an  action  of  replevin 
brought  for  such  property  by  the  person  from  whom  she  took  the  same,  pro- 
vided the  taking  was  lawful ;  but  the  title  so  acquired  will  not  relate  back,  so  as 
to  validate  the  taking,  if  the  same  was  originally  unlawful  and  In  violation  of 
the  rights  of  the  person  In  possession  thereof. 

From  Marion :  George  H.  Burnett,  Judge. 


58  Casto  v.  Murray.  [47  Or. 

This  is  a  replevin  action  by  Samuel  Casto  against  Emma 
Murray  and  others,  resulting  in  a  judgment  for  defendants. 
After  the  transcript  had  been  filed  the  respondents  moved 
for  permission  to  supplement  the  record,  which  was  over- 
ruled, and  upon  final  consideration  the  judgment  was  af- 
firmed. Motion  Ovbrrulkd  :  Affirmed. 


Decided  20  March,  1906. 

On  Motion  to  Supplement  the  Record. 

Mr,  John  A,  Carson  and  Mr,  Anderson  M.  Cannon  for 
the  motion. 

Mr.  Woodson  T.  Slater,  contra. 

Per  Curiam,  1.  This  is  a  motion  by  respondents  sug- 
gesting a  dimunition  of  the  record,  and  to  have  this  court 
supplement  the  same  with  the  instructions  to  the  jury  of 
the  trial  court.  The  instructions  have  not  been  sent  up, 
and  are  therefore  not  a  part  of  the  record  here.  The  de- 
clared purpose  of  thus  having  the  record  completed  is  to 
have  it  shown  that,  although  the  trial  court  overruled  a 
demurrer  to  the  first  separate  answer  to  the  amended  com- 
plaint, it  in  effect  disregarded  such  answer  by  its  instruc- 
tions to  the  jury,  and  thereby  cured  the  error,  if  any,  in 
its  ruling  upon  the  demurrer ;  it  being  now  insisted  by 
the  appellant  that  the  trial  court  erred  in  that  particular. 
The  instructions  were  given  orally  and  taken  down  in 
shorthand,  but  the  notes  were  not  extended  and  filed  with 
the  clerk  until  later,  when  they  were  certified  to  by  the 
circuit  judge  as  being  full  and  correct,  and  this  court  is 
now  asked  to  annex  them  to  the  record  here.  There  is  a 
bill  of  exceptions  accompanying  the  record,  but  whether 
it  is  desired  to  have  the  instructions  added  to  it,  or  simply 
to  have  the  record  supplemented  thereby,  is  not  entirely 


Mar.  1905.]  Casto  v.  Murray.  59 

clear.  But  in  either  view,  we  are  of  the  opinion  that  the 
motion  ought  not  to  be  allowed.  If  either  party  require 
it,  the  charge  of  the  court  must  be  given  in  writing,  and 
when  so  given  it  must  also  be  filed  with  the  clerk  (B.  &  C. 
Oorap.  §  132,  subd.  6),  and,  being  so  filed,  it  becomes  a 
part  of  the  record  in  the  case.  Oral  instructions  appar- 
ently were  not  designed  to  be  thus  incorporated  in  the 
record.  It  is  the  office  of  the  bill  of  exceptions  to  embody 
a  statement  of  the  events  and  holdings  of  the  court  during 
the  progress  of  the  trial  and  in  the  submission  of  the  cause 
to  the  jury,  and  it  is  only  by  this  method  that  a  record  of 
the  trial  is  made  up.  All  matters  hot  otherwise  required 
by  law  to  be  made  a  part  of  the  files  and  record  in  the 
case  are  required  thus  to  be  certified,  or  else  the  appellate 
court  cannot  take  cognizance  of  them :  Farrell  v.  Oregon 
Gold  Co.,  31  Or.  463,  473(49  Pac.  876),  and  cases  cited. 

2.  Hence  it  may  r.eadily  be  seen  that  the  certified  oral 
instructions  with  which  it  is  sought  to  have  the  record 
now  supplemented  are  not  pertinent  for  that  purpose, 
because  not  a  part  of  the  record  of  the  trial  court;  and 
much  less  are  they  a  part  of  the  bill  of  exceptions,  because 
not  incorporated  therein.  It  is  the  province  of  the  trial 
court,  in  a  proper  case,  to  correct,  antl  if  necessary  sup- 
plement, the  bill  of  exceptions;  and,  when  so  corrected 
and  supplemented,  this  court  will  require  that  it  be  sent 
up  so  that  the  cause  may  be  fully  and  fairly  presented  for 
determination:  State  ex  rel.  v.  Estes,  34  Or.  196,  204  (52 
Pac.  571);  Block  v.  SammonSy  37  Or.  600  (55  Pac.  438,  62 
Pac.  290);  Nosier  v.  Coos  Bay  Nav.  Co.,  40  Or.  305,  308 
(63  Pac.  1050).  But,  unless  the  matter  is  in  some  regular 
course  incorporated  in  or  made  part  of  the  record  in  the 
case,  it  is  not  entitled  to  be  filed  or  considered  here.  The 
motion  is  therefore  denied.  Motion  Overruled. 


60  Casto  v.  Murray.  [47  Or. 

Decided  81  July,  1005. 

On  the  Merits. 

Statement  by  Mr.  Justice  Moore. 

This  is  an  action  by  Samuel  Casto  against  Emma  Mur- 
ray, T.  E.  Strong  and  C.  D.  Crookham,  to  recover  the  pos- 
session of  a  horse.  The  complaint,  so  far  as  deemed  ma- 
terial, is  as  follows : 

'*That  on  or  about  the  15th  day  of  July,  1903,  William 
Murray  was  the  owner  and  in  possession  of  one  chestnut 
colored  stallion,  named  Diablo,  [and  keeping  him  in  the 
stud  at  the  fair  ground  near  Salem,  in  Marion  County,  Ore- 
gon; and  at  said  date  said  Murray  employed  said  plaintiff 
to  care  for  and  attend  said  stallion,  and  said  plaintiff  en- 
tered into  the  possession  of  said  stallion,  and  thereafter, 
under  said  employment,  gave  him  all  necessary  care  and 
attention]  until  the  death  of  the  said  William  Murray, 
which  occurred  on  or  about  the  21st  day  of  August,  1903, 
at  the  City  of  Salem,  Oregon ;  [and  that  thereafter  said 
plaintiff  continued  in  the  possession  of  said  stallion,  and 
cared  for  him,  and  gave  him  all  necessary  attention  in  the 
stud  I,  until  on  or  about  the  26th  day  of  August,  1903,  when 
said  defendant  Emma  Murray,  widow  of  said  William  Mur- 
ray, then  deceased,  and  claiming  to  be,  and  who  was,  the 
sole  heir  at  law  of  said  decedent,  and  claiming  to  be,  and 
who  was,  the  sole  owner  of  said  stallion,  made  and  entered 
into  an  agreement  with  said  plaintiff,  by  which  the  said 
plaintiff  was  to  keep  and  care  for  said  stallion  in  the  stud 
for  the  season  ending  the  15th  of  August,  1904,  upon  the 
following  terms  and  conditions,  to  wit." 

The  terms  of  the  contract  are  then  set  out  and  it  is 
alleged  that  plaintiff  duly  kept  them.    It  is  also  alleged  : 

"[That  on  and  prior  to  the  26th  day  of  January,  1904, 
and  for  a  long  time  prior  thereto,  the  said  plaintiff  was, 
ever  since  has  been,  and  now  is,  the  special  owner  of, 
and  entitled  to  the  immediate  possession  of,  said  stallion, 
named  Diablo,  under  and  pursuant  to  the  terms  and  con- 
ditions of  said  contract  made  and  entered  into  by  and 


July,  1905.]  Casto  v,  Murray.  61 

between  said  plaintiff  and  said  defendant  Emma  Murray, 
as  hereinbefore  alleged]." 

It  is  further  stated  that  on  said  26th  day  of  January, 
1904,— 

"The  said  defendants  wrongfully  and  unlawfully  took 
said  stallion  from  the  possession  of  said  plaintiff  at  said 
fair  ground  near  the  City  of  Salem,  in  Marion  County, 
Oregon,  and  ever  since  have  and  do  now  wrongfully  and 
unlawfully  withhold  and  detain  the  same  from  the  posses- 
sion of  plaintiff  in  said  Marion  County,  Oregon." 

The  complaint  then  states  the  damages  plaintiff  claims 
to  have  sustained  in  consequence  of  such  taking  and  with- 
holding the  possession  of  the  horse.  The  court,  upon  mo- 
tion, struck  from  the  complaint  the  parts  thereof  included 
within  brackets  as  hereinbefore  indicated. 

The  answer  denies  the  material  allegations  of  the  com- 
plaint, and  for  a  further  defense  avers  that  ever  since 
Murray's  death  the  stallion  has  been  apd  is  the  property 
of  the  decedent's  estate ;  that  on  March  25,  1904,  the  de- 
fendant Mrs.  Murray  was  duly  appointed  administratrix 
of  such  estate,  and,  having  qualified,  she  is  entitled  to  the 
possession  of  the  horse.  As  a  second  separate  defense,  it 
is  alleged  that  at  and  prior  to  the  making  of  the  alleged 
contract  with  plaintiff  Mrs.  Murray,  in  consequence  of 
grief  occasioned  by  the  death  of  her  husband,  was  ill  in 
body  and  mind,  and  so  continued  until  January,  1904, 
and  that  by  reason  of  such  sorrow  she  was  unable  to  un- 
derstand or  transact  business,  of  which  fact  the  plaintiff 
then  well  knew.  A  demurrer  to  each  of  the  separate  an- 
swers, on  the  ground  that  neither  stated  facts  sufficient 
to  constitute  a  defense  to  the  complaint,  was  overruled, 
whereupon  a  reply  was  filed  denying  the  averments  of 
new  matter  in  the  answer,  and  a  trial,  being  had,  resulted 
in  a  judgment  for  the  defendants  dismissing  the  action, 
and  plaintiff  appeals.  Affirmed. 


.62  Casto  v.  Murray.  [47  Or. 

For  appellant  there  was  a  brief  with  oral  arguments  by 
Mr.  WilKam  Marion  Kaiser  and  Mr.  Woodson  Taylor  Slater. 

For  respondent  there  was  a  brief  with  oral  arguments 
by  Mr.  John  A.  Carson  and  Mr.  Anderson  M.  Cannon. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

3.  It  is  contended  that  William  Murray  delivered  the 
stallion  to  plaintiff,  whose  possession  thereof  forms  the 
basis  of  his  right,  and  that  by  striking  from  the  complaint 
the  averments  in  relation  thereto  an  error  was  committed. 
It  is  argued  that  such  possession  is  supplemented  by,  but 
not  dependent  upon,  the  contract  entered  into  with  Mrs. 
Murray,  which  agreement  was  consummated  to  prevent  her 
from  obtaining  possession  of  the  horse  in  case  she  should 
be  appointed  administratrix  of  the  decedent's  estate.  If 
the  averments  of  the  complaint,  as  prepared,  can  be  con^ 
strued  as  basing  plaintiff's  right  of  action  upon  the  posses- 
sion of  the  stallion  which  he  secured  from  William  Murray, 
the  legal  principal  insisted  upon  is  probably  applicable; 
for  the  rule  is  quite  general  that  bare  possession  of  per- 
sonal property,  though  the  title  thereto  may  be  in  another, 
affords  the  better  right  to  the  continued  control  thereof,  as 
against  mere  trespassers,  or  persons  who  show  no  privity 
with  the  owner :  Lewis  v.  Birdsey,  19  Or.  164  (26  Pac.  623); 
Danielson  v.  Roberts,  44  Or.  108  (74  Pac.  913, 65  L.  R.  A.  526, 
102  Am.  St.  Rep.  627);  Woolfork'sAdm'rv.  Sullivan,  28  AIsl. 
548  (58  Am.  Dec.  305);  Wheeler  v.  McCorristen,  24  111.  40; 
Van  Namee  v.  Bradley ,  69  111.  299;  Cummins  v.  Holmes,  109 
111.  15;  Culleny,  O^Harra,  4  Mich.  132;  Van  Baalen  v.  Dean, 
27  Mich.  104;  Andersonv.  GouJd6erflf,51  Minn.294(53N.  W. 
636). 

4.  The  complaint,  in  our  opinion,  is  not  susceptible  to 
the  construction  invoked,  for  plaintiff's  right  to  the  pos- 
session of  the  stallion  is  evidently  based  on  the  contract 
alleged  to  have  been  entered  into  with  Mrs.  Murray.    It 


July,  1905.]  Casto  v.  Murray.  63 

will  be  remembered  that  plaintiff  avers  be  was  employed 
by  William  Murray  to  care  for  the  stallion.  If  the  word 
"employed,"  as  thus  used,  was  intended  to  mean  that 
plaintiff  was  engaged  to  perform  certain  labor,  the  relation 
created  between  Murray  and  him  was  that  of  master  and 
servant,  which  was  severed  by  the  employer's  death  ;  there 
being  no  averment  that  the  contrary  was  stipulated  by  the 
terms  of  the  agreement:  20  Am.  &  Eng.  Enc.  Law  (2  ed.), 
45.  If,  however,  the  word  "employed"  was  used  to  express 
the  creation  of  an  agency  coupled  with  an  interest,  so  that 
plaintiff's  right  to  the  continued  possession  of  the  stallion 
extended  after  the  death  of  the  principal,  that  fact  is  not 
alleged  in  the  complaint.  It  is  stated  therein  that  Mrs. 
Murray,  on  the  death  of  her  husband,  became  the  owner 
of  the  horse,  and,  plaintiff  having  alleged  that  he  entered 
into  a  contract  with  her  whereby  he  was  to  keep  and  care 
for  the  stallion,  he  theoretically  surrendered  the  possession 
of  the  property  to,  and  secured  a  new  right  from,  her. 

5.  The  averment  of  obtaining  possession  of  the  horse 
from  William  Murray  was  evidently  intended  to  state  the 
fact  by  way  of  inducement,  leading  up  to  and  explaining 
the  subsequent  contract  alleged  to  have  been  entered  into 
with  Mrs.  Murray,  upon  which,  in  our  opinion,  the  right 
of  recovery  is  predicated.  As  the  matter  thus  alleged  was 
immaterial  (Gardner  V.  JIfc  Williams^  42  Or.  14, 69  Pac.  915), 
no  error  was  committed  in  striking  it  from  the  complaint, 
or  in  refusing  to  receive  testimony  offered  by  plaintiff 
tending  to  show  that  he  secured  possession  of  the  horse 
from  William  Murray. 

6.  It  is  contended  that  the  court  erred  in  striking  from 
the  complaint  the  averment  of  plaintiff's  special  ownership 
of  the  stallion,  and  of  his  right  to  the  possession  thereof 
at  the  commencement  of  the  action.  In  an  action  under 
our  statute  of  claim  and  delivery,  which  is  the  common- 
law  remedy  of  replevin,  the  complaint  must  show  that  the 


64  Casto  v.  Murray.  [47  Or. 

plaintiff  is  entitled  to  the  possession  of  the  personal  prop- 
erty in  question  when  the  action  was  commenced :  Kim- 
ball V.  Redjield,  33  Or.  292  (54  Pac.  216);  Simonds  v.  Wright- 
man,  36  Or.  120  (58  Pac.  1100). 

7  After  eliminating  the  part  of  the  complaint  now  under 
consideration,  the  remaining  averments  state  the  contract 
alleged  to  have  been  entered  into  with  Mrs.  Murray,  and 
show  that  before  the  expiration  of  the  time  specified  in 
the  agreement  the  defendants  unlawfully  took  possession 
of  the  horse.  As  this  action  was  instituted  prior  to  August 
15, 1904,  and  during  the  time  plaintiff  was  entitled  to  keep 
the  stallion  as  alleged,  a  right  to  the  immediate  possession 
thereof  is  disclosed  by  reasonable  presumption,  without  a 
special  averment  to  that  effect.  It  is  not  necessary  to 
allege  a  fact  which  the  law  will  presume,  and,  this  being 
so,  we  think  that,  after  striking  from  the  complaint  the 
clause  in  question,  the  remaining  allegations  show  that 
plaintiff  was  entitled  to  the  possession  of  the  stallion  when 
this  action  was  commenced,  and  hence  no  error  was  com- 
mitted as  alleged. 

8.  It  is  insisted  that  an  error  was  committed  in  over- 
ruling the  demurrer  interposed  to  that  part  of  the  answer 
alleging  the  title  to  the  property  as  being  in  the  estate 
of  William  Murray,  deceased,  and  of  the  appointment  of 
Mrs.  Murray  as  administratrix  of  such  estate,  subsequent 
to  the  taking  of  the  possession  of  the  stallion  from  plain- 
tiff. Upon  the  death  of  any  person  intestate  in  this  State, 
possessed  of  tangible  goods  and  effects,  such  property 
passes  by  operation  of  law  to  his  personal  representative, 
who  is  entitled  to  the  possession  thereof  until  the  admin- 
istration is  completed  (B.  &  C.  Comp.  §  1147),  and  from 
whom  only  the  title  thereto  can  be  derived  in  pursuance  of 
orders  made  by  the  county  court  of  the  proper  county  in 
due  course  of  administration  :  Winkle  v.  Winkle^  8  Or.  193  ; 
Weider  v.  Osborn,  20  Or.  307  (25  Pac.  715);  In  re  John's 


July,  1905.]  Casto  v.  Murray.  65 

Will,  30  Or.  494  (47  Pac.  351,  50  Pac.  226, 36  L.  R.  A.  242); 
State  V.  O'Day,  41  Or.  495  (69  Pac.  542).  Mrs.  Murray  was 
not  the  owner  of  the  stallion,  as  stated  in  the  complaint, 
if  the  word  '^owner,"  as  there  used,  means  the  holder  of 
the  legal  title.  If  some  other  person  had  been  appointed 
administrator  of  her  husband's  estate,  her  right  to  the 
possession  of  the  stallion,  after  such  appointment,  would 
have  been  no  greater  than  that  of  a  mere  stranger:  Cullen 
V.  O'Hara,  4  Mich.  132. 

In  speaking  of  the  right  of  action  in  respect  to  the  per- 
sonal property  of  a  decedent,  Mr.  Chief  Justice  Knowlton, 
in  Flynn  v.  Flynn,  183  Mass.  365  (67  N.  E.  314),  says: 
"Not  even  the  sole  heir  at  law,  or  legatee,  has  any  title 
which  he  can  enforce  by  suit  against  a  third  person." 
An  exception  to  the  rule  last  stated  would  probably  exist 
where  an  heir,  who  had  lawfully  taken  possession  of  the 
goods  or  chattels  of  an  intestate,  was  deprived  thereof  by 
a  wrongdoer,  in  which  case  the  bare  possession  would 
ordinarily  be  a  sufficient  title  to  authorize  the  mainte- 
nance of  an  action  of  replevin  to  recover  the  property. 
As  the  title  to  the  goods  and  chattels  of  a  person  dying 
intestate  vests  in  the  administrator  upon  his  appoint- 
ment, in  trust,  however,  for  the  purposes  of  administra- 
tion and  distribution,  there  must  be,  in  the  orderly  trans- 
action of  probate  business,  an  interval  of  time  after  the 
death  of  the  intestate  when  the  title  to  such  property  nec- 
essarily rests  in  abeyance,  pending  the  appointment  of  an 
administrator:  Jewett  v.  Smith,  12  Mass.  309;  Cullen  v. 
O'Haray  4  Mich.  132;  Lawrence  v.  Wright,  23  Pick.  128. 
To  bridge  over  such  period,  a  legal  fiction  has  been 
adopted  to  the  effect  that  the  granting  of  letters  of  ad- 
ministration relates  back  to  the  time  of  the  death  of  the 
intestate,  authorizing  the  administrator,  when  duly  quali- 
fied, to  maintain  and  defend  suits  and  actions  for  injuries 

47  Ob.  —  5 


66  Casto  v.  Murray.  [47  Or. 

to  the  personal  property  of  the  intestate,  or  for  interfer- 
ence with  the  possession  thereof,  occurring  after  such 
death  and  prior  to  the  appointment  of  a  personal  repre- 
sentative :  11  Am.  &  Eng.  Enc.  Law  (2  ed.),  908  ;*  1  Woer- 
ner,  Am.  Law  of  Administration  (2  ed.),  173;  Hutchins^ 
AdmW  V.  Adams,  3  Greenl.  174;  Gerard  v.  Jones,  78  Ind. 
378 ;  Brackett  v.  Hoitty  20  N.  H.  257;  Cook  v.  Cook,  24  S.  C. 
204. 

Though,  to  prevent  injustice  and  the  occurrence  of  in- 
juries, where  otherwise  there  would  be  no  remedy,  the 
title  to  personal  property  of  which  an  intestate  died  pos- 
sessed vests  by  relation  in  the  administrator  when  ap- 
pointed (  Wilson  V.  Wilson,  54  Mo.  213),  such  taking  of  the 
title  cannot  make  wrongful  the  intervening  possession 
of  the  heirs,  whose  duty  it  is  to  take  possession  of  and 
preserve  the  property  until  an  administrator  can  be  ap- 
pointed :  Hardy  v.  Wallis,  103  111.  App.  141.  The  doctrine 
of  title  by  relation  has  no  application,  however,  to  wrong- 
ful acts  of  a  person  who,  to  the  prejudice  of  a  third  party, 
officiously  intermeddles  with  the  goods  and  chattels  of 
an  intestate  before  he  is  appointed  administrator  of  the 
latter's  estate  (Bellinger  v.  Ford,  21  Barb.  311);  but  the 
granting  of  letters  of  administration  legalizes  all  acts, 
otherwise  valid,  that  have  been  done  by  the  adminis- 
trator before  his  appointment:  Cook  v.  Cook,  24  S.  C.  204. 
Title  by  relation,  upon  principle,  must  be  limited  to  valid 
acts  done  in  respect  to  the  goods  and  chattels  of  a  de- 
ceased by  a  person  prior  to  his  appointment  as  adminis- 
trator, and  is  tantamount  to  ratification.  If  such  doctrine 
were  extended  further,  it  might  result  in  imposing  upon 
the  estate  of  a  decedent  liability  for  the  torts  of  a  person 
committed  after  the  death  of  the  intestate  and  prior  to  the 
appointment  of  the  wrongdoer  as  administrator  of  such 
estate. 


July,  1905.]  Casto  v.  Murray.  67 

In  actions  of  claim  and  delivery,  the  primary  relief 
sought  is  the  recovery  of  the  possession  of  personal  prop- 
erty ;  but,  if  that  cannot  be  secured,  the  alternative  relief 
to  which  the  plaintiff  is  entitled  is  the  value  of  the  goods 
or  chattels  taken  or  withheld,  or  of  his  special  property 
therein.  If  the  right  of  a  plaintiff  to  the  possession  of 
personal  property  has  been  extinguished,  after  the  taking 
or  withholding  thereof  by  another,  an  action  of  replevin 
by  the  former  to  recover  the  damages  sustained  by  rea- 
son of  the  tort  is  not  the  proper  remedy.  So,  too,  the 
right  of  a  defendant  in  an  action  of  claim  and  delivery 
must  be  determined  as  of  the  day  when  the  action  is  com- 
menced; for,  though  such  party  may  have  wrongfully 
taken  or  unlawfully  detained  the  goods  or  chattels  from 
the  owner,  or  from  the  person  having  a  special  property 
therein,  if  such  title  has  been  transferred  to  the  defend- 
ant before  the  action  is  instituted,  replevin  will  not  lie. 
In  the  case  at  bar,  William  Murray  having  died  intes- 
tate, leaving  a  widow  and  no  issue,  she  is  entitled  to  the 
residue  of  his  personal  property  after  the  payment  of  the 
debts  of  the  decedent  and  the  charges  and  expenses  of 
administration  upon  his  estate:  B.  &  C.  Comp.  §  5578. 
She  was,  therefore,  directly  interested  in  such  estate  ( Siate 
V.  flenAfe,  45  Or.  430,  78  Pac.  325),  and  it  was  incumbent 
upon  her  to  take  possession  of  the  personal  property  be- 
longing thereto  until  an  administrator  could  be  appointed: 
Hardy  v.  Wallis,  103  111.  App.  141 ;  Pritchard  v.  Norwood, 
155  Mass.  539  (30  N.  E.  80). 

It  is  alleged  in  the  complaint  that  Mrs.  Murray  and  her 
codefendants,  who  are  her  brother  and  brother-in-law, 
respectively,  unlawfully  took  possession  of  the  horse  Jan- 
uary 26, 1904.  The  answer  shows  that  she  was  appointed 
administratrix  of,  her  husband's  estate  March  25,  1904. 
It  is  nowhere  stated  in  the  pleadings,  however,  that  she 
by  any  means  secured  a  transfer  from   plaintiff  of  his 


68  Casto  V,  Murray.  [47  Or. 

special  property  in  the  horse.  If  Mrs.  Murray  unlaw- 
fully took  such  possession,  as  alleged  in  the  complaint,  the 
seizure  was  a  tort,  and'  the  title  which  she  subsequently 
acquired  by  being  appointed  administratrix  of  her  hus- 
band's estate  would  not  relate  back  to  his  death,  so  as  to 
validate  her  act  in  this  respect,  if  it  was  wrongful.  If, 
however,  the  taking  of  such  possession  was  lawful  and  to 
the  benefit  of  the  estate,  the  title  to  the  horse,  which  she 
subsequently  secured,  related  back  to  her  husband's  death, 
and  could  be  pleaded  as  a  defense  to  the  action  of  replevin, 
not  because  she  acquired  a  new  title  after  the  action  was 
commenced,  but  because  she  had  authority  in  her  own 
right,  as  the  next  of  kin,  to  take  such  possession  at  the 
time  it  was  obtained.  The  answer  denied  the  alleged 
wrongful  taking  of  the  horse,  and  for  a  first  separate  de- 
fense averred  Mrs.  Murray's  appointment  as  administra- 
trix of  her  husband's  estate.  The  theory  of  the  defense, 
as  thus  outlined,  is  tantamount  to  an  admission  that  the 
possession  of  the  horse  was  taken  from  plaintiff,  but  that 
such  taking  was  lawful.  If  so,  her  subsequent  title  by  ap- 
pointment as  administratrix  related  back  to  the  time  of 
her  husband's  death  ;  but,  if  unlawful,  she  could  not  bind 
the  estate  by  her  act,  and  the  doctrine  of  title  by  relation 
could  not  be  invoked.  The  defense  of  a  subsequent  title 
necessarily  hinged  upon  the  nature  of  the  possession  taken 
by  the  defendants,  and,  as  the  denials  in  the  answer  fairly 
present  the  question  of  a  lawful  taking,  the  first  separate 
defense  alleged  was  not  vulnerable  to  demurrer,  in  over- 
ruling which  no  error  was  committed. 

It  follows  from  these  considerations  that  the  judgment 
should  be  affirmed,  and  it  is  so  ordered.         Affirmed. 


July,  1905.]      •     Peterson  v.  Creason.  69 

Argued  20  June,  decided  17  July,  1905. 
PETERSON  V.  CREASON. 

81  Pac.  574. 

Parol.  Evidence— Written  Contract. 

1.  Where  a  mortgagee  of  certain  property  orally  agreed  to  Indemnify  a  pur- 
chaHer  of  a  part  thereof  against  certain  Judgment  llenR  in  consideration  of  his 
purchasing  and  paying  the  consideration  to  such  mortgagee,  whereupon  the  pur- 
chaser took  a  deed  fk'om  the  owners,  the  mortgagee  not  being  a  party  thereto, 
but  releasing  his  mortgage  as  to  the  property  purchased,  parol  evidence  of  the 
indemnity  contract  was  not  objectionable  as  contradicting  the  deed  and  release. 

Statute  of  Frauds  — Orioinal  and  Collateral  Undertakinghs. 

2.  An  oral  agreement  by  a  mortgagee  to  indemnify  a  purchaser  of  a  portion 
of  the  property  mortgaged  against  Judgment  liens  for  a  present  consideration 
passing  to  such  mortgagee,  Is  an  original  undertaking,  and  not  within  the  statute 
of  fhfcuds. 

Limitation  of  Action  on  Indemnity  Contract. 

8.  A  right  of  action  under  a  contract  to  indemnify  against  loss  or  injury  from 
certain  money  demands  does  not  accrue  until  the  person  indemnified  suffers 
some  loss  fh>m  such  demands. 

From  Douglas  :  James  W.  Hamilton,  Judge. 

Statement  by  Mr.  Justice  Bean. 

This  is  a  suit  by  Peter  Peterson  against  C.  J.  Creason,  to 
enforce  an  indemnity  contract.  The  facts  are  these:  In 
April,  1894,  Edward,  George  and  Rose  Bushey  were  the 
joint  owners  of  a  large  tract  of  land  near  the  City  of  Rose- 
burg,  which  was  mortgaged  to  David  Grenot  for  about 
$7,000.  The  Busheys  desired  to  lay  off  a  part  of  the  land 
into  town  lots  for  sale.  Grenot  objected  on  the  theory 
that  he  would  thereby  lose  from  the  lien  of  his  mortgage 
the  land  covered  by  the  proposed  streets  and  alleys.  In 
order  to  satisfy  him  and  obtain  his  consent  to  the  platting 
of  the  property,  about  10  acres  of  the  platted  portion  was 
not  subdivided  into  lots,  but  was  marked  on  the  recorded 
plat  or  map  as  '^Reserved,"  it  being  understood  orally  be- 
tween the  Busheys  and  Grenot  that  the  land  so  marked 
should  be  reserved  as  additional  security  to  Grenot.  Soon 
after  the  laying  off  of  the  property,  judgments  were  ob- 
tained against  the  Busheys  by  Thompson  and  Josephson 
for  about  $900,  and  they  were  dul}'  docketed.    Thereafter, 


70  Peterson  v.  Creason.  [47  Or. 

and  in  August,  1896,  the  plaintiff  purchased  about  three 
acres  of  the  land  marked  '^Reserved*'  on  the  map  or  plat 
for  $1,000.  The  negotiations  for  the  purchase  were  had 
with  Grenot  and  Buick,  agent  for  the  Busheys.  Grenot 
agreed,  in  consideration  of  the  payment  to  him  of  the 
purchase  price,  to  release  the  property  from  the  lien  of 
his  mortgage,  and  to  indemnify  and  save  harmless  the 
plaintiff  from  the  lien  of  the  Thompson  and  Josephson 
judgments.  The  plaintiff,  relying  upon  this  agreement 
and  promise  of  Grenot,  accepted  the  deed  from  the  Bush- 
eys, and  paid  to  Grenot  the  entire  purchase  price,  and 
Grenot  released  his  mortgage  as  stipulated,  but  failed  and 
neglected  to  protect  the  plaintiff  from  the  judgment  liens, 
and  on  account  thereof  he  was  compelled  to  and  did  pay, 
in  November,  1899,  $900,  in  order  to  protect  his  title. 
Grenot  died,  leaving  a  large  amount  of  property,  which 
descended  to  the  defendant,  and  on  account  thereof  this 
suit  is  prosecuted  against  her  on  the  indemnity  contract. 
The  defendant  had  a  decree  in  the  court  below,  and  the 
plaintiff  appeals.  Reversed. 

For  appellant  there  was  a  brief  with  oral  arguments  by 
Mr,  William  WiUhire  Car  dwell  and  Oliver  Perry  Coshow. 

For  respondent  there  was  a  brief  with  oral  arguments 
by  Mr.  Andrew  Murray  Crawford  and  Mr.  Frank  William^ 
son  Benson, 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

To  support  the  decree  of  the  court  below  the  defendant 
contends :  (1)  That  evidence  to  prove  a  contract  by  Grenot 
to  protect  the  plaintiff  from  the  Thompson  and  Josephson 
judgmentliens  was  incompetent  and  inadmissible,  because 
it  tended  to  vary  or  contradict  a  written  contract ;  (2)  that 
the  indemnity  contract  was  not  in  writing,  and  therefore 
void  under  the  statute  of  frauds ;  and  (3)  the  suit  is  barred 
by  the  statute  of  limitations. 


July,  1905.]  Peterson  v.  Creasok.  71 

1.  It  is  argued  that  there  can  be  no  proof  of  the  terms  of 
the  contract  under  which  plaintiff  purchased  and  acquired 
title  to  the  property  in  question,  except  the  deed  from  the 
Busheys  and  the  release  by  Grenot  of  his  mortgage,  and 
that  all  oral  negotiations  or  agreements  are  merged  in 
these  two  instruments.  But  neither  of  them  was  intended' 
to  contain  the  terms  of  the  contract  with  Grenot  by  which 
he  agreed  to  release  his  mortgage  and  to  protect  the  plain- 
tiff against  the  judgment  liens.  He  was  not  a  party  to  the 
Bushey  deed,  and  if  it  had  contained  such  a  stipulation,  it 
would  not  have  been  binding  on  him.  The  release  by  him 
of  his  mortgage  was  made  in  pursuance  of  his  contract  and 
in  part  performance  thereof.  It  was  not  designed  to  con- 
tain the  contract,  or  any  of  its  terms.  The  contract  was 
that  in  consideration  of  the  payment  to  him  of  $1,000, 
the  purchase  price  of  the  property,  he  would  release  his 
mortgage,  and  also  indemnify  and  protect  the  plaintiff 
against  the  judgment  liens.  This  agreement  was  inde- 
pendent of  the  deed  from  the  Busheys  and  of  the  release 
of  the  mortgage  by  Grenot,  and  was  not  in  writing. 

2.  Whether  a  contract  between  two  persons,  whereby 
one  agrees  to  protect  or  save  harmless  the  other  against 
liability  to  or  the  claim  of  some  other  person  is  within  the 
statute  of  frauds,  and  void  unless  in  writing,  has  been  the 
subject  of  much  discussion  by  the  courts  and  text-writers 
since  the  cases  of  Thomas  v .  Cook,  8  B.  &  C.  728,  and  Green 
v.  Cresswell^  10  Adolph.  &  E.  153.  The  able  and  exhaustive 
opinion  of  Mr.  Justice  Wolverton  on  this  question  in  Rose 
v.  Wollenberg,  31  Or.  269  (44  Pac.  382,  39  L.  R.  A.  378,  65 
Am.  St.  Rep.  826),  renders  unnecessary  its  further  exam- 
ination at  this  time.  It  is  sufficient  for  the  present  pur- 
poses, as  he  points  out,  that  where  the  promisor  has  a 
"personal,  immediate,  or  pecuniary'*  interest  in  the  trans- 
action, and  the  inducement  for  his  promise  is  a  benefit  to 
him,  the  contract  is  not  within  the  statute,  and  the  courts 


72  Peterson  v.  Creason.  [47  Or. 

will  give  effect  to  the  promise,  although  not  in  writing. 
In  such  case  the  contract  is  an  original,  and  not  a  collat- 
eral, undertaking.  It  is  not  the  promise  of  one  person  to 
answer  for  the  default  or  miscarriage  of  another,  but  is, 
in  substance,  the  original  contract  of  the  promisor :  16 
Am.  &  Eng.  Enc.  Law  (2  ed.),  169;  Davis  v.  Patrick,  141 
U.  S.  479  (7  Sup.  Ct.  1102,  30  L.  Ed.  1090);  Kutzmeyer  v. 
Ennis^  27  N.  J.  Law,  371;  and  the  authorities  cited  in  Rose 
V.  Wollenberg.  Within  this  rule  the  promise  of  Grenot 
to  protect  and  save  plaintiff  harmless  from  the  Thompson 
and  Josephson  judgment  liens  was  clearly  valid.  It  was 
a  promise  made  by  him  for  his  benefit,  and  the  consid- 
eration moved  to  him.  By  reason  of  such  promise  he 
obtained  the  puichase  price  of  the  land,  and  therefore  re- 
ceived a  benefit  which  he  otherwise  would  not  have  en- 
joyed. He  was  not  a  stranger  to  the  transaction,  agreeing 
to  discharge  the  obligations  of  some  other  party.  He  had 
an  immediate  and  personal  interest  in  the  sale  of  the  land 
by, the  Busheys  to  the  plaintiff.  Without  it  he  would  not 
have  received  the  *1,000,  which  he  was  very  anxious  to 
obtain,  and  his  promise  to  indemnify  and  save  plaintiff 
harmless  from  the  judgment  liens  would  not  have  been 
made.  He  was  therefore  the  party  to  be  benefited  by  the 
performance  of  the  contract.  The  making  of  his  promise 
was  to  subserve  a  pecuniary  and  present  interest  of  his  own, 
and  is  therefore  valid. 

3.  The  agreement  was  not,  however,  to  warrant  and  de- 
fend the  title  to  the  land  purchased  by  the  plaintiff,  nor 
was  it  to  pay  or  discharge  the  judgment  liens.  But  it  was 
to  indemnify  and  save  plaintiff  harmless  from  any  injury 
or  damage  he  might  suffer  by  reason  of  such  liens.  The 
cause  of  action  on  the  contract  therefore  did  not  accrue 
at  once,  and  could  not  until  plaintiff  was  in  some  way 
injured  by  its  breach.  This  did  not  occur  until  he  was 
entitled  to  bring  and  prosecute  an  action  thereon,  and  that 


July,  1905.]         McClung  v.  McPherson.  73 

was  only  when  he  was  compelled  to  pay  the  lien  to  save 
his  property  {Rowsey  y.  Lynch,  61  Mo.  560),  and  is  there- 
fore not  barred  by  the  statute  of  limitations. 

The  decree  of  the  court  will  be  reversed,  and  one  en- 
tered here  in  favor  of  the  plaintiff.  Reversed. 


Ai-gaed  20  June,  decided  17  July,  rehearing  denied  28  August,  1905. 
KcGLXma  V.  KcPHEBSON. 

81  Pac  597,  82  Pac.  18. 

» 
Trial  by  Court— Time  for  Submitting  Propositions. 

1.  Section  184,  B.  A  C.  Gomp.,  providing  that  any  party,  when  the  evidence  is 
closed,  may  submit  in  distinct  and  concise  propositions  the  conclusions  of  &ct 
which  he  claims  to  be  established,  or  the  conclusion  of  law  which  he  desires  to 
be  adjudged,  or  both,  does  not  apply  to  a  trial  of  an  Issue  of  fact  by  the  court 
alone,  and  hence  a  demand  for  additional  conclusions  of  fact  made  before  the 
entry  of  Judgment  on  the  findings  is  not  too  late. 

APPKAIi  — OONCL.U8IVKNB88  OF  FINDINGS  BY  COURT. 

2.  Where  a  case  is  tried  without  a  Jury,  the  court's  findings  of  fact  are  like  a 
special  verdict,  and  will  be  disturbed  on  appeal  only  when  the  evidence  is  Insuf- 
ficient as  a  matter  of  law  to  support  the  conclusions  of  fact. 

Appeal  ~ Effect  of  Exception  to  Findings  and  Conclusion. 

8.  Where  a  case  is  tried  to  the  court  alone,  and  there  is  no  conflict  in  the  tes- 
timony, but  in  consequence  of  a  misapplication  of  the  law  an  error  Is  committed 
in  the  findings  of  fact,  an  exception  to  such  conclusion  and  a  request  for  other 
findings  will  bring  up  for  review  the  action  of  the  court  in  denying  the  applica- 
tion. 

Landlord  and  Tenant  — Sale  of  Leased  Premises— Who  May  Give 
Notice  to  Quit. 

4.  A  stipulation  in  a  lease  reserving  to  the  lessor  the  right  to  terminate  the 
lease,  if  the  property  shall  be  sold,  by  giving  a  specified  notice  of  the  sale  and 
of  a  desire  to  resume  possession  of  the  premises,  operates  as  a  covenant  running 
with  the  land,  and  authorizes  the  grantee  to  so  terminate  the  lease,  though  the 
word  "assigns"  does  not  appear  in  the  written  instrument;  but  such  a  clause 
also  operates  to  reserve  to  the  original  lessor  the  right  to  give  the  prescribed 
notice  after  the  delivery  of  a  deed  thereto. 

Effect  of  Notice  to  Move  or  Pay  Increased  Rent. 

5.  A  notice  by  alandlord  to  a  tenant  that  unless  he  vacates  the  premises  the 
rent  will  be  a  stated  amount  other  than  that  reserved  by  the  lease  is  ineffectual 
for  any  purpose. 

Notice  to  Quit  by  Attorney  or  Agent. 

0.  A  notice  to  quit  may  be  given  by  an  authorized  agent  or  attorney,  and  a 
fiiilure  to  object  to  a  notice  signed  by  attorneys  when  offered  is  a  waiver  of  that 
objection  thereto. 

Special  Direction  on  Reversing  Judgment. 

7.  When  the  trial  court  sitting  as  a  Jury  has  erred  in  the  law,  and  the  facts  are 
undisputed,  the  Judgment  may  be  reversed  with  special  directions  as  to  the  pro- 
ceedings, rather  than  to  hold  a  new  trial. 


74  McClung  V,  McPherson.  ,  [47  Or. 

Premature  Action— Abatement— Waiver  of  Objection. 

8.  An  objection  that  an  action  to  recover  possession  of  land  was  prematurely 
brought,  and  should  be  dismissed,  because  of  plain tiflTs  failure  to  serve  a  notice 
legally  sufficient  to  terminate  defendant's  tenancy  of  the  premises  in  question, 
must  be  raised  by  plea  in  abatement,  and  is  waived  by  answering  to  the  merits. 

Writings  Signed  by  Agent— Need  of  Proving  Authority. 

9.  Where  the  validity  of  a  private  writing,  purporting  to  have  been  signed 
by  an  agent  on  behalf  of  his  principal,  is  challenged,  the  document  is  not  admis- 
sible in  evidence  without  express  or  Implied  proof  of  the  agent's  authority. 

Waiver  of  Defect  in  Evidence  by  Not  Objecting. 

10.  A  defect  in  the  form  or  sufficiency  of  writings  offered  in  evidence  Is  waived 
unless  objected  to  when  the  evidence  Is  offered.  Thus:  Failure  of  a  tenant  to 
object  to  the  Introduction  in  evidence  of  a  notice  to  quit  signed  by  his  landlord's 
attorneys  concedes  the  attorneys'  authority  to  sign  the  notice. 

Province  of  Court  to  Construe  Written  Evidence. 

11.  When  written  evidence  is  offered  it  becomes  the  duty  of  the  court  to  deter- 
mine its  sufficiency,  and  the  admission  of  the  writing  without  objection  is  a 
waiver  of  formal  objections  only. 

Requisites  of  Notice  to  Quit. 

12.  Under  B.  A  C.  Comp.  g  5756,  requiring  a  notice  to  be  in  writing  and  served 
upon  the  tenant,  or  left  at  the  premises,  such  notice  must  be  in  writing,  and 
should  describe  the  premises  with  reasonable  certainty  for  Identification,  and 
require  the  tenant  to  remove  therefrom  on  a  specified  day. 

From  Multnomah:    Alfred  F.  Sears,  Jr.,  Judge. 

This  action  was  commenced  by  J.  H.  McClung  against 
W.  E.  McPherson  in  a  justice's  court  of  Multnomah  County 
to  recover  the  possession  of  certain  real  property,  and, 
the  cause  being  at  issue  and  tried,  plaintiff  secured  the 
judgment.  An  execution  was  issued  thereon,  and  the  de- 
manded premises  delivered  to  plaintiff,  whereupon  the 
defendant  appealed  from  such  judgment  to  the  circuit 
court  for  that  county,  which,  without  a  jury,  tried  the 
cause,  and  made  findings  of  fact  as  follows: 

*'(1)  That  on  April  16,  1904,  the  date  of  commencing 
this  action,  the  defendant,  W.  E.  McPherson,  was  in  pos- 
session of  the  following  described  premises,  to  wit,  that 
certain  building  commonly  called  and  known  as  the  Tre- 
mont  House,  situated  on  part  of  lot  1,  in  block  50,  Couch's 
Addition  to  the  City  of  Portland,  Multnomah  County, 
State  of  Oregon. 

(2)  That  said  defendant  did  not  on  April  16,  1904,  the 
date  of  commencing  this  action,  and  ever  since  does  not, 
unlawfully  hold  the  same  with  force  from  said  plaintiff. 


July,  1905.]         McClung  v.  McPhkrson.  75 

(3)  That  said  plaintiff  is  not  entitled  to  the  immediate  or 
any  possession  thereof. 

(4)  That  defendant  was  removed  from  the  possession  of 
said  premises  April  25, 1904,  by  Victor  Howard,  appointed 
to  make  service  of  execution  issued  in  this  case  by  William 
Reid,  Justice  of  the  Peace  for  Portland  District,  Multno- 
mah County,  State  of  Oregon,  and  the  plaintiff  on  said 
April  25, 1904,  was  put  in  the  possession  of  said  premises 
under  said  execution  by  said  officer." 

As  conclusions  of  law  the  court  also  found,  in  effect, 
that  defendant  was  entitled  to  a  judgment  reversing  the 
one  given  in  the  justice's  court  in  this  action,  and  for  his 
costs  and  disbursements,  and  that  he  was  further  entitled 
to  a  judgment  for  the  restitution  of  the  premises  in  ques- 
tion, and  that  execution  issue  therefor.  Thereafter  plain- 
tiff's counsel  excepted  to  the  findings  so  made,  requested 
the  court  to  make  others,  and  also  moved  for  a  new  trial. 
These  objections  and  applications  having  been  severally 
overruled  and  denied,  judgment  was  given  in  accordance 
with  the  findings  as  made,  and  plaintiff  appeals. 

Reversed. 

For  appellant  there  was  a  brief  with  oral  arguments  by 
Mr.  Hayward  Howard  RiddelL  Mr,  Schuyler  Colfax  Spencer^ 
Mr.  William  Melvin  Davisy  and  Mr.  Martin  Luther  Pipes. 

For  respondent  there  was  a  brief  over  the  names  of 
Claude  Strahan  and  Ralph  Roloefson  Duniway^  with  an  oral 
argument  by  Mr.  Duniway. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

1.  It  is  contended  by  plaintiff's  counsel  that  the  court 
erred  in  refusing  to  find  the  facts  as  requested.  It  is  main- 
tained by  defendant's  counsel,  however,  that  the  request 
for  other  findings  was  not  made  within  the  time  prescribed, 
and  that  those  demanded  were  not  warranted  by  the  evi- 
dence. The  statute  invoked  by  defendant's  counsel  in  sup- 
port of  the  legal  principle  insisted  upon  is  as  follows: 


76  McClung  v.  McPherson.  [47  Or. 

"Any  party  may,  when  the  evidence  is  closed,  submit  in 
distinct  and  concise  propositions,  the  conclusions  of  fact 
which  he  claims  to  be  established,  or  the  conclusion  of 
law,  which  he  desires  to  be  adjudged,  or  both.  They  may 
be  written  and  handed  to  the  court,  or,  at  the  option  of  the 
court,  oral,  and  entered  in  the  judge's  minutes":  B.  &  C. 
Comp.  §  134.  This  section  is  incorporated  in  the  chapter 
of  the  Code  of  this  State  relating  to  the  conduct  of  a  trial 
by  jury.  The  submission  of  an  issue  of  fact  to  the  court 
alone  for  trial  is  equivalent  to  a  demand  for  a  special  ver- 
dict, which  necessitates  a  finding  on  every  material  issue 
involved.  As  no  request  for  findings  on  such  issues  is 
necessary,  if  the  court  should  fail  to  make  any  thereon, 
a  party  would  not  be  precluded  from  demanding  them 
because  he  did  not  submit  the  conclusions  of  fact  which 
he  claimed  were  established  when  the  evidence  was  closed. 
In  the  case  at  bar  judgment  on  the  findings  had  not  been 
given  when  the  court  was  requested  to  make  other  find- 
ings. In  our  opinion,  the  section  of  the  statute  adverted 
to  is  not  applicable  to  a  trial  of  an  issue  of  fact  by  the  court 
alone,  and,  this  being  so,  the  demand  for  other  conclusions 
of  fact  was  made  in  ample  time. 

2.  When  a  cause  is  tried  without  a  jury,  the  findings  of 
fact  made  by  the  court  are  like  a  special  verdict  {Kyle  v. 
Rippy,  19  Or.  186,  25  Pac.  141),  and  will  be  disturbed  only 
when  the  evidence  is  insufficient,  as  a  matter  of  law,  to 
support  the  conclusions  of  fact :  Good  v.  Smith,  44  Or.  578 
(76  Pac.  354);  Gorman  v.  McGowan,  44  Or.  597  (76  Pac. 
769). 

3.  In  such  case,  if  there  is  no  conflict  in  the  testimony, 
but  in  consequence  of  the  misapplication  of  the  law  thereto 
an  error  is  committed  in  the  findings  of  fact,  an  exception 
to  such  conclusion  and  a  request  for  other  findings  will 
bring  up  for  review  the  action  of  the  court  in  denying  the 
application  :  Fulton  v.  Earhart^  4  Or.  61 ;  Hicklin  v.  McClear, 


July,  1905.]         McClung  v.  McPherson.  77 

18  Or.  126  (22  Pac.  1057);  Wheeler  v.  Burckhardt,  34  Or.  504 
(56  Pac.  644). 

All  the  evidence  introduced  at  the  trial  in  the  circuit 
Courtis  incorporated  in  the  bill  of  exceptions,  which  shows 
that  on  October  29,  1903,  the  Savings  &  Loan  Society,  a 
corporation,  was  the  owner  in  fee  of  the  premises  herein- 
before described,  which  on  that  day  it  leased  to  the  defend- 
ant for  a  term  of  two  years  at  1100  per  month,  payable 
monthly  in  advance  on  the  first  day  of  each  month.  The 
material  covenants  of  the  lease  are  as  follows : 

''And  it  is  understood  and  agreed  that  said  lessee,  at  the 
expiration  of  said  term,  or  upon  any  sooner  determination 
of  this  lease,  will  quit  and  deliver  up  the  premises  and  all 
future  additions  thereto  to  the  lessor  or  its  agent,  peace- 
ably and  quietly.  ♦  ♦  And  it  is  further  understood  and 
agreed,  that  as  a  part  of  the  consideration  for  making  this 
lease,  the  lessor  reserves  the  right  to  terminate  this  lease 
at  any  time  in  case  it  should  sell  said  leased  property  by 
giving  said  lessee  sixty  (60)  days'  notice  in  writing  of  such 
sale  and  its  intention  to  terminate  said  lease.  And  said 
lessee  hereby  covenants  and  agrees  to  quit  and  deliver  up 
said  leased  premises  at  the  expiration  of  sixty  (60)  days 
from  the  giving  of  said  notice  in  writing  of  the  sale  of  said 
premises  and  the  lessor's  intention  to  terminate  said  lease. 

Provided  Always,  and  this  lease  is  made  upon  this  con- 
dition, that  if  the  said  rent  shall  be  in  arrears  for  the  space 
of  five  (5)  days  after  the  same  has  become  due,  as  herein- 
before provided,  or  if  the  said  lessee,  his  successors  or 
assigns,  shall  fail  or  neglect  or  fail  to  perform  or  observe 
any  of  the  covenants  and  conditions  hereinbefore  men- 
tioned and  contained  on  his  part  to  be  performed,  then 
and  in  either  of  said  cases  the  said  lessor  or  its  agent  may 
immediately  or  at  any  time  thereafter,  and  while  such 
neglect  or  default  continues,  without  further  notice  or 
demand  enter  into  said  leased  building  or  any  part  thereof, 
in  the  name  of  the  whole,  and  repossess  the  same  as  of  its 
former  estate,  and  expel  the  said  lessee,  or  those  claiming 
under  him,  and  remove  his  or  their  effects,  forcibly,  if 
necessary,  without  being  taken  or  deemed  guilty  in  any 


78  McClung  V,  McPhkrson.  [47  Or. 

manner  of  trespass,  and  without  abridging  any  of  the  rem- 
edies which  might  otherwise  be  used  for  any  arrears  of 
rent  or  preceding  breach  of  covenant." 

The  lessor,  on  January  28,  1904,  for  the  expressed  con- 
sideration of  $22,500,  conveyed  the  demised  premises  to 
plaintiff,  and  at  the  same  time  also  assigned  to  him  the 
lease  and  all  rights  and  privileges  thereunder.  This  deed 
was  recorded  February  3, 1904,  and  thereafter,  but  on  the 
same  day,  the  following  notice  was  served  upon  the  de- 
fendant : 

"Portland,  Oregon,  January  28,  1904. 
To  W.  E.  McPherson  : 

You  are  hereby  notified  that  the  Savings  &  Loan  Soci- 
ety, of  San  Francisco,  California,  a  corporation,  has  sold 
lot  1,  in  block  50,  Couch's  Addition  to  the  City  of  Port- 
land, Multnomah  County,  Oregon,  and  intends  to  termi- 
nate the  lease  made  to  you  of  the  'Tremont  House,'  situ- 
ated on  a  part  of  lot  1,  in  block  50,  in  Couch's  Addition  to 
the  City  of  Portland,  Multnomah  County,  Oregon.  You 
are  notified  to  quit  and  deliver  up  the  said  leased  prem- 
ises to  the  said  Savings  &  Loan  Society,  or  its  assigns, 
within  60  days  from  the  date  of  the  service  of  this  notice 
upon  you. 

(Corporate)  Savings  &  Loan  Society, 

I     «^i-    >  By  Arthur  A.  Smith,  President." 

The  possession  of  the  premises  not  having  been  surren- 
dered as  demanded,  the  following  notice  was  served  upon 
the  defendant  the  day  it  bears  date,  to  wit: 

"To  W.  E.  McPherson : 

Take  notice  that  you  are  hereby  required  to  quit  and 
deliver  up  to  me,  the  undersigned,  the  possession  of  the 
premises  now  held  and  occupied  by  you,  being  commonly 
called  The  Tremont  House,  situate  on  part  of  lot  1,  block  50, 
Couch's  Addition  to  the  City  of  Portland,  Multnomah 
County,  State  of  Oregon,  at  the  expiration  of  ten  days 
from  the  date  of  the  service  of  this  notice  upon  you.  This 
is  intended  as  a  ten  days'  notice  to  quit  as  provided  by  the 
laws  of  the  State  of  Oregon.    If  you  do  not  deliver  up  to 


July,  1905.]         McClung  v,  McPherson.  79 

me  the  possession  of  said  premises,  as  required  by  this 
notice,  I  shall  institute  legal  proceedings  against  you  to 
recover  the  possession  of  said  premises. 

Yours  truly,  J.  H.  McClung,  Landlord, 

By  Spencer  &  Davis,  Attorneys. 
Portland,  Oregon,  April  5th,  '04.'' 

The  defendant  not  having  complied  with  the  require- 
ment of  these  notices,  this  action  was  commenced  to  secure 
the  possession  of  the  premises.  The  bill  of  exceptions  also 
shows  that  on  February  3, 1904,  when  the  first  notice  was 
served  on  the  defendant,  he  paid  plaintiff's  agent  ^100  as 
rent  for  that  month,  but  that  he  never  made  or  tendered 
any  further  payments  on  account  thereof. 

The  court  refused  to  make  findings  as  requested  by 
plaintiff's  counsel,  which  may  be  summarized  as  follows : 
(1)  That  on  February  3,  1904,  and  subsequent  thereto, 
the  defendant,  as  plaintiff's  tenant,  was  in  possession  of 
the  Tremont  House  in  pursuance  of  the  lease  executed 
by  the  Savings  &  Loan  Society.  (2)  That  on  February  3, 
1904,  the  defendant  paid  plaintiff  the  sum  of  ^100  as  rent 
for  that  month.  (3)  That  on  April  16, 1904,  when  this  ac- 
tion was  instituted,  the  defendant,  as  plaintiff's  tenant,  con- 
tinued in  possession  of  the  demanded  premises.  (4)  That 
on  April  16, 1904,  the  defendant  was  indebted  to  plaintiff 
in  the  sum  of  1100  for  the  rent  of  the  Tremont  House  for 
March,  1904.  (5)  That  on  April  5,  1904,  the  defendant 
was  served  with  a  notice  signed  by  Spencer  &  Davis,  attor- 
neys for  plaintiff.  (6)  That  defendant  has  not  paid  plain- 
tiff any  rent  for  the  use  of  the  premises  since  February  3, 
1904,  and  all  the  rent  accruing  since  March  1, 1904,  is  past 
due  and  wholly  unpaid.  (7)  That  on  February  3,  1904, 
plaintiff  caused  to  be  served  on  defendant  the  notice  signed 
by  the  Savings  &  Loan  Society.  (8)  That  on  February  3, 
1904,  plaintiff  caused  to  be  served  on  defendant  a  notice 
signed  by  himself,  setting  out  what  purports  to  be  a  copy 


80  McClung  V,  McPherson.  [47  Or. 

thereof,  requiring  the  defendant  to  deliver  the  possession 
of  the  premises  to  him.  As  conclusions  of  law  the  court 
was  requested,  but  refused,  to  find  that  plaintiff  was  enti- 
tled to  a  judgment  affirming  the  judgment  given  in  this 
action  in  the  justice's  court,  with  costs  and  disbursements ; 
that  he  is.  and  since  the  commencement  of  this  action  has 
been,  entitled  to  the  possession  of  the  Tremont  House. 

The  bill  of  exceptions  shows  that  the  evidence  intro- 
duced to  prove  the  eighth  finding  of  fact  requested  by 
plaintiff's  counsel  is  controverted  by  the  defendant,  who 
testified  that  when  the  notice  given  by  the  Savings  &  Loan 
Society  was  delivered  to  him  February  3,  1904,  no  notice 
purporting  to  have  been  signed  by  plaintiff,  his  agent  or 
attorney,  was  tendered  him.  One  of  the  grounds  on  which 
the  circuit  court  based  its  findings  of  fact  is  that  the  notice 
served  on  the  defendant  to  determine  the  tenancy  was 
given  in  the  name  of  the  Savings  &  Loan  Society  after  it 
had  conveyed  to  plaintiff  the  legal  title  to  the  leased  prem- 
ises, and  for  this  reason  it  wAs  held  that  such  notice  was 
ineffectual  for  any  purpose:  The  court  having  made  the 
conclusion  of  facts  to  which  exceptions  were  taken,  im- 
pliedly found  that  plaintiff  did  not  give  to  defendant  any 
notice  to  determine  the  tenancy,  though  one  of  plaintiff's 
witnesses  testified  that  at  the  time  the  notice  signed  by 
the  Savings  &  Loan  Society  was  served  he  also  delivei*ed 
to  the  defendant  a  notice  to  which  he  subscribed  plaintiff's 
name  as  his  agent.  The  findings  of  fact  made  by  a  court 
in  the  trial  of  an  action  at  law,  without  a  jury,  are  equiv- 
alent to  a  special  verdict,  and  not  subject  to  review  on  ap- 
peal, if  such  conclusions  are  supported  by  any  competent 
evidence :  McKay  v.  Freeman^  6  Or.  449 ;  Hallock  v.  Port- 
land, 8  Or.  29 ;  Williams  v.  Oallick,  11  Or.  337  (3  Pac.  469); 
Astoria  Ry,  Co.  v.  Kern,  44  Or.  538  (76  Pac.  14).  The  im- 
plied finding  that  plaintiff  did  not  serve  on  the  defendant 
a  notice  to  determine  the  tenancy,  being  based  on  testi- 


July,  1905.]         McClung  v,  McPherson.  81 

mony,  the  trial  court  was  the  exclusive  judge  of  the  weight 
thereof,  and  its  determination  in  this  respect  cannot  be 
reviewed  on  appeal,  thus  preventing  a  consideration  of 
the  eighth  finding  of  fact  requested  by  plaintiff ^s  counsel, 
though  we  are  of  the  opinion  that  the  court  should  have 
found  either  one  way  or  the  other  on  this  disputed  ervidence. 
4.  The  preliminary  matter  having  been  eliminated,  we 
come  to  the  consideration  of  the  question  whether  or  not, 
under  the  peculiar  covenants  of  the  lease,  the  Savings 
&  Loan  Society,  after  it  had  parted  with  the  legal  title  to 
the  demised  premises,  could,  in  its  own  name,  give  to  the  de- 
fendant a  notice  which  would  be  sufficient  to  determine  the 
tenancy.  The  stipulation  whereby  the  corporation  reserved 
the  right  to  terminate  the  lease  at  any  time  it  might  sell 
the  real  property  by  giving  60  days'  notice  in  writing 
of  such  sale  and  of  its  intention  to  sever  the  relation  of 
landlord  and  tenant  manifests  a  purpose  to  create  a  cove- 
nant that  would  run  with  the  reversion,  authorizing  its 
grantee  to  terminate  the  lease,  though  the  word  **assigns" 
does  not  appear  in  the  written  agreement :  Hadley  v.  Ber- 
nero,  97  Mo.  App.  314  (71  S.  W.  451).  A  conveyance  of 
leased  premises  without  reservation  carries  with  it,  by 
operation  of  law,  the  grantor's  right  to  terminate  the  ten- 
ancy {Roberts  v.  McPherson,  62  N.  J.  Law,  165,  40  Atl.  630), 
which  may  be  done  by  a  notice  to  quit  given  in  the  name 
of  the  landlord:  2  Taylbr,  Land.  &  Ten.  (9  ed.),  §  479; 
Reeder  v.  Sayre,  70  N.  Y.  180  (26  Am.  Rep.  567).  Where 
the  lessor,  who  reserves  the  right  to  terminate  a  lease  by 
giving  a  specified  notice,  conveys  the  demised  premises, 
he  cannot  thereafter  give  in  his  own  name  a  notice  to  the 
lessee  which  will  be  effectual  to  terminate  the  tenancy: 
Griffin  v.  Barton,  22  N.  Y.  Misc.  Rep.  228  (49  N.  Y.  Supp. 
1021).  The  rule  to  be  extracted  from  text-books  relating 
to  landlord  and  tenant,  and  from  the  opinions  of  judges 

47  Or.  —  6 


82  McClung  v.  McPherson.  [47  Or. 

of  courts  of  last  resort  who  have  considered  this  subject, 
would  seem  to  lead  to  the  conclusion,  when  applied  to  the 
case  at  bar,  that,  the  leased  premises  having  been  con- 
veyed to  plaintiff,  he  thereby  became  the  landlord,  and 
was  authorized  to  give  in  his  own  name  a  notice  to  the 
defendant  which  would  have  been  adequate  to  terminate 
the  lease.  As  a  corollary  resulting  from  the  legal  principle 
thus  announced  it  would  also  seem  necessarily  to  follow, 
though  not  involved  herein,  and  referred  to  only  by  way 
of  illustration,  that,  as  the  covenant  in  the  lease  whereby 
the  tenancy  could  be  terminated  is  not  personal,  but  runs 
with  the  reservation,  plaintiff  took  the  title  to  the  real  prop- 
erty cum  onere,  and  could  not  sever  the  relation  existing 
between  the  parties,  unless  he  also  sold  the  premises  and 
gave  the  required  notice  in  his  own  name  before  he  deliv- 
ered the  deed. 

In  an  action  to  recover  the  possession  of  real  property 
upon  a  termination  of  a  lease  containing  a  covenant  au- 
thorizing the  landlord  to  determine  the  tenant's  estate  in 
the  premises  by  a  sale  thereof  it  might  be  extremely  diffi- 
cult for  the  plaintiff  in  such  action  to  prove  the  bona  fides 
of  the  sale  until  the  deed  evidencing  a  transfer  of  the  title 
was  actually  delivered,  and  thus  the  tenant  would  at  all 
times  during  the  term  possess  the  power  to  prevent  or  frus- 
trate a  termination  of  the  lease.  In  the  case  at  bar  we 
believe  a  fair  coastruction  of  the  language  of  the  covenant 
under  consideration,  when  viewed  in  the  light  of  the  con- 
sequences assumed,  induces  the  conclusion  that  the  Sav- 
ings &  Loan  Society  reserved  to  itself  the  right  to  terminate 
the  lease  upon  the  sale  of  the  premises,  and  to  give  the 
notice  thereof  in  its  own  name  after  the  delivery  of  the 
deed.  The  right  which  the  rules  of  law  gave  the  defend- 
ant to  have  the  notice  to  terminate  the  lease  issued  in  the 
name  of  the  landlord  was  a  benefit  in  which  the  public 
was  not  interested,  and  therefore  he  could  waive  such  priv- 


July,  1905.]         McGlung  v.  McPherson.  83 

ilege.  We  believe  the  defendant,  by  accepting  the  lease 
containing  the  covenant  adverted  to,  expressly  waived  the 
right  to  which  he  was  entitled,  and  stipulated  that,  in  case 
of  the  sale  of  the  property  during  the  term,  the  Savings 
&  Loan  Society  might  issue  in  its  own  name  a  notice  to 
determine  his  estate  in  the  premises,  notwithstanding  the 
corporation  might  deliver  the  deed  evidencing  a  transfer 
of  the  title  before  it  gave  such  notice.  Considering  this 
branch  of  the  case,  we  believe  an  error  was  committed  in 
applying  the  law  to  the  facts  involved,  which  ai*e  undis- 
puted, and  that  the  court  should  have  made  a  finding  in 
accordance  herewith,  as  requested. 

5.  It  is  argued  by  defendant's  counsel  that  if  the  notice 
given  by  the  Savings  &  Loan  Society  in  its  own  name, 
after  it  had  conveyed  the  premises  to  plaintiff  was  suflB- 
cient  to  terminate  the  lease,  a  new  tenancy  from  year  to 
year  was  created  by  the  service  of  the  following  notice: 

*Tortland,  Oregon,  April  1,  1904. 
To  W.  E.  McPherson : 

You  are  hereby  notified  that  from  and  after  the  5th  day 
of  April,  1904,  that  I  will  charge  and  collect  from  you  the 
sum  of  twenty  ($20)  dollars  a  day  as  rent  for  what  is  com- 
monly called  and  known  as  the  Tremont  House,  situated 
on  part  of  lot  one  (1)  in  block  fifty  (50)  in  Couch's  Addi- 
tion to  the  City  of  Portland,  Multnomah  County,  Oregon. 
I  am  the  owner  of  this  real  estate,  together  with  the  Tre- 
mont House,  situated  thereon,  and  this  is  the  amount  that 
I  have  concluded  to  charge  and  collect  from  you  if  you 
continue  to  occupy  said  premises  from  and  after  the  5th 
day  of  April,  1904. 

J.  H.  McClung. 
By  Spencer  &  Davis,  his  attorneys." 

The  point  thus  insisted  upon  is,  in  our  opinion,  with- 
out merit,  for  the  defendant  does  not  base  his  right  to  the 
possession  of  the  premises  by  a  tenancy  at  will,  created 
by  the  givirtg  of  the  notice  last  quoted,  but  he  relies  upon 


84  McClung  v.  McPherson.  [47  Or. 

the  original  lease,  asserting  that  his  tenancy  is  not  termi- 
nated by  reason  of  the  notice  not  having  been  signed  by 
the  proper  party.  The  defendant,  it  is  true,  after  he  was 
notified  that  the  rent  would  be  $20  a  day,  continued  in 
possession  of  the  Tremont  House  until  April  25,  1904, 
when  he  was  evicted  in  pursuance  of  the  execution  issued 
out  of  the  justice's  court  on  the  judgment  given  in  this 
action.  The  defendant  does  not  appear  to  have  changed 
his  position  in  consequence  of  the  service  of  the  notice 
last  above  quoted,  so  as  to  evidence  the  creation  of  a  new 
contract  for  the  payment  of  rent  at  the  rate  of  $600  a 
month,  when  he  had  only  been  paying  one  sixth  of  that 
sum.  If  the  retention  of  the  possession  of  the  leased 
premises  by  the  defendant  after  the  expiration  of  the  time 
specified  in  such  notice  could  be  construed  into  an  agree- 
ment to  pay  the  rent  therein  stated,  as  would  be  implied 
by  the  creation  of  a  tenancy  from  year  to  year,  the  plain- 
tiff could  as  well  have  charged  $200  a  day  for  the  use  of 
the  premises  as  the  sum  named.  If  a  landlord,  in  a  notice 
to  quit,  could  specify  the  rent  demanded  as  a  penalty  for 
retaining  the  possession  of  leased  premises,  he  could  name 
such  an  exorbitant  sum  as  would  necessarily  bankrupt  most 
tenants.  To  adopt  such  theory  would  be  giving  to  plain- 
tiff's counsel  credit  for  creating  a  novel  method  of  excluding 
a  tenant.  The  notice  relied  upon  to  create  a  tenancy  from 
year  to  year  was  ineffectual  for  any  purpose,  and  it  was 
evidently  so  treated  by  the  defendant. 

6.  It  will  be  remembered  that  a  notice  to  which  the 
plaintiff's  name  was  evidently  subscribed  by  his  attorneys 
was  served  on  the  defendant  April  5, 1904,  requiring  him 
to  quit  and  deliver  up  the  possession  of  the  premises  at 
the  expiration  of  10  days  from  the  date  of  the  service 
thereof.  It  is  maintained  by  defendant's  counsel  that,  as 
no  evidence  was  offered  tending  to  show  that  plaintiff's 
attorneys  were  authorized  to  give  a  notice  to  quit  in  the 


Aug.  1905.]         McClung  v.  McPherson.  85 

name  of  their  client,  no  error  was  committed  in  render- 
ing the  judgment  from  which  this  appeal  is  taken.  The 
law  is  well  settled  that  a  notice  to  quit  may  be  given  by 
the  landlord  or  by  his  agent  or  attorney,  but  when  given 
by  either  of  the  latter  it  must  be  by  an  agent  who  has 
authority  to  let  the  premises  or  has  special  authority  to 
give  the  notice:  2  Taylor,  Land.  &  Ten.  (9  ed.),  §  480; 
Felton  v.  Millard,  81  Cal.  540  (21  Pac.  533,  22  Pac.  750); 
Mizner  v.  Munroe,  10  Gray,  290;  Pickard  v.  Perley,  45  N.  H. 
188  (86  Am.  Dec.  153).  Whatever  the  rule  may  be,  how- 
ever, it  cannot  be  invoked  in  the  case  at  bar,  for  no  objec- 
tion to  the  introduction  of  the  notice  was 'made  when  it  was 
offered  in  evidence,  the  adverse  party  thereby  conceding 
that  plaintiff's  attorneys  were  authorized  to  subscribe  his 
name  thereto;  so  that,  if  such  notice  was  required,  it  was 
suflBcient. 

7.  Errors  having  been  committed,  the  judgment  of  the 
circuit  court  is  reversed,  and,  there  being  no  conflict  in 
the  evidence,  the  cause  is  remanded,  with  directions  to 
make  findings  of  fact  and  conclusions  of  law  as  herein 
indicated,  and  to  render  judgment  thereon  affirming  the 
decision  of  the  justice's  court.  Reversed. 


Decided  28  August,  1906. 

On  Motion  for  Rehearing. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

8.  A  petition  for  a  rehearing  having  been  filed,  it  is 
insisted  by  defendant's  counsel  that  in  the  former  opinion 
a  legal  principle  for  which  they  contend  was  overlooked, 
to  wit:  That  as  the  lease  under  which  the  defendant  held 
the  premises  provided  that  the  sum  of  1100,  as  rent,  should 
be  paid  in  advance  on  the  1st  of  each  month,  and  also  stip- 
ulated that  in  case  of  a  sale  of  the  real  property  a  notice 
of  60  days  should  be  given  to  determine  the  tenancy,  and 


86  McClung  v.  McPherson.  [47  Or. 

as  the  notice  given  by  the  Savings  &  Loan  Society  was 
served  on  the  defendant  February  3,  1904,  no  action  to 
recover  the  possession  of  the  land  could  have  been  main- 
tained until  the  end  of  a  rent  period  then  next  ensuing 
after  the  expiration  of  the  time  specified  in  the  notice,  or 
prior  to  May  1  of  that  year,  but,  this  action  having  been 
commenced  April  16,  1904,  the  notice  was  insufficient. 
The  doctrine  invoked  is  to  the  effect  that  a  notice  to  deter- 
mine a  tenant's  estate  in  real  property  must  require  him 
to  quit  the  demised  premises  at  the  end  of  one  of  the  recur- 
ring periods  of  holding:  2  Taylor,  Land.  &  Ten.  (8  ed.), 
§  477;  Baker  v.  Adams^  5  Cush.  99;  Hendry  v.  Squier,  126 
Ind.  19  (25  N.  E.  830,  9  L.  R.  A.  798);  Dix  v.  Atkins,  130 
Mass:  171;  Hart  v.  Lindley,  50  Mich.  20  (14  N.  W.  682); 
Steffens  v.  Earl,  40  N.  J.  Law,  128  (29  Am.  Rep.  214); 
FinkeUtein  v.  Herson,  55  N.  J.  Law,  217  (26  Atl.  688). 
Whether  or  not  such  a  rule  is  applicable  in  this  State  is 
not  deemed  necessary  to  a  decision  herein  ;  for,  if  the 
principle  is  controlling,  it  was  waived  by  the  defendant. 
The  point  now  insisted  upon  amounts  to  no  more  than  an 
objection  that  the  action  was  prematurely  brought,  and 
hence  it  should  be  dismissed.  If  so,  the  defendant's  rem- 
edy was  to  interpose  a  plea  in  abatement ;  but,  not  having 
done  so,  his  answer  to  the  meritis  relinquished  the  right, 
if  it  exists :  Winter  v.  Norton,  1  Or.  43;  Hopwood  v.  Patter- 
son, 2  Or.  49;  Derkeny  v.  Belfils,  4  Or.  258;  Chamberlain  v. 
Hibbard,  26  Or.  428  (38  Pac.  437). 

9.  It  is  also  argued  that  the  burden  was  imposed  upon 
plaintiff  to  prove  what  notice  was  given  to  terminate  the 
lease  and  to  authorize  the  bringing  of  this  action  ;  that  per- 
mitting the  notice,  to  which  plaintiff's  name  was  evidently 
subscribed  by  his  attorneys,  to  be  offered  in  evidence, 
without  objection,  did  not  admit  its  sufficiency  ;  and  that 
the  distinction  between  the  competency  of  evidence  and 
the  legal  effect  thereof  was  not  maintained  by  this  court. 


Aug.  1905.]         McClung  v.  McPherson.  87 

The  rule  is  quite  general  that  where  the  validity  of  a  pri- 
vate writing,  purporting  to  have  been  signed  by  an  agent 
on  behalf  of  his  principal,  is  challenged,  the  document  is 
not  admissible  in  evidence  without  proof  of  the  agent's 
authority,  express  or  implied :  Fadner  v.  Hibler,  26  111. 
App.  639;  Swaine  v.  Maryott,  28  N.  J.  Eq.  589;  Darst  v. 
Doom,  38  111.  App.  397. 

10.  Where,  however,  the  adverse  party  permits  such 
paper  to  be  offered  in  evidence  without  interposing  an  ob- 
jection, he  thereby  admits  the  agenVs  authority.  Thus,  in 
Bartlett  v.  O'Donoghue,  72  Mo.  563,  it  was  held  that  the  fail- 
ure of  a  party  to  object  to  the  admission  in  evidence  of  an 
unacknowledged  deed  conceded  its  execution,  the  court 
saying:  "The  failure  of  the  defendant  to  object  to  the 
introduction  of  this  instrument  in  evidence,  when  offered, 
would  dispense  with  any  proof  of  its  execution,  but  it  could 
not  impart  to  it  any  efficacy  as  a  conveyance  which  it 
would  not  otherwise  have.  Being  admitted  in  evidence  as 
a  genuine  instrument,  signed  by  the  parties  named  therein 
as  grantors,  its  legal  effect  was  still  to  be  determined,  as 
much  so  as  if  it  had  been  objected  to  when  offered."  So, 
too,  in  Lowe  v.  Bliss,  24  111.  168  (76  Am.  Dec.  742),  a  prom- 
issory note  having  been  received  in  evidence,  Mr.  Justice 
Walker,  in  referring  thereto.,  said  :  "When  the  defendant 
permitted  it  to  be  read  without  objection,  he  must  be  held 
to  have  admitted  that  it  was  in  evidence,  and  that  it  was 
duly  executed,  but  not  that  it  was  sufficient  evidence  to 
warrant  a  recovery."  In  Birney  v.  Haira,  2  Litt.  262,  it 
was  held  that,  when  a  deed  was  offered  in  evidence  pur- 
porting to  have  been  executed  by  trustees  of  a  town,  the 
person  against  whom  it  was  offered  might  object  to  its 
being  read  without  proof  that  they  were  trustees,  but  that 
moving  the  court,  after  it  had  been  read,  to  instruct  the 
jury  that  nothing  passed  by  the  deed,  was  not  the  way  to 
take  advantage  of  the  want  of  such  evidence. 


88  Dark  v.  Guaranty  Loan  Assoc.  [47  Or. 

11.  Permitting  the  introduction  of  evidence  unchal- 
lenged does  not  admit  it  to  be  legally  sufficient  for  the 
purpose  for  which  it  was  offered  :  State  v.  Kaufman,  45 
Mo.  App.  656.  In  the  case  at  bar,  the  failure  of  the  de- 
fendant to  object  to  the  introduction  in  evidence  of  the 
notice  signed  by  plaintiff's  attorneys  concedes  their  author- 
ity to  subscribe  his  name  to  the  writing ;  but  it  does  not 
admit  the  sufficiency  of  the  document,  which  it  was  the 
province  of  the  court  to  determine  and  is  the  only  question 
involved  on  this  branch  of  the  case. 

12.  A  notice  to  quit  must  be  in  writing:  B.  &  C.  Comp. 
§  5756.  It  should  describe  the  premises  with  reasonable 
certainty  for  identification  and  require  the  tenant  to  re- 
move therefrom  on  a  specified  day :  Gear,  Land.  &  Ten. 
§  191;  Taylor,  Land.  &  Ten.  (8  ed.),  §  483.  An  examina- 
tion of  the  notice  served  upon  the  defendant  April  5, 1904, 
will  show  that  it  complies  with  these  several  requirements, 
and  was,  therefore,  legally  sufficient. 

Believing  that  the  former  opinion  correctly  states  the 
law  applicable  to  the  facts  involved,  we  adhere  thereto. 
Reversed:  Rehearing  Denied. 


Argued  22  June,  decided  17  July,  rehearing  denied  28  August,  1905. 
DABB  V.  GUARANTY  LOAN  ASSOC. 

81  Pac.  565. 

BuiiiDiNG  AND  Loan  Association  — Complaint  in  Suit  for  Cancella- 
tion OF  Mortgaue. 

1.  A  complaint  in  a  suit  to  cancel  a  mortgage  for  usury,  on  the  theory  that 
the  mortgagee  was  a  hulldlng  and  loan  aHNOoiation,  wliich  shows  merely  that 
defendant  is  a  corporation,  that  plaintiff  executed  and  delivered  to  it  a  certain 
mortgage  by  which  he  promised  to  pay  it  a  specified  sum  with  interest  at  a  given 
rate  and  a  monthly  premium,  the  two  amounting  to  more  than  the  highest  legal 
interest,  with  certain  dues  on  sundry  shares  in  said  association,  is  not  sufflclent, 
since  it  does  not  thereby  appear  that  the  defendant  is  a  building  and  loan 
association  at  all,  or  an  organization  having  an  unlawful  plan  ot  operation,  or 
that  plaintiff  owned  the  stock  on  which  he  paid  monthly  assessments,  thus 
not  showing  any  Intent  or  conduct  in  violation  of  the  interest  laws. 


July,  1905.]    Dark  v.  Guaranty  Loan  Assoc.  89 

Pleading  Facts— Omitting  Ck)NCLUSioNS. 

2.  A  pleading  should  state  the  facts  on  which  the  pleader  relies,  leaving  the 
conclusions  to  be  deduced  as  matters  of  law.  For  instance,  an  allegation  that 
the  pleader  had  repaid  in  full  a  certain  loan.  Is  merely  a  statement  of  a  conclu- 
sion, the  dates  and  amounts  of  the  payments  should  have  been  set  out. 

RuLK  FOR  Construing  Pleadings. 

8.  A  pleading  should  be  construed  against  the  pleader  in  case  of  doubt,  when 
considered  on  demurrer. 

From  Multnomah :  Melvin  C.  George,  Judge. 

This  is  a  suit  by  I.  G.  Darr  against  the  Guaranty  Savings 
&  Loan  Association  and  others  to  cancel  a  mortgage.  The 
complaint  alleges  the  incorporation  of  the  defendants  the 
Guaranty  Savings  &  Loan  Association  and  the  State  Insti- 
tution for  Savings  ;  that  the  latter  claims  some  interest  in 
the  realty  involved  ;  that  defendant  Guesmer  claims  to  be 
the  assignee  of  the  mortgage  in  question ;  that  plaintiff  is 
the  owner  of  certain  real  property  (describing  it): 

"That  on  or  about  March  1,  1895,  plaintiff  executed  to 
defendant  Guaranty  Savings  &  Loan  Association  a  non- 
negotiable  first  mortgage  bond,  by  which  he  agreed  to  pay 
said  defendant  $900,  with  interest  at  the  rate  of  6  per  cent 
per  annum,  interest  payable  monthly,  also  premium  at  the 
rate  of  7  per  cent  per  annum,  payable  monthly,  and  60  cents 
per  month  as  dues  on  each  of  9  shares  in  said  defendant 
company,  and  also  plaintiff  executed  to  said  defendant 
Guaranty  Savings  &  Loan  Association  a  nonnegotiable 
mortgage  by  which  he  mortgaged  to  said  defendant  the 
aforesaid  property  to  secure  the  payment  of  the  said  $900, 
premium  and  interest,  according  to  the  tenor  of  the  above- 
described  nonnegotiable  first  mortgage  bond,  which  mort- 
gage was  duly  recorded  in  the  office  of  the  Recorder  of 
Conveyances  of  Multnomah  County,  Oregon,  in  Book  159 
of  Mortgages,  at  page  400  thereof ;  that,  by  the  terms  of 
said  bond  and  mortgage,  plaintiff  agreed  to  pay,  and  de- 
fendant agreed  to  accept  from  plaintiff,  for  the  use  of  the 
the  money  so  loaned,  more  than  10  per  cent  per  annum, 
viz.,  interest  at  the  rate  of  6  per  cent  per  annum,  payable 
monthly,  and  premium  at  the  rate  of  7  per  cent  per  an- 
num, payable  monthly  ;  that  said  bond,  mortgage,  and  all 
other  papers  signed  and  executed  by  plaintiff  were  made 


90  Dabr  v.  Guaranty  Loan  Assoc.  [47  Or. 

and  delivered  by  said  plaintiff  to  defendant  in  the  City  of 
Portland,  Multnomah  County,  Oregon,  and  all  of  said  pay- 
ments were  to  be  made  and  were  made  by  plaintiff  and 
received  by  defendant  in  said  City  of  Portland.  Plaintiff 
further  alleges  that  he  has  paid  said  defendant  Guaranty 
Savings  &  Loan  Association  all  of  said  principal  sum,  with 
more  than  6  per  cent  interest  per  annum  for  the  use  of  the 
said  $900,  and  is  entitled  to  have  all  payments  made  to 
defendant  Guaranty  Savings  &  Loan  Association  applied 
in  satisfaction  of  the  original  debt,  and  to  have  said  mort- 
gage canceled  and  released,  and  the  cloud  on  the  title  to 
said  property  removed,  and  the  title  to  said  property 
quieted." 

The  prayer  is  that  the  mortgage  be  decreed  to  be  usuri- 
ous; that  all  payments  made  thereon  by  plaintiff,  above 
six  per  cent  interest,  be  applied  upon  the  original  debt; 
that  the  bond  and  mortgage  be  decreed  to  be  paid  and 
satisfied,  and  the  mortgage  canceled  ;  tha,t  the  cloud  upon 
plaintiff's  property  by  reason  of  said  mortgage  be  removed, 
and  his  title  quieted ;  and  for  such  other  relief  as  may 
seem  equitable.  The  defendants  interposed  a  demurrer 
to  this  complaint,  which  was  overruled,  and,  refusing  to 
plead  further,  the  plaintiff  had  a  decree,  from  which  the 
former  appeal.  Reversed. 

For  appellants  there  was  a  brief  over  the  name  of  Carey 
&  Mays,  with  an  oral  argument  by  Mr.  Robert  Finley  Bell, 

For  respondent  there  was  a  brief  over  the  names  of 
R,  &  E.  B.  Williams  and  Raleigh  Trimble,  with  an  oral  ar- 
gument by  Mr,  Trimble, 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

This  suit  is  denominated  by  plaintiff  as  one  to  remove 
a  cloud  from  title,  but  it  is  in  reality  for  the  cancellation 
of  a  mortgage  upon  the  ground  that  the  debt  which  it  was 
given  to  secure  has  been  fully  paid  and  satisfied.  The 
question  presented  is  whether  the  complaint  states  facts 
sufficient  to  entitle  plaintiff  to  the  relief  sought.    The 


July,  1905.]     Dark  v.  Guaranty  Loan  Assoc.  91 

plaintiff  evidently  intended  to  bring  himself  within  the 
principle  enunciated  by  this  court — that  payments  made 
to  so-called  building  and  loan  associations  by  borrowers 
under  the  guise  of  premiums  and  dues  would  be  treated 
as  payments  upon  the  principal,  and,  if  sufficient  to  dis- 
charge it,  the  obligation  and  mortgage  given  for  its  secur- 
ity would  be  canceled,  and  the  land  freed  of  the  incum- 
brance. The  reason  lying  at  the  root  of  the  principle  is 
that  the  statute  authorizing  the  organization  of  building 
and  loan  associations,  and  regulating  the  conduct  of  the 
business  thereof,  not  having  been  previously  construed 
by  the  courts,  was  in  all  probability  not  well  understood 
by  either^romoters,  managers,  stockholders  or  borrowers 
of  such  associations  as  attempted  to  engage  in  the  business 
within  the  State,  and  it  could  not  certainly  be  determined 
that  the  contracts  with  them  were  entered  into  with  a  mu- 
tual corrupt  intent  of  evading  the  statute  against  usury; 
hence  that  the  punishment  for  usury  would  not  be  visited 
upon  the  lender  by  forfeiting  the  principal  to  the  school 
fund,  but  that  the  association  would  only  be  permitted  to 
receive  interest  charged  as  such,  and  the  payments  of 
premiums,  dues,  etc.,  would  be  credited  to  the  reduction 
of  the  principal:  Washington  Invest.  Assoc,  v.  Stanley,  38 
Or.  319  (63  Pac.  489,  58  L.  R.  A.  816,  84  Am.  St.  Rep.  793) 
Western  Sav.  Co.  v.  Houston,  38  Or.  377  (65  Pac.  611) 
Irwin  V.  Washington  Loan  Assoc.  42  Or.  105  (71  Pac.  142) 
Epping  v.  Washington  Invest.  Assoc.  44  Or.  116  (74  Pac. 
923). 

1.  Now,  it  being  the  purpose  of  plaintiff  to  bring  him- 
self within  this  doctrine,  and  thereby  secure  the  benefits 
of  the  payments  of  premiums  and  dues,  as  they  are  termed 
in  the  complaint,  upon  the  principal,  it  was  essential  for 
him  to  show  that  he  had  contracted  with  a  building  and 
loan  association  having  a  plan  or  scheme  for  conducting 
its  business  different  from  that  sanctioned  by  the  statute. 


92  Dark  v.  Guaranty  Loan  Assoc.  [47  Or. 

and  other  facts  indicating  that  there  was  not  a  corrupt 
intent  between  himself  and  the  defendants  to  receive  and 
pay  the  excessive  interest;  otherwise  the  unpaid  principal 
should  be  forfeited  to  the  school  fund.  His  complaint 
shows  nothing  of  the  kind.  It  appears  merely  that  the 
defendant  the  Guaranty  Savings  &  Loan  Association  was 
and  is  a  corporation ;  but  for  what  purpose  it  was  organ- 
ized, or  what  the  nature  of  the  business  it  was  conducting, 
is  not  shown.  Further,  it  appears  that  the  plaintiff  exe- 
cuted to  the  association  a  nonnegotiable  first  mortgage 
bond,  by  which  he  agreed  to  pay  the  association  $900, 
with  interest  at  the  rate  of  6  per  cent  per  annum,  a  pre- 
mium at  the  rate  of  7  per  cent  per  annum,.and^monthly 
dues  of  60  cents  on  each  of  nine  shares  in  such  associa- 
tion, and  also  executed  a  nonnegotiable  mortgage  to  secure 
the  payment  of  his  obligation  according  to  its  tenor ;  that 
by  the  terms  of  such  bond  and  mortgage  it  agreed  to  pay, 
and  defendant  agreed  to  accept  from  plaintiff,  for  the  use 
of  the  money  so  loaned,  more  than  10  per  cent  per  annum, 
namely,  interest  at  the  rate  of  6  per  cent  per  annum,  and 
premium  at  the  rate  of  7  per  cent  per  annum,  payable 
monthly.  There  is  here  no  indication  as  to  who  owns  the 
nine  shares  of  stock,  or  whether  the  plaintiff  has  any  con- 
nection with  the  association,  other  than  as  a  borrower; 
and  if  such  is  the  relation,  and  the  premium  was  intended 
as  additional  compensation  for  the  use  of  the  money,  the 
contract  is  clearly  usurious,  and  the  debt  ought  to  be  for- 
feited to  the  school  fund. 

2.  The  succeeding  allegation  is  merely  a  conclusion  of 
law,  and  it  is  impossible  to  say  whether  the  bond  has  been 
paid  or  not,  and,  if  so,  upon  what  basis.  It  is  in  effect  that 
plaintiff  has  paid  the  association  the  principal  and  more 
than  6  per  cent  thereon,  and  is  entitled  to  have  the  same 
applied  to  satisfy  the  debt.  Good  pleading  requires  that 
the  amounts  and  times  of  the  payments  be  shown,  so  that 


July,  1905.]  Holmes  v,  Wolfard.  93 

the  court  may  be  enabled  to  say  whether  the  debt  has  been 
discharged  or  not. 

3.  Taking  the  complaint  as  a  whole  and  construing  it 
most  strongly  against  the  pleader,  as  the  rule  requires 
when  tested  by  demurrer,  it  is  totally  lacking  in  the  essen- 
tials to^bring  the  pleader  within  the  doctrine  of  the  cases 
above  alluded  to,  as  seems  to  have  been  the  especial  purpose 
of  the  suit,  and  the  demurrer  ought  therefore  to  have  been 
sustained. 

The  order  of  the  court  will  be  that  the  decree  of  the  cir- 
cuit court  be  reversed,  that  the  demurrer  be  sustained,  and 
that  the  cause  be  remanded  for  such  other  and  further  pro- 
ceeding as  may  seem  meet.  Reversed. 


Argued  28  June,  decided  81  July,  1905. 
HOLMES  V.  WOLFABD. 

81  Fac.  819. 

Motion  to  Quash  Execution  as  Res  Judicata. 

1.  A  motion  to  quash  la  not  the  remedy  of  one  whose  property  has  been 
seized  under  a  writ  as^inst  another,  and  the  decision  on  such  a  motion  is  not 
conclusive  in  a  subsequent  appropriate  proceeding  to  determine  the  title,  since 
the  claimant  was  not  a  party  to  the  proceeding  in  which  the  writ  was  issued  and 
consequently  could  not  have  demanded  or  received  the  relief  now  obtainable : 
Marks  v.  Stephens,  88  Or.  65,  distinguished. 

PiiEADiNo—  Departure. 

2.  Where,  in  an  action  to  determine  an  adverse  interest  in  real  estate,  the 
complaint  alleged  that  plaintiff,  since  March  19,  1908,  had  been  the  equitable 
owner  of  the  property  and  had  exclusive  possession  thereof,  and  defendant 
denied  such  allegations,  and  averred  that  plaintiff's  grantor,  S.,  was  the  owner 
of  the  property,  and,  being  Indebted  to  M.,  the  latter  held  a  deed  to  the  premises, 
which  was  intended  as  a  mortgage  to  secure  the  indebtedness,  pending  which 
the  property  was  sold  under  a  Judgment  against  S.,  after  which  8.  conveyed  the 
land  to  plaintiff  for  a  preexisting  debt,  a  reply  denying  the  allegations  of  new 
matter,  averring  the  fkots  in  respect  to  the  transfer  of  title  by  way  of  security  as 
allege,  and  that  8.  held  possession  until  he  executed  his  deed  to  plaintiff,  who 
claimed  a  valid  title  thereto,  subject  to  the  payment  of  the  remainder  of  the 
original  debt,  which  had  been  assigned  to  defendant,  did  not  constitute  a  departs 
ure,  but  was  a  new  assignment,  designed  merely  to  afflrm  the  averments  of  the 
complaint  by  correcting  defendant's  alleged  mistalie  in  regard  thereto. 

Who  May  8ue  to  Determine  Adverse  Claim. 

3.  Section  516,  B.  A  C.  Comp.,  authorizing  a  party  claiming  an  interest  or 
ettateln  real  property,  not  in  the  actual  possession  of  another,  to  maintain  a  suit 


94  Holmes  v.  Wolfard.  [47  Or. 

against  any  person  claiming  an  estate  or  Interest  therein  adverse  to  htm,  for 
the  purpose  of  determining  such  conflicting  claims,  authorises  the  maintenance 
of  such  suit  by  the  bolder  of  a  mere  equitable  right. 

Liability  of  Equitable  Interest  in  Land  to  Execution. 

4.  In  Oregon  a  mere  equity  In  land  is  not  subject  to  seizure  and  sale  nnder 
execution. 

To  illustrate:  Where  real  estate  was  conveyed  to  one  who  advanced  the 
entire  consideration  for  its  purchase,  under  a  contract  to  convey  the  same  to 
another,  on  payment  of  the  consideration  and  interest,  and  such  other  person 
never  held  the  legal  title  to  the  land,  his  equity  therein  was  not  subject  to  levy 
and  sale  under  execution. 

From  Marion :  Reuben  P.  Boise,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  a  suit  by  W.  H.  Holmes  against  A.  G.  Wolfard 
to  determine  an  adverse  interest  in  real  estate.  The  facts 
are  that  W.  R.  Smith,  desiring,  but  being  unable,  to  pur- 
chase the  NW.  i  of  section  28,  in  township  7  S.  of  range 
1  E.,  in  Marion  County,  entered  into  a  contract  with  one 
John  Morley,  whereby  the  latter  paid  the  entire  considera- 
tion, and  as  security  therefor  the  owner  of  such  real  prop- 
erty executed  a  deed  thereof  to  Morley,  who  agreed  to 
convey  the  premises  to  Smith,  upon  the  payment  of  the 
consideration  and  interest.  Morley  having  received  a  part 
of  the  money  loaned,  the  defendant,  on  January  22, 1901, 
at  Smith's  request,  paid  the  remainder  due,  $444,  taking 
as  security  therefor  a  deed  of  the  premises  executed  by 
Morley,  and  giving  Smith  a  bond  for  a  deed,  in  which  it 
was  stipulated  that  the  premises  should  be  conveyed  to 
the  latter  upon  the  payment  of  that  sum  and  interest. 
Coolidge  &  McClaine,  a  corporation,  having  commenced 
an  action  against  Smith  in  the  circuit  court  for  Marion 
County,  secured  a  judgment  therein  February  3, 1902,  for 
the  sum  of  $786.89.  Forty-four  days  thereafter,  Smith,  in 
consideration  of  a  debt  of  $800,  executed  to  plaintiff  a  quit- 
claim deed  of  all  his  interest  in  such  real  property.  Coo- 
lidge &  McClaine,  on  June  3,  1903,  assigned  its  judgment 
to  the  defendant,  who  caused  an  execution  issued  thereon 
to  be  levied  upon  the  premises  in  question,  whereupon 


July,  1905.]  Holmes  v.  Wolfard.  95 

plaintiff  moved  to  set  aside  the  levy;  but,  the  raotion 
having  been  denied  and  no  appeal  taken  from  such  action 
of  the  court,  the  sheriff  of  that  county,  on  August  8, 1903, 
for  the  sum  of  $800,  purported  to  sell  to  the  defendant  all 
the  interest  Smith  had  in  the  real  property  in  question  on 
the  day  such  judgment  was  rendered,  which  sale  was  con- 
firmed. The  complaint  states  that  plaintiff  is,  and  ever 
since  March  19, 1903,  has  been,  the  equitable  owner  of  such 
real  estate,  and  in  the  exclusive  possession  thereof;  that 
the  defendant  claims  an  estate  therein  adverse  to  him  ;  and 
that  such  claim  is  without  right.  The  answer  denies  the 
material  allegations  of  the  complaint,  and  for  a  further  de- 
fense avers  that  Smith  was  the  owner  of  the  real  property, 
and,  being  indebted  to  Morley,  the  latter  held  a  deed  to  the 
premises,  which  was  intended  as  a  mortgage  to  secure  the 
payment  of  the  sum  of  $513.  Th^  facts,  as  hereinbefore 
stated,  in  respect  to  the  transfer  of  the  title  by  Morley  to 
the  defendant,  the  judgment  secured  by  Coolidge  &  Mc- 
Claine,  and  the  proceedings  thereunder  are  alleged ;  and 
it  is  also  averred  that  no  part  of  the  sum'  loaned  to  Smith 
by  the  defendant  has  ever  been  paid,  and  that  the  defend- 
ant was  compelled  to  pay  the  taxes  imposed  on  such  land 
as  follows :  February  26, 1902,  $6.21,  and  March  14, 1903, 
$5.90  ;  that  at  the  time  such  judgment  was  rendered  Smith 
was  the  owner  of  the  real  property  in  question ;  that  it 
became  subject  to  the  lien  of  the  judgment ;  that  it  was 
also  incumbered  with  a  lien  for  the  sum  loaned  by  defend- 
ant thereon  ;  that  plaintiff's  interest  therein  is  subordinate 
to  such  liens,  and  was  extinguished  by  the  sale  thereof  in 
the  manner  indicated.  For  a  third  defense,  plaintiff's 
motion  to  set  aside  the  levy  of  the  execution,  and  the  action 
of  the  court  thereon,  are  alleged  as  a  plea  in  bar  to  the 
maintenance  of  this  action.  The  reply  denies  the  material 
allegations  of  new  matter  in  the  answer,  sets  out  the  chain 
of  title  under  which  plaintiff  claims  the  premises,  and 


96  Holmes  v.  Wolfard.  [47  Or. 

avers  the  facts  in  respect  to  the  transfer  of  the  title  hy  way 
of  security  as  hereinbefore  stated ;  that  Smith  held  pos- 
session of  the  land  until  he  executed  his  deed  to  plaintiff, 
who  in  good  faith  entered  into  and  retained  the  possession 
thereof,  believing  he  had  a  valid  title  thereto,  subject  only 
to  the  payment  of  defendant's  debt  of  $444,  and  interest 
and  taxes,  as  alleged  in  the  answer,  no  part  of  which  has 
been  paid.  The  cause  being  thus  at  issue,  defendant's 
counsel,  based  on  the  pleadings,  moved  the  court  for  a 
decree  dismissing  the  suit  on  the  grounds  that  the  plain- 
tiff was  not  the  owner  of  the  legal  title  of  the  premises  in 
question ;  that  the  interest  claimed  by  defendant  in  the 
real  property  is  that  of  a  lien  holder  for  the  sums  loaned 
by  him  thereon  and  the  judgment  and  costs  adverted  to, 
which  are  not  adverse  to  plaintiff's  estate  in  the  real  prop- 
erty ;  and  that  there  is  a  departure  between  the  averments 
of  the  complaint  and  of  the  reply,  preventing  a  recovery 
on  the  prior  pleading.  This  motion  having  been  over- 
ruled, the  cause  was  tried,  resulting  in  a  decree  to  the 
effect  that  plaintiff  was  the  equitable  owner  of  the  real 
estate  described  in  the  complaint,  subject,  however,  to  the 
claim  of  the  defendant  on  account  of  the  loan  of  $444,  with 
interest  thereon  at  the  rate  of  7  per  cent  per  annum,  since 
February  22, 1901,  and  the  sums  paid  on  account  of  taxes, 
with  interest  thereon  at  the  rate  of  6  per  cent  since  the 
payment  thereof,  upon  the  discharge  of  which  plaintiff 
was  entitled  to  a  conveyance  of  the  land,  free  from  all 
claims  of  any  kind  whatever,  and  the  defendant  appeals. 

Affirmed. 

For  appellant  there  was  a  brief  and  oral  argument  by 
Mr,  George  Greenwood  Bingham. 

For  respondent  there  was  a  brief  over  the  names  of 
J.  H,  McNary  and  C.  L.  McNary,  with  an  oral  argument 
by  Mr.  John  H,  McNary, 


July,  1905.]  Holmes  v.  Wolfard.  97 

Mr.  Justice  Moorb  delivered  the  opinion  of  the  court. 

1.  It  is  contended  by  defendant's  counsel  that,  if  the 
execution  issued  on  the  judgment  rendered  in  the  action 
of  Goolidge  &  McCIaine  against  Smith  was  enforced  against 
plaintiff's  interest  in  the  real  property  when  it  was  not 
subject  thereto,  his  remedy  was  to  apply  to  the  court  to 
set  aside  the  levy,  and,  having  done  so  and  taken  no  ap- 
peal from  the  denial  of  the  motion,  such  action  became 
final,  thereby  precluding  the  maintenance  of  this  suit,  in 
refusing  to  dismiss  which  an  error  was  committed.  A  text 
writer,  in  speaking  of  a  motion  to  quash  a  levy  upon  prop- 
erty under  an  execution,  says:  "The  court  will  not,  upon 
the  motion  of  one  not  a  party  to  the  action,  undertake  to 
determine  the  title  to  the  property  levied  upon.  Therefore 
this  is  not  a  proper  remedy  for  one  whose  property  has 
been  levied  upon  under  execution  against  another,  and 
whose  claim  is  not  that  there  was  irregularity  in  the  levy, 
but  only  that  the  officer  has  seized  the  property  of  a  stranger 
to  the  writ":  2  Freeman,  Executions  (3  ed.),§  271a.  Holmes 
was  not  a  party  to  the  action  of  Goolidge  &  McCIaine  against 
Smith,  in  which  the  execution  was  issued ;  and,  though 
there  may  have  been  a  privity  of  estate  between  him  and 
Smith,  the  motion  to  quash  the  levy,  which  he  interposed, 
presented  the  question  of  title  to  the  property,  which  the 
court  very  properly  refused  to  consider.  A  judicial  de- 
termination that  will  bar  another  suit  or  action  on  the 
same  ground  must  be  for  relief  which  either  was  or  could 
have  been  demanded  and  granted  in  the  original  proceed- 
ing; and,  as  the  court  was  powerless  to  grant  the  motion, 
Holmes  was  not  estopped  thereby.  This  principle  does 
not  militate  against  that  established  in  Marks  v.  Stephens y 
38  Or.  65  (63  Pac.  824,  84  Am.  St.  Rep.  750),  that,  where 
an  execution  is  irregularly  levied,  the  remedy  of  the  in- 
jured party  is  to  move  to  set  aside  the  seizure,  and,  if  he 
47  Or.  —  6 


98  Holmes  v.  Wolfard.  [47  Or. 

fails  to  do  so,  he  is  estopped  to  dispute  the  regularity  of 
the  proceedings ;  for  in  that  case  the  party  assailing  the 
levy  was  also  a  party  to  the  judgment  upon  which  the 
execution  was  issued. 

2.  It  is  insisted  by  defendant's  counsel  that  there  is  a 
material  variance  between  the  allegations  of  the  com- 
plaint and  the  averments  of  the  reply,  and  that,  having 
moved  to  dismiss  the  suit  on  that  ground,  an  error  was 
committed  in  denying  the  motion.  In  Mayes  v.  Stephens, 
38  Or.  512  (63  Pac.  760,  64  Pac.  319),  in  discussing  the 
question  here  presented,  it  is  said :  **The  facts  relied  upon 
as  a  ground  of  action  should  generally  be  stated  in  the 
complaint ;  for,  if  the  reply  allege  matter  which  consti- 
tutes an  original  cause  of  action,  the  averment  of  the 
latter  pleading  will  be  treated  as  a  departure.  ♦  ♦  But 
a  new  assignment  in  the  reply,  designed  to  affirm  the 
averments  of  the  complaint  by  correcting  the  defendant's 
mistake  in  regard  thereto,  is  not  a  departure.  ♦  ♦  Mat- 
ter which  sustains  a  pleading  is  no  departure,  if  set  up  in 
the  reply,  though  it  might  have  been  set  out  in  the  com- 
plaint (Fitman,  Trial  Proc.  §  581);  the  rule  being  that  the 
complaint  and  reply,  when  not  repugnant,  should  be  read 
together  to  determine  the  pleader's  intent."  To  the  same 
effect  see  Crown  Cycle  Co.  v.  Brown,  39  Or.  285  (64  Pac.  451); 
Patterson  v.  Patterson,  40  Or.  560  (67  Pac.  664);  Kiernan  v. 
Kratz,  42  Or.  474  (69  Pac.  1027,  70  Pac.  506).  In  our  opin- 
ion the  allegations  of  new  matter  in  the  reply  were  intended 
to  correct  the  defendant's  mistake  in  regard  to  the  aver- 
ments of  the  complaint,  which  are  thereby  amplified,  thus 
constituting  a  new  assignment,  and  not  a  departure.  Not- 
withstanding the  averments  of  the  reply  and  the  language 
of  the  decree  may  seem  to  indicate  that  this  suit  is  in  the 
nature  of  a  bill  to  redeem,  and  hence  a  departure,  we  think 
a  careful  analysis  of  plaintiff's  pleadings,  construing  them 
in  pari  materia,  will  show  that  the  object  of  the  suit  is  to 


July,  1905.]  Holmes  v,  Wolfard.  99 

determine  an  adverse  interest  in  realty,  claimed  by  reason 
of  the  levy  and  sale  thereof  under  execution  ;  the  plaintiff 
conceding  that  the  sum  due  from  Smith  to  the  defendant 
on  account  of  the  loan,  together  with  the  interest  thereon 
and  the  taxes  so  paid,  constitute  a  valid  lien  on  the  real 
property  in  question. 

3.  It  is  contended  by  defendant's  counsel  that  a  suit  to 
determine  an  adverse  interest  in  real  property  cannot  be 
maintained  by  the  owner  of  the  equitable  estate  against 
the  holder  of  the  legal  title,  and  that,  having  moved  to 
dismiss  the  suit  on  that  ground,  an  error  was  committed 
in  denying  the  motion.  Our  statute  authorizes  a  party 
claiming  an  interest  or  estate  in  real  property,  not  in  the 
actual  possession  of  another,  to  maintain  a  suit  against 
any  person  claiming  an  interest  or  estate  therein  adverse 
to  him,  for  the  purpose  of  determining  such  conflicting 
claim  :  B.  &  C.  Comp.  §  516.  In  Ladd  v.  Mills,  44  Or.  224 
(75  Pac.  141),  in  construing  this  statute,  it  was  held  that 
any  person  having  a  substantial  interest  in  or  claim  to 
real  property,  though  not  the  legal  owner  thereof,  might 
maintain  a  suit  to  determine  an  adverse  claim  thereto. 
In  deciding  that  case,  Mr.  Justice  Bean,  referring  to  the 
statute  in  question,  said:  ''Under  this  provision  it  is  not 
necessary  that  the  plaintiff  have  the  legal  title  before  he 
can  maintain  a  suit  to  determine  an  adverse  claim  to  real 
estate."    The  decision  in  that  case  is  controlling  in  this. 

4.  These  preliminary  questions  having  been  disposed 
of,  we  come  to  the  merits  of  the  case,  which  are  involved 
in  the  inquiry  whether  or  not  Smith  had  such  an  interest 
in  the  real  property  described  in  the  complaint  as  could 
be  subjected  to  sequestration  by  an  execution  issued  on  a 
judgment  in  a  law  action.  It  is  alleged  in  the  answer  that 
he  was  the  owner  of  this  land  when  it  was  conveyed  to 
Morley,  by  deed  absolute  in  form,  but  which  was  in  fact  a 
mortgage  to  secure  the  payment  of  the  sum  loaned.   This 


100  HOLMBS  V.  WOLFARD.  [47  Or. 

averment  is  denied  in  the  reply,  thereby  imposing  on  the 
defendant  the  burden  of  establishing  the  controverted  fact. 
The  evidence  unquestionably  shows  that  Smith  never  held 
the  legal  title  to  the  premises,  and  possessed  only  the  right 
of  obtaining  a  deed  upon  the  payment  of  the  stipulated 
sum.  He  was  not,  therefore,  and  never  had  been,  the 
owner  of  the  real  property  in  question,  and  had  only  an 
equitable  interest  therein.  In  Smith  v.  Ingles,  2  Or.  43, 
the  defendant,  being  insolvent,  purchased  certain  real 
property,  taking  the  title  thereto  in  the  name  of  his  two 
minor  sons.  A  judgment  having  been  rendered  against 
Ingles,  the  real  estate  in  question  was  levied  upon,  in 
pursuance  of  an  execution  issued  on  that  judgment,  and 
the  premises  sold,  whereupon  it  was  held  that  he  had  no 
interest  in  the  land  to  which  the  lien  of  the  judgment 
could  attach,  and  that  his  equitable  estate  therein  could 
not  be  divested  by  a  sale  upon  an  execution  while  the 
legal  title  remained  in  his  sons.  In  Silver  v.  Lee,  38  Or. 
508  (63  Pac.  882),  it  was  held  that  where  an  insolvent 
debtor  purchases  land,  causing  it  to  be  conveyed  directly 
to  a  trustee,  he  has  no  interest  therein  that  is  the  subject 
of  sale  on  execution,  because  he  never  owned  the  prem- 
ises. See,  also,  the  case  of  Bloomfield.v.  Humason,  11  Or. 
229  (4  Pac.  332). 

The  rule  thus  established  rests  upon  the  assumption 
that  an  equitable  interest  in  real  property  is  an  uncer- 
tain estate,  which,  if  it  could  be  sold  on  execution  issued 
on  a  judgment  rendered  in  a  law  action,  would  produce 
a  sum  grossly  inadequate  in  proportion  to  its  real  value ; 
for  most  persons,  in  purchasing  real  property,  insist  upon 
a  certainty  of  the  title  thereto,  and,  where  there  is  a  doubt 
in  this  respect,  usually  decline  to  invest  their  money.  IL 
a  compulsory  sale  of  such  interest  upon  execution  were 
permissible,  there  would  be  little  or  no  competition  in  bid- 
ding.   Few  people  desire  to  purchase  a  lawsuit,  and  the 


July,  1905.]  Holmes  v.  Wolfard.  101 

judgment  creditor  would  probably  secure  the  equitable 
estate  for  a  nominal  sum.  In  the  interest  of  the  debtor, 
and  to  afford  purchasers  of  real  property  at  an  enforced 
sale  thereof  an  equal  opportunity  with  the  judgment  cred- 
itor, the  rule  adverted  to  has  been  adopted,  requiring  the 
latter  first  to  establish  the  fact  in  a  court  of  equity,  in  a 
suit  instituted  for  that  purpose,  that  the  debtor's  equita- 
ble estate  in  real  property  is  subject  to  the  payment  of  his 
demand,  before  such  interest  can  be  divested  by  a  sale 
thereof  upon  execution.  So  long,  therefore,  as  any  sub- 
stantial thing  remains  to  be  done  by  the  debtor  before  his 
equitable  estate  in  real  property  ripens  into  the  legal  title, 
such  interest  cannot  be  reached  under  an  execution  issued 
on  a  judgment  in  a  law  action,  but  to  subject  such  estate 
to  the  payment  of  the  creditor's  demand,  resort  must  be 
had  to  a  court  of  equity  to  establish  the  right.  In  Pogue 
V.  Simon,  47  Or.  6  (81  Pac.  566),  it  was  held  that  real 
property  sold  upon  execution,  the  sale  duly  confirmed, 
and  the  time  for  its  redemption  having  expired,  though 
the  sheriff's  deed  therefor  had  not  been  executed,  was  sub- 
ject to  levy  and  sale  on  execution  issued  on  a  judgment 
rendered  against  the  purchaser  of  the  real  estate.  The 
decision  in  that  case  proceeds  upon  the  theory  that,  the 
time  for  redemption  having  expired,  the  purchaser  of  the 
real  property  hai  nothing  substantial  to  do  in  order  to 
establish  his  right,  and  therefore  by  operation  of  law,  eo 
instante  on  the  expiration  of  the  time  limited,  became  the 
owner  of  the  premises,  which  rendered  the  real  property 
subject  to  seizure  and  sale  on  execution,  though  the  deed 
evidencing  the  transfer  of  the  title  had  not  been  executed. 
In  that  case  there  was  nothing  that  could  possibly  be  done 
by  the  original  debtor,  or  those  in  privity  with  him,  to 
defeat  the  right  of  the  prior  purchaser  under  the  execu- 
tion sale,  who  was  entitled  to  a  sheriff's  deed ;  and  for  a 
failure  to  execute  such  instrument  mandamus  would  lie. 


102  HOLMBS  V.  WOLFARD.  [47  Or. 

It  will  be  remembered  that  the  consideration  paid  by 
Holmes  for  the  equitable  interest  in  the  land  consisted  of 
an  antecedent  debt  due  from  Smith.  The  evidence  shows 
that  Holmes  knew  of  the  rendition  of  the  Coolidge  &  Mc- 
Claine  judgment  against  Smith  before  he  obtained  the 
latter's  quitclaim  deed  transferring  the  equitable  estate. 
The  defendant  had  secured  an  assignment  of  that  judg- 
ment, thereby  becoming  Smith's  creditor  to  the  extent  of 
the  sum  awarded  by  the  court  against  him.  This  judg- 
ment was  not  a  lien  on  the  equitable  estate  in  the  land 
(Smith  V.  Ingles,  2  Or.  43),  and  the  attempt  of  the  plain- 
tiff and  of  the  defendant  in  this  suit  to  secure  the  payment 
of  their  respective  debts  was  a  race  between  creditors  of 
equal  right.  If  Smith  did  not  have  sufficient  property  or 
means  with  which  to  pay  all  his  debts,  he  could  in  good 
faith  prefer  a  creditor,  and  sell  and  convey  his  property 
to  him  in  payment  of  a  debt:  Elfelt  v.  Hinch,  5  Or.  255; 
Sabin  v.  Columbia  Fuel  Co,,  25  Or.  15  (34  Pac.  692,  42  Am. 
St.  Rep.  756);  Currie  v.  Bowman,  25  Or.  3(54  (35  Pac.  848). 
Invoking  the  maxim  that,  where  there  are  equal  equities, 
the  first  in  time  shall  prevail,  it  follows  that  Wolfard,  by 
the  levy  and  sale  of  the  real  property  under  execution, 
secured  no  interest  therein  as  against  Holmes,  who  there- 
tofore had  obtained  the  equitable  estate  by  a  conveyance 
thereof. 

The  decree  is  therefore  affirmed,  without  prejudice,  how- 
ever, to  the  defendant's  lien  on  account  of  his  loan,  the 
interest  thereon,  and  the  taxes  paid  by  him,  together  with 
interest  since  the  payment  thereof.  Affirm bd. 


July,  1905.]  DuNiwAY  v.  Portland.  103 


Argued  29  June,  decided  31  July,  1906. 
BXmiWAY  V.  POBTIiAND. 

81  Pac.  946. 

Portland  Charter— CJonstitutionality  of  Sections  400  and  401. 

1.  Section  400  of  the  Portland  Charter  of  1908  Is  not  void  under  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States,  or  under  sections  10 or  18 
of  Article  I  of  the  Constitution  of  Oregon,  and  It  is  retroactive  in  its  effect,  and 
section  401  of  said  charter  Is  not  void  under  Const.  Or.  Art.  VII,  1 9. 

Construction  of  Section  400  of  Portland  Charter  of  190S. 

2.  Section  400  of  the  Portland  Charter  of  1908,  relating  to  reassessing  benefits 
received  through  void  public  Improvements,  is  intended  to  afford  the  city  a 
supplementary  remedy  for  collecting  the  costs  of  improvements  undertaken  in 
good  fkith,  but  annulled  by  the  courts. 

CONCLrSIVENBSS  OF  ACTION  OF  COUNCIL  IN  REASSBSSINQ. 

8.  Under  Portland  Charter  of  1908,  §  400,  authorizing  a  reassessment  for  local 
Improvements  in  case  of  the  invalidity  of  the  original  assessment,  and  requiring 
notice  of  the  reassessment  to  be  given  to  abutting  property  owners,  so  that  they 
may  file  objections  thereto,  and  further  requiring  a  hearing  on  such  objections 
and  a  determination  of  their  validity,  the  determination  of  the  council  that  the 
objections  are  invalid  is  conclusive,  and  the  question  cannot  be  collaterally 
raised,  unless  the  council  has  proceeded  fraudulently  in  making  the  reassess- 
ment. 

Charoino  Fraud  of  Council  on  Reassessment. 

4.  In  attacking  the  good  faith  of  the  council  in  making  a  reassessment  under 
section  400  of  the  Portland  Charter  of  1903  the  fraud  alleged  must  relate  to  the 
new  proceeding. 

Insufficient  Plea  of  Fraud  by  Council. 

6.  In  a  suit  to  annul  a  local  improvement  assessment,  an  allegation  in  the 
complaint  that  the  board  of  public  works  accepted  the  Improvement  in  reliance 
upon  the  fraudulent  representations  of  the  contractors  and  the  city  engineer  is 
insufficient  to  charge  the  board  of  public  works  with  fraud  in  accepting  the 
improvement. 

Reassessment  not  an  abuse  of  Taxing  Power  — Constitution. 

6.  A  reassessment  for  local  improvements,  under  Portland  Charter  of  1908, 
2400,  authorizing  such  reassessment  where  the  original  assessment  has  been 
adjudged  invalid,  cannot,  in  the  absence  of  fraud  on  the  part  of  the  city  council 
in  making  the  reassessment,  or  the  board  of  public  works  in  accepting  the  im- 
provement, be  regarded  as  an  attempt  to  raise  money  for  the  private  use  of  the 
contractors  and  holders  of  warrants  under  the  taxing  power  of  the  municipality, 
in  violation  of  Const.  Or.  Art.  XI,  g  9. 

Effect  of  Acceptance  of  Improvement  by  City  Authorities. 

7.  In  the  absence  of  fraud,  the  acceptance  of  a  local  Improvement  by  the  pub- 
lic authorities  is  conclusive  as  to  the  manner  in  which  the  work  was  done,  as 
against  collateral  attack. 

Notice  of  Resolution  to  Rea.ssess  for  Local  Improvements. 

8.  Under  PorUand  Charter  of  1903.  g  400,  authorizing  a  reassessment  for  local 
improvements  in  case  of  the  invalidity  of  the  original  assessment,  the  council 
need  not,  in  the  absence  of  charter  requirement,  give  abutting  owners  notice,  nor 
afford  them  a  hearing,  prior  to  adopting  the  resolution  directing  the  city  auditor 
to  prepare  a  preliminary  reassessment,  and  the  absence  of  notice  does  not  make 
the  proceeding  arbitrary. 


104  DuNiwAY  V.  Portland.  [47  Or. 

Requibbments  of  Reassessment  Proceedings. 

9.  The  proceedings  connected  with  reassessing  property  for  local  Improve- 
ments, under  section  400  of  Portland  Charter  of  1903,  are  entirely  statutory  and  no 
other  proceedings  or  forms  are  required  than  are  there  prescribed. 

SUFriCIBNCY  OF  REASSESSMENT  NOTICE. 

10.  The  notice  of  reassessment  given  In  this  matter  under  section  400  of  the 
Portland  Charter  of  1908  was  sufficient,  as  it  contained  every  statement  required. 

Municipal  Corporations —Adjournment  of  Meetino— Quorum. 

11.  A  charter  provision  that  a  less  number  of  the  council  than  a  quorum  may 
adjourn  from  time  to  time,  is  not  affected  by  an  ordinance  providing  that  if  a 
quorum  is  not  present,  the  chief  of  police  shall  notify  the  absentees  to  appear,  but 
if  they  still  absent  themselves,  the  members  present  shall  adjourn  to  the  next 
regular  meeting,  the  ordinance  applying  to  only  those  Instances  in  which  the 
chief  of  police  acts.  Therefore,  where  there  is  no  quroum  presen  t  and  the  chief  of 
police  does  not  notify  the  absentees  to  attend,  the  members  present  may  adjourn 
to  a  date  specially  set,  under  the  charter  section,  and  need  not  adjourn  to  the 
next  regular  meeting  in  accordance  with  the  ordinance. 

Pboceedingb  of  Municipal  Councils  —  Presumption  of  Regularity. 

12.  In  the  absence  of  affirmative  proof  to  the  contrary,  it  will  always  be  pre- 
sumed that  the  proceedings  and  adjournments  of  municipal  deliberative  bodies 
were  regular  and  valid. 

Delibbrations  of  Council— Continuance  of  Business. 

18.  A  motion  of  a  city  council  that  the  matterof  a  reassessment  be  "continued 
on  the  table"  until  the  next  regular  meeting,  while  expressed  in  inappropriate 
language,  should  be  construed  to  eWdot  a  continuance  of  the  business,  and  should 
not  be  construed  as  operating  to  lay  the  matter  on  the  table,  and  thereby  deprive 
the  council  of  Jurisdiction  thereof. 

Objections  to  Assessment— Presumption  of  Regulabity  of  Pboceed- 

INGS. 

14.  Where  the  minutes  of  the  meeting  of  a  city  council  do  not  show  what  was 
done  with  objections  to  a  reassessment  for  local  improvements,  and  the  reassess- 
ment ordinance  was  passed  notwithstanding  the  objections.  It  will  be  assumed 
that  they  were  considered  by  the  council  and  found  to  be  without  merit. 

Effect  of  Reassessment  on  Original  Warrants. 

16.  The  reassessment  for  local  improvements,  provided  for  by  Portland  Char- 
ter, 190S,  2  400,  in  case  of  the  invalidity  of  the  original  assessment,  is  merely  sup- 
plementary to  the  regular  proceedings,  and  is  effective,  not  only  to  secure  a  valid 
assessment  of  benefits,  but  to  reach  back  and  validate  the  Improvement  warrants 
Issued  under  the  original  proceeding,  so  far,  at  least,  as  the  reftssessed  benefits  are 
sufficient  for  that  purpose. 

From  Multnomah :  Melvin  C.  George,  Judge. 

Statement  by  Mr.  Chief  Justice  Wolverton. 

This  is  a  suit  for  an  injunction  by  R.  R.  Duniway  against 
the  City  of  Portland  and  others.  The  plaintiffs  are  own- 
ers of  property  abutting  upon  that  portion  of  East  Burn- 
side  Street,  between  East  Eighth  and  East  Twenty-eighth 
streets,  in  the  City  of  Portland,  affected  by  an  attempted 
street  improvement,  of  which  they  complain.    The  im- 


July,  1905.]  DuNiwAY  t;.  Portland.  105 

provement  was  made  under  the  charter  of  1898.  Before 
the  original  assessment  made  against  the  abutting  prop- 
erty for  such  improvement  was  entirely  collected,  plain- 
tiffs instituted  a  previous  suit  to  enjoin  the  collection  of 
such  as  affected  them,  and  were  successful.  Among  other 
things,  it  was  alleged  in  the  complaint  in  that  suit  that 
the  contractors  did  not  comply  with  their  contract  in 
making  the  improvement,  specifying  in  what  particulars, 
and  that  they  did  not  complete  the  improvement  until 
long  after  the  time  agreed  upon,  but  that,  notwithstanding 
such  noncompliance  with  the  contract  and  ordinances, 
and  that  the  city  was  without  jurisdiction,  and  that,  not- 
withstanding the  city  engineer  did  not  file  written  accept- 
ance of  the  work  as  required,  and  the  board  of  public 
works  did  not  publish  notice  of  the  completion  and  accept- 
ance of  said  street  work,  nor  of  the  time  and  place  where 
written  objections  to  the  acceptance  thereof  would  be  con- 
sidered, the  said  board  of  public  works,  nevertheless,  in 
reliance  upon  the  fraudulent  representations  of  the  con- 
tractors and  the  city  engineer  and  his  deputies  and  in- 
spectors, undertook  to  and  did  accept  said  street,  and  the 
oflBcers  of  the  city  thereupon,  but  without  consideration, 
issued  street  warrants  of  the  citj'  upon  the  fund  for  the 
improvement  of  East  Burnside  Street  to  the  defendants 
Smyth  &  Howard,  the  contractors,  and  John  W.  Cook,  for 
$10,742.40,  that  being  the  contract  price  for  doing  the 
work,  and  that,  upon  the  issues  thus  tendered,  the  court 
made  no  findings,  but  declared  the  assessment  void  upon 
jurisdictional  grounds  alone. 

These  facts  are  set  out  in  the  complaint  in  the  present 
suit,  and  it  is  further  alleged  that  the  contractors  did  not 
make  any  attempt  to  substantially  comply  with  their  con- 
tract, and  that  the  city  engineer,  his  deputies  and  inspect- 
ors, did  not  make  any  effort  to  require  such  compliance, 
but  that  said  oflBcers  knowingly,  wilfully  and  fraudulently 


106  DuNiwAY  V.  Portland.  [47  Or. 

represented  to  every  one  concerned  that  said  contract  was 
being  and  had  been  performed  in  strict  accordance  with 
its  specifications,  and  thus  obtained  special  warrants  from 
the  city  for  the  full  contract  price  for  making  the  improve- 
ment, without  consideration,  and  in  fraud  of  the  city,  its 
taxpayers,  and  especially  the  plaintiffs;  "that,  if  any  re- 
assessment should  be  made  and  collected,  the  money  would 
at  once  be  drawn  from  the  city  treasury  to  pay  said  void 
special  street  warrants,  and  would  not  be  of  any  value  to 
the  City  of  Portland,  and  the  same  would  be  made  solely 
for  the  benefit  of  said  street  contractors,  their  bondsmen, 
and  the  owners  of  said  void  special  warrants";  that,  not- 
withstanding the  fraudulent  acts  of  the  contractors  and  of 
the  city  engineer  and  his  subordinates  were  well  known  to 
the  common  council  of  the  city,  it  did,  on  February  18, 
1903,  arbitrarily,  and  without  giving  the  matter  considera- 
tion, and  without  notice  to  plaintiffs  or  giving  them  an 
opportifnity  to  be  heard,  adopt  a  resolution  for  the  reassess- 
ment of  the  benefits  for  the  improvement ;  that  the  auditor 
did  not  make  the  proposed  reassessment  within  10  days, 
but  that  a  deputy  made  and  filed  a  so-called  reassessment 
on  March  7,  1903,  by  copying  the  first  attempted  assess- 
ment and  making  pencil  notations  on  the  same  where 
parties  under  the  first  assessment  had  paid  the  same,  so  far 
as  it  affected  them,  and  by  making  a  computation  of  inter- 
est where  parties  had  not  paid ;  that  the  auditor  caused 
notice  to  be  published,  but  did  not  mail  a  notice  to  the 
parties  affected  by  the  reassessment,  as  required  by  the 
charter ;  that  on  March  31 ,  1903,  plaintiffs  applied  for  and 
obtained  a  preliminary  injunction  from  the  circuit  court 
for  Multnomah  County,  enjoining  further  proceedings  in 
the  matter  of  such  reassessment;  that  on  July  7,  1903,  the 
complaint  was  dismissed  by  the  court,  thus  dissolving  the 
injunction,  which  decree  was  subsequently  affirmed  by 
the  supreme  court,  but  without  prejudice  to  any  question 


July,  1905.]  DuNiwAY  v,  Portland.  107 

as  to  the  cancellation  of  the  alleged  fraudulent  warrants 
in  any  appropriate  proceeding  involving  the  question ; 
that  the  mandate  in  said  cause  was  sent  down  and  entered 
in  the  circuit  court  March  12,  1904 ;  and  that  on  March 
31,  1903,  plaintiffs  filed  with  the  auditor  objections  to 
said  reassessment  proceedings  on  grounds:  (1)  That  the 
city  has  no  power  or  authority  to  make  the  reassessment; 
(2)  that  the  city  has  not  complied  with  the  conditions 
precedent  by  which  to  acquire  jurisdiction  to  make  the 
same;  and  (3)  that  the  improvement  has  not  been  made 
by  the  contractors  so  as  to  authorize  any  legal  or  equitable 
assessment  of  benefits  to  be  made,  and  that  any  attempt  in 
that  direction  would  be  a  taking  of  plaintiffs'  property  with- 
out due  process  of  law.  Following  these  allegations  the 
complaint  sets  up  numerous  alleged  irregularities  attend- 
ing the  action  of  the  common  council  in  disposing  of  the 
objections  and  adopting  the  reassessment  ordinance,  which 
sufficiently  appear  in  the  opinion.  The  relief  demanded 
is  that  the  street  warrants  be  canceled  as  fraudulent  and 
void,  and  the  assessment  of  benefits  be  invalidated  as  con- 
trary to  the  constitutional  rights  of  the  plaintiffs.  A  de- 
murrer to  the  complaint  being  sustained,  the  complaint 
was  dismissed,  and  plaintiffs  appeal.  Affirmed. 

For  appellants  there  was  a  brief  and  an  oral  argument 
by  Mr.  Ralph  Roloefson  Duniway, 

For  respondents  there  was  a  brief  over  the  names  of 
Lawrence  Alexander  McNary  and  John  P.  Kavanaugh,  with 
an  oral  argument  by  Mr,  Kavanaugh, 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

This  is  the  second  time  this  case  has  been  here,  so  far 
as  the  present  inquiries  are  concerned,  upon  substantially 
the  same  allegations  of  fact.  It  is  not  to  be  regarded  as  a 
second  appeal,  because  a  new  and  original  suit  has  been 
instituted,  and  some  of  the  original  questions,  which  were 


108  DuNiwAY  V.  Portland.  [47  Or. 

unalterably  settled  by  the  first  cause,  have  been  elimina- 
ted. All  others  are  now  insisted  upon,  but  some  of  these 
have  been  practically  determined,  and,  being  of  recent  in- 
vestigation, we  are  constrained  to  regard  them  also  as  set- 
tled. It  was  eventually  determined  that  the  former  case 
was  prematurely  commenced,  on  the  ground  that  it  was 
sought  to  enjoin  the  threatened  adoption  of  an  ordinance 
directing  a  reassessment  of  benefits;  such  reassessment 
being,  as  was  said,  ''within  the  jurisdiction  and  scope  of 
the  legislative  powers  of  the  council."  The  principle  upon 
which  the  holding  was  predicated  is  that  it  could  not  be 
ascertained  in  advance  (1)  whether  the  offensive  ordi- 
nance would  eventually  be  adopted,  (2)  whether  such 
ordinance  as  the  common  council  might  in  its  discretion 
finally  adopt  would  in  any  manner  intrench  upon  plain- 
tiffs' rights  in  the  premises,  and  (3)  whether  any  threat- 
ened injuries  to  the  plaintiffs  might  not  be  susceptible  to 
redress  by  writ  of  review  or  an  appeal  from  the  proceed- 
ings themselves. 

1.  Those  questions  now  involved  here,  but  practically 
determined  by  the  former  suit,  are:  (1)  That  section  400 
of  the  present  charter  does  not  authorize  the  taking  of 
private  property  without  due  process  of  law,  and  does  not 
therefore  contravene  the  Fourteenth  Amendment  of  the 
Federal  Constitution,  and  likewise  it  is  not  inimical  to  the 
provisions  of  sections  10  and  18  of  article  I  of  the  state 
constitution;  (2)  that  said  section  400  does  not  authorize 
a  reassessment  without  regard  to  benefits,  contracts  or 
rights,  and  is  retrospective  in  its  operation ;  and  (3)  that 
section  401  of  the  present  charter  was  not  inimical  to  sec- 
tion 9  of  article  VII  of  the  constitution  of  this  State,  as  lim- 
iting the  jurisdiction  of  the  circuit  court  in  its  appellate  and 
supervisory  capacity  or  functions.  These  matters  we  need 
not  allude  to  further,  and  will  pass  to  those  that  are  essen- 
tial to  the  final  disposition  of  the  cause. 


July,  1905.]  DuNiwAY  v.  Portland.  109 

2.  Let  us  first  inquire  as  to  the  purpose  of  section  400 
of  the  charter  and  what  procedure  is  authorized  by  its 
provisions.  Such  inquiry  will  aid  us  materially  in  arriv- 
ing at  a  correct  solution  of  the  questions  remaining.  The 
section  provides,  in  so  far  as  it  is  pertinent  to  this  inquiry, 
that  whenever  any  assessment  for  any  local  improvement, 
which  has  been  made  or  may  hereafter  be  made  by  the 
city,  has  been  set  aside,  annulled  and  declared  or  rendered 
void,  or  its  enforcement  refused  by  any  court  having  juris- 
diction, whether  directly  or  by  virtue  of  any  decision  of 
such  court,  or  when  the  council  shall  be  in  doubt  as  to  the 
validity  of  such  assessment,  it  may  by  ordinance  make  a 
new  assessment  or  reassessment  upon  the  lots,  blocks  or 
parcels  of  land  which  have  been  benefited  by  such  im- 
provement, to  the  extent  of  their  respective  and  propor- 
tionate shares  of  the  full  value  thereof.  It  is  further  pro- 
vided that  such  reassessment  shall  be  based  upon  the 
special  and  peculiar  benefit  of  such  improvement  to  the 
respective  parcels  of  land  assessed  at  the  time  of  its  orig- 
inal assessment,  except  that  interest  may  be  added  from 
the  date  of  delinquency,  at  the  discretion  of  the  council. 
The  manner  of  procedure  is  thereupon  prescribed.  The 
purpose  of  the  act  is  manifest  from  its  reading.  It  pro- 
ceeds upon  the  assumption  that  assessments  for  benefits 
received  by  reason  of  local  public  improvements  having 
been  made  are  liable  to  fail  on  account  of  some  irregu- 
larity in  the  procedure  or  some  nonobservance  of  juris- 
dictional provisions  in  the  charter,  and  is  designed  to 
supply  a  curative  procedure  to  supplement  the  preceding 
one  that  has  failed.  It  awards  a  new  and  supplementary 
remedy  for  impressing  upon  the  abutting  property  a  lien 
for  the  cost  of  the  special  benefits,  not  to  exceed  the  orig- 
inal cost  of  the  improvement,  because  of  the  failure  in  the 
first  instance  to  carry  the  undertaking  to  a  successful  ter- 
mination.   In  order  to  set  this  statute  or  charter  provision 


110  DuNiwAY  V.  Portland.  [47  Or. 

in  motion,  there  must  have  been  an  actual  attempt  in  good 
faith  under  the  regular  procedure  to  make  the  improve- 
ment, and  to  have  the  cost  thereof  assessed  against  the 
abutting  property,  resulting  in  a  failure  through  some  non- 
observance  of  charter  provisions,  by  oversight  or  mistake, 
which  proceeding  must  also  have  been  annulled  by  a  court 
of  competent  jurisdiction  by  reason  of  such  irregularity 
or  irregularities,  or  the  common  council  must  have  been 
in  doubt  as  to  its  validity.  These  things  are  conditions 
precedent  to  invoking  the  aid  of  the  provision  for  the  new 
assessment  or  reassessment.  These  latter  become,  there- 
fore, supplementary  to  the  ordinary  or  prior  regulations, 
whether  under  this  or  the  preceding  charter  of  1898,  for 
making  the  improvement.  They  are  designed  to  take  up 
the  new  assessment  or  reassessment  where  the  old  has 
failed,  and  to  carry  to  a  successful  termination  that  which 
has  been  declared  or  considered  a  nullity,  thus  correcting 
and  validating  the  whole. 

Statutes  of  similar  purpose  are  not  without  precedent, 
and  are  founded  in  justice  and  equity.  They  afford  an 
adequate  remedy  for  the  enforcement  of  payment  of  the 
costs  of  local  improvements  against  persons  who  have  been 
peculiarly  benefited  thereby,  through  the  enhancement  of 
the  value  of  their  property  and  the  rendering  of  it  more 
accessible  and  useful,  and  who  ought,  therefore,  in  morals 
and  public  justice,  to  bear  such  burden  to  the  extent  of 
the  benefits  received,  if  necessary;  otherwise,  they  will 
escape,  although  they  have  profited  materially  and  per- 
haps largely  by  the  venture  of  which  they  complain.  The 
remedy  is  not  for  a  collection  of  the  old  assessment  as  was 
that  afforded  by  section  156  of  the  old  charter,  but  for  a 
reassessment  of  benefits  derived  from  the  failed  improve- 
ment, not  failed  because  not  made,  but  failed  because  of 
an  irregularity  in  the  procedure  for  impressing  the  lien 
for  the  costs  of  the  benefits,  and  a  collection  of  such  reas- 


July,  1905.]  DuNiwAY  v.  Portland.  Ill 

sessraent.  In  support  of  the  procedure  and  principle  in- 
volved, see  Thomas  v.  Portland,  40  Or.  50  (66  Pac.  439); 
Cooley, Taxation  (2  ed.),  306;  Frederick  v.  Seattle,  13  Wash. 
428  (43  Pac.  364);  Cline  v.  Seattle,  13  Wash.  444  (43  Pac. 
367);  State  ex  rei  v.  City  of  Newark,  34  N.  J.  Law,  236; 
City  of  Emporia  v.  Norton,  13  Kan.  569;  Schenley  v.  Com- 
monwealth, 36  Pa.  29  (78  Am.  Dec.  359);  City  of  St,  Paul 
v.  Mullen,  27  Minn.  78  (6  N.  W.  424);  Mattingly  v.  District 
of  Columbia,  97  U.  S.  687  (24  L.  Ed.  1098);  Spencer  v.  Mer- 
chant,  125  U.  S.  345  (8  Sup.  Ct.  921,  31  L.  Ed.  763.) 

3.  Now  it  is  strenuously  insisted  that  the  work  was  not 
performed  or  the  improvement  made  by  the  contractors 
in  accordance  with  the  specifications  of  their  contract  with 
the  city.  We  may  well  assume,  and  we  think  it  to  be  the 
law  —  at  least,  it  is  reason  and  conformable  to  justice — that 
the  contract  must  have  been  substantially  complied  with, 
or  the  improvement  made  in  substantial  accord  with  the 
undertaking,  otherwise,  it  would  not  be  allowable  under 
any  conditions  to  make  the  reassessment.  It  is  plain  that 
an  assessment  could  not  be  levied  for  a  different  improve- 
ment than  the  one  contemplated  by  the  regular  procedure, 
and  for  a  like  reason  one  could  not  be  levied  for  an  im- 
provement that  was  not  made  to  conform  in  all  material 
respects  to  the  one  proposed.  Mr.  Cooley  says :  "In  the 
new  proceedings  the  party  concerned  will  have  the  oppor- 
tunity to  watch  the  various  steps,  and  to  be  heard  in  review 
of  them,  that  he  has  in  any  case,  and  will  be  precluded  by 
nothing  that  has  taken  place  in  the  proceedings  which 
have  proven  abortive.  The  reassessment  will  be  for  the 
purpose  merely  of  enforcing  against  him  a  duty  which  he 
was  likely  to  evade,  by  reason  of  nonfeasances  or  misfeas- 
ances of  the  officers  who  ought  to  have  enforced  it'^  Coo- 
ley, Taxation  (2  ed.),  310.  And,  in  further  elucidation  of 
the  subject,  Mr.  Justice  Taylor  says,  in  Rork  v.  Smith, 
55  Wis.  67,  82  (12  N.  W.  408,  414):  **The  city  authorities 


112  DuNiwAY  V,  Portland.  [47  Or. 

have  no  power  to  charge  the  plaintiff's  land  with  any 
amount  as  a  special  tax  for  doing  work  in  grading  the 
street  in  front  of  his  lot,  unless  such  grading  was  done  in 
substantial  accordance  with  the  plans  and  specifications 
previously  adopted  by  the  city  authorities."  This  was  a 
reassessment  proceeding.  By  the  provisions  of  the  section 
under  consideration  notice  is  required  to  be  given  to  the 
abutting  property  owners,  and  they  may  file  objections  in 
writing  to  the  reassessment.  As  to  these,  the  common 
council  must  grant  a  hearing  and  determine  their  validity. 
Plaintiffs  filed  written  objections,  as  indicated  by  the 
complaint;  but  it  is  not  clear  from  their  reading  whether 
they  were  intended  to  call  in  question  the  manner  in 
which  the  work  was  done,  or  whether  in  accordance  with 
the  specifications.  But,  however  this  may  be,  the  council, 
as  we  shall  see  presently,  presumably  passed  upon  the  ob- 
jections, and  the  plaintiffs  are  now*precluded  from  again 
raising  the  issue  in  this  collateral  way,  except  it  be  shown 
that  the  council  has  itself  proceeded  fraudulently :  Elliott, 
Roads  &  Streets  (2  ed.),  §  608 ;  Chance  v.  Portland,  26  Or. 
286  (38  Pac.  68);  Callister  v.  Kochersperger,  168  111.  334 
(48  N.  E.  156);  Craft  v.  Kochersperger,  173  111.  617  (50 
N.  E.  lOGl);  McEneney  v.  Town  of  Sullivan,  125  Ind.  407 
(25  N.  E.  540);  De  Puy  v.  City  of  Wabash,  133  Ind.  336  (32 
N.  E.  1016);  Cason  v.  City  of  Lebanon,  153  Ind.  567  (55 
N.  E.  768). 

4.  No  fraud,  as  it  pertains  to  the  common  council,  is 
adequately  alleged.  The  fraud  must  relate  to  the  proceed- 
ing on  the  reassessment,  because  the  original  proceeding 
is  an  invalidated  past  transaction,  and  we  look  in  vain  for 
any  implication  of  fraud  as  it  respects  the  action  of  the 
common  council  in  this  latter  relation. 

5.  Furthermore,  to  put  at  rest  any  controversy  touch- 
ing the  action  of  the  board  of  public  works  in  accepting 
the  improvement  in  the  first  instance,  we  may  say  that 


July,  1905.]  DuNiwAY  v,  Portland.  113 

the  allegations  of  fraud,  as  it  relates  to  their  action,  are 
insuifficient,  tested  as  they  are  by  demurrer.  The  perti- 
nent averment  is  that  the  board,  in  relianee  upon  the 
fraudulent  representations  of  said  contractors  and  the 
said  city  engineer  and  his  deputies  and  inspectors,  under- 
took to  and  did  accept  said  street.  This  falls  far  short  of 
charging  the  board  of  public  works  even  with  fraud  in  the 
premises,  so  that  their  acceptance  of  the  improvement 
must  be  held  to  be  valid  and  binding  in  any  collateral 
attack  wherein  it  is  sought  to  question  the  manner  in 
which  the  work  was  done.  We  hold,  therefore,  that  the 
case  made  is  insufficient  to  warrant  inquiry  touching  the 
manner  in  which  the  work  was  done  or  improvement  made. 

6.  In  this  view  of  the  allegations  of  the  complaint,  the 
procedure  cannot  be  regarded  as  an  attempt  under  the 
taxing  power  of  the  municipality  to  raise  money  for  pri- 
vate use;  that  is,  for  the  contractors,  and  for  Cook,  a 
holder  of  the  warrants,  contrary  to  the  Constitution  of 
Oregon,  Article  XI,  Section  9. 

7.  The  case  being  such  that  the  abutting  owners  were 
not  allowed  to  go  behind  the  action  of  the  board  of  public 
works  or  of  the  common  council  in  accepting  the  improve- 
ment, to  inquire  into  the  manner  of  doing  the  work,  it 
cannot  avail  plaintiffs  against  the  contractors  and  the 
holders  of  the  warrants,  and  their  demurrer  to  the  com- 
plaint is  just  as  effective  as  that  of  the  city. 

8.  Objections  are  made  to  the  manner  of  inaugurating 
the  reassessment  proceeding.  The  first  step  was  the  adop- 
tion of  a  resolution,  which,  after  reciting  that  the  original 
proceeding  had  been  declared  void  by  a  decree  of  the  cir- 
cuit court  for  Multnomah  County,  and  that  tlie  abutting 
property  had  been  peculiarly  benefited  by  the  improve- 
ment, defined  the  district  specifically  and  peculiarly  bene- 
fited, and  directed  the  city  auditor  to  prepare  within  10 

47  0b. 8 


114  DuNiwAY  V.  Portland.  [47  Or. 

days  a  preliminary  reassess m en t  upon  the  lots,  blocks  and 
parcels  of  lands  within  the  district,  to  the  extent  of  their 
respective  proportionate  shares  of  the  full  value  of  the 
improvement,  and  to  give  due  notice  to  the  property  own- 
ers affected.  In  this  relation  it  is  alleged  that  the  resolu- 
tion was  adopted  arbitrarily,  without  notice  to  plaintiffs  or 
an  opportunity  to  be  heard  with  reference  thereto;  but  it 
is  a  sufficient  answer  thereto  that  the  charter  provides  for 
ho  such  notice  or  hearing. 

In  pursuance  of  the  resolution,  the  auditor  published  a 
notice  as  follows : 

**  Reassessment  for  Improvement  of  East 
BuRNSiDE  Street. 

In  compliance  with  a  resolution  adopted  at  the  regular 
meeting  of  the  council,  held  February  18, 1903,  declaring 
the  district  benefited  by  the  improvement  of  East  Burn- 
side  Street,  from  the  east  line  of  East  Eighth  Street  to 
the  west  line  of  East  Twenty-eighth  Street,  and  directing 
the  auditor  to  prepare  a  preliminary  assessment  upon  the 
lots,  blocks,  and  parcels  of  land  within  said  district:  Now, 
Therefore,  Notice  is  Hereby  Given  that  such  assessment 
is  now  on  file  in  the  auditor's  office,  and  that  any  objec- 
tions to  such  assessment  must  be  filed  in  writing  with  the 
auditor  within  10  days  from  the  18th  day  of  March,  1903, 
the  last  day  of  publication  of  this  notice,  and  notice  is 
further  given  that  said  objections  will  be  heard  by  the 
council  at  a  meeting  to  be  held  on  the  first  day  of  April, 
1903,  and  all  persons  aggrieved  thereby  or  interested 
therein  must  be  present  at  said  meeting,  and  are  warned 
not  to  depart  therefrom  until  such  reassessment  has  been 
completed. 

Thomas  C.  Devlin,  Auditor. 

Portland,  Oregon,  March  7,  1903." 

It  is  then  further  alleged  that  the  auditor  did  not  forth- 
with mail  to  the  property  owners  any  kind  of  notice  what- 
ever, and  that  the  only  notice  sent  to  them  was  a  copy  of 
the  published  notice.    The  preliminary  reassessment  eon- 


July,  1905.]  DuNiwAY  v.  Portland.  115 

sisted  in  adopting  the  old  assessment  in  all  material  re- 
spects, but  adding  interest  when  the  assessment  had  not 
been  paid,  as  section  400  prescribes. 

9.  As  against  these  preliminary  steps  in  the  procedure, 
looking  to  a  reassessment  of  benefits,  many  objections, 
other  than  those  just  alluded  to,  were  interposed.  Among 
these,  it  is  insisted  that  the  resolution  should  have  con- 
tained findings  touching  the  substantial  completion  of  the 
improvement,  its  value,  and  the  benefits  conferred;  that 
the  auditor  did  not  make  the  preliminary  assessment 
within  10  days ;  that  the  notice  published  did  not  comply 
with  the  resolution  or  section  400  of  the  charter,  nor  did 
it  state  the  amount  of  the  assessment,  nor  that  it  was  upon 
any  property,  nor  what  property,  nor  the  amount  of  the 
assessment  against  any  parcel ;  and  counsel  conclude  by 
requesting  the  court  to  consider  ^*whether  this  general 
notice  published  in  this  case  is  sufficient  notice  to  make 
due  process  of  law,  when  it  is  the  only  notice  given."  In 
answer  to  these  manifold  objections  it  is  only  necessary 
to  observe  that  the  common  council  has  followed  in  all 
essentials  the  requirement  of  section  400. 

10.  A  resolution  defining  the  district  benefited  by  the 
improvement,  and  directing  the  auditor  to  make  the  pre- 
liminary assessment,  and  fixing  the  time  within  which  it 
should  be  done,  was  adopted.  The  auditor  gave  notice 
ample  in  form  to  notify  interested  parties  of  all  that  was 
being  done,  and  this  was  properly  served  by  publication. 
The  published  notice  being  regular,  an  irregularity  at- 
tending the  further  giving  of  personal  notice  through  the 
mails  is  not  fatal  to  the  procedure:  Section  420, Charter. 
This  is' all  that  need  be  said  touching  the  regularity  of  the 
preliminaries  of  the  reassessment  proceeding.  The  notice 
provided  was  svvfficient  to  give  the  plaintiffs  their  day  in 
court  upon  the  reassessment  of  benefits,  and,  having  been 


116  DuNiwAY  V.  Portland.  [47  Or. 

given  in' the  essential  manner  designated,  they  are  pre- 
cluded by  the  record. 

11.  Another  insistence  of  counsel  for  appellants  is  that, 
if  the  common  council  proceeded  regularly  in  the  acquire- 
ment of  jurisdiction  to  make  the  reassessment,  it  lost  such 
jurisdiction  before  taking  action  respecting  the  objections 
filed,  or  adopting  the  ordinance  approving  and  confirm- 
ing such  reassessment.  It  is  alleged  that  on  April  1, 1903, 
the  date  fixed  for  hearing  objections  to  the  preliminary 
reassessment,  that  being  a  regular  meeting  of  the  common 
council,  there  was  no  quorum  present,  and  the  chief  of 
police  did  not  notify  the  members  of  the  council  as  re- 
quired by  Ordinance  10906,  and  that,  in  violation  of  such 
ordinance,  the  council  adjourned  until  April  2,  at  9.30 
a.  m.,  which  was  not  a  day  for  the  regular  meeting  of  the 
council.  It  is  further  alleged  that  on  said  2d  day  of  April 
the  common  council  on  motion  continued  the  hearing  of 
said  objections  until  the  next  regular  meeting,  being  April 
15.  These  proceedings,  it  is  urged,  deprived  the  council 
of  further  jurisdiction  in  the  premises,  by  reason  of  the 
adjournment  to  April  2  and  not  to  the  next  regular  meet- 
ing,* because  not  in  consonance  with  rule  1,  adopted  by 
said  Ordinance  No.  10906  for  the  government  of  the  meet- 
ings of  the  council.  The  rule  provides  that,  **should  there 
not  be  a  quorum  present,  it  shall  be  the  duty  of  the  chief 
of  police  immediately  to  inform  the  absent  members  (ex- 
cept those  known  to  be  unavoidably  detained)  that  their 
presence  is  required  to  enable  the  common  council  to  pro- 
ceed to  business.  Should  they  fail  to  appear  on  such  notice, 
the  members  present  shall  adjourn  to  the  next  regular 
meeting  which  may  have  been  established  by  the  com- 
mon council."  From  the  allegations  it  will  be  seen  that 
the  chief  did  not  notify  the  absent  members  as  the  rule 
requires,  and  it  does  not  appear  that  any  were  unavoid- 
ably absent,  so  that  the  conditions  did  not  exist  which 


July,  1905.]  DuNiwAY  v.  Portland.  117 

f 
made  it  incumbent  upon  the  common  council  to  adjourn 

until  the  next  regular  meeting.  Looking  to  the  charter 
(section  66),  we  find  that  a  majority  of  the  members  of  the 
council  shall  constitute  a  quorum  to  do  business,  except 
as  otherwise  provided,  but  a  less  number  may  meet  and 
adjourn  from  time  to  time,  and  may  compel  the  attendance 
of  the  absent  members.  This  regulation  permits  just  such 
an  adjournment  as  was  taken,  and  rule  1  is  not  incon- 
sistent therewith,  as  it  contemplates  that  the  adjournment 
shall  be  to  the  next  regular  meeting  only  when  the  efforts 
by  taking  action  as  therein  prescribed  have  been  unavail- 
ing to  get  a  quorum. 

12.  The  presumption  is  always  in  favor  of  the  regularity 
of  the  meetings  and  adjournments  of  such  deliberative 
bodies,  and,  unless  it  is  otherwise  affirmatively  shown  by 
appropriate  allegations  and  proofs,  they  must  be  deemed 
authoritative  and  effective:  State  v.  Smith,  22  Minn.  218; 
People  V.  Common  Cotincil,  5  Lans.  11;  Staats  v.  Washing- 
ton,  45  N.  J.  Law,  318.  For  all  that  appears  therefrom, 
the  adjournment  to  April  2  was  regularly  taken,  and  the 
proceeding  on  that  day  in  continuing  the  hearing  upon 
the  objections  until  the  next  regular  meeting  was  regular. 

Like  objections  are  made  to  the  adjournment  from  the 
regular  meeting  of  March  16,  1904,  to  the  next  day,  when 
the  ordinance  was  finally  adopted  ;  but  these  are  untenable 
for  the  reasons  as  above. 

13.  At  the  regular  meeting  of  April  15, 1903,  on  motion, 
"the  matter  of  the  reassessment"  and  the  remonstrance 
were  "continued  on  the  table  until  the  next  regular  meet- 
ing," and  so  on  from  regular  meeting  to  regular  meeting 
until  finally  disposed  of.  It  is  suggested  that  the  council 
lost  jurisdiction  by  causing  the  matter  to  lie  on  the  table. 
The  record  nowhere  shows  that  the  measures  were  laid  on 
the  table.  The  manner  of  continuance  from  meeting  to 
meeting  was  by  motion  that  they  be  continued  "on  the 


118  DuNiwAY  V.  Portland.  [47  Or. 

« 
table."  There  was  uo  meeting  that  it  was  not  thus  con- 
tinued, so  that  the  matter  was  kept  in  hand,  as  though  it 
was  thought  to  be  necessary  to  regularly  continue  the 
business,  or  else  the  council  could  not  finally  act  upon  it. 
While  the  language  employed  was  not  altogether  appro- 
priate for  a  continuance  in  the  regular  way  from  meeting 
to  meeting,  it  was  not  effective  to  lay  the  matter  on  the 
table,  and  should  be  resolved  in  accordance  with  the  plain 
and  obvious  intention  of  the  council,  which  was  simply  to 
effect  a  continuance  of  the  business  from  meeting  to  meet- 
ing.   The  objection  is  not,  therefore,  Well  taken. 

14.  It  is  next  objected  that  the  council  refused  to  con- 
sider the  objections,  but  merely  ordered  them  to  be  placed 
on  file.  The  fact  is  that  the  minutes  of  the  meeting  as  set 
out  by  the  complaint  do  not  show  what  was  done  with  the 
objections.  A  remonstrance  was  placed  on  file,  but  we 
cannot  say  that  this  means  the  objections.  The  record 
being  silent  as  to  the  objections,  we  must  assume  that  they 
were  considered  and  found  to  be  without  merit,  because 
the  council  subsequently  passed  the  reassessment  ordi- 
nance as  though  they  were  not  in  the  way.  This  is  in 
accordance  with  the  rule  above  discussed  in  favor  of  the 
regularity  of  the  proceedings,  unless  affirmatively  shown 
to  be  otherwise. 

15.  This  leaves  but  one  other  question  for  considera- 
tion, which  is  as  to  the  alleged  invalidity  of  the  warrants 
issued  in  payment  of  the  improvement.  The  contention 
is  that,  as  the  former  proceeding  was  invalidated,  the  war- 
rants were  also  without  validity,  and  should  be  declared 
void.  The  nature,  however,  of  the  present  proceeding,  as 
we  have  seen,  is  to  supplement  the  regular  proceeding, 
and  to  carry  to  a  successful  termination  that  which  was 
inaugurated  primarily  ;  and  it  is  effective,  if  regularly  pur- 
sued, not  only  to  secure  a  valid  assessment  of  benefits,  but 
to  reach  back  and  validate  the  warrants,  so  far,  at  least. 


Oct.  1905.]  Banning  v.  Roy.  119 

as  the  reassessed  benefits  are  sufficient  for  that  purpose, 
and  they  will  not  be  invalidated  in  any  respect  or  in  any 
amount  until  the  occasion  arises  therefor. 

Finding  no  errors  in  the  record,  the  decree  of  the  cir- 
cuit court  will  be  affirmed.  Affirmed. 


Aii^ued  6  October,  decided  28  October,  1906. 
BANNINQ  V.  BOY. 

82  Pac.  706. 

Execution  Against  the  Pbrson— Requisite  Judgkent. 

1.  Under  Section  218,  B.  A  C.  Comp.,  providing  for  an  execution  against  the 
person  of  a  debtor  under  certain  circumstances,  the  writ  may  be  issued  though 
the  Judgment  did  not  recite  the  entry  of  an  order  for  the  arrest,  or  the  issuance 
of  the  writ  of  arrest,  or  direct  an  execution  against  the  person  of  the  defendant. 

Judgment— Specification  of  Execution. 

2.  It  is  not  essential  to  the  validity  of  an  execution  that  the  Judgment  on 
which  it  is  based  shall  specify  the  nature  of  the  writ,  since  the  relation  between 
the  judgment  and  the  execution  is  determined  by  law  and  not  by  a  court  order. 

BAiii  IN  Civil  Action  —  Return  of  Writ  of  arrest. 

8.  A  writ  of  arrest  having  issued,  and  the  defendant  having  given  ball  while 
in  custody  on  such  writ,  the  validity  of  the  bail  bond  is  not  affected  by  the  failure 
of  the  sheriff  to  return  the  writ  until  after  the  entry  of  J  udgment. 

Bail  in  Civil  action  —  Presence  and  absence  of  Defendant. 

4.  The  condition  of  a  civil  bail  bond  being  that  defendant  would  at  all  times 
be  amenable  to  the  process  of  the  court,  the  fact  that  he  was  about  the  court  room 
during  the  term  at  which  the  case  was  tried,  is  no  defense  to  an  action  on  the 
bond,  where  he  could  not  subsequently  be  found  to  answer  to  an  execution 
against  his  person  following  the  giving  of  the  bond. 

Collateral  Attack  on  Judgment. 

6.  In  an  action  on  a  civil  bail  bond,  the  sufllciency  of  the  complaint  on  which 
the  bond  is  based  is  conclusively  established  by  the  entry  of  a  judgment  thereon. 

From  Coos:  James  W.  Hamilton,  Judge. 

Statement  by  Mr.  Justice  Bean. 

This  is  an  action  by  H.  Banning  against  J.  L.  Roy  and 
J.  W.  Leneve  on  a  bail  bond.  On  or  before  the  7th  of 
March,  1904,  the  plaintiff  commenced  an  action  at  law  in 
the  circuit  court  for  Coos  County  against  one  Romander 
to  recover  money.  On  the  day  named  an  order  and  war- 
rant for  the  arrest  of  Romander  was  issued  in  the  action, 


120  Banning  v,  Roy.  [47  Or. 

and  he  was  arrested  by  the  sheriff  of  the  county.  On  the 
next  day  he  was  discharged  on  giving  bail,  by  causing  a 
written  undertaking  to  be  executed  in  favor  of  the  plain- 
tiff by  the  two  defendants  in  the  present  action,  to  the 
effect  that  he  (Romander)  would  at  all  times  render  him- 
self amenable  to  the  process  of  the  court  during  the  pend- 
ency of  the  action  and  to  such  process  as  might  be  issued 
to  enforce  the  judgment  therein,  if  one  was  recovered.  On 
April  26  a  judgment  was  rendered  against  him  and  in 
favor  of  the  plaintiff  for  $212.50,  together  with  costs  and 
disbursements,  but  no  reference  was  made  therein  to  the 
previous  arrest,  and  there  was  no  provision  that  execution 
against  the  person  might  issue.  Thereafter,  and  on  May  2, 
an  execution  against  the  property  of  Romander  was  issued 
on  the  judgment  and  returned  unsatisfied,  and  on  the  next 
day  an  execution  against  his  person  was  issued,  and  the 
sheriff,  returned  that  he  could  not  be  found.  Thereafter 
this  action  on  the  undertaking  of  bail  was  commenced. 
The  complaint  sets  out  the  making  of  the  order  for  the 
arrest  of  Romander,  his  arrest,  the  giving  of  theundertak- 
ing  for  his  release,  with  the  present  defendants  as  sureties, 
his  release  by  reason  thereof,  the  rendition  of  the  judg- 
ment against  him,  its  nonpayment,  the  issuing  and  return 
of  the  executions  against  the  property  and  the  person,  and 
demands  judgment  against  the  defendants.  The  answer 
admits  the  material  allegations  of  the  complaiat,  but 
alleges  affirmatively  (1)  that  the  order  or  warrant  of  arrest 
was  not  returned  by  the  sheriff  until  after  the  judgment  in 
the  action  had  been  rendered  and  entered ;  (2)  that  the 
judgment  rendered  in  favor  of  the  plaintiff  and  against 
Romander  makes  no  reference  to  the  arrest  or  the  warrant 
therefor,  nor  does  it  provide  that  it  may  be  enforced  by  an 
execution  against  the  person,  for  which  reasons  the  order 
for  the  wut  of  arrest  was  vacated  and  the  defendant  dis- 
charged ;  (3)  that  the  complaint  in  the  action  against  Ro- 


Oct.  1905.J  Banning  v.  Roy.  121 

mander  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action;  and  (4)  that  Romander  was  present  in  court 
each  day  during  the  term  at  which  the  judgment  was 
rendered,  and  remained  within  its  jurisdiction  until  on 
or  about  the  3d  day  of  May,  1904.  A  demurrer  to  the  new 
matter  in  the  separate  answer  being  overruled,  plaintiff 
declined  to  plead  further,  and  the  judgment  was  rendered 
against  him  on  the  pleadings,  from  which  he  appeals. 
The  case  was  submitted  on  briefs  under  the  proviso  of 
Rule  16  of  the  Supreme  Court:  35  Or.  587,  600. 

Reversed. 

For  appellant  there  was  a  brief  over  the  name  of  Sperry 
&  Chase. 

For  respondents  there  was  a  brief  over  the  name  of 
Andrew  Jackson  Sherwood, 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

1.  Before  the  plaintiff  can  recover  on  the  undertaking 
given  by  the  defendants  for  the  discharge  of  Romander 
from  arrest,  it  must  appear  that  an  execution  against 
his  person  was  legally  issued  on  the  judgment  recovered 
against  him.  The  contention  of  the  defendants  is  that  no 
such  execution  could  rightfully  issue,  because  the  judg- 
ment makes  no  reference  to  the  arrest  or  the  warrant 
therefor,  nor  does  it  provide  that'it  may  be  enforced  by  ex- 
ecution against  the  person.  The  question  thus  presented 
is  whether,  under  our  statute,  to  justify  an  arrest  and  im- 
prisonment of  a  defendant  upon  an  execution  in  a  civil 
action,  where  he  has  been  provisionally  arrested  and  dis- 
charged on  bail,  it  is  necessary  that  the  judgment  should 
show  the  issuance  of  the  writ  or  an  order  therefor,  or  direct 
an  execution  against  the  person. 

Section  218,  B.  &  C.  Comp.,  provides  that,  if  the  action 
is  one  in  which  the  defendant  might  have  been  arrested  as 
provided  in  section  260,  an  execution  against  the  person 


122  Banning  v,  Roy.  [47  Or. 

may  issue  on  the  judgmeut  therein  after  the  return  of  an  ex- 
ecution against  his  property  unsatisfied  in  whole  or  in  part 
(1)  when  it  appears  from  the  record  that  the  cause  of  action 
is  also  a  cause  of  arrest ;  (2)  when  the  cause  of  arrest  does  not 
appear  from  the  record  the  execution  may  issue  for  any  of 
the  causes  prescribed  in  section  260  that  may  exist  at  the 
time  of  the  application  ;  and  (3)  ''when  the  defendant  has 
been  provisionally  arrested  in  the  action,  or  an  order  has 
been  made  allowing  such  arrest,  and  in  either  case  the 
order  has  not  been  vacated."  In  the  first  and  third  the 
execution  issues  as  a  matter  of  course,  but  in  the  second 
it  can  only  be  issued  upon  leave  of  the  court  or  judge 
thereof.  This  section  (218)  is  the  only  law  providing 
when  and  under  what  circumstances  an  execution  may 
issue  against  the  person  of  a  defendant  in  a  civil  action, 
and  it  does  not  require  or  contemplate  that  the  judgment 
shall  contain  any  reference  to  the  matter.  If  the  action  is 
in  fact  one  in  which  the  defendant  might  have  been  ar- 
rested, and  the  other  conditions  provided  by  section  218 
exist,  it  is  sufficient  to  entitle  the  plaintiff  to  an  execution 
against  his  person,  without  any  order  to  that  effect  in  the 
judgment:  Corwinw.  Freeland,^!^.  Y,  560;  Hutchinson  \. 
Brand,  9  N.  Y.  208;  Elwood  v.  Gardner,  45  N.  Y.  349. 

2.  Unless  the  statute  otherwise  provides,  a  judgment  is 
limited  to  the  relief  sougTit  by  the  pleadings  (11  Enc.  PI. 
&  Pr.  958),  and  it  need  not  specify  the  kind  or  character 
of  the  execution  which  may  be  issued  for  its  enforcement : 
Cooney  v.  Van  Rensselar,  1  Code  Rep.  (N.  Y.)  88.  When 
the  judgment  is  rendered,  the  law,  and  not  the  court,  de- 
termines that  question.  There  are  two  kinds  of  execu- 
tions on  judgments  for  the  recovery  of  money  in  this  State 
—  one  against  the  property  and  the  other  against  the  per- 
son :  B.  &  C.  Comp.  §  214.  An  execution  against  the  prop- 
erty generally  issues  as  of  right,  but  an  execution  against 
the  person  can  only  issue  in  certain  enumerated  cases  and 


Oct.  1905.]  Banning  v.  Roy.  123 

under  certain  particular  circumstances:  B.  &  C.  Comp. 
§§  218,  260.  One  of  these  is  that  it  may  be  issued  when 
the  defendant  has  been  provisionally  arrested  or  an  order 
has  been  made  authorizing  his  arrest  and  is  still  in  force, 
and  the  execution  against  his  property  has  been  returned 
unsatisfied,  in  whole  or  in  part.  And  such  was  the  case 
under  consideration.  It  appears  from  the  pleadings  that 
the  defendant  in  the  action  in  which  the  undertaking  for 
bail  was  given  had  been  provisionally  arrested,  that  the 
order  for  his  arrest  has  not  been  vacated,  and  an  execution 
against  his  property  has  been  returned  unsatisfied.  The 
case,  therefore,  comes  within  the  statute.  The  California 
and  Washington  cases  relied  upon  by  the  defendants  were 
under  different  statutes  and  are  not  controlling  here:  Bur- 
richter  v.  Cliney  3  Wash.  St.  135  (28  Pac.  367);  Matoon  v. 
Eder,  6  Cal.  57;  Davis  v.  Lobinson,  10  Cal.  411;  Payne  v.  El- 
liot, 54  Cal.  339  (35  Am.  Rep.  80). 

3.  The  other  matters  alleged  in  the  answer  as  defenses 
were  not  argued  in  the  brief  of  defendants,  and  are  with- 
out merit.  The  neglect  of  the  sheriff  to  return  the  writ  of 
arrest  before  judgment  was  a  mere  irregularity  for  which 
the  plaintiff  was  not  chargeable  (Neimitz  v.  Conrad^  22  Or. 
164, 29  Pac.  548),  and  which  in  no  way  affected  the  validity 
of  the  arrest  or  the  order  therefor,  or  the  undertaking  given 
by  the  present  defendants. 

4.  Nor  is  it  any  defense  that  Romander  was  in  attend- 
ance upon  the  court  during  the  term  at  which  the  judg- 
ment was  rendered  or  remained  within  its  jurisdiction  for 
a  few  days  thereafter.  One  of  the  conditions  of  the  under- 
taking is  that  he  would  at  all  times  render  himself  amen- 
able to  such  process  as  might  be  issued  to  enforce  the  judg- 
ment, and  there  is  no  claim  that  execution  against  his 
person  was  not  issued  within  the  time,  if  it  could  legally  be 
issued  at  all. 


124  Horn  v.  United  States  Mining  Co.       [47  Or. 

5.  The  sufficiency  of  the  complaint  in  the  action  brought 
against  him  was,  of  course,  determined  by  the  court  ren- 
dering judgment,  and  cannot  be  questioned  in  this  collat- 
eral proceeding. 

The  judgment  of  the  court  below  is  reversed,  and  the 
cause  remanded  for  such  further  proceedings  as  may  be 
proper  not  inconsistent  with  this  opinion.     Reversed. 


Argued  19  July,  decided  15  August,  1906. 
HOBN  V.  UNITED  STATES  MINING  00. 

81  Pac.  1009. 

Appeal— AVAILABILITY  of  Objection. 

1.  The  objection  that  the  facU  stated  in  a  complaint  do  not  constitute  a  cause 
of  suit  may  be  first  urged  on  appeal,  and  defendant  is  not  concluded  by  the 
decree. 

Enforcement  of  Liens  Not  Obligatory. 

2.  The  perfecting  and  enforcing  of  a  lien  1h  a  privilege  granted  by  the  statute 
that  may  be  waived  or  claimed  by  the  lienor  at  his  pleasure,  but  if  he  elects  to 
claim  it,  he  mudt  comply  with  the  conditions  attached  to  the  grant. 

Perfectino  Miners*  Liens  — Time  for  Filing  Claim. 

3.  Under  a  statute  requiring  every  laborer  entitled  to  a  claim  of  lien  upon  a 
mine  to  file  his  claim  with  the  county  clerk  within  a  stated  time  after  ceasing  to 
labor  therein,*  the  filing  of  the  lien  within  the  time  prescribed  by  the  statute  is 
a  condition  precedent  to  the  preservation  by  the  laborer  of  the  inchoate  right  of 
Hen  arising  from  the  performance  of  the  work,  and  if  it  is  not  observed  the  lien  is 
lost. 

Computation  of  Time  for  Filing  Lien. 

4.  Under  a  statute  requiring  every  laborer  en  titled  to  a  claim  of  lien  on  a  mine 
to  file  the  same  with  the  county  clerk  within  a  stated  time  after  ceasing  to  labor 
therein,  the  time  within  which  to  file  a  Hen  is  reckoned  by  excluding  the  first 
(the  last  day  of  service  in  the  mine)  and  Including  the  last  day  of  the  period 
prescribed. 

From  Douglas:  James  W.  Hamilton,  Judge. 

Statement  by  Mr.  Chief  Justice  Wolverton. 

This  is  a  suit  by  William  Horn  against  the  United  States 
Mining,  Securities  &  Trust  Co.,  and  Arthur  Rowley,  to 
foreclose  an  alleged  mechanic's  or  miner's  lien.  The  com- 
plaint sets  out,  among  other  usual  and  necessary  allega- 


*  B  &  C.  Com  p.  g  5669  Is  here  referred  to,— Reporter. 


Aug.  1905.]    Horn  v.  United  States  Mining  Co.         125 

tions,  that  oil  and  between  the  24th  day  of  August  and  the 
7th  day  of  November,  1903,  the  plaintiff  performed  work 
and  labor  for  defendant  in  digging  a  tunnel  for  the  dis- 
tance of  75  feet  at  the  agreed  price  of  $8  per  foot,  and  of 
the  aggregate  value  of  $600;  that  $83.50  has  been  paid, 
leaving  a  balance  due  plaintiff  of  $516.50;  that  plaintiff 
on  January  7  duly  and  legally  filed  and  recorded  a  miner's 
lien  in  the  county  clerk's  office  for  Douglas  County,  and 
claims  a  lien  accordingly.  Such  is  the  lien  sought  to  be 
foreclosed.  There  was  a  motion  in  the  circuit  court  to 
strike  out  parts  of  the  complaint,  which  was  denied,  and 
a  decree  rendered  in  accordance  with  the  demand,  from 
which  the  defendant  appeals.  Reversed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr,  William  Mosby  LaForce. 

For  respondent  there  was  a  brief  over  the  names  of 
John  Thomas  Long  and  Ira  B,  Riddle ^  with  a^i  oral  argu- 
ment by  Mr.  Long, 

Mr.  Chief  Justice  Wolvbrton  delivered  the  opinion. 

1.  It  is  urged  here  for  the  first  time  that  the  complaint 
does  not  state  facts  entitling  the  plaintiff  to  relief.  As 
defendant  is  not  precluded  by  the  decree  from  making  the 
objection,  he  is  entitled  to  insist  upon  it  now^ 

2.  The  question  involved  is  w^hether  plaintiff  had  per- 
fected and  obtained  his  lien  as  claimed.  The  statute  im- 
poses the  duty  upon  every  laborer  entitled  to  a  claim  of 
lieu  upon  a  mine,  lode  or  deposit  to  file  his  claim  with  the 
county  clerk  of  the  county  in  which  the  mine  is  situated 
within  sixty  days  after  he  has  ceased  to  labor  therein. 
"The  right,"  say  the  learned  authors  of  the  American  and 
English  Encyclopedia  of  Law  (vol.  20,  2  ed.,  p.  493),  "to 
assert  and  perfect  a  mechanic's  lien,  is  very  generally  held 
to  be  a  privilege  which  the  lienor  may  exercise  or  riot,  at 
his  pleasure,  and  hence  is  subject  to  waiver."    Indeed,  this 


126  Horn  v.  United  States  Mining  Co.       [47  Or. 

court  has  held  as  much  in  Hughes  v.  Lansing,  34  Or.  118 
(55  Pac.  95,  75  Am.  St.  Rep.  574). 

3.  In  this  case  we  say,  construing  a  like  statute,  that 
"While  the  statute  gives  the  lien  in  the  first  instance  for 
a  specified  time,  without  the  assertion  of  any  formal  claim 
therefor,  it  is  made  incumbent  upon  the  lienor,  if  he  in- 
tends to  preserve  his  lien,  to  make  a  record  of  such  inten- 
tion, and  to  bring  suit  thereon  within  the  time  prescribed  ; 
and,  if  he  does  not  observe  these  regulations,  the  lien  must 
be  deemed  to  have  lapsed."  See,  also,  Ramsey^s  Appeal^ 
2  Watts,  228  (27  Am.  Dec.  301).  Thus  it  is  that  the  tiling 
of  the  lien  within  the  time  prescribed  by  the  statute  be- 
comes a  condition  precedent  to  preserving  the  inchoate 
right  of  lien  that  the  laborer  has  by  reason  of  performing 
his  work,  and,  if  not  observed,  the  lien  is  lost. 

4.  Both  upon  authority  and  under  the  Code  time  is 
reckoned  by  excluding  the  first  day,  or  day  from  or  after 
which  an  act  is  done,  and  including  the  last  of  the  period 
prescribed  :  28  Am.  &  Eng.  Enc.  Law  (2  ed.),  211;  Caroth- 
era  v.  Wheeler,  1  Or.  194;  O'Hara  v.  Parker,  27  Or.  156  (39 
Pac.  1004).  Governed  by  this  rule,  we  find  that  by  exclud- 
ing the  last  day  of  service,  namely,  November  7,  and  in- 
cluding the  last  of  the  sixty  days  given  for  filing  the  Hen, 
the  plaintiff  is  short  one  day;  that  is,  excluding  Novem- 
ber 7,  the  sixty  days  fully  expired  with  the  6th  of  January, 
1904,  and  the  filing  on  the  7th  was  too  late.  The  com- 
plaint was  therefore  insufficient  to  support  the  decree, 
which  leads  to  a  reversal,  and  the  cause  will  accordingly 
be  dismissed.  Dismissed. 


Aug.  1905.]  MuNDHENKE  V.  Oregon  City  Mfg.  Co.       127 

Argaed  12  Jaly,  decided  15  Aagast,  rehearing  denied  4  December,  1906. 
MUNDHENKE  u.  OREGON  GITT  MFG.  CO. 

81  Pac.  977 ;  1  L.  R.  A.  (N.  8.)  278. 

Assumption  of  Misk  by  Immature  Servant. 

1.  A  servant  of  immatare  years  assumes  such  ordinary  hazards  or  risks  of  bis 
employment  as  be,  throagh  his  degree  of  intelligence,  knows  or  should  know 
and  appreciate,  and  consequently  assumes  such  dangers  as  are  so  open  and  obvi- 
ous to  the  senses  that  one  of  bis  capacity  and  experience  should.  In  the  exercise 
of  the  care  and  prudence  common  to  persons  of  like  age  and  experience,  know 
and  appreciate,  but  not  others. 

Danger  op  Exposed  Cogs  and  Gearing— Assumption  of  Risk. 

Z  The  danger  ft-om  exposed  cogs  and  gearing  is  obvious  even  to  a  boy  of  sev. 
en  teen,  and  is  fiairly  a  risk  the  danger  of  which  he  assumes  by  remaining  at  work 
in  the  exposed  position. 

Negligence  of  Master  —  Contributory  Negligence  of  Servant  — 
Question  for  Jury— Assumed  Risk. 

8.  Whether  a  master  was  negligent  In  regard  to  the  causes  of  an  injury  to  a 
servant  caused  by  his  hand  being  caught  in  exposed  cogwheels  as  he  was  falling 
on  a  slippery  floor  where  he  was  obliged  to  work,  and  whether  the  immature 
servant  was  guilty  of  contributory  negligence  under  the  circumstances,  are  prop- 
erly left  to  the  Jury,  since  their  determination  involves  questions  of  care  and 
precaution  by  both  parties. 

From  Clackamas:  Thomas  A.  McBridb,  Judge. 

Statement  by  Mr.  Chief  Justice  Wolvbrton. 

This  is  an  action  by  Walter  F.  Mundhenke,  acting 
through  his  guardian,  against  the  Oregon  City  Manufac- 
turing Co.  for  the  recovery  of  damages  for  a  personal  in- 
jury, sustained  by^the  plaintiff,  a  minor.  He  was  at  the  time 
of  the  accident  about  the  age  of  16  years  and  8  months. 
The  injury  of  which  he  complains  consists  in  the  loss  of 
parts  of  two  fingers  on  the  left  hand.  The  defendant  was 
engaged  in  operating  a  woolen  mill,  and  the  plaintiff  was 
in  its  employ,  charged  with  the  duty  of  carrying  yarn 
which  was  in  the  form  of  bobbins  and  distributing  it  to 
the  looms.  The  particular  acts  of  negligence  upon  which 
plaintiff  predicates  the  action  are  stated  in  the  complaint 
in  substance  as  follows :  That  the  defendant  carelessly  and 
negligently  placed  the  box  used  for  receiving  yarn  or  fill- 
ing next  to  exposed  gearing  on  the  side  of  one  of  the  weav- 
ing looms,  which  said  gearing  the  defendant  carelessly 


128  MuNDHENKB  V.  OREGON  CiTY  Mfg.  Go.       [47  Or. 

and  negligently  permitted  to  be  exposed  in  a  dangerous, 
defective  and  unsafe  condition  ;  that  the  defendant  know- 
ingly, carelessly  and  negligently  allowed  the  floor  of  said 
room  next  to  the  box  where  the  plaintiff  was  employed  to 
carry  yarn  or  filling  to  become  oily  and  slippery,  and  in 
an  unsafe  and  defective  condition ;  that  the  plaintiff  was 
inexperienced  in  the  matter  of  his  employment,  and  un- 
acquainted with  the  dangerous,  defective  and  slippery 
condition  of  the  floor,  and  of  the  defective  and  dangerous 
condition  of  said  machinery,  and  of  the  dangers  incident 
to  said  employment ;  that  it  was  the  duty  of  the  defendant 
herein  to  instruct  the  plaintiff  as  to  the  dangers  incident 
to  and  in  connection  with  his  said  employment,  and  of  the 
dangerous  and  slippery  condition  of  said  floor,  and  of  the 
dangerous  condition  of  said  exposed  gearing;  that  the  de- 
fendant failed  and  neglected  to  instruct  and  inform  plain- 
tiff of  the  dangerous  and  slippery  condition  of  said  floor 
and  of  the  dangerous  and  defectivA  condition  of  said  ex- 
posed gearing,  and  because  of  such  failure  to  so  instruct 
plaintiff  he  was  injured  and  damaged  as  hereinafter  set 
forth  ;  and  that  while  plaintiff  was  so  performing  his  duties 
as  aforesaid,  being  engaged  in  putting  said  yarn  or  filling 
in  the  said  box  prepared  by  defendant,  ^nd  by  reason  of 
defendant's  negligence  in  allowing  said  floor  to  become 
oily  and  slippery  and  in  allowing  said  gearing  to  be  and 
remain  exposed,  and  without  fault  on  plaintiff's  part,  he 
slipped,  and  his  hand  came  in  contact  with  said  exposed 
gearin'g,  whereby  he  was  injured  —  describing  the  injury. 
The  answer  joins  issue  with  these  alleged  matters  of  neg- 
ligence, and  sets  forth  two  separate  defenses,  (1)  that  the 
danger,  whatever  existed,  was  open  and  obvious,  and  that 
plaintiff  assumed  the  risk;  and  (2)  that  he  was  himself 
negligent,  and  contributed  to  the  injury.  When  plaintiff 
rested,  defendant  moved  for  a  nonsuit,  which  motion  being 


Aug.  1905.]  MuNDHHNKE  V.  Oregon  City  Mfg.  Co.       129 

denied,  the  trial  proceeded,  resulting  in  a  verdict  and 
judgment  for  plaintiff  for  $400,  from  which  the  defendant 
appeals.  Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  Hogue 
&  Wilbur  and  Hedges  &  Griffith^  with  an  oral  argument  by 
Mr,  Ralph  William  Wilbur. 

For  respondent  there  was  a  brief  over  the  name  of 
V^Ren&  /ScAewftei,  with  an  oral  argument  by  Mr,  Christian 
ScheubeL 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

It  is  first  necessary  to  understand  the  nature  of  the 
machinery  and  the  attending  conditions  before  alluding 
to  the  facts  touching  the  manner  in  which  the  accident 
occurred.  At  the  end  or  side  of  the  looms,  facing  on  an 
aisle  or  passageway,  is  a  set  of  gearing,  consisting  of  two 
cogwheels  working  into  each  other,  the  lower  being  much 
the  larger.  The  point  of  contact  of  the  gearing  is  from 
two  feet  to  two  feet  six  inches  above  the  floor.  Immedi- 
ately at  the  end  of  the  looms  boxes  were  placed  for  receiv- 
ing the  yarn  or  filling.  These  stood  against  the  lower 
cogwheel  of  the  gearing,  and  when  being  filled  the  person 
doing  the  work  would  naturally  stand  in  the  passageway 
in  front  of  the  box  and  opposite  the  gearing,  so  that  the 
width  only  of  the  box  would  intervene  between  him  and 
the  gearing,  which  was  otherwise  exposed,  without  guard 
or  other  protection  to  prevent  contact  with  it.  The  plain- 
tiff testified  that  he  was  carrying  filling  for  the  weavers, 
and  had  been  so  occupied  for  three  months ;  that  neither 
the  foreman  of  the  mill  nor  any  one  else  had  instructed 
or  cautioned  him  relative  to  the  danger  of  coming  into 
contact  with  the  machinery ;  that  he  slipped,  and  was 
caught  in  the  cogwheels  of  the  loom,  and  his  fingers  were 
crushed.    Describing  the  incident  further,  he  says:   "I 

47  Or.  —  9 


130  MuNDHBNKB  V.  Oregon  City  Mfg.  Co.       [47  Or. 

slipped  with  my  left  foot,  and  threw  up  my  hand  so  I 
wouldn't  fall, as  a  person  naturally  will  throw  out  his  hand 
when  he  slips'';  and  further  testifies  that  he  was  taking  the 
bobbins  from  the  basket  in  which  he  had  carried  them  to 
the  box  and  putting  them  into  the  box,  which  was  full,  or 
nearly  so,  when  his  foot  slipped,  he  having  all  his  weight 
on  one  foot  at  the  time ;  that  the  floor  was  "greasy  and 
slippery";  that  he  had  slipped  and  fallen  upon  it  before, 
and  that  he  always  tried  to  do  his  work  carefully ;  that 
neither  the  foreman  nor  any  one  else  had  cautioned  him 
to  be  careful  in  standing  about  the  boxes,  or  that  he  might 
slip  upon  the  floor;  that  the  only  instructions  given  him 
were  as  to  where  to  get  the  yarn  and  where  to  deposit  it, 
and  that  nothing  was  said  to  him  about  the  danger  of 
slipping  and  falling  or  gf  getting  his  fingers  in  the  cog- 
wheels. 

On  cross-examination  he  testified  that  he  had  about  20 
boxes  to  fill  altogether,  and  further,  as  interrogated : 

"Q.  You  saw  those  cogs,  you  knew  where  they  were? 

A.  Yes,  sir. 

Q.  You  saw  those  when  you  first  went  there? 

A.  Yes,  sir. 

Q.  Did  you  see  them  as  they  came  together  in  the  mesh 
—  right  where  they  came  together  —  those  cogs? 

A.  Yes,  sir. 

Q.  Did  you  know  at  that  time  that  if  you  would  get 
your  fingers  caught  in  them  yon  would  get  hurt? 

A.  Anybody  would  know  you  would  get  hurt  if  you 
would  catch  your  fingers  in  there,  but  I  don't  think  any- 
body was  intending  to  get  hurt  there,  though.  *    * 

Q.  You  knew  it  would  be  dangerous  if  you  would  get 
your  fingers  in  there? 

A.  If  you  would  think  about  it,  yes,  sir.  ♦    * 

Q.  What  was  the  condition  of  this  floor  when  you  went 
there,  along  that  aisle  and  about  this  loom? 

A.  The  same  as  it  always  is. 


Aug.  1905.]  MuNDHENKE  V.  Oregon  City  Mfg.  Co.       181 

Q.  Has  it  always  been  that  way? 

A.  Yes,  sir.    . 

Q.  Just  as  it  was  to-day? 

A.  If  they  didn*t  clean  it  up  right  away,  it  was.  ♦  ♦ 

Q.  You  say  you  had  slipped  a  number  of  times  there  in 
the  mill.  Say  how  soon  after  you  went  there  was  the  first 
time  you  slipped? 

A.  I  might  have  slipped  the  same  day.  ♦  ♦ 

Q.  How  often  did  you  slip? 

A.  I  couldn't  say  how  often. 

The  witness  further  testified  that  the  company  swept 
and  cleaned  the  floor  once  a  week, on  Saturdays;  that  the 
accident  occurred  on  Friday,  and  that  the  floor  grew  more 
slippery  toward  the  end  of  the  week  than  it  was  at  the 
beginning, and  that  it  becomes  oilier  when  it  has  not  been 
swept  for  a  long  time.  This  testimony  was  corroborated 
by  other  witnesses.  Fred  Hoag,  another  "filler  boy,"  tes- 
tified that  the  "floor  was  pretty  oily  in  some  places,"  and 
that  he  had  himself  slipped  and  fallen  thereon.  It  was 
later  shown  that  the  box  was  from  one  and  one  half  to  two 
feet  deep  and  perhaps  two  feet  wide,  and  that  the  top  of  it 
was  from  four  to  six  inches  below  the  point  of  contact  of 
the  cogs. 

1.  That  it  was  the  duty  of  the  defendant  to  provide  safe 
machinery  and  a  reasonably  safe  place  in  and  about  which 
to  work  for  plaintiff  and  other  employees  to  discharge  the 
duties  assigned  them  is  conceded,  but  it  is  contended  that 
defendant  was  not  required  to  provide  and  furnish  the 
very  best  and  safest,  and  that  if  what  was  provided  and 
furnished  was  defective,  and  not  so  well  equipped  and 
guarded  as  it  might  have  been  to  render  it  more  safe 
and  secure  against  the  liability  of  accident  and  injury, 
plaintiff  knew  and  fully  appreciated  the  exact  conditions, 
and  that  by  engaging  and  continuing  in  the  employment 
he  assumed  the  risk,  and,  injury  having  resulted  to  him 
in  the  course  of  his  employment,  defendant  is  not  liable. 


132         MuNDHENKE  V.  Oreoon  City  Mfg.  Co.      [47  Or. 

This  is  the  strong  contention  of  defendant,  and  it  has  been 
urged  by  its  counsel  with  signal  ability.  There  is  in  this 
case  the  element  of  the  youth  of  the  party  injured.  It  has 
been  determined  by  this  court  that  only  such  care  and 
caution  to  avoid  the  dangers  of  accident  can  be  expected 
or  required  of  a  person  of  immature  age  as  is  common  to 
other  persons  of  his  years  of  prudence,  forethought  and 
discretion :  Dubiver  v.  City  Ry.  Co.,  44  Or.  227  (74  Pac. 
915,  75  Pac.  693,  2  St.  Ry.  Rep.  821).  This  must  neces- 
sarily  be  so,  because  infancy  and  youth  spring  into  man- 
hood and  maturity  by  degrees  only,  and  responsibility 
develops  accordingly.  In  general  the  servant  assumes  the 
ordinary  risks  and  dangers  incident  to  the  employment  in 
which  he  engages  to  the  extent,  and  only  to  such  extent, 
as  they  are  known  to  him ;  but  if  the  employee  be  of  im- 
mature years  the  assumption  of  risk  is  commensurate  only 
with  his  age,  experience  and  capacity.  As  is  said  by  Judge 
Sanborn  in  Bohn  Mfg.  Co.  v.  Erickson,  55  Fed.  943,  946 
(5  C.  C.  A.  341):  "lie  does  not  assume  latent  dangers 
known  to  the  master  that  are  actually  unknown  to  him, 
and  that  one  of  his  capacity  and  experience  would  not 
have  known  by  the  use  of  ordinary  care."  Again,  he  con- 
tinues :  "Risks  and  dangers  that  are  apparent  to  the  man 
of  long  experience  and  of  a  high  order  of  intelligence  may 
be  unknown  to  the  inexperienced  and  ignorant;  hence,  if 
the  youth,  inexperience  and  incapacity  of  a  minor  who 
is  employed  in  a  hazardous  occupation  are  such  that  a 
master  of  ordinary  intelligence  and  prudence  would  know 
that  he  is  not  aware  of  or  does  not  appreciate  the  ordinary 
risks  of  his  employment,  it  is  his  duty  to  notify  him  of 
them,  and  instruct  him  how  to  avoid  them.  This  notice 
and  instruction  should  be  graduated  to  the  age,  intelli- 
gence and  experience  of  the  servant.  They  should  be  such 
as  a  master  of  ordinary  prudence  and  sagacity  would  give 
under  the  circumstances,  for  the  purpose  of  enabling  the 


Aug.  1905.]  MuNDHKNKB  V.  Oregon  City  Mfg.  Co.       133 

minor  not  only  to  know  the  dangerous  nature  of  his  work, 
but  also  to  understand  and  appreciate  its  risks  and  avoid 
its  dangers."  The  doctrine  is  reaffirmed  much  later  by 
the  same  learned  judge:  Cudahy  Packing  Co,  v.  Marcan^ 
106  Fed.  645  (45  C.  C.  A.  515,  54  L.  R.  A.  258). 

So  it  is  that  a  minor  assumes  the  ordinary  hazards  or 
risks  of  his  engagements  that  he  through  his  degree  of  intel- 
ligence knows  or  should  know  and  appreciate,  and  conse- 
quently he  assumes  those  dangers  also  that  are  so  open  and 
obvious  to  the  senses  that  one  of  his  age,  capacity  and  ex- 
perience would,  in  the  exercise  of  the  ordinary  care  and 
prudence  common  to  persons  of  like  age  and  experience, 
know  and  appreciate,  and  would  be  expected  to  be  suffi- 
ciently attentive  and  alert  to  avoid.  In  other  words,  the 
minor's  assumption  of  the  hazards  and  dangers  attend- 
ing his  employment  is  to  be  determined  by  his  capacity 
to  know,  understand  and  appreciate  them,  and  his  cau- 
tion, alertness  and  aptitude  as  well  to  avoid  them.  The 
test  is  what  would  ordinarily  be  expected,  in  a  general 
sense,  of  persons  of  the  minor's  age  and  experience,  whose 
conduct  is  under  scrutiny ;  and  this  is  so  even  if  the  child 
is  sui  juris  —  that  is,  has  reached  years  of  discretion,  and 
has  become,  as  a  matter  of  law,  responsible  for  his  con- 
duct. No  higher  degree  of  care  will  be  expected  of  him 
than  is  usually  exercised  by  persons  of  similar  age,  judg- 
ment and  experience:  1  Labatt,  Mast.  &  Serv.  §§  291,398; 
7  Am.  &  Eng.  Enc.  Law  (2  ed.),  405,  406,  407;  Plumley  v. 
Birge,  124  Mass.  57  (26  Am.  Rep.  645);  Coombs  v.  New 
Bedford  Cordage  Co.,  102  Mass.  572  (3  Am.  Rep.  506); 
Bowling  v.  Allen  County,  74  Mo.  13  (41  Am.  Rep.  298); 
Rummel  v.  Dilworth  Porter  Co.,  131  Pa.  509  (19  Atl.  345, 
346, 17  Am.  St.  Rep.  827);  Railroad  Co.  v.  Gladmon,  82  U.  S. 
(15  Wall.)  401  (21  L.Ed.  114). 

2.  With  this  exposition  and  understanding  of  the  law 
relating  to  the  assumption  of  risks  by  minors,  we  may  turn 


134         MuNDHENKK  V.  Obbqon  City  Mfg.  Co.       [47  Or. 

to  the  facts  of  the  case.  As  it  pertains  to  the  exposed  gear- 
ing at  the  end  of  the  loom,  that  presented  a  danger  so  open 
and  obvious  that  plaintiff,  considering  his  age,  must  surely 
have  known  and  fully  appreciated  it.  He  could  not  have 
been  so  stupid  as  not  to  have  known  that  if  he  got  his  hand 
between  the  cogs  he  would  get  hurt.  He  must  have  known 
also  how  to  avoid  the  danger,  which  was  simply  not  to  come 
into  contact  with  it,  and  the  responsibility  was  his,  notwith- 
standing he  was  not  warned  of  a  result  which  he  must  have 
understood  and  appreciated  as  well  without  the  warning  : 
Ciriack  v.  Merchants'  Woolen  Co.,  146  Mass.  182  (15  N.  E. 
579, 4  Am.  St.  Rep.  307);  Carrington v.  Mueller,  65  N.  J.  Law, 
244  (47  Atl.  564).  This  in  the  abstract,  unconnected  with 
the  condition  of  the  passageway  and  floor  upon  which  plain- 
tiff was  required  to  walk  and  stand  while  in  the  discharge 
of  the  duty  assigned  him. 

3.  Plaintiff's  evidence  tended  to  show  that  the  way  was 
swept  and  cleaned  but  once  a  week,  that  it  was  allowed  to 
become  greasy  and  oily,  and  consequently  slippery,  in- 
secure and  unsafe  for  use.  Plaintiff  had  slipped  and  fallen 
perhaps  a  number  of  times,  and  so  had  Hoag,  another 
"filler  boy,"  attesting  unmistakably  its  insecurity.  The 
accident  occurred  on  Friday,  and  the  sweeping  and  clean- 
ing was  usually  done  on  Saturday,  so  that  it  wuuld  be  but 
a  reasonable  inference  that  the  way  was  in  a  bad  condition 
at  the  time  of  the  accident.  The  proximate  cause  of  the 
accident,  according  to  plaintiff,  was  the  circumstance  that 
he  slipped  on  the  floor,  thus  causing  him  to  throw  out  his 
hand,  which  came  in  contact  with  the  gearing.  He  was 
not  warned  as  to  the  condition  of  the  passageway,  but, 
notwithstanding,  he  must  have  known  much  about  it. 
This  he  admits.  It  was,  however,  a  variable  condition  that 
he  had  to  contend  with.  Sometimes  the  way  would  be  less 
safe  than  others,  and  it  would  be  going  quite  beyond  the 
authorities  to  say  as  a  matter  of  law  that  he  did  not  use 


Aug.  1905.]  MuNDHENKE  V.  Oregon  City  Mfg.  Co.       135 

or  observe  the  care,  precaution  and  foresight  common  to 
one  of  his  age,  intelligence  and  experience  that  would  be 
expected  of  him  to  avoid  getting  his  hands  between  the 
cogs. 

The  condition  and  pertinent  fact  are  so  peculiarly  a 
matter  for  the  jury  that  we  are  not  disposed  to  take  it 
away  from  them.  The  gearing  was  very  near  the  place 
in  which  plaintiff  was  depositing  the  filling,  and  a  mis- 
direction of  the  hand  in  but  a  few  inches  would  carry  it 
to  the  point  of  danger ;  and  it  is  reasonably  inferable  that 
the  slipping  of  the  foot  was  the  adequate  proximate  cause 
of  the  accident.  It  is  but  a  humane  duty  that  the  em- 
ployers of  youth  about  factories  should  observe  every 
reasonable  precaution  to  protect  the  comparatively  un- 
wary from  accident  and  disaster.  If  the  gearing  in  the 
present  case  had  been  covered  or  hooded,  which  could 
have  been  done  at  a  trifling  expense,  no  accident  could 
have  happened,  and  if  the  aisle  had  been  kept  clean  of 
grease  it  is  quite  probable  that  the  result  would  have  been 
avoided.  The  condition  of  the  passageway  was  a  variable 
one  as  we  have  seen,  and  was  surely  out  of  condition  at 
times,  as  the  carrier  boys  were  slipping  and  falling  oc- 
casionally. This  presents  a  matter  for  the  jury  to  say,  in 
the  first  place,  whether  or  not  it  was  negligence  in  the 
defendant  to  allow  it  to  get  into  an  unsafe  condition,  and, 
in  the  second  place,  it  was  also  manifestly  pertinent  for 
them  to  determine  whether  plaintiff  used  the  precaution 
that  boys  of  his  age  are  wont  to  observe  to  avoid  the 
danger.  It  is  a  matter  of  common  knowledge  that  a  boy 
of  the  age  of  plaintiff  would  not  be  as  careful  and  cautious 
in  going  to  and  fro  upon  a  slippery  way  as  an  adult,  and 
it  was  for  the  jury  to  say  whether  he  acted  with  that  pre- 
caution in  the  premises  as  is  common  to  other  boys  of  his 
age  and  experience ;  for,  if  he  did  so  act,  negligence  could 
not  be  imputed  to  him,  and  he  assumed  no  risk  that  he 


136  Lake  County  v.  Schroder.  [47  Or. 

would  not  have  avoided  by  the  observation  of  like  pre- 
caution. 

Both  these  inquiries  being  decided  against  the  defend- 
ant, the  judgment  of  the  circuit  court  should  be  afBrraed, 
and  it  is  so  ordered.  Affirmed. 


Argued  11  July,  decided  7  August,  1005. 
liAKE  GOUNTT  v,  SCHBODEB. 

81  Pac.  942. 

Taxation— Constitutional  Requirement  of  Uniformity— Validity 
OF  Migratory  Stock  Law  of  1905. 

A  statute  such  as  Laws  1905,  pp.  273,  277,  providing  for  the  assessment  and  tax- 
ation of  certain  classes  of  personal  property  at  the  same  rate  of  levy  as  other 
property,  unless  the  owner  Is  without  sufficient  real  estate  to  Insure  payment  of 
the  tax,  in  which  case  the  assessment  shall  be  made  at  the  rate  of  the  preceding 
year,  and  which  falls  to  provide  for  a  subsequent  adjustment  or  equalization  of 
the  taxes  collected  Trom  the  owner  In  accordance  with  the  rate  of  levy  for  the 
preceding  year,  in  case  such  rate  differs  from  the  rate  for  the  current  year  In 
which  the  taxes  are  collected,  is  repugnant  to  Const.  Or.  Art.  I,  g  82,  requiring 
taxes  to  be  equal  and  uniform,  and  Article  IX,  g  1,  requiring  the  legislature  to 
provide  for  a  uniform  and  equal  rate  of  assessment  and  taxation. 

From  Lake  :  Henry  L.  Benson,  Judge. 
Action  by  Lake  County  against  A.  B.  Schroder.    From 
a  judgment  of  dismissal,  plaintiff  appeals.     Affirmed. 

For  appellant  there  was  a  brief  over  the  name  of  Andrew 
M,  Crawford,  Attorney  General,  and  W.  J.  Moore,  District 
Attorney,  with  an  oral  argument  by  Mr.  Crawford. 

For  respondent  there  was  a  brief  over  the  names  of 
Charles  A,  Cogswell  and  William  Addison  Wilshire,  with 
an  oral  argument  by  Mr,  Cogswell. 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

This  is  an  action  by  the  county  to  recover  against  the 
owner  upon  an  assessment  of  his  live  stock,  which  he  was 
about  to  remove  into  another  county,  according  to  the  rate 
of  levy  of  the  previous  year,  in  pursuance  of  an  act  of  the 
legislative  assembly,  entitled  "An  act  to  provide  for  the 


Aug.  1905.]       Lake  County  v.  Schroder.  137 

assessment  and  taxation  of  live  stock,"  etc.;  it  being  al- 
leged that  the  defendant  has  no  real  property  with  which 
to  secure  the  payment  of  such  tax.  A  demurrer  being  sus- 
tained to  the  complaint,  judgment  was  rendered  dismiss- 
ing the  action,  from  which  plaintiff  appeals. 

Plaintiff's  cause  of  action  depends  entirely  upon  the 
proper  construction  of  the  act  under  which  it  is  instituted  : 
Laws  1905,  p.  273,  277.    In  epitome,  the  act  provides : 

Section  1.  That  all  live  stock  kept,  driven,  or  pastured 
in  more  than  one  county  in  the  State  during  the  year  shall 
be  subject  to  taxation  in  each  of  the  counties  in  proportion 
to  the  time  it  is  permitted  to  range  therein,  respectively. 

Section  2.  That  all  live  stock  shall  be  assessed  for  taxa- 
tion in  the  county  in  which  it  is  found  at  the  time  fixed 
by  law  for  assessment  of  all  properties  in  the  State,  such 
county  to  be  known  as  its  **  home  county  ";  that  at  the  time 
of  such  assessment  the  owner  shall  make  and  deliver  to 
the  assessor  a  written  statement  under  oath,  showing  by 
appropriate  description  the  different  kinds  of  such  live 
stock  within  the  county  belonging  to  him,  and  giving  the 
full  time  during  the  current  year  that  it  has  been  or  will 
remain  in  such  county ;  that  *'such  live  stock  and  the 
owner  thereof  shall  be  liable  to  said  county  for  the  taxes 
thereon  at  the  rate  of  levy  for  all  state,  county,  and  other 
purposes,  as  other  property  is  liable";  and  that  the  owner 
thereof  shall,  unless  sufficient  real  estate  ample  to  secure 
the  same  is  liable  therefor,  pay  to  the  assessor,  at  the  time 
of  such  levy  or  assessment,  the  whole  amount  of  said  taxes 
for  the  full  year  at  the  rate  of  the  last  preceding  levy,  and 
take  his  receipt  therefor. 

Section  3.  That  whenever  such  live  stock  is  removed, 
kept,  or  pastured  in  another  county,  other  than  the  home 
county,  the  owner  thereof  shall,  within  15  days  from  the 
time  of  entering  such  county,  notify  the  stock  inspector 
thereof  that  he  has  entered  the  county  with  live  stock,  giv- 
ing the  date,  description,  etc.;  that  he  shall  also  make  and 
deliver  to  such  inspector  a  written  statement  under  oath, 
similar  in  all  respects,  so  far  as  practicable,  to  the  state- 
ment required  in  the  home  county,  showing  the  full  length 


138  Lake  County  v,  Schroder.  [47  Or. 

of  time  during  the  current  year  that  such  stock  has  been 
and  will  remain  in  such  county,  and  that  the  taxes  thereon 
for  such  year  have  been  fully  paid  in  the  home  county, 
producing  at  the  same  time  for  inspection  the  receipt  for 
such  taxes,  or,  if  their  payment  has  been  secured,  the  cer- 
tificate showing  the  same,  and  such  live  stock  and  the  owner 
thereof  shall  be  liable  to  said  county  for  the  particular 
portion  of  the  taxes  thereon  for  the  full  length  of  time  that 
the  stock  has  been  or  will  remain  within  the  said  county 
during  the  year,  according  to  the  last  preceding  rate  of 
levy  in  said  county  for  all  county,  state,  and  other  pur- 
poses, as  other  property  in  said  county  is  liable ;  that  said 
owner  shall,  before  any  of  such  live  stock  shall  leave  the 
county,  pay  said  taxes  to  the  stock  inspector  of  said  county, 
or  shall  secure  the  payment  of  the  same  to  the  satisfaction 
of  the  inspector,  and  take  his  receipt  or  certificate  therefor. 

Section  4.  That  as  soon  as  any  live  stock  has  been  re- 
turned to  its  home  county,  or,  if  not  so  returned,  then 
before  the  expiration  of  the  year,  the  owner  shall  present 
the  receipt  or  receipts  secured  by  him,  showing  the  parts 
of  the  year  for  which  taxes  have  been  paid  in  other  coun- 
ties under  and  in  pursuance  of  the  provisions  of  this  act, 
and  such  owner  shall  be  entitled  to  receive  from  the  treas- 
ury of  the  home  county  out  of  the  migratory  stock  fund 
such  part  of  the  amount  of  taxes  paid  as  the  total  periods 
of  time  for  which  taxes  have  been  paid  in  other  counties 
within  the  State,  as  shown  by  the  receipts  therefor,  is  to 
the  whole  year. 

Section  5.  That  all  taxes  that  shall  become  due  to  any 
county  under  these  provisions  shall  be  a  personal  debt  and 
demand  against  the  owner  to  whom  the  property  was 
assessed,  and  may  be  enforced  by  any  proper  action  in  the 
name  of  the  county  in  any  court  of  competent  jurisdiction, 
and  secured  by  attachment  or  other  provisional  remedy; 
and  said  taxes  shall  be  a  first  lien  upon  the  live  stock, 
wherever  found  in  the  State,  and  a  lien  upon  all  real  estate 
belonging  to  any  owner  of  said  live  stock  situated  within 
the  county  to  which  said  taxes  are  due  and  payable,  and 
said  lien  shall  only  be  discharged  by  the  actual  payment 
of  the  taxes. 


Aug.  1905.]       Lake  County  v.  Schroder.  139 

There  is  an  obscurity  attending  this  statute,  and  it  is 
somewhat  difficult  to  determine  just  what  it  means.  In 
section  2  (page  274)  it  prescribes,  as  will  be  noted,  that 
such  live  stock  and  the  owner  thereof  "shall  be  liable  to 
said  [home]  county  for  the  taxes  thereon  at  the  rate  of  levy 
for  all  state,  county  and  olher  purposes  as  other  property 
is  subject."  This  seemingly  refers  to  the  rate  of  levy  for 
the  same  or  current  year  that  is  applied  to  other  property, 
but  the  succeeding  clause  is  not  in  harmony  with  such 
rendering.  It  requires  the  owner,  unless  sufficient  real 
estate  ample  to  secure  the  same  is  liable  therefor,  to  pay 
the  assessor  at  the  time  of  such  assessment  the  whole 
amount  of  said  taxes  for  the  full  year  at  the  rate  of  the  last 
preceding  levy.  If,  therefore,  the  owner  has  no  real  prop- 
erty, he  must  pay  the  taxes  at  the  preceding  year's  rate 
of  levy.  This  latter  idea  is  again  embodied  in  the  third 
section  of  the  act,  except  that  the  payment  is  required  to 
be  made  according  to  the  last  preceding  rate  of  levy  in  the 
county  other  than  the  home  county.  So,  in  section  5,  all 
taxes  that  shall  become  due  to  the  county  under  the  pre- 
ceding provisions  of  the  act  are  made  a  personal  debt  and 
demand  against  the  owner  to  whom  the  property  is  first 
assessed,  which  the  county  is  entitled  to  enforce  by  action. 
This  has  relation,  unmistakably,  to  the  demand  created 
at  once  when  the  assessment  is  concluded  by  computation 
at  the  last  preceding  rate  of  levy,  because  the  levy  for  the 
current  year  would  not  be  made  until  a  very  much  later 
date.  So  that  the  rate  of  levy  according  to  which  pay- 
ment shall  be  made  is  by  manifest  intendment  other  than 
that  for  the  current  year  by  which  other  property  is  liable. 

While,  then,  we  have  the  seeming  condition,  under  the 
act,  that  the  owner  is  liable  for  the  taxes  on  his  live  stock 
at  the  rate  of  levy  applicable  to  other  property,  yet,  if  he 
has  no  realty;  he  is  forced  to  pay  according  to  the  preced- 
ing year's  levy,  and  there  is  no  method  devised  or  pro- 


140  Lake  County  v,  Schroder.  [47  Or. 

vided  by  which  he  may  have  the  matter  subsequently 
adjusted  or  equalized,  so  it  must  result  that  finally  he  will 
either  pay  more  or  less  than  at  the  rate  of  levy  for  the 
current  year,  according  as  that  of  the  preceding  year  is 
more  or  less.  If  it  was  the  intendment  of  the  legislature 
that  the  owner  should  only  pay  as  the  act  seemingly  has 
made  him  liable,  he  would  be  finally  mulcted  at  a  greater 
rate  if  the  rate  of  levy  for  the  preceding  year  was  higher 
than  for  the  current  year.  Not  having  provided  other- 
wise, we  must  conclude  that,  at  least  where  the  owner  has 
no  real  estate  within  the  county  by  which  to  secure  the 
tax,  it  was  intended  that  he  should  eventually  be  liable 
for  the  rate  of  levy  for  the  preceding  year,  which  may  be 
more  or  may  be  less  than  for  the  current  year.  This  is  a 
fatal  defect  in  the  law.  Whether  an  oversight  or  not,  we 
cannot  tell.  It  puts  the  owner  of  live  stock,  who  must  pay 
his  taxes  at  once,  at  a  disadvantage,  as  compared  with  the 
owner  of  other  stock  not  migratory,  because  he  must  pay 
at  a  different  rate  of  levy.  Of  course,  the  disadvantage  to 
him  arises  only  when  he  has  to  pay  at  a  higher  rate  of 
levy.  Of  the  lower  rate  he  could  not  complain.  There 
exists  here  an  inequality,  and  it  is  left  for  us  to  inquire 
whether  it  is  such  as  is  inhibited  by  the  constitution. 

The  provisions  of  the  constitution  that  have  application, 
if  at  all,  in  the  premises,  are  the  latter  clause  of  article  I, 
section  32:  **A11  taxation  shall  be  equal  and  uniform,"  and 
the  first  clause  of  article  IX,  section  1 :  **The  legislative 
assembly  shall  provide  by  law  for  uniform  and  equal  rate 
of  assessment  and  taxation."  These  clauses  are  analyzed 
and  discussed  with  great  perspicuity  in  Crawford  v.  Linn 
County,  11  Or.  482  (5  Pac.  738),  in  a  very  able  and  learned 
opinion  by  Mr.  Chief  Justice  Waldo,  and  their  purposes 
are  made  perfectly  plain.  Speaking  of  the  latter  clause, 
he  says:  "The  word  *rate'  is  used  in  a  somewhat  different 
sense  when  applied  to  the  assessment  from  that  when  ap- 


Aug.  1905.]       Lake  County  v.  Schroder.  141 

plied  to  taxation.  *The  terra  "rate"  may  apply  either  to 
the  percentage  of  taxation,  or  to  the  valuation  of  prop- 
erty': State  V.  Utter,  34  N.  J.  Law,  489.  It  is  applied  in 
this  clause  in  each  sense  —  in  the  former  sense  to  the  tax- 
ation, and  in  the  latter  to  the  assessment.  It  is  evident 
that  equality  in  the  rate  of  assessment  means  proportional 
valuation  —  relative,  not  absolute,  equality;  while  equality 
in  the  rate  of  taxation  means  that  the  percentage  shall 
be  the  same,  or  absolutely  equal.  The  result  is  relative 
equality  of  taxation.  «  «  If  the  rate  of  assessment  and 
taxation  be  equal,  it  is  conceived  it  will  be  uniform ;  that 
is,  that  no  meaning  can  be  attached  to  the  word  *  uniform' 
which  is  not  conveyed  by  the  word  *equal.'  If  the  rate  is 
everywhere  equal,  or  the  same,  it  will  be  uniform,  neces- 
sarily. If  the  rate  is  varied,  so  that  property  of  different 
kinds  or  in  different  localities  is  valued  or  taxed  at  differ- 
ent rates,  the  rate  will  be  unequal,  and  so  not  uniform,  and 
so  far  as  it  is  equal  it  will  also  be  uniform."  It  is  perfectly 
manifest  that  the  rate  of  levy  referred  to  in  the  act  under 
consideration  signifies  the  percentage  of  levy  or  taxation 
upon  the  property  of  the  individual.  That  percentage  is 
such  as  is  fixed  by  law  for  state  purposes,  added  to  the 
county  levy,  made  in  pursuance  of  Section  3085,  B.  &  C. 
Comp.,  and  the  aggregate  denotes  the  rate  of  levy  or  the 
rate  or  percentage  of  taxation  that  the  taxpayer  must  pay 
of  the  public  revenues  upon  his  property.  This  is  the 
same  that  the  constitution  guarantees  shall  be  uniform 
and  equal,  and  the  same  that  Chief  Justice  Waldo  so 
aptly  determines  in  meaning  and  application. 

The  term  **rate,"  as  applied  to  the  word  ** taxation," 
means  percentage  of  taxation,  which  is  equivalent  to  the 
percentage  or  rate  of  levy,  and  is  required  to  be  absolutely 
equal,  not  relatively  equal  and  uniform,  which,  when  con- 
nected up  with  relative  equality  in  the  assessment,  results 
in  relative  equality  in  taxation.    Now,  we  must  take  it  for 


142  Lake  County  v,  Schroder.  [47  Or. 

granted  that  the  rate  of  levy  is  not  the  same  for  each  year. 
It  may  be  less  for  one  year  and  greater  for  another,  and 
in  that  respect  it  is  neither  equal  nor  uniform,  nor  was  it 
ever  intended  to  be  so.  So  that  the  statute  under  consid- 
eration in  effect  provides  upon  its  face  for  the  demand  and 
payment  of  a  rate  of  taxation  that  is  neither  equal  nor 
uniform  with  the  ordinary  levy  of  taxation,  without  an 
opportunity  of  having  the  same  equalized  in  any  manner; 
and  hence  the  statute  is  for  this  single  cause  inimical  to 
the  constitutional  guaranty  that  a  uniform  and  equal  rate 
of  assessment  and  taxation  shall  be  provided  for  and  that 
all  taxation  shall  be  equal  and  uniform. 

Rode  V.  Siebe,  119  Cal.  518  (51  Pac.  869, 39  L.  R.  A.  342), 
is  cited  and  relied  upon  by  counsel  for  the  appellant  as 
authority  for  their  position  that  the  act  in  question  is  valid  ; 
but  the  act  there  considered  contains  the  very  provision 
that  is  lacking  here,  and  was  announced  as  one  of  the  dis- 
tinguishing reasons  why  the  act  was  upheld  by  the  major- 
ity of  the  court,  the  court  saying:  '^Provision  is  made  for 
refunding  to  the  taxpayer  any  excess  in  the  collection  and 
for  the  payment  by  him  of  any  deficiency."  Were  it  not 
for  this  provision,  the  act  would  doubtless  not  have  been 
upheld. 

Another  objection  is  raised  respecting  the  constitution- 
ality of  the  statute — that  is,  that  no  notice  or  adequate 
hearing  is  provided  for  the  owner  of  such  live  stock  as  is 
within  the  purview  of  the  act,  before  he  is  precluded  by 
the  assessment,  and  that  the  statute  is  void  for  that  reason  ; 
but,  as  the  case  has  been  disposed  of  on  the  first  objection, 
it  is  unnecessary  that  we  decide  this  latter  question  now. 

The  judgment  of  the  circuit  court  should  be  affirmed, 
and  it  is  so  ordered.  Affirmed. 


Aug.  1905.]      Mee  v.  Bowden  Mining  Co.  143 

Angued  19  July,  decided  15  Aus^ust,  1905. 

MEE  V.  BOWDEK  MINIKa  GO. 

HI  Pac.  9flO. 

Mastbr  and  Skbvant— Discharge— Instructions. 

1.  In  an  action  for  services  performed,  where  the  issue  was  an  implied  dis- 
charge, and  the  court  charged,  without  exception  from  defendant,  that  if  plain- 
tiff went  Into  defendant's  employ  at  a  stipulated  salary  without  any  time  being 
fixed  as  to  how  long  he  should  work,  he  was  entitled  to  wages  until  such  time  as 
be  bad  been  notified  of  bis  discharge,  and  If  he  remained  in  possession  of  defend- 
ant's property  after  the  works  were  shut  down,  and  held  himself  In  readines*  to 
perform  such  work  as  defendant  might  direct  him  to  do,  under  an  honest  belief 
that  be  was  still  in  defendant's  employ,  and  if  he  had  in  fact  never  been  dis- 
charged, the  Jury  should  find  for  plaintiff,  a  further  charge  that  the  Jury  might 
take  into  consideration,  in  determining  whether  plaintiff  was  entitled  to  recover, 
whether  defendant  consulted  plaintiff  with  reference  to  future  development  of 
the  property,  and  called  upon  him  to  perform  any  duties  after  the  other  men 
were  discharged,  was  equivalent  to  a  charge  that  such  matters  might  be  taken 
into  consideration  in  determining  whether  there  bad  been  a  discharge,  and  was 
not  erroneous. 

Appeal— DisBURSEMKNTS  Subsequent  to  J udgxent  — Rendition  of 
Additional  Judgment  on  Affirmance. 

2.  Where  an  attachment  was  sued  out  in  aid  of  an  action,  and  subsequent  to 
Judgment  an  execution  was  issued,  and  a  sale  of  the  attached  property  was 
adjourned  from  time  to  time,  causing  the  Incurrence  of  expenses  and  disburse- 
ments in  a  stipulated  amount,  before  the  taking  of  an  appeal  by  defendant,  which 
would  have  been  collected  except  for  such  appeal  and  consequent  stay  of  execu- 
tion, plaintiff,  upon  procuring  an  affirmance  of  the  Judgment,  Is  entitled  to  an 
additional  Judgment  against  defendant  and  his  sureties  for  the  amount  of  the 
stipulated  expenses  so  incurred. 

From  Jackson :  Hiero  K.  Hanna,  Judge. 

Statement  by  Mr.  Chief  Justice  Wolverton. 

This  is  an  action  by  William  L.  Mee  against  the  Bowden 
Gold  Mining  Co.  upon  a  contract  for  services  performed. 
The  especial  allegations  of  the  complaint  respecting  the 
contract  are : 

"That  between  the  10th  day  of  July,  1903,  and  the  30th 
day  of  June,  1904,  plaintiff,  at  the  special  instance  and  re- 
quest of  the  defendant,  performed  for  the  defendant  serv- 
ices as  foreman  in  a  mine  operated  by  defendant  for  a  period 
of  llf  months  at  the  agreed  price  of  $150  per  month  and 
plaintiff's  board." 

A  trial  was  had  before  a  jury,  resulting  in  a  verdict  and 
judgment  for  plaintiff,  and  defendant  appeals. 

Affirmed. 


144  Mek  v.  Bowden  Mining  Co.  [47  Or. 

For  appellant  there  was  a  brief  over  the  name  of  Hoi- 
brook  Withington. 

For  respondent  there  was  a  brief  over  the  name  ot  A,E, 
&  C.  L.  Reames,  with  an  oral  argument  by  Mr.  Clarence  L. 
Reamea, 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

1.  But  a  single  question  is  presented,  which  is  whether 
the  court  erred  in  giving  to  the  jury  an  instruction  as  fol- 
lows: 

"If,  after  the  other  men  were  discharged  from  the  mine, 
the  plaintiff  continued  in  possession,  believing  he  was  still 
employed  by  the  defendant,  and  you  find  that  defendant 
consulted  the  plaintiff  with  reference  to  future  develop- 
ment of  the  property,  and  called  upon  him  during  this 
time  to  perform  any  duties,  then  you  would  have  a  right 
to  take  into  consideration  these  things  done  by  the  defend- 
ant in  determining  whether  the  plaintiff  is  entitled  to  re- 
cover or  not;  that  is,  you  would  have  a  right  to  consider 
that  they  had  consulted  him  while  he  was,  with  their 
knowledge,  in  possession  of  the  property,  if  you  find  these 
to  be  facts." 

