Volume 103 — Oregon Reports

<p>Vendor and Purchaser — Inspection of Land Precludes Reliance on Representations a§ to Character and Accessibility.</p> <p>1. A purchaser of land, who visited it and had an opportunity to judge of its qualities and productivity, as well as its nearness to market, highway, and railroads, cannot rescind his contract to purchase for fraudulent ■ misrepresentations in those respects.</p> <p>Frauds, Statute of — Reformation of Contract not Granted, Where Description Does not Comply With Statute of Frauds.</p> <p>2. Courts will not reform a contract for the sale of land, where the description is too indefinite to comply with the statute; but such contract will be treated as an oral contract, enforceable neither in law nor in equity.</p> <p>Frauds, Statute of — Purchaser cannot Recover Payment on Oral Contract Which Vendor was Ready to Perform.</p> <p>3. Where the' vendor has performed his part of an oral contract to sell land, or is ready and willing to perform, the purchaser cannot recover the purchase money paid.</p> <p>Vendor and Purchaser — Breach of Agreement to Build Road Held to Entitle Purchaser to Rescind.</p> <p>4. Where the vendor in an oral contract for the sale of land promised to build a road to the lands within two months, and the land was practically valueless without such road, the vendor is not ready and willing to perform bis contract, so as to be entitled to retain the purchase money paid, unless he has built the road as well as tendered conveyance.</p> <p>1. On effect of inspection or opportunity to inspect on vendee’s right to rely on representations by vendor as to quality or condition of soil, see note in L. R. A. 1917C, 273.</p> <p>2. Effect of statute of frauds upon power of equity to reform contracts on ground of fraud, accident or mistake, see notes in 3 Ann. Gas. 781; 18 Ann. Cas. 919.</p> <p>Appeal and Error — Defendant, Who Asked Equitable Belief, cannot First Contend on Appeal That Suit Should have Been at Law.</p> <p>5. Where defendant in a suit in equity to rescind a contract for the purchase of land made no objection by demurrer or otherwise that plaintiff’s remedy should have been by action at law, but instead answered, and asked for equitable relief, an objection on appeal that the remedy was by action at law comes too late.</p>

<p>Partnership — No Particular Form of Notice Required to Dissolve, and Any Notice by One Partner to Another Sufficient.</p> <p>1. No particular form of notice by one partner to another is required to dissolve, and any notice to this effect given by one partner to another is sufficient.</p> <p>Partnership — Agency- of Each Partner for His Copartner Continues to a Limited Extent After Dissolution Until Their Affairs are Wound Up.</p> <p>_ 2. During the existence of ca firm each member is the agent of his copartner to transact business within the scope of the partnership, and this mutual agency continues to a limited extent after dissolution until their affairs are wound up.</p> <p>Partnership — After Dissolution Partner cannot Bind Firm as to Negotiable Paper Without Actual Authority from Copartners.</p> <p>3. As to new contracts the implied agency of partners eeases on dissolution, and a partner is without authority to bind the firm as a party to negotiable paper without actual authority from -his co-partners.</p> <p>Partnership — After Dissolution Partner may not, Without Authority, Issue Notes or Borrow Money in Name of Firm to Meet a Preexisting Debt.</p> <p>4. Borrowing money to meet pre-existing obligations of a partnership constitutes a new contract, and a partner after dissolution may not issue notes in the name of the firm to liquidate pre-existing firm debts or borrow money for that purpose without express or implied authority.</p> <p>Partnership — Note and Chattel Mortgage on Firm Property Given by One Partner After Dissolution to Pay Firm Debts Held Valid as to That Partner’s Interest.</p> <p>5. Where, after dissolution, one partner gave a note in the firm name secured by chattel mortgage on firm property to pay preexisting firm debts, though the note and mortgage were not obligations of the firm, they were valid as against his interest, subject to the claims of creditors against the firm, and the lien of the mortgage was transferred to the proceeds of a sale of the mortgaged property.</p> <p>Partnership — Partner Who Pays More Than His Share of Firm Debt Entitled to Contribution from Copartner.</p> <p>6. A partner who pays more than his share of a firm debt is entitled to contribution from his copartner on an accounting and final settlement of their affairs.</p> <p>Partnership — Mortgages on Firm Lands may be Presented as Claims Against Partnership Assets Without Affecting the Security.</p> <p>7. Where firm lands were subject to a first and second mortgage, they may be presented as claims against firm assets entitling the mortgagees to payment pro rata with other creditors without affecting the security, though one was a purchase-money mortgage.</p> <p>Partnership — Partner Who Paid Overdue Interest and Part of Principal of Firm Mortgage Debt by Note and Chattel Mortgage After Dissolution Held Entitled to Reimbursement.</p> <p>8. Where partner after dissolution gave a note in the firm name and chattel mortgage on firm property to pay overdue interest and part of the principal on mortgages on such property, the note and chattel mortgage being valid as against him, though not as against the firm, he is entitled to contribution from his copartner, though the claim on the note and chattel mortgage was presented by the payee. 0</p>

<p>Appeal and. Error — Supreme Court’s Appellate Jurisdiction Based Only on Duly Authenticated Record.</p> <p>1. The Supreme Court’s appellate jurisdiction must be based' on a duly authenticated record of the doings in the Circuit Court, and not on an affidavit- originally filed in the Supreme Court and purporting merely to narrate the occurrences in the' Circuit Court.</p> <p>On charges of adultery as grounds for divorce, see notes in 18 L. R. A. (N. S.) 300; 34 It. R. A. (N. S.) 360.</p> <p>Divorce — Supreme Court Without Jurisdiction to Require Payment of Temporary Alimony in Absence of Record Referring to Order.</p> <p>2. On defendant’s appeal from a divoree decree for wife, the Supreme Court had no jurisdiction to require husband to pay temporary alimony decreed by lower court, on motion made in the Supreme Court on affidavit filed therein reciting the court allowed wife such temporary alimony, in absence of duly authenticated record containing such order or referring thereto, since in such ease the court could not discuss or consider or review the order.</p> <p>ON THE MERITS.</p> <p>Divorce — Evidence Held to Show Husband Guilty of Cruelty.</p> <p>3. In an aetion for divoree, evidence that on several occasions the husband without provocation violently attacked his wife and injured her, and that he had unjustly charged her with infidelity, 7ield sufficient to sustain a finding he was guilty of cruelty.</p> <p>Husband and Wife — No Right to Chastise Wife.</p> <p>4. It is not within the right of any man to beat Ms wife under any circumstances, or for any cause, good or bad.</p> <p>Divorce — Court Without Discretion to Deny Relief Where Statutory Ground is Proved.</p> <p>5. Though it is the poliey of the law to sustain the marriage relation, courts of equity are bound to decree a divorce to the injured party where the acts of the other party complained of are clearly established by the evidence, were not provoked by any act of the plaintiff, and were of the kind and character made by the statute a ground for divorce.</p> <p>Divorce — Remedy for Excessive Allowance for Support of Children Held to be Application to Trial Court for Reduction.</p> <p>6. In a suit for divorce, where the court granted the relief to plaintiff and awarded her the custody of the two children, the defendant cannot, on appeal, object to the amount he was required to pay for the support of the children, where there was nothing in the record to show it was unreasonable, but his remedy is by. application to the court below for reduction of the amount.</p>

<p>Appeal and Error — Findings Supported by Evidence not Reversible,</p> <p>1. Under Section 159, Or. H., findings of fact cannot be set aside on appeal, if there is any competent evidence to support them.</p> <p>Evidence — True Date of Stock Certificate Could be Shown by Parol.</p> <p>2. That a stock certificate, dated at a time when its issuance would have resulted in an overissue of stoek, was not then issued, but at a later time when the authorized capital stock had been increased, and that it was given the earlier date in order that dividends or profits accruing from such date might offset the interest on the subscription note given therefor on the earlier date, might be shown by parol such showing not contradicting any minutes or records of the corporation.</p> <p>2. Admissibility of parol evidence to show instrument as executed on day other than date it bears, see note in Ann. Cas. 1913A, 496.</p> <p>Evidence — Unrecorded Corporate Acts may be Proved by Parol.</p> <p>3. In the absence of a record, the acts of corporations may be proved in the same manner as the acts of individuals, and, if no direct evidence can be adduced, faets and circumstances may be proved from which the acts may be inferred.</p>

