Volume 44 — Oregon Reports

From Yamhill: Reuben P. Boise, Judge. This is a suit by D. H. Covert against Alice H. Covert and others to compel the defendants to convey to the plaintiff a tract of land in Yamhill County containing 153 acres.

From Multnomah: Melvin 0. George, Judge. This is a suit by F. E. Beach for the foreclosure of a mechanics’ lien claimed by him upon four dwelling houses for materials furnished and used thereon. The defendant Stamper also claims a lien thereon for painting.

<p>Compromise and Settlement.</p> <p>tinder the general rule favoring voluntary settlements between disputing parties, the fact of settlement being a sufficient consideration to support the contract, a compromise of a dispute over the life of a certain lease by destroying the old one and executing a new lease, both parties being advised as to their rights, and no fraud or concealment intervening, cannot be avoided in equity.</p>

<p>Tax Collector’s Bond—Liability of Sureties for Past Defalcations.</p> <p>1. The sureties on the official undertaking of a tax collector, which stipulates that the sureties will make good “all moneys that may or shall come into his hands as tax collector” that he does not faithfully account for, are liable for all tax moneys previously received which the tax collector had on hand at the execution of the undertaking, and all moneys subsequently collected in his official capacity, but are not liable for prior defalcations, if any, unless the money had been restored at the time of the making of the undertaking, or was thereafter restored.</p> <p>Liability for Money Collected on Void Warrant—Estoppel.</p> <p>2. The fact that taxes were collected by a tax collector under a defective warrant, or without any warrant, constitutes no defense to the sureties, when sued for the collector’s conversion of the money so collected, for the officer and his sureties are estopped by his acts in taking the money from the taxpayers.</p> <p>Liability of Tax Collector for Collections by Deputies.</p> <p>3. Where tax collections are made by a public official by virtue of his office, though under a defective warrant, or without a warrant, the entries made by his deputies, tending to show the collection of taxes by them, are binding on the collector’s sureties.</p> <p>Construction op Statute Requiring Periodical Payments.</p> <p>4. Section 2797, Hill’s Ann. Laws, requiring tax collectors to pay to tlie county treasurers once in every thirty days the tax money then collected is intended to protect the counties, and does not affect the liability of sureties of tax collectors, whose undertaking is that they will account for the tax money, and not that they will make the periodical reports referred to in the statute/</p> <p>Presumption Prom Failure to Make Required Payments.</p> <p>5. The presumption arising from the failure of a tax collector to make the periodical payments of tax money to the county treasurer required by Section 2797 of Hill’s Ann. Laws is that the officer has merely retained the money rather than that he has converted it.</p> <p>Overcoming Disputable Presumption.</p> <p>6. A disputable presumption maybe overcome by either direct or indirect evidence, or both, and it is error to withdraw from the consideration of the jury inferences affecting such a presumption. For instance, after a court has instructed a jury that presumably a tax collector has on hand when he files his tax collector’s special bond whatever money has been collected but not paid into the county treasury, it is reversible error to add that this presumption must be overcome by satisfactory evidence, and cannot be overcome by mere inferences, for the indirect and inferential circumstances are competent under the statute.</p>

From Clackamas: Thomas A. McBride, Judge. This was an action by Gottleib Schmidtke and others against George Keller. Plaintiffs had judgment, and defendant appealed. Respondent moved to dismiss the appeal, whereupon appellant moved for a rule to bring up the evidence. After a disposal of these motions, and' a further one to determine whether the proceeding was at law or in equity, the appeal was heard on its merits. Motion to Dismiss Overruled. Motion for Rule Granted.

From Grant: Morton D. Clifford, Judge. Suit by Bascom Glaze against Herman Frost to restrain the diversion of certain waters, resulting in a decree for plaintiff, from which defendant appeals. Submitted on briefs under rule 16.

From Union: Robert Eakin, Judge. Suit by the Gold Ridge Mining Co. against F. W. and L.W. Tallmadge to foreclose a lien on a ditch. There was a successful defense of breach of contract, and plaintiff appealed.

