Volume 20 — Oregon Reports

Umatilla county: J. A. Fee, Judge. Defendant appeals. The negligence must be proved as set out in the pleadings. Having pleaded a particular act or particular acts as negligence, that must be proved. (Carter v. Kansas City, &c., R. R. Co. 65 Iowa, 287, 21 N. W. E. 607; Denton v. Chicago, R. I. & Pac. R. R. Co. 52 Iowa, 161, 164, 35 Am.

Multnomah county: E. D. Shattuck, Judge. Defendant appeals. The object of this proceeding is to try the title to the office of councilman of the city of Albina, in Multnomah county.

Union county: J. A. Fee, Judge. Plaintiff appeals. Unless defendant’s rights wore acquired by adverse possession, as plead, they would amount only to a license. (Noiolin v. Whipple, 22 N. E. Rep. 669, Ind.; Cagle v. Parker, 97 N. C. 271, 2 B. E. Rep. 76; Huston v. Bybee, 17 Or. 140.) If only a license, it was not assignable. (Mumford v. Whitney, 15 Wend. 380, 30 Am.

Jackson county: L. R. Webster, Judge. Defendant appeals. Said, circuit court, at a term thereof held on the 18th day of December, 1889, proceeded of its own motion to make and enter the following order: “In the circuit court for Jackson county, Oregon. “Whereas you, E. J. Kaiser and N. A. Jacobs, as editors and publishers of the Valley Record, a newspaper published at the city of Ashland, Jackson county, Oregon, on Thursday, the 12th of December, 1889, in an issue of said…

Multnomah county: E. D. Shattuck, Judge. Plaintiff appeals. Hill’s Code, § 3239, provides that “A corporation organized for the construction of any railway” may appropriate land for right of way, and this applies to street railways operated for carrying passengers only. (Chicago v. Moans,. 24 111. 52; 3 Mo.

Douglas county: R. S. Bean, Judge. Defendant appeals. This is a suit for divorce. The charges are, briefly, cruelty and personal indignities rendering life burdensome. These are denied by the answer; and by way of a further defense, the answer pleads the rendition of a decree by the circuit court of Douglas county, Oregon, between the same parties in which the same facts were relied upon as in this suit. The reply denied the new matter.

<p>PIjBading — Complaint Insufficient on Dejiurrer. — In an. action by an administrator With the will annexed against bis predecessor in the trust for a devastavit in failing to redeem certain stook in a private corporation belonging to said estate and which had been sold under a decree of the U. S. circuit court, and was by the terms o£ sale subject to redemption within six months, the complaint must allege that there were assets in the executor’s hands available and applicable to the purpose of redemption, and that the proper county court ordered the redemption to he made.</p> <p>County Court — Exclusive Jurisdiction — Devastavit.—.Section 895, Hill’s Code, confers upon the county court exclusive jurisdiction, in the first to direct and control the conduct and to settle accounts of executors, administrators and guardians, and this includes the power to inquire into a case of devastavit and to charge the delinquent with the amount thereof.</p> <p>Devastavit Defined. — Devastavit is a violation of duty by the executor or administrator such as renders him personally responsible for mischievous consequences; a wasting of the assets; a mismanagement of the estate and effects of the deceased, in squandering and misapplying the assets, contrary to the duty imposed on the executor or administrator.</p>

Douglas county: R. 8. Bean, Judge. Defendants appeal. The plaintiff is a judgment creditor of the defendant M. W. Davis, and brings this suit to set aside a voluntary deed made by M. W. Davis to Emily Davis. At the time the deed in question was made, Emily Davis was M. W.’s wife, but a separation occurred soon thereafter and a divorce was obtained by the wife.

Multnomah county: L. B. Stearns, Judge. Defendants appeal. This was a suit for injunction, and to quiet title to certain land in subdivision block 26, of large block C, of Carter’s addition to the city of Portland. The only defendants served were Penumbra Kelly, the sheriff, Y. B. DeLashmutt, H. B. Oatman and Sidney Dell, judgment creditors. A temporary injunction was had, which on final hearing September 27,1889, was made perpetual The defendants above-named appeal.

Multnomah, county: L. B. Stearns, Judge. Defendants appeal. This is a suit brought under section 504, Hill's Code, by plaintiff and respondent to quiet her title to lot No. 3, block 116, in the city of Portland. The complaint avers that the plaintiff is the owner in fee and in the actual possession of this lot; that she derives her title thereto by good and sufficient mesne conveyances from the United States, and also by virtue of the statute of limitations.

Multnomah county: L. B. Stearns, Judge. Plaintiff appeals. This is a suit in equity for an accounting to enforce the rights of the plaintiff under a contract with the defendant, of which the following is a copy: “This agreement, made and entered into this 6th day of August, 1889, by and between John Klosterman and Alexander E. McCulsky, both of the city of Portland, county of Multnomah and state of Oregon, witnesseth: That whereas said John Klosterman has been and now is…