<p>Statutes — Words Given Ordinary Meaning.</p> <p>1. In construing penal statutes, the legislative intent in most instances is to be found by giving the words the meaning in which they are used in ordinary speech.</p> <p>Licenses — Blue Sky Law not Extended by .Construction,</p> <p>2. Sections 6838, 6848, Or. L., held not to apply to purchase of stock of a farmer elevator company from the company by citizens of a community to induce it to construct an elevator at that place, where the trial court found that the stock was not sold for profit nor on commission, nor was the stock offered to the public, as the statute cannot be enlarged by construction, in view of Section 799, subdivisions 1, 34, and Section 2409.</p> <p>2. Validitv and construction of blue sky laws, see notes in Ann. Cas. 1916A, 706; Ann. Cas. 1917, 650; L. R. A. 1917F, 524.</p>

<p>Estoppel — Defense must be Pleaded.</p> <p>1. To 'be available as a defense, estoppel must be pleaded.</p> <p>Estoppel — Lessor Suing Mortgagee of Building to Remove Cloud on Title not Estopped by Unsuccessful Position in Prior Suit.</p> <p>2. Mortgagee of skating-rink building, sued by the lessor of the premises to the mortgagor to remove cloud on title, held not in position to plead an estoppel against the lessor, because in her suit against the mortgagor and a surety company on account of removal of the building from the premises she took up a position inconsistent -with that taken by her in the present suit; plaintiff lessor in such, former suit not having successfully maintained her position.</p> <p>Landlord and Tenant — Court will not Decree Idle Ceremony of Sale of Forfeited Leasehold Interest on Foreclosure.</p> <p>3. In case foreclosure of a mortgage of a lessee’s interest is sought, equity will not decree an idle ceremony of a sale; the lessee’s title having failed under the conditions of the lease.</p> <p>Landlord and Tenant — Mortgagee of Leasehold Interest Could Acquire No Greater Eights Than Tenant.</p> <p>4. The mortgagee of a leasehold interest could acquire no rights greater than or superior to those of its mortgagor, the tenant; the mortgagee of such an interest taking it subject to all the conditions and covenants of the lease.</p> <p>Landlord and Tenant — Lessor Held not Entitled to Invoke Forfeiture to Secure Building Erected by Lessee With Many Creditors.</p> <p>5. In suit to remove cloud on her title, by the lessor of premises whereon a skating-rink was erected, brought against a bank, mortgagee of the lessee’s interest, plaintiff lessor held not entitled to forfeiture giving her good title to the building erected on the premises by the lessee worth some $60,000; there being many creditors of the lessee who should be paid.</p> <p>ON PETITION FOR MODIFICATION OF DECREE.</p> <p>Landlord and Tenant — Landlord’s Eights as Against Mortgagee of Lessee Stated.</p> <p>6. An owner of premises having leased them to one who erected skating-rink thereon, which, by the terms of the lease, was a chattel, and the lessee having mortgaged the building to a bank to secure creditors and gone into bankruptcy, whereupon the lessor, exercising an option under the lease, declared the lease void, and brought an action against the bank to quiet title, held, that she was not entitled to forfeiture giving her good title to the building worth some $60,000, but the court should hear evidence in order to give the bank equitable relief, and to determine the amount of taxes, rents, etc., and any other moneys due plaintiff by reason of the lease, and should charge against her rentals received and damages paid to her for failure to remove the structure, after which the bank, by paying any balance remaining due her, should be entitled to foreclosure of its mortgage.</p> <p>ON OBJECTIONS TO COST BILL.</p> <p>Costs — Expenses of Transcript Taxable on Appeal, When Necessary to Trial in Supreme Court.</p> <p>7. Under Laws of 1921, page 621, Section 1, the cost of a transcript of the testimony, when necessary for the trial of the cause in the Supreme Court, constitutes a legal disbursement, taxable as costs on appeal.</p>

<p>Negligence — Contributory Negligence must be Pleaded as Defense.</p> <p>1. Contributory negligenee is a defense, which must be pleaded and proved in order to be available, except where it conclusively appears from testimony adduced by plaintiff.</p> <p>Negligence — Denial of Negligence and Plea of Contributory Negligence Permissible.</p> <p>2. A defendant may deny his own negligenee, and jilead and prove contributory negligence.</p> <p>Negligence — Contributory Negligence Chargeable, Without Other Negligence.</p> <p>3. The term “contributory negligenee’’ does not indicate that, there was some other negligenee than that of defendant which tended to produce the injury, or that the defendant was negligent, but plaintiff may be guilty of contributory negligence without defendant being guilty of negligence,</p> <p>Negligence — Contributory Negligence Pleaded.</p> <p>4. An answer denying the negligenee charged and alleging that the injury was caused by the negligent act oí the plaintiff, is sufficient to permit proof of contributory negligence.</p> <p>Carriers — Answer Held to Permit Proof of Contributory Negligence.</p> <p>5. Where the complaint charged that injury to a passenger was caused by negligence in starting a street-ear before she could alight, an answer denying the injury and negligence, and alleging that, if injury occurred, it was caused by her negligence in attempting to alight before the ear stopped, was sufficient to permit defendant to prove contributory negligence.</p> <p>Appeal and Error — Questions not Raised on First Appeal Res Judicata on Second Appeal, but New Instructions may be Asked on Retrial.</p> <p>6. All questions that could have been raised on a first appeal are concluded by the decision on that appeal, and are res judicata on second appeal; but this does not mean that upon a second trial counsel are precluded from asking new or different instructions on points not suggested or urged by them on the first trial, or saving exceptions to a refusal to give such instructions.</p>

From Multnomah: Robert Gr. Morrow, Judge. Department 2. Upon the trial of this cause in the lower court a stipulation of the facts was entered into relative to the following questions: “First: Whether or not decedent, Ray E. Stark, met his death as a result of an accident arising out of, and in the course of, his employment under the Workmen’s Compensation Law of Oregon. “Second: In case the first question is answered in the affirmative, is Wanda Stark, widow of decedent,…

<p>Pleading — Admission of. Fact not Pleaded by Opponent Improper.</p> <p>1. Insertion in an answer in a suit for specific performance of an admission that the property involved was owned by defendant’s wife was improper and a nullity, where not in response to any allegation in the complaint alleging ownership in her.</p> <p>Specific Performance — Suit Against Wife not Bound and Husband Jointly not Maintainable, Unless Plaintiff Elects to Accept Husband’s Deed.</p> <p>2. In specific performance suits, where the wife having a dower right is sued jointly with her husband on a contract not binding upon her, the suit cannot be maintained against her or her husband, unless prior to the decree plaintiff eleets to aceept the deed of the husband alone.</p> <p>Specific Performance — Motion to Amend Held Election to Accept Deed of Husband Alone.</p> <p>3. In a suit for specific performance against a wife not bound by the contract and her husband jointly, a motion to amend the complaint by demanding a deeree against the husband alone held an election on plaintiff’s part to accept the deed of the husband alone within the rule requiring plaintiff to elect.</p> <p>Specific Performance — Defendant’s Wife Without Dower Eight Held not a Necessary Party.</p> <p>4. A wife residing out of the state, having no dower right in land under Section 10073, Or. L., held not a necessary party to a suit against her husband for specific performance.</p> <p>2. On the question of dower right as affecting marketability of title, see note in 38 L. E. A. (N. S.) 33.</p> <p>Frauds, Statute of — Entire Contract Meed not be Contained in One Paper.</p> <p>5. In order to make a contract binding under the statute, it is not necessary that it should be all contained in one paper.</p> <p>Frauds, Statute of — Evidence Insufficient to Show Written Contract for Sale of Land.</p> <p>6. In a suit for specific performance, telegram and letters offered in evidence held insufficient to show a written contract between the parties.</p> <p>Specific Performance — Party not Bound cannot Compel Performance by the Other.</p> <p>7. In specific performance suits, whenever a contract is intended to bind both parties, if for any reason one of them is not bound, he cannot compel performance 'by the other.</p> <p>Specific Performance — Sufficient Description of Land Essential.</p> <p>8. A suit for specific performance cannot be maintained where the land to be affeeted by the contract is not described therein with sufficient certainty to be capable of identification.</p> <p>ON PETITION POE REHEARING.</p> <p>Frauds, Statute of — Writings Referring to Vendor’s Seven Dots Insufficient as not Showing Which of His Eight Lots were Meant.</p> <p>9. Writings referring to the vendor’s seven lots in a certain town held not sufficient under the statute for enforcement of a contract to sell seven lots, where he owned eight lots therein, any seven of which might have been the subject of the contract.</p> <p>6. Telegrams as writings to make a contract within the statute of frauds, see note in 50 L. R. A. 240.</p>

