Volume 40 — Oregon Reports

From Multnomah: John B. Cleland, Judge. Suit by James C. Windle against Ellis 6. Hughes and others to foreclose a mortgage. Hughes alone defended, and appeals from a decree and personal judgment against him.

<p>Raileoads — Geade Cbossing — Question eoe Juey.</p> <p>1. Plaintiff and another, familiar with a railroad crossing, attempted to cross the track with a team and wagon, and were struck by one of defendant’s trains. The highway, before crossing the track, ran parallel with and two hundred to three hundred feet from it for half a mile, the view being obscured at intervals. Some forty feet from the crossing the track could not be seen for several hundred feet eastwardly, the direction from which the men were approaching; but from that point the view from the road was obscured until within nineteen feet from the crossing. On approaching the crossing, the men slowed the team to a speed of one and one half miles an hour. Plaintiff testified that the wagon did not make noise enough to interfere with hearing; that at an open place, some forty feet from the track, in looking and listening they stopped the horses so that their movements were almost imperceptible; that, there appearing to be no danger from the east, they looked westwardly, and did not notice the train coming from the east in time to avoid a collision. Held, in an action for damages, that the question of contributory negligence was for the jury: Blackburn v. Southern Pac. Co. 34 Or. 215, distinguished.</p> <p>Raileoads — Negligence in Make-up oe Tbain.</p> <p>2. It is not negligence per se to operate a train in the country districts with the tender ahead of the engine, but the train must be run with reasonable regard to the rights of travelers on the public highways.</p> <p>Accident at Geade Cbossing — Duty to Look eoe Teain.</p> <p>3. An instruction, in an action for injuries received at a crossing, that plaintiff was guilty of contributory negligence if he did not look in each direction at such time and place as would enable him to avoid the approaching train on defendant’s track, was properly refused. In this class of cases the jury are ordinarily the judges of whether there was contributory negligence, and the instruction requested would have taken that question from them.</p> <p>Raileoads — Failube to Obey Rules as Negligence.</p> <p>4. A jury may consider the rules of the railroad company requiring a bell to be rung for a distance of a quarter of a mile before reaching a crossing in determining whether such precaution was reasonably necessary, and whether a failure to so ring the bell was negligence on the part of the company.</p>

From Clatsop: Thomas A. McBride, Judge. This is an action brought in the name of the United States, for the use and benefit of the Clatsop Mill Company, to recover a balance alleged to be due the mill company for lumber furnished to defendants Bulger & McCann, who, as contractors, did some work for the United States at the buoy depot near Astoria.

From Multnomah: John B. Cleland, Judge. Suit by the Title Guarantee & Trust Company against Caleb A. Aylsworth to remove an alleged cloud from the title to certain property and to quiet plaintiff’s title thereto. From a decree dismissing the suit plaintiff appeals.

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p> <p>Action on a promissory note by A. T. Creecy against R. Z. Joy. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Promissory Note — Guaranty—Demanding Payment of Maker.</p> <p>1. A guaranty of payment is an absolute promise to pay the guarantied obligation when due, no demand or notice is necessary to hold the guarantor, and mere passiveness on the part of the holder will not release the guarantor : Weiler v. Henarie, 15 Or. 28, applied.</p> <p>Note — Contract op Indorsement.</p> <p>2. An indorsement by the payee of a promissory note of the words, “I hereby guaranty payment of the within, and waive demand, notice of protest, and protest,” on the back thereof is a contract of indorsement and not of guaranty.</p> <p>Waiving Protest — Need op Consideration.</p> <p>3. Where on the day when a note was due the indorsers thereof signed a .provision on the back of the note waiving demand, notice of protest, and protest, no consideration was necessary to uphold such waiver.</p> <p>Note — Pleading—Proof—Immaterial Variance.</p> <p>4. Where in an action on a note an indorsement was alleged to have been made, and the note delivered, November 20, ic was competent to prove that the note was actually delivered, indorsed in blank, in the previous August, and that on November 20 an indorsement of a waiver of demand and notice of protest was made on the note.</p>

<p>Effect of Notice of Outstandins Equities.</p> <p>A purchase-money mortgagee, who voluntary releases the mortgage and takes a reconveyance of ■ the. mortgaged premises, knowing, or having the means of knowing, that the mortgagor has executed a bond for title therefor, takes the property subject to the equity so created, in the absence of accident, fraud, or mistake; and the holder of such a bond may enforce it against all persons knowing or being chargeable with notice of his claims.</p>

From Multnomah: Arthur L. Frazer, Judge. On June 21, 1894, the Brower & Thompson Lumber Company, an insolvent corporation (hereinafter designated as the “Lumber Company”), conveyed all of its property, real and personal, by deed and bill of sale absolute in form, to one E. H. Thompson, in trust, however, “for the benefit of all its creditors, without any preference or priority, other than provided by law. ’ ’ The declaration of trust was never placed on record, but Thompson…

From Multnomah: John B. Cleland, Judge. Suit by E. A. Thomas and others against the City of Portland and others. From a decree in favor of the plaintiffs, the defendants appeal.

Prom Multnomah: John B. Cleland, Judge. Suit by the Oregon Real Estate Company to restrain the City of Portland and its officers from enforcing the collection of sundry street improvement warrants by a sale of plaintiff’s property, and to annul them. There was a decree granting part of the relief demanded, from which both parties appeal.