<p>Yamhill county: R. P. Boise, Judge.</p> <p>Plaintiffs appeal.</p> <p>This proceeding was instituted in the name of the state of Oregon ex rel. G. M. Patty against the defendant to try the right to the office of director in school districts Nos. 33 and 46, said districts being on the line between Polk and Yamhill counties. The complaint alleges in substance that G. M. Patty, G. M. Allen and A. Sheldon are the legally elected and qualified directors of school districts Nos. 33 and 46 in Yamhill and Polk counties in said state, to which said office of director said G. M. Patty was duly elected and qualified on the Sd day of March, A. D. 1890; that the defendant J. McKee unlawfully usurped and intruded himself into the said office of director of said district, to which the said G. M. Patty was elected and qualified and to which he was entitled on the 3d day of March, 1890, and has ever since said date continued to usurp and hold said office and exercise the functions thereof; that the said J. McKee claims to have been elected to said office at a pretended meeting of said district alleged to have been held on the 3d day of March, 1890, but that the proceedings of said pretended meeting were void.</p> <p>The complaint sets out fully the proceedings of the school meeting at which the relator was elected, and of the pretended meeting at which the defendant claimed to have been elected, but such allegations need not be repeated here.</p> <p>The answer denies all the material allegations of the complaint, and further alleges that on the third day of March, 1890, the defendant was duly elected director of said district and now is duly elected, qualified and acting director of said district. The further and separate answer was denied by the reply.</p> <p>The cause came on for hearing before the court without the intervention of a jury, and after hearing the facts, the court found the following conclusions of fact:</p> <p>(1) That on the 3d day of March, 1890, a school meeting was called in districts Nos. 33 and 46, Yamhill and Polk counties, the same being a district situated partly in each county; (2) that G. M. Allen was a director of said district, who had held said office for two years; (3) that J. P. Beeler was a director of said district, who had held said office for less than one year, and had been appointed to fill a vacancy in said office caused by the removal of S. T. Munkers from said district, who was, at the time of his removal, a director of said district, whose term of office would have been three years on said third day of March, 1890; (4) that at said meeting a controversy arose as to whether said Allen or said Beeler was the legal chairman and entitled to preside at said meeting; (5) that said Allen called said meeting to order and asked Fred S. Smith, the then clerk of said district, to read the minutes of the last meeting; but said Smith refused to recognize said Allen as the proper chairman of said meeting and refused to act as clerk thereof; that thereupon said Allen appointed J. F. Wisecarver to act as clerk of said meeting; that said Wisecarver assumed the duties of clerk and the meeting then proceeded to elect a director, and G. M. Patty, the relator, was declared elected director; that said election was by ballot and the votes were collected by tellers appointed by said Allen, and that said Patty received 20 votes — all the votes cast; (6) while these proceedings were in progress said Beeler, claiming that he was the director entitled to preside at said meeting, called the same to order, and said Smith, the clerk of said district, recognized him as the legal chairman of said meeting. Also a part of the voters present at said meeting so recognized said Beeler as chairman and proceeded to elect a director of said district, and J. McKee, the defendant herein, was declared duly elected as such director, he receiving 17 votes —all the votes cast; (7) the two factions were in the same schoolhouse, and acted separately, each recognizing its chairman. And from the facts so found the court found the following conclusions of law:</p> <p>(1) That G. M. Allen was the oldest director and entitled to act as chairman of said meeting; (2) that said Allen had no authority to appoint J. F. Wisecarver clerk of said district or said meeting; (3) that all the proceedings at said meeting by both factions were illegal and void.</p> <p>The principal question involved is the validity of the school meeting referred to in the pleadings and findings of fact of the trial court. Section 2601, Hill’s Code, provides “The oldest in office of the directors present shall act as chairman of all meetings; and in case neither of the directors is present, the qualified voters present shall elect a chairman.”</p> <p>The clerk of the district refused to act as secretary of the meeting. The election of an officer pro tern, in the absence or refusal of the proper officer to act, is a power inherent in every parliamentary or deliberative body. (Budd, v. Walla Walla Print. & Pub. Co. 2 Wash. T. 347.)</p> <p>The secretary of that meeting was either a de facto ór a de jure officer. If the former only, his official acts are valid and cannot be collaterally attacked. (Norton v. Shelby Co. 118 U. S. 425-454; State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409; Taylor v. Shrine, 3 Brev. 516; Carleton v. People, 10 Mich. 250; Clark v. Commonwealth, 29 Pa. 129; Brown v. O’Connell, 36 Conn. 432, 4 Am. Rep. 89; Blackburn v. State, 3 Head, 690; Fowler v. Beebe, 9 Mass. 231, 6 Am. Dec. 62; State ex rel. Dugan v. Farrier, 47 N. J. L. 383.)</p> <p>There is such an office as secretary of a school meeting. (Hill’s Code, §§ 2623, 2612.)</p> <p>The court having found that the meeting at which the defendant claims to have been elected was an illegal meeting, the state is entitled to judgment of ouster, whether the relator was lawfully elected or not. (People ex rel. Koerner v. Ridgley, 21 111. 65; Clark v. The People ex rel. Crane, 15 111. 213; People ex rel. Keeler v. Robei'tson, 27 Mich. 116; State ex rel. Law v. Saxon, 25 Ha. 342.)</p> <p>The findings of fact are conclusive upon both parties. {Hicklin v, McGlear, 18 Or. 126.)</p> <p>By virtue of Beeler’s election to fill a vacanej’-, he succeeded to all of the rights of the oldest director in office whose successor he was. The body of voters presided over by him alone constituted the legal meeting. It had the clerk, the records and the sanction of two directors. The other faction had no authority to proceed. (Hill’s Code, § 2601.)</p> <p>Section 2601, Hill’s Code, which provides that “the oldest in office of the directors present shall act as chairman,” relates rather to the term than to the person of the incumbent. The right belongs to the term and not to the incumbent.</p> <p>Upon the findings defendant is entitled to have the proceedings against him dismissed and to recover costs.</p>

Polk county: E. P. Boise, Judge. Plaintiff appeals. This case comes here on a demurrer to the plaintiff’s complaint which was sustained in the court below.

Yamhill county: R. P. Boise, Judge. Plaintiff appeals. This is a suit in equity for a dissolution of a partnership and for an accounting. The complaint alleges that the contract of partnership was entered into between the plaintiff James Flower and the defendant F. Barnekoff on March 10, 1889, and that it had for its object the purchase on partnership account of an option upon certain lands of ope PI.

<p>Clackamas county: Frank J. Taylor, Judge.</p> <p>Plaintiffs appeal.</p>

Douglas county: R. >9. Bean, Judge. Defendant appeals. On the 20th day of October, 1880, the defendant was indicted for the crime of murder. The journal entry recites that he was arraigned on the 18th of March, 1890, and pleaded not guilty; but before pleading to the indictment he moved to set the same aside because the names of the witnesses examined before the grand jury were not endorsed on the indictment.

Harney county. M. D. Clifford, Judge. Defendant appeals. Held: etc.; that the defendant as such county clerk now keeps and maintains, etc., all said records, files, etc., at the town of Harney, and conducts the office and official business there, all of which is against the will of the legal voters of said county, and that the defendant unlawfully refuses to recognize the said town of Burns as…

Polk county: R. P. Boise, Judge. Plaintiff appeals. The object of this action is to recover dower.

<p>Linn county: R. P. Boise, Judge.</p> <p>Plaintiff appeals.</p>

Linn county: R. P. Boise, Judge. Defendant appeals. This is an action to recover the value of wood alleged to have been cut and delivered to defendant by plaintiff, and for damages for breach of a contract.

Multnomah county: E. D. Shattuck, Judge. Defendant appeals. This is an action to recover $1,500 and interest claimed to be due plaintiff from defendant as delinquent assessments on twenty shares of plaintiff’s capital stock of the par value of one hundred dollars each, subscribed for by defendant A trial was had in the court below which resulted adversely to defendant, and hence this appeal.

Multnomah county: L. B. Steaens, Judge. Defendants appeal. The plaintiff being the owner of a tract of land in size 1141 feet north and south and 408 feet east and west, within tbe corporate limits of the city of Albina, on April 3, 1889, caused an addition to the city to be laid off, of which, under the name of Albina addition, a map or plan was made, signed, acknowledged, and recorded by him, representing said addition with its streets, lots and blocks, the size and width…

Multnomah county: E. D. Shattuck, Judge. Plaintiff appeals. The notice of appeal in this case was served on the 1st day of March, 1890. The undertaking on appeal was filed the same day. The transcript was filed in this court on the 4th day of March, 1890. The case was continued at the March term. On the 6th day of March, Í890, the respondent’s attorney gave notice that he excepted to the sufficiency of the sureties on appeal.

Multnomah county: L. B. Stearns, Judge. Defendant appeals. A fictitious signature must purport to be the signature of some other person than the one writing it, to constitute forgery. (State v. Young, 46 N. H. 267, 88 Am. Dec. 212; Com. v. Foster, 114 Mass. 319, 19 Am. Rep. 353; Com. v. Costello, 120 Mass. 370.) What is the test of forgery in cases where documents have been falsely signed? It is s Did the signature deceive?

Marion county: R. P. Boise, Judge. Plaintiff appeals. The object of this suit is to determine the right to certain money in the hands of the plaintiff, and which is claimed by the defendants Ames and Detrick, as attaching creditors of A. Grant, and by David McCully, receiver of A. Grant’s estate.

Benton county: R. S. Bean, Judge. Plaintiff appeals. This was an action to recover sixty dollars.