<p>Divorce — “Condonation” Defined.</p> <p>1. “Condonation” is the forgiveness of a matrimonial offense upon condition that the offense will not be repeated and the offender will thereafter treat the injured spouse with conjugal kindness.</p> <p>Divorce — Decree may be Denied Where Offense has Been Condoned, Though Condonation' has not Been Pleaded.</p> <p>2. Where it is clearly shown by the evidence that the matrimonial offense has been condoned, the court may deny a deeree of divorce, although defendant has not pleaded the condonation.</p> <p>Divorce — Condonation Implied from Continuance of Cohabitation, Except Where Wife cannot Leave at Once Through Fear or Circumstances.</p> <p>3. In the absence of statute controlling the matter, condonation of acts of cruelty relied upon to obtain a divorce will sometimes be implied from the continuance of marital cohabitation after the acts were committed, but, since condonation must be a voluntary act, continued cohabitation will not be construed into forgiveness, where through fear or the circumstances surrounding her the injured wife cannot leave at once.</p> <p>Divorce — No Condonation, Except as to Adultery, in Absence of Express Forgiveness.</p> <p>4. Under Section 510, Or. L., condonation of a matrimonial offense, except adultery, cannot be established by implication from the voluntary cohabitation of the parties after knowledge thereof, but to constitute a bar for any causes of divorce named in the statute, except adultery, the offense must have been expressly forgiven.</p> <p>1. On condonation as defense in divorce action, see notes in Ann. Cas. 19120, 3; Ann. Cas. 1918A, 651; 14 A. L. B. 931.</p> <p>Divorce — Husband, to Establish Defense of Condonation of Cruelty must Plead and Prove Express Forgiveness.</p> <p>5. Wife suing husband for divorce because of cruelty held not to have condoned cruelty, in absence of pleading and proof of express forgiveness, under Section 510, subdivision 4, Or. L.'</p>

<p>Specific Performance — Oral Contract With Deceased Promisor must be Clearly Established.</p> <p>1. A party seeking specific performance of an oral contract made by a promisor, since deceased, must establish the terms of the agreement by clear and satisfactory' evidence before the relief will be granted.</p> <p>Specific Performance — Not Decreed Where Terms of Contract are Uncertain.</p> <p>2. It is a fundamental rule of specific performance that it will not be decreed where the contract is not certain in its terms, though, generally speaking, uncertainty in a subsidiary part will not prevent specific performance if the main particulars are sufficiently certain.</p> <p>Specific Performance — Evidence Held to Sustain Plaintiff’s Claim That Original Business had Belonged to His Father.</p> <p>3. In a suit for specific performance of a contract, which plaintiff claimed his father had orally made to pay plaintiff the par value of his stock in a corporation, evidence held to sustain plaintiff’s claim that the business taken over by the corporation had belonged to the father, so that the father’s contributions thereto were not advancements to the plaintiff.</p> <p>Specific Performance! — Weight of Evidence Held Contrary to Plaintiff’s Testimony as to Agreement With Defendants.</p> <p>4. In a suit against the executor and other heirs of plaintiff’s father to eompel specific performance of an alleged oral contract to pay plaintiff the par value of certain stock held by him, the weight of evidence held to contradict plaintiff’s testimony that the executor and the other heirs had agreed "to make the payment, and that when the corporation was dissolved the representative of the executor stated he would make the payment the next day if the plaintiff brought his certificate along.</p> <p>Coirporations — Two Sole Stockholders may Impress Funds After Dissolution With Trust for One of Them.</p> <p>5. Though the funds of a dissolved corporation after payment ol the creditors, including the claims of the stockholders against the corporation, would be distributed by the law between the stockholders in proportion to their holdings, it was competent for the two stockholders who owned all of the stock to make an agreement tlat one of them should be paid the par value of his stock in full before even the claim of the other against the corporation was paid, aiv.d to impress a trust for such payment upon the corporate funds.</p> <p>Specific Performance — Evidence Held not to Show Agreement to Pay out of Specific Funds.</p> <p>6. In a suit for specific performance of an oral contract by plaintiff’s father, since deceased, to pay the plaintiff the par value of his stock in a dissolved corporation, evidence held not to show that the agreement made by the father was to pay for plaintiff’s stock out of the proceeds of the sale of the corporation’s assets, so that no trust was impressed upon the proceeds of such sale in plaintiff’s favor.</p> <p>Specific Performance — Personal Agreement of Testator to Reimburse for Corporate Stock can Only be Enforced by Claim Againrt Executor.</p> <p>7. An oral promise by plaintiff’s deceased father to pay the par value of plaintiff’s stock in a dissolved corporation, without an agreement to make such payment from the funds of the corporation, imposed only a personal liability on the father, whieh can be enforced after his death only by claim against his executor.</p>

From Union: J. W. Knowles, Judge. Department 2. The defendant was jointly indicted with one Dooley and charged with the larceny of one Ford automobile, the personal property of George Robertson. As a result of a separate trial, the defendant Keelen was found guilty and judgment of conviction entered against him, from which he has appealed. At the trial it appeared that George Robertson purchased the car from M. J. Goss about November 5, 1920.

From Multnomah: Robert G. Morrow, Judge. Department 2. This is a suit in equity brought by plaintiffs to quiet title to certain real property situate within the exterior boundaries of Multnomah County Drainage District No. 1, and to enjoin a threatened trespass under claim of right.

<p>Divorce — Degree of Proof Necessary in Suit for Divorce for Adultery Stated.</p> <p>1. In a suit for divorce because of adultery, it is sufficient if the allegations are established by a preponderance of evidence.</p> <p>Divorce — Requirements of Circumstantial Evidence to Prove Adultery Stated.</p> <p>2. For circumstantial evidence of adultery to warrant divorce, the circumstances mtlst be such as would lead the guarded discretion of a just mind to the conclusion of the truth of the facts, and, when combined, the circumstances, must tend to establish the lustful disposition of defendant toward the alleged paramour, a like disposition on the part of the latter, and the opportunity to commit the act, all of which must be reasonably approximate in point of time, and the proof must sustain'an inference of actual connection.</p> <p>Divorce — Circumstances Under Which Adultery may be Inferred Stated.</p> <p>3. In suit for divorce, adultery may be inferred from the fact of occupancy by the parties of the same bed at night, or from occupancy of the same room at night, in the absence of an explanation of the incriminating circumstances.</p> <p>Judgement — Conviction or Acquittal of Party not Generally Evidence in a Civil Action.</p> <p>4. As a general rule, a judgment of conviction or acquittal of a party charged with crime cannot be given in evidence in a civil action to prove or negative the facts upon whieh it was rendered.</p> <p>Judgment — Acquittal in Prosecution for Adultery not Available to Defendant in Suit for Divorce on Ground of Adultery.</p> <p>5. The record in a criminal prosecution showing that the present defendant was acquitted in a prosecution for adultery cannot be introduced in a suit for divorce for adultery.</p> <p>Divorce — Relief in Appellate Court cannot be Given Party Who Does not Appeal from Decree of Trial Court.</p> <p>6. -In a suit for divorce, in which defendant did not appeal from the decree of the trial court refusing divorce to both parties, no relief can be given her.</p> <p>Divorce — Evidence of Plaintiff’s Mistreatment of His Wife Should be Considered in Determining His Right to Divorce.</p> <p>7. In a suit by a husband for divorce, evidence of his cruel treatment of his wife, and his expression of a desire “to get rid” of her, should be considered in determining whether he came into equity with clean hands.</p> <p>Divorce — Plaintiff, in Suit for Divorce for Adultery, must Establish Truth of Charge.</p> <p>8. In a suit for divoree on the ground of adultery, plaintiff must establish the truth of the charge, and defendant is required to produce no evidence to defeat the suit until a prima facie ease is made against her.</p> <p>Divorce — Evidence Held Insufficient to Prove Adultery.</p> <p>9. In suit by a husband for divorce, evidence held, insufficient to prove adultery.</p> <p>Divorce — Voluntary Cohabitation Pending Proceedings for Divorce Condones Misconduct.</p> <p>10. Voluntary cohabitation of the parties pending divorce proceedings operates as a condonation of misconduct of which complaint is made.</p> <p>10. On attack on divoree decree based on condonation pending the divorce suit, see note in L. R. A. 1917B, 462.</p>

From Multnomah: Robert Tucker, Judge. Department 2. This suit is brought by appellant Leadbetter against O. L. Price, the executor of the last will and testament of H. L. Pittoek, deceased, to enforce an alleged right, which appellant claims, to purchase all of certain corporate stock belonging to and listed among the assets of the estate of the deceased. Appellant appeals from the decree of the Circuit Court dismissing his complaint.

