Volume 29 — Oregon Reports

H. Burnett, Judge. This is an action by O. J. Schreyer to recover money loaned to the Turner Flouring Mills Company, and the case is here on its appeal.

This is a proceeding to disbar an attorney, instituted by the State upon the relation of the members of the Grievance Committee of the Oregon State Bar Association. The facts are that O. P. Mason, a licensed attorney, was indicted, tried, and convicted of the crime of libel, upon proof of the publication of defamatory matter in a newspaper published at Portland, Oregon, known as the Sunday Mercury, while he was its editor.

Hanna, Judge. This is an action by Joseph W. Hockersmith against M. F. Hanley to recover for a breach of contract on a sale of certain beef cattle.

Hanna, Judge. This is an action hy T. J. Kenny to recover the amount claimed to be due on two promissory notes executed by Enoch Walker and others to the order of one W. J. Gooch, who, it is alleged, assigned them to the plaintiff for a valuable consideration and before maturity. The complaint contains two separate causes of action, and is in the usual form.

<p>X. Disbarment op Attorney — Unprofessional Conduct. — In a proceeding for disbarment it appeared tbat defendant, being employed to resist tbe probate oí a will, drew up a petition for bis client’s appointment as administrator, and prepared a typewritten form of journal entry for tbe clerk, naming therein three persons as appraisers; that defendant then had the petition filed, and sent the same, with the entry, to the county judge, who lived at some distance; that, after filing the petition, defendant learned that a petition for the probate of the will was on file, but did not inform tbe judge, who approved the petition sent him by defendant, signed the journal entry and returned the papers to defendant; that the latter then went to the clerk’s office with the appraisers named, to have them qualify, but, one of them declining to act, defendant drew his pencil across his name in the entry, and wrote above it the name of another, the change being made in accordance with a custom of the bar, and in the presence of the three appraisers finally chosen, the clerk, and attorneys for proponents. Held, that there was nothing in defendant’s conduct to warrant disbarment.</p> <p>2. Mutilation of Public Record — Code, §1853. — A form of entry, signed by the judge, and intended for entry in the journal of the court, is not a “public record, paper, or writing,” the mutilation or changing of which is prohibited by Hill’s Code, § 1853. The form was merely for the direction of the clerk, and the book or journal is the court record.</p>

D. Shattuck, Judge. This action was brought by A. R. Heintz and Company against Joseph Burkhard to recover damages for the breach of a contract to furnish the iron work for defendant’s building, and comes here on an appeal from a judgment of nonsuit.

C. Fullerton, Judge. This action was instituted to recover on a promissory note calling for the sum of one thousand one hundred and seventy dollars on or before September ninth., eighteen hundred and ninety-three, with interest at ten per cent, per annum from maturity, executed and delivered to J. D. Matlock, October twenty-second, eighteen hundred and ninety-two, by the defendants A. Wheeler, E. J. Crawford, J. N. B. Fuller, and J. G. Goodale.

This case comes here on appeal from a judgment given in favor of defendant notwithstanding a verdict of the jury adverse to him.

: T. A. Stephens, Judge. The defendant X. N. Steeves was jointly indicted with one Joseph Kelly for the crime of murder in the first degree, alleged to have been committed in the killing of one George W. Sayres. They had separate trials.

<p>1. Pleading — Mortgage on Doweb. — A complaint in a suit to enforce a mortgage on a widow’s dower interest must show the facts from which the portion of the mortgage debt properly chargeable to such dower interest can be ascertained.</p> <p>2. Mortgage — Dower.—The amount of a mortgage debt chargeable on a widow’s dower interest is such proportion thereof as the gross value of her life estate in the mortgaged premises, on the date of its determination, bears to the value of the entire premises, to be ascertained on the principles of law applicable to the valuation of life estates.</p>

B. Stearns, Judge. This is a suit to foreclose mechanics’ liens in favoT of Inman, Paulson and Company and defendant F. E. Beach upon the property of the defendant S. J. Henderson.