Clatsop county: Frank J. Taylor, Judge. Defendant appeals. The substance of the complaint is as follows: The complaint alleged that on February 9,1889, defendant employed plaintiff to work at its cannery in Alaska for eight months, and agreed to pay him $800 therefor, and his passage money between Astoria and Alaska going and returning, and to board and lodge plaintiff during said period; that pursuant to said agreement, plaintiff went to Alaska and worked for defendant…

<p>Multnomah county: L. B. Stearns, Judge.</p> <p>Defendant appeals.</p>

Douglas county: R. S. Bean, Judge. Plaintiff appeals. This suit was commenced on the 11th day of April, 1889. The complaint in substance alleges? That on the 9th day of November, 1883, the defendant, @.

Benton county: R. S. Bean, Judge. Plaintiff appeals. This is an action brought by the plaintiff against the defendants to recover the sum of $350 with interest on a non-negotiable promissory note, made by the defendants to J. C. Y oung, on the 28th day of August, 1888, and sold and assigned by him to the plaintiff, etc. The defendants admit the making of said note, but deny the assignment, and then allege affirmatively by way of set-off that the said Young? on the 28th day…

Multnomah county: L. B. Stearns, Judge. Defendant appeals. The defendant was indicted by the grand jury of Multnomah county and convicted, from which judgment this appeal is taken. There is no bill of exceptions, and the only error relied upon for a reversal is the insufficiency of the indictment to sustain the judgment.

Multnomah, county: L. B. Stearns, Judge. Defendant appeals. The defendant was indicted for the crime of robbery and convicted of the crime of larceny from the person. The charging part of the indictment is as follows: “The said Abe Lawrence, on the 28th day of October, 1890, in the county of Multnomah and state of Oregon, did feloniously in and upon one Geo. Lebo make an assault, and him, the said Geo.

<p>Delusions. — Delusions are conceptions that originate spontaneously in the mind without evidence of any kind to support them, and can be accounted for on no reasonable hypothesis. They have no foundation in reality, and spring from a diseased or morbid condition of the mind.</p> <p>Idem — Insanity—Error op Judgment. — Where a person persistently believes supposed facts which have no real existence except in his perverted imagination and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion, and delusion in that sense is insanity. But where the belief or aversion to the contestant was formed on an apparent cause, leading on his part to a view unjust and erroneous, this only shows an unfortunate error of judgment or a want of reasoning power, but not an absolute want of intellect on the subject. It shows a bad judgment upon au insufficient state of facts, but not that his conclusion was formed without any foundation in fact, apparent or otherwise. It is not enough that a delusion may exist, but its connection with the testator’s will must be made manifest and shown to have influenced its provisions before the will can be set aside and declared void.</p> <p>Delusion Not Connected With Will. — Where it was claimed that the testator was the subject of an insane delusion, but admitted to be of sound mind on all other subjects not connected with such delusion, but which delusion the evidence disclosed — assuming such delusion to have ever existed — was not present influencing him when he executed the will; held, that the will was valid.</p> <p>Testamentary Capacity — Degree op Immaterial. — While it seems harsh and cruel that a parent should disinherit one of his children and devise his property to others, or cut them all off and devise it to strangers from some unworthy motive, yet so long as that motive, whether from pride, or aversion, or spite, or prejudice, is not resolvable into mental perversion, no court can interfere.</p> <p>Reasons for Will not Reviewed. — It is enough that the law recognized the right of the parent to make such testamentary disposition of his property as he chooses to select as the object of his bounty, and in the exercise of this right he may have reasons satisfactory to himself why some of his children should enjoy his estate while others are excluded. Some may be more deserving than others, more needful of help for various reasons; some may have contributed largely to its acquisition: these and other reasons may exert an influence in favor of some and in exclusion of others.</p>

Clatsop county: Frank J. Taylor, Judge. Plaintiff appeals. This is a suit to foreclose a mortgage on certain real estate in Clatsop county, given by defendant to plaintiff.

Polk county: It. P. Boise, Judge. Plaintiff appeals. This is a suit in equity to cancel a contract for the sale of land by plaintiff to defendant. For the purpose of this case, it is sufficient to state that the complaint alleges that on the 13th day of February, 1880, the plaintiff and defendant entered into a contract for the sale of certain real estate therein described and containing 360 acres.

Clatsop county: Frank J. Taylor, Judge. One defendant appeals. This is a suit in equity to foreclose a mortgage of $4,000, executed by Truman P. Powers, in his life-time, upon a tract of land containing eighty acres adjoining Upper Astoria and six blocks in Upper Astoria. The complaint is in the usual form.

Marion count}': R. P. Boise, Judge. Defendant appeals. A railroad company is not, as toward its employes engaged in operating its trains, an insurer of the safety or soundness or proper condition of repair of its track or switches, but is only liable to them for such defects therein as it knew, or by the exercise of such reasonable care might have known, to exist, and might by such care have prevented or remedied.

Benton county: R. S. Bean, Judge. Defendants appeal. This was an action brought by the plaintiff against the defendants on a promissory note dated October 20, 1884, made by them and payable to the order of Harrison Weider, twelve months after date, with interest thereon at ten per cent until paid. The complaint alleges the execution of the note, the death of Harrison Weider, intestate, on the 5th day of September, 1885, the appointment of Geo.

Jackson county: L. R. Webster, Judge. Plaintiff appeals. In October, 1889, the common council of the town of Med-ford duly passed an ordinance for the prevention of fires and the protection of persons and property endangered thereby, which, among other things, established fire limits and provided that no wooden buildings should be built within said limits.

<p>Negotiable Note — Seal, Effect of. — An instrument in the form of a negotiable promissory note, but with a scroll in which the word seal was written thus [Seal] after the signature of the maker, is a sealed instrument, and not a negotiable promissory note, though there is no reference to a seal in the body of the instrument.</p>

Marion county: R. P. Boise, Judge. Defendants appeal. The object of this suit is to have a certain deed, made and executed by the plaintiff to Charles Swegle in his lifetime, declared to be a mortgage, and for an account of the rents and profits of the land described in said deed, and for the redemption of said real property, or such other relief as may be proper.