There  is  no  statement  in  the  bill  of  exceptions  showing 
what  the  tendency  of  the  testimony  was  in  any  respect,  and 
the  only  matter  that  we  have  for  inspection  for  determin- 
ing the  relevancy  or  irrelevancy  of  the  instruction  com- 
plained of  is  the  remaining  instructions  given  in  the  cause. 
The  immediate  question  that  the  court  desired  to  submit 
to  the  jury,  we  gather  from  the  other  instructions  stand- 
ing in  near  relation  to  the  one  complained  of,  was  whether 
the  plaintiff  had  been  sooner  discharged  by  the  defendant 
from  its  service  than  he  claimed.  Those  other  instruc- 
tions are,  in  effect,  that  if  the  plaintiff  went  into  the  em- 
ploy of  the  defendant  at  a  stipulated  salary,  without  any 
time  being  fixed  as  to  how  long  he  should  work,  then  he 
would  have  a  right  to  expect  that  he  was  entitled  to  his 
wages  until  such  time  as  he  had  been  notified  of  his  dis- 


Aug.  1905.]       Mee  v.  Bowden  Mining  Co.  145 

charge;  and  that,  if  plaintiff  remained  in  the  possession 
of  defendant's  property  after  the  mine  was  shut  down,  and 
held  himself  in  readiness  to  perform  such  work  as  defend- 
ant might  direct  him  to  do,  under  the  honest  belief  that  he 
was  still  in  the  defendant's  employ,  and  *'you  further  find 
that  he  has  never  been  discharged,  then  you  should  find 
for  the  plaintiff.*'  No  exceptions  were  saved  to  these  in- 
structions, and  the  defendant  must  therefore  have  deemed 
that  they  state  the  law  correctly.  There  was  a  continuing 
employment  under  the  contract,  and  plaintiff  would  be 
entitled  to  his  wages  until  he  was  discharged  by  the  defend- 
ant. The  discharge  might  have  been  accomplished  by 
direct  dismissal,  or  it  might  have  been  implied  from  the 
acts  of  the  defendant  and  its  manner  of  dealing  with  the 
plaintiff.  It  does  not  seem  to  be  claimed  that  the  former 
method  of  discharge  had  been  availed  of,  but  that  the 
attendant  circumstances  and  conditions  and  the  acts  of  the 
parties  evidenced  a  discharge  notwithstanding,  and  that 
plaintiff's  employment  ceased  at  the  end  of  two  and  two- 
third  months.  Now,  it  is  apparent  that  the  instruction 
complained  of  was  designed  to  inform  the  jury  that  the 
certain  matters  there  referred  to  might  be  taken  into  con- 
sideration in  determining  whether  there  had  been  a  dis- 
charge of  the  plaintiff,  or  his  services  had  been  discontin- 
ued ;  or,  as  the  court  has  put  it,  that  they  had  a  right  to 
consider  those  things  in  determining  whether  or  not  the 
plaintiff  is  entitled  to  recover.  The  one  expression  was 
employed  as  the  equivalent  of  the  other,  and  the  jury 
probably  so  understood  the  instruction.  In  this  view  there 
was  no  error.  The  case  of  Barlow  v.  Taylor  Min,  Co,,  29 
Or.  132  (44  Pac.  492),  is  not  averse  to  this  holding. 

2.  The  parties  plaintiff  and  defendant  have  stipulated 
as  an  additional  abstract  o^  record  in  this  case  that  at  the 
commencement  of  the  action  an  attachment  was  had,  and 

47  Ob. 10 


146  CoHN  V.  Wemme.  [47  Or. 

a  keeper  placed  in  charge  of  the  attached  property ;  that 
subsequent  to  judgment  an  execution  was  issued;  that  a 
sale  of  the  attached  property  was  adjourned  from  time  to 
time;  that  the  expenses  attendant  upon  'said  execution 
and  attachment,  as  shown  by  the  return  upon  said  execu- 
tion, made  subsequent  to  appeal,  are  $284 ;  that  all  of  said 
expenses  and  disbursements  were  made  before  such  appeal 
was  taken,  and  would  have  been  collected  but  for  said 
appeal  and  the  stay  of  execution  on  account  thereof.  Based 
upon  this  record,  respondent  insists  that  we  should  render 
judgment  against  the  appellant  and  his  sureties  for  this 
amount  in  addition  to  the  judgment  below.  As  the  exact 
sum  is  stipulated,  and  as  it  is  clear  that  the  defendant  is 
liable  therefor  to  the  plaintiff,  and  was  hindered  and  pre- 
vented in  the  collection  thereof  by  the  stay  of  execution, 
we  think  he  is  entitled  to  the  relief. 

Let  the   judgment  of  the  circuit  court   therefore  be 
affirmed,  with  this  additional  relief.  Affirmed. 


Argued  16  July,  decided  15  August,  IVOb. 

GOHK  V.  WEMME. 

81  Pac.  081. 

Impeachment  of  Award  for  Misconduct  of  Arbitrators. 

1.  A  party  claiming  to  be  injured  in  an  award  through  the  misconduct  ol  the 
arbitrators  may  maintain  a  suit  in  equity  to  set  aside  the  award ;  but  in  Oregon 
the  defense  of  misconduct  is  not  available  in  a  law  action  on  the  award,  since  in 
this  Btate  the  distinction  between  law  and  equity  is  sUll  retained. 

Pleading  — Joining  Legal,  and  Equitable  Defenses. 

2.  Section  74,  B.  &  C  Comp.,  authorizing  a  defendant  to  set  forth  by  answer  as 
many  defenses  as  he  may  have,  does  not  permit  the  joinder  of  legal  and  equitable 
defenses. 

From  Multnomah:  Alfred  F.  Sears,  Jr..  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  an  action  by  S.  Morton  Cohn  against  E.  Henry 
Wemme  to  recover  the  amount  of  an  award.  The  com- 
plaint states  that  plaintiff  is  the  owner  of  certain  real 


Aug.  1905.]  CoHN  V,  Wemmk.  147 

property  in  Portland,  which  was' occupied  for  a  specified 
time  by  one  Fred  T.  Merrill  for  himself  and  as  agent  for 
another,  and  by  the  Fred  T.  Merrill  Cycle  Company;  that 
actions  were  instituted  by  the  owner  against  such  occu- 
pants to  recover  the  possession  of  the  demanded  premises, 
and  the  defendant  herein  became  surety  on  undertakings 
given  in  such  actions ;  that  on  September  12, 1904,  Cohn 
secured  possession  of  his  real  property,  and,  a  dispute 
existing  as  to  the  sum  due  him  for  rent  and  as  to  the  value 
of  certain  material  left  on  the  premises  by  Merrill,  they 
entered  into  a  written  contract  to  submit  the  controversy 
to  arbitrators  for  determination,  whereupon  the  defendant 
herein  duly  signed  the  following  stipulation: 

^'Whereas,  I,  E.  H.  Wemme,  one  of  the  sureties  named 
in  the  above  articles  of  arbitration,  am  upon  the  bonds 
holding  me  as  one  of  the  sureties  for  the  payment  of  any 
rents  adjudged  to  be  due  S.  Morton  Oohn  from  said  first 
party  named  therein  ;  and 

Whereas  I  will  under  the  agreement  herein  be  absolved 
from  such  liability  upon  such  bonds ; 

I,  in  consideration  thereof,  hereby  agree  and  pledge  my- 
self to  pay  said  S.  Morton  Cohn,  within  three  days  of  the 
date  of  the  award,  and  in  cash,  any  amount  that  may  be 
awarded  to  said  S.  Morton  Cohn  under  this  agreement  of 
arbitration." 

The  complaint  further  states  that  arbitrators  were  duly 
appointed,  who  found  there  was  due  plaintiff  on  account 
of  such  rent,  and  awarded  him,  $1,700,  no  part  of  which 
sum  has  been  paid.  The  answer  denies  the  material  aver- 
ments of  the  complaint,  and  for  a  separate  defense  alleges 
that  plaintiff,  his  agents  and  attorneys,  falsely  represented 
to  this  defendant  that  he  and  another  person  were  liable 
upon  undertakings  for  the  payment  of  the  rent  due, 
whereas  neither  of  them  were  surety  therefor;  and  that, 
believing  such  false  statements,  and  relying  thereon,  the 
defendant  herein  signed  the  agreement  set  out  in  the  com- 


148  CoHN  V,  Wemme.  [47  Or. 

plaint.  It  is  further  alleged  that  the  arbitrators  so  chosen 
refused  to  permit  this  defendant,  or  Merrill,  or  their  at- 
torney, to  be  present  during  the  hearing,  thus  denying 
them  an  opportunity  to  object  to  the  presentation  of  im- 
proper evidence,  much  of  which,  so  this  defendant  is 
informed  and  believes,  was  introduced,  thereby  influen- 
cing the  arbitrators  to  his  damage ;  that  this  defendant  had 
competent  witnesses  and  material  evidence  that  he  desired 
to  produce  and  submit,  but  the  arbitrators  would  not  per- 
mit him  to  do  so,  and  made  the  alleged  award  prior  to  the 
time  allowed  for  the  introduction  of  evidence.  A  reply 
was  filed,  denying  these  allegations,  and  a  trial  was  had 
at  which  the  parties  introduced  their  evidence  and  rested, 
whereupon  the  court,  at  plaintiff's  request,  instructed  the 
jury  to  find  for  him  on  the  ground  that  the  new  matter  in 
the  answer  did  not  constitute  a  defense  to  the  action,  and 
a  verdict  having  been  returned  for  plaintiff  in  the  sum  of 
$1,700,  upon  which  judgment  was  rendered,  the  defendant 
appeals.  Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  George 
W,  P,  Joseph,  S.  C,  Spencer  and  A.  C.  Emmona,  with  an  oral 
argument  by  Mr,  Schuyler  Colfax  Spencer. 

For  respondent  there  was  a  brief  over  the  name  of  Bern- 
stein &  Cohen,  with  an  oral  argument  by  Mr,  D,  Solis  Cohen, 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

1.  It  is  contended  by  defendant's  counsel  that  the  denial 
of  the  arbitrators  to  receive  material  testimony  offered  by 
the  parties  renders  their  determination  liable  to  be  vacated; 
that  such  refusal  affords  a  valid  defense  to  an  action  on  the 
award,  and,  this  being  so,  the  court  erred  in  directing  a 
verdict  for  plaintiff.  A  text-writer,  in  discussing  the  con- 
sequence that  may  result  from  a  denial  of  arbitrators  to 
receive  competent  evidence,  says :  "There  are  cases  which 
would  go  far  to  sustain  the  broad,  general  rule  that,  if  arbi- 


Aug.  1905.]  CoHN  V.  WexMme.  149 

trators  refuse  to  hear  testimony  which  is  offered,  and  is  in 
fact  pertinent  and  material  to  the  controversy,  going  to 
prove  a  point  which  needs  to  be  proved,  and  properly  ad- 
missible, the  error  may  be  cause  for  vacating  the  award  or 
report":  Morse,  Arb.  &  Award,  143.  To  the  s.ame  effect,  see 
3  Cyc.  748;  2  Am.  &  Eng.  Euc.  Law  (2  ed.),  655;  Rednerv. 
New  York  Fire  Ins,  Co.,  92  Minn.  306  (99  N. W.  886);  Hal- 
siead  v.  Seaman,  82  N.  Y.  27  (37  Am.  Rep.  536);  Van  Winkle 
v.  Continental  Fire  Ins.  Co.,  55  W.  Va.  286  (47  S.  E.  82); 
McDonald  v.  Lewis,  18  Wash.  300  (51  Pac.  387);  Canfield  v. 
Watertown  Ins.  Co,,  55  Wis.  419  (13  N.  W.  252).  A  party 
considering  himself  injured  by  the  misconduct  of  arbitra- 
tors may  invoke  the  maxim  that  equity  will  not  suffer  a 
wrong  without  a  remedy,  and  in  a  suit  instituted  for  that 
purpose  secure  a  decree  setting  aside  the  award :  Morse, 
Arb.  &  Award,  543. 

2.  It  is  argued  by  defendant's  counsel  that  the  statute 
authorizing  a  defendant  to  set  forth  by  answer  as  many 
defenses  as  he  may  have  (B.  &  C.  Comp.  §  74)  permitted 
them  to  plead  the  facts  relied  upon  as  a  defense  in  an 
action  at  law  based  on  the  award,  and  in  support  of  this 
principle  cite  several  cases  which  uphold  that  doctrine. 
Thus,  in  Knowlton  v.  Mickles,  29  Barb.  465,  it  was  ruled 
in  1859  that  in  actions  on  awards,  as  in  other  cases  under 
the  Code  of  New  York,  a  defendant  may  put  in  an  answer 
alleging  facts  sufficient  to  vacate  the  award,  and  pray  an 
affirmative  judgment  to  that  effect,  and  that  he  was  no 
longer  driven  to  a  cross-action  for  that  purpose.  So,  too, 
in  Oarvey  v.  Carey,  35  How.  Prac.  282,  it  was  held  in  1868 
that  in  an  action  on  an  award  an  answer  which  sought  to 
avoid  the  determination  on  the  ground  of  misconduct  on 
the  part  of  the  arbitrators  and  mistake  in  ascertaining  the 
amount  due,  afforded  a  defense  that  was  invulnerable  to 
demurrer.  At  the  time  these  decisions  were  rendered,  the 
Revised  Statutes  of  New  York  (vol.  2,  4  ed.),  pt.  3,  c.  3, 


150  Kaston  V,  Storey.  [47  Or. 

tit.  6,  §  150,  contained  the  following  clause:  **The  defend- 
ant may  set  forth  by  answer  as  many  defenses  and  counter- 
claims as  he  may  have,  whether  they  be  such  as  have  been 
heretofore  denominated  legal  or  equitable,  or  both."  In 
Wisconsin,  under  a  similar  statute,  the  same  rule  obtains : 
Person  v.  Drew,  19  Wis.  241;  Canfield  v.  Watertown  Ins,  Co., 
55  Wis.  419  (13  N.  W.  252).  We  have  no  statute  author- 
izing an  equitable  defense  to  be  interposed  to  an  action 
at  law,  and  though  in  this  State  a  court  of  equity  and  a 
court  of  law  are  presided  over  by  the  same  judge  they  are 
essentially  different  forums:  Beacannon  v.  Liebe,  11  Or. 
443  (5  Pac.  273);  Ming  Yue  v.  Coos  Bay  Nav,  Co.,  24  Or. 
392  (33  Pac.  641);  State  ex  rel.  v.  Lord,  28  Or.  498  (43  Pac. 
471,  31  L.  R.  A.  473);  Willis  v.  Crawford,  38  Or.  522  (63 
Pac.  985, 64  Pac.  866, 53  L.  R.  A.  904);  LeClare  v.  Thibault, 
41  Or.  601  (69  Pac.  552).  In  Fire  Association  v.  AllesiTia, 
45  Or.  154  (77  Pac.  123),  it  was  held  that,  where  apprais- 
ers were  appointed  to  adjust  a  fire  loss,  the  award  could 
not  be  impeached  or  set  aside  for  fraud  in  a  court  of  law. 
As  the  decision  in  that  case  is  controlling  in  this,  it  fol- 
lows that  no  error  was  committed  as  alleged,  and  hence 
the  judgment  is  affirmed.  Affirmed. 


Argued  1  February,  decided  SO  April,  1905. 

KASTOK  V.  STOREY. 

80  Pac.  217. 

Nature  of  Mortgage  in  Oregon. 

1.  In  Oregon  a  mortgage  of  real  estate  creates  only  a  Hen  thereon,  the  title 
remaining  In  the  mortgagor,  or  his  successor  In  Interest,  until  the  Issuance  of  a 
sherlflTs  deed  in  due  course  of  law. 

Lien  of  Judgment  on  Mortgaged  Land. 

2.  In  view  of  Section  206,  B.  A  C.  Comp.,  providing  that  from  the  date  of  dock 
fctlnga  Judgment  It  shall  be  a  Hen  upon  all  the  real  property  of  the  defendant 
within  the  county,  or  which  he  may  afterwards  acquire,  a  Judgment  that  Is  dock- 
eted against  a  mortgagor  after  a  siile  of  his  real  estate  under  foreclosure  decree, 
but  before  expiration  of  the  period  of  redemption,  becomes  a  lien  on  the  property, 
subject  to  be  defeated  only  by  the  execution  and  delivery  of  a  sherilTs  deed. 


April,  1905.]  Kaston  v.  Storey.  151 

Effect  of  Redemption  by  Grantee  of  Mobtoagor  After  Sale, 

3.  Under  Section  2S0,  B.  A  C.  Comp.,  providing  that  a  Judgment  debtor  or  bis 
successor  In  Interest  may  at  t^ny  time  prior  to  confirmation  of  the  sale,  and 
within  a  year  thereafter,  redeem  the  property  by  paying  the  purchase  money, 
with  Interest,  taxes,  etc.;  and  section  427,  providing  that  a  decree  of  foreclosure 
shall  bar  the  equity  of  redemption,  but  that  property  sold  on  execution  Issued  on 
a  decree  may  be  redeemed  In  like  manner  as  property  sold  on  an  execution  on  a 
Judgment,  a  redemption  ttom  a  sale  on  a  foreclosure  decree  by  a  grantee  of  the 
mortgagor  who  acquires  title  after  the  sale  terminates  all  proceedings  under  the 
order  of  sale  and  leaves  the  property  as  though  no  steps  had  been  taken  to  en- 
force the  decree. 

Lis  Pendens. 

4.  Under  the  doctrine  of  Us  pendens,  one  who  acquires  title  to  or  a  Hen  upon 
mortgaged  real  property  after  the  commencement  of  a  foreclosure  suit.  Is  bound 
by  the  decree,  though  not  a  necessary  party  thereto,  and  a  sheriff's  deed  Issued 
under  a  sale  pursuant  to  such  decree  will  cut  off  the  holder  of  such  title  or  Hen ; 
but  If  the  proceedlnns  under  the  decree  are  terminated  by  a  redemption,  the  sub- 
sequently acquired  title  or  Hen  becomes  enforclble. 

For  Instance:  Where,  pending  foreclosure  of  a  mortgage,  a  creditor  of  the 
mortgagor  recovers  and  dockets  a  Judgment  against  him,  and  thereafter  a  subse- 
quent grantee  of  the  mortgagor  redeems  the  property  ftom  the  sale  under  the 
foreclosure  decree,  the  Judgment  creditor  thereupon  becomes  entitled  to  enforce 
such  Judgment  against  the  land,  the  foreclosure  enforcement,  which  was  para- 
mount to  the  Judgment,  being  removed  by  the  redemption. 

CONTBOI^LINQ  EFFECT  OF  ISSUES  IN  THE  FLEADINOS.* 

6.  Cases  must  be  decided  on  the  Issues  made  by  the  parties  through  their  plead- 
ings, and  rights  not  thus  asserted  cannot  be  considered. 

For  example.  In  a  suit  to  restrain  the  enforcement  of  an  execution  on  a  Judg- 
ment by  a  redemption  from  a  previous  sale  under  a  foreslosure  decree,  the  court 
cannot  consider  plalntlffb'  right  to  be  subrogated  to  the  claim  of  the  foreclosure 
creditor  from  whom  he  redeemed,  as  the  suit  was  not  Instituted  for  that  purpose. 

From  Multnomah :  John  B.  Cleland,  Judge. 

Statement  by  Mr.  Justice  Bean. 

This  is  a  suit  by  J.  E.  Kaston  and  others  against  W.  A. 
Story,  sheriff,  and  0.  F.  Paxton,  to  enjoin  the  sale  of  real 
property  under  an  execution  issued  on  a  judgment  at  law. 
The  facts  are  these:  On  July  7,  1902,  Jennie  Y.  Wade 
obtained  a  decree  against  Lundin  and  wife,  foreclosing 
two  mortgages  given  by  them  on  the  real  property  in  ques- 
tion. An  execution  was  issued  on  the  decree,  and  the 
property  sold  on  August  20,  1902,  for  more  than  sufficient 
to  satisfy  the  decree,  costs  and  expenses.  After  the  sale, 
and  before  the  confirmation  thereof,  Leonard  and  Wolff 
commenced  an  action  at  law  against  Lundin  and  one  Lang- 


♦NoTE.— See  Boothe  v.  Farmers*  Bank,  pott.— Reporter. 


152  Kaston  v.  Storey.  [47  Or. 

ford  to  recover  money,  and  such  proceedings  were  there- 
after had  in  the  action  that  on  September  8, 1902,  a  judg- 
ment was  recovered  against  Lundin  and  Langford,  which 
was  duly  entered  in  the  judgment  lien  docket  on  the  same 
day.  A  few  days  later  the  sale  under  the  foreclosure  de- 
cree was  confirmed.  Before  the  time  for  redemption  had 
expired,  however,  Lundin  and  wife  conveyed  the  mort- 
gaged property  by  deed  to  the  plaintiff  Kaston,  who  on  the 
22d  of  August,  1902,  redeemed  from  the  sale  under  the 
Wade  decree.  The  judgment  at  law  in  favor  of  Leonard 
and  Wolff  and  against  Lundin  had  in  the  mean  time  been 
assigned  to  the  defendant  Paxton,  who,  after  the  redemp- 
tion by  plaintiff,  caused  an  execution  lo  be  issued  thereon, 
and  the  real  property  in  question  levied  upon  and  adver- 
tised for  sale  to  satisfy  the  same.  This  suit  was  commenced 
by  Kaston  to  enjoin  such  sale,  and  from  the  decree  in  his 
favor  the  defendants  appeal.  Reversed. 

For  appellants  there  was  a  brief  and  an  oral  argument 
by  Mr.  Ossian  Franklin  Paxton. 

For  respondents  there  was  a  brief  with  oral  arguments 
by  Mr,  Granville  Gay  Ames,  Mr.  Claude  Strahan^  Mr.  Wal- 
demar  Seton,  Mr.  William  York  Masters,  Mr.  William  Am- 
brose Munly,  and  Mr.  Andrew  Taylor  Lewis. 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

1.  A  mortgage  of  real  property  in  this  State  does  not 
pass  the  title,  but  merely  creates  a  lien  :  Anderson  v.  Bax- 
ter,  4  Or.  105;  Sellwood  v.  Gray,  11  Or.  534  (5  Pac.  196). 
The  legal  title  remains  in  the  mortgagor  or  his  successor 
in  interest  until  a  sale  under  a  foreclosure  decree  has 
ripened  into  a  title  by  the  execution  and  delivery  to  the 
purchaser  of  a  sheriff's  deed  in  due  course  of  law  :  Dray  v. 
Dray,  21  Or.  59,  66  (27  Pac.  223). 

2.  Therefore,  at  the  time  the  judgment  of  Leonard  and 
Wolff  against  Lundin  was  recovered  and  docketed,  the 


April,  1905.]  Kaston  v.  Storey.  153 

legal  title  to  the  property  was  in  Lundin,  subject  to  the 
iuchoate  right  of  the  purchaser  at  the  foreclosure  sale,  and 
the  judgment  became  a  lien  on  such  property,  subject  to 
be  defeated  only  by  the  consummation  of  such  sale  by  the 
execution  and  delivery  of  a  sheriff's  deed  :  B.  &  C.  Comp. 
§§  205,  227;  2  Freeman,  Executions  (3  ed.),  §  182;  2  Free- 
man, Judgments  (4  ed.),  §  349;  Curtis  v.  Millard,  14  Iowa, 
128  (81  Am.  Dec.  460);  Barnes  v.  Cavanagh,  53  Iowa,  27 
(3  N.  W.  801). 

3.  The  redemption  by  the  plaintiff  as  the  successor  in 
interest  of  the  judgment  debtor,  however,  put  an  end  to 
any  further  proceedings  to  enforce  the  decree,  defeated 
the  inchoate  right  or  title  of  the  purchaser,  and  restored 
the  property  to  the  same  condition  as  if  no  sale  had  been 
attempted :  B.  &  C.  Comp.  §§  250,  427;  Cartwright  v.  Sav- 
age, 5  Or.  397;  Setilemire  v.  Newsorne,  10  Or.  446;  Flanders 
v.  Aumack,  32  Or.  19  (51  Pac.  447,  67  Am.  St.  Rep.  504). 
The  redemption  obliterated  every  effect  and  consequence 
of  the  foreclosure  sale,  and  the  parties  to  this  suit  now^ 
stand  in  precisely  the  same  position,  so  far  as  the  right  of 
the  defendants  to  proceed  on  the  judgment  at  law  is  con- 
cerned, as  if  there  had  been  no  proceedings  to  enforce  the 
decree,  and  Lundin  had,  subsequent  to  the  recovery  and 
docketing  of  the  judgment  at  law,  conveyed  the  property 
to  the  plaintiff.  In  such  a  case  the  property  would  un- 
questionably be  subject  to  the  lien  of  the  judgment  and 
liable  to  a  sale  on  the  execution  thereunder. 

4.  The  plaintiff  contends,  however,  that,  as  the  judg- 
ment of  Leonard  and  Wolff  was  obtained  pendente  lite 
and  after  the  sale  under  the  decree  of  foreclosure,  it  is 
effectually  barred  by  such  decree.  Reliance  is  had  in  sup- 
port of  this  position  on  Williams  v.  Wilson,  42  Or.  299  (70 
Pac.  1031,  95  Am.  St.  Rep.  745).  That  case  is  essentially 
different  from  this.  It  was  a  suit  to  foreclose  a  mortgage. 
A  judgment  against  the  mortgagor  had  been  recovered  and 


154  Kaston  v.  Storey.  [47  Or. 

docketed  subsequent  to  the  execution  of  the  mortgage  and 
prior  to  the  commencement  of  the  foreclosure  suit.  The 
judgment  lien  creditor  was  made  a  party  to  the  suit.  He 
appeared  and  set  up  his  judgment  by  answer  or  cross- 
complaint,  and  secured  a  decree  that  the  proceeds  of  the 
sale  of  the  mortgaged  property,  after  satisfying  prior  liens, 
should  be  applied  in  payment  of  his  judgment.  The  court 
held  that  the  rights  of  such  a  judgment  lien  creditor  as 
against  the  particular  property  were  merged  in  and  must 
be  worked  out  through  the  decree,  and  consequently  he 
could  not  have  the  premises  resold  under  an  execution 
issued  on  his  judgment  at  law  for  a  deficiency  due  him 
thereon,  when  the  property  had  been  redeemed  from  the 
foreclosure  sale  by  a  grantee  of  the  mortgagor,  who  took 
subsequent  to  the  rendition  of  the  decree.  In  this  case, 
Leonard  and  Wolff  were  not  parties  to  the  foreclosure  suit, 
and  could  not  have  been  made  so.  Their  action  at  law 
was  commenced,  and  judgment  recovered,  after  the  decree. 
They  did  not  and  could  not  have  appeared  in  the  fore- 
closure suit  and  set  up  their  claim  by  answer  or  cross-bill, 
and  their  lien  was  not  merged  in  the  decree,  and  could  not 
be  worked  out  through  it.  Their  rights  did  not  in  any  way 
depend  upon  the  decree  of  foreclosure,  but  wholly  upon 
their  judgment  at  law,  obtained  subsequent  to  the  decree. 
Now,  under  the  doctrine  of  lis  pendens,  one  who  acquires 
title  to,  or  a  lien  upon,  or  an  interest  in,  mortgaged  real 
property  after  the  commencement  of  a  foreclosure  suit,  is 
not  a  necessary  party  thereto,  but  is  bound  by  the  decree: 
21  Am.  &  Eng.  Enc.  Law  (2  ed.),  045;  Houston  v.  Tivtmer- 
man,  17  Or.  409  (21  Pac.  1037,  4  L.  R.  A.  716, 11  Am.  St, 
Rep.  848);  Jennings  v.  Kiernan,  35  Or.  349  (55  Pac.  443, 
56  Pac.  72);  People's  Bank  v.  Hamilton  Mfg,  Co.,  10  Paige, 
481;  Whitney  wHiggins,  10  Oal.  547  (70  Am.  Dec.  748). 
And  his  interest  is  effectually  cut  off  and  barred  by  such 
decree,  if  a  sale  takes  place  thereunder,  and  such  sale 


April,  1905.]  Kaston  v.  Storey.  155 

ripens  into  a  title  by  the  execution  and  delivery  of  a  sher- 
iff's deed:  Fuller  v.Scribner,  16  Hun,  130.  When,  how- 
ever, an  inchoate  sale  under  the  decree  is  arrested  and  the 
effect  thereof  terminated  by  the  judgment  debtor  or  his 
successor  in  interest  redeeming,  the  judgment  lien  creditor 
is  not  deprived  of  his  right  to  proceed  on  his  judgment  as 
against  the  debtor  or  his  grantee:  Curtis  v.  Millard,  14 
Iowa,  128  (81  Am.  Dec.  460).  The  observation  of  Mr. 
Jones,  quoted  in  Williams  v.  Wilson,  42  Or.  299  (95  Am. 
St.  Rep.  745,  70  Pac.  1031),  that  a  creditor  having  judg- 
ment rendered  before  the  sale  but  subsequent  to  the  decree 
is  as  effectually  barred  by  the  sale  as  if  he  had  been  made 
a  party  to  the  proceedings  (2  Jones,  Mortgages,  6  ed., 
§  1437),  manifestly  has  reference  to  a  completed  and  not 
an  inchoate  sale.  There  is  no  sale,  in  the  legal  sense, 
under  a  judgment  or  decree  until  the  title  passes.  Until 
that  time  the  purchaser  has  a  mere  inchoate  and  defeas- 
ible right  to  a  conveyance  of  the  legal  title.  When  the 
judgment  debtor  or  his  successor  in  interest  redeems,  the 
process  of  transfer  of  title  to  the  purchaser  is  arrested,  his 
equitable  interest  terminated,  and  is  as  if  it  had  never  ex- 
isted :  Settlemire  v.  Newsome,  10  Or.  446.  We  are  of  the 
opinion,  therefore,  that  the  defendant  Paxton  is  not  barred 
from  proceeding  under  his  judgment  at  law  by  the  decree 
in  the  foreclosure  suit  or  the  subsequent  proceedings  had 
thereunder. 

5.  It  is  argued  that  in  any  event  the  plaintiff  is  entitled 
to  be  subrogated  as  against  the  defendant  Paxton  to  the 
right  of  the  plaintiff  in  the  foreclosure  suit,  but  that  ques- 
tion is  not  properly  here.  This  is  not  a  suit  for  subroga- 
tion, but  merely  to  enjoin  a  sale  under  the  judgment  at  law. 
The  only  question  for  decision  is  whether  the  defendants 
had  aright,  under  the  facts  as  they  appear  in  the  complaint, 
to  proceed  to  a  sale  under  the  execution  on  the  judgment 


156  WoLFER  V,  Hurst.  [47  Or. 

recovered  by  Leonard  and  Wolff  against  Lundin,  and  not 
what  interest  the  purchaser  will  acquire  by  such  sale. 

The  decree  of  the  court  below  is  reversed,  and  the  com- 
plaint dismissed.  Reversed. 

Arigaed  20  July,  decided  28  August,  rehearing  denied  4  December,  1906. 

WOLFEB.  V.  HUBST. 

80  Pac.  410, 82  Pac.  20. 

Forcible  Detainer— Stay  Bonu  on  Appeal —  Meaning  of  the  Term 
"  Final  Judgment." 

1.  The  phrase  "  final  Judgment,"  used  In  Hectlon  5764,  B.  <t  C.  Ck>mp.,  provid- 
ing for  an  undertaking  on  appeal  In  actions  of  forcible  detainer  that  shall  secure 
twice  the  rental  value  of  the  property  "  until  final  Judgment"  In  the  case,  means 
the  last  Judgment  that  may  be  entered  in  any  court  to  which  the  appeal  may  be 
finally  prosecuted;  therefore,  in  such  a  case  appealed  from  a  Justice's  court,  no 
new  stay  bond  is  required  on  a  further  appeal  from  the  circuit  to  the  supreme 
court. 

Forcible  Detainer —  Appeal  From  Justice's  Court. 

2.  Section  5751,  B.  &  C.  Com  p.,  prescribing  the  undertakings  to  be  given  when 
Judgments  in  forcible  entry  or  detainer  cases  are  given,  impliedly  authorizes  ap- 
peals  from  Judgments  by  Justices  of  the  peace  in  such  cases. 

Forcible  Detainer- Necessity  of  Hervino  Notice  to  Quit. 

8.  The  notice  referred  to  in  the  second  subdivision  of  Section  6755,  B.  A  C. 
Oomp.,  to  be  given  by  a  landlord  to  a  tenant,  to  quit  the  rented  premises,  is  re- 
quired to  be  given  before  the  tenancy  can  be  legally  terminated,  and  therefore  the 
giving  and  receiving  thereof  may  be  waived  by  the  tenant.  The  giving  of  the 
notice  is  not  part  of  the  procedure  by  the  landlord  to  recover  possession. 

From  Marion  :  George  H.  Burnett,  Judge. 

Action  by  Geo.  J.  Wolfer  against  W.  S.  Hurst  and  H.  A. 
Hinkle  to  recover  possession  of  real  property.  A  motion 
to  dismiss  the  appeal  was  overruled  pursuant  to  an  opinion 
by  Mr.  Justice  Moore,  and  the  judgment  appealed  from 
was  afterward  affirmed,  the  opinion  being  written  by  Mr. 
Chief  Justice  Wolverton.  The  facts  appear  in  the  opin- 
ions. Motion  Overruled  :  Affirmed. 


Decided  10  April,  1905. 

On  Motion  to  Dismiss  Appeal. 

Mr,  Benjamin  Franklin  Bonham  and  Mr,  Carey  Fuller 
Martin  for  the  motion. 

Mr.  Anderson  M,  Gannon,  contra. 


April,  1905.]  Wolfkr  v.  Hurst.  157 

Mr.  Justice  Moork delivered  the  opinion  of  the  court. 

This  is  a  motion  to  dismiss  an  appeal.  An  action  of 
forcible  entry  and  detainer  was  commenced  in  a  justice's 
court  of  Marion  County,  to  recover  the  possession  of  about 
80  acres  of  land,  and,  the  cause  being  at  issue,  was  tried, 
resulting  in  a  judgment  for  plaintiff  as  demanded  in  the 
complaint;  and  defendants  appealed  to  the  circuit  court 
for  that  county,  giving  an  undertaking  therefor,  and  also 
an  undertaking  for  the  payment  to  plaintiff  of  twice  the 
rental  value  of  the  premises  from  the  rendition  of  the  judg- 
ment until  final  determination  of  the  action,  if  such  judg- 
ment should  be  affirmed  on  appeal.  The  appeal  was  tried  in 
the  court  to  which  the  cause  was  taken,  and  a  judgment  for 
the  restitution  of  the  premises  was  rendered  against  the  de- 
fendants, who  on  January  10, 1905,  served  and  filed  a  notice 
of  appeal,  and  gave  and  filed  an  undertaking  therefor,  and 
18  days  thereafter,  without  notice  to  plaintiff,  secured  an 
order  of  that  court,  but  of  a  different  department,  fixing 
the  amount  of  a  stay  bond,  which  they  also  gave,  con- 
ditioned that  they  would  not  commit  or  suffer  any  waste, 
and  if  the  judgment,orany  part  thereof,  should  be  affirmed, 
they  would  pay  the  value  of  the  use  of  the  premises  from 
the  time  of  taking  the  appeal  until  the  redelivery  of  the 
possession  of  the  land,  not  exceeding  the  sum  of  $250. 
The  bill  of  exceptions  having  been  settled ,  certified  and  sent 
up,  the  motion  referred  to  was  interposed  on  the  grounds 
that  this  court  did  not  have  jurisdiction  of  the  cause,  for 
that  no  undertaking  for  the  payment  of  the  rent  of  the 
premises  was  given  within  the  time  prescribed,  and  that  no 
right  of  appeal  exists  from  judgments  rendered  in  actions 
of  this  kind. 

1.  Considering  the  objections  to  the  jurisdiction  in  the 
order  indicated,  the  statute  relating  to  appeals  in  actions 
of  forcible  entry  and  detainer  is  as  follows: 


158  WoLFKR  V.  Hurst.  [47  Or. 

"If  judgment  be  rendered  against  the  defendant  for  the 
restitution  of  the  real  property  described  in  the  complaint, 
or  any  part  thereof,  no  appeal  shall  be  taken  by  the  de- 
fendant from  such  judgment  until  he  shall,  in  addition  to 
the  undertaking  now  required  by  law  upon  appeal,  give  an 
undertaking  to  the  adverse  party,  with  two  sureties,  who 
shall  justify  in  like  manner  as  bail  upon  arrest,  for  the 
payment  to  the  plaintiff  of  twice  the  rental  value  of  the  real 
property  of  which  restitution  shall  be  adjudged  from  the 
rendition  of  such  judgment  until  final  judgment  in  said 
action,  if  such  judgment  shall  be  affirmed  upon  appeal": 
B.  &  C.  Comp.  §  5754. 

An  examination  of  the  section  of  the  statute  quoted  will 
show  that  the  undertaking  required  to  be  given  for  the 
payment  of  the  rent  stipulates  that  the  term  for  which  the 
stay  bond  shall  operate  as  indemnity  for  the  use  of  the  de- 
manded premises  is  from  the  rendition  of  the  judgment  in 
the  justice's  court  until  final  judgment  is  given  in  the  ac- 
tion, if  such  judgment  is  aflSrmed.  The  term  "final  judg- 
ment" is  generally  used  as  a  synonym  for  an  appealable 
order,  that  is,  one  which  not  only  affects  a  substantial 
right,  but  one  which,  in  effect,  determines  the  action  in  the 
court  pronouncing  the  judgment:  B.  &  G.  Comp.  §  547; 
State  v.  Brown,5  Or.  119;  Basche  v.  Pringle,  21  Or.  24  (26 
Pac.  863).  The  term  "final  judgment,"  as  used  in  the  stat- 
ute under  consideration,  cannot  apply  to  the  determina- 
tion of  the  cause  in  the  justice's  court,  for  the  language 
assumes  that  such  judgment  has  been  given  therein,  and 
provides  that,  on  an  affirmance  thereof,  the  payment  to 
the  plaintiff  of  twice  the  rental  value  of  the  land  of  which 
restitution  has  been  awarded  shall  be  guaranteed  by  the 
terms  of  the  supplementary  undertaking.  A  fair  inter- 
pretation of  the  phrase  "until  after  final  judgment  in  said 
action"  means  that  the  undertaking  stipulating  for  the 
payment  of  the  rent  shall  afford  compensation  to  the 
plaintiff  for  the  use  of  the  premises  from  the  time  judg- 


April,  1905.]  Wolfer  v.  Hurst.  159 

ment  is  rendered  in  the  justice's  court  for  the  restitu- 
tion of  the  land  until  the  cause  is  finally  determined  on 
appeal.  Such  a  construction  of  the  statute  would  make 
the  undertaking  given  for  the  payment  of  twice  the  rental 
value  of  the  land  effectual  for  all  purposes  until  the  judg- 
ment rendered  in  the  justice's  court  becomes  final  either 
by  an  affirmance  or  a  reversal  thereof  in  the  circuit  or 
supreme  court. 

The  object  of  the  statute  requiring  the  giving  of  a  stay 
bond  was  evidently  not  designed  to  impose  needless  bur- 
dens upon  the  defendant  when  he  appeals  from  a  judgment 
rendered  against  him  in  a  justice's  court  for  the  restitution 
of  land  of  which  he  is  in  possession,  but  to  secure  to  the 
plaintiff  in  such  action  the  payment  of  the  rent  until  the 
right  to  the  possession  becomes  final,  and,  as  the  statute 
in  effect  so  provides,  no  necessity  existed  for  the  giving  of 
an  undertaking  to  stay  the  enforcement  of  the  judgment 
rendered  in  the  circuit  court,  the  undertaking  given  there- 
for in  the  justice's  court  as  a  condition  precedent  to  the 
right  of  appeal  being  sufficient  for  that  purpose. 

2.  The  right  to  appeal  from  a  judgment  rendered  in  a 
justice's  court  in  an  action  of  forcible  entry  and  detainer 
is  not  free  from  doubt.  The  section  of  the  statute  herein- 
before quoted  is  the  only  provision  directly  relating  thereto. 
The  Legislative  Assembly  of  the  Territory  of  Oregon  passed 
an  act  January  12,  1854,  creating  courts  of  justices  of  the 
peace,  conferring  on  that  tribunal  jurisdiction  of  such  ac- 
tions, and  granting  appeals  from  judgments  rendered 
therein  :  Laws  1855,  p.  286  et  seq.  An  act  was  passed  Oc- 
tober 11,  1862,  conferring  upon  county  courts  exclusive 
jurisdiction  of  actions  of  forcible  entry  and  detainer,  and 
allowing  appeals  from  judgments  given  in  such  actions: 
Deady's  Gen.  Laws  1854-64,  §§  868-875.  Justices'  courts 
were  invested  with  jurisdiction  of  such  actions  by  an  act 
passed  October  24,  1866  (B.  &  C.  Comp.  §  5745  etseq.). 


160  WoLFER  V.  Hurst.  [47  Or. 

and  the  only  right  to  review  a  judgment  rendered  therein 
is  to  be  implied  from  the  section  of  the  statute  which  pro- 
vides that  no  appeal  shall  be  taken  by  the  defendant,  until 
he  shall  have  given  an  undertaking  to  pay  to  the  plaintiff 
twice  the  rental  value  of  the  premises  of  which  restitution 
has  been  awarded,  in  addition  to  the  ordinary  undertaking 
for  an  appeal :  B.  &  C.  Com  p.  §  5754.  In  Thompson  v.  Wolfy 
6  Or.  308,  the  court,  in  construing  the  act  of  October  24, 
1866,  and  referring  to  a  provision  thereof  now  incorporated 
in  B.  &  C.  Com  p.  as  section  5754,  though  the  question  was 
not  involved,  says:  "By  section  10,  an  appeal  is  allowed 
and  must  be  taken  to  the  circuit  court."  The  dictum  thus 
announced  has  been  observed  in  the  trial  of  appeals  in  this 
court  in  actions  of  forcible  entry  and  detainer  commenced 
in  justices*  courts  in  the  following  cases:  Taylor  v.  Scott, 
10  Or.  483 ;  Harrington  v.  Watson,  11  Or.  143  (3  Pac.  173 
50  Am.  Rep.  465);  Aiken  v.  Aiken,  12  Or.  203  (6  Pac.  682); 
Danvers  v.  Durkin,  14  Or.  37  (12  Pac.  60);  BeljOs  v.  Flint, 
15  Or.  158  (14  Pac.  295);  Rosenblat  v.  Perkins,  18  Or.  156 
(22  Pac.  598,  6  L.  R.  A.  257);  Hislop  v.  Moldenhauer,  21  Or. 
208,  (27  Pac.  1052)  2d  Appeal,  23  Or.  119;  Smith  v.  Reeder, 
21  Or.  541  (28  Pac.  890, 15  L.  R.  A.  172);  Forsythe  v.  Pogue, 
25  Or.  481  (36  Pac.  571);  Twiss  v.  Boehmer,  39  Or.  359 
(65  Pac.  18).  The  right  to  appeal  from  such  judgments 
has  never  been  questioned  until  quite  recently :  Heiney  v. 
Heiney,  43  Or.  577  (73  Pac.  1038);  McAnish  v.  Ghi'ant,  44 
Or.  57  (74  Pac.  390);  Dechenbach  v.  Rima,  45  Or.  500  (77 
Pac.  391,  78  Pac.  666).  The  judgment  of  an  inferior  court 
ought  not  to  be  reviewed  unless  the  right  to  do  so  is  clearly 
granted  by  statute;  but,  where  appeals  have  been  unques- 
tionably tried  for  such  a  length  of  time  as  to  establish  a 
method  of  procedure,  the  rule  promulgated  should  not  be 
changed  without  just  cause,  resulting  from  manifest  injus- 
tice to  the  parties  to  actions :  Butler  v.  Smith,  20  Or.  126 
(25  Pac.  381);  Lewis  w.  Reeves,  26  Or.  445(38  Pac.  622). 


Aug.  1905.]  WoLFKR  V.  Hurst.  161 

It  is  difficult  to  discover  how  any  unfairness  can  arise 
from  reviewing  a  judgment  given  in  a  justice's  court  in 
an  action  of  forcible  entry  and  detainer,  except  the  pos- 
sibility of  a  reversal,  which  would  reasonably  show  that 
such  judgment  was  erroneous,  and  therefore  unjust.  The 
rule  to  be  extracted  from  the  cases  decided  by  this  court, 
to  which  attention  has  been  called,  is  that  an  appeal  from 
a  judgment  given  in  a  justice's  court  in  an  action  of  this 
kind  may  be  instituted  and  prosecuted  to  final  determina- 
tion by  either  party ;  but,  if  taken  by  the  defendant,  he 
must,  in  addition  to  the  undertaking  therefor,  also  give  an 
undertaking  for  the  payment  to  the  plaintiff  of  twice  the 
rental  value  of  the  premises  of  which  restitution  has  been 
awarded. 

As  the  right  to  an  appeal  in  such  cases  is  fairly  to  be 
inferred  from  the  statute,  and  as  the  cause  of  justice  would, 
in  our  opinion,  be  promoted  by  continuing  the  practice  so 
long  observed,  the  motion  to  dismiss  the  appeal  is  denied. 

Motion  Overruled. 


Decided  28  August,  1905. 

On  the  Merits. 

For  appellants  there  was  a  brief  over  the  name  of  Carson 
&  Cannon,  with  an  oral  argument  by  Mr.  Anderson  M. 
Cannon, 

For  respondent  there  was  a  brief  with  oral  arguments 
by  Mr.  Benjamin  Franklin  Bonham  and  Mr,  Carey  Fuller 
Martin. 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

On  the  1st  of  October,  1903,  the  plaintiff  leased  to  de- 
fendants certain  premises  for  the  period  of  one  year.  The 
lease  contained,  among  others,  the  following  conditions, 
namely : 

47  Ob.  —  u 


162  WoLFER  V,  PuRST.  [47  Or. 

**And  it  is  agreed  that  if  any  rent  shall  be  due  and  un- 
paid, or  if  default  shall  be  made  in  any  of  the  covenants 
herein  contained,  then  it  shall  be  lawful  for  the  said  party 
of  the  first  part  to  reenter  said  premises  and  to  remove  all 
persons  therefrom ;  the  party  of  the  second  part  hereby 
waiving  any  notice  to  quit  or  of  intention  to  reenter  under 
the  statute.  And  the  said  party  of  the  second  party  cove- 
nant9  ♦  ♦  that  at  the  expiration  of  the  said  term  or  other 
determination  of  this  lease  the  party  of  the  second  part 
will  quit  and  surrender  the  premises  hereby  demised  in  as 
good  state  arid  condition  as  reasonable  use  and  wear  thereof 
will  permit." 

The  defendants  refusing  to  surrender  at  the  end  of  their 
term,  the  plaintiff  instituted  this  action  of  forcible  entry 
and  detainer.  At  the  trial  there  was  no  proof  of  the  giving 
of  any  notice  to  quit  on  the  part  of  the  plaintiff,  and  the 
defendants  moved  for  a  nonsuit,  which  being  denied,  plain- 
tiff had  judgment;  hence  this  appeal. 

It  will  be  helpful  to  us  if  we  take  a  retrospect  of  the 
law  of  tenancies  as  it  pertains  to  the  necessity  of  demand 
and  notice  for  their  termination.  At  common  law  a  ten- 
ancy at  sufferance  was  created  when  a  person  came  into 
possession  of  land  lawfully  and  held  over  wrongfully  after 
his  estate  had  ended.  The  tenancy  was  of  a  most  shadowy 
character,  and  the  landlord  could  reenter  and  bring  eject- 
ment for  possession  without  the  necessity  of  prior  demand 
or  notice  to  quit:  18  Am.  &  Eng.  Enc.  Law  (2  ed.),  177, 
180.  A  tenancy  at  will  was  more  stable,  and  arose  where 
lands  or  tenements  were  let  to  hold  at  the  will  of  either 
party  to  the  letting,  by  force  of  which  the  lessee  was  in 
possession.  It  was  not  essential  that  the  contract  should 
be  express,  but  sufficient  that  it  was  implied,  and  there- 
fore an  estate  by  sufferance  might  be  converted  into  a 
tenancy  by  will,  if  the  holding  was  of  sufficient  duration 
as  that  the  assent  of  the  landlord  to  the  holding,  which 
was  at  first  wrongful,  might  be  presumed.    Thus  a  tenant 


Aug.  1905.]  WoLFKR  V.  Hurst.  163 

holding  over  after  the  expiration  of  a  term  might  become 
a  tenant  at  will  by  the  implied  assent  of  the  owner:  18 
Am.  &  Eng.  Enc.  Law  (2  ed.),  182,  183.  This  estate  was 
determinable  by  a  demand  for.  possession,  such  as  indi- 
cated the  landlord's  intention  that  the  tenancy  should 
cease.  Nor  need  the  demand  to  have  been  express,  but 
it  might  have  been  signified  by  acts  tiintamount  thereto : 
18  Am.  &  Eng.  Enc.  Law  (2  ed.),  186,  187.  Periodical 
tenancies,  or,  as  they  are  commonly  known,  ^'tenancies 
from  year  to  year,"  grew  at  an  early  date  by  judicial  con- 
struction out  of  the  old  tenancies  at  will.  These  latter 
were  attended  with  many  inconveniences,  to  obviate  which 
the  courts  raised  an  implied  lease  for  a  certain  period,  and 
ingrafted  upon  it  a  rule  of  law  that  the  tenancy  could  not 
be  terminated,  even  at  the  end  of  the  period,  without  pre- 
vious notice.  Such  tenancy  could  arise  by  express  con- 
tract, while,  upon  the  other  hand,  it  might  have  arisen  by 
implication,  as,  where  a  tenant  held  over  after  the  expira- 
tion of  a  lease  with  the  consent  of  the  landlord  and  con- 
tinued to  pay  a  periodical  rental,  the  law  raised  another 
term  equivalent  to  the  period  of  payment:  18  Am.  &  Eng. 
Enc.  Law  (2  ed.).  191, 192, 197.  These  tenancies  were  de- 
terminable  by  notice,  the  length  of  time  of  which  to  be 
given  was  according  to  whether  the  tenancy  was  strictly 
from  year  to  year  or  less,  as  from  quarter  to  quarter,  or 
month  to  month,  and  the  like.  If  from  year  to  year,  six 
months  was  required;  if  for  a  less  term,  shorter  notice 
was  sufficient;  and  such  is  the  common  law  in  force  in 
the  United  States.  This  notice  should  expire  on  the  ter- 
minal day:  18  Am.  &  Eng.  Enc.  Law  (2  ed.),  202-204. 
The  right  to  determine  the  tenancy  by  notice  was  an 
inseparable  incident  of  the  holding,  and  was  exercisable 
by  either  the  landlord  or  the  tenant,  being  for  the  mu- 
tual benefit  of  both  :  Wood,  Land.  &  Ten.  p.  64,  §  22.  But 
the  parties  to  such  a  tenancy  could  alter  the  notice  neces- 


164  WoLFKR  V.  Hurst.  [47  Or. 

sary  to  determine  it,  and  could  agree  to  a  notice  of  less 
duration  or  period  (18  Am.  &  Eng.  Enc.  Law,  2d  ed.,  205; 
Wood,  Land.  &  Ten.  §  33);  or  they  might  have  waived  it 
entirely  by  a  writing  under  their  hands:  Wo(»d,  Land.  & 
Ten.  §  40;  Gear,  Land.  &  Ten.  §  191 ;  Williams  v.  PotUr^ 
2  Barb.  316;  Vegely  v.  Robinson,  20  Mo.  App.  199;  Sted- 
man  v.  Mcintosh,  26  N.  C.  291,  (42  Am.  Dec.  122).  A  ten- 
ancy for  years  need  not  be  defined.  It  is  sufficient  for  our 
purpose  that  such  a  tenancy  was  determinable  by  the  mere 
expiration  of  the  period  for  which  the  lands  were  demised, 
and  neither  demand  nor  notice  was  necessary  or  requisite 
to  enable  the  landlord  to  reenter  or  maintain  ejectment 
for  possession :  Smith  v.  Reeder,-  21  Or.  541  (28  Pac.  890, 
15  L.  R.  A.  1 72).  Such  a  tenancy,  however,  was  susceptible 
of  being  converted  into  a  tenancy  at  will  or  a  periodical 
tenancy ,and  when  so  changed  it  could  only  be  terminated 
as  other  tenancies  of  the  kind. 

8.  Cursorily,  such  was  the  law  when  the  statutes  began 
their  innovations,  and  in  most  jurisdictions  there  exist 
regulations  respecting  the  length  of  time  notice  is  required 
to  be  given  to  terminate  periodical  tenancies.  Our  statute 
requires  three  months'  notice  in  writing  for  the  termina- 
tion of  estates  at  will  or  sufferance ;  but,  when  the  rent 
reserved  in  the  lease  is  payable  at  periods  of  less  than 
three  months,  the  time  of  such  notice  is  sufficient  if  it  be 
equal  to  the  interval  between  the  times  of  payment.  In 
cases  of  neglect  and  refusal  to  pay  the  rent  when  due,  14 
days'  notice  only  is  sufficient  for  the  purpose :  B.  &  C. 
Comp.  §  5390.  By  another  section,  when,  in  the  case  of  a 
lease  of  real  property  and  the  failure  of  the  tenant  to  pay 
rent,  the  landlord  has  a  subsisting  right  to  reenter  for 
such  failure,  he  may  bring  an  action  to  recover  possession, 
the  action  being  equivalent  to  a  demand  for  payment  and 
a  reentry:  B.  &  C.  Comp.  §  338.  These  provisions  by 
general  statute.    The  forcible  entry  and  detainer  act  pro- 


Aug.  1905.]  WoLFER  V,  Hurst.  165 

vides  that  the  following  shall  be  deemed  cases  of  unlawful 
holding  by  force,  namely: 

"1.  When  the  tenant  or  person  in  possession  of  any 
premises  shall  fail  or  refuse  to  pay  any  rent  due  on  the 
lease  or  agreement  under  which  he  holds,  or  deliver  up 
the  possession  of  said  premises  for  ten  days  after  demand 
made  in  writing  for  such  possession. 

2.  When,  after  a  notice  to  quit  as  provided  in  this  chap- 
ter, any  person  shall  continue  in  the  possession  of  any 
premises  at  the  expiration  of  the  time  limited  in  the  lease 
or  agreement  under  which  such  person  holds,  or  contrary 
to  any  condition  or  covenant  thereof,  or  without  any  writ- 
ten lease  or  agreement  therefor":  B.  &  C.  Com  p.  §  5755. 

The  notice  specified  in  the  latter  subdivision  must  be  in 
writing  and  served  upon  the  tenant  for  a  period  of  10  days 
before  the  commencement  of  the  action,  unless  the  leasing 
or  occupation  is  for  the  purpose  of  farming  or  agriculture, 
in  which  case  the  service  must  be  for  90  days :  B.  &  C. 
Comp.  §§  5756,  5757.  It  is  manifestly  the  purpose  of  these 
statutes  to  change  the  time  of  notice  requisite  to  entitle 
the  landlord  to  reenter,  as  it  relates  to  the  several  kinds 
of  tenancies  known  to  the  common  law,  and  in  addition 
thereto  to  provide  appropriate  remedies  for  reentry  in 
these  and  other  cases.  It  is  difficult  in  practice  to  deter- 
mine the  true  intendment  and  legal  effect  of  section  5755. 
Indeed,  Chief  Justice  Thayer  has  said,  aqd  not  inappro- 
priately, that  "the  forcible  entry  and  detainer  act  adopted 
in  1866  seems  to  have  been  thrust  into  the  statute  with- 
out regard  to  its  harmony  or  fitness  with  the  other  pro- 
visions": Rosenblat  v.  Perkins,  18  Or.  156, 160  (22  Pac.  598, 
6  L.  R.  A.  257),  The  act  of  1866  (see  Laws  1866,  p.  33,)  is 
revisory  of  the  forcible  entry  and  detainer  act  as  it  existed 
in  territorial  days,  although  it  was  preceded  in  1864  by 
another  act  intended  for  the  same  purpose:  Gen.  Laws 
1845-64,  p.  743.  Under  the  territorial  law  a  person  was 
authorized  to  recover  the  possession  of  the  premises  when 


166  WoLFBR  V.  Hurst.  [47  Or. 

any  rent  shall  have  become  due  on  any  lease  or  agree- 
ment, and  the  tenant  or  person  in  possession  shall  have 
neglected  or  refused  for  10  days  after  demand  of  the  pos- 
session made  in  writing  to  deliver  the  possession  or  pay 
the  rent  so  due:  Laws  1854-55,  p.  317,  §  160,  subd.  2. 
Subdivision  1  of  the  section  under  consideration  was  de- 
signed, no  doubt,  as  a  revision  of  this  provision ;  but  the 
latter  clause  thereof  is  meaningless  unless  read  in  con- 
nection with  the  first,  so  as  to  make  the  10  days*  demand 
for  possession  necessary  after  the  failure  to  pay  the  rent, 
and  hence  that  the  action  could  not  be  maintained  until 
both  the  failure  to  pay  rent  and  the  demand  for  posses- 
sion were  made.  We  are  inclined  to  think  that  such  is 
the  proper  rendering  of  this  subdivision,  and  the  land- 
lord could  not  have  a  cause  of  action  for  forcible  entry 
and  detainer  under  this  subdivision  until  both  these  pre- 
requisites have  been  observed.  This,  however,  by  way  of 
discussion,  that  we  may  be  better  understood  upon  the 
question  at  issue,  not  that  we  intend  an  authoritative  in- 
terpretation of  such  first  subdivision  now. 

The  real  question  involved  here  is  whether  the  notice 
referred  to  in  the  second  subdivision  is  intended  as  a  no- 
tice for  terminating  the  tenancy,  or  as  a  necessary  step  in 
the  procedure  for  reentry  by  forcible  entry  and  detainer 
action.  If  the  former,  it  is  susceptible  of  waiver  by  the 
tenant,  as  such  a  notice  was  so  at  common  law ;  but,  if  the 
latter,  it  is  a  matter  with  which  the  parties  can  have  noth- 
ing  to  do,  and  the  landlord  must  give  the  notice  before  he 
can  maintain  his  action.  The  relief  by  forcible  entry  and 
detainer  is  unquestionably  designed  as  a  summary  pro- 
ceeding to  give  speedy  and  prompt  relief,  and  the  action 
is  essentially  civil  in  character  although  the  form  of  the 
verdict  of  the  jury  would  seem  to  indicate  otherwise.  A 
service  of  summons  is  required  for  a  period  of  not  less 
than  two  nor  more  than  four  days  before  the  day  appointed 


Aug.  1905.]  WoLPER  V.  Hurst.  167 

for  trial,  thus  reducing  the  time  of  service  as  compared 
with  other  actions  of  which  the  justice  is  given  jurisdic- 
tion :  B.  &  C.  Comp.  §  5749.  Section  5755  is  designed  to 
give  the  action  for  a  constructive  forcible  detainer.  The 
action  for  a  forcible  entry  and  detainer,  wherein  the  force 
must  be  actual,  is  provided  for  by  section  5746 :  Taylor  v. 
Scoit,  10  Or.  483;  Harrington  v.  Watson,  11  Or.  143  (3  Pac. 
173,  50  Am.  Rep.  465);  Smith  v.  Reeder,  21  Or.  541  (28 
Pac.  890,  15  L.  R.  A.  172);  Twiss  v.Boehmer,  39  Or.  359 
(65  Pac.  18).  In  the  language  of  Mr.  Chief  Justice  Lord, 
"that  section  [5755]  creates  a  species  of  constructive  force, 
where  none  in  fact  exists.  A  tenant,  notified  to  quit,  who 
refuses  to  surrender  possession  of  the  premises,  and  is 
holding  over  after  the  expiration  of  his  lease,  within  the 
meaning  of  the  statute,  is  guilty  of  holding  by  force,  as 
much  so  as  though  he  held  it  with  actual  force'':  Hislop 
v.  Moldenhauer,  21  Or.  208,  210,  (27  Pac.  1052).  The  cases 
are  numerous  where,  considering  the  statutes  giving  the 
remedy,  the  notice  is  deemed  and  held  to  be  a  part  of 
the  procedure,  and  the  action  cannot  be  maintained,  nor 
the  court  acquire  jurisdiction  in  the  premises.  Until  it  is 
given  in  fact,  and  it  is  therefore  insusceptible  of  waiver. 
Such  is  the  case  of  Doss  v.  Craig,  1  Colo.  177,  where  a  de- 
mand for  possession  was  required,  and  it  was  held  that 
such  a  demand  was  absolutely  and  essentially  necessary 
to  a  maintenance  of  the  action.  In  Nebraska  it  is  made 
the  duty  of  the  person  desiring  to  commence  the  action 
to  notify  the  adverse  party  to  leave  the  premises  for  the 
possession  of  which  action  is  about  to  be  brought,  which 
notice  shall  be  served  at  least  three  days  before  the  com- 
mencement of  the  action.  This  notice  is  held  to  be  juris- 
dictional. The  statute  makes  it  a  part  of  the  procedure: 
Hendrickson  v.  Beeson,  "21  Neb.  61  (31  N.  W.  266);  Pollock 
V.  Whipple,  33  Neb.  752  (51  N.  W.  130).  So  in  Kansas, 
where  it  is  said :  *'The  statute  is  mandatory  that  a  party 


168  WoLFBR  V.  Hurst.  [47  Or. 

desiring  to  commence  an  action  for  forcible  entry  and 
detainer  must  notify  the  adverse  party  to  leave  the  prem- 
ises for  the  possession  of  which  the  action  is  about  to  be 
brought,  and  that  this  notice  shall  be  served  at  least  three 
days  before  the  commencement  of  the  action":  Douglass 
V.  Whitaker,  32  Kan.  381  (4  Pac.  874).  See  also,  Nason  v. 
Best,  17  Kan.  408;  Stuller  v.  Sparks,  51  Kan.  19  (31  Pac. 
301 ).  So  in  Iowa  :  Orosvenor  v.  Henry,  27  Iowa,  269.  See, 
also,  McDevitt  v.  Lambert,  80  Ala.  536  (2  South.  438).  But, 
where  the  notice  is  not  designed  as  a  part  of  the  proced- 
ure in  the  action,  it  is,  on  the  other  hand,  susceptible  of 
waiver  by  the  parties:  Espan  w,  Hinchcliffe,  131  111.  468 
(23  N.  E.  592);  Eichart  v.  Bargas,  12  B.  Mon.  462;  Wag- 
gaman  v.  Bartlett,  2  Mackey,  450. 

Turning  again  to  the  statute,  there  is  an  apparent  rec- 
ognition of  the  common-law  idea  that  a  person  might,  by 
holding  over  a  stated  term^  become  a  tenant  from  year  to 
year  or  month  to  month,  as  the  case  may  be,  by  the  implied 
assent  of  the  landlord,  and  the  mcrst  natural  deduction  is 
that  the  legislature  intended  by  the  notice  provided  for  to 
forestall  the  implied  assent  and  thereby  terminate  the  lease 
absolutely,  and  when  so  terminated  there  would  be  a 
wrongful  holding  by  the  tenant,  because  he  could  not  then 
presume  upon  the  assent  of  the  landlord  to  his  further 
holding.  If  the  landlord  desires  a  termination  absolutely 
at  the  date  of  the  expiration  of  the  lease,  he  might  accom- 
plish it  by  giving  the  requisite  notice  preceding  that  date, 
or  he  might  terminate  it  subsequently  thereto  by  the 
proper  notice,  providing  his  preceding  acts  could  not  be 
construed  into  a  letting  for  the  succeeding  period.  But, 
if  he  desired  to  terminate  the  lease  because  of  a  breach  of 
a  condition  or  covenant,  then  the  notice  must  follow  the 
breach,  of  course  ;  for  how  could  the  landlord  foretell  with 
certainty  that  there  would  be- a  breach,  so  as  to  conform 
his  notice  to  the  fact?    Now,  in  harmony  with  the  law  as 


Aug.  1905.]  WoLFER  V,  Hurst.  169 

it  stood  prior  to  the  statute,  a  tenant  could,  if  he  saw  fit, 
waive  the  notice  to  quit  and  terminate  the  conrt;ractuai  re- 
lations, so  as  to  entitle  the  landlord  to  a  reentry  at  once 
upon  the  expiration  of  the  term.  In  the  case  of  Smith  v. 
Reeder,  21  Or.  541  (15  L.  R.  A.  172,  28  Pac.  890),  where  a 
landlord  had  reentered  peaceably  upon  the  day  of  the  ex- 
piration of  the  lease  by  its  own  terms,  it  was  held  that 
there  was  no  such  a  forcible  entry  and  detainer  as  would 
give  the  tenant  a  remedy  under  the  act.  Such  a  termina- 
tion would  entitle  the  landlord  to  his  action  in  ejectment. 
But  the  tenant  could  not  be  deemed  guilty  of  a  forcible 
detainer,  under  the  statute  we  are  considering,  without  a 
notice  to  quit  given  in  the  manner  prescribed,  because  he 
may  hold  over,  and,  if  the  landlord  should  assent  thereto 
tacitly  or  otherwise,  a  new  relation  would  arise  through  a 
periodical  tenancy.  It  is  to  cut  off  this  condition  that  the 
statute  requires  the  notice,  and  holding  against  the  notice 
is  constructively  forcible  and  gives  the  action.  But  why 
cannot  the  tenant  waive  the  notice  ?  In  Rosenblat  v.  Per- 
kins, 18  Or.  156  (6  L.  R.  A.  257,  22  Pac.  598),  Mr.  Chief 
Justice  Thayer  strongly  intimates*that  an  action  will  lie 
under  the  forcible  entry  and  detainer  act,  where  notice  is 
given  under  the  general  statute  for  the  termination  of 
tenancies  by  will  or  sufferance,  and  hence  the  deduction 
is  that  the  notice  as  required  by  the  act  in  question  is  not 
always  essential  to  characterize  a  forcible  detainer,  and 
that  there  could  be  a  constructive  holding  by  force  with- 
out it.  These  authorities  by  way  of  analogy,  not  that  they 
decide  the  question  squarely. 

The  idea  that  the  notice  provided  for  was  intended  as 
a  part  of  the  procedure  essential  to  give  the  court  juris- 
diction is  inconsistent  with  the  cardinal  purpose  of  the 
act,  namely,  that  of  affording  the  landlord  a  summary 
remedy.  It  is  far  from  summary  to  say  that  the  landlord 
shall  make  a  demand  of  10  days,  or  give  a  notice  of  10  or 


170  WoLFER  V.  Hurst.  [47  Or. 

90  days,  as  the  case  may  be,  and  then  give  another  notice 
by  summons  of  from  two  to  four  days,  before  the  court 
can  even  acquire  jurisdiction  to  act  in  the  premises.  But 
it  does  afford  a  summary  remedy  when  we  say  that  the 
court  shall  have  jurisdiction  to  pronounce  judgment  upon 
a  service  of  a  summons  from  two  to  four  days  after  the 
legal  termination  of  the  lease  or  tenancy.  As  corrobora- 
.  tive  of  this  view  is  the  fact  that  the  statute  (section  5747) 
prescribes  what  is  necessary  to  state  a  cause,  namely^  after 
describing  the  premises,  that  the  defendant  is  in  posses- 
sion thereof,  that  he  entered  with  force  or  unlawfully  holds 
the  same  with  force,  as  the  case  may  be,  and  that  the 
plaintiff  is  entitled  to  possession,  omiting  all  reference  to 
the  notice ;  whereas,  if  it  had  been  deemed  necessary  to 
give  the  court  jurisdiction,  it  is  natural  to  suppose  that 
the  giving  of  it  would  have  been  required  to  have  been 
stated,  as  the  court  held  in  Doss  v.  Craig,  1  Colo.  177,  with 
reference  to  the  demand.  Subdivision  1,  as  we  conceive 
its  intendment  to  be,  is  also  in  harmony  with  this  view. 
When  all  is  considered,  the  most  reasonable  construction 
would  seem  to  be  thai  the  notice  was  intended  for  the 
absolute  termination  of  contractual  relations,  not  as  an 
essential  part  of  the  procedure  for  forcible  entry  and  de- 
tainer. The  procedure  must  be  distinguished  or  held  dis- 
tinct from  the  manner  of  terminating  such  relations,  from 
which  time  the  tenant  w^ill  be  deemed  to  be  holding  wrong- 
fully. The  statutory  notice  for  terminating  these  relations 
may  be  waived,  the  same  as  the  common-law  notice  could 
have  been,  and,  when  waived  by  the  tenant,  he  will  be 
deemed  as  much  guilty  of  a  wrong  by  holding  thereafter 
as  if  the  notice  was  given.  This  construction  of  the  stat- 
ute, while  not  entirely  satisfactory,  is  promotive  of  the 
intendment  that  the  proceeding  should  be  summary,  and 
is  in  harmony  with  the  practice  generally  pursued  in 
drawing  leases  with  reference  to  the  statute. 


Aug.  1905.]  Davis  v.  Silvbrton.  171 

We  are  constrained,  therefore,  to  affirm  the  judgment 
of  the  circuit  court,  and  such  will  be  the  order  here. 

Affirmed. 


Argued  20  July,  decided  28  August,  1903. 
DAVIS  V.  SIIiVEBTON. 

82  Pac.  16. 

McTNiciPAL  Corporations  — Unauthorized  Encroachment  on  Prop 
KRTY  — Effect  on  Improvement  Procebdinqs  — Injunction. 

1.  Where  a  city  by  valid  proceedings  authorlzeR  the  grading  of  a  street  and 
assesses  benefits  against  the  abutting  property,  without  any  pretense  of  widen- 
ing the  street  or  of  appropriating  abutting  property  for  that  purpose,  the  fact 
that  its  officials  or  agents  in  making  the  improvement  wrongfully  and  unlaw- 
fully, but  unintentionally  and  without  design,  encroach  upon  the  lots  of  an 
abutter,  does  not  invalidate  the  proceedings  or  authorize  the  abutter  to  enjoin  the 
collection  of  the  assessment  levied  against  him. 

Liability  of  City  for  Trespass  or  Unlawful  Seizure. 

2.  A  municipal  corporation  has  no  more  right  to  encroach  upon  or  seize  pri- 
vate property  than  an  Individual  has,  and  for  such  action  it  is  liable  in  damages. 

Effect  on  Title  of  Encroachment  by  Municipality  on  Private 
Property  of  a  Citizen. 

8.  A  city  cannot  acquire  title  to  real  property  by  seizing  it  or  committing  a 
permanent  trespass,  as  by  extending  or  widening  a  street  without  proper  pro- 
ceedings or  sufficient  authority. 

Street  Improvements— Injury  to  Abutting  Property. 

4.  Where  a  city,  in  grading  a  street,  exercises  care  and  skill  in  doing  the 
work,  and  does  not  encroach  on  abutting  property,  any  injury  to  such  property 
resulting  therefrom  is  damnum  absque  injuria. 

Equity— Jurisdiction— Failure  OF  Equitable  Jurisdiction- Effect 
ON  Legal  Relief. 

6.  The  fact  that  an  abutting  owner  has  a  cause  of  action  against  the  city  for 
unlawfully  encroaching  upon  his  property  while  grading  the  street  does  not 
authorize  him  to  enforce  his  right  to  damages  in  a-suitin  equity  to  enjoin  the 
collection  of  the  assessment  levied  against  his  property  for  the  grading,  where 
the  proceedings  leading  up  to  making  the  assessment  were  regular,  and  the 
injunction  relief,  which  is  made  the  basis  of  equitable  Jurisdiction,  cannot  be 
properly  granted. 

From  Marion:  William  Galloway,  Judge. 

Statement  by  Mr.  Chief  Justice  Wolverton. 

This  is  a  suit  for  an  injunction  by  Susan  M.  Davis 
against  the  City  of  Silverton  and  its  Chief  of  Police.  The 
amended  complaint  sets  out  that  the  City  of  Silverton  is 
a  municipality ;  that  C.  N.  Matlock  is  its  chief  of  police; 
that  plaintiff  is  the  owner  of  lots  3  and  12  in  said  city; 


172  Davis  v.  Silverton.  [47  Or. , 

that  said  lots  abut  on  First  Street ;  that  plaintiff  had 
formerly  constructed  along  the  line  of  her  lots  on  First 
Street  a  stone  wall,  of  the  reasonable  value  of  $200 ;  that 
on  August  3, 1903,  the  common  coun<5il  of  the  city  passed 
Ordinance  No.  47,  entitled  : 

**An  ordinance  ordering  First  Street  from  the  south  line 
of  Lewis  Street  to  the  south  line  of  A  Street  in  Brown's  Ad- 
dition to  Silverton  improved,  making  assessment  against 
the  abutting  property  to  defray  the  expenses  of  the  same, 
and  fixing  the  time  and  manner  of  the  payment  of  such 
tax/' 

A  copy  of  the  ordinance  is  then  set  out  and  it  is  alleged 
that  thereafter  — 

"The  said  defendant  by  and  through  its  common  council, 
and  by  virtue  of  the  said  OrdinancB  No.  47,  without  any 
authority  of  law,  and  assuming  that  the  said  Brown's  Addi- 
tion had  been  legally  dedicated  and  laid  out  as  required  by 
law,  undertook  to  improve  and  widen  said  First  Street,  as 
known  with  reference  to  Brown's  Addition,  in  said  City  of 
Silverton,  and  in  so  doing  wrongfully  and  unlawfully  un- 
dertook to  condemn  and  convert  to  its  own  use  a  certain 
portion  of  said  plaintiff's  property  abutting  on  said  First 
Street,  and  against  her  protest  tore  down  and  destroyed  her 
said  stone  wall  on  her  said  property,  as  hereinbefore  alleged, 
and  attempted  to  convert  said  property  to  its  own  use 
with  reference  to  said  street  as  claimed  to  exist  by  said 
defendant,  to  plaintiff's  damage  in  the  sum  of  $200,  and 
without  any  legal  right  whatsoever,  and  without  any  pre- 
tended authority  whatever,  except  as  claimed  by  said 
defendant  under  said  Ordinance  No.  47,  and  the  further 
proceedings  with  reference  thereto." 

These  proceedings  are  stated  as  follows: 

"That  on  or  about  the  14th  day  of  December,  1903,  the 
common  council  of  defendant  undertook  with  reference 
to  the  condemning  and  appropriating  the  property  of  said 
plaintiff  as  aforesaid,  passed  Ordinance  No.  48,  entitled 
*A  bill  for  ordinance  to  provide  for  notice  to  parties  in 
relation  to  assessment  of  property  for  street  improve- 
ments.' " 


Aug.  1905.]  Davis  v.  Silverton.  173 

This  ordinance  also  is  then  set  out  in  full. 
It  is  further  alleged  that  thereafter  defendant,  through 
its  common  council,  passed  Ordinance  No.  49,  entitled : 

"A  bill  for  an  ordinance  declaring  the  cost  of  improve- 
ment of  First  Street,  from  the  north  line  of  Lewis  Street, 
to  A  Street,  in  Brown's  Addition  to  .the  City  of  Silverton, 
and  directing  the  share  thereof  for  each  lot  or  part  thereof, 
or  parcel  of  land  abutting  on  said  street,  and  directing  the 
entry  thereof  in  the  docket  of  city  liens." 

The  pleader  then  gives  this  entire  ordinance,  which  re- 
cites, among  other  things,  the  following : 

"That  the  proportionate  share  of  the  hereinafter  de- 
scribed property  for  the  cost  and  expense  of  making  said 
improvement  on  the  part  of  First  Street  in  front  of  and 
abutting  on  said  property  to  the  center  of  the  street  is 
$113.60,  and  that  the  proportionate  share  of  the  cost  of 
said  improvement  to  be  assessed  against  said  property  is 
$113.60 ;  that  there  be  and  is  hereby  assessed  against  said 
property  for  the  proportionate  share  of  said  improvement 
the  sum  of  $113.60;  that  Susan  M.  Davis  is  the  owner 
thereof,  and  said  property  is  described  as  follows:  Lots 
number  3  and  12,  in  the  Town  of  Silverton,  south.  County 
of  Marion,  State  of  Oregon,  according  to  the  Silverton 
town  plat,  and  containing  one  half  acre  of  laud." 

It  is  further  alleged  that  thereafter,  the  plaintiff  refus- 
ing to  pay  her  assessment,  a  warrant  was  by  resolution  of 
the  council  issued  and  placed  in  the  hands  of  the  chief  of 
police,  who  is  now  threatening  to  execute  the  same  by  levy 
and  sale  of  plaintiff's  said  lots  for  the  purpose  of  making 
the  amount  of  said  pretended  assessment.  This  allegation 
then  follows : 

"That  the  said  City  of  Silverton,  under  its  charter  and 
act  of  incorporation,  is  now  clothed  with  no  authority  or 
power  to  undertake  to  appropriate  private  property  in  the 
manner  attempted  in  the  proceedings  as  set  out  in  this 
complaint,  and  that  the  said  City  of  Silverton,  defendant 
herein,  attempted  to  widen  said  First  Street,  and  attempted 


174  Davis  v.  Silverton.  [47  Or. 


I 


to  make  the  same  60  feet  in  width,  and  that  the  only  pro- 
ceedings taken  by  the  said  council  of  defendant  in  its  at- 
tempt to  widen  said  street  are  as  hereinbefore  set  forth; 
that  if  the  said  First  Street  were  permitted  to  remain 
widened  as  the  said  council  has  attempted  by  its  said  pro- 
ceedings, the  curbing  line  on  said  street  would  be  and  is 
now  located,  after  the  destruction  of  the  said  stone  wall  as 
aforesaid,  upon  the  property  of  the  plaintiff  herein,  there 
being  no  provision  made  whatever  for  a  sidewalk." 

Finally,  it  is  alleged  that,  unless  restrained,  the  chief  of 
police  will  execute  said  warrant. 

The  relief  demanded  is  that  defendant  be  enjoined  from 
fuHher  attempt  to  enforce  the  payment  of  the  said  assess- 
ment, and  that  plaintiff  have  a  decree  against  defendant  in 
the  sum  of  $200  for  damages  sustained  in  the  destruction 
of  her  said  stone  wall.  There  was  a  demurrer  to  the  com- 
plaint, which  was  overruled,  and  the  defendants  answered, 
setting  up  some  further  and  separate  matter.  The  trial 
resulted  in  a  decree  enjoining  further  proceedings  on  the 
part  of  the  city,  and  adjudged  damages  against  it  in  the 
sum  of  $50,  from  which  defendants  appeal. 

Reversed. 

For  appellants  there  was  a  brief  over  the  names  of  L.  J. 
Adams  and  George  Greenway  Bingham,  with  an  oral  argu- 
ment by  Mr.  Bingham, 

For  respondent  there  was  a  brief  with  oral  arguments 
by  Mr,  William  Henry  Holmes  and  Mr.  Webster  Holmes. 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

Counsel  for  appellants  insist  that  the  demurrer  was  well 
taken,  on  the  ground  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  suit;  but,  waiving 
this,  we  will  determine  the  controversy  upon  its  merits. 
There  is  some  discrepancy  in  the  testimony  as  to  whether 
plaintiff's  retaining  wall,  which  was  constructed  of  stone, 
about  18  inches  thick  and  4  feet  high,  stood  out  in  the 


Aug.  1905.].  Davis  v.  SiLVERTON.  175 

street  or  not.  The  plaintiff  contends  that  it  was  on  the  line 
to  which  she  and  her  predecessors  had  maintained  exclu- 
sive possession,  as  her  counsel  say  in  their  brief,  for  more 
than  25  years.  The  weight  of  the  testimony,  we  think, 
however,  shows  that  the  wall  was  probably  on  the  line  at 
one  end,  but  extended  into  the  street  some  9  inches  at  the 
other.  However  this  may  be,  we  may  assume  that  plain- 
tiff's wall  was  upon  her  line,  and  that  there  was  an  actual 
encroachment  by  the  city  upon  her  property  in  making 
the  improvement.  These  conditions  would  show  a  trespass 
by  the  city,  but  not  of  themselves  such  that  plaintiff  is  en- 
titled to  equitiible  relief.  Both  the  complaint  and  the  evi- 
dence offered  in  support  thereof  indicate  unmistakably 
that  the  proceedings  were  begun  and  prosecuted  with  the 
sole  purpose  of  grading  and  improving  the  street.  Con- 
sidered as  a  proceeding  for  an  improvement,  counsel  make 
no  objections  to  it,  either  constitutional  or  otherwise,  chal- 
lenging its  regularity,  and  it  is  only  as  an  attempt  to  widen 
the  street  and  appropriate  property  therefor  that  they  ques- 
tion its  appropriateness  and  efficacy.  So  that,  standing 
disconnected  from  the  alleged  attempt  to  widen  the  street 
and  consequent  encroachment  upon  plaintiff's  property, 
the  proceeding  must  be  taken  to  have  been  sufficient  to 
impress  plaintiff's  property  with  the  assessment,  and  to 
autliorize  a  sale  of  it  for  delinquency  in  payment.  We 
look  in  vain,  however,  for  any  evidence  of  an  attempt  on 
the  part  of  the  city  to  use  the  proceedings  which  it  inau- 
gurated to  subserve  the  purpose  of  widening  the  street  and 
condemning  private  property  therefor.  Upon  the  other 
hand,  the  testimony  shows  that  the  city  did  the  work  in 
the  prosecution  of  the  improvement  in  good  faith,  believ- 
ing that  it  was  grading  to  the  street  line  only,  without  any 
wilful  design  or  purpose  of  encroaching  upon  private  prop- 
erty, having,  as  it  supposed,  ascertained  the  true  boundary 
dividing  the  street  from  plaintiff's  property. 


176  Davis  v.  Silverton.  [47  Or. 

As  bearing  upon  this  subject,  Albert  Whitlock  testified 
that  he  had  been  a  surveyor  in  the  city  for  eight  years  and 
that  he  had  become  familiar  with  the  monuments ;  that  he 
is  familiar,  also,  with  the  west  boundary  line  of  plaintiff's 
lots  bordering  on  First  Street ;  that  at  the  southeast  corner 
of  the  lot  the  wall  extended  into  the  street  12  or*13  inches ; 
that  he  had  not  measured  it  exactly;  that  at  the  other 
corner  the  wall  above  the  ground  was  very  close,  within  two 
or  three  inches  of  the  line,  but  that  the  base  extended  out 
seven  or  eight  inches ;  that  he  did  the  engineering  work 
for  the  city  in  making  the  improvement,  surveying  and 
setting  the  grade  stakes ;  that  he  determined  the  boundary 
lines  of  First  Street  by  working  from  the  monuments,  and 
after  they  were  determined  he  set  the  grade  stakes  and 
made  the  estimates  of  embankment  and  excavation  neces- 
sary to  bring  the  street  to  proper  grade ;  that  when  the 
contract  was  let  he  superintended  the  work  to  see  that  the 
survey  w^as  followed  ;  and  that  the  line  of  improvement  on 
the  west  boundary  of  plaintiff's  property  is  as  near  the  true 
street  line  as  he  could  practically  get  it.  This  testimony 
indicates  very  clearly  that  the  city  was  not  making  a  pre- 
tense of  one  thing  to  accomplish  another,  but  was  pursuing 
in  good  faith  a  course  it  designed  for  making  an  improve- 
ment, and  not  for  widening  the  street.  Now,  in  doing  the 
work,  the  grade  being  slightly  lower  than  the  foot  of  the 
wall,  the  city  extended  the  excavation  at  one  end  somewhat 
under  the  wall,  causing  a  portion  of  it,  with  other  influ- 
ences, perhaps,  to  settle  and  fall  in,  and  the  remainder  was 
taken  down  and  the  stone  put  back  on  plaintiff's  lots. 
There  is  some  dispute  as  to  whether  or  not  she  herself 
directed  the  remaining  portion  to  be  taken  down  and  the 
stone  disposed  of  as  indicated.  This  is  immaterial,  how- 
ever. The  essential  purpose  of  the  suit  is  to  enjoin  the 
collection  of  the  assessment  made  in  pursuance  of  the  pro- 
ceedings for  an  improvement. 


Aug.  1905.]  Davis  v.  Silverton.  177 

1.  Now,  it  is  alleged,  along  with  the  rest,  that  the  city 
undertook  to  widen  the  street,  and  in  so  doing  wrongfully 
and  unlawfully  attempted  to  condemn  a  portion  of  plain- 
tiff's property,  and,  further,  that  the  city  is  clothed  with 
neither  power  nor  authority  to  appropriate  private  prop- 
erty the  manner  attempted.  These  allegations,  when  taken 
and  read  in  connection  with  the  entire  trend  of  the  com- 
plaint, become  mere  conclusions  that  do  not  help  the 
cause.  Nor  does  the  evidence  support  them  or  establish 
their  truth.  If  in  reality  there  was  an  encroachment  upon 
plaintiff's  lots,  it  was  not  by  design  to  widen  the  street  be- 
yond the  true  boundary,  and  it  could  not,  by  any  logical 
course  of  reasoning  or  principle  involved,  invalidate  the 
the  proceedings  for  the  improvement  of  which  the  plain- 
tiff complains.  It  is  said  in  Taylor  v.  St  Louis,  14  Mo.  20 
(55  Am.  Dec.  89,  90),  Mr.  Justice  Napton  announcing  the 
opinion  :  "To  grade  a  street  or  alley  already  dedicated  to 
public  use  is  not  an  exercise  of  the  eminent  domain  so  as 
to  require  compensation.  It  is  not  appropriating  private 
property  to  public  use,  but  simply  an  exercise  of  power 
over  what  is  already  public  property.  The  damage  result- 
ii^g>  by  causing  the  plaintiffs  to  rebuild  or  prop  up  their 
falling  walls,  is  consequential,  and  as  it  is  a  consequence 
of  the  exercise  of  a  power  granted  by  the  State  to  munic- 
ipal corporations  for  public  purposes,  and  the  power  has 
not  been  abused,  but  skillfully  and  discreetly  exercised, 
the  city  authorities  are  not  responsible."  So,  in  Transpor- 
tation Company  v.  Chicago,  99  U.  S.  635, 641  (25  L.  Ed.  336), 
Mr.  Justice  Strong,  speaking  for  the  court,  said :  **lt  is 
undeniable  that,  in  making  the  improvement  of  which 
the  plaintiffs  complain,  the  city  was  the  agent  of  the  State, 
and  performing  a  public  duty  imposed  upon  it  by  the  leg- 
islature, and  that  persons  appointed  or  authorized  by  law 
to  make  or  improve  a  highway  are  not  answerable  for  con- 

47  Or. 12 


178  Davis  v.  Silverton.  [47  Or. 

sequential  damages,  if  they  act  within  their  jurisdiction 
and  with  care  and  skill,  is  a  doctrine  almost  universally 
accepted  alike  in  England  and  in  this  country.  *  ♦  The 
decisions  in  Ohio,  so  far  as  we  know,  are  the  solitary  ex- 
ceptions. The  doctrine,  however  it  may  at  times  appear 
to  be  at  variance  with  natural  justice,  rests  upon  the 
soundest  legal  reason."  See,  further,  Mayor  v.  Omberg,  28 
Ga.  46  (73  Am.  Dec.  748),  and  note  to  Perry  v.  Worcester, 
66  Am. -Dec.  431,  437,  438. 

2.  For  a  negligent  or  wilful  encroachment  or  trespass 
by  the  city  upon  the  property  of  a  citizen,  the  latter  has 
a  remedy  at  law  for  damages :  Trotter  v.  Town  of  Stayton, 
45  Or.  301  (77  Pac.  395);  City  of  McGregor  v.  Boyk,  34 
Iowa,  269. 

3.  Defendant  could  acquire  no  title  by  an  encroachment 
upon  plaintiff  under  the  proceedings  inaugurated:  Van- 
couver V.  Wintler,  8  Wash.  378  (36  Pac.  278);  Green  v.  City 
of  Tacoma  (C.  C),  51  Fed.  622. 

4.  So  that,  if  the  city  did  not  improve  beyond  the  line 
of  the  street,  and  exercised  care  and  skill  in  doing  the 
work,  and  plaintiff  was  injured,  it  was  consequential,  and 
damnum  absque  injuria.  But,  if  there  has  been  a  tres- 
pass, the  plaintiff  has  lost  none  of  her  property  and  she 
has  her  action  for  damages. 

5.  Plaintiff,  however,  asks  for  damages  for  the  encroach- 
ment upon  her  premises  as  a  part  of  her  relief  here.  Being 
recoverable  at  law,  it  could  have  no  place  in  an  equitable 
proceeding,  unless  germane  to  the  suit  or  growing  out  of 
the  proceedings  complained  of.  It  is  a  familiar  rule  that, 
if  equity  acquires  jurisdiction  for  one  purpose,  it  will  re- 
tain the  cause  for  all  purposes,  and  administer  complete 
relief.  The  rule,  however,  does  not  operate  to  give  the 
court  jurisdiction  to  administer  relief  at  law  where  the 
equity  fails :  Love  v.  Morrill,  19  Or.  545  (24  Pac.  916);  Dodd 
V.  Home  Mut.  Ins,  Co.  22  Or.  3  (28  Pac.  881,  29  Pac.  3); 


Oct.  1905.]  Kbene  v.  Eldriedgb.  179 

Whalen  v.  McMaJian,  47  Or.  37.  Such  is  the  precise  condi- 
tion here.  Plaintiff  has  failed  in  her  main  purpose  —  that 
of  enjoining  the  collection  of  the  assessment.  The  pro- 
ceedings for  the  improvement  being  regular,  and  plaintiff 
having  so  failed,  her  equitable  remedy  is  extinct.  She 
might  have  had  her  relief  to  enjoin  an  encroachment  and 
trespass  while  in  the  act,  if  the  city  was  guilty  of  the  like ; 
but,  the  act  having  been  accomplished,  her  remedy  is  to 
repossess  herself  of  the  property  and  sue  for  damages.  For 
this  she  must  be  remitted  to  her  action  at  law.  We  will 
not  attempt,  therefore,  to  determine  whether  the  defendant 
in  any  way  encroached  upon  plaintiff's  lots,  or  whether  or 
not  she  has  been  damaged  by  the  city  in  the  process  of 
making  the  improvement.  We  could  not  administer  the 
proper  relief  if  we  did. 

The  decree  of  the  circuit  court  will  be  reversed,  and  the 
complaint  dismissed. .  Reversed. 


Argued  4  October,  deolded  23  October,  1906. 

KEEKE  V.  BliDBIBDGE. 

82  Pac.  808. 

Pleading— Construction  of  When  Tested  at  Trial. 

1.  When  the  sufficiency  of  a  complaint  is  challenged  by  a  demurrer  or  motion, 
it  must  be  construed  more  strictly  against  the  plaintiff  than  when  the  question 
arises  on  the  admission  of  evidence,  in  which  case  all  intendments  are  in  favor 
of  the  complaint. 

Money  Received— Sufficiency  of  Complaint. 

2.  Under  B.  A  C.  Comp.  U  ^t  (^«  providing  that  all  forms  of  pleading  in  actions 
at  law  are  abolished, and  that  the  complaint  shall  contain  a  concise  statement  of 
the  cause  of  action,  a  complaint  showing  that  defendant  received,  as  agent  of 
plaintiff,  certain  sums,  belonging  to  plaintiff,  and  that  plaintiff  has  demanded 
payment  thereof,  is  sufficient,  in  the  absence  of  demurrer  or  motion  relating 
thereto,  notwithstanding  a  failure  to  allege  that  the  money  was  paid  to  defendant 
for  the  use  of  plaintiff,  or  that  he  promised  to  pay  it  to  plaintiff. 

Money  Received  — Evidence  as  to  Circumstances. 

3.  In  an  action  for  money  received,  evidence  that  the  money  was  paid  to  the 
defendant  at  plaintlfTs  request,  offered  as  tending  to  show  that  the  money  equita- 
bly belonged  to  plaintiff,  is  admissible,  notwithHtandfng  the  fact  that  the  com. 
plaint  contains  no  allegation  of  defendant's  promise  to  pay  plaintiff  the  money 
received,  the  promise  being  implied,  if  not  stated. 


180  Keene  v.  Eldrikdge.  [47  Or. 

Pleading— Money  Received— Vabiance. 

4.  Under  an  allegation  of  money  received  for  plaintlfTs  account.  It  is  not  a  vari- 
ance to  show  that  plain  tiff  conveyed  certain  land  to  defendant,  who  was  to  sell  It 
and  pay  a  stated  debt,  retaining  an  agreed  sum  out  of  the  balance  for  plaintiff.  | 

From  Mariou :    George  H.  Burnett,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  an  action  by  A.  C.  Keene  against  Nancy  C.  Eld- 
riedge  for  money  had  and  received  to  plaintiff's  use.  The 
action  was  commenced  by  tiling  a  complaint  of  which  the 
following,  omitting  the  formal  parts,  is  a  copy : 

"First.  That  in  Marion  County,  Oregon,  on  or  about 
the  6th  day  of  October,  1904,  the  defendant  received  from 
James  Goffin,  Arthur  Goflfin,  Adolf  Goffin,  and  Yda  Goffin, 
as  agent  of  plaintiff,  the  sum  of  $399.48,  belonging  to  and 
on  account  of  plaintiff,  and  which  is  now  due. 

Second.  That  thereafter,  and  prior  to  the  bringing  of 
this  action,  the  plaintiff  demanded  payment  thereof  from 
the  defendant.  * 

Third.  That  the  defendant  has  not  paid  the  said  sum 
of  $399.48,  or  any  part  thereof,  and  refuses  to  pay  the 
same." 

—  concluding  with  a  prayer  for  judgment.  Without  inter- 
posing either  demurrer  or  motion  to  this  pleading,  the 
defendant  answered,  denying  each  allegation  of  the  com- 
plaint, and,  a  trial  being  had,  the  plaintiff  introduced 
his  testimony  and  rested,  whereupon  the  court  gave  a 
judgment  of  nonsuit  on  the  grounds  (l)that  plaintiff  had 
failed  to  prove  the  cause  of  action  set  out  in  the  complaint, 
(2)  that  there  was  a  variance  between  the  allegations  of 
such  pleading  and  of  the  proof,  and  (3)  that  no  case  had 
been  established,  because  the  complaint  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  and  plaintiff  ap- 
peals. Reversed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr.  George  Oreenwood  Bingham  and  Mr,  Peter  Henry 
D^Arcy. 


Oct.  1905.]  Keene  v.  Eldriedge.  181 

For  respondent  there  was  a  brief  over  the  name  of  Car- 
son <fc Cawwcm,  with  an  oral  argument  by  Mr.  A.M.Cannon, 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

1.  The  primary  question  to  be  determined  is  whether  or 
not  the  complaint  states  facts  sufficient  to  uphold  a  judg- 
ment, if  rendered  in  plaintiff's  favor.  When  the  sufficiency 
of  a  complaint  is  challenged  by  demurrer  or  motion,  it 
must  be  more  strictly  construed  against  the  plaintiff  than 
when  that  question  arises  on  the  admission  of  evidence, 
in  which  latter  case  all  intendments  in  favor  of  the  com- 
plaint are  to  be  invoked :  Patterson  v.  Patterson^  40  Or.  560 
(67  Pac.  664);  McCall  v.  Porter,  42  Or.  49  (71  Pac.  976); 
Carlyle  v.  Sloan,  44  Or.  357  (75  Pac.  217).  When  a  com- 
plaint  is  filed  and  a  copy  thereof  served,  the  defendant  is 
given  an  opportunity  to  test  its  sufficiency  by  interposing 
a  demurrer  or  motion,  but,  when  he  neglects  to  do  so  and 
answers  to  the  merits,  intending  to  question  the  adequacy 
of  the  pleading  at  the  trial,  by  objecting  to  the  admission  of 
testimony,  every  intendment  in  favor  of  the  averments  of 
fact  should  be  invoked  and  the  objections  summarily  over- 
ruled, unless  the  complaint  fails  to  state  facts  sufficient 
to  constitute  a  cause  of  action,  which  defect  is  never  waived 
nor  cured  by  verdict. 

2.  Considering  the  principal  inquiry  involved,  the  stat- 
ute provides  that  all  forms  of  pleading  in  actions  at  law  are 
abolished  (B.  &  C.  Corap.  §  64),  and  the  complaint  shall 
contain  a  plain  and  concise  statement  of  the  facts  constitut- 
ing the  cause  of  action,  without  unnecessary  repetition : 
B.  &  C.  Comp.  §  67,  subd.  2.  In  Buchanan  v.  Beck,  15  Or. 
563  (16  Pac.  422),  Mr.  Justice  Thayer,  in  speaking  of  the 
sufficiency  of  a  complaint,  says:  *'It  has  been  held  in  a 
great  majority  of  the  states  that  the  mode  of  pleading  here- 
tofore known  as*common  counts'  may  still  be  employed, 
notwithstanding  the  adoption   of  the   reformed  system. 


182  Keene  v.  Eldribdgb.  [47  Or. 

In  this  State,  however,  the  right  is  denied.  This  court,  in 
Bowen  v.  Emmerson,  3  Or.  452,  held  that  the  use  of  the 
general  counts  in  assumpsit  was  wholly  inconsistent  with 
the  theory  of  the  Civil  Code.  The  principle  of  that  de- 
cision would  not  prevent  a  plaintiff  from  maintaining  an 
action  for  money  had  and  received  for  his  use,  provided 
he  allege  facts  in  his  complaint  sufficient  to  show  that  the 
money  paid  to  the  defendant  justly  and  equitably  belonged 
to  the  plaintiff."  In  Waite  v.  Willis,  42  Or.  288  (70  Pac. 
1034),  it  was  held,  following  the  rule  announced  in  Stew- 
art  V.  Phy,  11  Or.  335  (3  Pac.  443),  that  a  complaint  alleg- 
ing  that  the  defendant  received  a  certain  sum  of  money 
for  plaintiff's  use  and  benefit  was  sufficient,  thus  appar- 
ently enlarging  the  rule  theretofore  announced.  In  decid- 
ing that  case,  Mr.  Justice  Wolverton  says:  "Formerly  it 
was  essential,  in  a  count  for  money  had  and  received,  to 
employ  the  fiction  of  a  promise,  but  this  is  no  longer  re- 
quired under  the  Code.  The  facts  should  now  be  stated  out 
of  which  the  cause  of  action  arose,  and  the  law  will  imply 
the  promise."  It  will  be  remembered  that  the  complaint 
in  the  case  at  bar  does  not  aver  that  the  money  received 
by  the  defendant  was  for  plaintiff's  use,  but,  in  the  absence 
of  a  motion  to  make  the  pleading  more  definite  and  cer- 
tain, we  believe  that  the  averment  that  defendant,  as  plain- 
tiff's agent,  received  from  the  persons  named  the  money 
in  question,  belonging  to  and  on  account  of  plaintiff,  states 
facts  sufficient  to  constitute  a  cause  of  action,  and  that  it 
would  support  a  judgment  based  thereon. 

3.  An  examination  of  the  bill  of  exceptions  shows  that, 
because  the  complaint  did  not  contain  an  allegation  of  the 
defendant's  promise  to  repay  the  money  she  received,  the 
court,  over  plaintiff's  exception,  sustained  objections  to  the 
introduction. of  testimony  offered  by  him  tending  to  show 
that  the  Goffins  paid  the  money  in  question  to  the  defend- 
ant at  plaintiff's  request.    The  promise  to  pay  the  money 


Oct.  1905.J  Kebne  V,  Eldriedge.  183 

so  received  to  plaintiff  was  reasonably  implied  from  the 
averment  of  its  receipt  under  the  circumstances  alleged  in 
the  complaint:  (  Waite  v.  Willis,  42  Or.  288,  70  Pac.  1034), 
and,  this  being  so,  an  error  was  committed  in  sustaining 
objections  to  the  testimony  offered,  tending  **to  show  that 
the  money  paid  to  the  defendant  justly  and  equitably  be- 
longed to  the  plaintiff":  Buchanan  v.  Beck,  15  Or.  563  (16 
Pac.  422). 

4.  The  bill  of  exceptions  discloses  that,  when  the  case 
was  called  for  trial,  plaintiff's  counsel  stated  to  the  jury : 

** We  expect  to  show  that  the  plaintiff  and  defendant  are 
brother  and  sister ;  that  the  father  of  the  plaintiff  and  de- 
fendant, at  the  time  of  his  death,  left  a  will,  by  which  he 
devised  to  the  plaintiff  and  one  W.  H.  Keene  a  farm,  but 
required  the  plaintiff  and  W.  H.  Keene  to  pay  certain  in- 
debtedness and  a  certain  sum  of  money  to  the  defendant 
and  to  Mrs.  Harding,  a  sister  of  the  plaintiff  and  defend- 
ant; that  money  was  borrowed  of  Mrs.  Harding  to  pay  the 
indebtedness  of  the  estate,  and  it  was  agreed  between  plain- 
tiff and  defendant  and  W.  H.  Keene  that  the  lands  should 
be  mortgaged  to  Mrs.  Harding,  and  that  after  the  mortgage 
was  given  the  plaintiff  and  W.  H.  Keene  would  convey  the 
farm  to  defendant,  who  should  sell  the  same  and  pay  the 
amount  due  Mrs.  Harding,  and  to  the  defendant  the  amount 
due  her,  and  the  surplus  should  be  paid,  one-half  to  W.  H. 
Keene  and  one-half  to  A.  C.  Keene,  this  plaintiff ;  that  the 
mortgage  was  delivered  to  Mrs.  Harding  as  agreed  upon, 
and  that  the  deed  was  delivered  to  defendant  as  agreed 
upon  ;  that  a  purchaser  was  found  for  the  lands  at  a  sum 
exceeding  the  amount  due  upon  the  mortgage  and  due  to 
the  defendant  of  $798.96 ;  that  a  deed  was  made  to  the  land 
by  Mrs.  Eldridge  as  agreed  upon,  and  that  she  received  from 
the  persons  named  in  the  complaint  the  sum  of  1399.49, 
money  due  to  the  plaintiff  as  his  share  of  the  farm  in  excess 
of  his  indebtedness,  and  that  this  was  the  money  sought 
to  be  recovered'in  this  action.'* 

The  defendant's  counsel,  based  on  the  foregoing  state- 
ment, moved  the  court  to  grant  a  judgment  of  nonsuit,  on 


184  Christbnson  v.  Simmons.  [47  Or. 

the  ground  that  the  cause  of  action  thus  outlined  was  not 
set  out  in  the  complaint.  This  motion  was  at  first  denied, 
but  upon  a  renewal  thereof  was  granted,  and  it  is  insisted 
by  defendant's  counsel  that  the  judgment  rendered  ought 
not  to  be  disturbed,  because  it  appears  from  the  statement 
of  plaintiff's  counsel  that  the  money  in  question  was  the 
property  of  the  defendant.  It  would  appear  from  such 
statement  that  the  money  received  by  the  defendant  was 
derived  from  the  sale  of  a  farm  which  was  conveyed  to  her 
by  the  plaintiff  and  his  brother  for  the  purposes  stated, 
which,  in  our  opinion,  are  not  so  variant  to  the  facts  al- 
leged in  the  complaint  as  to  defeat  the  action. 

The  judgment  of  the  court  below  seems  to  have  been 
based  on  the  alleged  insuflBciency  of  the  complaint,  but, 
deeming  that  pleading,  in  the  absence  of  a  motion  to  make 
it  more  definite  and  certain,  adequate,  the  judgment  is 
reversed,  and  the  cause  remanded  for  a  new  trial. 

Reversed. 


Argued  4  October,  decided  28  October,  1906. 
CHBI8TEN80N  v.  SIMMONS. 

82  Pac.  805. 

Boundaries— Relative  Importance  of  Calls  in  Surveys. 

1.  Calls  in  a  survey  for  natural  objects  or  marked  lines  and  corners  prevail 
over  calls  for  courses  and  distances,  If  the  calls  of  the  former  character  are 
clearly  established ;  but  if  the  evidence  leads  to  the  conclusion  that  the  mistake 
Is  In  the  calls  for  natural  or  artificial  objects,  and  not  In  those  for  courses  and 
distances,  the  rule  is  the  reverse. 

Boundaries— Estoppel  by  Participation  in  Location. 

2.  Where  a  highway  as  laid  out  divided  two  tracts  of  land,  and  plalntifT 
assisted  the  owner  of  one  of  them  in  locating  his  fence  along  the  highway,  and 
worked  the  road  on  one  or  two  occasions,  and  plaintiff  at  such  times  had  a  con- 
tract for  the  purchase  of  the  other  tract,  but  it  was  surrendered,  and  he  did  not 
purchase  it  until  after  such  location  and  working,  be  was  not  estopped  to  Insist 
that  the  fence  In  question  was  In  the  highway. 

From  Marion :  William  Galloway,  Ju^ge. 

This  is  a  suit  for  an  injunction  by  M.  Christenson 
against  Grover  Simmons,  resulting  in  a  decree  as  prayed 
for,  from  which  defendant  appeals.  Affirmed. 


Oct.  1905.]  Christenson  v,  Simmons.  185 

FoF  appellant  there  was  a  brief  over  the  names  of  John 
H,  McNary,  District  Attorney,  Myron  Edwin  Pogue,  and 
Charles  Lima  McNary,  with  oral  arguments  by  Mr,  Pogue 
and  Mr.  C.  L,  McNary. 

For  respondent  there  was  a  brief  and  an  oral  argument 
by  Mr,  Frank  Holmes. 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

The  defendant  is  a  road  supervisor,  and  the  appellant 
here  from  a  decree  of  the  circuit  court  enjoining  him 
from  removing  a  fence  constructed  by  plaintiff.  The 
question  presented  for  our  determination  is  mainly  one 
of  fact,  which  is  whether  the  plaintiff's  fence  was  con- 
structed and  is  being  maintained  along  and  within  a 
public  road  of  the  county.  The  road  in  question  was  laid 
out  and  established  by  the  county  court  of  Marion  County 
in  June,  1879,  being  30  feet  in  width.  The  location  and 
route,  as  shown  by  the  field  notes  and  plat  of  Seth  R. 
Hammer,  the  surveyor,  are  as  follows : 

"Beginning  at  the  corner  of  Anderegg  and  Beer's  land 
on  the  south  side  of  the  Brooks  and  Howell  prairie  road 
at  the  east  end  of  the  bridge  across  Little  Pudding  River, 
from  which  a  W.  fir  tree  20  inches  in  diameter  bears  S. 
50°  W.  32  links,  and  a  Red  fir  30  inches  in  diameter  bears 
N.  20°  E.  41  links;  thence  south  10.29  chains  to  J.  A. 
Hughes'  N.  E.  corner ;  thence  south  44.61  chains  to  J.  A. 
Hughes'  S.  E.  corner;  thence  east  12.14  chains ;  thence 
south  2.00  chains  to  George  McCorkle's  N.  W.  corner; 
thence  south  10.96  chains  set  one  mile  post,"  etc. 

The  plaintiff  is  the  owner  of  the  land  on  the  north  of 
the  road  and  bordering  upon  it  where  its  course  is  east 
from  J.  A.  Hughes'  southeast  corner,  and  one  Fred  Hazel- 
backer  is  the  owner  on  the  south.  The  center  line  of  the 
road  should  be  the  dividing  line  between  their  respective 
premises,  and  the  dispute  had  its  origin  between  these 
parties.    In  1897  Hazelbacker  purchased  a  piece  of  school 


186  Christenson  v.  Simmons.  [47  Or. 

land  adjoining  his  premises  on  the  north,  which  extended 
them  to  the  line  in  question.  Desiring  to  inclose  this 
piece  with  the  rest  he  constructed  a  fence  on  the  north, 
endeavoring,  as  he  testifies,  to  leave  without  it  more  than 
sufficient  space  for  one  half  the  road.  He  had  no  survey 
made  at  the  time  but  depended,  as  he.  asserts,  upon  the 
location  of  a  stake  at  the  east  angle  of  the  road  where  it 
turns  south,  thence  running  to  McCorkle's  northwest 
corner. 

Duncan  Ross,  who  was  at  the  time  road  supervisor, 
pointed  out  the  stake.  Ross  testifies  as  to  this :  **We  found 
a  stake  by  the  hazel  bush.  We  cut  away  some  of  the  brush 
to  get  in  to  it.  The  stake  was  sticking  up  that  far,  marked 
on  two  sides,  so  with  my  permission  he  took  the  stake  up 
and  put  a  rock  in  there."  Antedating  this,  for  the  purpose 
of  identifying  the  locality  of  the  road  as  established  upon 
the  ground,  and  the  stake  alluded  to,  the  defendant  called 
J.  L.  Wood,  who  testifies  that  he  helped  cut  out  the  road 
in  about  the  year  1878  or  1879;  *Hhat  the  marks  and 
everything  through  there,  blazes  and  everything,  showed 
that  it  had  been  surveyed  before";  and  that  a  stake  then 
stood  at  each  angle  of  the  road,  one  next  to  Joe  Hughes' 
corner  on  the  west  end,  and  one  at  the  angle  on  the  east 
end ;  that  the  one  at  the  east  stood  a  little  north  and  a 
little  west  (8  or  10  feet)  of  an  oak,  and  just  north  of  the 
center  of  the  road  before  the  plaintiff  put  his  fence  there. 
Describing  the  stake,  witness  further  says :  "I  think.it  was 
an  oak  stake  and  square  at  the  top,"  but  '4t  might  have  been 
a  willow."  The  last  time  he  remembers  having  seen  the 
stake  was  in  1887,  as  also  the  one  at  the  west  end.  He  fur- 
ther says  that  there  were  roads  through  there  before  any 
was  laid  out. 

Willard  Jefferson  testifies  that  he  acted  as  chain  bearer 
when  the  road  was  surveyed  by  Hammer,  and  that  a  stake 
was  driven  at  both  the  west  and  east  angle  of  the  road; 


Oct.  1905,]  Christknson  v.  Simmons.  187 

that  the  one  at  the  west  would  n6t  be  a  great  ways  from  the 
corner  recently  established  by  Herrick ;  that  there  were 
two  witness  trees  there  at  the  time  the  road  was  surveyed, 
one  being  a.fir,  the  stump  of  which  remains  there  now,  and 
the  other  a  pine  that  was  a  little  southeast  of  the  corner; 
that  on  the  east  end  there  were  two  witness  trees,  one  a 
small  oak  that  stood  northwest  of  the  corner,  and  the  other 
was  situated  a  little  southeast,  but  that  at  the  present  time 
he  could  not  locate  the  position  of  the  stake  exactly ;  that 
he  might  vary  two  or  three  feet,  possibly  ten ;  that  the  stake 
had  surveyors'  marks  on  it ;  that  when  put  down  it  was 
green,  but  that  when  he  saw  it  last,  about  1890,  it  was  con- 
siderably rotten  ;  that  it  was  not  sufficiently  preserved  that 
he  could  swear  it  was  the  same  stake ;  that  if  he  would  see 
it  to-day  he  would  not  say  it  was  the  same ;  all  that  he  had 
to  go  by  were  the  surveyors'  marks, 

Fred  Hazelbacker  testified  that  a  stake  stood  in  the  hazel 
brush  marked  "R"  when  he  went  there  in  1887;  that  it 
was  taken  out  and  replaced  with  a  rock  in  1897,  there  being 
present  when  it  was  done  himself  and  his  brother  and 
Christenson,  who  assisted  in  the  matter,  and  his  hired 
man;  and  that  the  rock  remained  in  place  until  recently 
removed  by  some  one  whom  he  could  not  identify.  He 
further  testified  that  Christensen  assisted  him  in  making 
the  measurement  for  the  location  of  his  fence,  and  helped 
him  build  the  fence ;  the  same  being  constructed  21  feet 
north  of  the  center  of  the  road  as  indicated  by  the  stake. 
This  testimony  of  Hazelbacker  is  corroborated  by  his 
brother. 

On  the  other  hand,  the  plaintiff  Christenson  testifies 
that  he  was  first  acquainted  with  the  road  in  1898;  that 
he  bought  the  land  north  of  the  road  in  1902,  and  has 
been  in  possession  since  then  as  owner;  that  he  pre- 
viously had  a  contract  for  it  and  was  in  possession  in 


188  Christknson  v.  Simmons.  [47  Or. 

pursuance  thereof,  but  gave  it  up.    As  it  respects  the 
stake,  he  continues: 

^'I  was  there  to  see  for  a  witness,  and  there  was  a  stake 
standing  in  that  corner  here  where  he  put  the  rock  down ; 
that  stake  was  lost;  there  was  a  big  brush  pile  piled  up 
there  for  about  15  or  20  feet  along,  quite  high  pile,  it  was 
about  three  feet  long ;  it  was  lost  in  the  brush  pile,  a  wil- 
low stake ;  Hazelbacker  held  the  stake  and  Fred  Hazel- 
backer  cut  out  the  brush  and  cleaned  it  out ;  then  he  took 
the  shovel  and  dug  the  dirt  around  the  stake  for  about  20 
inches  wide,  then  they  put  that  down  that  deep  apd  the 
stick  was  all  that  was  down  in  the  ground;  then  they 
threw  down  this  dirt  down  six  inches.  I  said  there  is 
something  wrong ;  I  said  that  stake  odght  never  be  in  the 
ground  ;  I  drove  it  12  or  14  inches  and  still  saw  no  mark 
of  the  stake;  and  Hazelbacker  said  that  don't  make  any 
difference  anyway,  this  here  is  only  temporary,  and  it  can 
be  taken  out  by  the  surveyors;  I  said  that  stake  cannot 
be  within  100  feet  of  the  right  place ;  that  was  all  that  was 
said  then  ;  they  dropped  down  the  rock." 

B.  B.  Herrick,  county  surveyor,  who  appears  to  have  been 
sent  out  by  the  county  court  for  the  purpose  of  locating  the 
piece  of  road  in  question,  if  possible,  testifies  that  he  made 
a  survey  of  that  part  of  the  road  ;  that  he  ran  that  far  from 
the  beginning  point;  that  he  found  the  point  described  in 
the  field  notes  of  Mr.  Hammer  as  J.  A.  Hughes*  southeast 
corner,  and  also  the  McCorkle  northwest  corner;  that  he 
found  an  iron  rod  near  the  southeast  corner  of  J.  A.  Hughes' 
land  driven  into  the  ground  ;  that  it  was  located  a  few  inches 
—  8  or  10  probably  —  south  of  where  he  located  the  corner 
by  taking  careful  measurements  from  a  witness  tree;  that 
his  estimates  were  based  on  the  stump  of  the  government 
witness  tree  that  stood  to  the  northeast ;  that  the  other  two 
witness  trees  were  gone ;  that  the  road  follows  the  south 
boundary  of  Elijah  Woodward's  donation  land  claim. 

W.  J.  Culver  testifies  that,  when  the  plaintiff  purchased 
his  land,  he  (witness)  made  a  survey  of  it ;  that  he  located 


Oct.  1905.]  Christenson  v.  Simmons.  189 

the  southwest  corner  of  the  Woodward  donation  land 
claim ;  that  he  found  a  stump  of  a  fir  tree  which  stood 
northeast  of  the  corner,  which  he  supposed  was  a  witness 
tree;  and  that  he  marked  the  corner  with  an  iron  rod 
driven  in  the  ground. 

Aside  from  this  testimony  there  is  much  that  was  intro- 
duced, bearing  upon  the  location  of  the  road  as  actually 
used  by  the  public.  But,  prior  to  1897,  such  user  was  so 
variable  that  it  is  wholly  unreliable  upon  which  to  base  a 
road  by  prescriptive  right.  The  testimony  can  only  serve, 
if  for  any  purpose,  to  assist  in  determining  the  true  line 
of  survey.  The  facts  seem  to  be  that,  until  Hazelbacker 
built  his  fence,  there  was  no  certain  or  definite  line  of 
travel.  Sometimes  it  would  run  more  nearly  where  the 
plaintiff  has  constructed  his  fence  and  sometimes  upon 
the  other  side  where  Hazelbacker  has  his,  and  for  much 
of  the  time  it  was  variable,  crossing  from  one  side  to  the 
other,  so  that  there  could  be  no  establishment  of  the  road 
in  the  present  case  by  prescriptive  use.  We  are  therefore 
confined  to  a  determination  of  the  true  location  of  the 
county  road  as  established  by  the  county  court.  The  field 
notes  and  plat  of  the  road  as  returned  by  Hammer  do  not 
show  that  any  stake  or  monument  was  erected  by  him  at 
the  east  end  of  the  section  of  road  in  dispute.  Hughes' 
southeast  corner  was  established  by  the  general  govern- 
ment, and  there  is  no  dispute  as  to  the  exact  locality  of 
McCorkle's  northwest  corner.  Both  Culver  and  Herrick, 
by  their  recent  surveys  and  measurements,  ascertained 
and  reestablished  quite  satisfactorily  the  Hughes  corner, 
which  should  be  identical  with  the  Woodward  southwest 
corner.  True,  they  disagree  by  8  or  10  inches,  but  both 
resorted  to  the  same  mode  of  establishing  it — that  of 
measuring  from  a  government  witness  tree,  the  stump  of 
which  still  remained.  We  should  think,  therefore,  that 
their  ascertainment  of  this  corner  is  as  nearly  accurate  as 


190  Christenson  v.  Simmons.  [47  Or. 

could  be  under  the  present  conditions.  At  any  rate  it  can- 
not be  far  wrong,  and  there  could  be  no  such  a  discrepancy 
as  21  or  22  feet  as  claimed  by  the  defendant.  This  being 
established,  the  course  of  the  road  is  thence  east  the  dis- 
tance 12.14  chains,  thence  south  2  chains  to  McCorkle's 
northwest  corner.  Herrick^s  survey  shows  the  distance 
east  to  a  point  2  chains  south  of  the  McCorkle  corner  to 
be  11.83  chains  only,  and  thus  there  is  a  discrepancy  in 
measurement. 

The  evidence  also  as  to  the  existence  and  position  of  a 
stake  at  the  east  end  is  strong,  and,  were  it  not  for  the 
conflicting  testimony  of  the  surveyors,  would  be  very  con- 
vincing. The  witnesses  do  not  entirely  agree  among  them- 
selves as  to  the  description  of  the  stake,  one  saying  it  was 
an  oak,  but  he  was  not  certain  and  admits  that  it  might 
have  been  a  willow,  that  it  was  square  at  the  top,  another, 
that  it  was  marked  on  both  sides,  and  another,  that  it  had 
the  surveyor's  marks  upon  it,  namely,  the  letter  **K";  but 
Christenson  says  the  stake  he  saw  was  a  willow  and  that 
he  did  not  see  any  marks  upon  it.  Then  again,  there  is 
some  disagreement  as  to  the  exact  locality.  Wood  could 
not  place  it,  admitting  that  he  might  be  mistaken  as  much 
as  10  feet.  This  witness  further  indicates  that  there  were 
witn,ess  trees  from  which  it  was  established.  In  this  he 
is  probably  mistaken,  as  Hammer's  survey  shows  no  such 
witness  trees,  and  there  was  no  government  monument 
established  at  that  point,  so  that  it  is  more  than  likely 
that  the  witness  trees  never  existed.  It  is  more  likely 
that  a  stake  was  put  down  in  that  vicinity  marked  "R," 
because  the  road  turns  a  right  angle  at  the  point  surveyed 
by  Hammer  ;  but  his  field. notes  do  not  even  show  that.  It 
is  natural  that  they  should  show  it  if  one  was  established. 
Another  feature  about  the  monument  is  that,  when  Jeffer- 
son saw  it  in  about  1890  it  w-as  considerably  rotten,  not 
suflSciently  preserved  that  he  could  identify  it  positively. 


Oct.  1905.]  Christenson  v,  Simmons.  191 

and  that  all  he  had  to  go  by  were  the  surveyors'  marks. 
If  the  stake  was  an  oak  one,  it  would  last  much  longer 
than  if  it  was  a  willow.  If  the  latter,  it  could  scarcely  have 
remained  sound  enough  to  have  been  driven  in  the  ground. 

Another  feature  that  militates  strongly  against  the  prob- 
ability of  the  monument  being  established  at  the  point 
claimed  by  the  witnesses  is  the  fact  that  the  true  corner 
should  be  but  two  chains  north  of  McCorkle's  northwest 
corner;  the  true  position  of  the  latter  point  being  con- 
ceded by  all.  It  is  hardly  possible  that  Hammer  could 
have  made  a  mistake  of  one  third  of  a  chain  in  measur- 
ing a  distance  of  but  two  chains.  There  can  be  no  mis- 
take as  to  the  distance  shown  in  the  field  notes,  nor  is  it 
scarcely  possible  that  there  could  have  been  such  a  varia- 
tion from  the  true  east  course  in  running  12.14  chains,  a 
little  over  one  eighth  of  a  mile,  as  to  make  the  difference 
of  22  feet  at  the  west  end,  so  that  the  problem  is  reduced 
to  the  result  that,  either  the  two  surveyors  are  wrong  in 
their  location  of  the  monument  at  the  west  end  of  this 
section  of  the  county  road,  or  the  defendant  and  his  wit- 
nesses are  mistaken  as  to  the  establishment  and  location 
by  Hammer  of  the  monument  claimed  by  them  at  the 
east  end. 

1.  The  ascertainment  of  the  true  position  of  either  mon- 
ument, if  established,  would  afford  ample  data  by  which  to 
trace  the  location  of  the  road  by  course  and  distance.  It  is 
a  rule  of  law  that,  where  there  is  a  conflict  or  disagreement 
between  courses  and  distances  on  the  one  hand,  and  lines 
and  monuments  on  the  other,  the  latter  will  control.  In 
other  words,  as  stated  in  the  headnote  to  Johnson  v.  Arch- 
ibald, 78  Tex.  96  (14  S.  W.  266,  22  Am.  St.  Rep.  27). 
**Calls  in  a  survey  for  natural  objects  or  marked  lines  and 
corners  prevail  over  calls  for  courses  and  distances."  This 
must  be  taken  with  a  grain  of  qualification  —  that  calls  of 
the  former  character  must  be  clearly  and  definitely  estab- 


192  Christknson  v.  Simmons.  [47  Or. 

lished,  and  when  so  established  the  rule  applies.  If,  how- 
ever, the  evidence  is  of  a  character  to  lead  to  the  conclu- 
sion that  the  mistake  is  in  the  calls  for  natural  or  artificial 
objects  and  not  in  those  for  courses  and  distances,  the  rule 
is  the  reverse:  King  v.  Brigham,  19  Or.  560  (25  Pac.  150); 
Albert  V.  Salem,  39  Or.  466  (65  Pac.  1068,  66  Pac.  233); 
Johnson  v,  Archibald,  78  Tex.  96  (22  Am.  St.  Rep.  27,  14 
S.  W.  266). 

Now  to  apply  the  rule.  The  courses,  as  run  by  Her- 
rick  in  his  endeavor  to  trace  the  Hammer  survey,  dis- 
agree ^^/loo  of  a  chain  in  the  call  thence  east  from  Hughes' 
southeast  corner,  but  as  to  the  succeeding  call  it  agrees 
perfectly.  If  we  should  adopt  the  defendantls  contention, 
there  would  be  a  disagreement  in  the  call  "thence  south 
2.00  chains  to  McCorkle's  N.  W.  corner"  by  21  feet  or 
more,  and  the  preceding  call  for  the  course  would  mani- 
festly not  conform  to  the  original  survey,  for  Jefferson 
testifies  that  there  was  a  stake  driven  down  when  Ham- 
mer made  his  survey  at  the  west  end  or  angle  not  a  great 
ways  from  where  Herrick  recently  established  the  corner. 
He  further  says  that  there  were  two  witness  trees  standing 
there  at  the  time  Hammer  surveyed  the  road ;  one  of 
them  being  "this  fir  stump  that  remains  there  now,"  and 
the  other  a  pine  that  stood  southeast  of  the  corner,  just  a 
little,  thus  identifying  the  very  monument  from  which 
Herrick  was  enabled  to  reestablish  accurately  the  Hughes 
corner.  If  such  is  the  true  position  of  the  stake  set  at  the 
west  angle,  an  east  course  would  run  to  the  north  of  the 
alleged  east  monument  by  more  than  21  feet.  So  that  as 
to  these  two  calls  for  courses  and  distances  there  would 
be  utter  disparagement,  if  defendant's  contention  as  to 
the  true  location  of  these  monuments  be  adopted  We  are 
strongly  impressed,  after  a  careful  consideration  of  all  the 
testimony  in  the  case,  that  the  testimony  of  Culver  and 
Herrick  as  to  the  true  position  of  the  Hughes  southeast 


\ 


Nov.  1905.]  LivESLEY  V.  Johnston.  193 

corner  is  much  more  reliable  and  satisfactory  than  the 
testimony  of  defendant's  witnesses  touching  that  of  the 
alleged  monument  at  the  east  angle.  Taking  the  reestab- 
lished corner  as  the  true  one,  the  rest  is  satisfactorily 
solved,  except  there  is  a  slight  discrepancy  in  distance  in 
the  east  course,  and  this  is  more  readily  accounted  for  than 
the  discrepancies  that  would  appear  if  defendant's  theory 
were  adopted.  We  conclude,  therefore,  that  the  Herrick 
survey  correctly  retraced  the  Hammer  survey,  and  that  it 
should  be  adopted  in  ascertaining  the  true  location  of  the 
portion  of  the  road  in  question. 

2.  It  is  further  urged  that  plaintiff  should  be  estopped 
to  claim  that  the  road  was  located  elsewhere  than  as 
claimed' by  defendant,  because  he  assisted  Hazelbacker  to 
locate  his  fence  and  had  worked  the  road  to  the  north  of 
it  on  one  or  two  occasions.  However,  at  neither  of  the 
dates  referred  to  was  plaintiff  the  owner  of  the  land  border- 
ing the  road  on  the  north.  He  probably  had  a  contract 
for  the  purchase  of  it,  but  it  was  surrendered  ;  and  plain- 
tiff did  not  purchase  until  1902,  so  that  his  acts  in  the 
respect  noted  could  not  operate  to  estop  him  from  insisting 
that  the  road  was  located  differently. 

The  decree  of  the  circuit  court  will  therefore  be  affirmed, 
and  it  is  so  ordered.  Affirmed. 


Decided  3  November,  1905. 
LIVESLEY  V,  JOHNSTON. 

82  Pivc.  854. 

Appeal  — Recalling  and  Correcting  Mandate.* 

1.  The  supreme  court  has  power,  at  any  time  during  the  terra  at  which  an 
appeal  was  disposed  of,  or  to  which  supplemental  matters  connected  with  the 
appeal  may  have  been  continued,  to  recall  the  mandate  because  inadvertently  or 
Inaccurately  Issued :  A  h  Lep  v.  Oong  Choy,  18  Or.  -lai,  430,  and  Morrell  v.  Miller; 28 
Or.  354,870,  disting^uishcd  on  this  point,  and  State  v.  Pennoyer,  205,  215,  approved. 


♦Note.— See  notes  in  24  Am.  St.  Rep.  fll5,  39  Am.  St.  Rep.  335,  and  44  Am.  St. 
Rep.  212,  on  Power  to  Amend  Records  and  When  Amendment  May  be  Made. 

—  Reporter. 
17  Ob. 18 


194  LivESLEY  V.  Johnston.  [47  Or. 

Appbai^  — Effectt  of  Undrtebmined  Matters  on  Jurisdiction. 

2.  A  motion  or  other  proper  suggestion  to  a  court  serves  to  continue  the  Juris- 
diction of  the  court  over  the  matter  referred  to  until  it  is  disposed  of,  though  it  be 
not  until  a  subsequent  term. 

Recalling  Mandate  Issued  on  Mistake  of  Fact. 

3.  Where  appellant's  counsel  was  led  to  sign  a  stipulation  for  the  dismissal  of 
an  appeal  as  to  one  of  the  parties  on  the  latter's  false  statement  that  he  had  settled 
all  matters  with  appellant,  such  stipulation  was  based  on  a  mistake  of  fact,  en- 
titling appellant  to  repudiate  the  same  and  obtain  a  recall  of  the  mandate  dis- 
missing the  appeal. 

Motion  to  recall  a  mandate.        Mandate  Recalled. 

Mr.  A.  M,  Cannon  and  Mr,  Henry  Johnson  Bigger  for 
the  motion. 

Mr.  Woodson  Taylor  Slater  and  Mr,  Wirt  Minor,  contra. 

Per  Curiam.  This  is  a  motion  to  recall  a  mandate. 
T.  A.  Livesley  and  John  J.  Roberts,  partners  as  T.  A.  Lives- 
ley  &  Co.,  commenced  a  suit  against  John  Johnston,  Jr., 
and  Adolph  Wolf  and  Julius  Wolf,  partners  as  Adolph 
Wolf  &  Son,  and  the  Southern  Pacific  Co.,  a  corporation, 
to  compel  the  specific  performance  of  Johnston's  agree- 
ment to  deliver  to  them  20,000  pounds  of  hops  grown  in 
1903,  alleging  Johnston's  insolvency  as  a  ground  for  the 
equitable  relief  invoked.  A  temporary  injunction  was 
issued  to  restrain  the  defendants  from  disposing  of  the 
hops,  but  a  demurrer  to  the  complaint  was  sustained,  the 
injunction  dissolved  and  the  suit  dismissed.  The  plain- 
tiffs appealed  from  that  decree,  which  was  reversed,  the 
demurrer  overruled  and  the  cause  remanded :  Livesley  v. 
Johnston,  45  Or.  30  (106  Am.  St.  Rep.  647,  76  Pac.  946, 
65  L.  R,  A.  783).  In  the  mean  while  the  hops  grown  in 
1903  were  shipped  out  of  the  State  by  the  defendants,  and 
a  supplemental  complaint  was  filed,  alleging  this  fact  and 
praying  for  the  damages  sustained.  The  cause  was  tried 
on  the  amended  issues  and  plaintiffs  recovered  the  sum  of 
$2,500,  from  which  decree  the  defendants  appealed. 

At  the  time  that  decree  was  given  there  was  also  another 
decree  rendered  against  Johnston  in  a  suit  instituted  by 


Nov.  1905.]  LivESLEY  t;  Johnston.  195 

Livesley  &  Co.,  compelling  him  specifically  to  perform  his 
agreement  to  deliver  to  them  20,000  pounds  of  hops  grown 
in  1904.  After  the- findings  of  fact  had  been  madein  the 
former  suit,  but  before  the  decree  passed,  Johnston  settled 
the  latter  case  by  delivering  to  Livesley  &  Co.  the  hops 
decreed  them,  and  by  a  new  contract  further  agreed  an- 
nually to  deliver  to  them  20,000  pounds  of  hops  for  the 
years  1905  to  1907,  inclusive,  in  accordance  with  the  terms 
of  his  original  contract.  The  plaintiffs'  counsel,  consider- 
ing that  the  new  agreement  was  tantamount  to  a  settle- 
ment of  the  decree  in  the  case  at  bar,  so  far  as  Johnston 
was  concerned*,  informed  defendants'  counsel  that  in  con- 
sequence thereof  they  intended  to  move  to  dismiss  the 
appeal  herein  as  to  that  party.  The  defendants'  counsel 
thereafter  saw  Johnston,  who  stated  that  he  had  settled  all 
matters  with  Livesley  &  Co.,  and,  based  on  this  informa- 
tion, a  written  agreement  was  entered  into  that  the  appeal 
should  be  dismissed  as  to  Johnston,  but  it  was  not  stipu- 
lated therein  that  his  discharge  should  be  without  preju- 
dice to  any  of  the  other  parties.  The  stipulation  was  filed 
in  this  court  July  3,  1905,  and  three  days  thereafter  a 
decree  was  rendered  in  accordance  therewith,  and  against 
Johnston  and  the  sureties  on  the  undertaking  on  appeal, 
for  the  sum  of  $2,500,  and  the  costs  and  disbursements  of 
the  suit.  Based  on  this  decree,  a  mandate  was  issued  and 
sent  to  the  court  below,  where  defendants'  counsel  objected 
to  the  entry  thereof,  and  further  proceedings  thereon  were 
stayed  by  an  order  of  a  justice  of  this  court  until  the  mat- 
ter of  recalling  the  mandate  could  be  heard. 

1.  The  parties  appearing  pursuant  to  notice,  plaintiffs' 
counsel  insists  that  jurisdiction  of  the  cause,  so  far  as  it 
relates  to  Johnston,  was  lost  by  sending  down  the  mandate, 
and  that  this  court  is  powerless  to  recall  it.  In  Ah  Lep  v. 
Gong  Choy,  13  Or.  429  (11  Pac.  72),  it  is  intimated  that 
the  authority  to  recall  a  mandate  after  it  has  been  trans- 


196  LivESLEY  V,  Johnston.  [47  Or. 

milted  to  the  court  below  is  very  doubtful.  This  statement 
is  not  borne  out  by  the  weight  of  adjudged  cases  nor  con- 
sonant with  the  rule  prevailing  in  this  court,  where  the 
practice  has  been  to  recall  a  mandate  after  it  has  been 
received  in  the  court  below,  for  the  purpose  of  correcting 
an  error  or  irregularity  therein  or  an  inadvertence  in  issu- 
ing it:  State  v.Pennoyer,  26  Or.  205  (41  Pac.  1104).  In 
Morrell  v.  Miller,  28  Or.  354  (43  Pac.  490,  45  Pac.  246),  a 
doubt  is  expressed  as  to  the  right  of  this  court  to  recall  a 
mandate  after  the  expiration  of  the  term  at  which  the  judg- 
ment or  decree  is  given  upon  which  the  remittitur  is  based. 
In  California,  however,  it  is  held  that  when  an  order  dis- 
missing an  appeal  has  been  improvidently  granted,  predi- 
cated upon  a  false  suggestion  or  under  a  mistake  as  to  the 
facts,  the  appellate  court,  invoking  the  principle  that  its 
jurisdiction  cannot  be  divested  by  an  irregular  order,  will 
recall  a  mandate,  even  after  the  expiration  of  the  term  at 
which  the  order  was  made:  Rowland  v.  Kreyenhagen,  24 
Cal.  52;   Vance  v.  Pena,  36  CaL  328. 

2.  In  the  case  at  bar  it  is  not  necessary  to  invoke  the 
rule  prevailing  in  the  sister  State,  which  is  stated  only  to 
illustrate  the  doctrine  applied  herein,  for  the  motion  to 
recall  tlie  mandate  was  filed  during  the  term  at  which  the 
decree  dismissing  the  appeal  as  to  Johnston  was  given,  to 
wit:  September  13,  1905,  and,  though  the  matter  was  not 
heard  until  the  next  month,  the  application  kept  the  pro- 
ceedings alive  and  carried  them  over  into  the  succeeding 
term :  Bronson  v.  Schulten,  104  U.  S.  410  (26  L.  Ed.  797); 
Deering  v.  Quivey,  26  Or.  556  (38  Pac.  710);  Henrichaen  v. 
Smith,29  Or.  475  (42  Pac.  486,  44  Pac.  496).  The  pre- 
ponderance of  judicial  authority  concedes  the  power  of  a 
court  of  record  at  any  time  during  the  term  at  which  a 
judgment  is  rendered  to  set  it  aside,  when  it  was  improv- 
idently given  in  consequence  of  a  false  suggestion  or  under 
a  mistake  of  facts.    It  necessarily  follows  from  this  prin- 


Nov.  1905.]  LivESLEY  V.  Johnston.  197 

ciple  that,  when  a  court  is  vested  with  authority  to  set 
aside  a  judgment  or  a  decree,  it  also  possesses,  as  an  inci- 
dent to  the  exercise  of  that  power,  the  inherent  right  to 
recall  any  writ  or  order  based  on  the  conchision  reached. 
3.  The  remaining  question  is  whether  the  stipulation 
entered  into  by  counsel  for  the  respective  parties  was  pro- 
cured under  such  circumstances  as  to  show  that  the  decree 
dismissing  the  appeal  as  to  Johnston  was  improvidently 
given.  The  affidavits  of  the  plaintiffs,  T.  A.  Livesley  and 
John  J.  Roberts,  respectively,  show  that  the  settlement 
effected  with  Johnston  did  not  relate  to  the  hops  which  he 
raised  in  1903,  the  right  to  the  possession  of  which  was  con- 
troverted in  this  suit.  Johnston  made  an  affidavit  for  each 
of  the  parties.  In  the  first,  which  was  prepared  for  the  de- 
fendants, he  states  that  he  met  one  of  appellants'  counsel 
in  Salem  after  the  appeal  in  this  case  had  been  taken,  and 
told  him  he  had  settled  all  matters  with  Livesley  &  Co.  In 
his  subsequent  affidavit,  made  at  plaintiffs'  request,  he 
denies-that  he  made  such  statement  to  appellants'  counsel. 
The  material  parts  of  Johnston's  later  affidavit  are  denied 
in  every  particular  by  the  affidavit  of  one  Thomas  Brown, 
a  notary  public,  who  administered  to  Johnston  the  oath  he 
took  in  preparing  the  prior  affidavit.  From  an  examina- 
tion of  the  affidavits  of  the  respective  parties  and  a  consid- 
eration of  all  the  circumstances  attending  the  execution  of 
the  stipulation  to  dismiss  the  appeal,  we  conclude  that  the 
statements  contained  in  Johnston's  later  affidavit,  that  con- 
trovert those  of  the  prior  declaration  under  oath,  are  false. 
Johnston  told  appellants'  counsel  that  he  had  settled  all 
matters  in  dispute  with  Liveslpy  &  Co.,  when  he  had  not 
done  so,  and  the  person  to  whom  such  false  statement  vvas 
made  evidently  relied  thereon,  when  he  subscribed  the 
name  of  the  firm  of  which  he  is  a  member  to  the  stipula- 
tion to  dismiss  the  appeal.  This  agreement  was  based  on 
a  mistake  of  fact  brought  about  by  Johnston's  false  state- 


198  Oregon  R.  Co.  v.  Umatilla  County.       [47  Or. 

ment,  and  for  this  reasou  the  stipulation  is  not  binding 
upon  the  parties  to  it. 

The  mandate  should  be  recalled,  and  when  received  in 
this  court,  the  decree  dismissing  the  appeal  as  to  Johnston 
set  aside ;  and  it  is  so  ordered.       Mandate  Recalled. 


Decided  8  July,  rehearing  denied  28  August,  1905. 
OREGON  RAILBOAD  CO.  i\  UMATILIiA  COUNTY. 

81  Pac.  852. 

Tax  Levy  — Need  of  Entering  Estimate  in  Journal. 

1.  It  is  not  necessary  to  the  validity  of  a  tax  levied  by  the  county  court  for 
county  purposes  that  the  estimate  made  by  the  court  shall  be  entered  at  length 
in  the  Journal.  The  requirements  of  Section  3084,  B.  A  C.  Comp.,  that  the  court 
"shall  estimate  the  amouut  of  money  to  be  raised,  •  »  and  apportion  such 
amount,  *  *  and  such  determination  shall  be  entered  at  large  in  its  records,'* 
are  directory  only,  and  not  Jurisdictional,  the  power  to  levy  the  tax  being  con- 
ferred by  Section  3085,  which  provides  that  at  a  stated  time  each  year  **  the  county 
court  •  ♦  shall  levy  a  tax,"  sufficient  to  defray  the  expenses  of  the  county. 

Tax  Levy  — Neckssity  of  Signing  Journal  Entry. 

2.  Where  the  Journal  entry  of  an  order  levying  a  tax  was  signed  by  the 
county  commissioners  before  any  attempt  was  made  by  the  county  to  enforce 
the  tax,  the  fact  that  it  was  not  so  signed  at  the  time  a  taxpayer  Instituted  a  writ 
of  review  to  set  aside  the  assessment  is  not  ground  for  annulling  the  same. 

Purpose  qf  Writ  of  Review. 

S.  A  statutory  wrltof  review  is  substantially  the  same  as  the  common-law  writ 
of  certiorari,  and  will  lie  when  an  inferior  court  or  tribunal  has  exceeded  Its 
Jurisdiction,  or  exercised  its  Judicial  functions  Illegally  or  contrary  to  the  course 
of  procedure  applicable  to  the  matters  before  it. 

Need  of  Certificate  on  Assessment  Roll. 

4.  Under  B.  A  C.  Comp.,  g  3057,  providing  that  the  assessor  shall  procure  fW>m 
the  clerk  a  blank  assessment  roll,  and  forth wllh  proceed  to  assess  all  the  taxable 
property  within  the  county,  and  return  such  roll  to  the  clerk  on  or  before  a  cer- 
tain time,  with  a  full  and  complete  assessment  of  such  taxable  property  entered 
therein,  an  as-sessment  roll  becomes  a  public  document  when  returned,  though 
not  formally  certified  or  identified  by  the  assessor,  no  certificate  being  required. 

A.SSES8MENT  ROLL  —  ABBREVIATED  NAMB  OF  TAXPAYER. 

5.  An  assessment  of  property  to  "  O.  R.  &  N.Co.,  The,"  is  a  sufficient  designa- 
tion of  the  owner,  where  such  owner  is  commonly  known  by  those  letters,  which 
are  an  abbreviation  of  its  full  name. 

AH.SESSMENT  ROLL— REPEATING  NAME  OF  TAXPAYER. 

«.  Where  a  taxpayer  Is  assessed  with  several  separate  pieces  of  property,  it  is 
not  necessary  that  the  name  be  entered  In  the  roll  opposite  each  description,  but 


July,  ;1905.]  Orbqon  R.  Co.  v.  Umatilla  County.         199 

it  is  enough  that  it  la  entered  at  the  commenoemeut  of  the  assessment,  followed 
by  the  list  of  the  property  under  the  proper  heads,  no  other  name  intervening. 

Assessment  of  Property  Under  Different  Municipalities. 

7.  Where  property  is  subject  to  assessment  in  different  districts  it  is  proper  to 
enter  the  name  of  each  on  the  roll  with  the  value  of  the  property  under  each 
name. 

Writ  of  Review  Discretionary. 

8.  The  writ  of  review  in  Oregon  is  substantially  the  common-law  remedy  of 
certiorari,  and,  like  that  remedy,  it  is  granted  or  refused  at  the  discretion  of  the 
court.  In  tax  matters  it  is  used  sparingly  and  not  to  set  aside  an  entire  levy  for 
irregularities  or  inequalities  of  assessment,  or  for  mere  insufficiency  of  descrip- 
tion, unless  such  description  is  void  on  its  fare. 

Sufficiency  of  Description  for  Taxation. 

9.  A  description  of  real  property  which  would  be  sufficient  in  a  deed  or  con- 
tract is  sufficient  in  a  tax  roll. 

Evidence  to  Identify  Property  Assessed. 

10.  Parol  evidence  is  admissible  in  aid  of  an  assessment  for  taxes  to  identify 
the  land  referred  to  or  to  aid  in  the  interpretation  of  the  record. 

Sufficiency  of  Description  for  Taxation  —  Review. 

11.  A  description  of  property  of  a  railroad  company  as  certain  lots  "Res. 
Add.  Pend.,  City  of  Pendleton,"  or  a  stated  number  of  miles  of  "  R.  R.  Bed,*'  or 
of  "  R.  of  W."  is  not  so  defective  as  to  be  void  on  the  face  of  the  record,  and 
therefore  on  a  proceeding  to  review  (he  act«  of  the  assessor  it  must  be  sustained. 

E^STOPPEL  to  Object  to  Description  on  Tax  Roll.. 

12.  A  taxpayer  who  has  appeared  before  an  equalization  board  and  applied 
for  a  reduction  in  the  valuation  of  his  property  cannot  afterward  claim  in  a  pro  - 
ceeding  against  the  county  that  the  description  of  such  property  is  defective. 

From  Umatilla:  William  R.  Ellis,  Judge. 

Statement  by  Mr.  Justice  Bkan. 

This  is  a  proceeding  by  writ  of  review  instituted  by  the 
Oregon  Railroad  &  Navigation  Co.  to  annul  and  declare 
void  an  order  of  the  county  court  of  Umatilla  County, 
levying  a  tax  upon  the  property  of  the  plaintiff,  as  shown 
by  the  assessment  roll  for  the  year  1903.  The  petition  for 
the  writ  contains  many  averments  which  are  denied  by 
the  answer  or  return,  but,  as  questions  of  fact  cannot  be 
tried  in  this  proceeding,  they  will  not  be  further  noticed. 
From  the  return  to  the  writ  it  appears  that  each  page  of 
the  assessment  roll  for  1903  was  divided  horizontally  into 
29  lines,  and  perpendicularly  into  34  columns.    At  the 


200  Oregon  R.  Co.  v.  Umatilla  County.     [47  Or. 

top  of  the  perpendicular  columns  were  printed  the  words  : 
**Name  of  Taxpayer";  "Description  of  Land";  ''Section"; 
"Township";  "Range";  "Name  of  Recorded  Town  or  City"; 
"No.  of  Miles  R.  R.  Bed^Te^p,  TeFg,  Etc.  Line";  "School 
Districts";  "Road  Districts";  "Name  of  Incorporated  City 
or  Town,"  and  the  like.  In  making  up  the  roll,  the  assessor 
subdivided,  described  and  valued  the  property  of  each  tax- 
payer with  reference  to  its  location  in  the  several  school 
and  road  districts  and  incorporated  towns  and  cities  of  the 
county,  and  therefore  the  assessment  of  the  plaintiff  cov- 
ered nine  or  ten  pages  of  the  roll.  At  the  upper  left-hand 
corner  of  each  page  of  such  assessment,  in  the  column 
headed  "Name  of  Taxpayer,"  are  written  the  letters  and 
word  "0.  R.  &  N.  Co.,  The,"  and  at  the  bottom  of  the  page 
the  abbreviated  word  "Contd,"  but  the  name  of  the  tax- 
payer is  not  entered  in  the  roll  opposite  the  description  of 
each  separate  parcel  of  property,  nor  is  it  indicated  by 
ditto  marks. 

Among  the  property  assessed  to  the  plaintiff  are  some 
22  lots  in  three  different  blocks,  in  what  is  entered  in 
the  column  headed  "Name  of  Recorded  Town  or  City"  as 
"Res.  Add.  Pend.,"  and  in  the  column  headed  "Name  of 
Incorporated  City  or  Town"  as  "Pendleton."  So  that  the 
description  as  it  appears  in  the  roll,  taking  one  lot  as  an 
example,  would  be  "Lot  6,  Block  3,  Res.  Add.  Pend.,  City 
of  Pendleton."  There  is  also  assessed  to  the  plaintiff  tel- 
egraph lines,  which  were  entered  in  the  column  headed 
"Description  of  Land"  as  "One  Wire  System  Telegraph" 
or  "Two  Wire  System  Telegraph,"  as  the  case  might  be, 
and  in  the  columns  headed  "Name  of  Incorporated  City 
or  Town,"  "Road  District,"  and  "School  Districts,"  are 
entered  the  names  of  the  towns  and  numbers  of  the  dis- 
tricts, and,  in  the  column  headed  "No.  of  Miles  R.  R.  Bed, 
TeFp,  Terg,  Etc.  Lines,"  figures  indicating  the  number  of 
miles  of  line  assessed,  so  that  the  description  would  be,** 


July,  1905.]  Oregon  R.  Co.  v,  Umatilla  County.         201 


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202  Oregon  R.  Co.  v,  Umatilla  County.       [47  Or. 

for  example,  **1.95  miles  of  one  wire  system  telegraph  in 
the  City  of  Pendleton  and  School  District  Number  16/' 
or,  **6  10-100  miles  of  two  wire  system  telegraph  in  School 
District  Number  5,  Road  District  18,  and  Town  of  Echo." 
Immediately  following  the  assessment  of  the  two  wire 
system  of  telegraph,  and  entered  in  the  column  headed 
^'Description  of  Land,"  are  the  initials  **R.  of  W.,"  and  in 
the  Qolumn  headed  "No.  of  Miles  R.  R.  Bed,  Tel'p,  TeFg, 
Etc.  Lines"  are  figures  evidently  intended  to  indicate  the 
number  of  miles  of  "R.  R.  Bed"  or  "R.  of  W."  in  the  va- 
rious road  and  school  districts  and  incorporated  cities  and 
towns  through  which  the  road  passes ;  so  that  the  descrip- 
tion would  read,  for  example,  "3.20  miles  of  R.R.  Bed  or 
R.  of  W.  in  road  district  number  50,  and  school  district 
number  17." 

After  the  roll  had  thus  been  made  up,  the  assessor  gave 
notice,  as  required  by  law,  of  the  time  and  place  of  meet- 
ing of  the  board  of  equalization,  and  the  plaintiff  appeared 
before  such  board  by  its  tax  agent,  and,  without  objecting 
in  any  way  to  the  listing  of  its  property  or  the  description 
thereof  on  the  assessment  roll,  or  claiming  that  it  had 
been  assessed  with  property  it  did  not  own,  filed  a  peti- 
tion for  the  correction  of  its  assessment,  first  by  reduc- 
ing the  valuation  of  "its  roadbed  and  track,  consisting  of 
166.40  miles,  from  $12,000  to  $5,500  per  mile,  or  from 
a  total  of  $1,996,800  to  $915,000";  second,  "the  depot 
grounds  in  the  City  of  Pendleton  from  the  assessment 
of  $21,000  to  $6,400";  and,  third,  "the  materials  and  sup- 
plies" for  repairs  and  improvements  to  the  road  from 
"$24,850  to  nothing."  This  petition  was  not  disposed  of 
by  the  board  of  equalization,  but  was  continued  for  the 
consideration  of  the  county  court,  and  such  court  denied 
the  reduction  in  the  valuation  of  the  roadbed,  but  reduced 
the  assessment  of  the  depot  grounds  in  Pendleton  to  $10,- 


July,  1905.]  Oregon  R.  Co.  v,  Umatilla  County.         203 

000,  and  eliminated  the  assessment  for  materials  and  sup- 
plies. 

At  the  January  term,  1904,  of  the  county  court,  the 
county  judge,  two  commissioners,  the  district  attorney, 
county  clerk  and  sheriff  all  being  present,  the  following 
order  was  made  and  entered  of  record : 

'■'  In  the  Matter  of  Tax  Levy  for  i9W. 

Now  on  this  day  the  summary  of  the  assessment  roll 
of  Umatilla  County,  Oregon,  showing  real  and  personal 
property  assessed  to  the  amount  of  $9,214,630.72,  and 

polls  assessed  to  amount  of  $ ,  the  above  being  the  net 

assessment  of  Umatilla  County,  upon  which  the  county 
court  of  said  county  is  authorized  by  law  to  make  the  levy 
of  1903,  it  is  Ordered  by  the  Court  that  a  tax  of  twenty 
(20)  mills  be  levied  upon  the  net  assessment  of  real  and 
personal  property  as  returned  by  the  assessor  for  the  year 
1903,  to  wit,  on  the  sum  of  $9,214,630.72,  to  be  divided 
as  follows:  For  state  and  county,  fifteen  and  eight  tenths 
mills  (15  8-10)  on  each  dollar's  worth  of  taxable  property, 
payable  in  coin  ;  for  school  purposes,  four  and  one  tenth 
mills  (4  1-10)  on  each  dollar's  worth  of  taxable  property, 
payable  in  coin;  and  for  road  purposes  one  tenth  of  one 
mill  (1-10)  on  each  dollar's  worth  of  taxable  property, 
payable  in  coin. 

It  is  Further  Ordered,  that  the  clerk  of  this  court  make 
a  transcript  of  said  assessment  and  extend  the  taxes  in 
accordance  with  the  levy  as  above  made  by  this  court, 
and  that  the  said  clerk  shall  attach  a  warrant  to  said  tran- 
script of  assessment  and  deliver  the  same  to  the  Sheriff 
of  Umatilla  County,  Oregon,  which  said  warrant  shall 
authorize  the  collection  of  said  taxes  for  the  year  1903 
by  said  sheriff,  and  the  said  sheriff  be  charged  with  the 
amount  of  said  levy  on  said  amount  of  $9,214,630.72,  at 
the  rate  of  twenty  (20)  mills  on  the  dollar,  and  $1,000  polls 
returned  in  said  assessment  for  the  year  1903,  by  the  said 
assessor." 

The  journal  containing  the  order  was  signed  by  the 

county  judge,  probably  at  the  time  it  was  entered,  but 

.  not  by  the  commissioners  until  after  this  proceeding  was 


204  Oregon  R.  Co.  v,  Umatilla  County.       [47  Or. 

instituted.  The  tax  thus  levied,  together  with  the  levies 
in  the  several  road  and  school  districts  and  incorporated 
cities  and  towns  of  the  county,  were  extended  by  the  county 
clerk,  and  on  February  15,  1904,  the  assessment  roll,  to- 
gether with  a  warrant  as  authorized  by  law  for  the  collec- 
tion of  the  taxes,  was  delivered  by  the  clerk  to  the  sheriff. 
In  May  following,  this  proceeding  was  instituted.  On  the 
final  hearing  before  the  circuit  court,  the  writ  was  sus- 
tained as  to  certain  property,  the  description  of  which  was 
so  indefinite  as  to  be  void  on  its  face,  but  denied  as  to  the 
remainder.  From  this  decision  plaintiff  appeals,  claiming 
that  the  order  of  the  county  court  levying  the  tax  is  void 
and  of  no  force  or  effect,  because  not  in  compliance  with 
the  statute,  and  that  the  roll  itself  was  insufficient  to  sus- 
tain such  order,  and  plaintiff's  property  was  not  properly 
described  therein.  Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  W.  W. 
Cotton,  Carter  &  Raley,  Siud  Arthur  Champlin  Spencer,  with 
an  oral  argument  by  Mr,  Spencer. 

For  respondent  there  was  a  brief  with  oral  arguments 
by  Mr,  Gilbert  Walter  Phelps,  District  Attorney,  and  Mr. 
James  A.  Fee, 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

1.  Sections  3084,  3085,  B.  &  C.  Comp.,  read  as  follows: 

Section  3084  :  *'The  county  court  of  each  county,  or  the 
board  of  commissioners  thereof,  shall,  at  its  term  in  Jan- 
uary in  each  year,  estimate  the  amount  of  m,oney  to  be 
raised  in  its  county  for  county  purposes,  and  apportion 
such  amount,  together  with  the  amount  of  state  and  school 
tax  required  by  law  to  be  raised  in  its  county,  according 
to  the  valuation  of  the  taxable  property  in  its  county  for 
the  year,  and  such  determination  shall  be  entered  at  large 
in  its  records." 

Section  3085:  "For  the  purpose  of  raising  revenues  for 
county  purposes  the  county' court  or  board  of  county  com- 
missioners for  each  county  in  the  State  shall,  at  its  Janu- 


July,  1905.]  Orbqon  R.  Co.  v.  Umatilla  County.         205 

ary  term  in  each  year,  levy  a  tax  upon  all  taxable  property 
in  its  county,  which  tax  shall  be  sufficient  in  its  amount 
to  defray  the  expenses  of  the  county." 

The  plaintiff  contends  that  by  these  sections  it  is  the 
duty  of  the  county  court,  before  levying  a  tax,  to  make  up 
an  itemized  estimate  of  the  several  amounts  of  money  to 
be  raised  for  county  purposes,  and  to  enter  such  estimate 
at  large  on  its  records,  that  such  entry  is  jurisdictional, 
and  a  failure  to  make  it  will  avoid  the  tax.  Before  levy- 
ing a  tax,  the  county  court  must  necessarily  make  an  esti- 
mate of  the  amount  of  money  to  be  raised  in  order  to 
determine  the  rate  of  taxation,  and  it  is  proper  that  such 
estimate  should  be  entered  of  record,  but  we  do  not  under- 
stand that  a  failure  in  that  respect  is  fatal  to  the  tax.  The 
statute  provides  that  after  the  estimate  is  made  the  county 
court  shall  apportion  the  aanount  thereof,  together  with 
the  state  and  county  taxes,  according  to  the  value  of  the 
taxable  property  in  the  county.  Such  determination  shall 
be  entered  at  large  on  the  record,  but  this  requirement  is 
not  jurisdictional,  nor  the  measure  of  the  power  of  the 
county  to  levy  the  tax.  The  authority  to  levy  a  tax  is 
derived  from  Section  3085,  and  not  from  the  one  provid- 
ing for  the  making  of  the  estimate  and  apportionment 
and  the  entry  of  such  determination  in  the  journal.  Sec- 
tion 3085  provides  that  the  county  court  shall,  at  its  Jan- 
uary term  in  each  year,  levy  a  tax  upon  all  the  taxable 
property  in  the  county,  sufficient  in  amount  to  defray  the 
expenses  of  the  county  ;  and,  while  this  levy  must  be  based 
on  the  estimate  required  to  be  made  under  the  previous 
section,  its  validity  is  not,  in  our  opinion,  dependent  on 
the  entry  of  the  estimate  in  the  journal. 

The  Louisiana  cases  (  Waggoner  v.  Maumus^  112  La.  229, 
36  South.  332,  and  Police  Jury  v.  Bouanchand,  51  La.  Ann. 
860,  25  South.  653,)  relied  upon  by  the  plaintiff  are  under 
a  statute  essentially  different  from  ours.    It  requires  the 


206  Oregon  R.  Co.  v,  Umatilla  County.       [47  Or. 

officers  authorized  to  levy  the  tax  to  cause  to  be  made  out 
and  published,  for  30  days  belore  their  meeting  to  fix  and 
determine  upon  the  amount  of  the  tax,  an  estimate  exhib- 
iting the  various  items  of  expenditure.  The  evident  object 
of  this  requirement  is  to  give  the  taxpayers  information  of 
the  amount  of  the  probable  tax  and  the  purposes  for  which 
it  is  proposed  to  be  raised,  and  an  opportunity  to  appear 
and  object  to  any  item  in  the  estimate  if  they  so  desired. 
We  have  no  such  provision.  The  estimate  is  required  to 
be  made  at  the  same  term  of  court  the  tax  is  kvied,  and 
there  is  no  requirement  for  its  publication  or  notice  to 
the  taxpayers  The  Illinois  cases  (Cleveland,  C,  C.  &  St. 
L.  R.  Co.  V.  People,  205  111.  582,  69  N.  E.  89,  and  People  v. 
Florville,  207  111.  81,  69  N.  E.  623),  involved  the  construc- 
tion of  city  charters,  and  are  not  applicable  here.  So  that 
we  think  the  tax  levy  as  made  was  within  the  power  of 
the  court  and  valid.  It  was  made  at  a  time  when  all  the 
members  of  the  court  were  present  and  participated. 

2.  The  fact — if  it  is  a  fact — that  the  journal  entry  of 
the  order  was  not  signed  by  the  county  commissioners  at 
the  time  this  proceeding  was  instituted  is  no  ground  for 
annulling  or  vacating  the  order.  It  was  signed  before  any 
attempt  was  made  by  the  county  to  enforce  the  tax  as 
against  the  plaintiff,  and  that  is  sufficient. 

3.  The  other  objections  made  by  the  plaintiff  all  go  to 
the  sufficiency  of  the  tax  roll  and  to  the  description  of 
plaintiff's  property  as  entered  therein.  It  is  doubtful 
whether  any  of  these  questions  can  properly  be  raised  in 
this  character  of  a  proceeding.  The  statutory  writ  of  re- 
view is  substantially  the  same  as  the  common-law  writ  of 
certiorari,  and  will  lie  when  an  inferior  court  or  tribunal 
has  exceeded  its  jurisdiction  or  has  exercised  its  judicial 
functions  illegally  and  contrary  to  the  course  of  procedure 
applicable  to  the  matter  before  it.  The  object  of  the  writ, 
says  this  court  in  Oarnsey  v.  County  Court,  33  Or.  201,  207 


July,  1905.]  Oregon  R.  Co.  v,  Umatilla  County.         207 

(54  Pac.  539,  1089),  **is  to  keep  inferior  courts  and  tribu- 
nals within  the  bounds  of  their  jurisdiction,  and  compel 
them  to  proceed  regularly  in  the  disposition  of  matters 
brought  before  them  for  determination;  but  it  cannot  be 
used  as  a  substitute  for  an  appeal;  nor  does  it  lie  to  correct 
mere  errors  in  the  exercise  of  rightful  jurisdiction,  or  to 
inquire  whether  the  rulings  of  the  inferior  tribunal  upon 
the  law  and  the  evidence,  and  in  the  application  of  the  law 
to  the  facts,  are  correct." 

4.  Now,  the  county  court  did  not  exceed  its  jurisdiction 
in  making  the  order  levying  the  tax,  nor  did  it  proceed 
illegally  in  so  doing.  It  is  invested  with  power  to  levy  the 
tax  by  statute.  It  had  before  it,  at  the  time  the  order  was 
made,  what  purported  to  be,  and  what  was  in  fact,  an  as- 
sessment roll,  regularly  made  up  by  the  county  assessor. 
It  is  true  the  roll  was  not  certified  to  by  the  assessor  or 
any  other  officer,  but  there  is  no  law  of  which  we  are  ad- 
vised, requiring  an  assessment  roll  to  be  so  certified.  The 
statute  provides  that  the  assessor  shall  procure  from  the 
clerk  a  blank  assessment  roll,  and  forthwith  proceed  to 
assess  all  the  taxable  property  within  his  county,  and  re- 
turn such  roll  to  the  clerk  on  or  before  a  certain  time, 
with  a  full  and  complete  assessment  of  such  taxable  prop- 
erty entered  therein:  B.  &  C.  Comp.  §  3057.  When  the 
roll  is  so  made  up  and  returned,  it  becomes  a  public  docu- 
ment, and  no  formal  certification  or  identification  is 
required  by  the  law.  The  county  court  necessarily  deter- 
mined, in  levying  the  tax,  that  the  roll  before  it  was 
sufficient  in  law  to  authorize  it  to  do  so.  It  was  in  the  ex- 
ercise of  a  rightful  jurisdiction,  and  it  is  doubtful  whether 
mere  errors  of  judgment  or  of  law  in  holding  the  assess- 
ment roll  sufficient  can  be  corrected  on  a  writ  of  review. 

5.  But,  however  this  may  be,  we  are  of  the  opinion  that 
the  objections  made  to  the  assessment  of  plaintiff^s  prop- 
erty are  not  sufficient  to  invalidate  the  entire  assessment. 


208  Oregon  R.  Co.  v.  Umatilla  County.       [47  Or. 

The  initials  and  word  "O.  R,  &  N.  Co.,  The,"  as  used  in  the 
assessment  roll,  are  a  sufficient  entry  of  the  name  of  the 
taxpayer.  The  plaintiff  is  commonly  known  by  such  ini- 
tials, and,  indeed,  it  appeared  in  th«  tax  proceedings  and 
so  signed  petitions  for  a  reduction  in  the  valuation  of  its 
property. 

6.  It  is  not  necessary  that  the  name  of  a  taxpayer  should 
be  entered  in  the  roll  opposite  the  assessment  of  each  sepa- 
rate piece  of  property.  It  is  enough  that  it  is  entered  at 
the  top  of  the  page,  or  the  commencement  of  the  assess- 
ment, and  there  is  a  list  of  property  under  appropriate 
heads,  following  such  name,  no  other  name  intervening. 

7.  Nor  does  the  fact  that  the  assessor  divided  up  the 
plaintiff's  property  and  assessed  it  with  reference  to  the 
several  road  and  school  districts  and  incorporated  cities 
and  towns  invalidate  the  assessment.  It  was  the  only  way 
the  property  could  be  assessed  so  that  the  levies  for  the 
several  road  and  school  districts  could  be  extended  on  the 
roll. 

8.  The  description  of  some  of  the  property  is  not  as 
definite  and  certain  as  it  should  be,  and  it  may  not  be 
sufficient  to  support  a  title  acquired  at  a  tax  sale,  but  this 
is  no  reason  why  the  entire  tax  should  be  set  aside  in  a 
a  proceeding  of  this  kind.  If  some  of  the  means  of  col- 
lecting the  tax  cannot  be  made  effective  because  of  an 
imperfect  description,  it  does  not  follow  that  the  entire 
assessment  will  be  declared  void  in  a  proceeding  by  cer- 
tiorari or  writ  of  review:  State  v.  Haight,  35  N.  J.  Law, 
178;  State  v.  Collector  of  Jersey  City,  24  N.  J.  Law,  108. 
The  writ  of  review  under  our  statute  is  practically  the 
common-law  writ  of  certiorari,  and  is  a  matter  not  of 
absolute  right,  but  rests  in  the  sound  discretion  of  the 
court.  When  it  appears  in  a  proceeding  instituted  by  an 
individuBl  taxpayer  to  annul  the  tax  assessed  against  his 
property,  on  account  of  some  insufficiency  or  irregularity 


July,  1905.]  Oregon  R.  Co.  v.  Umatilla  County.         209 

in  the  manner  of  the  assessment  or  the  description  of  the 
property,  that  no  equitable  grounds  exist  for  the  allowance 
of  the  writ,  it  should  ordinarily  be  denied,  leaving  the  tax- 
payer to  such  remedies  as  the  law  otherwise  affords  him: 
Burnett  v.  Douglas  County,  4  Or.  388;  Woodworth  v.  Gibbs, 
61  Iowa,  398  (16  N.  W.  287);  Knapp  v.  Heller,  32  Wis.  467. 

9.  There  are  many  decisions  to  be  found  in  the  books 
in  reference  to  the  suflSciency  of  the  description  of  prop- 
erty on  tax  rolls,  but  they  are  of  little  value  in  determining 
a  particular  case.  Any  description  is  good  which  would 
be  sufficient  in  a  deed  of  conveyance  or  in  a  contract 
to  convey,  and  which  affords  a  means  of  identification, 
and  does  not  mislead,  or  is  not  calculated  to  mislead,  the 
owner:  B.  &  C.  Comp.  §  3057;  Cooley,  Taxation  (2  ed.), 
404);  1  Desty,  Taxation,  567;  1  Blackwell,  Tax  Titles  (5 
ed.),  §  223. 

10.  Extrinsic  evidence,  moreover,  is  admissible  to  iden- 
tify the  property,  explain  ambiguities,  and  aid  in  the  inter- 
pretation of  the  description  :  Smith  v.  Shattuck,  12  Or.  362 
(7  Pac.  335);  Minter  v.  Durham,  13  Or.  470  (11  Pac.  231); 
Kelly  V.  Herrall  (C.  C),  20  Fed.  364.  If  the  property  as- 
sessed is  not  described  at  all,  or  if  the  description  used  is 
so  uncertain  and  indefinite  as  to  be  void  on  its  face,  there 
is,  of  course,  no  assessment,  and  any  attempt  by  the  county 
court  to  levy  a  tax  would  be  void ;  but  where  there  is  an 
attempt  to  describe  the  property,  and  such  description  is 
not  void  on  its  face,  or  might,  in  the  light  of  extrinsic  tes- 
timony, be  sufficient,  the  levy  cannot  be  declared  void  on 
a  writ  of  review. 

11.  Now,  in  this  case,  the  description  of  certain  lots  in 
certain  blocks  in  "Res.  Add.  Pend.,  City  of  Pendleton," 
may  or  may  not  be  a  good  description,  according  to  the 
surrounding  circumstances,  and  the  same,  we  think,  may 
be  said  of  a  certain  number  of  miles  of  "R.  R.  Bed,"  or 

47  Or. 14 


210  Oregon  R.  Co.  v.  Umatilla  County.       [47  Or. 

**R.  of  W.,"  or  a  one  or  two  wire  system  of  telegraph.  The 
assessment  to  a  railroad  company  of  a  certain  number  of 
miles  of  *'roadbed".  is  not  void  because  of  an  insufficient 
description.  The  roadbed  has  a  definite  location,  and  there 
can  be  no  uncertainty  as  to  what  property  is  meant,  nor 
can  there  be  any  doubt  that  it  can  be  found  and  definitely 
located  from  the  description :  Oregon  &  Oal.  R,  Co.  v.  Jack- 
son County,  38  Or.  589,  604  (64  Pac.  307, 65  Pac.  369).  To 
determine  the  sufficiency  of  the  descriptions  of  property 
in  the  assessment  roll  before  us,  extrinsic  proof  is  admis- 
sible and  such  proof  cannot  be  had  in  a  proceeding  of  this 
kind.  The  court  cannot  declare  the  descriptions  void  on 
their  face. 

12.  Again,  the  statute  makes  a  tax  deed  conclusive  evi- 
dence of  certain  facts  and  presumptive  evidence  of  others 
(B.  &  C.  Comp.  §  3127),  and  the  county  will  be  deprived 
of  the  benefit  of  these  presumptions  if  the  validity  of  the 
assessment  can  be  attacked  for  a  mere  apparent  defect  in 
the  description,  by  writ  of  review,  before  any  attempt  has 
been  made  to  enforce  the  tax.  The  descriptions  in  this 
case  were  sufficient  to  apprise  the  plaintiff  of  the  property 
intended  to  be  assessed  to  it.  It  appeared  before  the  board 
of  equalization,  and,  without  making  any  objection  to  the 
assessment  on  the  ground  of  an  imperfect  description,  or 
because  property  had  been  assessed  to  it  which  it  did  not 
own,  applied  for  a  reduction  in  the  valuation  of  its  prop- 
erty. Indeed,  in  such  application  it  expressly  recognizes 
that  its  depot  grounds  in  Pendleton  and  166.40  miles  of 
roadbed  and  track  had  been  properly  assessed  to  it.  It 
obtained  a  reduction  in  the  valuation  of  the  former,  and 
an  adjudication  by  the  county  court  as  to  the  proper  val- 
uation of  the  latter,  and  it  is  therefore  not  entitled  to  have 
the  tax  levies  on  such  property  vacated  and  declared  void 
in  this  proceeding  because  of  a  defect  in  the  description. 
It  is  the  duty  of  a  taxpayer  to  furnish  the  assessor  a  list 


July,  1905.]  Oregon  R.  Co.  v.  Umatilla  County.         211 

of  his  real  and  personal  property  liable  to  taxation,  and 
to  make  oath  to  such  list:  B.  &  C.  Comp.  §  3070.  If  th'e 
plaintiff  furnished  the  list  as  required,  it  certainly  cannot 
complain  at  this  time  of  the  insuflSciency  of  the  descrip- 
tion. If  it  neglected  or  refused  to  do  so,  it  ought  not  to 
be  permitted  to  challenge  by  writ  of  review  the  sufficiency 
of  the  description  as  made  up  by  the  assessor,  after  treat- 
ing such  description  as  sufficient  in  the  proceedings  before 
the  board  of  equalization. 

It  is  often  said  that  proceedings  for  the  assessment  and 
levy  of  a  tax  are  hostile  to  the  taxpayer,  and  void  unless 
in  strict  compliance  with  the  statute.  In  a  measure,  and 
under  some  circumstances,  this  is  true,  but  the  doctrine 
ought  not  to  prevail  in  a  proceeding  such  as  this,  because, 
as  said  by  Mr.  Justice  Coolky:  **The  proceedings  in  the 
assessment  of  a  tax  are  not,  in  any  proper  sense,  hostile 
to  the  citizen.  They  are,  on  the  other  hand,  proceedings 
necessary  and  indispensable  to  the  determination  of  the 
exact  share  which  each  resident  or  property  owner  ought 
to  take,  and  may  and  ought  to  be  supposed  desirous  of  tak- 
ing, in  meeting  the  public  necessity  for  a  revenue  —  pro- 
ceedings which  the  willingness  of  the  taxpayer  cannot 
dispense  with,  and  which  only  become  hostile  when  the 
duty  to  pay,  once  fixed,  fails  to  be  performed  by  payment. 
Then,  and  then  only,  do  the  steps  taken  by  the  govern- 
ment assume  a  compulsory  form.  Until  then  the  reason- 
able presumption  is  that  government  and  taxpayer  will 
act  together  in  harmony,  and  that  the  latter  will  meet  his 
obligation  to  pay  as  soon  as  the  former  has  performed  its 
duty  in  determining  the  share  to  be  paid":  Cooley,  Taxa- 
tion. 283,  note. 

From  these  views,  it  follows  that  the  decision  of  the 
court  below  should  be  affirmed,  and  it  is  so  ordered. 

Affirmed. 


212  Carter  v,  Wakkman.  [47  Or. 

Decided  3  November,  1905. 

CABTEB  V.  WAKBMAN. 

812  Pac.  858. 

Appeal— RuLKS  op  Court  — Delay  in  Filing  Brief. 

Failure  of  appellant  to  file  a  brief  within  20  days  after  service  of  the  abstract, 
as  required  by  Rule  Q  of  this  court  (35  Or.  587,  503),  is  not  excused  by  reason  of  the 
fact  that  the  manuscript  was  placed  In  the  hands  of  the  printer  Immediately 
upon  serving  and  filing  the  abstract,  and  the  work  was  prosecuted  as  rapidly  as 
possible,  but  was  not  completed  within  time,  and  the  time  within  which  to  file 
and  serve  the  same  was  overlooked  by  counsel,  where  there  was  no  attempt  to 
get  any  extension  of  time  within  which  to  serve  the  brief,  and  no  attention  was 
paid  to  the  matter  until  a  motion  to  dismiss  was  made  by  respondent;  thd  brief 
then  being  long  overdue. 

Appeal  from  Jackson  County. 

Action  by  Nancy  Carter  against  Miles  S.  Wakeman, 
resulting  in  a  judgment  for  defendant,  from  which  an 
appeal  was  taken.  The  case  was  before  this  court  on  a 
prior  appeal :  42  Or.  147  (70  Pac.  393).  Respondent  now 
moves  to  dismiss  this  appeal.  Dismissed. 

Mr.  O.  H.  Durham  for  the  motion. 
Mr.  H.  D.  Norton^  contra. 

Per  Curiam.  This  is  a  motion  to  dismiss  the  appeal 
on  two  grounds :  (1)  That  the  undertaking  was  not  served; 
and  (2)  that  the  brief  of  appellant  was  not  served  within 
20  days  after  the  service  of  the  abstract.*  In  the  view 
we  have  taken  of  the  matter,  it  will  only  be  necessary  to 
notice  the  latter  assignment. 

The  abstract  was  served  on  July  31,  1905,  within  time, 
but  up  to  the  time  of  the  filing  of  the  motion  to  dismiss, 
to  wit,  October  9, 1905,  the  appellant  had  not  then  served 
or  filed  her  brief.  There  was  a  showing  made  October  21, 
to  the  effect  that  counsel  for  appellant  immediately,  upon 
serving  and  filing  the  abstract  of  record,  caused  a  type- 
written manuscript  of  the  brief  to  be  placed  in  the  hands 
of  the  printer,  and  the  work  of  printing  the  same  prose- 


*  Note.—  See  Rule  6  of  the  supreme  court :  35  Or.  587, 503.—  Reporter. 


Nov.  1905.]  Miles  v.  Swanson.  213 

cuted  as  rapidly  as  possible,  but  that  the  brief  was  not  yet 
complete,  and  that  the  time  within  which  to  serve  and  file 
the  same  had  been  overlooked  by  counsel ;  based  upon 
which,  appellant  now  asks  to  be  relieved  from  her  default. 
There  was  no  attempt  to  get  any  extension  of  time  within 
which  to  serve  such  brief,  and,  by  reason  of  the  want  of 
such  an  order,  the  appellant  became  in  default  August  20, 
having  all  that  day  in  which  to  serve  the  same.  Since 
that  time  no  attention  was  apparently  paid  to  the  matter, 
until  reminded  by  the  motion  to  dismiss. that  the  brief 
was  long  overdue,  whereupon  the  first  effort  was  made  to 
be  reinstated  under  the  rules  of  the  court. 

We  are  agreed  that  the  delay  has  not  been  excused  by 
the  showing,  and  that  the  appeal  should  be  dismissed ; 
and  it  is  so  ordered.  Dismissed. 


Decided  8  Xovember/ 1906. 

MILBS  V.  SWANSON. 

82  Pac.  954. 

Appeal  — Review  op  Findings  in  Absence  of  Evidence. 

1.  Where  no  bill  of  exceptions  1m  In  the  record,  and  the  evidence  Is  not  brought 
before  the  supreme  court,  any  error  In  the  flndlng^s  of  fact  Is  not  subject  to  review. 

Appeal— Conclusiveness  of  Findings. 

2.  The  supreme  court  cannot  disturb  a  finding  of  Cact  made  by  a  trial  court, 
unless  there  Is  no  evidence  from  which  such  finding  may  reasonably  be  Inferred. 

Dismissing  Appeal  for  Want  of  Subject  for  Consideration. 
8.  Where  no  question  to  be  reviewed  or  considered  Is  pre^sented  by  the  record 
an  appeal  should  be  dismissed. 

Appeal  from  Multnomah  County. 

W.  A.  Miles  recovered  a  judgment  against  Samuel  Swan- 
son  who  appealed.  Respondent  now  moves  to  dismiss  the 
appeal.  Dismissed. 

Messrs.  Chamberlain  &  Thomas  for  the  motion. 
Mr,  George  Perley  Lent,  contra. 


214  Miles  v.  Swanson.  [47  Or. 

Per  Curiam.  The  plaintiff  bad  judgment  in  a  trial  be- 
fore tbe  court,  a  jury  being  waived.  An  estoppel  by  way 
of  former  adjudication  was  pleaded  in  the  reply  to  certain 
matters  of  defense  set  up  in  the  answer.*  The  court  made 
a  specific  finding  as  to  the  estoppel,  and  the  only  assign- 
ment of  error  upon  which  the  appellant  now  relies  is  with 
reference  to  such  finding.  No  bill  of  exceptions  was  set- 
tled or  filed  in  the  cause,  and  the  case  is  here  wholly  upon 
the  findings  of  fact  and  conclusions  of  law  rendered  by 
the  circuit  court  and  the  judgment  entered  in  pursuance 
thereof.  The  respondent  now  moves  to  dismiss  the  ap- 
peal, and  for  reasons  thereof  urges  that,  there  being  no 
bill  of  exceptions  in  the  record,  no  questions  are  pre- 
sented for  our  determination. 

1.  The  findings  of  fact  were  rendered  after  trial  upon 
the  merits,  which  implies  that  the  trial  court  heard  evi- 
dence upon  the  matters  at  issue  under  the  pleadings,  and 
that  from  such  evidence  it  deduced  its  findings.  None  of 
the  evidence  having  been  brought  up,  it  is  impossible  for 
us  to  say  whether  the  deductions  of  the  trial  court  are 
right  or  wrong. 

2.  Besides,  this  court  could  not  disturb  a  finding  of  fact, 
unless  there  was  no  evidence  adduced  from  which  such 
finding  could  reasonably  be  inferred:  Hicklin  v.  McCUar, 
18  Or.  126  (22  Pac.  1057).  The  record  discloses  no  such 
condition.  It  is  not  insisted  that  the  findings  do  not  sup- 
port the  judgment,  but  only  that  the  court  erred  in  this 
one  finding  of  fact. 

3.  The  record  being  such  that  we  cannot  determine 
anything  as  to  the  point  urged,  there  are  no  questions 
presented  for  our  consideration,  for  which  reason  the 
motion  to  dismiss  the  appeal  should  be  allowed,  and  it  is 
so  ordered.  Affirmed. 


Nov.  1905.]      Reid  v.  Alaska  Packing  Co.  215 

Argoed  11  October,  decided  27  November,  1905. 
BEID  V.  AJLABKA  PACKIKO  00. 

8»  Pac.  189. 

Principal  ahd  Agent— Authority  to  Warrant. 

1.  A  mere  selling  agent  cannot  warrant  the  property  sold  in  any  particular, 
unless  such  property  is  usually  sold  under  a  warranty. 

For  instance :  A  selling  agent  for  a  corporation  which  deals  only  In  Alaska 
salmon  has  no  authority  to  sell  for  the  corporation  salmon  taken  from  other 
than  Alaskan  waters,  or  to  warrant  that  the  salmon  sold  by  him  shall  be  equal 
to  salmon  not  found  in  Alaskan  waters,  and  not  dealt  in  by  the  corporation. 

DiSAFFIRMANCB  BY  PRINCIPAL  OF  UNAUTHORIZED  ACTS  OF  AGENT. 

2.  Where  an  agent  exceeds  his  authority  in  contracting  for  his  principal,  the 
principal,  upon  being  ftilly  Informed  of  the  facts,  must,  within  a  reasonable 
time,  disaffirm  the  act  of  his  agent,  where  his  silence  might  operate  to  the 
prejudice  of  innocent  parties,  or  he  will  be  held  to  have  ratified  such  unauthor- 
lied  act,  and  such  ratification  will  be  equivalent  to  a  precedent  authority. 

Rules  of  Agency  Apply  to  Corporations. 

8.  The  rule  of  agency  requiring  reasonably  prompt  disavowal  of  the  un- 
authorized acts  of  an  agent  is  applicable  to  corporations  as  well  as  to  Individuals. 

Example  of  Unratified  Act  of  Unauthorized  Agent. 

4.  A  secretary  of  a  corporation,  whose  duties  are  prescribed  by  the  by-laws, 
and  who  is  without  authority  to  make  any  contracts  on  behalf  of  the  corpora- 
tion, unless  authorized  by  the  board  of  directors,  cannot  ratify  an  unauthorized 
contract  made  by  an  agent  of  the  corporation. 

Idem. 

5.  Where  a  corporation  promptly  disaffirmed  the  unauthorized  act  of  its  sell- 
ing agent  in  warranting  goods  sold,  Its  act  in  afterward  shipping  the  buyer 
samples  of  its  goods  does  not  constitute  a  ratification  of  the  agent's  unauthor- 
ized act  in  making  the  warranty. 

BcoPE  OF  Agent's  Authority  Must  be  Ascertained. 

0.  A  principal  is  not  bound  by  the  acts  of  his  agent  unless  they  are  within 
the  real  or  apparent  scope  of'the  authority  of  such  agent,  and  one  dealing  with 
an  agent  of  a  corporation  Is  bound  at  his  peril  to  ascertain  the  extent  of  the 
agent's  authority,  and  Is  chargeable  with  knowledge  thereof. 

Duty  of  Principal  to  Disaffirm  Acts  of  Agent. 

7.  Where  a  buyer  knew  or  was  chargeable  with  knowledge  that  the  seller's 
agent  had  no  authority  to  bind  the  seller  by  a  warranty  clause  in  the  contract  of 
sale,  it  was  the  duty  of  the  buyer,  if  It  wished  to  rely  upon  the  warranty,  to 
ascertain  whether  the  agent's  act  h&d  been  ratified  by  the  seller,  and  in  the 
absence  of  knowledge  by  the  seller  that  the  buyer  was  relying  upon  the  war- 
ranty It  was  under  no  duty  to  advise  the  buyer  of  its  disapproval  of  the  agent's 
act. 

From  Clatsop:  Thomas  A.  McBridk,  Judge. 

Statement  by  Mr.  Justice  Bean. 

This  is  an  action  by  Reid,  Murdoch  &  Co.,  against  the 
Alaska  Fishermen^s  Packing  Co.  The  plaintiff  is  a  Chicago 
company,  engaged  in  buying  and  selling  salmon,  and  the 


216  Reid  V,  Alaska  Packing  Co.  [47  Or. 

defendant  is  an  Oregon  corporation,  with  its  principal  office 
in  Astoria,  but  engaged  in  packing  salmon  in  Alaska.  In 
March,  1899,  defendant  employed  C.  M.  Webber  &  Co.,  brok- 
ers in  Chicago,  to  act  as  its  agents  *'in  selling  its  salmon*' 
in  Illinois  and  adjoining  slates.  The  contract  of  brokerage 
was  negotiated  through  Frank  Patton,  of  Astoria,  who, 
under  arrangements  with  Webber  &  Co.,  was  to  receive  one 
half  the  commissions  on  sales  made  by  them  under  the  con- 
tract and  act  as  their  Coast  representative.  On  March  29 
Webber  &  Co.  wired  Patton  of  an  offer  of  the  plaintiff  to 
buy  2,500  cases  *'Alaska  salmon  quality  guaranteed  fully 
equal  to  best  Puget  Sound  Sockeye."  Patton,  thinking  that 
he  could  place  this  offer,  so  advised  Webber  &  Co.,  and  on 
April  3  they  wired  him  that  they  had  sold,  subject  to  con- 
firmation, **2,500  cases  one-pound  red  Alaska  salmon,  tails, 
unlabeled,  loss  vessel  or  destruction  of  cannery  cancels 
contract,  all  other  conditions,  terms,  guaranties,  shipments, 
as  per  our  telegram  29th  ultimo,  30th  ultimo,  confirmed." 
This  sale  was  satisfactory  to  Patton,  and  he  requested  that 
contracts  therefor  be  forwarded  to  him.  Thereupon  Web- 
ber &  Co.  entered  into  a  contract  with  the  plaintiff  to  sell 
and  deliver  to  it,  for  account  of  the  defendant,  2,500  cases 
of  salmon,  shipments  to  be  made  as  early  as  any  Puget 
Sound  salmon ;  but,  in  place  of  stipulating  for  Alaska 
salmon,  they  agreed  that  defendant  would  sell  and  deliver 
**2,500  cases  one-pound,  tall,  fancy  sockeye  salmon,  ♦  » 
quality  to  be  equal  to  the*  best  Puget  Sound  Fancy  Sock- 
eye" —  a  quality  and  kind  of  fish  not  found  in  Alaska,  or 
packed  or  dealt  in  by  the  defendant.  A  written  memo- 
randum of  the  contract  was  forwarded  by  Webber  &  Co. 
Xo  Patton,  who  delivered  it  to  the  officers  of  the  defendant; 
but  they  refused  to  accept  or  confirm  it  because  the  com- 
pany did  not  pack  or  deal  in  sockeye  salmon  or  salmon  of 
the  quality  specified  therein,  and  it  would  not  agree  to  fur- 
nish fish  of  that  kind  and  quality.    The  memorandum  was 


Nov.  1905.]      Reid  v.  Alaska  Packing  Co.  217 

thereupon  returned  to  Webber  &  Co.,  and  on  April  29,  at 
their  request,  the  contract  with  plaintiff  was  modified  by 
stipulating  that  the  fish  might  "be  packed  in  Alaska," 
but  should  "be  exactly  like  Puget  Sound  Fancy  Sockeye." 
The  fish  packed  by  the  defendant  were  not  of  the  quality 
called  for  in  the  contract,  and  it  refused  to  furnish  or  de- 
liver any  other  fish,  whereupon  the  plaintiff  brought  this 
action  to  recover  damages  for  a  breach  of  the  contract. 
The  defendant  denied  that  it  ever  made  or  authorized  the 
making  of  the  contract  in  question,  or  approved  or  rati- 
fied the  same,  or  that  it  ever  became  bound  by  it;  and 
this  was  the  principal  question  on  the  trial.  At  the  close 
of  plaintiff's  testimony  the  court  granted  an  involuntary 
nonsuit,  and  the  plaintiff  appeals.  Affirmed. 

For  appellant  there  was  a  brief  and  an  oral  argument  by 
Mr.  Frank  Spittle, 

For  respondent  there  was  a  brief  over  the  name  of  Fulton 
Bros.,  with  an  oral  argument  by  Mr.  George  Clyde  Fulton. 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

1.  Webber  &  Co.  had  no  authority  to  sell  for  defendant 
sockeye  salmon,  or  to  warrant  that  the  quality  of  the  fish 
which  they  agreed  to  sell  to  the  plaintiff  should  be  equal 
to  the  best  Puget  Sound  Fancy  Sockeye.  They  had  noth- 
ing but  a  power  to  sell  fish  packed  by  the  defendant  com- 
pany, and  had  no  authority  to  warrant  that  such  fish  should 
be  of- a  quality  not  found  in  Alaskan  waters  or  packed  or 
handled  by  the  defendant.  A  mere  selling  agent,  without 
express  power  to  warrant,  cannot  give  a  warranty  which 
will  bind  his  principal,  unless  the  sale  is  of  a  class  which 
is  ordinarily  accompanied  by  a  warranty :  Smith  v.  Tracy, 
36  N.  Y.  79  ;  Wait  v.  Borne,  123  N.  Y.  592  (25  N.  E.  1053.) 

2.  In  order,  therefore,  to  make  the  defendant  liable  on 
the  contract,  it  was  necessary  for  the  plaintiff  to  show  that 
it  had  ratified  or  affirmed  it.    There  is  no  contention  that 


218  Reid  t;.  Alaska  Packing  Co.  '  [47  Or. 

the  contract  was  expressly  ratified,  but  it  is  claimed  that 
there  was  evidence  tending  to  show  an  implied  ratification 
by  silence  and  acquiescence.  The  evidence  to  support  this 
position  consists  of  the  testimony  of  Patton,  of  Moen,  the 
president  of  the  defendant,  and  of  Frost,  a  member  of  the 
firm  of  Webber  &  Co.,  and  some  letters  and  telegrams. 
Patton  testified  that  he  was  acting  for  Webber  &  Co.,  attend- 
ing to  their  business  on  the  Coast;  that  he  received  from 
them  and  delivered  to  the  officers  of  the  defendant  a  writ- 
ten memorandum  of  a  contract  made  on  its  behalf  with  the 
plaintiff;  that  the  officers  did  not  seem  qualified  to  accept 
it  because,  as  they  said,  the  company  was  selling  red  Alaska 
salmon  only ;  that  they  would  present  the  matter  to  the 
board  of  directors  and  it  would  take  some  action  in  the 
premises ;  that  he  was  afterwards  advised  that  the  contract 
was  rejected,  as  he  understood  it,  by  the  board  of  directors, 
and  in  the  latter  part  of  April  the  memorandum  was  re- 
turned by  him  to  Webber  &  Co.  Moen,  who  was  the  presi- 
dent of  the  defendant  at  the  time,  testified  that  he  saw  the 
memorandum  of  the  contract  in  the  office  of  the  company 
shortly  after  it  was  received  from  Patton  ;  that  he  told 
Patton  that  he  objected  to  it  because  of  the  quality  of  fish 
specified  ;  that  a  meeting  of  the  board  of  directors  of  the 
company  was  immediately  called,  and  the  contract  was 
rejected;  that  the  memorandum  was  sent  back  to  Webber 
&  Co.,  and  they  were  advised  that  it  would  not  be  accepted 
or  ratified;  that  the  memorandum  afterwards  came  back 
to  the  company,  through  Patton,  who  delivered  it  to  the 
secretary,  but  that  the  contract  was  never  accepted  or  rati- 
fied, although  the  memorandum  remained  in  the  office  for 
some  time. 

On  April  24, 1899,  the  secretary  of  the  defendant  wrote 
Webber  &  Co.,  acknowledging  the  receipt,  through  Patton, 
of  a  contract  with  the  plaintiff  for  2,500  cases  of  salmon, 
one-pound  tails,  at  one  dollar  per  dozen,  f.  o.  b.  Astoria, 


Nov.  1905.]      Reid  v.  Alaska  Packing  Co.  219 

and  ou  the  19th  of  June  advised  them  that  at  a  recent 
meeting  of  the  board  of  directors  the  contract  made 
through  them  with  the  plaintiff  was  considered,  and  that, 
as  the  defendant  was  not  a  packer  of  the  kind  of  salmon 
specified,  it  could  not  accept  the  contract.  Mr.  Frost,  a 
member  of  the  firm  of  Webber  &  Co.,  came  West  about 
this  time  to  adjust  the  misunderstanding,  if  possible.  He 
testified  that,  immediately  upon  his  arrival  at  Astoria,  a 
meeting  of  several  of  the  directors  of  the  defendant,  the 
secretary,  Mr.  Patton,  and  himself,  was  held  in  Patton's 
office ;  that  the  only  question  in  dispute  was  the  provision 
in  the  contract  concerning  the  quality  of  fish  to  be  deliv- 
ered, as  the  right  of  Webber  &  Co.  to  make  the  sale  was 
admitted ;  that  witness  explained  to  the  parties  present 
that,  owing  to  the  delay  of  the  defendant  in  objecting  to 
the  terms  of  the  contract,  it  had  become  fixed,  and  stated 
to  them  that  Webber  &  Co.  had  in  their  office  in  Chicago 
a  written  statement  from  the  buyer  of  the  plaintiff  that  he 
understood  that  the  salmon  might  be  packed  in  Alaska; 
that  it  was  thereupon  agreed  that,  if  W^ebber  &  Co.  would 
send  to  the  defendant  this  paper  or  a  sworn  copy,  it  would 
approve  the  contract.  Whether  the  statement  or  memo- 
randum referred  toby  Frost  was  ever  sent  to  the  defendant 
is  not  shown  by  the  testimony,  but  probably  not,  or,  if  it 
was,  it  was  not  satisfactory;  for  on  June  28  the  contract 
was  returned  to  Frost  by  the  secretary  of  the  company  in 
a  letter  saying,  among  other  things :  "We  do  not  think  it 
necessary  to  explain  the  matter  of  sockeye  any  further." 
The  matter  seems  to  have  stood  in  practically  this  con- 
dition until  September  9,  when  the  defendant  shipped  a 
sample  of  its  salmon  to  the  plaintiff  and  wired  asking  about 
labeling  and  shipping.  The  sample  did  not  equal  Puget 
Sound  Fancy  Sockeye,  and  the  defendant  was  informed 
by  plaintiff  of  that  fact  and  that  it  must  have  the  quality 
called  for,  when  it  wired  :  "Samples  sent  equal  best  packed. 


220  Reid  V,  Alaska  Packing  Co,  [47  Or. 

We  consider  contract  canceled."  There  was  some  further 
correspondence  between  the  plaintiff  and  defendant  in 
reference  to  the  dispute,  but  it  has  no  particular  bearing 
on  the  question  now  under  consideration.  The  single 
question  is  whether  this  testimony  was  sufficient  to  carry 
the  case  to  the  jury  on  the  question  of  ratification. 

The  rule  is  elementary  that  when  an  agent,  in  con- 
tracting for  his  principal,  exceeds  his  authority,  the  prin- 
cipal, upon  being  fully  informed  of  the  facts,  must,  within 
a  reasonable  time,  disavow  or  disaffirm  the  act  of  his  agent, 
especially  in  cases  where  his  silence  might  operate  to  the 
prejudice  of  innocent  parties,  or  he  will  be  held  to  have 
ratified  and  affirmed  such  unauthorized  act,  and  such 
ratification  will  be  equivalent  to  a  precedent  authority: 
Mechem,  Agency,  §§  155, 157;  Saveland  v,  Harlow,  40  Wis. 
431,  438 ;  Heyn  v.  O'Hagen,  60  Mich.  150  (26  N.  W.  861). 

3.  This  rule  is  as  applicable  to  corporations  as  individ- 
uals {Currie  v.  Bowman^  25  Or.  364,  35  Pac.  848 ;  Shepard 
V.  Briggs,  26  Vt.  149),  and  has  its  foundation  in  the  doc- 
trine of  equitable  estoppel.  It  proceeds  upon  the  maxim 
that,  if  one  remains  silent  when  in  conscience  he  ought 
to  speak,  he  will  be  debarred  from  speaking  when  in  con- 
science he  ought  to  remain  silent.  But,  in  this  case, 
the  evidence  shows  that  the  defendant  did  not  remain 
silent  when  informed  that  Webber  &  Co.  had  exceeded 
their  authority  by  warranting  the  quality  of  the  fish 
which  they  agreed  to  sell  to  the  plaintiff  on  the  defend- 
ant's account.  On  the  contrary,  it  immediately  repu- 
diated the  act  and  has  continuously  disaffimed  the  con- 
tract. Patton,  through  whom  the  business  was  transacted, 
was  informed,  when  he  delivered  the  memorandum  of  the 
contract  to  the  officers  of  the  defendant,  that  they  could 
not  accept  or  ratify  it,  because  the  defendant  was  not 
packing  or  dealing  in  fish  of  the  quality  specified  therein ; 
and  Moen,  the  president  of  the  company,  when  advised  of 


Nov.  1905.]      Reid  V,  Alaska  Packing  Co.  221 

the  contract,  immediately  disaffirmed  it  and  it  was  after- 
wards formally  rejected  by  the  board  of  directors. 

4.  The  acknowledgment  on  April  24  by  the  secretary 
of  the  defendant  of  a  copy  of  the  contract  through  Patton, 
and  his  failure  to  notify  Webber  &  Co.  that  it  had  been 
disaffirmed  or  rejected  until  June  19,  is  no  evidence  of 
a  ratification  by  the  defendant.  Webber  &  Co.  had  been 
advised  previous  to  that  time,  through  their  correspondent 
Patton,  that  the  defendant  had  disaffirmed  and  disavowed 
the  contract.  The  secretary's  duties  were  prescribed  by 
the  by-laws  of  the  defendant,  and  he  had  no  authority 
whatever  to  make  any  contracts  for  or  on  behalf  of  the 
company,  unless  authorized  by  the  board  of  directors,  and 
so  could  not  ratify  an  unauthorized  contract  made  by  some 
other  agent. 

5.  Nor  was  the  shipment  by  defendant  to  plaintiff  of 
samples  of  fish  in  September  a  recognition  or  ratification 
of  the  warranty  clause  in  the  contract  previously  made 
with  it  by  Webber  &  Co.  Webber  &  Co.  had  authority 
to  bind  the  defendant  by  contracting  for  the  sale  of  its 
salmon.  The  defendant  had  promptly  disavowed  and  dis- 
affirmed their  unauthorized  act  in  making  the  warranty; 
but  it  had  not  repudiated  the  entire  contract  on  that  ac- 
count, nor  is  there  any  evidence  that  the  plaintiff  had  de- 
clined to  be  bound  by  the  contract  without  such  warranty. 
The  shipment  of  the  samples  was  due  to  the  desire  of  the 
defendant  to  comply  with  a  contract  which  its  agents,  Web- 
ber &  Co.,  had  authority  to  make,  and  not  in  affirmance  or 
ratification  of  their  unauthorized  acts. 

6.  It  is  contended  that  the  defendant  should  have  noti- 
fied  the  plaintiff  of  its  disaffirmance  of  the  contract,  and 
that  by  its  omission  to  do  so  it  ratified  and  affirmed  it. 
A  principal  is  not  bound  by  the  acts  of  an  agent  unless 
within  the  real  or  apparent  scope  of  the  authority  of  such 
agent  (2  Page,  Contracts,  §  967),  and  one  dealing  with  an 


222  Reid  V,  Alaska  Packing  Co.  [47  Or, 

agent  of  a  corporation  is  bound  at  his  peril  to  ascertain 
the  extent  of  the  agent's  authority  and  is  chargeable  with 
knowledge  thereof:  Hotel  Co,  v.  Furniture  Co.  73  Mo.  App. 
135;  BuBch  v.  Wilcox,  82  Mich.  336  (46  N.  W.  940);  Lister 
V.  Allen,  31  Md.  543  (100  Am.  Dec.  78).  The  plaintiff  there- 
fore knew,  or  was  chargeable  with  knowledge,  that  Webber 
&  Co.  had  no  authority  to  bind  the  defendant  by  the  war- 
ranty clause  in  the  contract,  and  that  such  clause  could 
have  no  force  or  effect  unless  subsequently  ratified  or  af- 
firmed by  the  defendant. 

7.  It  was  the  duty  of  the  plaintiff,  if  it  relied  upon  the 
warranty,  to  ascertain  whether  the  unauthorized  act  of  the 
agent  in  making  it  had  been  approved  by  the  principal, 
for,  without  such  approval,  it  was  invalid.  There  was  no 
evidence  that  defendant  knew  that  plaintiff  was  relying  or 
acting  upon  the  warranty  clause.  It  was  not  its  duty,  there- 
fore, to  advise  them  of  its  disapproval.  It  was  sufficient 
when  it  promptly  disaffirmed  and  disavowed  the  unauth- 
orized act  of  its  agent  and  refused  to  be  bound  thereby. 
As  is  said  by  the  Supreme  Court  of  Vermont:  "It  is  the 
duty  of  one  trading  with  an  agent  who  has  only  a  limited 
and  special  authority  to  make  inquiry  as  to  the  extent  of 
the  agent's  authority;  if  he  omits  inquiry,  he  does  so  at  his 
peril.  It  is  not  the  duty  of  the  principal,  upon  hearing  of 
the  sale  by  the  agent,  to  seek  the  purchaser  and  give  him 
notice  of  his  claim,  and  his  omission  to  do  so,  his  mere 
silence,  are  not  ordinarily  to  be  construed  as  a  ratification 
of  the  sale.  If  special  circumstances  may  be  supposed  to 
exist,  which  would  make  it  the  duty  of  the  principal  to  give 
such  notice,  none  such  are  proved  in  this  case":  White  v. 
Langdon,  30  Vt.  599,  603. 

It  follows  that  the  judgment  of  the  court  below  must  be 
affirmed,  and  it  is  so  ordered.  Affirmed. 


July,  1905.]  Barring  BR  v.  Loder.  223 

Argued  27  Juae,  decided  17  July,  rehearing  denied  28  Aagust,  1905. 

BABBINGEB   v.  LODEB. 

81  Pac.  778. 

Promlssory  Note— Notice  to  Purchaser— Lost  Instrument. 

1.  A  purchaser  of  a  lost  note  and  mortgage  is  put  on  inquiry  as  to  the  true 
ownership  by  the  absence  of  the  instrunaents,  and  buys  at  his  peril,  unless  he 
may  rely  absolutely  on  the  record,  regardless  of  his  personal  knowledge. 

Title  op  Purchaser  of  Lost  Neqotiable  Paper. 

2.  A  purchaser  uf  a  lost  negotiable  instrument  before  maturity  takes  in  sub- 
ordination to  any  previous  indorsee  in  good  faith. 

Statute.**— Implied  Amendment. 

3.  A  statute  relating  to  a  matter  partly  covered  by  an  existing  statute  will 
pot  be  construed  to  modify  or  repeal  the  earlier  law,  unless  the  two  are  repugnant. 

Recording  Acts— Validity  of  Assignment  of  Note  and  Mortgage- 
Construction  OF  Word  "May." 

4.  Section  5:^07,  B.  A  C.  Comp.,  enacted  in  1888,  providing  for  the  release  of 
mortgages  by  the  holders  of  the  notes  thereby  secured,  is  not  modified  or  repealed 
by  Sections  o362,  538S,  and  &308,  or  any  of  them,  providing  that  mortgages  **  may  " 
be  assigned  by  written  instruments,  which  "shall"  be  recorded  In  the  public 
records,  and  that  no  mortgage  shall  be  released  except  by  the  person  appearing 
by  the  county  records  to  be  the  owner  thereof,  the  word  "may"  in  Section  5802 
being  used  perralssively  and  not  Imperatively. 

From  Clackamas:  Thomas  A.  McBride,  Judge. 

Mortgage  foreclosure  by  Margaret  Barringer  against 
John  W.  Loder  and  others.  The  facts  appear  in  the 
opinion, except  that  plaintiff  was  given  a  judgment  against 
the  defendants  W.  B.  &  A.  M.  Hayden  on  their  note  and 
a  decree  foreclosing  the  mortgage  given  to  secure  its  pay- 
ment, the  effect  of  which  was  to  oblige  the  Haydens  to  pay 
the  note  twice,  it  having  been  supposedly  paid  to  Loder, 
who  claimed  to  own  it,  but  did  not  have  it  in  his  posses- 
sion. The  Haydens  appeal,  but  Mrs.  Barringer  did  not 
appeal  from  that  part  of  the  decree  subordinating  her 
mortgage  to  those  of  Fellows  and  Miller.       Affirmed. 

For  appellants  there  was  a  brief  over  the  name  of  C.  D, 
&  D.  C.  Latourette,  with  an  oral  argument  by  Mr,  Charles 
D.  Latourette. 

For  respondent  there  was  a  brief  over  the  names  of 
Charles  Joseph  Schnabel,  Grant  £  Dimick  and  Jacob  B.  Ofner^ 
with  oral  arguments  by  Mr,  Schnabel  and  Mr,  Ofner, 


224  Barrinqer  v.  Lodbr.  [47  Or. 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

This  is  a  mortgage  foreclosure.  A  decree  having  been 
rendered  favorable  to  plaintiff,  the  defendants  Hayden 
appeal. 

On  January  25,  1901,  W.  B.  Hayden  purchased  for  the 
consideration  of  $1,600,  from  William  Bar  ringer,  certain 
realty  situate  in  Clackamas  County,  and  a  deed  was  duly 
executed  and  delivered.  Six  hundred  dollars  of  the  pur- 
chase price  was  paid  down,  and  for  the  balance  of  $1,000 
Hayden  and  his  wife  executed  and  delivered  to  Barringer 
their  joint  and  several  promissory  note,  payable  to  his 
order  three  years  after  date,  and  executed  and  delivered 
to  Barringer  their  mortgage  upon  the  premises  to  secure 
the  payment  of  such  note.  This  mortgage  was  recorded 
February  18  following.  About  the  time  of  the  transfer, 
Barringer  and  wife,  the  latter  being  the  plaintiff  herein, 
who  were  then  living  at  Rock  Springs,Wyoming,  had  a  sep- 
aration, and  by  agreement  between  them,  whereby  they 
divided  up  their  property,  this  note  and  mortgage  were 
to  become  the  individual  property  of  the  wife.  The.  note 
was  accordingly  indorsed  by  the  husband,  and  both  instru- 
ments transferred  and  delivered  to  the  wife.  Mrs.  Bar- 
ringer testifies  that  the  consideration  she  gave  for  the  note 
and  mortgage  was  her  interest  in  a  restaurant  and  in  the 
cash  they  then  had  in  the  bank,  amounting  to  eight  or  nine 
hundred  dollars.  This  was  amply  sufficient  to  uphold  the 
transfer.  These  negotiations  appear,  so  far  as  the  record 
shows,  to  have  been  actual  and  bona  fide,  and,  if  the  trans- 
fer of* the  documents  was  sufficient  in  law,  Mrs.  Barringer 
thereby  became  the  owner  of  them. 

In  February,  about  the  time  the  mortgage  was  recorded, 
Mrs.  Barringer  called  at  the  Haydens,  in  Clackamas  County, 
to  get  the  note  and  mortgage,  and,  being  advised  that  they 
had  been  sent  back  to  Rock  Springs  the  day  previous,  she 
notified  them  that  she  was  the  owner  thereof ;  that  she  and 


July,  1905.]  Barringer  v,  Loder.  225 

her  husband  had  separated,  and  that  these  papers  had  been 
turned  over  to  her  as  her  share  of  the  property ;  and  she 
at  the  same  time  insisted  that  they  should  pay  no  one  else 
but  her.  This  circumstance  is  not  denied  by  Mrs.  Hayden, 
although  she  was  a  witness  in  the  case.  Mr.  Hayden  leaves 
the  impression  that  Mrs.  Barringer  came  to  stop  the  cash 
payment,  but  made  no  specific  or  particular  claim  as  to  the 
ownership  of  the  note  and  mortgage,  and  gave  no  warning 
as  to  whom  the  money  should  be  paid.  He  subsequently 
admits,  however,  that  Mrs.  Barringer  told  him  that  the 
note  had  been  indorsed  over  to  her  by  Barringer,  which 
information  he  had  previous  to  his  payment  of  the  same 
to  Loder.  That  the  Haydens  knew,  however,  the  exact  re- 
lations Mrs.  Barringer  sustained  to  the  paper,  almost  from 
the  very  beginning,  is  shown  by  the  correspondence  be- 
tween Mrs.  Hayden  and  Mrs.  Barringer,  of  which  Hayden 
had  full  knowledge,  and  the  further  admissions  of  Hayden 
himself.  Besides  this,  there  is  the  physical  fact  that  Hay- 
den paid  to  Mrs.  Barringer  the  first  year's  interest  by  draft 
through  the  bank,  and  whatever  payments  they  subse- 
quently made,  intended  to  be  in  discharge  of  the  note, 
were  with  such  knowledge. 

In  March,  1902,  Barringer,  through  the  Commercial 
Bank  at  Oregon  City,  negotiated  a  sale  of  the  note  and 
mortgage  to  the  defendant  Loder  for  the  consideration  of 
$300.  That  sum  was  remitted  through  the  bank,  less  one 
dollar  collection  and  exchange  and  $50  paid  to  C.  D.  & 
D.  C.  Latourette  for  their  services  in  connection  with  the 
negotiations.  Barringer  claimed  that  the  note  and  mort- 
gage had  been  lost,  and  for  that  reason  was  unable  to 
produce  and  deliver  them  to  Loder.  Acting  upon  this  in- 
formation, Loder  testifies,  in  effect,  that  he  went  to  the 
records,  and  found  the  title  of  the  mortgage  to  be  in  Bar- 
ringer, there  appearing  to  have  been  no  transfer  by  him 

47  Ob. 15 


226  Barrinqbr  v,  Loder.  [47  Or. 

of  the  same  to  any  person  ;  and,  believing  that  Barringer 
had  a  legal  right  to  make  a  proper  transfer  to  him,  whereby 
he  would  obtain  a  perfect  title,  he  completed  the  purchase. 
In  this  connection  the  evidence  shows  that  Loder  drew  up 
the  form  of  assignment  of  the  mortgage  by  Barringer  to 
him,  and  at  the  same  time  prepared  an  affidavit  for  Bar- 
ringer to  verify,  showing  the  loss  as  he  claimed  ;  but  that 
Barringer  would  not  sign  the  affidavit,  and  the  sale  was  not 
readily  closed  on  that  account.  About  this  Loder  testifies 
further  that,  seeing  that  Barringer  had  covenanted  in  the 
assignment  that  he  was  the  owner,  he  concluded  to  waive 
the  affidavit  of  loss,  and  closed  up  the  purchase.  The 
assignment  appears  of  date  March  7,  1902,  and  was  re- 
corded on  the  18th  of  the  same  month.  Thereafter,  about 
January  21,  1903,  Hayden  was  induced  to  make  payment 
of  the  note  in  full  to  Loder,  saving  one  year's  interest  of 
$60,  being  the  second  to  fall  due.  The  matter  was  consid- 
ered as  to  the  rightful  ownership  of  the  note  and  mortgage, 
and  Loder  agreed  to  indemnify  Hayden  to  the  extent  of 
$100  in  case  it  was  determined  that  the  former  was  not  the 
legal  owner.  In  order  to  obtain  the  money  with  which  to 
pay  Loder,  the  Haydens  borrowed  $800  of  the  defendant 
Elvira  D.  Fellows,  and  $200  from  Catherine  Miller,  giv- 
ing them  mortgages  upon  the  premises  to  secure  these 
amounts.  Upon  receiving  the  money,  Loder  assumed 
to  cancel  the  Barringer  mortgage  of  record.  The  circuit 
court  foreclosed  these  latter  mortgages,  declaring  them  to 
be  first  liens  upon  the  premises,  and  subordinating  the 
plaintiff's  lien  thereto,  on  the  ground  that  they  were  ac- 
quired without  notice  of  plaintiff's  rights. 

1,  The  cardinal  question  presented  here  is,  who  acquired 
the  better  title  to  the  note  and  mortgage  in  suit,  the  plain- 
tiff or  Loder?  If  the  former,  Hayden  was  not  legally  jus- 
tified in  making  the  payment  to  Loder,  and  such  payment 
did  not  operate  to  discharge  the  debt,  so  that  the  mortgage 


July,  1905.]  Barring ER  v,  Loder.  227 

remains  as  a  subsisting  lien  upon  the  property,  although 
Loder  has  assumed  to  cancel  it  of  record.  The  payment 
was  made  by  Hayden,  as  we  have  seen,  with  absolute  knowl- 
edge of  Mrs.  Barringer's  claim  and  rights  in  the  premises, 
and  the  status  of  the  parties  concerned  is  thus  far  unmis- 
takably ascertained.  Loder's  advice  from  Barringer  that 
the  note  was  lost  before  his  purchase  was  sufficient  to  put 
him  upon  inquiry  as  to  the  true  ownership  of  the  paper, 
and  he  bought  at  his  peril,  unless  he  was  not  required  to 
look  farther  than  the  record  to  ascertain  who  appeared 
there  to  be  the  owner.  This  proposition,  we  think,  will 
not  be  denied, 

2.  Aside  from  the  mortgage  consideration,  it  seems  clear 
that,  if  a  person  assumes  to  purchase  lost  negotiable  paper, 
and  it  subsequently  transpires  that  some  one  else  besides 
the  party  pretending  to  sell  has  acquired  title  by  previous 
indorsement  from  the  rightful  owner,  he  will  not  get  any 
title  by  his  purchase,  because  the  vendor  would  have  none 
to  sell,  and  it  would  make  no  difference  that  he  purchased 
without  notice  or  knowledge  of  the  indorsee's  right  or 
title  in  the  premises.  The  indorsee  would  incontrovert- 
ibly  have  acquired  a  better  title,  and  coitld  maintain  it  as 
against  any  effort  on  the  part  of  the  would-be  purchaser 
to  show  that  he  obtained  his  interest  bona  fide,  and  with- 
out knowledge  of  the  indorsement.  If  the  party  assuming 
to  sell  has  no  title  to  the  paper,  he  cannot  transfer  any, 
and  the  purchaser  of  lost  paper  must  buy  at  his  peril.  Thus 
is  the  status  of  Loder,  under  the  facts,  also  established,  and 
he  cannot  strengthen  his  title  behind  the  shield  of  a  pur- 
chaser or  owner  without  notice,  because  he  only  purchased 
such  title  as  Barringer  had  at  the  time,  unless,  as  has  been 
observed,  he  was  warranted  in  relying  solely  upon  the 
record  title. 

3.  The  appellants  base  the  right  o!  Loder  to  rely  upon 
the  record  and  their  right  to  discharge  by  payment  to  him 


228  Barringer  v.  Lodbr.  [47  Or, 

upon  Sections  5362  and  5363  of  B.  &  C.  Comp.,  it  being 
insisted  that  a  mortgage  cannot  be  otherwise  assigned  or 
transferred  than  as  by  these  sections  prescribed.  The  first 
section  provides,  in  effect,  that  mortgages  may  be  assigned 
or  transferred  by  an  assignment  in  writing,  executed  and 
acknowledged  with  the  same  formalities  as  deeds  and 
mortgages,  etc.,  and  the  second  that  every  assignment  of 
a  mortgage  shall  be  recorded  at  full  length,  and  reference 
shall  be  made  to  the  book  and  page  containing  such  as- 
signment upon  the  margin  of  the  mortgage  record.  The 
word  "  may  "  where  appearing  in  the  former  section,  it  is 
urged,  should  be  construed  as  mandatory,  and  to  mean 
"  shall"  or  '*  must,"  thus  precluding  and  invalidating  any 
other  form  of  assignment.  These  sections  were  enacted 
in  1895,  with  two  others,  one  being  Section  5368  of  the 
Code,  and  the  other  the  emergency  clause,  which  latter 
shows  why  the  act  was  adopted :  Laws  1895,  pp.  56,  56, 
§§  62,  63,  64.  It  was  because  it  had  been  determined, 
among  other  things,  by  the  decisions  of  this  court,  that 
there  were  no  provisions  in  the  statute  for  the  recording 
of  assignments  of  mortgages.  Section  5368  of  the  Code 
provides  that  no  mortgage  upon  real  estate  shall  be  sat- 
isfied or  released  so  as  to  free  the  property  from  the  lien 
of  the  mortgage  except  by  the  person  appearing  upon  the 
records  to  be  the  owner  thereof,  and  that  a  satisfaction  or 
release  of  such  mortgage  by  a  party  so  appearing  to  be  the 
owner  or  holder  should  operate  to  free  the  property  of  the 
lien  so  far  as  it  affects  subsequent  purchasers  and  in- 
dorsees for  value,  without  notice.  Prior  to  the  enactment 
of  this  statute  there  existed  another,  being  Section  5367, 
B.  &  C.  Comp.,  adopted  in  1889  ( Laws  1889,  p.  38,  §§  1,  2, 3), 
which  provides,  in  effect,  that  whenever  a  promissory  note 
secured  by  a  mortgage  on  real  property  shall  be  transferred 
by  indorsement,  without  formal  assignment,  and  such 
mortgage  shall  have  been  duly  recorded,  the  same,  upon 


July,  1905.]  Barringer  v,  Loder.  229 

payment  of  the  note,  may  be  discharged  of  record  by  the 
owner  or  holder  of  the  note  making  and  filing  with  the 
recorder  or  county  clerk,  as  the  case  may  be,  a  certificate, 
duly  verified  by  his  oath,  declaring,  in  substance,  that  he 
is  the  owner  and  holder  of  the  note  secured  by  the  mort- 
gage by  indorsement,  and  that  said  note  has  been  fully 
paid,  and  by  proving  the  fact  to  the  satisfaction  of  the 
recorder  or  clerk  and  delivering  the  note  to  that  officer. 
Further  provision  is  made  for  recording  the  certificate  and 
note  and  making  a  notation  thereof  upon  the  recorded 
mortgage,  which  entry,  it  is  declared,  shall  have  the  effect 
of  a  deed  of  release  of  the  mortgage.  The  act  of  1895  makes 
no  express  repeal  of  this  statute,  and  it  must  remain  opera- 
tive, unless  the  provisions  of  the  former  are  repugnant 
thereto ;  but  we  take  it  that  there  wasT  no  design  to  repeal 
it,  and  this  is  evidenced  by  the  use  of  the  word  **may  "  in 
Section  5362,  and  the  emergency  clause  to  which  attention 
has  been  called. 

4.  When  these  statutes  were  enacted,  an  indorsement  of 
a  note  had  been  long  recognized  as  carrying  with  it  the 
mortgage  given  to  secure  its  payment,  as  the  latter  was 
regarded  but  an  incident  to  the  debt :  Roberts  v.  Sutherlin, 
4  Or.  219;  Bamberger  v.  Qeiser,  24  Or.  204  (33  Pac.  609). 
The  act  of  1889  is  in  express  recognition  of  this  manner 
of  assignment,  and  it  provides  an  appropriate  method  of 
satisfying  the  mortgage  of  record  by  the  assignee  or  in- 
dorsee of  the  note.  When  the  legislature  came  to  the  en- 
actment of  the  subsequent  statute,  it  very  properly  used 
the  word  "  may"  with  reference  to  an  assignment  by  sep- 
arate writing,  still  recognizing  the  right,  as  it  had  formerly 
done,  to  assign  by  indorsement  of  the  note.  When  it  comes 
to  the  manner  of  recording  the  assignment,  the  word 
"  shall "  is  used.  Why  use  the  word  "  may  "  in  one  section 
and  "shall"  in  the  succeeding  one?  The  relationship  in- 


230  Barrinqer  v.  Lodbr.  [47  Or. 

dicates  an  intendment  that  there  should  be  a  distinction 
in  their  application  in  practice,  and  this  is  reenforced  by 
the  legislative  declaration  that  the  act  of  1895  was  adopted 
because  there  existed  no  statute  for  the  recording  of  as* 
signments  of  mortgages.  Assignments  in  the  method 
designated  then  could  be  made  before  the  statute  as  well 
as  by  assignment  of  the  note,  and  the  act  simply  prescribes 
that  this  may  still  be  done  by  that  method,  but  that  such 
assignments  shall  be  recorded  in  the  manner  pointed  out. 
This  construction  is  in  harmony  with  the  settled  rule. 
The  intention  of  the  legislature  is  manifest,  and  the  words 
should  be  given  their  ordinary  acceptation  and  meaning. 
Say  the  learned  authors  of  the  American  and  English  En- 
cyclopaedia of  Law  (2  ed.,  vol.  20,  p.  237):  "In  a  statute 
the  word  'may'  can  be  construed  in  a  mandatory  sense 
only  where  such  construction  is  necessary  to  give  effect  to 
the  clear  policy  and  intention  of  the  legislature  ;  and 
where  there  is  nothing  in  connection  with  the  language 
nor  in  the  sense  or  policy  of  the  provision  to  require  an 
unusual  interpretation,  its  use  is  merely  permissive  and 
discretionary."  The  text  is  supported  by  numerous  au- 
thorities, and  the  principle  has  been  recognized  by  this 
court:  King  Real  Estate  Assoc,  v.  Portlandy23  Or.  199  (31 
Pac.  482).  It  is  clear,  therefore,  that  Loder  acquired  no  title 
by  virtue  of  his  assignment  from  Barringer,  and  that  Hay- 
den's  payment  to  him  was  not  effective  to  discharge  the 
obligation  as  against  Mrs.  Barringer. 