<p>From Grant: Morton D. Clifford, Judge.</p> <p>This action was commenced by Dixon & Craig in a justice’s court, it being alleged by the complaint, in effect, that on January 15, 1903, the defendant stood indebted to plaintiffs in the sum of $200, and as evidence thereof executed and delivered to plaintiffs his certain duebill for that sum, payable in thirty days; that the whole thereof is due, and defendant neglects to pay the same. An answer and reply having been filed in their order, a trial was had before the justice, resulting in a judgment for plaintiffs, from which the defendant appealed to the circuit court. Upon plaintiffs’ application therein they were allowed, over objection, to amend their complaint, whereby it is «alleged that on January 15,1903, defendant was indebted to plaintiffs in the sum of $200 for work and labor done and performed as carpenters at the special instance and request of the defendant, and, being so indebted, made, executed, and delivered to plaintiffs his certain duebill, setting it forth by copy, whereby he promised and agreed to pay plaintiffs the sum named, and that the same is due and wholly unpaid. To this complaint an amended answer was filed, which, after denying specifically, sets up as a separate defense that in 1902 one Kelly entered into a contract with defendant and C. P. Johnson, whereby he agreed to construct a stone and brick building for them; that thereafter, about August 10th of the same year, plaintiffs entered into a contract with Kelly, whereby, in consideration of the sum of $975, they agreed to perform the carpenter work upon the building; that plaintiffs performed extra work and services upon said building, not provided for in the contract, of the reasonable value of $384.70; that plaintiffs failed, however, to complete the said carpenter work according to their contract, in that they failed to build a desk in the office, the value oE which work is $50, or to complete a partition on the first floor, the value of which is $25, or to place therein certain girders of the value of $75 ; that the value of the work and services performed by the plaintiffs under their contract is the sum of $825, and the total value of all work, including the extra services performed, is $1,209.70; that defendant paid to plaintiffs, on January 15, 1903, under said contract with Kelly, and on account of said extra labor and services, the sum of $1,294.70, being $85 in excess of the value of such services, which latter sum plaintiffs undertook and agreed to repay to the defendant; that on said January 15th, the plaintiffs having failed to perform their contract with Kelly in the particulars mentioned, the defendant, for himself and on behalf of C. P. Johnson, in consideration of the promise of plaintiffs to complete said building according to contract with Kelly in thirty days, and as an inducement to them to do so, made and delivered to plaintiffs the duebill mentioned in the complaint; tÉat notwithstanding said promise the plaintiffs have ever since refused to complete said work and building according to their contract with Kelly and in the particulars mentioned, whereby the consideration for the duebill has wholly failed, wherefore defendant prays judgment against plaintiffs for the sum of $85.</p> <p>The plaintiffs moved to strike out the whole of this answer by paragraphs, and were sustained in part—that is, as to paragraphs 2, 4, and 5—and overruled as to the remainder. The reply was permitted to stand as filed in the justice’s court, whereby it is in a manner denied that plaintiffs failed to complete the carpenter work, or that the consideration for building the desk or partition or placing the girders in said building constituted the consideration or inducement for giving the duebill set up in the complaint. Upon this state of the case a trial was had, resulting in a verdict for the plaintiffs in the sum of $125, notwithstanding which defendant moved for judgment against them on the pleadings, which being denied, and judgment having been rendered upon the verdict, the defendant appeals. The case was submitted on briefs under Rule 16.</p>

<p>Pleading—Striking Out—Reformation of Notes.</p> <p>1. Irrelevant and immaterial matter may be eliminated on motion, and should be disposed of before trial, to the end that the material issues may not be confused with others. For instance, in a suit to reform notes executed by trustees so that they shall be payable only out of the trust estate, allegations in the answer that plaintiffs, as trustees, had failed to account for certain trust property, that they had negligently allowed trust property to be sold on foreclosure, and that from the time of execution of the notes to the commencement of a certain action against them personally on such notes, they had made no effort to have them reformed, whereby they were estopped, were properly stricken out; the only proper issue before the court being whether the notes expressed the actual contract.</p> <p>Evidence of Mutual Mistake.</p> <p>2. The evidence herein shows that in reducing to writing the oral agreement of the parties there was a mutual mistake as to the legal meaning of the terms used, in consequence of which the writing does not express the actual contract made.</p> <p>Reformation of Writings for Mistake of Law.</p> <p>3. The statement that equity will not relieve against a mutual mistake of law is true only in a limited sense, that is, when the mistake is as to the legal effect of what has been agreed upon. Where, however, the error of law is in the legal meaning or effect of certain words employed in writing out the contract, equity will grant relief, for the writing then does not express what the parties meant.</p> <p>Example of Reformable Contract—Mistake of Law.</p> <p>4. It having been the intention of all the parties that certain promissory notes given by trustees should be payable out of the trust estate only, but owing to a mutual mistake as to the legal effect of the phraseology of the notes, they were so drawn as to render the trustees personally liable, the notes should be reformed in equity so as to express the true intention.</p> <p>Estoppel on Reformation of Writings.</p> <p>5. Trustees who have unintentionally executed and delivered their personal obligations instead of obligations payable out of the trust estate are not estopped from asking for the reformation of the instruments by the fact that the trust funds have been disposed of, so that the reformed notes wili be worthless.</p> <p>Reformation of Writings—Laches.</p> <p>6. Where certain notes were executed by trustees, it was the belief of the parties that the trustees were not liable thereon personally; such having been the intention of the parties. But subsequently, in an action against the trustees individually, it was determined that they were personally liable, whereupon they immediately sued to reform the notes so as to render them payable from the trust estate. Held, that the fact that the trustees had not taken steps to reform the notes until after the trust funds had been disposed of was no objection to the maintenance of the suit, it having been commenced within a reasonable time after the mistake became known.</p>

From Union: Robert Eakin, Judge. This is a special proceeding by Stewart McAnish against William Grant to review the judgment of an inferior court.

