Volume 59 — Oregon Reports

<p>Rewards — Offer—Effect.</p> <p>1. There is no liability upon an offer of a reward to any one who performs some specific act until the act stipulated has been performed, but the offer is to be construed by the same rules as other contractual offers.</p> <p>Rewards — Right to Reward.</p> <p>2. To entitle plaintiff to a -reward for finding a lost pocketbook, it was immaterial that she found the book before the offer was made, the reward not being for the finding but for the return of the book.</p> <p>Finding Lost Goods — Reward—Lien.</p> <p>3. A finder of a lost pocketbook is entitled to a lien thereon for the amount of a reward offered for it.</p> <p>Finding Lost Goods — Statutory Provisions — Applicability.</p> <p>4. Sections 7500, 7591, L. O. L., providing for disposition of lost property when the owner is unknown does not apply to a finding where the owner is known although his address is unknown.</p>

From Union: John W. Knowles, Judge. Statement by Mr. Justice Burnett. This is an action by the Oregon Railroad and Navigation Company against O. F. Coolidge.

From Umatilla: Henry J. Bean, Judge. This is an action by C. M. Kearney against the Oregon Railroad & Navigation Company. From a judgment in favor of plaintiff, defendant appeals, and plaintiff now moves to dismiss the appeal. Statement by Mr. Justice McBride. This is an action for damages for personal injuries to plaintiff, resulting from alleged negligence of defendant while plaintiff was a passenger upon defendant’s railway train.

From Wallowa: John W. Knowles, Judge. Statement by Mr. Justice Moore. The defendant, E. T. Schluer, was charged with the crime of selling intoxicating liquor in Wallowa County March 10, 1911, in violation of the local option law, which, it is alleged, was then in force in the entire county.

From Tillamook: George H. Burnett, Judge. Statement by Mr. Justice Bean. This is an action in ejectment by John B. Harter against W. S. Cone for the possession of lots 3 and 4, block 9, and lots 7 and 8, block 4, Fuller’s Addition to the town of Bay City, Oregon. The cause was tried by the court without the intervention of a jury, and findings made in favor of defendant, and from a judgment thereon plaintiff appeals.

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit by C. R. Templeton against Cecil B. Lloyd. The facts are substantially as follows:</p> <p>On May 21, 1909, defendant executed to plaintiff a note, due in 90 days, for $2,000, with interest at 8 per cent, and a mortgage to secure the payment of the same upon one Stearns touring car, No. 1116. The note not being paid this suit was brought. The complaint sets forth the note and mortgage, which were duly recorded.</p>

From Multnomah: John B. Cleland, Judge. This is an action by C. R. Templeton against Cecil B. Lloyd. Plaintiff moves to dismiss defendant’s appeal from the judgment rendered in the court below. Motion to dismiss appeal denied, and judgment affirmed.

From Marion: George H. Burnett, Judge. This is an action by the Blumauer-Frank Drug Company against the Horticultural Fire Relief of Oregon. There was a judgment in favor of plaintiff, and from an order setting aside the judgment and granting a new trial, plaintiff appeals, and defendant moves to dismiss the appeal.

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Chief Justice Eakin. The plaintiff, John H. Lawrey brings this suit to enjoin the defendant, Charles Hanna, from interfering with his possession of certain government land, and for a decree that he is the owner thereof, his right to purchase which land having been contested in the United States Land Office by the defendant.

From Coos: John S. Coke, Judge. This is a suit by the Oregon Timber & Cruising Company, a corporation, against Waldemar Seton and W. F. Matthews. Plaintiff appeals, and defendant, W. F. Matthews, moves to dismiss the appeal. Statement by Mr. Justice Bean. This is a suit to set aside a decree and deed, and to subject certain property to the payment of claims against the Courteney Lumber Company, insolvent debtor.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Moore. This is a suit by Tyler Woodward to enjoin A. L. Bar-bur, auditor of the City of Portland, from placing on official ballots, to be Used at an election to be held in Portland, the title of a proposed amendment to its charter, recommended by initiative petitions.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Chief Justice Eakin. This is a proceeding by writ of mandamus issued upon the petition of M. O. Collins and Dan Kellaher against F. S. Grant, city attorney, George Tazwell, municipal judge, and N. D. Beutgen, municipal clerk of the city of Portland, to compel them to commence and prosecute proceedings against John Doe and Richard Roe for obstructing a street in violation of a city ordinance.

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBride. Held: while the load was being lifted, by guy ropes, known as the inshore and offshore guy ropes. Plaintiff’s duties consisted in working on the dock, placing lumber in the sling to be hoisted.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice Bean.

<p>From Multnomah: John B. Cleland, Judge.</p> <p>This is a suit by W. A. Adams against W. F. MacKenzie and Ida May MacKenzie to foreclose a mechanic’s lien. From a decree in favor of defendants, plaintiff appeals.</p>

From Wasco: William L. Bradshaw, Judge. This is a suit by O. C. Dean, Andrew Pearson, Alfred Shepler and Theodore Shepler, partners doing business under the firm name of Dean & Pearson, against the Washington Navigation Company, a corporation, W. S. Chapman, C. D. Moore and William Priest, to enjoin the defendants from maintaining a rival ferry across the Columbia River between Hood River, Oregon, and White Salmon, Washington.

<p>Wills — Construction—Circumstances Connected With Making op Will.</p> <p>1. The court, in construing a will to ascertain the intention of testator, will take into consideration the ability of the person who drew the will to express the terms, objects, and purposes desired.</p> <p>Wills — Construction—Limitation Over.</p> <p>2. Where a devise to a testator’s son for his sole use, with gift over in case of his death without issue living at the time of his death, creates a life estate in the son, the limitation over is not indefinite, but takes effect at the son’s death without issue surviving.</p> <p>Wills — Estates Acquired — Limitations.</p> <p>3. Under Section 7103, L. O. L., the absence of the word “heirs” from a devise does not necessarily imply that a life estate only is given, and, where a devisee takes an absolute estate, any attempt to limit the fee will not be sanctioned.</p> <p>Wills — Devisees—Time op Ascertainment op Class.</p> <p>4. Testator devised real estate to his son, who at the time of the</p> <p>execution of the will was a widower having two grandchildren, the children of a deceased daughter. Subsequently he married; but there was no issue of the second marriage at the time of the execution of the codicil, declaring that the devise to the son should be for his sole use independent of his wife, and that in the event of his death without issue living at the time of his death the devise should go to others. The son at the time of the execution of the codicil was 52 years of age and his wife 46. Held that, in view of the presumption of the possibility of issue, it was unreasonable to suppose that testator desired to exclude issue subsequently born and living at the son’s death from taking a share to which each would be entitled, based on the ratio determined from the number of children and grandchildren.</p> <p>Wills — Estates Acquired — Vested or Contingent.</p> <p>5. Testator directed his executors to hold his real estate until a designated date, at which time they should divide the same into parts, each of which should be given to persons named. The executors were empowered to lease the real estate, collect the rents, make necessary repairs, and pay taxes. Held, that the executors merely held the possession of the real estate, and that their duties were discharged when they divided the premises as required, and prior to such division the beneficiaries took a vested estate in fee.</p> <p>Wills — Intention op Testator.</p> <p>6. The intention of testator governs in the construction of his will, and, where a testator’s design can reasonably be ascertained, it controls.</p> <p>Wills — Construction—Estates Acquired — “Use.”</p> <p>7. Testator directed his executors to hold his real estate until a designated date and then divide it into shares, and he gave a share to his son. By a codicil he declared that the devise to the son should be for Ms sole “use” independent of Ms wife, and that, on his death without issue living at the time of his death, the devise should go to others. Held, that the son acquired only a life estate; the word "use" meaning the transfer of an interest in land for life.</p> <p>Wills — Construction—Disinheriting Heir.</p> <p>8. An heir can only be disinherited by express devise, or necessary implication.</p> <p>Wills — Construction—Devisees—“Issue."</p> <p>9. Testator directed his executors to hold his real estate until a designated date and then divide it into shares, and he gave one share to his son, and provided that it was his purpose to distribute his property equally between his children and to the heirs of those of his children who were dead. By a codicil he declared that the devise to the son should be for his sole use, independent of his wife, and that on his death without issue living at his death the devise should go to persons designated. Held, that the word “issue” in the codicil included grandchildren.</p> <p>Wills — Estates Created — Vested Remainder — After-Born Children —Executory Devise.</p> <p>10. Grandchildren in being at the time of the execution of the codicil became vested as remaindermen with a fee at the death of testator, subject to the son’s life estate and to the possibility of their interest being diminished by the birth of other issue, and there was a remainder over by way of executory devise to the designated persons in case the son died without issue surviving.</p>

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Moore. This is an action by J. N. B. Gerking against W. A. Laidlaw to recover damages alleged to have been sustained by false and fraudulent representations respecting the title to real property.

