102 Or.

Volume 102 — Oregon Reports

49 opinions

102 Or. 1Silsby v. Willis (1921)Affirmed
Appeal and Error — Court Findings on Conflicting Evidence not Disturbed. 1. Where tbe parties differed' as to tbe terms of an agreement employing the plaintiff as to the compensation, the finding of the court on conflicting evidence will not be disturbed on appeal.
102 Or. 5Cady v. Bay City Land Co. (1921)Reversed and Remanded
From Tillamook: Geo. E. Bagley, Judge. In Bane. The plaintiff brought an action against the Bay City Land Company and the defendant Solon Schiffman as the indorser of two notes alleged to have been executed by that company to Schiffman as payee, one for $1,000 and the other for $1,800, both dated “Bay City, Oregon, October 18, 1916.” The making and delivering of the notes to Schiffman are admitted.
102 Or. 22Scott v. Wallace (1921)Affirmed
From Lane: G. F. Skipworth, Judge. Department 1. Claiming that there is an unpaid balance thereon dne from the defendants to him, L. S. Scott and his wife as plaintiffs bring this snit to foreclose a contract whereby the defendants agreed to purchase from L. S. Scott a tract of 150.04 acres of land in Lane County.
102 Or. 26Grant v. State Industrial Accident Commission (1921)Affirmed
Master and Servant — Notice of Final Action on Compensation Claim Held Given for Purpose of Appeal. 1. Within Section 6637, Or. L., providing that any beneficiary not satisfied with the decision of the Industrial Aeeident Commission may within 30 days after “notice” of the “final action” of the commission appeal to the Circuit Court, held that, though the question of compensation for temporary total disability was closed on the injured employee returning to work, yet the commission having thereafter continued to exereise jurisdiction, and treated as open the question of permanent partial disability because of a floating cartilage of the knee-joint, its subsequent determination that nothing should be awarded on that account unless he submitted to operation, and letter to his attorneys to that effect, was final action and notice thereof, as regards time to appeal on that branch of the case. Master and Servant — Compensation Claimant’s Duty to Submit to “Reasonably Essential” Operation Defined. 2. In Section 6633, Or. L., providing that, if a workman entitled to compensation under the act refuses to submit to such surgical treatment as the commission deems “reasonably essential” to promote recovery his right to compensation shall be suspended, the words “reasonably essential” are used in a relative sense, and imply the necessity of considering not merely the opinions of medical men, though all of them agree, but all the facts before attempting to decide; and right to compensation is suspended only if the workman refuses to submit to an operation to which an ordinarily reasonable man would submit if similarly situated. Master and. Servant — Reasonableness of Compensation Claimant’s Refusal to Submit to Operation Jury Question. 3. Whether the conduct of a workman in refusing to submit to a surgical operation directed under Section 6633, Or. If., is unreasonable, and so suspends his right to compensation, is one of fact for the jury demanded on appeal under Section 6637, and not of law for the court, where either the faets are in dispute, or where, they being admitted, reasonable men would draw different inferences therefrom. Master and Servant — Reasonableness of Compensation Claimant’s Refusal to Submit to Operation Held Question for Jury. 4. Whether a workman, in refusing to submit to an operation for a floating cartilage of the knee-joint, acted reasonably, so that his right to compensation was not suspended thereby, held, in view of the risk of a stiff knee, one of fact for the jury, though the medical men agreed that an operation was advisable. Master and Servant — Jury’s Decision on Appeal in Compensation Case Conclusive. 5. Where the reasonableness of a compensation claimant’s refusal to- submit to an operation directed under Section 6633-, Or. L., is a question of fact for the jury demanded under Section 6637, on appeal from the Industrial Accident Commission to the Circuit Court, the court is bound by the jury’s decision, though the verdict does not follow the exact language of the statute. Master and Servant — Percentage of Disability of Compensation Claimant Held for Jury. 6. The question of percentage of disability of an injured' workman because of a floating cartilage of the knee-joint held, in view of the conflicting testimony, one for the jury, on appeal from commission. 2. On refusal of injured workman to have operation performed as bar to compensation under Workmen’s Compensation Act, see notes in Ann. Cas. 1915D, 482; L. R. A. 1916A, 387. On duty of injured employee to submit to operation or to take other measures to restore earning capacity, see note in 6 A. L. R. 1260.
102 Or. 47Leadbetter v. Price (1921)Reversed and Remanded
Courts — Circuit Court Held to have Probate Jurisdiction. 1. Where the Organic Act as amended has abolished County Courts in certain counties, the jurisdiction of the Circuit Court in such counties was increased by the addition of probate jurisdiction, including that involving partnership estates. Partnership — Ownership by Two or More Individuals of All Corporate Stock or Entire Estate in Land Does not Make Them Partners. 2. That two ox more individuals hold some ox all of the stock in a given corporation, or own the entire estate in land, does not make them partners. Partnership — Is a Distinct Entity. 3. A partnership is a separate and distinct entity. Partnership — Property Does not Belong Separately to Individual Partners. 4. A partnership holds the partnership property in trust -for the payment of its debts, and such property does not belong separately, to the individual partners. 2. De facto corporations as partnerships, see note in 115 Am. St. Kep. 419.
102 Or. 53Brown v. Austin (1921)Reversed and Remanded
From Multnomah: John MoOoubt, Judge. In Banc. The defendants are the executors of the last will and testament of George Gardner, deceased, who died May 30, 1919, and whom Annie Brown, the mother of the plaintiff, married in September, 1885. Paul C. Brown, father of Charles Brown, plaintiff herein, died in February, 1885. All the foregoing statements are admitted by the pleadings.
102 Or. 60Pacific Placer Co. v. Sparlin (1921)Appirmed
Waters and Watercourses — Prior Appropriation for Hydraulic Mining may not be Encroached upon During Summer Season for Irrigation Purposes. 1. The right of a prior appropriator of waters from a stream for mining use, which is a public necessity, cannot be encroached upon through the summer season by subsequent appropriation of waters for irrigation purposes, in view of Sections 5789, 5716, Or. L., where such, waters are reasonably necessary for hydraulic mining. Waters and Watercourses — Objection to Informality in Exception to Determination of Water Board cannot be First Made upon Appeal. 2. Where the parties were heard on exceptions to determination of water board, an objection to an informality in the entitling of an exception comes too late when first made on appeal, where appellants were not misled or injured. 1. On effect of prior appropriation of water for mining purposes, see note in 22 L. R. A. (N. S.) 281. On the question of right as between appropriator above and junior appropriator below mill, during period when water not used1 by mill, see note in 30 L. R. A. (N. S.) 615. On right of prior appropriation of water at common law and under special statutes or customs, see note in 30 L. R. A. 665.
102 Or. 66Bartels v. McCullough (1921)Modified
From Linn: George G. Bingham, Judge. In Banc. This is a suit to foreclose certain mechanics’ liens upon a group of mining claims in Lane County. The plaintiff claims a lien on his own behalf for $405.70, one as assignee of E. O. Pooler for $253.69, and another for $445.76 as assignee of Lester Powers. All of the notices assert the respective liens oh account of work and labor performed in the mines and in search of precious metals in said mines, or in mining and milling ores.
102 Or. 76Breese v. Bramwell (1921)Motion Allowed
Injunction — May Issue Before Service of Summons After Commencement of Suit by Filing Complaint. 1. Under Section 417, Or. D., as to time of allowing injunction, and Sections 51 and 395, as to how suit is commenced and when summons may be served, injunction may issue after commencement of suit by filing complaint, before summons is served. Appeal and Error — Temporary and Interlocutory Injunction Order not Appealable. 2. An injunction being temporary and interlocutory, the order granting it is not a final determination necessary under Section 548, Or. L., for appeal. Banks and Banking — Injunction may Before Final Judgment Issue Against Superintendent of Banks in Charge of Insolvent Bank. 3. Section 6221, Or. D., prohibiting injunction against an insolvent bank before final judgment, does not apply to injunctions against the superintendent of banks, who has taken charge of such a bank, and also against another bank in which the superintendent ¡has deposited funds, forbidding the paying out of such funds.
102 Or. 80Shaw Wholesale Co. v. Hackbarth (1921)Affirmed
Contracts — Party Suing for Breach must Generally Allege Performance- or Readiness to Perform. 1. As a -general rule, a complaint to recover damages for breach of contract must allege full performance or readiness- and- ability to perform on the part of plaintiff. Pleadings — Defective Complaint After Findings by Trial Court Construed in Favor of the Pleader — -Complaint not Stating Cause of Action not Cured by Judgment. 2. Under the statute giving the findings of the court in an action at law tried without a jury the force and effect of a verdict, and the rule that where defendant answers after his demurrer has been overruled the complaint is to be construed most strictly in favor of the pleader, a complaint will be sustained after a judgment for -plaintiff on the findings of the court if it contains a defective statement of a cause of action, but not if it fails to state a cause of action. Sales — Buyer Need not Offer to Perform if Contract Repudiated by Seller Before Time for Delivery. 3-. - Where the seller definitely repudiated his contract for the sale of lumber before the time for delivery of the lumber, a complaint by the buyer to recover damages for the breach of the contract need not allege that the buyer offered to perform, or that he was ready and able to -perform. ON REHEARING. (20-1 Pac. 1066.) Contracts — Offer Containing Promise for Consideration, Accepted by Promisee, Completes Contract. 4. An offer containing a promise for a consideration to do an act which the promisor has a right to do, followed by -an unqualified and unequivocal acceptance by the promisee, -creates a contract. Contracts — Offer must Intend to Create Obligation on Acceptance. 5. An offer, to be sufficient, must be one which is intended of itself to create legal relations on acceptance, and must be capable of creating a definite obligation. Contracts — Acceptance must be Unequivocal and Unconditional. 6. The acceptance of an offer which completes a contract must be positive, unconditional, unequivocal and unambiguous, and must not change, add to or qualify the terms of the offer. Contracts — Additional Condition in Acceptance Rejects Offer and Makes Counter-offer. 7. A purported acceptance of an offer which contains an additional condition is, in effect, a rejection of the offer and the making of a counter-offer, which becomes a binding contract only when accepted by the maker of the original offer. Contracts — Condition in Acceptance Which Would be Implied Does not Reject Offer. 8. The insertion by the acceptor of a condition which does not qualify the offer in legal effect, because it is a condition which the 'law would imply, does not prevent the acceptance from completing the contract. Contracts — Writings Alone Determine Existence of Contract by Correspondence. 9. Where it was conceded that all the negotiations for the alleged contract were in writing, the writings alone can be looked to to determine whether a contract resulted therefrom. •Sales — Acceptance. Specifying Sixty-day Payment Rejects Offer Fixing Mo Time for Payment. 10. In view of Section 8205, Or. L., making payment and delivery concurrent unless otherwise specified, an acceptance specifying payment on 60' days’ time was a rejection of an offer to sell goods which stated no time for payment. Sales — Acceptance Fixing Time of Delivery Rejects Offer Silent as to Delivery. 11. An offer for the sale of lumber to be manufactured and delivered is rejected by an acceptance thereof which specifies delivery shall be made by a specified date, where there was no evidence that the date so fixed was a reasonable time for delivery. Sales — Delivery to be Made Within. Reasonable Time Unless Otherwise Specified. 12. Where the time of performance of a contract for the manufacture and sale of goods is not specified, delivery is to be made within a reasonable time, depending on the circumstances. Sales — Letter Indicating Belief Contract was Completed was not Acceptance. 13. Where an offer to sell goods was rejected by a purported acceptance imposing additional conditions, a subsequent letter by the seller, indicating a belief that a contract existed between him and the buyer, was not an acceptance of the counter-offer contained in the conditional acceptance. Contracts — Acceptance must be Communicated. 14. To constitute acceptance of an offer to make a bilateral contract, there must be an expression of the intention to accept by word, sign, or writing -communicated or delivered to- the person making the offer, or his agent. Customs and Usages — Must be Pleaded. 15. Before a custom can be relied upon it must be pleaded. Customs and Usages — Can be Resorted to to Construe Contract but not to Create it. 16. Evidence of a general custom in the trade with reference to which the parties are presumed to have contracted is admissible to aid in the -construction of the contract which is proved to have been completed, but is not admissible to establish the existence of a contract not otherwise established.