A. McBride, Judge. Suit by B. A. Frame and' A. W. Stowell, copartners as Frame and Stowell, against Charles F. Sliter and others, to foreclose a vendor’s lien. Judgment for defendants, and plaintiffs appeal.

Hanna, Judge. This is an action for work and labor alleged to have been performed under a contract of hiring.

A. MoBkide, Judge. This is an action of trespass by Tatum and Bowen against G. A. Massie for unlawfully taking and. disposing of certain personal property alleged to be tbe property of plaintiffs.

<p>Nonsuit — Biel or Exceptions — Pkesumption.— Where it is assigned as error that a motion of nonsuit was improperly overruled, and it does not appear affirmatively that the bill of exceptions contains all the evidence, it will be presumed in favor of the judgment of the lower court that there was sufficient evidence to warrant a submission to the jury.</p>

C. Fullerton, Judge. This is a suit by E. E. Upmeyer et al., as partners under the firm name of the Harrisburg Lumber Company, against C. W. Washburn et al., as trustees of the Methodist Episcopal Church of Junction City, the Sugar Pine Door and Lumber Company, a corporation, and the Board of Church Extension of the Methodist Episcopal Church, a corporation, to foreclose an alleged lumber merchant’s lien on certain real property in said city.

C. Fullerton, Judge. This is a creditor’s suit to set aside, as fraudulent and void, certain judgments confessed, and an alleged deed of general assignment executed by an insolvent debtor; to enjoin the sheriff from selling property seized under executions issued upon said judgments; and for the appointment of a receiver to dispose of the debtor’s property.

D. Shattuck, Judge. This is an action by J. Johnson and Company against George L. Hibbard to recover eight hundred and fifteen dollars for goods sold and delivered at and for an agreed price. The defendant denies all the allegations of the complaint, except the copartnership of plaintiffs, and that certain goods were delivered.

C. Fullerton, Judge. This is an action by Lemuel A. Clark against H. Bundy and others, commenced on September eighteenth, eighteen hundred and ninety-three, to recover possession of the undivided one half of certain real property situate in Lane County, Oregon. The defendants by their answer put in issue the material allegations of the complaint, allege title in the defendant H. Bundy, and plead the statute of limitations.

C. Hale, Judge. This is an action by George Yon L. Meyer against Quincy A. Brooks and others on a judgment recovered by the plaintiff against the defendants in the State of Washington.

From Multnomah: Hartwell Hurley, Judge. This is an action at law by J. M. Foster against C. M. Henderson and Company to recover money. The complaint contains five counts or separate causes of action.

From Multnomah: Hartwell Hurley, Judge. This is an action to recover the sum of three thousand seven hundred and seventy-two dollars and forty-one cents for lumber alleged to have been sold and delivered by the plaintiff to the defendant between the seventeenth day of November and the thirty-first day of December, eighteen hundred'and ninety-two, as part of the cargo o'f the ship St. Catherine, loaded by William Dunbar, and destined for some point in China.

From Baker: Robert Eakin, Judge. This is a suit to compel the reconveyance of certain placer mines, ditches, flumes, and water rights, and for an accounting for the rents and profits thereof. The principal issue involved in the controversy is the right of the plaintiff in a contract entered into by the defendants S. A. Heilner and his deceased partner E. D. Cohn with one W. B. Benson, a copy of which is set out in the opinion in the case of Manaudas v. Heilner, 12 Or. 335.

From Douglas: J. C. Fullerton, Judge. This is a suit to foreclose a mortgage made to secure the payment of a promissory note executed by defendant William McBee to Stephen Minard, calling for the sum of three thousand dollars, with interest at eight per cent, per annum, and bearing date October fourth, eighteen hundred and eighty-seven. From a decree for plaintiff defendant appeal.

From Union: Robert Eakin, .Judge. This is a suit hy John Askren the assignee of certain claimants to foreclose alleged miners’ liens upon the Good Thought Quartz Mine, in Union County, the property of the defendant Abbie W. Squire.

From Umatilla: Robert Eakin, Judge. This is an action by W. H. Kimery against D. W. Taylor to .recover the possession of nineteen horses, of the alleged value of nine 'hundred and forty dollars.

