Volume 100 — Oregon Reports

From Marion: G-eoege G-. Bingham, Judge. Department 1. This proceeding was brought in the name of the state upon the relation of the Salem King’s Products Company, a corporation, against J. W. La Follette for an alleged contempt of court. The Circuit Court held that La Follette was guilty of a contempt of court on account of having willfully disobeyed a preliminary injunction issued in a suit begun by the Salem King’s Products Company against J. W. La Follette.

<p>Appeal and Error — Right of Appeal Only Statutory.</p> <p>1. The right of appeal exists only when some statute gives it, and therefore a party cannot maintain an appeal unless his cause comes within the embrace of a statute granting the right of appeal.</p> <p>Appeal and Error — “Order Final” When It Determines the Rights of the Parties.</p> <p>2. An order is “final” for the purpose of an appeal under Section 548, Or. L., when it determines 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.</p> <p>Appeal and Error — Nonappealable Order Reviewed on Appeal from Judgment or Decree.</p> <p>3. An intermediate order which affects a substantial right of a party, even though not appealable, may nevertheless be reviewed on appeal; but it is brought by an appeal to the appellate court from a judgment or decree and not by an appeal from the order itself, under Sections 534, 548, 549, Or. L.</p> <p>Appeal and Error — Void Judgments and Decrees Appealable.</p> <p>4. Void judgments and decrees, even though entered after default, are appealable under Section 534, Or. L.</p> <p>Appeal and Error — Void Order Granting Preliminary Injunction Appealable — “Final Order.”</p> <p>5. If an order is absolutely void because made without jurisdiction, it is final in its legal significance and is therefore appeal-able under Sections 548, 549, Or. L., and hence an appeal would lie from an absolutely void order granting a preliminary injunction.</p>

<p>Taxation — Statute Imposes Inheritance Tax on Estate Passing to Legatee or Other Beneficiary.</p> <p>1. Under the Inheritance Tax Act (Or. L., § 1191), as amended by Laws of 1917, page 799, and Laws of 1919, page 697, the tax is imposed, not on the estate passing from the decedent, but on the estate passing to the legatee or other beneficiary.</p> <p>Taxation — Inheritance Tax, Though Computed on Aggregate Estate, is Tax on Each Specific Gift.</p> <p>2. Under the Inheritance Tax Act (Or. L., § 1192), as amended by Laws of 1917, page 799, and Laws of 1919, page 697, all of a decedent’s estate subject to distribution under the will or inheritance laws after the exemption of $10,000 shall pay a tax as specified, and though the tax is computed on the aggregate estate as it exists before distribution, it remains in no wise other than a tax on each specific gift, legacy or inheritance; for it is computed on the total of such gifts, legacies and inheritances, and its apportionment among the several beneficiaries presents no difficulties.</p> <p>Statutes — Inheritance Tax Act not to Embrace Subject not Expressed in Title.</p> <p>3. The Inheritance Tax Act (Or. L., § 1192), as amended by Laws of 1917, page 799, and Laws of 1919, page 697, in undertaking to levy an estate tax, is not violative of Article IV, Section 20, of the Constitution, as embracing a subject not expressed in the title of the original act, which was limited to the taxing of gifts, legacies and inheritances.</p> <p>1. For authorities passing on the question as to nature of inheritance tax, see note in 33 L. R. A. (N. S.) 606.</p> <p>2. Whether inheritance tax is payable out of estate or out of legacy or devise, see note in 20 Ann. Oas. 1358. .</p> <p>Whole estate or individual shares as basis of computation of inheritance tax, see note in 7 A. L. R. 688.</p>

<p>Assignments — Evidence Held to Show Lumber was Invoiced as Assignees’ Property, and That Broker Knew It was Subject to Assignment.</p> <p>1. Evidence held to show that a lumber company, assigning all lumber on the docks or in process of loading to plaintiffs, shipped and invoiced the carloads in controversy as plaintiffs’ property to a broker, and that the broker knew and recognized that they were shipped under the terms and conditions of the assignment.</p> <p>Estoppel — Broker Receiving Lumber as Property of Assignees Held not Entitled to Deny That It was Covered by Assignment.</p> <p>2. Where a lumber company, assigning lumber on the docks or in process of loading to plaintiffs with a provision that it should be shipped to a broker and the proceeds paid plaintiffs, shipped and invoiced two carloads as plaintiffs’ property, the broker which received and accepted them, knowing that they were shipped under the assignment, was bound to account to plaintiffs and could not deny that such lumber was on the docks or in process of loading so as to be covered by the assignment.</p> <p>Chattel Mortgages — Assignment of Lumber to Secure Debt Held in Effect a Chattel Mortgage.</p> <p>3. An assignment of lumber to secure the payment of a debt, with the agreement that it should be shipped to brokers to whom the assignor had been shipping lumber and the proceeds paid the assignee by the brokers, was in legal effect a chattel mortgage good as between the parties and as against the brokers having notieo of its purpose and intent.</p> <p>Account — Suit Against Lumber Brokers by Assignee of Lumber Shipped for Sale Held Within Jurisdiction of Equity.</p> <p>4. Where a lumber company assigned lumber to secure a debt with the provision that it should be shipped to brokers to whom the company had been shipping and the proceeds paid the assignee by the brokers and the brokers with knowledge of the assignment received and accepted the lumber, but refused to account to the assignee for the proceeds, and the assignee did not know what the proceeds were, equity had jurisdiction of a suit for an accounting.</p>

<p>Sales — Petition Alleging Indebtedness for Goods Sold and Delivered Held Insufficient.</p> <p>1. A cause of action, pleading the mere legal conclusion that defendant was indebted to plaintiff for goods sold and delivered to defendant at its special instance and request, without alleging who furnished the goods, what their value was, or that defendant promised to pay for them, was insufficient.</p> <p>Money Paid — Cause of Action, Though Indefinite, Held Sufficient.</p> <p>2. A cause of action, alleging that plaintiff at defendant’s request advanced a specified sum for freight on a truck, which defendant promised and agreed to pay, while indefinite, was sufficient, in the absence of a motion to make it more definite and certain.</p> <p>Pleading — Cause of Action for Commissions, Though Indefinite, Held Sufficient, in Absence of Motion.</p> <p>3. A cause of action, alleging that plaintiff and defendant entered into a contract whereby defendant agreed to pay a commission on the sale of automobiles and trucks, that plaintiff pursuant thereto sold one automobile and one truck, and that the commission thereon was a specified amount, which defendant had failed to pay, though payment had been demanded, except the sum of $100, leaving a specified balance, though indefinite, was sufficient, in the absence of a motion to make it more definite and certain.</p> <p>Pleading — Answer Containing Denial and Allegation of Payment Held to Admit Rendition of Services.</p> <p>4. In an action for a commission agreed to be paid on sales of automobiles, an answer denying all the allegations of the complaint, and alleging that plaintiff assisted in selling automobiles and trucks, and was paid in full for his services, when construed most strongly against the pleader, showed that plaintiff rendered the services, but had been paid therefor.</p> <p>Names — Appending Address, Including Name of Garage, to Signature, not Use of Assumed Name.</p> <p>5. Appending the address, “City Garage, Dallas, Oregon,” to a party’s signature to a contract, did not constitute the use of a fictitious or assumed name, not registered as required by Section 7777, Or. L., so as to prevent a recovery on the contract.</p> <p>Abatement and Revival — Objection That Plaintiff is Doing Business Under Assumed Name Should have Been Raised by Plea in Abatement.</p> <p>6. The objection that the contract sued on showed plaintiff was doing business under a fictitious or assumed name, contrary to Section 7777, could be raised only by plea in abatement, where the fact did not appear in the complaint.</p> <p>Pleading — Misjoinder of Causes Waived, When Objection not Taken by Demurrer.</p> <p>7. Under Section 72, Or. L., the objection that causes of action are improperly joined was waived, when there was no demurrer on that ground.</p> <p>Action — Causes of Action for Goods Sold, Moneys Advanced, and Commissions on Sales may be Joined.</p> <p>8. Causes of action for goods sold, moneys advanced for the payment of freight charges at defendant’s request, and commissions agreed to be paid on sales of automobiles all arose out of contract, and were properly joined, under Section 94, Or. L.</p>

<p>Constitutional Law — Compensation for Property Taken is a Judicial Question.</p> <p>1. The legislature cannot fix compensation for property taken under the power of eminent domain; such matter is a judicial, and not a legislative, question.</p> <p>Eminent Domain — City Held Authorized by Charter to Lay Out and Open Streets.</p> <p>2'. Under Hood River City Charter (Sp. Laws 1901, p. 817), Chapter 8, Section 49, and Chapter 9, Sections 75, 80, 84, 87, the city is fully authorized to lay out, establish, and open streets.</p> <p>Eminent Domain — Common Council on Writ of Review of Proceedings to Open Street must Show Qualifications of Assessors.</p> <p>3. The condemnation of real property not being an ex parte, but strictly an adversary, proceeding, the common council of a city in the exercise of its functions under the charter in opening a street should be required on writ of review affirmatively to show the qualifications of the assessors of damages.</p> <p>Highways — Municipal Corporations — Termini of County Road or City Street must be Definitely Located.</p> <p>4. It is essential to the lawful location of a county road or a city street that the termini of the same be definitely located.</p> <p>Navigable Waters — City Council Without Power to Locate Street Across Navigable Waters.</p> <p>5. The city council of Hood River has no power to locate a street extending to the north line of the city of Hood River, which north line coincides with the north line of Hood River county, which is in the navigable waters of the Columbia River, as authority in a city to lay out highways does not include power to lay one out over navigable waters.</p> <p>Navigable Waters — Lands Under Navigable Waters of River Belong to State.</p> <p>6. Lands under the navigable waters of the Columbia River within the corporate limits of the city of Hood River are the property of the State of Oregon.</p> <p>5. Right to loeate highway over or into navigable waters, see note in 14 Ann. Cas. 288.</p> <p>6. Power of state to grant title to land under navigable water, see notes in 53 Am. St. Rep. 297; Ann. Cas. 1918B, 1107.</p>

<p>Evidence — Expert not Allowed to' Draw Inferences of Fact.</p> <p>1. An expert is not allowed to draw inferences or conclusions of fact from the evidence, and his opinion should be exact upon a hypothetical statement of fact.</p> <p>Evidence — Party Entitled to Opinion of Expert on Any Facts Supported by Testimony.</p> <p>2. It is the privilege of counsel to assume any state of facts which there is any testimony tending to prove, and to have the opinion of the expert based on the facts assumed, but the testimony should tend to establish the facts embraced in the question, and if the hypothetical question is clearly exaggerated and unwarranted by any testimony in the ease, an objection to it should be sustained.</p> <p>1. Who are experts and in what cases expert testimony is admissible, see note in 66 Am. Dec. 228.</p> <p>Evidence — Form of Hypothetical Question.</p> <p>3. The form of a hypothetical question, whether it states facts, or puts facts hypothetically, or refers to the testimony of witnesses as being true, should be shaped so as to give the witness no occasion or opportunity to decide upon the evidence.</p> <p>Evidence — Hypothetical Questions Should not Seek Opinion on Merits.</p> <p>4. Hypothetical questions are clearly improper if they directly seek the opinion of the witness on the merits of the ease.</p> <p>Evidence — Opinions of Physicians Admissible as to Proper Medical Treatment.</p> <p>5. In malpractice case the question of whether the physician had adopted the proper treatment is one in which the opinions of medical men may be received in evidence, and they may state whether in their opinion the treatment was improper or not, and whether it was in conformity with the rules and practice of the profession.</p> <p>Evidence — Opinion Evidence Rule Concerning Conclusions on Merits not Absolute.</p> <p>6. As the opinion evidence rule is intended to provide against the danger of invasion of the province of the jury, the court should, as far as possible, exclude the inference, conclusion or judgment of a witness as to the ultimate fact in issue, even though the circumstances presented are such as might warrant a relaxation of the rule excluding opinions but for this circumstance, but the rule is not absolute, for it frequently occurs that the only possible or practicable method of making proof of the fact in issue is by means of opinion evidence.</p> <p>Evidence — Question to Physician Held Improper as Invading Province of Jury.</p> <p>7. In malpractice case it was error to allow plaintiff to ask expert witness whether application of side splints to broken wrist was “unskillful and negligent,” as the expert’s opinion would leave little or nothing for the jury to determine, as improper treatment by a surgeon might be due to an error in judgment of a skillful surgeon, honestly and carefully exercised, and not constitute negligent treatment.</p> <p>3. Necessity that hypothetical question to witness contain all evidence on point in issue, see note in 18 Ann. Cas. 646.</p> <p>4. Whether expert witness may give opinion as to the ultimate fact, see note in Ann. Cas. 1914B, 191.</p> <p>Physicians and Surgeons — Honest Error in Judgment Does not Constitute Negligent Treatment.</p> <p>8. Improper treatment by a surgeon might be due to an error in judgment of a skillful surgeon honestly and carefully exercised and not constitute negligent treatment.</p> <p>Evidence — Physician Competent to Give Opinion, Although Never Treating a Similar Case.</p> <p>9. The fact that a physician skilled in medicine and surgery had never treated a broken wrist with infection would not disqualify him from giving his opinion as to the correct manner of applying splints to a broken wrist with infection.</p> <p>Evidence — Court Erred in not Permitting Medical Expert to Testify as to Effect of Sloughing upon Broken Radius Bone.</p> <p>10. In malpractice ease, where there was a broken wrist and infection and a discharge by the infection, held that court erred in not permitting expert witness for defendant to testify as to the effect that sloughing would have upon the radius bone and its ability to unite.</p> <p>Trial — Instruction in Malpractice Case Held Outside of Case.</p> <p>11. In a malpractice case, where it was alleged that defendant failed to exercise requisite skill and knowledge, and not that defendant did not possess requisite knowledge and skill, court erred in charging, “A surgeon must inform himself as to the facts and circumstances of the particular case under his investigation, and, if he fails to do so, or fails to possess the knowledge or experience and skill to handle such a ease, and a party, by such failure is injured, then the party injured is entitled to recover,” since it added to the issues and might lead the jury outside the case and to consider the qualifications of defendant.</p> <p>Physicians and Surgeons — Instruction in Malpractice Case Held Within the Complaint.</p> <p>12. Where plaintiff had a broken wrist, an instruction that it was the duty of a surgeon to use reasonable care and diligence in undertaking to reduce the fracture and place the bones in apposition was not open to the objection that there was no claim in the complaint that defendant was careless in reducing the fracture, or that he did not use proper appliances in the proper manner, where plaintiff alleged that the bones were never put into nor kept in apposition, which refers to the reducing of the fracture and the use of appliances to keep the bones in apposition.</p> <p>8. Liability of physician for making wrong diagnosis, see note in Ann. Cas. 1917D, 708.</p> <p>9. Competency of physician to testify as expert in respect to wound or injury where he has not had similar case, see note in 14 Ann. Cas. 137.</p>

