Volume 60 — Oregon Reports

From Tillamook: William Galloway, Judge. Statement by Mr. Justice Moore. This is a special proceeding by George N. Hodgdon and Marvin Hodgdon against H. F. Goodspeed, County Judge, J. C. Holden, County Clerk and L. D. Krake to review the action of an inferior tribunal.

Decided October 18, 1910. On Motion to Dismiss. [Ill Pac. 49.] From Marion: George H. Burnett, Judge. Statement by Mr. Justice King. On June 25, 1910, the parties to this proceeding entered into a stipulation whereby it was agreed that respondents should waive publication of the abstract required by rule 4 of this court, 50 Or. 571 (91 Pac. viii), and that appellant might publish such abstract with his first brief.

<p>From Clatsop: James A. Eakin, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is an action by Joseph Giaconi against the City of Astoria to recover damages for an injury to real property. The complaint alleges, in effect, that defendant is a municipal corporation, authorized to grade streets within its boundaries, and in devising plans for ■such improvement and in performing the work is required to exercise care and skill; that extending east and west along the side of a steep hill is Irving avenue, a highway of that city, which is intersected at right angles by Eighteenth street and next east thereof by Nineteenth street; that Grand avenue is next north of Irving avenue, and bounded on all sides by these highways is block No. 24, in Shively’s Astoria, 300 feet square; that immediatly north of that block, but separated therefrom by Grand avenue, is block No. 13, of the same area, the north part of which extends into the Columbia river; that plaintiff owns a lot on the south side of block 13 having two buildings thereon, and also owns another building erected on the north side of that block; that on block 24 is a ravine extending to Irving avenue, which gulch is about 50 feet below the ordinary surface of the ground, 250 feet wide at the bottom from east to west in which direction it is nearly level, but slopes abruptly to the north; that this hollow is swampy to an unknown depth, containing numerous perennial springs from which large streams of water constantly flow, and is incapable of sustaining any superadded weight, rendering any attempt to make a fill thereon dangerous, all of which facts defendant well knew; that the marshy character of the gulch, its declivity, the proximity of plaintiff’s property, and the apparent danger of a slide made it incumbent upon the city, prior to adopting any plan for improving the ravine and before the work was commenced to ascertain the depth of the swamp to solid earth, if any, and to determine whether the foundation was sufficient to sustain any imposed weight, but it neglected to make any inspection or to provide any means to prevent a displacement of earth; that the council adopted a resolution declaring an intention to improve Irving avenue from the west line of Eighteenth street easterly, directing the city surveyor to prepare plans, specifications and estimates of the improvements, the cost of which was to have been defrayed by a local assessment of all property within a specified district; that, without investigating the premises, the surveyor filed with the auditor plans and specifications which by reason of defendant’s negligence failed to provide for the flowing water, or to drain the land, or to make a safe foundation for the fill, or to construct a bulkhead; that an ordinance was passed limiting the time and prescribing the manner of doing the work, but did not provide for any plan for the embankment, the enactment demanding that the improvement should be made according to the plans of the surveyor and under the defendant’s supervision; that, pursuant to the ordinance, a contract was entered into by the city with W. A. Goodin, who, beginning to perform the work according to the plans and specifications of the surveyor and under the defendant’s direction, negligently placed on the soft earth in the gulch a small wooden flume and a thin iron pipe to carry off the water, and by heaping clay on such conduits, without preparing any foundation or retaining wall, or draining the ground, the pipe and flume settled, and with knowledge thereof defendant negligently caused to be placed on the fill large additional quantities of earth, which immediately sank, causing stones, stumps, trees, and other material to be forced down upon and over plaintiff’s property, injuring it to the extent of $2,000 for which sum judgment is demanded.</p> <p>The answer denied the material averments of' the complaint, and alleged, inter alia, that the plans and specifications were carefully and skillfully prepared by the city surveyor, filed with the auditor, and approved by the council; that the fill was made without any negligence on defendant’s part, and every precaution was taken to prevent injury, notwithstanding which a slide occurred that could not have been prevented by reasonable foresight or investigation; and that the improvement was made for the use and benefit of the public, and any injury plaintiff may have sustained was the result of an accident, and not occasioned by defendant’s fault or negligence.</p> <p>A reply put in issue the allegations of new matter in the answer, and, the cause being tried without a jury, the court made findings of fact and of law conformable to the averments of the complaint, except that the damages suffered were only $975, for which sum a judgment was rendered for plaintiff, and defendant appeals.</p>

<p>From Clackamas: James A. Eakin, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a special proceeding to review an award of arbitrators. The return to the writ shows that in Clackamas County, school district No. 48 was divided, and from a part of its territory school district No. 115 was formed. As the boards of directors of these districts could not agree upon a division of the assets and liabilities, it was concluded to settle the difficulty by arbitration; whereupon the old district selected Harry Jones and the new district chose F. S. Baker. Pursuant to the statute, the county school superintendent, T. J. Gary, by virtue of his office, became the third member of the board of arbitration. The disputed matters beiiig considered, the board determined that $761.56 was due from the old district to the new, and an award therefor was given. To review such action, these proceedings were instituted; the new district and the members of the board of arbitration being made parties defendant. The cause having been certified up to the circuit court, the award was reduced to $696.30, and, a judgment therefor having been given, the plaintiff appeals.</p>

From Douglas: James W. Hamilton, Judge. This is an action by Frank M. Beard against the Royal Neighbors of America to recover the amount due upon a beneficial certificate issued by defendant. From a judgment in favor of the defendant, plaintiff appeals.

<p>From Multnomah: Calvin U. Gantenbein, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an action by George Hutchings against the Royal Bakery & Confectionery Co., for damages for personal injuries. From an order granting plaintiff a voluntary nonsuit, defendant appeals. The defendant filed a demurrer to the complaint, and upon the same being overruled issues were joined, and the cause came on for trial before a jury. Three witnesses were sworn and testified on behalf of plaintiff. To the question as to whether or not plaintiff’s injuries were permanent, propounded to Dr. A. W. Moore, one of the witnesses, defendant’s counsel objected, for the reason that the complaint did not allege permanency of plaintiff’s injuries. Upon a ruling thereon adverse to the plaintiff, he moved the court for an order granting him a voluntary nonsuit, which was allowed, over defendant’s objection, upon the ground that the law did not authorize the same.</p>

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice McBride. This is an action by James Dowd, Executor and Kate Dowd, Executrix of the last will and testament of James Dowd, deceased, against the American Surety Company of New York. The complaint alleges: That James Barry died on September 10, 1908. That plaintiffs are his executors.

From Marion: William Galloway, Judge. This is a suit by L. Bernard against Sarah A. Hassan and William R. Allen, to foreclose a mechanic’s lien. From a decree in favor of plaintiff as prayed for in the complaint, defendants appeal.

<p>From Coos: John S. Coke, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is an action C. D. Mael against E. F. Stutsman, A. H. Stutsman and H. C. Medley to recover money. The complaint alleged that about July 2, 1909, the defendants executed to plaintiff a promissory note for $607.50, payable in 90 days, with interest after date until paid at the rate of 10 per cent per year; that the note provided that, if an action should be instituted thereon, the defendants would pay such additional sum as the court might adjudge reasonable as attorney’s fees; that no part of the note has been paid; and that $100 is a reasonable sum as attorney’s fees. The answer admitted the execution of the note, and that no part of it had been paid, but denied that any sum was due or owing thereon, or that $100 or any other sum was reasonable as attorney’s fees. For a further defense it is alleged that the note was given to evidence a part of the purchase price of certain land respecting which the plaintiff falsely represented to the defendants that he was the owner in fee and would execute a general warranty deed therefor; that his title to the premises was defective, setting forth the particulars thereof; that defendants, believing such representations to be true, and relying thereon, executed the note sued on, whereupon plaintiff delivered to them what was supposed and believed to be a deed of general warranty, but was only a conveyance which covenanted for the quiet and peaceable possession of the premises. For a second defense it is averred that by reason of the defects in the title the defendants had sustained damages in the sum of $1000. A demurrer to these allegations, of new matter having been sustained on the ground that the facts stated did not constitute a defense to the action, and the defendants declining further to plead or answer, judgment was rendered against them for the sums demanded in the complaint, and they appeal.</p> <p>Submitted on briefs without arguments under the proviso of Rule 18 of the Supreme Court, 56 Or. 622 (117 Pac. XI).</p>

<p>From Josephine: Frank M. Calkins, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a suit to have a deed of real property declared to be a mortgage, and for an accounting. The facts are that the plaintiffs C. E. Harmon, G. N. Bailey, and L. L. Jewell, and defendant J. R. Bailey, on October 1, 1907, gave to the defendant the Grants Pass Banking & Trust Company, a corporation, hereinafter called the trust company, a promissory note for $3,000, payable in a year, with interest from that date at the rate of 8 per cent per annum, stipulating to pay such additional sum as the court might adjudge reasonable as attorneys’ fees in case suit were instituted to collect the note, or any part of it. In order to secure the payment of the note, the makers thereof executed to the trust company a mortgage of four quartz mining claims in Josephine County, of which premises, subject to the paramount title of the United States, Jewell owned an undivided two-fifths, and each of the other mortgagors one-fifth. In January, 1909, no part of the note having been paid, the payee insisted upon its discharge, and threatened to foreclose the mortgage; whereupon the plaintiffs and the defendant Bailey executed to the trust company a deed of the mortgaged premises, including an appurtenant water right, a quartz mill, machinery, and tools, and received the note, secured a cancellation of the mortgage, and also obtained the surrender of an unsecured note. The consideration of the latter relinquishment was the assignment to the trust company of a claim for expenses incurred in moving machinery to the mines.</p> <p>A contract was entered into March 8, 1909, by the terms of which the trust company stipulated to sell and convey to the defendant the Holman-Foskett Mines Company, a corporation, hereinafter called the mines company, all the property described in the deed referred to, for the consideration of $10,000 of which $500 was then received, $500 to be paid April 1st of that year, $1,000 on the 1st of the succeeding July, and $1,000 a month thereafter, on account of which $7,000 has been paid when this suit was commenced. The plaintiffs asserting that the deed so executed was intended by the parties to the instrument as a mortgage to secure the sum of $3,000 and interest, demanded of the trust company an accounting for the money which it had received under the contract of sale in excess of the original debt and interest, but failing to secure any recognition of their claim this suit was instituted; J. R. Bailey being made a party defendaht, because he would not join in the prosecution.</p> <p>The complaint sets forth the facts hereinbefore detailed, and alleges that the deed was executed as further security, and pursuant to an agreement with the trust company, whereby the mortgagors were to endeavor to sell the mines, and after discharging the indebtedness referred to, the remainder of the purchase price was to have been paid to the tenants in common; that the mortgagors secured as a purchaser of the premises the mines company, with whom the contract of sale was effected with their consent, and they offered to make to it a confirmatory deed, or to execute such other evidence of title to the mines as the court might decree.</p> <p>The answer denies the material averments of the complaint, and for a further defense sets forth new matter, which is denied by the reply. Based upon the issues thus formed, the cause was tried and the suit dismissed, from which decree the plaintiffs appeal.</p>

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice McBride. The defendant, J. M. W. Hassing, was convicted of the crime of murder in the first degree, committed upon the person of Edith Hassing, his wife. The defense, so far as disclosed by the appeal, was insanity.

From Marion: William Galloway, Judge. Statement by Mr. Chief Justice Eakin. This is a suit by F. R. Du Rette against Inez B. Miller and Brandford J. J. Miller, to enjoin defendants from taking possession of, or turning stock into, a field occupied by the plaintiff under a lease. .

From Hood River: William L. Bradshaw, Judge. Statement by Mr. Justice Burnett. This is a suit by William Hull, Kate W. Hull, Elmer W. Sweany and Esther M. Sweany against F. W. Angus and J. H. Ferguson. The substance of the complaint in this suit is that, on November 21, 1907, the defendant Angus conveyed certain real property to the plaintiffs for the purchase price of $16,300.