From Multnomah: Hartwell Hurley, Judge. This action was brought to recover possession of a stock of merchandise mortgaged by defendants to plaintiff. It is claimed that defendants have been guilty of a breach, of the mortgage conditions, and for that reason plaintiff was, at the commencement of the action, entitled to possession of the stock.

From Marion: George H. Burnett, Judge. This is a suit by Dora A. Hoffmire and others to declare null and void, a deed made by their deceased father, John M. Martin, in April, eighteen hundred and ninety-three, to the defendant James S. Martin, on the ground of nondelivery. There was a deeree for plaintiffs, and defendant appeals.

<p>Local Improvements — Abutting Owner — Personal Liability.— Undei a charter authoring a city to improve and repair streets at the expense of the owners of the lots abutting upon such improvements, the city cannot recover a personal judgment against such owner, but the expense is a charge only upon the abutting property.</p>

From Baker: Robert Eakin, Judge. This is' a suit brought for the purpose of setting aside as fraudulent a certain chattel mortgage given by defendant E. M. Van Slyck to the Baker City National Bank, and to have the lien of the bank thereunder decreed to be inferior to the subsequent attachment lien of plaintiff.

From Wallowa: Robert Eakin, Judge. Action by the State of Oregon against J. P. Gardner and John P. Shevlin on a bail bond executed by defendants and one R. M. Downey. From a judgment in favor of plaintiff, defendants appeal.

From Baker: Robert Eakin, Judge. This is an action to recover damages for the publication of an alleged libel.

From Malheur: Morton D. Clikkord, Judge. This is au appeal by the First National Bank of Winnemucca from a judgment in its favor involving the validity of an order discharging certain real property from an attachment lien.

From Malheur: Robert Eakin, Judge. This is a proceeding by mandamus to compel the sheriff under section 2832, Hill’s Code of Oregon, to deduct certain indebtedness claimed by Steel and Adams from the amount of their taxable property, and to remit the taxes upon the amount so deducted.

From Baker: James A. Fee, Judge. This is an action to recover the sum of five hundred and sixty-two dollars, for labor and services alleged to have been performed by John J. Dooley, plaintiff for the First National Bank of Baker City, at its special instance and request, from the first day of July, eighteen hundred and ninety-three, up to and including the fifteenth day of February, eighteen hundred and ninety-four, in talcing care of, managing, controlling and selling a…

From Wasco: W. L. Bradshaw, Judge. This is an action brought to recover money alleged to be due on the breach of a contract.

From Wallowa: Robert Eakin, Judge. This is a suit in the nature of a creditor’s bill by the Wallowa National Bank to subject certain real estate, formerly owned by the defendant Levi W. Riley, to the payment of plaintiff’s judgment.

From Wallowa: Robert Eakin, Judge. This is an action by James M. Mitchell and others against Silver Lake Lodge, Number Eighty-four, Independent Order of Odd Fellows, to recover damages for an alleged abuse of legal process.

From Union: Robert Eakin, Judge. Action by A. L. Schmidt, trustee, against the Oregon Gold Mining Company, to foreclose a mortgage. Petition by John Doerhoefer to have a redemption by J. H. Farrell set aside. A demurrer to said petition was sustained, and Doerhoefer appeals.

From Coos: J. C. Fullerton, Judge. The defendant, W. A. Hatcher, was indicted for the crime of manslaughter, alleged to have been committed in the killing of one Frank H. Blair, and upon conviction thereof was sentenced to the penitentiary for the term of one year. From this judgment he appeals.

From Multnomah: Hartwell Hurley, Judge. This is an action by James B. Montgomery against Charles H. Page to enforce contribution.

From. Multnomah.: E. D. Shattuck, Judge. This is an action to recover damages. On the sixteenth of July, eighteen hundred and ninety-one, the plaintiff Sidney Crawston purchased of the defendant Ira B. Sturgis a tract of land in Raven’s View Addition to Portland, known and designated on the plat as lot number five, for the sum of five thousand dollars.