<p>Jackson county: L. R. Webster," Judge.</p> <p>Plaintiffs appeal.</p> <p>This is an action to recover the sum of $971.18 on an account stated. The defendants had judgment in the court below, and the plaintiffs have appealed. The testimony tended to show that plaintiffs were wholesale merchants doing business in Portland, Oregon, and the defendants retail merchants doing business as partners in Jackson county, Oregon; that dealings between the parties covered a period of seven or eight years; that during that time the plaintiffs furnished the defendants with several statements of account: the first was dated June 1, 1883, and showed a balance of $2,148.69 in favor of the plaintiffs; the second was dated December 26, 1885, and showed a balance in favor of the plaintiffs of $3,483.66; the third was dated December 20, 1886, and showed a balance in favor of the plaintiffs of $3,693.16; the fourth, dated December 20,1887, and showed a balance of $1,606.01 in favor of the plaintiffs; the fifth, dated February 10, 1888, and showed a balance of $971.78 in plaintiffs' favor. Statement No. 2 contained an item of interest of $420.80; No. 3, an item of interest of $251.74; No. 4, an item of interest of $240.60. At the end of each statement were the letters E. & O. E. The only objections which the defendants ever made to any of these statements prior to August 27,1888, are in the following letters addressed by the defendants to plaintiffs:</p> <p>“Applegate, February 7, 3888.</p> <p>“Messrs. Fleischner, Mayer & Go., Portland, Oregon — Gents : Would you kindly send us statement in full of all our dealings, in order to make a settlement? Also please explain why your statements do not show a credit to us of $3.75 error on merchandise, invoice June 23,1883. Also why our account is charged with cash, November 23, 1883, $58.74. Our books show no such item.</p> <p>“Kubli & Bolt.”</p> <p>The corrections suggested in this letter were promptly made by the plaintiffs. On the 14th day of February, 1888, the defendants sent the following letter to plaintiffs with a remittance:</p> <p>“Applegate, February 14,1888.</p> <p>“Messrs. Fleischner, Mayer & Co., Portland, Oregon — Gents : Enclosed please find check on First National Bank for fifty-eight and 65-100 dollars, which you will please credit Kubli & Bolt.</p> <p>“Kubli & Bolt.”</p> <p>On the 27th day of August, 1888, the defendants sent the following communication to the plaintiffs after being again pressed to pay the balance of the account:</p> <p>“Applegate, August 27,1888.</p> <p>“Messrs. Fleischner, Mayer & Co., Portland, Oregon — Gents : Referring to your letter enclosing statements of account, we would say that according to our books and your statements, we have paid our account in full. The balance shown by your statements is interest, and interest upon interest. As your salesman sold us goods upon our own time, and as we never agreed or promised to pay any interest whatsoever, we are surprised to receive your statement with request to remit.</p> <p>“Kubli & Bolt.”</p> <p>The defendant Bolt testified upon the trial in substance as follows: I am one of the defendants in this action, and we commenced doing business with Fleischner, Mayer & Co. in 1881; that about that time a stranger claiming to be .Mark A. Mayer, a son of one of the members of the firm of Fleischner, Mayer & Co., and claiming to be a partner of the concern, wished to sell me goods; was then dealing in Ban Francisco; was in debt considerably then, and couldn’t very well deal with Fleischner, Mayer & Co.; Mayer told me that if we dealt with them we could have all the time we wanted to pay, without interest, and without any dunning letters. Finally he offered me goods very low, reasonable, and I bought a bill of goods of him. We continued business right along. They sent us accounts and statements right along, a great many of them. I never remember of having made any direct response to them. Whenever we could spare money we sent it to them. That he understood the letters E. & 0. E. to mean that it gave either party the right to correct any errors. (Witness here identified certain statements, and plaintiffs admitted they were the ones sent.) When I received the statement I did not think it necessary to reply particularly. When I received the statement of February 10,1888, I was on my ranch on Humbug, sick in bed, about three-quarters of a mile from my former place of business, not being in business at that time, having gone out of the mercantile business about two months before. This witness also produced and submitted in evidence the following letter from the plaintiffs:</p> <p>Portland, Oregon, August 31,1888.</p> <p>aMessrs. Kubli & Bolt, Applegate, Oregon — Dear Sirs: We are in receipt of yours of the 27th. Contents noted. We are very much surprised, indeed, that you should raise any question as to the balance due on your account, and especially that you should at this late day make any objection to the interest. It is our invariable rule to charge interest on. all overdue accounts, and in doing so we only get back a portion of the large amount of interest that we have to pay the banks in order that we may be enabled to extend to you and other customers the accommodation they require. In your case we have charged interest after six months’ time on all your bills, which is certainly a long credit. When you take into consideration the fact that the interest charged covers a period of seven years’ business, you must admit that the amount is not unreasonable, and it certainly only partially reimburses us for what we have paid out in interest in order that we might accommodate you. We have sent you statements from time to time with interest charged thereon, and have your acknowledgment that you have received the same, and at no time in all these years have you ever made the slightest objection to the interest charged. We are certainly entitled to the balance due us as per statement rendered, and must insist upon your remitting in settlement of -same; otherwise we shall be compelled to send the account to an attorney for collection.</p> <p>“ Hoping to hear from you promptly, we remain,</p> <p>“ Fleischner, Mayer & Co.”</p> <p>The witness after introducing another letter from plaintiffs, continued: “Since then (date of last letter) I have never received any other statement or letter. I think my partner, Mr. Kubli, did just before this suit was commenced. I have met a member of the firm. It was when Mr. Mark A. Mayer sold us the first bill of goods; after that it was traveling men.' No member of the firm informed me personally that they would charge interest, or change first agreement in relation to selling us goods.” On his cross-examination the witness’ attention was called to each statement, and he admitted they were received by the defendants, and that no objections were made thereto. The following letter, written by the defendants to plaintiffs, was identified by this witness, and offered in evidence by plaintiffs:</p> <p>“Applegate, Oregon, March 30,1886.</p> <p>“Messrs. Fleischner, Mayer & Co., Portland, Oregon— Gentlemen: Your communication of the 25th inst. asking for a remittance, received, and will say that we will dispose of some cattle by April 20th, and then we will remit with» out fail.</p> <p>“Thanking you for your long patience, we are,</p> <p>“Kubli & Bolt.”</p> <p>The court, among others, gave the jury the following instructions: “ 4. What is such reasonable time, is, in this case, a question for the jury. It is for you to say, gentlemen. In determining that question, you must take into consideration all of the circumstances surrounding the transaction. Among other things, the distance between Portland, the place where the plaintiffs reside, and Applegate postoffice, or Applegate, the place where the defendants reside, or where the firm (I don’t know particularly where the defendants reside), but where the firm, Kubli & Bolt, did business at that time. You will also take into consideration the mail connections between these two places, namely, Portland and Applegate, the facilities they had of communicating by mail to each other. You will also take into consideration the previous transactions, business relations and the course of dealing between the parties, the circumstances under which their account was received by the defendants, and all of the circumstances connected with and surrounding the whole transaction, and from all these, you are to say, gentlemen of the jury, whether any objection was made to the account by Kubli & Bolt within a reasonable time after it had been received by them.</p> <p>“10. Now, a stated account must be an account that exhibits the items which constitute such an account. For one person to make a stated account against another, he must show the items of the account; items which make up the account.