<p>From Marion: William Galloway, Judge.</p> <p>This is a suit by John Bayne against L. F. Brown to quiet the title to a part of Lot 7, Block 16, of the city of Salem. There was a decree in favor of defendant, and plaintiff appeals.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBride. This is an action by C. Aerne, Jr., against A. E. Gostlow and the Union Guarantee Association, a corporation. The.case was tried without a jury and from a judgment in favor of plaintiff, the Union Guarantee Association appeals. The facts are as follows: In March 1909, plaintiff let a contract to defendant Gostlow for the erection of a dwelling house in Portland.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Moore. This is an action by Ada E. Blue against the Portland Railway, Light & Power Company, to recover damages for a personal injury.

<p>Appeal and Error—Nature op Remedy—Right to Remedy.</p> <p>1. An appeal is a privilege which must be conferred by authority upon the person who would enjoy it.</p> <p>Appeal and Error—Decisions Reviewaele—New Trial—"Judgment."</p> <p>2. Under Section 549, L. O. L., providing that any party to a judgment or decree may appeal therefrom, and Section 548, defining a “judgment” as an order affecting a substantial right and determining the action or suit, or an order setting aside a judgment and granting a new trial, an order denying a motion for new trial is not appealable.</p> <p>Appeal and Error—Time op Taking Proceedings—Effect op Motion por New Trial.</p> <p>3. As a losing party is entitled, under the statute giving him six months in which to appeal, to give oral notice of appeal at the time of the rendition of the judgment, the time in which an appeal may be filed is not extended by the pendency of a motion for new trial.</p> <p>Constitutional Law—Vested Rights—Appeals.</p> <p>4. As the laws relating to the enforcement of contracts are to be deemed part of the agreement, so that, when a judgment is rendered, the rights of the parties after the time for appeal has elapsed are fixed and vested, Act Feb. 21, 1911 (Laws 1911, p. 195), which attempted Lo validate appeals filed after the time for filing had elapsed, is invalid, as interfering with vested rights under a contract.</p> <p>Constitutional Law — Distribution op Governmental Powers — Legislative Powers—Encroachment on Judiciary—Construction op Statutes.</p> <p>5. Under Section 1, Article III, of the Constitution of Oregon, providing for the distribution of governmental powers and prohibiting one branch from exercising the functions of the other, Act Feb. 21, 1911 (Laws 1911, p. 195), which, after reciting that certain sections of the code had created doubts as to whether the time to take an appeal ran from the date of the entry of the judgment or from the entry of the order granting or denying a new trial, provided that appeals filed within six months after the denial of a motion for new trial should be validated, is unconstitutional, as an encroachment on judicial powers, in that it grants no new right of appeal, but construes former enactments.</p>

<p>Judicial Notice op Precinct Boundaries.</p> <p>A precinct being only a subdivision of a county established by the county court, and subject to change biennially, courts will not take judicial notice of its location or boundaries, either under Section 720, subd. 8, B. & C. Comp., or under the general rules of law.</p>

<p>Pleading—Sufficiency.</p> <p>1. A plea of tender in an action on a promissory note, of the full amount due on the note, is insufficient, as a conclusion of law, for not alleging the amount tendered.</p> <p>Tender—Sufficiency—Ability to Pay.</p> <p>2. In order to make a tender of payment by the maker of a note sufficient without actual production and offer of the cash, he must have been actually able and willing to pay at the time.</p> <p>Equity—Maxims.</p> <p>3. The maxim that equity regards the substance rather than the form gives effect to the intention of the parties either to aid an act abortive at law, because formally defective, or to impose a liability sought to be evaded by concealment of the true character of the transaction.</p> <p>Bills and Notes—Payment in Equity—Surrender of Note.</p> <p>4. A note for $1,000 was assigned to D., together with corporate stock pledged as collateral therefor, and, after maturity of the note, D. delivered it and the stock to the maker, who was secretary of the corporation, but without any intention of extinguishing it, and demanded that the stock be transferred to D., according to the contract of pledge; and the maker took the note, stating that he would attend to it soon, but, instead of transferring the stock, offered to pay D. $1,063 without stating to-what debt it should be applied, and without being financially able to make the payment, had it been accepted. Held, that the debt represented by the note was not extinguished in equity, which regards the substance, and not the form.</p> <p>Pledges—Rights of Pledgees After Default.</p> <p>5_ A pledgee in possession of the pledged property had a qualified property therein after default, so as to be authorized to sell the property as his own, or have another dispose of it for his benefit.</p>

<p>From Multnomah: William N. Gatens, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an action by C. F. Adams and A. C. Mills against F. W. Carey, doing business under the firm name and style of F. W. Carey & Company, to recover $4,500, balance due for services of the tug Sampson. Upon the trial there was a verdict and judgment of $8,868.45 for plaintiffs, and defendant appeals.</p> <p>The agreement under which the tug Sampson performed towing for defendant is set forth in the complaint as follows:</p> <p>“This charter party, made and concluded upon in Portland, Oregon, this 29th day of September, 1906, by and between C. F. Adams and A. L. Mills, parties of the first part, owners of the tug Sampson, of Portland, Oregon, now lying in the harbor of Portland, and F. W. Carey & Company, of San Francisco, California, parties of the second part, witnesseth:</p> <p>“1. The said vessel is chartered and let by said parties of the first part to said parties of the second part for a period of two weeks beginning at twelve-thirty o’clock A. M. on the morning of the 2d day of October, 1906, for use in towing to and from the Columbia River, Coos Bay and San Francisco, and is to proceed at once to Knappton, Washington, to be ready there to tow a vessel to San Francisco, California, and thereafter is to perform such duties in accordance with the terms of this agreement as may be required of her by the said charterers.</p> <p>“2. The parties of the second part agree to pay and the parties of the first part agree to receive for the use of said vessel the sum of two hundred dollars ($200.00) per day during said period; provided, however, that if during said period said parties of the second part have no active use for said vessel and do not make use of her, a rebate of fifty dollars ($50.00) per day shall be allowed upon said price during the time when she lies idle, no such rebate being allowed, however, for less than a full day, the idle time to be determined by the log of the tug; one thousand dollars ($1,000.00) on this charter party to be paid on signing this agreement and the balance on the expiration of the time.</p> <p>“3. That said vessel be tight, staunch, strong, and in every way fitted and provided for use as a vessel engaged in the business of towing lumber and other ships from and to ports on the Pacific Coast before mentioned.</p> <p>“4. It is agreed that said vessel shall at all times during the period of this charter be subject to the directions of the parties of the second part, and shall go and come between the ports and places before mentioned and shall tow such vessels as shall be indicated by said second party.</p> <p>“5. At the end and within said period of this charter, the said vessel shall be returned to Portland, Oregon.</p> <p>“6. All expenses of fuel, supplies, wages of the crew, and other expenses shall be borne by the parties of the first part and the said parties of the first part shall keep said vessel at all times fully furnished and in good condition to perform the duties as aforesaid.</p> <p>“7. All risks or damages to tows, cargo or docks, marine or otherwise, not arising'through the negligence of the owners or not covered by insurance on the tug chartered and for which said first parties of said tug would be liable are hereby expressly assumed that (by) the second parties, and the first parties and the said tug are hereby released and discharged from any and all claims for liability arising or to arise on account thereof, and the second parties agree to hold the said first parties and the said tug harmless therefrom; provided that for any accident to the tug the second parties shall not be liable.”</p> <p>The agreement was signed and sealed on the 29th day of September, 1906.</p> <p>Plaintiffs allege that pursuant thereto, on the 2d day of October, 1906, plaintiffs delivered to defendant the tug Sampson in the required condition, and in all things performed such agreement on their part. Defendant returned the tug December 11, 1906.</p> <p>The defendant admits the making of the agreement, and by way of counterclaim pleads:</p> <p>1. That he lost the use of the vessel for 25 days owing to improper management and the poor condition of the tug.</p> <p>2. That he advanced, for the payment of expenses and wages, the amount of $481.55.</p> <p>3. That, for the period of 11 days, he had no use for the tug, and, as provided by the agreement, was entitled to a rebate of $550.</p> <p>4. That on October 2d the tug did not proceed to Knappton, Washington, where it was agreed she should go, and that he was damaged to the extent of $300, demurrage on the tow Barkentine Northwest, then at Knappton.</p> <p>5. That by the carelessness and negligence of the plaintiffs the tug was made to collide with the schooner Louis at Knappton, Washington, on November 14, and again on November 22, 1906, in the harbor of San Francisco, while the tug Sampson was towing the schooner Louis; that the said tug was, by the negligence of the plaintiffs, so carelessly operated that it again fouled and collided with the Louis, and swung said tow against the Clan Galbraith, an English vessel then lying at anchor in the harbor; that the Louis at that time was, and now is] owned and operated by the Simpson Lumber Company, a corporation, but was under his care and charge, and he was responsible for her safe towage and delivery at her destination. Both the schooner Louis and the Clan Galbraith were damaged, and the Simpson Lumber Company was compelled to and did pay out on account thereof for repairs to the said vessels, $6,769.79, and threatened to and would have libeled the tug Sampson for that amount and caused her arrest and sale, thereby depriving defendant of the use of said vessel for a long time to his great damage. In order to prevent the same and protect himself on his liability to the Simpson Lumber Company, he was compelled to and did effect a compromise and settlement with the aforesaid company, in behalf of the tug Sampson and its owners, and to protect the tug and the defendant’s charter and to pay for such damages of said schooner, upon such settlement, paid to said Simpson Lumber Company the sum of $2,100.</p> <p>Plaintiffs by their reply admit that defendant did not have the use of the tug for seven days, while it was undergoing repair, and that the log of the tug Sampson showed that defendant failed to use said tug for six days, entitling him to a rebate of $50 per day. They admit the $481.55 advanced for supplies and paid to the crew, but deny the alleged damages, and deny liability for the damages.</p>