From Multnomah: E. D. Shattuck, Judge. This is an action by Andrew Kiser against Joseph Holladay to recover on a quantum meruit for work and labor done and performed between and including July ninth, eighteen hundred and eighty-nine, and July thirtieth, eighteen hundred and ninety-four.

From Union: Morton D. Clippord, Judge. This appeal is prosecuted by Henry Dray, an heir of A. Dray, deceased, and a creditor of his estate. M. S. Bloch, as administrator of the estate, filed his final ^account in the County Court of Union County on the sixth day of September, eighteen hundred and ninety-two. To this account objections were filed by the appellant, and one D. Marks, also a creditor.

From Union: Morton D. Clifford, Judge. This is a suit by Homer Nessley against Freeman Ladd to quiet the title to certain premises described as the southwest quarter óf the southwest quarter of section twenty-eight, and the west half of the northwest quarter, and the southeast quarter of the northwest quarter of section thirty-three, all in township two south, range thirty-eight east, Willamette Meridian, situated in Union County, Oregon.

From Umatilla: Stephen A. Lowell, Judge. Joe Kalyton was convicted of the crime of perjury in giving false testimony in a criminal case, and appeals.

From Union: Robert Eakin, Judge. The defendants David Heidenreich and G-.

From Baker: Robert Eakin, Judge. This is an action commenced by Jerry Waggy against the partnership of Scott and Company in the Justice’s Court of District Number One of Baker County, to recover damages resulting from the breach, of a parol agreement, and also the reasonable value of goods, wares, and merchandise sold and delivered.

From Linn: George H. Burnett, Judge. This is a suit for divorce, brought by the wife on the ground of personal indignities rendering her life burdensome.

From Union: Morton D. Clifford, Judge. Suit by the Farmers’ and Traders’ National Bank of La Grande and others against William J. Snodgrass and others to foreclose' a mortgage and determine the conflicting claims to the proceeds of the mortgaged property.

From Harney: Morton D. Clifford, Judge. This is an action of trespass by Emmett Barr against George Combs for the seizure, detention, and sale of certain personal property belonging to the plaintiff by the defendant Combs, sheriff of Grant County, at the instigation and request of his codefendant Rader.

From Multnomah: E. D. Shattuck, Judge. Action by B. F. Egan against the Oakland Home Insurance Company to recover the amount of a fire insurance policy issued to one Opsal. After the loss Opsal assigned his claim to plaintiff, who was defeated in the trial court and appeals.

From Multnomah.: Loyal B. Stearns, Judge. This is a suit by the West Portland Park Association to restrain the sheriff of Multnomah County from selling the lands of the plaintiff situated in said county for the taxes assessed thereon for the year eighteen hundred and ninety-two.

From Multnomah.: E. D. Siiattuck, Judge. Mon Luck having been convicted and sentenced to the county jail for violating a state act regulating the sale of opium, applied for a writ of habeas corpus to secure his discharge on the ground that the act in question is unconstitutional. The writ was denied, and petitioner appeals.

From Multnomah; Loyal B. Stearns, Judge. This is a consolidated suit to foreclose four mechanics’ liens against the property of Mrs. J. B. Elwert, the defendant and appellant herein.

From Harney: Morton D. Clieeord, Judge. This is a suit brought in the Circuit Court for Harney County by A. Neuberger and others to set aside a general assignment for the benefit of creditors made by the defendant Boyce to his codefendant Haines, on the ground that the same is fraudulent and void as to plaintiffs.

From Umatilla: Stephen A. Lowell, Judge. This is an action commenced in the name of the state, by the. district attorney of the sixth judicial district, upon a relation of J. L. Carter, to oust Nellie M. Stevens from the office of county superintendent of common schools for Union County, and to reinstate the relator therein.

From Multnomah: Henry E. McGinn, Judge. On Motion to Affirm. This is a motion under Eule 14 to affirm a judgment on an alleged abandoned appeal.

From Multnomah: Hartwell Hurley, Judge. This is an action to recover upon a promissory-note executed by the Snell, Heitshu and Woodard corporation to one Marcos Morales, and by him indorsed to the plaintiff, M. Miller Owens, who claims as a bona fide purchaser for value before maturity.