These  considerations  affirm  the  decree  of  the  circuit 
court,  and  it  is  so  ordered.  Affirmed. 


jU  .ml 


Nov.  1905.]      Wong  Sing  v,  Indepbndbnce.  231 

Argaed  12  October,  decided  27  November^  1905. 

WOKG  SING  &.  INDEPBKDBKOE.  f^    23Sil 

88  Pac.  887. 

CONFEBBING  JUBISDIGTION  — CONSENT  OP  PABTIBS. 

1.  Coarts  derive  Jarisdiction  over  causes  from  the  same  sources  Arom  which 
they  derive  their  existence  and  J  urisdiction  cannot  be  obtained  elsewhere.  Though 
parties  may  voluntarily  appear  and  thereby  subject  their  persons  to  the  Jurisdic- 
tion, they  cannot  by  either  waiver  of  process  or  consent  confer  on  any  tribunal 
Jurisdiction  over  the  subject-matter  of  a  proceeding,  as,  for  instance,  over  an  ap- 
pea  by  voluntarily  appearing  and  trying  the  questions  involved. 

Appeal  Fbom  Municipal  Coubts  —  Review. 

2.  The  right  of  appeal  trom  a  municipal  court  cannot  be  conferred  by  an  ordi- 
nance of  the  city,  and  the  remedy  in  such  cases  is  by  writ  of  review,  where  no 
appeal  is  provided  for  by  the  charter. 

Statutoby  Constbcction— Intoxicating  Liquobs. 

8.  Different  sections  of  a  statute  must  be  read  together  to  ascertain  their  ftill 
meaning,  and  sometimes  words  used  in  an  earlier  section  must  be  understood  in 
a  laiar  section. 

This  illustrates  the  rule:  Where  a  city  ordinance  provides  that  no  person  shall 
sell  liquor  in  less  quantities  than  a  gallon  without  a  license,  and  in  a  subsequent 
section  further  provides  that  any  one  selling  or  disposing  of  any  liquor  without  a 
license  shall  be  punished,  the  words  **in  less  quantities  than  a  gallon"  are  im- 
pliedly imported  Into  the  latter  section. 

Intoxicating  Liquobs— Infobmation. 

4.  An  information  for  selling  liquor  in  less  quantity  than  is  permitted  to  be 
sold  without  a  license  need  not  show  the  exact  amount  so  sold,  but,  the  amount 
being  an  element  of  the  offense,  the  Information  must  show  that  such  amount 
was  less  than  that  allowed,  in  view  of  B.  <&  C.  Ck>mp.  g  1806,  requiring  a  criminal 
chaiye  to  be  direct  and  certain  as  to  the  crime  meant. 

Cebtainty  of  Infobkation  fob  Selling  Intoxicating  Liquobs— Dis- 
junctive AND  Conjunctive  Chabgbs. 

5.  Under  an  ordinance  forbidding  the  doing  of  any  of  several  enumerated  acts 
disjunctively,  an  Information  charging  the  doing  of  all  such  acts  both  conjunc. 
tively  and  di^unctively  is  neither  direct  nor  certain  as  to  the  crime  charged 
(B.  A  O.  Comp.  %  1308),  and  charges  more  than  one  offense  in  more  than  one  form: 
B.  A  C.  Comp.  I  1806. 

For  instance :  Und^r  an  ordinance  forbidding  the  sale  of  "any  spirituous,  malt 
or  vinous  liquors,"  and  making  each  sale  a  separate  offense,  an  information  in 
which  is  charged  a  sale  of  "spirituous  and  malt  liquors,  or  spirituous  or  malt 
liquors"  is  not  sufficient  under  B.  A  C.  Comp.  U  1306  and  1808. 

Estoppel  to  Question  Fobm  of  Infobmation. 

6.  That  an  information  under  a  city  ordinance  is  in  conformity  with  the  form 
prescribed  by  the  ordinances  of  such  city  does  not  estop  the  defendant  from  ques- 
tioning its  validity  or  prevent  a  court  f^om  testing  it  by  the  general  laws  appli- 
cable thereto. 

From  Polk:  William  Galloway,  Judge. 
Statement  by  Mr.  Justice  Moorb. 
This  is  a  special  proceeding  to  review  a  judgment  of  an 
inferior  court.    An  accusation  was  filed  in  the  Recorder's 


232  Wong  Sing  v.  Indbpendbnce.  [47  Or. 

Court  of  the  City  of  Independence  against  the  plaintiff 
herein,  which  charge,  omitting  the  formal  parts,  is  as 
follows : 

"The  said  Wong  Sing  is  accused  by  this  complaint  with 
th6  crime  of  selling  spirituous  or  malt  liquors  in  the  City 
of  Independence,  Oregon,  committed  as  follows,  to  wit: 
That  said  Wong  Sing,  in  the  City  of  Independence,  in  Polk 
County,  Oregon,  did  on  the  14th  day  of  December,  1904, 
and  the  17th  day  of  December,  1904,  then  and  there  being, 
did  then  and  there  sell,  or  cause  to  be  sold,  spirituous  and 
malt  liquors,  or  spirituous  or  malt  liquors,  in  the  City  of 
Independence,  without  license,  and  contrary  to  the  laws 
of  the  City  of  Independence,  the  same  being  a  violation  of 
Section  7  of  Ordinance  16,  which  provides  for  the  punish- 
ment of  such  offenses,  and  contrary  to  the  statutes  in  such 
cases  made  and  provided,  and  against  the  peace  and  dig- 
nity of  the  City  of  Independence." 

A  demurrer  to  this  pleading  was  interposed,  on  the 
grounds  that  more  than  one  offense  was  attempted  to  be 
charged  and  that  the  facts  so  stated  do  not  constitute  a 
crime.  The  demurrer  was  sustained  as  to  the  date,  **the 
17th  day  of  December,  1904,"  as  set  out  in  the  complaint, 
but  overruled  in  all  other  respects,  and,  a  trial  being  had, 
the  plaintiff  herein  was  found  guilty  as  charged  and  sen- 
tenced to  pay  a  fine  and  the  costs  and  disbursements  of 
the  action.  He  thereupon  sued  out  a  writ  of  review,  in 
pursuance  of  which  the  proceedings  had  against  him  in  the 
recorder's  court  in  such  action,  together  with  a  certified 
copy  of  Ordinance  No.  16,  of  that  city,  were  certified  up 
to  the  circuit  court  for  that  county,  where,  upon  a  hearing 
based  on  such  return,  the  writ  was  dismissed,  and  from 
the  latter  j  udgment  he  appeals  to  this  court.     Reversed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr,  Oscar  Hayter. 

For  respondent  there  was  a  brief  and  an  oral  argument 
by  Mr,  Gustavus  A  dolphua  Hurley, 


Nov.  1905.]      Wong  Sing  v.  Indbpendencb.  233 

Mr.  Chief  Justice  Moore  delivered  the  opinion. 

1.  It  is  insisted  by  defendant's  counsel,  in  support  of  the 
judgment  of  the  circuit  court,  that  plaintiff  had  a  remedy 
by  appeal  from  the  judgment  rendered  against  him  in  the 
recorder's  court;  and,  this  being  so,  a  writ  of  review  was 
not  the  proper  remedy  to  correct  the  errors  alleged  to  have 
been  committed.  Assuming,  without  deciding,  that  a  writ 
of  review  does  not  lie  in  cases  where  a  remedy  by  appeal 
exists,  the  authority  relied  upon  as  conferring  the  latter 
right  will  be  examined.  The  charter  reincorporating  the 
City  of  Independence,  filed  in  the  office  of  the  Secretary  of 
State  February  21 ,  1903  (Sp.  Laws  1903,  pp.  703, 714) ,  does 
not  in  express  terms  grant  such  right.  It  is  argued  by 
defendant's  counsel,  however,  that  an  ordinance  of  that 
city,  passed  and  approved  in  March,  1894,  conferred  the 
right  of  appeal  from  judgments  rendered  in  the  recorder's 
court,  which  municipal  enactment  was  recognized  and  ap- 
proved when  the  new  charter  was  granted.  The  clause  of 
the  charter  relied  upon  is  as  follows: 

'*A11  ordinances  heretofore  passed  and  in  force  when  this 
act  takes  effect,  and  not  in  conflict  with  any  of  its  provi- 
sions, shall  be  and  remain  in  force  after  this  act  takes 
effect  until  repealed  by  the  city  council":  Sp.  Laws  1903, 
pp.  703,  711,  §  28. 

The  ordinance  in  question  is  not  certified  up  as  a  part 
of  the  transcript.  There  is  printed  in  the  brief  of  the  de- 
fendant's counsel  what  purports  to  be  Section  13  of  Ordi- 
nance No.  1,  of  the  City  of  Independence,  passed  March 
7,  1894,  and  approved  three  days  thereafter,  of  which  the 
following  is  an  excerpt,  to  wit:  "Defendant  may  appeal 
from  a  judgment  rendered  in  the  recorder's  court  at  any 
time  within  30  days  from  its  rendition."  If  the  proof  of 
the  existence  of  this  ordinance  was  adequate,  we  do  not 
think  the  right  attempted  to  be  conferred  could  possibly 
be  granted  in  the  manner  indicated.    Jurisdiction  of  the 


234  Wong  Sing  v.  Independence.  [47  Or. 

subject-matter  of  actions  depends  for  its  exercise  upon  a 
valid  grant  of  power,  evidenced  by  proper  legislative  en- 
actment. The  parties  to  actions  may  waive  their  own 
rights  and  confer  jurisdiction  of  their  persons  by  a  vol- 
untary appearance,  but  they  are  powerless  to  confer  upon 
any  tribunal  jurisdiction  of  an  appeal,  because  the  right 
to  do  so  is  not  vested  in  them. 

2.  The  section  of  the  charter  hereinbefore  quoted  rec- 
ognized the  validity  of  ordinances  *4n  force"  when  the  act 
went  into  effect.  An  ordinance  attempting  to  confer  juris- 
diction of  the  subject-matter  of  actions  was  never  in  force, 
and  hence  no  appeal  lies  from  a  judgment  rendered  in  the 
Recorder's  Court  of  the  City  of  Independence. 

3.  The  conclusion  thus  reached  brings  us  to  a  consid- 
eration of  the  question  whether  or  not  the  complaint  filed 
in  the  recorder's  court  complied  with  the  requirements 
of  the  statute  in  the  manner  of  charging  the  plaintiff  with" 
the  commission  of  a  crime.  The  charter  of  the  City  of 
Independence,  creating  the  office,  analogous  to  that  of  a 
police  judge,  and  prescribing  the  procedure  thereof,  con- 
tains the  following  provision : 

"The  recorder  is  the  judicial  officer  of  the  said  city,  and 
shall  hold  court  therein  at  such  place  as  the  council  may 
provide,  which  shall  be  known  as  the  'recorder's  court,'  and 
he  shall  *  *  have  exclusive  jurisdiction  of  all  offenses 
defined  and  made  punishable  by  any  ordinance  of  the  city, 
and  of  all  actions  brought  to  enforce  or  to  recover  any  pen- 
alty or  forfeiture  declared  or  given  by  such  ordinance; 
and  he  shall  be  governed  by  the  Justice's  Code  of  this 
State  in  all  civil  and  criminal  proceedings  in  the  recorder's 
court,  including  all  proceedings  for  violation  of  any  city 
ordinance":  Sp.  Laws  1903,  pp.  703,  707,  §  18. 

An  examination  of  the  Justice's  Code  of  this  State  will 
show  that  the  following  are  the  provisions  regulating  the 
proceedings  of  such  inferior  tribunals,  to  wit: 


Nov.  1905.]      Wong  Sing  v.  Independence.  .      235 

'*A  criminal  action  in  a  justice's  court  is  commenced 
and  proceeded  in  to  final  determination,  and  the  judg- 
ment therein  enforced,  in  the  manner  provided  in  the 
Code  of  Criminal  Procedure^  except  as  in  this  title  other- 
wise specially  provided":  B.  &  C.  Comp.  §  2263. 

In  a  justice's  court  a  criminal  action  is  commenced  by 
the  filing  of  a  complaint  therein:  B.  &  C.  Comp.  §  2264. 
The  complaint  is  to  be  deemed  an  indictment  within  the 
meaning  of  the  provisions  of  Chapter  VIII  of  the  Code  of 
Criminal  Procedure,  prescribing  what  is  sufficient  to  be 
stated  in  such  pleading,  and  the  form  of  stating  it :  B.  &  C. 
Comp.  §  2265.  The  provisions  of  Chapter  VIII  of  the  Code 
to  which  attention  is  called,  so  far  as  applicable  to  the 
sufficiency  of  the  complaint  in  the  case  at  bar,  is  as  fol- 
lows: 

"The  indictment  must  charge  but  one  crime  and  in  one 
form  only ;  except  that,  where  the  crime  may  be  committed 
by  the  use  of  different  means,  the  indictment  may  allege 
the  means  in  the  alternative":  B.  &  C.  Comp.  §  1308. 

And  it  "must  be  direct  and  certain,  as  it  regards  the 
crime  charged":  B.  &  C.  Comp.  §  1306. 

The  provisions  of  Ordinance  No.  16  of  the  City  of  In- 
dependence, involved  herein,  are  as  follows: 

"Section  1.  That  no  person  or  persons  shall  be  per- 
mitted to  sell  or  in  any  manner  dispose  of  any  spirituous, 
malt,  or  vinous  liquors  in  the  City  of  Independence  in  less 
quantities  than  a  gallon  without  first  having  obtained  a 
license  therefor  from  the  City  of  Independence  as  herein- 
after provided. 

"Sec.  7.  Any  person  who  shall  sell,  give  away,  or  in 
any  manner  dispose  of,  or  shall  keep  for  sale,  or  offer  to 
sell,  give  away  or  in  any  manner  dispose  of,  within  the 
corporate  limits  of  the  City  of  Independence,  any  spirit- 
uous, malt,  or  vinous  liquors,  without  first  having  obtained 
a  license  for  that  purpose  as  in  this  ordinance  provided, 
shall,  upon  conviction  thereof  before  the  recorder's  court, 
be  punished  by  a  fine  of  not  less  than  fifty  dollars  nor 


236  Wong  Sing  v.  Independence.  [47  Or. 

more  than  one  hundred  dollars,  or  by  imprisonment  in 
the  city  jail  not  less  than  twenty-five  days  nor  more  than 
fifty  days,  or  both  such  fine  and  imprisonment,  at  the 
option  of  the  court,  and  each  and  every  sale  or  disposal 
of,  or  offer  to  sell  or  in  any  manner  dispose  of,  any  spirit- 
uous, malt,  or  vinous  liquors,  shall  constitute  a  separate 
and  distinct  violation  of  the  provisions  of  this  section." 

Construing  the  section  last  quoted  in  pari  materia  with 
the  preceding,  so  as  to  determine  their  import,  would  neces- 
sarily incorporate  into  section  7  the  phrase  **in  less  quan- 
tities than  a  gallon,*'  to  be  found  in  section  1  of  the  ordi- 
nance. The  sales,  donations  or  disposals  of  intoxicating 
liquors  thus  prohibited,  without  first  having  procured  a 
license  authorizing  them,  are  of  quantities  less  than  a 
gallon.  No  license  is  required,  and  hence  no  offense  is 
committed  against  the  State  law,  when  in  the  same  trans- 
action a  gallon  or  more  of  spirituous,  malt  or  vinous  liquor 
is  sold,  given  away  or  disposed  of  by  any  person  in  the 
City  of  Independence. 

4.  An  examination  of  the  complaint  in  the  case  at  bar, 
filed  in  the  recorder's  court,  will  show  that  it  fails  to  state 
that  the  quantity  of  intoxicating  liquors  alleged  to  have 
been  sold  by  Wong  Sing  was  less  than  a  gallon.  It  was 
not  essential  to  the  validity  of  the  complaint  that  it  should 
specify  the  exact  measure  of  the  intoxicating  liquor  sold, 
such  as  a  gill,  a  pint,  a  quart,  etc.,  but  it  was  necessary  to 
aver  that  the  quantity  disposed  of  was  less  than  a  gallon: 
State  V.  Mondy,  24  Ind.  268.  The  complaint,  not  having 
averred  that  the  quantity  of  intoxicating  liquor  sold  was 
less  than  the  measure  specified,  failed  to  state  facts  suffi- 
cient to  constitute  a  crime. 

5.  It  will  be  remembered  that  the  complaint  accuses 
Wong  Sing  of  selling  **spirituous  and  malt  liquors,  or 
spirituous  or  malt  liquors. *'  It  will  be  kept  in  mind  that 
Section  7  of  Ordinance  No.  16  of  the  City  of  Independence 


Nov.  1905.]      Wong  Sing  v  Independence.  237 

prescribed  a  punishment  for  any  person  who  without  a 
license  therefor  sold,  etc.,  "any  spirituous,  malt  or  •vinous 
liquors,"  and  provided  that  each  and  every  sale,  etc.,  of 
such  liquors  should  constitute  a  separate  and  distinct 
offense.  In  State  v.  Humphreys,  43  Or.  44  (70  Pac.  824), 
in  announcing  the  manner  of  stating  the  facts  constitut- 
ing the  commission  of  a  crime,  it  is  said:  **When  a  statute 
enumerates  several  acts  in  the  alternative,  the  doing  of  any 
of  which  is  subjected  to  the  same  punishment,  all  such  acts, 
when  not  repugnant  to  each  other,  may  be  charged  cumu- 
latively as  one  offense,  by  using  the  copulative  *and'  where 
*or'  appears  in  the  statute ;  but,  where  the  latter  word  is 
used  in  the  sense  of  'to  wit/  or  as  indicating  that  the  terms 
preceding  and  following  are  synonymous,  it  is  unneces- 
sary to  observe  the  distinction  in  the  manner  of  enumer- 
ating the  several  acts  constituting  the  alleged  crime,  in 
which  case  th©  disjunctive  *or'  may  be  used  in  the  infor- 
mation or  indictment  in  the  same  manner  as  it  appears 
in  the  statute.''  Applying  this  rule  to  the  case  at  bar,  if 
it  were  not  for  the  latter  clause  of  Section  7  of  Ordinance 
No.  16,  to  which  attention  has  been  called  making  each 
sale,  etc.,  a  separate  and  distinct  offense,  the  complaint, 
by  charging  the  sale  of  spirituous  "and"  malt  liquors, 
might  be  upheld.  It  is  possible,  however,  that  under  a 
single  sale  spirituous  and  malt  liquors  might  have  been 
mixed,  so  as  to  constitute  but  one  violation  of  the  provi- 
sions of  the  ordinance. 

There  is  a  marked  distinction  between  spirituous  and 
malt  liquors.  The  former  is  obtained  by  distillation,  the 
latter  by  fermenting  an  infusion  of  malt.  The  qualifying 
words  "spirituous"  and  "malt"  are  therefore  not  synony- 
mous  terms,  and  the  employment  of  either  cannot  be  un- 
derstood as  implying  the  use  of  the  other,  so  as  to  permit 
the  disjunctive  "or"  as  used  in  the  phrase  "spirituous  or 
malt  liquors,"  set  out  in  the  complaint,  to  be  construed  as 


238  Wong  Sing  v.  Independence.  [47  Or. 

"to  wit/'  such  as  spirituous  liquor  or  whisky,  malt  liquor 
or  beer,  vinous  liquor  or  wine,  etc.  The  specific  charge 
that  Wong  Sing  sold  ^'spirituous  and  malt  liquors,"  assum- 
ing that  these  kinds  of  beverages  were  blended  so  as  to  be 
embraced  in  a  single  transaction,  is  rendered  uncertain 
by  the  subsequent  statement  in  the  complaint  that  he  sold 
either  "spirituous  or  malt  liquors."  As  the  complaint  in 
a  justice's  court  in  a  criminal  action  takes  the  place  and 
performs  the  service  of  an  indictment,  and  is  construed 
in  the  same  manner  (B.  &  C.  Comp.  §  2265),  the  pleading 
in  the  case  at  bar  violates  the  provisions  of  the  statute 
which  requires  that  the  accusation  must  be  direct  and 
certain  as  to  the  crime  charged  (B.  &  C.  Comp.  §  1306), 
and  that  it  must  charge  but  one  crime  and  in  one  form 
only:  B.  &  C.  Comp.  §  1308. 

The  plaintiff's  counsel  contends  that  the  complaint  is 
insufficient  because  it  does  not  state  the  name  of  the  per- 
son to  whom  the  intoxicating  liquors  were  claimed  to  have 
been  sold,  or  aver  that  such  liquors  were  sold  to  one  John 
Doe,  whose  true  name  was  to  the  private  prosecutor  un- 
known. In  support  of  the  principle  thus  insisted  upon,  it 
is  argued  that  one  of  the  objects  of  a  conviction  or  of  an 
acquittal  is  to  prevent  the  person  so  accused  from  again 
being  placed  in  jeopardy  for  the  same  offense,  and  that 
unless  a  complaint  contains  the  averments  insisted  upon 
the  judgment  rendered  in  an  action  of  this  kind  might 
not  afford  a  defendant  any  indemnity  from  further  pro- 
ceedings or  prosecution.  The  conclusions  reached  upon 
this  question  by  the  courts  of  last  resort  are  variant  (II 
Enc.  PI.  &  Pr.  547),  but,  as  the  complaint  in  the  case  at 
bar  is  so  defective  in  other  respects,  we  do  not  deem  it 
necessary  to  decide  the  question  presented,  believing  that 
in  case  a  new  complaint  is  filed  all  doubt  can  be  resolved 
by  naming  the  purchaser  as  a  matter  of  description  of  the 
offense. 


Dec.  1905.]  Lbavitt  v.  Shook.  239 

6.  The  defendant's  counsel  maintain  that  the  complaint 
in  the  case  at  bar  complies  with  the  requirements  of  Sec- 
tion 15  of  Ordinance  No.  1  of  the  City  of  Independence, 
which  prescribes  the  forms  thereof.  This  ordinance  is  not 
certified  up  or  made  a  part  of  the  bill  of  exceptions,  but,  if 
the  complaint  is  copied  therefrom,  the  suflBciency  of  the 
pleading  might  possibly  estop  the  city,  but  it  could  not 
bind  the  defendant  in  a  criminal  action,  nor  prevent  a 
court  from  construing  the  law  applicable  thereto. 

The  complaint  being  defective  in  the  particulars  here- 
inbefore indicated,  the  judgment  last  appealed  from  is 
reversed,  and  the  cause  will  be  remanded  to  the  circuit 
court  for  Polk  County,  with  directions  to  set  aside  the 
judgment  of  the  recorder's  court.  Reversed. 


Decided  4  December,  1905. 
LEAVITT  V.  SHOOK. 

88  Pac.  891. 

Limitations  —  Replevin. 

1.  Where,  In  replevin  brought  In  1905,  defendant  and  his  vendor  had  been 
in  open,  undisputed  po88es8ion  of  the  property  claimed  since  1890,  claiming 
ownership  In  good  faith,  plaintllTs  action  was  barred  by  limitation. 

Private  Weitingjs  as  Evidence  — Proof  op  Genuineness— Replevin. 

2.  Where,  in  replevin,  defendant  claimed  to  have  purchased  the  property  In 
good  Caith  from  R.,  who  teMtifled  that  he  purchased  It  from  one  J.,  whom  he  be- 
lieved to  be  the  owner,  in  March,  1890,  and  who  had  in  his  possession  and  deliv- 
ered to  R.  what  purported  to  be  a  bill  of  sale  to  him  from  another,  such  bill  of 
sale  is  admissible  without  proof  of  its  genuineness  to  show  the  manner  and  cir- 
cumstances under  which  R.  acquired  possession. 

Stock  Brand  as  Evidence— Replevin. 

3.  Where,  in  replevin  to  recover  a  horse,  defendant's  vendor  testified  that 
after  he  purchased  the  animal  she  was  branded  with  his  brand,  a  copy  of  which 
was  recorded,  such  copy  was  properly  admitted  in  evidence  as  lending  to  show 
good  Ikith. 

From  Baker:    Samuel  White,  Judge. 

Replevin  action  by  E.  V.  Leavitt  against  J.  R.  Shook, 
resulting  in  a  judgment  for  defendant,  from  which  plain- 
tiff appeals.  Affirmed. 


240  Lbavitt  v.  Shook.  [47  Or. 

For  appellant  there  was  a  brief  over  the  name  of  Lomax 
&  Anderson^  with  an  oral  argument  by  Mr.  Leroy  Lomax. 

For  respondent  there  was  a  brief  over  the  names  of  C.  A. 
Johns  and  Woodson  Lycurqus  Patterson^  with  an  oral  argu- 
ment by  Mr.  Patterson, 

Per  Curiam.  Thejudgmentin  this  case  will  be  affirmed. 
It  is  an  action  of  replevin  to  recover  possession  of  a  cer- 
tain mare,  which  the  evidence  for  the  plaintiff  showed  be- 
longed to  him,  but  had  strayed  from  his  place  in  1893,  and 
its  whereabouts  had  been  unknown  to  him  until  the  spring 
of  1905,  a  few  days  before  he  commenced  this  action.  The 
defendant  claimed  to  have  purchased  the  animal  in  good 
faith  from  George  and  H.  J.  Rizor  in  1903 ;  that  the  Rizors 
purchased  her  from  one  Frank  Jones  in  good  faith  in  1896, 
believing  he  was  the  owner  and  had  the  right  to  sell ;  that 
they  thereafter  remained  in  the  open,  notorious  and  undis- 
puted possession  thereof,  under  an  honest  claim  of  right, 
until  the  time  of  the  sale  to  defendant  in  1903.  The  plain- 
tiff claimed  that  the  possession  by  the  Rizors  was  without 
right  and  fraudulent.  The  jury  returned  a  general  ver- 
dict to  the  effect  that  the  plaintiff  was  the  owner  and  en- 
titled to  the  possession  of  the  animal,  but  at  the  same  time, 
and  by  direction  of  the  court,  rendered  a  special  verdict 
as  follows : 

**We,  the  trial  jury,  duly  impaneled  to  try  the  above- 
entitled  cause,  make  the  following  special  findings: 

(1)  If  you  find  from  the  evidence  that  the  defendant 
purchased  the  animal  described  in  the  complaint  from 
George  Rizor  and  H.  J.  Rizor,  then  state  for  how  many 
years  the  said  Rizors  had  the  possession  of  the  said  animal. 

Answer.    Seven  years. 

(2)  Was  there  any  concealment  or  improper  act  on  the 
part  of  the  said  Rizors  in  acquiring  said  animal  or  in  their 
possession  thereof? 

Answer.    No.  Geo.  W.  Wright, 

Foreman." 


Dec.  1905.]  Leavitt  v.  Shook.  241 

Upon  motion  of  the  defendant  the  general  verdict  was 
disregarded  and  one  rendered  in  his  favor  upon  the  special 
findings,  and  plaintiff  appeals. 

1.  Under  the  special  findings  the  defendant  was  entitled 
to  a  judgment  in  his  favor,  because  the  actioA  was  barred 
by  the  statute  of  limitations :  Wells  v.  Halpin,  59  Mo.  92  ; 
Dee  v.  Hyland,  3  Utah,  308  (3  Pac.  388).  It  is  unnecessary, 
therefore,  to  consider  any  of  the  assignments  of  error  except 
such  as  affect  the  special  verdict. 

2.  George  Rizor  was  a  witness  for  the  defendant  and  tes- 
tified that  he  and  his  son,  who  are  partners,  purchased  the 
mare  in  question  of  one  Jones,  whom  they  believed  to  be 
the  owner,  in  March,  1896,  and  that  Jones  had  in  his  pos- 
session at  the  time,  and  delivered  to  them,  what  purported 
to  be  a  bill  of  sale  from  C.  L.  Cromwell  to  him  of  this  par- 
ticular animal  and  others.  This  bill  of  sale  was  introduced 
in  evidence  to  show  the  manner  and  circumstances  under 
which  the  Rizors  came  into  possession  of  the  animal,  and 
not  as  a  muniment  of  title,  and  was  therefore  competent 
for  whatever  the  jury  might  consider  it  worth,  without 
proof  of  its  genuineness :  Spooner  v.  Holmes,  102  Mass.  503 
(3  Am.  Rep.  491);  S^einer  v.  Trawum,  98  Ala.  315  (13  South. 
365). 

3.  Rizor  also  testified  that  after  the  animal  was  pur- 
chased she  was  branded  with  his  brand.  A  copy  of  his 
recorded  brand  was  properly  admitted  in  evidence  as  tend- 
ing to  show  good  faith. 

The  other  assignments  of  error  are  based  on  instruc- 
tions which,  if  erroneous,  were  harmless   because  they 
affected  the  general  verdict  only  and  not  the  special  find- 
ings. Affirmed. 
17  Ob.  — 1« 


242  Fuller  v.  Haqer.  [47  Or. 

Decided  4  December,  1006, 

FULLBB  V,  HAGER. 

83  Pac.  782. 

Guardian  and  Ward  — Effect  on  Guardian's  Bale  of  Not  Taking 
Hpecial'oath  Required  by  Statute. 

1.  Under  Section  5602,  B.  A  C.  Ck>inp.,  requiring  a  guardlaq  to  take  a  special 
oath  before  tlxlng  the  time  and  place  of  a  sale  of  real  property  belonging  to  his 
ward,  the  prescribed  oath  must  be  so  taken  or  the  purchaser  at  the  sale  will  not 
obtain  a  good  title. 

Guardian  and  Ward— Bales  by  Guardian— Irregularities— Subse- 
quent Validation  by  Legislature. 

2.  The  Cailure  of  a  guardian,  in  making  a  sale  of  his  ward's  land,  to  take  the 
oath  prescribed  by  B.  A  C.  Comp.  {5002,  before  fixing  the  time  and  place  of  sale, 
as  required  by  such  section,  does  not  affect  the  Jurisdiction  of  the  court  to  license 
or  confirm  the  sale,  or  of  the  guardian  to  make  it,  but  Is  an  irregularity  in  a 
matCler  of  procedure,  which  the  legislature  could  and  did  cure  by  Laws  1899,  p.  M 
§  8,  validating  guardians'  sales  made  to  purchasers  in  good  fiftith  and  oonflrmecf 
or  acquiesced  in  by  the  county  or  probate  court,  notwithstanding  Irregularities 
in  making  or  conducting  the  same. 

Curative  Statutes  —  Retroactive  Operation. 

3.  The  legislature  may,  unless  prohibited  by  the  constitution,  retrospectively 
validate  or  legalize  Judicial  or  execution  sales,  although  the  defects  or  Irregulari- 
ties therein  are  such  as  to  render  such  sales  inoperative,  provided  it  does  not 
undertake  to  infuse  life  into  proceedings  utterly  void  for  want  of  Jurisdiction. 

From  Morrow :  William  L.  Bradshaw,  Judge. 

Action  by  Arthur  T.  and  James  L.  Fuller,  minors,  by 
Kate  A.  Foor,  their  next  friend,  against  James  M.  Hager, 
resulting  in  a  judgment  for  defendant,  from  which  plain- 
tiffs appeal.  Affirmed. 

For  appellants  there  was  a  brief  over  the  names  of  Car- 
son &  Cannon  and  C.  E.  Woodson^  with  an  oral  argument 
by  Mr,  A,  M,  Cannon. 

For  respondent  there  was  a  brief  with  oral  arguments 
by  Mr,  James  A.  Fee  and  Mr.  Oilbert  Walter  Phelps. 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

This  is  an  action  of  ejectment  to  recover  the  possession 
of  certain  real  property  in  Morrow  County.  The  only  ques- 
tion raised  is  as  to  the  validity  of  a  guardian's  sale  of  plain- 
tiffs' interest  in  the  land.  The  sale  was  made  December 
14, 1889,  by  the  guardian  to  the  defendant  at  public  auction, 


Dec.  1905.]  Fuller  v,  Hager.  243 

in  pursuance  of  a  license  or  order  of  the  county  oourt,  and 
the  purchase  was  made  and  the  purchase  price  paid  to  the 
guardian  in  good  faith.  The  sale  was  reported  to  and  regu- 
larly confirmed  by  the  county  court  on  January  7, 1890,  a 
guardian's  deed  made  to  the  purchaser  on  January  10th, 
and  he  has  ever  since  been  in  possession  of  the  property. 
1.  The  contention  is  that  the  sale  was  invalid  because 
the  guardian  did  not  take  the  oath  required  by  law  before 
fixing  the  time  and  place  of  sale,  or  at  all  until  four  days 
before  the  sale.    Section  5602,  B.  &  C.  Corap.,  provides : 

"Such  guardian  shall,  before  fixing  on  the  time  and  place 
of  sale,  take  and  subscribe  an  oath,  before  the  county  judge, 
or  some  other  officer  competent  to  administer  the  same,  in 
substance  as  follows  :  That  in  disposing  of  the  estate  which 
he  is  licensed  to  sell,  he  will  use  his  best  judgment  in  fix- 
ing the  time  and  place  of  sale,  and  that  he  will  exert  his 
utmost  endeavors  to  dispose  of  the  same  in  such  manner 
as  will  be  most  for  the  advantage  of  all  persons  interested 
therein." 

And  Section  5611  declares: 

"In  case  of  an  action  relating  to  any  estate  sold  by  a  guar- 
dian under  the  provisions  of  this  chapter,  in  which  the 
ward  or  any  person  claiming  under  him  shall  contest  the 
validity  of  the  sale,  the  same  shall  not  be  avoided  on  account 
of  any  irregularity  in  the  proceedings :  Provided,  it  shall 
appear  (1)  that  the  guardian  was  licensed  to  make  the 
sale  by  a  county  court  of  competent  jurisdiction  ;  (2)  that 
he  gave  a  bond  that  was  approved  by  the  county  judge; 
(3)  that  he  took  the  oath  prescribed  in  this  chapter;  (4)  that 
he  gave  notice  of  the  time  and  place  of  sale  as  prescribed 
by  law;  and  (5)  that  the  premises  were  sold  accordingly 
at  public  auction,  and  are  held  by  one  who  purchased  them 
in  good  faith." 

The  selection  of  the  time  and  place  of  sale  by  a  guardian 
in  advance  of  taking  the  prescribed  oath  is,  under  the  de- 
cisions construing  similar  statutes,  fatal  to  the  purchaser's 
title :  Freeman,  Void  Judicial  Sales,  §  22  ;  Gager  v.  Henry, 


244  Fuller  v.  Haqbr.  [47  Or. 

5  Sawy.  237  (9  Fed.  Gas.  No.  5172);  Blackman  v.  Baumann, 
22  Wis.  Oil  ;  Wilkinson  v.  Filby,  24  Wis.  441;  Ryder  v. 
Flandera.SO  Mich.  336;  Bachelor  v.  Korb,  58  Neb.  122  (78 
N.  W.  485,  76  Am.  St.  Rep.  70). 

2.  But  the  defect  or  irregularity  in  the  proceedings  com- 
plained of  in  this  case  was,  we  think,  cured,  and  the  sale 
validated,  by  a  subsequent  curative  act  of  the  legislature 
which  provides — 

"All  sales  by  *  *  guardians  of  their  wards' real  property 
in  this  State  to  purchasers  for  a  valuable  consideration, 
which  has  been  paid  by  such  purchasers  to  such  guardians 
or  their  successors  in  good  faith,  and  such  sales  shall  not 
have  been  set  aside  by  the  county  or  probate  court,  but 
shall  have  been  confirmed  or  acquiesced  in  by  such  county 
or  probate  cpurt,  shall  be  sufficient  to  sustain  a  «  «  guar- 
dian's deed  to  such  purchaser  for  such  real  property;  *  ♦ 
and  all  irregularities  in  obtaining  the  order  of  the  court 
for  such  sale,  and  all  irregularities  in  making  or  conduct- 
ing the  same  bv  such  *  *  guardian,  shall  be  disregarded": 
Laws  1899,  p.  64,  §  3. 

3.  It  is  a  well-recognized  rule  of  law  that  the  legislature 
may,  unless  prohibited  by  the  constitution,  validate  or 
legalize,  retrospectively,  judicial  or  execution  sales,  even 
though  the  defects  or  irregularities  therein  are  of  so  grave 
a  character  as  to  render  them  inoperative,  so  long  as  it  does 
not  undertake  to  infuse  life  into  proceedings  utterly  void  for 
want  of  jurisdiction:  Freeman,Void  Judicial  Sales,  57;  End- 
lich,  Interp.  Stat.  §  291 ;  Wilkinson  v.  Lelandy  27  U.  S.  (2  Pet.) 
627  (7  L.  Ed.  542);  Sohier  v.  Massachusetts  Gen,  Hospital^ 
3Cush.483;  Sanders  w,Greenstreet,2ZK^n.^2b\  Smith  v. 
Callaghan,  66  Iowa,  552  (24  N.  W.  50);  Boyce  v.  Sinclair, 
3  Bush,  261.  Mr.  Cooley  says :  *'There  is  no  doubt  of  the 
right  of  the  legislature  to  pass  statutes  which  reach  back 
to  and  change  or  modify  the  effect  of  prior  transactions, 
provided  retrospective  laws  are  not  forbidden,  eo  nomine, 
by  the  state  constitution,  and  provided  further,  that  no 


Dec.  1905.]  Fuller  v.  Haqer.  245 

other  objection  exists  to  them  than  their  retrospective  char- 
acter. ♦  *  The  rule  applicable  to  cases  of  this  description 
is  substantially  the  following:  If  the  thing  wanting,  or 
which  failed  to  be  done,  and  which  constitutes  the  defect 
in  the  proceedings,  is  something  the  necessity  for  which 
the  legislature  might  have  dispensed  with  by  prior  statute, 
then  it  is  not  beyond  the  power  of  the  legislature  to  dispense 
with  it  by  subsequent  statute.  And  if  the  irregularity  con- 
sists in  doing  some  act,  or  in  the  mode  or  manner  of  doing 
some  act,  which  the  legislature  might  have  made  imma- 
terial by  prior  law,  it  is  equally  competent  to  make  the 
same  immaterial  by  a  subsequent  law";  Cooley,  Const. 
Lim.  (6  ed.)  455-457  ;  Cooley,  Const.  Lim.  (7  ed.)  529-531. 
See,  also,  Stanley  v.  Smith,  15  Or.  505  (16  Pac.  174);  Orady 
V.  Dundon,  30  Or.  333  (47  Pac.  915);  Nottage  v.  Portland,  35 
Or.  539  (58  Pac.  883,  76  Am.  St.  Rep.  513). 

Now,  the  taking  by  a  guardian  of  an  oath  after  obtain- 
ing a  license  for  the  sale  of  his  ward's  property,  and  before 
fixing  the  time  and  place  of  sale,  was  a  matter  which  the 
legislature  might  have  dispensed  with  entirely  in  the  first 
instance.  It  did  not  affect  the  jurisdiction  of  the  court  to 
license  or  confirm  the  sale,  or  the  guardian  to  make  it,  but 
was  merely  a  matter  of  procedure.  It  was  therefore  within 
the  power  of  the  legislature  to  validate  by  subsequent  act 
a  departure  from  the  prescribed  method.  It  could  have 
authorized  the  sale  in  the  first  instance  without  requiring 
the  oath,  and  so  could  render  a  failure  to  take  it  immaterial 
by  subsequent  law.  This  is  the  effect  and  construction 
given  the  curative  act  now  under  consideration  by  this 
court  in  McCulloch  v.  Estes,  20  Or.  349  (25  Pac.  724)..  That 
was  an  action  by  a  ward  to  recover  lands  sold  by  his  guar- 
dian. The  objection  to  the  validity  of  the  sale  was  that 
the  guardian  did  not  give  "notice  of  the  time  and  place  of 
sale  as  prescribed  by  law'' — a  matter  made  as  important 
and  essential  by  Section  5611  as  the  taking  of  the  oath. 


246  Mills  v.  Mills.  [47  Or. 

The  court  said  :  "The  case  before  us  conies  directly  within 
the  purview  of  this  statute,  which  was  intended  to  obviate 
or  cure  such  defects  or  irregularities  as  is  sought  to  be 
made  available  in  this  action."  The  curative  act  of  1899 
did  not  attempt  to  amend,  repeal  or  modify  the  law  gov- 
erning a  sale  by  a  guardian  of  his  ward's  property,  but 
was  intended  to,  and  did,  cure  such  defects  in  proceedings 
already  had  as  did  not  go  to  the  question  of  jurisdiction. 
It  follows  that  the  judgment  must  be  affirmed,  and  it  is 
so  ordered.  Affirmed. 


Decided  4  December,  1005. 
MILLS  V.  MlliliS. 

83  Pac.  390. 


Divorce  for  Cruelty— Evidbnce  of  Violence. 

1.  Where,  In  a  suit  for  divorce  for  cruelty,  the  only  jiersonal  violence  shown 
U  in  defendant's  attempt  to  hold  plantiffaway  to  prevent  her  from  taking  forcible 
possesHlon  of  their  child,  and  Indicates  no  wilful  puri)08e  or  desire  on  his  part  to 
do  her  personal  injury,  It  Is  not  sulllclent  to  sustain  a  decree  in  her  faVor. 

Divorce  — Cruel  Language  — Equal  Capacity  of  Parties. 

2.  Although  a  husband  and  wife  quarreled  on  various  occasions,  during  which 
highly  unbecoming  language  was  used,  it  cannot  be  said  that  either  was  so  cruel 
toward  the  other  as  to  Justify  a  decree  of  divorce  where  it  appears  that  they  were 
equally  forceful,  ready  and  skillful  in  the  use  of  a  picturesque  and  varied  vocabu- 
lary. 

Divorce  —  Custody  of  Children. 

3.  A  divorce  having  been  granted  to  a  husband  on  account  of  the  adultery  of 
the  wife,  the  custody  of  children  not  so  young  as  to  require  a  mothers's  pen»onal 
attention  should  be  awarded  to  the  father,  subject  to  such  privilege  of  visitation 
as  may  seem  appropriate. 

From  Baker:    Samuel  White,  Judge. 

Suit  for  divorce  by  Lena  D.  Mills  against  William  E. 
Mills,  in  which  defendant  filed  a  cross-coraplaint  also  ask- 
ing a  divorce.  There  was  a  decree  dismissing  both  com- 
plaints, from  which  William  E.  Mills  appeals. 

Reversed. 

For  appellant  there  was  a  brief  over  the  names  of  Ohn- 
stead  &  Strayer  and  C  F.  Hyde,  with  an  oral  argument  by 
Mr.  W.  H.  Strayer. 


Dec.  1905.]  Mills  v.  Mills.  247 

For  respondent  there  was  neither  brief  nor  oral  argu- 
ment. 

Per  Curiam.  1.  This  is  a  suit  for  divorce  in  which 
each  party  is  asking  for  a  legal  separation  from  the  other  ; 
the  plaintiff  by  her  complaint,  and  the  defendant  by  his 
answer  by  way  of  cross-complaint.  The  basis  of  plaintiff's 
suit  is  cruel  and  inhuman  treatment ;  that  of  defendant 
alleged  acts  of  adultery  by  the  plaintiff.  Mrs.  Mills,  by  her 
own  testimony  and  that  of  some  other  witnesses,  shows 
that  on  two  occasions  the  defendant  choked  her  while 
angry  and  used  toward  her  some  vile  and .  opprobrious 
language.  As  to  the  personal  violence,  the  proofs,  on  the 
other  hand,  indicate  that  upon  each  occasion  the  parties 
were  engaged  in  an  attempt  each  to  retain  possession  of 
their  minor  child,  and  that,  if  any  violence  was  exerted  by 
defendant  toward  plaintiff,  it  was  only  to  hold  her  away 
so  as  to  prevent  her  from  taking  the  child  from  him.  We 
are  firmly  of  the  view  that  there  was  no  wilful  purpose  or 
desire  on  the  part  of  defendant  to  do  her  personal  injury, 
and  it  is  very  apparent  that  he  did  nothing  of  the  kind. 

2.  There  may  have  been  some  language  used  by  the  de- 
fendant towards  plaintiff  that  was  altogether  inexcusable, 
but  is  also  apparent  that  the  plaintiff  was  equally  as  force- 
ful in  the  same  direction  in  her  own  expressions  directed 
towards  the  defendant,  so  that  neither  party  can  claim  an 
advantage  on  that  ground.  As  it  pertains  to  the  alleged 
threat  to  kill,  the  preponderance  of  the  evidence  disproves 
it.    This  disposed  of  plaintiff's  cause  of  suit. 

3.  As  to  that  preferred  by  the  defendant,  we  are  firmly 
convinced  that  it  has  been  proven.  The  plaintiff  has 
doubtless  been  guilty  of  acts  of  adultery  with  one  Wid- 
dowson.  This  has  been  shown  by  a  reliable  witness  who 
came  upon  them  unawares  in  a  comprising  position,  and 
by  many  other  witnesses  who  have  taken  note  of  their 


248  LivESLEY  V.  Litchfield.  [47  Or. 

acts  and  demeanor  until  they  have  almost  become  a  public 
scandal.  The  plaintiff  and  Widdowson  deny  that  they 
have  been  guilty  of  any  such  unbecoming  acts  of  inde- 
cency, but  a  careful  reading  of  the  whole  evidence  con- 
victs them  in  our  minds  unquestionably  of  the  charges. 
It  is  unnecessary  in  a  case  of  this  nature  that  we  make 
extended  reference  to  the  evidence,  or  discuss  the  matter 
largely,  but  it  is  sufficient  that  we  are  convinced  that  the 
charges  have  been  proven.  These  considerations  lead  to 
a  reversal  of  the  decree  of  the  trial  court.  The  plaintiff 
being  in  the  fault,  and  because  of  her  loose  conduct,  the 
custody  of  the  minor  child  should  be  given  to  the  father. 
The  decree  of  this  court  will  therefore  be  that  the  defend- 
ant have  a  divorce  from  the  plaintiff,  and  that  he  have  the 
care  and  custody  of  the  minor  child,  subject  to  such  oppor- 
tunity to  see  and  visit  it  as  the  circuit  court  may,  upon 
proper  application,  determine.  Reversed. 


Argued  17  October,  decided  27  November,  1905. 

LIVESLEY  I.  LITCHFIELD. 

8S  Pac.  142. 

Elections  —  Constitutional  Right  to  Vote  —  Restrictions. 

1.  Every  person  posKesslng  the  qualifications  of  an  elector  as  prescribed  by 
the  constitution  of  the  State  in  which  he  lives  is  entitled  to  Vote  at  all  elections 
provided  by  such  constitution  and  by  laws  authorized  thereby,  and  the  legis- 
lature cannot  change  such  qualifications  in  any  degree  unless  authority  so  to  do 
is  conferred  by  the  constitution. 

F^or  instance:  The  qualifications  for  voting  in  Oregon  defined  by  Const.  Or. 
ArL  II,  g  2,  apply  to  voters  at  all  elections  in  this  State,  unless  some  exceptions 
can  be  justified  by  the  constitution  itself  or  by  some  legislative  act  not  thereby 
prohibited. 

Constitution  —Municipal  Restriction  on  Right  to  Vote. 

2.  Section  2  of  Article  XI  of  Constitution  of  Oregon,  authorizing  the  formation 
of  municipal  corporations  by  special  laws,  which  may  be  altered,  amended  or 
repealed,  and  Section  7  of  Article  VI,  authorizing  the  election  of  city  ofllceni  "in 
such  manner  as  maj'  be  prescribed  by  law,"  do  not  confer  on  the  legislature 
power  to  prescribe  the  qualifications  of  voters  at  municipal  elections,  the  word 
"manner"  in  said  Section  7  meaning  the  mode  or  particular  way  of  conducting 
the  election. 


Nov.  1905.]  LivESLEY  V.  Litchfield.  249 

HAtiEM  Charter  —  Restrigxion  on  Right  to  Vote. 

8.  The  provision  of  Salem  charter  (Sp.  Laws  1908,  pp.  8S7,  »51,  g  15),  prohibiting 
any  person  from  voting  at  any  election  of  said  city  who  has  not  paid  a  road  poll 
tax  for  the  year  In  which  he  offfers  to  vote,  unless  exempt  as  otherwise  In  said 
charter  provided,  is  void  as  in  conflict  with  Conht.  Or.  Art.  II,  g  '2,  prescribing  the 
qualifications  of  electors  at  all  elections  not  otherwise  provided  for  by  said  con- 
stitution. 

From  Marion:  George  H.  Burnett,  Judge. 

Statement  by  Mr.  Justice  Bean. 

This  is  an  action  for  damages  by  Charles  S.  Livesley 
against  G.  P.  Litchfield  and  David  Steiner.  The  object  of 
the  proceeding  is  to  test  the  constitutionality  of  the  pro- 
vision in  the  charter  of  the  City  of  Salem  prohibiting  any 
person  from  voting  at  a  city  election  **who  has  not  paid, 
unless  he  be  exempt  therefrom,  a  road  poll  tax  for  the  year 
in  which  he  offers  to  vote":  Sp.  Laws  1903,  351.  The 
plaintiff,  who  resided  in  the  city  and  possessed  all  the 
qualifications  of  a  voter  therein,  except  he  had  not  paid 
a  poll  tax,  tendered  his  vote  at  a  regular  election  for  city 
officers,  held  on  December  5,  1904,  but  a  majority  of  the 
judges  of  election  refused  to  receive  his  ballot  or  permit 
him  to  vote,  and  he  thereupon  brought  this  action  against 
them  to  recover  damages.  It  resulting  adversely  to  him, 
he  appeals.  Reversed. 

For  appellant  there  was  a  brief  with  oral  arguments  by 
Mr.  S.  T.  Richardson  and  Mr.  W,  E.  Richardson, 

For  respondents  there  was  a  brief  and  an  oral  argument 
by  Mr.  Henry  Johnson  Bigger. 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

1.  The  general  rule  is  that  the  electorate  of  a  state  or  any 
of  its  governmental  subdivisions  is  created  and  defined  by 
the  fundamental  law,  and  that  the  source  of  all  authority  to 
vote  at  any  popular  election  is  the  state  constitution.  Any 
citizen  possessing  the  qualifications  of  an  elector  as  de- 
fined by  that  instrument,  and  who  is  not  disqualified  by 
any  of  its  provisions,  is  entitled  to  the  right  of  suffrage, 


250  LivESLEY  V,  Litchfield.  [47  Or. 

and  it  is  not  within  the  power  of  the  legislature  to  deny, 
abridge,  extend  or  change  the  qualifications  so  prescribed: 
Cooley,  Const.  Lim.  (7  ed.),  899 ;  10  Am.  &  Eng.  Enc.  Law 
(2  ed.),  576.  Section  2  of  Article  II  of  the  constitution  of 
this  State  reads : 

"In  all  elections  not  otherwise  provided  for  by  this  con- 
stitution, every  white  male  citizen  of  the  United  States,  of 
the  age  of  twenty-one  years  and  upwards,  who  shall  have 
resided  in  the  State  during  the  six  months  immediately 
preceding  such  election,  and  every  white  male  of  foreign 
birth  of  the  age  of  twenty-one  years  and  upwards,  who 
shall  have  resided  in  this  State  during  the  six  months  im- 
mediately preceding  such  election,  and  shall  have  declared 
his  intention  to  become  a  citizen  of  the  United  States  one 
year  preceding  such  election,  conformably  to  the  laws  of 
the  United  States  on  the  subject  of  naturalization,  shall 
be  entitled  to  vote  at  all  elections  authorized  by  law." 

This  provision  is  by  its  terms  expressly  made  applicable 
to  all  elections  not  otherwise  provided  by  the  constitution. 
To  empower  the  legislature,  therefore,  to  add  to  or  abridge 
the  qualifications  of  a  voter  as  thus  defined,  some  other 
provision  of  the  constitution  must  be  pointed  out  which 
confers  such  authority  in  express  terms,  or  by  necessary 
implication. 

2.  The  only  provisions  bearing  on  the  question  now 
under  consideration  to  which  our  attention  has  been 
called  are  Section  2,  Article  XI,  and  Sections  6  and  7  of 
Article  VI, which  are  as  follows: 

"Corporations  may  be  formed  under  general  laws,  but 
shall  not  be  created  by  special  laws,  except  for  municipal 
purposes.  All  laws  passed  pursuant  to  this  section  may  be 
altered,  amended,  or  repealed,  but  not  so  as  to  impair  or  de- 
stroy any  vested  corporate  rights'':   Const.  Or.  Art.  XI,  §  2. 

"There  shall  be  elected  in  each  county,  by  the  qualified 
electors  thereof,  at  the  time  of  holding  general  elections, 
a  county  clerk,  treasurer,  sheriff,  coroner,  and  surveyor, 


Nov.  1905.]  LivESLEY  V.  Litchfield.  251 

who  shall  severally  hold  their  offices  for  the  term  of  two 
years":   Const.  Or.  Art.  VI,  §  6. 

"Such  other  county,  township,  precinct,  and  city  offi- 
cers as  may  be  necessary  shall  be  elected  or  appointed  in 
such  manner  as  may  be  prescribed  by  law'*:  Const.  Or. 
Art.  VI,  §  7. 

In  support  of  the  judgment  of  the  court  below  it  is  con- 
tended that  the  sections  just  quoted  vest  in  the  legislature 
plenary  power  to  create  corporations  for  municipal  pur- 
poses, and  to  prescribe  and  define  the  qualifications  of 
voters  at  elections  to  be  held  therein,  and  Harris  v.  Burr, 
32  Or.  348  (52  Pac.  17, 39  L.  R.  A.  768);  Buckner  v.  Gordon, 
81  Ky.  665;  McMahon  v.  Savannah,  66  Ga.  217  (42  Am. 
Rep.  65) ;  Town  of  Valverde  v.  Shattuck,  19  Colo.  104  (34 
Pac.  947,  41  Am.  St.  Rep.  208) ;  Hanna  v.  Young,  84  Md. 
179  (35  Atl.  674, 34  L.  R.  A.  55,  57  Am.  St.  Rep.  396) ;  and 
State  V.  Dillon,  32  Fla.  545  (14  South.  383,  22  L.  R.  A.  124), 
are  cited  in  support  of  this  position.  Harris  v.  Burr,  32 
Or.  348  (39  L.  R.  A.  768,  52  Pac.  17),  involved  the  validity 
of  an  act  of  the  legislature  conferring  upon  women  the 
right  to  vote  at  school  district  elections,  and  the  court, 
after  reviewing  at  length  the  legislation  in  respect  to  the 
qualifications  of  voters  at  school  elections  prior  to,  at  the 
time,  and  since  the  adoption  of  the  constitution,  concluded 
that  in  view  of  such  legislation  and  of  the  fact  that  the 
constitution  does  not  name  or  mention  school  officers  or 
school  elections,  but  in  express  terms  relegates  to  the  leg- 
islature the  duty  of  establishing  '*an  uniform  and  general 
system  of  common  schools"  (Const.  Or.  Art.  VIII,  §  3),  it 
was  competent  for  it  to  prescribe  the  qualifications  of  a 
voter  at  a  school  district  meeting.  "The  power  ascribed 
to  the  legislature  under  the  constitution,"  says  Mr.  Justice 
WoLVBRTON,  **to  providc  for  the  establishment  of  a  uni- 
form and  the  general  system  of  common  schools,  carries 
with  it  plenary  power  to  establish  the  unit  of  that  system, 


252  LivESLEY  V,  Litchfield.  [47  Or. 

denominated  a  school  district,  to  determine  what  oflBcers 
shall  administer  its  affairs,  who  and  what  manner  of  per- 
sons shall  be  eligible  to  oflBce,  and  how  and  by  whom  they 
should  be  chosen.  The  elective  franchise  conferred  by 
Section  2  of  Article  II  does  not,  nor  was  intended  to,  fix 
and  define  the  qualification  of  voters  at  school  meetings, 
but  was  designed  only  to  govern  in  all  general  and  special 
elections  not  otherwise  provided  for  by  the  constitution, 
and  applies  to  the  election  of  all  officers  known  to  the  con- 
stitution, as  well  as  to  such  as  ma}^  be  provided  for  there- 
under, aside  from  those  provided  for  under  the  special 
power  of  the  legislature  to  establish  a  uniform  and  general 
system  of  common  schools."  It  will  thus  be  seen  that  this 
case  proceeds  wholly  on  the  theory  that  the  constitution 
has  in  express  terms  authorized  and  empowered  the  legis- 
lature to  establish  a  system  of  common  schools,  and  that 
it  intended  [to]  and  did  confer  upon  that  body  the  power 
to  declare  the  qualifications  of  voters  for  district  officers. 
Such  elections  are  therefore  ^'otherwise  provided"  by  the 
constitution,  and  expressly  exempted  from  the  operation 
of  Section  2,  Article  II.  But  no  such  provision  is  to  be 
found  in  the  constitution  as  it  respects  municipal  corpo- 
rations. 

The  legislature  has  power  to  create  such  corporations 
by  special  laws,  and  **to  prescribe  by  law"  the  *^manner" 
of  the  election  or  appointment  of  the  officers  thereof.  The 
power  thus  conferred  is  not  like  that  to  establish  and  or- 
ganize school  districts,  but  more  nearly  resembles  that 
granted  for  the  organization  of  counties.  A  municipal 
corporation  is  but  a  governmental  agency  or  local  organi- 
zation for  governmental  purposes.  Its  officers  are  none 
the  less  governmental  officers  because  elected  or  chosen 
by  the  people  of  a  particular  locality.  It  is  difficult,  if  not 
impossible,  to  conceive  that,  when  Section  7  of  Article  VI 
declares  that  the  officers  of  a  city  may  be  elected  or  ap- 


Nov.  1905.]  LivESLEY  V.  Litchfield.  253 

pointed  as  prescribed  by  law,  it  did  not  contemplate  that 
the  election,  if  held,  should  be  by  the  qualified  electorate 
of  the  municipality,  for,  as  said  by  Mr.  Justice  Chris-. 
TiANCY,  in  People  v.  Hurlburt,  24  Mich.  44  (9  Am.  Rep. 
103):  **It  may  be  said  with  certainty  that,  wherever  in 
the  constitution  the  election  of  an  officer  is  provided  for, 
it  means  an  election  by  the  electors  of  the  State,  if  it  be  a 
state  office,  or  of  the  district  or  political  subdivision  for 
which  he  is  to  be  elected,  unless  the  constitution  itself,  as 
to  any  particular  election,  provides  otherwise." 

The  authority  given  by  Section  7  of  Article  VI  to  pre- 
scribe "the  time  and  manner"  in  which  municipal  oflBcers 
may  be  elected  or  appointed  does  not,  we  think,  include 
the  power  to  determine  what  shall  constitute  a  legal  voter. 
The  Constitution  of  Michigan  declares  that  the  legislature 
shall  ^'provide  for  the  incorporation  and  organization  of 
cities  and  villages,"  and  that  ^'judicial  oflBcers  of  cities 
and  villages  shall  be  elected  and  all  other  officers  shall  be 
elected  or  appointed  at  such  time  and  in  such  manner  as 
the  legislature  may  direct."  The  legislature  passed  an  act 
conferring  upon  women  the  right  to  vote  in  all  village  and 
city  elections,  but  it  was  held  invalid  because  in  violation 
of  the  section  of  the  constitution  prescribing  who  shall  be 
electors  and  entitled  to  vote  in  all  elections.  The  court 
said:  "The  authority  to  direct  the  time  and  manner  in 
which  judicial  officers  shall  be  elected,  and  the  other  offi- 
cers elected  or  appointed,  does  not  involve  the  power  to 
determine  who  shall  constitute  the  electorate.  The  word 
'manner,'  it  is  true,  is  one  of  large  signification,  but  it 
is  clear  that  it  cannot  exceed  the  subject  to  which  it  be- 
longs. It  relates  to  the  word  ^elected.'  The  constitution 
had  already  provided  for  electors,  and  when  it  provides 
that  an  officer  shall  be  elected  it  certainly  contemplates 
an  election  by  the  electorate  which  it  has  constituted.  No 
other  election  is  known  to  the  constitution,  and,  when  it 


254  LivESLEY  V.  Litchfield.  [47  Or. 

provides  that  the  legislature  may  direct  the  manner  in 
which  an  officer  shall  be  elected,  it  simply  empowers  the 
legislature  to  provide  the  details  for  the  holding  of  such 
election.  The  machinery  of  government  differs  in  its  de- 
tails in  cities,  villages,  and  townships,  and  there  must 
necessarily  be  differences  in  methods  and  officers  to  ad- 
minister the  election  laws'*:  Coffin-  v.  Election  ComWs^  97 
Mich.  188,  194  (56  N.  W.  567,  568,  21  L.  R.  A.  662). 

The  same  construction  was  given  to  the  word  "manner" 
in  a  like  constitutional  provision  by  the  Supreme  Court  of 
Illinois,  in  People  exrel  v.  English,  139  111.  622  (29  N.  E.  678, 
15  L.  R.  A.  131).  In  that  case  the  relator,  a  female,  claimed 
the  right  to  vote  for  county  school  superintendent.  The 
constitution  printed  that  *^there  may  be  a  county  superin- 
tendent of  schools  in  each  county,  whose  qualifications, 
duties  and  compensation  and  the  time  and  manner  of  his 
election  and  term  of  office  shall  be  prescribed  by  law." 
The  court  held  the  law  conferring  the  right  upon  women 
to  vote  for  such  officer  unconstitutional,  saying:  "The 
constitution  having  thus  made  provision  for  such  officer, 
and  for  his  and  her  ^election,*  and  having  prescribed,  in 
section  1  of  article  7  (111.  Const.),  the  qualifications  essen- 
tial to  entitlel  a  person  to  vote  at  *any  election,'  it  must  be 
presumed  that  it  was  and  is  the  true  intent  and  meaning 
of  that  instrument  that  no  person  shall  have  the  right  to 
vote  for  a  county  superintendent  of  schools  who  does  not 
possess  such  qualifications.  *  *  Said  section  5  (art.  8)  pro- 
vides, not  only  that  the  qualifications,  powers,  duties,  com- 
pensation and  term  of  office  of  the  county  superintendent 
of  schools  shall  be  prescribed  by  law,  but  also  that  the 
'time  and  manner  of  election'  of  such  superintendent 
'shall  be  prescribed  by  law.'  What  is  meant  by  the  ex- 
pression 'manner  of  election?'  Was  it  intended  thereby 
to  give  to  the  legislature  the  power  of  prescribing  the 
qualifications  which  would  entitle  persons  to  vote  at  any 


Nov.  1905.]  LiVBSLEY  V,  Litchfield.  255 

election  for  such  county  superintendent  ?  The  word  *man- 
ner'  is  usually  defined  as  meaning  way  of  performing  or 
executing,  method,  custom,  habitual  practice,  etc.  ♦  ♦ 
[It]  indicates  merely  that  the  legislature  may  provide  by 
law  the  usual,  ordinary,  or  necessary  details  required  for 
'  the  holding  of  the  election." 

The  Michigan  and  Illinois  cases  referred  to  are  much  to 
the  purpose  in  the  present  discussion,  because  the  courts 
of  each  of  these  States  have  held  that  under  a  constitution 
like  ours,  imposing  on  the  legislature  the  duty  of  provid- 
ing for  and  establishing  a  common  school  system,  it  is 
competent  to  confer  the  right  to  vote  at  school  elections 
upon  women,  and  these  cases  were  relied  upon  as  supply- 
ing the  conclusion  reached  in  Harris  v.  Burr^  32  Or.  348 
(39  L.  R.  A.  768,  52  Pac.  17);  Plummer  y.Yost,  144  111.  68 
(33  N.  E.  191,  19  L.  R.  A.  110);  Belles  v.  Burr,  76  Mich.  1 
(43  N.  W.  24).  The  cases  cited  from  these  States  illustrate 
and  point  out  the  distinction  between  the  right  to  vote  at 
school  district  meetings  and  at  an  election  for  city  and 
municipal  officers. 

The  Kentucky,  Maryland,  Georgia,  Colorado,  and  Flor- 
ida cases  all  involved  the  right  to  vote  at  municipal  elec- 
tions, but  the  decisions  were  made  under  constitutions 
essentially  different  from  ours.  The  Constitution  of  Ken- 
tucky provided  that  **every  free  white  male  citizen,"  etc., 
**shall  be  a  voter"  (3d  Const.  Ky.  art.  2,  §  8),  without  un- 
dertaking to  designate  at  what  election  or  for  what  officer 
the  vote  might  be  cast,  and  the  court  held,  considering 
this  section  in  connection  with  other  provisions  of  the 
constitution,  that  it  was  intended  to  apply  only  in  the  elec- 
tion of  constitutional  officers,  as  distinguished  from  those 
created  by  legislative  act.  Our  constitution,  however,  pre- 
scribes the  qualifications  of  voters  "in  all  elections  not 
otherwise  provided  by  this  constitution,"  and  "at  all  elec- 
tions prescribed  by  law,"  so  that,  in  place  of  being  appli- 


256  LivESLEY  V.  Litchfield.  [47  Or. 

cable  to  constitutional  officers  only,  it  is  expressly  made 
applicable  to  all  elections  authorized  by  law,  unless  the 
constitution  itself  otherwise  provides.  The  power  to  take 
from  or  add  to  the  qualifications  of  a  voter,  as  prescribed 
in  Section  2  of  Article  II,  at  any  election,  must  be  found 
in  that  instrument.  The  qualification  of  a  voter  as  thus* 
defined  is  intended  to  apply  to  the  election  of  all  officers, 
whether  provided  by  the  constitution  or  by  a  law  author- 
ized thereby,  unless  authority  for  the  exemption  can  be 
found  in  the  instrument  itself. 

The  Constitution  of  Maryland  named  and  defined  the 
qualifications  of  voters  in  the  state  at  large  and  in  the  City 
of  Baltimore,  and  in  general  terms  authorized  the  creation 
of  other  corporations  for  municipal  purposes,  thus  leaving 
to  the  legislature,  so  the  court  held,  the  power  to  add  to 
the  qualifications  of  voters  residing  within  the  corporate 
limits  of  a  town  so  created  any  reasonable  restriction  it 
might  deem  proper.  The  Constitution  of  Georgia,  after 
defining  the  qualification  of  voters,  empowered  the  legis- 
lature to  prescribe  from  time  to  time  for  the  registration 
of  all  voters.  It  was  held  that  a  law  requiring  the  pay- 
ment of  a  certain  sum  in  lieu  of  poll  tax  as  a  condition  to 
the  right  of  registration  for  a  city  election  was  not  adding 
to  the  qualification  of  voters,  but  was  a  mere  statutory 
requirement,  designed  **to  secure  the  discharge  of  the 
duties  citizens  owed  the  municipal  government  and  to  pro- 
tect the  purity  of  the  ballot."  The  Colorado  constitution 
defined  the  qualification  of  voters  **at  all  elections,"  and 
the  court  held  that  it  applied  only  to  elections  of  "public 
officers,"  and  not  to  a  law  for  the  dissolution  and  annex- 
ation of  contiguous  cities  and  towns.  The  F'lorida  consti- 
tution defined  the  qualification  of  ejectors  at  all  elections 
*'under  this  constitution,"  and  it  was  held  that  it  did  not 
apply  to  municipal  elections  because  they  were  not  held 
under  the  constitution.    None  of  the  cases  are,  therefore, 


Nov.  1905.]  Grimberg  v.  Columbia  Packers'  Assoc.     257 

in  point  or  authority  under  our  constitution,  which  has 
specially  prescribed  the  qualification  of  voters  at  all  elec- 
tions not  otherwise  provided  in  that  instrument  itself. 

3.  Without  pursuing  the  discussion  further,  we  are  all 
agreed  that  the  provision  of  the  Salem  charter  in  question 
is  void,  and  this  conclusion  finds  support  in  St,  Joseph,  etc,, 
Ry.  Co,  V.  Buchanan  County  Court,  39  Mo.  486;  Allison  v. 
Blake,  57  N.  J.  Law,  6  (29  Atl.  417,  25  L.  R.  A.  480);  and 
People  V.  Van  Bokkelen,  73  N.  C.  198  (21  Am.  Rep.  465),  in 
addition  to  the  authorities  already  referred  to. 

The  judgment  of  the  court  below  will  be  reversed,  and 
the  cause  remanded.  Reversed. 


Argued  U  October,  decided  27  November,  1906. 
GBIMBEBQ  v.  COLUMBIA  FACKEBS'  ASSOC. 

8»  Pac.  194. 

Shipping  — PRK8UMPTION  as  to  Natuuk  of  Charter. 

1.  A  charter  party  is  presumptively  a  contract  of  aflVelghtment  rather  than 
a  demiiie  of  the  ship,  and  will  be  so  construed  unless  its  terms  Indicate  clearly  to 
contrary. 

Charters— General  Rule  of  Construction. 

2.  Charter  parties  are  subject  to  the  same  rules  as  are  other  contracts,  and 
the  intention  of  the  parties  must  control,  when  ascertained. 

Charters  —  Demise  or  Contract  for  Special  Service. 

3.  Where  a  charter  party  transfers  to  the  charterer  the  entire  command,  pos- 
session and  control  of  the  vessel,  the  charterer  is  owner  for  the  service  stipulated 
for ;  but  where  a  charter  party  is  merely  an  agreement  for  the  use  of  the  ves.sel, 
the  general  owner  at  the  same  time  retaining  command,  possession  and  control 
over  her  navigation,  the  charterer  is  a  contractor  for  the  specific  service,  and  the 
responsibilities  of  the  owner  are  not  changed. 

Meaning  of  "Freighting"  in  Shipping  Charter. 

4.  The  word  "freighting"  in  a  charter  party,  whereby  the  owner  of  a  vessel 
agrees  on  the  *'f relighting"  and  chartering  thereof  to  the  charterer  for  a  voj'age, 
means  a  loading  with  goods  for  transportation,  and  does  not  Indicate  a  demise 
of  the  vessel  to  the  charterer. 

Meaning  of  "Chartering"  in  Shipping  Charter. 

5.  The  word  "chartering,"  in  a  charter  party  whereby  the  owner  of  a  vessel 
agrees  on  the  freighting  and  "chartering"  thereof  to  the  charterer  for  a  voyage, 
does  not  necessarily  mean  a  letting  of  the  vessel  by  way  of  demise,  but  is  equally 
consistent  with  the  Idea  of  a  contract  of  affVelghtmenU 

17  Or. 17 


258         Grimberg  v.  Columbia  Packers'  Assoc.     [47  Or. 

CONSTBUCTION  OF  STIPULATIONS  IN  CUABTEB. 

6.  A  charter  party  binding  the  owner  to  keep  the  vessel  during  the  voyage 
well  fitted,  tackled,  etc.,  giving  the  charterer  the  sole  use  of  the  vessel,  except  the 
private  apartments  of  the  mastf^r  In  the  cabin,  and  providing  that  no  goods 
shall  be  laden  on  board,  except  for  the  charterer,  gives  the  owner  an  oversight 
over  the  vessel  during  the  voyage,  and  binds  him  to  freighting  her,  and  Is  there- 
fore Inconsistent  with  the  Idea  of  a  demise  of  her  to  the  charterer. 

Idem. 

7.  A  provision  in  a  charter  party,  whereby  the  charterer  ciovenauts  to  charter 
and  hire  a  vessel  and  to  pay  for  the  charter,  Including  the  captain's  salary, 
during  the  voyage,  a  specified  sum  on  the  acceptance  of  the  vessel  and  a  specified 
sum  per  month  until  the  vessel  is  discharged  of  her  cargo,  is  not  inconsistent 
with  a  contract  of  affreightment  only,  where  the  provision  is  contained  in  a 
covenant  on  the  part  of  the  charterer,  and  the  owner  has  not  on  his  part  em- 
ployed any  words  operative  as  a  demise. 

Idem. 

8.  A  charter  party  contained  no  technical  words  of  demise,  nor  wcm  the  vessel 
let  to  hire.  The  charterer  covenanted  to  "charter  and  hire."  The  owner  pro- 
vided the  master.  The  charterer  engaged  the  crew  and  bound  himself  to  pay  all 
port  charges  and  labor  bills  and  provisions  during  the  voyage,  and  to  "deliver" 
the  vessel  in  port  of  destination  to  the  owner,  and  agreed  to  employ  the  vessel 
only  in  lawful  trade.  The  mast-er's  wages  were  Included  in  monthly  payments 
to  be  made  for  the  charter.  The  first  payment  was  to  be  made  on  the  day  of  the 
"acceptance"  of  the  vessel  by  the  charterer.  The  owner  agreed  to  place  the  vessel 
at  a  wharf  selected  by  the  charterer,  at  which  time,  the  vessel  being  safely 
moored,  the  charter  should  "commence,"  and  if  the  vessel  was  not  so  delivered 
the  charterer  migh  t  cancel  the  charter.  Held  that,  though  the  words  "charter 
and  hire"  and  "acceptance"  and  "deliver"  indicated  a  demise,  they  were  not  in- 
consistent with  a  contract  of  affreightment  merely,  and  in  view  of  the  absence  of 
words  of  demise  and  the  presumption  against  a  demise  the  charter  party  must 
be  construed  as  one  of  afnrelghtment  only. 

From  Clatsop:  Thomas  A.  McBride,  Judge. 

Action  by  Charlotte  Grimberg,  administratrix  of  Eman- 
uel Grimberg,  deceased,  against  the  Columbia  River  Pack- 
ers' Association.  Plaintiff  sues  to  recover  damages  for  the 
death  of  Emanuel  Grimberg,  alleged  to  have  been  caused 
caused  through  the  negligence  of  the  defendant.  It  is 
alleged  that  Grimberg  was  in  the  employ  of  the  defend- 
ant in  the  capacity  of  a  sailor  on  the  vessel  St.  Nicholas, 
under  charter  from  George  W.  Hume  &  Co.,  of  San  Fran- 
cisco, who,  being  ordered  aloft,  obeyed,  but  that,  while  in 
the  rigging  of  the  vessel,  and  using  a  becket  on  the  miz- 
zen  topgallant  yard,  it  gave  way,  whereby  he  was  precipi- 
tated to  the  deck  of  the  vessel,  sustaining  injuries  from 
which  he  died.    The  alleged  carelessness  consists  in  allow- 


Nov.  1905.]  Grimberg  v,  Columbia  Packers' Assoc.     259 

ing  the  becket  to  become  unsafe  and  insecure.  The  acci- 
dent is  alleged  to  have  happened  on  the  ship's  homeward 
voyage  from  Nushagak  Harbor,  Alaska,  to  the  port  of  As- 
toria, Oregon.  When  plaintiff  concluded  her  evidence  at 
the  trial,  the  defendant  moved  for  a  nonsuit,  which  being 
granted,  the  defendant  had  judgment,  and  plaintiff  ap- 
peals. Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  F.  D. 
Winton  and  Noland  &  Smith,  with  an  oral  argument  by 
Mr.  George  Noland, 

For  respondent  there  was  a  brief  over  the  nam^  of  Ful- 
ton Bro8,f  with  an  orul  argument  by  Mr.  George  Clyde 
Fulton. 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

From  the  allegations  in  the  complaint  the  accident  must 
be  deemed  to  have  happened  upon  the  high  seas,  for  the 
vessel  was  on  her  homeward  voyage  from  her  port  of  des- 
tination in  Alaska  to  her  port  of  final  discharge  in  Oregon. 
The  theory  of  plaintiff  is  that  defendant  was  the  owner  of 
the  vessel  pro  hac  vice  for  the  voyage,  and.  therefore,  being 
in  possession  and  command,  was  responsible  for  the  acci- 
dent and  liable  in  damages  for  the  injury  sustained.  The 
defendant  combats  the  proposition,  and  contends  that  the 
liability  is  with  Hume  &  Co.,  the  general  owners  of  the  ves- 
sel. It  is  practically  conceded  by  appellant's  counsel  that, 
unless  the  defendant  was  the  lessee  of  the  vessel  St.  Nich- 
olas, under  a  demise  from  the  owner,  it  is  not  liable  for  the 
damages  sustained.  Whether,  therefore,  the  charter  party 
between  Hume  &  Co.  and  the  defendant,  touching  the 
navigation  of  the  vessel,  constitutes  a  demise  thereof,  or 
is  a  mere  contract  of  affreightment,  is  at  the  outset  a  ma- 
terial, if  not  the  vital,  question  for  our  consideration. 

The  charter  party  was  made  and  concluded  in  San  Fran- 
cisco between  George  W.  Hume  &  Co.  of  the  first  part  and 


260         Grimberg  V,  Columbia  Packers'  Assoc.     [47  Or. 

the  Columbia  River  Packers'  Association  of  the  second 
part.  The  following  is  an  abstract  of  the  provisions  of  the 
charter  party,  material  for  our  purpose,  viz.:  That  the  party 
of  the  first  part  *'does  covenant  and  agree  on  the  freighting 
and  chartering  of  the  said  vessel  unto"  the  second  party 
"for  one  voyage  from  the  port  of  San  Francisco,  Califor- 
nia, with  option  via  Astoria,  Oregon,  to  Nushagak  Harbor, 
Bristol  Bay,  Alaska,  and  thence  to  Astoria  or  Puget  Sound, 
final  port  of  destination,''  and  "does  engage  that  the  said 
vessel,  in  and  during  the  said  voyage,  shall  be  kept  tight, 
staunch,  well  fitted,  tackled,  and  provided  with  every  requi- 
site necessary  for  such  a  voyage.  That  the  whole  of  such 
vessel,  except  the  private  apartments  of  the  master  in  the 
cabin,  and  his  navigation  room,  and  necessary  room  on  the 
ship  for  sails  and  necessary  extra  tackle,  shall  be  at  the  sole 
use  and  disposal  of  the"  second  party  "during  the  voyage 
aforesaid ;  and  that  no  goods  or  merchandise  whatever 
shall  be  laden  on  board  otherwise  than  for  said  party  of 
the  second  part  or  its  agent  without  its  consent."  That 
the  second  party  "does  covenant  and  agree  ♦  ♦  to  charter 
and  hire  said  vessel  as  aforesaid,"  and  to  pay  "for  the 
charter  of  said  vessel,  including  the  captain's  salary,  dur- 
ing the  voyage  aforesaid"  $1,500  "on  the  day  of  acceptance 
of  said  vessel  alongside  of  the  wharf  in  San  Francisco,  and 
thereafter  fifteen  hundred  dollars  monthly  in  advance  and 
pro  rata  for  fractional  part  of  a  month,  until  said  vessel  is 
discharged  of  all  her  cargo  in  Astoria,  Oregon,  or  Puget 
Sound,  the  final  port  of  destination.  It  is  further  agreed" 
that  the  second  party  "shall  pay  all  wages  of  crew  (except- 
ing captain)  and  all  port  charges  and  labor  bills  from  the 
date  this  charter  party  commences,  and  to  furnish  all  nec- 
essary provisions,  fuel,  water,  and  lights  during  the  whole 
of  said  voyage,  and  at  the  termination  of  this  charter  to 
deliver  the  said  vessel  in  port  of  Astoria  or  Puget  Sound 
to  the"  first  party  "in  as  good  condition  (reasonable  wear 


Nov.  1905.]  Grimberg  v.  Columbia  Packers*  Assoc.     261 

and  tear  excepted)  as  she  is  at  the  commencement  of  this 
charter,  dangers  of  the  sea  and  navigation,  and  acts  of 
God  and  the  elements,  and  fire  excepted,"  and  that  it  will 
"employ  said  vessel  only  in  lawful  trade,  and  no  goods  or 
merchandise  shall  be  laden  on  board  thereof  for  the  pur- 
pose of  unlawful  trading."  That  the  first  party  '*will  place 
the  aforesaid  vessel,  with  swept  hold  ready  for  cargo  ♦  * 
alongside  of  such  safe  wharf  in  San  Francisco  as  the  party 
of  the  second  part  may  direct,  «  «  at  which  time,  said 
vessel  being  safely  moored,  said  charter  shall  commence," 
but  that,  if  **said  ship  shall  not  be  delivered  to  the  party 
of  the  second  part  in  the  manner  and  at  the  time  desig- 
nated, then  the  party  of  the  second  part  may  at  its  option 
cancel  this  charter";  and  that,  "in  case  the  said  vessel  be 
lost  or  wrecked,"  the  second  party  shall  pay  to  the  first 
party  "the  freight  under  this  charter  up  to  the  day  the 
said  vessel  is  lost  or  wrecked,  and  in  case  the  said  vessel 
shall  return  to  this,  or  any  other  port,  unable  to  complete 
the  said  voyage,  this  charter  shall  cease  and  terminate." 
The  second  party  further  agrees  that  "on  the  delivery  of 
said  vessel  at  the  termination  of  the  charter  she  shall  be 
clear  and  free  of  any  liens  for  services  performed  to  or  on 
board  the  same,  and  for  materials  furnished.  Payments 
for  services  or  materials  are  by  this  charter  party  required 
to  be  made  by  the  party  of  the  second  part.  That  she  shall 
be  free  from  all  or  any  claims  or  demands  or  liens  for 
breach  of  passengers  or  carrying  contract,  unless  the  dam- 
ages caused  shall  be  by  reason  of  the  unseaworthiness  of 
the  vessel,  but  not  otherwise,"  and  that  the  second  party 
shall  "at  all  times  have  enough  men  aboard  to  properly 
care  for  ship  and  her  safety."  That  the  first  party  "shall 
furnish  and  supply  said  ship  with  sufficient  tackle,  gear, 
and  falls  to  handle  cargo,  and  necessary  lines  for  moor- 
ings." 


262        Grimberg  v.  Columbia  Packers^  Assoc.     [47  Or. 

1.  The  question  presented  arises  almost  wholly  upon  a 
construction  of  the  charter  party  for  there  are  but  few 
extraneous  facts  that  shed  any  light  upon  the  subject, 
which  is  whether  the  agreement  constituted  a  demise  of 
the  vessel  to  the  defendant  or  was  merely  a  contract  pf 
affreightment,  the  general  owners  retaining  the  control, 
management  and  navigation  thereof.  It  is  well  to  observe 
at  the  outset  that  the  presumption  primarily  is  against  a 
demise,  and  the  contract  is  to  be  construed  as  one  for  an 
affreightment,  unless  the  terms  show  a  clear  intendment 
to  the  contrary.  Say  the  learned  authors  of  the  American 
and  English  Encyclopaedia  of  Law  (2  ed.),  vol.  7,  p.  167 : 
"The  presumption  is  that  the  ownership  of  the  vessel,  even 
during  the  period  covered  by  the  charter  party,  continues 
in  the  general  owner ;  and,  unless  the  intention  to  transfer 
the  possession  and  ownership  to  the  charterer  is  unequiv- 
ocally manifested  by  the  contract,  a  charter  party  will  not 
be  treated  as  a  lease  or  demise  of  the  ship,  but  will  be 
treated  as  a  contract  of  affreightment."  So,  in  Reed  v. 
United  States,  78  U.  S.  (11  Wall.)  591,  601  (20  L.  Ed.  220), 
Mr.  Justice  Clifford,  says:  **Courts  of  justice  are  not 
inclined  to  regard  the  contract  as  a  demise  of  the  ship,  if 
the  end  in  view  can  conveniently  be  accomplished  with- 
out the  transfer  of  the  vessel  to  the  charterer,  but  where 
the  vessel  herself  is  demised  or  let  to  hire,  and  the  general 
owner  parts  with  the  possession,  command,  and  navigation 
of  the  ship,  the  hirer  becomes  the  owner  during  the  term 
of  the  contract,  and,  if  need  be  he  may  appoint  the  master 
and  ship  the  mariners,  and  he  becomes  responsible  for 
their  acts."  The  burden,  therefore,  lies  with  the  plaintiff 
to  overcome  this  presumption. 

2.  About  the  only  extraneous  evidence,  important  to  the 
inquiry,  is  that  the  decedent  was  employed  by  the  defend- 
ant at  Astoria,  Oregon,  in  the  capacity  of  a  sailor  on  the 
voyage,  and  others  were  so  employed  by  defendant  for  a 


Nov.  1905.]  Grimbkrg  v,  Columbia  Paokbrs'  Assoc.     263 

like  service ;  that  they  shipped  on  the  vessel  at  Astoria ; 
that  there  were  three  mates  in  the  service  of  the  ship; 
and  that  the  second  mate  directed  the  deceased  to  go  aloft, 
which  order  heing  obeyed,  he  met  with  the  mishap  in 
question,  causing  his  death.  Aside  from  the  bearing  this 
evidence  may  have  as  showing  what  was  done  in  pur- 
suance of  the  charter  party,  the  instrunient  itself  must  be 
construed  as  other  contracts,  and,  when  the  true  intend- 
ment of  the  parties  is  ascertained,  it  must  prevail.  We 
should  keep  in  mind,  however,  the  presumption  applica- 
ble, so  that  the  doubt,  if  one  exists,  may  be  resolved  in 
favor  of  a  contract  of  affreightment,  rather  than  a  demise 
of  the  vessel.  See,  further,  Adams  v.  Homtyer,  45  Mo.  54^ 
(100  Am.  Dec.  391);  and  Certain  Logs  of  Mahogany,  2 
Sumn.  589  (Fed.  Cas.  No.  2559). 

3.  The  general  rule  of  construction  relating  to  the  char- 
ter party  is  that  if  the  vessel,  the  subject  of  the  agreement, 
be  let  so  that  there  is  a  transfer  or  relinquishment  to  the 
charterer  of  the  entire  command,  possession  and  subse- 
quent control,  he  will  be  treated  as  owner  for  the  time 
being,  that  is,  for  the  voyage  or  particular  service  stipu- 
lated for.  However,  if  the  charter  party  is  but  an  agree- 
ment or  covenant  for  the  use  of  the  vessel  or  some  desig- 
nated part  thereof,  the  general  owner  at  the  same  time 
retaining  command,  possession  and  control  over  its  navi- 
gation, the  charterer  must  be  regarded  as  a  contractor 
only  for  a  designated  or  specific  service,  which  does  not 
alter  the  duties  and  responsibilities  of  the  owner.  In  the 
one  case  the  charter  party  operates  as  a  lease  or  demise 
of  the  vessel,  whereby  the  lessee  assumes  the  duties  and 
liabilities  in  a  large  measure,  at  least,  of  the  owner ;  while 
in  the  other  the  agreement  is  for  a  special  service  to  be 
rendered  by  the  owner  of  the  vessel :  Reed  v.  United  States, 
78  U.  S.  (11  Wall.)  591, 601  (20  L.  Ed.  220),  **A11  the  cases 
agree,"  says  Mr.  Justice  Field,  in  Leary  v.  United  States, 


264        Grimberg  v.  Columbia  Packers*  Assoc.     [47  Or . 

81  U.  S.  (14  Wall.)  607,  611  (20  L.  Ed.  756),  "that  entire 
command  and  possession  of  the  vessel,  and  consequent 
control  over  its  navigation,  must  be  surrendered  to  the 
charterer  before  he  can  be  held  as  special  owner  for  the 
voj'age  or  other  service  mentioned.*'  "But,"  says  Mr.  Jus- 
tice Story,  in  Marcardier  v.  Chesapeake  Ins.  Co,,  12  U.  S, 
(8  Cranch),  38,  48  (3  L.  Ei.  481),  "where  the  general  owner 
retains  the  possession,  command,  and  navigation  of  the 
ship,  and  contracts  to  carry  a  cargo  on  freight  for  the  voy- 
age, the  charter  party  is  considered  as  a  mere  affreight- 
ment, sounding  in  covenant,  and  the  freighter  is  not 
clothed  with  the  character  or  legal  responsibility  of  owner- 
ship." See,  also,  United  States  v.  Shea,  152  U.  S.  179  (14 
Sup.  Ct.  519, 38  L.  Ed.  403);  and  Emery  v.  Hersey,  4  Green- 
leaf,  404  (16  Am.  Dec.  268).  So  that  the  distinguishing 
feature  between  a  demise  of  the  ship,  whereby  the  legal 
responsibilities  of  ownership  are  transferred  to  and  as- 
sumed by  the  charterer,  and  an  agreement  for  affreight- 
ment, is  clear,  and  the  main  difficulty  lies  in  determining 
what  the  parties  intended  by  the  charter  party,  consider- 
ing the  language  in  which  it  is  clothed. 

4.  The  first  clause  of  the  charter  party  consists  exclu- 
sively of  words  of  covenant,  and  not  of  demise.  They  are 
that  the  first  party  "does  covenant  and  agree  on  the 
freighting  and  chartering  of  the  said  vessel  unto"  the  sec- 
ond party  "for  one  voyage."  "Freighting"  signifies  a 
loading  with  goods  or  other  commodities  for  transporta- 
tion :  Webster's  Dictionary. 

5.  The  word  "chartering"  does  not  necessarily  mean  a 
letting  of  the  ship  by  way  of  demise,  and  is  equally  as  con- 
sistent with  the  idea  of  a  contract  for  affreightment:  Ross 
V.  Charleston  M.  &  S.  Transp,  Co.,  42  S.  C.  447  (20  S.  E. 
285). 

6.  Following  this  are  engagements  of  the  first  party  in 
two  clauses — the  first  to  the  effect  "that  the  said  vessel, 


Nov.  1905.]  Grimberg  v.  Columbia  Packers*  Assoc.     265 

in  and  during  the  voyage,  shall  be  kept  tight,  staunch,  well 
fitted,  tackled,"  etc.^  and  the  second  that  "the  whole  of 
such  vessel,  excepting  the  private  apartments  of  the  master 
in  the  cabin,"  etc.,  ''shall  be  at  the  sole  use  and  disposal 
of  the"  second  party  during  the  voyage,  and  that  no  goods 
*'shall  be  laden  on  board  otherwise  than  for  said"  second 
party.  These  contain  cogent  and  forcible  expressions  in- 
dicating that  an  affreightment  only  was  intended,  and  not 
a  demise.  They  imply,  first,  that  the  owners  shall  have 
an  oversight  of  the  ship  to  see  that  it  be  kept  in  proper 
condition  during  the  voyage,  and,  second,  that  they  should 
engage  in  freighting  the  vessel,  consistent  with  the  previ- 
ous clause,  agreeing  that  no  goods  should  be  laden  thereon 
except  such  as  the  charterer  should  designate.  The  en- 
gagements are  simply  what  they  purport  to  be,  covenants 
on  the  parts  of  the  owners,  and  are  inconsistent  and  incom- 
patible with  the  idea  of  a  demise :  Leary  v.  United  States^ 
81  U.  S.  (14  Wall.)  607  (20  L.  Ed.  756). 

7.  We  come,  now,  to  the  next  clause,  which  consists  of 
stipulations  on  the  part  of  the  defendant.  It  reads,  in 
effect,  that  the  second  party  "does  covenant  and  agree  to 
charter  and  hire  said  vessel,"  and  "to  pay  for  the  charter 
of  said  vessel,  including  the  captain's  salary,  during  the 
voyage,"  $1,500  on  the  day  of  acceptance  of  the  vessel,  and 
$1,500  per  month,  until  "said  vessel  is  discharged  of  all 
her  cargo."  The  clause  runs  in  covenant  and  agreement 
by  its  direct  terms ;  that  is  to  say,  it  is  a  covenant  to  char- 
ter and  hire,  and  to  pay  the  stipulated  sum  of  $1,500  per 
month  for  the  charter.  The  use  of  the  term  "hire,"  like 
the  word  "charter,"  is  not  inconsistent  with  the  idea  of  a 
covenant  or  agreement  only  for  freighting  accommodations 
aboard  ship.  Says  Mr.  Justice  Bliss,  in  Adams  v.  Homeyer, 
45  Mo.  545  (100  Am.  Dec.  391):  "  Nor  can  anything  be  in- 
ferred from  the  repeated  use  of  the  term  *hire,'  for  the  word 
may  as  well  apply  to  the  price  for  service  as  of  a  lease." 


266        Grimberg  v,  Columbia  Packers*  Assoc.     [47  Or. 

But,  in  the  connection  in  which  the  word  is  used  in  the 
present  instance,  the  inference  would  be  rather  against  the 
signification  of  a  leasing,  for  it  is  contained  in  a  covenant 
on  the  part  of  the  charterer,  while  the  owners  have  not  on 
their  part  employed  any  terms  which  are  ordinarily  con- 
sidered operative  words  in  a  lease  or  demise.  But  these 
clauses,  considered  simply  in  their  relations  one  to  another, 
are  not  controlling,  but  may  yet  be  dominated  and  their 
true  intendment  governed  by  subsequent  conditions  of  the 
charter  party.  In  Marcardier  v.  Chesapeake  Ins.  Co.  12  U.  S. 
(8  Cranch),  38  (3  L.  Ed.  481),  the  charter  party  contained 
this  language:  '*Granted  and  to  freight  let,  #  ♦  the  said 
brig,  excepting  and  reserving  her  cabin  for  the  use  of  the 
master."  And  by  the  first  clause  in  the  case  of  Clarkson  v. 
EdeSf  4  Cowp.  470,  the  owner  agreed  "to  freight  and  to 
let"  to  the  charterer  the  whole  of  the  ship,  and  yet  it  was 
held  in  each  of  those  cases,  considering  all  the  terms  of 
the  charter  party,  that  the  ownership  and  possession  was 
retained  by  the  general  owner.  Here  were  positive  terms 
used,  strongly  indicative  of  an  intendment  that  the  ship 
should  pass  to  the  charterer  under  a  demise. 

8.  The  first  payment  in  the  present  charter  party  was 
to  be  made  on  "the  day  of  the  acceptance"  of  the  vessel  by 
the  charterer.  The  word  "acceptance"  has  a  significance 
that  we  will  discuss  presently.  By  succeeding  clauses  it 
was  agreed  that  the  charterer  should  pay  all  wages  of 
the  crew,  excepting  the  captain,  all  port  charges  and  labor 
bills,  and  furnish  all  necessary  provisions,  fuel,  etc.,  dur- 
ing the  whole  of  the  voyage,  and  should  at  the  termina- 
tion of  the  charter  deliver  the  vessel  in  port  of  destination 
to  the  owner  in  as  good  condition  as  when  chartered,  rea- 
sonable deterioration  for  usage  excepted,  and  that  it  should 
"employ"  the  vessel  only  in  lawful  trade.  These  clauses 
certainly  militate  strongly  against  the  idea  of  a  contract 
of  affreightment,  for  the  charterer  has  taken  upon  him- 


Nov.  1905.]  Grimberg  v.  Columbia  Packers*  Assoc.     267 

self  the  entire  expense  of  the  voyage,  except  the  wages  of 
the  captain,  which  are  provided  for  in  the  consideration 
for  the  charter  of  the  vessel.  In  other  words,  the  captain's 
wages  were  included  in  the  monthly  payments  to  be  made 
for  the  charter.  Who  were  to  furnish  the  crew  we  are  not 
advised.  By  all  reasonable  intendment  the  owners  were 
to  furnish  the  captain  or  master,  for  why  should  they  pro- 
vide for  the  payment  of  his  wages  along  with  the  consid- 
eration for  the  charter  of  the  vessel  ?  If  the  charterer  was 
to  provide  such  master,  it  would  be  a  matter  of  indiffer- 
ence  with  the  owners  respecting  the  payment  of  such 
wages,  except  that  they  would  probably  have  required  a 
stipulation  on  the  part  of  the  charterer,  as  they  have  with 
reference  to  the  wages  of  the  crew,  that  such  wages  should 
be  discharged,  so  that  they  would  not  become  a  lien  upon 
the  ship.  From  evidence  aliunde  we  know  that  the  de- 
cedent and  others  were  employed  by  defendant  to  ship  as 
sailors  for  the  voyage.  But  there  were  mates  aboard  who 
undoubtedly  participated  in  the  navigation  of  the  ship, 
and  we  .are  unadvised  as  to  who  furnished  or  employed 
them,  the  owners  or  the  charterer.  Their  wages  were  to 
be  paid  by  the  charterer.  The  provisions  touching  the 
expense  of  the  voyage  are  certainly  largely  inimical  to 
the  idea  of  a  contract  of  an  affreightment  only:  Drink- 
water  V.  Freight  and  Cargo  of  the  Brig  Spartan^  1  Ware, 
*149,  (Fed.  Cas.  No.  4085);  First  Nat,  Bank  of  Marquette  v. 
Stewart,  26  Mich.  84.  So  it  would  seem,,  as  to  the  agree- 
ment on  the  part  of  the  charterer,  that  it  should  employ 
the  vessel  only  in  lawful  trade. 

The  word  "employ"  indicates  a  purpose  of  control  and 
management.  Yet  the  defendant  might  reasonably  have 
made  such  a  covenant  without  taking  a  demise  of  the 
vessel.  The  covenant  or  agreement  is  perhaps  common 
to  most  charter  parties.  By  a  subsequent  clause  the  own- 
ers agreed  to  place  the  vessel,  ready  for  cargo,  alongside 


268         Grimberg  v.  Columbia  Packers*  Assoc.     [47  Or. 

of  such  wharf  in  San  Francisco  as  the  charter  might 
direct,  at  which  time,  the  vessel  being  safely  moored,  the 
charter  should  "commence,"  but  that,  if  the  ship  should 
not  be  *'delivered"  in  the  manner  designated,  then  that 
the  charterers  might  at  their  option  cancel  the  charter. 
Then  later  in  the  agreement  the  charterer  stipulates  that 
"on  the  delivery  of  said  vessel  at  the  termination  of  the 
charter  she  shall  be  free  and  clear  of  any  liens,"  etc.  The 
use  of  the  terms  "acceptance"  and  "delivery"  with  rela- 
tion to  the  ship  would  seem  almost  conclusively  to  indi- 
cate an  intendment  that  the  command  and  possession 
were  surrendered  to  the  charterers,  to  be  by  them  deliv- 
ered back  to  the  owners  at  the  termination  of  the  voyage, 
and  would  evidence  a  demise,  and  yet  not  a  single  tech- 
nical term  of  demise,  and  no  other  term  of  such  signifi- 
cance that  could  not  as  well  be  used  in  draughting  a  con- 
tract of  affreightment,  is  employed  in  the  charter  party 
between  the  parties.  The  mere  circumstance  that  such 
terms  were  not  employed  is  in  itself  significant.  There 
are  some  other  provisions  of  minor  moment,  namely,  that 
the  charterer  shall,  in  case  the  vessel  is  disabled  for  service 
or  lost,  pay  "freight"  to  the  time  of  such  disablement  or 
loss  only,  the  charter  terminating  by  the  event ;  that  the 
charterer  shall  at  all  times  have  men  on  board  sufficient 
properly  to  care  for  the  ship  and  her  safety,  and  that  the 
owners  shall  supply  the  ship  with  tackle,  etc.,  to  handle 
cargo,  and  necessary  lines  for  mooring.  These  are  not 
inconsistent,  either  with  the  demise  of  the  vessel  or  a  con- 
tract of  affreightment,  and  may  as  well  be  employed  in  the 
one  case  as  in  the  other.  We  will  recur,  therefore,  to  a  fur- 
ther consideration  of  the  preceding  conditions  touching 
the  acceptance  and  delivery  and  redelivery  of  the  vessel. 
In  the  case  of  Adams  v.  Homeyery  45  Mo.  545  (100  Am. 
Dec.  391),  there  arose  very  much  such  a  conflict  of  incon- 
sistent clauses  in  the  charter  party  as  here,  and  the  court 


Nov.  1905.]  Grimberg  v,  Columbia  Packers'  Assoc.     269 

gave  them  most  careful  and  intelligent  consideration,  re- 
sulting in  the  conclusion  that  the  charter  party  did  not 
effectuate  a  demise  of  the  vessel.  There  is  a  significant  dis- 
tinction in  one  respect  only.  In  that  case  the  owners 
agreed  and  claimed  the  right  to  provide  the  captain  "to 
command  and  run  the  steamer,  and  to  furnish  a  man  to 
take  charge  of  and  manage  the  barges,  both  of  whom  were 
to  be  paid  by  the  plaintiffs."  While  the  owners  here  do 
in  fact  provide  the  captain  or  master,  and  pay  his  wages, 
nothing  is  said  regarding  his  command  or  control  of  the 
vessel.  Beyond  this  the  charterer  was  to  insure  the  steamer 
for  the  benefit  of  the  owners  and  pay  them  "for  the  use  and 
hire"  of  the  boat  and  barges  a  stipulated  sum  every  15  days, 
"until  the  charter  w^as  terminated  by  the  delivery  of  said 
steamer  and  all  of  the  said  barges  to  the  owners,"  or  until 
otherwise  terminated.  In  case  of  loss  or  disablement  of 
the  boat,  it  was  further  agreed  that  he  might  deliver  the 
barges  to  the  owners,  "pay  up  the  hire  of  said  steamer 
and  barges  to  the  date  of  such  delivery,"  and  be  discharged 
from  liability  or  loss  and  "for  further  hire";  that  upon 
failure  on  the  part  of  the  charterer  to  pay  expenses  or 
liabilities  of  steamer  or  barges,  or  to  keep  the  former  in- 
sured, or  to  "pay  the  hire,"  his  rights  were  to  be  forfeited  ; 
that  the  owners  might  terminate  the  charter  and  "resume 
possession  of  the  steamer  and  barges";  and  that  in  case  of 
loss  of  the  steamer  the  charterer  should  "be  discharged 
from  all  liability  to  deliver  said  steamer  as  aforesaid."  After 
speaking  of  the  effect  of  other  clauses  of  the  charter  party, 
all  supporting  the  presumption  of  ownership  in  the  general 
owners,  the  court  say:  "What,  then,  must  the  parties  have 
intended  by  the  language  used  by  them  in  relation  to  the 
surrender  of  possession  at  the  termination  of  the  contract? 
Clearly  and  only  that,  at  the  time  and  on  the  occasion  re- 
ferred to,  the  contract  should  end  ;  that  the  owners  should 
then  have  the  independent  use  and  control,  absolved  from 


270        Grimbkrg  v.  Columbia  Packers'  Assoc.     [47  Or. 

any  obligation  to  run  and  carry  exclusively  for  the  char- 
terer. This  meaning  renders  the  whole  instrument,  and 
the  action  of  the  parties  under  it,  consistent  and  harmo- 
nious; while  the  one  contended  for  would  require  that 
Capelle,  who  never  was  in  actual  possession,  should  yield 
possession  to  the  owners,  who  had  all  along,  by  their 
officers,  though  for  Capelle's  use,  been  running  the  boat 
and  barges."  A  little  later  the  court  continues :  "The  gen- 
eral owner  may  let  his  ship  with  a  master  and  crew  of  his 
own  choosing,  and,  if  there  is  evidence  of  intention  to  part 
with  the  possession,  it  is  held  to  be  a  demise.  But  a  cov- 
enant that  he  shall  have  the  right  to  appoint  the  master 
to  control  and  navigate  clearly  indicates  an  intention  not 
to  trust  the  property  in  the  hands  of  others,  but  to  control 
it  by  his  own  agents  for  the  use  of  the  charterer." 

Now,  as  previously  observed,  the  parties  have  employed 
no  technical  words  of  grant  or  demise,  nor  was  the  vessel, 
in  terms,  let  to  hire.  The  charterer  covenanted  and  agreed 
to  "charter  and  hire,"  but  we  look  in  vain  for  any  letting 
to  "hire"  on  the  part  of  the  owners,  nor  was  there  any 
express  declaration  that  the  charterer  was  to  take  the  ves- 
sel into  its  own  possession.  The  owners  provided  the  mas- 
ter and  presumably  the  mates,  while  the  charterer  engaged 
to  employ  the  crew.  The  natural  deduction  would  be  that 
the  owners  retained  command  and  possession  and  the  con- 
sequent navigation  of  the  vessel  through  the  master  and 
mates.  So  that  here  are  conditions  altogether  incompatible 
with  any  idea  of  a  demise  whatever,  and,  while  the  term 
"hire"  might  be  consistent  with  a  demise,  it  is  not  incon- 
sistent with  a  contract  of  affreightment.  The  clause  with 
reference  to  the  charterer's  payment  of  the  wages  of  the 
crew,  etc.,  is,  however,  consistent  with  a  demise,  yet  it  is 
not  controlling.  So,  with  the  stipulations  concerning  ac- 
ceptance, delivery  and  redelivery,  considering  the  other 
conditions  of  the  charter  party.    These  terms  are  more 


Dec.  1905.]  Geldard  v.  Marshall.  271 

readily  reconcilable  with  the  idea  of  their  employment 
with  reference  to  the  commencement  and  termination  of 
the  charter  party  than  that  they  portend  a  transfer  of  the 
possession,  control  and  management  of  the  ship  from  one 
party  to  the  other. 

These  considerations,  taken  in  connection  with  the  legal 
presumption  that  obtains  in  favor  of  the  continuance  of 
ownership  of  the  ship  in  the  general  owners,  and  against 
any  transfer  thereof  for  the  voyage,  impel  us  to  the  con- 
clusion that  the  contract  is  one  of  affreightment  only,  and 
does  not  constitute  a  demise.  The  presumption  alluded  to 
is  said  to  be  so  strong  that,  if  the  end  sought  to  be  affected 
by  the  charter  party  can  conveniently  be  accomplished 
without  a  transfer  of  the  vessel  to  the  charterers,  the  law 
is  not  disposed  to  regard  the  contract  as  a  demise;  and 
this,  even  if  there  be  express  words  of  grant  in  the  formal 
parts  of  the  instrument:  Hagar  v.  Clark,  78  N.  Y.  45.  No 
such  words  whatever  are  found  in  the  present  charter 
party. 

Such  being  our  conclusion,  it  is  conceded  that  the  de- 
fendant is  not  liable  for  the  injury  resulting  to  the  decedent, 
and  the  judgment  of  the  circuit  court  will  therefore  be 
affirmed.  Affirmed. 


Argued  18  October,  decided  4  December,  1906. 
QEIiDABB  i\  MABSHAIili. 

83  Pac.  897,  84  Pac.  806. 

Master  and  Bebvant  — Responsibility  fob  Use  of  Methods  and 
Appiii A NCKS  — Custom  of  the  Business. 

1.  Where  an  employer  Intrusts  to  thecmployeeH  engaged  In  the  work  theduty 
of  selecting  from  appliances  furnished,  he  is  not  liable  for  injuries  to  a  servant 
caused  by  negligence  of  fellow-servants  in  failing  to  select  safe  appliances  for  use; 
but,  if  the  master  performs  the  duty  of  selecting  such  appliances  himself,  he  is 
liable  for  the  exercise  of  reasonable  care  in  making  the  selection  and  continuing 
the  use  of  the  appliances  selected,  and  evidence  of  a  custom  among  employers 
requiring  the  workmen  to  select  is  immaterial  and  incompetent. 


272  Gkldard  v.  Marshall.  [47  Or. 

QDB8TION  FOR  JUBY. 

2.  In  an  action  for  injuries  to  aberrant  by  the  breaking  of  ropes  used  in  lower- 
ing a  heavy  timber,  evidence  Ae^d  to  require  submission  to  the  Jury  of  the  question 
whether  defendant,  who  was  pi'esent  directing  tlie  work  himself,  selected  the  ropes 
fjrom  a  supply  furnished,  or  delegated  such  selection  to  plain tifTs  fellow-servants. 

iNSTRUcrrioNS  ON  Abstract  Propositions. 

8.  Instructions  to  Juries  should  be  limited  to  the  consideration  of  questions 
involved  in  the  case  on  trial,  and  irrelevantand  immaterial  questions  should  not 
be  submitted  to  the  Jury. 

For  example:  In  an  action  by  a  servant  against  his  master  growingo  itof  an 
Irijury  caused  by  the  breaking  of  a  rope  with  which  timbers  were  being  lowered, 
an  instruction  that  if  plaintlfT  knew  the  rope  broke  on  account  of  its  weak  and 
defective  condition  the  day  before  he  was  inj  ured,  and  knew  that  defendant  neve^ 
theless  continued  to  use  it,  he  assumed  the  ritik  of  injury  from  the  defective  rope 
was  error,  where,  though  the  plaintiff  testified  that  he  knew  the  rope  broke  the 
day  before,  there  was  no  evidence  that  the  plaintiff  knew  why  the  rope  broke,  or 
saw  it  break,  or  that  he  knew  that  the  rope  used  on  the  day  of  his  injury  was  the 
same  which  had  broken  the  day  before. 

From  Multnomah :   Arthur  L.  Frazer,  Judge. 

Action  for  damages  by  Matthew  Geldard  against  J.  I. 
Marshall,  resulting  in  a  verdict  for  defendant,  from  which 
plaintiff  appeals.  The  main  opinion  was  written  by  Mr. 
Chief  Justice  Wolverton,  and  after  his  resignation  and 
retirement,  a  further  opinion  on  a  petition  for  a  rehearing 
was  written  by  Mr.  Chief  Justice  Bean,  Reversed. 

For  appellant  there  was  a  brief  over  the  name  of 
WilliamSy  Wood  &  Linthicum^  with  an  oral  argument  by 
Mr.  Stewart  Brian  Linthicum, 

For  respondent  there  was  a  brief  over  the  names  of 
Bronaugh  &  Bronaugh  and  W.  D.  Fenton,  with  an  oral 
argument  by  Mr.  Jerry  England  Bronaugh. 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

This  is  a  second  appeal  by  plaintiff  in  this  action,  he 
having  failed  to  secure  a  verdict  and  judgment,  of  which 
he  complains.  The  facts  developed  at  the  trial  are  sub- 
stantially the  same  as  those  appearing  at  the  former  trial. 
The  statement  thereof  as  formerly  made  (43  Or.  438,  73 
Pac.  330)  will  therefore  suffice  for  the  present. 

The  pivotal,  and,  as  we  have  concluded,  the  vital,  ques- 
tion impending,  arises  upon  the  defendant's  attempt  to 


Dec.  1905.]  Geldard  v.  Marshall.  273 

establish  the  existence  of  an  alleged  custom  between  the 
master  and  his  workmen,  whereby,  the  master  having 
furnished  suitable  appliances,  the  workmen  are  required  to 
make  the  selections  therefrom  for  present  use,  and  that 
for  making  improper  or  unfit  selections,  which  conduce 
to  an  injury,  the  master  is  not  liable.  The  nature  of  the 
alleged  custom  is  inferable  from  certain  questions  put  to 
witnesses  Griffith  and  Bridges,  and  also  from  others  put  to 
Marshall,  the  defendant,  and  his  answers  thereto.  Griffith 
was  asked : 

''What  would  be  the  custom  of  using  a  rope  of  that  kind, 
as  to  who  should  call  attention  to  the  fact  as  to  whether 
or  not  the  rope  was  sufficient  to  stand  the  use?" 

And  again  : 

"What  would  be  the  custom  of  an  ordinarily  prudent 
man  engaged  in  that  business,  where  a  supply  of  ropes  are 
furnished  and  on  hand  from  which  selections  could  be 
made  by  the  servants  in  charge,  in  using  a  rope  of  that 
kind,  as  to  who  should  call  attention  to  the  fact  as  to 
whether  or  not  the  rope  was  sufficient  to  stand  the  use?" 

Bridges  was  asked : 

**What  is  the  custom,  among  reasonably  prudent  men 
engaged  in  your  business,  as  to  who  should  look  out  for 
the  ropes  when  a  number  of  ropes  are  accessible?" 

And  Marshall  was  asked  : 

*'What  arrangements,  if  any,  were  made  for  the  replac- 
ing of  rope  which  became  defective?". 

He  answered  : 

*'There  was  plenty  there  to  pick  from.  It  was  under- 
stood, if  a  man  was  handling  the  ropes,  the  man  looked  at 
the  rope  he  was  using,  and  if  there  was  anything  wrong 
with  it—" 

Here  was  an  interruption,  and  later  thfe  following  ques- 
tion was  propounded : 

"What  is  the  general  custom,  in  work  of  that  kind,  as 
to  replacing  defective  ropes  ?" 

17  Or.  — 18 


274  Geldard  v.  Marshall.  [47  Or. 

To  which  the  witness  answered,  over  objection  : 

"In  this  city,  wherever  a  man  goes  to  work  with  a  rope, 
he  is  supposed  to  look  at  the  ropes  and  pick  one  out  to  suit 
himself,  if  there  are  ropes  there,  and  if  there  is  any  thing 
wrong  with  the  rope  he  leaves  it,  and  reports  it  to  the 
party  that  supplies  the  ropes,  if  there  is  no  other  rope 
there.  It  is  just  like  making  a  scaffold.  When  a  man  is 
putting  up  a  scaffold,  one  man  for  another,  the  man  going 
out  on  the  scaffold  looks  to  see  whether  the  scaffold  is 
safe.'' 

1.  An  analysis  of  these  questions  indicates  that  the  de- 
fendant was  endeavoring  to  establish  two  supposed  cus- 
toms, or,  rather,  perhaps,  two  phases  of  one  custom ;  one 
being  as  to  whose  duty  it  was,  as  between  master  and 
servant,  to  call  attention  to  the  fitness  or  unfitness  of  the 
rope  for  the  use,  and  the  other  as  to  whose  duty  it  was  to 
make  selections  from  rope  that  had  been  provided  by  the 
master  for  use  as  needed.  But  did  the  conditions  call  for 
inquiry  touching  any  custom  ?  Or,  rather,  was  it  not  a 
mere  matter  of  inquiry  respecting  the  primary  and  cor- 
relative duties  and  responsibilities  of  master  and  employee, 
to  be  ascertained  under  the  conditions  and  circumstances 
then  existing?  There  was  evidence  tending  to  show  that 
the  defendant  was  present  with  the  workmen,  and  was 
himself  directing  the  work,  and  that  there  was  plenty  of 
rope  provided  from  which  to  make  selections  when  needed. 
It  does  not  appear,  however,  who  made  the  selection  of 
the  particular  rope  then  in  use,  although  there  is  evidence 
from  which  it  is  inferable  that  the  defendant  knew  or 
ought  to  have  known  of  its  condition  at  the  time.  Now, 
the  simple  question  is,  did  the  responsibility  of  the  selec- 
tion and  continued  use  of  this  rope  rest  with  the  defend- 
ant, or  was  it  a  duty  that  devolved  upon  the  workmen? 
The  question  is,  under  the  evidence  as  we  view  it,  a  mixed 
one  of  law  and  fact.  It  will  be  remembered  that  the  plain- 
tiff was  not  using  the  rope  at  the  time  of  his  injury,  but 


Dec.  1905.]  Geldard  v.  Marshall.  275 

was  employed  in  another  service,  so  that  it  becomes  the 
measure  of  a  duty  of  a  coemployee  in  the  premises.  We 
said  in  Robinson  v.  Taku  Fishing  Co.,  42  Or.  537,  541  (71 
Pac.  790):  **When  the  selection  of  materials  or  the  adap- 
tation or  construction  of  appliances  to  suit  them  to  the 
work  in  hand  is  sucb  as  is  within  the  scope  of  the  employ- 
ment, and  may  be  properly  left  to  the  workmen  in  their 
capacity  as  such,  and  is  so  left  to  them  by  the  master,  he  is 
relieved  of  responsibility  for  their  negligence,  and  whether 
a  particular  case  falls  within  the  duty  of  the  master  or  that 
of  the  employee  becomes  a  mixed  question  of  law  and  fact, 
to  be  submitted  to  the  jury  as  to  the  fact  under  legal  rules, 
its  determination  depending  upon  the  facts  of  the  case.*' 
In  the  nature  of  things  there  are  certain  duties  that  a 
master  may  well  leave  to  the  discretion  and  judgment  of  his 
employees,  or  he  may  himself  act  in  the  discharge  of  them. 
If  he  does  the  latter^  he  is  responsible  for  his  negligence 
committed  in  such  discharge.  If,  however,  he  intrusts  the 
duty  to  his  employees  and  they  act  negligently  in  the  prem- 
ises,  their  negligence  cannot  be  imputed  to  the  master, 
and  thus  a  master  would  not  rest  accountable  for  the  neg- 
ligence of  a  fellow-servant. 

Thus,  in  Brady  v.  Norcross,  172  Mass.  331  (52  N.  E.  528), 
an  action  to  recover  damages  for  an  injury  received  from 
a  fall  occasioned  by  the  giving  way  of  a  temporary  staging 
upon  which  plaintiff,  one  of  the  workmen,  was  engaged  in 
the  course  of  his  employment,  it  was  stated  as  a  rule  of 
law  applicable  in  the  case  that,  **if  the  plaintiff's  employ- 
ers furnished  sufficient  quantities  of  suitable  materials  for 
staging,  employed  suitable  workmen,  and  did  not  them- 
selves undertake  the  duty  of  furnishing  the  staging  as  a 
structure,  but  only  of  supplying  materials  and  labor  by 
which  it  might  be  built  and  from  time  to  time  adapted  to 
the  work,  and  if  the  duty  of  furnishing  or  adapting  the 
staging  as  an  appliance  for  use  in  the  work  of  finishing 


276  Geldard  V,  Marshall.  [47  Or. 

the  room  was  intrusted  to  or  assumed  by  the  workmen 
themselves,  within  the  scope  of  their  employment,  the 
employers  are  not  answerable  to  the  plaintiff  for  his  in- 
jury*'; but  that,  "on  the  other  hand,  if  the  staging  was 
furnished  by  the  employers  as  a  completed  structure,  or  if 
they  themselves  supervised  and  directed  its  construction, 
or  if,  relying  upon  its  construction  by  their  workmen  for 
themselves,  the  employers  negligently  failed  to  provide 
suitable  and  sufficient  materials,  or  negligently  hired  in- 
competent workmen,  the  employers  might  be  answerable 
to  the  plaintiff."  Upon  the  second  appeal  (174  Mass.  442, 
449,  54  N.  E.  874),  the  court  say:  "Without  reciting  the 
evidence  in  detail,  it  is  sufficient  to  say  that  the  questions 
whether  the  plaintiff,  was  in  the  exercise  of  due  care, 
whether  there  was  negligence  in  the  care  of  the  staging, 
whether  that  negligence,  if  any,  was  attributable  either  to 
Douglas  or  to  Smith,  and  whether  either  or  both  of  them 
was  a  person  whose  chief  duty  was  that  of  superintend- 
ence, and  to  whom  as  a  part  of  that  duty  the  care  of  this 
staging  was  intrusted  by.  the  defendant,  seem  to  us  to  be 
upon  the  evidence  questions  of  fact  for  the  jury,  and  not 
of  law  for  the  court."  So  it  is  if  a  person  is  employed  to 
do  a  piece  of  work  and  in  doing  it  is  to  furnish  his  own 
appliances,  or  if  he  assumes  to  select  and  adapt  the  neces- 
sary appliances  in  order  to  a  prosecution  of  the  work,  the 
employer  could  not  be  held  liable  for  his  acts  of  negligence 
in  that  regard.  The  duty  would  constitute  a  part  of  his 
engagement.  Neither  could  a  fellow-servant  hold  the  em- 
ployer responsible  in  that  particular,  if  the  workmen  them- 
selves were  competent  in  the  service. 

A  pertinent  example  is  instanced  in  Robinson  v.  Blake 
Mfg,  Co.,  143  Mass.  528,  533  (10  N.  E.  314),  which  sup- 
poses  that  the  work  to  be  done  was  the  moving  of  a  heavy 
substance,  requiring  the  use  of  a  simple  fulcrum  and  lever, 
and  the  employer's  foreman  in  charge  of  the  work  should 


Dec.  1905.]  Geldard  v.  Marshall.  277 

be  left  to  provide  them  at  the  place  where  the  work  was 
to  be  done,  and  he  should  take  a  common  stone  for  the 
fulcrum  and  a  scantling  or  a  rail  from  a  neighboring  f^nce 
for  the  lever,  and  the  stone  should  roll  or  the  lever  break, 
entailing  injury  to  a  workman,  and  from  which  it  is  de- 
duced that  the  selection  of  the  materials  and  appliances 
was  a  part  of  the  work  to  be  done  and  not  within  the  im- 
plied duty  and  undertaking  of  the  employer.  In  the  case 
alluded  to,  the  agent  of  the  defendant,  who  employed  plain- 
tiff and  others  to  assist  him  in  taking  out  an  old  condenser 
and  putting  in  a  new  one,  inquired  of  plaintiff  if  he  had 
any  blocking,  to  which  he  replied  that  he  had,  and  he  was 
directed  to  get  it,  but  in  using  it  it  proved  to  be  the  cause  of 
the  accident  complained  of;  and  it  was  held  that,  in  view 
of  the  circumstances  disclosed  and  the  nature  of  the  work 
to  be  done,  the  place  of  its  execution,  and  the  character 
of  the  means  and  appliances  required  to  aid  the  workmen, 
it  was  a  question  for  the  jury  to  determine  whether,  in  the 
absence  of  any  express  contract  upon  the  subject,  the  duty 
according  to  the  understanding  of  the  parties  rested  upon 
the  defendant  or  upon  those  who  should  undertake  to  do 
the  work. 

These  cases  are  illustrative  of  the  principles  which  we 
are  impressed,  govern  in  the  present  instance,  and  we  will 
cite  still  another:  Great  Northern  Ry.  Co,  v.  McLaughlin, 
70  Fed.  669  (17  C.  C.  A.  330).  The  injury  was  caused  by 
a  steel  rail  falling  upon  plaintiff  while  he  was  engaged 
with  others  in  loading  it  upon  a  car.  One  Johnson,  who 
was  foreman  of  the  yard,  hired  and  discharged  the  work- 
men and  directed  their  work.  In  the  absence  of  plaintiff, 
who  was  directed  to  help  with  the  work,  the  foreman 
selected  some  skids  to  be  used  in  the  loading  from  a  num- 
ber lying  in  the  yard.  The  workmen  suggested  to  the 
foreman  that  one  of  them  was  too  short,  and  was,  there- 
fore, unsafe,  and  objected  to  its  use ;  but  the  latter  further 


278  Gbldard  V,  Marshall.  [47  Or. 

examined  it  and  directed  the  workmen  to  proceed  with  its 
use.  The  plaintiff,  having  subsequently  returned  to  his 
work,  knowing  nothing  of  the  controversy  about  the  skid 
or  its  condition,  was  injured,  as  above  indicated,  because 
of  its  unsuitableness ;  and  it  was  held  that  whether  John- 
son was  acting  as  a  vice  principal,  and  whether  plaintiff 
was  injured  through  the  negligence  of  his  fellow-servants, 
or  through  a  risk  assumed  by  him,  or  through  the  negli- 
gence of  the  railway  company,  were  for  the  jury.  In  the 
course  of  the  opinion  the  learned  judge  who  announced  it 
assumed  that  the  duty  of  selecting  and  placing  the  skids 
might  with  propriety  have  been  left  with  the  workmen. 
If  such  had  been  the  case  the  company  would  not  have 
been  liable  for  the  negligence  of  the  workmen  in  using 
the  objectionable  skid.  In  further  course  of  the  opinion 
it  is  said:  "The  controlling  question  often  turns  more 
upon  the  character  of  the  act  performed  than  on  the  title 
of  the  officer  or  agent  of  the  master,  and  of  the  relations 
of  the  workmen  to  each  other.  When  Johnson^s  attention 
was  called  by  the  workmen  to  the  fact  that  the  skids  were 
of  unequal  length  and  unsafe,  it  was  his  duty,  in  relation 
to  his  position  with  the  railway  company,  to  have  either 
procured  other  and  safe  skids,  or  directed  the  workmen 
to  do  so." 

2..  From  these  authorities  it  was  for  the  jury  to  deter- 
mine, under  the  testimony  of  the  case  at  bar,  whether  the 
defendant  was  directing  the  work,  and  whether,  having 
furnished  a  quantity  of  rope,  if  such  was  the  case,  he  him- 
self assumed  the  duty  of  making  the  selection  of  such  as 
was  needed  in  the  work.  If  he  did  these  things  and  was 
careless,  or  did  not  use  reasonable  caution  and  prudence 
in  making  the  selection,  he  would  be  liable;  and,  further, 
if  he  had  made  a  proper  selection,  having  assumed  that 
duty,  and  the  rope  subsequently  became  unsafe  by  use, 
and  he  was  made  aware  of  the  condition,  or  should  have 


Dec.  1905  ]  Gbldard  v.  Marshall.  279 

ascertained  or  known  of  it  by  proper  precaution  and  fore- 
sight, and  failed  to  supply  another,  he  would  yet  be  re- 
sponsible. But  if,  on  the  other  hand,  he  left  the  selection 
entirely  to  the  workmen,  and  they  were  acting  in  the  dis- 
charge of  that  duty,  then  the  defendant  would  not  be 
responsible  for  their  negligent  act  in  that  particular,  or  if 
the  rope  became  defective  by  reason  of  use,  and  the  dje- 
fendant  was  not  aware  of  it,  but  the  workmen  were,  and 
continued  in  the  use  of  it  without  making  another  selec- 
tion, the  jeopardy  would  have  been  theirs,  and  a  fellow- 
servant  engaged  in  the  same  service,  though  not  intrusted 
with  making  the  selection,  would  have  the  same  responsi- 
bility. These  are  all  matters  for  the  jury  under  the  evi- 
dence. Now,  what  room  was  there  for  the  supposed  custom 
or  customs  sought  to  be  established  ?  The  matters  sought 
to  be  determined  were  of  fact,  and  not  of  custom.  It  was 
inquired  what  would  be  the  custom  as  to  who  should  call 
attention  to  the  fact  as  to  whether  or  not  the  rope  was 
suflBcient  to' stand  the  use.  The  inquiry  pertains  not  to  a 
custom.  If  a  workman  saw  that  a  rope  or  an  appliance 
in  use  was  defective  or  unsafe,  it  was  his  duty,  not  sug- 
gested by  any  custom  or  usage,  but  for  self-protection,  and 
the  protection  of  his  co-laborers,  to  call  prompt  attention 
to  the  fact  or  supply  the  remedy,  if  within  his  authority; 
otherwise,  by  a  continuation  in  the  service  with  the  de- 
fective appliance,  he  assumed  the  risk  of  accident.  It  is 
a  mere  question  of  duty,  not  regulated  by  custom,  unless 
you  raise  custom  to  the  dignity  of  law,  and  then  the  in- 
quiry would  be  as  to  the  rule  of  law,  which  would  be  for 
the  court  to  ascertain,  without  inquiry  as  to  the  fact.  And, 
again,  it  was  inquired  what  would  be  the  custom  among 
reasonably  prudenl  men  engaged  in  such  business  as  to 
who  should  look  out  for  the  ropes  when  a  number  are 
accessible. 


280  Gbldard  v.  Marshall.  [47  Or. 

From  the  rules  of  law  governing  in  the  premises,  as  we 
have  heretofore  ascertained  them  to  be,  it  is  perfectly  ap- 
parent that  this  matter  of  inquiry  was  not  of  a  custom, 
but  of  a  fact.  If  the  employer  intrusted  the  duty  of  se- 
lecting the  ropes  from  a  supply  that  he  had  furnished  to 
the  workmen,  then  the  responsibility  of  selection  and  hav- 
ing in  use  a  safe  rope  would  rest  with  the  latter ;  but  if,  on 
the  other  hand,  he  acted  in  the  discharge  of  that  duty,  and 
was  present  to  oversee  and  direct  the  work  and  to  observe 
and  determine  as  to  the  fitness  of  the  appliances,  then  the 
responsibility  rested  with  him  to  have  in  use  a  suitable 
and  safe  rope,  and  nothing  could  relieve  him  therefrom, 
except  that  he  had  used  reasonable  prudence  and  precau- 
tion in  making  the  selection  and  continuing  in  the  use 
thereof.  Common  prudence  is  not  measured  by  custom 
or  by  rule,  but  by  the  exigencies  of  the  occasion,  which  is 
solvable  by  the  facts  and  is  for  the  jury  to  determine.  The 
effect  of  allowing  the  alleged  custom  to  l)e  proven  was, 
therefore,  to  take  from  the  jury  questions  material  to  the 
controversy,  namely,  whether  the  master  was  in  personal 
charge  and  hence  supervising  the  work,  or,  having  pro- 
vided suitable  appliances — that  is,  rope  suitable  and  safe 
for  use  —  the  workmen  were  left  to  make  the  selection  and 
to  see  to  its  condition  while  in  use.  The  circuit  court  was 
in  error,  therefore,  in  admitting  the  proofs,  and  for  that 
reason  alone  the  judgment  must  be  reversed,  and  the  cause 
remanded  for  such  further  proceedings  as  may  seem  ap- 
propriate, not  inconsistent  with  this  opinion. 

Other  questions  were  presented,  but  the  conclusion 
reached  renders  it  unnecessary  that  we  should  consider 
them  now.  Reversed. 


April,  1905.]         Gbldard  v.  Marshall.  281 

Decided  3  April,  1900. 

On  Motion  for  Rehearing. 

Mr.  Chief  Justice  Bean  delevered  the  opinion. 

3.  The  defendant  does  not  ask  for  a  rehearing  upon  any 
question  discussed  in  the  opinion,  but,  in  view  of  a  new 
trial,  he  requests  the  court  to  pass  upon  the  assignment 
of  error,  based  on  the  giving  of  an  instruction  to  the  effect 
that  if  the  plaintiff  knew  the  rope  broke,  on  account  of  its 
weak  and  defective  condition,  the  day  before  he  was  injured, 
and  knew  that  defendant,  nevertheless,  continued  to  use  it, 
he  assumed  the  risk  of  injury  from  the  defective  rope  by 
continuing  to  work  with  the  persons  using  such  rope,  and 
cannot  complain,  or  recover  damages  if  he  was  injured  on 
account  thereof.  The  objection  to  this  instruction  is  that 
there  was  no  testimony  upon  which  to  base  it.  The  plain- 
tiff testified  that  he  knew  the  rope  broke  while  a  brace  was 
being  lowered  the  day  before  he  was  injured,  but  he  did 
not  know  why  the  rope  broke,  or  did  not  know  whether 
it  was  the  same  rope  as  the  one  being  used  at  the  time  of 
his  injury.  The  bill  of  exceptions  recites  that  all  the  tes- 
timony as  to  any  knowledge  on  the  part  of  the  plaintiff  as 
to  why  the  rope  broke  and  as  to  whether  such  rope  was 
being  used  at  the  time  of  his  injury  is  that  of  plaintiff  and 
that  **no  evidence  was  given  by  any  one  that  plaintiff  knew 
why  the  rope  broke  before  his  injury,  or  saw  it  break,  or 
that  he  knew  that  the  rope  used  on  the  day  of  his  injury 
was  the  same  rope  which  had  broken  the  day  before."  It 
would  seem,  therefore,  from  the  statement  in  the  bill  of 
exceptions  that  the  instruction  complained  of  wUs  entirely 
outside  the  evidence,  and,  therefore,  should  not  have  been 
given,  for  it  is  error  for  a  trial  court  to  give  instructions 
upon  abstract  propositions  of  law  not  applicable  to  the 
facts  in  evidence,  however  correct  in  themselves:  Glenn 
V.  Savage,  14  Or.  567  (13  Pac.  442);   Woodward  v.  Oregon 


282  State  v.  Martin.  [47  Or. 

Ry,&Nav.  Co.,  18  Or.  289  (22  Pac.  1076);  Pearson  v.  Dry- 
den,  28  Or.  350  (43  Pac.  160).    The  petition  is  denied. 
Reversed:  Rehearing  Denied. 


Decided  2  January,  1906. 

STATE  V,  MABTIN. 

83  Pac.  849. 

EviDBNCE  OF  Other  Cbime  Than  That  Charged. 

1.  Wiihin  the  rule  concerning  evidence  of  other  offenses  than  the  one  charged, 
Itlsoompetent  to  claim,  and  offer  evidence  to  prove,  that  a  defendant  on  trial 
for  homicide  had  been  physically  Intimate  with  an  unmarried  daughter  of  the 
deceased  tender  the  age  of  consent,  that  she  was  consequently  with  child,  and  that 
deceased  had  threatened  to  prosecute  defendant  for  such  conduct,  and  that  the 
latter  was  engaged  to  marry  another  girl.  This  is  all  competent  to  show  a  motive 
for  the  killing,  proper  precaution  being  taken  to  advise  the  Jury  as  to  the  purpose 
of  the  evidence. 

Witness— Impeaching  by  Contradictory  Statements.       , 

2.  Under  Section  853,  B.  &  C.  Comp.,  authorizing  the  impeachmentof  a  witness 
by  evidence  that  he  has  made  previous  statements  inconsistent  with  his  testi- 
mony, a  witness  in  homicide  cannot  be  impeached  by  the  production  of  a  tran- 
script of  the  testimony  given  by  him  at  the  inquest,  nor  by  the  reading  of  the 
stenographer's  notes  of  such  testimony  where  the  stenographer  Is  unable  t^  say 
that  hl&  notes  contain  all  that  the  witness  stated  at  the  Inquest. 

Expert  Witness  — Certainty  of  Objection. 

8.  An  objection  to  a  question  for  incompetency  does  not  support  an  argument 
that  the  witness  was  not  shown  to  be  qualified  to  express  an  opinion  on  the  sub- 
ject referred  to,  there  being  a  difference  between  the  competency  of  a  question 
and  the  competency  of  the  witness. 

From  Umatilla:    William  R.  Ellis,  Judge. 
Grover  Martin  appeals  from  a  conviction  of  manslaugh- 
ter. Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  Car- 
ter, Raley  &  Raley  and  Peterson  &  Peterson,  with  oral  argu- 
ments by  Mr.  James  Henry  Raley  and  Mr.  Samuel  Davidson 
Peterson. 

For  the  State  there  was  a  brief  over  the  names  of  Oilbert 
Walter  Phelps,  District  Attorney,  and  John  McCourt,  with 
an  oral  argument  by  Mr.  Andrew  Murray  Crawford,' KHot- 
ney  General,  and  Mr.  Phelps. 


Jan.  1906.]  State  v.  Martin.  283 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

The  defendant,  Grover  Martin,  was  indicted  for  the 
crime  of  murder  in  the  first  degree,  alleged  to  have  been 
.committed  in  Umatilla  County  May  18,  1905,  by  killing 
one  O.N.  Preston,  and, having  been  tried  therefor, he  was 
convicted  of  manslaughter,  and  sentenced  to  10  years'  im- 
prisonment in  the  penitentiary,  from  which  judgment  he 
appeals. 

His  counsel  contend  that  an  errof  was  committed  in 
permitting  the  district  attorney,  over  objection  and  excep- 
tion, to  detail  to  the  jury,  in  his  opening  statement,  cir- 
cumstances pointing  to  the  defendant's  participation  in 
the  commission  of  a  crime  other  than  that  with  which  he 
was  charged,  and  in  allowing  testimony  to  be  introduced 
tending  to  prove  such  statements.  In  order  to  illustrate 
the  legal  principle  insisted  upon,  a  brief  statement  of  the 
facts  involved  is  deemed  essential.  The  defendant,  who  is 
20  years  old,  was  for  several  months  prior  to  the  homicide 
studying  dentistry  with  one  Dr.  Fulton  in  an  office  at  Mil- 
ton, where  he  was  visited  about  May  1,  1905,  by  the  de- 
ceased, and  informed  that  he  had  seduced  the  latter's 
daughter.  This  he  denied,  and  on  the  15th  of  that  month 
he  was  again  visited  by  the  deceased,  who  reiterated  the 
charge,  and  exposed  the  butt  of  a  pistol  in  his  pocket. 
The  defendant,  again  protesting  his  innocence,  promised 
to  visit  this  daughter  and  make  some  arrangement  to 
avoid  the  shame  incident  to  her  condition.  This  promise 
was  not  kept,  and  three  days  thereafter,  while  the  defend- 
ant was  calling  at  a  neighbor's  house,  the  deceased,  who 
lived  across  the  road,  invited  him  out,  whereupon  a  com- 
bat ensued  in  the  highway.  The  defendant  knocked  the 
deceased  down  and  continued  to  pound  him  in  the  face 
until  the  neighbor  interfered.  The  deceased  then  arose 
and  picked  up  a  stone,  but  the  neighbor  took  it  from  him, 
and  as  he  was  standing  in  the  road  the  defendant  shot 


284  State  v.  Martin.  [47  Or. 

him,  claiming  that  at  that  time  Preston  made  a  demon- 
stration as  if  to  draw  a  pistol,  when  in  fact,  he  had  none. 
The  deceased  died  in  a  few  hours  from  the  effects  of  the 
shot  he  receix'ed.  The  following  is  a  summary  of  the  state- 
ment and  testimony  complained  of :  The  district  attorney, 
detailing  to  the  jury  the  facts  which  the  State  expected 
to  prove,  was  permitted  to  say,  in  effect,  that  October  19, 
1904,  the  defendant  had  illicit  sexual  intercourse  with  a 
daughter  of  the  deceased.  Minnie  Preston,  the  daughter 
referred  to,  who  is  16  years  old,  appearing  as  a  witness  for 
the  State,  testified  that  she  had  kept  company  with  the 
defendant,  and  that  she  visited  a  dental  office  at  Milton 
October  19,  1904,  and,  the  proprietor  being  absent,  the 
defendant  did  some  work  on  her  teeth,  when  he  locked 
the  door,  pushed  her  into  the  dental  chair,  and  had  sexual 
intercourse  with  her.  Dr.  Alice  Jent,  a  practicing  physi- 
cian, as  a  witness  for  the  State,  testified  that  Minnie  Pres- 
ton called  upon  her  professionally,  and,  though  she  made 
no  physical  examination  of  the  patient,  the  latter  informed 
her  that  she  was  enceinte.  Viola  Preston,  Minnie's  mother, 
referring  to  this  daughter,  said  that  she  was  in  the  family 
way. 

1.  It  is  argued  by  defendant's  counsel  that  for  the  pur- 
pose of  showing  the  aggressor  in  a  combat,  it  is  competent 
for  the  prosecution,  in  a  criminal  action,  to  prove  that  on 
a  previous  occasion  the  parties  participating  in  the  en- 
counter had  had  trouble,  but  that  it  is  improper  to  enter 
into  an  examination  of  the  antecedent  difficulty  in  detail 
to  determine  who  was  in  the  wrong;  that  the  testimony 
as  to  the  condition  of  Minnie  Preston  related  to  the  de- 
fendant's alleged  commission  of  a  crime,  wholly  uncon- 
nected with  the  offense  for  which  he  was  being  tried;  and 
that  such  testimony  and  the  statement  made  by  the  dis- 
trict attorney  diverted  the  minds  of  the  jurors,  thereby 
inducing  the  consideration  of  an  immaterial  matter,  to  the 


Jan.  1906.]  State  v.  Martin.  285 

prejudice  of  the  defendant.  The  rule  is  quite  general  that 
evidence  of  the  commission,  by  the  defendant  in  a  crim- 
inal action,  of  another  offense,  wholly  unconnected  with 
the  crime  for  which  he  is  being  tried,  is  inadmissible  on 
the  ground  that  such  evidence  tends  to  mislead  the  jury, 
creates  in  their  minds  a  prejudice  against  the  prisoner,  and 
requires  him  to  answer  a  charge  for  which  he  is  not  sup- 
posed to  have  made  preparation  :  1  Greenleaf,  Ev.  (15  ed.), 
§  52;  Underbill,  Crim.  Ev.  §  87;  State  v.  Baker,  23  Or. 
441  (32  Pac.  161);  State  v.  O'Donnell,  36  Or.  222  (61  Pac. 
892);  State  v.  McDaniel,  39  Or.  161  (65  Pac.  520).  To  this 
rule  there  is,  among  others,  the  well-recognized  exception 
that  relevant  evidence  is  not  inadmissible  because  it  may 
indirectly  tend  to  establish  the  prisoner's  guilt  of  another 
dissimilar  crime,  if  there  exists  a  union  of  motives  in  the 
commission  of  the  separate  offenses  :  Underbill,  Grim.  Ev. 
§  90.  This  text-writer,  illustrating  the  deviation  from  the 
rule  adverted  to,  says :  Thus  the  fact  that  the  evidence 
introduced  to  prove  the  motive  of  the  crime  for  which  the 
accused  is  on  trial  points  him  out  as  guilty  of  an  inde- 
pendent and  totally  dissimilar  offense  is  not  enough  to 
bring  about  its  rejection,  if  it  is  otherwise  competent. 
Under  this  exception  to  the  general  rule,  where  facts  and 
circumstances  amount  to  proof  of  another  crime  than 
that  charged,  and  it  appears  probable  that  the  crime 
charged  grew  out  of  the  other  crime,  or  was  in  any  way 
caused  by  it,  the  facts  and  circumstances  may  be  proved 
to  show  the  motive  of  the  accused." 

In  State  v.  Reed,  53  Kan.  767  (37  Pac.  174,  42  Am.  St. 
Rep.  322),  the  defendant  being  tried  for  murder,  testimony 
was  admitted  tending  to  show  criminal  intimacy  between 
him  and  the  wife  of  the  deceased.  It  was  contended  that, 
as  the  killing  was  admitted,  the  motive  could  be  shown 
in  a  general  way,  but  that  a  detailed  inquiry  necessarily 
created  a  new  issue.    It  was  ruled,  however,  that  such 


286  State  v.  Martin.  [47  Or. 

evidence  was  admissible;  the  court  saying:  *'A  detailed 
inquiry  was  made,  and  a  large  volume  of  testimony  was 
taken.  It  may  be  said,  however,  that  this  was  due,  to  a 
large  extent,  to  the  fact  that  an  undue  intimacy  between 
these  parties  was  denied  by  the  defendant.  The  testimony 
of  the  illicit  relation,  however,  if  it  existed,  was  receivable 
in  evidence  as  tending  to  show  the  motive  of  the  defend- 
ant in  killing  the  deceased."  •  In  Webb  v.  State,  73  Miss. 
456  (19  South.  238),  it  was  held  on  the  trial  of  a  person 
charged  with  murder  that  evidence  tending  to  show  that 
the  accused  had  seduced  a  sister  of  the  deceased  was  ad- 
missible from  which  a  motive  for  the  commission  of  the 
crime  charged  might  be  inferred.  In  Commonwealth  v. 
Ferrigan,  44  Pa.  St.  386,  the  defendant  being  tried  for 
murder,  it  was  held  that  evidence  of  his  adulterous  inter- 
course with  the  wife  of  the  deceased  was  admissible  to 
prove  a  motive  for  the  crime  involved.  In  State  v.  Lar- 
kin,  11  Nev.  314,  on  the  trial  of  an  indictment  for  mur- 
der, it  was  held  that  evidence  of  illicit  relations  between 
a  witness  and  the  deceased  and  between  such  witness  and 
the  prisoner  was  admissible  as  tending  to  prove  a  motive 
for  the  killing.  So,  too,  in  Morrison  v.  Commonwealth,  24 
Ky.  Law  Rep.  2493  (74  S.  W.  277),  on  the  trial  of  an  in- 
dictment for  murder,  it  was  held  that  evidence  of  the 
prisoner's  improper  relations  with  a  sister  of  the  deceased 
was  admissible  as  tending  to  show  a  motive  for  the  com- 
mission of  the  crime  charged.  In  support  of  the  excep- 
tion that  evidence  of  the  prisoner's  participation  in  other 
offenses  is  admissible  to  prove  a  motive  for  the  commis- 
sion of  the  crime  for  which  he  is  being  tried,  see,  also. 
People  V.  Pool,  27  Cal.  572 ;  People  v.  Walters,  98  Cal.  138 
(32  Pac.  864);  Fraser  v.  State,  55  Ga.  325;  Franklin  v. 
Commonwealth,  92  Ky.  612  (18  S.  W.  532);  State  v.  Pan- 
coast,  5  N.  D.  516  (67  N.  W.  1052,  35  L.  R.  A.  518);  StaU 


Jan.  1906.]  State  r.  Martin.  287 

V.  Williamson,  106  Mo.  162  (17  S.  W.  172);  Beberstein  v. 
Territory,  8  Okl.  467  (58  Pac.  641). 

In  the  case  at  bar,  the  defendant  having  been  indicted 
for  the  crime  of  murder  in  the  first  degree,  the  written 
accusation  involved  the  elements  of  malice,  premedita- 
tion and  deliberation,  to  determine  which  necessitated  the 
introduction  of  testimony  on  the  part  of  the  State  tending 
to  prove  the  charge  as  laid.  The  imputation  of  seduction  of 
an  unmarried  female  of  previous  chaste  character,  if  estab- 
lished in  a  criminal  action  involving  that  charge,  subjects 
the  man  found  guilty  thereof  to  punishment  by  imprison- 
ment, unless  the  parties  marry  subsequent  to  the  commis- 
sion of  the  offense:  B.  &C.Comp.  §  1921.  It  is  stated  in  the 
brief  of  appellant's  counsel  that  at  the  time  of  the  homi- 
cide the  defendant  was  keeping  company  with  another 
young  woman  who  lived  near  Milton,  to  whom,  the  testi- 
mony tended  to  show,  he  was  presumably  engaged  to  be 
married.  Assuming  this  to  be  so,  it  is  improbable  that  he 
would  willingly  marry  Miss  Preston,  and  hence,  if  he  was 
found  guilty  of  seducing  h-er,  a  sentence  of  imprisonment 
confronted  him,  which  was  threatened  by  her  father,  who, 
as  the  testimony  shows,  when  he  first  called  upon  the  de- 
fendant, informed  him  of  his  daughter's  condition,  ac- 
cused him  of  being  responsible  therefor,  and  told  him 
that  he  **  would  have  to  do  something  about  it  ♦  ♦  or  be 
put  behind  the  bars."  The  defendant's  unwillingness  to 
marry  Miss  Preston  and  the  consequences  that  might 
result  to  him  from  his  refusal  to  enter  into  that  relation 
with  her,  by  being  imprisoned,  which  punishment  was 
threatened,  might  supply  the  motive  that  induced  the 
taking  of  the  life  of  the  deceased.  As  the  formal  charge 
of  murder  in  the  first  degree  made  motive  an  element  to 
be  considered  by  the  jury  in  determining  the  state  of  the 
defendant's  mind  towards  the  deceased  prior  to  and  at  the 
time  of  the  homicide,  which  inducement  might  be  implied 


288  State  v.  Martin.  [47  Or. 

from  the  testimony  so  objected  to,  no  error  was  committed 
in  the  introduction  thereof.  Such  testimony  being  ad- 
missible, no  error  was  committed  in  permitting  the  dis- 
trict attorney,  in  his  opening  statement  to  the  jury,  briefly 
to  allude  to  the  facts  which  the  State  expected  to  prove  at 
the  trial. 

Whether  or  not,  to  determine  the  existence  of  a  motive 
for  the  commission  of  a  crime,  the  admission  of  testimony 
tending  to  show  that  a  defendant  in  a  criminal  action  has 
committed  other  independent  offenses,  can  be  carried  to 
the  extent  allowed  in  State  v.  Reed,  53  Kan.  767  (37  Pac. 
174,  42  Am.  St.  Rep.  322),  to  which  attention  has  been 
called,  is  not  necessary  to  a  decision  herein,  for  in  the  case 
at  bar  no  "detailed"  inquiry  was  even  attempted  by  the 
State  to  prove  the  defendant  guilty  of  seduction ;  the  tes- 
timony on  that  subject  and  the  statement  of  the  district 
attorney  being  general  only.  The  testimony  so  objected 
to  and  the  statement  based  thereon  were  only  such  as 
tended  to  show  the  information  upon  which  the  deceased 
acted  in  demanding  that  the  defendant  do  something  to 
mitigate  the  injury  it  was  claimed  he  had  inflicted,  and 
to  diminish  the  resulting  disgrace  it  was  insisted  he  had 
caused,  or,  failing  in  this  respect,  to  suffer  the  consequence 
of  his  wrong.  To  show  that  the  jury  must  have  understood 
the  purpose  for  which  this  testimony  was  received,  the 
court,  in  its  general  charge,  said : 

"Some  evidence  has  been  introduced  in  this  case  which 
might  tend  to  show  that  defendant  committed  a  crime  in 
his  relations  with  the  daughter  of  the  deceased,  but  I 
instruct  you  that  defendant  is  not  on  trial  here  for  any 
such  crime,  and  in  this  case  you  must  not  in  any  manner 
allow  that  evidence  to  prejudice  you  against  the  defendant, 
nor  can  you  consider  that  evidence  as  going  to  show  de- 
fendant to  be  a  bad  man  or  a  good  man,  or  a  moral  or 
immoral  man.  The  only  purpose  for  which  you  can  con- 
sider such  evidence  is  in  relatio*n  to  the  question  :  What, 


Jan.  1906.]  State  v,  Martin.  289 

if  any,  motive  deceased  had  for  attacking  defendant,  or 
what,  if  any,  motive  defendant  had  for  seeking  or  attack- 
ing the  deceased?** 

When  we  take  into  account  the  meager  statement  by 
the  district  attorney  of  the  defendant's  possible  commis- 
sion of  an  independent  offense,  the  slight  testimony  offered 
upon  that  subject,  and  the  careful  instruction  in  relation 
thereto,  it  is  quite  evident  that  the  jury  were  not  misled 
thereby  or  prejudiced  against  the  defendant,  and  that  they 
considered  such  statement  and  testimony  only  to  deter- 
mine the  motive  of  the  respective  parties  to  the  combat 
which  resulted  in  Preston's  death. 

2.  Minnie  Preston,  appearing  for  the  State,  testified  that 
she  witnessed  the  combat  between  her  father  and  the  de- 
fendant, detailing  the  position  occupied  by  each  immedi- 
ately preceding  and  at  the  time  the  fatal  shot  was  fired, 
and  also  stated,  on  cross-examination,  that  she  was  a  wit- 
ness at  the  coroner's  inquest  held  the  morning  after  the 
homicide,  and  had  there  given  no  testimony  variant  from 
that  uttered  at  the  trial  herein,  denying  that  she  testified 
at  such  inquest  relating  to  the  positions  respectively  as- 
sumed by  her  father  and  the  defendant,  as  imputed  to 
her  by  the  defendant's  counsel.  This  witness  was  then 
attempted  to  be  impeached  by  a  duly  authenticated  tran- 
script of  what  purported  to  be  the  testimony  given  at  such 
inquest,  but  before  tendering  such  writing  to  her  the  ste- 
nographer who  took  the  evidence  received  at  the  inquest, 
appearing  as  defendant's  witness,  was  unable  to  say  that 
his  notes  of  the  testimony  contained  an  accurate  statement 
of  what  the  daughter  of  the  deceased  asserted  under  oath 
before  the  coroner.  The  shorthand  reporter,  alluding  to 
the  condition  of  such  witness  and  to  her  manner  of  testi- 
fying, and  probably  attempting  to  excuse  his  inability  cor- 
rectly to  report  the  evidence,  for  he  is  an  amateur,  said : 

47  Or. 19 


290  Statb  V,  Martin.  [47  Or. 

"She  was  excited  and  crying,  if  I  remember  right,  and  she 
talked  very  rapidly."  This  stenographer  not  being  per- 
mitted to  read  his  notes  of  the  testimony,  an  exception 
was  allowed,  whereupon  defendant's  counsel  said:  '*Miss 
Preston,  I  hand  you  what  has  been  called  in  this  case  the 
'transcript  of  your  evidence,'  given  at  the  coroner's  inquest 
about  the  19th  day  of  May,  near  Freewater,  in  this  county. 
I  will  ask  you  to  examine  page  four  of  that  transcript  and 
say  whether  or  not  this  is  a  full  and  complete  transcript 
and  narrative  of  your  testimony  given  at  that  time."  An 
objection  having  been  interposed,  the  court  would  not  per- 
mit the  witness  to  examine  the  writing  tendered,  on  the 
ground  that  the  stenographer's  testimony  showed  that  it 
was  not  a  complete  transcript  of  the  evidence  given  at  the 
inquest,  and  an  exception  was  saved. 

It  is  insisted  by  defendant's  counsel  that  an  error  was 
committed  in  not  allowing  them  to  impeach  Miss  Preston 
in  the  manner  indicated.  Our  statute  permits  the  impeach- 
ment of  a  witness  by  evidence  that  he  has  made  at  other 
times  statements  inconsistent  with  his  present  testimony, 
but,  if  such  statements  are  in  writing,  they  must  be  shown 
to  the  witness  before  any  question  is  put  to  him  concern- 
ing them :  B.  &  C.  Com  p.  §  853.  In  State  v.  Crockett,  39 
Or.  76  (65  Pac.  447),  it  was  held  that  the  testimony  of  a 
witness  given  before  a  coroner  was  prima  facie  evidence  of 
what  the  deponent  swore  to,  and  that,  when  the  proper  foun- 
dation was  laid,  it  was  admissible  for  the  purpose  of  con- 
tradicting him.  *Trima  faqie  evidence,"  says  Mr.  Justice 
Foster,  in  Emmons  v.  Westfield  Bank,  97  Mass.  230,  **we 
understand  to  be  evidence  which,  standing  alone  and  un- 
explained, would  maintain  the  proposition  and  warrant  the 
conclusion  to  support  which  it  is  introduced."  Prima  facie 
evidence  is  that  degree  of  proof  which,  if  unchallenged,  is 
sufficient  in  law  to  establish  a  relevant  fact :  Crane  v.  Mor- 
ris, 31  U.  S.  (6  Pet.) 598 (8  L.  Ed.  514);  State  v.  Lawlor,28 


Jan.  1906.]  State  v,  Martin.  291 

Minn.  216  (9  N.  W.  698).  It  will  be  remembered  that  the 
statements  made  under  oath  by  Minnie  Preston  at  the  cor- 
oner's inquest,  the  certainty  of  which  as  to  its  entirety 
might  possibly  have  been  established  by  the  mere  produc- 
tion of  an  authenticated  transcript,  if  a  proper  foundation 
had  been  laid,  is  rendered  doubtful  as  to  its  completeness 
by  the  declarations  of  the  stenographer  who  attempted  to 
take  her  testimony.  If  it  were  assumed  that  the  disputable 
presumption  that  oflBcial  duty  has  been  regularly  per- 
formed makes  evidence  of  an  authenticated  transcript  of 
testimony  taken  at  the  trial  of  an  action,  or  at  the  inquiry 
by  a  coroner  into  the  cause  of  the  death  of  a  person  slain, 
or  of  a  person  who  dies  under  such  circumstances  as  to 
create  a  suspicion  of  the  commission  of  a  crime,  admissi- 
ble, it  appears  in  the  case  at  bar  that  such  duty  was  not 
properly  discharged,  and,  as  the  basis  upon  which  the  pre- 
sumption should  rest  never  had  any  existence,  it  follows 
that  no  proper  foundation  was  laid  for  the  deduction  which 
the  law  expressly  directs  to  be  made  from  particular  facts. 
The  stenographer  being  unable  to  say  that  his  notes  of  the 
testimony  taken  before  the  coroner  contained  all  that  Miss 
Preston  uttered  under  oath  at  the  inquest,  she  could  not 
be  contradicted  by  the  reading  of  such  notes  or  impeached 
by  the  production  of  a  translated  transcript  thereof,  and 
no  error  was  committed  as  alleged.  The  defendant  was 
evidently  not  prejudiced  by  such  ruling,  for  the  court 
offered  to 'permit  his  counsel  to  lay  a  foundation  for  the 
impeachment  of  Minnie  Preston  in  the  manner  prescribed 
by  statute,  by  calling  her  attention  to  the  time,  place  and 
persons  present  when  she  gave  her  testimony  before  the 
coroner,  and  to  ask  her  on  cross-examination  whether  or 
not  she  testified  in  a  given  manner,  detailing  what  it  was 
claimed  she  said  under  oath  at  the  inquest,  and,  if  she  de- 
nied giving  the  testimony  imputed  to  her  or  could  not 
remember  what  she  said  on  that  occasion,  to  call  witnesses 


292  State  v.  Martin.  [47  Or. 

who  were  present  at  the  inquest  and  heard  her  testify  to 
impeach  her. 

3.  Dr.  C.  W.  Thomas,  appearing  as  a  witness  for  the 
State,  testified  that  he  was  a  graduate  of  a  medical  school 
and  a  licensed  physician,  and  that  he  visited  O.  N.  Preston 
at  the  time  he  was  shot  and  found  a  lacerated  wound  over 
the  cheek  bone,  his  nose  broken,  and  the  flesh  under  his 
eyes  discolored,  whereupon  he  was  asked  whether  or  not, 
in  his  opinion,  the  injury  to  the  cheek  bone  could  have 
been  caused  by  a  blow  from  a  man's  naked  fist.  An  objec- 
tion to  this  question  on  the  ground  that  it  was  incompe- 
tent having  been  overruled  and  an  exception  allowed,  the 
witness  answered  :  **In  my  opinion  it  could  not  have  been 
caused  from  the  blow  of  a  man's  naked  fist."  It  is  main- 
tained by  defendant's  counsel  that  as  no  testimony  had 
been  given  tending  to  show  that  Dr. Thomas  was  qualified, 
either  by  experience  or  by  study,  to  express  an  opinion 
upon  the  subject  to  which  the  question  related,  an  error 
was  committed  in  permitting  him  to  answer  the  interroga- 
tory propounded  to  him.  It  will  be  remembered  that  the 
objection  interposed  was  not  directed  to  any  inability  of 
the  witness  to  express  the  opinion,  but  to  the  incompetency 
of  the  question  asked.  If  defendant's  counsel  had  stated 
that  they  objected  to  any  answer  that  might  be  given  by 
the  witness  in  response  to  the  inquiry,  because  no  testi- 
tony  had  been  offered  tending  to  show  that  he  was  quali- 
fied to  express  an  opinion  upon  the  subject  to  which  his 
attention  was  called,  the  trial  court  would  have  had  an  op- 
portunity to  require  the  production  of  further  testimony 
relating  to  the  question  of  his  qualification.  The  object  of 
every  objection  interposed  at  the  trial  of  a  cause,  and  of  the 
exception  to  the  court's  ruling  thereon,  is  to  incorporate 
into  the  bill  of  exceptions  the  particular  legal  proposition 
submitted  to  and  decided  by  the  trial  court,  so  that  upon 
an  appeal  from  its  ruling  an  appellate  tribunal  may  be  able 


Jan.  1906.]      Steel  v.  Island  Milling  Co.  293 

to  review  the  identical  question  considered.  As  the  objec- 
tion which  was  made  related  to  the  alleged  incompetency 
of  the  question  and  not  to  the  incompetency  of  the  witness 
to  express  an  opinion,  the  legal  principle  now  insisted  upon 
was  evidently  not  considered  by  the  trial  court,  and,  this 
being  so,  no  error  was  committed  in  permitting  Dr.  Thomas 
to  answer  the  question  propounded  after  he  had  testified 
that  he  was  a  graduate  of  a  medical  school  and  a  licensed 
physician,  thus  showing  a  prima  facie  qualification. 

Other  exceptions  are  noted,  but,  as  they  are  not  argued 
in  the  brief  of  defendant's  counsel,  and  an  examination 
thereof  shows  them  to  be  without  merit,  the  judgment  is 
affirmed.  Affirmed. 

The  firm  of  which  Mr.  Justice  Hailey  was  a  member 
having  been  of  counsel  at  the  preliminary  examination 
of  this  case,  he  took  no  part  in  the  consideration  hereof. 


Decided  2  January,  ]90tf. 
STBEL   V,  ISLAND  MILLING  00. 
88  Pac.  788.  y^ 

Corporation  Stock  — Dividends— To  Whom  Payable.* 

1.  A  corporation  paying  a  dividend  on  stock  to  a  person  appearing  on  Ma 
books  as  owner,  after  it  has  received  notice  that  the  stock  tias  been  transferred 
to  a  third  person,  is  liable  to  the  third  person  for  the  amount  of  the  dividend, 
though  at  the  time  the  dividend  was  declared  it  had  no  such  notice,  and  though 
the  amount  thereof  was  at  once  passed  to  the  credit  of  the  stockholder  on  Its 
books. 

WHAT  Constitutes  a  Payment  of  an  Obi^ioation. 

2.  A  payment  of  a  pecuniary  obligation  Is  made  only  by  the  delivery  and 
aooeptance  of  money  or  what  the  creditor  agrees  shall  be  Its  equivalent. 

Debtor  and  Creditor  — Payment  After  Warning  — Corporations. 

3.  A  corporation  holding  an  unpaid  dividend  has  the  same  relation  to  Its 
stockholders,  or  whoever  else  may  own  the  dividend  claim,  that  any  debtor  has 
to  a  creditor,  and  must  recognize  the  true  owner  of  the  dividend.  If  he  Is  known, 
though  a  payment  to  the  apparent  owner  without  notice  of  a  transfer  of  the  claim 
will  protect  the  company. 


From  Union  :   Robert  Eakin,  Judge. 


*  Note.—  On  the  question  of  the  Right  to  Dividends  on  Stock  Transferred,  see 
notes  in  90  Am.  SU  Rep.  721,  and  45  L.  R.  A.  892-897.—  Reporter. 


294  *  Stkbl  v.  Inland  Milling  Co.  [47  Or. 

Action  by  Cora  Steel  against  the  Island  City  Mercantile 
&  Milling  Co.,  resulting  in  a- judgment  for  plaintiff,  from 
which  defendant  appeals.  Affirmed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr.  Charles  H  Finn. 

For  respondent  there  was  a  brief  and  an  oral  argument 
by  Mr.  James  Davis  Slater. 

.   Mr.  Chief  Justice  Bean  delivered  the  opinion. 

This  is  a  suit  by  a  stockholder  against  a  corporation  for 
an  accounting  for  dividends  declared  on  its  capital  stock. 
On  January  15,  1890,  the  defendant  issued  and  delivered 
to  R.  M.  Steel  100  shares  of  its  capital  stock  ;  the  certificate 
thereof  providing  that  the  shares  "are  only  transferable 
upon  the  books  of  the  company,  subject  to  the  provisions 
of  the  by-laws,  by  indorsement  hereon  and  surrender  of 
this  certificate."  On  March  16, 1896,  Steel  sold  and  trans- 
ferred the  stock  and  certificate  to  the  R.  M.  Steel  Co.,  and 
on  the  next  day  the  R.  M.  Steel  Co.  transferred  the  same 
as  a  pledge  or  collateral  security  to  George  A.  Steel.  The 
debt  for  which  the  stock  was  held  by  George  A.  Steel  as 
security  was  not  paid,  and  on  May  28, 1901,  the  stock  was 
sold  in  pursuance  of  law  in  foreclosure  of  such  pledge  to 
the  plaintiff,  Cora  Steel.  None  of  the  transfers  referred 
to  were  made  on  the  books  of  the  company,  nor  was  the 
corporation  advised  thereof  until  June  14, 1901,  when  the 
original  certificate,  together  with  the  several  transfers 
attached  thereto,  was  delivered  by  the  plaintiff  to  the  com- 
pany and  a  new  certificate  issued  to  her  in  lieu  thereof. 
The  proceeds  of  the  sale  of  the  stock  on  the  foreclosure 
were  not  sufficient  to  satisfy  the  debt  for  which  it  was  held 
as  security  by  George  A.  Steel,  and  some  time  after  the  sale, 
and  prior  to  January  30,  1903,  Steel  assigned  and  trans- 
ferred his  interest  in  all  dividends  declared  by  the  com- 
pany after  March  17, 1896,  to  the  plaintiff,  and  in  February 


Jan.  1906.]      Steel  v.  Island  Milling  Co.  '  295 

of  that  year  she  notified  the  defendant  of  such  transfer  and 
demanded  the  payment  by  it  of  all  dividends  declared  after 
the  date  of  the  assignment  by  the  R.  M.  Steel  Co.  to  George 
A.  Steel,  but  it  refused  to  make  such  payments,  and  hence 
this  s.uit. 

The  plaintiff  alleges  that  a  dividend  of  $25  a  share  was 
declared  by  the  corporation  on  January  27, 1900,  payable, 
one  half  on  June  1,  and  the  remainder  on  September  1, 
following,  and  that  she  had  reason  to  believe  and  did 
believe  that  since  that  date  other  and  different  dividends 
had  been  declared,  but  that  the  officers  of  the  corporation 
refused  to  give  her  any  information  thereof,  and  that  no 
payments  of  any  such  dividends  had  been  made  to  her, 
although  lawfully  demanded.  Upon  the  coming  in  of  the 
answer  and  proofs,  it  was  shown  and  is  admitted  that  a 
dividend  of  125  a  share  was  declared  in  January,  1900, 
but  that  no  dividends  had  been  declared  since  that  time. 
The  defense  is  that  the  dividend  declared  in  January,  1900, 
was  paid  by  the  company  to  the  administrator  of  the  estate 
of  R.  M.  Steel,  in  whose  name  the  stock  stood  on  its  book, 
without  notice  or  knowledge  of  the  several  transfers,  or  of 
any  of  them,  and  before  any  demand  was  made  therefor 
by  the  plaintiff  or  any  one  else.  The  evidence  shows  that 
at  or  about  the  time  the  dividend  was  declared  the  amount 
thereof  was  passed  to  the  credit  of  R.  M.  Steel's  estate  on 
the  books  of  the  company,  but  the  money  was  not  actually 
paid  to  the  administrator  of  the  estate  until  June  6, 1903, 
after  the  corporation  had  been  notified  of  the  purchase  of 
the  stock  by  the  plaintiff  and  the  assignment  to  her  of 
George  A.  Steel's  right  to  the  dividends,  and  a  demand 
for  the  payment  thereof  had  been  made. 

1.  At  the  time  the  dividend  was  declared  George  A. 
Steel  was  the  holder  of  the  stock  a3  pledgee  and  had  a  right 
to  receive  it,  notwithstanding  the  certificate  on  its  face 
stated  that  the  shares  were  only  transferable  on  the  books 


296  Steel  v.  Island  Milling  Co.  [47  Or. 

of  the  company,  and  no  such  transfer  had  been  made,  and 
unless  the  defendant  has  paid  the  amount  of  such  dividend 
to  the  representative  of  the  person  who  appeared  on  its 
books  to  be  the  owner  thereof,  without  notice  of  the  trans- 
fer, his  assignee,  the  plaintiff,  is  entitled  to  recover  the 
same:  22  Am.  &  Eng.  Enc.  Law  (2  ed.),  907.  ** Where,  for 
the  protection  of  the  corporation,  it  is  expressly  provided 
in  its  certificates  of  stock,''  say  Messrs.  Clark  and  Marshall, 
"that  the  shares  are  not  transferable,  except  on  the  books 
of  the  corporation,  the  corporation  is  not  bound  to  look 
beyond  its  books,  assuming  that  they  have  been  kept 
properly,  to  determine  who  is  entitled  to  dividends,  but 
it  may  safely  pay  them  to  those  persons  who  appear  on 
the  books  to  be  shareholders,  and  it  will  be  protected  in 
such  payment,  notwithstanding  transfers  made  before  the 
dividend  was  declared,  but  which  had  not  been  entered 
upon  its  books,  and  of  which  it  had  no  notice.  It  is  other- 
wise, however,  if  it  has  notice  of  the  transfer.  In  such  a 
case,  if  it  pays  the  dividend  to  the  person  appearing  on 
its  books  as  owner,  it  remains  liable  to  the  transferee, 
whether  the  transfer  was  absolute  or  merely  as  collateral, 
notwithstanding  his  omission  to  have  the  transfer  regis- 
tered": 2  Clark  &  M.  Priv.  Corp.  p.  1612.  And,  again,  it 
is  said  by  the  same  authors  (page  1611):  "In  the  absence 
of  agreement  to  the  contrary,  a  pledge  of  shares  of  stock 
as  collateral  security  carries  with  it,  as  an  incident  of  the 
pledgee's  special  ownership,  the  right  to  receive  dividends 
afterwards  declared,  to  be  applied  on  the  debt,  or  held  in 
trust  for  the  pledgor;  and,  if  the  transfer  has  been  regis- 
tered on  the  books  of  the  corporation,  or,  although  not  so 
registered,  if  the  corporation  has  notice  thereof,  it  will  be 
liable  to  the  pledgee  if  it  pays  such  dividends  to  the 
pledgor."  To  the  same  effect  see  Central  Nat,  Bank  v. 
Wilder,'32  Neb.  454  (49  N.  W.  369);  Farmers'  &  M.  Nat, 
Bank  v.  Moaher,  63  Neb.  130  (88  N.  W.  552);  Clark  w. 


Jan.  1906.]       Stbel  v.  Island  Milling  Co.  297 

Campbell,  23  Utah,  569  (65  Pac.  496,  54  L.  R.  A.  508,  90 
Am.  St.  Rep.  716).  Central  Nat.  Bank  v.  Wilder,  32  Neb. 
454  (49  N.  W.  369),  was  much  like  the  case  at  bar.  The 
stock  pledged  had  been  sold  by  the  pledgee  and  the  pro- 
ceeds applied  on  the  debt,  leaving  a  balance  unpaid.  The 
pledgee  thereafter  brought  an  action  to  recover  of  the  cor- 
poration a  dividend  declared  before  the  sale,  and  while 
the  stock  was  held  by  him  in  pledge,  and  it  was  decided 
that  he  was  entitled  to  recover.  Unless,  therefore,  the  de- 
fendant corporation  paid  the  dividend  to  the  administrator 
of  the  estate  of  R.  M.  Steel  before  receiving  notice  of  the 
assignment  and  transfer  to  the  plaintiff,  she  is  entitled  to 
recover.  Now,  the  evidence  shows  that  the  dividend  was 
not  paid,  in  fact,  at  the  time  it  was  declared,  or  until  long 
after  the  corporation  had  received  notice  of  the  plaintiff's 
ownership  and  right  thereto. 

2.  The  passing  of  the  amount  thereof  to  the  credit  of 
the  stockholder  on  the  books  of  the  company  was  a  mere 
matter  of  bookkeeping,  and  in  no  sense  amounted  to  a 
payment.  The  payment  of  a  pecuniary  obligation  is  made 
by  the  delivery  of  money  or  something  which  is  accepted 
by  the  creditor  as  equivalent  thereto :  22  Am.  &  Eng.  Enc. 
Law  (2  ed.),  517;  Tolman  v.  Manufacturers  Ins,  Co.,  1  Cush. 
73;  Beale  v.  Home  Ins.  Co.,  36  N.  Y.  522. 

3.  When  the  dividend  was  declared,  the  defendant  be- 
came indebted  to  each  stockholder  for  his  share,  and  each 
was  in  the  same  position  as  any  other  creditor  of  the  cor- 
poration and  had  a  right  to  enforce  or  assign  his  demand 
in  like  manner.  If  the  corporation,  without  notice  of  the 
transfer  or  assignment  of  the  dividend,  had  paid  the  same 
to  the  apparent  holder  of  the  stock,  it  would  be  discharged, 
but  after  such  notice  it  was  bound  to  pay  the  true  owner. 

The  judgment  of  the  court  below  will  therefore  be  af- 
firmed. Affirmed. 


298  Pope  v.  Pope.  [47  Or. 

Decided  2  Janaary,  1906. 
POPE  V.  POPS. 

83  Pac.  786. 

Divorce  —Alimony  —Amount. 

1.  Where  a  decree  of  divorce  was  granted  on  the  grounds  of  cruelty  and  adul- 
tery by  the  husband,  who  was  the  owner  of  $1,500  worth  of  personal  property  and 
real  estate  worth  $8,000,  and  pending  the  suit  it  was  stipulated  that  the  defendant 
would  pay  $200  for  the  expenses  of  the  suit,  and  $20  a  month  during  its  pendency, 
and  the  final  decree  allowed  plaintiff  $1,000  permanent  alimony,  but  no  monthly 
payments  were  made  after  the  decree  of  the  trial  court,  on  appeal  the  permanent 
alimony  will  be  increased,  so  as  to  add  $20  a  month  from  the  date  of  the  decree  in 
the  court  below  till  the  date  of  the  final  decree  on  apKieal. 

Costs  in  Equity  Cases  —  Discretion. 

2.  Under  Section  566,  B.  A  C.  Comp.,  the  supreme  court  may  assess  the  costs 
and  disbursements  of  both  the  trial  and  the  appeal  to  such  of  the  parlies  and  in 
such  proportions  or  amounts  as  discretion  may  suggest. 

From  Grant:    Robert  Eakin,  Judge. 
Suit  for  a  divorce  by  Mary  Agnes  Pope  against  William 
M.  Pope,  in  which  plaintiff  prevailed.  Affirmed. 

For  appellant  there  was  a  brief  over  the  name  of  Errett 
Hicks,  with  an  oral  argument  by  Mr.  Hicks  and  Mr.  Morton 
D.  Clifford, 

For  respondent  there  was  a  brief  over  the  names  of  A.  D, 
Leedy  and  Parrish  &  Rembold,  with  an  oral  argument  by 
Mr.  Leedy. 

Per  Curiam.  1.  This  is  a  suit  for  a  divorce.  The  com- 
plaint charges  cruelty  and  inhuman  treatment,  and  the 
commission  of  adultery  by  the  defendant.  The  defendant 
is  the  owner  of  about  $4,500  worth  of  personal  property, 
and  real  estate  of  the  probable  value  of  $8,000.  Soon  after 
the  commencement  of  the  suit  it  was  stipulated  between 
the  parties  that  the  defendant  would  pay  $200  to  enable 
the  plaintiff  to  prosecute  her  suit,  and  $20  a  month  dur- 
ing the  pendency  of  the  suit.  The  $200  was  paid  as  agreed 
upon,  and  the  alimony  until  the  decree  of  the  court  below 
on  January  15,  1905.  Since  that  time  no  payment  of  ali- 
mony has  been  made.  The  court  below  granted  a  decree 
in  favor  of  the  plaintiff,  dissolving  the  bonds  of  matrimony 


Jan.  1906.1    Boothb  v.  Farmbrs'  Nat.  Bank.  299 

existing  between  her  and  the  defendant,  and  gave  her 
11,000  permanent  alimony  and  an  undivided  one  third 
interest  in  the  defendant's  real  estate.  From  this  decree, 
the  defendant  appeals.  The  question  for  decision  is  one 
of  fact,  and  it  is  sufficient  that  from  an  examination  of  the 
testimony  we  concur  with  the  trial  court  in  the  conclusion 
reached.  The  decree  will  therefore  be  affirmed,  but  the 
amount  of  the  permanent  alimony  will  be  increased,  so  as 
to  cover  |20  a  month  from  the  date  of  the  decree  in  the 
court  below  until  the  final  decree  here. 

2.  The  defendant  will  be  adjudged  to  pay  the  costs  of 
the  appeal,  but  the  decree  of  the  court  below  may  stand  as 
to  the  costs  in  that  court.  Modified. 


Decided  2  January,  1906. 
BOOTHB  V.  FABMB&S'  NATIONAL  BANK. 

.88  Pac.  785. 

Conformity  or  Plradings  and  Proofs. 

1.  Parties  mast  recover  in  legal  proceedloffs  apon  the  claims  asserted  in  their 
pleadings,  and  not  upon  other  rights  or  Issues  Ihat  may  appear  in  the  evidence. 
For  instance,  in  an  action  to  recover  specific  deposits  in  a  bank,  where  the  court 
finds  that  the  deposits  sued  on  have  been  paid,  but  that  the  bank  owes  the  plain- 
tiff a  certain  sum  on  other  deposits,  the  plaintiff  is  not  entitled  to  recover  Judg- 
ment for  the  amount  due  him,  as  he  made  no  claim  to  that  money. 

Trial  by  Court  — Findings  Must  Foi^low  Pleadings. 

2.  Findings  outside  the  issues  of  the  pleadings  are  nullities  and  will  not  sup- 
port any  final  order,  not  being  responsive  to  the  issues. 

From  Union:  Robert  Eakin,  Judge. 

Action  by  S.  S.  Boothe  against  the  Farmers'  &  Traders' 
National  Bank  of  La  Grande,  resulting  in  a  judgment  for 
defendant,  from  which  plaintiff  appeals.        Affirmed. 

For  appellant  there  was  a  brief  over  the  name  of  Lomax 
&  Anderson,  with  an  oral  argument  by  Mr.  Gustave  An- 
derson, 

For  respondent  there  was  a  brief  and  an  oral  argument 
by  Mr.  James  Davis  Slater. 


300  BooTHE  v.  Farmers'  Nat.  Bank.  [47  Or. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

This  is  an  action  at  law  to  recover  a  balance  alleged  to 
be  due  the  plaintiff  on  certain  deposits  made  by  him  with 
the  defendant  bank.  The  complaint  alleges  that  the  plain- 
tiff deposited  with  the  defendant  on  October  21,  1897, 
$10,350;  on  October  26,  $2,540 ;  on  October  28,  $670 ;  on 
November  2,  1898,  $276;  on  November  28,  $4,626.80,  and 
on  April  5, 1899,  $1,050;  thatit  was  understood  and  agreed 
between  them  that  all  deposits  should  bear  5  per  cent 
interest  to  November  28,  1898,  and  4  per  cent  thereafter ; 
that  no  part  of  the  money  so  deposited  by  plaintiff  with 
the  defendant,  or  interest  thereon,  has  been  paid,  except 
the  sum  of  $9,014,  and  judgment  is  demanded  for  the 
balance.  The  answer  admits  the  receipt  of  the  several 
amounts  by  the  defendant  substantially  as  alleged  in  the 
complaint,  but  avers  that  a  portion  of  the  money  so  de- 
posited was  repaid  in  cash  to  the  plaintiff  and  that  cer- 
tificates of  deposit  were  issued  to  him  for  the  remainder, 
which  certificates  have  been  paid  and  canceled  by  it.  By 
way  of  counterclaim  it  is  alleged  that  between  the  18th  of 
November,  1897,  and  May  27, 1903,  divers  sums  of  money 
were  deposited  with  the  defendant  to  the  credit  of  plain- 
tiff on  open  account,  subject  to  his  check,  amounting  in 
the  aggregate  to  $12,441.39,  and  that  it  has  paid  to  him 
on  his  checks  and  orders,  interest  on  overdrafts,  and  in 
satisfaction  of  promissory  notes  held  by  defendant  against 
him,  $12,624.23,  leaving  a  balance  due  it  of  $182.84,  for 
which  it  prays  judgment.  The  reply  denies  the  allega- 
tions of  the  answer,  and  affirmatively  alleges  that,  if  the 
several  items  of  deposit  stated  in  the  answer  to  have  been 
made  with  the  defendant  on  plaintiff*s  account  between 
December  28, 1898,  and  May  27, 1903,  were  made  as  therein 
alleged,  it  was  without  the  knowledge  of  the  plaintiff,  and 
was  a  part  of  the  original  fund  mentioned  in  the  complaint, 
and  that,  if  certificates  of  deposit  were  issued  by  the  de- 


Jan.  1906.]    Boothe  v.  Farmers'  Nat.  Bank.  .       301 

fendant  for  any  portion  of  such  fund,  such  certificates 
were  left  with  the  defendant  bank,  and  have  never  been 
assigned,  indorsed  or  transferred  by  him,  or  by  any  one 
in  his  behalf,  or  taken  from  the  bank,  but  were  retained 
and  used  by  it. 

The  cause  was,  by  agreement  of  the  parties,  tried  by  the 
court  without  the  intervention  of  a  jury,  and  the  court 
found  that  the  several  sums  alleged  in  the  complaint 
were  deposited  with  the  defendant  on  plaintiff's  account, 
except  the  item  of  October  26, 1897,  was  $1,440  in  place  of 
$2,540,  as  stated  in  the  complaint,  and  that  the  item  of 
October  28  for  $670  was  the  amount  of  a  certificate  of  de- 
posit issued  by  it  to  plaintiff  for  a  part  of  the  $1,440  item  ; 
that  certificates  of  deposit  were  issued  by  the  bank  for  the 
several  amounts  so  deposited  at  the  time  the  deposits  were 
made,  except  $800  of  the  deposit  of  October  26, 1897,  which 
was  paid  to  him  in  cash ;  that  on  November  28,  1898, 
plaintiff  and  defendant  had  a  settlement  and  accounting 
at  which  time  the  plaintiff  surrendered  to  defendant  for 
cancellation  the  several  certificates  of  deposit  held  by 
him,  and  there  was  issued  in  lieu  thereof  one  certificate 
in  favor  of  McDaniels  for  $150,  another  in  favor  of  J.  W. 
Scriber  for  $10,625,  and  three  in  favor  of  the  plaintiff  for 
$2,000,  $1,000,  and  $307.30,  respectively;  that  the  balance 
found  due  the  plaintiff  was  applied  in  payment  of  his 
promissory  notes  to  the  bank,  except  $119.17,  which  was 
placed  to  the  credit  of  his  general  account  and  subject  to 
check;  that  on  April  7,  1899,  the  defendant  received  for 
and  on  account  of  plaintiff  $1,050,  for  which  it  issued  to 
him  a  certificate  of  deposit  for  $646.31,  and  applied  the 
balance  by  his  permission  on  his  notes,  and  the  certificate 
of  deposit  so  issued  to  him  was  paid  on  July  19,  1899; 
that  on  December  28,  1898,  plaintiff  deposited  with  the 
defendant  the  two  certificates  issued  to  him  on  that  day 


302  BooTHK  V.  Farmers'  Nat.  Bank.  [47  Or. 

for  $1,000  and  $307.30,  respectively,  subsequently  draw- 
ing the  amount  thereof  by  check ;  that  the  certificate  for 
$2,000,  issued  to  plaintiff  on  November  28,  1898,  was  left 
by  him  with  J.  W.  Scriber,  the  cashier  of  the  bank,  and 
on  July  28, 1889,  Scriber  indorsed  plaintiff's  name  thereon, 
and  the  same  was  surrendered  to  and  canceled  by  the 
bank;  that  of  the  amount  due  on  such  certificate  $468.48 
was  deposited  with  the  bank  to  plaintiff's  credit,  subject 
to  his  check,  and,  as  to  the  remainder,  the  finding  is : 

"Mr.  Scriber  claims  this  certificate  was  settled  for  with 
Mr.  Boothe  on  January  26,  1900,  but  how  it  was  settled 
for  does  not  appear,  and,  as  Boothe  did  not  indorse  the 
certificate,  no  presumption  can  arise  against  him,  and  the 
bank  should  be  charged  with  the  amount  of  the  certificate 
and  $80  interest  for  one  year,  less  the  deposit  of  $468.48, 
viz.,  $1,611.52." 

It  is  further  found  that  from  November  16, 1898,  to  Aug- 
ust 22,  1904,  the  defendant  received  on  open  account  for 
plaintiff  $11,898.02,  and  between  such  dates  paid  to  him, 
on  his  checks  and  orders,  $12,080.86,  from  which  should 
be  deducted  $419.12  for  errors  in  bookkeeping  and  over- 
charges, which  would  leave  a  balance  $236.28  due  plaintiff 
on  his  general  account,  which,  together  wath  $1,611.52 
above  referred  to,  would  make  a  total  balance  due  plaintiff 
from  the  defendant  of  $1,847.80. 

1.  A  judgment  was  rendered  in  favor  of  the  defendant, 
notwithstanding  the  finding  that  it  was  indebted  to  the 
plaintiff  in  the  sum  of  $1,847.80,  because  the  action  is  at 
law,  and  defendant  is  not  liable  on  any  of  the  causes  of 
action  set  out  in  the  complaint.  In  this  conclusion  we  are 
constrained  to  concur.  This  is  not  a  suit  for  an  account- 
ing, but  an  ordinary  action  at  law  to  recover  on  certain 
specified  items  of  indebtedness.  The  plaintiff  is  bound  to 
recover,  if  at  all,  upon  the  causes  of  action  alleged,  and 
not  upon  some  separate  and  distinct  cause  of  action  which 


Jan.  1906.]  Quackenbush  v.  Artesian  Land  Co.         308 

may  be  disclosed  by  the  evidence :  Hammer  v.  Downing^ 
39  Or.  504  (64  Pac.  651);  Union  St  Ry,  Co,  v.  First  Nat 
Bank,  42  Or.  606  (72  Pac.  586). 

2.  And  a  finding  of  fact  outside  the  issues  made  by  the 
pleadings  is  a  mere  nullity,  and  will  not  sustain  a  judg- 
ment: Male  V.  Schaut,  41  Or.  425  (69  Pac.  137);  Gamache 
V.  South  School  Diet.,  133  Cal.  145  (65  Pac.  301).  The  plain- 
tiff  sues  for  the  recovery  of  certain  specified  items  of  in- 
debtedness. The  findings  show  that  each  and  every  one 
of  them  has  been  paid  and  discharged  by  the  defendant. 
In  addition  to  finding  upon  the  issues  made  by  the  plead- 
ings, the  court  made  a  number  of  iindings,  presumably 
based  upon  the  evidence,  from  which  it  would  appear  that 
the  defendant  is  indebted  to  the  plaintiff  upon  a  certificate 
of  deposit  issued  to  him  on  November  28,  1898,  and  on 
overcharges  for  interest  and  the  like ;  but  these  matters 
were  entirely  outside  the  issues,  and  will  not  support  a 
judgment  in  this  cause  in  plaintiff's  favor. 

It  follows,  therefore,  that  the  judgment  as  rendered  must 
be  affirmed,  but  it  will  be  so  framed  as  not  to  bar  any  sub- 
sequent proceeding  instituted  by  the  plaintiff  to  recover 
whatever  may  be  due  him.  Affirmed. 


Decided  9  January,  1906. 
aUAGKSNBUSH  v,  ABTESIAN  LAND  00. 

83  Pac.  787. 

Effect  of  Stipulation  on  Parties  Not  Bigninq. 

1.  A  stipulation  Is  binding  on  only  the  parties  who  slcn  It,  and  parties  to  the 
litigation  who  do  not  assent  thereto  are  not  precluded  by  Its  terms. 

Mechanics'  Liens  — Agency  of  Contractor  for  Owner. 

2.  Section  5(M0,  B.  A  C.  Comp.,  making  a  contractor  for  a  building  or  improve- 
ment the  agent  of  the  owner,  creates  an  agency  to  bind  such  owner  and  his 
property  included  In  the  contract  for  the  reasonable  value  of  materials  used  and 
labor  employed  on  the  work,  but  It  does  not  create  an  agency  to  determine  the 
value  of  such  materials  or  labor. 

From  Malheur:  George  E.  Davis,  Judge. 


304  QuACKBNBUsH  V,  Artesian  Land  Co.       [47  Or. 

'Suit  by  Quackenbush  &  Burroughs  to  foreclose  a  lieu 
on  an  irrigating  canal  for  its  construction.  There  was  a 
decree  for  plaintiffs.  Reversed. 

For  appellants  there  was  a  brief  over  the  names  oi  A.N. 
Soliss  and  Richards  &  Haga,  with  an  oral  argument  by  Mr. 
Oliver  0.  Haga. 

For  respondents  there  was  a  brief  over  the  name  of  John 
W.  McCulloch. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

The  defendant  the  Artesian  Springs  Water  &  Land  Co. 
is  the  owner  of  a  ditch  or  canal  and  water  right  in  Mal- 
heur County.  In  1902  it  entered  into  a  contract  with  the 
defendants  Hoskins  &  Harkins  for  the  construction  of  such 
ditch  or  canal.  Hoskins  &  Harkins  sublet  a  portion  of  the 
work  to  plaintiffs,  and,  failing  to  pay  for  the  work  done  by 
them,  plaintiffs  filed  a  lien  upon  the  ditch  and  water  right, 
and  subsequently  brought  this  suit  to  foreclose  it.  In  their 
complaint  they  allege  that  they  were  to  receive  a  certain 
rate  per  cubic  yard  for  removing  earth  and  a  certain  rate 
per  cubic  yard  for  removing  material  that  could  not  be 
removed  without  breaking  or  blasting ;  that  they  removed 
a  certain  quantity  of  dirt  and  a  certain  amount  of  other 
material;  that  the  aggregate  value  of  the  work  so  per- 
formed by  them,  according  to  the  contract  price,  was 
12,788.63,  no  part  of  which  has  been  paid,  except  the  sum 
of  $945.90.  The  defendant  the  Artesian  Springs  Water  & 
Land  Co.  and  the  defendants  Hoskins  &  Harkins  answered 
separately.  The  water  and  land  company  admitted  making 
a  contract  with  Hoskins  &  Harkins  for  the  construction 
of  the  ditch,  but  put  in  issue  the  amount  and  value  of  the 
work  performed  by  the  plaintiffs,  and  the  validity  of  their 
alleged  lien.  Hoskins  &  Harkins  admitted  that  the  water 
and  land  company  is  the  owner  of  the  ditch  and  water 
right,  and  that  they  entered  into  a  contract  with  the  plain- 


Jan.  1906.]  Quackbnbdsh  v.  Artesian  Land  Co.  305 

tiffs  to  perforin  a  part  of  the  work,  but  put  in  issue  the 
amount  of  work  performed  by  them,  the  price  to  be  paid 
therefor,  the  payments  made,  the  amount  due  and  the 
validity  of  their  lien.  Issue  was  joined  on  the  answers  by 
replies,  and  the  cause  referred  for  the  purpose  of  taking 
testimony. 

Before  any  testimony  was  taken  a  stipulation  was  en- 
tered into  between  the  plaintiffs  and  the  defendants  Hos- 
kins  &  Harkins  whereby  it  was  agreed  that  the  question 
in  dispute,  as  to  the  amount,  character  and  classification 
of  the  work  performed,  should  be  submitted  to  an  arbi- 
trator, who  should  by  measurement  on  the  ground  ascer- 
tain and  estimate  the  cost  of  the  work  done  by  the  plain- 
tiffs at  a  certain  price  agreed  upon  by  the  parties ;  that 
the  amount  so  found  by  the  arbitrator  should  be  a  final 
and  conclusive  determination  of  the  amount  due  from  the 
defendants  to  plaintiffs,  for  which  they  should  have  a  lien 
upon  the  ditch  and  water  right ;  and  that  such  lien  should 
be  foreclosed  and  the  property  sold  to  satisfy  the  same. 
The  report  of  the  arbitrator  was  unsatisfactory  to  the  plain- 
tiffs, and  upon  their  motion  it  was  amended  by  the  court 
and  a  decree  rendered  in  their  favor,  adjudging  that  they 
had  a  valid  lien  on  the  ditch  and  water  right  of  the  water 
and  land  company  for  the  amount  appearing  to  be  due 
them  from  the  report  as  so  amended,  and  foreclosing  the 
same.  From  this  decree  the  water  and  land  company  ap- 
peals, on  the  ground  that  it  was  not  a  party  to  the  stipula- 
tion and  agreement  for  arbitration  or  bound  by  the  report 
of  the  arbitrator,  and  that  such  report  formed  no  basis  for 
a  decree  for  the  sale  of  its  property. 

The  decree  against  the  water  and  land  company  was, 
in  our  opinion,  erroneous.  It  is  admittedly  the  owner  of 
the  property  ordered  to  be  sold  to  satisfy  the  plaintiffs' 
claim.    It  had  by  its  answer  put  in  issue  the  amount  and 

47  Ob. 20 


306  QuACKENBusH  V.  Artbsian  Land  Co.       [47  Or. 

character  of  the  work  done  by  the  plaintiffs,  the  value 
thereof,  and  the  validity  of  plaintiffs'  lien.  Upon  these 
questions  it  had  a  right  to  be  heard,  and  was  not  bound 
by  the  stipulation  entered  into  between  the  plaintiffs  and 
the  defendants  Hoskins  &  Harkins.  The  stipulation  on  its 
face  recites  that  it  is  entered  into  between  "the  plaintiffs 
by  themselves  and  J.  W.  McCulloch,  their  attorney,  and 
the  defendants  Hoskins  &  Harkins  by  themselves  and  by 
Soliss  and  Bryan,  their  attorneys."  It  does  not  purport 
to  have  been  made  on  behalf  of  the  water  and  land  com- 
pany, and  it  was  not  bound  thereby,  although  it  was  rep- 
resented in  the  suit  by  the  same  attorneys  who  appeared 
for  its  codefendants  and  signed  the  stipulation  as  such. 

2.  The  statute  makes  every  contractor  and  subcontractor 
having  charge  of  the  construction  of  any  building,  wharf, 
bridge,  ditch,  etc.,  the  agent  of  the  owner  for  the  purpose 
of  binding  the  property  with  a  lien  for  the  reasonable 
value  of  materials  furnished  to  be  used  in  or  labor  per- 
formed upon  such  improvement  at  the  request  of  the 
former :  B.  &  C.  Comp.  §  5640;  Fitch  v.  Howitt,  32  Or.  396 
(52  Pac.  192);  Cooper  Mfg.  Co.  v.  Delahunt,  36  Or.  402  (51 
Pac.  649,  60  Pac.  1);  but  it  does  not  make  him  an  agent 
of  the  owner  with  power  to  determine  the  value  of  the 
materials  furnished  or  labor  performed.  Upon  this  ques- 
tion the  owner  is  entitled  to  be  heard  when  it  is  sought  to 
enforce  a  lien  against  his  property. 

For  these  reasons,  the  judgment  will  be  reversed,  and 
the  cause  remanded  to  the  court  below  for  such  further 
proceedings  as  may  be  proper,  not  inconsistent  with  this 
opinion.  Reversed. 


Jan.  1906.]  Burbn's  Will.  307 

Ariiraed  5  December,  1906,  decided  23  January,  1906. 

BUBEN'S  WILL. 

83  Pac.  580. 

WiLiiS  — Measure  of  Testamentary  Capacity. 

Where  testator  undertitands  what  he  Is  dolDgf  at  the  time  of  the  execution  of 
his  will,  and  has  full  knowledge  of  his  property  and  how  he  wishes  to  dispose  of 
it  among  those  entitled  to  his  bounty,  he  has  sufficient  testamentary  capacity, 
notwithstanding  old  age,  sickness,  debility  of  body  or  extreme  distress. 

From  Marion  :  William  Galloway,  Judge. 

Statement  by  Mr.  Justice  Hxiley. 

This  is  a  will  contest,  instituted  in  the  county  court  of 
Marion  County  by  Max  0.  Buren,  only  son  of  A.  B.  Buren, 
deceased,  to  have  declared  void  the  will  of  his  father,  for 
the  reason,  as  stated  in  the  petition,  that  his  father  at  the 
time  he  signed  the  instrument  in  question  was  not  of  sound 
and  disposing  mind  and  memory,  but  was  in  his  dotage, 
and  suffering  from  disease,  old  age,  and  great  physical  and 
mental  disability  and  infirmity,  and  his  mind  and  memory 
were  so  impaired  as  to  render  him  entirely  incapable  of 
making  a  will  or  of  understanding  the  terms  of  any  will  or 
of  making  any  valid  disposition  of  his  property,  and  that 
he  never  made  or  executed  said  pretended  will,  and  did  not 
intend  that  its  provisions  should  take  effect,  and  did  not 
know  or  understand  the  contents  thereof.  At  the  hearing 
the  will  was  sustained,  but  an  appeal  was  taken  to  the  circuit 
court,  where  a  decree  was  entered  setting  aside  the  will, 
from  which  decree  this  appeal  was  taken  by  Leda  V.  Buren- 
Reeves,  contestant's  only  sister,  who  was  unmarried  at  the 
time  of  the  death  of  their  father.  The  father  of  these  liti- 
gants had  been  a  resident  of  Salem  for  many  years,  and 
died  on  February  24,  1904,  leaving  surviving  him  as  his 
sole  heirs  the  contestant.  Max  0.  Buren,  his  son,  aged  about 
34  years,  and  one  daughter,  Leda,  aged  about  19  years,  who 
resided  with  her  father,  while  her  brother  was  married  and 
had  three  young  sons,  and  resided  in  a  neighboring  resi- 
dence.   At  the  time  of  his  death  the  father  was  between 


308  Buren's  Will.  [47  Or. 

64  and  65  years  of  age,  and  had  been  afflicted  for  many 
years  with  w hat  is  commonly  called  **locomotor  ataxia,'' and 
also  with  defective  hearing.  From  1890  to  1894  he  was  en- 
gaged in  the  furniture  business  in  Salem  with  his  son,  Max, 
under  the  firm  name  of  A.  B.  Buren  &  Son,  but  in  the  latter 
year  he  sold  his  interest  to  his  son  and  a  Mr.  Hamilton,  and 
thereafter  loaned  money  and  looked  after  his  property  in- 
terests, which  were  quite  extensive,  and  at  the  time  of  his 
death  aggregated  about  ^35,000.  During  the  winter  of 
1903-1904  his  physical  troubles  so  progressed  as  to  confine 
him  to  his  home,  where,  during  the  pleasant  weather,  he 
frequently  sat  in  the  front  yard  and  chatted  with  his  friends 
and  neighbors  as  they  passed. 

In  the  month  of  February,  1904,  he  became  confined  to 
his  house,  and  on  the  16th  day  of  that  month  sent  for  an 
attorney  and  gave  him  directions  about  drafting  his  will, 
and  two  days  later  the  will  was  drawn  at  the  residence  of 
the  testator  in  the  presence  of  himself  and  three  witnessesi 
and  by  him  duly  executed.  By  this  will  he  gave  certain 
residence  property  to  his  daughter  and  certain  other  like 
property  to  his  son,  and  certain  other  real  property  to  them 
jointly,  and  made  a  bequest  of  $2,000  to  each  of  his  three 
grandsons,  the  children  of  his  son,  Max.  And  **as  a  matter 
of  kindly  remembrance"  made  two  small  bequests,  one  for 
$250  to  Mrs.  Fannie  Wain,  a  friend  and  former  member  of 
his  household,  and  a  like  amount  to  Carolyn  Holman,the 
infant  daughter  of  Mrs.  Rachel  Holman,  who  was  also  a 
friend  and  at  one  time  a  member  of  his  household ;  this 
latter  bequest  being  made  **on  account  of  the  many  kind- 
nesses bestowed  on  me  and  my  family  by  her  mother.*' 
The  will  further  provided  that  the  bequest  made  to  his 
grandsons  should  not  be  paid  to  them  until  they  had  at- 
tained the  age  of  24  years,  and  he  appointed  their  father 
as  guardian  of  their  funds,  and  directed  that  the  same 
should  be  loaned  to  the  best  advantage  and  upon  security 


Jan.  1906.]  Buren's  Will.  309 

to  be  approved  by  the  probate  opurt  of  Marion  County, 
Oregon,  and  that  neither  the  principal  nor  interest  thereon 
should  be  used,  except  to  pay  taxes  and  other  public  charges 
thereon.  The  residue  of  his  estate  was  willed  to  his  daugh- 
ter, Leda,  and  she  was  appointed  executrix  of  his  last  will 
and  testament,  to  serve  without  bonds.  This  will  was  exe- 
cuted on  the  18th  day  of  February,  1904,  in  the  presence 
of  N.  J.  Judah,  W.  H.  Holmes,  and  Mary  Eliza  Cotter,  the 
trained  nurse  who  was  then  attending  him.  During  his 
last  illness  Mr.  Buren  at  times  suffered  great  physical  pain, 
to  relieve  which  he  was  given  morphine,  and  at  times  to 
allay  his  nervousness  was  also  given  bromide,  which  drugs 
had  a  depressing  effect  on  him  and  caused  more  or  less 
stupor.  Revbrsbd. 

For  appellant  there  was  a  brief  over  the  names  of  W,  H, 
Holmes^  Webster  Holmes  and  John  H.  McNary,  with  an  oral 
argument  by  Mr.  William  Henry  Holmes  and  Mr.  McNary, 

For  respondent  there  was  a  brief  and  an  oral  argument 
by  Mr.  John  A.  Carson  and  Mr.  A.  M.  Cannon. 

Mr.  Justice  Hailey  delivered  the  opinion  of  the  court. 

The  only  question  involved  upon  this  appeal  is  the  tes- 
tamentary capacity  of  the  deceased  at  the  time  of  the  exe- 
cution of  the  will.  It  is  contended  on  the  part  of  the 
contestant  that  by  reason  of  the  morphine  and  other  drugs 
administered  to  his  father  during  his  last  illness,  together 
with  the  progress  of  the  disease  from  which  he  was  suffer- 
ing, he  was  not  of  sound  and  disposing  mind  and  memory, 
and  the  instrument  is  therefore  void.  To  support  this 
contention,  the  contestant  relies  almost  wholly  upon  the 
opinion  testimony  of  experts  versed  in  mental  disorders, 
only  two  of  whom  actually  saw  the  testator  during  his  last 
illness.  One  of  these  called  on  the  evening  of  the  17th  of 
February,  the  day  before  the  will  was  written,  when  the 
testator  was  in  a  stupor  from  the  effects  of  morphine  given 


310  Buren's  Will.  [47  Or. 

him  during  the  day,  an^  did  not  arouse  him  so  as  to  have 
any  conversation  with  him,  while  the  other  was  his  attend- 
ing physician,  who  ordinarily  made  two  calls  a  day,  one 
in  the  morning  and  one  in  the  evening,  and  was  not  present 
at  the  time  of  the  execution  of  the  will.  The  other  expert 
witnesses  based  their  opinions  upon  a  reading  of  the  tes- 
timony of  these  two.  The  appellant  and  proponent  con- 
tends that  her  father  was  of  sound  and  disposing  mind  and 
memory  at  the  time  of  the  execution  of  the  instrument, 
and  relies  upon  the  testimony  of  the  subscribing  witnesses 
and  of  friends  and  acquaintances  who  saw  and  Conversed 
with  her  father,  both  before  and  after  the  execution  of  the 
instrument. 

We  have  carefully  read  and  considered  all  the  testimony 
in  the  record,  and  also  inspected  the  original  will,  which 
was  submitted  for  that  purpose.  The  testimony  of  friends 
and  associates  of  the  deceased  shows  that  he  was  a  careful, 
prudent  and  capable  business  man,  who  kept  close  watch 
over  all  his  affairs,  and  fully  understood  all  his  business 
dealings.  The  evidence  also  discloses  that  for  some  time 
prior  to  the  execution  of  this  instrument  he  had  been  talk- 
ing about  making  a  will,  and  had  toldj  former  members  of 
his  household  what  he  purposed  doing  with  a  part  of  his 
property,  and  after  its  execution  again  told  at  least  two 
persons  besides  his  daughter  what  disposition  he  had 
made  of  parts  of  his  property  by  will,  specifying  the  par- 
ticular property  and  to  whom  it  was  given.  On  February 
16,  1904,  he  sent  for  his  attorney,  Mr.  W.  H.  Holmes,  of 
Salem,  whom  he  had  frequently  consulted  in  legal  mat- 
ters, and  requested  him  to  draw  his  will  and  gave  him 
directions  as  to  the  disposition  he  desired  to  make  of  his 
property,  all  of  which  was  noted  down  by  his  attorney, 
who  returned  the  next  day  to  draft  the  will,  but,  no  wit- 
nesses being  present,  the  matter  was  deferred  until  the 
following  day,  when  N.  J.  Judah,  a  personal  friend  of  the 


Jan.  1906.]  Buren's  Will.  311 

deceased,  was  present  to  act  as  a  witness,  and  also  acted 
as  scrivener  in  .drafting  the  will,  writing  from  dictation 
given  bim  by  Mr.  Holmes,  and  in  doing  so  sat  near  the 
testator,  who  was  bolstered  up  in  bed,  and  who,  as  testified 
to, by  Mr.  Holmes,  "paid  very  close  attention  to  what  was 
going  on  and  interrupted  me  a  time  or  two  in  some  formal 
matters  or  unimportant  matters,  showing  that  he  was  pay- 
ing very  close  attention  to  what  I  said."  After  the  will  was 
written  it  was  carefully  read  to  the  testator  by  Judah  in  the 
presence  of  Mr.  Holmes  and  Miss  Cotter,  the  nurse.  He' 
then  signed  it  and  declared  it  to  be  his  will,  and  requested 
the  persons  present  to  witness  it  as  such,  and  after  they 
had  done  so  he  asked  his  attorney,  as  testified  to  by  the 
witness  Judah,  *4f  in  the  event  of  recovery  from  that  ill- 
ness, if  the  making  and  declaration  of  this  will  would  hin- 
der or  prevent  him  from  making  any  other  disposition  of 
his  property,  if  he  wanted  to  sell  it,  or  anything  else."  His 
daughter,  Leda,  also  testified  that  later  on  the  same  day  he 
asked  her  to  read  the  will,  and  when  she  had  done  so  asked 
her  if  it  was  satisfactory,  and  *Halked  about  it  the  next  day" 
and  "knew  exactly  what  was  in  the  will,"  and  '^mentioned 
each  particular  instance."  Mrs.  Rachel  Holraan,  a  friend 
and  former  member  of  the  family,  testified  that  in  the 
evening  after  the  will  was  made  she  heard  the  old  gentle- 
man and  his  son.  Max,  talking,  and  **heard  Max  say/Has 
Leda  been  any  nearer  and  dearer  to  you  that  you  should 
favor  her.'  The  old  gentleman  was  indignant, and  he  said: 
*Max,  don't  you  think  I  am  in  my  right  mind  ?  Don't  you 
think  I  know  what  I  want  to  do  with  my  property  V  He 
seemed  to  be  angry  because  Mr.  Buren  was  trying  to  im- 
press upon  him  that  he  was  as  dear  to  him  as  Leda."  She 
further  testified  that  on  the  morning  following  the  execu- 
tion of  the  will  she  called  and  conversed  with  Mf.  Buren, 
and  he  mentioned  the  bequest  of  $250  to  her  baby,  Car- 
olyn, and  asked  her  to  remind  the  child  of  the  bequest, 


312  Buren's  Will.  [47  Or. 

and  that  it  came  from  him,  whenever  she  was  old  enough 
to  appreciate  it. 

The  only  testimony  given  by  the  contestant  himself 
regarding  his  father^s  physical  and  mental  condition  is 
the  following : 

"Q.  Did  you  see  your  father  during  his  last  illness  or 
shortly  preceding  his  death  ? 

A.  I  saw  him  during  his  sickness;  yes. 

Q.  State  to  the  court  the  condition  of  his  hearing,  and 
confine  your  testimony  solely  to  that  one  matter. 

A.  My  father's  hearing  was  always  bad,  and  he  was  very 
inattentive,  making  it  harder  for  him  to  hear  a  person 
than  one  who  had  the  same  hearing.  At  a  number  of 
times  I  noticed  that  when  it  came  to  giving  his  medicine 
that  Miss  Cotter  had  to  talk  very  loud  to  him,  and  I  had 
to  talk  loud  to  him,  and  had  to  repeat  it  a  number  of  times. 
It  was  practically  impossible  to  carry  on  an  extended  con- 
versation with  him. 

Q.  What  was  the  reason  of  that  ? 

A.  He  was  dull ;  his  mind  seemed  dull. 

Q.  I  mean  about  his  hearing? 

A.  Well,  the  reason  that  it  was  so  hard  to  carry  on  a 
conversation  with  him  was  because  his  hearing  was  so 
hard,  and  he  did  not  look  directly  at  you,  and  he  had  a 
poor  conception  of  the  reading  of  one's  lips  if  he  did  look 
at  you." 

He  does  not  contradict  the  testimony  of  Mrs.  Holman 
or  attempt  to  detail  the  mental  condition  of  his  father, 
although  he  visited  and  talked  with  him  on  the  day  the 
will  was  signed  and  on  the  preceding  day,  and  saw  him  a 
number  of  times  during  his  last  sickness. 

Personal  friends,  who  had  been  acquainted  with  him 
for  years  and  who  visited  with  him  both  before  and  after 
the  execution  of  the  will,  testified  that  they  found  him 
suffering  physically,  but  that  his  mind  was  clear,  and  he 
talked  rationally  about  business  and  other  matters  and  was 
in  his  normal  mental  condition,  which  was  that  of  a  careful 


July,  1905.]      Oregon  Iron  Co.  v.  Hughes.  313 

and  cautious  man  of  good  business  capacity.  Holmes  and 
Judah,  the  subscribing  witnesses,  both  testified  that  his 
mind  was  perfectly  clear  when  the  will  was  drafted  and 
executed,  and  the  attending  circumstances  as  detailed  by 
them  and  the  nurse,  together  with  the  testimony  of  other 
witnesses  who  saw  him  before  and  after  the  execution  of 
the  will,  fully  establish  the  fact  that  he  understood  what 
he  was  doing  at  the  time  he  executed  the  will,  and  had 
full  knowledge  of  his  property  and  how  he  wished  to  dis- 
pose of  it  among  those  entitled  to  his  bounty,  and  this 
was  *'sufl5cient  testamentary  capacity,  notwithstanding  his 
old  age,  sickness,  debility  of  body  or  extreme  distress," 
within  the  rule  now  firmly  established  in  this  State  and 
recently  reiterated  by  Mr.  Justice  Moore  in  the  case  of 
Ames'  Will,  40  Or.  495-504  (67  Pac.  737),  where  all  the 
decisions  of  this  court  upon  this  subject  are  collated. 

The  decision  of  the  circuit  court  will  therefore  be  re- 
versed, and  this  cause  remanded  for  such  further  proceed- 
ings as  may  be  proper,  not  inconsistent  with  this  opinion. 

Reversed. 


Ai^ued  21  Jane,  decided  17  July,  1006. 
OBEGON  IRON  CO.  v.  HUGHES. 

81  Pac.  672. 

Property  Quality  of  Meteorites.* 

1.  MeteorlteB,  though  not  imbedded  in  the  earth,  are  real  estate,  and  conse- 
qnently  belong  to  the  owner  of  the  land  on  which  they  are  found,  In  the  absenoe 
of  proof  of  severance :  Fergtuon  v.  Ray,  44  Or.  557,  distinguished. 

Meteorite  — Evidence  of  Severance. 

2.  Mere  evidence  of  a  tradition  that  Indians  reverenced  a  meteorite,  washed 
their  fttces  in  the  water  contained  therein,  and  treated  it  as  a  kind  of  magic  or 
medicine  rock  belonging  to  the  medicine  men  of  the  tribe,  and  that  there  were 
fantastic  holes  therein,  thought  to  have  been  made  by  the  Indians,  is  not  sulTl- 
cient  to  Justify  an  inference  that  the  Indians  severed  the  meteorite  from  the 
realty,  and  thereafter  abandoned  It,  so  that  the  next  finder  became  entitled  to  it. 


♦  Note.— See  extensive  classified  notes,  Right  of  Finder  to  Property  Found,  , 
1  Am.  A,  Eng.  Ann.  Cas.  4 ;  and  Rights  and  Liabilities  of  Finder  of  Property,  I 
37  L.  R.  A.  1 16 ;  102  Am.  St.  liep.  632. 

As  to  LArceny  of  Lost  Property  see  88  Am.  St.  Rep.  501-504,  and  87  L.  R.  A.  ^ 
121-120.  Reporter. 


i. 


\ 

314  Oregon  Iron  Co.  v,  Hughes.  [47  Or. 

From  Clackamas:  Thomas  A.  McBride,  Judge. 

Replevin  action  by  the  Oregon  Iron  &  Steel  Co.  against 
Ellis  Hughes,  for  the  possession  and  ownership  of  a  me- 
teorite discovered  by  defendant  on  plaintiff's  land  and 
secretly  removed.    Plaintiff  prevailed.  Affirmed. 

For  appellant  there  was  ah  oral  argument  by  Mr.  Oorden 
E.  Hayesj  Mr,  Charles  D.  Latourette  and  Mr.  D.  Clinton  Lat- 
ourette,  with  a  brief  to  this  effect. 

I.  Whatever  movables  are  found  upon  the  surface  of 
the  earth,  or  in  the  sea,  and  are  unclaimed  by  any  owner, 
are  supposed  to  be  abandoned  by  the  last  proprietor,  and 
as  such  are  returned  into  the  common  stock  and  mass  of 
things,  wherefore  they  belong,  as  in  a  state  of  nature,  to  the 
first  occupant  or  finder:  2  Bl.  Com.  258,  402;  McLaughlin 
V.  Waite,  5  Wend.  410  (21  Am.  Dec.  232);  Eada  v.  Brazil- 
ton,  22  Ark.  501  (79  Am.  Dec.  88);  State  v.  Taylor,  27  N.  J. 
121;  Sideick  y. Duran, 67  Tex.  2Q2;  Amory  v.  Flyny  10  Johns. 
102  (6  Am.  Dec.  316);  Bowen  v.  Sullivan,  62  Ind.  281  (30 
Am.  Rep.  172);  Tancil  v.  Seaton,  28  Grat.  601  (2(5  Am. 
Rep.  380). 

II.  Under  the  Roman  law,  when  treasure  was  found  by 
one  person  on  the  land  of  another,  one  half  thereof  was 
given  to  the  finder  and  the  other  half  to  the  owner  of  the 
land  (Mackenzie,  Roman  Law,  170;  LivermOre  v.  White,  74 
Me.  452,  43  Am.  Rep.  600);  but  under  the  English  and 
American  law  the  finder  of  property  not  claimed  by  any 
owner  is  entitled  to  it  all,  even  against  the  owner  of  the 
land  on  which  it  is  found. 

The  place  in  which  a  lost  article  is  found  does  not  affect 
the  general  rule  that  the  finder  is  entitled  to  it  against 
every  one  but  the  owner:  Durfee  v.  Jones,  11  R.  I.  588  (23 
Am.  Rep.  528);  Bowen  v.  Sullivan,  62  Ind.  281  (30  Am. 
Rep.  172);  Hamaker  v.  Blanchard,  90  Pa.  377  (35  Am.  Rep. 
664);  Totum  v.  Shai-pless,  6  Phila.  18. 


July,  1905.]      Oregon  Iron  Co.  v.  Hughes.  315 

III.  The  authorities  regard  lost  or  abandoned  articles  as 
things  fallen  back  into  the  common  stock,  and  the  finder's 
title  is  made  to  rest  purely  upon  the  ground  of  prior  occu- 
pancy. Such  articles  are  the  property  of  him  who  first 
reduces  them  to  possession :  2  Bl.  Com.  402;  Sovern  v. 
Yoran,  16  Or.  269  (8  Am.  St.  Rep.  293,  20  Pac.  100);  Daniel- 
son  V.  Roberts,  44  Or.  108  (65  L.  R.  A.  526, 102  Am.  St.  Rep. 
627,  74  Pac.  913). 

As  to  articles  which  have  never  been  owned,  which  have 
not  been  out  of  the  common  stock  and  mass  of  things,  the 
same  rule  holds  in  the  main,  and  he  who  first  captures  the 
chattel  may  hold  it  against  the  world:  Tabor  v.  Jenny,  1 
Sprague,  315;  Young  v.  Hickens,  1  Dav.  &  M.  592;  Amory 
V.  Flyn,  10  Johns.  102  (6  Am.  Dec.  316). 

Before  this  aerolite  Veached  the  earth  it  unquestionably 
belonged  to  the  common  mass  and  stoc^  of  things,  and 
therefore  was  not  the  property  of  any  one.  When  it  reached 
the  earth  it  was  appropriated  by  the  Indians,  who  claimed 
it  and  erected  it  on  the  mound,  and  used  it  until  their 
tribal  relations  ceased.  The  proper  principle  to  apply  in 
this  case  is  that  of  original  acquisition.  Unlike  the  Iowa 
meteor  case,  it  did  not  fall  upon  and  bury  itself  in  the  soil, 
and  thereby  partake  of  the  nature  of  its  environment. 
And,  unlike  the  meteor  in  that  case,  it  did  not  require 
excavation  by  physical  effort  to  remove  it,  which  would 
of  itself  constitute  a  trespass  upon  the  land  ;  but  it  stood 
there  erect  like  a  sentinel,  like  a  Tomanowos.  No  one  saw 
it  fall,  nor  is  it  shown  wherp  it  struck.  It  may  have  fallen 
an  hundred  years  ago  or  a  hundred  miles  away — no  one 
can  tell.  It  assuredly,  however,  did  not  fall  at  the  particu- 
lar point  where  it  was  discovered  by  the  appellant,  as  the 
necessary  impact  would  have  driven  it  into  the  face  of  the 
earth  far  beyond  the  view  of  man.  The  distinguishing 
feature  between  the  case  at  bar  and  the  quartz  case  of 
Ferguson  v.  Ray,  44  Or.  557  (1  Am.  &  Eng.  Ann.  Cas.  1, 


316  Oregon  Iron  Co.  v,  Hughes.  [47  Or. 

102  Am.  St.  Rep.  648, 1  L.  R.  A.  (N.  S.)  447,  77  Pac.  600), 
is  that  this  article  was  found  on  the  surface  of  the  earth, 
while  the  quartz  was  imbedded  in  the  soil. 

It  may  have  been  found  by  the  Clackamas  Indians,  per- 
haps they  saw  it  fall,  but,  however  that  may  be,  the  record 
does  show  that  they  appropriated  it  to  their  own  uses,  they 
gouged  out  its  interior  into  those  fantastic  potholes,  one 
of  which  is  large  enough  to  hold  a  child  —  no  other  reason- 
able theory  of  their  existence  has  been  advanced.  The 
Indians  raised  it  to  a  standing  position  upon  a  prominent 
knoll,  they  maintained  and  used  it  in  their  warfare,  and 
when  it  was  abandoned,  it  became  in  law  the  same  as  an 
arrow,  or  spear  head,  or  tomahawk,  an  Indian  relic,  left 
for  him  who  should  come  after  them  who  could  see  value 
or  interest  enough  in  the  thing  to  pick  it  up  and  carry  it 
away. 

For  respondent  there  was  a  brief  over  the  name  of 
Williams,  Wood  iSc  Linthicuja,  with  an  oral  argument  by 
Mr,  Stewart  Brian  Linthicum  and  Mr.  J.  Couch  Flanders. 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

The  defendant  in  November,  1902,  discovered  upon  the 
land  of  the  plaintiff  an  irregularly  shaped  mass  of  iron, 
with  infusion  of  nickel  and  a  trace  of  cobalt,  weighing 
several  tons,  supposed  to  be  of  meteoric  origin,  and  shortly 
afterwards,  without  the  knowledge  or  consent  of  the  plain- 
tiff, removed  the  same  to  his  own  premises.  The  plaintiff, 
upon  ascertaining  the  fact,  demanded  the  property,  and, 
being  refused,  brought  this  action  to  recover  it,*and,  hav- 
ing obtained  judgment,  the  defendant  appeals. 

1.  The  trial  court  instructed  the  jury  upon  the  theory 
or  assumption  that  the  mass,  or,  as  it  is  generally  denom- 
inated in  the  proceeding,  the  meteorite,  when  removed, 
was  real  property,  or  a  part  of  the  soil,  and  belonged  to 
the  owner  of  the  soil,  and  therefore  left  to  the  jury  for 


July,  1905.]      Oregon  Iron  Go.  v.  Hughes.  317 

their  determination  the  sole  question  whether  it-was  found 
upon  and  removed  from  the  land  of  the  plaintiff.  This  the 
jury  found  in  plaintiff's  favor,  which  settled  the  contro- 
versy in  that  court.  The  defendant  requested  instructions 
with  a  view  to  having  submitted  to  the  jury  the  theory  that 
the  property  was  very  early  appropriated  by  the  Indians 
and  utilized  and  worshiped  by  them  as  a  sacred  object, 
and,  having  been  so  appropriated,  it  became  and  was  per- 
sonalty in  their  hands ;  that  they  subsequently  abandoned 
it;  and  that  the  defendant,  being  the  finder,  became  the 
owner,  and  is  entitled  to  it,  as  against  the  owner  of  the 
realty  upon  which  it  was  found.  The  theory  carries  with 
it  also  the  idea  that  the  mass  is  in  reality  a  meteorite, 
brought  to  the  earth  from  some  planet  through  natural 
causes.  In  physical  appearance  it  is  in  the  shape  of  a  huge 
mushroom  or  an  inverted  bell,  in  dimensions  7  feet  by  10 
across  the  top,  and  4^  feet  thick,  and  when  found  was  rest- 
ing with  its  smaller  end  upon  the  surface  of  the  earth,  not 
imbedded  in  it,  but  within  a  saucer-like  depression,  with 
hazel  bushes  growing  up  about  it.  Its  position  was  on  the 
top  of  a  knoll  or  eminence,  with  an  incline  in  either  direc- 
tion, except  towards  the  north.  In  its  top,  as  it  rested  in 
place,  are  numerous  cavities,  or  **potholes,"  as  they  are 
termed,  of  larger  or  smaller  dimensions,  some  of  them 
being  14  inches  in  depth  ;  the  whole  mass  being  corroded, 
rusty  and  moss-grown.  Granite  bowlders  were  also  found 
in  proximity  to  it.  Before  alluding  to  the  evidence  upon 
which  defendant's  theory  is  based,  we  may  state  the  law 
relative  to  the  nature  of  a  meteorite  or  aerolite — whether 
realty,  being  a  part  of  the  soil  upon  which  it  is  discovered, 
or  personalty,  belonging  to  the  finder. 

