Volume 42 — Oregon Reports

From Columbia: Thomas A. McBride;, Judge. This is a suit by J. O. Hanthorn against James Quinn for the dissolution of an alleged partnership, and for an accounting. The defendant is the owner of fishing grounds and a fishing right on the Columbia River. Prior to 1894 he had operated fish traps thereon, hut they were partly washed out and destroyed by the flood of that year.

From Douglas: James W. Hamilton, Judge. This is an action by John W. Gardner against D. C. McWilliams to recover money. It is alleged in the complaint that plaintiff pastured certain horses and cattle for defendant at his request from September 1, 1900, to March 6, 1901, for Avhich he promised to pay a reasonable sum; that such pasturage was reasonably worth $261.02., no part of which has been paid.

From Morrow: W. R. Ellis, Judge. This action was originally brought by Hugh Fields against the executrix of the estate of William Penland, deceased, to recover $10,306, the value of certain sheep alleged to have been converted by Penland to his own use. After Penland’s death, Fields presented to the executrix for allowance a claim for the value of the sheep in question, in the following form: In the County Court of Morrow County, State of Oregon.

From Yamhill: George EL Burnett, Judge. This is an action by Edgar Poppleton against George W. Jones and F. G. Adams to recover money.

From Marion: George H. Burnett, Judge. Action by the state against George W. Davis and others on an official bond. From a judgment for defendants, plaintiff appeals.

<p>City Council — Mayor—Tie Vote.,*</p> <p>Under charter provisions providing that a city council shall appoint certain officers with the consent of the mayor, that the latter shall give the casting vote in case of a tie in the council, and that the government of the city shall be vested in a mayor and a common council, the mayor has a right to vote on the nomination of such officers where the vote of the council is evenly divided.</p>

From Multnomah: Arthur Ij. Frazer, Judge. This is a suit by John B. Frost and wife against the Pacific States Savings, Loan & Building Co. to compel the cancellation of a mortgage on the ground that the amount secured thereby has been fully paid. The defendant is a California corporation, organized for the purpose and with the power of conducting the business of a building and loan association.

From Lake: Henry L. Benson, Judge. This is a suit by Cynthia I. and W. H. McCall against James C. and Josiah Porter to restrain the defendants from interfering with the flow of water through what the plaintiffs designate as the eastern or McCall branch of Buck Creek, a natural water course, heading in a spur of the Yampsay Mountains., and flowing in a northerly and easterly direction through Silver Lake Valley, in Lake County.

From Multnomah: Alfred F. Sears, Jr., Judge. This is a suit by Maud M. Stringham against Lama Dillon and the Modern Woodmen of America to determine the right of adverse claimants to a sum of money due on account of a certificate of mutual life insurance.

From Multnomah: Arthur L. Frazer, Judge. This is a suit by Flora Hubert and husband against the Washington National Building, Loan & Investment Association to cancel a mortgage.

<p>From Jackson: Henry L. Benson, Judge.</p> <p>Tbis is a suit by Peter Britt and others against C. D: Reed, to restrain the defendant from diverting or. using any of the waters of Jackson Creek, or either of its branches, when such use will interfere with plaintiffs’ right to take and use five inches thereof through a ditch owned by them. The facts are that in 1853 the grantors and predecessors in interest of the plaintiffs constructed a ditch from a point on Jackson Creek, a short distance below where it forks, down to and upon the several tracts of land in the City of Jacksonville now owned and occupied by the respective plaintiffs, at which time five inches of water, or more, were diverted therefrom through such ditch, and used for domestic and irrigating purposes. This ditch has ever since been maintained and used by the plaintiffs and their predecessors in interest, and the water diverted and applied by them, affording the only water supply to their premises. In 1878 the defendant settled upon a forty-acre tract a short distance above the head of the plaintiffs’ ditch, as a homestead, to which he acquired title by patent from the national government in March, 1883. The bed and banks of the creek for a space of five or six rods in width have long since been mined out down to the bed rock, from a point below the head of plaintiffs ’ ditch up to and above the land owned and occupied by the defendant, leaving loose tailings or mining debris therein to a depth of five or six feet. In the summer season there is but little water flowing in the stream, and that sinks down through the tailings and flows on the bed rock. About the year 1883 the plaintiffs constructed a covered bed rock drain, from four to six inches deep and twelve to fifteen inches wide, running from the head of their ditch diagonally across the bed of the stream, for the purpose of gathering and diverting the water thereto. Some time prior to 1880 one Poppewitz made a garden on the land now owned by the defendant, which he cultivated from year to year, using the water of Jackson Creek for its irrigation, until 1886, since which time the defendant has continued such cultivation and use of the water. Such use, however, was not knowm to the plaintiffs until the summer of 1899, when, being short of water, they made an examination of the stream for some distance above the head of -their ditch, to ascertain the cause,, and for the first time learned that the water was being used by the defendant. In 1900 this suit was commenced to enjoin and restrain him from using the water to the detriment of the plaintiffs’ rights, and, it resulting in a decree in their favor, the defendant appeals. '</p>

From Marion: Reuben P. Boise, Judge. Suit for an injunction by tbe Salem Flouring Mills Company against William P. Lord, Governor of Oregon, and other state officers and agents.

From Marion: Reuben P. Boise, Judge. - Suit by W. J. Irwin against the Washington National Building, Loan and Investment Association to secure the cancellation of a mortgage, in which plaintiff had a decree, and defendant appeals.

<p>From Jackson: Hiero K. Hanna, Judge.</p> <p>This is a suit by John and Maria Hurning against Jacob "Walz, to regulate the flow of surplus water from defendant’s land to that of plaintiffs. It is alleged in the complaint, in substance, that plaintiffs own about eighty-three acres of land in Jackson County, and that defendant owns a tract immediately south of, but separated from, theirs by a public road; that there are several springs on his land, the waters from which and the rainfall have, from time immemorial, floived in a swale to and across plaintiffs’ land, entering it about forty rods west of the southeast corner; that for more than ten years defendant has diverted water from said swale, and used it in irrigating his land, and prior to 1898 discharged the surplus into said highway at a point about twenty rods east of the southwest corner of their land, across which it flows in a swale, except in the rainy season, when not needed for irrigation, it flows on the east side of their premises; that in 1895 plaintiffs constructed a ditch from near the southwest corner of their land to carry off the surplus water, and prevent it from injuring their premises; that the soil along the line thereof is of such a character that, unless water constantly flows, the ditch becomes dry, and cracks, permitting the water, when its flow is resumed, to percolate, and injure their land; that since 1898 defendant has, in irrigating seasons, discharged the surplus from his ditches at regular intervals, the interruptions in the flow of which have ruined their ditch, and the resumption has prevented them from plowing, cultivating, or raising crops on about five acres of land, which, without such inundation, would have been very productive; that during the last two years defendant has discharged large quantities of water from one of his ditches upon said highway at a point about ten rods from plaintiffs’ southeast corner, across which it has flowed in an unusual place, to their irreparable injury; that, if said surplus were continually discharged at one place, plaintiffs could control it so as to cause them little damage; that during the last three years defendant has discharged surplus water at various places upon their land, and, claiming the right to do so, he threatens to continue such trespass at irregular intervals, and at such places as may suit his fancy, and, unless prevented by an order of the court, he will carry his menace into effect. The answer denies the material allegations of the complaint, and avers that defendant has for more than thirty years conducted the water flowing from a spring on his premises, and used it in irrigating his land; that such part of the water as was not necessary for that purpose has for more than twenty-five years flowed in a ditch to plaintiffs’ land, which it enters near the southwest corner; that at times during each year the entire quantity of water from said spring is needed to irrigate his land, thereby preventing any flow to plaintiffs’ premises, in consequence of which their ditch becomes dry and cracks; that defendant’s and plaintiffs’ lands slope toward the north, and in the rainy season surface water necessarily flows from his land upon theirs, but the injury of which they complain is not caused by any wrongful act on his part. A reply having been filed, denying the allegations of new matter in the answer, a trial was had, resulting in a decree dismissing the suit, and plaintiffs appeal.</p>

<p>From Multnomah: Melvin C. George, Judge.</p> <p>Action by Leander Lewis against J. E. Blackburn. Judgment for plaintiff, and defendant appeals.</p>

From Linn: Beuben P. Boise, Judge. Suit by sundry depositors of wheat in the warehouses of the late T. J. Black against two flouring companies, ah exporting firm, and the administrator of Mr. Black’s estate, for an accounting as to the wheat deposited, and which had been sold.

<p>From Multnomah: John B. Cleland, Alfred F. Sears, Jr., and Melvin C. George, Judges, in joint session.</p> <p>Suit by Ellis G. Hughes against Charles E. Ladd and another. Prom a decree for defendants, plaintiff appeals.</p>

<p>From Multnomah.: Alfred F. Sears, Jr., John B. Cleland and Melvin G. George, Judges, in joint session.</p> <p>This is a suit by J. Thorburn Ross, trustee, against the City of-Portland, to enjoin the enforcement of and collection of certain taxes, which, are claimed to be clouds on the title to certain real property. The complaint alleges, in effect, that the defendant is a municipality; that plaintiff is the owner and in possession of certain lots situate therein, which, during the years 1891, 1892, and 1893, and prior thereto, were owned by and in possession of one P. A. Marquam, plaintiff’s predecessor in title; that Marquam and wife, on May 21, 1888, May 30, 1889, and June 24,1890, executed and delivered to the German Savings & Loan Society three mortgages upon the property to secure $55,000, $50,000, and $15,000, respectively, which were duly recorded, and constituted liens thereon; that all of said mortgages were on the thirteenth day of February, 1891, discharged, and duly satisfied of record; that on the seventh day of February, 1891, Marquam and wife executed and delivered to one James Phelan a mortgage upon said property to secure the sum of $125,000, which, being duly recorded, became a lien thereon; that for the year 1891 the three mortgages given to the German Savings & Loan Society were assessed by the city auditor, and a tax levied upon them in the aggregate sum of $675, and for the year 1893 the Phelan mortgage was assessed by the same officer, and a tax levied thereon in the sum of $1,250, and that no part of said taxes has ever been paid. It is further alleged, in general terms, that the act of the. legislative assembly of 1882, approved October 26th of that year, commonly known as the “Mortgage Tax Law,” was unconstitutional and void, as in contravention of the Fourteenth Amendment to the Constitution of the United States; that the defendant claims a lien upon the property by virtue of said assessments, and that such claim constitutes a cloud upon plaintiff’s title; wherefore it is prayed that the defendant be enjoined from attempting to enforce such levies against plaintiff’s said property. To this complaint a general demurrer was interposed, assigning, among other reasons therefor,' that the complaint does not state facts sufficient to constitute a cause of suit, and, being sustained, a decree was entered dismissing the suit, and plaintiff appeals.</p>

From Multnomah: Arthur L. Frazer, Judge. This is an appeal from an order quashing a writ of execution issued on a judgment rendered in favor of the plaintiffs J. Leve and J. Adler, partners doing business as Leve & Adler, and against the defendant Frazier, sheriff, in an action to recover possession of a certain miscellaneous lot of junk, divided by the complaint into thirty-six separate lots, and described as “ 65 tons of cast iron, of the value of $1,235; 4,500 lbs. of…

From Harney: Morton D. Clifford!, Judge. This is a suit by Newt. Hoover against Alice L. Bartlett and her husband to set aside a judgment.