<p>Decided November 1, 1910.</p> <p>On Motion to Dismiss.</p> <p>[Ill Pac. 385.]</p> <p>From Multnomah: Calvin U. Gantenbein, Judge.</p> <p>This is a suit by E. D. Kingsley against H. J. Kressly and Thos. L. Greenough. From a decree in favor of plaintiff, defendants appeal. Respondent files motion to dismiss appeal. Motion Denied.</p> <p>Messrs. Wilbur & Spencer for the motion..</p> <p>Mr. Arthur C. Emmons and Mr. A. King Wilson, contra.</p> <p>Mr. Justice Eakin delivered the opinion of the court.</p> <p>The undertaking on appeal was filed on July 25, 1910, and the time for excepting to the sufficiency of the sureties expired July 30, 1910, and the transcript was filed August 30, 1910, which is within the time allowed by law, as held in Booth v. Scriber, 48 Or. 561 (87 Pac. 887: 90 Pac. 1002); McCabe-Duprey Tanning Co. v. Eubanks, 57 Or. 44 (102 Pac. 795.) The motion to dismiss is denied.</p> <p>Denied.</p> <p>Argued October 18, decided November 7, 1911.</p> <p>On the Merits.</p> <p>[118 Pac. 678.]</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>This is a suit by E. D. Kingsley against H. J. Kressly and Thos J. Greenough, to remove a cloud from the title to real estate arising by reason of a written option to purchase real estate given by plaintiff to defendant Kressly. The material parts of the writing are as follows:</p> <p>“Witnesseth, that the party of the first part, for and in consideration of the sum of two thousand dollars ($2,000.00), the receipt of which is hereby acknowledged, does give and grant to the party of the second part, until April 15, 1909, the sole, exclusive and irrevocable right and privilege of purchasing that certain tract or parcel of land situate, lying and being in the County of Multnomah, State of Oregon, and more particularly bounded and described in that certain deed from Rosanna Richards et al, to A. L. Mills, recorded in the Records of Deeds of Multnomah County, State of Oregon, in Book 336, at page 463, at and for the agreed price of one hundred and thirty-five thousand dollars ($135,000.00) to be paid, if the said party of the second part shall elect to purchase hereunder, in the manner and form as follows, to-wit: Two thousand dollars ($2,000.00) on the execution of this instrument, the receipt of which is hereby acknowledged; eighteen thousand dollars ($18,000.00) on or before April 15, 1909; the further sum of ten thousand dollars ($10,000.00) payable on or before July 15, 1909; the further sum of ten thousand dollars ($10,000.00) payable on or before October 15, 1909; the further sum of ten thousand dollars ($10,000.00) on or before January 15, 1910; the further sum of twenty thousand dollars ($20,000.00) on or before January 15, 1911; the further sum of sixty-five thousand dollars ($65,-000.00) on or before April 15, 1914. All payments made after April 15, 1909, shall bear six (6) per cent, interest payable semi-annually, dated from April 15, 1909, and all payments of principal and interest shall be made at the First National Bank of Portland, Oregon.</p> <p>“Upon the payment of fifty thousand dollars ($50,000.00) on account of principal, together with the interest thereon, then due, the party of the first part shall execute, together with his wife, to the party of the second part a deed of warranty against the acts of said grantors of the premises above described, and the party of the second part shall execute to the party of the first part a first mortgage on that portion of the premises lying between the County Road and Willamette River, securing the payment of two promissory notes, one of which shall be for twenty thousand dollars ($20,000.00), due on or before January 15, 1911; and the other for sixty-five thousand dollars ($65,000.00), due on or before April 15, 1914, both payable at the First National Bank of Portland, Oregon, and bearing six (6) per cent interest, payable semi-annually, which notes and mortgages shall constitute the last two payments under the contract above mentioned.</p> <p>“In case the said party of the second part shall not, on. or before April 15,1909, pay the sum of eighteen thousand dollars ($18,000.00) as above specified, then this agreement shall thereupon become at once null and void, and the party of the first part may and shall retain to his own use and benefit the said sum of two thousand dollars ($2,000.00) and until the payment of said sum of eighteen thousand dollars ($18,000.00) this contract shall constitute an option, only, to purchase on the part of the party of the second part. And after the said sum of eighteen thousand dollars ($18,000.00) has been paid, the party of the second part hereby covenants and agrees to purchase said real property upon the terms and conditions above mentioned.</p> <p>“It is further mutually understood and agreed by and between the parties hereto that the party of the first part shall furnish an abstract of title showing he has a fee simple title, free from all encumbrances, except the right of way of the Northern Pacific Railroad Company, and the County Road, in and to the above-described premises, at the date of the execution of the deed above mentioned, to the party of the sécond part. And if said abstract of title shall fail to show such fee simple title in the party of the first part on the date above mentioned, and if said party of the first part shall not within a reasonable time thereafter obtain such fee simple title in himself, he shall return to the party of the second part, the sum of two thousand dollars ($2,000.00) deposited as aforesaid, and this agreement shall thereupon become at once null and void.</p> <p>“It is further mutually understood and agreed by and between the parties hereto that the party of the second part may enter into and have possession of the above described premises upon the execution of this agreement and retain possession thereof so long as he complies with the conditions above mentioned.”</p> <p>Plaintiff alleges that defendant Kressly failed and neglected to make the payment of $18,000 on April 15, 1909, and on that day notified him that he was unable to do so, and abandoned the option. Defendants for answer, besides certain denials, allege that plaintiff failed to furnish an abstract showing that he had a fee simple title to the land; and, as a second defense, that prior to April 15, 1909, the time of payment was, by mutual consent, so modified and changed as not to require the payment of the $18,000 on the 15th of April; and that the defendants, within the time agreed tendered to plaintiff all payments which were to be made under the modified contract. Defendants, on May 28, 1909, had the option recorded, and thereafter have been claiming some interest in the premises thereunder.</p> <p>Upon the trial findings were made and a decree rendered in favor of plaintiff for the relief asked. Defendants appeal.</p>

<p>From Wasco: William L. Bradshaw, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is an action by I. H. Taffe against the Oregon Railroad & Navigation Company, to recover damages on account of the alleged destruction of plaintiff’s cannery and cold storage warehouse by fire, occasioned by sparks emitted from defendant’s locomotive. At the close of plaintiff’s testimony, defendant moved for a nonsuit on the ground that no evidence had been' submitted sufficient to justify a verdict for plaintiff, which motion .was overruled. After the conclusion of the testimony, defendant moved for a directed verdict, which motion was also denied. Plaintiff had a verdict for $20,000, and defendant appeals. Other facts appear in the opinion.</p>

From Lane: William Galloway, Judge. Statement by Mr. Justice Burnett. In this suit the plaintiffs, A. W. Kime, B. K. Lawson, J. H. Bartels, C. W. Wallace, John F. Spray, and O. M. Kern, are described as citizens, residents, and taxpayers within the corporate limits of the city of Cottage Grove, Lane County, State of Oregon.

<p>From Gilliam: David R. Parker, Judge.</p> <p>This is an action by the Condon National Bank against E. C. Rogers and K. S. Rogers, his wife. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>From Gilliam: David R. Parker, Judge.</p> <p>This is an action by the Condon National Bank, against E. C. Rogers. From a judgment in favor of plaintiff, defendant appeals.</p>

From Clackamas: JAMES U. CAMPBELL, Judge. This is a suit by Charles Evans against Angeline Evans for the dissolution of their marriage contract, in which case the defendant moved to set aside a decree for plaintiff. From an order of the circuit court denying the motion, defendant appeals. Reversed, decree set aside, and cause remanded for further proceedings.

<p>Specific Performance—Contracts for Sale of Real Estate—Abatement of Value of Inchoate Dower.</p> <p>1. Where the purchaser knows the vendor has a wife, who does not join in the contract,“equitywill not enforce the contract by ascertaining the present value of the inchoate dower of the wife, and abate the price.</p> <p>Appeal and Error—Review—Change of Issues.</p> <p>2. Where, in a suit for specific performance, defendant was brought into court on the theory that he was required to accept a reduced price because he could not give a clear title, and contested that claim, plaintiff could not have the decree modified on appeal, so as to give specific performance on payment of the contract price, if plaintiff elected to accept conveyance, since such election should have been made before decree, and the issues could not be changed in the Supreme Court.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Moore. This is a suit by A. H. Sarchet, Linneville & Meyers, The Ross Company and Mason, Percy & Strickler against Hattie E. Legg, to foreclose alleged mechanics’ liens. The defendant, Hattie E. Legg, entered into a contract with W. A. Ridgen, whereby he stipulated to furnish the material and to construct for her a building on her lot in Pleasant View addition to Portland.

From Union: John W. Knowles, Judge. The defendant, Jesse Parker, was convicted of the crime of manslaughter, and from the judgment and sentence which followed he appeals.

From Union: John W. Knowles, Judge. The defendant, Victor Townsend, was tried and convicted of violating the local option law, and from the. judgment and sentence following, he appeals.

<p>Intoxicating Liquors — Indictment — Adoption and Violation of Local Option Law—Requisites.</p> <p>An indictment charging a violation of the local option law, which does not allege that an election has been held in the county to determine whether sales of liquor should be prohibited therein, is fatally defective.</p>

From Union: John W. Knowles, Judge. This is a suit by J. E. Carroll against J. R. McLaren to quiet title to certain lots in the town of North Powder. From a decree in favor of defendant, plaintiff appeals.

From Baker: William Smith, Judge.- Statement by Mr. Justice Moore. This is- a proceeding to remove an executor. Andrew A. Manser duly made a last will and testament, wherein he appointed William Baker executor, and authorized him to discharge the trust without the necessity of giving bonds.

<p>Limitation of Actions—Computation of Period—Accrual of Cause, of Action.</p> <p>1. The statute of limitations does not commence to run until a cause-of action accrues.</p> <p>Adverse Possession—Hostile Character—Recognition of Better Title.</p> <p>2. Plaintiff in a suit to quiet title had entered into possession of State land in 1882 under an executory contract of purchase and thereafter in no way notified the State that he claimed the land in hostility to its title, and held the land under the contract and a certificate of sale until 1898, doing no overt act which would give constructive notice of a hostile possession. In 1898 he abandoned his right to purchase and. allowed the cancellation of his certificate, and made no claim of ownership except in subordination to the title of the State. Held, that his, possession was not hostile, nor under claim of ownership, and hence was not adverse possession.</p> <p>Deeds—Presumption—Delivery.</p> <p>3. The presumption of the delivery of a deed to the State arising from the record of the deed is not overcome by the fact that the clerk of the State Land Board did not at one time have such land listed, and did not know that it had been deeded to the State and duly recorded, in the absence of any testimony that the officers of the State did not have full cognizance of the deed at the time of its execution and thereafter, and in the absence of proof tending to show that there had -been no delivery of the deed.</p> <p>Evidence—Frauds, Statute of—Admissions by Grantor Against Interest.</p> <p>4. Parol declaration of the clerk of a State Land Board that the State had no right to convey certain land is a declaration against the interest of the State as the owner of the record title, and under che statute of frauds is inadmissible to defeat such title.</p> <p>Evidence—Presumptions—Official Proceedings.</p> <p>5. Under Section 799, subd. 15, L. O. L., creating the presumption that official duty has been regularly performed, it will be assumed that a deed to the State, duly recorded, was regularly accepted pursuant to law by proper authorities of the State.</p> <p>Adverse Possession—Prescription.</p> <p>6. Adverse possession of land by the State for the statutory period will give it title by prescription.</p> <p>Adverse Possession—Pleading—Issues and Proof.</p> <p>7. Where the general statute of limitations is relied upon as a defense for the purpose of showing title, and the defendant alleges ownership and right of possession, it is not necessary to specially allege adverse possession for the statutory period, as the fact of ownership is sufficiently certain, under Section 328, L. O. L., requiring defendant’s estate to be pleaded, to admit evidence of adverse possession.</p> <p>Adverse Possession—Continuity—Agreement to Surrender.</p> <p>8. An agreement to surrender before the expiration of the statutory period, based upon a valuable consideration, stops the running of the statute, and continued possession will not be considered as adverse.</p> <p>Adverse Possession—Hostile Claims—Vendor and Purchaser.</p> <p>9. As between a party entering upon State lands under an executory contract of purchase and the State, the occupancy of such party under his contract for the purchase of land was that of a tenant, and did not inure to his benefit, but to the benefit of the State for the purpose of perfecting title by adverse possession.</p>

<p>Waters—Riparian Ownership.</p> <p>1. Where defendants had made no appropriation of the water in controversy, and all the parties based their rights thereto as riparian owners, the decree will be predicated upon that ground, since Section 6595, L. O. L., recognizes the doctrine of riparian ownership.</p> <p>Limitation of Actions—Permanent Stream.</p> <p>2. Where through a natural obstruction part of the water of a stream was diverted and flowed in a given manner for a time longer than that fixed by the statute of limitations, the water diverted was a permanent stream.</p>

From Grant: George E. Davis, Judge. Statement by Mr. Justice McBride. This is an action by Jesse T. Purdy against Judson H. Van Keuren to recover for labor and services.

From Malheur: Dalton Biggs, Judge. Statement by Mb. Justice Bean. This is an appeal by defendant from a judgment upon the verdict of a jury for $280.47, in the case of United States National Bank of Vale, Oregon, against the First Trust & Savings Bank of Brogan, Oregon.

From Malheur: Dalton Biggs, Judge. This is a proceeding by writ of review to review a judgment of the City Recorder’s Court of Vale, Oregon, in which plaintiff, T. A. Barton, was found guilty of selling intoxicating liquors without first having obtained a license so to do. From a judgment of the circuit court denying the relief prayed for in his application for review, plaintiff appeals.