The  question  has  been  resolved  by  a  case  from  Iowa 
(Ooodardw,  Winchell,  86 Iowa,  71,  52  N.  W.  1124, 17  L.  R.  A. 
788*,  41  Am.  St.  Rep.  481)  favorably  to  the  view  that  it  is 

♦Note.—  The  briefs  of  counsel  are  printed  with  this  report.—  Rspobter. 


318  Orbqon  Iron  Co.  v.  Hughes.  [47  Or. 

realty.  As  disclosed  by  the  record,  the  facts  of  that  case 
were  that  a  person  saw  an  aerolite  fall  upon  the  land  of 
another,  which  buried  itself  in  the  ground  to  a  depth  of 
three  feet,  becoming  imbedded  therein ;  that  on  the  day 
following  he  dug  it  up  and  removed  it  to  his  own  premises, 
and  claimed  the  ownership ;  but  it  was  decided  otherwise, 
that  is,  that  it  belonged  to  the  owner  of  the  soil.  In  de- 
termining the  question,  the  court,  speaking  through  Mr. 
Justice  Granger,  said :  "The  subject  of  the  dispute  is  an 
aerolite.  *  *  It  came  to  its  position  in  the  earth  through 
natural  causes.  It  was  one  of  nature^s  deposits,  with  noth- 
ing in  its  material  composition  to  make  it  foreign  or  un- 
natural to  the  soil.  It  was  not  a  movable  thing  *on  the 
earth.*  It  was  in  the  earth,  and  in  a  very  significant  sense 
immovable ;  that  is,  it  was  only  movable  as  parts  of  the 
earth  are  made  movable  by  the  hand  of  man.  Except  for 
the  peculiar  manner  in  which  it  came,  its  relation  to  the 
soil  would  be  beyond  dispute.  It  was  in  its  substance,  as 
we  understand,  a  stone.  It  was  not  of  a  character  to  be 
thought  of  as  'unclaimed  by  any  owner,'  and  because  un- 
claimed, ^supposed  to  be  abandoned  by  the  last  proprietor,* 
as  should  be  the  case  under  the  rule  invoked  by  appellant. 
In  fact,  it  has  none  of  the  characteristics  of  the  property 
contemplated  by  such  a  rule.**  And  it  was  held  that,  hav- 
ing none  of  the  characteristics  of  personalty, it  became, by 
falling  on  the  earth  through  the  course  of  nature,  a  part 
of  the  soil,  and  hence  that  the  ownership  was  determined 
by  the  ownership  of  the  soil. 

There  is  a  distinction  sought  to  be  made  here  by  reason 
of  the  fact  that  this  meteoric  mass  was  discovered  dis- 
tinctly on  the  surface  of  the  earth,  not  beneath  it,  and 
therefore  that  it  could  not  at  all  be  considered  a  part  of  the 
soil.  The  fact  that  granite  bowlders  were  lying  in  prox- 
imity to  where  it  was  found  would  indicate  that  it  might 
have  been  deposited  there  through  the  instrumentality  of 


July,  1905.]      Oregon  Iron  Co.  v,  Hughes.  319 

an  ice  floe,  although  apparently  of  meteoric  origin,  and 
the  cavities  in  the  crown  may  have  been  the  result  of 
erosion  by  the  enginery  of  the  water  as  well  as  that  of 
oxidation  through  fervent  heat;  and  this  would  satisfac- 
torily account  for  its  position  on  the  surface  of  the  earth, 
and  not  beneath  it.  Again,  if,  as  argued,  its  natural  pro- 
pensity was  to  bury  itself  in  the  soil  by  reason  of  the  im- 
pact resulting  from  the  great  velocity  of  its  descent  from 
the  heavens,  it  may  have  been  thrown  out  by  force  of  an 
eruption, or  uncovered  by  the  decomposition  or  erosion  of 
the  natural  deposits  about  it;  but,  however  that  may  be, 
much  of  it  being  mere  matter  of  conjecture  rather  than  of 
scientific  discovery  and  demonstration,  there  is  one  thing 
sure  about  the  inquiry,  and  that  is  that  the  mass  is  one 
of  nature's  deposits,  and  presumptively  it  was  primarily  a 
part  of  the  soil  or  the  realty  upon  which  it  was  discovered. 
The  plaintiff's  case  was  made,  prima  facie,  therefore,  when 
it  was  shown  that  the  mass,  whether  of  meteoric  or  glacial 
origin,  was  resting  upon  its  land,  for,  without  other  proofs 
showing  a  severance  and  appropriation,  it  existed  in  a 
state  of  nature,  and  partook  of  the  realty,  as  iron  ore  would 
partake  of  the  realty,  whether  found  beneath  or  upon  the 
surface  of  the  earth. 

2.  Upon  the  other  hand,  in  order  for  the  defendant  to 
succeed  upon  his  theory,  he  was  required  to  show  by  com- 
petent proofs  a  severance  of  the  mass  from  the  realty  by 
the  Indians,  its  appropriation  by  them,  their  subsequent 
abandonment  of  it  by  leaving  it  upon  the  surface  of  the 
earth,  and  defendant's  discovery  of  it.  It  would  be  suffi- 
cient, however,  for  the  submission  of  his  cause  to  the  jury, 
if  there  was  evidence  adduced  from  which  they  might 
reasonably  infer  that  all  these  essentials  to  his  defense 
existed  in  fact.  If  so,  the  requested  instructions  should 
have,  been  given  ;  otherwise  not. 


320  Oregon  Iron  Co.  t;.  Hughes.  [47  Or. 

In  substantiation  of  this  defense,  Susap,  a  Klickitat  In- 
dian, 70  years  of  age,  and  about  the  last  of  his  tribe,  was 
called,  who  testified  that  when  he  was  a  young  boy  he  used 
to  go  hunting  with  Wachino,  a  Clackamas  chief;  that  he 
often  saw  the  meteorite ;  and  that  there  were  lots  of  trees 
around  it  then.  The  stumps,  as  the  evidence  shows,  are 
there  at  the  present  time,  measuring  from  three  to  seven 
feet  over,  and  some  of  them  are  very  near  to  where  it  lay. 
Continuing,  he  says  the  old  chief  told  him  and  the  other 
Indians  that  the  object  in  question  was  iron  ;  that  it  had 
a  hole  in  it;  that  when  it  rained  the  water  fell  in  there, 
and  that  the  Indians  went  there  and  washed  their  faces  in 
the  water,  and  put  their  bows  and  arrows  in  it  that  they 
used  in  time  of  war ;  that  the  medicine  men  said  it  came 
from  the  moon ;  and  that  the  Indians  called  it  "Tomano- 
wos."  Sol  Clark,  47  years  of  age,  whose  mother  was  of  the 
Wasco  tribe  of  Indians,  was  also  called,  who  testified  that 
his  mother  told  him  that  there  was  a  place  up  there  where 
the  Indians  used  to  go  to  this  Tomanowos  ;  that  they  used 
to  send  their  young  people  out  there  —  generally  made 
them  go  on  dark  nights — and  that  the  Tomanowos  was 
a  kind  of  bowl  or  rock  that  had  some  holes  in  it;  and  on 
cross-examination,  that  the  Clackamas  Indians  used  the 
rock ;  that  it  was  a  kind  of  magic  or  medicine  rock,  and 
belonged  to  the  medicine  men  of  the  tribe,  but  that  wit- 
ness claimed  no  interest  in  it.  This  constitutes,  in  sub- 
stance^ all  the  testimony  bearing  upon  the  subject. 

Now,  it  is  argued  with  much  zeal  that  it  is  inferable 
from  this  testimony  that  the  meteorite  is  an  Indian  relic ; 
that  it  was  an  object  of  worship  —  a  "Tomanowos,"  what- 
ever that  term  implies;  that  the  Indians  must  have  at 
some  time  dug  it  from  beneath  the  earth,  where  it  natu- 
rally would  have  buried  itself  by  impact  from  its  fall ;  that 
they  must  have  removed  and  erected  it  to  a  standing  posi- 
tion at  the  place  where  found,  and  carved  out  the  interior 


July,  1905.]      Oregon  Irok  Co.  v.  Hughes.  321 

into'Hhose  fantastic  potholes'^;  and  that  they  maintained 
it  there,  and  venerated  and  used  it  in  their  warfare,  and 
thereby  they  severed  it  from  the  soil  and  appropriated  it 
to  their  own  use,  rendering  it  personal  property  in  their 
hands;  that  presumably  they  forsook  and  discarded  it; 
and  that  it  became  abandoned  property,  and  as  such  the 
property  of  the  finder.  But  what  is  there  to  show  that 
the  Indians  dug  it  from  the  earth  and  erected  it  in  place, 
except  its  posture,  or  that  they  carved  out  the  hc»les  in  its 
crown,  except  that  they  are  there?  No  witness  said  that 
they  did  this,  and  what  has  been  related  concerning  their 
use  of  the  object  is  traditional.  Such  evidence  is  very 
meager  from  which  to  infer  the  substantial  facts  involved 
for  the  predication  of  the  defense  relied  upon.  Nature  does 
many  fantastic  things,  and  presumably  these  are  the  re- 
sult of  natural  causes,  and  the  cavities  contained  therein 
are  attributable  to  the  same  agency.  As  against  this  pre- 
sumption there  could  be  no  rational  inference  that  the 
Indians  dug  it  from  beneath  the  surface  of  the  earth  and 
removed  and  erected  it  in  the  position  in  which  it  was 
found  in  the  dense  forests,  where  it  must  have  lain  for 
some  time,  considering  its  great  weight.  Nor  that  they  hol- 
lowed out  the  potholes  in  its  crown,  considering  the  almost 
impenetrability  of  the  substance,  and  the  primitive  tools 
and  implements  with  which  they  had  to  do  their  work. 
So  that,  conceding  that  it  was  an  object  susceptible  of 
Indian  worship,  the  fact  does  not  afford  reasonable  infer- 
ence that  it  was  severed  from  the  soil  and  appropriated 
by  them.  They  may  have  worshiped  and  utilized  it,  dip- 
ping their  bows  and  arrows  and  laving  their  faces  in  the 
water  accumulating  in  these  bowls  ;  but  all  this  they  could 
well  have  done  without  an  appropriation,  as  tradition  tells 
us  they  worshiped  Mt.  Hood  and  other  immovable  objects 
as  they  existed  in  a  state  of  nature,  and  there  could  have 

i7  Ok.  —  21 


322  Oliver  v.  Wright.  [47  Or. 

been  no  severance  or  appropriation  by  such  use.  So  we 
conclude  in  this  case  that  there  was  not  sufficient  evidence 
even  to  go  to  the  jury,  from  which  they  would  be  permitted 
to  infer  that  this  was  once  Indian  property,  which  they 
later  abandoned,  or  that  it  is  an  Indian  relic,  and  hence 
that  the  finder  is  not  entitled  to  the  ownership. 

Nor  is  this  case  ruled  by  Ferguson  v.  Ray,  44  Or.  557 
(77  Pac.  600,  1  L.  R.  A.  (N.  S.)  477,  1  Am.  &  Eng.  Ann. 
Gas.  1,  102  Am.  St.  Rep.  648),  for  in  that  case  there  was 
unmistakable  evidence,  not  mere  conjecture,  that  the 
quartz,  the  subject  of  the  action,  had  been  removed  from 
its  natural  deposit  by  the  hand  of  some  one  and  reduced 
to  possession  by  severance  from  the  realty,  and  was  again 
deposited  where  found ;  but  here  there  is  no  evidence, 
pertinent,  from  which  it  may  be  deduced  that  there  had 
been  a  severance  and  appropriation  by  the  Indians. 

We  have  proceeded  heretipon  the  hypothesis  that  Indian 
ownership  and  abandonment  was  sufficient  upon  which  to 
predicate  title  in  the  finder  of  abandoned  property,  but  we 
are  not  to  be  understood  as  deciding  the  question  as  mat- 
ter of  law,  as  applicable  to  Indian  relics  and  the  like. 

Seeing  there  is  no  error  in  the  record,  the  judgment  of 
the  circuit  court  will  be  affirmed.  Affirmed. 


Decided  4  December,  1906. 
OLIVER  V.  WBiaHT. 

83  Pac.  870. 

Husband  and  Wife— Tknancy  by  Entibbty. 

1;  A  conveyance  of  real  property  to  a  husband  and  wife  creates  a  tenancy  by 
the  entirety,  and  upon  the  death  of  either  spouse  the  survivor  takes  the  whole 
estate. 

"Property"  Under  Attachment  Statute. 

2.  Is  the  inchoate  light  of  survivorship  of  a  tenant  by  the  entirety  such  **  propu 
erty "  as  can  be  levied  upon  and  sold  under  Section  296,  B.  A  C.  Comp.7 

Lien  of  Attachment  — Merger  in  Judgment. 

3.  Where  a  Judgment  quasi  in  rem  Is  rendered  against  attached  property, 
directing  it  to  be  sold  to  satisfy  the  debt  of  the  attaching  creditor,  the  right  which 


Dec.  1905.]  Oliver  v.  Wright.  323 

the  latter  has  secured  by  the  seizure  under  the  writ  of  attachment  becomes 
merged  In  the  Hen  of  the  Judgment. 

Nature  and  Extent  of  Judgment  Lien. 

4.  A.  Judgment  for  plaintiff  In  an  attachment  action  becomes,  when  docketed, 
a  Hen  upon  all  the  real  property  of  the  Judgment  debtor,  but  does  not  establish 
any  specific  interest  in  his  land. 

Effect  of  Conveyances  of  Land  Subject  to  Judgment— Order  of 
Sale  Under  Execution. 

5.  Where  all  the  land  subject  to  a  general  Judgment  lien  is  conveyed  by  the 
Judgment  debtor  in  separate  tracts,  and  to  diflbrent  persons,  the  Judgment  cred- 
itor, if  he  is  obliged  to  resort  to  an  execution,  must  satisfy  his  Judgment  by  a  sale 
of  the  tracts  conveyed  in  the  inverse  order  of  their  alienation :  Dickson  v.  Bctck,  32 
Or.  217,  distinguished. 

From  Union  :   Samuel  White,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  a  suit  by  Turner  Oliver  to  enjoin  the  sale  of  cer- 
tain real  property  on  execution.  The  facts  are  that  the 
defendant  Joseph  Wright,  as  plaintiff,  commenced  an 
action  April  4,  1892,  in  the  circuit  court  for  Union  County 
against  Mary  A.  Boothe  and  Mary  C.  Walling  as  defend- 
ants, and,  having  sued  out  an  attachment,  he  caused  to  be 
seized  all  the  interest  of  either  of  such  defendants  in  or  to 
block  21  in  the  Town  of  Union,  and  42  days  thereafter  he 
secured  a  judgment  against  them  for  the  sum  of  $247,  with 
interest  at  10  per  cent  per  annum,  $40  attorney's  fees,  and 
the  costs  and  disbursements,  and  an  order  was  made  direct- 
ing that  the  real  property  so  attached  be  sold  to  satisfy  the 
judgment,  a  proper  docket  entry  thereof  having  been  made 
on  the  day  the  judgment  was  given.  At  that  time  Mary  A. 
Boothe  and  her  husband,  Luke  J.  Boothe,  were  the  owners 
in  fee  of  an  undivided  seven  eighths  of  such  block  21,  and 
also  of  all  the  following  described  premises :  Commencing 
at  a  point  60  feet  south  pf  th^  southwest  corner  of  block 
23  in  the  Town  of  Union,  thence  south  200  feet,  thence 
east  210  feet,  thence  north  200  feet,  and  thence  west  210 
feet  to  the  place  of  beginning,  the  latter  tract  being  known 
as  the  Nodine  Block.  The  mnrital  relation  existing  be- 
tween Mr.  and  Mrs.  Boothe  continued  until  November  4, 


324  Oliver  v,  Wright.  [47  Or. 

1892,  when  he  died. in  that  county,  leaving  her  surviving. 
Mrs.  Boothe,  in  consideration  of  $1,800,  executed  to  the 
plaintiff,  Turner  Oliver,  August  12, 1893,  a  warranty  deed 
for  the  undivided  seven  eighths  interest  in  block  21  in  that 
town  ;  and,  the  deed  having  been  duly  recorded  on  that 
day,  he  has  ever  since  been  in  possession  of  the  premises, 
claiming  to  be  the  owner  thereof  in  fee.  Mrs.  Boothe,  on 
November  20, 1894,  for  the  expressed  consideration  of  $1, 
executed  a  bargain  and  sale  deed  of  an  undivided  one  half 
interest  in  the  Nodine  Block  to  R.  Eakin,  who  conveyed 
to  others  such  interest,  which  is  now  held  by  the  defend- 
ants H.  F.  Raymond  and  Aggie  Paddock,  and  is  of  the 
reasonable  value  of  $1,000.  Mrs.  Boothe  thereafter  died 
intestate,  leaving  certain  named  dofendants  as  her  heirs. 
Wright  caused  to  be  issued  June  15, 1897,  a  special  exe- 
cution, directing  the  sale  of  the  real  property  so  attached, 
but,  no  levy  having  been  made,  the  writ  was  returned 
wholly  unsatisfied.  A  general  execution  was  issued  on  this 
judgment  May  8,  1899,  which  was  returned  without  at- 
tempting to  make  any  levy  thereunder.  Another  general 
execution  was  issued  March  28,  1900,  pursuant  to  which 
certain  real  property  of  Mary  C.  Walling  that  had  not  been 
attached  was  sold,  and  the  sum  of  $200  was  credited  on 
the  judgment.  Wright  also  procured  another  special  exe- 
cution June  23,  1904,  directing  the  sale  of  the  real  prop- 
erty so  attached  to  satisfy  the  remainder  due  on  the  judg- 
ment, obeying  the  command  of  which  the  defendant,  C.  C. 
Pennington,  as  sheriff,  levied  upon  plaintiff^s  interest  in 
such  block  21,  and  advertised  the  premises  for  sale,  where- 
upon this  suit  was  instituted,  the  complaint  setting  out  the 
facts,  the  substance  of  which  is  hereinbefore  stated,  and 
averring  that,  in  consequence  of  the  issuance  of  a  general 
execution  and  of  the  sale  of  real  property  thereunder  that 
had  not  been  attached,  Wright  abandoned  any  lien  that 
he  may  have  secured  by  seizure  of  such  interest  in  block 


Dec.  1905.]  Olivbr  v.  Wright.^  325 

21  under  the  writ  of  attachment.  The  prayer  for  relief  is 
that  the  property  owned  by  Mrs.  Boothe,  which  became 
subject  to  the  lieu  of  Wright's  judgment,  may  be  sold  on 
execution  in  the  inverse  order  of  its  alienation,  so  that  the 
undivided  one  half  of  the  Nodine  Block,  inherited  by  her 
heirs,  be  first  disposed  of,  and,  if  the  sum  realized  there- 
from be  insufficient  to  satisfy  the  judgment,  that  resort  be 
had  to  the  remaining  half  of  that  block,  owned  by  the  de- 
fendants H.  F.  Raymond  and  Addie  Paddock,  a  sale  of 
which  will  satisfy  any  remainder  that  may  be  due.  The 
defendants  Wright  and  Pennington  filed  their  respective 
answers,  and,  the  averments  of  new  matter  therein  having 
been  put  in  issue  by  replies,  a  trial  was  had,  resulting  in  a 
decre  dismissing  the  suit,  and  plaintiff  appeals. 

Reversed. 

For  appellant  there  was  a  brief  over  the  name  of  Ram- 
sey &  Oliver,  with  an  oral  argument  by  Mr.  W.  M.  Ramsey. 

For  respondents  there  was  a  brief  over  t|;ie  name  of 
Crawford  &  Crawford^  with  an  oral  argument  by  Mr, 
Thomas  Harrison  Crawford, 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

The  transcript  shows  that  Wm.  Wilson  and  others  Sep- 
tember 22,  1885,  by  a  warranty  deed,  conveyed  to  "Luke 
J.  Boothe  and  Mary  Ann  Boothe"  an  undivided  seven 
eighths  interest  in  and  to  block  21  in  the  Town  of  Union, 
and  that  Bertha  Nodine  and  her  husband,  April  5  1887, 
by  a  similar  deed,  conveyed  to  **L.  J.  Boothe,  Sr.,  and 
Mary  A.  Boothe"  the  Nodine  Block,  particularly  describ- 
ing it.  These  grantees  are  not  named  in  either  deed  as 
husband  and  wife,  but  it  was  stipulated  at  the  trial  in  the 
lower  court  that  at  the  times  such  conveyances  were  re- 
spectively made  they  sustained  that  relation,  which  con- 
tinued until  November  4,  1892.  when  the  husband  died, 
leaving  Mrs.  Boothe  as  his  survivor. 


326  •Oliver  v,  Wright.  [47  Or. 

1.  Whatever  the  rule  may  be  in  other  jurisdictions  in 
respect  to  a  deed  executed  to  a  husband  and  wife  of  real 
property,  it  is  settled  in  this  State  that  such  a  conveyance 
creates  a  tenancy  by  the  entirety,  and  that  upon  the  death 
of  either  spouse  the  survivor  takes  the  whole  estate :  Nob- 
Hit  V.  Beehe,  23  Or.  4  (35  Pac.  248);  Howell  v.  FoUom,  38 
Or.  184(63  Pac.  116,  84  Am.  St. Rep.  785);  Hayes  y.Harton, 
46  Or.  597  (81  Pac.  386).  Therefore,  on  November  4, 1892, 
when  the  marital  relation  that  had  theretofore  existed  be- 
tween Luke  J.  Boothe  and  Mary  A.  Boothe  was  severed  by 
his  death,  she,  eo  instante,  as  his  survivor,  became  the 
owner  of,  and  was  vested  with,  an  estate  in  fee  simple  of  the 
real  property  which  was  held  by  them  as  tenants  by  the 
entirety  at  his  death. 

2.  Whether  or  not  the  inchoate  right  of  survivorship 
of  either  spouse,  as  tenant  by  entirety  of  real  estate,  con- 
stitutes "property,"  within  the  meaning  of  that  word  as 
used  in  the  statute  (B.  &  C.  Comp.  §  296),  so  as  to  render 
such  possible  interest,  before  it  accrues  by  the  death  of  a 
husband  or  of  a  wife,  subject  to  seizure  by  writ  of  attach- 
ment, or  what  the  effect  may  be  of  issuing  a  general  ex- 
ecution upon  a  judgment  directing  the  sale  of  attached 
property,  we  do  not  deem  necessary  to  a  decision  herein. 

3.  The  property  of  a  defendant  in  an  action  is  attach'ed 
as  security  for  the  satisfaction  of  any  judgment  that  may 
be  recovered.  The  purpose  of  such  ancillary  proceeding 
is  to  prevent  the  owner  from  voluntarily  disposing  of  or  - 
incumbering  his  property,  and  to  preclude  other  creditors 
from  securing  prior  liens  thereon,  and  when  a  judgment 
quasi  in  rem  is  rendered  against  such  property,  directing 
it  to  be  sold  to  satisfy  the  debt  of  the  attaching  creditor, 
the  latter's  qualified  right,  secured  by  the  seizure  under 
the  writ  of  attachment,  becomes  merged  into  the  lien  of 
the  judgment. 


Dec.  1905  ]  Oliver  v.  Wriqht.  327 

4.  In  the  case  at  bar  no  intervening  rights  of  third  per- 
sons have  accrued  subsequent  to  the  attachment,  and  prior 
to  the  entry  of  Wright's  judgment,  that  can  effect  any  of 
the  real  property,  the  title  to  which  became  vested  in  Mrs. 
Boothe,  so  as  to  demand  a  levy  of  an  execution  upon  the 
specific  premises  so  originally  seized,  in  order  to  protect 
his  rights.  The  docketing  of  this  judgment  became  a  lien 
upon  all  the  real  property,  the  title  to  which  vested  in  Mrs. 
Boothe  in  severalty  upon  the  death  of  her  husband,  but 
such  judgment  did  not  establish  any  specific  interest  in 
her  land. 

5.  The  particular  source  from  which  a  creditor  derives 
the  money  necessary  to  satisfy  his  judgment  would  ordi- 
narily appear  to  be  a  matter  of  indifference  so  far  as  he  is 
concerned,  and,  as  a  debtor  in  making  payment  to  a  per- 
son having  two  or  more  demands  against  him  may  compel 
the  crediting  of  the  money  tendered  on  account  of  a  desig- 
nated debt,  so,  too,  a  judgment  debtor  who  conveys  in 
separate  tracts  to  different  persons  all  his  real  property 
that  is  subject  to  a  general  judgment  lien  thereby  forces 
his  creditor,  if  he  is  obliged  to  resort  to  an  execution,  to 
satisfy  his  judgment  by  a  sale  of  the  real  property  so  con- 
veyed in  an  inverse  order  of  its  alienation :  Knott  v.  Shaw, 
5  Or.  482.  This  rule  does  not  contravene  the  doctrine  an- 
nounced in  Dickson  v.  Back,  32  Or.  217  (51  Pac.  727),  where 
it  was  held  that  a  deed,  absolute  in  form,  purporting  to  con- 
vey real  property,  but  intended  by  the  parties  as  security 
for  the  payment  of  a  debt,  was  a  mortgage,  and  did  not 
transfer  the  title  to  the  premises,  but  only  created  a  lien 
thereon,  in  enforcing  which  it  was  decreed  that  the  assets 
should  be  marshaled,  and  that  the  land  should  be  sold 
upon  execution  issued  on  a  judgment  that  was  a  prior 
lien,  but  not  in  an  inverse  order  of  incumbrances.  The 
decision  in  that  case  proceeds  upon  the  theory  that,  as 
Dickson's  mortgage  was  subordinate  to  the  lien  of  the 


328  Baker  County  v.  Huntington.  [47  Or. 

judgment,  the  equities,  each  being  a  lien,  were  equal,  and 
hence  the  first  in  time  should  prevail,  and  that,  if  the 
plaintiff  in  that  suit  desired  to  be  subrogated  to  the  rights 
of  the  judgment  creditor,  he  should  pay  off  the  prior  lien. 
In  the  case  at  bar  it  will  be  remembered  that  plaintiff's 
interest  and  title  to  the  real  property  in  question  is  evi- 
denced by  Mrs.  Boothe's  deed,  and  not  by  any  lien  upon 
or  incumbrance  of  the  land  which  would  necessitate  a 
marshaling  of  the  assets. 

Believing  that  the  rules  of  equity,  as  adopted  in  this 
State,  demand  that  the  real  property  which  is  subject  to 
the  lien  of  Wright's  judgment  should  be  sold  in  an  inverse 
ocder  of  alienatiorf,  the  decree  is  reversed,  and  one  will  be 
entered  here  directing  the  sale  upon  exect^ion,  first,  of 
the  premises  of  which  Mrs.  Boothe  died  siezed ;  second, 
the  land  conveyed  to  R.  Eakin  ;  and,  third,  if  necessary, 
the  real  property  so  conveyed  to  plaintiff.     Reversed. 


Decided  23  January*  1906. 
BAKER  COUNTY  v.  HUNTINaXON. 

83  Pac.  532. 

Principal  and  Surety— Right  to  Dklivkr  Incomplete  Instrument. 

1.  Where  a  KherlflT  delivered  a  bond  to  the  county  court,  without  signing  the 
same  himself,  without  the  names  of  any  of  the  sureties  except  one  being  entered 
therein  or  certain  other  sureties  qualifying,  and  without  obtaining  the  signatures 
of  sureties  sufficient  to  complete  ihe  bond,  the  liability  of  the  8uretie«  who  had 
signed  the  bond  depends  on  whether  the  sherlflThad  authority  to  deliver  the  un- 
completed and  Imperfect  instrument  as  their  act  and  deed,  and  not  on  whether 
there  was  any  definite  understanding  or  agreement  between  the  sheriflTand  such 
sureties  at  the  time  the  instrument  was  signed  by  them,  that  it  hhould  not  be  so 
delivered. 

Implied  Authority  to  Deliver. 

2.  A  principal's  authority  to  deliver  an  uncompleted  bond  as  the  act  and  deed 
of  certain  sureties  who  had  signed  the  same  may  be  Implied  from  the  sureties' 
acts  and  conduct. 

Mere  Signing  Not  Sufficient  Authority  to  Deliver. 

3.  Where  certain  sureties  signed  an  uncompleted  and  Imperfect  bond  of  a 
public  official,  attempting  to  limit  their  liability  by  writing  amounts  before  their 
namcM,  their  mere  act  in  so  signing  the  bond  and  leaving  it  with  the  principal, 
with  any  express  restriction  as  to  its  delivery,  is  Insutflclent  as  a  matter  of  law  to 
show  authority  of  the  principal  to  deliver  the  bond  in  its  uncompleted  condition. 


Jan.  1906.]     Bakbr  County  v.  Huntington.  329 

From  Umatilla:  William  R.  Ellis,  Judge. 

Action  by  Baker  County  against  A.  H.  Huntington  and 
others.  There  was  a  judgment  for  plaintiff,  from  which 
defendants  appeal.  Rbvbrsed. 

For  respondent  there  was  a  brief  over  the  name  of  Hart 
&  Smith,  with  an  oral  argument  by  Mr.  William  Smith. 

For  appellants  there  was  a  brief  over  the  names  of  Bauer 
&  Greene  and  Hailey  &  Lowell,  with  an  oral  argument  by  Mr. 
Thomas  Gab^rt  Greene. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

This  is  an  action  upon  an  instrument  alleged  to  be  a 
sheriff's  bond  as  tax  collector.  The  facts  are  substan- 
tially stated,  and  the  law  applicable  thereto  declared,  in 
the  opinion  on  the  former  appeal:  46  Or.  275  (79  Pac.  187). 
Upon  the  second  trial  it  appeared  that  Huntington  was 
elected  sheriff  of  Baker  County  in  June,  1900,  and  quali- 
fied by  taking  the  oath  of  office  in  July,  and  giving  the 
undertaking  required  by  Section  2392,  Hill's  Ann.  Laws. 
His  bond  as  tax  collector  was  fixed  by  the  county  court  at 
$10,000,  but  he  seems  to  have  had  some  diflSculty  in  ob- 
taining sureties  thereon,  and  at  the  meeting  of  the  county 
court  in  September,  he  had  been  able  to  obtain  only  the 
signatures  of  the  defendants  to  this  action,  each  of  whom 
had  attempted  to  limit  his  liability  by  writing  or  causing 
to  be  written  before  his  name  the  amount  for  which  he 
intended  to  become  liable,  and  which  amounted  in  the 
aggregate  to  only  $7,000.  Without  signing  the  instru- 
ment himself,  and  without  the  names  of  any  of  the  sure- 
ties, except  Brown,  being  entered  therein,  or  the  sureties 
Brown  and  Fleetwood  qualifying,  and  without  obtaining 
the  signatures  of  sureties  sufficient  to  complete  the  bond, 
the  uncompleted  instrument,  a  copy  of  which  is  set  out  in 
the  former  opinion,  was,  as  the  plaintiff  alleges,  delivered 


330  Bakbr  County  v.  Huntington.  [47  Or. 

by  Huntington  to  the  county  court,  and  received  by  it  as 
and  for  his  bond  as  tax  collector. 

The  defendants  requested  the  court  to  instruct  the  jury: 

"It  was  incuqibent  upon  Baker  County,  owing  to  the 
irregularities  appearing  on  the  face  of  the  instrument,  to 
make  all  reasonable  efforts  to  ascertain  if  there  were  con- 
ditions limiting  the  obligations  of  the.  sureties,  and  to 
ascertain  whether  or  not  the  sureties  thereon  had  con- 
sented to  its  delivery  in  the  condition  in  which  you  find 
it.  I  instruct  you  that  if  you  find  that  the  instrument  in 
question  was  handed  to  the  county  judge  of  Baker  County 
in  its  present  condition  by  Huntington,  and  that  at  said 
time  the  defendants  had  not  consented  to  its  use  by  said 
county  as  the  tax  collector's  bond,  that  the  receipt  by  said 
county  of  such  instrument  under  those  circumstances  did 
not  constitute  a  delivery,  and  such  receipt  does  not  render 
defendants  liable  thereon." 

The  court  refused  to  give  the  instruction  as  requested, 
but  gave  it  as  modified,  by  adding  at  the  end  of  the  first 
sentence  the  words  "unless  the  defendants  by  the  assent 
or  understanding  of  Huntington  imposed  no  restrictions 
as  to  its  delivery."    The  court  also  charged: 

"If  you  are  satisfied  that  the  instrument  involved  in 
this  suit  was  signed  by  the  defendants  and  delivered  to 
Huntington  ♦  ♦  without  any  agreement  or  understand- 
ing between  the  sureties  and  Huntington  that  it  was  not 
to  be  delivered  to  the  county  until  other  qualified  persons 
had  signed  it,  ♦  ♦  Huntington  had  the  right  to  deliver 
the  same  to  the  county  court,  and  if  you  find  that  there- 
after he  did  deliver  it  as  his  tax  bond,  and  the  county 
court  accepted  it  as  such,  your  verdict  should  be  for  the 
plaintiff." 

And  this  charge  was  also  given : 

"If  you  believe  from  the  evidence  that  the  bond  was 
signed  and. delivered  to  Huntington  without  any  condi- 
tions or  restrictions  as  to  when  and  how  it  was  to  be 
further  signed  or  executed,  if  at  all,  before  the  delivery, 
the  failure  of  the  court  to  inquire  regarding  his  authority 


Jan.  lOOe."!     Bakkr  Counny  v.  Huntington.  381 

^   to  deliver  it  would  not  affect  his  right  to  so  deliver  the 
bond." 

And  it  was  further  charged  that  if  the  bond  was  signed 

by  the  defendant  sureties,  and  — 

"They  gave  it,  or  left  it  in  the  hands  of  Huntington,  as 
his  tax  bond,  without  imposing  upon  hira  definite  or  any 
conditions  that  it  should  not  be  delivered  until  signed  by 
other  persons,  ♦  *  they  thereby  made  him  their  agent  to 
deliver  it  to  the  county  court  in  the  form  in  which  it  left 
their  hands." 

1.  By  these  instructions  and  others  of  similar  import, 
which  were  given,  but  not  here  set  out,  the  right  of  Hunt- 
ington to  deliver  the  bond  was  made  to  turn  on  the  ques- 
tion whether  there  was  any  definite  understanding  or 
agreement  between  him  and  the  defendants  at  the  time 
the  instrument  was  signed  by  them  that  it  should  not  be 
delivered  in  its  then  condition,  and  not  whether  he  had 
authority  to  deliver  the  uncompleted  and  imperfect  instru- 
ment as  their  act  and  deed.  This  is  not  the  law  as  de- 
clared in  the  former  opinion.  After  stating  that  "Hunt- 
ington must  have  been  clothed  with  authority  from  the 
sureties,  real  or  apparent,  to  deliver  the  bond,  as  a  com- 
pleted instrument,  or  his  disposition  of  it  could  not  bind 
them,"  the  opinion  proceeds  to  show  that  the  defects  and 
infirmities  of  the  instrument  were  such  that  the  doctrine 
of  apparent  authority  could  not  be  iuvoked,  and  therefore 
it  **became  a  question  of  fact  for  the  jury  to  determine 
from  the  evidence  whether,  in  reality,  Huntington  was 
given  authority — not  whether  he  had  apparent  authority, 
as  the  bond  on  its  face  refutes  that — from  the  sureties 
signing  to  deliver  this  bond  to  the  county  court  as  their 
act  and  deed."  We  do  not  think  we  can  make  the  ques- 
tion any  clearer  by  elaborating  on  the  former  opinion. 

2.  It  is  not  necessary  for  the  plaintiff  to  show  express 
authority  from  the  defendants  to  Huntington  to  deliver 


332  Baker  County  v,  Huntington.  [47  Or. 

the  bond.  His  authority  may  be  implied  from  their  acts 
and  conduct,  but  he  must  have  authority,  either  express 
or  implied,  to  make  the  delivery  before  it  could  become 
effective. 

3.  The  mere  signing  by  them  of  the  uncompleted  and 
imperfect  instrument  in  the  manner  in  which  they  signed 
it,  and  leaving  it  with  Huntington,  without  any  express 
restriction  as  to  its  delivery,  was  not  enough  to  show 
authority  to  deliver  it,  as  a  matter  of  law.  It  would  be  an 
important  fact  to  be  considered  along  with  all  the  other 
evidence  in  determining  whether  they  intended  to  vest 
him  with  authority  to  deliver  the  instrument  in  its  then 
condition  as  their  act  and  deed,  or  whether  the  under- 
standing was  that  it  should  not  be  delivered  until  the  ag- 
gregate amounts  assumed  by  the  several  sureties  should 
equal  the  face  of  the  bond.  If  at  the  time  they  executed 
the  bond  the}'  imposed  no  restrictions  upon  its  delivery, 
and  nothing  was  said  about  that  matter  or  the  obtaining 
of  other  sureties,  it  would  evidence  an  intent  to  make 
Huntington  their  agent  to  deliver  it  to  the  county  court; 
but  it  would  not  be  conclusive.  Huntington's  authority 
must  be  determined  from  all  the  circumstances  in  the 
case,  and  not  from  one  single  item  of  evidence.  The  un- 
completed condition  of  the  instrument,  the  manner  of  its 
execution  by  the  defendants,  their  attempt  to  limit  their 
liability  by  writing  the  amount  each  intended  to  assume 
opposite  his  signature,  the  fact  that  the  sum  of  such 
amounts  did  not  equal  the  face  of  the  bond,  are  all  im- 
portant factors,  and  should  be  considered. 

The  instructions  as  given  were  not  in  harmony  with 
these  views,  and  the  error  was  not  cured  by  the  instruc- 
tions given  at  the  request  of  the  defendants. 

The  judgment  is  reversed,  and  a  new  trial  ordered. 

Rbvbrsbd. 

Mr.  Justice  Hailby,  having  been  of  counsel,  took  no  part 
in  this  decision. 


Jan.  1906.]  Morgan  v.  Shaw.  333 

Decided  23  January,  1906. 

MORGAN  V.  SHAW. 

83  Pac.  634. 

Waters  — Initiation  of  Appropriation  — Right  by  Relation. 

1.  The  right  to  the  use  of  the  waters  of  a  stream  relates  back  to  Its  Initiation 
by  an  approprlator,  and  not  to  the  time  when  his  ditches  were  completed,  pro- 
vided the  work  of  digging  them  was  prosecuted  with  reasonable  diligence. 

Evidence  of  Priority  of  Appropriation. 

2.  Where  the  prior  appropriation  of  waters  of  a  public  stream  is  in  issue, 
declarations  of  defendant  that  his  right  to  the  use  of  the  water  was  a  subsequent 
one  Is  sufficient  to  show  a  prior  appropriation  by  plaintiflT  when  corroborated 
by  the  fact  that  for  18  years  defendant  permitted  sutficient  water  to  flow  in  the 
channel  of  the  stream  to  irrigate  plain tlfTs  land. 

Riparian  Rights— Common-law  Doctrine  — Prior  Appropriation. 

8.  Where,  as  in  Oregon,  the  common-law  doctrine  of  riparian  rights,  as  modi- 
fled  by  the  rule  of  prior  appropriation,  Is  recognized,  when  a  prior  settler  on 
public  laud  through  which  a  stream  flows  appropriates  the  waters  of  such  stream 
for  Irrigating  purposes,  the  stream  is  not  flowing  through  public  lands  at  the  time 
of  a  diversion  of  the  water  thereol  made  by  a  subsequent  settler. 

Waters  —  Effect  of  Appropriation  on  Adjacent  Land. 

4.  An  appropriation  of  water  is  a  grant  by  the  general  government  to  a  settler 
on  public  land  of  the  right  to  its  use  from  a  non navigable  stream,  to  the  li^ury 
of  all  public  land  above  the  point  of  diversion,  which  may  be  within  or  beyond 
the  boundaries  of  the  settler's  claim. 

From  Baker:  Robert  Eakin,  Judge. 

This  is  a  suit  by  Anna  M.  Morgan,  Maud  J.  Estes,  and 
Albert  J.  Morgan,  the  widow  and  heirs  at  law  respectively 
of  William  H.  Morgan,  deceased,  to  enjoin  the  defendant, 
John  B.  Shaw,  from  interfering  with  the  flow  of  water  in 
the  channel  of  a  nonnavigable  stream  to  the  head  of  plain- 
tiffs' ditches,  and  to  recover  damages  caused  by  his  diver- 
sion of  such  stream.  The  complaint  states  that  plaintiffs 
by  inheritance  are  the  owners  in  fee  and  in  the  possession 
of  160  acres  of  land,  particularly  describing  it,  in  Baker 
County,  and  that  in  1884  their  predecessor  in  interest 
diverted  110  inches  of  the  water  of  the  Middle  Fork  of 
Burnt  River  and  made  a  prior  appropriation  thereof  to 
such  premises,  where  that  quantity  has  ever  since  been 
used,  until  1902,  and  thereafter,  when  the  defendant  un- 
lawfully diverted  all  the  water  from  that  stream  to  their 


334  Morgan  v,  Shaw.  [47  Or. 

damage  in  the  sum  of  $995.  The  answer  denies  the  ma- 
terial allegations  of  the  complaint,  and  avers  that  the  de- 
fendant is  the  owner  of  320  acres  of  land,  describing  it,  in 
that  county,  through  which  such  fork  flows,  and  that  in 
May,  1884,  he  made  a  prior  appropriation  of  the  water  of 
that  stream,  to  the  extent  of  550  inches,  by  diverting  the 
same  at  points  on  the  public  domain,  which  quantity  he 
thereafter  continuously  used  in  irrigating  his  premises. 
The  reply  having  denied  the  allegations  of  new  matter  in 
the  answer,  the  cause  was  referred,  and  from  the  testi- 
mony taken  the  court  found  that  the  plaintiffs  and  the 
defendant,  as  parties,  had  an  equal  right  to  the  use  of  the 
water,  and  that  by  the  defendant's  diversion  thereof  plain- 
tiffs had  sustained  damages  in  the  sum  of  $100,  and,  a  de- 
cree having  been  rendered  in  accordance  therewith,  both 
parties  appeal.  Modified. 

For  plaintiffs  there  was  a  brief  over  the  name  of  Hart  & 
Smith,  with  an  oral  argument  by  Mr.  William  Smith. 

For  defendant  there  was  a  brief  and  an  oral  argument 
by  Mr.  A.  B.  Winfree. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

The  testimony  shows  that  the  Middle  Fork  of  Burnt 
River,  a  non navigable  stream,  flows  southeasterly  in  a  well- 
defined  channel  through  defendant's  land,  and  thence  to 
and  through  plaintiffs'  premises.  In  May,  each  year,  the 
snow  melting  in  the  mountains  where  this  fork  has  its 
source,  creates  a  volume  of  water  of  about  400  inches 
which  continues  to  flow  undiminished  about  a  month, 
when  it  begins  to  subside,  and  in  July  the  stream  affords 
only  about  60  inches,  which  stage  is  not  increased  until 
the  drought  is  broken.  The  lands  of  the  respective  par- 
ties are  arid,  and,  without  the  artificial  use  of  water,  un- 
productive, but,  when  properly  irrigated,  they  yield  valu- 
able crops,  hay  being  the  chief  product.    Dr.  E.  J.  Stevens, 


Jan.  1906.J  Morgan  v.  Shaw.  335 

in  May,  1884,  established  his  residence  upon  the  land  now 
owned  by  plaintiffs,  and  soon  thereafter  dug  ditches  and 
diverted  from  such  fork  water  which  has  ever  since  been 
used  in  irrigating  such  premises,  except  in  1902,  and  the 
seasons  following,  when  the  defendant,  by  diverting  all 
the  water,  interfered  with  such  use.  Stevens  made  tinal 
proof  in  support  of  his  entry,  and,  having  received  a 
United  States  patent  for  this  land,  conveyed  the  prem- 
ises, December  10, 1889,  to  William  H.  Morgan,  who  died 
seised  in  fee  and  in  possession  thereof,  February  3,  1893, 
whereupon  the  plaintiffs,  as  his  widow  and  heirs  respect- 
ively, succeeded  to  his  estate  therein. 

The  defendant,  as  a  witness  in  his  own  behalf,  testified 
that  in  May,  1884,  he  dug  a  ditch  a  few  rods  in  length 
whereby  water  was  diverted  from  the  Middle  Fork  of  Burnt 
River  and  flowed  into  a  small  swale  on  land  then  selected 
and  now  owned  by  him,  whence  the  water  returned  to  the 
stream  from  which  it  was  taken  ;  that  in  1885,  he  extended 
such  ditch,  and  used  the  water  flowing  therein  to  irrigate 
his  land,  and  dug  other  ditches  by  means  of  which  he  was- 
enabled  to  grow  crops  by  the  artificial  use  of  water ;  and 
that  his  first  ditch  was  prior  in  time  to  the  ditch  con- 
structed by  Dr.  Stevens.  This  witnes^f urther  testifies  that, 
having  made  an  appropriation  of  the  water  of  the  stream 
mentioned,  he  returned  to  the  premises  now  owned  by 
plaintiffs,  and  found  Dr.  Stevens  and  men  employed  by  him 
in  digging  his  ditch.  George  Elliott,  a  witness  for  plain- 
tiffs, testified  that  as  Dr.  Stevens*  team  was  light,  he  was 
sent  by  his  employer  with  a  heavier  team,  to  plow  a  ditch 
on  the  land  now  owned  by  plaintiffs,  and  referring  to  a 
memorandum  made  at  that  time,  he  said  it  was  June  2, 
1884,  but  that  he  had  no  recollection  of  seeing  the  defend- 
ant when  he  was  working  there. 

The  defendant  offered   in  evidence  the  deposition   of 
Thomas  Gardner,  taken  at  Omaha,  Nebraska,  to  the  effect 


336  Morgan  v.  Shaw.  [47  Or. 

that  the  deponent,  in  May,  1884,  assisted  the  defendant 
about  two  days  in  digging  the  first  ditch  from  the  Middle 
Fork  of  Burnt  River,  whereby  water  was  diverted  for  irri- 
gation, and  that  Dr.  Stevens  did  not  begin  the  construction 
of  his  ditch  until  the  fall  of  1884,  or  the  following  spring. 
The  witnesses  George  Whited,  Michael  Rouse  and  Daniel 
Elliott,  severally  testified  that  prior  to  the  defendant's 
diversion  of  all  the  water  from  the  stream,  he  admitted  to 
each  that  plaintiff's  right  to  the  use  of  the  water  for  irri- 
gation was  superior.  The  defendant  denies  the  statements 
so  imputed  to  him,  and  asserts  that,  though  he,  at  Mrs. 
Morgan's  request,  permitted  the  water  to  flow  in  the  chan- 
nel of  the  stream  to  her  premises  prior  to  1902,  his  acts 
in  these  respects  were  neighborly  only  and  with  no  inten- 
tion to  relinquish  his  rights. 

1.  Dr.  Stevens'  ditches  were  completed  about  June  15, 
1884,  whereby  water  was  diverted  irom  the  stream,  and 
used  to  irrigate  crops  grown  on  the  land  now  owned  by 
plaintiffs.  The  right  to  such  use  relates  back  to  its  initia- 
tion by  Dr.  Stevens,  and  not  to  the  time  when  his  ditches 
were  completed,  assuming  as  we  must,  that  the  work  of 
digging  them  was  prosecuted  with  reasonable  diligence. 

2.  It  nowhere  appears  in  the  evidence  that  the  ditch 
which  the  defendant  dug  in  May,  1884,  and  which  was 
never  seen  by  any  person,  except  himself  and  Thomas 
Gardner,  was  commenced  before  Dr.  Stevens  began  the 
construction  of  his  ditches.  The  defendant's  admission  to 
the  witnesses  named  that  Mrs.  Morgan's  right  to  the  use 
of  the  water  was  first  and  his  second  cQucedes  that  Dr. 
Stevens  initiated  a  prior  appropriation.  We  adhere  to  the 
general  rule  that  testimony  of  the  oral  declarations  of  a 
party  against  his  interest  should  be  viewed  with  caution, 
and  place  our  decision  herein  on  the  corroborating  fact 
that  from  1884  to  1902,  a  period  of  18  years,  the  defendant 
permitted  suflScient  water  to  flow  in  the  channel  of  the 


Jan.  1906.]  Morgan  v.  Shaw.  337 

stream  to  irrigate  the  arable  land  now  owned  bj  plaintiffs. 
Gardner's  declaration  under  oath,  that  Dr.  Stevens  did  not 
begin  the  construction  of  his  ditches  until  the  fall  of  1884 
or  the  spring  of  1885,  is  so  at  variance  with  the  fact,  ad- 
mitted by  the  defendant,  that  these  ditches  were  completed 
June  15,  1884,  as  to  render  his  deposition  of  but  little 
value  in  determining  the  truth. 

3.  Much  importance  seems  to  be  placed  by  defendant 
upon  the  averment  in  his  answer  that  he  diverted  water 
from  a  stream  at  a  point  on  the  public  domain,  and  that 
as  the  plaintiffs  failed  to  allege  such  fact  in  the  complaint, 
he,  having  given  evidence  thereof  at  the  trial,  had  estab- 
lished the  better  right.  This  contention  is  without  merit, 
for  where,  as  in  this  State,  the  common-law  doctrine  of 
riparian  rights,  as  modified  by  the  rule  of  prior  appropri- 
ation, is  recognized,  it  follows  that,  as  Dr.  Stevens  was  a 
prior  settler,  on  public  land  through  which  the  Middle 
Fork  of  Burnt  River  flowed,  and  his  title  to  the  premises 
secured  from  the  United  States  related  back  to  the  date  of 
his  settlement,  that  stream  was  not  flowing  through  public 
lands  when  the  defendant  made  his  diversion:  Brown  v. 
Baker,  39  Or.  66  (65  Pac.  799,  66  Pac.  193). 

4.  An  appropriation  of  water  is  a  grant  by  the  general 
government  to  the  settler  of  the  right  to  its  use  from  a 
nonnavigable  stream,  to  the  injury  of  all  public  land  above 
the  point  of  diversion,  which  may  be  within  or  beyond 
the  boundaries  of  the  settler's  claim.  The  evidence  shows 
that  plaintiffs  have  in  cultivation  about  90  acres  of  land, 
which  requires  an  inch  of  water,  under  six-inch  pressure, 
properly  to  irrigate  an  acre  thereof. 

The  decree  of  the  lower  court  will  therefore  be  so  modi- 
fied as  to  allow  to  plaintiffs  for  the  irrigation  of  their  land, 
this  quantity  of  water  as  a  prior  appropriation,  and  the 
defendant  will  be  perpetually  enjoined  from  interfering 

47  Or. 22 


338  State  v,  Ryan.  [47  Or. 

with  the  ^ow  of  the  volume  so  awarded  in  the  channel  of 
the  stream  to  the  head  of  their  ditches ;  the  plaintiffs  to 
recover  from  the  defendant  the  sum  of  $100  for  the  dam- 
ages sustained  by  reason  of  his  diversion,  and  their  costs 
and  disbursements  in  this  court  and  in  the  court  below. 

MODIFIBD. 


Arigued  10  October,  decided  '2»  October,  1905;  rehearing  denied  9  January,  1906. 

47      338 

f48     428  8TATB  v.  BYAN. 

82  Pac.  70S :  1  L.  R.  A.  (N.  B.)  StSSL 

Conspiracy —  EviDBNCB  of  Acts  and  Words  of  Conspirators. 

1.  Declarations  and  acts  of  every  member  of  a  conspiracy,  said  and  done 
during  the  existence  of  such  conspiracy,  and  In  furtherance  of  Us  purposes,  are 
competent  evidence  against  all  the  conspirators. 

Order  of  Proof— Connecting  Evidence. 

2.  It  is  dlKcretlonary  ^vlth  the  trial  court  to  admit  evidence  of  acts  or  declara- 
tions of  alleged  conspirators  before  sufficient  evidence  is  given  of  the  conspiracy  ; 
but  the  conspiracy  must  be  shown  to  have  existed  and  the  defendant  must  be 
connected  with  it  by  subsequent  evidence,  or  such  evidence  should  be  withdrawn 
from  the  Jury. 

Nature  of  Evidence  of  Conspiracy. 

8.  Conspiracies  are  usually  established  by  circumstantial  evidence,  as  of  the 
acts  and  statements  of  persons  involved,  and  direct  testimony  Is  not  necessary. 

Idem. 

4.  Evidence  of  the  conduct  of  several  alleged  conspirators  at  different  tJmes 
and  places  not  In  the  presence  of  each  other,  is  competent  on  the  question  of  con- 
spiracy, if  the  acts  shown  reasonably  seem  to  tend  to  the  accomplishment  of  a 
common  purpose. 

This  case  illustrates  this  rule  of  evidence:  It  appearing  that  defendant  ob- 
tained possession  of  prosecutor's  money  by  acting  as  stakeholder  for  a  pretended 
race  that  was  not  run,  that  one  of  the  parties  Involved  met  prosecutor  some  days 
before  in  another  city  where  he  explained  the  plan  of  the  proposed  race  and  after- 
ward Introduced  the  prosecutor  to  defendant,  and  that  subsequently  the  stake 
was  forfeited  through  the  absence  of  the  runner  on  whom  prosecutor  had  been 
induced  to  bet,  evidence  of  the  acts  and  declarations  of  the  party  who  first 
brought  the  scheme  to  the  attention  of  the  prosecutor  are  competent  both  to  show 
that  there  waM  a  conspiracy  and  to  indicate  Its  course  and  extent. 

Larceny  — Embezzlement— Obtainino  Possession  by  Fraud.* 
6.  Where  a  person  is  Induced  by  some  deception  to  part  with  the  possession  of 
money  or  proi^rty  to  one  who  Intended  to  appropriate  it,  and  does  so,  the  taking 
constitutes  lar  eny,  whatever  may  be  said  where  the  owner  intends  to  part  with 
not  only  the  possession  but  the  title  as  well. 


*Note.— B<>e  note  to  this  case,  collecting  several  authorities,  1  L.  R.  A.  (N.  ».) 
862,  and  notes  In  87  Am.  St.  Rep.  786  and  88  Am.  HL  Rep.  600.— Reporter. 


Oct.  1905.]  State  v.  Ryan.  339 

BVIDENOB  OF  ESCAPB. 

6.  It  l8  always  competent  to  show  that  a  defendant  fled  before  arrest,  but  the 
purpose  of  the  flight  Is  to  be  determined  by  the  Jury. 

From  Marion :  George  H.  Burnett,  Judge. 

J.  C.  Ryan,  not  being  entirely  contented  with  a  sentence 
of  three  years  in  the  penitentiary  for  participating  in  a 
robbery  perpetrated  by  means  of  a  fake  foot  race,  appeals, 
insisting  that  his  offense,  if  any,  is  obtaining  money  by 
false  pretenses,  or  a  gross  cheat  at  common  law. 

Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  James 
McCain,  W,  H,  Holmes  and  Webster  Holmes,  with  an  oral 
argument  by  Mr.  McCain  and  Mr.  William  Henry  Holmes, 

For  the  State  there  was  a  brief  over  the  name's  of  -4.  M. 
Crawford,  Attorney  General,  John  H.  McNary,  District 
Attorney,  and  Peter  Henry  D^Arcy,  with  an  oral  argument 
by  Mr.  D^Arcy  and  Mr.  Isaac  Homer  VanWinkle. 

Mr.  Chief  Justice  Wolverton  delivered  the  opinion. 

The  defendant  was  convicted  of  the  crime  of  larceny, 
and  appeals  from  the  judgment  rendered  in  pursuance 
thereof. 

The  subject  of  the  larceny  was  $2,000,  consisting  of  100 
gold  $20  pieces,  current  money  of  the  United  States,  alleged 
to  have  been  the  property  of  one  John  F.  Roth,  the  prose- 
cuting witness.  Roth  testified  in  substance  that  he  was 
acquainted  with  the  defendant ;  that  he  met  him  in  Salem, 
Oregon,  at  the  Willamette  Hotel  on  the  23d  day  of  Septem- 
ber, 1904 ;  that  defendant  came  to  a  room  in  the  hotel 
occupied  by  witness  and  a  party  by  the  name  of  Huston, 
and  was  introduced  to  him  by  Huston ;  that  witness  met 
Huston  in  Portland,  about  two  days  prior  to  this  date,  in 
Doctor  PohTs  office,  and  had  a  conversation  with  him. 
therein  ;  and  that  he  explained  what  he  was  up  for.  Wit- 
ness continues  (quoting  from  the  bill  of  exceptions): 


340  State  v.  Ryan.  [47  Or. 

"Huston  told  me  that  two  men  here  at  Balem  were  try- 
ing to  get  up  a  foot  race,  and  he  said  that  they  wanted 
some  bona  tide  business  man  to  come  up  here  and  hold  the 
money  for  them ;  and  he  says,  if  he  could  get  me  to  come 
up  here,  he  would  assure  me  that  he  would  pay  me  well 
for  my  trouble.  He  said  I  did  not  need  to  bet  anything. 
He  said  them  two  fellows  had  lots  of  money.  All  they 
wanted  was  for  me  to  come  up  here  and  hold  the  money, 
and  divide  it  fairly  after  the  race  was  over,  and  I  agreed 
to  come  up  on  those  conditions  ;  and  I  came  up  here,  and 
on  Friday  evening  we  went  to  the  hotel,  and  Ryan  came 
up  to  our  room,  and  Huston  introduced  me  to  him,  and 
he  [Ryan]  explained  the  thing  differently.  He  said  he 
wanted  to  bet  some  money  on  a  foot  race  against  Raymond. 
He  said  Raymond  was  a  friend  of  his,  and  he  wanted  me 
to  bet  against  Raymond  for  him,  and  he  said  he  would  pay 
me  for  my  trouble.  Next  day  he  met  us  again  and  wanted 
to  know  if  I  had  any  money  in  the  bank  to  show  I  was  a 
business  man  in  Portland.  The  next  day  Ryan  came  to 
the  hotel  again,  and  wanted  to  know  if  I  had  any  money 
to  show,  in  case  of  an  argument,  that  everything  was  all 
right,  that  I  was  responsible,  and  I  told  him  that  I  had  a 
bankbook,  the  money  that  was  put  in  the  bank  from  our 
business,  and  a  small  check,  and  he  said  in  case  of  an  ar- 
gument he  wanted  to  show  about  12,000  in  the  bank  ;  that 
that  would  be  enough  to  satisfy  Raymond. probably,  if  he 
lost  that  much  money  and  wanted  to  protest  the  race.  He 
wanted  me  to  go  back  and  make  arrangements  so  I  could 
get  $2,000,  and  I  went  back  and  explained  the  case  to  my 
brother-in-law,  and  he  let  me  have  that  amount  of  money. 
Ryan  said  we  might  not  have  to  draw  it  and  I  agreed  to 
it,  and  we  came  back  here  Tuesday,  Huston  and  I,  and 
Ryan  met  us  and  went  to  the  hotel  with  us,  and  we  had 
dinner,  and  after  dinner  he  [Ryan]  went  out.  About  1 
o'clock  Ryan  met  us  again,  and  he  took  us  down  to  his. 
room  —  it  was  over  a  saloon  on  the  corner  —  and  he  intro- 
duced me  to  this  man  Raymond,  and  Raymond  said  that 
he  wanted  to  bet  some  money  on  a  foot  race.  Ryan  gave 
me  a  bunch  of  greenbacks  marked  $2,500,  and  he  said, 
when  Raymond  came,  *You  bet  this  money  with  him,*  so 
Raymond  said  he  wanted  to  bet,  and  he  put  down  $2,500 


Oct.  1905.]  State  v,  Ryan.  341 

in  greenbacks.  Raymond  said  he  would  go  back  to  the 
bank,  and  Ryan  gave  me  a  bunch,  $3,000,  all  in  green- 
backs, and  I  bet  Raymond  all  this  other  bunch.  It  was 
put  in  a  little  grip,  and  Raymond  went  downstairs  with 
this  man,  Morris.  While  he  was  down  there,  Ryan  gave 
me  another  bunch  of  $5,000  in  greenbacks,  but  he  says, 
'Go  down  and  draw  your  money,'  and  he  said,  *1  want  the 
money.'  I  did  not  think  anything  about  it  being  a  scheme, 
and  I  went  down  to  draw  my  money.  It  was  $2,000.  I  got 
it  all  in  20-dollar  gold  pieces.  When  I  got  back.  Raymond 
says,  *I  have  got  $5,000  more,'  and  I  bet  him  the  $5,000 
which  Ryan  gave  me.  Ryan  says,  *Did  you  draw  your 
money  from  the  bank?' — and  I  had  it  in  a  little  bag,  and 
Ryan  took  it  and  he  put  it  in  a  grip  and  he  says,  *We  will 
run  the  race,'  and  he  says,  *Leave  the  money  in  the  bank,' 
and  he  stepped  out  about  five  or  ten  minutes  and  came  back 
and  showed  me  a  little  receipt,  which  read  :  'One  grip  and 
contents  deposited  here.'  He  folded  it  up  and  put  it  in  his 
pocket,  and  said,  'After  the  foot  race  we  will  get  it,'  and  we 
went  out  to  the  ball  ground,  and,  when  we  got  there,  there 
were  a  few  boys  in  there,  about  16  or  18  years  old,  playing 
ball.  Then  it  was  decided  to  go  back  of  the  ball  ground, 
and  they  went  back  there,  and  Ryan  stepped  off  60  feet  and 
told  me  to  go  to  one  end  while  he  measured  off  60  feet,  and  I 
stayed  up  there,  and  the  men  started  to  run  and  one  fell 
down,  and  Ryan  said  to  Raymond  :  'We  will  run  this  thing 
over  inside  of  10  days,'  and  he  said:  *A11  right.  We  will 
go  to  the  race  track  or  some  other  place,'  and  we  agreed 
all  around  that  we  would  run  it  off  in  10  days,  and  Ryan 
said :  'W^e  will  leave  the  money  in  the  bank  until  after  the 
race  comes  off,'  and  I  went  back  to  Portland  that  same 
night,  and  Huston  went  along." 

The  witness  further  testified  in  substance  that  he  came 
to  Salem  on  the  23d  of  September  in  company  with  Hus- 
ton; that  Ryan,  Raymond,  Morris,  Huston,  and  another 
man  accompanied  him  to  the  race;  that  Morris  was  one 
of  the  runners  and  Huston  the  other ;  that  Ryan  was  sup- 
posed to  be  betting  on  Huston  and  Raymond  on  Morris. 

The  defendant  offered  evidence  tending  to  show  that  he 


342  State  v.  Ryan.  [47  Or. 

met  Koth,  the  prosecuting  witness,  for  the  first  time  on  the 
23d  of  September,  1904;  that  he  was  not  introduced  to 
him,  but  that  Roth  came  to  him  on  the  street  and  said  to 
him,  in  substance :  **We  understand  that  you  know  some- 
thing about  athletics,  and  [referring  to  the  foot  race  in 
question]  we  would  like  for  you  to  be  stakeholder,"  which 
the  defendant  consented  to  do.  He  said,  amongst  other 
things,  to  the  defendant,  that  he  wanted  it  understood  that 
this  race  was  to  be  run  as  private  as  possible,  and,  as  his 
partner  was  interested  with  him,  he  did  not  want  him  to 
know  this  race  was  coming  off ;  and,  further,  the  defendant 
testified  and  offered  evidence  tending  to  show  that,  after 
the  race  was  run  and  was  unsatisfactory  to  Roth,  it  was 
agreed  between  Roth  and  Raymond,  who  was  backing  the 
other  runner,  Morris,  that  the  race  should  be  again  run 
on  the  following  Saturday ;  that  the  defendant  retained 
the  money  until  late  in  the  evening  Saturday,  and  after 
the  time  had  expired  within  which  the  race  was  to  be  rerun. 
Raymond  and  Morris,  his  runner,  were  present,  ready  to 
rerun  the  race,  tut  that  Roth  did  not  come  with  his  runner 
to  contest ;  that  after  his  time  had  expired  [the  defendant] 
as  stakeholder  turned  the  money  in  his  hands  over  to  Ray- 
mond. 

The  foregoing  testimony  illustrates  fairly  the  respective 
positions  of  the  parties  litigant.  There  was  an  objection 
interposed  to  the  prosecuting  witness  detailing  what  was 
said  and  done  by  Huston  in  Portland,  that  being  two  days 
prior  to  the  time  they  met  the  defendant  in  Salem,  on  the 
ground  that  such  evidence  was  incompetent  by  which  to 
establish  the  defendant's  guilt.  The  court,  however,  per- 
mitted it  to  go  to  the  jury  upon  the  assurance  on  the  part 
of  the  State's  attorney  that  he  would  connect  up  Huston 
with  the  defendant  in  the  transaction  later  on  in  the  trial. 
Error  is.  now  predicated  upon  the  admission  of  such  testi- 


Oct.  1905.]  State  v.  Ryan.  343 

mony,  not  because  of  the  order  in  which  it  was  allowed  to 
go  to  the  jury,  but  solely  upon  its  incompetency. 

1.  The  theory  of  the  State  is  that  both  Huston  and  the 
defendant  were,  with  others,  engaged  in  a  conspiracy  to 
wrongfully  obtain  the  money  in  question  from  Roth,  and 
that  what  was  said  and  done  by  Huston  in  Portland  was 
in  furtherance  of  such  conspiracy,  and  therefore  tanta- 
mount to  the  utterances  and  acts  of  the  defendant  him- 
self. It  is  a  matter,  perhaps,  of  substantive  law,  rather 
than  a  rule  of  evidence,  that  what  one  conspirator  says 
and  does  during  the  existence  and  in  furtherance  of  the 
conspiracy  are  the  utterances  and  doings  of  all,  on  like 
principle  that  the  acts  of  an  agent  within  the  legitimate 
scope  of  his  employment  bind  his  principal  as  if  done  by 
the  latter.  The  conspirators  are  all  principals,  and  the 
acts  of  each  are  the  acts  of  his  fellow-conspirators,  and 
are  binding  upon  that  basis.  Unless,  therefore,  the  rela- 
tionship is  such  as  to  make  them  all  principals,  none  are 
affected,  except  the  party  whose  acts  or  admissions  are  in 
question.  When  the  appropriate  relationship  is  shown, 
then  may  the  acts  and  utterances  of  each  be  shown  as  the 
acts  and  utterances  of  all :  3  Wigmore,  Evidence,  §  1797  ; 
15  Am.  Law  Rev.  80.  The  common  expression  of  the 
books  seems  to  be  that  "those  declarations  only  are  admis- 
sible which  are  made  by  a  conspirator  during  the  existence 
of  the  conspiracy,  and  in  furtherance  of  it'*:  Underbill, 
Grim.  Ev.  §  493.  Greenleaf  says  that  the  acts  and  decla- 
rations must  **be  fhose  only  which  were  made  and  done 
during  the  pendency  of  the  criminal  enterprise,  and  in 
furtherance  of  its  objects'^  1  Greenleaf,  Evidence  (16  ed.), 
§  184a. 

2.  Now,  it  is  argued  that  what  Huston  said  and  did  in 
Portland  was  prior  to  the  formation  of  any  conspiracy 
between  the  parties  concerned  in  the  theft.  But  is  the 
premise  well  founded?    It  is  not  material  at  what  particu- 


344  State  v.  Ryan.  [47  Or, 

lar  time  any  one  entered  into  the  conspiracy.  It  is  enough 
to  know  that  he  was  a  common  conspirator.  The  acts  or 
declarations  of  one  of  more  of  the  conspirators  are  some- 
times admitted  before  suflRcient  proof  is  given  of  the  con- 
spiracy. This  rests,  however,  largely  within  the  discretion 
of  the  trial  court,  but  the  proper  connection  must  be  sub- 
sequently made,  so  as  to  show  prima  facie  a  conspiracy 
between  all,  before  such  acts  or  declarations  will  ultimately 
be  permitted  to  go  to  the  jury.  Such  is  the  course  pur- 
sued in  the  present  case. 

3.  A  conspiracy  may  be  proven  by  showing  the  decla- 
rations, acts  and  conduct  of  the  conspirators.  It  is  sel- 
dom possible  to  establish  a  specific  understanding  by  direct 
agreement  between  the  parties  to  effect  or  accomplish  an 
unlawful  purpose.  Usually,  therefore,  the  evidence  must 
be  necessarily  circumstantial  in  character,  and  will  be 
sufficient,  if  it  leads  to  the  conviction  that  such  a  combi- 
nation in  fact  existed.  Thus,  if  it  be  shown  that  the  con- 
spirators were  apparently  working  to  the  same  purpose, 
—  that  is,  one  performing  one  part  and  another  another,-— 
each  tending  to  the  attainment  of  the  same  object,  so  that 
in  the  end  there  was  apparent  concert  of  action,  whether 
they  were  acting  in  the  immediate  presence  of  each  other 
or  not,  it  would  afford  proof  of  a  conspiracy  to  effectuate 
that  object :  Mussel  Slough  Case  (C.  C.)  5  Fed.  680 ;  United 
States  V.  Sacia  (D.  C.)  2  Fed.  754.  Such  proofs  would  evi- 
dence prima  facie  a  conspiracy.  So  it  is,  as  was  pertinently 
said  by  Pennefather,  C.  J.,  in  R,  v.  O^Connell,  cited  and 
quoted  in  2  Wigmore  on  Evidence,  §  1079:  "If  the  con- 
spiracy be  proved  to  have  existed,  or,  rather,  if  evidence 
be  given  to  the  jury  of  its  existence,  the  acts  of  one  in  fur- 
therance of  the  common  design  are  the  acts  of  all ;  and, 
whatever  one  does  in  furtherance  of  the  common  design, 
he  does  as  the  agent  of  the  co-conspirators." 


Oct.  1905.]  State  v.  Ryan.  345 

4.  Now,  a  conspiracy  between  Huston  and  the  defendant 
was  not  shown  prima  facie  sufficient  to  carry  the  case  to 
the  jury,  until  their  acts  and  conduct  two  days  later  in 
Salem  were  detailed  by  the  witness.  But  Huston's  decla- 
rations and  representations  to  Roth  in  Portland,  and  the 
fact  that  the  former  accompanied  the  latter  to  Salem,  lead- 
ing to  a  meeting  with  the  defendant  and  the  other  parties 
concerned  in  the  scheme,  coupled  with  the  further  fact 
that  the  scheme  was  then  carried  to  a  successful  issue,  all 
participating,  show  a  common  design  of  all.  That  design 
could  not  have  been  successful  without  Roth's  presence  in 
Salem^  and  Huston  played  the  part  of  bringing  him  here. 
This  affords  evidence  in  itself  of  a  conspiracy  existing  prior 
to  the  time  that  Huston  talked  with  Roth  in  Portland,  and, 
further,  that  the  acts  and  declarations  of  Huston  in  the 
presence  of  Roth  were  but  a  part  of  the  common  design  to 
effectuate  the  purpose  of  the  conspiracy.  What  Huston 
did,  therefore,  in  Portland  was  in  furtherance  of  the  com- 
mon design  and  prima  facie,  at  least,  during  the  existence 
of  the  conspiracy.  The  scheme  included  a  foot  race  and 
a  betting  thereon,  or  a  simulation  to  that  effect.  Huston 
talked  about  such  a  scheme  in  Portland,  and,  when  he 
induced  Roth  to  come  to  Salem,  the  defendant  took  the 
matter  up  where  Huston  had  left  it,  and  Huston  subse- 
quently participated  in  the  race.  Could  there  be  any  more 
pertinent  evidence  of  a  conspiracy  between  Huston  and 
the  defendant  to  accomplish  an  unlawful  purpose,  and 
that  it  had  its  origin  prior  to  Huston's  meeting  Roth  in 
Portland?  Clearly  not.  The  ruling  of  the  trial  court  in  ad- 
mitting the  evidence  was  therefore  unexceptionable :  State 
\.  Moore,  32  Or.  65  (48  Pac.  468),  is  by  analogy  authority 
for  this  view,  and  State  v.  McOee,  81  Iowa,  17  (46  N.  W. 
764),  so  much  relied  on  by  appellant,  is  not  adverse. 

5.  The  next  assignment  of  error  relates  to  the  following 
instructions  of  the  court,  to  wit : 


346  State  v.  Ryan.  [47  Or. 

"If,  however,  the  property  was  received  or  taken  by  the 
defendant  with  a  felonious  intent  at  the  time,  he  is  guilty 
of  larceny,  even  though  it'  were  by  the  owner's  conaent. 
Any  preconcerted  plan  to  obtain  money,  and  an  intent  to 
steal  coupled  with  that  plan,  is  felonious.  If  money  is 
obtained  by  trick,  artifice,  or  device,  as  fraudulently  ob- 
taining it  under  color  of  a  bet,  inducing  a  person  to  bet 
merely  for  the  purpose  of  getting  possession  of  the  stakes 
deposited,  and  with  the  intent  to  appropriate  them,  regard- 
less of  the  event  on  which  the  bet  was  made,  is  larceny. 
So  you  are  to  consider  whether  or  not  this  whole  transac- 
tion was  a  mere  scheme  or  device  to  steal  Roth's  money. 
If  it  appears  to  you  beyond  a  reasonable  doubt  that  the 
defendant  entered  into  such  scheme,  either  by  himself  or 
with  others,  intending  all  the  time  to  steal  this  money 
from  Roth,  and  you  should  believe  that  beyond  a  reason- 
able doubt,  and  further  find  that  he  did  get  the  money  by 
such  scheme,  you  should  find  him  guilty  as  charged  in 
the  indictment." 

The  meaning  intended  to.be  conveyed  by  the  language 
quoted  is  elucidated  by  a  preceding  clause  and  others  that 
followed,  whereby  it  was  explained  that,  if  the  property 
was  received  in  good  faith,  a  subsequent  wrongful  conver- 
sion would  not  support  an  allegation  of  larceny  in  the 
original  taking,  and,  further,  that  if  the  bet  was  made,  and 
Ryan  was  a  stakeholder  in  good  faith,  he  could  pay  the 
money  over  to  the  winner  at  any  time  after  the  race,  and 
before  a  return  was  demanded  by  Roth,  and  the  transac- 
tion would  not  constitute  larceny.  The  legal  significance 
of  the  term  **bet''  or  "wager"  is  well  understood.  The  con- 
tention of  appellant  is  that,  if  Roth  bet  his  money  on  the 
foot  race  in  question,  it  is  not  of  the  slightest  legal  conse- 
quence how  he  came  to  do  so,  whether  he  was  so  induced 
by  fraud  or  not,  or  whether  the  foot  race  was  fair  or  not  ; 
that  in  either  or  any  event  he  parted  with  his  money  vol- 
untarily, and,  there  not  being  present  the  element  of  tres- 
pass, there  could  be  no  larceny. 


Oct.  1905.]  State  v,  Ryan.  347 

The  proposition  goes  beyond  the  authorities.  It  is  not 
larceny,  say  the  learned  authors  of  the  American  and 
English  Encyclopaedia  of  Law  (volume  18,  2  ed.,  482),  to 
obtain  money  "by  inducing  a  person  to  bet  on  some  game 
or  trick,  and  then,  by  fraudulently  making  it  appear  that 
the  party  betting  has  lost,  taking  the  stakes  deposited  by 
him."  The  text  seems  to  be  based  upon  an  old  English 
case,  where  the  party  parted  with  his  property  on  a  wager- 
ing trick,  supposing  that  he  had  lost  fairly  :  King  v.  Nich- 
olaoUf  2  Leach,  C.  C.  610.  By  a  footnote  the  authors  fur- 
ther say :  *'A  distinction  is  to  be  noted  between  apparently 
winning  a  bet  by  fraudulent  means  and  by  inducing  a 
party  to  deposit  money  or  goods  on  a  bet  merely  as  a 
means  of  getting  possession  of  them."  The  principle  ap- 
plicable for  determining  whether  money  obtained  fraud- 
ulently amounts  to  larceny  or  not  is  well  illustrated  in 
People  V.  Tomlinson,  102  Cal.  19,  23  (36  Pac.  506,  507). 
The  court  say :  "Where  one  honestly  receives  the  posses- 
sion of  goods  upon  trust,  and  after  receiving  them  fraud- 
ulently converts  them  to  his  own  use,  it  is  a  case  of  em- 
bezzlement. If  the  possession  has  been  obtained  by  fraud, 
trick,  or  device,  and  the  owner  of  it  intends  to  part  with 
his  title  when  he  gives  up  possession,  the  offense,  if  any, 
IS  obtaining  money  by  false  pretenses.  But  where  the 
possession  has  been  obtained  through  a  trick  or  device, 
with  the  intent,  at  the  time  the  party  receives  it,  to  con- 
vert the  same  to  his  own  use,  and  the  owner  of  the  prop- 
erty parts  with  the  possession  and  not  with  the  title,  the 
offense  is  larceny."  The  distinction  was  applied  in  a  later 
case:  People  v.  Shaughnessy,  110  Cal.  598  (43  Pac.  2).  Mr. 
Justice  Caton  states  the  principle  a  little  more  compre- 
hensively in  Welsh  v.  People,  17  111.  339.  He  says:  "The 
rule  is  plainly  this :  If  the  owner  of  goods  alleged  to  have 
been  stolen  parts  with  both  the  possession  and  the  title  to 
the  goods  to  the  alleged  thief,  then  neither  the  taking  or 


348  State  v,  Ryan.  [47  Or. 

the  conversion  is  felonious.  It  can  but  amount  to  fraud. 
It  is  obtaining  money  under  false  pretenses.  If,  however, 
the  owner  parts  with  the  possession  voluntarily,  but  does 
not  part  with  the  title,  expecting  and  intending  that  the 
same  thing  shall  be  returned  to  him,  or  that  it  shall  be 
disposed  of  on  his  account,  or  in  a  particular  way,  as 
directed  or  agreed  upon,  for  his  benefit,  then  the  goods 
may  be  feloniously  converted  by  the  bailee,  so  as  to  relate 
back  and  make  the  taking  and  conversion  larceny."  This 
doctrine  is  expressly  reaffirmed  by  two  later  cases  from 
the  same  State :  Stinson  v.  PeopU,  43  111.  397  ;  Doss  v.  Peo- 
pie,  158  111.  G60  (41  N.  E.  1093,  49  Am.  St.  Rep.  180).  The 
latter  comes  very  near  on  the  facts  to  the  case  at  bar. 

Now,  if  the  defendant  and  his  co-conspirators  made  use 
of  the  bet  as  a  scheme  or  device  to  secure  possession  of 
Roth*s  money,  and  at  the  same  time  the  bet  was  merely 
simulated,  it  not  being  intended  that  there  should  be  a 
bona  fide  foot  race  between  the  supposed  contestiints,  and 
the  money  was  received  to  be  disposed  of  on  the  result  of 
such  race,  and  the  race  was  not  run  bona  fide,  and  was 
not  so  intended  from  the  beginning,  then  it  was  larceny 
in  the  defendant  to  appropriate  it.  The  money  was  re- 
ceived by  the  defendant. to  be  disposed  of  in  a  particular 
way;  that  is,  to  be  held  as  stakes  to  abide  the  event  of  a 
bona  fide  foot  race.  If  Roth  won,  the  money  was  to  be 
returned  to  him  with  his  winning,  but,  if  he  lost,  then  to 
be  turned  over  to  Raymond.  Such  was  the  effect  of  the 
wager,  if  real.  If,  however,  there  was  not  to  be  a  bona 
fide  race,  and  the  defendant  intended  to  retain  the  money 
to  his  own  use,  and  not  to  dispose  of  it  on  account  of  Roth, 
or  in  a  particular  way  to  which  Roth  had  assented,  then 
there  was  a  larcenous  taking,  for  Roth  would  never  have 
assented  to  staking  his  money  if  he  had  known  that  it 
was  to  be  retained  in  any  event.  Though  he  may  have 
voluntarily  given  the  money  into  the  hands  of  the  defend- 


Oct.  1905.]  State  v.  Ryan.  349 

ant,  he  did  not  part  with  the  title,  because  he  was  tricked 
to  believe  there  was  to  be  a  fair  and  bona  fide  foot  race  ; 
and,  while  he  might  have  intended  to  bet,  the  defendant 
did  not  intend  that  he  should  have  any  chance  of  winning, 
and  therefore  did  not  intend  to  account  for  the  money  or 
dispose  of  it  in  the  particular  way  agreed  upon.  Thus  he 
obtained  Roth's  money  feloniously,  and  was  guilty  of  lar- 
ceny from  the  inception.  If  this  is  not  larceny,  then  the 
distinction  is  too  refined  for  practical  and  safe  applica- 
tion. As  was  said  by  Mr.  Justice  Campbell,  in  People  v. 
Shaw,  57  Mich.  403,  406  (24  N.  W.  121, 122,  58  Am.  Rep. 
372),  whose  language  is  peculiarly  apt  in  the  present  exi- 
gency: **We  do  not  think  it  profitable  to  draw  overnice 
metaphysical  distinctions  to  save  thieves  from  punish- 
ment. If  rogues  conspire  to  get  away  with  a  man's  money 
by  such  tricks  as  those  which  were  employed  here,  it  is 
not  going  beyond  the  settled  rules  of  law  to  hold  that  the 
fraud  will  supply  the  place  of  trespass  in  the  taking,  and 
so  make  the  conversion  felonious.^' 

The  circuit  court  properly  distinguished  between  a  real 
bet  and  one  that  was  merely  colorable  or  simulated  for  the 
purpose  of  getting  wrongful  possession  of  Roth's  money, 
and  the  instructions  are  not  vulnerable  to  the  objections 
interposed. 

6.  The  court  further  instructed  that  evidence  of  an 
escape  is  always  admissible  as  against  the  defendant,  but 
at  the  same  time  left  it  to  the  judgment  of  the  jury  whether 
or  not  the  real  purpose  of  the  defendant  was  to  escape  jus- 
tice or  to  go  about  his  affairs  innocently.  This  is  assigned 
as  error.  The  matter  is  disposed  of,  however,  favorable  to 
the  instructions  in  State  v.  Lee,  17  Or.  488  (21  Pac.  455). 
No  further  comment  is  necessary. 

The  judgment  of  the  circuit  court  will  be  affirmed,  and 
it  is  so  ordered.  Affirmed. 


350  Price  v.  Oregon  Railroad  Co.  [47  Or. 

,  Decided  23  January,  1906. 

47      850 
[f48     449  PBICE  V.  OBEGON  BAILBOAD  CO. 

83  Pac.  843. 

Principal  and  Agent— Noticb  to  Agent— Scope  of  Authobity. 

1.  In  an  action  against  a  railroad  company  for  negligently  conBtrucllng  a  flU 
over  a  water  course  and  leaving  an  alleged  Insufficient  drain,  because  of  which 
water  was  thrown  back  on  plaintiff's  land,  declarations  made  by  plaintiff,  before 
the  fill  had  been  constructed,  to  a  person  who  was  taking  measurements  with 
surveying  instruments  at  the  place  where  the  fill  was  subsequently  made,  con- 
cerning the  quantity  of  water  which  flowed  in  the  stream,  and  similar  declara- 
tions thereafter  made  to  persons  at  work  on  the  fill,  not  shown  to  have  any 
authority  from  defendant  in  the  matter  of  planning  or  constructing  the  same  or 
determining  the  sise  of  the  drain,  etc.,  are  inadmissible. 

Water  Courses- Duty  of  Railroads  in  Building  Culverts. 

2.  It  is  the  duty  of  a  railroad  company  in  constructing  a  flU  across  a  water 
course  to  make  sufficient  provision  for  the  passage  of  the  water  of  the  stream, 
and  to  exercise  ordinary  skill  and  knowledge  to  so  construct  the  work  as  to 
allow  for  the  passage  of  such  wat&r  as  may  be  reasonably  expected  to  flow  In 
floods  shown  by  experience  to  be  liable  to  occur. 

Instructions  Should  Not  Emphasize  Special  Testimony. 

8.  Courts  should  not  lay  special  stress  on  particular  items  of  testimony  in 
chaiiging  Juries,  or  say  that  a  stated  result  necessarily  follows  the  determination 
of  a  i>artlcular  claim. 

For  instance :  In  an  action  against  a  railroad  company  for  alleged  negligence 
in  constructing  a  All  through  a  water  course,  an  instruction  that  if  plaintiff 
Informed  defendant's  employees  that  at  times  the  water  was  hip  deep  at  the  place 
where  the  All  was  constructed,  or  that  the  pipe  inserted  by  them  for  the  paasageof 
the  water  was  not  in  his  opinion  sufficient,  they  might  consider  such  testimony  in 
determining  whether  the  company  used  ordinary  care  In  constructing  the  drain, 
and  whether  it  should  have  reasonably  anticipated  such  a  flood  as  caused  the 
damage,  is  improper,  as  giving  undue  importance  to  certain  testimony  and  as 
making  the  question  of  negligence  determinable  from  two  items  of  evldencet 
instead  of  from  a  consideration  of  all  the  testimony. 

Instructions  on  Irrelevant  Matters. 

4.  Instructions  to  Juries  should  not  deal  with  irrelevant  matters,  since  the 
result  must  be  confusing. 

For  instance :  Where,  in  an  action  against  a  railroad  company  for  negligently 
constructiuga  All  through  a  watercourse,  It  is  conceded  that  neither  the  embank- 
ment of  a  county  road,  nor  a  culvert  therein,  affected  plaintiff's  Injury,  It  is  error 
for  the  court  to  charge  that,  in  determining  whether  defendants  used  ordinary 
cjvre  in  determining  the  size  of  the  All,  the  Jury  may  consider,  with  other  matters, 
the  size  of  the  culvert  across  the  road  between  tbe  All  and  plalntlAT's  residence. 

Distinction  Between  Surface  Water  and  Stream  Water. 

6.  Water  that  is  diffused  over  the  ground  unconnected  with  a  stream  is  sur- 
face water;  while  tbe  water  that  is  part  of  the  Aowing  volume  is  stream  water, 
whether  tbe  stage  be  high  or  low,  within  tbe  bnnks  or  out  along  adjacent  ground. 
In  this  case  the  water  that  caused  the  Injury  was  a  continuous  flowing  volume, 
and  therefore  not  surface  water  but  flood  water. 

Waters  — Extraordinary  Flood  — Question  for  Jury. 

6.  It  \a  for  the  Jury  to  saj'  whether  a  flood  is  such  as  ought  to  have  been 
expected  and  provided  against,  or  was  extraordinary  and  unprecedented,  and 
therefore  such  as  need  not  reasonably  have  been  anticipated. 


Jan.  1906. J     Price  v.  Oregon  Railroad  Co.  351 

From  Umatilla:  William  R.  Ellis,  Judge. 

This  is  an  action  by  Thomas  J.  Price  against  the  Oregon 
Railroad  &  Navigation  Co.  to  recover  damages  for  an  in- 
jury to  plaintiff's  property  and  premises  by  backwater, 
alleged  to  have  been  caused  by  the  negligence  and  unskill- 
fulness  of  the  defendant  company  in  constructing  and 
maintaining  a  fill  on  the  line  of  its  road  from  Pendleton 
to  Walla  Walla  on  and  over  the  channel  of  Hale  Creek, 
near  the  town  of  Weston.  Hale  Creek  is  a  small  stream, 
about  two  feet  deep  and  from  8  to  10  feet  wide  where  it 
flows  through  plaintiff's  premises.  It  has  its  origin  several 
miles  in  an  easterly  direction,  from  where  it  crosses  de- 
fendant's road  and  flows  through  a  narrow  valley  or  draw 
between  the  hills.  It  is  dry  in  the  summer  months,  but 
carries  more  or  less  water  during  the  remainder  of  the 
year.  The  plaintiff  is  the  owner  of  a  tract  of  land  through 
which  the  creek  flows  a  short  distance  above  the  defend- 
ant's road.  His  dwelling  house,  outbuildings  and  garden 
are  in  the  valley,  or  draw,  near  the  creek  and  about  280 
feet  above  the  road,  at  which  place  the  valley,  or  draw,  is 
about  150  feet  wide.  Between  the  railroad  track  and  the 
plaintiff's  dwelling  is  a  county  road,  with  a  culvert  four 
feet  square,  for  the  passage  of  water.  When  the  defend- 
ant's railway  was  first  built,  the  draw  or  gorge  through 
which  Hale  Creek  flows  was  spanned  by  a  trestle  135  feet 
long  and  20  feet  high,  but  in  1901  a  fill  of  earth,  having 
an  iron  pipe  three  feet  in  diameter  at  the  bottom  for  the 
passage  of  the  water  of  Hale  Creek,  was  substituted  for 
the  trestle.  On  the  6th  of  July,  1904,  a  severe  and  sudden 
thunder  and  rain  storm  occurred  up  the  creek  above  the 
plaintiff's  house,  and  a  large  quantity  of  rain  fell  in  the 
drainage  area,  which,  finding  its  way  into  the  stream, 
caused  it  to  overflow  its  banks,  and,  as  the  water  was 
unable  to  pass  through  the  drain  pipe  in  the  fill  on  de- 
fendant's road,  it  flowed  back  upon  and  overflowed  plain- 


352  Price  v.  Oregon  Railroad  Co.  [47  Or. 

tiff's  garden  and  lawn  and  ran  into  bis  house,  injuring  and 
damaging  his  carpets,  furniture,  etc.  Being  unable  to 
obtain  a  satisfactory  settlement  of  his  damages  with  the 
railway  company,  he  brought  this  action. 

The  complaint  avers  that  the  defendant  carelessly  and 
negligently  failed  to  put  in  a  sufficient  drain  or  passage  for 
the  water  under  the  fill,  and  thereby  caused  it  to  flow  back 
and  overflow  his  premises,  injuring  his  dwelling  house 
and  the  furniture  therein,  his  garden,  lawn  and  out- 
buildings, to  his  damage  in  the  sum  of  $2,000,  the  items 
of  which  are  specifically  set  out.  The  answer  admits  the 
existence  and  location «of  Hale  Creek,  but  alleges  that  it  is 
dry  the  entire  year,  except  during  the  freshet  season,  when 
it  usually  flows  a  small  quantity  of  water ;  that  the  culvert 
in  the  county  road  and  the  iron  pipe  put  in  by  defendant 
have  always  been  adequate  to  accommodate  the  flow  of  the 
stream,  and  are  entirely  suflicient  for  that  purpose  under 
any  and  all  circumstances  which  might  reasonably  have 
been  expected  or  anticipated  ;  that  the  storm  of  July  6, 
1904,  which  caused  the  damage  to  plaintiff,  was  unprece- 
dented and  extraordinary  in  fury  and  violence,  amounting 
to  a  cloud-burst,  so  that  for  more  than  two  miles  up  the 
stream  above  his  house  the  water  became  a  torrent  of 
great  volume  and  velocity,  flowing  through  the  valley  or 
draw  in  a  column  two  feet  in  height  and  down  on  to  the 
lands  of  plaintiff  without  regard  to  the  banks  of  the  stream, 
carrying  great  quantities  of  earth  and  debris  before  it, 
thus  causing  the  greatest  and  most  severe  flood  ever  known 
in  that  vicinity  ;  that  it  thus  swept  over  the  lands  of  plain- 
tiff, and  whatever  damage  occurred  to  him  was  caused 
solely  and  exclusively  by  such  cloud-burst  and  unprece- 
dented flood.  The  reply  denies  the  new  matter  in  the 
answer,  and  affirmatively  alleges  that  the  culvert  in  the 
county  road  did  not  affect  one  way  or  the  other  plaintiff's 
property ;  that  the  water  would  have  flowed  over  the  county 


Jan.  1906.]     Price  v.  Orbgon  Railroad  Co.  353 

road  regardless  of  the  culvert,  and  would  not  have  backed 
up  and  injured  him  by  reason  of  such  road;  that  the 
storm  referred  to  was  a  severe  electrical  storm,  such  as  is 
liable  to  occur  in  the  section  of  the  country  where  Hale 
Creek  has  its  source,  and  was  no  greater  than  has  occurred 
there  within  the  memory  of  persons  now  living  in  that 
vicinity,  but  was  of  a  kind  and  character  against  which 
the  defendant  should  have  provided  when  it  assumed  to 
restrict  or  interfere  with  the  natural  flow  of  the  stream. 
Upon  the  issues  thus  joined  the  cause  was  tried  before  a 
jury,  resulting  in  a  verdict  and  judgment  in  favor  of  the 
plaintiff,  and  defendant  appeals,  assigning  error  in  the 
admission  of  testimony  and  the  giving  and  refusal  of  cer- 
tain instructions.  Reversed. 

For  appellant  there  was  a  brief  over  the  names  of  W.  W. 
Cotton,  Arthur  Champlin  Spencer,  and  Carter  &  Raley,  with 
an  oral  argument  by  Mr.  Spencer. 

For  respondent  there  was  a  brief  over  the  names  of 
JSailey  &  Lowell  and  George  A.  Peebles,  with  an  oral  argu- 
ment by  Mr,  Thomas  G.  Hailey. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

The  plaintiff,  as  a  witness  iu  his  own  behalf,  testified, 
among  other  things,  that  he  had  lived  on  Hale  Creek  and 
in  the  house  damaged  by  the  flood  about  35  years ;  that 
the  stream  dried  up  about  the  4th  of  July  each  year,  and 
remained  dry  until  the  winter  rains,  except  during  storms 
in  the  summer  time;  that  the  country  it  drained  for  four 
or  five  miles  up  the  stream  was  steep  and  rugged,  and  was 
visible  from  the  railroad  track;  that  during  the  time  he 
had  lived  on  the  stream  he  had  seen  a  great  many  storms 
and  high  waters ;  that  he  had  seen  the  stream  in  harvest 
dry,  and  within  two  hours  after  a  storm  came  up  the  water 
would  be  knee  deep  from  his  yard  fence  to  the  hills  on  the 

17  Or. 28 


354  Price  v,  Oregon  Railroad  Co.  [47  Or. 

north,  but  did  not  run  around  his  house;  that  he  had 
known  a  great  many  storms  of  a  similar  character;  that 
he  had  seen  more  water  come  down  the  stream  than  in 
July,  1904,  but  it  did  not  damage  him  ;  that  in  the  winter 
time  the  water  sometimes  ran  out  and  into  his  garden  and 
cut  out  the  soil ;  that  he  was  at  home  at  the  time  of  the 
flood  in  July,  1904;  that  the  water  was  able  to  pass  down 
the  stream  and  did  not  reach  his  house  and  outbuildings 
until  it  backed  up  from  the  railroad  fill ;  that  the  water 
can  and  did  pass  over  the  county  road  below  the  culvert 
before  becoming  high  enough  to  fill  the  culvert;  that  he 
had  often  seen  it  do  so. 

He  was  also  permitted  to  testify,  over  defendant's  objec- 
tion, that  before  the  till  was  made  by  the  defendant  com- 
pany a  man,  who  seemed  to  be  spokesman  for  a  party  who 
had  surveying  instruments  and  were  making  measure- 
ments at  the  place  where  the  fill  was  subsequently  made, 
inquired  of  him  as  to  his  knowledge  concerning  the  quan- 
tity of  water  that  came  down  the  gorge  or  ravine  at  the 
railway  crossing,  and  he  told  him  that  he  had  seen  it  hip 
deep  over  a  space  50  or  60  feet  wide  at  that  place,  and  that 
he  thought  it  would  take  a  "pretty  big  culvert,  not  less 
than  10  feet'^;  that  he  did  not  know  whether  the  party  was 
an  official  of  the  road  or  not;  that  he  afterward  had  a  con- 
versation with  parties  who  were  putting  in  the  fill  and 
whom  he  supposed  were  working  for  the  railroad  company, 
and  told  them  that  he  did  not  think  the  drain  pipe  used 
was  sufficient  to  carry  the  water.  Based  upon  this  testi- 
mony, the  court  instructed  the  jury  that  if  plaintiff  in- 
formed the  employees  of  the  defendant  before  the  fill  was 
made  that  the  water  had  at  times  run  hip  deep  through 
the  gulch,  or  advised  its  agents  that  the  pipe  or  conduit 
was  not  large  enough,  before  it  was  put  in  place,  they 
might  consider  such  matters  in  determining  whether  the 
defendant  used  ordinary  care  in  fixing  the  size  of  the  drain 


Jan.  1906.]     Price  v.  Oregon  Railroad  Co.  355 

under  the  fill,  and  whether  it  should  reasonably  have  an- 
ticipated such  a  flood  as  came  in  July,  1904. 

1.  The  admission  of  this  testimony,  emphasized  as  it 
was  by  the  instructions  based  thereon,  was,  in  our  opinion, 
error.  There  was  no  proof  that  the  parties  with  whom  the 
plaintiff  talked  were  officers  or  agents  of  the  defendant,  or 
had  authority  to  represent  it  in  the  matter  of  planning  or 
constructing  the  fill,  or  even  that  Ihey  were  its  employees, 
unless  that  is  to  be  inferred  from  the  fact  that  they  were 
at  the  time  apparently  at  work  for  it.  They  may  have  been, 
for  all  the  record  shows,  laborers,  having  nothing  what- 
ever to  do  with  the  question  of  determining  the  size  of  the 
drain  or  the  nature  or  character  of  the  fill. 

2.  It  was  the  duty  of  the  defendant  company  in  con- 
structing the  fill  to  make  sufficient  and  proper  provision 
for  the  passage  of  the  waters  of  the  stream,  and  to  that 
end  it  was  required  to  bring  to  the  planning  and  execution 
of  the  work  the  skill  and  knowledge  which  are  ordinarily 
practiced  in  such  matters,  and  to  construct  it  so  as  to  allow 
for  the  passage  of  such  water  as  was  known  to  flow  in  the 
stream  in  times  of  usual  freshets,  and  such  as  might  have 
reasonably  been  expected  to  in  floods  which  are  not  usual, 
but  which  experience  shows  might  occur  at  any  time: 
2  Farnham,  Waters,  §  569;  13  Am.  &  Eng.  Enc.  Law 
(2  ed.),  690 ;  Jones  v.  Seaboard  Air  Line  R.  Co.  67  S.  C.  181 
(45  S.  E.  188). 

3.  If  it  failed  to  use  such  skill,  it  is  liable  to  those  in- 
jured by  its  negligence,  but  in  determining  whether  it  had 
used  reasonable  care  and  prudence  in  the  construction  of 
the  work  regard  must  be  had  to  the  size  and  nature  of  the 
stream,  the  character  and  features  of  the  country  drained 
by  it,  its  liability  to  overflows,  and  their  probable  extent 
and  effect,  and  not  to  a  single  item  of  testimony.  The 
true  test,  considering  all  the  circumstances,  is,  ought  a 
competent  and  skillful  engineer  reasonably  to  have  antici- 


356  Price  v.  Orboon  Railroad  Co.  [47  Or. 

pated  such  a  flood  as  caused  the  damage  to  the  plaintiff  and 
to  have  made  provision  therefor?  The  evidence  objected 
to  might,  perhaps,  have  been  competent  if  the  persons 
with  whom  the  plaintiff  talked  were  in  fact  the  agents  or 
employees  of  the  company,  acting  for  and  representing  it 
in  planning  or  constructing  the  fill,  as  tending  to  show  the 
knowledge  which  it  had  of  the  character  of  the  stream  and 
the  quantity  of  water  carried  V)y  it,  but  the  effect  of  the 
testimony  under  the  instructions  of  the  court  was  prac- 
tically to  make  it  determinative  of  the  question  whether 
the  defendant  exercised  ordinary  care  and  prudence  in 
using  the  drain  or  outlet  under  the  embankment.  It  was 
singled  out  from  all  the  rest  of  the  testimony,  and  the  jury 
advised  that  if  the  plaintiff  had  informed  the  employees 
of  the  defendant  (regardless  of  whom  such  employees  were) 
that  at  times  the  water  was  hip  deep  at  the  place  where 
the  fill  now  is,  or  that  he  had  told  them  that  the  pipe  was 
not,  in  his  opinion,  large  enough  to  pass  the  water,  they 
might  consider  such  testimony  in  determining  whether 
the  defendant  used  ordinary  care  in  the  construction  of 
the  drain,  and  whether  it  ought  to  have  reasonably  antici- 
pated such  flood  as  caused  the  damage.  The  practical 
effect  of  this  was  not  only  to  give  special  importance  to 
the  testimony,  but  that,  if  plaintiff  told  an  employee  or 
enployees  of  the  defendant  that  the  water  was  hip  deep  in 
the  stream  at  times  and  the  conduit  as  put  in  was  not  suf- 
ficient to  carry  or  pass  that  quantity  of  water,  it  was  in- 
sufhcient,  and  the  defendant  was  negligent  in  using  it. 

4.  The  court  also  instructed  the  jury  that,  in  deciding 
whether  the  defendant  used  ordinary  care  in  determining 
the  size  of  the  culvert  or  drain  placed  by  it  under  the  fill, 
they  might  consider,  along  with  other  matters,  the  size  of 
the  culvert  across  the  county  road  between  the  fill  and  the 
residence  of  the  plaintiff.  It  is  shown  by  the  evidence, 
alleged  in  the  pleadings,  and  admitted  by  all,  that  neither 


Jan.  1906.]     Price  v,  Oregon  Railroad  Co.  357 

the  embankment  of  the  county  road  nor  the  culvert  therein 
in  any  way  affected  or  contributed  to  the  injury  to  plain- 
tiff. The  road  embankment  was  not  high  enough  to  cause 
the  water  to  flow  back  and  overflow  plaintiff's  land,  and 
but  for  the  fill  made  by  the  defendant  it  would  have  passed 
on  down  the  stream.  Under  these  circumstances  we  can 
conceive  no  purpose  for  the  instruction,  unless  the  court 
intended  the  jury  to  use  the  size  of  the  culvert  in  the 
county  road  as  a  standard  by  which  to  determine  the  sufii- 
ciency  of  the  one  used  by  the  defendant.  They  were,  in 
effect,  told  that  they  might  consider  as  evidence  of  what 
would  be  a  sufficient  culvert  the  one  in  the  county  road, 
without  any  proof  whatever  that  it  was  of  the  proper  size 
or  was  put  in  by  a  person  familiar  with  the  history  of  the 
stream  or  the  amount  of  water  necessary  to  be  accommo- 
dated. So  far  as  the  record  discloses,  its  size  and  height 
may  have  been  regulated  by  a  mere  matter  of  convenience 
in  constructing  the  road,  and  not  in  any  way  by  the  quan- 
tity of  water  to  be  accommodated,  and  therefore  permitting 
the  jury  to  use  it  as  a  standard  of  comparison  was  error. 
5.  These  considerations  lead  to  a  reversal  of  the  judg- 
ment, but,  in  view  of  another  trial,  it  is  deemed  proper  to 
consider  the  contention  of  the  defendant  that  the  water 
which  damaged  the  plaintiff  was  surface  water,  and  for 
that  reason  it  is  not  liable  for  causing  it  to  flow  back  and 
overflow  his  premises.  There  is  a  sharp  conflict  in  the  ad- 
judicated cases  in  this  country  as  to  the  law  of  surface 
water  and  the  rights  and  liabilities  of  conterminous  pro- 
prietors of  land  in  respect  to  the  obstruction  and  flow 
thereof.  The  courts  of  many  of  the  States  have  followed 
the  common  law,  and  held  that  mere  surface  water,  or  such 
as  accumulates  by  rain  or  the  melting  of  snow,  is  to  be  re- 
garded as  a  common  enemy,  and  the  proprietor  of  the  lower 
tenement  or  estate  may,  if  he  chooses,  obstruct  and  hinder 
the  flow  of  such  water,  and  in  doing  so  may  turn  it  back 


358  Price  v.  Oregon  Railroad  Co.  [47  Or. 

upon  and  over  the  lands  of  others  without  liability  for 
injury  ensuing  from  such  obstruction  or  diversion.  Other 
courts,  following  the  doctrine  of  the  civil  law,  have  held  that 
the  owner  of  the  upper  or  dominant  estate  has  a  natural 
easement  or  servitude  in  the  lower,  or  servient,  one  to  have 
all  waters  accumulating  on  his  land  to  flow  upon  and  across 
that  of  the  lower  proprietor  as  it  would  naturally  do,  and 
that  the  flow  of  such  water  cannot  be  interfered  with  or  ob- 
structed by  the  servient  owner  to  the  detriment  or  injury 
of  the  upper  proprietor :  Walker  v.  Southern  Pac,  Co,,  165 
U.  S.  593  (17  Sup.  Ct.  421,  41  L.  Ed.  837). 

The  question  has  never  been  decided  in  this  State.  The 
court  expressly  disclaimed  doing  so  in  West  v.  Taylor,  16 
Or.  165  (13  Pac.  665).  Nor  do  we  deem  its  consideration 
necessary  at  this  time.  The  waters  which  caused  the  injury 
to  the  plaintiff  were  not  surface  waters,  but  the  flood  waters 
of  a  natural  stream.  **Surface  water  is  that  which  is  dif- 
fused over  the  surface  of  the  ground,  derived  from  falling 
rains  or  melting  snows,  and  continues  to  be  such  until  it 
reaches  some  well-defined  channel  in  which  it  is  accus- 
tomed to,  and  does,  flow  with  other  waters,  whether  derived 
from  the  surface  or  springs ;  and  it  then  becomes  the  run- 
ning water  of  a  stream,  and  ctases  to  be  surface  water": 
Crawford  v.  Rambo,  44  Ohio  St.  282  (7  N.  E.  429).  When 
such  water  has  found  its  way  into  a  natural  stream  or  water 
course,  and  mingles  with  the  waters  thereof,  it  becomes  as 
much  a  part  of  the  stream  as  any  other  particle  of  water 
in  it,  and  ceases  to  posses^  any  of  the  qualities  of  surface 
water.  And  the  mere  fact  that  for  the  time  being  the  chan- 
nel of  the  stream  is  not  sufficient  to  carry  all  the  water  does 
not  change  the  rule,  so  long  as 'the  water  forms  one  con- 
tinuous body  and  flows  in  the  course  of  the  ordinary  chan- 
nel of  the  stream.  As  said  in  Crawford  v.  Rambo,  44  Ohio 
St.  282  (7  N.  E.  429):  *at  is  difficult  to  see  upon  what  prin- 
ciple  the  flood  waters  of  a  river  can  be  likened  to  surface 


Jan.  1906.]     Price  v,  Oregon  Railroad  Co.  359 

Tvater.  When  it  is  said  that  a  river  is  out  of  its  banks,  no 
more  is  implied  than  that  its  volume  then  exceeds  what  it 
ordinarily  is.  Whether  high  or  low  the  entire  volume  at 
any  one  time  constitutes  the  water  of  the  river  at  such 
time;  and  the  land  over  which  its  current  flows  must  be 
regarded  as  its  channel,  so  that,  when  swollen  by  rains  and 
melting  snows  it  extends  and  flows  over  the  bottoms  along 
its  course,  that  is  its  flood  channel,  as  when,  by  droughts, 
it  is  reduced  to  its  minimum,  it  is  then  in  its  low-water 
channel."  If  in  times  of  flood  any  part  of  the  waters  of  a 
stream  become  separated  or  disassociated  from  the  main 
bodj  and  spreads  out  over  the  adjoining  country  without 
following  any  definite  water  course  or  channel,  it  ceases  to 
be  a  part  of  the  stream  and  may  be  regarded  as  surface 
water:  New  York,  C.  &  St.  L.  R,  Co.  v.  Speelman,  12  Ind. 
App.  372  (40  N.  E.  541);  New  York,  C.  &  St.  L.  R.  Co.  v. 
HamUt  Hay  Co.,  149  Ind.  344  (47  N.  E.  1060, 49  N.  E.  269). 
But,  so  long  as  the  waters  form  one  continuous  body,  flow- 
ing in  the  ordinary  course  of  the  stream  and  reluming  to 
the  natural  channel  as  they  recede,  they  are,  properly 
speaking,  waters  of  a  water  course,  although  not  confined 
to  the  banks  of  the  stream. 

The  question  has  been  ably  and  exhaustively  consid- 
ered, in  his  usual  clear  and  masterful  manner,  by  Mr. 
Justice  Lumpkin,  in  O^Connell  v.  East  Tenn.  Ry.  Co.,  87  Ga. 
246  (13  S.  E.  489,  13  L.  R.  A.  394,  27  Am.  St.  Rep.  246), 
and  his  conclusion  is  that  whether  the  flood  waters  of  a 
stream  are  to  be  deemed  as  part  of  the  stream  or  mere 
surface  water  depends  upon  the  configuration  of  the  coun- 
try and  the  relative  position  of  the  water  after  it  has  gone 
beyond  the  usual  channel.  "If  the  flood  water,''  he  says, 
**becomes  severed  from  the  main  current,  or  leaves  the 
stream  never  to  return,  and  spreads  out  over  the  lower 
ground,  it  has  become  surface  water.  But,  if  it  forms  a 
continuous  body  with  the  water  flowing  in  the  ordinary 


360  Price  v.  Oregon  Railroad  Co.  [47  Or. 

channel,  or  if  it  departs  from  such  channel  animo  rever- 
tendi,  presently  to  return,  as  by  the  recession  of  the  waters, 
it  is  to  be  regarded  as  still  a  part  of  the  river.  The  iden- 
tity of  a  river  does  not  depend  upon  the  volume  of  water 
which  may  happen  to  flow  down  its  course  at  any  partic- 
ular season.  The  authorities  hold  that  a  stream  may  be 
wholly  dry  at  times  without  losing  the  character  of  a  water 
course.  So,  on  the  other  hand,  it  may  have  a  *flood  chan- 
nel'  to  retain  the  surplus  waters  until  they  can  be  dis- 
charged by  the  natural  flow."  And  this  is  the  doctrine  of 
the  authorities  generally:  30  Am.  &  Eng.  Enc.  Law  (2  ed.), 
324;  3  Farnham,  Waters,  §  879;  Jones  v.  Seaboard  Air 
Line  R.  Co,,  67  S.  C.  181  (45  S.  E.  188) ;  Byrne  v.  Min- 
neapolis &  St.  L.  Ry.  Co.,  38  Minn.  212  (36  N.  W.  339,  8 
Am.  St.  Rep.  668);  Chicago,  B.  &  Q.  R.  Co.  v.  Emmert,  53 
Neb.  237  (73  N.  W.  540,  68  Am.  St.  Rep.  602);  New  York, 
C.  &  St.  L.  R.  Co.  V.  Hamlet  Hay  Co.,  149  Ind.  344  (47  N.  E. 
1060,  49  N.  E.  269);  New  York,  C.  &  St.  L.  R.  Co.  v.  Speel- 
man,  12  Ind.  App.  372  (40  N.  E.  541 ).  There  is  no  conten- 
tion in  this  case  that  the  waters  which  caused  the  injury 
to, the  plaintiff  were  not  flowing  in  one  continuous  body, 
following  the  course  of  the  ordinary  channel  of  Hale  Creek, 
and  they  were  therefore  to  be  regarded  as  a  part  of  the 
stream,  and  not  as  surface  waters. 

6.  It  is  contended  on  behalf  of  the  defendant  that  the 
damage  to  plaintiff  was  due  to  an  extraordinary  and  un- 
precedented storm  which  it  could  not  reasonably  have 
been  expected  to  anticipate  when  constructing  its  road. 
Upon  that  matter  there  was  conflicting  evidence,  and  the 
question  was  for  the  jury,  and  not  the  court.  In  the  con- 
struction of  its  road  the  defendant  was  required  to  use 
reasonable  care  and  skill  to  avoid  unnecessary  injury  or 
damage  to  the  plaintiff  by  reason  of  freshets  in  the  stream, 
and  also  from  floods  which  experience  teaches  may  be  ex- 
pected to  occur  at  any  time,  but  it  was  not  required  to 


Aug.  1905.]   Moss  Mer.  Co.  v.  First  Nat.  Bank. 


361 


anticipate  and  use  precautions  to  prevent  injury  from 
floods  caused  by  extraordinary  and  unexpected  storms. 
Whether  the  storm  in  question  was  of  the  character  indi- 
cated was  a  matter  for  the  jury. 

There  are  some  other  assignments  of  error  in  the  rec- 
ord, but,  as  they  need  not  arise  on  a  new  trial,  it  is  not 
necessary  to  consider  them  at  this  time.  Judgment  re- 
versed, and  new  trial  ordered.  Reversed. 

Mr.  Justice  Hailey,  having  been  of  counsel,  took  no 
part  in  the  consideration  of  this  case. 


Argued  6  July,  decided  7  August,  1905. 
MOSS  MEROANTIIiE  00.  v.  FIBChr  NAT.  BANK. 

82  Pac.  8 ;  2  L.  R.  A.  (N.  8.)  657. 

Principal  and  Agent— Payment  Under  Superior  Title.* 

1.  An  agent  or  attorney  having  antborlty  to  collect  and  remit  money  Is  not 
estopped  by  bis  agency  from  showing  that  the  money  did  not  belong  to  the  prin- 
cipal and  that  be  has  paid  It  to  a  claimant  under  a  paramount  title. 

Restraining  Actions  at  La w— Adbqitacy  of  Legal  Remedy. 

2.  Whether  money  collected  by  an  attorney  or  agent  on  a  Judgment,  and  paid 
over  to  another,  belonged  to  the  latter,  or  to  the  principal,  Is  an  Issue  determin- 
able In  a  law  action  that  may  be  brought  by  the  principal  against  the  agent  to 
recover  the  money;  and  the  one  to  whom  the  money  was  paid  cannot  sue  In 
equity  to  enjoin  such  a  law  action,  and  procure  a  determination  of  the  Issue  In 
that  manner. 

From  Malheur:  George  E.  Davis,  Judge. 

Statement  by  Mr.  Justice  Bean. 

This  is  a  suit  by  the  Moss  Mercantile  Co.  against  the 
First  National  Bank  of  Payette,  Idaho,  to  restrain  the 
prosecution  of  an  action  at  law  brought  by  the  defendant 
bank  against  William  Miller  to  recover  money  collected 
by  him  on  a  judgment  in  favor  of  Helmick  and  against 
Porter.  The  facts,  as  they  appear  from  the  record,  are 
substantially  that  in  April,  1903,  Helmick  recovered  a 


*  Note.— See  a  large  collection  of  authorities  on  this  subject  In  a  note  to  this 
Be  In  2  L.  R.  A.  (N.  B.)  657.-  Rkpobtkb. 


362  Moss  Mkr.  Co.  v.  First  Nat.  Bank.         [47  Or. 

judgment  against  Porter  for  12,930.22.  Miller  was  the 
attorney  for  Helmick  in  such  action,  and  knew  that  plain- 
tiff had  or  claimed  an  interest  in  the  judgment  and  the 
fund  to  be  derived  therefrom.  On  the  27th  of  the  month 
the  judgment  was  assigned  by  Helmick  to  the  defendant 
bank,  and  Miller  was  notified  by  it  of  such  {^ssignment, 
and  directed  to  collect  the  money  on  the  judgment  and 
make  remittance,  less  his  fees.  On  June  29  *Miller  col- 
lected the  amount  due,  acknowledging  satisfaction  thereof 
by  signing  the  name  of  Helmick  and  of  the  bank  by  him- 
self as  attorney  ;  but,  while  he  was  preparing  to  remit,  the 
plaintiff  asserted  title  to  the  money  and  demanded  its  pos- 
session, and  Miller,  thinking  the  bank  was  acting  for  the 
plaintiff,  paid  it  over  accordingly.  The  bank  then  brought 
an  action  against  him  to  recover  the  money  so  collected, 
and  the  plaintiff  commenced  this  suit  to  enjoin  the  prose- 
cution of  such  action.  In  its  complaint  it  alleges  that,  at 
the  time  of  the  assignment  of  the  judgment  by  Helmick 
to  the  bank,  he  was  indebted  to  it  about  $4,000,  and  had 
given  it  an  order  on  Porter  for  the  money  due  from  the 
latter ;  that  the  bank  knew  of  such  indebtedness  and  order 
at  the  time  of  the  assignment,  and  such  assignment  was 
made  and  received  without  consideration  and  for  the  ex- 
press purpose  of  cheating  and  defrauding  the  plaintiff  out 
of  the  money  on  such  judgment,  and  the  action  at  law  is 
prosecuted  by  the  bank  for  the  same  purpose;  that  Miller 
was  one  of  the  attorneys  for  Helmick  in  the  action  brought 
by  him  against  Porter,  and  knew  of  the  indebtedness  of 
Helmick  to  the  plaintiff,  and  of  the  order  referred  to,  and 
was  instructed  by  Helmick,  at  the  time  the  judgment  was 
recovered,  to  collect  the  same,  and  pay  the  proceeds,  less 
his  fees,  to  the  plaintiff;  that  he  thereafter  collected  the 
judgment,  and,  believing  that  the  bank,  in  taking  the  as- 
signment, was  acting  only  for  the  plaintiff,  indorsed  satis- 
faction thereof  on  the  record,  and  signed  the  name  of  the 


Aug.  1905.]   Moss  Mer.  Co.  v.  First  Nat.  Bank.  363 

bank  by  himself  as  attorney,  but  without  the  intention  of 
acting  for  the  bank  other  than  for  the  benefit  of  the  plain- 
tiff. A  demurrer  to  the  complaint  for  want  of  equity  was 
overruled,  and  the  defendant  answered,  denying  some  of 
its  allegations,  but  asking  for  no  affirmative  relief.  The 
case  was  tried  on  the  testimony,  and  plaintiff  had  a  decree, 
from  which  the  defendant  appeals.  Reversed. 

For  appellant  there  was  an  oral  argument  by  Mr,  Wil- 
liam Rufua  King,  with  a  brief  over  the  names  of  W,  R, 
King  and  W.  H.  Brooke,  to  this  effect. 

I.  The  injunctive  process  should  be  very  cautiously  used 
to  stay  an  action  at  law  before  judgment,  and  where  the 
defense  can  be  made  at  law  as  well  as  it  can  be  made  in 
equity,  which  is  the  case  here,  the  parties  should  be  left 
to  the  law  remedy :  Sargent  v.  Ohio  &  M.  R,  Co.  1  Handy, 
452;  Chadwell  v.  Jordan,  2  Tenn.  Ch.  636;  Normandin  v. 
Mackey,  38  Minu.  417  (37  N.  W.  954);  Pennoyer  v.  Allen, 
50  Wis.  308  (6  N.  W.  887);  Sheldon  County  v.  Mayers,  81 
Wis.  627  (51  N.  W.  1082);  Commercial  Bank  v.Fire  Ins, 
Co.  ofPhila.  84  Wis.  12  (54  N.  W.  110). 

II.  The  plaintiff  here  does  not  need  and  cannot  demand 
affirmative  relief  in  equity:  Gardner  v.  Buckbee,  3  Cowp.  120 
(15  Am.  Dec.  256);  Doty  v.  Brown,  4  N.  Y.  71  (53  Am.  Dec. 
350);  Warner  v.  Trow,  36  Wis.  195;  Lawrence  v.  Milwaukee, 
45  Wis.  306;  Pennoyer  v.  Allen,  50  Wis.  308  (6  N.  W.  887); 
Sheldon  County  v.  Mayers,  81  Wis.  627  (51  N.  W.  1082); 
Taylor  v.  Matteson,  86  Wis.  120  (56  N.  W.  829);  Wolf  River 
Lam.  Co.  v.  Brown,  88  Wis.  638  (60  N.  W.  997);  Morse  v. 
Marsfiall,97  Mass.  522;  Babcock  v.  Camp,  12  Ohio  St.  11; 
Beloit  V.  Morgan,  74  U.  S.  (7  Wall.)  619  (19  L.  Ed.  205). 

For  respondent  there  was  an  oral  argument  by  Mr.  James 
Heber  Richards,  with  a  brief  over  the  names  of  William 
Miller  and  Richards  &  Haga,  to  this  effect. 


364  Moss  Mer.  Co.  v.  First  Nat.  Bank.         [47  Or. 

Where,  through  fraud,  accident  or  mistake  such  an  ad- 
vantage will  be  gained  in  an  action  at  law  as  will  render 
it  an  instrument  of  injustice,  and  it  is  against  conscience 
to  allow  the  action  to  proceed,  equity  will  interfere  by  in- 
junction :  1  Spelling,  Extr.  Relief,  §  38;  1  High,  Inj.  §  47; 
16  Am.  &  Eng.  Enc.  Law,  365,  367;  Chicago,  M,  &  St.  P.  %. 
Co.  V.  Pulbnan  P.  C.  Co.,  49  Fed.  409;  /Seagfer  v.  Cooley,  44 
Mich.  14  (5  N.  W.  1057);  Oconto  County  v.  Lundquist,  119 
Mich.  264  (77  N.  W.  950);  De  Moss  v.  Economy  F.  &  C.  Co. 
74  Mo.  App.  117;  Farwell  v.  Great  Western  Teleg.  Co.  161 
111.  522  (44  N.  E.  891);  Cantoni  v.  Forster,  12  Misc.  376  (33 
N.  Y.  Supp.  645);  Tyler  v.  Hammersly,  44  Conn.  419  (26 
Am.  Rep.  479);  Catholic  Bishop  v.  Chiniquy,  74  111.  317. 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

It  is  difficult  to  understand  upon  what  theory  plaintiff 
can  maintain  this  suit.  The  right  of  a  court  of  equity  to 
enjoin  an  action  at  law,  either  by  an  original  suit,  or  a  com- 
plaint in  the  nature  of  a  cross-bill,  wheii  the  defense  is 
purely  of  equitable  cognizance,  or  the  complainant  cannot 
have  full  relief  at  law,  is  an  old  and  familiar  head  of  equitjf 
jurisprudence.  The  books  are  full  of  cases  of  that  kind, 
but  usually  the  suit  is  brought  by  the  defendant  in  the  law 
action,  and  not  by  a  stranger  to  the  proceedings,  unless 
the  cause  of  suit  arises  out  of  some  relationship  of  the 
plaintiff  in  such  action  to  the  plaintiff  in  the  suit :  McCuL 
lough  V.  Abescom  Land  Improv.  Co.  (N.  J.),  10  Atl.  606; 
Fisher  v.  Lord,  Fed.  Cas.  No.  4821;  Ferguson  v.  Fisk,  28 
Conn.  501.  In  this  case  the  plaintiff  is  not  a  party  to  the 
action  sought  to  be  enjoined,  and  the  cause  of  suit  does 
not  grow  out  of  any  relationship  or  dealings  between  the 
bank  and  the  plaintiff.  It  is  not  apparent,  therefore,  what 
right  the  plaintiff  has  to  interfere  in  the  law  action  for  the 
purpose  of  making  a  defense,  either  legal  or  equitable,  for 
Miller.    The  nature  and  character  of  the  defense,  if  any, 


Aug.  1905.]   Moss  Mer.  Co.  v.  First  Nat.  Bank.  365 

to  be  made  in  the  law  action,  is  for  Miller  to  determine, 
and  there  is  no  suggestion  that  he  is  not  capable  of  doing 
so.  But  assuming  that  a  stranger  may  bring  a  suit  to 
enjoin  the  prosecution  of  an  action  at  law  against  another 
for  want  of  a  defense  thereto,  such  a  suit  can  only  be  main- 
tained when  the  defense  at  law  is  inadequate:  16  Am.  & 
Eng.  Enc.  Law  (2  ed.),  365.  "Where  a  court  of  law  can  do 
as  full  justice  to  the  parties,"  says  Mr.  Pomeroy,  "and  to 
the  matter  in  dispute,  as  can  be  done  in  equity,  a  court  of 
equity  will  not  stay  proceedings  at  law.  Equity  will  not 
restrain  a  legal  action  or  judgment  where  the  controversy 
would  be  decided  by  the  court  of  equity  upon  a  ground 
equally  available  at  law,  unless  the  party  invoking  the  aid 
of  equity  can  show  some  special  equitable  feature  or  ground 
of  relief ;  and,  in  the  case  assumed,  this  special  feature  or 
ground  must  necessarily  be  something  connected  with  the 
mode  of  trying  and  deciding  the  legal  action,  and  not  with 
the  cause  of  action  or  the  defense  themselves":  4  Pomeroy, 
Equity  (3  ed.),  §  1361. 

1.  Now,  under  the  facts  as  here  claimed  by  the  defend- 
ant. Miller's  relationship  to  it  was  that  of  a  mere  agent  or 
attorney  to  collect  and  remit  the  amount  due  on  the  Hel- 
mick  judgment;  and  while  the  general  rule  is  that  an 
agent  who  receives  money  for  his  principal  is  estopped  to 
deny  the  title,  and  must  return  or  account  for  the  money 
to  him  for  whom  he  received  it,  this  rule  does  not  prevent 
an  agent,  when  sued  by  his  principal,  from  showing  that 
he  has  been  divested  of  the  property  by  a  title  paramount 
to  that  of  his  principal,  or  that  he  has  paid  over  the  money 
or  property  to  one  holding  such  a  title :  1  Clark  &  Skyles, 
Agency,  §  431;  Mechem,  Agency,  §  525;  Peck  v.  Wallace, 
19  Ala.  219;  Peyser  v.  Wilcox,  64  How.  Prac.  525;  Sims  v. 
Brown,  6  Thomp.  &  G.  5;  s.  c,  affirmed  64  N.  Y.  660.  The 
rule  in  such  case  is  practically  the  same  as  that  governing 
the  relation  of  bailor  and  bailee,  and  surrendering  to  a 


366  Flegel  v.  Koss.  [47  Or. 

paramount  title  is  a  good  defense:  Western  Transp.  Co,  v. 
Barber,  56  N.  Y.  544;  Burton  v.  Wilkinson,  18  Vt.  186  (46 
Am.  Dec.  145).  Miller  is  therefore  not  estopped  by  reason 
of  his  relationship  to  the  defendant  bank  to  set  up  and 
prove  in  the  action  brought  by  it  against  him,  if  he  can, 
that  the  money  in  fact  belonged  to  the  plaintiff,  and  that 
he  paid  it  over  on  demand  prior  to  the  commencement  of 
such  action. 

2.  The  point  in  controversy  is  whether  the  money  col- 
lected by  him  belonged  to  the  defendant  or  to  the  plaintiff. 
If  it  was  the  property  of  the  bank,  Miller  is  liable  to  it, 
but  if  it  belonged  to  the  plaintiff,  and  he  paid  it  over  upon 
demand,  such  payment  will  be  a  complete  defense  to  the 
law  action.  These  are  questions  properly  triable  at  law, 
and  according  to  the  procedure  applicable  thereto.  We 
are  of  the  opinion,  therefore,  that  there  is  no  equity  in 
plaintiff*s  proceeding.  The  decree  is  reversed,  and  the 
complaint  dismissed.  Reversed. 


Argued  10  January,  decided  23  January,  1906. 
FliEGEL  V,  KOSS. 

8H  Pac.  847. 

Appeal  — Effect  of  Findings  by  Coukt. 

1.  Under  Section  159,  B.  &  C.  Comp.,  providing  that  in  a  trial  by  the  court 
without  a  Jury  the  flndingR  of  fact  shall  be  deemed  a  verdict,  such  findings  can- 
not be  set  aside  on  appeal  if  there  is  any  evidence  to  support  them. 

Lien  of  Attaching  Ckeditor  — Pleading  LiEVY  in  Good  Faith  and 
Without  Notice  of  Equities. 

2.  Under  Section  302  of  B.  <&  C.  Comp.,  providing  that  from  the  date  of  the 
attachment  until  it  be  discharged  or  the  writ  executed,  the  plaintiff,  as  against 
third  persons,  shall  be  deemed  a  purchaser  in  good  faith  and  for  a  valuable  con- 
sideration of  the  property,  etc.,  an  attaching  creditor,  in  order  to  be  deemed  a 
purchaser  in  good  faith  as  against  the  owner  of  an  outstanding  equity,  must 
allege  and  prove  all  the  facts  necessary  to  establish  that  character  of  his  owners 
ship  asjigainst  the  equity  :  and  a  reply  eonsisting  of  only  a  general  denial  of  the 
claim  of  ownership  made  by  defendants  in  their  answer  is  insufficient  to  bring 
plaintifiT  with'n  the  statute. 

Evidence  Competent  to  Issues. 

'8.  In  attachment,  on  the  Issue  whether  the  attachment  debtor  owned  the 
property  attached  or  had  bought  the  same  ns  agent  only,  not  having  sufficient 
means  with  which  to  purchase  for  himself,  evidence  as  to  his  financial  condition, 
both  on  the  day  of  purchase  and  prior  thereto,  is  admissible. 


Jan.  1906.]  Flegel  v.  Koss.  367 

From  Multnomah:  John  B.  Cleland,  Judge. 

Action  by  A.  F.  Flegel,  as  trustee  in  bankruptcy,  against 
Charles  Koss  &  Bros.  Co.  and  others,  resulting  in  a  judg- 
ment for  defendants,  from  which  plaintiff  appeals.  The 
case  was  submitted  on  briefs,  under  the  proviso  of  liule 
16  :  35  Or.  587,  600.  Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  Austin 
F.  Flegel,  in  pro.  per.,  and  Nathaniel  Hart  Bloomfield. 

For  respondents  there  was  a  brief  over  the  name  of . 
Dolphj  Mallory,  Simon  &  Gearin, 

Mr.  Justice  Hailey  delivered  the  opinion  of  the  court. 

This  is  an  action  upon  an  undertaking  given  by  the  re- 
spondents for  the  redelivery  of  certain  hops,  attached  as 
the  property  of  one  Phil  Neis  in  an  actiun  against  him 
brought  by  one  Estelle  Mayer,  in  which  action  the  appel- 
lant herein  was  substituted  as  plaintiff.  The  respondents 
claimed  to  own  the  property  attached,  and  from  a  judg- 
ment in  their  favor  this  appeal  is  taken. 

On  January  30,  1902,  Estelle  Mayer  commenced  an  ac- 
tion in  the  circuit  court  of  Multnomah  County  against  Phil 
Neis  to  recover  upon  a  promissory  note,  and  filed  her  affi- 
davit and  undertaking  for  an  attachment,  and  caused  a 
writ  of  attachment  to  be  issued,  under  which  the  sheriff  of 
that  county  attached  two  warehouse  receipts,  representing 
179  bales  of  hops,  as  the  property  of  the  defendant  Neis. 
The  respondents,  Chas.  Koss  &  Bros.  Co.  and  Baumbach, 
Reichell  &  Co.,  both  eastern  corporations  dealing  in  hops, 
claiming  to  be  the  owners  of  the  hops  attached,  gave  to  the 
sheriff  an  undertaking  for  redelivery  thereof,  with  the 
American  Surety  Co.  as  surety  thereon.  The  warehouse 
receipts  and  hops  were  then  delivered  to  the  respondents. 
In  March  following  the  defendant  Phil  Neis  was  declared 
a  bankrupt,  and  the  appellant  herein,  A.  F.  Flegel,  was 
elected  his  trustee  in  bankruptcy,  and    by  order  of  the 


368  Flbgel  v.  Koss.  .  [47  Or. 

bankruptcy  court  was  substituted  as  plaintiff  in  the  case 
of  Estelle  Mayer  against  Neis,  after  which  he  obtained 
judgment  against  Neis  for  the  amount  sued  for.  On  this 
judgment  an  execution  was  issued  to  the  sheriff  of  Mult- 
nomah County,  who  made  return  thereon  that  the  hops 
attached  had  been  delivered  to  the  respondents  upon 
their  delivery  to  him  of  the  undertaking  for  redelivery, 
which  he  attached  to  his  return.  The.  American  Surety 
Co.  being  the  only  resident  signer  of  such  undertaking, 
demand  was  made  upon  it  for  redelivery  of  the  hops.  Upon 
refusal  to  deliver  them  plaintiff,  as  trustee  in  bankruptcy 
of  Neis  and  assignee  of  Estelle  Mayer,  instituted  this  action 
upon  the  undertaking  for  redelivery.  The  respondents 
filed  their  answer,  denying  ownership  of  the  hops  by  Neis, 
and  alleging  ownership  in  themselves,  to  which  answer  a 
reply  was  filed  containing  a  general  denial  only.  A  jury 
trial  was  waived,  and  the  cause  tried  by  the  court,  whose 
findings  of  fact  and  conclusions  of  law  were  filed  and  judg- 
ment entered  thereon  in  favor  of  the  respondents. 

The  real  issue  in  this  case  was  as  to  who  owned  the  hops 
at  the  time  they  were  attached.  The  record  shows  that  on 
January  30, 1902,  and  for  several  years  prior  thereto,  Phil 
Neis,  under  the  trade  name  of  Phil  Neis  &  Co.,  had  been 
acting  as  agent  for  the  respondents,  Chas.  Koss  &  Bros. 
Co.  and  Baumbach,  Reichell  &  Co.,  in  buying  hops,  and 
also  purchased  hops  on  commission  for  other  persons,  for 
which  they  paid  him  a  commission  of  one  half  cent  a  pound 
for  all  hops  bought.  On  January  30,  1902,  Neis  bought  of 
Balfour,  Guthrie  &  Co.  179  bales  of  hops  for  «3,973.68,  and 
gave  in  payment  therefor  his  check,  signed  **Phil  Neis  & 
Co,"  for  that  amount,  and  the  agent  of  Balfour,  Guthrie 
&  Co.  indorsed  upon  the  two  warehouse  receipts  represent- 
ing this  amount  of  hops,  the  following  words:  "January 
30,  1902.  Deliver  the  within  hops  to  Phil  Neis  &  Co. 
Balfour,  Guthrie  &  Co."    The  delivery  of  this  check  to 


Jan.  1906.]  Flegel  v.  Koss.  369 

Balfour,  Guthrie  &  Co.  was  made  by  Neis'  clerk  in  the  office 
of  Balfour,  Guthrie  &  Co.,  and  the  warehouse  receipts  were 
handed  out  by  the  agent,  but  before  Neis'  clerk  could  get 
possession  of  them  they  were  snatched  up  by  a  deputy 
sheriff  and  taken  into  his  possession  under  the  writ  of  at- 
tachment in  the  case  of  Mayer  against  Neis,  and  never  were 
delivered  to  Neis  or  his  clerk.  The  check  given  by  Neis 
in  payment  for  these  hops  was  drawn  upon  a  bank  in  Port- 
land where  he  did  business  under  his  trade-name,  and  in 
which  bank  he  had  about  $4,000  to  his  credit  at  the  time 
the  check  was  drawn,  $1,662.50  of  this  amount  being  pro- 
ceeds of  a  draft  drawn  by  him  that  day  upon  the  respond- 
ants  Chas.  Koss  &  Bros.  Co.,  and  the  remainder  moneys 
obtained  by  him  upon  drafts  drawn  upon  eastern  buyers, 
other  than  respondent,  for  whom  he  was  also  agent. 

The  appellant  claims  that  the  purchase  of  these  hops 
by  Neis  and  payment  therefor  by  his  check,  drawn  upon 
his  own  bank  account,  together  with  the  indorsement  of 
the  warehouse  receipts  to  him,  made  Neis  the  owner  of 
the  receipts  and  the  hops ;  and,*  further,  that,  if  he  was 
not  the  owner  of  all  the  hops,  he  was  the  owner  of  all 
except  the  70  bales  purchased  by  him  with  the  $1,662.50 
received  upon  the  draft  from  Chas.  Koss  &  Bros.  Co.  on 
the  day  of  the  purchase  of  the  hops,  for  the  reason  that  the 
purchase  price  for  the  remaining  portion  of  the  hops  was 
paid  out  of  funds  standing  in  the  name  of  Neis  received 
from  other  sources.  On  the  other  hand,  the  respond- 
ents claim  that  Neis  never  ownefl  the  hops,  but,  acting  as 
agent,  had  bought  them  for  the  respondents,  Chas.  Koss 
&  Bros.  Co.  and  Baumbach,  Reichell  &  Co. — 136  bales  for 
the  former  and  43  bales  for  the  latter.  There  is  evidence 
that  during  the  year  1901  each  of  these  respondents  last 
named  sent  money  to  Neis  with  which  to  buy  hops,  and 
that  he  erroneously  represented  to  them  that  he  had  bought 

47  Or. 21 


370  Flegbl  v.  Koss.  [47  Or. 

certain  amounts  of  hops  for  each  and  had  them  in  storage, 
while  in  fact  he  was  short  66  bales  to  Koss  &  Bros.  Co. 
and  43  bales  to  Baumbach,  Reichell  &  Co.  Shortly  priorto 
the  buying  of  these  179  bales  from  Balfour,  Guthrie  &  Co. 
he  notified  Koss  &  Bros.  Co.  that  he  could  buy  70  bales 
for  them  and  received  authority  to  do  so,  and  thereupon 
drew  upon  them  for  the  price  of  70  bales,  $1,662.50,  and 
bought  the  179  bales  from  Balfour,  Guthrie  &  Co.,  intend- 
ing thereby  to  cover  his  shortage  with  these  firms,  the 
moneys  for  which  he  had  received  long  before.  The  lower 
court  found  that  in  purchasing  these  hops  Neis  was  acting 
as  agent  for  respondents,  and  purchased  for  them,  and  not 
for  himself,  and  that  he  did  not  own  the  hops  at  the  time 
of  the  attachment. 

1.  The  errors  complained  of  relate  chiefly  to  the  find- 
ings of  fact  made  by  the  court,  and  attempt  to  question 
the  sufficiency  of  the  evidence  upon  which  they  were 
based.  Under  our  statute,  in  a  trial  by  the  court  with- 
out a  jury,  the  findings  of  the  court  on  the  facts  shall  be 
deemed  a  verdict:  B.  &  C.  Comp.  §  159.  In  construing 
this  section,  this  court  has  repeatedly  held  that  such  find- 
ings cannot  be  set  aside  on  appeal  if  there  is  any  evi- 
dence to  support  them:  Williams  v.  Gallick^  11  Or.  337, 
341  (3  Pac.  469);  Bartel  v.  Mathiaa,  19  Or.  482  (24  Pac. 
918);  Lovejoy  v.  Chapman^  23  Or.  571  (32  Pac.  687);  Bruce 
V.  Phcenix  Ins.  Co.,  24  Or.  486-492  (34  Pac.  16);  Liebe  v. 
Nicolai,  30  Or.  364-367  (48  Pac.  172);  Astoria  R.  Co,  v. 
Kern,  44  Or.  538  (76  Pftc.  14).  It  is  therefore  sufficient 
answer  to  the  appellant's  contention  on  this  point  to  say 
there  is  evidence  in  the  record  tending  to  support  the 
findings  made  by  the  lower  court  on  the  point  complained 
of  by  the  appellant,  and  it  is  therefore  not  for  this  court 
to  inquire  into  the  sufficiency  of  such  evidence. 

2.  Appellant  further  claims  that,  although  Neis  might 
not  have  been  the  real  owner  of  the  property  attached, 


Jan.  1906.]  Flegbl  v.  Koss.  371 

he  was,  by  reason  of  the  warehouse  receipts  having  been 
indorsed  to  him,  and  having  paid  for  the  hops  with  his 
personal  check,  the  apparent  owner,  and  under  Section 
302,  B.  &  C.  Comp.,  an  attaching  creditor,  such  as  the 
appellant's  assignor,  as  against  third  persons,  should  be 
deemed  a  purchaser  in  good  faith  for  a  valuable  consid- 
eration of  the  property  attached ;  and  that  the  respond- 
ents are  third  persons  within  the  meaning  of  said  section. 
in  Rhodes  v.  McQarry,  19  Or.  229  (23  Pac.  973),  Mr.  Chief 
Justice  Thayer,  speaking  of  Section  302,  said:  **An  attach- 
ing creditor,  in  order  to  be  deemed  a  purchaser  in  good 
faith  of  the  property  as  against  one  having  an  outstand- 
ing equity,  must  allege  and  prove  all  the  facts  necessary 
to  establish  that  character  of  ownership  in  favor  of  a  pur- 
chaser of  such  property  as  against  such  an  equity."  The 
answer  in  that  case  did  not  contain  any  such  defense,  but 
was  confined  strictly  to  a  traverse  of  the  allegations  of  the 
complaint.  So  it  is  in  this  case.  The  reply  is  a  general 
denial  only  of  the  claim  of  ownership  made  by  the  respond- 
ents in  their  answer.  The  construction  placed  upon  this 
section  of  our  Code  in  the  foregoing  case  has  been  upheld 
in  the  following  cases:  Meier  v.  Hess^  23  Or.  599-601  (32 
Pac.  755);  Raymond  v.  Flavel,  27  Or.  219-248  (40  Pac. 
158);  and  Dimmick  v.  Rosenfeld,  34  Or.  101-105  (55  Pac. 
100).  The  appellant,  therefore,  not  having  brought  him- 
self within  the  statute  by  his  pleadings,  can  claim  noth- 
ing under  it. 

3.  The  only  remaining  assignment  of  error  is  based 
upon  the  admissibility  of  the  following  question  asked 
the  witness  Neis:  **From  1893  up  to  the  30th  day  of  Jan- 
uary, 1902,  what  was  your  financial  condition  as  to  having 
means?"  Appellant  contended  that  the  hops  attached  be- 
longed to  Neis,  and  that  he  was  a  dealer  in  hops,  buying 
and  selling  the  same  ;  while  the  respondents  claimed  that 
he  was  only  an  agent,  buying  hops  for  others  upon  com- 


372  Annans  v.  Sewell.  [47  Or. 

mission,  and  did  not  personally  deal  in  hops,  and  had  no 
means  with  which  to  purchase  for  himself.  This  being 
one  of  the  issues,  we  think  it  was  competent  to  show  his 
financial  condition,  both  oti  the  day  of  purchase  and  prior 
thereto. 

The  judgment  of  the  lower  court  is  therefore  affirmed. 

Affirmed. 


Argued  10  October,  1906 ;  decided  6  February,  1006. 

ANNANS  V.  SBWELL. 

84  Pac.  885. 

Appeal  — Reservation  of  Ground  of  Review  —  NeckAity  of  Except 
TioN  — Time  of  Taking. 

Under  SecUou  160  of  B.  A.  C.  Com  p.,  defining  an  exception  as  an  obtjection 
taken  at  the  trial  to  a  decision  upon  matter  of  law,  an  exception  must  be  talcen 
at  the  trial,  in  order  to  obtain  appellate  review  of  a  ruling  on  testimony,  and  the 
subsequent  allowance  of  such  an  exception  by  the  trial  Judge  does  not  cure  the 
omission  to  take  the  exception  at  the  proper  time. 

From  Washington  :  Thomas  A.  McBride,  Judge. 

Statement  by  Mr.  Chief  Justice  Bean. 

This  is  an  action  of  trover  by  Jennie  Annans  against 
j;  W.  Sewell,  sheriff,  and  others,  for  the  alleged  conversion 
of  personal  property.  The  defendants  admitted  the  con- 
version, but  justified  under  a  writ  of  execution  issued  on  a 
judgment  recovered  by  Wehrung  &  Sons  against  the  plain- 
tiff in  the  county  court  of  Washington  County.  When  the 
record  of  the  proceedings  in  that  action  was  offered  in  evi- 
dence by  the  defendants,  the  plaintiff  objected  to  its  ad- 
mission because  incompetent,  immaterial  and  irrelevant. 
The  objection  was  sustained,  and,  defendants  declining  to 
proceed  further,  the  court  instructed  the  jury  to  return  a 
verdict  in  favor  of  the  plaintiff,  which  was  done  accord- 
ingly. No  exception  was  taken  by  the  defendants  to  the 
ruling  of  the  court  in  excluding  the  evidence  at  the  time 
such  ruling  was  made,  but  a  few  days  later,  the  attention 
of  the  court  being  called  to  that  fact,  an  exception  was  then 


Feb.  1906.]  Annans  v.  Sbwbll.  373 

allowed,  and  the  time  extended  in  which  to  file  a  motion 
for  a  new  trial.  Such  motion  was  subsequently  filed  and 
overruled,- and  judgment  rendered  in  favor  of  plaintiff, 
from  which  defendants  appeal.  Affirmed. 

For  appellants  there  was  a  brief  and  an  oral  argument* 
by  ifr.  John  Milton  Wall. 

For  respondent  there  was  a  brief  and  an  oral  argument 
by  Mr,  Samuel  Bruce  Huston. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

The  plaintiff  contends  that  no  question  is  presented  by, 
the  record  for  review,  because  no  exception  was  taken  to 
the  ruling  of  the  court  in  excluding  the  evidence  at  the 
time  it  was  made,  nor  until  after  the  return  of  the  verdict. 
The  statute  defines  an  exception  as  ''an  objection  taken  at 
the  trial  to  a  decision  upon  matter  of  law,"  etc.:  B.  &  C. 
Comp.  §  169.  And  under  such  a  statute  the  authorities 
seem  to  be  uniform  that,  before  the  action  of  a  trial  court 
in  admitting  or  excluding  testimony  can  be  reviewed  on 
appeal,  an  exception  must  have  been  taken  at  the  trial  : 
State  V.  Foot  You,  24  Or.  61  (32  Pac.  1031,  33  Pac.  537) : 
Reese  v.  Kinkead,  20  Nev.  65  (14  Pac.  871);  Turner  v.  Tuol- 
umne County  Water  Co,,  25  Cal.  397 ;  Russell  v.  Dennison, 
45  Cal.  337;  Austin  v.  Andrews,  71  Cal.  98  (16  Pac.  546); 
Elliott,  App.  Proced.  §  769 ;  2  Cyc.  721,  722,  and  author- 
ities  collated.  *'The  rule  is  well  established  and  of  long 
standing,"  says  Mr.  Chief  Justice  Waite,  '*that  an  excep- 
tion, to  be  of  any  avail,  must  be  taken  at  the  trial.  It  may 
be  reduced  to  form  and  signed  afterwards;  but  the  fact 
that  it  was  seasonably  taken  must  appear  affirmatively  in 
the  record  by  a  bill  of  exceptions  duly  allowed  or  other- 
wise": United  States  v.  Carey,  110  U.  S.  51  (3  Sup.  Ct.  424, 
28  L.  Ed.  67).  The  reason  of  this  rule  is  thus  stated  in 
Kennedy  v.  Cunningham,  2  Mete.  (Ky.)  540:  **One  of  the 
leading  characteristics  of  the  provisions  of  the  Civil  Code 


374  Marquam  v.  Ross.  [47  Or. 

is  the  duty  which  they  impose  on  the  parties  to  the  actiou 
to  except  to  every  proceeding  in  the  cause  and  every  de- 
cision of  the  court  made  during  its  trial  that  is  deemed  to 
be  objectionable  by  either  party.  The  policy  of  this  requi- 
sition is  obvious.  Matters  which  are  regarded  as  of  little 
importance  at  the  time,  and  are  for  that  reason  allowed  to 
pass  unnoticed,  are  thus  finally  disposed  of,  and  cannot  be 
afterwards  relied  upon  as  erroneous.  Each  party,  by  being 
apprised  that  the  opposite  party  objects  to  some  part  of 
the  proceedings,  is  thus  put  upon  his  guard,  and  has  an 
opportunity  afforded  him  of  correcting  the  error,  if  one 
has  been  committed,  or  of  avoiding  it,  if  about  to  be  com- 
mitted," The  requirement  that  exceptions  must  be  noted 
during  the  trial  is  absolute  and  cannot  be  dispensed  with: 
2  Cyc.  715.  And  therefore  the  subsequent  allowance  by 
a  trial  judge  of  an  exception  to  a  ruling  made  during  the 
trial  does  not  cure  the  omission  to  take  the  exception  at 
the  proper  time:  Kennedy  v.  Cunningham,  2  Mete.  (Ky.) 
540;  Pacific  Exp.  Co.  v.  Malin,  132  U.  S.  531  (10  Sup.  Ct. 
166,  33  L.  Ed.  450) ;  Dimmey  v.  Railroad  Co.,  27  W.  Va. 
32  (55  Am.  Rep.  292).  It  follows  that  no  question  is  pre- 
sented by  this  record  for  review,  and  the  judgment  will 
be  affirmed.  Affirmed. 


Argued  13  July,  decided  4  December,  1905;  rehearing  denied  17  July,  190tt. 
MABaUAM   V.  BOSS. 

78  Pac.  008,  83  Pac.  852,  86  Pac.  1. 

Apprai^  — Nature  of  Okdbk  Decreeing  Right  to  Redeem. 

1.  An  order  adjudging  that  a  party  1h  entitled  to  redeem  from  a  mortgage 
sale,  fixing  the  amount  to  be  paid  and  the  time  within  which  the  redemption 
must  be  made,  and  determining  all  the  rights  of  both  parlies  in  and  tt)  the  prop- 
erty, but  reserving  the  details  of  an  accounting  for  the  rents  and  the  distribution 
of  the  redemption  fund,  is  a  llnal  order  determining  the  rights  of  the  parties, 
which  is  appealable,  within  the  meaning  of  Section  547,  B.  &  C.  Comp. 

Rks  Judicata. 

2.  The  issues  herein  were  tried  In  and  are  concluded  by  a  prior  decree  between 
the  same  parties  about  the  same  property. 


Dec.  1905.]  Marquam  v.  Ross.  375 

Right  of  Trustbe  to  Purchase  Trust  Property. 

8.  A  trustee  holding  the  title  to  property  will  not  be  permitted  to  purchase  it 
for  his  own  benefit  where  his  duty  as  trustee  obligates  him  to  secure  a  maximum 
price,  or  where  such  purchase  would  be  otherwise  In  contravention  or  ylolation 
of  his  duty,  and  if  such  a  purchase  is  made,  equity  will  consider  it  as  having 
been  for  the  benefit  of  the  cestui  que  trust,  regardless  of  the  price  paid  and  with- 
out reference  to  actual  fraud. 

Effect  of  Instrument  Conveying  Security. 

4.  An  Instrument  conveying  property  as  a  security  for  a  debt  is  in  equity  a 
mortgage,  whatever  may  be  its  form. 

Right  of  Mortgagee  in  Possession  to  Purchase. 

5.  A  mortgagee  in  possession,  though  in  some  sense  a  trustee,  is  qualified  to 
purchase  the  security  when  it  is  sold  at  execution  sale  under  his  own  or  a  prior 
lien,  as  a  means  of  protecting  his  own  claim. 

Construction  of  Trust  Agreement  —  Mortgagee  in  Possession. 

6.  PlainlifT,  owning  certain  property  largely  incumbered,  applied  to  a  trust 
company  to  secure  him  a  mortgage  loan  thereon.  The  trust  company,  being 
unable  to  obtain  the  amount  required,  agreed  to  itself  loan  the  balance,  1^  con- 
sideration of  plaintiff  executing  a  deed  of  the  property  to  it,  and  a  certain  decla- 
ration of  trust  and  agreement,  which  provided  that  the  conveyance  was  In 
consideration  of  securing  the  loan  and  in  secret  trust  for  the  purpose  thereafter 
set  out,  stipulating  for  compensation  to  the  trust  company  for  its  services  in 
managing  the  property,  collecting  ren  ts  and  profits,  and  to  secure  advances.  The 
agreement  vested  no  power  of  sale  in  the  trust  company,  nor  did  it  authorize  it 
to  convert  the  property  into  money.  Held^  that  the  trust  company  was  a  second 
mortgagee  in  possession  as  to  the  title,  and  that  the  trust  created  was  confined  to 
the  possession  and  management  of  the  property,  together  with  the  collection  and 
disbursement  of  the  rents  and  profits,  and  was  therefoi'e  terminated  on  the  fore- 
closure of  the  mortgage,  as  the  trustee  thereafter  had  no  duties  to  perform. 

Trusts  — Duty  of  Trustee —Advances. 

7.  A  mortgagor,  at  the  time  the  mortgage  was  made,  deeded  the  property  to 
a  trustee  under  an  agreement  that  the  latter  should  take  possession  and  collect 
rents  and  profits  and  apply  them  to  Interest,  taxes,  expenses,  etc.  The  deed 
obligated  the  trustee  to  make  specified  advances.  Interest  on  the  mortgage  not 
being  specifically  mentioned,  and  recited  that  it  might  become  necessary  for  the 
trustee  to  make  other  advances.  In  which  case  it  should  be  entitled  to  a  lien  on 
the  property  therefor.  Held^  that  the  trustee  was  not  bound  to  make  advances 
to  pay  interest  on  the  mortgage  to  prevent  a  foreclosure. 

Misconduct  of  Trustee  in  Possession. 

8.  In  a  suit  to  redeem  certain  property  from  foreclosure  sale,  evidence  held 
Insufilclent  to  show  that  a  trustee  of  the  property  in  possession  was  responsible 
for  the  foreclosure,  it  appearing  that  the  total  receipts  were  not  sulficient  to  pay 
interest  on  a  prior  mortgage  as  it  became  due,  even  when  applied  to  that  purpose, 
to  the  exclusion  of  taxes  and  other  charges. 

Trustees— Mutual  Construction  of  Contract. 

9.  Where  a  trustee  of  the  rents  of  mortgaged  property  makes  charges  and 
credits  in  Its  account  according  to  its  understanding  of  the  agreement  under 
which  it  holds  possession,  and  where  itemized  statements  of  these  accounts  con- 
taining such  charges  are  rendered  by  such  trustee  to  the  mortgagor  and  retained 
by  him  without  objection  until  after  suit  is  brought  to  foreclose  the  mortgage, 
the  mortgagor  In  several  instances  executing  promissory  notes  for  balances 
shown  to  be  due  by  such  statements,  the  mortgagor  will  be  held  to  have  accepted 
the  construction  of  the  agreement  made  by  the  trustee  in  so  far  as  it  relates  to  the 


376  Marquam  v.  Ross.  [47  Or. 

right  of  tbe  trustee  to  make  the  charges  and  credits  shown  by  the  statements. 
In  such  ccise  the  course  of  dealing  constitutes  a  practical  construction  of  tbe  con- 
tract which  will  bind  both  parties. 

Trustees  —  Evidence  of  Malicious  Foreclosure. 

10.  The  evidence  does  not  show  that  the  trustee  in  possession  instigated  or 
encouraged  the  foreclosure  of  a  prior  lien,  In  which  proceeding  the  trustee  fore- 
closed its  Hen,  but  it  shows  affirmatively  that  the  trustee  exercised  due  diligence 
to  avert  the  foreclosure. 

Efi^ect  of  Power  of  Sale  im  Deed  of  Trust. 

11.  An  authority  to  sell  contained  In  a  conveyance  of  property  in  trust  does 
not  authorize  a  sale  except  by  a  foreclosure  and  decree,  under  Section  423,  B.  A  C. 
Comp.,  providing  that  a  Hen  upon  real  or  personal  property,  other  than  that  of  a 
Judgment  or  decree,  must  be  foreclosed  by  a  suit  in  equity. 

Construction  of  Agreement. 

12.  The  supplemental  agreement  under  consideration  here  was  in  effect  a 
mortgage  of  the  property  therein  described  to  the  trustee  for  the  benefit  of  a 
named  creditor,  and  It  did  not  change  the  conditions  created  by  the  original  con- 
tract between  the  same  parties. 

From  Multnomah  :  Alfred  F.  Sears,  Jr.,  Judge. 

Suit  by  P.  A.  Marquam  against  J.  Thorburn  Ross  and 
three  corporations,  asserting  the  right  to  redeem  certain 
real  property  from  a  purchase  by  Ross  at  a  mortgage  fore- 
closure sale.  There  was  a  decree  for  plaintiff  at  the  cir- 
cuit. A  motion  to  dismiss  the  appeal  was  overruled,  the 
opinion  being  written  by  Mr.  Chief  Justice  Moore,  and  the 
case  was  decided  on  its  merits.  The  main  opinion  was 
written  by  Mr.  Justice  Bean.  On  a  motion  for  a  rehear- 
ing, the  opinion  was  written  by  Mr.  Justice  Hailey. 

Reversed. 


Decided  5  December,  1904. 

On  Motion  to  Dismiss  the  Appeal. 

Mr.  Edward  -By era  Watson  and  Mr,  Albert  Hawes  Tanner 
for  the  motion. 

Mr.  Wallace  McCamant,  contra. 

Mr.  Chief  Justice  Moore  delivered  the  opinion. 

This  is  a  motion  to  dismiss  an  appeal.  The  material 
facts  are  that,  a  mortgage  executed  by  plaintiff  to  the  de- 
fendant the  United  States  Mortgage  &  Trust  Co.  having 


Dec.  1904  ]  Marquam  v.  Ross.  377 

been  foreclosed,  the  real  property  incumbered  thereby  was 
sold  under  the  decree  December  10, 1900,  and  the  sale  con- 
firmed: United  States  Mortgage  Co,  v.  Marquam^  41  Or.  391 
(69  Pac.  37,  41).  This  suit  was  instituted  to  redeem  the 
premises  from  such  sale  on  the  ground  that  the  purchaser 
was  plaintiff's  trustee,  who  had  unlawfully  caused  the 
sheriff's  deed  therefor  to  be  executed  to  the  Oregon  Com- 
pany, a  corporation,  which,  it  is  alleged,  is  not  an  inno- 
cent purchaser.  It  is  stated  in  the  complaint  that  since 
December  10,  1900,  th«  plaintiff's  trustee  and  the  Oregon 
Company  have  been  in  possession  of  the  mortgaged  prem- 
ises, collecting  the  rents  arising  therefrom,  amounting  to 
13,000  a  month.  The  prayer  of  the  bill  is  for  an  account- 
ing of  the  rents  and  profits  of  the  real  property  received 
since  the  sale;  that  the  sum  required  of  plaintiff  to  redeem 
may  be  ascertained,  and  the  time  within  which  such  pay- 
ments are  to  be  made  prescribed ;  that  the  purchaser  at 
such  sale  and  the  corporations  represented  by  him  may 
be  declared  plaintiff's  trustees,  and  hold  the  rents,  issues, 
and  profits  so  collected,  and  any  right,  title  or  estate  in 
the  real  property  acquired  by  reason  of  the  sale  and  the 
sheriff's  deed,  in  trust  for  him,  and  be  required  to  convey 
the  same  to  him  upon  the  payment,  within  the  time  to  be 
prescribed,  of  the  sums  so  ascertained,  or  that  all  the  real 
property  may  be  resold ;  and  for  such  further  relief  as 
may  be  equitable  in  the  premises. 

The  cause  being  at  issue  was  tried,  resulting  in  a  decree 
to  the  effect  that  the  sale  of  the  premises  was  made  to  the 
purchaser  thereof,  as  trustee  for  plaintiff ;  that  the  Oregon 
Company  was  not  an  innocent  purchaser ;  that  plaintiff  is 
entitled  to  redeem  the  premises  sold  on  paying  the  sums 
alleged  in  the  complaint  to  have  been  given  therefor  and 
interest  thereon,  to  wit,  block  178  in  the  City  of  Portland, 
$350,249.97,  80  acres  of  land  in  Multnomah  County,  $10,- 
000,  and  lots  1, 2,  3,  and  4  in  block  120  in  the  City  of  Port- 


378  Marquam  v.  Ross.  [47  Or. 

land,  $850,  $750,  $750,  and  $950,  respectively  ;  that  plain- 
tiff  is  entitled  to  the  rents  and  profits  from  December  10, 
1900;  that  an  accounting  should  be  had  to  determine 
the  amount  thereof,  together  with  deductions  therefrom 
for  disbursements,  expenses,  etc.;  and  that  a  referee  be 
appointed  to  take  evidence  relating  thereto,  to  state  the 
account  and  to  report  the  same,  so  that  the  balance,  if 
any,  may  be  deducted  from  the  sums  required  to  be  paid 
for  redemption  ;  that  plaintiff,  his  heirs  or  assigns,  be 
allowed  to  redeem  within  six  months  after  the  decree  upon 
such  accounting  shall  have  been  entered  ;  that  the  several 
defendants  may  apply  to  the  court  to  determine  when 
plaintiff  shall  be  deemed  barred  of  his  rights  under  the 
decree,  and  also  for  directions  as  to  which  of  the  defend- 
ants is  entitled  to  receive  any  money  paid  in  redemption; 
and  that  plaintiff  recover  from  the  defendants  his  costs 

and  disbursements,  taxed  at  $ From  this  decree  the 

several  defendants  appeal,  whereupon  plaintiff's  counsel 
interpose  this  motion,  contending  that  the  order  sought 
to  be  reviewed  is  only  interlocutory.  They  argue  that,  as 
an  accounting  is  a  part  of  the  relief  demanded,  no  final 
decree  can  be  tendered  until  the  account  is  stated,  and 
that  an  appeal  prior  to  the  rendition  of  a  decree  settling 
such  account  is  premature,  and  should  be  dismissed.  It 
is  insisted  by  defendants'  counsel,  however,  that  the  right 
to  redeem  was  the  primary  issue  involved,  which,  having 
been  determined  in  plaintiff's  favor,  necessarily  carried 
with  it,  as  an  incident  thereto,  the  recovery  of  the  rents 
and  profits  accruing  since  the  sale,  less  certain  credits, 
and,  the  court  having  adjudged  that  defendants  should 
pay  the  costs  and  disbursements  incurred,  the  decree  is 
susceptible  of  immediate  execution,  thereby  precluding 
further  inquiry,  except  such  as  is  necessary  to  carry  it 
into  effect,  and  hence  it  is  final  and  appealable. 


Dec.  1904.]  Marquam  v,  Ross.  379 

i 

1.  The  statute  of  this  State  prescribing  what  constitutes 
an  appealable  judgment  or  decree  is  as  follows  : 

"An  order  affecting  a  substantial  right,  and  which  in 
effect  determines  the  action  or  suit  so  as  to  prevent  a  judg- 
ment or  decree  therein,  or  a  final  order  affecting  a  sub- 
stantial right,  and  made  in  a  proceeding  after  judgment  or 
decree,  for  the  purpose  of  being  reviewed,  shall  be  deemed 
a  judgment  or  decree*':  B.  &  C.  Comp.  §  547. 

Though  it  is  universally  acknowledged  that  ultimate 
judgments  only  are  appealable,  a  great  diversity  of  opinion 
is  to  be  found  in  the  adjudged  cases  in  respect  to  what  con- 
stitutes a  final  decree.  In  McGourkey  v.  Toledo  &  Ohio  Ry. 
Co.,  146  U.  S.  530  (13  Sup.  Ct.  170,  36  L.  Ed.  1079),  Mr. 
Justice  Brown,  in  commenting  on  this  principle,  says: 
"Probably  no  question  of  equity  practice  has  been  the 
subject  of  more  frequent  discussion  in  this  court  than  the 
finality  of  decrees.  It  has  usually  arisen  upon  appeals 
taken  from  decrees  claimed  to  be  interlocutory,  but  it  has 
occasionally  happened  that  the  power  of  the  court  to  set 
aside  such  a  decree  at  a  subsequent  term  has  been  the  sub- 
ject of  dispute.  The  cases,  it  must  be  conceded,  are  not 
altogether  harmonious."  In  support  of  the  legal  princi- 
ples insisted  upon,  our  attention  is  called  to  several  cases 
in  which  it  is  held  that  decrees  awarding  partition  of  real 
property  and  appointingcommissionerstodividethe  prem- 
ises equitably  do  not  constitute  final  adjudications,  and 
that  in  suits  of  this  kind  appeals  will  not  lie,  except  to 
review  the  action  of  the  trial  court  in  disposing  of  the 
reports  of  the  referees.  These  cases,  in  our  opinion,  are 
not  controlling.  The  ancient  rule  relating  to  appeals  from 
decrees  dividing  real  property  into  respective  shares,  is 
thus  stated  by  Mr.  Justice  Scott  in  Gudgell  v.  Mead,  8  Mo. 
54  (40  Am.  Dec.  120):  "In  proceedings  in  partition,  both 
at  law  and  in  equity,  there  are  two  judgments  and  decrees  ; 
the  one  interlocutory,  and  the  other  final.    The  first  is 


380  Marquam  v.  Ross.  [47  Or. 

'quod  partitio  fiat  inter  partes  de  tenementis/  upon  which 
a  writ  or  commission  goes  commanding  that  partition  be 
made ;  and  upon  the  return  of  this  writ  or  commission  ex- 
ecuted, if  the  proceedings  are  approved  by  the  court,  the 
second  judgment  is  givep  'quod  partitio  praedicta  firma  et 
stabilis  in  perpetuum  teneatur.'  This  is  the  principal  judg- 
ment, and  of  the  other  before  this  is  given  no  writ  of  error 
does  lie''— citing  Thomas'  Coke,  vol.  i,  807,  808.  This  old 
mode  of  partitioning  real  property  is  practically  reenacted 
by  our  statute  regulating  the  procedure  in  suits  instituted 
for  that  purpose  :  B.  &  C.  Comp.  §§  435-483.  In  constru- 
ing the  provisions  of  this  act  it  has  been  held  that  a  decree 
determining  the  rights  of  respective  parties  to  real  estate 
and  directing  a  partition  or  sale  thereof  without  further 
proceedings,  or  to  be  followed  by  an  ultimate  disposition 
of  the  report  of  the  referees  appointed,  is  only  interlocu- 
tory :  Bybee  v.  Summers^  4  Or.  354 ;  Sterling  v.  Sterling^  43 
Or.  200  (72  Pac.  741). 

Our  attention  is  also  called  to  cases  involving  injunctions 
to  restrain  infringements  of  patents,  in  which  the  causes 
were  referred  to  ascertain  the  amount  of  damages  sus- 
tained. As  such  suits  are  instituted  primarily  to  recover 
money  for  a  violation  of  the  exclusive  rights  of  the  pat- 
entee or  his  assignee,  and  the  injunction  is  only  incidental 
thereto,  the  cases  are  not  in  point:  Winthrop  Iron  Co.  v. 
Meekery  109  U.  S.  180  (3  Sup.  Ct.  Ill,  27  L.  Ed.  898).  In 
that  case  it  was  held  that  a  decree  determining  the  right 
to  and  the  possession  of  certain  property,  which  the  pre- 
vailing party  was  entitled  to  have  carried  into  immediate 
execution,  was  final,  though  the  trial  court  retained  pos- 
session of  so  much  of  the  decree  as  might  be  necessary  to 
adjust  the  accounts  between  the  parties,  Mr.  Chief  Justice 
Waite  saying :  **The  case  is  altbgether  different  from  suits 
by  patentees  to  establish  their  patents  and  recover  for  the 
infringement.    There  the  money  recovery  is  part  of  the 


Dec.  1904.]  Marquam  v.  Ross.  381 

subject-matter  of  the  suit.  Here  it  is  only  an  incident  to 
what  is  sued  for."  The  plaintiff^s  counsel  cite  numerous 
decisions  from  courts  of  last  resort,  state  and  federal,  to 
the  effect  that,  the  rights  of  parties  having  been  adjudi- 
cated, thereby  determining  the  principal  issues  involved, 
but  ordering  a  reference  for  an  accounting,  such  decrees 
are  only  interlocutory;  and  they  insist  that  reason  and 
the  weight  of  authority  establish  the  rule  that  no  decree 
is  final  that  orders  a  reference  to  do  what  the  court,  but 
for  its  power  of  delegation,  would  itself  be  obliged  to  do 
before  it  could  decide  it.  Whether  the  preponderaVice  of 
judicial  enunciation  is  as  claimed  it  is  not  necessary  to 
inquire,  for  we  believe  this  court  is  committed  to  the  doc- 
trine that,  where  a  decree  settles  the  substantial  merits  of 
the  case,  but  orders  an  account  between  the  parties,  it  is, 
nevertheless,  appealable:  2  Cyc.  588,  note  82. 

In  Basche  v.  Pringle,  21  Or.  24  (26  Pac.  863),  Mr.  Jus- 
tice Bean,  in  speaking  of  the  kind  of  a  judgment  from 
which  an  appeal  will  lie,  says  :  **It  is  one  which  concludes 
the  parties  as  regards  the  subject-matter  in  controversy  in 
the  tribunal  pronouncing  it.  It  must  be  one  which  not 
only  affects  a  substantial  right,  but  which,  in  effect,  deter- 
mines the  action."  In  State  v.  Security  Savings  Co.^  28 
Or.  410  (43  Pac.  162),  it  was  held  that  an  order  overruling 
a  demurrer  to  a  bill  of  discovery,  and  requiring  the  de- 
fendant to  answer  interrogatories  set  forth  therein,  was 
final  for  the  purpose  of  taking  an  appeal,  the  court  say- 
ing: "The  law,  as  we  understand  it,  is  that  an  order  or 
decree  is  final  for  the  purposes  of  an  appeal  when  it  deter- 
mines the  rights  of  the  parties ;  and  no  further  questions 
can  arise  before  the  court  rendering  it  except  such  as  are 
necessary  to  be  determined  in  carrying  it  into  effect."  In 
Rockwell  V.  Portland  Sav.  Bank,  35  Or.  303  (57  Pac.  903), 
a  petition  praying  that  the  receiver  of  an  insolvent  cor- 
poration be  required  to  treat  the  petitioners  as  creditors 


382  Marquam  v.  Ross.  [47  Or. 

thereof  having  been  denied,  it  was  ruled  that  the  order 
was  final  as  determining  the  rights  of  the  parties.  In  an- 
other trial  of  the  same  case  (39  Or.  241,  64  Pac.  388,)  it 
was  held  that  an  order,  made  pending  the  settlement  of 
the  estate  of  an  insolvent  corporation,  allowing  a  claim 
and  directing  the  payment  thereof  by  the  receiver,  was 
appealable.  "The  rule,"  said  Mr.  Chief  Justice  Wolver- 
TON,  in  State  ex  rel  v.  Downing,  40  Or.  309  (58  Pac,  8(53, 
66  Pac.  917),  "seems  to  be  that,  where  it  is  the  purpose  of 
the  court  to  pass  upon  all  the  questions  at  issue,  and  to 
finally  consider  and  determine  concerning  them,  and  make 
and  enter  a  concluding  order  respecting  them,  without  any 
intention  of  holding  the  matter  in  abeyance  so  that  it  may 
subsequently  modify  or  revoke  the  order,  the  judgment  so 
entered  will  be  deemed  to  be  final."  In  Baker  v.  Williams 
Banking  Co..  42  Or.  213  (70  Pac.  711),  it  was  ruled  that  a 
decree  determining  the  validity  of  a  claim  against  a  fund 
in  the  custody  of  the  officers  of  a  court,  derived  from  the 
assets  of  an  insolvent  corporation,  which  decree  was  made 
prior  to  the  final  settlement  of  its  estate,  was  a  final  adju- 
dication of  the  right  to  participate  in  the  fund,  and  could 
not  thereafter  be  controverted  by  the  then  parties  to  the 
proceeding. 

In  Schwartz  v.  Gerhardt,  44  Or.  425  (75  Pac.  698),  in  a 
suit  to  establish  a  constructive  trust  and  for  an  account- 
ing, the  relief  demanded  having  been  decreed,  and  an 
appeal  therefrom  taken,  it  was  held  that  the  cause  was 
properly  reserved  for  the  purpose  of  an  accounting.  Mr. 
Justice  WoLVKRTON,  in  deciding  the  case, says:  "The  cir- 
cuit court  reserved  the  matter  of  the  accounting  for  further 
hearing  and  consideration.  This  was  regular,  under  the 
practice."  In  Lemmons  v.  Huber,  45  Or.  282  (77  Pac.  836), 
the  merits  of  the  case  having  been  determined  in  a  jus- 
tice's court,  which  dismissed  the  action  on  the  ground 
that  the  plaintiff  had  failed  to  sustain  the  allegations  of 


Dec.  1904.]  Marquam  v,  Ross.  283 

his  complaint,  and  rendered  judgment  against  him  for 
the  costs  and  disbursements,  from  which  no  appeal  was 
taken  to  the  circuit  court  within  the  time  prescribed,  it 
was  held  that  an  appeal  from  a  subsequent  action  of  the 
justice's  court  on  a  motion  to  retax  the  costs  did  not  bring 
up  for  review  the  prior  decision,  Mr.  Justice  Bean  saying, 
*'A  judgment  is  final  for  the  purpose  of  an  appeal  when 
it  determines  the  rights  of  the  parties."  In  Wadhams  v. 
Alien,  45  Or.  485  (78  Pac.  362),  a  decree  dismissing  the 
suit  having  been  rendered,  the  costs  and  disbursements 
w^ere  taxed  against  plaintiffs,  to  which  latter  part  of  the 
decree  they  filed  objections  the  day  it  was  entered.  More 
than  seven  months  thereafter  the  objections  were  over- 
ruled, whereupon  plaintiffs  appealed,  assigning  as  error 
the  action  of  the  trial  court  relating  to  the  merits  of  the 
case,  and  not  to  the  taxation  of  costs.  It  was  held  that  the 
appeal  was  not  taken  within  the  time  prescribed  by  law. 
The  cases  decided  by  this  court  to  which  attention  is  called 
are  cited  to  show  the  general  policy  pursued  relating  to 
appeals,  from  which  it  will  be  seen  that  the  original  adju- 
dication of  the  right  involved  within  the  issues  is  the 
judgment  or  decree  from  which  an  appeal  lies,  and  that, 
if  the  decree  "determines  the  rights  of  the  parties"  on  the 
merits,  though  it  reserves  the  matter  of  accounting  for 
further  hearing  and  consideration,  it  is  nevertheless  final : 
Schtvartz  v.  Gerhardt,  44  Or.  425  (75  Pac.  698). 

In  McMurray  v.  Day,  70  Iowa,  671  (28  N.  W.  476),  a  suit 
having  been  instituted  to  set  aside  a  deed  to  real  property, 
the  relief  demanded  was  decreed,  but  the  cause  was  re- 
ferred to  ascertain  certain  items  of  debt  and  credit  between 
the  parties,  and,  the  account  having  been  stated  and  filed, 
a  decree  was  rendered  approving  it,  whereupon  defendant 
took  an  appeal,  but  after  the  statute  allowing  the  right  had 
run  against  the  first  decree.  It  was  held  that  the  prior 
adjudication  was  a  final  determination  of  the  substantial 


384  Marquam  v.  Ross.  [47  Or. 

rights  of  the  parties,  and  that  the  time  for  taking  an  appeal 
was  to  be  computed  from  the  day  the  first  decree  was  ren- 
dered, and  not  from  the  order  of  the  court  approving  the 
report  of  the  referee,  Mr.  Chief  Justice  Adams,  saying: 
"The  first  question  presented  is  as  to  whether  the  original 
decree. of  December  17,  1884,  is  now  subject  to  review. 
The  plaintiffs  insist  that  it  is  not.  Their  position  is  that 
that  decree  constitutes  a  final  judgment,  and  is  reviewable 
in  this  court  only  upon  an  appeal  therefrom,  taken  within 
six  months  from  the  time  of  its  rendition.  Counsel  for  the 
defendant  concede  an  appeal  cannot  be  taken  from  a  final 
judgment  after  six  months  from  its  rendition,  but  they 
deny  that  the  decree  of  December  17,  1884,  was  a  final 
judgment.  It  was,  of  course,  not  a  final  judgment  in  the 
sense  that  it  was  the  last  judgment  rendered  in  the  case  ; 
but  it  is  manifest  that  there  is  another  sense  in  which  the 
words  *final  judgment'  may  be  used,  and  that  is  to  denote 
the  final  determination  of  a  substantial  right  for  which 
the  action  was  brought.  This  action  was  brought  to  de- 
termine the  plaintiff's  right  to  the  land  in  question.  They 
asserted  that  right,  and  the  defendant  denied  it.  The  court 
adjudged  that  the  plaintiffs  had  such  right.  It  is  true  that 
there  were  certain  equities  in  favor  of  the  defendant.  He 
had  paid  the  plaintiffs  a  certain  sum  for  the  land,  and  was 
entitled,  after  accounting  for  rents  and  profits,  to  be  reim- 
bursed. The  exercise  of  the  right  on  the  part  of  the  plain- 
tiffs was  made  contingent  upon  their  paying  the  defendant 
what  he  was  equitably  entitled  to.  But  for  that  fact  there 
would  have  been  no  need  of  a  second  decree.  But  the 
former  adjudication  was  in  no  way  dependent  upon  the 
state  of  the  account,  or  upon  the  plaintiffs'  payment.  Noth- 
ing could  be  developed  in  the  subsequent  proceeding  which 
could  affect  its  correctness,  or  require  it  to  be  changed. 
It  was  final,  we  think,  if  a  decree  ever  can  be  final  where 
something  more  is  to  be  ascertained  and  done  in  order  to 


Dec.  1904  ]  Marquam  v.  Ross.  385 

give  the  party  in  whose  favor  it  was  rendered  a  right  to 
its  enjoyment."  The  rule  announced  in  that  case  was 
approved  in  Carter  v.  Davidson,  73  Iowa,  45  (34  N.  W.  603), 
where  a  suit  was  instituted  to  quiet  title  to  real  property, 
and,  a  decree  having  been  rendered  in  favor  of  plaintiff 
establishing  the  right  asserted,  the  cause  was  continued 
in  consequence  of  the  filing  of  a  petition  of  intervention. 
A  subsequent  decree  having  been  rendered  against  the 
intervener  and  the  defendant,  the  latter  appealed  there- 
from, but  after  the  statute  had  run  against  the  right  of 
appeal  from  the  original  decree ;  and  it  was  held  that  the 
appeal  did  not  bring  up  for  review  the  prior  action  of  the 
court. 

In  Adams  v.  Sayre,  76  Ala.  509,  a  suit  was  instituted  to 
redeem  real  property  sold  under  a  mortgage  on  the  ground 
that  the  purchaser  was  the  mortgagor's  trustee,  and,  a 
decree  having  been  rendered  as  prayed  for,  the  cause  was 
referred  to  state  an  account  between  the  parties  concern- 
ing the  rents  and  profits  of  the  premises,  to  be  offset  by 
taxes  paid,  cost  of  repairs,  and  the  value  of  permanent 
improvements.  Thereafter,  when  the  register  proceeded 
to  state  the  account,  the  complainant  at  a  subsequent  term 
of  the  court  secured  a  modification  of  the  decree,  and,  the 
account  rendered  having  been  approved,  it  was  decreed 
that  upon  the  payment  of  the  sum  found  due  the  mortgage 
should  be  satisfied.  From  this  latter  decree  an  appeal  was 
taken,  and  it  was  held  that  the  trial  court  was  without 
power  to  modify  the  original  decree,  Mr.  Justice  Somer- 
viLLE  saying :  **It  is  the  settled  doctrine  of  this  court  that, 
as  a  general  rule,  there  can  be  but  one  final  decree  upon 
the  merits  of  a  chancery  cause,  which  is  required  to  settle 
all  the  equities  litigated  or  necessarily  involved  in  the 
issues  of  the  particular  suit.  The  policy  of  the  rule  is 
found  in  the  indisposition  of  the  appellate  courts  to  mul- 

47  0b. 25 


386  Marquam  v.  Ross.  [47  Or. 

tiply  appeals  by  undertaking  Ho  review  litigated  eases 
piecemeal':  Randle  v.  Boyd,  73  Ala.  282.  A  decree  may, 
nevertheless,  be  partly  final  and  partly  interlocutory ; 
final,  so  far  as  it  determines  all  issues  of  law  and  fact,  con- 
stituting the  equities  proper  of  the  cause,  and  interlocu- 
tory as  to  ulterior  proceedings  regulating  its  mode  of  exe- 
cution. There  may  be,  therefore,  and  often  are,  under  our 
system  of  chancery  practice,  two  final  decrees  in  the  same 
cause ;  the  one  settling  the  substantial  merits  of  the  case, 
and  the  other  based  on  the  final  report  of  the  register, 
upon  an  account  taken  between  the  parties  computing 
damages,  from  each  of  which  an  appeal  will  lie  to  this 
court."  In  Jones  v.  Wilson,  54  Ala.  50,  Mr.  Chief  Justice 
Brickell,  in  speaking  of  the  ultimate  conclusion  of  a  court 
of  equity  in  a  case  pending  before  it,  says :  **The  test  of 
the  finality  of  a  decree,  so  as  to  support  an  appeal,  which 
our  decisions  have  prescribed,  is  not  whether  the  cause  is 
still  in  progress  in  the  court  of  chancery,  awaiting  further 
proceedings,  which  may  be  necessary  to  entitle  the  par- 
ties to  the  full  possession  and  enjoyment  of  the  rights  it 
has  been  declared  they  have,  but  whether  a  decree  has 
been  rendered  settling  these  rights.  If  these  are  settled 
by  the  decree,  though  a  reference  to  the  register  may  be 
necessary,  and  may  be  ordered,  to  ascertain  the  amount 
due  from  one  to  the  other  on  the  basis  of  the  rights  as 
adjudged,  the  decree  is  final,  and  will  support  an  appeal." 
As  tending  to  support  the  principle  here  announced  that 
a  decree  is  final  though  the  cause  is  referred  to  state  an 
account,  see  Decatur  Land  Co,  v.  Cook,  125  Ala.  708  (27 
South.  1022);  Townsend  v.  Peterson,  12  Colo.  491  (21  Pac. 
619);  Fry  v.  Rush,  63  Kan.  429  (65  Pac.  701);  Perrin  v. 
Lepper,  72  Mich.  454  (40  N.  W.  859);  Hake  v.  Coach,  105 
Mich.  425  (63  N.  W.  306);  Ayer  v.  Termatt,  8  Minn.  96 
(Gil.  71);  Arnold  v.  Sinclair,  11  Mont.  556  (29  Pac.  340^ 
28  Am.  St.  Rep.  489);  France  v.  Bell,  52  Neb.  57  (71  N.  w! 


July,  1905.]  Marquam  v,  Ross.  387 

984);  Tennessee  Railroad  Co.  v.  Campbell,  109  Tenn.  655 
(73S.W.  112). 

In  the  case  at  bar,  the  issue  involved  is  the  right  to 
redeem, and,  this  having  been  adjudged  in  plainti£f*s  favor, 
and  the  property  affected  thereby  particfularly  described, 
the  sum  to  be  paid  therefor  specified,  and  the  costs  and 
disbursements  taxed  to  the  defendants,  the  decree,  in  our 
opinion,  "determines  the  rights  of  the  parties,"  is  suscept- 
ible of  immediate  enforcement  by  tendering  to  the  clerk 
of  the  court  the  sums  prescribed,  with  interest,  less  $3,000 
a  month,  alleged  to  have  been  received  as  rent,  leaving 
the  remainder  to  be  paid  on  confirmation  of  the  referee's 
report;  and  is  therefore  final  and  appealable. 

It  follows  from  these  considerations  that  the  motion  to 
dismiss  the  appeal  should  be  denied,  and  it  is  so  ordered. 

Motion  to  Dismiss  Overruled. 


Decided  18  July,  1905. 

On  the  Merits. 

Statement  by  Mr.  Justice  Bean. 

This  is  a  suit  by  P.  A.  Marquam  against  the  United  States 
Mortgage  &  Trust  Co.,  a  New  York  corporation,  herein- 
after called  the  **Mortgage  Company,"  The  Title  Guarantee 
&  Trust  Co.,  an  Oregon  corporation,  hereinafter  called  the 
"Title  Company,"  the  Oregon  Co.,  and  J.  Thorburn  Ross 
to  redeem  block  178,  known  as  the  **Marquam  Block,"  and 
lots  1,  2,  3  and  4,  in  block  120,  in  the  City  of  Portland, 
and  80  acres  of  land  in  or  near  that  city  from  a  purchase 
by  Ross,  as  trustee  for  the  Title  Company,  at  a  sheriff's 
sale,  under  a  decree  in  a  suit  brought  by  the  Mortgage 
Company  against  Marquam,  the  plaintiff  herein,  the  Title 
Company,  and  others,  to  foreclose  a  mortgage  on  such 
property,  and  to  require  the  Title  Company  and  the  Ore- 
gon Company,  its  successor  in  interest,  to  account  for  the 


388  Marquam  v.  Ross.  [47  Or. 

rents  and  profits  accruing  after  the  purchase.  The  facts 
are  these:  In  August,  1894,  the  plaintiff  was  the  owner  of 
the  property  in  question,  which  was  incumbered  with 
mortgages  and  attachments  for  more  than  $300,000.  His 
creditors  /were  pressing  him  for  payment,  and  he  was 
obliged  to  secure  a  new  loan  or  suffer  a  forced  sale  of  the 
property.  He  made  application  to  the  Title  Company,  the 
local  correspondent  of  the  Mortgage  Company,  for  a  loan 
from  the  latter  of  $400,000,  at  5i  per  cent  interest,  to  be 
secured  by  mortgage  on  the  Marquam  Building,  offering, 
if  the  loan  were  made,  that  the  rents  of  the  property  should 
be  impounded  as  additional  security  therefor,  and  collected 
and  disbursed  by  the  Title  Company.  The  Mortgage  Com- 
pany declined  to  make  the  loan  as  applied  for,  but  after 
considerable  negotiation  finally  agreed,  on  October  16th,  to 
lend  $300,000,  for  five  years,  at  7  per  cent,  secured  by  a 
mortgage  on  the  Marquam  Block  and  the  80  acres  of  land  ; 
the  management  and  control  of  the  property  and  the  col- 
lection of  the  rents  to  be  in  charge  of  the  Title  Company 
during  the  existence  of  the  loan.  The  plaintiff  was  willing 
to  accept  this  offer.  As  the  $300,000  was  not  sufficient  to 
pay  his  pressing  demands,  however,  or  relieve  his  prop- 
erty from  liens,  the  Title  Company  agreed,  at  his  request, 
to  advance  suflBcient  money  to  make  up  the  deficiency, 
such  advances  to  be  secured  by  a  lien  on  the  property  and 
the  rents  subsequent  to  that  of  the  Mortgage  Company. 
Plaintiff  thereupon  entered  into  a  contract  with  two  of  his 
attaching  creditors,  the  Portland  Nat.  Bank  and  George  B. 
Ellis,  which,  after  reciting  his  desire  to  borrow  of  the 
Mortgage  Company  $300,000,  and  secure  the  same  by  mort- 
gage on  the  Marquam  Block  and  the  80  acres  of  land,  and 
stating  in  detail  his  indebtedness  and  the  claims  against 
the  property,  proceeds  as  follows: 

''Now,  Therefore,  This  Agreement,  entered  into  on  this 
thirtieth  day  of  October,  1894,  by  the  undersigned  parties 


July,  1905.]  Makquam  v.  Ross.  389 

,  interested  in  the  premises,  witnesseth :  That  The  Title, 
Guarantee  &  Trust  Company,  acting  for  and  on  behalf  of 
the  said  P.  A.  Marquam  (and  said  P.  A.  Marquam  hereby 
agreeing  to  the  terms  hereof),  does  for  certain  valuable 
considerations  agree  to  procure  for  him  the  necessary 
funds  to  discharge  the  hereinbefore  described  two  mort- 
gages, the  taxes  for  1893,  costs  of  repairs  of  roof,  fire 
insurance  premiums  and  expense  in  securing  loan,  aggre- 
gating three  hundred  and  fifteen  thousand  dollars  ($315,- 
000),  and  to  procure  for  the  said  Marquam  funds  with 
which  to  make  a  cash  payment  to  said  W.  W.  Cotton,  on 
the  indebtedness  due  the  said  Ellis  of  Riverside,  Cali- 
fornia, of  thirty-six  hundred  dollars  ($3,600),  provided 
the  said  suits  be  both  dismissed  and  said  attachment  to 
be  released,  and  provided  that  upon  the  execution  of  the 
mortgage  on  caid  property  and  notes  in  favor  of  the  United 
States  Mortgage  Company  for  three  hundred  thousand 
dollars  ($300,000)  said  property  shall  be  conveyed  by  the 
said  P.  A.  Marquam  and  Emma  Marquam,  his  wife,  to  said 
The  Title  Guarantee  &  Trust  Company  in  secret  trust  to 
hold  the  said  property  and  to  collect  the  rents  thereof  for 
the  following  purposes,  to  wit: 

First — To  pay  the  fixed  charges  for  operating  the  build- 
ings on  said  premises  and  to  pay  for  necessary  repairs  and 
for  services  in  collecting  rents,  and  to  pay  the  interest  on 
said  loan  of  three  hundred  thousand  dollars  ($300,000), 
and  all  taxes  and  other  public  charges  on  said  property 
and  on  said  indebtedness. 

Second — To  pay  all  amounts  to  be  advanced  by  said  The 
Title  Guarantee  &  Trust  Company  for  the  said  Marquam 
in  carrying  out  the  requirements  expressed  herein,  with 
interest  thereon  at  ten  per  cent. 

Third — To  pay  pro  rata  said  claims  of  the  Portland  Na- 
tional Bank  and  Mr.  Ellis  and  interest  thereon  at  ten  (10) 
per  cent  per  annum. 

Fourth — To  pay  said  The  Title  Guarantee  &  Trust  Com- 
pany for  its  services  in  executing  said  trust,  and. 

Fifth — After  said  three  hundred  thousand  dollars  loan 
to  be  made  by  said  the  United  States  Mortgage  Company 
shall  be  paid  off,  to  reconvey  said  property  to  the  said  P. 
A.  Marquam  or  to  his  assigns.   . 


390  Marquam  v.  Ross.  [47  Or. 

And  the  said  W.  W.  Cotton,  for  and  on  behalf  of  his  said 
client,  and  the  said  Portland  National  Bank,  in  considera- 
tion of  the  premises,  do  hereby  agree  to  accept  a  settle- 
ment of  their  said  claims  in  the  manner  hereinbefore  set 
out  Said  action  not  to  be  dismissed  and  said  attachment 
not  to  be  discharged  until  said  trust  deed  is  executed,  as 
above  provided,  and  a  certificate  of  said  trust  issued  to  said 
attaching  creditors,  reciting  the  same  and  the  terms  of 
this  agreement,  duly  executed  and  acknowledged. 
P.  A.  Marquam. 
The  Portland  National  Bank. 

By  W.  D.  Fenton,  of  Its  Attorneys. 
George  B.  Ellis, 

By  W.  W.  Cotton,  His  Attorney." 

At  the  time  this  contract  was  made,  and  as  part  of  the 
same  transaction,  the  plaintiff  agreed  in  writing  with  the 
Title  Company  to  pay  it  $4,500  for  exchange,  title  insur- 
ance, brokerage,  etc.,  for  procuring  the  loan,  3  per  cent 
commission  on  all  collections,  of  whatsoever  nature,  after 
October  31,  1894,  and  $1,000  per  annum  for  its  services, 
together  with  one  sixth  of  the  rents  and  profits  derived 
from  the  mortgaged  property  in  excess  of  what  was  then 
being  received.  On  November  13,  1894,  the  transaction 
was  finally  consummated  by  the  plaintiff  and  his  wife  ex- 
ecuting and  delivering  to  the  Mortgage  Company  a  first 
mortgage  on  the  Marquam  Building  and  the  80-acre  tract 
of  land  to  secure  the  payment  of  their  promisory  notes  for 
$300,000,  principal,  due  five  years  from  date,  and  20  in- 
terest notes  for  $5,250  each,  one  of  which  matured  every 
three  months,  also  a  deed  to  The  Title  Company  of  the 
mortgaged  property  and  lots  1,  2,  3  and  4,  in  block  120, 
absolute  in  form  and  purporting  to  convey  the  legal  title, 
subject,  however,  to  the  prior  mortgage,  and  entered  into 
a  written  defeasance  or  agreement  with  The  Title  Company 
as  follows : 

"This  Declaration  of  Trust  and  Agreement,  entered  into 
in  duplicate,  on  this,  the  thirteenth  day  of  November,  a.  d. 


July,  1905.]  Marquam  v.  Ross.  391 

1894,  by  and  between  P.  A.  Marquam  and  Emma  Mar- 
quam, his  wife,  of  the  City  of  Portland,  Oregon,  and  The 
Title  Guarantee  &  Trust  Company,  a  corporation,  organ- 
ized and  doing  business  under  the  laws  of  the  State  of 
Oregon,  witnesseth : 

That  Whereas,  in  consideration  of  the  premises  and  of 
the  agreements  on  the  part  of  the  said  P.  A.  Marquam  and 
Emma  Marquam  hereinafter  contained  and  heretofore 
understood  between  the  parties  hereto,  said  The  Title 
Guarantee  &  Trust  Company  has  rendered  certain  serv- 
ices, and  has  advanced  and  will  advance  certain  sums  of 
money,  and  has  secured  for  said  P.  A.  Marquam  and 
Emma  Marquam  a  loan  in  the  sum  of  three  hundred 
thousand  dollars  ($300,000)  from  the  United  States  Mort- 
gage Company  of  New  York,  to  secure  the  repayment  of 
which  said  P.  A.  Marquam  and  Emma  Marquam  have  this 
day  made  their  certain  promisory  notes  for  principal  and 
interest  and  executed  their  mortgage  to  said  United  States 
Mortgage  Company,  covering  those  certain  parcels  of  real 
property  situated  in  the  County  of  Multnomah  and  State 
of  Oregon,  and  particularly  described  as  follows,  to  wit: 

First,  all  of  block  numbered  one  hundred  and  seventy- 
eight  (178),  containing  eight  lots,  in  the  City  of  Port- 
land, Oregon,  according  to  the  duly  recorded  map  or 
plat  thereof,  said  block  being  bounded  on  the  north  by 
Alder  Street,  on  the  east  by  Sixth  Street,  on  the  south 
by  Morrison  Street,  and  on  the  west  by  Seventh  Street, 
in  said  City  of  Portland  ;  and,  second,  all  of  that  portion 
of  the  John  Quinn  donation  land  claim,  particularly 
bounded  and  described  as  follows,  to  wit:  Beginning  fif- 
teen (15)  chains  north  of  the  southeast  corner  of  section 
twenty-five  (25),  in  township  one  (1),  north  of  range 
one  (1),  east  of  the  Willamette  Meridian,  and  from 
thence  running  east  eleven  (11)  chains  and  ninety-four 
(94)  links;  thence  north  twenty-five  (25)  chains ;  thence 
west  thirty-two  (32)  chains;  thence  south  twenty-five 
(25)  chains;  thence  east  twenty  chains  and  six  (6)  links, 
to  the  place  of  beginning,  containing  eighty  acres  of 
land. 


392  Marquam  t;.  Ross.  [47  Or. 

And,  Whereas,  in  consideration  of  securing  said  loan, 
and  of  the  premises,  said  P.  A.  Marquara  and  Emma  Mar- 
quam have  granted  and  conveyed  by  deed  to  said  The 
Title  Guarantee  &  Trust  Company  in  secret  trust  for  the 
purposes  hereinafter  set  out,  all  of  lots  numbered  one  (1), 
two  (2),  three  (3)  and  four  (4),  in  block  numbered  one 
hundred  and  twenty  (120),  in  said  City  of  Portland,  in  the 
County  of  Multnomah,  and  State  of  Oregon,  and  also  all 
of  said  property  described  in  said  mortgage  to  said  United 
States  Mortgage  Company,  subject,  however,  to  said  mort- 
gage. 

Now,  Therefore,  This  is  to  Certify  that  it  is  hereby 
mutually  understood  and  agreed  by  and  between  the  par- 
ties hereto  that  said  P.  A.  Marquam  and  Emma  Marquam 
will  pay  to  said  The  Title  Guarantee  &  Trust  Company  the 
sum  of  four  thousand  five  hundred  dollars  ($4,500)  for 
exchange,  title  insurance,  abstract  of  title  and  brokerage, 
in  the  matter  of  said  loan  of  $300,000,  and  that  during  the 
life  of  the  trust  estate  hereinbefore  mentioned,  they,  said 
P.  A.  Marquam  and  Emma  Marquam,  will  pay  said  The 
Title  Guarantee  &  Trust  Company  for  its  services  in  the 
financial  management  and  financial  oversight  of  said  trust 
property  the  sum  of  one  thousand  dollars  ($1,000)  per 
annum;  and  the  further  sum  of  three  per  centum  (3%) 
commissions  on  all  collections  made  in  the  matter  of  said 
trust  after  October  thirty-first,  1894,  except  on  the  collec- 
tion of  said  $300,000  indebtedness  and  interest  falling  due 
to  said  United  States  Mortgage  Company,  and  in  further 
consideration  of  the  premises  and  of  said  services  rendered 
and  to  be  rendered,  they,  said  P.  A.  Marquam  and  Emma 
Marquam,  will  pay  unto  said  the  Title  Guarante  &  Trust 
Company  monthly  during  the  life  of  said  trust  estate  a 
one  sixth  part  of  the  net  receipts  of  the  income  derived 
from  said  trust  property  covered  by  said  mortgage  to  the 
United  States  Mortgage  Company,  received  monthly  in 
excess  of  the  present  net  monthly  income  derived  there- 
from ;  this  present  net  monthly  income  for  the  purposes 
of  this  agreement  being  now  estimated  and  agreed  to  be 
one  thousand  five  hundred  dollars  ($1,500),  and  this  said 
one-sixth  to  be  computed  in  the  following  manner  to  wit: 
From  the  gross  monthly  income  derived  from  said  trust 


July,  1905,]  Marquam  v.  Ross.  393 

property  covered  by  said  mortgage  to  the  United  States 
Mortgage  Company,  during  each  successive  month  of  the 
life  of  said  trust  there  must  first  be  deducted  the  amount 
of  said  present  net  monthly  income  of  $1,500,  and,  sec- 
ondly the  operating  expenses  for  each  respective  month 
pertaining  to  said  trust  property  covered  by  said  mortgage 
to  the  United  States  Mortgage  Company,  to  wit:  The  cost 
of  superintendents,  engineers,  firemen,  janitors,  porters, 
watchmen,  laborers  and  teams,  of  fuel  and  light,  and  of 
janitor's  supplies,  and  of  other  incidental  supplies  and 
repairs,  not  including,  however,  any  material  alteration, 
improvement  or  repair  of  any  portion  of  said  property, 
and  then  to  divide  this  amount  which  remains,  if  any  there 
be,  into  six  equal  parts,  one  of  which  shall  be  the  one- 
sixth  (1-6)  hereinbefore  referred  to. 

And  it  is  Further  Heveby  Agreed  in  further  considera- 
tion of  the  premises  that  during  the  life  of  said  trust  said 
The  Title  Guarantee  &  Trust  Company  shall  have  absolute, 
entire  and  exclusive  control  and  management  of  said  prop- 
erty held  in  trust  as  aforesaid,  and  covered  by  said  mort- 
gage to  the  United  States  Mortgage  Company  for  the  uses 
and  purposes  hereinafter  set  out,  except  that  it  is  agreed 
that  the  Marquam  Building,  situate  on  part  of  said  prop- 
erty shall  only  be  used  as  an  office  and  store  building  and 
not  as  a  lodging  house,  and  that  in  said  matter  it  shall  be 
under  no  obligation  to -said  P.  A.  Marquam  and  Emma 
Marquam  to  keep  the  buildings  on  said  property  held  in 
trust  and  covered  by  said  mortgage  to  the  tjnited  States 
Mortgage  Company  rented  and  to  increase  or  to  keep  said 
monthly  income  up  to  said  present  estimated  basis  of 
$1,500,  other  than  it  shall  exercise  every  reasonable  effort 
to  do  so  ;  but  it  is  understood  and  agreed  that  it  shall  take 
reasonable  care  of  said  property  covered  by  said  mortgage 
to  the  United  States  Mortgage  Corhpany  so  held  in  trust, 
and  that  during  the  life  of  said  trust  said  P.  A.  Marquam 
shall  have  free  of  charge  and  rent,  office  rooms  in  the 
Marquam  Building,  situate  on  part  of  said  trust  property 
equal  to  what  are  now  occupied  by  him  therein,  and  that 
when  the  theater  in  said  building  shall  be  leased,  the  lease 
shall  specify  that  the  theater  shall  only  be  run  as  a  first- 


394  Marquam  v.  Ross.  [47  Or. 

class  theater  and  that  a  box  therein  shall  be  reserved,  free 
of  charge,  for  the  use  of  said  P.  A.  Marquam. 

And,  Whereas,  under  that  certain  preliminary  agree- 
ment entered  into  between  P.  A.  Marquam  and  The  Title 
Guarantee  &  Trust  Company  and  others,  on  the  thirtieth 
day  of  October,  a.  d.  1894,  said  The  Title  Guarantee  &  Trust 
Company  did  agree  to  advance  for  said  P.  A.  Marquam 
when  said  loan  of  $300,000  should  be  consummated,  the 
funds  in  excess  of  said  loan  of  $300,000,  necessary  to 
defray  and  discharge  the  following  expenses  and  indebt- 
edness of  the  said  P.  A.  Marquam  named  in  said  prelimi- 
nary agreement,  to  wit :  The  mortgage  to  the  estate  of 
James  Phelan  of  two  hundred  and  fifty  thousand  dollars 
($250,000),  with  interest  and  costs  accruing  thereon,  and 
the  mortgage  to  Dr.  A.  Sonnenfeld  in  the  sum  of  twenty 
thousand  dollars  ($20,000),  with  interest  accruing  thereon 
and  taxes  for  the  year  1893,  on  said  property  covered  by  said 
mortgage  to  the  United  States  Mortgage  Company,  amount- 
ing to  four  thousand  one  hundred  dollars  ($4,100),  and 
costs  and  the  indebtedness  of  the  said  P.  A.  Marquam  and 
Emma  Marquam  for  repairs  made  on  the  roof  of- said  Mar- 
quam Building,  amounting  to  eight  hundred  and  twenty- 
five  dollars  ($825),  and  the  fire  insurance  premiums  for 
policies  of  fire  insurance  covering  the  buildings  on  said 
property  covered  by  said  mortgage  to  the  United  States 
Mortgage  Company  coming  due  and  amounting  to  three 
thousand  one  hundred  dollars  ($3,100)  and  the  sum  of 
$4,500,  coming  due  by  said  P.  A.  Marquam  and  Emma 
Marquam  to  said  The  Title  Guarantee  &  Trust  Company 
for  exchange,  title  insurance,  abstract  of  title  and  broker- 
age, the  expense  in  the  matter  of  securing  said  loan  of 
$300,000,  and  a  cash  payment  of  three  thousand  six  hun- 
dred dollars  ($3,600)  on  the  indebtedness  of  said  P.  A. 
Marquam  to  George  B. -Ellis  of  Riverside,  California; 

And,  Whereas,  it  may  be  necessary  in  the  matter  of  said 
trust  for  said  The  Title  Guarantee  &  Trust  Company  to 
from  time  to  time  advance  moneys  for  said  P.  A.  Marquam 
and  Emma  Marquam,  his  wife,  it  is  hereby  mutually  agreed 
that  when  any  of  said  advances  are  made  said  P.  A.  Mar- 
quam and  Emma  Marquam  shall  execute  their  joint  promis- 


July,  1905.]  Marquam  v.  Ross.  395 

sory  notes,  payable  to  the  order  of  said  The  Title  Guarantee 
&  Trust  Company  for  each  sum  so  advanced,  said  notes  to 
be  payable  on  or  before  two  years  after  the  respective  dates 
thereof,  unless  such  dates  of  maturity  shall  fall  on  a  day 
subsequent  to  the  maturity  of  said  1300,000  mortgage  to 
the  United  States  Mortgage  Company,  in  which  case  said 
notes  shall  be  drawn  so  as  to  fall  due  at  the  same  time  with 
said  mortgage  on  or  before  the  same  becomes  due. 

It  is  Hereby  Further  Understood  And  Agreed  by  the 
parties  hereto  that  the  uses  and  purposes  for  which  the 
said  trust  estate  shall  be  held  are  as  follows,  to  wit:  That 
said  lots  numbered  one  (1),  two  (2),  three  (3)  aud  four  (4), 
in  block  numbered  one  hundred  and  twenty  (120),  in  said 
City  of  Portland,  shall  be  held  in  trust  as  collateral  secur- 
ity in  the  premises,  the  rents  and  profits  thereof  during 
the  life  of  said  trust  being  for  the  benefit  of  said  P.  A.  Mar- 
quam and  Emma  Marquam,  and  the  care  and  management 
thereof  being  under  thecontrol  of  the  said  P.  A.  Marquam  ; 
and  that  the  remainder  of  said  trust  property,  to  wit :  The 
part  thereof  covered  by  said  mortgage  to  the  United  States 
Mortgage  Company  is  to  be  held  in  trust  by  said  The  Title 
Guarantee  &  Trust  Company  to  carry  out  the  purposes  of 
this  agreement,  and  to  collect  the  rents  and  profits  arising 
from  said  property,  for  the  following  purposes,  that  is  to 
say : 

First,  to  pay  the  expenses  and  charges  for  operating  said 
trust  property,  as  hereinbefore  set  out,  and  to  pay  for  nec- 
essary repairs  on  said  premises,  and  for  services  in  collect- 
ing rents,  and  to  pay  the  interest  on  said  loan  of  $300,000, 
to  said  United  States  Mortgage  Company,  and  all  taxes 
and  other  public  charges  on  said  property  and  on  the  said 
indebtedness ; 

Second,  to  pay  all  amounts  advanced  and  to  be  advanced 
by  said  The  Title  Guarantee  &  Trust  Company  for  said 
P.  A.  Marquam  and  Emma  Marquam  as  hereinbefore  set 
out,  with  interest  thereon  at  ten  per  centum  ; 

Third,  to  pay  pro  rata  the  indebtedness  of  said  P.  A. 
Marquam  to  said  George  B.  Ellis  hereinbefore  mentioned, 
said  indebtedness  being  evidenced  by  a  note  of  P.  A.  Mar- 
quam to  J,  M.  Wood,  dated  February  first,  1893,  and  upon 


396  Marquam  V,  Ross.  [47  Or. 

which,  after  endorsement  of  the  $3,600,  hereinbefore  re- 
ferred to,  there  is  unpaid  a  balance  of  four  thousand  one 
hundred  and  twenty-six  dollars  and  seventy-seven  cents 
($4,126.77),  and  interest  from  this  date  at  the  rate  of  ten 
per  cent  per  annum,  payable  semiannually,  and  if  not  so 
paid  to  be  compounded  semiannually, and  to  bear  the  same 
rate  of  interest  as  the  principal;  and  the  indebtedness  of 
said  P.  A.  Marquam  to  the  Portland  National  Bank  in  the 
sum  of  fourteen  thousand  three  hundred  and  ninety-seven 
dollars  and  twenty-five  cents  ($14,397.25),  as  evidenced  by 
two  promissory  notes  of  date  October  thirtieth,  1894,  the 
one  for  $7,397.25,  payable  one  year  after  date,  with  interest 
at  the  rate  of  ten  per  centum  (10%)  per  annum,  and  the 
other  for  $7,000,  payable  eighteen  months  after  date,  with 
interest  at  the  rate  of  ten  per  centum  (10%)  per  annum; 

Fourth,  to  pay  said  The  Title  Guarantee  and  Trust  Com- 
pany for  its  services  in  executing  said  trust;  and 

Fifth,  after  said  loan  of  $300,000,  made  by  the  United 
States  Mortgage  Company  shall  be  paid  off,  and  all  the 
requirements  of  said  trust  satisfied  and  complied  with, 
to  reconvey  all  of  said  property  covered  by  said  deed  of 
trust  to  said  P.  A.  Marquam,  so  that  he  shall  be  repossessed 
of  the  fee  thereof, and  the  said  Emma  Marquam  reinstated 
as  to  her  dower  therein,  it  being  understood  that  said  prop- 
erty when  so  conveyed  back  shall  be  returned  in  as  good 
order  and  repair  as  the  nature  of  this  trust  will  admit,  and 
that  if  at  any  time  all  moneys  to  be  paid  by  said  P.  A. 
Marquam  and  Emma  Marquam  as  set  out  in  this  agree- 
ment, exclusive  of  principal  and  unmatured  interest  on 
said  mortgage  to  the  United  States  Mortgage  Company, 
shall  be  paid,  then  that  portion  of  the  funds  arising  under 
said  trust  not  necessary  for  use  in  compliance  with  its 
terms,  shall-  be  thereafter  turned  over  quarterannually  to 
said  P.  A.  Marquam. 

In  Witness  Whereof,  said  P.  A.  Marquam  and  Emma 
Marquam  have  hereunto  set  their  hands  and  seals,  and 
said  The  Title  Guarantee  &  Trust  Company  has  hereunto 
caused  its  corporate  name  to  be  subscribed  and  its  corpo- 
rate seal  to  be  affixed  for  and  on  its  behalf  as  its  act  and 


July,  1905.]  Marquam  v.  Ross.  397 

deed,  by  its  secretary,  in  accordance  with  due  authority 
in  him  vested  by  its  board  of  directors. 

P.  A.  Marquam.       [seal] 
Executed  in  pres-  Emma  Marquam.     [seal] 

ence  of  P.  P.  Dabney.  The  Title  Guarantee  & 

[CORP.  seal]  Trust  Company, 

By  J.  Thorburn  Ross, 

Secretary." 

On  February  13, 1895,  a  supplementary  agreement  was 
made,  defining  more  clearly  the  powers  of  the  Title  Com- 
pany in  the  matter  of  the  renting  of  the  property,  but  its 
terms  are  unimportant  here.  Upon  the  execution  of  the 
papers  referred  to  the  Title  Company  advanced  about 
$18,000  from  its  own  funds,  being  the  amount  necessary 
in  excess  of  the  $300,000  borrowed  of  the  Mortgage  Com- 
pany to  pay  and  discharge  the  Marquam  indebtednss,  and 
went  immediately  into  possession.  Thereafter  it  managed 
and  controlled  the  property,  rented  the  same,  made  re- 
mittances from  time  to  time  to  the  Mortgage  Company  to 
apply  on  the  interest  notes  duo  it  from  the  plaintiff,  and 
rendered  statements  of  the  receipts,  disbursements  and 
advances  made  by  it  to  the  plaintiff  at  stated  intervals, 
which  statements  were  received  and  accepted  without  ob- 
jection. The  income  of  the  property  was  not  sufficient  to 
meet  the  charges  against  it,  and  the  Title  Company  for  a 
time  made  advances  from  its  own  funds  to  pay  the  interest 
notes  in  favor  of  the  Mortgage  Company  as  they  matured, 
until  the  indebtedness  due  it  from  the  plaintiff,  and  se- 
cured by  the  deed  and  contract  referred  to,  amounted  to 
from  $35,000  to  $40,000.  It  declined  to  make  further  ad- 
vances, and  default  was  made  in  the  payment  of  the  in- 
terest notes  to  jihe  Mortgage  Company  falling  due  Febru- 
ary 13,  May  13,  and  August  13, 1899.  On  October  30th  of 
that  year  the  Mortgage  Company  declared  the  entire  debt 
due,  and  commenced  a  suit  in  the  circuit  court  for  Mult- 


398  Marquam  v.  Ross.  [47  Or, 

nomah  County  to  foreclose  its  mortgage,  making  plaintiff 
herein  and  the  Title  Company  parties  defendant  to  the 
suit. 

The  plaintiff  answered  in  abatement,  denying  the  Mort- 
gage Company's  authority  to  declare  the  principal  sum 
due  for  the  nonpayment  of  interest,  and  setting  up  that 
the  Title  Company  was  the  agent  of  the  Mortgage  Com- 
pany;  that,  as  a  part  consideration  for  the  loan,  the  agree- 
ment was  entered  into  between  plaintiff  and  the  Title 
Company,  as  hereinbefore  set  forth ;  that  the  Title  Com- 
pany had  collected  sufficient  funds,  over  and  above  the 
expenses  and  cost  of  management  of  the  property,  with 
which  to  pay  the  interest  notes,  but  had  misapplied  and 
misappropriated  them, in  violation  of  its  agreement;  that 
by  neglecting  its  duty  it  had  failed  to  collect  as  large  a 
sum  for  rentals  as  it  could  and  should  have  collected ;  and 
that  an  accounting  was  necessary  to  a  proper  determina- 
tion of  the  matter.  For  a  further  defense  it  was  alleged 
that  the  Title  Company,  while  acting  as  agent  for  the 
Mortgage  Company,  at  its  instance  and  with  its  approval, 
but  without  the  consent  of  the  plaintiff,  made  sundry 
leases  in  violation  of  its  trust.  The  prayer  was  for  a  dis- 
missal of  the  suit.  The  material  allegations  of  the  plea 
were  denied,  and  upon  a  trial  it  was  found,  among  other 
things,  that  the  trust  agreement  was  not  a  part  of  the  con- 
tract with  the  Mortgage  Company  for  the  loan,  and  the 
Mortgage  Company  was  not  a  party  thereto ;  that  the  Title 
Company  was  not  an  agent  of  the  Mortgage  Company,  so 
far  as  it  related  to  the  trust  agreement,  nor  had  it  collected 
rents  and  profits  sufficient,  w^hen  applied  as  stipulated  in 
the  agreement,  to  pay  any  part  of  the  interest  notes  ma- 
turing February  13,  May  13,  August  13  and  November 
13,  1899,  nor  had  it  misapplied  or  misappropriated  any 
part  thereof. 


July,  1905.]  Marquam  v.  Ross.  398 

The  plaintiff  here  thereupon,  by  permission  of  the  court, 
answered  to  the  merits,  alleging  that  the  trust  agreement 
was  entered  into  as  a  part  consideration  for  the  loan  made 
by  the  Mortgage  Company;  that  for  a  long  time  prior  to 
the  date  of  the  mortgage  and  agreement  the  Title  Com- 
pany had  been  and  was  the  agent  of  the  Mortgage  Com- 
pany for  making  loans  and  investments  of  its  money  and 
remitting  the  interest  under  an  agreement  that  it  should 
charge  and  collect  from  the  parties  to  whom  the  money 
had  been  loaned  a  reasonable  compensation  for  its  services; 
that  the  loan  to  the  plaintiff  was  made  in  pursuance  of  this 
agreement,  and  that  the  so-called  trust  agreement  was  en- 
tered into  for  the  benefit  of  the  Mortgage  Company,  to 
enable  it  to  collect  and  receive  interest  in  excess  of  that 
allowed  yearly;  that  by  reason  thereof  it  had  received  un- 
lawful and  usurious  interest  on  the  loan,  and  it  was  there- 
fore void,  and  the  principal  sum  should  be  forfeited  to  the 
school  fund.  For  a  second  defense  he  alleged,  as  in  the 
plea  in  abatement,  that  leases  had  been  made  by  the  Title 
Company  extending  beyond  the  date  of  the  maturity  of 
the  mortgage,  at  the  instance  and  by  the  consent  of  the 
mortgagee,  and  the  lien  of  the  mortgage  was  thereupon 
waived,  and  the  Mortgage  Company  estopped  to  foreclose 
the  same.  For  a  third  defense  he  alleged  that  the  con- 
veyances and  agreement  operated  as  a  general  assignment 
of  his  property,  and  were  void  because  not  made  for  the 
benefit  of  all  his  creditors.  This  answer  was  held  insuffi- 
cient on  demurrer. 

On  November  6th  the  Title  Company  filed  a  cross-com- 
plaint, setting  up  the  trust  agreement  and  itsoperations'and 
doings  thereunder,  that  it  had  made  large  advances  to 
plaintiff  and  wife  from  time  to  time,  and  taken  their  notes 
therefor,and  had  made  other  advances,  for  which  notes  had 
not  been  given,  and  had  rendered  to  them  from  time  to 
time  statements  of  account,  which  had  been  approved  and 


400  Marquam  v.  Ross.  [47  Or. 

settled,  and  that  at  the  date  of  filing  the  cross-complaint 
there  was  due  and  owing  from  plaintiff  to  it  a  large  sum 
of  money,  amounting  to  $40,897.81,  with  accrued  interest, 
which  was  a  lien  on  the  mortgaged  property,  and  praying 
for  a  foreclosure  of  such  lien.  The  plaintiff  answered  this 
cross-complaint,  denying  the  allegations  thereof  and  set- 
ting up  the  ti^ust  agreement,  averring  that  the  require- 
ments of  the  trust  had  not  been  fully  satisfied,  and  it  had 
not  yet  terminated ;  that  by  the  terms  thereof  the  Title 
Company  was  obliged  to  make  further  advances  and 
render  further  services,  and  the  trust  must  yet  continue 
for  a  further  period.  For  a  second  defense  he  averred 
that  the  Title  Company  was  in  possession  of  the  property, 
assuming  and  pretending  to  be  engaged  in  the  perform- 
ance of  its  duties  under  the  trust.  For  a  third  defense  he 
alleged  that  the  Title  Company  had  been  negligent  in 
leasing  the  property,  to  his  damage  in  the  sum  of  $50,000; 
and  for  a  fourth  that  he  had  been  damaged  a  large  sum 
by  reason  of  the  failure  of  the  Title  Company  to  pay  the 
taxes  on  the  property,  for  which  reasons  it  was  sought  to 
have  the  cross-complaint  dismissed,  an  accounting  had, 
and  the  trust  wound  up. 

After  a  trial  upon  the  merits  the  court  found  that  the 
Title  Company  had,  from  time  to  time,  and  frequently 
during  its  control  and  management  of  the  property,  and 
as  late  as  June  13,  1899,  rendered  statements  of  account 
to  the  plaintiff,  whereby  it  fully  disclosed  and  truly  stated 
the  matters  of  account  between  them  arising  out  of  the 
trust :  that  no  objections  were  ever  made  thereto  prior  to 
the  month  of  July,  1899;  and  that  on  the  13th  of  May, 
1900,  there  was  due  the  Title  Company  from  the  plaintiff 
$24,188.33,  exclusive  of  attorney's  fees;  that  the  Title 
Company  had  been  prudent,  careful  and  diligent  in  rent- 
ing the  various  properties,  and  in  conducting  and  man- 
aging the  trust,  and  had  been  guilty  of  none  of  the  negli- 


July,  1905.]  Marquam  v.  Ross.  401 

gence,  carelessness  or  malfeasance  specified ;  that  the  trust 
agreement  had  been  fully  carried  out  and  completed ;-  that 
it  was  in  effect  a  mortgage,  and  constituted  the  Title  Com- 
pany a  mortgagee  in  possession.  A  dec^ree  was  thereupon 
rendered  against  the  plaintiff,  in  favor  of  the  Mortgage 
Company,  for  $345,875.66,  principal  and  interest,  exclu- 
sive of  attorney's  fees  and  costs;  the  Title  Company,  for 
$21,511.42;  W.  S.  Mason,  for  $14,397.25;  and  George  B! 
Ellis,  for  $4,126.77 — besides  attorney's  fees  and  costs,  and 
ordering  that  the  mortgage  be  foreclosed,  the  mortgaged 
property  sold  in  the  manner  provided  by  law,  and  the 
proceeds  applied  in  payment  of  the  costs  of  the  suit  and 
accruing  costs  and  the  several  judgments  in  the  order  of 
their  priority.  Execution  was  subsequently  issued  on  the 
decree  by  order  of  the  court,  and  the  mortgaged  property 
was  sold  by  the  sheriff  of  Multnomah  County  to  the  defend- 
ant Ross,  as  trustee  for  the  Title  Company,  on  December 
10,  1900;  he  being  the  highest  and  best  bidder  therefor. 
A  short  time  afterward  the  Title  Company  was  required 
by  the  court  to  render  a  final  statement  of  its  accounts  as 
trustee,  which  were  approved,  and  the  company  was  dis- 
charged. The  sale  to  Ross  .was  subsequently  confirmed, 
and  after  due  time  a  sheriff's  deed  was  made  to  him. 
Appeals  were  taken  by  the  plaintiff  from  the  decree  in  the 
foreclosure  suit  and  the  order  confirming  the  sale,  both  of 
which  were  affirmed  :  United  States  Mortg.  Co,  v.  Marquam^ 
41  Or.  391  (69  Pac.  37,  41).  The  Title  Company  afterward 
caused  the  defendant  the  Oregon  Company  to  be  organized 
by  its  officers  and  agents,  and  at  its  instigation  Ross  con- 
veyed the  property  to  the  latter  company.  In  November, 
1902,  this  suit  was  brought  for  the  purpose  of  having  the 
defendants  declared  to  hold  the  title  to  the  property  in 
trust  for  the  plaintiff,  and  for  permission  to  redeem,  on 
the  ground  that  the  relations  between  the  plaintiff  and  the 

47  Ob. 26 


402  Marquam  v.  Ross.  [47  Or. 

Title  Company  at  the  time  the  purchase  was  made  by  Ross 
were  such  that  it  could  not  purchase  for  its  own  benefit, 
and  that  the  foreclosure  sale  was  procured  and  instigated 
by  its  wrongful  act.  The  plaintiff  had  decree,  and  the 
defendants  appeal.  Reversed. 