From Jackson: Hiero K. Hanna, Judge. This is an action at law by Nancy Carter against Miles S. Wakeman to recover damages resulting from the alleged obstruction of an easement claimed by plaintiff. The complaint is lengthy and prolix, and we give it in substance, condensing it as much as possible without obscuring the sense.

From Multnomah: John B. Cleland, Judge. This is an action by Stephen Williamson and. others, doing business under the firm name of Balfour, Guthrie & Go., against the North Pacific Lumber Company for reclamation on lumber purchased by the plaintiffs, a Portland firm, from the defendant, an Oregon corporation, for shipment to the west coast of South America, on the joint account of themselves and Williamson, Balfour & Co., of Yalparaiso.

From Jackson: Hiero K. Hanna, Judge. William Deneff, as tbe administrator of tbe estate of Edward Graupner, deceased, instituted this action against H. V. Helms to recover the sum of $2,200, which, it is alleged, he converted to his own use.

From Lane: James W. Hamilton, Judge. This is a suit by H. M. Milliorn and thirty-seven other depositors of wheat in a warehouse at Junction City, Oregon, operated by Robert Clow, now deceased, against Caroline Clow, as administratrix of his estate, and fifteen others, to secure a 2?ro rata distribution of a fund arising from the sale of certain wheat, and to compel the defendants Balfour, Guthrie & Co. to pay the value of certain other wheat received by them.

Prom Benton: George H. Burnett, Judge. Pinal accounting of J. L. Akin, executor of the estate of Peter W. Mason and another. From a decree disallowing certain items, the executor appeals, and M. B. Davisson and another, creditors of the estate, appear as respondents.

From Marion: Reuben P. Boise, Judge. This is a special proceeding instituted by C. H. Robertson against T. T. Geer, as Governor, Charles S. Moore, as Treasurer, and F. I. Dunbar, as Secretary of State, of the State of Oregon, constituting, by virtue of their respective offices; .the State Land Board, to compel them to accept plaintiff’s application to purchase certain alleged school land!of the State of Oregon and to issue to him a certificate of sale therefor, or to show…

From Multnomah: Arthur L. Frazer, Judge. • This is a suit by the United States Mortgage and Trust Company to foreclose a mortgage.

From Curry: James W. Hamilton, Judge. This is a suit by B. D. Hume against Jesse Turner, as sheriff of Curry County, and others, from an injunction, instituted 'August 2, 1898.

From Union: Robert Eakin, Judge. This is an action by R. D. Ruckman against 'William Ormond to recover the sum of $175 for the use of an engine and boiler.

From Marion: Reuben P. Boise, Judge. On November 14, 1895, tbe Williams & England Banking Company, a corporation engaged in a general banking business at Salem, in this state, suspended payment, and in a suit brought for that purpose a receiver was appointed, with power to convert its assets into cash for the payment of its obligations, and to wind up its affairs.

<p>From Marion: Reuben P. Boise, Judge.</p> <p>Suit by Elizabeth Gist against Oscar Doke. From a decree for defendant plaintiff appeals.</p>

From Union: Robert Bakin, Judge. This is an action by R. D. Ruckman against the Imbler Lumber Company for $600, the alleged reasonable value of the use of an engine and boiler for one year from November 10, 1899, and tbe sum of $250 as damages for injuries thereto.

From Marion: Reuben P. Boise, Judge. This is a suit by H. Trinwith against Don A. Smith to settle a disputed boundary.

<p>Construction op Oral Indefinite Contract.</p> <p>Where a contract was not originally in writing, and the terms of the oral agreement were imperfect and indefinite, the real contract must be largely inferred, as a question of fact, from the subsequent course of dealing.</p>

<p>Incomplete Pleading Cured by Verdict.</p> <p>1. Verdicts many times cure formal defects in pleading, where the omission is not on a vital point; for instance, an objection that, a complaint in an action to recover borrowed money does not contain an allegation that defendant agreed to repay the money loaned is cured by a verdict for plaintiff.</p> <p>Agency — Contract for Unknown Principal.</p> <p>2. A contract made by an agent for an undisclosed principal is the contract of such principal and may be so sued on; thus, a principal whose money has been loaned by an agent in his own name* may maintain. an action therefor against the borrower, even though the latter aid not know of the agency when the money was borrowed.</p> <p>Pleading — Teem “Administeateix” as Desceiptio Peesonae.</p> <p>3. A designation of a party to a contract as “widow,” or “administratrix,” or the like, is not conclusive as to the capacity in which the person was acting; it is usually considered merely descriptive, but, in connection with other circumstances, should be considered in determining the intention of the parties.</p> <p>Pleading — Vaeiance.</p> <p>4. In a case where it is admitted that the events charged in the complaint actually occurred, and the parties differ only as to the capacities in which they were acting, the date of the occurrence is not material, and a difference between the date charged and proved is not a variance.</p>

<p>From Umatilla: W. R. Ellis, Judge.</p> <p>This is au action by the First National Bank of Walla Walla against D. McDonald to recover the possession of a strip of land in section 28, township 5 north, range 35 east, in Umatilla County, Oregon, involving a question of boundary between the southeast and southwest quarters of that section. It is alleged in the complaint that plaintiff is a corporation, and the owner and entitled to the possession of the disputed premises, particularly describing them; and that defendant is, and has been since April 21, 1898, in unlawful possession thereof. The answer denies the material allegations of the complaint, and alleges that,' for more than ten years prior to the commencet ment of the action, defendant and his predecessors in interest have been in the open, notorious, exclusive, continuous, and adverse possession of the whole of the disputed tract, claiming the same as the owner thereof, and was, and for a long time prior thereto had been, the owner of the whole thereof. For a further defense it is averred, in substance, that plaintiff ought not to be permitted to allege that it is the owner or entitled to the possession of the land described in the complaint, for that in 1885 one Alex. Walker, from whom it claims to derive title to said premises, was the owner of the said southeast quarter, and in possession of the disputed tract, and one L. Hutchinson was the owner of the southwest quarter-, that, the boundary between their respective lands being indefinite, uncertain, unascertained, and in dispute, Hutchinson, in the fall of 1885, caused a survey of said lands to be made, to determine the location of said boundary, and "Walker was present when the survey was made, had knowledge thereof, and acquiesced therein; that by said survey it was ascertained that the quarter post on the south side of said section was east of the fence then erected to mark what was supposed to be the division line; that thereafter, and in accordance with said survey, Walker and Hutchinson removed said fence, and rebuilt it on the boundary as ascertained by such survey, where it has ever since remained and has been maintained by Walker and Hutchinson and their successors in interest in said premises, including this defendant, who, ever since the removal of said fence, has been in the possession of the whole of the demanded premises, claiming to be, and now is, the owner thereof; that plaintiff claims to derive its title to said premises from Walker, and that by reason of the facts hereinbefore stated it should be estopped from claiming any part thereof. The reply, having denied most of the material allegations of new matter in the answer, averred, in substance, that at the time said survey was made it was agreed by and between Walker and Hutchinson that the partition fence should be moved from where it then stood to the line of said survey, upon condition, however, that, if it should be discovered not to be the true boundary between said quarter sections, the fence should be removed to the true boundary; that on March 31, 1899, said true boundary was established on the line described in the complaint; and that Hutchinson never at any time repudiated said agreement. A trial being had upon the issues thus outlined, a verdict was returned for defendant, and judgment having been rendered thereon, dismissing the action, plaintiff appeals.</p>

<p>From Malheur: Morton D. Clifford, Judge.</p> <p>Contempt proceedings by the State, on tbe relation of A. ~W. Turner against G. C. Gray. From a judgment adjudging defendant guilty of contempt, be appeals.</p>

From Malbeur: Morton D. Clifford, Judge. Suit by I. H. Adams against J. M. Church and others for an injunction. There was a decree for defendants, and plaintiff appeals.