From Multnomah: Alfred F. Sears, Jr., Judge. Action by E. T. Reade against the Pacific Coast Home Supply Association to recover the sum of $500 on a promissory note alleged to have been executed by the defendant, a private corporation, with interest from November 3, 1898, at the rate of ten per cent per annum, and the sum of $50 as attorney’s fees.

From Multnomah: Arthur L. Frazer, Judge. Action in tort for personal injuries by Stephen Shobert against Levi May and others. There was a judgment for plaintiff, from which this appeal is taken.

From Marion: Reuben P. Boise, Judge. Action by Francis Feller against Angie L. Feller before a justice of the peace. From a judgment of the circuit court reversing a judgment of the justice’s court, defendant appeals.

<p>From Washington: Thos. A. McBride, Judge.</p> <p>Action by Mary Maggie Halter Brock against John G. Weiss. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>From Clatsop : Thos A. McBride, Judge.</p> <p>Action for the pricé of goods sold by the Dean Bros. Steam Pump Works, a corporation, against the Astoria Iron Works, a corporation. From a judgment in favor of defendant, plaintiff appeals.</p>

From Marion: Reuben P. Boise, Judge. This proceeding was instituted in ,the county court by Claud Gatch, administrator de bonis non of the estate of W. J. Herren, deceased, against M. W. Hunt, administrator of the estate of J. J. Shaw, deceased, the former administrator of the Herren estate, and against the sureties on Shaw’s bond, to require the former to file the papers and vouchers in his possession showing the disbursements made by his intestate, and the latter to make…

From Multnomah: John B. Cleland, Judge. Suit by D. R. Hawkins against August Donnerberg and numerous others to enforce an alleged liability for certain subscriptions to the stock of the Citizens’ Real Estate Investment Co. Plaintiff had a decree and sundry defendants appealed.

From Marion: Reuben P. Boise, Judge. Suit by Fisher, Thorsen & Co. against S. Tomlinson and others to enforce-an alleged mechanics’ lien for materials sold to one Roberts, a retail dealer, who sold some of them to the contractor Tomlinson. There was a decree for defendants and plaintiffs appeal. There was a motion to dismiss the appeal which was overruled, and the case affirmed on the merits.

From Jackson: Hiero K. Hana, Judge. Jesse Houck and Joseph Dame were convicted of violating an ordinance against selling intoxicating liquors without a license, and appeal.

<p>From Polk: Geo. H. Burnett, Judge.</p> <p>Action by R. E. L. Steiner against Polk County. From a judgment in favor of plaintiff, defendant appeals.</p>

From Multnomah: Arthur L. Frazer, Judge. Action by B». B. Boyd against the Portland General Electric Company to recover for the loss of the services of his son, who was injured by one of defendant’s wires. It is a case growing out of the same accident referred to in Boyd v. Portland Elec. Co. 37 Or. 567 and 41 Or. —. Plaintiff had judgment and defendant appeals.

<p>From Lane: James W. Hamilton, Judge.</p> <p>The last will and testament of Elizabeth Conser, deceased, having been admitted to probate, and T. C~. Hendricks appointed executor in pursuance thereof, he prepared and filed an inventory and appraisement of the estate, setting forth various items of personal property, among which appears the following: “William Edris, W. P. Edris, K. S. Edris, one note, $8,120, date' February 7, 1894, payable on or before three years, interest 10 per cent. Credits. * * * Present value: Principal, $6,600; interest, probable real value $4,500, $684.50.” It also contains,, among others, the following items of real" property: Conser Block, on Ninth Street (with description), value $8,000; store occupied by Ax Billy, etc., value, $6,000. Subsequently, on December 5, 1898, the executor filed his final account, reciting, inter alia, that he had published notice to the creditors; that six months had elapsed since publication thereof; that all claims against the estate had been paid; that he had collected all outstanding notes that were good, had sold all the real property which he was authorized to sell, and that the estate was ready for final settlement. Among the items of money received are these: “Of Wolf and Rachel Sanders, from sale of Ax Billy store, $5,450; ’ ’ “from sale of William Edris’ note, $4,500;” “of Mrs. Shannon, for sale of Conser Block, $6,750.” To this account Mrs. Mary E. Warren, the residuary legatee, interposed objections, assigning divers reasons; among others, that the executor did not give proper bonds or take an oath to faithfully fulfill his trust; that he neglected to publish notice to creditors, or to file proof of the same; that he failed to inventory all the prop-1 erty, and have it appraised as the law requires; and the form of the account is criticised as not charging the executor with the appraised value of the estate, rents, interest, and personal property not inventoried, and for failing to take credit for real and personal property on hand. Specifically, objections are made to the sales of real property to Wolf and Rachel Sanders and Elizabeth Shannon, because of want of authority in the executor to make them in the manner adopted, and attending irregularities, and of discrepancies between the appraised, which, it is alleged, was the real value and the sale value; it being sought either to have the sales set aside, or to charge the executor with the deficit in each instance. It is further objected that the Edris note was disposed of for a sum much less than its appraised and actual value, and that the executor should be charged with that deficit also. Then follow other objections going to various items of credit claimed. There was a reply and a trial, after which the court settled and allowed the account. The objector appealed to the circuit court, and, the decree of the county court having been affirmed, she now appeals to this court.</p>

<p>From Marion: Geo. H. Burnett, Judge.</p> <p>Action by L. H. McMahan against the Canadian Pacific Railway Company. From a judgment in favor of defendant, plaintiff appeals.</p>

From Marion: Reuben P. Boise, Judge. In September, 1888, Yerena Wischer, an unmarried woman, over eighteen years of age, and of sound mind, executed her will in due form. Thereafter she married John C. Booth. No children were born of this marriage. Mrs. Booth died in January, 1899, and Mr. Booth in December of the same year.