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Justice Bean.This is a suit in equity by Frank Ford against the Oregon Electric Railway Company, a corporation. The defendant, an electric railway corporation, appeals from a decree requiring it to stop its local trains for the accommodation of passengers at a road crossing near the house on the land of plaintiff, in performance of a contract executed August 25, 1906, by Tilmon Ford, accepted by defendant, and duly recorded, the material parts of which, omitting description of the land, is as follows:</p> <p>“Know all men by these presents, that Tilmon Ford, unmarried, of the County of Marion in the State of Oregon, in consideration of the sum of six hundred dollars and other good and valuable considerations hereinafter expressed, to him paid by the Oregon Electric Railway Company, * * the receipt whereof is hereby acknowledged as to said money, and the other consideration hereinafter expressed, has granted, bargained, sold, and conveyed, * * a right of way for its railroad. * *”</p> <p>Several covenants are then inserted in said deed as to fencing the right of way and building cattle guards and crossings, as to said grantee, its successors, and assigns, and then the following:</p> <p>“Said grantee, its successors and assigns, in operating said railway shall stop its local trains for the purpose of taking on or putting off passengers at the road crossing easterly from where the house now stands on said premises, together with all and singular the tenements, hereditaments, or appurtenances thereunto belonging or in any wise appertaining, subject to the terms and conditions of said conveyance.”</p> <p>It appears that after the execution of the right of way deed, the defendant, the Oregon Electric Railway Company, constructed its railroad from Portland to Salem, over which it has been operating its trains since January 1, 1908. The farm of plaintiff, Frank Ford, contains 220 acres, upon which there is situated the farmhouse mentioned and other buildings, eight-tenths of a mile from Chemawa station on the south, and one and four-tenths miles from Quinaby station on the north. The crossing in question is situated near the center of the 220-acre tract and it is asserted by plaintiff that about 40 or 50 people would be better accommodated with a station at that location. It appears that the wagon road crossed by defendant’s electric line is a private roadway; that the plaintiff desires to cut up and sell his land in 5-acre tracts, concerning which facts, in answer to the question, “In order to allow the public tó use your crossing, you- would have to give your permission to go across your land and lay out a road. If the train would stop, you would either have to let the people come across your place, or lay out a road?” the plaintiff replied, “Yes, sir.” Plaintiff demanded of defendant that its trains be stopped according to its contract, and contends that he is entitled to have the contract specifically enforced as his only adequate remedy.</p> <p>On behalf of defendant, it is asserted that there are about 25 people residing within one-half mile -of the proposed station; that from 4 to 6 local trains stop at all of the stations on the road, making 80 stops; the schedule time for the run between Portland and Salem being two hours. Two other through or special trains make the run in an hour and 40 minutes, covering the distance between Chemawa and Quinaby stations in 4 minutes; that the passenger business handled in and out of Chemawa and Quinaby between June 8 and November 30, 1908, was for the former station, 1,912, an average of about 70 passengers per day, and for the latter 689, a daily average of 4 passengers. The total number of passengers for this period passing Chemawa and Quinaby both north and south, exclusive of those moving in and out of such stations, was 66,800, making the daily average of passengers passing these stations about 380; that the establishment and maintenance of another station in this vicinity would consume additional time, and delay the freight and passenger traffic on the line; that the income to be derived from such station would not equal the actual expense of stopping and starting the trains; and that such a requirement would work a hardship and injustice to defendant; that the consideration of $600 paid for the land for the right of way was the full value thereof. It is further contended on the part of defendant that the “necessities and convenience” of plaintiff, and all the inhabitants in the vicinity of his land, have since the operation of the railroad adequately been served by the stations of Chemawa and Quinaby; that at no time has there been enough passenger or freight business to wárrant the establishment of any more stations on this part of the line. It appears that Tilmon Ford was for many years and up to the time of his death the owner in fee of the lands described in the deed, through which the right of way extends. He died March 1, 1908, and since his death by his devise the plaintiff, Frank Ford, has been the owner and in possession of the lands; that such lands are in a sparsely settled community; that the private roadway on the premises leads to a county road, which, in turn, leads to Chemawa and Quinaby stations; and that except by this private road the crossing referred to is inaccessible.</p>

<p>Appeal and Error—Verdict—Conclusiveness.</p> <p>1. Where the evidence is conflicting, the Supreme Court is bound by the verdict, so far as it is supported by any testimony.</p> <p>Contracts—Actions—Sufficiency op Evidence.</p> <p>2. In an action for compensation under a contract to do certain surveying for defendant, evidence held to show that plaintiff remained on the ground after the survey was made pursuant to the original contract.</p> <p>Estoppel—Testimony as Witness.</p> <p>3. One who contracted with an agent personally to assist him in doing the work the agent was employed to do, and did not look to the principal for his pay, and so testified in the agent’s action against the principal for compensation, was estopped to afterwards claim compensation from the principal for his services.</p> <p>Principal and Agent—Agent’s Authority.</p> <p>4. An agent, employed to make surveys, with authority to incur necessary expenses therein, could contract in his own name for hiring a boat in making them, and recover the amount paid therefor from the principal.</p> <p>Contracts—Actions—Allegations—Terms of Contract.</p> <p>5. The complaint alleged that defendant employed plaintiff to run a survey on a certain creek, the work to be completed by October 1, 1908, and to make a report, and that plaintiff was to receive a certain sum per day until the work was completed and the report tendered, and that he finished the work on September 25, 1908, on which day he was directed by defendant to remain on the ground for further instructions, and remained there until January 4, 1910, when he returned and tendered a report. Held, that the complaint did not allege that, by the original contract, plaintiff was to receive compensation at the contract price for the days he was delayed at the place of work after actually completing the survey.</p> <p>Contracts—Actions—Sufficiency of Evidence.</p> <p>6. In an action for services in making a survey pursuant to contract, evidence held to show that plaintiff was to receive reasonable compensation, if any, for the time he delayed returning, at defendant’s request, after completing the work, and not according to the contract price.</p> <p>Appeal and Error—Disposition—Affirmance in Part—Remission.</p> <p>7. Where the amount erroneously allowed in a contract action is certain, the Supreme Court may cause it to be remitted by plaintiff, and affirm the judgment for him as to the balance of the' claim.</p> <p>Costs—On Appeal.</p> <p>8. Defendant will be allowed costs on appeal upon affirming a judgment for plaintiff, after requiring him to remit an item erroneously allowed.</p>

From Marion: WILLIAM GALLOWAY, Judge. Statement by Mr. Justice Bean. This is a suit by Charles F. Elgin against S. H. Snyder and Laura Snyder, his wife, to rescind a contract, whereby plaintiff conveyed to defendant S. H. Snyder 46 acres of -land, valued at $2,000, in consideration of 35 shares' of stock in the Salem Box & Lumber Company, a corporation, of the par value of $100 per share, on the ground of fraud. From a decree in favor of defendants, plaintiff appeals.

<p>From Baker: William Smith, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>In this suit the substance of the complaint is that E. W. Borman is the owner of certain placer mining claims in the Virtue mining district in Baker County, Oregon, subject only to the paramount title of the United States. The predecessors in interest of the plaintiffs, about the year 1884, appropriated the water of a running stream, known as Quartz gulch, by damming the stream on the land now claimed by the defendant Gertrude E. Blackmon, and constructing therefrom a ditch by which they conducted the water about two miles to the placer grounds now owned by the plaintiffs. These placers are valuable for the gold contained there, and the water is necessary for the proper operation of the mine. The plaintiffs claim by mesne conveyances from those predecessors in interest, and assert that they are now the owners of the ditch and the water right. They further aver that about March 12, 1910, the defendants went upon said ditch, cut the bank, and turned the water back into the natural channel of the stream; that they threaten to continue to, and, unless restrained, will do so, all to the irreparable damage of the plaintiffs. They ask for a decree against the defendants, enjoining them from interfering in any way with the maintenance and operation of the ditch. The two defendants deny the allegations of the complaint, except that the defendant Gertrude E. Blackmon admits having prevented plaintiffs from excavating and constructing a ditch through her premises, and admits having turned the water out of the ditch and down the gulch. The defendant C. S. Blackmon avers that all he did in the way of cutting or destroying the ditch was done as the agent of his codefendant, Gertrude E. Blackmon. She alleges that about September 15, 1908, she entered upon the southwest quarter of section 26, township 9 S., range 41 E., and filed thereon a desert land entry, and at all times since then had been in the lawful and exclusive possession thereof, claiming by that title. She says that Quartz Gulch passes over a portion of the land above described; that it is a dry gulch, affording no stream of water, and that no water naturally runs through it, except only such surface water as comes from melting snows in the bare hills adjacent thereto. She also alleges that during the month of March, 1910, the plaintiffs wrongfully and unlawfully, and against her will and consent, entered upon her land, placed a dam in Quartz gulch, and wrongfully, by means of a ditch constructed there, turned the water upon her land, to her damage by way of soaking it and softening up the soil, and she prays for an injunction against the defendants, forbidding them from entering upon her land or constructing or operating a ditch there. The new matter in the answer was traversed by the replies. After a hearing upon the pleadings and the evidence reported by the referee, the court below rendered a decree, in effect establishing plaintiffs’ right to maintain and operate the ditch, but restricting their use of the water to the surplus above ten miner’s inches, under a six-inch pressure, calculated after excluding therefrom water drained from an adjacent mine. The defendants were enjoined from interfering with the prescribed operation of the ditch, and the plaintiffs were enjoined from using any water, except as above described. Both parties appeal.</p>

From Wallowa: John W. Knowles, Judge. Statement by Mr. Justice Moore. This is an action of replevin by W. J. Gollnick against Edgar Marvin.

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice Bean. This is an action by F. C. Whitten and J. C. Bryant, copartners as Whitten & Bryant against M. C. Griswold, to recover $10,507.48, commission for the purchase of timber lands. From a judgment in favor of plaintiffs, defendant appeals.

From Grant: George E. Davis, Judge. This is a suit by the Merchants’ National Bank against David A. McKeown, Joseph McClernan and Thomas M. Ray to establish a right to a certain mining claim in Grant County, Oregon. There was a decree in the lower court for defendants and plaintiff appeals.

From Marion: William Galloway, Judge. Statement by Mr. Justice McBride. Plaintiff claims to be a social club incorporated for the mutual benefit and social enjoyment of its members, and brings this suit to enjoin the city of Woodburn from enforcing certain city ordinances, respecting the traffic in intoxicating liquors, on the alleged ground that they are void and not authorized by the charter.

From Wallowa: John W. Knowles, Judge. Statement by Mr. Chief Justice Eakin. This is a proceeding by the George Palmer Lumber Co. to review the action of the county court of Wallowa County in laying out and establishing the county road. The petition for the writ raises but one question, namely, the sufficiency of the description of the proposed road, contained in the petition therefor, to confer jurisdiction on the county court.

From Lane: Lawrence T. Harris, Judge. This is a suit by the A. C. Bohrnstedt Company, a corporation, Charles Olson, S. Settenrich, T. R. Sloan, George Pirie, J. G. Gay and G. W. Gordon against W. J. Scharen to enjoin the obstruction of an alleged public road. From a decree of the circuit court dismissing the suit, plaintiffs appeal.

From Jackson: Frank M. Calkins, Judge. Statement by Mr. Chief Justice Eakin. Defendants Davis, Adkins, Whitehead, Keene, and Vawter, as promoters and incorporators, incorporated defendant company for the purpose of constructing a railroad from Medford to Crater Lake, in Jackson County, Oregon, with a capital stock of 500,000 shares, of the par value of $1.00 per share.

