Volume 53 — Oregon Reports

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>The defendant, Ju Nun, was convicted of the crime of manslaughter, and from the-sentence which followed, he appeals.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>Pursuant to the provisions of the act of February 17, 1899 (Laws 1899, p. 99),'the district attorney of the Fourth Judicial District filed an' information in the circuit court of Multnomah County, charging the defendant with the crime of murder, without a preliminary examination and without any complaint having been filed against him. Upon the filing of the information, a bench warrant was issued by order of the court, and the defendant restrained of his liberty. He moved to set aside the warrant of arrest and information on the ground, that the procedure adopted was violative of Section 18, Article VII, Constitution of Oregon, and section 1 of the Fourteenth Amendment of the Constitution of the United States. This motion was overruled, and defendant entered a plea of not guilty. In due time the cause came on for trial before a jury, whereupon he objected to each juror as his name was drawn from the jury box, on the ground that the law under which the jury was drawn was unconstitutional. These objections were overruled, and during the trial the State offered, and there was admitted over defendant’s objection, an alleged dying statement of the deceased. The trial resulted in a verdict of manslaughter, and defendant was sentenced to the penitentiary, from which judgment he appeals.</p>

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is an action to recover damages for an alleged injury received by plaintiff while in the service of defendant. Defendant is a corporation engaged in the manufacture of lumber. At the time of the accident, its sawmill department was under a foreman named Mullet, who had general charge thereof, with authority to hire and discharge men, to purchase supplies, to make or cause to be made all necesary repairs of machinery and appliances, and, generally, “to have such work done as he felt ought to be done, without consulting” the superintendent or manager.</p> <p>When logs were brought into the mill, they were cut into cants or sections from 2 to 14 inches in diameter by a circular saw and then transferred to the pony saw at the other side of the mill by an overhead transfer or rolling crane. This crane was equipped with a chain having at the end thereof hooks which were fastened into the cants or timbers about • to be moved and by which they were handled. The crane was operated by two men, one of whom by a system of levers controlled its movements; the duty of the other, called the hook tender, being to see that the hooks were properly fastened into the timber about to be moved, and to balance it while being moved. It was important that the hooks should be sharp, so as easily to penetrate the timbers; but they would become dull or worn from use, and therefore had to be resharpened from time to time. The hook tender was furnished with files with which to “touch up” the points, but in time the hooks would become so worn that they could not be sharpened in this way, and in such a case the foreman would take, or cause them to be taken, to a blacksmith shop and drawn out and sharpened. About a week before the accident to plaintiff, one of the workmen in charge of the crane informed Mullet that the hooks were dull and needed sharpening. Mullet examined them, and, ascertaining that they were in the condition represented by the workman, promised to have them sharpened, but neglected to do so. A day or two later, he was again spoken to about the matter, and he promised to attend to it, but did not. On the day of the accident, while a cant was being transferred from one side of the mill to the other, it fell, as plaintiff claims, on account of the defective hooks, striking the lever by which the movement of the saw carriage was controlled, suddenly starting it, and injuring plaintiff, who was working thereon, and who had no knowledge of the defective condition of the hooks.</p> <p>At the close of plaintiff’s testimony, the defendant moved for a nonsuit, on the ground that the negligence shown, if any, was that, of a fellow servant of the plaintiff, for whose conduct defendant was not liable. This motion was overruled, whereupon defendant gave testimony tending to support its side of the case, at the close of which it requested the court to instruct the jury to return a verdict in its-favor, for substantially the same reasons as urged in its motion for nonsuit. This motion was likewise denied, and the cause submitted to the jury.</p> <p>The court, among other things, instructed them as follows:</p> <p>“If you find from the evidence that the plaintiff and other persons shown to have been working in the mill of defendant at the time of the alleged inj ury (providing they were drawing a compensation approximately the same) were engaged in the same general business of conducting the business of operating the mill in which they were working, and one was not in authority over, the other, they were fellow servants, and each.took the risk of the other’s negligence, and for an injury resulting to the plaintiff from the carelessness or negligence of such fellow servant plaintiff cannot recover. If you find from the evidence the defendant invested a person with power and authority to employ and discharge employees in one department of its business, and also intrusted to such person supervision and care of making necessary supervision and repair, and taking proper care of the machinery in use in the mill, then, and in such case, this person, while engaged in the performance of these specified duties, as explained in this instruction, would be the representative of the master, and would not be a fellow servant within the meaning of other instructions given in this case. If you find that the facts alleged in the complaint are established, and you find negligence, and this negligence was that of the person in this case called the foreman, and find the other issues for the plaintiff, you will be warranted in finding a verdict for the plaintiff.”</p> <p>The court refused to instruct, at the request of defendant, that if the injury to plaintiff “was caused by the negligence of another workman who was employed in said mill, either as hook tender or otherwise, so long as he was a fellow servant,”' plaintiff could not recover, and that if “the injury to plaintiff was caused by the use of dull hooks, and the hook tender, knowing the hooks were dull, continued to use them in that condition,” plaintiff could not recover. The plaintiff had verdict and judgment, and defendant appeals.</p>

From Baker: William Smith, Judge. This is a suit by W. G. Ayre against Elijah Hixson, L. M. Hixson, Russel Ames and Brasfield Bros, to foreclose four mortgages which include both real and personal property. The defendants Brasfield Bros, were made parties on account of their being in possession of certain personal property, which plaintiff contends are included in the mortgages given by the defendants Hixson & Ames.

<p>From Polk: George H. Burnett, Judge.</p> <p>Statement by Mr. Justice Eakin.</p> <p>This is an action by plaintiff against defendant to recover $235 apportioned to plaintiff by the boards of directors of the two school districts, plaintiff and defendant, in pursuance of the provisions of Section 3365, B. & C. Comp., as amended in 1903 (Laws 1903, p. 125).</p> <p>Plaintiff is a school district formed just prior to June 27, 1905, and includes territory which was originally a part of. the defendant district; and it is alleged that prior to the creation of the new district, viz., on July 2, 1904, the defendant district, at a school meeting called for that purpose, levied a special tax of five mills on the dollar upon the property in the district for the purpose of repairing the schoolhouse and building an addition thereto; that after the organization of the plaintiff district, the boards of directors of the two districts met for the purpose of making an equitable division between the old and the new district of the assets and liabilities then existing. The result of such adjustment is shown by the minutes of the meeting, namely:</p> <p>“West Salem, June 27, 1905.</p> <p>“The directors of Dist. 32 and Dist. 61 met at the schoolhouse, and the directors of Dist. 61 agreed to accept $125 as their share of the property, and that Dist. 32-pay to Dist. 61 a special tax paid by the people set out of Dist. 32 into Dist. 61.</p> <p>“E. Elliott, Clerk of Dist. 32.”</p> <p>It is conceded that the portion of the special tax paid by the people within the plaintiff district amounted ’ to the sum of $110, and that the defendant now has that sum on hand. Defendant by its answer admits its liability for $125 of the sum sued for, but sets up by its answer the fact that the remaining $110 thereof is a part of the special tax as above mentioned. To this defense the plaintiff demurred, and the demurrer was sustained by the lower court and judgment rendered in favor of the plaintiff for the whole amount; and the defendant appeals. Affirmed.</p>

From Yamhill: William Galloway, Judge. Statement by Mr. Chief Justice Bean. This is a suit to enjoin and restrain defendant county and its officers and agents from opening a county road over and across the premises of plaintiffs as laid out and established by the county court on April 8, 1905.

From Linn: George H. Burnett, Judge. Statement by Mr. Commissioner Slater. The defendant, ■ George W. Fisher, was arrested, tried, and convicted in a justice’s court for Linn County, upon a charge of having violated the game laws of this State by having in his possession on December 12, 1907, in that county, six deer hams, when it was unlawful to take or kill such deer. He thereupon appealed to the circuit court, and the cause came on for trial on March 13, 1908.

From Marion: William- Galloway, Judge. Statement by Me. Justice Eakin.

From Malheur: George E. Davis, Judge. . Statement by Mr. Chief Justice Bean. On April 11-, 1903, Henry Helmick recovered judgment in the circuit court for Malheur County, against O. W. Porter, for $2,930.22, and costs. Defendant. Miller was his attorney.

From Wasco: William L. Bradshaw, Judge. This is an action by R. T. Elliff against the Oregon Railroad & Navigation Company, to recover damages for a personal injury. From a verdict in favor of plaintiff, for the sum of $900, the defendant appeals. Statement by Mr. Justice Moore.

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>On Motion to Dismiss.</p>

From Tillamook: William Galloway, Judge. This is an action by Peter McIntosh against Alexander McNair to recover an alleged balance due plaintiff from defendant on the sale of certain shares of the capital stock in the Mclntosh-McNair Company, a corporation. From a judgment in favor of defendant, plaintiff appeals.

