Volume 104 — Oregon Reports

<p>Forgery — Indictment and Information — Allegation Held Sufficient as to Forgery of Instrument.</p> <p>1. Where indictment under Section 1996, Or. L., plainly charged that defendants, acting together unlawfully, willfully, knowingly and fraudulently, and with intent to injure and defraud, did forge and knowingly utter and publish as true and genuine an instrument set foith in the indictment, it was not necessary to further proceed to allege that the deed was forged, and was not true and genuine, and sueh an allegation would be surplusage.</p> <p>Indictment and Information — Forging and Uttering Joined in Indictment.</p> <p>2. An allegation of forging and uttering may be joined in an indictment under Section 1996, Or. L.</p> <p>Indictment and Information — Several Acts Charged Conjunctively as One Offense.</p> <p>3. Where several acts are enumerated alternatively in a statute, the doing of each one being prohibited under a given penalty, they may be charged • conjunctively ¡as one offense when not repugnant to each other.</p> <p>Forgery — Unnecessary to Charge That Defendant Forged Name of Person.</p> <p>4. . It is not essential that an indictment for forgery charge that the defendant forged the name of the person whose signature purports to be signed to the instrument, since an allegation that an instrument is forged shows that every part of such document is falso, and not true and genuine.</p> <p>2. Joinder of counts for forgery and uttering forged instrument, see note in 21 Ann. Cas. 237.</p> <p>Forgery — Criticism of Indictment Held Without Merit.</p> <p>5. Criticism that words “unlawfully, willfully, knowingly, .and fraudulently” within an indictment for forgery did not help the indictment for the reason that their use was confined entirely to an allegation of conspiracy, and that they might modify either prior or following words, held without merit.</p> <p>Forgery — Held Competent Under Indictment to Show Forgery of Deed Before Same was Recorded.</p> <p>6. Where indictment for forgery set out a deed whieh contained certificate of recorder that it was filed, there was no merit in contention that it was incompetent to show the forgery of the deed before it was recorded by reason’ of the fact that the indictment, as a matter of exactness in copying the instrument, did not state that the notation of the recorder was indorsed thereon.</p> <p>Criminal Law — Certified Copies of Recorded Forged Instrument Admissible.</p> <p>7. In a prosecution for forgery of a deed, it was proper to admit in evidence certified copies .of the record of the deed, without accounting for the original instrument or giving notice to the defendant to produce it, under Section 9877, Or. -L.</p> <p>Criminal Law — Weight of Evidence for Jury.</p> <p>8. The weight of testimony was a matter fox the consideration of the jury, and is not for the Supreme Court.</p> <p>7. Secondary evidence of forged instrument in prosecution for forgery, see note in Ann. Cas. 1912A, 916.</p>

<p>Goodwill — Covenant not to Engage in Like Business not Transferable by Buyer.</p> <p>1. Where plaintiff bought out defendant’s music business, and a contract was made whereby defendant agreed not to engage in a like business in the county, such covenant did not run with the business of dealing in personal property, and was not transferable.</p> <p>Pleading — Defects of Statement in Complaint Cured by Answer.</p> <p>2. In an aetion for defendant’s breaeh of contract not to engage in the same kind of business as he sold, in whieh the complaint charged defendant with violating such covenant, without alleging plaintiff’s performance of the terms of the eontraet, defendant’s answer, setting up the eontraet in full, cured any defective statement of the cause of action.</p> <p>Evidence — Goods Arriving in the Future not Included in Sale of Goods “How” Located in Store Building.</p> <p>3. In an action for breach of contract not to engage in business similar to that sold by defendant, the recited consideration being “one dollar and other valuable consideration” for the property “ ‘now’ located in the New Foley Building,” such contract could not be enlarged to include a carload of pianos to arrive in the future.</p> <p>Contracts — Contract not to Engage in Business at Certain Place is Valid.</p> <p>4. A contract that one of the parties who sells the goodwill of a business shall not engage in like business in a certain place is valid.</p> <p>ON PETITION FOB BEHEABING.</p> <p>Evidence — Only Consideration of Written Contract Subject to Explanation is a Monetary One.</p> <p>5. The consideration for a written contract which is subject to explanation is a monetary and not a contractual one.</p> <p>Goodwill — Agreement not to Engage in Business is Transferable With Business and Goodwill.</p> <p>6. An agreement made in connection with a sale of a business, not to engage in similar business in that city, though it is not an agreement which runs with the business, and cannot be enforced by the buyers of any or all of the goods sold with the business, is one which can be transferred by the buyer of the business in connection with a resale by him of the business and the goodwill.