<p>Bills and Notes — Purchase After Failure to Pay Interest may be Before Maturity for Value.</p> <p>1. If a note did not contain an acceleration clause, and had not matured because of failure to pay accrued interest, a purchaser thereof in good faith for value was a purchaser before maturity for value.</p> <p>Setoff and Counterclaim — Only Defenses Existing at Time of Assignment can be Interposed.</p> <p>2. Makers of note can interpose against an assignee only such defenses, equities and counterclaims as existed in their favor against the payee before notice of the assignment, under Section 28, Or. L.</p> <p>1. Failure to pay periodical installment of interest as making note overdue, see notes in 11 Ann. Cas. 42; Ann. Cas. 1912C, 305.</p> <p>Effect on liona fides of purchase of promissory note that there is interest due and unpaid on it, see note in 11 A. L. E. 1277.</p> <p>Setoff and Counterclaim — Cause of Action Extinguished by Judgment and Could not be Set Up as Counterclaim.</p> <p>3. Unliquidated claims against payee in note, made certain by a judgment after assignment of the note pending the action, were extinguished in the judgment, so that they could not be used, either as a cause of action or counterclaim in an action on the note, and the judgment was not binding on the assignee, and could not be set up as a counterclaim.</p>

<p>Prom Josephine: Prank M. Calkins, Judge.</p> <p>Department 1.</p> <p>This is a suit to quiet title to certain mining property. Defendant, Mrs. Smith, answered that she held the title to the property as security, together with other security, for the payment of $12,500 and interest. A decree was rendered in favor of defendant. Plaintiff appeals.</p> <p>On March 28, 1902, Jefferson D. Cook and Gr. E. Howland were engaged in a placer mining enterprise in Josephine County, Oregon, operating the mine and holding title through the medium of a domestic corporation known as Hydraulic Mining Company, in which they were the sole stockholders. About this time they conceived the idea of embarking in certain timber and lumbering enterprises, and to that end desired to acquire timber lands and carry on a saw-milling business. In order to finance their operations, they procured the defendant, Elizabeth A. Smith, to loan them the sum of $12,500 with which to acquire timber lands from the Oregon-Califomia Railroad Company, and otherwise to finance their Operations." The agreement for the furnishing of these moneys by Elizabeth A. Smith closed in the name of the Hydraulic Mining Company on March 28, 1902, at which time, in order to secure the payment of the money, the Hydraulic Mining Company, by Gr. E. Howland, its president, and J. D. Cook, its secretary, executed to Elizabeth A. Smith its deed of conveyance of the various placer mining claims comprising the mining property of the Hydraulic Mining Company, the water rights, and a certain mining lease. Concurrently with the execution of the deed, Elizabeth A. Smith executed to the Hydraulic Mining Company a bond conditioned to reconvey the property on the repayment of the sums loaned with interest at 7 per cent per annum. The bond was attached to and made a part of a concurrent agreement between Hydraulic Company, J. D. Cook, and G. E. Howland, as the first parties, and Elizabeth A. Smith, as the second party, reciting that $6,000 was furnished by Elizabeth A. Smith up to that time, and wherein Elizabeth A. Smith agreed to furnish the balance of $6,500 in installments, and in consideration thereof the first parties further agreed to transfer to Elizabeth A. Smith all lands that should be purchased from the Oregon-California Railroad Company, and to assign all contracts for the purchase of lands from the railroad company as further and additional security for the loan, it being recited in the last paragraph of the contract as follows:</p> <p>“It being particularly understood and agreed, that the sum of $12,500 is a loan by said second party to the first parties for the purchase of timber lands in Jump-off-Joe District lying in Townships 34 and 35 South, Ranges 4 and 5 "West of Willamette Meridian in Jackson and Josephine Counties, Oregon, and all lands purchased or contracted for shall be conveyed by the first parties, or their agent, to said second party for the purpose of securing said sum of $6,000 now paid, and the further sum of $6,500 to be advanced as hereinbefore provided.”</p> <p>The deed aforesaid was immediately placed of record during the year 1902, but the contract was not placed of record by plaintiff until 1917. Elizabeth A. Smith furnished the full sum of $12,500 in installments at various times, and received in evidence of the obligation to repay the same, notes of the Hydraulic Mining Company, guaranteed by Jefferson D. Cook and George E. Howland, due March 28, 1907. These notes have never been surrendered up or canceled, and are still held by the defendant. The principal is wholly unpaid, and the interest thereon partially so. With the money thus borrowed Messrs. Howland and Cook acquired various tracts of timber land, which they deeded to Elizabeth A. Smith as further security for the notes, and she held the same until about June 10, 1907.</p> <p>About the year 1905, Gr. E. Howland and J. D. Cook organized a domestic corporation known as Three Pines Timber Company, and thereafter organized a corporation known as Three Pines Lumber Company, both of which they controlled and managed with the idea that the Three Pines Timber Company should hold the title to the various timber lands which they had acquired, or expected to acquire, and that Three Pines Lumber Company should carry on milling operations thereon. To some greater or less extent these corporations carried on their corporate business, and in the course thereof became indebted to the First National Bank of Southern Oregon, and the Jackson County Bank in various sums of money, for which these banks held conveyances of tracts of timber land. The Three Pines Lumber Company carried on milling operations and paid to trustee Yawter, for the Three Pines Timber Company, stumpage as the timber was cut. From the proceeds of stumpage, trustee Yawter paid Mrs. Smith various sums on account of interest.</p> <p>In the early part of 1907, or prior thereto, Messrs. Cook and Howland apparently conceived the idea of relieving the financial pressure upon their corporations by putting out a bond issue of $100,000, and negotiations were carried on with the three principal creditors, who were the two banks mentioned and Elizabeth A. Smith, with the end in view of transferring the timber lands held by the various creditors to the Three Pines Timber Company, and making the same a basis of security for the proposed bond issue. The banks agreed to surrender their security, and to retransfer the same to the Three Pines Timber Company, and receive bonds at par in full of their respective claims and demands. Elizabeth A. Smith agreed and did, pursuant to the -written agreement of June 10, 1907, transfer all the timber lands received by her as security to the Three Pines Timber Company, and take as a substituted security therefor $12,500 par value of bonds of the Three Pines Timber Company; but she insisted on retaining as additional security the title to the Hydraulic Mining Company property, which had been deeded to her at the inception of the transaction. She did not surrender up the original notes, but continued to hold the same, holding the bonds mentioned as collateral security in addition to the mining property of the Hydraulic Mining Company. About June 10, 1907, the deal as above outlined was practically closed and the bonds delivered.</p> <p>At the time of the inception of the above transactions, and until the time of his death in February, 1916, W. I. Yawter, residing at Medford, Oregon, then the president of the Jackson County Bank, and also engaged in the practice of law, tended to the details. of the transactions, acting with the advice and on the instructions of Elizabeth A. Smith. In arranging the details of the bond issue of the Three Pines Timber Company, Mr. Vawter was made trustee, and the. timber holdings of the company were transferred to him by trust deed, for the purpose of securing the bond issue. In arranging the details of the bond issue, and the delivery of the bonds to the various creditors, it is provided in the trust instrument, inter alia, that bonds to the amount of $100,000 be issued and the proceeds from the sale thereof be expended by the trustee in payment of outstanding indebtedness against the property conveyed to the trustee in the sum of $35,000, due approximately in the following sums: To Jackson County Bank, Medford, Oregon, $7,500; First National Bank of Southern Oregon, Grants Pass, Oregon, $12,500; Elizabeth A. Smith, $15,000. On June 10, 1907, there was delivered to Mr. Vawter for Mrs. Smith, by the Hydraulic Mining Company, a deed of conveyance of the Hydraulic Mining Company property, excepting therefrom the merchantable timber on the patented mining claims. The deed was duly recorded. There was also delivered to Mr. Vawter on Mrs. Smith’s behalf an agreement in writing, dated June 10, 1907, executed by the Hydraulic Mining Company, by G. E. Howland, its president, and by Jefferson D. Cook, its secretary, which after reciting the fact of the indebtedness to Mrs. Smith in the sum of $12,500, the fact that the bonds of the Three Pines Timber Company had been delivered to Mrs. Smith, and that the Hydraulic Mining Company had conveyed the mining property described therein to Mrs. Smith, stated that she should reconvey to the Hydraulic Mining Company the mining property when she should have been paid the full sum of $12,500 with interest at 8 per cent per annum from July 1, 1907; and recited further that there should be paid to Elizabeth A. Smith the sum of $12,500, either by the retirement and liquidation of the bonds or from the sale of the mining premises, and in the event that the indebtedness should be paid from the mining property, that thereupon the bonds should be delivered to the Hydraulic Mining Company or its assigns.</p> <p>It appears at that time that the interest was not paid to July 1, 1907, but was in arrears $2,039.75, for which the mining company and Messrs. Howland and Cook executed to Mrs. 'Smith their promissory note and delivered to her as collateral security bonds of the Three Pines Timber Company of the par value of $3,000. Afterwards Cook and Howland sold these bonds and from the proceeds paid the interest note as follows: July 18, 1907, $100; August 8, 1907, $528; and on August 14, 1907, $528.07. The note was surrendered and canceled, and the amounts credited by Mrs. Smith on account of the interest due her on the Hydraulic Mining Company notes. Afterwards the Three Pines Lumber Company paid stumpage to Trustee Yawter from time to time, and distribution was made to the various bondholders, and Mrs. Smith was paid various sums of money up to September 21, 1911, when Trustee Yawter commenced a suit to foreclose the security of the trust deed securing the bonds. Thereafter various sums were paid to the bondholders on account of a certain lease made under receivership. These sums were applied first to liquidate the interest on the bonds, and any surplus was applied to the retirement of bonds one and two. The amounts received by Mrs. Smith were applied upon, but did not fully pay, the interest due upon the notes of the Hydraulic Mining Company, Cook and Howland. During the pendency of the suit brought by Trustee Vawter, further sums were paid to Mrs. Smith from the collection of stumpage. In that suit the First National Bank of Southern Oregon, Jackson County Bank, and Elizabeth A. Smith, as the holders of the majority of the bonds, were joined as parties plaintiff. The proceedings did not pass to a decree until October 6, 1914. M. Purdin and H. D. Norton appeared in the original complaint as the plaintiff’s attorneys. W. I. Vawter appeared in proper person, the only case in which he appeared as attorney for plaintiffs being that in the second amended complaint filed February 11, 1913, where his name was joined with that of H. D. Norton, as defendant asserts, with the intention of appearing in his own proper person as in the preceding action. No order of the court was made adding his name as an attorney of record for the plaintiffs, and he did not assume to appear as an attorney of record thereafter. The suit was finally disposed of by stipulation filed May 3, 1913, by which various things were provided. Among others, the suit was dismissed as to the Hydraulic Mining Company and numerous other defendants that had been added by the second amended complaint; and a decree was provided to be entered for the foreclosure of the bond issue.</p> <p>In paragraph 5 of the stipulation are listed the items of property, the title to which came to the Three Pines Timber-Company, and against which the trust deed was a first lien. This description contains within its purview the Hydraulic Mining Company property by reference to Volume 25 of Deeds, at pages 171, 173. Paragraph 6 enumerates certain property subject to foreclosure, but subject to prior mortgage liens. Certain controversies between Cook and How-land, on one hand, and one Steel, on the other, were partially adjusted and provisions made for complete adjustment by arbitration. By paragraph 7 it was provided that any lien, claim, or right created in or upon any of the other property, other than the property described in paragraphs 5 and 6, “are released and discharged from the lien of said trust deed or mortgage for the foreclosure of which this suit was brought, and are further released and discharged from this suit, and from the claims of all and singular the parties to this suit.” The Hydraulic Mining Company was not a party to this stipulation. Elizabeth A. Smith’s name was not signed to the stipulation by her regular attorney of record. The stipulation was signed by “W. I. Yawter, Trustee,” and “Elizabeth A. Smith by W. I. Yawter, Her Attorney,” by the two banks mentioned, Francis R. Steel, The Three Pines Timber Company, G. E. Howland, and Jefferson D. Cook.</p> <p>After W. I. Yawter died, H. L. Gilkey, by order of the court was appointed trustee, April 7, 1916. After he resigned George Lundburg was, by order made March 3, 1917, appointed to complete the trust. Execution was issued on the decree of foreclosure April 28, 1916, and the property was bid in by H. L. Gilkey, as trustee, for the aggregate sum of $83,000. A sheriff’s certificate of sale was issued, but no sheriff’s deed was ever issued. Delinquent taxes accumulated against the property.</p>