From Multnomah: Alfred F. Sears, Jr., Judge. This is an action by Marie Miller, as administratrix of the estate of F. J. Miller, deceased, against Inman, Poulson & Company, a private corporation, to recover damages for causing the death of the said F. J. Miller. For a photographic reproduction of the premises is herewith presented. The deceased was working about and under a shaft in which there was a coupling from which projected a bolt and nut.

From Multnomah: Melvin C. G-eorge, Alfred F. Sears, Jr., and John B. Cleland, Judges, sitting in joint session. This is a suit by Wm.

From Union: Wm. R. Ellis, Judge. Suit by W. T. Wright and S. O. Swackhainef against A. C. and Amelia Craig to set aside a conveyance of certain realty by the former to the latter. There was a decree for the defendants, from which plaintiffs appeal.

<p>From Washington: Thos. A. McBride, Judge.</p> <p>Suit by Jean Baptiste Emile Garnier and others against Ira E. Wheeler and others. From a decree for defendants, plaintiffs appeal.</p>

From Columbia: Thos. A, McBride, Judge. James F. Watson, trustee, and another recovered a judgment against H. B. Borthwick, in 1895. At half past eight o’clock on the morning of the ninth of October, 1899, Borthwick died, and four hours later executions were issued on said judgment and instantly levied on his property. The next day D. J. Moore was appointed administrator of the estate and petitioned for the recall of the executions.

From Union: ¥m. R. Ellis, Judge. Mandamus by Baker County, a municipal corporation, against George W. Benson, county clerk, and ex officio clerk of the circuit court of Union County, to compel the defendant to make out and deliver certain transcripts to the clerk of Baker County, and also to deliver certain original papers on file in his office. From a judgment awarding a peremptory writ, defendant appeals.

<p>Negligence as to Teespassee on Raileoad Teack.</p> <p>Deceased, while riding on a hand car with and by invitation oí a section foreman, was killed by an irregular train, which came around a sharp curve at a high rate of speed. There was no time to check the train after the cálcame in sight. The negligence charged was in running such a .train around the sharp curve at a dangerous rate of speed without signals or precautions to discover whether there were persons on the track. The foreman, without the knowledge and against the rules of the defendant, had been accustomed to take persons over this piece of road on hand cars. Beld, that the deceased was -a trespasser, and the only duty the railroad company owed him was -to exercise reasonable care to avoid injuring him after his presence on the track was discovered: Ward v. Southern Pac. Co. 25 Or. 433, followed; Cederson v. Oregon Nav. Co. 38 Or. 343, 359, cited.</p>

<p>Evidence — Conclusiveness op Memorandum.</p> <p>1. Tlze memorandum Contemplated by Section 692 Of Hill’s Ann. Laws, is one containing the terms of the agreement between the parties, and one that refers to or includes only a part of a transaction is not conclusive to the exclusion of oral testimony.</p> <p>Banks — Advances on Security Note.</p> <p>2. Defendants executed a note to plaintiff, a banker, to secure a present payment and future advances if he should choose to make any. After he had refused to make further advances, defendants deposited certain drafts, which were credited to their account. When one of the drafts was paid, a clerk credited the amount to them, not knowing that it was credited before. On discovering the mistake, plaintiff charged the amount back to defendants, but they checked,against the amount so credited, and plaintiff honored the checks. Reldj in an action on such note, that the amount so-paid on such checks should be considered as advanced under such agreement.</p> <p>Witness Refreshing Memory by Memorandum.</p> <p>3. In an action by a banker to recover advances made to defendants, a clerk who kept the bank books, and knew them to be correct, may refresh his memory, while testifying, by consulting memoranda copied from the books, and carefully compared by him, if after so using it, he is enabled to testify from memory of the original transactions.</p> <p>Harmless Error in Admitting Evidence.</p> <p>4. Error committed in admitting evidence is rendered harmless by subsequently receiving other unobjectionable evidence covering the same point.</p> <p>Trial — Pleadings and Proofs.</p> <p>5. No error is committed in excluding testimony offered in support of issues not made by the pleadings; nor is it error to exclude part of such testimony after having improperly admitted some.</p> <p>Instruction — Estoppel to Object.</p> <p>6. Where defendant has introduced evidence in support of an attempted counterclaim, which is not at issue because of defective pleading, and plaintiff has given evidence in rebuttal thereof, defendants cannot complain of a charge as to the effect of such evidence if found true.</p>

<p>From Polk: Reuben P. Boise, Judge.</p> <p>Bill by Vau B. Sears, executor of the estate of Isaac Ball, deceased, against J. M. Davis and others. From a decree for defendant, plaintiff appeals.</p>