102 Or. 102State v. Weston (1921)Reversed and Remanded
Indictment and. Information — Both Christian Name and Surname of Accused Should be Stated. 1. Generally, an indictment should state both the Christian name and the surname of the accused. Indictment and Information — Use of Defendant’s Initials, Instead of Full Christian Name, Held not Fatal. 2. Use of initials, instead of full Christian name of defendant, held not fatal to indictment under Or. Code (Or. L., Tit. XVIII, e. 7), where defendant stated on arraignment that the name under ■which he was indicted was his true name. Homicide — Indictment, Charging That Defendant Killed Deceased by Means to Grand Jury Unknown, Held Sufficient. 3. Indictment, charging that defendant killed deceased by means to the grand jurors unknown, held sufficient under Section 1439, Or. L.; the indictment following form No. 1, page 1346. Homicide — Indictment Should Allege Manner of Killing Deceased, Where Shown by Evidence Before Grand Jury. 4. Indictment charging murder should allege manner by which deceased was killed where shown by the evidence before the grand jury, but an allegation that defendant committed the crime by some means and manner to the grand jury unknown, or by some means, instruments, and weapons to the jurors unknown, is sufficient when the circumstances of the case will not admit of greater certainty. Homicide — Allegation That Deceased was a Human Being Unnecessary. 5. It is not necessary for indictment charging murder to aver that the person killed was a human being. Criminal Law — Distinction Between an “Admission” and a “Confession” Stated. 6. There is a distincton between admissions and declarations admissible under Section 727, subdivision 1, Or. L., and confessions within Section 1537; admissions being statements by a party or someone identified with him in legal interest of the existence of a fact which is relevant to the cause of his adversary, and confessions being declarations and admissions whereby a person accused of crime acknowledges that he committed it, or that he is an accomplice therein. Criminal Law — Testimony as to Admissions by Defendant Held Admissible to Prove Corpus Delicti. 7. In murder prosecution testimony as to defendant’s admissions that it would be necessary to get rid of the deceased, since deceased had caught defendant and others moonshining, held admissible as some proof of the corpus delicti, inasmuch as it tended to show the agency of the defendant. Criminal Law — Order of Proof Regulated by Sound Discretion of Court. 8. The order of proof is regulated by the sound discretion of the court. Criminal Law — Corpus Delicti Need not be Shown Before Connecting Defendant With Offense, Where Two Matters are Intimately Connected. 9. Though it is the general practice in homicide eases first to establish the corpus delicti and then connect defendant with the killing, and though sueh practice should be adhered to where the questions of the corpus delicti are clearly separate from that of the defendant’s guilt, the court may in its discretion admit testimony as to the corpus delicti and the defendant’s guilt at the same time when the two matters are so intimately connected that there can be no separation. Criminal Law — Testimony as to Acts and Admissions of Defendant Admissible at Any Stage of Proceeding Where Corpus Delicti is Dependent Thereon. 10. Where the corpus delicti in homicide prosecution depends entirely for its existence upon the acts and the intent of the accused, sueh acts and admissions, if admissible at all, are admissible at any stage of the proceeding. Homicide — “Corpus Delicti” Defined. 11. The corpus delicti is the body of the offense or crime, and consists in homicide prosecution of the death and the existence of criminal agency as the cause thereof. Homicide — Direct Evidence not Necessary to Establish Corpus Delicti and Defendant’s Guilt. 12. In a homicide prosecution, direct evidence is not required to prove either the corpus delicti or defendant’s guilt, but circumstantial evidence, where relied upon, must be of the most cogent and convincing nature. Criminal Law — Defendant’s Confession Alone, Without Corroborating Proof of Corpus Delicti, Insufficient to Support Conviction. 13-. Defendant’s confession, taken alone and without corroborating proof of the corpus delicti, is not sufficient to support a conviction. Criminal Law — Jurors Sole Judges of Credibility of Witnesses and Value of Evidence. 14. Jurors are the sole judges of the credibility of witnesses and the effect or value of the evidence. Homicide — Corpus Delicti Held for Jury. 15. In homicide prosecution evidence held sufficient to establish the corpus delicti. Homicide — Evidence Held to Sustain Conviction of Murder. 16. In prosecution for murder, in which it was claimed that defendant killed deceased and burned his body and cabin in which he had resided to prevent deceased from informing authorities that defendant was engaged in moonshining, evidence held to sustain conviction. Criminal Law — Instruction as to Declaration Accompanying the Crime Held Erroneous, in Absence of Evidence as to Any Such Declaration. Í7. In prosecution for murder in which there was no testimony of any declaration accompanying the act of homicide or so closely connected therewith as to be deemed a part of res gestae, court erred in instructing jury as to such declarations. Homicide — Evidence as to Note Given Deceased Admissible When Robbery was Motive. 18. In prosecution for murder, testimony that witness had given deceased a certain note, and that he had made interest payment thereon to deceased shortly before the homicide, held admissible, where defendant had possession of the note after the homicide, as possession of valuables by deceased may always be shown where the motive is robbery. Homicide — Testimony That Defendant was Seen in Possession of Note Belonging to Deceased Shortly After Homicide Admissible. 19. In prosecution for murder, testimony that a few days after the homicide defendant was seen in .possession of note belonging to deceased held admissible.; defendant’s unexplained possession being a valuable circumstance tending to establish guilt. 12. Por authorities discussing the question of necessity of proof of corpus delicti in homicide, see notes in 78 Am. Dec. 252; 68 L. R. A. 35, 46, 53, 57; 7 L. R. A. (N. S.) 181. 13. Proof of corpus delicti as essential to admissibility of confession, see note in 1 Ann. Cas. 823. Homicide — Testimony That Witnesses Saw Fire in Which Deceased was Burned to Death Held Admissible. 20. In prosecution for murder, in which it was claimed that defendant had set fire to cabin in which deceased lived, in which fire deceased had been burned to death, testimony that witnesses saw fire in vicinity of deceased’s cabin during the night of the homicide, and that they saw no other fires during such night, held admissible. Homicide — Testimony as to Position of Contents of Cabin Claimed to have Been Set on Fire by Defendant Held Admissible. 21. In prosecution for murder, in which it was claimed that deceased was burned to death in fire set by defendant after defendant had bound deceased, testimony as to contents of cabin and position thereof and as to door being unhung held admissible. Homicide — Testimony as to Condition of Building Claimed to have Been Set on Fire by Defendant Held Admissible, Though Remote. 22. In prosecution for murder in which it was claimed that defendant set fire to deceased’s cabin, and that deceased was burned to death therein, testimony as to condition of door of cabin at a time preceding the homicide held admissible; the objection of remoteness going to the weight, and not to the competency of the testimony. Homicide — Testimony as to Threats Made by Defendant Held Admissible. 23. In prosecution for murder, testimony as to threats made by defendant held admissible to show his animus toward deceased and as circumstances affecting his guilt or innocenee. Homicide — Considerations Affecting Weight to be Given Testimony as to Defendant’s Threats Toward Deceased. 24. Weight of evidence as to threats by defendant as showing animus and guilt is dependent on their character, the occasion, nearness in time, and the particular circumstances surrounding the offense. Homicide — Defendant’s Declaration That He Did It in Self-defense Held Admissible. 25. In prosecution for murder, in which defendant denied having killed deceased, testimony as to defendant’s declaration, made while in jail, that “I will show them I done it in self-defense,” held admissible. Criminal Law — Canceled Check to Deceased in Payment of Interest on Note, Found in Defendant’s Possession After Homicide, Held Admissible Over General Objection. 26. In prosecution, for murder, in whieh there was testimony that defendant was in possession of deceased’s note shortly after the homicide, canceled check from maker of note to deceased, showing payment of interest shortly before the homicide, but cashed three days after deceased’s death, held admissible as against general objection. Witnesses — Defendant's Cross-examination of State’s Principal Witness as to Declaration of Witness Showing Hostility Toward Defendant Proper. 27. In murder prosecution, refusal to permit defendant to cross-examine state’s principal witness, who had been arrested for moon-shining, as to whether he had stated to named person that defendant had _ “squealed on me, * * and I will make him do time,” held reversible error; sueh testimony being admissible to show that witness entertained hostile feelings against defendant. Criminal Law — Presumed to Speak Truth, hut Presumption may he Overcome. 28. A witness is presumed to speak the truth, but this presumption may he overcome.
102 Or. 137Heisley v. Eastman (1921)Affirmed
From Marion: George G. Bingham, Judge. Department 1. This suit was brought by O. F. Heisley and bis wife, S. Etta Heisley, against L. C. Eastman, C. J. Johnson and the latter’s wife, Edna L. Johnson, for damages and to enjoin the defendants from interfering with a drain laid across land now owned by Eastman and now occupied by the Johnsons as tenants. A trial resulted in a decree enjoining the defendants from interfering with the drain, awarding the plaintiffs $190 as damages on account of past interference with the drain, and permitting the plaintiffs to enter upon the land owned by Eastman in' order to repair the drain and to lower it if necessary “to make it of its former efficiency, not exceeding two feet below the basement floor.” The plaintiffs own and maintain a hospital in Silverton. Fisk Street, which extends north and south, is adjacent to and east of the hospital. East of Fisk Street is lot 12; and adjoining lot 12 on the east is Silver Creek. There is a tile drain embedded in the ground and extending from the basement to the hospital easterly across Fisk Street, thence across lot 12 to Silver Creek. This tile drain is between two and three hundred feet in length. Eastman now owns, and since March 6, 1920, has owned, approximately the east half of lot 12 while the remainder or west half of lot 12 is now owned by J. M. Brown. On January 3, 1921, the drain was plugged up at a point on the Eastman premises; and upon the refusal of the defendants to permit the plaintiffs to remove the plug and repair the drain, the plaintiffs began this suit. In substance the plaintiffs allege in their complaint that the defendants maliciously broke the drain and stopped the flow of water causing the basement of the hospital to be flooded and the fires in the furnace to be extinguished to the damage of the plaintiffs; that the defendants forcibly prevented the plaintiffs from removing the obstructions placed by them in the drain and that they will continue to do so unless restrained by the court. The complaint concludes with a prayer for a decree commanding the defendants to allow the plaintiffs to enter upon the Eastman premises and restore the drain to its former condition and enjoining the defendants from interfering with the drain and allowing the plaintiffs damages. Eastman filed a separate answer in which he avers that Brown gave to the plaintiffs, without limitation of time, oral permission to lay through lot 12 a tile drain leading from the hospital to Silver Creek; that the permission was given by Brown without the payment of any consideration hut with the express agreement that the drain should be so laid “and from time to time maintained that the same and the use thereof, should never in any manner, interfere with any use which the said licensor (Brown) and his assigns should desire to put said property”; that thereafter Brown deeded approximately the east half of lot 12 to Eastman; that Eastman constructed a foundry on the premises purchased by him; that in order to enable Eastman to use the premises for a foundry it was necessary that the drain be lowered; that Eastman requested the plaintiffs to lower the drain but they refused to do so; that thereafter during the winter season of 1920 the plaintiffs collected and discharged large quantities' of water through the drain and upon the Eastman premises weakening the building and destroying parts of it, and flooding the floor of the foundry to the damage of the tenants and Eastman; that the plaintiffs refused to take steps to prevent the flooding although they were fully aware of existing conditions; that on account of the alleged flooding of the premises and the refusal of the plaintiffs to remedy conditions and their alleged violation of the condition attaching to the license, Eastman on September 24, 1920, by notice in writing terminated the license to maintain the drain across his premises. Eastman concludes his answer with a prayer for a decree enjoining plaintiffs from discharging water upon his premises and fox damages caused by flood' ing the foundry. The Johnsons answered by alleging that they are partners engaged in the foundry business under the name of Silverton Foundry Company and that since May 1,1920, they have been in possession of the Eastman premises and “have been and are now operating and conducting on said premises an iron and brass foundry and a moulding and pattern-shop.” The Johnsons aver that during the months of November and December in 1920 and the month of January, 1921, the plaintiffs collected and discharged large quantities of water in the foundry and flooded the floor to their damage. The Johnsons concluded their answer with a prayer for a decree enjoining the plaintiffs from discharging water upon the foundry premises and for damages. The allegations in the two answers, relied upon by the defendants for affirmative relief, were denied by the plaintiffs.
