Volume 105 — Oregon Reports

<p>Appeal and Error — Necessary Papers must be Framed as Required by Statute.</p> <p>1. Under Section 548, Or. L., providing that a judgment or decree may be reviewed as prescribed in that chapter, and not otherwise, Section 550, requiring service of a notice of appeal and the giving of an undertaking, and Section 554, requiring the filing of a transcript, a party desiring to appeal must, at his peril, frame the papers necessary to his appeal as required by statute, or otherwise the court acquires no authority to determine the appeal.</p> <p>Appeal and Error — Court cannot Authorize Amendment of Notice of Appeal.</p> <p>2. Under Sections 548, 550 and 554, Or. L., authorizing review of judgments or deerees as prescribed in that chapter, and not otherwise, etc., the Supreme Court has no' power to authorize appellant to amend her notice of appeal.</p> <p>Appeal and Error — Notice of Appeal not Insufficient Because Wrong Date of Judgment Given.</p> <p>3. Under Section 550, Or. D., providing that a notice of appeal shall be sufficient if it contains the title, the names of the parties, and notifies the adverse party or his attorney that an appeal is taken from the judgment, order or decree or some specified part thereof, a notice of appeal is not insufficient because by mistake it gives a wrong date as the date of the judgment.</p> <p>Appeal and Error — Appellant must Lodge Transcript Showing Appealable Judgment Rendered Within Time for Taking Appeal.</p> <p>4. Under Section 550, subdivision 5, Or. L., requiring appeal to be taken within 60 days, and Section 554, requiring the filing of a transcript and providing that after compliance therewith the appellate court shall have jurisdiction, but not otherwise, appellant must lodge in the Supreme Court a transcript showing an appealable judgment rendered within the time allowed for taking an appeal.</p> <p>Appeal and Error — When Notice Contains Statutory Matters, Surplusage Does not Prevent Examination of Any Appealable Judgment.</p> <p>5. A properly served notice of appeal containing the matters required by Section 550, Or. L., when coupled with a regular undertaking and transcript, brings before the Supreme Court, for examination on appeal any appealable judgment in the suit or action therein entitled, though coupled with negligible surplusage.</p> <p>Appeal and Error — Notice of Appeal Should Show Appeal from Judgment in Particular Case Without Resorting to Evidence Other Than Transcript.</p> <p>6. An inspection of a notice of appeal ought to enable the Su-' preme Court, by fair construction or reasonable intendment, ■ and without resort to any other evidence than that which the transcript on appeal affords, to determine that the appeal is taken from a decree or judgment in a particular case.</p> <p>ON THE MERITS.</p> <p>Limitation of Actions’ — Trust Ex Maleficio not Impressed on Estate of Decedent Who in Good Faith Cut and Took Logs from Plaintiff’s Lands.</p> <p>7. That a decedent in his lifetime wrongfully cut and took logs from plaintiff’s land, and converted them to his own use, did not create a trust ex maleficio which could be impressed against decedent’s estate after the six-year period prescribed by Section 6, Or. L., for actions for trespass, where it did not appear that deceased did not aet in good faith, believing the timber to be his own.</p> <p>Executors and Administrators — Statute Barring Suit Against Executors Until Presentation and Disallowance of Claim Held Applicable Though Plaintiff has Equities Against Estate.</p> <p>8. Section 387, Or. L., providing that an action shall not be commenced against executors or administrators until plaintiff’s claim has been presented and disallowed, applies though plaintiff asserts equities against decedent’s estate.</p>