</p> <p>“11. If, however, gentlemen of the jury, you are satisfied from the evidence in this case that the account sent by the plaintiffs in this case to the defendants, and which, it is claimed here, ripened into an account stated by the failure of the defendants to object — if you are satisfied the account did not contain the items of the account, the items which make up the balance — still, if you are satisfied from the whole evidence in the case that that account made contains the items of account, the items which made up the balance— still, if you are satisfied from the whole evidence in the case that that account made such reference either by direct terms or by reason of the course of business between the parties— made reference to other statements of account then in possession of the defendants, which statements of account did show all of thé items — that will be sufficient so far as the character of the account is concerned; so far, in other words, as showing the items of the account. An account which simply shows a balance, without setting out the items from which the balance arose, is not a statement of account. As I have said to you, that does not constitute a statement of account, but a statement of account must show the items of account.”</p> <p>These instructions were severally excepted to by the plaintiffs. The plaintiffs asked the court to give the following instructions:</p> <p>“1. And if the debtor fails for several posts, when the dealings are between parties living in the same state, to object to said statement, he is presumed to have assented thereto.</p> <p>“ 2. What is a reasonable time in such cases where the facts are clear, is always a question exclusively for the court.</p> <p>“3. It is alleged by plaintiffs that on the 10th day of February, 1888, they rendered and presented their account to the defendants showing the amount due them thereon, which was assented to by defendants as being correct, which allegation is denied by the answer of the defendants, and this is the only issue of fact to be tried and determined by the jury.</p> <p>“4. If you find that plaintiffs rendered and delivered, either in person or by mail, a statement of their account to defendants, on or about the 10th day of February, 1888, and that defendants received the same and made no objections thereto until August 29, 1888, the account became a stated account, and you will find a verdict for the plaintiffs and against the defendants in the amount asked for in the complaint, less the sum of $58.64, which plaintiffs admit as having received on said account sued on.</p> <p>“ 5. In this case it is admitted that on February 10,1888, the plaintiffs sent their statement to defendants, showing the balance claimed by them from defendants; and that defendants received it in due course of mail and wdthin a very few days after it was written; that August 29, 1888, was the first time they objected thereto; that there is and was in the year 1888 daily mail connection between Jacksonville and Portland; and that there was in 1888 mail connection twice a week between Jacksonville and Apple-gate, distant therefrom about thirteen miles. The court therefore charges you, under the circumstances in this case, that the account rendered became a stated account; and under the pleadings in this case you must find for the plaintiffs and against the defendants in the amount claimed in the complaint, less the sum of $58.64, admitted to have been paid on said account.”</p> <p>The court refused to give any of these instructions, to which several rulings of the court the plaintiffs duly excepted.</p> <p>The court erred in allowing not only the items going to make up the account sued on, but also items making up statements furnished from year to year before by appellants to respondents to be inquired info and the account virtually re-opened. “When the action is strictly on an account stated, to maintain such action the plaintiff must prove an account stated, as that and nothing else will support his allegations.” (Truman v. Owens, 17 Or. 523; Holmes v„ Page, 19 Or. 232; Ameráis v. Naglee, 74 Cal. 60.)</p> <p>When the defendant elects to stand on a denial of the stating of the account, there is but the one issue to be tried, and he will not be permitted under a denial of that nature to re-open the account. If he wishes to claim any mistake, omission, accident, or fraud, the pleadings should set forth the items of the mistake or fraud, and distinctly allege that such items were omitted or fraudulent. (1 Story Eq. Jur. (11th ed.) § 527; Terry v. Siehles, 13 Cal. 427; Young v. Hill, 67 N. T. 162, 23 Am. Rep. 99; Kronenberger v. Bin% 56 Mo. 121.)</p> <p>The letters E. & O. E. on a statement of account do not make it any the less a stated account. (Branger v. Chevalier; 9 Cal. 353.) “An account stated is an account which has been rendered by the creditor and assented to by the debtor as correct, either expressly or by implication of law from the failure to object within a reasonable time. * * * Merely rendering same does not make it an account stated but an account rendered, and delivered to the debtor, exhibiting the demand of the creditor, unless objected to within a reasonable time, becomes an account stated.” * * * Signature to the account or express admission is not necessary. (Lockwood v. Thorne, 11 N. X. 170, 62 Am. Dec. 81; Wiggins v. BurJcham, 10 Wall. 129; Toleott v. Chew, 27 Fed. Rep. 273; Powell v. Pao. B. B. 65 Mo. 658.)</p> <p>Party contesting account so rendered is the one to prove he made objections within a reasonable time. (Buffner v. Hewitt, 7 W. Va. 585; Coopwood v. Bolton, 26 Miss. 212.)</p> <p>The court erred in not giving instruction No. 4, asked by appellants: “ What is a reasonable time in such cases where the facts are clear, is always a question exclusively for the court.” (Oil Co. v. Van Etten, 107 U. S. 325.)</p> <p>The court erred in refusing to give instruction No. 1: “And if the debtor fail for several posts, when the dealings are between parties living in the state, to object to such statement, he is presumed to have assented thereto.” (Phillips v. Belden, 2 Edw. 1; Breas v. Truitt, 2 Col. 489.)</p> <p>■ The court erred in giving instruction No. 11. A balance rendered by the creditor and acquiesced in by the debtor, where it is a balance resulting from former transactions, may become an account stated. It is not the items, but the defendants’ consent to the balance found on which the suit is brought. The statement may commence with a previous balance. (Tassey v. Church, 4 W. & S. 141, 39 Am. Dec. 65; Wiley v. Brigham, 16 Huu, 106; Dows v. Dwrfree, 10 Barb. 213.)</p> <p>Every definition of an account involves the idea of a statement of the items. (1 Bonv. Law Die. “Account”; 1 Rap. Law Die. “Account”; Williams v. Glenny, 16 N. Y. 390.) We maintain that the very statement presented as the basis of the settlement must show every item going to make up the total amount or balance claimed to be due.</p> <p>In the absence of special contract to pay interest, the items of interest in the statements were illegal. Our statute allows interest on money becoming due “upon settlement of matured accounts from the day the balance is ascertained.” (Hill’s Code, § 3587.)</p> <p>Only matured accounts are included, and it is the balance ascertained upon their settlement that bears interest. (Catlin v. Knott, 2 Or. 321.) Such has uniformly been the construction of similar provisions. (Samis Ciarle, 13 111. 544; Illinois Cent. By. Co. v. Cobb, 72 111, 148; Close v. Fields, 2 Tex. 232; Dunne v. Hastíele, 50 Cal. 244.)</p> <p>That this was a continuous and open account from its commencement on September 12, 1881, down to the rendition of the plaintiffs5 last statement on July 21, 1888, is conclusively shown both by the statements themselves and the plaintiffs’ letters in regard thereto, especially the last one of August 31, 2888. (Young v. Hill, 67 N. Y. 162, 23 Am. Rep. 99; Elder v. Uchtmann, 10 111. App. 488; Kean v. Branden, 12 La. Ann. 20.)</p> <p>The omission of the party receiving a statement of account to notify his objections to the sender within a given "time, ordinarily sufficient for the purpose, affords ground to infer his assent to the correctness of items shown therein, but not conclusively; therefore the receiver is at liberty to introduce evidence of any fact or circumstance reasonably tending to rebut such inference. (Loekwood v. Thorne, 11 N. Y. 170, 62 Am. Dec. 81; S. C. 18 N. Y. 285; Stenton v. Jerome, 54 N. Y. 480; Volhening v. De Graaf, 81 N. Y. 268; Killam v. Preston, 4 W. & S. 16; Spangler v. Springer, 22 Pa. St. 454; Ware v. Manning, 85 Ala. 238, 5 So. Rep. 682; Bertrand v. Taylor, 32 Ark. 470; Wood v. Hichoh, 2 Wend. 501; White v. Campbell, 25 Mich. 463; Cape Girardeau, etc., By. Co. v. Kimmel, 58 Mo. 83; Bice v. Schloss, Ala., May 6, 1890, 7 So. Rep. 802; Wiggins v. Burk-ham, 10 Wall. 129; Guernsey v. Rexford, 63 N. Y. 631.)</p> <p>The authorities are numerous and decisive that such statements as were sent to defendants in this case, with balances carried over into succeeding statements, as here, do not ripen into stated accounts through silence of the parties receiving the same. {Pickett v. Merchant’s Nat. Bank, 32 Ark. 346; Raymond v. Williams, 40 la. 117; Bussey v. Gant, 10 Humph. 238.)</p>

