Volume 51 — Oregon Reports

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Chief Justice Bean. This is a proceeding instituted in the county court of Umatilla County to have the probate of the will of Cynthia A. Turner revoked and the .will set aside. The will was executed October 7, 1901, and the testatrix died August 30, 1905. At the time of her death she left surviving her, seven children and one grandchild.

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Justice Eakin. This is a suit for divorce and alimony. Defendant W. P. Sturgis was adjudged a spendthrift by the county court of Umatilla County in 1905, being then 24 years old, and Jas. A. Fee was appointed the guardian of his person and estate, which was of the value of about $10,000.

From Multnomah: Alfred F. Sears, Judge. Statement by Mr. Justice Eakin. Plaintiff, by his guardian ad litem, brought this action to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals. Defendant is a corporation operating a mill at St. Johns, Or., for the manufacture of the material for boxes, baskets, furniture, etc, by the use of various machines operated by steam power.

From Multnomah: Melvin C. George, Judge. This is a suit by William C. Smith against Benjamin F. Smith, involving the title to two lots in block 21, Highland, Multnomah County, Oregon. The defendant claims to be the sole owner, by virtue of a deed purporting to have been executed on the 21st day of May, 1901, by H. A. Smith and wife, which deed is neither witnessed nor acknowledged, and contains unexplained erasures. From a decree in favor of defendant, plaintiff appeals.

From Polk: George H. Burnett, Judge. Statement by Mr. Justice Moore.

<p>Assumpsit, Action or — Pleading.</p> <p>1. Where the complaint iu an action of assumpsit for money had and received, fails to allege that the money intrusted to defendant was the property of plaintiff, or that there was any consideration for the transaction, and the absence of such averment is supplied by the answer, from which it can be clearly inferred that the money was the property of plaintiff, the defect will be cured by a verdict for plaintiff.</p> <p>Action — Waiver or Tort.</p> <p>2. In an action for money received, for money given to defendant to invest with his own, with which he purchased a mortgage, selling the mortgage without accounting to plaintiff for the proceeds, the claim in tort can be waived, and the action brought on implied contract.</p> <p>Assumpsit, Action os’ — Grounds.</p> <p>3. In assumpsit for money received and converted by defendant, although it is claimed that the proof merely shows defendant to have been plaintiff’s agent, and that the action should have been ex delicto and not ex contractu, the right to elect to proceed on the contract and to waive the tort, is the privilege of plaintiff, and not of defendant, and.having so elected she is entitled to have the. verdict construed to support the judgment, if possible.</p> <p>Evidence — Documentary Evidence — Letters—Alterations.</p> <p>4. Letters with alterations in immaterial parts are admissible in evidence without accounting for the alterations under Section 800, B. & O. Comp., providing that a party introducing a writing altered as to a material part shall account therefor.</p> <p>Appeal — Admissions—Harmless Error — Evidence.</p> <p>5. In assumpsit for money had and received, the error of admitting in evidence a draft for $125 sent to plaintiff and containing the initials of defendant’s name, without further identification to show a payment of the amount of the draft, was harmless, where defendant admitted the payment to plaintiff of that amount.</p>

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Commissioner Slater.

From Multnomah: Arthur L. Frazer, Judge. This is an action by Henry M. Wagner against S. L. Goldschmidt to recover $500 as commission on sale of real estate. From a judgment in favor of plaintiff for the full amount, defendant appeals. Pending such appeal and without the knowledge of their attorneys, the parties settled their differences, and plaintiff acknowledged satisfaction in full of the judgment recovered on the judgment lien docket.

From Multnomah: CALVIN U. GANTENBEIN, Judge. This is an action by William A. Finn against the Oregon Water Power & Railway Company to recover damage for a personal injury. From a judgment in favor of defendant, entered on a motion for a nonsuit, plaintiff appeals.

<p>Raidroads — Kidding Stock — Fences—Ponds.</p> <p>1. Section 4342, B. & O. Oomp., subd. 7, provides that all ponds or other natural obstructions, “if equally secure against the trespass of any domestic animals, or made so by artificial means,” shall be deemed lawful fences, and Section 5140, requiring railroads to fence their tracks, declares that complete natural defenses against the entrance of stock on the track, such as natural walls or deep ditches, shall be deemed a fence under the act. Held, that where a railroad’s right of way crossed a pond 314 feet deep, through which plaintiff’s horse escaped onto the right of way and was killed, whether such pond was to be deemed a lawful fence was for the jury.</p> <p>Same — Faidure to Fence Track — Pdaoe oe Entry.</p> <p>2. In an action under Sections 5139-5144, B. & O. Comp., making railroad companies liable for killing or injuring livestock on an unfenced track, it is not necessary to allege or prove entry on the track at a particular place, except whore the stock is killed at a point where the railroad company is not required to fence.</p> <p>Same — Evidence—Negdigence.</p> <p>3. When it was alleged and proved that a railroad company failed to fence its track, and that plaintiff’s stock was killed or injured on or near such unfenced track by a moving train, the railroad’s negligence was established, and a recovery could be defeated only by proof of contributory negligence.</p> <p>Same — Immediate Cause ov Injury.</p> <p>4. Where plaintiff’s horse strayed on defendant’s unfenced railroad track, it was immaterial to defendant’s liability whether the horse was struck by a train and thrown onto a fence and injured, or whether he was so frightened that he jumped on the fence in an effort to escape from the train.</p> <p>Evidence — Oiroumstantiad Evidence — Weight.</p> <p>5. Where a fact is sought to be established by circumstantial evidence.it is only necessary that the conclusion desired be the more probable hypothesis, not that it should be the only conclusion that can fairly and reasonably be drawn from the evidence.</p> <p>Raidroads — Injuries to Animads — TTneenced Track — Evidence.</p> <p>(i. Circumstantial evidence held sufficient to support a finding that plaintiff’s horse was on the right of way of defendant railroad company, and was either struck and thrown on a fence by a moving train or was so frightened in his effort to get away that he jumped upon the fence and was killed.</p> <p>Trial — Necessary Proof — Facts Admitted.</p> <p>7. Where, in an action against a railroad company for killing plaintiff’s horse, alleged to have escaped through an unfenced right of way, it was stipulated at the trial that defendant owned and operated the railway at all times mentioned in the complaint, plaintiff was not required to prove that the train which caused the injury belonged to defendant or was operated by it.</p> <p>Same — Nonsuit—Motion—Grounds.</p> <p>8. A motion for a nonsuit must specify the grounds on which it is demanded.</p> <p>Appeal — Review—Motion for Nonsuit — Grounds.</p> <p>9. Where a motion for a nonsuit specified the particulars wherein plaintiff’s evidence was claimed to be insufficient, the Supreme Oourt would not consider other and additional assignments of insufficiency on appeal.</p>

From Tillamook: George H. Burnett, Judge. Appeal by Rebecca Crawford, widow of Robert Crawford, deceased, from an order of the circuit court dismissing an appeal from the county court on final settlement and distribution of the estate, denying the widow any portion of her husband’s estate.