</p> <p>Goodwill — Complaint Held not'to Allege Assignment of Interest in Business Connected With Agreement not to Compete.</p> <p>7. A complaint alleging that after plaintiff, who had theretofore been engaged in the music business, had purchased defendant’s stock and business in connection with which defendant agreed to refrain from engaging in competing business, with buyer transferred an undivided half interest in his. music business to his co-plaintiff, does not establish that he assigned an interest in the business and goodwill he purchased from defendant, and therefore does not show that coplaintiff has any right to enforce the contract to refrain from competing.</p> <p>4. On sale of business and goodwill as a limitation upon vendor’s right to engage in competing business, see notes in 21 Ann. Cas. 427; Ann. Cas. 1914B, 587; 19 L. B. A. (N. S.) 762; L. B. A. 1918F, 1179.</p> <p>6. For authorities discussing the question of enforceability by the purchaser of a business of a covenant of a third person with his vendor not to engage in a similar business, see note in 4 A. L, B. 1078.</p> <p>ON OBJECTIONS TO COST BILL.</p> <p>Costs — Verification of Statement Held Sufficient.</p> <p>8. A verification of the statement of appellant’s costs and disbursements by his attorney, which stated that, exeept for the fees of officers, the disbursements therein above set forth were necessarily incurred by the appellant, who was entitled to recover them from the respondent, is sufficient in form, in view of Section 569, Or. L., entitling a party to a disbursement, whither the same has been paid or not by him.</p> <p>Appeal and Error — Judgment for Costs Against Plaintiff Supports an Appeal After Selling Subject Matter.</p> <p>9. Where an injunction was denied, and the costs of suit were taxed against plaintiff, the latter has an interest in the judgment sufficient to support an appeal therefrom, though he has since sold the business in connection with which defendant made the promise not to engage in competing business.</p> <p>Appeal and Error — Objection That Appellant had Transferred His Interest Should have Been Suggested Before or at Hearing.</p> <p>10. The objection that appellant had lost an interest in the decree sufficient to support an .appeal therefrom by a subsequent sale of the subject matter of a suit should have been suggested by respondent before, or at least at the time, the cause came on for hearing in the Supreme Court.</p>

<p>Landlord and Tenant — Provision for Payment of Rent on or Before Tenth Day of Month Refers to Rent of Month in Which Payment Made.</p> <p>1. A lease requiring the monthly rent to be paid on or before the tenth day of each month meant that the rent should be paid on or before the tenth day of the month to which the payment was applicable, and not that the rent of the following month or preceding month should be so paid.</p> <p>Landlord and Tenant — Lease Authorizing Landlord to Retake Possession on Default was Valid.</p> <p>2. A lease making time the essence of the agreement and providing that in case of default in paying monthly rentals the landlord might re-enter, retake possession of the land and personal property, remove all persons therefrom, and terminate the lease, though a hard contract, was valid.</p> <p>Landlord and Tenant — Tender of Rent by Subtenant Declined by Landlord Held an Insufficient Tender.</p> <p>3. There is neither privity of estate nor of contract between a lessor and a subtenant of the lessee, and the subtenant could not compel the lessor to accept rent from her, and her tender of rent to the lessor was insufficient as a tender of the rent.</p> <p>Landlord and Tenant — Tender of Cheek Marked to Apply on December Rent Held not Sufficient Tender of November Rent.</p> <p>4. Under a lease making the rent for each month payable on or before the tenth day of the month, it was competent for lessee to tender the December rent on November 11th, and the offer on that day of a check stating on its face that it was to apply on the December rent was not a good tender of the November rent, especially as it was too late and was made payable to the tenant in trust for the landlords and not indorsed by anyone.</p> <p>Landlord, and Tenant — Landlord Re-entering Held not to have Con. verted Tenant’s Property by Forbidding Trespass.</p> <p>5. A landlord who re-entered, rightfully and took possession of the property for default in the rent held not to have converted the household goods and wearing apparel by posting a notice for. bidding trespasses by the tenant or his representatives, as the tenant would not have committed a trespass bj- going on the premises- without a breach of the peace only to move his property without unnecessary delay or damage.</p> <p>Landlord and Tenant — Landlord Re-entering Held not to have Con. verted Personal Property by Warning Tenant not to Go on Premises.</p> <p>6. A landlord who had the right to and did re-enter and take possession for default in the payment of rent held not to have converted, the tenant’s household goods and wearing apparel by telling the tenant that he could not come on the premises or set foot thereon without an officer of the law.