From Douglas: J. G. Fullerton, Judge. This is an action brought by W. It. Willis against Asher Marks, in the County Court of Douglas County, to recover the possession of a certain.paper on which is written the particulars of a claim against the estate of S. Marks and Company, described in the complaint, which, omitting formal parts, is as follows: “That on the eighth day of.

From Sherman: W. L. Bradshaw, Judge. Daniel O’Connor seeks by this action to recover from James M. Van Hoy and others possession of certain personal property consisting of one Buffalo-Pitt engine, one Buffalo-Pitt separator, and one Jackson self-feeder.

From Grant: Morton D. Clifford, Judge. This is a suit by A. Tyler against James Cate and B. F. Grant to quiet the title to real property, and to enjoin a trespass thereon.

From. Multnomah: E. D. Shattuck, Judge. This action was commenced on the eighth day of May, eighteen hundred and ninety-one, by Saverio Fiore against W. S. Ladd and W. M. Ladd, bankers, doing business as Ladd and Tilton for the recovery of the sum of eight hundred dollars.

From Multnomah: E. D. Shattuck, Judge. The complaint herein contains twenty-seven separate causes of action, all similarly stated. The defense to each . of said causes set up in the answer is also of a like nature, so that it will only be necessary to an understanding of the case to summarize the pleadings of a single cause.

From Multnomah.: Hartwell Hurley, Judge. This is an action by Mrs. Sarah Smith to recover damages for an injury caused by the alleged negligence of the City and Suburban Railway Company in the operation and management of one of its electric cars. The defendant’s car line on Morrison Street, in the City of Portland, consists of two tracks about four feet apart. The cars going east use the south, and those going west the north track.

<p>1. Written Contract — Parol Evidence.* — Where the written memorandum of an agreement is incomplete or ambiguous, parol evidence is admissible to show the facts; thus, where one party offered in writing to “ furnish you crushed rock ” at a certain place and price, and the written answer stated “your proposal to furnish us with crushed rock is accepted, ” the writings did not constitute a complete contract, and parol evidence should have been allowed to show the amount of rock meant by plaintiff.</p> <p>2. Measure of Damages for Breach of Contract.— The measure of damages for breach of a contract to accept and pay for certain material is the difference between the contract price and what it would have cost the party contracting to furnish it to perform his obligation.</p> <p>3. Pleading — Parol Agreement.— In an action for breach of a contract, a part only of which has been reduced to writing, plaintiff should allege execution of a parol agreement.</p>

From Multnomah.: Hartwell Hurley, Judge. This is an action by M. M. Harris to recover possession of lot eight and the north half of lot seven, block 112, Stephens’ Addition to East Portland, Oregon. Each party thereto alleges that he is the owner and entitled to possession. The defendant, Charles Harsch, further alleges that plaintiff’s claim to said premises is based upon an alleged tax sale, and that said sale is invalid.

From Grant: Morton D. Clifford, Judge. This is an action by the Long Creek Building Association on an insurance policy issued by the State Insurance Company in October, eighteen hundred and ninety-four, for the premium of which the plaintiff gave its promissory note, payable on or before January first, eighteen hundred and ninety-five, at the home office of the defendant company in the City of Salem.

From Multnomah.: E. D. Shattuck, Judge. This is a mandamus proceeding by the State, on the relation of the German Savings and Loan Society, to compel the sheriff of Multnomah County to execute and deliver to the relator a deed for certain real property purchased by it at foreclosure sale.

From Multnomah: Loyal B. Stearns, Judge. This is a suit by Sarah Norton against Mrs. J. B. Elwert for a mandatory injunction to compel the removal of a wall, and to recover damages resulting from its erection, involving the location and establishment of a disputed boundary line between the lands of the plaintiff and the defendant.

From Douglas: J. C. Fullerton, Judge. The defendant, F. H. Skinner, was indicted, tried, and convicted of the crime of larceny by bailee, and, having been sentenced to the penitentiary for the term of two years, he appeals, assigning as error the refusal of the court to instruct the jury to return a verdict of not guilty.