From Marion: George H. Burnett, Judge. Statement by Mr. Justice McBride.

<p>Original proceeding in Supreme Court.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>This is an action by the State of Oregon, ex rel., C. A. Gray, Robert D. Inman, James Maguire, M. O. Collins and H. M. Esterly, as commissioners of the Port of Portland, a corporation, relators, and against C. F. Swigert, C. F. Adams, John Driscoll, Archie Pease, P. L. Willis, John C. Ainsworth and William D. Wheelwright, are defendants, in the nature of quo warranto commenced by an original proceeding in this court under Section 2 of Article YII of the constitution, as amended November 8, 1910 (Laws 1911, p. 7), which provides that “the Supreme Court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.” The relators were appointed by the Governor as commissioners of the Port of Portland, and they bring this action for the purpose of removing from office the defendants, who constitute the board of commissioners appointed by the legislature on February 26, 1903, or subsequent thereto to fill vacancies in the commission. The Port of Portland was first created by an act of the legislative assembly on February 18, 1891; as a municipal corporation. By section 9 of the act (Sp. Laws 1891, p. 794) the power and authority given to the corporation is vested in 15 commissioners, named therein, and their successors in office to be chosen as provided in the act. Section 12 provides that, if an appointed commissioner neglects to qualify or removes from the corporation limits, his place shall be deemed vacant, and all vacancies so occurring or occurring from death, resignation, or other cause shall be filled by the remaining members of the board. On February 18, 1899, the legislative assembly amended section 9 of the act (Laws 1899, p. 150) by appointing nine commissioners to constitute the board, their successors to be chosen as hereinbefore provided. March 1, 1901, the charter was re-enacted, and by Section 25 (Laws 1901, p. 430) seven commissioners were appointed to constitute the board to serve until their successors in office are chosen as hereinafter provided, and by Section 28 if a commissioner refuses to qualify, or removes from the corporate limits, his office shall be deemed vacant, and that all vacancies arising in the commission from any cause shall be filled by the remaining members of the commission by election, until the next session of the legislature when the vacancies so created shall be filled by election by the legislative assembly. By the act of the legislative assembly of February 26, 1903, Section 25 of the charter was again amended (Laws 1903, p. 340) appointing Swigert, Driscoll, Adams, Pease, Spencer, Willis, and Thomas as the board of commissioners, but making no change in the duration of the term of office or the manner of choosing their successors in office. At the session of 1905 Ainsworth was elected to fill the vacancy caused by the resignation or absence of Spencer. At the 1907 session Wheelwright was elected to fill the vacancy caused by the absence of Swigert from the port, and Swigert was elected to fill the vacancy caused by the resignation of Thomas. On February 23, 1911, the legislative assembly passed an. act providing for the appointment of commissioners for the government of ports having a population of more than 100,000. Laws 1911, p. 319. The first clause of section 1 of which is involved here, viz.:</p> <p>“Every municipal corporation of the class designated and known as ‘Ports’ which contains within its boundaries a population of more than 100,000, as shown by the last federal census, shall be governed by a board of seven commissioners.”</p> <p>The act provides that the commissioners shall be appointed by the Governor for a term of four years in the manner therein provided. Pursuant to the provision of the act, the Governor appointed the relators, together with S. M. Means and Joseph Goodman, as such commissioners. The two last named neglected to qualify or accept the office, and the relators bring this proceeding to establish their right and title to the offices as commissioners of the Port of Portland. Defendants demur to the complaint for the reason that it does not state facts sufficient to constitute a cause of action, relying upon the unconstitutionality of the said legislative act of 1911.</p>

<p>Waters — Diversion—Priorities—Pleadings.</p> <p>1. Where complainants sued to compel the destruction of defendants’ dam In a non-navigable stream from which complainants and defendants were taking water, so that the whole river would flow to the intake of complainants’ ditch, and defendants also claimed the right to take all the water, the pleadings could not be construed as presenting a suit to ascertain and declare the respective rights and priorities of the parties in the use of the water.</p> <p>Waters — Appropriation.</p> <p>2. Where, in a suit to restrain defendants’ use of the waters of a river, both complainants and defendants claimed by appropriation, and not as riparian proprietors, neither could deny that at the time of their alleged appropriations and at all times thereafter the waters were subject to appropriation, in the legal sense of the word, under the rule that no one can claim at the same time both as riparian owner and as appropriator.</p> <p>Judgment — Conclusiveness—Evidence,</p> <p>3. A decree in a prior suit that complainant ditch company had acquired title by prescription to the use of 1,080 inches of water in a river was Conclusive only on the parties to that suit, and was not admissible as evidence in favor of the ditch company, to establish the extent of its rights as against persons who were strangers to that proceeding.</p> <p>Waters — Deeds—Extent op Bight — New Appropriation.</p> <p>4. Where deeds executed by riparian owners conveyed land on both sides of a river, with the right to the grantee to divert such portions of the water as might be necessary for irrigating purposes along the line of a millrace, and also to propel by water power any flour or other mill which might hereafter be constructed by the grantee, his heirs or assigns, at or near the town of E., such language conveyed only a right to a partial diversion of the stream, and amounted to a license to appropriate only such water as was sufficient for the enterprise then in view, as actually applied to a useful purpose, within a reasonable time, so that additional water subsequently required, either for a new enterprise or a material enlargement of the old one, would constitute a new appropriation as against others who had appropriated water from the stream in the meantime.</p> <p>Waters — Conveyances.</p> <p>5. Where, after riparian proprietors had conveyed land to K., with the right to divert the waters of a stream for irrigation and mill privileges, K. joined with his grantors and others who were complainants’ predecessors in title in building head gates and dams and reconstructing a ditch subsequently conveyed to complainants, whereby the water was taken upon and made appurtenant, not only to their lands, but also to lands of K. on the west side of the river, which he afterwards conveyed to complainant A., with all the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, there being at that time sufficient water for users on both sides of the river, K. and his grantees were estopped by A., subsequent increase of their use to deny the validity of complainants’ appropriation.</p> <p>Waters — Appropriation—Rights of Prior Appropriator.</p> <p>6. While in the absence of statute the right of a prior appropriator of the water of a stream is paramount, such right is limited to water reasonably necessary for such useful purpose and project as may be fairly within the appropriator’s contemplation at the time of the appropriation, and which is actually applied to the purpose intended within a reasonable time, and by the exercise of reasonable diligence.</p> <p>Injunction — Parties—Proof.</p> <p>7. To authorize an injunction, the rights which it is designed to protect must be established with certainty, and to that end all persons interested in the thing concerning which the dispute has arisen should be made parties.</p>

<p>Logs and Logging — -Transfer of Timber — Estate Upon Condition.</p> <p>1. Plaintiffs transferred to defendant’s predecessor all the timber upon a ■ tract of land, by a deed which provided that the grantee should remove such timber within five years, and that the title to all timber not so removed, and remaining on said premises at the expiration of said five years shall revert to the grantors. Subsequently the time for the removal was extended for two years. Held, that the title to all the timber on the tract vested in defendant’s predecessor, but that it was an estate upon condition liable to be defeated on failure of the grantee to remove within the time specified, and that the grantors, on the expiration of the extended time, became owners ■ of the timber, including trees that were cut down and not removed from the tracts, together with those that were cut down and cut into sawlogs, and which remained upon the tract</p> <p>Logs and Logging — Conveyance of Trees.</p> <p>2. A conveyance of growing trees upon the land conveys the interest in the land of which they are a part, so that an individual conveyance of growing trees without the land does not instantaneously sever the trees from the land in contemplation of law, and transform them into personal property.</p> <p>Words and Phrases — "Timber."</p> <p>3. The term “timber” as commonly used in this- country, signifies either growing trees, or large sticks, and is not commonly applied to small pieces or rails or cordwood into which the larger pieces may be worked up.</p> <p>Injunction — Removal op Timber.</p> <p>4. Where defendants under a contract for the sale of the timber on certain tracts, to be removed before a certain date, or become the property of the grantor, proceed to remove timber from the land after that date, injunction will lie to prevent its removal, as equity will interfere to prevent a continuous trespass or repeated trespasses.</p>

<p>Nuisance — Injunction.</p> <p>The use of a building as a barn will be enjoined where it appears that it is located in a residence district, that it causes an accumulation of flies and gives forth obnoxious odors, and that sounds emanating from it disturb the sleep of the occupants of neighboring residences.</p>

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice Moore. This is an action by R. L. Wells against the Great Northern Railway Company, to recover $469.70 as the value of a trunk and its contents, lost by the derailing and burning of a baggage car alleged to have been caused by the negligence of the defendant, whose agent, it is averred, was informed of the contents of the trunk before undertaking its transportation.