From Multnomah: Calvin U. Gantenbein, Judge. This is a suit by George Long, on his own behalf and on behalf of all other residents, citizens, corporations, and taxpayers and all others similarly situated, against the City of Portland. From a decree of dismissal entered after sustaining a demurrer to the complaint, plaintiff appeals.

<p>From Douglas: James ty. Hamilton, Judge.</p> <p>Statement by Mr. Commissioner Slater.</p> <p>This is an action to recover the amount of a benefit certificate issued by the defendant association to Nancy C. Beard, wife of plaintiff. Application for issuance of the certificate was made August 22, 1903, and the certificate was issued to, and received and accepted by, the insured on November 13, 1903. By its terms it was issued and accepted upon certain warranties, conditions, and agreements therein expressed, to the general effect: (1) That the application and medical examination are a part of the contract, and that the literal truth of such application, and each and every part thereof, shall be held to be a strict warranty, and to form the only basis of the liability of the society to the member applying for the benefit, and to the beneficiary, the same as if fully set forth in the certificate; (2) that should said application, and each and every part thereof, not be literally true, then the certificate as to the member ■ or beneficiary shall be null and void; (3) that the certificate was issued in consideration of the warranties and agreements made in the application; and (4) that if the application shall be found in any respect untrue, then the certificate shall be void and all rights under it forfeited. Nancy C. Beard died June 8, 1905, and proof thereof was made to the defendant on June 9, 1905, by Frank M. Beard, the beneficiary named in the certificate, who demanded payment of the amount therein specified, and, the company failing to pay, he brought this action to recover the same.</p> <p>The answer denies generally all of the material averments of the complaint, except that it expressly admits the issuance of the certificate and the terms thereof, as stated in the complaint; that plaintiff is named therein as the beneficiary; that due and timely proofs of the death of Mrs. Beard were made and furnished to the defendant, but the defendant denied any and all liability to plaintiff by reason of the certificate. As an affirmative defense there are set' forth the terms of the application, which are in part to the general effect that the applicant agreed that the application should be the sole basis of her admission to the order, and of the benefit certificate to be issued, and that any untrue statement or answer made in the application or to the examining physician, or any concealment of facts, intentional or otherwise, should forfeit her rights, and that of her beneficiary, to any and all benefits therein. It also contains this provision:</p> <p>“That I have verified each of the foregoing answers and statements, numbered from 1 to 33, both inclusive, and adopt them as my own, whether written by me or not, and declare and warrant that they are full, complete, and literally true, and I agree that the exact truth of each shall be a condition precedent to any binding contract.”</p> <p>There are then set forth a number of interrogatories contained in the application and the answers made thereto by Mrs. Beard, among which are these:</p> <p>“(18) Have you within the last seven years consulted any person, physician, or physicians in regard to personal ailment? No. If so, give dates, ailment, length of illness, and person, physician or physicians’ name and address.”</p> <p>And—</p> <p>“(25) Have you ever had any * * of the following diseases * * la grippe? No.”</p> <p>It is then averred that each of these answers are untrue, in that she had had la grippe, and that within seven years preceding the date of her application she had consulted a physician in regard to a personal ailment.</p> <p>The affirmative matter of the answer was denied by the reply. The cause being at issue, a trial was had before a jury. At the close of the taking of testimony defendant moved for a directed verdict' in its favor, which was denied by the court. A verdict for plaintiff having been returned, judgment thereon was accordingly entered, from which defendant has appealed.</p>

From Douglas: James W. Hamilton, Judge. Statement by Me. Justice Eakin. This is an appeal from a verdict and judgment in favor of plaintiíf, S. J. Chenoweth, for loss of hay by fire, alleged to have been caused by the emission of sparks from engines of defendant, resulting from improper construction and careless and negligent management and operation of said engines. Plaintiff’s hay was in a warehouse, within 35 feet of defendant’s track, at Wilbur Station.

<p>From Yamhill: William Galloway, Judge.</p> <p>This suit was commenced by Yamhill County against Harrison E. Foster, as treasurer of said county, to enjoin and restrain him, as' such officer, from paying over to the State the money apportioned to said county for state revenues for the year 1908. The defendant demurred to the complaint and same being overruled, a decree was rendered in favor of plaintiff, from which decree defendant appeals.</p> <p>Statement by Mr. Justice Bean.</p> <p>This suit was commenced in May, 1908, by Yamhill County to enjoin and restrain the treasurer of such county from paying over to the State the amount apportioned to the county for state revenues for the year 1908. The complaint, after alleging that plaintiff is a duly organized county and political division of the State, and defendant its duly elected and qualified treasurer, avers that in January, 1908, the Governor, Secretary of State, and State Treasurer, acting jointly as a board, ascertained by computation, in the manner required by law, the amount of money necessary to be paid by the several counties of the State for State purposes; that it was the duty of the board to apportion such amount among the several counties by requiring each to pay such a proportion thereof as the assessed value of the property therein bore to the total assessed property of all the counties of the State; that, upon such basis of apportionment, the amount justly and equitably char«-e°1''‘ ~ plaintiff is $23,167.03, payable one-half thereof during the month of May, 1908, and the-balance on the 1st of November of that year; that the State board, in disregard to its duties, made the apportionment in an arbitrary manner and by an arbitrary rule, without reference to the value of the property in the several counties, and that upon such basis the amount apportioned to plaintiff was $44,965; that, although plaintiff is ready, willing, and able, and has directed defendant, its treasurer, to pay to the State the amount justly due it, the defendant is about to, and, unless restrained by an order of the court, will, in obedience to the demands of the State officers, pay the entire amount apportioned to plaintiff county out of the money in his hands belonging to such county.</p> <p>Defendant demurred to the complaint on the grounds (1) that plaintiff has no legal capacity to bring this suit; (2) that there is defect of parties defendant, in that the State should have been made a party; (3) that the complaint does not state facts sufficient to constitute a cause of suit; and (4) that it does not state facts sufficient to warrant the relief demanded.</p> <p>The demurrer was overruled, and a decree rendered in plaintiff’s favor, from which decree defendant appeals.</p>

<p>From Union: John W. Knowles, Judge.</p> <p>Statement by Mr. Commissioner King.</p> <p>The defendants were tried under an indictment charging them with riot, but convicted of an “unlawful assembly,” the indictment, omitting formal parts, being as follows:</p> <p>“The said George Kolias, Nick Stephanus, Nick Baggies, and Harry Barias on the 9th day of October, 1908, in the county of Union and State of Oregon, did then and there, and acting together, unlawfully, feloniously, and riotously assemble and gather together to disturb the public peace, and, being so assembled and gathered together, did unlawfully and riotously, and without authority of law, and in a manner adapted to disturb the public peace and excite public alarm, and then and there arming themselves with dangerous weapons, to-wit, loaded guns, clubs, and rocks, make an assault with said dangerous weapons upon George Hamilton, by then and there attempting to strike, shoot, and kill him, the said George Hamilton, with said unlawful weapons, the said attempt-being then and there accompanied by the immediate power of execution, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.”</p> <p>The court submitted to the jury written interrogatories, the answers to which, accompanied by the verdict, omitting formal parts, are as follows:</p> <p>“Q. Did the defendants, or either of them, carry or have at the time and place named in the indictment, any kind of dangerous weapon?</p> <p>“A. Yes.</p> <p>“Q. What defendant, or defendants, had such dangerous weapon?</p> <p>“A. Harry Barias.</p> <p>“We, the jury in the above-entitled action find the defendants, Nick Stephanus, Nick Baggies, and Harry Barias guilty of an unlawful assembly.</p> <p>(Signed) “S. M. Haynes, Foreman.”</p> <p>A motion was interposed to set aside the verdict and special findings, and for a judgment notwithstanding the verdict, and asking that the defendants be discharged from custody for the reason that the indictment does not charge any crime or misdemeanor, except a riot, of which charge the defendants by the verdict had been acquitted, further specifying that the “unlawful assembly” of which defendants had been convicted was not a crime or misdemeanor under the Code. The motion was overruled, and the accused sentenced to pay a fine, and in default of payment thereof, to serve a term in the county jail; hence this appeal.</p> <p>Submitted on briefs under the proviso of Rule 16 of the Supreme Court, 50 Or. 580.</p>

<p>Brokers — Individual Interest — Contract.</p> <p>1. Where the agent for the sale of land without the knowledge of his principal procures a third person to agree to assist in the sale for a portion of the commissions, such third person cannot himself purchase the land and turn it over to another at an advanced price.</p> <p>Specific Performance — Evidence of Contract — Sufficiency.</p> <p>2. Evidence in an action for specific performance of a contract for the sale of land held to show, that plaintiff was employed as a subagent by defendant’s agent to make a sale for a portion of the commission, so that he could not buy himself for immediate resale at a profit.</p>