<p>Pasos Evidence to Explain Indefinite Agreement.</p> <p>1. Where a written agreement is indefinite or uncertain, parol evidence may be received to explain the meaning of the parties, as witness this ease: Plaintiff shipped to defendant in 1899 several car loads of sugar beets in cars belonging to three different roads, which defendant agreed to purchase at a stipulated price per ton. After the beets had been received and weighed, it was ascertained that the weights were incorrect, whereupon it was agreed that three specified ears, one from each road, should be loaded the next season by the plaintiff “in the same manner as the cars were loaded in 1899, viz., loaded full, with the sides built up with rows of beets, and rounded off as full as the cars will hold,” and that these cars should form a basis of settlement for the beets previously shipped. Held, that the stipulation was indefinite and uncertain as to how the test ears were loaded the preceding year, and parol evidence was admissible to show how they had been actually loaded.</p> <p>Entire and Severable Contracts.</p> <p>2. Whether a contract is severable or entire is a question of construction, depending upon the subject-matter and the language used by the parties to express their ideas ; as applied to this case, where a seller, who was disputing with his purchaser over the loads of certain ears that had been delivered, agreed to receive three specified cars, each of which represented a class of cars theretofore delivered, and to load them as the cars in dispute • had been loaded, and that the weights of such ears should be treated respectively as the weights of the cars in dispute, the agreement was severable, and the seller’s refusal to accept and load one of the test cars did not preclude him irom recovering a balance due on the cars of the classes other than that represented by the car refused.</p>

<p>From Union: Robert Bakin, Judge.</p> <p>This action was commenced May 20, 1901, by M. S. Crossen against William Grandy to recover damages for alleged injuries to real property occasioned by backwater. The complaint alleges “that in the year 1897 the plaintiff, together with other lands, leased from Jacob Newman, the owner in fee of the S. E. % of the S. E. ]4 of section 26, township 3 south of range 38 E., W. M., for the term of five years, which said lease by its terms included the five years commencing with the year 1897, up to and including the year 1901; ’ ’ that, under and by virtue of the terms of such lease, plaintiff has ever since occupied and made an effort to use “said land for raising grain;” that it was valuable for that purpose, and the use thereof reasonably worth the sum of $5 an acre per year; that Ladd Creek, a natural stream of water, flows near by and adjacent thereto, and that, at all the times alleged in the complaint, defendant was and is in possession and the reputed owner of lands on Ladd Creek, below “the 34 acres of land hereinbefore described, and leased by plaintiff as alleged; ’ ’ that in 1898 the defendant constructed a dam across such stream on his land, which he has ever since maintained, thereby during the spring of the years 1898, 1899, 1900, and 1901 causing the waters thereof to flow back upon, overflow, and percolate “the said 34 acres of land leased and possessed by plaintiff as hereinbefore alleged, ’ ’ rendering it unfit for cultivation and valueless to the plaintiff; “that at the time this plaintiff leased such land, in 1897, as hereinbefore.alleged,” thirty-four of the forty acres described were overgrown with weeds and worthless grass and unfit for cultivation; that plaintiff was compelled to, and did break up, plow, and prepare the same for cultivation, at an expense of $3 an acre; that the reasonable yearly rental value of the land was $5 an acre; that, by reason of the overflow caused by defendant’s dam, the plaintiff was unable to profitably use the same during the year 1898, and was therefore damaged in the sum of $102, the cost of plowing, and $170 as rental value, amounting in the aggregate to $272; that in 1899 plaintiff leased the land to one Porter, but on account of the defendant’s dam it was again inundated and overflowed, and he was compelled to, and did, pay Porter $50 on account thereof, and was damaged in that amount; that in 1900 he again prepared the ground for cultivation, at a cost of $51, but was unable to use it on account of the overflow caused by defendant’s dam, and was thereby damaged in the sum of $5 an acre, the reasonable rental value of the property, in addition to the cost of preparing it for cultivation, amounting in the aggregate to $221; that in the spring of 1901 he again plowed and prepared the same for cultivation, at a cost of $51, but was prevented from using it by the overflow, and was damaged for that year in the sum of $221. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action was overruled, and defendant answered, denying all the material allegations of the complaint. Upon the issues joined, a trial was had, resulting in a verdict and judgment in favor of the plaintiff for $100, and defendant appeals.</p>

<p>From Douglas: James W. Hamilton, Judge.</p> <p>This is an action by F. B. Waite, the executor of the last will and testament of Fendal Sutherlin, deceased, against William It. Willis. Among other things, it is alleged by the complaint “that on or about the 18th day of September, 1901, the above named defendant, W. R. Willis, received and had for the use and benefit of plaintiff, from---Crouch, the sum of $334.05, in lawful money of the United States. ’ ’ Then follow allegations of demand, the refusal to deliver, etc., and a prayer for judgment for the sum named. To this the defendant answered that he is an attorney duly admitted to practice; that he was on the 3d day of September, 1901, employed and retained by plaintiff as executor of the estate of Fendal Sutherlin, deceased, as attorney to conduct said estate to final settlement ; that the money alleg’ed to have been received by defendant was collected by him in the course of his employment; and that a final settlement of the estate has not been effected, — and prays the dismissal of the action. A general demurrer to this answer having been sustained, a demurrer was interposed to the complaint and overruled; and, judgment being rendered in plaintiff’s favor, the defendant appeals.</p>

<p>From Jackson: Hiero K. Hanna, Judge.</p> <p>Suit by B. W. Dean and others against Ralph Dean and wife to set aside a deed, in which plaintiffs failed and appealed.</p>

<p>MORTGAGE U’ORECLOSURE — DEFECT ON L/IEN HOLDERS WHO ARE ¿'ARTIES.*</p> <p>A mortgage foreclosure decree under B. & C. Comp. §§ 423, 427, concludes all parties .to the case as to all rights asserted therein, and merges them into the decree. Thereafter any right asserted in such foreclosure case can be enforced only through the decree therein. The effect of this is to prevent a judgment lien creditor from issuing an execution on a judgment that he has pleaded and had recognized in a suit foreclosing a prior mortgage, and thereunder selling the mortgaged land after it has been redeemed by a grantee of the mortgagor who purchased subsequent to the rendition of the decree.</p> <p>The following is an application of the foregoing rule to this case: The owner of mortgaged premises conveyed them to a third party, who did not at once record his deed. Thereafter the mortgage was foreclosed and the property sold under the decree, and in this suit the owner of a judgment appeared as a defendant, and procured an adjudication that the proceeds of the sale, after satisfying prior Hens, should be applied to the payment of his judgment. Afterward the purchaser of the land recorded his deed and redeemed the premises. Subsequently the judgment lien creditor, the property not having sold for enough to satisfy his claim, issued execution and levied it on the land. Beld, that the purchaser is to be considered as such only from the time that he recorded his deed; and that the judgment creditor’s rights under his original judgment became merged into the foreclosure decree, and were exhausted by the sale thereunder as to the property sold, and that the execution should be recalled.</p>

From Jackson: Hiero K. Hanna, Judge. Suit by Winchester & Main against tbe widow and children of George W. Hoover to determine ah adverse interest in realty, and the principal question is the meaning of the will left by deceased. Plaintiffs had a decree from which defendants appeal.

From Multnomah: Melvin C. George, Judge. Action by F. L. Quatsoe and another, partners as the Manufacturers’ Advertising Company, against W. H. Eggleston, on the following written contract, entered into between the plaintiffs and the defendant on May 29, 1901: “To further advertise the Walworth pianos, manufactured by the M. Schulz Co-., of Chicago, Ill., we, Quatsoe Bros., doing business as the Manufacturers’ Advertising Co., of Chicago, Ill., hereinafter called the first…

<p>Form of Certificate Reouieed to Bill of Exceptions.</p> <p>1. The statutes of Oregon do not provide or require any special form of certificate to a bill of exceptions, but it must be signed by the trial judge.</p> <p>Effect of Signing Bill of Exceptions.</p> <p>2. The signing of a bill of exceptions by a trial judge is in effect a certifying that every material statement therein preceding his signature is true, except as otherwise stated.</p> <p>Sufficiency of Exceptions to Instructions.</p> <p>3. A general or lump exception to several instructions given or refused is not an exception at all, if any one of the instructions objected to is correct, or any one of those refused is unsound.</p> <p>Effect of a Special Certificate.</p> <p>4. A statement in the certificate to a bill of exceptions, that no means had been furnished the trial judge to compare the evidence as set out in the bill of exceptions with the evidence as taken by the stenographer, is a mere recital of a fact, and not a statement that the evidence set out is incorrect.</p> <p>Amending Pleading — Surprise.</p> <p>5. Where several months elapse between the time of allowing amendments to a pleading and the date of the trial, the objection of surprise will not usually be available.</p> <p>Amending Pleadings Before Trial — Omitting Name of Partner.</p> <p>6. Under B. & C. Comp. § 102, which provides that the court may at any time before a cause is submitted allow the pleadings to be amended by striking out the name of any party or correcting a mistake in the name of a party, or a mistake in any other respect, or, when the amendment does not substantially change the cause of action or defense, by conforming the pleading to the facts proved, it is within the power of the trial court to allow a complaint to be amended before trial by striking out the name of one of the parties, and all averments as to a partnership between the plaintiffs, leaving the case to proceed with one of the original parties as plaintiff.</p> <p>Beal Estate Broker — Bight to Commission.</p> <p>7. An agent who is employed to sell property under an agreement that if he finds a purchaser he shall be paid a certain sum, is entitled to his commission when he produces to the seller a purchaser who is ready, able, and willing to take the property on the terms offered, though no sale is consummated owing to the owner’s refusal to sell.</p> <p>Effect of Option by Seller to Another Purchaser.</p> <p>8. If an owner who has given a broker an agreement to pay him a sum for producing a purchaser, sells the property himself before the purchaser is produced, the broker is.not entitled to a commission, but the owner must have either sold or made a valid contract to sell to relieve him from liability to the broker.</p>

<p>From Linu: George H. Burnett,, Judge.</p> <p>Action by G. F. Luckey, as administrator of tbe estate of L. A. S. Luckey, deceased, against Lincoln County. From an order retaxing costs, defendant appeals.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. This is an action by Ida M. Duntley, administratrix, against Inman, Poulsen & Co., a corporation, to recover damages for the death of Marcus H. Duntley, plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. Duntley, at the time of his death, and for two or three years prior thereto, had been employed by the defendant, running one of its planers.

From Multnomah: Alfred F. Sears, Jr., Arthur L. Frazer and Melvin C. George, Judges, in joint session. This is a proceeding by Roy Holman, acting through his guardian ad litem, to revoke the probate of the will of his father, John W. Holman, deceased. The probate was sustained by William M. Cake, County Judge, but set aside on appeal to the circuit court, where the judgment was rendered by Judges Sears and Frazer, Judge George dissenting.