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p> <p>This is an action- by Mark Milos against Peter Covacevich to recover $225 for the breach of a contract to deliver a fishing net. The facts, ■ as disclosed by the pleadings and testimony on behalf of the-plaintiff, are,- in substance, that on March-28, 1898, the plaintiff and defendant had an accounting and settlement as to the balance then diie plaintiff for labor and services theretofore performed for the- defendant, as a result of which it'was orally-agreed that the defendant Should, -in payment of such balance, deed to the plaintiff a certain lot in Portland, of the estimated value of $500, pay him $100 in money upop the happening of a certain contingency, and deliver to -him a fishing net, of the alleged value of $225,-at the close of the fishing season, and plaintiff agreed to receive and accept- such property in full settlement thereof. On March 30 the defendant, in pursuance of this agreement, conveyed to the plaintiff, by warranty deed, the lot referred to, and received a receipt, of which the following is a copy: ■</p> <p>“Portland, Or., March 30, 1898.</p> <p>“Received of Peter Covacevich warranty deed to lot of 50x100 feet on Division and Thirty-second streets, the said conveyance being in full payment of all labor and services rendered by me for the said Covacevich, with the understanding that I am to receive an additional one hundred dollars when the remainder of the four (4) acre tract owned by the said Covaeevich on Division Street is sold.</p> <p>“ [Signed] Mark Milos.</p> <p>“Witness:</p> <p>“J. E. D. Smith.”</p> <p>The defendant refused to deliver the net, and this action was brought to recover its value. At the'’ close of plaintiff’s testimony the defendant moved for a nonsuit on the ground that the contract was within the statute of frauds, and void. The motion was overruled, and plaintiff had judgment, from which the defendant appeals.</p>

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p> <p>This is an injunction suit originally commenced by James B. Montgomery against Geo. W. Shaver and others. Mary Phelps Montgomery, as executrix, was substituted as plaintiff, and a decree entered in her favor, from which defendants Shaver and Ryan appeal.</p>

<p>From Multnomah: John B. Cleeand, Judge.</p> <p>Suit by Julia C. Richardson against Bertrand Orth and others to specifically enforce a contract to will property. Decree passed for defendants, from which plaintiff appeals.</p>

<p>From Lane: James W. Hamilton, Judge.</p> <p>Action for damages by Isaac Carson against E. H. Lauer and another, as administrators, in which there was a judgment for defendants, from which there was an appeal.</p>

<p>Warehouse Receipts as Representing Property.</p> <p>1. Under sections 4201 and 4205, Hill’s Ann. Laws *, regulating the storage of property in warehouses and the issuing of receipts therefor, an indorsement of a warehouse receipt by the person to whom it has been issued, is a transfer of the property itself, so that property stored in a warehouse and represented by a receipt cannot be attached as belonging to the depositor if he has theretofore endorsed his receipt: Anderson v. Portland Flour. M. Co. 37 Or. 483, applied.</p> <p>Attachment oh Goods in Warehouse—Answer oh Garnishee.</p> <p>2. An answer by a warehouseman garnishee that he has in his care certain property stored by the defendant in the writ, for which he has issued negotiable warehouse receipts, is not a statement that such property still belongs to the person who stored it, and if the property is afterwards claimed by genuine transferees of the warehouse receipts, the garnishee will not be liable on his answer, even though the case has proceeded to judgment, and an order has been entered directing the sale of the attached property described in his answer.</p> <p>Gabnishment — Effect of Admitting Indebtedness.</p> <p>3. Where a garnishee by his answer to the writ admits an indebtedness to the attachment or execution debtor, a judgment may be entered that the officer collect such debt out of his property if he refuses to pay it on demand; but no personal judgment can be entered against him: Ba/rr v. Warner, 38 Or. 109, explained as to par. 1, and corrected as to headnote 1.</p>

From Linn: Reuben P. Boise, Judge. The plaintiff, the Pacific States Savings, Loan and Building Association, is a private corporation, organized and having its principal place of business at San Francisco, California. On October 22, 1891, the defendant, J. L. Hill, made written application for membership in the company, and. subscribed for seventy “A” shares of its capital stock.

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Suit by David M. Dunne and others against the Portland Street Railway Company and others. From a decree in favor of complainants, defendants Fred R. Strong, as executor of the estate of Joseph Holladay, and George W. Weidler appeal.</p>

From Linn: George H. Burnett, Judge. Action by tbe Pacific Coast Biscuit Company against G. A. Dugger, to recover the value of sundry goods sold by plaintiff and the Rosenfeld-Smith Company. There was a verdict and judgment for defendant, from which plaintiff appeals.

From Coos. Action by J. T. Nosler, administrator of tbe estate of Matilda E. Nosler, against tbe Coos Bay, Roseburg & Eastern Railroad & Navigation Company. From a judgment in favor of the plaintiff, defendant appeals. A motion to strike out part of tbe record was granted and the judgment affirmed. On. rehearing the order was modified by eliminating the affirmance clause, but subsequently, on a second motion, the judgment was affirmed without an opinion.

From Multnomah: Alfred F. Sears, Jr., Judge. A contempt proceeding having been instituted against F. O. Downing for not obeying an order of court, he was adjudged guilty, and from this order he appeals. Further facts appear in the opinions. A motion to dismiss the appeal was overruled, opinion by Judge 'Wolverton, and the case was heard on its merits and affirmed, opinion by Judge Moore.