<p>Appeal and Error — Pleading—Construction.</p> <p>1. Where the sufficiency of a complaint has not been challenged at the tria', all reasonable intendments in favor thereof will be invoiced on appeal.</p> <p>Master and Servant — Contract of Employment — Breach—Remedy.</p> <p>2. An employee’s remedy for wrongful discharge before the expiration of his term, is by action for damages for breach of contract, and not in assumpsit for implied services or for wages.</p> <p>Master and Servant — Employment Contract — Breach—Complaint-Construction.</p> <p>S. Where a complaint alleged plaintiff’s employment for a specified term, his wrongful discharge prior to the expiration of the term, and his ability and willingness to perforin the work required, and demands judgment for a specified amount of money, the complaint, not having been assailed by demurrer, will be construed to state a cause of action for damages for breach of contract, and not an action for wages.</p> <p>Master and Servant — Wrongful Discharge — New Employment-Burden of Proof.</p> <p>4. In an action for damages for breach of an employment contract, the burden is on defendant to prove that, after plaintiff was discharged, he could have secured other employment, and thus reduced the damages, etc.</p> <p>Appeal and Error — Review—Evidence—Prejudice.</p> <p>5. In an action for breach of an employment contract, defendant was not prejudiced by plaintiff’s testimony that, after he had been wrongfully discharged, he had been unable to obtain employment.</p>

<p>Certiorari — Writ or Review — Questions Reviewable.</p> <p>1. A writ of review presents questions of law alone arising on the record of the inferior tribunal, and such record, though false, cannot be contradicted on re-examination by the reviewing court.</p> <p>' Criminal Law —Plea or Guilty —Withdrawal — Discretion or Court — Review.</p> <p>2. Under Section 1369, B. & O. Comp., providing that the court “may at any time before judgment on a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted therefor,” the question whether accused may withdraw his plea of guilty and interpose a plea of not guilty, rests in the judicial discretion of the trial court, which will not be disturbed on writ of review unless abused.</p> <p>Certiorari — “Writ or Review” — Nature or Proceeding.</p> <p>3. The writ of review granted by a court of superior authority or by a judge thereof on petition, which, as provided by Section 696, B. & O. Comp., describes with certainty the judicial functions claimed to have been exercised to the substantial injury of plaintiff’s right, and which sets forth the errors alleged to .have been committed, is substantially the common-law remedy of certiorari.</p> <p>Certiorari — Writ or Review — Proceedings—“Return.”</p> <p>4. The cause on a writ of review is tried on the return to the writ, which consists of an authenticated copy of the record of the inferior court, from an examination of which it is to be determined whether in the exercise of judicial functions jurisdiction has been exceeded or such functions have been exercised erroneously, and, when the writ of review has been issued, the petition initiating the proceedings has performed its office, except possibly thaj reference may be made to it to ascertain the errors assigned.</p> <p>Certiorari — Writ of Review — Proceedings—Return.</p> <p>5. To determine whether an inferior tribunal has exceeded its jurisdiction or exercised its functions erroneously, the record of its proceedings sent up in obedience to the commands of the writ of review affords the only evidence necessary to be examined.</p> <p>Criminal Law — Denial of leave to Withdraw Plea of Guilty— Review.</p> <p>6. To authorize the court on a writ of review to determine whether the lower court abused its discretion in refusing to permit accused to withdraw the plea of guilty and enter a plea of not guilty, it is essential that the motion to change the plea should be supplemented by the affidavit of accused that he is not guilty of the crime charged, or such other facts as are relied on by him, copies of which sworn statements can be sent up with the return for re-examination.</p> <p>Certiorari — Writ of Review — Questions Reviewable.</p> <p>7. The court on a writ of review will not consider evidence outside the record, unless it was submitted to the inferior tribunal previous to its decision, and where no affidavits were filed in the lower court in support of the motion, and the reasons for such change were merely stated under oath in the petition for the writ, the question of abuse of discretion was not raised.</p>

From Linn: William Galloway, Judge.. Writ of review by Lee Morgan against the State to review a judgment convicting plaintiff of violating the local option law. Proceedings dismissed, and petitioner appeals.

From Linn: William Galloway, Judge. Writ of review by H. F. Hulbert against the State to review a judgment convicting plaintiff of violating the local option law. Proceedings dismissed, and petitioner appeals.

<p>Statutes — Initiative Measure — Subject oe Veto Power.</p> <p>1. An initiative measure, enacted under the initiative and referendum provision of the constitution, is not subject to the veto powers of the Governor.</p> <p>Taxation —Constitutional Provisions — Double Taxation — Initiative Measures.</p> <p>2. The payment by a corporation of the fee provided by Laws 1903, p. 39, which imposed'an annual license fee on corporations according to their capital stock, does not exempt the corporation from paying a 2 per cent tax on its gross receipts, imposed by the initiative measure of 1906, since the annual fee is a business or excise tax, and the other tax is one on the franchise, and hence the taxes do not amount to double taxation, prohibited by Section 82, Article I, Constitution of Oregon.</p> <p>Taxation — Validity oe Statutes — Initiative Measures — Corporations — Franchise Already Taxed.</p> <p>3. The fact that a corporation has paid all taxes assessed and levied on its property, “including the value of its franchise,” does not render invalid the initiative measure of 1906. imposing a tax of 2 per cent on its gross receipts, where at the time the assessment and levy were made there was no law requiring a corporate franchise to be assessed nor providing the manner of estimating the value thereof.</p> <p>Statutes — Amendment oe Constitution — Initiative and Referendum.</p> <p>4. The initiative and referendum amendment to the constitution does not violate the provisions of the Federal Constitution.</p>

From Douglas: James W. Hamilton, Judge. This is a suit by Ida M. Boyle against J. L. Boyle and others, to establish plaintiff’s title to certain lands in Douglas County, Oregon. From a decree in favor of plaintiff, defendants appeal.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Bean.

From Multnomah: MELVIN C. GEORGE, Judge. This is a suit by John J. Kieffer against the Victor Land Co., a corporation, A. L. Helman and Odile F. Collins, to set aside a deed executed by the chief of police of the City of Portland to certain property in said city, sold under a warrant issued for the collection of a delinquent sewer assessment. From a decree in part for plaintiff he appeals. On Motion to Dismiss.

From Baker: William Smith, Judge. This is an action by Bert Hill against G. E. Saugested to recover damages for personal injuries. From an order granting a nonsuit at the close of plaintiff’s testimony, plaintiff appeals. Statement by Me. Chief Justice Bean.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Commissioner King.

From Gilliam: Edwin V. Littlefield, Judge. Petition by G. W. Raper for a writ of review against Edward Dunn, as County Judge, and B. T. Snell and J. W. Dyer, County Commissioners of Gilliam County, Oregon. From an order dismissing the writ, the petitioner appeals.

From Multnomah: John B. Cleland, Judge. This is a habeas corpus proceeding by L. Zimmerman against C. C. Gritzmacher, to obtain the discharge of petitioner from arrest under a warrant issued on an information charging him with operating and maintaining a slaughter house within the corporate limits of the City of Portland. From an order denying the writ, petitioner appeals. Reversed and remanded with directions to discharge ‘petitioner. Statement by Mr. Chief Justice Bean.

From Polk: William Galloway, Judge. This is a suit by the Falls City Lumber Company against Cora P. Watkins a‘nd others. From a decree for plaintiff enjoining the destruction of a flume on defendants’ land, the defendant named appeals. Statement by Mr. Justice Eakin. This is a suit to enjoin the defendants from destroying or molesting a lumber flume, situated upon land of defendant, Mrs. Cora P. Watkins.

From Yamhill: William Galloway, Judge. Statement by Mr. Chief Justice Bean. This is a suit to restrain defendant from interfering with. plaintiff s’ use of the water of the North Yamhill River, for power purposes, by operating splash dams thereon. Plaintiffs are riparian owners, and have a gristmill and light-plant at or near the town of North Yamhill, which are operated by water diverted from the stream by means of a dam and race.

From Wheeler: William L. Bradshaw, Judge. Suit by C. J. McCoy and H. R. McCoy against Charles Huntley. Plaintiffs had a default decree, and, from an order denying a motion to vacate the same, defendant appeals.

From Jackson: Hiero K. Hanna, Judge. This is a habeas corpus proceedings by John Harrington against Wilbur Jones, Sheriff of Jackson County, and from an order refusing to issue the writ, the plaintiff appeals. Reversed and cause remanded with directions to issue the writ.

From Coos: James W. Hamilton, Judge. The defendant, Charles Bay, was convicted of gambling, and from the judgment and sentence which followed, he appeals. Submitted on briefs under the proviso of Rule 16 of the Supreme Court. 50 Or. 580.

From Coos: James W. Hamilton, Judge. W. T. Cook and David Clink were indicted, tried and convicted of gambling, and from the judgment and sentence which followed, the defendants appeal. Submitted on briefs under the proviso of Buie 16 of the Supreme Court. 50 Or. 580.