<p>Compromise and Settlement — Fraud—Information—Ditty to Disclose.</p> <p>1. Where there is no relation of trust or confidence existing between the parties to a compromise, which would impose on one an obligation to give full information, and no artifice or fraud is employed to lull the other to repose, he cannot omit all investigation, and then complain that the former did not volunteer information he possessed, which, if disclosed, would have prevented the settlement.</p> <p>Same — Record—Notice.</p> <p>2. Where a county was a party to a suit to remove certain tax titles as a cloud on title, it was bound by the record, and charged with notice that a decree dismissing the suit had been affirmed on appeal, prior to the execution of a compromise.</p> <p>Counties —Taxation —Sales —Delinquent Taxes — Compromise by County.</p> <p>3. When property charged with delinquent taxes was sold on foreclosure of the tax lien to the county, the county officers had power to effect a valid compromise and settlement with the taxpayers by which a portion of the taxes were remitted.</p> <p>Compromise and Settlement — Vacation—Fraud.</p> <p>4. Certain property belonging to a trustee was sold to the county for unpaid taxes. The trustee and the heirs sued the county to cancel the tax certificates as a cloud on title. This suit was dismissed and the decree affirmed on appeal, after which the trustee filed a petition in the county court, alleging that the taxes were invalid and offering a compromise, which the county court accepted. The county thereafter filed a complaint to set aside such compromise, alleging that the trustee did not inform the county court that the decree in the prior suit had been affirmed, and that the assessments were valid, that the taxes were legally imposed, and that the order setting aside the tax sales was void. Held that, as the trustee was under no obligation to impart to the county court information that the decree had been affirmed, and the complaint failed to allege any fraud in the settlement, it did not state a cause of action.</p>

<p>Attorney and Client — Lien for Services — Enforcement—Powers ■of Court.</p> <p>1. Though there may be no attorney’s lien on the cause of action, either by contract or by statute, the court may, in its discretion, protect the same, where it can see that, through the exercise of the usual powers vested in a court over its judgment, it may aid the attorney in collecting his fees.</p> <p>Same — Notice of Lien.</p> <p>2. "Where plaintiff’s attorney has some interest by way of lien on the judg- _ ment, or by way of an equitable assignment of a part of the cause of action, upon giving proper notice, the court is bound to protect such interest.</p> <p>Same — Assignment of Cause of Action.</p> <p>8. Before judgment, in the absence of any agreement, an attorney has no lien on or interest in the cause of action; but, if the cause of action before judgment be assignable, the owner may by agreement create an interest therein, and such agreements may be'made with attorneys.</p> <p>Same — Agreement for Contingent Fees.</p> <p>4. Without an express stipulation to that effect, an agreement for contingent fees will not operate as an assignment of an interest in the cause of action.</p> <p>Same — Equitable Assignment.</p> <p>5. An oral agreement by the owner of the legal title to land to give his attorney one-half the land, if the latter succeeded in removing by suit a cloud on the title, is not an equitable assignment of a part of the cause of suit.</p> <p>Same — Statutory Provisions — Notice.</p> <p>6. Under Section 1063, B. & O. Comp., providing that an attorney has a lien for his compensation upon a judgment or decree to the extent of the costs included therein, or if there be a special agreement, to the extent of the compensation definitely agreed on, from the giving of notice to the party against whom the judgment or degree is given, etc., the right to the lien depends on notice.</p> <p>Sami: — Waiver or Lien.</p> <p>7. The right to claim the benefit of the lien given an attorney by Section 1(163, B. & O. Oomp., on the judgment for his compensation, may be waived by taking or agreeing to take other security. Section 1063, B. & ('. Comp., gives an attorney a lien for his compensation on a judgment or decree to the extent of the costs included therein, from the giving of notice to the party against whom the judgment is rendered. The owner of the legal title to land orally agreed to give, half the land to his attorney, if the latter would by suit remove a cloud on the title, but before the termination of the suit, dismissed the same under an agreement of settlement whereby he conveyed the land to the defendant in the action. Held, that when the attorney contracted to take the land for his fee, and gave no notice of an intention to claim a lien under the statute, he waived all right thereto, and, having been deprived of the land, could not ask the aid of the court to allow him to proceed with'the suit, so that he might perfect the lien to the extent of the costs.</p> <p>Fraudulent Conveyances — Suit to Set Aside.</p> <p>8. The owner of the legal title to land orally agreed to give his attorney half of the land if the attorney succeeded in removing by suit a cloud on the title thereto, but, before the termination of the suit, dismissed the action, under an agreement of settlement, whereby he conveyed the land to the defendant in the action, who took with notice of the grantor’s intention to defraud the attorney of his fees. Held, that the attorney’s claim for the value of his services or for damages suffered by the breach of contract, when reduced to judgment, would form a legal basis for a suit to set aside the deed as in fraud of creditors; his client being insolvent when the deed was made.</p>

<p>Witnesses — Evidence.</p> <p>Where plaintiff, on cross-examination, admitted that she had made mistakes in her direct examination, and when her evidence is taken in connection with the circumstances related by other witnesses for the plaintiff, lead to the belief that the testimony they gave at the trial was made up for the occasion, the suit should have been dismissed.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. Statement by Mr. Chief Justice Bean. The defendant is a domestic corporation, having its principal office and place of business in Astoria, Clatsop County. On March 12, 1904, plaintiff commenced an action against it in the justice’s court for Portland district, Multnomah County, on a cause of action arising in Clatsop County, and caused summons to be served upon defendant in the latter county.

<p>Pleading — Complaint—Motion to Make More Definite — Husband and .Wife — Alienation of Affection.</p> <p>1. It is fiot error to. overrule a motion to make more specific a complaint alleging that defendant “seduced” plaintiff’s wife and enticed her away, where plaintiff’s counsel stated that he intended to charge adultery by defendant and plaintiff’s wife, whereupon defendant’s counsel remarked, “That is all I want to know,” and the case was tried on the theory of the explanation given.</p> <p>Words and Phrases — “Seduce.”</p> <p>2. The word “seduce,” when used to denote the conduct of a man toward a woman, is generally understood to mean the use of some influence, promise, arts, or means on his part by which she is induced to surrender her chastity to his embraces.</p> <p>Trial — Reception of Evidence — Showing Grounds for Admission.</p> <p>3. A witness, becoming ill during cross-examination, was excused for the time, and afterward her physician was asked, “What is her condition, and what is its cause, if you can tell?” Held that, as the question did not suggest the answer desired, and counsel did not state that he expected to show by the expected answer that her illness was real, and not simulated, in order to avoid further cross-examination, sustaining an objection to the question was not error.</p> <p>Appeal and Error — Record—Grounds of Review.</p> <p>4. Error, if any, in overruling an objection to remarks of counsel,is not available, where the exceptions do not show that the remarks were not a proper answer to remarks by the opposing counsel.</p> <p>Husband and Wife — Alienating Affections — Matters to be Shown.</p> <p>5. To maintain an action for the alienation of the affections of plaintiff’s wife, and enticing her away, it is not necessary to show that defendant had sexual intercourse with her.</p>

From Multnomah: Arthur L. Frazer, Judge. The Oregon Electric Railway Co. commenced a proceeding against the Terwilliger Land Co., a corporation, to condemn certain lands for a railroad right of way.

