Volume 110 — Oregon Reports

From Malheur: Dalton Biggs, Judge. In Banc. This action was filed against J. P. Schall for the purpose of recovering $1,500 with interest thereon from December 5, 1919, at the rate of 10 per cent per annum.

<p>Fraud — Partnership—Evidence Held not to Establish Fraudulent Misrepresentations in Sale of Partnership Interest.</p> <p>1. In action upon note for portion of priee of plaintiff’s interest in partnership property consisting of cattle ranches, cattle, ete., sold to defendants, in which defendants’ answer stated an affirmative cause of action for fraudulent representations in regard to the property as against other parties joined as defendants, and also set up such fraud as defense to the note and as ground for rescission and damages, evidence held insufficient to establish the fraudulent representations.</p> <p>Public Lands — Contract for Conveyance of Homestead Entry Un enforceable.</p> <p>2. Equity will not aid parties in the enforcement of a contract for the conveyance of land embraced in a homestead entry, made prior to the making of final proof therefor.</p> <p>Vendor and Purchaser — Absence of Reliance upon Fraudulent Representations Renders Such Representations Unavailable.</p> <p>3. In a ease depending upon alleged misrepresentations as to the nature and value of land purchased, the purchaser’s case is barred by showing that he was from the beginning cognizant of the matters complained of, or that after full information concerning them he continued to deal with the property or even to exhaust it in the enjoyment thereof.</p> <p>Vendor and Purchaser — Fraudulent Representations must be Clearly Established.</p> <p>4. To justify finding against vendor suing on purchase-money note because of fraudulent representations, such fraudulent representations must be established by clear and convincing proof.</p> <p>Fraud — Dealer’s Talk not Actionable.</p> <p>¡5. Expressions of a seller in commendation of his land and bragging upon it, commonly designated as “dealer’s talk,” do not constitute grounds of action for fraud and deceit; sueh statements ¡being usually regarded as mere expressions of opinions upon which a purchaser cannot safely rely.</p> <p>3. Right to rely on representations, see notes in 18 Am. St. Rep, 555; 37 L. R. A. 593.</p> <p>5. Principle that statement of opinion generally is not fraudulent, see notes in 18 Am. St. Rep. 555; 35 L. R. A. 417.</p> <p>Trial — Remanding to Law Side upon Failure of Testimony to Establish Equitable Defense not Required Where No Further Issue to be Tried.</p> <p>6. In an action on purchase-money notes, the trial court was not required, when it found that defendants’ equitable defense was not sustained by the testimony, to remand the case to the law side of the court under Section 390, Or. L., where there was no further issue to be tried; and, the court having equitable jurisdiction of the whole matter, it was appropriate for it to grant complete relief.</p> <p>Trial — Where All Law Matters not Embraced in Equity Suit. It is Appropriate for Trial Court to Allow Action at Law to Proceed.</p> <p>7. In an action at law, where defendant sets up matters of equitable defense, if all the law matters are not embraced in the equitable issues raised, it is appropriate for the trial court, after such equitable issues have been decided against defendant, to allow the action at law to proceed under Section 390, Or. L.</p> <p>Action — Joinder of Cross-action Against Third Person With Defense of Fraudulent Misrepresentations Held Improper.</p> <p>8. In action on note for portion of price of plaintiff’s interest in partnership property, it was improper for defendant to set up fraudulent representations as a defense to the note, and also a cause of action against plaintiff’s former partner, based on controversy arising .after plaintiff’s sale, between defendant and such former partner, since under Section 390, Or. L., equitable defenses must consist of equities existing against plaintiff.</p> <p>ON PETITION TO RETAX COSTS.</p> <p>Costs — Transcript of Testimony must Necessarily Form Part of Record, to be Taxable as Costs — Only One Transcript is Necessary.</p> <p>9. Before the expense of the transcript of testimony or copy thereof may be taxed and allowed to prevailing party as costs upon appeal within Laws of 1921, page 621, the transcript must necessarily form a part of the record on appeal, and only one transcript is necessary, and hence the expense of additional copies, however convenient they may have been for counsel for several parties, cannot be taxed as costs.</p>