102 Or. 159Leadbetter v. Price (1921)Affirmed
Wills — Striking of Allegations from Petition in Proceeding to Contest Will Held Harmless. 1. In a proceeding to contest the validity of a will, the striking from the original petition of allegations that the will was void because trustees were given an unrestricted and unlimited discretion as to the accumulation of the income, because the beneficiaries of the trust were not specified with sufficient certainty, and because its provisions were in contravention of statute and against public policy, was not harmful error, where the questions raised by such allegations were discussed on appeal, as they were only conclusions of law and the questions thereby raised appeared on the face of the writing. Wills — Suit to Contest Validity Held Within Jurisdiction of Circuit Court, Whatever Its Nature. 2. Notwithstanding Article VII, Section 12, Const., giving County Courts the jurisdiction pertaining to probate courts, under Sections la and 2b, vesting the judicial power in the Supreme Court and sueh other courts as may be created by law and continuing the courts and their jurisdiction until otherwise provided by law, and act of February 17, 1919 (Laws 1919, c. 59; Or. E., §§ 3142-3140), abolishing County Courts in certain counties, the Circuit Court of such a county had jurisdiction over a proceeding to contest the validity of a will, whether considered as a proceeding to determine its authenticity or as a suit to construe the will. Evidence — Judicial Notice Taken That Statute Applies te Specified County. 3. The court will take judicial notiee that act of February 17, 1919 (Laws 1919, c. 59; Or. L., §§ 3132-3140), abolishing the County Court and the office of the county judge and transferring the judicial jurisdiction, power, and authority of county judges and County Courts to the Circuit Court in judicial districts comprising only one county having over 100,000 population, applies to Multnomah County. Wills — Evidence Merely Showing Trustees had Testator’s Confidence Insufficient to Show Undue Influence. 4. Evidence showing only that one of the trustees vested with extensive powers under the will of a testator was for many years manager of the newspaper published by a corporation of whieh the testator held the majority of the stock, .and that the other was the testator’s private secretary, and therefore that they had his confidence and the opportunity to exercise such influence as they possessed, was insufficient to establish undue influence, where the evidence was convincing that they never exereised or attempted to exercise influence over him in making his will, .and that, on the contrary, the initiative came from him, and that he had much more influence over them than they had over him. Wills — Undue Influence Actually Exercised and Pushed to Extent That Will was not Testator’s must he Shown. 5. It is not sufficient to show that a defendant had an opportunity to exercise undue influence over a testator, but it must also appear that the influence was actually exercised and pushed to such an extent that the resultant will was not that of the testator but that of the party procuring its execution. Wills — Cannot be Attacked as Result of Illegal Contract When Such Contract not Pleaded. 6. A provision of a will of a majority stockholder in a newspaper corporation for the retention by trustees of the manager and managing editor cannot be attacked as the result of a contract illegal and against public policy, in the absence of any allegation of an illegal contract void as against public policy. Trusts — Bequest by Majority Stockholder to Trustees Directed to Elect Themselves as Directors, etc., Held not Illegal. 7. Where a majority stockholder in a newspaper corporation bequeathed his property to trustees, a provision that the stock in such company should not be sold during the trust period of 20 years and that the trustees should vote it in favor of themselves as directors, and stating the testator’s desire that the manager and managing editor should be retained, was not illegal, where there was nothing to show that the testator acted on account of any sinister motive or by reason of any corrupt consideration or advantage accruing to himself and not equally accruing to the minority stockholders. Corporations — Bequest of Stock in Trust With Directions as to Voting not “Voting Trust.” 8. A bequest of the majority of the stoek in a corporation to trustees, with directions to vote the stoek for themselves as directors during the term of the trust, was not a “voting trust”; there being no combination of stockholders. Perpetuities — Bequest to Trustees for Twenty Years Held, not to Constitute. 9. A will bequeathing property to trustees to hold in trust for twenty years and make certain monthly payments to the testator’s widow and children, and after all debts and obligations had been paid, or when a sufficient amount should be on hand to pay them, to pay 50 per cent of all eash on hand in excess of such reserve and such amount as would be needed to preserve the estate to the widow, or if she should not be living to the children, did not create a perpetuity, as it did not purport to perpetuate the limitation upon the property for more than any life then in existence and twenty-one years thereafter. Corporations — Agreements as to Voting Stock not Necessarily Void. 10. Agreements between stockholders to vote their stock in a certain way are not necessarily void per se, in the absence of any element of private personal gain to aecrue to the contracting parties and not to be enjoyed by other members of the corporation. Wills — Request That Trustee Holding Corporate Stock Keep Certain Employees not Mandatory. 11. Where the owner of a majority of the stoek of a newspaper corporation bequeathed it with other property to trustees for twenty years and directed that sueh stoek should not be sold and that the trustees should vote it in favor of themselves as directors, and stated that it was his “desire” and “request” that the manager and managing editor of the newspaper should be retained, the will was not mandatory as to their retention, especially where other provisions of the will gave the trustees full and complete power and authority over the estate and power to vote the stock in various corporations. Wills — Trust Held not Void for Uncertainty. 12. Where a will, reciting that it was done to avoid as far as possible any loss or depreciation of the estate, gave all of the testator’s property to trustees for twenty years, with full and compíete power and authority over the estate and with the right to full and complete possession and control and with directions to keep surplus funds invested in good securities, and directed them to pay monthly allowances to testator’s wife and children and their descendants by right of representation and to accumulate enough to pay off debts and obligations and then disburse the excess to the wife and children, and, upon the termination of the trust at the end of the 20 years, to divide the property among testator’s descendants, the trust was not void for uncertainty. 8. Validity and effect of provision in will to control voting power of corporate stock, see note in 9 A. L. R. 1242. 9. Postponing distribution until payment of debts or settlement of estate as violating rule against perpetuities, see note in 13 A. L. R. 1033. 10. Por .authorities discussing the question of validity of agreement to control the voting power of stock, see notes in 14 Ann, Cas. 938- 21 Ann, Cas. 1297; Ann. Cas. I915D, 800; Ann. Cas. 1917B, 373; Arm. Cas. 1917E, 594; Ann. Cas. 1918E, 252; 16 L. R. A. (N. S.) 1136; 31 L. R. A. (N. S.) 1186. ON MOTION TO BETAX COSTS. Costs and Disbursements must be Authorized by Statutes. 13. No costs or disbursements can be allowed in any court unless authorized by statutes. Courts — Buie of Court must Yield to Contradictory Statute. 14. A rule of the Supreme Court must yield to a statute to which it is in direct contradiction. Costs — Clerk of Supreme Court cannot Disallow Item of Disbursements of Bill to Which There has Been No Objection. 15. Under Section 569, Or. L., providing that costs and disbursements shall be taxed and allowed by the court or judge thereof, and that the statement of disbursements and costs shall be entered as of course by the clerk as a part of the judgment or decree, unless objections are filed, and that the statement of disbursements and objections thereto constitute the only pleadings required on the question of taxation and allowance of costs and disbursements, and under Section 570, empowering the court to pass upon objections, and in view of Sections 161, 542, 561, 565, 566, and notwithstanding rules of the Supreme Court Nos. 29 and 30, the clerk of the Supreme Court had no right to disallow disbursements for printing of brief where no objection thereto had been filed, since neither the court nor the cleric has arbitrary power to disallow any item of disbursements against which no objection has been filed except with respect to filing fees.
102 Or. 214Grasser v. Jones (1921)Affirmed
Convicts — Limitation of ‘Actions — One Imprisoned cannot Redeem Real Property Under Foreclosure After One Year — “Civil Rights.” 1. Where mortgagor was convicted of -a felony and imprisoned, and foreclosure was had by reason of default, and sheriff’s deed delivered, he was not entitled, after leaving the prison more than one year after the delivery of the sheriff’s deed, to give notice and redeem under Section 248, Or. L., either by Section 17, Or. L., relating to running of limitations, or Section 2389, suspending “eivil ■rights” of persons imprisoned; the right to redeem being manifestly a civil right. On the question of capacity of convict to contract, see notes in Ann. Cas. 1916D, 225; 52 L. R. A. (N. S.) 320.
102 Or. 220State v. Cornwall (1921)Affirmed
From Yamhill: H. H. Belt, Judge. Department 1. In May, 1919, the state highway commission decided to grade and macadamize the Newberg-West Dayton section of the West Side Highway in Yamhill County. On May 27, 1919, the state highway commission entered into a written contract with E. E. Cummins to do the work.
102 Or. 240Coshun v. Hurlburt (1921)Affirmed,
Constitutional Law — Taxation. — Holder of Tax Certificate had No Vested Bight to Fifteen Per Cent Interest on Taxes Subsequently Paid. 1. Although holder of delinquent tax certificate issued in 1915 had a vested right to reeeive 15 per cent interest upon the amount specified in the certificate by reason of Section 3693, L. O. L., and subsequent sections, as amended by Laws of 1913, page 338, he had nb vested right to reeeive 15 per cent interest on taxes paid by him in subsequent years; there being no obligation on his part to pay them. Constitutional Law — No Vested Bight in Interest on Delinquent Taxes. 2. A so-called Tate of interest on delinquent taxes of 15 per cent per annum is in fact a penalty, in which there can be no vested right. Taxation — Holder of Tax Certificate not Entitled to Fifteen Per Cent Interest on Subsequently Paid Taxes. 3. Laws of 1917, page 434, Section 7, amending Section 3693, L. O. L., as amended by Laws of 1913, page 338, and Tedueing from 15 per cent to 12 per cent interest to be paid on delinquent taxes, does not exclude from its operation subsequent taxes paid by the holder of a delinquent tax certificate issued p-rior to its passage. 1. On implied right to interest on taxes or assessments, see note in 16 Aun. Cas. 471; 6 L. R. A. (N. S.) 694.
102 Or. 245Peterson v. Beals (1921)
Appeal and Error — Supreme Court has No Power to Amend Record of Court Below. 1. The Supreme Court has no power to amend the record of the Circuit Court, and can only determine whether or not the Circuit Court erred in its decision. Appeal and Error — Official Record of Court Below Imports Absolute Verity as to Time of Entry of Judgment, and cannot be Contradicted by Affidavits. 2. The official record of the court below imports absolute verity, and the recitals of a journal entry -as to the day on which a judgment was entered cannot be contradicted by ex parte affidavits. Courts — “Vacation” Defined. 3. The periods between the end of one term of court and the beginning of the next are called vacations. Appeal and Error — Appellate Court has No Jurisdiction Where Transcript not Filed Within Thirty Days. 4. Under Section 554, Or. L., the Supreme Court acquires no jurisdiction of an appeal where appellant filed his transcript in the appellate court more than sixty days after rendition of the deeree.
102 Or. 250Henricksen v. Clark (1921)Aeeirmed
From Morrow: Gilbert W. Phelps, Judge, In Banc. According to the statement in the defendants’ brief, this is a proceeding brought under Section 7334, Or. L., by the plaintiff Henricksen, to contest the election of the defendants Clark and Reitmann as directors of the John Day Irrigation District.
102 Or. 254Allen v. Craig (1921)Reversed and Remanded
Taxation — Statutory Penalty for Refusal to List Property, if Paid Before Suit is Payable to tbe Assessor. 1. Under Section 4273, Or. L., providing a penalty for the refusal of a property owner to give an assessor a list of his property, with its value, if the owner pays the penalty for such refusal before suit is brought, it should be paid to the assessor for use of the county. Penalties — Informer, Suing in His Own Name for Penalties, must be Authorized by Statute or by Necessary Implication. 2. In order to prosecute an aetion for a penalty in his own name, an informer must be authorized to do so by statute or by necessary implication. Penalties — Express Statutory Provision That a County shall Prosecute All Actions for Penalties Applies Though Part Goes to an Informer. 3. Where there is a general statute providing that all actions for penalties may be prosecuted by the county, and also a statute providing that a portion of the penalty shall go to an informer, the aetion must be prosecuted in the name of the county. Taxation — Assessor cannot Maintain Action in His Own Name for Benefit of County, Unless Authorized by Statute. 4. In an action to recover a statutory penalty for failure to give an assessment list of property as required' by Section 4273, Or. L., an assessor cannot maintain the action in his own name, unless he is authorized by statute. Taxation — Statutes Do not Permit Assessor to Sue for Penalty in His Own Name, for the Benefit of the County, on Refusal to List Property. 5. Although Section 4273, Or. L., provides that a person refusing to give an assessor a list of his property shall forfeit and pay to the assessor, for the benefit of county, a penalty which may be recovered by legal aetion, the assessor is not the proper party to prosecute the aetion. Taxation — In Suit to Collect Penalties for Failure to List Taxable Property, the County is the Real Party in Interest and Should Sue. 6. In an aetion under Section 4273, Or. L., to collect a penalty for refusal to give a list of taxable property to an assessor, the county is the real party in interest, and under Section 27, providing that every action shall he prosecuted in the name of the real party in interest, a suit to collect the penalty should be in the name of the county. 2. What are quA tam actions, and the rights of informers, see note in 50 Am, St. Rep. 5'57. Taxation — In Suit for Penalty for Benefit of County, Assessor is not Trustee of an Express Trust, so as to Sue in His Own Name. 7. In a suit under Section 4273, Or. L., for refusal to give the assessor a list of taxable property, the assessor is not a trustee of an express trust, so as to authorize him to bring suit in his own name, under the provision of Section 29. Taxation — Provision That Suit to Collect Penalty may be in Name of County Precludes Assessor from Suing in His Own Name. 8. In an action under Section 4273, Or. L., to collect a penalty for failure to give a tax assessor a list of taxable property, the express provision of Section 367 that a county may sue in its corporate name to recover a penalty precludes the assessor from suing to collect penalty in his own name for the benefit of the county. Taxation — Complaint by Assessor in Action in Own Name to Collect Penalty for Benefit of County Held not to State Cause of Action. 9. The right to maintain an action under Section 4273, Or. L., to recover a penalty for failure to give a tax assessor a list of taxable property, is not in the assessor, and a complaint in a suit by the assessor fails to state a cause of action. Counties — County Court can Discontinue Suit by an Assessor for Benefit of County. 10. Under Section 937, subdivision 9, Or. L., giving a County Court the general 'Care and management of the county property, funds and business, and Section 938, giving it the power to control all actions, suits, or proceedings by the county, the determination of a County Court to end a suit in the name of an assessor for the benefit of the county to collect a penalty, under Section 4273, for failure to give a list of taxable property, is, in the absence of fraud, binding on the assessor. Taxation — Determination of Board of Equalization That a Verified List and Statement of Taxable Property was Correct Binding on the Assessor. 11. Under Section 4273, Or. L., providing a penalty for refusal to give the assessor a list of taxable property, the determination of the board of equalization that a verified list and statement submitted to the assessor and refused by him was a true and correct list and statement of the value of the property was a judicial decision, binding on the assessor.