<p>From Coos: James W. Hamilton, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by Herbert Lockhart, as vendee, to enforce specific performance of a contract between him and Emerson E. Ferrey, George W. Ferrey, and Hiram C. Wright, as vendors, providing for the sale to plaintiff of certain real property in Coos County. The contract was in writing, signed and sealed by both parties, the vendors being described as parties of the first part, and the vendee as party of the second part. The contract stipulates “that the first parties, for the consideration of the sum of one dollar to them paid, do hereby agree to sell and convey to the second party and for value the second party agrees to purchase from the first parties” the real property in question.</p> <p>“The purchase price which the second party hereby covenants and agrees to pay to the first parties for said real property is the sum of four thousand two hundred dollars in U. S. gold coin at Flanagan & Bennett Bank, Marshfield, Oregon. But the consideration in the deed may be any amount less than the real purchase price which the second party may request. It is understood and agreed that the first parties have only a contract of sale for said premises at this time from W. E. Baines, now deceased, who was the owner in fee of said premises at the time of his death, and the first parties have made all payments thereon, excepting one payment amounting to $535.00 payable on or before May 13, 1906; and that W. U. Douglas is now the duly appointed, qualified, and acting administrator of said estate,, it is agreed that the first parties shall without unnecessary delay make the last payment on said contract and procure a deed under the provisions of said contract, and that they will within a reasonable time thereafter deposit in said Flanagan & Bennett Bank, Marshfield, Oregon, a deed in which the wives of the married persons of the first parties shall join, conveying to the second party the hereinbefore described premises free of all incumbrances; and that there shall accompany such conveyance an abstract showing a marketable title to be in the grantors at the time such conveyance is made; and the second party agrees that upon this being done within a reasonable time from the time such deed is deposited he will pay to the Flanagan & Bennett Bank for the credit of the first parties the sum of forty-two hundred dollars. * * It is also agreed and provided that in case either party fails to comply with the provisions hereof and the terms and agreements on his or their part to be kept and performed respectively, in case any action, suit or proceeding is commenced by either party hereto to enforce the provisions hereof, then in that case the prevailing party shall be entitled to recover in addition to the judgment rendered or relief granted such sum as the court shall adjudge reasonable as attorneys’ fees in such action, suit or proceeding in addition to the costs and disbursements provided by the statute.”</p> <p>The parts omitted relate to the removal of some buildings and fencing on the property, not material to be considered here. Prior to making the contract above referred to, E. E. Ferrey executed a deed and caused the same to be placed upon record in Coos County purporting to convey to his wife, Ophelia Ferrey, all his interest in the land described. It appears from the pleadings and evidence that at the time the contract was made W. E. Baines, from whom the parties of the first part had a contract for the sale of the land, had died unmarried and intestate, leaving as his heirs at law his brothers and sisters. After the execution of the contract between the plaintiff and the defendants Ferrey, Ferrey, and Wright, the latter paid the amount remaining due on their contract to the administrator of the estate of W. E. Baines, deceased. As performance of their part of the contract with plaintiff the defendants Ferrey, Ferrey, and Wright deposited in the Flanagan & Bennett Bank on July 9, 1906, a deed to the plaintiff for the premises in question signed by Emerson E. Ferrey, Ophelia Ferrey, his wife, George W. Ferrey, Bertha A. Ferrey, his wife, and Hiram C. Wright, who appears to have been unmarried at that time, together with a deed to Ferrey, Ferrey, and Wright executed by the brothers and sisters of W. E. Baines, deceased, without their husbands and wives, also a deed from W. U. Douglas, administrator of the estate of W. E. Baines, deceased, to Ferrey, Ferrey, and Wright and an abstract of title of the property in question showing that on April 28, 1906, the title to the property was in W. E. Baines, and that the taxes for the year 1905, amounting to $30.96, had not been paid. The plaintiff objected to the tender thus made, claiming the same was not a performance by the vendors of their written agreement. The ground of his objection was that the abstract did not show a marketable title existing in the grantors at the time the offer was made, that the unpaid taxes constituted an incumbrance upon the property, and that for want of joinder of the husbands and wives of the heirs of W. E. Baines in the deed to the vendors the legal title remaining in W. E. Baines was not fully extinguished of record. The vendors stood upon this tender, declining to make any additional efforts in that direction, gave notice of rescission, and withdrew the papers from the bank. The plaintiff tendered in writing payment of the purchase price which being refused he instituted this suit to enforce specific performance. The brothers and sisters of W. E. Baines and their husbands and wives, except John La Torres, husband of Rose Baines La Torres, were made parties defendant to the suit, and joined in an answer disclaiming all right, title or interest in the land in dispute, alleging that they had conveyed the same to the defendants E. E. Ferrey, H. C. Wright, and G. W. Ferrey in pursuance of the agreement of W. E. Baines, deceased. From a decree dismissing his suit, plaintiff appeals.</p>

From Baker: William Smith, Judge. Statement by Mr. Chief Justice Eakin. Plaintiff, F. W. Gaines, brings this action to recover judgment against Byron Vandecar upon a contract made between plaintiff’s assignor, George Peebler, and various grain growers of Baker County, Oregon, of whom defendant is one.

<p>Trover and Conversion — What Constitutes.</p> <p>1. Defendant, the owner of a building, having been ordered by the municipal authorities to remove the building because it was unsafe, requested her tenants to remove their goods, and on their refusal to do so took possession of the goods and transferred them to a warehouse and delivered a duplicate of the warehouse receipt to the tenants’ attorney, requesting that it be delivered to the tenants. The duplicate receipt was not indorsed by the defendant. The receipt recited that the goods had been received from defendant “act,” followed by the tenants’ names. Held, that defendant was not liable for a conversion of the goods.</p> <p>Trover and Conversion — What Constitutes.</p> <p>2. It is not necessary to a conversion that there should be a manual taking of the thing in question.</p> <p>Trover and Conversion — What Constitutes.</p> <p>3. In order to maintain an action for conversion, there must have been, on the part of the defendant, some unlawful assumption of dominion over the personal property involved, in defiance or exclusion of the plaintiff’s rights, or else a withholding of the possession under a claim of right or title inconsistent with that of plaintiff.</p> <p>Trover and Conversion — What Constitutes.</p> <p>4. In trover it is not enough that the facts show a trespass, it not being a conversion, unless defendant’s dominion is a denial or a repudiation of the owner’s right or title.</p> <p>Trespass — Damages.</p> <p>5. In actions in the nature of trespass or case for misfeasance, plaintiff recovers only the damages suffered by the wrongful acts of defendant.</p> <p>Trover and Conversion — Damages.</p> <p>6. In trover the general rule of damages is the value of the property at the time of conversion, diminished, when the property has been returned, by the value of the property at tjhe time of return.</p> <p>Appeal and Error — Review—Record—Evidence.</p> <p>7. Where a case was tried on the issue of conversion by defendant, and the trial court did not find or assess any actual damages, and there was no evidence concerning the same before the appellate court, error could not be presumed in the failure of the court to award damages for trespass, though Section 1, L». O. L., abolishes distinctions between forms of actions.</p>