<p>Appeal and Error — Trial Anew on Appeal from Whole Decree.</p> <p>1. Under Section 556, Or. L., the appeal being from the whole of the decree, suit is to be tried anew on the transcript and evidence accompanying it.</p> <p>Divorce — “Desertion” Established by Refusal of Intercourse.</p> <p>2. Desertion is established by refusal of intercourse.</p> <p>Divorce — Desertion for Pull Year Necessary.</p> <p>3. Divorce deeree for desertion is unauthorized under Section 507, subdivision 5, Or. L., a full year from the commencement of the desertion not having elapsed prior to filing of suit or entry of deeree.</p> <p>2. Refusal of marital intercourse as grounds for divorce, see notes in 12 Ann. Cas. 547; L. R. A. 1915B, 770.</p> <p>Divorce — Refusal of Intercourse not “Cruelty” — “Personal Indignities.”</p> <p>4. Refusal of intercourse is not within Section 507, subdivision 6, Or. It., giving as ground of divoree cruel and inhuman treatment or personal indignities rendering life burdensome.</p> <p>Divorce — Partitioning Real Estate must be Based on Issues in Pleadings.</p> <p>5. A divorce decree partitioning and determining title to real estate must be based on and in conformity with issues raised by the pleadings and facts alleged, and supported by the findings.</p> <p>Divorce — Husband and Wife — Deeree Partitioning Real Estate Unauthorized by Pleadings.</p> <p>6. Neither the wife in her complaint for support under Sections 9749-9752, Or. L., nor the husband in his answer or counterclaim for divoree, describing or seeking relief concerning the real estate partitioned by the deeree, but the answer and counterclaim merely alleging defendant’s ownership and maintenance of a home, at a certain number on a certain street, which the wife left, the decree so far as attempting to transfer title to real estate is invalid.</p> <p>Divorce — On Reversal Wife Decreed Lien Till Repaid Sums Paid on Mortgage.</p> <p>7. On reversal of decree of divorce partitioning real estate, the wife, who, relying on stipulation, took possession of the real estate and made payments on mortgage thereon in accordance with understanding with husband, is entitled to repayment, and will be awarded a lien till paid.</p> <p>ON REHEARING.</p> <p>Appeal and Error — One Requesting Decree cannot Appeal Therefrom.</p> <p>8. One on whose request a judgment or deeree is entered, granting him the relief designated in his request, cannot appeal from the judgment or decree granting such relief.</p> <p>Divorce — Husband Could not Appeal from Decree Awarding Him Divorce as Prayed for.</p> <p>9. Defendant, who obtained a divoree on his counterclaim in a suit by his wife for support, could not appeal from that part of the deeree awarding him divoree; no fraud appearing.</p> <p>Appeal and Error — Judgment—Decree Rendered on Oral Stipulations is Consent Decree, and not Appealable.</p> <p>10. Decree rendered on an oral stipulation of the parties, made during the eoursc of the proceedings and entered in the court journal or embodied in the decree, is deemed one of consent, and is equivalent to a decree by confession, and, having consented thereto, the parties cannot appeal therefrom, under Section 549, Or. L.</p> <p>8. Direct attack on divoree decree by party obtaining it or consenting thereto, see notes in 60 L. R. A. 294; 51 L. R. A. (N. S.) 534.</p> <p>Collateral attack on divorce deeree, see notes in Ann. Cas. 1915B, 430; 3 A. L. R. 540.</p> <p>See 3 C. J., p. 671; 19 C. J., p. 188.</p> <p>Divorce — Consent Decree, Awarding Division of Property, Though not Within Scope of Pleadings, Held not Appealable.</p> <p>11. In a suit by the wife for support, in which the husband counterclaim,ed for divorce, a decree as to a division of the property rendered on the oral stipulations of the parties, dictated to court stenographer and made in open court, held a decree by consent, not appealable by the husband, independently of the question whether the pleadings sufficiently raised issues on which to base such a decree, if the matter had been contested.</p> <p>Divorce — Facts Held to Show Stipulation on Which Consent Decree was Based Expressed Final Agreement of Parties.</p> <p>12. In a suit by the wife for support, in whieh the husband counterclaimed for divorce, facts held to show that an oral stipulation of the parties, dictated to- the court stenographer and on which consent decree was based, was made in open court, as declared in the findings and as recited in the deeree, and that it expressed the final completed agreement of the parties.</p>