<p>Equitable Jurisdiction to restrain Waste.</p> <p>1. Where there is a privity oí estate between the parties the owner oí real property may sue to restrain threatened or partly accomplished waste thereon: Sheridan v. McMullen, 12 Or. 150, and Bishop v. Baisley, 28 Or. 119, applied.</p> <p>Joinder or Parties — Multifariousness.</p> <p>2. Where the owners oí different parcels oí land contract jointly with another concerning their combined property, such owners may join in a suit to restrain waste on the leased ground.</p> <p>Construction of Timber Contract.</p> <p>3. An agreement between tlie owners of land and anotlier recited that the owners sold the other all the saw timber on the land at a certain price per thousand feet, board measure, all scaling to be done at a mill which the other covenanted to erect on the land. The owners covenanted that they would permit the other to enter on the premises for the purpose of erecting a mill and doing anything necessary during the time allowed to cut and saw the timber. It was provided that no less than a certain amount of lumber should be cut each year, and that it should all be removed within ten years, but that the time might be extended for an additional five years. Held* that the contract was not a sale of the saw timber, but a license to erect a mill and manufacture lumber from the saw timber; and hence it was a violation of the agreement for the licensee to remove timber for telegraph poles, though they were scaled at tlie mill.</p>

<p>DivoncE — Titus to Realty.</p> <p>The title to realty cannot be determined in a divorce suit except as it may be incidentally involved — so that, where the case has been dismissed as to the divorce, it cannot be continued as one to obtain a reconveyance of .land.</p>

<p>From Multnomah; Alfred F. Sears, Jr., Judge.</p> <p>Action by the Singer Manufacturing Company against T. J. Driver, the Sheriff of Wasco County. Judgment for defendant, and plaintiff appealed.</p>

From Marion: Geo. H. Burnett, Judge. Action by J. L. Davenport against Fred Dose, commenced in a justice’s court. On appeal to the circuit court judgment of nonsuit was entered on defendant’s motion, from which plaintiff appealed.

From Marion: Geo. H. Burnett, Judge. This is an action on a bond executed by F.R. Anson, as principal, and the Fidelity & Deposit Company of Maryland, as surety. On May 17, 1900, upon the application of Anson, the Common Council of the City of Salem passed an ordinance, granting to him, his successors and assigns, the right to establish and maintain an electric light plant within the city, and to use its streets, alleys, and highways therefor.

From Lian: Reuben P. Boise, Judge. This was a proceeding in the matter of the estate of Frances Slate, deceased, to remove the person who had been appointed administrator in Linn County. Further facts appear in the opinion. From a judgment in favor of the Linn County administrator the petitioner appeals.

<p>From Tillamook: Reuben P. Boise, Judge.</p> <p>This is an appeal from a decree affirming in part an order of the county court settling a guardian’s account. Some time prior to 1891 one Brady Wilson died, leaving a widow and five minor children.- During that year the widow married C. G. Cutting, and he thereafter resided with the family on her homestead in Tillamook County until November, 1897. On October 26, 1895, he was appointed guardian of his stepchildren, aged from eight to fifteen years, and in March, 1896, •received as such guardian from the estate of their grandfather $1,746. On September 8, he filed an account showing the receipt of the money referred to, and an expenditure by him of $104. About a year later he filed another report, in which he stated that he should be charged with an additional sum of $83.97 received on account of his wards, and $47.55 interest, and was entitled to a credit of $152.05 for the expense of a trip to the State of Illinois on business connected with his guardianship and for attorney’s fees while there. This latter acpount, being unsatisfactory to the court, was disallowed, and he was ordered to file an amended account by a certain date. On November 20, 1897, and before the time he was required to appear and file the amended account, Cutting left the state, and never afterwards appeared in court or filed any account of his transactions as guardian or statement of the condition of the funds belonging to his wards, except that in September, 1898, he wrote a letter to the county clerk, in which he undertook to give a statement of his receipts and disbursements This letter was filed with the papers in the ease, but no action was ever had thereon by the county court, nor was it ever treated or regarded in any sense as an account. No account or pretended account filed by the guardian was ever allowed or approved by the county court, except possibly the first one, filed in September, 1896. On May 2, 1899, upon the petition of his bondsmen and Mrs. Cutting, he was removed as guardian, and Mrs. Cutting, the mother of the children, subsequently appointed in his place. On July 6 of that year, Cutting’s bondsmen filed a petition in the county court, alleging, in substance, that he had expended a portion of the funds belonging to his wards for their support, maintenance, and education, and asking that he be credited therewith in the settlement of his accounts. Citation was issued and served on the wards and their mother, with whom they resided. On October 18, 1899, Mrs. Cutting, who had been appointed guardian, petitioned the court for an order approving, as a final account of Cutting, the statement contained in the letter from him. to the county clerk in September, 1898, and at the same time filed an answer to the petition of the; bondsmen theretofore filed. Upon a trial of the issues thus made, the county court found that Cutting’s account should be credited with the sum of $900.20 for money expended by him for the support, maintenance, and education of the wards, and $100 for services as guardian. From this order, one of the wards, who had in the meantime become of age, and the guardian of the others, appealed to the circuit court, where the decree of the county court was affirmed in all particulars, except the allowance for services as guardian. From this decree an appeal has been taken to this court.</p>