<p>Appeal and Error — Contracts—Complaint must Allege Plaintiff's Performance, and Failure to so Allege may be First Urged on Appeal.</p> <p>1. A complaint on a contract, which sets out the contract in full but fails to allege plaintiff’s performance of its conditions, does not state a cause of suit or action; an objection which may be raised for the first time in the appellate court, but allegation that the work was done by plaintiff in accordance with the terms of the contract, is sufficient.</p> <p>Partnership — Partners Who Contracted in True Names net Required to File Statutory Certificate.</p> <p>2. Plaintiff partners who contracted with defendant city in their own true names were not required by Section 7777, Or. L., to file certificate in the office of the county clerk setting forth the designation, name or style under whieh their business was to be conducted, etc.</p> <p>Contracts — Award, of Engineer may be Set Aside Where Classification Grossly Erroneous.</p> <p>3. In equity the award of an engineer-arbitrator, made by the contract final and conclusive as to amount or quantities to be paid for, may be set aside where his classification is so grossly erroneous as to amount to fraud on the contractor.</p> <p>Arbitration and Award — Agreement Between Mayor and Contractors With City Insufiicient to Amount to Submission.</p> <p>4. Agreement between the mayor and contractors with the city that the council was to decide what amount, if any, was still due the contractors, was not sufficient to amount to any submission to arbitration, particularly in the absence of showing the mayor had authority to execute any binding agreement on the subject.</p> <p>Appeal and Error — Belief cannot be Given Plaintiffs on Defendant’s Appeal.</p> <p>5. Not having appealed from the decree, plaintiffs must be deemed satisfied with it, and the court cannot give them further relief on appeal taken by defendant; under Section 557, Or. L., there must be a notice by the party aggrieved as a basis for any modification of the decree in his favor.</p> <p>3. As to w'hat names or designations are within statutes requiring the filing of a certificate giving certain information regarding a business conducted under an assumed or fictitious name or a designation not showing the name of the person interested, see note in L. R. A. 1916D, 355.</p> <p>4. Eight of municipality to arbitrate disputed claim, see note in 18 Ann. Cas. 1030.</p>

<p>Action — Single Cause of Action Arises from Breach of Entire Contract.</p> <p>1. Normally, only a single cause of action arises out of breach of an entire contract, the principle applying that no one can be twice vexed for the same cause of suit or action, a rule which is, however, subject to exceptions.</p> <p>Action — Rule Against Splitting Cause of Action may be Waived by Defendant.</p> <p>2. The rule against splitting a cause of suit or action is for the benefit of defendant, and he may waive the same expressly or by conduct amounting to a waiver.</p> <p>Action — By Consenting to Part Substitution of Arbitrator, City Agreed to Splitting of Cause of Suit to Set Aside Award.</p> <p>3. Where a city which had contracted for construction of a railroad grade consented to substitution of another’s judgment as arbitrator for that of its own engineer in respect of a percentage classification as to part of the work, the city agreed substantially to splitting of the contractor’s cause of suit against it to set aside the final estimate and award of the engineer; so far as the rights of the parties are affected by the arbitrator’s award, plaintiff contractors have a separate cause of suit against defendant city.</p> <p>Contracts — Action at Law Would not Lie to Enforce Award Where Only Part of Controversy Submitted.</p> <p>4. Action at law would not lie to enforce the award of an arbitrator where only part of one element of the contention between the parties to the contract involved was submitted to the arbitration.</p> <p>Municipal Corporations — Equity will Relieve Contractors from Situation Caused by City’s Engineer in Departing from Award of Arbitrator by Reforming and Enforcing Award.</p> <p>5. Where contractors to construct a railroad grade for a city and the city submitted to arbitration the matter of a percentage classification as to part of the work, but the city’s engineer in making up his final estimate departed from the award of the arbitrator, equity will relieve the contractors from such situation by setting aside the award which otherwise would be binding at law, reforming it, and enforcing it as thus reformed by a deeree in equity.</p> <p>4. On application of doctrine of res judicata to item of single cause of action omitted from issue through ignorance, mistake or fraud, see note in 2 A. L. R. 534.</p> <p>5. Specific performance of agreement to arbitrate, see note in 1 Ann. Cas. 31.</p>

<p>Corporation — Can Act Only Through Its Officers and. Agents.</p> <p>1. A corporation can act only through its officers and agents.</p> <p>Corporations — One Relying on Contract With Corporate Agent has Burden of Proving Authority.</p> <p>2. Plaintiff who relied on a contract entered into with an agent of the defendant corporation has the burden of showing such agent’s authority, or of facts which would estop the corporation from denying it.</p> <p>Principal and Agent — Existence of Authority Question of Fact, Extent One of Law.</p> <p>3. The existence of'an agent’s authority is a question of fact, but what he may do by virtue of it is a question of law.</p> <p>Frauds, Statute of — Contract for Sale of Flour in Excess of $50 Void in Absence of Part Payment, Written Evidence, or Partial Performance.</p> <p>4. Under Section 808, subdivision 5, Or. L., a contract for the sale of several carloads of flour, being in excess of $50, is void, in the absence of part payment, written evidence, or partial performance.</p> <p>Principal and Agent — Traveling Salesman has no Ostensible Implied Authority to Make Binding Contract.</p> <p>5. A traveling salesman or drummer ordinarily has no ostensible or implied authority to make a binding contract without the approval of his principal; the extent of his authority being merely to solicit orders and transmit the same to his principal for acceptance.</p> <p>Sales — Order Given Traveling Salesman Revocable Until Accepted.</p> <p>6. As a traveling salesman has no ostensible authority to bind his principal, an order given such traveling salesman or drummer is revocable until acceptance, and until acceptance or eonfirmance, the prospective buyer cannot enforce the same.</p> <p>Principal and Agent — Evidence Insufficient to Show Any Binding Contract of Sale, it Merely Appearing That an Order was Given a Traveling Salesman.</p> <p>7. Where defendant had already quoted a price to plaintiff in excess of the price specified in its flour order given a traveling salesman, who, defendant had advised plaintiff, would shortly call on him, and defendant repudiated the order when it was called to its attention, evidence held insufficient to show binding contract; there being nothing to show that the agent was either held out directly or by past dealings as having authority to bind defendant by accepting orders.</p> <p>5. Power of traveling salesman to make binding contract of sale, see note in Ann. Cas. 1912B, 356.</p> <p>6. On right to withdraw order given to agent before acceptance by principal, see note in 10 L. R. A. (N. S.) 1138.</p> <p>On acknowledgment by seller of receipt of order for goods as an acceptance, see note in 38 L. R. A. (N. S.) 903.</p>

<p>Wills — Letter cannot he Considered as Part of a Will.</p> <p>1. Under Section 803, Or. L., declaring that a written will cannot he revoked or altered otherwise than hy another written will, or another writing declaring such revocation and executed with the formalities required of a will, and Section 10095, declaring that every will shall be in writing and attested by two or more competent witnesses, etc., a letter written by testator after the execution of his will cannot be considered as part of the will, though it showed the testator’s true intent and supplied omissions in the original will.</p> <p>Wills — Will Executed hy Testator in Contemplation of Suicide Held not to Show His Desires.</p> <p>2. In view of letters and the surrounding circumstances, a will executed by a testator in contemplation of suicide held not to show his desires.</p> <p>Trusts — Property and Disposition must he Specified in Order for Valid Trust to he Created.</p> <p>3. In order for a trust to be created, there must be an estate to vest in the trustee, and the property must be definitely described and the disposition definitely stated.</p> <p>Trusts — In Case of Uncertainty Trust must Fail.</p> <p>4. Where uncertainty as to the property or disposition exists, a testamentary trust must fail, for the court cannot create a trust.</p> <p>Trusts — There must he Beneficiaries or the Trust will Fail.</p> <p>5. Unless there are competent and certain beneficiaries named or described, a trust must fail.</p> <p>Trusts — Beneficiary Need not he Named if Identified.</p> <p>6. A testamentary trust will not fail where the beneficiary is described with sueh accuracy that he may be identified.</p> <p>Wills — Intention of Testator may he Ascertained from the Whole Will and Extrinsic Circumstances.</p> <p>7. The designation of a beneficiary of a trust, when ambiguity exists, may be ascertained by inference from the whole will and extrinsic circumstances.</p> <p>1. For authorities discussing the question of sufficiency of letter as will, see notes in 89 Am. St. Rep. 491; 15 L. R. A. 635; 17 L. R. A. (N. S.) 1126.</p> <p>Wills — Will cannot be Construed by Mere Conjecture.</p> <p>8. A will cannot be construed by mere conjecture as to tbe intention of the testator, but the intention which the testator expresses controls.</p> <p>Charities — Purely Charitable Trust will be Sustained Though Beneficiaries are not Named.</p> <p>9. A purely charitable trust will be sustained though no beneficiaries are named, because it derives its strength from the fact that its benefits are to be distributed among unknown persons.</p> <p>Charities — Trust not Sustainable as Charity ‘‘Benevolency.”</p> <p>10. Where a will gave all of the testator’s property to a Swedish society, and the instrument did not use the word “charity” or “benevolent,” the trust sought to be created cannot be upheld as a charitable trust, even though a letter showed that the testator intended his estate to be used for benevolent purposes, for “benevolency” is a much broader term than “charity,” and includes objects and purposes not charitable.</p> <p>Wills — Proponent has the Burden of Proving Testamentary Capacity.</p> <p>11. Where, after a will is probated in common form, its validity is attacked by direct proceedings, it is incumbent upon the person propounding the will to re-probate the same by original proof, as if no probate had been made, and hence the proponent has the burden of showing the testator’s mental capacity.</p> <p>Trusts — Ordinarily Courts will not Allow Trusts to Fail for Want of Trustee.</p> <p>12. Ordinarily the courts will not allow a trust to fail for want of a trustee.</p> <p>Wills — Where Trust Fails the Trustee cannot Take on Theory of Absolute Gift.</p> <p>13. If a trust fails by lapse, or is condemned as illegal, a devise or bequest to a person merely by way of trust cannot be construed as an absolute gift.</p> <p>Wills — Petition of Contest may Waive Necessary Formalities Attending Probate.</p> <p>14. A petition by way of direct contest after probate in common form may waive necessary facts and formalities attending probate.</p> <p>Wills — Petition of Contest Held to Raise the Question as to Beneficiary.</p> <p>15. In view of the answer to the contest petition, held that the petition which denied that the instrument was the will of deceased, and that it was ambiguous, was sufficient to raise the contention that a trust sought to bo created out of the decedent’s property was invalid for want of a beneficiary.</p> <p>9. Certainty and unity required in charitable trusts, see note in 64 Am. St. Rep. 756.</p> <p>11. On burden of proof of testamentary capacity, see notes in 17 L. E. A. 494; 36 L. E. A. 733.</p> <p>Wills — Evidence Held to Show Decedent’s Incapacity.</p> <p>16. In a will contest case evidence held to show the mental incapacity of decedent, who executed the will in contemplation of suicide.</p> <p>ON PETITION TO TAX COSTS TO RESPONDENT.</p> <p>Wills — Ordinarily Cost of Will Cbntest Bom© by Estate.</p> <p>17. It is the common practice in proceedings for the contest of a will, especially where doubtful questions are settled, to provide that costs shall be paid from the proceeds of the estate.</p> <p>Wills — Cost of Contest Properly Ordered to be Paid Out of Estate.</p> <p>18. Where the executor, to whom letters testamentary were regularly issued, proceeding in good faith under what was presumed to be the will, husbanded the estate, and the heir at law, a resident of a foreign country, paid no attention to the property, costs of a contest wherein it was determined the will was invalid were properly ordered paid out of the estate.</p> <p>18. On right of executor to allowance for attorneys’ fees for services rendered in attempt to establish or resist attack upon will, see notes in 26 L. R. A. (N. S.) 757; L. R. A. 193 7A, 450.</p> <p>On right of executor to an allowance for expenses incurred in unsuccessful attempt to uphold particular provisions of will, see note in 7 A. L. R. 1499.</p>