From Multnomah: Melvin C. George, Judge. This is an action by Dean Cox, a minor, by J. P. Finley, her next friend, against the Royal Tribe of Joseph to recover upon a beneficiary certificate for $2,000, issued by the defendant to Capitola Blanche Cox, a married woman, in favor of the plaintiff, her daughter.

<p>From Multnomah: At,feed F. Sears, Jr., Judge. '</p> <p>This is an action by J. E. Cullison to recover money. It is alleged in the complaint that the defendants, F. O: Downing and F. H. Hopkins, are partners, and during the time stated were engaged as such in the grain and stock brokerage business ; that from March 25, 1896, to April 24, 1897, plaintiff, at their request, performed service for them, for which they agreed to pay him $60 a month and 10 per cent of the gross earnings of their business, which, during the time, were $105,-000; that his share thereof, and the wages agreed upon amount to $11,280, but he has received thereon only $2,892, and that there is due him $8,388, for which judgment is demanded. The answer denies the material allegations of the complaint, and for a separate defense avers that the total commissions accruing to defendants by reason of their business during the time alleged was only $24,547.70,10 per cent of which and the stipulated wages were paid to and accepted by plaintiff in full satisfaction of his services. For a further defense it is alleged that during each month while plaintiff was so employed he, with knowledge of all the facts relating thereto, presented to them statements showing the wages and percentage due him, setting out said sums, and that in pursuance thereof they were paid to and accepted by him in full satisfaction of said awards and settlements. The reply, having put in issue the allegations of new matter in the answer, averred that the statements so rendered were based upon incorrect information, knowingly and falsely furnished by defendants to plaintiff, who had no knowledge of their falsity, or means of ascertaining the same, as defendants well knew; and that," relying thereon, he, at their request, rendered said bills, which subsequent information has shown to be false. The cause, upon defendant’s motion, supported by Downing’s affidavit that the trial would require the examination of long and complicated accounts necessitating an examination of their books, was referred to Raleigh Stott to take the testimony and report his findings of fact and of law therefrom. At the trial before the referee the defendants, claiming that an examination of their books might tend to incriminate them, refused to offer them in evidence, though required to do so. The referee found in favor of plaintiff, but his report was set aside, and the cause re-referred to S. C. Spencer, who, upon examination of the testimony so taken, made findings of fact and concluded that there was due plaintiff from defendants the sum of $8,388, and from the judgment against them therefor they appeal.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. Suit by T. A. Garbade, J. H. Woodward and C. C. Palmer against William Frazier, sheriff, the Larch Mountain Investment Co. and the Bridal Yeil Lumbering Co., to impeach a decree. A decree was passed for defendants on a demurrer to the complaint, and plaintiffs appeal.

<p>From Marion: George H. Burnett, Judge.</p> <p>This is an action by W. H. Wehrung and others, constituting the State Board of Agriculture of the State of Oregon, against E. T. Denham and others upon a bond given for the faithful performance, on the part of the principal, of a contract for the construction of certain buildings and the repairing of othérs, entered into with plaintiff. The Legislative Assembly of the State of Oregon, at its biennial session in 1901, appropriated for the use of plaintiff on the state fair grounds the following sums of money, namely: For the improvement of machinery hall, $585.50; for the construction of a creamery building, $707.50; for the construction of a farm cottage, $695.75; and for addition and improvements to pavilion, $3,407.75. On May 6, 1901, in pursuance of the powers conferred upon it by the -legislature, and for the purpose of carrying into effect the object of said appropriations, the board entered into the contract referred to with Denham, which provides that he will, “for the consideration hereinafter mentioned,” and before August 1, 1901, erect and finish “the several buildings hereby agreed to be erected at fair grounds, Marion County, Oregon, provided that the said cottage be completed by June 15, 1901,” conformable to certain drawings and specifications, to the satisfaction of W. D. Pugh, the architect, to be testified to by a writing or certificate under the hand of the said Pugh, and also provide such materials as are called for and required by such drawings and specifications for the erection and completion of said buildings and other work on buildings mentioned therein, “for the sum of four thousand six hundred and seventy-eight 50-100 dollars,” and which, upon the other hand, provides that the State Board of Agriculture shall and will, in consideration of the covenants and agreements on the part of Denham being strictly performed, well and truly pay or cause to be paid to him or his assigns the said sum of $4,678.50, in manner following: “Semimonthly payments to be made seventy-five (75) per cent of labor performed and material used. The balance, twenty-five (25) per cent of the total contract price, to be made thirty-three (33) days after the buildings are completely finished and delivered and accepted by the architect and the party of the first part (the board), unless some defect shall meanwhile have been discovered in the said work,” provided that in each case a certificate signed by the architect be obtained, stating that the work for which said payment is to be made is well done and that such payment is due. It is further stipulated that should the contractor, during the progress of said work, refuse or neglect to supply a sufficiency of materials or workmen, the board should have the authority to provide materials and workmen, after giving three days’ notice in writing, and that the expenses thereof should be deducted from the contract price, and “that the total sum hereinbefore expressed, to wit, the sum of $4,678.50, shall be so segregated and divided in the payment thereof as to require the sum of $585.50 for the machinery hall; $707.50 for creamery building; $695.75 for farm cottage; $2,689.75, addition to pavilion. ’ ’ The bond sued on was executed by Denham as principal with J. C. Goodale and F. P. Talkington as sureties, and is conditioned for the faithful performance of this contract on the part of Denham.</p> <p>It is admitted, as we understand it, by the failure of plaintiff to deny certain affirmative allegations contained in the answer, that Denham entered upon the performance of the contract, and proceeded therewith until about July 10, 1901, during which time he completed, according to agreement, the farm cottage and improvements to machinery hall, and also furnished labor and materials, which he employed and used in the construction of the creamery building and the addition and improvements to the pavilion; that plaintiff paid Denham, on June 24, 1901, $286.50, being for 75 per cent of the labor performed and materials furnished up to June 22d in the eonstruetion of machinery hall, and on July 9, 1901, made a final payment of $299, the building having been completed the day previous, aggregating the full sum of $585.50; that plaintiff paid Denham, on June 10, 1901, $401.67, being for 75 per cent of the labor and materials furnished in the construction of the farm cottage to June 1st, and subsequently made a payment of $165, and a further and final payment of $129.08 on July 9, 1901, the day after the completion of said cottage, and that, on said July 9th, and prior thereto, plaintiff paid Denham the full 75 per cent of the value of all labor and materials furnished in the construction of the creamery building and the improvements on the pavilion; that Denham thereafter ceased to observe the stipulations of his contract, and that plaintiff completed the work, as it was authorized to do. Judgment was rendered on the pleadings against the plaintiff and in favor of the sureties, dismissing the action, and for costs, from which the plaintiffs appeal.</p>

<p>From Polk: Beuben P. Boise, Judge.</p> <p>Suit for an injunction by the Charles E. Spaulding Logging Co. against the Independence & Falls City Lumber & Improvement Co., resulting in a decree as prayed, from which defendant appeals.</p>

<p>Receivers — Presumption as to Value of Property.</p> <p>1. In determining the compensation of a receiver, where the inventory does not show the value of any of the property, the court will presume that it was worth what it finally realized.</p> <p>Receiver's Compensation — Discretion of Court.</p> <p>2. Generally the amount allowed a receiver for his services is discretionary with the trial court, and will not be modified except under unusual circumstances.</p> <p>Error Not Presumed — Necessity oe Evidence in the Record.</p> <p>S. In the absence of the testimony on which a trial court acted in exercising its discrete rcn, an appellate court will not review the order; for instance, on appeal from an order refusing to make an allowance for an attorney employed by receivers, where the only showing in the record as to the nature or value of the alleged services is a statement that the receivers employed an attorney to make their report and defend the possession of a large amount of property, the action of the trial court in refusing to allow attorney’s fees will not be considered erroneous.</p> <p>Receivers — Allowance or Attorney's Fees.</p> <p>4. An allowance for the services of counsel for a receiver is made to the receiver, and not to the counsel.</p> <p>Bill or Exceptions — Unanswered Question. *</p> <p>5. Appellant cannot review an alleged denial of opportunity to introduce evidence, where the record fails to show that he offered testimony and excepted to its exclusion.</p>

From Coos: James W. Hamilton, Judge. This is a suit by the Flanagan & Bennett Bank, a corporation, against R. A. Graham and others to foreclose two chattel mortgages, the first of which was executed by Graham to Flanagan & Bennett, as partners, on January 20,1891, to secure the payment to them of $6,039.54, and such further amount as they should advance to him. within sixty days thereafter, not exceeding $10,000 in all, and interest, covering horses, harness, carts, wagons,…

<p>Bankruptcy op Corporation — Who May Sub por Unpaid Subscriptions.</p> <p>Under 30 Stat. U. S. 565, § TO,* which vests in the trustee in bankruptcy all property transferred by the bankrupt in fraud of creditors, as well as all rights of action arising on contract, and authorizes the trustee to avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, the trustee is the only person who can sue to recover unpaid stock suoscriptions from the stockholders of an Oregon corporation, for in this state such subscriptions constitute an asset of the corporation, and must be proportionately distributed among the creditors, which can be done only by a trustee.</p>