<p>Effect of Appearance on Jurisdiction.</p> <p>1. One who enters a general appearance in a pending case thereby confers on the court jurisdiction over his person.</p> <p>Objection to Jurisdiction—Question First Urged on appeal.</p> <p>2. The objection that the trial court did not have jurisdiction of the proceeding may be first urged in the petition for a writ of review, considering Section 72, B. & C. Comp.</p> <p>Sufficiency of Complaint—Title of Court.</p> <p>8. The incorrect statement in a complaint of the name of the court in which it is filed is a formal but not a jurisdictional defect, and a judgment rendered on such a pleading, afterageneral appearance without objection to the title, cannot be impeached by a writ of review, although Section 67 of B. & C. Comp, provides that the complaint shall contain the title of the cause, specifying the name of the court and the names of the parties.</p> <p>The following instance illustrates the rule: A complaint entitled “In the Justice of the Peace Court for the District of the Town of G.,” having been filed with an officer whose title was “Recorder of the City of G. and Ex Officio Justice of the Peace,” and a summons having issued signed by the officer over his proper title, the defendant appeared by a general demurrer to the facts, and stood on his pleading when it was overruled, whereupon judgment was entered as prayed. Defendant then took the case up by writ of review, insisting that the court was without jurisdiction, owing to the mistake in the title of the court, but it was held that the mistake in the title was a mere formal defect, amendable on motion, and that defendant was bound, having appeared and tried the case without urging this point.</p> <p>Statutes—Constitutionality of Municipal Charter.</p> <p>4. The act creating the City of Greenhorn, providing that it shall constitute a j astice of the peace and constable dist2’ict, and that the recorder and marshal thereof shall be ex officio j us tice of the peace and constable, respectively, is constitutional and notin violation of Const. Or. Art. IV, §§20 or 23, Subd. 1, or of Art. VII. § 1.</p>

From Malheur: Morton D. Clifford, Judge. Action of claim and delivery by W. D. Jenkins against the City of Ontario, for property seized and held by its marshal, resulting in a judgment for defendant because the municipality was not liable in this form of action for seizures and detentions by its officers. Submitted on briefs under Rule 16. 1.

<p>Pleading—Execution and Delivery oe Note.</p> <p>1. Plaintiff having pleaded the execution and delivery of a promissory note by a general description, defendants denied the allegations of the complaint, and for a further answer set up the same note by copy, alleging that one of the signers wrote “surety” after his name, which plaintiff had erased. This was an admission of the execution and delivey of the note sued on, and it was unnecessary to produce the original.</p> <p>Pkosiissory Note—Principal and Surety.</p> <p>2. A signed and delivered note is the obligation of the signers, as to the payee, though one or some of the signatures may have the word “surety” attached. The only effect of such a signature is to adjust the relationship of the signers between themselves.</p> <p>Burden oe Proof as to Alteration oe Note.</p> <p>3. An alleged alteration of a promissory note is a matter of defense, the burden of proof of which is on the defendant.</p>

From Umatilla: W. R. Ellis, Judge. Suit by Levi Ankeny against William Blakley, as sheriff of Umatilla County, and another, for an injunction to restrain the respondents from collecting a tax on certain bank stock owned by complainant.

<p>From Multnomah.: John B. Cleland, Judge.</p> <p>Divorce proceeding by Charlotta Benfield against Frederick Benfield, which was dismissed, resulting in this appeal.</p>

<p>From Jackson: Hiero K. Hanna, Judge.</p> <p>Suit by S. Hamilton against Ulysses Fluornoy, in wbicb plaintiff prevailed and defendant appealed.</p>

From Douglas: James W. Hamilton, Judge. This is a proceeding in the nature of a cross-bill, filed in an action which Annie G. Warren brought against Jas. H. Ward and others on a judgment she had recovered against them in the State of Minnesota.

From Multnomah: Arthur L. Frazer, Judge. This is a suit by Laurena Posson against the Guaranty Savings & Loan Association to compel the cancellation of a note, and a mortgage given to secure the payment thereof, on the ground that the debt had been fully paid and discharged. The complaint was filed on November 25, 1901, and the summons was issued and delivered to the sheriff the same day, but it was not served upon the defendant until the 18th day of December.

From Jackson: Hiero K. Hanna, Judge. Action by W. O. and C. P. Danielson, through their guardian ad litem, against W. B. Roberts, and others, in trover for the conversion of sundry gold coins/found by the .plaintiffs in an old chicken house, and delivered to defendants.

From Multnomah: Melvin C. George, Judge. Suit by J. Adrian Epping, individually and as executor of the estate of Louise I. E.. Epping, deceased, against the Washington National Building, Loan & Investment Association. From a decree in favor of plaintiff, defendant appeals. The case was submitted on briefs under the proviso of Rule 16 of the supreme court.

From Multnomah: John B. Cleland, Alfred F. Sears, Jr., Arthur L. Frazer, and Melvin 0. George, Judges, in joint session. This is a suit by A. A. Kadderly and others against the City of Portland and others for an injunction. The Constitution of this State (Art. XVII) provides: “Section 1.

From Multnomali: Melvin C. George, Judge. This is ail action by Abraham Jones against John H. Peterson, to recover damages.

From Clackamas: Thomas A. McBride, Judge. This is a suit by Oregon City against the Oregon & California Railroad Company to determine an adverse claim to real estate.

<p>Constitutional Pbohibition Against Monopolies.</p> <p>1. Under Const. Or. Art. I, § 20, prohibiting the granting to any citizen or class of citizens privileges which shall not equally belong to all citizens on the same terms, a monopoly in a lawful and uninjurious business cannot be granted by the legislature.</p> <p>Sailob Boabding Houses—Statutes—Polioe Poweb.</p> <p>2. The keeping of a sailor’s boarding house is not such an illegal business, or one so inherently injurious to the public, that the legislature may grant an exclusive right to conduct it. A monopoly in that business is unconstitutional, and therefore the statute creating the sailor boarding house commission (Laws 1903, p. 238) is either illegal or it cannot be construed as authorizing the board to arbitrarily license only one person or firm.</p>

From Baker: Robert Eakin, Juclge. Suit to determine conflicting water rights by J. D. Mc-Phee, James Dalton, and P. L. Smith against L. S. Kelsey, resulting in a decree for defendant, from which this appeal is taken.