</p> <p>Landlord and Tenant — Right to Re-enter and Remove All Persons Includes Right to Remove Goods.</p> <p>7. A landlord’s right under a lease to re-enter and take possession, terminate the lease, and expel and remove all persons from the premises in case of default in the payment of rent necessarily includes the right to remove the goods of such persons, and such removal is not a conversion if done with reasonable dispatch.</p> <p>Landlord and Tenant — Temporary Interference With Tenant’s Possession of Personal Property Held Necessary Incident of Right to Resume Possession.</p> <p>8. Where a landlord was entitled to and did re-enter and take possession on default in the payment of rent his keeping the tenant temporarily out of the possession of household goods and wearing apparel held a necessary incident of his right to resume possession.</p> <p>Trover and Conversion — Judgment Transfers Title.</p> <p>9. The effect of a judgment in trover and satisfaction thereof is to transfer to the defendant as of the date of the conversion the title to the property converted.</p> <p>Trover and Conversion — Evidence of Mistreatment of Property After Conversion Immaterial.</p> <p>10. Since satisfaction of a judgment in trover transfers title to defendant, evidence of maltreatment of the property by defendant or those acting for him after the conversion is inadmissible.</p> <p>Evidence! — Receipts Hearsay and Inadmissible Between Third Per. sons to Show Amounts Paid.</p> <p>11. Receipts from dealers for payments for furniture were hearsay and inadmissible between third persons to show the amounts paid for the furniture.</p> <p>Landlord and Tenant — Landlord Re-entering Held not to have Converted Cattle Where He Did not Deny Defendant’s Title.</p> <p>12. A landlord who had the right to and did re-enter and take possession for default in-the payment of rent did not convert the defendant’s cattle where he never claimed title to them or did any act inconsistent with plaintiff’s title.</p> <p>Trover and Conversion — Measure of Damages Stated.</p> <p>13. The true measure of damages for the conversion of personal property is its reasonable market value at the time and place of conversion.</p> <p>Trover and Conversion — Evidence of Value at Time Other Than Conversion of Doubtful Admissibility.</p> <p>14. In an action for the conversion of personal property, the admission of remote transactions respecting the value of the property at some former time is of doubtful propriety, and not to be encouraged, especially where the' property has a known market value at the time of the conversion.</p>

<p>Prom Yamhill: Harry H. Belt, Judge.</p> <p>In Banc.</p> <p>Plaintiff instituted this action to recover damages for injuries, which she alleged she sustained because of the defective condition of a sidewalk in the defendant city.</p> <p>The defendant George Larkins was the mayor, and defendants L. M. Moore, Thomas Sutton, D. D. Coulson, W. W. Silver and Q. M. Keiling were members of the common council of said defendant City of Newberg.</p> <p>A trial was had, and at the conclusion of plaintiff’s evidence, the court granted a judgment of non-suit in favor of the mayor and councilmen of said city, and denied a motion for like judgment interposed in behalf of the defendant city. The trial resulted in a verdict and judgment against the defendant City of Newberg, and the latter prosecutes this appeal from that judgment.</p> <p>Plaintiff appeals from the judgment of nonsuit in favor of the mayor and members of the common council.</p> <p>The evidence disclosed that plaintiff is seventy-nine years of age, and that on July 8, 1919, she was walking with her daughter along Willamette Street, near Eighth and Ninth Streets, in the City of New-berg, a short distance from the place where she had resided for a number of years; and that while she was proceeding along the sidewalk, the daughter of plaintiff stepped upon one of the boards in the walk, which broke under her weight, causing the other end to tip up sufficiently to catch the plaintiff’s foot or toe, whereupon she • fell, severely injuring her arm and shoulder.</p> <p>It further appeared in the testimony that the sidewalk in question was constructed and laid about ten years previous to plaintiff’s injury; that no repairs thereon had been made since it was constructed, and that no inspection or examination had been made thereof, for the purpose of ascertaining the condition or state of repair of the walk, for several years at least, prior to plaintiff’s injury, with the exception that perhaps one or more members of the common council might have passed along the street or over the walk, directing casual observations thereat. No actual notice had been given defendant of any defect therein.</p> <p>There was some evidence that the board which broke and injured plaintiff had become weakened by decay; there was some evidence that the board broke because of a large knot therein, which so weakened it that it would not sustain the weight of a pedestrian without breaking; there was also evidence that the board which broke, together with other boards along this portion of the sidewalk had been permitted by time and inattention to become loose, and that the nails which originally held the boards in place had disappeared.</p>