For  appellants  there  were  briefs  over  the  names  of  Wal- 
lace McCamanty  William  Paine  Lord  and  Zera  Snow^  with 
oral  arguments  by  Mr.  McCamant  and  Mr,  Lord, 

For  respondent  there  were  briefs  over  the  names  of  Wat- 
aouy  Beekman  &  Watson,  W,  D,  Fenton  and  Mitchell  &  Tan- 
ner, with  oral  arguments  by  Mr,  Edward  Byers  Watson  and 
Mr,  William  David  Fenton, 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

2.  We  are  strongly  impressed  with  the  view  that  the 
decrees  in  the  suit  brought  by  the  Mortgage  Company  to 
foreclose  its  mortgage  are  a  bar  to  this  proceeding.  The 
plaintiff  and  the  Title  Company  were  both  parties  to  that 
suit,  and  both  answered.  The  Title  Company  set  up  the 
contract  between  it  and  the  plaintiff,  its  doings  thereunder, 
the  amount  of  advances  made  by  it,  claimed  a  lien  on  the 
property  therefor,  and  prayed  a  foreclosure  thereof.  The 
plaintiff  joined  issue  on  the  answer,  averred  that  the  trust 
relation  had  not  terminated,  but  must  continue  for  an 
indefinite  period,  and  that  the  Title  Company  had  been 
unfaithful  to  its  trust.  The  question  of  the  relationship 
of  the  Title  Company  to  the  plaintiff  and  the  property, 
and  the  manner  in  which  it  had  discharged  its  trust  were 
therefore  put  in  issue,  and  fully  tried  and  determined  in 
that  suit.  It  was  adjudged  and  decreed  that  the  Title 
Company  had  been  faithful  to  its  trust,  and  had  properly 
accounted  for  all  moneys  received  by  it  on  account  thereof; 
that  it  was  in  effect  a  mortgagee  in  possession,  and  had  a 
lien  on  the  property  for  the  amount  advanced  by  it,  which 
lien  was  foreclosed  and  the  property  ordered  sold  to  satisfy 


July,  1905.]  Marquam  v,  Ross.  403 

the  same.  The  questions  thus  determined  are  the  ones 
sought  to  be  litigated  in  this  case,  and  the  decree  would 
seem,  therefore,  to  be  a  complete  determination  of  the 
rights  of  the  parties,  and  a  bar  to  subsequent  litigation 
between  them  upon  the  same  claim  or  deman(}:  Ruckman 
V.  Union  Ry.  Co.,  45  Or.  578  (78  Pacr  748).  On  account  of 
the  importance  of  the  case,  however,  the  amount  involved, 
and  the  zeal  and  learning  exhibited  by  counsel  on  both 
sides,  we  have  examined  and  decided  the  case  on  the 
merits,  regardless  of  the  effect  of  the  former  adjudication. 
The  argument  has  taken  a  wide  range,  but  the  considera- 
tion of  many  questions  which  have  been  ably  and  exhaust- 
ively discussed  is  rendered  unnecessary  by  the  view  we 
have  taken  of  the  matter. 

The  principal,  and,  indeed,  the  controlling,  question  is 
whether  the  Title  Company,  at  the  time  of  the  sale  under 
the  decree  in  the  foreclosure  suit  brought  by  the  Mortgage 
Company,  sustained  such  a  relation  to  the  property  or  to 
the  plaintiff  that  it  was  disqualified  under  the  law  from 
purchasing  for  its  own  benefit.  The  contention  of  the 
plaintiff  upon  this  point  involves  substantially  two  propo- 
sitions: (1)  That  under  the  contracts  between  him  and 
the  Title  Company  the  latter  became  a  trustee  of  the  title 
to  the  property  in  question,  and  that,  such  relation  not 
having  been  terminated  at  the  time  of  the  sale,  it  was  dis- 
qualified to  bid  or  to  purchase  such  property  on  its  own 
account;  (2)  that,  if  the  trust  had  terminated  and  the 
trust  relation  ended,  the  Title  Company  had  been  guilty 
of  breaches  of  duty  during  its  existence,  designed  to  and 
which  did  bring  about  the  foreclosure  and  sale,  which 
made  it  a  trustee  ex  maleficio.  The  court  below  held  upon 
the  testimony  that  the  Title  Company  had  in  every  respect 
been  faithful  to  its  duty,  and  guilty  of  no  breaches  of  trust, 
but,  as  a  matter  of  law,  it  was  disqualified  to  purchase, 


404  Marquam  v.  Ross.  [47  Or. 

because  of  the  relationship  existing  between  it  and  the 
plaintiff  at  the  time  of  the  sale. 

3.  It  is  a  familiar  rule  of  law  that  a  purchase  by  a  trus- 
tee or  person  occupying  a  fiduciary  position,  in  contraven- 
tion or  violation  of  his  duties,  is  in  equity  made  for  the 
benefit  of  the  cestui  que  trust,  at  his  election,  regardless  of 
the  amount  paid,  or  whether  there  was  actual  fraud  or  not. 
In  such  a  case  the  court  will  not  try  the  question  of  the 
bona  fides  of  the  purchaser  or  the  adequacy  of  the  consid- 
eration. The  fiduciary  character  of  the  purchaser,  when 
the  circumstances  are  such  that  to  allow  him  to  purchase 
for  himself  would  tempt  him  to  act  for  the  protection  of 
his  own  interest  and  the  consequent  injury  of  those  whom, 
as  trustee,  he  is  bound  to  protect  and  serve,  will  be  suffi- 
cient. It  is  enough  that  there  is  a  conflict  between  duty 
and  self-interest.  The  law  will  not  allow  the  matter  of 
self-gain  to  stand  as  a  temptation  to  misconduct  in  the 
discharge  of  the  duty  growing  out  of  the  fiduciary  relation. 
A  trustee  will  not  be  permitted  to  subject  himself  to  the 
temptation  which  arises  out  of  the  conflict  between  the 
interest  of  a  purchaser  and  his  duty  as  a  trustee:  28  Am. 
&  Eng.  Enc.  Law  (2  ed.),  1016;  4  Kent,  Comm.  *438;  1 
Story,  Equity  (13  ed.),§322;  1  Perry,  Trusts  (5  ed.),  §  205; 
Davoue  v.  Fanning^  2  Johns.  Ch.  252. 

A  trustee  with  a  power  of  sale  cannot  therefore  purchase 
at  his  own  sale.  Neither  can  a  trustee  whose  duty  it  is  to 
convert  the  trust  property  into  money  for  the  benefit  of  his 
principal  or  his  creditors  purchase  at  a  sale  made  by  him- 
self or  by  his  direction,  or,  under  many  authorities,  upon 
a  judgment  or  decree  based  upon  a  paramount  title  or  ad- 
verse proceeding :  Van  Eppa  v.  Van  Eppa,  9  Paige,  237 ; 
Jewett  V.  Miller,  10  N.  Y.  402,  405  (65  Am.  Dec.  751);  l>a- 
voue  V.  Fanning,  2  Johns.  Ch.  252 ;  Downs  v.  Richarda^A  Del. 
Ch.  416;  Lewis  v.  Welch,  47  Minn.  193  (48  N.  W.  608,  49 
N.  W.  665);  Carson  v.  Marshall,  37  N.  J.  Eq.  213 ;  Hamil 


July,  1905.]  Marquam  v.  Ross.  405 

ton  V.  Dooly,  15  Utah,  280  (49  Pac.  769);  Michoud  v.  Qirod, 
45  U.  S.  (4  How.)  503  (11  L.  Ed.  1076).  Upon  this  latter 
point  theI;^  is  a  sharp  conflict  in  the  decisions  (Earl  v. 
Halaeyy  14  N.  J.  Eq.  332 ;  Chorpenning's  Appeal,  32  Pa. 
315,  72  Am.  Dec.  789;  Anderson  v.  Butler,  31  S.  C.  183, 
9  S.  E.  797,  5  L.  R.  A.  166 ;  Allen  v.  Oillette,  127  U.  S.  589. 
596, 8  Sup.  Ct.  1331,  32  L.  Ed.  271 ;  Fiak  v.  Sarber,  6  Watts 
&  S.  18),  but  it  is  unnecessary  at  this  time  for  us  to  exam- 
ine the  adjudged  cases,  or  attempt  to  deduce  any  general 
rule  from  them,  if,  indeed,  it  is  possible  to  do  so.  It  will 
probably  be  found  on  investigation  that  the  decision  in 
each  case  depends  upon  the  application  of  the  general  rule 
of  disqualification  to  the  particular  facts,  and  that,  where 
there  was  a  conflict  between  duty  and  self-interest,  the 
purchase  was  held  voidable,  regardless  of  the  manner  in 
which  or  by  whom  the  sale  was  made,  and  where  there  was 
no  such  conflict,  it  was  upheld. 

The  decision  of  the  case  in  hand  depends  upon  the  con- 
struction of  the  contract  between  the  plaintiff  and  the  Title 
Company,  and  the  relation  which  the  parties  sustained  to 
each  other  by  reason  thereof.  When  we  have  arrived  at 
this  determination,  the  way  is  clear.  If  it  was  such  that 
there  was  a  conflict  between  duty  to  the  plaintiff  and  self- 
interest  of  the  Title  Company  at  the  time  of  the  sale  under 
the  foreclosure  decree,  the  plaintiff  must  prevail;  other- 
wise, his  suit  fails  on  this  branch  of  the  case.  In  constru- 
ing a  contract  the  object  is,  of  course,  to  ascertain  the 
intention  of  the  parties,  from  the  language  used,  in  the 
light  of  the  surrounding  circumstances.  Recurring,  then, 
briefly,  to  some  of  the  facts,  for  the  purpose  of  showing  the 
condition  of  things  prior  to  and*  at  the  time  of  the  execu- 
tion of  the  deed  from  plaintiff  to  the  Title  Company  and 
the  making  of  the  so-called  trust  agreement,  so  as  to  enable 
us  to  understand  better  their  object,  it  appears  that  at  the 
inception  of  the  negotiations.the  parties  were  dealing  with 


406  Marquam  v.  Ross.  [47  Or. 

each  other  at  arm's  length.  There  was  no  relation  of  trust 
or  confidence  between  them.  The  plaintiff  was  the  owner 
of  valuable  property,  which  was  heavily  incumbered  and 
about  to  be  sold  to  satisfy  the  liens  against  it.  He  had 
made  repeated  efforts,  without  success,  to  procure  money 
with  which  to  meet  his  obligations.  Under  these  circum- 
stances he  applied  to  Mr.  Ross,  the  manager  of  the  Title 
Company,  whose  assistance  he  invoked  in  extricating  his 
property  from  the  embarrassment  which  threatened  it,  a 
part  of  the  company's  business  being  to  procure  loans  for 
other  parties.  Ross  undertook  to  furnish  the  desired  aid 
through  the  Mortgage  Company,  his  correspondent  in  New 
York,  and  after  much  negotiation  finally  succeeded  in  pro- 
curing a  loan  of  $300,000  from  it.  This  sum  was  not  suflB- 
cient  to  satisfy  the  demands  against  the  plaintiff  and  his 
property.  Ross  accordingly  agreed,  at  the  plaintiff's  re- 
quest and  on  behalf  of  the  Title  Company,  to  make  certain 
advances,  amounting  to  about  $18,000,  to  meet  this  defi- 
ciency. 

To  secure  the  payment  of  the  loan  and  the  advances 
made  and  to  be  made  by  the  Title  Company  was  the  pri- 
mary object  and  purpose  of  the  several  instruments.  To 
accomplish  this,  plaintiff  gave  a  mortgage  to  the  Mortgage 
Company  direct,  and  made  and  delivered  a  deed,  absolute 
in  form,  to  the  Title  Company  and  the  so-called  trust 
agreement  for  the  purpose  of  impounding  the  rents  and 
revenues  from  the  mortgaged  property.  These  several  in- 
struments were  entered  into  contemporaneously,  and  as  a 
part  of  the  same  transaction.  Their  sole  object  and  pur- 
pose was  to  secure  the  payment  of  the  money  borrowed 
from  the  Mortgage  Company,  and  that  which  was  advanced 
and  to  be  advanced  by  the  Title  Company,  the  payment  of 
the  cost  of  maintaining  and  operating  the  property,  the 
agreed  compensation  for  the  services  of  the  Title  Company 
in  its  management  and  control,  the  taxes  thereon,  and  cer- 


July,  1905.]  Marquam  «.  Ross.  407 

tain  indebtedness  to  Ellis  and  the  Portland  National  Bank. 
That  such  was  the  purpose  pf  the  transaction  is  apparent 
from  the  language  of  the  agreement,  providing  for  the  re- 
conveyance of  the  property  to  the  plaintiff  upon  the  pay- 
ment of  the  indebtedness,  and  from  the  relation  of  the 
parties.  They  were  dealing  with  each  other  as  borrower 
and  lender,  not  as  trustee  and  cestui  que  trust.  The  desire 
of  the  plaintiff  was  to  secure  funds  with  which  to  pay  and 
discharge  the  incumbrances  against  his  property,  in  order 
to  prevent  a  forced  sale  thereof.  The  object  of  the  Title 
Company  was  to  obtain  security  for  the  money  loaned  by 
the  Mortgage  Company,  and  for  such  as  might  be  advanced 
by  it. 

4.  The  fact  that  one  of  the  instruments  that  was  given 
to  accomplish  this  purpose  is  in  form  an  absolute  deed, 
and  the  other  is  denominated  a  "trust  agreement,"  does 
not  change  their  legal  effect.  A  deed  or  agreement  of  trust, 
intended  as  security  for  a  debt,  performs  the  office  of  a 
mortgage,  and  is  in  effect  nothing  more  than  a  mortgage. 
The  fact  that  it  is  absolute  in  form  does  not  change  its 
character  from  a  security  to  an  absolute  conveyance. 
When  it  appears  that  the  instrument  is  intended  as  secu- 
rity for  the  payment  of  money,  it  will  be  treated  and 
deemed  in  equity  as  a  mortgage,  whatever  its  form.  This 
rule  has  been  so  often  announced  and  enforced  by  this 
court  that  a  mere  citation  of  the  authorities  will  suffice: 
Hurford  v.  Earned,  6  Or.  362;  Stephens  v.  Allen,  11  Or.  188 
(3  Pac.  168);  Thompson  v.  Marshall,  21  Or.  171  (27  Pac. 
957);  Adair  v.  Adair,  22  Or.  115, 132  (29  Pac.  193);  Marx 
V.  La  Rocque,  27  Or.  45  (39  Pac.  401);  Security  Trust  Co. 
V.  Loewenherg,  38  Or.  159  (62  Pac.  647). 

The  agreement  and  deed  were  executed  contemporane- 
ously, as  a  part  of  the  same  transaction,  and  are  in  legal 
effect  but  one  instrument.  The  declaration  that  the  con- 
veyance was  made  "in  secret  trust,"  to  collect  the  rents 


408  Marquam  v.  Ross.  [47  Or. 

and  profits  for  the  purpose  of  paying  the  cost  of  operating 
and  maintaining  the  property  and  certain  specified  indebt- 
ednesses of  the  plaintiff,  and  the  provision  for  a  reconvey- 
ance upon  the  performance  of  the  conditions  imposed, 
show  that  the  deed  was  not  intended  as  an  absolute  and 
indefeasible  conveyance.  By  an  absolute  deed  of  trust  the 
grantor  parts  with  the  title,  which  vests  in  the  grantee 
unconditionally  for  the  purposes  of  the  trust,  with  no  right 
of  recon  veyanceto  the  grantor  {Ladd  v.  JohnsoUy  32  Or.  195, 
49  Pac.  756);  but  a  deed  of  trust,  designed  as  security  for 
money,  creates  a  mere  lien,  and  is  in  legal  effect  a  mort- 
gage :  Thompson  v.  Marshall,  21  Or.  171  (27  Pac.  957).  It 
seems  to  us,  therefore,  that  the  Title  Company's  relation 
to  the  property,  under  the  law  and  the  facts,  was  that  of 
a  mortgagee  in  possession,  with  certain  added  duties  and 
obligations,  arising  out  of  a  special  contract,  rather  than 
as  a  trustee  of  the  title;  and  such  was  in  effect  the  hold- 
ing of  this  court  in  the  former  case:  United  States Mortg, 
Co.  V.  Marquam,  41  Or.  391  (69  Pac.  37,  41). 

5.  And  a  mortgagee  in  possession  ip  not  such  a  trustee 
as  will  prevent  him  from  purchasing  the  mortgaged  prop- 
erty at  a  public  sale :  Ten  Eyck  v.  Craig,  62  N.  Y.  406.  If, 
however,  it  be  deemed,  as  held  in  Title  Guarantee  &  T.  Co, 
v.  Northern  C.  Invest.  Trust  (C.  C.)  73  Fed.'93l,  that  the  title 
passed  by  the  deed  from  the  plaintiff  to  the  Title  Company, 
as  against  strangers,  the  rights  of  the  Title  Company  in 
the  property  and  of  the  parties  as  between  themselves  were 
fixed  and  defined  by  the  so-called  trust  agreement.  The 
case  stands  exactly  as  if  such  trust  agreehient  had  been 
embodied  in  and  made  a  part  of  the  deed  of  conveyance. 
Unless,  therefore,  it  imposed  duties  upon  the  Title  Com- 
pany which  were  in  conflict  with  its  right  to  protect  its 
own  lien  for  advances  made  and  to  be  made  by  purchasing 
at  the  foreclosure  sale,  its  title  must  be  upheld. 


July,  1905.]  Marquam  v.  Ross.  .  409 

6.  Now,  when  we  turn  to' this  agreement,  we  find  that 
it  did  not  vest  the  Title  Company  with  power  of  sale  of  the 
mortgaged  property,  nor  did  it  require  it  to  convert  the 
property  into  money,  or  authorize  or  empower  it  to  do  so. 
It  did  not  purport  to  affect  the  title  in  any  way,  but  only 
the  possession  and  the  right  to  the  income.  The  agree- 
ment recites  the  mortgage  to  secure  the  payment  of  $300,- 
000  to  the  Mortgage  Company,  the  conveyance  of  the 
mortgaged  property  to  the  Title  Company,  **in  considera- 
tion of  securing  the  loan  *  *  in  secret  trust  for  the  pur- 
poses hereinafter  set  out,"  stipulating  the  compensation 
to  be  paid  the  Title  Company  for  its  services  in  the  mat- 
ter of  the  control  and  management  of  the  property  and 
the  collection  and  disbursement  of  the  rents  and  profits, 
and  the  agreement  of  the  Title  Company  to  advance  suflB- 
cient  funds  which,  with  the  $300,000  borrowed  from  the 
Mortgage  Company,  would  pay  and  discharge  certain  spec- 
ified indebtednesses  of  the  plaintiff ,  for  which  plaintiff  and 
wife  agreed  to  — 

"Execute  their  joint  promissory  notes,  payable  to  the 
order  of  said  The  Title  Guarantee  &'  Trust  Company  for 
each  sum  so  advanced,  said  notes  to  be  payable  on  or  be- 
fore two  years  after  the  respective  dates  thereof,  unless 
such  dates  of  maturity  shall  fall  on  a  day  subsequent  to 
the  maturity  of  said  $300,000  mortgage  to  the  United 
States  Mortgage  Company,  in  which  case  said  notes  shall 
be  so  drawn  so  as  to  fall  due  at  the  same  time  with  said 
mortgage  or  before  the  same  becomes  due." 

The  agreement  then  further  provides: 

**It  is  hereby  further  understood  and  agreed  by  the  par- 
ties hereto  that  the  uses  and  purposes  for  which  said  trust 
estate  shall  be  held  are  as  follows": 

The  four  lots  in  block  120,  **as  collateral  security,"  the 
control  and  management  thereof  to  be  in  the  plaintiff,  and 
the  rent?  and  profits  to  go  to  him ;  the  remainder  of  the 
property  "to  carry  out  the  purposes  of  this  agreement,  and 


410  .  Marquam  v.  Ross.  [47  Or. 

to  collect  the  rents  and  profits  arising  from  said  property, 
for  the  following  purposes  :     *  * 

First,  to  pay  the  expenses  and  charges  for  operating  said 
trust  property,  *  *  pay  for  necessary  repairs  on  said 
premises,  and  for  services  in  collecting  rents,  and  to  pay 
the  interest  on  said  loan  of  $300,000  to  said  United  States 
Mortgage  Company,  and  all  taxes  and  other  public  charges 
on  said  property  and  on  the  said  indebtedness. 

Second,  to  pay  all  amounts  advanced  and  to  be  advanced 
by'*  the  Title  Company,  "with  interest.  *  * 

•Third,  to  pay  pro  rata  the  indebtedness  of"  the  plain- 
tiff "to  said  George  B.  Ellis,''  and  the  ^'Portland  National 
Bank.  *  * 

Fourth,  to  pay"  the  Title  Company  for  its  services  in 
executing  the  said  trust;  and 

Fifth,  after  said  loan  of  $300,000  *  ♦  shall  be  paid  off, 
and  all  the  requirements  of  said  trust  satisfied  and  com- 
plied with,  to  reconvey  all  of  said  paid  property,  etc.,  to 
the  plaintiff. 

It  will  thus  be  seen  that  the  trust  created  by  the  agree- 
ment was  confined  to  the  mere  possession  of  the  property, 
and  was  limited  to  its  management  for  the  purpose  of  col- 
lecting and  disposing  of  the  rents  and  profits  for  certain 
specified  objects.  It  was  simply  a  part  of  the  scheme  for 
securing  the  payment  of  the  loan  from  the  Mortgage  Com- 
pany, the  advances  made  and  to  be  made  by  the  Title 
Company,  and  other  specified  indebtedness  of  the  plain- 
tiff, by  impounding  the  rents  and  profits  of  the  property 
as  additional  security  therefor.  It  and  the  deed  were  in- 
tended to  serve  a  double  purpose  —  to  furnish  security  by 
a  lien  upon  the  property  for  the  money  advanced  by  the 
Title  Company  and  the  indebtedness  to  Ellis  and  the  bank, 
and  to  provide  a  means  of  paying  interest,  taxes,  repairs, 
etc.,  out  of  the  rents,  issues  and  profits,  and,  if  not  suflS- 
cient,  then  out  of  the  proceeds  of  the  property  itself.    The 


July,  1905.]  Marquam  v.  Ross.  411 

first  purpose  was  provided  for  by  the  deed,  and  the  latter 
by  the  agreement.  There  being  no  power  or  authority 
vested  in  the  Title  Company  to  sell,  convey  or  dispose  of 
the  corpus,  there  was  no  means  provided  by  which  it  could 
make  the  amount  of  its  lien  for  advances,  if  the  rents, 
issues  and  profits  were  not  sufficient  for  that  purpose,  ex- 
cept to  fall  back  upon  the  agreement  itself,  or  the  security 
afforded  by  the  deed  for  the  payment  of  such  advances 
and  indebtedness,  and  this  could  only  be  worked  out  by 
foreclosure  in  equity,  as  would  be  the  case  if  the  trans- 
action were  a  mortgage  proper.  The  trust  being  thus  con- 
fined to  the  control  and  management  of  the  property  and 
the  collection  of  the  rents  and  profits  thereof,  for  the  pur- 
pose of  paying  and  discharging  certain  liens  and  incum- 
rances,  it  is  manifest  that  the  trust  relation  was  terminated 
and  ended  by  the  decree  in  the  foreclosure  suit  brought 
by  the  Mortgage  Company  to  foreclose  its  mortgage ;  and 
such  is  the  construction  given  to  the  contract  by  this  court 
in  United  States  Mortg,  Co.  w.  Marquam,  41  Or.  391,  403  (69 
Pac.37,41). 

The  court  at  that  time  had  the  contract  before  it,  and  its 
construction  was  a  material  question  for  consideration  and 
decision,  because  it  involved  the  right  of  the  Title  Com- 
pany to  appear  and  answer  in  such  suit — a  point  stoutly 
contested  by  the  present  plaintiff.  In  discussing  this  ques- 
tion Mr.  Justice  Wolverton,  speaking  for  the  court,  says: 
"The  trust  agreement,  as  shown  by  its  terms  and  condi- 
tions, was  entered  into  to  enable  the  Title  Company  to 
manage  the  property,  and  from  the  rents  and  profits  aris- 
ing therefrom  to  discharge  the  expenses  of  management 
and  interest  charges  on  the  mortgage,  so  far  as  they  were 
sufficient,  and,  if  there  was  a  surplus,  to  apply  it  pro  rata 
to  certain  specified  indebtedness  of  Marquam  and  wife, 
and  after  these  to  apply  it  on  the  principal  sum  for  which 
the  mortgage  was  given.    The  life  of  the  trust  was  made 


412  Marquam  v.  Rosb.  [47  Or. 

dependent  upon  the  existence  of  the  mortgage,  and  the 
Title  Company  was  given  a  lien  for  advances  made  in 
pursuance  of  the  stipulations  contained  in  the  trust  agree- 
ment, so  that  a  foreclosure  of  the  mortgage  would  neces- 
sarily put  an  end  to  the  trust  relations.  Regardless  of  any 
stipulations  of  the  parties,  such  foreclosure  would  deprive 
the  trustee  of  the  subject  of  the  trust  to  operate  upon,  and 
the  agreement  would  henceforth  become  inoperative.  It 
was  therefore  incumbent  upon  the  Title  Company,  when 
made  a  party,  to  answer,  setting  up  its  duties  and  obliga- 
tions in  the  premises,  as  well  as  its  rights  and  interest  in 
the  property;  and,  having  a  lien,  whether  it  comes  by  a 
trust  agreement,  technically  speaking,  or  an  instrument 
more  properly  denominated  a  mortgage,  it  has  as  good  a 
right  to  have  it  foreclosed  as  if  it  were  plaintiff  in  the 
suit." 

This  is  a  clear  and  succinct  statement  of  the  effect  of 
the  so-called  trust  agreement  and  the  relation  of  the  parties 
arising  therefrom.  It  created  a  trust,  conditioned  on  the 
life  of  the  mortgage.  The  purpose  was  to  provide  a  fund 
for  the  payment  of  operating  expenses,  repairs,  interest 
charges,  etc.,  in  order  that  a  foreclosure  might  be  averted. 
When  default  occurred  and  the  mortgage  was  foreclosed, 
the  trust  agreement  no  longer  served  the  purpose  of  its 
creation,  and  the  trust  was  necessarily  at  an  end.  The 
agreement  was  dependent  for  its  vitality  upon  the  existence 
of  the  liens  on  the  property,  and  necessarily  terminated, 
and  the  powers  and  duties  of  the  trustee  ceased,  when  the 
liens  were  merged  in  the  decree  in  the  foreclosure  suit..  The 
rights  of  all  the  parties,  including  that  of  the  Title  Com- 
pany, were  litigated  in  such  suit  and  merged  in  the  decree, 
and  thereafter  had  to  be  worked  out  through  it.  As  a 
party  to  the  foreclosure  suit,  the  Title  Company  had  a  right 
to  and  did  set  up  its  lien,  and  obtained  a  decree  order- 
ing the  sale  of  the  property  pledged  as  security  therefor. 


July,  1905.]  Marquam  v.  Ross.  413 

Such  foreclosure  necessarily  put  an  end  to  its  custody  and 
control  of  the  property  for  the  purposes  stated  in  the  so- 
called  trust  agreement,  and  thereby  extinguished  the  trust 
relation  as  such.  It  could  no  longer  collect  and  disburse 
the  rents  and  profits,  or  manage  and  control  the  property 
for  the  purpose  specified.  It  was  therefore  deprived  of  its 
duties  as  trustee,  and  of  the  control  and  custody  of  the 
subject-matter  of  the  trust,  at  the  time  of  the  sale,  and  had 
a  right  to  bid  in  the  property  to  protect  its  lien  the  same 
as  any  other  lien  creditor :  O'Reiley  v.  BevingtoUy  155  Mass. 
72  (29  N.  E.  54);  Preaton  v.  Loughran,  58  Hun,  210  (12  N.  Y. 
Supp.  313);  Felton  v.  La  Breton,  92  Cal.  457,  461  (28  Pac. 
490);  Anderson  y. Butler,  31  S.  C.  183(9  S.  E.  797,  5  L.R.  A. 
166);  Boyer  y.  East,  161  N.  Y.  580  (56  N.  E.  114,  76  Am. 
St.  Rep.  290). 

The  rule  invoked  by  plaintiff,  which  disqualifies  a  trus- 
tee from  purchasing  the  trust  property  because  inconsist- 
ent with  his  duties,  can  have  no  application  to  the  Title 
Company,  under  the  facts  and  the  law  of  this  case.  **Jeal- 
ous  as  courts  of  equity  are  in  watching  over  the  conduct  of 
a  trustee  in  connection  with  the  object  of  his  trust,**  says 
the  Supreme  Court  of  Illinois,  "he  is  only  forbidden  by 
them  from  dealing  with  the  trust  property  for  his  own  ben- 
efit so  long  as  the  trust  continues.  The  moment  it  ceases 
he  occupies  precisely  the  same  relation  towards  it  that 
strangers  to  the  trust  do,  and,  acting  in  good  faith,  he  may 
then  become  its  owner,  by  purchase  or  otherwise'*:  Munn 
v.  Burgess,  70  111.  604,  611.  And,  as  said  by  the  Supreme 
Court  of  Kentucky,  in  Waring^ s  Executor  \,  Waring,  10  B. 
Mon.  331:  "When,  therefore,  the  powers  of  the  trustee 
ceased  by  the  limitation  contained  in  the  trust  itself,  he 
had  no  longer  any  right  to  retain  the  trust  estate  in  his 
hands;  and,  having  died  without  having  transferred  it  to 
the  beneficiary,  or  made  any  disposition  of  it  for  her  use 
and  benefit,  the  court  below  very  properly  decreed  its  pay- 


414  Marquam  v.  Ross.  [47  Or. 

ment  by  the  executors  out  of  the  estate  in  their  bauds." 
The  duties  of  the  Title  Company  were  brought  to  an  end  by 
the  decree  in  the  foreclosure  suit.  It  was  thereby  relieved 
of  any  disability  it  may  previously  have  been  under  be- 
cause of  the  trust  agreement,  and  enabled  to  purchase  the 
property  on  its  own  account  and  for  its  own  benefit:  Ball 
V.  Carew,  13  Pick.  28;  Shakeley  v.  Taylor,  1  Bond,  142  (Fed. 
C^s.)  No.  12,698;  Robertson  v.  Chapman,  152  U.  S.  673  (14 
Sup. Ct. 741,38  L.Ed. 592).  It  had  a  right  to  and  did  fore- 
close its  lien  in  such  suit,  and  this  carried  with  it  the  right 
to  protect  itself  by  bidding  at  the  sale  under  such  decree, 
unless  the  suit  was  due  to  its  wrongful  acts :  .New  Memphis 
Gaslight  Co.  Cases,  105  Tenn.  268  (60  S.  W.  206,  80  Am.  St. 
Rep.  880);  Twin  Lick  Oil  Co,  v.  Marbury,91  U.  S.  587  (23 
L.  Ed.  328);  Preston  v.  Loughran,  58  Hun,  210  (12  N.  Y. 
Supp.  313). 

In  this  connection  let  us  apply  the  test  that  the  trustee 
shall  not  be  permitted  to  deal  with  the  corpus  for  his  in- 
dividual benefit  or  protection,  where  self-interest  will  con- 
flict with  the  duty  he  owes  to  the  cestui  que  trust,  and  thus 
determine  whether  the  Title  Company  has  violated  the 
rule.  Its  duty  was  to  collect  and  apply  the  rents,  issues 
and  profits  arising  during  the  life  of  the  agreement,  that 
is,  so  long  as  the  trust  relations,  if  they  may  be  so  called, 
continued.  When  these  relations  ceased  or  were  brought 
to  an  end,  there  was  nothing  left  under  the  agreement  for 
it  to  du,  no  duty  pending  or  owing  to  the  plaintiff.  Was 
it  bound  thenceforth  to  fold  its  hands  and  watch  the  dis- 
integration of.  the  property  upon  which  it  had  a  lien, 
wholly  powerless  to  protect  itself  from  loss  by  interposing 
its  bid?  It  had  an  interest  in  the  property  to  subserve, 
and  why  could  it  not  protect  that  interest  by  taking  over 
the  property?  Its  stipulated  duty  had  been  fully  per- 
formed. The  foreclosure  of  the  paramount  lien  had  ren- 
dered it  powerless  to  do  more.    This  very  contingency  was 


July,  1905.]  Marquam  v.  Ross.  415 

within  the  contemplation  of  the  parties  when  the  agree- 
ment was  entered  into,  so  that,  the  duty  having  come  to 
an  end  under  the  very  terras  and  spirit  of  the  agreement, 
there  could  be  no  further  impediment  in  the  way  of  the 
Title  Company  protecting  itself.  Marquam  had  been 
served  as  fully  by  the  Title  Company  as  he  had  stipulated 
for  under  the  agreement,  and,  to  require  more,  the  duty 
must  be  found  to  rest  elsewhere  than  upon  the  contractual 
relations  of  the  parties.  But,  the  Title  Company  having 
discharged  its  duty  to  the  plaintiff,  there  was  nothing  left 
to  conflict  with  self-interest,  and,  having  an  interest  in  the 
property  to  subserve,  it  could  properly  bid  for  the  protec- 
tion of  that  interest.  We  are  unable  to  find  any  duty  rest- 
ing elsewhere,  under  any  principle  of  equity  with  which 
we  are  familiar,  requiring  more  of  the  Title  Company  than 
it  was  bound  to  perform  by  the  terms  of  its  agreement. 
When  such  duty  ended  without  its  fault  or  connivance  by 
the  foreclosure  under  the  paramount  lien,  then  was  it  free 
to  act  as  any  other  creditor  in  the  protection  of  its  inter- 
est. This  must  be  so,  upon  the  plainest  principles  of 
equity  and  fair  dealing.  No  authorities  have  been  pre- 
sented that  in  any  way  militate  against  this  conclusion, 
nor  have  we  been  able  to  find  any ;  while,  on  the  other 
hand,  it  finds  ample  support  in  the  cases  above  cited.  If 
there  had  been  a  redemption  by  Marquam,  and  an  account- 
ing by  the  Title  Company  had  been  required,  it  would 
have  been  by  reason  of  the  law  regulating  redemptions, 
and  not  by  virtue  of  any  subsisting  contractual  relations 
between  the  parties. 

7.  The  remaining  question  is  one  of  fact.  It  is  asserted 
that  the  conduct  of  the  Title  Company  in  the  matter  of  the 
execution  of  the  trust  and  the  proceedings  for  the  fore- 
closure of  the  mortgage  and  the  execution  sale  thereunder 
were  such  as  to  make  it  a  trustee  of  the  title  for  the  plain- 
tiff ex  maleficio.    This  position  involves  three  substantial 


416  Marquam  v.  Ross.  [47  Or. 

contentions :  First,  that  it  was  the  duty  of  the  Title  Com- 
pany to  advance  whatever  money  might  be  necessary,  in 
addition  to  the  income  from  the  property,  to  pay  the  taxes 
and  interest  on  the  mortgage ;  second,  that  it  did  not  apply 
the  whole  of  the  net  income  to  the  payment  of  such  inter- 
est and  taxes,  but  wrongfully  diverted  a  large  amount 
thereof  to  the  payment  of  itself  for  services  rendered  and 
interest  on  money  advanced  by  it,  and  thereby  suffered  a 
default  in  the  interest  payments,  in  consequence  of  which 
the  mortgagee  declared  the  entire  loan,  both  principal  and 
interest,  due  14  days  before  maturity,  and  commenced  the 
foreclosure  suit;  and,  third,  that  it  induced  and  brought 
about  the  foreclosure  suit  for  the  purpose  of  acquiring  the 
title  to  the  property. 

The  question  as  to  whether  the  Title  Company  was 
guilty  of  breaches  of  its  duty  prior  to  the  foreclosure  suit 
was  tried  out  in  the  former  litigation  between  the  parties, 
and  it  was  there  held  that  the  Title  Company  did  not  agree 
to  advance  money  necessary  to  pay  the  interest  on  the 
mortgage  and  taxes,  and  that  it  had  "not  collected  from 
said  real  property,  held  by  it  under  said  trust  agreement, 
funds  sufficient,  when  applied  as  stipulated  by  said  agree- 
ment, to  pay  any  part  of  the  interest  notes  in  the  com- 
plaint mentioned,  maturing  on  the  13th  day  of  February, 
the  13th  day  of  May,  the  13th  day  of  August,  or  the  13th 
day  of  November,  1900,  nor  had  it  misapplied  or  converted 
the  same,"  but  **had  conducted  and  managed  said  trust 
carefully  and  honestly,  and  hud  punctiliously  accounted 
for  all  sums  collected  and  received  by  virtue  thereof": 
United  States  Mortg.  Co.  v.  Marquam,  41  Or.  403  (69  Pac. 
37,  41).  It  would  seem,  therefore,  that  all  such  questions 
are  concluded  by  the  former  litigation.  But,  however  that 
may  be,  we  have  examined  the  present  record  with  care, 
and  are  unable  to  find  anything  to  substantiate  the  charges 
made.    The  claim  that  the  Title  Company  agreed  to  make 


July,  1905.]  Marqvam  v.  Ross.  417 

advances  to  meet  the  interest  payments  on  the* mortgage 
and  taxes  is  not  borne  out  by  the  testimony,  and  is  con- 
trary to  the  terms  of  the  written  agreement  between  the 
parties. 

8.  The  charge  that  the  default  in  the  payment  of  the 
interest  on  the  mortgage  and  the  consequent  foreclosure 
thereof  were  due  to  the  failure  of  the  Title  Company  to 
apply  the  net  income  from  the  property  to  the  payment 
of  the  interest  as  it  matured  is  completely  refuted  by  the 
fact  that  it  appears  from  the  tabulated  statement  of  the 
income  and  the  disbursements  therefrom,  appearing  in 
the  brief  of  counsel  for  respondent,  that  if  the  Title  Com- 
pany had  applied  the  entire  gross  income  from  the  prop- 
erty during  the  life  of  the  mortgage,  less  the  necessary 
operating  and  miscellaneous  expenses,  it  would  not  have 
kept  the  interest  paid.  Indeed,  there  would  have  been  aii 
actual  deficiency  at  the  maturity  of  every  one  of  the  inter- 
est notes,  except  four.  From  the  time  the  Title  Company 
assumed  control  of  the  property  until  the  maturity  of  the 
first  interest  note,  the  gross  receipts  were  $8,809.15,  oper- 
ating and  miscellaneous  expenses,  $4,355.78,  leaving  a  net 
balance  of  $4,453.37,  while  the  interest  note  was  for  $5,250; 
so  there  would  have  been  a  deficiency  of  $796.63.  At  the 
maturity  of  the  second  interest  note,  on  a  like  basis,  the 
deficiency  was  $644.20,  and  at  the  date  of  the  third  $1,- 
122.21.  At  the  maturity  of  the  fourth  interest  note  there 
was  a  surplus  of  $1,676.86,  but  this  was  not  sufficient  to 
make  up  for  the  previous  deficiencies.  Thus  we  might 
go  through  the  entire  time  covered  by  the  life  of  the 
mortgage,  with  similar  results.  This  calculation  includes, 
among  the  receipts  in  January,  1899,  an  item  for  $5,000, 
deposited  with  the  Title  Company  by  the  lessee  of  the 
Marquam  theater  as  security  for  the  performance  of  its 
contract,  and  for  which  plaintiff  was  not  entitled  to  credit; 

47  Ob.  —  27 


418  Marquam  v.  Robs.  [47  Or. 

and  it  does  not  include  the  3  per  cent  commission  to  the 
Title  Company  for  services  in  collecting  the  rents,  etc., 
which  it  was  clearly  entitled  under  the  contract  to  deduct 
from  the  income  before  applying  it  to  the  payment  of 
interest.  So  there  is  no  foundation  for  the  claim  made 
by  the  plaintiff. 

9.  In  addition  to  this  the  application  of  the  income  was 
made  by  the  Title  Company,  from  time  to  time,  with  his 
full  knowledge  and  acquiescence.  Itemized  statements 
of  the  receipts  and  disbursements  were  rendered  to  him 
quarterly,  from  the  13th  of  February,  1895,  to  the  13th  of 
June,  1899.  In  several  instances  he  gave  his  note  for  the 
balance  shown  to  be  due  by  these  statements,  and  in  others 
retained  them  without  objection.  The  parties  have  there- 
fore given  to  the  contract  by  their  conduct  a  practical  con- 
struction, which,  even  if  doubtful,  the  plaintiff  is  not  now 
in  a  position  to  question. 

10.  The  claim  that  the  foreclosure  suit  was  commenced 
by  the  Mortgage  Company,  at  the  instigation  and  request 
of  the  Title  Company,  with  the  design  of  securing  the 
property,  is  contradicted  by  the  testimony  of  the  oflBcers 
of  both  companies  and  the  circumstances  of  the  case.  On 
the  contrary,  the  evidence  shows  that  the  Title  Company 
used  every  reasonable  effort  within  its  power,  short  of 
increasing  its  own  indebtedness  against  the  plaintiff,  to 
obviate  the  necessity  of  a  foreclosure.  Mr.  Young,  the 
president  of  the  Mortgage  Company,  testified  that  he  had 
had  several  conversations  with  Mr.  Ross,  the  manager  of 
the  Title  Company,  in  which  he  (Ross)  endeavored  to 
obtain  a  reduction  of  the  interest  on  the  loan,  or  some 
adjustment  which  would  avoid  a  foreclosure,  and  made 
various  suggestions  looking  to  that  end  ;  that  at  Ross's 
request  the  commencement  of  the  suit'was  postponed  on 
account  of  the  hopes  held  out  that  the  plaintiff  would  be 
able  to  procure  a  new  loan,  and  the  foreclosure  thereby 


July,  1905.]  Marquam  v.  Ross.  419 

be  rendered  unnecessary;  that  prior  to  commencing  the 
suit  Ross  frequently  urged  the  Mortgage  Company  to  re- 
fund the  loan  at  a  lower  rate  of  interest,  or  extend  the 
time  for  the  pajment  thereof.  Mr.  Hurd,  the  assistant 
secretary  of  the  Mortgage  Company,  testified  substantially 
the  same.    He  says  : 

"I  recall  that  the  default  of  Marquam  in  the  payment 
of  his  interest  was  frequently  discussed  between  us,  and 
Mr.  Ross  made  various  suggestions  looking  to  the  adjust- 
ment of  the  matter  in  such  a  way  as  to  preclude  the  neces- 
sity of  the  foreclosure  of  our  mortgage.  Mr.  Ross  was  very 
desirous  to  avoid  a  foreclosure  of  the  mortgage,  and  was 
very  anxious  to  see  foreclosure  proceedings  postponed  as 
long  as  possible,  in  case  they  should  become  necessary," 

And,  again : 

"The  foreclosure  suit  was  deferred,  in  reliance  on  a 
statement  of  The  Title  Guarantee  &  Trust  Co.  that  the 
rents  were  increasing,  and  in  the  hope  that  funds  could 
be  secured  by  P.  A.  Marquam  for  the  replacing  of  his 
loan,  thus  rendering  the  foreclosure  on  our  part  unneces- 
sary. *  *  Mr.  Ross,  on  different  occasions  prior  to  the 
foreclosure,  took  up  with  me  the  question  of  extending 
this  loan  at  a  lower  rate  of  interest  for  the  benefit  of  P.  A. 
Marquam,  but  we  at  no  time  felt  justified  in  acceding  to 
his  request." 

Mr.  Ross  says  that  he  made  several  attempts  to  refund 
the  loan,  and  applied  to  life  insurance  companies,  trust 
companies,  and  other  financial  institutions  for  money  for 
that  purpose,  but  was  unable  to  effect  his  object. 

There  is  no  testimony  in  the  record  showing  or  tending 
to  show  that  the  Title  Company  was  anxious  or  solicitous 
to  have  the  mortgage  foreclosed.  Indeed,  the  action  and 
conduct  of  its  officers  indicate  a  contrary  purpose.  The 
plaintiff  was  indebted  to  it  in  the  sum  of  about  $40,000. 
The  only  security  was  a  lien  upon  the  property,  subject  to 
a  prior  mortgage  of  1300,000  and  interest,  due  the  Mort- 
gage Company.    The  Title  Company  knew  that,  if  this 


420  Marquam  V,  Ross.  [47  Or. 

mortgage  was  forclosed,  it  could  probably  protect  its  own 
interest  only  by  purchasing  at  the  foreclosure  sale  and 
taking  care  of  the  first  mortgage.  This  was  a  condition 
it  evidently  hoped  to  avert,  and  for  that  purpose  its  man- 
ager seems  to  have  exercised  all  the  diligence  within  his 
power,  but  without  avail.  Much  stress  is  laid  upon  the 
fact  that  after  the  Mortgage  Company  had  determined  to 
proceed  with  the  foreclosure  suit  Mr.  Ross  was  first  em- 
ployed as  its  attorney,  although  he  subsequently  retired, 
and  the  suit  was  actually  brought  and  conducted  by  an- 
other. We  are  not  able  to  give  this  circumstance  the  force 
and  effect  claimed  for  it  by  the  plaintiff.  There  was  neces- 
sarily no  confliet  in  the  interests  of  the  Mortgage  Company 
and  the  Title  Company  in  the  foreclosure  proceedings. 
The  mortgage  was  admittedly  a  first  lien  upon  the  prop- 
erty, and  it  was  therefore  but  natural  for  the  Title  Com 
pany  to  endeavor  to  make  the  expenses  of  the  foreclosure 
as  light  as  possible,  as  it  could  only  protect  itself  by  pay- 
ing or  taking  care  of  the  first  lien  and  accruing  costs.  Nor 
was  there  any  fraud  in  the  agreement  made  by  it  with  the 
Mortgage  Company,  under  which  Ross  purchased  at  the 
sale  under  the  decree  of  foreclosure,  concerning  the  man- 
ner of  payment  of  the  amount  due  under  the  decree.  That 
was  a  matter  wholly  between  them,  and  not  one  which  the 
Title  Company  was  bound  to  disclose  to  the  plaintiff.  The 
duties  as  trustee  ceased  with  the  foreclosure,  and  there- 
after it  stood  in  the  same  position  as  any  other  junior 
mortgagee  in  possession  whose  mortgage  has  been  fore- 
closed, and  was  entitled  and  had  a  right  to  make  any 
satisfactory  arrangements  with  the  prior  mortgagee  by 
which  its  own  interests  could  be  subserved  and  protected. 
It  may  be  said  in  this  connection,  however,  that  Marquam 
was  advised  by  the  officers  of  the  Title  Company  several 
days  before  the  sale  that  arrangements  could  probably  be 
made  to  carry  a  purchaser  of  the  property  for  |300,000, 


July,  1906.]  Marquam  v,  Ross.  421 

and  that,  if  he  could  secure  some  one  to  pay  the  balance, 
they  would  cooperate  with  him  to  the  fullest  extent,  if 
desired,  in  securing  a  loan  for  that  amount  from  the  Mort- 
gage Company;  but  he  was  unwilling  or  unable  to  do  so. 
Without  further  extending  this  opinion,  it  is  enough  to 
say  that  after  a  careful  and  exhaustive  examination  of  the 
record  and  argument  we  are  all  in  full  accord  with  the 
trial  judge  as  to  the  facts,  but  are  unable  to  agree  with 
him  in  his  construction  of  the  contract  between  the  plain- 
tiff and  the  Title  Company.  As  a  consequence,  the  decree 
of  the  court  below  must  be  reversed.  Reversed. 


Decided  17  July,  1906. 

On  Motion  for  Rehearing. 

Mr.  Justice  Hailey  delivered  the  opinion  of  the  court. 

The  petition  for  rehearing  in  this  case  was  filed  Feb- 
ruary 28,  1906.  We  have  carefully  considered  the  ques- 
tions therein  presented,  and  in  so  doing  have  reviewed 
the  entire  record  in  the  case.  The  only  question  raised  in 
the  petition  for  rehearing  that  is  not  fully  discussed  in 
the  opinion  heretofore  rendered  is  that  of  the  effect  of  the 
supplemental  agreement  of  November  27,  1896,  between 
the  plaintiff,  Marquam,  and  his  wife,  the  Title  Company, 
and  the  Northern  Counties  Investment  Trust,  Limited. 
The  plaintiff  contends  that  this  supplemental  agreement 
explains  more  fully  the  purposes  of  the  other  agreements 
and  confers  a  power  of  sale  upon  the  Title  Company  by  the 
following  language  used  therein : 

*'It  is  stipulated  that  the  properties  mentioned  in  the 
said  trust  agreements  and  hereinafter  described,  and  the 
proceeds  which  may  arise  from  them,  either  from  rents, 
issues  and  profits  or  from  sales,  shall  be  held  by  said  Title 
Guarantee  &  Trust  Company,  under  said  existing  trust 
agreements  and  hereunder  until  such  time  as  that  the 


422  Marquam  v.  Ross.  [47  Or. 

indebtedness  due  upon  the  judgment  hereinbefore  men- 
tioned, together  with  the  legal  interest  thereon,  shall  be 
fully  paid  and  satisfied,  or  until  the  trust  fund  and  trust 
properties  by  The  Title  Guarantee  &  Trust  Company  held 
under  the  said  trust  agreements  shall  become  exhausted; 
but  this  agreement  shall  not  be  construed  as  impairing 
the  priorities  already  created  by  the  said  several  trust 
agreements  above-mentioned,  including  any  past  or  future 
advances  made  according  to  their  terms,  or  entitle  the 
Northern  Counties  Investment  Trust,  Limited,  to  any  pay- 
ments from  the  trust  fund  on  account  of  said  indebtedness 
due  it,  until  all  of  the  rights  or  interests  in  any  of  the  said 
properties,  and  the  trusts  created  therein  in  any  of  the 
parties  mentioned  in  the  said  trust  papers  are  fully  satis- 
fied, in  accordance  with  the  said  trust  papers,  save  and 
excepting  the  interests  and  rights  therein  of  P.  A.  Mar- 
quam and  Emma  Marquam,  or  either  of  them,  but  as  to 
them  the  right  is  now  created  and  intended  to  be  conferred 
on  the  Northern  Counties  Investment  Trust,  Limited,  as 
a  beneficiary  of  the  trust  fund  and  estate  in  the  hands  of 
the  said  The  Title  Guarantee  &  Trust  Company,  shall  be 
deemed  prior  to  any  interest  or  right  therein  of  the  said 
P.  A.  and  Emma  Marquam,  whom  it  is  intended  by  this 
agreement  to  postpone  to  the  interest  in  the  said  proper- 
ties in  the  Northern  Counties  Investment  Trust,  Limited.'' 

11.  There  is  nothing  in  the  supplemental  agreement 
that  attempts  to  change  the  character  of  the  prior  agree- 
ments ;  but,  on  the  contrary,  it  declares  that  "this  agree- 
ment shall  not  be  construed  as  impairing  the  priorities 
already  created  by  the  said  several  trust  agreements  above 
mentioned."  The  purpose  of  this  agreement  was  to  post- 
pone the  rights  of  Marquam  and  wife  under  the  former 
agreements  recited  in  the  opinion  to  the  rights  given  by 
this  agreement  to  the  investment  company,  which  had  a 
judgment  against  Marquam  for  $6,746.57,  dated  August  25, 
1895.  It  simply  added  the  claim  of  the  investment  com- 
pany to  the  claims  already  secured  by  the  former  agree- 
ments, and  postponed  all  rights  of  Marquam  and  wife  in 


July,  1906  ]  Marquam  v.  Ross.  423 

the  property  mortgaged  to  the  claim  of  the  investment 
company,  which  was  given  the  priority  over  Marquam  and 
wife,  but  did  not  alter  or  change  the  character  of  the  ex- 
isting agreements  between  the  parties  whose  claims  were 
secured  by  the  property  held  by  the  Title  Company.  The 
utmost  that  could  be  claimed  for  it  is  that  it  conferred  a 
power  of  sale  upon  the  Title  Company;  but  such  sale  under 
our  statute  could  only  be  made  under  a  decree  of  fore- 
closure as  provided  in  Section  423,  B.  &  C.  Comp :  Thomp- 
son v.  Marshall,  21  Or.  171,  178  (27  Pac.  957). 

12.  Such  a  power  of  sale  could  not  alter  the  character 
of  the  agreements  between  the  parties,  so  long  as  the  object 
was  to  secure  the  payment  of  debts  due  the  parties  men- 
tioned in  the  several  agreements.  The  object  of  the  orig- 
inal agreements  was  to  secure  the  payn>ent  of  certain  debts 
therein  specified,  and  the  supplemental  agreement  merely 
confirmed  these  prior  agreements  and  the  rights  of  the 
several  parties  thereunder,  and  gave  a  priority  to  the  in- 
vestment company  to  the  amount  of  its  claim  over  the 
rights  of  Marquam  and  wife,  who  were  to  have  all  the  prop- 
erty covered  by  the  deed  to  the  Title  Company  reconveyed, 
so  that  Marquam  should  be  repossessed  of  the  fee  thereof 
and  his  wife  reinstated  as  to  her  dower  therein  when  the 
several  claims  of  the  other  parties  had  been  paid.  The 
supplemental  agreement  is  in  effect  a  junior  mortgage 
from  Marquam  and  wife  in  favor  of  the  investment  com- 
pany, and  in  no  wise  affected  the  terms  of  the  other  agree- 
ments or  the  mortgage  given  to  the  United  States  Mortgage 
Company,  by  which  the  sale  of  the  property  was  made 
under  a  decree  of  foreclosure. 

After  full  consideration  of  the  case  we  are  all  agreed  that 
the  former  opinion  was  correct,  and  the  petition  for  re- 
hearing will  therefore  be  denied. 

Reversed:  Rehearing  Denied. 


424  Carroll  v.  Grande  Ronde  Elec.  Co.     [47  Or. 

Decided  2  January,  rehearing  denied  27  February,  1906. 
GABBOLL  V.  GBANDE  BONDE  ELEGTBIG  GO. 

84  Pac.  880. 

EI.ECTRICITY  — Care  Required  in  Transmitting. 

1.  Those  engaged  In  making  or  transmitting  electricity  In  large  quantities  or 
at  high  voltage  arc  bound  to  exercise  care  commensurate  wl  h  the  danger  In 
placing  and  protecting  the  InHtrumentalltles  used  for  those  purposes. 

Effect  of  Showing  Contributory  Negligence  by  Plaintiff. 

2.  Where  It  appears  from  plainilff's  testimony  that  the  one  who  sustained 
injuries  was  also  guilty  of  negligence,  without  which  the  Injury  complained  of 
would  not  have  happened,  such  proof  will  defeat  a  recovery  as  a  matter  of  law. 

Contributory  Negligence  — Failure  to  Recall  Known  Danger. 

"Z.  The  rule 'enforcible  between  master  and  servant,  that  when  the  latter  is 
called  upon  to  quickly  perform  a  service,  he  is  not  negligent  in  failing  to  recall 
a  known  danger,  does  not  apply  between  persons  not  having  reciprocal  duties 
and  obligations. 

Electricity  — Evidence  of  Contributory  Negligence. 

4.  Where  a  person  of  ordinary  intelligence  and  of  mature  years,  knowing 
that  an  electric  power  wire  had  broken  and  had  been  fastened  to  a  fence,  went 
up  to  see  if  it  was  alive,  after  having  been  warned  to  stay  away,  and  patting  one 
hand  on  the  fence,  pointed  the  other  at  the  wire,  in  consequence  of  which  the 
current  jumped,  he  was  guilty  of  contributory  negligence,  preventing  a  recovery 
for  the  Injury  received. 

Negligence  — Knowledge  of  Danger  —  Assumed  Risk. 

5.  In  cases  not  between  master  and  servant  there  is  no  distinction  between 
knowledge  of  the  existence  of  a  danger  and  the  assumption  of  the  risk  incident 
thereto. 

Care  Required  to  Avoid  Danger. 

6.  The  law  Imposes  on  one  sul  juris  the  duty  of  using  ordinary  care  to  avoid 
known  dangers,  and  therefore  It  is  contributory  negligence  for  such  a  person  to 
voluntarily  assume  a  position  the  danger  of  which  he  appreciates. 

From  Union:   Robert  Eakin,  Judge. 

Action  by  Eliza  Carroll,  as  administratrix  of  the  estate 
of  Leonard  Carroll,  deceased,  against  the  Grande  Ronde 
Electric  Company.  From  a  judgment  in  favor  of  defend- 
ant, plaintiff  appeals.  Affirmed. 

For  appellant  there  was  an  oral  argument  by  Mr.  Leroy 
Lomax  and  Mr.  Gustave  Anderson,  with  a  brief  to  this  effect. 

I.  Electricity  being  a  peculiarly  dangerous  element,  the 
law  raises  a  presumption  of  negligence  on  the  part  of  the 
person  operating  the  wires  conveying  it,  whenever  they 
are  down  and  injury  results  :  Boyd  v.  Portland  Eke.  Co.,  40 


Jan.  1906.]     Carroll  v.  Grande  Ronde  Elec.  Co.       425 

Or.l26(7Am.Electl.Ca8.661,57L.R.A.619,66Pac.576); 
Haynes  v.  Raleigh  Oas  Co,,  114  N.  C.  203  (5  Am.  Electl.  Cas. 
264,  26  L.  R.  A.  810,  41  Am.  St.  Rep.  786,  19  S.  E.  344); 
Fitzgerald  v.  Edison  Elec.  Ilium,  Co.,  200  Pa.  540  (86  Am.  St. 
Rep.  732,  50  Atl.  161). 

II.  A  person  or  company  using  wires  to  carry  electricity 
is  bound  to  know  the  danger,  while  the  public  is  not ;  and 
such  person  or  company  is  bound  to  continuously  use  the 
highest  degree  of  care  to  prevent  injury:  Boyd  v.  Portland 
Elec.  Co.,  40  Or.  126  (7  Am.  Electl.  Cas.  661 ,  26  L.  R.  A.  810, 
66  Pac.  576);  Giraudi  v.  Electric  Improv.  Co.,  107  Cal.  120 
(5  Am.  Electl.  Cas.  318,  48  Am.  St.  Rep.  114,  28  L.  R.  A. 
596,40  Pac.  108);  South  Omaha  W.  Co.  v.  Voca8eck,62  Neb. 
586  (87  N.  W.  537) ;  Fitzgerald  v.  Edison  Elec.  Ilium.  Co.,  200 
Pa.  540  (86  Am.  St.  Rep.  732,  50  Atl.  161);  Texarkana  Gas 
&  E.  L.  Co.  V.  Orr,  59  Ark.  215  (5  Am.  Electl.  Cas.  272,  43 
Am.  St.  Rep.  30,  27  S.  M^  66). 

III.  Failure  to  promptly  detect  and  repair  the  break  in 
the  wires  is  not  excused  by  showing  that  a  heavy  wind 
^torm  caused  such  break,  and  where  the  evidence  discloses 
that  the  wires  were  allowed  to  remain  broken  after  the 
storm  had  subsided,  the  fact  of  knowledge  of  the  storm 
aggravates  the  wrong,  and  keeping  the  current  on  after 
such  knowledge  is,  as  a  question  of  law,  gross  and  wanton 
negligence  :  Texarkana  Gas  &  E.  L.  Co.  v.  Orr,  59  Ark.  215 
(43  Am.  St.  Rep.  30,  5  Am.  Electl.  Cas.  272,  27  S.  W.  66); 
Central  Union  Teleph.  Co.  v.  Sokola,  34  Ind.  App.  429  (73 
N.  E.  143);  Cleary  v.  St.  Louis  Transit  Co.  (Mo.  App.),  83 
S.  W.  1029. 

IV.  An  ordinary  person  is  not  presumed  to  know  the 
nature  and  danger  of  electricity  in  its  subtle  and  multi- 
form ways,  and  one  injured  by  this  agency  through  the 
fault  of  the  person  whom  the  law  charges  with  such  knowl- 
edge, cannot,  as  a  question  of  law,  be  charged  with  con- 
tributory negligence,  where  it  is  not  shown  that  he  knew 


426  Carroll  v.  Grande  Ronde  Elec.  Co.     [47  Or. 

or  had  notice  of  the  special  peril  to  which  he  was  exposed : 
Clements  v.  Louisiana  Elec.  Li.  Co.^  44  La.  Ann.  692  (4  Am. 
Electl.  Cas.  381,  11  So.  51,  16  L.R.  A.  43,  32  Am.  St.  Rep. 
348);  Qiraudi  v.  Electric  Imp.  Co.,  107  Cal.  120  (5  Am.  Electl. 
Cas.  318,  48  Am. St. Rep.  114,  28  L.R.  A. 596,  40  Pac.108); 
Ferham  v.  Portland  Elec.  Co.,  33  Or.  451  (7  Am.  Electl.  Cas. 
487,  40  L.  R.  A.  799,  72  Am.  St.  Rep.  730,  53  Pac.  14); 
Thomas  v.  Maysville  Gas  Co.,  108  Ky.  224  (7  Am.  Electl.  Cas. 
588,  53  L.  R.  A.  147,  56  S.  W.  153). 

V.  The  law  recognizes  a  distinction  between  knowledge 
of  dangerous  conditions  and  realization  of  the  risk.  A  per- 
son may  know  the  facts  and  yet  not  understand  or  realize 
the  risk  or  special  peril  of  the  position,  and  where  such  is 
the  case  the  person  injured  cannot, as  a  legal  proposition, 
be  charged  with  contributory  negligence:  Texarkana  Gas 
&  E.  L.  Co.  V.  Orr,  59  Ark.  215  (43  Am.  St.  Rep.  30,  5  Am. 
Electl.  Cas.  272,  27  S.  W.  66);  South  OmahaW.  Co.  v.  Voca- 
seek.  62  Neb.  586  (87  N.  W.  537);  Washington  &  G.  R.  Co.  v. 
McDade,  135  U.S.  554  (10  Sup.  Ct.  1044);  Inland  &  S.  C. 
Co.  V.  Tolson,  139  U.  S.  551  (11  Sup.  Ct.  653);  Grand  Trunk 
R.  Co.  V.  Ives,  144  U.  S.  408  (12  Sup.  Ct.  679);  Leavenworth 
Coal  Co.v.Ratchford,5  Kan.  App.  150  (48  Pac.  927);  Mc- 
Quillan V.  Seattle,  10  Wash.  464  (45  Am.  St.  Rep.  799,  38 
Pac.  1119);  Predmore  v.  Consumer's  L.  &  P.  Co. ,99  App.  Div. 
551  (91  N.  Y.  Supp.  118);  Simonds  v.  Baraboo,  93  Wis.  40 
(57  Am.  St.  Rep.  897,  67  N.  W.  40);  Roth  v.  Northern  Pac. 
Lum.  Co.,  18  Or.  205,  213  (22  Pac.  842);  Gardner  v.  Wasco 
County,  37  Or.  392,  398  (61  Pac.  834,  9  Am.  Neg.  Rep.  35); 
Stager  v.  Troy  Laundry  Co.,  38  Or.  480, 486  (53  L.  R.  A.  459, 
63  Pac.  645). 

For  respondent  there  was  an  oral  argument  by  Mr. 
Thomas  Harrison  Crawford,  with  a  brief  over  the  name 
of  Crawford  &  Crawford,  to  this  effect. 

1.  An  electric  light  and  power  company  that  has  erected 
its  poles  and  wires  along  and  over  a  public  highway  with 


Jan.  1906.]     Carroll  v.  Grande  Ronde  Elec.  Co.       427 

the  consent  of  the  proper  authorities  is  only  bound  to  ex- 
ercise care  and  diligence  proportional  to  the  danger,  and 
is  not  an  insurer  against  accident:  Boyd  v.  Portland  Elec. 
Co.,  37  Or.  567  (7  Am.  Electl.  Cas.  605,  52  L.  R.  A.  509, 
8  Am.  Neg.  Rep.  378,62  Pac.  378);  Denver  ConsoL  Elec.  Co. 
V.  Simpson,  21  Colo.  371  (31  L.  R.  A.  566,  5  Am.  Electl. 
Cas.  278,  25  Am.  St.  Rep.  242,  41  Pac.  499);  Crosswell, 
Electricity,  §  236;  Keasby,  Elec.  Wires  (2  ed.),  §  236. 

2.  Where  one  is  in  the  presence  of  a  known  danger  he 
is  bound  to  use  ordinary  care  not  to  come  in  contact  with 
such  danger  and  thereby  expose  himself  to  injury.  If  he 
fails  to  use  care,  and  voluntarily  exposes  himself  to  a 
known  danger  and  is  injured,  he  is  guilty  of  such  con- 
tributory negligence  as  will  preclude  a  recovery  of  dam- 
ages :  Clements  v.  Louisiana  Elec.  Lt.  Co.,  44  La.  Ann.  692 
(16  L.R.A.43,  32  Am.  St.  Rep.  348,  4  Am.  Electl.  Cas.  381, 
11  South.  51);  Cook  v.  Wilmington  City  Elec.  Co.,  9  Houst. 
306  (32  Atl.  643);  Anderson  v.  Jersey  City  Elec.  Co.,  64  N.  J. 
Law,  664(46  Atl.  593, 48  L.R.A.616,  81  Am.  St.  Rep.  504); 
Frauenthal  v.  Laclede  Gaslight  Co.,  127  Mo.  79  (29  S.  W.  988); 
Wood  V.  Diamond  Elec.  Co.,  186  Pa.  529  (39  Atl.  1111 );  Co- 
lumbus  R.  Co.  v.  Dorsey,  119  Ga.  363  (46  S.  W.  635);  TVi- 
City  Ry.  Co.  v.  Killeen,  92  111.  App.  57;  Danville  St.  Car  Co. 
V.  Watkins,  97  Va.  713  (34  S.  E.  884);  Mayor  of  Cumberland 
y.Lottig,  95  Md.  42  (51  Atl.  841). 

3.  An  electric  company  is  ordinarily  under  no  legal  ob- 
ligation to  a  mere  trespasser  or  licensee  other  than  not  to 
willfully  or  wantonly  harm  him  :  McCaughna  v.  Owosso  & 
C.EUc.  Co.,  129  Mich.  407  (95  Am.  St.  Rep.  441,  89  N.  W. 
73);  Keefe  v.  Narragansett  Elec.  Co.,  21  R.  I.  575  (43  Atl. 
542);  Sullivan  v.  Boston  R.  Co.,  156  Mass.  378  (31  N.  E..128); 
Augusta  Ry.  Co.  v.  Andrews,  89  Ga.  563  (4  Am.  Electl.  Cas. 
378,  16  S.  E.  203);  Cumberland  Teleph.  Co.  v.  Martin,  116 
Ky.554  (76  S.W.394,77  S.W.718);  Hector  w.  Boston  Elec. 


428  Carroll  v.  Grande  Rondb  Elec.  Co.     [47  Or. 

Lt.  Co.,  161  Mass.  558  (5  Am.Electl.Cas.  300,  37  N.E.773, 
75  Am.  St.  Rep.  300,  25  L.  R.  A.  554). 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

This  is  an  action  by  Eliza  Carroll,  as  administratrix  of 
the  estate  of  her  son  Leonard  Carroll,  deceased,  against  the 
Grande  Ronde  Electric  Co.,  a  private  corporation,  to  re- 
cover damages  resulting  from  his  death,  which  is  alleged 
to  have  been  caused  by  its  negligence  in  constructing  lines 
of  electric  wires  and  in  failing  to  repair  such  wires  when 
broken.  The  answer  denies  the  material  averments  of  the 
complaint,  and,  for  a  further  defense,  alleges  that  CarrolFs 
death  ensued  from  his  own  carelessness.  The  allegations 
of  new  matter  in  the  answer  were  put  in  issue  by  the  reply, 
and  at  the  trial,  the  plaintiff  having  introduced  her  testi- 
mony and  rested,  the  court,  on  motion  of  defendant's  coun- 
sel, gave  a  judgment  of  nonsuit,  and  she  appeals. 

The  bill  of  exceptions  shows  that  the  defendant  operates 
at  Cove  a  power  plant,  where  it  generates  electricity,  which 
is  transmitted  on  overhead  wires  17  miles  westerly  to  La 
Grande  at  a  pressure  of  23,500  volts,  and  by  a  branch  from 
the  main  line,  starting  at  a  point  about  five  miles  from 
Cove,  is  carried  a  current  at  the  same  voltage  southerly 
eight  miles  to  Hot  Lake  and  supplied  from  substations 
at  both  termini  to  customers  who  use  it  for  light,  heat  or 
power.  The  injury  complained  of  occurred  on  the  branch 
line  where  it  runs  south  on  the  west  side  of  a  public  high- 
way extending  through  the  farm  of  Frank  Hempe.  This 
line  consists  of  three  uninsulated  wires,  one  of  which  is 
suspended  from  the  tops  of  poles  about  30  feet  high,  set 
about  125  feet  apart,  and  the  other  wires  are  attached,  each 
to  the  end  of  cross-arms  fastened  to  such  poles  near  the 
top.  A  very  severe  wind,  arising  Sunday,  August  27.,  1905, 
at  about  four  o'clock  in  the  afternoon,  blew  a  green  limb 
from  a  tree  growing  on  Hempe's  land  across  the  wires, 


Jan.  1906.]     Carroll  v.  Grande  Ronde  Elec.  Co.       429 

causing  two  of  them  to  burn  off  and  fall,  so  that  the  ends 
thereof,  in  the  direction  from  whence  the  current  came, 
lodged,  one  against  the  pole  by  which  it  was  suspended, 
and  the  other  on  the  ground,  where  it  emitted  sparks,  set- 
ting fire  to  dry  leaves ;  and,  some  cattle  being  near,  John 
W.  Minnick,  who  with  his  employees  was  threshing  grain 
for  Hempe,  apprehending  danger,  by  using  a  dry  stick 
looped  the  wire  over  the  end  of  a  picket  in  a  fence  enclos- 
ing a  lawn  about  Hempe's  house,  pushing  the  noose  down 
against  the  upper  rail  of  the  palings.  The  loop  placed  over 
the  picket  not  appearing  to  be  securely  fastened,  Minnick 
bent  the  wire  more,  still  using  the  dry  stick  for  that  pur- 
pose, and,  wondering  whether  it  still  possessed  electrical 
energy,  he  put  out  his  finger,  and  when  it  came  within 
about  eight  inches  of  the  wire  a  blaze  suddenly  appeared, 
burning  his  hand  and  causing  him  to  fall  insensible,  from 
the  effects  of  which  shock  he  did  not  fully  recover  for  sev- 
eral days.  Minnick's  son,  seeing  his  father  fall,  immedi- 
ately ran  to  his  assistance,  when,  coming  in  contact  with 
the  wire  that  was  lodged  against  the  pole,  he  also  received 
a  shock.  Soon  after  the  wires  fell,  a  dog  chasing  cattle 
away  from  the  place  of  danger  also  came  in  contact  with 
the  electric  current.  When  the  end  of  the  wire  was  fas- 
tened to  the  fence,  Hempe's  son  George  was  present  and 
knew  that  the  several  shocks  were  so  received. 

Leonard  Carroll,  who  was  24  years  old,  was  working  in 
August,  1905,  for  Hempe  as  a  farm  laborer.  He  was  not 
at  the  home  of  his  employer,  however,  w^hen  the  wires  fell ; 
but,  returning  that  evening,  he  ate  supper  with  the  family 
and  also  breakfast  the  next  morning,  at  which  meals  the 
dangerous  condition  of  the  wires  was  freely  commented 
upon,  the  several  shocks  received  therefrom  were  adverted 
to,  and  at  breakfast  Hempe,  in  his  hearing,  warned  the 
persons  participating  in  the  repast  to  keep  away  from  the 
broken  wires,  as  by  approaching  them  they  might  be 


430  Carroll  v,  Grande  Ronde  Elec.  Co.     [47  Or. 

killed.  Carroll  assisted  that  forenoon  in  hauling  oats  from 
Hempe's  field  to  Minnick's  machine  to  be  threshed.  About 
12  o'clock  that  day,  as  George  Hempe,  who  was  nearly 
Carroll's  age,  was  returning  to  the  house  for  the  midday 
meal,  he  concluded  to  ascertain  whether  or  not  the  broken 
wires,  which  had  not  been  repaired,  were  still  charged 
with  electricity,  and  going  inside  the  inclosure  to  the  place 
where  the  end  of  the  wire  towards  the  power  house  was 
fastened  to  the  picket  fence,  he  expected  to  make  a  test 
with  a  green  weed  suspended  from  a  dry  stick.  Carroll 
went  with  him,  and,  standing  at  his  left  about  two  feet 
north  of  the  point  where  the  epd  of  the  wire  was  fastened, 
he  seized  the  top  of  one  of  the  fence  pickets  with  his  left 
hand,  and,  in  his  ignorance  of  electricity,  pointed  his  in- 
dex finger  toward  the  wire,  which  was  about  eight  inches 
distant,  when  there  was  a  sudden  flash,  burning  his  hand 
and  killing  him. 

George  Hempe,  as  plaintiff's  witness,  testified  that  he  was 
present  when  the  wires  were  fastened  to  the  fence,  but  his 
back  was  turned  when  Minnick  received  the  shock,  though 
hearing  him  holloa,  and  the  witness  turned  as  he  fell, 
and  that  on  the  morning  of  August  28,  1905,  he  discussed 
with  Carroll  the  danger  of  the  broken  wires.  On  cross- 
examination  George  stated  that  he  told  Carroll  about  Min- 
nick's  getting  shocked  and  knocked  down,  whereupon  de- 
fendant's counsel,  referring  thereto,  inquired:  "Did  you 
tell  him  he  put  his  hand  up  toward  the  wire  and  there  was 
a  blaze  came  out  to  him,  and  that  is  the  way  he  got  it  ?"  To 
which  the  witness  replied :  "Yes,  I  think  I  told  him  some- 
thing to  that  effect."  Referring  to  the  manner  in  which 
Carroll  was  injured,  the  witness  was  further  asked  on  cross- 
examination  : 

**Isn't  it  a  fact  that  he  went  up  and  took  hold  of  the 
picket  there  and  stuck  his  finger  out  in  that  way?" 


Jan.  1906.]     Carroll  v.  Grande  Ronde  Elec.  Co.       431 

And  he  answered : 

"Well,  when  he  took  hold  of  the  picket,  he  reached  out 
and  took  hold  of  it  like  that,  and  these  three  fingers  closed 
while  the  other  extended. 

Q.  Extended  out  towards  the  wire  ? 

A.  Yes.  *  * 

Q.  Well,  now,  did  his  hand  come  in  contact  with  the 
wire? 

A.  I  don't  think  it  did.  The  last  time  I  saw  it  before  the 
blaze  started,  it  was  probably  about  eight  inches  from  the 
wire,  and  after  the  blaze  started  I  could  not  say.  *  * 

Q.  As  a  matter  of  fact,  from  where  he  took  hold  of  that 
picket  here,  his  finger  —  his  forefinger  of  his  left  hand  — 
was  pointed  directly  towards  the  wire,  wasn't  it  ? 

A.  Yes." 

Frank  Hempe,  as  plaintiff's  witness,  testified  that  fie  was 
not  at  home  when  the  wires  burned-  off,  but  that  he  re- 
turned that  night  about  8  o'clock.  In  referring  to  the 
broken  wires  at  that  hour,  plaintiff's  counsel  inquired : 

"What  did  you  see  about  that?" 

And  the  witness  answered : 

"Well,  they  were  sparking  and  I  cautioned  the  people 
that  they  were  dangerous  and  to  keep  away  from  those 
wires.  *  * 

Q.  You  saw  the  wires? 

A.  I  didn't  see  any  wire.  I  saw  the  fire  and  sparks. 
I  didn't  see  any  wire.    I  thought  it  was  dangerous." 

On  cross-examination,  defendant's  counsel,  referring  to 
Monday,  August  28,  1905,  inquired : 

"I  will  ask  you  to  state  whether  or  not,  at  the  breakfast 
table  that  morning,  when  Mr.  Leonard  Carroll  was  present 
and  your  son  George,  that  you  said  to  all  of  those  parties 
to  stay  away  from  that  wire ;  that  it  was  extremely  dan- 
gerous, and  they  might  get  killed  ?"  To  which  he  replied: 
"Yes." 

Mrs.  Frank  Hempe,  as  plaintiff's  witness,  testified,  on 
cross-examination,  that  Leonard  Carroll  took  supper  with 
her  family  Sunday  evening,  August  27,  1905,  when  the 


432  Carroll  v,  Grande  Ronde  Elec.  Co.     [47  Or. 

breaking  of  the  wires  was  discussed  ;  that  at  the  breakfast 
the  next  morning,  when  Carroll  was  present,  the  broken 
wires  were  again  the  subject  of  debate,  and  attention  was 
called  to  Minnick's  being  knocked  down;  that  she  heard 
her  husband  say,  at  that  meal,  in  the  presence  of  Carroll, 
and  of  her  son  George,  to  stay  away  from  the  wires,  for 
if  they  went  about  them  they  were  liable  to  be  killed. 
This  witness,  referring  to  what  was  further  observed  on 
that  occasion,  testified  as  follows: 

'^1  said  the  best  thing  to  do  was  to  keep  away  from  that 
wire. 

Q.  Mr.  Leonard  Carroll  was  there  at  that  time? 

A.  Yes. 

Q.  Was  that  at  the  breakfast  table  or  the  supper  table  ? 

A.  Breakfast  table. 

Q.  Well,  these  matters  were  talked — were  made  a  matter 
of  general  conversation — were  they  not,  between  the  par- 
ties at  the  supper  table  and  breakfast  table? 

A.  Yes. 

Q.  And  to  what  extent  Mr.  Minnick  had  got  hurt? 

A.  Yes. 

Q.  And  that  it  was  fortunate  that  he  didn't  get  killed 
and  matters  of  that  kind? 

A.  Yes. 

Q.  And  it  was  discussed  how  dangerous  it  would  be  if 
a  person  happened  to  get  near  the  wire,  if  it  happened  to 
be  charged  with  electricity?  That  was  all  talked,  wasn't 
it,  Mrs.  Hempe  ? 

A.  Yes.'' 

Though  no  testimony  was  introduced  on  the  part  of  the 
defendant,  the  answer  states  facts  which  were  evidently 
relied  upon  to  excuse  the  delay  in  failing  to  discover  the 
break  in  the  wires,  so  that  it  might  sooner  have  been  re- 
paired. That  pleading  details  the  manner  in  which  the 
defendant's  station,  substations,  and  transmission  lines 
are  constructed,  maintained  and  operated,  and  avers  that 
the  power  plant,  at  the  time  of  the  wind  storm  adverted  to, 


Jan.  1906.]     Carroll  v.  Grande  Rondk  Elec.  Co.       433 

was  supplied  with  the  latest  and  best  improved  electrical 
devices  for  promptly  detecting  any  grounding  of  the  wires; 
that  at  the  time  the  wires  were  burned  off  at  Hempe's 
farm  a  tree  fell  upon  the  main  line  at  a  point  about  four 
miles  east  of  La  Grande,  breaking  the  wires,  the  grounding 
of  which  simultaneously  at  each  place  was  immediately  in- 
dicated at  the  station  at  Cove,  whereupon  the  plant  was 
instantly  shut  down  ;  that  the  break  in  the  main  line  was 
soon  thereafter  located  and  about  midnight  repaired,  when 
the  electric  power  was  applied  at  Cove  and  ** tested  out 
clear"  on  the  transmission  lines,  owing  to  the  fact  that  at 
Hempe's  farm  the  end  of  the  broken  wire  had  been  placed 
on  the  dry  picket  fence,  thereby  producing  such  insula- 
tion as  to  prevent  the  grounding  of  the  current  at  that 
place,  and  thus  rendering  it  impossible  to  detect  a  break 
in  the  wires  at  the  power  station  ;  that  at  Hot  Lake  the 
electric  substation  is  automatic  in  its  operation,  requiring 
only  occasional  attention  to  insure  its  efficiency,  and  on 
August  28,  1905,  an  employee  of  the  defendant  going  to 
that  place  discovered  that  two  of  the  wires  leading  thereto 
were  **dead,"  indicating  a  break  therein  on  the  branch 
line,  and  immediately  telephoned  the  person  managing 
the  power  plant,  who  instantly  stopped  the  machinery  in 
order  that  the  necessary  repairs  might  be  made.  In  a  few 
minutes  thereafter  the  defendant  was  notified  by  telephone 
that  a  man  had  been  killed  at  Hempe's  farm,  by  coming 
dangerously  near  or  in  contact  with  a  broken  wire,  such 
person  proving  to  be  plaintiff's  intestate. 

1.  The  care  which  the  law  exacts  from  any  person,  firm 
or  corporation,  engaged  in  operating  an  instrumentality 
is  always  in  proportion  to  the  degree  of  danger  reasonably 
to  be  apprehended  from  the  use  of  the  means  employed. 
Electricity  is  a  natural  force,  the  power  of  which  is  fully 
comprehended  only  by  experts,  who  may  be  aware  of  the 

47  Ob. 28 


434  Carroll  v.  Grande  Ronde  Elec.  Co.     [47  Or. 

measure  applied,  and,  when  such  instantaneous  energy  is 
transmitted,  either  in  large  quantities  or  at  high  voltage, 
the  wires  conducting  it  should  be  placed  and  kept  beyond 
the  reach  of  common  people  who  have  no  conception  of 
the  extreme  danger  to  which  proximity  to  or  contact  there- 
with will  necessarily  expose  them.  This  danger  is  aug- 
mented by  the  falling  of  electric  wires  in  places  of  common 
resort,  and  the  peril  is  enhanced  by  the  length  of  time  the 
wires  remain  down  in  such  localities.  Without  attempting 
to  discuss  the  defendant's  alleged  excuse  for  its  failure 
sooner  to  discover  the  break  in  the  wires  on  the  branch 
line,  we  shall  take  for  granted  that  permitting  a  wire 
charged  with  23,500  volts  of  electricity  to  remain  for 
about  20  hours  fastened  to  a  picket  fence,  beside  a  public 
highway,  in  such  a  condition  that  any  living  creature 
coming  in  contact  with  such  wire  must  necessarily  suffer 
death,  affords  prima  facie  evidence  of  negligence :  Boyd  v. 
Portland  Elec.  Co.,  40  Or.  126  (66  Pac.  576,  7  Am.  Electl. 
Cas.  661,  57  L.  R.  A.  619);  Haynes  v.  Raleigh  Gas  Co,,  114 
N.  C.  203  (5  Am.  Electl.  Cas.  264;  19  S.  E.  344,  26  L.  R.  A. 
810,  41  Am.  St.  Rep.  786). 

2.  Having  assumed,  without  deciding,  that  the  defend- 
ant's want  of  ordinary  care  in  failing  sooner  to  repair  its 
branch  line  was  the  primary  cause  of  the  injury  com- 
plained of,  it  remains  to  be  seen  whether  or  not  the  testi- 
mony introduced  by  the  plaintiff  shows  that  Leonard 
Carroll  was  also  guilty  of  negligence  contributing  to  his 
death.  It  has  been  repeatedly  held  in  this  State,  in  ac- 
tions to  recover  damages  resulting  from  a  personal  injury, 
that,  if  it  appears  from  the  testimony  offered  by  the  plain- 
tiff that  the  person  sustaining  the  hurt  was  also  guilty  of 
negligence,  without  which  the  injury  complained  of  would 
not  have  happened,  such  proof,  as  a  matter  of  law,  will 
defeat  a  recovery :  Tucker  v.  Northern  Term,  Co.,  41  Or.  82 
(68  Pac.  426,  11  Am.  Neg.  Rep.  629,  27  Am.  &  Eng.  R.  R. 


Jan.  1906.]     Carroll  v.  Grande  Ronde  Elec.  Co.       435 

Cas.  N.  S.  166);  Masaey  v.  Seller,  45  Or.  267  (77  Pac.  397 
11  Am.  Neg.  Rep.  553);  Abbot  v.  Oregon  Railroad  Co.,  46 
Or.  549  (80  Pac.  1012, 1  L.  R.  A.,  N.  S.  851,  39  Am.  &  Eng. 
R.  Cas.  N.  S.  52). 

In  Ar^derson  v.  Jersey  City  Elec,  Light  Co.,  64  N.J.  Law, 
665  (46  Atl.  593,  48  L.  R.  A.  616,  81  Am.  St.  Rep.  504), 
the  plaintiff,  desiring  to  convince  a  companion  that  an 
electric  wire  was  so  insulated  that  no  injury  could  result 
to  a  person  by  coming  in  contact  with  it,  deliberately 
touched  the  wire  to  make  the  demonstration,  when  he 
received  a  severe  shock,  seriously  injuring  him.  In  an 
action  to  recover  the  damages  sustained,  a  judgment  of 
nonsuit  was  rendered,  in  aflBrming  which,  Mr.  Justice 
GuMMERE,  referring  to  the  plaintiff,  says :  "He  knew  that 
the  wire  might  be  dangerous  if  the  insulation  was  not  per- 
fect, and,  having  voluntarily  assumed  the  risk  of  injury 
in  order  to  vindicate  the  soundness  of  his  judgment,  he 
has  no  one  but  himself  to  blame  for  the  consequences 
which  followed."  So,  too,  in  Wood  v.  Diamond  Elec.  Co., 
185  Pa.  529  (39  AtLllll),  a  person  having  been  killed  by 
coming  in  contact  with. a  wire  screen  charged  with  elec- 
tricity, which  screen  was  used  to  protect  glass  in  a  photo- 
graphic gallery  from  breaking,  the  plaintiff's  intestate,  to 
demonstrate  to  the  multitude  assembled  in  consequence 
of  the  death,  that  the  shield  was  not  laden  with  electricity, 
voluntarily  touched  it,  causing  his  death  also.  An  action 
having  been  instituted  to  recover  damages  sustained  by 
reason  of  the  latter's  death,  a  judgment  of  nonsuit  was 
given,  in  refusing  to  remove  which  the  court  on  appeal 
say:  "We  find  nothing  in  the  evidence  tending  to  prove 
that  the  proximate  cause  of  the  death  of  plaintiff's  hus- 
band was  the  defendant  company's  negligence.  On  the 
contrary,  it  clearly  appears  that  his  death  was  the  result 
of  his  own  voluntary,  deliberate  act  in  touching  the  screen 
heavily  charged  with  electricity,  in  the  face  of  ample  notice 


436  Carroll  v.  Grande  Rondb  Elec.  Co.     [47  Or. 

that  it  was  so  charged.  His  evident  purpose,  in  thus  touch- 
ing the  screen,  was  to  demonstrate  to  those  who  asserted 
it  was  thus  charged  that  they  were  mistaken." 

It  will  be  remembered  that  Frank  Hempe  testified  that, 
when  he  returned  Sunday,  August  27,  1905,  at  about  8 
o'clock  in  the  evening,  he"discovered  that  the  broken  wires 
were  emitting  sparks.  His  declaration  in  this  respect  con- 
tradicts the  averment  of  the  answer  that  the  electric  cur- 
rent was  not  turned  on  until  about  12  o'clock  that  night. 
It  will  also  be  kept  in  mind  that  this  witness,  on  Monday 
•  morning,  in  the  presence  of  Carroll,  warned  all  persons  at 
the  breakfast  table  to  keep  away  from  the  broken  wires, 
saying  they  were  extremely  dangerous,  and  that  by  com- 
ing in  contact  with  them  death  might  ensue.  Mrs.  Hempe, 
also,  in  Carroll's  hearing,  reiterated  the  warning.  It  must 
be  assumed  that  Carroll  knew  that,  if  he  approached  the 
broken  wires,  so  as  to  come  in  contact  with  them,  danger 
was  imminent.  Though  Carroll  was  not  present  when  the 
wires  burned  off  Sunday  evening,  he  must  have  known 
the  manner  in  which  Minnick  received  the  shock  that 
prostrated  him  on  that  occasion,  for  George  Hempe  testi- 
fied that  he  told  Carroll  that  Minnick  put  his  hand  out 
towards  the  wire.  Notwithstanding  Carroll's  knowledge 
of  the  dangerous  condition  of  the  broken  wires,  and  the 
warnings  given  by  Mr.  and  Mrs.  Hempe  to  keep  away  from 
the  place  where  he  was  injured,  he  evidently  concluded 
to  make  the  same  experiment  that  Minnick  tried,  and,  in 
doing  so,  he  was  killed. 

3.  It  is  argued  by  plaintiff's  counsel  that  the  law  recog- 
nizes a  distinction  between  knowledge  of  the  condition  of 
an  instrumentality  and  recognition  of  the  risk  incident 
thereto ;  and,  this  being  so,  though  Carroll  may  have 
known  that  to  approach  the  broken  wires  was  hazardous, 
the  court,  in  the  absence  of  any  testimony  tending  to  show 
that  he  was  aware  of  the  peril  to  which  he  was  exposed, 


Jan.  IQOe."!     Carroll  v.  Grande  Rondk  Elec.  Co.       437 

erred  in  concluding,  as  a  matter  of  law,  that  bis  death  was 
caused  by  his  contributory  negligence.  The  legal  prin- 
ciple involved  has  been  established  as  a  rule  in  this  State: 
Roth  V.  Northern  Pac.  Lum.  Co,,  18  Or.  205  (22  Pac.  842); 
Johnston  v.  Oregon  Short  Line  Ry,  Co.,  23  Or.  94  (31  Pac. 
28?0;  Viohl  V.  North  Pac,  Lum,  Co.,  46  Or.  297  (80  Pac.  112). 
These  cases  were  actions  instituted  by  servants  against 
their  masters  to  recover  damages  for  personal  injuries  re- 
ceived while  engaged  in  the  performance  of  duties  devolv- 
ing upon  the  plaintiffs,  respectively.  The  rule  thus  recog- 
nized is  based  upon  the  theory  that,  though  a  servant  may 
have  knowledge  of  the  dangers  incident  to  his  employ- 
ment, if  the  service  required  of  him  demands  a  speedy 
performance,  such  haste  will  excuse  his  temporary  lapse 
of  memory  in  failing  to  take  cognizance  of  the  peril  to 
which  he  is  exposed  :  Oiraudi  v.  Electric  Imp,  Co,,  107  Cal. 
120  (40  Pac.  108,  28  L.  R.  A.  596,  5  Am.  Electl.  Cas.  318, 
48  Am.  St.  Rep.  114).  In  the  case  at  bar,  the  relation  of 
master  and  servant  did  not  exist  between  Carroll  and  the 
defendant  company,  nor,  so  far  as  we  are  able  to  discover 
from  the  bill  of  exceptions,  was  there  any  necessity  com- 
pelling him  to  approach  the  broken  wires,  nor  any  circum- 
stances that  induced  him  for  an  instant  to  become  oblivi- 
ous to  the  peril  that  might  be  produced  from  contact  with 
them.  The  rule  invoked  cannot  therefore  have  any  appli- 
cation to  the  facts  involved. 

It  will  be  borne  in  mind  that  Carroll  was  24  years  old 
at  the  time  he  received  the  fatal  shock,  and  his  age  pre- 
cludes the  application  of  the  prevailing  rule  as  to  the 
liability  of  railroads  for  injuries  sustained  by  children 
while  playing  on  turntables,  or  for  hurts  sustained  by  per- 
sons of  immature  years  from  other  instrumentalities  which 
they,  by  the  carelessness  of  others,  are  permitted  to  ap- 
proach. Carroll  probably  did  not  know  that  the  wires 
transmitted  such  a  high  voltage  of  electricity.    He  had 


438  Carroll  v.  Grande  Ronde  Elec.  Co.     [47  Or. 

been  employed  at  Hempe's  farm  about  a  month  prior  to 
his  death,  and,  having  frequent  opportunity  to  observe  the 
condition  of  the  wires,  he  must  have  known  that  they  were 
uninsulated,  and  were  used  for  supplying  electricity  for 
lighting  purposes.  As  he  must  have  been  aware  of  these 
facts,  he  ought  also  to  have  known  that  contact  with  a  wire 
transmitting  sufficient  electricity  for  general  illumination 
was  extremely  dangerous,  and  he  should  have  accepted  the 
advice  of  Mr.  and  Mrs.  Hempe  and  remained  away  from 
the  broken  wires.  Instead  of  obeying  these  warnings,  he 
evidently,  like  Minnick,  desired  to  see  how  near  the  wire 
he  could  place  his  finger  without  sustaining  a  shock,  and, 
his  hand  coming  in  contact  with  the  wire  or  within  its 
danger  zone,  he  was  killed. 

We  think  his  act  in  this  respect  shows  such  contribu- 
tory negligence  as  to  prevent  a  recovery  of  the  damages 
sustained,  and  hence  the  judgment  is  affirmed. 

Affirmed. 


Decided  27  February,  1906. 

On  Motion  for  Rehearing. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

In  a  petition  for  a  rehearing,  plaintiff's  counsel,  in- 
voking the  rule  that  on  a  motion  for  a  judgment  of  non- 
suit all  reasonable  presumptions  and  every  legitimate 
inference  that  can  arise  from  the  evidence  should  be  in- 
voked in  favor  of  the  party  bringing  the  action,  so  as  to 
carry  the  case  to  the  jury,  insist  that  this  court,  in  review- 
ing the  testimony  given  at  the  trial,  improperly  considered 
parts  thereof  and  omitted  other  material  parts  to  the  in- 
jury of  their  client.  The  principal  objection  is  made  to  a 
statement  contained  in  the  opinion  to  the  effect  that  Leon- 
ard Carroll  pointed  his  finger  at  the  wire  when  he  was 
killed. 


Feb.  1906.]     Carroll  v.  Grande  Ronde  Elec.  Co.       439 

A  reexamination  of  the  bill  of  exceptions  shows  that 
George  Hempe,  as  plaintiff's  witness,  testified  that  Carroll 
went  with  him  to  the  picket  fence,  knowing  that  the  wit- 
ness was  going  to  test  the  wire  to  determine  whether  or 
not  it  was  still  alive.  Hempe  further  testified  that  the 
wire  was  broken  about  25  feet  from  the  pole  and  extended 
from  the  picket  to  which  it  was  fastened  northerly  up  to  the 
insulator  by  which  it  was  suspended,  and  that  the  pole 
referred  to  stood  in  the  public  road  about  six  or  eight 
feet  east  of  the  picket  fence.  In  answer  to  the  question  : 
**How  was  the  wire  with  reference  to  being  down  even 
with  the  fence  or  above  or  below  ?  What  was  the  relative 
position  of  the  wire  along  there?"  the  witness  replied: 
"To  my  remembrance  the  wire  was  about  that  high  from 
the  picket.  [About  five  or  six  inches.-gReporter.]"  Plain- 
tiff's counsel,  referring  to  Carroll,  inquired : 

**You  say  he  took  hold  of  one  of  the  pickets  with  his 
left  hand  ?"    Herape  answered :  **  Yes. 

Q.  About  what  distance  was  it  back  where  he  took  hold 
of  the  picket  from  the  end  of  the  wire  that  was  hanging 
on  the  picket? 

A.  Well,  I  think  it  was  about  two  feet  or  thereabouts. 

Q.  Then  how  far  was  the  wire  that  was  suspended  along 
in  front  of  the  pickets  ?  How  far  in  front  of  his  hand  was 
the  body  of  the  wire  along  there,  if  you  know  ?  How  close 
was  his  hand  to  it? 

A.  Well,  probably  about  eight  inches  from  the  wire. 

Q.  In  other  words,  the  wire  just  passed  by  his  hand 
towards  the  end  of  it? 

A.  Yes. 

Q.  Where  were  you  testing  it  with  the  stick? 

A.  At  the  end  of  the  wire. 

Q.  And  he  was  standing  at  the  north  side  of  you  was  he? 

A.  Yes." 

The  upper  end  of  a  picket,  cut  from  the  fence  above  the 
top  stringer  and  supposed  to  be  the  one  Carroll  grasped,' 
was  identified  by  the  witness,  offered  in  evidence,  and  sent 


440  Carroll  v.  Grande  Ronde  Elec.  Co.     [47  Or. 

up  as  an  exhibit.  This  part  of  the  picket  is  tapered  wholly 
on  one  edge  so  that  the  apex  is  in  line  with  the  opposite 
side. 

Defendant's  counsel,  referring  to  the  manner  in  which 
Carroll  was  injured,  inquired  : 

*'Isn't  it  a  fact  that  he  went  up  and  took  hold  of  the 
picket  there  and  stuck  his  finger  out  in  that  way? 

A.  Well,  when  he  took  hold  of  the  picket  he  reached  out 
and  took  hold  of  it  like  that,  and  these  three  fingers  closed 
while  the  other  extended. 

Q.  Extended  out  towards  the  wire  ? 

A.  Yes. 

Q.  Now,  when  you  saw  that  finger  sticking  out  there,  at 
that  instant  you  saw  the  flash  from  the  wire  to  his  finger, 
didn't  you  ? 

A.  Yes — not  at  that  instant  exactly,  but  a  very  short 
time  until  the  elecfricity  made  the  circuit.  *  * 

Q.  When  he  took  hold  of  the  picket,  was  he  turned  look- 
ing towards  you,  or  which  way  was  he  looking? 

A.  He  was  looking  almost  straight  ahead  of  him.  I  should 
think.  «  « 

Q.  Well,  now,  did  his  hand  come  in  contact  with  the 
wire  ? 

A.  I  don't  think  it  did.  The  last  time  I  saw  it  before 
the  blaze  started,  it  was  probably  about  eight  inches  from 
the  wire,  and  after  the  blaze  started  I  could  not  say. 

Q.  You  don't  know  whether  his  hand  came  in  contact 
with  the  wire  or  not  ? 

A.  I  don't  know.  It  didn't  before  the  current  started, 
and  after  the  current  started  I  could  not  say,  there  was 
such  a  bright  blaze. 

Q.  Now,  George,  isn't  it  a  fact,  that  he  walked  up  there, 
and,  when  you  were  testing  that  matter,  stepped  across 
the  ditch  and  simply  reached  out  his  hand  towards  that 
wire,  and  received  that  shock  ?   Isn't  that  a  fact,  Goorge? 

A.  No,  sir;  he  put  his  left  hand  on  the  fence. 

Q.  And  stuck  his  finger  out  towards  it  this  way?  That 
•is  the  way  he  did  it,  didn't  he? 

A.  I  can  show  you  with  the  picket. 

Q.  Didn't  he  point  his  finger  out  towards  the  wire? 


Feb.  1906.]     Carroll  v.  Grande  Ronde  Elec.  Co.       441 

A.  That  finger  never  closed.  The  other  three  fingers 
closed  on  the  picket,  and  the  fourth  finger  extended. 

Q.  Now,  don't  you  know,  as  a  matter  of  fax;t,  that  he 
was  pointing  his  finger  at  the  wire  ? 

A.  No,  I  don*t  know  it. 

Q.  Well,  why  do  you  say  then  that  he  didn't  point  his 
finger  at  the  wire? 

A.  I  didn't  say  exactly  that  he  didn't  point  his  finger 
at  the  wire. 

Q.  As  a  matter  of  fact,  from  where  he  took  hold  of  that 
picket  here,  his  finger — his  forefinger  of  his  left  hand  — 
was  pointing  out  directly  towards  the  wire,  wasn't  it  ? 

A.  Yes. 

Q.  You  don't  know  whether  his  finger  was  in  that  po- 
sition by  reason  of  the  fact  that  he  didn't  close  his  finger 
from  the  wire,  or  by  reason  of  the  fact  that  he  was  point- 
ing his  finger  at  the  wirfi? 

A.  Well,  he  never  said  anything,  so  I  don't  know. 

Q.  You  don't  know  whether  he  was  in  fact  pointing  at 
the  wire  to  see  how  close  he  could  get  to  it  without  re- 
ceiving a  deadly  shock,  or  not,  do  you  ? 

A.  No,  he  didn't  say." 

The  testimony  shows  that  Carroll  knew  when  he  went 
with  Hempe,  that  the  latter  was  going  to  test  the  wire,  to 
ascertain  whether  or  not  it  was  alive.  The  contemplated 
experiment  recognizes  the  existence  of  a  suspicion  that 
the  wire  might  possibly  be  charged  with  electricity,  which 
misgiving  is  evidenced  by  Hempe's  desire  to  avoid  per- 
sonal injury  by  securing  a  dry  stick  and  a  green  weed 
with  which  to  make  the  required  test.  It  will  be  remem- 
bered that  the  wire,  at  the  point  where  Carroll  grasped 
the  top  of  the  picket,  was  about  eight  inches  east  of,  and 
six  inches  above,  his  hand,  and  that  he  stood  facing  the 
east.  The  warnings  he  had  received  as  to  the  dangerous 
condition  of  the  wire  and  the  suspicion.be  entertained  in 
respect  thereto  put  him  on  his  guard  so  that  he  must  have 
seen  the  wire  when  he  was  looking  in  that  direction,  and 
it  would  seem  that,  as  he  did  not  instantaneously  receive 


442  Carroll  v.  Grande  Rondb  Elbc.  Co.     [47  Or. 

a  shock,  he  must  have  advanced  his  finger  outward  and 
upward  after  seizing  the  picket.  Whether  Carroll's  finger 
was  extended  in  consequence  of  the  peculiar  shape  of  the 
top  of  the  picket,  or. because  of  his  curiosity  and  desire  to 
ascertain  the  utmost  limit  at  which  electrical  energy  could 
be  appreciated,  is  unimportant,  for  no  different  rule  of  law 
can  be  invoked  as  applicable  to  his  action  in  either  case. 
When  Minnick  in  fastening  the  wire  to  the  fence  re- 
ceived a  shock,  George  Hempe's  back  was  turned  so  that 
the  latter  could  not  say  of  his  own  knowledge  whether  the 
injury  resulted  from  direct  contact  with  the  wire  or  by  com- 
ing within  the  danger  zone  thereof,  and,  though  Hempe 
told  Carroll  of  such  injury,  the  testimony  does  not  show 
that  Carroll  had  anj^  greater  knowledge  of  the  cause  of 
the  hurt  than  Hempe  possessed.  It  would  seem  reason- 
ably to  be  implied,  however,  that  Carroll  was  told  that 
such  injury  was  caused,  not  by  contact  with,  but  by  ap- 
proach to,  the  wire,  for  George  Hempe  testified  that  he 
informed  him  that  Minnick  put  his  hand  out  "towards" 
the  wire. 

5.  If  it  be  conceded  that  Carroll  supposed  that  Minnick 
was  injured  by  touching  the  wire,  does  the  law  in  such 
case  recognize  a  distinction  between  knowledge  of  the  ex- 
istence of  a  dangerous  instrumentality  and  recognition  of 
the  risk  incident  thereto?  An  affirmative  answer  to  this 
question  would  permit  a  stranger  to  touch  any  machinery 
which  was  running  so  rapidly  as  to  impart  no  notice  of 
its  motion,  in  order  to  satisfy  his  curiosity,  and,  if  in  mak- 
ing the  demonstration  any  injury  was  sustained,  the  owner 
of  the  instrumentality  would  be  liable  therefor  if  he  was 
negligent  in  permitting  such  appliance  to  remain  exposed. 

6,  The  law  imf^oses  upon  a  person  sui  juris  the  obliga- 
tion to  use  ordinary  care  for  his  own  protection,  the  de- 
gree of  which  is  commensurate  with  the  danger  to  be 
avoided.    As  danger   from  uninsulated  wires  is  propor- 


Feb.  1906.]     Carroll  v.  Grande  Ronde  Elec.  Co.       443 

tionated  by  the  amount  of  electricity  so  transmitted,  con- 
tact with  such  wires  should  be  avoided  when  their  exist- 
ence is  known.  So,  too,  suspicion,  entertained  by  a  person 
of  suitable  age  and  reasonable  discretion,  that  a  fallen  wire 
is  charged  with  electricity,  should  induce  him  to  shun,  if 
possible,  the  surmised  peril,  for  the  rule  of  law  is  that  one 
who  voluntarily  assumes  a  position  of  danger,  the  hazards 
of  which  he  understands  and  appreciates,  cannot  recover 
for  an  injury  from  a  risk  incident  to  the  position  :  Fitz- 
gerald V.  Connecticut  River  Paper  Co.,  155  Mass.  155  (29  N. 
E.  464,  31  Am.  St.  Rep.  537);  Robinson  v.  Manhattan  Ry. 
Co.,  (Com.  PI.)  25  N.  Y.  Supp.  91. 

Leonard  Carroll  entertained  a  suspicion  as  to  the  danger 
that  might  result  from  contact  with  the  broken  wire,  but 
he  evidently  did  not  know  that,  if  it  was  "alive,"  it  was 
80  heavily  charged  with  electricity  that  death  would  ensue 
if  he  came  within  the  hazard  belt.  As  he  had  been  warned, 
however,  of  the  danger  by  Mr.  and  Mrs.  Hempe,  informed 
by  their  son  George  that  Minnick  received  a  shock  that 
prostrated  him  by  putting  his  hand  up  "towards"  the 
wire,  and  knew  that  a  test  was  to  be  made  to  ascertain 
whether  or  not  electricity  was  present,  thereby  imputing 
a  suspicion  of  its  existence,  we  think  the  testimony  shows 
that  he  voluntarily  assumed  a  position  of  danger,  the  haz- 
ards of  which  ought  to  have  been  known  by  a  person  of 
his  age  and  discretion. 

The  petition  is  therefore  denied. 

Affirmed:  Rehearing  Denied. 


444  Mount  v.  McAulay.  [47  Or. 

Decided  30  January,  rehearing  denied  27  February,  1906. 

MOUNT   V.  McAULAY. 

83  Pac.  520. 

QniBTiNO  Title— Ci:x)UD  Created  by  Void  Deed. 

1.  A  suit  to  remove  a  cloud  from  a  title  may  be  maintained  even  if  the  Instru- 
ment constituting  the  cloud  is  void  on  its  face. 

Limitation  on  Suit  to  Quiet  Title  Against  Tax  Deed. 

2.  Sections  3128  and  3146,  B.  <&  C.  Comp.,  providing  that  any  action  for  the 
recovery  of  land  sold  for  taxes  shall  be  commenced  within  three  years  ftam  the 
recording  of  the  tax  deed,  apply  only  to  actions  for  the  recovery  of  land  sold  for 
taxes,  and  not  to  suits  to  quiet  title  or  determine  an  adverse  claim  thereto. 

Idem. 

8.  Section  3135,  B.  A  C.  Comp.,  providing  a  limitation  of  two  years  from  the 
recording  of  a  tax  deed  for  suits  to  set  aside  tax  sales  or  remove  the  cloud  on  a 
title  created  by  a  tax  sale,  refers  only  to  deeds  given  to  counties  pursuant  to  pur- 
chases by  them  at  delinquent  tax  sales  under  the  statute. 

From  Baker :  Samuel  White,  Judge. 

Statement  by  Mr.  Justice  Bean. 

This  suit  was  commenced  in  June,  1905,  by  .Elsie  L. 
Mount  against  Robert  McAulay  and  others  to  remove  a 
cloud  from  title  caused  by  a  tax  deed,  and  comes  here  on 
appeal  from  a  decree  entered  on  a  demurrer  to  the  com- 
plaint, which  avers  that  from  1893  to  the  16th  day  of 
April,  1895,  L.  O.  Stearns  was  the  owner  of  the  premises 
in  controversy,  except  a  right  of  way  100  feet  wide  over 
and  across  the  same,  owned  and  occupied  by  the  Oregon 
Railway  &  Navigation  Co.,  for  railroad  purposes;  that 
prior  to  the  1st  day  of  March,  1895,  Martha  E.  Hallett 
and  Fred  N.  Hallett  purchased  Stearns*  interest  in  such 
property  under  a  decree  foreclosing  a  mortgage  thet^on, 
and  received  a  sheriff's  deed  on  April  16, 1895,  which  was 
duly  recorded  on  the  25th  of  May  following ;  that  the  Hal- 
letts  owned  and  possessed  the  property,  except  the  right 
of  way  referred  to,  until  June  5, 1905,  when  they  sold  and 
conveyed  the  same  to  the  plaintiff,  ever  since  which  time 
she  had  been  the  owner  in  fee  simple  and  in  the  possession 
thereof;  that  the  defendants  claim  some  interest  or  estate 
therein  by  virtue  of  a  tax  deed  dated  September  23, 1899, 


Jan.  1906.]  Mount  v.  McAulay.  445 

and  recorded  on  the  4th  of  October  of  the  same  year,  made 
in  pursuance  of  a  sale  by  the  sheriff  of  Baker  County  to 
satisfy  what  purported  to  be  the  delinquent  taxes  assessed 
against  the  property  for  the  year  1895,  a  copy  of  which 
deed  is  annexed  to  and  made  a  part  of  the  complaint ;  that 
such  deed  is  void  and  of  no  effect  for  divers  and  sundry 
reasons  set  out ;  that  since  the  execution  thereof  and  prior 
to  the  commencement  of  this  suit  the  plaintiff  tendered 
to  defendants  the  amount  for  which  the  lands  were  sold 
at  tax  sale,  together  with  20  per  cent  additional  thereon, 
and  all  taxes  which  had  been  paid  by  the  purchasers  after 
such  sale,  together  with  interest  thereon  at  the  rate  of  10 
per  cent  per  annum  from  the  respective  times  of  payment 
of  such  sums  up  to  the  time  of  the  filing  of  the  complaint, 
and  deposited  in  court  the  sum  of  $75,  from  which  the 
above  amounts  might  be  paid.  Reversed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr.  Orville  Buyland  Mount. 

For  respondent  there  was  a  brief  and  an  oral  argument 
by  Mr.  F.  M.  Saxton. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

1.  It  is  admitted  by  the  defendants,  if  we  understand 
their  position,  that  the  allegations  of  the  complaint  are 
sufficient,  if  true,  to  avoid  the  tax  sale  and  deed.  Their 
contention,  however,  is  that,  if  the  tax  deed,  as  plaintiff 
claims,  is  void  on  its  face,  it  does  not  create  such  a  cloud 
on  the  title  of  the  plaintiff  as  will  be  relieved  against  by  a 
court  of  equity ;  and  that,  if  it  is  not  so  void,  this  suit  is 
barred  by  the  short  statute  of  limitations.  The  fact  that 
a  dfeed  or  instrument  purporting  to  convey  real  estate  is 
void  on  its  face  is  no  objection  to  the  interposition  of  a 
court  of  equity,  at  the  suit  of  the  owner  who  is  in  posses- 
sion, to  cancel  and  annul  such  deed.  A  void  deed  is  often 
apt  to  create  doubt  and  uncertainty  in  respect  to  the  title 


446  Mount  v,  McAulay.  [47  Or. 

of  the  true  owner  and  to  interfere  materially  with  the  en- 
joyment and  disposition  of  His  property,  and  therefore 
equity  will  relieve  against  it:  Murphy  v.  Sears,  11  Or.  127 
(4  Pac.  471);  White  v.  Espey,  21  Or.  328  (28  Pac.  71); 
George  v.  Nowlan,  38  Or.  537  (64  Pac.  1);  Hughes  v.  Linn 
County,  37  Or.  Ill  (60  Pac.  843);  Moores  v.  Clackamas 
County,  40  Or.  536  (67  Pac.  662).  And  so  there  is  no 
merit  in  this  objection. 

2.  If,  on  the  other  hand,  the  deed  is  not  void  on  its  face, 
we  do  not  think  the  suit  is  barred  by  the  short  statute  of 
limitations.  There  are  three  sections  of  the  statute  now 
applicable  to  the  limitation  of  actions  and  suits  concern- 
ing land  sold  for  delinquent  taxes  (B.  &  C.  Comp.  §§  3128, 
3135, 3146),  but  one  of  which,  however  (Section  3146),  was 
in  force  at  the  time  the  deed  in  question  was  made.  Sec- 
tions 3146  and  3128  provide,  in  substance,  that  any  action 
or  suit  for  the  recovery  of  land  sold  for  taxes,  except  where 
the  taxes  have  been  paid  or  the  land  redeemed,  shall  be 
commenced  within  a  certain  definite  time;  but  both  of 
these  sections  apply  only  to  actions  or  suits  for  the  recoverj' 
of  such  land,  and  not  to  suits  to  quiet  title  or  determine 
an  adverse  claim  thereto:  Farrar  v.  Clark,  85  Ind.  449; 
Bowen  v.  Striker,  87  Ind.  317;  Earle  v.  Simmons,  94  Ind 
573;  Kraus  w .  Montgomery ,  114  Ind.  103  (16  N.  E.  153). 

3.  Section  3135  is  section  5  of  an  act  to  amend  the  act 
of  1893  (Laws  1901,  p.  73),  authorizing  county  judges  and 
clerks  of  school  districts  to  bid  in  property  sold  for  taxes 
and  to  provide  for  the  sale  of  the  same  (Laws  1893,  p.  28), 
and  the  limitation  clause  therein  clearly  has  reference  to 
suits  involving  the  validity  of  deeds  given  by  a  sheriff  for 
property  bid  in  by  the  county  for  delinquent  taxes,  and 
which,  by  this  latter  act,  he  is  authorized  and  required  to 
sell.  By  Section  3,  p.  72,  of  the  act  of  1901,  it  is  made  the 
duty  of  the  sheriff  of  every  county  in  the  State  which  had 
theretofore  bid  in  land  for  taxes,  and  to  which  the  county 


Jan.  1906.]  Mount  v,  McAulay.  447 

had  acquired  title,  to  sell  the  same  to  the  highest  bidder 
for  cash  in  manner  and  form  as  upon  sales  under  execu- 
tion, and  by  Section  4,  p.  73,  as  soon  as  practicable  there- 
after, to  make  to  the  respective  purchasers  deeds  for  the 
several  parcels  sold  to  them.  Section  5  declares  the  force 
and  effect  of  deeds  given  by  the  sheriff  at  "sales  of  real 
property  herein  provided  for,"  and,  after  declaring  that  in 
any  action,  suit  or  proceeding  brought  to  set  aside  the  sale 
of  lands  to  counties  and  other  public  corporations  for 
taxes,  or  to  quiet  title  against  the  same,  or  remove  cloud 
therefrom,  the  person  claiming  the  ownership  as  against 
the  purchaser  shall  tender  and  pay  into  court  with  his  first 
pleading  the  amount  of  taxes  and  costs  for  which  the  lands 
were  sold,  together  with  interest  thereon,  and  all  taxes  and 
assessments  paid  by  the  purchaser  since  the  sale,  provides : 

'*Nor  shall  any  such  action,  suit,  or  preceeding  be 
brought  unless  within  two  years  from  the  date  of  record 
of  the  deed  by  the  sheriff." 

As  appears  from  the  title  and  body  of  the  act,  it  has 
reference  to  lands  bid  in  by  counties  at  delinquent  tax 
sales  and  to  the  sale  and  disposition  thereof.  The  only 
deed  therein  mentioned  or  referred  to  is  the  one  to  be  given 
by  the  sheriff,  as  provided  in  Section  4,  and  therefore  the 
clause  quoted  necessarily  must  have  reference  to  such  deed, 
and  not  to  a  deed  given  by  a  sheriff  to  a  purchaser  at  a 
delinquent  tax  sale. 

For  these  reasons,  we  think  the  court  below  was  in  error 
in  sustaining  the  demurrer  to  the  complaint.  The  ques- 
tions sought  to  be  litigated  can  be  more  intelligently  con- 
sidered after  a  trial  upon  the  issues  tendered  by  the 
complaint,  and  we  therefore  refrain  from  expressing  any 
opinion  upon  the  other  questions  argued  by  counsel.  The 
decree  will  be  reversed,  and  the  suit  remanded  to  the  court 
below,  for  such  further  proceedings  as  may  be  proper,  not 
inconsistent  with  this  opinion.  Reversed. 


448  Pacific  University  v.  Johnson.  [46  Or. 

Argued  11  January,  decided  20  February,  1906. 
PACIFIC  UNIVERSITY  v.  JOHNSON. 

84  Pac.  701. 

Statutory  Construction  —  Intoxicating  Liquors. 

Under  the  rule  of  construction  declared  by  Section  707  of  B.  A  C.  Com  p.,  Xbat 
the  legislative  intention  shall  be  followed,  if  possible,  it  must  be  held  that  the 
council  of  the  City  of  Forest  Orove  has  not  authority,  under  the  charter  of  1801,  to 
license  the  sale  of  intoxicating  liquors.  The  authority  to  "regulate,"  in  view  of 
the  history  of  the  charter  and  the  social  conditions  that  have  long  existed  at  that 
point,  does  not  imply  the  right  to  license,  but  rather  the  right  to  control  the  dis- 
posal  of  liquors  by  some  other  means. 

From  Washington  :  Thomas  A.  McBride,  Judge. 

Statement  by  Mr.  Justice  Hailey. 

This  a  suit  brought  by  Pacific  University,  an  educa- 
tional institution  existing  under  a  special  act  of  the  coun- 
cil of  the  Territory  of  Oregon,  passed  January  10,  1854, 
to  restrain  C.  N.  Johnson  and  others,  who  are  the  mayor 
and  city  officers  of  the  City  of  Forest  Grove,  and  one  Al- 
bert G.  Watson,  from  issuing  to  said  Watson  a  license  to 
conduct  a  saloon  and  sell  intoxicating  and  spirituous 
liquors  therein  in  the  City  of  Forest  Grove,  pursuant  to 
an  ordinance  passed  by  the  common  council  of  said  city, 
which  ordinance  the  plaintiff  claims  is  void  for  the  reason 
that  the  city  council  had  no  authority  under  its  charter  to 
license  the  sale  of  intoxicating  liquors  within  its  limits. 
A  demurrer  was  filed  to  the  complaint  in  the  court  below, 
and  after  it  had  been  overruled  the  defendants  declined 
to  plead  further,  and  a  decree  was  entered  as  prayed  for 
in  the  complaint,  prohibiting  the  issuance  of  a  license  and 
the  establishment  of  a  saloon,  in  effect  holding  the  ordi- 
nance void,  and  declaring  that  the  city  had  no  authority 
to  grant  a  license  for  the  sale  of  intoxicating  liquors,  from 
which  decree  this  appeal  has  been  perfected. 

Affirmed. 

For  appellants  there  was  a  brief  over  the  names  of  Ed- 
mund  Burke  Tongue  and  Cake  &  Cake,  with  oral  arguments 
by  Mr,  Tongue  and  Mr,  William  Marion  Cake, 


Feb.  1906.]     Pacific  University  v.  Johnson.  449 

For  respondent  there  was  a  brief,  with  oral  arguments 
by  Mr.  Samuel  Bruce  Huston  and  Mr.  Henry  Hale  Northup. 

Mr.  J  asTiCE  Hailey  delivered  the  opinion  of  the  court. 

The  only  question  involved  on  this  appeal  is  whether  or 
not  under  the  charter  of  the  City  of  Forest  Grove  the  com- 
mon council  has  authority  to  grant  a  license  for  the  sale 
of  intoxicating  liquors  within  its  limits.  The  portion  of 
the  charter  in  question  is  Clause  7  of  Section  7  of  Article 
6,  conferring  upon  the  common  council  power  and  author- 
ity *'to  suppress,  regulate  and  prohibit  the  sale  or  giving 
away  of  spirituous,  malt  or  vinous  liquors,  or  other  intoxi- 
cating compounds,  or  cigarettes,"  found  on  page  435  of  the 
Session  Laws  of  1895.  It  is  contended  on  the  part  of  de- 
fendants that  the  word  ** regulate,"  as  used  in  the  foregoing 
clause,  includes  the  power  to  license  the  sale  of  intoxica- 
ting compounds ;  while  the  plaintiff  argues  that  the  omis- 
sion of  the  word  "license"  from  that  clause,  and  its  use  in 
the  clauses  immediately  preceding  and  succeeding  the  one 
quoted,  coupled  with  the  fact  that  the  amended  charter  of 
the  City  of  Forest  Grove,  enacted  in  1885,  omitted  the  word 
**license,"  which  had  been  in  the  original  charter  granted 
in  1872,  does  not  authorize  the  common  council  to  license 
the  sale  of  intoxicating  compounds.  The  word  "regulate" 
is  construed  by  the  defendants  to  be  a  much  broader  term 
than  the  original  word  "license,"  dropped  from  the  charter 
when  amended  in  1885,  and  it  is  claimed  by  them  to  be  an 
enlargement,  rather  than  a  restriction,  of  the  powers  con- 
ferred upon  the  council  in  the  matter  of  the  sale  of  intoxi- 
cating compounds;  while  the  construction  placed  upon  the 
word  "regulate"  by  plaintiff  restricts,  rather  than  enlarges, 
the  powers  of  the  council. 

There  are  certain  established  and  well-recognized  rules 

which  must  be  considered  in  the  construction  of  every  law. 

Among  others,  our  Code  provides : 
17  Or.  —  •-» 


450  Pacific  University  v.  Johnson.  [47  Or. 

First.  "In  the  construction  of  a  statute  or  instrument, 
the  office  of  the  judge  is  simply  to  ascertain  and  declare 
what  is,  in  terms  or  in  substance,  contained  therein,  not 
to  insert  what  has  been  omitted,  or  to  omit  what  has  been 
inserted ;  and  where  there  are  several  provisions  or  par- 
ticulars, such  construction  is,  if  possible,  to  be  adopted  as 
will  give  effect  to  all."  B.  &  C.  Com  p.  §  706. 

Second.  "In  the  construction  of  a  statute  the  intention 
of  the  legislature  *  *  is  to  be  pursued  if  possible;  and 
when  a  general  and  particular  provision  are  inconsistent, 
the  latter  is  paramount  to  the  former.  So  a  particular  in- 
tent shall  control  a  general  one  that  is  inconsistent  with 
it."   B.  &  C.  Comp.  §  707. 

This  legislative  intention,  however,  must  be  ascertained 
from  the  words  used  in  connection  with  the  surrounding 
circumstances :  State  ez  reL  v.  Simon,  20  Or.  365  (26  Pac. 
170).  Again,  where  a  statute  has  been  amended,  resort  may 
be  had  to  the  original  act  to  explain  any  ambiguity  which 
may  exist  in  the  language  of  the  amended  act,  but  not  to 
supply  omissions;  and  statutes  and  parts  of  statutes  omit- 
ted from  amendments  to  such  statutes  are  to  be  construed 
as  annulled,  and  cannot  be  revived  by  construction,  nor 
can  a  court,  in  order  to  give  effect  to  what  is  supposed  to 
be  the  intention  of  the  legislature,  put  upon  the  provisions 
of  a  statute  a  construction  not  supported  by  the  words. 
The  court  cannot  supply  omissions  of  the  legislature : 
State  ex  rel.  v.  Siynon,  20  Or.  365  (26  Pac.  170).  "The  set- 
tied  rule  of  construction  of  grants  by  the  legislature  to 
corporations,  whether  public  or  private,  is  that  only  such 
powers  and  rights  can  be  exercised  under  them  as  are 
clearly  comprehended  within  the  words  of  the  act  or  de- 
rived therefrom  by  necessary  implication ;  regard  being 
had  to  the  objects  of  the  grant.  Any  ambiguity  or  doubt 
arising  out  of  the  terms  used  by  the  legislature  must  be 
resolved  in  favor  of  the  public":  Sutherland,  Stat.  Const. 
§380. 


Feb.  1906.]    Pacific  University  v.  Johkson.  451 

Applying  the  foregoing  rules  of  construction  to  the  case 
in  hand)  we  find  that,  under  the  original  charter  granted 
the  Town  of  Forest  Grove  in  1872,  the  board  of  trustees 
was  given  power,  among  other  things: 

**To  license,  tax,  regulate,  restrain  and  prohibit  theatri- 
cal and  other  exhibitions,  shows  and  amusements,  the  sale 
of  intoxicating  liquors,  ale  and  beer." 

It  further  appears  that  in  1885,  by  a  new  charter,  re- 
pealing the  old,  the  board  of  trustees  had  power  and  au- 
thority, first: 

"To  license,  tax  and  regulate  auctioneers,  taverns,  hawk- 
ers, peddlers,  pawnbrokers,  and  all  offensive  or  noxious 
trades  or  occupations"; 

Second,  **to  license,  tax  and  regulate  theatrical  and 
other  exhibitions,  shows,  public  amusements,  billiard 
tables,  bowling  alleys,  and  no  tax  or  license  given  under 
this  act  shall  be  less  than  that  required  under  the  general 
laws  of  the  State"; 

Third,  *'to  suppress,  regulate  and  prohibit  the  sale  or 
giving  away  of  any  intoxicating  liquors,  ale  or  beer." 

In  1891  a  new  charter  was  granted  ta  the  City  of  Forest 
Grove  and  the  old  charter  of  1885  repealed,  and  in  this 
new  charter  the  common  council  was  given  power  and 
authority,  under  Article  6,  §  7,  cl.  6 : 

**To  license,  tax  and  regulate  theatrical  and  other  ex- 
hibitions, shows,  public  amusements,  billiard  tables  and 
bowling  alleys,  and  no  tax  or  license  given  under  this  act 
shall  be  less  than  that  required  under  the  general  laws  of 
the  State  in  force  at  the  time  such  license  is  issued." 

7.  "To  suppress,  regulate  and  prohibit  the  sale  or  giving 
away  of  spirituous,  malt  or  vinous  liquors  or  other  intoxi- 
cating compounds." 

8.  **To  license,  tax  and  regulate  auctioneers,  taverns, 
drays,  hacks,  wagons,  hawkers,  peddlers,  brokers,  pawn- 
brokers, money  changers,  traveling  salesmen  and  solici- 
tors, and  all  business  houses,  branches  of  business  or  pro- 
fessions not  elsewhere  in  this  act  otherwise  provided  for." 


452  Pacific  University  v.  Johnson.         [47  Or. 

In  1893  this  last  charter  was  amended  by  adding  the 
words  "or  cigarettes"  to  clause  7. 

It  will  be  noted  that  in  the  original  grant  of  power  over 
the  liquor  traffic  in  Forest  Grove  the  board  of  trustees  had 
power  to  "license,  tax,  regulate,  restrain  and  prohibit"  the 
sale  of  intoxicating  liquors,  but  in  the  charter  adopted  in 
1885  the  words  "license,  tax  and  restrain"  were  omitted, 
and  the  words  "regulate  and  prohibit"  retained,  and  the 
word  "suppress"  added.  While,  as  affecting  the  power  over 
theatrical  and  other  exhibitions,  the  words  "license,  tax 
and  regulate"  were  retained,  and  are  still  retained  and 
made  applicable  to  all  matters  mentioned  in  clauses  6  and 
8  of  section  7  of  article  6  of  the  charter  now  in  force,  yet 
the  words  "license  and  tax"  are  not  used  in  clause  7  of 
said  section.  The  necessary  inference,  then,  from  this  re- 
tention of  the  words  "license  and  tax,"  as  used  in  clauses 
6  and  8  of  section  7,  and  the  omission  of  such  words  in 
clause  7  of  said  section,  is  that  the  legislature  did  not  in- 
tend to  confer  authority  upon  the  common  council  to 
license  or  tax  the  sale  of  intoxicating  liquors  mentioned 
in  clause  7,  but  expressly  limited  the  power  conferred  b^'" 
said  clause  to  suppressing,  regulating  and  prohibiting 
such  traffic.  In  clauses  6  and  8,  as  slated  above,  the  words 
"license  and  tax"  are  used  in  connection  with  the  word 
"regulate,"  and,  having  been  so  used  in  those  clauses^ 
there  can  be  no  other  interpretation  of  the  legislature's 
intent  in  omiting  the  use  of  the  words  "license  and  tax"^ 
in  clause  7  than  that  such  omission  was  for  the  purpose 
of  limiting  the  power  of  the  common  council  to  regula- 
ting. The  legislature  evidently  did  not  give  to  the  word 
"regulate"  in  clauses  6  and  8  the  broad  meaning  which 
defendants  claim  it  bears  in  clause  7,  to  wit,  that  of  in- 
cluding the  power  to  license  and  tax ;  for,  if  it  had  so 
done,  then  the  use  of  the  words  "license  and  tax"  in  these 
two  clauses,  in  connection  with  the  word  "regulate,"  would 


Feb.  1906.]     Pacific  University  v.  Johnson.  453 

have  been  surplusage,  and  such  a  construction  would  vio- 
late the  well-known  rule  of  interpretation  that  every  word 
used  must  be  given  a  meaning  it  possible.  We  therefore 
conclude  that  in  the  use  of  the  words  **license  and  tax"  in 
clauses  6  and  8  the  legislature  conferred  express  power 
upon  the  commbn  council  to  do  what  those  words  import, 
and  in  the  omission  of  the  use  of  those  words  in  clause  7 
it  is  clearly  intended  not  to  grant  power  to  do  what  the 
omitted  words  import. 

It  is  argued,  however,  that  the  whole  policy  and  intent 
of  the  law  of  this  State,  as  evinced  by  the  acts  of  the  legis- 
lature, is  not  along  the  line  of  prohibition,  but  rather  along 
the  line  of  license,  leaving  the  entire  matter  to  the  incor- 
porated town  or  city  for  determination,  which  may  be  true 
in  a  certain  sense  ;  but,  under  the  rule  that  a  particular  in- 
tent shall  control  a  general  one  that  is  inconsistent  with  it, 
we  hold  that  whatever  the  general  intent  of  the  legislature 
may  have  been  as  to  its  policy  regarding  the  liquor  traffic 
in  the  State,  in  this  case  the  particular  intent  was  not  to 
confer  the  power  of  licensing  such  busines  upon  the  com- 
mon council  of  the  City  of  Forest  Grove.  To  read  the 
omitted  word,  **license,"  into  clause  7  would  be  to  supply 
the  words  omitted  from  the  amended  law  and  thus  revive 
by  construction  what  had  been  eliminated  by  positive  en- 
actment, and  this  the  court  cannot  do.  Again,  when  there 
is  any  ambiguity  or  doubt  arising  out  of  the  terms  used  by 
the  legislature,  such  doubt  must  be  resolved  in  favor  of  the 
public,  or,  in  other  words,  where  the  words  used  do  not 
in  themselves  or  by  clear  implication  confer  the  power 
claimed  by  a  corporation,  public  or  private,  such  power  is 
iiot  granted  to  the  corporation,  but  reserved  to  the  public. 
In  this  case,  the  word  "regulate''  having  been  used  in  at 
least  two  of  the  clauses  of  the  charter  in  question  in  its 
limited  sense,  as  not  including  the  power  to  license  or  tax, 
we  cannot  presume  or  infer  that  it  has  a  broader  meaning 


454  Pacific  University  v.  Johjjson.         [47  Or. 

when  used  in  the  clause  now  in  question.  It  is  true  there 
are  many  cases  in  the  Reports  which  have  given  to  the 
word  "regulate"  a  meaning  broad  enough  to  include  the 
power  to  license ;  but,  in  construing  this  word  in  the  stat- 
ute before  us,  we  must  do  so  in  the  light  of  surrounding 
circumstances,  and  the  history  of  the  legislation  of  this 
State  upon  the  immediate  subject  before  us  in  the  locality 
to  which  it  applies. 

The  history  of  that  locality  as  set  forth  in  the  pleading 
shows  that  the  plaintiff  is  an  institution  of  learning,  pat- 
ronized by  many  young  people,  and  possessed  of  valuable 
properties,  the  title  to  which  was  given  conditional  that 
no  intoxicating  liquors  should  be  allowed  sold  or  used 
upon  the  premises,  and  that  in  the  history  of  the  City  of 
Forest  Grove,  the  site  of  plaintiff's  location,  no  license  has 
ever  been  issued  for  the  sale  of  intoxicaling  liquors,  and 
these  facts,  together  with  the  legislative  history  of  the 
charter,  which  shows  that,  although  at  one  time  the  power 
to  license  the  sale  of  intoxicating  liquors  was  conferred 
upon  the  board  of  trustees,  such  power  was  afterward  re- 
stricted by  striking  the  word  "license"  from  the  charter, 
all  of  which  evidences  are  to  be  considered  in  determining 
the  intention  of  the  legislature,  clearly  impel  us  to  the  belief 
that  the  legislature  did  not  intend  to  grant  to  the  city  coun- 
cil power  to  do  more  than  regulate  the  liquor  traffic.  Forest 
Grove  being  a  college  town,  where  young  people  gather  for 
instruction  and  learning,  and  manj^  homes  having  doubt- 
less been  established  for  the  education  of  sons  and  daugh- 
ters, we  can  readily  see  why  the  legislature  in  its  wisdom 
would  hesitate  to  license  the  sale  of  intoxicating  liquors, 
which  necessarily  brings  into  existence  the  saloon,  a  place 
where  those  who  indulge  in  such  things  habitually  congre- 
gate and  spent  their  time,  but  might  confer  the  power  to 
regulate  such  traffic  in  the  way  of  permitting  the  sale  of 
liquors  for  medicinal  and  other  purposes,  where  the  sale 


Jan.  1906.]  State  v.  Taylor.  455 

would  not  permit  the  people  to  gather  in  numbers  and  loaf 
and  loiter  as  they  often  do  about  a  saloon.  To  license  is 
one  thing  and  to  regulate  another.  To  license  means  to 
permit,  to  give  authority  to  conduct  and  carry  on ;  while 
to  regulate  means  to  prescribe  the  manner  in  which  a 
thing  licensed  may  be  conducted. 

It  is  argued  on  the  part  of  defendants  that  the  power  to 
regulate  necessarily  implies  the  existence  of  that  which  is 
to  be  regulated, which  is  true;  but  the  further  contention 
made  by  defendants  that  the  power  to  regulate  necessarily 
implies  the  sale  of  intoxicating  liquors,  and  therefore  the 
existence  of  a  saloon  where  such  sale  can  be  made,  does 
not  follow.  The  common  council  might  have  power  to 
regulate  the  sale  of  liquor  for  medicinal  and  other  pur- 
poses, and  the  sale  thereof  could  readily  be  made  in  accord- 
ance with  such  r^ulations,  without  being  done  in  a  saloon 
or  place  of  resort  where  people  might  congregate  and  drink 
to  excess. 

Taking,  then,  the  charter  by  its  four  corners,  and  con- 
sidering it  by  the  rules  of  construction  laid  down  in  the 
beginning  of  this  opinion,  we  are  constrained  to  hold  that 
no  power  was  conferred  by  the  legislature  upon  the  com- 
mon council  of  the  City  of  Forest  Grove  to  license  the  sale 
of  liquors  within  its  limits,  and  that  the  ordinance  attempt- 
ing to  do  so  is  void,  and  the  decree  of  the  lower  court  herein 
should  be  and  is  affirmed.  Affirmed. 


Decided  2  January,  rehearing  denied  30  January,  1906. 

STATE   V.  TAYLOR. 

84  Pac.  82. 

Attempt  to  Commit  Crime*  — Overt  Acts. 

The  paying  of  money  to  another  as  compensation  for  his  assistance  In  com- 
mitting a  crime,  the  providing  of  means  appropriate  to  the  desired  purpose,  and 


•  Note.— See  an  extensive  annotation  to  People  v.  Morarif  in  20  Am.  St.  Rep, 
741-748,  The  Crime  of  Attempting  to  Commit  a  Crime;  and  in  10  L.  R.  A.  10»,  At- 
tempt to  Commit  a  Crime  as  a  Crime.  See,  also,  93  Am.  St.  Rep.  GOO,  and  50  L.  R.  A 
608.  Reporter. 


456  State  v.  Taylor.  [47  Or. 

the  giving^  of  directions  concerning  the  time  and  manner  of  committing  the 
crime,  are  nets  that  constitute  an  attempt  to  commit  the  crKne,  under  Section 
2150,  B.  <&  C.  Comp.:  8UUe  v.  Hull,  33  Or.  5tf,  distinguished. 

From  Umatilla:   William  R.  Ellis,  Judge. 

Moses  Taylor  appeals  from  a  conviction  of  attempted 
arson.    The  facts  are  stated  in  the  opinion.    Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  Carter, 
Raley  &  Raley,  and  Peterson  &  Peterson,  with  an  oral  argu- 
ment by  Mr.  James  Henry  Raley  and  Mr.  William  McDow- 
ell Peterson. 

For  the  State  there  was  a  brief  over  the  names  of  Gilbert 
Walter  Phelps,  District  Attorney,  and  John  McCourt,  with 
an  oral  argument  by  Mr.  Andrew  Murray  Crawford,  Attor- 
ney General,  and  Mr.  Phelps. 

Mr.  Chi^cf  Justice  Bean  delivered  th%  opinion. 
Section  2159,  B.  &  C.  Comp.,  reads: 

**If  any  person  attempts  to  commit  any  crime,  and  in 
such  attempt  does  any  act  towards  the  commission  of  such 
crime,  but  fails  or  is  prevented  or  intercepted  in  the  per- 
petration thereof,  such  person,  when  no  other  provision  is 
made  by  law  for  the  punishment  of  such  attempt,  upon 
conviction  thereof  shall  be  punished,"  etc. 

Under  the  provisions  of  this  section  the  defendant,  Tay- 
lor, was  indicted,  and  convicted  of  an  attempt  to  commit 
the  crime  of  arson.  The  proof  was  that  he  entertained  an 
enmity  against  John  Bannister,  one  of  his  neighbors,  be- 
cause of  some  testimony  Bannister  had  given  in  a  divorce 
suit.  Apparently  for  revenge,  he  desired  to  burn  and  de- 
stroy Bannister's  barn  and  wheat.  He  solicited  one  Mc- 
Grath  to  do  the  burning,  who,  in  turn,  asked  one  Palmer 
tp  assist  in  the  commission  of  the  crime.  Palmer  informed 
his  employer,  a  friend  of  Bannister's,  of  the  proposed  plan, 
and  was  advised  to  allow  the  matter  to  proceed,  and  that 
arrangements  would  be  made  to  apprehend  the  parties. 


Jan.  1906.]  State  v.  Taylor.  457 

After  some  preliminary  negotiations  Taylor,  McGrath  and 
Palmer  met  in  the  back  room  of  a  saloon  in  Athena  on 
July  30,  1904,  and  Taylor  there  engaged  McGrath  and 
Palmer  to  burn  Bannister's  barn  and  wheat,  agreeing  to 
pay  them  $100  for  so  doing,  and  at  the  same  time  showed 
them  how  to  start  a  slow  burning  fire  with  a  pair  of  over- 
alls, saying  he  had  tested  it.  After  the  conference  at  the 
saloon  the  parties  separated,  agreeing  to  meet  that  night 
about  12  o'clock  at  Taylor's  place,  from  which  McGrath 
and  Palmer  were  to  start  to  Bannister's  for  the  purpose  of 
<;onsummating  the  crime.  Palmer  advised  Bannister's 
friends  of  what  was  about  to  take  place,  and  they  made 
arrangements  to  lie  in  wait  and  intercept  the  parties.  At 
the  appointed  time  Palmer  went  to  Taylor's  place  and  there 
met  Taylor  and  McGrath,  who  were  waiting  for  him.  Tay- 
lor had  his  own  horse  saddled  and  ready  for  McGrath  to 
ride.  He  produced  a  pair  of  overalls,  and  after  again 
showing  McGrath  and  Palmer  how  to  use  them  in  start- 
ing a  fire  tied  them  on  the  saddle  of  his  horse  and  paid 
McGrath  1100  in  money.  McGrath  and  Palmer  then 
started  towards  Bannister's  with  the  purpose,  so  Taylor 
supposed  and  believed,  of  setting  the  fire,  with  a  parting 
expression  from  him  of  "Good  luck  go  with  you."  Taylor 
*4aid  awake  two  hours  to  see  the  fire,"  but  as  McGrath  and 
Palmer  were  going  towards  Bannister's  they  noticed  fresh 
tracks  in  the  road,  and  when  they  approached  within  20 
feet  of  the  barn  observed  two  or  three  buggies  in  the  barn- 
yard, which  frightened  McGrath,  who  was  afraid  to  go  on 
with  the  enterprise  for  fear  they  were  being  watched,  and 
so  it  was  abandoned.  McGrath  and  Palmer  were  both 
witnesses  for  the  prosecution.  Palmer  testified  that  he 
never  had  any  intention  of  committing  the  crime,  and 
McGrath  said  that  he  did  not  intend  to  set  the  fire,  but 
that  the  arrangement  was  that  it  should  be  started  by 
Palmer.    Upon  these  facts  the  question  for  decision  is 


458  State  v.  Taylor.  [47  Or. 

whether  the  defendant  was  legally-  convicted  of  an  attempt 
to  commit  the  crime  of  arson. 

The  question  as  to  what  constitutes  an  attempt  to  com- 
mit a  crime  is  often  intricate  and  difficult  to  determine^ 
and  no  general  rule  has  been  or  can  be  laid  down  which 
can  be.  applied  as  a  test  in  all  cases.  Each  case  must  be 
determined  upon  its  own  facts,  in  the  light  of  certain  prin- 
ciples which  appear  to  be  well  settled.  An  attempt  is 
defined  as  an  '^intent  to  do  a  particular  criminal  thing, 
with  an  act  toward  it  falling  short  of  the  thing  intended": 
1  Bishop,  New  Grim.  Law,  §  728.  Or,  according  to  Whar- 
ton: "An  attempt  is  an  intended  apparent  unfinished 
crime":  1  Wharton,  Grim.  Law  (9  ed.),  §  173.  Another 
author  says:  "An  attempt  to  commit  a  crime  is  an  act 
done  in  part  execution  of  a  criminal  design,  amounting 
to  more  than  mere  preparation,  but  falling  short  of  actual 
consummation,  and  possessing,  except  for  failure  to  con« 
summate,  all  the  elements  of  the  substantive  crime:"  3 
Am.  &  Eng.  Enc.  Law  (3  ed.),  250.  An  indictable  attempts 
therefore,  consists  of  two  important  elements:  First,  an 
intent  to  commit  the  crime ;  and,  second,  a  direct,  inef- 
fectual act  done  towards  its  commission.  To  constitute  an 
attempt,  there  must  be  something  more  than  a  mere  inten- 
tion to  commit  the  offense,  and  preparation  for  its  com- 
mission is  not  sufficient.  Some  overt  act  must  be  done 
toward  its  commission,  but  which  falls  short  of  the  com- 
pleted crime.  It  need  not  be  the  last  proximate  act  before 
the  consummation  of  the  offense,  but  it  must  be  some  act 
directed  toward  the  commission  of  the  offense  after  the 
preparations  are  made.  It  is  often  difficult  to  determine 
the  difference  between  preparation  for  the  commission  of  a 
crime  and  an  act  towards  its  commission.  There  is  a  class 
of  acts  which  may  be  done  in  pursuance  of  an  intention 
to  commit  a  crime,  but  not,  in  legal  sense,  a  part  of  it,  and 
do  not  constitute  an  indictable  attempt,  such  as  the  pur- 


Jan.  1906.1  State  v.  Taylor.  459 

chase  of  a  gun  with  the  design  of  committing  murder,  or 
the  procuring  of  poison  with  the  same  intent.  These  and 
like  acts  are  considered  in  the  nature  of  mere  preliminary 
preparation,  and  not  as  acts  toward  the  consummation  of 
the  crime.  It  is  upon  this  principle  that  most  of  the  cases 
cited  by  the  defendant  rest,  although  some  of  them  seem 
to  have  carried  the  doctrine  to  the  utmost  limit:  Patrick 
V.  People,  132  111.  529  (24  N.  E.  619);  McDade  v.  People,  29 
Mich.  50;  People  v.  Youngs,  122  Mich.  292  (81  N.  W.  114, 
47  L.  R.  A.  108);  State  v.  Lung,  21  Nev.  209  (28  Pac.  235, 
37  Am.  St.  Rep.  505);  Stabler  v.  Commonwealth,  95  Pa.  318 
(40  Am.  Rep.  653);  Hicks  v.  Commonwealth,  86  Va.  223 
(9  S.  E.  1024,  19  Am.  St.  Rep.  891);  State  v.  Bailer,  26 
W.  Va.  90  (53  Am.  Rep.  66). 

In  the  case  at*  bar  we  have  something  more  than  mere 
intention  or  preparation,  so  far  as  the  defendant  is  con- 
cerned. His  part  in  the  transaction  was  fully  consum- 
mated when  he  employed  McGrath  and  Palmer  to  commit 
the  offense,  gave  them  the  materials  with  which  to  do  it^ 
showed  them  how  to  start  a  slow  burning  fire,  paid  them  a 
compensation  for  their  services,  furnished  a  horse  for  one 
of  them  to  ride,  and  started  them  on  their  way.  He  had 
thus  done  all  that  he  was  expected  to  do,  and  his  feloni- 
ous design  and  action  was  then  just  as  complete  as  if  the 
crime  had  been  consummated,  and  the  punishment  of 
such  an  offender  is  just  as  essential  to  the  safety  of  society. 
The  failure  to  commit  the  crime  was  not  due  to  any  act 
of  his,  but  to  the  insufficiency  of  the  agencies  employed 
for  carrying  out  his  criminal  design.  One  may  commit 
a  crime  by  his  own  hand  or  that  of  another,  employed, 
aided  or  encouraged  by  him.  If  he  endeavors  or  attempts 
to  commit  it  himself,  and  is  interrupted  or  frustrated,  he 
would  clearly  be  guilty  of  an  indictable  attempt,  and,  if 
he  uses  another  person  to  accomplish  the  same  purpose, 
and  the  other  fails  to  carry  out  his  design,  whether  pur- 


460  State  v,  Taylor.  [47  Or. 

posely  or  otherwise,  the  result  is  the  same:  State  v.  Boivers. 
35  S.  C.  262  (14  S.  E.  488,  15  L.  R.  A.  199,  28  Am.  St.  Rep. 
847).  The  statute  under  which  the  defendant  was  indicted 
was  probably  taken  from  that  of  the  State  of  New  York. 
It  had  received  a  judicial  construction  in  that  State  long 
before  it  was  enacted  here.  In  People  v.  Bush^  4  Hill,  133, 
decided  in  1843,  the  defendant  was  indicted  for  an  attempt 
to  commit  the  crime  of  arson.  The  proof  was  that  he  re- 
quested one  Kinney  to  set  fire  to  a  barn,  gave  him  a  match 
for  that  purpose,  and  promised  to  reward  him.  The  court 
held  the  conviction  legal,  although  the  defendant  never  in- 
tended to  be  present  at  the  commission  of  the  offense  and 
Kinney  never  intended  to  commit  it,  Mr.  Justice  Cowen 
saying:  **The  act  imputed  to  Bush  was  no  doubt  an  attempt 
to  commit  an  offense.  It  is  admitted  that  he  endeavored 
to  make  himself  an  accessory  before  the  fact;  and  to  be- 
<5ome  an  accessory  is,  in  itself,  an  offense.  A  mere  solici- 
tation to  commit  a  felony  is  an  offense,  whether  it  be  actu- 
ally committed  or  not.  This  was  held  in  the  King  v.  Hig- 
£/in8,  2  East,  5.  In  the  case  before  us  there  was  more. 
The  solicitation  was  followed  by  furnishing  the  instru- 
ment of  mischief.  The  question  of  principal  and  acces- 
sory does  not  arise,  as  it  would  have  done  provided  the 
<jrime  had  actually  been  committed.  Had  it  been  com- 
mitted, the  attempt  would  have  been  merged  in  an  actual 
felony — a  crime  of  another  species.  There  would  have 
been  a  principal  arson  by  Kinney  and  an  accessorial 
offense  by  Bush.  The  attempt  of  the  latter  was  to  have 
both  crimes  committed,  and,  the  question  of  principal 
and  accessory  not  being  in  the  case,  I  see  nothing  against 
considering  the  matter  in  the  light  of  the  ordinary  rule 
that  what  a  man  does  by  another  he  does  by  himself;  in 
other  words,  the  course  taken  to  commit  the  arson  by  the 
hand  of  Kinney  was  the  same  thing,  in  legal  effect,  as  if 


Jan.  1906.]  State  v,  Taylor.  461 

Bush  had  intended  to  set  the  fire  personally,  and  had 
taken  steps  preparatory  to  that  end.** 

The  same  principle  was  again  applied  in  McDermoit  v. 
People,  5  Parker,  Cr.  R.  102.  In  that  case  the  defendant 
solicited  another  to  commit  the  crime  of  arson,  offering 
in  consideration  thereof  to  deed  and  assign  over  to  him 
certain  property,  and  said  he  had  camphene  and  other 
combustibles  in  his  room.  The  court  held  the  defendant 
properly  convicted  of  an  attempt  to  commit  arson,  say- 
ing: **The  two  important  and  essential  facts  to  be  estab« 
lished  to  convict  a  person  of  an  offense  are,  first,  an  intent 
to  commit  the  offense;  and,  second,  some  overt  act  con- 
sequent upon  that  intent  towards  its  commission.  So  long 
as  the  act  rests  in  bare  intention,  it  is  not  punishable. 
^Cogitationis  pa>nam  nemo  patitur.'  It  is  only  when  the 
thought  manifests  itself  by  an  outward  act  in  or  toward 
the  commission  of  an  offense  that  the  law  intervenes  to 
punish.  As  we  cannot  look  into  the  mind  and  see  the 
intent,  it  must,  of  necessity,  be  inferred  from  the  nature 
of  the  act  done,  and,  if  that  be  unlaw^ful,  a  wicked  intent^ 
will  be  presumed.  These  are  fundamental  legal  princi- 
ples. Now,  applied  to  the  facts  of  this  case,  what  do  we 
find?  We  find  that  the  defendant  intended  to  commit  the 
crime  of  arson.  Indeed,  he  had  committed  the  offense 
'already,  in  his  heart.*  What  were  the  overt  acts  toward 
the  commisson?  He  had  prepared  camphene  and  other 
combustibles,  and  had  them  in  his  room,  and  then  he 
went  a  step  further  and  solicited  McDonnell  to  use  those 
combustibles  to  burn  the  building,  promising  him,  if  he 
would  do  so,  to  *give  him  the  deeds  of  the  place,  and  assign 
to  him  his  right  in  the  same.'  We  have,  then,  the  fixed 
design  of  the  defendant  to  burn  this  barn,  and  overt  acts^ 
toward  the  commission  of  the  offense,  and  a  failure  in  the 
perpetration  of  it.  The  offense,  then,  is  fully  made  out,, 
for  the  intent  to  do  the  wrongful  act,  coupled  with  the- 


462  State  v.  Taylor.  [46  Or. 

overt  acts  toward  its  commission,  constituted  the  attempt 
spoken  of  by  the  statute."  These  cases  and  the  doctrine 
upon  which  they  are  grounded  have  been  recently  reaf- 
firmed in  People  v.Gardner,  144  N.  Y.  119  (38  N.  E.  1003, 
28  L.  R.  A.  699,  43  Am.  St.  Rep.  741);  and  People  v.  Sul- 
livan, 173  N.  Y.  122  (65  N.  E.  989,  63  L.  R.  A.  353,  93  Am. 
St.  Rep.  582). 

Missouri  has  a  similar  statute.  In  State  v.  Hayes,  78 
Mo.  307,  the  defendant  solicited  one  McMahan  to  set  fire 
to  a  building,  furnished  him  a  can  of  oil  for  the  purpose, 
and  gave  him  instructions  for  the  burning.  The  court 
held  that  he  was  properly  convicted  of  an  attempt,  although 
McMahan  was  acting  under  the  advice  of  the  police,  and 
did  not  himself  intend  to  commit  arson.  The  court  said: 
"The  evil  intent  which  imparts  to  the  act  its  criminality 
must  exist  in  the  mind  of  the  procurer.  And  how  the  fact 
that  the  party  solicited  does  not  acquiesce  or  share  in  the 
wicked  intent,  exonerates  the  solicitor,  baffles  reason." 

The  State  of  Georgia  has  a  statute  likewise  taken  from 
New  York.  In  Griffin  v.  State,  26  Ga.  493,  the  New  York 
cases  are  approved.  The  defendant  intended  to  commit 
the  crime  of  larceny  by  abstracting  goods  from  a  store- 
house through  the  agency  of  one  Jones.  He  took  an  im- 
pression of  the  key  to  the  door  of  the  building,  and  made 
a  key  for  the  purpose  of  opening  it,  which  he  sent  in  a  box 
of  fruit  to  Jones,  who  feigningly  agreed  to  become  a  par- 
ticipant in  the  accomplishment  of  the  contemplated  crime. 
It  was  held  that  the  defendant  was  guilty  of  an  attempt  to 
commit  the  crime,  and  that  Jones*  intent  had  nothing  to 
do  with  his  offense. 

The  statute  of  Massachusetts  provides  that  "whoever  at- 
tempts to  commit  an  offense  prohibited  by  law  and  in  such 
attempt  does  any  act  toward  the  commission  of  such  of- 
fense,'* shall  be  punished  as  therein  provided.  In  Com" 
monwealth  v.  Peaslee,  177  Mass.  267  (59  N.  E.  55),  the  evi- 


Jan.  1906.]  State  v,  Taylor.  493 

<1ence  was  that  the  defendant  had  arranged  combustibles 
in  a  building  in  such  a  way  that  they  were  ready  to  be 
lighted,  and,  if  lighted,  would  have  set  fire  to  the  building 
and  contents.  The  plan,  however,  required  a  candle  which 
was  standing  on  a  shelf  about  six  feet  away  from  the  com- 
bustibles to  be  placed  on  a  piece  of  wood  in  a  pan  of  tur- 
pentine and  lighted.  The  defendant  offered  to  pay  a  young 
man  in  his  employment  if  he  would  go  to  the  building, 
seemingly  some  miles  from  the  place  of  the  dialogue,  and 
carry  out  the  plan.  This  was  refused.  Later  the  defend- 
ant and  the  young  man  drove  toward  the  building,  but, 
when  within  about  a  quarter  of  a  mile  of  the  place,  defend- 
ant said  he  had  changed  his  mind  and  drove  away.  This 
was  the  only  act  he  ever  did  toward  accomplishing  what 
he  had  in  contemplation,  and  yet  the  court  held  that  it  was 
sufficient  to  convict  him  of  an  attempt  to  burn  the  build- 
ing and  its  contents  with  the  intent  to  injure  the  insurers 
of  the  same. 

We  conclude,  therefore,  that  the  conviction  of  the  de- 
fendant was  right,  and  the  judgment  will  be  affirmed. 

Affirmed. 


Decided  80  January,  1906. 

On  Motion  for  Rehearing. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

The  doctrine  of  State  v.Hull,  33  Or.  56  (54  Pac.  159,  72 
Am.  St.  Rep.  694),  and  similar  cases,  has  no  application 
to  the  facts  of  this  case.  That  was  an  indictment  for  lar- 
ceny. The  representative  of  the  owner  of  the  property 
alleged  to  have  been  stolen  golicited  the  defendants  to 
commit  the  offense.  The  property  was  taken  by  them  by 
the  express  direction  of  the  owner  and  with  his  assent. 
There  was,  therefore,  no  trespass  in  the  taking  and  no 
crime  committed.  Here,  however,  the  defendant,  Taylor, 
planned  the  alleged   arson  and   solicited   McGrath  and 


464  Seed  v,  Jennings.  [47  Or. 

Palmer  to  assist  him  in  its  commission.  Palmer  informed 
his  employer  of  the  proposed  plan  and  was  advised  to  join 
Taylor  and  McGrath  in  appearance.  This  did  not  excuse 
Taylor  for  what  he  did  personally:  1  Bishop  Crim.  Law 
(5  ed.),  §  262.    The  petition  is  denied. 

Affirmed:  Rehearing  Denied. 
Mr.  Justice  Hailey  took  no  part  in  the  consideration 
of  this  case. 


Argued  18  October,  decided  -I  December,  1905. 
SEED  r.  JENNINGS. 

8.3  Pac.  872. 

Evidence  Considered. 

1.  The  evidence  shows  that  the  deed  under  consideration  here  was  intended 
by  the  father  as  an  absolute  conveyance  to  his  minor  son,  and  that  it  was  not 
conveyed  or  accepted  in  trust. 

Deed— Advancement— Parent  and  Child. 

2.  Property  voluntarily  conveyed  by  a  parent  to  a  child,  on  a  purported  con- 
sideration of  love  and  affection,  is  presumptively  an  advancement,  and  the  deed 
conveys  the  title. 

Conveyance  by  Infant  — Effect  of  Disaffirmance.* 

3.  A  deed  by  a  minor  is  subject  to  disaffirmance  upon  attaining^ majority, and 
if  disaffirmed,  such  deed  never  becomes  effective  to  convey  the  title. 

Fraudulent  Conveyance— Who  Are  Creditors. 

4.  One  having  a  right  of  action  for  damages  resulting  fjrom  a  tort  is  a  creditor 
of  the  wrongdoer,  within  the  meaning  of  Section  5508,  B.  &  C.  Comp.,  declaring 
void  as  to  creditors  all  conveyances  made  to  hinder,  delay  or  defktiud  creditors  of 
their  lawful  suits,  damages  or  demands. 

Right  of  Suit  to  Set  Aside  Fraudulent  Conveyance. 

5.  To  enable  a  creditor  to  maintain  a  suit  to  set  aside  a  conveyance  by  his 
debtor  as  fraudulent,  he  must  show  an  unsatisfied  Judgment  or  an  attachment 
upon  a  cause  of  action  existing  at  the  time  of  the  conveyance,  or  on  a  cause  of 
action  arising  subsequent  thereto,  in  which  latter  case  the  conveyance  must  be 
shown  to  have  been  made  with  the  express  intention  of  defrauding  subsequent 
creditors. 

Presumption  of  Fraud  in  Voluntary  Conveyance. 

6.  Voluntary  conveyances  are  constructively  fk-audulent  and  void  as  to  exists 
Ing  creditors  of  the  grantor,  but  are  presumed  valid  as  against  subsequent  cred- 
itors, unless  impeached  for  actual  fraud. 


♦  Note.— See  monographic  note  in  18  Am.  St.  Rep.  57S-72I,  on  Contracts  of 
Infants.  Reporter. 


Dec.  1905.]  Seed  v.  Jennings.  465 

EviDitNCE  OF  Cause  op  Action  in  a  Suit  to  Set  Aside  Conveyance  as 
Constructively  Fraudulent. 

7.  The  existence  of  a  caase  of  action  by  a  creditor  against  his  debtor  at  the 
tlraeof  a  voluntary  conveyance  of  property  by  the  latter  must  appear  on  the 
face  of  the  n*cord  in  the  action  In  which  the  creditor  recovers  Judgment,  in  order 
to  enable  Ruch  creditor  to  maintain  a  suit  to  set  aside  the  conveyance  as  con- 
structively fraudulent  against  existing  creditors. 

Evidence  of  Fraudulent  Intent  by  Grantor. 

8.  Evidence  of  improper  conduct  on  the  part  of  the  grantor  In  a  voluntary 
conveyance  to  plaintiflT,  committed,  subsequent  to  such  conveyance  with  the 
wife  of  defendant,  is  not  sufficient  to  show  that  the  conveyance  was  made  for  the 
purpose  of  hindering,  delaying  or  defrauding  defendant  In  the  collection  of  any 
Judgment  which  he  might  recover  against  the  grantor  on  account  of  such  con- 
duct, in  the  absence  of  evidence  that  the  grantor  anticipated  an  action  by  defend, 
ant  for  alienation  of  his  wife's  affections,  or  that  he  had  any  reason  for  putting 
his  property  out  of  his  hands  on  that  account. 

From  Multnomah.:    Alfred  F.  Sears,  Jr.,  Judge, 

Statement  by  Mr.  Justice  Bean. 

This  is  a  suit  by  John  G.  Seed  against  O.  O.  Jennings 
and  others  to  enjoin  the  sale  of  real  property  in  Multno- 
mah County,  on  an  execution  issued  on  a  judgment  recov- 
ered by  the  defendant  Jennings  against  John  S.  Seed,  the 
father  of  the  plaintiff.  On  January  4,  1901,  John  S.  Seed 
was  the  owner  of  the  property  in  controversy,  and  on  that 
day  he  and  his  wife  conveyed  it  to  the  plaintiff,  their  son, 
then  about  18- years  of  age,  by  warranty  deed  for  the  ex- 
pressed consideration  of  "love  and  affection,  and  one  dol- 
lar," and  this  deed  was  duly  recorded.  Thereafter,  and  on 
or  about  September  1st,  the  plaintiff,  who  was  about  to  go 
to  Chicago  for  a  short  time,  made  to  his  father  a  reconvey- 
ance of  the  property  with  the  knowledge,  expressed  how- 
ever, of  all  the  parties  that  the  deed  could  be  disaffirmed 
by  him  on  becoming  of  age.  This  deed  was  not  placed  on 
record.  Seed  remained  in  possession  of  the  property  with 
his  wife  and  son  until  about  the  year  1902,  when  he  and 
his  wife  separated,  since  which  time  the  property  has  been 
in  the  possession  of  the  plaintiff.  On  July  10,  1904,  the 
plaintiff  became  of  age  and  immediately  notified  his  father 
that  he  disaffirmed  and  repudiated  the  deed  previously 

47  Ob. 30 


466  Seed  v.  Jennings.  [47  Or. 

made  by  him  and  demanded  to  have  it  canceled.  On  June 
11,  1904,  the  defendant  Jennings  commenced  an  action  at 
law  against  John  S.  Seed  to  recover  damages  for  alienating 
the  affections  of  his  wife,  which  it  was  alleged  occurred 
within  one  year  from  the  filing  of  the  complaint.  Seed 
made  default,  and  such  proceedings  were  thereafter  had 
in  the  action  that  on  September  12, 1904,  Jennings  recov- 
ered a  judgment  against  him  for  $5,000,  and  his  costs  and 
disbursements.  An  execution  was  issued  on  the  judgment 
and  the  property  in  question  seized  by  the  sheriff,  and  ad- 
vertised for  sale,  when  this  suit  was  commenced  by  the 
plaintiff  to  enjoin  the  sale  on  the  ground  that  the  pro])- 
erty  belonged  to  him,  and  not  to  his  father.  The  defenses 
to  the  suit  are,  in  substance:  (1)  That  the  transfer  of  the 
property  by  John  S.  Seed  to  the  plaintiff  was  made  in  trust 
for  the  grantor,  and  the  trust  was  subsequently  executed 
by  a  conveyance  thereof  by  the  plaintiff;  (2)  that  at  the 
time  of  the  transfer,  Seed  was  liable  in  damages  to  Jennings 
for  alienating  the  affections  of  his  wife,  and  such  transfer, 
being  voluntary,  and  without  consideration,  was  void  as 
to  him.  The  defendants  had  decree  in  the  court  below, 
and  plaintiff  appeals.  Reversed. 

For  appellant  there  was  a  brief  over  the  names  of  Julius 
Cieaar  Moreland  and  W.  H,  Stivers^  with  an  oral  argument 
by  Mr,  Moreland, 

For  respondents  Jennings  and  Word  there  was  a  brief 
over  the  names  of  Bronaugh  &  Bronaugh,  with  an  oral  argu- 
ment by  Mr,  Jerry  England  Bronaugh. 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

1.  There  is  no  evidence  to  support  the  claim  that  the 
deed  from  John  S.  Seed  to  the  plaintiff  was  made  in  trust 
for  the  grantor.  W.  A.  Cleland,  who  drew  the  deed,  testi- 
fied that  Seed  said  to  him  at  the  time  that  his  arrangement 
with  his  then  partner  was  not  satisfactory,  and  that  he  was 


Dec.  1905.]  Skb»  «.  Jennings.  467 

going  to  close  out  bis  business  and  leave  tbe  country,  and 
desired  to  deed  tbe  property  in  question  to  bis  son  and 
another  tract  to  bis  wife,  '*so  tbey  would  be  taken- care  of.'' 
Mrs.  Seed  says  tbat  prior  to  tbe  making  of  tbe  deed  Seed 
had  often  talked  of  going  away,  and,  as  she  was  not  provided 
for,  she  told  him  tbat  she  wanted  him  to  give  her  one  of  the 
houses,  and  he  said  that  be  would  do  so,  and  would  deed 
the  other  to  tbe  plaintiff  "for  his  education."  This  is  all 
the  testimony  in  tbe  record  as  to  tbe  purpose  for  which  tbe 
deed  was  made,  and  clearly  shows  that  it  was  intended  at 
the  time  as  an  absolute  conveyance  of  the  land  by  tbe  father 
to  bis  son. 

2.  A  voluntary  conveyance  of  property  by  a  parent  to  a 
child,  expressed  in  the  deed, as  in  this  case,  to  be  in  consid- 
eration of  love  and  affection,  is  presumed  to  be  an  advance- 
ment (1  Am.  &  Eng.  Enc.  Law,  2  ed.  765;  Lott  v.  Kaiser,  61 
Tex.  665);  and  this  presumption  applies  here  as  there  is 
no  evidence  to  rebut  it.  Tbe  title  of  the  property,  there- 
fore, passed  from  John  S.  Seed  to  the  plaintiff. 
•  3.  As  the  attempted  reconveyance  thereof  by  tbe  plain- 
tiff, made  in  September,  1901,  was  promptly  disaflBrmed  by 
him  on  coming  of  age,  the  title  is  now  in  him :  Tucker  v. 
Moreland,  35  U.  S.  (10  Pet.)  58,  (9  L.  Ed.  345);  Craig  v.  Van 
Bebber.lOO  Mo. 584 (13  S.\V.906,18  Am.  St. Rep.  662, and 
note);  Scranton  v.  Stewart,o2  Ind. 68  ;  Long  v.  WilliamSy  74 
Ind.  115 ;  Green  v.  Green,  69  N.  Y.  553  (25  Am.  Rep.  233). 

4  But  it  is  urged  that,  in  any  event,  Jennings  bad  a 
cause  of  action  against  Seed  at  tbe  time  tbe  deed  was  made 
for  alienating  tbe  affections  of  bis  wife,  and  was  therefore 
in  legal  contemplation  a  creditor  of  Seed,  and  as  to  him 
tbe  deed  is  void,  because  made  voluntarily,  and  without 
consideration.  Whatever  the  rule  may  be  in  other  juris- 
dictions, it  is  tbe  doctrine  here  that  one  having  a  right  of 
action  for  damages  against  another  for  tort  is  a  creditor  of 
tbe  wrongdoer  within  tbe  meaning  of  Sections  5508  et  seq.. 


468  Seed  v.  Jennings.  [47  Or. 

B.  &  C.  Comp.,  declaring  conveyances  of  property  made 
with  intent  to  hinder,  delay  and  defraud  creditors,  void 
as  to  such  creditors :  Barrett  v.  Barrett^  5  Or.  411;  Philbrick 
V.  O'Conner,  15  Or.  15  (13  Pac.  612,  3  Am.  St.  Rep.  139); 
Coolidge  v.  Heneky,  11  Or.  327  (8  Pac.  281);  Hunsingerw 
Hofer,  110  Ind.  390  (14  N.  E.  463);  Farnsworth  v.  Bell,  5 
Sneed,  532,  footnote. 

5.  To  enable  a  creditor  herein  to  maintain  a  suit  to  set 
aside  a  conveyance  by  the  debtor  as  fraudulent  and  void, 
he  must  show  an  unsatisfied  judgment  or  an  attachment 
upon  a  cause  of  action  existing  at  the  time  of  the  convey- 
ance {Dawson  v.  Sims,  14  Or.  561,  13  Pac.  506;  Clark  v. 
Anthony,  31  Ark.  546);  or  on  a  cause  of  action  arising  sub- 
sequent thereto,  and  that  in  the  latter  event  the  conveyance 
was  made  with  the  express  intention  of  defrauding  subse- 
quent creditors :  Crawfordw, Beard, 12  Or.  447  (8  Pac.  537); 
Bennett  v.  Minott,  28  Or.  339  (39  Pac.  997,  44  Pac.  288); 
Morton  v.  Denham,  39  Or.  227  (64  Pac.  384.) 

6.  A  voluntary  conveyance  of  property  is  constructively 
void  as  to  existing  creditors  (Elfelt  v.  Hinch,  5  Or.  255; 
Davis  V.  Davis,  20  Or.  78,  25  Pac.  140;  Flynn  v.  Baisley, 
35  Or.  268,  57  Pac.  908,  45  L.  R.  A.  645,  76  Am.  St.  Rep. 
495);  but  valid  as  to  subsequent  ones,  unless  impeached 
for  actual  fraud:  14  Am.  &  Eng.  Enc.  Law  (2  ed.),  309; 
Hagerman  v.  Buchanan,  45  N.  J*.  Eq.  292  (17  Atl.  946,  14 
Am.  St.  Rep.  732). 

7.  Now,  in  this  case  the  cause  of  action  upon  which  Jen- 
nings recovered  judgment  against  Seed,  as  shown  by  the 
record  in  such  action,  did  not  exist  at  the  time  of  the  con- 
veyance by  Seed  to  his  son,  nor  for  some  time  thereafter. 
The  record  consists  alone  of  the  complaint,  the  order  of 
default  and  the  judgment.  The  complaint  was  filed  July 
11, 1904,  and  charges  an  overt  act,  committed  on  July  8th, 
previous,  and  that  prior  to  the  filing  of  the  complaint,  and 
''particularly  within  the  last  year,"  Seed  had  insinuated 


Dec.  1905.]  Seed  i\  Jennings.  469 

himself  into  the  favor  and  good  graces  of  Jennings*  wife, 
alienating  her  affections ;  but  there  is  no  charge  that  this 
wrongdoing  commenced  prior  to  the  date  of  the  convey- 
ance in  question.  To  avoid  a  voluntary  deed  because 
fraudulent  as  to  existing  creditors,  the  cause  of  action  must 
exist  at  the  time  the  conveyance  is  made,  and  this  must 
appear  from  the  record  in  theaction  in  which  the  judgment 
was  recovered  (The  Holladay  Case^G. C,  27  Fed.  830;  Good- 
now  V.  Smith,  97  Mass.  69),  so  that  the  evidence  does  not 
disclose  that  Jennings  is  entitled  to  have  the  deed  set  aside 
because  the  judgment  recovered  by  hira  against  Seed  was 
on  a  cause  of  action  existing  at  the  time  the  conveyance 
was  made. 

8.  Nor  is  there  sufficient  evidence  to  show  that  the  deed 
was  made  for  the  purpose  of  hindering,  delaying,  or  de- 
frauding Jennings  in  the  collection  of  any  judgment  he 
might  recover  against  Seed  on  account  of  his  subsequent 
conduct  or  to  defraud  any  of  Seed's  creditors.  There  is 
no  evidence  that  Seed  was  in  debt  in  any  sum  at  the  time, 
nor  that  he  has  since  become  indebted  or  liable  in  any 
amount  except  on  the  judgment  J-ennings  recovered  in 
September,  1904.  There  is  no  testimony  in  the  record 
showing  or  tending  to  show  any  improper  conduct  between 
Seed  and  Mrs.  Jennings  except  the  allegations  of  the  com- 
plaint in  the  action  brought  by  Jennings,  which  was  taken 
as  confessed  and  the  testimony  of  plaintiff  elicited  on  cross- 
examination,  to  the  effect  that  a  few  days  before  the  deed 
was  made  he  and  his  mother  saw  Seed  and  Mrs.  Jennings 
come  out  of  a  down-town  building  at  about  11  o'clock  at 
night,  and  that  a  personal  encounter  ensued  between  the 
two  women  and  that  he  (witness)  had  seen  his  father  and 
Mrs.  Jennings  together  at  the  theatre,  and  out  riding  sev- 
eral times  prior  to  that  date.  This  is  perhaps  sufficient  to 
show  improper  conduct  by  Seed  and  Mrs.  Jennings,  but 
there  is  no  evidence  that  Seed  anticipated  an  action  by 


470  .  State  v.  Browning.  [47  Or. 

Jennings  on  account  thereof,  or  that  he  had  any  reason 
for  putting  his  property  out  of  his  hands  on  that  account. 
It  follows  that  upon  the  record  before  us  the  decree  of 
the  court  below  must  be  reversed,  and  one  entered  herein 
favor  of  plaintiff.  Reversed. 


Argaed  12  October,  decided  80  October,  reheariDg^  denied  4  December,  1905. 

BTATB  V.  BBOWNINO. 

82  Pac.  955. 

Embezzlement  as  a  Form  of  Larceny. 

1.  Embezzlement,  as  defined  by  Section  1806  of  B.  A  C.  Comp.,  is  a  variety  of 
larceny,  tbottg^h  not  Involving^  the  element  of  trespass,  a  breach  of  confidence 
being  substituted  therefor. 

Information  for  Embezzlement— Allegation  of  Takino. 

2.  An  information  Intended  to  present  a  charge  of  embezzlement  under  Sec- 
tion 1806,  B.  &  C.  Ck>mp.,  need  not  show  that  the  defendant  unlawftiUy  seized  and 
carried  away  the  property  of  the  employer,  though  embezzlement  is  classed  in 
this  State  as  a  form  of  larceny. 

Jurisdiction  of  Justice's  Court  Over  Embezzlement. 

8.  Under  Section  1798of  B.  A  C.  Comp.,  a  Justice's  court,  or  any  mnnldpAl  court, 
having  the  authority  of  a  juatlce  of  the  peace,  as,  the  Municipal  Court  of  the  City 
of  Portland,  has  Jurisdiction  over  any  form  of  larceny,  where  the  value  of  the 
property  taken  does  not  exceed  thirty-five  dollars. 

"From  Multhomah:   Arthur  L.  Frazer,  Judge. 

A.  J.  Browning  appeals  from  a  conviction  of  larceny  by 
embezzlement.  The  case  was  submitted  on  briefs  under 
the  proviso  of  Rule  16;  35  Or.  587,  600.         Affirmed. 

For  appellant  there  was  a  brief  over  the  name  of  Mc- 
Cants  Stewart. 

For  the  State  there  was  a  brief  over  the  names  of  A.  if. 
Crawford,  Attorney  General,  John  Jlfannin^,  District  Attor- 
ney, and  H.  B.  Adams. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

The  defendant,  A.  J.  Browning,  was  charged  in  the  Mu- 
nicipal Court  for  the  City  of  Portland  with  the  crime  of 
embezzling  $20,  and,  having  been  convicted  thereof  and 
sentenced  to  imprisonment  in  the  county  jail,  he  appealed 


Oct.  1905.]  State  v.  Browning.  471 

from  such  judgment  to  the  circuit  court,  where  the  cause 
was  tried  anew,  resulting  in  a  like  judgment,  from  which 
he  appeals  to  this  court. 

His  counsel  contends  that  the  court  in  which  the  action 
was  instituted  did  not  have  jurisdiction  of  the  subject- 
matter,  and,  this  being  so,  that  the  circuit  court  erred  in 
not  reversing  the  judgment  of  the  municipal  court  and 
discharging  the  defendant.  The  authority  by  which' the 
police  court  assumed  to  act  in  the  matter  is  to  be  found, 
ii  at  all,  in  the  following  provisions  of  the  charter  of  the 
City  of  Portland.  The  Municipal  Court  for  the  City  of 
Portland  has  therein  the  jurisdiction  and  authority  of  a 
justice  of  the  peace:  Sp.  Laws,  1903,  pp.  3, 131,  §  329.  An 
examination  of  the  statute  in  respect  to  the  authority  of 
the  latter  court  discloses  that  a  justice's  court  has  juris- 
diction of  the  crime  of  larceny,  committed  or  triable  in 
the  county  in  which  such  court  is  held,  where  the  punish- 
ment therefor  may  be  imprisonment  in  the  county  jail  or 
by  fine:  B.  &  C.  Comp.  §  2194;  Laws  1903,  p.  295.  Where 
the  value  of  the  property  stolen  does  not  exceed  the  sum 
of  $35,  a  justice's  court  has  jurisdiction  of  the  crime,  and 
upon  conviction  of  the  person  charged  therewith,  may 
sentence  him  to  imprisonment  in  the  county  jail  for  not 
less  than  one  month  nor  more  than  one  year,  or  may  im- 
pose a  fine  of  not  less  than  $25,  nor  more  than  $100:  B.  & 
C.  Comp.  §  1.798.  The  statute  alleged  to  have  been  violated 
by  the  defendant,  is,  so  far  as  involved  herein,  as  follows  : 

"If  any  *  *  employee  *  *  of  any  private  person  *  * 
shall  embezzle  or  fraudulently  convert  to  his  own  use 
*  *  any  money  *  *  of  another  *  *  which  shall  have 
come  into  his  possession,  or  be  under  his  care,  by  virtue 
of  such  employment,  such  ♦  ♦  employee  *  *  shall  be 
deemed  guilty  of  larceny,  and  upon  conviction  thereof 
shall  be  punished  accordingly*^  B.  &  C.  Comp.  §  18C5. 


472  State  v.  Browning.  [47  Or. 

1.  The  question  presented  by  this  appeal  is  whether  or 
not  the  legislative  declaration  that  a  person  who  converts 
to  his  own  use  the  property  of  another  which  has  lawfully 
come  into  his  possession  **shall  be  deemed  guilty  of  lar- 
ceny," etc.,  confers  upon  a  justice's  court  authority  to  hear 
and  determine  the  guilt  or  innocence  of  a  person  charged 
with  the  commission  of  embezzlement,  when  the  value  of 
the  personal  property  converted  does  not  exceed  $35, 
though  the  latter  offense  is  not  specified  in  the  list  of 
crimes  of  which  such  court  has  jurisdiction.  To  uphold 
the  jurisdiction  of  the  municipal  court,  and  thereby  to 
affirm  the  judgment  in  the  case  at  bar, the  clause  "shall  be 
deemed  guilty  of  larceny,"  etc.,  must  be  so  construed  as  to 
render  the  term  "embezzlement"  equivalent  to  "larceny." 
Larceny  was  a  crime  at  common  law,  and  consisted  of  a 
trespass,  committed  in  the  taking  of  the  personal  goods  or 
chattels  of  another,  with  intent  to  convert  them  to  the 
taker's  use,  without  the  consent  of  the  owner.  Embezzle- 
ment was  not  a  common-law  offense,  but  has  been  defined 
as  a  crime  by  statute.  This  crime  cannot  be  committed 
unless  the  defendant  is  in  the  lawful  possession  of  the 
property  at  the  time  of  the  conversion.  "As  trespass,"  says 
Mr.  Justice  Mulkey,  in  Johnson  v.  People,  113  111.  99, "is  an 
injury  to  the  possession  only,  it  logically  and  legally  follows 
that  no  one  in  the  lawful  possession  of  goods  can  commit 
larceny  of  them,  for  it  were  idle  and  absurd  to  talk  of  one 
committing  an  injury  to  his  own  possession."  Embezzle- 
ment consists  in  the  breach  of  some  trust  relation  by  one 
in  the  lawful  possession  of  the  personal  property  of  an- 
other who  fraudulently  converts  it  to  his  own  use.  In  lar- 
ceny, there  is  no  breach  of  any  confidential  relation  as  in 
embezzlement,  while  in  the  latter  crime,  there  is  no  tres- 
pass as  in  larceny.  One  of  the  constituents  of  the  crime  of 
larceny  and  of  embezzlement  is  the  fraudulent  conversion 
of  the  personal  property  of  another  without  his  consent, 


Oct.  1905.]  State  V.  Browning.  473 

which  unlawful  deprivation  in  each  instance  constitutes 
the  gist  of  the  offense. 

2.  This  common  element  of  the  respective  crimes  evi- 
-dently  induced  the  legislative  assembly  to  classify  embez- 
zlement as  larceny.  The  statutory  declaration  that  a  person 
who  embezzles  the  property  of  another  shall  be  deemed 
guilty  of  larceny  did  not  blend  those  crimes,  so  as  to  re- 
•quire  an  indictment  or  an  information  charging  the  com- 
mission of  embezzlement  to  aver  that  the  defendant  **took, 
stole,  and  carried  away"  the  goods  or  chatties  converted: 
State  v.  Sweet,  2  Or.  127;  State  v.  Reinhart,  26  Or.  466  (38 
Pac.  822).  To  have  held,  in  the  cases  cited,  that  the  formal 
<5harge  of  embezzlement  required  an  allegation  that  the 
•defendant  **took,  stole,  and  carried  away"  the  goods  of  an- 
other, would  have  been  contrary  to  the  fact,  and  if  such 
statement  were  considered  material,  would  probably  result 
in  each  instance  in  an  acquittal,  because  in  embezzlement 
the  taking  is  always  lawful. 

3.  To  ascertain  the  intent  of  the  legislative  assembly,  so 
as  to  determine  the  meaning  of  the  clause  "shall  be  deemed 
guilty  of  larceny,"  etc.,  an  examination  of  the  Criminal 
Code  is  thought  advisable.  In  cases  of  murder  and  man- 
slaughter, the  persons  committing  the  respective  crimes, 
under  the  circumstances  indicated  in  the  statute,  are  not 
declared  to  be  guilty  thereof,  but  only  "deemed"  to  be  so: 
B.  &.  C.  Comp.  §§  1741-1750,  2139.  The  same  method  is 
pu-rsued  in  cases  of  rape  (B.  &  C.  Comp.  §  1760),  arson 
<B.  &  C.  Comp.  §§  1779-1781),  burglary  (B.  &  C.  Comp. 
§§  1793-1796),  larceny  (B.  &  C.  Comp.  §§  1798, 1804-1807, 
1811),  forgery  (B.  &  C.  Comp.  §§  1867, 1868),  and  perjury 
<B.  &  C.  Comp.  §  1875).  This  frequent  use  of  the  word 
**deemed"  leads  us  to  conclude  that  the  legislative  as- 
sembly intended  by  its  use  in  Section  1805  to  classify  em- 
bezzlement as  larceny.  Not  larceny  as  the  term  was  under- 
stood  at  common  law,    which    necessarily  involved  an 


474  Lassas  v.  McCarty.  [47  Orl 

unlawful  taking  of  the  personal  goods  or  chatties  of  an- 
other, but  statutory  larceny,  which  consists  of  a  felonious 
conversion  of  the  personal  property  of  another,  of  which 
the  person  guilty  thereof  had  the  rightful  possession. 

The  legislative  assembly  possessed  plenary  power  to 
designate  embexzlement  by  any  name  that  it  might  adopts 
and  having  selected  the  word  "larceny"  as  expressing  the 
crime  committed,  a  justice's  court  has  jurisdiction  thereof 
when,  as  in  the  case  at  bar,  the  value  of  the  propert}-^  con- 
verted does  not  exceed  the  sum  of  $35. 

The  Municipal  Court  for  the  City  of  Portland  having- 
the  same  authority  as  a  justice's  court,  it  follows  that  the 
judgment  of  the  circuit  court  should  be  affirmed,  and  it  is 
so  ordered.  Affirmed. 


Decided  80  January,  190B. 
LASSAS  V.  McOABTY. 

84  Pac.  76. 

Pleadiko— Waiver  of  Plea  in  Abatement. 

1.  Under  the  Oregon  practice  a  plea  In  abatement  must  be  separately  flled^ 
and  is  waived  If  Joined  with  an  answer  to  the  merits  of  the  case. 

For  instance :  In  a  mortfl^affe  foreclosure  suit  a  plea  that  the  mortgage  was 
not  validly  ansigned  to  plaintiff  will  not  be  considered  if  Joined  with  a  plea  In 
bar,  but  will  be  ignored. 

Evidence  Conscdered. 

2.  The  evidence  doeR  not  show  that  the  maker  of  the  note  and  mortgage  in 
question  was  so  mentally  Incompetent  when  she  executed  those  instruments  as- 
to  be  Incapable  of  making  a  contract. 

Nonexpert  Evidence  of  Mental  Condition. 

8.  The  weight  to  be  attached  to  a  nonexpert  opinion  as  to  the  mental  condi- 
tion of  a  person  whose  capacity  to  contract  is  in  issue  is  a  question  for  the 
determination  of  the  court  or  Jury,  by  considering  whether  or  not  the  facts 
testified  to  by  the  witnesses  as  a  basis  for  their  conclusions  Justify  the  opinions 
expressed. 

Bills  and  Notes— Presumption  of  Consideration. 

4.  The  presumption  of  the  statute  (B.  &  C.  Comp.  g  788,  subd.  21),  that  a  prom- 
issory note  was  given  for  a  sufficient  consideration,  Is  of  much  importance  in 
business  transactions,  and  should  not  be  lightly  regarded  in  favor  of  those  who 
have  carelessly,  or  by  being  unduly  confiding,  set  afioat  commercial  paper. 

Promissory  Note  —  Consideration  for  Purchase— Bona  Fides. 

5.  Where,  at  the  time  a  note  for  tl.SOO,  secured  by  a  second  mortgage  on  cer- 
tain real  estate,  was  executed,  the  property  was  subject  to  a  first  mortgage  for 


Jan.  1906.]  Lassas  v.  McCarty.  475 

S3,600,  and  at  the  time  plaintiff  purchaned  the  note  and  mortgage  it  did  not  «^ 
pear  that  the  prior  mortgage  had  been  discharged,  the  tact  that  plaintiff  pur- 
chased such  second  note  and  mortgage  for  $1,000,  without  knowledge  of  any  fact 
that  would  tend  to  render  the  note  Invalid,  did  not  deprive  him  of  the  right  U> 
enforce  the  note  and  mortgage  as  an  innocent  purchaser  for  value. 

Amoukt  of  Recoveby  Allowed  Bona  Fide  Holder  op  Promissory 
Note  Obtained  From  Makeb  by  Fraud.* 

6.  Under  Section  4450,  B.  A  C.  Corap.,  providing  that  the  holder  of  a  negotiable 
instrument  in  due  course  may  enforce  payment  for  the  full  amount  thereof 
against  all  parties  liable  thereon,  a  bona  fide  purchaser  of  a  note  and  mortgage 
is  not  limited  to  a  recovery  of  the  amount  paid  therefor,  but  is  entitled  to  enforce 
the  same  for  the  full  amount  due  thereon,  even  though  the  execution  of  the  note 
was  induced  by  fraud  and  it  was  bought  at  a  heavy  discount. 

Attorney's  Fee  in  Note— Question  on  Evidence. 

7.  The  amount  to  be  allowed  under  the  terms  of  a  note  providing  for  a  reason- 
able attorney's  fee  in  case  of  suit  or  action  thereon  must  be  determined  by  evi- 
dence, in  case  of  dispute,  and  unless  there  is  evidence,  only  the  statutory  fee 
should  be  allowed. 

Costs  and  Disbursements  on  Appeal. 

8.  The  allowance  of  costs  and  disbursements  on  appeal  in  equity  cases  is 
entirely  discretionary,  and  they  will  be  apportioned  as  different  circumstances 
may  render  proper:  B.  A  C.  Comp.  g  666. 

From  Baker :   Robert  Eakin,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  a  suit  by  George  Lassas  against  Lettie  McCarty 
to  foreclose  a  mortgage.  The  complaint  states  that  the 
defendant,  on  November  21, 1900,  gave  to  one  G.  L.  Webb 
her  promissory  note  for  the  sum  of  $1,500,  payable  in 
one  year,  with  interest  thereon  at  the  rate  of  8  per  cent 
per  annum,  and  to  secure  the  payment  thereof  she  at  the 
same  time  executed  to  him  a  mortgage  of  certain  real 
property  in  Baker  County,  which  mortgage  was  duly  re- 
corded. Various  assignments  of  the  note  and  mortgage 
are  set  out,  and  it  is  alleged  that  on  July  2,  1901,  the 
plaintiff  for  a  valuable  consideration  became  the  owner 
and  holder  thereof,  and  that  no  part  of  the  debt  so  secured 
has  ever  been  paid.  The  answer  admits  the  making  of 
the  note  and  mortgage,  but  denies  that  they  were  given 


*N0TK.— See  11  Am.  St,  Rep.  800-326  for  monogfraph,  Fraud  in  Inception  ot 
Negotiable  Instruments  as  Affecting  Bona  Fide  Holders,  in  the  course  of  which 
is  a  discussion  of  the  question  how  much  may  be  recovered  by  a  bona  flde  holder, 
against  a  defrauded  maker.  Repokter. 


476  Lassas  v.  McCarty.  [47  Or. 

for  any  consideration,  or  that  plaintiff  is  the  holder  thereof 
without  notice,  or  that  any  condition  of  the  mortgage  has 
been  broken.  As  a  separate  defense  facts  are  stated  which 
show  that  the  execution  of  the  note  and  mortgage  were 
induced  by  the  fraudulent  representations  of  the  original 
mortgagee,  and  that  the  several  pretended  assignments 
were  without  consideration  and  with  notice  of  such  fraud. 
For  a  further  defense  it  is  alleged  that  at  the  time  the 
note  and  mortgage  were  given  the  defendant's  mind  was 
weak  and  she  was  easily  imposed  upon  in  business  and 
financial  matters,  and  that  by  reason  of  such  incapacity, 
superinduced  by  the  fraudulent  representations  of  Webb 
and  his  agents,  she  was  imposed  upon  and  induced  to 
give  the  note  and  mortgage  without  any  consideration 
therefor.  The  allegations  of  new  matter  in  the  answer 
having  been  denied  in  the  reply,  the  cause  was  referred, 
and  from  the  testimony  taken  the  court  found  that  by 
reason  of  the  defendant's  mental  condition  and  of  the 
fraud  practiced  upon  her  the  note  and  mortgage  were 
void,  and,  having  rendered  a  decree  dismissing  the  suit, 
the  plaintiff  appeals.  Reversed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr.  A.  B.  Winfree. 

For  respondent  there  was  a  brief  over  the  names  of  H,  E. 
Courtney,  C.  A.  Moore,  and  C.  W,  ManvilU,  with  an  oral 
argument  by  Mr,  Charles  Allen  Moore, 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

1.  In  support  of  the  conclusion  reached  by  the  trial 
court,  it  is  contended  by  defendant's  counsel  that  as  the 
pretended  assignments  of  the  mortgage  were  not  evi- 
<lenced  by  written  instruments,  signed,  sealed,  witnessed, 
acknowledged,  delivered  and  recorded,  the  plaintiff  failed 
to  show  a  right  to  maintain  the  suit,  and  hence  the  decree 
should   be  affirmed.     It   will  be  remembered    that  the 


Jan.  1906.]  Lassas  v.  McCarty.  477 

answer  denies  that  the  note  and  mortgage  were  assigned 
to  plaintiff.  The  testimony  shows  that  the  note  was  as- 
signed in  blank  by  Webb,  the  payee,  but  that  the  persons 
who  severally  owned  the  mortgage  as  an  incident  of  the 
note  did  not  attempt  to  transfer  it  with  the  formalities 
required  to  convey  real  property.  It  also  appears  that  a 
person  who  at  one  time  held  the  note  as  collateral  security 
did  not  assign  it  to  the  owner  thereof  when  the  principal 
debt  was  paid,  but  surrendered  it  to  the  owner,  from  whom 
it  passed  in  due  course  of  business  to  the  plaintiff.  Whether 
or  not  the  statute,  providing  that  mortgages  may  be  as- 
signed by  a  written  instrument,  executed  and  acknowl- 
edged with  the  same  formalities  as  prescribed  in  deeds  and 
mortgages  of  real  estate,  and  recorded  as  directed  (B.  &  C. 
Comp.  §§  5362, 5363),  is  controlling,  we  do  not  deem  neces- 
sary to  a  decision  herein  ;  for  if  the  mortgage  was  not. 
transferred  according  to  the  established  mode,  the  proper 
manner  to  present  the  question  was  by  a  plea  in  abate- 
ment (1  Chitty,  PL  *446;  Pomeroy,  Code  Rem.,  3  ed.,. 
§  697),  but  such  defense  having  been  joined  with  a  plea 
to  the  merits,  which  was  in  bar  of  the  suit,  the  special 
defense  now  insisted  upon  was  waived  :  Winter  v.  Norton^ 
1  Or.  43  ;  Hopwood  v.  Patterson,  2  Or.  49  ;  Murray  v.  Mur- 
ray, 6  Or.  26 ;  Chamberlain  v.  Hibbard,  26  Or.  428  (38  Pac. 
437);  Elder  v.  Rourke,  27  Or.  363  (41  Pac.  6);  Fiore  v. 
Ladd,  29  Or.  528  (46  Pac.  144). 

2.  Considering  the  case  on  its  merits,  the  defendant,  as 
a  witness  in  her  own  behalf,  testified  that  in  November,. 
1900, she  was  the  owner  of  a  farm  in  Baker  County  which 
was  subject  to  a  mortgage  of  $3,500,  and,  desiring  to  sell 
the  land,  she  listed  it  for  that  purpose  with  one  James 
Cole,  a  real  estate  agent,  who  introduced  G.  L.  Webb  and 
M.  R.  Hansen  to  her,  saying  he  had  secured  purchasers 
for  her  ranch  ;  that  Cole  and  Hansen  went  with  her  to  ex- 
amine the  land,  and  after  returning  the  latter  told  her 


478  Lassas  v.  McCarty.  [47  Or. 

that  Webb  would  buy  the  premises  and  pay  her  therefor 
$3,000  in  cash,  assume  the  payment  of  the  mortgage  of 
$3,500,  and  transfer  to  her  the  exclusive  right  to  manu- 
facture and  sell  a  motor  pump  in  certain  counties  in  Utah, 
and  that  Webb  also  assented  to  and  reiterated  such  offer; 
that  she  executed  the  note  and  mortgage  in  question  in 
pursuance  of  an  agreement  on  the  part  of  Webb  and  Han- 
sen that  if  they  did  not  buy  her  farm  they  would  at  any 
time  within  six  months  return  the  note  and  mortgage,  if 
she  was  dissatisfied  with  the  transfer  of  the  right  to  sell 
such  pump  in  the  counties  named.  The  right  in  question 
was  evidently  valued  at  $1,400,  for  the  further  sum  of  $100 
in  cash  was  paid  her  as  the  consideration  for  the  note  and 
mortgage.  This  latter  sum  was  advanced  to  enable  her 
son  to  secure  a  model  of  the  pump  and  to  canvass  the  ter- 
ritory specified  to  sell  the  right  assigned.  She  further 
testified  that  about  three  days  after  the  note  and  mortgage 
were  given  Webb  told  her  he  had  no  money  with  which 
to  buy  her  farm,  whereupon  she  demanded  a  return  of  the 
instruments  so  executed,  telling  him  she  was  dissatisfied 
with  the  transfer,  but  he  asserted  that  he  could  not  com- 
ply with  her  request,  claiming  that  he  had  sold  the  note 
'and  mortgage  to  Hansen. 

On  cross-examination  she  said:  *'I  knew  I  was  signing 
a  mortgage,  but  I  didn't  know  I  was  executing  an  iron- 
clad note."  She  further  said:  "I  don't  remember  ever 
signing  a  note."  She  also  testified  that  she  tendered  to 
Webb  the  sum  of  $100  which  she  had  received,  but,  as  he 
refused  to  accept  it,  she  had  deposited  that  sum  in  a  bank 
for  him,  where  it  had  since  remained.  This  witness  on 
recross-examination  testified  as  follows  : 

**Q.  You  did  not  understand  the  effect  of  those  papers 
you  say  ? 
A.  No,  sir. 


Jan.  1906.]  Lassas  v.  McCarty.  479 

Q.  You  didn't  even  know  what  you  were  signing,  did 
you  ? 

A.  I  thought  it  would  be  a  part  of  the  payment  upon 
the  ranch: 

Q.  And  was  it  to  be  a  part  payment  upon  the  ranch  ? 

A.  Yes,  if  they  would  pay  me  three  thousand  in  cash 
and  assume  the  first  mortgage  as  they  promised,  and  that 
would  bring  it  to  the  price  I  asked  for  it. 

Q.  And  upon  that  understanding  by  you,  you  signed 
the  note  and  mortgage,  thinking  it  was  part  of  the  pay- 
ment ? 

A.  Yes,  sir;  I  did." 

The  testimony  further  shows  that  no  patent  had  been 
issued  protecting  the  pump,  which  Webb  claimed  to  have 
invented.  He  promised  the  defendant,  however,  that  he 
would  secure  a  patent  therefor ;  but,  so  far  as  can  be  ascer- 
tained from  the  testimony,  he  failed  in  this  respect.  The 
testimony  also  disclosed  that  about  1890  the  defendant's 
husband  and  a  son  were  shot  and  killed  at  the  same  time. 

Monroe  Masters,  appearing  as  defendant's  witness,  hav- 
ing testified  that  he  had  been  acquainted  with  the  defend- 
ant 30  years,  her  counsel,  referring  to  the  consequence 
of  such  deaths  upon  her,  inquired  :  **What  effect,  if  any, 
did  that  seem  to  have  upon  Mrs.  McCarty's  mind  ?"  And 
he  answersd : 

"Well,  it  had  a  pretty  bad  effect  upon  her  mind;  she  has 
not  been  the  same  woman  that  she  was  before. 

Q.  What  is  the  condition  of  her  mind  at  this  time  with 
reference  to  the  transaction  of  business,  and  what  has  it 
been  since  Mr.  McCarty's  death? 

A.  Well,  she  has  not  been  able  to  attend  to  her  own 
business  affairs.     She  has  had. to  have  other  people  do  it. 

Q.  During  this  time  has  her  mind  been  strong  or  weak  ? 

A.  It  has  been  weak. 

Q.  State  whether  or  not  she  is  susceptible  to  undue  in- 
fluences in  her  business  affairs? 

A.  Yes,  sir;  she  is,  and  has  been  during  all  of  this 
time. 


480  Lassas  v.  McCarty.  [47  Or. 

Q.  Are  you  able  to  state  some  instances  of  her  suscepti- 
bility to  such  influence? 

A.  Well,  in  a  business  proposition  she  will  ask  you  one 
thing,  and  then  go  and  ask  somebody  else  the  same  ques- 
tion, you  know,  and  the  last  party  always  generally  has  the 
influence.  Well,  maybe  just  like  she  was  going  to  rent 
her  ranch,  she  will  rent  it  to  one  man  and  then  turn 
around  and  rent  it  to  another  before  he  gets  it.  She 
never  remembers  anything.     Her  memory  is  not  long. 

Q.  What  can  you  say  in  respect  to  her  mind  having 
decision  or  otherwise,  firmness  and  the  like? 

A.  Well,  I  think  her  mind  is  weak.  I  don't  think  she 
has  any  mind  of  her  own  at  all.  She  has  to  ask  every- 
body about  what  she  does." 

On  cross-examination  the  witness  was  asked: 
**Q.  You  spoke  a  while  ago  of  Mrs.  McCarty's  renting 
this  place  first  to  one  person  and  then  to  another.     Do 
you  know  of  your  own   knowledge  any  time  when  she 
rented  the  place  to  different  parties  at  the  same  time? 

A.  Yes,  sir;  she  rented  it  to  me,  and  I  done  work  on  it 
for  two  weeks,  and  then  she  rented  it  to  another  fellow. 
We  didn't  have  writings  drawn  up,  but  she  told  me  I 
could  have  it,  and  I  went  upon  the  land." 

The  witness,  W.  C.  Hindman,  another  acquaintance, 
testified  that  in  his  opinion  Mrs.  McCarty's  mind  had 
been  weakened  by  the  death  of  her  husband  and  of  her 
son,  and  in  most  other  respects  corroborates  the  testimony 
of  the  preceding  witness,  but  he  gives  no  particular  in* 
stances  of  her  alleged  mental  incapacity.  M.  J.  Hind- 
man,  who  had  known  the  defendant  several  years,  testi- 
fied that  he  did  not  consider  her  capable  of  transacting 
her  own  business;  that  he  knew  of  her  paying  a  note  when 
she  held  a  receipt  showing  the  payment  thereof;  that  she 
owed  on  account  of  the  purchase  of  real  property  $400,. 
which  sum  the  witness  offered  to  loan  her  and  tendered 
that  amount  to  the  person  to  whom  it  was  due,  but  he  re- 
fused to  accept  it,  and  she,  by  failing  to  pay  that  sum,. 


Jan.  1906.]  Lassas  v.  McCarty.  481 

forfeited  her  right  and  surrendered  the  property,  which  is 
now  worth  about  $5,000;  and  that  she  had  settled  a  claim 
against  a  railroad  company  for  damages  on  account  of  a 
personal  injury  for  $1,000,  when  the  witness  had  advised 
her  that  she  should  demand  $2,500,  and  she  had  promised 
to  do  just  what  he  told  her.  In  other  respects  this  wit- 
ness corroborates  the  testimony  of  Masters  and  of  W.  C. 
Hindman. 

That  Mrs.  McCarty  was  imposed  upon  by  Webb  and 
Hansen  must  be  admitted.  She  executed  the  note  and 
mortgage  for  a  transfer  of  a  pretended  patent  right  that 
had  no  existence.  Her  mind  was  evidently  somewhat  im- 
paired by  the  violent  deaths  of  her  husband  and  of  her 
son  occurring  simultaneously,  but  we  do  not  think  the 
testimony  shows  such  a  state  of  mental  weakness  as  to 
render  her  incompetent  to  enter  into  a  valid  contract. 
Her  mental  condition  is  to  be  determined  from  testimony 
of  her  acts  and  conduct  at  the  time  the  note  and  mort- 
gage in  question  were  executed,  and  not  from  the  opin- 
ions of  witnesses  in  relation  thereto.  The  only  instances 
referred  to  by  the  witnesses  as  tending  to  show  the  state 
of  the  defendant's  mind  at  or  near  that  time  are  her  rent- 
ing a  farm  after  she  had  orally  leased  it  to  another,  her 
payment  of  a  note  for  which  she  held  a  receipt,  her  fail- 
ure to  redeem  certain  real  property  when  the  money  was 
offered  her  for  that  purpose,  and  her  settlement  of  a  claim 
for  damages  for  a  sum  less  than  recommended.  The  tes- 
timony does  not  show  that  the  defendant  knew  that  Mas- 
ters had  taken  possession  of  her  farm,  pursuant  to  a  lease 
thereof,  when  she  let  the  premises  to  another  person.  The 
note  which  she  paid,  when  she  held  a  receipt  evidencing 
the  payment  thereof,  may  have  been  for  a  small  sum  and 
less  than  what  she  would  have  been  obliged  to  pay  an  at- 
torney as  fees  to  defend  an  action,  so  that  her  settlement, 

17  Ob. — 81 


482  Lassas  v.  McCarty.  [47  Or. 

instead  of  disclosing  mental  weakness,  may  have  proved 
superior  wisdom.  The  testimony  does  not  show  what  the 
real  property  was  worth  when  the  defendant  declined  to 
borrow  $400  with  which  to  discharge  her  obligation.  The 
present  value  of  that  land,  $5,000,  may  be  sufficient  to 
show  that  her  refusal  to  borrow  the  money  with  which  to 
pay  the  debt  was  unwise;  but  her  acts  in  this  respect 
afford  no  evidence  of  mental  infirmity,  for  she  may  have 
concluded  that  the  land  was  not  worth  more  than  the 
debt,  and,  since  she  could  not  then  pay  it,  she  may  have 
preferred  to  surrender  her  right  rather  than  to  incur  a 
personal  obligation  to  a  friend  who  offered  to  loan  her  the 
money.  If  an  error  of  judgment  as  to  the  enhanced  value 
of  real  estate  is  to  afford  conclusive  evidence  of  mental  in- 
capacity suflBcient  to  set  aside  a  voluntary  conveyance,- it 
is  safe  to  predict  that  few  persons  could  be  found  who 
would  be  willing  to  risk  investing  their  money  in  land. 
Whether  the  accepting  of  $1,000  as  damages  for  a  per- 
sonal injury,  instead  of  bringing  an  action  to  recover 
$2,500,  with  the  delays  and  expenses  incident  thereto, 
shows  weakness  of  mind,  is  a  question  upon  which  persons 
probably  entertain  differences  of  opinion.  It  might  be 
thought  by  some  that  such  settlement  evidenced  mental 
incapacity,  while  others  might  conclude  that  it  manifested 
discretion  and  judgment. 

3.  The  opinion  of  an  intimate  acquaintance  is  admissi- 
ble in  this  State  as  tending  to  prove  the  mental  condition  of 
a  person  whose  capacity  to  contract  or  whose  responsibility 
for  the  commission  of  a  crime  is  the  subject  of  inquiry, 
but  the  reason  for  the  belief  entertained  by  the  witness, 
upon  the  subordinate  issue  involved,  must  be  given  :  B.  &  C. 
Com  p.  §  718,  subd.  10.  The  degree  of  familiarity  prescribed 
by  the  statute  requires  a  personal*  knowledge  of  the  facts 
upon  which  the  opinion  is  based.  The  weight  to  be  at- 
tached to  such  opinions,  however,  is  a  question  for  the  court 


Jan.  1906.]  Lassas  v.  McCarty.  483 

or  jury  to  determine,  by  considering  Vhether  or  not  the 
facts  testified  to  by  the  witnesses  as  a  basis  for  their  con- 
clusions justified  the  opinions  expressed  :  Rogers,  Expert 
Testimony  (2  ed.),  p.  160.  Each  witness  who  testified  upon 
this  branch  of  the  case  was  intimately  acquainted  with  the 
defendant,  and  therefore  qualified  to  express  an  opinion  as 
to  her  mental  condition,  and  the  belief  entertained  by  each 
was  undoubtedly  the  result  of  an  honest  conviction.  A 
consideration  of  the  reasons  given  by  the  witnesses  does 
not  convince  us,  however,  that  Mrs.  McCarty's  mind  was 
so  weak  as  to  render  her  note  and  mortgage  void. 

4.  The  maintenance  of  the  presumption  that  a  promis- 
sory note  was  given  or  indorsed  for  a  suflScient  considera- 
tion (B.  &  C.  Comp.  §  788,  subd.  21)  justified  the  maxim 
invoked  in  Bedell  v.  Herring,  77  Cal.  572  (20  Pac.  129,  11 
Am.  St.  Rep.  307),  "that  when  one  by  his  carelessness  and 
undue  confidence  has  enabled  another  to  obtain  the  money 
of  an  innocent  third  person,  he  must  answer  for  the  loss 
which  he  has  thus  caused.'* 

5.  This  brings  us  to  a  consideration  of  the  question 
whether  or  not  plaintiff  secured  the  title  to  the  note  and 
mortgage  under  such  circumstances  aa  to  render  him  an 
innocent  purchaser  thereof  for  a  valuable  consideration 
and  without  notice  of  the  imposition  practiced  upon  the 
defendant.  An  examination  of  plaintiff's  testimony  shows 
that  he  purchased  the  note  before  maturity,  paying  there- 
for $1,000,  which  was  two-thirds  of  its  face  value,  without 
knowledge  of  any  fact  that  would  tend  to  render  the  nego- 
tiable instrument  invalid.  It  is  argued  by  defendant's 
counsel  that  the  sum  paid  for  the  note  imparts  notice  of 
its  infirmity,  and  hence  plaintiff  was  not  an  innocent  pur- 
chaser thereof.  It  will  be  remembered  that  when  the  mort- 
gage in  question  was  given  the  premises  were  incumbered 
by  a  prior  mortgage  of  $3,500.  Whether  or  not  the  earlier 
lien  had  been  discharged  when  plaintiff  secured  an  assign- 


484  Lassas  v.  McCarty.  [47  Or. 

mentof  the  subsequent  mortgage  is  not  disclosed  by  the 
evidence.  If  it  be  assumed,  however,  that  notice  of  any 
invalidity  in  the  giving  of  a  promissory  note  could  be  im- 
plied from  a  purchase  thereof  at  a  discount,  the  defendant 
should  have  introduced  evidence  tending  to  show  that  the 
security  was  ample  for  the  payment  of  the  entire  debt  evi- 
denced by  the  instrument  thus  assigned:  Cannon  v.  Can- 
field,  11  Neb.  506  (9  N.  W.  693);  Citizens'  Bank  v.  Ryman, 
12  Neb.  541  (11  N.  W.  850).  No  evidence  having  been 
offered  on  this  subject,  it  must  be  presumed  that  the  prior 
incumbrance  remains  undischarged  :  B.  &  C.  Comp.  §  788, 
subd.  33. 

6.  It  is  insisted  by  defendant's  counsel  that  as  plaintiff 
paid  only  $1,000  for  the  note  and  mortgage,  the  execution 
of  which  was  induced  by  fraud,  the  sum  so  paid  and  inter- 
est thereon  is  the  limit  of  his  recovery,  and  not  the  sum 
specified  in  the  note.  A  diversity  of  judicial  utterance 
exists  on  this  important  question,  as  will  be  seen  by  exam- 
ing  the  authorities  collated  in  the  notes  appended  to  the 
cases  ol  Bailey  v.  /Smi^/i(Ohio),84  Am.  Dec.  385,  and  jBcdeH 
V.  Herring  (Cdi\.),  11  Am.  St.  Rep.  307.  Whatever  the  rule 
may  be  in  other  jurisdictions,  it  is  settled  in  this  State  by 
statute,  enacted  prior  to  the  giving  of  the  note  and  mort- 
gage, that  the  holder  of  a  negotiable  instrument  in  due 
course  may  enforce  payment  for  the  full  amount  thereof 
against  all  parties  liable  thereon :  B.  &  C.  Comp.  §  4459. 

7.  The  written  promise  to  pay  a  stipulated  sum,  given 
by  defendant  to  Webb,  contained  a  clause  providing  for 
the  payment  of  such  additional  sum  as  the  court  might  ad* 
judge  reasonable  as  attorney's  fees  in  case  suit  was  insti- 
tuted to  collect  the  note  or  any  part  thereof.  The  complaint 
alleges  that  $150  was  a  reasonable  sum  as  attorney's  fees 
for  foreclosing  the  mortgage.  The  answer  denies  that  any 
sum  would  be  reasonable  for  that  purpose.  Upon  this 
issue  no  evidence  was  offered  by  either  party,  and  this 


Dec.  1905.]  State  v.  Smith.  485 

being  so,  the  statutory  fee  only  will  be  allowed  :  Bradtfeldt 
V.  Cooke,  27  Or.  194  (40  Pac.  1,  50  Am.  St,  Rep.  701);  Coa; 
V.  Alexander,  30  Or.  438  (46  Pac.  794);  First  Nat.  Bank  v. 
Mack,  35  Or.  122  (57  Pac.  326). 

8.  It  follows  from  these  considerations  that  the  decree 
of  the  court  below  is  reversed,  and  one  will  be  entered  here 
foreclosing  the  mortgage  and  ordering  a  sale  of  the  prem- 
ises, to  pay  plaintiff  the  sum  due  as  evidenced  by  the  prom- 
issory note,  principal  and  interest,  together  with  his  costs 
and  disbursements  in  both  courts.  Reversed. 


Decided  4  December,  1905. 


STATE  V.  SMITH.  .  .7   48&\ 

\  47  603*1 


83  Pac.  805. 

Triai*  — Change  op  Vknue  —  Discretion. 

1.  Where  affldaviis  on  an  application  for  a  change  of  venue  on  the  ground  of 
local  prejudice  are  conflicting,  and  it  appears  that  a  Jury  was  selected  without 
unusual  difficulty,  it  cannot  be  said  that  the  court  abused  its  discretion  in  deny- 
ing the  motion.  , 

Perjury— Evidence  of  Knowledge  of  Falsity  of  Testimony. 

2.  Where,  in  an  action  for  injuries  alleged  to  have  been  sustained  on  a  defec 
tive  city  sidewalk,  accused  testified  that  the  plaintiff  fell  into  a  hole  in  the  side- 
walk at  night,  and  fractured  his  kneecap,  evidence  that  about  the  same  time 
such  injury  was  alleged  to  have  occurred  the  plaintiff  in  such  action  and  accused 
were  in  two  other  cities,  and  claimed  that  the  same  injury  occurred  on  their 
defective  streets,  until  a  physician  who  was  called  stated  that  the  injury  was  of 
long  standing,  when  the  plaintiff  admitted  the  same  in  accused's  presence,  was 
admissible,  as  showing  accused's  knowledge  of  the  falsity  of  his  evidence. 

Perjury— Rhowing  Knowledge  of  Fal.sity. 

3.  In  a  prosecution  for  perjury,  it  is  incumbent  on  the  State  to  show,  not  only 
that  the  accused  made  the  alleged  false  statements,  but  that  he  knew  them  to  be 
false,  or  that  he  stated  them  under  such  circumstances  that  knowledge  of  the 
falsity  would  be  imputed  to  him. 

Curing  Error  by  Suhsequent  Admission. 

4.  Error  In  the  admission  of  testimony  is  cured  by  a  subsequent  admission  of 
the  truth  of  the  same  matter  by  the  party  against  whom  It  was  offered. 

Trial— Extent  of  Duty  to  Instruct  as  to  thb  Law. 

5.  Under  Section  139,  B.  <&  C.  Comp.,  requiring  a  trial  judge  to  state  to  the  jury 
all  matters  of  law  that  he  may  deem  necessary  for  their  information  in  reaching 
a  verdict,  a  judge  need  not,  in  the  absence  of  a  special  request,  instruct  on  col- 
lateral matters,  as,  with  reference  to  evidence  of  character. 


486  State  v.  Smith.  [47  Or. 

TiMB  FOR  REQUESTINO  INSTRUCTIONH. 

6.  In8truction8  particularly  desired  nhould  be  seasonably  presented  for  the 
consideration  of  the  court,  and  the  limit  of  time  for  so  doing  as  to  matters  then 
known  Is  the  time  of  the  retiring  of  the  Jury  for  deliberation. 

Trial.  —  Refusikg  Instructions  Already  Covered. 

7.  It  Is  not  error  to  decline  to  give  a  requested  instruction,  even  if  appropri- 
ate, where  the  same  rule  has  already  been  announced  in  another  paragraph. 

From  Clatsop :   Thomas  A.  McBride,  Judge. 

For  appellant  there  was  a  brief  over  the  names  of  Wil- 
liam  /.  Donovan  and  Noland  &  Smith,  with  an  oral  argu- 
ment hy  Mr.  Oeorge  Noland  and  Mr.  Donovan. 

For  the  State  there  was  a  brief  over  the  names  of  Ear- 
rison  Allen^  District  Attorney,  and  A.  M.  Smith,  with  an 
oral  argument  by  Mr.  Allen. 

Mr.  Justice  Bean  delivered  the  opinion  of  the  court. 

The  defendant  was  convicted  of  the  crime  of  perjury 
for  testifying  falsely  while  a  witness  for  the  plaintiff  in  an 
action  brought  by  one  Charles  R.  Lane,  under  the  assumed 
name  of  John  L.  Bock,  against  the  City  of  Astoria,  to  re- 
cover damages  for  an  injury  alleged  to  have  been  received 
by  him  on  account  of  a  defective  street.  The  case  for  the 
prosecution  tended  to  show  that  the  defendant  and  Lane 
were  friends  and  acquaintances  residing  in  Contra  Costa 
County,  California;  that  Lane  was  and  had  been  lame 
for  many  years  from  a  fractured  kneecap  which  had  not 
united ;  that  in  the  summer  of  1900  he  and  the  defendant 
came  north,  visiting  Seattle,  Portland  and  Astoria ;  that 
while  in  Astoria  Lane  claimed  to  have  stepped  or  fallen 
through  a  hole  in  the  street,  fracturing  his  kneecap,  and 
subsequently,  in  February,  1902,  under  the  name  of  John 
L.  Bock,  sued  the  city  to  recover  damages  therefor.  The 
defendant  was  a  witness  for  Lane  in  such  action,  and 
testified  on  the  trial  thereof  that  his  name  was  George  R. 
Rogers,  and  that  the  true  name  of  the  plaintiff  was  John 
L.  Bock;  that  on  the  21st  of  August,  1900,  while  he  and 
the  plaintiff  and  one  Charles  Smith  were  walking  along 


Dec.  1905.]  State  v.  Smith.  487 

Duane  Street,  plaintiff  fell  or  slipped  into  a  hole  in  the 
planking  of  the  street,  which  he  could  not  see  on  account 
of  the  darkness,  and  sustained  an  injury  to  his  kneecap 
and  leg ;  that  Smith  and  the  witness  picked  him  up  and 
carried  him  to  his  lodgings  and  called  a  physician,  who 
put  the  leg  up  in  a  plaster  cast ;  that  he  was  taken  to  Port- 
land the  next  day  and  from  there  to  Oakland,  California; 
that  while  in  Portland  a  physician  was  called  and  read- 
justed the  bandages  on  the  leg;  that  after  he  reached 
Oakland  he  was  in  bed  for  about  three  months  with  his 
leg  done  up  in  plaster  of  paris ;  that  the  leg  was  seen  by 
the  witness  several  times;  that  since  the  plaster  cast  was 
taken  off  Lane  had  not  been  able  to  do  anything  on  ac- 
count of  the  injury.  The  State  was  also  permitted  to  prove 
by  a  witness  Harmon  that,  when  the  defendant  and  Lane 
were  in  Seattle,  Lane,  under  the  assumed  name  of  Meyers, 
pretended  to  have  received  an  injury  to  his  knee  through 
a  defect  in  the  street,  and  he  and  the  defendant  made  a 
claim  against  the  city  for  damages  on  account  thereof  and 
employed  an  attorney  to  prosecute  an  action  therefor,  and 
that  while  in  Portland,  about  the  same  time  the  accident 
was  alleged  to  have  occurred  in  Astoria,  Doctor  Rockey 
was  summoned  by  defendant  to  attend  Lane,  who  pre- 
tended to  be  suffering  greatly  from  an  injury  to  his  knee 
which  he  and  the  defendant  said  was  received  on  one  of 
the  streets  of  Portland.  The  doctor,  however,  upon  an  ex- 
amination, readily  discovered  that  the  injury  was  of  long 
standing,  and  Lane  so  admitted  to  him  in  the  presence  of 
the  defendant.  The  record  contains  several  assignments 
of  error  which  will  be  noticed  in  their  order. 

1.  The  motion  for  change  of  venue  was  addressed  to  the 
sound  discretion  of  the  trial  court.  It  was  based  on  the 
affidavit  of  the  defendant's  counsel,  showing,  or  tending 
to  show,  that  considerable  prejudice  existed  against  the 
defendant  in  the  City  of  Astoria,  and  that  there  had  been 


488  State  v.  Smith.  [47  Or. 

much  comment  on  the  case  in  the  local  papers.  The 
counter-aflBdavits  on  behalf  of  the  State,  however,  were 
to  the  effect  that,  while  the  case  had  been  frequently  dis- 
cussed by  the  public  and  in  the  newspapers,  no  substan- 
tial prejuice  existed  against  the  defendant  and  he  could, 
in  the  opinion  of  the  affiants,  secure  a  fair  and  impartial 
trial  in  the  county.  After  the  motion  was  overruled  the 
trial  proceeded,  and  there  seems  to  have  been  no  diffi- 
culty in  securing  a  jury.  The  ruling  of  the  court  in  deny- 
ing the  motion  for  change  of  venue  will,  therefore,  not 
be  disturbed :  State  v.  Pomeroy,  30  Or.  17  (46  Pac.  797); 
State  V.  Humphrey 8y  43  Or.  44  (70  Pac.  824);  State  v.  Arm- 
strong, 43  Or.  207  (73  Pac.  1022). 