<p>Sheriffs and Constables — Sheriff Entitled to Recover Expenses Incurred Within County.</p> <p>1. A sheriff is entitled to compensation for expenses incurred by him within his county in the prosecution of his official duties, such as payment for meals of prisoners while being transported, necessary auto hire, in arrests and pursuits of criminals, or in bringing in captured stills and the like, or stolen property, and other like items, under Section 3631, Or. L., as amended by Laws of 1921, Chapter 185.</p> <p>Statutes — Resort to Extrinsic Facts Unnecessary Where Intent is Plain.</p> <p>2. Where the language used in a statute is plain and unambiguous, it is not necessary to resort to extrinsic facts to determine the legislative intent.</p>

Original proceedings in disbarment. In Banc. This is an original proceeding instituted in this court by Donald Young, Chas. M. Stevens and J. S, Medley, Grievance Committee of the Lane County Bar Association, for the purpose of effecting the disbarment of Leon R. Edmunson from further practice as an attorney at law within the State of Oregon.

From Lake: J. M. Batchelder, Judge. In Banc. Defendant appeals from a judgment of the Circuit Court dismissing an appeal by defendant from a judgment of the Justice’s Court in favor of plaintiff as for want of an answer.

<p>Trial — No Error in. Refusal of Instructions Included in Charge Given.</p> <p>1. In an action against a city for damages to land from obstruction of a drain with sewage on lands below, where the court instructed the jury that the ditch was constructed not in the natural course of drainage by permission of the lower owner without payment of the consideration or without material benefit to him, plaintiff’s use thereof would be a mere revocable license, and the city under authority of the lower owner could deposit sewage in the ditch on his land without liability to plaintiffs, defendant cannot complain of the court’s refusal to instruct the jury that plaintiffs could not recover damages resulting from an act committed on lower lands, unless they or their predecessors in title paid some consideration, or did some act of material benefit to the owner thereof before the city acquired from him the right to use the ditch; the substance of the requested instructions being included in the charge given.</p> <p>Municipal Corporations — City’s Liability for Damage from Discharge ■ of Sewage cannot be Shifted to Third Person Who has Contracted to Maintain Proper Drainage.</p> <p>2. A city, having constructed a sewer as authorized by its charter (Hillsboro Charter, § 36), it was bound to use reasonable diligence and care to keep it and the drain in good repair, and it could not shift liability by contracting with a third person to maintain the drain.</p> <p>Municipal Corporations — Liable for Permitting Sewage to Flow or Percolate on to Abutting Property.</p> <p>3. A city is liable for wrongfully permitting water to flow or percolate from sewers on to abutting property, whether discharged directly thereon or at such a point that it must necessarily be carried there by a conduit or gravitation.</p> <p>Municipal Corporations — City’s Contract for Use of Ditch Held not to Terminate Plaintiff’s Rights.</p> <p>4. Plaintiff’s land having been damaged by sewage which obstructed a ditch on lands of a third person through which plaintiff’s land was drained, plaintiff’s right in the drain, even if a revocable license, was not terminated so as to prevent recovery of damage from the city, by its contract with such third person, which contemplated plaintiff’s continued use of the ditch and stipulated that the city should enlarge the ditch if necessary.</p> <p>Municipal Corporations — In Action for Damage from Obstruction of Ditch by Sewage, Motion for Directed Verdict Properly Denied.</p> <p>5. In an action against a city for damages to land from obstruction of a drain by sewage, defendant’s requests for a nonsuit and a directed verdict held properly refused.</p> <p>Waters and Watercourses — Surface Waters may be Discharged by Natural Course on to Lands of Another.</p> <p>•6. A land owner may cause surfaee waters to flow by natural course to adjoining lands, but must not collect such waters in a reservoir and then discharge the same on to the land of another to his injury.</p> <p>Waters and Watercourses — Land Owner may by Ditch Cause Surface Water in Natural Depression to Flow in Natural Course of Drainage on to Adjoining Lands.</p> <p>7. One, on whose land surface water collects in a natural basin or depression, has the legal right to rid his land thereof by causing the water, by means of a ditch which may be reasonably necessary, to flow by the natural course of drainage on to adjoining lands, though it may from thence, by natural or artificial means for ■ which he is not responsible, reach and spread out over the lands of others.</p> <p>Municipal Corporations — Bight to Use Watercourse for Surface Drainage Does not Give Bight to Drain Sewage Therein.</p> <p>8. The right to use a watercourse for surfaee drainage does not give a city the right to drain sewage therein.</p> <p>Municipal Corporations — Governed by Same Buies as Natural Persons With Bespect to Surface Waters.</p> <p>9. Cities are governed by the same rules as natural persons with lespeet to drainage of surface waters, except that they may resort to the right of eminent domain.</p> <p>Waters and Watercourses — Owner Protecting Land from Surfaee Water cannot do Anything Inconsistent With Due Exercise of Dominion Over His Own Land.</p> <p>10. An owner in protecting his land from surfaee water may not do anything inconsistent with the due exercise of dominion over his own land.</p> <p>Waters and Watercourses — ^Owner may Turn Surface Water on Land of Adjacent Owner in Siich Quantities as Would Naturally Drain Thereon.</p> <p>11. In view of Sections 9553, 9560, Or. L., authorizing application to the County Court for privilege to construct a drain over adjacent lands, where the owners thereof object, a land owner may artificially turn on tie land of an adjacent owner surface water in such quantities as would naturally drain in that direction, even though the flow thereof on the lower tract is accelerated; due regard being observed for the interest of the adjacent owner so as to cause no unreasonable inconvenience.</p> <p>Municipal Corporations — Instruction Held to Fairly Submit Questions f in Action for Damages to Land from Obstruction of Drain by Sewage.</p> <p>12. In an action against a city for damages from the obstruction of a drain by sewage deposited therein on lands below by agreement with the owner who with plaintiffs and owners of other adjoining properties constr,uc£p<i the drain, w&ieh was used for the mutual benefit of all, the charge held to fully and fairly submit the questions involved in accordance with the law.</p> <p>Municipal Corporations — City Connecting Sewer With Private Drain and Overtaxing Capacity Held Liable for Damage to Upper Lands.</p> <p>13. A city which connected its sewer with a private drain, overtaxing its capacity, and allowed material to accumulate and obstruct the flow of water, causing it to flow back on private property above, is liable to the owners thereof for the damage done.</p>

<p>Appeal and. Error — Judgment Affirmed on Failure to File Brief.</p> <p>1. Where appellant has failed to file its brief for nearly five months after filing abstract of record, the judgment will be affirmed on motion, under Supreme Court Rule 15 (173 Pac. x).</p>

<p>Equity Regards the Substance, and not the Form.</p> <p>1. Equity does not usually concern itself as mueh in regard to form as it does to substance.</p> <p>Abatement and Revival — Failure to Substitute Administrator on Plaintiff’s Death Until After Entry of Judgment Cured by Subsequent Substitution.</p> <p>2. "Where plaintiff died while court had ease under advisement, the failure to substitute plaintiff’s administrator as plaintiff until four days after the entry of the judgment was eured by the subsequent substitution of the administrator as the plaintiff.</p> <p>Corporations — Equity Held not Without Jurisdiction of Creditor’s Suit to Subject Rents in Directors’ Hands to Payment of Debt Because Creditor had a Remedy on an Injunction Bond.</p> <p>3. Equity is not without jurisdiction of a suit by a creditor against directors to subject to payment of plaintiff’s debt rents which they assigned to themselves, and for an accounting as to the _ amount thereof in their hands because the directors had furnished a bond to restrain plaintiff from attaching such rents, and thus gave him a remedy at law, since action on the bond could not furnish adequate relief.</p> <p>Equity — Defendants, having Submitted Facts to Equity Jurisdiction, Could not Complain That Plaintiff’s Remedy was at Law.</p> <p>4. Defendants, having by their answers submitted facts to the equity jurisdiction of the court, could not complain that plaintiff had an adequate remedy at law and was not entitled to relief in equity.</p> <p>Corporations — Corporation Held not a “Going Concern” Within Rule That Trust Fund Doctrine is Inadmissible to Going Concern.</p> <p>5. Where corporation organized to take over leases and construct building on leased land had abandoned construction of new building because of failure to obtain a loan, and had assigned the right to the rents from tenants in the existing building to the directors and was without funds, the corporation was not a going concern within the rule that the trust fund doctrine preeluding a corporation from preferring its directors as creditors is inapplicable to a going concern.</p> <p>Evidence — Corporate Directors Presumed to Know Financial Conditions.</p> <p>6. Directors of corporations are presumed to know its financial conditions.</p> <p>Corporations — When Corporation is Insolvent or in Condition of Probable Suspension, Officers cannot Prefer Themselves to Prejudice of General Creditors.</p> <p>7. Where a corporation is insolvent or has reached such a condition that its directors or officers see that they must deal with its assets in view of its probable suspension, they cannot use those assets to prefer themselves as creditors or sureties in respect to past advances to the prejudice of general creditors.</p> <p>Judgment — Adjudication as to Corporation’s Creditor’s Bights to Subject Bents to Payment of Debt Bes Judicata in Subsequent Action Between Same Parties.</p> <p>8. Judgment, denying directors of a corporation an injunction restraining its creditors from attaching rents due the corporation as lessee, from subtenants was res judicata, as to the creditor’s right to subject rents to payment of his debt in his subsequent action against the directors, after corporation’s assignment of rents to directors, to subject rents, collected by them to payment of his debt.</p> <p>Corporations — Amount Paid by Directors to Procure Their Belease as Sureties Under Lease to the Corporation not Debt Due Them from Corporation.</p> <p>9. Where directors of corporation organized to construct new building, on leased land paid lessors a certain amount to relieve themselves as sureties under the terms of the lease held by the corporation, after the corporation had become insolvent and the construction of the new building had been abandoned, they were not entitled to have amount so paid prorated as an indebtedness to them from the company, since the payment was not a loan to the company, and did not benefit the company, but was merely a payment whereby the directors bought their releases as sureties.</p> <p>Appeal and Error — Plaintiff not Appealing from Judgment will be Deemed Satisfied on Defendant’s Appeal.</p> <p>10. On defendant’s appeal from judgment for plaintiff, the court will not increase the judgment in plaintiff’s favor, since the plaintiff, not having appealed from the decree, is deemed satisfied with the findings and decree.</p>