Douglas county: R. S. Bean, Judge. Defendants appeal. This is an appeal from an order confirming a sheriff’s sale made upon a decree of foreclosure; also from an order allowing the execution upon which such sale was made to be amended. On the 2d day of July, 1888, a final decree of foreclosure was entered in this court in said cause for the sum of §13,045 and interest, and §250 attorney’s fees, and for costs and disbursements.

Lake county: L. It. Webster, Judge. Defendant appeals. The respondent recovered a judgment in the circuit court for Lake county against appellant in an action at law, and filed a statement of his costs and disbursements, which included the clerk’s and sheriff’s fees, to which appellant filed objections.

<p>Guardian’s Sale — When Sustained. — Where the question as to a guardian’s sale of lands of his ward arises collaterally and the pleadings do not attack the proceeding for want ot jurisdiction, and where the record discloses jurisdiction, both of the parties and of the subject matter, the sale will be sustained.</p> <p>Irregularities — Judicial Sales. — Mere irregularities of proceedings, though of so grave a character as to render a judicial sale inoperative, may be deprived of their evil consequences by subsequent legislation.</p>

<p>Jackson county: R. S. Bean, Judge.</p> <p>Defendant appeals.</p> <p>The principal opinion in this case is reported in 19 Oregon, 383.</p>

Washington county: Frank J. Taylor, Judge. Plaintiff appeals. This is an action to recover from the defendant compensation for services as a physician, rendered by plaintiff at the request of defendant, in caring for persons afflicted with small-pox, within the town.

<p>Contemporaneous Writings. — Two written agreements between parties about the same subject matter, made at the same time, or in close succession, are not presumed to be contradictory, but the intention to change the terms of one by the execution of the other must affirmatively appear.</p> <p>Interest — Contract to Purchase Land.— Facts examined and held to be inequitable for one occupying and enjoying use of land under contract to purchase the same, not to pay interest on the unpaid purchase price.</p>

Multnomah county: E. D. Shattuck, Judge. Plaintiffs appeal. The presumption is, that the legislature does not intend to make any alterations in the law beyond what it explicitly declares, either in express terms, or by unmistakable implication; or in other words beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed.

Multnomah county: E. D Shattuck, Judge. Plaintiff appeals. This action is prosecuted by the plaintiff against the defendant to recover the sum of §422.60 for grading, cutting and filling Margaretta avenue, one of the defendant’s streets, which work is alleged to have been done at the special instance and request of the defendant.

Multnomah county: L. B. Stearns, Judge. Plaintiff appeals. This is a suit to quiet the title to a parcel of land situate in Multnomah county. The referee found against both claimants; that is, that neither of them was entitled to the land in controversy, which finding was confirmed by the court and a final decree entered dismissing the suit, from which both parties have appealed. The facts sufficiently appear in the opinion.

Multnomah county: L. B. Stearns, Judge. Defendant appeals. The charging part of the indictment is as follows: “The said Tony Lynch, on the 20th day of October, 1890, in the county of Multnomah and state of Oregon, was armed with a dangerous weapon, namely, a pistol loaded with gunpowder and leaden balls, and being so armed with such dangerous weapon aforesaid, did then and there unlawfully and feloniously assault one James Brown with such dangerous weapon, by then and there…

Multnomah county: E. D. Shattuck, Judge. Defendant appeals. This is au action brought by the plaintiff to recover from the defendant the sum of §1,401.25 on account of the alleged failure of the defendant to deliver to the plaintiff certain personal property, specifically enumerated in the complaint, and constituting the contents of seven trunks.

Multnomah county: E. D. Shattuck, Judge. Defendant appeals. This was an action to recover damages from the defendant for negligence in the construction of a certain retaining wall and roadway upon its property above the plaintiff, whereby his fruit trees and buildings were injured and his land covered with a large amount of rock and other debris by the sliding down of the same, etc. The defendant, after denying the negligence alleged, or any fault in the construction of such…

Multnomah county: L. B. Stearns, Judge. Defendants appeal. The facts out of which this controversy has arisen are briefly these: The defendant Franey and one John E. Woods jointly contracted with the city of East Portland to do the grading and graveling of Twelfth street in said city, and to construct the side and cross-walks thereon.

Multnomah county: E. D. Skattuck, Judge. Defendant appeals. A verdict, whether general or special, must decide the point in issue, and unless it does no judgment can be rendered thereon. (Patterson v. U. 8. 2 Wheat. 221; Garland v. Davis, 4 Flow. 131.) The verdict being silent upon the issues of ownership and the taking and detention of the property in dispute, is not sufficiently definite and certain to serve as a basis for a judgment.

Multnomah county: E. D. Shattuck, Judge. Defendant appeals. This action is founded upon three several promissory notes made by the defendant to the plaintiff. The complaint is in the usual form. The answer in effect admits the execution and delivery of the notes, but denies there is anything due thereon.

<p>Multnomah county: E. D. Shattuck, Judge.</p> <p>Defendant- appeals.</p> <p>On March 19, 1890, the plaintiff J. J. Wiseman commenced an action in the circuit court of the state of Oregon, for the county of Multnomah, against the defendant to recover the sum of $398.72, the value of certain household goods claimed to have been lost by defendant in transit. The complaint alleges that on or about the 8th day of April, 1889, at Nunica, Michigan, the plaintiff delivered to the Detroit, Grand Haven & Milwaukee Railway Company a shipment in six boxes, one trunk, one roll of carpet, and two barrels containing household goods, the property of the plaintiff, for transportation to Salem, Oregon; that said shipment was in due time delivered in good order to the defendant as a connecting carrier, and that one of said boxes and one of said barrels, with their entire contents, were destroyed and never delivered to plaintiff, which household goods so destroyed were of the value of $373.05. The defendant in its answer to the complaint admits the shipment by plaintiff and the delivery to the Detroit, Grand Haven & Milwaukee Railway Company of the household goods in question, and that the same was in due time received by defendant from the Detroit, Grand Haven & Milwaukee Railway Company, a connecting carrier; admits that one of the boxes and one of the barrels with the contents were destroyed, but denies any knowledge as to the contents or value thereof. For a further and separate answer and defense, defendant alleged that the shipment of freight mentioned in the complaint consisted of household goods,, and that the same was shipped by plaintiff and received and accepted by the Detroit, Grand Haven & Milwaukee Railway Company as well as the defendant, a connecting line, under a contract with plaintiff, that if for any cause there should be a total loss of said freight and a liability on the part of the common carrier receiving the same, or over whose line the same was being or was transported, the total liability therefor, if any there should be, would he the sum of $5 per hundred pounds weight of said freight, and the same was received and accepted by defendant and shipped by plaintiff on said condition. The defendant further answering, and as a separate defense, alleged that at the date of shipment by plaintiff, to wit, April 8,1889, in order to obtain the benefit of the reduced rate of freight charges from the ordinary tariff rate charged therefor, the plaintiff and the Detroit, Grand Haven & Milwaukee Railway Company contracted and agreed in writing that in consideration of such reduced rates, the plaintiff, in case of any damage or loss to said goods arising by damage by fire while at stations or in transit, would and did release said company, and each and every other company over whose lines said goods might pass to destination, from any and all damage occurring to said goods; that said plaintiff was given and obtained the benefit of said reduced rates and executed said contract of release accordingly. The reply denies the new matter alleged in the answer.</p> <p>On the trial, the plaintiff gave evidence tending to prove the issues on his part, and then rested. Defendant then gave evidence tending to prove the execution by plaintiff of the release and contract mentioned in the answer; that it was executed in duplicate, one copy being attached to the bill of lading, and the other was, by the agent of the Detroit, Grand Haven & Milwaukee Railway, at Nunica, Michigan, forwarded to the traffic manager of that road at Chicago, 111. Defendant then called Alfred Watts, who was claim clerk of the Northern Pacific Railroad Company at Portland, Oregon, who testified he was clerk in the office of Mr. Fulton, general freight agent of the defendant at Portland; that he had telegraphed to the claim agent of the defendant at St. Paul to ascertain if a release had been made on the plaintiff’s shipment of goods from Nunica, and if so to send the original release that was signed by Mr. Wiseman; that the claim agent at St. Paul telegraphed back that the files in the office of the traffic manager at Chicago had been searched and the release could not be found; that the release never was in his office at Portland, and the parties who handled the waybill of plaintiff’s goods said there was no release attached to it when it reached its destination. The defendant then offered the deposition of the agent at Nunica to prove the contents of the release, but the court refused to admit secondary evidence of its contents, to which ruling defendant duly excepted, and assigns the same as error on this appeal.</p>