From Linn : Reuben P. Boise, Judge. This is a suit by T. F. Walker against G. F. Harold and wife to set aside a deed. The facts are that on March 15, 1889, the defendant G. F. Harold was the owner of 240 acres of land in Linn County, at which time he gave his promissory note to W. P. Kaiser for $200, payable in five months, with interest.

<p>From Multnomah.: John B. Cleland, Alfred F. Sears, Jr., and Melvin C. George, Judges, in joint session.</p> <p>This is a suit by Harry White and “Mysterious” Billy Smith against S. M. Mears and others, constituting the board of commissioners for licensing sailors’ boardinghouses, to enjoin interference with the keeping of a sailors’ boarding house, on the ground that the act under which the commissioners are acting (Laws 1903, p. 238), is unconstitutional. From a decree sustaining a demurrer to the complaint, plaintiffs appeal.</p> <p>I. The act is void for the reason that it creates a board of commissioners who are officers of the State, with an unlimited term of office, in violation of Const. Or. Art. XV, § 2.</p> <p>II. The act is void because it is a local law providing for the the punishment of misdemeanors, in violation of Const. Or. Art. IV, § 23: Ladd v. Holmes, 40 Or. 167 (91 Am. St. Rep. 457, 66 Pac. 714); Ellis v. Frazier, 38 Or. 462 (53 L. R. A. 454, 63 Pac. 642); Maxwell v. Tillamook County, 20 Or.495 (2-6 Pac. 803).</p> <p>III. The act is void for the reason that it invests the board with legislative functions and with arbitrary power, in violation of Const. Or. Art. I, § 20, and Art. IV, § 1, and also of Const. U. S. Amend. XIV: Harmon v. State ex rel. 66 Ohio St. 299 (58 L. R. A. 618, 64 N. E. 117); State v. Gonlon, 65 Conn. 478 (31 L. R. A. 55, 48 Am. St. Rep. 227, 33 Atl. 519); Ex parte Sing Lee, 96 Cal. 354 (31 Am. St. Rep. 218, 24 L. R. A. 195,31 Pac. 245); Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. 1064); In re Wo Lee, 26 Fed. 471; City of Richmond v. Dudley, 129 Ind. 112 (13 L. R. A. 587, 28 N. E. 312); Noel v. People, 187 111. 587 (79 Am. St. Rep. 238, 58 N. E. 616).</p> <p>IV. The law being invalid, equity has jurisdiction to enjoin threatened arrests: Barther v. City, 29 Fed. 563; Tuchman v. Welch, 42 Fed 548; M. Schandler Bottling Go. v. Welch, 42 Fed. 561; Central Trust Co.v. Citizens’ St. Ry. Go. 80 Fed. 218; People v. Canal Board, 55 N. Y. 390; Wood v. Brooklyn, 14 Barb. 425; Hall v. Shultz, 31 How. Pr. 231; Nelson v. State Board of Health, 22 Ky. Law Rep. 438 (50 L.R.A. 382).</p> <p>(1) The language of the constitution seems to be conclusive in support of the position that an office may be created by law, though its duration be not fixed : Const. Or. Art. XV, § 2; Clem v. State, 33 Ind. 418-423; Indianapolis Brewing Co. v. Claypool, 149 Ind. 201 (48 N. E. 228). Nor are the members of the board state officers: State ex rel.v. George, 22 Or. 142 (29 Am. St. Rep. 586, 29 Pac. 356); David v. Portland Water Co. 14 Or. 98(12 Pac. 174).</p> <p>(2) The law is not special legislation for the punishment of misdemeanors, simply because it adds a penalty for an infraction, the penalty is a mere incident: Ex parte Northrup, 41 Or. 489 (69 Pac. 445, 55 Cent. L. Jour. 149); Ladd v. Holmes,40 Or. 167-174(91 Am. St. Rep. 457,66 Pac. 714).</p> <p>(3) The legislature has ample power to regulate any and every business that is open to all citizens, and to prohibit, if it chooses, any business inherently injurious or dangerous to the public. In the latter cases the legislature is the judge of the degree of danger and of the required protection. In one business all citizens have the right, and an equal right, to engage; in the other no citizen has an absolute right to engage: Cooley, Torts, *276-278; Cooley, Const. Law (6 ed.), 596; State v. Conlon, 65 Conn. 478, 486 (48 Am. St. Rep. 227, 31 L. R. A. 55, 33 Atl. 519); Plumb v. Christie, 103 Ga. 686 (42 L.R. A. 181, 30 So. 759); Decie v. Brown, 167 Mass. 290 (45 N. E. 765); Ex parte Hoover, 30 Fed. 51; Humes v. City of Ft. Smith, 93 Fed. 857; L’Hote v. New Orleans, 177 U. S. 587 (20 Sup. Ct. 788); Ex parte Tuttle, 9 Cal. 589; Crowley v. Christensen, 137 U. S. 86 (11 Sup. Ct. 13).</p>

From Douglas: James W. Hamilton, Judge. This suit was brought by William M. Ladd, as .administrator of the estate of A. H. Johnson, deceased, against W. L. B. Mills to determine an adverse claim to real estate.

From Multnomah : Melvin C. George, Judge. This is an action by William Dubiver, through his guardian ad litem, against the City & Suburban Railway Company, to recover damages for an injury to the plaintiff said to have been caused by the carelessness of defendant’s servants. The defendant operates an electric street railway, with double tracks, upon First Street, in the City of Portland.