<p>From Multnomab: Arthur L. Frazer, Judge.</p> <p>This is an appeal from an order vacating a sale under a writ of execution. Plaintiff is a resident of Scotland, but owns real estate in Portland. Maemaster & Birrell, of that city, are, and for many years have been, his agents, having the entire control and management of his property and business affairs therein. In 1899 they employed Miller Murdock, an attorney of this court, to commence an action in the name of their principal against the defendants for the use and occupation of real property belonging to him. Upon the trial of the action on February 6, 1900, an involuntary nonsuit was given against the plaintiff, and a judgment for $33 costs. On March 6th an execution was issued on the judgment, and placed in the hands of the sheriff for service, who, on the 16th, levied upon three lots in the City of Portland belonging to the plaintiff, of the probable value of $30,000, by making and filing with the county clerk the certificate provided for by Section 301, B. & C. Comp., and thereafter advertised them for sale in the manner provided by law. On April 28th, after offering them separately at public auction, and receiving no bids therefor, he sold them en masse to C. C. Palmer, the attorney for defendants, for $42.25; that being the highest and best bid offered therefor. On May 9th the sheriff reported the sale and proceedings under the writ, returning the execution fully satisfied. No objections having been made or filed to the confirmation of the sale, on January 24,1901, about eight months after the sheriff’s return had been filed, it was confirmed on motion of Palmer. On December 31, 1901, Murdock, on behalf of the plaintiff, and in pursuance of a previous notice, redeemed the property, and received from the sheriff a certificate of redemption. On January 24, 1902, the court, on its own motion, and without notice to the defendants or to the purchaser, made an order vacating and setting aside the confirmation of the sale 'because “inadvertently made,” and that, “had all the facts and circumstances in connection with the sale been known * * at the time of said confirmation, the said order would not have been made. ’ ’</p> <p>On the 7th of the next month the plaintiff appeared by his attorneys, and moved the court to set aside and vacate the order of confirmation, and for leave to file objections to the sale and the confirmation thereof, on the ground that such order “was entered through, the inadvertence, mistake, and excusable neglect of plaintiff.” This motion was supported hy the affidavits of Macmaster and Birrell, stating, in substance, that they are the sole and exclusive agents of the plaintiff, and have entire charge and control of the management of his property and affairs in Portland; that, acting as such agents, they employed Miller Murdock, whom they believed, and had reason to believe, to be a careful and capable attorney, to represent the plaintiff in said action; that in all matters and things pertaining thereto the. plaintiff and affiants relied entirely upon Murdock to advise them and properly to attend to such matters; that Murdock was not the regularly retained legal adviser of the plaintiff, but was employed for this particular action, and no other; that, after the rendition of the judgment against the plaintiff for costs, affiants frequently requested Murdock to advise them of the amount of such judgment, in order that they, as agents for the plaintiff, might pay it, and have it satisfied of record; that Murdock from time to time advised them that he was negotiating with the defendant’s attorney, Mr. Palmer, for the settlement of the judgment, and that in due course the same would be paid and satisfied; that, immediately after the recovery of the judgment, plaintiff discharged Murdock, and paid him in full for his services, except that he was authorized to negotiate with the defendants for the settlement or compromise of the judgment for costs; that plaintiff employed other attorneys, who prosecuted the same cause of action to a successful issue; that affiants are not able to state the reason why Murdock concealed from them and the plaintiff the true state of affairs with reference to such a levy and sale, unless it was on account of having been unsuccessful in the action, and, having incurred a large sum for expenses, he feared that he would be criticised adversely for permitting the further expense of a levy and sale; that neither the plaintiff, nor the affiants, as his agents, ever had any notice or knowledge that execution had been issued on the judgment until the 15th day of January, 1902, when they were so notified by Palmer, who demanded of them an accounting for all the rents and profits of the real property levied upon and sold from the day of sale until the 31st of December, 1901, the day of redemption; that prior to such notice, and on the 30th of December, 1901, they delivered to Murdock, who had appeared as attorney for the plaintiff in the action, the sum of $49.80, for the purpose, as they understood, of paying the judgment, but, without the knowledge of the plaintiff or of the affiants, and without authority to do so, he redeemed the property from the pretended sale; that all of the proceedings in the matter subsequent to the entryof judgment were had without anyactual notice or knowledge on the part of the plaintiff, or of the affiants, as his agents, and that notice of the levy and sale was not communicated to them by Murdock; that the failure of the plaintiff to file objections to the confirmation of the sale within the time provided by law was due to the.lack of any knowledge by or notice to him or his agents that the sale had occurred, and, if plaintiff or the affiants had had knowledge of the levy or sale, the plaintiff would have presented in due course his objections to the confirmation thereof; that, notwithstanding the fact that the affiants, as the sureties for Brand in the action brought by him against the defendants, had furnished and caused to be filed an undertaking for a writ of attachment, whereby they undertook and agreed to respond to any judgment that might be entered against the plaintiff and in favor of the defendants, they were not informed that an execution had been issued upon the judgment, and no demand was ever made upon them by the sheriff to pay the same; that Palmer was the attorney for the defendants in the action, and became the purchaser at the sale under the execution, and has since brought a suit against the affiants to collect from them the rents and profits upon the property from the day of the alleged sale and purchase by him to the day of redemption; that the amount of the rents and profits during such time would amount to about $3,000, which affiants have collected, and long since remitted to the plaintiff; that, unless the order of confirmation 'is set aside, and plaintiff is permitted to file objections thereto, great hardship will be imposed upon these affiants and upon the plaintiff, and that, in the opinion, of affiants, Murdock will be financially unable to respond in damages in case plaintiff should be compelled to pay Palmer the sum of $3,000 for the rents, issues, and profits of the property.</p> <p>The defendants filed Palmer’s affidavit in opposition to the motion, which shows that in the record of the action in which the judgment was recovered there is no suggestion that Mac-master & Birrell were plaintiff’s agents, or that any one in Oregon represented him in reference to his property, except Murdock, who verified the pleadings on the ground that his client was not a resident of the state; that in the legal proceedings subsequently commenced by Brand against one of the defendants, and which were pending until January 10,1901, Murdock acted as Brand’s attorney, to the knowledge of Macmaster & Birrell; that Palmer called on Murdock on December 12, 1900, and requested him to settle up the matter, and Murdock said that he had known of the sale for some time; that later Murdock told him that Macmaster & Birrell desired to wait until they obtained certain moneys from the sheriff, and requested that until then no confirmation order be entered; that Palmer applied for the order of confirmation, when he ascertained that Murdock, on the 16th of January, had received money from the sheriff, but neglected to apply it on the judgment; that on March 14, 1901, Palmer again called on Murdock, and requested him to close up the matter, and Murdock said that he had notice that the order of confirmation had been entered; that some days later Murdock called on Palmer, and stated that the plaintiff was willing to pay in settlement the amount of the judgment, $33, and interest, which was refused; that thereafter, and on December 31, 1901, Murdock, acting for Brand, redeemed the property, and the sheriff issued and delivered to him a certificate of redemption; that a notice of the order of confirmation was published in the Daily Official Abstract of January 25, 1901, as a part of the proceedings of the circuit court for the day before, and that Macmaster & Birrell were subscribers for such paper, and it was delivered to them on the date of its publication.</p> <p>Upon these affidavits the court, on February 12, 1902, made an order vacating and setting aside the order of January 24, 1901, confirming the sale, and granted leave to the plaintiff to file objections to such confirmation. On the same day plaintiff filed objections thereto, because: (1) It did not appear from the sheriff’s return that any attempt was made by him to levy upon personal property before levying upon the real estate; (2) that the notice of sale was not given by pxiblication in a newspaper of Multnomah County; (3) that the levy was grossly excessive, and disproportionate to the amount of the judgment upon which the writ was issued; (4) that at the time of the levy and sale the plaintiff was a naked trustee for the beneficial owner of the property; (5) that Palmer, the purchaser at the sale, had been paid the full amount of the original judgment, with accrued costs, and was, therefore, not an innocent purchaser. The affidavits of Macmaster & Birrell were filed in support of these objections, stating: (1) That the notice of sale was published in the Hebrew News, published in Portland, and that such paper was not a newspaper of general circulation; (2) that the property levied upon by the sheriff consisted of three lots in the City of Portland, each worth at least the sum of $10,000; (3) that the plaintiff is an official of the British Linen Company Bank, and holds the title to the pi’operty in trust for the bank; (4) that the defendants did not pursue their remedy for the collection of the judgment promptly, but waited almost a year after the sale before moving for the confirmation thereof. The defendants moved to strike the objections to the confirmation of the sale and all affidavits and papers in support thereof from the files, on the ground that they were not filed within the time allowed by law, and the order of the court permitting them to be filed was null and void for want of jurisdiction. This motion was overruled, and on February 17, 1902, all the objections to the confirmation of the sale, except the second, were sustained by the court, the sale was vacated, and an order entered that no further proceedings be had upon the execution. From this order the defendants appeal.</p>

From Yamhill:. Henry H. Hewitt, Judge. This is a suit by C. H. Abernethy and others against Iri Orton to impress a lien upon an interest in real property.

From Harney: Morton D. Clippord, Judge. Suit by Hull Hotchkiss against George W. Young to enjoin defendant from closing or otherwise interfering with an irrigation ditch. From a decree in favor of defendant, plaintiff appeals.