102 Or. 265Greig v. Owyhee Irrigation District (1921)Affirmed
Waters and Watercourses — Petition for Irrigation District not Required to be Filed Before Notice of Intention was Published. 1. Under Section 6168, L. O. L., in force in 1910; it was not necessary that a petition for establishment of an irrigation district be filed in the County Court before notice of intention to present for hearing was published; it being sufficient to file it on the day it was presented for action. Waters and Watercourses — Qualifications of Signers of Petition for Irrigation District Held Sufficiently Shown. 2. A petition for establishment of an irrigation district in 1910, reeiting that the petitioners claimed to be “holders of title” to lands within the proposed district, was sufficient to show that the signers were qualified in an original suit to impeach and set aside the order of the county court establishing the district. Waters and Watercourses — Petition for Irrigation District Sufficient Without Showing Qualifications of Signers. 3. A petition in 1910 for establishment of an irrigation district was not required to set forth particularly the qualifications of the signers. Waters and Watercourses — System Sought to be Utilized in Irrigation District Need not be Described in Petition. 4. Section 6168, L. O. L., in force in 1910, did not require that the system sought to be utilized shoxild be described in a petition for establishment of an irrigation district, and a petition as broad as the statute was sufficient. Waters and Watercourses- — Notice of Hearing of Petition for Irrigation District, Though Signed by County Coux*t Clerk, Sufficient. 5. Notice of hearing of petition filed in 1910 for establishment of an irrigation district need not be signed by the clerk of the County -Court, being properly signed by the petitioners. Waters and Watercourses — Bond Filed on Petition for Irrigation District Held Sufficient. 6. A bond filed with a' petition in 1910 for establishment of an irrigation district was not insufficient, under Section 7305, L. O. L., in that it was conditioned in the sum of $1,000 rather than for whatever cost -might be adjudged in ease the petition should not be granted. Waters and Watercourses — Sureties on Bond Filed* With Petition for Irrigation District Need not be Disinterested. 7. Sureties on a bond filed with a petition for establishment of as. irrigation district in 1910 need not be “disinterested persons,” under Section 7305, Or. L. Waters and Watercourses — Order Calling Election for Irrigation District Need not Show Proof of Publication. 8. An order in 1910 calling an election to vote on the question of organization of an irrigation district need not show that proof of publication of petition and notice had been made; it not being necessary to state the faets from which the court derived its authority. Waters and Watercourses — Land in Towns Excluded from Irrigation District. 9. Irrigation district established in 19Í0 was not invalid because lands included within towns were excluded. Waters and Watercourses — Finding Held to Show That Lands Would be Benefited by Irrigation. 10. A finding in a proceeding to establish an irrigation district that all the lands “are susceptible of irrigation from a common or combined source and by the same system of works,” etc., held sufficient finding that the lands would be benefited. Waters and Watercourses — Order Held One Establishing and Naming Irrigation District. 11. An order that certain territory “has been duly, legally, and regularly organized as an irrigation district under the name and style of,” etc., held a sufficient order establishing the district and naming it. Waters and Watercourses — Irrigation District not Invalid Because Judges and Clerks were not Qualified Voters. 12. The fact that judges and clerks of an election to establish an irrigation district in 1910 were not qualified voters within the district would be a mere irregularity, which would not invalidate the election; such persons being, in any event, de facto officers, whose acts would be valid. Waters and Watercourses — Notice of Election to Establish District Properly Signed by Clerk of Court. 13. Clerk of County Court under direction of the court was the propei officer to sign a notice of election in 1919 for the establishing of an irrigation district. Waters and Watercourses — Election Unnecessary to Include Lands in or Exclude Lands from Drainage District. 14. Subsequent to organization thereof, lands could be included in or excluded from an irrigation district on petition, under Section 7341, Or. L., without the calling of an election; such a district being only a quasi-municipal corporation, having no specific charter and organized for a particular purpose. Waters and Watercourses — Lands not to be Excluded from or Included in Irrigation District Without Consent. 15. After an irrigation district was organized in 1910, it could not, against the will of one residing outside of its boundaries, include him within its limits, nor could it, against the will of one within its boundaries, exclude Mm from the district. Waters and Watercourses — 'Want of Election of Officers and Failure to Issue Bonds not Abandonment of Franchise of Irrigation District. 16. An irrigation district organized in 1910 did not abandon its corporate franchise by reason of the fact that during the years 1914 to 1918, exclusively, no election of officers was had, and the old officers continued to hold over, and no bonds were voted or irrigation system constructed.
102 Or. 275Patterson v. Howe (1921)Reversed and Remanded
Physicians and Surgeons — In Malpractice Action, Terms of Employment Need not be Stated. 1. Where complaint in malpractice aetion alleged that plaintiff employed defendant to do the dental wort complained. of, it is not necessary to allege the terms of the contract and its consideration; the action sounding in tort and the allegation of employment being matter of inducement only. Physicians and Surgeons — Instructions Approved. 2'. In dentistry malpractice case, instructions given held proper. Trial — Covered Instructions Properly Refused. 3. Requested instructions covered by the instructions given are properly refused. Evidence — Real Evidence, Produced to Arouse Feeling, is Inadmissible. 4. When real evidence is produced merely for the' purpose oí arousing feeling, it is error to admit it. 1. Duty and liability of dentist to patient, see notes in 93 Am. St. Sep. 667; Ann. Cas. 1914A, 273; Ann. Cas. 1918C, 1190. Physicians and Surgeons — Evidence of Effect on Plaintiff’s Eyesight Held Admissible. 5. In. dentistry malpractice case, plaintiff’s testimony that her eyesight began to fail, that she began to suffer from headaches, and that the condition of her health and nerves became impaired after the operation complained of, held admissible, where, from other evidence, the jury might infer that such conditions resulted: from injuries from the operation. Evidence — Conclusions as to Matter of Law Inadmissible. ■0. In a dentistry malpractice -case, it was proper to refuse to permit defendant to ask a witness: “What kind of skill and ability is a dental surgeon supposed to exercise in a ease brought to him?” as the question called for a conclusion of law. Evidence — Permitting Inspection of Plaintiff’s Jaw Held Proper. 7. In a dentistry malpractice case, held it was proper to allow the jury to inspect plaintiff’s injured jaw. Evidence — Inspection of Injury Usually Allowed. 8. In -personal injury eases, it is the usual practice to permit the jury to inspect the injured part. Evidence — Complaints of Patient to Physician Held Admissible. 9. In dentistry malpractice ease, testimony of the physician of complaints made by the plaintiff about her eyes, during the time he was treating her for the extraction of the tooth, were admissible, as complaints made by a -patient to a physician as to pain and suffering -assist the physician in diagnosing the case. Physicians and Surgeons — Evidence of Condition of Optic Nerve of Plaintiff Held Admissible. 10. In dentistry malpractice action, testimony of a doctor as to the condition of plaintiff’s optic nerve as found by him upon examination one year subsequently to the extraction of the tooth held admissible on the question of damages; there being testimony connecting this condition with the tooth extraction. Evidence — Question to Expert as to Qualification of Another Expert Held Improper. 11. In dentistry malpractice ease, the court properly refused to allow a doctor, a witness for defendant, to answer, over plaintiff’s objection, the question, “Would an ordinary medical practitioner that has never studied dentistry or had any experience in dentistry be qualified, in your judgment, to testify as an expert upon dental operations?” as the question related to the qualifications of another physician than the witness, a quection of law for the court. 9. Admissibility of testimony of physician as to statements made to him by patient relating to history of the case, see note in 14 Ann. Cas. 449. Husband and Wife — Husband Improper Party in Wife’s Action for Malpractice. 12. Action for damages for dentist’s malpractice in treating plaintiff wife, being one to recover for a wrong against her person under Section 30, Or. L., the wife, and not the husband, was the real party in interest, and he was neither a neeessary nor proper plaintiff. Appeal and Error — Objection must Initiate Below. 13. Erroneous joining of husband in wife’s suit, not being brought to attention of court below, was not reviewable, as the Supreme Court has no power to review on appeal matters of mere practice to which the lower court’s attention was not directed. Witnesses — That Cross-examination is upon Matters not Within Issues not Available Objection to One Bringing Such Matters into Direct Examination. 14. A ruling, made upon a question asked on cross-examination as to a matter which is immaterial because it is not within the issues, ought not to be available as grounds for an exception to one who, in the first instance, on his direct examination, offered testimony upon such immaterial matter, if the question asked on cross-examination was one which would have been proper, had the matter been material. Evidence — In Malpractice Case, Eliciting Expert’s Opinion on Skill of Operation Held Reversible Error. 15. In dentistry malpractice ease, admitting the testimony of plaintiff’s family physician, who saw the, operation complained of, that it was unskillful, held reversible error, as invading the juiy’s province.
102 Or. 289Stanfield v. Arnwine (1921)Reversed and Remanded
Contracts — Contract for Sale of Crop of Lambs Performed by Tender of Crop Notwithstanding Statement as to Number. 1. A contract for the sale of about 3,800 head of mixed lambs, being all of the seller’s 1918 crop, called only for delivery of the full crop of lambs, though numbering only 2,800. Evidence — Evidence as to Lambs Delivered Under Previous Contract Admissible to Show What was Meant hy Descriptive Language. 2. Under Sections 717 and 718, Or. L., providing that circumstances may be shown in construing an instrument and that any technical, local or peculiar signification of the terms used may be shown, where a contract for the sale of Iambs provided that they should be of “good size and merchantable condition’’ and the seller had sold his crop of lambs for the previous year to the buyer, evidence as to tbe sort of lambs delivered the year before was admissible as tending to show what the parties meant by tbe quoted expression. Sales — Contract for Sale of Crop of Lambs Held to Call for Lambs of the Kind Specified. 3. A contract for the sale of the seller’s crop of lambs to be of good size and merchantable condition required tbe delivery of lambs of such size and condition whether stall fed or range fed, and was not satisfied by the delivery of the particular lambs intended, irrespective of their quantity or condition, and henee evidence as to where the seller’s sheep were kept, preceding the time for delivery and who was in charge of them, was immaterial. 1. Validity and construction of contract for sale of season’s output, see notes in 1 A. L. R. 1392,; 9 A. L, R. 276. Contracts — Evidence—Evidence as to Seller’s Understanding as to Meaning of Contract Inadmissible. 4. In an action on a contract for the sale of lambs; to be of “good size and merchantable condition,” the seller’s testimony as to his understanding of the contract as to the weight of the lambs was inadmissible, as the contract was to be interpreted by the court, unless there was evidence of the surrounding circumstances or peculiar meaning of the terms used, making a question of mixed law and fact for the jury. Custom and Usages — Testimony That Witnesses had Never Heard That Description of Lambs Required any Certain Weight, etc., not Admissible, not Proving a Custom. 6. In an action on a contract for the sale of lambs, to be of “good size and merchantable condition,” where the buyer introduced expert testimony as to what the weight of such a lamb should be, the seller might have introduced similar testimony, but could not introduce testimony that the witnesses had never heard that “good size and merchantable condition” meant that lambs should weigh any certain number of pounds, or had never heard of a buyer rejecting an entire band of sheep on account of their weight; such testimony not tending to prove a custom. Sales — Reputation of Seller of Lambs and Witness as to Being Good Sheepmen Inadmissible on Issue of Breach by Tendering Poor Quality. 6. In a buyer’s action on a contract for the sale of the seller’s crop of lambs to be of good size and merchantable condition, where the buyer had rejected the lambs tendered as not in compliance with the contract, evidence as to the reputation of the seller and one of his witnesses as to being good sheepmen was inadmissible. Sales — Evidence as to State of Market and Market Value Admissible Under Counterclaim for Refusing to Accept. 7. In a buyer’s action for breaeh of a contract for the sale of lambs, brought on the theory that those tendered did not comply with the contract, where the seller counterclaimed for the buyer’s refusal to accept those tendered, evidence as to the state of the market and the market priee of such lambs at the time and place of delivery was admissible in support of the counterclaim. Sales — Measure of Damages for Refusing to Accept Stated. 8. If lambs tendered by a seller were of the kind and quality specified in the contract, and the buyer wrongfully refused to receive and pay for them, the measure of the seller’s general damages was the difference between the contract price and the lesser market price at the time and plaee of delivery. Witnesses — Cross-examination of Seller as to Advance Required in Case of Sale of Smaller Number of Lambs Held Immaterial. 9. As a contract for the sale of about 3,800' lambs, being the seller’s 1918 crop, only called for delivery of the entire crop, though numbering only about '2,800, cross-examination of the seller as to how much advance on the purchase price he would have required if he had offered to sell only 2,800 was immaterial. Witnesses — Cross-examination, of Defendant Properly Excluded as Calling for Argument in Favor of Adverse Party. 10. Where under a contract for the sale of about 3,800 lambs, being the seller’s 1918 crop, the seller tendered only about 2>,800, cross-examination of him as to how much advance he would have received if he had offered to sell only 2,800 was properly excluded, as amounting to an effort to require the seller to advance an argument to the jury in favor of the buyer. Evidence — Party’s Instructions to Agent Held Self-serving. 11. In an action on a contract for the sale of lambs, the buyer’s telephonic instructions to his agent in reference to buying all the lambs he could get was inadmissible, on behalf of the buyer, as a self-serving declaration. Sales — -Instructions as to Abandonment of Contract Held not Within the Issues. 12. Where a buyer of lambs rejected those tendered as not in compliance with the contract, and sued the seller for breach of the contract, and the seller counterclaimed for the buyer’s refusal to accept the lambs tendered, there was no issue as to abandonment of the contract by the buyer, and an instruction submitting that issue was erroneous. Appeal and Error — Issues on New Trial Limited by Holding on Appeal. 13. ••In a buyer’s action for breach of contract, with counterclaim by the seller for the buyer’s breach, the holding on a former appeal that instructions as to abandonment of the contract were not within the issues was the law of the case, to which the parties were bound to conform their proceedings on a new trial. Sales — Buyer Entitled to Recover Earnest-money and Expenses upon Seller’s Breach. 14. If a buyer of lambs was without fault in the performance of the contract on his part and was ready, able and willing to receive and pay for lambs answering the description prescribed by the contract, but the seller tendered lambs not complying therewith, and failed to deliver lambs of the description called for, the buyer was entitled to recover the earnest-money paid and such reasonable expenditures as he necessarily made in his effort to carry out the contract.