From Polk: George H. Burnett, Judge. This is an action by the City of Dallas instituted in the exercise of the right of eminent domain to condemn certain rights of way over and upon the premises of the defendant Mary E. Hallock for conducting water from Canyon Creek, a tributary of La Creole Creek, to the City of Dallas ; also a reservoir site and 500,000 gallons of water flowing every twenty-four hours in La Creole Creek for the construction, maintenance, and operation of a…

<p>Claim by Attorneys on Fund in Court.</p> <p>1. An attorney who represents an insolvent in resisting the efforts of creditors to reach his property is not entitled to compensation out of any fund in court created from the property in litigation, whatever may be the rule where attorneys have assisted in creating or preserving a fund.</p> <p>Power op Insolvent Over Property in Hands oe Receiver.</p> <p>2. An insolvent debtor, after the appointment of a receiver of his property, has no authority to subject the fund in the hands of the receiver to any legal liability.</p>

<p>Trial by J udge—Effect of not Entering Findings.</p> <p>1. The failure of the clerk to enter in the journal, as directed by B. & 0. Comp. §158, the findings and conclusions of the judge before whom a law action has been tried without a j ury, does not affect any substantial right of the defeated party.</p> <p>Nunc Pro Tunc Order After Close of Term.</p> <p>2. Even after the close of the term during which findings have been filed, and after the lapse of the time allowed by B. & C. Comp. § 158, beyond the term for filing them, the court may direct their entry in the journal.</p>

From Multnomah: Arthur L. Frazer, Judge. This is an action by John H. Dight, as receiver for the collection and enforcement of the liability of the stockholders of the Duluth Dry Goods Company, against Simcoe Chapman to recover the par value of certain shares of stock in that corporation. The complaint states the facts constitutingithe plaintiff’s right to maintain this action, and the defendant’s liability for the sum demanded.

From Clackamas : Thomas A. McBride, Judge. This is an action by Rebecca Turney against the Southern Pacific Company to recover damages for an injury suffered by the plaintiff through the alleged negligence of the defendant. In 1868 a public road or highway, about sixty feet wide,from Canemah,in Clackamas County, south to Parrott’s Farm, was inclosed by fences of abutting property owners on one side, and the Willamette River on the other.

<p>Evidence of Similar Conditions—Condemnation.</p> <p>Unless the things used to show comparative values are similar, evidence as to the worth of one would not tend to prove the value of, the other—for instance, in an action to condemn a water right, evidence of the value of water powers two miles distant from the one in question is inadmissible, in the absence of a showing that the conditions surrounding the different water powers are similar.</p>

<p>Waters—Estoppel by not Objecting to Diversion.</p> <p>1. One entitled to the use of water cannot be deprived thereof on the principle of estoppel by merely seeing another constructing a ditch and making no objection thereto until the diversion is completed.</p> <p>Changing Point of Diversion—Rights of Other Appropriatoks.</p> <p>2. An appropriator may change the point of his diversion of water provided he does not thereby inj ure a subsequent appropriator.</p> <p>Changing Point of Diversion not an Abandonment.</p> <p>3. An alteration by an appropriator of water in his point of diversion by changing it from above to below the point of a subsequent appropriator’s diversion, does not, of itself, manifest an intention to abandon the use of the water theretofore appropriated.</p> <p>Rights of First and Subsequent Appropriators.</p> <p>4. The prior appropriator of water is entitled to the use of it all if necessary to irrigate his land under cultivation, and the surplus, after a reasonable use by him, should be distributed to subsequent claimants in the order of their respective appropriations.</p>

<p>Estoppel by Silence in Collateral Matter.</p> <p>1. In an action to recover money said to have been collected by defendant as agent for plaintiff and retained without, authority, defendant is not estopped from denying the receipt of the money, nor is he in any way bound, by the fact, that he was present in court during the trial of another action, to which he was not a party, and remained silent when testimony was given that the money in dispute liad been paid to him as now claimed.</p> <p>Decree Between the Same Parties as Res Judicata.</p> <p>2. Under the rule that a judgment is conclusive as to all matters there distinctly in issue, the decree of divorce between the parties hereto was a settlement of the claim now presented.</p> <p>A complaint, after setting forth grounds for divorce, alleged that defendant was the owner of half of a quarter section of land, except a certain 45 acres thereof, and prayed for a divorce, for the custody of the children, that plaintiff be decreed the owner of one-third of the real estate described, and for general relief. The court found in favor of plaintiff as to the allegations of the complaint, and found that defendent had conveyed the 45 acres to a trustee, to hold 40 acres thereof to be used in maintaining and educating the minor children of the parties, and the other five acres in trust, for plaintiff in fee, and that he bought the five, acres for a valuable consideration. The conclusions of law were that plaintiff was entitled to a decree of divorce, the care and custody of the children, and an undivided third of certain named realty owned by defendant. Held that, though the decree made no reference to the 45 acres, it was an irresistible inference that the finding as to the agreement on which it had been conveyed was one which materially influenced the decree, so that such finding was conclusive in a subsequent action by defendant to recover the price of the 45 acres, on the ground of a different consideration.</p>