From Douglas: James W. Hamilton, Judge. This is an action by J. H. Baum against the Rainbow Mining, Milling & Smelting Co. to recover an undivided one third interest in two certain quartz mining claims, located jointly by Robert W. Thomason and Lawrence Cantile, known as “Rainbow Claim No. 1” and “Rainbow Claim No. 2;” the latter being an extension of the former, and located upon the Rainbow vein, a lode of mineral-bearing rock in place, situated near Drew’s Creek, a…

<p>From Marion; James W. Hamilton, Judge.</p> <p>Tbis is an action by Joseph W. La F'ollett against McKinley Mitchell to recover damages for breach of a contract. On May 17, 1898, the plaintiff and defendant entered into a contract, whereby the former agreed to sell and deliver to the latter by June 1, 1898, if possible, f. o. b. boat on the Willamette River, all his crop of potatoes, which it was supposed would amount to from 700 to 900 sacks, defendant to furnish the sacks and pay a certain stipulated price for the potatoes when so delivered. Soon after making the contract, the plaintiff, with five employes, entered upon its performance, sacking and putting the potatoes in condition for delivery. On May 27th the defendant proposed a modification of the contract, so that the delivery should be made at the plaintiff’s farm, instead of on board the boat, to which plaintiff offered to consent, providing defendant would pay the balance due before the potatoes were removed. Defendant refused to make such payment and notified the plaintiff that he would not accept the potatoes at any time or place, at the same time demanding the return of the $20 paid on the purchase price and the value of the sacks he had furnished. Plaintiff refused to return the money so advanced on the contract or to pay for the sacks, but informed the defendant that he intended to comply with his contract by delivering the potatoes at the time and place agreed on. On the next day the defendant commenced an action in a justice’s court against the plaintiff to recover the money advanced under the contract, the value of the sacks he had furnished the plaintiff, and some other items as damages, alleging that the plaintiff had violated the terms of his contract, and had refused to comply therewith. At the same time he sued out a writ of attachment, and on the 31st of May, in company with the acting constable, went to the farm of the plaintiff, who had in the mean time sacked and prepared for delivery all the potatoes except about seventy-five sacks, and notified him that he would not take the potatoes, again demanding a return of the $20 advanced and the price of the sacks. Plaintiff refused to comply with such demand, whereupon the defendant directed the constable to seize and attach all the potatoes in the field, which was accordingly done, and they were placed in the care of a keeper. A few days later, 270 sacks of the potatoes so attached were taken to Brooks, where they were later sold, as perishable property, at 10 cents a sack; the remainder being left in the field, where they subsequently spoiled. On June 20,1898, a nonsuit was taken, and the action dismissed.</p> <p>Thereafter, on July 9, 1898, the defendant commenced another action against the plaintiff to recover damages for an alleged breach of the contract referred to. In his complaint, after setting out the contract, alleging the amount of money he had advanced and the value of the sacks furnished, he averred, in substance, that on May 27,1898, the plaintiff herein repudiated the contract, and informed him that- he would not deliver the potatoes as stipulated, or at all; that upon such refusal he demanded the return of the $20 and the value of the sacks furnished, but plaintiff refused to return the money or pay for the sacks; that the potatoes were purchased for resale, and the plaintiff was so informed at the time; that by reason of the breach of the contract defendant had been damaged in the sum of $100 as profits on such contemplated transaction, in addition to the money advanced and the value of the sacks furnished. The plaintiff as defendant in such action, for his answer, denied the breach of the contract as alleged in the complaint, and for an affirmative defense averred, in substance, that on or about the date referred to the defendant proposed to take the potatoes at the farm, to which he agreed, on condition that the balance of the purchase price should be paid before they were taken away, but that defendant wrongfully refused to make such payment) and thereupon notified plaintiff that he would not accept the potatoes, and absolutely refused to receive them; that plaintiff; was then, and ever since has been, ready and willing to deliver the whole of the potatoes, and at that time and place, and at divers times thereafter and before the commencement of the action, had offered the whole of them to defendant, and demanded payment of the balance of the purchase price, but that defendant wrongfully refused to accept or pay for them. Such proceedings were thereafter had in the action that a trial in the circuit court resulted in a verdict and judgment in favor of the plaintiff for his costs and disbursements, such judgment being affirmed on appeal December 24, 1900: Mitchell v. La Follett, 38 Or. 178 (63 Pac. 54).</p> <p>On January 29th following, the present action was commenced by plaintiff against the defendant. The complaint, after setting out the terms of the contract for the sale of the potatoes, avers, in effect, that in pursuance thereof the plaintiff, prior to May 31, 1898, had sacked and put up for delivery all the potatoes mentioned therein, except about seventy-five sacks thereof, and was then, and at all times since has been, ready and willing to perform his contract and deliver the potatoes, as agreed upon, but that the defendant hindered and prevented him from so doing by wrongfully causing the potatoes to be seized under a writ of attachment issued out of the justice ’s court in the action brought by him against the plaintiff on the 28th of May; that under such writ J. "W. Taylor, as constable, seized and held all the potatoes until they had spoiled and become unmarketable, except the 270 sacks referred to, and prays for a judgment against the defendant for $372.15 general and $78.78 special damages. The answer denies all the material allegations of the complaint, and by way of estoppel sets up the proceedings and judgment in the action brought by defendant against plaintiff on July 9th to recover damages for an alleged breach of contract. A reply was filed, putting in issue the material allegations of the answer, and denying that the judgment referred to is a bar to this action. At the trial the plaintiff introduced as evidence the records in the actions against him of May 28 and July 9, 1898, gave oral testimony tending to support the allegations of his complaint, and rested. The defendant thereupon moved for a nonsuit, which, being overruled, he introduced testimony in his defense, and at the close of all the evidence requested a direction to the jury to return a verdict in his favor. This was likewise overruled, and the cause submitted, resulting in a verdict and judgment in favor of the plaintiff, from which the defendant appeals.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. This is an action by John Kiernan against Y. Kratz to recover money. The facts are that on January 8,1894, plaintiff, in consideration of $14,500, sold and conveyed a flouring mill to the. defendant, who, in part payment thereof, assigned to him certain certificates of deposit issued by, and a check drawn on, the Portland Savings Bank of Portland, Oregon, the face value of which, with accrued interest, was the sum of $7,461.42.

From Multnomah: Alfred F. Sears, Jr., Judge. This is a suit by George P. Lent and others against the City of Portland and its officers to restrain the collection of a license tax assessed against plaintiffs as attorneys at law. An ordinance of the city ordains, among other things, that all persons practicing the profession of law in the city shall pay a quarterly license fee of from $1 to $15, depending upon their respective incomes for the preceding twelve months.

From LiniT: Reuben P. Boise, Judge. This is a suit by J. P. Schooling to enjoin the City of Harrisburg, a municipal corporation, from opening alleged highways in what is known as “May and Nixon’s Addition” to Harrisburg.

<p>Genekal and Special Damages — Pleading.</p> <p>1. In an action for a breach of a contract, such damages as would be necessarily sustained through the act complained of may be recovered under a general allegation of damage; for example, the difference between the market price and the contract price of goods which are not delivered to a purchaser according to contract constitutes a damage to the purchaser which would inevitably follow sucli failure, and therefore special damages need not be alleged in order to recover such sum.</p> <p>Breach of Contract — Tender—Delivery.</p> <p>2. Where a contract for the purchase of chattels required delivery before payment, no money became due until there was an offer to deliver,'and until then the purchaser was not obliged to tender the price.</p> <p>Breach of Contract — Demand Before Bringing Action.</p> <p>3- Where certain goods, which had been contracted to a purchaser were sold and delivered to another, no demand for the goods by the contract purchaser was necessary before commencing action.</p>

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Action by George W. Anderson, administrator of Chester Anderson, deceased, against the City & Suburban Railway Company. The plaintiff’s intestate, a boy about sixteen years of age. was killed in October, 1901, by coming in contact with a strut of the Morrison-street bridge while riding as a passenger upon one' of defendant’s open trolley cars. In- company with his two sisters and a young gentleman named Robinson, he boarded the car on the East Side, near Grand Avenue, about 8 o’clock in the .evening, for the purpose of crossing to the Wefcfi Side, and there transferring to an Albina car. The seats in the ear were all occupied, and one of the passengers gave up his seat to the ladies of the party; and the deceased, his companion, Robinson, and other passengers, stood on the footboard. In crossing the bridge the deceased was struck on the head by one of the timbers thereof, thrown under the car, and killed. The bridge is twenty feet and ten inches wide in the clear. The defendant company has two car tracks thereon, six feet apart, leaving a space of twenty-six inches between the uprights supporting the roofs of the open or summer cars as they pass each other, and twenty-four inches between the uprights on the outer side and the strut, of the bridge. The footboard of the car is six or eight inches, wide, thus leaving a space of about eighteen inches from the outer edge of the board to the strut. There is no material conflict in the evidence as to the manner of the accident. The witnesses for the plaintiff testified that the deceased was holding the upright with his right hand, and returning his money to his pocket with the left, at the time he was struck. Dr. Josephi, who was standing on the footboard between Robinson and the deceased, and who testified for the defendant, said that the conductor had been around collecting fares, and just before reaching the bridge the deceased asked Robinson to get transfers for the party; that Robinson started to the end of the car for that purpose, when the deceased, who was riding with his back to the west, and therefore toward the bridge, leaned back so as to look behind the witness and see whether Robinson was getting the transfers, and while in this position his head came in contact with the strut of, the bridge, throwing him from the ear. The evidence as to the speed of the car is somewhat conflicting. Some of the witnesses for the plaintiff put it as high as eighteen miles an hour, while those for the defendant estimated it at much less. It is admitted, as we understand the record, or at least there is evidence tending to show, that no warning was given of the approach of the car to the bridge, or of any danger therefrom.</p> <p>The complaint alleges that the defendant was negligent (1) in constructing its tracks in such close proximity to the strut or brace timbers of the bridge as to make it dangerous for passengers riding on the footboard of its cars; (2) in running the car upon which deceased was riding at a dangerous and unlawful rate of speed; (3) in failing to give warning of the approach to the bridge, or the danger on account thereof; and (4) in overloading and crowding the car upon which deceased was riding. These several charges of negligence are denied by the answer. At the close of the testimony, the defendant requested the court to charge the jury as follows: “There is not sufficient evidence in this case to sustain a judgment in favor of the plaintiff, and your verdict must be for the defendant. * * It is not negligence on the part of the railway company to permit passengers to ride on the footboard of its cars, provided a passenger voluntarily chooses that place when the seats are full, rather than await the arrival of another ear, and a passenger taking such position is bound to exercise reasonable care to avoid accident or injury to himself;.but if he fails to exercise reasonable care, and by reason thereof is injured, the railway company is not liable for such injury. ’ ’ Both of these instructions were refused, and the following, among others, given: “If you find from the evidence that the defendant company undertook to carry a number of persons greatly in excess of the capacity of the car upon which the accident happened, so that passengers, including the deceased, were compelled to stand on the footboard, and the accident was the direct result of such overcrowded condition of said car, the defendant would be liable for the same, provided the deceased was not guilty of negligence contributing to the cause of his injury.” ‘ ‘ If you find from the evidence that the deceased, Chester Anderson, voluntarily took his place on the footboard of the car, and that by the exercise of reasonable care he could have ridden safely in that place to his destination, and if you further find that he did not use ordinary care, but unnecessarily and carelessly leaned out from the car, and, by reason of so leaning out, his head came into contact with the framing of the bridge, causing an injury of which he died, the defendant is not liable for any damages resulting therefrom, and your verdict must be for the defendant. ’ ’ The plaintiff had a verdict and judgment for $3,000, and the defendant appeals.</p>