<p>From Douglas: J. W. Hamilton, Judge.</p> <p>Department 2.</p> <p>This is an action for the possession of lot 9 of section 33, Tp. 38 S., R. 6 W., W. M., in Douglas County, Oregon. The Circuit Court dismissed the action. Defendant appeals.</p>

<p>Licenses — Each Member of Partnership Conducting Employment Agency must Pay License Fee.</p> <p>. .Under Laws of 1915, page 135, Section 4 of which requires payment of a license fee by employment agents, defined in Section 1 as every “person” procuring employment for another, etc., each member .of a partnership applying for a license must pay such fee, in view of the title, “an act to regulate employment agents,” and Sections 2, 5, 6 and 9, all of which relate to individuals and not the business of employment agencies directly; a tax laid on all persons pursuing certain occupations, rather than on a business by name, being construed as personal.</p> <p>See 25 dye. 624.</p>

<p>Appeal and Error — Decree Affirmed Where Appellant’s Abstract and Brief Fail to Comply With Court Buie.</p> <p>Where appellant’s abstract and brief fail to comply with Supreme Court Bule 10, requiring a specification of the errors, and the brief failed to refer to the pages of the record where the testimony relied upon for a reversal appeared, the decree will be affirmed.</p> <p>See 3 O. J., pp. 1412, 1418; 4 O. J., p. 404.</p>

<p>From Multnomah.: George W. Stapleton, Judge.</p> <p>Department 1.</p>

<p>Highways — County Held Authorized to Issue Bonds for the Construction of Roads.</p> <p>1. Where the amount of bonds issued for the construction of roads either singly or in the aggregate with previous debts incurred by the county for road purposes did not exceed two per cent of the assessed valuation of the property of the county, and the issuance and sale of the bonds had been approved by a majority of those voting upon that question at an election, held under Laws of 1913, page 170, the county, under Constitution, Article XI, Section 10, was authorized to issue and sell sueh bonds.</p> <p>Highways — Statute Providing for Election to Authorize Bond Issue and Restricting Use of Money to County Roads Held Repealed in Part.</p> <p>2. Laws of 1913, page 170, providing for elections to authorize bonds for road construction, and by Section 13, providing that all such money shall be used for constructing county roads, is not a legislative interpretation of Constitution; Article XI, Section 10, as limiting the power of the county to issue bonds for road construction to county roads, and is constructively repealed by Laws of 1917, pages 45-^456,. Sections 7, 10, 13, and Laws of 1917, page 903, Section 10,. but such implied repeal does not affect the provision for holding the election.</p> <p>Constitutional Law — Statutes — Uniform Interpretation of Constitutional and Statutory Provisions by Legislature has Great Weight.</p> <p>3. The uniform legislative interpretation of doubtful constitutional provisions, running through many years, and a similar construction of statutes, has great weight.</p> <p>Statutes — Legislature may, by Enactment of Other Laws, Repeal Former Laws by Implication.</p> <p>4. The legislature has power, without expressly repealing the provisions of a former law, to enact other laws upon the same subject which by implication necessarily operate to repeal the former law.</p> <p>Statutes — When Implied Repeal Results from Subsequent Enactment Stated.</p> <p>5. While repeals by implication are not favored, an implied repeal results from some enactment, the terms and necessary operation of which cannot be harmonized with the terms and necessary efleet of an earlier act.</p> <p>Counties — Burden of Proving Insufficient Description of Road in Order for Bond Election Rests on Taxpayers Alleging 'It.</p> <p>6. The burden of proving that a description in an order calling a bond election of a road, upon which part of the proceeds raised from the sale of bonds is to be expended, is insufficient, in that there are numerous roads between the termini mentioned, rests on the taxpayers alleging it as a ground for enjoining the sale of the bonds.</p> <p>Counties — Order Describing Road upon Which Proceeds of Bond Issue were to be Expended Held Sufficient.</p> <p>7. Under Laws of 1913, page 171, Section 4, providing that the order calling an election to authorize the issuance of bonds for road construction shall specify the particular roads and the minimum amount to be expended thereon, an order describing termini between which was a road already established and in publie use, and only one road which could answer to the description, held sufficient as no one was or could be misled by the description.</p> <p>Counties — Order Reciting That Proposed Bond Issue for Road Construction Should Bear Interest not to Exceed Six Per Cent Held Sufficient.</p> <p>8. Under Laws of 1913, page 171, Section 4 (now Section 4628, Or. L.), providing that the order of a Oounty Court calling an election for the purpose of authorizing the issue of bonds for road construction shall state the maximum rate of interest that the bonds shall bear, an order reciting that the proposed bonds should bear interest at a rate not to exceed six per cent per annum was sufficient.</p> <p>4. Repeal of statutes by implication, see notes in 14 Am. Dec. 209; 88 Am. St. Rep. 271.</p> <p>See 12 C. J., p. 714; 15 C. J., pp. 612, 614, 617, 618; 36 Cyc. 1071, 1073, 1142.</p>