<p>From Coos: James W. Hamilton, Judge.</p> <p>The defendant, John Nasberg, was convicted of the crime of gambling, and from a judgment of the circuit court of Coos County, sentencing him to pay a fine, he appeals.</p> <p>Submitted on briefs under the proviso of Rule 16 of the Supreme Court. 50 Or. 580.</p>

<p>From Coos: James W. Hamilton, Judge.</p> <p>The defendant, Frank Gardner, was tried and convicted in the circuit court of Coos County, of gambling, and from a judgment of said court sentencing him to pay a fine, he appeals.</p> <p>Submitted on briefs under the proviso of Rule 16 of the Supreme Court. 50 Or. 580.</p>

From Coos: JAMES W. HAMILTON, Judge. The defendant, W. H. Short, was indicted, tried and convicted of gambling, and from the judgment and sentence following, he appeals. Submitted on briefs under the proviso of Rule 16 of the Supreme Court. 50 Or. 580.

From Tillamook: George H. Burnett, Judge. Statement by Mr. Chief Justice Bean. This suit involves the conflicting claim of two railroad companies to use and occupy the pass around Garibaldi Point, in Tillamook County, for railroad purposes.

From Coos: James W. Hamilton, Judge. The defendant, William Ferry, was tried, convicted, and fined for violating the statute in reference to gambling, and he appeals. Submitted on briefs under the proviso of Rule 16 of the Supreme Court. 50 Or. 580.

From Marion: William: Galloway, Judge. This is a suit by Alanson Mattison against Henry N. Mattison to quiet title. From a decree in favor of defendant, plaintiff appeals. Statement by Mr. Justice Eakin. This is a suit to quiet title. Isaac Mattison, father of the plaintiff and defendant, now deceased, by his will made provision for plaintiff in the following language, namely: “2nd.

From Multnomah: Earl C. Bronaugh, Judge. The defendant, David La More, was convicted of the crime of adultery and from the judgment and sentence which followed, he appeals.

From Jackson: Hiero K. Hanna, Judge. The defendant, George Putnam, was convicted of criminal libel and from the judgment and sentence which followed, he appeals.

<p>From Coos: James W. Hamilton, Judge.</p> <p>The defendant, J. C. Wilcox, was convicted of the crime of selling intoxicating liquor to a minor, and he appeals. In an opinion by this court, of January 20, 1909, the judgment of the lower court was affirmed, and in order to have Section 1978, B. & C. Comp, construed, the district attorney filed a petition for rehearing. Within the time in which this petition could be' filed, the Governor remitted the sentence of imprisonment, on certain conditions, and for this reason the former opinion is withdrawn and the question raised by the petition for rehearing is left undecided.</p> <p>Former Opinion Withdrawn.</p> <p>• Affirmed as to Costs.</p> <p>The original case was submitted on briefs under the proviso of Rule 16, of the Supreme Court. 50 Or. 580.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice King.

From Lane: Lawrence T. Harris, Judge. This proceeding is a writ of review by Wallace R. Gue against the City of Eugene, wherein the circuit court rendered a decree annulling a judgment in the recorder’s court of said city, wherein the plaintiff was sentenced to pay a fine of $200 for violating one of the city ordinances, relating to the sale of intoxicating liquors. From the decree in favor of plaintiff, defendant appeals.

From Lane: Lawrence T. Harris, Judge. Writ of review by W. C. Gay against the City of Eugene to review a judgment of conviction in the recorder’s court of defendant city. From a decree of the circuit court annulling the judgment of the recorder’s court, the city appeals. Reversed and remanded, with directions to’dismiss the writ.

<p>Im-ANTé — Juvenile Laws — Penal Statutes — Purpose.</p> <p>1. It was not the purpose of the juvenile act, making It a misdemeanor to contribute to the delinquency of a child, to provide additional methods of prosecuting or cumulative penalties for crimes already provided for by the Oode, and an Information under the act is insufficient where It describes a crime cognizable under other provisions of the Code.</p> <p>Infants — Statutes for Protecting Infants — Construction.</p> <p>2. The general purpose of the juvenile act was to provide for the welfare of neglected and delinquent children, by placing the State in loco parentis so far as possible, with a view to their reformation, and, by the express provision of the act C§ 18, p. 47, Laws 1907), it should be liberally construed to that end.</p> <p>Infants — Prosecution Under Juvenile Laws — Nature of Prosecution.</p> <p>3. In prosecutions of adults under the provision of the juvenile act for contributing to the delinquency of children, the State does not act as guardian in the same manner as It acts for minors, and such prosecution should be conducted in the same manner as other criminal prosecutions.</p> <p>Infants — Protection of Minor Children — Effect of Marriage — “Child.”</p> <p>4. Since under Section 5216, B. & C. Comp., permitting females fifteen years old to marry, and Section 5228, prohibiting the issuance of marriage licenses without the consent of parent if the female is under eighteen years old, a female seventeen years old can marry with her parents’consent. Laws I9D7, pp. 39,121, making it a misdemeanor to do any act tending to.cause a “child” to become delinquent, and providing that the act shall only apply to children under 18 years of age, did not apply to a female seventeen years old who had married with her parents’ consent; a “child” being “a very young person; one not old enough to dispense with maternal aid and care.”</p> <p>Infants — Juvenile Laws — Minors Embraced by — “Child.”</p> <p>5. Section 5216, B. & O. Comp., permits females fifteen years old to marry, and Section 5228 prohibits issuance of a marriage license without the parent’s consent if the female is under eighteen. 'The juvenile act provides that it shall apply only to children under eighteen, and makes it a misdemeanor to endeavor to induce a child to do anything tending to cause him to become delinquent. Held that, on marriage of a child between fifteen and eighteen years of age with parental consent, he loses his legal status as a “child” within the juvenile act.</p> <p>Indictment and Information — Essentials—Negativing Exceptions.</p> <p>6. An information or indictment must negative exceptions expressly or impliedly included in the statute under which it is drawn.</p> <p>Infants — Protection of Children — Information—Sufficiency.</p> <p>7. An information under the juvenile act for contributing to a child’s delinquency, alleging that a specified female under eighteen years old was pregnant, is insufficient, as it does not negative pregnancy in a lawful manner, or as a result of marriage; the presumption being that it was lawful. •</p>

From Multnomah: Calvin U. Gantenbein, Judge. The defendant, J. D. Dunn, was tried and convicted of having contributed to the delinquency of a minor child. From a judgment sentencing him to serve a term in the county jail and to pay a fine, he appeals.

From Columbia: Thomas A. McBride, Judge. Statement by Mr. Justice Eakin. This is a suit to remove a cloud from plaintiff’s title to the west 14 of the northeast 14 and the east 14 of the northwest ti of section 27, township 4 north, range 4 west, of Willamette Meridian, in Columbia County, Oregon.

From Crook: William L. Bradshaw, Judge. Statement by Mr. Chief Justice Moore. This is an action to recover taxes alleged to have been paid under compulsion. The complaint states, in effect: That the defendant is a municipal corporation and one of the political divisions of Oregon.

From Lane: Lawrence T. Harris, Judge. This is a suit by Jack Rodman against William P. Manning and Mary Manning, his wife, to enforce the specific performance of a contract to convey certain lands in Lane County, Oregon. From a decree in favor of. plaintiff, defendants appeal.

<p>On Motion to Retax Costs.</p> <p>For former opinion, see 52 Or. 173.</p>

From Wasco: William L. Bradshaw, Judge. .The defendant, D. Y. .Wright, and another were convicted and fined for peddling without a license, in violation of Laws 1905, p. 339, chap. 206, and they appeal.