<p>Trusts — Created in Personalty by Writing or Orally.</p> <p>1. The owner of personal property can create a trust either orally or by writing.</p> <p>Evidence! — Trust Created by Writing not Varied by Parol.</p> <p>2. If a writing is employed to create a trust, its terms cannot be varied by parol.</p> <p>Evidence — Extrinsic Evidence Inadmissible to Construe Unambiguous Contract.</p> <p>3. Where the language of a writing is clear and unambiguous, extrinsic evidence is not admissible to aid the construction, but where the language is ambiguous or susceptible of conflicting interpretations, evidence of the circumstances under whieh the writing was made is admissible.</p> <p>Evidence — Where Letter Eelied on to Create Trust was Ambiguous, Prior Letters and Oral Statements of Settlor Admitted to Ascertain Meaning of Words Used.</p> <p>4. Where the language of a letter relied on to create a trust was not, when standing alone, free from ambiguity, and was susceptible of more than one construction, prior letters and oral statements of the decedent and acts done by him were admissible to ascertain the meaning of the words used by the letter.</p> <p>Gifts — To Effect “Gift Inter Vivos” Donor must Divest Himself of Thing Given.</p> <p>5. To effect a gift inter vivos, a donor must divest himself of the thing given and transmit the title to it to the donee gratuitously, and the gift operates immediately.</p> <p>Gifts — Conditional Delivery Defeats Gift Inter Vivos.</p> <p>6. A delivery accompanied with a condition which constitutes a condition of delivery or of title prevents the consummation of a gift inter vivos.</p> <p>Gifts — “Gift Causa Mortis” Defined.</p> <p>7. A gift causa mortis is a gift of personalty made under apprehension of the approach of death from some existing disease or other impending peril, with the implied condition that it shall take effect absolutely only upon the death of the donor, caused by the disease from which he is then suffering or the peril impending.</p> <p>Gifts — Gift Causa Mortis Subject to Conditions Implied by Law.</p> <p>8. A gift causa mortis is made subject to three conditions implied by law, the occurrence of any one of whieh will defeat the gift: (1) Recovery of the donor from sickness or delivery from peril; (2) revocation before death; (3) death of donee before death of donor.</p> <p>6. Revoeability of conditional gift inter vivos, see note in Ann. Cas. 1915D, 695.</p> <p>7. Gifts causa mortis, see note in 99 Am. St. Eep. 890.</p> <p>For authorities discussing the question as to the general rule that parol evidence not admissible to vary, add to or alter the terms of a written contract, see notes in 56 Am.. St. Eep. 659; 17 L. E. A. 270.</p> <p>As to whether donor’s expectation that the donee will allow him to share in the benefit of the property raise an implied trust to that effect, see note in 24 L. E. A. (N. S.) 1043.</p> <p>As to whether delivery of personalty to third person with directions to deliver after donor’s death is valid gift, see note in 3 A. L. E. 902.</p> <p>Gifts — "Gifts Inter Vivos” and “Gifts Causa Mortis” Distinguished.</p> <p>9. In both classes of gifts title is transferred and vested in the donee, but, in ease of a gift inter vwos, the title is not" only-transferred and vested but the gift is immediately completed and is irrevocable, while in a gift causa mortis, although there is present transfer of title, the transfer may be defeated by the happening of one of the conditions implied by law.</p> <p>Gifts — Certificates of Deposits Mailed to Son Held not a Gift.</p> <p>10. Where a father mailed deposit cheeks to Ms son, with a letter stating “you will keep safely for me in case I come to need any part or all of them and if I never need them they are all yours when I am done with them,” held, that the certificates were not delivered as a gift inter vwos, nor did the circumstances sustain a gift causa mortis.</p> <p>Gifts — Letter of Claimant Interested in Litigation of Estate Written Shortly After Decedent Died Incompetent.</p> <p>11. A father mailed deposit checks to a son with a letter directing that the son should keep the checks in case the father needed any part or all of them or if the father never needed them they -were to be the son’s, and, in an action by the father’s administrator for possession of the checks, where there was nothing in the record disclosing that the cheeks were intended as a gift causa mortis and no evidence of impending illness of the father, a letter written by another son shortly after the father’s death, which contained statements about the father’s condition, was incompetent.</p> <p>Trusts — Owner of Personalty may Create Trust by Delivery and Transfer of Title to Trustee for Another's Benefit.