Jesse Crum has made application to be admitted as an attorney at law of the State of Oregon.

From Tillamook: George E. Bagley, Judge. Department 1. This is a suit to enforce a specific contract to convey real estate.

From Columbia: James A. Eakin, Judge. ■ Department 1. This is an action brought by Robert Cele against A. Johnson, Alice Blackwell and Lester Williamson to recover damages for the alienation of the affections of LuElsie Cole, the' wife of plaintiff. A trial resulted in a verdict and judgment for the plaintiff for the sum of $15,500; and the defendants appealed. Lester Williamson is a brother and Alice Blackwell is an aunt of LuElsie Cole.

From Columbia: Jambs A. Eakin, Judge. Department 2. This is an appeal from judgment of conviction of a crime committed in violation of the Prohibition Liquor Law. The crime consisted in the unlawful possession of intoxicating liquor. Louis Eosasco was the manager of the Columbia Eiver Produce & Canning Company, and an owner of the property possessed by it. He resided on the top floor of the cannery, and had the privilege of using the basement.

From Multnomah: W. N. Gatens, Judge. Department 2. This is an action to recover damages upon account of the alleged negligence of the defendant, resulting in injury to a jetty that plaintiff was constructing and the loss of a pile-driver owned by plaintiff. Plaintiff recovered a verdict and judgment in the Circuit Court. Defendant appeals. A statement of the facts disclosed by the evidence follows.

From Coos: John S. Coke, Judge. In Banc. This is a motion to dismiss an appeal, upon the grounds: (1) that the abstract was not filed within the time prescribed by the rules of this court or by any order of this court; (2) that such abstract does not contain an index as required by rule 11 of this court; (3) that there is not appended to the abstract of each paper reference to the page of the transcript on which such paper will be found; and (4) that the abstract does not…

<p>Judgment — Must be Specially Pleaded to Operate as Estoppel.</p> <p>1. If a party desires to rely upon a former judgment or decree as an estoppel, be must plead it with particularity.</p> <p>Divorce — Decree Admissible in Evidence in Subsequent Proceedings to Show Relations of Parties Without Special Pleading.</p> <p>2. In suit for divorce, defendant is entitled to offer in evidence a previous decree awarding her separate maintenance, though her answer was only the general issue, where the decree was offered, not as an estoppel against plaintiff, but merely for the purpose of showing the relationship of the parties to each other and the history of their transactions.</p> <p>Divorce — After Expiration of Period of Desertion, Guilty Party cannot Compel Reconciliation.</p> <p>3. Where a husband had deserted his wife for more than the year required to give her a right of action for divorce, he cannot, by then offering a reconciliation to her, entitle himself to the divorce on the ground of her desertion if she refuses to accept his offer.</p> <p>Divorce — Offer of Reconciliation Held not Made in Good Faith.</p> <p>4. Where a husband had made three previous efforts to secure divorce from his wife, in one of which she had secured a decree for separate maintenance by her cross-action, a request by the husband shortly after the decree _ for separate maintenance was rendered that she again live with him held not made in good faith, but made to avoid the effect of the separate maintenance decree, and to enable the husband to procure a divorce.</p>

<p>Master and Servant — Place of Work Element of Danger Within Statute.</p> <p>1. In determining whether the work a servant was doing when he was injured involved a risk of danger within employers’ liability law, the place in which the work was to be done must be considered as a factor.</p> <p>Master and Servant — Requirement to Perform Work in Street Held not Cause of Injury Within Statute.</p> <p>2. Where the injured employee was required by his employer to make contact between an electric street railway rail and a cord connecting with the fire hydrant, and to protect the cord from passing vehicles,' his injury while rolling up the cord to get it out of the way of a motorcycle whose driver had disregarded his signal to stop was not proximately eaused by his employer’s requirement that he perform his work in the public street so as to bring the injury within employers’ liability law.</p> <p>Master and Servant — Rule of Proximate Cause of Injury not Changed by Statute.</p> <p>3. The employers’ liability law, though it has made stringent requirements respecting the duties of employers and has abolished the doctrine of negligence of a fellow-servant, has not changed the rule that the carelessness complained of must be the proximate, and not the secondary, eause of the injury to permit recovery by an injured employee.</p>

<p>Appeal and Error — In Absence of Evidence at Trial by Judge, only Sufficiency of Pleadings and Findings to Support Conclusions and Judgment can be Reviewed.</p> <p>1. Where an action was tried without a jury, and findings of fact and conclusions of law were stated by the trial court, but none of the evidence is in the record on appeal, the only questions reviewable are whether the legal conclusions were dedueible from the findings of fact, and whether the pleadings and findings of fact are sufficient t.o support the judgment.</p> <p>Replevin — Answer and Findings Held to Support Judgment for Defendant for Extras Put on Replevied Automobile.</p> <p>2. In replevin of an automobile, an answer alleging that defendant purchased it in good faith, and had since placed thereon certain extra parts, and tendering judgment that plaintiff recover possession of the automobile except such extra parts for detention of which defendant asked damages, and findings by the court conforming with the answer authorized judgment for defendant for recovery of the spare parts or their value.</p> <p>Replevin — Statute Authorizes Judgment for Defendant for Property Taken by Sheriff and Damages for its Detention.</p> <p>3. A judgment for the return of a battery placed in the replevied automobile by defendant, and for damages for the detention of the battery after the automobile was taken from defendant’s possession by the sheriff, is authorized by Sections 153, 198, Or. L.</p> <p>Replevin — Court Could not Subject Battery in Replevied Automobile to Execution in Action by Stranger Against Defendant.</p> <p>4. Where defendant alleged that he had placed in the automobile replevied by plaintiff a storage battery which he had rented from a battery company, the court had no authority to include, in an order finding that defendant was entitled to return of the storage battery, a provision that, if the plaintiff failed to make settlement with the owner of the battery, it should be subjected to execution in an action brought by the owner against the defendant.</p> <p>Judgment — Pleadings and Findings Held to Support Judgment for Detention of Battery in Replevied Automobile.</p> <p>5. In replevin for an automobile, an answer alleging that defendant had placed in the automobile a storage battery rented from another, which was detained by the sheriff, supported by evidence that the owner of the battery had recovered judgment against defendant for its value, supports a judgment in the replevin action requiring the battery to be returned to defendant and awarding him damages for its detention.</p> <p>Replevin — Findings Held to Establish Reasonable Rental Value of Replevied Battery.</p> <p>6. Though plaintiff, who replevied an automobile containing a battery rented by defendant, would be liable to defendant only for the reasonable rental value of the battery during the period of detention, not for the rental defendant agreed to pay, a finding by the trial court the rental value of the battery was the amount agreed to be paid was a sufficient finding of its reasonable rental value to support a judgment.</p> <p>Judgment — Pleadings Held not to Support Amount of Damages Allowed Defendant.</p> <p>7. In an action of replevin, where defendant claimed damages for the rental value of a battery plaeed by him in the replevied automobile from the date of the seizure of the automobile by defendant, the pleadings did not support a judgment allowing defendant the amount he was compelled to pay as rental for the battery where that exceeded the amount of the rental value for the period stated.</p> <p>Costs — Defendant Tendering Judgment for Return of Plaintiff’s Property is Entitled to Costs.</p> <p>8. Where defendant in replevin tendered a judgment for the return of an automobile replevied by plaintiff, but claimed certain extras placed therein by himself, and damages for their detention, a judgment in accordance with defendant’s prayer properly allowed him costs under Section 532, Or. L.</p>

