Volume 101 — Oregon Reports

<p>Parties — Want of Capacity to Sue Waived by Failure to Demur.</p> <p>1. In proceeding by irrigation district to test the validity of its organization under Laws of 1919, page 693, the objection that the petition was authorized by only two directors, the bond of neither of whom had been approved by the county judge, was waived by failure to raise objection by demurrer under Section 68, subdivision 2, Or. Laws, and Sections 71 and 72; the objection being to the legal capacity to sue, the want of which appeared on the face of the petition.</p> <p>Evidence — Judicial Notice Taken of Organization and Boundaries of Irrigation District.</p> <p>2. The court will take judicial notice of the organization and boundaries of an irrigation district organized under Laws of 1917, page 743, and acts amendatory thereto.</p> <p>Waters and Watercourses — Irrigation District a Complete and Independent Corporate Entity.</p> <p>3. An irrigation district, organized under Laws of 1917, page 743, and acts amendatory thereto, constitutes a complete and independent corporate entity.</p> <p>Waters and Watercourses — Organization of Irrigation District not “County Business,” Within Constitutional Provision Providing for Commissioners to Sit With County Judge in Transaction of County Business.</p> <p>4. In proceeding to organize irrigation district under Laws of 1917, page 743, and acts amendatory thereto, the county judge hail jurisdiction without the attendance of the county commissioners, notwithstanding Const., Art. VU, Section 12, providing for election of commissioners to sit with county judge while transacting “county 'business”; tbe organization of an irrigation district not being "county business,” within the Constitution.</p> <p>Waters and. Watercourses — Agreement Between Promoters of District Being Organized and Corporations Owning Extensive Lands Within Proposed District Held not to Affect Validity of Organization.</p> <p>5. Agreement between promoters of irrigation district being organized under Laws of 1917, page 743, and acts amendatory thereto, and two corporations owning extensive lands within the proposed district, that corporations were to have the right to name two of the directors did not affect validity of the organization of the district, where election was ordered by county judge on petition and notiee in proper form, signed by proper petitioners, after a hearing without the agreement having been brought to court’s attention, and where there was no charge of fraud or corruption in procuring order or in conducting the election, and where it did not appear that the men named as directors were incompetent or disqualified, or had knowledge of the agreement; the judgment being conclusive, under Sections 756, 7308, Or. Laws.</p>

From Umatilla: Gilbert W. Phelps, Judge. Iu Banc. This is an appeal from an order of the Circuit Court dismissing the appeal of Lee Johnson from an order of the County Court, which latter order was made in the course of certain probate proceedings the particulars of which are as follows: In October, 1919, Jackson Nelson died in Umatilla Connty, Oregon,leaving a will whereby he appointed David Taylor his executor, providing that in case David Taylor should die before the…

<p>Waters and Watercourses — Occasional Diversion of Water Under Temporary License Held not to Support Easement or Claim by Adverse User.</p> <p>1. Where defendant used the surplus water leaving plaintiff’s ditch 'by a spillway, the faet that occasionally, under a temporary license, it obstructed the ditch below the spillway in order to divert water into the spillway would not support a claim of an easement in the ditch or a claim by adverse user.</p> <p>Waters and Watercourses — Where Decree Did not Adjudicate Ownership of Ditch Water-master Held Without Authority to Permit Taking of Water from Ditch.</p> <p>2. Where in a proceeding to adjudicate water rights the finding of the boaTd of control and Circuit Court that L. appropriated waters by diverting them through a ditch into plaintiff’s mill-raee and then diverting them from the mill-race was unsupported by L.’s claim or testimony, and the decree merely adjudged that L. was the owner of 2% second-feet of water without pretending to settle the ownership of any particular ditch or of the right to use it, conceding that the board had jurisdiction of such questions, the water-master had no authority to authorize defendant, L.’s successor in title, to take water from plaintiff’s ditch.</p> <p>Waters and Watercourses — Water-master Held not Necessary Party to Suit to Enjoin Taking of Water from Plaintiff’s Ditch.</p> <p>3. Where the decree in a proceeding to establish water rights did not pretend to settle the ownership of any particular ditch or the right to use the same, the water-master, who was claimed to have permitted defendant to take water from plaintiff’s ditch, was not a necessary party to a suit to enjoin such taking.</p> <p>Injunction — Interference With Ditch and Appliances Under Claim of Eight Enjoined, Though There had Been Only One Occasion Causing Serious Injury.</p> <p>4. Where defendant claimed the right to enter plaintiff’s ditch and tamper with its appliances, not only at present but in the future, for the purpose of taking water therefrom, and had on several occasions interfered with such appliances, plaintiff was entitled to an injunction, though only one of such interferences had occasioned serious injury; the others being calculated to produce some injury.</p>

<p>Judgment — Evidence Held Insufficient to Show Agreement to Bolease on Part Payment.</p> <p>1. Evidence held insufficient to show that defendant, who had a judgment against a decedent and others, agreed to release the judgment on payment of his pro rata share of the assets of the estate, or to accept sueh payment in full satisfaction, or that his attorneys ever made such promise or agreement.</p> <p>Compositions With Creditors — Defined.</p> <p>2. A “composition with creditors” is an agreement between an insolvent or embarrassed debtor and his creditors, whereby the creditors, in consideration of an immediate payment, agree to accept a dividend less than the whole amount of their claims, to be distributed pro rata in discharge and satisfaction of the whole debt.</p> <p>Compositions With Creditors — Burden of Proof on Party Alleging.</p> <p>3. Plaintiff, suing to enjoin a sale under execution on the ground that the judgment creditor was a party to a composition between another judgment debtor’s administrator and creditors, had the burden of proving a composition agreement on the part of the judgment creditor.</p> <p>Attorney and Client — Attorney Without Authority to Compromise Judgment in His Hands for Collection</p> <p>4. An attorney, to whom a judgment was intrusted for collection, had no power, in the absence of express authority, to bind his client by a compromise of the amount due on the judgment, and if he agreed to aeeept less than was actually due in full satisfaction, the client was at liberty to ignore the compromise and collect the full amount.</p> <p>Vendor and Purchaser — Purchaser Charged With Notice of Docketed Judgment Against Vendor.</p> <p>5. Under Section 205, Or. L., providing that from the date of docketing a judgment it shall be a lien on all the real property of the defendant one purchasing land from one of the defendants in a properly doeketed judgment was charged with notice of the judgment.</p> <p>4. Eight of attorney to compromise client’s cause of action, see notes in 21 Aun. Cas. 577; Ann. Cas. 1915B, 832.</p>

From Klamath.: D. V. Kuykendall, Judge. In Banc. This is a suit to foreclose a chattel mortgage. The trial court found and decreed that the mortgage be foreclosed as against all of the property described therein except, one ten-horse power electric motor, one six-inch centrifugal pump, and one five-inch centrifugal pump, which the court found to be the property of defendants Margaret H. Barney and William M. Bray. Plaintiff appeals.