<p>Evidence — Declarations—Conduct oe Parties.</p> <p>1. Section 718, subd. 8, B. & O. Comp., providing that evidence may be given of a declaration of another in the presence of a party, and of his conduct in relation thereto, recognizes the rule that, when a declaration is made in the presence of a party understanding the import 'therof and at liberty to reply thereto, a failure to deny an assertion adverse to his rights is tantamount to an admission of the truth of the declaration, but does not permit a party to show that the adverse party, in a prior action brought against him by a third person, called a witness who gave evidence against the rights of the adverse party, and that the adverse party did not contradict such witness.</p> <p>Same — Evidence in Former Action — Parties—Identity.</p> <p>2. Under Section 718, subd. 8, B. & O. Comp., providing that evidence may be given of the testimony of a witness deceased or out of the State, given in a former action between the same parties relating to the same matter, evidence of the testimony of a witness unable to testify, given in a former action, is not admissible where the parties to the two actions are not the same, though the same issues are involved.</p> <p>Trial — Questions of Law or Fact — Weight and Sufficiency of Evidence.</p> <p>3. The degree of proof required of a plaintiff, who, in order to obtain a favorable judgment, must sustain the material issues involved, is generally classed as a probability, and, if, when he rests his case, the facts which were incumbent upon him to establish appear from the evidence as merely possible, the court, upon motion of the adverse party, should grant a judgment of nonsuit for failure to prove a material issue; but, when, however, after the plaintiff rests his case, it appears from his evidence that the facts devolving upon him to make manifest are quite probable, his "cause has passed the danger point of a nonsuit, and, together with the defendant’s evidence, if offered, should be submitted to the jury for them'to determine the credibility of the witnesses and the weight of the testimony, by comparing and considering the balancing probabilities.</p> <p>Trial — Nonsuit—Motions—Admissions.</p> <p>4. A motion for nonsuit admits the truth of plaintiff’s testimony, and every legitimate inference of fact which may be reasonably deducible therefrom.</p> <p>Sales — Actions foe Price — Questions for Jury — Evidence—Nonsuit.</p> <p>5. On an issue as to whether the delivery of wheat to a warehouseman was a sale or bailment, plaintiff’s evidence that it was a sale held sufficient to go to the jury as against a motion for a nonsuit.</p> <p>Trial — Direction of Verdict — Nonsuit—Waiver of Jury Trial— “Motion for Nonsuit.”</p> <p>6. A motion for nonsuit at the close of plaintiff’s case is tantamount to a demurrer to the evidence on the ground that it is insufficient to establish one or more of the material issues devolving upon the plaintiff to prove, and that the cause therefore should not be submitted to the jury, and where defendant offers no evidence after the denial of the motion, and the plaintiff moves for a directed verdict, the court may direct the verdict; there being some evidence to sustain plaintiff’s case, as both parties have waived the right to a jury trial by submitting the case to the court.</p> <p>Appeal and Error — Review—Directed Verdicts —Questions Considered.</p> <p>7. Where a motion for nonsuit at the close of plaintiff’s case is denied, and exception taken, and defendant introduces no evidence, and plaintiff moves for a directed verdict, which is granted and exception taken, on appeal the denial of the nonsuit is only open for review, and will be sustained if there be any evidence to support the judgment.</p> <p>Trial — Direction of Verdict on Court’s Motion.</p> <p>8. The test of the correctness of a direction by the court of its own motion of a verdict for plaintiff on motion for nonsuit being denied, and failure of defendant to introduce evidence, is whether, if, in the absence of a special direction, any other verdict were found, it ought to be set aside.</p> <p>Trial — Motion for Nonsuit — Waiver. .</p> <p>9. Defendant’s motion for a nonsuit, when overruled, is not waived by his introducing evidence, unless he thus cures the defect in plaintiff’s evidence.</p> <p>Trial — Motion for N onsuit — Waiver.</p> <p>10. Defendant by requesting, after his motion for nonsuit is denied, that the cause be submitted to the jury, does not waive his motion.</p> <p>Jury — Right to Jury Trial — Waiver.</p> <p>11. Defendant by moving for nonsuit expressly waives, in the manner prescribed by Section 157, B. <&C. Comp., his right to a jury trial.</p> <p>Appeal and Error — Decision—Adopting Principles Not Suggested by Parties.</p> <p>12. A legal principle, though not suggested by either party at the trial, should be adopted in order to finally dispose of a cause on appeal, if this impels the speedy enforcement of a right or redress of a wrong, and, as a correct exposition of the law, is appropriate to the facts involved.</p> <p>Jury — Waiver of Right to Jury Trial — Revival.</p> <p>18. When defendant waives his right to a jury trial by moving for a non-suit on the ground that plaintiff’s evidence is insufficient to go to the jury, such express renunciation is binding on him till he changes his position by introducing evidence, after denial of his motion, or by requesting submission to the jury.</p>

<p>From Douglas: James W. Hamilton, Judge.</p> <p>This is a suit by George W. Young against Marie D. Young for divorce. From a decree in favor of plaintiff, defendant appeals.</p>

From Multnomah: Melvin C. George, Judge. Special proceeding to review the action of the common council of the City of Portland against W. H. H. Morgan and others, to enforce an assessment for a street improvement. From a judgment in favor of the city, Morgan appeals.

<p>Municipal Corporations — Public Improvements — Special Assessments — Reassessment.</p> <p>1. The purpose of Portland Oity Charter, •§ 400, giving the city council power to make a reassessment where an assessment for a local improvement has been annulled by a court, or where the council shall be in doubt as to its validity, is to provide a curative procedure to supplement a preceding act which has failed; and the council’s power is not exhausted by one attempt to make a reassessment, but it may continue to exercise the granted powers until a valid reassessment is secured.</p> <p>Municipal Corporations — Local Improvements — Improvements Under Former Charter — Power of City to Levy Assessments.</p> <p>2. The fact that under Portland Oity Charter 1898, § 127 (Laws 1898, p. 150), under which a local improvement was made, the contractor was required to look solely to the property affected by the improvement and the owners thereof for compensation, would not preclude the city under its subsequent charter from exercising the power to charge the property benefited by the improvement with a lien for its share of the cost.</p> <p>Municipal Corporations — Public Improvements — Reassessment — Remonstrance.</p> <p>8. Portland City Charter, § 400, under which a reassessment for a local Improvement was made, provides that a reassessment of the costs of a local improvement shall not he made in case of a street improvement, where a remonstrance sufficient in law to defeat it shall have been filed. The Charter of 1898, under which the original assessment was made, provided that when a remonstrance signed by the owner of more than one-half of the property abutting on the proposed works should be filed it should be a bar to the proceedings, unless the owners of one-half or more of the property should petition therefor. Held that, where a remonstrance was filed against the original proceeding, it was for the council to determine whether it was signed by the requisite number of property owners, so as to be a bar to the proceedings at the proper time during the original proceeding, or on the hearing of the objections to the proposed reassessment, if urged as an objection thereto.</p> <p>Municipal Corporations — Local Improvements — Resolution for Reassessment — Sufficiency.</p> <p>4. A resolution for a reassessment upon property for a local improvement under Portland City Charter, § 400, conferring power on the council to make a reassessment, and providing that the procedure therefor shall be sufficient if it appears therefrom that the previous assessment has been set aside, annulled, or declared void by a court of competent jurisdiction, or that the council is in doubt as to its validity, declares the district benefited by the improvement for which the reassessment is made, and directs the auditor or city engineer to prepare a preliminary reassessment upon the property included therein within a fixed time, need not contain findings as to the value of the improvement or the benefit thereof, or whether the street had in fact been improved in substantial compliance with the contract, but whether the street has in fact been so improved (if not previously determined by the council), the benefit to abutting property and the proper apportionment thereof are questions which may be raised by the property owners on. objections to the reassessment.</p> <p>Municipal Corporations — Local Improvements — Reassessment — Hearing- of Objections.</p> <p>5. Under Portland City Charter, § 400, giving to the owners of property affected by a proposed reassessment by the council for a local improvement, the right within ten days from the last publication of the required notice thereof, to file with the auditor their objections in writing to the assessment, the objections may raise either questions of law affecting the validity of the proceedings, or of jurisdiction or power of the council, or they may involve questions of fact, súck as that the improvement had not been made in substantial compliance with the contract and ordinance providing for it, or that the proceedings had been defeated by a proper remonstrance, if the questions are not already concluded by the council’s findings; and the council is required to hear and determine such objections as are open to the property holder, and it should appear in the record of its proceedings or the reassessment ordinance that it has done so, and while, If the issue raised by the preliminary assessment and the objections be an issue of law, it will be sufficient if the minutes show that it has been overruled, if issues of fact be raised there should be a finding of the council thereon, either in the record or ordinance, sufficient to show that the questions have been heard and the result, and they cannot be summarily disposed of by a general order overruling them or ordering them to be placed on file.</p> <p>Municipal Corporations — Local Improvements — Reassessment — Review — Presumptions.</p> <p>6. It will not be assumed'by a court reviewing proceedings for the reassessment of a local improvement, that issues of fact raised by objections to the preliminary reassessment were determined by the council adversely to the objectors, from the mere fact that the council passed the reassessment ordinance, except so far as recitals in the ordinance may be a finding thereof.</p> <p>Municipal Corporations — Local Improvements — Assessment and Re assessment — Hearing op Objections.</p> <p>7. The right of property owner to make objections to a proposed assessment or reassessment against his property for a local improvement, or a reassessment under Portland City Charter, § 400, providing for reassessment for local improvements, and have the objections heard and determined by the council, is a substantial right, and all the requirements of the law affecting his rights must be complied with, and the proceedings must show upon their face that the council has considered and passed upon all questions made necessary by the charter, and the result at which they have arrived.</p> <p>Municipal Corporations — Local Improvements — Reassessment — Hearing oe Objections — Sufficiency of Objections.</p> <p>8. That a property owner may insist upon his right to be heard on his objections, he must specifically set out wherein the proposed reassessment is invalid or unjust, so that the council may be advised of the question he presents for determination, as the presumption is that the auditor upon whom the charter imposes the duty of making the preliminary reassessment has discharged his duty properly, and a general objection that it is not made according to benefits or that the apportionment is unjust is not sufficient.</p> <p>Municipal Corporations — Local Improvements — Premature Reassessment — Hearing — Failure to Hear and Determine Objections.</p> <p>9. Where it appears from the record, that the council referred objections of property owners presenting questions of fact, to a reassessment under Portland City Charter, § 400, relating to reassessment for local improvements, to a committee, and that the committee did not report on them until after the reassessment ordinance had been adopted, the reassessment ordinance was prematurely and erroneously passed.</p> <p>Municipal Corporations — Local Improvements — Preliminary Reassessment by Auditor — Sufficiency.</p> <p>10. The preliminary reassessment made by the auditor under Portland City Charter, § 400, providing for a reassessment for a local improvement and the procedure therefor, is merely intended to advise property owners of the amounts proposed to be charged against their property, and form the basis for the council’s -action in making the actual reassessment, and it is not necessary that the auditor should indicate thereon the method pursued by him, nor that his reassessment should contain a statement that it was made in accordance with the benefits according to the provisions of the charter, as that will be presumed.</p> <p>Municipal Corporations — Local Improvements — Reassessment — Duty of Council.</p> <p>11. Under Portland City Charter, § 400, providing for the reassessment for a local improvement and the procedure therefor, the city council is the only tribunal authorized to make a reassessment, it having power in its discretion to revise and correct the auditor’s preliminary reassessment or set it aside and order a new one, and it is essential to the validity of the reassessment as made by the council, that it clearly appear upon its face, that the provisions of the law, for the benefit of the property owners, have been observed, and that the council has exercised its judgment in passing upon the questions of benefits and in applying to each lot and parcel of land benefited, its proportionate share of the cost.</p> <p>Municipal Corporations — Local Improvements — Reassessments— Benefits — Conclusiveness of Council’s Findings.</p> <p>12. When a city council in making an assessment for a local improvement has exercised its judgment in determining the extent to which property is benefited, and the proportionate share of the cost which should he charged against it, its decision, in the absence of fraud or demonstrable mistake of fact, is conclusive, except as a right of appeal may be given by the city charter, or unless it has proceeded upon an erroneous principle of law.</p> <p>Municipal Corporations — Local Improvements — Reassessment.</p> <p>13. If a reassessment for a local improvement by a city council purports to have been made according to benefits, it will not be disturbed because it does not clearly appear on its face that the council has considered and passed on the question of benefits, except on appeal as provided by the city charter, if under any conceivable condition the finding of the council could legally and properly have been made, even though the reassessment may have been in fact made according to the front-foot rule, when the charter requires that it shall be made according to benefits.</p> <p>Municipal Corporations — Local Improvements — Reassessment.</p> <p>14. It is not necessary that the record of the council or ordinance making a reassessment for a local improvement should disclose the method of assessment.</p> <p>Municipal Corporations — Local Improvements — Reassessment.</p> <p>15. When an ordinance of the City of Portland making reassessment for a local improvement contained a finding that the property assessed was specially benefited in the several respective amounts charged to it, but contained no finding that each parcel of land within the assessment district was assessed only to the extent of its respective and proportionate share of the full value of the improvement, and it affirmatively appeared that such an assessment had not been made, the reassessment ordinance was invalid, Portland City Charter, § 400, providing that the reassessment shall be made in accordance with the benefits, and also that each parcel of land shall be assessed only to the extent of its proportionate share of the cost.</p>