</p> <p>12. The owner of personalty may create a trust in it by delivery and transfer of title to a trustee, to be held for the benefit of another.</p> <p>Gifts — Distinguished from “Gift Inter Vivos” — “Voluntary Trust.”</p> <p>13. The difference between a gift inter vivos and a voluntary trust is that, in a gift, the thing itself with title passes to the donee, while, in a voluntary trust, the actual title passes to a cestui que trust while the legal title is retained by the settlor, to be held by him for the purposes of the trust or is by the settlor transferred to another to hold for the purposes of the trust.</p> <p>Trusts — Voluntary Trust must Operate as Present Transfer.</p> <p>14. To be effective, a voluntary trust must so operate as presently to transfer an interest in the thing, and the legal estate must be separated from the beneficial enjoyment, and the moment the two estates merge in the same person the trust ends.</p> <p>Trusts — Implies Legal and Equitable Estates.</p> <p>15. A trust implies two estates, one legal and the other equitable, and also that the legal title is held by the trustee, while another, the cestui que trust, has the beneficial interest.</p> <p>Remainders — Personalty may be Limited by Way of Remainder.</p> <p>lfi. Personal property may be limited by way of remainder, after a life interest created at the same time.</p> <p>Trusts — Created for Benefit of Settlor During Life With Remainder Over.</p> <p>17. A trust may be created for the benefit of the settlor during his life, with remainder to other persons.</p> <p>Trusts — Power of Revocation may be Reserved.</p> <p>18. The power of revocation may be reserved by the creator of a trust and if not exercised during his life, the trust remains unaffected and such reservation does not affect the legal title of the property, for that passes and remains vested for the purposes of the trust, notwithstanding the existence of the right to revoke.</p> <p>Trusts — Letter Creating Trust Held not to Reserve Right to Revoke.</p> <p>19. Where father mailed deposit cheeks to a son, with a letter that the son should “keep safely for me in case I come to need any part or all of them and if I never need them they are all yours when I am done with them,” held, that the father did not reserve the right of revocation.</p> <p>Trusts — No Objection That Trustee a Beneficiary.</p> <p>20. It is no objection to the validity of a trust that the trustee is one of the beneficiaries.</p> <p>Wills — “Trust” Distinguished from “Will.”</p> <p>21. The difference between a will and a trust is that a will operates from the moment of death, while a trust operates in praesenti to a certain extent.</p> <p>Trusts — Settlor may Make His Death the Event a Future Interest Comes into Possession.</p> <p>22. A settlor of a trust may make his death the event on the happening of which the estate in interest, previously vested in praesenti but to be enjoyed in futuro, is to come into possession.</p> <p>Trusts — Enjoyment of Estate in Future Does not Negative Creation of Present Interest.</p> <p>23. That the enjoyment of a trust estate is postponed to a future date does not negative the idea that a present interest is created in favor of persons for whose benefit the trust is declared.</p> <p>Wills — Postponement of Enjoyment Until Settlor’s Death not Decisive of Testamentary Character.</p> <p>24. That an instrument postpones the enjoyment of the subject matter until the death of the settlor is not decisive that the instrument is testamentary in character.</p> <p>Wills — Test Whether Writing Creates Trust or is Testamentary Stated.</p> <p>25. The test whether a writing has effected a trust or is testamentary in character is whether the maker intended the instrument to have any effect until after his death or whether he intended to transfer some present interest.</p> <p>Trusts — No Particular Words Required to Create.</p> <p>26. No particular form of words is required to create a trust and whether one exists is to be ascertained from the intention of the party, as manifested by words used and the surrounding circumstances.</p> <p>Trusts — Use of Words Trust or Trustee not Essential to Create.</p> <p>27. To create a trust, the use of the words “trust” or “trustee” is not essential, but it is sufficient if the language used shows that the settlor intended to create.</p> <p>Trusts — Intention to Create must be Proved.</p> <p>2-8. The intention to create a trust must be clearly proved, and the language used must be such as to disclose with certainty an intention to create; there must be either explicit language expressing the trust or circumstances showing with reasonable certainty that a trust was intended.</p> <p>Trusts — Letter and Surrounding Circumstances Held to Create Trust in Son in Deposit Checks Received from Father.</p> <p>•29. Where deposit checks were mailed by father to his son, with a letter stating “you will keep safely for me in case I come to need any part or all of them and if I never need them they are all yours when I am done with them,” as supported by evidence of other letters and explanatory circumstances, held to create a trust in the son entitling him to the certificates.</p>