<p>From Multnomah: Calvin U. Gantenbein, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is an action by Frank L. Smith Meat Company, a corporation, against the Oregon Railroad & Navigation Company. The facts as brought out at the trial in the court below, are as follows:</p> <p>Plaintiff corporation is engaged in the butchering business in Portland, Oregon. The complaint alleges, in substance, that about March 14, 1908, plaintiff caused to be shipped to it, over defendant’s railroad, from North Powder in Eastern Oregon, 53 head of live stock, intended for slaughter at Portland; that, owing to the negligent operation of defendant’s train, the same arrived at Huron, Oregon, several hours later than it should have done; that a washout occurred at the latter point preventing the train from proceeding further; that, if the train had not been so negligently operated, it would have arrived at Huron and passed the place where the washout occurred without delay or detention on the route between North Powder and Portland; that the train and cars containing the cattle were returned by defendant to La Grande about 10 o’clock A. M. on March 15, 1908, when, without notice to or consent of plaintiff or the person in charge of the stock, they were unloaded into a yard entirely without shelter and covered with mud several inches deep, and kept there for three days without sufficient food and without any shelter or resting place; that the yard was an unfit and unsuitable place in which to keep the cattle, as defendant well knew; that defendant neglected and refused to provide any place other than the yard in which to keep them and refused to allow plaintiff or the person in charge to provide any other place for them; that because of the alleged wrongful acts of defendant the cattle became greatly reduced in weight and depreciated in market value, to plaintiff’s damage in the sum of $522.12; and the plaintiff was obliged to pay $30.20 for extra feed for the cattle.</p> <p>Defendant answered, admitting that the cattle were shipped to plaintiff on the date named, denying that plaintiff was the shipper, but alleging that the shipment received by them for plaintiff was the same shipment mentioned in the complaint. It denied all plaintiff’s allegations of negligence, and admitted that the cattle were returned to La Grande about 9 o’clock A. M. of March 15th. For a further and separate answer, defendant alleged that on March 14, 1908, a copartnership firm, doing business as Davis Bros., of which C. E. Davis was one of the members, entered into a contract in writing with defendant for the transportation of two car loads of cattle from North Powder to Portland by defendant; that the shipment of cattle, the exact number of which was unknown to defendant, was the same one mentioned in the complaint; that, in consideration of a rate of transportation granted by the defendant to the shipper, governing such shipment, the shipper and this defendant entered into a stipulation with respect to the conditions under which the shipment should be and was transported by this defendant. One provision of this contract is as follows:</p> <p>“Unless claims, for loss, damage or detention are presented within ten days from the date of the unloading of said stock at destination, and before said stock has been mingled with other stock, such claims shall be deemed to be waived, and the carriers and each thereof shall be discharged from liability. Any carrier liable on account of loss or damage to any of said stock, shall have the benefit of any insurance that may have been effected thereupon. The rules, regulations and conditions prescribed by the carriers for the transportation of live stock, as evidenced by their published tariffs, classifications and circulars in force and effect, are binding upon the shipper. The signing of this contract by the shipper or his agent shall be conclusive evidence of knowledge, assent and agreement to each and every stipulation and condition thereof by said shipper.”</p> <p>Defendant alleged that the shipment was transported by it without delay and with due care; but that on the evening of March 14th an extraordinary and furious shower arose which continued all of the next day, washing out á portion of defendant’s track near Huron; that, upon encountering the washout, it returned to La Grande with the train; that the stock were promptly unloaded into defendant’s stockyard, with the consent of the shipper’s agent; that the yard was entirely suitable for receiving and holding the stock under all conditions that could be reasonably anticipated by defendant; and that as soon as the injury to the road could be repaired defendant transported the cattle to Portland, where they were unloaded and accepted by plaintiff, without any complaint or objection, on March 19, 1908; and that no claim was made by plaintiff for damage to the stock until July 10, 1908.</p> <p>The evidence does not show any unnecessary delay by defendant in transporting the shipment, but indicates that the delay was caused solely by the unusual storm and the consequent washing out of its roadway. There is some evidence tending to show that C. E. Davis, who was in charge of the stock for plaintiff, and who accompanied the shipment, left the cars when they returned to La Grande and was away when the stock were being unloaded; that the corral was muddy and unsheltered; that some of the slats on the feed racks were broken or absent, causing waste of food; and that when he ascertained this he demanded that the stock be taken back to North Powder where they could be better cared for; but that defendant’s agent did not comply with this demand. Plaintiff received the stock in Portland and slaughtered them within a very short time, making no claim for damages until July 10, 1908. The evidence tends to show a shrinkage in the weight of the animals, amounting in all to about 5,500 pounds. The contract of shipment was signed “Davis Brothers,” by C. E. Davis, and by defendant’s agent at North Powder. C. E. Davis accompanied the shipment to Portland. At the conclusion of plaintiff’s testimony the defendant moved for a judgment of nonsuit, which was granted, and plaintiff appeals.</p>

From Washington: James A. Eakin, Judge. Statement by Mr. Justice Burnett. This is an action by J. M. Sears against Emer Murdock to recover the possession of the northwest quarter of the southwest quarter of section 33, in township 2 south, range 1 west of Willamette Meridian in Washington County, Oregon.

From Douglas: George H. Burnett, Judge. Statement by Mr. Justice Moore. This is a suit by George H. Chauncey against H. Wollenberg and others to partition land. The facts are that pursuant to an act of Congress the United States granted to Aaron Rose and to his heirs the north half of a donation land claim in Douglas County, and to his wife, Sarah Rose, and to her heirs, the south half thereof.

<p>From Multnomah: Robert G. Morrow, Judge.</p> <p>This is an action by L. M. Davis against the Journal Publishing Company to recover damages for slander. From a judgment of nonsuit, plaintiff appeals.</p>

From Clackamas: James U. Campbell, Judge. Statement by Mr. Chief Justice Eakin. This is a supplemental proceeding in a suit wherein plaintiff was divorced from defendant. The custody of the child, Vivian Ethel Gustin, was given to defendant’s stepmother, Mrs. M. (N.) L. Gustin, until the further order of the court.

From Josephine: Frank M. Calkins, Judge. Statement by Mr. Justice Moore. The defendant, Dan Hearn, was indicted for the crime of selling intoxicating liquor, committed in Josephine County, October 29, 1910, in violation of the local option law, which, it is averred, was then in force in the entire county.

<p>Criminal Law — Appeal—Dismissal.</p> <p>Section 1621, L. O. L., provides that on appeal the clerk of the court must, within five days thereafter, or such further time as the court may allow, transmit a certified copy of the notice of appeal, etc.; and Section 1623 provides that the appellate court may, upon motion and notice, dismiss the appeal on failure to make a return required by Section 1621, unless good cause is shown. Held, that where more than five days elapsed between the last extension of time for filing a transcript and appeal and its actual filing in the Supreme Court the appeal will be dismissed, and the cause remanded below, with directions to re-sentence defendant.</p>

<p>Railroads — Mechanics'’ Liens — Statutes—Repeal.</p> <p>1. Section 7429, L. O. L., providing that one who shall,' as subcontractor, materialman, or laborer, furnish to any contractor to any railroad, any fuel, ties, materials, or other article, or who shall perform any work for such contractor, shall have a lien on the property of the railroad on compliance with the provisions of the act, was intended to secure only to laborers, and others furnishing labor and supplies, means of enforcing payment out of money due the contractor, and does not replace and repeal Section 7416, L. O. L., giving to mechanics, laborers, and materialmen liens for work or materials furnished in the construction of any building or any structure.</p> <p>Railroads — Mechanic's Lien — Materials Furnished to Railroad Contractor.</p> <p>2. Section 7416, L. O. L., giving to mechanics, laborers, and material-men liens for work’ or material furnished in the construction of any building, bridge, ditch, flume, tunnel, fence, machinery, or superstructure, gives a lien on railroads in favor of one who furnishes material therefor.</p>

<p>Attorney and Client — Authority—Evidence—Admissibility.</p> <p>1. Where a defendant testified to an agreement made with an attorney of plaintiff, and the attorney in rebuttal testified that he did not represent to defendant that he had authority to make the contract on behalf of plaintiff and stated that letters written by plaintiff constituted his only instructions received, the letters, showing that he was not authorized to consummate for plaintiff the contract relied on by defendant, were admissible to disprove previous authorization by plaintiff.</p> <p>Trial — Instructions—Requested Instructions — Ignoring Issues.</p> <p>2. Where a party claimed commissions for selling merchandise for the adverse party, but the commissions were applied to an indebtedness due from a third person in reliance on an arrangement made with an attorney of the adverse party, whereby the party was to retain possession of the merchandise of the adverse party and continue to sell it, and the court charged that the party was in no event entitled to anything except the application of the profits, if any, that he made, the refusal to charge that the act of the adverse party in retaining the money paid amounted to ratification of the agreement was properly refused because it did not refer to the commissions, but to retaining the money, a part of which the adverse party was entitled to in any event.</p> <p>Trial — Instructions—Ignoring Issues.</p> <p>3. A requested instruction, which does not state all the facts bearing on the issue submitted, is properly refused.</p> <p>Trial — Instructions—Refusal to Give Instructions Covered by the Charge Given.</p> <p>4. It is not error to refuse requested instruction covered by the general charge.</p>

From Tillamook: William Galloway, Judge. Statement by Mr. Chief Justice Eakin. This is an action by H. M. Todd against the Pacific Railway & Navigation Company, to recover damages for an injury to plaintiff’s horse. At the time of the alleged injury, defendant was constructing a railroad in Tillamook County, a part of which was a trestle. Plaintiff’s horse was of the alleged value of $125.