<p>Landlord and Tenant — Breach of Lease Held not Ground for CanceUation.</p> <p>1. Where lessee of farm, under lease entitling lessor as rental to certain portions of the crop raised and to certain pastures, was in the actual possession of the land, giving it his personal attention, lessee’s noneomplianee with lease as to care of land, his failure to account to lessor for her half of the pasture, or the proceeds of about one ton of alfalfa, or the little hay that he fed to his hogs, and his violation of lease permitting another to use a small portion of the land, and the use of the bam for one team, not decreasing lessor’s share of the rental, was not ground for cancellation of lease in equitable actions therefor, in the absence of allegation that lessee was insolvent, and in the absence of a showing that the loss to the estate itself, if any by reason of breach, would be nominal; the lessor having a complete and adequate remedy at law.</p> <p>Landlord and Tenant — Forfeiture of Lease not Decreed for Mere Nominal Technical Violation.</p> <p>2. Equity will not deeree the forfeiture of a lease for a mere nominal technical violation, but there must be something that goes to ihe substance or merits, or which would at least tend to show waste, destruction or injury to the estate itself.</p> <p>Landlord and Tenant — Provisions of Lease as to How Land Should be Farmed Substantial Considerations for Leasing.</p> <p>3. Provisions of lease, merely specifying how the land should be farmed and what lessee should do toward upkeep of farm, were substantial considerations for the leasing.</p> <p>Dismissal and Nonsuit — Dismissal of Lessor’s Suit to Cancel Leas® Should be Without Prejudice to Eights of Either Parties.</p> <p>4. Dismissal of lessor’s suit for cancellation of lease for lessee’s noneomplianee therewith, on the ground that the alleged breach did not injure the estate itself and that lessor had an adequate remedy at law, should be without prejudice to rights of either party.</p>

From Malheur: Dalton Biggs, Judge. In Banc. This is a suit brought hy W. S. Rees against the Valley View Drainage District, alleged hy the plaintiff to be “a pretended corporation” and against C. E. Ingraham, G. W. Dean and B. B. Wood acting as supervisors, and against B. B. Wood as secretary of such district.

<p>Brokers — Contract, Held to Limit Broker’s Right to Compensation to Purchaser Burnished Within Thirty-day Period.</p> <p>1. Where a contract giving a broker the exclusive right for a sixty-day period to sell property, and providing that, if a buyer ■was furnished, the vendor should pay the broker 5 per cent commission, contained a written addition declaring that the exclusive listing should be in foree for a term of sixty days, the broker to obtain commission was bound to furnish a purchaser ready, able and willing to buy within the sixty days; the written addition limiting his authority.</p> <p>Brokers — Evidence Insufficient to Show That Broker Produced Purchaser Within Time Specified.</p> <p>2. In an action by a broker for commissions, evidence, held insufficient to show that the broker produced a purchaser within the time limited.</p> <p>1. On performance by a real estate broker of Ms contract to find a purchaser or effect an exchange of his principal’s property, see note in 44 L. R. A. 593.</p>

<p>Sales — Delivery of Hay in Stack Without Segregation. — Buyer Could Replevin.</p> <p>1. Where one purchased and paid for a certain number of tons of hay out of a certain stack, segregation of sueh amount of hay</p> <p>from the stack was not necessary to an aetual delivery thereof, and purchaser could bring action in replevin to recover the same.</p> <p>Replevin — Verdict in Replevin Action Held Definite and Certain, Though Value was not Given.</p> <p>2. In replevin to recover a specific amount of hay out of a stack, where complaint alleged that defendant was in unlawful possession thereof and that it was of the value of $535, and answer alleged that defendant was the owner of such hay which was of the value of $535, a verdict finding that plaintiffs were the owners and entitled to the possession of sueh amount of hay was both definite and certain as to the amount and value of the hay, although it did not state the value thereof, and there was no prejudicial error.</p> <p>Costs — Prevailing Party Only Entitled to Witness Fees for Day of Trial.</p> <p>3. Although a case was at issue on March 8th, the first day of the term, and was not set down for trial until Mareh 17th, plaintiffs were not entitled to per diem witness fees of 11 days, although witnesses were under subpoena in attendance upon court during sueh time; no party to a lawsuit being entitled to costs for witnesses who were in attendance upon the court before the case was set down for trial.</p> <p>1. When title passes to goods sold from mass, see note in 9 Ann. Cas. 26.</p>

<p>Time — Day Following Entry of Judgment to be Excluded to Computation of Time for Filing and Serving Notice of Appeal.</p> <p>1. The day following the entry of a judgment is to be excluded in the computation of time within which notice of appeal may be served and filed, under Section 550, L. O. L., as amended by G-eneral Laws of 1913, page 617, and where judgment was rendered and entered on Monday, November 3, 1919, notice of appeal served and filed January 3, 1920, was served and filed in time.</p> <p>ON THE MERITS.</p> <p>Appeal and Error — Undertaking on Appeal from County Court, Which'is Limited to a Definite Sum, is Insufficient.</p> <p>2. ' An undertaking on appeal from a judgment of the County Court, denying-a claim against an estate whieh was limited to a definite n”d specified sum, is insufficient, and does not comply with. Section 551, Or. L.</p> <p>Appeal and Error — Allowance of Amendments to Undertaking on. Appeal from County Court Proper.</p> <p>3. Where an appeal from a judgment of the County Court, disallowing a claim against an estate, was taken in good faith, and) the insufficiency of the undertaking, which was limited to a. specified sum, was the result of a mistake, it was proper for the-Circuit Court in view of Section 550, subdivision 4, Or. L., despite-the filing of a motion to dismiss the appeal, to allow thé filing of an amended undertaking complying with Section 551,</p> <p>Executors and Administrators — Facts Constituting Claim Against-Estate Need not be Averred With Particularity Required in. Complaint.</p> <p>4. Although a verified claim against the estate of a deeedent, takes the place of a complaint, the facts constituting the claim need not be stated with the degree of particularity required in a. complaint filed in an action at law.</p> <p>Executors and Administrators — A Claimant must Recover upon the-Claim as Presented.</p> <p>5. One making claim. against the estate of a decedent must recover, if, at all, upon the claim as presented.</p> <p>Partnership — -Whether a Partnership Exists is Question for the-Court.</p> <p>6. Where the facts are undisputed the question whether a partnership exists is one of law for the court.</p> <p>Partnership — Person Receiving Money for Automobile Which wad not Delivered Held Agent of, Instead of Partner of, Decedent.</p> <p>7. One who received from claimant money for an automobilewhieh .was never delivered held the agent of, instead of the partner-of, decedent; it appearing that such person had no interest in the-profits, but was employed as agent receiving portion of the profits as compensation for his services.</p> <p>Executors and Administrators — Recovery Could be had Against. Estate, on Claim of Liability as Partner, on Evidence that Decedent was Liable as Principal.</p> <p>8. In a proceeding against the estate of a deeedent on account of money paid for an automobile, whieh was never delivered, where the evidence showed the liability of deeedent as principal, it appearing that the one who received the money was his agent,, recovery could be had under the verified claim, which alleged a partnership between decedent and the agent receiving the money, the claim in effect alleging that claimant made a contract for the purchase of an automobile, and that the agent received the money, etc.</p> <p>Appeal and Error — Incorrect Instruction Harmless, "Where Correct Result was Reached,</p> <p>9. Where the estate of decodent was in any event liable as principal, the giving of an ineorreet instruction, which predicated liability on the theory that decedent was a partner with the one who in fact was his agent, was harmless.</p> <p>Appeal and Error — Exclusion of Evidence Harmless, if Erroneous.</p> <p>10. In a proceeding against the estate of the decedent on account of money paid for an automobile which was not delivered, where the verified claim alleged that a relation of partnership existed between decedent and his agent who received .the money, held that, where claimant had testified that he had previously begun suit against agent, the exelusion of a complaint, alleging that agent was doing business under the name under which decedent did business, was harmless.</p> <p>Witnesses — Restriction of Cross-examination, Relating to Immaterial Matters Held not Error.</p> <p>11. Where claimant and his wife both testified that she lent him the money which he paid to decedent’s agent, it was immaterial whether claimant .repaid his wife or not, for in no event could she recover, and hence the restriction of her cross-examination on the question of repayment by claimant was proper.</p>

From Lake: George G. Bingham, Judge. In Bane. This proceeding involves a claim presented to and rejected by the administrators of an estate. H. E. Kelty is a regularly licensed physician and surgeon and resides in Lakeview. Johnnie B. Fisher and George W. Syron were half-brothers and they resided near Adel and about 32 miles from Lakeview.