<p>Mandamus — Auditor’s Answer to Mandamus Held to State Fact Showing Ordinances for Payment to Contractor Were Void.</p> <p>1. In mandamus proceedings to compel the auditor to issue warrants to a public contractor as authorized by ordinances for the payment of extra compensation for the completion of the building, an answer, denying the allegations that the city arbitrarily changed the plans and specifications so as to increase the cost, and alleging faets showing that the increased cost was due to the contractor’s fault, is sufficient to state a defense, since the council could not authorize the payment of publie moneys if the increased cost was the contractor’s fault.</p> <p>Municipal Corporations — Changes in Specifications for City Building may Impose Legal Liability to Pay Extra Cost.</p> <p>2. Changes made by the city in the plans and specifications for a public building during the course of its construction, whereby the cost of constructing it is increased without the fault of the contractor, impose a legal obligation on the city for sueh increased cost which the city council can pay from public funds.</p> <p>Municipal Corporations — Changes in Plans and Specifications not Imposing Legal Obligation to Pay Increased Cost may Impose Moral Obligation Which may be Paid.</p> <p>3. Changes in the plans and specifications of a public building, whereby the cost of construction was increased which did not impose a legal obligation on the city to pay such increased cost, may nevertheless impose a moral obligation which the legislative body of the city can, in its discretion, pay.</p> <p>Municipal Corporations — Offer of City to Reimburse Contractor for Losses Held not Binding.</p> <p>4. Offer of city to reimburse a contractor for losses on condition that the contractor commenced legal proceedings and obtain a judicial determination, that the city council had authority to pay a moral obligation did not become a binding contract by reason of the passage of ordinances making an appropriation and the placing of a release in escrow by the contractor, where no judicial determination had been obtained as to the authority of the council to pay a moral obligation.</p> <p>Accord and Satisfaction — Accord not Followed by Satisfaction Revocable at Will.</p> <p>5. An accord is not a bar to an action on the original liability unless it has been followed by satisfaction, being revocable at will by either party.</p> <p>Accord and Satisfaction — Promise may be Accepted as Full Satisfaction of Original Obligation.</p> <p>6. Where the agreement is that the promise, and not the performance of the promise, is accepted as full satisfaction and extinction of the original obligation, there is an aecord and satisfaction, and the promisee has a right of aetion against the promisor for his failure to perform.</p> <p>Compromise and Settlement — Good Faith and Fairness Necessary.</p> <p>7. The very basis for the enforcement of a contract, compromising a disputed claim, is that the parties should have acted in good faith, and that the transaction should be fair.</p> <p>Accord and Satisfaction — Compromise and Settlement — Minds of Parties must Meet.</p> <p>8. In all contracts, whether of accord and satisfaction or the compromise and settlement of a disputed claim or otherwise, it is essential to the validity of the contract that the minds of the parties have met in agreement with each other.</p> <p>Action — Courts will not Pass upon Abstract Propositions.</p> <p>9. Courts pass upon concrete cases, and not abstract propositions of law. .</p> <p>Stipulations — Courts Pass upon Facts, and cannot be Limited by Stipulations.</p> <p>10. Courts pass upon facts appearing before them, and their jurisdiction cannot be limited by the stipulation of parties, so as to deprive the court of its power to pronounce judgment upon all of the material facts in the case; nor can a stipulation of the parties or counsel enlarge the power or affect the duty of the court.</p> <p>Municipal Corporations — City not Bound by Contracts in Absence of Compliance With Charter.</p> <p>11. Compliance with a provision of a charter providing that the city shall not be bound by any contract unless authorized by ordinances, and made in writing, and signed by certain persons, must be had before liability will attach against the city.</p> <p>Constitutional Law — City cannot Destroy Vested Bight by Bepealing Ordinance.</p> <p>12. A city cannot destroy vested rights created by an ordinance by repealing it.</p> <p>Mandamus — Not Issued Where Adequate Bemedy at Law.</p> <p>13. Mandamus will not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law.</p> <p>Municipal Corporations — City Council may Eepeal Ordinance Allowing Claim.</p> <p>14. There is no reason which would prevent the city council, after the passage of an ordinance which allows a claim and directs its payment, from repealing such ordinance at any time before the payment has been made.</p> <p>Municipal Corporations — Duty of Auditor to Satisfy Himself That Money is Legally Due Before Drawing Warrant.</p> <p>15. Under its charter, it is the duty of the auditor of the City of Portland before paying any demand against the city to satisfy himself that the money is legally due and its payment is authorized by law, and until so satisfied he has no authority to draw a warrant, even though the city council has ordered a warrant drawn.</p> <p>Municipal Corporations — City Charter is a Grant, not Limitation of Power.</p> <p>16. The municipal charter of the City of Portland is a grant, and not a limitation of power.</p> <p>Contracts — Moral Obligation is not a Sufficient Consideration in Support of .an Executory Express Promise.</p> <p>17. A moral obligation is not a sufficient consideration to support an executory express promise unless there has been an antecedent legal liability, which has become suspended or barred by operation of some positive rule of law, which extinguished the remedy, but not the debt, or where the promisee has suffered some detriment in reliance upon the promise, or where the promisor has received an actual pecuniary or material benefit for which he subsequently expressly promised to pay.</p> <p>Municipal Corporations — City of Portland has No Authority to Pay Out Money Except upon Legal Obligations.</p> <p>18. The council of the City of Portland, under its charter provisions, has no power or authority to pay out the publie moneys of the city in payment of any obligations except the legal obligations of the city.</p> <p>Mandamus — Issued Only Where Duty is Legally Defined.</p> <p>19. Mandamus is an extraordinary remedy, and is not a writ of right, and is issued only where the duty sought to be enforced is one legally defined.</p> <p>17. Moral obligation as a consideration for an executory contract, see note in 17 A. L. B. 1299.</p>