<p>'Usury— Defense — Necessity of Plea.</p> <p>1. Plaintiff sued on a note for $2,025, alleging a balance of $625.95 due, with interest, etc. Two of the defendants answered, admitting the execution of the note, and alleging that in addition to the indorsements, admitted they had paid $500, which plaintiff had neglected to credit, and prior to the action had tendered $350.20 in full payment of the debt, when but $160.89 was due. The reply denied the new matter pleaded, and on the trial plaintiff proved that the $500 had been paid without any application, and that plaintiff had applied it to a debt of that amount which defendants had agreed to pay as extra compensation for plaintiff’s agreement to extend payment until certain mining claims, mortgaged to secure the debt, had been sold. Meld, that defendants were entitled to presume that the only question involved was the payment of the $500 as alleged, so that they had no opportunity to plead usury, prior to the raising of the issue at the trial, and were therefore not barred from such defense, because it was not pleaded.</p> <p>Payment — Apblication—Nature of Debt.</p> <p>2. Where a debtor owes more than one debt to a creditor, the creditor is bound to follow the debtor’s directions as to the application of payments, but in the absence of any direction, may apply the payment to any lawful demand, excluding a spurious or a pretended claim, an immoral one, a gambling contract, or usury.</p> <p>Usury — Amount of Interest.</p> <p>3. Under Section 4595, E. & C. Oomp., alloying a charge of 10 per cent interest for the use of money, a payment of $500 for the use of $2,025 for 2 years, 5 months, and 19 days, would not have been usury; but, the entire money not having been retained for that length of time, the charge became usurious.</p> <p>Interest — Maturity of Debt — Rescission of Usurious Contract.</p> <p>4. Defendants agreed to pay plaintiff $2,025 on or before five years from March 19,1897, secured by a mortgage on certain mining claims, providing that on a sale of the premises the debt should be at once payable. The claims were sold August 25,1908, when the obligation matured, and thereafter bore interest at 6 per cent. On March 19,1902, it was orally agreed that in consideration of $500 extra compensation, the mortgage debt might be deferred until the claims were sold. Plaintiff sued for a balance of $625.95, having applied a payment of $500 on the extension agreement. Defendants deposited $160.89, which they permitted plaintiff to recover. Meld, that defendants’ concession that the sum deposited was due to plaintiff, was a rescission of the usurious agreement to pay $500 for plaintiff’s forbearance, and thereby entitled plaintiff to interest at 6 per cent from March 19, 1902, when the note matured, instead of August 25, 1903, when the mining claims were sold.</p> <p>Tender — Nonaooeptance—Keeping Tender Good.</p> <p>5. Where defendants made a written offer to pay plaintiff more than was due him, but only deposited with the clerk a sum less than plaintiff was entitled to recover, the tender was not kept good.</p>

<p>Mechanics’ Liens — Notice—Natube of Woek.</p> <p>1. Section 5640, B. & C. Comp., provides that every person performing labor on or furnishing material in the alteration or repair of any building, shall have a lien thereon; and Section 5644 requires the filing of a claim containing a true statement of the claimant’s demand, together with certain other facts. Held, that a notice of a claim for lien for certain materials and labor furnished for S., to be used and which were used in alteration and repair of certain electric wiring and in making connections in and about the building, which was situated on the land described, should be construed to aver that the alteration, repair, and connections were made in and about the building, and was therefore sufficient to make a prim a facie case for a lien.</p> <p>Same — Right to a Lieu — Nature of Improvement — Bi/ectic Wiring.</p> <p>2. Where electric wires are inserted in a building so as to indicate an intention to make them fixtures, they become the property of the owner of the building, and may therefore be the proper subject of a mechanic}’s lien, under Section 5610, B. & C. Oomp.</p>

<p>Municipal Corporations — Actions — Conditions Precedent — Presentation of Claims — Itemizing and Verification — Pleading.</p> <p>Under the charter of the city of Salem, Section 13 (Laws 1899, p. 932) providing that no claim against the city shall toe paid until it has first toeen itemized and verified toy affidavit oí claimant, etc., the itemizing and verification of a claim presented against the city are conditions precedent to the city’s liability, and a complaint not alleging that the claim was itemized and verified when presented, was defective on demurrer. ,</p>

<p>Partnership — Holding- Out as Partner — Liability for Partnership Debts.</p> <p>1. Where there is no contract of partnership between two persons associated in business, and a third person, performing services at the instance of one of them, has no contract with the other, she cannot recover against the other person, except upon proof that he was by his consent held out as a partner, that she knew of such holding out at the time she rendered the services, and that she performed the work on the faith thereof.</p> <p>Same — Action—Evidence.</p> <p>2. In an action against two persons associated in business for services performed under an agreement with one of them, evidence examined and held not sufficient to support a recovery against the person not contracted with, on the theory that he, by his consent had been held out as a partner, and was thereby rendered liable for debts contracted by the other in carrying on the business.</p>

From Marion: George H. Burnett, Judge. Defendant James R. Seeley was convicted of riot, and from the judgment and sentence which followed, he appeals.

From Wallowa: Thomas H. Crawford, Judge. The defendant, James Doris, was convicted of the crime of manslaughter for killing Charles G. Sim, and sentenced to be imprisoned in the penitentiary for the period of ten years, from which he appeals.

From Lane: Lawrence T. Harris, Judge. Jack Berger was convicted of crime and gave notice of appeal in open court, as provided in Section 549, B. & C. Comp. (Civil Code). The State now moves to dismiss the appeal. On Motion to Dismiss the Appeal.

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>Lyman A. Savage died on the 11th day of February, 1898, seised and possessed of a large amount of real property in Marion county, and leaving a will, the material parts of which are as follows:</p> <p>“I, Lyman A. Savage, of Salem, Oregon, being of sound and disposing mind and memory, do make and declare this to be my last will and testament, hereby revoking all wills and testamentary papers at any time heretofore made by me. I give,- devise and bequeath all my real and personal property wheresoever and whatsoever unto my beloved wife, Theresa Jane Savage, for the following uses and purposes; viz.:</p> <p>First: To support and maintain herself as she may desire during her natural life.</p> <p>Second: She may support and maintain my children or either of them, as long as they or either of them, or their wife, husband, or children may desire to reside with her.</p> <p>Third: To keep up the repairs, taxes, and other expenses of said properties or their income or accumulation either in the -management or handling thereof.</p> <p>Fourth: In case she may deem it proper or advantageous or she may so desire, she may at any time or times bargain, sell, and convey all or any part or parts of my real property, and convert the same into money for the use and benefit of my estate.</p> <p>Fifth: She may at any time or times sell and convert into money any part or parts of my personal property for the use and benefit of my estate. After-the death of my beloved wife, Theresa Jane Savage, I give, devise, and bequeath the rest and residue of my said property, both real and personal, remaining at the death of my wife, to my beloved daughter, Grace E. Savage, and my beloved son, Elmer M. Savage, to be divided equally between them, saving and excepting that there shall be deducted from my son, Elmer M. Savage’s share, $2,000, which I have heretofore paid him as an advancement on his share of my estate.”</p> <p>On February 16th the will was duly proved and admitted to probate, and Mrs. Savage appointed executrix. July 29, 1898, the estate was finally settled, and executrix discharged. December 7, 1905, Mrs. Savage contracted to sell a five-acre tract of land devised to her by her husband to one John Gueffroy for $8,700; but, owing to the fact that one of the residuary legatees, Elmer M. Savage, claimed some interest therein, the attorney for the purchaser refused to pass the title, and the sale could not be consummated. Mrs. Savage thereupon commenced this suit against Elmer M. Savage, Grace E. Robbins, legatees under the will, and the purchaser, Gueffory. In her complaint she sets out the will in full; alleges the probate thereof and the final settlement of the estate; describes the real property of which her husband died seised, and avers, that ever since his death she has been in the sole and exclusive possession of such property as the owner in fee, holding it for the uses and purposes set forth in the will; alleges the terms of the contract of sale with Gueffroy, and the reason it was not consummated; avers that defendant Elmer M: Savage wrongfully claims some estate or interest in the property adverse to her, and denies her power or authority to sell the same. The prayer is for a decree requiring him to set forth the nature of his claim, and that it be decreed to be invalid as against the plaintiff. A demurrer to the complaint was sustained, because it did not state facts sufficient to constitute a cause of suit, and plaintiff appeals.</p>

From Columbia: Thomas A. McBride, Judge. Statement by Mr. Commissioner Slater. Plaintiff presented to the county court of Columbia county, a claim amounting to $193.50 for publishing in his paper from March 1, 1905, to the end of that year, the proceedings of that court. The claim was itemized and made a total of 387 inches of printed matter, for which he charged at the rate of 50 cents per inch, making the stated amount.