<p>Appeal and Error — Exception must he Taken to Instruction Directing Verdict.</p> <p>1. The provisions of Section 172, Or. L., that no exception need he taken or allowed to any decision on a matter of law when entered in the journal or made wholly upon matters in writing and on file in the court are without application to peremptory instruction of _ a trial judge directing the jury to return a particular verdict in a given case; it having been the practice to review such rulings when the validity of the order has been challenged by exceptions duly saved and preserved of record.</p> <p>Appeal and Error — Exception to Directed Verdict Necessary.</p> <p>2. To review the giving of a peremptory instruction to find for plaintiff, an exception must have been taken in lower court.</p> <p>Appeal and Error — Error Legally Objected and Excepted to Alone Constitutes Ground for Reversal.</p> <p>3. It is not simply error, but error legally excepted to, that constitutes ground for reversal, and, except as provided by Section 172, Or. L., tbe errors relied on to reverso the rulings of the lower court must be raised by appropriate objections and exceptions interposed on trial.</p> <p>2. Necessity of taking exception to directed verdict, see note in An». Cas. 1917A, 849.</p>

<p>From Benton: George F. Skipworth, Judge.</p> <p>Department 2.</p> <p>The plaintiff prays for a divorce upon the grounds of cruel and inhuman treatment. The defendant denies the material facts stated in the complaint and for a further and separate answer alleges the same course of conduct on the part of the plaintiff towards him and prays that her complaint be dismissed. The trial court rendered a decree of divorce for the plaintiff and for an undivided ou «-third interest in the real property of the defendant and an alimony judgment of $500, from which the defendant appeals, contending that the evidence does not support the decree and that the plaintiff is equally in fault with the defendant and that the suit should be dismissed.</p>

<p>Appeal and Error — Record Held not Properly Authenticated.</p> <p>1. Where the certificate of the trial judge attached to the bill of exceptions refers to exhibits said to bo attached thereto and made part thereof, and declares that the bill of exceptions contains a full and correct account of all proceedings on trial and all testimony necessary to illustrate the exceptions, but there are no exhibits attached to the bill, and there is no report of testimony authenticated by the trial judge or any official reporter, which is true of certain checks alluded to in defendant appellant’s brief, the Supreme Court cannot examine the case for want of a sufficient and properly authenticated record.</p>

<p>From Deschutes: T. E. J. Duffy, Judge.</p> <p>Department 1.</p> <p>The first three allegations of the complaint are as follows:</p> <p>“1. That plaintiff is now and at all of the times hereinafter mentioned has been an unmarried woman.</p> <p>“2. That on January 6, 1920, in Bend, Deschutes County, Oregon, the defendant, in the presence of divers persons, maliciously spoke to and of the plaintiff the following false and slanderous words:</p> <p>“ ‘You are nothing hut a dirty, low-down prostitute,’ and ‘You are not fit to speak to or associate with anyone; I got a lot of stuff on you and can name dates. ’</p> <p>“3. That hy the statement, ‘I got a lot of stuff on you and can name dates,’ defendant meant that he, defendant, could name dates on which this plaintiff had been guilty of lewd, lascivious, and immoral associations and relations with men.”</p> <p>The pleading concludes with an averment of general damages and demand for judgment.</p> <p>The Circuit Court sustained a general demurrer to the complaint. The plaintiff refused to plead further and a judgment was entered against her, from which she appeals.</p>

<p>Damages — Permanency of Injury may be Shown Under General Allegation of Damages.</p> <p>1. The permanency of an injury may be shown under a general allegation of dámages, without more explicit pleading.</p> <p>Damages — Complaint Held not to Exclude .Evidence as to Permanency of Injuries — “May.”</p> <p>2. In an action against a telegraph company for injuries to plaintiff when run into by defendant’s messenger boy on a bicycle, complaint, generally describing plaintiff’s injuries, and stating her knee would be weak for a long time, and the patella more liable to dislocation, also averring, “These conditions may be of a permanent character,” held sufficient to admit evidence of the permanency of the’ injury; “may” sometimes importing ability, competency, possibility, or probability, and not limiting the legal effect of the allegation of general damages.</p> <p>Appeal and Error — New Trial — Refusal of New Trial Discretionary.</p> <p>3. Refusal to grant new trial is a matter in the sound discretion of the court, and will not be reviewed on appeal except for abuse.</p> <p>New Trial — Disregard of Statement Made in Effort to Compromise was not Ground.</p> <p>4. Statement of counsel for plaintiff, suing for injuries made in course of negotiations for settlement of the claim that plaintiff was not making a claim for serious permanent injury, though she Was not yet free from pain or inconvenience, was not binding when no settlement was reached, so that disregard' thereof by plaintiff at trial did not entitle defendant to new trial for surprise.</p> <p>T. Right to recover damages for future disability in absence of special allegation, see note in 20 Ann. Cas. 116.</p>

<p>Mortgages — Deed to Creditor With His Contract Back Constituted Mortgage.</p> <p>1. A deed to defendant executed hy plaintiff’s mother, accompanied hy contract hy defendant to sell the land to plaintiff’s mother on her paying him the precise amount of her indebtedness to him and half of the taxes, constituted a mortgage.</p> <p>Limitation of Actions — Cause of Action for Redemption Arose in Favor of Mortgagor Against Mortgagee When He Took Possession.</p> <p>2. Where the mortgagee of land went into possession without foreclosure with the consent of the mortgagor, who desired to avoid suit, immediately on his taking possession a cause of ,suit for redemption of the land arose in favor of the mortgagor, and the statute of limitations against such cause of suit in her favor began to run at once.</p> <p>Mortgages — Running of Redemption of Limitation Statute will not be Interrupted by Subsequent Occurrences.</p> <p>3. The statute of limitations against mortgagor’s Tight to redeem the mortgaged land in the mortgagee’s possession, having once begun to run, will not be interrupted by subsequent occurrences.</p> <p>Mortgages — Mortgagor had Notice Mortgagee was Holding Otherwise Than as Mortgagee in Possession.</p> <p>4. Where, under the oral agreement between mortgagor and mortgagee, grantee under a deed absolute in form, the mortgagee was to enter into possession as absolute owner of the property, the mortgagor had notice that he was holding in some other character than that of mortgagee in possession, sufficiently to initiate the adverse possession which, if persisted in for ten years continuously, ripened into title in fee simple in the mortgagee, under Section 5, Or. L.</p> <p>Mortgages — Mortgagor Could not have Brought Suit to Redeem, Unless Within Ten Years After Mortgagee Took Possession.</p> <p>5. The right to redeem from mortgage being correlative to the right to foreclose, a mortgagor could not have brought suit to redeem unless she commenced it within ten years after the mortgagee took possession of the premises by agreement.</p> <p>1. Deed absolute in form with agreement to reeonvey as mortgage, see notes in 17 Am. Dec. 300$ Ann. Cas. 1914C, 1079.</p>

<p>Goodwill — Evidence Held to Show Buyer of Business Defrauded by Misrepresentation as to Daily Sales.</p> <p>1. In an action by the buyer of a millinery business to rescind the sale on account of the seller’s fraud, evidence held to justify finding that plaintiff buyer was defrauded, in that defendant seller misrepresented that her sales amounted to some $50 a day.</p> <p>Trial — Case Should be Submitted to Jury on Evidence Competent to Sustain Verdict.</p> <p>2. It is not only the right, but it is the duty, of the court to sustain motion for directed verdict in a proper case; but, where there is competent evidence to sustain the verdict, the case should be submitted to the jury.</p> <p>Goodwill — Whether Buyer Seeking to Rescind Barred by Delay in Giving Notice After Discovery of Fraud Held Jury Question.</p> <p>3. In an action by the buyer of a millinery business to rescind on account of the seller’s misrepresentations that she did a business of $50 a day, whether plaintiff buyer’s delay of thirteen days after discovering the fraud before giving notice to rescind was unreasonable, so that he is barred by his laches, held for the jury under the evidence.</p>

<p>Taxation — Tax Lien Superior to Prior Mortgage Lien.</p> <p>1. Section 4328, Or. L., providing that tax liens shall have priority to and be fully paid and satisfied before any and every judgment, mortgage, or other lien, etc., makes a tax lien superior to a prior mortgage lien.</p> <p>Venue — Foreclosure Proceedings Properly Continued in County Where Instituted, Despite Change in Boundary.</p> <p>2. Foreclosure proceedings against a mining company on account of unpaid taxes, instituted under Section 4332 et seq., Or. L., were properly continued in Douglas County, where instituted, where the mining company’s property was situated, despite Laws of 1915, Chapter 65, amending Section 2557, L. O. L., to change the boundary line between Lane and Douglas Counties, so that the property was thereafter in Lane County.</p> <p>1. Validity and construction of statute giving tax lien priority over other liens, see notes in Ann. Cas. 1913B, 520; Ann. Cas. 1917A, 1079.</p> <p>Priority as between purchase-money mortgage and tax assessment, see note in Ann. Cas. 1916G, 955.</p>

<p>Attachment — Evidence Insufficient to Show Claimant Made Statement to Creditor Bank to Encourage Making of Loan.</p> <p>1. In suit to quiet title to relieve realty from the lien of an attachment issued in defendant bank’s suit on a note for money loaned to plaintiff’s son by defendant under belief that the son owned the land attached and then claimed by plaintiff, evidence held insufficient to show that plaintiff made any statement to the bank to encourage the making of the loan from which the note resulted, or was responsible in any way therefor to make good the charge of fraud against plaintiff or of collusion between him and the borrower from the bank.</p>

<p>Marriage — In a Suit to Annul, Evidence Held to Show Plaintiff Knew of Defendant’s Pregnancy at Time of Marriage.</p> <p>1. In a husband’s suit to annul a marriage for wife’s fraud in concealing the fact that at time of marriage she was pregnant by another, evidence held to show that plaintiff knew of such faet at time of marriage, having previously sought to have an abortion performed.</p> <p>1. Concealment of unchastity as ground for annulment of marriage, see note in Ann. Cas. 1911C, 1291.</p> <p>Marriage — Sexual Commerce Between Husband and Wife Prior to Marriage Held Bar to Suit for Annulment for Fraud.</p> <p>2. In a husband’s suit under Sections 503, 9722, Or. L., to annul a marriage for wife’s fraud in concealing her pregnancy by another, where the evidence showed sexual intercourse between parties prior to the marriage, the husband was precluded from relief by general rule of law that sexual commerce between man and woman before marriage bars suit for relief for such fraud regardless of the paternity of offspring.</p> <p>Marriage — Equity will not Annul a Marriage for Wife’s Concealment of Pregnancy Where the Parties have Intercourse Before Marriage.</p> <p>3. Where plaintiff, twenty-six years old, has sexual intercourse with delinquent girl of seventeen, and later weds her, and four weeks after marriage a child is born, he cannot come into a court of conscience and obtain annulment by alleging fraud by reason of concealment of her pregnancy from him.</p> <p>Divorce — Will be Decreed Only by Proper Authority Because Divorce is to the Public Detriment.</p> <p>4. Divorce, being prima facie to the public detriment, it is suffered only in those special cases where it is decreed by proper authority.</p> <p>Bastards — Testimony of Either Husband or Wife will not be Received to Overcome Presumption of Legitimacy of Offspring.</p> <p>5. The presumption of law that a “child born in lawful wedlock, there being no divorce from bed or board, is legitimate” (Section 799, paragraph 32, Or. L.), is not overcome by wife’s admission of sexual intercourse with another, and “that the issue of a wife cohabiting with husband who is not impotent is legitimate” is made a conclusive presumption by Section 798, paragraph 6, and testimony of neither wife nor husband is competent to overcome presumption of legitimacy.</p> <p>Marriage — Evidence Held Insufficient for Annulment.</p> <p>6. In a suit to annul a marriage for wife’s concealment of pregnancy, evidence independent of the presumption of legitimacy of .child born in lawful wedlock, and other presumptions in favor of defendant, held not to make out a case for annulment.</p> <p>5. Admissibility of evidence of illicit intercourse by mother of child born in lawful wedlock on issue of its legitimacy, see note in Ann. Cas. 1916A, 1187.</p>