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p> <p>Action by Ada Bingham- against Lipman, Wolfe & Company, Isaac N. Lipman, and Adolph. Wolfe. The defendant Lipman, Wolfe & Company is a corporation engaged in conducting a department store in the City of Portland. The defendants Adolph Wolfe and Isaac N. Lipman are, respectively, its vice president ancLsecretary. They are also itsjnanaging agents, and, together with Solomon Lipman and Will Lipman, own all the stock of the corporation. For some time prior to March 30, 1899, the plaintiff was employed by the firm as a clerk in one of its departments. About 5 o’clock in the afternoon of the day .named, defendant Lipman called her into the office and accused her of having embezzled and appropriated to her own use a portion of the money received by her on the sale of some articles belonging to the firm,—especially a corset sold the day before. According to her testimony, she was compelled to remain in the store without food or drink, or an opportunity of seeing or consulting her friends, until twenty-five minutes after 11 o’clock at night, when, in order to obtain her liberty, she was compelled by threats and intimidation to promise to pay to the firm $92.50, — the estimated value of the goods alleged to have been stolen by her. On the next day she called at the store and paid $30 of her own money and $5 which belonged to the firm, but thereafter refused to make any further payment, and a few days later brought this action against the corporation and Lipman and Wolfe individually.</p> <p>The complaint, after setting out the corporate capacity of the defendant Lipman, Wolfe & Company, the official relations of the other defendants thereto, and the employment of the plaintiff, avers, in substance, that the three defendants unlawfully and maliciously conspired together for the purpose of extorting money from the plaintiff, and, to that end, unlawfully to charge her with the crime of larceny in the storehouse of the defendant corporation; that, in pursuance of such conspiracy, she was induced to go to their private office, under the pretext that the managers desired to see and speak to her on business; that they then and there charged her with having committed larceny in the store, and threatened that she would be arrested and publicly charged with the crime, and thereby disgraced and held up to the contempt of the community, unless she admitted her guilt and made restitution for the property alleged to have been stolen; that, notwithstanding such threats, she protested her innocence, and refused to admit that she was guilty of any offense or to turn over any property whatever, whereupon the defendants caused her to be locked up in the store, and to be kept therein from 6 until 11 o’clock, without food or drink, during which time she was not permitted to see any of her friends; that she remained in the store so unlawfully imprisoned during all the time mentioned, and, in order to purchase her freedom, was compelled by the defendants to release her claim to $9 due her for wages, and to promise to pay an additional sum of $92; that the plaintiff was thus maliciously and wantonly deprived of her liberty for about the space of five hours, was accused by the defendants of having committed the crime of larceny, and threatened with tbe disgrace of arrest, and was thereby compelled, in order to be released from her imprisonment, to pay them the money referred to; that the defendants, one and all, knew that plaintiff had committed no crime whatever, and that the conspiracy and all of the acts done thereunder by the defendants were with thé sole intent on them part of extorting money from her; that, by reason of the acts and conduct of the defendants, she has been and is damaged in the sum of $10,000. A motion to strike out the complaint, and also portions thereof, upon the ground that two causes of action, viz., for false imprisonment and extortion, were improperly united, was overruled. A demurrer thereto upon the same ground was also overruled.</p> <p>Defendants answered jointly, denying the material allegations of the complaint, and, for an affirmative defense, alleged that, while the plaintiff was employed by the defendant Lip-man, Wolfe & Company, she embezzled and fraudulently converted to her own use money and property belonging to the firm in the aggregate amounting to $92.75, which she voluntarily and without solicitation on the part of the defendants, or any or either of them, offered to repay, and did, on the thirty-first of March, after the matters set forth in the complaint had occurred, voluntarily and without solicitation on the part of the defendants, pay to the firm the sum of $30. A reply was filed, putting in issue the new matter alleged in the answer.</p> <p>A trial resulted in the following verdict:</p> <p>“Ada Bingham v. Lipman, Wolfe & Co.”</p> <p>We, the jury impaneled to try the above-entitled cause, find for the plaintiff, and assess her damages at $2,000. ’ ’</p> <p>Judgment was thereafter rendered upon this verdict in favor of the plaintiff and against the defendant corporation only, from which it appeals.</p>

<p>Position of One Contbacting With a Receivee.</p> <p>1. Persons making contracts with receivers or bidding at receivers’ sales thereby subject themselves to the jurisdiction of the court that appointed the receiver, and become entitled to notice and a hearing on matters affecting their rights.</p> <p>Right to Annul a Receivee’s Conteact.</p> <p>2. Where a receiver contracts to sell property, and the buyer, with the assent of the receiver and the approval of the court, assigns the contract to a third person who stipulates to carry out all the terms of the contract, the latter becomes a party to the proceeding in which the receiver was appointed, and subjects himself to the jurisdiction of the court, so as to be bound by an order afterwards rendered annulling the contract.</p> <p>CONSTEUCTION OF A CONTEACT OF SALE.</p> <p>3. A contract for the sale of a certain quantity of lumber at a stipulated price per thousand provided that if either party breached the contract it should be void, and for the purpose of estimating the amount due in case of partial performance a certain higher rate per thousand was agreed on. The title of the lumber was to vest in the buyer as fast as paid for. Reid, that though title vested in the buyer as payments were made, and before delivery, it only attached to such a quantity, in case of a breach, as could be secured by the payment of the higher rate agreed on.</p> <p>Default in Compliance With Conteact.</p> <p>4. A receiver, having contracted to sell a certain quantity of lumber, of different grades, at a uniform price; a higher price to be charged in case of partial performance and breach; payments to be made at stated intervals,— cited the buyer to show why the contract should not be annulled for nonpayment of an installment, and the court gave him ten days in which to make the payment. Meld, that the fact that the buyer, before expiration of the ten days, ordered the receiver to deliver the cheaper grade of lumber, which was refused, did not excuse him from his default, and throw the default on the receiver, since, if this were so, the buyer could claim the best quality, as well as the poorest, and secure it at the uniform price, to the extent of the advance payments made by him,'despite his default.</p> <p>Appeal — Poweb to Dieect a Paetioulae Judgment.</p> <p>5. On appeal from a judgment in a law action tried before a judge alone, the supreme court may remand the case with a direction to enter a particular judgment, if all the facts have been found; but if no finding has been made on a material point, the case must go back for a new trial.</p>