<p>Waters — Irrigation Districts — Officers—Power of Board of Control — "Determined Bights."</p> <p>1. Sess. Laws 1909, p. 319, § 4, relating to the duties of the Board of Control, consisting of two division superintendents and the State Engineer, provides that the division superintendent shall have control over the water masters of the several districts within his division, and may make regulations for fair distribution of water in accordance with the "determined rights" as may be needed. Section 11 provides that on petition to the Board of Control by water users, requesting determination of the relative rights, the board may "make a determination" of the rights, fixing a time for the taking of testimony, etc. Section 24 provides that, after compilation of said data and the filing of the evidence, the board shall cause to be entered of record an order "determining and establishing" the several rights. Section 27 makes it the duty of the circuit court to transmit a copy of the decree to the secretary of the Board of Control. Section 38 gives to the water master authority to regulate distribution of water among various users, "where rights have been determined, in accordance with existing decrees." Held, that the references to "determined rights" were only to such as were determined pursuant to said act, and the Board of Control did not have jurisdiction to supervise the distribution of irrigation water taken from a stream before the rights and priorities of the parties had been determined under said act, and the water master was not entitled to compensation for acting in such unauthorized distribution.</p> <p>Waters — Irrigation Districts — Compensation of Officers.</p> <p>2. Where a water master performs work at the direction of the division superintendent, as provided in Sess. Laws 1909, p. 331, § 42, he is not required to attach a copy of the order of his superior officer to his bill for services, as is required when the demand is made by water users.</p> <p>Waters — Irrigation Districts — Compensation of Officers.</p> <p>3. Allegations that plaintiff wrote sundry letters and consulted with sundry water users of his district on official business connected with the office of water master, and thereby consumed one day of his time, and that his claim of $5.00 therefor was rejected by the county court, stated a cause of action.</p>

<p>From Multnomah: Earl C. Bronaugh, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>The plaintiff, Mary A. Stark, complaining of the defendants, John H. Epler and Sabrina J. Epler, who are husband and wife, alleged:</p> <p>“That on or about September 20, 1907, in the City of Portland, county of Multnomah, State of Oregon, the defendants herein and each of them wrongfully, violently, ferociously, and maliciously assaulted the plaintiff herein by striking and beating her upon the hands, arms, shoulders and body with their fists and with a hand hatchet or axe or hammer held by the defendant John H. Epler, and by pushing, throwing and crowding the plaintiff against the door casing thereby cutting, bruising and wounding the plaintiff on and about the body, shoulders, arms and side causing her body, shoulders, arms and side to be crushed, bruised, lacerated, lame and sore.”</p> <p>The complaint contains other allegations more particularly setting forth the alleged resulting injuries and special damages incurred by the plaintiff and closes with a prayer for special damages amounting to $1,000, and further damages in the sum of $10,000 for great mental and bodily pain alleged to have been suffered by the plaintiff.</p> <p>The answer consists of' denials, either positive or upon information and belief, of all the allegations of the complaint. On the trial there was a verdict and consequent judgment in favor of the plaintiff for $4,500. The defendants’ motion for a new trial having been overruled, they have appealed.</p>

<p>Evidence — Opinion Evidence — Matters of Opinion or Pacts.</p> <p>1. In an action on a fire insurance policy, testimony that the witness examined a stock of drugs and estimated Its value was not competent to establish Its value, where it did not appear that he had any special knowledge as to drugs.</p> <p>Appeal and Error — Harmless Error — Admission of Evidence.</p> <p>2. Where incompetent evidence as to the valuation of a stock of drugs before insurance was admitted, in an action on the policy, but such valuation had little bearing on the worth of the stock when destroyed, the admission was not prejudicial.</p> <p>Evidence — Opinion Evidence — Value.</p> <p>3. Persons of ordinary intelligence, who have seen the shelving, counters, showcases, etc., of a store, are competent to give an estimate of their value.</p> <p>Insurance — Value of Property Destroyed.</p> <p>4. The value of Insured goods at the time of their destruction Is the measure of indemnity for the loss, under a policy stipulating for indemnity to the extent of a fixed sum.</p> <p>Evidence — Relevancy—Value of Property.</p> <p>5. In an action on a policy of fire insurance, evidence that a safe injured by the fire cost $300 about three years before, and that a transportation charge of $100 had been paid, is properly admitted.</p> <p>Evidence — Private Writings — Letters—Correspondence.</p> <p>6. In an action on a fire policy, letters between attorneys for plaintiff and defendant, relating to the contentions of the respective parties for and against the payment of loss, are inadmissible, since the reasons set forth therein might have been orally argued by counsel, and the facts to which the letters related could have been shown by witnesses.</p> <p>Trial — Objection to Evidence — Evidence Inadmissible in Part.</p> <p>7. Where a motion to strike out went to the whole of an exhibit, consisting of two sheets of paper, one of which was admissible, the motion was properly denied.</p> <p>Insurance — Forfeitures—Liberal Construction.</p> <p>8. A clause in a policy requiring proof of loss within a certain time, to entitle the Insured to maintain an action, will he liberally construed in favor of the insured.</p> <p>Insurance — Forfeiture of Policy — Conditions Subsequent.</p> <p>9. A non-compliance with a clause of a fire policy, providing that proofs of loss should he made within 60 days, and that no action on the policy should he sustainable until full compliance with such requirements, without expressly declaring that the policy should be void for failure to submit the required proofs of loss, does not render the policy void, but requires the furnishing of proofs before instituting an action.</p> <p>Insurance — Action on Policy — Admissibility of Evidence — Proofs of Loss.</p> <p>10. When a clause of a policy which requires that proofs of loss shall he made within a certain time, without expressly declaring the policy void for failure to make proofs as required, is so construed as not to render the policy void, evidence as to proofs of loss made to the insurer’s general agent within the required time, the agent’s promise to send insured formal proof of loss, and that the agent’s failure to do so occasioned a delay in making additional proof, is admissible.</p> <p>Insurance — Issues—Matters to Be Proved.</p> <p>11. Plaintiff’s averment, in an action on a policy of insurance, of delay in offering proofs of loss, and the statement of the reason therefor, constitute matter of inducement, and are immaterial, and a denial thereof does not raise issues as to delay and the reason therefor; and hence an instruction excluding such issues is not erroneous.</p>

<p>Mandamus — Demurrer to Return — Scope op Inquiry.</p> <p>1. Wliere an alternative writ of mandamus recited that judgment in condemnation proceedings instituted by petitioner was refused, and sought to compel entry of the same, and this was not denied by the return on demurrer to the return, the court could only determine its sufficiency, and not determine what kind of judgment ought to be directed by peremptory writ.</p> <p>Mandamus — Entry of Judgment — -Belief Granted.</p> <p>2. Mandamus will lie to compel entry of final judgment when a cause is ripe for such a conclusion, but its terms will not be prescribed, the inferior court having exclusive power in the first instance to render some final judgment.</p> <p>Mandamus — Compelling Entry of Judgment — Sufficiency of Beturn.</p> <p>3. A railroad company seeking mandamus alleged that, it having instituted condemnation proceedings, a verdict was returned assessing damages for the taking of the land at a certain sum, and no judgment had been entered, and that the court, on demand, refused to enter judgment, and that petitioner desired to appeal from the judgment to be pronounced, a return that the • court was not authorized to enter the judgment asked for or any judgment of said court save and except the order which was entered (not showing what order was entered) and could not lawfully enter the judgment asked for because of the provisions of the constitution and laws of the State prohibiting said judgment becaiise the money assessed as the damages, was never paid into court as required by law, was not a sufficient return, for while it may have shown that the court could not enter the judgment asked for, it did not show a justification of the refusal as alleged in the writ, as, so far as the record disclosed, the court could enter some final judgment.</p>

<p>Fraudulent Conveyances — Transactions Between Husband and Wife — Partnership.</p> <p>While transactions between husband and wife will be more closely scruitinized than if made between others, the mere fact of such relationship will not of itself authorize the court to declare fraudulent an arrangement, whereby the wife furnished money to carry on a contracting business in which her husband had theretofore failed, and hired him by the month to assist in the business, and hence will not be liable to his creditors, unless she in fact carried on his business in her name for his benefit.</p>

From Douglas: James W. Hamilton, Judge. Statement by Mr. Chief Justice Eakin. This is an action by Emma E. Fassett against Mrs. E. E. Boswell on a promissory note for $200; the note being in the usual form.

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Bean.

<p>Insurance — Power of Soliciting Agent — Contracts—Validity.</p> <p>1. An agent of an insurance company with authority to act for it in contracting insurance, countersigning policies, and delivering them, cannot issue a policy to himself on his own property unless the company, with knowledge of the facts, ratifies his act.</p> <p>Principal and Agent — Dealing With Agents — Rights of Third Persons.</p> <p>2. One who deals with an agent assuming to act for his principal, and who knows the limitations of the agency, cannot bind the principal by any act in excess of such authority.</p> <p>Insurance — Fire Insurance — Contracts—Validity.</p> <p>3. A mortgagee knew that the mortgagor was an agent of a fire insurance company with power to act for it in contracting insurance. The mortgagor issued a policy on the property payable to the mortgagee as his interest might appear. Held, that the mortgagee was chargeable with knowledge of the want of power of the mortgagor to issue a policy on his own property, and to hold the company he must show that it approved or ratified the policy with knowledge of the facts.</p>

From Polk: William Galloway, Judge. Statement by Mr. Justice McBride. This is a suit by G. S. Reid and Linnie M. Reid against Emma L. Savage to establish a trust in favor of plaintiffs, in certain real estate in Polk County, held by defendant. In the fall of 1897, O. G. Savage and G. S. Reid, a son-in-law of Savage, became partners in the feed business in Salem, under the firm name of Savage & Reid.