<p>Attorney and Client — Misconduct Justifying Disbarment not Limited to Acts Committed in a Professional Character.</p> <p>1. The misconduct under which Section 1091, Or. L., will disbar is not limited to acts committed strictly in a professional character, but extends to all such misconduct as would have prevented an- admission to the bar.</p> <p>Attorney and Client — Misconduct of Attorney must be Clearly Established to Warrant Disbarment,</p> <p>2. A disbarment proceeding is a civil -and not a criminal proceeding, and yet a mere preponderance of the evidence is not sufficient to warrant disbarment or suspension, but the guilt of the attorney must be clearly established.</p> <p>Attorney and Client — Evidence Held to Show Misconduct in Handling Estate.</p> <p>3. In disbarment proceedings under Section 1096, Or. L., evidence held to show that defendant was guilty of misconduct in handling an estate and litigation for a blind, aged and feeble old woman.</p> <p>1. Causes and proceedings for the disbarment of attorneys, and the power of courts to disbar, see notes in 95 Am. Dec. 333; 45 Am. St, Eep. 71; Ami. Cas. 1917B, 232.</p> <p>Attorney and Client — Evidence Held to Show Misconduct in Handling Litigation.</p> <p>4. In a disbarment proceeding under Section 1096, Or. L., evidence field to show misconduct on part of attorney in handling litigation, collecting judgment, and failing to give the client his share.</p> <p>Attorney and Client — Evidence Held Insufficient to Show Misconduct in Handling Bankruptcy Proceeding.</p> <p>5. In disbarment proceeding under Section 1096, Or. L., evidence field insufficient to show that attorney converted to his own use money whieh was given him to institute bankruptcy proceedings.</p> <p>Attorney and Client — Evidence Held Insufficient to Show That Attorney Permitted Taxes to Become Delinquent.</p> <p>6. In a disbarment proceeding under Section 1096, Or. L., evidence held insufficient to show that attorney permitted taxes for which the client had given him money and requested him to pay to become delinquent.</p> <p>Attorney and Client — Evidence Held to Show Misconduct in Obtaining Loan.</p> <p>7. In a disbarment proceeding under Section 1096, Or. L., evidence held to show that attorney was guilty of misconduct in obtaining a loan by false representations that he owned an interest in a certain building, and that a certain corporation was indebted to him in the sum of $25,000.</p> <p>Attorney and Client — Evidence Held Insufficient to Show Fraudulent Writing of Assignment on Stock Certificates.</p> <p>8. In a disbarment proceeding under Section 1096, Or. L., evidence held insufficient to show that attorney fraudulently wrote an assignment on the baek of stoek certificates which were given as collateral security for a loan.</p>