<p>Appeal and Error — Assignment, not Argued, is Deemed Waived.</p> <p>1. An assignment of error, not argued in appellant’s brief, is deemed abandoned, subject to the right reserved by the court in furtherance of justice to notice on its own initiative a plain error of law apparent on the face of-the record as prescribed by Supreme Court rule 12 (173 Pae. x).</p> <p>Evidence — Declarations of Possessor of Personal Property Explaining Character of Possession are Admissible as Res Gestae.</p> <p>2. The declarations of one in possession of personal property concerning the title or character of his possession are admissible in evidence as part of the res gestae, where the nature of his possession is a subject matter of inquiry.</p> <p>Evidence — Declarations as to Character and Possession must not Show Source of Title.</p> <p>3. Declarations by a person in possession of personal property, to be admissible, must not go beyond the title or character of the possession, and they are incompetent if they show the source or manner of acquiring the title or the details of the agreement under which the possession is held, or are a mere narrative of a past event.</p> <p>Evidence — Declarations of Sheep Herder as to Ownership of the Sheep are Admissible.</p> <p>4. In an action for trespass by sheep, declarations by the herder, who was in charge of the sheep while they were trespassing, that defendant was the owner of the sheep are admissible against defendant.</p> <p>Evidence — Sheep Herder Held to have Possession so That His Declarations were Admissible Against Owner.</p> <p>5. A herder in charge of a large band of sheep and intrusted with the duty of earing for them was in possession of the sheep, and not merely intrusted with bare custody over them, where the owner was absent and not in charge, and the sheep were hot upon the owner’s premises, so that the herder’s declarations as to ownership of the sheep were admissible against the owner.</p> <p>Evidence — Property—Rule Against Proving Agency by Declarations Does not Exclude Declarations by Herder of Sheep.</p> <p>6. The rule against establishing agency by declarations of the agent does not make inadmissible declarations of a sheep herder in possession of sheep as to the ownership of the sheep, since their admissibility is based upon the presumption of ownership arising from possession, and is wholly independent of the existence of ageney.</p> <p>Property — Goods in Possession of Person are Presumed to bo Owned by Him.</p> <p>7. Under Section 799, subdivision 11, Or. L., it is a disputable presumption that things in the possession of a person are owned by him, which is satisfactory, unless overcome by evidence.</p> <p>Evidence — Declarations Accompanying Act Admissible are Res Gestee.</p> <p>8. 'Where evidence of an act done by a party is admissible, his declarations, made at the same time and in explanation thereof, are also admissible as part of the res gestae.</p> <p>2. On the question of admissibility of declaration as to ownership by one in possession of personal property, see note in 49 L. R. A. (N. S.) 700.</p>

From Marion: Percy R. Kelly, Judge. Department 2. This is an appeal from a judgment obtained by plaintiff against the defendant as administrator of the estate of Nicholas Lambert, deceased. Plaintiff’s action is based upon two claims presented to the defendant, as such administrator, and rejected by him.

From Multnomah.: H. H. Belt, Judge. In Banc. Joseph Laundy was convicted of criminal syndicalism; and he appealed from the consequent judgment.

<p>Contracts — Third Person may Sue to Enforce Contract in His Favor.</p> <p>1. Where two persons make a contract for the benefit of a third party, he may maintain a suit directly against the promisor to enforce the contract.</p> <p>Contracts — Contract Between Others Held for Plaintiff’s Benefit and Enforceable by Him.</p> <p>2. Where by the terms of a contract between plaintiff and a fruit company it was bound to deliver to plaintiff berries grown •by several independent growers who executed an agreement with the company binding themselves to deliver to plaintiff and not to the company all the berries grown on their respective lands for a stipulated price, the grower’s contract was enforceable by plaintiff.</p> <p>Injunction — Buyer Held Entitled to Enjoin Seller from Selling to Others.</p> <p>3. Where plaintiff contracted with a fruit company for loganberries, and certain growers agreed with the company for plaintiff’s benefit to deliver such berries directly to him, plaintiff, if not entitled to decree of specific performance, might be aided by injunction against sale of fruit to others.</p> <p>Equity — Jurisdiction not Dost Because Relief Asked has been Rendered Unavailable by Defendant’s Acts.</p> <p>4. In a suit by a buyer to enjoin sellers from selling to others, the fact that the remedy of injunction was not applied, and that defendants by selling their product to other parties put it out of their power to eomply, would not oust equity of the jurisdiction it had when the suit was instituted, but it might retain jurisdiction to award damages if deserved, especially in view of the probable necessity of an accounting.</p> <p>Abatement and Revival — Suit Held not Barred by Pending Action With Divers Parties.</p> <p>5. A suit by a purchaser of fruit against a fruit company and against various fruit-growers, who had agreed with the company to deliver fruit to plaintiff, was not barred by a suit by the company against the plaintiff, in which he had filed an answer, there being a diversity of parties.</p> <p>Sales — Burden of Proving Rescission by Agreement Held on Defendants.</p> <p>6. In action by buyer against fruit company and fruit-growers to enforce contracts whereby the company had agreed to sell fruits and the growers by subsidiary contract with the company had agreed to deliver their fruit to the buyer, the defense that both company and growers had been released from performance by rescission by verbal agreement between the buyer and company was an affirmative defense, burden of proving which was on defendants.</p> <p>Sales — Evidence Held Insufficient to Show Rescission by Agreement.</p> <p>7. Evidence held insufficient to show rescission by verbal agreement of contracts whereby a fruit company agreed to sell fruit to buyer and growers agreed with company to deliver fruit to the buyer.</p> <p>Release — Release of Party to Contract Held not to Release Others Similarly Situated, but Under Independent Contracts.</p> <p>8. Where a fruit company agreed to sell fruit for several seasons to buyer, and several fruit-growers by independent contracts agreed with the company to deliver fruits grown by them to the buyer, a release of one of the fruit-growers from his contract by the buyer and the company did not release the other fruit-growers from their contracts.</p> <p>Sales — Buyer on Sellers’ Sale to Others Held Entitled to Difference in Price He was to Pay and That Paid by Others.</p> <p>9. Where fruit company agreed to sell fruit for several seasons to buyer, and several growers agreed with the company to deliver all their fruit to the buyer, he was entitled, on breach of the agreements by sales to others, to recover the difference between the price of berries sold to the other parties and the amount which he was to pay, though impracticability of ascertaining probable profits might preclude recovery therefor.</p> <p>ON PETITION NOR REHEARING.</p> <p>Contracts — Agreement by Defendant With Buyer of Berries to Deliver Them to Plaintiff, to Whom Buyer had Sold Them, Enforceable by Plaintiff.</p> <p>10. Assuming that a contract may only be enforced by a third party for whose benefit it was made, where some fund or property has come into hands of the promisor, in consideration of which the promisor agrees to discharge a legal obligation owed by the promisee to a third party, where a fruit union sold berries to be grown by defendants to plaintiff, and defendants contracted with the union to deliver the berries direct to plaintiff, the rule might properly be invoked by plaintiff in support of its aetion against defendants.</p> <p>Agriculture — Berry-growers Held Bound by Contract of Sale Made by Fruit Union.</p> <p>11. Where an incorporated fruit union, organized by growers of berries to facilitate the sale and delivery of their fruit products, as their agent, made a contract for the sale of their berries to plaintiff, defendants were bound thereby, though the contract was in writing, and executed in the name of the agent alone; its body clearly showing that the party executing it was acting as agent, and for whom he was acting.</p> <p>Injunction — Sellers of Berries Contracting to Deliver Them to Third Party may he Enjoined hy the Third Party from Selling Them Elsewhere.</p> <p>12. Where a fruit union contracted to sell berries to be .grown by defendants to plaintiff, and defendants contracted with the union to deliver the berries direct to plaintiff, if defendants be regarded as strangers to ■ the contract of sale, plaintiff is still entitled to an injunction against the sale of the berries elsewhere under the rule that a stranger, wrongfully inducing another to commit a breach of contract, or intentionally disabling him from discharging his obligations, is liable in damages, or, in a proper ease, may be enjoined.</p> <p>Agriculture — Fruit Union Contracting for Sale of Grower’s Berries, Held to have Power, Coupled With Obligation Preventing Revocation of Agency.</p> <p>13. A fruit union which, with authority from the growers of berries, contracted to sell and deliver all the berries raised by them during a number of years and subjected itself to liability for damages for failure to make such deliveries, had such a power, coupled with an obligation, as prevented a revocation of the agency.</p> <p>12. On right of action for damages for inducing breach of contract, see notes in 16 L. R. A. (N. S.) 746; 28 L. R. A. (IV S.) 615, and L. R. A. 1915F, 1076.</p> <p>Civil liability for interference with contract relations, see notes m 2 Ann. Cas. 241; 11 Ann. Cas. 33-7; Ann. Cas, 1912B, 1162; Ann. Cas. 19164 608.</p>