<p>From Clackamas: James A. Eakin, Judge.</p> <p>This is a suit by Louise Jones against Thomas E. Jones for divorce. From a decree in favor of plaintiff, defendant appeals.</p>

<p>Carriers— Carriage of Passengers— Personal Injuries— Instructions.</p> <p>1. Where it appeared that a passenger on a car was, hy a collision, thrown against a door, the knob striking her in the back and leaving a black and blue spot the size of the palm of the hand, it was erroneous lo charge that there was no evidence of an internal injury.</p> <p>Damages — Personal Injuries — Permanency op Injury — Evidence.</p> <p>2. In an action against a carrier for personal injuries, evidence held to warrant a finding that the injuries were permanent.</p>

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Chief Justice Moore. This is a suit by S. W. Miles against V. Hemenway to determine an adverse interest in real estate.

From Umatilla: Gilbert W. Phelps, Judge. Statement by Mr. Justice McBride. This is a suit by John B. Switzler against F. E. Earnheart, to restrain defendant from interfering with plaintiff’s possession of certain lands situated upon Beavert Island in the Columbia River. The island in question is unsurveyed government land, and has been occupied for several years by different persons.

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Justice McBride. James W. Young, a resident of Weston, Umatilla County, Oregon, died on the 26th day of August, 1905, leaving real and personal property, approximately of the value of from $30,000 to $40,000.

From Marion: William Galloway, Judge. Statement by Mr. Chief Justice Eakin. This is a suit by R. T. McFeron, a minor, by his guardian ad litem, Lee McFeron, against John Doyens, Joe Schible and L. M. McFeron, to foreclose laborers’ liens on a sáwmill.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Justice McBride. This is an action by Mary A. Cook against A. A. Howard for forcible entry and detainer.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Chief Justice Eakin. This is an action by G. W. Peek against the Skelley Lumber Company, a corporation, to recover on a promissory note for the sum of $1,389.38. Defendant is a corporation organized under the laws of Oregon, doing business in Douglas County. Plaintiff had sued defendant in Douglas County and also in San Francisco, California, upon an alleged debt of about $4,000.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice Bean. This is a suit by Elmer Wallace against Mary E. McDaniel, Walter Bowman and William Bowman, involving the title to certain real property. The case originally was commenced by the defendants against plaintiff as an action for the possession of lot 11 and the west two feet of lots 12 and 13, block 15, on Williams Avenue, Portland, Oregon.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice Bean. This is an appeal from a judgment sustaining a demurrer to each cause of action in a case wherein the First National Bank of Cottage Grove is plaintiff and the Bank of Cottage Grove is defendant, and dismissing the action.

<p>From Yamhill: William: Galloway, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a suit by G. S. Wright against the City of McMinnville to enjoin the issue of municipal bonds. It is alleged in the complaint that the defendant the City of McMinnville is a municipal corporation, and the defendants Leroy Lewis and A. C. Chandler are, respectively, its mayor and recorder; that plaintiff is an inhabitant and taxpayer of the city; that the requisite number of legal voters filed with the city recorder an initiative petition for an amendment of the city charter, so as to authorize an issue of bonds, not exceeding $10,000, which sum was to be used in substituting cast-iron pipe of a given diameter for wooden water mains; that an ordinance was enacted authorizing a special election to be held March 20, 1911, to vote upon the proposed amendment; that such municipal enactment empowered the mayor and the recorder to give notice of the election, “and to do each, every and all the acts or deeds required or directed by them to be done or performed, said election to be in all respects called and conducted in accordance with the provisions of the charter of the City of McMinnville”; that section 8 of the charter requires the recorder to give 10 days’ notice of election, “posted in three public places in the city”; that notices of the election were duly issued, but only one copy was posted, and in lieu thereof the recorder caused the notice to be printed in two consecutive weekly issues of newspapers published in the city, and also printed a pamphlet which contained a copy of the proposed amendment having on the cover of the publication a statement that the election would be held March 20, 1911; that the pamphlet was mailed to each voter in the city, so far as could be ascertained, and a notice was published in the newspapers that if any elector had not received a copy of the pamphlet he could secure one by calling upon the city recorder at a designated place; that at the election held at the time appointed 148 votes were cast in favor of the proposed amendment and 116 against it; that at the preceding general election held in that city 204 more votes were polled than at such special election; that by reason of the failure to post notices in three public places the election was void and the proposed amendment inoperative; that a sale of the municipal securities has been negotiated and, unless restrained, the defendants will deliver the bonds to purchasers, thereby imposing an illegal burden upon plaintiff’s property, for the redress of which he has not a plain, speedy, or adequate remedy at law. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of suit was sustained, and plaintiff declining further to plead the suit was dismissed, and he appeals.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Burnett. This is an action by Annie P. Sullivan, administratrix of the estate of William H. Sullivan, deceased, against Robert Wakefield and William Jacobsen, partners under the firm name and style of Wakefield & Jacobsen, for injuries resulting in the death of plaintiff’s intestate.

From Multnomah: John S. Coke, Judge. Statement by Mr. Justice Burnett. This is a suit by the National Automatic Fire Alarm Company of Oregon against the City of Portland, a municipal corporation, David Campbell, and Charles A. Savarian. The facts are as follows: The plaintiff corporation is the owner and operator of an electric contrivance designed to furnish private parties with a means of giving alarms of fire as an adjunct to the general alarm system of cities.

From Multnomah: William Gatens, Judge. Statement by Mr. Justice McBride. This is an action in ejectment by the Victor Land Company, a corporation, against H. D. Winters to recover possession of lots 27 and 28 in block 4 in the town of Mansfield, Multnomah County, Oregon. The complaint is in the usual form. The answer denies plaintiff’s title and possession, and sets up title in the defendant.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Burnett. This is an action by F. W. Leadbetter against W. P. Hawley.

From Multnomah: John B. Cleland, Judge. This is an action by Finley Morrison and William J. Morrison, partners doing business under the firm name of Finley Morrison & Son, against L. S. Franck, to recover a commission alleged to be earned from a sale of real estate. From a judgment in favor of plaintiffs, defendant appeals, and this hearing is upon respondent’s motion to affirm the judgment of the lower court. Statement by Mr. Chief Justice Eakin.

From Klamath: George Noland, Judge. This is an action by H. E. Pointer against the Klamath Falls Land and Transportation Company, to recover for personal injuries. The facts brought out at the trial are set forth in the opinion. From a judgment in favor of plaintiff, the defendant appeals.

<p>From Coos: John S. Coke, Judge.</p> <p>The defendant, Frank S. Garrison, was tried and convicted of the crime of murder and from the sentence imposed he appeals.</p> <p>Submitted on briefs without argument under the proviso of Rule 16 of the Supreme Court. 50 Or. 580 (91 Pac. x).</p>

<p>Bills and Notes — Cancellation of Instruments — ’Want of Consideration.</p> <p>The seller of a restaurant and a lease of the premises was only a sub-lessee. The purchaser in consideration of a future assignment gave notes to the seller to cover the deposit the seller had been required to advance on the lease. The lease was not assigned, and the purchaser resold the restaurant. Held, that" as the lease prohibited sub-letting without the consent of the lessor, and as the seller had no assignable interest in the lease, the notes given should be canceled as without consideration, and their cancellation did not depend upon a rescission of the contract of sale or on placing defendants in statu quo as to the sale.</p>

From Linn: George H. Burnett, Judge. Statement by Mr. JUSTICE MOORE. This is an action by the State of Oregon against the Corvallis & Eastern Railroad Company, a corporation, to recover a penalty for failure to comply with an order of the Railroad Commission.

From Marion: George H. Burnett, Judge. This is an action by George H. Colgan against the Farmers’ & Mechanics’ Bank of Woodburn. Plaintiff-respondent files motion to dismiss defendant’s appeal from an order denying a new trial. Statement by Mr. Justice Moore. This is an action to recover money.