<p>From Coos: James W. Hamilton, Judge.</p> <p>Statement by Me. Justice King.</p> <p>This suit was brought under Section 516, B. & C. Comp., to quiet title to the west % of the southeast % of section 15, and the west V2 of the east of section 22, all in township 25 south, range 13 west, in Coos County. ■</p> <p>The complaint is in the usual form. Service of summons was had by publication, and default taken as to the Belt Line Railway Company. J. H. Bennett and C. F. Humphrey answered denying plaintiff’s ownership and possession, and set up an affirmative defense, the essential averments of which are:</p> <p>That on or about August 26, 1902, the Great Central Land Company, a corporation, herein referred to as the “Central Company,” became the owner and holder of a written contract to purchase the property described from C. H. Merchant, byfthe terms of which, in consideration of a cash payment of $3,750, there was placed in escrow with the Flanagan & Bennett Bank in Marshfield, Or., a deed conveying a good and sufficient title to the Central Company in and to _ the real property in question, with the understanding that the deed should be delivered to the company, or its assigns, upon the payment to Merchant’s credit, within one year from the date of the agreement, the further sum of $8,250, with interest at 6 per cent per annum. That the Belt Line Company succeeded to all the rights in and to the real and personal property held under the Merchant contracts. That on August 26, 1903, the balance of the purchase money due under the Merchant contract being due and unpaid, Merchant brought a suit foreclosing the contract of sale, wherein the circuit court decreed that he be paid $8,200 as the balance found due on the contract, and on the receipt thereof that he execute to the Central Company a deed to the property. That on February 26, 1904, Merchant and wife, having received the balance due on the contract, executed to the Central Company a deed conveying the fee-simple title in and to the realty involved, whereupon deeds thereto were also executed by both the Central and Belt Line Companies to John K. Kollock, the plaintiff, which deeds were in form an absolute transfer of the title to the lands described, but were intended only as a mortgage to secure the payment of the balance of the purchase price paid Merchant by the Central Company, which plaintiff had loaned, or caused to be loaned, to the company, for such purpose, and that plaintiff agreed, upon receipt thereof, to re-convey the property to the Central Company and its assigns. That the deed to Kollock from the Belt Line Company was not executed in the corporate name of the company, and accordingly not the deed of such company. That on April 4, 1904, the Central and Belt Line Companies, respectively, in each of their corporate names, through their president, L. D. Kinney, in good faith, for a valuable consideration, by separate deeds, granted, bargained, sold, conveyed, and confirmed to the defendants Humphrey and Bennett all of the real estate involved. That Kinney, at the time of the execution thereof, was the owner and holder in law, or equity, or in control, of nearly all of the subscribed and issued capital stock of such companies and in position to have caused the previous authorization, as well as the subsequent ratification of the conveyances mentioned. That immediately upon the execution of the last-mentioned deeds the companies named abandoned their corporate franchises, charters, and privileges oy failing to comply with the statute respecting the payment of the annual license fees for the years beginning July 1, 1904, and 1905, resulting in their dissolution. That by virtue of the deeds last mentioned defendants Humphrey and Bennett are the owners of all the right, title, interest, and estate of such companies in and to the property involved, including their right of redemption from the mortgages held thereon by plaintiff under his deeds. That the realty in question is in the actual possession of L. D. Kinney under a contract with one F. B. Waite, therein recited to be the owner, under and by virtue of the terms of which Kinney is offering, in open market, lots, pieces, and parcels of the land for sale. That the defendants are not advised of the exact amount of indebtedness, or of the facts as to whether any payments have been made to, and accepted by, plaintiff in discharge, in whole, or in part, of the indebtedness occasioned by the transactions mentioned, and for which the deed to Kollock was intended to secure, by reason of which the amount necessary to a redemption of the real estate therefrom is unknown to defendants; but that they have offered to pay plaintiff the amount due thereon, requesting of him a full and complete discharge of the lands and premises from such lien. That plaintiff denies the right of defendants to redeem, and has refused to render them a statement of the amount necessary for such purpose, which amount, whatever it may be, they are ready, willing, and able to pay as soon as the sum necessary therefor may be determined, and are ready, willing, and able in all things to do equity in making redemption of the premises in controversy. These averments are followed by a prayer for appropriate. relief, including the right to redeem, etc.</p> <p>Plaintiff replied admitting the affirmative allegations of the answer, except the averments to the effect that the deeds to him were understood, or intended to be held, as mortgages, or executed for any other purpose than of conveying to him all interest such company had in the land, or that either of the companies, through Kinney, as president, in good faith, or for a valuable consideration, conveyed the property to Humphrey and Bennett, and avers: That the plaintiff’s deeds are bona fide absolute conveyances to him of the property in question ; that the pretended deeds to Humphrey and Bennett were executed wholly without authority from the corporations, or either of them; that in signing the companies’ corporate names to the instruments of writing, through which defendants assert title, Kinney acted without authority; that such instruments were wholly without consideration and were delivered to Bennett under an express understanding, and on condition, that they were not intended to be and should not have the force or effect of deeds, or conveyances of the land therein described.</p> <p>From the evidence taken before it, the trial court found, in effect: That plaintiff, by deeds duly and regularly executed to him, prior to and inclusive of February 24, 1904, became the owner of the lands described in the complaint, and is in possession thereof, holding the legal title thereto as trustee, with power to sell the same to satisfy the outstanding indebtedness against the property, amounting to $54,091.70, due the Title Guarantee & Trust Company of Portland, Or.; that on April 4, 1904, the Central and Belt Line Companies, by L. D. Kinney and Ralph Green, as president and director, respectively, of each, executed to defendants Humphrey and Bennett, deeds purporting to convey to them the realty involved, which deeds appear to have been regularly executed, except that no corporate seal appears thereon; and that the pretended conveyances were delivered to Bennett</p> <p>and Humphrey with an express understanding that they were to advance a sum of money to pay the indebtedness, or a portion thereof, owing the Title 'Guarantee & Trust Company, the instruments to be returned to Kinney if such moneys should not be paid, none of which indebtedness have defendants at any time paid, or pretended to pay, by reason of which they, and each of them, are in default, entitling plaintiff to a decree as demanded. A decree was entered accordingly, from which defendants Humphrey and Bennett appeal.</p>

From Clackamas: Thomas A. McBride, Judge. This is an action by Clara Batdorff against the City of Oregon City and its councilmen, for personal injuries alleged to have been caused by the negligence of defendants in failing to keep in repair a sidewalk along a public street in said city. From a verdict and judgment for plaintiff, against the defendant, Oregon City, it appeals, and, from that part of the judgment in favor of the councilmen of said city, the plaintiff appeals.