102 Or. 305State v. Williams (1921)Reversed and Remanded
From Grant: Dalton Biggs, Judge. In Banc. On November 8, 1920, tbe defendant, Charles W. Williams, was jointly indicted with Everett Snyder and Robert M. Williams, and charged with the crime of larceny by stealing twelve spools of barbed wire, the property of Jack Vaughn and Orin Ledgerwood, committed on February 23, 1918. Defendant was tried jointly with his codefendant, Robert M. Williams. The latter was acquitted, but defendant was found guilty and judgment of conviction entered against him. Prom this judgment defendant prosecutes this appeal. At the close of the state’s case, the defendant interposed a motion for an order directing a verdict of not guilty as to defendant, and assigned as a reason for the motion that “there is no evidence connecting or tending to connect the defendant Charles W. Williams with the commission of the crime charged in the indictment.” The action of the Circuit Court in overruling the motion is assigned as error.
102 Or. 314Boise-Payette Lumber Co. v. Dominican Sisters of Ontario & German American Trust Co. (1921)Reversed and Suit Dismissed
Mechanics’ Liens — Statutory Requirements must be Clearly Complied With. 1. The right to a mechanic’s lien is statutory, and the statutory requirements must be strictly complied with. Mechanics’ Liens — Right to may be Waived. 2. The right to a mechanic’s lien may be waived by one entitled thereto. Mechanics’ Liens — Materialman's Failure to Give Owner Notice of Material Furnished at Instance of Contractor Held Fatal. 3. Materialman’s failure to give owner written notice of delivery of material for use in construction of building at the instance of the contractor in charge of the construction of the building, within five days after the date of the first delivery as required by Section 10191, Or. L., held to defeat creation of lien. Mechanics’ Liens — Materialman’s Notice to Owner Unnecessary Where Material was Furnished at Instance of Owners. 4. Materialman would have been entitled to lien for lumber used in the construction of a building notwithstanding failure to give owners written notice of the delivery of the lumber under Section 10191, Or. L., if the lumber had been furnished at the request of the owners. Mechanics’ Liens — Materialman Seeking to Assert Lien for Material Furnished Without Notice to Owner must Prove Contractor Ordered Material as Owner’s Agent. 5. Materialman seeking to foreclose lien for lumber furnished without giving owner the written notice required by Section 10191, Or. L., was required to prove that the contractor in ordering the lumber acted as the agent of the owners, and not as a contractor in charge of the construction of the building. Principal and Agent — Evidence of Appointment may he Either' Direct or Indirect. 6. Evidence of the appointment of an agent may be either direct or indirect. Principal and Agent — Circumstances, Apparent Relations, and Conduct of Parties Admissible on Issue of Agency. 7. The circumstances and apparent relations and conduct of the parties may be shown in evidence on issue of existence of agency. Mechanics’ Liens — Evidence Held Insufficient to Prove Contractor Ordered Lumber as Owner’s Agent. 8. In materialman’s action to foreclose lien for lumber delivered without giving owner the notice required by Section 10191, Or. L., in which materialman claimed that notice was unnecessary because contractor at whose instance material was furnished' ordered material as owner’s agent, evidence held insufficient to prove such agency. Principal and Agent — That One has Assumed to Act as Agent is not Sufficient to Show Agency. 9. The mere fact that one has assumed to act as agent is not sufficient to show ageney unless his acts are so open and notorious that it is evident that they must be known to the principal and assented to by him. Appeal and Error — Case Determined Wholly on the Record. 10. Supreme Court will determine the case on appeal wholly upon the record.
102 Or. 327Boyd v. Olcott (1921)Affirmed
Constitutional Law — Whether Amendment Properly Adopted is Judicial Question. 1. Whether a constitutional amendment has been legally adopted by the legislature and approved by the people is for the courts to investigate and determine, unless the power to do so is lodged elsewhere by the express terms of the Constitution. Constitutional Law — No Conclusive Presumption from Governor’s Proclamation, of Regularity in Adopting Amendment. 2. Under Constitution, Article XYU, Section 1, as to adoption of constitutional amendments, the Governor’s proclamation, declaring an amendment adopted, cannot give rise to a conclusive presumption of regularity in the adoption of the amendment. Constitutional Law — Constitution Generally Construed as Mandatory, not Directory. 3. Constitutional provisions are usually construed as mandatory, not directory. Constitutional Law — Failure to Observe Requirement Fatal to Amendment. 4. The provisions of Constitution, Article XYU, Section 1, as to amending the Constitution, are mandatory, and a failure to observe such requirements is fatal to a proposed amendment, even though the electors have with practical unanimity voted for it. Constitutional Law — Requirement That Amendment be “Entered in” Legislative Journals is Mandatory. 5. The requirement of Constitution, Article XYII, Section 1, that a proposed amendment be “entered in” the legislative journals is mandatory. Constitutional Law — Presumption from Enrolled Bill Stated. 6. While, as regards the regularity of adoption of a constitutional amendment under Constitution, Article XVII, Section 1, the journal entry rule in force in Oregon permits the impeachment of an enrolled bill by the legislative journals, yet the enrolled bill presents itself behind the shield of a presumption that it has been regularly enacted, which, while not conclusive, is overcome only by a clear showing of violation of the constitutional requirements. 3. Mandatory ’ or directory nature of constitutional provision for amendment, see note in 15 Ann. Cas. 786. 6. On eonclusiveness of enrolled bill, generally, see notes in 51 Am. Dec. 619: 85 Am, Dec. 357; 9 Ann. Cas. 582; 20 Ann. Cas. 350; Ann, Cas. 1918D, 253; 23 L. R. A. 340; 40 L. R. A. (N. S.) 1. Constitutional Law — Mere Silence of Legislative Journals Raises No Presumption of Irregularity. 7. It will not be presumed from tbe mere silence of the legislative journals that either house has exceeded its authority or disregarded constitutional requirements in the passage of legislative acts. Constitutional Law — Identifying Reference Sufficient Compliance With Requirement That Amendment be “Entered in” Legislative Journals. 8. An identifying reference is a full compliance with the requirement of Constitution, Article XVII, Section 1, that constitutional amendments be “entered in” the legislative journals; the quoted, phrase meaning any kind of entry sufficient to afford identification. Constitutional Law — Presumption That Joint Resolution Proposing Amendment was “Entered in” Senate Journal not Overcome. 9. House Joint Resolution No. 12 of the 1921 session, proposing the constitutional amendment, Article XI-C, appears in the senate journal only by a printed copy of the original resolution, without the amendments made thereto in the house, although the senate journal does not contain any affirmative declaration that the printed copy inserted in the senate journal was a copy of the resolution received from the house, so that the senate journal contains only an implication that the printed copy is a copy of the form of resolution adopted by the senate. Held, that such implication is insufficient to outweigh the presumption attaching to the enrolled resolution that the resolution as amended was “entered in” the senate journal, as required, by Constitution, Article XVII, Section 1, especially in view of admitted legislative practice, so that Constitution, Article XI-C was validly adopted1. Constitutional Law — Presumption in Favor of Validity of Constitutional Amendment. 10. "Under Constitution, Article IV, Section 13, where house journal affirmatively showed the senate amendments to a house bill were concurred in by the house, it would be presumed, in the absence of affirmative showing to the contrary, that the vote was in fact taken by yeas and nays, and that the constitutional majority voted for concurrence. Statutes — Statute Held not Void Because not Submitted to People. 11. "Where a statute contained a provision for its submission to the people at an election, but the legislature did not in fact direct that it be submitted, and treated the provision as superfluity, and the statute contained nothing requiring its submission to the people, held that it was not necessary to submit it. 8. On construction of requirement that proposed constitutional amendment be entered in journals, see notes in 1 Am. St. Rep. 21; 3 Ann. Cas. 756; 6 A. L. R. 1227. Statutes — Statute not Invalid Because Passed in Anticipation of Constitutional Amendment. 12. Laws of 1931, Chapter 201, in aid of World War veterans, is not invalid because not passed subsequent to or pursuant to Constitution, Article XI-C. Constitutional Law — Existing Statute not Void Because not Identified by Constitutional Amendment. 13. Laws of 1921, Chapter 201, in aid of World War veterans, is not void because not identified by Constitution, Article XI-C for Section 4 of the latter ratifies, adopts, and confirms “any act * * which purports to execute and carry into effect” its provisions, which language includes Chapter 201. 13. On validation of unconstitutional statute by constitutional amendment, see note in 38 L. H. A. (N. S.) 77.
102 Or. 382Hooper v. Pennick (1921)Affirmed
From Union: J. W. Knowles, Judge. In Banc. In August, 1919, tlie defendant leased to plaintiff by verbal lease bis Bed Apple Farm in Union County, Oregon, for tbe period of one year. Tbe stock of tbe defendant and plaintiff were to be kept on the farm.
102 Or. 389Hall v. Brown (1921)Reversed and Remanded
Witnesses — Error to Permit Witness to Refresh Memory by Writing not Made by Him and to Admit It in Evidence. 1. Under Section 859, Or. D., providing that a witness may refresh his memory by anything written by himself, ete., it was error to permit a witness to refresh his memory as to the quantity of grain raised by him by reference to a memorandum made by the threshers and not made under the witness’ direction, and to admit such memorandum in evidence. Witness — Cannot Produce Memorandum Where He has Independent Recollection of Fact. 2. A witness having an independent recollection of a faet is not permitted to produce a memorandum under Section 859, Or. L., authorizing a witness to refresh his memory by anything written by himself, ete. Witnesses — Party Producing Witness cannot Use Writing Used to Refresh Recollection or Read It to Jury, but Opposite Party may. 3. A memorandum used by a witness to refresh his memory must be produced for the inspection of tlie adverse party, who may cross-examine the witness upon it, and may read it to the jury, but that privilege is not accorded to the party producing the witness. Landlord and Tenant — Amount of Grain Grown on Other Land not Admissible When Conditions not Shown to be Similar. 4. In a tenant’s action against the landlord for ousting him from possession and destroying his crop, the testimony of a witness as to the amount of grain grown by him the same year was not admissible, where it was not shown that the variety of oats sown, the amount per acre, the method of cultivation employed, the time they were sown, or the quality of the soil was similar. Evidence — Testimony That Witness Judges or Presumes Conditions of His and Plaintiff’s Crops Were Similar is Inadmissible as Conclusion. 5. Testimony of a witness that he “judges” that plaintiff’s method of preparing his land for a crop was nearly the same as his own, or that he “presumes” defendant sowed his grain broadcast, is not admissible to show the similarity of conditions in an action for the destruction of plaintiff’s crop, as the witness should state the facts, and not give his opinion. 2. Right to use memoranda to refresh memory, and right of opposite party to inspect same, see notes in 98 Am. Dec. 619; 35 Am. Rep. 56; 9 Ann. Cas, 560. Evidence — Admission of Evidence of Experiments or Similar Occurrences Discretionary, but not Unless Conditions Substantially Alike. 6. At best, it is within the discretion of the court to admit any testimony whatever about experiments or similar occurrences, but in any event the conditions must appear to be substantially the same, and unless this appears it is not within the discretion of the court to admit the evidence. Damages — Measure of Damages for Destruction of Growing Crop is Value at Time of Trespass. 7. In a tenant’s action against his landlord for ousting him from possession and destroying a crop planted by him, the measure of damages for the destruction of the crop was its value at the time and place of the trespass, and not its value when matured. Damages — Evidence as to What Crop Destroyed Would have Produced may be Given by Qualified Witnesses. 3. Though the measure of damages for destruction of a growing crop is its value at the time of the trespass, evidence may be given by those qualified to express an opinion about what such a growing crop would produce under the conditions attendant up'on its planting and growth. Landlord and Tenant — Instruction That Settlement was not an Issue in the Case Held Misleading. 9. In a tenant’s action against his landlord for ousting him from possession and destroying his growing crop, where the defense was that it was agreed that the tenant should surrender possession and the landlord should pay him a reasonable compensation for his labor and the grain used for seed, an instruction that defendant’s testimony showed there was no subsequent settlement, and therefore that was not an issue in the ease, was liable to mislead. Landlord and Tenant — Agreement That Tenant Would Surrender and Landlord Pay Him for his Work Terminates Lease and Prevents Action for Trespass. 10. If a landlord and tenant agreed, after the tenant had planted a erop, that the tenant should give up the land and the landlord should pay him a reasonable compensation for his labor and the seed, the lease was thereby terminated, and the tenant could only rely upon the new agreement, and could not sue for trespass for the destruction of the growing crop. ■6. On making experiments in presence of jury as a mode of adducing evidence, see notes in 7 Ann. Cas. 216; Ann. Cas. 1912B, 296; 15 L. R. A. 221. On experimental evidence as affected by similarity or dissimilarity of conditions, see notes in 53 Am. St. Rep. 375; 8 A. L. R. 18. 7. Measure of damages for injury to growing erops, see notes in 140 Am. St. Rep. 309; 6 Ann. Cas. 949; 12 Ann. Cas. 782.
102 Or. 398Hunt v. First National Bank (1921)Affirmed
Trover and Conversion — "Conversion” Defined. 1. “Conversion” is any distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein, such as a tortious taking of another’s chattels or any wrongful exercise or assumption of authority, personally or by procurement, over another’s goods, depriving him of the possession, permanently or for an indefinite time. Trover and Conversion — Allegation of Ownership Essential. 2. Under Section 67, Or. L., requiring a complaint to contain a plain and coneise statement of facts constituting the cause of action, plaintiff in an action for conversion must allege some kind of property in himself at the time of conversion. Pleading — Statute as to Continued Existence of Proved Fact Construed as Stating Rule of Evidence, and not of Pleading. 3. Section 799, subdivision 33, Or. L., stating that a thing onee proved to exist continues as long as usual with things of that nature, states a rule of evideh.ee, and not of pleading. Trover and Conversion — Allegation of Ownership Held Insufficient. 4. In an action for conversion of bonds, a complaint alleging that on November 19th plaintiff was the owner and possessed the bonds, and that on or about December 16th defendant converted them, does not sufficiently allege that the ownership of the property was in plaintiff at the time of conversion.