<p>Appeal and Error — Associate Attorney Holding Himself Out as Attori ney After Trial may Accept Service of Notice of Appeal.</p> <p>1. A notice of appeal served on and accepted by an associate attorney hired for trial of cause, holding himself out as attorney after the trial, is sufficient notiee, under Section 550, L. O. L., as amended by Chapter 319, Laws of 1913, though no substitution of attorneys was had, under Sections 1086 and 1087, since Sections 1074 and 1075, limiting authority of associate attorney for trial of cause to the trial, was enacted in 1862, at a time when complete record of the trial was not had.</p> <p>Attorney and Client — Relationship is That of Principal and Agent.</p> <p>2. The relationship of attorney and client is that of principal and agent.</p>

<p>Wills — Executors cannot he Compelled to Redeem Devised Land.</p> <p>1. Where purchaser assumed mortgage, but defaulted in payment, devisees to whom he had devised the land eould not, upon his death subsequent to foreclosure during period of redemption, compel executors to redeem out of funds belonging to the estate, though will directed that his just debts be first paid, since the property itself is as between decedent and legatees the primary fund out of which a lien must be satisfied.</p> <p>Mortgages — Foreclosure Suit Held to Preclude Action on Notes Secured.</p> <p>2. The bringing of a suit by the mortgagees, against mortgagors and their grantee who had assumed mortgage, to foreclose the mortgage, constituted an election of remedies on the part of the mortgagees, and thereafter precluded them from bringing an action upon the promissory notes given in connection with the mortgage.</p> <p>ON REHEARING.</p> <p>Mortgages — Purchaser Assuming Debt has Same Liability as Original Mortgagor.</p> <p>3. A purchaser of land who covenants to pay a mortgage then existing thereon becomes, as between himself, the mortgagors, and the mortgagees, the person liable to pay the mortgage; his liability being as great as, but no greater than, that of the original mortgagor.</p> <p>Mortgages — Mortgagee must Elect to Foreclose or Recover on Personal Liability.</p> <p>4. A mortgagee has the right to elect whether to foreclose the mortgage and secure payment of the debt by a sale of land, or to bring an action against the parties personally liable for the debt, but he cannot do both, and his election to foreclose releases the personal liability for the debt of one who had covenanted to pay it.</p> <p>Wills — Devisees Take Subject to Mortgage Which Mortgagee had Elected to Foreclose Before Testator’s Death.</p> <p>5. Where, before testator’s death, the mortgagees had instituted foreclosure proceedings, and thereby released the testator’s personal liability on his covenant assuming the mortgage, the devisees of the mortgaged property take it subject to the mortgage debt and cannot compel the executors to pay the debt, though the will directed the payment of testator’s just debts.</p>

From Multnomah: Robert Tucker, Judge. Department 1. This is an action brought by the First National Bank of Portland against the United States National Bank of Portland for the recovery of $532.80 paid on 18 forged checks drawn upon the First National Bank of Portland. The cause was tried, with the consent of the parties, by the court without the intervention of a jury. There was a judgment for the defendant and the plaintiff appealed.

From Clatsop: James A. Eakin, Judge. Department 1. This is an appeal by Rowena Sprague, Plaintiff, v. City of Astoria, a Municipal Corporation, Defendant and Respondent, from a judgment in favor of the defendant city. The plaintiff instituted an action for damages in the Circuit Court of the State of Oregon in and for Clatsop County against the defendant, in which she undertook the recovery of $5,000 by reason of alleged injuries sustained by her.

From Multnomah: William N. Gatens, Judge. In Banc. William Reid, plaintiff and respondent, instituted in the Circuit Court of the State of Oregon in and for Multnomah County a suit to enjoin T. M. Hurlburt, Sheriff of Multnomah County, from collecting the sum of $2,197.53, or any sum over and above $781.65, as taxes due Multnomah County from him, as administrator of the estate of David C. Pelton, deceased.

<p>Contracts — Courts Only Construe Contracts.</p> <p>1. Courts are empowered to construe contracts, but they cannot make contracts for parties.</p> <p>Contracts — Definite and Unambiguous Written Words Final Evidence of Intention of Parties.</p> <p>2. In construing contracts the primary object is to ascertain the intention of the contracting parties, and, if the words used by them are plain, clear, definite and unambiguous, they will be taken as the final evidence of the intention of the parties.</p> <p>Contracts — Rules of Construction not Applied Where Language is Unambiguous.</p> <p>3. Where the intent of the parties to a contract is expressed in clear and unambiguous language, there is no need for the application of any of the rules of construction.</p> <p>2. Rule of construction that language used by promisor is to be construed as promisor thought it to be understood by promisee, see note in 12 Ann. Cas. 392.</p> <p>Evidence — Contract Held Ambiguous and Hence to Warrant Parol Evidence.</p> <p>4. A rider to a contract to pay a minimum of four cents per pound for ten years for loganberries, declaring “if S. raises their buying price to other growers in 1918, or thereafter, this contract will automatically conform with that price,” held open to other meanings than that the obligation to pay more than four cents is dependent upon two conditions, (1) that if S. has a buying price and (2) that if</p> <p>S. raise that buying price, and parol evidence was admissible to show that it was intended that S. pay the market price if it exceeded four cents, in view of Section 721, Or. L.</p> <p>Contracts — Construed Most Strongly Against Party Preparing It.</p> <p>5. A written contract will be construed most strongly against the party preparing it.</p> <p>Contracts — Construction Implying Good Faith Adopted.</p> <p>6. If a contract is susceptible of two constructions, one of which imputes bad faith and the other implies good faith, the latter will be adopted for the reason that every contract implies good faith and fair dealing between the parties.</p> <p>Evidence — Parol Evidence Admissible to Explain Ambiguous Contract.</p> <p>7. Where the language of a contract is ambiguous, equivocal, or reasonably susceptible of two or more conflicting constructions, it is competent to resort to parol testimony concerning the circumstances under whieh the agreement was made or to which it relates, including the situation of the subject of the instrument and of the parties to it, in order, not to add to or detract from or otherwise vary the terms of the instrument, but to enable the court to ascertain what the meaning of the parties really is, under Sections 713, 717, Or. L.</p> <p>Sales — Facts Held to Show Agreement to Pay Minimum of Four Cents Per Pound for Loganberries Intended Payment of Market Price.</p> <p>8. Under a contract to sell loganberries for ten years at a minimum price of four cents per pound, held, that it was the intention of the parties that plaintiff should pay the market price when it was in excess of four cents per pound.</p> <p>Evidence — Construction of Contract by Agents of One Party Held Admissible.</p> <p>9. Where agents had authority to solicit berry-growers to sign contracts and to explain the meaning of the contracts, representations by such agents as to the meaning of the contracts were admissible in evidence where the contracts were reasonably susceptible of the construction given.</p> <p>Pleading — Defense Held not to Amount to Admission That Contract was Given Same Meaning as Given to It by Plaintiff.</p> <p>10. In an action for specific performance of a contract to sell loganberries for ten years, defendant’s first separate defense declaring that plaintiff represented to the defendants that the plaintiff would attach a rideT with certain words, but instead a rider differently worded was attached, did not amount to an admission that defendants gave to the rider the same meaning as is given to it by the plaintiff.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Department 1. This is au action for deceit in fraudulently inducing plaintiff to pay for a relinquishment of a timber and stone entry upon the northeast quarter of section 26, township 21 south, range 3 west of the Willamette Meridian in Lane County.

From Multnomah.: Robert Gr. Morrow, Judge. Department 2. This is a suit to enjoin the defendants from acting as directors and officers of a corporation, and from interfering with the assets of the corporation. The assets of the partnership of John F. Kaufman & Company, which amount to some $60,000, are held in the name of the Agricultural Credit Corporation of Oregon. The Circuit Court rendered a decree dismissing the suit and requiring each party to pay their own costs.

<p>Divorce — Appeal and Error — Suit or Maintenance Money — Jurisdiction.</p> <p>1. The Supreme Court has no jurisdiction to grant suit or maintenance money pending appeal from a decree of divorce.</p> <p>Divorce — Rule 8 of Supreme Court Relaxed — Respondent’s Case Heard on Typewritten Briefs.</p> <p>2. In view of extreme poverty of wife, granted decree of divorce, from which husband has appealed, the rule requiring her to furnish printed briefs will be relaxed, and she will be permitted to have her case heard on typewritten briefs.</p> <p>ON THE MERITS.</p> <p>Divorce — Evidence Sufficient to Establish Defendant’s Cruelty.</p> <p>3. In an action for divorce on the ground of the husband’s cruelty, evidence held sufficient to establish his cruelty.</p> <p>Divorce — Compelling Wife to Submit to Abortion Entitles Her to Divorce.</p> <p>4. That a husband compels his wife to submit to an abortion entitles her to a divorce on the ground of cruelty and inhuman treatment.</p> <p>1. Allowance of counsel fees and suit money by appellate court, see notes in 3 Ann. Cas. 51; 6 Ann. Cas. 683; 15 Ann. Cas. 229; Ami. Cas. 1915B, 1249.</p> <p>4. Necessity of personal violence to constitute cruelty warranting divorce, see note in 9 Ann. Cas. 1090.</p> <p>Divorce — Where Cruelty is Alleged, the Particular Acts Relied on must be Substantially Proved.</p> <p>5. Where cruelty is alleged as a ground of divorce, the particular acts relied on in the complaint to establish it must be substantially proved as alleged.</p> <p>Divorce — Evidence of Acts of Cruelty not Pleaded may be Shown in Corroboration.</p> <p>6. While a divorce cannot be granted for particular acts of cruelty not pleaded, yet evidence of acts not alleged may be admitted in explanation, corroboration, or aggravation of those specially charged,so, where the act of the husband in tying his wife down while she was pregnant was not alleged, it might be proved in corroboration, etc.</p> <p>Divorce — Decree Should not be Granted Where Parties are Mutually Responsible.</p> <p>7. A decree of divorce should not be granted where the parties have mutually contributed to the condition complained of.</p> <p>Divorce — Divorce cannot be Granted Unless Cruelty Complained of is Unprovoked.</p> <p>8. To warrant a divorce on the ground of cruel and inhuman treatment by one spouse toward the other, it must appear that such treatment was unjustified by provocation and was out of pro-portion to any offense of the complaining spouse.</p> <p>Divorce — Allowance of Suit Money for Appeal Proper.</p> <p>9. Where the defendant husband appealed from a decree of divorce and the small allowance for suit money had been entirely exhausted in payment of witness fees in the trial court, the Supreme Court should grant an additional allowance sufficient to compensate the wife for her reasonable outlay and expense attendant upon the appeal.</p>

From Clatsop: James A. Eakin, Judge. Department 1. Plaintiff and defendant were married at Astoria, Oregon, on May 6, 1896, and are now husband and wife. As the issue of such marriage, a son was horn, named W. D. Hamilton, and who at the time the complaint was filed was fourteen years of age; also there was a daughter named lone, who was born December 5, 1899, and died February 2, 1903.

<p>Insurance — Insurance Contract must be in Writing Under Statute.</p> <p>1. Section 6457, Or. L., forbidding the issuance or renewal of insurance policies which do not contain the conditions therein prescribed to be stated on page 2 of the policy, in effect requires the policy to be in writing, and prohibits oral contracts of insurance.</p> <p>Insurance — Authority of Agent Who Executed Renewal must be in Writing.</p> <p>‘ 2. The requirement of Section 6457, Or. L., that an insurance policy shall specify that in any matter relating to the insurance no person, unless duly authorized in writing, shall be deemed the agent of the company, a renewal of a valid existing poliey made by an agent is not binding on the company, unless it is shown that the agent was authorized in writing to renew the insurance.</p> <p>Insurance — Answer Inadvertently Admitting Agency is not “Appointment in Writing.”</p> <p>3. An answer by an insurance company admitting that the agent whom plaintiff alleged renewed her policy was authorized to solicit insurance for the company, which was subsequently withdrawn as having been filed under a wrong conception of the facts, is not the written authority of the agent to bind the company required by the statute.</p> <p>Insurance — Agent to Solicit has no Authority to Bind Company.</p> <p>4. Authority of an agent to solicit insurance confers no power upon the agent to write insurance which shall bind the company, especially where the poliey which insured claimed the agent renewed stipulated that the liability of insurer should not commence until the application was approved by the home office.</p> <p>Insurance — Agency cannot be Proved by Holding Out.</p> <p>5. Under Section 6457, Or. L., requiring an agent to be authorized in writing to bind an insurance company, the authority of an agent cannot be proved by evidence that the company held him out as its agent.</p> <p>Insurance — Evidence of Renewal of Expired Policy Before Fire Occurred Held Insufficient to go to Jury.</p> <p>6. Where the written insurance poliey had expired before the fire occurred, evidence that one who had been previously authorized to solicit insurance for the company had agreed to renew the policy when it expired, but that his ageney had been terminated before the policy expired, and no new policy was ever issued, nor was the renewal premium paid, does not warrant the jury in finding that the company had renewed the policy, so that it was error to deny a motion for nonsuit.</p> <p>1. Construction of clause in standard poliey providing that insurance agent must have written authority, see note in Ann. Cas. 1912C, 367.</p>

.From Coos: George F. Skip worth, Judge. Department 1. At the time of the transactions from which this litigation resulted, the defendant Gage was sheriff of Coos County, Oregon. His successor was substituted as a defendant, but the case will be treated under the original name.