From Lake: George G. Bingham;, Judge. In Bane. H. E. Kelty, a physician and surgeon, presented to Clay T. Fisher and S. O. Cressler, as administrators of the estate of George Syron, deceased, a claim for $300 for medical services rendered to Syron during his last sickness.

From Union: J. W. Knowles, Judge. In Banc. On June 10,1920, the defendant was indicted by the grand jury of Union County, charged with the crime of possessing intoxicating liquor, committed as follows : “The said Ward Smith, on the thirtieth day of April, 1920, in the county of Union, and State of Oregon, then and there being, did wrongfully have in his possession and possess, intoxicating liquor, in the amount of five gallons, all contrary to the statutes, etc.” To this…

From Multnomah.: Robert G-. Morrow, Judge. Department 2. This is an action to recover the sum of $7,500,, loaned by plaintiff, and evidenced by certain promissory notes. The parties waived a jury, and the cause was tried by the court. From a judgment in favor of plaintiff, defendants appeal, assigning errors. The ‘ following facts are, in substance, averred in the complaint.

From Multnomah: Robert Gr. Morrow, Judge. Department 2. On May 10, 1919, the plaintiff, Scandinavian-American Bank, commenced an action against defendant, Wentworth Lumber Company, upon a promissory note for $1,300, and to recover a balance of about $250 on a bill of exchange. In January, 1920, plaintiff dismissed the action on a note for $1,300.

<p>Appeal and Error — Order Sustaining Demurrers and Striking Part® of Answer not Appealable.</p> <p>1. Under Section 548, Or. L., authorizing appeals from orders which affect a substantial right and in effect determine the action or suit so as to prevent a judgment or decree, an order, sustaining: demurrers to separate answers and striking parts of another separate answer, is not appealable, where issues remain to be determined before the rendition of a final judgment, especially in view of Section 558, authorizing the review of intermediate orders on appeal from the final judgment.</p>

Prom Umatilla: Gilbert W. Phelps, Judge. In Banc. On September 10, 1920, George B. Carmichael filed in the Circuit Court of the State of Oregon in and for Umatilla County a suit for divorce, against Mabel E. Carmichael, his wife. On that date the defendant wife was served with process and acknowledged service of the same, and immediately thereafter appeared in the suit by her attorney, who filed a demurrer to the complaint. The cause was heard on the same date.

From Multnomah: George Tazwell, Judge. In Bane. Robert D. Inman died testate on April 27, 1920. The will was admitted to probate and Johan Poulsen, George W. Thatcher and H. B. Yan Duzer were appointed executors. Under date of December 16, 1920, the executors filed a petition asking the court to determine the amount of the inheritance tax to be paid to the State of Oregon.

From Crook: T. E. J. Duffy, Judge. Department 2. The defendants are husband and wife and the parents of a daughter named Evelyn, who in December, 1915, in Crook County, Oregon, married the plaintiff and they lived together at different places until about July 5, 1919, when she left him and went to the home of her parents.

From Clatsop: James A. Eakin, Judge. In Bano. This is an action to recover damages which the plaintiff claims to have sustained by reason of an error committed by the defendant through mistake, in materially understating in its specifications the amount of embankment required to complete an improvement upon a street of defendant city, by reason of which misrepresentation the plaintiff was induced to bid a lower sum for completing the improvement and to expend a greater sum…

From Harney: Dalton Biggs, Judge. In Banc. These cases were consolidated for trial, and one decree entered in both cases in favor of plaintiffs, who being dissatisfied with the findings and decree have appealed.

From Multnomah: George G. Bingham, Judge. Department 1. The Portland Pulley Company, the plaintiff, is a corporation; and Herbert J. Breeze and Lother H. Karau, the defendants, are partners doing business under the firm name of Breeze-Karau Manufacturing Company. The plaintiff is engaged in the woodworking business and it maintains a factory for that purpose.

From Jackson: F. M. Calkins, Judge. Department 1. John Denny and H. F. Hogg are commission merchants and partners doing business under the firm name of Denny & Company. The plaintiffs have their main office in Chicag’o, but they have agents at different points in the United States, including Medford, Oregon. George Wolff, the defendant, is an orchardist engaged in raising pears and apples.

From Multnomah.: Robert Gr. Morrow, Judge. Department 1. This is an appeal from a decree of the Circuit Court of Multnomah County. Owing to the diversity of interests involved a statement of the issues is somewhat difficult, but is substantially as follows: “The City of Rainier undertook to improve certain streets and created two improvement districts.

From Multnomah: John McCourt, Judge. Department 2. R. M. Homschuch is the mother and the duly appointed guardian ad litem of Vivian Homschuch, a minor seven years of age. The defendant, the Southern Pacific Company, is a Kentucky corporation and the owner of a line of railway between Witch-Hazel and Reedville in Washington County, which it operates by electrical power. The defendant Sweeney was its motorman. Louise Schneider was the driver of an automobile.

From Multnomah: John McCourt, Judge. In Bane. The legislative assembly of 1921 passed an act known as tbe “Local Budget Law,” which was approved February 18th of that year. At the same session it also passed an act known as the “Tax Supervising and Conservation Commission Act,” which was approved February 23d. Both acts contemplate the formation of a budget for the purposes of taxation in municipalities.

From Sherman: D. E. Parker, Judge. In Banc. This case involves the construction of paragraphs Three and Four of the will of John D. McDermid, deceased, reading as follows: “Three: After the payment of my just debts and funeral expenses as aforesaid, including expenses for monument and including necessary expenses to be incurred in the administration of my estate, I give, devise and bequeath all of the rest and remainder of the personal property of which I may die possessed,…