From Multnomah: Earl C. Bronaugh, Judge. This is an action by M. A. M. Ashley and C. E. Rumelin, partners doing business under the firm name of Ashley & Rumelin, against C. O. Pick, doing business under the firm name of the C. O. Pick Transfer & Storage Company. From a judgment in favor of plaintiffs, defendant appeals.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Eakin. This is an action by plaintiff, J. W. Dryden, to recover damages for a personal injury. Defendant is a corporation organized under the laws of Oregon, and engaged in a general logging business in Oregon and Washington. At the time of the injury complained of, defendant was engaged in logging in the State of Washington by means of a chute made of logs embedded in the ground.

From Wasco: William L. Bradshaw, Judge. Statement by Mr. Commissioner Slater. On June 21, 1881, in Wasco County, of this State, Jesse Neal died seised and possessed of the north y> of the south y% of section 26, township 2 north, range 10 east, Willamette Meridian, situate in that county. There survived him his widow, Lucy M. Neal, and four children, viz., Flora, who was then 21 years of age, Frank, 13, Oscar, 10, and Grace 7 years old.

From Clatsop: Thomas A. McBride, Judge. Statement by Mr. Justice Eakin.

From Crook: William L. Bradshaw, Judge. Action by H. F. Dietzel against S. P. Conroy and another. From an order denying a motion to set aside a default decree for plaintiff and to permit an answer, defendant named appeals.

<p>From Multnomáh: Calvin U. Gantenbein, Judge.</p> <p>On Motion to Dismiss Appeal.</p> <p>Statement by Mr. Justice Slater.</p> <p>On September 3, 1908, upon the verified petition of the relator, O. N. Ford, an alternative writ of mandamus was issued in this case against F. S. Fields, county clerk of Multnomah County, commanding him immediately after the receipt of the writ, or as soon thereafter as could be done according to law, to prepare, transmit, and supply through judges of election to the voters residing in a certain territory, described in the writ, ballots, with the question of annexation of such territory to the City of Portland printed thereon, and do all things necessary to submit such question of annexation to the voters in the district, ■ so that they might vote thereon at the next general election to be held on November 3, 1908, or that he show cause on October 2, 1908, why he refused to comply with the writ. On that day he appeared and demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action or entitle the plaintiff to the relief demanded. The demurrer being overruled, he refused to plead further, and on October 15th judgment was entered ordering a peremptory writ, which was issued and served upon him. On the same day he perfected an appeal from the judgment and filed a transcript in this court on October 24th. On November 4th plaintiff filed a motion to dismiss the appeal on the ground that' defendant had in all things- complied with the writ. The motion is supported by the affidavit of the defendant, in which he says that 30 days previous to said election he caused to be duly posted in each of the election precincts within said territory notices that the question of annexation would be voted upon at the election to be held on November 3, 1908; that he duly caused ballots to be printed for each of said precincts, or portions thereof, within the territory, with the question of annexation printed thereon, and furnished such ballots to the proper election officers, and did all other acts and things necessary to secure the submission of the question of annexation to the qualified voters within the territory affected thereby, and in all things did as he was commanded in the writ; and that the question of annexation was duly voted upon by the qualified voters of the territory to be affected thereby.</p> <p>Submitted on briefs under the proviso of Rule 16 of the Supreme Court. 50 Or. 580.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. Statement by Mr. Commissioner Slater. On September 6, 1886, plaintiff obtained a judgment against defendant in the circuit court for Multnomah County, for the sum of $4,399.15 and $14.95 as costs, which was entered of record on the same day; and this action was brought by the plaintiff on January 28, 1907, to recover the amount due thereon.

From Jackson: Hiero K. Hanna, Judge. The defendant, H. M. Coss, was tried and convicted of the crime of statutory rape, and from the sentence following such conviction, he appeals.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice King. Defendant was convicted of murder in the first degree, and from a judgment thereon prosecutes this appeal.

From Josephine: Hiero K. Hanna, Judge. This is an action of replevin commenced in a justice’s court by E. D. Thompson against Robert Colvin. There was a judgment for plaintiff, and defendant appealed to the circuit court, where plaintiff again had judgment, and defendant appeals.

<p>From Multnomah: Calvin U. Gantenbein, Judge.</p> <p>This is a suit by W. G. Bohn, doing business under the name of Mt. Scott Lumber Co., against W. E. Wilson and T. S. Lee, to foreclose a mechanic’s lien. From a decree rendered in favor of plaintiff, defendant Wilson appeals.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit to foreclose a mechanic’s lien. The substantial averments of the complaint are that defendant Wilson is the owner of certain described real estate in Portland; that about the 1st of November, 1906, he entered into a contract with T. S. Lee, by the terms of which Lee undertook to furnish the necessary materials and construct for him two dwelling houses on such property; that between the 5th of November, 1906, and the 12th of December, 1906, plaintiff sold and delivered to Lee building materials, to be used, and which were used, by him in the construction of such dwelling houses for defendant Wilson, of the reasonable value of $858.44; that Lee subsequently abandoned his contract and thereafter, between the 13th day of December, 1906, and the 20th day of the same month, plaintiff sold and delivered to Wilson building materials, which were used by him in the completion of the two dwelling houses referred to, of the reasonable value of $161.13; that no part of the materials furnished tó Lee and Wilson has been paid, except the sum of $869.57, and there is now due and owing thereon the sum of $150, over and above all legal claims and offsets; that on about the 19th of January, 1907, and within 30 days after plaintiff had ceased to furnish the materials, he filed in the office of the county clerk of Multnomah County “his certain verified claim,” showing that defendant Lee was the agent and contractor of defendant Wilson for the construction of two dwelling houses upon the land described in the complaint; that plaintiff sold and delivered to Wilson, through Lee, goods, wares, and merchandise, and building materials of the reasonable value of $858.44, to be used by Lee in the construction of such houses, which materials were delivered upon the premises between the 5th of November and the 12th of December, 1906; that after such materials were furnished to Lee, he abandoned his contract, and thereafter, between the 13th day of December and the 30th of December, plaintiff sold and delivered to Wilson building materials, which were used by him in the construction of the dwelling houses and to complete the same, of the reasonable value of $161.13; that such verified claim contains a correct statement of the account and demand against defendant for materials so furnished, after deducting all just claims and offsets, and a description of the property to be charged with the lien therefor; and that Wilson was the owner, or the reputed owner, of the same.</p> <p>A demurrer to the complaint, because it did not state facts sufficient to constitute a cause of suit, was overruled, and defendant answered, denying the averments concerning the nature and character of the lien notice filed, and pleading payment for all materials furnished or used in the buildings. The cause was tried on the testimony, and a decree rendered in favor of plaintiff, from which defendant Wilson appeals.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice King.