From Clatsop: James A. Earin', Judge. Department 1. This suit was brought by Mrs. Thomas J. Mansker against the City of Astoria and the members of the city’s Cemetery Commission. The plaintiff prayed for a decree invalidating a charge of $77.45 attempted to be made by the Cemetery Commission ag’ainst a lot in the cemetery, which the plaintiff had previously purchased from the city for burial purposes and for which she paid the full purchase price.

From Clatsop: James A. Eakin, Judge. Department 1. This is an action for damages on account of the death of plaintiff’s minor son, Alexander Emerson, alleged to be due to the negligence of the defendants in caring for him after he had been injured on a logging railroad in Columbia County, Oregon.

From Multnomah: William: N. Gatens, Judge. Department 1. It is alleged in the complaint and admitted by the answer that the defendants are partners engaged in maintaining and operating a dairy plant under an assumed trade , name, using in their business a number of vehicles propelled by gasoline; that they hire help for the purpose of operating them; and that on July 13, 1918, the plaintiff was riding on one of those vehicles and assisting the driver in distributing milk.

From Multnomah: William N. Gatens, Judge. In Bane. On or about the twenty-seventh day of November, 1919, W. H. Simms, the plaintiff and appellant, left his ear at the Fashion Garage, located at 192 Tenth Street, Portland, Oregon. This was a public garage conducted for the storage of automobiles by defendant L. I. Sullivan. By the acceptance of the car upon the part of Sullivan, the relationship of bailor and bailee for hire was established between the parties hereto.

<p>Compromise and Settlement — Automobile Owner’s Agreement to Pay Damages Held for Jury.</p> <p>1. In an action against an automobile truck owner for negligence of driver, in which it was claimed that defendant on examination of damage to plaintiff’s car agreed to pay for neeessary repairs, the question of defendant’s liability held for jury.</p>

<p>Evidence — Common Knowledge That Electric Signs are Used for Advertising Purposes.</p> <p>1. It is a matter of common knowledge that electric signs are used for advertising purposes.</p> <p>Contracts — Agreement to “Equip” and “Install” Electric Sign Meant to Put in Place Ready for Use.</p> <p>2. Under an agreement to “equip” and “install” an electric sign for a moving-picture house, it was the duty of power company to install the sign and put it in place ready for use, and to furnish all the equipment, although the duty to “equip” would not carry with it the duty to put the sign in any specified place, or swing it in any particular manner.</p> <p>Contracts — Customs and Usages — Evidence—Parol Evidence Admissible to Show How and Where Electric Sign Should be Placed.</p> <p>3. Where written contract to “equip” and “install” electric sign was silent as to where it should be placed or how it should be swung from the building, evidence was admissible of any parol agreement or understanding between the parties as to such matters, and, in the absence of any parol agreement, it was the duty of the one agreeing to install the sign to do so in the usual and customary manner, and parol testimony would then be admissible for the purpose of showing what was the usual or customary method or manner for the installation of that kind of an electric sign, but any contract, verbal or written, must be construed as to the actual and physical conditions which existed at the time it was made.</p> <p>Contracts — Moving-picture Theater had No Right to Terminate Contract for Installation of Electric Sign Because Power Company Refused to Change Location of Power Line.</p> <p>4. Where, at the time power company agreed to install an electric sign in front of a moving-picture theater, there was a pole and power line or cable on the sidewalk in front of the theater, the theater had no legal right to terminate the written contract because the power company refused to make a requested change in the location of the pole and power line or cable in order to place the sign in a certain position, unless previously agreed upon.</p> <p>Contracts — In Action to Recover Rental for Electric Sign Installed, Held That There was no Evidence of any Oral Agreement That Sign Should be Hung in Particular Place.</p> <p>5. In an action by a power company against moving-picture theater to recover rental for electric sign installed, held that there was no evidence of any parol contract that the sign should he hung in any particular place or specified manner, and instructions assuming that there was such evidence were erroneous.</p> <p>2. Meaning of words “equip” and “equipment,” see note in Ann. Cas. 1913B, 198.</p> <p>Contracts — Hanging Sign at Angle not Compliance With Contract to Install hy Rower Company.</p> <p>6. Hanging a swinging sign in front of a moving-picture theater at an angle so that only one side could he seen was not installing it in the usual and customary manner, and hence power company did not comply with its contract to equip and install the sign, and proprietor of theater had the right to take it down and tender it hack to the power company on its refusal to adjust the matter.</p> <p>Appeal and. Error — Erroneous Instruction Held not to Require Reversal Under Constitutional Provision.</p> <p>7. On appeal from a judgment in favor of proprietors of moving-picture theater in an action for rentals hy a power company, the judgment must he affirmed, notwithstanding an instruction, erroneously assuming that there was evidence of a parol agreement as to the manner of hanging the sign, where the evidence was conclusive that the sign was not installed in the usual and customary manner under the conditions existing, power company having hung the sign at an angle, so that it would not give the results that the proprietors were supposed to have, and having refused to adjust the matter, under Article VII, Section 3, of the Constitution.</p>

<p>From Coos: John S. Coke, Judge.</p> <p>In Banc.</p> <p>On motion to dismiss appeal as to Roscoe Bunch.</p>

<p>Appeal and Error — Affidavit Showed Excusable Mistake in Failing to File Undertaking so as to Authorize New Undertaking.</p> <p>1. Affidavit of .attorney for appellant, excusing failure to serve and file undertaking on appeal on October 4th, as required by Section 550, subdivision 2, Or. L., held to have shown sueh excusable mistake and good faith in prosecuting the appeal as to justify the Supreme Court in permitting appellant to file undertaking in the Supreme Court •pursuant to subdivision 4.</p> <p>ON THE MERITS.</p> <p>Election of Remedies — Complaint in Action Against Third Person not Considered as Election When not Referred to in Answer.</p> <p>2. Where there is no reference in the answer to the complaint filed by plaintiff in an action against a third party, the legal effect of the pleadings in the one ease cannot be considered with reference to the other, or treated as an election of remedies.</p> <p>Evidence — Complaint Against Third Person Held to be Considered as Showing History of Transaction and Party’s Understanding of Contract.</p> <p>3. In a suit on a contract for the sale of logs previously sold to a third party by a contract canceled by mutual consent, though the execution of the earlier contract and what was done under it, or its terms and conditions, or the reasons why it was canceled, were not pleaded as a defense, and there was no reference in the answer to the complaint filed by plaintiff in an action against the third person, such complaint could be considered for the purpose of showing the history of the transaction, the relation of the parties, and the reasons why the contract in suit was executed and how it was understood and construed by plaintiff.</p> <p>Liens — Contract for Sale of Logs Providing for Assignment of Invoices as Security Held not to Give Equitable Lien.</p> <p>4. A contract for the sale of logs previously sold to the C. Company by a contract canceled by mutual consent, which provided that the buyer would execute and deliver acceptances for the price of each raft of logs and, to secure further payment of the acceptances, would assign to a bank with which the seller intended discounting the acceptances its invoices against its customers for lumber manufactured from the logs, gave the seller no equitable lien on the logs or unsold lumber for the purchase price of the logs, where no invoices were made or assigned, especially where the seller, as security for the price, took the C. Company’s promise to pay if the buyer did not pay.</p> <p>ON REHEARING.</p> <p>Liens — Contract for Sale of Logs Held not to Give an Equitable Lien — ‘‘Invoice.”</p> <p>5. A contract for the sale of logs which stipulated that the seller expected to discount the buyer’s acceptances with a bank, wherein the buyer agreed that, in order further to secure payment of the acceptances, it would assign to the bank or such other person as the seller might direct the invoices of the buyer against its customers for the lumber manufactured from the logs, did not give an equitable lien in favor of the seller of the logs after transfer of their possession to the buyer, an “invoice” being merely a written account of the particulars of merchandise shipped or sent to a purchaser, consignee, or factor, with the value or prices and charges annexed; merely another term for bill rendered.</p> <p>Equity — Lien Held not Created by Maxim as to Regarding as Done That Which Ought to be Done.</p> <p>6. The maxim as to regarding that as done which ought to be done means that which the parties agreed to do, and have not done, and cannot be invoked to create an equitable lien on property sold by contract passing title, and not evidencing intent to hold it as security.</p> <p>5. By whom and for what labor or service a logger’s lien may be claimed, see note in Ann. Cas. 1916C, 198.</p>

<p>Guardian and Ward — Guardian not Authorized to Make Contract Binding Ward’s Estate in First Instance.</p> <p>1. A guardian is not authorized to enter into a contract which will bind the ward’s estate in the first instance, except to mortgage the ward’s land for certain purposes, under Section 1328, Or. L., and where such a liability is incurred for the benefit, or on behalf of the ward, it is primarily the guardian’s contract, and the guardian, and not the one with whom he contracts, must look, in the first instance, to the ward’s estate for compensation.</p> <p>Infants — Circuit Court Judgment Ordering Sale of Infant’s Land Void for Lack of Jurisdiction.</p> <p>2. Judgment, attachment, and sale of infant’s land in an aetion in the Circuit Court held absolutely void, such court having no jurisdiction, in view of Section 936, Or. L., giving the County Court exclusive jurisdiction of the sale of an infant’s property.</p> <p>Records — Registration Proceedings by Purchasers at Void Sale of Infant’s Land, Without Notice to Infant, Set Aside.</p> <p>3. Registration proceedings taken by purchasers of infant’s land at sale under judgment of Circuit Court, void for want of jurisdiction, without the infant having been made a party to such proceedings, should be set aside.</p> <p>Judicial Sales — Confirmation Does not Validate Sale on Judgment Void for Want of Jurisdiction.</p> <p>4. A confirmation eures irregularities, but it cannot render valid a sale'upon a judgment void for want of jurisdiction in the court to render it, or upon process which the court had no jurisdiction to employ.</p> <p>Infants — Confirmation of Sheriff’s Sale Under Void Judgment Did not Validate Sale.</p> <p>5. Circuit Court’s confirmation of sale of infant’s land under a judgment of such court void for want of jurisdiction, did not validate the sale.</p> <p>1. On liability of ward’s estate for debts contracted and expenses incurred by guardian in carrying on business, see note in 40 L. R. A. (N. S.) 224.</p> <p>4. Confirmation of judicial sale as not validating void sale, see note in 29 Am. St. Rep. 498.</p> <p>Grounds of collateral attack on confirmed judicial sale, see note in 1 A. L. R. 1446.</p> <p>Purchaser at judicial sale as purchaser pendente lite, see note in Aim. Cas. 1918C, 66.</p>

<p>Taxation — Return of Taxes Refunded, Though, for Insufficient Reason, not Required Where Assessment was Void.</p> <p>1. The assessment of the stock of a national bank to it, instead of to the stockholders, being contrary to Section 5219, Revised Statutes of the United States (U. S. Comp. Stats., § 9784), and so void, so that no application to the board of equalization to correct or set it aside was necessary, the bank will not be required to return the part of the tax refunded to it by order of the 'County Court, though the refund was for the insufficient reason that the property 'had been overvalued; the right of the bank to relief on that account having been lost by failure to apply to the board of equalization to correct the discriminatory assessment.</p>