<p>Appeal and Error — On Conflicting Evidence, Jury must Decide What was Said by One Sought to be Held liable for Goods Intended for Another. ,</p> <p>1. Where the evidence conflicted as to whether defendant’s promise to pay for goods sold his son-in-law applied only to one or more automobiles, or whether it also included automobile accessories, it was the province of the jury to decide what language was used.</p> <p>Frauds, Statute of — Verbal Collateral Promise to Pay for Goods Sold Another cannot be Enforced.</p> <p>2. A collateral promise to pay for goods furnished another eannot be enforced, when not in writing.</p> <p>Frauds, Statute of — Promise is Original, and not Collateral, When Goods Sold on Promisor’s Credit Exclusively.</p> <p>3. If a sale of goods to be furnished to defendant’s son-in-law was on defendant’s credit exclusively, and not on the son-in-law’s credit, defendant’s promise to pay therefor was original, and not collateral.</p> <p>Frauds, Statute of — Griginal Promise to Pay for Goods to be Delivered to Another not a Promise to Answer for Another’s Debt.</p> <p>4. If one, by an original and not ¡by a collateral promise, agrees to pay for goods to be delivered to another, then he and not the person to whom the goods ‘are to' be delivered, is liable, though the goods were actually received by the other, and the promise to pay is not a promise to answer for another’s debt.</p> <p>Frauds, Statute of — Promise is Collateral, and must be in Writing, When Another is Liable for the Debt.</p> <p>5., Where one promises to pay for goods to be furnished to another, if the one to whom the goods are to be furnished is liable for the debt, then the promise is a promise to answer for the debt of another, and must be in writing, under Section 808, Or. L.</p> <p>Frauds, Statute of — When Language Ambiguous, It is Question for Jury 'Whether Promise Original or Collateral.</p> <p>6. If the language used by the parties was ambiguous, it becomes a question of fact, for the jury to determine under appropriate instruetions, whether a promise to pay for goods to be furnished to another was original or collateral, and the jury should be informed what would constitute an. original promise and what a collateral promise.</p> <p>2. When promises to pay debt of another need and when need not be in writing, see note in 95 Am. Dec. ‘251.</p> <p>5. On contemporary promise of one person to pay where benefit inures to another as a promise to answer for the default of another within the statute of frauds, see notes in 15 L. R. A. (N. S.) 215, 226; 3‘2 L. R, A. (N. S.) 598.</p> <p>6. Original or collateral nature of oral promise to answer for debt of another as a question of law or fact, see notes in 9 Ann, Cas, 896: Ann. Cas, 1915B, 257.</p> <p>Frauds, Statute of — Promise is Collateral, if Any Credit Given to Third Party.</p> <p>7. A promise to pay for goods to be furnished to a third party is collateral, and must be in writing, if any credit be given to the third party, though the seller principally depends for payment on the promisor.</p> <p>Frauds, Statute of — Whether Promise Original or Collateral is Question of Intention.</p> <p>8. In determining whether a promise to pay for goods to be furnished to a third party is original or collateral, the intention of the parties must govern; but the intention should be ascertained from the words used in making the promise, the situation of the parties, and all the circumstances concerning the transaction.</p> <p>Frauds, Statute of — Evidence Held to Show Credit Given to Third Party, and Hence That Promise was Collateral.</p> <p>9. In an action on defendant’s alleged promise to pay for automobiles and accessories to be furnished his son-in-law, evidence held to show that credit was in part given to the son-in-law, and hence that defendant’s promise was collateral, and not original.</p> <p>ON PETITION POE REHEARING.</p> <p>Frauds, Statute of — Question Raised by Exceptions at Trial.</p> <p>10. Appellant raised the question of the statute of frauds by excepting to instructions given by trial court and also by excepting to the court’s refusal to give certain instructions.</p> <p>Notice of Appeal- — Service not Required on One not Injuriously Affected by the Judgment.</p> <p>11. A reversal of the judgment would not injuriously affect Bidler, and consequently failure to sea-ve him with notiee of appeal does not prevent the Supreme Court from acquiring jurisdiction.</p> <p>8. Intention of parties as determining whether promise to answer for debt of -another is original or collateral, see note in Ann. Cas. 1914A, 490.</p>

<p>Criminal Law — Court’s Discretion in Refusing Change of Venue not to be Disturbed Save for Abuse.</p> <p>1. Where both sides of the question of change of venue for local prejudice were supported by reputable witnesses, the refusal was within the discretion of the court, and, unless abused, ruling would not be disturbed.</p> <p>Jury — Overruling Challenge is Waived if Juror is Accepted.</p> <p>2. Error in refusing to allow a challenge to a juror for cause is Waived if the party objecting after exhausting his peremptory challenges accepts without objection other jurors to complete the panel.</p> <p>Criminal Law — Grand Jurors may Testify to Admissions by Defendant Before Grand Jury.</p> <p>3. Members of the grand jury may testify as to admissions made by defendants while witnesses before that body.</p> <p>Criminal Law — Court’s Finding on Preliminary Question of Voluntary Character of Admissions is not Binding on Jury.</p> <p>4. Where the preliminary evidence as to the voluntary character of admissions by defendants was conflicting, court’s ruling finding it voluntary in character was not absolutely binding on the jury, but the ultimate decision was for the jury.</p> <p>Criminal Law — Appellate Court Will not Review Conflicting Evidence on Preliminary Question of Fact.</p> <p>5. The Supreme Court will not review conflicting evidence on the preliminary question as to the voluntary character of admissions by the defendant.</p> <p>Criminal Law — Admissions by Defendants Before Grand Jury Held Voluntary and Admissible.</p> <p>6. Evidence "held to show that admissions by defendants as witnesses before the grand jury were of a voluntary character and admissible in evidence against them.</p> <p>Criminal Law — An Admission may Sufficiently Corroborate Accomplice Testimony.</p> <p>7. An admission of a defendant may be sufficient corroboration of the testimony of an accomplice.</p> <p>Criminal Law — Evidence of Assaults Held Admissible as Part of the Res Gestae.</p> <p>8. In a prosecution of defendants for tilling the sheriff while escaping from jail, evidence that they first assaulted and bound one of his deputies and later assaulted the sheriff and another deputy, during which latter struggle the _ sheriff was shot, was part of the res gestae, though the assaults were distinct offenses.</p> <p>7. Confession of defendant, as sufficient corroboration of accomplice, see note in Ann. Cas. 19160, 579.</p> <p>Criminal Law — Extent of “Corroboration” of Accomplice Testimony Required, Stated.</p> <p>9. “Corroboration” of accomplice testimony does not mean separate and complete proof of a crime, 'but only that there should be some evidence of material facts outside the testimony of the accomplice tending to connect defendant with commission of offense.</p> <p>Criminal Law — Accomplice Testimony Held Sufficiently Corroborated by Circumstances Aside from Admissions.</p> <p>10. In prosecution of defendants for the killing of a sheriff in escaping from jail, evidence of circumstances held to sufficiently corroborate the testimony of an accomplice aside from admissions of defendants before the grand jury.</p> <p>Criminal Law — Accomplice Testimony may be Sufficiently Corroborated by Circumstantial Evidence.</p> <p>11. Accomplice testimony may be sufficiently corroborated by circumstantial evidence.</p> <p>Criminal Law — Motion for Nonsuit is not a Known Method of Questioning Submission of Evidence to Jury.</p> <p>12. A motion for nonsuit is not a recognized method in criminal cases of questioning the sufficiency of the evidence for submission to the jury, but the court may in its discretion treat such a motion as a motion for a directed verdict.</p> <p>Criminal Law — Rule Stated as to When Verdict will be Directed.</p> <p>13. A motion directing a verdict in a criminal ease may be sustained only when it is a total failure of proof or when the evidence is so weak that a verdict based upon it will be manifestly the result of passion, prejudice or partiality.</p> <p>Witnesses — Defendant Testifying in Denial of Statements Made by Him may be Cross-questioned as to What Statements He Did Make.</p> <p>14. Where, in a prosecution for killing a sheriff in escaping from jail, defendant took the stand in his own behalf and testified in denial of alleged statements made by him before the grand jury to the effect that he had agreed with others that if necessary they would “shoot their way out,” the court properly permitted the state to cross-examine him at length as to what he actually did say before the grand jury, both with a view to testing his memory and veracity and to bring out the whole of the conversation or transaction.</p> <p>9. For authorities passing on the question of corroborating accomplices in trials for crime, see notes in 71 Am. Dec. 671; 34 Am. Rep. 408; 9® Am. St. Rep. 158; 41 L. R. A. (N. S.) 954.</p> <p>13. Right of court to direct verdict of guilty where plea of “not guilty” has been interposed, see notes in 8 Aim. Gas. 808; Ann. Cas. 1916Á, 11241.</p> <p>Witnesses — Defendants Testifying may be Cross-examined as to Former Conviction.</p> <p>15. Defendants testifying in their own behalf might be cross-examined by the state as to whether or not they had ever been convicted of crime.</p> <p>Criminal Law — Witnesses—Cross-examination of Accomplice as to Other Offense Held Permissible to Show Motive.</p> <p>1®. In prosecution of defendants for killing a sheriff in escaping from jail, an accomplice, testifying, might be cross-examined as to the offense for which he and one of the defendants had been arrested, not as impeachment of the accomplice, but to show a motive for the killing.</p> <p>Criminal Law — Instruction as to Defendants Aiding in a Homicide Held not to Invade the Province of the Jury.</p> <p>17. In a prosecution for killing a sheriff in escaping from jail, a requested instruction, that if the jury had a reasonable doubt as to whether an accomplice killed deceased because of personal grudge or enmity, or whether he killed him pursuant to conspiracy to kill to break jail, provided they also find that there was such a conspiracy, they must resolve such reasonable doubt in favor of the defendant, was properly modified by adding, “unless you further find from the evidence beyond a reasonable doubt that the defendants were then aiding, abetting or encouraging said accomplice in the killing of deceased”; modification not invading province of the jury.</p> <p>Constitutional Law — Special Election for Submission of Amendment may be Called on the Same Day as the General Primary Election.</p> <p>18. Under Constitution, Article XVII, authorizing the legislature to submit the constitutional amendment to vote, held, that the special election might be called on the same day as the general primary election.</p> <p>Statutes — Enactment may be Made to Take Effect on Contingency of Adoption of Constitutional Amendment Authorizing It.</p> <p>19. Laws of 1929, page 46, providing for the execution of the penalty for murder in the first degree, was not invalid because its taking effect was made dependent on the adoption by the people of the constitutional amendment authorizing such penalty.</p> <p>Criminal Law — Affidavit for New Trial for Newly Discovered Evidence Held Insufficient.</p> <p>20. In a prosecution of defendants for killing a sheriff in escaping from jail, an affidavit for new trial for newly discovered evidence, stating that witness would testify he was in jail with defendants and that there was no agreement to shoot any person, not stating the source of affiant’s information nor the whereabouts of the witness or whether his attendance could probably be secured, was insufficient.</p>