From Polk: William Galloway, Judge. Statement by Mr. Commissioner Slater. Plaintiff sues in equity to enjoin the issuance of a sheriff’s deed to a purchaser at a sale on an execution issued out of the circuit court of Polk County on a transcript of a justice’s judgment filed therein; to have declared void and canceled of record the transcript of the judgment and the execution thereon, and to cancel the judgment as settled and paid.

From Wheeler: William L. Bradshaw, Judge. Suit by J. B. Nolan against Clyde Hughes, to reform a misdescription in an administrator’s deed, wherein certain lands in Wheeler county were attempted to be conveyed to plaintiff. A demurrer to the complaint being overruled, a decree was rendered in favor of plaintiff, and defendant appeals.

<p>Bailroabs — Injuries at Crossings — Actions—Bvibence—Violating Speeb Orbinanoe.</p> <p>1. In an action for the killing of a person at a crossing, the fact that the engine was travelling 20 or 30 miles an hour across a public grade road in a city where the lawful speed was 6 miles an hour, is a circumstance from which the railroad’s negligence might reasonably be inferred by the jury, especially where, in consequence of obstructions to a view of the train, a person was prevented from seeing a locomotive at any great distance until he came within about 50 feet of the crossing.</p> <p>Same — Violation op Speeb Orbinanoe.</p> <p>2. To authorize a recovery for a personal injury on the ground of a railroad’s negligence in violating a speed ordinance, it must appear that the hurt was caused by the unlawful speed without contributory negligence of the injured person.</p> <p>Same — Bight op Person to Use Bailroab Crossing.</p> <p>3. A traveler on a public road that intersects a railwayat grade, is entitled to use the crossing, subject to the railroad company’s superior right of way, to which, when he has notice of the approach of a train, he must yield.</p> <p>Same — Duty to Look anb Listen.</p> <p>4. A traveler, before undertaking to cross a railroad, must look along the track in each direction for an approaching train, and if the view is at all obstructed, he must listen, and if he fails to do so without a reasonable excuse, he is negligent.</p> <p>Same — Violation op Speeb Orbinanoe — Presumption That Trains Bun at Legal Bate.</p> <p>5. In the absence of evidence to the contrary, a person approaching a railroad crossing in a city, may presume that the railroad will not run its trains at a greater rate of speed than allowed by the city ordinance.</p> <p>Same.</p> <p>6. Whether decedent, killed at a railway crossing, was negligent at the time, held, under the evidence, for the jury.</p> <p>Same — Tbiau—Questions eob Juby.</p> <p>7. Though the negligence of one party cannot be set up by the other as an excuse for the. want- of care on his part, yet when, in an action for a personal injury, it appears from plaintiff’s testimony that the harm was caused by the negligence of the defendant railroad in operating a train, a judgment of non-suit should not be given unless it is manifest that the person injured was negligent.</p> <p>Railroads — Injuries at Crossings — Pleading—Reasonableness of Ordinance.</p> <p>8. It will be presumed that ordinances regulating speed of trains within a city are reasonable, and in an action for an injury resulting from a violation of such ordinance, it is not necessary for plaintiff to state in the complaint that the ordinance in question was suitable to the place where the injury occurred.</p> <p>Same — Municipal Regulations -Power to Regulate.</p> <p>9. Where no unreasonable extent of territory is included in a city, ancl there are public streets and road crossings through the sparsely settled portions that cross the tracks of railroads, the city has the right by ordinance, for the protection of the public, to regulate the speed of trains to a reasonable limit.</p> <p>Same — Injuries at Crossings — Violation of Speed Ordinance — Presumption as to Compliance.</p> <p>10. A person injured at a railroad crossing of a city street has the right to presume that a train will not be run at a rate of speed exceeding the limit prescribed by the ordinance.</p> <p>Same — ICnowledge of Violation.</p> <p>11. Where one injured at a railroad crossing lived about two miles therefrom, this distance was so remote that he was not chargeable with knowledge of the time the train in question usually crossed the road, or of the speed which it generally made at that place, though the velocity on the day of the accident and the injured person’s departure from his home on that day were usual.</p> <p>Same — Question for Jury — Reasonableness of Signal by Approaching Train.</p> <p>12. In an action for an injury at a railroad crossing, the question whether or not the notice of the approach of a train by sounding a whistle was reasonaable, was for the jury.</p> <p>Courts — Appeal— Decision — Form—‘ ‘ Supposed . ’ ’</p> <p>13. In an action for an injury at a railroad crossing, the testimony did not disclose whether or not the engineer saw the team of plaintiff’s intestate on the track, as intimated, and on appeal the court in its decision stated: “If the facts thus supposed were true, and the engineer, seeing the team standing on the track under the circumstances mentioned, immediately used all available appliances to stop the train, the question of such care would nevertheless be for the jury to determine.” Held, that the word “supposed” was advisedly used, and was not objectionable as authorizing a judgment to rest on conjecture.</p>

<p>Sales — Contracts—Rights of Buyer — Performance,.</p> <p>A contract for the sale of hops required the buyer to make advances on the price, to enable the sellers to pay certain expenses, the advances to be credited on the price. There was no agreement that the sellers should repay the advances, or that they should give notes therefor. The contract was made to enable one of the sellers to obtain money with which to produce the hops sold. It was not contemplated that the other sellers should obligate themselves for the money to be advanced by the buyer. Held, that the buyer on refusing to make an advance as required by the contract, unless the. sellers would execute to him their-note therefor, violated the terms of the contract, and he could not enforce it.</p>

<p>OAsro®iiX.ATioi<r or Instb-umeiíts — Evidence.</p> <p>In a suit brought to annul and set aside a deed, plaintiff has the burden oí proof, and must establish the facts sufficient to justify a decree in his favor by clear and explicit evidence.</p>

From Coos: Lawrence T. Harris, Judge. Statement by Mr. JUSTICE MOORE. This is a suit by M. E. Hall against Eugene O’Connell, W. W. Gage, Stephen Gallier and Coos County, to enjoin the prosecution of an action at law and to correct certain public records that have been altered.

<p>Pabtnebship — Actions Between Pabtnebs.</p> <p>1- As a general rule, an action at law will not lie in favor of one or more partners against one or more copartners on a demand growing out of a partnership transaction, until there has been a settlement of account and balance struck.</p> <p>Same — Dissolution oe Pabtnebship — Natube oe Settlement.</p> <p>2. Parties entered into a partnership to buy timber land and dispose of the timber thereon, the agreement being that the timber should belong to them as partners, and, when the logging was completed, one of them should own the land, and that they should equally share the profits and losses. In pursuance of this agreement, they established a logging camp, and, after cutting a large amount of timber, they ceased operations and had a settlement of their partnership affairs up to that time, paying all the expenses and indebtedness, after which they divided the profits, and plaintiff sold to defendant his half interest in the remaining timber for a stipulated price per 1,000 feet. Held, that this transaction effected a dissolution of the partnership..</p> <p>Same — Action.</p> <p>3. Where there has been a complete accounting of all partnership matters and the sale by one of the copartners to the other of his interest in the remaining property for a stipulated sum, an action at law will lie to recover the price agreed on, although no definite time for payment was fixed.</p>