From. Multnomah: Alfred F. Sears, Jr., Judge. Action by Henry M. Wagner against tbe City of Portland. From a judgment in favor of tbe plaintiff, tbe defendant appeals. A motion to dismiss tbe appeal was overruled, and the ease was beard on its merits.

<p>Amending Pleadings Before Trial—Discretion.</p> <p>1. Where plaintiff alleged that she was called to her employer’s office, and accused of stealing articles from it's store, and was arrested and confined for several hours, and compelled by threats and intimidation to admit her guilt and pay money, though she was innocent, permitting the plaintiff to strike out the allegation that she had admitted her guilt, after the issues were made up and the case called for trial, was a matter within the discretion of the court, and its ruling will not be disturbed on appeal, unless the discretion is shown to have been abused.</p> <p>Conspiracy—Evidence of Acts of Agents as Res Gestae.</p> <p>2. Where evidence has been received tending to support a charge that defendants procured the arrest of plaintiff in pursuance of a conspiracy to extort money from her, the acts and statements of the defendants and of the officers who made the arrest, done and said in the course of the arrest and resulting detention, are competent as part of the res gestae.</p> <p>Possession of Stolen Property—Felonious Intent.</p> <p>3. In an action of damages for unlawfully charging plaintiff with larceny and causing her arrest on that charge, an instruction that if a skirt worn by plaintiff at the time of her arrest had been stolen, and had afterwards come into the possession of the plaintiff, and she was informed before being arrested that the skirt had been stolen, and she made no offer to return it, she was guilty of a felony, for which she could lawfully be arrested, was properly refused, as it omitted the element of felonious intent. *</p>

From Linn: Reuben P. Boise, Judge. Suit by Peter Schlosser against Emily Beemer to quiet the title to certain land. The facts are stated in the opinion. There was a decree for plaintiff, from which defendant appeals.

From Linn: Geo. H. Burnett, Judge. This is an action by Linn County, a public corporation, to recover from its late treasurer and his sureties the amount of his alleged defalcation. The complaint alleges, in substance, that the defendant P. G-.

From Klamath: Henry L. Benson, Judge. This is a proceeding in The Matter of the Estate of W. H. Mills, Deceased, to remove J. W. Hamakar as administrator. The county court having granted the prayer of the petitioner, the case was removed to the circuit court, with the same result, whereupon the administrator again appealed.

From Multnomah: Alfred F. Sears, Jr., Judge. Action by C. O. Johnson against the Portland Granite & Stone Co. to recover damages for a personal injury. There was a judgment for plaintiff, from which defendant appeals.

From Klamatb: Henry L. Benson, Judge. This is an action upon an administrator’s bond.

From Multnomah: Alfred F. Sears, Jr., John B. Cleland and Melvin C. George, Judges, in joint session. Writ of review by Charles Venable against the Board of Police Commissioners of the City of Portland to determine the validity of his removal from the police force. From a judgment in favor of plaintiff, defendant appeals. The judgment was rendered by Judges Sears and Cleland, Judge George dissenting. •

From Polk: Reuben P. Boise, Judge. This is a proceeding by a writ to review the judgment of a justice’s court, and is on appeal from a judgment of the circuit court dismissing the writ.

From Lane: Jambs W. Hamilton, Judge. In December, 1888, plaintiff, Alice O. Brandt, instituted a suit for divorce against defendant, A. Park Brandt, on tbe ground of cruel and inbuman treatment.

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Suit by C. A. Moore against J. C. Shofner. There was a decree for defendant, from which plaintiff appeals.</p>

From Lima: Reuben P. Boise, Judge. This is a controversy respecting the probate of an alleged will.

From Douglas: Jas. W. Hamilton, Judge. Action by B. B. Sutton against W. B. Clarke and J. L. Baker, partners doing business under the firm name of Clarke & Baker. From a judgment in favor of plaintiff, defendants appeal.

From Multnomah: Arthur L. Frazer, Judge. This is a suit by William Hicinbothem against the Interstate Savings and Loan Association to compel the cancellation of a mortgage on the ground that the amount secured thereby, with legal interest, has been paid, and comes here on appeal from a decree sustaining a demurrer to the answer and granting the relief prayed for.