From Umatilla: Gilbert W. Phelps, Judge. In Bane. The defendants were convicted in the Circuit Court of Umatilla County of the crime of murder in the first degree, and sentenced to death, from which judgment they appealed to this court, where the judgment was affirmed. While a petition for rehearing was pending they attempted to sue out a writ of error coram nobis in the Circuit Court of Umatilla County, where upon a hearing the proceeding was dismissed.

From Clatsop: J. A. Bakin, Judge. Department 2. This is an action brought on a public improvement bond, for materials furnished in the performance of road work for Clatsop County. The cause was tried by the court without the intervention of a jury. Findings of fact were made, and a judgment rendered in favor of plaintiff.

From Clatsop: James A. Eakin, Judge. Department 2. The substance of the complaint is, that in September, 1918, the plaintiff sold to the defendants upwards of two million feet of spruce logs at certain prices; that the defendants took possession of them and rived 97,320 feet thereof, on account of which the sum of $3,406.20 became due to the plaintiff; that at the time of the sale the defendants had a contract with the United States government for furnishing spruce aeroplane…

<p>Appeal and Error — Finding of Fact by Trial Court not Reviewable.</p> <p>1. Where there is some evidence tending to sustain a finding of fact by trial court, the appellate court is precluded from inquiring into the comparative weight of evidence.</p> <p>Infants — Minor Held not Entitled to Disaffirm Sale of Automobile Where He cannot Put Seller in Statu Quo.</p> <p>2. Where a minor purchased an automobile, paying part down</p> <p>and agreeing to pay balance in installments, but after installments were paid refused to make additional payments, and on account of his misuse of the automobile the depredation was greater than the payments made, he cannot disaffirm contract and recover money paid without compensating defendant for depreciation resulting from his misuse and abuse. '</p> <p>2. When disaffirmance of contract by infant must be accompanied by restoration of consideration, see notes in 62 Am. Dec. 734; 46 Am. Rep. 317.</p> <p>Right to allowance for use or depreciation of subject matter, in an action against seller to recover back purchase price upon disaffirmance of infant’s contract, see note in 11 L. R. A. 491.</p>

From Tillamook: George E. Baglby, Judge. Department 1. September 30,1919, Ophelia Paquet filed a petition in the County Court of Tillamook County to be appointed as administratrix of the estate of Fred Paquet, in which she alleges that he died in that county on September 27, 1919, of which he was then a resident and left personal property there of the value of $500 and real property of the probable value of $12,000; that the petitioner is his widow; that she resides in…

From Multnomah: H. H. Belt, Judge. Department 1. The respondent, Della Jones, and the appellant, Clara Waring, are sisters.

From Tillamook: George R. Bagley, Judge. In Banc. The defendant was tried and convicted before a jury in the Justice’s Court of Tillamook County, for the crime of unlawful possession of intoxicating liquor.

<p>Costs — Under Circumstances, Allowed Neither Party on Appeal, Where Case had Become Moot.</p> <p>1. Where, on appeal by plaintiff from a decree in a suit to foreclose a lien for labor on lumber, in which defendant prayed that the suit be dismissed and the decree of foreclosure was for a less sum than prayed, and no attorney’s fee was allowed, the court is advised that, plaintiff having bought the lumber pending the appeal at a sale under execution of a third party against defendant, the only question to be decided is that of costs on appeal, held that, most of the expenses of appeal having been incurred by plaintiff, and those incurred by defendant being inconsiderable, neither party should be allowed costs on affirmance.</p>

From Washington: George E. Bagley, Judge. Department 2. This is a lawsuit carried on by the heirs at law of Benjamin Scholfield, deceased.

<p>Constitutional Law — Waters and Watercourses — Raising or Lowering of Maintenance Fee Charged Settler on Reclaimed Desert Land Would Impair Contract.</p> <p>1. The right of a settler under contract with an irrigation company on reclaimed and irrigated desert lands acquired by the state from the United States under the Carey Act (U. S. Comp. Stats., § 4685) to the use of water thereon under the state act of February 28, 1901 (Laws 1901, p. 378),'is contingent on his contract to purchase and acquire title to the land, the annual maintenance fee being one of the considerations entering into the agreed price of the land, so that to change the maintenance fee either by raising or lowering it would increase or decrease the agreed price, and impair the obligation of a contract to buy and sell real estate with an appurtenant water right.</p> <p>Waters and Watercourses — Irrigation Company not a “Public Utility” Subject to Jurisdiction of Public Service Commission.</p> <p>2. In making contract with settlers on reclaimed desert lands acquired by the state from the United States under the Carey Act (IT. S. Comp. Stats., § 4685), irrigation company held not a public utility as defined by Section 6030, Or. L., the use of the irrigation waters furnished by the company to the settlers under their contracts not being a public use to vest jurisdiction of the matter of increasing the maintenance fee charged the settlers by the company in the Public Service Commission under Sections 5777, 5788.</p> <p>2. On power of Public Service Commission to increase franchise rates, see note in 9 A. L. R. 1165.</p> <p>Effect of contract with patrons to preclude regulation of rates of publie service corporations is considered in a note in L. R. A. 1915C, 282.</p>

From Harney: Dalton Biggs, Judge. In Banc. The plaintiffs brought this proceeding to contest an election held in Harney County to determine whether or not an irrigation district to be known as “Harney Basin Irrigation District No. 1” should be established. The Circuit Court sustained a general demurrer to their petition and, as the plaintiffs refused to plead further, dismissed the proceeding. The judgment was entered October 14, 1920.