From Multnomah: William N. Gatens, Judge. This is an action by the Mutual Fire Company, of Portland, Oregon, a corporation, against F. E. Maple to recover an assessment made by the corporation upon a fire insurance policy issued to the defendant. From a judgment rendered by the circuit court in favor of defendant, plaintiff appeals.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice McBride. This is an action by P. W. Henderson against Henry Lemke and Agnes Lemke to recover commissions upon a real estate sale.

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Moore. This is an action by Marion County against the Wood-burn Mercantile Company, to recover delinquent taxes.

From Wheeler: Henry J. Bean, Judge. Statement by Mr. Justice McBride. This is a suit by G. J. McCoy and H. R. McCoy against Charles Huntley to restrain defendant from diverting and using more than one-half of the waters of Pine Creek in Wheeler County.

<p>From Marion: George H. Burnett, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is an action by A. W. Long and J. A. Hewitt against Charles Hoedle, George Sakuler and John Koeneke to recover on a promissory note. Defendants answered, denying the execution of the note. They introduced some testimony tending to show that the instrument was a forgery. Among other instructions, the court gave the following:</p> <p>“The plaintiffs allege this was for a valuable consideration. On that point it is presumed that the promissory note was given for sufficient consideration; that is a presumption of the law. But this is a disputable presumption, and may be overcome by other evidence.”</p> <p>The court further instructed the jury:</p> <p>“It is presumed that the private transactions about this note have been fair and regular, and that is a disputable presumption which may be overcome by other evidence. These are pieces of evidence which the plaintiffs are entitled to rely upon; that the transaction of taking the note was fair and regular. But the defendants would be entitled to show that the contrary was true.”</p>

<p>From Douglas: James W. Hamilton, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is an action by R. L. Sabin, plaintiff and respondent, against the Phoenix Stone Company, a corporation, E. G. Young, A. S. Young, J. C. Young and George J. Stearns, partners as E. G. Young & Co. and F. E. Smith, defendants and respondents; the Portland Trust Company of Oregon, a corporation, defendant and appellant; Charles Hegele. and D. W. Riedle, intervenors and respondents.</p> <p>For convenience the principal defendant will be called the stone company, the defendant Portland Trust Company of Oregon will be called the trust company, and Charles Hegele and D. W. Riedle will be called the interveners. Prior to February 1, 1907, the interveners were the owners of and in possession of a certain stone quarry property and business situated in Douglas County, Oregon. The stone company was organized for the purpose of taking over and operating this property. As a step in that direction, the stone company and the interveners executed an agreement that the purchase price of the property should be $30,624.69, payable part cash, some in notes, and some in shares of the stock pf the company; that in consideration thereof the interveners should execute and deposit with the trust company their warranty deed and bills of sale to the stone company for the quarry property, and for sundry contracts and personal property, and that the deed and other instruments of writing should be deposited in escrow with the trust company, upon the conditions that upon payment of the promissory notes the same should be canceled and delivered up to the makers, and the deed and bills of sale should be delivered by the trust company to the stone company; but, if default was made in payment of the notes by April 1, 1908, the agreement for the sale should be canceled, the deeds returned to the interveners, and the notes to the maker, the stone company. This escrow agreement was executed, on behalf of the stone company, by E. W. Barnes, its president, and B. Lee Paget, its secretary, and on behalf of the trust company by B. Lee Paget, its secretary; he having that position in both companies. It was also signed by the interveners, thus making it a tripartite agreement. As otherwise agreed, the stone company operated the quarry, but as the time approached for payment of the purchase price, as evidenced by the notes, it seemed certain that it could not raise the money to discharge its obligations according to the escrow agreement. In consequence of this, on January-23, 1908, the stone company made this proposition in writing to the interveners:</p> <p>“Portland, Oregon, January 23, 1908. The Phoenix Stone Company hereby proposes and agrees to pay to Messrs. Riedle and Hegele the sum of $28,500.00 as payment and settlement in full for all demands, including all outstanding notes with interest to April 1, 1908, and 2,000 shares of the company’s stock, upon the following terms, to wit: $10,500.00 cash on or before April 1, 1908, and $18,000.00 in first mortgage six per cent bonds of a proposed issue of $40,000.00 on all ■ the property and equipment of the company.</p> <p>“Phoenix Stone Company [Seal]</p> <p>“By E. W. Barnes, President.</p> <p>“By B. Lee Paget, Secretary.”</p> <p>At the foot of this writing are subscribed the words:</p> <p>“Accepted: Charles Hegele, D. W. Riedle.</p> <p>“Witnesses: Thornes F. Baylis, W. P. Benedict.”</p> <p>When this writing was executed, the intervener D. W. Riedle was one of the directors of the stone company and participated in its deliberations about floating the bonds now to be mentioned. At this time the company resolved to issue $40,000 in bonds, to be secured by a mortgage to the trust company as trustee, to be used in part in carrying out the offer and acceptance above quoted. Among other things, the mortgage given to secure these bonds contained a provision to the effect that on the motion of a majority of the bondholders, the trustee could be removed and another appointed. In pursuance of this provision, the interveners, having acquired a majority of the bonds, removed the trust company as trustee, and appointed in its stead the plaintiff, R. L. Sabin, which accounts for his being plaintiff in this suit to foreclose the mortgage, instead of the trust company. In connection with the above-quoted offer and acceptance, which will be in this opinion hereafter so styled, the stone company, by its board of directors, adopted on that date the folowing resolution:</p> <p>“Be it resolved, that the president and secretary be, and they are hereby authorized, as soon as they have realized on the sale of bonds the sum of $10,500.00 cash, to pay such sum of $10,500.00 to Charles Hegele and D. W. Riedle and deliver to Mr. Hegele and Mr. Riedle $18,000.00 in par value of the bonds above authorized, upon the release, surrender and delivery to the company of all the instruments now held by the Portland Trust Company of Oregon in escrow between this company and the said Charles Hegele and D. W. Riedle and the transfer to the company of the shares of stock purchased by said Hegele and Riedle from R. A. Eva and the execution of a proper release of all claims and demands of the said Hegele and Riedle against the company then existing; and be it further resolved, that until said $10,500.00 cash shall have been realized and such settlement made with Mr. Hegele and Mr. Riedle, no bonds shall be sold except on the condition that the money received therefor may be refunded and the return of said bonds demanded in case of failure to realize said $10,500.00 by sale of the bonds on or before April 1, 1908.”</p> <p>As the time approached for making the payment demanded by the escrow agreement, the stone company found itself unable to actually sell enough bonds to raise the $10,500 required by the offer and acceptance. At this juncture, the trust company assumed to consider the offer and acceptance as an abrogation of the escrow agreement, and, acting with the directors of the stone company, except the intervener Riedle, who was also a director, and with their knowledge and assent, but without notice to either of the interveners, and without their knowledge or assent, delivered the deed from the interveners to the stone company, surrendered the .notes of the stone company held in escrow, took the mortgage named in the complaint, recorded it and the deed, and loaned to the stone company, through its secretary, Baylis, $10,000, taking as security in pledge therefor $17,000 of the bonds provided for in the mortgage. The fact that the loan was made on these bonds as a pledge was kept secret from the interveners until after the deed had been surrendered, and it and the mortgage recorded. Yielding to the importunities and persuasions of the president of the trust company, the interveners accepted this $10,000, together with $500 otherwise raised by the stone company, and the $18,000 in bonds; all the time being ignorant of the fact that the $10,000 had been raised upon a pledge of the $17,000 in bonds. Afterwards these pledged bonds were sold in part, so that they were reduced to $13,000, and the proceeds from such sales and payments from other sources reduced the note to $4,197.45, on July 21, 1909. Becoming dissatisfied with the trust company as trustee, the interveners caused its removal, as aforesaid, and directed the new trustee to commence suit to foreclose the mortgage for the payment of their bonds, amounting to $20,500, and $6,500 of bonds held by other parties, about which there is no question, making $27,000 in all.</p> <p>For the purposes of this decision, the answers of the other defendants or lienholders are not material at this juncture. The defendant trust company answered, and after some denials set up, in substance, that it took the $13,000 remaining on hand of the bonds for collateral security for the $10,000 loaned to the defendant stone company, through its secretary, Baylis; that it had brought suit to foreclose its pledge, and sought to apply the proceeds of a sale of the $13,000 bonds, not only to the payment of the Baylis note, but to other indebtedness of the defendant stone company owing to the trust company, and that at ■ the sale upon the decree ensuing it had purchased the $13,000 of bonds remaining, and was then the owner and holder thereof. The interveners then filed their complaint in intervention, charging, in substance, that, having entered into the escrow agreement mentioned, the defendant trust company and the officers of the defendant stone company had formed a conspiracy to defraud the interveners, and to so manipulate the bond transaction as to deprive them of their property in the stone quarry, and to prevent them from realizing the full purchase price thereof. • The burden of their prayer was that the $13,000 bonds should be canceled and held for naught in the hands of the defendant trust company. Answering the complaint in intervention, the trust company, after certain denials, attempted to plead that the interveners, having accepted the $10,500 cash and $18,000 in bonds under the offer and acceptance, and not having returned either the cash or bonds to the stone company, but, on the contrary, are seeking to have the mortgage foreclosed to pay these very bonds, are estopped to make the allegations of the intervention complaint. The trust company also, in this answer, deraigned title to the $13,000 of bonds by virtue of purchase at the sale on foreclosure of the pledge, as .before mentioned. The new matter of the trust company’s answer to this complaint was traversed by the interveners. The substance of the decree of the court below was to cancel these bonds and foreclose the mortgage for the payment of the remaining $27,000 of the $40,000 issue authorized by the mortgage in the first instance. The trust company appeals from that decree. Modified.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBride. This is an action by W. G. Nutt against William Isensee for damages for personal injuries.

From Marion: William Galloway, Judge.' Statement by Mr. Justice McBride. This is a suit by the Southern Pacific Company, a corporation, against the Railroad Commission of Oregon, to enjoin defendant from putting into effect its order, requiring plaintiff to construct and maintain a spur on its main line at the town of Edenbower, in Douglas County.