<p>Wills — Words Construed in Usual and Ordinary Sense Unless It Appears They were Used in Technical Sense.</p> <p>1. The words of a will must be taken in their usual and ordinary sense, unless it appears that they were used in a technical or special sense, or unless, when applied to the subject matter, they have a technical or special meaning.</p> <p>Wills — Testator’s Intention must Prevail as Determined from the Whole Will, and not from Detached Portions.</p> <p>2. Section 10124, Or. L., commands that all courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true interests and meaning of the testator, so that his will shall prevail, and such intent may be gathered from the whole instrument, and not from detached portions of the will alone.</p> <p>Wills — Intention Construed from Meaning Words o.f Whole Will Convey Per Se.</p> <p>3. In construing a will, the court seeks testatrix’s intention as expressed in the will, and the court’s conclusion may or may not give words their technical or literal import, or may give expressions their ordinary and grammatical sense, but the meaning settled upon, if settled intelligibly, is that which the words and language of the whole will, properly interpreted, convey per se.</p> <p>1. On law governing construction of will generally, see note in 2 L. R. A. (N. S.) 443.</p> <p>Evidence admissible to aid in construction of will, see note in 59 Am. St. Rep. 279.</p> <p>2. Testimony of scrivener as admissible to show intention of testator, see note in Ann. Cas. 1913A, 1917.</p> <p>Wills — Grant of Life Estate With Power of Sale Does not Enlarge Estate into a Fee, but Gives Naked Power to Dispose of Fee.</p> <p>4. An absolute power of sale or disposal attached to an express life estate will not enlarge it into a fee, although the power is to convey a fee, and where an estate for life is expressly given, and the power of disposition is annexed to it, the fee does not pass under such devise, but the naked power to dispose of the fee, although it is otherwise in ease there is a gift generally of the estate, with power of disposition annexed.</p> <p>Wills — Gift of Power to Dispose of Whole Estate, Annexed to Life Estate, With Remainder to Third Persons, Confers on Tenant Plenary Power to Convey Fee.</p> <p>5. A right of disposition is not property, but a mere authority and an absolute power of disposal is not inconsistent with an estate for life only, and a gift of power to dispose of the whole estate annexed to an estate for life, with remainder over in fee to third persons, confers upon the life tenant plenary power to convey the fee upon the terms of the power granted.</p> <p>Wills — Where Estate is Given for Life in Definite Terms, Added Power of Disposition Does not Enlarge Estate into Fee Simple.</p> <p>6. It is a rule of construction that, where an estate is given for life in definite terms, an added power of disposition does not enlarge the estate into a fee simple, and this rule seeks to give effect to the intention of the testator, but regards specific terms such as “for life,” “during his or her natural life,” etc., as showing what the testator intended to give.</p> <p>Wills — Will Construed as Giving Life Tenant Power to Dispose of Fee.</p> <p>'7. Where testatrix gave residue of estate to her husband for life, remainder to their children, and provided that “he may sell and convey any and all of the property in the usual course of business, the same as I could or would do if personally present,” held, that the husband had power to convey the fee.</p> <p>4. Estate created by grant or devise of life estate with absolute power of disposition, see notes in 9 Ann. Cas. 947; Ann. Cas. 1912B, 424; Ann. Cas. 1916B, 575; Ann. Cas. 1916D, 400.</p> <p>7. When power to sell and convey given to life tenant by will, see note in 44 Am. Rep. 783.</p>

<p>Wills — Intention of Testator Controls.</p> <p>1. In construing a will, if tie intention of tie testator can reasonably be ascertained, it controls tbe disposition of Ms property.</p> <p>1. Rule that wills are to be more liberally construed than deeds, see note in Ann. Cas. 1913E, 1288.</p> <p>Wills — Devise With Condition Devisee Should not Sell or Encumber Before Certain Time Held to Pass Clear Title After Such Time.</p> <p>2. Testator devised to Bis son certain land subject to the restrictions that it should not be sold or mortgaged until he was 40 years old, nor be subject to- his debts, that if he sold or mortgaged any part of it before that time all his interest should cease and the land descend to his children, if any, and, if not, to his brothers then living, the devise to be accepted in full payment of testator’s indebtedness to devisee -except $500, and an encumbrance on the land to be paid out of the estate. Held, in view of Sections 10121, 10124, Or. L., providing that the intent of testator shall control, that it was the intention of testator that devisee, after he reached 40, could dispose ef the land at his pleasure, and that payment of the encumbrances from the estate indicated his intention to pass a clear title.</p> <p>Wills — Term “Heirs” or Other Words of Inheritance not Necessary to Create Estate in Fee Simple.</p> <p>■ 3. Under Section 9847, Or. L., the term “heirs” or other words of inheritance are not necessary to create or convey an estate in fee simple.</p> <p>Wills — Estate in Fee Given in one Clause Cannot be Taken Away or Diminished hy Subsequent Expression of Doubtful Import Repugnant Thereto.</p> <p>4. Where an estate in fee is given in one clause of a will in clear and explicit terms, the interest which the devisee thus obtains cannot be taken away or diminished by any subsequent .vague or general -expression of -doubtful import, or by any inference deducible therefrom that may be repugnant to the estate given.</p> <p>Wills — “Executory Devise” Defined.</p> <p>5. An “executory devise” is a future estate or interest in lands created by will, and limited so that it eannot take effect as a remainder or a future use, which does not vest at the death of the testator, but only on the happening of some future contingent event, can be created without the intervention of a preceding estate, and may be limited after a fee.</p> <p>Perpetuities — Executory Devise, to Take Effect Only upon Indefinite Failure of Issue, is Void Under Rule Against Perpetuities.</p> <p>6. An executory devise, to take effect only upon an indefinite failure of issue, is void under the rule as to perpetuities, for an ex-ecutory interest, to be valid, must take effeet within the life or lives of those in being, and within 21 years thereafter, with the usual period of gestation added.</p> <p>■Wills — -Devise of Fee Over if Devisee “Die Without Issue,” Means Dying Without Issue in Lifetime of Testator.</p> <p>7. A devise of a fee, with a condition that if the devisee “die without issue” the estate is to go to others, means dying without issue in the lifetime of the testator, unless a different intention is manifest from the context of the will.</p> <p>2. Validity of devise with limited or partial restraint on alienation, see notes in 7 Ann. Cas. 319; Ann. Cas. 1912C, 1329.</p> <p>6. Validity of devise over limited upon indefinite failure of issue, see note in 6 Ann, Cas. 648.</p> <p>Wills — Subsequent Paragraph of Will Held not to Debase Fee Granted Devisee in Earlier Paragraph.</p> <p>8. Testator devised to a son in one paragraph of his will certain land subject to the restriction that it should not be sold or mortgaged until devisee was 40 years of age, nor be subject to his debts, that if he sold or mortgaged any part of it before such time all his interest therein should cease and the land descend to his children, if any, and, if not, to all his brothers then living, the devise to be accepted and received in full payment of testator’s indebtedness to devisee, except $500, and the encumbrance upon the land to be paid out of the testator’s estate. In another paragraph of the will testator directed that should any of the devisees named in the will die without leaving lineal descendants, children or grandchildren, all of the property devised to such devisee should go in equal shares to his brothers and sisters then living, or to the children of any brother or sister then deceased. Held, that the latter provision did not debase the fee-simple title whieh passed to the son after he attained the age of 40 years without violating any of the restrictions in the earlier paragraph of the will. (Per Bean and Johns, JJ.)</p> <p>Remainders — No Remainder upon Estate in Fee Simple or Determinable Fee.</p> <p>9. There can be no remainder upon an estate in fee simple or upon a determinable fee, for the reason that by disposing of such an estate one divests himself of all his interest, and has no estate to transfer.</p> <p>Wills — Executory Devise of Fee-simple Estate cannot -be Defeated or Lessened by Uncertain Clause in Another Portion of Will.</p> <p>10. An executory devise being for the purpose of carrying out the wish of a testator, no technical, indefinite or uncertain clause in a subsequent paragraph of the will should be construed to defeat or lessen the plain devise of an estate in fee simple, made in an earlier clause of the will.</p> <p>Wills — Devise Over on Death Without Children Held to Take Effect Whether the Death is Before or After the Death of Testator.</p> <p>11. When a devise is made to one person in fee and upon his death to another in fee, and the death of the first taker is coupled with other circumstances whieh may or may not ever take place, as death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect according to the ordinary and literal meaning of the words, upon the death of the devisee, under the circumstances indicated, at any time, whether before or after the death of the testator.</p> <p>Equity — Complaint Taken as True on Demurrer.</p> <p>12. All averments of a complaint must be taken as true when considered upon demurrer.</p>

<p>Pleading — Allegation of Probate of Will Held. Sufficient on General Demurrer Without Alleging Probate was on Sworn Petition.</p> <p>1. Though probate of a will should be on a sworn petition, it is enough as against a general demurrer for complaint on a note assigned by an administrator e. t. a. to allege probate was on petition, showing enumerated things.</p> <p>Executors and Administrators — Order of Court not Necessary for Sale of Note.</p> <p>2. A statute 'requiring an order of court for sale of personal property by an administrator does not apply to negotiable instruments.</p> <p>Executors and Administrators — Assignee of Foreign Administrator may Sue in the State.</p> <p>3. The right of an assignee of a note to sue thereon in the state is not affected by the fact of the assignor’s being a foreign administrator.</p> <p>Gifts — Essentials of “Gift Inter Vivos” Enumerated.</p> <p>4. The essential elements of a “gift inter ■vivos” are: A donor competent to contract; freedom of will of donor; the gift must be complete and nothing left undone; the property must be delivered by the donor and accepted by the donee; the gift must go into immediate and absolute effect.</p> <p>Gifts — Invalid for Condition of Reversion.</p> <p>5. A gift is rendered invalid by a condition coupled therewith that on the happening of an event it shall revert to the donor.</p> <p>Gifts — Giving of Note Indicates Gift of Money was not Accepted.</p> <p>6. The giving by the alleged donee of money to the alleged donor of a note for the amount, said donee urging said donor to take the note, indicates that the gift was not accepted.</p> <p>6. The question of note as subject of gift by maker is discussed in notes in Ann. Cas. 1914C, 1139; 26 L. R. A. 305; 27 L, R. A. (N. S.) 308; I>. R. A. 1918C, 340.</p> <p>Gifts — Intention to Transfer Title Essential for Gift Inter Vivos.</p> <p>7. To make a valid- and effective gift inter vivos, there must be an intention to transfer title to the property.</p> <p>Gifts — Relinquishment of Control Essential for Gift Inter Vivos.</p> <p>8. For a valid gift inter vivos there must be, not only a delivery of possession of the article, but a relinquishment of dominion and control.</p> <p>Gifts — Loan, not a Gift.</p> <p>9. A loan is not a gift.</p> <p>Gifts — Showing of Intention and. Delivery Essential for “Gift Causa Mortis.”</p> <p>10. To make a “gift causa mortis” there must be clearly and intelligently manifested an intention to make a present gift, and in consummation of the intention a delivery of the property to or for the use of the donee.</p> <p>Gifts — Apprehension of Speedy Death Essential for Gift Chusa Mortis.</p> <p>11. A gift causa mortis must be made on apprehension of speedy death from present sickness or impending peril.</p> <p>Gifts — Gift Causa Mortis Revocable During Donor’s Life or by Recovery from Illness.</p> <p>.12. A gift causa mortis is revocable during life of the donor or is revocable by recovery or delivery of the donor from the illness or peril.</p> <p>Pleading — Allegation That Gift was not Revoked, Conclusion.</p> <p>13. Allegation of pleading, claiming a gift, that the alleged donor did not revoke it, is a conclusion.</p> <p>Gifts — Evidence of Gift Causa Mortis Closely Scrutinized.</p> <p>14. Gifts causa mortis are against the poliey of the law, and evidence thereof is carefully scrutinized.</p> <p>Wills — Foreign Judgment of Probate cannot be Attacked for Irregularities.</p> <p>15. Under the full faith and credit clause, Article IV, Section 1, Constitution of the United States, probate proceedings of another state cannot be discredited for irregularities.</p> <p>Wills — Foreign Decree Probating Will cannot be Attacked by Showing Later Will.</p> <p>16. Decree of another state probating a will cannot be attacked on the ground of there being a later will, except by proceedings in the other state.</p> <p>Bills and Notes — Evidence of Execution Sufficient.</p> <p>17. Evidence of execution of note sued on held sufficient to sustain finding.</p> <p>Depositions — Not Objectionable for Statement fox Identifying Person.</p> <p>18. Depositions of plaintiff and his witness A. are not objectionable because of their statement that A. was administrator of the payee of the assigned note sued on, this being merely for identifying the administrator, and not used for proving his appointment.</p> <p>Stipulations — Not to Object to Form of Deposition, Effective.</p> <p>19. Depositions are admissible notwithstanding informalities therein, it having been stipulated by the parties that no objection should be made to the form or manner of taking them.</p> <p>Bills and Notes — Expression Construed to Mean Interest at Rate Per Annum — “10 Per Cent Interest.”</p> <p>20. Quoted provision in note providing for payment of its face amount, “at 10 per cent interest” means with interest at the rate of 10 per cent per annum.</p> <p>ON MOTION TO RETAX COSTS.</p> <p>Costs — For Additional Abstract by Respondent not Taxable, Where It was a .Copy of Appellant’s Abstract..</p> <p>21. Supreme Court rule 7 (89 Or. 712, 173 Pae. viii), providing for a further or additional abstract by respondent, if the appellant’s abstract be imperfect or unfair, does not contemplate the repetition of matter included in appellant’s abstract, so that, where respondent’s additional abstract repeats the matter contained in appellant’s abstract, and includes a transcript of the testimony, costs therefor cannot be taxed.</p>

From Deschutes.: T. E. J. Duffy, Judge. Department 1. The plaintiffs are husband and wife and were engaged in the stock and dairy business in Deschutes County, and the owners of a dog named Tip, which was valuable in the handling of their stock “and enabled them to get along with much less hired help in their business than they could without the use of said dog.” The defendant Murphy was the owner of a band of sheep, and the defendant Lake was in his employ as a herder.