From Malheur: Dalton Biggs, Judge. In Banc. The original complaint in this cause was against Ivers, Boggs, Dolan and Gombert. A demurrer to that pleading was sustained and the plaintiff amended, making only Ivers and Boggs defendants.

<p>Appeal and Error — Exceptions not Necessary to Present Question Whether Facts Support Conclusions.</p> <p>1. Where the question before the Supreme Court is whether the conclusions of law and the judgment are proper deductions from the facts found by the trial court, a bill of exceptions is not necessary, in view of Section 172, Or. L.</p> <p>Municipal Corporations — Procedure, Calling for Payment by Assessments Only, Could not be Departed from.</p> <p>2. Having embarked on a street improvement proceeding under •the authority of an ordinance prescribing that payment for the work should be derived only from assessments on adjacent property, the town could not ignore the ordinance, or depart from it except by another ordinance.</p> <p>Municipal Corporations — Assessment Void Where Town Required Bidders to Furnish Their Own Specifications.</p> <p>3. Where the town of Milwaukie proceeded by ordinance under its charter (Sections 47-53) to improve a street by grading and^ paving, payment to be derived only from assessments on the adjacent property, but ultimately abandoned its established plans and specifications on which bids had been invited, and required each bidder to furnish his own specifications, so that the only competition between bidders was that of price, and there was no direct competition on the basis of fixed specifications as contemplated by law, the proceeding became void, and the contract made with the lowest bidder did not give rise to a cause of action in its favor.</p> <p>ON REHEARING.</p> <p>Municipal Corporations — City is not Liable for Failure to Make Valid Assessment to Fay for Special Improvement, Where Contractor has No Valid Contract for the Improvement.</p> <p>4. Where a contract for street improvement provided, pursuant to the city charter, that payment for the improvement was to be from a special fund to be raised by assessment on the abutting property, and that the city should not be required to pay from any other fund, except in case the city failed to make a valid assessment, the city was not liable thereunder for failure to make a valid assessment to pay for the improvement, where the contract itself was void ab initio, because not let to the lowest bidder as required by the charter.</p> <p>4. Implied Lability of municipality under contract let contrary to statute requiring competitive bidding, see note in Ann. Gas. 1917A, 1263.</p>

<p>From Crook: T. E. J. Duffy, Judge.</p> <p>In Banc.</p>

From Clackamas: J. TJ. Campbell, Judge. Department 1. This is a suit for a money decree and to foreclose a lien on corporate stock pledged as security for a guaranty contained in a written contract. The defendant prayed for a cancellation of the contract on the ground that it did not conform with the agreement actually made and for the reason that the signature of the defendant had been procured by fraudulent representations.

From Multnomah: J. P. Kavanatjgh, Judge. In Banc. Joe Bottig, an employee of Fred Polsky, was injured while loading empty barrels in a boxcar. Bottig sued Polsky and recovered a verdict and judgment for $1,000. On motion of the defendant the trial court set aside the verdict and judgment, and granted a new trial. The plaintiff appealed.

<p>Damages — Instruction not Erroneous as Allowing Recovery for Possible Injury.</p> <p>1. In an action for personal injuries, held, that instructions were not erroneous as permitting the jury to compensate plaintiff for “possible permanent injuries.”</p> <p>Appeal and Error — No Complaint of Submission of Permanent Injuries to Jury in Absence of Objection or Bequest to Withdraw Question.</p> <p>2. In an action for personal injuries, held, that defendant could not complain of instruction authorizing recovery for permanent injury, in view of absence of an objection to the submission, or any request on behalf of defendant to withdraw the question.</p> <p>Appeal and Error — Submission of Permanent Injuries Harmless in View of Verdict.</p> <p>3. Where verdict did not show that jury gave damages for permanent injuries, error in submitting that question to jury was harmless.</p> <p>Damages — Fifteen Hundred Dollars not Excessive for Injury to Leg.</p> <p>4. A verdict for $1,500 held not excessive for painful injuries to leg causing plaintiff to be confined in bed and wheel-ehair in hospital for three weeks and requiring use of crutches in walking for some time thereafter.</p> <p>Damages — Reasonable Probability of Permanent Injury Submitted to Jury.</p> <p>5. In a personal injury action, if from the testimony it can be said that there is a reasonable probability of an injury being permanent, then the question may properly be submitted to the jury.</p>

<p>Carriers — A Complaint for Injuries to Passenger Boarding Streetcar Held Sufficient.</p> <p>1. In an action for injury to a passenger sustained while boarding a street-car, the complaint alleging that “while plaintiff was boarding one of said ears defendant carelessly and negligently started the same, and as a direct and proximate result of said negligent aet of defendant plaintiff was thrown under the wheels of said car,” sustaining specified injuries, held sufficient on motion for nonsuit to charge negligence, as against objection that it does not show facts sufficient to charge defendant, and that it was a mere conclusion to say that the ear was started negligently.</p> <p>1. On liability of street railway company for negligence in starting street-car before passenger is seated, see notes in Ann. Gas. 1912D, 582; 42 Ii. R. A. 294; 4 L. R. A. (N. S.) 558; L. R. A. 1915A, 797.</p> <p>Carriers — Pact of Accident to Passenger Boarding Car Claimed to have Been Prematurely Started Held Sufficient to Take Case to Jury.</p> <p>2. In an action for injury to passenger sustained while boarding a street-car, claimed to have been prematurely started, the fact of the accident held sufficient, on motion for nonsuit, to take the ease to the jury on the question of whether the ear employees were at fault.</p> <p>Carriers — Complaint Held to Show Relationship of Passenger and Carrier.</p> <p>3. Complaint alleging that plaintiff was injured while boarding one of defendant’s street-cars whieh had stopped to take on passengers, as a result of defendant’s negligence in starting the car, without directly alleging plaintiff was a passenger and defendant a common carrier, held sufficient on motion for nonsuit to show the relationship of passenger and carrier.</p> <p>Appeal and Error — Misconduct of Counsel in Argument to Jury Held not Ground for Reversal in Absence of Request for Further Action by Court.</p> <p>4. In action against street railway for injuries to passenger, misconduct of plaintiff’s counsel in stating, during argument to jury without evidence thereof, that the railway company’s surgeons had neglected the passenger and had improperly cut off her leg and arm, held not ground for reversal, where court sustained objection thereto and directed jury not to consider statement, in absence of request for additional relief.</p> <p>Trial — Instruction Directing Jurors to Consider Their Experience as Men of Affairs Held Proper.</p> <p>5. In an action in whieh jurors had been carefully instructed as to the preponderance of the evidence, contradictory evidence, presumption as to witness speaking the truth, and as to the jurors being exclusive judges of the credibility of witnesses, instruction directing jury to “bring to your assistance your experience as men of affairs” held proper, since such experience may be considered in passing on. credibility of witnesses'.</p> <p>Trial — Jurors’ Personal Knowledge of Probative Fact not Considered in Deciding Case.</p> <p>6. Under Section 868, Subdivision 1, Or. L., jurors must act with legal discretion and in subordination to the rules of evidence, and must not consider their personal knowledge of probative facts in deciding the case.</p> <p>■6. On right of jurors to act on their own knowledge, see notes in 31 L. R. A. 489 and 37 L. R. A. (ST. S.) 790, 793.</p> <p>Damages — Not Recoverable for Mental Anguish Alone.</p> <p>7. Mere mental anguish, unaccompanied by physical injuries, is not ground for damages.</p> <p>Damages — Recoverable for Mental Anguish Directly Caused by Injury.</p> <p>8. Physically injured person may recover for mental anguish which is the direct, natural, and proximate result of the injury.</p> <p>Damages — Instruction as to Mental Anguish Approved.</p> <p>9. Instruction allowing recovery for physical pain and mental anguish which plaintiff “has endured, or will in the future be obliged to endure, all as a direct natural and proximate result of the injury,” held proper, as against the objection that it allowed recovery for future mental anguish; collateral distress not being included.</p> <p>8. On mental suffering arising from contemplation of disfigurement or mutilation as element of damages for personal injuries, see notes in 15 L. R. A. (N. S.) 775; L. R. A. 1916B, 898.</p>