<p>From Union: Henry J. Bean, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by J. L. Caviness, against the La Grande Irrigation Co., the Oro Dell Canal Co., the Irrigation Canal Co., the May Park Water Co., the May Park Water Ditch Co., the Nessly Ditch Co., the L. Oldenburg, A. L. Richardson and J. J. Nessly Ditch Co., the City of La Grande, J. B. Stoddard, L. C. Pennell and J. S. Chandler.</p> <p>The Grande Ronde River, where involved in this suit, is a nonnavigable stream flowing from the west in a general easterly course through the valley of the same name. Of all the parties to the suit the plaintiff owns lands farthest down stream. The record does not disclose any riparian proprietor or appropriator of water below him. Asserting that he is the owner in fee simple and in possession of certain lands described in his complaint, through which the river runs in its ancient course now and from time immemorial and upon which for more than forty years he has resided and farmed for crops of various grains, grasses, alfalfa, sugar beets, garden products, orchard trees, and fruits, on December 22, 1906, he filed his amended complaint in this suit to enjoin the defendants from taking water out of the stream above him to the material diminution of his appropriation thereof alleged to have been made by him in June, 1865. The defendants include the city of La Grande, a municipal corporation organized and existing under an act of the Legislative Assembly of Oregon, seven private corporations here named and admitted by plaintiff to have been incorporated at dates as follows, to wit: The La Grande Irrigation Company, May 19, 1903; the Oro Dell Canal Company, February 19, 1872; the Irrigation Canal Company, October 4, 1883; the May Park Water Company, January 15, 1902; the May Park Water Ditch Company, May 10, 1902; The Nessly Ditch Company, February 28, 1898; and the L. Oldenburg, A. L. Richardson and J. J. Nessly Ditch Company, September —, 1897, besides the individually named persons, J. B. Stoddard, L. C. Pennell, J. S. Chandler, and N. K. West. It is stated in the amended complaint. that the lands of plaintiff therein described are naturally arid, but when properly irrigated produce large and remunerative crops of the kinds mentioned. A similar allegation appears in each answer respecting the lands mentioned in such answer, and the testimony sustains the truth of the statement wherever it appears in any of the pleadings. The plaintiff further avers that during the month of June, 1865, he went upon the river at a point particularly described and adjacent to his land, and, to use the language of his pleading, “appropriated 500 cubic inches, miner’s measurement, under six-inch pressure of the waters of said Grande Ronde River, and, while the same was unappropriated by others, diverted said quantity and appropriation therefrom, by means of dams, ditches, and other means, to and upon his said premises and lands so occupied by him, for domestic, stock, and irrigation purposes, and has ever since said date openly, notoriously, adversely, and under claim of right and title so maintained said appropriation and diversion for the beneficial uses aforesaid.” The plaintiff further avers, substantially, that although, when not interfered with, the river formerly and naturally flowed through and past his lands at the rate of 20,000 inches, miner’s measurement, under 6-inch "pressure, of late years during July, August, and September the stream has become so depleted in volume that even when undisturbed by upstream diversions it flows through his land at no greater rate than 5,000 inches, measured as above stated, and still during those months of each year he needs and requires for the purposes mentioned not less than the quantity of water originally appropriated. He then charges that for four years past all the defendants except the La Grande Irrigation Company and the natural persons named, and during the irrigating season of 1906 all the defendants without exception, by means of dams, pumps, ditches, and other appliances named, have so diverted the water of the river at points above .him without returning it and allowing it to flow to his point of diversion that he is deprived of water under his appropriation to such an extent as to injure and dry up his crops, inflicting upon him great pecuniary loss, and that they threaten to, and unless restrained by the court’s decree will, continue that course of conduct all to his irreparable damage. He prays for such a decree and that his title to his alleged appropriation be established and quieted.</p> <p>During the hearing before the referee appointed to take and report the testimony, it was agreed that the suit should be dismissed as to N. K. West. Among the orders appearing in the record is one sustaining demurrers of plaintiff to answers' of L. C. Pennell and J. S. Chandler; but neither of such answers or any amended answer on behalf of either Pennell or Chandler appears in the record before us. No answer of the La Grande Irrigation Company has been sent to this court, although considerable testimony on behalf of it and Pennell and Chandler has been taken and reported. As pruned by motions and demurrers, the rulings of the court upon which are not questioned on appeal, the answers of the appealing defendant corporations are in legal effort fashioned after the same pattern. Each of such answers, after traversing the allegations of the amended complaint, alleges the purposes and objects of the corporate organization to be “the management and control and the conducting of the business of diverting waters from the Grande Ronde River and conducting and carrying the same by means of dams, flumes and ditches to the lands owned and occupied by its stockholders hereinafter more particularly described, and dividing and distributing the same to its stockholders in certain proportions controlled by its directors in accordance with its rules and orders for irrigation purposes, stock water, and domestic use upon their lands.” Each of such answers further states, in substance, that its stockholders and their predecessors in interest settled on the lands now owned and cultivated by the stockholders in 1862-1864 and afterwards acquired title thereto from the general government under its public land laws, and then goes on to state that the stockholders of the defendant answering and their predecessors in interest, those of the Nessly Ditch Company in 1862 to 1865, of the Irrigation Canal Company and May Park Water Ditch Company in 1864, and of the Oro Dell Canal Company in 1870, by means of dams, diverted water from the river at various points and conducted and used it upon their lands for stock water and domestic and irrigation needs so long as the dams and ditches were kept up for that purpose, and afterwards they jointly built a dam in the river at a place specified so as to make one point of diversion serve them all, built a headgate, connected therewith a ditch running to said lands, and diverted through the same a specified number of inches of water, miner’s measurement, under six-inch pressure, “since which time the said stockholders of this defendant and their predecessors in interest have used said dam and ditch as their exclusive and only diversion of the waters of said stream for use upon their lands.” These answers further assert that since the building of the one dam and ditch for all in each instance the defendant and its stockholders and their predecessors in interest openly, notoriously, adversely, and under claim of right as against the plaintiff and the whole world have continued for more than 10 years prior to the commencement • of this suit the same diversion of water; the whole thereof being necessary to the cultivation of those lands. It then sets out in detail the name of each of its stockholders, the number of shares of capital stock, and the acreage of land owned by each and the kind of crops grown thereon. Its prayer is that the plaintiff’s complaint be dismissed and that its own right as stated be quieted and established as against all other parties to the suit.</p> <p>The following allegation appears in each answer of the corporation defendants appealing except in the answer of the Nessly Ditch Company:</p> <p>“That all the waters diverted as herein alleged from the Grande Ronde River either by riparian or nonriparian appropriators were open public and unappropriated waters of said stream, and such appropriation was made by and with the knowledge and consent of riparian owners of land upon said stream at the point of diversion and at all points on said stream between said point of diversion and below the alleged riparian property of the plaintiff.”</p> <p>The answer of J. B. Stoddard and the L. Oldenburg, A. L. Richardson & J. J. Nessly Ditch Company including the first further and separate answer is like that of the Oro Dell Canal Company, except that the Oldenburg, Richardson & Nessly Ditch Company disclaims any interest in the ditch or water used by Stoddard. Stoddard also alleges that for more than 10 years last past during irrigating seasons he has continuously used 100 inches of water, miner’s measurement, openly, notoriously, exclusively, adversely, and under , claim of right as against all the world including plaintiff, and that none of the water so used was ever returned to the river, of all of which plaintiff had full knowledge, by reason whereof defendant Stoddard avers he is the owner of 100 inches of water. The reply to the answer of Stoddard denies the new matter thereof and alleges that the Oldenburg, Richardson & Nessly Ditch Company abandoned . its appropriation and diversion about 1905; that Stoddard, did not succeed to its rights; but that, on the contrary, he claims to have appropriated water directly from the river within two years last past by reason of which, operating with the diversions of the other defendants, the plaintiff has been deprived of the use of water according to his rights, the same being the injury of which he complains. The new matter in the answer of the other appealing defendants was traversed by the replies. The May Park Water Company answered denying that it had diverted any water in diminution of the alleged appropriation of the plaintiff, but otherwise admitted all the allegations of the amended complaint. This defendant, May Park Water Company, also filed a cross-petition against its codefendants, but not against the plaintiff, which is in substance the same as the new matter in the answers of the appealing defendants to the amended complaint. The essence of its prayer was that its right to an appropriation of water amounting to 500 inches, miner’s measurement, under a 6-inch pressure, bq declared paramount since January 15, 1902, to the appropriation^ of the other defendants in excess of certain quantities much less in each case than they respectively claimed. No summons or order of court requiring the other defendants to answer this crosspetftion appears in the record. It was answered, however, by general denials on behalf of Oro Dell Canal Company, May Park Water Ditch Company, and J. B. Stoddard. In addition to his denials, Stoddard alleged in answer to the cross-petition practically the same new matter which appears in his answer to the amended complaint, but no reply to it appears in the record. The remaining defendants made no answer to the cross-petition.</p> <p>It is here set down, in passing, that in each answer of the appealing defendants to the amended complaint there is a statement that the new matter is alleged as a counter-claim for affirmative relief, and the settlement of the right of the defendant making the answer as to the water of the river against the claim of the plaintiff as well as against' the adverse claims of the several defendants and to quiet the title of the defendant and its stockholders to the water appropriated by it. In none of such answers, however, is there any charge made that any other defendant has done any act interfering with or diminishing the appropriation claimed by the answering defendant. No order of the court or summons requiring the other defendants to plead to the new matter in such answers appears in the record. In brief, no issue is raised among the defendants except those predicted upon the cross-petition of the May Park Water Company and the answers to the same as hereinbefore noted. The circuit court found in substance that the plaintiff had made a valid appropriation of 265 inches of water out of the Grande Ronde River, miner’s measurement, under 6-inch pressure, prior to any and all the defendants or any of their stockholders or predecessors and proceeded in detail to ascertain and fix the amount and order of priority not only of the claim of each defendant, both individual and corporate, but also of each stockholder in each private corporation defendant, and passed a decree accordingly, with costs and disbursements proportionately adjusted among the parties plaintiff and defendant. The Oro Dell Canal Company, May Park Water Ditch Company, Nessly Ditch Company, and J. B. Stoddard severally appealed from this decree, and each appealing defendant served its notice of appeal on every other party to the suit.</p>

<p>Evidence—Admissions—Construction—Building Contracts—■ Breach—Special Damages.</p> <p>1. The testimony of a building contractor suing for his wrongful discharge from the job, and alleging that he was deprived of present and future work to his damage in a specified sum, that he has been at work during most of the time since the discharge, is an admission that no damages as alleged resulted.</p> <p>Evidence—Opinion—Damages—Breach of Contract—Loss of Profits.</p> <p>2. A party to a contract, who seeks to recover loss of profits by breach of the contract, must establish the loss by proof of data from which the extent of the profits may be computed, and the opinion of witnesses as to what profits a contractor would have made if permitted to complete the work, Is inadmissible to establish such loss.</p> <p>Appeal and Error—Disposition of Case on Appeal—Conditional" Affirmance.</p> <p>3. "Where the amount erroneously allowed as damages in an action for breach of contract is certain, the Supreme Court may affirm the judgment on condition that plaintiff will remit such amount.</p>

<p>From Lane: Lawrence T. Harris, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is a suit by Delford S. Hawkins and Margaret C.. Hawkins against John Doe, true name unknown, and who is the nephew and heir at law of A. J. Black, deceased, all known heirs of A. J. Black, deceased, and L. E. Ward, administrator of the estate of A. J. Black, deceased, to compel defendants to specifically perform an alleged oral contract to convey land. The complaint alleges, in substance, that on September 25, 1907, plaintiffs entered into an oral contract with A. J. Black, defendants’ intestate, whereby they agreed to furnish him board and clothing, and allow him to live with them as long as he should live, to care for him in his last sickness, and to stay by him until his death; that he was 75 years of age, had no relation, and that it was necessary for him to have some one care for him; that as a consideration of such services Black agreed to execute a deed to plaintiffs, which was to provide that they take and hold exclusive possession of the premises described in the complaint, and to have the proceeds therefrom as long as Black should live, and that at his death the whole interest should pass to plaintiffs, Black reserving a life interest in the premises for his own protection; that the premises were to be conveyed subject to the debts of Black; that plaintiffs fully performed their part of the agreement; that Black died on the 6th day of November, 1907; that he failed to execute the deed for the reason that he was stricken with paralysis, and thereafter, up to the time of his death, his condition was such that he was unable to do so; that L. E. Ward was appointed administrator of the estate, and in February, 1909, the county court made an order directing him to sell the property for the payment of debts, which amounted to about $600; that plaintiffs had been informed by deceased that he had a nephew living in California, whose true name is unknown, and he is therefore, designated by the name of “John Doe, nephew and heir at law of A. J. Black.” Plaintiffs pray for a decree requiring that' the covenant be specifically performed; that they be declared the owners of the premises; and that, if the property shall have been sold by the administrator before final decree, they be declared to be the owners of the residue of the money received from such sale, after the debts and expenses of administration shall have been paid. There was service by publication against John Doe, who has not appeared; and personal service upon the administrator, who answered, denying the alleged agreement, and alleging that the premises had been sold at the administrator’s sale and conveyed by a sufficient deed to the purchaser. The sale and conveyance are admitted in the reply. Upon the trial the court held that after the sale, there being no specific performance possible as to the land, plaintiffs’ demand became a mere money demand, not cognizable in a court of equity, and upon that ground refused to find upon the principal fact —the alleged contract—and dismissed the suit. Plaintiffs appeal.</p>

From Coos: John S. Coke, Judge. Statement by Mr. Chief Justice Eakin. This is an action by S. J. Culver against M. Van Valkenburgh and John Van Valkenburgh. The facts are as follows: On September 1, 1907, plaintiff executed to S. J. Huff a lease to certain lands for the term of five years, which contained mutual covenants, and Huff entered upon the premises thereunder.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice McBride. This is a suit by M. E. Matthews against L. F. Matthews for divorce; the alleged grounds being cruel and inhuman treatment. Defendant answered, denying the allegations of the complaint, and by cross-complaint claimed a divorce from plaintiff: (1) On the ground of adultery with one Monroe Purvine. (2) On the ground of cruel and inhuman treatment.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Burnett. This is an action originally commenced by John Manning, as District Attorney for the Fourth Judicial District of the State of Oregon, against A. B. Burger and M. Kutner, to recover upon an. undertaking of bail. The present plaintiff, Cameron, having succeeded to that office, was substituted as plaintiff.