<p>Bankruptcy—Fraud In Obtaining Discharge—Rights oe Creditors.</p> <p>Under Bankruptcy Act, July 1,1898, c. 511, g 70, cl. “e,” conferring on a trustee in bankruptcy the right to avoid any transfer by the bankrupt of his property which any creditor might have avoided, and to recover the property so transferred, or its value, a judgment creditor of the bankrupt, after his discharge, cannot levy on and sell the bankrupt’s property because of fraud in securing the discharge.</p>

<p>Mechanic’s Liens—Right of Subcontbactob.</p> <p>1. A subcontractor on a building is a “contractor” within the meaning of that word as used in Section 5010, B. & C. Comp., and is also included in the class of persons designated by that statute as/‘any other person performing labor upon or furnishing material to be used in” any building, and is therefore one who may avail himself of the benefits of the mechanic’s lien law.</p> <p>Scope of Agency of Obiginal Contractor.</p> <p>2. Under Section 5640, B. & C. Comp., which makes “every contractor, builder, or other person having charge of the construction, in whole or in part, of any building * * the agent of the owner,” the contractor for the erection of a building is the owner’s agent for the employment of a subcontractor, who is thus in privity with the owner.</p> <p>Evidence of Terms of Contract—Separate Subcontracts.</p> <p>3. The evidence establishes that the contractor for the erection of the buildings made a separate contract Avith a subcontractor for each building, and therefore the latter is entitled to a claim against each for the amount unpaid on it; Beach v. Stamper, 44 Or. 4, distinguished.</p> <p>Application of Payments.</p> <p>1. A creditor has a right to apply as he may prefer payments made by his debtor, and in the absence of unfairness, the credit will remain as placed. For instance, a contractor under separate engagements to erect, buildings for different owners, having sublet both contracts separately to one person and paid on both without distinction or direction, the subcontractor may make any fair application of the credits, and the property owner cannot complain, the original contractor being his agent under the statute.</p> <p>Limit of Agency of Contbactob—Right of Sttbconteactob.</p> <p>5. In determining the right to a lien under Section 5640, B. & C. Comp., the question of the subcontractor’s profit or loss is immaterial, the right being based on the agency created by the statute, limited by the scope and terms of the original contract.</p>

Prom Sherman: W. L. Bradshaw, Judge. This is an action by R. M. Radley against the Columbia Southern Railway Company to recover damages for an injury the plaintiff received in jumping from one of the defendant’s locomotives upon which he was riding. The defendant owns and operates a railroad from Biggs Station, on the line of the Oregon Railroad & Navigation Company, south to Shaniko.

From Marion : Henry H. Hewitt, Judge. This suit was instituted some ten years ago by W. P. Miller against Vallier Wattier, substitutions having since been made as to both parties; its purpose being to have the defendant declared to hold the legal title of lot No. 3, section 7, township 6 south, range 1 west, Willamette Meridian, containing 55.22 acres, in trust for plaintiff.

From Clatsop: Thomas A. McBride, Judge. This is a suit by Clara S. Carlyle against Katherine E. Sloan and Chas. K. Henry to remove a cloud from title and to enjoin the defendants from trespassing upon or asserting any claim to certain real property.

<p>From Columbia: Thomas A. McBride, Judge.</p> <p>The plaintiff, the Security Savings & Trust Company, having a mortgage upon the rights of way, lands, tenements, franchises, and property of the defendant, the Goble, Nehalem & Pacific Railroad Company, and also a chattel mortgage upon its personal property and effects, instituted this suit August 9, 1901, to foreclose, and A. L. Maxwell was appointed receiver. A decree of foreclosure was rendered October 15,1901, and on December 16,1901, under an execution and order of sale duly issued, the Security Company bid in the property for $35,000, being less than the amount found due upon the mortgages, and on February 3, 1902, the sale was regularly confirmed. On December 21, 1901, T. C. Watts and others, having performed work and labor for the defendant company prior to the commencement of the suit, filed intervening petitions, praying an order directing the receiver to pay their claims. On February 3, 1902, William Meacham and others, and on July 7th following, Etta Spencer and others, having performed similar services, intervened with like prayer for rélief, all claiming preference in payment over the mortgages of the Security Company. Appropriate answers were made to these petitions, and upon the issues thus formulated and the evidence adduced the trial court made findings of fact; among others the following:</p> <p>“(2) That said claims and amounts were for labor and services rendered and supplies furnished by said parties to said railroad company, at its special instance and request, within 90 days next before the appointment of the receiver herein, and were necessary to the operation of said railroad, and said sums are justly due said parties.</p> <p>‘■■(3) That the Goble, Nehalem & Pacific Railroad Comr pany was organized and incorporated under the laws of the State of Oregon, with its principal office and place of business at Portland, and its objects, among other things, were to construct, build, acquire, own, operate and maintain railroads ; to engage in the business of carrying and transporting for itself and others, for hire, passengers, logs, freight, and goods, wares, and merchandise in the states of Oregon, Washington, and elsewhere; that the railroad which it proposed to build was to be from a point on the Columbia River near Goble, in Columbia County, Oregon, to a point on Nehalem Bay, near the Pacific Ocean; that it had constructed said road a portion of the way, and at the time of commencement of this suit and appointment of the receiver, and for about five months prior thereto, was engaged in the operation of said railroad, and in getting out logs for transportation by its railroad, and its principal business was in getting out logs and transporting them over said railroad and selling the same.</p> <p>“(4) That during the time of the operation of said railroad as aforesaid its earnings were more than sufficient to pay all its operating expenses, including the claims of petitioners, but there was paid out of such earnings upon the plaintiff’s mortgage, and for improvements of the road, more than sufficient to pay all of such claims.”</p> <p>As one of its conclusions of law, the court found that petitioners were entitled to preference over the mortgages of the Security Company, and to receive out of the sale proceeds of the railroad and other property covered thereby the respective sums found due them, together with interest from August 9, 1901. From the decree entered in pursuance of these findings the plaintiff and the receiver appeal.</p>

From Multnomah: John B. Gleland, Judge. Mandamus proceeding by J. R. Boyd against F. I. Dunbar, as Secretary of State, to compel defendant to draw a warrant in favor of plaintiff on the State Treasurer. From a judgment granting the writ, defendant appeals.