<p>Corporations — Suits by Stockholders — Condition Precedent.</p> <p>1. As a general rule a stockholder is not allowed to sue to prevent misappropriation of corporate securities without first requesting the directors, and, in case of their refusal to act, then the stockholders, to proceed against the wrongdoers in the name of the corporation, but, where a complaint in an action by a stockholder alleges that the directors, a trustee of the company, and a majority of the stockholders are conspiring to unlawfully make way with the corporate assets, it is not necessary to allege that plaintiff requested the directors to begin suit in the name of the association.</p> <p>Corporations — Suit by Stockholder — Complaint.</p> <p>2. In an action brought against a corporation and the majority of its directors to prevent a misappropriation of its securities, the complaint alleged that the directors disposed of the assets with intent to defraud plaintiffs and other stockholders. Held, that, in the absence of a demurrer or motion to make more definite and certain the complaint sufficiently alleges that plaintiffs were stockholders when the alleged wrongs were perpetrated.</p> <p>Corporations — Actions by Stockholders — Complaint.</p> <p>3. In an action against a corporation and the majority of its directors to greyenj the misappropriation of corporate assets, the complaint need not show that plaintiffs were stockholders when alleged wrongs were committed.</p> <p>Corporations — Actions by Stockholders — Pleading.</p> <p>4. In an action against a corporation and the majority of its directors hy stockholders to prevent a misappropriation of corporate assets, failure of plaintiffs to allege in their complaint that they sued on hehalf of themselves and all others similarly situated, if a defect, is waived by failure to object by demurrer or answer under Sections 68, 72, 395, Ij. O. L., and, notwithstanding the form of the complaint, the recovery under it will be for the corporation or those stockholders similarly situated, and the court may in its discretion direct such parties to be brought in or may by final decree so dispose of any proceeds of the suit as to do justice to all entitled to share in any funds that may be recovered.</p> <p>ON REHEARING.</p> <p>Pleading — Objections to Complaint — Objections at Trial.</p> <p>5. The complaint will be construed more liberally upon an objection to its sufficiency first made at trial than when a like objection is raised by demurrer.</p> <p>Corporations — Suit by Stockholders — Allegations op Complaint.</p> <p>6. The complaint in an action against a corporation and the majority of its directors to prevent the misappropriation of corporate assets alleged that defendants were directors when the alleged wrongful acts were committed, and that they "are” directors, using the present tense, and another paragraph alleged that one of them was its president until recently, and that another defendant “is now” the president, and that the wrongful acts were committed by “said officers and directors.” Held that, in absence of demurrer or motion to make more definite, the complaint sufficiently alleged that the officers and directors named were those who committed the alleged wrongful acts.</p> <p>Corporations— Suit by Stockholder— Allegations op Complaint— Sufficiency.</p> <p>7. The complaint in an action against a corporation and the majority of its directors to prevent a misappropriation of assets alleged that the defendant officers and directors had conveyed to another company certain realty at grossly inadequate prices, ranging from $10 to $100, and that such properties “are” improved and are worth not less than $3,000, but did not allege their value at the sale, or that they were then improved, or that defendants knew they were worth more than the prices received or had any fraudulent intent in making the sale. Held,, that the allegations did not state a cause of action, authorizing the admission of evidence to support them.</p> <p>Pleading — Allegations—Information and Belief.</p> <p>8. As a rule, fraud cannot be charged upon information and belief, unless the grounds upon which the belief rests or facts from which the court can infer that it is well founded, are stated.</p> <p>Corporations — Suit by Stockholders — Suit Against Third Persons —Allegations op Complaint.</p> <p>9. In an action against a corporation, the majority of its directors, and one to whom the directors are alleged to have transferred a mortgage in return for stock to prevent the misappropriation of the corporate assets, the complaint alleged that the mortgage was for $3,000, but did not state that it was actually worth anything, or that the stock exchanged for it was worth less, or that the transferee of the mortgage knew of any bad faith in the transaction. Held, that the complaint did not allege a cause of action against such transferee.</p> <p>Corporations — Suits by Stockholders — Misappropriation op Assets —Allegations of Complaint.</p> <p>10. Allegations of the complaint in a suit against a corporation and the majority of its directors to prevent the misappropriation of assets that.the officers and directors have for two years been paying dividends to certain preferred stockholders when the association was insolvent did not state a cause of action where it appeared that the association was a going concern, and it was not charged that the officers knew it to be insolvent, or that their payments were unlawful, since the dividends might have been lawfully preferred under Section 6749, L. O. L., authorizing the issue of different classes of stock, including reserve fund stock, which should not be withdrawn until all claims of other shareholders and of creditors are fully paid.</p> <p>Corporations — Suit by Stockholders — Allegations op Complaint.</p> <p>11. The complaint in an action against a corporation and the majority of its directors to prevent a misappropriation of assets alleged that the officers and directors had persuaded a large number of stockholders to accept stock in an investment company in lieu of their corporate stock, and that, when the latter was surrendered, it was re-issued in the name of defendant B. to give him a controlling interest in the corporation, which he obtained. Held, that, in the absence of a showing of fraud in inducing the stockholders to exchange their stock or in re-issuing thi stock to B., the complaint did not state a cause of action.</p> <p>Building and Loan Associations — Suits by Stockholders — Misappropriation op Assets.</p> <p>12. Sections 6748, 6749, 6750, L. O. L., requires savings and loan associations to deposit their mortgages and securities with the Secretary of State or some duly chartered trust company as a trust fund for all the stockholders, and provides that such securities may be withdrawn only for the purpose of foreclosure upon default or when they have been paid. Held, that the withdrawal by the officers and directors of such an association of its mortgages and securities from the trust deposit in order to secretly dispose of them for their own benefit constitutes a fraud upon the stockholders, entitling them to compel the delinquent officers to account for any deficit caused thereby in the trust fund.</p> <p>Building and Loan Associations — Suit by Stockholders — Conditions Precedent — Request op Trustee.</p> <p>13. If the trustee with which the securities of a savings and loan association are deposited is one of the conspirators with the corporate officers to withdraw and misappropriate the securities, the stockholders need not request the trustee to bring suit to protect the securities before suing therefor themselves.</p> <p>Building and Loan Associations — Assets—Trustee for Assets— Authority to Appoint.</p> <p>14. Title 44, chapter 3, L. O. L., “of building and loan associations,” is complete in itself, and does not authorize the winding up of the affairs of a savings and loan corporation by a trustee, and title 44, chapter 1, relates to privatq corporations in general, section 6701 of which confines the right to dissolve a corporation by the selection of a trustee to those corporations organized under the chapter. Held, that there was no authority for appointing a trustee to wind up the affairs of a building and loan association.</p>

From Linn: William Galloway, Judge. Statement by Mr. Justice Moore.

<p>Appeal and Error — Former Decision.</p> <p>1. The decision of the Supreme Court upon the same state of facts on a former appeal becomes the law of the ease.</p> <p>Depositions — Infirmity of Witnesses.</p> <p>2. Whether the infirmity of a witness when a deposition was taken continued until trial, so as to make the deposition competent, is for the sound discretion of the trial court.</p> <p>Depositions — Disqualification of Commissioner.</p> <p>3. That the commissioner before whom a deposition was taken had, at the instance of a solicitor, previously taken the affidavit of another witness filed in the case, did not disqualify the commissioner, though such solicitor was present.</p> <p>Descent and Distribution — What Law Governs.</p> <p>4. As a rule, the distribution of personalty is governed by the lex domicilii decedentis, and the descent of real property by the lex rei sitae.</p> <p>Bastards — Property—Inheritance.</p> <p>5. At common law a bastard was a child of nobody, and could not be the heir of any one, and could not have heirs, except of his own body, but the rule is changed by Section 7351, L*. O. B.</p>