Multnomah county: L. B. Stearns, Judge. Defendant appeals. This is a suit to foreclose a mechanic’s lien alleged to exist in favor of respondent and several other persons for clearing a tract of land within the corporate limits of the city of Albina.

Multnomah county: L. B. Stearns, Judge. Defendant appeals. The defendant was indicted, tried and convicted of the crime of incest, alleged to have been committed with his daughter Josephine Ross, on the 15th day of April, 1889, in Multnomah county, Oregon.

<p>Jackson county: L. R. Webster, Judge.</p> <p>Defendants appeal.</p>

Jackson county: L. R. Webster, Judge. Plaintiff appeals. The questions of law argued on this appeal arise on the findings of the trial court, which are as follows: (1) On the 17th of April, 1889, the plaintiff and defendants made an agreement that if the plaintiff, who was a real-estate agent, would sell for the defendants a certain tract of land containing two hundred and fifty acres owned by them, they would pay him two hundred and fifty dollars for his services in making…

Lane county: M. L. Pipes, Judge. Plaintiff appeals. This is an action to recover real property. The complaint describes a number of tracts and parcels, some by legal subdivisions and others by courses and distances, and it is alleged that the defendant is in possession and unlawfully holds all of the real property described in the complaint. The complaint contains the other necessary allegations under the statute.

<p>Marion county: R. P. Boise, Judge.</p> <p>Plaintiff appeals.</p>

<p>Commission op Executor, When Not Allowed. — No commission can be allowed an executor on property which never came into his possession, nor on property which, although it belonged to the estate, has not been administered on and is not under the control of the probate court.</p> <p>Unusual and Extraordinary Services, What Are. — Unusual and extraordinary services of an executor, for which the court is authorized to allow compensation, are such services as are not ordinarily required of an executor in the discharge of the duties of his trust.</p> <p>Idem — Claim por. — The claim of an executor or administrator for unusual or extraordinary services should contain a statement of each special service claimed to have been rendered, with its particular value; and until such an account is presented, no allowance should be made therefor.</p> <p>Executor Allowed Reasonable Attorney's Pees. — An executor is entitled to reasonable attorney's fees in any necessary litigation or matter requiring legal advice or counsel.</p> <p>Claim for Attorney’s Fees, How Presented. — A'claim of an executor for attorney’s fees should ordinarily be presented in an itemized form and not for an aggregate amount by the year; but under the peculiar circumstances of this case, this rule ought not to be enforced.</p> <p>Executor — Clerk Hire. — It is the duty of an executor to keep and render a just account of his trust, and if he thinks proper to keep a clerk for that purpose he must do it at his own expense.</p>

Multnomah county: E. D. Shattuck, Judge. Plaintiff appeals. This is an action of ejectment brought to recover certain real property in the city of East Portland. The complaint is in the usual form and contains all the allegations required by the statute. The answer traverses plaintiff’s allegations and then alleges title in the defendant.

<p>Multnomah, county: L. B. Stearns, Judge.</p> <p>Defendant appeals.</p>

Multnomah county: E. D. Shattuck, Judge. Defendant appeals. This is an action to recover damages for alleged negligence.

Yamhill county: R. P. Boise, Judge. Plaintiff appeals. The legislature of a state has power to appropriate the revenues of a county or charge a debt upon a county. (Sangamon Co. v. Springfield, 63 111. 71; Richland Co. v. Lawrence, 12 III. 1; People ex rel. v. Flagg, 46 N. Y. 401; David v. Portland Water Co. 14 Or. 99; Dillon Mun.

<p>Complaint Dismissed foe Want op Peopeb Paeties, When. — When it appears irom the record that the real merits of the suit cannot be determined without essentially affecting the rights of persons in the subject matter, who are not parties, and whose names nowhere appear in the record, this court wiU refuse to examine the facts, but dismiss the complaint for want of parties.</p>

Douglas county: R. S. Bean, Judge. Defendant appeals. This controversy arises on the cross-bill filed by the respondent to the appellant's complaint in the original action of Nannie L. Owens v. Sol. Abraham pending in the circuit court of Douglas county, Oregon.

Jackson county: L. R. Webster, Judge. Plaintiff appeals. The property in controversy in this suit is certain machinery necessary for and used in operating what is known as a sash and door factory and planing mill at Ashland, Oregon. This machinery was purchased on April 22, 1887, of the Parke & Lacy Machinery Company, of Portland, by defendant Wm. M. Gilroy, and one Youle, who were the owners of the real estate, water-power and building in which the machinery was placed.

Lake county: L. R. Webster, Judge. Defendant appeals. The defendant was indicted for playing at faro for money, and checks as representatives of money and value. The evidence offered on the part of the state tended to prove that the only way in which the defendant played was to bet money against the game, which was a banking game set up, carried on and dealt by others.

<p>Lake county: L. R. Webster, Judge.</p> <p>Defendant appeals.</p> <p>By the indictment in this case the defendant was charged with the crime of dealing, playing and carrying on a game of faro on the 29th day of September, 1890, in Lake county, Oregon. Upon a trial before a jury he was convicted, from which judgment he has appealed. The other facts appear in the opinion.</p>

Benton county: M. L. Pipes, Judge, Defendant appeals. This is the second appeal in this case. The opinion of the court on the former appeal is reported in 19 Or. 81, where the facts are stated. Other facts necessary to understand the questions presented on this appeal are stated in the opinion.