<p>Waters and Water Courses — Conveyances.</p> <p>1. A parol sale of land and appurtenant water rights for a consideration, and a surrender of possession thereof to the purchaser, creates an equitable estate in the water rights, which a court of equity is bound to prote'ct.</p> <p>Injunction — Rights in Property Protected.</p> <p>2. One in possession of land under an equitable title can maintain a suit for an injunction for the protection of his possessory rights.</p> <p>Specific Performance — Contracts Bnforceabde.</p> <p>3. Possession of premises by the purchaser in connection with full payment of the purchase money is sufficient to entitle, him to specific performance.</p> <p>E auiTY — Jurisdiction.</p> <p>4. A court of equity is hound to protect an equitable, as well as a legal, estate.</p> <p>Waters and Water Courses — Appropriation—Actions to Protect Rights.</p> <p>5. A court of equity will grant an injunction to protect a water right appurtenant to land held under an equitable title.</p> <p>Same — Abandonment.</p> <p>6. A parol sale of land, the title to which has passed out of the. government, and appurtenant water rights, for a consideration, and a surrender of the possession thereof to the purchaser to whom a conveyance is to he executed, is not an abandonment of the vendor’s water rights.</p> <p>Same.</p> <p>7. A transaction which fails as a sale cannot ho converted into an abandonment. There is no such thing as an abandonment to a particular person or for a consideration.</p> <p>Abandonment — Intent.</p> <p>8. To constitute an “abandonment” of property there must he an intent to abandon, which may be inferred from acts and declarations.</p> <p>Waters and Water Courses — Conveyances.</p> <p>9. In the absence of proof to the contrary, it will be presumed that water rights indefinitely described in a transfer as “any water right belonging to” a certain irrigation ditch, are either rights reserved by the grantor in a prior transfer of particularly described rights or new rights initiated by him, and, if he has abandoned such rights before making the subsequent transfer, it conveys nothing.</p> <p>Same — Actions to Protect Rights — Evidence.</p> <p>10. In an action for an injunction to protect water rights, evidence considered, and held sufficient to establish a prior appropriation by plaintiffs.</p> <p>Same — Appropriation—Prescription.</p> <p>11. A prescriptive right to the use of water is not acquired by taking water with the permission of the owner of the superior right.</p> <p>Same — Notice of Rights Invaded.</p> <p>12. No adverse user of a water right can he initiated until the owner of the superior right is deprived of the benefit of its use in such a substantial manner as to notify him that his rights are invaded.</p> <p>Action to Peotect Rights — Defenses.</p> <p>13. A claim of title to a water riglit by adverse user is inconsistent with the defense by the claimant that his use results in no injury to a superior appropriator seeking to enjoin such use.</p>

From Harney: George E. Davis, Judge. Statement by Mr. Chief Justice Bean. This is. a controversy between the settlers in Otis Valley ' over the waters of Otis Creek and its tributaries. Otis Creek arises in the Blue Mountains, flows in a general southerly direction for a distance of 10 to 15 miles, and discharges into the Malheur River. Warm Springs Creek and Cottonwood Creek are tributaries of Otis Creek from the east.

<p>Pleading — Defenses—Inconsistent Defenses.</p> <p>1. In a suit to restrain the use of water, claims by defendants, as riparian owners, and by adverse user, are not inconsistent.</p> <p>Public Lands — Entries—Evidence—Certifícate of Pinal Entry.</p> <p>2. The certificate of final entry of land issued by'the United States land office, is evidence of the facts recited therein, including the date on which settlement was made.</p> <p>Waters and Water Courses — Rights in Public Land — Prior Appropriation.</p> <p>3. Settlers on publie land, by appropriating water for irrigation, acquire a right thereto against subsequent settlers, and by reason of their priority of appropriation, waived their riparian rights to the water.</p> <p>Public Lands — Election—Appropriator or Riparian Proprietor.</p> <p>4. A settler upon public lands through which a nonnavigable stream flows, has an election, and may claim by appropriation or rely upon his rights as riparian proprietor; but he cannot do both.</p> <p>Waters and Water Courses — Irrigation Rights — Abandonment.</p> <p>5. The owners of a mining ditch, who took water therefrom for irrigation, by leasing their interests therein, abandoned their irrigation rights in the ditch.</p> <p>Waters and Water Courses — Appropriation—Duration.</p> <p>6. An appropriation of water is limited, ill quantity as well as in time, to the extent of the appropriation, and, where water was taken from a ditch for mining only through the winter months up to June 1st, the right of appropriation was limited to that period.</p> <p>Waters and Water Courses — Prescription—Adverse Character of Possession.</p> <p>7. Where defendants used the water from a ditch continuously for 12 or 15 years prior to the commencement of a suit, the owner knowing that the water was being diminished by their use, but not consenting thereto, their use was adverse so as to give them title.</p> <p>Waters and Water Oourses-^-Appropriation — Effect of Appropriation as Against Subsequent Patent.</p> <p>8. Though land was patented prior to Act Cong. July 26,1866, c. 262, § 9,14 Stat. 258 (U. S. Comp. St. 1901, p. 1437), protecting the rights of prior appropriators of water on public land, a prior appropriator of water therefrom would be protected as against the patentee: the statute being merely a recognition of the rights of the prior appropriator.</p> <p>Judgment- Res Judicata — Pleading- Necessity.</p> <p>9. In order to avail himself of a former decree restraining defendant’s predecessors in interest from diverting water from plaintiff’s lands, as a defense against defendant’s claims, plaintiff must plead the former decree; it being in the nature of an estoppel.</p> <p>Judgment — Conclusiveness—Matters Concluded — Identity of Subject-Matter.</p> <p>10. Where a decree in favor of plaintiff, restraining defendant’s predecessor in interest from diverting water from a creek above plaintiff’s land, was based on plaintiff’s riparian rights, and it did not appear that the defendant therein owned any land, or as to what land he was restrained from diverting the water, the decree was personal, and there could be no successor in interest of the defendant therein whom it could affect, and for the same reason it would not operate in favor of plaintiff’s successor in interest.</p> <p>Judgment — Bar—Conclusiveness —Identity or Cause or Action— Subject-Matter.</p> <p>11. Where a decree restraining defendant’s predecessor in interest from diverting water from a creek above plaintiff’s land was based on the latter’s riparian rights, it would not protect any rights based on prior appropriation now claimed by him against defendant.</p> <p>Waters and Water Courses — Prescription—Adverse Character or Possession.</p> <p>12. A use of water is not adverse until it becomes hostile to another’s rights and interferes with such rights so as to give the person injured a right of action for the interference.</p> <p>Waters and Water Courses — Appropriation or Rights in Public Land — Appropriation Concurrent with Settlement.</p> <p>18. If the appropriation of water from a ditch was concurrent with settlement upon the land above the ditch, the rights of the appropriator were superior to the riparian rights of the settler.</p>

From Lake: Henry L. Benson, Judge. Statement by Mr. Commissioner King. This suit was instituted on April 14, 1900, by Marion Conley and Annie C. Hough against Stephen A. D. Porter, to restrain him from interfering with the flow of the waters of Silver Creek, in Lake County, Oregon, to plaintiffs’ premises.