<p>Carriers — Patrons Bound by Bates in Effect Time Interstate Shipment is Made.</p> <p>1. Under Act Cong. Feb. 4, 1887, Section 6, as amended by Acts of March 2, 1889, Section 1, andi June 29, 1906, Section 2 (U. S. Comp. Stats., § 8569), all patrons of a common carrier are bound by the rates in effeet at the time an interstate shipment is made.</p> <p>Carriers — Shipper Bound by Existing Tariff, and, having Paid Bate in Force, cannot Counterclaim as for Overcharge. '</p> <p>2. Defendant shipper was bound to know the existing tariff of a railroad company, being charged with knowledge that the'railroad could not charge less than or more than or any rate different from that prescribed in the current schedule; and, having paid the rate in force at the particular time, the shipper is bound thereby, and cannot counterclaim as for an overcharge when sued for unpaid balances of freight.</p> <p>Carriers — Shipper’s Charges for Sideboards not a Proper Counterclaim When Sued for Balance of Freight.</p> <p>3. A shipper’s charges against the railroad for lumber furnished for sideboards in transporting the shipment did not constitute a proper counterclaim in favor of the shipper, when sued for an unpaid balance of freight, because it was not specified in the schedule of rates which the railroad had filed.</p> <p>ON PETITION FOB REHEARING.</p> <p>Stipulations — Party not Permitted to Ignore Stipulations.</p> <p>4. Where defendant, in an action by carrier to recover alleged balance due on freight and demurrage, stipulated that the freight had been computed according to tariff filed with the Interstate Commerce Commission, it cannot be allowed to ignore such stipulation and undertake to show a 'different computation.</p>

<p>Costs — Plaintiff not Entitled to Costs Where Defendants, Relying on lácense, Admit His Title and Right of Possession.</p> <p>1. Under Section 562, subdivision 1, Or. L., allowing costs in an action where a claim of title or right to possession of real property arises on the pleadings, where defendants, in an action for trespass, relied on a license from plaintiff and his predecessors not involving title or right to possession, which their answers admitted were in plaintiff, the latter was not entitled to costs, where the amount recovered was less than $50.</p> <p>Trespass — License Justification.</p> <p>2-, Where a licensor sues in trespass, the licensee may, before revocation, justify under the license.</p> <p>Appeal and Error — Overruling of Objection to Question Evaded by Plaintiff With Fling at Defendant not Harmful Error.</p> <p>3. Where plaintiff, in an action for trespass, instead of answering a question on cross-examination as to whether he believed defendant went on the land by mistake after he had been there for 25 or 30 years, evaded it and took a fling at defendant by stating, “He pastured another man’s land up there for the last 15 years,” the overruling of an objection to such question was not harmful.</p> <p>Appeal and Error — Any Error in Question Cured by Answer That Witness Did not Remember.</p> <p>4. In an action for trespass, where defendants pleaded a license from plaintiff and his predecessors in title, overruling of objection to question as to who was in possession at a time prior to plaintiff’s purchase, if erroneous, was harmless where the witness answered that he did not remember.</p> <p>Trespass — Evidence of Occupancy Held Admissible to Show License.</p> <p>5. In an action for trespass, where defendants pleadedi a license from plaintiff and his predecessors in title, testimony as to who was in possession, and as to defendants’ possession prior to plaintiff’s ownership, was admissible to establish license, and it was proper to instruct the jury to consider such testimony on the question of consent, and that, though occupancy prior to the conveyance to plaintiff was not a defense, the knowledge of plaintiff and his predecessors and their failure to object constituted some evidence of consent.</p>

<p>Specific Performance — Exercise of Discretion Depends on Showing of Clear, Just, Definite, Reasonable, and Mutual Binding Agreement.</p> <p>1. Before an equity court may exercise its discretion to enforce specifically a contract to devise, the cause must come before it with proper allegations of faet supported by proof of a binding agreement that it is clear, just, definite, reasonable, and mutual in all its obligations.</p> <p>Specific Performance — There must be Adequate Proof of Contract to Devise and Showing of Part Performance Making a Fraud on Plaintiff if not Completed.</p> <p>2. A contract to devise is within the statute of frauds, and to obtain its specific performance there must be adequate proof to establish the contract, accompanied by such evidence of part performance as will make it a fraud upon plaintiff not to complete the contract.</p> <p>2. On specific performance or oral contract to devise or convey land in consideration of performing services or furnishing support, where no possession taken or improvements made, see notes in Ann, Cas. 1914A, 399; Ann. Cas. 1918A, 1191; 15 L. R. A. (N. S.) 466; 38 L. R. A. (1ST. S.) 752.</p> <p>Specific Performance — Equity may Seize Property Which Testator Agreed to Will to Plaintiff, After Testator’s Death, and Fasten Trust upon it.</p> <p>3. Where a party had made a just and valid eontraet to devise property hy -will -which Oías been clearly proved, but breached by promisor, equity will in a proper case specifically enforce it after the promisor’s death by seizing the property which was the subject of the agreement and fastening a trust upon it.</p> <p>Specific Performance — Complaint Failing to Allege Possession Under Agreement to Devise, or an Exception Making Such Allegation Unnecessary, is Insufficient.</p> <p>4. A complaint to enforce specifically a parol contract to devise is insufficient where it does not allege possession under the contract, nor aver facts showing the ease to come under the exception of an agreement to devise for services of such a nature or character that it is impossible to estimate their value to the promisor by any pecuniary standard, and where there was no intention to measure their value by such standard.</p>

<p>From Clackamas: J. TJ. Campbell, Judge.</p> <p>Department 1.</p>

From Yamhill: H. H. Belt, Judge. In Banc. This is a suit to restrain the defendants from assessing plaintiffs’ property for street improvement purposes. The plaintiffs own Lot 2, Block 8, Deakin’s Addition to Newberg, no part of which abuts upon Garfield Street, but which is separated from that street by Lot 1 of the same block. The defendant City of Newberg, a municipal corporation, contracted to pave Garfield Street.