<p>Master and Servant — Meat Market Business Held “Hazardous” Within Compensation Act Precluding Common-law Defenses.</p> <p>1. Where part of defendant’s meat market business was the manufacture of sausage by the use of power-driven machinery operated in plaintiff’s workroom, the business was “hazardous” as defined by Workmen’s Compensation Aet (§§ 6614, 6617, 6619, Or. L.), and defendant, having rejected the provisions of the aet, was precluded by Section 6620 from urging the defenses of contributory negligence and assumption of risk in plaintiff’s action for damages for injuries to his hand by a bone in a ham thrown to him, and liability could not be avoided on the ground that he was not actually engaged in the operation of the machinery when the injury occurred.</p> <p>Master and Servant — Evidence of Negligence in Blocking Passage Held for Jury.</p> <p>2. In an aetion for injuries to au employee’s hand lacerated by a bone in a bam thrown to Mm, evidence of employer’s negligence in permitting a passageway to become blocked with, barrels, so -that plaintiff and Ms assistant were compelled to pitch hams, held for-the jury.</p> <p>1. Occupations or employments within purview of Workmen’s Compensation Acts, see notes in Ann. Cas. 1917D, 4, 33, 38, 39, 42.</p> <p>Master and Servant — Admission of Evidence as to Conditions not Alleged Held not Error.</p> <p>3. In an action for injuries to an employee’s hand by a bone in a ham thrown to him, it was not error to permit Mm to testify that the light in the room was not very good, and that the floor was greasy and slippery, though such conditions were not alleged, there being no claim that either of these conditions influenced his conduct, and the testimony, if it had any value, tending to show that he was not negligent.</p>

<p>Action — Distinction Between Law and Equity Sthl Maintained.</p> <p>1. The distinction between actions at law and suits in equity is still maintained in Oregon.</p> <p>Courts — Circuit Court Held to have Jurisdiction of the Subject Matter, Whether Proceeding was Action for Goods Sold or Suit to Foreclose Lien.</p> <p>2. The Circuit Court had jurisdiction of the subject matter of a proceeding, whether it was an action for the price of tires, tubes and automobile accessories sold and delivered, or a suit to foreclose a lien on the automobile truck for which they were supplied.</p> <p>Appearance — General Appearance Gives Jurisdiction of Person.</p> <p>3. The Circuit Court had jurisdiction of defendant’s person where he appeared generally in the case.</p> <p>Judgment — Demurrer, Though not Well Taken, Sufficient to Prevent Judgment for Want of Answer..</p> <p>4. A demurrer, though not well taken, amounted to an answer preventing a judgment or decree for want of answer.</p> <p>Appeal and Error — Insufficiency of Facts Alleged to Constitute Cause of Suit may be First Urged on Appeal.</p> <p>5. A defendant answering by demurrer not well taken, and appealing after the demurrer was overruled, may urge for the first time in the Supreme Court that the eomplaint does not state facts sufficient to constitute a cause of action.</p> <p>Livery-stable and Garage Keepers — No Personal Decree Against Defendant When There was No Personal Obligation for the Debt.</p> <p>6. Under Section 422, Or. L., no personal decree in equity could be rendered against defendant in a suit to foreclose a lien on an automobile truck for the priee of tires and accessories furnished for use on such truck, where no promissory note or other personal obligation for the debt was shown.</p> <p>Bailment — One Who Would Enjoy Benefit of Statutory Lien must Bring Himself Within Terms of Statute.</p> <p>7. Liens, such as that created by Sections 10272', 10273, Or. L., giving a lien to one expending labor, skill or materials upon any chattel at the owner’s request, are creatures of the statute which extend the eommon-law lien, and one who would enjoy the benefit of the law must bring himself within its terms.</p> <p>Livery-stable and Garage Keepers — Complaint to Enforce Lien Insufficient When It Does not Appear Labor, Skill and Materials Supplied Within County or Stale.</p> <p>8. In a suit to foreclose a lien under Sections 10272 and 10273, Or. L., for labor, skill or materials expended upon an automobile, the complaint is insufficient to constitute a cause of suit where neither the eomplaint nor the notice of lien shows that the labor, skill or materials were expended within the county where the notice was filed, or even within the state.</p> <p>Judgment — Not Rendered as in Action at Law Where Case Brought and Tried as Suit in Equity.</p> <p>9. Where the complaint was drawn, the cause tried, and the issue raised by defendant’s demurrer for want of facts sufficient to constitute a cause of action was heard and determined, and a decree rendered on the theory that the proceeding was a suit in equity to foreclose a lien, judgment will not be entered as in an action at law for goods sold and delivered until defendant is afforded an opportunity to try the controversy as an action at law.</p>

<p>From Clatsop: James A. Eakin, Judge.</p> <p>Department 1.</p>

From Polk: H. H. Belt, Judge. Iu Banc. This suit arises as a result of a special road tax levy by Boad District No. 4, Polk County, Oregon. The plaintiffs, five in number, are land owners within the district.

<p>From 'Washington: George K. Bagley, Judge.</p> <p>Department 1.</p>