2.  Assignments  of  error  are  predicated  upon  the  over- 
ruling of  defendant's  objections  to  the  evidence  of  Mr. 
Harmon  and  Dr.  Rockey,  concerning  the  circumstances 
and  actions  of  the  defendant  and  Lane  while  in  Seattle  and 
Portland,  and  Lane's  condition  and  defendant's  knowledge 
thereof.  The  objection  urged  to  this  testimony  is  that  it 
tended  to  prove  the  commission  by  the  defendant  of 
crimes  other  than  the  one  charged  in  the  indictment. 
But  it  is  not  open  to  the  objection  suggested.  The  evi- 
dence was  offered  and  admitted  as  tending  to  show  that 
the  testimony  given  by  the  defendant  on  the  trial  of  the 
action  of  Bock  v.  Astoria  was  not  only  false,  but  was  known 
to  him  at  the  time  to  be  false. 

3.  Perjury  consists  in  the  willful  giving,  under  oath  or 
affirmation,  of  false  testimony,  material  to  the  issue  or 
point  of  inquiry,  before  a  court  or  tribunal  having  legal 
authority  to  inquire  into  the  cause  or  matter  under  inves- 
tigation, and  in  a  prosecution  therefor  it  is  incumbent  on 
the  State  to  show  that  the  accused  made  the  alleged  false 
statements,  knowing  them  to  be  false,  or  under  circum- 
stances from  which  such  knowledge  may  be  imputed  to 
him.    In  other  words,  that  the  oath  was  willfully  and  cor- 


Dec.  1905.]  State  v.  Smith.  489 

ruptly  false:  Hughes,  Crim.  Proced.  §  1582;  22  Am.  & 
Eng.  Enc.  Law  (2  ed.),  689.  For  this  purpose  the  evi- 
•dence  objected  to  was  clearly  competent.  It  tended  to 
show  that  defendant  knew  the  actual  condition  of  Lane's 
knee,  and  that  the  injury  was  not  caused  by  the  accident 
alleged  to  have  occurred  at  Astoria,  and  his  testimony  to 
that  effect  was  knowingly  false. 

4.  While  the  defendant  was  in  jail  awaiting  trial  the 
sheriff  took  from  him  a  letter  signed  with  his  initials, 
^*J.  S.  S.,"  and  which,  on  its  face,  shows  that  it  had  refer- 
ence to  the  criminal  charge  then  pending  against  him, 
and  advises  the  person  for  whom  it  was  intended,  but  not 
named  therein,  to  *'get  out  of  the  way"  so  he  could  not  be 
found  or  apprehended  by  the  prosecution.  The  letter  was 
admitted  in  evidence  and  read  to  the  jury  without  proof 
that  it  was  written  by  the  defencjant,  and  it  is  insisted 
that  this  was  error.  Whether  the  letter  was  in  defendant's 
handwriting  or  not,  it  was  in  his  possession,  had  reference 
to  the  criminal  charge  then  pending  against  him,  indi- 
cated a  guilty  knowledge,  and,  as  he  is  presumed  to  have 
known  its  contents,  it  was  probably  competent  without 
proof  of  the  handwriting  to  go  to  the  jury  along  with  the 
other  evidence  in  the  case,  for  whatever  it  was  worth : 
Lovelance  v.  State,  12  Lea,  721.  But,  however  that  may  be, 
the  error,  if  any,  was  cured  by  the  subsequent  admission 
of  the  defendant  while  on  the  stand,  as  we  understand  his 
testimony,  that  the  letter  was  in  fact  written  by  him: 
Robinson  v.  Nevada  Bank,  81  Cal.  106  (22  Pac.  478) ;  Peo- 
pie  v.  Goodwin,  132  Cal.  368  (64  Pac.  561). 

5.  The  defendant  gave  some  evidence  of  his  previous 
good  character.  In  its  charge  to  the  jury  the  court  made 
no  reference  to  the  question  of  character,  and  no  exception 
was  taken  to  its  action  in  that  regard,  nor  was  it  previously 
requested  to  instruct  on  that  phase  of  the  case.  After  the 
jury  had  been  deliberating  on  their  verdict  for  a  time  they 


490  State  v.  Smith.  [47  Or. 

came  into  court  for  further  instructions  upon  another 
question,  and  while  there,  defendant's  counsel  called  at- 
tention to  the  failure  to  instruct  as  to  the  effect  of  previous 
good  character,  and  requested  an  instruction  upon  that 
subject.  The  court  refused  to  give  the  instruction  as  asked, 
or  any  instruction  on  that  point,  because  not  presented 
or  requested  until  after  the  jury  had  retired  for  delibera- 
tion, in  violation  of  a  rule  of  court  that  requests  for  in- 
structions should  be  submitted  before  the  argument  of  a 
case  is  begun.  In  charging  the  jury,  the  court  is  required 
by  statute  **to  state  to  them  all  matters  of  law  which  it 
thinks  necessary  for  their  information  in  giving  their 
verdict":  B.  &  C.  Comp.  §  139.  And,  in  doing  so,  it  may 
be  its  duty  to  give  general  instructions  covering  the  law 
of  the  case,  but  it  is  not  thereby  made  its  duty  to  instruct 
the  jury  on  its  own  motion  on  all  collateral  matters. 

6.  If  counsel  desires  instructions  on  any  particular  point, 
he  must  so  request  at  a  seasonable  time,  and  he  cannotsit 
by  while  the  jury  is  being  charged,  and  then  complain  be- 
cause some  particular  instruction  was  not  given  or  point 
covered  :  Page  v.  Finleyy  8  Or.  45;  Kearney  v.  Snodgrass,  12 
Or.  311  (7  Pac.  309);  State  v.  Foot  You,  24  Or.  61  (32  Pac. 
1031,  33  Pac.  537);  State  v.  Magers,  36  Or.  38,  51  (58  Pac. 
892);  Smitson  v.  Southern  Pac,  Co.,  37  Or.  74.  89  (60  Pac. 
907).  And  a  request  for  an  instruction  comes  too  late  after 
the  jury  have  retired  to  deliberate  upon  their  verdict,  even 
if  they  come  into  court  for  additional  instruction  on  some 
other  matter :  State  v.  McNamara,  100  Mo.  100, 107  (13  S.  W. 
938);  Williams  v.  Commonwealth,  85  Va.  609  (8  S.  E.  470); 
Gruhb  V.  State,  117  Ind.  277  (20  N.  E.  257,  725). 

7.  It  was  not  error  in  charging  the  jury  when  they  came 
in  for  further  instructions  that  if  defendant  testified  on  the 
trial  of  the  action  of  Bock  v.  ^s^oria  that  the  plaintiff  "was 
in  bed  three  months,  and  testified  with  a  view  of  the  jury 
giving  damages,  and  that  he  knew  it  to  be  false,  that  would 


Jan.  1906.]  State  v.  Smith.  491 

be  perjury  for  which  he  could  be  convicted,  if  every  other 
statement  he  made  was  true,"  without  including  therein 
the  rule  that  perjury  must  be  proven  by  the  testimony  of 
two  witnesses  or  one  witness  and  corroborating  circum- 
stances. That  matter  had  been  fully  covered  in  the  gen- 
eral charge,  and  it  was  not  necessary  for  the  court  to 
repeat  what  it  had  already  said. 

It  follows  that  the  judgment  must  be  affirmed,  and  it  is 
so  ordered.  Affirmed. 


Decided  30  January,  1906. 

On  Rehearing. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

The  objections  to  the  admission  of  the  testimony  of  Har- 
mon and  Rockey  were  argued  and  considered  together, 
and  as  a  consequence  we  naturally  assumed  that  the  tes- 
timony was  substantially  the  same.  It  seems,  however, 
that  we  were  in  error  in  stating  that  Harmon  testified 
that  while  in  Seattle  Lane  claimed  to  have  received  an 
injury  to  his  '*knee  through  a  defect  in  the  street."  Har- 
mon's testimony  was  that  in  1900,  he  had  a  desk  in  the 
office  of  John  B.  Hart,  a  lawyer  in  Seattle,  and  sometimes 
made  collections  and  served  papers  for  Hart;  that  in  July 
or  August  of  that  year  the  defendant  and  Lane,  who  then 
assumed  the  name  of  Meyers,  came  into  Hart's  office  with 
one  Hughes,  who  was  picking  up  damage  cases,  and  bring- 
ing them  to  Hart  to  try;  that  Hughes  said  to  Hart,  ''Here 
is  the  man  Meyers  I  was  speaking  to  you  about,  who  was 
hurt,  and  here  is  the  witness  Smith";  that  Hart  said  "All 
right,  boys,  come  in,"  and  they  stepped  insidie  and  stood 
there  talking;  that  Lane  and  the  defendant  came  into 
Hart's  office  later,  and  the  witness  believed  they  made  a 
contract  or  drew  up  some  kind  of  an  agreement,  and  a 
claim  or  complaint  was  prepared  and  the  witness  heard 


492  State  v.  Thompson.  [46  Or. 

the  parties  say  that  it  had  been  filed ;  that  Lane  walked 
with  a  cane  at  the  time  he  came  into  the  office ;  and  that 
the  defendant  claimed  to  have  been  with  him  at  the  time  he 
was  hurt.  Although  it  thus  appears  that  Harmon  did  not 
testify  directly  that  Lane's  injury  as  alleged  was  to  his  knee 
•or  from  a  defect  in  the  street,  the  effect  of  his  testimony 
was  that  Lane  pretended  to  be  lame  and  from  a  hurt  or 
injury  received  in  Seattle,  for  which  he  was  making  a 
claim  against  the  city,  and  that  the  defendant  claimed  to 
have  been  with  him  at  the  time  he  was  injured,  and  was 
to  be  a  witness  for  him  in  the  prosecution  of  such  claim. 
This  was  sufficient  to  render  the  evidence  competent  as 
tending  to  show  the  relationship  that  existed  between  Lane 
and  the  defendant,  the  latter's  knowledge  of  the  physical 
•condition  of  the  former,  and  the  character  of  business  in 
which  they  were  engaged. 

The  record  in  relation  to  the  identification  of  the  letter 
taken  by  the  sheriff  from  the  defendant  while  in  jail  is 
somewhat  confusing,  but  a  reexamination  confirms  us  in 
*the  conclusion  stated  in  the  former  opinion. 

Affirmed:  Rehearing  Denied. 


Argued  0  January,  decided  0  February,  1906. 
STATE   v.  THOMPSON. 

84  Pac.  476. 

Carriers— Ticket  Scalpers. 

1.  Beet  ions  1,  2,  3  and  4  of  the  act  of  1905  relating  to  sales  ol  railroad  tickets 
(Laws  1905,  pp.  422,423),  requiring  railroad  owners  to  provide  their  authorised  ticket 

■agents  with  a  certificate  of  authority,  and  making  It  unlawful  for  a  person  not  pos- 
sessed of  such  a  certificate  from  railroad  owners  to  sell  tickets  or  operate  a  ticket 
-ofllce,  prohibits  the  ticket  brokerage  business,  and  restricts  the  sale  of  railroad 
tickets  by  others  than  duly  constituted  agents  of  the  railroad  owners  issuing  the 
same. 

Ticket  Scalpino  — Due  Process  of  Law.* 

2.  The  act  of  1905  concerning  sales  of  railroad  tickets  (Laws  1905,  pp.  422, 423), 
does  not  permit  any  one  to  be  deprived  of  property  without  due  process  of  law, 
as  guaranteed  by  Const  U.  8.  Amend.  XIV,  g  1,  nor  deprive  any  one  of  remedy  by 
due  course  of  law  for  injury  done  him  in  property,  as  guaranteed  by  Const.  Or. 
Art.  1, 1 10,  but  is  a  reasonable  regulation  of  the  use  of  a  certain  kind  of  property. 


Feb.  1906.]  State  v.  Thompson.  493 

Ticket  Scalping —Obligation  of  Contracts  — Ex  Post  Facto  Law. 

8.  Kor  does  that  act  impair  the  obligation  of  any  contract,  as  prohibited  by 
Const.  Or.  Art.  I,  §  21,  since  it  applies  only  to  contracts  made  after  It  went  into 
effect,  and,  being  prospective  In  its  operation,  is  not  ex  post  facto. 

Ticket  Scalping  — Special  Privileges  — Equal  Protection  Laws.* 

4.  Nor  does  that  act  authorize  the  abridgment  of  any  privilege  of  any  citizen, 
as  guaranteed  by  Const,  U.  8.  Amend.  XIV,  §  I,  nor  does  it  grant  to  any  citizen  or 
class  of  citizens  special  privileges,  as  prohibited  by  Const.  Or.  Art.  I,  ^  20. 

Constitutional  Right  to  Scalp  Railroad  Tickets. 

5.  The  right  to  deal  in  railroad  tickets  Is  not  one  of  the  fundamental  rights  or 
American  citizenship  guaranteed  by  Section  1  of  the  Fourteenth  Amendment  to 
the  Constitution  of  the  United  States. 

Ticket  Scalping  —  Interstate  Regulation. 

6.  Nor  does  the  fact  that  the  act  in  question  relates  to  tickets  of  railroads 
without,  as  well  as  to  those  of  railroads  within,  the  State,  render  it  repugnant  to 
Const.  U.  S.  Art.  I,  g  8,  giving  Congress  power  to  regulate  commerce  among  the 
several  states. 

Ticket  Scalping  — Constitutional  Exercise  of  Police  Power. 

7.  Nor  is  it  an  unconstitutional  prohibition  of  a  lawful  calling,  but  rather  a 
lawful  exercise  of  the  police  power  of  the  State,  enacted  in  order  to  protect  trav>^- 
elers  from  fraud. 

From  Multnomah  :    Arthur  L.  Frazer,  Judge. 

Statement  by  Mr.  Justice  Hailey. 

This  is  an  appeal  by  C.  H.  Thompson  from  a  judgment 
of  conviction  for  violating  what  is  commonly  known  as  the- 
anti-scalping  act,  passed  at  the  last  session  of  the  legisla- 
ture, and  found  on  pages  422,  424  of  the  Session  Laws  of 
1905.    The  act  provides  in  substance  as  follows : 

Section  1.  That  it  shall  be  the  duty  of  the  owner  or  own- 
ers or  person  or  persons  operating  a  railroad  to  provide 
every  agent  who  may  be  authorized  to  sell  its  tickets  or 
other  evidence  of  a  right  to  travel  upon  any  railroad  with 
a  certificate  setting  forth  the  authority  of  such  agent  to- 
make  such  sale,  which  certificate  must  be  duly  attested 
and  signed. 

Section  2.  That  every  agent,  person,  firm,  or  corpora- 
tion engaged  in  selling,  issuing,  or  dealing  in  railroad 
passenger  transportation  in  this  State  must  have  a  fixed 


*  Note.— See  note  In  96  Am.  St.  Rep.  828-8ai,  on  Power  of  Slate  to  Control  Sale 
and  Use  of  Passenger  Tickets. 

Read,  also,  note,  Statutes  Against  Ticket  Brokerage,  24  L.  R.  A.  152. 

Reporter. 


494  State  v.  Thompson.  [47  Or. 

place  of  business,  and  keep  the  certificate  mentioned  in 
Section  1  posted  in  a  conspicuous  place  therein. 

Section  3.  That  it  shall  be  unlawful  for  any  person  men- 
tioned in  Section  2,  who  is  not  possessed  of  and  has  not 
posted  the  certificate  mentioned,  to  sell,  exchange,  or 
transfer  or  offer  for  sale,  exchange,  or  transfer,  the  whole 
or  any  part  of  a  railroad  ticket  or  pass  or  other  evidence 
of  a  right  to  travel  on  any  railroad,  whether  the  same  is 
situated  within  or  without  the  limits  of  this  State. 

Section  4.  That  it  shall  be  unlawful  for  any  person 
named  in  Section  2  to  set  up,  establish,  or  maintain,  con- 
duct, or  operate  within  the  State  any  office  or  other  place 
for  the  sale,  exchange,  or  transfer  of  railroad  tickets,  or 
any  part  thereof,  or  passes  or  any  other  evidence  of  a 
right  to  travel  on  any  railroad  within  or  without  the  limits 
of  the  State,  unless  such  person  is  possessed  of  and  has 
posted  the  certificate  above  mentioned. 

Section  5  makes  the  displaying  of  any  sign  bearing  cer- 
tain words,  without  having  posted  the  certificate  as  above 
mentioned,  sufficient  evidence  to  establish  a  prima  facie 
case  against  the  owner,  proprietor,  employee,  or  person  in 
charge  of  said  office  or  place  of  business. 

Section  6  provides  a  penalty  for  the  violation  of  sections 
1,  2,  3  and  4. 

Section  7  requires  the  owner  or  person  operating  any 
railroad  in  this  State  or  any  railroad  doing  business  therein 
to  redeem,  upon  presentation  by  the  lawful  holder  thereof, 
the  whole  or  any  part  of  any  unused  ticket,  and  how  such 
redemption  shall  be  made,  and  the  time  within  which  it 
must  be  presented  for  redemption. 

Section  8  provides  a  penalty  for  refusal,  neglect  or  fail- 
ure to  redeem  as  provided  in  Section  7.         Affirmed. 


Feb.  1906.]  State  «.  Thompson.  495 

For  appellant  there  was  a  brief  with  oral  arguments  by 
Mr,  Martin  Luther  PipeSy  Mr.  Henry  E.  McGinn  and  Mr. 
John  Francis  Logan. 

For  the  State  there  was  a  brief  over  the  names  of  A.  M. 
Crawford,  Attorney  General,  John  Manning,  District  Attor- 
ney, Daniel  James  Malarkey,  James  F.  McElroy,  and  A.  C. 
Spencer,  with  oral  arguments  by  Mr.  Manning  ^nd  Mr. 
Malarkey. 

Mr.  Justice  Hailby  delivered  the  opinion  of  the  court. 

The  only  question  raised  on  this  appeal  is  the  constitu- 
tionality of  the  foregoing  act.  It  is  claimed:  First.  That  it 
violates  the  following  sections  of  Article  I  of  the  state  con- 
stitution: Section  10,  which  declares  that ''every  man  shall 
have  remedy  by  due  course  of  law  for  injury  done  him 
in  person,  property,  or  reputation";  Section  20,  which  de- 
clares that*'No  law  shall  be  passed  granting  to  any  citizen 
or  class  of  citizens,  privileges  or  immunities  which,  upon 
the  same  terms,  shall  not  equally  belong  to  all  citizens"; 
and  Section  21,  which  declares:  "No  ex  post  facto  law,  or 
law  impairing  the  obligations  of  contracts,  shall  ever  be 
passed,  nor  shall  any  law  be  passed,  the  taking  effect  of 
which  shall  be  made  to  depend  upon  any  authority,  except 
as  provided  in  this  constitution."  Second.  It  is  claimed 
that  it  violates  the  Fourteenth  Amendment  to  the  Consti- 
tution of  the  United  States,  which  provides  that  no  state 
shall  deprive  any  person  of  liberty  or  property  without  due 
process  of  law;  and  also  violates  Section  8  of  Article  I  of 
the  Constitution  of  the  United  States,  which  gives  to  Con- 
gress the  power  to  regulate  commerce  among  the  several 
states.  In  this  opinion,  for  brevity  and  clearness,  we  will 
apply  the  word  **ticket"to  all  kinds  of  railroad  transporta- 
tion mentioned  in  the  act,  and  use  the  word  "railroad"  as 
synonymous  with  the  words  in  the  act,  owner  or  operator 
of  any  railroad.    Before  discussing  the  various  contentions 


496  State  v,  Thompson.  [47  Or. 

made  by  the  defendant  as  above  set  forth,  we  deem  it  neces' 
sary  to  ascertain  the  effect  of  this  law,  and  then  will  con- 
sider the  question  whether  or  not  it  violates  any  of  the 
above  provisions  of  our  state  and  federal  constitutions. 

1.  It  is  contended  on  the  part  of  counsel  for  appellant 
that  this  act  does  Qot  prohibit  the  ticket  brokerage  busi- 
ness, but  permits  it  when  done  by  one  having  the  certifi- 
cate provided  for  in  the  act,  and  only  makes  it  a  crime 
when  done  b}''  one  not  holding  such  certificate.  Such  a 
construction  of  the  law^  gives  no  force  to  the  relation  of 
principal  and  agent  necessarily  created  by  the  appointing 
certificate.  The  holder  of  such  certificate  is  the  agent  of 
the  railroad  issuing  the  same,  and  his  acts  in  selling,  issu- 
iYig  and  dealing  in  tickets  are  the  acts  of  his  principal  and 
binding  upon  such  principal,  and  are  not  the  acts  of  such 
agent  in  his  individual  capacity  acting  upon  his  own  ac- 
count. Again,  such  a  construction  also  gives  to  the  agent 
authority  not  warranted  by  the  terms  of  the  act,  by  imput- 
ing to  him  the  right  to  deal  generally  in  all  tickets,  whether 
issued  by  the  railroad  appointing  him  its  agent,  or  some 
other  railroad.  By  the  terms  of  this  act  the  agent  is  ex- 
pressly limited  in  his  authority  to  sell,  issue  or  deal  in 
tickets  issued  by  the  railroad  appointing  him,  and  has  no 
authority  by  virtue  of  a  certificate  from  one  railroad  to 
sell  or  deal  in  the  transportation  of  another  railroad  frora 
which  he  holds  no  certificate.  The  agent,  as  well  as  the 
railroad  appointing  him,  is  limited  to  selling,  issuing  and 
dealing  in  its  tickets,  and  such  agent  must  do  so  as  its  agent,, 
and  cannot  deal  in  tickets  of  another  railroad  for  which 
he  is  not  agent.  The  right  to  issue,  sell  and  deal  in  rail- 
road transportation  is  thus  limited  to  the  railroad  acting 
through  its  agents,  and  it  follows  that  when  done  by  a 
ticket  broker  or  other  person  not  authorized  and  acting  as 
agent  for  the  railroad,  such  transactions  are  unlawful  and 
punishable  under  this  act,  and  thus  prohibited  thereby. 


Feb:  1906.]  State  v.  Thompson.  497 

2.  The  question,  then,  is:  Does  this  law  violate  any  of  the 
constitutional  provisions  above  mentioned?  It  is  argued 
by  counsel  for  the  defendant  that  it  takes  property  with- 
out due  process  of  law.  Defendant  contends  that  the  pur- 
chaser of  a  transferable  ticket  has  a  right  to  do  with  it  as 
he  pleases,  and  that  to  limit  his  right  to  sell  or  otherwise 
dispose  of  it  is  depriving  him  of  his  property  therein  with- 
out due  process  of  law.  It  does  not  deprive  the  purchaser 
of  a  ticket  of  his  property.  It  only  limits  the  manner  in 
which  he  shall  use  such  property.  It  is  one  thing  to  take 
away  the  property  of  a  person,  and  another  to  limit  his 
use  of  such  property.  In  the  case  of  the  purchase  of  a 
railroad  ticket,  the  railroad  sells  it  to  the  purchaser  for  the 
purpose  of  transportation  over  the  lines  of  the  seller,  and 
not  for  barter  or  trade  in  the  market,  and  he  is  not  deprived 
of  his  property  therein  so  long  as  he  has  the  right  to  use 
it  for  the  purpose  for  which  it  was  sold  to  him,  and  the  pre- 
sumption is  that  he  purchased  it  for  the  purpose  for  which 
it  was  sold.  In  addition  to  the  right  to  use  it  for  its  original 
purpose,  the  act  in  question  gives  him  the  additional  right 
to  compel  the  seller  to  redeem  it,  in  the  event  the  purchaser 
fails  to  use  it,  if  presented  for  redemption  within  a  certain 
time. 

3.  It  is  next  contended  that  the  law  violates  the  consti- 
tutional provision  which  prohibits  the  passing  of  any  law 
impairing  the  obligation  of  contracts.  This  contention  is 
not  tenable,  for  the  reason  this  constitutional  provision 
only  prohibits  the  passage  of  laws  impairing  the  obliga- 
tions of  contracts  in  existence  at  the  time  the  law  took 
effect,  and  therefore  it  has  no  application  to  the  case  at  bar, 
the  ticket  in  controversy  having  been  sold  by  the  railroad 
after  this  law  went  into  effect.  'This  law  is  prospective  and 
not  retrospective  in  effect,  and  is  clearly  not  an  ex  post 
facto  law,  as  it  does  not  undertake  to  punish  the  defendant 

47  Or. 82 


498  State  v.  Thompson.  [47  Or. 

for  an  act  done  prior  to  the  time  it  took  effect,  the  doing 
of  which  was  at  that  time  not  a  crime. 

4.  Counsel  for  defendant  argue  that  the  law  grants  priv- 
ileges to  some  persons  not  granted  to  others  upon  the  same 
terms,  and  therefore  violates  Section  20,  Art.  I  of  the  state 
constitution,  and  the  fourteenth  amendment  to  the  federal 
constitution,  and  cites  in  support  of  this  contention  In  re 
Oberg,  21  Or.  406  (28  Pac.  130,  14  L.  K  A.  577),  in  which 
it  was  claimed  that  an  act  providing  "that  no  officer  or 
seaman  of  a  sea-going  vessel  or  ship  shall  be  arrested  or 
imprisoned  for  debt;  and  any  officer  executing  a  process 
of  arrest  for  debt  upon  such  officers  or  seamen  shall  upon 
conviction  ♦  ♦  be  fined,"  etc..  was  in  violation  of  the  fore- 
going section  of  the  constitution,  but  the  act  was  upheld 
by  this  court  on  the  ground  that  since  there  was  no  dis- 
crimination between  persons  of  the  class  of  sailors  men- 
tioned, it  was  not  unconstitutional.  The  court  said :  "All 
sailors  of  a  sea-going  vessel  within  the  prescribed  limits 
are  treated  alike,  and  entitled  to  enjoy  the  privileges  or  im- 
munities granted.  The  act  prescribes  the  same  rule  of 
exemption  to  all  persons  placed  in  the  same  circumstances. 
It  does  not  grant  a  sailor  immunity  from  arrest  for  debt, 
and  refuse  it  to  his  neighbor,  if  they  be  similarly  situated. 
*  ♦  Any  person  who  is  a  sailor  may  enjoy  the  immunity, 
and  any  citizen  desiring  such  immunity  may  have  it,  in 
the  words  of  the  constitution,  'upon  the  same  terms/  by 
becoming  a  sailor."  So  in  the  case  at  bar  the  privilege,  if 
such  it  be  deemed,  of  selling  tickets  under  this  act,  is 
granted  to  railroads  only  to  be  done  by  them  directly  or 
through  their  agents,  and  all  railroads  are  treated  alike  and 
entitled  to  enjoy  the  privileges  or  immunities  granted,  and 
any  one  desiring  to  secure  like  privileges  and  immunities 
can  do  so  by  becoming  one  of  that  class.  The  difficulty 
with  the  argument  on  the  part  of  the  defendant  is  that  it 
fails  to  make  a  distinction  between  the  persons  w^ho,  as 


Feb.  1906.]  State  t;.  Thompson.  499 

agents  of  the  railroads,  act  for  thera,  and  such  persdns 
acting  in  their  individual  capacity  as  third  persons.  If 
the  law  allowed  such  agents  to  act  in  their  individual 
capacity,  and  not  as  agents  solely,  when  possessed  of  the 
certificate  provided  for  in  the  law,  it  would  doubtless  be 
amenable  to  the  objection  raised  by  the  defendant ;  but 
such  is  not  the  case. 

5.  Furthermore,  defendant  has  no  unqualified  right  to 
sell  and  deal  in  the  tickets  of  a  railroad,  and  is  therefore 
not  deprived  of  a  privilege  or  immunity  guaranteed  by 
the  constitution,  as  the  right  claimed  is  not  one  of  the  fun- 
damental rights  guaranteed  by  this  clause  of  the  constitu- 
tion. It  is  argued,  however,  that  the  defendant  cannot 
bring  himself  within  this  class  ;  it  being  contended  that 
the  legislature  has  delegated  to  the  railroad  companies  the 
power  to  classify  the  citizens  of  the  State  and  authorize 
some  of  them  to  conduct  a  business  and  prohibit  all  others 
from  engaging  in  the  same  business.  Here,  again,  the 
representative  capacity  of  the  agent  of  the  railroad  is  con- 
founded with  his  individual  capacity.  It  is  the  railroads 
themselves  that  are  classified,  and  not  the  individuals  who 
may  act  as  agents  for  them.  Prior  to  the  passage  of  this 
act  the  railroads  had  a  right  to  sell  tickets  and  appoint 
agents ;  that  was  one  of  their  privileges,  and  they  were  not 
required  to  furnish  them  with  certificates  showing  such 
agency ;  and  the  act  does  not  take  away  either  privilege, 
but  adds  the  requirement  of  furnishing  such  agents  with 
a  certificate.  All  railroads  dealing  in  tickets  within  the 
State,  like  .**all  seamen  of  sea-going  vessels,*'  are  treated 
alike. 

6.  It  is  next  claimed  that  the  act  interferes  with  the  in- 
ter-state commerce  clause  of  the  federal  constitution,  in 
that  it  relates  to  tickets  of  railroads  without  as  well  as 
within  the  State.  We  cannot  see  the  force  of  this  conten- 
tion.   Under  the  law  the  railroads  can  sell  as  freely  as  they 


500  State  v.  Thompson.  [47  Or. 

could  before.  The  one  additional  requirement  is  that  they 
furnish  their  agents  with  a  certificate  of  authority.  It  does 
not  attempt  to  regulate  commerce  within  the  meaning  of 
that  term  as  interpreted  by  the  Supreme  Court  of  the 
United  States.  It  casts  no  burdens  upon  commerce,  and 
places  no  obstacles  in  its  way.  Its  operation  is  wholly 
within  the  limits  of  the  State  and  within  the  police  power 
of  the  State.  As  stated  in  Nashville,  C.  &  St.  L,  Ry.  Co. 
v.  Alabama,  128  U.  S.  96  (9  Sup.  Ct.  28,  32  L.  Ed.  352), 
''such  legislation  is  not  directed  against  commerce,  and 
only  affects  it  incidentally,  and  therefore  cannot  be  called, 
within  the  meaning  of  the  constitution,  a  regulation  of 
commerce." 

7.  Finally,  it  is  urged  that  the  legislature  has  no  right 
to  prohibit  a  lawful  and  harmless  calling,  and  it  is  urged 
that  the  ticket  brokerage  business  has  always  been  a  law- 
ful and  proper  vocation,  and  may  be  honestly  conducted. 
The  legislature,  however,  has  seen  fit  to  prohibit  the  con- 
duct of  such  business  in  order  to  protect  travelers  from 
fraud,  and  the  facts  alleged  in  this  complaint,  if  true, 
apparently  uphold  the  legislature  in  the  wisdom  of  its 
act.  With  this,  however,  this  court  has  nothing  to  do. 
it  is  within  the  power  of  the  legislature  to  prohibit  the 
doings  of  acts  that  in  themselves  have  been  and  are  legal, 
as,  for  instance,  the  catching  of  salmon  during  certain 
seasons  of  the  year  may  be  prohibited,  the  killing  of  wild 
game  may  be  prohibited,  and  numerous  other  instances 
which  are  found  upon  our  statute  books.  Consequently 
this  contention  is  not  tenable:  City  of  Portland  v.  Meyer, 
32  Or.  368-371  (52  Pac.  21,  67  Am.  St.  Rep.  538);  State 
V.  Schuman,  36  Or.  16-25  (58  Pac.  661,  47  L.  R.  A.  153 
78  Am.  St.  Rep.  754). 

We  deem  it  unnecessary  to  discuss  further  the  ques- 
tions argued  upon  this  appeal,  for  the  reason  that  legis- 
lation similar  to  the  act  in  question  has  been  adopted  in 


Feb.  190G.]  State  v.  Thompson.  501 

many  of  our  sister  states,  and  its  constitutionality  has 
been  fully  sustained  by  all  of  their  highest  courts,  with 
the  single  exception  of  the  State  of  New  York,  where  two 
dissenting  opinions  were  rendered  that  agree  with  the 
following  decisions,  which  fully  discuss  all  questions 
raised  in  the  case  at  bar,  and  all  of  which  hold  it  to  be 
within  the  police  power  of  a  State,  through  its  legislature, 
to  enact  such  a  law  as  the  one  in  question  :  Fry  v.  Stale,  63 
Ind.  552  (30  Am.  Rep.  238);  Burdick  v.  People,  149  111.600 
(36  N.  E. 948, 24  L.  R.  A.  152,  41  Am.  St. Rep.  329);  State  v. 
Corbett,  57  Minn.  345  (59  N.W.317,  24  L.R.A.498);  Com- 
monwealth  v.  Keary,  198  Pa.  St.  500  (48  Atl.  472);  Jannin 
V.  State,  42Tex.Cr.  R.  631(51  S.W.112fi,  96  Am.  St.  Rep. 
821);  State  v.  Bernheim,  19  Mont.  512  (49  Pac.  441) ;  In  re 
O'NeilU  41  Wash.  174  (83  Pac.  104,  3  L.  R.  A.,  N.  S.,  415); 
State  V.  Manford  (Minn.),  106  N.  W.  907.  The  only  courts 
holding  adversely  to  the  above  decisions  are  the  courts  of 
New  York,  which  follow  the  opinion  of  Chief  Justice  Par- 
ker, of  the  New  York  Court  of  Appeals,  in  the  case  of 
People  ex  rel  v.  Warden  of  Prison,  157  N.  Y.  116  (51  N.  E. 
1006,  43  L.  R.  A.' 264,  68  Am.  St.  Rep.  763);  in  which 
case  the  decision  is  largely  based  upon  two  grounds: 
First,  that  the  New  York  statute  conferred  authority  upon 
an  agent  of-  one  railroad  to  sell  the  tickets  of  any  other 
railroad,  which  the  statute  in  this  State  does  not  do,  it  ex- 
pressly limiting  its  authority  to  the  sale  of  the  tickets  of 
the  road  appointing  him  ;  and,  second,  on  the  ground 
that  the  act  was  a  violation  of  the  liberty  of  the  citizens 
guaranteed  him  by  the  constitution  to  engage  in  ticket 
brokerage,  which  the  State  could  not  take  away  by  the  ex- 
ercise of  its  police  power.  We  are,  however,  unable  to 
agree  with  the  logic  or  the  reasoning  of  that  opinion,  but 
prefer  to  accept  the  reasoning  and  logic  of  the  two  dis- 
senting opinions  written  in  the  same  case,  which  have 
been  practically  adapted  by  the  cases  above  mentioned. 

We  therefore  hold  the  act  valid,  and  the  judgment  of 
the  lower  court  is  affirmed.  Affirmed. 


502  Springer  v,  Jenkins.  [47  Or. 


Decided  6  Febraary,  1906. 

SPBINGEB  V,  JENKINS. 

84  Pac.  479. 

Chattel  Mortgages— Conversion  of  Chattels  by  Mortgagee— Action^ 
FOR  Conversion— Answer  in  Mitigation  — Necessity. 

1.  A  mortgagee,  sued  for  theconvenslou  of  the  chattels  mortgaged  because  of  his 
Irregularly  foreclosing  the  mortage  la  good  faith,  the  property  having  been  bought 
by  another,  cannot  invoke  the  rule  that  the  mortgagor's  measure  of  damages  is 
the  difference  between  the  value  of  the  chattels  and  the  amountof  the  debt,  unless 
he  pleads  the  amount  due  in  mitigation  of  damages,  since  the  defense  in  mitiga- 
tion is  in  effect  a  plea  in  confession  and  avoidance,  which,  in  order  to  be  available, 
must  be  specially  pleaded,  under  B.  &  C.  Comp.  1 73,  declaring  that  an  answer  shall 
contain  a  denial  of  each  allegation  of  the  complaint  controverted  by  defendant 
and  a  statement  of  new  matter  constituting  a  defense. 

Matter  Provable  Under  Denials. 

2.  Under  the  Oregon  practice  a  defendant  can  prove  under  a  denial  of  materia) 
allegations  only  such  facts  as  tend  u>  disprove  the  cause  of  action  ;  but  other  mat- 
ter in  the  nature  of  avoidance,  as,  a  claim  of  mitigation  of  damages,  must  be 
specially  pleaded. 

Conversion  by  Mortgagee— Plea  of  Mitigation  of  Damage. 

8.  The  answer  of  a  mortgagee  sued  for  conversion  of  the  chattels  mortgaged,  in 
consequence  of  his.  irregularly  foreclosing  the  mortgage,  which  does  not  show 
that  he  was  the  owner  of  the  mortgage  debt  at  the  time  of  the  alleged  conversion, 
that  any  part  of  the  debt  was  unpaid,  and  that  the  chattels  sold  under  the  fores 
closure  sale  were  those  described  in  the  complaint,  is  insufficient  as  an  answer  in 
mitigation,  so  as  to  reduce  the  mortgagor's  recovery  to  the  dlfXterence  between  the 
value  of  the  chattels  and  the  amount  of  the  debt. 

Aggravated  Damages  — Particulars  of  Plea. 

4.  When  aggravated  damages  are  claimed  under  a  statute,  the  statute  should 
be  recited  iu  the  complaint  or  the  claim  should  be  stated  as  being  made  under  the 
terms  of  the  statute. 

Trover— Claim  by  Administrator  of  Double  Damages  for  Conver- 
sion OF  Decedent's  Estate  — Pleading. 

5.  An  administrator  proceeding  under  Section  1152,  B.  &  C.  Comp.,  for  double 
damages  for  converting  property  of  the  decedent,  must  plead  that  his  claim  is 
made  under  that  statute,  orlt  will  be  considered  that  he  is  claiming  under  Section 
885,  providing  for  recovering  the  value  of  chattels  of  a  decedent  converted  and  the 
value  of  the  resulting  injury. 

Idem  — Proof  of  Bad  Faith  —  Necessity. 

6.  An  administrator,  in  order  to  recover  double  damages  for  the  conversion  of 
property  of  the  decedent,  as  authorized  by  Section  1152.  B.  &  C.  Comp.,  providing 
that  a  person  converting  to  his  own  use  property  of  a  decedent  shall  be  liable  to 
double  damages,  must  show  that  defendant  acted  in  bad  faith ;  and  proof  that  he 
was  mistaken  In  his  rights  and  was  ill  advised  is  insufficient. 

From  Harney:   George  E.  Davis,  Judge. 
Statement  by  Mr.  Chief  Justice  Bean. 
This  is  an  action  of  trover  by  L.  B.  Springer  against 
Thomas  E.  Jenkins  and  his  brother  for  the  alleged  conver- 


Feb.  1906.]  Springer  v.  Jenkins.  503 

sion  by  defendants  of  certain  sheep  belonging  to  the  estate 
of  Frank  Martin,  deceased.  The  complaint  alleges  that 
Martin  died  in  October,  1903,  owning  and  in  possession  of 
1,600  head  of  stock  and  sheep,  "branded  5  on  wool  on  back, 
and  marked  with  different  earmarks,"  of  the  value  of 
$3,500;  that  soon  after  his  death,  and  before  the  appoint- 
ment of  an  administrator  of  his  estate,  the  defendants, 
without  right  or  authority,  took  possession  of  such  sheep 
and  converted  the  same  to  their  own  use,  by  selling  them 
and  retaining  the  proceeds,  to  the  damage  of  Martin's 
estate  in  the  sum  of  $3,500;  that  after  the  appointment  of 
plaintiff  as  administrator,  and  before  the  commencement 
of  this  action,  he  demanded  of  defendants  the  possession 
of  the  sheep  or  the  value  thereof.  The  prayer  is  for  judg- 
ment of  $7,000,  double  the  amount  of  damages  alleged  to 
have  been  sustained  by  the  converson. 

The  defendants  for  answer  admit  the  death  of  Martin 
and  the  appointment  of  the  plaintiff  as  administrator  of 
his  estate,  but  deny  the  number  and  value  of  the  sheep 
and  the  conversion  thereof  as  alleged.  For  a  further  and 
separate  defense  they  aver  that  on  November  1,  1902, 
Martin  made,  executed  and  delivered  to  them  his  prom- 
issory note,  **wherein  and  whereby  he  promised  and 
agreed  to  pay  to  the  defendants  the  sum  of  $778,  with  in- 
terest from  date  at  the  rate  of  10  per  cent  per  annum,'* 
and  to  secure  the  payment  thereof  at  the  same  time  exe- 
cuted and  delivered  to  them  a  chattel  mortgage  on  **985 
ewes,  branded  figure  5  on  back,"  a  copy  of  which  mort- 
gage is  annexed  to  and  made  a  part  of  the  answer ;  that 
subsequent  to  the  execution  of  the  mortgage  and  prior  to 
the day  of  November,  1903,  Martin  and  the  defend- 
ants orally  agreed  that  the  mortgage  should  stand  for  and 
cover  any  future  advances  which  defendants  might  make 
to  him,  and  that  interest  on  all  sums  secured  by  the  mort- 
gage should  be  due  and  payable  annually  ;  that  in  pursu- 


504  Springer  v,  Jenkins.  [47  Or. 

ance  of  such  agreement  defendants  did,  prior  to  the  date 

named,  advance  to  Martin  $ ,  all  of  which  had  been 

repaid,  except  $ ;  that  on  the day  of  November, 

1903,  default  having  been  made  in  the  payment  of  the 
interest  due  oil  the  promissory  note  mentioned  in  the 
mortgage,  and  Martin  having  gone  away  from  the  county 
and  remained  away  an  unusual  length  of  time  without 
making  provision  for  the  care  or  maintenance  of  the  sheep, 
and  the  herder  having  seized  and  attempted  to  sell  thera 
under  a  herder's  lien,  the  defendants,  acting  under  advice 
of  counsel  and  considering  the  conditions  of  the  mortgage 
broken,  proceeded  to  foreclose  the  same  by  requesting  the 
sheriff  of  the  county  to  sell  the  property  therein  described 
in  accordance  with  the  provisions  of  law  in  respect  thereto; 
that  pursuant  to  such  request  the  sheriff,  after  due  adver- 
tisement, sold  the  property  at  public  vendue  to  the  highest 
bidder  for  cash ;  that  such  sale  was  conducted  in  all  re- 
spects according  to  law,  and  the  property  was  purchased 
by  one  Thomas  Tiirnbull,  who  is  now  and  since  that  date 
has  been  the  lawful  owner  of  the  same ;  that  since  the  date 
of  the  sale  the  defendants  have  not  been  in  possession  of 
the  property  or  the  proceeds  thereof,  except  sufficient  to 
satisfy  the  indebtedness  due  them  and  secured  by  the 
mortgage. 

The  reply  admits  the  execution  of  the  chattel  mortgage 
and  promissory  note  therein  referred  to,  the  rate  of  inter- 
est thereon,  the  recording  of  the  mortgage,  and  the  sale 
of  the  property  in  November,  1903,  as  alleged,  but  denies 
all  the  other  allegations  of  the  answer.  Upon  these  plead- 
ings the  cause  was  tried,  and  resulted  in  a  verdict  in  favor 
of  the  plaintiff  for  $1,704.99.  Upon  motion  of  the  plaintiff 
a  judgment  was  rendered  in  his  favor  and  against  the 
defendants  for  $3,409.98,  being  double  the  amount  of  dam- 
ages so  assessed.    The  defendants  appeal.       Reversed. 


Feb.  1906.]  Springer  v.  Jenkins.  505 

For  appellants  there  was  a  brief  over  the  name  of  Biggs 
<fr  Biggs,  with  an  oral  argument  by  Mr.  Dalton  Biggs, 

For  respondent  there  was  a  brief  and  an  oral  argument 
by  Mr.  William  Rufus  King. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

The  jury  found  from  the  testimony,  under  the  law  as 
given  to  them  by  the  court,  that  the  foreclosure  of  the 
chattel  mortgage  by  the  defendants  was  premature,  be- 
cause the  debt  secured  thereby  was  not  then  due  and  none 
of  its  provisions  had  been  broken  at  the  time,  and  there- 
fore the  foreclosure  proceedings  were  irregular  and  void 
and  did  not  constitute  a  defense  to  this  action.  There 
are  no  errors  predicated  upon  this  branch  of  the  case. 
The  only  questions  necessary  for  us  to  consider  arise  on 
the  rulings  of  the  trial  court  that  the  defendants  could 
not  show  the  amount  of  the  mortgage  debt  in  mitigation 
of  damages,  and  in  entering  judgment  for  double  the 
amount  of  damages  assessed  by  the  jury. 

1.  There  is  a  line  of  authorities  holding  that,  if  a  chat- 
tel mortgage  is  irregularly  foreclosed  in  good  faith  and 
the  property  sold  to  another  than  the  mortgagee,  the 
mortgagor  may  treat  the  transaction  as  a  conversion  of 
the  property  by  the  mortgagee  and  sue  accordingly,  and 
in  such  case  the  measure  of  damages  i§  the  difference  be- 
tween the  value  of  the  property  at  the  time  of  the  con- 
version and  the  amount  of  the  mortgage  debt;  2  Cobbey, 
Chattel  Mtgs.  §  1036;  2  Sedgwick,  Meas.  Dam.  (7  ed.)  p. 
391 ;  Burton  v.  Randall,  4  Kan.  App.  593  (46  Pac.  326); 
Cushing  v.  Seymour,  30  Minn.  301  (15  N.  W.  249);  Torp 
V.  GulsetK  37  Minn.  135  (33  N.  W.  550);  Powell  v.  Gag^ 
non,  52  Minn.  232  (53  N.  W.  1148);  Bryan  v.  Baldwin, 
52  N.  Y.  232.  But  the  defendants  cannot  invoke  this 
rule,  because  they  have  not  pleaded  the  amount  due  on 
the  mortgage  in  mitigation  of  damages.     At  common  law 


506  Springer  v.  Jenkins.  [47  Or. 

a  defendant  was  entitled  to  give  in  evidence  under  the 
general  issue  any  matter  constituting  a  valid  defense,  and 
following  this  rule,  some  of  the  cases  cited  hold  that  in 
an  action  of  trover  a  defendant  may  give  facts  in  mitiga- 
tion of  damages  without  pleading  them ;  but  our  statute 
has  changed  the  common-law  rule  and  substituted  for  the 
general  issue  an  answer  which  must  contain  a  general  or 
specific  denial  of  the  material  allegations  of  the  complaint 
intended  to  be  controverted  and  a  statement  of  any  new 
matter  constituting  a  defense  or  counter  claim  :  B.  &  C. 
Comp.  §  73. 

2.  Under  this  statute  the  defendant  can  only  put  in 
evidence  under  the  denials  such  facts  as  go  to  disprove 
the  plaintiff's  cause  of  action.  If  he  intends  to  rest  his 
defense  upon  any  other  matter,  such  as  payment,  estop- 
pel, former  adjudication,  legality  of  consideration,  justifi- 
cation, contributory  negligence,  the  negligence  of  a  fellow- 
servant  and  the  like,  it  must  be  pleaded :  Heatherly  v. 
HadUy,  2  Or.  269 ;  Rugh  v.  Ottenheirner,  6  Or.  231  (25  Am. 
Rep.  513);  Konigsberger  v.  Harvey,  12  Or.  286  (17  Pac. 
114);  Buchtel  v.  Evans,  21  Or.  309  (23  Pac.  67);  Johnston 
V.  Oregon  Short  Line  Ry.  Co.,  23  Or.  94  (31  Pac.  283); 
Jameson  V.  Coldwell,  23  Or.  144  (31  Pac.  279);  Clark  \. 
Wick,  25  Or.  446  (36  Pac.  165);  Duffv,  Willamette  Steel 
Works,  45  Or.  479  (78  Pac.  363,  668).  And  so  with  the 
defense  of  mitigation  of  damages.  Such  a  defense  is  in 
effect  a  plea  in  confession  and  avoidance.  It  amounts  to 
an  admission  of  the  cause  of  action  alleged  in  the  com- 
plaint, but  asserts  that  plaintiff  cannot  recover  the  entire 
damages  sustained  by  him  on  account  thereof,  because  of 
extraneous  matter  which  does  not  contradict  any  fact 
necessary  to  be  established  by  the  plaintiff  to  authorize  a 
recovery.  Now,  when  we  examine  the  answer  in  this 
case,  we  find  that  it  attempts  to  set  up  a  chattel  mortgage 
and  the  foreclosure  thereof  as  a  complete  defense  or  bar 


Feb.  1906.]  Springer  v.  Jenkins.  507 

to  the  action.  It  may  be  doubted,  therefore,  whether  it 
could  under  any  circumstances  be  treated  as  a  partial  de- 
fense by  way  of  mitigation  of  damages :  Webb  v.  Nicker- 
son,  11  Or.  382  (4  Pac.  1126). 

3.  But,  waiving  this  point,  the  answer  does  not  con- 
tain facts  sufficient  to  constitute  such  a  defense.  It  is  not 
alleged  that  the  defendants  were  the  owners  of  the  mort- 
gage d«btat  the  time  of  the  alleged  conversion,  nor  that 
any  part  of  the  debt  secured  by  such  mortgage  was  un- 
paid, nor  that  the  sheep  described  in  the  mortgage  were 
the  same  sheep  mentioned  in  the  complaint.  These  are 
all  matters  of  essential  importance  in  a  plea  in  mitiga- 
tion of  damages.  Without  them  the  plaintiff  would  not 
be  informed  of  the  facts  intended  to  be  relied  upon  as  a 
defense  and  could  not  be  prepared  to  meet  them  on  the 
trial.  There  was  no  error,  therefore,  in  the  ruling  com- 
plained of. 

4.  The  remaining  assignment  of  error  is  predicated 
upon  the  action  of  the  court  in  rendering  judgment 
against  the  defendants  for  double  the  amount  of  damages 
as  found  by  the  jury.  This  judgment  was  based  on  Sec- 
tion 1152  of  the  statute  which  provides : 

**If  any  person  shall,  before  administration  is  granted^ 
embezzle,  alien,  or  in  any  way  convert  to  his  own  use  any 
of  the  property  of  a  deceased  person,  he  is  liable  to  the 
executor  or  administrator  in  double  the  amount  of  dam- 
ages which  may  be  assessed  therefor." 

If  the  rule  governing  actions  under  statutes  giving  ag- 
gravated damages  is  to  be  applied  to  this  section,  the 
complaint  does  not  state  facts  sufficient  to  entitle  plain- 
tiff to  a  recovery  thereunder,  because  it  does  not  recite 
the  statute  nor  in  any  way  allude  to  it.  The  general  rule 
is  that  when  aggravated  damages  are  given  by  a  statute, 
**the  demand  for  such  damages  must  be  expressly  in- 
serted in  the  declaration,  which  must  either   recite  the 


-508  Springer  v.  Jenkins.  [47  Or. 

statute  or  conclude  to  the  damage  of  the  plaintiff  against 
the  form  of  the  statute":  Chipman  v.  Enteric,  5  Cal.  239 ; 
Ntff  V.  Pennoyer,  3  Saw.  495  (Fed.  Cas.  No.  10,085);  Liv- 
ingston  v.  Planter,  1  Cow.  175. 

5.  There  are  two  sections  of  the  statute  providing  for 
■actions  by  an  executor  or  administrator  against  persons 
who  intermeddle  with  the  property  of  a  decedent:  Sec- 
tions 385  and  1152.  By  the  former  the  action  is  "  for  the 
value  of  all  property  so  taken  or  received,  and  for  all  in- 
jury caused  by  his  [defendant's]  interference  with  the 
•estate  of  the  deceased'';  and  by  the  latter  the  defendant 
is  made  liable  for  double  the  amount  of  damages  which 
may  be  assessed  against  him.  It  is  but  reasonable,  there- 
fore, that,  if  an  executor  or  administrator  desires  to  pro- 
ceed under  Section  1152,  he  should  so  state  in  his  com- 
plaint, so  that  the  defendant  may  be  advised  of  that  fact; 
and,  if  he  does  not,  the  action  should  be  treated  as  brought 
under  Section  385,  to  recover  the  actual  damages  sus- 
tained. 

6.  But,  however  this  may  be,  we  are  of  the  opinion  that 
Section  1152  does  not  apply  to  a  case  where  the  defend- 
ant acted  in  good  faith  under  color  of  legal,  right,  sup- 
posing he  had  title  to  the  property  or  a  right  to  enforce  a 
lien  thereon,  though  he  should  subsequently  be  unable  to 
•establish  such  title  or  right.  The  statute  is  highly  penal 
in  its  consequences,  and  was  evidently  intended  to  pun- 
ish those  who  might  wrongfully  or  in  bad  faith  interfere 
with,  convprt  to  their  own  use,  or  dispose  of  the  property 
of  a  deceased  person,  by  mulcting  them  in  double  dam- 
ages; and  its  language  should,  we  think,  be  so  construed. 
To  subject  a  defendant  to  the  penalty  given  by  the  stat- 
ute, it  should  appear  that  he  was  an  intermeddler,  and 
acted  from  wrong  motives  or  in  bad  faith;  otherwise,  the 
executor  or  administrator  should  be  satisfied  with  the 
ordinary  remedies  given  him  by  law  :  Roys  v.  Roys,  13  Vt. 


Feb.  1906.]  State  v.  Conklin.  509 

543;  Batch/elder  v.  Tenney,  27  Vt.  578.  It  is  not  alleged, 
nor  does  it  appear,  that  the  defendants  did  not  act  in  the 
utmost  good  faith  in  attempting  to  foreclose  their  mort- 
gage. They  may  have  been  ill  advised,  or  may  have  mis- 
taken their  rights;  but,  until  it  is  made  to  appear  that 
they  acted  from  wrongful  motives  or  in  bad  faith,  the 
plaintiff  is  not  entitled  to  recover  double  damages  from 
them. 

The  judgment  of  the  court  below  will  therefore  be  re- 
versed, and  the  cause  remanded  for  such  further  proceed- 
ings as  may  be  proper,  not  inconsistent  with  this  opinion. 

Reversed. 


I>i!cided  20  February,  1«0«. 
STATE  V,  COmLIN. 
M  Pac.  482. 

Motion  to  Strikk  Out  Part  or  ak  Information. 

1.  In  view  of  Section  1865,  B.  <ft  C.  Com  p.,  providing  that  the  only  pleadings 
by  a  defendant  in  a  criminal  case  shall  be  a  plea  and  a  demurrer,  a  motion  to 
strike  out  part  of  an  information  is  not  a  proper  proceeding  under  the  Oregon 
practice. 

Criminal  Libel— Evidence  of  Rumor8— Harmless  Error. 

2.  In  view  of  Section  2170,  B.  <&  C.  Corap.,  relating  to  showing  the  truth  of  a 
publication  In  criminal  actions  for  libel,  it  is  doubtful  whether  evidence  of 
rumors  corroborative  of  the  alleged  defamatory  matter  is  admissible ;  but  in  the 
present  case  the  error,  if  any,  was  harmless. 

Criminal  Libel  — Excluding  Evidence  of  Rumors. 

3.  Where,  on  appeal  from  a  convlciion  for  libel,  the  evidence  is  not  all  in  the 
record,  the  exclusion  of  evidence  as  to  where  defendant  learned  the  facts  coii> 
tained  In  the  publication  could  not  be  regarded  as  prejudicial  error,  since,  if  the 
truth  of  the  publication  had  been  established,  the  evidence  was  unnecessary 
and,  if  not,  it  was  incompetent. 

Criminal  Libbl  —  Accusation  of  Crime  is  Libelous. 

4.  A  published  statement  that  a  woman  employed  a  man  to  collect  some 
money,  and  that  after  collecting  it  he  failed  to  turn  It  over  to  her,  finally  admit- 
ting that  he  had  used  it  and  oflTering  to  give  his  note  for  it,  charges  the  crime  of 
embezzlement,  under  B.  A  C.  Com  p.,  1 1805,  and  is  actionable  per  se. 

Trial— Duty  to  Declare  Legal  Effect  of  Unambiguous  Language- 

5.  It  is  the  duty  of  the  trial  Judge  to  declare  to  the  Jury  the  legal  effect  of 
unambiguous  language. 

From  Josephine:    Hikro  K.  Hanna,  Judge. 


510  State  v.  Conklin.  [47  Or. 

Arthur  Conklin  was  convicted  of  a  criminal  libel  and 
sentenced  to  pay  a  fine  of  $250  and  costs. 

Affirmed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr.  H.  D.  Norton. 

For  respondent  there  was  a  brief  over  the  names  of 
Andrew  Murray  Crawford,  Attorney  General,  and  A.  E, 
Reames,  District  Attorney,  with  an  oral  argument  by  Mr. 
Crawford. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

The  defendant,  Arthur  Conklin,  w^as  informed  against, 
tried,  and  convicted  of  the  crime  of  willfully  publishing 
false  and  scandalous  printed  matter  of  and  concerning 
another,  with  intent  to  injure  and  defame  such  person, 
and,  having  been  sentenced  to  pay  a  fine,  he  appeals.  The 
facts  constituting  the  alleged  crime  are  charged  as  follows; 

*'That  the  said  Arthur  Conklin  on,  to  wit,  the  4th  day 
of  June,  1904,  in  the  County  of  Josephine,  State  of  Oregon, 
then  and  there  being,  did  then  and  there  willfully  publish 
in  a  newspaper  called  Oregon  Mining  Journal,  the  follow- 
ing false  and  scandalous  matter  of  and  concerning  R.  G. 
Smith,  to  wit: 

'  To  illustrate  a  little  as  to  the  character  and  integrity  of 
R.  G.  Smith,  we  may  cite  one  case  standing  on  the  judg- 
ment records  to-day,  the  history  of  which  shows  that  an  old 
lady,  by  name  Mrs.  Sarah  E.  Lewis,  a  widow,  had  Smith 
(thereby  meaning  the  said  R.  G.  Smith)  collect  some  money 
and  after  collecting  it  he  (meaning  the  said  R.  G.  Smith) 
failed  to  turn  it  over  to  her  (meaning  the  said  Sarah  E. 
Lewis).  He  (meaning  the  said  R.  G.  Smith)  finally  ad- 
mitted that  he  had  used  it  and  would  give  her  his  notes  for 
the  same.'  (Thereby  meaning  that  the  said  R.  G.  Smith 
had  feloniously  appropriated  said  money  of  the  said  Sarah 
E.  Lewis  to  his,  the  said  R.  G.  Smith's,  own  use.) 

Said  published  matter  then  and  there  being  false  and 
scandalous,  and  said  publication  then  and  there  made  by 
said  Arthur  Conklin  with  the  intent  to  injure  and  defame 


Feb.  1906.]  State  v.  Conklin.  511 

said  R.  6.  Smith,  contrary  to  the  statutes  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of 
the  State  of  Oregon." 

1.  It  is  contended  by  defendant's  counsel  that  an  error 
was  committed  in  denying  his  motion  to  strike  from  the 
information  the  innuendoes  hereinbefore  included  in  pa- 
renthesis, to  which  action  of  the  court  an  exception  was 
taken.  Our  statute  regulating  criminal  procedure  pro- 
vides that  the  only  pleading  on  the  part  of  the  defendant 
is  either  a  demurrer  or  a  plea  :  B.  &  C.  Comp.  §  1355.  In- 
voking the  rule  that  the  inclusion  of  a  prescribed  method 
of  practice  is  the  exclusion  of  all  others,  a  motion  is  not 
the  proper  means  of  challenging  the  suflBciency  of  an  in- 
dictment or  information,  and  hence  no  error  was  com- 
mitted as  alleged. 

2.  Defendant's  counsel,  in  his  opening  statement,  said 
to  the  jury  that  he  expected  to  prove  that  the  facts  alleged 
to  be  libelous  were  current  rumor ;  that  the  defendant  had 
been  informed  that  they  were  true,  and,  believing  sucl^  re- 
port, he  had  published  the  article  in  question.  The  prose- 
cuting attorney  having  objected  to  such  statement,  the 
court  held  that  proof  of  common  report  would  not  justify 
the  publication  of  a  defamatory  article,  and  referring  to 
defendant's  counsel,  also  observed : 

"I  think  that  whenever  you  have  shown  the  facts  to  be 
true,  then  you  may  show  every  fact  that  would  tend  to  ex- 
cuse or  justify,  because  under  our  law  it  may  be  punished 
although  true,  because  our  law,  as  it  stands,  is  designed  to 
throw  a  check  upon  the  publication  of  such  articles  as  this; 
because  it  engenders  bad  feeling  in  a  community  and  may 
lead  to  further  violence,  and  therefore,  whenever  anything 
is  published  of  a  man  or  of  his  family,  which  is  defama- 
tory and  of  this  nature,  the  law  requires  the  district  attor- 
ney to  prosecute  the  case,  whether  the  party  injured  seeks 
to  have  it  done  or  not.  I  suppose  you  would  have  to  show 
the  fact  that  the  article  was  true,  before  you  would  be 
allowed  to  show  the  rumors.    I  do  not  think  it  would  be 


512  State  v.  Conklin.  [47  Or. 

proper  to  say  to  the  jury  that  you  expect  to  prove  these 
rumors,  because  it  would  be  on  their  minds,  and  might  be 
difficult  to  lay  aside  on  the  trial  of  the  case." 

Whether  or  not  the  rule  originally  prevailed  by  the  an- 
cient law  of  England  that  the  truth  of  the  matter  published 
could  be  given  in  defense  in  prosecutions  for  criminal  libel, 
but  was  changed  by  the  Star  Chamber,  is  not  necessary  to 
inquire,  though  Mr.  Chief  Justice  Parker,  in  Common- 
wealth V.  Blanding,  3  Pick.  304  (15  Am.  Dec.  214),  admit- 
tingcertain  privileged  communications  as  exceptions,  says: 
"That  by  the  common  law  always,  so  far  as  it  can  be  traced 
back,  the  doctrine  as  now  mentioned  in  regard  to  exclud- 
ing the  truth  of  the  matters  alleged,  as  a  defense  in  a  public 
prosecution  for  libel,  with  the  exception  stated,  has  been 
recognized  and  enforced,  w^ill  be  denied  by  no  lawyer  who 
has  thoroughly  examined  the  subject."  Hawkins,  in  his 
Pleas  of  the  Crown  (volume  1,  p.  543),  arguing  that  the 
publication  of  a  libel  tended  to  breaches  of  the  peace,  says: 
'*And  from  the  same  grpund,  it  further  doth  appear  that 
it  is  far  from  being  a  justification  of  a  libel,  that  the  con- 
tents thereof  are  true,  or  that  the  person  upon  whom  it  is 
made  had  a  bad  reputation  ;  since  the  greater  appearance 
there  is  of  truth,  in  any  malicious  invective,  so  much  the 
more  provoking  it  is."  In  a  note  to  Townsend  on  Slander 
&  Libel  (4  ed.),  §  211,  a  stanza  from  Burns  and  another 
from  Moore  are  quoted  to  illustrate  the  phrase,  '*The 
greater  the  truth  the  greater  the  libel."  Blackstone,  in  his 
Commentaries  on  the  Laws  of  England  (book  3,  *125),in 
discussing;  this  subject,  observes:  **With  regard  to  libels 
in  general,  there  are,  as  in  many  other  cases,  two  remedies ; 
one  by  indictment,  and  another  by  action.  The  former  for 
the  public  offense,  for  every  libel  has  a  tendency  to  the 
breach  of  the  peace,  by  provoking  the  person  libeled  to 
break  it,  which  offense  is  the  same  (in  point  of  law)  whether 
the  matter  contained  be  true  or  false;  and  therefore  the 


Feb.  1906.]  State  v.  Conklin.  513 

defendant,  on  an  indictment  for  publishing  a  libel,  is  not 
allowed  to  allege  the  truth  of  it  by  way  of  justification." 
See,  also,  18  Am.  &  Eng.  Enc.  Law  (2  ed.),  1068. 

In  People  v.  Croswell,  3  Johns.  Cas.  (N.  Y.)  337,  the  de- 
fen<lant  was  indicted  for  libel  committed  by  publishing  of 
and  concerning  President  Jefferson  certain  alleged  defam- 
atory matter.  A  postponement  of  the  trial  was  asked,  to 
enable  the  defendant  to  secure  the  testimony  of  a  witness 
by  whom,  he  stated  in  his  affidavit  for  a  continuance,  he 
expected  to  prove  the  truth  of  the  charge.  The  motion 
having  been  denied,  the  defendant  was  tried  and  convicted, 
and  appealed.  In  the  supreme  court,  his  counsel,  with 
whom  was  Hamilton,  contended  that,  pursuant  to  the  an- 
cient law  of  England,  it  was  originally  held  that  the  truth 
of  the  charge  was  admissible  in  evidence  in  an  action  for 
criminal  libel,  and  that,  though  such  rule  was  for  a  time 
abrogated  by  order  of  the  Star  Chamber,  it  ceased  to  exist 
with  the  destruction  of  the  pernicious  power  that  invoked 
it,  and,  as  the  doctrine  of  the  common  law  was  brought  by 
the  colonists  to  the  shores  of  North  America,  it  prevailed 
in  New  York,  and  hence  an  error  was  committed  in  refus- 
ing to  postpone  the  trial  to  enable  the  defendant  to  secure 
the  desired  testimony.  Mr.  Chief  Justice  Lewis,  on  the 
last  day  of  the  May  term,  1804,  observed  that,  the  court 
being  equally  divided  in  opinion  in  respect  to  the  question 
presented,  a  new  trial  was  therefore  denied.  No  judgment 
of  affirmance,  however,  was  given.  A  bill  concerning  libels 
was  passed  by  the  legislative  assembly  of  New  York  and 
became  a  law  April  6,  1805.  Section  2  of  such  act  is  as 
follows:  **And  be  it  further  declared  and  enacted,  that  in 
every  prosecution  for  writing  or  publishing  any  libel,  it 
shall  be  lawful  for  the  defendant,  upon  the  trial  of  the 
cause,  to  give  in  evidence,  in  his  defense,  the  truth  of  the 
matter  contained  in  the  publication  charged  as  libelous : 

47  Or. 38 


514  State  v.  Conklin.  [47  Or. 

provided  always,  that  such  evidence  shall  not  be  a  justifi- 
cation, unless,  on  the  trial,  it  shall  be  further  made  satis- 
factorily to  appear  that  the  matter  charged  as  libelous 
was  published  with  good  motives  and  for  justifiable  ends." 
Mr.  Chief  Justice  Horton,  in  Castle  v.  Houstxm^  19  Kan.  417 
(27  Am.  Rep.  127),  referring  to  the  section  just  quoted,  says: 
''Since  the  adoption  of  the  New  York  statute  declaratory 
of  the  law  of  libel  in  criminal  actions,  nearly  every  State 
in  the  Union  has  made  the  subject  a  matter  of  constitu- 
tional or  statutory  provision."  See,  also,  on  this  subject, 
the  notes  to  the  case  of  Warrier  v.  Clctrky  21  L.  R.  A.  502. 

The  legislative  assembly  of  this  State,  in  1864,  passed 
an  act,  which  remains  in  force  and  is  as  follows : 

*'In  all  criminal  prosecutions  for  libel,  the  truth  may  be 
given  in  evidence,  and  if  it  shall  appear  to  the  jury  that 
the  matter  charged  as  libelous  is  true  and  was  published 
with  good  motives  and  justifiable  ends,  the  defendant  must 
be  found  not  guilty":  B.  &.  Comp.  §  2170. 

In  the  case  at  bar,  an  examination  of  the  language  used 
by  the  court  would  seem  impliedly  to  admit  that,  when  the 
truth  of  the  charge  had  been  established  as  a  defense  in 
a  criminal  action  for  libel,  evidence  of  rumors  corrobora- 
tive of  the  alleged  defamatory  matter  was  admissible.  It 
may  well  be  doubted  whether  or  not,  under  a  statute  like 
ours,  such  evidence  is  ever  admissible  in  a  criminal  action 
for  libel ;  but,  as  the  court's  remark  in  respect  to  the  ad- 
missibility of  such  evidence  was  more  favorable  to  the 
defendant  than  he  had  a  right  to  claim,  no  error  can  be 
predicated  thereon. 

3.  R.  G.  Smith,  as  a  witness  for  the  State,  testified,  in 
effect,  that  in  1904  he  was  elected  a  member  of  the  legis- 
lative assembly  of  this  State,  and  that  the  article,  a  copy 
of  which  is  set  out  in  the  information,  was  published  in 
the  course  of  the  political  campaign  of  that  year.  The 
defendant,  as  a  witness  in  his  own  behalf,  testified  sub- 


Yeb.  1906.]  State  v.  Conklin.  515 

dtantially  that  in  1904  he  was  engaged  in  publishing  a 
partisan  newspaper,  supporting  the  nominees  of  the  polit- 
ical party  of  which  he  is  a  member ;  that,  during  the  cam- 
paign preceding  the  general  State  election,  he  discussed 
in  the  newspaper  which  he  published  the  political  issues 
from  his  standpoint  and  commented  upon  the  qualifica- 
tions of  candidates  for  office ;  an  d  that  Smith  was  one  of 
the  nominees  of  the  opposing  party,  whose  election  he  was 
legitimately  trying  to  prevent.  The  witness  was  thereupon 
asked  to  state  from  what  source  he  had  gained  information 
of  the  facts  set  out  in  the  article  complained  of.  An  objec- 
tion to  this  question  having  been  sustained,  an  exception 
was  reserved,  and  it  is  insisted  by  defendant's  counsel  that 
an  error  was  thus  committed.  The  bill  of  exceptions  does 
not  purport  to  contain  all  the  testimony  given  at  the  trial, 
and  it  cannot  be  said  from  an  inspection  thereof  whether 
or  not  any  testimony  was  offered  tending  to  prove  the 
truth  of  the  charge.  If  such  fact  was  clearly  established, 
however,  evidence  of  rumors  thereof  was  unnecessary,  but 
if  not  substantiated,  such  evidence  was  incompetent,  so 
that,  on  either  ground,  no  error  was  committed  in  refus- 
ing to  permit  the  defendant  to  answer  the  question  asked 
him  concerning  the  source  of  the  information  respecting 
the  rumor. 

4.  The  court,  instructing  the  jury,  said  : 

**A  man  who  collects  money  for  another  and  neglects 
or  refuses  to  turn  it  over,  but  uses  the  money  himself, 
commits  a  larceny  under  our  statute.  It  is  termed  em- 
bezzlement, and  is  punishable  as  larceny.  You  will  notice 
the  charge  in  this  information  is  that  he  charges  Mr. 
Smith  with  having  collected  the  money  of  a  widow,  and 
that  he  failed,  he  says,  to  turn  it  over  to  her,  and  that  he 
'  finally  admitted  that  he  used  it.  I  repeat  again,  that  a 
man  who  performs  the  acts  that  are  described  in  this 
information  would  be  subject  to  a  charge  of  larceny,  under 
the  name  of  embezzlement." 


516  State  v.  Conklin.  [47  Or. 

An  exception  having  been  taken  to  this  part  of  the 
charge,  it  is  insisted  by  defendant's  counsel  that  an  error 
was  committed  in  giving  it.  It  is  argued  that  the  words 
complained  of  do  not  impute  the  commission  of  a  crime^ 
but  that  they  are  ambiguous,  and  if  susceptible  of  a  de- 
famatory interpretation,  the  question  whether  or  not  the 
publication  was  libelous  should  have  been  submitted  to 
the  jury.  "Written  words,"  say  the  editors  of  the  Amer- 
ican &  English  Encyclopedia  of  Law  (2  ed.),  vol.  18,  p.  864^ 
**are  libelous  in  all  cases  where,  if  uttered  orally,  they 
would  be  actionable."  Spoken  words  are  actionable  per  se 
only  when  they  impute  the  commission  of  an  offense  liable 
to  indictment  and  punishment,  either  at  common  law  or 
by  the  statute :  Davis  v.  Sladden,  17  Or.  259  (21  Pac.  140); 
Griffin  v.  Moore j  43  Md.  246 ;  Lukehart  v.  Byerly,  53  Pa. 
418.  If  the  words  charged  do  not  imply  the  commission 
of  such  an  offense,  an  innuendo  cannot  extend  their  mean- 
ing so  as  to  render  them  actionable  per  se :  18  Am.  &  Eng. 
Enc.  Law (2  ed.),  982;  Townsend,  Slander  &  Libel  (4  ed.), 
§336;  Starkie,  Slander  &  Libel  (Wood's  Notes),  §444;  Cole 
V.  Neustadter,  22  Or.  191  (29  Pac.  550);  Haines  v.  Campbell, 
74  Md.  158  (21  Atl.  702, 28  Am.  St.  Rep.  240).  An  examina- 
tion of  the  alleged  defamatory  language  set  out  in  the  in- 
formation, when  freed  from  the  innuendoes,  fails  directly 
to  state  that  Mrs.  Lewis  employed  Smith  to  collect  money 
"for  her";  but,  when  it  is  remembered  that  the  statement 
so  published  is  that  Smith  failed  to  turn  the  money  over 
to  her  when  collected,  that  he  admitted  he  had  used  it 
and  would  give  her  his  notes  therefor,  the  charge,  when 
construed  in  its  entirety,  as  the  rules  of  law  direct  (18  Am. 
&  Eng.  Enc.  Law,  2  ed.,  983),  is  that  the  money  was  col- 
lected for  Mrs.  Lewis,  and  constituted  embezzlement,  as 
prescribed  by  our  statute  (B.  &  C.  Comp.  §  1805),  thus 
making  the  accusation  actionable  per  se  :  38  Am.  &  Eng. 
Enc.  Law  (2  ed.),  §  880. 


Feb.  190G.]  Neis  v.  Whitaker.  517 

5.  The  language  used  is  not,  in  our  opinion,  ambiguous 
or  susceptible  to  different  constructions,  and  hence  it  was 
the  duty  of  the  court  to  interpret  the  legal  effect  thereof: 
State  V.  Syphrett,  27  S.  C.  29  (2  S.  E.  624,  13  Am.  St.  Rep. 
616);  Cotulla  v.  Kerr,  74  Tex.  89  (11  S.  W.  1058,  15  Am. 
St.  Rep.  819);  Gabe  v.  McGinnis,  68  Ind.  538;  Gregory  v. 
Atkirhs,  42  Vt.  237. 

No  errer  was  committed  in  charging  the  jury  in  effect 
that  the  language  used  was  libelous  per  se,  and  hence  the 
judgment  is  affirmed.  Affirmed. 


Argued  10  January,  decided  6  February,  1906. 

KEI8  t\  WHITAKEB. 

HI  Pac.  600. 

Plea  of  Express  Rescission  of  Contract —Surplusaqb. 

1.  An  answer  to  a  claim  of  damages  for  the  breach  of  a  contract  of  sale,  stat- 
ing that  the  parties  mutually  agreed  "that  said  contract  set  out  in  the  complaint 
should  be  annulled,  rescinded  and  held  for  naught,  and  that  a  new  and  diflTerent 
contract  should  coyer  all  the  subject-matter"  of  the  original  contract  "wherein 
and  whereby  the  plaintiff's  and  defendants  agreed,"  etc.,  states  an  express  rescis- 
sion of  the  first  contract,  and  is  a  plea  In  bar  to  a  recovery  thereon.  Further 
matter  concerning  the  subsequent  dealings  between  the  parties  as  to  part  of  the 
subject  matter  of  the  contracts  is  mere  surplusage. 

Trial  — Evidence  as  to  Burplusaoe  or  Redundant  Matter. 

2.  Surplusage  in  a  pleading,  or  redundant  matter,  should  be  disregarded  at 
the  trial  and  evidence  in  support  thereof  should  usually  be  rejected,  unless  it 
may  be  competent  sometimes  to  rebut  claims  of  the  adversary.  The  general  rule 
Is,  once  redundant,  always  so. 

Trial  — Effect  of  Inconsistent  Instructions. 

3.  The  giving  to  a  Jury  of  conflicting  instructions  on  a  given  point  constitutes 
reversible  error,  even  though  one  instruction  may  have  been  correct. 

For  example:  In  an  action  on  a  contract,  the  defense  being  a  rescission  and 
the  execution  a  new  agreement,  it  is  error  to  give  one  instruction  on  the  theory 
of  an  express  rescission  by  agreement  and  another  on  the  theory  of  an  Implied 
rescission,  as  the  two  theories  are  directly  conflicting. 

From  Benton  :  James  W.  Hamilton,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  an  action  by  Kola  Neis,  as  administrator  of  the 
partnership  estate  of  Faber  &  Neis,  against  John  Whit- 
aker and  Frank  Whitaker,  to  recover  damages  for  an 
alleged  breach  of  an   agreement.    The  complaint  state 


518  Neis  v.  Whitaker.  [47  Or. 

that  November  21,  1901,  the  defendants  entered  into  a 
written  contract  with  Faber  &  Neis,  whereby  they  stipu- 
lated annually,  from  1902  to  1906,  inclusive,  to  cultivate  a 
hopyard  in  Benton Oounty,  and  on  or  before  the  15th  day 
of  October  of  such  years  to  deliver  to  the  latter,  at  Corvallis, 
20,000  pounds  of  merchantable  hops,  properly  baled,  for 
which  they  were  to  be  paid  10  cents  per  pound,  and  were 
to  receive  as  advances  on  account  thereof  the  sums  of  $200 
and  11,000  respectively,  on  the  1st  day  of  April  and  of 
September  of  such  years,  the  remainder  of  the  purchase 
price  to  be  paid  when  the  hops  were  delivered  ;  that  Faber 
died  January  21,  1904,  and  12  days  thereafter  Neis  was 
duly  appointed  and  immediately  qualified  as  administra- 
tor of  the  partnership  estate  ;  that  in  1904  the  defendants 
raised  20,000  pounds  of  merchantable  hops,  and  pursuant 
to  the  terms  of  the  contract  Neis,  as  such  administrator, 
advanced  to  them  the  sums  agreed  upon  at  the  times  speci- 
fied, and  October  17, 1904,  demanded  of  the  defendants  the 
delivery  of  that  quantity  of  hops  which  were  baled  and 
in  store  at  Corvallis,  tendering  the  remainder  of  the  pur- 
chase price,  but  they  refused  to  comply  therewith,  where- 
by plaintiff,  as  such  administrator,  sustained  damage  in 
the  sum  of  15,419,  the  recovery  of  which  is  demanded. 

The  answer  denies  the  material  allegations  of  the  com- 
plaint, and,  for  a  separate  defense,  states : 

**That  on  or  about  the  20th  day  of  February,  1903,  the 
said  plaintiffs,  Neis  &  Faber,  and  these  defendants  by 
mutual  agreement  agreed  that  the  said  contract  of  Novem- 
ber 21,  1901,  set  out  in  the  complaint  herein,  should  be 
annulled,  rescinded  and  held  for  naught,  and  that  a  new 
and  different  contract  should  cover  all  and  singular  of  the 
subject-matter  of  the  hops  to  be  produced  on  the  said 
farm  or  yard  mentioned  in  the  complaint  herein,  wherein 
and  whereby  the  said  plaintiffs  agreed  to  pay,  and  these 
defendants  agreed  to  accept  payment,  for  all  hops  grown 
on  said  yard  during  the  year  1903  to  the  extent  of  20,000 


Feb.  1906.]  Neis  v.  Whitaker.  519 

pounds,  or  such  less  amount  as  might  be  produced  thereon 
of  good  merchantable  hops  at  the  rate  of  12  cents  per 
pound  in  the  City  of  Corvallis,  Oregon,  the  same  to  be 
baled  in  good  condition,  and  the  plaintiffs  further  agreed 
at  said  time  that,  in  addition  to  the  said  12  cents  net  per 
pound  for  the  said  hops  to  be  grown  as  aforesaid,  they 
would  well  and  truly  pay  to  the  defendants  a  per  cent  bet- 
ter in  the  ev^ent  that  the  market  price  of  the  hops  in  the 
year  1903  was  15  cents  per  pound  or  more  ;  that  pursuant 
thereto  the  said  plaintiff  paid  to  these  defendants  for  all 
the  hops  grown  by  them  during  the  said  year  1903,  to  wit, 
17,951  pounds,  the  sum  of  12  cents  per  pound  net  there- 
for and  refused  to  pay  any  further,  other,  or  greater  per 
cent  on  the  market  price  of  said  hops  than  150,  the  mar- 
ket price  of  hops  at  the  date  of  said  payment,  to  wit,  Sep- 
tember 25,  1903,  being  23  cents  per  pound  or  there- 
abouts." 

For  another  defense  it  is  alleged,  in  effect,  that  in  Feb- 
ruary, 1904,  the  parties  attempted  to  make  another  con- 
tract for  the  sale  and  delivery  of  hops  to  be  grown  that 
year,  and  that  relying  upon  such  agreement,  the  terms  of 
which  had  been  assented  to,  the  defendants  accepted  cer- 
tain advances  made  to  them  on  account  thereof,  but, 
plaintiff  having  refused  to  sign  such  contract,  they  ten- 
dered to  him  the  money  so  received  and  interest  thereon, 
which  sums  he  refused  to  accept,  whereupon  they  de- 
posited the  same  with  the  clerk  of  the  court  for  him.  The 
reply  specifically  denied  each  alle'gation  of  new  matter  in 
the  answer,  and  averred  that  no  note  or  memorandum 
expressing  the  consideration  or  terms  of  the  alleged  modi- 
fied agreement  was  ever  made  or  subscribed  by  the  plain- 
tiff or  by  any  person  authorized  so  to  du  by  him.  The 
cause  having  been  tried,  judgment  was  rendered  for  the 
costs  and  disbursements  of  the  action  against  the  plaintiff, 
and  he  appeals.  Reversed. 

For  appellant  there  was  a  brief  over  the  names  oiWeath- 
erford  &  Wyatt,  W.  M.  Kaiser  and   W.  T.  Slater,  with  oral 


520  Neis  V,  Whitaker.  [47  Or. 

arguments  by  Mr.  James  Knox  Weatherford  and  Mr,  Wood- 
son Taylor  Slater. 

For  respondents  there  was  a  brief  over  the  names  of 
W.  S.  McFadden  and  W.  E.  Yates,  with  an  orgal  agument 
by  Mr.  McFadden. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

1.  It  is  contended  by  plaintiff's  counsel  that  the  allega- 
tions of  new  matter  in  the  answer,  as  hereinbefore  quoted, 
constitute  an  averment  of  a  rescission  by  implication, 
limited  in  its  application  to  the  year  1903,  and  that,  as  the 
original  contract  was  severable  in  respect  to  each  of  the 
five  years  of  the  specified  term,  the  annulment  alleged 
left  such  contract  in  force  and  effect  in  1904,  when  the 
cause  of  action  stated  in  the  complaint  accrued,  and,  this 
being  so,  the  court  erred  in  admitting  testimony  over 
plaintiff's  objection  and  exception.  An  examination  of 
the  language  used  in  the  affirmative  defense,  to  which  at- 
tention is  called,  will  show  an  intent  to  plead  an  agree- 
ment of  the  parties  in  the  following  particulars,  to  wit : 
(1)  That  the  contract  of  November  21,  1901,  "should  be 
annulled,  rescinded,  and  held  for  naught";  and  (2)  that 
a  new  and  different  contract  "should  cover  all  and  singu- 
lar of  the  subject-matter  of  the  hops  to  be  produced."  If 
the  answer' had  stated  that  the  original  contract  had  been 
rescinded  by  the  makihg  of  a  new  agreement,  such  sup- 
posed abrogation  would  probably  be  by  implication  only, 
for  the  use  of  the  preposition  "by,"  inditjating  that  the 
revocation  was  secured  in  a  particular  manner,  in  the 
case  assumed,  would  show  Ihat  the  annulment  resulted 
from  the  conduct  of  the  parties,  and  not  in  pursuance  of 
their  stipulation  to  that  effect.  The  agreement  of  Feb- 
ruary, 1903,  as  alleged  in  the  answer,  states  a  meeting  of 
the  minds  of  the  parties  in  respect  to  the  cancellation  of 
the  contract  of  November  21,  1901,  and  to  the  making 


Feb.  1906.]  Neis  v.  Whitaker.  521 

of  a  new  agreement  for  future  production  and  delivery  of 
hops.  The  use  of  the  word  "and/*  connecting  the  inde- 
pendent sentences  quoted,  manifests  an  intention  to  plead 
the  separate  propositions  embodied  in  the  agreement  of 
February,  1903,  thus  showing  that  the  language  used  in 
the  first  affirmative  defense  constitutes  an  averment  of  an 
express  rescission.  The  annulling  of  the  contract  having 
been  thus  distinctly  alleged,  the  averment  thereof  consti- 
tuted a  plea  in  bar  of  plaintiff's  recovery,  and,  this  being  so, 
no  necessity  existed  for  stating  in  the  answer  the  making 
of  a  "new  and  different  contract"  in  respect  to  the  growth, 
-sale  or  delivery  of  hops  in  the  year  1903.  The  terms  of 
such  agreement  and  the  performance  thereof  by  the  par- 
ties, as  alleged  in  the  answer,  were  probably  averred  to 
explain  the  defendants'  delivery  to  Faber  &  Neis  of  the 
hops  grown  in  the  year  1903,  notwithstanding  the  cancel- 
lation of  the  original  contract. 

2.  No  motion  was  made  to  strike  out  the  averments  of 
the  making  of  a  new  contract  relating  to  the  future  pro- 
•ductiou,  sale  or  delivery  of  hops,  but  plaintiff  specifically 
denied  such  allegations  in  the  reply,  and  testimony  hav- 
ing been  admitted,  over  his  objection  and  exception,  tend- 
ing to  show  what  the  defendants  did  pursuant  to  the  terms 
of  the  new  agreement,  it  remains  to  be  seen  whether  or 
not  such  testimony  should  have  been  excluded,  notwith- 
standing the  issue  on  that  subject.  If  irrelevant  or  re- 
<iundant  matter  be  inserted  in  a  pleading,  it  may  be 
stricken  out  on  motion  of  the  adverse  party:  B.  &  C. 
Comp.  §  86.  "Unnecessary  matter,"  says  Mr.  Bliss,  in  his 
work  on  Code  Pleading  (3  ed.),  §  215,  "is  called  *redund- 
ant'  when  there  is  an  effort  to  reform  the  pleadings  by 
striking  it  out.  It  is  called  'surplusage'  when  there  has 
been  no  such  effort,  in  which  case  it  should  be  disregarded 
by  the  court,  as  if  the  pleading  did  not  contain  it."  See, 
also,  Boone,  Code  Plead.  §  249.    The  editors  ot  the  Ency- 


522  Nkis  V,  Whitakkr.  [47  Or. 

clopedia  of  Pleading  and  Practice  (volume  21,  p.  256),  in 
speaking  of  surplusage,  say:  '*In  most  code  states  irrele- 
vant or  redundant  matter  goes  for  nothing  at  the  trial, 
whether  controverted  or  disregarded  in  pleading."  In 
Specht  V.  Spangenberg,  70  Iowa,  488  (30  N.  W.  875),  Mr. 
Chief  Justice  Adams,  speaking  upon  this  subject,  says : 
"An  averment  irrelevant  when  made  does  not  become 
relevant  by  being  denied."  If  the  parties  to  this  action 
agreed  to  annul  the  original  contract  as  alleged  in  the 
answer,  such  fact,  if  established,  constituted  a  bar  to 
plaintiff's  recovery,  and  hence  the  making  of  a  new  agree- 
ment relating  to  the  hops  to  be  produced  in  1903  had  no 
bearing  on  the  question  in  dispute,  did  not  affect  the  sub- 
ject-matter of  the  controversy,  and  could  in  no  way  assist 
the  decision  of  the  court,  but  probably  tended  to  confuse 
and  prejudice  the  jury.  The  issue  being  immaterial,  the 
testimony  so  objected  to  should  have  been  rejected  (20 
Enc.  PI.  &  Pr.  108),  unless  it  was  offered  to  repel  plain- 
tiff's contention  that  the  defendants'  delivery  of  the  hops 
grown  in  1903  evidenced  their  recognition  of  the  validity 
and  continuity  of  the  original  contract.  It  does  not  ap- 
pear whether  or  not  this  testimony  was  offered  for  a  pur- 
pose that  would  render  it  admissible,  but  in  view  of  a  new 
trial,  to  which  we  think  the  plaintiff  is  entitled  on  another 
feature  of  the  ease,  the  discussion  of  this  question  has 
been  deemed  advisable. 

3.  The  court,  referring  to  the  defense  interposed,  in 
charging  the  jury,  said  : 

"This  answer  is  in  substance  that  the  parties  made  a 
new  agreement  whereby  they  annulled  and  set  aside  this 
alleged  contract  entered  into  in  1901,  and  that  this  agree- 
ment was  substituted  instead  of  that,  and  that  the  other 
was  to  be,  by  the  terms  of  this  agreement,  no  longer  in 
force." 


Feb.  1906.]  Nkis  v,  Whitaker.  523 

In  alluding  to  the  original  contract,  the  jury  were 
charged  as  follows: 

**If  you  find  from  the  evidence  ♦  ♦  that  the  parties 
♦  *  agreed  ♦  ♦  that  the  old  contract  was  to  be  no  longer 
of  any  effect,  that  the  terms  were  changed,  I  instruct  you 
that  it  was  within  the  power  of  the  parties  to  change  that 
contract,  and,  if  they  did,  then  plaintiff  could  not  bring 
an  action  upon  the  contract  of  1901." 

The  court,  adverting  to  the  agreement  of  February,  1903, 
also  gave  the  following  instruction  : 

"But  if  the  parties  agreed  upon  a  different  contract  and 
it  was  understood  that  it  was  to  be  in  lieu  of,  and  to  annul, 
the  old  one,  and  they  executed  the  contract  by  delivery  of 
the  hops  for  that  year,  and  plaintiff  received  the  hops  with 
that  understanding,  that  would  be  a  complete  defense  to 
this  cause  of  action."  . 

Exceptions  were  taken  by  plaintiff's  counsel  to  the  lan- 
guage thus  used,  on  the  ground  that  though  Faber  &  Neis 
in  1903  donated  to  the  defendants  two  cents  a  pound  for 
their  hops  more  than  specified  therefor,  and  also  gave 
them,  in  addition  thereto,  the  sum  of  $50,  such  benefac- 
tions did  not  even  modify  the  original  contract. 

An  examination  of  the  parts  of  the  charge  hereinbefore 
quoted  will  show  that  the  court  seems  to  place  the  bar  to 
plaintiff's  recovery  upon  an  implied  rescission  of  the  con- 
tract of  November  21, 1901,  by  the  making  of  a  new  agree- 
ment, whereby  the  terms  of  the  original  contract  were 
changed,  which  agreement  was  adopted  in  lieu  of  and  to 
annul  the  old  contract.  In  the  brief  of  defendants'  counsel 
the  following  statement  is  made:  **There  is  nothing  in 
this  cause  of  any  implied  rescission  of  the  contract  of  No- 
vember 21,  1901,  as  contended  by  the  appellants."  This 
assertion  seems  to  be  warranted  by  an  examination  of  cer- 
tain parts  of  the  court's  charge,  which  we  do  not  deem 
necessary  to  set  out,  wherein  the  jury  were  told,  in  effect, 
that  the  rescission  was  secured  by  an  express  stipulation 


524  Basim  v.  Wade.  [47  Or. 

of  the  parties  ;  the  court  having  told  the  jury,  in  the  parts 
of  the  charge  hereinbefore  quoted,  that,  if  they  found  that 
the  parties  had  made  a  new  agreement  in  lieu  of  and  to 
annul  the  old  contract,  the  plaintiff  could  not  recover  in 
this  action.  It  will  thus  be  observed  that  the  rescission 
is  treated  by  the  court  as  having  been  secured  by  express 
stipulation  of  the  parties  to  that  effect,  and  also  brought 
about  by  implication,  resulting  from  the  making  of  a  new 
agreement,  when  the  answer  directly  states  that  the  an- 
nulling of  the  contract  was  based  on  the  former  ground, 
thus  showing  that  the  instructions  are  inconsistent.  The 
:gi  ving  of  inconsistent  and  conflicting  instructions  is  erron- 
eous, when  it  is  impossible  to  say  which  rule  the  jury 
adopted  in  rendering  their  verdict,  and  such  error  is  not 
cured  though  the  law  may  have  been  correctly  stated  in 
another  part  of  the  charge:  Morrison  v.  McAtee,  23  Or. 
-530  (32  Pac.  400). 

For  the  error  committed  in  the  giving  of  such  instruc- 
liions,  the  judgment  is  reversed,  and  a  new  trial  ordered. 

Reversed. 


Decided  27  February,  1806. 
BASIM  v.  WADE. 

84  Pac.  887. 


Costs— Time  for  Filing  Cost  Bill— Time  to  Object. 

Under  Section  508,  B.  &  C.  Comp.,  as  amended  by  Laws  1908,  pp.  200,  210,  a 
party  entitled  to  costs  and  disbursements  has  until  and  including  the  first  day 
•of  the  next  regular  term  following  the  rendition  of  the  Judgment  witbli\  which 
to  file  his  statement,  and  the  opposite  party  has  five  days  from  the  date  of  such 
filing  to  file  objections  thereto,  and  not  five  days  after  the  first  day  of  the  next 
regular  term. 

From  Wallowa  :  Robert  Eakin,  Judge. 

Statement  by  Mr.  Justice  Hailey. 

The  plaintiff,  Judson  Basim,  brought  an  action  against 
Aaron  Wade,  and  at  the  trial,  upon  his  own  motion,  had 
A  nonsuit  entered  without  prejudice,  with  judgment  for 


Feb.  1906.]  Basim  v.  Wade.  525- 

costs  and  disbursements  against  him.  After  the  expira- 
tion of  five  days  from  the  rendition  of  the  judgment  de- 
fendant served  and  filed  his  statement  of  costs  and  dis- 
bursements, and,  no  objections  thereto  having  been  filed 
by  plaintiff  within  five  days  from  the  filing  thereof,  such 
costs  and  disbursements  were  entered  as  of  course  by  the- 
clerk  as  a  part  of  the  judgment,  and  an  execution  issued 
thereon.  Thereupon,  without  filing  any  objections  to  said 
statement,  the  plaintiff  filed  a  motion  to  recall  the  execu-- 
tion,  claiming  that  the  judgment  for  costs  and  disburse- 
ments had  been  prematurely  entered  for  the  reason  that, 
the  statement  thereof  having  been  filed  after  the  expira- 
tion of  five  days  from  the  rendition  of  judgment,  the  plain- 
tiff had  until  five  days  after  the  first  day  of  the  next  term 
of  court  in  which  to  file  his  objections  thereto.  An  order 
overruling  this  motion  was  entered,  from  which  this 
appeal  is  taken.  The  case  was  submitted  on  briefs  under 
the  proviso  of  Rule  16:  35  Or.  587,  600.         Affirmed. 

For  appellant  there  was  a  brief  over  the  name  of  Mr,. 
Francis  Swift  Ivanhoe, 

For  respondent  there  was  a  brief  over  the  name  of  Mr.. 
John  Simeon  Hodgin. 

Mr.  Justice  Hailey  delivered  the  opinion  of  the  court. 

The  question  before  us  is  when,  under  Section  568,  B.  &. 
0.  Comp.,  as  amended  in  1903  (Laws  1903,  p.  209),  must. 
a  judgment  debtor  file  his  objections  to  the  statement  of 
costs  and  disbursements  of  a  judgment  creditor,  filed  after 
the  expiration  of  five  days  after  the  rendition  of  judgment. 
Must  he  do  so  within  five  days  after  the  statement  is  filed, 
or  can  he  do  so  at  any  time  before  the  expiration  of  five 
days  after  the  first  day  of  the  next  regular  term  of  court- 
occurring  after  the  filing  of  such  statement?  The  law  as« 
amended  reads : 


526  State  v.  Lank.  [47  Or. 

**The  statement  of  disbursements  thus  filed,  and  costs, 
shall  be  entered  as  of  course  by  the  clerk  as  a  part  of  the 
judgment  or  decree  in  favor  of  the  party  entitled  to  costs 
and  disbursements,  unless  the  adverse  party  within  five 
days  from  the  expiration  of  the  time  allowed  to  file  such 
statement  shall  file  his  objections  thereto." 

The  old  law  read : 

**The  statement  of  disbursements  thus  filed,  and  costs, 
shall  be  allowed  of  course,  unless  the  adverse  party,  within 
two  days  from  the  time  allowed  to  file  the  same,  shall  file 
his  objections  thereto." 

Under  the  old  law  this  court  held  in  effect,  in  Hislop  v. 
Moldenhauer,  24  Or.  106  (32  Pac.  1026),  that  objections  to 
a  cost  bill  must  be  filed  within  two  days  after  the  filing  of 
the  cost  bill,  and  yet  under  that  law  the  filing  of  the  cost 
bill  was  not  limited  to  the  first  day  of  the  next  regular 
term  of  court  occurring  after  the  rendition  of  the  judg- 
ment, as  in  the  amended  law.  We  think,  therefore,  the 
effect  of  the  amendment,  as  applied  to  the  case  at  bar,  is 
to  limit  the  time  within  which  a  cost  bill  can  be  filed  to 
the  first  day  of  the  next  regular  term  of  court  occurring 
after  the  rendition  of  judgment,  and  to  extend  the  time 
within  which  objections  thereto  can  be  filed  from  the  old 
limit  of  two  days  to  a  new  limit  of  five  days  after  filing 
the  cost  bill,  and  not  until  five  days  after  the  expiration 
of  the  first  day  of  the  next  term  of  court  occurring  after 
filing  the  cost  bill,  as  claimed  by  plaintiff.  The  order  of 
the  lower  court  is  therefore  affirmed.  Affirmed. 


Argued  21  February,  decided  27  March,  1900. 
STATE  V,  LAKE. 

84  Pac.  804. 

Remarks  and  Conduct  or  Judge  Befobe  the  Jury— Instructions. 

1.  Every  act  and  remark  of  a  trial  judge  in  the  presence  of  a  Jury  may  appre- 
ciably affect  the  verdict,  and  therefore  It  has  been  held  in  some  courts  that  every 
remark  of  a  trial  Judge  concerning  the  testimony  in  a  case  on  trial  before  him, 
made  in  the  presence  of  the  Jury,  is  to  be  considered  an  instruction. 


Mar.  1906.]  Stat*  v.  Lane.  527- 

Trial— Province  of  Jury— Remarks  op  Judos. 

2.  A  trial  Judge  may  with  propriety  correctly  state  the  testimony  of  a  witness, 
where  there  Is  a  confusion  or  dispute  as  to  what  the  testimony  was,  and  In  so 
doing  he  does  not  Invade  the  right  of  the  Jury  to  pass  on  all  questions  of  ftust,  as 
reserved  by  Section  139,  B.  A  C.  Com  p.:  State  v.  Luccu,  *M  Or. !(»,  dl^Unguished. 

Statement  by  Mr.  Justice  Moore. 

The  defendant,  B.  F.  Lane,  was  charged,  by  an  inforraa- 
tion,  with  the  crime  of  assault  with  intent  to  kill,  alleged 
to  have  been  committed  in  Lake  County,  January  22, 1905, 
by  shooting  and  wounding  one  Birt  McKune,  and  having 
been  tried  therefor,  he  was  convicted  of  the  crime  of  as- 
sault with  a  deadly  weapon  and  appeals  from  the  judg- 
ment which  followed. 

The  bill  of  exceptions  shows  that  Ambrose  Reeder,  hav- 
ing been  called  as  a  witness  by  the  State,  testified  that  on 
January  22,  1905,  he  was  employed  by  the  defendant  as  a 
sheep  herder;  that  prior  to  the  trial  ho  had  told  several 
persons  that  he  witnessed  the  shooting  and  saw  McKune 
fire  at  Lane  before  the  latter  shot  at  him.  Reeder  admitted 
that  he  did  not  see  the  shooting  and  that  his  prior  state- 
ments in  relation  thereto  were  induced  by  fear  of  the  de- 
fendant, and,  in  referring  to  threats  made  by  Lane  to  him, 
the  witness  testified  as  follows: 

"A.  He  said  he  would  have  old  Mack  to  prosecute  me 
if  I  didn't  swear  to  what  he  wanted  me  to. 

Q.  Who  was  the  old  Mack  referred  to? 

A.  Fellow  that  was  running  a  gambling  house  in  Silver 
Lake. 

Q.  What  is  his  name? 

A.  McCarty.  *  * 

Q.  Do  you  recollect  whether  or  not  anything  was  said 
about  McCarty  offering  money  for  information  about  the 
whiskey  stealing? 

A.  Yes;  he  did. 

Q.  What  was  it  ? 

A.  He  said  McCarty  offered  him  two  big  twenties,  or 
some  more,  if  he  would  tell  who  the  boys  were. 


528  State  v.  Lank.  [47  Or. 

Q.  What  was  that  whiskey  stealing  incident  that  he 
referred  to  ? 

A.  I  don't  understand  it. 

Q.  Tell  the  jury  what  the  matter  was  that  Lane  referred 
to  when  he  spoke  about  the  offer  of  McCarty  to  him  to  give 
information  about  the  boys  stealing  whiskey.  What  con- 
nection had  you  with  that? 

A.  I  didn't  have  any  connection  to  it.  I  came  along 
shortly  afterwards. 

Q.  Came  along  where  do  you  mean  ? 

A.  Where  the  boys  were,  that  had  the  whiskey. 

Q.  What  whiskey? 

A.  Old  Mack's  saloon  whiskey. 

Q.  Go  on  and  explain  to  the  jury  what  it  was,  and  when 
it  occurred  ? 

A.  I  don't  remember  when  it  occurred. 

Q.  About  how  long  prior  to  this  shooting  did  it  occur? 

A.  That  was  in  the  summer  before  the  shooting;  last 
summer. 

Q.  Go  ahead  and  tell  the  jury  now  how  it  was  —  that 
whiskey  stealing  proposition  was — and  how  you  were  con- 
nected with  it  ? 

A.  I  was  working  in  the  stable  and  came  along  shortly 
after  they  stole  it.  I  was  into  it  and  helped  drink  part 
of  it." 

While  the  defendant's  counsel  was  arguing  the  case  to 
the  jury,  the  court,  in  response  to  such  appeal,  referring 
to  Reeder's  testimony,  observed :  **The  witness  said  he 
was  *in  it,'  but  he  meant  clearly  that  he  was  not  in  the 
stealing,  but  was  with  them  afterwards  and  helped  them 
drink  it."  The  defendant's  counsel  excepted  to  such  ex- 
pression, and  contends  that  an  error  was  thereby  com- 
mitted. Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  E. 
M.  Braitain  and  J.  M.  Batchelder,  with  an  oral  argument 
by  Mr.  Batchelder, 

For  the  State  there  was  a  brief  over  the  names  of  An- 
drew Murray  Crawford,  Attorney  General,  and  W,  J.  Moore^ 
District  Attorney,  with  an  oral  argument  by  Mr,  Crawford, 


Mar.  1906.1  State  v.  Lane.  529 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

1.  The  question  thus  presented  is  whether  or  not  the 
court's  remark  to  defendant's  counsel  respecting  the  tes- 
timony given  by  a  witness  invaded  the  province  of  the 
jury.  Our  statute,  in  prescribing  the  kind  of  instructions 
to  be  given,  contains  the  following  declaration,  to  wit: 

"  In  charging  the  jury,  the  court  shall  state  to  them  all 
matters  of  law  which  it  thinks  necessary  for  their  infor- 
mation in  giving  their  verdict,  but  it  shall  not  present 
the  facts  of  the  case,  but  shall  inform  the  jury  that  they 
are  the  exclusire  judges  of  all  questions  of  fact":  B.  &  C. 
Comp.  §  139. 

It  will  not  do  to  say  that  because  the  language  com- 
plained of  was  addressed  to  defendant's  counsel,  though 
in  the  presence  of  the  jury,  that  the  expression  was  not 
used  in  charging  them  and  for  that  reason  it  was  harm- 
less. Any  person  who  has  carefully  observed  the  atten- 
tion which  jurors  give  to  what  they  consider  to  be  the 
court's  predisposition  towards  or  opposition  to  a  party, 
knows  that  a  judge's  smile  or  frown  during  the  trial  of  a 
cause  seems  to  influence  their  minds,  thereby  affecting 
their  verdict.  As  spoken  language  is  usually  the  better 
means  of  indicating  prejudice  or  sympathy  than  facial 
expression,  the  former  mode  of  revealing  a  mental  con- 
dition is  therefore  the  more  prejudicial.  Conceding  that 
every  comment  made  by  a  court  in  the  presence  of  a  jury, 
respecting  the  testimony  given  by  a  witness,  is  in  the  na- 
ture of  an  instruction  {State  v.  Stowell,  60  Iowa,  535,  15 
N.  W.  417),  the  remark  complained  of  will  be  examined 
to  determine  whether  or  not  the  language  used  attempted 
to  present  the  facts  of  the  case,  and  for  that  reason  vio- 
lates the  provisions  of  the  statute  quoted. 

2.  That  the  court's  observation  to  the  defendant's  coun- 
sel was  subject  to  the  objection  interposed  at  the  trial, 
they  cite  the  case  of  State  v.  Lucaa^  24  Or.  168  (33  Pac. 

17  Or. 84 


530  State  v.  Lane.  [47  Or. 

588).  In  that  case  the  language  complained  of  related  to 
the  veracity  of  an  unchaste  woman  who  was  an  important 
witness.  Her  credibility  was  a  question  within  the  exclu- 
sive province  of  a  jury  to  determine,  without  suggestion 
by  the  court.  In  the  case  at  bar,  however,  so  far  as  we 
are  able  to  ascertain  from  an  inspection  of  the  bill  of  ex- 
ceptions, the  court  was  only  attempting  to  correct  an  evi- 
dent misstatement  of  Reeder's  testimony,  by  suggesting 
to  defendant's  counsel  what  that  witness  had  unquestion- 
ably said. 

It  is  not  to  be  supposed,  nor  do  we  intend  to  be  under- 
stood as  intimating,  that  the  misrepresentation  of  the  tes- 
timony was  willful.  In  the  excitement  necessarily  inci- 
dent to  an  energetic  trial,  testimony  given  in  favor  of  or 
in  opposition  to  a  party  frequently  produces  impressions 
upon  the  minds  of  counsel  that  are  at  variance  with  the 
declarations  under  oath  of  the  witnesses  as  heard  by  per- 
sons who  are  less  interested  in  the  result  of  the  action. 
It  is  sometimes  difficult  to  hear  distinctly  what  a  timid 
or  hesitating  witness  has  said  when  called  to  the  stand, 
and  an  attorney,  in  commenting  before  the  jury  upon  the 
testimony  which  he  supposes  to  have  been  given,  may 
impart  to  it  a  coloring  not  justified  by,  and  possibly  at 
variance  with,  the  exact  words  spoken.  The  modern 
method  of  reporting  trials  of  actions  enables  opposing 
counsel  to /correct  such  misstatements  by  causing  the 
stenographic  notes  of  the  testimony  given  by  a  witness 
to  be  read,  thereby  avoiding  the  necessity  formerly  ex- 
isting of  applying  to  the  court  for  a  correct  statement  of 
the  language  used  under  oath.  Though  the  precise  in- 
terpretation of  the  testimony  so  given  is  not  at  present 
indispensable  by  the  court,  as  the  arbiter  of  controver- 
sies, when  a  stenographic  report  of  a  trial  is  made,  such 
modern  method  does  not  necessarily  preclude  a  judge,  in 
case  the  testimony  of  a  witness  is  evidently  misstated  by 


Feb.  1906.]  Dickey  v.  Jackson.  531 

counsel,  from  correcting  the  error,  if  the  language  used 
is  a  repetition  of  the  testimony  given.  Thus,  in  State  v. 
Burns,  19  Wash.  52  (52  Pac.  316),  the  defendant  having 
been  convicted  of  grand  larceny  appealed,  and  in  affirm- 
ing the  judgment  Mr.  Chief  Justice  Scott,  disposing  of 
a  similar  assignment,  declared  :  "  It  is  next  alleged  that 
^he  court  erred  in  commenting  on  the  testimony.  The 
language  complained  of  is  that  the  court  said :  *  It  is 
mostly  a  case  of  positive  testimony.'  This  was  in  fact 
true.  The  remark  was  not  open  to  the  charge  that  the 
court  expressed  an  opinion  on  the  weight  of  the  testi- 
mony. There  was  no  error  in  this  respect.'*  An  exami- 
nation of  Reeder's  testimony,  which  has  been  hereinbe- 
fore set  out  in  its  entirety,  on  this  branch  of  the  case, 
conclusively  shows  that  the  court's  remark  was  in  effect 
a  correct  statement  thereof,  and  this  being  so,  no  error 
was  committed  as  alleged. 

Another  alleged  error  is  assigned  by  defendant's  coun- 
sel ;  but,  deeming  it  unimportant,  the  judgment  is  af- 
firmed. Affirmed. 


Argued  11  January,  decided  13  February.  1906. 
DIOKET  V.  JAOKSOK. 

84  Pac.  701. 

OOMPBOMISB  AND  SETTLEMENT ~ SUFFICIENCY  OF  CONSIDERATION. 

1.  A  settlement  of  claims  or  demands  urged  in  good  faith,  even  though  of 
doubtful  validity,  is  made  on  a  sufficient  consideration. 

Duress. 

2.  The  evidence  here  is  convincing  that  the  compromise  and  settlement  In 
question  ^as  made  voluntarily  and  not  under  duress. 

From  Multnomah:  John  B.  Cleland,  Judge. 

Statement  by  Mr.  Chief  Justice  Bean. 

This  is  a  suit  by  J.  E.  Dickey  against  G.  W.  Jackson  on 
a  written  contract  to  obtain  a  judgment  against  the  de- 
fendant Jackson  for  $10,400,  and  to  foreclose  a  lien  on  a 


532  Dickey  v.  Jackson.  [47  Or^ 

certificate  of  deposit  for  $20,000,  issued  by  the  defendants 
Ladd  &  Tilton  to  Jackson,  and  by  him  pledged  to  the.plain- 
tiff  as  security  for  the  payment  of  the  above-named  amount. 
The  facts  in  brief  are  these  :  For  some  years  prior  to  1899^ 
the  plaintiff  and  defendant  had  been  living  together  in 
Portland  as  husband  and  wife,  without  the  formality  of  a 
marriage.  During  that  time  they  had  accumulated  con- 
siderable property,  the  title  to  which  was  in  the  defendant, 
but  to  which  the  plaintiff  made  some  claim.  In  the  spring 
of  1899,  the  defendant  went  to  Manila  to  engage  in  busi- 
ness, and  soon  after  his  arrival  purchased  an  interest  in  a 
hotel  or  restaurant  and  saloon  combined,  and  a  few  weeks 
later  bought  out  his  partner,  and  obtained  title  to  the  entire 
business.  The  plaintiff  thereafter  joined  him  at  Manila 
and  immediately  took  charge  of  and  looked  after  the  hotel 
or  restaurant  part  of  the  business,  and  the  defendant  de- 
voted his  attention  to  the  saloon  department.  They  thus 
continued  the  business  until  June,  1901,  when  they  sold 
out,  and  returned  to  Portland,  bringing  with  them  $2,000 
in  cash  received  as  part  of  the  purchase  price  and  $20,000^ 
profits  derived  from  the  business  during  the  time  it  was 
conducted  by  them.  Before  leaving  Manila,  the  money 
was  divided  into  two  parts,  each  of  the  parties  having  cus- 
.tody  of  one  part  during  the  voyage  home.  Upon  their 
arrival  in  Portland  they  went  to  the  banking  house  of  Ladd 
&  Tilton. and  deposited  the  money,  receiving  a  certificate 
of  deposit  therefor  in  the  name  of  the  defendant.  They 
thereafter  continued  to  live  together  as  before  until  some 
time  in  1903,  when  the  plaintiff  again  went  to  Manila, 
After  she  had  been  there  for  some  time,  she  wrote  to  the 
defendant  for  money  with  which  to  make  some  invest- 
ments, but,  being  unable  to  obtain  it,  returned  to  Portland 
about  the  1st  of  May,  1904,  and  demanded  a  settlement  of 
their  business  affairs,  claiming  to  have  been  a  partner  in 
the  hotel  and  saloon  business  in  Manila,  and  entitled  to  one- 


Feb.  1906  ]  Dickey  v,  Jackson.  533 

half  the  profits  thereof,  and  also  to  have  causes  of  action 
against  him  for  breach  of  promise  to  marry  and  for  seduc- 
tion. 

As  the  plaintiff  was  unable  to  reach  a  satisfactory  set- 
tlement, she  placed  the  matter  in  the  hands  of  Judge 
Northup,  who,  after  considerable  negotiation  with  the  de- 
fendant, finally  obtained  a  compromise  by  which  the  lat- 
ter agreed  to  assign  and  transfer  to  the  plaintiff  one-half 
the  sum  of  $20,000,  with  interest  thereon,  as  represented 
by  a  certificate  of  deposit  issued  by  the  defendants  Ladd 
<fe  Tilton  in  his  favor  for  that  amount,  dated  November  3, 
1903,  payable  one  year  after  date,  and  bearing  interest  at 
4  per  cent;  and,  to  secure  the  payment  of  the  same,  the 
certificate  was  assigned  and  transferred  to  her.  In  con- 
sideration of  such  settlement  the  plaintiff  was  to  release 
and  satisfy  all  claims  of  whatsoever  nature  she  had  against 
him,  including  all  matters  arising  out  of  their  alleged 
partnership.  The  contract  was  reduced  to  writing,  signed 
by  the  parties,  and  complied  with  by  plaintiff,  but  when 
the  certificate  matured,  defendant  refused  to  indorse  the 
same  so  that  plaintiff  could  collect  her  half  of  it,  or  to  pay 
the  money ;  and  hence  this  suit. 

The  complaint  sets  out  the  contract  in  full,  alleges  its 
execution  under  seal,  the  compliance  therewith  by  the 
plaintiff,  the  breach  thereof  by  the  defendant,  and  prays 
for  a  decree  against  him  for  $10,400  for  the  sale  of  the 
certificate  of  deposit,  and  for  the  application  of  the  pro- 
ceeds thereof  to  the  payment  of  such  sum,  and  of  the 
costs  and  disbursements  of  the  suit.  The  answer  admits 
the  making  of  the  contract,  but  denies  that  there  was  any 
consideration  therefor,  and  avers  that  defendant  was  in- 
duced to  execute  it  thrQUgh  fear  and  duress.  The  plaintiff 
had  decree  in  the  court  below,  and  the  defendant  appeals. 

Affirmed. 


534  Dickey  v.  Jackson.  [47  Or. 

For  appellant  there  was  a  brief  over  the  names  of  Ed- 
ward and  A.  R.  Mendenhall,  with  an  oral  arguoient  by  Mr. 
Alfred  Rush  MendenhalL 

For  respondent  there  was  a  brief  over  the  name  of 
Northup  &  Northup,  with  an  oral  argument  by  Mr,  Henry 
Hale  Northup, 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

Sundry  motions  and  demurrers  were  sustained  or  over- 
ruled by  the  trial  court,  but  the  errors  assigned  on  account 
of  such  rulings  are  not  of  sufficient  importance  to  merit 
an  extended  consideration. 

The  complaint  alleges  that  the  contract  was  under 
seal,  which  is  of  itself  prima  facie  evidence  of  a  consid- 
eration :  B.  &  C.  Comp.  §  765.  And,  moreover,  it  appears 
from  the  complaint  that  it  was  in  settlement  and  as  a  com- 
promise of  certain  claims  made  by  the  plaintiff  against 
the  defendant  in  good  faith,  and  was  therefore  supported 
by  a  sufficient  consideration  :  Smith  v.  Farra,  21  Or.  395 
(28  Pac.  241,  20  L.  R.  A.  115).  The  portions  of  the  answer 
striken  out  consisted  principally  of  an  extended  and  some- 
what detailed  narrative  of  the  conduct,  temper  and  dis- 
position of  the  plaintiff,  and  the  relationship  of  th«  par- 
ties from  the  time  of  their  first  acquaintance  to  the  be* 
ginning  of  this  suit,  and  was  either  evidentiary  in  charac- 
ter or  wholly  immaterial  to  any  issue  in  the  case.  There 
is  no  averment  that  the  consideration  of  the  contract  was 
the  illicit  relations  of  the  parties,  or  that  such  considera- 
tion was  immoral,  and  therefore  the  character  or  conduct 
of  the  parties  have  no  particular  bearing  upon  the  real 
issues,  except  as  they  may  affect  the  defense  that  the  con- 
tract was  executed  by  the  defendant  through  fear  and 
duress.  The  only  questions  presented  by  the  pleadings  are 
whether  the  contract  or  agreement  of  settlement  was  sup- 


Feb.  1906.]  Dickey  v,  Jackson.  535 

ported  by  a  sufficient  consideration,  and,  if  so,  whether 
the  defendant  executed  it  voluntarily. 

1.  The  plaintiff  asserts  that  the  consideration  for  the 
agreement  was  the  settlement  and  compromise  of  bona  fide 
claims  which  she  had  against  the  defendant,  arising  out 
of  their  business  transactions  and  personal  relations,  while 
the  defendant's  position  is  that  there  was  no  ground  for 
such  claims,  and  that  they  were  not  made  in  good  faith, 
and  therefore  did  not  constitute  a  sufficient  considera- 
tion to  support  the  contract.  The  defendant  alleges  and 
testifies  that  he  left  Portland  in  1899,  and  went  to  Manila 
to  escape  from  the  plaintiff,  but  that  she  followed  him 
without  his  consent  and  against  his  will.  In  this  he  is 
contradicted,  not  only  by  the  testimony  of  the  plaintiff, 
but  by  his  own  letters  written  to  her  after  he  arrived  in 
Manila.  Before  he  had  been  permitted  to  land,  and  while 
still  in  quarantine,  he  wrote,  advising  her  of  his  arrival, 
telling  her  where  to  address  letters  to  him,  and  saying  he 
would  write  again  when  he  got  ashore.  From  that  time 
until  she  left  Portland  he  was  in  correspondence  with  her, 
and  his  letters  are  in  evidence.  On  August  19th  he  wrote 
that  he  had  purchased  the  interest  of  his  partner  in  the 
business,  and  asked  her  to  come  to  Manila  as  soon  as  she 
could.  On  the  next  day  he  wrote  again,  telling  her  of  a 
line  of  steamers  which  she  could  take  direct  from  Port- 
land, and  asked  her  to  come  *'as  soon  as  you  get  things 
straightened  up.  I  need  you.  Come  soon."  And  added, 
"I  think  we  can  make  all  the  money  we  need  in  the  next 
five  years/*  The  plaintiff  testified  that  after  she  arrived 
in  Manila  defendant  said  to  her:  **Little  girl,  work  hard. 
I  know  it  is  pretty  hard,  but  when  we  get  home  we  will 
be  all  right,  we  will  be  fixed  " ;  that  she  and  the  defend- 
ant were  supposed  to  be  partners ;  that  he  always  said 
the  money  made  would  belong  to  them  equally^  that  she 
negotiated  the  sale  of  the  business  in   1901,  and  after  it 


536  DicKKY  V.  Jackson.  [40  Or. 

was  completed,  the  defendant  divided  the  money  then  on 
hand  ($22,000)  and  gave  one-half  of  it  to  her  and  kept 
the  other  himself ;  that  when  they  arrived  home  they 
each  deposited  in  Ladd  &  Tilton's  bank  $11,000;  that 
when  they  got  to  the  bank  with  the  money  the  defend- 
ant said  :  "*Now,  we  will  put  the  money  in  the  bank;  I 
want  to  put  this  money  in  so  and  so.'  Well,  I  said  :  'You 
want  to  put  it  in  so  I  can  draw,  and  so  you  can  draw.' 
He  said  :  '  We  will  divide  it,  half  and  half ; '  and  he  said 
to  the  cashier :  *  You  had  better  put  it  in  Jackson  per 
Jackson.'" 

The  defendant  contradicts  the  plaintiff  in  many  partic- 
ulars and  asserts  that  she  was  working  for  him  while  in 
Manila  at  a  salary  of  $100  a  month,  and  had  no  interest 
in  the  business.  Whatever  the  truth  in  this  regard  may 
be,  enough  appears  to  show  that  at  the  time  the  agreement 
sued  upon  was  made,  plaintiff  was  claiming  one-half  the 
profits  of  such  business  as  a  partner,  and  that  such  claim 
had  some  foundation  in  fact  and  was  made  in  good  faith. 
The  agreement  was  entered  into  in  settlement  of  and  as 
a  compromise  of  the  dispute  or  controversy,  and  will 
therefore  be  enforced  if  voluntarily  executed  by  the  de- 
fendant. "  If  there  be  a  dispute  between  parties,"  says 
the  Supreme  Court  of  West  Virginia,  "in  which  one  of 
the  parties  not  only  makes  a  bona  fide  claim  against  the 
other,  but  there  is  in  law  and  fact  some  foundation  for 
his  claim,  though  whether  it  be  well  founded  may  be 
doubtful,  and  the  party,  who  is  thus  claimed  to  be  sub- 
ject to  a  liability,  to  settle  the  dispute  and  avoid  litiga- 
tion, agrees  to  pay  the  other  party  a  sum  of  money  or 
makes  to  him  a  promise  to  do  anything  else,  such  prom- 
ise is  based  on  a  sufficient  consideration,  and  may  be  en- 
forced": Davisson  v.  Ford,  23  W.  Va.  617.  The  same 
principle  was  applied  in  Smith  v.  Farra,  21  Or.  395  (20 
L.  R.  A.  115,  28  Pac.  241), 


Feb.  1906.]  '  Dickey  v.  Jackson.  537 

2.  The  defendant  testifies  that  plaintiff  is  a  desperate 
and  dangerous  woman ;  that  she  threatened  him  with  a 
criminal  prosecution  for  seduction,  and  with  great  per- 
sonal violence,  even  to  the  taking  of  his  life,  if  he  did  not 
sign  the  agreement  in  question,  and  that  by  reason  of 
such  threats  and  through  fear  of  such  violence  he  exe- 
cuted the  same.  In  this  he  is  not  only  contradicted  by 
the  plaintiff,  but  by  Judge  Northup,  who  acted  for  her  in 
making  the  settlement.    The  latter  says  : 

"I  communicated  with  Mr.  Jackson  in  regard  to  the 
statement  of  Mrs.  Dickey,  the  plaintiff.  I  was  in  commu- 
nication with  Mr.  Jackson  nearly  two  weeks.  Mr.  Jack- 
son was  in  my  office  several  times,  I  cannot  say  how  many 
times,  and  we  were  negotiating  in  regard  to  the  settle- 
ment. I  informed  Mr.  Jackson  that  there  would  be  liti- 
gation unless  there  was  a  settlement.  Mr.  Jackson  said 
immediately  that  he  did  not  want  any  litigation ;  he  was 
willing  to  settle  if  we  could  come  to  terms.  Various  sums 
were  named,  until  finally,  on  the  26th  of  May,  1904,  Mr. 
Jackson,  Mrs.  Dickey  and  I,  were  in  the  office,  and  it  was 
agreed  that  the  sum  of  $10,000  and  $400  interest  on  the 
maturity  of  the  certificate  of  deposit  should  be  paid  to 
Mrs.  Dickey.  *  *  I  told  the  parties  at  that  time  that 
I  would  draw  the  papers  up.  For  some  reason  I  do  not 
now  recall  that  the  papers  would  not  be  ready  earlier  than 
Thursday,  the  28th.  This  was  on  Tuesday,  the  26th,  and 
I  told  the  parties  to  appear  in  my  office  on  Thursday,  the 
28th,  at  2  o^clock  in  the  afternoon.  On  Thursday,  the 
28th,  Mr.  Jackson  came  in  before  Mrs.  Dickey  appeared. 
I  had  the  papers  drawn,  and  handed  a  copy  to  Mr.  Jack- 
son, and  said  to  Mr.  Jackson,  *Read  this  paper  and  ex- 
amine it,  and  take  it  to  your  lawyer  and  see  that  it  is  all 
right.'  Mr.  Jackson  read  the  paper.  He  remarked  be- 
fore he  read  it,  *  No,  I  don't  want  any  lawyer,'  and  in  sub- 
stance I  think  he  said:  'lam  lawyer  enough  for  this 
matter.  I  know  what  I  want,'  or  words  to  that  effect. 
Thereupon  the  papers  were  executed,  Mrs.  Dickey  coming 
in  shortly  after,  and  after  both  parties  were  there  the  wit- 
nesses were  called   in,  the  papers  were  signed,  and  one 


538  Taylor  v,  Cohn.  [47  Or. 

copy  of  the  instrument  was  handed  to  Mr.  Jackson  and 
the  other  was  retained  by  Mrs.  Dickey,  who  gave  it  to  me 
to  keep  until  the  maturity*of  the  certificate." 

And  he  states  that  Mr.  Jackson  was  not  in  any  way 
averse  to  the  signing  of  this  agreement. 

"I  told  Mr.  Jackson  that  litigation  would  arise  unless 
there  was  a  settlement,  and  he  said  :  *No,  I  don't  want 
an}'  litigation.  I  want  to  keep  out  of  the  courts.'  That 
was  the  substance  of  what  he  said.  It  may  not  be  his 
exact  language." 

It  is  apparent,  therefore,  that  the  agreement  in  ques- 
tion was  voluntarily  executed  by  the  defendant  in  settle- 
ment, and  as  a  compromise  of  a  dispute  between  himself 
and  the  plaintiff  concerning  her  interest  or  rights  in 
property  held  by  him,  and,  as  such,  ought  in  justice  and 
equity  to  be  enforced.  The  decree  of  the  court  below  is 
affirmed.  Affirmed. 


Argaed  'M  January,  decided  27  February,  1906. 

TAYIiOB  t;.  COHN. 

M  Pac.  888. 

Thkatres— Contract  Created  by  Purchase  op  Ticket*— Torts. 

1.  A  purchaser  of  a  theatre  ticket  becomes  thereby  only  a  licensee,  and  such 
license  is  revocable  at  the  pleasure  of  the  seller,  the  latter  thereby  becoming  liable 
to  damages  for  the  breach  of  the  contract,  but  not  in  tort. 

Theatres  — Refusal  to  Permit  Use  of  Ticket  — Complaint  in  Action 
FOR  Damages. 

2.  A  complaint  alleging  that  defendant  is  the  proprietor  of  a  theatre;  that 
plaintltr  purchased  of  him  tickets  therefor;  that  they  were  presented  at  the 
proper  time  and  place,  but  defendant  refused  to  allow  him  to  occupy  the  seats; 
and  that  by  reason  thereof  he  was  damaged  ^  states  a  cause  of  action  for  breach 
of  contract,  and  other  allegations  as  to  the  color  of  plaintifT  and  the  circum- 
stances of  the  refusal  may  be  rejected  as  surplusage. 


♦  Note.— The  Nature  and  Extent  of  the  Right  Acquired  by  the  Holder  of  a 
Ticket  to  a  Theatre  is  the  subject  of  a  note  to  the  case  of  Homey  v.  Xixon^  1 
L.  R.  A.  (N.  S.)  1184.  See,  also,  CollUter  v.  Hayman,  1  L.  R.  A.  (N.  8.)  1188.  for  a 
note  on  the  right  of  a  tlieatrical  manager  to  impose  restrictions  on  the  privilege 
of  admission  to  his  show,  with  special  reference  to  the  practice  of  selling  tickets 
on  the  sidewalks  near  the  theatre  and  about  hotels. 

As  to  violating  the  civil  rights  of  negroes  in  restaurants,  trains,  schools  and 
theatres,  see  People  v.  King^  1  L.  R.  A.  293:  6  Am.  St.  Rep.  389;  Ferguson  v.  Oies, 
14  Am.  St.  Rep.  576,  584 :  9  li.  R.  A.  589 ;  Louisville,  X.  O.  d'  T.  Ry.  Co,  v.  State,  14 
Am.  St.  Rep.  599 ;  Lehew  v.  Brummell,  23  Am.  St.  Rep.  895 :  11  L.  R.  A.  828 ;  Younger 
v.  Judah,  16  L.  R.  A.  558  (briefs):  88  Am.  St.  Rep.  527.—  Reporter. 


Feb.  1906.]  Taylor  v.  Cohn.  539 

From  Multnomah  :   Arthur  L.  Frazer,  Judge. 

Action  by  Oliver  Taylor  against  S.  Morton  Cohn  for 
refusing  to  allow  plaintiff  to  occupy  a  box  in  defendant's 
theatre.  A  demurrer  to  the  complaint  was  sustained,  and 
plaintiff  appeals.  Reversed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr,  McCants  Stewart. 

For  respondent  there  was  a  brief  over  the  name  of  Bern- 
stein &  Coheny  with  an  oral  argument  by  Mr,  Alexander 
Bernstein, 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

This  is  an  appeal  from  a  judgment  in  favor  of  the  de- 
fendant, on  demurrer  to  a  complaint.  The  complaint 
alleges  that  plaintiff  is  a  colored  person  residing  in  the 
City  of  Portland,  and  that  the  defendant  is  the  owner 
and  proprietor  of  a  theatre  or  place  of  amusement  in  that 
city;  that  on  or  about  the  1st  of  August,  1904,  the  plain- 
tiff went  to  the  box  office  of  the  defendant  and  purchased 
of  his  agent  tickets  for  five  box  seats  in  his  theatre  for 
a  certain  performance;  that  thereafter,  and  during  the 
hours  of  general  ad  mission  and  before  the  performance,, 
plaintiff,  conducting  himself  above  reproach,  scorn  or 
ridicule,  applied  for  admission  to  such  theatre,  present- 
ing the  tickets  aforesaid  ;  that  to  his  great  shame,  morti- 
fication and  humiliation  the  defendant's  agents  refused 
to  allow  the  plaintiff  the  accommodation  of  such  seats,  and 
said  to  him,  "You  are  colored  people,  and  it  is  a  rule  of 
this  house  not  to  allow  negroes  to  occupy  boxes,  and  you'll 
have  to  exchange  your  tickets";  that  plaintiff  refused  to 
exchange  his  tickets,  and  was  thereupon  requested  by  de- 
fendant's agents  to  leave  the  theatre;  that  he  was  accom- 
panied by  his  wife  and  had  as  his  guests  three  friends,, 
and  was  greatly  disappointed,  disturbed  in  mind,  insulted 
and  humiliated  by  defendant's  refusal  to  allow  him  equal 


540  Taylor  v.  Cohn.  [47  Or. 

accommodations  in  the  theatre  with  other  persons;  that 
by  reason  thereof  he  has  been  embarassed  and  damaged 
in  the  sum  of  $5,000,  and  demands  judgment  in  that 
amount.  If  the  complaint  states  a  cause  of  action  in  tort 
or  for  trespass  only,  the  demurrer  was  unquestionably 
properly  sustained,  regardless  of  the  question  whether  in 
this  State  persons  can  be  discriminated  against  on  ac- 
count of  color. 

1.  A  ticket  to  a  theatre  or  other  place  of  amusement  is 
a  mere  license,  revocable  at  the  pleasure  of  the  theatrical 
manager.  It  is  true  it  constitutes  a  contract  between  the 
proprietor  and  the  purchaser  of  the  ticket,  and  whatever 
contractual  duties  grow  out  of  such  relation  the  proprietor 
is  bound  to  perform  or  respond  in  damages  for  breach  of 
his  contract,  but  he  is  not  liable  in  an  action  for  trespass 
or  in  tort.  "A  theatre  ticket,"  say  the  editors  of  the  Enc. 
PI.  &  Pr.,  **being  a  mere  license  to  the  purchaser,  which 
may  be  revoked  at  the  pleasure  of  the  theatrical  manager, 
upon  such  revocation,  if  the  person  attempts  to  enter,  or 
if,  having  previously  entered,  he  refuses  to  leave  upon 
request,  he  becomes  a  trespasser,  and  may  be  prevented 
from  entering  or  may  be  removed  by  force,  and  can  main- 
tain no  action  of  tort  therefor.  His  only  remedy  is  by  an 
action  on  the  contract  to  recover  the  money  paid  for  the 
ticket  and  damages  sustained  by  the  breach  of  the  con- 
tract implied  by  the  sale  and  delivery  of  such  ticket":  21 
Enc.  PI.  &  Pr.  647.  Among  the  authorities  sustaining 
this  doctrine  are  Wood  v.  Leadbitter^  13  M.  &  W.  838;  Mc- 
Crea  v.  Marsh,  12  Gray  (Mass.),  211  (71  Am.  Dec.  745); 
Burton  v.  Scherpf,  1  Allen  (Mass.),  133  (79  Am.  Dec.  717); 
Furcell  v.  Daly,  19  Abb.  N.  C.  (N.  Y.)  301;  Hoimey  \\  Nixon, 
213  Pa.  20  (1  L.  R.  A.,  N.  S.  1184,  61  Atl.  1088);  Collister  v. 
Hayman,  71  App.  Div.  316  (75  N.  Y.  Supp.  1102);*  And 
it  makes  no  difference  whether  the  ticket  is  one  for  gen- 

*  Note.— Tbi8  case  was  affirmed  by  the  court  of  appeals :  1  L.  R.  A.^  N.  S.  IMS. 


Feb.  1906.]  Taylor  v.  Cohn.  541 

eral  admission  or  for  particular  seats  or  a  designated  por- 
tion of  the  house. 

The  intimation  in  Drew  v.  Peer,  93  Pa.  234,  that  a  theatre 
ticket  for  a  particular  seat  is  more  than  a  license,  and  is 
in  the  nature  of  a  lease,  entitling  the  holder  to  the  pos- 
session of  the  seat  during  the  performance  for  which  it 
was  sold,  was  recently  declared  by  the  Supreme  Court  of 
that  State  in  Homey  v.  Nixon,  213  Pa.  20  (1  L.  R.  A.,  N.  S. 
1184,  61  Atl.  1088),  not  to  be  the  law.  In  the  latter  case 
the  plaintiff  had  purchased  two  reserved  seats  for  a  per- 
formance at  a  theatre,  but  before  the  performance  the  city 
authorities  ordered  certain  end  seats  to  be  removed.  In 
the  confusion  resulting  from  such  removal  the  seats  of  the 
plaintiff  were  sold  to  other  parties.  When  he  presented 
the  tickets  for  admission,  he  was  told  he  could  not  be  given 
the  seats  called  for,  but  was  offered  others  farther  back. 
He  refused  to  accept  them,  and  becoming  noisy  he  was 
invited  to  go  into  the  corridor  where  the  money  paid  for 
the  tickets  was  tendered  to  him,  but  he  refused  to  accept 
it.  He  subsequently  brought  an  action  of  trespass  to 
recover  damages  for  the  inconvenience  and  humiliation 
suffered,  but  it  was  held  that  such  actiop  could  not  be 
maintained.  The  court  said  :  '*The  case  as  presented  by 
the  plaintiff  has  not  a  single  tortious  feature.  He  had 
purchased  a  ticket  calling  on  its  face  for  a  seat  which  he 
insisted  on  having,  and  it  was  the  duty  of  the  defendants 
to  give  it  to  him  ;  but  their  failure  to  perform  that  duty 
was  simply  a  failure  to  perform  their  contract  with  the 
holder  of  the  ticket,  and  for  such  failure  the  remedy  as 
in  any  other  simple  breach  of  contract,  is  in  assumpsit  for 
damages  for  the  breach."  And,  after  alluding  to  the  rule 
.applicable  to  common  carriers,  the  court  continues:  "The 
proprietor  of  a  theatre  is  a  private  individual,  engaged  in 
a  strictly  private  business,  which,  though  for  the  enter- 
tainment of  the  public,  is  always  limited  to  those  whonL 


542  Taylor  v.  Cohn.  [47  Or. 

he  may  agree  to  admit  to  it.  There  is  no  duty,  as  in  the 
case  of  a  common  carrier,  to  admit  every  one  who  may 
apply  and  be  willing  to  pay  for  a  ticket,  for  the  theatre 
proprietor  has  acquired  no  peculiar  rights  and  privileges 
from  the  State,  and  is  therefore  under  no  implied  obliga- 
tion to  serve  the  public.  When  he  sells  a  ticket,  he  creates 
contractual  relations  with  the  holder  of  it,  and  whatever 
duties  on  his  part  grow  out  of  these  relations  he  is  bound 
to  perform,  or  respond  in  damages  for  the  breach  of  his 
contract,  if  it  is  of  that  only  that  complaint  can  be  made." 
It  is  clear,  therefore,  that  plaintiff  cannot  maintain  an 
action  in  tort  against  the  defendant  to  recover  damages 
for  the  wrongful  refusal  to  permit  him  to  occupy  the  seats 
purchased,  nor  for  the  humiliation  or  inconvenience  at- 
tending such  refusal. 

2.  The  defendant  is  liable,  however,  for  a  breach  of  con- 
tract, and  the  question  remains  whether  the  complaint 
does  not  state  facts  sufficient  to  constitute  such  a  cause 
of  action.  All  forms  of  action  have  been  abolished  by 
statute  (B.  &  C.  Comp.  §  1),  and  the  only  requirement  is 
that  the  complaint  contain  a  concise  statement  of  the 
facts  constituting  the  cause  of  action  :  B.  &  C.  Comp.  §  67. 
Now,  the  complaint  states  that  defendant  is  the  proprietor 
of  a  theatre ;  that  on  or  about  a  certain  date  the  plaintiff 
purchased  of  him  a  ticket  for  seats  at  a  certain  perform- 
ance in  his  theatre ;  that  such  tickets  were  presented  at 
the  proper  time  and  place,  but  defendant  refused  to  per- 
mit the  plaintiff  to  enter  the  theatre  or  occupy  such  seats; 
and  by  reason  thereof  he  was  damaged  in  a  certain  sum. 
This  would  seem  to  be  a  sufficient  statement  of  a  cause  of 
action  for  a  breach  of  contract.  The  other  allegations  of 
the  complaint  may  be  treated  as  surplusage,  and  it  stand 
as  an  action  to  recover  for  breach  of  the  contract  made  by 
the  defendant  with  the  plaintiff  when  he  sold  the  theatre 


May,  1906.]  State  v.  Watson.  543 

tickets  to  him,  and  as  a  consequence  the  demurrer  ought 
to  have  been  overruled. 

The  judgment  will  be  reversed,  and  the  cause  remanded 
for  such  further  proceedings  as  may  be  proper,  not  incon- 
sistent with  this  opinion.  Reversed. 


Argued  1  March,  decided  1  May,  1906. 

STATE   V.  WATSON. 

85  Pac.  838. 

Arson  — t  Evidence  —  Remoteness. 

1.  In  a  prosecution  for  arson,  in  wtilch  the  State  claimed  that  defendant  at- 
tempted to  burn  the  building  by  saturating  a  part  of  it  with  kerosene,  testimony 
that  three  or  four  days  after  the  flre,  witness  picked  up  some  of  the  earth  under 
the  building,  and  that  It  smelled  as  if  kerosene  had  been  poured  over  it,  was  not 
objectionable  as  too  remote. 

Arson— Evidence  op  Ownership  of  Building. 

2.  Where,  in  a  prosecution  for  arson,  the  ownership  of  the  building  was  laid 
in  a  person  alleged  to  have  been  a  subtenant  under  defendant,  a  receipt  for  rent, 
signed  by  defendant,  was  competent  on  the  question  of  ownership. 

IN.STRUCTION  —  Assuming  Admitted  Facts. 

3.  Trial  Judges  may  mention  in  their  instructions  &cts  as  to  which  there  is 
no  dispute,  without  invading  the  province  of  the  Jury. 

From  Douglas  :  James  W.  Hamilton,  Judge. 

William  Henry  Watson  was  indicted  for  arson  in  set- 
ting  fire  to  a  building  alleged  to  have  been  the  property 
of  G.  W.  Wight,  who  subleased  from  defendant,  using  the 
building  as  a  hotel.  Defendant  rented  a  room,  and  in  this 
the  fire  started.  Defendant  appeals  from  a  judgment  of 
conviction.  Affirmed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr.  William  Wilshire  Cardwell. 

For  the  State  there  was  a  brief  with  oral  arguments  by 
Mr.  Andrew  Murray  Crawford,  Attorney  General,  and  Mr. 
George  M  Brown,  District  Attorney. 


544  State  v.  Watson.  [47  Or. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

The  defendant  was  charged,  in  an  information  filed  by 
the  district  attorney,  with  the  crime  of  arson,  by  burning 
the  dwelling  house  of  George  H.  Wight.  He  was  con- 
victed, sentenced  to  the  penitentiary,  and  appeals. 

1.  The  theory  of  the  State  was  that  the  defendant  at- 
tempted to  burn  the  building  by  saturating  the  outside  of 
a  part  thereof,  and  the  inside  of  a  room  rented  by  him  of 
Wight  with  kerosene  and  setting  it  afire.  Wight  was  a 
witness  for  the  State,  and  was  allowed  to  testify  over  de- 
fendant's objection  and  exception  that  three  or  four  days 
after  the  fire  he  examined  the  ground  under  the  room 
rented  by  him  to  defendant  and  found  it  wet;  that  he 
picked  up  some  of  the  earth  and  it  smelled  as  if  kerosene 
had  been  poured  over  it.  The  objection  urged  to  the  tes- 
timony is  that  it  was  too  remote ;  but  it  was  competent  as 
corroborating  the  other  testimony  tending  to  show  that 
kerosene  was  freely  used  in  starting  the  fire.  Its  value  was 
for  the  jury. 

2.  To  prove  that  Wight  was  the  owner  of  the  building,, 
for  the  purpose  of  this  case,  the  prosecution  gave  in  evi- 
dence a  receipt  to  him  for  rent  signed  by  the  defendant,, 
whom  it  was  claimed  was  Wight's  landlord.  After  defend- 
ant had  been  arrested,  and  while  he  was  incarcerated  in 
the  county  jail,  Wight  sent  money  with  which  to  pay  the 
rent  to  the  sheriff  who  delivered  it  to  the  defendant  and 
took  his  receipt  therefor,  and  we  can  see  no  objection  to- 
the  competency  of  such  receipt.  It  was  the  voluntary  act 
of  the  defendant,  and  was  evidence  tending  to  contradict 
his  contention  that  he,  and  not  Wight,  was  the  owner  of 
the  building. 

Various  articles  were  taken  from  the  room  rented  by 
the  defendant  from  Wight  during  and  after  the  fire,  such 
as  a  coal  oil  can,  some  burlap  sacks  and  excelsior  satu- 
rated  with  oil,  a  telescope  valise,  etc.    The  evidence  shows 


Mar.  1906.]  Stein  v.  Phillips.  545 

that  these  articles  were  safely  preserved  from  the  time 
they  were  taken  from  the  room  until  offered  in  evidence 
on  the  trial,  and  were  sufficiently  identified  to  be  admitted 
in  evidence  as  tending  to  show  the  origin  and  cause  of 
the  fire. 

3.  The  court  in  its  instructions  said,  among  other  things, 
that  the  testimony  tended  to  show  that  the  defendant 
leased  or  rented  the  room  where  it  is  claimed  the  fire  oc; 
curred,  and  that  there  were  found  in  such  room  a  can  of 
coil  oil  and  other  materials.  It  is  claimed  that  in  so  doing 
it  invaded  the  province  of  the  jury.  There  was  no  dis- 
pute in  the  testimony  as  to  the  facts  mentioned  by  the 
court.  The  witnesses  for  the  State  and  the  defendant  agree 
upon  that  question,  and  there  was,  therefore,  no  error  in 
the  instruction:  State  v.  Morey,  25  Or.  241  (36  Pac.  573). 

The  judgment  is  affirmed.  Affirmed. 


Argued  24  January .  decided  20  March,  1906. 

STEIN  V.  PHILLIPS. 

84  Pac.  793. 

RsroRMiiTO  Wbitten  Contracts  fob  Mutual  Mistake. 

1.  A  party  seeking  the  reformaUoD  of  a  writing  on  the  ground  of  mistake 
must  show  decisively  what  the  mistake  was  and  that  it  was  mutual,  as  to  which 
points  he  must  overcome  the  strong  presumption  that  a  written  contract  cor- 
rectly expresses  the  intent  of  its  signers. 

EviDKNCB  or  Mutual.  Mistake. 

2.  The  evidence  in  this  case  does  not  clearly  show  that  the  writing  in  question 
incorrectly  states  the  agreement  of  the  parties,  and  a  reformation  must  be  denied. 

From  Multnomah  :  Alfred  F.  Sears,  Jr.,  Judge. 

Statement  by  Mr.  Chief  Justice  Bean. 

This  is  a  suit  by  Philip  Stein  against  R.  E.  Phillips  and 
his  wife  to  reform  a  written  instrument,  and  for  specific 
performance  as  reformed.  For  some  time  prior  to  May  2, 
1903,  the  plaintiff  occupied  a  store  in  a  building  in  Port- 
land belonging  to  Mrs.  Grant,  and  the  defendant  used  one 

47  Or. 86 


546  Stein  v.  Phillips.  [47  Or. 

adjoining  on  the  north.  Mrs.  Grant  contemplated  con- 
structing a  new  building  on  the  premises,  and  the  defend- 
ant, who  was  desirous  of  securing  better  accommodations 
for  his  business,  applied  some  two  or  three  months  prior 
to  the  date  mentioned  to  rent  the  new  building  when  com- 
pleted. While  his  application  was  pending,  and  on  May  2, 
1903,  he  entered  into  the  following  written  agreement  with 
the  plaintiff: 

"This  is  an  agreement  between  R.  E.  Phillips,  of  the  first 
part,  and  Philip  Stein,  party  of  the  second  part,  to  wit: 
It  is  understood  that  the  basis  of  the  contract  rests  upon 
the  provisions  that  the  party  of  the  first  part,  R.  E.  Phillips, 
does  become  the  lessee  of  a  certain  building  to  be  erected 
on  the  corner  of  Third  and  Pine  streets,  fronting  fifty  feet 
on  Third  Street  and  one  hundred  feet  on  Pine  Street,  three 
stories  high.  The  said  party  of  the  first  part,  R.  E.  Phillips, 
does  hereby  agree  to  let  the  party  of  the  second  part,  Philip 
Stein,  share  equally  with  him  the  profits  or  losses  that  may 
accrue  from  any  mutual  use  that  they  may  make  of  said 
lease.  In  consideration  of  the  above,  the  party  of  the 
second  part,  Philip  Stein,  agrees  to  advance  money  to  bay 
furniture  for  rooms  upstairs  (thirty-four  in  number)  not 
to  exceed  $2,000 ;  same  furniture  to  be  purchased  by  R.  E. 
Phillips  and  Philip  Stein  jointly.  The  party  of  the  first 
part,  R.  E.  Phillips,  agrees  to  pay  the  party  of  the  second 
part,  Philip  Stein,  one-half  the  purchase  price  of  said  fur- 
niture in  installments  of  monthly  payments  not  less  than 
$20  per  month.  It  is  further  understood  that  R.  E.  Phillips 
agrees  to  pay  to  Philip  Stein  one-half  the  loss,  if  any,  in 
case  of  business  failure.  Also  R.  E.  Phillips  agrees  to  let 
profits  accruing  from  said  building  to  apply  to  payment  of 
said  one-half  purchase  price  of  said  furniture. 

R.  E.  Phillips. 

Phil  Stein." 

Thereafter  on  July  28th  the  defendant  jointly  with  his 
wife  secured  a  lease  of  the  proposed  building  for  five  years 
at  a  monthly  rental  of  $425  with  the  privilege  of  an  exten- 
sion for  another  five  years  at  $500  a  month.    About  the 


Mar.  1906.]  Stkin  v.  Phillips.  547 

time  the  building  was  completed  he  rented  the  second  and 
third  stories  thereof  for  a  lodging  house,  and  soon  there- 
after plaintiff  tendered  to  him  or  offered  to  furnish  $2,000 
with  which  to  purchase  furniture  for  a  lodging  house  in 
the  second  and  third  stories,  but  the  defendant  refused  to 
accept  it  or  otherwise  to  recognize  plaintiff's  rights  in  the 
building,  except  that  he  offered  to  rent  him  a  storeroom 
therein  at  $75  a  month.  The  plaintiff  thereupon  brought 
this  suit  to  enforce  specific  performance  of  the  agreement 
of  May  2d.  In  his  original  complaint  he-set  out  the  agree- 
ment in  full ;  alleged  that  after  the  making  thereof  the 
defendant  secured  a  lease  of  the  building,  but  failed  and 
refused  to  comply  with  such  agreement,  and  prayed  for  a 
decree  for  the  specific  performance  thereof  and  for  the 
appointment  of  a  receiver  to  take  possession  of  the  build- 
ing, collect  the  rents,  etc.  A  demurrer  to  the  complaint 
was  sustained,  and  plaintiff  thereupon  filed  an  amended 
complaint  alleging,  in  substance,  that  the  contract  between 
himself  and  the  defendant  was  that  they  should  be  equal 
partners  in  the  lease  thereafter  to  be  acquired  by  the  de- 
fendant ;  but  that  by  mutual  mistake  the  written  memoran- 
dum did  not  correctly  state  the-terms  of  their  agreement, 
and  praying  for  a  decree  reforming  that  instrument,  and 
for  other  relief  as  in  the  original  complaint.  The  answer 
denied  the  material  allegations  of  the  amended  complaint, 
and,  for  a  further  defense,  alleged  that  on  May  2,  1903, 
plaintiff  and  defendant  entered  into  an  agreement  whereby 
it  was  understood  and  agreed  that  in  consideration  of 
plaintiff's  refraining  from  applying  for  a  lease  of  the  pro- 
posed building  the  defendant  would,  iu  case  he  secured 
the  building,  sublet  to  plaintiff  a  storeroom  on  the  ground 
floor  at  a  monthly  rental  of  $75,  and  that  they  would  con- 
duct and  carry  on  jointly  a  lodging  house  in  the  upper 
stories ;  that  plaintiff  was  to  advance  $2,000  for  the  purpose 
of  purchasing  furniture  for  such  lodging  house  and  de- 


548  Stein  i;.  PdiLLiPs.*  [47  Or. 

fendant  would  repay  him  ohe^half  thereof;  that  the  con- 
tract set  out  in  the  complaint  was  prepared  and  entered 
into  as  a  memorandum  of  such  contract ;  that  in  violation 
of  the  agreement  the  plaintiff  made  application  to  the 
owner  to  rent  the  building,  offering  $450  a  month  for  it, 
with  knowledge  that  the  defendant  had  bid  1425  a  mouth  ; 
that  the  applications  of  both  parties  were  rejected  by  the 
owner  and  the  building  was  subsequently  leased  to  the  de- 
fendant and  his  wife  jointly ;  that  plaintiff  has  no  interest 
whatever  in  such  lease  and  never  had  any  interest  therein. 
The  reply  put  jn  issue  the  material  allegations  of  the 
answer  and,  upon  a  trial,  a  decree  was  rendered  in  favor 
of  the  plaintiff,  and  defendant  appeals.  Reversed. 

For  appellant  there  was  a  brief  over  the  name  of  Dolph, 
Mallory,  Simon  &  Gearin,  with  an  oral  argument  by  Mr. 
Joseph  Simon, 

For  respondent  there  was  a  brief  over  the  names  of 
Bernstein  &  Cohen  and  Carey  &  MaySy  with  an  oral  argu- 
ment by  Mr,  Alexander  Bernstein. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

The  written  agreement,  as  we  interpret  it,  did  not  vest 
in  the  plaintiff  any  right  or  interest  in  the  leasehold  es- 
tate which  it  was  contemplated  the  defendant  would  sub- 
sequently acquire.  It  is  true  the  proposed  lease  was  the 
basis  of  the  contract  between  the  parties,  and  such  contract 
was  contingent  upon  the  defendant's  subsequently  becom- 
ing the  *'lessee"  of  the  building,  but  the  agreement  was 
that  if  the  defendant  secured  the  lease  he  would  permit  the 
plaintiff  to  share  equally  with  him  in  the  profits  and  losses 
that  might  "accrue  from  any  mutual  use"  that  they  might 
make  of  it.  In  consideration  of  which  plaintiff  agreed  to 
advance  $2,000  to  purchase  furniture  for  the  upper  stories 
of  the  building,  the  defendant  to  repay  him  one-half  of  the 
money  so  advanced  in  monthly  installments  and  to  share 


Mar.  1906.]  Stein  v,  Phillips.  549 

in  the  losses  in  case  of  a  business  failure.  The  agreement 
plainly  contemplated  that  defendant  should  become  the 
lessee  of  the  building,  and  that  the  lease  should  be  taken 
and  held  by  him  in  his  own  right,  but  that  he  and  the 
plaintiff  should  share  equally  in  the  profits  and  losses  of 
any  mutual  use  they  might  make  of  it.  By  such  agreement 
the  plaintiff  acquired  no  interest  in  the  leasehold  estate, 
as  such,  any  more  than  he  would  have  acquired  in  the  title, 
had  the  contract  been  made  in  viewof  the  defendant's  pur- 
•chasing  the  property.  There  was  no  agreement  that  plain- 
tiff should  be  a  partner  in  the  lease,  but  it  was  to  be  the 
6ole  property  of  the  defendant,  and  the  plaintiff's  rights 
were  confined  to  such  mutual  use  as  the  parties  thereafter 
might  make  of  the  building.  A  breach,  therefore,  of  the 
•contract  by  the  defendant  would  not  entitle  the  plaintiff 
to  a  decree  adjudging  him  to  be  the  owner  of  a  one-half 
interest  in  the  lease, 

1.  The  plaintiff  contends,  however,  that  the  contract,  as 
actually  made,  was  that  he  and  the  defendant  were  to  be 
partners  and  equal  owners  in  the  lease  which  defendant 
was  to  secure,  and  that  by  mutual  mistake  the  writing  does 
not  truly  express  the  terms  of  the  contract  between  them. 
Upon  this  issue  the  burden  of  proof  is  with  the  plaintiff. 
.He  must  show  by  clear  and  satisfactory  proof,  not  only  that 
there  was  a  mistake  in  the  writing,  but  that  such  mistake 
was  mutual  and  shared  in  by  both  parties :  Lewis  v.  Lewia^ 
5  Or.  169 ;  Stephens  v.  Murton,  6  Or.  193 ;  Epstein  v.  State 
Ins,  Co,,  21  Or.  179  (27  Pac.  1045);  Kleinsorge  v.  Rohsey  25 
Or.  51  (34  Pac.  874);  Mitchell  v.  Holman,  30  Or.  280  (47 
Pac.  616).  ^*The  rule  is  well  settled,"  says  Trayer,  J.,  in 
Harrison  v.  Hartford  Ins.  Co,  (C.  C.)  30  Fed.  862,  **that  an 
application  to  reform  a  written  contract  on  the  ground  of 
accident  or  mistake  must  be  supported  by  clear  and  satis- 
factory proof,  otherwise  it  will  not  be  granted.  If  the  tes- 
timony is  conflicting,  or  of  such  undecisive  character  as 


550  Stein  v.  Phillips.  [47  Or. 

to  raise  a  substantial  doubt  in  the  rainds  of  the  court,  the 
contract  as  written  must  stand.  Besides  the  ordinary  bur- 
*  den  of  proof  which  rests  upon  every  litigant  who  holds  the 
affirmative  of  an  issue,  there  is  in  this  class  of  cases  the 
additional  burden  of  overcoming  the  strong  presumption 
created  by  the  contract  itself,  which  the  proceeding  seeks 
to  reform." 

2.  Now,  the  evidence  consists  principally  of  the  testi- 
mony of  the  two  contracting  parties  and  is  in  direct  con- 
flict in  many  important  particulars.  The  plaintiff  testifies 
that  defendant  told  him,  two  or  three  months  before  the 
contract  was  made,  that  the  old  buildings  on  the  property 
were  to  be  torn  down  and  a  new  one  erected,  and  that  if  he 
(witness)  wanted  to  "get  in  on  it"  he  would  try  to  get  the 
building;  that  he  (witness)  said  :  "All  right;  I  want  to  get 
a  store ;"  that  defendant  afterwards  represented  to  him  that 
he  had  made  several  attempts  to  get  th«  building  and 
finally  told  him  that  the  property  had  been  so  divided  up 
by  the  owners  that  he  did  not  care  whether  he  got  the  pro- 
posed building  or  not,  and  did  not  think  he  would  take  a 
lease ;  that  witness  then  said  to  him  :  "If  that  is  the  case^ 
I  am  going  after  the  building,  I  want  a  store";  that  wit- 
ness thereupon  had  an  interview  with  the  agent  of  the 
owner  and  told  him  that  he  "wanted  to  get  a  store  and  it 
necessary  I  would  take  the  building  in  order  to  secure 
the  stores";  that  the  agent  said  to  him  that  other  parties 
were  then  negotiating  for  the  building  and  until  he  heard 
from  them  he  could  not  make  any  contract  with  reference 
to  it,  but  that  most  likely  he  (witness)  would  be  able  to 
to  get  a  store  in  any  event  because  the  other  parties,  if 
they  secured  the  building,  would  have  a  store  to  let.  He 
continues  that  he  made  other  efforts  to  secure  the  building, 
but  could  not  do  so  ;  that  he  was  afterwards  informed  that 
the  defendant  had  rented  the  building  and  called  to  see 
him  about  it,  and  was  told  that  the  report  was  true,  and 


Mar.  1906.]  Stein  v.  Phillips.  551 

witness  said  to  him  :  "You  said  you  would  make  me*a  prop- 
osition on  the  store/'  and  the  defendant  said  :  "When  the 
building  is  up,  who  pays  the  most  gets  the  building*';  that  ' 
this  conversation  occurred  on  the  morning  the  written 
contract  was  made;  that  witness  desired  to  find  out  whether 
the  defendant  had  in  fact  rented  the  building  and  himself 
put  in  a  bid  for  it  at  a  rental  of  $25  more  a  month  than 
the  defendant  had  offered  ;  that  this  was  done  without  the 
defendant's  knowledge,  and  he  did  not  tell  him  because  he 
did  not  think  he  had  secured  the  building  and  was  trying 
to  get  it  himself.  He  further  says  that  after  putting  in  this 
bid  and  on  the  same  day  he  went  back  to  the  defendant 
and  told  him  :  "I  might  get  a  store  in  this  building  yet," 
and  the  defendant  said  :  "What  would  you  do  if  I  took  you 
in  on  the  building"?  And  I  said  :  "I  will  take  the  build- 
ing and  furnish  it  up  and  make  all  I  can  out  of  it.  Kent  the 
building  furnished  as  a  lodging  house  or  sell  it  for  a  lodg- 
ing house."  He  said:  "I  have  no  money  for  anything  like 
that."  And  I  says :  "If  you  give  me  a  fair  deal  I  will  put 
up  the  money  all  right;"  that  he  and  the  defendant  then 
went  into  his  store  and  the  written  agreement  was  there 
prepared  and  signed;  that  afterwards  when  the  owner  of 
the  property  came  to  execute  a  lease  to  the  defendant  she 
demanded  a  bond  to  secure  the  payment  of  the  rent,  and 
the  defendant  offered  the  witness  as  surety  thereon,  but 
there  was  some  technical  defect  in  the  bond,  as  prepared, 
and  the  witness  declined  to  sign  it  until  corrected,  and  in 
the  meantime  the  owner  concluded  not  to  take  him  as 
surety,  but  to  exact  a  real  estate  mortgage,  and  thereupon 
property  belonging  to  the  defendant's  wife  was  given  as 
security  and  the  lease  made  to  her  and  her  husband  jointly; 
that  the  property  offered  by  the  defendant's  wife  was  in- 
cumbered at  the  time  and  it  was  necessary  to  obtain  a  re- 
lease of  the  mortgage  and  for  that  purpose  the  witness  ad- 
vanced to  the  defendant  $500  which  was  so  used  ;  that  after 


552  Stein  v.  Phillips.  [47  Or. 

theJease  was  executed  the  defendant  offered  to  witness  a 
storeroom  in  the  building  but  would  do  nothing  more  for 
him  except  to  repay  him  the  $500  advanced,  which  he 
offered  to  do. 

In  answer  to  a  direct  question  the  witness  said  the  un- 
derstanding was  that  he  and  the  defendant  were  to  be 
partners  in  the  building,  but  upon  being  asked  what  he 
understood  the  partnership  to  be,  said: 

*'  It  was  understood  that  we  should  both  get  a  building, 
get  a  store,  each  one  of  us,  and  then  do  the  best  we  can 
with  the  rest. 

Q.  What  do  you  mean  by  that? 

A.  Either  rent  it  out  or  partition  it  off,  get  the  most  out 
of  it  that  we  could.  I  suggested  the  idea  it  would  be  a 
good  thing  to  furnish  it  all  in  order  to  sell  it,  I  thought 
it  would  be  a  good  thing,  the  fair  was  coming  on,  I  thought 
it  would  be  a  good  investment.  He  said  he  did  not  have 
the  money  to  go  into  anything  like  thaf 

In  another  place  the  witness  says  that  the  partnership 
was  to  be  in  the  building  and  that  they  were  to  rent  the 
stores  or  use  them,  paying  a  proportionate  rent ;  that  wit- 
ness was  to  have  one  store  and  the  defendant  another; 
and  that  defendant  was  to  secure  the  lease  and  give  wit- 
ness a  written  contract  to  that  effect.  On  cross-examina- 
tion the  following  inquiries  were  asked  and  answered : 

**  Q.  Didn't  you,  in  the  start  of  this  thing,  have  a  con- 
versation with  Mr.  Phillips  in  which  you  said  to  him  that 
you  understood  he  was  to  put  in  a  bid  for  $425  for  this 
building  and,  if  he  did,  you  would  bid  1450  ;  you  would 
raise  his  bid  and  get  it  anyway  ? 

A.  I  do  not  remember  telling  anything  like  that. 

Q.  And  then  after  you  said  that  to  him,  after  he  had 
made  some  reply,  didn't  you  people  come  together  and 
say,  *There  is  no  use  in  our  bidding  against  each  other  in 
this  way.'    Didn't  you  say,  'All  I  want  is  this  store  ?' 

A.  I  naturally  wanted  a  store ;  the  only  way  I  could  get 
it  was  to  get  the  building. 


Mar.  1906.]  Stein  v.  Phillips.  553 

Q.  Didn't  you  say  to  him — 

A.  That  I  wanted  a  store  ? 

Q.  Yes. 

A.  That  is  true  enough. 

Q.  Is  not  that  all  you  wanted  out  of  it,  was  your  store  ? 
The  store  you  now  occupy  ? 

A.  I  said  at  the  time  1  understood  he  had  the  building. 

Q.  You  did  say  it,  didn't  you  ? 

A.  I  did  say  after  I  understood  he  had  the  building,  I 
told  him,  *Well,  if  you  have  got  the  building,  let  me  have 
the  store.' 

Q.  When  was  that  conversation  ? 

A.  That  very  morning  that  he  said  he  had  the  building. 

Q.  The  morning  the  paper  was  drawn  up? 

A.  In  the  afternoon  the  paper  was  drawn  up. 

Q.  In  the  morning  of  that  day  was  the  time  you  say  you 
said  all  that  you  wanted  was  that  store  ? 

A.  I  said  :  *  If  you  secure  the  building  what  proposition 
will  you  make  me  on  the  store'  ?  He  says,  *  Whoever  pays 
the  most  gets  the  store.' 

Q.  Up  to  that  time  you  never  had  had  a  conversation 
about  the  store  ? 

A.  We  were  continuing  to  figure  beforehand. 

Q.  Was  not  the  first  thing  you  talked  about  at  all  ? 

A.  Yes,  that  is  what  it  was,  when  he  was  to  go  to  bid, 
he  says,  '  I  will  get  a  store'  and  he  gets  a  store. 

Q.  He  said,  *A11  I  want  out  of  it  is  my  store,'  and  you 
5aid  :  *  All  I  want  out  of  it  is  my  store  ?' 

A.  Such  as  I  have  got  Jiow. 

Q.  All  you  wanted  at  that  time  was  a  store,  and  all  he 
wanted  was  a  store  ? 

A.  Yes,  that  is  what  I  wanted. 

Q.  And  then  he  was  to  get  the  lease?  You  were  not  to 
get  a  lease  ? 

A.  No,  he  was  to  get  the  lease. 

Q.  There  was  no  provision  made  in  case  you  got  the 
lease  ? 

A.  No." 

The  defendant  testifies  that  he  was  a  tenant  of  the 
owner  of  the  property  for  several  years ;  that  two  or  three 


554  Stein  v.  Phillips.  [47  Or. 

years  before  the  contract  in  controversy  was  entered  into» 
he  made  a  proposition  to  the  owner  that  if  she  w^oiild  put 
up  a  building  he  would  lease  it  for  a  term  of  years,  but 
nothing  came  of  the  matter  at  that  time ;  that  in  March^ 
1903,  the  agent  of  the  owner  informed  him  that  the  owner 
would  then  entertain  a  proposition  for  the  erection  of  a 
new  building,  and  he  and  the  agent  came  to  an  under- 
standing about  the  matter,  subject,  however,  to  the  ap- 
proval of  the  owner ;  that  before  the  arrangement  was 
consummated  and  a  lease  executed,  the  plaintiff  stopped 
him  on  the  street  and  told  him  that  he  (plaintiff)  was  after 
the  building  and  was  going  to  offer  $450  a  month  for  it; 
that  he  wanted  a  storeroom  and  that  he  would  not  bid  on 
the  building  if  the  witnesses  would  agree  that  he  might 
have  a  storeroom  on  some  satisfactory  terms ;  that  wit- 
ness told  him  that  if  he  wanted  a  room  he  himself  did  not 
desire,  he  would  gladly  aid  him  to  get  it ;  that  the  written 
agreement  was  thereupon  dictated  by  the  plaintiff,  writ- 
ten by  the  defendant,  and  signed  by  the  parties  ;  that  the 
understanding  was  that  the  plaintiff  should  have  a  store- 
room in  the  proposed  building  and  that  they  should  be 
mutually  interested  in  the  use  of  the  upper  stories ;  that 
plaintiff  was  to  furnish  $2,000  to  buy  furniture  and  wit- 
ness was  to  repay  him  $20  a  month  and  all  that  might  be 
earned  from  their  joint  venture  until  his  one-half  so  ad- 
vanced was  repaid  ;  that  plaintiff  was  to  have  a  storeroom 
at  a  rental  of  $75  a  month,  but  did  not  want  such  a  pro- 
vision putin  writing ;  that  plaintiff  was  to  have  no  interest 
whatever  in  any  other  part  except  in  any  joint  use  that 
might  be  made  of  the  upper  stories ;  that  it  was  under- 
stood that  plaintiff  was  not  to  bid  on  the  building,  but  in 
violation  thereof  he  offered  $450  a  month  therefor;  that 
when  the  owner  of  the  property  came  to  execute  the  lease 
she  demanded  security  for  the  rent,  but  refused  to  accept 
the  plaintiff  as  surety  and  wanted  a  thousand  dollars  put 


Mar.  1906.]  Stkin  v.  Phillips.  555 

up  in  cash  ;  that  he  (witness)  could  not  furnish  the  money 
and  his  wife  mortgaged  her  property  to  secure  the  pay- 
ment of  the  rent  and  the  lease  was  made  to  witness  and 
his  wife  jointly  ;  that  it  was  never  agreed  that  witness  and 
plaintiff  should  be  partners  in  the  lease,  but  the  under- 
standing was  that  in  case  they  should  furnish  and  use  the 
upper  stories  as  a  lodging  house,  they  should  be  partners 
in  the  venture ;  that  the  only  thing  the  plaintiff  wanted 
was  a  storeroom,  and  witness  was  willing  to  let  him  have 
such  room  if  he  would  refrain  from  bidding  on  the  build- 
ing, but  that  matter  and  the  stipulation  in  reference  to 
the  rent  of  the  storeroom  were  not  inserted  in  the  written 
agreement  because  plaintiff  objected;  that  the  $500  ob- 
tained by  the  witness  from  the  plaintiff  was  not  for  the 
purpose  of  paying  a  mortgage  on  his  wife's  property,  but 
for  use  in  his  business,  and  witness  has  offered  to  repay 
the  same  prior  to  the  commencement  of  this  suit ;  that 
the  contract  in  question  was  dictated  by  the  plaintiff  and 
written  by  witness,  and  afterwards  plaintiff  refused  to  pay 
$75  a  month  for  a  storeroom  because  there  was  no  such 
stipulation  in  the  writing,  and  he  claimed  the  rent  was  too 
high  ;  that  witness  and  plaintiff  consulted  several  parties 
in  an  attempt  to  come  to  some  understanding  about  the 
rent,  but  were  unable  to  do  so,  and  he  rented  the  upper 
stories  to  another  party  for  a  lodging  house,  and  there- 
after plaintiff  offered  to  advance  the  money  with  which  to 
purchase  furniture.  This  is  the  substance  of  all  the  evi- 
dence concerning  the  agreement  between  the  parties  and 
the  making  of  the  written  contract,  except  the  testimony 
of  a  brother  of  the  plaintiff  who  claims  to  have  been  pres- 
ent when  the  written  agreement  was  prepared,  but  he  has 
so  plainly  confused  what  he  heard  with  what  some  one 
has  told  him  that  his  testimony  is  of  but  little  moment. 

We  have  thus  set  out  the  testimony  at  much  length  for 
the  reason  that  we  think  it  clearly  shows  that  a  mutual 


556  .Stein  v.  Phillips.  [47  Or. 

mistako  in  the  written  contract  is  not  made  oOt  in  that 
<;Iear  and  satisfactory  manner  which  the  law  requires. 
The  evidence  is  too  conflicting  and  uncertain  to  support 
■a,  decree  changing  or  modifying  a  written  agreement  de- 
liberately entered  into  by  the  parties.  It  would  be  diflB- 
rcult  to  tell  from  the  plaintiff's  testimony,  with  any  con- 
siderable degree  of  accuracy,  just  what  the  contract  was, 
•or  wherein  the  written  agreement  is  not  as  the  parties  in- 
tended it  should  be,  or  what  was  omitted  therefrom  by 
jmistake.  But,  however  this  may  be,  the  plaintiff  is  con- 
tradicted by  the  defendant,  who  denies  that  there  is  any 
mistake  in  the  written  agreement,  and  says  that  it  is  as 
the  parties  intended  it  should  be.  It  is  true  he  testifies 
that  the  agreement  that  plaintiff  should  refrain  from  bid- 
•ding  on  the  building  and  should  have  a  storeroom  therein 
at  a  rental  of  $75  a  month  was  omitted,  but  this  was  done 
by  consent  of  both  parties.  The  defendant  says  these 
matters  were  omitted  because  plaintiff  objected  to  having 
them  inserted  in  the  written  contract,  while  plaintiff 
asserts  that  no  such  stipulations  were  ever  entered  into. 
So  there  can  be  no  mistake  in  this  respect.  The.  mdst 
that  can  be  claimed  from  the  testimony  is  that  plaintiff's 
undej*standing  of  the  agreement  was  that  he  should  have 
a  one-half  interest  in  the  leasehold  estate  to  be  thereafter 
acquired  by  the  defendant,  and  that  the  writing  was  in- 
tended to  include  such  a  stipulation.  This  the  defendant 
•denies,  and  asserts  that  the  contract  was  that  in  consid- 
eration of  plaintiff's  refraining  from  attempting  to  secure 
a  lease  of  the  building  and  permitting  him  to  become  the 
lessee  thereof,  he  would  sublet  to  the  plaintiff  a  store- 
room therein  for  $75  a  month,  and  that  they  should  share 
equally  in  the  profits  or  losses  of  any  joint  use  they  might 
make  of  it.  Testimony  so  conflicting  and  uncertain  is 
clearly  not  sufficient  to  authorize  a  court  in  reforming  a 
written  instrument. 


Mar.  1906.]     Puritan  Mfg.  Co,  v.  Westkrmire.  55T 

"To  justify  a  court  of  chancery/'  says  Mr.  Justice  Mor- 
toN,  in  German  Am.  Ins.  Co.  v.  Davis,  131  Ma38.  316,  "  in 
correcting  and  reforming  a  written  contract  entered  into- 
deliberately,  so  as  to  make  it  conform  to  an  alleged  oraL 
contract  differing  in  terms,  the  proofs  of  mutual  mistake- 
must  be  full,  clear  and  decisive.  It  must  appear  beyond 
reasonable  doubt  that  the  precise  terms  of  a  contract  had 
been  orally  agreed  upon  between  the  parties,  and  that  the- 
written  instrument  afterwards  signed  fails  to  be,  as  it  was> 
intended,  an  execution  of  the  previous  agreement,  but 
expresses  a  different  contract;  and  that  this  is  the  result 
of  a  mutual  mistake.  Otherwise,  if  a  contract  should  be 
reformed  upon  proof  of  the  mistake  of  one  of  the  parties 
as. to  its  terms  or  legal  effect,  the  injustice  would  be  done 
of  imposing  upon  the  other  party  a  contract  to  which  her 
had  never  assented."  The  presumption  is  that  when  par- 
ties have  deliberately  reduced  their  contract  to  writing 
the  writing  truly  expresses  the  contract  as  made,  and  it 
can  be  corrected  and  reformed  by  a  court  only  upon  clear,, 
full  and  decisive  proof  of  a  mutual  mistake. 

Plaintiff  has  not  produced  evidence  of  that  character,, 
and  therefore  the  decree  should  be  reversed,  and  the  com- 
plaint dismissed.  Reversed. 


Argued  25  January,  decided  20  March,  1906. 
PURITAN  KAKUFAOTUBING  00.  r.  WESTESKIBE. 

84  Pac.  7»7. 

Sales— RsMBDiES  of  Purchassr  for  Breach  of  Warranty. 

1.  Where  property  delivered  under  a  contract  of  sale  does  not  even  substan- 
tially comply  with  the  requirements,  the  purchaser  may  rescind  and  refuse  U> 
receive  the  property  offered,  or  return  it  if  it  has  been  delivered  before  examina- 
tion, and  that  rlffht  is  not  affected  by  a  provision  that  no  articles  shall  be  re> 
turned  except  for  others,  since  such  proviso  implies  that  the  contract  has  been 
at  least  approximately  fulfilled. 

Sales  by  Description  — Implied  Warranty. 

!2.  Where  goods  are  sold  by  description  there  is  an  implied  warranty  that  the 
articles  to  be  furnished  shall  substantially  fulfill  the  representations  made  as  to. 
their  quality. 


558  Puritan  Mfg.  Co.  v.  Westermire.         [47  Or. 

From  Multnomah :  Alfred  F.  Sears,  Jr.,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  an  action  by  Louis  E.  Lyon  and  Milbert  F.  Price, 
as  partners  doing  business  at  Iowa  City,  Iowa,  under  the 
firm  name  of  the  Puritan  Manufacturing  Company,  against 
Henry  Westermire,  to  recover  the  agreed  price  of  certain 
jewelry.  The  complaint  alleged  that  on  February  26, 1904, 
the  parties  entered  into  a  written  contract,  incorporating 
a  copy  thereof,  whereby  the  plaintiffs  stipulated  to  ship 
and  deliver  to  the  defendant  certain  articles  of  jewelry, 
enumerating  the  several  varieties  thereof  and  the  various 
prices  therefor,  amounting  to  $380,  payable  in  install- 
ments of  $95  each  in  three,  six,  nine,  and  twelve  months 
respectively,  if  evidenced  by  acceptances  to  be  given  by 
the  defendant  within  10  days  from  the  delivery  of  the 
goods,  otherwise  the  terms  were  net  cash  in  15  days,  or 
6  per  cent  discount  if  paid  in  cash  in  10  days.  The  con- 
tract contained,  inter  alia,  the  following  clauses: 

*'ProtecJion  Against  Loss.  The  Puritan  Mfg.  Co.  will 
protect  the  purchaser  of  the  within  order  by  buying  back 
for  cash  at  original  invoice  prices,  at  the  end  of  thirteen 
months  from  date  of  shipment,  all  goods  remaining  on 
merchant's  hands  should  not  the  sales  in  that  time  have 
equaled  the  amount  of  the  original  purchase,  provided 
the  conditions  of  this  agreement  are  carried  out  by  the 
merchant  as  herein  set  forth.  However,  it  is  agreed  that 
no  goods  shall  be  returned  except  for  exchange  for  other 
goods  as  heretofore  provided  until  the  end  of  thirteen 
months.   *  * 

"Quality  of  Our  Goods.  We  desire  to  establish  the 
quality  of  our  goods,  therefore  guarantee  them  for  periods 
ranging  from  five  to  twenty  years,  and  to  make  this  guar- 
antee good  will  replace  any  article  returned  to  us  on  ac- 
count of  defective  workmanship  or  quality.  Should  any 
styles  in  this  factory  line  prove  unsalable,  or  should  there 
be  a  greater  demand  for  some  classes  mentioned  than  for 
others,  we  will,  for  one  year,  exchange  any  styles  of  our 


Mar.  1906.]    Puritan  Mfg.  Co.  v.  Westbrmirb.  559 

manufacture  for  any  of  the  above  goods  returned  to  us. 
Under  such  an  arrangement  the  merchant  is  abolutely 
assured  of  getting  satisfactory  goods,  and  hereby  agrees 
not  to  claim  failure  of  consideration  or  goods  not  such  as 
ordered,  until  he  has  exhausted  the  terms  of  the  warranty 
and  exchange,  and,  as  can  be  plainl}'  seen  in  the  ^Protec- 
tion Against  Loss'  clause,  we  are  taking  all  the  chances, 
the  merchant  therefore  agrees  to  properly  display  the  fac- 
tory line  sent  him  for  at  least  60  days  and  give  every  article 
a  chance  to  sell  before  asking  us  to  exchange." 

Pursuant  to  the  terms  of  such  contract  and  immediately 
after  its  execution,  the  plaintiffs  delivered  the  specified 
goods  to  the  defendant,  who  failed  and  refused  to  pay  any 
part  of  the  stipulated  purchase  price  thereof,  whereby  he 
became  indebted  to  them  in  the  sum  of  1380,  for  which 
judgment  was  demanded. 

The  answer  denied  the  material  allegations  of  the  com- 
plaint, and  for  a  further  defense  averred  that  plaintiff's 
agent  made  certain  false  and  fraudulent  representations 
to  the  defendant,  respecting  the  quality  and  value  of  the 
jewelry  which  they  offered  for  sale ;  that  the  defendant, 
relying  upon  such  representations,  ordered  the  specified 
goods,  but  upon  their  arrival  he  discovered  that  the  jewelry 
consisted  of  inferior  goods,  cheap  plated,  gilded  and  value- 
less to  the  defendant,  who  thereupon  returned  them  to  the 
plaintiffs.  As  a  separate  and  partial  defense,  and  by  way 
of  counterclaim,  it  was  further  averred  that  the  defendant 
paid  $15  advance  charges  to  return  the  goods  and  that 
plaintiffs  had  not  paid  any  part  of  such  sum  for  which 
judgment  was  demanded.  The  reply  put  in  issue  the  alle- 
gations of  new  matter  in  the  answ^er,  whereupon  the  cause 
was  tried,  by  stipulation  of  the  parties,  without  the  inter- 
vention of  a  jury,  the  court  making  findings  of  fact  and  of 
law  in  defendant's  favor  as  alleged  in  the  answer,  and, 
having  rendered  judgment  thereon  for  the  sum  of  $15 


560  Puritan  Mfg.  Co.  v.  Westermire.  [47  Or. 

and  the  costs  and  disTbursemeuts  of  the  action,  the  plain- 
tiffs appeal.  Affirmed. 

For  appellants  there  was  a  brief  over  the  names  of 
Charles  Joseph  Schnabel,  J,  B.  Ofner  and  jR.  P.  Howell,  with 
an  oral  argument  by  Mr,  .Schnabel. 

For  respondent  there  was  a  brief  over  the  name  of 
Spencer  &  Davis,  with  an  oral  argument  by  Mr.  Schuyler 
Colfax  Spencer. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

1.  The  agreement  entered  into  by  the  parties  having 
stipulated  that  no  jewelry  received  in  pursuance  thereof 
should  be  returned,  except  for  exchange  for  other  goods,  it 
is  contended  by  plaintiffs'  counsel  that  the  contract  itself 
furnishes  the  means  of  relief,  and  the  mode  thus  prescribed 
is  a  condition  precedent  to  the  defendant's  right  to  assert 
a  breach  of  warranty,  and  that  the  plaintiffs  never  having 
had  an  opportunity  to  exchange  any  of  the  goods  found  to 
be  unsatisfactory,  the  court  erred  in  admitting,  over  objec- 
tion anil  exception,  testimony  tending  to  show  the  defective 
condition  of  the  jewelry  received  by  the  defendant  and  of 
his  rescission  of  the  contract.  Plaintiffs'  counsel  in  sup- 
port of  the  legal  principle  which  they  assert  as  applicable 
herein,  call  attention  to  several  cases  holding  that  under 
a  special  contract  for  the  sale  of  farm  machinery,  provid- 
ing that  in  case  of  any  defect  therein  constituting  a  breach 
of  warranty,  the  purchaser  shall  give  the  vendor  notice 
thereof  and.  allow  the  latter  reasonable  opportunity  to 
remedy  the  imperfection,  a  compliance  with  such  terms 
by  the  purchaser  is  a  condition  precedent  to  the  right  of 
rescission,  which  can  only  be  exercised  in  case  the  neces- 
sary repairs  are  not  made  by  the  vendor  within  a  reason- 
able time.  We  do  not  think  the  rule  thus  announced  is 
controlling  in  the  case  at  bar.  Machinery  is  always  more 
or  less  complicated,  and  its  efficiency  depends  upon  the 


Mar.  1906.]     Puritan  Mfg.  Co.  v,  Westermire.  561 

combined  action  of  integral  parts,  a  radical  defect  in  any 
one  of  which  disables  the  whole  machine.  Such  imper- 
fection can  be  most  easily  remedied  by  a  person  familiar 
with  the  minute  details  of  the  instrumentality  and  who 
possesses  a  knowledge  of  their  harmonious  action,  and  as 
the  vendor  and  his  agents  may  be  presumed  to  have  had 
more  experience  than  others  not  engaged  in  their  line, 
and  are  more  competent  speedily  to  discover  and  readily 
to  correct  the  faults,  it  is  but  reasonable  that  they  should 
be  given,  as  the  courts  uniformly  hold,  an  opportunity  to 
remedy  the  defect,  before  the  purchaser  is  permitted  to 
assert  a  breach  of  the  warranty  or  to  rescind  the  contracts 
Such  rule,  however,  upon  principle,  can  have  no  applica- 
tion to  the  failure  of  the  vendor  to  deliver  to  the  purchaser 
the  identical  machinery  which  the  latter  orders.  If  a 
farmer  negotiated  for  the  purchase  of  a  chilled  steel,  iron 
beam  plow  which  a  vendor  agreed  to  ship  to  him,  it  cannot 
be  supposed  that  the  delivery  of  a  wooden  beam,  cast  iron, 
moldboard  plow  would  comply  with  the  terms  of  the  con- 
tract, so  as  to  prevent  the  purchaser  from  returning  the 
article  received.  Contracts  for  the  sale  of  machinery  upon 
the  terms  indicated  imply  a  substantial  compliance  with 
the  agreement  of  purchase. 

It  will  be  remembered  that  the  contract  entered  into  by 
the  parties  hereto  authorized  the  defendant,  after  the  ex- 
piration of  60  days  from  the  receipt  of  the  jewelry,  to  return 
any  article  thereof  on  account  of  defective  workmanship 
or  quality,  and  to  receive  in  exchange  therefor  other  goods. 
This  stipulation  assumes  that  the  goods  to  be  delivered 
would  substantially  comply  with  the  terms  of  the  contract 
of  sale,  but  that  if  a  few  articles  should  be  found  to  be 
defective  in  the  particulars  specified,  they  might  be  ex- 
changed after  displaying  them  for  at  least  60  days.  If, 
with  a  few  exceptions,  the  jewelry  received   had   corre- 

47  Or. 38 


562  State  v.  Miller.  [47  Or. 

sponded  with  specifications  thereof  as  to  quality,  the  terms 
of  the  contract  in  respect  to  the  exchange  of  the  small 
number  of  excepted  articles  would  probably  have  been  the 
mode  necessary  to  be  pursued  to  correct  a  mistake  made 
by  the  vendors  in  selecting  the  goods.  The  court  found, 
however,  that  the  plaintiffs  did  not  deliver  to  the  defend- 
ant any  of  the  goods,  wares  or  merchandise  embraced  in 
their  agreement.  The  findings  specify  the  particulars 
wherein  the  jewelry  delivered  to  the  defendant  entirely 
failed  to  correspond  with  the  goods  which  he  ordered,  the 
details  of  which  it  is  not  deemed  essential  to  enumerate. 

2.  The  jewelry  having  been  sold  by  description,  there 
was  an  implied  condition  that  the  articles  delivered  should 
substantially  correspond  in  their  entirety  to  the  repre- 
sentations of  the  vendor  made  in  respect  to  their  quality : 
Morse  y.  Union  Stock  Yards  Co,,  21  Or.  289  (28  Pac.  2,  14 
L.  R.  A.  157);  Wadhams  v.  Balfour,  32  Or.  313  (51  Pac.  642); 
Lenz  W.Blake,  44  Or.  569  (76  Pac.  356). 

There  being  an  entire  failure  in  this  respect,  as  the  court 
found,  the  defendant  was  at  liberty  to  treat  the  contract  as 
rescinded  by  returning  the  goods,  and,  having  done  so,  the 
judgment  is  affirmed.  Affirmed. 


Argued  27  February,  decided  8  April,  1906. 
STATE  V,  MIIiliEB. 

85  Pac.  81. 

Banking  — Inquiry  as  to  Right  to  Certify  Checks. 

1.  Where  an  officer  or  employee  of  a  bank  draws  or  certifies  commercial  pa- 
per whereby  the  funds  of  such  bank  are  to  be  used  for  his  own  benefit,  the  person 
receiving  it  Is  bound  to  inquire  further  as  to  the  authority  for  so  doing  before 
relying  on  such  act. 

Criminal  Law  — Fai^e  Pretenses- Need  of  Reliance  on  Represen- 
tation—Elements OF  Offense. 

2.  In  order  to  convict  of  a  charge  of  obtaining  money  under  false  pretenses, 
under  Section  812,  B.  A  C.  Comp.,  it  must  appear  that  the  party  charged  Intended 
to  defraud  the  injured  party  and  that  the  latter  relied  on  the  fklse  representation 
believing  It  to  be  true. 


April,  1906.]  State  v.  Miller.  563 

For  instaDoe:  A  bank  cashier  who  draws  and  oertlfles  a  check  on  his  own 
bank, in  exchange  for  which  he  receives  sooMthlng  of  value,  cannot  be  convicted 
of  obtaining  property  by  a  ftilse  token  or  pretense,  where  he  told  the  person  with 
whom  he  exchanged  that  he  did  not  have  money  on  deposit  to  pay  the  check, 
for  there  was  no  deception,  and  the  Injnred  person  clearly  did  not  rely  on  the 
genuineness  of  the  check. 

From  Baker:    Samuel  White,  Judge. 
Roy  H.  Miller  appeals  from  a  conviction  of  obtaining 
money  under  false  pretenses.  Reversed. 

For  appellant  there  was  a  brief  with  oral  arguments  by 
Mr.  Charles  Augustus  Johns  and  Mr.  William  P.  Lord. 

For  the  State  there  was  a  brief  over  the  names  of  Andrew 
Murray  Crawford,  Attorney  General,  Leroy  Lomaz,  Dis- 
trict Attorney,  and  Hart  &  Smith,  with  an  oral  argument 
by  Mr.  Crawford. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

The  defendant,  Roy  H.  Miller,  was  convicted  of  the 
crime  of  obtaining  money  by  false  pretenses,  and  appeals 
from  the  judgment  which  followed,  assigning  as  error, 
inter  alia,  the  action  of  the  court  in  refusing  to  instruct 
the  jury,  as  requested,  to  return  a  verdict  of  not  guilty. 

It  is  argued  by  l}is  counsel  that  the  testimony  shows 
that  there  was  no  intent  on  the  part  of  the  defendant  to 
defraud  the  person  from  whom  the  money  and  property 
were  obtained,  and  that  such  person  never  relied  upon 
any  alleged  false  pretense  as  a  means  inducing  him  to 
part  with  any  of  his  property  and  hence  an  error  was 
committed  as  stated.  The  bill  of  exceptions  discloses  that 
on  February  23, 1904,  one  A.  P.  Goss  entered  into  a  writ- 
ten contract  with  Miller  whereby  he  stipulated  to  convey 
to  the  latter  certain  real  property,  in  Sumpter,  Oregon, 
with  the  buildings  thereon,  and  also  to  transfer  to  him  a 
business,  known  as  the  Bank  of  Sumpter,  for  1 15,000, 
which  sum,  except  $1,000  thereof,  was  to  be  retained  by 
Miller,  together  with  all  the  promissory  notes  and  over- 


564  State  v.  Miller.  .  [47  Or. 

drafts  of  the  bank,  as  a  trust  fund  with  which  to  pay  its- 
creditors,  whose  debts  were  to  have  been  discharged  with- 
in two  years,  when  the  remainder  of  the  uncollected  notes 
and  credits  assigned  to  him,  together  with  any  part  of  the 
114,000  unused,  were  to  be  returned  to  Gossl  The  testi- 
mony shows  that  Goss  performed  his  part  of  the  agree- 
ment by  transferring  the  property  of  the  Bank  of  Sump- 
ter,  the  value  of  which  was  at  least  $10,000  less  than  its 
liabilities,  receiving  therefor  Miller's  personal  check  for 
115,000,  drawn  on  the  First  National  Bank  of  Sumpter, 
of  which  he  was  then  the  cashier,  and  as  such  certified 
the  order  for  the  payment  of  the  money.  Goss  immedi- 
ately assigned  the  check  to  the  Bank  of  Sumpter,  of  which 
Miller  had  taken  charge,  receiving  credit  for  $1,000,  which 
was  subject  to  check,  and  a  certificate  of  deposit  for 
$14,000,  which  specified  that  it  was  **  payable  as  per  con- 
tract of  this  date."  The  testimony  further  shows  that 
Miller  operated  the  Bank  of  Sumpter  until  July  28,  1904,. 
when  he  executed  a  deed  and  a  bill  of  sale  of  all  its  prop- 
erty to  one  C.  H.  McCulloch,  in  trust  for  the  creditors^ 
and  in  a  few  days  thereafter  this  bank  suspended  pay- 
ment, thereby  terminating  its  business. 

The  court  certifies  to  the  following  statement  contained 
in  the  bill  of  exceptions,  to  wit: 

"  There  is  no  testimony  which  shows,  or  tends  to  show,, 
that  the  defendant  ever  violated  any  terms  or  conditions 
of  said  contract  in  the  collection  of,  or  in  the  failure  to 
collect,  the  assets  of  the  bank,  or  that  he  failed  or  ne- 
glected to  pay  out  and  disburse  any  moneys  or  funds  so 
collected  according  to  the  terms  of  the  contract,  or  that 
he  made  any  profit  out  of  the  transaction,  or  that  he  used 
a  single  dollar  of  any  of  the  moneys  of  the  bank,  or  the 
proceeds  of  any  notes  or  other  evidences  of  debt  by  him 
collected,  or  that  he  failed  or  neglected  to  account  for  and 
pay  over  any  and  all  money  which  was  turned  over  to 
him,  or  which  was  by  him  collected,  according  to  the  terms- 
and  conditions  of  the  contract." 


April,  1906.]  State  v.  Miller.  565 

Goss,  appearing  as  a  witness  for  the  State,  was  asked  : 
"Q.  You  may  state  to  the  jury  whether  or  not  the  sale 

and  transaction  between  you  and  the  defendant  Miller  was 

a  cash  sale  or  transaction  ?'' 
And  he  answered  :    "It  was." 

**Q.  And  why  did  you  accept  it  (referring  to  the  check) 
as  such,  and  why  did  you  believe  it  to  be  genuine  at  that 
time,  what  if  any  circumstance  led  you  to  believe  that? 

A.  It  being  attested  by  him  as  cashier,  I  thought  it  bet- 
ter.    ♦     * 

Q.  Now,  Mr.  Goss,  you  may  state  if  you  turned  over  to 
the  defendant  Roy  Miller  the  property  of  the  bank  believ- 
ing that,  and  relying  upon  the  fact  of  the  $15,000  check  . 
which  you  testified  to  being  a  good,  genuine  and  valid 
check  ? 

A.  I  did. 

Q.  And  upon  what  bank  was  it  (referring  to  the  check) 
given  ? 

A.  The  First  National  Bank  of  Sumpter,  Oregon. 

Q.  Where  is  the  First  National  Bank  of  Sumpter,  Ore- 
gon, with  reference  to  the  Bank  of  Sumpter? 

A.  About  two  blocks  distant. 

Q.  Did  you  ever  present  that  check  for  payment? 

A.  I  deposited  it  in  the  Bank  of  Sumpter. 

Q.  Please  answer  the  question,  did  you  ever  present  that 
check  for  payment  to  the  First  National  Bank  of  Sumpter  ? 

A.  I  did  not. 

Q.   And  why  didn't  you  do  it? 

A.  Because  it  was  the  same  as  cash  coming  through 
there  and  was  entirely  unnecessary.  They  didn't  have 
the  cash  to  pay  it,  if  I  had  called  for  it. 

Q.  Didn't  you  know,  Mr.  Goss,  at  the  time  you  accepted 
that  check  that  you  couldn't  go  over  to  the  First  National 
Bank  of  Sumpter  there  and  get  the  money  on  it? 

A.  That  is  right. 

Q.  You  knew  the  money  was  not  there  with  which  to 
<jash  the  check  ? 

A.  I  was  told  it  was  not. 

Q.   Who  told  you? 

A.  Mr.  Miller." 


566  State  v.  Miller.  [47  Or. 

The  bill  of  exceptions  does  not  purport  to  contain  all 
the  evidence,  but  as  the  court  instructed  the  jury  that  if 
they  should  find  that  Miller  told  Goss  that  there  was  not 
sufficient  funds  in  the  First  National  Bank  of  Sumpter  to 
pay  the  115,000  check,  whereupon  the  latter  insisted  that 
it  should  be  certified  by  Miller,  who,  ^*  by  reason  of  such 
insistence,"  complied  therewith,  and  Goss  thereupon  ac- 
cepted the  check,  believing  that  the  attestation  validated 
it,  etc.,  it  may  be  taken  as  granted  that  testimony  to  that 
effect  was  introduced  at  the  trial. 

In  the  ordinary  course  of  the  business  of  a  bank,  the  cer- 
tifying of  a  check  imports  that  the  drawee  has  funds  of  the 
drawer  at  the  time,  of  which  a  sufficient  sum  shall  be  re- 
tained to  meet  the  payment  of  the  paper  on  presentation: 
Farmers'  &  M.  Bank  v.  Butchers'  &  D,  Bank,  28  N.  Y.  425. 
The  certifying  of  a  check  is  equivalent  to  an  acceptance  of 
a  bill  of  exchange,  payable  on  demand,  whereby  the  sum 
so  specified  is  immediately  transferred  from  the  drawer's 
account,  thereby  making  the  bank  primarily  liable  to  a 
bona  fide  holder  of  the  check  for  value:  Farmers'  &  M, 
Bank  v.  Butchers'  &  D.  Bank,  16  N.  Y.  125  (69  Am.  Dec. 
678);  Meads  v.  Merchants'  Bank,  25  N.  Y.  143  (82  Am.  Dec. 
331);  Bickford  v.  First  Nat.  Bank,  42  111.  238  (89  Am.  Dec. 
436);  Farmers'  &  M,  Bank  v.  Butchers'  &  D.  Bank,  14  N.  Y. 
623;  Merchants'  Bank  v.  State  Bank,  77  U.  S.  (10  Wall.)  604 
(19  L.  Ed.  1008).  An  agent  of  a  bank  cannot  bind  it  by 
false  representations,  of  which  it  had  no  actual  knowledge,, 
when  he  was  acting  for  himself:  National  Bank  v.  Carper^ 
28  Tex.  Civ.  App.  334  (67  S.  W.  188).  "It  is  elementary," 
says  Mr.  Justice  Ladd,  in  Oerman  Savings  Bank  v.  Des^ 
Moines  Nat,  Bank,  122  Iowa,  737  (98  N.  W.  606),  '*thatan 
agent  cannot  bind  his  principal,  even  in  matters  touching 
his  agency,  where  he  is  known  to  be  acting  for  himself, 
or  to  have  an  adverse  interest."  The  private  participation 
of  a  cashier  in  a  transaction  which  may  affect  his  princi- 


April,  1906.]  State  v.  Miller.  567 

pal  is  sufficient  to  put  the  other  party  upon  inquiry  as 
to  the  extent  of  the  agent's  authority,  for  a  cashier  has  no 
implied  power  to  dispose  of  the  funds  of  a  bank  in  pay- 
ment of  his  own  obligations:  Hier  v.  Miller,  68  Kan.  258 
(75  Pac.  77, 63  L.  R.  A.  952);  Rankin  v.  Bush,  93  App.  Div. 
181  (87  N.  Y.  Supp.  539).  Thus,  a  person  cannot  deal  with 
a  cashier  of  a.  bank  as  an  individual  in  securing  a  draft, 
and  after  it  has  been  delivered  claim  that  its  issuance  has 
become  the  transaction  of  the  bank:  Campbell  v.  Manufa^- 
iurers'  Nat.  Bank,  67  N.  J.  Law,  301  (51  Atl.  497, 91  Am.  St. 
Rep.  438).  So,  too,  where  a  cashier  issues  a  draft  to  him- 
self and  delivers  it  to  a  broker,  to  be  used  in  speculating, 
the  latter  is  placed  on  inquiry  as  to  the  nature  and  owner- 
ship of  the  fund :  Mendel  v.  Boyd  (Neb.),  91  N.  W.  860. 

1.  To  give  validity  to  negotiable  paper,  so  as  to  facilitate 
its  circulation,  the  rules  of  law  impose  upon  a  bank  primary 
liability  for  certified  checks  drawn  upon  it  by  a  depositor  or 
customer,  because  such  a  transaction  is  the  ordinary  mode 
of  doing  business.  Where,  however,  an  agent  of  a  bank 
draws  a  draft,  payable  to  himself,  or  certifies  a  check  which 
he  issues,  whereby  the  funds  of  the  bank  are  or  may  be 
withdrawn  for  his  benefit,  the  transaction  is  extraordinary, 
and  before  the  bank  can  be  rendered  liable  thereon,  the 
person  receiving  such  draft  or  check  is  bound  to  make  in- 
quiry from  other  officers  of  the  bank  in  respect  to  the  val- 
idity of  the  paper.  Goss  was  a  banker,  and  is  presumed 
to  know  the  law  and  customs  applicable  to  the  business  in 
which  he  was  engaged,  and,  this  being  so,  he  could  not 
have  depended  upon  any  primary  liability  of  the  First 
National  Bank  of  Sumpter  as  giving  validity  to  the  check 
which  he  knew  was  issued  and  certified  by  Miller,  and  hence 
his  reliance  must  rest,  if  at  all,  upon  the  defendant's  rep- 
resentations, express  or  implied,  in  respect  to  such  paper. 

2.  The  crime  alleged  to  have  been  committed  by  Miller 
consists  in  his  drawing  a  personal  check  on  the  First  Na- 


568  State  v.  Miller.  [47  Or. 

tional  Bauk  of  Sumpter  in  favor  of  Goss  for  the  sum  of 
$15,000,  and  certifying  thereto  as  cashier  of  that  bank, 
when  he  did  not  have  the  money  on  deposit  therein.  Our 
statute  prohibiting  such  transactions  is,  so  far  as  deemed 
involved  herein,  as  follows: 

"If  any  person  shall  *  *  by  any  privy  or  false  token, 
and  with  intent  to  defraud,  obtain  *  *  from  any  other  per- 
son, any  money  or  property  whatever,  *  *  such  person, 
upon  conviction  thereof,  shall  be  punished,"  etc.:  B.  &  C. 
Comp.  §  1812. 

An  examination  of  this  section  will  show  that  the  phrase 
''any  false  pretense,"  as  denounced  in  the  statute,  has  been 
omitted  from  the  excerpt  quoted,  because  the  specification 
of  the  particulars  of  the  crime  charged  is  limited  to  the 
issuance  of  a  check  as  a  privy  token.  Such  token,  however, 
is  of  the  same  class  and  subject  to  the  same  penalties  as  are 
prescribed  for  the  use  of  a  false  pretense  as  a  means  of 
obtaining  the  money  or  personal  property  of  another,  and 
to  all  intents  and  purposes  is  a  false  pretense.  In  defining 
the  latter  term,  the  editors  of  the  Encyclopedia  of  Pleading 
and  Practice  (volume  8,  p.  857),  say:  "A  false  pretense  is  a 
false  and  fraudulent  representation  or  statement  of  a  past 
or  existing  fact,  made  with  knowledge  of  its  falsity  and  with 
the  intent  to  deceive  and  defraud,  by  reliance  upon  which 
representation  or  statement  another  is  induced  to  part 
with  money  or  property  of  value."  An  analysis  of  this 
definition  will  show  that  in  order  to  sustain  the  conviction 
herein.  Miller  must  have  issued  the  false  privy  token  with 
intent  to  deceive  and  defraud  Goss,  who,  relying  upon  the 
apparent  validity  of  the  check,  which  its  issuance  pur- 
ported, he  was  thereby  induced  to  part  with  his  money 
and  property.  Mr.  Wharton,  in  his  work  on  Criminal  Law 
(9  ed.,  vol.  2,  §  1183),  in  commenting  upon  one  of  the  nec- 
essary elements  of  false  pretenses,  says:  **It  is  an  essential 
ingredient  of  the  offense  that  the  party  alleged  to  have 


April,  1906.]  State  v.  Miller.  569 

been  defrauded  should  have  believed  the  false  representa- 
tions to  be  true,  for  if  he  knew  them  to  be  false,  he  cannot 
•claim  that  he  was  influenced  by  them.'*  McClain  in  his 
work  on  Criminal  Law  (section  684),  in  discussing  this 
■question,  says:  "It  must  be  shown  both  by  the  allegations 
and  the  proof  that  the  false  pretense  was  relied  upon  by 
the  person  parting  with  his  money  or  property  as  the  in- 
ducement thereto.*'  Further  in  the  same  section  this 
author  observes:  **And  it  must  appear  that  the  person  to 
whom  the  pretenses  were  made  believed  them  to  be  true, 
otherwise  he  would  not  be  defrauded  thereby."  To  the 
same  effect  see  12  Am.  <fe  Eng.  Enc.  Law  (2  ed.),  820;  3  Cur- 
rent Law,  1419;  19  Cyc.  406;  2  Bishop,  Crim.  Law  (7  ed.), 
§  462;  Clark  &  Marshall,  Crimes  (2  ed.),  §  365;  Underbill, 
€rim.  Ev.  §  442. 

The  legal  principle  thus  announced  in  these  text  books 
is  amply  supported  by  the  adjudged  cases.  Thus,  in  Peo- 
jple  V.  Stetson,  4  Barb.  (N.  Y.)  151,  it  was  held  to  be  an  indis- 
pensable constituent  of  the  crime  of  false  pretenses  that 
the  party  alleged  to  have  been  defrauded  should  have  be- 
lieved the  false  representations  to  be  true,  otherwise  he 
<jould  not  claim  that  he  was  influenced  by  them.  In  State 
V.  EverSy  49  Mo.  542,  it  was  ruled  that  a  conviction  for  ob- 
taining money  by  false  pretenses  could  not  be  upheld  un- 
less the  indictment  charged  that  the  prosecutor  believed 
the  false  pretense  was  true  and  that,  confiding  in  the  verity 
thereof,  he  parted  with  his  money  or  property.  So,  too,  in 
People  V.  Bough,  48  Hun,  621  (1  N.  Y.  Supp.  298),  it  was  de- 
cided that  a  conviction  of  larceny  by  false  pretenses  could 
not  be  sustained  when  there  was  no  proof  that  any  reliance 
was  placed  upon  the  representations  made  by  the  defend- 
ant, or  that  any  credit  was  given  to  him  because  of  them. 
See,  also,  State  v.  Bloodsworth,  25  Or.  83  (34  Pac.  1023),  and 
Hunter  v.  State,  46  Tex.  Cr.  Rep.  498  (81  S.  W.  730).  It  will 
be  remembered  that  Goss  testified  that  he  delivered  the 


570  State  v.  Miller.  [47  Or. 

property  of  the  Bank  of  Sumpter  to  Miller,  relying  upon  the 
check  for  $15,000  as  being  good,  genuine  and  valid.  Goss*s 
statement  in  this  respect  is  immediately  disproved  by  his 
subsequent  declaration  under  oath  that  the  check  was  not 
presented  for  payment  because  the  First  National  Bank  of 
Sumpter  did  not  have  the  money  with  which  to  discharge 
it.  if  he  had  called  for  it,  and  that  at  the  time  he  accepted 
the  check  he  knew  he  could  not  get  the  money  on  it,  for 
Miller  told  him  so.  Reliance  by  a  person  upon  the  repre- 
sentations of  another  implies  a  belief  in  the  accuracy  of 
the  declarations  that  inspired  the  confidence  reposed.  In 
the  absence  of  faith  in  the  truth  of  the  statements  thus 
made,  a  dependence  thereon  is  an  impossibility.  It  is  ab- 
surd to  say  that  Goss  relied  upon  the  validity  of  the  check 
when  he  was  told  by  Miller  that  there  was  no  money  in 
the  bank  on  which  it  was  drawn  to  meet  the  payment 
thereof.  The  testimony  of  Goss  having  disclosed  this  un- 
contradicted fact,  the  question  to  be  considered  is,  what 
duty  devolved  upon  the  court  when  its  attention  was  called 
to  the  defect  in  the  proof  ? 

In  Commonwealth  v.  Davidson,  1  Gush.  (Mass.)  33,  the  de- 
fendant being  tried  for  obtaining  property  by  false  pre- 
tenses, the  proof  showed  that  he  gave  a  false  name,  and 
the  prosecuting  witness  having  testified  that  this  misrep- 
resentation had  no  influence  in  inducing  him  to  part  with 
his  goods,  it  was  held  that  the  trial  court,  upon  such  show- 
ing, should  have  instructed  the  jury  that  the  misrepresen- 
tation was  not  established  as  an  inducing  motive  to  the 
obtaining  of  the  goods  by  the  defendant.  In  State  v.  Crane^ 
54  Kan.  251  (38  Pac.  270),  it  appeared  upon  appeal  that,  as 
the  prosecuting  witness  had  testified  that  he  could  not  say 
he  relied  upon  the  defendant's  false  statement  as  an  in- 
ducement to  execute  a  promissory  note,  it  was  ruled  that 
the  evidence  was  insufficient,  to  sustain  the  conviction. 
In  Thorpe  v.  State,  40  Tex.  Or.  R.  346  (50  S.  W.  383),  the  plain- 


April,  1906.]  State  v.  Miller.  571 

tiff  in  error  was  convicted  of  the  crime  of  obtaining  money 
by  false  pretenses,  and  appealed.  The  testimony  of  the 
prosecuting  witness  showed  that  Thorpe  was  indebted  to 
him  in  the  sum  of  five  dollars,  and  that,  desiring  to  secure 
another  loan  of  an  equal  sum,  he  offered  to  give  a  check 
upon  a  specified  bank  for  $10.  The  person  from  whom  the 
loan  was  thus  sought  replied  that  he  did  not  believe  the 
applicant  had  any  money  in  the  bank  mentioned,  but  that 
he  would  give  five  dollars  to  catch  him,  and  if  such  state- 
ment was  false,  he  would  prosecute  him,  whereupon  he 
gave  the  sum  desired,  receiving  the  check  promised.  The 
teller  of  the  bank  on  which  the  check  was  drawn  testified 
that  Thorpe  never  had  any  money  on  deposit  therein. 
The  court,  in  reversing  the  judgment,  referring  to  the  tes- 
timony given,  says :  **If  the  prosecuting  witness  had  re- 
lied upon  the  statements  of  appellant* that  he  had  money 
in  the  bank,  we  cannot  see  why  he  should  have  made  the 
threat  against  appellant  indicated  by  the  evidence ;  and 
when  he  expressly  states  that  he  did  not  believe  appellant, 
and  did  not  believe  that  appellant  had  the  money,  surely 
this  statement  precludes  the  idea  that  the  prosecuting  wit- 
ness was  induced  to  part  with  his  money  by  the  false  rep- 
resentations of  the  appellant.  The  indictment  must  allege,, 
in  every  case  of  swindling,  and  the  evidence  must  show, 
that  the  injured  party  was  induced  to  part  with  his  prop- 
erty by  means  of  the  false  pretenses ;  otherwise,  it  is  not 
swindling.  We  do  not  think  the  evidence  supports  the 
conviction." 

In  Regina  v.  Mills,  Dearsly  &  Bell's  Crown  Cases,  205/ 
the  defendant  was  convicted  for  obtaining  money  by  false 
pretenses,  in  representing  that  he  had  cut  63  fans  of  chaff 
when  he  had  cut  only  45  fans.  The  evidence  showed  that 
he  was  employed  to  cut  chaff  at  2d  per  fan,  and  that  based 
on  the  alleged  false  pretense  he  demanded  10s  6d.  The 
prosecuting  witness  had  previously  seen  him  remove  IS 


-572  State  v.  Miller.  [47  Or. 

fans  from  an  adjoining  place  and  add  them  to  the  heap 
which  he  pretended  to  have  cut,  bat,  notwithstanding  such 
knowledge,  he  paid  the  defendant  the  sum  demanded.  It 
was  held  that  on  the  testimony  given,  the  conviction  was 
wrong,  as  the  money  was  not  obtained  by  the  false  pre- 
tense. In  People  v.  Baker,  90  N.  Y.  340,  a  like  conclusion  was 
reached  upon  similar  evidence,  and  in  deciding  the  case, 
Mr.  Justice  Earl,  speaking  for  the  court,  says :  "We  do 
not  sit  here  to  square  the  conduct  of  the  defendant  by  any 
code  of  morality,  or  any  standard  of  integrity ;  the  sole 
question  is  whether  the  proof  was  sufficient  to  show  that 
he  had  committed  the  crime  with  which  he  stood  charged, 
and  we  are  of  the  opinion  that  it  utterly  failed." 

Applying  the  rule  thus  announced  to  the  case  at  bar,  the 
testimony  conclusively  shows  that  Goss  was  correctly  in- 
formed respecting  all  the  facts  relating  to  the  transaction 
in  question,  and,  as  a  conclusion  of  law  based  thereon,  we 
are  satisfied  that  he  did  not  rely  on  any  false  representa- 
tion made  by  Miller.  In  criminal  actions  for  false  pre- 
tenses it  must  appear  from  the  testimony  given  at  the  trial 
Ihat  the  party  charged  intended  to  defraud  the  person 
from  whom  the  money  or  property  was  wrongfully  ob- 
tained. The  fraud  in  such  cases  depends  upon  the  decep- 
tion practiced  by  the  defendant  or  his  agent.  In  the  case 
at  bar.  Miller  having  told  Goss  that  there  was  no  money 
in  the  First  National  Bank  of  Sumpter  with  which  to  pay 
the  check,  there  was  no  deceit,  and  hence  there  was  no  in- 
tent on  Miller's  part  to  defraud  Goss. 

There  having  been  an  entire  absence  of  testimony  neces- 
sary to  prove  a  material  averment  of  the  indictment,  the 
court  should  have  instructed  the  jury  to  acquit  the  defend- 
ant ;  but,  having  failed  to  do  so,  the  judgment  is  reversed, 
and  the  cause  remanded  for  such  proceedings  as  may  be 
necessary,  not  inconsistent  with  this  opinion. 

Reversed. 


Jan.  1906.]  HuffmaNvV.  Smyth.  573- 

Decided  SO  January,  1906. 

HUFFMAN  V.  SMYTH. 

S4  Pac.  80. 

Jurisdiction  of  Equity  to  Protect  Possession  of  Settler  on  Un- 
SURVEYED  Public  Land. 

1.  The  civil  courts  will  protect  the  possession  of  a  bona  fide  settler  on  unsur^ 
veyed  public  land  who  is  qualified  as  a  settler  and  Intends  to  claim  such  land  as  a 
homestead  under  the  provisions  of  21  Stat.  U.S.  c.89, 1  3,  against  unlawful  Intru- 
sion or  interference:  Frink  v.  Thomtu,  20  Or.  265,  distinguished. 

Public  Lands  —  Confinement  for  Crime  as  as  abandonment. 

2.  After  a  qualified  settler  has  established  an  actual  residence  on  public  land, 
his  removal  and  absence  therefrom  by  reason  of  confinement  for  a  crime  is  not, 
as  matter  of  law,  an  abandonment  of  his  rights. 

From  Harney:  George  E.  Davis,  Judge. 

Statement  by  Mr.  Justice  Hailey. 

This  is  an  equity  suit  by  William  D.  Huffman  against 
Fannie  E.  Smyth  and  her  husband  for  the  possession  of 
unsurve^-ed  public  land  upon  which  the  appellant  claims 
to  have  settled  with  the  intention  of  claiming  the  same 
under  the  homestead  laws,  and  from  w^hich  he  claims  to 
have  been  ousted  by  the  respondents,  and  to  enjoin  re- 
spondents from  interfering  with  the  possession  of  such 
land.  The  complaint  alleges  the  necessary  qualifications 
of  the  appellant  as  a  homesteader,  and  that  he  is  the  owner 
of  the  improvements  upon  and  entitled  to  the  possession  of 
certain  public  land  in  Harney  County,  Oregon,  a  portion 
of  which  improvements  he  purchased  from  a  prior  occu- 
pant of  the  land,  and  immediately  entered  into  possession 
of  the  land  and  improvements  with  the  intention  of  filing 
upon  the  land  when  surveyed  as  a  homestead  under  the 
laws  of  the  United  States  ;  that  he  has  ever  since  culti- 
vated and  farmed  the  land  and  made  additional  improve- 
ments by  building  corrals  thereon,  clearing,  plowing,  fenc- 
ing and  digging  ditches  thereon,  and  otherwise  adding  to 
and  improving  the  land,  which  impiovements,  together 
with  those  purchased,  are  reasonably  worth  the  sum  of 
$3,000 ;  that  he  continued  to  so  occupy  the  land  and  im- 


574  Huffman  v.  Smyth.  [47  Or. 

provements  until  the  spring  of  1900,  when  he  was  con- 
victed of  a  felony  and  sent  to  the  penitentiary  in  this  State 
for  a  term  of  10  years,  where  he  was  confined  until  1905, 
when  a  full  pardon  was  granted  him  ;  that  at  the  time  he 
was  confined  in  prison  the  respondent  Fannie  Smyth  was 
his  wife,  but  soon  thereafter  procured  a  decree  of  divorce 
from  him,  in  which  it  was  ordered  that  she  should  have 
as  alimony  possession  of  the  improved  portion  of  and  im- 
provements upon  the  land  claimed  by  him,  for  the  mainte- 
nance of  herself  and  children,  but  alleges  that  all  such  por- 
tion of  such  decree  affecting  the  land  and  its  improvements 
and  the  right  to  possession  thereof  is  void  and  of  no  effect,* 
and  that  while  appellant  was  away  from  the  land,  under 
sentence  in  the  penitentiary,  she  unlawfully,  and  without 
any  right  or  authority,  and  without  any  right,  title  or  in- 
terest in  the  premises,  except  such  as  was  granted  her  by 
the  decree  in  the  divorce  case  above  mentioned,  and  with- 
out the  consent  of  the  appellant,  took  possession  of  the 
land  and  improvements  claimed  by  him,  and  that  the 
other  defendant,  George  M.  Smyth,  is  her  husband  and 
claims  as  such  some  interest  in  the  premises ;  that  prior 
to  the  commencement  of  this  suit  appellant  demanded 
possession  of  the  premises  and  all  improvements  and  ap- 
purtenances belonging  thereto  of  the  respondents,  but  they 
refused  and  still  refuse  to  deliver  possession  ;  that  respond- 
ent Fannie  Smyth  is  a  married  woman,  living  with  her 
husband  and  not  compelled  to  support  herself  or  family, 
and  in  this  and  other  respects  is  not  qualified  to  maintain 
a  possessory  right  to  the  premises  or  enter  the  same  under 
the  homestead  laws  of  the  United  States ;  that  said  land 
produces  a  large  crop  of  hay  annually,  amounting  to  about 
100  tons,  worth  the  sum  of  1600;  that  a  large  crop  of  hay 
is  now  growing  thereon  and  will  soon  be  ready  to  harvest. 


*NoTB.— In  this  connection  see  Huffman  v.  Huffman^  post, ,  where  the 

part  of  the  decree  here  referred  to  is  declared  void.  Bkportbr. 


Jan.  1906.]  Huffman  v,  Smyth.  575 

and  the  respondents  threatened  to  and  will  harvest  the 
same  and  use  it  to  appellant's  irreparable  damage;  that 
respondents  are  not  properly  irrigating  said  hay  nor  car- 
ing for  it  in  proper  manner,  and  that,  unless  restrained 
from  using  said  premises,  appellant  will  be  damaged  in 
the  sum  of  $1,000;  and  that,  by  reason  of  the  wrongful 
possession  of  the  respondents  and  by  their  not  permitting 
him  to  take  possession  of  said  premises-,  he  is  unable  to 
protect  his  homestead  rights  to  said  land  and  will  be  un- 
able to  hold  the  same  under  the  laws  of  the  United  States, 
and  that  other  parties  are  threatening  to  take  possession  of 
and  hold  the  land  under  said  laws,  and  will  do  so  unless  he 
is  restored  to  the  possession  thereof,  and  will  cause  him  to 
lose  the  same,  and  that  he  will  be  damaged  in  the  sum  of 
$10,000.  He  prays  for  an  order  directing  the  court  to  put 
him  in  possession,  and  to  vacate  the  divorce  decree  so  far 
as  it  applies  to  the  land  and  improvements,  and  for  an 
order  restraining  and  enjoining  the  respondents  from  in- 
terfering with  his  possession  of  the  premises  mentioned. 
A  demurrer  was  filed,  alleging,  first,  want  of  jurisdiction 
of  the  subject-matter  of  the  suit ;  and,  second,  that  the 
complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  suit.  This  demurrer  was  sustained,  and  a  decree 
entered  dismissing  the  complaint,  from  which  decree  this 
appeal  was  taken.  Reversed. 

For  appellant  there  was  a  brief  over  the  names  of  King 
&  Brooke  and  Biggs  &  Biggs  to  this  effect. 

I.  A  qualified  settler  on  public  land  has  a  right  thereto 
against  every  person  except  the  government,  and  when 
such  settlement  is  made  with  a  view  to  obtaining  title 
under  the  homestead  laws,  such  right  is  valuable  and  is 
one  which  the  courts  will  protect  and  enforce :  21  Stat. 
U.  S.  141,  c.  89,  §3(6  Fed.  Stat.  Ann.  300,  301,  U.  S.  Comp. 
St.  1902,  p.  1393);  Atherion  v.  Fowler,  96  U.  S.  513 ;  Lcng- 


576  Huffman  v,  Smyth.  [47  Or. 

necker^s  Case,  30  Land  Dec.  Dep.  Int.  611;  Kitcherside  v. 
Myers,  10  Or.  21;  French  v.  Creawell,  13  Or.  418  (11  Pac. 
62);  Jackson  v.  Jackson,  17  Or.  110  (19  Pac.  847);  Hind- 
man  V.  Rizor,  21  Or.  112  (27  Pac.  13);  Allen  v.  Dunlap,  24 
Or.  229  (33  Pac.  675);  Bishop  v.  BaisUy,  28  Or.  119  (41 
Pac.  936). 

II.  One  who  has  taken  the  preliminary  steps  to  secure 
a  homestead,  the  first  of  which  is  possession,  is  entitled  to 
the  aid  of  equity  to  retain  or  regain  his  possession  against 
an  intruder  without  title  :  Kitcherside  v.  Myers,  10  Or.  21 ; 
Allen  V.  Dunlap,  24  Or.  229  (33  Pac.  675);  Bishap  v.  Bais- 
ley,  28  Or.  119  (41  Pac.  936);  Muldrick  v.  Brown,  37  Or. 
185  (61  Pac.  428);  Pacific  Livestock  Co,  v.  Gentry,  38  Or. 
275  (61  Pac.  422). 