From Marion: George G. Bingham, Judge. Department 1. This is an action brought by the plaintiff on a note for $233. After denying everything in the complaint except as stated in the answer, the defendant contends that the note was given in part payment of the initial installment demanded by the plaintiff as part of the purchase price of a motor-truck.

From Tillamook; George B>. Bagley, Judge. Department 1. This is a suit brought by Catherine A. Long and A. G. Beals against Lee J. Tittle and his wife Jessie Tittle, A. M. Hare and John Simmons for the purpose of restraining the defendants from interfering with an alleged right to overflow a sawmill pond and for the further purpose of reforming two certain deeds.

From Clackamas: George E. Bagley, Judge. This is a suit for divorce by Marjorie Hawley against Willard Hawley, Jr. The original complaint was filed November 21, 1919, charging the defendant with many acts of cruel and inhuman treatment. On December 30, 1919, defendant filed his answer, containing a denial of all the alleged acts of cruelty, with a cross-complaint for divorce, alleging the cruel and inhuman treatment of defendant by plaintiff.

From Marion: George Bingham, Judge. In Banc. This is an appeal from an order denying plaintiff’s application for the issuance of a writ of review. On the twelfth day of July, 1921, P. Sustar, plaintiff, filed in the Circuit Court of the State of Oregon in and for Marion County his verified petition, and certified to by his attorney, seeking a writ of review.

From Clatsop: James A. Eakin, Judge. In Banc. The plaintiff commenced an action against the defendant for damages for breach of a contract, the substance of the complaint in which is, that the defendant hired the plaintiff as a member of the former’s fishing crew for the fishing season of 1919, agreeing to pay the plaintiff a share of the net proceeds of the season’s catch; and that the plaintiff entered upon the performance of the contract about May 25,1919, and continued…

<p>Evidence — Testimony That Note was to Become Binding Only if a Certain Payment Made Held Admissible.</p> <p>1. In an action on a note, evidence that it was manually delivered to the payee, but was not to become a binding obligation, unless the purchaser of defendant’s ranch made a certain payment to defendant for the payee’s benefit, held admissible.</p> <p>Evidence — Testimony of Want of Consideration Admissible.</p> <p>2. In an aetion on a note, evidence t-hat it was not to become a binding obligation, except on certain payments being made by a third party, held admissible as showing want of consideration.</p> <p>Evidence — Parol Evidence That Note is to Become Binding Only in ■ a Certain Event Admissible.</p> <p>3. Parol evidence is admissible to show that a negotiable note, absolute in form, although manually delivered to the payee, was not to become a binding obligation, except upon the happening of a certain future event, especially if such event affects the consideration, in view of Section 713, subdivision 2, Or. L., and Section 798, subdivision 3.</p> <p>1. On admissibility of parol evidence to show that a bill or note was delivered upon condition, see notes in 3 Ann. Cas. 560; 15 Ann. Cas. 669; Ann. Cas. 1912D, 1308; Ann. Cas. 1917D, 1049; 18 L. R. A. (N. S.) 288 and L. R. A. 19170, 306.</p>

<p>Judgment — Power to Open Default Within Court’s Legal Discretion.</p> <p>1. The discretion lodged in the court by Section 103, Or. L., to relieve from judgments by mistake or excusable neglect, is a legal one, to be exercised in furtherance of justice and in accordance with the rules of modern jurisprudence.</p> <p>1. Statutes authorizing vacation and setting aside of judgments when by default, see note in 58 Am. Dec. 392.</p> <p>The question as to whether neglect of counsel is to be imputed to party, under statute providing for relief from judgment taken by mistake, inadvertence, surprise or excusable neglect, is discussed in notes in 96 Am. St. Rep. 108; 27 L. R. A. (N. S.) 858.</p> <p>Judgment — Payment of Plaintiff’s Costs as Condition to Opening Default Held Proper.</p> <p>2. On motion to open a default judgment on the ground of a misunderstanding as to whether defendant’s attorney had been retained to appear, it was proper to require defendant to pay plaintiff’s costs to the date of the order as a condition to opening the default.</p> <p>Judgment — Undertaking to Pay Plaintiff’s Future Costs Proper as Condition to Opening Default.</p> <p>3. Requirement of an undertaking to pay any costs and disbursements that might thereafter be adjudged in favor of plaintiff held proper as a condition to granting relief.</p> <p>Judgment — Undertaking to Pay any Judgment Recovered Improper Condition to Opening Default.</p> <p>4. Requiring defendant to give an undertaking, with sureties, conditioned to pay any judgment that plaintiff might recover, held not a proper condition to setting aside a default judgment because of mistake or excusable neglect.</p> <p>2. Payment of costs as condition precedent to new trial under order opening default and granting new trial on payment of costs, see note in Ann. Cas. 1912B, 249.</p>

<p>Municipal Corporations — “Construction of Ordinances” Primarily Dependent on Ordinary Sense of Language.</p> <p>1. The construction of an ordinance is ascertaining the intention thereof, in accordance with well-settled legal rules which are the same as those governing the construction of statutes; such intention being primarily to be gathered from the language of the ordinance itself in the ordinary and popular sense.</p> <p>Municipal Corporations — No Exposition Contrary to Express Words Permissible Where Ordinance Unambiguous.</p> <p>2. If an ordinance is free from ambiguity, no exposition is permissible contrary to its express words.</p> <p>Municipal Corporations — Ordinances Construed to Effectuate Intent.</p> <p>3. In case of doubt an ordinance will be liberally construed to effectuate the legislative intent.</p> <p>Municipal Corporations — Statutes — Special Prevails Over General Act or Ordinance.</p> <p>4. Where two statutes treat of the same subject, one being special and the other general, unless they are irreconcilably inconsistent, the special aet or ordinance will prevail.</p> <p>Municipal Corporations — General Ordinance as to Time of Municipal Charter Amendment Election Held Impliedly Repealed by Special Provision.</p> <p>5. Where by a general provision in a city ordinance no charter amendment election could be held at a time less than 60 days from the passage of an ordinance Submitting the amendment, a special provision in another ordinance for a particular election held to impliedly repeal the general ordinance so far as it applied to such election.</p> <p>4. Construction together of contemporaneous statutes m pari materia, see notes in 18 Ann. Cas. 424; Ann. Cas. 1915A, 186.</p> <p>Municipal Corporations — General Ordinance will not Repeal by Implication a Former Special Ordinance.</p> <p>6. A general ordinance providing for the time of holding municipal charter elections, where there were no negative words, held not to repeal by implication a former special ordinance relating to the same subject.</p> <p>Municipal Corporations — City Held Auhorized to Pass Special Election Ordinance in Disregard of General Ordinance Provisions.</p> <p>7. A city, having power in the first instance to prescribe the method to be employed in the exercise of the initiative and referendum, could change such method] and pass a special election ordinance in disregard of the general ordinances on the subject, in view of Article IV, Section la, Constitution.</p> <p>Elections — Statutes Regulating Elections Liberally Construed in Favor of Electors Acting in Good Faith.</p> <p>8. A narrow or technical rule of construing a statute regulating elections should not be adopted against electors acting in good faith within the letter of the statute or ordinance.</p>