<p>Quieting Title — Equity has Jurisdiction in Suit as to Personal Property on Answer to Merits and Prayer for Equitable RSlief,</p> <p>1. Equity has jurisdiction over a suit to quiet title to personal property where the defendant answered to the merits and prayed for equitable relief.</p> <p>Action — Suing on One of Two Separable Provisions for Enforcement of Contract is not Splitting Cause of Action.</p> <p>2. Where a contract for the sale of a sawmill provided that collections for lumber sold should be made through a designated bank which should credit the seller with a stated sum on all lumber sold, but that the entire purchase price must be paid within one year regardless of the quantity of lumber sold, the provision for collection through the bank was a separate remedy from the provision for collection by retaking the property under the .reserved title, so that the bringing of an action by the bank for the specified payments on the lumber actually sold did not waive the seller’s right to hold the property under his reserved title until the balance of the purchase price was paid.</p> <p>Action- — Rule Against Splitting Cause of Action may be Waived by Debtor.</p> <p>3. The rule against splitting a cause of action is for tie protection of the debtor, and. he may waive its benefits by expressly or impliedly consenting to the institution of separate actions upon a single demand.</p> <p>Sales — Remedies of Conditional Seller Stated.</p> <p>4. A conditional seller of personal property after default by tbe buyer may treat the contract as rescinded and recover his goods, which defeats any other remedy; may treat the contract as in force but broken, and retake the goods and sue for damages for the buyer’s breach; may waive a return of the goods and recover from the buyer the agreed price; or may, in some cases, if the contract permits it, without rescinding, resume possession of the goods, hold them subject to the contract, and enforce performance by the buyer, who, upon such performance, will be entitled to restoration of the goods.</p> <p>Sales — Recovery of Portion of Price Payable from Sale of Products Held not an Election Against Claim and Title.</p> <p>5. Where a conditional sale of a sawmill provided for payment of a portion of the purchase price from the sale of lumber, the receipt by the seller of -such portion, which was collected by an action in the name of the bank authorized by the contract to collect it, was not waiver of the seller’s right to retake possession of the sawmill on the buyer’s default in paying the balance.</p> <p>Sales — Buyer can have Possession After Retaking by Seller Without Rescission by Paying Balance Due.</p> <p>6. Where the conditional -seller of a sawmill retook possession of the property, as he was authorized to do under the contract, without rescinding the -contract but to enforce payment of the' balance of the purchase price, the buyer, or those holding under him, is entitled to possession of the mill upon compliance with the terms of the contract.</p> <p>Sales — Allowing Buyer Additional Time to Pay Does not Waive Reserved Title.</p> <p>7. A conditional seller of goods does not waive his reserved title by allowing the buyer- an additional time within which to pay the balance due on tbe purchase price.</p> <p>Execution — Subsequent Buyer at Execution Held not Prejudiced by Acts of Conditional Seller.</p> <p>8. Where a conditional seller of a sawmill had retaken possession of the mill without rescinding the contract but to force payment of the balance due under his contract, a buyer of the mill at a sale under execution against the original buyer, whieh sale was expressly made subject to the rights of the original seller, was not prejudiced by the acts of the seller in availing himself of other remedies to recover a part of the purchase price.</p> <p>4. Rights and remedies of seller under conditional sale where buyer defaults in payment of purchase price, see notes in 133 Am. St. Rep. 563; 1 Ann. Cas. 268; 16 Ann. Cas. 1057; Ann. .Cas. 1917D, 464; 32 L. R. A. 455; 38 L. R. A. (H. S.) 891.</p> <p>6. On effect of retaking of property by seller on the rights and remedies of the parties to a contract of conditional sale, see note in L. R. A. 1916A, 915.</p> <p>Sales — Whether Conditional Seller has Waived Eight to Betake Possession is Question of Fact.</p> <p>9. No general rule in regard to waiver by a conditional seller of his right to retake possession of the goods to be laid down other than that such waiver may be inferred whenever the conduct of the seller is inconsistent with the idea that he still expects to enforce his right to return of goods, and whether such is the ease or not is a question of fact.</p> <p>Sales — Possession Betaken by Conditional Seller Gives Title Good Against Everybody.</p> <p>10. Where the conditional seller of goods retook possession under his reserved title before any other right or lien attached to the goods, his title was good against everybody:</p> <p>Sales — Conditional Seller has Bight to Possess After Buyer.’s Default.</p> <p>11. The Tight of possession of personal property is, as a general rule, in a person holding the legal title, and, though a conditional sale contract in whieh the seller reserved title usually contains a provision permitting the buyer to take possession until default, the seller becomes entitled to possession upon default until the buyer redeems.</p> <p>Sales — Conditional Seller Brought into Equity by Subsequent Buyer can have Conditional Contract Foreclosed.</p> <p>12. Where the conditional seller of a sawmill was brought into equity by a subsequent buyer of the mill at sale under execution against the original buyer, the seller can have his contract foreclosed in such suit, regardless of whether such foreclosure was necessary.</p>

<p>Judgment — Foreclosure to Enforce Money Payment in Exchange Does nót Bar Action for Fraud.</p> <p>1. Under Section- 756, Or. L., providing that in certain eases judgment, in respect to the matter directly determined, conclusive between the parties and their representatives, etc., the foreclosure of a contract of exchange of property for failure to pay a balance due thereon does not prevent bringing an action for fraudulent representations in making the exchange.</p> <p>Fraud — Remedies Avialahle.</p> <p>2. A party induced to enter -a contract by fraud may either affirm it and sue for damages, or rescind it and be reinstated in the position in which he was before it was consummated.</p> <p>Contracts — To Rescind Because of Fraud, Party must Act Promptly.</p> <p>3. To rescind a contract on the ground of fraud, a party must act promptly on discovery of it.</p> <p>Election of Remedies — Attempted Rescission of Party Who had Lost Right to Rescind Does not Prevent Suit for Fraud.</p> <p>4. In an exchange of property where plaintiff had been in possession over a year before offering, to rescind, he had by delay lost the right to rescind, and his attempt to rescind in a foreclosure suit does not prevent him from suing for damages for fraudulent representations.</p> <p>Fraud — Instruction Defining “Fiduciary Relation” Held Correct.</p> <p>5. In an action for fraudulent representations concerning an exchange of property, where plaintiff was -sick and unable to go to see the property of defendant, whom he asked to describe the property, an instruction that .a “fiduciary relation” exists whenever there exists a confidence enabling the person in whom it is reposed to exert influence over the person trusting him when parties to a transaction do not meet upon equality, one party having a full knowledge -and the other not, and the latter places confidence in the former, was proper.</p> <p>4. Pursuit of mistaken remedy as election of remedies, see note in 5 Ann. Cas. 962.</p>

<p>Fraudulent Conveyances — Evidence Held to Show Conveyance to Housekeeper was to Defraud Creditors, and That Debtor Owned Interest in Land Acquired With Proceeds of Conveyance.</p> <p>1. In a suit to subject lands held in the name of one defendant to the payment of judgments against the other defendant, evidence held to show that the conveyance of the judgment debtor’s interest in lands previously owned by the two defendants to the codefendant, who was the debtor’s housekeeper, was intended to defraud the debtor’s creditors, and that the debtor owned an interest in lands subsequently conveyed to the codefendant and paid for from the proceeds of the sale of the original land, even if the first conveyance to the eodefendant was in consideration of a debt due her.</p>

<p>Appeal and Error — Time for Filing Undertaking cannot be Extended by Court.</p> <p>1. Under Section 550, subdivision 2, L. O. L., providing that undertaking must be filed within ten days after notice of appeal, trial court has no power to extend before default time for filing undertaking, though subdivision 4 provides that in certain cases default in filing may be excused.</p> <p>Appeal' and Error — Failure to File Undertaking Within Ten Days After Notice of Appeal Excused by Court.</p> <p>2. .Where appellant mistakenly thought the court could extend fche time for filing undertaking on appeal, required by Section 550, subdivision 2, L. O. L., to be filed within ten days after notice of appeal, and did not file sueh undertaking until after the ten days, the Supreme Court by virtue of subdivision 4 would relieve appellant of the default; the statute being for the first time construed in this respect.</p> <p>ON THE MERITS.</p> <p>Bankruptcy — Trustee in Bankruptcy After Discharge Entitled to Proceeds of Note not Scheduled.</p> <p>3. Where a note was made to an officer of a corporation for money due it, and the officer, in anticipation of voluntary bankruptcy of the corporation, did not include the note in its schedule of assets, but destroyed it and permitted the matter to remain without any written evidence of the indebtedness until after the corporation had been discharged in bankruptcy when a new note for the debt was made to the officer, the note was an asset of the corporation, and the trustee in bankruptcy was entitled to the proceeds thereof.</p> <p>Appeal and Error — One Having No Eight to the Proceeds of a Note cannot Complain of Allowance of Attorney’s Fee.</p> <p>4. On a complaint in the nature of a bill of interpleader, where an officer of a bankrupt corporation claimed the proceeds of a note given to him personally, and the court held that the note was an asset of the corporation, he could not complain of an attorney’s fee allowed out of the same.</p>