<p>Animals — Brands—Kvidence of Ownership — Record of Brand.</p> <p>1. Under Section 4201, B. & O. Oomp., providing that in suits where title to stock is involved, the brand on an animal shall be prima faeie evidence of ownership, provided the brand has been duly recorded, and that proof of the right of the person to use the brand shall be made by certified copy of the record, where a brand is recorded as required by the statute, the record is primary evidence of the facts therein stated, and may be proved by a copy thereof, certified by the legal keeper, under the express provisions of Section 755, subd. 5, B. & O. Comp., though the brand was not entitled to be recorded because it was the same, or similar to, a previously recorded one.</p> <p>Animals — Brands—Kvidence—Weight—Certified Copy of Record.</p> <p>2. The prima faeie ease as to title made by the copy of the record may be overcome by any competent proof, the effect of the recorded brand as evidence being for the jury.</p> <p>Animals — Brands—Recording—Similarity of Brands.</p> <p>8. A brand for horses resembling a horseshoe with points either up or down is not similar to a brand consisting of a horseshoe with open end down and a bar immediately under it, within the meaning of Section 4202, B. & C. Comp., providing that when a brand has been recorded in a county, no other person can record the same brand, or a similar one, except with the written consent of the owner of the recorded brand.</p> <p>Animals — Brands-Recording.</p> <p>4. Section 4201, B. <fc O. Oomp., providing that, when a certificate of a stock brand is delivered to the county clerk in the form required by statute, he shall record it in a book to be kept for that purpose, contemplates that the certificate of brand as filed shall be recorded in full, and the entry in some book of what the clerk conceives to be a. memorandum of its contents, is not a compliance with the statute.</p> <p>Animals — Stock Brand.</p> <p>5. The effect as evidence of a certified copy of a recorded stock brand being purely statutory, a compliance with the statutory requirements is necessary to give the copy such effect.</p>

<p>From Columbia: Thomas A. McBride, Judge.</p> <p>Statement by Mr. Justice Eakin.</p> <p>This is an action on a redelivery undertaking. On the 22d of December, 1906, plaintiff, J. N. Jones, commenced an action, in the circuit court for Columbia County, against J. D. Short to recover the sum of $1,494.15, and by a proper proceeding therein procured an attachment of certain personal property belonging to said defendant Short. Whereupon, on the same day, for the purpose of securing a release of the attached property, the defendants herein executed and delivered to said sheriff a redelivery undertaking, authorized by the provisions of Section 306, B. & C. Comp. Omitting the title, said undertaking is as follows:</p> <p>“Whereas, in the above-entitled action, wherein J. N. Jones is plaintiff, and J. D. Short is defendant, an attachment has been regularly issued out of the above-entitled court, and duly levied upon the property of the said defendant by the sheriff of Columbia County, State of Oregon, a schedule of which property is hereto attached, marked ‘A,’ and made a part hereof, and the said defendant has not appeared in said action; and whereas, a return of all and singular the said property so levied upon by the said sheriff is desired by the said defendant; and whereas, said action is brought to recover the sum of $1,436.55, with legal interest thereon from October 9, 1906, and costs and disbursements in said action; and whereas, the value of the property so levied upon and attached herein by the said sheriff is the property of the defendant herein, and is of the value of $1,600: Now therefore we, the undersigned, residing at Bainier, in the County of Columbia, State of Oregon, in consideration of the premises, do hereby jointly and severally undertake and bind ourselves, our heirs, administrators, and executors in the sum of $1,600 that we will redeliver all of the aforesaid and described property of the said sheriff of said Columbia County, State of Oregon, in case plaintiff should recover judgment in said action, or pay the value thereof. Sealed/’ etc.</p> <p>Thereupon the sheriff delivered said property to defendant Short. Thereafter, on June 4, 1907, plaintiff obtained a judgment against said Short for the sum of $1,478.90, and on June 8, 1907, caused an execution to issue thereon, by authority of which the sheriff demanded the redelivery of the property. Part of the property so attached was perishable, such as vegetables, fresh meat, and fruits, and also included hams, bacon, and canned goods, portions of which had been sold by defendant Short, and defendants were unable to return the whole of the property so released to them upon the undertaking.</p> <p>As a defense defendants allege that they tendered to the sheriff, in satisfaction of the undertaking, such portion of the goods as remained unsold, and “an amount equal to the highest possible value that said perishable stuff had ever had,” which he refused to receive. The sheriff thereupon returned said execution, reciting the breach of the undertaking by the refusal of defendants to redeliver the property. Thereafter, on the 11th day of June, 1907, an alias execution was issued to him, and by authority thereof he levied upon such property of the defendant as he could secure, which consisted largely of the attached property not disposed of by defendants, from which he realized $656.84. The cause was tried by a jury, and a verdict rendered in favor of plaintiff for the sum of $841.03. From the judgment thereon defendants appeal.</p>

<p>From Multnomah:, Arthur L. Frazer, Judge.</p> <p>This is a suit for divorce by Charles B. Andrew, against Ella G. Andrew, on the alleged grounds of cruel and inhuman treatment and .personal indignities by defendant toward plaintiff, rendering his life burdensome. From a decree in favor of plaintiff, defendant appeals.</p>

From Multnomah: Arthur L. Frazer, Judge. This is a suit by Alex. McInnis and E. G. Reed, partners doing business under the firm name of McInnis & Reed, against D. E. Buchanan to foreclose a mechanic’s lien upon defendant’s building and lot. From a decree in favor of plaintiffs, both parties appeal; the defendant being designated herein as appellant. Statement by Mr. Justice Slater.

<p>Brokers — Receipt oj? Money — Duty to Account por.</p> <p>1. Any money received by a broker, employed to sell land from a purchaser, belonged to the principal, since an agent will not be permitted to derive profit from the subject-matter beyond his lawful compensation.</p> <p>Brokers — Contracts—N attire.</p> <p>2. A contract respecting land purchased by plaintiff through defendant, providing that plaintiff should retain $1,000 of the purchase price for six months, during which time defendant was authorized to sell for £16,000, that if he so sold, plaintiff should pay over the $1,000, otherwise it should be forfeited, and that, if defendant sold the land for more than $16,000, he should receive a commission in addition, merely constituted defendant agent to sell the land, and did not give him an option or interest in the land which he could dispose of for his own benefit.</p>

<p>Municipal Corporations — Street Improvements — Assessments.</p> <p>1. A statement in the records of the proceedings of a city council, making a reassessment for a street improvement, that objections against the reassessment were on motion overruled, sufficiently shows that the objections were heard and determined, where they relate to questions of law; but, where the objections relate to issues of fact, the record must affirmatively show, by findings or recitals, that the council heard and determined the issues, together with the result thereof.</p> <p>Municipal Corporations — Street Improvements — Assessments.</p> <p>2. Where, before the acceptance of a street improvement, owners of property subject to an assessment for the cost thereof objected to its acceptance, and their objections were heard on the merits, under the provisions of the city charter, and overruled, or the right to object to the acceptance was waived, and the improvement was accepted, the owners could not object to a reassessment on the ground that the improvement was not made according to the ordinance.</p> <p>Municipal Corporations — Street Improvements — Assessments.</p> <p>3. Where a reassessment proceeding in a street improvement proceeding is alone sought to be reviewed on writ of review, the facts necessary to give the city the right to make the reassessment must appear in the return, either by making the record a part of the return, or by recitals in the resolution authorizing the reassessment.</p> <p>Municipal Corporations — Street Improvements — Assessments — Validity.</p> <p>4. Where the objections to a preliminary reassessment for a street improvement that the improvement had not been completed, and the estimated cost thereof assessed, were not heard and determined by the city council, the subsequent proceedings in making the reassessment were void.</p> <p>Municipal Corporations — Street Improvement — Assessments.</p> <p>5. tinder Portland City Charter, § 400, providing that the new assessment for the cost of a .street improvement must be made on the lots benefited “to the extent of their respective and proportionate shares of the full value thereof,” the council must determine whether the amount assessed against each lot or part thereof is in just proportion to the benefits, and a reassessment ordinance must show that the council determined that the reassessment was proportionate among all the lots according to benefits.</p>

From Multnomah: Melvin C. George, Judge. Proceeding by James Applegate and others against the City of Portland and others to review a reassessment for the special improvement of a street. From a judgment of dismissal, plaintiffs appeal.

From Multnomah: John B. Cleland, Judge. Statement by Me. Justice Bean. On September 12, 1904, an information was filed in the circuit court for Multnomah County, signed “John Manning, District Attorney, by G. C. Moser, Deputy,” charging the defendant, Charles W. Walton, with the crime of assault with a dangerous weapon. On the next day he was duly arraigned and took time to plead. On the 16th he demurred to the information, which demurrer was overruled on the 5th of October.

From Jackson: Hiero K. Hanna, Judge. Suit by John Harrington against Frances Margaret Snyder, as executor of the estate of Victor E. Snyder, deceased. There was a decree for defendant, and plaintiff appeals. On Motion to Affirm the Decree.

From Union: John B. Cleland, Judge. This is an action by S. S. Boothe against the Farmers & Traders National Bank of La Grande. From a judgment for plaintiff, defendant appeals. Statement by Mr. Justice Moore. This is an action to recover an alleged residue of deposits made by or for the plaintiff with the defendant.

From Multnomah: John B. Cleland, Judge. On Motion to Dismiss. Statement by Mr. Commissioner Slater.

From Multnomah: Arthur L. Frazer, Judge. Statement by Mr. Commissioner Slater. This action was brought by Ellen Galvin, administratrix of the estate of her deceased husband, Michael Galvin, to recover damages for his death, occurring June 11, 1906, occasioned by injuries received two days prior thereto while in the employ of Brown •& McCabe, and as the result of their and Matthew Troy’s alleged joint negligent act.