102 Or. 401State ex rel. Rudd v. Ringold (1921)Affirmed
From Umatilla: Gilbert W. Phelps, Judge. In Banc. This is a mandamus proceeding instituted by plaintiff, a citizen, resident and voter of the City of Pendleton, because of the erection of a wooden building contrary to the ordinances of the City of Pendleton. The relator, as sole plaintiff, originated the action.
102 Or. 407Johnson v. Johnson (1921)Affirmed
Prom Multnomah.: John McCourt, Judge. Department 1. This is an appeal from a supplementary order of the Circuit Court modifying a former order in regard to the custody of the minor children of plaintiff and defendant.
102 Or. 414Poole v. Vining (1921)Reversed and Remanded
From Benton: GL F. Skipworth, Judge. Department 1. This is an action to recover for labor which plaintiff alleges he performed for defendants. There are two causes of action set forth. The first is upon an account stated, for the sum of $153.50. As to this cause the answer admits that the account was stated as alleged, but denies the averment of nonpayment.
102 Or. 422Yarbrough v. Carlson (1921)Affirmed
Evidence — Evidence of Plaintiff’s Statement of Her Condition to Physician for Furpose of Treatment Competent. 1. In an action for injury from colliding with an automobile, evidence of a physician that plaintiff complained of -pain in her side, when narrating to him what she claimed1 to be her condition, and the locality arid character of the -pain, for the purpose of securing from the witness medical advice and treatment, was competent. Evidence — Physician’s Opinion as to Permanency of Injury Competent. 2. In action for injury from colliding with an auto at a crossing, where a physician testified that he had made physical examination, and required X-ray photographs to be taken to enable him to determine whether any injury -appeared in plaintiff’s intestines, the witness’ conclusions as to the injury and opinion as to its -permanency are competent. Damages — Plaintiff having Stated No Injury Prior to Collision, Evidence of Her Condition at Any Time from Injury to Trial Admissible. 3. In an action for injury from colliding with an automobile, where plaintiff had stated that she had not suffered any injury prior to the collision, evidence of her physical condition at any time after the injury to the time of trial was admissible to show the extent and effect of the injury, if resulting from the negligence charged. Evidence — X-ray Photographs of Internal Injury Admissible. 4. In personal injury action, where injuries claimed are internal, X-ray photographs, the accuracy of which has been established or conceded, are admissible to show plaintiff’s physical condition after the injury. Damages — Evidence of Injury Held Sufficient for Jury. 5. In action for injury from colliding with an automobile at a crossing, evidence of injury held sufficient for jury. Municipal Corporations- — Rules for Travel Do not Include Pedestrians. 6. The rules for vehicular travel on streets do not apply to pedestrians, and defendant’s request to charge the jury with respect thereto was properly refused. 4. On use of X-ray photographs as evidence, see notes in 11 i Am. St. Rep.. 442; 1 Aim. Cas. 161; 10-Ann. Cas. 962; 8 A. L. R. 59; 51 I>. R. A. (N. S.) 858. Municipal Corporations — Evidence of Negligence in That Defendant’s Auto was Equipped With Weak Brakes Held Sufficient for Jury. 7. In an action for injury from a collision with automobile, in which plaintiff alleged that defendant’s automobile was equipped with weak and defective brakes, evidence held sufficient for jury. Municipal Corporations — Rule Stated for Auto Driver and Pedestrian at Crossing. 8. The driver of an automobile, on approaching an intersection of streets, with the intention of turning thereat, is required to have his car under such control as to yield the right of way to a pedestrian who is crossing the intersection, and who is in the line of travel such automobile driver intends to take, or in such proximity thereto that, if he continues, he will reach the same in advance of the auto. Trial — Any Error in Instruction on Defendant’s Duty to Stop or Control Auto at Crossing Cured by Charge as a Whole* 9. In an action for injury from colliding with defendant’s auto, an instruction that might be subject to the construction that it prematurely imposed upon defendant the duty to stop or control his auto, so as to permit plaintiff to cross in advance, when examined in connection with the entire charge, could not have misled the jury. Municipal Corporations — Degree of Care and Duty of Autoists to Pedestrian at Crossing Stated. 19. Where plaintiff and defendant were traveling toward each other on the same street, and without some clear indication plaintiff could not have anticipated that defendant intended to turn across her path, and when he formed that intention and executed it, he was required to exercise reasonable care to avoid injuring plaintiff; and, if plaintiff had right of way, it was defendant’s duty to reduce his speed, or stop* if necessary, to allow plaintiff to pass in safety. 8. On reciprocal duty of operator of automobile and pedestrian to use care at intersection of streets, see notes in 4 Ann. Cas. 499; 13 Ann. Cas. 463; 21 Ann. Cas. 652; Ann. Cas. 1916E, 666; 3S L. R. A. (N. S.) 487; 42 L. R. A. (N. S.) 1178. On duty of pedestrian before crossing street to look for automobiles approaching on intersecting street, see note in 9 A. L. R. 1248.
102 Or. 431State v. Howard (1921)Affirmed
From Malheur: Dalton Biggs, Judge. In Bane. The defendant was indicted, tried and convicted of the crime of murder in the first degree committed upon the person of George B. Seeny, commonly known as George B. Sweeny. It was alleged that the offense was committed by the defendant on September 14, 1920, in the county of Malheur, Oregon, by striking deceased divers blows on the head with a piece of iron called a wrench.
102 Or. 459Willamette Box & Lumber Co. v. Wheeler (1921)
Appeal and Error — Recital Evidence was Heard Requires Finding Without Bill of Exceptions. 1. On appeal from a judgment rendered after trial by the court, a recital in the judgment entry that evidence on behalf of both parties was heard shows the necessity of findings of fact by the judge without a bill of exceptions. Trial — Statement Plaintiff is Entitled to Nothing, and Defendant Should have Judgment, is Conclusion of Law. 2. The statement in a judgment entry that plaintiff was entitled to nothing, and that defendant should have judgment, is a conclusion of law only, and not even a general finding of fact. Trial — Judge must Make Findings Equivalent to a Special Verdict. 3. In an aetion tried to the court without a jury, the judge must make findings of fact equivalent to a special verdict, even without the request of either party, and a judgment for defendant, rendered without such findings of fact, must be reversed.
102 Or. 466Allen v. Dodge (1921)Affirmed
Bankruptcy — Evidence Held to Show Grantee Paid. Adequate Consideration from Her Own Money. 1. In a suit by a trustee in bankruptcy to set aside as fraudulent ■conveyances made to tbe fiancée of tbe debtor of lands in wbicb tbe debtor was alleged to have an interest, the fianeée’s uncontradieted testimony that she paid for the conveyances a sum of money from her own earnings, which the weight of the other evidence showed was an adequate price for the land, establishes that the conveyances to her were for valuable consideration. Fraudulent Conveyances — Allegation Defendant Holds Property With Intent to Defraud is Insufficient. 2. Under Section 10174, Or. L., providing that the provisions of that chapter on fraudulent conveyances shall not impair the title of a purchaser for valuable consideration, unless he had previous notiee of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of grantor, an allegation merely that the purchaser was holding the title with intent to defraud the creditors of a previous grantor is insufficient.
102 Or. 472Acton v. Lamberson (1921)Reversed and Decree Entered
Tenancy in Common — Holding of One Cotenant is Possession of All. 1. A eotenant in possession holds possession for the benefit of the other eotenants. Adverse Possession — Possession of Heirs not Adverse to Possession of Purchaser at Administrator’s Sale. 2. Possession of heirs is not adverse to a purchaser at an administrator’s sale for the payment of debts, because they take subject to the payment of the ancestor’s debts. Judgment — Directness of Attack Independent of Which Party Attacks. 3. Whether an attack upon a judgment or decree is direct or collateral does not depend upon whether the attack is made by plaintiff or defendant, in view of Section 390, Or. L. Judgment — Attack on Administrator’s Sale Held Direct. 4. In suit to quiet title by purchaser at administrator’s sale, where the answer, as authorized by Section 390, Or. L., attacked the proceedings of the probate court and the acts of the administrator in obtaining an allowance of his own claim and selling the real estate in question to satisfy it, held, that the answer, which was in the nature of a complaint in equity, was a direct, and not a collateral, attack on the probate proceedings in question. Executors and Administrators — Sale to Administrator’s Wife Held Void. 5. Where an invalid claim against a decedent was disallowed by the decedent’s administrator, and, after the administrator’s removal, the claimant had himself appointed administrator of the decedent’s estate, allowed his own claim, then waited for five years when he procured an order for sale of decedent’s realty, and sold it to his wife, the sale was void, under Section 1276', Or. L., prohibiting purchases, directly or indirectly, by administrators. Executors and Administrators — Purchase by Administrator or Executor is Void. 6. An executor or administrator is held to strict compliance with Section 1276, Or. L., prohibiting purchases of the property of the estate by an executor or administrator, directly or indirectly. 4. What are collateral attacks on judgments, see note in 23 Am. St. Hep. 104. 5. On right of administrator or executor to purchase at his own sale, see notes 'in 12 Am. Dec. 85; L. K. A. 1918B, 7. Executors and Administrators — Purchase by Administrator’s Wife not Conclusively Presumed for Herself. 7. Where administrator’s wife purchases at administrator’s sale, there is no conclusive presumption arising from the fact that she continued to hold the purchased property in her own name and did not transfer it to the administrator, that she purchased for herself, and that the purchase was not one indirectly by the administrator, in violation of Section 1276, Or. L. Executors and Administrators — Fraudulent Purchaser at Administrator’s Sale not Subrogated to Eights of Creditor on Vacating Sale. 8. Where administrator, to satisfy his own invalid claim, sold property of his decedent to his, the administrator’s, wife, and the sale was set aside as violating Section 1276, Or. L., the wife, as purchaser, was not subrogated to the rights of creditor of decedent’s estate; the sale being fraudulent. ON PETITION FOB BEHEABING. Pleading — Allegation Held not a Denial of Guardianship at Time of Making Guardianship Sale as Alleged in Answer. 9. Where defendant in answer alleged that on March 11, 1908, S., then being the duly appointed, qualified, and acting guardian of an estate, and being in possession of it, filed in a certain County Court a petition in writing for an order of sale permitting him to sell land belonging to his minor wards, and plaintiff by reply admitted that on March 11, 1908, 8. as guardian filed his petition for the sale of real estate, but denied his being in complete possession, and denied generally and specifically each and every other allegation contained in the answer, the allegation in the reply was not a denial that 8. was duly qualified and acting guardian at the time of making the guardian’s sale of the real estate.
102 Or. 496Bakke v. Johnson (1922)Affirmed
Pleading — Allegation of Existence of Road Held Sufficient. 1. An allegation in the complaint “that appurtenant to and abutting on said property on the south side there was at all times, and now is, a public road about 30 feet in width,” states an ultimate fact, and not a conclusion of law. Highways — Relief to Abutting Owner on Account of Obstruction Held to Depend on Question Whether Injury is to Himself as Distinguished from General Public. 2. Relief to an individual on account of the obstruction of a highway in front of and abutting on his premises depends on whether it impairs his private right of ingress to and egress from his holding, which constitutes an injury to himself not suffered by the general traveling public, and forms a basis for an action for damages against the tort-feasor who makes the obstruction, or in proper eases, for a suit to enjoin the continuance of the nuisance. Dedication — A Public Road may be Established by Dedication. 3. A public road, as distinguished from what are known as county roads, may be established by dedication. 2. Right of private individual to abate obstruction preventing or interfering with access to street, see note in 11 Ann. Cas. 287. Dedication — Sale of Land from Plat With Streets Marked Thereon Constitutes Dedication of Streets. 4. When a land owner plats the land and sells lots with reference to the plat, he thereby dedicates the streets marked thereon. Dedication — When Sale of Land from Map With Streets Marked Is Disclosed, It is Sufficient to Take Question of Dedication to the Jury. 5. When a sale of land from a map with streets marked thereon is disclosed, it is enough to take the case to the jury on the question of a road created by dedication. Dedication — Evidence Held Sufficient to Go to Jury. 6. Evidence of dedication of a highway as a public road and of plaintiff’s injury from an obstruction thereof, held sufficient to take the ease to the jury.