<p>From Wasco: William L. Bradshaw, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a suit by the Dufur Oil Company, a corporation, against T. W. Enos, doing business as the Pacific Well Drilling Company, Levi Christman, sheriff of Wasco County, Oregon, T. B. Slusher and John Marsh, to enjoin the sale upon execution of certain personal property and to foreclose an equitable lien thereon. The complaint states in substance (1) that plaintiff is a corporation; (2) that on June 1, 1907, and continually thereafter, the defendant T. W. Enos was and is engaged in business as the Pacific Well Drilling Company ; (3) that the defendant Levi Chrisman is the sheriff of Wasco County; (4) that plaintiff is the lessee of certain real property; (5) that on June 1, 1907, plaintiff entered into a contract with Enos, as the Pacific Well Drilling Company, whereby he stipulated to drill for plaintiff on the leased premises a well of specified diameter to a depth of 2,000 feet, if practicable, at $5.00 a linear foot, on account of which plaintiff was to advance on drafts, with bills of lading for drilling machinery attached, the sum of $2,500 as a part of the purchase price of such machinery, which was to be held by plaintiff as security for the loan.</p> <p>The contract contained a clause as follows:</p> <p>“It is further understood and agreed by and between the parties hereto that the oil company shall pay and advance on the price to be paid for such drilling a sufficient amount of money to pay for the labor, fuel and necessary expenses incurred by the drilling company in boring said well, but not to exceed the sum of two and one-half ($2.50) dollars for each foot as such well may be bored and all sums advanced by the oil company to the drilling (company) on account of labor, fuel and necessary expenses and said sum of two thousand five hundred ($2,500.00) dollars, advanced on purchase price of machinery shall be deducted from any sum or sums becoming due the drilling company for boring or sinking such well, until such sums shall be fully repaid to the oil company.”</p> <p>The agreement also provided that the drilling company should buy all necessary castings and drive pipes, and the oil company, upon demand, would repay the purchase price thereof, with the additional freight charges thereon.</p> <p>The complaint further states in effect (6) that pursuant to the contract, Enos, as the Pacific Well Drilling Company, purchased and shipped to plaintiff certain personal property, particularly describing the articles thereof, whereupon plaintiff paid out as stipulated the sum of $2,500; (7) that no part thereof has been repaid, except about $300, though the time for the payment thereof has expired; (8) that all such personal property was placed on the leased premises, and was used by the Pacific Well Drilling Company in sinking the well thereon until March 17, 1908, when plaintiff, according to the contract, took possession of the machinery, and thereafter held it; (9) that by the consideration of the circuit court of Oregon for Wasco County the defendant John Marsh, as plaintiff, secured a judgment against the Oregon Drilling Company, a corporation, the Dufur Oil Company, a corporation, the plaintiff herein, and W. H. H. Dufur, as defendant, for the sum of $725, and an execution having been issued thereon was delivered to the defendant Chris-man, who “undertook” to levy the writ on the personal property described in' the complaint, and he claims to have taken actual possession thereof and threatens to sell the same, and will put his menace into execution, unless restrained; (10) that the Oregon Drilling Company had not at any time any interest in or right to such personal property, or any part thereof; (11) and that plaintiff has no plain, speedy, or adequate remedy at law.</p> <p>The prayer of the bill is (1) that the sheriff be enjoined from attempting to sell the property involved herein; (2) that plaintiff be decreed to have a lien thereon; (3) that such lien may be foreclosed and the property sold to satisfy the charges imposed thereon; (4) that, after discharging the incumbrance, any surplus remaining may be paid to the party decreed herein to be entitled thereto; and (5) for such other and further relief as may be equitable in the premises.</p> <p>Omitting the formal parts, the pleading of one of the parties, is as follows:</p> <p>“John Marsh, one of the above-named defendants, in answer to complaint of plaintiff herein, denies each and every allegation in said complaint, except paragraph 9, which is admitted.”</p> <p>The defendant T. B. Slusher intervened and filed an answer denying paragraphs 2, 5, 6, 7, 8, 9, and 11 of the complaint, and alleging, in effect, that, by consideration of the circuit court of Oregon for Multnomah County, in an action wherein he was plaintiff and T. W. Enos was defendant, he secured a judgment for $376.90 and the costs and disbursements; that an execution was issued on such judgments, and the personal property described in the complaint was seized as belonging to Enos, but such levy of the writ was subsequent to the seizure of the property by Marsh under the execution issued upon his judgment.</p> <p>No reply or interpleading was filed by either party, but prior to the trial it was substantially stipulated by the attorneys for plaintiff and for Marsh that the sum of $2,500 was advanced, as alleged on account of which loan about • $300 had been paid; that the judgment secured by Marsh was for work performed by him in drilling the well, which he sunk 187 feet; that he was informed that some of the machinery had been paid for by such advances; that plaintiff knew he was doing work under a contract with Enos, or whatever company the latter represented ; and that Marsh never rendered any services under a contract with plaintiff.</p> <p>The defendants Chrisman and Enos not having appeared or answered, the cause was tried and findings of fact were made corresponding to all the averments of the complaint, except the tenth, upon which no finding was made; that Slusher commenced an action against Enos and sued out a writ of attachment, pursuant to which the personal property involved herein was attempted to be seized as the machinery of Enos; that a judgment was rendered in that action and an execution issued thereon was directed to the sheriff, who, obeying the writ, a few days prior to the commencement of this suit, attempted to levy the same upon and to take possession of all the personal property described in the complaint; and that an execution was issued on Marsh’s judgment, and the defendant Chrisman undertook to levy the writ upon and to take possession of all such property as that of the Oregon Drilling Company.</p> <p>As conclusions of law, the court determined that plaintiff had a prior lien upon all the property described in the complaint, which lien should be foreclosed and the machinery, etc., sold to satisfy the demand; upon the payment of which, Slusher’s judgment should be liquidated and if any money then remained it should be applied upon Marsh’s judgment. A decree was rendered in accordance with such findings and Marsh alone appeals.</p>

<p>From Marion: Percy R. Kelly, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>The defendant, George Meyers, was indicted by the grand jury of Marion County for the crime of murder in the first degree. He was tried, convicted of murder in the second degree, and sentenced. Upon appeal to this court the judgment was reversed, and the case remanded for a new trial: State v. Meyers, 57 Or. 50 (110 Pac. 407). As the result of a second trial defendant was found guilty of the crime of manslaughter, and from a judgment sentencing him to the penitentiary for an indeterminate period he appeals, alleging errors, the first of which is that the court erred in permitting, over the objection of counsel for defense, the official reporter, reporting the testimony at the first trial, to read to the jury the notes of the testimony of Arthur Meyers, brother of defendant, given at the former trial.</p>

<p>From Clackamas: James U. Campbell, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>In the matter of the petition of Anna Foster for the custody of Loreta Hoag, committed to the custody of Hattie Myers. Loreta Hoag, having been abandoned by appellant, her mother, who was unable to care for her, was, upon the petition of respondent, duly adjudged by the county court of Clackamas County sitting as judge of the juvenile court, to be an abandoned child, and was committed to the custody of the respondent. Subsequently appellant, having remarried, applied to the judge of the county court to have the custody of the child given to her, which application was denied. She appealed from this order to the circuit court, where a motion was made to dismiss her appeal, for the reason that no such remedy is provided in the statute from the decision of the juvenile court. From a judgment dismissing the appeal, she again appeals.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice McBride. Petitioner, George D. Wischhusen, was a depositor in the Oregon Trust & Savings Bank. On August 21, 1907, at the suit of Louis J. Wilde, the bank was declared insolvent, and Thomas C. Devlin was appointed by the circuit court of Multnomah County as receiver of its assets and property. At this date petitioner had on deposit in the bank including interest, $3,209.59.

From Marion: George H. Burnett, Judge. Statement by Mr. Chief Justice Eakin.

From Lincoln: Lawrence T. Harris, Judge. Statement by Mr. Justice Moore. This is an action by J. K. Weatherford against Robert McKay to recover the possession of real -property, with damages for withholding the same.

From Marion: George H. Burnett, Judge. Statement by Mr. Chief Justice Eakin. This is an action by G. J, Moore against Louis Lachmund and Julius Pincus, partners doing business under the firm name and style of Louis Lachmund & Co. and Russell Catlin, to recover damages suffered by plaintiff by reason of the breach of an undertaking given on the issuance of a temporary injunction in the case of Lachmund and others against G. J. Moore, Rebecca A. Moore, and C. E. Nash.

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Bean.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Moore. This is a suit by M. P. Cannon against Alice E. Milner to rescind a contract, the execution of which is alleged to have been induced by fraud; to enjoin the prosecution of any action based on the terms of the agreement; to direct a reimbursement of the money paid on account thereof; and to recover damages.

From Multnomah: Calvin U. Gantenbein, Judge. This is a proceeding by the city of Portland to establish a street.. From a judgment of the circuit court dismissing an appeal by the Investment Company for an assessment of benefits and damages, it appeals. Respondent, city of Portland, now moves to dismiss appeal.

From Tillamook: William Galloway, Judge. Statement by Mr. Chief Justice Eakin. This is an action by E. R. Ayer against Seth F. Moon to recover money.

<p>From Washington: James U. Campbell, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is an action by Benton Bowman, trustee in bankruptcy of the bankrupt estate of W. E. Sherrill, against W. E. Sherrill and Lizzie M. Sherrill, his wife. The facts are as follows:</p> <p>In January, 1909, W. E. Sherrill was adjudged a voluntary bankrupt, and plaintiff was appointed his trustee in bankruptcy. Prior to this, on October 28, 1908, Sherrill, without consideration, conveyed to W. P. Dyke certain land described in the complaint and hereinafter called, for convenience, “a part of the Moore claim.” On the same day Dyke conveyed the land without any actual consideration to Mrs. Sherill. On the 13th of November, 1908, Sherrill traded a team of horses to one Weisenbeck for lot 6, in block 37, South Coast Addition to the city of Hillsboro, taking a deed therefor in his wife’s name. Plaintiff brings this suit to have the deed declared fraudulent as to creditors, and praying that the property be sold and the proceeds applied upon the proved debts of W. E. Sherrill. Defendants answered, denying all allegations of intent to cheat or defraud creditors, and further set up that the land situated in the Moore claim is a homestead, and therefore exempt from execution and sale.</p>