<p>Action — Answer to Complaint in Action at Law Held not Equitable Defense, but Unauthorized Equitable Counterclaim.</p> <p>1. In an action against a corporation for breaeh of a contract to employ plaintiff as its general manager, allegations of an affirmative answer alleging sale by plaintiff to defendant of certain mining claims, at an overvaluation in consideration of defendant’s entire capital stock and certain ore bonds, yield to state no equitable or other defense to the complaint, but at most to set up an equitable counterclaim, which is not authorized in actions at law.</p> <p>Action — Equitable Matters Pleaded in Action at Law must be Material to Defense of Cause of Action Alleged in Complaint.</p> <p>2. Section 390, Or. L., does not authorize equitable counterclaims in actions at law, but permits matters cognizable in equity only when material to the defense of the cause of aetion alleged in the complaint; the language of the statute not being materially changed by the amendment of 1917 (Laws 1917, p. 126).</p> <p>Appeal and Error — Supreme Court Limited, in Action at Law, to Determination of Sufficiency of Evidence to Support Findings and of Latter to Support Judgment.</p> <p>3. In an action at law, the Supreme Court is limited to errors brought to its attention by the bill of exceptions, and to determining whether there is any evidence supporting the findings of fact and whether the findings are sufficient to support the judgment (Section 159, Or. L.).</p> <p>Appeal and Error — Defendant cannot Complain of Admission of Immaterial Testimony Rebutting Immaterial Testimony.</p> <p>4. Defendant cannot complain, on appeal, of admission of immaterial testimony in rebuttal of immaterial testimony in support of his affirmative answer.</p> <p>Appeal and Error — Admission of Immaterial Rebuttal Testimony Held not Reversible Error.</p> <p>5. Admission of immaterial testimony to rebut immaterial testimony introduced by defendant, in a ease tried to the court without a jury, held harmless, if error.</p> <p>Corporations — Officer’s Authority to Execute Instrument Under Seal Presumed.</p> <p>6. The authority of a corporation officer to execute an instrument, sueh as a contract of employment, is presumed, where the instrument is under seal, but such presumption is rebuttable.</p> <p>Corporations — Promoter cannot Retain Secret Profits from Sale of Property to Corporation at Fictitious Value.</p> <p>7. The promoter of a corporation cannot retain secret profits from selling property to it at a fictitious value, he being held to the same liability as a trustee to a large extent.</p> <p>Corporations — Corporation Held not Entitled to Recover Secret Profits from Promoter Selling Fictitiously Valued Mining Claims to It for All Its Capital Stock.</p> <p>8. A corporation, to which its promoter transferred mining claims, fictitiously valued, in consideration of all its capital stock and certain bonds, which were liens, not on the property, but on ore thereafter produced, held not entitled to recover secret profits from the promoter, who subsequently sold stock to persons not parties to the suit, it having paid out no money and its capital stock being worth no more than the property owned by it.</p> <p>7. Relation of promoter to corporation and stockholders, see notes in 17 Am. St. Rep. 161; 85 Am. St. Rep. 385; 4 Ann. Cas. 669; 17 Ann. Cas. 269; Ann. Cas. 1915B, 176.</p> <p>See 4 C. J., pp. 644, 704, 999; 14 C. J., pp. 253, 287, 293; 14A C. J., pp. 397, 398.</p>