<p>Appeal—Bond—Justification of Sureties.</p> <p>1. Where an appeal bond was conditioned that appellants and their sureties would pay all damages, costs, and disbursements that might be awarded against them on appeal, it was sufficient and not defective, as limiting the liability to $500, because the sureties only qualified in that sum.</p> <p>Same—Report of Evidence—Official Reporter’s Certificate.</p> <p>2. Where the evidence was taken in shorthand by an official reporter, whose duty it was to report the entire proceedings, a certificate to the reporter’s transcript, that it was a full, true, and correct transcript of the shorthand notes taken at the trial, and of the whole thereof, should be construed as certifying that it concluded the entire proceedings had at the trial.</p> <p>Same-Record—Rdentification by Judge.</p> <p>3. Section 827, B. & 0. Comp., provides that in suits in equity which have gone to a decree, the trial judge shall identify the testimony and exhibits within ten days thereafter, and that, where the evidence is taken by a stenographer, he shall extend the same and certify to its correctness, and that all documentary evidence shall be preserved and incorporated in the report of the evidence by the referee. Held, that the evidence is only required to be identified by the judge, when the case is tried before a referee, and on a trial before the court, the transcript of the evidence is to he carried by the stenographer.</p> <p>Same—Certification of Exhibits.</p> <p>4. Section 827, B. & O. Oomp., requires the testimony to be certifiedüby the official stenographer where the case is tried before the judge and a stenographer, and Section 553, B. & 0. Oomp., and Supreme Court Rule 1, 50 Or. 567 (91 Pac. 7), declare that, when an appeal Is from a decree, the clerk shall attach together the testimony, depositions, and other papers on file in his office containing the evidence offered at the trial, and deliver the same to appellant, taking his receipt therefor in duplicate, which depositions, exhibits- and other papers may be certified by the clerk. Held, that where the case is tried before the trial judge and an official stenographer, the exhibits may be properly certified by the clerk, without a certificate from the trial judge or the reporter.</p> <p>Same—Form of Recorb.</p> <p>5. Section 558, B. & C. Comp., Supreme Court Rule 1, 50 Or. 567 (91 Pac. 7), pro, vlding that, where an appeal is taken from a decree, the clerk shall attach together-the testimony, depositions, and other papers on file in his office, containing the evidence, etc., in so far as it requires the evidence and exhibits to be bound in a single volume, is not mandatory, but directory only, so that it is not a fatal defect that the pleadings, exhibits, and evidence are bound in separate volumes, held together by rubber bands.</p> <p>Same—Filing Exhibits.</p> <p>6. It was no objection to the sufficiency of an appeal record, that the exhibits which were properly identified by the stenographer as they were introduced in evidence, were not filed with the clerk of the trial court.</p> <p>Note : This appeal was afterwards dismissed by stipulation of the parties. Reporter.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Chief Justice Bean. On December 21, 1906, plaintiffs commenced an action against defendant in the circuit court for Marion County, to recover $500 as commission on the sale of real estate. On the 31st of that month, and during term time, defendant answered, denying the averments of the complaint, and setting up certain affirmative matter as a defense.

<p>Criminal Law—Appeal-Necessity of Bill of Exceptions—Effect of Failure to Make Bill.</p> <p>1. Where there is no bill of exceptions in the record, questions arising on the admission or exclusion of testimony cannot be considered on appeal.</p> <p>Adultery—Sufficiency of Indictment.</p> <p>2. Even if it is necessary to show on the face of an indictment for adultery, that the prosecution was commenced upon the complaint of a person authorized by statute to commence such a prosecution, an indictment which states that it was found on the complaint of defendant’s wife is sufficient.</p>

<p>Criminal Law—Trial—Reception of Evidence—Order of Proof-Acts of Conspirators.</p> <p>1. The common-law rule, in substance incorporated in Section 718, Subdivision 6, B. & C, Comp., that the acts and declarations of one conspirator cannot be admitted in evidence against his fellow conspirator, until proof has been made of the conspiracy, is not unyielding, and, where the circumstances are so peculiar as to require it, the acts and declarations of a conspirator maybe introduced in the first instance before proof of the conspiracy.</p> <p>Conspiracy—Evidence—Sufficiency.</p> <p>2. The fact of a conspiracy may be inferred from circumstances, and the concurring conduct of the persons charged with having entered into a conspiracy need not be directly proved.</p> <p>Same.</p> <p>8. Where, on a trial for larceny, the evidence showed that the offense was committed in a house of ill fame ; that accused was the proprietress thereof ; that codefendant was an inmate ; that prosecutor visited the house and that the codefendant was a principal in the commission of the offense ; that accused shared in the earnings of codefendant, very slight additional evidence was sufflpient to justify the inference of a conspiracy between accused and codefendant to commit the offense.</p> <p>Criminal Law—Parties to Offenses—Statutes.</p> <p>4. Under Section 1824, B. & C. Oomp., abolishing the distinction between an accessory before the fact and a principal, and between principals In the first and second degress, and declaring that all persons concerned In the commission of a felony shall be punished as principals, one may be convicted of a felony as a principal, on proof that a crime was committed, and that he either immediately participated therein or aided or abetted its commission, though not present:</p> <p>Same—Erroneous Admission of Evidence—Prejudicial Error.</p> <p>5. Where, on a trial for larceny, the evidence showed that the offense was committed in a house of ill fame, that accused was the proprietress thereof, that codefeneant was an inmate thereof, that prosecutor visited the house, that the codefendant was one of the principal actors in the commission of the offense, and that she did not commit the act unaided, the admission in evidence of the acts and declarations of the codefendant while accused was absent, was not prejudicial.</p> <p>Larceny—Evidence—Admissibility.</p> <p>6. On a trial for larceny, evidence held to connect accused directly with the crime, so that the admission in evidence of the acts and declarations of a codefendant was not erroneous.</p>

<p>Vendor and Purchaser—Misrepresentations by Vendor—Fraud-Sufficiency of Evidence.</p> <p>1. In an action to annul the sale of a tract of land and to recover a part payment thereon, evidence examined and held to show that defendant fraudulently represented the value of the land and the purposes for which it could be used.</p> <p>Vendor and Purchaser—Rescission by Purchaser —Fraud —Defenses.</p> <p>2. A person cannot, with intention to mislead a purchaser by deceiving him concerning facts of which he is in the dark, sell him land for one purpose, and then in a suit in equity, brought to annul the transaction by reason of such crafty device, defend on the grounds that, while he knowingly and willfully deceived the purchaser in the manner claimed, the grantee will lose nothing-thereby, if he will avail himself of the lands for some other or different purpose designated by the grantor.</p> <p>Fraud—Representations—Negligence In Believing.</p> <p>' 3. Where one assumes to have knowledge of a subject of which another may be ignorant, and knowingly makes false representations regarding It, upon which the other relies to his injury, the party who makes such statements, will not be heard to say that the person who took his word and relied upon it, was guilty of such negligence, as to be precluded from receiving compensation for injuries which were inflicted on him under cover of the falsehood.</p>

<p>Trial—Instructions—Purpose and Effect of Evidence.</p> <p>1. In a case where incompetent testimony was admitted without objection on cross-examination showing that plaintiff had consulted two other attorneys who had declined to take his case, and where an attempt was made to show that plaintiff had learned from them why he had no cause of action, to the end that the credibility of his evidence might be affected, an instruction that it was immaterial how many lawyers plaintiff visited before bringing the action, but if as a result of any visit he afterwards told a different story, and which was not true, that could be taken into consideration, but that the lawyers’ views of the matter had nothing to do with the case, was properly given to eliminate the effect of the testimony as to the lawyers’ opinions as to the merits of the case, and to leave for the jury’s consideration so much of the testimony as might tend to influence br color plaintiff’s testimony.</p> <p>Witnesses—Credibility—Presumption That His Testimony Is True.</p> <p>2. Under the direct provisions of Section 695, B. & O. Comp., the presumptioh that a witness speaks the truth may be overcome by the manner in which he testifies, by the character of his testimony, or by evidence affecting his motives.</p> <p>INSTUCTIONS.</p> <p>3. The instruction was not upon an abstract proposition of law.</p> <p>Negligence—Contributory Negligence—Plaintiff’s Evidence.</p> <p>4. Though plaintiff, in a personal injury ease, is not required to show want of negligence on his part, yet, if negligence on his part is disclosed by liis evidence, it will defeat his right of recovery.</p> <p>Trial—Instructions.</p> <p>5. The fact that plaintiff’s right to recover in a personal injury case, if his evidence showed his contributory negligence, was raised at the close of the whole case by an instruction to the effect that, if it appeared from “plaintiff’s case” that he was negligent, he could not recover, instead of raising the question upon a motion for a nonsuit, did not render the instruction improper, where there was nothing disclosed by the defense affecting it.</p>