<p>From Multnomah: William N. Gatens, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by Martin Sattler against L. H. Knapp and Olivia H. Failing, to foreclose a mechanic’s lien upon certain real property described in the complaint said to have been incurred for services and material furnished in painting a house thereon amounting in reasonable value to $425, no part of which has been paid, except $200. The complaint alleges, and the answer denies, that $50 is a reasonable amount to be allowed as attorney’s fees in the suit. The plaintiff made Olivia H. Failing a party defendant, alleging her to have some lien or claim upon the premises subsequent and inferior to the lien of the plaintiff. There is practically no dispute as to the performance of the services, the furnishing of the material, and the filing of the notice of lien within the time prescribed by law. The principal controversy arises upon the validity of the counterclaim pleaded by the defendant. In the house in question there was a hot water furnace, and about that the answer alleges:</p> <p>“That heretofore, and on or about the - day of January, 1909, this defendant’s architect, at plaintiff’s request and in order and to the end that plaintiff might continue and complete his said contract of painting defendant’s house, as set out in paragraph 2 of plaintiff’s complaint, and for plaintiff’s sole use and benefit, and without charge, licensed, permitted, and allowed plaintiff to use a certain hot water furnace and system then installed in this defendant’s house, upon which plaintiff was performing his said labor. * * That by the terms of said license and permission to plaintiff to use said furnace system, as aforesaid, the plaintiff undertook and agreed to take proper care of and prevent said system from freezing or from damage in any manner whatsoever.”</p> <p>In substance, the answer then alleges that by reason of the plaintiff’s negligence in the management of the furnace he allowed the fire to die out, as the result of which the water froze in the heating plant and caused the boiler, pipes, and radiators to burst so that they were of absolutely no value, that the defendant was compelled to expend $215.91 in repairing the damage done by plaintiff’s negligence. The defendant avers:</p> <p>“That the contract price between the plaintiff and the defendant agreed for the painting of this defendant’s house was $425; that this defendant paid plaintiff February 16, 1909, the sum of $200; that this defendant has a counterclaim against the plaintiff on account of said repairing in' the sum of $215.91: and that there is now due and owing to the plaintiff from the defendant the sum of $9.09.”</p> <p>He then alleges a tender of $9.09 and $1.00 for filing the lien and takes the same into court. A general demurrer to the new matter in the answer having been overruled, a reply was filed denying the same. The defendant Failing defaulted. There was no testimony on the subject of attorney’s fees. After a hearing on the issues involved, the court made findings of fact ‘and conclusions of law and entered a decree declaring that the lien of the plaintiff is null, void, and of no effect, and dismissed the suit, and hence this appeal.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>The defendant, Harry Meister, was convicted of the crime of seduction, and he appeals.</p>

<p>Highways—Establishment by Usee—Presumption as to Extent op Use.</p> <p>1. Where the owner of land abutting on a road laid out by the county builds a fence on the line claimed by him, the public use of the road will be presumed to extend to the fence.</p> <p>Municipal Corporations—Streets—Establishment by User — Evidence op Location.</p> <p>2. Evidence in an action to enjoin an abutting owner from extending a building into a city street held sufficient to show that certain trees indicated the line of a fence built by the predecessors of the abutting owner and which served for more than twenty-four years as a boundary of a public road.</p> <p>Municipal Corporations — Obstruction of Street — Action for Injunction—Estoppel.</p> <p>3. In an action by a city to enjoin defendant, an abutting owner, from extending a building in the course of erection beyond the line of the street where defendants had not occupied the property beyond the line or been induced by the city to do any act or make any expenditure upon the grounds outside of such line, and where defendant had sufficient knowledge to put him on inquiry as to the city’s right, there was no estoppel against the city.</p>

From Wallowa: John W. Knowles, Judge. Statement by Mr. Chief Justice Eakin. This is an action by Beatrice DeVall against Thomas De Vall to recover judgment for the sum of $1,008, with interest and costs, upon a decree of the circuit court of the State of Wisconsin. This is the second appeal. For a full statement of the issues, see the same case in 57 Or. 128 (109 Pac. 755).

Original proceeding in Supreme Court. Original mandamus proceeding in Supreme Court by G. A. Schubel against Ben W. Olcott, Secretary of State, to require him as such officer to file an initiative petition for a local option law for Clackamas County.

<p>From Marion: George H. Burnett, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an action of ejectment by Edna J. Brown, Perry Burch, and C. A. Hicks-Burch, as trustees of Silver Lodge, No. 36, Independent Order of Good Templars, against George A. Webb and Elizabeth Webb. The cause was tried before a jury, and from a judgment of involuntary nonsuit plaintiffs appeal.</p> <p>It is alleged on the part of plaintiffs that during all the times mentioned in the complaint Silver Lodge, No. 36, Independent Order of Good Templars, was and is a benevolent society, organized and existing under and by virtue of the laws of the State of Oregon, and that Edna J. Brown, Perry Burch, and C. A. Hicks-Burch are the duly elected, qualified, and acting trustees of said lodge.</p> <p>The defendants deny the substance of the allegations made by plaintiffs. They plead the statute of limitations, and further aver that defendant, George A. Webb, is the owner in fee simple of the real property.</p> <p>Issue is joined by the reply. The real estate involved is a fractional lot in the city of Silverton North, Marion County, Oregon, upon which is situate a building, the upper story thereof having been used by the said order of Good Templars as a lodge room. It appears that on January 24, 1871, at a regular meeting, John C. Davenport, Fones Wilbur, and S. T. Wilbur were elected trustees of the lodge, and instructed to incorporate it. On October 7th of that year articles of incorporation in triplicate were prepared and signed by said trustees, but not acknowledged. On the 10th of the same month one of the articles was filed with the Secretary of State, and another with the county clerk of Marion County, as required by statute. Certified copies of the articles filed, together with one of the originals retained by the lodge, were offered in evidence and objected to by defendants’ counsel for the reason that the same had not been acknowledged. Testimony was introduced by plaintiffs tending to show that the lodge had held meetings from time to time up to the date of the commencement of the action, and records of these meetings were produced, dating as far back as March 20, 1899. It was claimed by plaintiffs that the older records of the lodge could not be found. The testimony offered tended to show that, before defendants took possession of the building, it had been the custom for a long time to keep the old record books in the lodge room; that demand had been made and notice served upon defendants to produce the same; that search and inquiry had been made wherever it was thought they might be, but without result;.and, furthermore, that the minutes of some of the meetings had been written upon loose sheets of paper, and not copied into the regular lodge records. Plaintiffs offered to prove by parol evidence that other meetings of the lodge were held during the time between the date of the articles of incorporation and the date of the minutes produced for the purpose of showing that the lodge was a corporation de facto. They also offered certified copies of conveyances to show a chain of title to the property from the government of the United States to the said trustees. To all of this objection was made by counsel for defendants as incompetent, for the reasons that the lodge records were the best evidence, and that no sufficient excuse had been shown for their nonproduction, and that the lodge was not legally incorporated. The trial court sustained these objections, rejected the offer of proof, and granted defendants’ motion for a nonsuit. Plaintiffs duly saved exception to these rulings, and assign the same as errors.</p>

<p>Evidence—Opinion—Value op Property in Condemnation Proceedings..</p> <p>1. While a witness acquainted with the circumstances may detail the facts from which a conclusion may be deduced as to the extent of injury sustained or contemplated, he may not invade the province of the jury and express an opinion thereon; so that, in condemnation proceedings, a witness was improperly allowed to testify as to the amount of damage the defendant would sustain by the condemnation of a right of way through his property.</p> <p>Eminent Domain—Proceedings to Take Property by Eminent Domain—Price Paid for Similar Property.</p> <p>2. In eminent domain proceedings, the amount of damage sustained or anticipated by the defendant cannot be measured by the amount of damages paid to an owner of adjoining land, so that evidence as to settlement made by such owners was improperly admitted.</p> <p>Eminent Domain-—-Proceedings to Take Property—Evidence.</p> <p>3. A railroad has no power to obligate itself as to the running of its trains in a way which would interfere with the right of the public therein, so that in proceedings to take property for a right of way an answer of a witness who was the engineer in charge of the construction that the company would obligate itself that the traffic between the factory and the wharf of the defendant would not be interfered with was improper.</p> <p>Eminent Domain—Pleading—Amendment of Complaint by Statement—Instructions.</p> <p>4. A statement filed by the plaintiff in condemnation proceedings after the issues were made up waiving a right to take a full 100 feet as a right of way and restricting the amount to 75 feet, and also reserving to the defendant the right of crossing plaintiff’s right of way at some suitable point, cannot be considered an amendment to the complaint, as it offered no opportunity to the defendant to move to have it made more specific so as to designate the place and width of the proposed crossing and which party was to make and maintain it, which were proper to be considered by the jury, and instructions which dealt with the plaintiff’s complaint as though it were modified by the waiver filed were improper as not predicated on any issues involved.</p> <p>Trial—-Instructions—Basis in Evidence.</p> <p>5. And, where the statement was filed prior to the trial, and, while called to the attention of the court, was neither offered nor read in evidence, instructions which take it into consideration are improper, as not based upon any evidence given at the trial.</p> <p>Eminent Domain—Proceedings—Open and Close.</p> <p>6. Under Section 6860, L. O. L., which provides that an action for the condemnation of real property shall be commenced and proceed to a final determination in the same manner as an action at law, and under Section 132, L. O. L., which allows a plaintiff in a civil cause the right to open and close the introduction of evidence, and the argument to the jury, unless the court for special reasons otherwise directs, the refusal to allow defendant to open and close in a proceeding for the condemnation of land is discretionary with the court, and not subject to review in the absence of plain abuse.</p>

<p>From Washington: James U. Campbell, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is a suit by John A. Foote against W. J. Lichty, Frank Lichty, Lydia Gardner, Emma Hamel and E. B. Tongue.</p> <p>The substance of the complaint is that at some date in 1908, being then and ever since the owner of a tract of 162 acres of land in Washington County, the plaintiff, at the solicitation of the defendant W. J. Lichty, but without consideration or the knowledge of any of the defendants except W. J. Lichty and E. B. Tongue, executed four conveyances, one each in favor of the defendants W. J. Lichty, Frank Lichty, Lydia Gardner, and Emma Hamel, which, taken together, included the whole of said premises. He charges that the four deeds, immediately upon their execution, “were deposited with the defendant E. B. Tongue in escrow, to be delivered to each of the defendants named in said several deeds of conveyance upon the death of the plaintiff herein, provided the plaintiff herein should not, prior to his death, demand the possession thereof from the said defendant E. B. Tongue; and, at the time of the delivery of said four deeds of conveyance to the said defendant E. B. Tongue, it was understood and agreed that said deeds of conveyance should not be delivered to the defendants W. J. Lichty, Frank Lichty, Lydia Gardner, and Emma Hamel, until after the death of the plaintiff herein, in the event the said plaintiff herein should not in the meantime demand possession thereof.” He further avers that, although prior to commencing this suit he has demanded immediate possession of the deeds from Tongue, the latter refuses to surrender them. Then, without any allegation that either of the defendants threatens or intends to record the deeds, he says, in substance, that if Tongue shall deliver them to the other defendants, and they are recorded, they will be a cloud upon his title, and the defendants, other than Tongue, claim some interest in the land by virtue of the deeds, but the same is void. He prays that the cancellation of the deeds and his ownership of the property be decreed.</p> <p>The answer traverses the whole complaint, except as otherwise stated, and alleges that without solicitation thereto by either of the defendants the plaintiff on November 25, 1908, for a value consideration, executed and delivered to each defendant a deed for a certain described parcel of the land and “placed said deeds of conveyance in the possession of the defendant E. B. Tongue, and instructed him to retain the same in his possession until the death of the plaintiff, and then to deliver to the other defendants, respectively, the deeds to their respective tracts of land as above described.” After joining issue on material allegations of the answer, the reply reiterated an allegation of the complaint to the effect that ever since the execution of the deeds plaintiff has been in possession of the property, enjoying the rents, issues, and profits, and that neither of defendants has been in possession of any part, except that W. J. Lichty has been in possession as tenant of plaintiff. The circuit court, after hearing, made findings of fact and conclusions of law for defendants, and from the resulting decree plaintiff appeals.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Moore. This is an action by L. E. Peterson and L. M. Bitney, as partners and real estate brokers, against Carrie 0. Kenady, to recover a commission.