From Marion: George G. Bingham, Judge. Department 1. This is a suit instituted for the purpose of enjoining the enforcement of an order made by five of the defendants who constitute the State Game Commission of Oregon. The defendants, John H. Carson and George Neuner, Jr., were prosecuting attorneys for Marion and- Douglas Counties, respectively, at the time the order was made.

<p>Pleading — Complaint, Failing to Allege Written Contract of Sale, Aided by Answer.</p> <p>1. A complaint for rescission of a conditional sales contract, failing to allege a written contract, waa aided by the answer making such allegation, in the absence of demurrer.</p> <p>Appeal and Error — Trial of Case in Equity Precluded Objection That Equitable Cause of Action not Stated.</p> <p>2. Where both parties joined issue and tried a suit to rescind a contract of sale in equity, objection that the complaint did not state an equitable cause of action was ineffective on appeal.</p> <p>Sales — Failure to Allege Damage from Misrepresentations not Fatal to Rescission Suit in Equity.</p> <p>3. Failure to allege damages from misrepresentations is not fatal to a suit for rescission, though fatal to an action at law for damages, since in equity plaintiff is entitled to the identical thing contracted for.</p> <p>Sales — Rescission Month After Making Contract, but Immediately After Learning of Misrepresentation, Reasonable Promptitude.</p> <p>4. One buying an automobile on April 20th as a 1921 model, and first discovering some time in May that it was a 1920 model, in immediately returning it rescinded with reasonable promptitude.</p> <p>See 3 C. J., p. 724; 31 Cye. 714; 35 Cyc. 152, 157.</p>

<p>Divorce — Wife's Conduct and Attitude Toward Husband Held to be “Cruel and Inhuman Treatment.”</p> <p>Where a wife’s peculiarities of temperament were such that it would be impossible for anyone to live with her in peace, and her conduct in that respect and her general attitude towards her husband having been such as to humiliate him, injure his health and prospects as a physician, and unjustly degrade him in the community, it constituted cruel and inhuman treatment.</p> <p>Habits or cause of conduct of spouse as cruelty warranting divorce, see notes in Ann. Cas. 1918B, 480, 500.</p> <p>See 19 C. X, p. 49.</p>

<p>Master and Servant — Stone-crushing “Hazardous Occupation” Within Compensation Act.</p> <p>1. One engaged in work on a stone-crusher in a quarry is in a “hazardous occupation,” under Section 6617, Or. L., and Section 6624, as amended by Laws of 1921, page 567, Section 3.</p> <p>Contracts — Generally, Construction of Contract for the Court.</p> <p>2. Generally, the construction of a contract is for the court and not the the jury.</p> <p>Master and Servant — Jury’s Finding Compensation Claimant was a “Workman” Held Conclusive.</p> <p>3. Evidence in a compensation ease held to show that different minds might have reached different conclusions as to the capacity in which claimant, one doing a general blaeksmithing business, was working while repairing a stone-crusher, making it proper to submit the question of capacity to the jury, and therefore the judgment based on jury’s finding that he was a “workman,” defined in Section 6619, Or. L., and not an independent contractor, could not be disturbed.</p> <p>1. “Hazardous occupation” within meaning of Workmen’s Compensation Act, see note in Ann. Cas. 1917D, 4, 33, 38, 30, 42.</p> <p>See 13 C. J., pp. 783, 784; W. C. A., pp. 42, 126.</p>