<p>Variance, When not Material. — No variance between the allegations and proof is material unless the adverse party is misled to his prejudice in maintaining his action or defense on the merits.</p> <p>Party Claiming to be Misled Must Prove Sam:e. — Whenever a party claims to be misled, that fact should be proved to the satisfaction of the court, and unless he does so, the court may either direct the fact to be found according to the evidence, or order an immediate amendment without costs.</p> <p>What Not a Variance. — When the allegation is unproved, not in some particular or particulars only but in its entire scope and meaning, it shall not be deemed a variance, but a failure of proof.</p>

<p>Practice — Trial by the Court — Findings.— In the trial of an action by the court without the intervention of a jury, there must be findings of fact sufficient to sustain the judgment. All of the material issues made by the pleadings should be passed upon. McFadden y. Friendly, 9 Or. 222, so far as it states a different rule, is overruled.</p>

Marion county: R. P. Boise, Judge. Defendants appeal. This is an action of ejectment to recover two small parcels of real estate situated in Marion county, Oregon, in which it is alleged that the plaintiff owns an undivided interest as a tenant in common with certain others who are named in the complaint. The complaint is in the usual form in such cases.

<p>Multnomah county: E. D. Shattuck, Judge.</p> <p>Plaintiff appeals.</p> <p>The complaint in this action alleges substantially that on March 24,1888, plaintiff, being the owner of a tract of land in East Portland, known as Sunnyside, entered into a written contract with the defendant company for the construction, within four months from said date, and the operation for thirty years, from June 1, 1887, of a street railway from the foot of Morrison street, in the city of Portland, to said tract of land, and as a consideration for which, plaintiff was to pay to said defendant the sum of $10,000 and furnish the right of way for said road; that by the terms of said agreement, among other things it was provided that defendant should cause cars to be run over said railroad, each and every day, from 6 o’clock A. M. until 8 o’clock P. M., so that a car shall pass' every point on said railroad every fifteen minutes in each direction, and between the hours of 8 o’clock P. M. and 11 o’clock P. M. cars shall pass every thirty minutes in each direction, and that it should not charge for transporting passengers on said line more than five cents for each passenger going in one general direction, and that no further fare shall be charged or compensation demanded for transporting such passengers across the Willamette river. By said agreement it yas further provided that “for the due and faithful performance- of the conditions of this agreement, on the part of each of the parties hereto, they respectively bind themselves, each to the other, in the sum of ten thousand dollars, to be paid to the failing party”; that plaintiff has duly performed all the conditions of said contract on its part; that the object of plaintiff in securing the railway services contracted for in said agreement was to render said tract of land desirable for residence purposes and make it more valuable and salable, all of which defendant well knew; that defendant entered upon the performance of the contract on its part, but has failed and neglected to perform the same, in that it does not cause cars to be run over said railway in each direction oftener than every thirty minutes between the hours of six o’clock in the morning and eight o’clock in the afternoon, nor oftener than every sixty minutes between eight and eleven o’clock P. M., nor does it transport passengers on said line at the rate of five cents for each passenger while going in one direction, but has repeatedly charged passengers at the rate of ten cents for such transportation; that since entering into said contract,plaintiff has sold one-half of its tract of land for $160,000, which was all that could be obtained, and is still the owner of the remaining half, which is of the value of $300,000; that if defendant had caused the cars to run on said line, as provided in the contract, and had only charged the fare therein-provided, plaintiff would have received for the portion of its land sold the sum of $170,000, and the part remaining unsold would be worth $310,000, and plaintiff’s land would have been benefited by the construction and operation of the road in the manner provided in the contract in the sum of $20,000; that by reason of the failure and neglect of the said defendant, above set forth, the plaintiff was prevented from selling the portion of its land which has been sold, for $170,000, which sum would have been the market value thereof, and is now prevented from selling the portion of its land remaining unsold for the sum of $310,000, which would be the market value thereof, and plaintiff is thereby and otherwise damaged in the sum of twenty thousand dollars. A demurrer being sustained and the complaint dismissed, plaintiff appeals.</p>

Yamhill county: R. P. Boise, Judge. Defendant appeals. This is an action to recover the sum of one thousand dollars on a preliminary oral contract for insurance alleged to have been made by defendant.

Multnomah county: E. D. Shattuck, Judge. Plaintiff appeals. An insurance company, upon paying a loss by fire, is subrogated to the rights of the insured, and at common law sues in the name of the insured, but for its own benefit. (Hart v. Western R. R. Co. 13 Met. 99, 46 Am. Dec. 719; 1 Phil. Ins. 464; 2 Id. 282; Conn. Fire Ins. Co. v. Erie Ry. Co. 73 N. Y. 399, 29 Am. Rep. 171; Ciarle v. Wilson, 103 Mass. 223, 4 Am. Rep. 532; Monmouth Co. Ins.

Multnomah county: E. D. EShattuck, Judge. Plaintiff appeals.

<p>Washington county: F. J. Taylor, Judge.</p> <p>Plaintiff appeals.</p> <p>This is a suit for divorce. The plaintiff has also joined in the same suit a claim to recover $1,487 advanced by him at the defendant’s request to pay off a certain mortgage on real property in Washington county then owned by defendant’s mother, and for other equitable relief. It is charged that the defendant induced the plaintiff to pay and advance $1,487 by means of fraudulent statements, promises and representations, all of which are particularly alleged. The answer denies most of plaintiff’s allegations, and then recriminates desertion of the defendant by the plaintiff, and there is no objection that there is a misjoinder of causes of suit. The court dismissed the complaint, as well as the defendant’s cross-complaint, from which decree dismissing the complaint the plaintiff has appealed.</p>

<p>Constitutional Law — Statute Presumed Valid. — Before a statute is declared void, in whole or in part, its repugnancy to the constitution ought to be clear, palpable .and free from doubt.</p> <p>Municipal Purposes — Public Corporation. — A corporation created for municipal purposes is one established by law for public or governmental objects, subject to the control of the legislature, with certain delegated political powers to be exercised for the public good in the administration of civil government, and whose members are citizens, not stockholders.</p> <p>Uniform Taxation — Legislative Power. — The legislature has undoubted authority to apportion a public burden among all the taxpayers of the state or among those of a particular section, if, in its judgment, those of a single section may reap the principal benefit from the proposed expenditure.</p> <p>Statutory Construction — Port of Portland. — The act of February 18, 1891, establishing the port of Portland, forms a corporation for municipal purposes, and is therefore not within the provision of the constitution against creating corporations by special laws; neither does it violate the constitutional provision that all taxation shall be equal and uniform.</p>

Coos county: M. L. Pipes, Judge, Defendant appeals. This is an action to recover damages for negligence.

Multnomah county: E. D. Shattuck, Judge. Defendant appeals. This is an action brought by the plaintiff as administrator of the partnership estate of J. N. Gardner, Presley Gillihan, and M. E. Gillihan, deceased, against the defendant as administrator of the individual estate of M. E. Gillihan, deceased, to recover possession of certain personal property alleged to belong to said partnership estate. The complaint is in the usual form.

Benton county: R. S. Bean, Judge. Defendant appeals. Not having alleged any submission of the differences between the parties to the decision of the divisional engineer, the corn-plaint fails to state a cause of action, and it was error on that account to allow any evidence whatever to go to the jury in sup= port of the allegation of short measurements and wrong classification. (Howard v. R. R. Go. 69 Pa. St. 489; Mason v. Bridge, 14 Me. 468, 31 Am.