<p>Appeal—Review—Scope—Questions Not Passed on by Lower Court.</p> <p>1. Where the only ruling made by the court below was upon a motion to dismiss a writ of review for insufficiency of the petition, the merits of the case cannot be considered on appeal.</p> <p>Certiorari—Nature and Grounds—Statutory Provisions—Petition —Contents.</p> <p>2. Under Section 596, B. & O. Comp., providing that a writ of review shall be allowed by the court of the county wherein the determination to be reviewed was made, upon the petition of the plaintiff, describing the same with convenient certainty and setting forth the errors relied upon, the petition must contain a sufficient statement of the facts when taken as true, to disclose to the court that plaintiff is entitled to the writ.</p> <p>Same—Nature and Scope—“Writ oe Review.”</p> <p>3. The writ of review is substantially the common-law certiorari, but under the express provisions of Sections 595, 603, B. & 0. Comp., it lies only to review a determination of the proceeding, and not from an interlocutory order, nor to remove a cause for hearing in another court; while at common law, certiorari was used both as a writ of review after final judgment, and also for removing the entire cause at any stage for hearing and determination in the upper court.</p> <p>Same—Special Proceeding—Procedure.</p> <p>4. The proceeding for a writ of review is a special one, the writ is issued ex parte, and a motion is the proper method for calling to the attention of the ■court any matter requiring its action, as to the propriety of issuing the writ.</p> <p>Same—Review—Errors Relied Upon.</p> <p>5. If, upon an examination of the petition for a writ of review in the first instance, the judge finds it insufficient, he should disallowthe writ, but, if he hag inadvertently issued the Writ, the adverse party is not precluded thereby from questioning the sufficiency of the petition before it comes on for hearing on the merits, since no errors can be considered upon the merits, except those properly brought up by the petition.</p>

<p>Insurance—Mutual Benefit Societies—Applications—Warranties —Breach—Estoppel—Notice to Agent.</p> <p>1. It is only when an agent is acting for liis principal and within the scope of his authority that notice to the agent of matters that would affect his principal is binding upon the latter, and hence a mutual benefit order was not estopped to declare a forfeiture for breach of warranty consisting of false statements made in a member’s application, because the lodge physician before whom the answers were made, while subsequently treating the applicant professionally and not in connection with his lodge duties, acquired information amounting to notice that answers in the application were false.</p> <p>Same —False Statements in Application —Notice of Falsity — Evidence.</p> <p>Evidence examined, and held not to show that a subordinate lodge or any member or officer thereof knew at the'time a member was admitted, that his answers to the medical examiner were false, so as to estop the order to declare a forfeiture of the certificate for breach of warranty.</p>

From Umatilla: Henry J. Bean, Judge. This is an action commenced in the Circuit Court of Umatilla County by Philomme Smith against James Mos-grove, William Mosgrove and Mat Mosgrove, to recover damages for trespass upon real property. On motion of defendants, an order was entered in the court below, dismissing the action for want of jurisdiction of the subject-matter, from which the plaintiff appeals.

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>Statement by Mr. Commissioner King.</p> <p>This is an action to recover a commission on the sale of lot 9 in block 86 in Portland, Or.,, conveyed by defendants to John Manning and L. EL Tarpley for $20,000. The complaint, in substance, avers that plaintiffs are real estate brokers, and, at the special instance and request of defendants, were instrumental in bringing about the sale; that $550 is a reasonable commission to be charged for their services, and is the usual and customary rate charged in that city for like sales, for which sum they prayed judgment.</p> <p>An answer placed the cause at issue. By consent of the parties the cause was tried before the court without a jury, resulting in a judgment for plaintiffs in the sum demanded. Hence this appeal.</p> <p>The record discloses that Manning and Tarpley wanted to purchase the property and told plaintiffs they would give $20,000 for it, and, as evidence of good faith, executed a check to Bruce Wolverton for $50. With a view to handling the property for the owner, plaintiffs were soon in communication with George Tuttle. He at first hesitated to name a price, and when asked by Kinsell, “How would $17,500 do?” said that he had refused $18,-000, but would take $20,000. The question of commissions then arose, as to which he said, “That will have to be net to me,” and concerning which Kinsell testified: “I told him the regular commission on that deal, if we made it go at that price, would be $550, and that he was getting a good price for his property, $20,000; but I said: T can’t close this matter up here until I see my principal again.’ He said: ‘All right; when will you know?’ I said: ‘This afternoon I will know.’ And he said: T will be down town, and I will stop at your office and get your answer.’ ” They met at the office at the agreed time. Wolverton was there and was introduced to Tuttle, and, as soon as the deal was mentioned, informed him that they must have a commission if the deal went through, as they could not work for nothing, having office expenses to pay, etc., to which Tuttle replied: “I understand that. I want $20,000 net.” Wolverton then said: “Well, we will take you over and see if you can’t arrange between you about paying the commission.” Acting on this suggestion, they went to Tarpley’s office, nothing further being said on the way. When they reached his office Manning was telephoned for, and after his arrival the question of commission was again called up. Concerning this conversation Kinsell testified:</p> <p>“Q. Was there anything said by you agents about paying the commission or either of you?</p> <p>A. I think Mr. Wolverton did most of the talking. I do not remember the exact words.</p> <p>Q’. Was he insisting on a commission, or insisting he would have a commission if the deal went through?</p> <p>A. Yes, sir; he was fighting for a commission, and finally Mr. Tuttle said to Mr. Manning and Mr. Tarpley.: ‘Gentlemen, I will let this matter rest until Wednesday of next week for you to decide.’ Mr. Manning, I believe it was, said: ‘We will take the property. There is no use putting it off’—and handed over a check and dictated a receipt. At that time it developed, when he was dictating the receipt, Mr. Manning, I believe, asked Mr. Tuttle whether the property was in his name; and Mr. Tuttle said, ‘No; it is in my wife’s name,’ he said. ‘Your wife has been consulted about this?’ asked Mr. Manning, ‘and she will sign the deed ?’ Mr. Tuttle said: ‘Yes; she is willing’—and finished writing the receipt, and fixed the details of the deal as to the amount to be paid in cash, etc., and finally instructed Mr. Manning—told Mr., Tuttle to sign his wife’s name, as agent, or to be agent to sign her name; and that is about all I know of that over there. We left them.</p> <p>Q. During the time they were in your office, just prior to the time you started over to Mr. Tarpley’s office, Mr. Wolverton, in his conversation with Mr. Tuttle, insisted all the time he was to have a commission if he sold the property to his client? * * What were the facts about the conversation between Mr. Wolverton and Mr. Tuttle, the conversation they had about the commission before going to Mr. Tarpley’s office?</p> <p>A. I have stated it substantially as I could, in my office, you mean?</p> <p>Q. Yes.</p> <p>A. Mr. Wolverton stated very plainly to Mr. Tuttle that our parties were willing to pay $20,000, but no more, and- said we could not work for nothing. The regular commission on that would be $550. Mr. Tuttle said: ‘Yes; you, of course, have your expenses to pay as well as any one else who has an office.’ And I don’t remember whether there was anything else particularly said, any more than that Mr. Wolverton said we would go over and get the parties together. He suggested to Mr. Tuttle to go over to Tarpley’s office and see if it would not be arranged between them about this commission.”</p> <p>Within a few minutes after the parties were brought together in Tarpley’s office, the terms of the sale were agreed upon, and $50 was paid to Tuttle to bind the bargain, and a receipt given therefor, signed “Mary Tuttle, by George Tuttle,” to the effect that this sum was paid as a part of the purchase price of the lot, and that she agreed to furnish an abstract to the property and give a good and sufficient warranty deed thereto upon the payment of $10,000 cash, the balance to be secured by a first mortgage on the property. The. check formerly given to Wolverton was by him indorsed and delivered to Tuttle* in payment of the'$50 mentioned. After meeting at the office, and before this transaction took place, the question of commission was mentioned, and Manning and Tarpley indicated that they would not pay more than the $20,000 and would pay no commission, while Tuttle maintained he would accept nothing less than “$20,000 net.” After the check was exchanged for the receipt a commission was demanded of Tuttle by plaintiffs, which Tuttle refused. When the receipt was given it was learned for the first time that Mrs. Tuttle held the legal title to the property. Plaintiffs then called upon her, and, after explaining that the deal had been made, and that they were instrumental in bringing it about, told her that they were entitled to, and expected, a commission for their services. To this Mrs. Tuttle replied, in effect, that they should have a commission, which would be paid if the deal went through. A deed to the property was thereafter executed to the purchasers in accordance with the terms of the receipt mentioned. Plaintiffs then demanded the commission in question, which was refused, resulting in this proceeding.</p>