<p>From Linn: George H. Burnett, Judge.</p> <p>Action by the Pacific Coast Biscuit Co. against Mrs. G. A. Dugger, in which plaintiff was defeated and appeals.</p>

<p>From Marion: Reuben P. Boise, Judge.</p> <p>Suit by Portia and Sylvia Knight against Wana Alexander (formerly Wana Miller) and husband, and David Rafferty, as administrator of the estate of William P. Miller, deceased, for the specific performance of a contract to convey real estate. The complaint alleges, in brief, that, in 1884 William P. Miller, the "defendant’s grantor, and N. B. Knight, the plaintiff’s assignor, entered into a mutual agreement, wherein and whereby Miller employed Knight to render and perform certain professional services for him, of the reasonable value of $500, consisting in part of securing a title for Miller to some 524.87 acres of swamp land in Marion County, in consideration of which Miller agreed to convey to Knight, by warranty deed, as compensation for such services, 100 acres thereof, particularly described in the complaint; that Knight duly performed the terms of his contract, and on August 22, 1890, the title to the land was perfected and established in Miller, who thereafter attempted to perform the contract on his part by conveying to Knight the 100 acres referred to, but, owing to inadvertence and mistake, the deed included other lands, not owned by him, on account of which it was returned, but never corrected ; that thereafter Miller conveyed the land in controversy to the defendants, and Knight assigned and transferred all his interest under the contract to the plaintiffs. The answer denies the contract set out in the complaint, or that Miller agreed or undertook to convey to Knight the particular 100 acres described therein. The plaintiffs had a decree in the court below, and the defendants appeal.</p>

<p>From Douglas: James W. Hamilton, Judge.</p> <p>Action by B. B. Sutton against W. B. Clarke and J. L.Baker, doing business as Clarke & Baker.</p>

<p>Receiver — Validity of Appointment — Compensation.</p> <p>1. Where a court having the general power to appoint receivers makes such an appointment pendente Ute, with the express assent of all the parties, the compensation of the officer, as fixed by the court that appointed him, and the expenses incurred by him under its orders, are payable out of the funds of the receivership, though it may subsequently develop that the court did not have jurisdiction.</p> <p>Approval of Expenses of a Receiver.</p> <p>2. An order approving the accounts of a receiver and directing payment of sums thereby shown to have been expended by him in performing his duties, is equivalent to an order authorizing him to incur such obligations.</p>

<p>Effect of Bond to Pax Value of Use of Land Pending Appeal.</p> <p>1. A bond given under Hill’s Ann. Laws, § S38, subdivision 2, conditioned to pay all costs and damages awarded respondent on the appeal, to prevent waste, and, if the decree should be affirmed, to pay the value of the use and occupation of the mortgaged premises until delivery of possession, not exceeding a sum therein specified, absolutely stays the enforcement of the decree, and the mortgagor is entitled to remain in possession pending the appeal, although the filing of such a bond might not have the effect of ousting the purchaser if he had already entered into possession.</p> <p>Mobtgage Eobeclosuee — Liabilitx fob Use Pending Appeal.</p> <p>2. The signers of a bond conditioned to pay any deficiency if the decree should be affirmed, and the value of the use and occupation of the mortgaged premises until delivery of possession, are liable for the value of such use and occupation in addition to the deficiency.</p>

<p>Damages nor Injury to Servant — Construction or Complaint.</p> <p>1. A complaint alleging that plaintiff was injured by the falling of a pile, which was caused “by the gross negligence of the defendant in failing to provide safe and proper appliances for the raising and setting of the same, and in providing an unsafe and dangerous appliance for raising and setting said piles by rope with block and tackle attached to the front of said cannery, with weak and insufficient guy ropes to 'keep said piles from falling to either side as they were raised, and in not attaching said rope with block and tackle to the front of said cannery higher than twenty-five feet from the ground,” must be construed to charge negligence only in using improper guy ropes and in attaching the tackle too low on the building, the general terms being itemized, so to speak, to these two particulars.</p> <p>Proximate Cause or Injury.</p> <p>2. Plaintiff and his fellow-employes were engaged in raising piles with a block and tackle. Guy ropes were provided with which to steady the pile as it was being raised. A pile was prepared to be hoisted, and the guy ropes had been made fast to it, when the men attempted to lift it, but, being extra heavy, after the men had lifted it a short distance, they being unable to lift it further, it swung round, breaking the guy rope, and fell on plaintiff. Heldj that the proximate cause of the injury was the inability of the men to hold up the pile, and not the breaking of the guy rope.</p>

From Multnomah: Melvin C. George, Judge. This is a mandamus proceeding by Heinrich Volp against V. H. Saylor and others, composing the Board of Medical Examiners of the State of Oregon, to compel defendants to revoke an order canceling plaintiff’s license to practice medicine. On June 13, 1891, plaintiff applied to the state board of medical examiners for an examination as to his qualifications to receive a license to practice medicine and surgery within the state.

<p>From Jackson: Hiero K. Hanna, Judge.</p> <p>This is a suit by Minerva E. Hilgar and others against J. W. Miller and wife to set aside a deed, and to compel an accounting for the rents and profits of certain real property. The facts are that on May 9, 1899, Jacob G. Grossman, being the .owner of lots 11 and 12 in block 66 in Medford, executed to J. W. Miller, the defendant, a warranty deed therefor, which was deposited with the Jackson County Bank, to be delivered immediately upon Grossman’s death, provided Miller faithfully cared for and furnished him during his natural life all needful food,- clothing, medicine, and medical attendance, and a decent burial at his death; but if he failed, neglected, or refused to keep or perform either of said conditions, the deed was to be redelivered to Grossman, or to his heirs or assigns. Grossman was thereupon moved to Miller’s house, where he remained, receiving the stipulated care and necessaries, until July 1, 1899, when he went to the soldiers’ home at Santa Monica, California, where he died intestate August 17th of that year; the expenses incident to his residence and burial there having been borne by the managers of said home. Grossman left surviving him Hannah, his widow; McCoy, a son; Plummer and Gertrude Miller, children of a deceased daughter; and the plaintiffs Minerva E. Hilgar and Amanda Bates, daughters — none of whom reside in this state. Grossman left other property in Jackson County, Oregon, for which the county court thereof appointed an administrator, who, having fully settled the estate, was discharged. Mrs. Hilgar secured from her mother, brother, nephew, and niece conveyances of their respective interests in said lots, and, her husband and sister joining her as plaintiffs, instituted this suit, alleging that on May 9, 1899, Grossman, by reason of his advanced age, physical weakness, and mental infirmities, was incompetent to enter into any contract, which fact Miller well knew; that the deed was executed at Miller’s request, and in consequence of his representations that he would perform the stipulations of the escrow agreement, upon the faith of which Grossman relied; that said lots were of the reasonable value of $1,000, but Miller had caused a consideration of $700 to be named in the deed, upon a representation that the services to be performed were reasonably worth that sum, no part of which had ever been paid, except $30 expended in the care of Grossman after the deed was executed; that about July 1, 1899, Miller, in violation of his agreement, caused Grossman to be sent to the soldiers’ home, refusing to aid or assist him in any manner, and after his death fraudulently secured 'possession of the deed by representing' that he had faithfully kept all the conditions undertaken by him, when he had not performed any of them, upon which statement said bank relied, and the deed was thereupon, recorded in said county; that, prior to the commencement of this suit, plaintiffs tendered to Miller the sum of $30 so expended by him, and demanded a reconveyance of the lots, but he refused to comply therewith; and that he had collected large sums as rents and profits of the premises, the amount of which they were unable accurately to state.</p> <p>The answer denies the material allegations of the complaint, and avers that, at the time the deed was executed, Grossman was in such a pliysicial condition as to require constant care and attention; that for many years prior thereto he had purposely isolated himself from his family, but entertained for Miller a strong friendship, and executed said deed to him without solicitation; that prior to May 9,1899, Grossman had made arrangements to enter said soldiers’ home, and intended to leave therefor as soon as his health would permit; that when he went away it was agreed that, if he should become dissatisfied, he would return to Medford, and receive the care and attention stipulated for; and that until his death Miller was at all times ready, able, and willing to keep his agreement, every condition of which he performed, except in so far as he was prevented from doing so by Grossman’s absence. The reply having denied the material allegations of new matter in the answer, a trial was had, resulting in a decree to the effect that Miller was the owner in fee of said lots, and plaintiffs’appeal.</p>

<p>Pleading — Quantum Mebuit — Aidee by Veedict.</p> <p>1. A coDiplaint alleging that plaintiff, at the instance and request of defendant, entered into its employ as foreman of a certain mine; that a reasonable compensation “for said employment for the said period of one year” is $75 per month; and that no part of the amount claimed has been paid — is so defective as not to be aided by verdict, for there is no allegation as to the time of the employment, nor a promise to pay, nor any facts from which a promise to'pay would be implied, as that services had been rendered under the employment: Foste v. Standard Ins. Go. 34 Or. 125, distinguished.</p> <p>Pleading — Aidee of Complaint by Answee.</p> <p>2. An answer consisting of denials only cannot aid a materially defective complaint.</p>