From Douglas: James W. Hamilton, Judge, Statement by Mr. Justice McBride. In June, 1906, plaintiff, J. A. Buchanan, entered into a written contract with defendant, Phoebe Tennant, to clear her title to certain land in Douglas County, from a cloud cast upon it by sales thereof made by the county for delinquent taxes.

<p>From Coos: John S. Coke, Judge.</p> <p>Statetment by Mr. Justice McBride.</p> <p>This is an action brought by F. K. Gettins against P. Hennessey, M. N. Knuppenburg, F. M. Wilson and D. H. Butts as partners under the style and firm name of S. Y. W. C. R. R. Co., to recover payment for services rendered to an alleged partnership between Hennessey and the other defendants named herein.</p> <p>The complaint is for work and labor performed as a surveyor, and for materials furnished, and also upon an assigned account of the same character for work and labor performed by D. L. Buckingham. Hennessey was the only defendant served, and he answered by a general denial.</p> <p>Upon the trial, plaintiff was asked the following questions, each of which was answered, over objection, as follows:</p> <p>Q. “You may state, if you know, whether or not there was a firm operating at the city of Marshfield, Coos County, Oregon, known as the S. Y. W. C. R. R. Co. at that time.”</p> <p>A. “Yes, sir.”</p> <p>Q. “Mr. Witness, you may state, if you know, whether that firm, known as the S. Y. W. C. R. R. Co., was a partnership ?”</p> <p>A. “I understood it so.”</p> <p>Q. “Now, Mr. Witness, you may state, if you know, who composed that partnership ?” (To which question the defendant made the same objection as to the former question, which objection the court overruled, to which ruling defendant excepted, and which exception was allowed.) “A. D. H. Butts, F. M. Wilson, M. N. Knuppenburg, and Patrick Hennessey.”</p> <p>Q. “Whom did you • understand you were working for when you took that employment?”</p> <p>A. “This so-called company; D. H. Butts, F. M. Wilson, M. N. Knuppenburg, and Patrick Hennessey.”</p> <p>Q. “Mr. Witness, did you ever, during the time that you were employed by this partnership or firm, see any newspaper articles, cards, or advertising matter that indicated who the persons were in the firm, known as the S. Y. W. C. R. R. Co.?”</p> <p>A. Yes, sir; I did.”</p> <p>The witness was then handed a card, which he testified had been given him by A. H. Stutsman, at the latter’s office, and the witness was then asked the following question:</p> <p>Q. “Mr. Witness, you may state what was the occasion of his giving you that card.”</p> <p>A. “Merely to show me of the organization of this company.”</p> <p>Plaintiff’s counsel then offered the business card in evidence. Defendant’s counsel objected to its admission, on the ground that it was irrelevant, incompetent, and immaterial; no proper foundation having been laid, and it not having been properly identified, nor shown to be connected with this defendant in any way. The court overruled the objection, and defendant excepted thereto. The exception was allowed and the card was then received in evidence. Counsel for plaintiff then offered in evidence a portion of a newspaper theretofore identified by plaintiff, and defendant’s counsel objected to its admission on the same grounds above stated. The objection was overruled, defendant excepted to the ruling, and the exception was allowed. The portion of the newspaper was then received in evidence. The following questions were asked:</p> <p>Q. “Mr. Witness, from your transactions with those named by you heretofore in your testimony, and from what you have seen in the newspaper articles, cards, or advertising matter, and from the defendant’s conduct in and about your employment, have you any knowledge as to who the members were of the S. Y. W. C. R. R. Co. ?”</p> <p>A. “I have.”</p> <p>Q. “Mr. Witness, from the manner of their dealings with you prior to your employment, will you state whom you understood the parties in the firm of the S. Y. W. C.</p> <p>R. R. Co. to be?”</p> <p>A. “D. H. Butts, F. M. Wilson, P. Hennessy, and M. N. Knuppenburg.”</p> <p>The card referred to is as follows:</p> <p>Col. D. H. Butts, President Col. F. M. Wilson, Vice-President P. Hennessey, Treasurer</p> <p>S. Y. W. C. R. R. CO.</p> <p>MARSHFIELD</p> <p>OREGON</p> <p>M. N. Knuppenburg Secretary and Manager</p> <p>The newspaper extract referred to was a local item from the Coos Bay Daily Times, published at Marshfield, Oregon, stating that the “S. Y. W. C. R. R. Co., the successor to the O. C. & N. Co.,” was about to make extensive improvements on the water front in that city, and setting forth the character and need thereof, and that “M. N. Knuppenburg, the secretary and manager of the company,” had advertised for bids for the work, etc., and closing with the statement that “P. Hennessey, who has been manager of the Libby mine for a number of years, is treasurer of the new company.” There was no evidence that either the card or the item in the paper came to the notice of defendant Hennessey until long after the plaintiff’s work was completed, and when on the witness stand he denied any knowledge of evidence of them until after the commencement of this action.</p> <p>Counsel for plaintiff, over defendant’s objection, also asked the witness F. W. Stevens the following questions:</p> <p>Q. “Do you know who composed that company.” ■</p> <p>A. “Only as represented by advertisements and cards and general information.”</p> <p>Q. “At the time you were employed by them, or before the time you were employed by them, did you see any newspaper articles, cards or advertising matter that indicated who comprised that company?”</p> <p>A. “I did.”</p> <p>Q. “At the time of your employment, and in November, 1908, state whether or not you saw any newspaper articles concerning the formation of this company?”</p> <p>A. “I did.”</p> <p>Q. “From the cards or card which was handed you, from your dealings with this man Stutsman, and from the newspaper articles which you saw at the time of your employment, concerning the purposes of formation of the S. Y. W. C. R. R. Co. whom did you understand the members of that company to be?”</p> <p>A. “I understand them to be Col. Butts, Col. Wilson, P. Hennessey, and M. N. Knuppenburg.”</p> <p>Several other witnesses were called, and were asked substantially the same questioins, and like answers were made. Plaintiff testified on cross-examination that he knew the defendants to be partners by information received from their agent, Mr. Stutsman, and from Mr. Bruschke, and from general talk.</p> <p>Mr. Bruschke testified as a witness for plaintiff substantially as follows:</p> <p>Q. “State what Mr. Hennessey and you said to each other, relative to that company.”</p> <p>A. “I asked Mr. Hennessey whether it would be all right if I would sell any of the property for the company, and Mr. Hennessey said that it would be all right.”</p> <p>Q. “Was that all that he said at that time?”</p> <p>A. “I further asked him to whom I should pay the money, if I received any money from any of the parties that buy any of .the land, and Mr. Hennessey said I could pay it over to him or to Mr. Knuppenburg.”</p> <p>Q. “If he stated at that time that he held an office in that company, you may so state.” * *</p> <p>Q. “Was that all that Mr. Hennessey said to you at that time about his relations with this Company.”</p> <p>A. “I believe that it was all, about.”</p> <p>Q. “Did he, or did he not, at that time, suggest that he was an officer of the company.”</p> <p>A. “Yes.”</p> <p>Q. “What office?”</p> <p>A. “Treasurer.</p> <p>Q. “Mr. Bruschke, did you at any time during the course of your conversation with Mr. Hennessey have any conversation regarding the interest or amount of interest that Mr. Hennessey had in the company?”</p> <p>A. “Well, we had some talk; yes.”</p> <p>Q. “What was'that?</p> <p>A. It was regarding the corporation; whether the deal was going through as planned originally.</p> <p>Q. “Did he say anything at that time about how much of that he owned?”</p> <p>A. “Mr. Hennessey said that he put in his property with ■the Goodall and Perkins holdings, and that they had formed a corporation and that he had taken an interest with the corporation, and that everything was all right.”</p> <p>Q. “Do I understand you to say that he had put his .land in for an interest in this concern; is that what he •said?”</p> <p>A. “Yes, sir.”</p> <p>Q. “Hennessey told you that it was all right to sell property ?”</p> <p>A. “Yes, sir.”</p> <p>Q. “That is all that you were talking about, wasn’t it?”</p> <p>A. “Yes, sir.”</p> <p>Stutsman, a witness for plaintiff, testified, among other things, that he was employed by Knuppenburg to sell land upon which he (Knuppenburg) had a contract. He was instructed to “get busy,” and sell to whoever would buy under the conditions, and to have the necessary surveying done, to get the land ready to sell; that he employed plaintiff and directed his work; that Knuppenburg told him to consult Hennessey, who was acquainted with the situation out there (probably meaning the location of the land) ; that Hennessey went out with him in an auto once or twice, but took no part in directing the work; that he heard Knuppenburg tell Hennessey that the company had ■elected him treasurer; and that Hennessey replied that he did not want the job; that the cards referred to and offered in evidence were not printed until late in December or the 1st of January. Other facts appear in the opinion. Plaintiff had verdict and judgment. Defendant Hennessey appeals.</p>

From Jackson: Hiero K. Hanna, Judge. Statement by Mr. Justice Bean. This is an action by J. H. Grace against R. S. McDowell to recover $4,025 as compensation for the sale of land. The cause was tried before a jury, and a verdict rendered in favor of plaintiff. From a judgment thereon, defendant appeals.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice Burnett. This is an action by D. L. Van de Wiele against T. A. Garbade. It is substantially alleged in the complaint that about May 21, 1906, the defendant offered for sale to the plaintiff 37^2 shares of the capital stock of a corporation, known as the Portland Coffee & Spice Company, for. the price of $3,750, the par value of the stock.

<p>From Malheur: Dalton Biggs, Judge.</p> <p>This is an action by Leonard Cole against the Willow River Land and- Irrigation Company. Judgment was rendered for plaintiff and defendant appeals.</p> <p>On July 5, 1911, this appeal was dismissed without an opinion and the appellant now files motion to reinstate the appeal.</p> <p>Decided September 12, 1911.</p> <p>On Motion to Reinstate Appeal.</p> <p>[117 Pac. 659.]</p>

<p>From Grant: George E. Davis, Judge.</p> <p>This is an action by the William Hanley Company, a private corporation, against J. D. Combs. From a judgment in favor of the defendant, plaintiff appeals. (See 48 Or. 409: 87 Pac. 148).</p>

From Multnomah: John B. Cleland, Judge. This is a suit by Mary E. Johnson against Charles A. White and Pauline M.. White, his wife, Burt Brown Barker, Trustee, Atlee W. Strickler, Arthur Stipe and George Wetherby. From a decree in favor of plaintiff, the defendant, George Wetherby, appeals and files motion to dismiss the appeal and for a decree in his favor, for plaintiff’s failure to file briefs.