<p>Mines — Effect of Excessive Location.</p> <p>1. An excessive location of mining ground, made through mistake and in good faith, is void only as to the excess.</p> <p>Mining Location — Locating Excess.</p> <p>2. Where a mining location was greatly in excess of the statutory limit, and the locator, on attempting to sell the same, discovered that there was an excess, and procured a third person to locate a certain part of the original tract in his own name for the purpose of making a conveyance, such action was an assertion* as to where the excess in the original location lay, so that, on its appearing that the location by such third person was void, a subsequent locator was entitled to claim that portion of the original location as excess.</p> <p>Assessment of Damages by the Court — Statutes.</p> <p>3. Under Hill’s Ann. Laws, § 249, subds. 1 and 2, providing that, in an action sounding in tort, when the defendant has failed to answer, the court shall assess the damages (which is by Section 404 made applicable to suits in equity), it is the duty of the court to assess the damages after taking testimony, even though the defendant has answered without denying the allegation as to the amount of damages.</p>

Suit by the United States Investment Corporation, Limited, and Percy H. Blyth, against the Portland Hospital and others to foreclose a mortgage. There was a decree for plaintiffs, from which W. T. Masters, receiver of the hospital, appeals, claiming precedence for the creditors of the receiver over the mortgage of plaintiff that had been given some years before the receivership began. A motion to dismiss the appeal was overruled, and the decree of the 'trial court upheld.

From Clackamas: Thos. A. McBride, Judge. Suit by Chas. B. Moores against Clackamas County to have certain tax-sale certificates canceled, and for such other relief as might be proper. Plaintiff had a decree, and defendant appealed.

From Marion: Geo. H. Burnett, Judge. Action of conversion by Francis Feller against John H. Gates and others commenced in March, 1900, to recover from a constable and the sureties on his official undertaking the •sum of $126.40, alleged to have been received by virtue of his office and converted to his own use.

<p>Trial — Considering Pleadings as Amended.</p> <p>1. Where a party, when certain testimony is objected to, asks leave to amend a pleading to conform to the facts as stated by his witnesses, and the court reserves its ruling but admits the testimony, and decides the point as if the amendment had been allowed, the appellate court will assume that the amendment was in fact allowed and made.</p> <p>Trial — Variance.</p> <p>2. There is not a material variance between an allegation that two makers of a note were severally liable for certain parts thereof, and that each was surety for the other, and proof that the makers were originally liable for the entire sum, but afterward the payee agreed that they should be severally liable for certain parts of the debt, and that each should be liable as surety for the other for the balance, since the real question in both forms of the statement is as to the suretyship.</p> <p>Partnership Note — Dissolution—Effect of Assuming Debts.</p> <p>3. Where a creditor of a partnership, holding a note jointly executed by the partners, has notice that one partner has assumed the firm debts, thus creating the relation of principal and surety between the partners, an extension of the time of payment to the partner assuming the debt, without the consent of the other partner thereto, operates to discharge the latter from all liability.</p> <p>note — Effect of Accepting Interest in Advance.</p> <p>4. The acceptance of interest on a note in advance by a creditor from his principal debtor is an extension of the time of payment, and will release the surety, if made without his consent.</p>

From Clackamas: Thomas A. McBride, Judge. Action on a note by W. G. Randall against Allen Simmons and others. From a judgment in favor of the plaintiffs, the defendants C. H. Sarver and George A. Hamilton appeal.

From Marion: Geo. H. Burnett, Judge. Action by Harriet Patterson against John Patterson and M. L. Chamberlin. From a jugment in favor of defendants entered on the pleadings after a verdict for plaintiff, plaintiff appeals.

From Clatsop : Thomas A. McBride, Judge. Suit by the State of Oregon against J. P. Carlson to annul and vacate letters patent to certain state tide lands. From a judgment in favor of the plaintiff, the defendant appeals.

From Polk: Reuben P. Boise, Judge. This is a proceeding originating in the county court to revoke the probate of the will of R. L. Skinner, deceased, resulting in a decree as prayed for. On appeal to the circuit court the probate was sustained, and now the objector appeals to this court. A motion to dismiss the appeal was overruled, Mr. Chief Justice Bean delivering the opinion, and the case heard in its order. The opinion on the merits was delivered by Mr. Justice Wolverton.

From Harney: Morton D. Clifford, Judge. Suit by Homer B. Mace against F. L. Mace for an injunction. The facts appear in the opinion. There was a decree for plaintiff, and defendant appeals.

From Douglas: James W. Hamilton, Judge. This is a suit by Chas. W. Close to foreclose a mortgage.

From Lincoln; George H. Burnett, Judge. Action by J. C. Altree against Moses Gregson, resulting in a judgment for plaintiff for $40.79 and costs, from which defendant appeals.

<p>Parol Evidence to Explain Whiting.</p> <p>3. Where there is an issue in the pleadings as to whether a certain receipt contains the terms of an agreement between the parties, but the question, like other disputes over facts, must be left to a jury.</p> <p>Interpretation op Receipts.</p> <p>2. A receipt that expresses the terms of a contract cannot be varied by parol, of course, but if it does not express the agreement of the parties, the real facts may be shown; and if the terms are vague or ambiguous, the surrounding circumstances may be reviewed to make clear the situation of the parties.</p>

From Multnomah: John B. Cleland, Judge. Suit by Hiram S. Stone against William M. Ladd, executor, for the specific enforcement of a contract. There was a decree for defendant, from which plaintiff appeals.

<p>From Marion: Reuben P. Boise, Judge.</p>

<p>From Linn: Reuben P. Boise, Judge.</p>

<p>From Multnomah: John B„ Cleland, Judge.</p>