From Malheur: Morton D. Clifford, Judge. This is a suit by W. P. Beers and another against I. W. Sharpe to enjoin interference with the flow of water in a slough in excess of a given quantity.

From Marion: Reuben P. Boise, Judge. This is a suit by L. H. McMahan against Walter Whelan and the sheriff of Marion County to require the specific performance of a verbal contract of leasing, and to enjoin the enforcement of a judgment given and rendered by the circuit court upon an appeal from a judgment obtained in the justice’s court in an action for forcible ehtry and detainer.

From Coos : James W. Hamilton. Judge. Action by Louis Ringue, acting through a guardian ad litem, against the Oregon Coal & Navigation Company, resulting in a verdict and judgment for defendant.

From Baker: Robert Eakin, Judge. Action by the La Grande Investment Company against F. L. Shaw. Plaintiff and defendant entered into a contract of date September 8, 1900, under the terms of which, plaintiff executed a deed to an undivided half interest in 10 alleged quartz and placer mining claims in favor of the defendant, and an assignment to him of a certain contract between C. G. Green and Wm.

From Multnomah: Alfred F. Sears, Jr., Judge. This is a suit by Louisa Schwartz and her unmarried sister, Anna Gerhardt, against their father, Martin Gerhardt and his present wife, to declare a constructive trust in certain specific realty, and for an accounting of sundry funds. The plaintiffs, Louisa Schwartz and Anna Gerhardt, are the children of the defendant Martin Gerhardt, and the stepdaughters of Frieda Gerhardt, his wife.

<p>Legislative Journals—Statutes.</p> <p>1. Courts in Oregon will not question the enactment of an enrolled legislative hill, properly signed and filed, except to ascertain whether the records of the legislative bodies show that the constitutional requirements have not been fulfilled; and unless it affirmatively appears that the mandatory provisions of the constitution have been disregarded, the law will be sustained.</p> <p>Judicial Notice of Municipal Ordinances and Journals.</p> <p>2. Municipal courts, and the circuit courts on trials de novo on appeal from them, will take judicial notice not only of the ordinances of a city, but of such journals and records of the common council as affect their validity, meaning, and construction, just as state courts take official notice of the public statutes of the State and the journals of the legislature.</p> <p>Proceedings of Common Council—Showing Irregularity.</p> <p>3. To impeach an apparently regular municipal ordinance, it must affirmatively appearfrom the records which the charter requires to be kept (mere silence of the record not being sufficient) that the charter provisions relative to the adoption of ordinances have not been complied with.</p> <p>Method of Keeping Minor Records not Require,d by Charter.</p> <p>4. Minor records of a municipal council, not prescribed by the charter, but made by direction of that body for its guidance, may be kept as it may direct, as, for example, by entering the votes on slips and pinning them to the ordinances, and need not be entered in the journal.</p> <p>Municipal Power Under Charter to Suppress Lotteries.</p> <p>5. The power to suppress gaming and gambling houses is broad enough to sustain a prohibition against keeping any place for the purpose of selling lottery tickets.</p> <p>Sufficiency of Penal Ordinance—Lotteries.</p> <p>G. A penal ordinance is sufficient if it prohibits certain acts and imposes a penalty for commiting them, it need not necessarily declare them unlawful in terms.</p> <p>Ordinances—Necessity of Attesting.</p> <p>7. The signing or attesting of an ordinance by the city auditor is not essential to its validity, in the absence of a charter requirement.</p>

From Multnomah: John B. Gleland, Judge. Action by Maud Marie Stringham against the Mutual Life Insurance Company of New York.

From Multnomah: Arthur L. Frazer, Judge. This is an action by the North Pacific Lumber Company to recover from Spore & Robinson and Hansen & Landon the value of certain building material. It is alleged in the complaint, in effect, that, at all the times mentioned therein, plaintiff was a corporation; that the defendants, Cornelius L. Spore, Henry 0.

<p>Construction of Mining Agreement—Revocability.</p> <p>1. An agreement by which an owner of a mining claim grants to another an option to purchase it on certain terms, with the privilege of further prospecting and mining thereon during the life of the option, Is a license coupled with an interest, and becomes irrevocable when the licensee has taken possession and made expenditures in reliance on it.</p> <p>Construction of Mining Lease.</p> <p>2. Under an agreement between a mine owner and a prospective purchaser, providing that the grantee may purchase by a stated time, that in the meantime he may prospect and mine on the premises; that all ore found of sufficient richness to be milled and shipped, shall be delivered to the grantor and sold, the “net proceeds” of which shall be applied on the purchase price, the costof mining such ore should be allowed the grantee in ascertaining the “net proceeds,” regardless of the form of action in which the question appears.</p>

From Benton: James W. Hamilton, Judge. Suit by the Coast Land and Livestock Company against the Oregon Pacific Colonization Company and others. From an order overruling a motion to set aside a default decree and to quash the return of summons the corporation appeals.