<p>Equity Juiusdiction Whebe Remedy at Law Exists.</p> <p>1. Though the same judge may preside over a court administering both law and equity, yet these forums are separate, and the latter will not assume jurisdiction of the subject-matter where there is a plain, adequate, and complete remedy at law.</p> <p>Waive» of Objection to Equitable Jubisdiction.</p> <p>2. Where facts necessary to confer jurisdiction on a court of equity have been averred and denied, the question of jurisdiction is not waived, but is to be determined on the hearing; and it is the duty of the court to dismiss the suit whenever, during the trial, want of jurisdiction appears.</p> <p>Injunction Against Peobable Desteuction of Estate.</p> <p>3., A complaint alleging that defendant threatened to continue the construction of a dam in a stream to such height that a sudden discharge of the water, such as he intended to cause, would destroy plaintiff's estate, located further down the stream, stated facts sufficient to give a court of equity jurisdiction, as it showed reasonable ground to apprehend an injury that could not be repaired by a payment of damages.</p> <p>Evidence as to Inteefeeence with Use of Steeam.</p> <p>4. Where, in a suit to restrain defendant from interfering with the natural flow of a stream, the evidence shows that defendant never intended to deprive plaintiff of the use of sufficient water to operate its machinery, and that, when he discovered that his interruption of the flow was injuring plaintiff, he, in response to its request, opened his dam, on assurance that the suit would be discontinued, and where it appeared that he did not intend to use the water, except where there was a sufficient quantity to supply plaintiff’s demand, there being no apparent probability that a recurrence of the injury would result, there was no error in dismissing the suit.</p>

<p>An original petition for a writ of mandamus by George W. Hayes against Morton D. Clifford, judge of the Ninth-Judicial District.</p>

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p> <p>Action by William Hearn, as administrator, against Rachael Louttit. Judgment for plaintiff, and defendant appeals.</p>

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>This is a suit by Alice M. Tomasini against M. M. Taylor and George E. Quiggle to enjoin a trespass. The complaint alleges, in substance, that the plaintiff is the .owner and in possession of certain real property in Multnomah County; that'the defendant M. M. Taylor owns a tract of land lying in an easterly direction from the plaintiffs, and that the defendant George E. Quiggle is in possession of certain portions of such land; that for some time past the defendants have continuously, and without permission or license, entered upon and passed over plaintiff’s land, with stock, wagons, and other vehicles, using the same as a roadway or means of travel to and from their premises; that they claim a right to so use the premises, adverse to the right and title of the plaintiff, and threaten to continue to so use them under such claim, and, if permitted, will entirely destroy plaintiff’s estate.and occasion irreparable damage to her. The answer denies some of the allegations of the complaint, and, as a further and separate defense, justifies the acts complained of on the ground that there is a public highway across the land of the plaintiff at the place where the alleged trespasses were committed. The reply put in issue the new matter in the answer, whereupon the evidence was taken, and upon the trial the complaint dismissed, on the ground that the remedy is at law and not in equity. From this decree the .plaintiff appeals.</p>

<p>From Multnomah: Melvin C. George, Judge.</p> <p>This is a suit by G. L. Vanderhoof against L. J. Shell to foreclose a mechanics’ lien claimed by reason of defendant’s failure to pay plaintiff an alleged balance due upon a completed contract. The contract was entered into March 30, 1901, for the construction and erection of an eight-flat building, by the terms of Avhich plaintiff agreed that he would furnish the materials and labor necessary to complete the masonry, carpenter, and joiner work, plastering, etc., required for the erection of such building; that he would commence the work at once, and carry it forward in strict conformity to the draAvings, specifications, and general conditions prepared therefor by Richard Martin, Jr., architect, along with the details and instructions given during the progress of the work, so as not to hinder or delay any other contractors in the performance of their contracts, and with such celerity as to insure final completion, acceptance, and occupancy on or before August 1, 1901, and that, in case of failure to complete the work by that date, he would pay defendant a sum equal to $7 per day thereafter as damages, to be retained out of any money due and unpaid on the contract, in consideration of the faithful performance of which defendant agreed to pay plaintiff the sum of $10,350.40; payments to be made at the rate of 75 per cent on value of materials furnished and labor performed, as the work progressed; valuations in all cases to be made by the architect. It was further agreed that plaintiff should, on demand, produce and file with the architect receipted bills in full for all materials and labor, and that a failure to do so should be sufficient cause for refusing further payments or to cancel the contract; and it was also provided that in each of the said cases a certificate be obtained, and signed by Richard Martin, Jr., architect, none of which payments, except the final one, should be construed or understood to be an acceptance of any portion of the work contracted for. It was further agreed between the parties that the work should be carried on under the supervision and direction of Richard Martin, Jr., architect, who should have power to stop or reject any work or materials not in accordance with the drawings and specifications; that the defendant or his architect should have power, in case of the failure of plaintiff to rectify errors or to finish the work within the date specified, to cancel the contract, or to employ other parties to finish the work at the cost and expense of the plaintiff; that should the owner at any time during the progress of the building request alterations, deviations, omissions from or additions to said contract, he should be at liberty to do so, and such changes should be executed by the plaintiff without in any way violating or vitiating the contract, but the value of such changes should be added to or deducted from (as the case may be) the amount of the original contract price; that, when practicable, the cost of any change should be agreed upon in writing before commencing the same, and no additional time should be allowed for extra work unless agreed upon at the time of making the change; that any dispute respecting the true intent and meaning of the drawings or specifications arising between the parties should be referred to and decided by the architect, whose decision should be final and conclusive, but that any dispute arising in regard to the true value of the extra work or the omitted work should be decided by arbitrators, as therein stipulated; that, where there are different contractors employed on the work, each should be responsible to the other for all damage to work, to persons, or to property, or for loss caused by neglect, failure to finish work within proper time, or from any other cause; that any contractor suffering damage should call the attention of the architect or superintendent to the same for action, as indicated; that, in case of delay being caused by inclemency of the weather, mechanics’ strikes, or by other contractors, and the contractor should require an extension of time for such delay, he should notify the architect thereof, who is authorized to decide the length of time to be allowed, but that no extension of time should invalidate the contract; that, should the work be delayed more than twenty days, the contractor should pay the architect for extra superintendence until the final acceptance of the work, the defendant to be satisfied before paying final certificate that no liens or claims are or can be placed upon the building; and that the final certificate would not be paid until after the expiration of ten days from date of final acceptance of the building by the owner, or architect acting for him.</p> <p>It is alleged in the complaint that the plaintiff performed all the conditions of the contract upon his part, except such as were modified at the instance of the defendant. These modifications or changes are detailed, and their performance shown. It is further alleged that, by reason thereof, plaintiff was unable to complete the building by August 1, 1901; that he applied to the defendant and the architect for an extension of time, under the provisions of the contract, which was granted; that he was entitled to an extension equal to the time between August 1st and October 22d, on account of such changes, and for the further reason that the defendant’s other contractors hindered and delayed him in completing the building within the time specified; that the plaintiff, before the commencement of this suit, and before the filing of the lien, demanded in writing of said architect his' final certificate for the sum of money he was entitled to receive, but was refused. The answer, after putting ip. issue the material allegations touching performance, etc., sets up affirmatively (1) that plaintiff failed to complete the work within the stipulated time, and did not finish same until October 22, 1901, eighty-two days thereafter, and that his damage for such delay and loss of rentals was at the full rate of the stipulated sum, $7 per day; (2) that plaintiff has suffered a lien to be filed upon said building, contrary to his undertaking; (3) that defendant has paid all certificates given by the architect, and that the building has not yet been accepted, either by the owner or the architect; and, (4) by way of counterclaim, that plaintiff has failed to perform the work as agreed upon, to defendant’s damage in the sum of $750. These averments are controverted by the reply, and, the decree being favorable to plaintiff upon the merits of the cause, the defendant appeals.</p>

<p>Artificial Water-Course — Effect of Agreement as to Water.</p> <p>Evidence in a suit for tile determination of water rights examined, and held to show that on the construction of the water-way the owners through whose lands it ran agreed that the upper owner was to use all water needed for irrigation purposes, the surplus only to belong to the lower owner; and therefore that the rights of the parties were not to be determined by the rules governing riparian owners on a natural stream.</p>

From Marion: Reuben P. Boise, Judge. This is a suit by James Finney against William H. Egan to stay proceedings in an action at law and to determine tbe boundary between certain lands. The plaintiff; is the owner of the northern part of the Lemmon donation land claim, in Marion County, which is bounded on the north by the Albright donation land claim, owned by the defendant.

From Union: Robert Eakin, Judge. This is a suit by the Union Street Railway Co. against the First National Bank of Union and others to compel the defendant bank to surrender up for cancellation four certain bonds of the defendant, the Union Railway, now in its possession, of the par value of $1,000 each, and numbered from 1 to 4, respectively.

<p>Statutory Dedication of Streets by Unacknowledged Recorded Plat.</p> <p>1. Recording an unacknowledged plat of land, showing lots, blocks and streets, does not constitute a statutory dedication of the streets, for the plat was not entitled to record, Deing without an acknowledgment.</p> <p>Example of Ineffective Attempt at Common Law Dedication.</p> <p>2. An owner of a tract of land platted the same, showing lots, blocks, streets, and alleys thereon, but without indicating the size of the lots or blocks, or the width of the streets or alleys, and without referring for identification to a survey or any natural object. The plat was not acknowledged by him, nor was it shown that he caused the land to be laid out by surveying it, or that he marked on the ground the lots, blocks, streets, or alleys, or fixed an initial point from which a survey could be extended. There was no acceptance of the streets indicated on the plat for over thirty years. Held not to constitute a common-law dedication of the streets.</p>

From Umatilla: W. R. Ellis, Judge. Suit to establish a boundary line by J. F. Killgore against George Carmichael, resulting in a decree for plaintiff, from which this appeal is taken.

<p>Appeal from Tillamook County.</p> <p>Action by Martha J. Walling against William Trevor, in which plaintiff appeals from a judgment against her. Motion to dismiss the appeal.</p>

From Lane: James W. Hamilton, Judge. Suit by G. B. Perelli against C. F. Candiani and Caesar Marco to establish an interest in a mine, resulting in a decree for defendants, from which plaintiff appeals.