<p>Corporations — Members — Meetings — Calling Meetings — Persons Making Call.</p> <p>1. It is in general essential to the validity of acts done at a special or called meeting of a corporation, that the call shall be made by the persons appointed by the governing statute to call such meetings, and notice must be given at the time and in the manner prescribed.</p> <p>Schools and School Districts—Public Schools—District Boards— Meetings—Persons Giving Notice.</p> <p>2. Section 8885, B. & O. Oomp., vesting in school district meeting the power to levy taxes, expressly limits such power to “district meetings, legally called”; Section 8389, subd. 1, empowers the district school board to call meetings generally; and subdivision 14 empowers it to call meetings to consider the question of erecting school buildings. Section 8380 provides, that all regular and special school meetings must be convened by a call stating the</p> <p>• objects of such meeting, signed by the chairman of the board and the district cleric, or a majority of the district school board. Held, that Section 3380 was intended to designate the persons who should give notice of a called meeting ordered by the board, and not merely to give the officers therein named a discretionary power to call a meeting, and the existence of the same power in some other body was necessarily excluded.</p> <p>Statutes—Construction—Belated Clauses.</p> <p>8. To ascertain the intention of a statute, it must be construed in connection with all other provisions of the act of which it forms a part.</p> <p>Schools and School Districts—Public Schools—Meetings—Persons Giving Notice—"Chairman of the Board.”</p> <p>4. Section 3880, B. & C. Comp., provides, that all regular and special school meetings must be convened by a written call stating the objects of such meetings) signed by the chairman of the district board and district clerk, or a majority of the school board. Section 8388 provides, that the director who has served the longest time shall act as chairman of the board meetings, and. in the absence of the chairman, th,e other members of the board in the order of their seniority may act as chairman. The statute does not expressly create the office of “chairman of the school board,” but such office was impliedly recognized by Section 3389, subd. 16, providing that school warrants must be drawn and signed by the chairman of the board, and subdivision 21 permitting the board to authorize the chairman to draw warrants for the payment of salaries, and subdivision 31 providing that all bonds issued shall be signed by the chairman of the board of directors, and Section 3409 providing that meetings of the board may be convened by written notice issued on the order of the chairman. Held, that the various sections of the statute construed together recognized the permanent and separate existence of the office of “chairman of the board,” and by Section 3388 the oldest in service of the directors was chairman of the board, and hence a special meeting called under Section 3380 signed by the next oldest member of the board was not signed by “the chairman of the board,” as required thereby, and bonds issued at such a meeting were invalid.</p> <p>Same—District Debts—Bonds —Remedies of Taxpayer—Participation in Meeting—Estopped to Object—Pdeading.</p> <p>5. In a suit to enjoin the issue of bonds to build a district school building, on the ground that the meeting of the district board authorizing the issue of the bonds was not legally convened, even if plaintiff had knowledge of the meeting and participated therein, and was thereby estopped to question the validity of the proceedings in equity, such facts would be a matter of defense by way of estoppel.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Moore. This is a suit by Mark Rush-against the Oregon Water Power & Ry. Co., a corporation, to recover damages for a personal injury suffered by the plaintiff while engaged as a brakeman in the employ of the defendant.

From Marion: George H. Burnett, Judge. Statement by Mr. Chief Justice Bean. Action by the Krebs Hop Co., a corporation, against T. A. Livesley and another.

From Multnomah: Arthur L. Frazer, Judge. Statement by Mr. Commissioner Slater. This action was brought by John 0. Millen, as administrator of the estate of John H. Larsen, deceased, against the Pacific Bridge Co., a corporation, to recover damages for its alleged negligence by which Larsen was so injured that he died on April 22, 1906, at Portland, Oregon.

From Marion: George H. Burnett, Judge. Statement by Mr. Commissioner Slater. Plaintiff sues as one standing in the place of a parent for the seduction of her granddaughter, Viletha Thurman, by defendant, which occurred on or about January 22, 1906.

From Clackamas: Thomas A. McBride, Judge. This is a suit by John Gaffney, Sr., against Michael Gaffney, Daniel Gaffney and Bridget Gaffney to cancel a deed to real property made by the plaintiff to Michael and Daniel Gaffney, and to cancel and annul certain stipulations filed in the case of Bridget Gaffney v. John Gaffney, Sr., and in the case of John Gaffney, Jr., v. John Gaffney, Sr., on the ground of want of capacity to execute same, and the further ground that they were…

From Multnomah: John B. Cleland, Judge. Upon information, the defendant was charged with an assault with a dangerous weapon by shooting one 0. Nelson, for which he was tried, convicted and sentenced to the penitentiary for the term of five years. From the judgment and sentence of imprisonment, the defendant appeals.

From Wheeler: Henry J. Bean, Judge. This is a suit by E. L. Smith against the Interior Warehouse Co. to reform two contracts for the sale of 27,500 sacks of wheat by plaintiff to the defendant. From a judgment in favor of defendant, plaintiff appeals. The case was submitted on briefs, under the proviso of Rule 16: 50 Or. 580.

From Multnomah: John B. Cleland, Judge. Statement by Mr. .Justice Eakin. This is an action to recover damages for breach of warranty, defendant having sold to plaintiff a manila rope, to be used by the plaintiff to lower a safe, weighing 4,700 pounds, from the third story of the Stearns building.

From Clatsop: Thomas A. McBride, Judge. The defendant, Christ Nielsen, a resident of the State of Washington, was arrested, tried, and convicted in the courts of Oregon for illegal fishing on the Washington side of the Columbia River, in violation of the laws of this State, and from the judgment rendered therein, he appeals.

From Multnomah: Alfred F. Sears, Judge. Statement by Mr. Commissioner Slater, This is a suit to enforce the specific performance of the following contract: “This agreement made and entered into this 7th day of November, A. D. 1904, by and between H. L. Stephenson, party of the first part, and A. J. Deitz, party of the second part, witnesseth that: Whereas, the party of the second part has this day agreed to take a one-fourth interest in the property and contents of the Scott…