From Klamath: Henry L. Benson, Judge. The County Court of Klamath County having established- a public road as petitioned for by Caleb T. Oliver, a review was prosecuted by Geo. L. Lesley and Geo. W. Offield to the circuit court. The-writ was dismissed, whereupon the proceeding was brought to this court.

From Columbia: Thomas A. McBride, Judge. Writ of review by Kinder C. Farrow and others against Allen Nevin, as administrator of the estate of John Farrow, deceased. From a judgment in favor of plaintiffs, defendant appeals.

From Marion: George H. Burnett, Judge. This.is an action by John Hoefer and Casper Zorn, partners as Hoefer & Zorn, against T. A. Livesley and John J. Roberts, partners as T. A. Livesley & Co., to recover damages for the alleged conversion by the defendants of fifty-two bales of hops.

From Multnomah: John B. Cleland, Judge. This is an action by George R. Brett against Robert Z. and John W. Warnick and the Grand Lodge of the Ancient Order of United Workmen of Oregon to compel the delivery to plaintiff of a benefit certificate by the defendants War-nick, and to recover of the defendant lodge the sum named therein.

From Marion: George H. Burnett, Judge. Action by R. G. Keene against Z. T. Smith, in which ' the Secretary of State was served with notice of garnishment as to Smith’s wages due from the State of Oregon. From an order dismissing the garnishment, this appeal is taken.

<p>Filing Cost Bill—Disbursements on Appeal.</p> <p>Section 568 oí B. & C. Comp, as amended in 1903 (Laws 1903, p. 209, § 1), referring to cost bills, applies to disbursements only. The statutory attorney’s fee and the filing fee on appeal are collectible under other sections of the code, and are not affected by section 568: MeFarlane v. McJTarlane, 43 Or. 477, cited.</p>

From Multnomah: Arthur L. Frazer, Judge. This is a proceeding by Seneca 0. Beach against the Guaranty Savings & Loan Association. It is denominated by plaintiff’s counsel an action at law to recover money had and received to their client’s use, though defendant’s counsel insist that it is a suit in equity for an accounting.

From Clatsop: Thomas A. McBride, Judge. This is an action by the Astoria and Columbia River Railroad Company against Daniel Kern for damages. The plaintiff is the owner and engaged in the operation of a railway, that portion of its track within the eastern and western limits of the City of Astoria being constructed upon piles over and along the shore of the Columbia River, between high and low water.

From Multnomah: Arthur L. Frazer, Judge. This is an action by Marie Stewart Whigham against the Supreme Court of the Independent Order of Foresters, which is a fraternal and beneficial society organized and incorporated under the laws of the Dominion of Canada, and having its head office in the City of Toronto.

<p>Treasure Trove.</p> <p>1. Gold-bearing quartz rock found buried in. the ground, where it had evidently been placed several years before, is not “treasure trove” belonging to the State or the finder.</p> <p>Lost or Abandoned Property.</p> <p>2. Quartz rock bearing mineral, found imbedded in the ground, unconnected with any ledge, pocket, or natural mineral deposit, is presumably part of the soil» jand is not to be classed as lost or abandoned property, even though there were evidences that the rock hac^ formerly been in a cloth sack.</p>

From Multnomah: Arthur L. Frazer, Judge. This is an action by the firm of Lenz & Lenz against Blake, McFall Company to recover a balance alleged to be due on account of the sale of paper boxes.

From Multnomah: Melvin C. George, Judge. This is an action by George Good, a real estate broker, against W. K. Smith, to recover a commission.

<p>Divokce—Mutual Fault.</p> <p>A divorce should not be granted when the parties have mutually contiibuted to the conditions complained of.</p>

From Klamath: Henry L. Benson, Judge. Suit by John P. Robertson against S. B. Low.

From Multnomah : Melvin C. George, Judge. This is an action by the Sam J. Gorman Company, a private corporation, against P. J. McGowan & Sons, also a private corporation, upon a stated account.

From Marion: Reuben P. Boise, Judge. Suit by H. A. Johnson and others against the Washington National Building, Loan and Investment Association to procure the cancellation of a mortgage. Defendant appeals. The case was submitted on briefs, under the proviso of Rule 16 of the supreme court: 35 Or. 587, 601.

From Multnomah: Melvin C. George, Judge. This is a suit by Peter Hobkirk against the Portland National Baseball Club and others, and the Hawthorne Estate, for the foreclosure of a mechanics’ lien. From a decree in favor of plaintiff, the Hawthorne Estate appeals.

From Multnomah: Melvin C. George, Judge. This is a suit by M. Merriman Houston and others against John A. Zahm and another to compel the specific performance of a contract to open and maintain a highway, made and entered into February 25, 1891, between L. D. Brown, Sherman D. Brown, and the Peninsular Real Estate Company on the one part, and the Portland University on the other.

<p>From Linn: Reuben P. Boise, Judge.</p> <p>Suit by Laura Ella Froman against Thomas Froman, in which defendant prevailed.</p>

<p>From Marion: Reuben P. Boise, Judge.</p> <p>Suit by W. J. Irwin against the Washington National Building, Loan & Investment Association, resulting in a decree from which defendant appealed.</p>