102 Or. 502Marshall v. Olson (1922)Reversed and Remanded
Trial — Statement of Counsel not Supported 1 y Evidence Should be Stricken. 1. In aetion for injuries received in collision of automobiles at street intersection, the court erred in not striking out on motion statement of plaintiff’s counsel on eross-examination of defendant to the effect that any car with good brakes could be stopped within 20.8 feet; there being no evidence to support such statement. Appeal and Error — Exception to Argument of Counsel not Addressed to Action of Court Insufdcl'snt. 2. Where defendant’s counsel, immediately after close of argument of counsel of plaintiff before jury, stated that he would like to save an exception to the statement made by counsel in his argument to the effect that defendant could have stopped his car at 20.8 feet at the rate of speed at which he was going, on the theory that there was no testimony in the record on which that argument could be based, and court answered: “The jury are to decide the ease on the evidence in the cáse, and if there should have been in either argument assertions made, not supported by the evidence, you should confine yourselves to the evidence. If the question should arise within what distance they could have stopped, you are to determine it from all the facts appearing in evidence” — to which defendant made no objection, no question was raised for review, since an exception must go to the action or nonaetion of the court, not that of opposing counsel. Evidence — Offers to Compromise not Admissible. 3. Court erred in permitting plaintiff in personal injury case to ask the wife of defendant whether she did not offer to settle for a certain amount, there being no admission of any particular facts, under Section 879, Or. L. Municipal Corporations — Defendant Held not Entitled to Instruction on Last Clear Chance. 4. In an action for injuries to plaintiff, who was a passenger in an automobile driven by her husband, which collided with defendant’s automobile at a street intersection, defendant was not entitled to an instruction on the last clear chance doctrine, where it was not shown by evidence or pleading that plaintiff was in any way authorized to control the car; the marital relationship not of itself being sufficient to impute to her any negligence of her husband. Municipal Corporations — Duty of Automobilist to Exercise Care to Avoid Results of Another’s Negligence — Last Clear Chance Rule not Available Unless Pleaded and Proved. 5. Where automobilists meet at street intersections, there is a duty incumbent on each party alike to excreise reasonable care to avoid the results of any negligence on the part of the other; but in order to invoke the last dear chance doctrine, which may be invoked either by plaintiff or defendant, the facts showing it must be pleaded and proved. Municipal Corporations — Violation of Ordinance in Emergency is not Evidence of Negligence. 6. Violation of ordinances of a city relating to the matter of turning automobiles at intersections and the like is negligence por se, subject to the qualification that if it is necessary in an emergency under all the circumstances in order to avoid an accident to turn otherwise than the ordinance or law prescribes, it could not be counted upon as evidence of negligence or as negligence itself, but it must appear from the evidence that a sudden and perilous emergency was present sanctioning, in the judgment of a reasonably prudent man, the doing of the act which under other circumstances would be a technical breach of municipal regulations. 4. Imputability of contributory negligence of one spouse to the other, see notes in 110 Am. St. Rep. 296; Ann. Cas. 1912A, 647. 6. Emergency rule as applied to automobile drivers, see note in 6 A. L. R. 680.
102 Or. 513City of Portland v. Yates (1921)Reversed and Remanded
From Multnomah: Robert Tucker, Judge. Department 2. The defendant Pañi C. Tates, about November 29, 1916, procured from' the proper authorities of the City of Portland a permit to erect an electric sign at 125% Sixth. Street in that city, paying a small consideration for the permit. Pursuant to the permit defendant had the sign hung, and in all respects complied with the then existing city ordinances.
102 Or. 533Myrtle Point Mill & Lumber Co. v. Clarke (1922)Affirmed
Evidence — Approval of Minutes may be Shown by Paxol. 1. It may be shown by parol that minutes of a meeting of stockholders were approved at a subsequent meeting, though not stated in the minutes. Corporations — Demand for Payment of Installments of Stock Subscription not Necessary Where Agreement Fixes Time Therefor. 2. No demand for payment of installments of stock subscription is necessary where the agreement provides for the time for payment thereof. Appeal and Error — Admission of Carbon Copy Held Harmless if Error. 3. In an action by corporation against stock subscriber, it was harmless, if error, to allow introduction in evidence of carbon copy of letter showing demand for payment of the amount secured in the absence of a showing that the original eouid not be produced, where the subscription agreement stipulated the time for payment. Corporations — Not Necessarily Bound by Representations Made by Subscriber for Stock Before Organization — Subscriber not Entitled to Rely on Representations of Cosubscriber Where He Did not Plead Corporation’s Notice Thereof, or They Were Present in Cosubscriber’s Mind While Acting for It. 4. A corporation is not necessarily bound as to a subscriber for stock by false representations made by a cosubseriber before organization though with knowledge on his part of sueh statements, the cosubscriber became a director and secretary-treasurer, and the subscriber is not entitled to rely thereon in an aetion on his subscription where his pleading did not directly state that the corporation had notice of sueh false representations, or that they were present in the cosubscriber’s mind while acting for it. Trial — Instructions must be Supported by Pleadings. 5. There is no error in refusing an instruction academically correct where there is no pleading to sustain it. Corporations — Requested Instructions in Action on Stock Subscription not Sustained by Pleading. 6. In an action on a stock subscription, the court properly refused to instruct that, if defendant withdrew his name or notified a certain cosubscriber that he wanted it taken from the subscription list before fifty per cent of the stock was actually subscribed, the jury should find that he withdrew his name before the corporation accepted his offer, and he would not be liable, was properly refused whore the defendant pleaded that he did not ask for a withdrawal until the day after organization, and admitted signing the subscription paper, which showed fifty per cent of the stock subscribed. Corporations — Subscribers Participating in Organization cannot Contend They Withdrew Subscriptions. 7. Subscribers for stock who gave notice that they wished to withdraw, yet participated in organization of the corporation, and voted the shares subscribed, cannot contend that they withdrew, and their stock should be counted in determining whether or not fifty per cent was subscribed at time of the organization. Trial — Instructions Held not Contradictory. 8. In an aetion by corporation on subscription agreement, an instruction that, though some of the subscribers may -have given notice that they wished to withdraw the whole or some part of their subscription, yet if they went on and participated in the organization of the corporation, and voted the shares for which they subscribed in the first instance, then those shares should be counted as participating stock in making up the one-half necessary to be subscribed before organization, was not contradictory to other instructions, to the effect, that if the subscription had been withdrawn before the organization, then there was not enough stock subscribed to sanction an organization. Evidence — Subscription Agreement cannot be Varied by Parol, and Evidence of Condition Inadmissible. 9. A corporate stock subscription agreement or list is subject to Section 713, Or. L., providing that a writing is to be considered as containing all terms of the agreement, and in aetion by corporation thereon defendant subscriber cannot contend that the subscription agreement or list was in part conditional, and hence that fifty per cent of the stoek was not subscribed for, as appeared therein, in the absence of fraud, mistake, or invalidity of the agreement. Corporations — Signer of Subscription Agreement Estopped to Claim Subscription Conditional. 10. One signing stock subscription list or agreement cannot contend, as against the corporation or others, that his subscription was for collateral purposes merely, such as to make deficit necessary to be filled in order to validly organize. 7. Right to withdraw stock subscription, see notes in 16 Ann. Cas. 532; Ann. Cas. 1915C, 1113; Ann. Cas. 1916A, 699. 9. Admissibility of parol evidence to show conditional subscription to corporate stock, see notes in 19 Ann. Cas. 883; Ann. Cas. 1918C, 853.
102 Or. 545Hofer v. Carson (1922)Affirmed
Municipal Corporations — Act Authorizing Cities to Control and Regulate Keeping of Dogs Held. Valid Exercise of Police Power. 1. General Laws of 1919, page 273, authorizing cities to control and regulate the keeping of dogs, impose license fees, etc., is not in violation of Constitution, Article XI, Section 2, or Article IV, Section la, as an attempt to legislate on a matter of purely local concern, such act being a valid exercise of the state’s police power, since such regulation and control is a matter of equal concern to all the people of the state. Municipal Corporations — State Does not Surrender Police Power by Delegating Exercise of Same to City. 2. Though the state may delegate to a city the right to exercise its police power, it does not thereby surrender any part of such power; the legislative power of the state, whether exercised by the legislature or by the people at largo through the initiative and referendum, being paramount and supreme, whether the matter concerns the state at large or the city alone. Constitutional Law — Statute cannot be Set Aside Unless Clearly Unconstitutional. 3. No presumption of law can be indulged against the validity of a statute which, being presumed to be constitutional, cannot be set aside unless it clearly and unmistakably violates .some constitutional provision. Courts — In View of Federal Court Decisions Which are Binding, Law Authorizing Summary Destruction of Unmuzzled Dogs are not in Violation of Due Process Clause. 4. In view of federal court decisions, which, on the question whether a state law contravenes the federal Constitution, are binding on every state court, General Laws of 1919, page 273, authorizing the passage of city ordinances for the summary destruction of unmuzzled dogs, without notice to the owner, is not in violation of Constitution of the United States, Amendment 14, as depriving the owner of his property without due process of law, though dogs are recognized as property under Sections 1950, 9357 and 9358, Or. L. Licenses — Act Authorizing Dog License Fees Held not Unconstitutional. 5. General Laws of 1919, page 273, authorizing cities to impose license fees for keeping dogs, is not in violation of Constitution Article IX, Section 1, requiring that all taxes be levied and collected under general laws operating uniformly throughout the state; the purpose of the aet being not to impose a tax, but to license dogs and regulate the manner in which they may be kept within the state. Constitutional Law — Act Authorizing Reimbursement for Sheep Killed or Injured by Dogs not Unconstitutional as Granting Special Privilege to Owners of Sheep. 6. General Laws of 1919, page 273, authorizing cities to impose dog license fees to create a fund to reimburse owners of sheep and other domestic animals killed or injured by dogs, does not violate Constitution Article I, Section 20, by granting special privileges to such owners; the aet merely protecting them from the destruction of their property. 4. On constitutionality of statute or ordinance providing for destruction of animals, .see notes in 97 Am. Deo. 881; 8 A, L. R. 74. 5. On constitutionality of tax on dogs for benefit of sheep owners, see notes in Ann, Cas, 1912D, 879; 17 L. R. A, (N. S.) 855; 13 A. L. R, 829.
102 Or. 563State v. Dooley (1922)Affirmed
From Union: J. W. Knowles, Judge. In Banc.
102 Or. 569Smith v. Germania Fire Insurance (1922)Reversed and Remanded
From Yamhill: H. H. Belt, Judge. Department 2. This is an action at law instituted by Arthur N. Smith as payee named in a fire insurance policy, against Germania Fire Insurance Company of New York. One Arthur White was the owner of a two-story Mansard roofed frame building situate on the northwest corner of Third and “J” Streets, in McMinnville, Oregon, which building he occupied for drayage aud feed stable purposes.
102 Or. 579Larsen v. Lootens (1921)Motion Overruled
From Multnomah: George Tazwell, Judge. In Banc. This is a motion to dismiss an appeal for want of a sufficient undertaking.
102 Or. 603Rieger v. Harrington (1922)Affirmed
Curtesy — Burden on Husband to Show Eights. 1. The burden is on the husband to show the existence of facts entitling him to the curtesy. Curtesy — Descent and Distribution — Dower—Legislature may Declare Rules of Descent and Fix Estates of Husband and Wife. 2. The state has the right to regulate the tenure of real property within its limits, the modes of its acquisition and transfer, the rules of its descent, and to declare the dower or curtesy interest of wife or husband, if any, in the real property of the other within the state. Curtesy — Nonresident Husband has no Eights in Lands Disposed of by Wife. 3. Under Sections 10073, 10082, Or. L., a nonresident is barred from the curtesy in lands of which his wife was not seized at her death, and which she conveyed prior thereto. Statutes — Presumed Amendment Intends Change of Meaning in Particulars Wherein There is Material Change in Language. 4. By amending a statute the legislature demonstrates the intent to change the pre-existing law, and the presumption must be that it is intended to change the meaning of the statute in all the particulars wherein there is a material change in the language of the amended aet.
102 Or. 615Nicholas v. Yamhill County (1920)Motion Denied
Appeal and. Error — Transcript Sufficient to Give Jurisdiction Though Incomplete. 1. In suit to enjoin a tax proceeding prosecuted under Laws of 1915, page 205, transcript, though incomplete and unsatisfactory, held sufficient to give the Supreme Court jurisdiction of the appeal. Appeal and Error — Order Should Issue Directing Clerk Below to Send up Pleadings and to Prepare Exhibits. 2. Order should be issued from the Supreme Court, directed to the clerk of the court below, requiring him to send up the original pleadings and to prepare the exhibits and depositions and turn them over to attorneys for plaintiff appellant, as required by Laws of 1913, page 656, Section 1, Section 554, L. O. L., as amended by Laws of 1913, page 618. Evidence — Judicial Notice of Distance of Town from. City Taken. 3. The Supreme Court will take judicial notice that McMinnville is less than fifty miles from Portland, Oregon. Appeal and Error — Buie as to Service of Printed Abstract Sufficiently Complied With. 4. Where the transcript on appeal was filed in the Supreme Court July 23d, and the printed abstract was filed August 13th, accompanied with proof of service that an attorney for appellant August 11th mailed in Portland, Oregon, a copy of the abstract addressed to the attorney for the respondents at a town within fifty miles of Portland, postage prepaid, there was a sufficient compliance with Buie 6 of the Supreme Court (89 Or. 712, 173 Pae. viii). ON THE MEEITS. (203 Pac. 593.) Bridges — Legislature may Authorize Tax Levy on Besidents of Island Boad District to Pay Bridge Bonds. 5. The legislature may authorize a tax levy on residents of an island road district to pay bonds issued to build a bridge from which they derive the principal benefit. Statutes — Act for Bonding Island Boad Districts for Building Bridges Held not Unconstitutional Because Title Embraced All Boad Districts. 6. Sections 4741-4753, Or. L., held not in violation of Constitution Article IV, Section 20, as purporting to include all road districts and implying that bonds thereof may be issued for various purposes, though the act embraces only such districts as are composed entirely of an island in a navigable river, and limits tlie issuance of bonds to build bridges; the title apprising residents of such districts of the proposed legislation. Taxation — Jurisdiction to Restrain Collection of Tax not Invoked for Mere Illegality or Irregularity in Proceedings. 7. The jurisdiction of equity to restrain the collection of a tax cannot be invoked for mere illegality or irregularity in the proceedings; its jurisdiction being confined to cases where the tax itself is not authorized or is assessed on nontaxable property, the persons exacting it are without authority or have proceeded fraudulently, or some other ground of equitable interference is shown. Elections — Substantial Compliance With Statute as to Notice of Bond Election is Sufficient. 8. It is a condition precedent to the validity of an election as to a bond issue for a public purpose that notices be given for the time and substantially in the manner designated in the statute, but the particular form and manner pointed out by the statute is not essential. Bridges — Bond Election Held Valid, Though Proof of Notice Dated After Meeting. 9. Under Sections 4741-4753, Or. Ii., requiring proof of posting notice of meeting to authorize a bond issue for the building of a bridge by affidavit, and that the secretary of the meeting shall inclose copies of such proof with his certificate to the county clerk, an election was valid, where the affidavit, though dated later than the meeting showed the notices were properly posted, and the proof which the secretary’s minutes recited was submitted, accompanied his certificate, which was filed on the date of the affidavit. Newspapers — Printer’s Affidavit of Circulation Held Sufficient. 10. The printer’s affidavit that the paper “is of general circulation” was sufficient proof of publication, within Sections 4741-4753, Or. L., and of an order for publication of notice of bridge bond election. Bridges — Affidavit of Posting Notice “in” Instead of “at” Courthouse Held Sufficient. 11. An affidavit that notice of a bond election for construction of a bridge was posted “in,” instead of “at,” the courthouse, as required by Sections 4741-4753, Or. L., held sufficient; “at” meaning “in,” or “within,” and more generally “within” than “without.” Bridges — Evidence Held Sufficient to Show Affidavit Stated When Notice of Bond Election was Posted. 12. In a suit to restrain the collection of a special tax to pay bonds issued pursuant to Sections 4741-4753, Or. L., the record and certified copy of the proof of the posting of notice of the election on a date conforming to the secretary’s minutes of the election meeting and the court’s order declaring the result, held sufficient to show that the affidavit of posting stated the date thereof, though plaintiff’s certified copy of the record contained no such statement. 8. Necessity of compliance with statutory requirements as to notice of election for issuance of bonds, see note in 18 Ann. Cas. 1137. Bridges — Court’s' Order Declaring Result of Bond Election Cures Irregularities. 13. Under Sections 4741-4753, Or. L., providing that an order by the County Court declaring that a majority of the electors of an island road district voted to issue bonds for the construction of a bridge “shall be absolutely conclusive as to the regularity of all the proceedings,” such order cures all mere irregularities. Appeal and Error — Assignments not Discussed in Brief or Argued Assumed Abandoned. 14. The Supreme Court will assume that all assignments of error not discussed in appellant’s brief nor alluded to> in argument are abandoned.