III.  The  charge  of  abandonment  will  not  lie  where  it 
appears  that  a  residence  was  established  and  that  claim- 
ant's subsequent  absence  was  by  judicial  compulsion.  Bo- 
hall  V.  Dilla,  114  U.  S.  47  (5  Sup.  Ct.  782);  Anderson  v. 
Anderson,  5  Land  Dec.  Dep.  Int.  6 ;  Kane  v.  Devine,  7  Land 
Dec.  Dep.  Int.  532 ;  Parsons  v.  Hughes,  8  Land  Dec.  Dep. 
Int.  593;  Arnold  v.  Cooley,  10  Land  Dec.  Dep.  Int.  551; 
Reedhead  v.  HauenstinCf  15  Land  Dec.  Dep.  Int.  551. 

For  respondents  there  was  a  brief  by  Mr.  William  Miller 
to  this  effect. 

Which  of  two  contestants  has  a  better  right  to  a  tract 
of  unsurveyed  public  land  is  a  question  exclusively  for  the 
land  department  of  the  federal  government,  and  should  not 
be  considered  by  a  State  court:  Moore  v.  Fields,  1  Or. 317; 
Frink  v.  Thomas,  20  Or.  265  (12  L.  R.  A.  239,  25  Pac.  717). 

Mr.  Justice  Hailey  delivered  the  opinion  of  the  court. 

The  questions  raised  by  this  demurrer  will  be  treated  in 
their  order. 

1.  Had  the  lower  court  jurisdiction  of  the  subject-mat- 
ter?   The  complaint  alleges  the  necessary  qualifications 


Jan.  1906.]  Huffman  v.  Smyth.  577 

of  the  appellant  as  a  homesteader  under  the  federal  laws 
and  bis  settlement  upon  and  improvement  of  lands  and 
personal  occupation  thereof  to  a  certain  time,  his  absence 
from  that  time,  and  the  reason  therefor,  together  with  his 
intention  of  claiming  the  lands  under  the  homestead  laws 
when  surveyed,  the  unlawful  entry  of  the  respondents  dur- 
ing bis  absence,  and  their  refusal  to  vacate,  and  his  inabil- 
ity to  comply  with  the  homestead  laws  and  protect  his 
rights  of  settlement  and  improvements  made  thereunder, 
because  of  the  acts  of  respondents,  and  also  the  absence  of 
rights  on  the  part  of  respondents.  The  act  of  Congress  of 
May  14, 1880,  c.  89,  §  3,  21  Stat.  U.  S.  140, 141  (U.  S.  Comp. 
St.  1902,  p.  1393,  6  Fed.  Stat.  Ann.  300,301),  provides: 

"That  any  settler  who  has  settled,  or  who  shall  here- 
after settle,  on  any  of  the  public  lands  of  the  United  States, 
whether  surveyed  or  unsurveyed,  with  the  intention  of 
claiming  the  same  under  the  homestead  laws,  shall  be  al- 
lowed the  same  time  to  file  his  homestead  application  and 
perfect  his  original  entry  in  the  United  States  land  office 
as  is  now  allowed  to  settlers  under  the  pre-emption  laws  to 
put  their  claims  on  record,  and  his  right  shall  relate  back 
to  the  date  of  settlement,  the  same  as  if  he  settled  under 
the  pre-emption  laws.*' 

Under  this  section  any  person  qualified  to  acquire  lands 
under  the  federal  homestead  law  can  lawfully  settle  upon 
unsurveyed  public  lands,  and,  if  such  settlement  is  made 
with  the  intention  of  claiming  the  lands  under  such  home- 
stead law,  such  settler  acquires  a  prior  right  to  file  upon 
the  same  in  the  local  land  office  when  surveyed.  This  prior 
right  carries  with  it  the  right  to  the  possession  of  the  land 
settled  upon,  and  such  a  settler  will  be  protected  in  his 
right  of  possession  when  unlawfully  disturbed  by  another. 
See  Kalyion  v.  Kalyton,  45  Or.  116-130  (74  Pac.  491,  78 
Pac.  332),  where  this  is  declared  to  be  the  settled  rule  in 
this  State,  and  where  the  authorities  therefor  are  cited. 

47  Or. 87 


578  Huffman  v,  Smyth.  [47  Or. 

The  subject-matter  of  this  suit  is  the  right  to  the  posses- 
sion of  the  land  claimed,  the  legal  title  to  which  id  in  the 
government,  the  appellant's  only  title  being  the  equilable 
right  to  its  possession  for  the  purpose  of  acquiring  the 
legal  title;  hence,  under  the  doctrine  above  mentioned, 
the  court  had  jurisdiction  of  the  subject-matter.  The  re- 
spondents, however,  claim  that  this  case  comes  within  the 
rule  declared  in  Frink  v.  Thomas,  20  Or.  265  (25  Pac.  717, 
12  L.  R.  A.  239),  which  holds  that,  where  a  controversy 
between  claimants  to  public  lands  is  pending  before  the 
Land  Department  of  the  United  States,  a  court  of  equity 
will  not  undertake  to  inquire  into  the  question  as  to  who 
has  the  better  right  to  the  lands  under  the  provisions  of 
the  land  laws  of  the  government  prior  to  the  final  determi- 
nation of  the  cause  in  the  Land  Department.  It  does  not 
appear  from  the  record  in  this  case  that  such  controversy 
is  pending  before  the  Land  Department.  On  the  contrary, 
the  land  appears  to  be  unsurveyed,  and  the  Land  Depart- 
ment has  never  yet  acquired  any  jurisdiction  thereof  as 
between  these  litigants ;  therefore  the  rule  invoked  does 
not  apply  to  the  case  at  bar. 

2.  Does  the  complaint  state  facts  sufficient  to  constitute 
a  cause  of  suit?  The  respondents  contend  that  the  alle- 
gation in  the  complaint  regarding  the  conviction  and  con- 
finement of  the  appellant  in  the  penitentiary  negatives 
whatever  rights  he  may  have  as  shown  by  the  other  alle- 
gations in  the  complaint,  and  that  such  conviction  and  con- 
finement, are,  as  a  matter  of  law,  an  abandonment  of  his 
rights  to  the  lands  in  controversy  ;  and  in  support  of  their 
contention  that  the  voluntary  commission  of  a  crime,  fol- 
lowed by  conviction  and  confinement  in  the  penitentiary, 
is  in  effect  an  abandonment,  cite  the  case  of  Gore  v.  Brew, 
12  Land  Dec.  Dep.  Int.  239.  This  case,  however,  differs 
greatly  from  the  one  at  bar.  Brew  filed  a  homestead  entry, 
but  never  established  any  residence  thereon,  and  within 


Jan.  1906.]  Huffman  v,  Smyth.  579 

the  time  for  so  doing  was  convicted  and  sentenced  to  the 
penitentiary  for  a  period  of  six  years.  Some  two  years 
afterward  Gore  instituted  a  contest  on  the  ground  of  aban- 
donment, and  the  Land  Department  held  that,  Brew  never 
having  established  a  residence  on  the  land,  his  residence 
after  his  sentence  is  presumed,  in  contemplation  of  the  law, 
to  have  remained  where  it  was  at  the  time  of  his  arrest 
and  conviction.  In  the  decision  of  this  case  the  Assistant 
Secretary  stated  :  **  It  is  not  parallel  with  the  case  of  An- 
derson V.  Anderson^  5  Land  Dec.  Dep.  Int.  6,"  in  which  the 
decision  was  rendered  by  Secretary  Lamar,  who  was  after- 
wards an  associate  justice  of  the  Supreme  Court  of  the 
United  States,  and  in  which  he  said:  ''While  it  is  true 
that  residence  under  the  homestead  law  must  be  continu- 
ous and  personal,  it  is  also  true  that  residence  once  estab- 
lished can  be  changed  only  when  the  act  and  intention  of 
the  settler  unite  to  effect  such  a  change."  Anderson  had 
settled  on  the  tract  in  controversy  some  10  or  12  years 
prior  to  the  contest^  which  was  in  1883,  and  had  contin- 
uously resided  there  with  his  family  until  February,  1882, 
when  he  was  arrested,  and  afterwards  convicted  and  com- 
mitted to  the  penitentiary  for  life.  His  elaim  was  then 
contested  on  the  ground  of  abandonment,  but  the  contest 
was  dismissed,  and  the  honorable  secretary,  in  speaking 
of  this  matter,  said :  ''Anderson  had  lived  on  this  tract 
tor  many  years,  and  up  to  the  date  of  his  arrest  had  com- 
plied mith  the  requirements  of  the  law  as  to  residence  and 
cultivation  His  absence  from  the  land  since  that  date  is 
by  judicial  corapaiaion,  which  would  certainly  be  a  valid 
excuse  for  temporary  absence." 

The  distinction  apparently  aaade  by  the  Land  Depart- 
ment in  those  cases  arises  from  actual  residence.  If,  prior 
to  the  establishment  of  actual  residence  upaa  the  land  by 
the  settler,  he  is  prevented  from  establishing  9uch  resi- 
dence by  his  own  voluntary  act,  even  though  it  be  the  com- 


580  Bull  v.  Payne.  [47  Or. 

mission  of  a  crime  which  results  in  his  enforced  incarcer- 
ation, an  abandonment  follows  as  a  matter  of  law ;  but,  if 
the  settler  has  established  an  actual  residence  and  made- 
improvements  upon  the  land,  then  his  removal  therefrom 
and  enforced  absence  by  reason  of  conviction  for  crime- 
will  not  work  an  abandonment.  The  reason  for  this  latter 
rule  is  doubtless  twofold  :  First,  that  residence  and  aban- 
donment are  each  determined  in  part  by  intention,  and  it 
cannot  be  said  that  the  enforced  absence  of  a  settler  by 
compulsion  of  the  law  from  his  established  residence- 
carries  with  it  the  intention  to  establish  a  home  in  the 
place  of  his  confinement  or  the  intention  to  abandon  that 
from  which  he  has  been  unwillingly  removed.  Secondly,, 
that  abandonment  is  something  more  than  the  relinquish- 
ment of  possession.  It  must  be  the  voluntary  relinquish- 
ment of  possession  united  with  an  intention  to  abandon : 
1  Cyc.  6 ;  Dodge  v.  Marden,  7  Or.  457-460 ;  Hindman  v, 
Rizor,  21  Or.  112-119  (27  Pac.  13) .  We  therefore  hold  that 
the  mere  allegation  in  the  complaint  of  the  conviction  and 
confinement  of  the  appellant  in  the  penitentiary  is  not  as- 
a  matter  of  law  an  abandonment  of  his  rights  to  the  lands 
in  controversy. 

The  decree  of  the  lower  court  will  therefore  be  reversed^ 
and  the  cause  remanded  for  such  further  proceedings,  not 
inconsistent  with  this  opinion,  as  may  be  proper. 

Rbvbrsbd. 


Decided  20  March,  1906. 
BULL  V.  PAYNE. 

84  Pac.  007. 


Instructions  Must  be  Relevant  to  Issues. 

1.  Requested  Instructions  based  on  Issues  not  made  by  the  pleadings  should 
be  reftisod. 

For  instance :  Plaintiff  conveyed  a  mining  claim  to  decedent  to  sell,  and  de- 
cedent made  the  sale,  but  failed  U)  pay  plaintiff.  Bubsequently  plainUff agreed 
to  acci'pr  $:{00and  a  form  on  decedent  clearing  the  title  thereto.  Before  perfect- 
ing th<*  itle  decedent  died,  and  plaintiff  filed  a. claim  against  the  estate  fbr  f  1,000 


JMar.  1906.]  Bull  v.  Payne.  581 

on  the  original  afirreement,  which  was  rejected,  and  the  issue  at  the  trial  was 
limited  to  the  purchase  price  of  the  claim  at  the  time  It  was  conveyed.  JJeldt 
that  his  right  of  recovery  was  not  affected  by  the  subsequent  agreement. 

EXECirTOBS— COBBUBORATIVE  EVIDENCE  UNDER  SECTION  1161,  B.  A  C.  COMP. 

2.  The  evidence  presented  is  sufficiently  corroborative  of  the  testimony  of  the 
claimant  to  comply  with  the  requirement  of  Section  1101,  B.  A  C.  Comp. 

ExECUTOBS  —  Instructions  as  to  Allowance  of  Recovery  on  Claim- 
ant's Own  Testimony. 

8.  In  an  action  to  establish  a  claim  against  a  decedent,  an  instruction  that 
the  Jury  cannot  rely  on  claimant's  testimony  alone,  and.  If  he  comes  into  court 
without  any  evidence  except  his  own,  he  cannot  reeover,  and  that  while  he  is 
a  competent  witness  he  cannot  prevail  unless  he  proves  his  case  by  other  com- 
petent evidence,  is  sufficient  against  the  objection  that  it  admits  a  recovery  on 
claimant's  own  testimony* 

Admissions  as  Evidence  Against  Interest. 

4.  In  a  proceeding  to  establish  a  claim  against  a  decedent,  based  on  a  contract 
whereby  decedent,  on  claimant  conveying  to  him  a  mining  claim,  agreed  to  sell 
It  and  pay  claimant  a  specified  sum,  evidence  that  subsequent  to  the  sale  deced- 
ent orally  agreed  to  pay  claimant  a  specified  sum  and  to  convey  a  farm  on  per- 
fecting the  title  thereto  was  admlssable  as  showing  that  decedent  recognized 
some  liability  to  claimant. 

From  Josephine:  Hiero  K.  Hanna,  Judge. 

Statement  by  Mr.  Justice  Hailey. 

This  is  a  proceeding  by  Benjamin  Bull  against  P.  P. 
Payne  and  another,  as  executors,  to  enforce  a  claim  against 
the  estate  of  James  Lyttle,  deceased.  The  plaintiff  and 
Lyttle  were  old-time  friends,  and  at  one  time  had  been 
partners,  and  the  plaintiff  filed  upon  a  copper  claim  ad- 
joining a  like  claim  owned  by  Lyttle,  and  thereafter  deeded 
it  to  Lyttle  to  sell  with  his  claim  for  a  consideration  of 
<15,000,  out  of  which  Lyttle  was  to  pay  plaintiff  $1,500; 
but,  this  sale  having  failed,  Lyttle  afterward  sold  the  two 
claims  for  111,000,  but  did  not  pay  the  plaintiff  for  his 
claim.  After  this  sale,  and  before  the  entire  purchase  price 
had  been  paid  to  Lyttle,  plaintiff  and  Lyttle  had  an  under- 
standing whereby  plaintiff  agreed  to  accept  for  the  amount 
due  him  from  Lyttle  $300  cash  and  a  certain  farm  which 
had  been  sold  for  taxes,  if  Lyttle  would  clear  the  title  to 
the  farm,  which  was  then  in  litigation.  Pending  this  mat- 
ter Lyttle  died,  and  the  defendants  were  appointed  execu- 
tors of  his  estate.    Plaintiff  then  presented  his  claim  to  the 


582  Bull  v.  Payne.  [47  Or. 

defendants  for  $1,000,  "amount  due,  being  the  purchase 
price  of  a  copper  claim  known  as  the claim,  con- 
veyed to"  Lyttle  by  plaintiff.  Defendants  rejected  it,  and 
plaintiff  then  presented  it  to  the  county  court  for  allow- 
ance under  Section  1161,  B.  &  C.  Comp.  The  court  disal- 
lowed it,  and  he  then  appealed  to  the  circuit  court,  where 
a  trial  was  had  de  novo  before  a  jury,  and  a  verdict  for 
$1,000  was  rendered  in  his  favor,  upon  which  was  entered 
the  judgment  now  appealed  from  by  defendants.  The  case 
was  submitted  on  briefs,  under  the  proviso  of  Rule  16:  So- 
Or.  587,  600.                                                       Affirmed. 

For  appellants  there  was  a  brief  over  the  names  of  J.  H, 
Austin  and  H,  D,  Norton. 

For  respondent  there  was  a  brief  over  the  name  of  Rob- 
ert Glenn  Smith. 

Mr.  Justice  Hailey  delivered  the  opinion  of  the  court. 

1.  Based  upon  the  testimony  of  the  plaintiff  regarding  the 
agreement  to  accept  $300  and  the  farm  from  Lyttle  when 
the  title  thereto  had  been  cleared,  the  defendants  asked 
the  court  to  limit  the  amount  of  plaintiff's  recovery  in  this 
action  to  $300,  but  the  instruction  was  refused.  This  action 
is  based  upon  the  claim  presented  for  the  purchase  price 
of  the  mining  claim  conveyed  by  plaintiff  to  Lyttle,  and 
not  upon  the  subsequent  agreement  to  accept  $300  and  the 
farm ;  the  issue  in  the  case  being  limited  to  the  purchase 
price  at  the  time  the  mining  claim  was  conveyed.  The  in- 
struction was  properly  refused. 

2.  It  is  urged  that  the  court  erred  in  refusing  to  instruct 
*'that  the  plaintiff  has  failed  to  prove  his  case  by  compe- 
tent or  satisfactory  evidence  other  than  the  testimony  of 
himself.*  Therefore  your  verdict  should  be  in  favor  of 
the  defendants."  The  deed  conveying  the  mining  claim 
from  plaintiff  to  Lyttle  was  in  evidence.    The  lawyer  who 


•  Note  — This  refers  to  Section  lltfl,  B.  A  C.  Comp.  Repobtbb. 


Mar.  1906  ]  Bull  v.  Payne.  583 

drew  it  testified  that  no  consideration  passed  at  the  time 
it  was  drawn,  and  that  the  claim  was  put  in  Lyttle's  name 
so  he  could  sell  the  two  claims,  and  several  other  witnesses 
testified  to  conversations  with  Lyttle,  both  before  and  after 
the  sale  of  the  claim,  wherein  he  acknowledged  liability  to 
plaintiff  in  the  sum  of  $1,000  on  account  of  the  claim,  all 
of  which  evidence  was  competent,  and,  if  satisfactory  to 
the  jury,  was  suflScient  corroboration  of  the  testimony  of 
the  plaintiff,  within  the  rule  laid  down  in  Goltra  v.  Penlandy 
45  Or.  254  (77  Pac.  129).  The  instruction  was  therefore 
properly  refused,  and  the  question  left  to  the  jury  as  the 
judges  of  the  facts  in  the  case. 

3.  It  is  contended  that  the  court  erred  in  giving  certain 
instructions,  on  the  ground  that  such  instructions  ad- 
mitted the  right  of  the  plaintiff  to  recover  on  his  own  tes- 
timony uncorroborated.  We  do  not  so  read  the  instruc- 
tions.   The  court  expressly  stated  : 

**  You  cannot  rely  upon  his  [plaintiff's]  testimony  alone." 
Then,  again : 

"  If  Mr.  Bull  came  in  here  without  any  evidence  what- 
ever except  his  own,  he  could  not  recover  in  this  action." 

At  the  request  of  the  defendants  this  instruction  was 
given  : 

**I  instruct  you  that,  while  the  claimant  Bull  is  a  compe- 
tent witness  in  this  action,  he  cannot  prevail  unless  he 
proves  his  case  by  some  competent  or  satisfactory  evidence 
other  than  the  testimony  of  himself.  His  testimony  may 
be  used  to  corroborate  other  evidence  in  the  case,  but  it 
is  not  sufficient  in  itself  to  establish  his  claim." 

The  contention  of  the  defendants  therefore  on  this  point 
is  not  tenable. 

4.  The  defendants  further  except  to  that  portion  of  the 
charge  wherein  the  court  states  in  substance  that  the  con- 
tract for  the  sale  of  the  land  was  invalid  and  that  Lyttle 
could  not  comply  with  the  contract,  and  that  Bull  had  a 


584  Wallace  v.  Board  op  Equalization.      [47  Or. 

right  to  rescind  or  sue  for  the  cash  or  money  due,  on  the 
ground  that  there  was  no  evidence  or  issue  upon  which  to 
base  the  instruction,  and  that  it  is  against  the  law.  This 
objection  is  based  upon  the  theory  of  the  defendants  that 
plaintiff  could  only  recover  in  this  action  upon  the  agree- 
ment to  accept  $300  and  the  farm,  and  not  upon  the  orig- 
inal purchase  price  of  the  mining  claim.  All  the  testi- 
mony regarding  the  $300  cash  and  the  farm  was  received 
without  objection,  and  was  admissible  to  show  that  Lyttle 
recognized  some  liability  to  plaintiff,  and,  while  the  issue 
in  the  case  was  not  upon  that  agreement,  it  was  proper  for 
the  court  to  submit  the  matter  to  the  jury  as  having  some 
bearing  upon  the  real  issue,  and,  in  doing  so,  to  explain 
the  effect  of  such  agreement  and  the  rights  of  the  parties 
under  it.  The  agreement  regarding  the  farm  was  not  in 
writing  and  was  without  consideration,  for  the  plaintiff  had 
conveyed  the  mining  claim  long  prior  thereto,  and  did  not 
agree  to  release  his  claim  for  the  purchase  price  thereof 
until  the  title  to  the  farm  had  been  cleared  and  a  deed 
given  him.  The  court  was  therefore  right  in  telling  the 
jury  that  such  agreement  was  invalid  and  that  plaintiff 
had  a  right  to  sue  for  the  original  purchase  price.  There 
is  nothing  in  the  record  to  show  that  the  agreement  was 
binding  upon  either  party  at  law  or  in  equity. 

The  foregoing  being  the  only  assignments  of  error,  the 
judgment  of  the  lower  court  is  therefore  affirmed. 

Affirmed. 

.  Decided  24  July,  1906. 

WALIiAGE  V.  BOARD  OF   EaUALIZATION. 

86  Pac.  865. 

Effect  of  Practical  Constbuction  of  Constitution. 

1.  A  legislative  construction  of  a  constitutional  provision  which  has  been 
accepted  by  both  the  public  and  the  officers  of  the  law  for  many  years  without 
dispute  is  a  strong  argument  in  favor  of  the  validity  of  an  enactment  showing 
such  construction,  but  it  ctin not  prevail  against  the  clear  terms  of  the  constitu- 
tion itself. 


July,  1906.]     Wallace  v.  Board  of  Equalization.      585 

Taxation  ~ ExsMFTioNS  by  Legislature— Statutory  Constructiok. 

2.  In  the  absence  of  a  oonstltutlonal  Inhibition  the  right  to  make  reasonable 
exemptions  trom  taxation  rests  with  the  legislature,  but  where  there  is  a  doubt 
In  a  statute  attempting  to  make  an  exemption,  the  uncertainty  will  be  resolved 
In  favor  of  the  State  and  against  the  exemption. 

Constitutionality  of  Exemption  Statute. 

8.  A  statute  providing  for  an  exemption  in  favor  of  householders  is  unconsti- 
tutional in  that  it  provides  a  rate  of  taxation  that  is  neither  equal  nor  uniform 
between  residents  and  nonresidents,  thereby  violating  Const.  Or.  Art.  IX j  g  1, 
providing  for  an  equal  and  uniform  rate  of  taxation. 

From  Josephine :   Hibro  K.  Hanna,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  a  suit  by  E.  G.  Wallace  to  enjoin  the  board  of 
equalization,  the  county  court,  and  the  sheriff  of  Josephine 
County  from  allowing  certain  exemptions  from  taxation. 
It  is  alleged  in  the  complaint,  inter  alia,  that  the  plaintiffs 
are  residents  of  the  State  of  New  Hampshire;  that  they 
are  the  owners  in  fee  of  520  acres  of  land  in  Josephine 
Oountj,  Oregon,  describing  the  premises;  that  the  officers, 
board  and  court,  etc.-,  referred  to  are  allowing  and  threaten 
to  continue  permitting  to  each  householder  of  such  county 
an  exemption  from  taxation  of  certain  personal  property 
of  the  value  of  1300  or  less,  pursuant  to  an  act  of  the  Leg- 
islative Assembly  of  this  State,  amending  Section  3039, 
B.  &  C.  Comp.  (Laws  Or.  Sp.  Sess.  1903,  p.  28),  which  stat- 
ute  violates  Section  1  of  Article  IX  of  the  Constitution  of 
this  State,  thereby  imposing  on  plaintiffs  and  all  other 
nonresident  taxpayers  of  that  county,  for  whose  benefit 
this  suit  is  prosecuted  without  making  them  parties  on 
account  of  the  number  thereof,  an  unequal  rate  of  taxa- 
tion to  their  injury.  A  demurrer  to  the  complaint,  on  the 
ground  that  it  did  not  state  facts  sufficient  to  entitle  the 
plaintiffs  to  the  relief  sought,  having  been  sustained,  the 
suit  was  dismissed,  and  they  appeal.  Reversed. 

For  appellants  there  was  an  oral  argument  and  a  brief 
by  Mr,  William  C  Hale,  to  this  effect. 

The  property  attempted  to  be  exempted  from  taxation 
by  the  act  of  1903  is  clearly  not  within  the  classes  that  the 


586  Wallace  v.  Board  of  Equalization.      [47  Or. 

legislature  may  exempt  under  the  terms  of  the  Constitu- 
tion of  Oregon,  Art.  IX,  §  1,  and  no  property  not  within 
such  exemptions  can  be  relieved  of  its  proportionate  share 
of  taxes :  Crawford  v.  Linn  County,  11  Or.  482  (5  Pac.  738); 
Dundee  Mtg.  Co.y.  School Dist.^lQ  Fed. 359, and  21  Fed.  169; 
Hogg  V.  Mackay,  23  Or.  339,  341  (19  L.  R.  A.  77,  37  Am.  St. 
Rep.  682, 31  Pac.  779);  People  v.  Eddy,  43  Cal.  331  (13  Am. 
Rep.  143);  Fletcher  v.  Oliver,  25  Ark.  289;  Nashville  R.  Co. 
V.  Wilson,  89 Tenn. 597;  Huntington  v.  Worthen,  120  U.  S. 97. 

For  respondents  there  was  an  oral  argument  by  Mr,  Isaac 
Homer  Van  Winkle,  with  a  brief  over  the  names  of  Mr.  A.  M. 
Crawfordf  Attorney  General,  and  Mr.  Van  Winkle,  to  this 
effect. 

1.  All  territorial  laws  in  force  at  the  time  of  the  adop- 
tion of  the  State  Constitution,  where  not  inconsistent  with 
it,  remained  in  force  until  repealed:  Const.  Or.  Art.  XVIII^ 
§  7;  Harris  v.  Burr,  32  Or.  348,  358,  367  (52  Pac.  17,  39 
L.  R.  A.  768). 

2.  Exemptions  have  been  continued  by  the  legislatures 
ever  since  the  adoption  of  the  constitution,  and  have  been 
allowed  by  assessors  and  equalization  boards,  and  thus  a 
contemporaneous  pratical  construction  has  been  given  the 
constitution  and  the  statute  by  the  ofHcers  of  the  State, 
which  the  courts  should  be  very  slow  to  disturb:  Cooley, 
Const.  Lim.  (6  ed.),  p.  81;  Cooley,  Taxation  (3  ed.),  p.  346; 
Smith  V.  Osborne,  53  Iowa,  474;  Equitable  Life  Assur.  Soc.  v. 
Goode,  101  Iowa,  160  (63  Am.  St.  Rep.  378,  35  L.  R.  A.  690, 
70  N.  W.  113);  Cline  v.  Greenwood,  10  Or.  230,  240;  Craw- 
ford V.  Beard,  12  Or.  447, 452  (8  Pac.  537);  Eddy  v.  Kincaid, 
28  Or.  537,  556  (41  Pac.  156,  655);  Harris  v.  Burr,  32  Or. 
348,  358  (39  L.  R.  A.  768,  52  Pac.  17). 

3.  The  definition  of  a  charity  adopted  by  Chancellor 
Kent,  by  Lord  Lyndhurst,  and  by  the  Supreme  Court  of 
the  United  States  is  that  it  is  "a  gift  to  a  general  public 


July,  1906.]     Wallace  v.  Board  of  Equalization.      587 

use,  which  extends  to  the  poor  as  well  as  to  the  rich."  The 
Supreme  Court  of  Oregon  has  adopted  this  definition:  "A 
charity  in  the  legal  sense  may  be  defined  as  a  gift  to  be 
applied  consistently  with  existing  laws  for  the  benefit  of 
an  indefinite  number  of  persons,  either  by  bringing  their 
minds  or  hearts  under  the  influence  of  education  or  re- 
ligion, or  by  relieving  their  bodies  from  disease,  suffering 
or  constraint,  or  by  assisting  them  to  establish  themselves 
in  life,  or  by  erecting  and  maintaining  public  works  or 
buildings,  or  otherwise  lessening  the  burdens  of  govern- 
ment. It  is  immaterial  whetlaer  the  proposition  is  called 
'charitable'  in  the  gift  itself,  if  it  is  so  described  as  to  show 
that  it  is  charitable  in  its  nature."  If  the  definition  of 
charity  as  adopted  by  this  court  and  quoted  above  is  cor- 
rect, and  it  is  charitable  to  assist  people  in  establishing 
themselves  in  life,  or  to  lessen  the  burdens  of  government^ 
then  the  exemption  of  household  goods  and  the  tools,  im- 
plements, library,  etc.,  by  which  one  earns  his  living  can 
not  be  other  than  for  a  charitable  purpose.  It  is  true  that 
the  statute  does  not  mention  this  as  a  charitable  exemp- 
tion, nor  is  it  any  where  named  as  a  charitable  or  religious^ 
etc.,  institution,  but  if  we  may  apply  the  definition  of  a  legal 
charity  above  quoted,  "it  is  immaterial  whether  the  propo- 
sition is  called  charitable  in  the  gift  itself  if  it  is  so  de- 
scribed as  to  show  that  it  is  charitable  in  its  nature." 

Under  this  definition  and  the  provisions  of  the  statute 
in  question,  we  cannot  get  away  from  the  conclusion  that 
the  act  under  consideration  must  be  declared  within  the 
purview  of  the  constitution.  It  applies  to  rich  and  poor 
alike,  and  the  poor  are  in  the  majority.  It  applies  to  all 
householders,  and  it  must  be  admitted  that  the  majority 
of  householders  are  mechanics,  farmers,  laborers  and  work- 
ers of  all  kinds,  who  by  some  employment  must  earn  their 
daily  bread.    It  certainly  lightens  the  burdens  of  govern- 


588  Wallace  v.  Board  of  Equalization.      [47  Or. 

ment  upon  those  people  and  increases  it  proportionate!}' 
upon  the  wealth  of  the  State. 

It  is  evident  that  the  territorial  government  considered 
that  the  proper  policy  to  adopt  for  the  reason  that  they 
•enacted  the  exemption  law  which  tended  to  lessen  the 
burdens  of  government  to  the  poorer  classes,  and  that 
iSame  law,  as  we  have  hereinbefore  shown,  has  been  acted 
upon  and  treated  as  valid  from  1855  to  the  present  day, 
and  we  submit  that  the  courts  will  not  now  attempt  to  dis- 
turb it,  and  would  not  even  though  it  were  not  plainly 
authorized  by  the  constitution. 

The  following  authorities  are  apposite  on  this  point: 
Const.  Or.  Art.  IX,  §  1;  Pennoyer  y.Wadhams,  20  Or.  274, 
280  (11  L,  R.  A.  210, 25  Pac.  720);  Ould  v.  Washington  Has- 
pital,  95  U.  S.  303,  311;  Jackson  w.  Phillips,  14  Allen,  539, 
556;  Going  v.  Emery,  16  Pick.  107,  119  (26  Am.  Dec.  630); 
Bullard  v.  Chandler,  149  Mass.  532  (5  L.  R.  A.  104,  106, 
with  note,  21  N.  E.  951);  City  of  Petersburg  v.  Petersburg 
Benev,  Mech,  Assoc.,  78  Va.  431,  436;  Fire  Ins,  Patrol  v. 
Boyd,  120  Pa.  624  (1  L.  R.  A.  417,  15  Atl.  553,  6  Am.  St. 
Rep.  745);  Cottman  v.  Grace,  112  N.  Y.  299  (3  L.  R.  A.  142, 
147, 19N.E.839). 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

The  statute  in  pursuance  ot  which  the  partial  or  entire 
release  from  the  exaction  which  the  law  usually  demands 
from  personal  property,  to  support  the  State  and  county 
governments,  is,  as  far  as  involved  herein,  as  follows: 

**The 'following  property  shall  be  exempt  from  taxation  : 
•*  *  8.  If  owned  by  a  householder  and  in  actual  use,  or  kept 
for  use,  by  and  for  his  or  her  family;  household  goods, 
furniture  and  utensils;  two  cows,  ten  sheep,  five  swine, 
And  the  tools,  implements,  apparatus,  team,  vehicle,  har- 
ness, or  library  necessary  to  enable  any  person  to  carry 
on  his  trade,  occupation,  or  profession  by  which  such 
person  earns  his  or  her  living,  to  the  amount  of  three 


July,  1906.]     Wallace  v.  Board  of  Equalization.      589* 

hundred  ($300)  dollars,  the  articles  to  he  selected  by  such 
householder;  provided,  however,  that  when  the  assessed 
valuation  of  the  personal  property  above  enumerated  shalL 
amount  to  less  than  three  hundred  ($300)  dollars,  then 
only  such  amount  as  the  total  of  such  property  herein, 
enumerated  shall  be  exempt  from  taxation":  Laws  1903, 
Sp.  Sess.  p.  28. 

The  clause  of  the  organic  law  which  it  is  alleged  this- 
section  of  the  statute  contravenes,  is  as  follows : 

"The  legislative  assembly  shall  provide  by  law  for  uni- 
form and  equal  rate  of  assessment  and  taxation  ;  and  shall' 
prescribe  such  regulations  as  shall  secure  a  just  valuation 
for  taxation  of  all  property,  both  real  and  personal,  ex- 
cepting such  only  for  municipal,  educational,  literary,. 
scientilSc,  religious,  or  charitable  purposes,  as  may  be 
specially  exempted  by  law":  Const.  Or.  Art.  IX,  §  1. 

When  the  constitution  was  adopted,  February  14,  1859,, 
there  was  then  in  force  the  following. statute : 

"The  personal  property  of  every  householder,  to  the- 
amount  of  three  hundred  dollars,  the  articles  to  be  selected 
by  such  householder,  shall  be  exempt  from  taxation":. 
Gen.  Laws  1845-1864  (Compiled  and  Annotated  by  M.  P. 
Deady),  p.  630,  c.  2. 

The  fundamental  law,  perpetuating  the  enactments  then, 
on  the  statue  books,  contained  the  following  clause : 

"All  laws  in  force  in  the  Territory  of  Oregon  when  this, 
constitution  takes  effect,  and  consistent  therewith,  shall 
continue  in  force  until  altered  or  repealed":  Const.  Or. 
Art.  XVIII,  §  7. 

The  exemption  from  taxation  adverted  to,  which  was 
in  force  when  the  constitution  went  into  effect,  was  not 
altered  until  February,  1903,  when  in  amending  the  statute- 
the  clause  was  omitted  :  Laws  1903,  p.  216.  In  December- 
of  that  year  the  exemption  was  reenacted,  the  phrase  per- 
sonal property  mentioned  in  the  former  statute  being  lim- 
ited to  household  goods,  etc.,  as  first  hereinbefore  quoted:. 
Laws  1903  (Sp.  Sess.),  p.  28. 


690  Wallace  v.  Board  of  Equalization.      [47  Or. 

1.  It  is  argued  by  defendants'  counsel  that  as  the  ex- 
emption from  taxation  of  the  personal  property  of  a  house- 
holder, to  the  amount  of  $300,  remained  unaltered  on  the 
statute  books  from  the  date  of  its  enactment,  January  25, 
1855,  to  the  present  time,  except  during  the  interim  of  its 
repeal  and  reenactment  in  1903,  and  as  such  act  has  been 
universally  conceded  by  assessors,  tax  collectors  and  State 
and  county  officers  to  be  valid,  the  clause  of  the  constitu- 
tion relating  to  the  uniformity  of  assessment  and  taxation 
has  thereby  acquired  such  a  contemporaneous  and  prac- 
tical construction  as  ought  not  now  to  render  the  act  in 
question  subject  to  be  declared  invalid  by  the  courts. 
Legislative  interpretation  of  a  constitution,  as  evidenced 
by  the  enactment  of  laws  which,  for  many  years,  have  been 
cheerfully  acquiesced  in  by  the  people  affected  thereby, 
affords  potent  reason  for  sustaining  the  validity  of  such 
statutes :  Cline  v.  Greenwoody  10  Or.  230 :  Harris  v.  Burr, 
32  Or.  348  (52  Pac.  17,  39  L.  R.  A.  768).  Such  legislative 
construction  is  valid  unless  the  act  evidencing  the  inter- 
pfftUiiftn  conflicts,  with  the  organic  law  ( Crawford  v.  Beard, 
12  Or.  447,  8  Pac.  537),  in  w^biebcaa^thfi.jjrior  provisions 
of  the  constitution  become  the  paramount  nrfer  Kddji " 
Kincaid,  28  Or.  537(41  Pac.  156,  655). 

2.  Examining  the  clause  of  the  constitution  under  con- 
sideration and  the  legislative  construction  thereof,  evinced 
by  the  statute  exempting  certain  personal  property  from 
taxation,  it  remains  to  be  seen  whether  or  not  such  inter- 
pretation contravenes  the  fundamental  law.  Taxation  of 
property  is  the  rule,  while  exemption  thereof  from  bear- 
ing the  relative  part  of  the  public  burden  which  the  law 
imposes  for  the  support  and  maintenance  of  the  govern- 
ment is  the  exception:  Cool ey,  Taxation  (2  ed.),204;  City 
of  Petersburg  v.  Petersburg  Benev.  M.  Assoc.,  78  Va.  431.  In 
the  absence  of  any  constitutional  inhibition,  the  right  to 
make  reasonable  exemptions  from  taxation  rests  with  the 


July,  1906.]    Wallace  v.  Board  of  Equalization,      591 

legislature:  State  ex  rel.  v.  Whitworth,  8  Lea,  594.  Where, 
however,  there  is  a  doubt  in  a  statute  attempting  to  remit 
the  public  burden  that  all  property  should  bear,  the  un- 
certainty will  be  resolved  in  favor  of  the  State  and  against 
the  exemption:  Morris  v.  Masons,  68  Tex.  698  (5  S.  W.  519). 
**The  expression  of  one  thing  in  the  constitution,"  says 
Mr.  Chief  Justice  Thompson,  in  Page  v.  Alien,  58  Pa.  338 
(98  Am.  Dec.  272),  "is-  necessarily  the  exclusion  of  things 
not  expressed.  This  I  regard  as  especially  true  of  con- 
stitutional provisions,  declaratory  in  their  nature." 

3.  It  will  be  remembered  that  Section  1  of  Article  IX 
of  our  constitution  limits  the  power  of  the  legislative  as- 
sembly to  exempt  property  from  taxation  to  that  to  be 
used  for  municipal,  literary,  educational,  scientific,  relig- 
ious or  charitable  purposes.  It  is  argued  by  defendants' 
counsel  that  the  exemption  of  property  from  taxation,  as 
evidenced  by  the  act  under  consideration,  is  a  remission 
by  the  legislative  assembly  of  a  part  of  the  public  burden 
for  charitable  purposes  and  therefore  within  the  limits  of 
the  power  conferred.  The  exemption  is  evidently  a  val- 
uable donation,  but  it  is  certainly  not  made  for  a  chari- 
table purpose.  We  believe  that  the  clause  of  the  constitu- 
tion prohibits  the  legislative  assembly  from  granting  to 
the  householders  of  the  State  the  exemption  from  taxation 
of  the  property  attempted  by  the  statute,  which,  though 
in  force  when  the  organic  law  took  effect,' was  inconsistent 
therewith  and  hence  repealed  by  the  adoption  of  the  con- 
stitution, and  its  attempted  reenactment  is  void  as  repug- 
nant thereto,  on  the  ground  that  the  rate  of  assessment 
and  taxation  is  not  uniform  or  equal  as  between  house- 
holders of  the  State  and  nonresidents:  Const.  Or.  Art. 
IX,  §  1. 

It  follows  that  the  decree  of  the  lower  court  is  reversed, 
and  as  there  is  no  controversy  about  the  defendants,  as 
officers  of  Josephine  County,  attempting  to  enforce  the 


592  State  v.  Barnes.  [47  Or. 

statute,  a  decree  will  be  entered  here  perpetually  enjoin- 
ing them  from  allowing  the  exemptions  mentioned. 

Reversed. 


Decided  28  June,  1006. 

STATE  V.  BABNES. 

85  Pac.  998. 

HoMiciDB— Evidence  of  Corpus  Delicti. 

1.  In  a  prosecution  for  homicide  the  evidence  as  to  the  oorpus  delicti  must 
show  that  the  accused  unlawfully  caused  the  death  of  a  particular  human  beings 
and  the  proof  may  be  sufficient,  though  entirely  circumstantial. 

Homicide —  Identification  of  Body. 

2.  In  cases  of  homicide  it  is  not  always  possible  to  positively  and  directly 
identify  the  body  of  the  deceased,  as,  where  it  has  been  substantially  destroyed, 
and  in  such  cases  the  Jury  must  determine  the  question  of  Identity  from  the  evi> 
dence  presented. 

Criminal  Law  —  Remoteness  of  Evidence. 

8.  The  finding  of  property  of  deceased  concealed  in  the  possession  of  defend 
ant,  though  as  long  as  six  weeks  after  the  death  of  the  owner,  is  competent  to  be- 
presented  to  the  Jury,  and  is  not  too  remote. 

Criminal  Law  — Evidence  of  Attempted  Escape. 

4,  In  a  criminal  case  it  Is  competent  to  prove  that  the  defendant  attempted 
to  escape  from  confinement  after  being  arrested,  subject  to  such  explanation  as- 
may  be  offered. 

From  Douglas :  Lawrence  T.  Harris,  Judge. 

John  C.  Barnes,  having  been  convicted  of  murder  and 
sentenced  to  be  hanged,  prosecutes  this  appeal. 

Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  /.  ^. 
Buchanan^  J.  E.  Sawyers  and  Cardwell  &  Watson,  with  an 
oral  argument  by  Mr.  William  Wilshire  Cardwell  and  Mr. 
John,  Andrew  Buchanan. 

For  the  State  there  was  a  brief  over  the  names  of  A.  M. 
Crawjordj  Attorney  General,  Oeorge  M  Brown,  District 
Attorney,  and  J.  M.  Williamsy  with  an  oral  argument  by 
Mr.  Brown. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 
The  defendant,  John  C.  Barnes,  was  indicted,  tried,  and 
convicted  of  the  crime  of  murder  in  the  first  degree,  al- 


June,  1906.]  State  v.  Barnes.  593 

leged  to  have  been  committed  in  Douglas  County  April  28, 
1905,  by  killing  one  William  Graham,  in  some  way  and 
manner,  and  by  some  means,  instruments  and  weapons  to 
the  grand  jury  unknown.  He  appeals  from  the  judgment 
of  death  which  followed,  and  his  counsel  contend  that  the 
court  erred  in  refusing  to  instruct  the  jury,  as  requested^ 
to  return  a  verdict  of  not  guilty,  on  the  ground  that  the 
evidence,  which  is  wholly  circumstantial,  is  insufficient  to 
warrant  a  conviction: 

The  entire  testimony  given  at  the  trial  is  sent  up  with 
the  bill  of  exceptions,  from  which  it  appears  that  on  Mon- 
day, May  1,  1905,  at  about  10  o'clock  in  the  forenoon,  a 
human  skeleton  was  discovered  in  a  burning  log  heap 
a  few  feet  east  of  the  right  of  way  fence  near  the  railroad,' 
about  a  mile  and  a  quarter  north  of  Glendale.  Nearly  all 
the  flesh  had  been  consumed,  and  there  remained  of  the 
framework  intact  only  the  skull,  the  vertebrae,  and  parts 
of  the  shoulder  and  of  the  hip  bones.  The  structure  of 
the  skeleton  indicated  the  death  of  a  small  person,  but 
it  was  impossible  to  distinguish  the  sex.  A  soft  black  hat, 
having  two  matches  stuck  in  the  band,  was  found  at  the 
same  time,  hidden  beneath  the  loose  bark  of  a  stump  near 
the  tire.  There  were  also  discovered  in  the  ashes  about 
where  the  hips  of  the  skeleton  lay,  a  three-bladed  pocket 
knife,  and  near  it  some  nails  that  had  probably  been  driven 
in  the  soles  and  heels  of  the  shoes  worn  by  the  deceased. 
In  the  immediate  vicinity  were  seen  some  dark  spots  on 
the  grass,  earth,  and  stones,  supposed  to  be  blood  stains, 
and  the  grass  appeared  to  be  lodged,  as  if  some  object  had 
been  dragged  over  it.  After  quite  a  number  of  persons  had 
visited  the  place  where  the  skeleton  was  found,  a  leather 
belt  and  a  purse  were  discovered  in  the  brush  about  40 
feet  from  where  the  fire  had  been.  It  further  appeared 
that  Graham,  the  man  charged  to  have  been  killed,  was 

17  Or. 88 


594  State  v.  Barnes.  [47  Or. 

about  five  feet,  four  inches  in  height,  weighed  about  140 
pounds,  usually  had  matches  ia  his  hat  band,  and  always 
carried  a  large  Coitus  revolver  in  a  holster  made  from  a 
boot  top  and  suspended  by  a  leather  belt.  Notwithstanding 
the  fiber  part  of  the  handle  of  the  knife  had  been  burned, 
George  Wood,  as  a  witness  for  the  State,  claimed  to  recog- 
nize it  as  Graham's  property,  saying  he  had  given  it  to 
him.  The  hat  was  claimed  to  be  identified  as  Graham's  by 
S.  II.  Duley,  who  testified  that  he  had  seen  him  wear  it. 
Jesse  Clements  testified  that  the  belt  found  in  the  brush 
was  the  one  worn  by  Graham  by  which  his  revolver  was 
carried,  and  which  the  witness  recognized  by  the  clasp  of 
the  girdle  being  loose. 

•  The  testimony  tending  to  connect  the  defendant  with 
the  commission  of  the  crime  shows  that  he  and  Graham 
were  gold  miners  who  were  acquainted  with,  and  had  lived 
near,  each  other"  on  Dadd's  Creek,  Douglas  County,  for  sev- 
eral months  until  Thursday,  April  27, 1905,  when  Graham 
moved  across  Cow  Creek  to  TuUer's  Creek,  several  miles 
westerly,  and  was  last  seen  as  he  crossed  the  railroad  going 
to  his  new  residence.  The  defendant  on  the  next  day  bor- 
rowed a  Winchester  rifle  from  a  neighbor,  telling  him  that 
he  desired  to  shoot  a  wounded  deer  which  he  had  seen. 
That  evening,  as  he  returned  with  the  gun,  he  found  two 
men  at  his  cabin  who  had  been  hunting  for  stray  cattle, 
to  whom  he  stated  that  Graham  claimed  to  be  a  "bad  man," 
and  referring  to  the  latter  he  remarked :  "If  he  makes  a 
crooked  move  at  me,  I  will  kill  him."  He  further  stated  to 
his  visitors  that  they  need  not  arise  when  he  did  the  next 
morning,  for  he  was  obliged  to  get  up  early  so  as  to  meet 
a  man  at  a  tunnel  on  the  railroad.  Barnes  left  his  cabin 
Saturday  morning  about  4  o'clock,  taking  the  rifle  with 
him,  and  five  hours  thereafter  he  was  in  the  town  of  Glen- 
dale,  10  miles  southerly,  where  he  paid  a  bill  which  he 
owed  a  merchant,  and  received  a  sum  of  money  in  ex- 


June,  1906.]  State  v,  Barnes.  595 

change  for  a  piece  of  cast  gold  that  had  been  molded  by 
and  belonged  to  Graham,  the  identity  of  which  was  un- 
questionably established.  The  defendant  left  that  town 
soon  thereafter,  and  was  seen  at  several  points  as  he  walked 
northeHy  along  the  railroad  to  a  section  house  near  his 
home,  where  he  secured  his  supper.  He  returned  to  Glen- 
dale  that  night  and  became  intoxicated,  leaving  two  pack- 
ages in  the  saloon  where  he  had  been  imbibing.  The  next 
day,  Sunday,  April  30th,  he  was  seen  on  the  railroad  car- 
rying a  Winchester  rifle,  and,  meeting  a  man  who  appeared 
as  a  witness  at  the  trial  herein,  he  told  him  he  had  been 
hunting,  describing  the  route  he  claimed  to  have  traveled. 
Barnes  returned  the  rifle  that  day  and  paid  the  man  from 
whom  he  borrowed  it  10  cents  for  the  cartridges  he  had 
used.  About  noon  that  day  the  defendant  engaged  one  G. 
L.  Hittsman  to  help  him  carry  some  provisions  that  had 
come  by  rail  up  a  hill  towards  his  cabin,  and  as  they  halted 
for  a  moment's  rest,  Barnes,  unwrapping  a  package,  ex- 
hibited a  revolver,  whereupon  his  companion,  referring  to 
Graham,  said,  *'You  have  got  Bill's  gun,"  and  the  defend- 
ant replied,  "Oh!  yes;  I  bought  it  from  Bill." 

Sunday  evening  Barnes  went  south  on  the  train  towards 
Glendale.  The  next  morning,  May  1, 1905,  which  will  be 
remembered  as  the  day  when  the  skeleton  was  found,  he 
called  at  a  saloon  in  that  town  about  5  o'clock  and,  waking 
the  barkeeper,  he  secured  a  drink  of  whisky.  At  1  o'clock 
that  day  he  was  about  a  mile  and  a  quarter  north  of  Glen- 
dale, where  he  met  one  W.  H.  Pruett,  to  whom  he  stated 
that  Graham  had  gone  to  Mule  Creek,  a  tributary  of  the 
Umpqua  River,  prospecting,  and  that  he  had  purchased 
from  him  some  sluice  boxes  and  was  going  to  his  cabin 
after  them.  Pruett  told  him  the  boxes  referred  to  never 
belonged  to  Graham,  but  had  been  owned  by  another  per- 
son from  whom  the  narrator  purchased  them.  Barnes, 
upon  receiving  this  information,  remarked :    "I  am  so 


596  State  v,  Barnes.  [47  Or. 

damned  tired  and  sore  that  I  won't  go  any  further.  When 
you  see  Bill  (meaning  Graham),  tell  him  that  I  got  thi» 
far  with  you  and  turned  around  and  went  back."  Where- 
upon  he  departed.  The  defendant  on  Tuesday  night  told 
a  hotel  keeper  atGlendale  that  Graham,  possessing  a  few 
dollars,  had  gone  to  California,  and,  referring  to  the  nails 
discovered  in  the  ashes,  he  further  said  if  Graham  was 
found  he  would  have  on  old  rubber  boots.  The  sheriff  of 
Douglas  County,  on  Friday,  May  5, 1905,  visited  Graham's- 
cabin,  which  was  locked  ;  but,  openingit,  he  found  the  bed 
in  order,  some  wearing  apparel,  provisions,  dough  mixed 
for  bread,  water  left  in  pails,  and  two  pairs  of  rubber  boots. 
The  following  Sunday  Barnes  was  apprehended  at  his- 
cabin,  underneath  which  there  was  then  found  wrapped 
in  a  gunny  sack  a  pistol  that  was  identified  as  Graham's,, 
and  referring  thereto  the  defendant,  though  claiming  to 
have  owned  the  gun  several  years,  said  to  the  sheriff  and 
to  the  men  accompanying  him  :  **I  put  the  revolver  there,, 
and  I  did  not  expect  you  fellows  to  find  it."  At  the  time 
the  arrest  was  made,  the  defendant's  cabin  was  searched^ 
and  in  emptying  a  sack  of  potatoes  a  chunk  of  tinfoil  rolled 
out  and  fell  to  the  floor  ;  but,  without  any  examination,  it 
was  picked  up  and  placed  with  the  potatoes  in  the  sack 
which  had  contained  them.  The  sheriff,  about  May  31^ 
1905,  took  the  defendant's  goods  and  provisions  from  his- 
cabin  to  the  house  of  a  neighbor,  who,  taking  pot4itoes 
from  a  sack  which  had  been  so  brought  to  him,  saw  a  piece 
of  tinfoil  which  he  swept  with  the  dust  into  a  fireplace,, 
where  it  remained  until  the  17th  of  the  next  month  when, 
concluding  to  make  solder  of  the  foil,  he  picked  it  up  and 
unrolled  it,  discovering  inwrapped  therein  a  diamond  ring 
that  hud  belonged  to  and  been  worn  by  Graham.  The 
defendant  gave  no  testimony  at  his  trial  and  called  only 
two  hardware  dealers,  who  as  witnesses  severally  testified 
that  the  knife,  the  parts  of  which  were  found  in  the  ashes^ 


June,  1906.]  State  v.  Barnes.  597 

and  the  revolver  that  was  discovered  beneath  Barnes'  cabin 
were  generally  kept  and  sold  by  merchants  engaged  in 
their  trade.  It  also  appeared  that  while  the  defendant  was 
incarcerated  in  jail  awaiting  trial  on  the  charge  of  which 
he  was  convicted,  he  attempted  to  escape. 

1.  It  is  argued  by  defendant's  counsel  that  the  evidence 
hereinbefore  detailed,  which  we  deem  a  fair  statement  of 
that  given  at  the  trial,  is  insufficient  to  establish  either 
the  death  of  William  Graham,  the  person  charged  to  have 
been  killed,  or  the  criminal  agency  of  the  defendant.  In 
State  V.  Williams,  46  Or.  287  (80  Pac.  655),  it  was  held  that 
circumstantial  evidence  alone  was  sufficient  to  prove  the 
death  of  the  person  alleged  to  have  been  killed' and  also 
the  criminal  agency  of  the  party  .accused  of  the  commis- 
sion of  the  offense.  In  that  case  the  person  charged  to 
have  been  killed  was  last  seen  in  the  presence  of  the  de- 
fendant in  that  action,  and  there  were  found  in  what  was 
supposed  to  have  been  a  temporary  grave  gunny  sacks 
that  had  been  saturated  with  a  liquid  which  by  chemical 
analysis,  was  claimed  to  have  been  human  blood,  and  also 
a  lock  of  a  woman's  hair  which  was  recognized  as  that  of 
his  alleged  victim.  The  evidence  necessary  to  establish 
the  corpus  delicti  in  cases  of  homicide  must  show  (1)  that 
the  life  of  a  human  being  has  been  taken,  which  question 
involves  the  subordinate  inquiry  as  to  the  identity  of  the 
person  charged  to  have  been  killed  ;  and  (2)  that  the  death 
•was  unlawfully  caused  by  the  party  accused  thereof,  and 
by  no  other  person.  In  Campbell  v.  People,  159  111.  9  (42 
N.  E.  123,  50  Am.  St.  Rep.  134),  it  was  held  that  the  corpus 
delicti  might  be  proved  in  a  prosecution  for  murder  by 
circumstantial  evidence  where  that  was  the  best  proof  ob- 
tainable ;  but  that  great  caution  should  be  observed  in 
acting  upon  it. 

2.  Reviewing  the  evidence  introduced  in  the  case  at 
bar,  to  prove  the  first  element  stated.  Dr.  W.  H.  Dale,  a 


598  State  v.  Barnes.  [47  Or. 

licensed  practicing  physician,  and  a  graduate  of  a  reputable 
medical  college,  who  was  a  witness  at  the  coroner's  inquest, 
testified  that  he  was  positive  the  skeleton  found  in  the 
burning  log  heap  was  the  remains  of  a  human  being.    A& 
to  the  identity  of  the  remains,  it  is  not  necessary  that  the 
evidence  should  be  direct  and  positive,  where  such  proof 
is  impracticable :    Wills,  Cir.  Ev.  (6  Am.  ed.),  213 ;  Taylor 
v.  State,  3d  Tex.  97.    Thus  in  Rex  v.  Clewes,  4  Oar.  &  R 
221,  a  carpenter's  rule  and  the  remains  of  a  pair  of  shoes 
found  near  a  skeleton  were  in  part  the  means  used  to 
identify  the  relics  of  a  man  who  had  been  buried  23  years. 
In  Commonwealth  v.  Webster,  5  Gush.  (Mass.)  295  (52  Am. 
Dec.  711),  the  metallic  teeth  of  a  person  found  in  a  fur- 
nace were  held  sufficient  to  prove  the  identity  of  a  person 
charged  to  have  been  killed.    In  State  v.  Williams,  7  Jones 
(N.  C),  446  (78  Am.  Dec.  248),  the  charred  remains  of  a 
missing  woman  were  identified  by  the  finding  of  certain 
hair  pins  with  the  bones  and  proof  that  the  deceased  was 
in  the  habit  of  wearing  such  pins  two  or  three  years  prior 
thereto.    In  Jackson  v.  State,  29  Tex.  App.  458  (16  S.  W. 
247),  the  identity  of  a  child  was  proven  by  finding  a  num- 
ber of  small  bones,  locks  of  short  curly  black  hair,  and  a 
small  calico  bonnet.    So,  too,  in  State  v.  Martin,  47  S.  C.  67 
(25  S.  E.  113),  the  identity  of  the  charred  remains  of  a  per- 
son was  established  by  finding  in  the  ashes  with  the  skele- 
ton a  piece  of  burned  cloth  like  the  woven  fabric  of  which 
his  trousers  were  made,  and  which  he  wore  at  the  time  of 
his  disappearance,  and  by  discovering  in  the  same  place 
a  slate  pencil  with  certain  indentations  thereon.    In  the 
case  at  bar  the  witness  George  Wood,  referring  to  the  knife 
found  in  the  ashes,  in  answer  to  the  direction :   "Tell  the 
jury  why  you  know  the  knife,*'  said  :    *'!  know  the  knife 
by  the  shape,  the  make  and  by  the  defects  in  it.    The  knife 
was  always  loose  in  the  springs  here  and  hard  to  open. 
That  is  the  reason  that  I  gave  it  to  Graham." 


June,  1906.]  State  v.  Barnes.  599 

It  is  argued  by  defendant's  counsel  that,  the  fire  having 
consumed  a  part  of  the  handle  of  the  knife,  the  heat  was 
sufficiently  intense  to  injure  the  springs,  and,  this  being  so, 
the  witness  could  not  recognize  the  instrument,  which  was 
commonly  sold  by  hardware  dealers,  and  hence  the  skel- 
eton was  not  identified  as  the  remains  of  Graham.  The 
testimony  so  given  by  Wood  was  competent  and  its  ade- 
quacy was  a  question  which  the  jury  were  called  upon  to 
determine:  Udderzook  v.  Commonwealth,  76  Pa.  340.  The 
hat  which  was  found  beneath  the  loose  bark  of  an  old  stump 
near  the  fire,  at  the  time  the  skeleton  was  taken  from  the 
ashes,  was  identified  as  the  head  covering  worn  by  Graham, 
whose  habit  it  was  to  carry  matches  stuck  in  his  hat  band. 
The  finding  of  two  matches  30  placed  in  the  hat  referred 
to  affords  corroborative  evidence  of  the  identity  of  the  per- 
son who  carried  them  in  this  peculiar  manner.  So,  too, 
the  finding  of  the  belt  in  the  brush,  though  not  discovered 
until  several  davs  after  the  fire,  was  identified  as  Graham's 
girdle.  The  finding  near  the  remains  of  a  human  being 
of  property  that  is  recognized  as  having  belonged  to  a 
missing  p^son  is  a  circumstance  tending  to  identify  the 
body  of  the  deceased.  It  is  possible,  however,  that  such 
property  may  have  been  purposely  placed  by  its  owner 
where  it  was  found  to  induce  the  belief  that  a  living  per- 
son is  in  fact  dead,  or  that  such  personal  chattels  were  in- 
tentionally put  in  the  place  indicated  to  create  an  infer- 
ence of  the  identity  of  the  deceased  where  doubt  on  that 
subject  exists.  The  degree  of  proof  resulting  from  such 
discovery  necessarily  depends  upon  the  opportunity  which 
time  and  interest  afford  a  designing  person  to  manufac- 
ture evidence.  The  finding  of  the  belt,  several  days  after 
the  inquest  was  held,  when  there  had  been  time  and  chance 
to  create  an  inference  of  the  identity  of  the  deceased,  weak- 
ens the  evidence  which  the  circumstance  of  the  discovery 
would  ordinarily  produce,  if  seasonably  made.    Such  evi- 


600  Statk  v.  Barnes.  [47  Or. 

dence  was  admissible  and  it  will  be  presumed,  iu  the 
absence  of  any  showing  to  the  contrary,  that  the  court  cor- 
rectly instructed  the  jury,  as  to  the  degree  of  proof  which 
the  circumstances  adverted  to  furnished. . 

It  will  be  remembered  that  the  parts  of  the  skeleton  found 
in  the  burning  log  heap,  indicated  the  remains  of  a  small 
person.  This  fact  alone  is  not  controlling  on  the  question  of 
identity,  for  the  human  framework  discovered  might  have 
been  that  of  any  person  corresponding  in  stature  with  Gra- 
ham {Commonwealth  v.  Webster,  5  Gush.  295,  52  Am.  Dec. 
711),  but  when  this  circumstance  is  considered  in  connec- 
tion with  the  other  attending  conditions,  we  think  the  jury 
were  authorized  in  concluding  as  the  verdict  implies,  that 
the  remains  were  those  of  the  person  charged  to  have  been 
killed.  The  consumption  of  a  human  body  by  fire  does 
not  necessarily  repel  an  inference  of  suicide  or  of  an  un- 
intentional death,  for  the  dissolution  may  have  been  caused 
by  purposely  leaping  or  accidently  falling  into  a  fire,  or 
by  being  unable  to  escape  from  a  burning  building.  So, 
too,  a  human  body  may  be  destroyed  by  that  means  after 
death  had  resulted  from  natural  causes.  The  finding  of 
the  remains  of  a  healthy  person,  like  Graham,  in  a  burn- 
ing log  heap,  where  escape  was  possible  in  case  contact 
with  the  fire  was  accidental,  and  probably,  where  imme- 
diate intense  pain  resulting  from  the  flame  would  cause 
an  abandonment  of  an  attempt  at  self-destruction,  must 
necessarily  repel  every  inference  of  death  by  means  of  such 
a  fire.  This  conclusion  is  fortified  by  the  testimony  of  a 
locomotive  fireman  who  said  that  on  Monday,  May  1, 1905, 
at  about  2:20  a.  m.,  he  saw,  on  the  east  of  the  railroad, 
about  a  mile  and  a  quarter  north  of  Glendale,  a  fire  and  a 
man  standing  by  it.  From  this  declaration  under  oath 
it  would  seem  to  appear  that  the  fire  which  consumed 
Graham's  body  was  not  ignited  by  him.  The  evidence  of 
what  was  supposed  to  have  been  blood  stains  in  the  vicin- 


June,  1906.]  State  v.  Barnes.  601 

ity  of  the  a8he8,  and  the  appearance  of  the  grass  and  weeds 
indicating  that  some  object  had  been  dragged  towards  the 
fire,  thereby  lodging  the  vegetation  and  staining  the  right 
of  way  fence  with  blood,  warranted  the  juvy  in  conclud- 
ing that  Graham's  death  did  not  result  from  natural  causes 
or  from  suicide. 

3.  This  brings  us  to  a  consideration  of  that  branch  of 
the  question  which  involves  the  criminal  agency.  It  will 
be  remembered  that  on  Saturday,  April  29, 1905,  at  about 
9  o'clock  in  the  morning,  the  defendant  paid  a  bill  which 
he  owed  a  merchant  in  Glendale  by  giving  a  piece  of  gold 
that  had  belonged  to  Graham.  The  next  day  Barnes  ex- 
hibited a  revolver  to  the  witness  Hittsman,  saying  he 
had  purchased  it  from  Graham,  which  gun  was  found  when 
the  defendant  was  arrested  hidden  beneath  his  cabin.  At 
the  time  the  revolver  was  found  there  was  also  seen  in  a  sack 
of  potatoes  in  Barnes'  cabin  a  piece  of  tinfoil.  When  these 
potatoes  were  taken  to  a  neighbor's  house  and  emptied, 
there  dropped  from  the  sack  a  piece  of  tinfoil,  which  being 
thereafter  unrolled,  a  diamond  ring  was  discovered  that 
had  belonged  to  Graham.  In  Williams  v.  Commonwealth, 
29  Pa.  102,  it  was  held  that  an  instruction  directing  the 
jury  to  infer  the  commission  of  the  crime  of  murder  from 
the  possession  of  stolen  articles,  where  the  evidence  was 
iidequate  to  warrant  a  conviction  of  the  latter  crime,  cor- 
rectly stated  the  law  applicable  to  the  facts  involved.  In 
deciding  that  case,  Mr.  Justice  Porter,  comparing  the  in- 
struction referred  to  with  another  that  had  been  given,  says: 
**In  that  portion  of  the  charge  which  treats  of  the  posses- 
sion of  the  coin,  and  the  right  of  the  jury  to  infer  a  higher 
crime  from  the  possession  of  stolen  articles,  suflScient  to 
convict  the  defendant  of  larceny,  we  see  as  little  to  con- 
demn. If  criminal  offenses  are  to  be  punished,  circum- 
stances like  these  must  be  laid  hold  of  to  prove  them."  In 
Poe  V.  StatCy  10  Lea  (Tenn.),673,  a  similar  instruction  was 


602  State  v.  Barnes.  [47  Or. 

given  at  the  trial  of  the  plaintiffs  in  error,  who  were  charged 
with  the  commission  of  the  crime  of  murder  in  the  first 
degree,  and  it  was  held  that  no  error  was  committed,  the 
court  saying:  *'In  fact,  the  recent  possession  of  stolen  ar- 
ticles under  these  circumstances  would  not  merely  be  a 
strong  circumstance,  but  raise  a  presumption  of  guilty 
upon  which  the  jury  should  convict."  So,  too,  in  State  v. 
Anderson,  10  Or.  448,  a  pocket  book  containing  money  that 
had  belonged  to  a  person  alleged  to  have  been  killed  hav- 
ing been  found  in  the  possession  of  the  defendant  was  con- 
sidered as  tending  to  establish  his  criminal  agency. 

An  exception  was  taken  by  defendant's  counsel  to  the 
admission  of  testimony  as  to  the  finding  of  Graham's  dia- 
mond ring,  on  the  ground  that  the  circumstance  was  too 
remote,  indefinite  and  uncertain.  In  Morris  v.  State,  30 
Tex.  App.  95  (16  S.  W.  757),  testimony  of  the  finding  in  a 
well  of  a  watch,  the  property  of  a  person  charged  to  have 
been  killed,  several  months  after  the  alleged  murder,  was 
held  admissible  in  connection  with  other  evidence  proving 
that  on  the  day  the  defendant  was  arrested  he  had  access 
to  the  well  and  could  have  thrown  the  watch  into  it.  It 
will  be  remembered  that  on  the  day  Barnes  was  arrested 
there  was  found  in  his  sack  of  potatoes  a  small  roll  of  tin- 
foil, the  identity  of  which  was  reasonably  accounted  for, 
which  being  unwrapped  revealed  Graham's  diamond  ring. 
Evidence  of  this  circumstance  in  connection  with  the 
others  was,  in  our  opinion,  admissible.  In  the  case  of  State 
V.  Anderson,  10  Or.  448,  the  defendant's  contradictory  state- 
ments as  to  the  whereabouts  of  the  missing  person  were 
also  regarded  as  tending  to  create  an  inference  of  his  guilt. 
In  the  case  at  bar  Barnes  stated  that  Graham  had  gone  to 
Mule  Creek  prospecting  and  afterward  that  he  had  gone 
to  California,  saying  that  Graham  had  a  few  dollars,  thereby 
implying  that  he  was  able  to  travel  by  rail.  As  Mule  Creek 
is  situated  west  of  Glendale  and  California  south  of  that 


Dec.  1905.]  Marks  v.  Herren.  603 

town,  it  was  possible  for  a  person  going  to  the  former  place 
to  continue  his  journey  to  the  sister  State ;  but  as  the  travel 
by  rail  is  so  much  easier  and  speedier  than  journeying  over 
the  mountains,  the  defendant's  declarations  should  be  con- 
sidered as  tending  to  incriminate  him :  State  v.  Reedy  60 
Me.  550. 

4.  The  defendant  having  attempted  to  escape  from  the 
jail  in  which  he  was  confined,  awaiting  trial  on  the  charge 
of  which  he  was  convicted,  is  also  a  circumstance  slightly 
tending  to  prove  his  guilt.  Circumstantial  evidence  is  legal 
and  competent  in  the  gravest  kind  of  criminal  cases;  and 
if  it  is  of  such  a  character  as  to  exclude  every  reasonable 
hypothesis,  other  than  that  the  party  accused  of  the  com- 
mission of  the  offense  is  guilty  thereof,  it  is  sufficient  to 
authorize  a  conviction. 

Believing  that  the  attending  circumstances  adverted  to 
are  of  the  character  indicated,  and  that  other  alleged 
errors  that  have  been  assigned  are  unimportant,  the  judg- 
ment is  affirmed.  Affirmed. 


Argued  19  October,  decided  4  December,  1905. 

KABKS  V,  HEBBEN. 

83  Pac.  385. 

Trial  —  Refusi-ng  to  Give  Requested  Charge  Already  Given.* 

1.  A  trial  coart  need  not  give  to  a  Jary  a  requested  instruction  that  has 

already  been  substantially  given. 

For  example :  The  question  being  whether  a  wife  was  bound  by  her  husband's: 

lease  of  her  land  to  defendant,  a  request  to  charge  that,  if  the  wife  knowingly  per- 


*  Note.— This  rule  of  practice  has  been  applied  in  the  following  Oregon  cases : 
State  v.  Brown,  7  Or.  188,  208 ;  i»cUe  v.  Andernon,  10  Or.  448,  4«Mfl2 ;  State  v.  Roberts^ 
16  Or.  187, 197  (13  Pac.  8e«);  Roth  v.  North  Pae.  Lum.  Co.,  18  Or.  205,  220  (2^  Pac.  842); 
State  V.  Brown,  28  Or.  147,  1«5  (41  Pac.  1012);  StcUe  v.  Magert,  36  Or.  38,  51  (65  Pac.  520); 
Savage  v.  Savage,  36  Or.  288,  278  (59  Pac.  4<<1);  State  v.  Tucker,^  Or.  292,  306  (61  Pac. 
894);  Lieuallen  v.  Mosgrove,  37  Or.  446,  463  (01  Pac.  1022);  State  v.  McDaniel,  39  Or. 
161, 181  (66  Pac.  620);  Bo]/d  v.  Portland  Elec.  Co.,  40  Or.  126,  187  (66  Pac.  576);  State  v. 
Sally,  41  Or.  366,  309  (70  Pac.  896);  Crossen  v.  Orandy,  42  Or.  282. 2a7  (70  Pac.  906);  An- 
derson v.  Oregon  R.  Co.,  45  Or.  211,  224  (77  Pac.  119);  State  v.  £ggle»ton,4o  Or.  346, 359^ 
(77  Pac.  738);  State  v.  Gray,  46  Or.  24,  81  (79  Pac.  58);  Barnes  v.  Leidigh,  46  Or.  43,  4ft 
(79  Pac.  61);  Padflc  Export  Co.  v.  North  Pac.  Lum.  Cb.,  46  Or.  194,  205  (80  Pac.  106); 
State  V.  Smith,  47  Or.  485  (83  Pac.  865) .—  Reporter. 


604  Marks  r.  Hkrren.  [47  Or. 

mitted  the  hasband  to  hold  himself  out  as  her  agent  as  to  her  land,  »he  would  be 
held  to  have  adopted  his  acts  and  be  bound  by  his  contracts,  and  that  where  one 
Is  shown  to  have  been  an  agent,  and  continues  to  act  as  such  within  the  Fcopeof 
his  former  authority,  a  continuance  of  his  authority  is  presumed,  was  properly 
refused,  the  court  having  already  Instructed  that  the  husband  could  have  been 
an  agent  of  his  wife  by  his  generally  transacting  business  of  such  character  in  rela- 
tion to  her  land,  and  that  if  she  gave  him  general  authority,  which  was  generally 
known,  it  would  be  presumed  to  continue  until  parties  that  knew  of  that  au- 
thority had  actual  notice  of  its  cessation. 

Definition  of  Word  "  Habitually." 

2.  As  used  in  an  instruction  that  in  order  to  be  bound  by  the  conduct  of  an 
■alleged  agent  the  principal  must  have  "habitually"  allowed  the  agent  to  repre- 
sent him,  and  that  the  agent  must  have  *'  habitually"  acted  in  similar  matters, 
the  word  ** habitually"  does  not  mean  so  often  repeated  as  to  be  a  habit,  but 
rather  that  if  the  principal  ratified  all  the  contracts  assumed  to  have  been  made 
by  such  agent,  the  agency  might  be  implied,  while  if  any  of  such  contracts  had 
been  repudiated,  such  disavowal  would  repel  such  implied  agency. 
• 

From  Clackamas :  Thomas  A.  McBride,  Judge. 

Action  to  recover  possession  of  real  property,  resulting 
in  a  judgment  for  plaintiff,  from  which  defendant  appeals. 

Affirmed. 

For  appellant  there  was  an  oral  argument  by  Mr,  A.  M. 
Cannon,  with  a  brief  over  the  name  of  Carson  &  Cannon 
to  this  effect. 

I.  Where  a  party  asks  of  the  court  an  instruction  that 
is  brief,  concise,  and  states  the  law  correctly  as  applicable 
to  the  facts  in  dispute,  he  is  entitled  to  have  it  given  to 
the  jury;  and  if  the  court  gives  the  charge  in  his  own 
words  he  must,  in  giving  the  charge  requested,  confine 
himself  to  that  point  alone,  disencumbered  with  and  dis- 
-connected  from  any  other  point  in  the  case,  nor  is  he  per- 
mitted to  change  its  sense  or  to  so  qualify  it  as  to  weaken 
its  force :  Baltimore  &  0.  R.  Co,  v.  LaffertySy  14  Grat.  478 ; 
Conrad  v.  Lindley,  2  Cal.  133;  People  v.  Williams^  17  Cal. 
148;  Cohen  v.  Schlick,  6  111.  App.  280;  West  Chicago  St. 
Ry,  Co,  V.  Groschon,  51  111.  App.  163;  Severance  v.  Melick, 
15  Neb.  610 ;  Babbit  v.  Bumpus,  73  Mich.  340 ;  Parish  v. 
Bradley,  73  Mich.  613  ;  Thompson  v.  Thompson,  77  Ga.  697  ; 
JBrink  v.  Black,  77  N.  C.  59 ;  Patterson  v.  Mclver,  90  N.  C. 
493. 


Dec.  1905.]  Marks  v.  Herrbn.  605> 

II.  The  action  of  the  court  in  telling  the  jury  that  where- 
an  attempt  is  made  to  show  agency  by  a  course  of  conduct, 
the  conduct  must  be  "habitually"  indulged  in  is  unwar- 
ranted by  law  and  clearly  error,  for  the  word  has  such  a 
meaning  that,  as  applied  by  the  court  below,  agency  never 
could  be  proven  by  a  course  of  conduct:  Dove  v.  Nunariy 
63  Cal.  400 ;  Johns  v.  Johns,  57  Miss.  530 ;  Northwestern- 
Mut  lAfe  Ins.  Co,  v.  Muskegon  Bank,  122  U.  S.  501  (7  Sup. 
Ct.  1221) ;  Meathe  v.  Meathe,  83  Mich.  150  (47  N.  W.  109); 
Maca  V.  Handy^  39  La.  Ann.  491. 

For  respondent  there  was  a  brief  over  the  names  of  Dim- 
ick  &  Dimick,  G.  E.  Hayes,  and  Richardson  &  Richardson,, 
with  oral  arguments  by  Mr,  Grant  B  Dimick  and  Mr,  Sam- 
uel T,  Richardson, 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

This  is  an  action  by  Sarah  E.  Marks  against  E.  C  Herren 
to  recover  the  possesion  of  certain  real  property.  The  an- 
swer admits  plaintiff^s  ownership  of  the  land,  denies  her 
right  to  the  immediate  possession  thereof,  and  avers  a  lease 
of  the  premises  from  plaintiff's  husband,  who  in  making 
the  demise  acted  as  her  agent.  The  reply  denies  the 
alleged  agency,  and,  the  cause  being  tried,  judgment  for 
the  restitution  of  the  premises  was  rendered  against  the 
defendant,  and  he  appeals. 

1.  The  bill  of  exceptions  shows  that  at  the  trial  the  de- 
fendant introduced  testimony  tending  to  show  that  John  R. 
Marks,  plaintiff's  husband,  acted  as  her  agent  in  selling 
produce  received  as  rent  of  the  demanded  premises;  that 
he  negotiated  a  sale  of  a  part  of  her  land ;  that  he  man- 
aged her  real  property,  which  facts  were  generally  known  ;. 
and  that  the  defendant,  being  aware  thereof,  relied  upon 
Marks'  apparent  authority  in  renting  the  premises  from 
him.  Based  on  this  testimony  the  defendant's  counsel 
requested  the  court  to  give  the  following  charge: 


606  Marks  v,  Hbrbkn.  [47  Or. 

"You  are  instructed,  gentlemen  of  the  jury,  that,  if  the 
plaintiff  knowingly  and  voluntarily  permitted  Marks  to 
hold  himself  out  to  the  world  as  her  agent  in  the  transac- 
tion of  business  respecting  her  land,  she  would  be  held  to 
adopt  his  aces  and  be  bound  by  his  contracts  with  any 
person  relying  upon  the  faith  of  such  agency ;  and  it  is 
also  a  rule  of  law  that  where  a  person  is  shown  to  have 
been  the  agent  of  another  in  the  transaction  of  particular 
business,  and  continues  to  act  as  such  agent  within  the 
scope  of  his  former  authority,  it  will  be  presumed  that  his 
authority  continues  and  his  action  will  bind  his  principal, 
unless  the  person  with  whom  he  deals  has  notice  that  his 
agency  has  ceased,  or  until  after  a  lapse  of  such  a  length 
of  time  as  ought  to  put  a  reasonably  prudent  man  on  in- 
quiry as  to  the  continuance  of  such  agency.  So,  in  this 
case,  if  you  should  find  from  the  evidence  that  Marks  was 
transacting  the  business  of  the  plaintiff  connected  with 
this  real  property,  such  as  collecting  rents,  selling  hops, 
and  negotiating  sales  of  the  property,  then  the  defendant 
would  have  a  right  to  rely  upon  his  authority  if  he  knew 
of  it,  and  the  plaintiff  would  be  bound  by  his  act  of  leas- 
ing the  property  to  the  defendant,  unless  his  authority 
had  ceased,  and  that  fact  was  brought  home  to  the  defend- 
ant prior  to  leasing,  and  your  verdict  must  be  for  the  de- 
fendant.'* 

The  court  refused  to  give  this  instruction,  and  the  de- 
fendant was  allowed  an  exception. 
In  the  general  charge  the. court  said  : 

"A  party  may  be  held  to  create  an  agency  in  two  ways 
that  will  bind  them  :  One  actually  authorizing  an  agent 
to  do  an  act;  or  Mr.  Marks  could  be  an  agent  of  his  wife 
by  her  actually  authorizing  him  to  transact  this  particular 
business,  or  generally  to  transact  business  of  this  character 
in  relation  to  the  farm,  managing  and  renting,  and  col- 
lecting rents,  and  selling  property  on  the  farm,  and  other 
things  of  that  sort.  If  she  gave  him  general  authority  to 
do  that,  and  his  authority  was  generally  known  and  rec- 
ognized in  respect  to  similar  matters,  then  it  would  be  pre- 
sumed to  continue  until  parties  that  knew  of  that  authority 
had  had  actual  notice  that  it  had  ceased.    Or,  if  she  allowed 


Dec.  1905.]  Marks  v,  Herren.  607 

him  to  hold  himself  out  as  the  agent  and  recognize  his 
authority  to  such  an  extent  as  would  lead  a  reasonable, 
prudent,  and  careful  man  to  believe  that  he  actually  was 
an  agent,  if  she  allowed  him  to  go  ahead  and  transact 
business  of  a  similar  character  habitually  in  such  a  way 
as  would  lead  a  reasonable  and  prudent  man  to  believe 
that  he  was  her  agent  in  this  matter,  and  he  actually  did 
believe  that  and  was  misled  by  her  previous  habitual 
course  of  conduct,  then  she  would  be  bound  by  his  act  the 
same  as  if  she  had  actually  authorized  him.  But,  in  order 
to  be  bound,  in  that  way,  the  conduct — by  holding  a  per- 
son out  as  agent — he  must  have  habitually  acted  in  mat- 
ters of  a  similar  character.'' 

The  substance  of  that  part  of  the  charge  requested,  pre- 
ceding the  application  to  the  case  at  bar,  is  taken  from 
Sackett's  Instructions  to  Juries  (2  ed.),  p.  65,  §  16,  and 
page  58,  §  4.  An  examination  of  the  excerpt  taken  from 
the  general  charge  will  show  that  the  essential  parts  of 
the  special  instructions  requested  were  given  by  the  court. 
The  rule  is  well  settled  in  this  State  that  when  the  trial 
court  is  requested  to  state  to  the  jury  the  rules  of  law  ap- 
plicable to  the  various  issue  involved,  which  requests  are 
substantially  embodied  in  the  general  charge,  no  error  is 
committed  in  refusing  to  give  the  special  instructions  re- 
quested :  Cordon  v.  Oregon  Short  Line  R.  Co.,  23  Or.  499 
(32  Pac.  397);  Morrison  v.  McAtee,  23  Or.  530  (32  Pac.  400); 
La  Grande  Nat,  Bank  w.Blum,  27  Or.  215  (41  Pac.  659). 
The  court  having  given  the  substance  of  the  instruction 
requested,  no  error  was  committed  in  refusing  to  charge 
the  jury  as  desired  by  defendant's  counsel. 

2.  The  court  in  several  instances  in  its  general  charge 
used  the  words  **habitual"  and  **habitually,"  as  hereinbe- 
fore quoted,  to  qualify  the  alleged  conduct  of  plaintiff's 
husband  in  dealing  with  her  land,  to  the  frequent  use  of 
which  words  defendant's  counsel  were  allowed  exceptions. 
It  was  argued  that  the  acts  of  a  person  on  behalf  of  another, 


608  Marks  v.  Hbrrbn.  [47  Or. 

when  assented  to  by  the  latter,  warrants  the  implication 
of  an  agency,  without  such  acts  being  so  often  repeated  as 
to  form  a  habit,  and  that  the  court's  use  of  the  words  com- 
plained of  was  erroneous.  In  State  ez  rel.  v.  Savage,  89  Ala. 
1  (7  South.  7,  183,  7  L.  R.  A.  426),  which  was  a  proceed- 
ing  to  impeach  a  probate  judge  for  alleged  habitual  drunk- 
enness, Mr.  Chief  Justice  Stone,  speaking  for  the  court 
upon  the  merits  of  the  case,  said  :  "Habit  is  customary 
state  or  disposition,  acquired  by  frequent  repetition;  apti- 
tude by  doing  frequently  the  same  thing;  usage;  estab- 
lished manner.  When  a  person  has  repeatedly  acted  in  a 
particular  way,  at  intervals,  whether  regular  or  irregular,, 
for  such  length  of  time  as  that  we  can  predicate  with 
reasonable  assurance  that  he  will  continue  so  to  act,  we 
may  affirm  that  this  is  his  habit."  In  Lynch  v.  Bates,  139 
Ind.  206  (38  N.  E.  806),  in  construing  a  statute  which  for- 
bade the  granting  of  a  liquor  license  to  a  person  in  the  habit 
of  becoming  intoxicated,  the  court  say:  "The  word  habit 
has  a  clear  and  well-understood  meaning,  being  nearly 
the  same  as  custom,  and  cannot  be  applied  to  a  single  act.'' 
In  1  American  &  English  Encyclopedia  of  Law  (2  ed,)^ 
p.  961,  the  editors  of  that  valuable  work,  discussing  the 
authority  of  one  person  to  act  for  another,  say :  "While 
agency  may  be  implied  from  a  single  transaction,  it  is 
more  readily  inferable  from  a  course  of  dealing." 

If  the  definition  of  the  word  "habit"  as  given  by  the 
courts  in  construing  statutes  relating  to  the  excessive  in- 
dulgence  of  intoxicating  liquors  is  to  prevail  in  the  case 
at  bar,  it  would  necessarily  follow  that  an  agency  could 
not  be  implied  from  a  single  transaction.  The  words  used 
by  the  court  in  its  general  charge,  to  which  exceptions 
were  taken,  were  evidently  intended  as  synonyms  for  the 
words  custom  or  usage,  and  were  not  designed  to  be  ex- 
pressive of  an  appetite  which  by  inheritance  is  or  by  ac- 
quisition had  become  almost  uncontrollable.    Mr.  Tiffany 


Dec.  1905.]  Marks  v.  Herren.  609 

in  his  work  on  Agency  (section  9),  in  giving  illustrations 
of  an  agency  arising  from  an  estoppel,  says :  "If  a  man 
allows  his  servant  habitually  to  buy  from  a  tradesman  on 
credit,  his  conduct  is  an  implied  representation  of  author- 
ity to  pledge  his  credit  in  similar  cases.  »  »  Or,  if  a  mer- 
chant is  aware  that  his  cashier  is  in  the  habit  of  indorsing 
and  collecting  checks  without  authority  in  dealing  with 
the  bank,  and  does  not  notify  the  bank  that  the  cashier  is 
acting  without  authority,  he  will  not  be  allowed  to  deny 
the  authority."  In  St.  Louis  Nat.  Stockyards  v.  Godfreyy 
198  111.  288  (65  N.  E.  90),  which  was  an  action  by  a  loco- 
motive engineer  to  recover  damages  for  a  personal  injury 
sustained  while  switching  cars,  it  was  held  that  the  follow- 
ing instruction  stated  the  rule  correctly,  to  wit :  **The  jury 
are  instructed  that  if  they  believe  from  the  testimony,  the 
rule,  or  notice  of  the  defendant  read  in  evidence,  relating 
to  the  use  of  tracks  by  crews  of  the  plaintiff's  company  in 
entering  the  defendant's  yard  from  the  Terminal  Railroad 
Association  yard,  was  habitually  violated  with  the  knowl- 
edge and  acquiescence  of  the  defendant,  or  was  not  en- 
forced as  to  the  switching  crew  with  which  the  plaintiff 
worked,  then  the  jury  should  disregard  such  notice  or  rule 
in  considering  the  whole  case."  In  that  case,  as  also  in 
the  illustrations  given  by  Tiffany,  to  which  attention  has 
been  called,  the  word  ^'habitually"  was  evidently  designed 
as  a  synonym  for  usage  or  a  course  of  dealing. 

Whether  or  not  an  agency  can  be  implied  from  a  single 
transaction  so  as  to  give  it  the  designation  of  a  usage  is 
not  necessary  to  a  decision  herein,  for  the  bill  of  excep- 
tions discloses  that  testimony  was  introduced  by  the  de- 
fendant tending  to  show  that  plaintiff's  husband  had  acted 
for  his  wife  in  more  than  one  instance  relating  to  her  real 
property.  The  habit  or  usage  to  which  the  court  refers 
evidently  meant  that  if  the  plaintiff  ratified  all  contracts 

47  Or. 89 


610  Huffman  v,  Huffman.  [47  Or. 

assumed  to  have  been  made  with  third  persons  on  her 
behalf  by  her  husband,  the  agency  of  the  latter  might  be 
implied  from  such  course  of  dealing,  without  regard  to 
how  many  times  his  acts  had  been  affirmed  by  her;  but, 
if  she  at  any  time  had  repudiated  agreements  undertaken 
with  third  persons  by  her  husband  on  her  behalf,  such 
disavowal  would  break  the  continuity  of  the  course  of  deal- 
ing, and  repel  the  implication  of  an  agency  arising  from 
her  husband  holding  himself  out  as  her  agent.  Believing 
from  an  examination  of  the  entire  charge  that  the  mean- 
ing we  have  ascribed  to  the  words  in  question  was  so  in- 
tended by  the  court  and  so  understood  by  the  jury,  no 
error  was  committed  in  using  them  in  the  general  charge. 
It  follows  from  these  considerations  that  the  judgment 
should  be  affirmed,  and  it  is  so  ordered.        Affirmed. 


Decided  21  August,  1906. 

HUFFMAN  V,  HUFFMAN. 

86  Pac.  583. 

Points  Available  on  Collateral  Attack. 

1.  In  a  collateral  attack  on  a  Judgment  or  decree  only  the  existence  of  Jarisdle- 
tion  in  the  trial  court  can  be  considered. 

Orioin  of  Rioht  to  Award  Alimony. 

2.  The  Jurisdiction  of  equity  courts  in  Oregon  to  award  alimony  must  be 
found  In  the  statutes,  the  court  not  having  any  such  JarisdioUon  as  an  inci- 
dent of  its  control  over  divorces. 

Extent  of  Right  to  Grant  Alimony. 

3.  Under  Section  518,  B.  i&  C.  Comp.,  equity  courts  may  award  alimony  to 
either  spouse  upon  the  dissolution  of  the  marriage  state,  which  Jurisdiction  is 
broader  than  that  of  the  common  law  courts  of  England. 

Divorce— Allowance  for  Support  of  Wife. 

4.  Under  Section  611,  B.  A  C.  Com  p.,  providing  that  upon  the  dissolution  of 
a  marriage  the  successful  party  hhall  be  entitled  to  a  specified  undivided  portion 
of  all  the  real  estate  owned  by  the  other  party,  and  Section  613,  authorizing  the 
granting  to  the  innocent  party  of  appropriate  alimony,  a  court  has  not  power, 
upon  granting  a  divorce  to  a  wife,  to  award  her,  In  lieu  of  alimony,  the  possession 
of  land  on  which  the  husband  was  maintaining  a  residence  with  the  intention  of 
obtaining  title  thereto  from  the  government.  The  statute  here  authorizes  the 
allowance  of  money  only,  and  the  power  of  the  court  is  measured  by  the  terms 
of  the  statute. 


Aug.  1906.]  Huffman  v.  Huffman.  611 

PowBB  TO  Vacate  Judoxent  After  close  of  Term. 
5.  Supertor  courts  possess  power  at  all  times,  regardless  of  terms,  to  vacate 
void  Judgments  and  decrees,  and  they  should  do  so  whenever  attention  is  called 

to  such  orders:  Deering  v.  Qaivey^  26  Or,  556,  distinguished. 

* 

From  Harney :  George  E.  Davis,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  an  application  to  vacate  a  part  of  a  decree.  The 
plaintiff,  Wm.  D.  Huffman,  commenced  a  suit  in  the 
circuit  court  for  Harney  County  against  the  defendant, 
Fannie  E.  Huffman,  for  a  dissolution  of  the  marriage  con- 
tract then  existing  between  them  and  for  the  custody  of 
their  three  sons.  The  defendant  answered  the  complaint, 
•denying  the  charge  imputed  to  her,  and  alleged  facts  as 
grounds  for  a  divorce  in  her  favor,  and  as  incident  thereto 
sought  to  obtain  the  custody  of  such  sons  and  of  two 
daughters,  minor  children  of  the  union,  and  asked  that 
the  plaintiff  be  restrained  from  disposing  of  any  of  his 
-estate.  An  injunction  as  prayed  for  was  issued  and  served 
on  the  plaintiff,  who  in  violation  thereof  pretended  to 
transfer  to  his  mother,  Mrs.  N.  A.  Ridenour,  the  improve- 
ments on  and  possession  of  certain  public  land  in  that 
county,  which  interests  she  feigned  to  assign  to  E.  St. 
Clair.  The  defendant  thereafter  filed  a  supplemental  cross- 
complaint,  making  Mrs.  Ridenour  and  St.  Clair  parties, 
alleging  that  for  the  purpose  of  defrauding  her,  they  had 
procured  such  assignments  without  consideration,  and 
prayed  that  the  simulated  transfers  might  be  vacated  and 
the  possession  of  the  land  given  to  her  as  a  home  where 
she  could  care  for  her  children.  St.  Clair  alone  answered, 
denying  th^  material  allegations  of  the  supplemental  plead- 
ing, and  averring  that  he  secured  possession  of  the  land  in 
good  faith,  for  a  valuable  consideration,  and  without  knowl- 
edge of  any  fraud  connected  with  the  transfer.  The  plain- 
tiff did  not  appear  and  was  not  represented  by  counsel  at 
the  trial,  and  from  the  testimony  taken  thereat  the  court 


612  Huffman  v.  Huffman.  [47  Or. 

found  that  the  defendant  was  entitled  to  a  divorce,  to  the- 
custody  of  the  children,  and  that  the  pretended  transfers 
were  fraudulent  and  should  be  vacated.  It  was  further 
found  as  alleged  in  the  supplemental  cross-complaint  that 
the  improvements  referred  to  were  purchased  by  the  plain- 
tiff with  money  that  was  earned  by  him  and  the  defend- 
ant. Based  on  such  findings  and  in  accordance  therewith^ 
a  decree  was  passed  November  5,  1901,  setting  aside  the 
land  with  the  improvements  to  the  defendant  for  her  main- 
tenance and  for  the  support  of  her  children.  No  appeal 
was  taken  from  that  decree  and  the  time  for  reviewing  it 
has  expired.  The  plaintiff,  however,  on  July  20,  1905,. 
moved  to  vacate  that  part  of  the  decree  that  relates  to  a 
disposition  of  the  public  land,  on  the  ground  that  it  was 
made  without  jurisdiction,  but  the  motion  was  denied,  and 
he  appealed.  Reversed. 

For  appellant  there  was  a  brief  over  the  names  of  King- 
&  Brooke  and  Biggs  &  BiggSy  with  an  oral  argument  by 
Mr,  William  Htnry  Brooke. 

I.  Where  the  court  has  no  jurisdiction  to  make  an  order^ 
or  the  order  or  decree  entered  is  void,  the  proper  pro- 
cedure is  to  move  the  court  to  vacate  and  set  aside  the 
order  or  decree  and  appeal  from  the  ruling  thereon  :  Hoover 
V.  Hoover,  39  Or.  456  (65  Pac.  796);  Black,  Judgments,. 
§  303;  2  Ency.  PI.  &  Pr.  95,  96;  Livermore  v.  Campbell^ 
52  Cal.  402 ;  Smith  v.  Oilson,  14  Wis.  507 ;  Johnson  v. 
Curtis,  51  Wis.  595;  Hoh  v.  Hoh,  84  Wis.  378;  Piper  v. 
Johnson,  12  Minn.  60;  Adlinger  v.  Pugh,  57  Hun,  181. 

II.  The  court  possesses  an  inherent  power  to  vacate 
entries  in  its  record  of  judgments,  decrees,  or  orders,  when 
void,  or  rendered  without  jurisdiction,  either  during  the 
term  the  entry  was  made,  or  at  any  subsequent  term  :  Ladd 
V.  Mason,  10  Or.  308  ;  Hoover  v.  Hoover,  39  Or.  456  (65  Pac. 
796);  Black,  Judgments,  §  308. 


Aug.  1906.]  Huffman  v.  Huffman.  613 

III.  The  court  could  not  award  anything  but  money  as 
alimony  (B.  &  C.  Comp.  §  513),  and,  if  it  could,  its  power 
would  be  limited  to  property  owned  by  the  party  at  fault 
At  the  date  of  the  decree;  B.  &  C.  Comp.  §  511 ;  Rees  v. 
Bees,  7  Or.  48;    Weber  v.  Weber,  16  Or.  163  (17  Pac.866). 

IV.  In  any  event,  the  ownership  of  this  land  must  fin- 
ally be  determined  by  the  authorities  of  the  United  States, 
«o  there  is  no  propriety  in  any  action  regarding  it  by  the 
State  courts :  Hafemann  v.  Gross,  199  U.  S.  342  (26  Sup. 
Ct.  80);  Hershberger  v.  Blewett,  55  Fed.  170;  Huffman  v. 
Smyth,  47  Or.  573  (84  Pac.  80). 

For  respondent  there  was  a  brief  by  Mr.  Williara  Miller 
to  this  effect. 

1.  This  is  an  equitable  proceeding  and  plaintiff's  past 
conduct  in  this  divorce  proceeding  should  exclude  him 
from  any  hearing  now.  He  disposed  of  this  land  and  the 
improvements  to  defraud  his  wife,  as  the  court  found,  and 
failed  to  comply  with  the  order  to  pay  suit  money. 

2.  The  court  below  had  full  jurisdiction  of  the  parties,  the 
suit  and  the  property,  and  as  no  appeal  was  taken  from  the 
-decree  it  is  final:  Hoover  v.  Hoover,  39  Or.  459(65  Pac.  796.) 

3.  Huffman  having  voluntarily  sold  all  interest  in  the 
premises,  he  thereby  abandoned  his  settlement  and  barred* 
himself  from  ever  claiming  aily  interest  therein:  Dashney 
V.  Paggoner,  27  Land  Dec.  Dep.  Int.  319. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

1.  It  is  contended  by  the  defendant's  counsel  that,  as 
the  plaintiff  voluntarily  transferred  his  right  of  possession 
to  the  public  land,  he  thereby  relinquished  all  claim  to  the 
premises;  and,  this  being  so,  no  error  was  committed  in 
denying  the  motion.  The  court,  in  granting  the  divorce, 
vacated  as  fraudulent  and  void  the  pretended  assignments 
on  the  assumption  that  they  were  made  in  secret  trust  for 
the  plaintiff's  use.    To  allow  him  now  to  assert  that  the 


614  Huffman  v.  Huffman.  [47  Or. 

transfers  were  invalid  might  seem  like  permitting  him  to 
take  advantage  of  his  own  wrong;  but,  however  this  may 
be,  as  the  determination  of  the  ultimate  right  to  the  land 
necessarily  devolves  upon  the  officers  of  the  land  depart- 
ment of  the  United  States,  it  is  proper  to  leave  to  them  the 
decision  of  the  question  whether  or  not  the  plaintiff  can 
hereafter  come  into  their  tribunals  with  clean  hands.  Be- 
sides, the  consideration  by  this  court  of  the  legal  principle 
suggested  would  be  equivalent  to  reviewing  the  merits  of 
the  original  decree,  and,  as  no  appeal  was  taken  therefrom,, 
the  only  question  that  can' arise  at  this  time  is  an  alleged 
want  of  jurisdiction. 

2.  Examining  the  principal  inquiry,  the  appeal  chal- 
lenges  the  right  of  the  court  to  provide  for  the  maintenance 
of  the  defendant  by  setting  apart  to  her  the  possession 
of  the  real  property  specified.  To  understand  the  principle 
whereby  alimony  was  given  in  divorce  proceedings,  a  cur- 
sory examination  of  the  rules  originally  applicable  thereto 
in  the  country  from  which  we  derive  the  principles  of 
common  law  may  not  be  deemed  inappropriate.  In  Eng- 
land, prior  to  1858,  no  absolute  judicial  divorces  were 
granted;  but  the  ecclesiastical  courts,  assuming  jurisdic- 
tion of  the  marital  relation,  permitted  legal  separations, 
which  were  known  as  '*a  mensa  et  thoro":  Stewart,  Mar. 
&  Div.  §  200.  As  an  incident  of  such  divorces  and  based 
on  the  husband's  duty  to  support  the  wife,  the  church 
courts  granted  her,  when  she  was  not  in  fault,  alimony,, 
which  consisted  of  an  allowance  that  was  measured  by  the 
social  standing  of  the  parties,  proportioned  by  the  wife*& 
necessities  and  to  the  husband's  financial  ability,  usually 
amounting  to  one-half  of  their  joint  income;  but,  if  there 
were  children  of  the  union,  the  allowance  was  generally 
limited  to  one-third  of  such  income :  Stewart,  Mar.  &  Div. 
§  362.  Tho  ecclesiastical  courts  having  been  abolished 
during  the  Commonwealth,  the  authority  to  award  alimony 


Aug.  1906.]  Huffman  v.  Huffman.  615 

was  expressly  conferred  upon  the  equity  judges,  whose  de- 
crees in  compliance  therewith  were  ratified  after  the  Res- 
toration by  an  act  of  Parliament:  1  Bishop,  Mar.  &  Div. 
§  1394.  The  law  of  England  relating  to  marriage  and  di- 
vorce was  brought  by  the  colonists  to  this  country,  where 
the  ecclesiastical  courts  were  never  recognized  as  possess- 
ing authority  to  allow  alimony.  As  these  immigrants  did 
not  bring  their  courts  with  them,  the  law  adverted  to,  and 
which  is  here  known  as  the  unwritten  or  common  law  of 
the  several  States,  remained  in  abeyance  until  called  into 
activity  by  the  creation  of  tribunals  on  which  such  juris- 
diction was  directly  or  by  implication  conferred  :  Bishop, 
Mar.  &  Div.  §§  116, 121.  A  few  courts  of  last  resort  in  the 
United  States  have  maintained  that  a  grant  of  power  to 
sever  the  marital  relation  carries  with  it  by  necessary  in- 
tendment  authority  to  allow  permanent  alimony  in  the 
absence  of  any  enactment  to  that  effect:  Stewart,  Mar.  & 
Div.  §  363.  The  great  weight  of  judicial  utterances,  how- 
ever, is  to  the  effect  that  all  authority  to  award  alimony  on 
decreeing  a  dissolution  of  the  marriage  must  be  found 
in  the  statute  expressly  conferring  the  right,  which  legis- 
lation is  in  general  declaratory  of  the  ecclesiastical  law : 
2  Bishop,  Mar.  &  Div.  §  1039;  Stewart,  Mar.  &  Div.  §  364; 
Weber  v.  Weber,  16  Or.  163  (17  Pac.  860);  Houston  v.  Tim- 
merman,  17  Or.  499  (21  Pac.  1037,  4  L.  R.  A.  716,  11  Am. 
St.  Rep.  848.) 

3.  Our  statute  relating  to  the  land  owned  by  married 
persons  which  is  required  to  be  divided  in  certain  in- 
stances when  they  are  divorced,  and  providing  for  the 
maintenance  of  the  innocent  party,  is  in  effect  as  follows  : 
Whenever  a  marriage  shall  be  declared  void  or  dissolved, 
the  party  at  whose  prayer  the  decree  is  given  shall  be  en- 
titled to  the  undivided  one-third  part  in  his  or  her  indi- 
vidual right  in  fee  of  the  whole  of  the  real  estate  owned 
by  the  other  at  the  time  of  the  decree :    B.  &  C.  Comp.  § 


616  Huffman  v.  Huffman.  [47  Or. 

511.  In  addition  to  such  share  of  the  real  property,  the 
court  is  empowered,  whenever  a  marriage  is  declared  void 
or  dissolved,  to  provide  for  the  future  care  and  education 
of  the  minor  children  of  the  marriage,  giving  their  cus- 
tody in  preference  to  the  party  not  in  fault,  and  for  the 
recovery  from  the  adverse  party,  when  not  allowed  the 
custody  of  the  children,  such  an  amount  in  money  as  may 
be  just  and  proper  to  contribute  for  such  purposes,  and 
also  for  the  further  recovery  of  such  an  amount  of  money 
as  may  be  just  and  proper  for  the  party  in  fault  to  bear 
toward  the  maintenance  of  the  other  party  :  B.  &  C.  Corap. 
§  513.  Under  the  ecclesiastical  law  the  wife  only  was  en- 
titled  to  alimony,  and  as  a  condition  precedent  thereto  a 
valid  marriage  of  the  parties  was  indispensable :  Stewart, 
Mar.  &  Div.  §  362.  A  comparison  of  that  law  with  our 
enactment  on  the  subject  discloses  that  in  this  State  the 
husband  as  well  as  the  wife  may  secure  maintenance,  and 
this,  too,  when  the  marriage  is  declared  void,  so  that  our 
statute  is  an  enlargement  of  the  ancient  law :  Henderson  v. 
Henderson,  37  Or.  141  (60  Pac.  597, 61  Pac.  136, 48  L.  R.  A. 
766,  82  Am.  St.  Rep.  741). 

4.  In  construing  the  first  provision  of  the  statute  re- 
ferred to,  it  has  been  held  that  in  granting  a  divorce  a 
court  cannot  set  off  to  the  innocent  party  more  than  an  un- 
divided one-third  of  the  real  property  (Rees  v.  Rees,  7  Or. 
48),  nor  apportion  any  part  of  such  land  in  severalty  ;  the 
decree  making  the  parties  tenants  in  common  of  the  prem- 
ises :  Benfield  v.  Benfield,  44  Or.  94  (74  Pac.  495) .  Where 
the  husband  conveyed  real  property  to  a  third  person  for 
his  own  use,  to  prevent  the  marital  rights  of  his  wife  from 
attaching  thereto  in  case  she  instituted  a  suit  for  divorce, 
it  was  ruled  that  the  equitable  estate  of  the  husband  in 
the  premises  made  him  the  *' owner"  of  the  land,  within 
the  meaning  of  that  term  as  used  in  the  statute,  and  when 
the  trustee  was  made  a  party  to  such  suit  the  court  pos- 


Aug.  1906.]  Huffman  v.  Huffman.  617 

sessed  power  to  divest  him  of  the  legal  title  and  to  invest 
the  wife  therewith :  Wetmore  v.  Wetmore,  5  Or.  469.  In 
the  case  at  bar  the  plaintiff  was  not  the  *' owner"  of  the 
public  land,  the  possession  of  which  was  given  to  the  de- 
fendant, nor  did  he  have  such  an  equitable  estate  therein 
as  could  be  reached  or  affected  in  any  manner  by  the 
decree  rendered.  It  will  be  remembered  that  the  court, 
-adopting  the  averments  of  the  supplemental  cross-com- 
plaint, found  that  the  improvements  on  the  public  land 
were  purchased  by  funds  jointly  earned  by  the  plaintiff 
and  the  defendant.  No  finding  was  made  as  to  what  part 
of  the  sum  which  was  earned  by  the  defendant  was  so  em- 
ployed, nor  that  she  was  entitled  to  the  land  or  any  part 
thereof  by  reason  of  the  investment  of  her  money  therein. 
The  rule  is  well  settled  that  as  an  incident  to  granting  a 
divorce  a  court  is  empowered  to  restore  to  an  innocent 
wife  the  entire  property  brought  to  the  husband  by  reason 
of  the  marriage,  and  it  is  also  held  in  some  States  that  in 
dissolving  the  bonds  of  matrimony  a  partition  of  the  ac- 
cumulations may  be  made  :  14  Cyc.  781 ;  Stewart,  Mar.  & 
Div.  §  375;  Brandt  v.  Brandt,  40  Or.  477  (67  Pac.  508). 
This  legal  principle,  however,  cannot  have  any  applica- 
tion to  the  case  at  bar,  for  the  decree  herein  is  based  solely 
on  the  ground  of  awarding  to  the  defendant  maintenance 
for  herself  and  support  for  her  children  under  Section  513, 
B.  &  C.  Comp. 

Maintenance  and  permanent  alimony  are  synonymous 
terms,  and  mean  an  allowance  in  money  to  V)e  recovered 
on  decree  of  a  divorce  from  the  party  in  fault  for  the  sup- 
port of  the  innocent  party :  B.  &  C.  Comp.  §  513  ;  Calame 
V.  Calame,  25  N.  J.  Eq.  548.  A  text-writer,  in  discussing 
this  subject,  says :  "Unless  so  provided  by  statute,  no  fixed 
portion  of  the  estate  of  either  party  is  to  be  allotted  to  the 
other  upon  a  divorce":  14  Cyc.  792.  Thus,  under  a  stat- 
ute of  New  York  which  authorized  provision  to  be  made 


618  Huffman  v.  Huffman.  [47  Or. 

for  the  support  of  an  innocent  party,  and  for  the  educa- 
tion of  the  children  of  the  marriage,  on  decreeing  a  divorce^ 
it  was  held  that  no  power  was  conferred  upon  the  court  ta 
set  apart  to  the  wife  and  daughter  any  specific  household 
goods  of  the  husband  for  the  purposes  specified,  and  that 
the  decree  should  have  compelled  him  to  support  them  by 
supplying  their  daily  needs :  Doe  v.  Doe,  52  Hun,  405  (5 
N.  Y.  Supp.  514).  In  Crain  v.  Cavana,  62  Barb.  109,  a  di- 
vorce  a  mensa  et  thoro  having  been  given,  the  wife  was 
awarded  $450,  which  sum  the  decree  stipulated  should  be 
"in  lieu  and  satisfaction  of  all  alimony,  dower,  right  of 
dower,  and  all  other  claims  which  she  (the  complainant) 
may  or  can  have,  to  the  property  of  the  defendant."  The 
husband  having  died  seised  of  certain  lands,  a  suit  was  in- 
stituted to  partition  the  widow's  dower,  and  it  was  held 
that  the  provision  of  the  decree  as  to  the  condition  of  pay- 
ment was  void,  in  consequence  of  which  the  right  of  dower 
was  not  barred .  In  referring  to  the  conclusion  thus  reached ,. 
Mr.  Vanfleet,  in  his  work  on  Collateral  Attack  (section 
733) ,  makes  the  following  observation  :  "This  case  seem* 
to  me  to  be  wrong.  The  court  had  complete  jurisdiction, 
with  authority  to  determine  all  the  rights  of  the  parties^ 
and  a  grant  of  money  instead  of  specific  property  was 
merely  an  error  of  law  which  did  not  destroy  the  juris- 
diction." It  is  believed,  however,  that  the  better  rule  is- 
thait,  as  the  right  to  maintenance  is  conferred  by  statute, 
which  in  this  State  authorizes  the  payment  of  a  sum  of 
money  only  to  the  innocent  party  on  granting  a  divorce^ 
the  court  was  without  power  to  award  to  the  defendant  the 
possession  of  public  land,  and  hence  that  part  of  the  de- 
cree is  void  and  vulnerable  to  collateral  attack:  14  Cyc. 
794. 

5.  The  remaining  question  is  whether  or  not  the  court 
erred  in  refusing  to  vacate  the  part  of  the  decree  so  as- 
sailed.   Though  jurisdiction  of  valid  judgments  and  de- 


Feb.  1906.]     Woolley  v.  Plaindealer  Pub.  Co.  619 

crees  ceases  with  the  close  of  the  term  at  which  they  are 
given,  unless  authority  over  them  is  retained  by  motion 
or  other  appropriate  proceeding  {Deering  v.  Quivey,  26  Or. 
556,  38  Pac.  710),  superior  courts  possess  ample  power  at 
all  times  to  vacate  void  judgments,  decrees  and  orders, 
and  it  is  incumbent  upon  them  to  purge  their  records  of 
the  entries  of  such  nullities  when  their  attention  is  called 
thereto :  Black,  Judgments,  §  307  ;  17  Am.  &  Eng.  Ency. 
Law  (2  ed.),  825;  Evans  v.  Christian,  4  Or.  375;  State  ex 
rel.  v.  McKinnon,  8  Or.  488 ;  Ladd  v.  Mason,  10  Or.  308 ; 
Slate's  Estate,  40  Or.  349  (68  Pac.  399);  White  v.  Ladd,  41 
Or.  324  (68  Pac.  739,  93  Am.  St.  Rep.  732);  Conant's  Es- 
tate, 43  Or.  530  (73  Pac.  1018). 

An  error  having  been  committed  as  indicated,  the  action 
of  the  court  in  denying  the  motion  is  reversed,  and  the 
part  of  the  decree  complained  of  vacated.      Reversed. 


Areued  80  January,  decided  27  February,  1006. 
WOOLIiET  V.  PI«AINDEALSB  PUBLISHINQ  00. 

84  Pac.  478. 

LiBKL— Nature  of  Publication  Imputing  a  Crime. 

1.  Printed  statements  maliciously  Imputing  to  another  the  commission  of  a 
crime  are  libelous  per  se. 

LiBEii— Construction  of  Publication.         i 

2.  A  publication  stating  that  plalntifT  let  contracts  for  school  buildings,  sup- 
plied the  hardware,  paints,  etc.,  compelling  the  contractor  to  submit  to  high 
prices  for  inferior  goods,  or  to  have  trouble  In  having  his  work  accepted,  and  that 
at  plaintilTs  dictation  an  expensive  and  out  of  date  beating  apparatus  was  ln> 
stalled,  and  that  he  sold  an  undesirable  engine  at  a  large  profit  to  the  district^ 
plaintlffbelng  a  director  of  such  school  district,  is  libelous  perse  in  Oregon  where 
thestatute  forbldsany  school  dlrectorfrom  having  any  pecuniary  interest  directly 
or  indirectly  in  the  construction  or  furnishing  of  schoolhouses  in  his  district,, 
under  a  prescribed  penalty. 

Pleading— Waiving  Insufficiency  of  Complaint. 

8.  By  the  express  provision  of  Section  72,  B.  A  C.  Comp.,  the  objection  that 
the  facts  stated  in  a  complaint  do  not  constitute  a  cause  of  action  Is  not  waived 
by  failing  to  demur  or  answer. 

Libel— Allegations  Showing  Application  of  IjIbelous  Matter. 
4.  In  an  action  for  libel,  it  being  unnecessary  under  Section  91,  B.  <fr  C.  Comp., 
to  plead  any  matter  showing  tbe  application  to  plaintiff  of  the  defamatory  mat- 


€20  WooLLEY  V.  Plaindealer  Pub.  Co.        [47  Or. 

ter  Bet  forth,  a  complaint  sbowini?  the  publication  by  defendant  of  matter  that  is 
partly  libelous  per  8e  Is  good,  though  the  application  of  other  parts  of  such  maU 
ter  Is  not  apparent  and  is  not  explained  by  Innuendo. 

Instruction  as  to  Libelous  Nature  of  Matter  Published. 
6.  It  Is  the  duty  of  a  trial  Judge  to  charge  the  Jury  whether  a  publication  Is 
per  se  libelous  or  not. 

Forbidden  Purchases  by  School  Directors— Libel— Evidence  ik 
Mitigation  of  Damages. 

6.  Under  Section  3889,  B.  <&  C.  Comp.,  concerning  purchases  of  supplies  for 
school  districts  by  school  directors,  no  sale  of  anything  in  which  a  director  may 
have  a  pecuniary  Interest  should  be  countenanced;  and,  therefore,  in  a  libel  ac- 
tion for  charging  a  school  director  with  a  violation  of  his  duty  by  selling  to  his 
district  articles  used  In  dally  routine,  though  not  properly  for  use  *Mn  the  erec- 
tion, or  for  the  warming,  ventilating,  furnishing  or  repairing"  of  schoolhouses, 
defendant  should  be  permitted  to  show  in  mitigation  of  damages  any  purchases 
in  which  plaintiff  was  pecuniarily  interested  made  by  the  school  board  while  he 
was  a  director. 

From  Douglas :  James  W.  Hamilton,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  an  action  by  F.  W.  Woolley  against  the  Plain- 
dealer  Publishing  Co.,  a  corporation,  and  W.  C.  Conner,  to 
recover  damages  for  the  publication  in  a  newspaper  of  an 
alleged  libel.  The  complaint,  omitting  the  formal  parts 
and  the  name  of  a  party  defendant  as  to  whom  the  cause 
was  dismissed,  is  as  follows: 

"That  during  all  the  times  hereinafter  mentioned,  the 
plaintiff  was,  and  still  is,  a  member  of  the  board  of  directors 
of  school  district  No.  4,  in  Douglas  County,  Oregon.  That 
the  defendant  the  Plaindealer  Publishing  Co.  is  a  corpora- 
tion duly  organized  and  existing  under  and  by  virtue  of 
the  laws  of  the  State  of  Oregon.  That  the  defendant,  W.  C. 
Conner  is  the  editor  ♦  ♦  of  the  said  defendant  corporation, 
the  Plaindealer  Publishing  Co.,  and  as  such  has  charge  of 
the  editing,  publishing  and  printing  of  the  Twice-a-Week 
Roseburg  Plaindealer,  a  newspaper  of  general  circulation 
in  said  school  district  No.  4,  and  in  Douglas  County,  Ore- 
gon, of  which  said  newspaper  the  defendant  corporation 
is  the  proprietor.  That  on  the  2d  day  of  January,  1905, 
the  said  defendants,  at  Koseburg,  Oregon,  published  the 
said  newspaper  and  therein  the  following  words,  all  con- 
cerning the  plaintiff,  to  wit: 


Feb.  1906.]     Woolley  v.  Plaindealer  Pub.  Co.  621 

"  'More  About  the  School  Tax  Levy. 

Editor  Plaindealer:  F.  W.  Woolley,  the  big  **IT,"  the- 
presumptuous  great  "I  AM,"  of  the  school  board,  who  has 
controlled  its  actions  with  the  pompous  air  of  a  Russian 
autocrat,  says  that  the  school  board  does  not  vote  the  tax. 
Three  out  of  four  is  a  majority  which  has  a  lead  pipe  cinch 
on  the  12  mills  forced  on  the  people.  We  felt  sure  when 
this  matter  was  taken  up  that  the  grafter  would  howl,  at 
least  when  attention  was  called  to  wantoned  waste  and  ex- 
travagance. Almost  every  statement  made  by  this  self- 
constituted  mouthpiece  of  the  school  board  is  misleading. 

"  'The  county  school  fund  amounts  to  about  $6  per  capita 
for  each  pupil  while  the  State  fund  amounts  to  nearly  $2 
additional.  On  top  of  this  Woolley  has  forced  through  a 
12  mill  tax.  But  how  has  he  incurred  the  indebtedness 
for  which  this  exorbitant  tax  is  required?  By  installing 
a  fire  trap  in  the  fine  building  we  had  before  he  thus  dis- 
poiled  it;  by  contracting  with  outside  parties  who  would 
stand  in  to  the  exclusion  of  home  workmen  who  were  too 
honest  and  honorable  to  be  worked.  The  contract  price 
for  the  high  school  building  was  $20,000,  yet  he  audited 
and  allowed  $4,000  extra,  20  per  cent  of  the  entire  contract, 
price.  Who  got  this  big  $4,000  graft?  Who  is  this  high 
mogul  who  essays  to  run  the  town  and  dictate  what  meatand 
drink  a  man  shall  take  —  whose  gall  is  only  exceeded  by 
his  great  grafting  propensities.  It  is  Woolley  who  lets  con- 
tracts for  school  buildings,  supplies  the  hardware,  paints^ 
roofing  and  the  poorest  goods  for  the  highest  prices ;  grants 
a  $4,000  extra  bill ;  accepts  or  rejects  the  work  at  pleasure, 
thus  compelling  the  contractor  to  submit  to  high  prices  for 
inferior  wares  or  invite  trouble  in  having  his  work  ac- 
cepted. It  was  at  this  man's  dictation  that  an  expensive, 
out  of  date  hot  air  heating  apparatus  was  installed  in  tho 
high  school  buildiiig.  But  then  he  had  an  opportunity  to 
sell  the  district  an  expensive  gasoline  engine  at  a  big  profit, 
which  costs  more  to  operate  than  would  be  required  to  heat 
the  entire  building  with  a  modern  plant,  but  there  would 
not  have  been  any  rake-off  on  this  kind  of  a  plant  for  the 
high  mogul. 

*'  ^Theschool  board  has  never  published  a  financial  state- 
ment for  the  edification  of  the  public,  which  is  not  per- 


622  WooLLKY  V,  Plaindkaler  Pub.  Co.        [47  Or. 

mitted  to  know  the  enormous  indebtedness  of  the  district. 
He  speaks  of  tax  dodgers  —  from  personal  knowledge  an 
adept  can.  It  is  true  he  may  pay  more  taxes  than  I  do, 
but  what  little  I  have  was  earned  by  honest  toil.  I  had  no 
big  fat  hardware  bill  accruing  from  dependent  contractors, 
or  $4,000  extras  to  purchance  swell  my  bank  account,  or 
help  pay  my  school  taxes. 

**  *He  speaks  of  iEsop's  Fables.  He  has  worn  the  lamb's 
skin  and  strutted  the  street  with  pomp  and  arrogance  pro- 
claiming that  no  married  woman  should  teach  in  the 
schools  as  long  as  he  was  director,  while,  it  is  alleged, 
some  courageous  teacher  might  be  able  to  tell  why.  He 
wraps  himself  in  a  cloak  of  self-righteousness  and  thanks 
the  Lord  that  he  is  not  like  other  men,  and  boasts  of  having 
bested  an  inebriate  fellow  townsman  in  a  fist  fight  on  the 
streets  of  Roseburg.  He  should  sign  his  plea  for  continu- 
ance in  office — yours  for  excessive  hardware  bills,  $4,000 
extras  and  a  few  thousand  pounds  $1.50  whiting  in  the 
place  of  $10  kalsomine.  'Taxpayer.' 

*'That  the  said  publication  was  false  and  defamatory  and 
was  published  by  the  said  defendants  maliciously  and  with 
the  intent  thereby  to  injure  the  good  name  and  reputation 
of  the  plaintiff  and  his  business.  That  by  means  of  said 
false  and  defamatory  publication  plaintiff  was  injured  in 
his  business  and  reputation  to  his  damage  in  the  sum  of 
ten  thousand  ($10,000)  dollars.  Wherefore  plaintiff  de- 
mands judgment  against  the  defendants  for  the  full  sum 
of  ten  thousand  ($10,000)  dollars  and  his  costs  and  dis- 
bursements therein  to  be  taxed." 

The  answer  denies  that  the  article  set  out  in  the  com- 
plaint is  false  or  defamatory  or  published  with  intent  to 
injure  plaintiff's  name,  reputation,  or  business,  or  that  he 
was  damaged  in  any  sum  by  such  pro'mulgation.  For  a 
further  defense  it  is  averred  that  the  matter  so  printed  is 
true,  and,  by  way  of  justification,  it  is  stated  that  during 
the  years  1899  to  1901  plaintiff  was  a  member  of  certain 
firms  engaged  at  Roseburg  in  the  sale  of  hardware,  and  at 
the  same  time  he  was  also  a  director  of  school  district  No. 


Feb.  1906.]     Woolley  v.  Plaindbaler  Pub.  Co.  623 

4  in  Douglas  County,  and  that  .while  in  such  dual  position 
plaintiff  illegally  had  a  pecuniary  interest, in  the  erection 
of  schoolhouses  and  in  the  warming,  ventilating,  furnish- 
ing and  repairing  thereof  in  that  district,  setting  out  gen- 
erally the  sales  of  material,  etc.,  made  by  such  firms  to  that 
school  district.  For  another  defense,  and  in  mitigation  of 
damages,  practically  the  same  facts  are  set  out  in  respect 
to  such  sales.  It  is  also  alleged  that  the  printed  matter 
complained  of  constitutes  the  third  article  of  a  series  pub- 
lished in  newspapers  at  Roseburg,  setting  out  what  purport 
to  be  copies  thereof,  the  first  signed  by  "A  Taxpayer," 
and  the  second  by  plaintiff,  which  latter  communication 
provoked  the  matter  in  question  as  a  reply.  The  allega- 
tions of  new  matter  in  the  answer  were  denied  in  the  reply, 
and,  the  cause  having  been  tried,  judgment  for  the  costs 
and  disbursements  of  the  action  was  rendered  against  the 
plaintiff,  and  he  appeals.  Reversed. 

For  appellant  there  was  a  brief  over  the  name  of  Coshow 
&  Rice,  with  an  oral  argument  by  Mr.  Oliver  Perrg  Coshow, 

For  respondents  there  was  a  brief  over  the  names  of 
F.  W.  Benson,  George  M  Brown,  James  0,  Watson  and  Wil- 
liam Wilshire  Cardwell,  with  an  oral  argument  by  Mr, 
CardwelL 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

It  is  con^tended  by  plaintiff's  counsel  that  the  article  set 
out  in  the  complaint  is  prima  facie  actionable,  and,  this 
being  so,  the  court  erred  in  submitting  to  the  jury  the  ques- 
tion whether  or  not  the  language  was  susceptible  to  such 
construction  and  in  not  charging  that  it  was  libelous  per 
se.  Defendants'  counsel  deny  the  legal  propositions  so 
asserted,  and  maintain  that  the  complaint  fails  to  state 
facts  sufficient  to  constitute  a  cause  of  action,  and  that,  as 
the  judgment  was  in  favor  of  their  clients,  no  alleged  error 
of  the  court  in  the  trial  of  the  cause  can  be  considered. 


624  WooLLEY  V.  Plaindbalbr  Pub.  Co.        [47  Or. 

An  examination  of  the  complaint  will  show  that  no  innu* 
endoes  are  adopted  to  explain  the  meaning  of  doubtful 
words  used  in  the  language  set  out,  and  assuming,  without 
deciding,  that  some  of  the  terms  so  employed  are  of  ob- 
scure import  and  not  in  such  general  use  as  readily  to  be 
comprehended,  the  complaint  will  be  scrutinized  to  dis- 
cover whether  or  not  it  states  facts  sufficient  to  constitute 
a  cause  of  action.  As  the  solution  of  the  principles  main- 
tained by  the  respective  parties  depends,  however,  upon 
the  determination  whether  or  not,  by  eliminating  as  sur- 
plusage the  clauses  containing  the  ambiguous  words,  the 
remaining  language  complained  of  is  actionable,  the  ques- 
tions severally  presented  will  be  treated  in  the  order  stated. 

1.  Printed  words  are  libelous  per  se  when  they  malic- 
iously impute  to  a  person  the  commission  of  a  crime  which 
is  liable  to  punishment  either  at  common  law  or  by  stat- 
ute:  18Am.&Eng.  Enc.Law(2ed.),868.  2  Current  Law, 
714;  Upton  v.  Hume,  24  Or.  420  (33  Pac.  810,  21  L.  R.  A. 
493,  41  Am.  St.  Rep.  863);  McAllister  v,  Detroit  Free  Press 
Co.\  76  Mich.  338  (43  N.  W.  431,  15  Am.  St.  Rep.  318); 
Belo  v.  Fuller,  84  Tex.  450  (19  S.  W.  616,  31  Am.  St.  Rep. 
75);  Childers  v.  San  Jose  Mercury  Co.,  105  Cal.  284  (38  Pac. 
903,  45  Am.  St.  Rep.  40). 

2.  Our  statute,  emphasizing  the  rule  of  public  policy 
that  a  person  cannot  in  the  same  transaction  be  a  vendor 
and  a  purchaser,  contains  the  following  provision  relating 
to  an  officer  of  a  school  district,  to  wit: 

"It  shall  be  illegal  for  any  director,  either  directly  or 
indirectly,  to  have  any  pecuniary  interest  in  the  erection 
of  schoolhouses,  or  for  the  warming,  ventilating,  furnish- 
ing, or  repairing  the  same."  B.  &  C.  Comp.  §  3389,  subd.  19. 

When  this  section  was  adopted,  the  following  provision 
as  a  part  of  the  same  statute  was  enacted,  to  wit: 

'*Any  member  of  any  school  district  board  ♦  ♦  who 
shall  violate  any  of  the  provisions  of  this  act  shall  be 


Feb.  1906.]     Woolley  v.  Plaindealkr  Pub.  Co.  625 

deemed  guilty  of  a  misdemeaaor,  fend  upon  conviction 
shall  be  punished  by  a  fine  not  less  than  twenty-five  dol- 
lars nor  more  than  one  hundred  dollars,  or  by  imprison- 
ment in  the  county  jail  not  less  than  six  months,  or  both 
such  fine  and  imprisonment":  B.  &  C.  Comp.  §  3391. 

■  It  will  be  remembered  that  the  printed  matter  set  out 
in  the  complaint  contains  the  following  clause: 

"It  is  Woolley  who  lets  contracts  for  school  buildings, 
supplies  the  hardware,  paints,  roofing  and  the  poorest 
goods  for  the  highest  prices;  grants  a  $4,000  extra  bill; 
accepts  or  rejects  the  work  at  pleasure,  thus  compelling 
the  contractor  to  submit  to  high  prices  for  inferior  wares 
or  invite  trouble  in  having  his  work  accepted.  It  was  at 
this  man's  dictation  that  an  expensive,  out  of  date  hot  air 
heating  apparatus  was  installed  in  the  high  school  build- 
ing. But  then  he  had  an  opportunity  to  sell  the  district 
an  expensive  gasoline  engine  at  a  big  profit,  which  costs 
more  to  operate  than  would  be  required  to  heat  the  entire 
building  with  a  modern  plant,  but  there  would  not  have 
been  any  rake-off  on  this  kind  of  a  plant  for  the  high 
mogul." 

It  is  not  directly  stated  in  this  excerpt  to  whom  the 
"hardware,  paints,  roofing  and  the  poorest  goods  for  the 
highest  prices"  were  supplied  by  plaintiff,  but  when  it  is 
asserted  that  he  "accepts  or  rejects  the  work  at  pleasure, 
thus  compelling  the  contractor  to  submit  to  high  prices 
for  inferior  wares  or  invite  trouble  in  having  his  work 
accepted,"  it  reasonably  appears,  when  the  printed  article 
is  considered  in  its  entirety,  that  plaintiff  is  charged  with 
having  made  such  sales  to  the  person  who  had  a  contract 
for  the  construction  of  the  high  school  building,  thereby 
imputing  that  Woolley  had  an  indirect  pecuniary  interest 
in  the  erection  of  a  schoolhouse  in  the  City  of  Roseburg 
of  which  he  was  a  school  director.  So,  too,  the  charge  that 
at  plaintiff's  command  a  hot  air  circulating  apparatus  was 
placed  in  the  high  school  building,  whereby  "he  had  an 

47  Ob. 40 


626  WOOLLEY  V,  PX.AINDEALER  PuB.  Co.  [47  Or. 

opportunity  to  sell  the  district  an  expensive  gasoline  en- 
gine at  a  big  profit,  which  costs  more  to  operate  than 
would  be  required  to  heat  the  entire  building  with  a  mod- 
ern plant,"  imputes  to  him  a  direct  pecuniary  interest  in 
the  warming  of  a  schoolhouse  in  that  school  district. 
These  separate  charges  ascribe  to  plaintiff  a  violation  of 
his  duty  as  a  school  director  (B.  &  C.  Corap.  §  3389,  subd. 
19),  a  breach  of  which  is  a  statutory  misdemeanor,  and, 
for  a  conviction  thereof,  a  fine  or  an  imprisonment  or  both 
may  be  imposed :  B.  &  C.  Comp.  §  3391.  It  will  thus  be 
seen  that  the  language  adverted  to  is  libelous  per  se. 

3.  This  brings  us  to  a  consideration  of  the  second  ques- 
tion, which  does  not  appear  to  have  been  raiscfd  at  the  trial, 
but,  as  necessary  averments  are  a  prerequisite  to  securing 
jurisdiction  of  the  subject-matter,  the  challenge  on  that 
ground  is  never  waived  :  B.  &  C.  Comp.  §  72. 

4.  It  is  unnecessary,  in  an  action  for  libel,  to  state  in 
the  complaint  any  extrinsic  facts  to  show  the  application 
to  the  plaintiff  of  the  defamatory  matter  out  of  which  the 
cause  of  action  arose,  but  it  is  adequate  to  aver  generally 
that  the  calumnious  article  was  published  concerning  the 
plaintiff:  B.  &  C.  Comp.  §  91.  In  commenting  upon  a 
similar  statute  of  New  York,  a  text-writer  says :  **  Where 
the  language  published  is  not  defamatory  on  its  face,  and 
becomes  so  only  by  reference  to  extrinsic  facts,  the  exist- 
ence of  those  facts  must  be  alleged  in  the  complaint": 
Townsend,  Slander  &  Libel  (4  ed.),  §  310.  *'  The  innuendo 
may  always  be  rejected,"  says  this  author,  "  when  it  merely 
introduces  matter  not  necessary  to  support  the  action": 
Townsend,  Slander  &  Libel  (4  ed.),  §  344.  If  the  words 
printed  clearly  impute  to  a  plaintiff  in  an  action  for  libel 
the  commission  of  a  crime  at  common  law  or  by  statute, 
they  are  actionable,  and  no  extrinsic  facts  need  be  alleged  : 
Worth  v.  Butler,  7  Blackf.  251 ;  Filter  v.  Dautermann,  26 
Wis.  518 ;  Langton  v.  Hagerty^  35  Wis.  150.    In  the  case 


Feb.  1906,]     Woolley  v.  Plaindealbr  Pub.  Co.  627 

at  bar  that  part  of  the  printed  language  last  quoted  hav- 
ing imputed  to  plaintiff  the  commission  of  a  statutory 
crime,  is  libelous  per  se,  and  this  being  so,  the  other  parts 
of  the  article  could  have  been  omitted,  and  it  was  unnec- 
essary to  adopt  innuendos  to  explain  the  meaning  therein 
of  the  words  of  doubtful  import  The  objection  interposed 
to  the  complaint  is  tantamount  to  a  demurrer  thereto, 
based  on  the  ground  insisted  upon,  and,  as  a  part  of  the 
language  used  is  adequate  to  sustain  the  action,  and  the 
import  thereof  is  not  qualified  or  modified  by  the  entire 
printed  article,  the  pleading  is  sufficient. 

5.  The  publication  of  the  defamatory  matter,  not  hav- 
ing been  denied,  is  admitted,  and,  being  actionable,  the 
court  should  have  so  charged  :  Pittock  v.  O^Neill,  63  Pa. 
253  (3  Am.  Rep.  544);  Pugh  v.  McCarty,  44  Ga.  383 ;  Gabe 
V.  McOinnis,  68  Ind.  538 ;  Gregory  v.  Atkins,  42  Vt.  237. 
Instead  of  doing  so,  however,  the  court,  in  addressing  the 
jury  and  referring  to  the  defendants,  said  : 

**  If  you  should  find  under  the  instructions  I  shall  give 
you  that  the  article  was  libelous,  then,  under  the  evidence 
in  this  case,  they  would  be  responsible  for  it.*' 

An  exception  having  been  taken  to  this  part  of  the 
charge,  the  error  committed  necessitates  a  reversal  of  the 
judgment,  which  is  hereby  ordered. 

6.  In  view  of  the  conclusion  we  have  reached,  it  is 
deemed  proper  to  consider  another  assignment  of  alleged 
error.  The  court,  over  objection  and  exception,  permitted 
the  defendant  to  introduce  in  evidence  certain  bills  for 
goods,  amounting  to  $392.39,  furnished  to  School  District 
No.  4,  Douglas  County,  by  the  firm  of  which  plaintiff  was 
a  member.  The  plaintiff,  as  a  school  director,  was  pro- 
hibited by  the  common  law  from  purchasing  from  him- 
self, as  a  hardware  dealer,  any  goods  that  the  school  dis- 
trict might  need,  and  though  our  statute  (B.  &  C.  Com  p. 
§  3389,  subd.  19)  might,  by  implication,  seem  to  justify 


628         Ebystonb  Mill.  Co.  v.  Equity  Min,  Co.     [47  Or. 

such  sales,  when  the  articles  furnished  were  not  intended 
to  be  used  **in  the  erection  of  schoolhduseaor  for  the  warm- 
ing, ventilating,  furnishing,  or  repairing  the  same,"  the 
rule,  when  invoked,  should  be  inflexible  that,  to  avoid  the- 
appearance  of  favoritism  in  the  discharge  of  a  public  duty,, 
every  attempted  sale  made  by  a  person  to  himself  as  an 
officer  should  be  avoided  if  possible.  The  bills  in  ques- 
tion were  admissible  in  evidence  in  mitigation  of  damages,, 
and  as  tending  to  corroborate  the  printed  accusation.  No* 
other  alleged  error  is  deemed  material. 

For  the  giving  of  the  instruction  complained  of  the- 
cause  is  remanded  for  a  new  trial.  Reversed. 


Decided  23  Janaary,  1906. 
KEYSTONE  MILLING  CO.  v.  EaXTITY  MINING  GO. 

83  Pac.  190. 

From  Grant:  Robert  Eakin,  Judge. 

Statement  by  Mr.  Justice  Moore. 

This  is  a  suit  by  the  Keystone  Mining  &  Milling  Co.  and 
another  against  the  Equity  Copper  &  Gold  Mining  Co.  to 
enjoin  an  alleged  trespass  on  real  property.  The  plaintiff 
the  Keystone  Mining  &  Milling  Co.,  a  corporation,  is  the 
owner  of  a  quartz  mining  claim  in  Grant  County,  known 
as  the  "Keystone,*'  and  its  coplaintiff,  the  Keystone  Min- 
ing Co.,  a  corporation,  is  in  possession  thereof,  pursuant 
to  a  contract  to  purchase  the  premises.  The  defendant,, 
the  Equity  Copper  &  Gold  Mining  Co.,  a  corporation,  is 
the  owner  of  quartz  mining  claims  called  the  "Colorado'^ 
and  the  "Oregon."  It  is  alleged  in  the  complaint  that  the 
defendant,  pretending  to  develop  its  claims,  willfully  tres- 
passed upon  plaintiff's  lode,  taking  therefrom  and  convert- 
ing to  its  own  use  large  quantities  of  valuable  gold-bearing 
ore.  to  plaintiffs'  damage  in  the  sum  of  $20,000,  thereby  de- 


Jan.  1906.]  Keystone  Mill.  Co.  v.  Equity  Min.  Co.     629 

stroying  the  substance  of  the  mine,  and  to  prevent  further 
injury  to  the  property  an  injunction  is.prayed.  The  answer 
•denies  the  material  allegations  of  the  complaint  and  avers 
facts  tending  to  show  the  defendant's  title  to  its  claim. 
The  right  to  extract  ore  from  the  tunnels  which  the  de- 
fendant has  run  is  asserted  by  adverse  possession  and  also 
by  estoppel.  The  reply  put  in  issue  the  allegations  of  new 
matter  in 'the  answer,  and,  the  cause  having  been  referred, 
the  court  found  frVm  the  testimony  taken  that  the  bound* 
aries  of  the- Colorado  claim  do  not  conflict  with  those  of 
the  Keystone;  that  the  southern  boundary  of  the  Oregon 
claim  overlaps  the  northern  boundary  of  the  Keystone, 
not  more  than  150  feet,  but  that  the  defendant  had  done 
no  work  on  the  Oregon  claim  within  the  limits  of  the  Key- 
stone; and  that  plaintiffs  were  not  entitled  to  an  injunc- 
tion or  to  damages.  A  decree  having  been  rendered  ac* 
cording  to  such  findings,  but  establishing  the  boundaries 
of  the  defendant's  claim,  the  Keystone  Mining  &  Milling 
Co.  appeals.  Affirmed. 

For  appellant  there  was  a  brief  and  an  oral  argument 
by  Mr,  N.  C.  Richards, 

For  respondent  there  was  a  brief  with  oral  arguments 
by  Mr,  Errett  Hicks  and  Mr,  John  Langdon  Rand. 

Mr.  Justice  Moore  delivered  the  opinion  of  the  court. 

The  question  to  be  considered  is,  where  were  the  bound- 
aries of  the  Keystone  claim  originally  located  ?  The  tran- 
script shows  that  in  1881  W.  F.  Settlemeir  located  the  Wide 
West  quartz  mining  claim,  A.  E.  Starr  the  Keystone,  and 
W.  B.  Carpenter  the  Green  Mountain.  These  claims,  as 
evidenced  by  the  notices  of  location,  which  were  duly  re- 
corded, were  each  1,500  feet  in  length  and  300  feet  in  width 
on  each  side  of  a  lode,  and  extended  in  the  order  named 
southwesterly,  and  were  treated  by  the  locators,  who  were 
partners  in  the  enterprise,  as  an  entity  known  as  the  **Key- 


630         Keystone  Mill.  Co.  v.  Equity  Min.  Co.     [47  Or. 

stone  Mines."  The  location  notices  contained  separate 
statements  as  follows:  The  Wide  West:  "Running  from  the 
Keystone  quartz  claim  northerly.  Location  on  the  hillside 
on  the  lef  t;hand  side  of  the  Left-Hand  Fork  of  Dixie  Creek.'* 
The  Keystone:  ^'Running from  this  notice  southerly.  This 
location  is  on  the  hill  on  the  left-hand  side  of  the  Left-Hand 
Fork  of  Dixie  Creek,  running  southerly  toward  what  is 
known  as  *Henry  Gulch.'"  The  Green  Mountain:  "Said 
claim  runs  in  a  southerly  direction  from  the  Henry  Gulch 
south  of  the  Keystone  quartz  ledge."  The  plaintiffs  intro- 
duced in  evidence  maps  showing  that  the  group  of  mines 
is  situated  in  sections  2  and  11,  in  township  12  S.  of  range 
33  E.  of  the  Willamette  Meridian.  There  is  represented 
on  one  of  these  maps  ravines  marked  "Comer  Gulch"  and 
south  thereof  "Henry  Gulch,"  which  are  nearly  parallel, 
extending  southeasterly  and  terminating  at  a  stream  noted 
as  "Left  or  South  Fork  of  Dixie  Creek";  such  creek  having^ 
been  named  "left"  contrary  to  geographical  rule  by  look- 
ing up  stream.  While  the  group  of  mines  was  so  owned 
by  the  partners,  Starr,  on  January  27, 1885,  located  west- 
erly thereof  another  quartz  mining  claim  called  the  "Colo- 
rado"; the  notice  stating  that  it  extended  southerly  from 
Comer  Gulch.  Settlemeir  having  parted  with  his  estate  ia 
the  Keystone  Mines,  his  successors  in  interest  and  Starr 
and  Carpenter  on  July  5, 1886,  executed  to  J.  Frank  Watson 
a  deed  to  the  Keystone,  the  Wide  West,  and  the  Green 
Mountain  claims;  the  conveyance  stating  that  the  Wide 
West  and  the  Green  Mountain  claims  were  northerly  and 
southerly  extensions,  respectively,  of  the  Keystone.  The 
Keystone  Mining  &  Milling  Co.  having  been  incorporated,. 
Watson,  on  July  12,  1886,  executed  to  it  a  deed  to  the 
mining  claims  which  he  purchased.  This  corporation 
operated  the  mines  about  four  years,  when  it  abandoned 
the  Wide  West  and  Green  Mountain  claims,  whereupon 
the  former  was  attempted  to  be  relocated,  June  24,  1891, 


Jan.  1906.]  Keystone  Mill.  Co.  v.  Equity  Min.  Co.     631 

by  W.  W.  Jones,  C.  R.  Johnson,  and  W.  B.  Woodruff,  who 
placed  the  southern  boundary  thereof  at  Comer  Gulch 
calling  the  claim  the  "Little  Denver."  An  amended  loca- 
tion of  the  last  named  claim  was  made  by  the  same  persons, 
November  9,  1891,  in  which  the  courses  and  distances 
from  the  point  of  discovery  are  given ;  the  notice  speci- 
fying that  the  claim  was  situate  "on  the  north  side  of  Comer 
Gulch,  near  Main  Dixie  Creek."  Isham  Laurence,  having 
secured  the  title  to  the  Little  Denver,  relocated  that  claim, 
September  9,  1898,  calling  it  the  "Oregon."  Having  se- 
cured the  estate  of  A.  E.  Starr  and  of  others  in  the  Colo- 
rado claim,  he  executed  a  deed  thereof  and  also  of  the 
Oregon  claim,  November  7,  1902,  to  the  Equity  Copper  & 
Gold  Mining  Co.,  which  commenced  running  tunnels,  ex- 
pending about  $23,000  for  labor,  when  it  discovered  a  valu- 
able deposit  of  gold-bearing  ore.  The  Keystone  Mining 
&  Milling  Co.,  on  August  24, 1903,  entered  into  a  contract 
with  the  Geiser-Hendryx  Investment  Co.,  a  corporation, 
whereby  it  stipulated  to  sell  and  convey  to  the  latter  the 
Keystone  quartz  mining  claim  for  the  sum  of  $20,000, 
payable  in  18  months,  giving  possession  of  the  premises. 
A.  Philbrick,  a  mining  engineer,  at  the  request  of  the 
Geiser-Hendryx  Investment  Co!  surveyed  what  he  consid- 
ered to  be  the  Keystone  quartz  mining  claim,  placing  the 
north  boundary  thereof  about  150  feet  north  of  Comer 
Gulch,  and  on  August  22,  1903,  Watson,  as  president  of 
the  Keystone  Mining  &  Milling  Co.,  subscribed  the  latter's 
name  to  an  amended  location  notice  of  that  claim,  corre- 
sponding to  Philbrick's  survey  thereof.  Watson  there- 
after, concluding  that  such  survey  was  incorrect,  employed 
A.  B.  Browne,  a  mining  engineer,  who  surveyed  what  he 
considered  to  be  the  Keystone  claim,  placing  the  north 
boundary  thereof  about  800  feet  north  of  Comer  Gulch, 
thereby  finding  an  excess  of  228.7  feet  on  the  south  end 
of  the  claim.    The  Keystone  Mining  &  Milling  Co.,  on 


632         Keystone  Mill.  Co.  v.  Equity  Min.  Co.     [47  Or. 

December  22, 1903,  made  an  amended  location  of  the  Key- 
stone claim,  according  to  Browne's  survey,  and  the  Geiser- 
Hendryx  Investment  Co.,  on  February  9, 1904,  located  the 
excess  found  by  Browne,  which  was  called  the  "Keystone 
Fraction."  The  corporation  last  mentioned  assigned  all 
its  interest  in  the  contract  for  the  purchase  of  the  mine 
to  the  Keystone  Mining  Co.  If  the  northern  boundary  of 
the  Keystone  claim  is  the  line  located  by  Browne,  the  west 
boundary  thereof  overlaps  the  northeast  corner  of  the 
Colorado  claim  about  200  feet;  the  southwest  corner  of 
the  Keystone  Fraction  claim  being  about  on  the  line  of 
the  Colorado  claim.  If,  however,  the  northern  boundary 
of  the  Keystone  claim  coincides  with  the  line  surveyed  by 
Philbrick,  and  as  found  by  the  trial  court,  though  it  over- 
laps the  southern  boundary  of  the  Oregon  claim,  the  west- 
ern boundary  of  the  Keystone  claim  does  not  interfere 
with  the  eastern  boundary  of  the  Colorado  claim,  and,  as 
no  work  has  been  done  by  the  defendant  On  the  Oregon 
claim  within  the  boundaries  of  the  Keystone  claim,  the 
plaintiffs  have  sustained  no  damage  and  are  not  entitled 
to  an  injunction.  The  relocation  of  the  northern  bound- 
ary of  the  Keystone  claim  as  originally  indicated  by  the 
locator  is  necessarily  decisive  of  the  issue  involved. 

J.  Frank  Watson,  as  plaintiff's  witness,  testified  that, 
•  when  he  was  negotiating  for  the  purchase  of  the  group  of 
mines,  A.  E.  Starr,  one  of  the  locators,  pointed  out  to 
him  what  purported  to  be  the  boundary  common  to  the 
Keystone  and  to  the  Wide  West  claims,  calling  his  atten- 
tion to  a  stump  near  an  open  cut  to  which  a  board  was 
nailed,  having  thereon  location  notices  of  such  claims, 
which  stump  stood  about  600  or  700  feet  north  of  Comer 
Gulch,  and  saying  that  the  point  indicated  was  at  the  dis- 
covery shaft  of  the  Keystone  claim.  Watson  further  testi- 
fied that  at  that  time  he  made  a  topographical  sketch  of 
the  several  claims,  which,  having  been  introduced  in  evi- 


Jan.  1906.]  Keystone  Mill.  Co.  v.  Equity  Min.  Co.     633 

dence,  has  indicated  thereon  the  boundary  common  to  the 
Wide  West  and  to  the  Keystone  claims  located  at  a  winze 
marked  "30  feet  deep,"  which  was  dug  near  the  summit 
of  a  hill ;  the  outline  showing  a  deep  depression  intended 
to  denote  Comer  Gulch  as  being  situate  about  the  middle  of 
the  Keystone  claim.  The  witnesses  Justin  Henry,  Robert 
•C.  Reed,  Richard  Hall,  W.  F.  Settlemeir,  the  locator  of  the 
Wide  West,  and  W.  B.  Carpenter,  the  locator  of  the  Green 
Mountain  claim,  severally  testified  that  the  location  notice 
of  the  Keystone  claim  was  posted  at  the  point  indicated  by 
Watson,  The  foregoing  is  a  summary  of  the  testimony 
given  by  plaintiffs*  witnesses  tending  to  show  that  the 
north  boundary  of  the  Keystone  claim  was  located  about 
800  feet  north  of  Comer  Gulch. 

Isham  Laurance  testified  that  Starr  pointed  out  to  him 
the  Keystone  claim  as  lying  south  of  Comer  Gulch,  and 
J.  W.  Mack  testified  that  he  saw  posted  on  a  tree  south  of 
Comer  Gulch  the  Keystone  location  notice,  in  speaking  of 
which  he  said :  *'That  was  the  first  quartz  notice  I  ever 
saw.''  A  blue  print  of  the  several  claims,  offered  in  evi- 
•dence  by  the  defendant  has  indicated  thereon  a  point  de- 
nominated *'Mack  Notice,"  which,  according  to  scale,  is 
about  175  feet  south  of  Comer  Gulch.  Samson  Roy  testi- 
tied  that  Starr  pointed  out  to  him  the  northeast  corner  of 
the  Keystone  claim,  which  was  about  270  or  300  feet  north 
of  Comer  Gulch,  and  W.  E.  Gifford  testified  that  he  was 
employed  as  a  miner  by  Starr,  who  showed  him  the  north 
boundary  of  the  Keystone  claim,  which  was  evidenced  by 
a  stump  standing  about  three  or  four  rods  north  of  such 
gulch.  The  testimony  last  mentioned  constitutes  all  the 
direct  evidence  tending  to  show  that  the  north  boundary 
of  the  Keystone  claim  was  located  near  Comer  Gulch,  and, 
although  the  greater  number  of  witnesses  place  such  line 
About  800  feet  north  of  the  gulch,  we  think  the  testimony 
given  by  defendant's  witnesses,  when  considered  in  con- 


€34         Keystone  Mill.  Co.  v.  Equity  Min.  Co.     [47  Or. 

nection  with  certain  facts  to  be  mentioned,  preponderatefi, 
and  that  the  finding  and  decree  of  the  trial  court  on  that 
issue  are  correct. 

The  witness  J.  W.  Mack,  who  is  a  surveyor,  testified  that 
Starr  employed  him  to  ascertain  the  legal  subdivisions  of 
public  land  upon  which  lie  had  built  a  house,  saying  to 
the  witness  that,  as  there  was  no  proper  place  on  the  Key- 
stone claim  to  erect  a  dwelling,  he  had  built  across  the 
gulch  and  wanted  a  description  of  the  premises,  so  he 
could  make  a  location  thereof  and  save  his  home.  Mack 
further  testified  that  Starr  took  him  to  a  quarter  post 
standing  just  above  the  mouth  of  the  gulch,  and  thence 
to  the  section  corner  one-half  mile  west,  and,  returning 
to  the  quarter  post,  he  found  by  sighting  through  to  the 
other  point  that  the  house  was  not  on  the  Keystone  claim, 
whereupon  the  witness  gave  Starr  a  description  of  the  land 
which  he  desired.  Justin  Henry  testified  that  Starr  took 
up  a  piece  of  land  on  Comer  Gulch.  W.  F.  Settlemeir  testi- 
fied that  he  thought  it  was  Starr's  intention  to  take  a  land 
claim,  so  that  his  house,  which  had  not  been  moved,  might 
be  thereon.  Isham  Laurance  testified  that  Starr's  house 
was  built  on  vacant  ground,  and  that,  when  the  mining 
claim  was  sold  to  Watson,  Starr  received  $500  more  than 
either  of  his  partners,  which  sum  was  paid  him  for  his 
house.  M.  Howell  also  testified  that  Starr  built  his  house 
individually,  and  that  he  was  paid  $500  for  the  dwelling. 
A.  B.  Browne,  who  surveyed  the  Keystone  claim  for  plain- 
tiffs, testified  that  his  attention  was  called  to  a  building 
on  the  north  side  of  Comer  Gulch,  which  was  pointed  out 
to  him  as  Starr's  house.  One  of  the  maps  which  this  wit- 
ness prepared,  and  which  was  received  in  evidence,  has 
delineated  thereon  a  square  marked  "Starr  House."  Meas- 
uring from  the  west  line  of  such  square  west  to  the  bound- 
ary of  the  Keystone  claim  as  located  by  Browne,  accord- 
ing to  the  scale  of  his  map,  the  distance  is  about  60  feet. 


Jan.  1906.]  Keystone  Mill.  Co.  v.  Equity  Min.  Co.     635 

That  Starr's  house  was  built  west  of  the  side  line  of  the 
Keystone  claim,  as  originally  located,  has  been  established^ 
we  think,  beyond  a  doubt.  As  Browne^s  survey  places  this 
building  within  the  limits  of  the  Kiey stone  claim,  it  is  evi- 
dent that  the  western  boundary  thereof  has  been  **floated** 
to  the  west  since  it  was  originally  located.  This  result  was 
secured  by  adopting  the  stump  identified  by  plaintiff's  wit- 
nesses as  the  north  center  end  of  the  Keystone  claim,  the 
west  boundary  of  which  is  not  parallel  with  the  east  bound- 
ary of  the  Colorado  claim. 

The  Wide  West  and  the  Green  Mountain  claims  were  in- 
tended by  the  original  locators  thereof  to  be  the  northerly 
and  southerly  extensions,  respectively,  of  the  Keystone 
claim.  An  examination  of  the  location  notice  of  the  Green 
Mountain  claim  will'  show  that  it  contains  the  following- 
statement:  "Said  claim  runs  in  a  southerly  direction  from 
Henry  Gulch  and  south  of  the  Keystone  quartz  ledge.'** 
Henry  Gulch  is  about  2,200  feet  south  of  Comer  Gulch,  as 
indicated  by  the  scale  adopted  by  Browne  in  making  his 
map.  Construing  the  notice  of  the  Green  Mountain  claim 
according  to  the  fair  import  of  the  words  used  in  the  clause 
quoted,  we  think  there  can  be  no  doubt  that  it  was  the  in- 
tention of  the  locator  of  that  claim  to  make  Henry  Gulch 
the  northern  boundary  thereof.  The  distance  from  Comer 
Gulch  to  Henry  Gulch  being  about  2,200  feet  seems  to  sub- 
stantiate J.  W.  Mack's  testimony  as  to  his  having  seen  the 
location  notice  of  the  Keystone  claim  so  far  south  of  Comer 
Gulch,  and  to  corroborate  the  testimony  of  Isham  Lau- 
rance  to  the  effect  that,  when  Starr  showed  him  the  Key- 
stone mine,  he  took  this  witness  south  of  that  ravine.  The 
distance  mentioned  would  also  seem  to  explain  the  descrip- 
tion in  the  location  notice  of  the  Green  Mountain  claim  on 
the  assumption  that  the  Keystone  claim  extended  to  Henry 
Gulch,  though  the  notice  of  the  latter  claim  is  only  as  fol- 
lows :  '*This  location  is  on  the  hill  on  the  Left-Hand  Fork 


•636         Kbystonb  Mill.  Co.  v.  Equity  Min.  Co.     [47  Or. 

-of  Dixie  Creek,  running  southerly  toward  what  is  known 
as  *Henry  Gulch.''*  The  short  space  intervening  between 
these  gulches  would  further  appear  to  elucidate  the  de- 
scription last  given,  by  assuming  that,  if  the  north  bound- 
ary of  the  Keystone  claim  was  on  the  line  indicated  by  the 
stump  referred  to  as  the  initial  point,  Starr's  notice  of  lo- 
-cation  would  probably  have  stated  that  his  claim  extended 
-across  Comer  Gulch  ;  the  testimony  disclosing  that  such 
ravine  is  deeper,  but  not  so  broad,  as  Henry  Gulch. 

W.  F.  Settlemeir,  the  locator  of  the  Wide  West  claim, 
-after  an  absence  of  about  20  years,  visited  the  territory 
originally  included  in  that  claim,  in  company  with  F.  D. 
-Stanley,  Samson  Roy,  D.  R.  Roberts,  and  W.  J.  Hughes,  who 
severally  testified  that  he  took  them  to  a  stump  near  an 
open  cut  north  of  Comer  Gulch,  and  said  that  the  Wide 
West  claim  originally  extended  north  and  south  from  that 
point  about  700  and  800  feet,  respectively  ;  that  Settlemeir 
further  said  that  his  son-in-law,  W.  J.  Galbreath,  located  a 
-claim  as  a  northern  extension  of  the  Wide  West  claim,  but, 
not  having  made  any  discovery  of  valuable  mineral  ore 
therein,  he  dug  a  hole  in  his  claim  and  put  therein  some 
<juartz  which  he  took  from  the  Wide  West  claim  ;  that  Set- 
tlemeir, going  about  700  feet  north  from  such  open  cut, 
-came  to  a  hole  partially  filled,  and  Roberts, digging  therein, 
found  some  quartz  which  Settlemeir  said  had  been  brought 
from  the  Wide  West  claim.  Two  of  the  witnesses  say  that, 
measuring  from  such  hole,  it  was  found  to  be  60  feet  south 
of  the  north  boundary  of  the  Oregon  claim.  Settlemeir  ad- 
mits making  the  statements  so  imputed  to  him,  but,  ex- 
plaining them,  he  testified  that,  after  showing  such  wit- 
nesses what  he  supposed  to  be  the  boundaries  of  the  Wide 
West  claim,  he  was  informed  by  his  son-in-law,  and  also 
by  W.  B.  Carpenter,  that  the  open  cut  to  which  he  went 
was  in  the  Keystone  claim,  and  that,  his  memory  having 
been  refreshed  by  such  information,  he  was  satisfied  that 


Jan.  1906.]  Keystone  Mill.  Co.  v.  Equity  Min.  Co.     63T 

he  erred  in  what  he  at  first  considered  to  be  the  bound- 
aries of  the  Wide  West  claim.  Settlemeir  further  testified 
that  he  came  to  the  hole  referred  to  sooner  than  he  ex- 
pected to  find  it.  W.  J.  Galbreath  testified  that,  going  about 
1,500  feet  north  of  the  open  cut,  he  dug  a  hole  about  20 
inches  deep,  and,  not  discovering  any  ore,  Starr  thereafter 
informed  him  that  he  had  taken  some  quartz  and  put  it 
into  such  hole,  so  that  the  witness  could  make  a  location 
when  he  had  time  to  find  the  ledge. 

Mr.  Settlemeir  is  70  years  old,  and  he  had  not  been  at 
the  Keystone  claim  for  about  20  years,  until  he  visited  it 
just  prior  to  the  trial  herein,  in  company  with  the  officers, 
agents,  and  employees  of  the  defendant  company.  His  age 
and  the  time  that  had  elapsed  since  he  saw  the  property 
explains,  in  our  opinion,  why  he  so  readily  acquiesced  in 
the  suggestion  of  others  in  respect  to  the  boundaries  of  the 
Keystone  claim.  We  do  not  doubt  the  sincerity  of  his  ulti- 
mate belief  in  respect  to  the  issue  involved,  for  an  exam- 
ination of  his  testimony  clearly  shows  a  desire  to  tell  the- 
whole  truth  ;  but  we  nevertheless  believe  that  the  discovery 
of  the  quartz  in  the  hole  which  he  claimed  his  son-in-law 
dug,  conclusively  shbws  that  his  prior  opinion  as  to  the 
north  boundary  of  the  Wide  West  claim  was  correct.  That 
A.  E.  Starr,  the  locator  of  the  Keystone  claim,  showed  Wat- 
son a  stump  near  a  winze,  which  he  claimed  was  on  the 
boundary  common  to  that  claim  and  to  the  Wide  West,, 
there  can  be  no  doubt,  as  isevidenced  by  the  topographical 
sketch  made  by  Watson  at  the  time  he  purchased  the  prop- 
erty. It  will  be  remembered  that  Starr  pointed  out  to  vari- 
ous persons,  who  appeared  as  witnesses  at  the  trial,  dif- 
ferent points  as  corners  and  north  center  ends  of  the^ 
Keystone  claim.  The  variant  points  so  indicated  by  him 
cannot  all  be  correct,  and,  this  being  so,  we  think  the  loca- 
tion notice  of  the  Green  Mountain  claim,  fixing  the  north 
boundary  thereof  at  Henry  Gulch  ;  the  building  of  Starr's 


<538         Keystone  Mill.  Co.  v.  Equity  Min.  Co.     [47  Or. 

house  off  the  Keystone  claim  as  originally  located  ;  and  the 
discovery  of  the  quartz  in  the  hole  pointed  out  by  Settle- 
meir — ^give  preponderance  to  the  testimony  produced  by 
the  defendant  and  irresistibly  lead  to  the  conclusion  that 
the  Keystone  claim  did  not  originally  extend  so  far  north 
as  Starr  claimed  to  Watson  and  to  others  who  appeared  as 
plaintiff's  witnesses. 

In  our  opinion  the  testimony  of  J.  W.  Mack,  to  the  effect 
that  he  saw  the  location  notice  of  the  Keystone  claim  posted 
on  a  tree  standing  south  of  Comer  Gulch  is  entitled  to 
credit,  because  he  says  such  notice  was  the  first  he  had 
ever  seen  of  a  quartz  mining  claim.  Such  notice,  being 
the  first  of  its  kind  Mack  had  ever  seen,  would  in  all  prob- 
ability attract  his  attention,  and  thus  impress  upon  his 
memory,  not  only  the  form  thereof,  but  the  particular 
place  of  its  location  as  well.  This  notice  is  attempted  to 
be  explained  by  several  of  plaintiffs*  witnesses,  who  testify 
that  an  old  water  right  notice  was  posted  in  Comer  Gulch. 
We  do  not  think  the  explanation  contradicts  Mack's  state- 
ment, for  the  point  to  which  he  referred  is  several  feet 
south  of  the  gulch,  where  the  testimony  shows  the  surface 
of  the  ground  to  be  very  precipitous,  in  which  place  it 
would  seem  unreasonable  to  think  that  a  water  right  notice 
would  be  posted,  but  rather  in  the  ravine,  as  testified  to 
by  some  of  plaintiffs'  witnesses,  thus  showing  that  more 
than  one  notice  was  posted  in  that  vicinity. 

We  believe  that  a  fair  consideration  of  all  the  testimony 
introduced  at  the  trial,  when  construed  in  connection  with 
the  circumstances  adverted  to,  fairly  shows  that  the  north 
boundary  of  the  Keystone  claim  never  originally  extended 
north  of  Comer  Gulch  ;  but,  the  trial  court  having  estab- 
lished such  boundary  on  aline  about  150  feet  north  thereof, 
and  no  complaint  having  been  made  by  the  defendant,  we 
conclude  to  leave  the  boundaryas  thus  determined.  The 
boundaries  of  the  Colorado  claim,  in  which  the  mining 


Feb.  1906.]  State  v.  Bollam.  639 

complained  of  has  been  done  by  the  defendant,  are  hereby 
established  as  surveyed  by  F.  D.  Stanley,  to  wit :  Begin- 
ning at  the  stake  at  the  southwest  corner  of  the  claim,  from 
which  the  northwest  corner  of  section  11  in  township  12 
south  of  range  33  east  bears  north  87  deg.  1  min.  west 
1,521.59  feet;  thence  north  39  deg.  11  min.  east  1,475.09 
feet,  to  a  stake;  thence  south  60  deg.  10  min.  west  1,500 
feet  to  a  stake ;  and  thence  westerly  to  the  place  of  begin- 
ning. 

It  follows,  from  these  conditions,  that  the  decree  of  the 
court  below  is  affirmed.  Arrirmed. 


Argued  9  January,  decided  6  February,  1906. 

STATE  v.  BOIiliAM. 

84  Pao.  479. 

From  Multnomah  :  Arthur  L.  Frazer,  Judge. 

This  is  a  prosecution  against  Frank  Bollam  for  a  viola- 
tion of  the  act  of  1905  relating  to  the  sale  of  railroad  tickets. 
Defendant  appeals  from  a  sentence  to  pay  a  fine. 

Affirmed. 

For  appellant  there  was  a  brief  over  the  names  of  Martin 
L.  Pipes,  Henry  E.  McGinn  and  John  F.  Logan, 

For  the  State  there  was  a  brief  over  the  names  of  An- 
drew  M.  Crawford^  Attorney  General,  John  Manning^  Dis- 
trict Attorney,  Dan  /.  Malarkey,  James  F.  McElroy,  and 
Arthur  C.  Spencer. 

Mr.  Justice  Hailey  delivered  the  opinion. 

This  case  having  been  argued  and  submitted  with  the 
case  of  State  v.  Thompson,  47  Or.  492  (84  Pac.  476),  upon 
the  authority  of  that  case  the  judgment  of  the  lower  court 
is  affirmed.  Affirmed. 


640  Sbaweard  v.  Duncan.  [47  Or. 

Decided  8  April,  1906. 
SBAWBABD  v.  BUKCAK. 

84  Pac.  1048. 

From  Malheur:    Georqe  E.  Davis,  Judge. 

Suit  by  J.  H.  Seaweard  against  Pearl  and  Mamie  Dun- 
can, and  from  the  decree  entered  the  defendants  appeal. 

Affirmed. 

For  plaintiff  there  was  a  brief  over  the  name  of  King  & 
Brooke,  with  an  oral  argument  by  Mr.  William  Rufus  King. 

For  defendants  there  was  a  brief  and  an  oral  argument 
by  Mr.  George  Wesley  Hayes. 

Mr.  Chief  Justice  Bean  delivered  the  opinion. 

This  is  a  suit  to  determine  the  respective  rights  of  the 
plaintiff  and  defendants  to  the  use  of  the  waters  of  Crooked 
Creek,  in  Malheur  County.  Crooked  Creek  is  a  perennial 
stream  carrying  from  600  to  800  inches  of  water  at  the 
place  of  diversion  by  the  parties  to  this  litigation,  when 
the  quantity  is  not  diminished  by  parties  farther  up  the 
stream.  The  plaintiff  is  the  owner  of  160  acres  of  arid 
land  through  which  the  creek  flows.  It  was  filed  on  by  one 
Florence  Gans  in  May,  1894,  under  the  desert  land  act^ 
and  she  conveyed  her  interest  therein  to  E.  W.  Crutcher,. 
who  filed  a  homestead  thereon  in  1895  and  received  a 
patent  in  1901.  On  November  20, 1895,  Crutcher  filed  in 
the  county  clerk's  office  a  notice  of  intention  to  appropri- 
ate 250  inches  of  water  from  the  creek  for  irrigation. 
During  the  winter  and  spring  of  1895  and  1896  he  con- 
structed a  ditch  with  a  carrying  capacity  of  500  or  600 
inches  of  water  from  a  point  on  the  stream  a  short  dis- 
tance above  his  land,  with  the  intention  of  appropriating 
250  inches,  or  so  much  thereof  as  might  be  necessary,  to 
irrigate  his  premises.  In  1896  he  had  under  cultivation^ 
and  irrigated  with  water  through  this  ditch,  about  20 


April,  1906.]         Seawkard  v,  Duncan.  641 

acres,  and  continued  to  increase  his  cultivated  area  each 
succeeding  year,  as  his  means  and  ability  would  permit, 
until  he  sold  his  land  and  water  right  to  the  plaintiff  in 
1902,  since  which  time  the  plaintiff  has  from  year  to  year 
enlarged  his  cultivated  area,  until  at  the  commencement 
of  this  suit  he  had  in  cultivation  about  80  acres,  and  there 
yet  remains  about  an  equal  amount  of  irrigable  land  which 
he  intended  to  put  into  cultivation.  In  1901  the  defend- 
ants, who  are  the  owners  of  a  tract  of  land  some  distance 
from  Crooked  Creek,  went  upon  ^he  stream  at  a  point  a 
short  distance  above  the  head  of  plaintiff's  ditch,  and  di- 
verted water  for  the  irrigation  of  their  land,  and  contin- 
ued to  use  the  same  until  in  May  or  June,  1904,  when  their 
diversion  interfered  with  the  alleged  prior  rights  of  the 
plaintiff,  and  this  suit  was  commenced.  The  pleadings 
show  in  detail  the  respective  claims  and  rights  of  the 
parties,  but  it  is  unnecessary  to  set  them  out.  The  court 
below  decreed  upon  the  testimony  that  the  plaintiff  was 
entitled  to  a  first  right,  by  prior  appropriation,  to  120 
inches  of  water;  that  after  such  right  should  be  supplied 
defendants  were  next  entitled  to  80  inches ;  and  that  after 
plaintiff  and  defendants  had  received  the  amounts  to  which 
they  were  entitled  by  appropriation  the  surplus  should  be 
permitted  to  flow  down  the  natural  channel  of  the  stream 
and  through  the  lands  of  plaintiff.  From  this  decree  the 
defendants  appeal,  claiming  that  plaintiff  is  not  entitled, 
by  prior  appropriation,  to  the  amount  of  water  awarded 
him  by  the  court  below,  and  that  after  the  rights  by  ap- 
propriation of  the  respective  parties  have  been  supplied 
the  remainder  of  the  water  in  the  creek  should  be  divided 
equally  between  the  plaintiff  and  the  defendants. 

An  examination  of  the  record  satisfies  us  that  the  find- 
ings of  the  trial  court  as  to  the  amount  of  water  to  which 
plaintiff  is  entitled  by  appropriation  is  correct.    It  is  ad- 

47  Or. 41 


642  Seawbard  v.  Duncan.  [47  Or. 

rnitted  that  as  against  the  defendants  he  is  the  prior  ap- 
propriator,  and  therefore  the  first  in  right.  He  has  about 
120  acres  of  irrigable  land,  which  requires  one  inch  of 
water  to  the  acre  to  irrigate  it  properly.  In  1895  that 
amount  of  water  was  actually  diverted  from  the  stream  by 
his  grantor,  and  the  evidence  shows  that  the  plaintiff  and 
his  predecessors  in  interest  have  been  reasonably  diligent 
in  reducing  their  land  to  cultivation  and  making  a  bene- 
ficial use  of  the  water  so  appropriated.  He  is  therefore 
entitled,  as  against  the  defendants,  by  right  of  prior  ap- 
propriation to  the  water  awarded  him.  The  evidence  is 
that  the  defendants  have  about  80  acres  of  irrigable  land, 
a  part  of  which  only  is  under  cultivation.  The  decree  of 
the  court  below  awards  them  sufficient  water,  after  the 
plaintiff's  prior  right  is  satisfied,  for  all  of  their  land.  This 
is  clearly  as  favorable  a  decree  as  they  are  entitled  to. 
They  are  nonriparian  proprietors,  and  can  have  no  rights 
in  the  surplus  water,  if  any,  after  the  appropriations  are 
satisfied.  The  plaintiff  has  acquiesced  in  the  decree  award- 
ing the  defendants  a  second  right  to  water  by  appropria- 
tion by  not  appealing  therefrom.  The  question,  therefore, 
as  to  whether  his  prior  appropriation  is  inconsistent  with 
the  claim  as  riparian  proprietor,  as  it  may  affect  the  rights 
of  the  defendants  in  this  litigation,  is  not  before  us.  The 
decree  of  the  court  below  is  therefore  affirmed. 

Affirmed. 


INDEX 


INDEX. 


ABANDONMENT. 

Effect  of  Confinement  In  Penitentiary  for  Crime  on  Homestead  Right  There- 
tofore Initiated.   See  Public  Lands,  2. 

ABATEMENT.   . 

Waiving  Plea  of  by  Joining  With  Plea  to  Merits  or  by  Answering  Over.    Bee 
Pleadings,  14, 16. 

ABBREVIATION  of  Names  on  Tax  Roll.    See  Taxation,  7. 

ACCRUAL  of  Right  of  Action.   See  Limitation  of  Actions. 

ACTION. 

Joining  Legal  and  Equitable  Defenses. 

Section  74,  fi.  A  C.  Com  p.,  aathorizlng  a  defendant  to  set  forth  by  answer  aa 
many  defenses  as  he  may  have,  does  not  permit  the  Joinder  of  legal  and  eqal  table 
•defenses.  Oohn  v.  Wemmet  146. 

ACTS  of  Legislature. 

Constitutionality  of  Legislative  Enactments.    See  Const.  Law. 

ADEQUATE  REMEDY  AT  LAW. 

Jurisdiction  of  Equity  to  SetK>ff  Opposing  Judgments.    See  Equity,  1. 
Restraining  Action  at  Law  to  Recover  Money  Collected  by  an  Agent  and 
Paid  Under  an  Alleged  Paramount  Title.   See  Judgment,  2. 

ADMINISTRATION  of  Estates  of  Deceased  Persons.    See  Executobs. 

ADMISSIONS. 

Consideration  of  Admissions  Against  Interest.  Morgan  v.  ShaWf  880. 

Competency  of  Statement  by  Deceased  Debtor.   See  Executobs,  4. 

ADVERSE  CLAIM.   Determination  of.   See  Quieting  Title. 

AGENTS  A>^D  AGENCY.    Same  as  Pbincipal  and  Agent. 

AGGRAVATED  DAMAGES. 

Necessity  of  Pleading  Special  Statute  as  Basis  for  Claim  by  Executor.   See 
Damages,  1,  and  Executobs,  6, 7. 

ALLEGATA  ET  PROBATA.    See  Pleading,  8.  7, 8. 

ALIMONY. 

Increasing  Total  Amount  of  an  Appeal.    See  Divorce,  2. 
Source  of  Authority  for  Granting  in  Oregon.    See  Divorce,  4. 
Extent  of  Right  to  Grant  Under  Statute.    See  Divobce,  5. 
Right  to  Grant  Other  Than  Money.    See  Divorce,  6, 7. 

AMENDMENT. 

Implied  Amendment  by  Subsequent  Act.    See  Statutes,  8. 

ANTICIPATION. 

Complaint  Showing  Excuse  for  Exception  ~  Effect  of  Separate  Plea  of  Excep- 
tion A^ter  a  Denial.    See  Pleading,  0. 

APPEALABLE  ORDER.    See  Appeal,  1,  2. 


646  Index, 

appeal  and  error. 

Appealability  of  Order  Entered  Without  Jurisdiction  of  Cause, 

1.  A  final  order  entered  In  a  case  wherein  the  court  is  without  Jurisdiction 
of  the  cause  of  suit  does  not  terminate  the  controversy,  but  Is  appealable. 

Whelan  v.  MeMcUum^  57- 
Decreeino  Right  to  Redeem. 

2.  An  order  adjudi^lng  that  a  party  Is  entitled  to  redeem  from  a  mortgage 
sale,  fixing  the  amount  to  be  paid  and  the  time  within  which  the  redemption 
must  be  made,  and  determining  all  the  rights  of  both  parties  In  and  to  the  prop- 
erty, but  reserving  the  details  of  an  accounting  for  the  rents  and  the  distribution 
of  the  redemption  fund,  is  a  final  order  determining  the  rights  of  the  parties, 
which  is  appealable,  within  the  meaning  of  Section  &17,  B.  &  C.  Comp. 

Marquam  v.  JRosSy  374. 

Objection  of  Want  of  Cause  of  Suit. 

8.  The  objection  that  the  fact«  stated  in  a  complaint  do  not  constitute  a  cause 
of  suit  may  be  first  urged  on  appeal,  and  defendant  is  not  concluded  by  the 
decree.     Horn  v.  United  States  Mining  Oo.  124;  Woolep  v.  Plaindealer  Pub.  Cb.  619. 

Time  of  Reservino  Exception. 

4.  Under  Section  109  of  B.  A  C.  Comp.,  defining  an  exception  as  an  objection 
taken  at  the  trial  to  a  deqlsion  upon  matter  of  law,  an  exception  must  be  taken 
at  the  trial,  in  order  to  obtain  appellate  review  of  a  ruling  on  testimony,  and  the 
subsequent  allowance  of  such  an  exception  by  the  trial  Judge  does  not  cure  the 
omission  to  take  the  exception  at  the  proper  time.  Annant  v.  Seweli,  372. 

Bond  in  Forcible  Detainer  Case. 

5.  In  actions  of  forcible  entry  or  detainer  no  stay  bond  is  required  on  appeal- 
ing from  the  circuit  court,  the  bond  given  when  the  appeal  was  taken  from  the 
Justice's  court  being  sufficient  until  the  case  is  decided  in  the  last  court  to  which 
it  may  be  taken.  Woofer  v.  Hurst,  1.56. 

Oral  Instructions  as  Part  of  Record  of  Trial  Court— Bill  of  Ex- 
ceptions—Diminution OF  Record. 

6.  Oral  instructions  to  the  Jury  are  not  a  part  of  the  record  of  the  trial  court, 
under  B.  A  C.  Comp.  g  182,  subd.  6,  requiring  the  charge  to  the  Jury  to  be  reduced 
to  writing  and  filed  with  the  clerk  at  the  request  of  either  party,  so  that  unless 
such  instructions  are  written  out  afterward  and  made  a  part  of  the  bill  of  excep- 
tions, they  cannot  reach  the  supreme  court.  Oasto  v.  Murray,  57. 

Supplying  Diminished  Transcript— Oral  Instructions. 

7.  A  diminished  transcript  cannot  be  supplied  by  matter  not  part  of  the 
records  of  the  trial  court,  as,  for  example,  by  a  copy  of  the  oral  Instructions 
taken  stenographically  and  extended,  such  writing  not  being  part  of  the  statu- 
tory record  of  the  trial.  Catto  v.  Murray^  57. 

DiSMissiNO  Appeal  for  Want  of  Subject  for  Consideration. 

8.  Where  no  question  to  be  reviewed  or  considered  is  presented  by  the  record 
an  appeal  should  be  dismissed.  Miles  v.  Swa^ison,  213. 

Dismissing  Appeal  — Delay  in  Filing  Brief. 

9.  The  unexcused  failure  of  appellant  to  file  a  brief  within  20  days  after  the 
service  of  the  abstract  as  required  by  Rule  6  of  this  court  (85  Or.  587, 503),  Is  ground 
for  dismissing  the  appeal,  and  such  an  order  will  be  entered  in  this  case. 

Carter  y.  ITaJkemofi,  212. 
Excessive  Damages  as  Ground  for  New  Trial. 

10.  The  refusal  of  the  trial  court  to  set  aside  a  verdict  and  grant  a  new  trial 
because  the  damages  allowed  were  excessive  is  not  reviewable. 

8oren»on  v.  Oregon  Power  Oo,^  24. 


Index.  647 

QrKSTioN  Presented  for  Review. 

11.  Where  a  case  Is  tried  to  the  coart  alone,  and  there  Is  no  conflict  In  the  tes- 
timony, but  In  consequence  of  a  misapplication  of  the  law  an  error  is  committed 
in  the  findings  of  fact,  an  exception  to  such  conclusion  and  a  request  for  other 
findinfTS  will  bring  up  for  review  the  action  of  the  court  In  denying  the  applica- 
tion. McOung  v.  McPherton,  73. 

Presumption  in  Absence  of  Testimony. 

12.  Where  the  bill  of  exceptions  does  not  purport  to  contain  all  the  testimony 
given  at  the  trial,  and  the  court  does  not  certify  that  all  such  testimony  Is  Incor- 
porated In  the  transcript,  it  will  be  presumed  on  appeal  that  the  evidence  was 
sufficient  to  support  the  findings. 

Auaplund  v.  y£IEna  Indemnity  Cb.,  10;  McKinnon  v.  Higgint^  45. 
Idem. 

13.  A  bill  of  exceptions  does  not  negative  the  fact  that  defendant  may  have 
introduced  testimony  on  which  the  findings  for  plaintiff  «kre  based,  where,  after 
a  recital  that  the  foregoing  was  all  the  testimony  offered  by  plaintiff,  and  there- 
upon defendant  moved  for  an  order  of  nonsuit,  which  was  denied,  it  recites  that 
"at  the  close  of  the  case,  no  more  testimony  having  been  introduced  on  behalf 
of  plaintiff,"  defendant  moved  for  findings  and  Judgment  in  its  fovor,  which  was 
denied.  Auaplund  v.  JStna  Indemnity  Co.  10. 

Effect  of  Findings  by  Court. 

14.  Under  Section  159,  B.  &  C.  Comp.,  providing  that  in  a  trial  by  the  court 
without  a  Jury  the  findings  of  fact  shall  be  deemed  a  verdict,  such  findings  can- 
not be  set  aside  on  appeal  If  there  is  any  evidence  to  support  them. 

McClung  v.  McPheraon^  73;  Miles  v.  8wan»<m^  218;  Flegel  v.  Ko9»^  866. 
Idem. 

15.  Where  a  case  Is  tried  without  a  Jury,  the  court's  findings  of  fact  are  like  a 
special  verdict,  and  will  be  disturbed  on  appeal  only  when  the  evidence  is  insuf- 
ficient as  a  matter  of  law  to  support  the  conclusions  of  fact. 

McClung  v.  McPheraon,  73. 
Review  of  Findings  in  Absence  of  Evidence. 

16.  Where  no  bill  of  exceptions  Ik  in  the  record,  and  the  evidence  is  not  brought 
before  the  supreme  court,  any  error  in  the  findings  of  fact  is  not  subject  to  review. 

Miles  V.  Swanaon,  213. 
Curing  Error  by  Subsequent  Admission. 

17.  Error  In  the  admission  of  testimony  Is  cured  by  a  subsequent  admission  of 
the  truth  of  the  same  matter  by  the  party  against  whom  It  was  offered. 

State  w.S/nilh,A^, 
Right  to  Modify  and  Affirm  Judgment  at  Law. 

18.  In  a  law  action  the  supreme  court  may  modify  a  Judgment  when  the  excess 
is  apparent  and  ascertainable  from  the  record,  and  affirm  the  Judgment  as  mod- 
ified. 8orenaon  v.  Oregon  Power  Oo.  24. 

SPECiAii  Direction  on  Reversing  .Iudgment. 

19.  When  the  trial  court  sitting  as  a  Jury  has  erred  in  the  law,  and  thcfaots  are 
undisputed,  the  Judgment  may  be  reversed  with  special  directions  as  to  the  pro- 
ceedings, rather  than  to  hold  a  new  trial.  McClung  v.  McPherson,  73 

RECALI.INO  Mandate  Issued  on  Mistake  of  Fact. 

20.  Where  appellant's  counsel  was  led  to  sign  a  stipulation  for  the  dismissal  of 
an  appeal  as  to  one  of  the  parties  on  the  latter's  false  statement  that  he  had  settled 
all  matters  with  appellant,  such  stipulation  was  based  on  a  mistake  of  fact,  en- 
titling appellant  to  repudiate  the  same  and  obtain  a  recall  of  the  mandate  dis- 
missing the  appeal.  Livesley  v.  JohnstOHf  194. 


648  Index. 

Rendering  Additional  Judgment  Against  Sureties  for  DrsBUBSE- 
MENTs  Incurred  After  the  Appeal. 

21.  Where  an  attaclimeiit  was  Hued  out  In  aid  of  an  action,  and  subsequent  to 
Judgment  an  execution  vfhh  Issued,  and  a  Bale  of  the  attached  property  was 
adjourned  from  time  to  time,  causing  the  Incurrence  of  expenses  and  dlBbunse- 
ments  In  a  stipulated  amount,  before  the  taking  of  an  appeal  by  defendant,  which 
would  have  been  collected  except  for  such  appeal  and  consequent  stay  of  execu- 
tion, plalntiflT,  upon  procuring  an  affirmance  of  the  Judgment,  Is  entitled  to  an 
additional  Judgment  against  defendant  and  his  sureties  for  the  amount  of  the 
stipulated  expenses  so  incurred.  Mee  v.  Bowden  Mining  Oa.  H7. 

See,  also.  Costs,  2;  Land,  a  Ten.  6,  7;  Munic.  Corp.  20. 

APPLIANCES. 

Responsibility  for  Selection  of.    See  Master  a  Servant,  4, 5. 

ARBITRATION  AND  AWARD. 

Impeachment  of  Award  in  Action  Thereon  for  Misconduct  of  Arbitrators. 
See  Action. 

Impeachment  of  Award  for  Misconduct  of  Arbitrator.s. 

A  party  claiming  to  be  injured  In  an  award  through  the  misconduct  of  the 
arbitrators  may  maintain  a  suit  In  equity  to  set  aside  the  award ;  but  In  Oregon 
the  defense  of  misconduct  Is  not  available  In  a  law  action  on  the  award,  since  in 
this  State  the  distinction  between  law  and  equity  Is  sUil  retained. 

Oohn  V.  Wemme^  146. 
ARSON. 

Evidence  —  Remoteness. 

1.  In  a  prosecution  for  arson.  In  ^hlch  the  State  claimed  that  defendant  at- 
tempted to  burn  the  building  by  saturating  a  part  of  it  with  kerosene,  testimony 
that  three  or  four  days  after  the  fire,  witness  picked  up  some  of  the  earth  under, 
the  buildlnif,  and  that  It  smelled  as  if  kerosene  bad  been  poured  over  it,  was  n<it 
objectionable  as  too  remote.  8iate  v.  WatMnj  544. 

Evidence  of  Ownership  of  Building. 

2.  Where,  in  a  prosecution  for  arson,  the  ownership  of  the  building  was  laid 
In  a  person  alleged  to  have  been  a  subtenant  under  defendant,  a  reoetpt  far  rent, 
signed  by  defendant,  was  competent  on  the  question  of  ownership. 

Slate. V.  WaUon,  51.9. 
Attempt  to  Commit  as  a  Crime.    See  Criminal  Law,  1. 

ASSESSMENT. 

Certificate  to  Roll— Abbreviating  Names  — Repeating  Names  —Sufficiency  of 
Description.    See  Taxation. 

ASSUAlPTION. 

Risk  of  Employment  —  Immature  Servant.    See  Master  and  Servant,  T. 
Exposed  Cogs  and  Gearlngan  Assumed  Risk.  See  Master  andSbrvant,  10. 
Known  Danger  is  Always  an  Assumed  Risk  by  Stranger.  See  Negligence,  3. 

ATTACHMENTS. 

Inchoate  Right  as  "Property"  Under  the  Statute. 

1.  "Is  thelnchoHterlghtof  survivorshlpof  a  tenant  by  the  entirety  such  ••prop- 
erty" as  can  be  levied  upon  and  sold  under  Section  29(1,  B.  <&  C.  Uomp.? 

Oliver  v.  Wright,  822. 

Lien  of  Attaching  Creditor  — Pleading  Levy  in  Good  Faith  and 
Without  Notice  of  Equities. 

2.  Under  Section  802  of  B.  &  C.  Comp.,  providing  that  from  the  date  of  the 
attachment  until  it  bo  discharged  or  the  writ  executed,  the  plaintiff;  as  agaln.st 
third  persons,  shall  be  deemed  a  purchaser  in  good  faith  and  for  a  valuable  con* 


Index.  649 

slderatlon  of  the  property,  etc.,  an  attaching  creditor,  in  order  to  be  deemed  a 
purchaser  In  Kood  faith  as  against  the  owner  of  an  outstanding  equity,  must 
allege  and  prove  all  the  facts  necessary  to  establish  that  character  of  his  owner- 
ship as  against  the  equity  :  and  a  reply  consisting  of  only  a  general  denial  of  the 
claim  of  ownership  made  by  defendants  In  their  answer  Is  insufflclent  to  bring 
plaintiff  within  the  statute.  Flegel  v  Koaa,  86(i. 

Evidence  Competent  to  Issues. 

8.  In  attachment,  on  the  issue  whether  the  attachment  debtor  owned  the 
property  attached  or  had  bought  the  same  as  agent  only,  not  having  sufficient 
means  with  which  to  purchase  for  himself,  evidence  as  to  his  financial  condition, 
both  on  the  day  of  purchase  and  prior  thereto,  is  admissible.    FUgel  v.  JTmx,  366. 

See.  also.  Merger. 
ATTEMPT  To  Commit  a  Crime  as  a  Crime.    See  Criminal  Law,  1. 

ATTORNEY  AND  CLIENT. 

Payment  Under  Superior  Title. 

An  agent  or  attorney  having  authority  to  tsollect  and  remit  money  is  not 
estopped  by  his  agency  from  showing  that  the  money  did  not  belong  to  the  prin- 
cipal and  that  he  has  paid  it  to  a  claimant  under  a  paramount  title. 

MotH  MercanHle  Oo,  v.  Firat  Nat.  Bank,  3«1. 

Allowance  of  Fee  on  Note.    See  Bills  a  Notes,  0. 

BAIL. 

Bail  in  Civil  Action  — Return  of  Writ  of  arrest. 

1.  A  writ  of  arrest  having  issued,  and  the  defendant  having  given  ball  while  in 
custody  on  such  writ,  the  validity  of  the  bail  bond  is  noi  affected  by  the  failure  of 
the  sheriflT  to  return  the  writ  until  after  the  entry  of  Judgment. 

Banning  v.  Ropf  110. 

Bail  in  Civil  Action  —  Presence  and  Absence  of  Defendant. 

2.  The  condition  of  a  civil  bail  bond  being  that  defendant  would  at  all  limes 
be  amenable  to  the  process  of  the  court,  the  fact  that  he  was  about  the  court  room 
during  the  term  at  which  the  case  was  tried,  is  no  defense  to  an  action  on  the 
bond,  where  he  could  not  subsequently  be  found  to  answer  to  an  execution 
against  his  person  following  the  giving  of  the  bond.  Banning  v.  Boj/t  119. 

Sufficiency  of  Complaint  on  Which  Bond  Was  Given. 

8.  In  an  action  on  a  civil  bail  bond,  the  sufficiency  of  the  complaint  on  which 
the  bond  Is  based  is  conclusively  established  by  the  entry  of  a  Judgment  thereon. 

Banning  v.  Roy.  119. 
BANKS  AND  BANKING. 

Duty  of  Inquiry  as  to  Right  to  Certify  Checks. 

1.  Where  an  officer  or  employee  of  a  bank  draws  or  certifies  commercial  pa- 
per whereby  the  funds  of  such  bank  are  to  be  used  for  his  own  benefit,  the  person 
receiving  it  Is  bound  to  inquire  further  as  to  the  authority  for  so  doing  before 
relying  on  such  act.  Slate  v.  Miller,  6«2. 

Right  to  Deposit  not  Claimed. 

2.  In  an  action  to  recover  specific  deposits  in  a  bank,  where  the  court  finds 
that  the  deposits  sued  on  have  been  paid,  but  that  the  bank  owes  the  plaintiff  a 
certain  sum  on  other  deposits,  the  plaintiff  is  not  entitled  to  recover  Judgment 
for  the  amount  due  him,  as  he  made  no  claim  to  that  money. 

Boothe  V.  Farmers*  Natl.  Bank,  299. 
BILL  OF  EXCEPTIONS. 

Presumption  From  Absence  of  Part  of  Testimony.    See  Appeal,  17. 
Necessity  of  Including  Instructions  of  Court.    See  Appeal,  6,  7. 


650  Index. 

BILLS  AND  NOTES. 

Absence  of  Note  as  Notice  to  Purchaser. 

L  A  purchaser  of  a  lost  note  and  mortgage  is  put  on  Inquiry  as  to  the  true 
ownership  by  the  absence  of  the  instruments,  and  buys  at  his  peril,  unless  he 
may  rely  absolutely  on  the  record,  regardless  of  his  personal  knowledge. 

Barringer  v.  Loder,  223. 

Title  of  Purchaser  of  Lost  Negotiable  Paper. 

2.  A  purchaser  of  a  lost  negotiable  Instrument  before  maturity  talces  In  sub- 
ordination to  any  previous  indorsee  In  good  faith.  Barringer  v.  Loder,  22$. 

Presumption  of  Consideration. 

8.  The  presumption  of  the  statute  (B.  &  C.  Comp.  §  788,  subd.  21),  that  a  prom- 
issory note  was  given  for  a  sulflcient  consideration,  is  of  much  importance  in 
business  transactions,  and  should  not  be  lightly  regarded  in  favor  of  those  who 
have  carelessly,  or  by  being  unduly  confiding,  set  afloat  commercial  paper. 

Laaacu  v.  McCarly,  474. 

Consideration  for  Purchase— Bona  Fides. 

4.  Where,  at  the  time  a  note  for  $1,500,  secured  by  a  second  mortgage  on  cer- 
tain real  estate,  was  executed,  the  property  was  subject  to  a  first  mortgage  for 
$i,500,  and  at  the  time  plaintiff  purchased  tlie  note  and  mortgage  It  did  not  ap- 
pear that  the  prior  mortgage  had  been  discharged,  the  fact  that  plaintiff  pur- 
chased such  second  note  and  mortgage  for  $1,000,  without  knowledge  of  any  fact 
that  would  tend  to  render  the  note  Invalid,  did  not  deprive  him  of  the  right  to 
enforce  the  note  and  mortgage  as  an  innocent  purchaser  for  value. 

Lcuttas  V  McOartyy  474. 

Amount  of  Recovery  Allowed  Bona  Fide  Holder  of  Promissory 
Note  Obtained  From  Maker  by  Fraud. 

5.  Under  Section  4459,  B.  &  C.Comp.,  providing  that  the  holder  of  a  negotiable 
Instrument  in  due  course  may  enforce  payment  for  the  full  amount  thereof 
against  all  parties  liable  thereon,  a  bona  fide  purchaser  of  a  note  and  mortgage 
Is  not  limited  to  a  recovery  of  the  amount  paid  therefor,  but  is  entitled  to  enforce 
the  same  for  the  full  amount  due  thereon,  even  though  the  execution  of  the  note 
was  Induced  by  fraud  and  it  was  bought  at  a  heavy  discount. 

LoMoa  V.  MeOarty,  474. 

Attorney's  Fee  in  Note  —  Question  on  Evidence. 

6.  The  amount  to  be  allowed  under  the  terms  of  a  note  providing  for  a  reason- 
able attorney's  fee  in  case  of  suit  or  action  thereon  must  be  determined  by  evi- 
dence, in  case  of  dispute,  and  unless  there  is  evidence,  only  the  statutory'  fee 
should  be  allowed.  Ltusas  v.  Mccarty^  474. 

BODY  EXECUTION.    See  Execution. 

BONA  FIDES. 

Reasonable  Value  for  Note  and  Mortgage.    See  Bills  a  Notes,  4. 

Amount  of  Recovery  Allowed  Bona  Fide  Holder  of  Negotiable  Paper  Ob- 
tained From  Maker  by  Fraud.    See  Bills  <&  Notes,  5. 

BOUNDARIES. 

Relative  Importance  of  Cali^  in  Surveys. 

1.  Calls  in  a  survey  for  natural  objects  or  marked  lines  and  corners  prevail 
over  calls  for  courses  and  distances,  if  the  calls  of  the  former  character  are 
clearly  established ;  but  if  the  evidence  leads  to  the  conclusion  that  the  mistake 
is  In  the  calls  for  natural  or  artificial  objects,  and  not  in  those  for  courses  and 
distances,  the  rule  is  the  reverse.  ChrUtenson  v.  Simmons,  184. 


Index.  651 

Estoppel  by  Participation  in  Location. 

2.  Where  a  highway  as  laid  out  divided  two  tracts  of  land,  and  plaintiff' 
assisted  the  owner  of  one  of  them  In  locating  his  fence  along  the  highway,  and 
^worked  the  road  on  one  or  two  o<SoasionSf  and  plaintiff  at  such  times  bad  a  con- 
tract for  the  purchase  of  the  other  tract,  but  it  was  surrendered,  and  he  did  not 
purchase  It  until  after  such  location  and  workiut;,  he  was  not  estopped  to  insist 
that  the  fence  in  question  was  in  the  highway.  Chriatenxon  v.  Simmons,  184. 

BRIEFS. 

Effect  of  Unexcused  Delay  in  Filing.    See  Rules  of  Court. 

BUILDING  AND   LOAN  ASSOCIATIONS. 

Complaint  in  Suit  for  Cancellation  of  Mortgage. 

A  complaint  in  a  suit  to  cancel  a  mortgage  for  usury,  on  the  theory  that 
the  mortgagee  was  a  building  and  loan  association,  which  shows  merely  that 
defendant  is  a  corporation,  that  plaintiff  executed  and  delivered  to  It  a  certain 
mortgage  by  which  he  promised  to  pay  it  a  specified  sum  with  Interest  at  a  given 
rate  and  a  monthly  premium,  the  two  amounting  to  more  than  the  highest  legal 
Interest,  with  certain  dues  on  sundry  shares  in  said  association,  is  not  sufficient, 
since  it  does  not  thereby  appear  that  the  defendant  is  a  building  and  loan 
association  at  all,  or  an  organization  having^an  unlawful  plan  ot  operation,  or 
that  plaintiff  owned  the  stock  on  which  he  paid  monthly  ai^sessments,  thus 
not  showing  any  Intent  or  conduct  in  violation  of  the  Interest  laws. 

Darr  v.  Ouaranty  Loan  Assoc.  88. 
BUILDING  CONTRACT. 

Changing  and  Substituting  is  not  an  Abandonment.    See  Contracts,  4. 

CARRIERS. 

Effect  of  Act  of  1905  on  Ticket  Brokerage. 

1.  Sections  1,  2, 8  and  4  of  the  act  of  1905  relating  to  sales  ot  railroad  tickets 
(Laws  1905,  pp.  422,428),  requiring  railroad  owners  to  provide  their  authorized  ticket 
agents  with  a  certificate  of  authority,  and  making  it  unlawful  for  a  person  not  pos- 
sessed of  such  a  certificate'  from  railroad  owners  to  sell  tickets  or  operate  a  ticket 
ofldce,  prohibits  the  ticket  brokerage  business,  and  restricts  the  sale  of  railroad 
tickets  by  others  than  duly  constituted  agents  of  the  railroad  owners  Issuing  the 
same.  Slate  v.  Thompson,  492. 

Prohibition  of  Ticket  Scalping  Not  Interstate  Regulation. 

2.  The  act  of  1905  relating  to  sales  of  railroad  tickets  Is  not  in  conflict  with 
Const.  U.  S  ,  Art  I,  §  8,  concerning  interstate  commerce,  because  It  refers  to  sales 
of  tickets  to  be  used  without,  as  well  as  within,  this  State ;  nor  Is  It  an  unreason- 
able regulation  of  trafilc.  State  v.  Thompson,  492. 

See,  also,  Constitutional  Law,  5-0. 

CASES   IN   THE   OREGON   REPORTS    Approved,  aied,  Distinguished  and 
Overruled  in  this  Volume.   Same  as  Oregon  Cases. 

CATTLE. 

Constitutionality  of  Law  Taxing  Migratory  Herds.    See  Taxation,  1. 

CERTIFICATION. 

Right  of  Bank  Ofilcer  to  Certify  Checks.    See  State  v.  Miller,  562. 

CERTIORARI.    Same  as  Writ  of  Review. 

CHARGING  JURY. 

Charge  Should  Cover  Only  Relevant  Matters.    See  Trial,  9, 11. 
Charge  Should  Not  Emphasize  Special  Points.    See  Trial,  12. 
As  to  Charge  on  Collateral  Issues— Requests.    See  Trial,  4. 
Refusing  Instructions  Already  Given.    See  Trial,  10. 


€52  Index. 

<?HARTERS  OF  CITIES. 

Forest  Grove,  1895,  Article  VI,  I     7,  CI.  7.    p.  449. 
Independence,  L903, 
Halem,  lOOa, 

Portland,  1908, 


'i   28, 

p.  233. 

8    16, 

p.  219. 

8  375, 

pp.  1,  2,  3,  4 

8  400, 

pp.  103, 108. 

2  401, 

pp.  103,  108. 

im 

p.  115. 

Hee  Shipping. 

CHARTER  PARTIES. 
CHATTEL  MORTGAGES. 

ACTION   FOR  CONVERaiON  BY  MORTGAGEE  —ANSWER  IN  MITIGATION. 

1.  A  mortgagee,  sued  for  theconversloo  of  tbechattels  mortgaged  because  of  his 
Irregularly  foreclosing  the  mortgage  in  good  faith,  the  property  having  been  bouglit 
by  another,  cannot  Invoke  the  rule  that  the  mortgagor's  measure  of  damages  is 
the  difference  between  the  val  ue  of  the  chattels  and  the  amount  of  the  debt,  u  nless 
he  pleads  the  amount  due  In  mitigation  of  damages,  since  the  defense  in  mitiga- 
tion Is  in  effect  a  plea  in  oonfcs.slon  and  avoidance,  which,  in  order  to  be  available, 
must  be  specially  pleaded,  under  B.  &  C.  Comp.  §  73,  declaring  that  aji  answer  shall 
■contain  a  denial  of  each  allegation  of  the  complaint  controverted  by  defendant 
■and  a  statement  of  new  matter  constituting  a  defense.       Springer  v.  Jenkins,  502. 

Idem— Insufficient  Plea  of  Mitigation  of  Damages. 

2.  The  answer  of  a  mortgagee  sued  for  conversion  of  the  chattels  mortgaged,  1  n 
-consequence  of  his  Irregularly  foreclosing  the  mortgage,  which  does  not  shower 
that  he  was  the  owner  of  the  mortgage  debt  at  the  time  of  the  alleged  conversion, 
that  any  part  of  the  debt  was  unpaid,  and  that  the  chattels  sold  under  the  fores 
closure  sale  were  those  described  In  the  complaint,  is  insufllclent  as  an  answer  in 
mitigation,  so  as  to  reduce  the  mortgagor's  recovery  to  the  diflbrence  t>etween  the 
value  of  the  chattels  and  the  amount  of  the  debt.  Springer  v.  Jenkina,  502. 

CHECKS. 

As  to  Certifying  by  Bank  Officers.    Bee  Slate  v.  Miller,  562. 

CIRCUMSTANTIAL  EVIDENCE. 

ConvicUon  on  if  Satisfactory  to  Jury.    See  State  v.  Barnes,  502. 

CITIES.    Same  as  Municipal  Corporations. 

CITY  CHARTERS.    Same  as  CHARTERS  OF  CITIES. 

CITY  ORDINANCES.    Same  as  Ordinances  OF  Cities. 

CIVIL  RIGHTS. 

Complaint  in  Damage  Action  by  Negro  for  Refusal  to  Honor  Theatre  Tickets 
—  Rejecting  Allegations  as  to  Color  as  Surplusage.    See  Theatres,  1,  2. 

CLAIM  AND  DELIVERY.    Same  as  Replevin. 

CLASS  LEGISLATION. 

Special  Privileges  —  Equal  Protection  of  Laws.   See  Const.  Law,  7. 

CODE  CITATIONS.    Same  as  Statutes  of  Oregon. 

COLLATERAL  ATTACK. 

Jurisdiction  as  Vulnerable  Point.    See  Judgment,  3,  4. 

COLLATERAL  UNDERTAKING.    See  STATUTE  OF  FRAUDS. 

COMMENCEMENT  OF  ACTION.    Same  as  Limitation  of  Actions. 

COMMERCE. 

Sales  of  Railroad  Tickets  Not  Interstate  Commerce.    See  Carriers,  2. 


Index.  655 

COMMERCIAL  PAPER.    Same  as  Bills  a  Notes. 

COMPETENCY. 

Distinction  Between  Objection  to  the  Competency  of  a  Question  and  the  Com> 
petency  of  the  Witness.    See  Witnesses,  2. 

COMPROMISE  AND  SETTLEMENT. 

SUPFICIEKCY  OF  CONSIDE&ATION. 

1.  A  settlemeat  of  claims  or  demands  urged  in  good  fiEilth,  even  though  of 
doubtful  validity*  Is  made  on  a  sufficient  consideration.      Dickey  v.  Jacknon^  331. 

DUKESS. 

2.  The  evidence  here  is  convincing  that  the  compromise  and  settlement  in 
QuesUon  was  made  voluntarily  and  not  under  duress.         Dickey  v.  Jackson^  53U 

CONCLUSIONS. 

Not  Proper  —  May  be  Stricken  Out  on  Motion.    See  Pleading,  4,  5. 

CONJUNCTIVE  CHARGE  of  Crime.    See  Indictment  a  Information,  2. 

CONSIDERATION. 

Promissory  Note— Presumption  of  Consideration.   See  Bills  a  Notes,  3. 

CONSPIRACY.    Evidence  RelaUng  to.    See  Criminal  Law,  4-8. 

CONSTITUTIONAL  LAW. 

Effect  of  Practical  Construction  of  Constitution. 

1.  A  legislative  construction  of  a  constitutional  provision  which  has  been 
accepted  by  both  the  public  and  the  officers  of  the  law  for  many  years  without 
dispute  is  a  strong  argument  in  fkvorof  the  validity  of  an  enactment  showing 
such  construction,  but  it  cannot  prevail  against  the  clear  terms  of  the  constitu- 
tion Itself.  Wallace  v.  Board  of  Equalization^  584. 

Elections  — Constitutional  Right  to  Vote— Restrictions. 

2.  Every  person  possessing  the  qualiflcatlons  of  an  elector  as  prescribed  by 
the  constitution  of  the  State  in  which  he  lives  is  entitled  to  vote  at  all  elections 
provided  by  such  constitution  and  by  laws  authorized  thereby,  and  the  Iegls> 
lature  cannot  change  such  qualifications  in  any  degree  unless  authority  so  to  do 
is  conferred  by  the  constitution.  Livesley  v.  Litchfield,  248. 

Constitution  —  Municipal  Restriction  on  Right  to  Vote. 

8.  Section  2  of  Article  XI  of  Constitution  of  Oregon,  authorizing  the  formation 
of  municipal  corporations  by  special  laws,  which  may  be  altered,  amended  or 
repealed,  and  Section  7  of  Article  VI,  authorizing  the  election  of  city  officers  "in 
such  mander  as  may  be  prescribed  by  law,"  do  not  confer  on  the  legislature 
power  to  prescribe  the  qualifications  of  voters  at  municipal  elections,  the  word 
"manner"  in  said  Section  7  meaning  the  mode  or  particular  way  of  conducting 
the  election.  Livesley  ^.  Litchfield,  218. 

Curative  Statutes  —  Retroactive  Operation. 

4.  The  legislature  may,  unless  prohibited  by  the  constitution,  retrospectively 
validate  or  legalize  Judicial  or  execution  sales,  although  the  defects  or  irregulari- 
ties therein  are  such  as  to  render  such  sales  inoperative,  provided  it  does  not 
undertake  to  infuse  life  into  proceedings  utterly  void  for  want  of  Jurisdiction. 

Puller  V.  Hager,  2i2, 

Ticket  Scalping  —  Due  Process  of  Law. 

6.  The  act  of  1905  concerning  sales  of  railroad  tickets  (Laws  1905,  pp.  422,  423)  „ 
does  not  permit  any  one  to  be  deprived  of  property  without  due  process  of  law, 
as  guaranteed  by  Const.  U.  S.  Amend.  XIV,  g  1,  nordeprlveany  one  of  remedy  by 
due  course  of  law  for  injury  done  him  \n  property,  as  guaranteed  by  Const.  Or. 
Art.  I,  2  10,  but  is  a  reasonable  regulation  of  the  use  of  a  certain  kind  of  property. 

State  V.  Thompson^  492. 


654  Index. 

TiCKKT  SCALPING  — Obligation  of  Contracts  — Ex  Post  Facto  Law. 

6.  Nor  does  that  act  Impair  the  obligation  of  any  contract,  as  prohibited  by 
Const.  Or.  Art.  I,  g  21,  since  It  applies  only  to  contracts  made  after  It  went  into 
effect,  and,  bein^  prospective  In  Its  operation,  Is  not  ex  post  fkcto. 

SUUe  V.  Thompson^  492. 
Ticket  Scalping  —  Special  Privileges  —  Equal  Protection  Laws. 

7.  Nor  does  that  act  authorize  the  a'brldgment  of  any  privilege  of  any  citizen, 
as  guaranteed  bj'  CouHt.  U.  B.  Amend.  XI V^,  1 1,  nor  does  it  grant  to  any  citizen  or 
class  of  citizens  special  privileges,  as  prohibited  by  Const.  Or.  Art.  I,  i  20. 

State  V.  Thampwn,  492. 
Ticket  Scalping  —  Constitutional  Exercise  of  Police  Power. 

8.  Nor  is  it  an  unconstitutional  prohibition  of  a.lawfhl  calling,  but  rather  a 
lawful  exercise  of  the  police  power  of  the  State,  enacted  In  order  to  protect  trav- 
elers from  fraud.  State  v.  Thcmpeon,  482. 

Constitutional  Right  to  Scalp  Railroad  Tickets. 

9.  The  right  to  deal  in  railroad  tickets  is  not  one  of  the  fundamental  rights  of 
American  citizenship  guaranteed  by  Section  1  of  the  Fourteenth  Amendment  to 
the  Constitution  of  the  United  States.  State  v.  7*Aomp<on,  492. 

See,  also,  Elections,  Munic.  Corp.  1,  and  Taxation  1, 2. 

CONSTITUTION  OF  OREGON. 

Article  I,  i  10,  pp.  108, 106,  492,  497. 

g  18,  pp.  103, 106. 

^  20,  pp.  493,  498. 

I  21,  pp.  493,  497. 

g  82,  pp.  ISO,  141. 
ArUcle  II,  g    2,  pp.  248,  252. 

Article  VI,  g    7,  pp.  248,  252. 

ArUcle       VII,  g    9,  pp.  103, 108. 
Article         ix,  g    1.  pp.  136, 140, 142, 585, 501. 
Article         XI,  g    2,    p.  248. 

g    9,  pp.  106, 118. 
Article  XVIII,  g    7,  pp.  588, 600. 
CONSTITUTION  OF  THE  UNITED  STATES. 
Article  I,  g        8,496, 409. 

Amendment  XIV,  g  1, 108, 108,  492,  498,  497. 

CONSTRUCTIVE  FRAUD.   See  Fraudulent  Conveyances. 

CONTEMPORANEOUS  CONSTRUCTION.    See  Constitutional  Law,  1. 

CONTRACTS. 

Validity  of  Unreasonable  Contract  Limitations. 

1.  A  building  contract  bound  the  contractor  to  pay  for  all  labor  and  materials 
promptly,  so  that  no  liens  should  be  filed  against  the  property  on  account  thereof, 
and  further  provided  that  any  suit  brought  thereon  should  be  instituted  within 
six  months  after  a  breach  of  the  contract.  Liens  were  filed  against  the  property 
the  amount  of  which  could  not  be  determined  until  they  were  foreclosed,  which 
could  not  be  done  with  reasonable  promptness  until  more  than  six  months  after 
the  breach.  Heldt  that  the  limitation  period  of  six  months  was,  under  the  cir- 
cumstances, unreasonable  and  inoperative.    Atisplund  v.  ^tna  Iruiemnily  Cb,  10. 

Validity  of  Special  Contract  Limitation. 

2.  The  parties  to  a  contract  may  stipulate  that  an  action  for  its  breach  shall 
be  brought  within  a  certain  period, 'and.  If  the  limitation  so  prescribed  is  reason- 
able. It  will  be  upheld.  Autplund  v.  .tStna  Indemnity  Cb.  10. 


Index.  655 

Waiver  of  Special  Limitation  by  ^ot  Demurring. 

3.  Does  the  requirement  of  Section  08  of  B.  A  C.  Comp.,  that  a  plea  of  limita- 
tion must  be  made  by  demurrer  if  possible,  apply  to  a  limitation  imposed  by  a 
special  contract?  Aiuplund  v.  j^na  Indemnity  Oo.  10. 

Abandonment  op  Building  Contract— Substitution  of  New  Con- 
tract BY  Changes,  Substitutions,  and  Omissions. 

4.  A  buildlnff  contract  providing:  that  alterations  and  additions  may  Jbe 
made  to  the  building  during  the  progress  of  the  work  when  requested  by  the 
owner,  without  afflBctlng  the  valklity  of  the  contract,  the  value  of  the  changes 
to  be  added  to  or  deducted  from  the  contract  price,  Is  not  abandoned,  and  a  new 
contract  substituted  in  Its  place,  merely  because  during  the  work  it  is  mutually 
agreed  that  the  plans  and  speclflcations  shall  be  changed,  and  certain  parts  of 
the  contract  waived.  Oray  v.  Jtmes,  40. 

Plea  of  Express  Rescission  of  Contract —Surplusage. 

5.  An  answer  to  a  claim  of  damages  for  the  breach  of  a  contract  of  sale,  statr 
ing  that  the  parties  mutually  agreed  ''thatsaid  contract  set  out  in  the  complaint 
should  be  annulled,  rescinded  and  held  for  naught,  and  that  a  new  and  different 
contract  should  coverall  the  subject-matter*'  of  the  original  contract  "wherein 
and  whereby  the  plaintiffs  and  defendants  agreed,"  etc.,  states  an  express  rescis- 
sion of  the  first  contract,  and  is  a  plea  in  bar  to  a  recovery  thereon.  Further 
matter  concerning  the  subsequent  dealings  between  the  parties  as  to  part  of  the 
subject  matter  of  the  contracts  is  mere  surplusage.  KeU  v.  Whiiaker  617. 

Conflicting  Instructions  as  to  Meaning  of  Contract. 

6.  In  an  action  on  a  contract,  the  defense  being  a  rescission  and  the  execution 
a  new  agreement,  it  Is  error  to  give  one  instruction  on  the  theory  of  an  express 
rescission  by  agreement  and  another  on  the  theory  of  an  implied  rescission,  as 
the  two  theories  are  directly  confiloting.  Nets  v.  Whitaker,  617. 

CONTRIBUTORY  NEGLIGENCE.  See  Mast,  a  Serv.  8;  Negligence,  1. 

CONVERSION.    See  Chattle  Mortgages,  1,  2;  Ex.  a  Adm.  6,  7. 

CORPORATIONS. 

Corporate  Liability  on  Surety  Bonds. 

1.  Where  a  corporation  has  become  a  surety  its  duties,  rights  and  liabilities 
are  the  same  as  those  of  an  individual.  Auaplund  v.  jEtna  Indemnity  Oo.  10. 

Corporation  Stock  — Dividends— To  Whom  Payable. 

2.  A  corporation  paying  a  dividend  on  stock  to  a  person  appearing  on  Its 
books  as  owner,  after  it  has  received  notice  that  the  stock  has  been  transferred 
to  a  third  person,  is  liable  to  the  third  person  for  the  amount  of  the  dividend, 
though  at  the  time  the  dividend  was  declared  It  had  no  such  notice,  and  though 
the  amount  thereof  was  at  once  passed  to  the  credit  of  the  stockholder  on  its 
books.  Steel  v.  Island  MiUing  Oo.  2U8. 

Debtor  and  Creditor— Payment  After  Warning  — Corporations. 

S.  A  corporation  holding  an  unpaid  dividend  has  the  same  relation  to  its 
stockholders,  or  whoever  else  may  own  the  dividend  claim,  that  any  debtor  has 
to  a  creditor,  and  must  recognize  the  true  owner  of  the  dividend.  If  he  is  known, 
though  a  payment  to  the  apparent  owner  without  notice  of  a  transfer  of  the  claim 
will  protect  the  company.  Steel  v.  Island  Milling  Oo.  293. 

Rules  of  Agency  Apply  to  Corporations. 

4.  The  rule  of  agency  requiring  reasonably  prompt  disavowal  of  the  un- 
authorized acts  of  an  agent  is  applicable  to  corporations  a8  well  as  to  individuals. 

RHd  V.  Alaska  Packing  Oo.  215. 
CORPSE. 

Proof  of  Identity  of.    See  Homicide,  2. 


656  Index. 

CORPUS  DELICTI. 

SafflcieneT  of  Circumstantial  Evidence.    Bee  Uomicidr,  1. 
Necessary  Elements  to  be  Proved.    See  Homicide,  I. 

CORROBORATION. 

Evidence  of  Claim  Again  t  Decedent.  See  Executors  a  Adxikistbatoim,  3. 

COSTS. 

Time  for  Filing  Cost  Bill— Time  to  Object. 

1.  Under  Section  568,  B.  A  C.  Comp.,  as  amended  by  Laws  1908.  pp.  208,  210,  a 
party  entitled  to  costs  and  disbursements  has  until  and  including  the  first  day 
of  the  next  regular  term  following  the  rendition  of  the  Judgment  within  which 
to  file  his  statement,  and  the  opposite  party  has  five  days  from  the  date  of  such 
filing  to  file  objections  thereto,  and  not  five  days  after  the  first  day  of  the  next 
regular  term.  Btuim  v.  Wade^  524. 

Costs  in  Equity  Cases  -  Discretion. 

2.  Under  Section  508,  B.  A  C.  Com  p.,  the  supreme  court  may  assess  the  costs 
and  disbursements  of  both  the  trial  and  the  appeal  to  such  of  the  parties  and  In 
such  proportions  or  amounts  as  discretion  may  suggest. 

Taylor  v.  Taylor ^  47 ;  Pope  v.  Pope,  208 ;  LoMtas  v.  McOarty^  474. 

COURSES  AND  DISTANCES. 

Relative  Importance  of  Distances  and  Monuments.    See  Boundaries,  1. 

COURTS. 

Conferring  Jurisdiction  — Consent  of  Parties. 

1.  Courts  derive  Jurisdiction  over  causes  from  the  same  sources  from  which 
they  derive  their  existence  and  J  urisdlctlon  cannot  be  obtained  elsewhere.  Though 
parties  may  voluntarily  appear  and  thereby  subject  their  persons  to.  the  Jurisdic- 
tion, they  cannot  by  either  waiver  of  process  or  consent  confer  on  any  tribunal 
Jurisdiction  over  the  subject-matter  of  a  proceeding,  as,  for  instance,  over  an  ap- 
peal by  voluntarily  appearing  and  trying  the  questions  Involved. 

Wong  Sing  v.  Independence,  231. 
Appeal  — Recalling  Mandate. 

2.  The  supreme  court  has  power,  at  any  time  during  the  term  at  which  an 
appeal  was  disposed  of,  or  to  which  supplemental  matters  connected  with  the 
appeal  may  have  been  continued,  to  recall  the  mandate  because  inadvertently  or 
inaccurately  Issued.  Uvealey\.JohnMton,\\». 

Effect  of  Undetermined  Matters  on  Jurisdiction. 

8.  A  motion  or  other  proper  suggestion  to  a  court  serves  to  continue  the  Juris- 
diction of  the  court  over  the  matter  referred  to  until  It  is  disposed  of,  though  it  be 
not  until  a  subsequent  term.  Liveslep  v.  JohnMton,  191. 

Special  Direction  on  Reversing  Judgment. 

4.  When  the  trial  court  sitting  as  a  Jury  has  erred  In  the  law,  and  the  facts  are 
undisputed,  the  Judgment  may  be  reversed  with  special  directions  as  to  the  pro- 
ceedings, rather  than  to  hold  a  new  trial.  McClung  v.  McPherMon,  73. 

Power  to  Vacate  Judgment  After  close  of  Term. 

5.  Superior  courts  possess  power  at  all  times,  regardless  of  terms,  to  vacate 
vold  Judgments  and  decrees,  and  they  should  do  so  whenever  attention  Is  called 
to  such  orders.  Huffman  v.  Huffman,  610. 

Interpretation  of  Judicial  Opinions. 

0.  Judicial  opinions  must  always  be  considered  with  reference  to  the  facts  in. 
volved  and  the  points  presented  for  decision.    Oregon  Tran^fer  Co.  v.  Portland,  1. 

Remedy  for  Error  of  Municipal  Court  Where  no  Appeal  is  Provided.    See 
MuNic.  Corp.  20. 


Index.  657 

CRIMINAL  LAW. 

Attempt  to  Commit  Crime  — Overt  Acts. 

1.  The  paying  of  money  to  another  as  compensation  for  his  assistance  In  com- 
muting a  crime,  the  providing  of  means  appropriate  to  the  desired  purpose,  and 
the  giving  of  directions  concerning  the  time  and  manner  of  committing  the 
Clime,  are  acts  that  coustltate  an  attempt  to  commit  the  crime,  under  Section 
2159,  B.  &  C.  Com  p.  Stale  v.  Taylor,  455. 

Motion  to  Strike  Out  Part  of  an  Information. 