From Umatilla: Dalton Biggs, Judge. In Banc. This is an appeal from an order overruling defendant’s motion to dismiss an indictment against him. The facts are as follows: On October 7, 1919, defendant was indicted by the grand jury of Union County for the crime of perjury and on December 20th. was arraigned and entered his plea of not guilty.

<p>Adverse Possession. — Complaint Held to Sufficiently Allege That Possession was Exclusive.</p> <p>1. - In a suit to quiet title, a complaint alleging that plaintiff had been and still was in possession of the premises up to the line fence inclosing them, and that his possession had 'been at all times and still was open, notorious, continuous, uninterrupted and adverse and under claim of right and color of title thereto as against the whole world, sufficiently showed that the possession was exclusive without directly so alleging.</p> <p>Adverse Possession. — Bars Action to Recover Possession ¡After Statutory Period.</p> <p>2. Adverse possession for ten years, as provided by Section 4, Or. Laws, is a bar to an action by the owner to recover the possession thereof.</p> <p>Adverse Possession — Visible, Notorious and Exclusive Possession Under Claim of Ownership to the Knowledge of the Owner is Essential to “Adverse Possession.”</p> <p>3. To establish adverse possession so as to divest the owner of his title, the evidence must show a possession visible, notorious andi exclusive under a claim of ownership continuing for 10 years and the owner must have knowledge of such possession and claim.</p> <p>Vendor and Purchaser — Visible, Notorious and Exclusive Possession Charges Purchaser With Knowledge.</p> <p>4. Visible, notorious and exclusive possession under a claim of ownership is sufficient to put a purchaser upon notice and charge him with knowledge of such claim.</p> <p>Adverse Possession — May Ripen into Title Though Taken by Mistake, but not if Held Without Intention of Claiming Beyond True Line.</p> <p>5. Where a person enters and occupies land not embraced in his title, claiming it as his own, for the statutory period of 10 years, he acquires title thereto though his entry and possession was under a mistake; but if possession was held under mistake or ignorance as to his true line, and with no intention to claim beyond the true line when discovered, such possession is not adverse, and cannot ripen into a title as against the real owner.</p> <p>Adverse Possession — Immaterial Who. Built Fence to Which Party Claims.</p> <p>6. Where a party claiming title by adverse possession claimed and occupied to a fenee, it was immaterial that other persons aided in the construction of the fence.</p> <p>Adverse Possession — Allegation of Title Supported by Proof of Adverse Possession for Statutory Period.</p> <p>7. In a suit to quiet title, plaintiff’s allegation of title in fee is supported by proof of adverse possession for the statutory period.</p> <p>Adverse Possession — Vests Perfect Title.</p> <p>8. Adverse possession of real estate for the period prescribed by the statute of limitations vests a perfect title in the possessor as against the former holder of the title and all the world, and entitles him to all remedies incident to possession under a written conveyance.</p> <p>Adverse Possession — Evidence Held to Make Prima Facie Case of . Possession Under Claim of Ownership.</p> <p>9. Evidence that plaintiff and his ancestors had been in open, visible, notorious and exclusive possession of land for 10 years, that it was inclosed with a substantial fenee, that an orchard had been planted and costly and permanent improvements constructed, and that plaintiff had treated the premises as his own, made a prima facie ease for plaintiff,, and raised the presumption that his entry was one of right and his elaim one of ownership, and entitled him to prevail, in the absence of any showing that his entry and holding were in subordination to defendant’s title.</p> <p>3. What essential to adverse possession, see notes in 28 Am. St. Rep. 158; 88 Am. St. Rep. 701.</p> <p>5. Effect of possession taken and held through mistake or ignorance, see notes in 24 Am. St. Rep. 388; 15 Ann. Cas. 827; Ann. Cas. 1912A, 450.</p> <p>Adverse Possession — Depends on Intent, to he Determined by What Party has Done.</p> <p>Id. Adverse possession is founded upon the intent with which the occupant has held possession, and this intent is to be determined by what he has done.</p> <p>Adverse Possession — Possession of Ancestor and Heir may be Tacked.</p> <p>11. The adverse possession of a party and his ancestor may be tacked to complete the bar of the statute of limitations.</p> <p>Appeal and Error — Findings of Value not Binding in Suit to Quiet Title.</p> <p>12. In a suit to quiet title, the findings of the trial judge, who 'heard the testimony and viewed the premises and the boundary fence involved in the litigation, are of value in the consideration of the evidence by the Supreme Court, though not binding upon that court.</p> <p>11. Tacking successive possessions under adverse possession, see note in 13 Am. Dec. 331.</p>

From Jackson: Frank M. Calkins, Judge. Department 1. The question for decision is whether, in the circumstances shown by the record, a claim for electric current furnished for light, heat and power, and for supplies, used in the operation of a railroad is entitled to priority over a claim for interest due on a mortgage covering the railroad.

<p>Animals — Replevin Lies to Enforce Agister’s Lien.</p> <p>1. Under Sections 10227, 10229, Or. L., replevin lies to recover possession of cattle wrongfully taken from one who has a right to retain possession of them for the satisfaction of his lien for pasturing them.</p> <p>Animals — Agister’s Lien Waived by Contract.</p> <p>2. Under Section 10229, Or. L., the right to a lien for pasturage may be waived, and is waived and defeated by a pasturage contract providing that the owner of the cattle may remove them from the premises at any time at his option.</p> <p>Animals — Complaint Held not to Show Rescission of Waiver of Agister’s Lien.</p> <p>3. In action of replevin to recover possession of cattle, the right to possession of which was claimed under a lien for pasturage under Section 10227, Or. L., plaintiff did not show such performance of the pasturage contract by him as entitled him to rescind it, and thereby escape the effect of a waiver of sueh lien in the contract where, instead of averring due performance generally, under Section 88, he alleged merely that he pastured the cattle, without stating his performance of other provisions of the contract, such as looking after and salting the cattle.</p> <p>Contracts — Rescission Denied Defaulting Party.</p> <p>A. One may not rescind a contract on which he is in default.</p> <p>Animals — Complaint to Enforce Agister’s Lien Held Defective in Describing Cattle,</p> <p>5. In action of replevin to recover possession of cattle, the right to possession of which was claimed under a lien for pasturage under Section 10227, Or. L., complaint held defective, in that the description of the cattle was too indefinite to support a judgment.</p>

<p>From Wallowa: J. W. Knowles, Judge.</p> <p>In Bane.</p> <p>Although the action is against two defendants, the Wallowa National Bank and the Enterprise Mercantile & Milling Company, for convenience the defendants will be alluded to either as such parties or as “the bank.” A résumé of the complaint shows that about November 8, 1915, the plaintiff conveyed to the defendants 1,840 acres of land in Wallowa County. On the 'same day the plaintiff and the defendants made an agreement in writing whereby the plaintiff was appointed the exclusive agent of the latter from that date until June 1, 1916, to sell the land, for which the defendants were to receive $13,887.96, with interest at 10 per cent per annum from November 8, 1915, to the date of sale. There were mortgages on the land concerning which it was provided that the buyer should assume and agree to pay them, and that the plaintiff should receive from the defendants as commission for making such sale any excess of the purchase price obtained over the amount of cash to be paid to the defendants upon their delivering a deed of the premises. The complaint further says that on May 29, 1916, the plaintiff produced W. J. Morrow as a buyer of the land and, acting under the authority of the contract, entered into an agreement with Morrow whereby the plaintiff promised to sell to Morrow for and on behalf of the defendants, and Morrow agreed to buy the land at the price of $32,500, paying $13,887.96, with interest at 10 per cent from November 8, 1915, to May 30, 1916; and that the purchaser should assume and agree to pay all the other mortgage indebtedness referred to, and further, to pay the difference between $32,500 and the aggregate of claims against the land, direct to the plaintiff. It is then alleged that “the said W. J. Morrow was then and there able, ready and willing to pay the purchase price for said lands and premises then and there agreed upon, and in accordance with the terms specified in the agreement hereinbefore mentioned between the plaintiff herein and defendants.”</p> <p>The plaintiff’s pleading narrates that on or about May 30, 1916, the defendants informed Morrow that the plaintiff had no right to sell the property, to offer the same for sale or to procure a buyer therefor, and refused to make a deed to Morrow, but told him that after June 1, 1916, they would be in a position to deal directly with him and would sell him the property for a less sum than that agreed upon between Morrow and the plaintiff. Claiming that if the contract had been performed, the plaintiff would have received the sum of $9,648.81, the plaintiff prays for judgment against the defendants, that they be required to pay into court the amount due on one of the mortgages, or to satisfy it of record, and for the money mentioned, together with interest thereon at the rate of 6 per cent from May 30, 1916, and for costs.</p> <p>The answer admits the corporate character of the defendants and the delivery of the plaintiff’s deed to the defendants, but denies all other allegations except as set forth in the answer. The defendants say that on November 8, 1915, they made and signed a writing appointing the plaintiff their agent to sell the land at any time on or before June 1,1916; that under that contract they were to receive $13,887.96, with interest at 10 per cent per annum from November 8, 1915, to the date of the deed, all to be paid in cash on delivery of that instrument. It also recites the mortgages mentioned in the complaint and avows that the deed should be made subject to those mortgages, and mentions certain other conditions about the right of defendants to improve the land and the right of the plaintiff to remain in possession. It is further averred that the contract provided that if the defendants should pay the mortgages or interest, or taxes on the land, the amounts so paid should be returned to them with interest at the rate of 10 per cent per annum in cash. They say that they complied with all the terms of the contract; and that during the life of the contract they did not sell the land or any part thereof, set out the amounts of money they paid to discharge encumbrances on the land and for which the property was liable, aver their willingness to convey the land, but say that the plaintiff did not produce any purchaser ready, able or willing to buy the same.</p> <p>The reply is in these words:</p> <p>“Denies each and every material allegation therein contained not hereinbefore specially admitted in the complaint.”</p> <p>A jury trial resulted in a verdict in favor of the plaintiff for $8,025.03. From the ensuing judgment the defendants appeal.</p>

From Multnomah: Robert Gr. Morrow, Judge. In Banc. Plaintiff alleges that on August 26, 1916, in the Circuit Court of Tillamook County, the defendant recovered a decree against herself and husband for $16,875, with interest at the rate of 6 per cent per annum, from July 1, 1916; for the further sum of $158.15, with interest at the rate of 10 per cent from October 10, 1915; for $1,000 attorneys’ fees, and $51.80 as costs, which, upon appeal to this court was affirmed except…

From Crook: T. E. J. Duffy, Judge. Department 1. This is an action at law for money had and received. The parties are H. S. Cram, plaintiff and respondent, and H. F. Powell, defendant and appellant. The cause was tried in the Circuit Court of the State of Oregon in and for Crook County, and resulted in a verdict for the plaintiff in the sum of $1,236.46. The plaintiff alleges two causes of action.

From Wallowa: John W..Knowles, Judge. In Banc. The complaint is in the usual form of claim and delivery, and charges that the plaintiff is the owner and entitled to the possession of a certain brown mare which the defendant wrongfully and unlawfully holds and retains in Wallowa County, Oregon, and prays for judgment for its possession or for its value, if delivery cannot be had, and damages. The answer is a general denial.

<p>Navigable Waters — “Navigable Stream” — Logs and Logging.</p> <p>1. A stream which at certain periods of the year it is practicable to use in its natural state for the purpose of floating timber products is a navigable stream for such purpose.</p> <p>Eminent Domain — “Taking of Property” — Riparian Proprietor.</p> <p>2. Interference by logging company with natural flow of a stream, in so far as it injures a riparian proprietor, or interferes with his right to the use of a stream, is a “taking” pro tanto of his property, governed by Article XI, Section 4 of the Constitution, prohibiting such taking without compensation first made or secured.</p> <p>Navigable Waters — Splash-dams—Riparian Owners.</p> <p>3. In so far as the use of splash-dams does not work injury to the rights of riparian owners, their use is proper.</p> <p>2. Liability of one using stream to float timber for resulting injuries to riparian proprietor, see notes in 10 Ann. Cas. 235; Ann. Cas. 1918A, 732; 40 Am. St. Rep. 438; 82 Am. St. Rep. 265; 90 Am. St. Rep. 819, 829; 103 Am. St. Rep. 525.</p> <p>On relative rights and duties between thos'e maintaining dam in floatable stream and those using stream for floating logs and timber therein, see note in 22 L. R. A. (N. S.) 545.</p> <p>On right of riparian owner for compensation for damages to his property, by construction, under legislative authority, of dams or booms for floating or storing logs, see note in 22 L. R. A. (N. S.) 641.</p>