102 Or. 636Cordrey v. Steamship (1922)Reversed and Remanded
Admiralty — No Jurisdiction of Proceeding to Recover Damages for Injuries Received on Dock. 1. Admiralty courts have no jurisdiction of an action by a longshoreman, injured on a dock when a sling loaded with cement fell on a truck which he was operating, under Const. U. S., Article III, Section 2, and Judicial Code TJ. S. Section 24, as amended by Act Cong. Oct. 6, 1917 (TJ. S. Comp. Stats. 1918, TJ. S. Comp. Stats. Ann. Supp. 1919, § 991[3]). Shipping — State can Apply Lien Against Foreign Ship Arising Out of Tort in Jurisdiction. 2. The state can provide a remedy for a tort happening within its jurisdiction and apply a lien against á foreign vessel through whose fault damages occurred, under Const. TJ. S., Article III, Section 2, and Judicial Code TJ. S., Section 24, as amended by Act Cong. Oct. 6, 1917 (TJ. S. Comp. Stats. 1918, U. S. Comp. Stats. Ann. Supp. 1919, § 991[3]), and hence could properly enact Sections 10281, 10283-10288, 10291, Or. L. Constitutional Law — Seizure of Vessel Sufficient Notice to Owner of Claim Under Due Process Clause of Constitution. 3. Sections 10281, 10283-10288, 10291, Or. L., providing for action direct against vessel on elaims arising out of torts committed by a vessel, held, to provide sufficient notice to the owner of the vessel, as against an objection that it denies due process of law, in view of Section 799, subdivision 4; amount of notice being a legislative question. Commerce — Statute Providing for Seizure of Vessel in Jurisdiction Does not Usurp Federal Function. 4. Sections 10281, 10283-10288, 10291, Or. L., providing for a lien againsf and seizure of a vessel within the jurisdiction of the state, to satisfy claims for damages or injuries done to persons or property, are not unconstitutional as usurping a federal function in the regulation of interstate commerce. Action — Remedy for Foreclosure of Lien on Property Exclusive. 5. The remedy in equity devised by Section 422, Or. L., treating of foreclosure of liens upon real or personal property, is exclusive and must be followed. Statutes — Later Enactment Supersedes Prior Conflicting Act. 6. A later enactment supersedes a prior aet, where they are in conflict. Shipping — Court Erred in Permitting Action at Law Against Owner of Vessel for Damages Arising Out of Tort. 7. In a proceeding under Sections 10281, 10283-10288, 10291, Or. L., to recover damages for injuries arising through fault of foreign vessel, court erred in permitting the action to be tried as one at law, and in permitting a personal judgment against the owner, is view of section 422. Pleading — Language Controls Figures. 8. Where writing in complaint alleged damages in the sum of $2,800 but the numerical figures were scratched out and the figures $7,500 inserted, the writing controlled. Pleading — Amendment as to Amount After Case was Submitted Improperly allowed. 9. Where a complaint alleged damages in writing of $2,899, but the figures were stricken out and $7,500 inserted, court erred, after the testimony had been taken and the cause argued to the jury, in permitting the complaint to be amended so as to conform the written allegation to the figures, in view of Section 102, Or. L., especially where the proceeding was against a citizen of another state, and the amendment in effect sanctioned a practice whereby defendant could be haled into court to answer a claim not of sufficient amount to give the federal court jurisdiction, and his right of removal be cut off. Shipping — Whether Owner of Vessel Knew of Defective Sling Held for Jury. 10. In an action by a longshoreman for damages for personal injuries caused by breaking of sling, the fact that the sling was furnished from aboard the vessel sought to be held for the damages was a circumstance 'which gave the jury a right to determine whether or not owner of vessel had knowledge of the defect. Shipping — Injury to Longshoreman from Breaking of Sling Furnished by Ship Held to Create Lien. 11. Where injuries to a longshoreman arose out of the furnishing of a defective sling by a vessel discharging its cargo, the tort, if any, was one committed by the ship itself under Sections 10281, 10283-10288, 10291, Or. L., providing for a lien against a vessel causing the injury.
102 Or. 666Crossen v. Campbell (1921)Modified
Trial — Where Parties Stipulated That Court Should Try Every Issue, There is No Need to Consider Law Issue, Stayed by Pleading, an Equitable Defense. 1. Where parties to an action for forcible entry and detainer stipulated that the court should determine everything involved in the ease without a jury, there was no need for the law issue, whieh 'had been automatically stayed in pursuance of Section 390, Or. D., by the pleading of an equitable defense, to proceed further. Landlord and Tenant — Evidence Held Sufficient to Show Forcible Detainer of Premises. 2. Evidence held sufficient to show a forcible detainer of premises by the owner of reversion against tenant. Forcible Entry and Detainer — “Forcible Entry” Defined. 3. Whenever a party by acts or speech at time of entry gives those in possession just cause to fear bodily harm if they do not give way, the entry is deemed forcible, whether the terror is caused by force of numbers or by arms, indicating a design of using force, or by actual threats, and there is no necessity to resist if failure to resist is due to intimidation, or well-founded belief that resistance will be useless. Forcible Entry and Detainer — Detainer may be Forcible, Although Entry was Peaceable. 4. There may be forcible detainer although the entry is peaceable; and it is not essential that an assault should have been committed, but it is sufficient if the acts of defendant are such as to cause a reasonable apprehension of physical violence. 4. Keeping out of possession person entitled thereto, by fear of personal violence after peaceable entry, as giving right of action for forcible entry, see notes in Ann. Cas. 1912D, 875; Ann. Cas. 19I6C, 494. Forcible Entry and Detainer — One Dispossessed not Required to Commit Breach of the Peace in Trying to Regain Possession Before Action. 5. Where possession of real property has been taken in the absence of one legally in possession, and the person illegally in possession refuses to vacate, and declares that he intends to hold by force if necessary, the law affords the injured person a remedy without compelling him, in his efforts to regain possession, to go to the extent of bringing about an actual breach of the peaee. Forcible Entry and Detainer — Equitable Defense That Plaintiff had Forfeited His Lease and Reply Held to Put in Issue Right to Premises. 6. In an action for forcible entry and detainer, an equitable defense pleaded under Section 390, Or. L., setting up in the answer that plaintiff had forfeited his lease, and asking that defendant’s possession be ratified, and for equitable relief, which was put in issue by reply, conferred upon the equity side of the eourt the jurisdiction to decide the question, and, upon its being determined that the lease had not -been breaehed, and that the defendant was entitled to possession, plaintiff’s possession was wrongful, and a decree restoring defendant to possession was proper. Equity — When Equity Once Assumes Jurisdiction, It Will Decide the Entire Subject Matter, Including Necessary Legal Questions. 7. When a court of equity has once assumed jurisdiction, it will reach out and draw into its consideration and determination the entire subject matter, and will retain such jurisdiction until all the matters involved, or growing out of and connected with the subject matter of the suit, are finally disposed of, even though it is thereby required to pass on strictly legal questions or to grant legal remedies.
102 Or. 680Johnson v. Underwood (1922)Affirmed
Municipal Corporations — Occupant of Automobile Driven by Another must Exercise Ordinary Care for Own Safety. 1. An occupant of an automobile operated by another is required by law to exercise ordinary care for his own safety. Trial — On Motion for Nonsuit, Plaintiff’s Evidence must be Considered as True. 2. On motion by defendant for a judgment of nonsuit, the testimony on behalf of plaintiff, together with all the presumptions and inferences legitimately deducible therefrom, must be considered as true. Appeal and Error — Defendant’s Evidence may Cure Error in Overruling Motion for Nonsuit. 3. Where defendant’s motion for nonsuit is overruled, but he did not rest upon the motion, the evidence introduced by him may be considered in order to sustain a recovery on the part of the plaintiff, and the denial of nonsuit will not be reversed, where the whole case as presented by both plaintiff and defendant shows sufficient evidence to take the case to the jury. Trial —■ Introduction of Evidence by Defendant Does not Waive Motion for Nonsuit. 4. The introduction of evidence by defendant does not waive his motion for nonsuit, unless sueh evidence cured the defects, if any, in the plaintiff’s ease. Evidence — Witness Without Special Qualification can Testify to Speed, but Evidence is not of Much Value. '5. A witness who had never owned or operated an automobile, and who revealed no special qualification as to ability to judge the speed of the car, was competent to testify as to such speed, though the car in which she was riding had no speedometer, but her testimony was not of great value. 5. Opinion evidence as to speed of automobile, see notes in 19 Ann. Cas. 754; Ann. Cas. 1917D, 613. Negligence — Contributory Negligence Bars Recovery. 6. If it appears from the testimony offered by the plaintiff in an action to recover damages for personal injury that the person sustaining the injury was guilty of negligence without which the injury would not have happened, such proof as a matter of law will defeat a recovery. Municipal Corporations — Evidence Held not to Show Contributory Negligence as a Matter of Law. 7. In an action for death of occupant of automobile driven by another when another automobile collided therewith, evidence as to the speed and relative positions of the two automobiles as they approached the street intersection, held not to show as a matter of law that plaintiff’s decedent was eontributorily negligent. Evidence — Acts and Declarations in Party’s Presence Admitted on Theory His Failure to Act was an Admission. 8. Section 727, paragraph 3, Or. L., making admissible evidence of declaration of act by another in the presence of a party, and the party’s conduct in relation thereto, is based upon the rule that the silence or omission to act by the party with reference to such acts in his presence is in effect an admission by him. Evidence — Declarations of Others at Time of Accident not Admissible Against Administratrix. 9. In an action for the death of plaintiff’s decedent caused by an automobile collision, the declarations and acts of others after the collision are not admissible against plaintiff, since no admission by decedent can be implied therefrom. Evidence — Silence of Administrators Before Appointment not Binding in Representative Capacity. 10. In an action by an administratrix for the death of her intestate, acts and declarations by others, at the time of the accident, when plaintiff was personally present, are not binding upon her in her representative capacity, and therefore are not admissible against her. Evidence — Admissibility of Declarations in Party’s Presence is Court Question. 11. Whether the situation is one from which the jury could reasonably find that a party’s conduct was relevant to the issues so as to render such evidence admissible is a preliminary question for the court. Evidence — Question as to Manner of Collision Predicated on Appearance of Car Held Inadmissible. 12. in an action for injuries in an automobile collision, a question asked a witness as to whether the appearance of the running-board as shown in a picture would necessarily indicate that it was h’t by the other machine was objectionable as calling for the opinion of the witness. Trial — Requested Instructions as to Effect of City Ordinances Held Covered. 13. In an action for injuries resulting from an automobile collision at a street intersection, instructions, requested by defendant as to effect of the city ordinances regulating traffic, held covered by an instruction that if the jury found the ordinances to exist any defendant violating such ordinances would be guilty of negligence. Appeal and Error- — -Submitting to Jury Existence of Ordinance Alleged and Proved is Favorable to Defendant. 14. In an action for injuries resulting from an automobile collision at a street intersection, error in an instruction which submitted to the jury the question whether certain city ordinances had been pleaded by both parties imposed an additional unnecessary burden upon plaintiff, and was not prejudicial to defendant.