2.  In  view  of  Section  1355,  B.  <&  C.  Comp.,  providing  that  the  only  pleadlngg 
by  a  defendant  in  a  criminal  case  shall  be  a  plea  and  a  demurrer,  a  motion  to 
strikeout  part  of  an  information  is  not  a  proper  proceeding  under  the  Oregon 
practice,  State  v.  Conklin,  500. 

Evidence  of  Other  Crime  Than  That  Charged. 

3.  Within  the  rule  concerning  evidence  of  other  offenses  than  the  one  charged, 
it  Is  competent  to  claim,  and  offer  evidence  to  prove,  that  a  defendant  on  trial 
for  homicide  had  been  physically  intimate  with  an  unmarried  daughter  of  the 
deceased  under  the  age  of  consent,  that  she  was  consequently  with  child,  and  that 
deceased  had  threatened  to  prosecute  defendant  for  such  conduct,  and  that  the 
latter  was  engaged  to  marry  another  girl.  This  is  all  competent  to  show  a  motive 
for  the  killing,  proper  precaution  being  taken  to  advise  the  Jury  as  to  the  purpose 
of  the  evidence.  Slate  v.  Martin^  282. 

Conspiracy  — Evidence  of  Acts  and  Words  of  Conspirators. 

4.  Declarations  and  acts  of  every  member  of  a  conspiracy,  said  and  done 
during  the  existence  of  such  conspiracy,  and  In  furtherance  of  Its  purposes,  are 
competent  evidence  against  all  the  conspirators.  State  v.  Ryaitt  388. 

Conspiracy— Order  of  Proof  — Connecting  Evidence. 

5.  It  Is  discretionary  with  the  trial  court  to  admit  evidence  of  acts  or  declara- 
tions of  alleged  conspirators  before  sufflolent  evidence  is  given  of  the  conspiracy ; 
but  the  conspiracy  must  be  shown  to  have  existed  and  the  defendant  must  be 
connected  with  it  by  subsequent  evidence,  or  such  evidence  should  be  withdrawn 
from  the  Jury.  State  v.  Ryan^  338. 

Nature  of  Evidence  of  Conspiracy. 

(5.  Conspiracies  are  usually  established  by  circumstantial  evidence,  as  of  the 
acts  and  statements  of  persons  involved,  and  direct  testimony  is  not  necessary. 

State  V.  Ryan,  838. 
Idem. 

7.  Evidence  of  the  conduct  of  several  alleged  conspirators  at  different  times 
and  places  not  in  the  presence  of  each  other,  is  competent  on  the  question  of  con- 
spiracy, if  the  acts  shown  reasonably  seem  to  tend  to  the  accomplishment  of  a 
common  purpose.  State  v.  Ryan,  338. 

8.  This  case  illustrates  this  rule  of  evidence :  It  appearing  that  defendant  ob- 
tained possession  of  prosecutor's  money  by  acting  as  stakeholder  for  a  pretended 
race  that  was  not  run  ;  that  one  of  the  parties  involved  met  prosecutor  some  days 
before  In  another  city  where  he  explained  the  plan  of  the  proposed  race  and  after- 
ward Introduced  the  prosecutor  to  defendant,  and  that  subsequently  the  stake 
was  forfeited  through  the  absence  of  the  runner  on  whom  prosecutor  had  been 
induced  to  bet,  evidence  of  the  acts  and  declarations  of  the  party  who  first 
brought  the  scheme  to  the  attention  of  the  prosecutor  are  competent  both  to  show 
that  there  was  a  conspiracy  and  to  indicate  its  course  and  extent. 

State  V.  Ryan,  338. 
Remarks  and  Conduct  of  Judge  Before  the  Jury. 

9.  Every  act  and  remark  of  a  trial  fudge  In  the  presence  of  a  Jury  may  appre- 
ciably affect  the  verdict,  and  therefore  it  has  been  held  in  some  courts  that  every 

47  Or. 42 


658  Index. 

remark  of  a  trial  Judge  concerning  the  testimony  in  a  case  on  trial  before  Mm, 
made  In  the  presence  of  the  Jury,  is  to  be  considered  an  instruction. 

8t€U€  V.  Lgm,  52B. 

Provincb  of  JultY— Rexarks  of  Judge. 

10.  A  trial  Judge  may  with  pn  priety  correctly  state  the  testimony  of  a  witness 
where  there  Is  a  confusion  or  dispute  as  to  what  the  testimony  was,  and  in  so 
doing  he  does  not  Invade  the  riicht  of  the  Jury  to  pass  on  all  questions  of  fact,  as 
reserved  by  Section  189,  B.  A  C.  Com  p.  State  v.  Lane,  SOIL 

See  E^scAPE ;  Larceny;  Homicide. 
CRUELTY. 

Violence  Not  Malicious  in  Mnttial  Combat.    See  Divorce.  1. 
Equal  Capacity  in  Use  of  Varied  Vocabulary.    See  Divorce,  2. 

CURATIVE  ACT. 

Validity  3f  Curative  Act  as  to  Void  Sales.    See  Const.  Law,  4. 

CURING  ERROR  in  Admitting  Testimony.    See  Appeal,  1. 

CUSTOM. 

When  Evidence  of  is  Incompetent    See  Master  a  Servant,  4. 

DAMAGES. 

Personal  Injuries— Excessive  Verdict. 

1.  In  an  action  fur  injuries  to  a  common  laborer,  whose  leg  was  crushed  so 
thai  it  had  to  be  amputated  below  the  knee,  a  verdict  for  S15,000,as  reduced  by 
the  trial  court  to  99,460,  is  not  so  excessive  as  to  plainly  show  bias  or  prejudice, 
and  will  not  be  disturbed  on  appeal.  ,    Sorensen  v.  Oregon  Power  Ob.  24. 

Aggravated  Damages  — Particulars  of  Plea. 

2.  When  aggravated  damages  are  claimed  under  a  statute,  the  statute  should 
be  recited  iu  the  com  plaint  or  the  claim  should  be  stated  as  being  made  under  the 
terms  of  the  stat  u  te.  Springer  v.  JenkinSf  502. 

Nature  of  Plea  in  Mitigation. 

3.  The  defense  in  mitigation  is  in  effect  a  plea  in  confession  and  avoidance, 
which,  in  order  to  be  available,  must  be  specially  pleaded,  under  B.  &  C.  Comp. 
§78,  declaring  that  an  answer  shall  contain  a  denial  of  each  allegation  of  the 
complaint  controverted  by  defendant  and  a  statement  of  new  matter  constltutr 
Ing  a  defense.  Springer  v.  Jenkins,  50E2. 

See,  also.  Theatres  a  Shows. 
DANGER. 

Street  of  Knowledge  of—  Assumed  Risk.    See  Negligence,  2, 8. 

DEATH. 

Effect  of  on  Relation  of  Employment.    See  Master  a  Servant,  1. 

DEBTOR  AND  CREDITOR. 

Position  of  Corporation  as  to  Unpaid  Dividends.    See  Corporations.  2, 3. 

DECEDENTS'  ESTATE.    Same  as  Executors  a  Administrators. 

DECLARATIONS  Against  Interest.    How  received.    See  Morgan  v.  Shaw,  336. 

DEED  as  Mortgage.    See  Mortgage,  1,  6. 

DEFAULT. 

Vacating  Judgment  Taken  by  Surprise  or  Inadvertance.    See  Judgment,  1. 

DEFECTIVE  APPLIANCES. 

Selection  of  as  Affecting  Responsibility.    Sec  Master  a  Servant,  3-6. 

DEFINITIONS.    Same  as  Words  A  PURASE.S. 

DEPARTURE.  .  See  Pleading,  13. 


Index.  659 

DILATORY  PLEA.    Waiver  of  by  Answering.    See  Pleading,  14, 15. 

DIMINUTION  OF  RECORD. 

Adding  Copy  of  Oral  Instructions— Bill  of  Exceptions.    See  Appeal,  7. 

DIRECTING  JUDGMENT. 

Ordering  Slated  Judgniftnt  on  Remandment.    See  Appeal,  19. 

DISBURSEMENTS.    Same  as  Costs. 

DISCHARGE. 

Effect  of  Death  on  Relation  of  Employment.    See  Mastek  a  Servant,  1. 

DISCRETION. 

Vacating  Judgment  Taken  by  Inadvertence  or  Surprise.    See  Judgment,  1. 
Apportionment  of  Costs  and  DlHbursements  in  Equity.    See  Costs,  2. 
Changing  Venue -Conclusiveness  of  Showing.    See  Venue. 

DISJUNCTIVE  CHARGE  of  Crime.    See  Indictment  a  Information,  2. 

DISMISSING  APPEAL. 

When  No  Question  is  Presented  for  Consideration.    See  Appeal,  8. 
Effect  of  Unexcused  Failure  to  File  Brlei  —  Rules.    See  Appeal,  9. 

DISTANCES. 

When  Distances  Control  —  When  Monuments  Control.   See  Boundaries,  1. 

DIVIDENDS. 

Payment  of  After  Notice  of  Transfer  to  Another.    See  Corporations,  2, 3. 

DIVORCE. 

Cruelty— Evidence  of  Violence. 

1.  Where,  in  a  suit  for  divorce  for  cruelty,  the  only  personal  violence  shown 
Is  in  defendant's  attempt  to  hold  plantlff  away  to  prevent  her  from  talcing  forcible  * 
possession  of  their  child,  and  indicates  no  wilful  purpose  or  desire  on  his  part  to 
•do  her  personal  injury,  it  is  not  sufficient  to  sustain  a  decree  in  her  fiivor. 

Mills  V.  MUU,  24tt. 
Cruel  Language  — Equal  Capacity  of  Parties. 

2.  Although  a  husband  and  wife  quarreled  on  various  occasions,  during  which 
lilghly  unbecoming  language  was  used,  It  cannot  be  said  that  either  was  so  cruel 
toward  the  other  as  to  Justify  a  decree  of  divorce  where  it  appears  that  they  were 
•equally  forceful,  ready  and  skillful  in  the  use  of  a  picturesque  and  varied  vocabu- 
lary. MilU  V.  MilU,  246 

Alimony —Amount. 

8.  Where  a  decree  of  divorce  was.granted  on  the  grounds  of  cruelty  and  adul- 
tery by  the  husband,  who  was  the  owner  of  $1,500  worth  of  personal  property  and 
real  estate  worth  SH,000,  and  pending  the  suit  it  was  stipulated  that  the  defendant 
would  pay  9200  for  the  expenses  of  the  suit,  and  $20  a  month  during  its  pendency, 
and  the  final  decree  allowed  plaintiff  $1,000  permanent  alimony,  but  no  monthly 
payments  were  made  after  the  decree  of  the  trial  court,  on  appeal  the  permanent 
alimony  will  be  increased,  so  as  to  add  920  a  month  from  the  date  of  the  decree  in 
the  court  below  till  the  date  of  the  final  decree  on  appeal.  Pape  v.  Pape,  298. 

Origin  of  Right  to  Award  Alimony. 

4.  The  Jurisdiction  of  equity  courts  in  Oregon  to  award  alimony  must  be 
found  in  the  statutes,  the  court  not  having  any  such  Jurisdiction  as  an  Inci- 
dent of  its  control  over  divorces.  Huffman  v.  Huffman,  610. 

Extent  of  Right  to  Grant  Alimony. 

5.  Under  Section  518,  B.  &  C.  Comp.,  equity  courts  may  award  alimony  to 
either  spouse  upon  tl^  dissolution  of  the  marriage  state,  which  Jurisdiction  is 
broader  than  that  of  the  common  law  courts  of  England. 

Huffman  v.  Huffman^  610. 


660  Index. 

What  May  be  Awarded  as  Alimony. 

6.  Section  513,  B.  &  C.  Coin  p.,  authorizes  the  allowance  of  only  money  as 
alimony,  the  power  of  the  court  being  measured  by  the  terms  of  the  statute, 
which  is  In  general  terms.  Huffman  v.  Huffman^  610. 

Idem. 

7.  Under  Boctlon  511,  B.  <&  C.  Comp.,  providing  that  upon  the  dissolution  of 
a  marriage  the  successAil  party  i>hall  be  entitled  to  a  specified  undivided  portion 
of  all  the  real  estate  owned  by  the  other  party,  and  Bectlon  513,  authorizing  the 
granting  to  the  Innocent  party  of  appropriate  alimony,  a  court  has  not  power, 
upon  granting  a  divorce  to  a  wife,  1o  award  her,  in  lieu  of  alimony,  the  possession 
of  land  on  which  the  husband  was  maintaining  a  residence  with  the  Intention  of 
obtaining  title  thereto  trora  the  government.  Huffman  v.  Hvfftnan,  610. 

Custody  op  Children. 

8.  A  divorce  having  been  granted  to  a  husband  on  account  of  the  adultery  of 
the  wife,  the  custody  of  children  not  so  young  as  to  require  a  mothers's  pernonal 
attention  should  be  awarded  to  the  father,  subject  to  such  privilege  of  visitation 
as  may  seem  appropriate.  Mill*  v.  MiUa^  216. 

Allowance  for  Care  of  Children. 

9.  Under  B.  A  C.  Comp.  g  51S,  authorizing  the  court,  In  granting  divorce,  ta 
provide  for  the  future  care  and  custody  of  minor  children,  having  regard  to  their 
age  and  sex,  where  custody  of  two  children,  aged  eleven  and  eight  years,  was 
granted  the  mother,  the  father's  property  being  worth  $75,000,  an  appropriation 
of  $6,500  to  the  mother  for  the  future  care  of  the  children,  together  with  one  half 
the  furniture,  etc.,  was  Justified,  though  the  father  was  given  the  divorce. 

Taylor  v.  Taylor,  47. 
Lien  of  Allowance  in  Divorce  Cask. 

10.  The  amount  allowed  In  a  divorce  decree  to  a  spouse  for  the  care  of  minor 
children  may  be  declared  a  Hen  on  the  real  property  of  the  one  directed  to  pay. 

Taylor  v.  Taylor,  47. 
DUE  PROCESS  OF  LAW. 

Railroad  Ticket  Brokerage  Act.    See  Constitutional  Law,  5. 

DUPLICITY  in  Criminal  Charge. 

Charging  Both  Conjunctively  and  Disjunctively.    See  Indictment,  2. 

ELECTIONS. 

Extent  of  Electoral  Privilege. 

1.  The  qualifications  for  voting  in  Oregon  defined  by  Const.  Or.  Art«  II,  I  2» 
apply  to  voters  at  all  elections  in  this  State,  unless  some  exceptions  can  be  Justi- 
fied by  the  constitution  itself  or  by  some  legislative  act  not  thereby  prohibited. 

Live$ley  v.  Litchfield,  248. 
Salem  Charter  —  Restriction  on  Right  to  Vote. 

2.  The  provision  of  Salem  charter  (Sp.  Laws  1908,  pp.  887, 851, 1 15),  prohibiting 
any  person  from  voting  at  any  election  of  said  city  who  has  not  paid  a  road  poll 
tax  for  the  year  In  which  he  ofiflers  to  vote,  unless  exempt  as  otherwise  in  said 
charter  provided,  Is  void  as  in  conflict  with  Const.  Or.  Art.  II,  I  2,  prescribing  the 
qualifications  of  electors  at  all  elections  not  otherwise  provided  for  by  said  con- 
stitution. lAvesley  v.  Litchfield,  24H. 

ELECTRICITY. 

Care  Required  in  Transmitting. 

1.  Those  engaged  In  making  or  transmitting  electricity  in  large  quantities  or 
at  high  voltage  are  bound  to  exercise  care  commensurate  wl  h  the  danger  la 
placing  and  protecting  the  Instrumentalities  used  for  thosq  purposes. 

Carroll  v.  Grande  Ronde  Electric  Co.  424. 


Index.  661 

Evidence  of  Contributory  Neoligence. 

2.  Where  a  person  of  ordinary  Intelligence  and  of  mature  years,  knowing 
that  an  elecirlc  power  wire  had  broken  and  had  been  fastened  to  a  fence,  went 
up  to  see  if  it  was  alive,  after  having  been  warned  to  stay  away,  and  patting  one 
hand  on  the  fence,  pointed  the  other  at  the  wire,  in  consequence  of  which  the 
current  Jumped,  he  was  guilty  of  contributory  negligence,  preventing  a  recovery 
for  the  injury  received. 

Carroll  v.  Grande  Monde  Electric  Oo.  4JJ4. 
EM  BEZZLEMENT. 

Embezzlement  as  a  Form  of  Larceny. 

1.  Embezzlement,  as  defined  by  Section  1805  of  B.  &  C.  Comp.,  Is  a  variety  of 
larceny,  though  not  involving  the  element  of  trespass,  a  breach  of  confidence 
(being  substituted  therefor.  State  v.  Browning^  470. 

Information  for  Embezzlement— Allegation  of  Taking. 

2.  An  information  Intended  to  present  a  charge  of  embezzlement  under  Sec- 
tion isoo,  B.  <&  C.  Comp.,  need  not  show  that  the  defendant  unlawfully  seized  and 
carried  away  the  property  of  the  employer,  though  embezzlement  is  classed  in 
this  State  as  a  form  of  larceny.  8tate  v.  Browning,  470. 

Jurisdiction  of  Justice's  Court  Over  Embezzlement. 

3.  Under  Section  1798  of  B.  &  C.  Comp.,  a  Justice's  court,  or  any  municipal  court, 
"having  the  authority  of  a  Justice  of  the  peace,  as,  the  Municipal  Court  of  the  City 
of  Portland,  has  Jurisdiction  over  any  form  of  larceny,  where  the  value  of  the 
property  taken  does  not  exceed  thirty-five  dollars.  State  v.  Browning^  470. 

EMINENT  DOMAIN. 

Encroachment  by  Municipality,  on  Private  Property. 

A  city  cannot  acquire  title  to  real  property  by  seizing  it  or  committing  a 
permanent  trespass,  as  by  extending  or  widening  a  street  without  proper  pro- 
•ceedlngs  or  sufficient  authority.  Davie  v.  Stlverton,  171. 

ENTIRETY,  Estate  by. 

Effect  of  Deed  to  Husband  and  Wife  Jointly.    See  Husband  a  Wife. 

EQUITY. 

Setting  Off  Judgments  — Remedy  at  Law. 

1.  Equity  must  have  some  further  ground  of  Jurisdiction  than  the  existence  of 
<:ro8s  demands  to  support  a  suit  to  set  off*  opposing  Judgments. 

Whelan  v.  McMahan,  87. 
Setting  Off  —  Insolvency  —  Need  of  Proof. 

2.  Where  insolvency  Is  alleged  as  a  ground  for  the  exercise  by  equity  of  its 
Jurisdiction  to  set  ofiT cross-demands,  the  allegation  is  material,  and  must  be  sus- 
tained by  proof,  In  order  to  entitle  the  applicant  therefor  to  relief. 

Whelan  v.  McMahan,  87. 
Protecting  Possession  of  Settler  on  Unsurveyed  Public  Land. 

3.  The  civil  courts  will  protect  the  possession  of  a  bona  fide  settler  on  unsur- 
veyed public  land  who  is  qualified  as  a  settler  and  intends  to  claim  such  land  as  a 
homestead  under  the  provisions  of  21  Stat.  U.S.  c.80,  g  3,  against  unlawful  intru- 
sion or  Interference.  Huffman  v.  Smyths  678. 

See,  also.  Costs,  2,  and  Injunction,  2, 3. 
ESCAPE. 

Evidence  of  Escape. 

It  is  always  competent  to  show  that  a  defendant  fled  before  arrest,  but  the 
purpose  of  the  flight  Is  to  be  determined  by  the  Jury. 

ataie  V.  Ryan^  838 ;  State  v.  Barnes,  502. 

ESTATES  OF  DECEDENTS.    Same  as  Executors  a  Administrators. 


662  Index. 

ESTOPPEL. 

Payment  Under  Paramount  Title. 

One  having  authority  to  collect  and  remit  money  may  show,  as  against  hl» 
employer,  that  he  has  paid  the  money  to  another  having  a  superior  title. 

Moaa  Mercantile  Q>.  v.  JFHrtt  National  Bank^  361. 

See,  also,  Indictment,  8. 
EVIDENCE. 

Nonexpert  Evidence  of  Mental  Condition. 

1.  The  weight  to  he  attached  to  a  nonexpert  opinion  as  to  the  mental  condi- 
tion of  a  person  whose  capacity  to  contract  is  in  issue  is  a  question  for  the 
determination  of  the  court  or  Jury,  by  considering  whether  or  not  tlie  facta 
testifled  to  by  the  witnesses  as  a  basis  for  their  conclusions  Justify  the  opinions 
expressed.  Latsaa  v.  MeOarty^  474. 

Parol  Evidence— Written  Contract. 

2.  Where  a  mortgagee  of  certain  property  orally  agreed  to  indemnify  a  pur- 
chaser of  a  part  thereof  against  certain  Judgment  liens  in  consideration  of  his 
purchasing  and  paying  the  consideration  to  such  mortgagee,  whereupon  the  pur- 
chaser took  a  deed  from  the  owners,  the  mortgagee  not  being  a  party  thereto, 
but  releasing  his  mortgage  as  to  the  property  purchased,  parol  evidence  of  the 
Indemnity  contract  was  not  objectionable  as  contradicting  the  deed  and  release. 

Peterson  v.  Creasfmy  «9. 
Proceeding.s  of  Municipal  Councils  — Presumption  of  Regularity. 

3.  In  the  absence  of  affirmative  proof  to  the  contrary,  it  will  always  be  pre- 
sumed that  the  proceedings  and  adjournments  of  municipal  deliberative  bodies 
were  regular  and  valid.  Duniwap  v.  Portland,  108. 

Writings  Signed  by  Agent- Need  of  Proving  Authority. 

4.  Where  the  validity  of  a  private  writing,  purporting  to  have  been  signed 
by  an  agent  on  behalf  of  his  principal,  is  challenged,  the  document  is  not  admia- 
slble  in  evidence  without  express  or  implied  proof  of  the  agent's  authority. 

Mc Clung  v.  MePheraon,  73. 
EXCEPTION. 

Pleading  Exception  to  Rule  — EflTect  of  Pleading  Exception.    Following  De- 
nial of  the  Exception.    See  Pleading,  0.  . 
Time  for  Reserving  to  Rulings  of  Court.    See  Appeal,  4. 

EXCESSIVE  DAMAGES. 

Granting  New  Trial  —  Discretion  of  Trial  Judges.    See  Appeal,  10. 
Right  to  Reduce  Verdict  for  Personal  Injuries.    See  New  Trial. 
Example  of  Amount  Not  Excessive.    See  Damages,  1. 

EXCUSABLE  NEGLECT. 

Opening  Default  —  Discretion  —  Showing  Made.    See  JtJDGMENT,  1. 

EXECUTION. 

Liability  of  Equitable  Interest  in  Land  to  Execution. 

1.  In  Oregon  a  mere  equity  in  laud  is  not  subject  to  seizure  and  sale  under 
execution.  Holmes  v.  Wo{/ord,n. 

Idem. 

2.  Where  real  estate  was  con  veyed  to  one  who  advanced  the  entire  consider* 
ation  for  its  purchase,  under  a  contract  to  convey  the  same  to  another,  on  pay- 
ment of  the  consideration  and  interest,  and  such  other  person  never  held  the 
legal  title  to  the  land,  his  equity  therein  was  not  subject  to  levy  and  sale  under 
execution.  Holme*  v.  Wol/ord,  93. 

Nature  of  Right  of  Execution  Purchaser  Before  Deed. 
8.  Under  Section  227  of  B.  &  C.  Comp.,  providing  that  "all  property   •    •   or 
Interest  therein  of  a  Judgment  debtor  shall  be  liable  toan  execution  "  the  interest 


Index.  663 


of  a  purchaser  of  land  at  an  execution  Rale  In  the  property  purchased  between 
the  expiration  of  the  period  for  redemption  and  the  execution  of  a  sherifTH  deed 
Is  a  substantial  legal  estate  subject  to  levy  and  sale.  Pogue  v.  Stmon,  6. 

Effect  of  Conveyances  of  Land  Subject  to  Judgment— Order  of 
Sale  Under  Execution. 

4.  Where  all  the  land  subject  to  a  general  Judgment  Hen  Is  conveyed  by  the 
Judgment  debtor  In  separate  tracts,  and  to  different  persons,  the  Judgment  cred- 
itor, if  he  is  obliged  to  resort  to  an  execution,  m,ust  satisfy  his  Judgment  by  a  sale 
of  the  tracts  conveyed  hi  the  Inverseorder  of  their  alienation.  Oliver'y.  Wright^  322. 

Execution  Against  the  Person >- Requisite  Judgment. 

5.  Under  Section  218,  B.  &.  C.  Comp.,  providing  for  an  execution  against  the 

person  of  a  debtor  under  certain  circumstances,  the  writ  may  be  Iraued  though 

the  Judgment  did  not  recite  the  entry  of  an  order  for  the  arrest,  or  the  issuance 

of  the  writ  of  arrest,  or  direct  an  execution  against  the  person  of  the  defendant. 

Banning  v.  Roy^  119. 
Judgment— Specification  of  Execution. 

6.  It  is  not  essential  to  the  validity  of  an  execution  that  the  Judgment  on 
which  it  is  based  shall  specify  the  nature  of  the  writ,  since  the  relation  between 
the  Judgment  and  the  execution  is  determined  by  law  and  not  by  a  court  order. 

Banning  v.  Roy^  119. 
Act  Curing  Defective  Execution  Sales.    See  Const.  Law,  4. 

EXECUTORS  AND  ADMINISTRATORS. 

Administrators  — Appointment  — Effect  — Title  by  Relation. 

1,  Under  B.  <&  C.  Comp.  I  1147,  vesting  title  to  the  possession  and  control  of 
property  of  a  decedent  in  his  personal  representative  until  the  completion  of  the 
administration,  and  section  6378,  entitling  the  widow  of  an  intestate  who  leaves 
no  issue  to  the  residue  of  his  i)er8onal  property  after  the  payment  of  the  debts 
and  expenses  of  administration,  a  widow  of  an  Intestate  decedent,  who  takes 
possession  of  personal  property  belonging  to  her  deceased  husband's  estate 
prior  to  the  appointment  of  an  administrator,  acquires  by  a  subsequent  appoint- 
ment as  administratrix  a  title  to  such  personal  property  which  relates  back  to 
her  husband's  death,  and  may  be  pleaded  as  a  defense  to  an  action  of  replevin 
brought  for  such  property  by  the  person  from  whom  she  took  the  same,  pro- 
vided the  taking  was  lawful ;  but  the  title  so  acquired  will  not  relate  back,  so  as 
to  validate  the  taking,  if  the  same  was  originally  unlawful  and  in  violation  of 
the  rights  of  the  person  in  possession  thereof.  OoMio  v.  Murray,  67. 

Corroborative  Evidence  Under  Section  1161,  B.  A  C.  Comp. 

2.  The  evidence  presented  is  sufflciently  corroborative  of  the  testimony  of  the 
claimant  to  comply  with  the  requirement  of  Section  1161,  B.  &  C.  Comp. 

Bull  V.  Payne,  680. 

Executors  —  Recovery  on  Claimant's  Own  Testimony. 

8.  In  an  action  to  establish  a  claim  against  a  decedent,  an  instruction  that 
the  Jury  cannot  rely  on  claimant's  testimony  alone,  and,  if  he  comes  into  court 
without  any  evidence  except  his  own,  he  cannot  reeover,  and  that  while  be  is 
a  competent  witness  he  cannot  prevail  unless  he  proves  his  case  by  other  com- 
petent evidence,  is  sufficient  against  the  objection  that  it  admits  a  recovery  on 
claimant's  own  testimony.  Bull  v.  Payne.  680. 

Admissions  as  Evidence  Against  Interest. 

4.  In  a  proceeding  to  establish  a  claim  against  a  decedent,  based  on  a  contract 
whereby  decedent,  on  claimant  conveying  lo  him  a  mining  claim,  agreed  to  sell 
it  and  pay  claimant  a  specified  sum,  evidence  that  subsequent  to  the  sale  deced- 
ent orally  agreed  to  pay  claimant  a  specified  sum  and  to  convey  a  farm  on  per- 
fecting the  title  thereto  was  admissable  as  showing  that  decedent  recognized 
some  liability  to  claimant.  Bull  v.  Payne,  580. 


664  Index. 

Case  Waived. 

5.  Plulntlfl'  coiiveyod  a  miiilDg  claim  to  decodcnt  to  sell,  and  decedent  made 
the  sale,  bin  failed  to  pay  plaintiff.  Subsequently  plaintiff  agreed  to  accept  $^W0 
and  a  farm  on  dreedent  clearing  the  title  thereto.  Before  perfecting  the  title  de- 
cedent died,  and  plaintiff  tiled  a  claim  against  the  estate  for  91,000  on  the  original 
agreement,  which  was  rejected,  and  the  issue  at  the  trial  was  limited  to  the  pur- 
chase price  of  the  claim  at  the  time  it  was  conveyed.  Jield^  that  his  right  of 
recovery  was  not  affected  by  the  subsequent  agreement.  Bull  v.  Payne,  iiHO. 

Trover  — Claim  by  Administrator  of  Double  Damages  for  Conver- 
sion OF  Decedent's  Estate  — Pleading. 

6.  An  administrator  proceeding  under  Section  1152,  B.  <&  C.  Comp.,  for  double 
damages  for  converting  property  of  the  decedent,  must  plead  that  his  claim  is 
made  under  that  statute,  or  It  will  be  considered  that  be  is  claiming  under  Section 
385,  providing  for  recovering  the  value  of  chattel  sofa  decedent  converted  and  the 
value  of  tlie  resulting  InJ ury.  Springer  v.  Jenkins,  502. 

Idem  — Proof  of  Bad  Faith  — Necessity. 

7.  An  administrator,  in  order  to  recover  double  damages  for  the  conversion  of 
property  of  the  decedent,  as  authorized  by  Section  1152,  B.  &  C.  Comp.,  providing 
that  a  person  converting  to  his  own  use  property  of  a  decedent  shall  be  Uable  to 
double  damages,  must  show  that  defendant  acted  in  bad  faith ;  and  proof  that  be 
was  mistaken  in  his  right-s  and  was  ill  advised  is  insufficient. 

Springer  v.  Jenkins,  502. 
EXEMPTION. 

Households  — Nonresidents  — Constitution.    See  Taxation,  2. 

EXPERT  TESTIMONY. 

Objection  to  Must  Indicate  That  the  (Qualification  of  the  Witness  is  the  Point 
of  AtUicic.    See  Witnesses,  2. 

EXPOSED  GEARING  as  an  Assumed  Risk.    Sec  Master  a  Servant,  10. 

EX   POST   FACTO. 

Construction  of  Section  400  of  Portland  Charter  of  1903.    See  Munic.  Corp.  1. 
Validity  of  Curative  Statutes.    See  Constitutional  Law,  4. 
Act  Prohibiting  Ticket  Scalping.    See  Constitutional  Law,  5-9. 

FALSE  PRETENSES. 

Fauhe  Pretenses  — Need  of  Reliance  on  Representation- Elements 
OF  Offense. 

1.  In  order  to  convict  of  a  charge  of  obtaining  money  under  false  pretenses, 
under  Section  812,  B.  &  C.  Comp.,  it  must  appear  that  the  party  charged  Intended 
to  defraud  the  injured  party  and  that  the  latter  relied  on  the  false  representation 
believing  it  to  be  true.  State  v.  MxUer,  662. 

Idem. 

2.  A  bank  cashier  who  draws  and  certifies  a  check  on  his  own  bank.  In  ex- 
change for  which  he  receives  something  of  value,  cannot  be  convicted  of  obtain- 
ing property  by  a  false  tx>ken  or  pretense,  where  he  told  the  person  with  whom 
he  exchanged  that  be  did  not  have  money  on  deposit  to  pay  the  check,  for  there 
was  no  deception,  and  the  injured  person  clearly  did  not  i-ely  on  the  genuineuei>» 
of  the  check .  State  v.  Miller,  54  2. 

FINAL  ORDER.    See  Appeal,  1. 

FINDINGS. 

Conclusiveness  of  Findings  of  Judge  on  Appeal.    See  Appeal,  14, 15. 
Findings  Must  Follow  the  I»sues  of  the  Parties.    See  Trial,  le. 


Index.  665 

forcible  entry  and  detainer. 

Right  of  Appeal  to  Circuit  Court.  .  See  Land  a  Ten.  7. 
Bond  on  Appeal  to  Supreme  Court.    See  Land  a  Ten.  6. 
Need  of  Serving  Notice  to  Quit  Premises.    See  Land  a  Ten.  3. 
Waiver  of  Notice  by  Tenant  to  Quit.    See  Land  a  Ten.  5. 

FORMER  ADJUDICATION.    See  Judgment,  7,  8. 

FRAUDS,  STATUTE  OF.    Same  as  Statute  of  Frauds. 

FRAUDULENT  CONVEYANCES. 

Fraudulent  Cona'eyance— Who  Are  Creditors. 

1.  One  having  a  right  of  action  for  damages  resulting  from  a  tort  la  a  creditor 
of  the  wrongdoer,  within  the  meaning  of  Section  5508,  B.  &  C.  Comp.,  declaring 
void  as  to  creditors  all  conveyances  made  to  hinder,  delay  or  defend  creditors  of 
their  lawful  suits,  damages  or  demands.  Seed  v.  Jenningt,  464. 

Right  of  Suit  to  Set  Aside  Fraudulent  Conveyance. 

2.  To  enable  a  creditor  to  maintain  a  suit  to  set  aside  a  conveyance  by  his 
•debtor  as  fraudulent,  he  must  show  an  unsatisfied  Judgment  or  an  attachment 
upon  a  cause  of  action  existing  at  the  time  of  the  conveyance,  or  on  a  cause  of 
action  arising  subsequent  thereto,  in  which  latter  case  the  conveyance  must  be 
shown  to  have  been  made  with  the  express  intention  of  defrauding  subsequent 
creditors.  Seed  v.  Jennings,  464. 

Presumption  of  Fraud  in  Voluntary  Conveyance. 

3.  Voluntary  conveyances  are  constructively  fraudulent  and  void  jbs  to  exist- 
ing creditors  of  the  grantor,  but  are  presumed  valid  as  against  subset) uent  cred- 
itors, unless  impeached  for  actual  fraud.  Seed  v.  Jpnnxnga,  464. 

Evidence  of  Cause  of  Action  in  Favor  of  Creditor— Record. 

4.  The  existence  of  a  cause  of  action  by  a  creditor  against  his  jBebtor  at  the 
time  the  latter  made  a  voluntary  conveyance  of  property  must  appear  on  the 
iiftce  of  the  record  in  the  action  wherein  the  former  recovered  hii  Judgment,  or 
the  creditor  cannot  maintain  a  suit  to  avoid  such  voluntary  coni^yance  as  con- 
structively ftraudulent.  (Seed  v.  Jennings,  464. 

Evidence  of  Fraudulent  Intent  by  Grantor. 

5.  The  mere  fact  that  subsequent  to  the  date  of  a  voluntary  conveyance  the 
grantor  was  Inappropriately  familiar  with  the  wife  of  a  person  who  subsequently 
obtained  a  divorce  Arom  her  for  such  conduct,  and  also  recovered  a  Judgment  for 
damages  against  such  grantor  on  account  of  such  familiarity^  does  not  show  that 
such  conveyance  was  made  to  hinder,  delay  or  defraud  such  husband  in  the  col- 
lection of  such  Judgment,  there  being  no  evidence  that  the  grantor  expected  to  be 
discovered  or  anticipated  any  action  for  damages.  Seed  v.  Jennings,  464. 

GOVERNMENT  LAND3. 

Protection  to  Homestead  Claimant  of.    Bee  Equity,  8. 
Setting  Aside  of  as  Dower.    See  Divorce,  7. 

GUARDIAN  AND  WARD. 

Effect  of  Not  Taking  Special  Oath  Required  by  Statute. 

1.  Under  Section  5602,  B.  &  C.  Comp.,  requiring  a  guariMan  to  take  a  special 
oath  before  fixing  the  time  and  place  of  a  sale  of  real  property  belonging  to  his 
ward,  the  prescribed  oath  must  be  so  taken  or  the  purchaser  at  the  sale  will  not 
obtain  a  good  title.  Fuller  v.  llager,  242. 

Sales— Irregularities— Subsequent  Validation  by  LEGiSLATUtir. 

2.  The  failure  of  a  guardian,  in  making  a  sale  of  his  ward's  land,  to  take  the 
oath  prescribed  by  B.  &  C.  Comp.  25602,  before  fixing  the  time  and  place  of  sale, 
as  required  by  such  section,  does  not  afl'ect  the  Jurisdiction  of  the  court  to  license 
or  confirm  the  sale,  or  of  the  guardian  to  make  It,  but  is  an  irregularity  in  a 


666  Index. 

matter  of  procedure,  which  the  legislature  could  and  did  cure  by  Laws  1889,  p.  64, 
g  8,  valldatlnpr  guardians'  sales  made  to  purchasers  In  good  faith  and  confirmed 
or  acquiesced  in  by  the  county  or  probate  court,  notwithstanding  irregularities 
in  making  or  conducting  the  same.  Fuller  v.  Hager,  242. 

HARMLESS  ERROR. 

Subsequent  Admission  of  Party  Against  Whom  Evidence  Has  Been  Improp- 
erly  Admitted.    See  Appbai.,  17. 
HOMESTEAD. 

Courts  Will  Protect  Podsession  of  Claimant.    See  Equity,  8. 

Power  of  Court  to  Set  Aside  as  Dower  Land  Claimed  Under  Laws  of  United 

States.    See  Divorce,  7. 

HOMICIDE. 

Evidence  of  Corpus  Delicti. 

1.  In  a  prosecution  for  homicide  the  evidence  as  to  the  corpus  delicti  must 
show  that  the  accused  unlawftilly  caused  the  death  of  a  particular  human  being, 
and  the  proof  may  be  sufficient,  though  entirely  circumstantial. 

State  V.  Bamet,  692. 
Identification  of  Body. 

2.  In  cases  of  homicide  it  is  not  alwaj's  possible  to  positively  and  directly 
identify  the  body  of  the  deceased,  as,  where  it  has  been  substantially  destroyed, 
and  in  such  cases  the  Jury  must  determine  the  question  of  identity  fW>m  the  evi- 
dence presented.  State  v.  Bamea,  592. 

Remoteness  of  Evidence. 

8.  The  finding  of  property  of  deceased  concealed  in  the  possess! un  of  defend- 
ant, though  as  long  as  six  weeks  after  the  death  of  the  owner,  is  competent  to  be 
presented  to  the  Jury,  and  is  not, too  remote.  Slate  v.  Bamea,  59*2. 

HUSBAND  AND  WIFE. 

Efeect  of  Deed  to  Spouses  Jointly— Entireties. 

A  conveyance  of  real  property  to  a  hubsand  and  wife  creates  a  tenancy  by  the 
entirety,  and  upon  the  death  of  either  spouse  the  survivor  takes  the  whole  estate. 

Oliver  V.  Wright,  522. 
IDENTITY  of  Body  of  Person  Said  to  be  Dead.    See  Homicide.  2. 

IMMUNITY  Prohibited  by  Constitution.    See  Const.  Law,  7. 

IMPAIRING  OBLIGATION   OF  CONTRACTS. 

Prohibition  of  Railroad  Brokerage  Does  Not.    See  Const.  Law,  0. 

IMPEACHMENT. 

Contradicting  by  Incomplete  Stenographic  Notes  of  Another  Trial  or  Exam- 
ination.   See  Witnesses,  l. 
IMPLIED  AMENDMENT  by  Subsequent  Act.    See  Statutes,  3. 
IMPLIED  REPEALby  Subsequent  Act.    See  Statutes,  8. 
IMPLIED  WARRANTY  in  Sales  by  Description.    See  Sales,  2. 

INADVERTENCE. 

Opening  Default  ?*aken  by  Surprise  or  Neglect.    See  Judgment,  1. 

INCOMPFrTENCV. 

ObjecHon  for  Does  Not  go  to  Qualification  of  Witness.    See  Witnesse.s,  2. 

INJMOMNITY. 

Indemnity  Contract  — Recitals  and  Conditions. 

1.  The  liability  under  an  Indemnity  bond  i^  not  limited  to  the  recitals,  where 
by  appropriate  reference  the  contract  is  Incorporated  Into  the  bond  — the  con- 
tract being  then  tl\e  measure  of  the  liability. 

Auspluml  V.  ^Ktna  Indemnity  Oo.  10. 


Index.  667 

Idem. 

2.  An  Indemnity  undertaking  reciting  that  the  principal  has  entered  Into  a 
written  agreement  bearing  a  certain  date,  "in  sabstance  practically  as  follows"— 
followed  by  a  general  statement  of  the  termK  of  the  contract,  and  conditioned  for 
the  faithful  compliance  by  the  principal  **wlth  all  the  terms,  covenants,  and  con- 
ditions of  said  contract,"  Incorporates  the  prlnclpal'K  contract  into  the  under^ 
taking,  and  renders  the  Indemnitor  liable  for  a  breach  of  a  provision  of  the  con- 
tract not  specially  recited  in  such  general  statement,  the  entire  contract  being  by 
reference  a  part  of  the  undertaking.  Atuplund  v.  ^tna  Indemnity  Co.  10. 

IDEX— Unreasonable  Contract  Limitations. 

8.  A  building  contract  bound  the  contractor  to  pay  for  all  labor  and  materials 
promptly,  so  that  no  liens  should  be  filed  against  the  property  on  account  thereof. 
An  indemnity  undertaking  authorized  the  surety  to  assume  the  contract  and 
complete  the  same  in  case  the  contractor  should  fail  to  comply  with  the  terms 
thereof,  and  further  provided  that  any  suit  brought  thereon  should  be  Instituted 
within  six  months  after  a  breach  of  the  contract.  The  Indemnitor  ansumed  the 
performance  of  the  contract,  and  accepted  payments  thereon  from  the  owner, 
but  failed  to  pay  for  material  used  in  the  construction  of  the  building.  Liens 
were  consequently  filed  against  the  property  the  amount  of  which  could  not  be 
determined  until  they  were  foreclosed,  which  could  not  be  done  with  reasonable 
promptnera  until  more  than  six  months  after  the  breach.  Held^  that  the  limi» 
tatlon  period  of  six  months  was,  under  the  circumstances,  unreasonable  and 
inoperative.  Axaplund  v.  ^Etna  Indemnity  Co.  10. 

Idem— Waiver  of  Contract  Limitation  by  Guarantor. 

4.  An  indemnitor  on  a  building  contract  which  assumed  the  performance  of 
its  principal's  contract,  and  received  from  theowner  the  money  due  thereon,  and 
foiled  to  comply  with  the  terms  of  its  undertaking  thereby  waived  a  stipulation 
in  such  undertaking  limiting  to  six  months  after  breach  the  time  within  which 
an  action  might  be  brought  on  the  contract. 

Aiuplund  V.  JEtna  Indemnity  Co,  10. 

Idem  —  Duty  and  Subrogation  of  Indemnitor. 

5.  Where  a  surety,  either  corporate  or  individual,  in  pursuance  of  the  terms 
of  the  undertaking,  assumes  the  performance  of  the  principal's  contract,  such 
surety  is  subrogated  to  the  rights  of  the  principal  in  such  contract,  and  becomes 
subject  to. his  liabilities.  §  Auaplund  v.  Af:tna  Indemnity  Cb.  10. 

Construction  of  Contract  to  Deliver  Building  Free  of  Liens. 

tf.  A  stipulation  in  a  building  contract  that  the  last  Installment  due  there- 
under  Is  to  be  paid  when  the  building  is  surrendered  free  of  all  liens,  requires  an 
indemnitor,  who  has  given  an  undertaking  conditioned  that  the  principal  shall 
faithfully  comply  with  the  terms  of  the  contract,  to  see  that  the  building  Is  sur- 
rendered free  of  liens.  McKinnon  v.  Higgins,  45. 

W^AiVER  OF  Limitation  by  Indemnitor. 

7.  Anindemnitor  on  a  building  contract,  which  accepted  from  the  owner  the 
final  payments  under  the  contract,  and  then  permitted  liens  to  be  filed  against 
the  property,  waived  its  right  to  Insist  tbatan  action  bj»  l^e  owner  to  recover  the 
damage  sustained  by  the  filing  of  the  liens  was  not  InstltcU^  within  the  time 
limited  by  the  indemnity  undertaking.  Me  fTinhoi^  v.  Hiaains.  45. 

Limitation  of  Action  on  Indemnity  Contract. 

8.  A  right  of  action  under  a  contract  to  indemnify  against  loss  or  injury  frd 
certain  money  demands  does  not  accrue  until  the  person  indemnified  sufi^ers 
some  loss  from  such  demands.  I*eterson  v.  Creasoti, 


668  Index, 

indictment  and  information. 

Motion  to  Strike  Oct  Part  of  an  Information. 

1.  In  view  of  .Section  lii->\  B.  A  C.  Corap.,  providing  that  the  only  pleadings 
^y  a  defendant  In  a  criminal  case  shall  be  a  plea  and  a  demurrer,  a  motion  to 
strikeout  part  of  an  information  is  not  a  proper  proceeding  under  the  Oregon 
practice.  SUUe  v.  Conklin,  509. 

Disjunctive  and  Conjunctive  Charges. 

2.  Under  an  ordinance  forbidding  the  doing  of  any  of  several  enumerated  acts 
•dl^unctlvely,  an  information  charging  the  doing  of  all  such  acts  both  conjunc- 
tively and  disjunctively  is  neither  direct  nor  certain  as  to  the  crime  charged 
(B.  &.  C.  Com  p.  g  1306),  and  charges  more  than  one  offense  in  more  than  one  form: 
B.  &  C.  Qomp.  g  1308.  Wong  Sing  v.  Independence^  231. 

Estoppel  to  Question  Form  or  Information. 

3.  That  an  information  under  a  city  ordinance  is  in  conformity  with  the  form 
prescribed  by  the  ordinances  of  such  city  does  not  estop  the  defendant  from  ques- 
tioning Its  validity  or  prevent  a  court  from  testing  it  by  the  general  laws  appli- 
•cable  thereto.  Wong  Sing  v.  Independence,  231. 

See,  also,  Embezzlement,  2 ;  Intoxicating  Liquors,  2, 8. 

INFORMATION.    Same  as  INDICTMENT. 

INHUMAN  TREATMENT. 

Conduct  not  Constituting.    See  Divorce,  I,  2. 

INJUNCTION. 

Injunction  Against  Malfeasance  in  Office. 

1.  The  fact  that  a  public  official  may  be  so  performing  his  official  duties  as  to 
\>e  liable  for  malfeasance  in  office  does  not  Justify  equitable  interference  at  tlie 
suit  of  a  taxpayer.  Seart  v.  James,  50. 

Restraining  Actions  at  Law— Adequacy  of  Legal  Remedt. 

2.  Whether  money  collected  by  an  attorney  or  agent  on  a  Judgment,  and  paid 
over  to  another,  belonged  to  the  latter,  or  to  the  principal,  is  an  issue  determin- 
able in  a  law  action  that  may  be  brought  by  the  principal  against  the  agent  tp 
recover  the  money;  and'  the  one  to  whom  the  money  was  paid  cannot  sue  in 
equity  to  enjoin  such  a  law  action,  and  procure  a  determination  of  the  Issue  in 
that  manner.  Mt)98  Mer^ntiU  Co.  v.  First  NcU,  Bank,  361. 

Enjoining  Collection  of  Street  Assessment. 

3.  The  fact  that  an  abutting  owner  has  a  cause  of  action  against  the  city  for 
unlawfully  encroaching  upon  his  property  while  grading  the  street  does  not 
authorize  him  to  enforce  his  right  to  damages  in  a  suit  in  equity  to  enjoin  the 
•collection  of  the  assessment  levied  against  his  property  for  the  grading,  where 
the  proceedings  leading  up  to  making  the  assessment  were  regular,  and  the 
injunction  relief,  which  is  made  the  basis  of  equitable  Jurisdiction,  cannot  be 
properly  granted.  Davia  v.  SUverton,  171. 

INSOLVENCY. 

Proof  of  In  Suits  to  Setroff  Judgments.    See  Equity,  2. 

INSTRUCTING  JURIES. 

Oral  Instructions  Not  Part  of  the  Transcript.    See  Appeal,  6, 7. 
Confining  In.structions  to  Relevant  Matters.    See  Trial,  11. 
Should  Not  Lay  Special  Stress  on  Some  Testimony.    See  Trial,  12. 
Should  be  Confined  to  Relevant  Material  Points.    See  Trial,  11. 
Duty  to  Instruct  on  Collateral  Issues  —  Request.    See  Trial,  4. 
Limit  of  Time  When  Instructions  Should  be  Asked.    See  Trial,  5. 
Refusing  Instructions  Already  Covered  In  Charge.    See  Trial,  10. 


Index.  669* 

interest. 

Interest  on  Unliquidated  Damages. 

Under  B.  &  C.  Comp.  g  45»5,  defining  the  rate  of  interest  "on  Judgmentfl  and 
decrees  for  the  payment  of  money,"  Interest  on  unliquidated  damages  arising 
out  of  a  tort  does  not  run  until  Judgment.  Soren^en  v.  Oregon  Power  Co.  24. 

INTERLOCUTORY  DECREE. 

Nature  of  Order  Adjudging  Right  to  Redeem  and  Fixing  Conditions  of  Re- 
demption,   nee  Appeal,  2. 

INTOXICATING  LIQUORS. 

Selling  Liquor  in  Town  of  Forest  Grove. 

1.  Underthe  rule  of  construction  declared  by  Section  707ofB.^C.  Comp.,  that 
the  legislative  intention  shall  be  followed,  if  possible,  it  must  be  held  that  the 
council  of  the  City  of  Forest  Grove  has  not  authority,  under  the  charter  of  1891,  to 
license  the  sale  of  intoxicating  liquors.  The  authority  to  "regulate,"  in  view  of 
the  history  of  the  charter  and  the  social  conditions  that  have  long  existed  at  that 
point,  does  not  imply  the  right  to  license,  but  rather  the  right  to  control  the  dis- 
posal of  liquors  by  some  other  means.  Pacific  University  v.  Johnson^  448. 

Information— Showing  Amount  Sold. 

2.  An  information  for  selling  liquor  in  less  quantity  than  is  permitted  to  be 
sold  without  a  license  need  not  show  the  exact  amount  so  sold,  but,  the  amount 
being  an  element  of  the  offense,  the  Information  must  show  that  such  amount 
was  less  than  that  allowed,  in  view  of  B.  <&  C.  Comp.  g  1800,  requiring  a  criminal 
charge  to  be  direct  and  certain  as  to  the  crime  meant. 

Wong  Sing  v.  Independence^  231. 
Idem. 

3.  Under  an  ordinance  forbidding  the  sale  of  "any  spirituous,  malt  or  vinous 
Uquors,"  and  making  each  sale  a  separate  offense,  an  information  in  which  is 
charged  a  sale  of  "spirituous  and  malt  liquors,  or  spirituous  or  malt  liquors",  is 
not  sufficient  under  B.  <&  C.  Comp.  U  1306  and  1B06. 

Wong  Sing  v.  Independence  231. 
Construction  of  City  Ordinances. 

4.  Where  a  city  ordinance  provides  that  no  person  shall  sell  liquor  in  less 
quantities  than  a  gallon  without  a  license,  and  in  a  subsequent  section  further 
provides  that  anyone  selling  or  disposing  of  any  liquor  without  a  license  shall 
be  punished,  the  words  "in  less  quantities  than  a  gallon"  are  impliedly  imported 
into  the  latter  section.  Wong  Sing  v.  Independence^  231. 

JUDGMENT. 

Vacating  Default  — Surprise  or  Excusable  Neglect. 

I.  Amotion  tovacateajudgment  rendered  for  want  ofan  answer  on  the  ground 
of  mistake,  inadvertence,  and  excusable  neglect  Is  addressed  to  the  sound  discre- 
tion of  the  trial  court,  which  cannot  be  disturbed  on  appeal  unless  manifestly 
abused.  For  example :  In  support  of  a  motion  to  vacate  a  Judgment  rendered  on 
October  12  for  want  of  an  answer,  defendant's  counsel  showed  that  on  October  5- 
he  forwarded  a  motion  to  strike  parts  of  the  complaint,  notifying  the  clerk  that 
he  desired  to  be  advised  of  the  decision;  that  on  October  10  the  clerk  notified 
counsel  that  the  motion  was  overruled,  which  letter  of  notification  ^as  not 
delivered  at  the  ofllce  of  counsel  until  the  morning  of  the  13th,  at  which  time  he 
was  in  attendance  upon  court  in  another  county;  that  on  that  day  he  prepared 
and  transmitted  an  answer,  and  wrote  to  plaintiff's  counsel  asking  him  as  a 
matter  of  courtesy  for  advice  as  to  the  proper  steps  to  be  taken  in  the  premises^ 
to  which  plalntifTs  counsel  replied  that  he  had  obtained  Judgment.  Held^  that 
there  was  no  such  surprise,  inadvertence,  or  excusable  neglect  as  to  make  it  an 
abuse  of  discretion  for  the  court  to  refuse  to  vacate  the  Judgment. 

Horn  V.  United  Securities  Oo.  35^ 


670  Index. 

Power  to  Vacate  Judgment  After  Close  or  Term. 

2.  Buperior  courts  possess  power  at  all  times,  regardless  of  terms,  to  vacate 
Told  judgments  and  decrees,  and  they  should  do  so  whenever  attention  is  called 
to  such  orders.  Huffman  v.  Huffinan,  <IIO. 

Points  Available  on  Collateral  attack. 

3.  In  a  collateral  attack  on  a  Judgmentor  decree  only  the  existence  of  Juris- 
diction in  the  trial  court  can  be  considered.  Hvffman  v.  Hvffman^  610. 

Idem. 

4.  In  an  action  on  a  civil  bail  bond,  the  sufficiency  of  the  complaint  on  which 
the  bond  is  based  is  conclusively  established  by  the  entry  of  a  Judgment  thereon. 

Banning  v.  Roy,  119. 

NATt7RE  AND  EXTENT  OF  JUDGMENT  LlEN. 

6.  A  Judgment  for  plaintitTin  an  attachment  action  becomes,  when  docketed, 
a  Hen  upon  all  the  real  property  of  the  Judgment  debtor,  but  does  not  establish 
any  specific  interest  in  his  land.  Oliver  v.  Wright^  322. 

Res  Judicata  —  Persons  Concluded. 

0.  A  motion  to  quash  is  not  the  remedy  of  one  whose  property  has  been 
seized  under  a  writ  against  another,  and  the  decision  on  such  a  motion  is  not 
conclusive  in  a  subsequent  appropriate  proceeding  to  determine  the  title,  since 
the  claimant  was  not  a  party  to  the  proceeding  in  which  the  writ  was  issued  and 
consequently  could  not  have  demanded  or  received  the  relief  now  obtainable: 

Holmes  v.  Wol/ard,  98. 

Res  Judicata  —  Matters  Concluded. 

7.  The  issnes  herein  were  tried  in  and  are  concluded  by  a  prior  decree  between 
the  same  parties  about  the  same  property.  Marquam  v.  Rote,  S74. 

Lien  of  Judgment  on  Equitable  Interest  in  Land. 

8.  In  Oregon  the  lien  of  a  Judgment  does  not  attach  to  an  equitable  Interest, 
and  of  course  such  an  Interest  is  not  liable  to  sale  on  an  execution. 

Pogue  V.  iSlmon,  6. 
Lien  of  Judgment  on  Mortgaged  Land. 

9.  In  view  of  Section  205,  B.  A  C.  Comp.',  providing  that  ftom  the  date  of  dock- 
eting a  Judgment  it  shall  be  a  lien  upon  all  the  real  property  of  the  defendant 
within  the  county,  or  whlcji  he  may  afterwards  acquire,  a  Judgment  that  is  dock- 
eted against  a  mortgagor  after  a  sale  of  his  real  estate  under  foreclosure  decree, 
but  before  expiration  of  the  period  of  redemption,  becomes  a  lien  on  the  property, 
subject  to  be  defeated  only  by  the  execution  and  delivery  of  a  sherllTs  deed. 

Kaeton  v.  Storey,  150. 
•  Lien  —  Lis  Pendens. 

10.  Under  the  doctrine  of  lis  pendens,  one  who  acquires  title  to  or  a  lien  upon 
mortgaged  real  property  after  the  commencement  of  a  foreclosure  suit,  is  bound 
by  the  decree,  though  not  a  necessary  party  thereto,  and  a  sheritTs  deed  Issued 
under  a  sale  pursuant  to  such  decree  will  cutoff  the  holder  of  such  title  or  lien  ; 
but  if  the  proceedlntfs  under  the  decree  are  terminated  by  a  redemption,  the  sub- 
sequently acquired  title  or  lien  becomes  enforclble.  Kaeton  v.  Storey,  IdO. 

See,  also,  Execution. 
Merger  of  Attachment  Liens  in  Judgment. 

11.  Where  a  Judgment  quasi  in  rem  is  rendered  against  attached  property, 
directing  it  to  be  sold  to  satisfy  the  debt  of  the  attaching  creditor,  the  right  which 
the  latter  has  secured  by  the  seizure  under  the  writ  of  attachment  becomes 
merged  in  the  lien  of  the  judgment.  Oliver  v.  Wrig?U,  922, 

Equity  Jurisdiction  to  Set-Off  Judgments  — Remedy  at  Law. 

12.  The  exercise  by  a  court  of  equity  of  its  Jurisdiction  to  set  off  one  Judgment 
against  another  depends  upon  the  inadequacy  of  the  remedy  at  law,  resulting 
from  the  existence  of  some  supervening  equity,  such  as  insolvency,  nonresi- 
dence,  or  the  like.    The  mere  existence  of  cross-demands  is  of  itself  Insufllcient. 

Whelan  v.  Afemahcfn,  37. 


Index.  671 

JUDICIAL  POWER  to  Vacate  Judgments  After  the  Term.    See  Judgments,  2. 

JURISDICTION. 

Cannot  be  Conferred  by  Consent  of  Litigants.    See  Courts,  1. 

Retention  of  by  Undecided  Motion.    See  Courts,  8. 

Justices  of  the  Peace  Over  Embezzlement.    See  Justices  of  Peace. 

JURY. 

Discharge  of  Jury  — Appearance  of  Prejudice. 

The  trial  court  should  release  a  Jury  from  consideration  of  a  case  when  It 
Is  made  to  appear  that  by  reason  of  facts  existing  at  the  time  the  jury  was  im- 
paneled, but  unknown  to  the  court,  or  facts  occurring  afterwards,  members  of 
the  Jury  are  subject  to  such  bias  or  prejudice  as  not  to  stand  impartially  between 
the  parties.  Sorenton  v.  Oregon  Power  Cb.  24. 

JUSTICES  OF  THE  PEACE. 

Jurisdiction  of  Justice's  Court  Over  Embezzlement. 
Under  Section  1798  of  B.  A  C.  Com  p.,  a  Justice's  court,  or  any  municipal  court, 
having  the  authority  of  a  Justice  of  the  peace,  as,  the  Municipal  Court  of  the  City 
of  Portland;  has  Jurisdiction  over  any  form  of  larceny,  where  the  value  of  the 
property  talcen  does  not  exceed  thirty-five  dollars.  Slate  v.  Browning,  470. 

Forcible  Entry  or  Detainer —  Bond  Required  to  Appeal  From  Circuit  Court- 
Notice  to  Quit  May  be  Waived.   See  Landlord  a  Tenant 

KNOWN   DANGER. 

Effect  of  Knowledge  of  Danger  by  Stranger.   See  Negligence  2, 3. 

LANDLORD  AND  TENANT. 

Sale  of  Leased  Premises— Who  May  Give  Notice  to  Quit. 

1.  A  stipulation  in  a  lease  reserving  to  the  lessor  the  right  to  terminate  the 
lease,  if  the  property  shall  be  sold,  by  giving  a  specified  notice  of  the  sale  and 
of  a  desire  to  resume  possession  of  the  premises,  operates  as  a  covenant  running 
with  the  land,  and  authorizes  the  grantee  to  so  terminate  the  leai»e,  though  the 
word  ^'assigns"  does  not  appear  in  the  written  instrument;  but  such  a  clause 
also  operates  to  reserve  to  the  original  lessor  the  right  to  give  the  prescribed 
notice  after  the  delivery  of  a  deed  thereto.  McClung  v.  McPherson,  78. 

Effect  of  Notice  to  Move  or  Pay  Increased  Rent. 

2.  A  noUce  by  a  landlord  to  a  tenant  that  unless  he  vacat«8  the  premises  the 
rent  vrill  be  a  stated  amount  other  than  that  reserved  by  the  lease  Is  IneflTectual 
for  any  purpose.  McClung  v.  McPherton,  73. 

Requisites  of  Notice  to  Quit.  • 

8.  Under  B.  A  C.  Comp.  g  5756,  reiiuiring  a  notice  to  be  in  writing  and  served 
upon  the  tenant,  or  left  at  the  premises,  such  notice  must  be  in  writing,  and 
should  describe  the  premises  with  reasonable  certainty  for  Identification,  and 
require  the  tenant  to  remove  thereft'om  on  a  specified  day. 

McClung  v.  McPheraon,  73. 

Notice  to  Quit  by  Attorney  or  Agent. 

4.  A  notice  to  quit  may  be  given  by  an  authorized  agent  or  attorney,  and  a 
.  failure  to  object  to  a<notlce  signed  by  attorneys  when  ofl"ered  is  a  waiver  of  that 

objection  thereto.  McClung  v.  McPheraon,  73. 

Waiving  Service  of  Notice  to  Quit. 

5.  The  notice  xeferred  to  In  the  second  subdivision  of  Section  57o5,  B.  &  C. 
Comp.,  to  be  given  by  a  landlord  to  a  tenant,  to  quit  the  rented  premises,  is  re- 
quired to  be  given  before  the  tenancy  can  be  legally  terminated,  and  therefore  the 
giving  and  receiving  thereof  may  be  waived  by  Uie  tenant.  The  giving  of  the 
notice  is  not  part  of  ihe  procedure  by  the  landlord  to  recover  possession. 

Wol/er  V.  Hurst,  166. 


672  Index. 

Stay  Bond  on  Appeal  — Meaning  of  the  Term  "  Final  Judgment." 
6.  The  phrase  '*  final  Judgment,"  used  In  section  5754,  B  &  C.  Com  p.,  provid- 
ing for  an  undertaking  on  appeal  In  actions  of  forcible  detainer  that  .sIihII  secure 
twice  the  rental  value  of  the  property  **  until  final  Judgment"  In  the  case,  means 
the  last  Judgment  that  may  be  entered  In  any  court  to  which  the  appejil  may  be 
finally  prosecuted;  therefore,  In  such  a  case  appealed  from  a  Justice's  court,  no 
new  stay  bond  Is  required  on  a  further  appeal  from  the  circuit  to  the  supreme 
court.  Wolfer  v.  Ilurst^  156, 

Forcible  Detainer  — Right  ok  Appeal  From  Justice's  Court. 
•  7.  Section  5754,  B.  <t  C.  Comp.,  prescribing  the  undertakings  to  be  given  when 
Judgments  in  forcible  entry  or  detainer  cases  are  given,  Impliedly  authorizes  ap> 
peals  from  J  udgmen  ts  by  J  ustices  of  the  peace  1  n  such  cases.     Wolfer  v.  Hur»ty  156. 

LARCENY. 

Embkzzlement  as  a  Form  of  Larceny. 

1.  Embezzlement,  as  defined  by  Section  1806  of  B.  A  C.  Comp.  Is  a  variety  of 
larceny,  though  not  Involving  the  element  of  trespass,  a  breach  of  confidence 
being  subsiltut«d  therefor.  Stale  v.  Brooming,  470. 

Obtaining  Possession  by  Fraud. 

2.  Where  a  person  Is  Induced  by  some  deception  to  part  with  the  possession  of 
money  or  property  to  one  who  Intended  to  appropriate  It,  and  does  s<i,  the  taking 
constitutes  larcenj',  whatever  may  be  said  where  the  owner  intends  to  part  with 
not  only  the  possession  but  the  title  as  well.  State  v.  Ryan,  388. 

LAWS  OF  OREGON. 

For  Compiled  Laws,  see  Statutes  of  Oregon. 

For  Uncompiled  Laws  see  Session  Laws  of  Oregon. 

LEGISLATIVE  CONSTRUCTION.    See  Constitutional  Law,  1. 

LEGISLATIVE  POWER. 

Curing  Defects  in  Irregular  Judicial  Sales.    See  Const.  Law,  4. 

LIBEL  AND  SLANDER. 

Criminal  Libel  — Evidence  of  Rumors— Harmless  Error. 

1.  In  view  of  Section  2170,  B.  &  C.  Comp.,  relating  to  showing  the  truth  of  a 
publication  In  criminal  actions  for  libel,  it  is  doubtful  whether  evidence  of 
rumors  corroborative  of  the  alleged  defamatory  matter  Is  admissible;  but  In  the 
present  case  the  error,  if  any,  was  harmless.  State  v.  Oonklin,  509> 

Criminal  Libel  — Excluding  Evidence  of  Rumors. 

2.  Where,  on  appeal  from  a  conviction  for  libel,  the  evidence  is  not  all  In  the 
record,  the  exclusion  of  evidence  as  to  where  defendant  learned  the  facts  con« 
talned  in  the  publication  could  not  be  regarded  as  prejudicial  error,  since.  If  the 
truth  of  the  publication  had  been  established,  the  evidence  was  unnecessary 
and,  If  not,  it  was  Incompetent.  State  v.  Oonklin,  509. 

Criminal  Libel  —  Accusation  of  Crime  is  Libelous. 

3.  A  published  statement  that  a  woman  employed  a  man  to  collect  some 
money,  and  that  after  collecting  It  he  failed  to  turn  It  over  to  her,  finally  odmlt-^ 
ting  that,  he  had  used  It  and  offering  to  give  his  note  for  It,  charges  the  crime  of 
embezzlement,  under  B.  &  C.  Comp.  g  1805,  and  Is  actionable  per  se. 

Slate  V.  Cbnklin,  509. 
Civil  Libel— Nature  of  Publication  Imputing  a  Crime. 

4.  Printed  statements  maliciously  Imputing  to  another  the  commission  of  a 
crime  are  libelous  per  se. 

State  V.  Oofiklin,  500 ;    Wooley  v.  Plaindealer  Publishing  Oo.  619. 


Index.  673 

Civil  Libbl— Construction  of  Publication. 

5.  A  publication  fltatlng  that  plaintiff  let  contracts  for  school  baildlngSf  sup- 
plied the  hardware,  pulnts,  etc.,  compelling  the  contractor  to  submit  to  high 
prices  fur  Inferior  goods,  or  to  have  trouble  In  having  his  work  accepted,  and  that 
at  plaintiff's  dictation  an  expensive  nind  out  of  date  heating  apparatus  was  in- 
8t4illed,  and  that  he  sold  an  undesirable  engine  at  a  large  profit  to  the  district, 
plaintiff  being  a  director  of  such  school  district,  is  libelous  per  seln  Oregon  where 
the  statute  forbids  any  school  director  from  having  any  pecuniary  Interest  directly 
or  indirectly  in  the  conHruotlon  or  furnishing  of  schoolhouses  in  his  district, 
under  a  prf>8crlbed  penalty.  Wooley  v.  Plaindealer  PablUhing  Oo,  619. 

AiiLSOATioNS  Showing  Application  of  Libelous  Mattbr. 

6.  In  an  action  for  libel.  It  being  unnecessary  under  Bectlon  91,  B.  &.  C.  Comp., 
to  plead  any  matter  showing  the  application  to  plaintiff  of  the  defamatory  mat- 
ter set  forth,  a  com plalnt^ho wing  the  publication  by  defendant  of  matter  that  Is 
partly  libelous  per  se  Is  good,  though  the  application  of  other  parts  of  such  mat^ 
ter  Is  not  apparent  and  is  not  explidned  by  Innuendo. 

Woolej/  V.  Plaindealer  Publishing  Cb.  4)19. 
Purchases  by  School  Dirbctobs— Mitigation  of  Damages. 

7.  Under  Section  8389,  B.  A  C.  Comp.,  concerning  purchases  of  supplies  for 
school  districts  by  school  directors,  no  sale  of  anything  in  which  a  director  may 
have  a  pecuniary  Interest  should  be  countenanced;  and,  therefore,  In  a  libel  ac- 
tion for  charging  a  school  director  with  a  violation  of  his  duty  by  selling  to  hU 
district  articles  used  in  dally  routine,  though  not  properly  for  use  **in  the  erec- 
tion, or  for  the  warming,  ventilating,  furnishing  or  repairing"  of  schoolhouses, 
defendant  should  be  permitted  to  show  in  mitigation  of  damages  any  purchases 
in  which  plaintiff  was  pecuniarily  interested  made  by  the  school  board  while  he 
was  a  director.  Wooley  v.  Plaindealer  Publiahmg  Oo.  619. 

Instruction  as  to  Libelous  Nature  of  Publication. 

8.  It  is  the  duty  of  a  trial  Judge  to  charge  the  Jury  whether  a  publication  is  per 
se  libelous  or  not.   State  v.  Conklm,  509;    Wooley  v.  Plaindealer  Publithing  Co.,  619. 

LIENS. 

Enforcbmbnt  of  Liens  Not  Obligatory. 

1.  The  perfecting  and  enforcing  of  a  lien  is  a  privileie  granted  by  the  statute 
that  may  be  waived  or  claimed  by  the  lienor  at  his  pleasure,  but  if  he  elects  to 
claim  it,  he  must  comply  with  the  conditions  attached  to  the  grant. 

Horn  V.  UnUed  Slates  Mining  Oo.  VM, 
Perfecting  Miners'  Liens  — Time  for  Filing  Claim. 

2.  Under  a  statute  requiring  every  laborer  entitled  to  a  claim  of  lien  to  file 
his  claim  with  the  county  clerk  within  a  staled  time  after  ceasing  to  labor,  the 
filing  of  the  Hen  within  the  time  prescribed  by  the  statute  is  a  condition  pre- 
cedent to  the  preservation  by  the  laborer  of  the  inchoate  right  of  Hen  arising 
from  the  performance  of  the  work,  and  if  It  is  not  observed  the  lien  is  lost. 

Horn  v.  United  States  Mining  Oo.  121. 
Computation  of  Time  for  Filing  Lien. 

8.  Under  a  statute  requiring  every  laborer  entitled  to  claim  a  lien  to  file  a 
claim  with  the  county  clerk  within  a  stated  time  afl^r  ceasing  to  labor,  the  time 
within  which  to  file  a  lien  Is  reckoned  by  excluding  the  first  (the  last  day  of 
service  in  the  mine)  and  including  the  last  day  of  the  period  prescribed. 

Horn  v.  UnUed  States  Mining  Oo.  124. 
Lien  of  Judgment  on  Equitable  Interest  in  Land.    See  Judgment,  8. 
Lien  of  Judgment  Docketed  After  Foreclosure.    See  Judgment,  9,  10. 
Lien  of  Attachment  Against  Equities.    See  Attachment,  2. 
Lien  of  Attachment  Merges  Into  Judgment  Lien.    See  Merger. 
When  and  on  what  Judgment  is  a  Lien.    See  Judgment,  &. 
47  Or. 48 


674  Index, 

limitation  of  actions. 

Insufficiency  of  answer  Setting  up  Special  Limitation. 

1.  Where  a  complaint  shows  facts  sufficient  to  excuse  plalntlfTs  delay  in  not 
instituting  the  action  within  the  time  limited  in  the  contract  sued  on,  which  are 
denied,  a  separate  answer  alleging  that  the  action  was  not  commenced  within 
the  time  so  limited  is  demurrable,  as  not  containing  new  matter  constituting  a 
defense,  under  B.  <&  C.  Com  p.  g  78.  The  Isjiue  is  made  by  the  allegation  and  denial, 
so  the  allegation  in  the  separate  answer  is  no  defense. 

A  utplund  V.  AStna  Indemnity  Oo.  10. 
Waiver  of  Plea  of  Statute. 

2.  Under  B.  &  C.  Comp.  §  68,  permitting  as  ground  of  demurrer  that  the  action 
was  not  commenced  within  the  time  limited  by  the  Code,  an  objection  that  the 
complaint  shows  on  its  face  that  t  e  action  was  not  commenced  wirhln  the  Ume 
specified  must  be  taken  by  demurrer,  or  it  will  be  deemed  waived  ;  but  whether 
this  applies  to  the  limitation  Imposed  by  special  contratts  is  not  decided. 

Atutplund  V.  y£%na  IndemnUy  Co.  iO, 
Validity  of  Special  Contract  Agreements,  ^ee  Contracts,  1,  2. 
Validity  of  Unrea.sonable  Agreement.    See  Contracts,  1. 
Example  of  Loss  of  Right  of  Action.    See  Replevin,  1. 
Suits  to  Quiet  Title  Against  Tax  Deeds.    See  Taxation,  14, 15. 

LIS  PENDENS. 

Lien  Acquired  by  Purchase  During  Litigation.    See  Judgment,  10. 

LIVESTOCK. 

Law  of  1905  Taxing  Migratory  Herds.    See  Const.  Law.  1. 

LOCAL  IMPROVEMENTS. 

Validity  of  Reassessment—  Notice.    See  MuNic.  Corp.  1-8. 

LOST  INSTRUMENT. 

Title  of  Purchase  of  Lost  Note  and  Mortgage.    See  Bili^  a  Notes,  1,  2. 

LOST*  PROPERTY. 

Meteors—  Evidence  of  Former  Ownership.    See  Mines,  1,  2. 

MANDATE 

Power  of  Su  preme  Court  to  Recall  Mandate.    Sec  Courts,  2. 

MARRIED  WOMEN.    See  Husband  a  Wife. 

MASTER  AND  SERVANT. 
Effect  of  Death. 

1.  The  relation  of  master  and  servant  Is  endetl  by  the  death  of  the  employer, 
unless  there  is  a  special  agreement  otherwise.  CXuto  v.  Murray^  57. 

Discharge  —  Instructions. 

2.  In  an  action  for  services  performed,  where  the  issue  was  an  implied  dis- 
charge, and  the  court  charged,  without  exception  from  defendant,  that  if  plain- 
titr  went  Into  defendant's  employ  at  a  stipulated  salary  without  any  time  l>elng 
fixed  as  to  how  long  he  should  work,  he  was  entitled  to  wages  until  such  time  as 
he  had  been  notified  of  his  discharge,  and  If  he  remained  in  possession  of  defend- 
ant's property  after  the  works  were  shut  down,  and  held  himself  in  readluesi  to 
perforin  such  work  as  defendant  might  direct  him  to  do,  under  an  honest  belief 
that  he  was  still  in  defendant's  employ,  and  if  he  had  in  fact  never  been  dis- 
charged, the  Jury  should  find  for  plaintiff,  a  further  charge  that  the  Jury  might  * 
take  into  consideration,  in  determining  whether  plaintiff  was  entitled  to  recover, 
whether  defendant  consulu^d  plaintiff  with  reference  to  future  development  of 
the  property,  and  called  upon  him  to  perform  any  duties  after  the  other  men 
were  dischai'ged,  was  equivalent  to  a  charge  that  such  matters  might  be  taken 
into  consideration  in  determining  whether  there  had  been  a  discharge,  and  was 
not  erroneous.  Mee  v.  Bowden  Mining  Co.  14.S. 


Index.  675 

Injury  to  Employkb  — Responsibility  of  Master  for  Negligence  of 

Vice  Principal. 
8.  Under  Laws  19(Xs,  p.  20.  making  railroad  companies  liable  for  injuries  to 
employees  resulting  from  the  wrongful  act  of  an  agent  or  ofllcer  superior  to  the 
employee  injured,  a  railroad  comptiny  in  responsible  U)  a  common  laborer  in  a 
construction  gang  for  the  negligence  of  the  foreman  having  charge  of  the  gang 
«nd  control  of  the  conduct  and  services  of  the  employees  therein. 

Sorenson  v.  (tregoa  Power  Oo.  24. 
Responsibility  fob  Use  of  Methods  and  Appliancks. 

4.  Where  an  employer  intrusts  to  the  employees  entraged  in  the  work  theduty 
of  selecting  from  appliances  furnished,  he  1^4  not  liable  f  »r  injuries  to  a  servant 
caused  by  negligence  of  fellow-servants  in  failing  to  select  safe  appliances  for  use; 
but,  if  the  master  perforins  the  duty  of  selecting  such  appliances  himself,  he  is 
liable  for  the  exercise  of  reasonable  care  in  making  the  selection  and  continuing 
the  use  of  the  appliances  selected,  and  evidence  of  a  custom  among  employers 
requiring  the  workmen  to  select  is  immaterial  and  incompetent. 

Geldard  v.  Marshall,  271. 

5.  For  example:  In  an  action  by  a  servant  against  his  master  growing  oatof 
An  injury  caused  by  the  breaking  of  a  rope  with  which  timbers  were  being  lowered, 
an  instruction  that  If  plaintiff  knew  the  rope  broke  on  account  of  its  weak  and 
defective  condition  the  day  before  he  was  injured,  and  knew  thai  defendant  never- 
theless continued  to  use  it,  he  assumed  the  rl»'k  of  injury  from  the  defective  rope, 
was  error,  where,  though  the  plaintiff*  testified  that  he  knew  the  rope  broke  the 
day  before,  there  was  no  evidence  that  the  plaintiff  knew  why  the  rope  broke,  or 
saw  it  break,  or  that  he  knew  that  the  rope  used  on  the  day  of  his  injury  was  the 
same  which  had  broken  the  day  before.  Oeldard  v.  Marshall,  271. 

Question  for  Jury. 

6.  In  an  action  for  injuries  to  a  servant  by  the  breaking  of  ropes  used  in  lower- 
ing a  heavy  timber,  evidence  Ae/d  to  require  submission  to  the  Jury  of  the  question 
whether  defendant,  who  was  present  directing  the  work  himself,  selected  the  ropes 
from  a  supply  furulshed,  or  delegated  such  selection  to  plaintifTs  fellow-servants. 

Oeldard  v.  Marshall,  271. 
Assumption  of  Risk  by  Immature  Servant. 

7.  A  servant  of  immature  3'ears  assumes  such  ordinary  hazards  or  risks  of  his 
employment  as  he,  through  bis  degree  of  intelligence,  knows  or  should  know 
and  appreciate,  and  consequently  assumes  such  dangers  as  are  so  open  and  obvi- 
ous to  the  senses  that  one  of  his  capacity  and  experience  should,  in  the  exercise 
of  the  care  and  prudence  common  to  persons  of  like  tige  and  experience,  know 
and  appreciate,  but  not  others.  Mundhenke  v.  Oregon  dty-M/g.  Co.  127 

Contributory  Negligence  by  Obeying  Orders  of  Superior. 

8.  A  common  laborer  in  a  railroad  construction  crew,  superintended  by  a 
foreman  having  charge  of  both  the  laborers  and  the  operatives  of  a  ballast  train, 
has  a  right  to  assume  that  the  foreman  will  not  needlessly  expose  him  to  danger, 
and  is  not  guilty  of  contributory  negligence  In  going  between  the  cars  of  the 
train  to  couple  the  air  hose  in  obedience  to  the  foreman's  order,  without  notify- 
ing the  trainmen  of  his  action.  Sorenson  v.  Oregon  Power  Oo.  24. 

Negligence  of  Master  — Contributory  Negligence   of   Servant  — 
Question  for  Jury— A.s.sumei)  Risk. 

9.  Whether  a  master  was  negligent  in  regard  to  the  causes  of  an  injury  to  a 
servant  caused  by  his  hand  being  caught  in  exposed  cogwheels  as  he  was  falling 
on  a  slippery  floor  where  he  was  obliged  to  work,  and  whether  the  immature 
servant  was  guilty  of  contributory  negligence  under  the  circumstances,  are  prop- 
erly left  to  the  Jury,  since  their  determination  involves  questions  of  care  and 
precaution  by  both  parties.  Mundhenke  v.  Oregon  City  M[fg.  Co.  127. 


676  Index. 

Danger  of  Exposed  Cogs  and  Qearing  an  Assumed  Risk. 

10.  Tbe  danger  from  exposed  cogs  and  gearing  is  obvious  even  to  a  boy  of  sev- 
enteen, and  U  fairly  a  risk  the  danger  of  which  heasHumes  by  remaining  at  work 
in  the  exposed  position.  Mundhenke  v.  Oregon  City  Mfg.  Cb.  \.'I7. 

Contributory  Negligence  — Failure  to  Recall  Known  Danger. 

11.  The  rule  enforclble  between  master  and  servant,  that  when  the  latter  Ir 
called  upon  to  quickly  perform  a  service,  he  is  not  negligent  in  fkillng  to  recall 
a  known  danger,  does  not  apply  between  persons  not  having  reciprocal  duties 
and  obligations.  Carroll  v.  Grande  Rtnde  Blee.  Cto.  424.. 

MEASURE  OF  DAMAGES. 

Conversion  of  Chattels  by  Mortgagee  Thereof.  See  Chattel  Mortoaobb,  1. 

MECHANICS'  LIENS. 

Agency  of  Contractor  for  Owner. 

1.  Section  6640,  B.  <&  C.  Comp.,  making  a  contractor  for  a  building  or  improve- 
ment the  agent  of  the  owner,  creates  an  agency  to  bind  such  owner  and  his 
property  included  in  the  contract  for  the  reasonable  value  of  materials  used  and 
labor  employed  on  the  work,  but  It  does  not  create  an  agency  to  determine  the 
value  of  such  materials  or  labor.  Quaekenbush  v.  Artetian  Land  Oo.  803 

Waiver  of  Lien  by  Building  Contract. 

2.  Covenant  of  the  contractor  in  a  building  contract  that  he  will  not  allow 
"any  lien  or  liens  to  be  filed,"  and  "that  the  said  building  and  premises  «  •- 
shall  be  at  all  times  free  from  any  and  all  liens,*'  is  a  waiver  of  tbe  contractor's 
own  right  to  claim  a  lien.  Orap  v.  Jonea,  40u 

Computation  of  Time  Allowed  to  File. 

8.  The  time  within  which  a  claim  of  lien  must  be  furnished  is  computed  by 
excluding  the  day  on  which  the  right  accrues  and  including  enough  days  there- 
after to  make  the  period  allowed.  Horn  v.  United  Slates  Mining  Cb.  124. 

MENTAL  CAPACITY.    See  Wills. 

MERGER. 

Lien  of  Attachment  — Merger  in  Judgment. 

Where  a  Judgment  quasi  In  rem  is  rendered  against  attached  property,  direct- 
ing it  to  be  sold  to  satisfy  the  debt  of  the  attacking  creditor,  the  right  which  the 
latter  has  secured  by  the  seizure  under  the  writ  of  attachment  becomes  merged 
in  the  lieu  of  the  Judgment.  Oliver  v.  Wright^  822. 

METEORS.    Ownership  of.    See  Mines,  4. 

MIGRATORY  STOCK. 

Validity  of  Law  of  1905  Taxing  Cattle  and  Sheep.    See  Taxation,  1. 

MINES  AND  MINERALS. 

Enforcement  of  Liens  Not  Obligatory. 

1.  The  perfecting  and  enforcing  of  a  Hen  Is  a  privilege  granted  by  the  statute  ' 
that  may  be  waived  or  claimed  by  the  lienor  at  his  pleasure,  but  If  he  elects  to 
claim  it,  he  must  comply  with  the  conditions  attached  to  the  grant. 

Jforn  V.  UnUed  States  Mining  Oo.  121. 
Perfecting  Miners'  Liens  — Time  for  Filing  Claim. 

2.  Under  a  statute  requiring  every  laborer  entitled  to  a  claim  of  lien  upon  a 
mine  to  file  his  claim  with  tbe  county  clerk  within  a  stated  time  after  ceasing  to 
labor  therein,  the  filing  of  the  lien  within  the  time  prescribed  by  tbe  statute  is  a 
condition  precedent  to  the  preservation  by  the  laborer  of  the  Inchoate  right  of 
lien  arising  from  the  performance  of  the  work,  and  if  It  is  not  observed  the  Hen  la 
lost.  Horn  v.  United  StaUs  Mining  Cb.  124. 


Index.  677 

Computation  op  Time  for  Filing  Lien. 

8.  Under  a  statute  requlrlnf?  every  laborer  entitled  to  a  claim  of  lien  on  a  mine 
to  file  the  same  with  the  county  clerk  within  a  stated  time  after  ceasing  to  labor 
tbei*eln,  the  time  within  which  to  Hie  a  lien  is  reckoned  by  excluding  the  first 
<the  last  day  of  service  in  the  mine)  and  including  the  last  day  of  the  period 
prescribed.  Horn  ▼.  United  States  Mining  Oo,  124. 

Property  Quality  of  Meteorites. 

4.  Meteorites,  though  not  Imbedded  in  the  earth,  are  real  estate,  and  conse- 
quently belong  to  the  owner  of  the  land  on  which  they  are  foujad,  in  the  absence 
of  proof  of  severance.  Oregon  Iron  Oo.  v.  Hughes,  313. 

Meteorite  —  Evidence  of  Severance. 

5.  Mere  evidence  of  a  tradition  that  Indians  reverenced  a  meteorite,  washed 
their  faces  in  the  water  contained  therein,  and  treated  It  as  a  kind  of  magic  or 
medicine  rock  belonging  to  the  medicine  men  of  the  tribe,  and  that  there  were 
fantastic  holes  therein,  thought  to  have  been  made  by  the  Indians,  is  notsuffl- 
•cient  to  justify  an  inference  that  the  Indians  severed  the  meteorite  from  the 
realty,  and  thereafter  abandoned  it,  so  that  the  next  finder  became  entitled  to  it. 

Oregon  Iron  Oo.  v.  Hughes,  818. 
JtflSCONDUCT  OF  TRIAL  JUDGE. 

Invading  Province  of  Jury.    See  Trial,  2. 

MISTAKE. 

Signing  Stipulation  Based  on  False  Statement.    See  Appeal,  20. 
Need  of  Mutuality  to  Avoid  Written  Contract.    See  Reform  of  Inst.  1. 

MITIGATION  OF  DAMAGES. 

Claim  of  Mitigation  Must  be  Specially  Pleaded.  See  Damages,  8. 
Example  of  Insufllcient  Plea  in  Mitigation.    See  Chattel  Mortgages,  2. 
School  Directors  —  Forbidden  Purchases^.    See  Libel  a  Slander,  7. 

MONEY  RECEIVED. 

Sufficiency  of  Complaint. 

1.  Under  B.  A  C.  Com  p.  g^  &4,  tf7,  providing  that  all  forms  of  pleading  in  actions 
at  law  are  abolished,  and  that  the  complaint  shall  contain  a  concise  statement  of 
the  cause  of  action,  a  complaint  showing  that  defendant  received,  as  agent  of 
plaintiff,  certain  sums  belonging  to  piaintifl',  and  that  plaintiff  has  demanded 
payment  thereof,  is  sufficient,  in  the  absence  of  demurrer  or  motion  relating 
thereto,  notwithstanding  a  failure  to  allege  that  the  money  was  paid  to  defendant 
for  the  use  of  plaintiff,  or  that  he  promised  to  pay  it  to  plaintiff. 

Keene  v.  Mdriedge,  179. 
Evidence  as  to  Circumstances. 

2.  In  an  action  for  money  received,  evidence  that  the  money  was  paid  to  the 
defendant  at  plalntifTs  request,  offered  as  tending  to  show  that  the  money  equita- 
bly belonged  to  plaintiff,  Is  admissible,  notwithstanding  the  lact  that  the  com- 
plaint contains  no  allegation  of  defendant's  promise  to  pay  plaintiff  the  money 
received,  the  promise  being  implied,  if  not  stated.  Keene  v.  Eldriedge,  179. 

Variance. 

8.  Under  an  allegation  of  money  received  for  plaintiff's  account,  it  is  not  a 
variance  to  show  that  plaintiff  conveyed  certain  land  to  defendant,  who  was  to 
sell  it  and  pay  a  stated  debt,  retaining  an  agreed  sum  out  of  the  balance  for  plain- 
tiff. •  Keene  v.  Eldriedge,  179. 
MONUMENTS. 

Relative  Influence  of  Distances  and  Monuments.    See  Boundaries,  1. 

MORTGAGES. 

Effect  of  Instrument  Conveying  Security. 

1.  An  instrument  conveying  property  as  a  security  for  a  debt  is  in  equity  a 
mortgage,  whatever  may  be  its  form.  Marquam  v.  Ross,  374. 


678  Index.   , 

Construction  of  Trust  Agbebment  — Mortgagee  in  Possession. 

2.  Plaintiff,  owning  cerlaiu  property  largely  Incumbered,  applltd  lo  a  trust 
company  to  secure  him  a  mortgage  loan  thereon.  The  trust  company,  being- 
unable  to  obtain  the  amount  required,  agreed  to  Itself  loan  the  balance.  In  con- 
sideration of  plaintiff  executing  a  deed  of  the  property  to  it,  and  a  certain  decla- 
ration of  trust  and  agreement,  which  provided  that  the  conveyance  was  in 
consideration  of  securing  the  loan  and  In  secret  trust  for  the  purpose  thereafter 
set  out,  stipulating  for  compensation  to  the  trust  company  for  its  services  in 
managing  the  property,  collecting  rents  and  profits,  and  to  secure  advances.  The 
agreement  vested  no  power  of  sale  in  the  trust  company,  nor  did  It  authorize  It 
to  convert  the  property  Into  money.  Held^  that  the  trust  company  was  a  second 
mortgagee  in  possession  as  to  the  title,  and  that  the  trust  created  was  confined  to 
the  possession  and  management  of  the  property,  together  with  the  collection  and 
disbursement  of  the  rents  and  profits,  and  was  therefore  terminated  on  the  fore- 
closure of  the  mortgage,  as  the  trustee  thereafter  had  no  duties  to  perform. 

Marquam  v.  Ro8»^  374. 
Construction  of  Agreement. 

3.  The  supplemental  agreement  under  ^consideration  here  was  in  effect  a 
mortgage  of  the  property  therein  described  to  the  trustee  for  the  benefit  of  a 
named  creditor,  and  it  did  not  change  the  conditions  created  by  the  original  con- 
tract between  the  same  parties.  Marqtuvm  v.  Robs^  :{74. 

Recording  Acts— Validity  of  Assignment  of  Note  and  Mortgage- 
Construction  OF  Word  "May." 

4.  Section  5:{07,  B.  A  C.  Com  p.,  enacted  in  1888,  providing  for  the  release  of 
mortgages  by  the  holders  of  the  notes  thereby  secured,  is  not  modified  or  repealed 
by  Sections  5362,  5368,  and  58({8,  or  any  of  them,  providing  that  mortgages  "  may'* 
be  assigned  by  written  Instruments,  which  ** shall"  be  recorded  In  the  public 
records,  and  that  no  mortgage  shall  be  released  except  by  the  person  appearing 
by  the  county  records  to  be  the  owner  thereof,  the  word  "  may  "  in  Section  S3(S2 
being  used  permisslvely  and  not  imperatively.  Barringer  v.  Loder,  223. 

Nature  of  Mortgage  in  Oregon. 

5.  In  Oregon  a  mortgage  of  real  estate  creates  only  a  Hen  thereon,  the  title 
remaining  in  the  mortgagor,  or  his  successor  in  interest,  until  the  issuance  of  a 
sheriff's  deed  in  due  course  of  law.  Kastan  v.  Storey 1 150. 

Effect  of  Power  of  Sale  in  Deed  of  Trust. 

6.  An  authority  to  sell  contained  in  a  conveyance  of  property  In  inist  doe» 
not  authorize  a  sale  except  by  a  foreclosure  and  decree,  under  Section  42S,  B.  A.  C. 
Comp.,  providing  that  a  lien  upon  real  or  personal  property,  other  than  that  of  a 
Judgment  or  decree,  must  be  foreclosed  by  a  suit  in  equity. 

Marquam  v.  itoM,  874. 
Right  of  Mortgagee  in  Possession  to  Purchase. 

7.  A  mortgagee  in  possession,  though  in  .<«ome  sense  a  trustee,  is  qualified  to 
purchase  the  security  when  It  is  sold  at  execution  sale  under  his  own  or  a  prior 
lien,  as  a  means  of  protecting  his  own  claim.  Marqiiam  v.  iZou,  374. 

Loss  of  Mortgage  as  Notice  to  Purchaser. 

8.  A  purchaser  of  a  lost  ihortgnge  is  put  on  inquiry  as  to  the  true  ownership 
by  the  absence  of  the  instrument,  and  buys  at  his  peril,  unless  he  may  rely  abso- 
lutely on  the  record,  regardless  of  his  personal  knowledge. 

Barringer  v.  LodeVy  223. 
Foreclosure  — Plea  in  Abatement. 

9.  In  a  mortgage  foreclosure  suit  a  plea  that  the  mortgage  was  not  validly 
assigned  to  plaintiff  will  not  be  considered  if  Joined  with  a  plea  in  bar,  but  will 
be  ignored.  Lcusas  v.  McOarty,  474. 


Index.  679 

FOKECLOSUKK  — Nature  of  Order  Decreeing  Right  to  Redeem. 

10.  An  order  adjudging  that  a  party  Is  entitled  to  redeem  from  a  mortgage 
Bale,  fixing  the  amount  to  be  paid  and  the  time  within  which  the  redemption 
must  be  made,  and  determining  all  the  rights  of  both  parties  in  and  to  the  prop- 
erty, but  reserving  the  details  of  an  accounting  for  the  rents  and  the  dlHtribution 
of  the  redemption  fund,  is  a  final  order  determining  the  rights  of  the  parties, 
which  is  appealable,  within  the  meaning  of  Section  517,  B.  &  C.  Com  p. 

Marquam  v.  /?o«s,  374. 
Foreclosure  — Operation  and  Effect. 

11.  Where,  pending  foreclosure  of  a  mortgage,  a  creditor  of  the  mortgagor 
recovers  and  dockets  a  Judgment  against  him,  and  thereafter  a  subsequent 
grantee  of  the  mortgagor  redeems  the  property  from  the  sale  under  the  fore- 
closure decree,  thft  Judgment  creditor  thereupon  becomes  entitled  to  enforce 
such  Judgment  against  the  land,  the  foreclosure  enforcement,  which  was  para- 
mount to  the  Judgment,  being  removed  by  the  redemption  operation  and  effect 
of  foreclosure.  Kastan  v.  Storey ^  150 . 

Effect  of  Redemption  by  Grantee  of  Mortgagor  After  Sale. 

12.  Under  Section  250,  B.  &  C.  Comp.,  providing  that  a  Judgment  debtor  or  his 
successor  in  interest  may  at  any  time  prior  to  confirmation  of  the  sale,  and 
within  a  year  thereafter,  redeem  the  property  by  paying  the  purchclse  money, 
with  interest,  taxes,  etc.;  and  section  427,  providing  that  a  decree  of  foreclosure 
shall  bar  the  equity  of  redemption,  but  that  property  sold  on  execution  issued  on 
a  decree  may  be  redeemed  in  like  manner  as  property  sold  on  an  execution  on  a 
Judgment,  a  redemption  ttoui  a  sale  on  a  foreclosure  decree  by  a  grantee  of  the 
mortgagor  who  acquires  title  after  the  sale  terminates  all  proceedings  under  the 
order  of  sale  and  leaves  the  property  as  though  no  steps  had  been  taken  to  en- 
force the  decree.  KaaUm  v.  Storey ^  150. 

MOTION. 

Quashing  Execution  as  an  Adjudication  of  Title.    See  Judgment,  6. 
Striking  Out  Part  of  an  Information.    See  Criminal  Law,  2. 

MUNICIPAL  CHARTERS.    Same  as  Charters  of  Cities. 

MUNICIPAL  CORPORATIONS. 

Portland  Charter  — Constitutionality  of  Sections  400  and  401. 

1.  Section  400  of  the  Portland  Charter  of  1908  is  not  void  under  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States,  or  under  sections  10  or  IB 
of  Article  I  of  the  Constitution  of  Oregon,  and  it  is  retroactive  in  its  eflTect,  and 
section  401  of  said  charter  is  not  void  under  Const.  Or.  Art.  VII,  g  9. 

Duniivay  v.  Portland,  108. 
Construction  of  Section  400  of  Portland  Charter  of  1908. 

2.  Section  400  of  the  Portland  Charter  of  1908,  relating  to  reassessing  benefits 
received  through  void  public  improvements,  is  Intended  to  afford  the  city  a 
supplementary  remedy  for  collecting  the  costs  of  Improvements  undertaken  In 
good  faith,  but  annulled  by  the  courts.  Duniway  v.  Portland,  103. 

Conclusiveness  of  Action  of  Council  in  Reassessing. 
'  8.  Under  Portland  Charter  of  190:1.  g  400,  authorizing  a  reassessment  for  local 
improvements  in  case  of  the  invalidity  of  the  original  a8seMsnient,and  requiring 
notice  of  the  reassessment  to  be  given  to  abutting  property  owners,  so  that  they 
may  file  objections  thereto,  and  further  requiring  a  hearing  on  such  objections 
and  a  determination  of  their  validity,  the  determination  of  the  council  that  the 
objections  are  invalid  is  conclusive,  and  the  question  cannot  be  collaterally 
raised,  unless  the  council  has  proceeded  fraudulently  In  making  the  reassess- 
ment. Duniway  v.  Portland,  103. 


680  Index. 

Charging  Fraud  of  Councii^  on  Reassessment. 

4.  Iti  atfacklng  the  good  fnUh  of  the  council  In  making  a  reansessment  under 
section  400  of  the  Portland  Charter  of  lyfti  the  fraud  alleged  must  relate  lo  the 
new  proceeding.  Duniway  v.  Portland^  108. 

Reassessment  not  an  Abuse  of  Taxing  Power  — Constitution. 

5.  A  reassessment  for  local  Improvements,  under  Portland  Charter  of  193.5, 
g  400,  authorizing  such  reassessment  where  the  original  assessment  has  been 
adjudged  Invalid,  cannot,  in  the  absence  of  fraud  on  the  part  of  the  city  council 
In  making  the  reassessment,  or  the  board  of  public  works  In  accepting  the  Im- 
provement, be  regarded  as  an  attempt  to  raise  money  for  the  private  use  of  the 
contractors  and  holders  of  warrants  under  the  taxing  power  of  the  municipality, 
In  violation  of  Const.  Or.  Art.  XI,  ^  9.  ZhmitOay  v.  JPorUand,  103. 

Notice  of  Resolution  to  Reassess  for  Local  Improvements. 

6.  ITnder  Portland  Charter  of  190S.  g  400,  authorizing  a  reassessment  for  local 
Improvements  in  case  of  the  invalidity  of  the  original  assessment,  the  council 
need  not,  in  the  absence  of  charter  requirement,  give  abutting  owners  notice,  nor 
afford  them  a  hearing,  prior  (o  adopting  the  resolution  directing  the  city  auditor 
to  prepare  a  preliminary  reassessment,  and  the  absence  of  notice  does  not  make 
the  proceeding  arbitrary.  Duniway  v.  Portland,  108. 

Requirements  of  Reassessment  Proceedings. 

7.  The  proceedings  connected  with  reassessing  property  for  local  improve- 
ments, under  section  400  of  Portland  Charter  of  190i,  are  entirely  statutory  and  no 
other  proceedings  or  forms  are  required  than  are  there  prescribed. 

Ihmiway  v.  Portland^  108. 
Sufficiency  of  Reassessment  Notice. 

8.  The  notice  of  reassessment  given  in  this  matter  under  section  400  of  the 
Portland  Charter  of  1U08  was  sufficient,  as  It  contained  every  statement  required. 

Duniway  v.  Portland,  IQA. 
Municipal  Corporations— Adjournment  of  Meeting  — Quorum. 

9.  A  charter  provision  that  a  less  number  of  the  council  than  a  quorum  may 
adjourn  from  time  to  time,  is  not  affected  by  an  ordinance  providing  that  if  a 
quorum  is  not  present,  the  chief  of  police  shall  notify  the  absentees  to  appear,  but 
if  they  still  absent  themselves,  the  members  present  shall  adjourn  to  the  next 
regular  meeting,  the  ordinance  applying  to  only  those  Instances  in  which  the 
chief  of  police  acts.  Therefore,  where  there  is  no  quroum  present  and  the  chief  of 
police  does  not  notify  the  absentees  to  attend,  the  members  present  may  adjourn 
to  a  date  speciallj'  set,  under  the  charter  section,  and  need  not  adjourn  to  the 
next  regMlar  meeting  in  accordance  with  the  ordinance. 

Duniivay  v.  Portland,  108. 

Effect  of  Reassessment  on  Original  Warrants.  . 

10.  The  reassessment  for  local  improvements,  provided  for  by  Portland  Char- 
ter, 1903, 1  400,  in  case  of  the  invalidity  of  the  original  assessment,  is  merely  sup- 
plementary to  the  regular  proceedings,  and  is  effective,  not  only  to  secure  a  valid 
assessmentof  benefits,  but  to  reach  back  and  validate  the  improvement  warrants 
issued  under  the  original  proceeding,  so  far,  at  least, as  the  reassessed  benefits  are 
sufllclent  for  that  purpose.  Duniway  v.  Portland,  103. 

Improving  Separate  Parts  of  Street  in  One  Proceeding. 

11.  Under  a  charter  providing  that  '•  the  improvement  of  each  street  or  part 
thereof  sliall  be  made  under  a  separate  proceeding"  (Portland  Charter  1903,  J  S75), 
the  city  cannot  divide  a  street  into  several  parts  and  direct  their  Improvement 
in  one  proceeding  with  different  classes  of  work  —such  a  proceeding  is  void. 

Ongon  Tranafer  Oo,  v.  Portland^  1. 


Index.  681 

Street  Impbovemenxs  — I^^jury  to  Abutting  Property. 

12.  Where  a  city,  In  gradln^f  a  street,  excrclHes  care  and  skill  In  doing  the 
work,  and  does  not  encroach  on  abutting  property,  any  Injury  to  such  property 
resulting  therefVom  Is  damnum  absque  inj uria.  Davit  v.  Silverton^  171. 

Effect  of  Acceptaxcb  of  Improvement  by  City  Authorities. 

13.  In  the  absence  of  fraud,  the  acceptance  of  a  local  improvement  by  the  pub- 
lic authorities  is  conclusive  as  to  the  manner  in  which  the  work  was  done,  as 
against  collateral  attack.  Duniway  v.  PorUand^  103. 

Effect  on  Improvement  Proceedings  — Injunction. 

14.  Where  a  city  by  valid  proceedings  authorlKes  the  grading  of  a  street  and 
assesses  benefits  against  the  abutting  property,  without  any  pretense  of  widen- 
ing the  street  or  of  appropriating  abutting  property  for  that  purpose,  the  fact 
that  its  officials  or  agents  in  making  the  Improvement  wrongfully  and  unlaw- 
fully, but  unintentionally  and  without  design,  encroach  upon  the  lots  of  an 
abutter,  does  not  invalidate  the  proceedings  or  authorize  the  abutter  to  enjoin  the 
collection  of  the  assessment  levied  against  him.  Davis  v.  Silvertont  171. 

Liability  of  City  for  Trespass  or  Unlawful  Ueizure. 

15.  A  municipal  corporation  has  no  more  right  to  encroach  upon  or  seize  pri- 
vate property  than  an  individual  has,  and  for  such  action  it  if*  liable  in  damages. 

DavU  V.  Silverton^  171. 
Effect  of  Encroachment  by  Municipality  on  Private  Property. 

16.  A  city  cannot  acquire  title  to  real  property  by  seising  it  or  committing  a 
permanent  trespass,  as  by  extending  or  widening  a  street  without  proper  pro- 
<}eedings  or  sufllcient  authority.  DavU  v.  SUverUm^  171. 

Proceedings  of  Municipal  Councils  — Presumption  of  Regularity. 

17.  In  the  absence  of  atllrmative  proof  to  the  contrary,  it  will  always  be  pre- 
sumed that  the  proceedings  and  adjournments  of  municipal  deliberative  bodies 
were  regular  and  valid.  Duniway  v.  Portland,  108. 

Deliberations  of  Council  — Continuance  of  Business. 

18.  A  motionof  a  city  council  thattbe  matterof  a  reassessment  be  "continued 
on  the  table"  until  the  next  regular  meeting,  while  expressed  in  inappropriate 
language,  should  be  construed  to  effect  a  continuance  of  the  business,  and  should 
not  be  construed  as  operating  to  lay  the  matter  on  the  table,  and  thereby  deprive 
the  council  of  Jurisdiction  thereof.  Duniway  v.  Portland,  108. 

Assessment— PRE.SUMPTION  OF  Regularity  of  Proceedings. 

19.  Where  the  minutes  of  the  meeting  of -a  city  council  do  not  show  what  was 
done  with  objections  to  a  reassessment  for  local  Improvements,  and  the  reassess- 
ment ordinance  was  passed  notwithstanding  the  objections,  it  will  be  assumed 
that  they  were  considered  by  the  council  and  found  to  be  without  merit. 

Duniway  v.  Portland,  108. 
Appeal  From  Municipal  Courts  — Review. 

20.  The  right  of  appeal  from  a  municipal  courtcannot  be  conferred  by  an  ordi- 
nance of  the  city,  and  the  remedy  in  such  cases  is  by  writ  of  review,  where  no 
appeal  Is  provided  for  by  the  charter.  Wong  Sing  v.  Independence,  231. 

Suit  to   Avoid  Street   Improvement  — Fraud— Allegations  as    to 
Board  of  Public  Works. 

21.  In  a  suit  to  annul  a  local  Improvement  assessment,  an  allegation  In  the 
complaint  that  the  board  ol  public  works  accepted  the  improvement  in  reliance 
upon  the  fraudulent  representations  of  the  contractors  and  the  city  engineer  is 
Insufnclent  to  charge  the  board  of  public  works  with  fraud  in  accepting  the 
Improvement.  Duniway  v.  Portland,  IQH. 

Limitation  on  Right  to  Vote.    See  Elections,  2. 


J 


682  Index. 

MUTUAL  FAULT  as  Affecting  Rights  of  PartleB.    See  Divorce,  2, 

MUTUAL  MISTAKE. 

Necessity  and  Evidence  of  to  Correct  Contract.    See  Reform,  of  Inst.  1,  2. 

NEGLECT. 

Vacating  Judgment— Surprl.se—  Inadvertance.    See  Judgment,  1. 

NEGLIGENCE. 

Effect  of  Showing  Contributory  Negligence  by  Plaintiff. 

L  Where  It  appears  from  plalntlflTs  testimony  that  the  one  who  sustained 
injuries  was  also  guilty  of  negligence,  without  which  the  Injury  complained  of 
would  not  have  happened,  such  proof  will  defeat  a  recovery  as  a  matter  of  law. 

Carroll  v.  Grande  Monde  Elec,  Co,  42-4. 

Care  Required  to  Avoid  Danger. 

2.  The  law  imposes  on  one  sul  Juris  the  duty  of  using  ordinary  care  to  avoid 
known  dangers,  and  therefore  it  is  contributory  negligence  for  such  a  person  to 
voluntarily  assume  a  position  the  danger  of  which  he  appreciates  except  in  a 
case  of  master  and  servant.  Carroll  v.  Grande  Ronde  Klec.  Co.  421. 

Idem. 

8.  In  cases  not  between  master  and  servant  there  Is  no  distinction  between 
knowledge  of  the  existence  of  a  danger  and  the  assumption  of  the  risk  incident 
thereto.  Can-oil  v.  Grande  Ronde  Elec.  Co.  424. 

Effect  of  Forgetting  Known  Danger.    See  Master  a  Servant,  11. 
NEGOTIABLE  INSTRUMENTS    Same  as  Bills  &  Notes. 

NEW  TRIAL. 

Part  of  Verdict. 

Where  the  trial  court  deems  the  damages  rendered  for  personal  injuries 
excessive,  it  may  overrule  a  motion  to  set  aside  the  verdict  on  condition  of  a 
remittitur  of  the  excess  over  what  it  deems  proper. 

Sorermon  v.  Oregon  Power  Co.  24. 

New  Trial  for  Excessive  Damages.    See  Appeal,  10. 

NONEXPERT  EVIDENCE  of  Mental  Condition.    See  Evidence,  1. 

NOTES.    Same  as  Bills  a  Notes. 

NOTICE. 

Notice  to  Quit  —  Requisites  of—  Who  May  Give  —  Effect  of  Notice  to  Leave  or 
Pay  Higher  Rent  — Right  of  Agent  or  Attorney  to  Give.  Ste  Landlord  a 
Tenant,  2,  8,  4,  5. 

OBJECTION  NOT  MADE  IN  TRIAL  COURT.  Waiver  of.  See  Pleading,  16. 

OBLIGATION  OF  CONTRACTS. 

Prohibition  of  Ticket  Brokerage  Does  Not  Affect  Contracts.  See  Const.  Law,  6. 

OFFICERS. 

Principal  and  Surety— Right  to  Deliver  Incomplete  Instrument. 

Where  a  .sheriff  delivered  a  bond  to  the  county  court,  without  signing  the 
same  himself,  without  the  names  of  any  of  the  sureties  except  one  being  entered 
therein  or  certain  other  sureties  qualifying,  and  without  obtaining  the  signatures 
of  sureties  sufflcient  to  complete  the  bond,  the  liability  of  the  sureties  who  had 
signed  the  bond  depends  on  whether  the  sheriff  had  authority  to  deliver  the  un- 
completed and  Imperfect  instrument  as  their  act  and  deed,  and  not  on  whether 
there  was  any  definite  understanding  or  agreement  between  the  sheriff  and  such 
sureties  at  the  time  the  Instrument  was  signed  by  them,  that  it  bhould  not  be  so 
delivered.  Baker  County  v.  Huntington^  32S. 


Index.  683 

official  bonds. 

Right  to  Deliver  Uncompleted  Bond.    Hee  Officers. 
Implied  Authority  to  Deliver  Bond.    See  Princ.  a  Surety. 

OFFSET.    Opposing  Judgments.    See  Equity,  1,  2. 

OPENING  DEFAULT.    See  Judgment,  1. 

ORAL  DECLARATIONS. 

When  Against  Interest  — Caution  Necessary.    See  Morffan  v.  8hau\  p.  336. 

ORDER  OF  PROOF  is  Discretionary.    See  Criminal  IjAW,  5. 

OREGON  CASES  Approved,  Applied,  Cited,  and  Distinguished  in  This  Volume: 
Abbot  V.  Oregon  Railroad  Co.  40  Or.  549,  followed,  436. 
Adair  v.  Adair,  22  Or.  115, 132,  followed,  -107. 
Adcock  V.  Oregon  Railroad  Co.  -lo  Or.  173,  followed,  33. 
Ah  Lep  V.  Gong  Choy,  13  Or.  429,  430,  dlsLlnguished,  193, 195. 
.  Aiken  v.  Aiken,  12  Or.  203,  cited,  160. 
Albert  v.  Salem,  89  Or.  466,  cited,  192. 
Ames'  Will,  40,  Or.  495,  followed,  313. 
Anderson  v.  Baxter,  4  Or.  105,  approved,  152. 
Anderson  v.  Oregon  Railroad  Co.  45  Or.  211,  224,  608. 
Astoria  Railway  Co.  v.  Kern,  44  Or.  538,  approved,  80, 870. 
Auspland  v.  JEtn&  Indemnity  Co.  47  Or.  10,  cited,  46. 

Baker  v.  Williams  Banking  Co.  42  Or.  213,  cited.  382. 

Bamberger  v.  Gelser,  24  Or.  201,  followed,  229. 

Bank  of  Columbia  v.  Portland,  41  Or.  5,  applied,  4. 

Barlow  v.  Taylor  Mln.  Co.  20  Or.  132.  distinguished,  145. 

Barnes  v.  Leldlgh,  46  Or.  43,  46,  cited  in  foot  note,  603. 

Barrett  v.  Barrett,  6  Or.  411,  cited,  468. 

Bartel  v.  Mathlas,  19  Or.  482,  followed,  370. 

Basche  v.  Prlngle,  21  Or.  24,  cited,  158,  881. 

Beacannon  v.  Llebe,  11  Or.  443,  cited,  150. 

Belflls  V.  Flint.  15,  Or.  158,  cited,  160. 

Benfleld  v.  Benfleld,  44  Or.  94,  approved,  616. 

Bennett  v.  Mlnott,  28  Or.  339,  followed,  468. 

Bloch  V.  Sammons,  37  Or.  600,  approved,  50. 

Bloomfield  v.  Humason,  11  Or.  229,  followed,  100. 

Bowen  v.  Emmerson,  3  Or.  452,  approved,  182. 

Boyd  v.  Portland  Electric  Co.  40  Or.  126  cited  434,  in  foot  note,  603. 

Bradtfeldt  v.  Cooke,  27  Or.  194,  followed,  485. 

Bl^ndt  V.  Brandt,  40  Or.  477,  cited,  617. 

Brown  v.  Baker,  39  Or.  66,  approved,  337. 

Brownfleld  v.  Houser,  80  Or.  534,  approved,  55. 

Bruce  v.  Phoenix  Ins.  Co.  2i  Or.  4H6,  492,  followed,  870. 

Buchanan  v.  Beck,  15  Or.  563,  approved,  181,  183. 

Buchtel  V.  Evans,  21  Or.  300,  applied,  506. 

Burness  v.  Multnomah  County,  87  Or.  4(K),  approved,  54. 

Burnett  v.  Douglas  County,  4  Or.  3K8,  applied,  209. 

Butler  V.  Smith,  20  Or.  126,  cited,  160. 

Bybee  v.  Summers,  4  Or.  354,  cited,  380. 

Carlyle  v.  Sloan,  44  Or.  357,  approved,  181. 
Carothers  v.  Wheeler,  1  Or.  194,  followed,  126. 
Cartwrlght  v.  Savage,  5  Or,  397,  cited,  153. 
Chamberlain  v.  Hlbbard,  215  Or.  42S,  applied,  86,  477. 
Chance  v.  Portland,  26  Or.  286,  approved,  112. 
City  of  Portland  v.  Meyer,  32  Or.  368,  371,  applied,  500. 


€84  Index. 

Clark  V.  Wick,  25  Or.  446,  applied.  506. 

Clioe  V.  Greenwood.  10  Or.  280,  cited,  590. 

Cole  V.  Neustadter,  22  Or.  191,  cited,  516. 

Conant's  Estate,  43  Or.  530,  applied,  619. 

Con  Ion  V,  Oregon  Short  Line  R.  Co.  23  Or.  499,  followed,  607. 

Coolldge  V.  Heneky,  11  Or.  327,  cited,  468. 

Cooper  Mfg.  Co.  v.  Delahunt,  36  Or.  402,  applied,  806. 

Cooe  Bay  Nav.  Co.  v.  Endicott,  S4  Or.  573,  followed,  84. 

Cox  V.  Alexander,  80  Or,  488,  followed,  486. 

Crawford  v.  Beard,  12  Or.  447,  followed,  468,  590. 

Crawford  v.  Linn  County,  11  Or.  482,  approved,  140. 

CroBsen  v.  Grandy,  42  Or.  282,  287,  cited  in  footnote,  603. 

Crown  Cycle  Co.  v.  Brown,  39  Or.  285,  cited,  98. 

Carrie  v.  Bowman,  25  Or.  864,  approved,  102,  220. 

Danlelson  v.  Roberts,  44  Or.  108,  cited,  62. 

Dan  vers  v.  Durkln,  14  Or.  37.  cited,  160. 

Davis  V.  Davis,  20  Or.  78,  approved,  18,  468. 

Davis  Y.  Hladden,  17  Or.  259,  cited,  516. 

Dawson  v.  Sims,  14  Or.  561,  followed,  468. 

J>ecbenbach  v.  Rima,  45  Or.  500,  cited,  160. 

Deering  v.  Quivey,  26  Or.  556,  distinguished,  196,  611,  619. 

Derkeny  v.  Belflls,  4  Or.  258,  applied,  86. 

Dickson  V.  Back,  32  Or.  217,  distinguished,  823,  327. 

Dimmick  v.  Rosenfeld,  34  Or.  101, 105,  followed,  871. 

Dodd  V.  Home  Mut.  Ins.  Co.  22  Or.  8,  approved,  178. 

Dodge  V.  Marden,  7  Or.  457-460,  applied,  580. 

Dray  v.  Dray,  21  Or.  50,  66,  approved,  152. 

Dubiver  v.  City  Ry.  Co. 44  Or.  227,  applied,  182. 

Duff  V.  Willamette  Steel  Works,  45  Or.  479,  applied,  606. 

Eddy  V.  Kincaid,  28  Or.  537,  followed,  600. 

Elder  v.  Rourke,  27  Or.  863,  followed,  477. 

Elfelt  v.  Hinch,  5  Or.  255,  approved,  102,  468. 

Epping  v.  Washington  Invest.  Assoc  44  Or.  116,  cited,  91. 

Epstein  v.  State  Ins.  Co.  21  Or.  179,  applied,  649. 

Evans  v.  Christian,  4  Or.  875,  applied,  619. 

Farrell  v.  Oregon  Gold  Co.,  31  Or.  463,  applied,  59. 

Ferguson  v.  Ray,  44  Or.  557,  distinguished,  313,  322. 

Fiore  v.  Ladd,  29  Or.  528,  followed,  477. 

Fire  Association  v.  Allesina,  45  Or.  154,  followed,  160. 

1*  Irst  National  Bank  v.  Mack,  35  Or.  122,  followed,  485. 

Fitch  V.  Howitt,  32  Or.  896,  applied,  306 

Flanders  v.  Aumach,  32  Or.  19,  approved,  153. 

Flynn  v.  Baisley,  3o  Or.  268,  cited,  468. 

Forsythe  v.  Pogue,  25  Or.  481,  cited,  160. 

Frink  v.  Thomas,  20  Or.  265,  distinguished,  573,  578. 

Fulton  V.  Earhart,  4  Or.  61,  applied,  76. 

Gardner  v.  McWllliams,  42  Or.  14,  applied,  63, 
Garhsey  v.  County  Court,  33  Or.  201,  207, .approved,  206. 
George  v.  Nowlan,  38  Or.  537,  applied,  446. 
Glen  V.  Savage,  14  Or.  567,  approved,  281. 
Goltra  V.  Penland,  45  Or.  254,  applied,  583. 
Good  V.  Smith,  44  Or.  578,  approved,  76. 
Gorman  v.  McGowan,  44  Or,  597,  approved,  76. 
Grady  v.  Dundon,  30  Or.  3:«,  cited.  215. 


Index.  685 


Hallock  Y.  Portland,  *29,  8  Or.  approved,  80. 
Hammer  v.  Downing,  88  Or.  .504,  approved,  803. 
Hand  Mtg.  Co.  v.  Marks,  36  Or.  52:3,  applied,  42. 
Harrington  v.  Watson,  11  Or.  143,  cited,  lt»,  167. 
Harris  v.  Burr,  82  Or.  S48,  cited,  251,  255,  590. 
Hawkins  v.  Donnerberg,  40  Or.  97,  approved,  18. 
Hawley  y.  Dawson,  16  Or.  344,  followed,  34. 
Hayes  v.  Horton,  46  Or.  597,  followed,  326. 
Heatherly  y.  Hadley,  2  Or,  260,  applied,  506. 
Helney  v.  Helney,  43  Or.  577.  cited.  160. 
Henderson  v.  Henderson,  37  Or.  14 :,  cited,  616. 
Henricbsen  v.  8ml tb,  29  Or.  475,  cited,  196. 
Hlcklin  v.  McClear,  18  Or.  128,  applied,  76,  214. 
Hlndman  v.  Rizor,  21  Or.  112, 119,  applied,  580. 
Hislop  v.  Moldenhauer.  21  Or.  208,  cited,  160, 167. 
Hlslop  V.  Moldenbauer,  21  Or.  106.  cited,  626. 
Hobkirk  y.  Portland  Baseball  Club,  44  Or.  605.  cited,  44. 
Hop  wood  y.  Patterson,  2  Or.  49,  applied,  86,  477. 
Houston  y.  Zimmerman,  17  Or.  499,  approved,  154,  615. 
Howell  y.  Folsom,  88  Or.  184,  followed,  326. 
Hugbes  y.  Lansing,  84  Or.  118,  cited,  126. 
Hugbes  v.  Linn  County,  37  Or.  HI,  applied,  446. 
Hurford  y.  Harned,  6  Or.  362,  followed,  407. 

In  re  Jobn's  Will,  30  Or.  404,  approved,  64. 

In  re  Oberg,  21  Or.  406,  cited,  498. 

Irwin  y.  Wasbington  Loan  Assoc.  42  Or.  105,  cited,  91. 

Jameson  v.  Coldwell,  23  Or.  144,  applied,  506. 

Jennings  y.  Kiernan,  85  Or.  SJ9,  approved,  154. 

Jobn's  Will,  In  re,  80  Or.  494,  approved,  64. 

Jobnston  v.  Oregon  Sbort  Line  Ry.  Co.  23  Or.  94,  approved,  437,  506. 

Kalyton  y.  Kalyton,  45  Or.  116, 180,  approved,  577. 

Kearney  v.  Bnodgrass,  12  Or.  811.  followed,  490. 

Kiernan  v.  Kratz,  42  Or.  474,  dlstinguisbed,  98. 

Kimball  v.  Redfleld,  38  Or.  292,  followed,  61. 

King  V.  Brlgham,  19  Or.  560v  cited,  192. 

King  Real  Estate  Assn.  v.  Portland,  23  Or.  199,  applied,  280. 

Kleinsorge  y.  Rohse,  25  Or.  51,  applied,  549. 

Knott  v.  Sbaw,  5  Or.  482,  followed,  827. 

Konigsberger  v.  Harvey,  12  Or.  286,  applied,  506. 

Kyle  V.  Rlppy,  19  Or.  186,  cited,  76. 

La  Grande  Nat.  Bank  v.  Blum,  27  Or.  215,  followed,  607. 

Ladd  y.  Jobnson,  82  Or.  195,  approved,  408. 

Ladd  v.  Mason,  10  Or.  808,  applied,  619. 

Ladd  v.  Mills,  44  Or.  224,  applied,  99. 

Le  Clare  v.  Tbibault,  41  Or.  601,  cited,  150. 

Lemmons  v.  Huber,  45  Or.  282,  cited,  382. 

Lenz  V.  Blake,  44  Or.  569,  applied,  562. 

Lewis  y.  Birdsey,  19  Or.  164,  cited,  62. 

Lewis  V.  Lewis,  5  Or.  169,  applied,  549. 

Lewis  V.  Reeves,  26  Or.  445,  cited,  160. 

Llebe  v.  Nicolal,  80  Or.  364,  367,  followed,  870. 

Lleuallen  v.  MoRgrove,37  Or.  446,  453,  cited  in  footnote,  60S. 

Love  V.  Morrill,  19  Or.  546,  approved,  178. 

Lovejoy  v.  Cbapman,  23  Or.  571,  followed,  870. 

Lovcjoy  V.  Willamette  Locks  Co.  24  Or.  569,  applied,  37. 


I 

J 


687  Index. 

Male  V.  Scbaut,  41  Or.  4t25,  approved,  308. 

Marks  v.  Stephens,  88  Or.  65,  dlstlngulKhed,  08,  97. 

Marx  v.  La  Rocque,  27  Or.  45,  followed,  407. 

Massey  v.  Seller,  45  Or.  287,  followed,  435. 

Mayes  v.  Stephens,  38  Or.  512,  distinguished,  08. 

McAnish  V.  Grant,  41  Or.  cited,  160. 

McCall  V.  Porter,  42  Or.  49,  approved,  181. 

McCuUoch  V.  Esies,  20  Or.  349,  followed,  246. 

McKay  v.  Freeman,  6  Or.  449,  approved,  80. 

McQuald  v.  Portland  <fe  Van.  R.  Co.  19  Or.  5.J5,  followed,  34. 

Meier  v.  Hess,  23  Or.  500-601,  followed,  371. 

Ming  Yue  v.  Coos  Bay  Nav.  Co.  2i  Or.  392,  cited,  150. 

Mlnter  v.  Durham,  13  Or.  470,  followed,  209. 

Mitchell  v.  Uolman,  SO  Or.  280,  applied,  649. 

Moores  v.  Clackamas  County,  40  Or.  536,  applied,  446. 

Morrell  v.  Miller,  28  Or.  3S4,  disUngulshed,  193,  196. 

Morrison  v.  McAtee,  23  Or.  630,  followed,  5S»,  607. 

Morse  v.  Union  Stock  Yards  Co.  2i  Or.  289,  applied,  662. 

Morton  v.  Denham,  39  Or.  227,  followed.  468. 

Murphy  v.  Sears,  11  Or.  12?,  applied,  416. 

Murray  v.  Murray,  6  Or.  26,  followed,  477. 

Neimitz  v.  Conrad,  22  Or.  164,  followed,  123. 

Nelson  v.  Oregon  R.  &  Nav.  Co.  13  or.  141,  followed,  84. 

Noblltt  V.  Beebe,  23  Or.  4,  followed,  326. 

Nosier  v.  Coos  Bay  Nav.  Co.  40  Or.  805,  308,  approved,  59. 

Nottage  V.  Portland,  86  Or.  589,  cited,  245. 

Oberg,  In  re,  21  Or.  406,  cited,  498. 

0*Hara  v.  Parker,  27  Or.  156,  followed,  126. 

Oregon  <&  California  R.  Co.  v.  Jackson  County,  38  Or.  589,  604,  cltiCd,  210. 

Pacific  Export  Co.  v.  North  Pac.  Lum.  Co.  46  Or.  194,  206,  in  foot  note,  603. 

Page  v.  Finley,  8  Or.  45,  followed,  490. 

Patterson  v.  Patterson,  40  Or.  560,  approved,  98, 181. 

Pearson  v.  Dryden,  28  Or.  350,  approved,  282. 

Phllbrick  v.  O'Connor,  15  Or.  15,  cited,  468. 

Pogue  V.  Simon,  47  Or.  6,  distinguished,  101. 

Raymond  v.  Flavel,  27  Or.  219,  248,  followed,  371. 

Rees  V.  Rees,  7  Or.  48,  approved,  616. 

Rhodes  v.  McGarry,  19  Or.  229,  followed,  371. 

Roberts  v.  Sutherlln,  4  Or.  219,  followed,  229. 

Robinson  v.  Taku  Fishing  Co.  42  Or.  5:^7, 511,  approved,  275. 

Rockwell  V.  Portland  Sav.  Bank,  .35  Or.  803,  cited,  881. 

Rose  v.  Wollenburg,  31  Or.  269,  approved,  71. 

Rosenblat  v.  Perkins,  18  Or.  156,  160,  165,  169. 

Roth  V.  Northern  Pac.  Lum.  Co.  18,  Or.  205,  approved,  437,  in  foot  note,  6« 

Ruckman  v.  Union  Ry.  Co.  45  Or.  578,  approved,  403. 

Rugh  v.  Ottenhelmer,  6  Or.  231,  applied,  506. 

Sabiii  v.  Columbia  Fuel  Co.  25  Or.  15,  approved,  102. 
Savage  v.  Savage,  36  Or.  268,  278,  cited  in  Utot  note,  603. 
Schwartz  v.  Gerhardt,  44  Or.  42%  followed,  382,  383. 
Security  Trust  Co.  v.  Loewenberg,  38  Or.  159,  followed,  407. 
Sell  wood  v.  Gray,  11  Or.  534,  approved,  152. 
Settlemlre  v.  Newsome,  10  Or.  446,  approved,  158, 155. 
Sliver  V.  Lee,  38  Or.  508,  followed,  100. 


Index.  687 

Simonds  v.  Wrtghtman,  36  Or.  120,  followed,  61. 

Slate  V.  Henkle,  45  Or.  480,  cited,  67. 

Slate's  Estate,  40  Or.  940,  applied,  619. 

Smith  V.  Farra,  21  Or.  805,  followed,  65M,  636. 

Smith  V.  Ingles,  2  Or.  4S,  followed,  7, 100,  102. 

Smith  V.  Reeder,  21  Or.  541,  cited,  160,  IHI,  167, 160. 

Smith  V.  S  hat  tuck,  12  Or.  »62,  followed,  209. 

SmitHon  v.  Southern  Pac.  Co.  37  Or.  74,  followed,  490. 

Spaur  V.  McBee,  19  Or.  76,  approved,  18. 

Stanley  v.  Smith,  16  Or.  605,  died,  245. 

State  V.  Anderson,  10  Or.  448,  applied,  602,  in  footnote,  603. 

State  V.  Armstrong,  43  Or.  207,  followed,  488. 

State  y.  Baker,  23  Or.  441,  distinguished,  285. 

State  V.  Bloodsworth,  25  Or.  88,  cited,  569. 

SUte  V.  Brown,  5  Or.  119,  ciied,  158. 

State  V.  Brown.  7  Or.  186,  205,  cited  in  footnote,  608. 

State  V.  Brown,  28  Or.  147,  165,  cited  In  footnote,  603. 

State  V.  Crockeit,  89  Or.  76,  dlstinKuished,  290. 

State  y.  Eggleston,  45  Or.  846, 869,  cited  in  footnote,  603. 

State  V.  Foot  You,  24  Or.  61,  followed,  378,  490. 

State  V.  Gray,  46  Or.  24, 31,  cited  in  footnote,  608. 

State  V.  Humphreys,  43  Or.  44,  applied,  237,  488. 

State  V.  Lee,  17  Or.  4^8,  followed,  349. 

State  V.  Lucas,  24  Or.  168,  distinguished,  527,  529. 

State  V.  Magers,  86  Or.  38,  cited  490,  in  footnote,  603. 

State  y.  McDaniel,  o9  Qr.  161,  distinguished,  285,  cited  in  footnote,  603. 

State  V.  Moore,  82  Or.  65,  approved,  345. 

State  V.  Morey,  25  Or.  241,  applied,  545. 

State  V.  O'Day,  41  Or.  495,  approved,  65. 

State  V.  O'Donnell,  36  Or.  222,  distinguished,  285. 

State  v.  Pennoyer,  26  Or.  205,  215,  distinguished,  193, 196. 

State  V.  Pomeroy,  30  Or.  17,  followed,  4«8. 

State  V.  Reinhart,  26  Or.  466,  applied,  473. 

State  V.  Roberts,  15  Or.  187, 197,  cited  in  foot  note.  608. 

State  V.  Sally,  41  Or.  366, 360,  cited  In  foot  note,  603. 

State  V.  Schuman,  36  Or.  16,  25,  applied,  500. 

State  V.  Security  Savings  Co,  2S  Or.  410,  cited,  381. 

State  v.  Smith,  47  Or.  485,  cited  in  foot  note,  608. 

State  V.  Sweet,  2  Or.  127,  applied,  473. 

State  V.  Thompson,  47  Or.  402,  followed,  640. 

State  V.  Tucker,  36  Or.  202,  306,  cited  in  foot  note,  603. 

State  ex  rel.  v.  Downing,  40  Or.  809.  cited,  382. 

State  ex  rel.  v.  Estes,  34  Or.  196,  204,  approved,  59. 

State  ex  rel,  v.  Lord,  28  Or.  498,  cited,  160, 

State  ex  rel.  v.  McKlnnon,  8  0r.  488,  applied,  619. 

State  ex  rel  v.  Simon,  20  Or.  36>%  approved,  4oO. 

State  V.  Williams,  46  Or.  'M7,  followed,  597. 

Stephens  v.  Allen,  11  Or.  188,  followed,  407. 

Stephens  v.  Murton,  6  Or.  im,  applied,  i>49. 

Sterling  v.  Sterling.  43  Or.  200,  cited,  3>S0. 

Stewart  v.  Phy,  11  Or.  335,  followed,  182. 

Taylor  v.  Scott,  10  Or.  483,  cited,  160, 167. 

Thomas  v.  Portland,  40  Or.  50,  approved.  111. 

Thomp-son  v.  Marshall,  21  Or.  171,  followed,  407,  408,  4*23. 

Thompson  v.  Wolf,  6  Or.  30S,  followed,  160. 

Trotter  y.  Town  of  Stay  ton,  45  Or.  301,  approved,  178. 


688  Index. 

Tucker  v.  Northern  Term.  Co.  41  Or.  82.  followed,  434. 
Twiss  V.  Boehmer,  89  Or.  350,  cited,  leo,  ltf7. 

Union  St.  Ry.  Co.  v.  First  Nat.  Bank,  42  Or.  006,  approved,  808. 
ITnlted  States  Mortgage  Co.  v.  Marquam,  41  Or.  30,  cited,  877. 
United  States  Mortg.  Co.  v.  Marquam,  41  Or.  301,  cited,  401,  408,  411,  416. 
Upton  V.  Hume,  2i  Or.  420,  approved,  024. 

Vlohl  V.  North  Pac.  Lum.  Co.  46  Or.  207,  approved,  437. 

Wadbaras  v.  Allen,  45  Or.  4a'S,  cited,  288. 

Wadhams  v.  Balfour,  32  Or.  318,  applied,  562. 

Walte  v.  Willis,  42  Or.  288,  followed.  182,  188. 

Washington  Invest.  Assoc,  v.  Stanley,  88  Or.  319,  cited,  01. 

Webb  V.  Nlckerson,  II  Or.  382,  cited,  507. 

Weber  v.  Weber,  16  Or.  168,  approved,  615. 

Welder  v.  Osborn,  20  Or.  807,  approved,  64. 

West  V.  Taylor,  16  Or.  165,  distinguished,  85S. 

Wetitern  Sav.  Co.  v.  Houston,  38  Or.  877,  cited,  01. 

Wetmore  v.  Wetmore,  6  Or.  400,  cited,  617. 

Wtaalen  v.  McMaban,  47  Or.  87,  approved,  170. 

Wheeler  v.  Burckhardt,  84  Or.  501,  applied,  77. 

White  V.  Espey,  21  Or.  328,  applied,  446. 

White  V.  Ladd,  41  Or.  324,  applied,  619. 

White  V.  Noithwest  Stage  Co.  5  Or.  00,  10),  applied,  87. 

Williams  V.  Gallick,  11  Or.  837,  followed,  80,  870. 

Williams  V.  Wilson,  42  Or.  290,  distinguished,  153,  155. 

Willis  V.  Crawford,  38  Or.  622,  cited,  150. 

Winkle  v.  Winkle,  8  Or.  103,  approved,  64. 

Winter  v.  Norton,  1  Or.  48,  followed,  86,  477. 

Woodward  v.  Oregon  Ry.  &  Nav.  Co.  18  Or.  280,  approved,  282. 

ORDINANCE  OF  CITIES. 
Independence,  No.    1,  p.  283. 
16,  p.  285. 

OREGON  CONSTITUTION.    Same  as  CONSTITUTION  of  Oregon. 

OREGON  STATUTES.    Same  as  Statutes  or  Obegon. 

OTHER  OFFENSES. 

Showing  Different  Crime  Incidental  to  That  Charged.    See  Crim.  Law,  5. 

OVERT  ACT. 

Example  of  Overt  Act  Toward  Arson.    See  Crim.  Law,  1. 

PARENT  AND  CHILD. 
Evidence  Considered. 

1.  The  evidence  shows  that  the  deed  under  consideration  here  was  intended 
by  the  father  as  an  absolute  conveyance  to  his  minor  son,  and  that  it  was  not 
conveyed  or  accepted  in  trust.  Seed  v,  Jenningt,  4W. 

Deed— Advancement— Parent  and  Child. 

2.  Property  voluntarily  conveyed  by  a  parent  to  a  child,  on  a  purported  con> 
sideration  of  love  and  affection,  is  presumptively  an  advancement,  and  the  deed 
conveys  the  title.  Seed  v.  Jenninge.  4(M. 

Conveyance  by  Infant  — Effect  of  Disaffirmance. 

3.  A  deed  by  a  minor  is  subject  to  disafflrmance  upon  attaining  majority,  and 
if  di-saflirmed,  such  deed  never  becomes  effective  to  convey  the  title. 

Seed  V.  Jenninge,  464. 


Index.  689 

parol  evidence. 

ExpIanatlOQ  of  Circumstances  of  Contract.    See  Evidence,  2. 

PAYMENT. 

What  Constitutes  a  Payment  of  an  Obligation. 

A  payment  of  a  pecuniary  obligation  Is  made  only  by  the  delivery  and  accept- 
ance  of  money  or  what  the  creditor  agrees  shall  be  its  equivalent. 

Steel  V.  Island  MiUing  Co,  208. 
PERJURY. 

Evidence  of  Knowledge  of  Falsity  of  Testimony. 

1.  Where,  in  an  action  for  injuries  alleged  to  bave  been  sustained  on  a  defec- 
tive city  sidewalk,  accused  testified  that  the  plaintiff  fell  into  a  hole  in  the  side- 
walk at  night,  and  fractured  bis  kneecap,  evidence  that  about  the  same  time 
such  injury  was  alleged  to  have  occurred  the  plaintiff  In  such  action  and  accused 
were  in  two  other  cities,  and  claimed  that  the  same  injury  occurred  on  their 
defective  streets,  until  a  physician  who  was  called  stated  that  the  Injury  was  of 
long  standing,  when  the  plaintiff  admitted  the  same  in  accused's  presence,  waa 
admissible,  as  showing  accused's  knowledge  of  the  fttUity  of  bis  evidence. 

State  y,8mUh,4S&. 
Showing  Knowledge  of  Falsity. 

2.  In  a  prosecution  for  perjury,  it  is  incumbent  on  the  State  to  show,  not  only 
that  the  accused  made  the  alleged  false  statements,  but  that  he  knew  them  to  be 
false,  or  that  he  stated  them  under  such  circumstances  that  knowledge  of  the 
falsity  would  be  imputed  to  him.  State  v.  Smithy  485. 

PERSONAL  INJURIES.    See  Damages,  Negligence,  Master  a  Servant. 

PHRASES.   Same  as  Words  and  Phrases. 

PLEA  in  Abatement.    Waiver  of  by  Answering.    See  Pleading,  14. 

PLEADING. 

Matters  of  Inducement  Are  Immaterial. 

1.  Matters  of  inducement  and  explanation,  not  constituting  a  part  of  the 
cause  of  action,  are  immaterial  and  may  be  stricken  out  on  motion. 

Oa»to  V.  Murray t  S7. 
Rule  for  Construing  Pleadings. 

2.  A  pleading  should  be  construed  against  the  pleader  in  case  of  doubt,  when 
considered  on  demurrer.  Darr  v.  Guaranty  Loan  Auoe,  88. 

Construction  of  Pleadings  When  Tested  at  Trial. 

8.  Wben  the  sufficiency  of  a  complaint  Is  challenged  by  a  demurrer  or 
motion  it  must  be  construed  more  strictly  against  the  plaintiff  than  when  the 
question  arises  on  the  admission  of  evidence,  in  which  case  all  intendments  are 
in  favor  of  the  complaint.  Keene  v.  Eldriedge^  179. 

Pleading  Facts  — Omitting  Conclusions. 

4.  A  pleading  should  state  the  facts  on  which  the  pleader  relies,  leaving  the 
conclusions  to  be  deduced  as  matters  of  law.    Darr  v.  Guaranty  Loan  Assoc.  88. 

Idem. 

5.  An  allegation  that  the  pleader  had  repaid  in  full  a  certain  loan,  is  merely 
a  statement  of  a  conclusion,  the  dates  and  amounts  of  the  payments  should 
bave  been  set  out.  Darr  v.  Guaranty  Loan  Assoc,  88. 

Controlling  Effect  of  Issues  in  the  ^leadings. 

6.  Cases  must  be  decided  on  tbe  issues  made  by  the  parties  through  their  plead- 
ings, and  rights  not  thus  asserted  cannot  be  considered. 

Kaston  v.  Storey^  ISO ;  Boothe  v.  Farmers  Nat,  Bank^  299. 
47  Or. 44 


690  Index. 

Idem. 

7.  In  a  suit  to  restrain  the  enforcement  of  an  execution  on  a  Judgment  by  a 
redemption  from  a  previous  sale  under  a  foreclosure  decree,  the  court  cannot 
consider  plaintiff's  right  to  be  subrogated  to  the  claim  of  the  foreclosure  creditor 
from  whom  he  redeemed,  as  the  suit  was  not  Instituted  for  that  purpose. 

KaHon  v.  Storey^  ISO. 
Idem. 

8.  In  an  action  to  recover  specified  sums  said  to  have  been  deposited  In  a 
bank,  where  it  Is  found  that  all  such  deposits  had  been  repaid  before  the  com- 
mencement of  the  action,  but  that  the  banic  owed  plalntlfl!'  other  sums  not 
mentioned  In  the  complaint,  no  Judgment  can  be  given  for  the  plainiiflT,  since  he 
failed  on  the  causes  of  action  stated  In  his  complaint. 

Boothe  r.  Farmers  National  Bank^  2W. 

Anticipating  Defense— Effect  of  Denial. 

0.  Where  a  defense  Is  anticipated  In  the  complaint  an  answer  denying  the 
all^atlons  raises  the  issue,  and  a  further  answer  setting  out  the  same  matter  of 
defense  that  was  denied  in  the  complaint,  is  redundentand  should  be  stricken 
out.  Autplund  V.  ^Ktfia  Indemnity  CO,  10. 

Joining  Legal  and  Equitable  Defenses. 

10.  Section  74,  B.  A  C.  Com  p.,  authorizing  a  defendant  to  set  forth  by  answer 
as  many  defenses  as  he  may  have,  does  not  permit  the  Joinder  of  lee:al  and 
equitable  defenses.  Vohn  v.  Wemme,  146. 

Matter  Provable  Under  Denials. 

11.  Under  the  Oregon  practice  a  defendant  can  prove  under  a  denial  of  material 
allegations  only  such  factsas  tend  to  disprove  the  cause  of  action  ;  butother  mat- 
ter In  the  nature  of  avoidance,  as,  a  claim  of  mitigation  of  damagex,  must  be 
specially  pleaded.  Springer  v,  JenkinSt  502. 

Plea  of  Attachment  in  Good  Faith  and  Witjiout  Notice  of  Out- 
standing Equities. 

12.  An  attaching  creditor.  In  order  to  be  deemed  a  purchaser  in  Kood  faith  as 
against  the  owner  of  an  outstanding  equity,  must  allege  and  prove  all  the  fkcts 
necessary  to  establish  that  character  of  his  ownership  as  against  the  equity  :  and 
a  reply  consisting  of  only  a  general  denial  of  the  claim  of  ownership  made  by 
defendants  in  their  answer  is  Insufficient  to  bring  plaintiff  within  the  statute. 

Megel  v.  A'o*«,  366. 
Reply  —  Departure. 

13.  Where,  in  an  action  to  determine  an  adverse  Interest  in  realestat«,  the 
complaint  alleged  that  pialntis;  since  March  19,  1903,  had  been  the  equitable 
owner  of  the  property  and  had  exclusive  po.stie.s8ion  thereof,  and  defendant 
denied  such  allegations,  and  averred  that  piaintifTs  grantor,  S.,  was  the  owner 
of  the  properly,  and,  being  indebted  to  M.,  the  latter  held  a  deed  to  the  premise!*, 
which  was  intended  as  a  mortgage  to  secure  the  indebtedness,  pending  which 
the  property  was  sold  under  a  Judgment  agaiubf  S.,  after  which  S.  conveyed  the 
land  to  plaintiff  for  a  preexisting  debt,  a  reply  denying  the  allegations  of  new 
matter,  averring  the  facts  in  respect  to  the  transfer  of  title  by  way  of  security  as 
alleged,  and  tbatH.  held  possession  until  he  executed  his  deed  to  plaintiff,  who 
claimed  a  valid  title  thereto,  subject  to  the  payment  of  the  remainder  of  the 
original  debt,  which  had  been  assigned  to  defendant,  did  not  constitute  a  depart- 
ure, but  was  a  new  assignment,  designed  merely  to  aftlrm  the  averments  of  the 
complaint  by  correcting  defendant's  alleged  mistake  in  regard  thereto. 

Holmes  v.  WQ^ard,  93. 
Waiver  of  Plea  in  Abatement. 

14.  Under  the  Oregon  practice  a  plea  in  abatement  must  be  separately  tiled, 
and  is  waived  if  Joined  with  an  answer  to  the  merits  of  the  case. 

Las»a»  T.  MeCarty,  474. 


Index.  691 

Idem. 

15.  In  a  mortgage  f«>reclo8ure  suit  a  plea  that  the  mortgage  was  not  validly 
assigned  to  plaintiff  will  not  beconsldeR^d  if  Joined  with  a  plea  in  bar,  but  will 
toe  ignored.  La^at  v.  McCarty,  AlA, 

Waiving  Insufficiency  of  Complaint. 

16.  By  tbe  exprens  provision  of  Section  7*2,  B.  &  C.  Comp.,  the  objection  that 
the  facta  stated  in  a  comphimt  do  not  constitute  a  cause  of  action  is  not  waived 
toy  failing  to  demur  or  anHwer. 

Wooley  V.  Plaindealer  Publinhing  Oj.  619;  Hryrn  v.  United  States  Min.  Co.  124. 

Stkikino  Oct  Redundant  Matter. 

17.  Redundant  matter  should  be  disregarded  at  the  trial,  and  therefore  ought 
to  have  been  eliminated  by  motion.  Neis  v.  Whitaker^  517. 

See  Abatement,  Building  &  Loan  Association,  Damages,  Limitations 
OF  Actions,  Money  Received,  and  Replevin. 

POLICE  POWER. 

Prohibition  Against  Scalping  Railroad  Tickets.    See  Const.  Law,  5-0. 

PORTLAND. 

Charter  of  Portland.    Same  as  Charters  of  Cities. 

POWER  OF  COURT  to  Vacate  Orders  After  Close  of  Term.    See  Judgments,  2. 

PRACTICE  IN  SUPREME  COURT. 

Right  to  Remand  Law  Action  With  Special  Directions  as  to  Judgment  to  be 

Entered.    See  Courts,  4. 
Effect  of  Unexcused  Delay  in  Filing  Brief— Rules.    See  Rules  of  Court. 

PRESUMPTION. 

Bill  of  Exceptions  —  Absence  of  Part  of  Testimony.    See  Appeal,  12, 13. 
Regularity  of  Proceedings  of  Municipal  Council.    See  Munic.  Corp.  17, 10. 
Final  Disposal  of  Objections  to  Street  AssessmenU.    See  Munic.  Corp.  10. 
Charter  Party— Affreightment  or  Demise  of  Vessel.    See  Shipping,  4,  6,  8. 
Sufficiency  of  Evidence  to  Support  Findings.    See  Appeal,  12. 
Voluntary  Conveyances  —  As  to  Intent.    See  Fraud.  Convey.  3. 
As  to  Consideration  for  Promissory  Note.    See  Bills  a  Notes,  3. 

PRINCIPAL  AND  AGENT. 

Rules  of  Agency  Apply  to  Corporations. 

1.  The  rule  of  agency  requiring  reasonably  prompt  disavowal  of  the  un- 
authorized acts  of  an  agent  is  applicable  to  corporations  as  well  as  to  individuals. 

Reid  v.  Alaska  Packing  Co.  215. 
Scope  of  Agent's  Authority  Must  be  Ascertained. 

2.  A  principal  is  not  bound  by  the  acts  of  his  agent  unless  they  are  within 
the  real  or  apparent  scope  of  the  authority  of  such  agent,  and  one  dealing  with 
an  agent  of  a  corporation  is  bound  at  his  peril  to  ascertain  the  extent  of  the 
agent's  authority,  and  is  chargeable  with  knowledge  thereof. 

Reid  V.  Alaska  Packing  Co.  215. 
Principal  and  Agent— Authority  to  Warrant. 

3.  A  mere  selling  agent  cannot  warrant  the  property  sold  in  any  particular 
unless  such  property  is  usually  sold  under  a  warrunty. 

Reid  V.  Alaska  Packing  Oo.  215. 
Idem. 

4.  For  Instance :  A  selling  agent  for  a  corporation  which  deals  only  in  Alaska 
salmon  has  no  authority  to  sell  for  the  corporation  salmou  taken  from  other 
than  Alaskan  waters,  or  to  warrant  that  the  salmon  sold  by  him  shall  be  equal 
to  salmou  not  found  in  Alaskan  waters,  and  not  dealt  In  by  the  corporation. 

Ried  V.  Alaska  Packing  Co.  215. 


692  Indkx. 

Duty  of  Principal  to  Disaffirm  Acts  of  Agent. 

5.  Where  a  buyer  knew  or  was  chargeable  with  knowledge  that  the  seller'^ 
flfrent  had  no  authority  to  bind  the  seller  by  a  warranty  clau«e  in  ihe  contract  of 
sale,  it  was  the  duty  of  the  buyer,  If  it  wished  to  rely  upon  the  warranty,  ta 
ascertain  whether  the  aeent's  act  hAd  been  ratified  by  the  seller,  and  In  the 
absence  of  knowledge  by  the  seller  that  the  buyer  was  relying  upon  the  war> 
ranty  it  was  under  no  duty  to  advise  the  buyer  of  its  disapproval  of  the  agent's 
act.  Held  v.  AloAka  Packing  Co,  215. 

Disaffirmance  by  Principal  of  Unauthorized  Acts  of  Agent. 

0.  Where  an  agent  exceeds  his  authority  in  contracting  for  his  principal,  the- 
principal,  upon  being  ftilly  Informed  of  the  facts,  must,  within  a  reasonable- 
time,  disaffirm  the  act  of  his  agent,  where  his  silence  might  operate  to  the 
prejudice  of  Innocent  parties,  or  be-  will  be  held  to  have  ratified  such  unauthor- 
ised act,  and  such  ratification  will  be  equivalent  to  a  precedent  authority. 

Reed  v.  Alaska  Packing  Cb.  215. 
Example  of  Unratified  Act  of  Unauthorized  Agent. 

7.  A  secretary  of  a  corporation,  whose  duties  are  prescribed  by  the  by-laws, 
and  who  is  without  authority  to  make  any  contracts  on  behalf  of  the  corpora- 
tion, unless  authorized  by  the  board  of  directors,  cannot  ratify  an  unauthorized 
contract  made  by  an  agent  of  the  corporation.       Heed  v.  Alaska  Packing  Oo.  215. 

Idem. 

8.  Where  a  corporation  promptly  disaffirmed  the  unauthorized  act  of  its  sHl- 
ing  agent  in  warranting  goods  sold,  its  act  In  afterward  shipping  the  buyer 
samples  of  its  goods  does  not  constitute  a  ratlflcatlon  of  the  agent's  unauthor- 
ized act  in  making  the  warranty.  Jieed  v.  Alaska  Packing  Cb.  215. 

Instruction  on  Ratification. 

9.  The  question  being  whether  a  wife  was  t>ound  by  her  husband's  lease  of  her 
land  to  defendant,  a  request  to  charge  that,  if  the  wife  knowingly  permitted  the 
husband  to  hbid  himself  out  as  her  agent  as  to  her  land,  she  would  be  held  to 
have  adopted  his  acts  and  be  bound  by  his  contracts,  and  that  where  one  is 
shown  to  have  been  an  agent,  and  continues  to  act  as  such  within  the  scope  of 
his  former  authority,  a  continuance  of  his  authority  is  presumed,  was  properly 
reftised,  the  co^irt  having  already  Instructed  that  the  husband  could  have  been 
an  agentof  his  wife  by  his  generally  transacting  business  of  such  character  in  rela- 
tion to  her  land,  and  that  if  she  gave  him  general  authority,  which  was  generally 
known,  it  would  be  presumed  to  continue  until  parties  that  knew  of  that  au- 
thority had  actual  notice  of  Its  cessation.  Marks  v.  fferren,  O0». 

Principal  and  Agent  — Payment  Under  Superior  Title. 

10.  An  agent  or  attorney  having  authority  to  collect  and  remit  money  Is  not 
estopped  by  his  agency  from  showing  that  the  money  did  not  belong  to  the  prin- 
cipal and  that  he  has  paid  it  to  a  claimant  under  a  paramount  title. 

Afoss  Mercantile  Co,  v.  First  Nat.  Bank,  .361. 
Notice  to  Agents.    Bee  Railroads,  1. 

PRINCIPAL  AND  SURETY. 

Implied  Authority  of  Principal  to  Deliver  for  Surety. 

1.  A  principal's  authority  to  deliver  an  uncompleted  bond  as  the  act  and  deed 
of  certain  sureties  who  had  signed  the  same  may  be  Implied  from  the  sureties'' 
acts  and  conduct.  Baker  County  v.  Huntington^  328. 

Mere  Signing  Not  Sufficient  Authority  to  Deliver. 

2.  Where  certain  sureties  signed  an  uncompleted  and  Imperfect  bond  of  a 
public  official,  attempting  to  limit  their  liability  by  writing  amounts  before  their 
names,  their  mere  act  in  so  signing  the  bond  and  leaving  it  with  the  principal^ 


Index.  693 

with  any  express  restriction  as  to  Its  delivery,  is  insufficient  as  a  matter  of  law  to 
show  authority  of  the  principal  to  deliver  the  bond  in  its  uncompleted  condition. 

Baker  Oounty  v.  Huntington.  328. 
PRIVATE  WRITINGS. 

Use  of  as  Evidence  Without  Proof  of  Genuineness.    See  Replevin,  6. 

PROMMISORY  NOTES.    Same  as  Bills  A  Notes. 

PROPERTY. 

Right  of  Pohse^ssion. 

1.  Where  plaintiff,  to  whom  the  possession  of  a  horse  had  been  intrusted  by 
its  owner,  entered  Into  a  contract  with  the  owner's  widow,  who  had  t>ecome  the 
owner  after  her  husband's  death,  whereby  he  was  to  keep  and  care  for  the  horse, 
he  thereby  theoretically  surrendered  possession  to  the  widow,  and  secured  a  new 
right  to  Its  possession  from  her,  on  which  his  rightful  continued  possession  thereof 
-depended.  Oasto  v.  Murray y  67. 

Right  of  Possessor  Against  Trespassers. 

2.  Bare  possession  of  personal  property  carries  with  it  the  right  to  the  con- 
tinued control  thereof,  as  against  mere  trespassers  or  persons  not  In  privity  with 
the  owner.  Ocuto  v.  Murray ^  57. 

PROVINCE  OF  COURTS.    See  Trial,  6,  7. 

PROVINCE  OF  J  URY.    See  Trial,  8 ;  Master  a  Servant,  G,  9. 

PUBLIC  IMPROVEMENTS. 

Ordering  Improvement  of  Separate  Parts  of  a  Street  With  Different  Kinds  of 

Work  in  One  Proceeding.    See  Munic.  Corp.  11. 
Reassessment  by  Council  — Conclusiveness  of   Proceedings.     See    Munic. 

Corp.  5. 
Effect  of  Acceptance  —  Collateral  Attack  on  Proceedings.    See  Munic.  Corp.  8. 
Notice  of  Reassessment— Contents  —  To  Whom  Given.    See  M/avic,  Corp,  6. 

PUBLIC  LANDS. 

Jurisdiction  of  Equity  to  Protect  Possession  of  Settler  on  Unsur- 
veyed  Public  Land. 

1.  The  civil  courts  will  protect  the  possession  of  a  bona  fide  settler  on  unsur- 
veyed  public  land  who  is  qualified  as  a  settler  and  Intends  to  claim  such  land  as  a 
homestead  ynder  the  provisions  of  21  Stat.  U.  S.  c.89,  g  3,  against  unlawful  Intru- 
sion or  Interference.  Huffman  v.  Smyth,  678. 

Public  Lands  — Confinement  for  Crime  as  an  abandonment. 

2.  After  a  qualified  settler  has  established  an  actual  residence  on  public  land, 
"his  removal  and  absence  therefrom  by  reason  of  confinement  for  a  crime  is  not, 
as  matter  of  law,  an  abandonment  of  his  rights.  Huffman  v.  Smyth,  573. 

QUESTION  FOR  JURY.    See  Master  a  Servant,  6;  Waters,  6. 

QUESTION  NOT  RAISED  IN  TRIAL  COURT.    See  Appeal,  8. 

QUIETING  TITLE. 

W^Ho  May  Sue  to  Determine  Adverse  Claim. 

1.  Section  516,  B.  &  C.  Comp.,  authorizing  a  party  claiming  an  interest  or 
«8tateln  real  property,  not  In  the  actual  possession  of  another,  to  maintain  a  suit 
against  any  person  claiming  an  estate  or  interest  therein  adverse  to  him,  for 
the  purpose  of  determining  such  conflicting  claims,  authorizes  the  maintenance 
of  such  suit  by  the  holder  of  a  mere  equitable  right.  Holmes  v.  Wo^ard,  93. 

Removing  Cloud  Created  by  Void  Deed. 

2.  A  suit  to  remove  a  cloud  from  a  title  may  be  maintained  even  if  the  instru- 
ment constituting  the  cloud  Is  void  on  its  face.  Mount  v.  McAulay,  444. 


694  Index. 

Limitation  on  Suit  to  Quiet  Title  Against  Tax  Deed. 

3.  Sections  81*28  and  8146,  B.  A  C.  Oomp.,  provldl ni;  that  any  action  for  the 
recovery  of  land  sold  for  taxes  shall  be  commenced  within  three  years  fi*om  the 
recording  of  the  tax  deed,  apply  only  to  actions  for  the  recovery  of  land  sold  for 
taxes,  and  not  to  suits  to  quiet  title  or  determine  an  adverse  claim  thereto. 

Mount  V.  McAutaj/t  444. 
RAILROADS. 

Damages  fob  Obstructing  Watercourse— Admissibility  of  State- 
ments Made  to  Persons  Not  shown  to  be  Agents. 

1.  In  an  action  against  a  railroad  company  for  negligently  constructing  a  till 
over  a  water  course  and  leaving  an  alleged  Insnfliclent  drain,  because  of  which 
water  was  thrown  back  on  plaintiff's  land,  declarations  made  by  plaintiff,  before 
the  fill  had  been  constructed,  to  a  person  who  was  taking  measurements  with 
surveying  Instruments  at  the  place  where  the  fill  was  subsequently  made,  con  . 
cernlng  the  quantity  of  water  which  flowed  In  the  stream,  and  similar  declara- 
tions thereafter  made  to  persons  at  work  on  the  All,  not  shown  to  have  any 
authority  from  defendant  In  the  matter  of  planning  or  constructing  the  same  or 
determining  the  size  of  the  drain,  etc.,  are  inadmissible.  Price  v.  Oregon  R.  Co.  3aO. 

Water  Courses  — Duty  of  Railroads  in  Building  Culverts. 

2.  It  Is  the  duty  of  a  railroad  company  In  constructing  a  All  across  a  water 
course  to  make  sufficient  provision  for  the  passage  of  the  water  of  thestream^ 
and  to  exercise  ordinary  skill  and  knowledge  to  so  construct  the  work  as  to 
allow  for  the  passage  of  such  water  as  may  be  reasonably  expected  to  flow  In. 
floods  shown  by  experience  to  be  liable  to  occur.  Price  v.  Oregon  R.  Oo.  350. 

Idem  — Instruction  as  to  Negligence  in  Construction. 

8.  In  an  action  against  a  railroad  company  for  alleged  negligence  in  con- 
structing a  All  through  a  water  course,  an  instruction  that  if  plaintiff  informed 
defendant's  employees  that  at  times  the  water  was  hip  deep  at  the  place  where 
the  All  was  constructed,  or  that  the  pipe  inserted  by  them  for  the  passage  of  the 
water  was  not  in  his  opinion  suflScient,  they  might  consider  such  testimony  in 
determining  whether  the  company  used  ordinary  care  In  constructing  the  drain ^ 
and  whether  it  should  have  reasonably  anticipated  such  a  flood  as  caused  the 
damage,  Is  improper,  as  giving  undue  importance  to  certain  testimony  and  as 
making  the  question  of  negligence  determlna]t>le  from  two  items  of  evidence^ 
Instead  of  from  a  consideration  of  all  the  testimony. 

Price  v.  Oregon  R.  Cb.  3)0. 

Idem. 

4.  Where,  In  an  action  against  a  railroad  company  for  negligently  construct- 
ing a  All  through  a  water  course,  It  is  conceded  that  neither  the  embankment 
of  a  county  road,  nor  a  culvert  therein,  affected  plaintiff's  injury,  it  Is  error'for 
the  court  to  charge  that.  In  determining  whether  defendants  used  ordinary  care 
in  determining  the  size  of  the  All,  the  Jury  may  consider,  with  other  matters,  the 
size  of  the  culvert  across  the  road  between  the  All  and  plalntlfl^s  residence. 

Price  v.  Oregon  R.  Oo.  250^ 
Regulating  Sales  of  Tickets.    See  Carriers  and  Const.  Law. 

RECALLING  MANDATE. 

Power  of  Supreme  Court  to  Recall  Mandate  or  to  Correct  It  to  Conform  to  the 
Truth.    See  Courts,  2. 
RECITALS. 

Conclusiveness  of  In  Contract  of  Indemnity.    See  Indemnity,  1. 

RECORDING  ACTS. 

(instruction  of  Relating  to  Release  of  Mortgages.    Bee  Mortgages,  4. 

REDEMPTION. 

Effect  of  by  Grantee  of  Mortgagee  After  Sale.    See  Mortgages,  11, 12. 


Index.  695 

redundancy. 

Redundant  Matter  in  Pleading  Should  Not  be  Supported  by  Evidence,  Bat 

be  Disregarded.    Bee  Trial,  2. 
Redundant  Matter  May  be  Stricken  Out.    See  Pleading,  17. 

REFORMATION  OF  INSTRUMENTS. 

Reforming  Writtbn  Contracts  for  Mutual  Mistake. 

1.  A  ly&Tty  seeking  the  reformation  of  a  writing  on  the  ground  of  mistake 
must  show  decisively  what  the  mistake  was  and  that  it  was  mutual,  as  to  which 
points  he  must  overcome  the  strong  presumption  that  a  written  contract  cor^ 
rectiy  expresses  the  intent  of  its  signers.  Stein  v.  Phillipat  545. 

Evidence  of  Mutual  Mistake. 

2.  The  evidence  in  this  case  does  not  clearly  show  that  the  writing  in  question 
Incorrectly  states  the  agreement  of  the  parties,  and  a  reformation  must  be  denied. 

Stein  v.  PhiUips,  845. 
RELATION. 

Doctrine  of  Title  by—  Possession  of  Widow.    See  Replevin,  6. 

REMANDMENT. 

Reversal  With  Order  for  Particular  Judgment.    See  appeal,  10. 

REMEDY  AT  L.AW. 

J  urisdlction  of  Equity  to  Set-off  Opposing  Judgments.    See  Equity,  1. 
Restraining  Action  at  Law  for  Money  Collected  by  Agent  and  Paid  to  Another 
Claiming  a  Superior  Title.    See  Injunction,  2. 

REMISSION. 

Reducing  Verdict  for  Excessive  Damages.    Bee  New  Trial. 

REMOTENESS  OF  EVIDENCE.    See  ARSON,  2 ;  Homicide,  8. 

REMOVING  CLOUD  From  Title.    Same  as  Quieting  Title. 

REPEAL  by  Implication.    See  Statutes,  2. 

REPLEVIN. 

Limitations  —  Replevin. 

1.  Where,  in  replevin  brought  in  1905,  defendant  and  his  vendor  had  been 
in  open,  undisputed  possession  of  the  property  claimed  since  1890,  claiming 
ownership  In  good  faith,  plaintlfl^s  action  was  barred  by  limitation. 

LeavUt  v.  Shook,  2S9. 
Replevin  —  Rights  of  Possessor. 

2.  Bare  possession  of  personal  property  entitles  the  possessor  to  hold  it 
against  mere  trespassers,  even  though  the  title  may  be  in  another. 

Caato  V.  Murray,  67 
Replevin  — Alleging  Right  of  Possession. 

K.  In  replevin  it  must  appear  by  the  complaint  that  plaintiff  was  entitled  to 
the  possession  of  the  property  named  at  the  time  the  action  was  commenced. 

Ca»to  V.  Murray,  57, 
Idem— -Allegations  Without  Conclusions. 

4.  A  complaint  In  claim  and  delivery,  basing  plaintiff's  right  of  possession 
on  a  contract  covering  a  definite  period  of  time,  before  the  expiration  of  which 
the  action  was  commenced,  and  showing  that  at  a  date  prior.to  the  expiration  of 
that  period  defendants  unlawfully  took  possession  of  the  property,  discloses  a 
right  to  the  Immediate  possesnion  of  the  property  In  plaintiff,  withoutan  express 
averment  to  that  effect,  and  the  striking  out  of  such  an  averment  is  not  error. 

Outo  V.  Murray,  57. 
Administrators  —  Appointment  —  Effect  —  Title  by  Relation. 

5.  A  widow  of  an  in  testate  deceden  t,  who  takes  possession  of  personal  property 
belonging  to  her  deceased  husband's  estate  prior  to  the  appointment  of  an  ad- 


696  IiJDBx. 

mlnistratx>r,  acquires  by  a  subsequent  appointment  as  administratrix  a  title  to 
such  personal  property  which  relates  back  to  her  husband's  death,  and  may  b« 
pleaded  as  a  defense  to  un  action  of  replevin  brou^^ht  for  such  property  by  the 
person  from  whom  she  took  the  same,  provided  the  taking  was  lawful;  but  the 
title  so  acquired  will  not  relate  back,  so  as  to  validate  the  Uking,  if  the  same 
was  oiiglnally  unlawful  and  in  violation  of  the  rights  of  the  person  In  posses- 
sion thereof.  '  Ocuio  v,  Marrayy  57. 

Private  Writings  as  Evidence  — Proof  or  Genuineness  — Replevin. 

6.  Where,  In  replevin,  defendant  claimed  to  have  purchased  the  property  in 
.good  faith  from  R.,  who  testified  that  he  purchased  It  from  one  J.,  whom  he  be- 
lieved to  be  the  owner,  in  March,  1896,  and  who  had  In  his  possession  and  deliv- 
ered to  R.  what  purported  to  be  a  bill  of  sale  to  him  from  another,  such  bill  of 
sale  is  admissible  without  proof  of  its  genuineness  to  show  the  manner  and  cir- 
cumstances under  which  R.  acquired  possession.  Leavitl  v.  Shook,  'iSU. 

Stock  Brand  as  Evidence  — Replevin. 

7.  Where,  In  replevin  to  recover  a  horse,  defendant's  vendor  testified  that 
after  he  purchased  the  animal  she  was  branded  with  his  brand,  a  copy  of  which 
was  recorded,  such  copy  was  properly  admitted  in  evidence  as  tending  to  show 
good  faith.  LeavUt  v.  Shook,  219. 

REPLY  as  a  Departure.    See  Pleading,  13. 

RES  J  UDIC ATA.    See  Judgment,  6,  7. 

RETROSPECTIVE  STATUTE. 
'    Construction  qf  Section  400,  Portland  Charter  of  1008.    See  MuNic.  Corp.  1,  2. 
Validity  of  Act  Curing  Defective  8ale«.    See  Const.  Law,  I. 

RISK  OF  EMPLOYMENT. 

Assumption  of  Risk  by  Immature  Servant— Danger  of  Exposed  Gearing. 
See  Master  a  Servant,  7, 10. 
RULES  OF  COURT. 

Appeal  — Delay  in  Filing  Brief. 

Failure  of  appellant  to  file  a  brief  within  20  days  after  service  of  the  abstract, 
as  required  by  Rule  6  of  this  court  (85  Or.  587,  503),  is  not  excused  by  reason  of  the 
fact  that  the  manuscript  was  placed  In  the  hands  of  the  printer  immediately 
upon  serving  and  filing  the  abstract,  and  the  work  was  prosecuted  as  rapidly  as 
possible,  but  was  not  completed  within  time,  and  the  time' within  which  to  file 
and  serve  the  same  was  overlooked  by  counsel,  where  there  was  no  attempt  to 
get  any  extension  of  time  within  which  to  serve  the  brief,  and  no  attention  was 
paid  to  the  matter  until  a  motion  to  dismiss  was  made  by  respondent;  the  brief 
then  being  long  overdue.  Carter  v.  Wakeman,  'J12. 

Rules  Construed. 

Rule  6,  p.  21*2. 
SALES. 

Remedies  of  Purchaser  for  Breach  of  Warranty. 

1.  W^here  property  delivered  under  a  contract  of  sale  does  not  even  substan- 
tially comply  with  the  requlremeuu,  the  purchaser  may  rescind  and  refuse  to 
receive  the  property  oflfered,  or  return  it  if  It  has  been  delivered  before  examina- 
tion, and  that  right  is  not  afi'ected  by  a  provision  that  no  articles  shall  be  re- 
turned except  for  others,  since  such  proviso  implies  that  the  contract  has  been 
at  least  approximately  fulfilled.  Puritan  Mfg,  Co,  v.  Weatermire,  557. 

Sales  by  Description  — Implied  Warranty. 

2.  Where  goods  are  sold  by  description  there  is  an  implied  warranty  that  the 
articles  to  be  furnished  shall  substantially  fulfill  the  representations  made  as  to 
their  quality.  Purtton  M/g,  Co.  v.  Wetiermire,  557. 


Index.  697 

SCALPERS. 

ProhlbiliDg  Scalping  of  Railroad  Tickets —  Construction  of  Law  of  1005— Con 
stltutionallty  of  Act.    iSee  Carriers,  1,  2,  and  Coi^st.  Law,  6, 9. 

SEHSION  LAWS  OF  OREGON  Construed  in  This  Volume. 
iJEMERAL  Laws.  Page, 

Laws  180P,     p.   64,         I   3 :M2,  244 

1903,  pp.   20,    21,  §    !..__ 24,    8» 

pp.  209,  210,  g    1— 5«,  5525 

pp.  387,  861,  I  15 249 

pp.  708,  711,  I  28- 288 

(Sp.Sess.)  pp.    28,   29,  g    1- 585,588 

1906,  pp.  273,  277,         188,  137,  142 

pp.  422,  42S,  I    1 402,  496 

g    2 _ 492,  498 

i   3 ^492,  496 

\    4 492,  496 

SET-OFF. 

Opp)08ing  Judgments  — Insolvency— Remedy  at  Law.    See  Equity,  1, 2. 

SHERIFFS  AND  CONSTABLES.      ' 

Principal  and  Surety—  Right  to  Deliver  Incomplete  Instrument. 

1.  Where  a  sheriff  delivered  what  purported  to  be  an  official  bond  to  the  county 
court,  without  signing  the  Fame  himself,  without  the  names  of  any  of  the  sureties 
except  one  being  entered  therein  or  certain  other  sureties  qualifying, and  without 
obtaining  the  signatures  of  sureties  sufficient  to  complete  the  bond,  the  liability 
Of  the  sureties  who  had  signed  the  bond  depends  on  whether  the  sherifT  had  au- 
thority to  deliver  the  uncompleted  and  imperfect  instrument  as  their  act  and 
deed,  and  not  on  whether  there  was  any  definite  understanding  or  agreement 
between  the  sheriff  and  such  sureties  at  the  time  the  instrument  was  signed  by 
them,  that  it  should  not  be  so  delivered.  Baker  Oounty  v.  Huntington^  328. 

Mere  Signing  Not  Sufficient  Authority  to  Deliver. 

2.  Where  certain  sureties  signed  an  uncompleted  and  imperfect  bond  of  a 
sheriff,  attempting  to  limit  their  liability  by  writing  amounts  before  their  names, 
their  mere  act  in  so  signing  the  bond  and  leaving  it  with  the  county  court,  with 
any  express  restriction  as  to  its  delivery,  is  insufficient  as  a  matter  of  law  to  show 
authority  of  the  principal  to  deliver  the  bond  in  its  uncompleted  condition. 

Baker  Oounty  v.  Huntington^  828. 
SHIPPING. 

Presumption  as  to  Nature  of  Charter. 

1.  A  charter  party  is  presumptively  a  contract  of  affk-eightment  rather  than 
a  demise  of  the  ship,  and  will  be  so  construed  unless  its  terms  indicate  clearly  to 
contrary.  Orimberg  v.  OolutnMa  Packers*  Aaao.  257. 

Charters  — General  Rule  or  Construction. 

2.  Charter  parties  are  subject  to  the  same  rules  as  are  other  contracts,  and 
the  intention  of  the  parties  must  control,  when  ascertained. 

Grimberg  v.  Columbia  Packer**  Amoc,  257. 
Charters  — Demise  or  Contract  for  Special  Service. 

3.  Where  a  charter  party  transfers  to  the  charterer  the  entire  command,  pos- 
session and  control  of  the  vessel,  the  charterer  is  owner  for  the  service  stipulated 
for  ;  but  where  a  charter  party  is  merely  an  agreement  for  the  use  of  the  vessel, 
the  general  owner  at  the  same  time  retaining  command,  possession  and  control 
over  her  navigation,  the  charterer  is  a  contractor  for  the  specific  service,  and  the 
responsibilities  of  the  owner  are  not  changed. 

Orimberg  v.  Colun^ia  Packers^  Assoc.  257. 


698  Index. 

Meaning  of  "Freighting"  in  Shipping  Charter. 

4.  The  word  "frelghtlni?"  in  a  charter  party,  whereby  the  owner  of  a  vessel 
agrees  on  the  "freighting"  and  chartering  thereof  to  the  charterer  for  a  voyage, 
means  a  loading  with  goods  for  transportation,  and  does  not  indicate  a  demise 
of  the  vessel  to  the  charterer.  Grimberg  v.  Oolumhia  Packer*'  Auoe.  2.>7. 

Meaning  of  "Chartering"  in  Shipping  Charter. 

5.  The  word  "chartering,"  In  a  charter  party  whereby  the  owner  of  a  vessel 
agrees  on  the  freighting  and  "chartering"  (hereof  to  the  charterer  for  a  voyage, 
does  not  necessarily  mean  a  letting  of  the  vessel  by  way  of  demise,  but  is  equally 
consistent  with  the  idea  of  a  contract  of  affreightment. 

Orimberi/  v.  Oolumbia  Packer**  Asaor,  257. 
Construction  of  Stipulations  in  Charter. 

6.  A  charter  party  binding  the  owner  to  keep  the  vessel  during  the  voyage 
well  fitted,  tackled,  etc.,  giving  the  charterer  the  sole  use  of  the  vessel,  except  the 
private  apartments  of  the  master  in  the  cabin,  and  providing  that  no  goods 
shall  be  laden  on  board,  except  for  the  charterer,  gives  the  owner  an  oversight 
over  the  vessel  during  the  voyage,  and  binds  him  to  freighting  her,  and  Is  there- 
tove  inconsistent  with  the  idea  of  a  demise  of  her  to  the  charterer. 

OMmberg  v.  Oolumbia  Packer »''  Amoc.  237. 
Idem. 

7.  A  provision  in  a  charter  party,  whereby  the  charterer  covenants  to  charter 
and  hire  a  vessel  and  to  pay  for  the  charter,  including  the  captain's  salary, 
during  the  voyage,  a  specified  sum  on  the  acceptance  of  the  vessel  and  a  specified 
sum  per  month  until  the  vessel  is  discharged  of  her  cargo,  is  not  hioonsistent 
with  a  contract  of  affreightment  only,  where  the  provision  la  contained  In  a 
covenant  on  the  part  of  the  charterer,  and  the  owner  has  not  on  his  part  em- 
ployed any  words  operative  as  a  demise. 

Orimberg  v.  Columbia  Packerg*  Auoc.  273. 
Idem. 

8.  A  charter  party  contained  no  technical  words  of  demise,  nor  was  the  vessel 
let  to  hire.  The  charterer  covenanted  to  "charter  and  hire."  The  owner  pro- 
vided the  master.  The  charterer  engaged  the  crew  and  bound  himself  to  pay  all 
p)ort  charges  and  labor  bills  and  provisions  during  the  voyage,  and  to  "deliver*' 
the  vessel  In  port  of  destination  to  the  owner,  and  agreed  to  employ  the  vessel 
only  In  lawful  trade.  The  master's  wages  were  included  in  monthly  paymente 
to  be  made  for  the  charter.  The  first  payment  was  to  be  made  on  the  day  of  the 
"acceptance"  of  the  vessel  by  the  charterer.  The  owner  agreed  to  place  the  vessel 
at  a  wharf  selected  by  the  charterer,  at  which  time,  the  vessel  being  safely 
moored,  the  charter  should  "commence,"  and  if  the  vessel  was  not  so  delivered 
the  charterer  might  cancel  the  charter.  Held  that,  though  the  words  "charter 
and  hire"  and  "acceptance"  and  "deliver"  Indicated  a  demise,  they  were  not  in- 
consistent with  a  contract  of  aflTrelghtment  merely,  and  in  view  of  theabsence  of 
words  of  demi.se  and  the  presumption  against  a  demise  the  charter  party  must 
be  construed  as  one  of  affreightment  only. 

Orimberg  v.  Oolumbia  Packer**  Assoc.  2.T7. 
8HOKT  HAND  NOTES. 

Contradicting  Witness  by  Incomplete  Report.    See  Witnesses,  1. 

SPECIAL  PRIVILEGES. 

Ticket  Scalping  —  Granting  or  Abridging  Privileges.    See  Const.  Law,  7. 

STATE  CONSTITUTION.    Same  as  Constitution  of  Oregon. 

STATES. 

Recovery  of  Public  Funds  Unlawfully  Diverted. 

1.  After  public  funds  have  been  diverted  an  Individual  taxpayer  cannot  main- 
tain a  suit  to  recover  them,  but  the  State  only  can  so  acL  Sears  v.  James,  80. 


Index.  699 

Suit  to  Restrain  Threatened  Diversion  of  Public  Funds. 

2.  Suit  for  an  Injunction  cannot  be  maintained  against  tbe  superintendent 
of  a  public  institution  on  the  general  allegation  that,  unless  restrained,  be  will 
continue  to  furnish  his  family  with  supplies  and  cause  the  bills  therefor  to  be 
paid  qut  of  the  State  funds;  he  having  no  authority  to  disburse  state  funds,  but 
being  merely  authorized  to  purchase  supplies  for  the  institution,  and  present  tho 
bills  to  the  state  auditing  officer,  by  whom  Ihey  must  be  approved  before  being 
paid.  Sears  v.  Jatnes^  50. 

Injunction  aoainst  Malfeasance  in  Office. 

3.  The  fact  that  a  public  official  may  be  so  performing  his  official  duties  as  to 
be  liable  for  malfeasance  in  office  does  not  Justify  equitable  interference  at  th& 
suit  of  a  taxpayer.  Sears  v.  James^  60. 

STATUTE  OF  FRAUDS. 

Original  and  Collateral  Undertakings. 

An  oral  agreement  by  a  mortgagee  to  indemnify  a  purchaser  of  a  portion 
of  the  property  mortgaged  against  Judgment  liens  for  a  present  consideration 
passing  to  such  mortgagee,  is  an  original  undertaking,  and  not  within  the  statute 
of  frauds.  Peterson  v.  CreasoUy  W. 

STATUTE  OF  LIMITATIONS.   Same  as  Limitation  of  Actions. 

STATUTES. 

Construing  Statutes  —  Implied  Words. 

1.  Different  sections  of  a  statute  must  be  read  together  to  ascertain  their  full 
meaning,  and  sometimes  words  used  in  an  earlier  section  must  be  understood  in 
a  later  section.  Wong  Sing  t.  Independence,  2S1» 

Idem  —  Ascertaining  Legislative  Intention. 

2.  Under  the  rule  of  construction  declared  by  Section  707  of  B.  A  C.  Com  p.,  that 
tbe  legislative  intention  shall  be  followed,  If  possible,  it  must  be  held  that  the 
council  of  the  City  of  Forest  Orove  has  not  authority,  under  the  charter  of  1891,  to 
license  the  sale  of  Intoxicating  liquors.  The  authority  to  "regulate,"  in  view  of 
tbe  history  of  tbe  charter  and  tbe  social  conditions  that  have  long  existed  at  that 
point,  does  not  imply  the  right  to  license,  but  rather  tbe  right  to  control  tbe  dls- 
posal  of  liquors  by  some  other  means.  Paci/lc  University  v.  Johnson^  448. 

Implied  Amendment. 

8.  A  statute  relating  to  a  matter  partly  covered  by  an  existing  statute  will 
not  be  construed  to  modify  or  repeal  the  earlier  law,  unless  tbe  two  are  repugnant. 

Barringer  v.  Loder,  228. 
STATUTES  OF  OREGON  Construed  in  This  Volume : 

Bellinger  and  Cotton's  Compilation.  Page. 

Section   64,  179, 181 

67,  subd.    2 179,  181,  542 

68,  10,    18 

72,  626 

78,  606 

74,  146,149 

86,  521 

91,  626 

108,  85 

182,  subd.    6 57,   50 

184,  _. 73,   76 

139,  485,  490 

150,  366,  870 

169,  8T2.  373 

206,  160,  153 


700  Index. 

STATUTES  OF  OREGON-Continued—  Page, 

SecUon    218.  119,  122. 123 

227,  6,     7 

250,  ,.151,  153 

2«),  128 

296,  _ —822,  828 

302,  3«8,  871 

385,  502,  506 

428,  428 

427,  151,158 

607,  BUbd.    6 — 246 

611,  610,  6!6 

513,  47,   49,  610,  616,  617 

516,  93,    99 

547,  374,  879,  8W 

566,  - -- 47,  298,  474 

566,  •- 475 

666,  298 

568,  524,  52t 

707,  448 

788,  BUbd.  10 482 

BUbd.  21 474.  483 

BUbd.  83 484 

797,  BUbd.    2 69,   71,   72 

858,  .....282,  290 

lisi  502*,  607 

1161,  681,  668 

1806,  281,  238 

1808,  281,  288 

1865,  509,  511 

1798,  470,  471 

1805,  470,  478,  600,  616 

1812,  662 

1875,  485,  488 

2170,    •  509,  614 

8039,  585,  691 

8057,  196,  207. 209 

8084,  198,  206 

8086,  205 

8127,  210 

3128.      ,  444,  446 

3136,  444,  446 

8146,  444.  446 

3389,  BUbd.  19 620,  626 

4460,  475,  484 

V  4595,  24,  84 

5362,  223,  229 

5363,  228 

6367,  228,  228 

5368,  223,  228 

S.'jOS,  467 

5578,  57,67 

5602,  242,  245 

5(511,  243,  245 

5(J40,  42,  803,  806 


Index.  701 

STATUTES  OF  OREGON-Concludkd— .  Page, 

Section  6««9,  124,  126 

5754,       — ^-156,  158,  leO 

5755,        156, 165,  167 

5756,        74,  88,  165 

5757, 166 

Session  Laws. 

Laws  1899,    p.    64,         g    8 242,244 

1908,  pp.    20,    21,  \    1 24,   88 

pp.  209,  210, 1    L- 624,  525 

pp.  887.  851,  \  15 -249 

pp.  708,  711, 1  28__ - 2« 

(8p.  Sew.)  pp.   28,   29,  g    1 -585,  588 

1905,  pp.  278,  2n,         ISfl,  137,  142 

pp.  422,  423,  \    1 492,  496 

I   2_„ __--__ .492,  496 

I   8 -492,  496 

I   4 492,  496 

STATUTES  OP  THE  UNITED  STATES  Considered  In  this  Volume: 
Statutes  at  Large. 

Volume  21.  pp.  140, 141,  c  89,  §  8 577 

United  States  Compiled  Statutes  1901. 

Page  1896 577 

Federal  Statutes  Annotated. 

Volume  6,  pp.  800,  801 577 

STENOGRAPHIC  NOTES. 

Contradicllng  b>  Use  of  Incomplete  Report.    See  Witnesses,  1. 

STIPULATION. 

Effect  of  Stipulation  on  Parties  Not  Signing. 

A  stipulation  Is  binding  on  only  the  parties  who  sign  It,  and  parties  to  the 
litigation  who  do  not  assent  thereto  are  not  precluded  by  its  terms. 

Quackenbunh  v.  Arteaian  Land  Cb,  808. 
STOCK. 

Taxation  of  Migratory  Herds  —  Constitutionality.    See  Taxation,  1. 

Brands  as  Evidence— Good  Faith.    See  Replevin,  7. 

STOCKHOLDERS. 

Relation  of  to  Corporation  as  to  Unpaid  Dividends.    See  Corporations,  8.     ' 

STREAM  WATER  Defined.    See  Waters,  5. 

STREETS. 

Improving  Separate  Parts  of  One  Street  With  Different  Kinds  of  Worlt  In  a 

Single  Proceeding.    See  Munic.  Corp.  11. 
Constitutionality  of  Retroactive  Assessment  Scheme  for  Improvement  of 
Public  Streets.    See  Munic.  Corp.  1. 

STRIKING  OUT. 

Motion  to  Strike  Parts  of  Information  Not  Proper.    See  Crim.  Law,  2. 

SUBROGATION. 

Principal  and  Surety— Effect  of  Assuming  Contract  by  Surety. 

Where  a  surety,  either  corporate  or  individual,  in  pursuance  of  the  terms  of 
the  undertalclng,  assumes  the  performance  of  the  principal's  contract,  such  surety 
is  subrogated  to  the  rights  of  the  principal  in  such  contract,  and  becomes  subiect 
to  his  liabilities.  Augplund  v.  jEtna  IndemnUy  Co.  10. 


702  Index. 

SURFACE  WATER  Defined.    See  Wa-^rs,  5. 

SURPLUSAGE. 

Evidence  to  Support  Is  Improper.    See  Tbial,  2 ;  Tueatres,  2. 

SURPRISE. 

Vacating  J  udgineDt— Discretion  of  Judge.    See  Judgmekt,  1. 

TAXATION. 

Constitutional  Requirement  of  Uniformity. 

1.  A  statute  sucb  as  Laws  1905,  pp.  273, 277,  providing  for  the  assessment  and  tax- 
ation of  certain  classes  of  personal  properly  at  the  same  rate  of  levj'  as  other 
property,  unless  the  owner  is  without  sufficient  real  estate  to  Insure  payment  of 
the  tax,  in  which  case  the  assessment  shall  be  made  at  the  rate  of  the  precediug 
year,  and  which  fails  to  provide  for  a  subsequent  adjustment  or  equalization  of 
the  taxes  collected  from  the  owner  in  accordance  with  the  rate  of  levy  for  the 
pr^edlng  year,  in  case  such  rate  diflTers  from  the  rate  for  the  current  year  In 
which  the  taxes  are  coUect'Cd,  is  repugnant  to  Const.  Or.  Art.  I,  §  32,  requiring 
taxes  to  be  equal  and  uniform,  and  Article  IX,  g  1,  requiring  the  l^islature  to 
provide  for  a  uniform  and  equal  rate  of  assessment  and  taxation. 

Lake  Oounty  v.  JSkhroedeVf  136. 
Constitutionality  of  Exemition  Statute. 

2.  A  statute  providing  for  an  exemption  in  favor  of  householders  Is  unconsti- 
tutional in  that  it  provides  a  rate  of  taxation  that  is  neither  equal  nor  uniform 
between  residents  and  nonresidents,  thereby  violating  Const.  Or.  Art.  IX,  {  1, 
providing  for  an  equal  and  uniform  rate  of  taxation. 

Wallace  v.  Board  of  BquaUzatioUf  5Si. 

Exemptions  by  Legislature  — Statutory  CoNSTRrcrriON. 

8.  In  the  absence  of  a  constitutional  inhibition  the  right  to  make  reasonable 

exemptions  from  taxation  rests  with  the  legislature,  but  where  there  is  a  doubt 

in  a  statute  attempting  to  make  an  exemption,  the  uncertainty  will  be  resolved 

In  favor  of  the  State  and  against  the  exemption. 

Wallace  v.  Board  of  Equalization,  3&i. 
Tax  Levy  — Need  of  Entering  EJstimate  in  Journal. 

4.  It  is  not  necessary  to  the  validity  of  a  tax  levied  by  the  county  court  for 
county  purposes  that  the  estimate  made  by  the  court  shall  be  entered  at  length 
in  the  Journal.  The  requirements  of  Section  SOW,  B  &  C.  Comp.,  that  the  court 
"shall  estimate  the  amount  of  money  to  be  raised,  •  •  and  apportion  such 
amount,  •  «  and  sucb  determination  shall  be  entered  at  large  in  its  records," 
are  directory  only,  and  not  Jurisdictional,  the  power  to  levy  the  tax  being  con- 
ferred by  Section  8085,  which  provides  that  at  a  stated  time  each  year  "  the  county 
court  •  »  shall  levy  a  tax,"  sufficient  to  defray  the  expenses  of  the  county. 

Oregon  Railroad  Cb.  v.  Umatilla  Omnty^  198. 
Tax  Levy  — Necessity  of  Signing  Journal  Entry. 

5.  Where  the  Journal  entry  of  an  order  levying  a  tax  was  signed  by  the 
county  commissioners  before  any  attempt  was  made  by  the  county  to  enforce 
the  tax,  the  fact  that  it  was  not  so  signed  at  the  time  a  taxpayer  instituted  a  writ 
of  review  to  set  aside  the  assessment  is  not  ground  for  annulling  th^  same. 

Oregon  Railroad  Oo.  v.  Umatilla  County^  198. 
Need  of  Certificate  on  Assessment  Roll. 

6.  Under  B.  &  C.  Comp.,  g  S057,  providing  that  the  assessor  shall  procure  from 
the  clerk  a  blank  assessment  roll,  and  forthwith  proceed  to  assess  all  the  taxable 
property  within  the  county,  and  return  such  roll  to  the  clerk  on  or  before  a  cei^ 
tain  time,  with  a  full  and  complete  assessment  of  such  taxable  property  entered 
therein,  an  assessment  roll  becomes  a  public  document  when  returned,  though 
not  formally  certified  or  identified  by  the  assessor,  no  certificate  being  required. 

Oregon  Railroad  Oo.  v.  Umatilla  County,  198. 


Index.  703 

ASSESSMENT  ROLL  —  ABBREVIATEB  NAMB  OF  TAXPAYER. 

7.  Ad  assessment  of  property  to  "  O.  R.  A  N.  Co.,  The,"  is  a  sufficient  designa- 
tion of  the  owner,  where  such  owner  is  commonly  known  hy  those  letters,  which 
are  an  ahbrevlaUon  of  Its  full  name. 

Oregon  RailrocUl  Cb.  v.  Umatilla  County^  198. 

Assessment  Roll  —  Repeating  Name  of  Taxpayer. 

8.  Where  a  taxpayer  is  assessed  with  several  separate  pieces  of  property,  It  is 
not  necessary  that  the  name  be  entered  In  the  roll  opposite  each  description,  but 
it  Is  enough  that  It  is  entered  at  the  commencement  of  the  assessment,  followed 
by  the  list  of  the  property  under  the  proper  headR,  no  other  name  intervening. 

Oregon  Railroad  Co.  v.  Umatilla  County,  198. 
Assessment  of  Property  Under  Different  Municipalities. 

0.  Where  property  is  subject  to  assessment  in  different  districts  it  is  proper  to 
enter  the  name  of  each  on  the  roll  wiih  the  value  of  the  property  under  each 
name.  Oregon  Railroad  Co.  v.  Umatilla  County,  198. 

Sufficiency  of  Description  for  Taxation. 

10.  A  description  of  real  property  which  would  be  sufficient  in  a  deed  or  con- 
tract is  sufficient  in  a  tax  roll.  Oregon  Railroad  Co.  v.  Umatilla  County,  198. 

Evidence  to  Identify  Property  Assessed. 

11.  Parol  evidence  is  admissible  in  aid  of  an  assessment  for  taxes  to  identify 
the  land  referred  to  or  to  aid  in  the  Interpretation  of  the  record. 

Oregon  Railroad  0>.  v.  Umatilla  County,  198. 
Sufficiency  of  Description  for  Taxation— Review, 

12.  A  description  of  property  of  a  railroad  company  as  certain  lots  "Res. 
Add.  Pend.,  City  of  Pendleton,"  or  a  stated  number  of  miles  of  "  R.  R.  Bed,"  or 
of  "R.  of  W."  is  not  so  defective  as  to  be  void  on  the  face  of  the  record,  and 
therefore  on  a  proceeding  to  review  the  acts  of  the  assessor  it  must  be  sustained. 

Oregon  Railroad  Co.  v.  Umatilla  County,  198. 
e:siioppel  to  Object  to  Description  on  Tax  Roll. 

13.  A  taxpayer  who  has  appeared  before  an  equalization  board  and  applied 
fora  reduction  In  the  valuation  of  his  property  cannot  afterward  claim  in  a  pro 
ceeding  against  the  county  that  the  description  of  such  property  is  defective. 

Oregon  Railroad  Co.  v.  Umatilla  County,  198. 
Limitation  on  Suit  to  Quiet  Title  Against  Tax  Deed. 

14.  Sections  3128  and  8146,  B.  &  C.  Comp.,  providing  that  any  action  for  the 
recovery  of  land  sold  tor  taxes  shall  be  commenced  within  three  years  from  the 
recording  of  the  tax  deed,  apply  only  to  actions  for  the  recovery  of  land  sold  for 
taxes,  and  not  to  suits  to  quiet  title  or  determine  an  adverse  claim  thereto. 

Mount  V.  McAulay,  444. 
Idem. 

15.  Section  3135,  B.  <&  C.  Comp.,  providing  a  limitation  of  two  years  from  the 
recording  of  a  t-ax  deed  for  suits  to  set  aside  tax  sales  or  remove  the  cloud  on  a 
title  created  by  a  tax  sale,  refers  only  to  deeds  given  to  counties  pui-suant  to  pur- 
chases by  them  at  delinquent  tax  sales  under  the  statute. 

Mount  v.  McAulay,  Hi. 
See  Writ  of  Review,  1. 
TERM  OF  COURT. 

Right  to  Recall  Mandate  After  Close  of  Term.    See  Courts,  2. 

TESTAMENTARY  CAPACITY.    See  Wills. 

THEATRES  AND  SHOWS.    • 

Contract  Created  by  Purchase  of  Ticket— Tort. 

1.  A  purchaser  of  a  theatre  ticket  becomes  thereby  only  a  licensee,  and  such 
license  is  revocable  at  the  pleasure  of  tbe  seller,  the  latter  thereby  becoming  liable 
to  damages  for  the  breach  of  the  contract,  but  not  In  tort.         Taylor  v.  Oohn,  538. 


704  Index. 

Forbidding  Use  of  Ticket  — Complaint  in  Action  for  Damages. 

2.  A  complBlnl  alleging  that  defendant  Is  the  proprietor  of  a  theatre;  that 
plaintiff  purchased  of  him  tickets  therefor;  that  they  were  pre.«>ented  at  the 
proper  time  and  place,  but  defendant  refused  to  allow  hlin  lo  occupy  the  seats  ; 
and  that  by  reason  thereof  he  was  damaged  — states  a  cause  of  action  for  breach 
of  contract,  and  other  allegations  as  to  the  color  of  plaintiiT  and  the  circum- 
stances of  the  refusal  may  be  rejected  as  surplusage.  Taylor  v.  TbAn,  53». 

TICKET  BROKERAGE. 

Validity  of  Regulation  or  Prohlbitioa  of.  See  Carriers  and  Const.  Law,  5-9. 

TIME. 

Computation.    • 

Where  a  right  must  be  claimed  within  a  prescribed  period  the  time  Is  reck- 
oned by  excluding  the  day  the  right  accrues  and  including  the  last  day  necessary 
to  make  the  prescribed  period.  Horn  v.  United  State*  Mining  Co.  124. 

Necessity  of  Filing  Notice  Within  the  Time  Prescribed  by  the  BUtute  Con- 
ferring the  Right.    See  Liens,  3. 

TITLE  BY  RELATION. 

Effect  of  on  Rights  of  Pertons  in  Possession  of  Personal  Property  of  an  In- 
testate.   See  Executors,  1. 

TRANSACTIONS  WITH  DECEDENT.   See  EXECUTORS,  2,  5. 

TRANSCRIPT. 

Oral  Instructions  as  Part  of  Record.    See  Appeal,  6,  7. 

TRIAL. 

Remarks  and  Conduct  of  Judge  Before  the  Jury. 

1.  Every  act  and  remark  of  a  trial  Judge  in  the  presence  of  a  jury  may  appre- 
ciably affect  the  verdict,  and  therefore  it  has  been  held  in  some  courts  that  every 
remark  of  a  trial  Judge  concerning  the  testimony  in  a  case  on  trial  before  him, 
made  in  the  presence  of  the  J  ury,  is  to  be  considered  an  Instruction. 

State  V.  Lane,  336. 
Evidence  as  to  Surplusage  or  Redundant  Matter. 

2.  Surplusage  in  a  pleading,  or  redundant  matter,  should  be  disregarded  at 
the  trial  and  evidence  in  support  thereof  should  usually  be  rejected,  unless  it 
may  be  competent  sometimes  to  rebut  claims  of  the  adversary  The  general  rule 
is,  once  redundant,  always  so.  Next  v.  Whitaker,  617. 

Effect  of  Not  Objecting  to  Evidence. 

3.  The  failure  to  object  to  evidence  when  offered  is  not  a  waiver  of  any  except 
formal  objections,  and  it-s  legal  effect  and  Its  sufllclency  are  still  open  to  di8> 
cussion .  McClung  v.  'McPheraon,  78. 

Extent  of  Duty  to  In.struct  as  to  thk  Law. 

4.  Under  Section  139,  B.  &  C.  Com  p.,  requiring  a  trial  Judge  to  stale  to  the  Jury 
all  matters  of  law  that  he  may  deem  necessary  for  their  information  in  reaching 
a  verdict,  a  Judge  need  not,  in  the  absence  of  a  special  request.  Instruct  on  col- 
ateral  matters,  as,  with  reference  to  evidence  of  character.         Slate  v.  Smith,  485. 

Time  for  Requesting  Instructions. 

f}.  Instructions  particularly  desired  should  be  seasonably  presented  for  the 
consideration  of  the  court,  and  the  limit  of  time  for  so  doing  as  to  matters  then 
known  is  the  time  of  the  retiring  of  the  Jury  for  deliberation.    State  v.  Smith,  485. 

Province  of  Court  to  Construe  Written  Evidence. 
6.  When  written  evidence  is  offered  it  becomes  the  duty  of  the  court  to  deter- 
mine its  suflicieney.  McCtung  v.  McPherson^  TS. 


Index.  705 

Duty  to  Dbclabe  Legal  Effect  of  Unambiguous  Language. 

7.  It  Is  the  duty  of  the  trial  Judge  to  declare  to  the  Jury  the  legal  effect  of 
unambiguous  language.  State  v.  Conklin,  509. 

Trial— Province  of  Jury  — Remarks  of  Judge. 

8.  A  trial  Judge  may  with  propriety  correctly  state  the  teHtlmony  of  a  wlt^ 
ness,  where  there  is  a  confusion  or  dispute  as  to  what  the  testimony  was«  and  in 
so  doing  he  does  not  invade  the  right  of  the  Jury  to  pass  on  all  questions  of  ttkctf 
as  reserved  by  Section  189,  B.  &  U.  Com  p.  State  v.  Lane^  52tf. 

Instructions  on  Irrelevant  Matters. 

9.  Instructions  to  Juries  should  not  deal  with  irrelevant  matters,  since  the 
result  must  be  conflising.  Price  v.  Oregon  Railroad  (b.  8fiO. 

Refusing  Instructions  Already  Covered. 

10.  It  is  not  error  to  decline  to  give  a  reciuested  Instruction,  even  If  appropri- 
ate, where  the  same  rule  has  already  been  announced  in  another  paragraph. 

StaU  V.  Smith,  485;  Mark*  v.  Herreti,  003. 
Instructions  Must  be  Relevant  to  Issues. 

11.  Requested  instructions  based  on  Issues  not  made  by  the  pleadings  should 
be  refused.  BuU  v.  Payne,  580;  Ooldard  v.  MarBhall,  271. 

Instructions  Should  Not  Emphasize  Special  Testimony. 

12.  Courts  should  not  lay  special  stress  on  particular  Items  of  testimony  In 
charging  Juries,  or  say  that  a  stated  result  necessarily  follows  the  determination 
of  a  particular  claim.  Price  v.  Oregon  Hailroad  Co.  350. 

Effect  of  Inconsistent  Instructions. 

13.  The  giving  to  a  Jury  of  conflicting  instructions  on  a  given  point  constitutes 
reversible  error,  even  though  one  instruction  may  have  been  correct. 

NeU  V.  Whitaker,  517. 
Instruction  —  Assuming  Admitted  Facts. 

14.  Trial  Judges  may  mention  in  their  instructions  fiacts  as  to  which  there  is 
no  dispute,  without  invading  the  province  of  the  Jury.  State  v.  Wat$on,  543. 

Trial  by  Court— Time  for  Submitting  Propositions. 

15.  Section  134,  B.  &  C.  Com  p.,  providing  that  any  party,  when  the  evidence  is 
closed,  may  submit  in  distinct  and  concise  propositions  the  conclusions  of  fact 
which  he  claims  to  be  established,  or  the  conclusion  of  law  which  he  desires  to 
be  adjudged,  or  both,  does  not  apply  to  a  trial  of  an  issue  of  fact  by  the  court 
alone,  and  hence  a  demand  for  additional  conclusions  of  fact  made  before' the 
ntry  of  Judgment  on  the  findings  is  not  too  late.  AfeCtung  v.  McPherson,  73. 

Trial  by  Court  — Findings  Must  Follow  Pleadings. 

16.  Findings  outside  the  issues  of  the  pleadings  are  nullities  and  will  not  sup- 
port, any  final  order,  not  being  responsive  to  the  issues. 

Boothe  V.  Farmer*  Nat,  Bank,  299. 
Waiver  of  Defect  in  Evidence  by  Not  Objecting. 

17.  A  defect  in  the  form  or  sufiflciency  of  writings  ofl!'ered  in  evidence  is  waived 
unless  objected  to  when  the  evidence  is  offered.  Thus:  Failure  of  a  tenant  to 
object  to  the  introduction  in  evidence  of  a  notice  to  quit  signed  by  his  landlord's 
attorneys  concedes  the  attorneys'  authority  to  sign  the  notice. 

McClung  v.  yfcPherson,  78. 
TRIAL  JUDGES.    Efl^ect  of  Remarks  by.    SeeTRiAL,  1. 
TROVER  AND  CONVERSION. 

Irregular  Foreclosure  — Conversion  of  Chattels  by  Mortgagee  —  Pleading  Mat- 
ter In  Mitigation  of  Damage.    See  Chattel  Mortgages,  1,  2. 
Conversion  of  Property  of  a  Detredent— Liability  for  Aggravated  Damages — 
Need  of  Pleading  Statute.    See  Executors  .t  Administratoiw,  «. 
47  Or. 45 


706  Index. 

TRUSTS. 

MORTQAGEB  IN  POSSESSION  AS  TRUSTEE. 

1.  A  mortgagee  In  possession,  though  in  some  sense  a  trustee,  is  qualified  to 
purchase  the  security  when  it  is  sold  at  execution  sale  under  his  own  or  a  prior 
lien,  as  a  means  of  protecting  his  own  claim.  Marquam  v.  RoaM^  374. 

Right  op  Trustee  to  Purchase  Trust  Property. 

2.  A  trustee  holding  the  title  to  property  will  not  be  permitted  to  purchase  it 
for  his  own  benefit  where  his  duty  as  trustee  obligates  him  to  secure  a  maximum 
price,  or  where  such  purchase  would  be  otherwise  in  contravention  or  violation 
of  his  duty,  and  if  such  a  purchase  is  made,  equity  will  consider  it  as  having 
been  for  the  benefit  of  the  cestui  que  trust,  regardless  of  the  price  paid  and  with- 
out reference  to  actual  fraud.  Marquam  v.  /toM,  374. 

Effect  of  Power  of  Sale  in  Deed  of  Trust. 

3.  An  authority  to  sell  contained  in  a  conveyance  of  property  In  trust  does 
not  authoriase  a  sale  except  by  a  foreclosure  and  decree,  under  Section  423,  B.  A  C. 
Com  p.,  providing  that  a  lien  upon  real  or  personal  property,  other  than  that  of  a 
Judgment  or  decree,  must  be  foreclosed  by  a  suit  In  equity. 

Mcwqitam  v.  Ros»,  374. 
Duty  of  Trustee— Advances. 

4.  A  mortgagor,  at  the  time  the  mortgage  was  made,  deeded  the  property  to 
a  trustee  under  an  agreement  that  the  latter  should  take  possession  and  collect 
rents  and  profits  and  apply  them  to  Interest,  taxes,  expenses,  etc.  The  deed 
obligated  the  trustee  to  make  specified  advances,  Interest  on  the  mortgage  not 
being  specifically  mentioned,  and  recited  that  it  might  become  necessary  for  the 
trustee  to  make  other  advances,  in  which  case  it  should  be  entitled  to  a  Hen  on 
the  property  therefor.  Held^  that  the  trustee  was  not  bound  to  make  advances 
to  pay  Interest  on  the  mortgage  to  prevent  a  foreclosure.      Marquam  v.  Ro»9,  374. 

Misconduct  of  Trustee  in  Possession. 

5.  In  a  suit  to  redeem  certain  property  from  foreclosure  sale,  evidence  held 
insufllclent  to  show  that  a  trustee  of  the  property  in  possession  was  responsible 
for  the  foreclosure,  it  appearing  that  the  total  receipts  were  not  snfl!lclent  to  pay 
interest  on  a  prior  mortgage  as  itbeisame  due,  even  when  applied  t-o  that  purpose, 
to  the  exclusion  of  taxes  and  other  charges.  Marquam  v.  Ro»s^  2nA. 

Mutual  Construction  of  Contract. 

tt.  Where  a  trustee  of  the  rents  of  mortgaged  property  makes  charges  and 
credits  in  its  account  according  to  ItA  understanding  of  the  agreement  under 
which  it  holds  possession,  and  where  itemized  statements  of  these  accounts  con- 
taining such  charges  are  rendered  by  such  trustee  to  the  mortgagor  and  retained 
by  him  without  objection  until  after  suit  is  brought  to  foreclose  the  mortgage, 
the  mortgagor  in  several  instances  executing  promissory  notes  for  balances 
shown  to  t>e  due  ay  such  statements,  the  mortgagor  will  be  held  to  have  accepted 
the  construction  of  the  agreement  made  by  the  trustee  in  so  far  as  it  relates  to  the 
right  of  the  trustee  to  make  the  charges  and  credits  shown  by  the  statements. 
In  such  case  the  course  of  dealing  constitutes  a  practical  construction  of  the  con- 
tract which  will  bind  both  parties.  Mttrquam  v.  JF?o<«,  .S74. 

Evidence  of  Malicious  Foreclosure. 

7.  The  evidence  does  not  show  that  the  trustee  In  possession  Instigated  or  en- 
couraged the  foreclosure  of  a  prior  lien,  in  which  proceeding  the  trustee  foreclosed 
its  lien,  but  it  shows  afiarmatlvely  that  the  trustee  exercised  due  diligence  to 
avert  the  foreclosure.  Marquam  v.  R099, 874. 


Index.  707 

Construction  of  Trust  Agreement. 

8.  The  agreement  under  consideration  in  this  case  made  the  Title  Guarantee 
&  Trust  Co.  a  second  mortgagee  in  possession,  and  the  trust  created  was  with  ref- 
erence to  the  title  and  only  for  the  purpose  of  managing  the  property,  and  when 
the  superior  mortgage  was  foreclosed  the  trust  ended.  Marqtiam  v.  Ross,  1(74. 

Idem. 

9.  The  supplemental  agreement  under  consideration  here  was  in  effect  a 
mortgage  of  the  property  therein  described  to  the  trustee  for  the  benefit  of  a 
named  creditor,  and  it  did  not  change  the  conditions  created  by  the  original  con- 
tract between  the  same  parties.  Marquam  v.  Ross,  37-1. 

UNLIQUIDATED  DAMAGES. 

Interest  Not  Allowable  Until  Judgment.    See  Interest. 

UNITED  STATES  CONSTITUTION. 

Same  as  Con.stitution  of  the  United  States. 

UNITED  STATES  STATUTES.    Same  as  Statutes  of  the  United  States. 

VACATING  JUDGMENT. 

Power  of  Court  Over  Void  Order  After  Close  of  Term.    See  Judgment,  2. 

VARIANCE  Between  Pleading  and  Proof.    See  Pi^eading,  (>,  7,  8. 

VENUE. 

Change  of  Venue— Discretion. 

Where  affidavits  on  an  application  for  a  change  of  venue  on  the  ground  of 

1  prejudice  are  conflicting,  and  It  appears  that  a  Jury  was  selected  without 

«ual  difficulty,  it  cannot  be  said  that  the  court  abused  Its  discretion  in  deny- 

/ 1  he  moti on.  State  v.  Stnith,  485. 

iCRDICT. 
Refusing  New  Trial  for  Excessive  Damages.    See  Appeal.,  10. 
'     Reducing  Allowance  of  Damages  for  Injuries.    See  New  Trial. 

VESSELS.    See  Shipping. 

VICE  PRINCIPAL. 

Negligence  of— Liability  of  Railroads  for.    See  Master  a  Serv.  8. 

VOTERS. 

Who  are  Entitled  to  Vote  Under  the  Oregon  Constitution.    See  ELEcn'iONS,  1. 
Limitation  on  Right  to  Vote  at  City  Election.    See  Const.  Law,  3. 

WAIVER. 

loosing  Right  to  Plead  That  Claim  is  Outlawed.    See  Lim.  of  Actions,  2. 
Losing  Benefit  of  Special  Contract  Limitation.    See  Indemnity,  4,  7. 
Builders  Covenant  Against  Liens  as  a  Waiver.    See  Mecu.  Liens,  2. 
Plea  in  Abatement— Waiver  of  by  Answering.    See  Pleading,  14. 
Ix>ss  of  Objections  Not  Made  at  Proper  Time.    See  Trial,  17. 
Objection  of  Insufficiency  of  Complaint  on  Appeal.    See  Appeal,  3. 
Notice  to  Quit— Waiving  Service  of  by  Landlord.    See  Land,  a  Ten.  5. 
Insufficiency  of  Pleading  Is  Never  Waived.    See  Pleading,  18. 

WARRANTY. 

Remedies  of  Purchased  for  Breach  of.    See  Sales,  1. 
Implication  In  Sales  by  Description.    See  Sales,  2. 


708  Index. 

WATERS. 

Initiation  of  Appropriation  — Right  by  Relation. 

1.  Tbe  right  to  the  uhc  of  the  waters  of  a  stream  relates  back  to  its  Initiation 
by  an  appropriator,  and  not  to  the  time  when  his  ditches  were  completed,  pro- 
vided^the  work  of  dlgf^lng  them  wiu:  prr>seciited  with  reasonable  diligence. 

Morgan  v.  8haw,  33S. 
EviDKNCE  or  Priority  of  Appropriation. 

2.  Where  the  prior  appropriation  of  waters  of  a  public  stream  is  in  issae, 
declarations  of  defendant  that  bis  right  to  the  use  of  the  water  was  a  subsequent 
one  IK  Huffloient  to  show  a  prior  appropriation  by  plaintiff  when  corroborated 
by  the  fact  that  for  18  years  defendant  permtlled  snfflcient  water  to  flow  in  the 
cliannel  of  the  sti^cain  to  irrigate  plaintiff's  land.  Morgan  v.  Shaw,  SSt. 

Riparian  Rights— Common-law  Doctrine  — Prior  Appropriation. 

8.  Where,  as  in  Oregon,  the  common-law  doctrine  of  riparian  rights,  as  modi- 
fled  by  the  rule  of  prior  appropriation,  Is  recognized,  when  a  prior  settler  on 
public-land  through  which  a  stream  flows  appropriates  the  waters  of  such  stream 
for  irrigating  purposes,  the  stream  is  not  flowing  through  public  lands  at  tbe  time 
of  a  diversion  of  the  water  thereot  made  by  a  subsequent  settler. 

Morgan  v.  Shaw,  833. 

Effect  of  Appropriation  on  Adjacent  Land. 

4.  An  appropriation  of  water  is  a  grant  by  the  general  government  to  a  setMer 
on.public  land  of  the  right  to  its  use  from  a  nonnavlgable  stream,  to  the  li^   I'y 
of  all  public  land  above  the  point  of  diversion,  which  may  be  within  or  be> 
the  boundaries  of  the  settler's  claim.  Morgan  v.  Shaw. 

Distinction  Between  Surface  Water  and  Stream  Water.  the 

5.  Water  that  is  diflXised  over  the  ground  unconnected  with  a  stream  is   on 
face  water;  while  the  water  that  is  part  of  the  flowing  volume  is  stream  wi  ce« 
whether  the  stage  be  high  or  low,  within  the  banks  or  out  along  adjacent  groiit74. 
In  this  case  the  water  that  caused  the  injury  was  a  continuous  flowing  volui. 
and  therefore  not  surface  water  but  flood  water. 

Price  V.  Oregon  Railroad  Co.  35* 

Extraordinary  Flood  — Question  for  Jury. 

6.  It  is  for  the  Jury  to  say  whether  a  flood  is  such  as  ought  to  have  been 
expected  and  provided  against,  or  was  extraordinary  and  unprecedented,  and 
therefore  such  as  need  not  reasonably  have  been  anticipated. 

Price  V.  Oregon  Railroad  fb.  SSO. 
Duty  Not  to  Obstruct.    See  Railroads,  S,  4. 

WILLS. 

Measure  of  Testamentary  Capacity. 

Where  a  testator  understands  what  he  is  doing  at  the  time  he  executes  his 
will,  and  clearly  recalls  what  property  he  owns  and  how  he  wishes  it  to  be  dis- 
posed of,  he  has  legal  testamentary  capacity,  though  he  may  be  advanced  in 
ypars  and  blck  and  in  extreme  physical  distress.  Barents  Will,  807. 

WITNESSES. 

Impeaching  by  Contradictory  Statements. 

1.  Under  Section  858,  B.  &  C.  Com  p.,  authorizing  the  impeachmentof  a  witness 
by  evidence  that  he  has  made  previous  statements  inconsistent  with  bis  testi- 
mony, a  witness  in  homicide  cannot  be  impeached  by  the  production  of  a  tran- 
script of  the  testimony  given  by  him  at  the  inquest,  nor  by  the  reading  of  the 
stenographer's  notes  of  such  testimony  where  the  stenographer  is  unable  to  say 
that  his  notes  contain  all  that  the  witness  stated  at  the  inquest. 

SUite  v.  Martin,  2ft£. 


Index.  709 

Expert  Witness— Certainty  of  Objection. 

2.  An  objection  to  a  question  forincompetenoy  does  not  support  an  argument 
that  the  witness  was  not  shown  to  be  quaUfled  to  express  an  opinion  on  the  sub- 
ject referred  to,  there  being  u  difference  between  the  competency  of  a  question 
and  the  competency  of  the  witness.  State  v.  Martin,  282. 

WORDS  AND  PHRA8K8. 

"Alimony." 

The  allowance  to  a  wife  out  of  ber  husband's  estate,  either  pendente  lite  or 
after  a  divorce,  called  "Alimony,"  Ik  n  money  allowance  both  at  common  law 
and  under  the  Oregon  Statute,  Section  518,  B.  &  C.  Comp.,  and  It  cannot  be  made 
In  property.  Hufftnan  v.  Huffman,  (51-1,  617. 

"Charttring"  in  Shipping  Charter. 

The  word  "chartering"  in  a  charter  party  whereby  the  owner  of  a  vessel 
agrees  on  the  freighting  and  "chartering'*  thereof  to  the  charterer  for  voyage, 
does  not  necessarily  mean  a  letting  of  the  vessel  by  way  of  demise,  but  is  equally 
consistent  with  the  idea  of  a  contract  of  affreightment. 

(frimberff  v.  Columbia  Pa^ikers*  Assoc.  257. 

"Final  Judgment." 

The  phrase  "final  Jndgment,"  used  In  Section  5654,  B.  A  C.  Comp.,  providing 
for  an  undertaking  on  appeal  In  actions  of  forcible  detainer  that  shall  secure 
twl  'e  the  rental  value  of  the  property  "until  final  Judgment"  In  the  cane,  means 
the  last  Judgment  that  may  be  entered  in  any  court  to  which  the  appeal  may  be 
finally  prosecuted.  Wol/er  v.  Hurst,  156. 

"Freighting"  in  Shipping  Charter. 

The  w^ord  "freighting"  In  a  charter  party,  whereby  the  owner  of  a  vessel 
agrees  on  the  "freighting"  and  chartering  thereof  to  the  charterer  for  a  voyage, 
meansaloadlng  with  goods  for  transportation,  and  does  not  Indicate  a  demise 
of  the  vessel  to  the  charterer.  Orimberg  v.  Columbia  Packers*  Assoc,  257. 

"Habitually." 

As  used  In  an  instruction  that  In  order  to  be  bound  by  the  conduct  of  an 
alleged  agent  the  principal  must  have  "habitually"  allowed  the  agent  to  repre- 
sent him,  and  that  the  agent  must  have  "habitually"  acted  In  similar  matters, 
the  word  "habitually"  does  not  mean  so  often  repeated  as  to  be  a  habit,  but 
rather  that  if  the  principal  ratified  all  the  contracts  assumed  to  have  been  made 
by  such  agent,  the  agency  might  be  implied,  while  if  any  of  such  contracts  had 
been  repudiated,  such  disavowal  would  repel  such  implied  agency. 

Marks  v.  Herren,  606. 

"Manner." 

As  used  In  Const.  Or.  Art.  VI,  %  7,  authorizing  the  election  of  city  ofllcers  "in 
such  manner  as  ixmy  be  prescribed  by  law,"  the  word  "manner"  means  the  par- 
ticular way  of  conducting  an  election.  Livesley  v.  Litchfield,  *2S&,  255. 

"May." 

As  used  in  Section  5362,  B.  &  C.  Comp.,  providing  that  mortgages  "may"  be 
assigned,  the  word  "may"  has  a  permissive  and  not  an  imperative  meaning. 

Barringer  v.  Loder,  228. 

"Owner." 

A  man  who  has  settled  on  a  piece  of  public  land  Intending  to  obtain  title 
thereto,  is  not  the  "owner"  of  such  land;  it  is  not  owned  by  him  so  that  any 
interest  in  It  can  be  affected  by  a  divorce  decree.       Huffman  v.  Huffman,  616,  617. 

"Property"  Under  Attachment  Statute. 

Is  the  Inchoate  right  of  survivorship  of  a  tenent  by  the  entirety  such 
"property"  as  can  be  levied  upon  and  sold  under  Section  296,  B.  &  C.  Comp? 

Oliver  v.  Wright,  822. 


710  Index. 

"Surplusage." 

When  unueceHsary' matter  hatibeen  left  in  a  pleading  and  has  no  proper  place 
there  It  is  called  "surplusage,"  and  it  should  be  disregarded  at  the  trial. 

Neisv.  Whitfiker,  5il. 

"Redundant." 

Unnecessary  matter  in  a  pleading  is  called  "redundant"  when  there  is  a  mo- 
tion to  strike  it  out.  NeU  v.  WhUaker,  521. 

WRIT  OF  REVIEW. 

Nature  and  Use  of  Writ. 

1.  The  writ  of  review  in  Oregon  is  substantially  the  common  law  remedy  ot 
certiorari,  and,  like  that  remedy,  it  is  granted  or  refused  at  the  discretion  of  the 
court.  Oregon  Railroad  Co.  v.  Umatilla  Onmty^  19K. 

Appeal  from  Municipal  Courts— Review. 

2.  The  right  of  appeal  from  a  municipal  court  cannot  be  conferred  by  an  ordi- 
nance of  the  city,  and  the  remedy  In  such  cases  is  by  writ  of  review,  where  no 
api)eal  is  provided  for  by  the  charter.  Wong  Sing  v.  Independence.  231. 


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