<p>Divorce — Husband’s Failure to Require His Children to Treat Their Stepmother Respectfully Made Their Conduct His Own.</p> <p>1. A husband owes his wife the duty of protection from insult and abuse from his children by a former marriage, and his failure to punish and correct his children for misconduct and disobedience to their stepmother made their conduct the husband’s own, even though he did not encourage them in their treatment of the wife.</p> <p>Divorce — Wife’s Failure to Treat Stepchildren With Consideration is Misconduct.</p> <p>2. It is the duty of a wife to exert herself to promote the welfare of her stepchildren and to treat them with consideration and kindness.</p> <p>Divorce — False Accusation Against Husband as Ground must be Considered in light of His Accusation Against His Wife.</p> <p>3. In proceedings for divorce, an accusation by the wife that her husband had had improper sexual relations with his daughter must be considered in the light of all the related transactions occurring between the parties, including the husband’s charge that the wife had attempted to poison the daughter.</p> <p>Divorce — Condonation Shown by Evidence but not Pleaded can be Considered.</p> <p>4. Where the evidence elearly shows that a matrimonial offense has been condoned, the court may consider such condonation, although not pleaded.</p> <p>1. On abuse by relatives of other spouse as cruelty constituting grounds for divorce, see note in 3 A. L. R. 993.</p> <p>4. On the question of condonation of • cruel treatment as defense in divorce decree, see note in 14 A. L. R. 931.</p> <p>On condonation of matrimonial offenses, see notes in Ann. Cas. 19120, 3; Aun. Cas. 1918A, 651; 6 B. R. C. 589.</p> <p>Divorce — Husband cannot Rely on Repetition of Condoned Accusation, Where He also Repeated False Accusation Against His Wife — Parties Equally at Fault not Entitled to Divorce.</p> <p>5. A liusband cannot rely for divorce upon a false accusation by his wife, charging him with immoral conduct with his daughter, repeated at the trial after having been previously condoned by him, where he at the trial repeated a false aeeusation that his wife had attempted to poison the daughter, which had likewise been previously condoned, but such recriminations at the trial leave the parties equally at fault as they were originally, and neither ,is entitled to the divorce.</p>

<p>Descent and Distribution — Heirs not Suable, Where Claims not Presented Against Estate.</p> <p>1. In view of Sections 1238, 1239, Or. L., relating to presentation of claims against estates of decedents, where an action was begun prior to testator’s death and after his decease no claim was presented during the administration of his estate by plaintiff, after such final settlement, plaintiff’s claim was barred, and heirs of decedent .could not be substituted as parties defendant.</p> <p>1. Lacbes or neglect of creditors in enforcing elaim against estate of deceased as precluding enforcement against heirs or devisees, see note in Ann. Cas. 1917C, 95.</p>

<p>From Marion: George G. Bingham, Judge.</p> <p>In Banc.</p>

<p>Schools and School Districts — Incorporated Trustees of Church School Held Empowered to Sell Property Conveyed in Trust to Them for the School — “Dispose of.”</p> <p>1. Where land conveyed to a bishop and his successors in trust, without any restrictions as to the use thereof, and paid for with funds of a church for which it was presumably purchased, was conveyed by the bishop as trustee to five persons as members of the board of trustees of a school established on the land, authorized by a resolution of a church convention to “manage, expend and dispose of” all property held in trust by the bishop, the bishop’s deed reciting that the land was conveyed to him in trust, and that ho held it in trust for sueh school, a contract for the sale of the land by sueh trustees, as a corporation created pursuant to the resolution to which they conveyed it in trust for the perpetual use and maintenance of the school, was enforceable as a contract to sell for the use and benefit of sueh school, as against the objection that the deeds obligated the corporation to oeeupy the land for school purposes and prohibited the sale thereof, the bishop and those in privity with him being estopped by the recitals in his deed from denying that he possessed a more restricted estate, and being also prevented from prescribing restrictions not authorized by the church’s resolution, which in granting power to the trustees to “dispose of” the land accompanied with a grant of power to “manage” and “expend” granted power to sell.</p>

<p>Licenses — Automobile License Law Designed for Revenue and to Regulate Operation of Motor Vehicles.</p> <p>1. Automobile license law was designed not only to regulate the operation of motor vehicles on public roads and streets but also for raising revenue.</p> <p>Licenses — City Owning Automobiles not Exempt from State License Regulation.</p> <p>2. Laws of 1919, page 153, Section 1, subdivision 2 (Section 4235, Or. L.) in so far as it related to exemption from taxation of automobiles belonging to a city of the state for use in governmental purposes, does not affect the duty of the city to comply with the provisions of Laws of 1919, page 704, regulating the operation of motor vehicles.</p> <p>Licenses — City-owned Vehicles not Expressly Exempt from State License Law are Subject to It.</p> <p>3. Laws of 1919, page 724, Section 43, regulating operation of motor vehicles on public roads, having expressly exempted from registration and licensing federal-owned motor vehicles and traction engines, fire-engines, ete., those not within the exception were without it, and city-owned vehicles other than expressly mentioned were subject to the statute.-</p> <p>Evidence — Common Knowledge That Fire-engine is Distinguishable from Other Motor Vehicles.</p> <p>4. It is a matter of common knowledge that fire-engines are of a separate class and readily distinguishable from other motor vehicles, while automobiles, when being used by officers or employees of a city, are not.</p> <p>Taxation — Legislature may Impose Tax on Property Owned by Municipality.</p> <p>5. The legislature may impose taxes on the property of a municipality provided it is not done to conflict with Article IX, Section 1, Constitution, and Article I, Section 32.</p> <p>Statutes — Statute may Combine Police Regulation and Exercise of Taxing Power.</p> <p>6. No objection can be made to the validity of a statute on the sole ground that it combines a police regulation and an exereise of the taxing power, provided sueh law operates uniformly.</p> <p>Licenses — Driver of City’s Automobile is Subject to Penalty for not Having License Plates Within State License Act.</p> <p>7. Laws of 1919, page 704, providing a penalty for driving a motor vehicle upon the public streets of a city without license plates displayed thereon, applies to a chauffeur for a city driving a city-owned automobile upon city streets without sueh number plates so displayed.</p> <p>Statutes — Where Statute Conflicts, One Containing Special Provision Controls Over General.</p> <p>8. Where there is a conflict between statutes, both of which would otherwise have equal foree and effect, and the provisions of one are special and those of the other general, the special provisions prevail over the general.</p>

<p>From Coos: John S. Coke, Judge.</p> <p>Department 1.</p>

<p>From Multnomah.: Robert Tucker, Judge.</p> <p>Department 1.</p> <p>This suit involves the foreclosure of seven mechanics’ liens. Four of the claimants, namely, Christman, Portland Hardwood Floor Co., W. L. Stevens, and F. R. Sanders, were subcontractors and performed labor and furnished material, and have completely performed their subcontracts. Each of them failed to give notice to the owner, as required by the statute, that material was being furnished to the contractor, and that a lien might be claimed for such material. O. A. Phillips and C. E. Winston jointly claimed a lien for work and labor only. J. A. C. Tait & Co. and Inman Poulsen Lumber Co. each claimed a lien for material, and each gave notice to the owner as required by the statute. F. R. Salway is the owner of Lot 6, Block 4, Evanston, an addition within the corporate limits of the City of Portland. T. C. Niner was the original contractor and contracted with each of the claimants for the labor and material for which the liens are claimed. He had contracted with the owner to furnish the material and labor, and to construct a dwelling-house and garage upon said lot. He has been paid in full, and has since been adjudicated a bankrupt and discharged from his liabilities.</p> <p>Christman commenced this suit to foreclose his lien, naming as defendants the owner, the contractor, and the other of said lien claimants, who each filed answers setting up their respective liens, and prayed for the foreclosure thereof. After a trial, a decree was entered, foreclosing each of said liens. The first four mentioned were decreed to have a lien for labor only; the remaining claimants were decreed a lien for the full amount claimed. Christman, in addition to his labor, was allowed an item of $20, charged for the construction of a sump-trap installed at the instance of the owner himself. Prom this decree the owner has appealed.</p>